February, 2012 | FORECLOSURE FRAUD | by DinSFLA

Archive | February, 2012

SEC sends Wells notices, Big banks could face mortgage fraud charges

SEC sends Wells notices, Big banks could face mortgage fraud charges

Since the DOJ failed miserably with mountains of evidence of fraud throughout the loans, lets see what the SEC will do.

CBS-

The SEC appears to be on the verge of doing what the Justice Department has yet to attempt — prosecuting the biggest players responsible for the mortgage securities fiasco that trashed the U.S. economy.

The securities watchdog has sent so-called Wells notices to Goldman Sachs (GS), JPMorgan Chase (JPM), and Wells Fargo (WFC), indicating that the agency may recommend enforcement proceedings against the banking firms. The investigation seems to focus on whether the companies misrepresented the quality of securities based on subprime mortgages that they bundled and sold to investors in the years leading up to the 2008 financial crisis.

[CBS]

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Attorney General Kamala D. Harris Joins Legislative Leaders to Unveil California Homeowner Bill of Rights

Attorney General Kamala D. Harris Joins Legislative Leaders to Unveil California Homeowner Bill of Rights

“-Require creditors to provide documentary evidence of ownership, the chain of title to real property, and the right to foreclose, at the time of the filing of a notice of default.”

SACRAMENTO – Attorney General Kamala D. Harris today announced the California Homeowner Bill of Rights designed to protect homeowners from unfair practices by banks and mortgage companies and to help consumers and communities cope with the state’s urgent mortgage and foreclosure crisis.

Joined by Senate President pro Tem Darrell Steinberg and Assembly Speaker John A. Pérez, Attorney General Harris announced her sponsorship of six bills designed to guarantee:
– Basic standards of fairness in the mortgage process, including an end to dual-track foreclosures
– Transparency in the mortgage process, including a single point of contact for homeowners
– Community tools to prevent blight after banks foreclose upon homes
– Tenant protections after foreclosures
– Enhanced law enforcement to defend homeowner rights – paid for by fees imposed on banks
– A special grand jury to investigate financial and foreclosure crime

“California communities and families are being devastated by the mortgage and foreclosure crisis. We must ensure the deceptive practices that caused it never happen again,” said Attorney General Harris. “The California Homeowner Bill of Rights will provide basic fairness and transparency for homeowners, and improve the mortgage process for everyone.”

The legislation builds on the California commitment announced by Attorney General Harris earlier this month, which is expected to result in $18 billion of benefits for California homeowners. That agreement included reforms for mortgages owned by the five banks that were signing parties. The California Homeowner Bill of Rights will strengthen those protections, make them permanent, and apply them to all mortgages in the state.

“When I secured the California commitment, I made clear it was only one of many steps I am taking to comprehensively address the mortgage and foreclosure crisis,” Attorney General Harris continued. “I want to thank Senate President pro Tem Steinberg, Assembly Speaker Pérez and all the other lawmakers who are supporting this urgent package of legislation for homeowners.”

[oag.ca.gov]

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Yves Smith | Yet Another Mortgage Scam: Homeowners Not Getting Cancelled Notes After Foreclosures, Hit by Later Claims

Yves Smith | Yet Another Mortgage Scam: Homeowners Not Getting Cancelled Notes After Foreclosures, Hit by Later Claims

Naked Capitalism-

As we’ve discussed the “where’s the note?” problem of mortgage securitizations, some readers who are old enough to have sold a home more than once have said that while they’d gotten a cancelled mortgage note back on their first sale, on a more recent one, they hadn’t. They were concerned, and as this post will show, they are right to be.

By way of background, the popular press has done the public a disservice by talking about “mortgages”. A “mortgage” consists of two instruments: a promissory note, which is a IOU, and a lien against the property, which is referred to as a mortgage (in non-judicial foreclosure states, they are typically called a deed of trust and confer somewhat different rights, but we’ll put that aside for purposes of this discussion).

What appears to be happening on all too often in Florida is that when borrowers signed warranty deeds in lieu of foreclosure when they can no longer keep these homes, they often get only a satisfaction of mortgage, not a cancelled note. This is not what is supposed to happen...

[NAKED CAPITALISM]

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David Dayen: Wells Fargo Shareholder Report Reveals Information on Foreclosure Fraud Settlement

David Dayen: Wells Fargo Shareholder Report Reveals Information on Foreclosure Fraud Settlement

FDL-

It’s embarrassing that the most information we’ve yet received about the foreclosure fraud settlement comes from an annual report to stockholders by Wells Fargo. In other words, we had to wait for the banks to tell us what was in the settlement, I guess because the regulatory officials who negotiated it weren’t entirely proud of their work.

The Wells notice (it begins on page 74) isn’t legal language, and it states clearly that “the terms… do not become final until approval of the settlement agreement by the U.S. District Court and execution of a consent order.” But it provides some more detailed information than the broad sketch that has been released. For example, we have the first breakdown that I’ve seen of the credit system for principal reductions.

first lien principal forgiveness for LTV less than or equal to 175%: 100% credit (must constitute at least 30% of the Consumer Relief Program credits);

first lien principal forgiveness for LTV greater than 175%: 50% credit for portion forgiven over 175% LTV;

forgiveness of forbearance amounts on existing loan modifications – 40% credit;

earned forgiveness over no more than a 3 year period: 85% credit for LTV less than or equal to 175%; 45% credit for forgiveness over 175% LTV;

second lien principal forgiveness: 90% credit for loans 90 days or less delinquent; 50% credit for loans greater than 90 but less than 180 days delinquent; 10% credit for loans 180 days more delinquent. Subject to a number of requirements, servicers participating in the settlement will be obligated to implement second lien principal forgiveness on second mortgages it owns when another participating servicer reduces principal on a first mortgage via its proprietary non-HAMP modification programs (must constitute at least 60% of the Consumer Relief Program credits when combined with the first lien principal forgiveness credits);

deficiency balance waivers on first and second lien loans: 10% credit;

short sale deficiency balance waivers on first and second lien loans: 20% to 100% credit depending on whether the servicer, servicer/lien holder or investor incurs the loss;

payment arrearages forgiveness for unemployed borrowers: 100% credit;

transitional funds paid to homeowners in connection with a short sale or deed-in-lieu of foreclosure for payments in excess of $1,500: 45% credit if a non-GSE investor bears the cost or 100% if the servicer bears the cost;

anti-blight – forgiveness of principal associated with properties where foreclosure is not pursued: 50% credit;

anti-blight – cash costs paid by servicer for property demolition – 100% credit; and

anti-blight – donation of real estate owned properties to qualifying recipients such as non-profit organizations: 100% credit.

[FIRE DOG LAKE]

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JPMorgan, BofA Strain for Qualified Staff to Clear Foreclosures

JPMorgan, BofA Strain for Qualified Staff to Clear Foreclosures

As if they ever had qualified staff.


Bloomberg-

JPMorgan Chase & Co. and Bank of America Corp. told regulators they were straining last year to hire and keep enough qualified people who could clear a backlog of foreclosure complaints.

JPMorgan, the largest U.S. bank by assets, vowed to expand training after its review found that the mortgage-servicing unit “struggled to absorb rapid staffing growth and, in many cases, hired representatives with little or no home lending industry experience.” Bank of America, ranked second, said compliance operations were understaffed as of midyear 2011 and that some people lacked the skills or stature needed to do their jobs.

[BLOOMBERG]

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Goldman, Wells Fargo May Face SEC Mortgage-Securities Claims

Goldman, Wells Fargo May Face SEC Mortgage-Securities Claims

Bloomberg-

Goldman Sachs Group Inc. and Wells Fargo & Co. were warned by federal regulators that they may face civil claims tied to sales of mortgage-backed securities.

Goldman Sachs received a so-called Wells notice Feb. 24 from the Securities and Exchange Commission relating to disclosures for a late-2006 offering of $1.3 billion in subprime residential mortgage-backed securities, the firm said today in an annual financial report. Wells Fargo said it also got an SEC notice as the government examines whether it properly described facts and risks in offering documents.

[BLOOMBERG]

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BENEFICIAL CONSUMER DISC. CO. v. VUKMAM | PA Superior Court “Act 91, Failed To Meet Face-to-Face with the mortgagee who sent Deficient Notice”

BENEFICIAL CONSUMER DISC. CO. v. VUKMAM | PA Superior Court “Act 91, Failed To Meet Face-to-Face with the mortgagee who sent Deficient Notice”

courtesy of Leagle

BENEFICIAL CONSUMER DISCOUNT COMPANY D/B/A BENEFICIAL MORTGAGE COMPANY OF PENNSYLVANIA, Appellant,
v.
PAMELA A. VUKMAM, Appellee.

No. 259 WDA 2011.
Superior Court of Pennsylvania.
Filed: January 30, 2012.

BEFORE: MUSMANNO, DONOHUE and COLVILLE*, JJ.
OPINION BY COLVILLE, J.:
This is an appeal from an order that sustained Appellee’s “Motion to Set Aside Judgment and Sheriff’s Sale.” We affirm.
The relevant background underlying this matter can be summarized in the following manner. In October of 2006, Appellant filed a complaint in mortgage foreclosure against Appellee. According to the complaint, Appellee owns a home subject to a mortgage for which Appellant is the mortgagee. Appellant averred that Appellee’s mortgage was in default due to Appellee’s failure to pay her monthly mortgage costs. The parties eventually agreed to settle the matter. In short, the parties agreed to enter a judgment in favor of Appellant for $217,508.81 together with interest. They further agreed that, so long as Appellee made regular payments to Appellant, Appellant would not execute on the judgment. The trial court approved the parties’ settlement on May 7, 2009.
On April 5, 2010, Appellant filed an affidavit of default wherein it alleged that Appellee had defaulted on her payment obligations. The following day, Appellant filed a praecipe for writ of execution. On August 2, 2010, the subject property was sold by sheriff’s sale; Appellant was the successful bidder.
On August 31, 2010, Appellee filed a document which she entitled “Motion to Set Aside Judgment and Sheriff’s Sale.” Appellee contended that the trial court lacked subject matter jurisdiction over the matter because Appellant failed to comply with the notice requirements of the Homeowner’s Emergency Mortgage Act, 35 P.S. §§ 1680.401c et seq. (“Act 91”). More specifically, Appellee maintained that the Act 91 notice she received from Appellant failed to inform her that she had thirty days to have a face-to-face meeting with Appellant. After holding a hearing, the trial court agreed with Appellee that the Act 91 notice was deficient. The court issued an order setting aside the sheriff’s sale and the judgment; the order also dismissed Appellant’s complaint without prejudice. Appellant timely filed an appeal.1
In its brief to this Court, Appellant asks us to consider the following questions:
A. Did Section 403c of Act 91 require [Appellant] to notify [Appellee] of an option to have a face to face meeting with [Appellant] where both the plain language of the statute and the history of such Act evidence a legislative intention to vest in the Agency the discretion to select which of these options should have been offered to homeowners in the Uniform Notice adopted by the Agency for use by all Lenders under the Act?
B. Was not the determination of the Pennsylvania Housing Finance Agency to remove any reference in its model Uniform Act 91 notice to homeowners having a face to face meeting with their lenders reasonable and consistent with the stated purpose and goals of such Act?
C. Should not the court below have deferred to the experience and expertise of the Agency in its administration of the Act, and should not the court below have upheld the validity of the Act 91 Notice sent to [Appellee] herein where such notice was entirely consistent with the model Uniform Notice adopted by the Agency for use by all lenders?
D. Even if the Act 91 notice should have offered [Appellee] the option of having a face to face meeting with her lender, should the court below have dismissed this action for lack of subject matter jurisdiction where [Appellee] had fully exercised her rights under Act 91 and was not in any way prejudiced by such omission?
E. Should not [Appellee] have been estopped from raising any objection to the Act 91 notice provided to her, and should not [Appellee’s] objection to such notice have been barred by laches, where [Appellee] admitted to the validity of such notice in discovery and consented to the entry of judgment, and where [Appellee’s] objection to such notice was made for the first time after a sheriff’s sale had been held almost four (4) years after the commencement of the action?
Appellant’s Brief at 3-4.
As an initial matter, we will consider whether the trial court properly entertained the Act 91 notice issue that Appellee presented in her “Motion to Set Aside Judgment and Sheriff’s Sale.” The trial court determined that, when a mortgagee provides to a mortgagor a deficient Act 91 notice and then files a mortgage foreclosure action, the court lacks subject matter jurisdiction to entertain the action. In its argument to this Court, Appellant raises a number of doctrines, including laches and res judicata, in arguing that Appellee untimely presented her Act 91 notice issue. Appellant’s Brief at 31-33.
We begin our analysis of this threshold issue by noting the following principles of law.
The test for whether a court has subject matter jurisdiction inquires into the competency of the court to determine controversies of the general class to which the case presented for consideration belongs.
In re Administrative Order No. 1-MD-2003, 936 A.2d 1, 5 (Pa. 2007) (citation omitted).
It is the law of this Commonwealth that a judgment may be attacked for lack of jurisdiction at any time, as any such judgment or decree rendered by a court that lacks subject matter or personal jurisdiction is null and void.
Bell v. Kater, 943 A.2d 293, 298 (Pa. Super. 2008) (citation omitted).
Appellee has never questioned the competency of the trial court to entertain mortgage foreclosure actions. Indeed, the Rules of Civil Procedure govern such actions, Pa.R.C.P. 1141 et seq., and save for exceptions that are irrelevant to this matter, the courts of common pleas have unlimited original jurisdiction over all actions and proceedings in this Commonwealth. 42 Pa.C.S.A. § 931(a). Appellee’s complaints regarding the deficiencies in the Act 91 notice sound more in the nature of a jurisdictional challenge based upon procedural matters. Procedurally based jurisdictional challenges can be waived. See, e.g., Hauger v. Hauger, 101 A.2d 632, 633 (Pa. 1954) (“It is the rule that consent or waiver will not confer jurisdiction of the cause of action or subject matter where no jurisdiction exists. However, this rule does not apply to . . . jurisdiction based upon procedural matters, as to which defects can always be waived.”) (citation omitted).
However, Appellee correctly highlights that, in the context of discussing subject matter jurisdiction, this Court has concluded, “[T]he notice requirements pertaining to foreclosure proceedings are jurisdictional, and, where applicable, a failure to comply therewith will deprive a court of jurisdiction to act.” Philadelphia Housing Authority v. Barbour, 592 A.2d 47, 48 (Pa. Super. 1991) (citation omitted), affirmed without opinion, 615 A.2d 339 (Pa. 1992); see also, Marra v. Stocker, 615 A.2d 326 (Pa. 1992) (concluding that, despite the fact that a judgment had been entered in the underlying mortgage foreclosure action, the trial court erred by refusing to set aside a sheriff’s sale where the mortgagee failed to provide to the mortgagor the mortgage foreclosure notice required by 41 P.S. § 403). We are bound by these decisions. See, e.g., Commonwealth v. Hull, 705 A.2d 911, 912 (Pa. Super. 1998) (“It is beyond the power of a panel of the Superior Court to overrule a prior decision of the Superior Court.”). For this reason, we conclude that the trial court properly considered whether the pertinent Act 91 notice was deficient.
Moving forward, we note that the parties agree that, at the time relevant to this appeal, Act 91 provided, in pertinent part, as follows:
Before any mortgagee may accelerate the maturity of any mortgage obligation covered under this article, commence any legal action including mortgage foreclosure to recover under such obligation, or take possession of any security of the mortgage debtor for such mortgage obligation, such mortgagee shall give the mortgagor notice as described in section 403-C. [35 P.S. § 1680.403c.] Such notice shall be given in a form and manner prescribed by the [Pennsylvania Housing Finance Agency (“agency”)]. Further, no mortgagee may enter judgment by confession pursuant to a note accompanying a mortgage, and may not proceed to enforce such obligation pursuant to applicable rules of civil procedure without giving the notice provided for in this subsection and following the procedures provided for under this article.
35 P.S. § 1680.402c (amended July 8, 2008, effective September 8, 2008) (emphasis added).
(a) Any mortgagee who desires to foreclose upon a mortgage shall send to such mortgagor at this or her last known address the notice provided in subsection (b): Provided, however, That such mortgagor shall be at least sixty (60) days contractually delinquent in his mortgage payments or be in violation of any other provision of such mortgage.
(b)(1) The agency shall prepare a notice which shall include all the information required by this subsection and by section 403 of the act of January 30, 1974 (P.L. 13, No. 6), referred to as the Loan Interest and Protection Law. This notice shall be in plain language and specifically state that the recipient of the notice may qualify for financial assistance under the homeowner’s emergency mortgage assistance program. This notice shall contain the telephone number and the address of a local consumer credit counseling agency. This notice shall be in lieu of any other notice required by law. This notice shall also advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise.
(2) The notice under paragraph (1) must be sent by a mortgagee at least thirty (30) days before the mortgagee:
(i) asks for full payment of any mortgage obligation; or
(ii) begins any legal action, including foreclosure, for money due under the mortgage obligation or to take possession of the mortgagor’s security.
(3) The proposed notice under paragraph (1) shall be published by the agency in the Pennsylvania Bulletin within one hundred twenty (120) days of the effective date of this paragraph. The notice actually adopted for use by the agency shall be promulgated as part of the program guidelines required by [35 P.S. § 1680.401c]. . . .
35 P.S. § 1680.403c (amended July 8, 2008, effective September 8, 2008) (emphasis added).
As to the facts of this case, the parties agree that Appellant sent to Appellee an Act 91 notice and that the notice informed Appellee that she had thirty days to have a face-to-face meeting with a consumer credit counseling agency. They further agree that the Act 91 notice did not inform Appellee that she could meet face-to-face with the mortgagee, i.e., Appellant. The trial court interpreted the language highlighted above to mean that the Act 91 notice sent by Appellant to Appellee had to inform Appellee that she had thirty days either to have a face-to-face meeting with Appellant or to have a face-to-face meeting with a consumer credit counseling agency. Because the Act 91 notice Appellant sent to Appellee failed to inform Appellee that she could meet with Appellant, the trial court concluded that the notice was deficient and that the court thus lacked subject matter jurisdiction to entertain the matter, presumably from the time that Appellant filed its complaint. Consequently, the court set aside the sheriff’s sale and the judgment and then dismissed Appellant’s complaint without prejudice.
Appellant begins its argument to this Court by documenting the history of Act 91 and its notice requirements. Appellant next challenges the trial court’s interpretation of the relevant version of the Act 91 notice provision. According to Appellant, the trial court’s interpretation of Section 1680.403c of Act 91 failed to give effect to the word “or.” Appellant maintains that the Legislature intended to vest the agency with the discretion to decide whether the notice sent from a mortgagee to a mortgagor should include the option of the mortgagor meeting face-to-face with the mortgagee or the alternate option of the mortgagor meeting face-to-face with a consumer credit counseling agency. Appellant believes that the agency reasonably chose to include in the notice that it promulgated the option of the mortgagor meeting face-to-face with a consumer credit counseling agency. Appellant argues that the trial court failed to give the agency’s interpretation and prerogative due deference. Jumping forward a bit in Appellant’s brief, Appellant contends that it was entitled to rely on the notice promulgated by the agency. We pause at this point to address these aspects of Appellant’s argument.
While there are multiple layers to Appellant’s argument, a relatively straightforward statutory construction analysis reveals whether the trial court erred in its interpretation of Act 91. All matters requiring statutory interpretation are guided by the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et seq.2 Swords v. Harleysville Insurance Companies, 883 A.2d 562, 567 (Pa. 2005) (citations omitted).
Under the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly’s intention. 1 Pa.C.S.[A.] § 1921(a). When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S.[A.] § 1921(b).
Id.
At the time relevant to this matter, Section 1680.402c of Act 91 clearly and unambiguously provided that, before a mortgagee could, inter alia, commence a mortgage foreclosure action against a mortgagor, the mortgagee was required to give the mortgagor a notice as described in Section 1680.403c of Act 91. Pursuant to the plain language employed in Subsection 1680.403c(b)(1), this notice was to, inter alia, advise the mortgagor that the mortgagor has thirty days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency or default. In other words, Subsection 1680.403c(b)(1) clearly and unambiguously required a mortgagee to provide to a mortgagor notice that the mortgagor had a choice of whether to meet face-to-face with the mortgagee or a consumer credit counseling agency. While Act 91 undeniably empowered the agency to prepare a uniform notice, the Legislature mandated that the notice include all of the information outlined by Act 91’s notice provision. 35 P.S. § 1680.403c(b)(1) (amended July 8, 2008, effective September 8, 2008) (“The agency shall prepare a notice which shall include all the information required by this subsection . . ..”).
Here, the notice that Appellant provided to Appellee failed to inform Appellee that she could choose to meet face-to-face with Appellant. Consequently, the notice was deficient. Yet, such a conclusion does not end our inquiry.
Relying on Wells Fargo Bank v. Monroe, 966 A.2d 1140 (Pa. Super. 2009), Appellant maintains that Appellee was required to prove that she was prejudiced by the deficiency in the Act 91 notice. According to Appellant, Appellee could not meet her burden of proof in this regard because she, in fact, met with Appellant’s representatives, which led to the parties entering the agreed upon judgment.
In Wells Fargo Bank, the Monroes defaulted on their mortgage. The mortgage servicer sent to the Monroes an Act 91 notice. Wells Fargo later filed a mortgage foreclosure action against the Monroes. The parties filed competing motions for summary judgment. The Monroes argued, inter alia, that the Act 91 notice was deficient. The trial court nonetheless granted summary judgment in favor of Wells Fargo. The Monroes appealed to this Court.
The Monroes’ first issue on appeal was “[w]hether the Trial Court erred by requiring the [Monroes] to show the occurrence of prejudice as the result of their receipt of a defective Act 91 Notice from [Wells Fargo?]” Wells Fargo Bank, 966 A.2d at 1142. This Court described the Monroes’ argument under this issue as follows:
Specifically, the Monroes contend that the Act 91 Notice they received “did not identify the Mortgagee, it only identified the Servicer, Countrywide.” Monroes’ brief at 8. Therefore, they claim that they “did not have the address of the note-holder where they could have sent items pursuant to the Real Estate Settlement Procedures Act or more importantly, a Truth-in-Lending request to rescind their mortgage.” Id. The Monroes further assert that “the Act 91 Notice did not provide a place of cure within Westmoreland County where the property is located, nor did it provide a place of cure within a County contiguous to Westmoreland County” and that it “included additional proscribed costs and fees.” Id. Based upon these identified errors and in addition to them, the Monroes argue that the trial court required them to show that they were prejudiced by the improper notice, a requirement that they claim does not comply with Pennsylvania law. Id. at 9. Essentially, the Monroes assert that if the Act 91 Notice is improper, prejudice should be presumed.
Wells Fargo Bank, 966 A.2d at 1143.
The Court disposed of this argument as follows:
In response to the Monroes’ assertions regarding the Act 91 Notice and the requirement that they show prejudice, we agree with the trial court’s conclusion.FN1 The Monroes received an Act 91 Notice and, even if it was defective, they were given and availed themselves of the opportunity to pursue mortgage assistance through the Pennsylvania Homeowners’ Emergency Mortgage Assistance Program. They met with a credit counseling agency within the thirty days as provided by the Act 91 Notice and applied for the mortgage assistance. Moreover, the Monroes have provided no legal authority for their position, nor do they suggest what rights they were due above and beyond those that were afforded to them. See Pa.R.A.P. 2119; Bombar v. West American Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007) (stating that failure to cite relevant authority may result in waiver of the issue). Accordingly, we conclude that the Monroes’ first issue is without merit.
FN1. Specifically, the trial court indicated that any issues regarding fees and costs would be addressed at the accounting which takes place after a sheriff’s sale and at the time of distribution of the proceeds. T.C.O. at 3. Moreover, we note as to the assertion that the Act 91 Notice failed to provide a local location at which the mortgagor could cure a default, the Pennsylvania Code indicates that an address to which the cure may be sent by mail is sufficient. See 10 Pa.Code § 7.2(ii) (definition of “performance”). Here, an address for Countrywide in Dallas, Texas, was provided as the location to which any cure could be mailed. The Monroes did not take advantage of this option.
Wells Fargo Bank, 966 A.2d at 1143-44.
We find Wells Fargo Bank to be sufficiently distinguishable from the matter sub judice, such that the decision in Wells Fargo Bank has no impact on our decision in this case. As best we can discern, the deficiencies cited by the Monroes, with regard to the Act 91 notice they received, did not implicate Act 91’s explicit requirement that the mortgagee’s Act 91 notice must inform the mortgagor that the mortgagor can meet face-to-face with the mortgagee or a consumer credit counseling agency. Moreover, unlike in Wells Fargo Bank, there is no failure on the part of the parties to this appeal to provide this Court with pertinent legal authority.
Act 91 contains no language that suggests that an Act 91 notice which fails to advise a mortgagor that the mortgagor can meet with the mortgagee will suffice so long as, during the course of the mortgage foreclosure litigation, the mortgagor cannot prove that he or she was prejudiced by the deficient notice. In fact, Act 91 explicitly states that, before a mortgagee can even commence a mortgage foreclosure action, it must give the mortgagor the notice described in Section 1680.403c; Subsection 1680.403c(b)(1) clearly and unambiguously mandates that the notice must inform a mortgagor, inter alia, that the mortgagor can meet face-to-face with the mortgagee.
We conclude that the trial court did not make an error of law or abuse its discretion by sustaining Appellee’s “Motion to Set Aside Judgment and Sheriff’s Sale.” In conjunction with its ruling, the court properly set aside the sheriff’s sale, vacated the judgment, and dismissed Appellant’s complaint without prejudice. Accordingly, we affirm the court’s order.
Order affirmed.

 


 

Footnotes

 


 

* Retired Senior Judge assigned to the Superior Court.

 

 

1. As to the manner in which we review such orders, our Supreme Court has stated the following:

A petition to set aside a sheriff sale is governed by our rules of civil procedure which provide that [u]pon petition of any party in interest before delivery of the . . . sheriff’s deed to real property, the court, may upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances. In Doherty v. Adal Corp., 437 Pa. 109, 261 A.2d 311 (1970) we held that a petition to set aside a sheriff sale is an equitable proceeding, governed by equitable principles. Appellate review of equitable matters is limited to a determination of whether the lower court committed an error of law or abused its discretion.

 

Marra v. Stocker, 615 A.2d 326, 328 (Pa. 1992) (citations, quotation marks, and footnote omitted).

 

 

 

2. As with all questions of law, when we interpret a statute, “our standard of review is de novo. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary.” Swords v. Harleysville Insurance Companies, 883 A.2d 562, 567 (Pa. 2005).

 

[ipaper docId=83098655 access_key=key-mtjazb8eyuapg5ye03o height=600 width=600 /]

 

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Ed Demarco testimony Before the U.S. Senate Committee on Banking, Housing, and Urban Affairs: Removing Barriers to Economic Recovery

Ed Demarco testimony Before the U.S. Senate Committee on Banking, Housing, and Urban Affairs: Removing Barriers to Economic Recovery

Statement of

Edward J. DeMarco
Acting Director
Federal Housing Finance Agency

Before the U.S. Senate Committee on Banking, Housing, and Urban Affairs
On the State of the U.S. Housing Market:
Removing Barriers to Economic Recovery

February 28, 2012

[ipaper docId=83081163 access_key=key-1qwtu3bnfbiluywebqvh height=600 width=600 /]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Dear State Attorneys General: You Failed America. Yes, You.

Dear State Attorneys General: You Failed America. Yes, You.

By

Update: My original headline said “Sold Out” where it now says failed. I think it’s more accurate.

Dear State Attorneys General:

Rumor has it that this week we will learn precisely how you failed us all regarding the criminal enterprise that is mortgage servicing and foreclosure in America. That is, rumor has it that more than two weeks after you announced a deal with five bailed-out banks, we’ll all get to see the deal. Well, precisely speaking, we’ll all see the court filing containing the settlement.

Why the Secrecy?

Why aren’t you releasing the deal before filing it? I realize that you’re not officially rulemaking regulators who must seek public comment before finalizing rules. But much of your agreement functions like a regulator’s rule making. So why wouldn’t you, as a matter of good public policy practice, make the deal public for comment before seeking to finalize it with the judge? …

[REALITY CHECK]

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Posted in STOP FORECLOSURE FRAUD0 Comments

The Federal Reserve Board action plans for supervised financial institutions to correct deficiencies in residential mortgage loan servicing and foreclosure processing

The Federal Reserve Board action plans for supervised financial institutions to correct deficiencies in residential mortgage loan servicing and foreclosure processing

For immediate release

The Federal Reserve Board on Monday released action plans for supervised financial institutions to correct deficiencies in residential mortgage loan servicing and foreclosure processing. It also released engagement letters between supervised financial institutions and independent consultants retained by the firms to review foreclosures that were in process in 2009 and 2010.

The action plans are required by formal enforcement actions issued by the Federal Reserve last year. The enforcement actions direct mortgage loan servicers regulated by the Federal Reserve to submit acceptable plans that describe, among other things, how the institutions will strengthen communications with borrowers by providing each borrower the name of a primary point of contact at the servicer; establish limits on foreclosures where loan modifications have been approved; establish robust, third-party vendor controls; and strengthen compliance programs.

The Federal Reserve enforcement actions also require the parent holding companies of mortgage servicers to submit acceptable plans that describe, among other things, how the companies will improve oversight of servicing and foreclosure processing conducted by bank and nonbank subsidiaries.

The enforcement actions further require the mortgage servicing subsidiaries to provide appropriate remediation to borrowers who suffered financial injury as a result of errors by the servicers. The engagement letters describe the procedures that will be followed by the independent consultants in reviewing servicers’ foreclosure files to determine whether borrowers suffered financial injury as a result of servicer error.

Release of the action plans and engagement letters follows reviews conducted from November 2010 to January 2011, in which examiners found unsafe and unsound processes and practices in residential mortgage loan servicing and foreclosure processing at a number of supervised institutions.

The Federal Reserve will closely follow the implementation of action plans to ensure that the financial institutions correct deficiencies and evaluate any harm that was done to homeowners in the foreclosure process in 2009 and 2010. The Federal Reserve anticipates that more engagement letters and action plans will be posted soon.

For media inquiries, call 202-452-2955

Bank of America
Action Plan:
Cover Letter for Action Plans (PDF)
Executive Summary Letter (2.1 MB PDF)
Section 2 – Board Oversight (PDF)
Section 2 – Appendix 1.1–Board Oversight (07/12/2011) (PDF)
Section 2 – Appendix 1.1–Board Oversight (12/13/2011) (PDF)
Section 3 – Risk Management (PDF)
Section 3 – Appendix 2.1–Risk Management (07/12/2011) (PDF)
Section 3 – Appendix 2.1–Risk Management (12/13/2011) (PDF)
Section 4 – Compliance (PDF)
Section 4 – Appendix 3.1–Compliance (07/12/2011) (PDF)
Section 4 – Appendix 3.1–Compliance (12/13/2011) (PDF)
Section 5 – Audit (PDF)
Section 5 – Appendix 4.1–Audit (07/12/2011) (PDF)
Section 5 – Appendix 4.1–Audit (12/13/2011) (PDF)

Citigroup
Action Plan:

Section 2 – Board Oversight (4.3 MB PDF)
Section 3 – Risk Management (4.4 MB PDF)
Section 4 – Compliance (4.5 MB PDF)
Section 6 – CitiFinancial Financial Activities (PDF)
Section 7 – CitiFinancial Oversight Policy (5 MB PDF)

EverBank
Action Plan:
Section 2 – Board Oversight (PDF)
Section 7 – Risk Management (PDF)
Section 8 – Compliance (PDF)
Section 9 – Audit (PDF)

JPMorgan Chase
Engagement Letter (12 MB PDF)
Action Plan:
Section 2 – Board Oversight–Executive Summary (PDF)
Section 5 – Compliance–Executive Summary (PDF)
Section 5 – Compliance (PDF)
Section 6 – Audit–Executive Summary (PDF)
Section 6 – Audit (PDF)
Section 7 – Risk Management–Executive Summary (PDF)
Section 7 – Risk Management (PDF)

MetLife
Action Plan:

Sections 2,3,4,5 – Status Report Update (PDF)
Sections 2,3,4,5 – Combined (PDF)
Section 5 – Response Email (PDF)
Section 5 – Additional Information (PDF)

PNC
Action Plan:
Sections 2,3,4,5 – Combined (PDF)

SunTrust
Engagement Letter (12 MB PDF)
Action Plan:
Section 2 – Board Oversight (PDF)
Section 6 – Single Point of Contact (PDF)
Section 7 – Third Party Management (PDF)
Sections 8,9 – Compliance (PDF)
Section 10 – MERS (PDF)
Section 11 – Management Information Systems (PDF)
Section 12 – Training (PDF)
Sections 15,16 – Risk Management (PDF)
Section 17 – Audit Plan (PDF)
Section 18 – Audit Program (PDF)

US Bancorp
Final Plan (PDF)

Wells Fargo
Action Plan:

Section 2 – Summary of Board Governance and Oversight Structure (PDF)
Section 2a – Board Oversight (PDF)
Section 2b – Board Oversight (PDF)
Section 2c – Board Oversight (PDF)
Section 2d – Board Oversight (PDF)
Section 3a – Enterprise Risk Management (PDF)
Section 3b – Enterprise Risk Management (PDF)
Section 3c – Enterprise Risk Management (PDF)
Section 4a – Compliance Risk Management (PDF)
Section 4b – Compliance Risk Management (PDF)
Section 4c – Compliance Risk Management (PDF)
Section 5 – Audit (PDF)

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Posted in STOP FORECLOSURE FRAUD0 Comments

2nd Circuit greenlights novel vehicle for BofA’s MBS settlement

2nd Circuit greenlights novel vehicle for BofA’s MBS settlement

Alison Frankel-

Way back in June, a day or so after Bank of America announced its proposed $8.5 billion settlement with Countrywide mortgage-backed securities investors, I wrote about the very peculiar vehicle through which the bank was seeking judicial approval of the arrangement. The settlement was filed by the Countrywide MBS trustee, Bank of New York Mellon, under Article 77 of the New York state code. Article 77, which allows a trustee to seek a judicial endorsement of trust-related decisions, is usually invoked in garden-variety trust disputes, not in an $8.5 billion deal affecting thousands of beneficiaries in 530 trusts. But the law offered distinct advantages for BofA, BNY Mellon, and the group of 22 institutional investors that negotiated the Countrywide MBS settlement. Under New York trust law, trustees have broad discretion to make decisions on behalf of the trusts they oversee. As long as the judge presiding over an Article 77 proceeding determines that the trustee has acted reasonably and hasn’t abused its discretion, the trustee’s decision gets a stamp of judicial approval. Anyone who disagrees with the trustee — and the banks and institutional investors that negotiated the BofA proposed settlement knew that there would be many investors who didn’t like it — bears the heavy burden of proving that the trustee acted outside the bounds of reason.

[REUTERS LEGAL]

[ipaper docId=83026692 access_key=key-81d5xxcxdiizski36nc height=600 width=600 /]

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Posted in STOP FORECLOSURE FRAUD1 Comment

US Bank National Association, v. Guillaume, et al. | New Jersey Supreme Court Says Lenders Must Be Named in Foreclosures

US Bank National Association, v. Guillaume, et al. | New Jersey Supreme Court Says Lenders Must Be Named in Foreclosures

Business Week-

New Jersey’s Supreme Court ruled documents indicating a bank’s intention to foreclose on a mortgage must name the lender before a residential property can be seized.

The case involves the foreclosure on an East Orange home owned by Maryse and Emilio Guillaume, who received a notice of intention to foreclose in May 2008. That notice included the name of the mortgage servicer, America’s Servicing Company while omitting the name of the lender. Credit Suisse AG made the loan and assigned it to US Bank National Association.

The state court in Trenton ruled today that the notice sent to the Guillaumes failed to comply with the state’s Fair Foreclosure Act, which requires the name and address of the actual lender, as well as contact information for a loan servicer. Failure to do so creates “potential for significant prejudice” to homeowners, the court said.

[BUSINESS WEEK]

SUPREME COURT OF NEW JERSEY

A-11 September Term 2011
068176

US BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR CSAB MORTGAGEBACKED
PASS-THROUGH
CERTIFICATES, SERIES 2006-3,
Plaintiff-Respondent,

v.

MARYSE GUILLAUME and EMILIO
GUILLAUME,
Defendants-Appellants,
and
CITY OF EAST ORANGE,
Defendant.

[ipaper docId=83026127 access_key=key-1dy350f9dun9v27dcohr height=600 width=600 /]

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Posted in STOP FORECLOSURE FRAUD4 Comments

California asks for Fannie Mae, Freddie Mac foreclosure hiatus

California asks for Fannie Mae, Freddie Mac foreclosure hiatus

LA TIMES-

California’s attorney general has asked for a suspension of foreclosures on loans controlled by Fannie Mae and Freddie Mac.

Atty. Gen. Kamala D. Harris in a letter asked the regulator of the government-controlled mortgage titans to halt foreclosures in California until the agency has completed a “thorough, transparent analysis of whether principal reduction is in the best interests of struggling homeowners as well as taxpayers.”

It is not the first time that Harris has tangled with the giants — last year she sued the two mortgage giants after they refused to answer subpoenas regarding their mortgage and foreclosure practices. That case remains pending.

Harris has also called on Edward DeMarco, the head of the Federal Housing Finance Agency that regulates Fannie and Freddie, to step down, accusing him of not doing enough for borrowers.

[LA TIMES]

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Posted in STOP FORECLOSURE FRAUD1 Comment

SB 1890: Bill to streamline foreclosures moves one step closer to Florida law

SB 1890: Bill to streamline foreclosures moves one step closer to Florida law

Palm Beach Post-

For the first time since the real estate crash crippled Florida’s economy and battered struggling homeowners, a bill to hasten foreclosures through the courts is headed to the full House and Senate.

A narrow 6-4 vote Monday in a specially scheduled meeting of the Senate Banking and Insurance Committee was the final hurdle for the proposal (SB 1890) to be heard by both chambers. The plan aims to reduce the amount of time a bank can pursue a homeowner for unpaid mortgage debt, while speeding foreclosures on abandoned homes and in cases where homeowners have no legitimate defenses.

Bill opponents fear borrowers will get caught up in a quickie foreclosure wheel without time to question bank documents, and argue that not only are portions of the plan unconstitutional, but that the overall proposal is unnecessary.

“Most of this bill is just totally useless,” said Sarasota-based attorney Henry Trawick, an expert on Florida’s judicial rules and author of Trawick’s Florida Practice and Procedure. “The courts already have the ability to do virtually everything they want to do here.”

[PALM BEACH POST]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Massachusetts Home Seizures Threatened in Loan Case: Mortgages

Massachusetts Home Seizures Threatened in Loan Case: Mortgages

“If you’re going to take someone’s home away, you’ve got to prove you have the right to do it, and you have to follow the law when you do it,” Atty Glenn Russell said.

Busines Week-

The highest court in Massachusetts is poised to rule as soon as this month on a foreclosure case that could lead to a surge in claims from home owners seeking to overturn seizures.

The justices are deciding whether to uphold a lower court ruling that gave a Boston home back to Henrietta Eaton after Sam Levine, a 25-year-old Harvard Law School student, argued in front of the nation’s oldest appellate court that the loan servicer made mistakes when it foreclosed because it didn’t hold the note proving she was obliged to pay the mortgage.

“If the Massachusetts court says this defense works, that would have a huge ripple effect across the country,” said Kurt Eggert, a professor at Chapman University School of Law in Orange, California.

[BUSINESS WEEK]

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Posted in STOP FORECLOSURE FRAUD0 Comments

HUD CHARGES BANK OF AMERICA WITH DISCRIMINATING AGAINST HOMEBUYERS WITH DISABILITIES

HUD CHARGES BANK OF AMERICA WITH DISCRIMINATING AGAINST HOMEBUYERS WITH DISABILITIES

HUD No. 12-036
Shantae Goodloe
(202) 708-0685
FOR RELEASE
Monday
February 27, 2012

HUD CHARGES BANK OF AMERICA WITH DISCRIMINATING AGAINST HOMEBUYERS
WITH DISABILITIES

Bank of America allegedly applied discriminatory lending requirements for borrowers with disabilities

WASHINGTON–The U.S. Department of Housing and Urban Development (HUD) today announced that it is charging Bank of America with discriminating against homebuyers with disabilities. HUD alleges that Bank of America imposed unnecessary and burdensome requirements on borrowers who relied on disability income to qualify for their home loans and required some disabled borrowers to provide physician statements to qualify for home mortgage loans.

The Fair Housing Act makes it illegal to discriminate in the terms and conditions of a loan to an individual based on a disability, including imposing different application or qualification criteria, and makes it illegal to inquire about the nature or severity of a disability except in limited circumstances not applicable here.

“Holding homebuyers with disabilities to a higher standard just because they rely on disability payments as a source of income is against the law,” said John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “Mortgage companies may verify income and have eligibility standards but they may not single out homebuyers with disabilities to delay or deny financing when they are otherwise eligible.”

HUD’s charge is based on a “Secretary-initiated investigation,” and the investigation of complaints filed by two individual borrowers in Michigan and one borrower in Wisconsin who claimed that Bank of America required them to provide personal medical information and documentation regarding their disability and proof of continuance of their Social Security payment in order to qualify for a home mortgage loan. The charge is also being issued as part of the work being conducted by the Federal Financial Fraud Enforcement Task Force’s non-discrimination working group.

According to HUD’s charge, Bank of America allegedly asked some borrowers for proof of their disabilities and sought evidence of the continuation of their Social Security income before approving loans, after first denying them. The matter will now be handled by the Department of Justice.

FHEO and its partners in the Fair Housing Assistance Program investigate approximately 10,000 housing discrimination complaints annually. People who believe they are the victims of housing discrimination should contact HUD at 1-800-669-9777 (voice), (800) 927-9275 (TTY).

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.
HUD is working to
strengthen the housing market to bolster the economy and protect consumers; meet the
need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build
inclusive and sustainable communities free from discrimination; and transform the way HUD does business.
More information about HUD and its programs is available on the Internet at
www.hud.gov and
http://espanol.hud.gov
. You can also follow HUD on twitter @HUDnews, on facebook at
www.facebook.com/HUD, or sign up for news alerts on HUD’s News Listserv.

source: hud.gov

image: ladisabilitylaw

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Posted in STOP FORECLOSURE FRAUD1 Comment

Laurie Goodman | Robo-signing “the AG Settlement is like charging a patient an extra fine when their doctor is found guilty of malpractice.”

Laurie Goodman | Robo-signing “the AG Settlement is like charging a patient an extra fine when their doctor is found guilty of malpractice.”

HW-

The $26 billion settlement between government officials and the five largest mortgage servicers will exacerbate servicer conflict of interest by allowing the banks to use investor dollars to foot the bill, according to Amherst Securities Group.

The analysis comes as representatives from mortgage banks, trade groups and organizations expressed relief as the settlement with state attorneys general and federal prosecutors finally arrived.

By receiving credit for principal write-downs on the loans owned by investors, servicers can settle their liability claims with private investor money, Laurie Goodman and her team of analysts at Amherst noted.

[HOUSING WIRE]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Abigail Field: Insider Says Promontory’s OCC Foreclosure Reviews for Wells are Frauds. Brought to You by HUD Sec. Donovan

Abigail Field: Insider Says Promontory’s OCC Foreclosure Reviews for Wells are Frauds. Brought to You by HUD Sec. Donovan

If anyone can set the record straight, Abigail is just the person to do it!

Naked Cap-

U.S. Housing Secretary Shaun Donovan has embarrassed himself yet again. This time, though, he’s gone in for total humiliation. See, he praised the bank-run Office of the Comptroller of the Currency’s (OCC) foreclosure reviews as an important part of the social justice delivered by the mortgage “settlement“. But thanks to an insider working on an OCC review, we know that process is a sham. Worse, the insider’s story shows that enforcement of the settlement is likely to be similar, which is to say, meaningless. Doesn’t matter how pretty the new servicing standards are if the bankers don’t have to follow them.

Let’s start with Donovan’s sales pitch for the OCC reviews:

For families who suffered much deeper harmwho may have been improperly foreclosed on and lost their homes and could therefore be owed hundreds of thousands of dollars in damages — the settlement preserves their ability to get justice in two key ways.

First, it recognizes that the federal banking regulators have established a process through which these families can receive help by requesting a review of their file. [ACF: That’s the OCC process] If a borrower can document that they were improperly foreclosed on, they can receive every cent of the compensation they are entitled to through that process.

Second, the agreement preserves the right of homeowners to take their servicer to court. Indeed, if banks or other financial institutions broke the law or treated the families they served unfairly, they should pay the price — and with this settlement they will. [bold throughout mine]

Now, the justice of the settlement has been debunked many times over. And David Dayen debunks Donovan’s OCC pitch here. What’s important is that Bank Housing Secretary Donovan wants you to believe the Wells Fargo OCC process is a meaningful contribution to holding bankers accountable and compensating victims.

Wells Fargo’s Fraudulent OCC ‘Independent’ Foreclosure Reviews

[NAKED CAPITALISM]

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Posted in STOP FORECLOSURE FRAUD0 Comments

PHH MTGE. CORP. v. Ramsey | OH Appeals Court “affidavits and exhibits submitted in connection with plaintiff’s SJ motion reveal genuine issues of material fact”

PHH MTGE. CORP. v. Ramsey | OH Appeals Court “affidavits and exhibits submitted in connection with plaintiff’s SJ motion reveal genuine issues of material fact”

2012 Ohio 672

PHH Mortgage Corporation fka Cendent Mortgage Corporation dba Coldwell Banker Mortgage, Plaintiff-Appellee,
v.
Andrew Ramsey et al., Defendants-Appellants.

 

No. 11AP-559.
Court of Appeals of Ohio, Tenth District, Franklin County. 

Rendered on February 21, 2012.
Lerner, Sampson & Rothfuss, and Patricia K. Block, for appellee.Goldman & Rosenthal, and Lee S. Rosenthal, for appellants.

DECISION

BRYANT, J.

{¶ 1} Defendants-appellants, Andrew Ramsey and Precision Real Estate Group, LLC, appeal from a judgment of the Franklin County Court of Common Pleas that granted the summary judgment motion of plaintiff-appellee, PHH Mortgage Corporation fka Cendent Mortgage Corporation dba Coldwell Banker Mortgage, entered judgment for plaintiff in the principal balance of $53,956.13 plus interest, determined plaintiff to be the first lien on the property subject of the mortgage, and ordered foreclosure on the subject premises. Defendants assign a single error:

The Trial Court committed error when it granted Summary Judgment to Appellee because Appellants presented evidence of genuine issues of material fact to be litigated.

Because genuine issues of material fact preclude granting summary judgment to plaintiff, we reverse.

I. Facts and Procedural History

{¶ 2} Plaintiff filed a complaint on November 10, 2009 against, among others, defendant Andrew Ramsey. Count One of the complaint alleged defendant owed plaintiff $53,956.13, together with interest at the rate of 7.00500 percent per year from July 1, 2009 as a result of his default on a note of which plaintiff was the holder. Count Two sought to reform the mortgage securing the note to correct a scrivener’s error, and Count Three asked the court not only to declare plaintiff to be the first lien on the property but to foreclose on the mortgage.

{¶ 3} After Precision Real Estate Group, LLC was added as a defendant, both defendants filed a joint answer to plaintiff’s complaint on April 27, 2010. Plaintiff responded to their answer with a motion for summary judgment filed on July 16, 2010; on the same date, plaintiff sought default judgment against those parties who had not filed an answer to the complaint. Before responding to plaintiff’s motion for summary judgment, defendants sought and were granted leave to file a counterclaim against plaintiff. They followed the counterclaim with a memorandum opposing plaintiff’s motion for summary judgment.

{¶ 4} On November 18, 2010, the trial court referred the case to mediation and vacated the scheduled trial date pending the outcome of mediation. When mediation proved unsuccessful, the court rescheduled the matter for trial. With leave of court, plaintiff filed a renewed motion for summary judgment on its complaint and defendants’ counterclaim.

{¶ 5} After the parties briefed the motion, the trial court filed an entry on May 27, 2011, determining no genuine issue of material fact existed and plaintiff was entitled to judgment and foreclosure as a matter of law. Accordingly, the trial court granted plaintiff summary judgment, entered a decree in foreclosure, reformed plaintiff’s mortgage and deed, and dismissed with prejudice defendants’ counterclaim.

II. Summary Judgment—Genuine Issues of Material Fact

{¶ 6} Defendants’ single assignment of error asserts the trial court wrongly granted plaintiff summary judgment because genuine issues of material fact exist to be resolved at trial.

A. Applicable Law

{¶ 7} An appellate court’s review of summary judgment is conducted under a de novo standard. Coventry Twp. v. Ecker, 101 Ohio App.3d 38, 41 (9th Dist.1995); Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588 (8th Dist.1994). Summary judgment is proper only when the parties moving for summary judgment demonstrate: (1) no genuine issue of material fact exists, (2) the moving parties are entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56; State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181 (1997).

B. Affidavit

{¶ 8} In responding to plaintiff’s summary judgment motion, Ramsey admitted to being the obligor on the note and mortgage attached to plaintiff’s complaint but stated payments were current through July 2009 under the terms of the note and mortgage. According to the affidavit, he “always made [his] payments online.” (Affidavit, ¶ 3.)

{¶ 9} As Ramsey’s affidavit explained, he attempted to make his August payment electronically, or online, on August 3, 2009 but received an online response that plaintiff was not able to process his payment at that time. He again attempted to pay online on August 6 and 10 but again received the response that plaintiff was unable to process the payment. Ramsey attached to his affidavit the responses received online.

{¶ 10} On August 13, he again attempted an online payment, and the payment appeared to be successful. At the end of the transaction, however, he did not receive a confirmation number. He called the help desk and was given a confirmation number for his August payment. The person at the help desk further told Ramsey “that the payment would be pushed through the system and `not to worry.'” (Affidavit, ¶ 5.) After receiving a late payment notice from plaintiff on August 16, 2009, Ramsey again called the help line on August 21, 2009. The person Ramsey spoke to informed him “that Plaintiff was having some system issues but that [his] payment would be processed as he could see it `stuck’ in the system.” (Affidavit, ¶ 6.)

{¶ 11} On September 3, 2009, Ramsey attempted to complete his September payment online, but it could not be processed. At that time, Ramsey became aware that the August 2009 payment was never processed as promised, because a late fee was charged to his account. When he checked his bank account, he learned his August payment was never debited from his account.

{¶ 12} Ramsey again called the help desk, and the person he spoke to said she would process his payment. Ramsey expressed his concern about the payment being considered late, and the help desk person acknowledged the late payment would be placed on his credit report. Ramsey asked that it be removed because the delay was not his fault, but he was told nothing could be done about it. Ramsey asked to speak with someone else; he “was told there was no one else to speak with.” (Affidavit, ¶ 7.) Ramsey requested to speak with the legal department, but the help desk person refused to transfer him and hung up the telephone.

{¶ 13} After being unable to make an online payment on September 3, Ramsey contacted the Coldwell Banker/King Thompson real estate agent who sold him the property to see if he could suggest any avenue to clear up the matter. Someone from the local office called Ramsey, said they would check on the situation and get back to him, but did not. As a result, on September 9, 2009, Ramsey physically went to the Coldwell Banker/King Thompson office on Polaris Parkway, explained the situation to the receptionist, and asked if he could speak with someone at that location. He was informed no one at the location had authority in the matter, he attempted payment, and his payment was refused.

{¶ 14} The next day, Ramsey forwarded a letter to Coldwell Banker/King Thompson, together with a check in the amount of $1,600 for the August and September 2009 payments on the note. The letter explained the situation, but the check was never cashed or returned to Ramsey. On October 5, 2009, Ramsey sent another check in the amount of $1,600 as payment for October and November, accompanied by another letter of explanation. Again, the check was neither cashed nor returned.

C. Plaintiff’s Arguments

{¶ 15} Aware of defendants’ factual contentions from their response to plaintiff’s first summary judgment motion, plaintiff’s renewed motion for summary judgment alleged plaintiff was entitled to judgment because (1) Ramsey did not attempt to make payment and has no contractual right to pay online, and (2) plaintiff was not required to accept partial payment in the event of default. Plaintiff argues similarly on appeal.

1. Online payments

{¶ 16} Plaintiff points to the terms of the note and mortgage to support its contention that Ramsey had no contractual right to pay electronically, as the mortgage specifies that payments shall be made in U.S. currency. Whether the provision addresses the issue at hand is questionable at best, as it appears to preclude payment in foreign currency. Moreover, nothing in the note or mortgage precludes electronic payment. To the contrary, the document contemplates electronic funds transfer as an acceptable mode of payment, specifying that if any check or other instrument the lender receives as payment is returned unpaid, the lender may require “any and all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms, as selected by the Lender: * * * Electronic Funds Transfer.” (Mortgage, ¶ 1.)

{¶ 17} In addition, Ramsey’s affidavit states he always made payments electronically. As a result, a genuine issue of material fact exists as to whether plaintiff waived any provision of the agreement that possibly required other than electronic payment. See EAC Properties, L.L.C. v. Brightwell, 10th Dist. No. 10AP-853, 2011-Ohio-2373, ¶ 23, appeal not allowed, 129 Ohio St.3d 1506, 2011-Ohio-5358 (noting that whether a party’s inconsistent conduct amounts to waiver involves a factual determination within the province of the trier of fact).

{¶ 18} Plaintiff next suggests that even if online payments are acceptable, payments are not deemed received until the lender receives them at the location designated in the note or such other location as the lender may designate. Plaintiff argues that because Ramsey was aware his attempted online payments were ineffective but nonetheless failed to send them to the designated location, he failed to make payment according to the note and mortgage. Ramsey’s affidavit explains his efforts to make the regular payments beginning with his August payment. The affidavit states he called on August 13, 2009 concerning the August payment and received confirmation for it. Although plaintiff contends its records do not reflect a payment in August, the dispute over the August payment is in itself an issue for a trier of fact to resolve after hearing all the evidence, resolution of which may affect Ramsey’s subsequent payments, at least one of which was forwarded in advance of the due date.

2. Timeliness and partial payment

{¶ 19} Plaintiff also asserts Ramsey’s attempt to make his August payment was untimely, noting payments were to be made on the first of the month but Ramsey did not attempt payment until, at the earliest, August 3, 2009. Plaintiff’s argument presents at least two issues. Initially, the pertinent documents specify a late fee, suggesting failure to make payment on the first of each month is not necessarily a default on the note, even though it may cause Ramsey to incur late fees. Secondly, the exhibits attached to plaintiff’s affidavit indicate Ramsey on many occasions made payments after the first of the month, and plaintiff accepted them, thus raising an issue of plaintiff’s possible waiver of the provisions requiring payment on the first of the month.

{¶ 20} Pertinent to the waiver issue, both the note and mortgage contain anti-waiver provisions. The note states that “[e]ven if, at a time when [the borrower is] in default, the Note Holder does not require [the borrower] to pay immediately in full as described above, the Note Holder will still have the right to do so if [the borrower is] in default at a later time.” (Note, ¶ 6(D).) To the extent the provision applies under these circumstances, the record evidence does not appear to address whether plaintiff invoked its rights. The mortgage states that “Lender may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights hereunder or prejudice to its right to refuse such payments or partial payments in the future.” (Mortgage, ¶ 1.) To the extent the provision applies, the evidence again is unclear that plaintiff ever invoked the provision, as its September 9, 2009 letter to Ramsey not only does not declare him in default, but demands payment for the months of August and September.

{¶ 21} In the end, Ramsey’s version of the payment history between the parties creates genuine issues concerning the due date for payments and the applicability of the anti-waiver provisions. Cf. Fairfield Natl. Bank v. Lininger, 5th Dist. No. 02-CA-25, 2002-Ohio-4875, ¶ 31 (noting “[i]t is well settled that if one accepts late payments and subsequently wishes to insist on a specific due date as a `time of the essence’ requirement, prior notification thereof is required”) and First Natl. Bank of Am. v. Pendergrass, 6th Dist. No. E-08-048, 2009-Ohio-3208, ¶ 25 (noting “it has repeatedly been held that a mortgagee’s previous acceptance of late loan payments does not constitute a waiver of the mortgagee’s right to accelerate and foreclose on a loan following a subsequent default where, as here, the relevant loan documents contain `anti-waiver’ provisions”). The trial court did not address those issues. In the absence of the trial court’s addressing the meaning and applicability of the note and mortgage anti-waiver provisions to the facts provided in the parties’ affidavits and exhibits, we decline to do so in the first instance.

{¶ 22} Lastly, plaintiff’s motion for summary judgment asserts that because Ramsey was in default on his payment, the entire amount of the note became due, leaving plaintiff free to reject Ramsey’s attempt to partially pay by tendering the September and October payments to plaintiff. Because a genuine issue of material fact exists as to whether Ramsey defaulted on the note, plaintiff’s argument premised on a default is premature.

{¶ 23} In the final analysis, the affidavits and exhibits submitted in connection with plaintiff’s summary judgment motion reveal genuine issues of material fact regarding whether Ramsey defaulted in his payment on the note, making summary judgment inappropriate. Defendants’ single assignment of error is sustained, the judgment of the trial court is reversed, and this matter is remanded for further proceedings consistent with this decision.

Judgment reversed and cause remanded.

SADLER and CONNOR, JJ., concur.

[ipaper docId=82912900 access_key=key-wtm0jsetejzucgzyxdn height=600 width=600 /]

 

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Ohio Courts’ Reluctance to Admit Fraud Causes 16 years of Foreclosure Litigation

Ohio Courts’ Reluctance to Admit Fraud Causes 16 years of Foreclosure Litigation

Via MSFraud

Jack Wright – MSFraud.org            

February 23, 2012         

CLEVELAND – This week, Ohio’s 8th District Court of Appeals heard oral arguments in what must be one of the most disturbing foreclosure cases in the nation’s history.  It is the case of Richard Davet, and one of the most disturbing aspects of the case is it should have been dismissed with the bank’s 1996 filing.  Subsequent Ohio case law agrees.

In 1996, NationsBanc (now Bank of America) initiated a foreclosure action against the Davet family and invoked the jurisdiction of the court by claiming to be the owner and holder of the loan.   Mr. Davet, who the Wall Street Journal would later describe as prescient, immediately challenged Bank of America’s standing to sue and counterclaimed for damages. Davet established Fannie Mae was the owner and holder.   This was more than a decade before the public would learn about the systemically false ownership claims made by banks.  Without the proper party, the law directs courts to summarily dismiss the case.  And that is where the Davet case should have ended.  The truth should have set Davet free in 1996.  It did not.

Instead of dismissing the complaint, the 1996 court somehow granted judgment to Bank of America after it was already established they were not the real party, and therefore the court was without jurisdiction to render judgment.

Since then, Davet has been stuck inside a judicial treadmill, and for reasons that many consider highly suspect, the seemingly influenced Ohio courts have vigorously refused to release Davet from the injustice of its own void ab initio judgment.  For the last 16 years, the Davet’s lives have been manipulated and controlled by a judgment the law considers mere waste paper.  This should be a crime in itself.

Fool a judge once –shame on you; manipulate judges thousands of times and you can turn a city into the “Epicenter for Foreclosures” and 60 Minutes will come to town to film the damage you caused.  

Don’t Give Up On Ohio Courts Just Yet

Granted, Ohio’s judiciary does not have a highly-regarded history like Massachusetts, which is poised to rule as soon as this month on a foreclosure case that could justly lead to a surge in claims from home owners seeking to overturn unlawful seizures. But Ohio has shown promise during Davet’s ordeal with widely-cited foreclosure opinions of its own, such as Wells Fargo v. Jordan, Wells Fargo v. Byrd and Deutsche Bank v. Triplett that all fit squarely within the four corners of Davet’s case and support vacating the void ab initio judgment:

 –if plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.”,  

– “in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage.

The Jordan opinion also states:

    “Several judges have held that a complaint must be dismissed if the Plaintiff cannot prove that it owned the note and mortgage on the date the complaint was filed.”


        Also encouraging, Davet’s current appeal has been assigned to the author of Wells v. Jordan.  So there is much confidence this court will not and cannot make the same mistakes as other Davet courts.  Davet claims he still has legal title and his latest appeal is an action to get his home back.  It is an important issue and Ohio’s former Attorney General Marc Dann and attorney Grace Doberdruk are representing him.

The mishandling of wrongful foreclosures became so great it attracted 60 Minutes to come to Cleveland to report on the devastation these preventable foreclosures had caused. 

In an earlier November 2010 article, Ohio Chief Magistrate Bucha and other Cuyahoga County judges said that they fear document foreclosure defects may give former homeowners a claim on the title that will affect future sales.  That scenario fuels Judge Russo’s sense of urgency to sort out problems now, she said.  “If courts around the country do not handle this on an individual case basis and there are later problems with the title, the courts will have participated with the clouding of the title,” Russo said. “The potential for harm is so immense at so many levels.”

Two months later, when asked what homeowners should do when they find fraud and forgery was used to wrongfully take their home, Bucha told MSFraud that Ohio has legal remedies to reverse the process on an individual case by case basis.  But, the Davet case keeps confirming Ohio courts are reluctant to disturb these massive frauds upon its courts, county records and residents.

Recent Audits Overwhelmingly Support Davet’s 1996 Claims

In 1996, the Internet was basically useless for researching mortgage fraud.  If Davet had posted Bank of America was trying to take his home and they did not own it, his post may have been flagged as inappropriate or spam.  But today, the truthfulness of that statement is being uncovered across the country.  Just last week, an audit by San Francisco county officials of about 400 recent foreclosures there determined that almost all involved either legal violations or suspicious documentation.

 In Massachusetts, McDonnell Property Analytics did an audit for County Registrar John O’Brien and found 75% of assignments of mortgage were invalid.  People are still trying to get these astonishing figures to fit inside their heads.  I mean, what do you call this level of incompetence?  Wall Street and the mortgage industry are calling it: Succe$$

Cleveland witnessed this in 1996 and made the conscious decision to ignore it; repeatedly.  Since then, the question has remained – why?  One Ohio judge referenced foreclosures on his Internet bio as: “the gift that keeps on giving”, as foreclosures paid for the remodeling of his courthouse.  Yes, you can blame the forgeries and unlawful foreclosures on the banks, but you also have to place blame on our fact-finders and  gatekeepers of justice for getting it wrong greater than 75% of the time. 

Now, the 8th District Court of Appeals has another opportunity to redeem itself; only this time it has been matured by the visual damage and alarming statistics.  If it should not, then what is the point of continuing to audit, study, survey and investigate the biggest foreclosure fraud in our history if the findings promote nothing more than scandalous headlines?

Davet was not supposed to figure out so early in the game that the bank did not own his home, so when he did, Bank of America had to find a way to at least make it appear they owned it.  Several days after they filed for foreclosure, the bank’s law firm, Carlisle, McNellie, allegedly perpetrated a fraud upon the court when it hastily forged a 1996 assignment – after the fact.  But they named the loan originator who no longer owned Davet’s loan.  The courts apparently didn’t care and Davet’s home later sold.

This disturbing result worked so well, it would be repeated in countless cases until Cleveland eventually became branded as the “Epicenter for Foreclosures” by the New York Times.

Keep in mind, Davet came along in 1996. The mortgage industry was still tweaking the concealment features of its new theft by deception scheme and MERS was soon to make its property record-smashing debut.  The success of this Foreclosure Machine would depend greatly on the participation of a judiciary that could be relied upon to blindly rubber-stamp foreclosures.  In areas where that reliance worked best, foreclosures exploded, lives were ruined, and many communities were left struggling to survive.

The new model also leaned heavily on its favorite statistic:  9 out of 10 people targeted would not know to challenge the banks ownership, because back then, the public and the courts largely believed if a bank presented a statement to a court of law, it must be truthful.   Intimidated, 9 out of 10 homeowners would leave the keys on the counter and walk away.

The bank would also walk away… with the free house and all of the homeowner’s equity.  To obtain this windfall, the bank would write a threat letter to the homeowner; or if necessary, fill out a computer-generated court form and take it to a court for a stamp of approval.  It worked almost like a conveyer belt, with a robotic-like judge sitting at the stamping station near the end of the line.  Florida’s Rocket Docket became famous for it.  Did it help?  No, it propelled Florida into one of the worst foreclosure states in the country.  Illegal foreclosures flourished in areas where the judiciary and law enforcement were complicit.  Compare that to Nevada.  After it imposed criminal penalties for what the banks and their lawyers were doing – illegal foreclosures virtually stopped.

Did Davet’s Evidence Threaten The Foreclosure Machine?

If not, then why did Bank of America bring in the “influential” firm Jones Day, to litigate Davet into the ground?  Yes, Jones Day, litigating for years against a pro se litigant on one house with an $83K mortgage.

Think about it.  If banks could win possession of a home they do not own, with a borrower not in material default, and while the homeowners were living in it… why, they could take anybody’s home.

And that is why today we still hear horror stories of banks foreclosing on homes that didn’t even have a mortgage; foreclosing on the wrong home, and even one where there wasn’t a home to foreclose.  Curiously, it seems nobody has asked the bank: “Since you clearly do not own this home, where did you get the “data” contained in the documents you filed with the court?”

Remember, Wall Street banks were betting specific loan pools would default, while they had their own servicers like EMC, Litton, Ocwen, SPS/Fairbanks, etc., busy manufacturing the pool’s performing loans into default and foreclosure.  Lists of property data was being shipped to foreclosure factories (Servicers) and mills (law firms) with instructions to foreclose on every property on the list.  To foreclose on performing loans, Servicers would simply manufacture a default by holding or rejecting timely payments and then tack on a laundry list of fake fees to make it appear the account was in default.  We are still hearing these same stories today.  This fabricated data would falsely claim the homeowner was not paying.  That would be all a judge would need to grant the foreclosure before the homeowner had a chance to say: “Huh?”

How Much Court Influence Do Banks Really Have?

During a recent private meeting with Bank of America’s chief of litigation, Mr. Davet found it odd that he was told at least 10 times: “You will never beat us in Court.”  Was she saying Bank of America’s board is ready to use whatever resources it has to make sure Davet doesn’t win?   Or did she just mean their investor’s money?

How Will Ohio Address Its Wrongful Foreclosure Problem?

bulldozed-home.jpgWhat would be the condition of Cleveland today if its courts had taken a proactive approach to tainted foreclosures when it first noticed the problem in 1996?  Would it have become the foreclosure epicenter?  Will the court now take the results of recent studies, surveys and audits into consideration?  Or will they continue aiding in the conspiracy of concealment?  

Financial institutions continue to soak up judicial resources in perpetuating this fraud as an alternative to facing the music.   As Ohio’s Judge Christopher Boyko so eloquently stated in his now famous Opinion in 2007:

“The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate.”

Ohio Courts may decide it’s time to turn it around and start undoing the damage.  And they certainly have a good place to start.

 

Davet Reply Brief

Appellee’s Brief

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WILLIAMS v. WELLS FARGO | ORDER DENYING DEFENDANTS’ MOTION TO EXCLUDE EXPERT, AND GRANTING PLAINTIFFS’ MOTION TO CERTIFY CLASS ACTION

WILLIAMS v. WELLS FARGO | ORDER DENYING DEFENDANTS’ MOTION TO EXCLUDE EXPERT, AND GRANTING PLAINTIFFS’ MOTION TO CERTIFY CLASS ACTION

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 11-21233-Civ-SCOLA

RAY WILLIAMS, et al.,
Plaintiffs,

vs.

WELLS FARGO BANK, N.A., et al.,
Defendants.

[ipaper docId=82831936 access_key=key-s27qmuaqm9f02yvq20e height=600 width=600 /]

 

 

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Foreclosure settlement a failure of law, a triumph for bank attorneys

Foreclosure settlement a failure of law, a triumph for bank attorneys

_Who are you going to put in jail? They all work for the government. Do you think “O” is going to lock any of his administration up? Goldman, Citi, JP, are all run DC…LPS is just getting started.


Barry Ritholtz-

After many months of wrangling, a foreclosure settlement has been reached between 49 state attorneys general and a consortium of banks.

It is an epic failure of law and a triumph for bank attorneys.

It will accomplish little of value, as I’ll explain. First, let’s recall what the “robosigning” foreclosure scandal was all about.

Foreclosure is an extremely serious issue in American jurisprudence. As a nation of laws with strong respect for property rights, we have always treated this process appropriately. After all, having a sheriff forcibly evict a family that typically made a down payment, moved into a home, lived there for some years, made payments, etc., is disruptive — for the family, the lender and the neighborhood.

Foreclosure laws vary from state to state. However, all are specific and precise as to the legal steps that must be followed, from the homeowner’s initial delinquency onward. There are benefits to giving the homeowner a chance to “cure their default.” It is in everyone’s interest for the homeowner to catch up if possible.

[WASHINGTON POST]

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Posted in STOP FORECLOSURE FRAUD1 Comment

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