[Cite as BAC Home Loans Servicing, L.P. v. Booth, 2012-Ohio-487.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

BAC HOME LOANS SERVICING, L.P.
FKA COUNTRYWIDE HOME LOANS
SERVICING, L.P.
Plaintiff-Appellant

-vs-

CARL B. BOOTH, ET AL.
Defendant-Appellees

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
Case No. 2011CA00161

O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Common
Pleas Court, Case No. 2010CV03436

JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 6, 2012

APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellees
ELIZABETH S. FULLER DAVID L. DINGWELL
Designated as Primary Counsel Tzangas, Plakas, Mannos & Raies, LTD

Lerner, Sampson & Rothfuss 220 Market Avenue South
120 East Fourth Street, 8th Floor Eighth floor
Cincinnati, Ohio 45202 Canton, Ohio 44702

Stark County, Case No. 2011CA00161 2

Hoffman, J.

(¶1) Plaintiff-appellant BAC Home Loans Servicing L.P., fka Countrywide
Home Loans Servicing L.P., appeals the June 22, 2011 Order entered by the Stark
County Court of Common Pleas in favor of Defendants-appellees Carl B. Booth and
Cynthia L. Booth.

STATEMENT OF FACTS AND THE CASE

(¶2) Appellees Carl and Cynthia Booth executed a promissory note in the
amount of $69,750.00 in favor of America’s Wholesale Lender to secure property at
9341 Oak Avenue S.E., East Sparta, Ohio. To secure the borrowed sum, Appellees
granted a first mortgage to Mortgage Electronic Registration Systems, Inc, as nominee
for America’s Wholesale Lender. The loan was later acquired by Appellant Countrywide
Home Loans Servicing, L.P., nka BAC Home Loans Servicing, L.P.

(¶3) Appellees defaulted on the mortgage, and Appellant accelerated the
amount due on the note. Appellant then filed a foreclosure action on September 20,
2010, and Appellees filed an answer on October 8, 2010. The trial court scheduled the
matter for mediation. Appellant failed to send a representative at the appointed time,
and did not make a representative available by phone as agreed upon. The trial court
then mandated a dispositive motion deadline of April 28, 2011, and scheduled a nonjury
trial for June 13, 2011. The assignment notice was sent via facsimile to Appellant’s
counsel.

(¶4) On June 13, 2011, Appellant’s counsel moved the trial court for a
continuance of the scheduled trial date, which the trial court denied.

(¶5) On June 13, 2011, Appellees’ counsel moved the trial court to dismiss the
complaint with prejudice.

(¶6) On June 22, 2011, the trial court ordered dismissal of the complaint with
prejudice. The same day, June 22, 2011, Appellant filed a notice of dismissal with the
trial court voluntarily dismissing the case without prejudice. The trial court’s order of
dismissal is filed prior to Appellant’s notice of dismissal in the trial court docket.

(¶7) On July 21, 2011, Appellant moved the trial court to vacate the dismissal
with prejudice pursuant to Civil Rule 60(B).

(¶8) Prior to the trial court’s ruling on Appellant’s 60(B) motion, Appellant filed a
notice of appeal with this Court, assigning as error:

(¶9) “I. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT DID NOT RECEIVE
SUFFICIENT NOTICE OF THE TRIAL COURT’S INTENTION TO DISMISS THE CASE
WITH PREJUDICE.

(¶10) “II. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT’S CONDUCT DID NOT
NECESSITATE SUCH A HARSH SANCTION.

(¶11) “III. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE APPELLANT WAS WITHIN ITS RIGHTS
TO VOLUNTARILY DISMISS ITS COMPLAINT WITHOUT PREJUDICE SINCE THE
JUNE 13, 2011 TRIAL NEVER COMMENCED.

(¶12) “IV. THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S
COMPLAINT WITH PREJUDICE BECAUSE THE DISMISSAL UNJUSTLY ENRICHED

APPELLEES WHO WERE PREVIOUSLY DISCHARGED OF THE UNDERLYING
DEBT IN A CHAPTER 7 BANKRUPTCY.”
I, II, and III.

(¶13) Appellant’s first, second and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.

(¶14) The standard of review of an involuntary dismissal issued by the trial court
with prejudice is an abuse of discretion. Nelson v. Alpha Enterprises, Inc., 2003-Ohio-
5422. Civil Rule 41(B) states,

(¶15) “(B) Involuntary dismissal: effect thereof

(¶16) “(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply
with these rules or any court order, the court upon motion of a defendant or on its own
motion may, after notice to the plaintiff’s counsel, dismiss an action or claim.

(¶17) “(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the
court without a jury, has completed the presentation of the plaintiff’s evidence, the
defendant, without waiving the right to offer evidence in the event the motion is not
granted, may move for a dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court as trier of fact may then determine them
and render judgment against the plaintiff or may decline to render any judgment until the
close of all the evidence. If the court renders judgment on the merits against the plaintiff,
the court shall make findings as provided in Civ. R. 52 if requested to do so by any
party.

(¶18) “(3) Adjudication on the merits; exception. A dismissal under division (B) of
this rule and any dismissal not provided for in this rule, except as provided in division

(B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its
order for dismissal, otherwise specifies.”

(¶19) Appellant argues the trial court did not afford them notice of the trial
court’s intent to dismiss the case with prejudice, and Appellant was unable to appear at
the scheduled trial on June 13, 2011.

(¶20) Upon review of the record, the March 24, 2011 Report of Mediation
indicates the case should be returned to the docket due to the failure of Appellant to be
available at mediation either in person or by phone as previously agreed upon. Further,
Appellant moved the trial court for a continuance of the trial date asserting:

(¶21) “Bank of America and BAC Home Loans Servicing, LP (together “BAC”)
has established a process to insure that reasonable efforts to avoid foreclosure
sale/judgment have been exhausted before proceeding to sale/judgment. These efforts
have not yet been completed in connection with this loan and plaintiff therefore requests
that the trial be postponed for 120 days to allow these efforts to conclude. Plaintiff
notes that the case is under the 1 year guideline as same was filed September of 2010.”

(¶22) The June 13, 2011 transcript of the proceedings before the trial court
indicates the trial court called the matter for trial and Appellees were present in the
courtroom with counsel. The trial court reviewed the record and Appellees’ counsel
made a brief statement as to the proceedings to date and Appellant’s failure to
prosecute and act in good faith. The trial court overruled Appellant’s motion for a
continuance, and dismissed Appellant’s complaint because counsel for Appellant failed
to appear for the scheduled trial.

(¶23) Appellant received notice the case had been set for trial, effectively putting
them on notice if they failed to appear for trial, the case may be dismissed for lack of
prosecution. The record reflects Appellant had notice of the trial date, and throughout
the proceedings had failed to actively participate. We find the trial court did not abuse
its discretion in dismissing Appellant’s complaint with prejudice due to Appellant’s failure
to appear at the scheduled trial. We find failure to appear for a scheduled trial different
from case law addressing dismissals for want of prosecution for failing to abide by
interlocutory court orders or discovery related disputes.

(¶24) Our review of the trial court docket indicates the trial court’s order of
dismissal was filed prior to Appellant’s notice of voluntary dismissal without prejudice in
the record.

(¶25) The first, second and third assignments of error are overruled.

IV.

(¶26) Appellant’s fourth assignment of error asserts Appellees were unjustly
enriched by the trial court’s judgment as the underlying debt was previously discharged
in a Chapter 7 bankruptcy.

(¶27) Appellant’s complaint states at Count I:

(¶28) “Plaintiff further says that the defendants, Carl B. Booth and Cynthia L.
Booth, are immune from personal liability on said note by virtue of Bankruptcy Case No.
08-64367, United States Bankruptcy Court, Northern District of Ohio, Eastern Division.”

(¶29) We find Appellant’s complaint does not set forth a claim for unjust
enrichment.

(¶30) Upon review of the record, while the trial court’s dismissal of Appellant’s
complaint with prejudice may well appear to present a windfall for Appellees, Appellant’s
failure to appear at trial cannot be circumvented by now claiming unjust enrichment.
Appellant’s own actions lead to the trial court’s dismissal of the complaint with prejudice,
and Appellant was the architect of that outcome.

(¶31) Appellant’s fourth assignment of error is overruled.

(¶32) The June 22, 2011 Order of the Stark County Court of Common Pleas is
affirmed.

By: Hoffman, J.
Gwin, P.J. and
Wise, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin_____________________
HON. W. SCOTT GWIN

s/ John W. Wise _____________________
HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
BAC HOME LOANS SERVICING, L.P. :
FKA COUNTRYWIDE HOME LOANS :
SERVICING, L.P. :
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
CARL B. BOOTH, ET AL. :
:
Defendant-Appellees : Case No. 2011CA00161
For the reasons stated in our accompanying Opinion, the June 22, 2011 Order of
the Stark County Court of Common Pleas is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN

s/ John W. Wise______________________
HON. JOHN W. WISE

Scribd

 

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Read the case: The Conclusion…If we could only turn back time: IN THE MATTER OF MERSCORP, INC. v. Romaine, 2005 NY Slip Op 9728 – NY: Supreme Court, Appellate Div., 2nd Dept. 2005

NYLawJournal.com-

More than five years ago, two worried judges on the New York Court of Appeals described the emerging electronic mortgage recording industry as a potential nightmare for consumers and local governments, and urged the Legislature to make sure old statutes conformed to modern realities.

But nothing was done in Albany, and the concerns raised by then Chief Judge Judith S. Kaye and current senior associate Judge Carmen Beauchamp Ciparick are now allegations in a lawsuit Attorney General Eric T. Schneiderman filed last week targeting the Mortgage Electronic Registration System (MERS) and the financial industry that created and uses it.

In recent days, as settlement discussions in the nationwide mortgage servicing agreement intensified, the banks demanded the elimination of the MERS claims as a settlement condition, but Mr. Schneiderman refused to yield.

[NYLAWJOURNAL.COM]

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

Decided on February 7, 2012

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2011-01986
2011-01987
(Index No. 06-03395)

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White
Plains, N.Y. (Robert Hermann, Lee S. Wiederkehr, Jacob E. Amir,
and Eliot Schuman of counsel), for appellant-respondent.
McMahon, McCarthy & Verrelli, Bronx, N.Y. (Matthew J.
McMahon of counsel), for respondent-
appellant.

DECISION & ORDER

In an action to foreclose a mortgage on certain real property, the plaintiff appeals from (1) a decision of the Supreme Court, Westchester County (Friedman, J.H.O.), dated February 12, 2010, made after a nonjury trial, and (2) so much of a judgment of the same court dated August 18, 2010, as, upon the decision, declared that a certain deed and the subject mortgage are null and void, and is in favor of the defendants and against it dismissing the complaint, and the defendant Lucy Spadafora cross-appeals (1) from the same decision, and (2), as limited by her brief, from so much of the same judgment as imposed an equitable lien against the subject property in favor of the plaintiff in the sum of $328,796.97.

ORDERED that the appeal and cross appeal from the decision are dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510); and it is further,

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced the instant action against, amongst others, the defendant John Spadafora (hereinafter John) seeking to foreclose a mortgage (hereinafter the subject mortgage) on certain real property allegedly owned by John (hereinafter the subject premises). Sometime thereafter, Lucy Spadafora (hereinafter Lucy), John’s wife, was granted leave to intervene in the action as a party defendant, claiming that her signature was forged on the deed by which she allegedly had conveyed title to the subject premises to John (hereinafter the subject deed).

The Supreme Court conducted a nonjury trial, after which it issued a decision in which it explained its conclusion, inter alia, that Lucy’s signature on the subject deed was forged, and that title to the subject premises remained with her, but that the plaintiff is entitled to an equitable lien against the subject premises.

Thereafter, the Supreme Court entered a judgment upon the decision in which it declared that both the subject deed and the subject mortgage on the premises are null and void, and [*2]dismissed the complaint. The plaintiff appeals from those portions of the judgment. The judgment also, inter alia, imposed an equitable lien against the subject premises in favor of the plaintiff in the sum of $328,796.97. Lucy cross-appeals from that portion of the judgment.

Contrary to the plaintiff’s contention, under the circumstances, the Supreme Court providently exercised its discretion in limiting the rebuttal testimony of the plaintiff’s handwriting expert (see Farrell v Gelwan, 30 AD3d 563, 563-564; American Linen Supply Co. v M.W.S. Enters., 6 AD3d 1079, 1081; Gobbelet v Hit Cycle Corp., 121 AD2d 682, 683; cf. Simpson v Bellew, 161 AD2d 693, 698), and in refusing to allow two notaries public to testify as rebuttal witnesses (see Farrell v Gelwan, 30 AD3d at 563; see also Hageman v Jacobson, 202 AD2d 160, 161; Kaminsky v Segura, 4 Misc 3d 1019[A], 2004 NY Slip Op 50963[U][2004], affd 26 AD3d 188).

“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial judge who was in the position to assess the evidence and the credibility of the witnesses” (D’Argenio v Ashland Bldg., LLC, 78 AD3d 758, 758; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; A. Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961, 961).

Here, the Supreme Court’s determinations that the signature on the subject deed was forged, rendering it and the subject mortgage invalid (see Bryant v Bryant, 58 AD3d 496, 496; cf. John Deere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 622), and that the plaintiff is entitled to an equitable lien against the subject premises (see King v Pelkofski, 20 NY2d 326, 333; Federal Natl. Mtge. Assn. v Woodbury, 254 AD2d 182, 182; cf. Crispino v Greenpoint Mtge. Corp., 304 AD2d 608, 609-610), are warranted by the facts. Thus, we decline to disturb those determinations.
RIVERA, J.P., ENG, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

Must Watch Video

by nyuschooloflaw on Feb 9, 2012

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

Market Watch-

The investigation concerns whether the Board of Directors and certain other officials breached their fiduciary duties by engaging in the improper processing of mortgages and mortgage foreclosures as well as the improper sharing of attorney fees. Furthermore, the investigation concerns whether LPS issued materially false and misleading statements concerning various governmental and regulatory investigations, including statements meant to “downplay the robo-signing scandal and LPS’s central role therein.”

[MARKET WATCH]

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

WSJ-

Two attorneys from one of New York’s largest — and most notorious –foreclosure firms have set up their own shop in suburban Buffalo with 18 attorneys and counting, and they have plans for a downstate satellite office on Long Island.

Steven J. Baum PC shut its doors in November, following a rocky half year that included probes of how the firm handled foreclosures by New York State Attorney General Eric T. Schneiderman and the U.S. Attorney’s Office for the Southern District of New York.

The likely death knell: a New York Times column that mentioned a Halloween party where some firm employees came dressed as foreclosed-upon homeowners. (See our handy timeline here)

Now two former Baum lawyers, Adam Gross and Amy Polowy, have teamed up with another attorney, Linda Orlans, of Michigan, to form Gross, Polowy & Orlans LLC. The Buffalo News has the full report from upstate here.

[WALL STREET JOURNAL]

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

All I have to say is “Linda Green” is only one person and the missing documents will be put up as soon as MERS gets them signed and notarized!

American Banker-

More than a day after the announcement of a mammoth national mortgage servicing settlement, the actual terms of the deal still aren’t public. The website created for the national settlement lists the document as “coming soon.”

That’s because a fully authorized, legally binding deal has not been inked yet.

The implication of this is hard to say. Spokespersons for both the Iowa attorney general’s office and the Department of Justice both told American Banker that the actual settlement will not be made public until it is submitted to a court. A representative for the North Carolina attorney general downplayed the significance of the document’s non-final status, saying that the terms were already fixed.

“Once the documents are finalized, they’ll be posted to nationalmortgagesettlement.com,” the representative said in an email to American Banker.

[AMERICAN BANKER]

© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

By: Dawn Rapoport, Esq.

Subject: Background and some case law

The predecessor to this section dates back to 1993 and, in short, it effectively provided that a show cause hearing could be had for the benefit of the creditor for the purpose of determining whether the debtor could be forced to pay rent as a condition to maintaining its defense in a foreclosure suit.  A couple of bright attorneys challenged the statute as being unconstitutional on the grounds that it was a denial of procedural due process and that it unconstitutionally allowed the legislature to prescribe procedure which is an area reserved by the Constitution to the courts, thereby violating the separation of powers provision. (The version of the statute they attacked is attached above.)  The third DCA bought into the argument, but the Supreme Court reversed while having no problem in concluding that since the procedural aspects of the statute were directly intertwined to its remedial purpose, there was no separation of powers violation.  (See Caple v. Tuttle).  Based upon the strong negative case law concerning this issue, there is almost no chance of the defense bar likely winning a separation of powers argument.  The supreme court also dismissed the procedural due process arguments for reasons which are not that germane to the pending legislation.

Nevertheless, while we thought it might be worth speaking to the bright lawyers who initially prevailed in the 3^rd DCA; one attorney is now a sitting judge on the 3^rd DCA and out of bounds for purposes of discussion, the other, currently employed by Grey-Robinson. 

Which still leaves us with the question does the procedure provided by the pending legislation render it unconstitutional as a violation of procedural due process.  For those not familiar with the body of procedural due process law, the devil is always in the details.  First of all well over 99% of the law in this area involves state action where the government; be it Federal, State or local is one of the litigants.  The courts allow much wider latitude to the conduct of private parties so we start with a very uphill battle. Very rarely have the courts concluded that private actors have not been provided with procedural due process when it has been demonstrated that the allegedly aggrieved party was given notice of the hearing and the opportunity to present evidence.

However, we do think the facts of the foreclosure crisis coupled with some of the language available concerning procedural due process keeps us in the ballgame.

Subject: Draft to Start Public Awareness – Position Statement Bullet Points and Stats

Draft to Start Public Awareness on HB213:

Stats found at www.frauddigest.com by Lynn Szymoniak, Esq.

There are at least 5 legislators with a solid background in real estate transactional work.  Most Legislators and the Public think: 1) they have time to wait for a more consumer friendly bill before they have to take action and 2) they think that if these houses get back on the market then the market will turn around.  They are wrong.

During the course of the session, those legislators with a real estate background should be extremely amenable to persuasive arguments on title integrity being totally undermined by a judicial process which has minimal concern for ferreting out the truth.  They need to share their heightened awareness with their colleagues.

The Bill is past the point of making it more consumer friendly.  In light of the evidence that has surfaced regarding foreclosure abuses by banks, robo-signing, securitization, fraud (in the inducement too) our legislature should not even consider such a bill.  While the public in general feels that there are a lot of people milking the system and living two years or more for free, it is not because of the consumer, but the bank’s conduct.

The proposed legislation is bad for the common good.

As we see it:

·        If the Banks and HOAs get everything they wanted from the Legislature this spring there would be economic chaos, because the real estate markets would be flooded with more properties, driving prices down another 25% or more, thereby driving tax rolls way down and bankrupting local governments;

·        FACT: 95% of the foreclosure cases are not contested;

·        FACT: Yet, it still takes over 600 days for the average foreclosure case to wind its way through the court system;

·        The reality demonstrates that banks are the ones who numerically and statistically are the ones most responsible for the slowness in which foreclosure cases move through the system, and the legislation is completely unnecessary;

·        The process is already in place, if they followed it, they could have a foreclosure done in 75 -90 days;

·        Wholesaling our constitutional rights is not the answer; this creates a summary proceeding, it’s totally unnecessary if the procedures already in place were used properly;

·        The procedure provided by the pending legislation makes it unconstitutional as a violation of procedural due process;

·        Unfortunately, well over 99% of the law in the area of procedural due process involves state action where the government; be it Federal, State or local is one of the litigants.  The courts allow much wider latitude to the conduct of private parties so homeowners start off with an uphill battle. Very rarely have the courts concluded that private actors have not been provided with procedural due process as long as it has been demonstrated that the allegedly aggrieved party was given notice of the hearing and the opportunity to present evidence;

·        The facts of the foreclosure crisis, robo-signing, securitization, servicing problems, and fraud, coupled with some of the language available concerning procedural due process keep consumers in the ballgame;

·        Every case currently being litigated is under assault with this legislation;

TWO KEY FACTORS IN THE PENDING LEGISLATION THAT CONSUMERS SHOULD BE OUTRAGED AT:

·        Section 7 of the legislation provides:

Section 7. The amendments to ss. 702.10, Florida Statutes,  and the creation of s. 702.13, Florida Statutes, are remedial in  nature and shall apply to causes of action pending on the  effective date of this act. Sections 702.11 and 702.12, Florida  Statutes, created by this act, apply to cases filed on or after July 1, 2012.

·        Make no mistake about it paragraph (1)(a)5 is the dagger.  It provides:

State that, if any defendant files defenses by a motion, a verified or sworn answer, affidavits, or other papers or appears personally or by way of an attorney at the time of  the hearing, the hearing time shall be used to hear and consider the defendant’s motion, answer, affidavits, other papers, and other evidence and argument as may be presented by any defendant or any defendant’s counsel, and the court shall  then make a determination as to whether a preponderance of the evidence and the arguments presented support entry of a final judgment of foreclosure, and if so, the court shall enter a final judgment of foreclosure ordering the clerk of the court to  conduct a foreclosure sale.

STATISTICS OF BANK OWNED HOMES – as of January 28, 2012 by Lynn Szymoniak, Esq. on Fraud Digest – Evidence the banks owning more properties is not changing anything

·         Home ownership in Florida’s 33 counties with population of 100,000 or greater as of January 24, 2012 is partially set forth here. The 34 counties with populations under 100,000 have a combined population of 1,278,080, approximately the population of Hillsborough County. The home ownership of Hillsborough has been used to approximate the ownership in the 34 counties, you can find the stat on each county at www.frauddigest.com

·         FLORIDA HOMES OWNED BY 8 LARGEST BANKS: 22,112

·         FLORIDA HOMES OWNED BY FANNIE & FREDDIE: 7,170

·         FL HOMES OWNED BY BANK OF AMERICA: 5,143

·         FL HOMES OWNED BY WELLS FARGO: 4,727

·         FL HOMES OWNED BY DEUTSCHE BANK: 3,114

·         FL HOMES OWNED BY BANK OF NEW YORK: 2,855

·         In January, 2012, in Palm Beach County, Florida, for example, 11 banks, FANNIE and FREDDIE and one mortgage servicer were the biggest homeowners, with 2,907 homes owned in total. Palm Beach County is the third largest county, by population, in Florida.

·         The banks and servicer owned 2,284 homes; FANNIE & FREDDIE owned 623 homes.

·         Three of the banks, Bank of America, Wells Fargo and Deutsche Bank, owned more homes than FANNIE.

·         Wells Fargo (including Wachovia) was the largest homeowner, owning 551 homes.

·         Bank of America and Deutsche Bank were close second and third largest, owning 496 homes and 454 homes, respectively. (The Bank of America total represents homes owned by Bank of America, BAC Home Loans Servicing and Countrywide.)

·         FANNIE owned 441 homes; FREDDIE owned 182 homes.

·         1 – MIAMI-DADE COUNTY (pop. 2,496,435)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 650
BANK OF NEW YORK: 367
CHASE: 254
CITIBANK: 222
DEUTSCHE BANK: 676
FANNIE: 515
FREDDIE: 213
HSBC: 324
U.S. BANK: 121
WELLS FARGO: 579
BANKS: 3,193/F & F: 728

·         2 – BROWARD COUNTY (pop. 1,748,066)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 624
BANK OF NEW YORK: 479
CHASE: 157
CITIBANK: 99
DEUTSCHE BANK: 445
FANNIE: 712
FREDDIE: 188
HSBC: 205
U.S. BANK: 489
WELLS FARGO: 493
BANKS: 2,991/F & F: 900

·         3 – PALM BEACH COUNTY (pop. 1,320,134)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 497
BANK OF NEW YORK: 338
CHASE: 180
CITIBANK: 111
DEUTSCHE BANK: 454
FANNIE: 441
FREDDIE: 182
HSBC: 175
U.S. BANK: 196
WELLS FARGO: 551
BANKS: 2,502/F & F: 623

·         4 – HILLSBOROUGH COUNTY (pop: 1,229,226)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 220
BANK OF NEW YORK: 116
CHASE: 40
CITIBANK: 30
DEUTSCHE BANK: 152
FANNIE: 265
FREDDIE: 83
HSBC: 84
U.S. BANK: 138
WELLS FARGO: 197
BANKS: 977/F & F: 348

·         5 – ORANGE COUNTY (pop. 1,145,956)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 278
BANK OF NEW YORK: 31
CHASE: 102
CITIBANK: 49
DEUTSCHE BANK: 130
FANNIE: 500
FREDDIE: 126
HSBC: 83
U.S. BANK: 120
WELLS FARGO: 216
BANKS: 1,009/F & F: 626

·         6 – PINELLAS COUNTY (pop. 916,542)
HOMES OWNED BY 8 MAJOR BANKS, FANNIE & FREDDIE

o   BANK OF AMERICA: 166
BANK OF NEW YORK: 99
CHASE: 16
CITIBANK: 28
DEUTSCHE BANK: 113
FANNIE: 47
FREDDIE: 0
HSBC: 40
U.S. BANK: 143
WELLS FARGO: 181
BANKS: 786/F & F: 47

·         Bank of New York, the trustee for hundreds of Countrywide trusts, owned 338 homes.

·         U.S. Bank, the trustee for many Bear Stearns trusts, owned 196 homes

·         HSBC bank, the trustee for almost all of the Deutsche Bank Securities trusts, owned 175 homes.

·         JP Morgan Chase, including the homes owned by Chase Mortgage, and the Chase subsidiaries, Homesales, Inc. and Homesales of Delaware, Inc., owned a relatively low 174 homes.

·         Aurora Loan Services, keeper of most of the Lehman Brothers loans, was in 10th place among the large homeowners, with 149 homes.

·         Citibank, including Citimortgage, was the only other bank owning over 100 homes, with 111 homes.

·         Suntrust owned 82 homes; IndyMac/OneWest owned 54 homes; and GMAC owned 31 homes.

THE HB 213 BILL Pending Below

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© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com

Angela Jo Moore and M. Porter Moore
v.
Mortgage Electronic Registration Systems, Inc., et al.

Civil No. 10-cv-241-JL, Opinion No. 2012 DNH 021.

United States District Court, D. New Hampshire.

January 27, 2012.

MEMORANDUM ORDER

JOSEPH N. LAPLANTE, District Judge.

<EXCERPT>

After hearing oral argument, the court grants the motions in part and denies them in part. As explained in more detail below:

• Count 4, a claim against defendant Ocwen Loan Servicing, LLC under the Real Estate Settlement Procedures Act, is not dismissed. Contrary to Ocwen’s argument, the Moores have sufficiently pleaded that they suffered actual damages—in the form of emotional distress—as a result of its statutory violation.

• Count 5, which makes claims against Ocwen and its co-defendant Harmon Law Offices under the Fair Debt Collection Practices Act, is not dismissed. Though Harmon argues that it was not engaged in “debt collection” subject to that statute, Harmon’s own representations in its letters to the Moores suggest otherwise.

• Count 6, a claim for violations of the New Hampshire Unfair, Deceptive or Unreasonable Collection Practices Act, is dismissed as to Harmon because the Moores have not pleaded facts stating a plausible claim for relief under that statute.

• Count 8, a claim for fraud, is dismissed as to Harmon because the Moores have not pleaded their claim against it with sufficient specificity. Count 8 is also dismissed insofar as it claims fraud in the assignment of the Moores’ mortgage because they did not rely on the alleged fraud. The Moores’ claim for “modification fraud” against Ocwen and its co-defendant Saxon Mortgage Services, Inc., however, is pleaded with the particularity required by Federal Rule of Civil Procedure 9 and may proceed.

• Count 11, a claim for intentional and negligent misrepresentation against all defendants, is dismissed as to Harmon and its co-defendants Mortgage Electronic Registration Systems, Inc., Deutsche Bank National Trust Company, Morgan Stanley ABS Capital I Holding Corp., and Morgan Stanley ABS Capital I Inc. Trust 2007-HE5. The claims against those defendants are not pleaded with the particularity required of fraud claims by Federal Rule of Civil Procedure 9. The Moores’ claim against Saxon and Ocwen for intentional and negligent misrepresentation are, however, sufficiently pleaded and may proceed.

• Finally, Count 17, a claim for “avoidance of note” against “all defendants claiming to own the note and mortgage,” is not dismissed. Though defendants argue that under New Hampshire law, they need not possess the Moores’ promissory note in order to foreclose on the associated mortgage, possession of the note is a necessary prerequisite of a claim to enforce it, which is what the Moores seek to avoid through this count.

C. Foreclosure proceedings and removal

In late January 2010, Ocwen sent the Moores a Reinstatement Quote informing them that the total amount due by April 1, 2010 to reinstate their loan was $79,151.46. Not long thereafter, on February 20, 2010, Harmon sent Mr. and Mrs. Moore each a separate Notice of Mortgage Foreclosure Sale. The Notices informed the Moores that a foreclosure sale of their property would take place on March 18, 2010, on behalf of defendant Deutsche Bank National Trust Company, as Trustee for the registered holders of Morgan Stanley ABS Capital I Inc. Trust 2007-HE5 Mortgage Pass-Through Certificates, Series 2007-HE5. MERS had assigned the Moores’ mortgage to Deutsche Bank on February 18, 2010, in an assignment reciting an effective date of November 16, 2009.^[3]

^[...]

M. Count 17 — Avoidance of note

Finally, Count 17 of the complaint makes a claim for “avoidance of note” against “all defendants claiming to own the note [and] mortgage.” In support of this claim, the Moores allege that the defendants “have been unable or unwilling to provide the Plaintiffs with evidence that they hold the original of the Note or Mortgage,” that “[a]ctual possession of the original of the note is a necessary legal prerequisite to enforcement of the Note,” and that “[i]n the absence of an ability to show that [they possess] the original of the Note” none of the defendants “has a right to enforce the same.” Third Am. Compl. (document no. 47) at ¶¶ 184-86. While New Hampshire courts have not recognized a cause of action for “avoidance of note”^[18] and a federal court sitting in diversity should not “create new doctrines expanding state law,” Bartlett v. Mut. Pharm. Co., Inc., 2010 DNH 164, at 16, the court interprets this cause of action as seeking a declaratory judgment that the defendants may not enforce the note against the Moores.^[19] The only parties that have moved to dismiss this claim (and the only parties who appear to “claim to own the note and mortgage”) are Deutsche Bank and the Morgan Stanley defendants. They argue that under New Hampshire law, they need not possess the Note in order to foreclose on the mortgage.

Even if this argument is correct (and the court need not and does not reach that issue at this time), it is beside the point. On its face, Count 17 does not assert that defendants may not enforce the mortgage by foreclosing, but that they may not enforce the note—e.g., by attempting to collect the amount due under it. Under New Hampshire law, possession of a negotiable instrument such as the note is (with limited exceptions not invoked here) a prerequisite to its enforcement. See N.H. Rev. Stat. Ann. § 382-A:3-301. As the Moores have sufficiently alleged that the defendants do not possess the note, and it is enforcement of the note which the Moores seek to avoid, the motions to dismiss Count 17 are denied.

IV. Conclusion

For the reasons set forth above, WMC’s motion to dismiss^[20] is GRANTED. The remaining defendants’ motions to dismiss^[21] are each GRANTED in part and DENIED in part.  ……..

Accordingly, counts 4 and 6 may proceed against Ocwen; count 5 against Ocwen and Harmon; counts 8 and 11 against Saxon and Ocwen; and count 17 against Deutsche Bank and the Morgan Stanley defendants.

SO ORDERED.

[1] The third amended complaint does not identify this person any more specifically.

[2] A “jumbo loan,” also known as a non-conforming loan, “is a loan that exceeds Fannie Mae’s and Freddie Mac’s loan limits.” U.S. Department of Housing & Urban Development, Glossary, http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/ sfh/buying/glossary (last visited Jan. 23, 2012).

[3] The assignment, which was filed with the Carroll County registry of deeds on February 18, 2010, was signed by Juan Pardo as Vice President of MERS. The Moores allege that Pardo is not an employee of MERS, but of Ocwen, though they do not allege that Pardo lacked authority from MERS to assign the mortgage.

[4] The complaint alleges that on the date of the scheduled sale, an auctioneer arrived at the Moores’ property and informed them that the foreclosure sale had been rescheduled for April 20, 2010. But no foreclosure sale has actually taken place, and the Moores confirmed at oral argument that they continue to occupy the property.

[5] These claims include agency/respondeat superior (Count 1), breach of the implied covenant of good faith and fair dealing (Count 7), origination fraud (Count 8), negligence (Count 10), intentional and negligent misrepresentation (Count 11), breach of assumed duty (Count 12), breach of fiduciary duty (Count 13), civil conspiracy (Count 14), and negligent and intentional infliction of emotional distress (Count 15).

[6] TILA also contains a three-year statute of limitations for a claim seeking rescission of the loan. 15 U.S.C. § 1635(f). Here, the only relief the Moores seek for the alleged TILA violations in Counts 2 and 3 are damages and attorneys’ fees and costs, see Third Am. Compl. (document no. 47) at 20, ¶ 86, so the limitations period for rescission claims is not at issue.

[7] This view is extremely charitable to the Moores, given the court of appeals’ holding in Salois. There, the court held that because the loan documents contained all the information necessary for the plaintiffs to discover that they had been misled about the terms of their loan, and because “one who signs a writing that is designed to serve as a legal document is presumed to know its contents,” the “plaintiffs were on notice of their claims when they signed their loan documents.” 128 F.3d at 26 & n.10. In evaluating the Moores’ claims, this court has assumed, dubitante, that the loan documents themselves did not place the Moores on notice of their claims.

[8] Although this allegation appears in a separate count of the complaint, because the Moores are pro se the court reads their complaint “with an extra degree of solicitude.” Hecking v. Barger, 2010 DNH 032, at 4. The allegation specifically ties the Moores’ emotional distress to Ocwen’s alleged conduct—which includes its failure to respond to their letters—and to ignore it simply because it does not appear in the RESPA count itself would elevate form over substance. Indeed, in their objections to the motions to dismiss the Moores maintain that their emotional distress stemmed in part from Ocwen’s RESPA violations. See, e.g., Pls.’ Objection to Morgan Stanley Mot. to Dismiss (document no. 72) at 7-8, ¶ 24.

[9] The court may consider this letter, which is expressly referenced in the complaint and forms part of the basis for the Moores’ claims, without converting the motion to dismiss into a motion for summary judgment. Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008).

[10] Given the dearth of case law on the UDUCPA, these FDCPA cases are also useful in interpreting the UDUCPA “because [the FDCPA] contains provisions similar to the [UDUCPA].” Gilroy, 632 F. Supp. 2d at 136.

[11] There is some support for Harmon’s position, see, e.g., Beadle, 2005 DNH 016, at 7-12 (McAuliffe, J.) (concluding that attorneys who conducted foreclosure proceedings were not subject to FDCPA); see also Speleos v. BAC Home Loans Servicing, LP, No. 10-cv-11503-NMG, 2011 WL 4899982, *5-6 (D. Mass. Oct. 14, 2011) (same), but the case law is not uniform on this point. One court of appeals has held that the FDCPA may apply to efforts to recoup a debt through foreclosure, expressing concern that to hold otherwise “would create an enormous loophole in the Act immunizing any debt from coverage if that debt happened to be secured by a real property interest and foreclosure proceedings were used to collect the debt.” Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir. 2006); cf. also Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 235 (3d Cir. 2005) (“[T]he text of the FDCPA evidences a Congressional intent to extend the protection of the Act to consumer defendants in suits brought to enforce liens.”).

[12] Deutsche Bank and one of the Morgan Stanley defendants, Morgan Stanley ABS Capital I Holding Corp., also argue that the Moores did not allege a contract with either of them. The complaint alleges, however, that at various relevant times both defendants owned or purported to own the Moores’ mortgage.

[13] Again, because the SPAs are expressly referenced in the complaint and form part of the basis for the Moores’ claims, the court may consider them in ruling on this motion to dismiss. See supra n.6. Both SPAs are also posted for public review at the Treasury Department’s website: Saxon’s SPA is available at http://tinyurl.com/SaxonSPA (last visited Jan. 23, 2012); Ocwen’s at http://tinyurl.com/OcwenSPA (last visited Jan. 23, 2012).

[14] In so holding, the court joins the overwhelming majority of courts to have considered whether borrowers are the intended third-party beneficiaries of SPAs. See Alpino, 2011 WL 1564114 at *3; Speleos, 755 F. Supp. 2d at 308.

[15] The apparent absurdity of the Moores’ attempt to sue MERS for an allegedly fraudulent transfer of its own interest in the mortgage has not escaped the court’s attention. The parties did not address this issue in their memoranda, though, so the court does not address it here.

[16] Claims for negligence—like claims for breach of an assumed duty or a fiduciary duty—”rest primarily upon a violation of some duty owed by the offender to the injured party.” Ahrendt v. Granite Bank, 144 N.H. 308, 314 (1999).

[17] It is worth noting here that New Hampshire does not permit an action for negligence to be premised upon the violation of a duty imposed by statute unless a similar duty existed at common law. Stillwater Condo. Ass’n v. Town of Salem, 140 N.H. 505, 507 (1995). The Moores have not argued that their negligence claims are premised on alleged RESPA, FDCPA, or UDUCPA violations, so the court need not address whether the duties imposed by those statutes existed at common law so as to permit a negligence claim against any of the defendants.

[18] In the only publicly available opinions that so much as mention this cause of action—in New Hampshire or elsewhere—the courts never reached the question of whether such a cause of action exists because the plaintiff conceded that his claim for avoidance of the note could not survive the defendants’ motion to dismiss. See Dillon v. Select Portfolio Servicing, 630 F.3d 75, 83 (1st Cir. 2011); Dillon v. Select Portfolio Servicing, 2008 DNH 019, at 20. The court observes that in typical legal usage, “avoidance” refers to the power of a bankruptcy trustee under the Bankruptcy Code to undo “some prebankruptcy transfers of the debtor’s property and most postbankruptcy transfers of estate property.” 1 David G. Epstein et al., Bankruptcy § 6-1, at 498 (1992).

[19] The court here reads the Moores’ complaint with an extra degree of solicitude. See supra n.8.

[20] Document no. 80.

[21] Documents nos. 52, 53, 54, 60, 70, and 71.

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© 2010-12 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.
www.StopForeclosureFraud.com