April, 2016 - FORECLOSURE FRAUD

Archive | April, 2016

HSBC v Joseph T Buset || OCWEN Guillotined in Florida Bench Trial and then “rapped” for oh so “filthy hands”. ||| ORDER GRANTING DEFENDANT’S MOTION FOR INVOLUNTARY DISMISSAL FOR ** U N C L E A N – H A N D S ** ….. AND ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE ** SANCTIONED FOR FRAUD UPON THE COURT **

HSBC v Joseph T Buset || OCWEN Guillotined in Florida Bench Trial and then “rapped” for oh so “filthy hands”. ||| ORDER GRANTING DEFENDANT’S MOTION FOR INVOLUNTARY DISMISSAL FOR ** U N C L E A N – H A N D S ** ….. AND ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE ** SANCTIONED FOR FRAUD UPON THE COURT **

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR MIAMI DADE COUNTY, FLORIDA

HSBC BANK USA, NATIONAL
ASSOCIATION, AS TRUSTEE FR
FREMONT HOME LOAN TRUST 2005-
B,MORTGAGE-BACKED
CERTIFICATES, SERIES 2005-B,
Plaintiff,

vs.
JOSEPH T. BUSET A/K/A JOSEPH
THOMAS BUSET AND MARGARET
BUSET A/K/A MARGARET JEAN
BUSET, et. al.,
Defendant.
__________________________/

GENERAL JURISDICTION DIVISION

CASE NO.: 12-38811 CA 01
JUDGE: BEATRICE BUTCHKO

ORDER GRANTING DEFENDANT’S MOTION FOR INVOLUNTARY DISMISSAL
FOR UNCLEAN HANDS AND LACK OF SUBSTANTIAL COMPETENT EVIDENCE

AND

ORDER TO SHOW CAUSE WHY PLAINTIFF SHOULD NOT BE SANCTIONED
FOR FRAUD UPON THE COURT UNDER
THE COURT’S INHERENT CONTEMPT POWERS

THIS CAUSE having come before the Court for Trial on March 17 and 18, 2016, and the
Court having reviewed Defendant’s Motion for Sanctions Under the Court’s Inherent Contempt
Powers for Fraud Upon the Court, and being otherwise advised in the premises, it is hereupon:
ORDERED AND ADJUDGED that Defendant’s Motion for Involuntary Dismissal after
Trial is GRANTED for the following reasons:

I. The Court Finds Unclean Hands In Plaintiff’s Prosecution of This Action
That Bars the Equitable Relief of Foreclosure

1. The Florida Supreme Court has long recognized the maxim that in equitable
actions such as this foreclosure, “he who comes into equity must come with clean hands.” Bush
v. Baker, 83 So. 704 (Fla. 1920).

2. In Bush, the Florida Supreme Court instructed that the “principal or policy of the
law in withholding relief from a complaint because of ‘unclean hands’ is punitive in nature.”

3. The Court finds several examples of Plaintiff’s unclean hands that mandate
punitive action that affirmatively bars plaintiff’s entitlement to the equitable relief of foreclosure.

A. Unclean Hands Involving the Specific Endorsement and Assignment
of Mortgage That Both Reflect a Transaction that Never Happened

4. Plaintiff’s trial witness, Sherry Keeley, an Ocwen employee, gave extensive
testimony regarding the Assignment of Mortgage (AOM) that Ocwen prepared in June of 2012
and recorded in the Public Records of Miami-Dade County in July of 2012.

5. On its face, this AOM purports to document a sale of Defendant’s loan from
Mortgage Electronic Registration Systems, Inc (“MERS”) as nominee for the originator,
Freemont Investment and Loan, directly to the securitized trust identified as the plaintiff.

6. Ms. Keeley testified that Ocwen prepared this assignment in preparation for filing
the foreclosure complaint. The Ocwen employee identified the originator of the promissory note
and prepared the AOM to reflect a transfer from MERS, as Nominee of that originator to the
same party as Ocwen intended to name as Plaintiff in the foreclosure action.

7. The Court takes judicial notice that on July 25, 2008, Freemont Investment and
Loan (“Freemont”) entered into a voluntary liquidation and closing which did not result in a new
institution. https://www5.fdic.gov/idasp/confirmation_outside.asp?inCert1=25653. As such, the
status of MERS as nominee for Freemont ended when Freemont closed on July 25, 2008, which
renders the AOM created in 2012 void ab initio.

8. Ms. Keeley further testified the Pooling and Servicing Agreement for this
securitized trust backed up the veracity of the AOM. However, Ms. Keeley later conceded that,
according to the PSA, the chain of title for any loan within this trust went as follows:

[…]

 

<SNIPETS>

I. The Court Finds Unclean Hands In Plaintiff’s Prosecution of This Action
 
That Bars the Equitable Relief of Foreclosure
 
 
A. Unclean Hands Involving the Specific Endorsement and Assignment
 
of Mortgage That Both Reflect a Transaction that Never Happened
 
 
B. Unclean Hands For Violating the Court’s Discovery Order Despite
 
Plaintiff’s Representations That It Fully Complied With That Order
 
 
 
II. Defendant’s Motion For Involuntary Dismissal Is Also Granted For
 
Plaintiff’s Failure to Prove Damages, Conditions Precedent, and Standing
 
 
A. The Legal Fiction That Ocwen’s Loan Boarding Process In This Case
 
Verifies The Accuracy, Reliability of Correctness of the Prior
 
Servicer’s Records
 
 
B. Plaintiff’s Failure To Lay A Predicate For Prior Servicer Litton’s
 
Breach or Default Letter
 
 
C. Plaintiff Failed To Prove Standing By Virtue of an Endorsement and
 
an Assignment of Mortgage Created For Purposes of Litigation That
 
Both Miss a Key Line in the Title of Ownership, namely the Depositor
 
 
 
III. The Promissory Note Is Not A Negotiable Instrument
 

50. The Court gives great weight as the trier of fact to the testimony of Defendant’s
expert witness, Kathleen Cully. Ms. Cully is a Yale Law School graduate that worked her entire career in structured finance transactions since 1985. She was extremely well versed in the Uniform Commercial Code. Among many other tasks and accomplishments, Ms. Cully testified that she led the Citigroup team that created the first pooling and servicing agreement ever. She led Citigroup’s Global Securitization strategy. The Court finds Ms. Cully eminently qualified as
an expert witness in the area of securitized transactions and their interplay with the Model Uniform Commercial Code.

58. This Court does not address the provision described in the Nunez opinion, instead grounding this decision on a myriad of other provisions of the Mortgage establishing the Note is subject to and governed by the Mortgage, rendering the note a non-negotiable instrument.

 
 . . . .
 
 
82. The Court grants Defendants’ Motion for Involuntary Dismissal and enters
 
judgment in favor of the Defendants who shall go forth without day.
 
83. The Court reserves jurisdiction to award prevailing party attorney’s fees and
 
to impose sanctions against Plaintiff under the inherent contempt powers of the court for fraud on the court, and such other orders necessary to fully adjudicate these issues.
 
84. Plaintiff is ordered to produce a corporate representative with most
 
knowledge regarding its efforts to comply with the discovery order dated April 27, 2015, for deposition at the offices of Defendant’s counsel within 15 days from the entry of this  order.
 
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 04/26/16.
 

 

Inline image 1

 

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CHICAGO QUIET TITLE WORKSHOP: THE REAL WAY TO CELEBRATE MEMORIAL DAY WEEKEND!

CHICAGO QUIET TITLE WORKSHOP: THE REAL WAY TO CELEBRATE MEMORIAL DAY WEEKEND!

BREAKING NEWS!: 

The next planned Quiet Title Workshop is slated for Saturday and Sunday, May 28th and 29th, 2016 in Chicago at the Radisson O’Hare Airport Hotel in Des Plaines, Illinois from 9 a.m.to 5 p.m. both days.

The planning of this event still gives you time to take morning flights out to spend with your families on Memorial Day, despite the fact that many Chicagoans are expect to attend this event.

All attendees to this Workshop will receive a FREE COPY of The Quiet Title War Manual, along with a 16GB USB flash drive which is loaded with seven years of research on quiet title actions and foreclosure defense information and case law you can share with your foreclosure defense attorney!  We even anticipate that a few foreclosure defense attorneys will be attending this event, so it would open the doors for great networking possibilities for you, the student of quiet title.

Education is important, especially when it comes to legal issues.  No matter what time of the year, if you are in property distress and/or facing foreclosure, you owe it to yourself to invest in your future by attending this workshop!

Here is the flyer for the Chicago Quiet Title Workshop: QT WORKSHOP FLYER_CHICAGO_2016

Here is the registration form for the Quiet Title Workshop: QT WORKSHOP 2016_CHICAGO_REGISTRATION FORM

We’ve also included a syllabus containing the schedule of topics discussed by myself and Quiet Title Superlawyer Al West: CHICAGO QT WORKSHOP SYLLABUS

There are a limited number of seats to this event.  Because the workshop is slightly more than thirty (30) days away, we suggest that you plan your schedule for that weekend accordingly and make plans to attend this invaluable workshop! 

Homeowners: The information you learn in this workshop will make you more knowledgeable about the subject matter than most attorneys who dabble in real property law.

Investors: The information we offer in this workshop is designed to help you avoid tens of thousands of dollars in legal fees in investing in or defending your already-acquired investment properties.

Paralegals: Who has more of a handle on actual case files than you?  The step-by-step procedural handouts we offer in this class will help you to be the best paralegal you can be!

Attorneys: Quiet title actions, when properly and timely filed, can be very effective when done properly.  Attorney Al West shares with you the latest strategies that he has developed to secure quiet title wins for his clients!  Put aside any preconceived notions, because we know you haven’t heard of a “C & E” … and this is one strategy in winning a quiet title action you don’t want to be without!  This will save you time and expense in winning a quiet title action!

What a unique holiday plan!  

Again, despite the fact it’s a holiday weekend, we must take pause to recognize that Memorial Day does not just reflect on the service and the sacrifices that our veteran’s made, it also commemorates the losses we have suffered as Americans in the wake of foreclosures that have swept this country and continue to plague our very existence.

Visit the Clouded Titles Website and register for this once-only area event!  When you book your hotel sleeping room, ask about our Quiet Title Workshop sleeping room group rate, accompanied by a FREE full breakfast each day of the event for those booking sleeping rooms at the Radisson!

Al West and I will not be back in Chicago again, so this would be the time to plan your picnics and other celebrations around the Quiet Title Workshop!  Become empowered!   Learn to effectively fight the good fight!

Will you be proactive or reactive?

Millions of Americans have simply given up fighting a foreclosure of their home.  They didn’t plan for this eventuality.  They were promised something that eventually they could make good on: a mortgage loan that was unaffordable and at best, predatory in nature.  When push comes to shove, we believe that your original note and mortgage were digitally uploaded into the MERS® System … and then shredded!   Most Americans do not realize this!

The Illinois courts (as well as courts in other areas of the country) appear to NOT be homeowner friendly because desperate, uneducated homeowners don’t understand what is required to defend their properties.  Instead of fighting the right issues in a timely manner (proactive), they wait until it’s too late and cling to whatever ideas they happen to glean from the Internet (reactive) in an attempt to save their homes.  A majority (85%) of them run away.  This is what the banks want!   Most flee their situation because of a lack of education!

If you’re still paying on your mortgage in a timely manner, this workshop is for you, especially if you have a MERS-originated mortgage!  We’ll give you the educational tools you need to do your research to “fight the good fight”!

Please also understand that Al West, Esq. is a sincere friend of the homeowner.  He has won dozens of quiet title actions and has taken time out of his busy schedule to educate homeowners to “get ugly”!  His time is extremely valuable, so it should come as no surprise that our 2016 tour is a highly precious commodity!   Technically, you have less than 30 days to decide what is important to your future.  Make good choices!

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



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Yvanova STRIKES Thrice, well ACTUALLY it was SEVEN . . . KESHTGAR v. U.S. BANK : : : MENDOZA v. JPMORGAN CHASE BANK : : : CASTRO v. INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR21 | V A C A T E D . . . “…with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. …”

Yvanova STRIKES Thrice, well ACTUALLY it was SEVEN . . . KESHTGAR v. U.S. BANK : : : MENDOZA v. JPMORGAN CHASE BANK : : : CASTRO v. INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR21 | V A C A T E D . . . “…with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. …”

http://www.gmsr.com/news_watch.cfm

#14-118 Keshtgar v. U.S. Bank, N.A., S220012.  (B246193; 226 Cal.App.4th 1201, mod. 227 Cal.App.4th 321c; San Luis Obispo County Superior Court; CV120282.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973 (#14-100), which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?
Review granted/briefing deferred 10/01/2014
See the Petition for Review
See the Court of Appeal opinion

#14-131 Mendoza v. JP Morgan Chase Bank, N.A., S220675.  (C071882; 228 Cal.App.4th 1020; San Joaquin County Superior Court; 39201100267960CUORSTK.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court ordered briefing deferred pending decision inYvanova v. New Century Mortgage Corp., S218973 (#14-100), which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?
Review granted/briefing deferred 11/12/2014
See the Petition for Review
See the Court of Appeal opinion

#15-164 Castro v. Indymac Indx Mortgage Loan Trust 2005-AR21, S227876. (E061030, E061704; nonpublished opinion; Riverside County Superior Court;INC1302920.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973 (#14-100), which presents the following issue: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?
Review granted/briefing deferred 09/16/2015
See the Court of Appeal opinion

Supreme Court

Court data last updated: 04/28/2016 05:54 AM

Docket (Register of Actions)

KESHTGAR v. U.S. BANK                          
VACATED
Case Number S220012

 

Date Description Notes
04/27/2016 Transferred to CA 2/6 after hold     The above-captioned matter is transferred to the Court of Appeal, Second Appellate District, Division Six, with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919. (Cal. Rules of Court, rule 8.528(d).) Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.

 

Court data last updated: 04/28/2016 05:54 AM

Docket (Register of Actions)

MENDOZA v. JPMORGAN CHASE BANK
VACATED
Case Number S220675
Date Description Notes
04/27/2016 Transferred to CA 3 after hold     The above-captioned matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919. (Cal. Rules of Court, rule 8.528(d).) Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.

 

Court data last updated: 04/28/2016 05:54 AM

Docket (Register of Actions)

CASTRO v. INDYMAC INDX MORTGAGE LOAN TRUST 2005-AR21
VACATED
Case Number S227876

 

Date Description Notes
04/27/2016 Transferred to CA 4/2 after hold     The above-captioned matter is transferred to the Court of Appeal, Fourth Appellate District, Division Two, with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919. (Cal. Rules of Court, rule 8.528(d).) Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.

_____________________________________

Inline image 3

Comment on California Supreme Court Rules in Yvanova, “The borrower owes money NOT TO THE WORLD at large but to a particular person or institution.” by Kalifornia 

There are an additional SEVEN foreclosure-related cases in the lineup before the Cal Supreme Court wherein the briefing was deferred until the opinion on Yvanova was issued. Consequently, there will be an eventual stream of rulings extending beyond the issues in Yvanonva. {All these cases were DISPOSED of as of Wednesday 4/27/2016  QUOTE: “…with directions to vacate its{their} decision{s} and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. …”;  with the exception of “Boyce” which was unfortunately “Dismissed”.  )

Keshtgar v. U.S. Bank, N.A., S220012. (B246193; 226 Cal.App.4th 1201, mod. 227 Cal.App.4th 321c; San Luis Obispo County Superior Court; CV120282.)

Mendoza v. JP Morgan Chase Bank, N.A., S220675. (C071882; 228 Cal.App.4th 1020; San Joaquin County Superior Court; 39201100267960CUORSTK.)

DISMISSED   Boyce v. T.D. Service Co., S226267. (B255958; 235 Cal.App.4th 429; Santa Barbara County Superior Court; 1438504.)

Castro v. Indymac Indx Mortgage Loan Trust 2005-AR21, S227876. (E061030, E061704; nonpublished opinion; Riverside County Superior Court;INC1302920.)

Flannigan v. Onuldo, S229113. (D067447; nonpublished opinion; Riverside County Superior Court; RIC1304784.)

Gehron v. Nicholas, S231459. (E061855; nonpublished opinion; Riverside County Superior Court; INC1302638.)

Gehron v. Bank of America N.T., S231447. (E060701; nonpublished opinion; Riverside County Superior Court; INC1302638.)

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



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Saterbak v. JPMorgan Chase Bank | PETITION FOR REVIEW | The Saterbak opinion, if it stands, will create confusion because, in effect, it permits a void assignment to authorize a foreclosure when this Court held that a void contract had no legal effect at all.

Saterbak v. JPMorgan Chase Bank | PETITION FOR REVIEW | The Saterbak opinion, if it stands, will create confusion because, in effect, it permits a void assignment to authorize a foreclosure when this Court held that a void contract had no legal effect at all.

SUPREME COURT CASE NO.
COURT OF APPEAL CASE NO. D066636

IN THE SUPREME COURT
OF CALIFORNIA

LAURA SATERBAK,
Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A., et al.,
Defendants and Respondents.

After a Published Opinion by the Court of Appeal
Fourth Appellate District, Division One

Case No. D066636

PETITION FOR REVIEW

TABLE OF CONTENTS         Page
GLOSSARY OF TERMS          6
ISSUE PRESENTED                7
WHY REVIEW SHOULD BE GRANTED        7
STATEMENT OF THE CASE        9
A. The First Amended Complaint and the demurrer.  9
B. The Court of Appeal decisions  12
C. This petition for review is timely 14
ARGUMENT   14
A. This Court should grant review to establish a
uniform set of rules to govern both preforeclosure
and postforeclosure cases. 14
B. Review should be granted to resolve the conflict
between Gomes v. Countrywide and Saterbak. 17
C. Review is necessary because the court of appeal
opinion is inconsistent with Yvanova’s ruling that a
void assignment can never have any legal effect. 19
D. Contrary to what the court of appeal believed, this
Court did not decide that its Yvanova holdings could
never apply to a preforeclosure lawsuit. 21
E. California public policy, as expressed in the
foreclosure statutes, allows a pre-foreclosure lawsuit. 22

CONCLUSION 25
CERTIFICATE OF WORD COUNT 26
PROOF OF SERVICE 27

 

[…]

Second, as this Court held in Yvanova, 62 Cal.4th at 929, a
void assignment is void from the beginning. It does not change
from voidable to void merely because a foreclosure sale occurs.
The Saterbak opinion, if it stands, will create confusion because,
in effect, it permits a void assignment to authorize a foreclosure
when this Court held that a void contract had no legal effect at
all. Yvanova, 62 Cal.4th at 929.

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CONSUMER FINANCIAL PROTECTION BUREAU MONTHLY COMPLAINT SNAPSHOT EXAMINES MORTGAGE COMPLAINTS

CONSUMER FINANCIAL PROTECTION BUREAU MONTHLY COMPLAINT SNAPSHOT EXAMINES MORTGAGE COMPLAINTS

FOR IMMEDIATE RELEASE:
April 26, 2016

CONTACT:
Office of Communications
Tel: (202) 435-7170

CONSUMER FINANCIAL PROTECTION BUREAU MONTHLY COMPLAINT SNAPSHOT EXAMINES MORTGAGE COMPLAINTS
Report Also Includes Look at Consumer Complaints from California

WASHINGTON, D.C. – Today, the Consumer Financial Protection Bureau (CFPB) released its latest monthly consumer complaint snapshot, highlighting consumer complaints related to mortgages. The report shows that consumers continue to encounter servicing problems when they are unable to make payments. This month’s snapshot also highlights trends seen in complaints coming from California. As of April 1, 2016, the Bureau has handled approximately 859,900 complaints across all products.

“Today’s report shows that consumers are still running into too many dead ends and obstacles in resolving issues with their mortgage servicer,” said CFPB Director Richard Cordray. “The Bureau will continue to press to make sure that people can get the right information and the timely help they need.”

The Monthly Complaint Report can be found at: http://files.consumerfinance.gov/f/documents/Monthly_Complaint_Report_-_April_2016.pdf

Product Spotlight: Mortgages
Valued at over $10 trillion, the U.S. mortgage market represents the largest consumer financial market in the world. Over the past two and a half years, the CFPB has established new protections requiring lenders to determine that consumers can afford to repay their mortgages, and has introduced new consumer-friendly forms to help people shop for mortgages and avoid surprises at the closing table. As of April 1, 2016 the Bureau had received approximately 223,100 mortgage complaints. Some of the findings in the snapshot include:

  • Problems when consumers are unable to pay: The majority of complaints about mortgages—51 percent—submitted to the Bureau had to do with problems consumers faced when they had difficulty making payments. Consumers complained of prolonged loss mitigation review processes in which the same documentation was repeatedly requested by their servicer. Consumers also complained that they received conflicting and confusing foreclosure notifications during the loss mitigation review process.
  • Confusion over loan transfers: Another common complaint submitted by many consumers had to do with the lack of information when their loan was transferred from one servicer to another. Consumers complained that they were often not properly informed that their loan had been transferred. As a result, payments made to either the prior or current servicer around the time of the transfer were not applied to their account.
  • Communication issues with servicers: A frequent consumer complaint submitted to the Bureau had to do with difficulty communicating with loan servicers. Consumers complained that when they were able to speak with their servicer, the information they received was often confusing and did not provide the clarifications they were hoping for. Consumers stated that these customer service issues led to delays in obtaining needed resolutions for their mortgage loans.
  • Most-complained-about mortgage companies: The four companies about which the CFPB received the most mortgage-related complaints between November 2015 to January 2016 were Wells Fargo, Bank of America, Ocwen, and Nationstar Mortgage.

National Complaint Overview
As of April 1, 2016, the CFPB has handled 859,900 complaints nationally. Some of the highlights from the statistics in this month’s snapshot report include:

  • Complaint volume: For the month of March 2016, consumers submitted 8,243 debt collection complaints to the Bureau. That figure accounted for over 30 percent of all complaints submitted to the Bureau in March 2016.
  • Product trends: Complaints submitted relating to credit reporting rose 35 percent between February and March of 2016. During the month of March, there were 3,321 credit reporting complaints submitted to the Bureau.
  • State information: In terms of total complaints per 100,000 people, the District of Columbia, Maryland, Delaware, and Florida had the highest concentration of complaints submitted.
  • Most-complained-about companies: The top three companies about which the CFPB received the most complaints between November 2015 and January 2016 were Equifax, Experian, and TransUnion.

Geographic Spotlight: California
The CFPB highlighted California for the monthly geographic spotlight. As of April 1, 2016, consumers in California have submitted about 118,900 of the 859,900 complaints the CFPB has handled. Complaints from the two largest metro areas in California – Los Angeles and San Francisco – accounted for nearly 50 percent of the complaints submitted from the state. Findings from the California complaints include:

  • Mortgages are the most-complained-about product: Consumer complaints from California were more likely to be about mortgages than consumer complaints nationally. While mortgage complaints account for 26 percent of all complaints submitted to the Bureau nationally, they accounted for 32 percent of complaints submitted from consumers in California.
  • California debt collection complaints are lower than the national average: Consumer complaints from California were less likely to be about debt collection—24 percent of total complaints submitted—than consumer complaints nationally—26 percent of total complaints submitted nationally.
  • Most-complained-about companies: Bank of America, Wells Fargo, and Experian were the three most-complained-about companies from consumers in California.

The Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB, established consumer complaint handling as an integral part of the CFPB’s work. The CFPB began accepting complaints as soon as it opened its doors in July 2011. It currently accepts complaints on many consumer financial products, including credit cards, mortgages, bank accounts and services, private student loans, vehicle and other consumer loans, credit reporting, money transfers, debt collection, and payday loans.

In June 2012, the CFPB launched its Consumer Complaint Database, which is the nation’s largest public collection of consumer financial complaints. When consumers submit a complaint they have the option to share publicly their explanation of what happened. For more individual-level complaint data and to read consumers’ experiences, visit the Consumer Complaint Database at: www.consumerfinance.gov/complaintdatabase/.

Company-level complaint data in the report uses a three-month rolling average of complaints sent by the Bureau to companies for response. This data lags other complaint data in this report by two months to reflect that companies are expected to close all but the most complicated complaints within 60 days. After the CFPB forwards a complaint to a company, the company also has 15 days to respond, confirming a commercial relationship with the consumer. Company-level information should be considered in the context of company size.

To submit a complaint, consumers can:

  • Go online at www.consumerfinance.gov/complaint/
  • Call the toll-free phone number at 1-855-411-CFPB (2372) or TTY/TDD phone number at 1-855-729-CFPB (2372)
  • Fax the CFPB at 1-855-237-2392
  • Mail a letter to: Consumer Financial Protection Bureau, P.O. Box 4503, Iowa City, Iowa 52244
  • Additionally, consumers can get clear, unbiased answers to their questions at Ask CFPB

###

The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit consumerfinance.gov.

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



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Caballero v. US Bank National Association | FL 2nd DCA – Attached to the original note was an allonge, but it was not the same allonge that had been attached to the complaint. This new allonge was undated and bore a blank endorsement from EMAX Financial Group, LLC

Caballero v. US Bank National Association | FL 2nd DCA – Attached to the original note was an allonge, but it was not the same allonge that had been attached to the complaint. This new allonge was undated and bore a blank endorsement from EMAX Financial Group, LLC

OMAR T. CABALLERO and AUDREY K. CABALLERO, Appellants,
v.
U.S. BANK NATIONAL ASSOCIATION as trustee for RASC 2006-EMX7, and WESTCHASE COMMUNITY ASSOCIATION, INC., Appellees.

Case No. 2D15-266.
District Court of Appeal of Florida, Second District.

Opinion filed April 20, 2016.
Elizabeth L. Hapner of Hapner Law, Tampa, for Appellants.

Linda M. Reck of Greenberg Traurig, P.A., Orlando, and Michele L. Stocker of Greenberg Traurig, P.A., Fort Lauderdale, for Appellee U.S. Bank National Association as Trustee for RASC 2006-EMX7.

No appearance for remaining Appellee.

KHOUZAM, Judge.

Omar T. Caballero and Audrey K. Caballero appeal the final summary judgment of foreclosure entered in favor of U.S. Bank National Association as Trustee for RASC 2006-EMX7. The Caballeros argue that U.S. Bank failed to prove that it had standing to foreclose because it failed to show that the note was validly transferred to it. We agree that, on the record before us, there was insufficient evidence to show U.S. Bank’s standing. Therefore, we must reverse and remand for further proceedings. We decline to comment on the remaining issues raised by the Caballeros.

U.S. Bank filed the foreclosure complaint on October 27, 2011. Attached to the complaint was a copy of the note and mortgage dated June 5, 2006, and identifying the lender as Mortgage Lenders Network USA, Inc. The note bore a special endorsement in favor of EMAX Financial Group, LLC. Also attached was a July 20, 2006, allonge transferring the note from Mortgage Lenders Network USA, Inc., to Residential Funding Corporation and then by special endorsement from Residential Funding Corporation to U.S. Bank National Association as Trustee. Finally, attached to the complaint was an assignment of the mortgage from Mortgage Electronic Registration Systems, Inc., as nominee for Mortgage Lenders Network USA, Inc., to U.S. Bank National Association as Trustee for RASC 2006-EMX7.

On July 15, 2013, U.S. Bank filed the original note, a copy of the mortgage, and a copy of the assignment. Attached to the original note was an allonge, but it was not the same allonge that had been attached to the complaint. This new allonge was undated and bore a blank endorsement from EMAX Financial Group, LLC. Though this allonge listed Mr. Caballero’s name and the correct property address, it contained a different loan number than the other documents.

These documents are insufficient to show that U.S. Bank had standing to foreclose. Though the copy of the note and the allonge attached to the complaint indicate that the note was transferred to U.S. Bank, U.S. Bank never filed the original allonge. “In order to prevail in a suit on a note and mortgage, the original note and mortgage must be introduced into evidence or a satisfactory reason must be given for failure to do so.” Fair v. Kaufman, 647 So. 2d 167, 168 (Fla. 2d DCA 1994). Because an allonge is essentially part of the note, see Isaac v. Deutsche Bank Nat’l Trust Co., 74 So. 3d 495, 496 n.1 (Fla. 4th DCA 2011), it was necessary for U.S. Bank to file the original allonge along with the original note.

Instead of filing the original allonge with the original note, U.S. Bank filed a different allonge. This allonge contained a different loan number, so U.S. Bank failed to establish that this allonge pertained to the correct loan. And even though this allonge did bear a blank endorsement, it was undated, and thus U.S. Bank failed to establish that this allonge and endorsement were attached to the note at the time the complaint was filed. See Seffar v. Residential Credit Sols., Inc., 160 So. 3d 122, 125-26 (Fla. 4th DCA 2015) (holding that the bank had failed to show standing where “[n]o evidence was presented that the allonge was executed and attached to the note prior to the filing of the initial complaint”). Finally, the assignment was insufficient to show standing because it only purported to assign the mortgage, not the note. See Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”). Because U.S. Bank failed to show standing, summary judgment should not have been entered in its favor.

Reversed and remanded for further proceedings.

SLEET and LUCAS, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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America Is Finally Putting the Home Foreclosure Crisis Behind It

America Is Finally Putting the Home Foreclosure Crisis Behind It

Bloomberg-

It’s taken nine years, but the number of U.S. homes in foreclosure has fallen to a level not seen since before the 2008 housing crisis.

More troubled borrowers are making their way through the foreclosure process, which can take more than five years on average in some states. The number of properties in active foreclosure declined by 24,000 to 631,000 in March, according to Black Knight Financial Services. That’s the lowest since October 2007. Neighborhoods across the country were in the coming years flooded with more than 2 million notices from banks.

The wave of foreclosures crested in 2010 when banks seized a record 1.2 million properties and served even more with notices of default, auction or repossession. People suffering from the worst economic crisis since the Great Depression just “mailed their keys to the banks and just said ‘take it’,” said Ben Graboske, a chief technology officer at Black Knight.

[BLOOMBERG]

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Why Is the Obama Administration Trying to Keep 11,000 Documents Sealed?

Why Is the Obama Administration Trying to Keep 11,000 Documents Sealed?

Rolling Stone-

The “most transparent administration in history” has spent years trying to hide embarrassing financial secrets from the public

It’s not quite the Panama papers, but one hell of a big pile of carefully guarded secrets may soon be made public.

For years now, the federal government has been quietly fighting to keep a lid on an 11,000-document cache of government communications relating to financial policy. The sheer breadth of the effort to keep this material secret may not have a precedent in modern presidential times.

“It’s the mother of all privilege logs,” explains one lawyer connected with the case.

The Obama administration invoked executive privilege, attorney-client and deliberative process over these documents and insisted that their release would negatively impact global financial markets. But in finally unsealing some of these materials last week, a federal judge named Margaret Sweeney said the government’s sole motivation was avoiding embarrassment.

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FTC: Bogus debts, bogus collections

FTC: Bogus debts, bogus collections

At the FTC, we sue abusive debt collectors and try to do right by people who’ve been harmed by unlawful practices. But we also try to protect people from being harmed in the first place. That’s exactly why I’m here: to warn you about debt collectors calling about debts that the FTC knows are bogus.

The bogus debts supposedly are payday loans from these companies: USFastCash, 500FastCash, OneClickCash, Ameriloan, United Cash Loans, AdvantageCashServices, or StarCashProcessing. The companies are real, but if you’re hearing from anyone other than those companies, the debts are fake and you don’t need to pay.

Sometimes, if they can’t collect money owed to them, companies sell lists of those debts to debt collectors. But, in this case, we know that didn’t happen. The company that processed and serviced loans from these companies told the FTC that it never sold any customer or account information to debt collectors. Their lawyer even filed a legal declaration saying that.

Even so, we’ve still heard about abusive calls from debt collectors claiming to be collecting money owed to the companies listed above – and we already know that’s not true. But we also know that many of the people who have been called never even had a loan with those lenders in the first place – so the debts themselves also are bogus.

What to do if you get a call from a debt collector who says you owe money to one of those companies? You have rights. Ask for a validation notice, which says what you owe and to whom. After you get it, consider sending a letter saying that you don’t owe the debt. If you’re getting debt collection calls, check your free credit report at annualcreditreport.com. If a debt you don’t recognize shows up there, follow the instructions to dispute the debt. And, as always, report any problems to the FTC.

source: FTC

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Audits of leading life insurance companies have uncovered a systematic, industry-wide practice of not paying significant numbers of beneficiaries

Audits of leading life insurance companies have uncovered a systematic, industry-wide practice of not paying significant numbers of beneficiaries

60 Minutes-

When you take out a life insurance policy, you pay premiums in the expectation that when you die your spouse or your children will receive the benefit. But audits of the nation’s leading insurance companies have uncovered a systematic, industry-wide practice of not paying significant numbers of beneficiaries.

In a little-known series of settlements, 25 of the nation’s biggest life insurance companies have agreed to pay more than $7.5 billion in back-death benefits. However, about 35 insurance companies have not settled and remain under investigation for not paying when the beneficiary is unaware there was a policy, something that is not at all uncommon.

Kevin McCarty: The beneficiary never comes forward because he or she doesn’t know the policy exists.

But the companies know, says Kevin McCarty, the insurance commissioner of Florida, who led the national task force investigating the industry. And the companies don’t pay, he says, unless a beneficiary makes a claim.

[60 MINUTES]

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Does the Florida Foreclosure Surplus Funds Time Frame of 60-Days Apply to United States’ Liens?

Does the Florida Foreclosure Surplus Funds Time Frame of 60-Days Apply to United States’ Liens?

Haynes & De Paz –

Last week I had a hearing regarding a Florida foreclosure surplus funds case. These are the facts:

  • Foreclosure sale occurred on November 4, 2015.
  • Certificate of Title was issued on December 16, 2015.
  • The homeowner filed a motion for foreclosure surplus funds on January 6, 2016.
  • The United States filed their claim for surplus (via a mortgage lien) on February 18, 2016.

The rules in Florida are very clear for collecting Florida Foreclosure Surplus funds. Florida Statute 45.031 requires any junior lienholder claiming a right to surplus funds to file a claim no later than 60 days from the date of the foreclosure sale. In fact, all case law in Florida prohibits lien holders from collecting the surplus after the 60-day time limit has expired.

In the above mentioned facts, the homeowner made a claim for the funds, while the United States made a claim well after the 60-day deadline.

At an evidentiary hearing, the United States filed a motion and made argument to the court that the United States is not bound by any state statute of limitations. More specifically, the United States stated that due to sovereign immunity, the United States could essentially wait as long as they want to before they claim the surplus funds, and that they would forever be entitled to them. However, sovereign immunity is not a design for the United States to ignore due diligence in civil cases.

[HAYNES & DE PAZ]

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Why the Goldman Sachs Settlement Is a $5 Billion Sham

Why the Goldman Sachs Settlement Is a $5 Billion Sham

The penalty might sound pretty stiff. But get a load of the real math.

New Republic-

“Recently Goldman Sachs reached a settlement with the federal government for $5 billion because they were selling worthless packages of subprime mortgages,” Bernie Sanders shouted (as he does) in the last Democratic presidential debate. “If you are a kid caught with marijuana in Michigan, you get a police record. If you are an executive on Wall Street that destroys the American economy, you pay a $5 billion fine, no police record.”

This lack of accountability for Wall Street and the perception of a two-tiered justice system gnaws away at Americans’ trust. But now that the Goldman Sachs settlement Sanders referred to has been finalized, I’m sorry to say that he was wrong. If you are an executive on Wall Street who destroys the American economy, you don’t pay a $5 billion fine. You pay much, much less. In fact, you can make a credible case that Goldman won’t pay a fine at all. They will merely send a cut of profits from long-ago fraudulent activity to a shakedown artist, also known as U.S. law enforcement.

The Justice Department announcement in the Goldman case states that between 2005 and 2007, the investment bank marketed and sold mortgage-backed securities to investors that were of lower quality than promised. As a result, Goldman will pay a $2.385 billion civil penalty to the Justice Department, $875 million resolving claims from other state and federal agencies, and $1.8 billion in so-called “consumer relief” measures, like forgiving principal on loans and providing financing for affordable housing. That’s where the much-touted $5 billion figure comes from.

[NEW REPUBLIC]

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Multiple Clinton Connections Emerge As More “Panama Papers” Names Revealed

Multiple Clinton Connections Emerge As More “Panama Papers” Names Revealed

Zero Hedge-

There has been much confusion, at time quite angry, how in the aftermath of the Soros-funded Panama Papers revelations few, if any, prominent U.S. name emerged as a result of the biggest offshore tax leak in history. Now, thanks to McClatchy more U.S. names are finally being revealed and it will probably come as little surprise that many of the newly revealed names have connection to both Bill and Hillary Clinton.

As McClatchy writes, donors to Clinton foundation used the Panamanian law firm for offshores, adding that the connections come from the more than 40 years Bill and Hillary Clinton have spent in public life. Ironically this comes just days after Hillary criticized those exposed in the Panama Papers, accusing them of looking to hide their wealth.

As McClatchy reports, Hillary Clinton recently blasted the hidden financial dealings exposed in thePanama Papers, but she and her husband have multiple connections with people who have used the besieged law firm Mossack Fonseca to establish offshore entities.

Among them are Gabrielle Fialkoff, finance director for Hillary Clinton’s first campaign for the U.S. Senate;Frank Giustra, a Canadian mining magnate who has traveled the globe with Bill Clinton; the Chagouryfamily, which pledged $1 billion in projects to the Clinton Global Initiative; and Chinese billionaire Ng Lap Seng, who was at the center of a Democratic fund-raising scandal when Bill Clinton was president. Also using the Panamanian law firm was the company founded by the late billionaire investor Marc Rich, an international fugitive when Bill Clinton pardoned him in the final hours of his presidency.

[ZERO HEDGE]

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Here we go again!! New Century wants the destruction of all records!!

Here we go again!! New Century wants the destruction of all records!!

“Blast this out to everyone you know – it might be the last time to obtain their New Century file. There is valuable information in these files –and since they are files that deal with the homeowner and where their collateral may be located – even if you are not in foreclosure it maybe imperative that you know in the future what happened to your file.  I did a post the last time – See: http://wp.me/p1H9BR-TN and it has all of the pertinent information. I’ll try to get another one up but in the meantime please share this with your email lists so that we can get the alert out!  Thanks to Anita Carr for keeping us briefed.”

Down Load PDF of This Case

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THE FLORIDA BEAUVAIS CASE: PREDICATED ON LIES AND DECEPTION … FLORIDA’S LATEST JOKE!

THE FLORIDA BEAUVAIS CASE: PREDICATED ON LIES AND DECEPTION … FLORIDA’S LATEST JOKE!

Clouded Titles –

(Op-Ed, Financial Education) — The following observations make the Florida Circuit Court in Miami-Dade County and the Third Circuit Court of Appeals look like a friggin’ joke!   In other words, how many amicus briefs can you put forward to twist the truth, bury the falsification of documents, cover up the misdeeds of counsel and misdirect all of the fraud on the court?  

SIDE NOTE: … not to mention all of the felony misrepresentation within the recorded documents used to turn this case into what it is … this case has turned the Florida court system into the laughing stock of the nation!  We’re not laughing with you, your Honor! We’re laughing AT YOU! The banks and the HOA lawyers really pulled a good one over on you this time! 

It is no surprise that the Third District Court of Appeals would rehear and reverse the Beauvais decision, which in of itself, was based on so much controversy that it boggles the mind.  It’s also no surprise that everyone was quick to say the reversal of the DCA’s previous ruling was against Florida homeowners and that my inbox would be flooded with negative comments about the decision, obviously anti-homeowner.

Let’s take the obvious for what it is, shall we?

[CLOUDED TITLES]

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



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TFH 4/17 | Foreclosure Workshop #10 (Part Two): Bayview v. Gabour (The Hearing)

TFH 4/17 | Foreclosure Workshop #10 (Part Two): Bayview v. Gabour (The Hearing)

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

.

Sunday – April 17, 2016

Foreclosure Workshop #10 (Part Two): Bayview v. Gabour (The Hearing)

Many listeners after last Sunday’s show — which provided a case study on assignment fraud in the Gabour case — have naturally inquired subsequently about the outcome of last Tuesday’s summary judgment hearing in that case.

This Sunday we will play for our listeners the full 45 minutes of what turned out to be a very encouraging hearing that every homeowner in foreclosure will profit by listening to, especially those with WaMu FA, the FDIC, and Chase all appearing jointly in the recorded chain of title of ownership of their mortgage loans.
(Please call in and share your experiences)

~

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY 3:00 PM HAWAII 6:00 PM PACIFIC 9:00 PM EASTERN ON KHVH-AM (830 ON THE DIAL) AND ON iHEART RADIO The Foreclosure Hour 12

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FANNIE MAE April 14 Servicing News: Announcement SVC-2016-03 and Lender Letters LL-2016-01 & LL-2016-02

FANNIE MAE April 14 Servicing News: Announcement SVC-2016-03 and Lender Letters LL-2016-01 & LL-2016-02

IN THIS ISSUE:

Announcement SVC-2016-03: Servicing Guide Updates
Lender Letter LL-2016-01: Advance Notice of Additional Changes to Future Investor Reporting Requirements
Lender Letter LL-2016-02: Fannie Mae Principal Reduction Modification
Join Us, Become a Fannie Mae Seller/Servicer
Build New Skills with HFI InDepth
Stay Connected

Announcement SVC-2016-03: Servicing Guide Updates

This Announcement communicates the following updates made to the Servicing Guide:

  • Updates to Selling/Servicing Requirements for Texas 50(a)(6) Mortgage Loans
  • Updates to Loan Level Price Adjustment Refunds
  • Updates to California Publication Requirements

Lender Letter LL-2016-01: Advance Notice of Additional Changes to Future Investor Reporting Requirements

This Lender Letter provides advance notice to the servicer of future changes to Fannie Mae investor reporting requirements.

Lender Letter LL-2016-02: Fannie Mae Principal Reduction Modification

This Lender Letter introduces a new mortgage loan modification program, the Fannie Mae Principal Reduction Modification, at the direction of FHFA and in collaboration with Freddie Mac. Details of this program are included in this Lender Letter.

In addition to LL-2016-02, Fannie Mae is also publishing a list of Servicer FAQ’s related to this program.

Join Us, Become a Fannie Mae Seller/Servicer

We’ve prepared a new resource to guide lenders through every step of the process to become an approved Fannie Mae seller/servicer. The recorded training tutorial Navigate the Fannie Mae Lender Approval Process, available 24/7, covers the benefits of a direct relationship with Fannie Mae and helps you understand what you can expect throughout the approval process. The course will walk you through the Fannie Mae eligibility requirements, outline the information we will need to consider your application, and give you a run-down on how your sponsor will help guide you through the process. Join us, become an approved Fannie Mae Seller/Servicer. We look forward to doing business with you!

Build New Skills with HFI InDepth

With Housing Finance Institute® (HFI™) InDepth, you’ll learn from expert instructors and get your questions answered — all in an online virtual classroom. Register today for an upcoming course:

Visit Fannie Mae’s HFI InDepth page today to see the full calendar of classes and to register!

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Court Sides With Lenders in Prolonged Foreclosure Case

Court Sides With Lenders in Prolonged Foreclosure Case

Daily Business Review –

The Third District Court of Appeal split 6-4 Wednesday when the full court revisited the application of the five-year statute of limitations in mortgage foreclosures with input from a national array of lending and consumer lawyers.

The state appellate court reversed itself after an en banc hearing in a case that pitted Deutsche Bank Trust Co. Americas against homeowner Harry Beauvais and Aqua Master Association Inc. in Miami Beach.

The bank requested a rehearing before the entire court after the Third DCA contradicted a Fifth DCA decision. The Third DCA now agrees with a Fifth DCA ruling that finds a missed mortgage payment after an initial failed foreclosure lawsuit starts a new five-year clock for filing suit.

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U.S. regulators fail ‘living wills’ at five of eight big banks

U.S. regulators fail ‘living wills’ at five of eight big banks

Reuters-

U.S. regulators gave a failing grade to five big banks on Wednesday, including JPMorgan Chase & Co (JPM.N) and Wells Fargo & Co (WFC.N), on their plans for a bankruptcy that would not rely on taxpayer money, giving them until Oct. 1 to make amends or risk sanctions.

The move officially starts a long regulatory chain that could end with breaking up the banks. Nearly a decade after the financial crisis, it underscored how the debate about banks being “too big to fail” continues to rage in Washington and exasperate on Wall Street.

The banks failed for reasons ranging from the way liquidity would be housed and shuffled among domestic and foreign subsidiaries to the manner in which executives would communicate problems as they arose during a crisis.

[REUTERS]

 

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Wells Fargo’s systemic importance rose, says U.S. report

Wells Fargo’s systemic importance rose, says U.S. report

YET!! U.S. regulators fail ‘living wills’ at five of eight big banks

Reuters-

Wells Fargo & Co (WFC.N) is the only large U.S. bank to become “significantly” more important to the global financial system in recent years, according to a report on Wednesday by a U.S. government research group.

The Office of Financial Research, a financial stability watchdog housed within the U.S. Treasury Department, studied the systemic importance of the world’s largest banks using 2014 data from the Basel Committee on Banking Supervision.

It then assigned a score to each bank based on factors including size, complexity, interconnectedness and cross-jurisdictional activity, as well as how easily the products they offer can be provided by competitors.

[REUTERS]

 

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DEUTSCHE BANK  V. BEAUVAIS, ET AL. | Motion on Rehearing – (dissenting) “I would affirm that part of the trial court’s final judgment holding that the statute of limitations precludes Deutsche Bank’s foreclosure action.”

DEUTSCHE BANK V. BEAUVAIS, ET AL. | Motion on Rehearing – (dissenting) “I would affirm that part of the trial court’s final judgment holding that the statute of limitations precludes Deutsche Bank’s foreclosure action.”

🙁 66 pages below…

Third District Court of Appeal
State of Florida

Opinion filed April 13, 2016.
________________
No. 3D14-575
Lower Tribunal No. 12-49315
________________
Deutsche Bank Trust Company Americas, as Indenture Trustee for
American Home Mortgage Investment Trust 2006-2,
Appellant,

vs.

Harry Beauvais, and Aqua Master Association, Inc., a non-profit
Florida corporation,
Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Peter R. Lopez,
Judge.

K&L Gates, and David R. Fine (Harrisburg, PA) and William P.
McCaughan, Steven R. Weinstein and Stephanie N. Moot, for appellant.
Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel and Steven
M. Siegfried and Nicholas D. Siegfried; Wallen Hernandez Lee Martinez, and
Todd L. Wallen, for appellee, Aqua Master Association, Inc.
Ausley McMullen and Major B. Harding; Hargrove Law Group and John R.
Hargrove, for Baywinds Community Association, Inc., as amicus curiae.
Levine Kellogg Lehman Schneider + Grossman, and Stephanie Reed
Traband and Victor Petrescu, for the Federal National Mortgage Association and
the Federal Home Loan Mortgage Corporation, as amici curiae.
Morgan, Lewis & Bockius, and Robert M. Brochin, Joshua C. Prever and
Christopher K. Smith, for Mortgage Bankers Association of South Florida, as
amicus curiae.
Matthew Estevez, for Community Associations Institute, as amicus
curiae.
Jacksonville Area Legal Aid and Lynn Drysdale, for the National
Association of Consumer Advocates, the National Consumer Law Center and the
Jerome N. Frank Legal Services Organization at the Yale Law School, as amici
curiae.
Gilbert Garcia Group, Michelle G. Gilbert, Jennifer Lima-Smith and
Nicholas R. Cavallaro; Gladstone Law Group, Andrea R. Tromberg and Jason F.
Joseph; Robertson, Anschutz & Schneid, Robert R. Edwards and Jessica P.
Quiggle; Kass Shuler, Melissa A. Giasi and Richard S. McIver; Elizabeth R.
Wellborn; Brock and Scott, Shaib Y. Rios and Curtis J. Herbert, for the American
Legal and Financial Network, as amicus curiae.
McGlinchey Stafford, and Manuel Farach, for the Business Law Section
of the Florida Bar, as amicus curiae.
Goldman Felcoski & Stone, and Robert W. Goldman; Gunster, and
Kenneth B. Bell and John W. Little, III, for the Real Property Probate & Trust Law
Section of The Florida Bar, as amicus curiae.
Crabtree & Auslander, and John G. Crabtree, Charles Auslander, George
R. Baise, Jr., and Brian C. Tackenberg; Alice Vickers and Bryant H. Dunivan, Jr.,
for Florida Alliance for Consumer Protection, as amicus curiae.
Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA,
SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.
ON MOTION FOR REHEARING EN BANC OR, IN THE
ALTERNATIVE, MOTION FOR CERTIFICATION

 

SCALES, J. (dissenting)

<…>

If it had been the intent of the legislature to render acceleration meaningless,
so that the statute of limitations and the statute of repose for foreclosure actions
were identical, the statute of repose would have been unnecessary. In other words,
by allowing the lender’s acceleration and potential re-accelerations to keep
delaying the operation of the statute of limitations, the majority establishes the
note’s maturity date as the only date that can trigger application of the five-year
statute of limitations. The statute of limitations and the statute of repose, absurdly,
would shake hands on March 1, 2041.

V. Conclusion
I am not unmindful of the moral imperative driving both the majority’s
opinion and a host of other State appellate court and federal decisions: borrowers
should pay their mortgage obligations. The expiration of a statute of limitations,
however, generally results in a windfall for the escaping defendant. In my view,
neither the moral imperative that borrowers pay their obligations, nor Singleton,
has abrogated decades of Florida jurisprudence governing the statute of limitations
in foreclosure cases. I would affirm that part of the trial court’s final judgment
holding that the statute of limitations precludes Deutsche Bank’s foreclosure
action.

SHEPHERD, SALTER and EMAS, JJ., concur.

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JPMorgan Loses Foreclosure Appeal for Lack of Proof

JPMorgan Loses Foreclosure Appeal for Lack of Proof

Daily Business Review –

No note? No problem — at least for JPMorgan Chase N.A. in a foreclosure trial.

But the Third District Court of Appeal reversed the final judgment granted without “any document or other evidence to establish its foreclosure action.”

The bank triumphed in a bench trial after filing to foreclose on a condominium at 7910 Harbor Island Drive in North Bay Village in 2013.

The borrower, Angel Enrique Abreu, received $263,250 in July 2008 on a note that set an interest rate of 7.625 percent and monthly payments at about $1,863.

image: Reuters
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