Self-help author Liz Coursen was not looking to set a precedent when she decided to go after the big Wall Street investment bank that foreclosed on her Sarasota home. She just wanted her house back.
But JPMorgan Chase and Washington Mutual have tried to quash her federal racketeering lawsuit twice, so far without success, putting the Sarasota resident in the unlikely position of potential giant killer. If the suit proceeds and Coursen prevails, her case might serve as a legal roadmap for other borrowers.
Rep. Brad Miller, a North Carolina Democrat, told The Huffington Post that the report, which has not been released, was “critical” and that the Office of the Comptroller of the Currency, which administers the review, was aware of its findings. Miller said that that one problem the GAO was likely to highlight was an “unacceptably high” error rate of 11 percent in a sampling of bank loan files.
HuffPO-
The surprising decision by regulators to scrap a massive and expensive foreclosure review program in favor of a $10 billion settlement with 14 banks — reported by The New York Times Sunday night — came after a year of mounting concerns about the independence and effectiveness of the controversial program.
The program, known as the Independent Foreclosure Review, was supposed to give homeowners who believe that their bank made a mistake in handling their foreclosure an opportunity for a neutral third party to review the claim. It’s not clear what factors led banking regulators to abandon the program in favor of a settlement, but the final straw may have been a pending report by the Government Accountability Office, a nonpartisan investigative arm of Congress, which was investigating the review program.
PROVIDENCE, R.I. — The Rhode Island Supreme Court is scheduled to hear oral arguments Feb. 7 in the case of a Cranston couple who have challenged the right of an electronic mortgage registry to foreclose on their home.
by Paul Kiel
ProPublica, Dec. 31, 2012, 10:33 a.m.
As the sixth year of the foreclosure crisis comes to an end, the percentage of loans in foreclosure remains a staggering eight times higher than it was in 2005. About 5.3 million homeowners u2014 about 11 percent of all borrowers u2014 are behind on their payments.
But 2012 was also the year that home prices hit a bottom and have started to very slowly climb. The number of new homeowners falling behind on their payments has dropped substantially since the peak. The government also took a dramatic step: a $25 billion settlement with the five biggest mortgage servicers.
Earlier this year, ProPublica focused on one homeowner u2014 Sheila Ramos, who lost her home in Florida and ended up living in a tent in Hawaii u2014 to pull together all the threads of the crisis and give readers a single story that explains the causes of the crisis, the bumbling response by the big banks and Washington, and the human toll exacted by the whole debacle. It is also available as a Kindle Single, which includes extra material.
We’ve also been keeping a close watch on whether the government is keeping its promises about compensating victims of the crisis.
The largest program is a review overseen by federal regulators covering more than 4 million loans. It launched back in 2011, but as of mid-December, no homeowner had received any compensation. Office of the Comptroller of the Currency spokesman Bryan Hubbard said regulators had been “working toward beginning compensation for a limited number of people [this month] with reviews and remediation continuing through 2013.”
The program u2014 called the Independent Foreclosure Review u2014 has been beset with questions about its fairness, transparency and integrity since it launched. At least partly due to those problems, many borrowers aren’t even bothering to apply for compensation. As of November, only 315,000 borrowers have sent in forms requesting to be reviewed, according to the OCC’s Hubbard, about seven percent of people eligible to apply. The final deadline to apply is at the end of this month.
Federal regulators designed the program to work like this: Each of the banks would hire an “independent consultant” (approved by the regulator) to conduct reviews of the bank’s foreclosure cases. The bank was supposed to foot the bill, but the consultant, not the bank, was supposed to decide which of the bank’s customers deserved compensation and how much.
But ProPublica has revealed evidence that the banks themselves are heavily involved in the reviews, calling their independence and integrity into question. After our story about Bank of America’s involvement in its review, the bank and its consultant changed their review process. Bank of America also engineered a de facto appeals process; if the consultant decided a BofA customer deserved compensation, the bank could provide more information that it wasn’t at fault. Borrowers have no such ability to appeal.
To lead its role in the review, JPMorgan Chase installed an executive named by the Justice Department for allegedly facilitating a scheme to defraud Fannie Mae and Freddie Mac. She declined to comment for our story.
Finally, some banks have been shockingly slow to begin their reviews. Regulators have ordered Goldman Sachs and Morgan Stanley to conduct reviews of their former mortgage servicing subsidiaries, for instance, but they still haven’t begun. The process covers loans that were in foreclosure in 2009 or 2010, but the review won’t get going until at least 2013. That seems likely to further deter harmed borrowers from applying for compensation.
A Federal Reserve spokesperson said a company, Navigant Consulting, had been selected to conduct the review for both servicers, but the contracts had not been finalized. It’s unclear when the review would begin.
The government’s other big reaction to the foreclosure crisis, the National Mortgage Settlement, has also had its disappointments. The deal involved 49 states, the federal government, and the five largest mortgage servicers. The headline number was $25 billion, but only $5 billion of that is actually cash that the big banks would pay out. The other $20 billion is composed of “credits,” awarded when the banks take steps to avoid foreclosures, for instance by offering loan modifications that cut the amount homeowners owe.
Of the cash, half u2014 $2.5 billion u2014 was to go to states to address the foreclosure crisis. But as we’ve reported, almost $1 billion of that is actually being used to patch state’s ailing budgets. (See our state-by-state breakdown here.)
$1.5 billion will be sent to borrowers who lost their homes to foreclosure, with each borrower receiving only about $1,000-$2,000. That process has finally gotten underway, and the deadline for borrowers to make a claim to receive that payment is early next year. (See more info about this in our FAQ.)
As for the $20 billion in credits, the banks appear to be in the process of fulfilling those obligations, but there are plenty of questions about how much good it’s doing. Some credits are for actions banks were taking already (like demolishing abandoned homes). And although government officials touted the agreement as a way to boost the number of modifications that reduced borrowers’ debts, much of the banks’ activity hasn’t focused on keeping borrowers in their homes. Rather, the number of short sales u2014 an agreement by the bank to sell the home for less than the amount owed u2014 has been far higher.
As the foreclosure crisis and the government’s sputtering response enter their seventh year, ProPublica will be keeping watch.
Mortgage servicer Ocwen Financial Corp. ($33.63 0%) has finalized its acquisition of Homeward Residential Holdings Inc., a company organized by private equity firm WL Ross & Co. in 2007.
In a securities filing, Ocwen said it paid $243 million plus the book value amount of Homeward and its subsidiaries, making the aggregate purchase amount reach $766 million. About $604 million was paid in cash, Ocwen said in a securities filing. Another $162 million was paid in preferred stock.
“Viewpoint” host Eliot Spitzer reviews the year in Wall Street headlines and looks ahead to 2013 in this Web exclusive video. Spitzer argues that “it has not been a great year for Wall Street,” citing the Libor scandal, JPMorgan’s “London whale” and various insider trading allegations. But the big banks may not be “too big to indict” much longer.
“I think the Justice Department finally has awakened to the reality that simple money damages and money penalties aren’t enough. And there are going to a lot more criminal cases brought against institutions. And that will shake up the inner sanctum of senior management as they come to grips with the reality of the obligation to plead guilty — not individually, perhaps, but at a corporate level,” Spitzer says.
I suppose shutting them down for fraud is too much to ask for since all the banks seems to be good at ponzi schemes?
NYT-
Banking regulators are close to a $10 billion settlement with 14 banks that would end the government’s efforts to hold lenders responsible for foreclosure abuses like faulty paperwork and excessive fees that may have led to evictions, according to people with knowledge of the discussions.
Under the settlement, a significant amount of the money, $3.75 billion, would go to people who have already lost their homes, making it potentially more generous to former homeowners than a broad-reaching pact in February between state attorneys general and five large banks. That set aside $1.5 billion in cash relief for Americans.
EUIHYUNG KIM and IN SOOK KIM, Plaintiffs-Appellees,
v
JPMORGAN CHASE BANK, N.A., Defendant-Appellant.
BEFORE THE ENTIRE BENCH MARILYN KELLY, J.
At issue in this case is the manner in which defendant JPMorgan Chase Bank, N.A. (Chase), the successor in interest to Washington Mutual Bank (WaMu), acquired plaintiffs’ mortgage. Plaintiffs’ mortgage was among the assets held by WaMu when it collapsed in 2008 in the largest bank failure in American history.1 Specifically, we must determine whether defendant acquired plaintiffs’ mortgage by “operation of law” and, if so, whether MCL 600.3204(3), which sets forth requirements for foreclosing byadvertisement, applies to the acquisition of a mortgage by operation of law. We asked the parties to address whether, if the foreclosure proceedings that defendant initiated were flawed, the subsequent foreclosure is void ab initio or merely voidable.2 We hold that defendant did not acquire plaintiffs’ mortgage by operation of law. Rather, defendant acquired that mortgage through a voluntary purchase agreement. Accordingly, defendant was required to comply with the provisions of MCL 600.3204.We further hold, differently than did the Court of Appeals, that the foreclosure sale in this case was voidable rather than void ab initio. Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
The state-backed bank has already warned traders that bonuses are likely to be slashed far more deeply than planned this year to pay the fine. Clawbacks have also been threatened if it is found that former awards were made out of inflated profits.
Banks have been instructed by regulators to rein in bonuses this year to build up a cushion of capital to cover potential fines and compensation for past malpractices. Barclays is also believed to be looking at clawbacks.
If you know eviction is imminent, do the right thing and find your pet a safe loving home.
Please Don’t Leave Them Behind!
Sun-Sentinel-
Like many other South Floridians, Madeleine J. Calder was crushed when she lost her 5-acre ranch in Palm Beach County to foreclosure. But she hadn’t counted on also losing her most prized possessions: six ostriches, named Rhett Butler, Miss Scarlett, Bob, Gallagher Bird, Ken Doll and Little Bit.
Calder last saw the small herd of ostriches featured in national and local stories on ostrich breeding when she moved out of her Blue Heaven Ostrich Ranch in Loxahatchee. She left the ostriches, some of which she had nurtured for 21 years, with plans to find a new place for them to stay.
But before she could claim them, Calder says, they disappeared — and no one will tell her where they are.
She’s been fighting to get them back ever since filing several lawsuits, the latest in September. “We’ve been together through everything, those birds and me,” Calder said.
Those who lost their homes due to foreclosure may now be able to get a financial credit as part of the government’s Independent Foreclosure Review program. But, as Bill Whitaker reports, some pundits have been skeptical of the program.
IN THE COUNTY OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, FLORIDA
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-OA3 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OA3,
Another day, another corporate titan suffering from devastating amnesia. This time, the memory-loss patient is none other than Angelo Mozilo, the former CEO of Countrywide Financial.
Deposed in the landmark lawsuit between the monoline insurer MBIA and Countrywide/Bank of America, Mozilo professed not to know the difference between “verified” income and “stated” income. He also made some incredible remarks regarding his notorious “Friends of Angelo” lending program, in which, among others, political figures like North Dakota Senator Kent Conrad and Connecticut Senator Chris Dodd received Countrywide mortgages on highly advantageous terms just because they were tight with the CEO.
As chief of Countrywide, Mozilo headed the single most corrupt subprime mortgage lender in America during the period preceding the crisis. Charged with mass fraud and headed for trial in October of 2010, Mozilo and the SEC ultimately settled four days before opening arguments were set to begin in Los Angeles. Ultimately, Mozilo got away with no jail time, paying a $67.5 million settlement, $20 million of which was covered by Countrywide, which by then had been acquired by Bank of America, a major bailout recipient. Just in the years between 2000 and 2008, Mozilo made over half a billion dollars – $521.5 million, according to one corporate research firm.
Evelyn L. Jackson a/k/a EVELYN L. JACKSON BROOKS, et al.
8473/2011
For the Plaintiff: Stein, Wiener & Roth, LLP, by Gerald Roth and Robert Sambursky, Esqs., One Old Country Road, suite 113, Carle Place, New York 11514
Guardian Ad Litem: Christina Cline, Esq., 224 Nassau Boulevard South, Garden City South, New York 11530
Charles J. Markey, J.
Papers Numbered and Read:
Report of the Guardian Ad Litem Christina Cline, Esq………………………………………………1
Affirmation of Services by Christina Cline, Esq., dated December 9, 2012…………………..2
The Court’s prior order dated October 26, 2012, and entered on November 19, 2012…….3
CHARLES J. MARKEY, J.
In a sua sponte decision by the undersigned, dated October 26, 2012, and entered on November 19, 2012, the Court observed that the plaintiff financial institution submitted a proposed order for this Court’s consideration to name a referee to compute sums allegedly due to the plaintiff in this mortgage foreclosure case.
In that decision, and based on a review of the plaintiff financial institution’s papers, the undersigned already had grave concerns on the legitimacy of the service of process and the mental condition of the homeowner who was confined to a nursing home. In that order, this Court decided to appoint Christina Cline, Esq., a distinguished lawyer with an expertise in elderly law to act as the guardian ad litem for defendant Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks. The Court asked Ms. Cline to make an extensive investigation and submit proposed findings, recommendations, and conclusions. Finally, the Court set Ms. Cline’s fee at $275.00 fee per hour, plus expenses, and such fees and expenses shall be paid to her by the plaintiff. The hourly fee is modest when Ms. Cline’s professional credentials and significant experience are taken into consideration. [*2]
Ms. Cline, taking her fiduciary appointment with admirable seriousness of purpose, set forth on her appointed task immediately, overcoming considerable time constraints and permitted the appointment to override her other pressing matters. The Court is impressed with the extensive report submitted by Ms. Cline, her investigation and recommendations. The Court adopts Ms. Cline’s report in all respects, without exception, as though it were made by the undersigned. The Court ratifies and adopts all of the findings and conclusions contained therein. In brief, the results of Ms. Cline’s investigation confirmed all of the undersigned’s worst fears and suspicions when the Court issued its order in October.
The case law is already expansive on the rampant abuses in the mortgage foreclosure field. Documentary filmmaker Joel Sucher, in a series of articles for American Banker, Huffington Post, and in several other blogs available on the internet, has been an eloquent champion against the bullying, corrosive, and abusive tactics used by “servicers” of mortgages in debt. In one article dated March 26, 2012, for American Banker, entitled “Behind Every ‘Distressed Asset’ Is a Distressed Human Being,” Joel Sucher, whose forthcoming film is entitled ” Foreclosure Diaries,” concerning the current financial crisis, states:
“I’m intrigued by the Orwellian phraseology that megabanking executives and the mortgage industry have coined to describe their work. They trade, for instance, in ‘distressed assets.’
“What’s a distressed asset? From what I understand, an asset, like a subprime mortgage, is distressed because it fails to churn out the revenue stream it was originally supposed to produce. But post-crash, with a nod to obfuscation, ‘distressed assets’ have become ‘legacy assets.’
“It doesn’t take [contemporary Italian essayist and philosopher] Umberto Eco to figure out the real meaning of these dehumanizing terms: for the millions of people whose assets – – their homes – – are underwater, it’s their lives that have become truly distressed.”
The Court will quote extensively from the report of Christina Cline, Esq., because the abuses that occurred in the case at bar would have overwhelmed a powerless individual such as defendant Evelyn Jackson, had the undersigned’s earlier apprehensions not been aroused leading to the appointment of Ms. Cline. Ms. Cline’s report to the Court, in pertinent part, states:
INTEREST OF MY WARD
2. My ward owns one half share of the property which is the subject of this foreclosure action. There is nothing in the court file that indicates that my ward is the sole owner. A view of the ACRIS records does not reveal how the property is held.
BACKGROUND
3. This action is one of FORECLOSURE upon a reverse mortgage. The defendant, [*3]EVELYN L. JACKSON, a/k/a EVELYN L. JACKSON BROOKS, and Harding Brooks allegedly signed a mortgage agreement with FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of Lehman Brothers Bank, FSB on May 21, 2004.
4.The mortgage allowed for an indebtedness of $475,000.00 with interest. At the closing the following payments were made: $215,745.00, Initial Payment of the loan which consisted of: $16,668.00, closing costs; $142.150.86, payment of liens; $53,285.71, loan advance; $3,640.43. At the time the action was commenced there was a balance due to Plaintiff in the amount of $217,225.40.
5. On February 21, 2010, Harding Brooks died.
6.On March 9, 2011, FINANCIAL FREEDOM SENIOR FUNDING CORPORATION, a subsidiary of LEHMAN BROTHERS BANK, FSB assigned the mortgage to Plaintiff, FINANCIAL FREEDOM ACQUISITION.
DEFAULT on the MORTGAGE
7.On October 13, 2010 the assignee of the Mortgage, Financial Freedom Acquisition, L. L.C. sent a letter entitled “Home Equity Conversion Mortgage Repayment Notice” addressed to Evelyn L. Jackson-Brooks at 109-14 177th St. Jamaica, New York 11433. In part the letter states “Upon the occurrence of a maturity event, including the borrower’s decision to permanently leave and no longer occupy the subject property as a primary residence, the loan becomes due and payable.” It continues in the second paragraph, with information and assistance to which the borrower is entitled. Defendant, EVELYN L. JACKSON defaulted on the mortgage.
8. A Lis Pendens was filed in April 2011.
9. Plaintiff filed a summons and complaint in Queens Supreme Court.
10.Defendant did not appear in the action nor did she submit an answer in the action.
11. Plaintiff submitted a motion for an Order of Reference upon which the Court issued an Order appointing your affiant in connection with the motion.
INVESTIGATION
12.My ward, EVELYN L. JACKSON, the defendant in this action, currently resides at the Hollis Manor Nursing Home located at 191-06 Hillside Ave. Hollis, NY 11432, having been placed in the facility on May12, 2010, by her son, Will Jackson. Her admitting diagnosis in 2010 was Alzheimer’s disease, macular degeneration, seizure disorder, and hypertension. [*4]
13. Prior to being placed in Hollis Park Nursing Home by her son, Ms. Jackson resided at her home located at 109-14 177th Street, Jamaica, New York 11433 the premises of this action.
JURISDICTION
14. The Affidavit of Service submitted by plaintiff in support of personal jurisdiction over defendant, Evelyn L. Jackson, a/k/a Evelyn L. Jackson Brooks states the following:
a. that on 4/12/11 at the Hillside Manor Nursing Home located at 191-06 Hillside Ave, Hollis, NY 11432 Andrew Ceponis served the summons and complaint bearing Index No. 8473-11 & filing date 04/06/11upon individual Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks defendant therein by delivering thereat a true copy of each to said defendant personally; deponent knew said person so served to be the person described as said defendant therein named. She identified herself as such.
b. The description of Evelyn L. Jackson is given as a female, black, grey hair of 85 years of age only 5ft. 3in. weighing 105lbs.
15. On December 4, 2012 I visited the defendant Evelyn L. Jackson at the Hollis Park Nursing Home – – NOT the Hillside Manor Nursing Home, as indicated in the Affidavit of Service – – where Ms. Jackson has been since May 12, 2010. I found Ms. Jackson a pleasant elderly woman. I inquired of her regarding the service of the summons and complaint, the notice of default, the judgment, and of the underlying mortgage on her house she has absolutely no recollection of anything about this action. I inquired of her as to her family members and the information she provided me is completely inaccurate and different from that supplied to me by the nursing home staff. I inquired of SHARON SELBERG, who functions as both receptionist and director of social activities, whether she was present when EVELYN L. JACKSON was allegedly served with the Summons and Complaint, and she informed me that she had no recollection of any such event.
16. I inquired of Dr. Riki Koenigsberg, the resident Psychologist who advised me that EVELYN L. JACKSON suffers from Alzheimer’s disease, dementia, and macular degeneration. When I inquired whether Ms. Jackson would be able to understand the documents even if one assumed that she was in fact served with any of them. I was informed by Dr. Koenigsberg that Ms. Jackson’s eyesight is so poor that she can not even see her food never mind read legal documents. I asked if her eyesight had been poor in July 2011 and was informed that it had been just as poor at that time and in fact that it had been poor in May12, 2010 upon her admission to Hollis Park Nursing Home.
17. Dr. Koenigsberg also informed me that even if she had been able to see the papers she would have had no concept of the importance of the documents as her Alzheimer’s disease and dementia had progressed to the point that she could neither understand not conceptualize the [*5]importance of a summons, complaint or a notice of default.
18. The Affidavit of Service submitted by plaintiff in support of personal jurisdiction over defendant, Evelyn L. Jackson, a/k/a Evelyn L. Jackson Brooks states the following:
a. that on 4/12/11 at the Hillside Manor Nursing Home located at 191-06 Hillside Ave, Hollis, NY 11432 Andrew Ceponis served the summons and complaint bearing Index # 8473-11 & filing date 04/06/11-upon individual Evelyn L. Jackson a/k/a Evelyn L. Jackson Brooks B/S/U Nathan Heilweil as Administrator of the Hillside Manor Nursing Home 3 story brick defendant therein named by delivering thereat a true copy of each to said defendant personally; deponent knew said person so served to be the person described as said defendant therein. (S)he identified (her) himself as such.
b. The description of NATHAN HEILWEIL is given as a male, white, brown hair of 54 years of age, height-6′ 1″ weighing 210lbs.
19. On November 12, 2012 I spoke to NATHAN HEILWEIL who informed me that he had no recollection of ever being served in this matter and referred me to the Edith Gonzalez in the Comptroller’s office to review the records contained in Ms. Jackson’s file. “Edith Gonzalez” indicated that Ms. Jackson’s file contained a large manilla envelope with a date stamp of August 22, 2012. The envelope contained a notice of default dated 7/27/12. Ms. Gonzalez indicated that the envelope had been delivered to the Nursing Home and forwarded to her office and that it had been retained by her in the Controller’s office. There is nothing in the nursing home file that indicates that Ms. Jackson ever received the Summons and Complaint or the Notice of Default, or a copy of any Judgment entered against her.
20. While there, I inquired of Mr. Heilweil and he informed me that he is 62 years of age 5’9″ tall weighing 190-200 lbs and has grey hair.
NOTICE OF DEFAULT IN THE ACTION
21. Upon visiting the Hollis Park Nursing Home, I was informed that they had an envelope in Ms. Jackson’s file, but that Ms Jackson never received it.
APPLICABLE LAW: APPOINTMENT OF AGUARDIAN AD LITEM
22. Mrs. Jackson is an incapacitated person. Even though she had not been judicially declared incapacitated, in an Article 81 proceeding the Court still has certain obligations with respect to the proceeding in which a party is incapacitated.
23. CPLR 1201 states that “a person shall appear by his guardian ad litem . . . if he is an [*6]adult incapable of adequately prosecuting or defending his rights.” (CPLR 1201).
24. The appointment by a guardian ad litem for an adult incapable ofadequately prosecuting or defending his rights” is made by the courtin accordance with CPLR 1202 . . . .
* * ** * * ** *
25. CPLR 1203 states that, “. . . No default judgment may be enteredagainst an adult incapable of adequately protecting his rights forwhom a guardian ad litem has been appointed unless twenty dayshave expired since the appointment.” (Emphasis added.)
26. While the statutes are vague if not silent with regard to aplaintiff’s obligation when dealing with an incapacitated defendant,case law is replete with the court’s interpretation that Article 12places an obligation upon a party to advise the court of the possibilitythat another party may suffer an incapacity or that he or she is aperson “incapable of adequately prosecuting or defending hisrights.”(CPLR 1201)
* * ** * * ** *
The papers submitted in support of the application present a strongevidentiary showing that at the time the action was commenced and atthe time the default judgment was entered, the decedent Defendant,Evelyn L. Jackson, although not judicially declared an incompetent,was “an adult incapable of adequately prosecuting or defending herrights” (CPLR 1201). As such, she should have been represented inthe action by a guardian ad litem. In fact “it is questionable whether any appearance by the defendant . . . either pro se or by an attorney, without the appointment of a guardian ad litem, would have been authorized.” (Rand v Lockwood, 65 Misc 2d 182 [Sup Ct Nassau County 1970]). A person specified in CPLR 1201 may only appear by a guardian ad litem.
* * ** * * ** *
CONCLUSIONS
31. From the examination and analysis of the entire file herein, the “Home Equity Conversion Mortgage Repayment Notice,” the Summons and Complaint, the affidavit of services, the Notice of Default, and the affidavit of service: the files held by Hollis Nursing Home; the conversations with Nathaniel Heilwell, “EDITH GONZALEZ”, the comptroller and other members of the nursing home staff, and my own investigation, my conclusions in this matter are as follows:
The Notice of Default in the Mortgage was improperly served upon defendant, Evelyn L. [*7]Jackson at 109-14 177th Street, Jamaica, New York 11433. In light of the fact that defendant’s absence from the premises forms the basis of the default sending the Mortgage Repayment Notice denied the defendant of her right to notice and the opportunity to timely repay the balance amount and HUD services prior to the Foreclosure proceeding. As plaintiff had actual knowledge (plaintiff’s action is based upon the fact that defendant was not living at the premises) of this condition precedent to the commencement of the action, the action must be dismissed.
32. As to the affidavits of service I find the following irregularities:
A.Service upon Evelyn L. Jackson
1. disparities in location of service— affidavit of service states that defendant, Jackson was served at Hillside Manor Nursing Home— while she is a resident of Hollis Park Manor Nursing Home. The Name is clearly displayed in the front of the building and it would seem difficult to mistake the name if the process server had been there.
2. disparities in description of individual served— affidavit of service describes defendant Jackson as a black female with grey hair being 85 years of age, 5’1″ and 105 lbs. Ms. Jackson is 92 years of age.
B. Service upon Evelyn L. Jackson B/S/U NATHAN HEILWEIL as Administrator of the Hillside Manor Nursing Home.
1. disparities in person served—Mr Heilweil is the Administrator of the Hollis Park Manor Nursing Home.
2. disparities in description of person served— The Affidavit of Service contains a description of NATHAN HEILWEIL as a male, white, brown hair of 54 years of age, height-6′ 1″ weighing 210lbs. In fact, Mr. Heilweil is 62 years of age 5’9″ tall weighing 190-200 lbs and has grey hair.
33. While counsel alleges in paragraph 13 of the affirmation in support of the instant motion that a notice pursuant to RPAPL 1303 was served with the Summons and Complaint no mention of that notice is indicated in the affidavit of service of the summons and complaint, nor is there any separate affidavit in the court file or in the Motion for an Order of Reference.
34. The Notice of the Default in the Action was served again at Hillside Manor Nursing Home.
35. The Motion for an Order of Reference was served again at Hillside Manor Nursing Home.
36. There is no indication of service of the notice of 3215(g)(3)(I) 20 day notice before [*8]the entry of judgment.
37. Paragraph 24 of the affirmation of counsel states that all of the defendants herein are of full age and none of said defendants is an incompetent or absentee. Clearly defendant is incapacitated.
38. The estate of Harding Brooks was not served and there is nothing to indicate that there are no heirs at law of Harding Brooks who would be entitled to notice especially as there is nothing to indicate that the property was held by Harding Brooks and Evelyn L Jackson a/k/a Evelyn L Jackson-Brooks as tenants by the entirety giving her rights to the entire property upon Harding Brooks’ death.
39. Thus, I conclude:
(1) the condition precedent to the commencement of the action has not been properly completed,
(2) that jurisdiction of this Court over EVELYN L. JACKSON has not been properly obtained in that she was not properly served and
(3) that there is no indication that the notice pursuant to RPAPL 1303 was served upon defendant Jackson,
(4) that the Notice that the action should not have proceeded without the appointment of a Guardian ad Litem for Ms Jackson in accordance with CPLR 1201. The action must be dismissed or in the alternative that defendant should be returned to her position upon the service of the “Home Equity Conversion Mortgage Repayment Notice” as the court did in Oneida Nat. Bank & Tr. Co. v Unczur, 37 AD2d 480, 483 [4th Dept. 1971].
In light of the irregularities and the failure of plaintiff to comply with the applicable law and statutes, it should be responsible for any and all additional costs, interests, incurred as a result of the delay in the proceeding.
The Court adopts each and every one of the findings, recommendations, and conclusions quoted above by Ms. Cline. The Court finds that defendant Jackson had no mental competency so as to understand what papers she was receiving, assuming arguendo that papers had indeed been served on her. Second, aside from Ms. Jackson’s dementia and lack of mental competency, the Court finds that the nursing home’s administrator was not properly served as contended by the plaintiff.
The Court, finally, thanks Ms. Cline for the great amount of time, effort, and energy spent [*9]in preparing a comprehensive report.
The Court, entirely agreeing with Ms. Cline’s report, dismisses the complaint for the improper service of process, as set forth above. The Clerk is thus directed to dismiss the action.
Concerning the appropriate fee, Ms. Cline’s accompanying affirmation of services indicates that she has worked 18.2 hours on the report. The Court previously awarded her a fee of $275.00 per hour. Accordingly, the Court awards Ms. Cline the sum of $5,005.00 for her fees. The Court further awards Ms. Cline the sum of $575.00 for expenses.
In sum, the plaintiff shall pay Ms. Cline the sum of $5,580.00 within 20 days of the service upon it by Ms. Cline of a copy of this order bearing the County Clerk’s dated stamp of entry. If such sum is not paid by the plaintiff timely, the Court shall convene a hearing and entertain an application by Ms. Cline for higher fees based upon a re-evaluation of whether Ms. Cline’s services should have been compensated at the rate of $550.00 per hour.
The complaint is dismissed for improper service of process, and the action is dismissed.
The foregoing constitutes the decision, opinion, order, and Judgment of the Court.
A Sarasota circuit court judge found one of the largest banks in the country in contempt of court on Friday over a foreclosure case that has dragged through the system for several years.
Attorneys for Dimitri Jansen, a local schoolteacher whose former home in North Port is in foreclosure, said such an order, against Minneapolis-based U.S. Bank, was “unprecedented.”
Jansen says his mother’s name was mistakenly added to the mortgage he obtained in 2006, that the bank has ignored requests to remove her name from the foreclosure documents and thus wrecked her credit history, and that the bank held up a pending short sale.
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2012
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
JP MORGAN CHASE BANK, N.A., Appellant,
v. Case No. 5D12-208
WELLS FARGO BANK, N.A., ETC., Appellee. ________________________________/
Opinion filed December 28, 2012
Non-Final Appeal from the Circuit Court for Volusia County,
Robert K. Rouse, Jr., Judge.
Dennis M. Campbell and Tania M. Varela, of Campbell Law Firm, PLLC, Coral Gables, for Appellant.
Enrico G. Gonzalez, Temple Terrace, for Appellee.
PER CURIAM.
JP Morgan Chase Bank, N.A. (hereafter Chase) appeals the Order Denying Chase Home Finance, LLC’s Motion to Vacate Default Final Judgment entered in a foreclosure suit filed by Wells Fargo Bank, N.A. (hereinafter Wells Fargo).1 Chase argues that the trial court abused its discretion in denying Chase’s motion to vacate because Wells Fargo knew, based on an amended complaint filed by Chase in a parallel foreclosure action involving the same property that named Wells Fargo as a defendant and alleged that Chase’s mortgage had priority over all other mortgages, that Chase intended to defend the Wells Fargo action.2 Chase further argues that the attorney for Wells Fargo knew of Chase’s intent to defend before he sought and obtained the ex-parte default against Chase.
We agree with Chase that, based on the allegations in Chase’s amended complaint, Wells Fargo knew of Chase’s intent to defend the suit filed by Wells Fargo and that the subsequently entered default judgment, which was entered without notice to Chase, is void. See Makes & Models Magazine, Inc. v. Web Offset Printing Co., Inc., 13 So. 3d 178 (Fla. 2d DCA 2009); U.S. Bank Nat’l Ass’n v. Lloyd, 981 So. 2d 633 (Fla. 2d DCA 2008). Accordingly, we reverse the order under review and remand for further proceedings.
REVERSED and REMANDED.
SAWAYA, LAWSON and BERGER, JJ., concur.
Footnotes 1 Chase is the successor, by merger, to Chase Home Finance, LLC.
2This court has jurisdiction over this non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(5) (“Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule.”).
Watch the behind the scenes of corruption in the making and how the game is rigged in Washington. Although this is only a movie, it isn’t very far from the truth.
Just when you thought the seemingly endless rabbit hole of Wall Street-Washington corruption, cronyism, co-option, crime and kickbacks may have finally come to an end, here comes the House Ethic Committee to pronounce that no ethics breaches were found among House members in its investigation involving the scandal surrounding Countrywide “VIP loans” and the “Friends of Angelo.” And in just doing so, the House effectively cleared itself of any wrongdoing and that’s it, case closed – move along… Move along.
For those who may have forgotten, it was only back in July that yet another House Committee, that for Oversight and Government Reform, found “Countrywide used its VIP Program to aid its lobbying efforts as well as to strengthen its relationship with taxpayer backed Fannie Mae. Countrywide partnered with Fannie Mae in a strategic business alliance that also included joint lobbying efforts.” Specifically, the report alleged that:
“The Committee’s investigation found Countrywide lobbyists and CEO Angelo Mozilo used discounted loans as a tool to ingratiate itself with policymakers in an effort to benefit the company’s business interests,” said Issa. “A former lobbyist for Countrywide testified that Members of Congress, staff, and other government officials were directed to the company’s VIP program as part of an effort to create a favorable impression of the company on Capitol Hill. This preferential treatment – that varied depending on the influence of the borrower – was not routinely offered to the public.”
When will the government stand behind the people and not behind the fraud? If it’s not one fraud there is always a next fraud waiting around the corner, waiting to be uncovered.
Tampa Bay Times-
Two years after he died of cancer, Dorothy Jackson’s late husband received a letter from the bank.
“Dear David A. Jackson Deceased,” the letter said. It was from a Wells Fargo “home preservation specialist,” offering advice if Mr. Jackson had a “change in circumstances.”
The bank said it was open to helping Jackson’s late husband of five decades, a retired Tampa police sergeant whose death kept Dorothy, 72, from making her monthly payments of more than $2,000.
The job of head of enforcement at the Securities and Exchange Commission is now open. The Obama administration should press for the appointment of Neil Barofsky, former special inspector general for the Troubled Asset Relief Program, to this position. Unfortunately, the administration has given no indication it will do so, leaving the impression that it is likely to be business as usual for the next four years, with regulators who are less than tough on the industry.
Apparently non-violent demonstration against corrupt banking is subject to more criminal scrutiny than actual corrupt banking.
Documents released by the Partnership for Civil Justice Fund Saturday show that the FBI identified Occupy Wall Street as a “potential criminal and terrorist” threat as early as a month before the OWS movement burst on the international scene with its initial occupation of Zuccotti Park in September 2011.
“These documents show that the FBI and the Department of Homeland Security are treating protests against the corporate and banking structure of America as potential criminal and terrorist activity,” Mara Verheyden-Hilliard, executive director of PCJF, said in a release . “These documents also show these federal agencies functioning as a de facto intelligence arm of Wall Street and Corporate America.”
Today, Secretary Geithner sent the following letter to Congress regarding the debt limit.
***
December 26, 2012
The Honorable Harry Reid
Majority Leader
United States Senate
Washington, DC 20510
Dear Mr. Leader:
I am writing to inform you that the statutory debt limit will be reached on December 31, 2012, and to notify you that the Treasury Department will shortly begin taking certain extraordinary measures authorized by law to temporarily postpone the date that the United States would otherwise default on its legal obligations.
These extraordinary measures, which are explained in detail in an appendix? to this letter, can create approximately $200 billion in headroom under the debt limit. Under normal circumstances, that amount of headroom would last approximately two months. However, given the significant uncertainty that now exists with regard to unresolved tax and spending policies for 2013, it is not possible to predict the effective duration of these measures. At this time, the extent to which the upcoming tax filing season will be delayed as a result of these unresolved policy questions is also uncertain. If left unresolved, the expiring tax provisions and automatic spending cuts, as well as the attendant delays in filing of tax returns, would have the effect of adding some additional time to the duration of the extraordinary measures. Treasury will provide more guidance regarding the expected duration of these measures when the policy outlook becomes clearer.
Sincerely,
Timothy F. Geithner
Identical letter sent to:
The Honorable John A. Boehner, Speaker of the House
The Honorable Nancy Pelosi, House Democratic Leader
The Honorable Mitch McConnell, Senate Republican Leader
cc: The Honorable Dave Camp, Chairman, House Committee on Ways and Means
The Honorable Sander M. Levin, Ranking Member, House Committee on Ways and Means
The Honorable Max Baucus, Chairman, Senate Committee on Finance
The Honorable Orrin Hatch, Ranking Member, Senate Committee on Finance
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