Relief for Homeowners?

Will the BlackRock/PIMCO suit help homeowners? Not directly. But it will get some big guns on the scene, with the ability to do all sorts of discovery, and the staff to deal with the results.

Fraud is grounds for rescission, restitution and punitive damages. The homeowners may not have been parties to the pooling and servicing agreements governing the investor trusts, but if the whole business model is proven to be fraudulent, they could still make a case for damages.

Global Research-

For years, homeowners have been battling Wall Street in an attempt to recover some portion of their massive losses from the housing Ponzi scheme. But progress has been slow, as they have been outgunned and out-spent by the banking titans.

In June, however, the banks may have met their match, as some equally powerful titans strode onto the stage. Investors led by BlackRock, the world’s largest asset manager, and PIMCO, the world’s largest bond-fund manager, have sued some of the world’s largest banks for breach of fiduciary duty as trustees of their investment funds. The investors are seeking damages for losses surpassing $250 billion. That is the equivalent of one million homeowners with $250,000 in damages suing at one time.

The defendants are the so-called trust banks that oversee payments and enforce terms on more than $2 trillion in residential mortgage securities. They include units of Deutsche Bank AG, U.S. Bank, Wells Fargo, Citigroup, HSBC Holdings PLC, and Bank of New York Mellon Corp. Six nearly identical complaints charge the trust banks with breach of their duty to force lenders and sponsors of the mortgage-backed securities to repurchase defective loans.

[GLOBAL RESEARCH]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

 

DAVID MERRITT; SALMA MERRITT, Plaintiffs-Appellants,
v.
COUNTRYWIDE FINANCIAL CORPORATION, a Delaware corporation; COUNTRYWIDE HOME LOANS, INC., a New York corporation; ANGELO MOZILO, an individual; MICHAEL COLYER, an individual; DAVID SAMBOL, an individual; BANK OF AMERICA, NA; KEN LEWIS, an individual; JOHN BENSON, Defendants-Appellees.

No. 09-17678.United States Court of Appeals, Ninth Circuit.Argued and Submitted November 9, 2012—San Francisco, California.Filed July 16, 2014.Jacob N. Foster (argued), Kasowitz, Benson, Torres & Friedman LLP, San Francisco, California, for Plaintiffs-Appellants.

James Goldberg (argued) and Stephanie A. Blazewicz, Bryan Cave LLP, San Francisco, California; Douglas E. Winter and Angela Buenaventura, Bryan Cave LLP, Washington D.C., for Defendants-Appellees Countrywide Home Loans, Inc., Countrywide Financial Corporation, Bank of America Corporation, Michael Coyler, David Sambol, and Kenneth Lewis.

Charles Elder and Caleb Bartel, Irell & Manella LLP, Los Angeles, California, for Defendant-Appellee Angelo Mozilo.

Susan H. Handelman, Ropers, Majeski, Kohn & Bently, Redwood City, California, for Defendant-Appellee John Benson.

Before: Andrew J. Kleinfeld and Marsha S. Berzon, Circuit Judges, and William E. Smith, District Judge.^[*]

Opinion by Judge Berzon, Dissent by Judge Kleinfeld

OPINION

BERZON, Circuit Judge.

Once again, we address issues arising from Countrywide Financial Corporation’s residential lending business during the period shortly before novel practices by lenders resulted in widespread distress in the housing markets. See, e.g., Balderas v. Countrywide Bank, N.A., 664 F.3d 787 (9th Cir. 2011); Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034 (9th Cir. 2011). David Merritt and Salma Merritt (“the Merritts”) sued Countrywide Financial Corporation and various other defendants (collectively “Countrywide” or “CHL”) involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims pleaded, with prejudice.^[1] This appeal followed.

We consider in this opinion two issues raised by that dismissal: (1) whether the district court properly dismissed the Merritts’ Truth in Lending Act (“TILA”) rescission claim because they did not tender the rescindable value of their loan prior to filing suit or allege ability to tender its value in their complaint; and (2) whether the Merritts’ claims under Section 8 of the Real Estate Settlement Practices Act (“RESPA”) may proceed, including whether the RESPA limitations period, 12 U.S.C. § 2614, may be equitably tolled.^[2]

Factual & Procedural Background

In March 2006, the Merritts took out both an adjustablerate mortgage^[3] and a home equity line of credit (“HELOC”) with Countrywide on a home they purchased in Sunnyvale, California.^[4] Initially, the Merritts’ Countrywide agent had told them, “I can pretty much guaranty you that we can get you in your new home for $1800 per month and possibly even as low as $1,500.” Three days before closing, however, the agent told the Merritts that he had completed their loan package and that their monthly payments would be $4,400 a month for the first five years: $3,200 for the mortgage, plus $1,200 for the HELOC. When the Merritts balked, the agent replied that “the market had shifted” since his initial estimates. He told the Merritts that the $4,400 monthly payment was “the lowest that you’ll find anywhere,” and if they did not close right away, they would lose their goodfaith deposit. He did not disclose that the $4,400/month figure was based on a temporary, “teaser” interest rate rather than a fixed rate, and that the Merritts’ monthly payments would be much higher once the teaser rate expired. The Merritts would not have accepted the loan if they had understood the terms.

The home’s owner falsely represented himself throughout the process as the selling agent. As the sale approached, he spoke with the Merritts’ Countrywide agent about getting the home appraised. The seller stated that he had found an appraiser who would provide an inflated appraisal of $739,000, above the home’s actual value of about $690,000, so as to justify a higher sale price. The Countrywide agent responded that he preferred to select the appraiser himself, but that since Countrywide had used the seller’s recommended appraiser before, he would agree to using him for this sale. The Countrywide agent, the seller, and the appraiser spoke over the phone, and the appraiser agreed to provide a $739,000 appraisal before having reviewed the property. The Merritts allege that Countrywide maintained a company practice of encouraging agents to select appraisers who would provide inflated appraisals, so as to increase the total amounts financed and thereby maximize Countrywide’s profits.

On the date of closing, a Countrywide representative arrived at the Merritts’ home with loan documents and said, “I will not have time to wait for you to read any of the documents, but just need you to sign these and if you have any questions or concerns afterwards, you can contact your loan agent.” The Merritts signed the documents, but between the small print and “confusing language,” did not understand the documents provided. The Countrywide representative did not give the Merritts copies of the signed documents to keep, only form notices of their right to rescind. The spaces where the lender would ordinarily fill in the relevant dates and deadlines on the form notices were left blank. The Merritts similarly were given a form for TILA disclosures, but with the spaces left blank for the annual percentage rate, finance charge, amount financed, total of payments, schedule of payments, and variable interest rate.

The day after the closing, the Merritts called their Countrywide agent and asked him to clarify the terms of their mortgage. The agent assured them that he would send them further documentation but never did. He also promised that they could refinance their mortgage at a lower interest rate after a year of on-time payments.

Over the next three years, the Merritts repeatedly requested from Countrywide the completed disclosures, to no avail. Meanwhile, Countrywide continued to send the Merritts monthly billing statements that did not disclose that the “minimum payment due” would only be applied to interest, and that they should pay more if they wanted to begin paying down the principal.

In 2009, Countrywide sent the Merritts the loan documents that they had been requesting for three years. By then, the Merritts had made about $200,000 in payments to Countrywide. The Merritts consulted with lawyers, who told them that they had been victims of “predatory lending.” They had their loan materials audited by an underwriter, who told them that he had identified numerous violations of state and federal law, including TILA, in the documentation provided by Countrywide.

Meanwhile, in August 2008, the Merritts suffered a loss of income that made them unable to afford their monthly payments. They repeatedly asked Countrywide to refinance or modify their mortgage into a conventional loan, but Countrywide refused.

In February 2009, the Merritts notified Countrywide that they wished to rescind their loan. Countrywide did not respond to the rescission request, instead offering to modify the loan. The modified loan offered was one the Merritts still could not afford.^[5]

The Merritts filed this case pro se on March 18, 2009 and shortly thereafter amended the complaint.^[6] Countrywide moved to dismiss the complaint in its entirety. The district court granted the motion, with prejudice. As relevant to the issues in this opinion, the district court dismissed the Merritts’ claim for rescission under TILA because the Merritts did not tender the value of their HELOC to Countrywide before filing suit, and dismissed their claims under Section 8 of RESPA as time-barred.

This appeal followed. We appointed pro bono counsel to represent the Merritts before this court.

Discussion

A. TILA rescission

TILA provides two remedies for loan disclosure violations — rescission and civil damages, each governed by separate statutory procedures.^[7] Under TILA, an obligor has the “right to rescind . . . until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required under this section . . . whichever is later.” 15 U.S.C. § 1635(a). Regardless of whether the required information and forms have been delivered, “[the] obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property.” Id. § 1635(f).

The TILA rescission provisions set out the following sequence of events for pursuing rescission: First, the obligor must notify the creditor of his intention to rescind, id. § 1635(a); then, within 20 days after receipt of notice of rescission, the creditor must return to the obligor any security interest, id. § 1635(b); and lastly, “[u]pon the performance of the creditor’s obligations under this section [i.e., upon return of the security interest], the obligor shall tender the property to the creditor.” Id. These procedures “shall apply except when otherwise ordered by a court.” Id.

Notably, “[t]he sequence of rescission and tender set forth in § 1635(b) is a reordering of the common law rules governing rescission.” Williams v. Homestake Mortg. Co., 968 F.2d 1137, 1140 (11th Cir. 1992) (citing 17A Am. Jur. 2d Contracts § 590, at 600-01 (1991)). Specifically, “[a]lthough tender of consideration received is an equitable prerequisite to rescission, the requirement was abolished by the Truth in Lending Act.” Palmer v. Wilson, 502 F.2d 860, 861 (9th Cir. 1974) “Under § 1635(b),” consequently,

all that the consumer need do is notify the creditor of his intent to rescind. The agreement is then automatically rescinded and the creditor must, ordinarily, tender first. Thus, rescission under § 1635 places the consumer in a much stronger bargaining position than he enjoys under the traditional rules of rescission.

Williams, 968 F.2d at 1140 (internal quotation marks and alteration omitted). By reversing the traditional sequence for common law rescission claims, TILA “shift[s] significant leverage to consumers,” consistent with the statute’s general consumer-protective goals. Lea Krivinskas Shepard, It’s All About the Principal: Preserving Consumers’ Right of Rescission under the Truth in Lending Act, 89 N. C. L. Rev. 171, 188 (2010).

At the same time, consumer protection is not the only goal of statutory rescission under TILA; “another goal of § 1635(b) is to return the parties most nearly to the position they held prior to entering into the transaction.” Williams, 968 F.2d at 1140. Balancing the two goals, the case law construing TILA has long recognized courts’ equitable power to modify the statutory rescission process. See id. at 1140; Palmer, 502 F.2d at 862. Congress confirmed this equitable role for courts overseeing TILA rescission proceedings when it amended TILA in 1980 to clarify that the § 1635(b) sequence of procedures “shall apply except when otherwise ordered by a court.” See Truth in Lending Simplification and Reform Act, Pub. L. No. 96-221, § 612(a)(4), 94 Stat. 175 (1980), codified at 15 U.S.C. § 1635(b).

Invoking this permission, the district court dismissed the Merritts’ TILA rescission claim because their complaint did not “allege that they tendered the Home Equity Line of Credit or its reasonable value to CHL or Bank of America when they sought rescission.” In so ruling at the pleading stage, the district court erred.

In accordance with the statutory provision that courts may order an alteration of the sequence of events otherwise prescribed by the TILA rescission provision, see id., we have held that district courts may, if warranted by the circumstances of the particular case, require the obligor to provide evidence of ability to tender as a condition for denial of a summary judgment motion advanced by the creditor. See Yamamoto v. Bank of New York, 329 F.3d 1167, 1171-73 (9th Cir. 2003). Yamamoto concluded that where “it is clear from the evidence that the borrower lacks capacity to pay back what she has received (less interest, finance charges, etc.), the court does not lack discretion to do before trial what it could do after,” i.e., refuse to enforce rescission. Id. at 1173. In so ruling, Yamamoto relied on earlier cases which had permitted judges after a resolution of the TILA claim on the merits to condition rescission on tender. Palmer, one of those earlier cases, had instructed courts considering such a condition to take into account “the equities present in a particular case, as well as consideration of the legislative policy of full disclosure that underlies [TILA] and the remedial-penal nature of the private enforcement provisions of the Act.” Id. at 1171 (quoting Palmer, 502 F.2d at 862); see also LaGrone v. Johnson, 534 F.2d 1360, 1362 (9th Cir. 1976) (holding that court should condition rescission on tender where TILA violations “were not egregious and the equities heavily favor the creditors”).

Like some other district courts in this circuit, the district court in this case extended Yamamoto to require that plaintiffs plead ability to tender in their complaint. See Botelho v. U.S. Bank, N.A., 692 F. Supp. 2d 1174, 1180 (N.D. Cal. 2010) (collecting cases). We reject this extension.

As Botelho noted, Yamamoto “was decided in the procedural context of summary judgment, when the district court was in a position to consider a full range of evidence in deciding whether to condition rescission on tender.” Id. at 1180. Without such evidentiary development, a district court is in no position to evaluate equitable considerations of the sort identified in Yamamoto and its predecessors. The equities to be considered, Yamamoto noted, might include the nature of the TILA violations (such as whether they were or were not egregious); whether the obligor had gone into bankruptcy; and the borrower’s ability to repay the proceeds (including, perhaps, whether that ability to repay was itself dependent upon a rescission order because without such an order, the obligor could not refinance or sell the property). 329 F.3d at 1171, 1173. “Whether the call is correct must be determined on a case-by-case basis, in light of the record adduced.” Id. at 1173. In making the call, the court may consider evidence such as affidavits and deposition testimony or may hold an evidentiary hearing. See Palmer, 502 F.2d at 862. To prescribe the pleading of ability to tender in every TILA rescission case would be inconsistent with this evidencegrounded, case-by-case approach.^[8]

Further, our approach better comports with the TILA statutory text, which prescribes an enforcement sequence except when “otherwise ordered by a court.” 15 U.S.C. § 1635(b). If all obligors had to allege ability to tender payment when seeking rescission and so allege in a complaint for enforcement of the rescission obligation, then (1) the requirement of doing so would no longer be an exception, and (2) the requirement would not be “otherwise ordered by a court,” as a complaint initiates suit before any court order issues.

Moreover, Yamamoto recognized that if a creditor acquiesces at the outset in the notice of rescission, “then the transaction [is] rescinded automatically, thereby causing the security interests to become void and triggering the sequence of events laid out in subsections (d)(2) and (d)(3) [of Regulation Z, 12 C.F.R. § 226.23, which implements 15 U.S.C. § 1635(b)].” 329 F.3d at 1172. Yamamoto‘s holding allowing district courts to vary that sequence was targeted at situations in which the creditor “produce[s] evidence sufficient to create a triable issue of fact about compliance with TILA’s disclosure requirements.” Id. Where no such evidence (or viable legal argument) is produced, then the situation is legally indistinguishable for judicial remedy purposes from one in which the creditor initially acquiesced in the rescission; that is what should have happened in the absence of a tenable defense. Automatically to require tender in the pleadings before any colorable defense has been presented would encourage creditors to refuse to honor indisputably valid rescission requests, because doing so would allow the security interest to remain in place absent tender. The result would be to allow creditors to vary the statutory sequence simply through intransigence.

In addition, in many cases, it will be impossible for the parties or the court to know at the outset whether a borrower asserting her TILA rescission rights will ultimately be able to return the loan proceeds as required by the statute. That ability may depend upon the merits of her TILA rescission claim or on other claims related to the same loan transaction. See, e.g., Prince v. U.S. Bank Nat’l Ass’n, 2009 WL 2998141, at *5 (S.D. Ala. Sept. 14, 2009) (denying creditor’s motion to dismiss as based on “mere speculation” that plaintiffs would be unable to tender, and indicating that court would address the proper sequences for implementing the rescission, if necessary, only after resolving the rescission claim on the merits). For instance, if a TILA rescission claim is meritorious and the creditor relinquishes its security interest in the property upon notice of rescission as required by the default § 1635(b) sequence, the obligor may then be able to refinance or sell the property and thereby repay the original lender. Cf. Burrows v. Orchid Island TRS, LLC, 2008 WL 744735, at *6 (C.D. Cal. Mar. 18, 2008) (declining to require pleading of tender where the court inferred that borrower would be able to tender by selling or refinancing the property if rescission was found to be appropriate); Williams v. Saxon Mortg. Co., 2008 WL 45739, at *6 n.10 (S.D. Ala. Jan. 2, 2008) (declining to condition rescission on tender as was done in Yamamoto, because it was not clear that borrower would not be able to refinance the loan). Or her complaint may allege damages claims arising from the same loan transaction, the proceeds of which, if successful, could then be used to satisfy her TILA tender obligation. See Shepard, supra, at 205 & n.200, 210.

For all these reasons, any requirement that all TILA rescission plaintiffs allege ability to tender cannot be reconciled with the statute, Yamamoto‘s holdings, and Yamamoto‘s underpinnings. Any suggestion that such a pleading requirement may apply in some cases but not others fares no better, for two reasons:

First, requiring a subset of TILA rescission plaintiffs to plead tender would effectively impose a special pleading requirement upon those plaintiffs, without any advance notice as to who those plaintiffs are. After Ashcroft v. Iqbal, 556 U.S. 662 (2009), as before, “Rule 8(a)’s simplified pleading standard applies to all civil actions, with [only] limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (emphasis added); see Starr v. Baca, 652 F.3d 1202, 1215-16 (9th Cir. 2011) (discussing how to reconcile Iqbal and Swierkiewicz). Under this standard, a plaintiff need only plead “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively,” and “the factual allegations that are taken as true must plausibly suggest an entitlement to relief.” Starr, 652 F.3d at 1216. There is no authority for altering the pleading requirements for a given statutory claim for some plaintiffs making that claim and not for others.

Second, there would be no principled way to determine which plaintiffs should be required to plead tender in the complaint. Yamamoto and its predecessors indicate that major factors as to whether to require tender in advance of rescission are the strength of any defense to rescission and the egregiousness of any TILA violation. Neither of these considerations can be evaluated before the creditor advances its defense, factually and legally. Nor do we see how the other “case-by-case” considerations pertinent under Yamamoto can be set out in such a way as to notify TILA plaintiffs in advance of any special, heightened pleading requirements applicable to them in particular.

For all these reasons, we hold that plaintiffs can state a claim for rescission under TILA without pleading that they have tendered, or that they have the ability to tender, the value of their loan. Only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission — and then only on a “case-by-case basis,” Yamamoto, 329 F.3d at 1173, once the creditor has established a potentially viable defense.

In light of this holding, we reverse the district court’s Rule 12(b)(6) dismissal of the Merritts’ TILA rescission claim and remand for further proceedings on that claim.

B. The RESPA Section 8 claims

Congress enacted RESPA in 1974 in response to abusive practices that inflate the cost of real estate transactions. 12 U.S.C. § 2601(a); see Sosa v. Chase Manhattan Mortg. Corp., 348 F.3d 979, 981 (11th Cir. 2003). Section 8 of RESPA prohibits kickbacks and unearned fees and may be enforced criminally or civilly. 12 U.S.C. § 2607. Civil actions under this section must be brought within one year of the alleged violation. Id. § 2614. The district court dismissed the Merritts’ claims under Section 8 of RESPA as “barred by the one-year statute of limitations because Plaintiffs filed suit nearly three years after closing on their loan.” The district court held that “the [RESPA] limitations period begins to run as of the date of the closing,” and did not address whether the statute might have been equitably tolled to the date in 2009 when the Merritts allege that they actually received their loan documents.

There is no direct precedent in this court on the RESPA equitable tolling issue, although we have held that the closely similar TILA limitations period provision may be equitably tolled. See King v. California, 784 F.2d 910, 914-15 (9th Cir. 1986). Before proceeding to the question whether we should reach the same conclusion as to tolling under RESPA as we did under TILA, we first consider whether we should pretermit that issue by affirming on a separate ground.

1. Plaintiffs’ RESPA Section 8 claims

We may affirm a dismissal on any properly preserved ground supported in the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008); Papa v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002). However, we are not required to do so, “and as a prudential matter can properly remand to the district court” rather than “decide ab initio issues that the district court has not had an opportunity to consider and that present questions of first impression in our circuit.” Badea v. Cox, 931 F.2d 573, 575 n.2 (9th Cir. 1991) (internal quotation marks omitted).

After considering the two RESPA Section 8 claims briefly, we have determined, as we shall explain shortly, that each raises fairly complex legal questions of first impression in this circuit neither decided by the district court nor fully briefed before this court. We therefore conclude that prudence counsels against addressing those claims on the merits in advance of any district court decision on them.

Plaintiffs alleged two theories of liability under Section 8 of RESPA, which we address in turn.

a. Section 8(b)

RESPA Section 8(b) prohibits the “giv[ing] . . . [of] any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service . . . other than for services actually performed.” 12 U.S.C. § 2607(b). The Merritts allege that defendants violated Section 8(b) by “charg[ing] [them] . . . cost[s] for copying, insurance and other costs associated with the loan, which cost Defendants significantly less,” thereby “pass[ing] on charges which falls within the definition of `markups’ and were charges not actually earned for any service.”

A case closely similar, but not identical, to this one as to the RESPA Section 8 “markup” issue, Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 553 (9th Cir. 2010), held that RESPA Section 8(b) “prohibits only the practice of giving or accepting money where no service whatsoever is performed in exchange for that money” (emphasis added). “By negative implication, Section 8(b) cannot be read to prohibit charging fees, excessive or otherwise, when those fees are for services that were actually performed.” Id. at 553-54.

The plaintiffs in Martinez did not press a third-party “markup” theory on appeal — that is, a theory that depended on the provision of services by a party other than by the defendant who charged the fee and collected it from the consumer. See id. at 552 n.2. The Merritts, therefore, urge us to distinguish Martinez and follow the Second Circuit’s decision in Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49 (2d Cir. 2004). Kruse held that while straight overcharges are not actionable under Section 8(b), markups for services provided by a third party are actionable. Id. at 58-62.

The circuits are divided on the third-party markup issue under RESPA. In holding that third-party markups were actionable under Section 8(b), Kruse held that the statute itself was ambiguous and therefore deferred to a HUD policy statement interpreting the provision to prohibit markups. See Kruse, 383 F.3d at 57. Santiago v. GMAC Mortg. Corp., Inc., 417 F.3d 384, 388-89 (3d Cir. 2005), like Kruse, held that markups are actionable under Section 8(b), although it relied on the statutory language as unambiguous, rather than on an agency interpretation of an ambiguous statute. In contrast, several circuits have held or strongly implied that third-party markups are not actionable under RESPA Section 8(b). See Freeman v. Quicken Loans, Inc., 626 F.3d 799, 804 (5th Cir. 2010) (“RESPA is an anti-kickback statute, not an anti-price gouging statute”); Haug v. Bank of Am., N.A., 317 F.3d 832, 836 (8th Cir. 2003) (holding that charging plaintiffs more for third-party services than defendant paid for them, “standing alone, does not violate Section 8(b) of RESPA”); Boulware v. Crossland Mortg. Corp., 291 F.3d 261, 266, 268 (4th Cir. 2002) (“§ 8(b) requires fee-splitting or a kickback”; “Congress chose to leave markups . . . to the free market”); Krzalic v. Republic Title Co., 314 F.3d 875, 881 (7th Cir. 2002) (holding that markups are not actionable under RESPA, which “is not a price-control statute”).^[9]

This question, which raises complicated issues of statutory interpretation and administrative law of first impression in this circuit, was not addressed by the district court and only minimally briefed before this court. We therefore decline to decide the question in the first instance on appeal.

b. Section 8(a)

Section 8(a) prohibits the “giv[ing] . . . [of] any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.” 12 U.S.C. § 2607(a). Plaintiffs’ theory of Section 8(a) liability is that Countrywide referred appraisal business to the appraiser, Benson, in exchange for a “thing of value,” namely, an inflated appraisal.

At oral argument, defendants disputed the facts underlying the Section 8(a) claim. Specifically, defendants argued that the Merritts have admitted that the appraisal referral was made “before [they] first contacted Countrywide.” These factual claims rely on documents that were not before the district court, and in any event, are unavailing in light of this court’s duty to accept the plaintiffs’ allegations as true at the pleading stage of the litigation. Contrary to defendants’ representation at oral argument, the operative complaint alleges that the Merritts were in contact with their Countrywide agent as early as February 2006, and that the agent and the appraiser were in contact in early March. To the extent that there are possible inconsistencies in the timeline alleged in the complaint, the district court as well as this court must construe the complaint in the light most favorable to the plaintiffs and grant leave to amend if any defects could be cured. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) (pro se complaints should be dismissed without leave to amend only if it is clear that deficiencies could not be cured by amendment).

Countrywide also argued in its brief that the Merritts’ Section 8(a) claim cannot survive dismissal because the statute only provides for liability “to the person or persons charged for the settlement service involved in the violation,” 12 U.S.C. § 2607(d)(2), and the Merritts did not allege that they were charged for the appraisal. However, this failing could be cured if the Merritts were granted leave to amend the complaint to allege that, as they contend in their reply brief, they paid the appraiser directly.

A more complicated question is whether an inflated appraisal would qualify as a “thing of value” as that term is defined for RESPA purposes. The answer is not self-evident, the parties briefed this question only in passing, and the district court did not decide it. Moreover, the determination of this question may depend on factual development as to the precise structure of the agreement and the sequence of events. We therefore do not decide this question in the first instance either. We conclude only that we are not prepared to affirm at this juncture on the ground that the inflated appraisal was not a “thing of value” for RESPA purposes, and so must reach the limitations issue.

2. Equitable tolling

The district court dismissed the Merritts’ claims under Section 8 of RESPA as “barred by the one-year statute of limitations because Plaintiffs filed suit nearly three years after closing on their loan,” and, although the issue was raised, did not consider whether the statute might have been equitably tolled to the date in 2009 when the Merritts allege that they actually received their loan documents. Only at that time, the Merritts allege, did they learn about the markups charged, as well as key information about their loan that could help to tip them off to the appraisal kickback scheme, including that the individual they thought had been the home’s selling agent was actually also its owner.

The pertinent RESPA limitations provision states:

Jurisdiction of courts; limitations. Any action pursuant to the provisions . . . of this title may be brought in the United States district court or in any other court of competent jurisdiction, for the district in which the property involved is located, or where the violation is alleged to have occurred, within . . . 1 year in the case of a violation of section 2607 . . . of this title from the date of the occurrence of the violation

. . . .

12 U.S.C. § 2614.

We have not previously decided whether the RESPA statutory limitations period may be equitably tolled. King did, however, address a closely similar question concerning the TILA limitations period. King, 784 F.2d 910. King held that the TILA limitations period was subject to equitable tolling. Id. at 195. We reach the same conclusion here with regard to the RESPA limitations period.

There has, however, been considerable development since King in the general principles governing the availability of equitable tolling of statutory limitations periods. Consequently, we conduct a somewhat more extensive analysis of the pertinent considerations than did King, albeit with the same result.

Our departure point under post-King case law is the proposition that “[t]ime requirements in lawsuits between private litigants are customarily subject to `equitable tolling.'” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990) (citing Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)). To determine whether the RESPA limitations period falls within that customary rule, we must first determine whether it is jurisdictional; courts “[have] no authority to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007). If the RESPA limitations period is non-jurisdictional, we must assess whether Congress has clearly precluded equitable tolling. See United States v. Brockamp, 519 U.S. 347, 350 (1997).

a. The RESPA limitations period is not jurisdictional

In a series of recent cases, the Supreme Court has “pressed a strict[] distinction between truly jurisdictional rules, which govern `a court’s adjudicatory authority,’ and nonjurisdictional `claim-processing rules,’ which do not.” Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004)). In doing so, the Court has clarified that “the term `jurisdictional’ properly applies only to prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) implicating [the court’s adjudicatory] authority.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160-61 (2010) (emphasis added) (internal quotation marks omitted). Moreover, a rule is “jurisdictional” only if “Congress has `clearly state[d]’ that the rule is jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 824 (2013) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516 (2006) (alteration in original)). To determine whether Congress clearly intended a statutory restriction to be jurisdictional, courts review factors such as the statute’s language, “context, and relevant historical treatment.” Reed Elsevier, 559 U.S. at 166. Applying this test, the Court has repeatedly held that “filing deadlines ordinarily are not jurisdictional; indeed, [the Court has] described them as `quintessential claim-processing rules.'” Sebelius, 133 S. Ct. at 825 (quoting Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011)). With these precepts in mind, we proceed to examine the relevant factors.

i. Language

By its terms, § 2614 provides that any RESPA Section 8 action “may be brought . . . within 1 year . . . from the date of the occurrence of the violation.” 12 U.S.C. § 2614 (emphasis added). This non-mandatory language is far more permissive than several limitations provisions that have been held amenable to equitable tolling. For example, the limitations provision held to be non-jurisdictional and tollable in Henderson, 131 S. Ct. at 1204, stated that a claimant “shall file . . . within 120 days” (emphasis added). If not all “mandatory prescriptions, however emphatic, are . . . properly typed jurisdictional,” Henderson, 131 S. Ct. at 1205 (emphasis added) (internal quotation marks omitted), then the use of permissive, non-mandatory language such as RESPA’s “may file” language weighs considerably against a finding that the limitations period is jurisdictional.

ii. Statutory placement

In examining whether or not a rule is jurisdictional, a few of the Supreme Court’s recent cases have assigned some significance to whether the rule is “located in a jurisdictiongranting provision.” Reed Elsevier, 559 U.S. at 166; see also Henderson, 131 S. Ct. 1205; Payne v. Peninsula Sch. Dist., 653 F.3d 863, 870-71 (9th Cir. 2011) (en banc), overruled in part on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). Countrywide primarily relied upon this factor to support its argument against equitable tolling, citing the D.C. Circuit’s holding that “the [RESPA] time limitation is a jurisdictional prerequisite to suit and as such not subject to equitable tolling.” Hardin v. City Title & Escrow Co., 797 F.2d 1037, 1038 (D.C. Cir. 1986). To reach its conclusion, Hardin relied upon the placement of the RESPA time limitation in “the same sentence” that, in Hardin‘s characterization, “creates federal and state court jurisdiction” under RESPA, and upon the subtitle of the section, “Jurisdiction of Courts.” See id. at 1039.

In light of Supreme Court cases decided since Hardin, we cannot agree with the D.C. Circuit that the RESPA time limitation is placed in a sentence that “creates federal and state court jurisdiction.” It is true that the provision appears under the heading “Jurisdiction of courts; limitations.” But, as the Supreme Court has noted in recent years, “jurisdiction” has “many, too many meanings.” Arbaugh, 546 U.S. at 510. In particular, use of the word “jurisdiction” does not make a provision “jurisdiction-granting.” Reed Elsevier so indicated, rejecting the argument that the “presence of the word `jurisdiction'” in a provision renders the entire provision jurisdictional. 559 U.S. at 163. Moreover, “[a] requirement we would otherwise classify as nonjurisdictional . . . does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.” Sebelius, 133 S. Ct. at 825 (citing Gonzalez, 132 S. Ct. at 651-52). “Mere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.” Gonzalez, 132 S. Ct. 651.

Here, although the RESPA limitations period appears in a provision that references the court’s “jurisdiction,” the section, read as a whole, is not a “jurisdiction-granting provision.” Reed Elsevier, 559 U.S. at 166 (emphasis added). The provision’s reference to “United States district court[s]. . . [and] other court[s] of competent jurisdiction” implies, instead, that the source of the referenced courts’ “competent jurisdiction” lies elsewhere. And that is in fact the case with regard to federal district courts, which have jurisdiction to hear claims “arising under” RESPA because it is a “law[]. . . of the United States.” See 28 U.S.C. § 1331. Other than providing for a limitations period, then, the RESPA provision at 12 U.S.C. § 2614 simply clarifies that, when determining in which court of competent jurisdiction they will file their claim, RESPA litigants have a choice of venue: either “the district in which the property involved is located,” or, if it differs, “where the violation is alleged to have occurred.” 12 U.S.C. § 2614.

iii. Historical treatment

In some statutory contexts, there is a venerable, consistent line of Supreme Court cases construing whether a particular limitations provision is jurisdictional. See, e.g., Bowles, 551 U.S. at 210-13; John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 137-39 (2008). Here we have no such historical guidance, as the Supreme Court has not addressed whether RESPA’s limitations period is jurisdictional, nor has our court. In the absence of Supreme Court precedents the case for deference to historical guidance is much weaker here than in cases such as Bowles, 551 U.S. 205.

We do, however, have pertinent established law in this circuit, namely King, 784 F.2d 910; see also Ramadan v. Chase Manhattan Corp., 156 F.3d 499, 501-05 (3d Cir. 1998) (following King‘s holding as to TILA). King is precedent in this circuit, and is persuasive authority in this case.

King construed TILA’s similarly worded limitations period, and held it amenable to equitable tolling. The TILA limitations provision is as follows:

(e) Jurisdiction of courts; limitations on actions; State attorney general enforcement

Except as provided in the subsequent sentence, any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. . . .

15 U.S.C. § 1640(e). Like the RESPA limitations period, then, the parallel TILA provision appears in the same sentence as a reference to “jurisdiction” and under the heading “Jurisdiction of courts; limitations on actions.”^[10]

King was decided without the benefit of the Supreme Court’s recent admonitions against “profligate use” of the term “jurisdiction[al].” Payne, 653 F.3d at 868 (internal quotation marks omitted); see Arbaugh, 546 U.S. at 510. But King necessarily relied upon an understanding that the TILA limitations period was non-jurisdictional; otherwise, King could not have held the limitations period contained in the subsection subject to equitable tolling. Reflecting that understanding of King, the Seventh Circuit, in Lawyers Title Insurance Corp. v. Dearborn Title Corp., 118 F.3d 1157 (7th Cir. 1997), relied in part upon King‘s reasoning when it expressly declined to follow the D.C. Circuit’s contrary holding in Hardin. Lawyers Title held, instead, that the RESPA limitations period is not jurisdictional and may be equitably tolled. See Lawyers Title, 118 F.3d at 1166-67.^[11]

Countrywide argues that Judge Posner’s opinion for the court in Lawyers Title is not persuasive, because it relies upon the premise that federal limitations periods “are universally. . . nonjurisdictional” unless they involve “actions against the United States.” Id. at 1166 (quoting Cent. States, Se. & Sw. Areas Pension Fund v. Navco, 3 F.3d 167, 173 (7th Cir. 1993)). The Supreme Court’s more recent equitable tolling jurisprudence indicates that the line is not quite so bright. For example, in Bowles, the Court held that “time limits for filing a notice of appeal are jurisdictional in nature.” 551 U.S. at 206.

But Irwin, decided before Lawyers Title, began from a similar premise — that “time requirements in lawsuits between private litigants are customarily subject to `equitable tolling.'” Irwin, 498 U.S. at 95. The difference between the “universally” adverb in Lawyers Title, 118 F.3d at 1166, and the “customarily” adverb in Irwin, 489 U.S. at 95, appears to reflect hyperbole in the former, but not a difference in fundamental concept. In contrast, Hardin applied the sort of rigidly formalistic jurisdictional analysis that the Supreme Court’s recent cases have eschewed.

All of these factors point towards a conclusion that the RESPA limitations period does not “implicat[e] [the district court’s adjudicatory] authority,” Reed Elsevier, 559 U.S. at 161, but, instead, is an ordinary “filing deadline,” a “quintessential claim-processing rule[].” See Sebelius, 133 S. Ct. at 825. We so conclude.

b. The presumption of equitable tolling applies

As the RESPA limitations period is not jurisdictional, RESPA claims are presumptively amenable to equitable tolling, see Irwin, 489 U.S. at 95, unless Congress has clearly indicated otherwise. There is no such indication in the statute.

Many of the considerations on which we relied as to the jurisdictional issue, particularly the permissive language used in the limitations provision, also help to negate any clear barrier to equitable tolling. In addition, we are guided by the analysis in King, 784 F.2d 910, which applied an approach with respect to equitable tolling generally consistent with the recent cases. King‘s logic with regard to the TILA limitation period applies equally to the parallel RESPA provision.

King began by asking “whether tolling the statute in certain situations [would] effectuate the congressional purpose” of the statute, always “our basic inquiry” when determining whether a limitations period may be equitably tolled. Id. at 914-15. Because TILA is a broadly remedial consumer-protection statute, King reasoned, “an inflexible rule that bars suit one year after consummation [of the loan]” would be “inconsistent with legislative intent.” Id. at 914. King also recognized, however, that Congress did not intend to expose lenders “to a prolonged and unforeseeable liability.” Id. King therefore struck the balance between consumer protection and predictable liability by holding that the TILA limitations period could, “in the appropriate circumstances,” be equitably tolled, but only “until the borrower discovers or had reasonable opportunity to discover the fraud or nondisclosures that form the basis of the TILA action.” Id. at 915.

As we have recently recognized, RESPA is, like TILA, “intended . . . to serve consumer-protection purposes.” Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 665 (9th Cir. 2012). Consistent with those purposes, we have concluded that “RESPA’s provisions relating to loan servicing procedures should be construed liberally to serve the statute’s remedial purpose.” Id. at 665-66 (internal quotation marks omitted). By the same token, “tolling the statute [of limitations] in certain situations [would] effectuate the congressional purpose” of protecting consumers. King, 784 F.2d at 915. There may be situations in which a consumer is unable to file suit within the statutory limitations period precisely because of a real estate service provider’s obfuscation or failure to disclose.

We hold, therefore, that although the limitations period in 12 U.S.C. § 2614 ordinarily runs from the date of the alleged RESPA violation, “the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover” the violation. King, 784 F.2d at 915. Just as for TILA claims, district courts may evaluate RESPA claims case-by-case “to determine if the general rule would be unjust or frustrate the purpose of the Act and adjust the limitations period accordingly.” Id.

* * *

The district court dismissed plaintiffs’ RESPA Section 8 claims as time-barred, holding that “the [RESPA] limitations period begins to run as of the date of closing,” and thereby assuming that the period could not be equitably tolled. Rather than “decide ab initio issues that the district court has not had an opportunity to consider and that present questions of first impression in our circuit,” Badea, 931 F.2d at 575 n.2, we decline, for the reasons explained, to affirm the dismissal of the Merritts’ Section 8 claims on alternate grounds. Instead, we reach the issue that was the basis for dismissal, failure to comply with the statutory limitations period. In light of our holding today regarding equitable tolling, we vacate the dismissal of the Section 8 claims on limitations grounds and remand for reconsideration. On remand, the district court may consider such evidence as it deems appropriate to determine on what date the Merritts discovered or had reasonable opportunity to discover the alleged Section 8 violations and whether they filed their complaint within a year of that date. If the district court determines that the plaintiffs’ RESPA Section 8 claims are not time-barred, it should permit substantive amendment of the claims upon an appropriate request and continue with further proceedings consistent with this opinion. See Lucas, 66 F.3d at 248 (“Unless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to amend.”).

Conclusion

We reverse the district court’s dismissal of plaintiffs’ TILA rescission claim and remand for further proceedings on that claim. As to plaintiffs’ RESPA Section 8 claims, we vacate the dismissal and remand to the district court for further consideration in accordance with this opinion.

REVERSED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

KLEINFELD, Senior Circuit Judge, dissenting:

I respectfully dissent.

We review a 12(b)(6) dismissal de novo,^[1] and can affirm on any ground, regardless of whether the district court relied on it.^[2]

This complaint violated Federal Rule of Civil Procedure 8(a)(2). The Rule requires a “short and plain statement of the claim showing that the pleader is entitled to relief.”^[3] We are indulgent with pro se complaints, but even for them, there are limits.

The Merritt complaint is neither “short” nor “plain.” It is 68 pages long, 398 paragraphs. Nor were they deprived of opportunities to clarify what their claims were. Though they call the complaint their “Second Amended Complaint,” the truth is that it is their fifth version. They got leave to file this version of their complaint by filing a motion explaining that the amendments would be “clarifications,” along with a “stipulation” to which Countrywide did not stipulate. The leave to amend they thus obtained mooted out Countrywide’s pending motion to dismiss, so it was not adjudicated. The plaintiffs then filed their amended complaint which was materially different from the one submitted to the district court with their motion for leave to amend. Far from “clarifying” their previous complaints, this new complaint added an additional 69 paragraphs, 16 pages, and yet another cause of action.

We have articulated five factors for evaluating whether a plaintiff should be given leave to amend: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.“^[4] We have held that the “district court’s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.”^[5] Here, the Merritts have submitted five different complaints to the district court. Further amendment would unduly prejudice the defendants. The defendants have responded to two of the Merritts’ five prolix, incomprehensible complaints, doubtless at great expense for their own lawyers. Defendants have filed numerous motions addressing those complaints, for violation of Rule 8, misrepresentations, failure to state claims upon which relief may be granted, and lack of appropriate service. That is a lot of wasted money. Plaintiffs imposed this unfair prejudice on defendants by their vague prolixity and multiple filings.

The Merritts’ most recent amendments made their complaint even more prolix, and less “short and plain.” Countrywide’s combined motion to strike and dismiss placed the Merritts on notice that their complaint failed to comply with Rule 8, but they made no attempt to bring their complaint into compliance with the rules. Because of this history, dismissal with prejudice was justified. Although dismissal with prejudice for failure to comply with the rules requires consideration of less drastic alternatives,^[6] here there were none, as it did not appear that plaintiffs were prepared, even after five tries, to make a short and plain statement of claims for which they were entitled to relief. Their misleading stipulation had already burdened Countrywide with the need to brief a second motion to dismiss. Allowing the Merritts a sixth attempt to plainly state their claims would be too prejudicial to the defendants to be a fair alternative under these circumstances.

The majority opinion does a heroic job of stating claims clearly on behalf of the Merritts. But plaintiffs did not state them. It is not fair to defendants to perform these legal services for plaintiffs, even pro se plaintiffs, where the plaintiffs do not evidently have good claims. “Prolix, confusing complaints such as the ones plaintiffs filed in this case impose unfair burdens on litigants and judges. As a practical matter, the judge and opposing counsel, in order to perform their responsibilities, cannot use a complaint such as the one plaintiffs filed, and must prepare outlines to determine who is being sued for what. Defendants are then put at risk that their outline differs from the judge’s, that plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different from what they reasonably expected. [T]he rights of the defendants to be free from costly and harassing litigation must be considered.”^[7]

If plaintiffs had what looked like a strong claim that ought to be adjudicated on the merits, judicial creation of a complaint for them might not be so unfairly prejudicial.^[8] But they do not. What they appear to be saying in their 398-paragraph complaint is that they bought a $729,000 house, and borrowed $739,000 for it, because the seller lowballed them into thinking they were going to get the house for $719,000. They seem to be saying that Countrywide’s agent persuaded them to lie, which they did, in their loan application, such as by saying that Mrs. Merritt was employed when she was actually receiving disability payments (later terminated). And they seem to be saying that because they were minorities they were offered a more ample adjustable rate mortgage instead of a less ample fixed rate mortgage loan than they would otherwise be entitled to.

Were we limited to 12(b)(6) dismissal, we would have to assume for purposes of decision that the plausible factual statements (but not the legal conclusions and editorializing rhetoric) in the complaint were true.^[9] We are not so limited under Rule 8 analysis, which I suggest ought to be applied. Under Rule 12 analysis, some of the claims are plausible at least in part. Obviously, if Countrywide did not properly provide the loan papers to the Merritts, a claim if timely could be made. Tender of the full amount received is not in all circumstances a sine qua non for a pleading claiming rescission, though some sort of equitable judgment requiring tender must be made if rescission is granted, to assure that the plaintiff does not get to keep what it bought and also get all the money back.^[10]

It is hard to say whether plaintiffs even seek a rescission remedy that could be allowed. The prayer in their complaint seeks a return of all the money they have “invested in their property,” plus compensatory damages, plus $2,000,000 in punitive damages, plus a “prime loan at current market rates” (far lower than the housing bubble interest rates that prevailed when they bought their $729,000 house), or for them to be able to walk away with the reimbursements and damages. Their appellate brief is more modest, but was not before the district court.

Their pleading seems to say that they have been living in a $729,000 house for what is now almost six years without paying anything toward the price. If they got past their Rule 8 problems, and their Rule 12 problems, their equities appear to be weak. The Merritts have had five chances to state this claim. Prejudice and futility counsel against giving them a sixth try. We ought to let the dismissal with prejudice stand.

[*] The Honorable William E. Smith, District Judge for the U.S. District Court the District of Rhode Island, sitting by designation.

[1] The district court dismissed the claims not on Rule 8 grounds but on the merits for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6). The dissent suggests we affirm on the basis of Rule 8(a)(2). The enforcement of Rule 8 rests within the district court’s discretion, and defendants do not raise any Rule 8(a)(2) questions before us. Under these circumstances, it would be improper for us to affirm on Rule 8 grounds. See Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969).

[2] We address the Merritts’ other claims, and the parties’ motions for judicial notice, in a memorandum disposition issued concurrently with his opinion.

[3] As is generally true in California, the legal instrument for the Merritts’ home loan was a deed of trust and not, technically speaking, a mortgage. See Siegel v. Am. Savings & Loan Ass’n, 258 Cal. Rptr. 746, 747 (Cal. Ct. App. 1989) (defining a deed of trust); 27 Cal. Jur. 3d Deeds of Trust § 1 (2011) (same); Cal. Civ. Code § 2920(b) (distinguishing mortgage from deed of trust for certain purposes under California state law). We refer to the Merritts’ home loan throughout this opinion as a mortgage, because that is how the parties have referred to it in their pleadings and briefs, and the precise financing instrument is not legally material to the issues addressed in this opinion.

[4] Because we are evaluating a district court’s dismissal pursuant to Rule 12(b)(6), we take the facts from the Merritts’ complaint and assume that they are true. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003).

[5] Countrywide had, in the meantime, been acquired by Bank of America. The Merritts’ loan was eventually sold to Wells Fargo.

[6] We refer to the amended complaint throughout simply as “the complaint.”

[7] Plaintiffs’ TILA claims relate solely to their home-equity line of credit, or “HELOC.” TILA does not apply to residential mortgages used to finance the initial acquisition or construction of a dwelling. See 15 U.S.C. §§ 1635(e)(1) & 1602(x). Countrywide presents for the first time on appeal the argument that plaintiffs’ HELOC falls within this residential mortgage exception. Because this argument was not previously raised in the district court, we do not address it here.

[8] Indeed, even in a common-law equitable rescission action where the plaintiff is required to tender first, the plaintiff need not necessarily plead ability to tender in the complaint. See 1 Dan B. Dobbs, Law of Remedies: Damages—Equity—Restitution § 4.8, at 463 (2d ed. 1993).

[9] The Eleventh Circuit has reserved whether a third-party markup theory might be viable under RESPA Section 8(b). See Sosa, 348 F.3d at 982-84.

[10] There is one distinction. The TILA limitations provision, as passed by Congress, appeared as one subsection in a section headed “Civil liability.” See Consumer Credit Protection Act, Pub. L. 90-321, § 130(e), 82 Stat. 146, 157 (1968). The subheading “Jurisdiction of courts” was added in the codification process. In contrast, the RESPA limitations provision, as passed by Congress, appeared under the heading “Jurisdiction of Courts.” See Real Estate Settlement Procedures Act of 1974, Pub. L. 93-534, § 16, 88 Stat. 1724, 1731 (1974). We do not ascribe significance to this distinction for present purposes. Whatever its origin, the heading just identifies a subject matter; it does not identify the subsection as jurisdiction-creating.

[11] Two other circuits have reserved the question of whether RESPA’s limitations period may be equitably tolled. See Egerer v. Woodland Realty, Inc., 556 F.3d 415, 424 n.18 (6th Cir. 2009); Snow v. First Am. Title Ins. Co., 332 F.3d 356, 361 n.7 (5th Cir. 2003).

[1] Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004).

[2] Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir. 1994). The majority cites dicta in Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969), a 1969 case, for the proposition that we should not, in the first instance, affirm a dismissal on Rule 8 grounds where the district court did not act upon the Rule 8 motions. On the other hand, we said, possibly in dicta, but possibly in holding, in a 1988 case, Sparling v. Hoffman Construction Co., 864 F.2d 635, 640 (9th Cir. 1988), that even if the pleading did state a claim upon which relief could be granted, “the complaint would be deficient under Rule 8(a) of the Federal Rules of Civil Procedure which requires `a short and plain statement of the claim showing that the pleader is entitled to relief.'” In the case before us, the court noted that the Merritts’ second amended complaint was “mostly unintelligible.” The district court further noted that the Merritts’ allegations and claims purported to be “made, at least in part, `hypothetically.'” It took note of the defendant’s motion to dismiss under Rule 8, but treated it as moot, because of the dismissal for failure to state a claim under Rule 12. I think we should affirm on Rule 8 grounds, and may, under Sparling.

[3] Fed. R. Civ. P. 8(a)(2).

[4] Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (emphasis added).

[5] Id. (quoting Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)).

[6] See, e.g., Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981).

[7] McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996) (internal quotation marks omitted) (alteration in original).

[8] See, e.g., Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1052 n.4 (9th Cir. 1971) (“Since harshness is a key consideration in the district judge’s exercise of discretion, it is appropriate that he consider the strength of a plaintiff’s case if such information is available to him before determining whether dismissal with prejudice is appropriate.”).

[9] Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012).

[10] See Yamamoto v. Bank of New York, 329 F.3d 1167, 1171, 1173 (9th Cir. 2003).

Merritt v. Countrywide Financial Corp.

Docket: 09-17678	Opinion Date: July 16, 2014
Judge: Berzon
Areas of Law: Banking, Real Estate & Property Law

Plaintiffs filed suit against Countrywide and others involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims with prejudice and plaintiffs appealed. The court held that plaintiffs can state a claim for rescission under the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., without pleading that they have tendered, or that they have the ability to tender, the value of their loan; only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission – and then only on a case-by-case basis; and, therefore, the court reversed the district court’s dismissal of plaintiffs’ rescission claim and remanded for further proceedings. The court held that, although the limitations period in the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. 2614, ordinarily runs from the date of the alleged RESPA violation, the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the violation; just as for TILA claims, district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration.

http://j.st/ZSzM
View Case On: Justia  Google Scholar

More…

Courthouse News-

A California couple did not have to show that they could pay back a home-equity loan before legally challenging an allegedly predatory Countrywide mortgage, the 9th Circuit ruled Wednesday.
     After the lender refused to let them rescind a more-than $700,000 home loan and home equity line of credit, David and Salma Merritt sued Countrywide Financial Corp under the Truth in Lending Act (TILA) in 2009
     The Merritts claimed that their Countrywide agent had lied to them in 2006 about the details of their loan, promising a relatively low monthly payment but then jacking it up nearly threefold days before closing. They said that the agent also had failed to inform them that the final $4,400 monthly mortgage payment for their Sunnyvale home was based on “teaser rate,” and that their payments would rise even higher in the coming years.
     Countrywide’s agent, the home’s seller and an appraiser also all faced allegations of having conspired to inflate the value of the home in violation of the Real Estate Settlement Practices Act (RESPA). The couple further argued that the agent had failed to provide proper loan documentation, and that the home’s owner had lied about being the “selling agent.”

[COURTHOUSE NEWS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

United States Court of Appeals
for the
Eleventh Circuit

______________________
MARLENE DORTA,
Appellant,

v.

WILMINGTON TRUST NATIONAL ASSOCIATION, as successor trustee to
CITIBANK NATIONAL ASSOCATION, AS TRUSTEE FOR BNC
MORTGAGE LOAN TRUST 2007-3, Appellee.
________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF
THE MIDDLE DISTRICT OF FLORIDA

MARLENE DORTA’S INITIAL BRIEF
__________________________________________________________________

PRELIMINARY STATEMENT

This is an appeal from a final order entered by the Hon. Wm. Terrell Hodges, Senior Judge, dismissing an amended complaint filed by Appellant, Marlene Dorta, against Appellee, Wilmington Trust National Association (Wilmington), which is the successor trustee to Citibank National Association (Citi) as the trustee for BNC Mortgage Loan Trust 2007-3. The case was originally filed in state circuit court in Marion County, Florida, but was subsequently removed by the named defendant in the original complaint, Citi, on the basis of diversity of citizenship. The operative complaint for the purposes of this appeal (the Amended Complaint) sought a final judgment declaring a mortgage held by Wilmington (the Mortgage), and encumbering real estate owned in fee simple by Dorta, to be unenforceable under the five year statute of limitations applicable to [a]n action to foreclose a mortgage set forth in section 95.11(2)(c) of the Florida Statutes.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Pulling away from sub-prime lending…the same lending that got these idiots into trouble in the first place and our asses rescuing them every-time. Folks, this is a good thing!

REUTERS-

JPMorgan Chase & Co, the second-largest U.S. mortgage lender, is backing away from making home loans to less creditworthy borrowers after losing faith in its ability to recover much money from foreclosing on homes, even with government guarantees.

The shift reflects a change in the way JPMorgan runs its mortgage business: while it used to regard collateral and U.S. government lending programs as key backstops to most of its loans, it now pays closer attention to the credit quality of borrowers. The bank wants to reduce the chances of having to foreclose on a loan, because it’s bad business.

“The cost to take a customer through the foreclosure process is just astronomical now,” Kevin Watters, chief executive of JPMorgan Chase’s residential mortgage banking business in New York, told Reuters in an interview.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Consumers Could Opt-In to Share Complaint Narrative in CFPB’s Public Database

WASHINGTON, D.C. — Today, the Consumer Financial Protection Bureau (CFPB) is proposing a new policy that would empower consumers to publicly voice their complaints about consumer financial products and services. When consumers submit a complaint to the CFPB, they would have the option to share their account of what happened in the CFPB’s public-facing Consumer Complaint Database. Publishing consumer narratives would provide important context to the complaint, help the public to detect specific trends in the market, aid consumer decision-making, and drive improved consumer service.

“The consumer experience shared in the narrative is the heart and soul of the complaint,” said CFPB Director Richard Cordray. “By publicly voicing their complaint, consumers can stand up for themselves and others who have experienced the same problem. There is power in their stories, and that power can be put in service to strengthen the foundation for consumers, responsible providers, and our economy as a whole.”

A copy of the proposed policy can be found at: http://files.consumerfinance.gov/f/201407_cfpb_proposed-policy_consumer-complaint-database.pdf

The CFPB began accepting complaints as soon as it opened its doors three years ago in July 2011. It currently accepts complaints on many consumer financial products, including credit cards, mortgages, bank accounts, private student loans, vehicle and other consumer loans, credit reporting, money transfers, debt collection, and payday loans.

When consumers submit a complaint to the Bureau, they fill in information such as who they are, who the complaint is against, and when it occurred. They are also given a text box to describe what happened and can attach documents to the complaint. The Bureau forwards the complaint to the company, allows the company to respond, gives the consumer a tracking number, and keeps the consumer updated on its status. To date, the Bureau has handled more than 400,000 complaints.

The CFPB’s Consumer Complaint Database is the nation’s largest public collection of consumer financial complaints. It includes basic, anonymous, individual-level information about the complaints received, including the date of submission, the consumer’s zip code, the relevant company, the product type, the issue the consumer is complaining about, and the company’s response.

Adding Narratives to the Consumer Complaint Database

Today, the Bureau is proposing to expand the database to include the consumer’s narrative description of what happened. In many ways, the narratives are the most insightful part of a complaint. They provide a first-hand account of the consumer’s experience and the problem they would like resolved. By giving consumers an option to publicly share their stories, the CFPB would greatly enhance the utility of the database, a platform designed to provide consumers with valuable information needed to make better financial choices for themselves and their families. The benefits of sharing the narratives include:

• Providing context to the complaint: While the current database captures the basics of a consumer’s complaint, the amount of context provided is limited. Complaints are grouped into dozens of high-level categories such as “billing disputes,” “transaction issues,” or “advertising and marketing.” Including the consumer’s narrative would increase the level of detail available to consumers, consumer groups, and companies in the market. For example, providing the complaint narratives within the mortgage category of “loan modification, collection, foreclosure,” would help determine if the consumer is being charged extra fees, the servicer has lost paperwork, or any number of other specific problems. Describing the circumstances can provide vital information about why the consumer believes they were harmed, and the impact that harm has had on the consumer.

• Spotlighting specific trends: Not only does the narrative provide context to the individual complaint, it provides context to the marketplace. Narratives allow the public to detect trends across the consumer experience and pinpoint problems. With narratives, it is possible to see if a specific issue is localized in a particular geographic area or with a specific company, or if it’s a practice used by companies across the product market. For example, reviewers may see that a number of consumers are starting to receive a $10 mystery charge from a particular company. Or they may see that a city is experiencing a rise in complaints about specific problems with mortgage loan modification denials. Or they may see that more and more companies are failing to meet their student loan servicing obligations. Without the narrative, the public cannot fully connect the dots.

• Helping consumers make informed decisions: Consumers often go online to research products before they make a decision to purchase. Including the details of a complaint would help inform consumers who are considering a particular product or service. Databases with narratives, such as the Consumer Product Safety Commission’s SaferProducts.gov or the National Highway Traffic Safety Administration’s SaferCar.gov, have helped inform consumers about a range of products from cribs to cars. The CFPB aims to empower consumers with the same kind of information. Reviewers could use the narrative to decide for themselves if the problems experienced by other consumers would stop them from purchasing the same product or service.

• Spurring competition based on consumer satisfaction: With these powerful stories readily available to the public, companies may have additional incentives to address potential shortcomings in their businesses that could have negative impacts on consumers. In the end, the narratives may encourage companies to improve the overall quality of their goods and services and more vigorously compete over good customer service, all of which has the potential to improve the functioning, transparency, and efficiency of the market.

Safeguards for Publishing Process

The CFPB’s proposed policy recognizes the importance of protecting consumers’ private information, ensuring the informed consent of any consumer who participates, and providing companies with an opportunity to respond. Today’s proposal establishes a number of important safeguards for a clear, fair, and transparent process, including:

• Consumers must opt-in: The CFPB would not publish the complaint narrative unless the consumer provides informed consent. This means that when consumers submit a complaint through consumerfinance.gov, they would have to affirmatively check a consent box to give the Bureau permission to publish their narrative. At least initially, only narratives submitted online would be available for the opt-in.

• No personal information will be shared: The Bureau would take all reasonable steps to remove personal information from the complaint to minimize the risk of someone being able to identify the consumer. This means complaints would be scrubbed of information such as names, telephone numbers, account numbers, Social Security numbers, and other direct identifiers.

• Companies can publish their response: Companies would be given the opportunity to post a written response that would appear next to the consumer’s story. In most cases, this response would appear at the same time as the consumer’s narrative so that reviewers can see both sides concurrently. This response would also be scrubbed of personal information.

• If a consumer decides at any time that he or she would like to withdraw consent to publish their narrative in the Consumer Complaint Database, he or she will have the ability to do so. The Bureau would honor this request as soon as possible and no later than three business days.

Today’s proposal builds on the safeguards the CFPB’s database already has in place. The CFPB confirms the commercial relationship between the consumer and company. Complaints are listed in the database only after the company responds to the complaint or after it has had the complaint for 15 days, whichever comes first.

Three Years of Consumer Response

The Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB, established the handling of consumer complaints as an integral part of the CFPB’s work. Today the CFPB released a snapshot overview of complaints handled since the Bureau opened on July 21, 2011 that includes aggregate data and analysis. The snapshot is available at: http://files.consumerfinance.gov/f/201407_cfpb_report_consumer-complaint-snapshot.pdf

This week, the CFPB is also releasing a series of videos of consumers who have been helped by the CFPB, some of them after submitting complaints. The “Everyone Has a Story” videos show real consumers who have run into trouble along their financial journey and have been helped by the CFPB. These stories will be available at: www.consumerfinance.gov/yourstory

###

Source: http://www.consumerfinance.gov

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

DENVER — Colorado Attorney General John Suthers today announced the filing of civil law enforcement actions against the two largest foreclosure law firms in Colorado.  In separate filings, the Attorney General’s Consumer Protection Section charged The Castle Law Group, its principals and affiliated foreclosure-related businesses, as well as Aronowitz & Mecklenburg, its principals and affiliated foreclosure-related businesses with violating the Colorado Consumer Protection Act, the Colorado Antitrust Act, and the Colorado Fair Debt Collection Practices Act. The Attorney General filed a simultaneous proposed Final Consent Judgment settling the case against the Aronowitz defendants.

“These lawsuits come at the end of a lengthy and exhaustive investigation into allegedly fraudulent billing practices by these firms that inflated foreclosure costs,” said Attorney General John Suthers. “These inflated costs were passed on to homeowners trying to save their homes from foreclosure, successful bidders for properties at foreclosure sales, and to investors and taxpayers. The facts uncovered by our investigation are very disturbing and, frankly, reflect poorly on the legal profession.”

The complaints, filed in Denver District Court, allege that these law firms, and their principals, conspired to charge fraudulent and inflated costs for posting of two statutorily-mandated notices on the homes of borrower’s facing foreclosure, and used affiliated companies to run up the costs of title products used in the foreclosures. The complaints also allege that these firms improperly and deceptively tacked on additional charges as “costs” for tasks already compensated by the maximum allowable fee paid to the law firm by the investor.

In the proposed Final Consent Judgment with the Aronowitz defendants, the law firm and its principals agree that, with the exception of some title business that they must operate at competitive market rates, to have no direct or indirect ownership interest in any law firm or other business engaged in foreclosure-related work in the State of Colorado for a period of nine years, and to pay the state $10 million in unjust enrichment, civil penalties, and the state’s costs and attorney fees. An additional $3 million in civil penalties is to be suspended pending compliance with the Final Consent Judgment. The court must approve that settlement before it becomes effective.

Investigations by the Colorado Attorney General’s Office of other Colorado foreclosure law firms and related businesses are ongoing.

#  #  #

.

Source: http://www.coloradoattorneygeneral.gov

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

REUTERS-

Bank of America (BAC.N) agreed to pay American International Group Inc (AIG.N) $650 million to settle long-running legal disputes over defective mortgage-backed securities sold in the run-up to the financial crisis.

The deal, which the parties announced early Wednesday, ends securities fraud litigation that the insurer brought against Bank of America. It also removes the biggest obstacle to the bank’s $8.5 billion settlement with investors in mortgage securities issued by Countrywide Financial, the subprime lender Bank of America acquired in 2008.

AIG will file notices dismissing its litigation accusing the bank of causing billions of dollars in losses by selling it shoddy mortgage securities. The litigation is pending in New York and California.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Just close these cartels down now…ALL. OF. THEM.

 

CNBC-

Bank of America has offered $13 billion to settle a probe into mortgage securities sold by the bank, the Wall Street Journal reported, citing people familiar with the matter.

The bank met U.S. Justice Department representatives on Tuesday, but no progress was made toward a final deal, the paper reported.

Bank of America had previously offered about $12 billion to settle the matter, including a portion to help struggling homeowners, while the Justice Department had suggested a $17 billion settlement, sources told Reuters earlier this month.

[CNBC]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

DSNEWS-

The Consumer Financial Protection Bureau (CFPB) continued its aggressive enforcement of consumer protection laws on Monday by filing a lawsuit against Georgia based debt collection law firm Frederick J. Hanna & Associates, for violations of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Fair Debt Collections Practices Act.

The Bureau, which refers to the firm as a “debt collection lawsuit mill” leveled accusations that the firm has churned out hundreds of thousands of lawsuits based on unsubstantiated evidence where, in some cases, the debt may not actually be owed.

“The Hanna firm relies on deception and faulty evidence to drag consumers to court and collect millions,” said CFPB Director Richard Cordray. “We believe they are taking advantage of consumers’ lack of legal expertise to intimidate them into paying debts they may not even owe. Today we are taking action to put a stop to these illegal debt collection practices.”

 read more… [DSNEWS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014

HENRI C. LAFRANCE
and MARIE LAFRANCE,
Appellants,

v.

US BANK NATIONAL ASSOCIATION, as trustee for CSFB Home Equity Pass-Through Certificates Series 2006-08,
Appellee.

No. 4D13-102
[July 9, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Senior Judge, Judge; L.T. Case No. 50-2009-CA012110AW.

S. Tracy Long of the Law Offices of S. Tracy Long, P.A., Boca Raton, for appellants.

Jessica Zagier Wallace of Carlton Fields, P.A., Miami, and Michael K. Winston, Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
PER CURIAM.

Appellants appeal a final summary judgment of mortgage foreclosure in favor of appellee. Because appellee failed to rebut appellants’ affirmative defense of lack of standing, we reverse.

Henri C. LaFrance and Marie LaFrance (“appellants”) executed a promissory note and mortgage on the subject property with lender Accredited Home Lenders, Inc. (“AHL”) in 2006. In 2009, US Bank National Association, as Trustee for CSFB Home Equity Pass-Through Certificates Series 2006-8 (“US Bank”), filed a mortgage foreclosure complaint against appellants as “the holder” of the note and mortgage. A copy of the unendorsed note was attached to the complaint. Appellants filed an answer with affirmative defenses, including that US Bank lacked standing.

US Bank moved for summary judgment. In support thereof, it filed
affidavits of representatives and records from two loan servicing providers.
Over three-and-a-half years after filing its complaint, US Bank also filed
the original note with an allonge bearing an undated endorsement in blank
signed by an “Assistant Secretary” of AHL, the original lender. The trial
court granted final summary judgment in favor of US Bank.
“The standard of review of an order granting summary judgment is de
novo.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172
(Fla. 4th DCA 2012). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

Appellants assert that the trial court erred in entering summary
judgment because there was a genuine issue of material fact as to whether
US Bank had standing to file their complaint. US Bank responds that the
“authenticated” business records of the servicing providers demonstrate
that it had standing.

“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose.” McLean, 79 So. 3d at 173. “Whether a party is the proper party
with standing to bring an action is a question of law to be reviewed de
novo.” Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14,
16 (Fla. 4th DCA 2012) (citation omitted). Standing to foreclose is
determined at the time the lawsuit is filed and can be demonstrated by the
filing of an assignment or the original note with a special endorsement in
favor of the plaintiff or a blank endorsement. McLean, 79 So. 3d at 173.

A “plaintiff’s lack of standing at the inception of the case is not a defect
that may be cured by the acquisition of standing after the case is filed”
and cannot be established “retroactively by acquiring standing to file a
lawsuit after the fact.” Id. (citation omitted).

Here, over three-and-a-half years after filing its complaint with a
photocopy of the unendorsed note, US Bank filed the original note
containing an undated endorsement in blank. The undated endorsement
fails to prove that US Bank was the owner or holder of the note at the time
of filing the complaint. Further, none of the affidavits filed in support of
summary judgment specifically assert that US Bank obtained possession
of the endorsed note prior to the date of the filing the complaint. Finally,
the loan servicing records provided by the affiants, without any
explanation of their significance, likewise failed to affirmatively prove that

US Bank was the owner and holder of the note prior to the filing of the complaint.

Because the affidavits and records filed in support of summary judgment do not support a finding that US Bank was the holder of the note with a proper endorsement in blank at the time the complaint was filed, a genuine issue of material fact exists as to whether US Bank had standing at the time of suit. On the record presented, it is possible that US Bank did not obtain standing to foreclose until after it initiated the lawsuit. Thus, the trial court erred in entering the final summary judgment of foreclosure in favor of US Bank. McLean, 79 So. 3d at 173; see also Zimmerman v. JPMorgan Chase Bank, Nat’l Assoc., 134 So. 3d 501, 502 (Fla. 4th DCA 2014); Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 254 (Fla. 2d DCA 2012). We therefore reverse the final judgment and remand for further proceedings.

Reversed and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Illinois Official Reports
Appellate Court

First Mortgage Co. v. Dina, 2014 IL App (2d) 130567
Appellate Court

Caption
FIRST MORTGAGE COMPANY, LLC, Plaintiff-Appellee, v.
DANIEL DINA and GRATZIELA DINA, Defendants-Appellants
(Unknown Owners and Nonrecord Claimants, Defendants).
District & No. Second District

Docket No. 2-13-0567

Filed
Modified upon
denial of rehearing
March 31, 2014
May 22, 2014

Held
(Note: This syllabus
constitutes no part of the
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)

The summary judgment for foreclosure entered for plaintiff mortgagee
and the order confirming the sale of defendants’ property were
vacated where plaintiff was not a licensed lender under the Residential
Mortgage License Act, and the mortgage was therefore unenforceable
and void as a matter of public policy.

Decision Under
Review

Appeal from the Circuit Court of Lake County, No. 10-CH-2877; the
Hon. Luis A. Berrones, Judge, presiding.

Judgment Vacated and remanded.

EXCERPT:

¶ 13 A court should grant summary judgment only “when the pleadings, depositions and
affidavits on file demonstrate that no genuine issue of material fact exists, and that the
moving party is entitled to judgment as a matter of law.” Forest Preserve District v. First
National Bank of Franklin Park, 2011 IL 110759, ¶ 62. Review of an order granting summary
judgment is de novo. Forest Preserve District, 2011 IL 110759, ¶ 62. Here, defendants are
correct in their License Act claim; that conclusion is determinative, so we need not consider
defendants’ other claims. A question of fact exists as to the mortgage lender’s License Act
status. Further, that fact is material. Although the issue of enforceability of a mortgage made
by an entity lacking a needed license has not arisen in Illinois, Illinois law relating to other
licenses and sister-state law concerning statutes analogous to the License Act make clear that
a License Act violation results in an unenforceable contract. Finally, because the contract
would be void as a matter of public policy, any technical flaw in the way defendants raised
the defense did not result in forfeiture of the defense.

[…]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Truth-OUT

It’s time to start helping the people, and stop helping Wall Street.

According to an agreement announced earlier today, big bank Citigroup will pay $7 billion to settle a Department of Justice investigation into that bank’s involvement with risky subprime mortgages.

The agreement stems from Citigroup’s role in the trading of subprime mortgage securities, which helped to cause the 2007 financial collapse and Great Recession.

Of the $7 billion total settlement, $4 billion will be in the form of a civil monetary payment to the Department of Justice, $500 million will go to state attorney’s general and the Federal Deposit Insurance Corporation, and an additional $2.5 billion will go towards “consumer relief.”

But make no mistake about it. This agreement is another win for the big banks.

[TRUTH-OUT]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Canton Rep-

One morning last October, Dana Novelli drove away from her home and headed to work, like she always does. She finished her day teaching at an Akron Public School, and drove back home, like she always does. Finally, she pulled into her driveway, like she always does.

That’s when this story takes a sharp turn.

Nothing she saw or experienced after that was familiar.

She was greeted by a large note on the front door of the raised ranch house she has called home for 28 years. She said she noticed a lock box on the door handle. She read the note: The home had been winterized — pipes and hot water tank drained; locks changed; the automatic garage door opener disconnected.

“I was hysterical …. sick, physically ill,” Novelli recalled.

It had to be a dream, or at least a mistake, she thought.

[CANTONREP]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Department of Justice

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

CMS INVESTMENT HOLDINGS, LLC,
Plaintiff,

v.

LAWRENCE E. CASTLE,
CAREN J. CASTLE,
LEO C. STAWIARSKI, JR.,
LEC HOLDINGS, LLC,
LCS COLORADO HOLDINGS, LLC
Defendants.

FACTUAL ALLEGATIONS

10. Beginning before 2007, Castle, Caren Castle, and Stawiarski owned,
directed, controlled, and/or were affiliated with various law firms operating in Colorado,
New Mexico, Arizona, Nevada, Wyoming, and Utah, including Castle Meinhold &
Stawiarski, LLC (now known as The Castle Law Group); CMS Legal Services, LLC;
Castle Meinhold & Stawiarski Legal Services, LLC; and Cooper Castle Law Firm, LLP,
referred to herein as the “Castle Law Firms”, whether collectively or individually. The
Castle Law Firms provided legal services in connection with foreclosure, bankruptcy,
and title processing, principally to mortgage lenders and mortgage servicing companies
in connection with loans secured by residences or other real property.

11. Defendants and the Castle Law Firms also owned, managed, and/or
operated entities that provided other, non-legal services to mortgage lenders and
mortgage servicing companies on a fee basis (the “Castle Services Businesses”) in
connection with, among other things, mortgage defaults, foreclosure processing, title
insurance and related services, title curative services, and real estate owned closing
services. The Castle Services Businesses supported, and provided their services
principally to, the Castle Law Firms and their clients. In 2006-2007, defendants desired
to find investors to help them capitalize the Castle Services Businesses for growth and
to allow defendants to partially cash out.

12. FTV Capital believed the Castle Services Businesses presented an
investment and growth opportunity. Plaintiff was organized and funded to make an
investment. Plaintiff agreed to make a substantial investment after months of due
diligence and negotiations with defendants.

13. An initial step in the investment transaction was the organization of CMS
Holdings Group, LLC, later renamed RP Holdings Group, LLC (under whichever name,
hereinafter “RPH”). Defendants sold the Castle Services Businesses to RPH in
exchange for Class A Preferred Units, Class B Common Units, and promissory notes in
RPH. Castle, Caren Castle, and Stawiarski controlled RPH.

[…]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Clouded Titles-

It never ceases to amaze me when I hear a real estate agent or investor tell me that they’re not worried about issues involving their planned or recent real estate purchase or sale because “the title insurance will cover it”. That is the biggest myth being propounded in this day and age, largely by the title companies. For decades, we’ve all been led to believe that title policies are “necessary evils” if we want to purchase real estate.

I had an investor contact me the other day to inquire about paying cash for a property as a rental investment. I asked whether they had done a search of the land records to see what the condition of title looked like, only to hear the stock answer, “Do I need to be worried? Won’t the title insurance take care of it if there’s a problem?”

If you can find me a case where a title insurance company actually paid out a claim or paid legal fees to represent an owner or investor where an unknown intervening assignee (called mesne assignees; that’s pronounced “mine”, which means “many”) came back years later, claiming an interest in the subject property and foreclosed on it, then I’ll print a retraction to this post and apologize to every single title company that complained about my post IN WRITING because title companies, like any other insurance company, look for reasons why NOT to pay out on a claim when an issue arises.

When it comes to dealing with the chain of title where MERS…

[CLOUDED TITLES]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

The Case: JAN KALICKI v. JPMORGAN CHASE BANK | California Court Order Re: JP Morgan Chase Executed and Recorded False Documentation Purporting to Transfer Ownership and that a Chase Executive Created a Fraudulent Document –

 

We need letters requesting publication by end of next week to help this case thru CA Supreme Ct citing similar actions!!! This is a big case, which is why it is unpublished and unavailable to cite by other cases.

Court data last updated: 07/13/2014 07:05 AM

Docket (Register of Actions)

Kalicki et al. v. JPMorgan Chase Bank, N.A.

Case Number D063508

 

Date	Description	Notes
02/28/2013	Notice of appeal lodged/received.	filed on February 22, 2013 by JPMorgan Chase Bank, N.A.
02/28/2013	Appellate package sent.
03/05/2013	Filing fee.
03/05/2013	Received default notice 8.121(a) designation not filed. Dated:	3/5/13
03/12/2013	Certificate of interested entities and parties filed by:	Defendant and Appellant: JPMorgan Chase Bank, N.A. Attorney: Ricardo Diego Navarrette
03/12/2013	Civil case information statement filed.	JPMorgan Chase Bank, N.A.
04/29/2013	Notice to reporter to prepare transcript.	CSR, Nuttal: 2/8/13
06/25/2013	Transcript fees paid.	Paid 6/10/13
06/28/2013	RECORD ON APPEAL FILED.************	Clerk’s and Reporter’s CT-7/1784pgs., RT-1/22pgs.
07/31/2013	Stipulation of extension of time filed:	APPELLANT’S OPENING BRIEF. Due on 09/23/2013 By 47 Day(s)
09/19/2013	Stipulation of extension of time filed:	APPELLANT’S OPENING BRIEF. Due on 10/03/2013 By 10 Day(s)
10/03/2013	Granted – extension of time.	APPELLANT’S OPENING BRIEF. Due on 10/21/2013 By 18 Day(s)
10/21/2013	APPELLANT’S OPENING BRIEF.	Defendant and Appellant: JPMorgan Chase Bank, N.A. Attorney: Ricardo Diego Navarrette     No Further Extensions Contemplated
10/28/2013	Change of contact information filed for:	Mohammed Kent Ghods old address 1: 2100 N. Broadway, Suite 101 new address 1: 2100 N. Broadway, Suite 210
01/02/2014	RESPONDENT’S BRIEF.	Plaintiff and Respondent: Jan Kalicki Attorney: Mohammed Kent GhodsPlaintiff and Respondent: Rosalind Jones-Kalicki     Due 76 days after AOB filed per stipulation
01/02/2014	Oral argument waiver notice sent.	1/13/14
01/13/2014	Request for oral argument filed by:	R/15 (Conditional)
01/13/2014	Request for oral argument filed by:	A/15
01/02/2014	Certificate of interested entities and parties filed by:	Plaintiff and Respondent: Jan Kalicki Attorney: Mohammed Kent GhodsPlaintiff and Respondent: Rosalind Jones-Kalicki     CIP in Brief
01/21/2014	Stipulation of extension of time filed:	APPELLANT’S REPLY BRIEF. Due on 02/05/2014 By 14 Day(s)
02/06/2014	APPELLANT’S REPLY BRIEF.	Defendant and Appellant: JPMorgan Chase Bank, N.A. Attorney: Ricardo Diego Navarrette
02/06/2014	CASE FULLY BRIEFED.
04/02/2014	**CALENDAR NOTICE SENT** Calendar Date:	Friday, May 16, 2014 at l:30 p.m.
05/16/2014	Cause argued and submitted.
06/30/2014	Opinion filed.	(Signed Unpublished)

Attached is a sample Letter provided by a reader–

Attached please find a template letter for requesting publication.

Note copies have to be mailed to all parties named on the Proof of
Service. Modify it slightly to address your case, if any, or the
public interest of clear title to residential properties in California
and its effect of marketability of real property.

Filing can be done thru internet after you print your letter to PDF
(PDFill has excellent FREE PDF tools). Use this link -
http://www.courts.ca.gov/4dca-efile.htm

Rename your PDF per the instructions (keeping it as a .PDF file) and
upload it to the court.

And thank you!! Deadline is Friday the 18th.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

WFLA-

Karl and Vicktoria Hanson thought their foreclosure nightmare was long over. It may be just beginning.

The Hansons say they thought they lost their Plant City home to foreclosure and that the bank owned it now. They moved out years ago and say what they believed to be the final foreclosure document arrived a year ago.

They recently applied for another loan, and when they pulled their credit report, they leaned they still own their old house after all. They found they owe the mortgage to a company called Green Tree Servicing LLC.

“We were absolutely stunned,” Karl Hanson said. “We had never heard of Green Tree Servicing.”

[WFLA]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

NYT-

Citigroup and the Justice Department are nearing a deal that could cost the bank roughly $7 billion to settle a civil investigation into the sale of mortgage investments, people briefed on the matter said on Tuesday.

The settlement, which is expected to be announced within the next week, caps months of negotiations that grew so tense in June that the Justice Department threatened to sue if the bank did not agree to the government’s proposed penalty. The deal, which would be made up of a monetary penalty and relief for homeowners, would remove a huge legal obstacle that has been weighing on the bank’s share price and casting a shadow over its future.

At one point in the talks, the government demanded that Citigroup pay $10 billion. While the settlement will fall short of that demand, the bank will still pay more than once expected.

[NEW YORK TIMES]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Consumerist-

When the Consumer Financial Protection Bureau implemented rules to protect consumers from getting caught in mortgage “debt traps” earlier this year, the regulators may have missed one section of not-so-typical borrowers: consumers who inherit a family member’s home – mortgage and all.

In an attempt to make things easier on surviving family members when a homeowner dies, the CFPB issued an interpretive rule that would allow survivors to be added to outstanding mortgages without the fear of losing their home because of newly enacted rules.

The interpretive rule clarifies that when a borrower dies, the name of the borrower’s heir generally may be added to the mortgage without triggering the Ability-to-Repay rule.

[CONSUMERIST]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

New Times-

Rick Scott seems to be a big target when it comes to the majority of Floridians fed up with the way things are run down here.

Will that vitriol be enough to oust Scott in the election come November? Time (and the ballots) will tell.

But another key figure is also running for re-election come November. Someone who has done just as much damage to Florida as Scott has, albeit with a more pretty face.

Officially filed for re-elect this morning-looking forward to continuing working hard and serving the people of Florida! #sayfie— Pam Bondi (@PamBondi) July 1, 2013

Florida Attorney General Pam Bondi is flat-out the worst this state has ever seen, and she could very well win re-election due to people not knowing enough about her dirty deeds.

Here now are eight reasons why Pam Bondi is the worst AG Florida has ever had:

continue to NEW TIMES

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Oh…my…I’ve read that there is about $111 BILLION in HELOC’s coming due on or about 2017!

Mortgage Daily News-

In July 1776, the estimated number of people living in the newly independent nation was 2.5 million. (Nowadays, this is approximately the number of people on the freeway in Atlanta or Seattle during rush hour.) The nation’s estimated population on this July Fourth is over 318 million. So we should all invest our money in anything that appreciates with population growth, right?

California has gobs of people, and as California goes, so goes the nation, right? The California State Assembly approved SB 1459. The bill is now enrolled and sent to the governor for signature or veto. The California Mortgage Bankers Association “has vigorously supported the legislation, which will allow use of the Uniform State Test (UST) for California MLOs. The bill would also modify hourly education requirements, requiring MLOs to get 2 hours of state-focused pre-license education (as part of the 20 hour requirement) and 1 hour of state-focused continuing education (as part of the 8 hour requirement).”

(This reminded me of a note I received a while back from an LO at a large bank. “Are any of the guys emailing you about bank registration versus LO licensing actually producers? I was licensed in more states than most, and it means zilch. Realtors don’t care; clients don’t care. Everyone wants the same thing which is to hit contract dates without excuses. Like everyone else I crammed before the test, bought some practice exams, did some forgettable education, passed the tests and the next day I quickly forgot it all then went back to originating. The same goes for Continuing ED; I click through a bunch of screens and forgot everything a few hours later. At my bank they flood us with training – do the vast majority of LOs remember the minutiae? Big producers will produce regardless of if they are licensed or registered and their referral sources don’t care.

[MORTGAGE DAILY NEWS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.