B. Stern and DJSPA as “Employers” under Single Employer Test
Plaintiffs argue that WARN Act liability is imputed to Stern and DJSPA under the single employer test. Stern and DJSPA contend that Plaintiffs fail to sufficiently allege all the elements of the single employer test.
Two or more affiliated businesses which constitute a “single employer” may be held jointly and severally liable for violations of the WARN Act. Pearson v. Component Tech. Corp., 247 F.3d 471, 478 (3d Cir. 2001). The Department of Labor (“DOL”) regulations issued under the WARN Act provide that two or more affiliated businesses may be considered a single business enterprise for WARN Act purposes. 20 C.F.R. § 639.3(a)(2). The regulations provide a five-factor balancing test to assess whether affiliated businesses constitute a “single employer,” which would subject them to joint liability under the WARN Act. See Pearson, 247 F.3d at 478.
The five DOL factors are as follows: (1) common ownership, (2) common directors and/or officers, (3) unity of personnel policies emanating from a common source, (4) dependency of operations, and (5) de facto exercise of control. Id. at 487– 490; 20 C.F.R. § 639.3(a)(2).
Plaintiffs adequately allege the five elements of the single employer test.
F. Dana Winslow, a N.Y. State Supreme Court Justice in Long Island’s Nassau County, said there has been only “a marginal improvement in what is being submitted to the court.”
For example, financial institutions are “showing a better chain of title” about who owns the debt, he said. “But I’m not seeing any additional clarity on who has control over the actual mortgage note signed by the borrower and lender and where the note is.”
Remember Arizona’s Senate Bill 1259 that would have required servicers to produce a declaration that they had the proper chain of title prior to foreclosing on someone’s home? You know… the one that passed the Arizona Senate 28-2 that I wrote about back on February 23rd of this year?
Remember maybe a month ago when I tried to follow up to see how the bill was proceeding in the Arizona House of Representatives… only to find out that on the way to the House… it disappeared… the text replaced by some bill about firefighting with the same number? And no one was saying a word about it? If you missed it, I wrote about it here.
Okay, well… it appears that the story is not over yet.
MERSCORP Names Bill Beckmann New President & CEO, he will also lead the Reston-based company’s subsidiary Mortgage Electronic Registration Systems Inc.
During his tenure at CitiMortgage, the company had four million residential mortgage customers, representing over $800 billion in serviced assets. Beckmann had responsibility for strategy, sales, operations, capital markets, and regulation/compliance. Prior to this, he was president of Citigroup’s real estate servicing and technology group, providing customer service, technology and default management services to customers of CitiMortgage, CitiFinancial and Citi’s Auto business.
From 1997 to 2003 Beckmann was the chairman and CEO of The Student Loan Corporation. He has also worked in IBM’s Corporate Strategy and Internet Marketing divisions, Citigroup’s Card Products group, and European American Bank’s strategy department in various marketing, strategy, finance and treasury roles.
Beckmann is on the Boards of Junior Achievement of Mississippi Valley, Enterprise Community Partners and Enterprise Community Investments. He holds an M.S. in Management from the Stanford Sloan Program and a B.A. in Mathematical Economics from Brown University.
Ingham County Registrar of Deeds Curtis Hertel Jr. said last week that he had found at least 60 instances of such fraudulent documents in his office – documents presented by mortgage lenders as part of the foreclosure process.
He is not alone. Eaton and Clinton counties also reported questionable documents, and Oakland County Registrar of Deeds Bill Bullard wrote to Schuette about the problem earlier this week.
U.S. Bank National Assoc.
v.
Antoine Duvall et al.
This cause is pending before the Court on the certification of a conflict by the Court of Appeals for Cuyahoga County. On review of the order certifying a conflict, it is determined that a conflict exists. The parties are to brief the issue stated in the court of appeals’ Judgment Entry filed January 31, 2011, as follows:
“To have standing as a plaintiff in a mortgage foreclosure action, must a party show that it owned the note and the mortgage when the complaint was filed?”
It is ordered by the Court that the Clerk shall issue an order for the transmittal of the record from the Court of Appeals for Cuyahoga County.
The conflict cases are U.S. Bank, N.A. v. Bayless, Delaware App. No. 09
CAE 01 004, 2009-Ohio-6115, U.S. Bank, N.A. v. Marcino, 181 Ohio App.3d 328,
2009-Ohio-1178, Bank of New York v. Stuart, Lorain App. No. 06CA008953,
2007-Ohio-1483, and Countrywide Home Loan Servicing, L.P. v. Thomas, Franklin
App. No. 09AP-819, 2010-Ohio-3018.
“We’re not happy” with the time it takes to give borrowers an answer, said Christine Larsen, head of operations for retail financial services at J.P. Morgan, who is responsible for implementing the consent orders. The bank is trying to speed response times by setting new customer-communication deadlines.
Contact: Corinne Russell (202) 414-6921
Stefanie Johnson (202) 414-6376
April 28, 2011
Fannie Mae and Freddie Mac to Align Guidelines for Servicing
Delinquent Mortgages Updated Framework to Include Servicer Incentives and Penalties
Washington, DC – Federal Housing Finance Agency Acting Director Edward J. DeMarco has directed Fannie Mae and Freddie Mac (the Enterprises) to align their guidelines for servicing delinquent mortgages they own or guarantee. The updated framework will establish uniform servicing requirements as well as monetary incentives for servicers that perform well and penalties for those that do not.
“FHFA’s directive to align Enterprise policies for servicing delinquent mortgages should result in earlier servicer engagement to identify the best solution available for homeowners, given their individual circumstances,” DeMarco said.
The updated guidelines also address the so-called “dual track” by requiring servicers to contact borrowers as soon as they become delinquent and focus solely on remediating that delinquency. The foreclosure process may not commence if the borrower and servicer are engaged in a goodfaith effort to resolve the delinquency. The servicer must conduct a formal review of each case to ensure a borrower has been considered for foreclosure alternatives before the loan is referred for foreclosure. Even after foreclosure processing begins, financial incentives are provided to encourage servicers to continue to help borrowers pursue a foreclosure alternative.
Consistent with statements recently issued by federal and state regulators, this initiative is intended to deal with identified problems in mortgage servicing. The updated framework will streamline and expedite borrower outreach, align mortgage modification terms and requirements, and establish a consistent schedule of performance-based incentive payments and penalties. Fannie Mae and Freddie Mac will each issue detailed guidelines to their servicers
in the second and third quarters of 2011.
“Once fully implemented by the servicing industry, the Enterprises’ aligned policies should give homeowners a greater understanding of the process and faster resolution by requiring earlier contact, more frequent communication, and prompt decisions,” said DeMarco. “Equally important, the newly aligned policies will minimize taxpayer losses by ensuring that Enterprise loans are serviced efficiently and fairly.”
The Federal Housing Finance Agency regulates Fannie Mae, Freddie Mac and the 12 Federal Home Loan Banks. These government-sponsored enterprises provide more than $5.9 trillion in funding for the U.S. mortgage markets and financial institutions.
The Carpenters Pension Fund of West Virginia filed a complaint in federal court in Manhattan yesterday claiming the banks and a group of unnamed co-conspirators deliberately understated their borrowing costs to depress Libor, lowering their interest expenses on products tied to the rate.
The promise made by a mortgage company in San Diego could not have been more blunt. “Accredited Home Lenders offers an unusually broad line of subprime mortgage products for wholesale mortgage brokers,” the company’s Web site boasted in its heyday.
“Send us your toughest loans, and let us earn your business.”
Those were the days: from 2005 to 2007, Accredited made $29 billion in subprime loans.
Bank of America Corp. (BAC) was accused by a top official at the Iowa attorney general’s office of engaging in a divide-and-conquer strategy by undermining support for the settlement of a nationwide probe into foreclosure practices, a person familiar with the matter said.
The bank tried to get attorneys general to break away from those supporting the proposed accord, Iowa Assistant Attorney General Patrick Madigan said during a recent conference call, according to the person. A second person familiar with the settlement talks said the bank sought to sow dissent among the states, eight of which have publicly criticized the proposal’s terms. Both people asked not to be identified because the talks are private. Madigan declined to comment.
“We have held face to face negotiating sessions and our negotiations continue,” Iowa Attorney General Tom Miller, a Democrat who leads the 50-state effort, said in a statement. “We believe all the banks are negotiating in good faith.”
The housing market’s woes continue forcing people into rentals, further depressing the home ownership rate in a nation that now has fewer homeowners than were created during the housing boom.
In the first quarter, 66.5% of Americans owned homes, down from 67.2% a year earlier, the Census Bureau reported. The rate last hit this level in 1998.
During the boom, when easy credit made mortgages available with less regard for income or ability to pay, the ownership rate surged to a record 69.2% in 2004?s second and fourth quarters and stayed near that level until the recession deepened.
(Reuters) – The Internal Revenue Service has launched a review of the tax-exempt status of a widely-held form of mortgage-backed securities called REMICs.
The IRS confirmed to Reuters that the review comes in response to mounting evidence that banks violated tax requirements by mishandling the transfer of mortgages to REMICs, short for Real Estate Mortgage Conduits.
Regulatory agencies exist to protect the public, not the corporations they regulate. The head of the Office of Comptroller of the Currency doesn’t seem to understand that. But that’s not why John Walsh needs to resign.
The OCC was created to stabilize the economy, make it easier to conduct trade, and protect people’s savings. It didn’t do that. In fact, it ignored the warnings raised by others. But that’s not why John Walsh needs to resign.
This part shall apply to nonjudicial foreclosures conducted under part II by power of sale, of residential real property that is occupied by one or more mortgagors as a primary residence; provided that this part shall not apply to actions by an association to foreclose on a lien for amounts owed to the association that arise under a declaration filed pursuant to chapter 514A or 514B, or to a mortgagor who has previously participated in dispute resolution under this part for the same property on the same mortgage loan.
A recent 60 Minutes segment investigated Mortgage Electronic Registration Systems (MERS), a private company that acts as an agent for institutions seeking to speed up the processing of their loan modifications. MERS, which claims to handle about 60 million loans (nearly half of all home loan modifications in the country) with fewer than 50 staff. In an April 2010 lawsuit, the founder of MERS admitted that the untrained and non-certified “notaries” were allowed to illegally notarize hundreds of documents daily, as well as “robo-sign” up to 4,000 foreclosure documents daily.
<SNIP>
“There are increasing reports around the country of wrongful foreclosures,” said Recktenwald. “It is especially important to protect our citizens from fraudulent practices.” Recktenwald referred to states that have passed comprehensive legislation and seen dramatic reductions in foreclosures. “I want to express that this is personal for me. Our home is a sacred meeting place for friends, family and community–not a game piece on a Monopoly board. Why I’ve chosen to make Hawaii my home is that I am joined with fellow stewards of the land. Our love of this land is greater than the greed of Wall Street.”
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011
STATE OF FLORIDA,
OFFICE OF THE ATTORNEY GENERAL,
Appellant,
v.
SHAPIRO & FISHMAN, LLP,
Appellee.
No. 4D10-4526
[April 27, 2011]
Excerpt:
At oral argument, the Attorney General conceded it had decided to proceed exclusively under this one particular statutory provision. It could have proceeded under another statutory provision, such as a criminal investigative subpoena if other relevant criteria were satisfied, which would not require the subpoena to qualify as connected to “trade or commerce” under FDUTPA. This was exclusively the choice of the state.
Several months ago, the major banks sounded the all clear signal regarding robo-signing in non-judicial foreclosure states, namely Michigan and Massachusetts. It appears those claims of non-exist robo-signing were either greatly exaggerated or were overly optimistic.
MFI-Miami has uncovered evidence of forged documents drafted and signed by attorneys and employees at Orlans Associates at their corporate offices in Troy, Michigan. These fraudulent documents will impact tens of thousands of foreclosures done by Ally Financial, Bank of America, Deutsche Bank, JPMorgan-Chase, Fannie Mae and others in Michigan and Massachusetts over the past five years and makes the investigation being done by Ingham County Register of Deeds, Curtis Hertel, Jr. and Oakland County Clerk Bill Bullard into the robo-signing of Linda Green at the now defunct DocX look like a kindergarten production of the movie, The Firm.
Keon Williams’ fight to keep his house has taken another strange twist: The Milwaukee man arrived home Monday night to find that the locks had been changed on one of his doors on orders from Harris Bank, even though a court order says he can stay in the house for now.
“They admitted they had sent somebody to change the locks,” Williams’ lawyer, Geoffrey Gnadt, said after an emergency court hearing Tuesday. “They did apologize profusely – but there are costs.”
The very fact that this item “LPS fires back with motion seeking sanctions against Alabama attorney,” was treated as a news story by Housing Wire is further proof that Housing Wire is above all committed to promoting client and mortgage industry interests and only incidentally engages in random acts of journalism.
LPS is desperate to create a shred of positive-looking noise in the face of pending fines under a Federal consent decree, mounting private litigation, and loss of client business under the continued barrage of bad press. Housing Wire, who has LPS as one of its top advertisers, is clearly more than willing to treat a virtual non-event as newsworthy to help an important meal ticket.
If you know anything about litigation, particularly when small fry square off against large companies, it’s standard for the well funded party to engage in a war of attrition against the underdog. One overused device is to threaten or file for sanctions. Even when they are weak or groundless, they still waste opposing counsel’s time and energy.
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