September, 2016 | FORECLOSURE FRAUD | by DinSFLA - Part 2

Archive | September, 2016

HSBC Mtge. Servs., Inc. v Royal | Accordingly, since the plaintiff failed to meet its prima facie burden, its motion should have been denied …. ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff’s motion for summary judgment on the complaint …. and so much of the order dated December 17, 2014, as granted the plaintiff’s motion, inter alia, for summary judgment is vacated …

HSBC Mtge. Servs., Inc. v Royal | Accordingly, since the plaintiff failed to meet its prima facie burden, its motion should have been denied …. ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff’s motion for summary judgment on the complaint …. and so much of the order dated December 17, 2014, as granted the plaintiff’s motion, inter alia, for summary judgment is vacated …

Decided on September 14, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P. 
SHERI S. ROMAN 
JEFFREY A. COHEN 
FRANCESCA E. CONNOLLY, JJ.
2015-07269 
2015-07270 
(Index No. 9866/10) 

[*1] HSBC Mortgage Services, Inc., respondent,

v

Phillippa Royal, appellant, et al., defendants.

DECISION & ORDER

ORDERED that the appeal from the order dated December 17, 2014, is dismissed, as the portion of the order appealed from was superseded by the order dated January 5, 2015; and it is further,

ORDERED that the order dated January 5, 2015, is reversed, on the law, the plaintiff’s motion for summary judgment on the complaint, to strike the answer of the defendant Phillippa Royal, to amend the caption, and to appoint a referee to compute the amount due to the plaintiff is denied, and so much of the order dated December 17, 2014, as granted the plaintiff’s motion, inter alia, for summary judgment is vacated; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

. . .

The plaintiff failed to demonstrate the admissibility of the records relied upon by Roesner under the business records exception to the hearsay rule (see CPLR 4518[a]), and, thus, failed to establish the appellant’s default in payment under the note. “A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker’s business practices and procedures”

. . .

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, since the plaintiff failed to meet its prima facie burden, its motion should have been denied, regardless of the sufficiency of the appellant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

BALKIN, J.P., ROMAN, COHEN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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DHANIK v. HSBC BANK USA, Fla 2nd DCA – we reverse and remand for the trial court to enter an order of involuntary dismissal based on the bank’s lack of standing at the time it filed the complaint.

DHANIK v. HSBC BANK USA, Fla 2nd DCA – we reverse and remand for the trial court to enter an order of involuntary dismissal based on the bank’s lack of standing at the time it filed the complaint.

YOGENDRA S. DHANIK and BHARTI Y. DHANIK, Appellants,
v.
HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for LUMINENT MORTGAGE TRUST 2007-2, Appellee.

Case No. 2D13-5292.
District Court of Appeal of Florida, Second District.

Opinion filed September 9, 2016.
Appeal from the Circuit Court for Pasco County; William H. Burgess, III, Judge.

Michael E. Rodriguez of Foreclosure Defense Law Firm, P.L., Tampa, for Appellants.

Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.

LaROSE, Judge.

Yogendra and Bharti Dhanik appeal a final judgment of foreclosure. The Dhaniks argue, and HSBC Bank USA concedes, that the bank failed to present sufficient trial evidence of standing at the time it filed the complaint.

“This court reviews the sufficiency of the evidence to prove standing to bring aforeclosure action de novo.Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1040 (Fla. 4th DCA 2015).

“A plaintiff alleging standing as a holder must prove it is a holder of the note and mortgage both as of the time of trial and also that the (original) plaintiff had standing as of the time the foreclosure complaint was filed.” Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015) (quoting Keifert v. Nationstar Mortg., LLC, 153 So. 3d 351, 352 (Fla. 1st DCA 2014)). “If the plaintiff is not the payee of the original note, the plaintiff must also prove that the original note contains an [e]ndorsement in favor of the plaintiff (special [e]ndorsement) or an [e]ndorsement in blank.” Id. To establish standing, the endorsement “must have been made prior to the filing of the lawsuit.” Id.

Although the bank attached a copy of the mortgage and note to the complaint, those copies lacked any endorsement to the bank or a blank endorsement. The note introduced at trial contained a blank endorsement. However, the bank offered no evidence as to when the blank endorsement was placed on the note. Thus, there was no evidence before the trial court that the bank had standing at the time theforeclosure complaint was filed. “The bank’s failure to prove a prima facie case warrants dismissal.” May v. PHH Mortg. Corp., 150 So. 3d 247, 249 (Fla. 2d DCA 2014).

As in Russell and May, we reverse and remand for the trial court to enter an order of involuntary dismissal based on the bank’s lack of standing at the time it filed the complaint.

Reversed and remanded with instructions.

NORTHCUTT and SLEET, JJ., Concur.

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

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Feds Investigating Wells Fargo After Employees Open 2 Million Fake Accounts… WHAT ABOUT THE FORECLOSURE FRAUD MANUFACTURING/DOCTORING DOCUMENT MANUAL?

Feds Investigating Wells Fargo After Employees Open 2 Million Fake Accounts… WHAT ABOUT THE FORECLOSURE FRAUD MANUFACTURING/DOCTORING DOCUMENT MANUAL?

You all recall that Wells Fargo Home Mortgage Foreclosure Attorney Procedure Manual, Version 1 Status: Revision 3 Origination Date: 11/09/2011 Date Last Published: 02/24/2012?

Consumerist-

Financial regulators recently ordered Wells Fargo to pay $185 million to resolve allegations that the bank’s sales quotas and incentives pushed employees to open millions of unauthorized accounts, but that my not be the end of Wells’ troubles, with the U.S. Department of Justice now looking into the matter.

Federal prosecutors in U.S. attorney’s offices in New York and San Francisco are in the early stages of an investigation related to the bank’s alleged improper sales tactics that started in 2013, The Wall Street Journal reports, citing sources familiar with the matter.

The investigation centers on whether someone in senior management within the bank directed employees to falsify documents in conjunction with the opening of more than one million accounts and other banking products without customers’ knowledge.

[CONSUMERIST]

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LETTER | On 8th Anniversary of Lehman Bankruptcy, Senator Warren Calls for IG Review of DOJ’s Failed Response to Financial Crisis Inquiry Commission Referrals

LETTER | On 8th Anniversary of Lehman Bankruptcy, Senator Warren Calls for IG Review of DOJ’s Failed Response to Financial Crisis Inquiry Commission Referrals

Senator also asks FBI to release related investigative materials, citing precedent set by release of Sec. Clinton email investigation records

SEP 15, 2016

Review of recently released archives shows no DOJ criminal prosecutions of FCIC-referred individuals or companies

Text of letter to DOJ IG available here (PDF)
Text of letter to FBI Director Comey available here (PDF)

Washington, DC – On the eighth anniversary of the Lehman Brothers bankruptcy, United States Senator Elizabeth Warren asked the Department of Justice (DOJ) Office of the Inspector General (OIG) to conduct an investigation into the inability of the DOJ to prosecute any of the individuals referred to the agency by the FCIC for potential law-breaking related to the 2008 financial crisis. Recently-released documents revealed that the FCIC referred nine individuals and 14 corporations to the DOJ in 2010 based on “serious indications of violation(s)” of federal securities or other laws. But none of these individuals or corporations has been criminally prosecuted.

“The outcome of the referrals by the FCIC to the DOJ represents an abysmal failure. It means that key companies and individuals that were responsible for the financial crisis and were the cause of substantial hardship for millions of Americans faced no criminal charges. This failure is outrageous and baffling, and it requires an explanation,” Senator Warren wrote today to the OIG.

The senator’s letter provides details of the FCIC’s referrals and the alleged misconduct by these nine individuals and 14 firms, and calls for an IG investigation of DOJ actions taken in response to the FCIC referrals.

Senator Warren today also wrote to FBI Director James Comey to request that the FBI release its materials related to the investigations and prosecutorial decisions of the companies and individuals named in the FCIC referrals.

The senator’s request comes after Director Comey took the unusual step of releasing records related to the investigation of former Secretary of State Hillary Clinton’s email system, citing “intense public interest.”

The senator wrote, “These new standards present a compelling case for public transparency around the fate of the FCIC referrals. … I can think of no matter of ‘intense public interest’ about which ‘the American people deserve the details’ than the issue of what precisely happened to the criminal referrals that followed the 2008 crash.”

Read a PDF copy of Senator Warren’s letter to the DOJ here, and a PDF copy of her letter to FBI Director Comey here.

###

image: Susan Walsh AP

 

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Attorney Nick Wooten is Suing Banks in Illinois for Breaking Into Homes

Attorney Nick Wooten is Suing Banks in Illinois for Breaking Into Homes

CrossPost from Mandelman Matters

Foreclosure defense attorney Nick Wooten has been making headlines as a consumer attorney since the earliest days of the foreclosure crisis.

Nick became quite well known around the country for his high profile, David v. Goliath type cases.  He sued Lender Processing Services (LPS)… he went after MERS… and he won a landmark case in Alabama, of all places, Horace v. LaSalle Bank, in which the judge ruled that the note was not properly endorsed and negotiated into the trust and therefore the trust could not foreclose.

Nick is now practicing law in Chicago, Illinois… he’ll explain why during the interview… and on this Mandelman Matters Podcast he also explain why he is focusing on cases he refers to as: “Break In Cases.”

Homeowners in the middle of loan modifications or short sales… or sometimes the homeowners are current on their mortgages, believe it or not… they come home from work one day to learn that they’ve been locked out of their homes.  When they finally get inside they discover that everything they owned… is gone.  Sold or taken to the dump.  Baby pictures, clothing, appliances, jewelry… precious memories that can never be replaced.

Most of us can remember reading about this sort of thing happening in the early years of the foreclosure crisis, and you’ll be shocked to learn that it’s still happening every day in this country, according to Nick.

(I didn’t know this was still happening, so I did some research and, of course, Nick’s absolutely right.  How can this sort of thing go on without making the news in this country?  That I’ll never fully understand.)

Nick is now representing homeowners who have been victimized in this outrageous and deplorable way by their banks and mortgage servicers, and he wants to talk to homeowners in Illinois and elsewhere who have been forced to endure this special kind of hell.  

In addition, attorneys representing homeowners will want to listen Nick talk about his plan to put a stop to this “accidental” practice by making it so expensive that the banks stop doing it.

(You can reach Nick in Chicago by contacting: Sulaiman Law 

or you can email me: mandelman@mac.com and I’ll put you in touch.)

This is both important and shocking.  You really don’t want to miss this Mandelman Matters Podcast so be sure your speakers are turned up and click PLAY below.

imgres-6

Mandelman out. 

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Daugherty v. Convergent Outsourcing, Inc., | 5th Cir. Ct of Appeals –  §1692e ..we agree that a collection letter seeking payment on a time-barred debt (without disclosing its unenforceability) but offering a “settlement” and inviting partial payment … could constitute a violation of the FDCPA

Daugherty v. Convergent Outsourcing, Inc., | 5th Cir. Ct of Appeals – §1692e ..we agree that a collection letter seeking payment on a time-barred debt (without disclosing its unenforceability) but offering a “settlement” and inviting partial payment … could constitute a violation of the FDCPA

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20392

ROXANNE DAUGHERTY,
Plaintiff – Appellant

v.

CONVERGENT OUTSOURCING, INCORPORATED; LVNV FUNDING,
L.L.C.,
Defendants – Appellees

Appeal from the United States District Court
for the Southern District of Texas

Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:

The issue presented by this appeal is whether a collection letter for a
time-barred debt containing a discounted “settlement” offer—but silent as to
the time bar and without any mention of litigation—could mislead an
unsophisticated consumer to believe that the debt is enforceable in court, and
therefore violate the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.
§§ 1692-1692p. After receiving such a letter, the plaintiff credit card debtor
sued the defendant debt collectors pursuant to the FDCPA. The district court
dismissed the complaint, holding that efforts to collect time-barred debts
without threatening or filing suit do not violate the FDCPA. We reverse.

Down Load PDF of This Case

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NY Attorney General Opens Inquiry Into Trump Foundation

NY Attorney General Opens Inquiry Into Trump Foundation

ABCNEWS-

The New York State attorney general’s office has opened a broad inquiry into the Trump Foundation, the office confirms.

The inquiry concerns, among other things, Donald Trump buying a portrait of himself and a donation to a group supporting Florida Attorney General Pam Bondi, a Trump supporter, according to a source in the office.

The question is whether Trump Foundation made accurate disclosures, a source said. Further details about the portrait and other donations were not immediately available.

[ABC NEWS]

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LETTER | House Judiciary Committee Democrats Call On DOJ to Criminally Investigate Trump Foundation Donations to Florida Ag Pam Bondi

LETTER | House Judiciary Committee Democrats Call On DOJ to Criminally Investigate Trump Foundation Donations to Florida Ag Pam Bondi

Sep 13, 2016

Washington, DC – U.S. House Judiciary Committee Ranking Member John Conyers, Jr. (D-MI) today led a letter signed by every Democratic member of the U.S. House Judiciary Committee requesting that U.S. Department of Justice Attorney General Loretta Lynch investigate allegations of bribery and other criminal misconduct concerning the $25,000 donation from the Donald J. Trump Foundation to Florida Attorney General Pam Bondi.

In their letter, the Members wrote, “…It has been reported that Florida Attorney General Pam Bondi personally solicited a political contribution from Republican presidential nominee Donald Trump while her office deliberated joining an investigation of fraud at Trump University…After receiving these funds, Mrs. Bondi declined to further investigate Mr. Trump’s business interests. This fact pattern indicates that these payments may have influenced Mrs. Bondi’s official decision not to participate in litigation against Mr. Trump.  A number of criminal statutes would appear to be implicated by this course of conduct…”

Ranking Member Conyers was joined on the letter by every Democratic member of the U.S. House Judiciary Committee, including: Representatives Jerrold Nadler (D-NY), Zoe Lofgren (D-CA), Sheila Jackson Lee (D-TX), Steve Cohen (D-TN), Hank Johnson (D-GA), Pedro Pierluisi (D-Res.Comm.- PR), Judy Chu (D-CA), Ted Deutch (D-FL), Luis Gutierrez (D-IL), Karen Bass (D-CA), Cedric Richmond (D-LA), Suzan DelBene (D-WA), Hakeem Jeffries (D-NY), David Cicilline (D-RI), and Scott Peters (D-CA).

Full text of the letter to the Department of Justice is available here and below:

 

The Honorable Loretta Lynch

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Attorney General Lynch:

As members of the House Committee on the Judiciary, we write to ask that you investigate allegations of criminal misconduct surrounding the $25,000 donation from the Donald J. Trump Foundation to Florida Attorney General Pam Bondi.

We understand the operative facts to include the following:  It has been reported that Florida Attorney General Pam Bondi personally solicited a political contribution from Republican presidential nominee Donald Trump while her office deliberated joining an investigation of fraud at Trump University.[1]  A political organization backing Mrs. Bondi’s reelection reported receiving a $25,000 donation from the Donald J. Trump Foundation on September 17, 2013—just four days after her office announced it might join a New York state probe of Trump University and its affiliates.[2]  At least one of Mr. Trump’s family members also donated to her campaign.[3]  After receiving these funds, Mrs. Bondi declined to further investigate Mr. Trump’s business interests.[4]

This fact pattern indicates that these payments may have influenced Mrs. Bondi’s official decision not to participate in litigation against Mr. Trump.  A number of criminal statutes would appear to be implicated by this course of conduct, including the following:

  • 18 U.S.C. § 201(b) – pertaining to unlawful bribery schemes.
  • 18 U.S.C. §§ 1341, 1343, and 1346 – pertaining to bribery schemes that deprive constituents of the honest services of public officials.
  • 26 U.S.C. § 7206 and 18 U.S.C. § 1001 – concerning a deliberate failure to disclose the transfer of funds by a non-profit foundation to the Internal Revenue Service, under penalty of perjury.

Therefore, our concerns extend beyond Mr. Trump’s violation of tax laws.  We note that he has already paid a $2,500 penalty to the Internal Revenue Service and refunded his foundation $25,000.[5]

We also note that this allegation—that Mr. Trump bribed a Florida state official to protect his business interests—is consistent with Mr. Trump’s own statements about using money to influence politics.  In a 2015 interview with theWall Street Journal, he justified his actions this way: “As a businessman and a very substantial donor to very important people, when you give, they do whatever the hell you want them to do.”[6]  He was even more direct at campaign stop earlier this year: “I’ve given to everybody.  Because that was my job.  I gotta give to them . . . . Because when I want something, I get it.  When I call, they kiss my ass.”[7]

In recent days, there has been an increasingly urgent call for the Department of Justice to examine these alleged crimes by a number of editorial boards, including the Tampa Bay Times, the Sun Sentinel, and the Washington Post. (“Feds should investigate Bondi-Trump connection;”[8] “Public deserves facts in Bondi-Trump controversy;”[9]“The Pam Bondi case shows Trump is more hustler than businessman.”[10])

For all the foregoing reasons, we respectfully ask that you examine these allegations.

Thank you for your prompt consideration of this matter.

Sincerely,

 

cc:        Robert Goodlatte, Chairman, House Committee on the Judiciary


[1] See, e.g., Jeff Horowitz et al., Florida AG asked Trump for donation before nixing fraud case, Associated Press, June 6, 2016.

[2] Id.

[3] Id.

[4] Michael Van Sickler, Trump Contribution to Bondi re-election draws more scrutiny to her fundraising, Tampa Bay Times, Oct. 17, 2013.

[5] Michael Auslen, Tracing the controversy of Trump’s $25,000 donation to Pam Bondi, Tampa Bay Times, Sept. 7, 2016.

[6] Peter Nicholas, Donald Trump Walks Back His Past Praise of Hillary Clinton, Wall St. Journal, July 29, 2015.

[7] David A. Fahrenthold and Rosalind S. Helderman, Trump bragged that his money bought off politicians. Just not this time., Wash. Post, Sept. 7, 2016.

[8] Tampa Bay Times, Sept. 8, 2016.

[9] Florida Sun Sentinel, Sept. 8, 2016.

[10] Wash. Post, Sept. 8, 2016.

114th Congress
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DIROBERTO v. BAYVIEW LOAN SERVICES LLC, Fla 4DCA – There was no proof at trial that the original plaintiff, JP Morgan Chase, had standing to foreclose when it filed the original complaint.

DIROBERTO v. BAYVIEW LOAN SERVICES LLC, Fla 4DCA – There was no proof at trial that the original plaintiff, JP Morgan Chase, had standing to foreclose when it filed the original complaint.

 

JOHN DIROBERTO and ROMI DIROBERTO, Appellants,
v.
BAYVIEW LOAN SERVICES LLC, ANY AND ALL UNKNOWN PARTIES CLAIMING BY THROUGH, UNDER, AND AGAINST THE HEREIN NAMED INDIVIDUAL DEFENDANT(S) WHO ARE NOT KNOWN TO BE DEAD OR ALIVE, WHETHER SAID UNKNOWN PARTIES MAY CLAIM AN INTEREST AS SPOUSES, HEIRS, DEVISEES, GRANTEES, OR OTHER CLAIMANTS, TENANT #1, TENANT #2, TENANT #3 and TENANT #4 the names being fictitious to account for parties in possession, Appellees.

No. 4D15-749.
District Court of Appeal of Florida, Fourth District.
September 7, 2016.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, L.T. Case No. CACE 09-011660 (11), Kathleen D. Ireland, Senior Judge.

Jonathan Kline of Jonathan Kline, P.A., Weston, for appellants.

Michael J. Eisler of Straus & Eisler, P.A., Weston, for Appellee Bayview Loan Services LLC.

PER CURIAM.

We reverse the final judgment of foreclosure and remand for entry of an involuntary dismissal. There was no proof at trial that the original plaintiff, JP Morgan Chase, had standing to foreclose when it filed the original complaint. See Snyder v. JP Morgan Chase Bank, Nat’l Ass’n, 169 So. 3d 1270, 1271-74 (Fla. 4th DCA 2015) (holding that Chase failed to prove standing where it did not prove it had possession of the note when it filed suit, and rejecting the argument that Chase established its right to foreclose through the Purchase Agreement between the FDIC and Chase for the assets of WAMU). In light of this disposition, it is unnecessary to reach the other issues raised on appeal.

Reversed.

WARNER, TAYLOR and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Wells Fargo scandal: Elizabeth Warren wants answers about “staggering fraud”

Wells Fargo scandal: Elizabeth Warren wants answers about “staggering fraud”

CNN MONEY-

Wells Fargo CEO John Stumpf is being called on by Senator Elizabeth Warren and her Senate colleagues to testify on his bank’s stunning fake account scandal.

Warren joined four other Senate Democrats on Monday in demanding the U.S. Senate banking committee hold “immediate” hearings to “fully investigate the matter.”

“This was a staggering fraud,” Warren told CNN’s Jake Tapper last week.

[CNN MONEY]

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Workers tell Wells Fargo horror stories

Workers tell Wells Fargo horror stories

CNN MONEY –

Relentless pressure. Wildly unrealistic sales targets. Employees leaning on family members and friends to open unnecessary bank accounts.

That’s how more than a dozen former Wells Fargo employees described the bank’s culture to CNNMoney.

Wells Fargo (WFC)has been accused by federal regulators of illegal activity on a stunning level.Authorities say employees at the bank secretly created millions of unauthorized bank and credit card accounts between 2011 and July 2015, allowing the bank to make more money in fees and meet internal sales targets.
 .
.
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KANIU v.  EMC Mortgage Corporation,1 JP Morgan Chase Bank, N.A., and California Reconveyance Company | the consequences of a failed home loan mortgage modification process

KANIU v. EMC Mortgage Corporation,1 JP Morgan Chase Bank, N.A., and California Reconveyance Company | the consequences of a failed home loan mortgage modification process

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

SAM KANIU et al.,
Plaintiffs and Appellants,

v.

EMC MORTGAGE CORPORATION et al.,
Defendants and Respondents.

Kaniu v EMC by DinSFLA on Scribd

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RIDICULOUS!!! Wells Fargo Exec Who Headed Phony Accounts Unit Collected $125 Million

RIDICULOUS!!! Wells Fargo Exec Who Headed Phony Accounts Unit Collected $125 Million

FORTUNE –

Wells Fargo & Co’s WFC -0.37% “sandbagger”-in-chief is leaving the giant bank with an enormous pay day—$124.6 million.

In fact, despite beefed-up “clawback” provisions instituted by the bank shortly after the financial crisis, and the recent revelations of massive misconduct, it does not appear thatWells Fargo is requiring Carrie Tolstedt, the Wells Fargo executive who was in charge of the unit where employees opened more than 2 million largely unauthorized customer accounts—a seemingly routine practice that employees internally referred to as “sandbagging”—to give back any of her nine-figure pay.

On Thursday, Wells Fargo WFC -0.37% agreed to pay $185 million, including the largest penalty ever imposed by the Consumer Financial Protection Bureau, to settle claims that that it defrauded its customers. The bank’s shareholders will ultimately have to swallow the cost of that settlement. The bank also said it had fired 5,300 employees over five years related to the bad behavior.

[FORTUNE]

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COLOSSAL FRAUD | Thousands of complaints suggest account issues are not limited to Wells Fargo

COLOSSAL FRAUD | Thousands of complaints suggest account issues are not limited to Wells Fargo

MARKET WATCH –

The news that Wells Fargo secretly created over two million accounts generated outrage across the country.

Wells Fargo WFC, -0.37% said it regrets and takes responsibility for “any instances where customers may have received a product that they did not request.” It’s refunded $2.6 million, or an average of $25, to customers who were impacted.

But a look at a database of customer complaints finds that issues of account openings and closings are not limited to that bank — raising at least the possibility that the practice could go on elsewhere. The database, from the Consumer Financial Protection Bureau, shows over 30,000 complaints on the issue of “account opening, closing or management.”

[MARKET WATCH]

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TFH 9/11/2016 | Foreclosure Workshop #21: Saterbak v. JPMorgan Chase Bank and Lucioni v. Bank of America — A Case Study on How Not To Argue and How Not To Decide a Foreclosing Mortgagee’s Standing or Lack Thereof in Foreclosure Actions

TFH 9/11/2016 | Foreclosure Workshop #21: Saterbak v. JPMorgan Chase Bank and Lucioni v. Bank of America — A Case Study on How Not To Argue and How Not To Decide a Foreclosing Mortgagee’s Standing or Lack Thereof in Foreclosure Actions

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 – September 11, 2016

Foreclosure Workshop #21: Saterbak v. JPMorgan Chase Bank and Lucioni v. Bank of America — A Case Study on How Not To Argue and How Not To Decide a Foreclosing Mortgagee’s Standing or Lack Thereof in Foreclosure Actions
——————–

The number one issue in foreclosure litigation today continues to be whether the plaintiff has standing to foreclose, which is generally regarded as a threshold jurisdictional requirement otherwise mandating dismissal.

Yet both homeowners’ attorneys and trial and appellate judges alike continue to misfocus their attention by misapplying legal doctrines in the resolution of standing issues.

The purpose of Foreclosure Workshop #21 is to expose and learn from those deficiencies in the context of recent post-Yvanova California appellate cases, in the hope of improving both foreclosure defense advocacy and judicial decision making in this vital area of consumer rights.

.
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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National Mortgage Settlement Monitor’s Update on Ocwen’s Compliance

National Mortgage Settlement Monitor’s Update on Ocwen’s Compliance

Introduction

The following pages provide an overview of my report to the United States District Court for the District of Columbia on Ocwen’s compliance with the servicing standards. Close followers of the National Mortgage Settlement (NMS or Settlement) will recall that Ocwen was a successor servicer to one of the original servicers in the Settlement, ResCap Parties. As a result of that transaction, I monitored Ocwen’s compliance with the Settlement for that portion of its loan portfolio. Subsequently, in February 2014, Ocwen joined the Settlement for its entire operation. This report is my third report on Ocwen with respect to all the loans it services and covers testing periods for the third and fourth calendar quarters 2015.

Though Ocwen passed all my tests during the third quarter 2015, it did fail two tests for the fourth quarter 2015, each of which is related to force-placed insurance. Further discussion of these fails and Ocwen’s actions to correct them are below.

As stated in my previous reports, I required Ocwen to place a hold on foreclosure sales on 17,300 loans because of significant errors in loan modification denial notices sent to borrowers. This hold was related to part of Ocwen’s remediation efforts after it failed Metric 31. These errors included, among other things, failure to provide the factual information considered by Ocwen in making its decision and the timeframe for borrowers to appeal the denial and provide evidence that the denial was made in error. After Ocwen mailed corrected loan modification denial notices to affected borrowers in May 2016 and provided a sufficient timeframe for borrowers to appeal their denials, I permitted Ocwen to lift the foreclosure hold in July 2016. Ocwen continues to address and implement other remediation efforts related to its Metric 31 failure. In August 2016, I confirmed Ocwen had completed its Metric 31 corrective action plan (CAP) as of March 2016. I will continue to closely monitor Ocwen’s implementation of its Metric 31 remediation plan and its overall compliance with the Settlement.

Sincerely,

JAS-signature

 

 

 

 

Joseph A. Smith, Jr.

Monitoring the Settlement

As previously reported, testing has uncovered issues with Ocwen’s Internal Review Group (IRG). Due to these issues, I directed the professionals working with me to conduct additional testing. Specifically, this included enhanced scrutiny of testing protocols for Metrics 2, 28 and 29. These metrics test the accuracy of Ocwen’s denial of a loan modification request, the timeliness of forceplaced insurance notices sent to borrowers and the timeliness of Ocwen’s force-placed insurance policy termination and refund of premiums, respectively. I required increased scrutiny on these metrics to ensure that both the servicer and its vendors are in compliance with the servicing standards.

Monitor’s Role: Testing a Metric

Fails: What’s Next?

Compliance Testing Results

During the third quarter 2015, Ocwen did not fail any metrics. However, my testing during the final quarter 2015 uncovered two failed metrics related to forceplaced insurance.

Scorecard

Metric 28

Metric 28 tests whether Ocwen is timely in its communications to borrowers regarding a lapse in homeowner’s insurance coverage and notifies the borrower that force-placed insurance may be obtained if evidence of the borrower’s own insurance is not submitted.

Errors occur on this metric if all notification letters are not sent in a timely manner, or do not contain all the necessary information, or if Ocwen places force-placed insurance when there was evidence of a valid insurance policy already in place.

Ocwen’s IRG and my professionals determined that Ocwen exceeded the Metric 28 threshold error rate and failed the metric for the fourth quarter 2015.

In its CAP, Ocwen identified several root causes that contributed to the fail. Most were attributable to the implementation of a new process for handling notifications in connection with condominium loans.

In these instances, some letters omitted required language offering to establish an escrow account for insurance payments. In a smaller number of instances, human errors and technology issues led to non-compliance, including letters not sent within timeline requirements, letters not sent to the correct borrower address and force-placed insurance policies issued despite the borrower having submitted evidence of valid insurance. I approved Ocwen’s CAP in June 2016. That plan is summarized below.

Corrective Action Plan (CAP) for Metric 28

Metric 29

Metric 29 tests whether Ocwen terminated force-placed insurance and refunded premiums to affected borrowers in a timely manner.

An error under Metric 29 occurs when force-placed insurance is not terminated and any prorated portions of premiums are not refunded within 15 days of a servicer’s receipt of the borrower’s proof of insurance.

Ocwen’s IRG and my professionals determined that Ocwen exceeded the Metric 29 threshold error rate and failed the metric for the fourth quarter 2015.

In its CAP, Ocwen identified the root cause of the fail as miscellaneous manual errors by Ocwen’s forceplaced insurance vendor. I approved Ocwen’s CAP in August 2016. That plan is summarized below.

Corrective Action Plan (CAP) for Metric 29

Update on Corrective Actions

Ocwen has implemented the CAPs to correct five previously reported Metric fails. After I uncovered these fails, I worked with Ocwen and the Monitoring Committee to establish and review the servicer’s CAPs. Below is an overview of Ocwen’s progress.

Metric 7

Ocwen failed Metric 7 in the third quarter 2014. This metric determines whether Ocwen sends preforeclosure notification letters in a timely manner and with accurate and complete information.

Ocwen completed its CAP as of July 2015. In November 2015, I determined that Ocwen had completed the remediation for Metric 7. The IRG’s testing resumed as of the fourth quarter 2015, and my professionals and I have determined that the Metric 7 fail is cured. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future testing results.

Corrective Action Plan (CAP) for Metric 7

Metric 8

Ocwen failed Metric 8 in the fourth quarter 2014. This metric tests whether Ocwen properly collected default-related fees from borrowers. Those fees include property preservation fees, valuation fees and attorneys’ fees.

Ocwen completed its CAP as of February 2016. In March 2016, I determined that Ocwen had completed the remediation for Metric 8. The IRG’s testing resumed as of the second quarter 2016. My professionals and I will review the IRG’s testing and will report whether the Metric 8 fail has been cured in a future report. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Corrective Action Plan (CAP) for Metric 8

Metric 19

Ocwen failed Metric 19 in the first quarter 2014. This metric determines whether Ocwen sends a timely response to borrowers regarding missing or incomplete information or documents in loan modification packets. Ocwen completed its CAP as of June 2015. The IRG’s testing resumed in the third quarter 2015, and my professionals and I have determined that the Metric 19 fail is cured. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Ocwen completed its CAP as of June 2015. The IRG’s testing resumed in the third quarter 2015, and my professionals and I have determined that the Metric 19 fail is cured. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Remediation
Ocwen elected to treat the Metric 19 failure as if it was widespread. In April 2016, Ocwen reported that it had remediated all borrowers who could have been impacted from December 1, 2013, to March 31, 2015, by providing them with a correct notification of missing documents and additional time to provide the missing information. My professionals and I are now testing to determine if the remediation is complete.

Corrective Action Plan (CAP) for Metric 19

Metric 23

Ocwen failed Metric 23 in the third quarter 2014. Metric 23 tests whether Ocwen provides notification to borrowers of missing documents or information within 30 days of Ocwen’s receipt of the borrower’s request for a short sale.

Ocwen completed its CAP as of June 2015. In February 2016, I determined that Ocwen’s assertion that no material harm had occurred as a result of this failure was accurate, and no remediation was required. The IRG’s testing resumed in the third quarter 2015, and my professionals and I have determined that the Metric 23 fail is cured. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Corrective Action Plan (CAP) for Metric 23

Metric 31

Ocwen failed Metric 31 in the third quarter 2014. Metric 31 tests whether the servicer sent a loan modification denial notification to a borrower that included the reason for the denial, the factual information considered by the servicer in making its decision and a timeframe by which the borrower can provide evidence that the decision was made in error.

Ocwen completed its CAP as of March 2016. The IRG’s testing resumed as of the second quarter 2016. My professionals and I will review the IRG’s testing and will report whether the Metric 31 fail has been cured in a future report. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Remediation
Because the Metric 31 fail was widespread, Ocwen was required to mail corrected loan modification denial notices to 17,300 potentially affected borrowers. I required the company to hold foreclosure sales for all borrowers who could have received an incorrect loan modification denial notice until these borrowers received the correct information and had a chance to appeal. After Ocwen mailed corrected loan modification denial notices in May 2016 and affected borrowers were afforded a chance to appeal, I granted Ocwen permission to lift that hold in July 2016. Ocwen is continuing to implement other aspects of the remediation plan related to this metric. I expect Ocwen to complete the plan soon, and I will report on Ocwen’s progress in future reports.

Corrective Action Plan (CAP) for Metric 31

Update on Global Letter-dating Corrective Action Plan

As described in more detail in my previous reports, Ocwen and I agreed that seven metrics (12, 19, 20, 22, 23, 27 and 30) would be deemed failures for the third quarter 2014 due to Ocwen’s letter-dating issues. Ocwen has addressed the letter-dating issues through a global CAP.1

In previous testing periods, I reported that Ocwen was in compliance with Metric 12. For Metrics 19, 20, 22, 23, 27 and 30, the IRG’s testing resumed as of the third quarter 2015, and my professionals and I have determined that these deemed fails due to the letter-dating issues are cured. My professionals and I will continue testing and report to the Monitoring Committee, the Court and the public on future results.

Corrective Action Plan (CAP) for Global Letter-dating Issues

Conclusion

Ocwen has made demonstrable progress in its efforts to improve its compliance with the Settlement. However, as evidenced by the two fails reported in the final quarter 2015, there is still work to be done for Ocwen to fully comply.

My professionals and I will continue to test Ocwen on all metrics through February 2017. The seven metrics impacted by the letter-dating issues outlined above and in previous reports (Metrics 12, 19, 20, 22, 23, 27 and 30) will undergo extended testing through December 31, 2017.

I look forward to reporting to the Court and to the public as I continue my work to ensure Ocwen treats borrowers fairly as outlined in the National Mortgage Settlement.

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CLOUDED TITLES | Nevada Supreme Court hears case on real estate crisis foreclosure sales

CLOUDED TITLES | Nevada Supreme Court hears case on real estate crisis foreclosure sales

LAS VEGAS REVIEW-

CARSON CITY — A case that could affect the validity of thousands of Las Vegas foreclosure sales stemming from the real estate crisis that began nearly a decade ago was heard Thursday by the Nevada Supreme Court.

The court is now expected to rule on the question of the constitutionality of the nonjudicial foreclosure process used by investors and speculators to acquire homes at a fraction of their value by paying off liens held by homeowners associations.

[…]

Because of the legal disputes and questions over ownership, none of the properties can be sold because they have clouded titles. It will take additional rulings from Nevada and federal courts to finally resolve the issue for all of the involved parties.

[LAS VEGAS REVIEW]

image source and available for purchase: AllPosters.com

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Wiping out housing’s ‘zombies’: Banks sell off foreclosed remnants of crash

Wiping out housing’s ‘zombies’: Banks sell off foreclosed remnants of crash

CNBC-

Halloween isn’t here just yet, but the zombies are already multiplying by the thousand — zombie foreclosures.

After having left the worst remnants of the housing crash in foreclosure limbo-land, banks are now taking those vacant, foreclosed homes and selling them at a fast clip. They are the so-called zombie foreclosures.

The result is that the numbers have shifted. Vacant homes in the foreclosure process are expected to drop 9 percent in the third quarter from a year ago, but vacant bank-owned properties are expected to jump 67 percent during the period, according to ATTOM Data Solutions. There are now just over 46,600 vacant bank-owned properties (known as REOs) littering neighborhoods nationally.

[CNBC]

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5,300 Wells Fargo employees fired for creating over 2 million phony accounts

5,300 Wells Fargo employees fired for creating over 2 million phony accounts

CNN-

Everyone hates paying bank fees. But imagine paying fees on a ghost account you didn’t even sign up for.

That’s exactly what happened to Wells Fargo customers nationwide.

On Thursday, federal regulators said Wells Fargo employees secretly created millions of unauthorized bank and credit card accounts — without their customers knowing it — since 2011.

[CNN]

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Consumer Financial Protection Bureau Fines Wells Fargo $100 Million for Widespread Illegal Practice of Secretly Opening Unauthorized Accounts

Consumer Financial Protection Bureau Fines Wells Fargo $100 Million for Widespread Illegal Practice of Secretly Opening Unauthorized Accounts

Bank Incentives to Boost Sales Figures Spurred Employees to Secretly Open Deposit and Credit Card Accounts

WASHINGTON, D.C. — Today the Consumer Financial Protection Bureau (CFPB) fined Wells Fargo Bank, N.A. $100 million for the widespread illegal practice of secretly opening unauthorized deposit and credit card accounts. Spurred by sales targets and compensation incentives, employees boosted sales figures by covertly opening accounts and funding them by transferring funds from consumers’ authorized accounts without their knowledge or consent, often racking up fees or other charges. According to the bank’s own analysis, employees opened more than two million deposit and credit card accounts that may not have been authorized by consumers. Wells Fargo will pay full restitution to all victims and a $100 million fine to the CFPB’s Civil Penalty Fund. The bank will also pay an additional $35 million penalty to the Office of the Comptroller of the Currency, and another $50 million to the City and County of Los Angeles.

“Wells Fargo employees secretly opened unauthorized accounts to hit sales targets and receive bonuses,” said CFPB Director Richard Cordray. “Because of the severity of these violations, Wells Fargo is paying the largest penalty the CFPB has ever imposed. Today’s action should serve notice to the entire industry that financial incentive programs, if not monitored carefully, carry serious risks that can have serious legal consequences.”

The full text of the CFPB’s Consent Order can be found at:http://files.consumerfinance.gov/f/documents/092016_cfpb_WFBconsentorder.pdf

Wells Fargo, headquartered in Sioux Falls, S.D., is one of the biggest banks in the country and offers many consumer financial products and services, including savings and checking accounts, credit cards, debit and ATM cards, and online-banking services. In recent years, the bank has sought to distinguish itself in the marketplace as a leader in “cross selling” these products and services to existing customers who did not already have them. When cross selling is based on efforts to generate more business from existing customers based on strong customer satisfaction and excellent customer service, it is a common and accepted business practice. But here the bank had compensation incentive programs for its employees that encouraged them to sign up existing clients for deposit accounts, credit cards, debit cards, and online banking, and the bank failed to monitor the implementation of these programs with adequate care.

According to today’s enforcement action, thousands of Wells Fargo employees illegally enrolled consumers in these products and services without their knowledge or consent in order to obtain financial compensation for meeting sales targets. The Dodd-Frank Wall Street Reform and Consumer Protection Act prohibits unfair, deceptive, and abusive acts and practices. Wells Fargo’s violations include:

  • Opening deposit accounts and transferring funds without authorization: According to the bank’s own analysis, employees opened roughly 1.5 million deposit accounts that may not have been authorized by consumers. Employees then transferred funds from consumers’ authorized accounts to temporarily fund the new, unauthorized accounts. This widespread practice gave the employees credit for opening the new accounts, allowing them to earn additional compensation and to meet the bank’s sales goals. Consumers, in turn, were sometimes harmed because the bank charged them for insufficient funds or overdraft fees because the money was not in their original accounts.
  • Applying for credit card accounts without authorization: According to the bank’s own analysis, Wells Fargo employees applied for roughly 565,000 credit card accounts that may not have been authorized by consumers. On those unauthorized credit cards, many consumers incurred annual fees, as well as associated finance or interest charges and other fees.
  • Issuing and activating debit cards without authorization: Wells Fargo employees requested and issued debit cards without consumers’ knowledge or consent, going so far as to create PINs without telling consumers.
  • Creating phony email addresses to enroll consumers in online-banking services: Wells Fargo employees created phony email addresses not belonging to consumers to enroll them in online-banking services without their knowledge or consent.

Enforcement Action

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. Today’s order goes back to Jan. 1, 2011. Among the things the CFPB’s order requires of Wells Fargo:

  • Pay full refunds to consumers: Wells Fargo must refund all affected consumers the sum of all monthly maintenance fees, nonsufficient fund fees, overdraft charges, and other fees they paid because of the creation of the unauthorized accounts. These refunds are expected to total at least $2.5 million. Consumers are not required to take any action to get refunds to which they are entitled.
  • Ensure proper sales practices: Wells Fargo must hire an independent consultant to conduct a thorough review of its procedures. Recommendations may include requiring employees to undergo ethical-sales training and reviewing the bank’s performance measurements and sales goals to make sure they are consistent with preventing improper sales practices.
  • Pay a $100 million fine: Wells Fargo will pay a $100 million penalty to the CFPB’s Civil Penalty Fund. Today’s penalty is the largest the CFPB has imposed to date.

###
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 www.consumerfinance.gov.

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Ober v. TOWN OF LAUDERDALE-BY-THE-SEA, Fla: 4DCA | The lis pendens statute serves to discharge liens that exist or arise prior to the final judgment of foreclosure unless the appropriate steps are taken to protect those interests. However, it does not affect liens that accrue after that date.

Ober v. TOWN OF LAUDERDALE-BY-THE-SEA, Fla: 4DCA | The lis pendens statute serves to discharge liens that exist or arise prior to the final judgment of foreclosure unless the appropriate steps are taken to protect those interests. However, it does not affect liens that accrue after that date.

JAMES OBER, Appellant,
v.
TOWN OF LAUDERDALE-BY-THE-SEA, a Florida Municipality, Appellee.

No. 4D14-4597.
District Court of Appeal of Florida, Fourth District.

August 24, 2016.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch, IV, Judge; L.T. Case No. 14-006782 (05).

Manuel Farach of McGlinchey Stafford, Fort Lauderdale, for appellant.

Susan L. Trevarthen, Laura K. Wendell, and Eric P. Hockman of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee.

Heather K. Judd and Jordan R. Wolfgram, St. Petersburg, for Amicus Curiae City of St. Petersburg.

Alexander L. Palenzuela of Law Offices of Alexander L. Palenzuela, P.A., Miami, for Amicus Curiae City of Coral Gables.

FORST, J.

This case involves the application of Florida’s lis pendens statute, section 48.23, Florida Statutes, to liens placed on property between a final judgment of foreclosure and the judicial sale. We agree with the Appellee, Town of Lauderdale-by-the-Sea (“the Town”), and hold that liens placed on property during this time window are not discharged by section 48.23. We affirm without discussion with respect to any other challenges to the trial court’s entry of summary judgment.

Background

On November 26, 2007, a non-party bank recorded a lis pendens on the subject property as part of a foreclosure proceeding against a non-party homeowner. On September 22, 2008, the bank obtained a final judgment of foreclosure. Beginning on July 13, 2009, and continuing through October 27, 2011, the Town recorded a total of seven liens on the property related to various code violations.[1] These liens all stemmed from violations occurring after the final judgment was entered.

On September 27, 2012, the property was sold at a foreclosure sale to the Appellant, James Ober (“the Property Owner”). Shortly thereafter, the clerk issued the certificate of title. Beginning on February 26, 2013, the Town imposed three more liens on the property.

The Property Owner filed suit to quiet title, attempting to strike the liens against his property. The Town counterclaimed to foreclose the liens. Both parties moved for summary judgment. The trial court granted the Town’s motion (and denied the Property Owner’s motion) and entered a final judgment of foreclosure on the ten liens. This appeal followed.

Analysis

The issue in this case is the interpretation of a statute, which we review de novo. Brown v. City of Vero Beach, 64 So. 3d 172, 174 (Fla. 2011). The statute at issue here states, in relevant part:

[T]he recording of . . . lis pendens . . . constitutes a bar to the enforcement against the property described in the notice of all interests and liens . . . unrecorded at the time of recording the notice unless the holder of any such unrecorded interest or lien intervenes in such proceedings within 30 days after the recording of the notice. If the holder of any such unrecorded interest or lien does not intervene in the proceedings and if such proceedings are prosecuted to a judicial sale of the property described in the notice, the property shall be forever discharged from all such unrecorded interests and liens. . . .

§ 48.23(1)(d), Fla. Stat. This statute “not only bars enforcement of an accrued cause of action, but may also prevent the accrual of a cause of action when the final element necessary for its creation occurs beyond the time period established by the statute.” Adhin v. First Horizon Home Loans, 44 So. 3d 1245, 1253 (Fla. 5th DCA 2010).

By its terms, section 48.23(1)(d) does not provide an end date for the lis pendens. In order to avoid the absurd result of a lis pendens precluding any lien from ever being placed on the property into perpetuity, see Maddox v. State, 923 So. 2d 442, 448 (Fla. 2006) (avoiding absurd results), the parties both urge this Court to apply an implied end date to the lis pendens. The Town argues that the lis pendens applies only to liens existing or accruing prior to the date of final judgment, whereas the Property Owner argues that the lis pendens continues to the date of the judicial sale, which in this case was over four years later.

In attempting to discern which of these dates was intended by the legislature to be the operative “shut off” date, we read the statute “in the context in which it is found and in conjunction with related statutory provisions.” Maddox, 923 So. 2d at 448. One of the related provisions is section 48.23(1)(a), which states that “[a]n action in any of the state or federal courts in this state operates as a lis pendens . . . only if a notice of lis pendens is recorded.” The plain meaning of this provision indicates that the action itself is the actual lis pendens, which takes effect if and when a notice is filed. The lis pendens therefore logically must terminate along with the action. The “action” in this case was the foreclosure action initiated by the non-party bank, which terminated thirty days after the court’s issuance of a final judgment.[2]

Although it does not appear to have been a litigated issue, this conclusion has been reached by this Court and other District Courts of Appeal in the past. See U.S. Bank Nat’l Ass’n v. Quadomain Condo. Ass’n, 103 So. 3d 977, 979-80 (Fla. 4th DCA 2012) (“[T]he court presiding over the action which created the lis pendens has exclusive jurisdiction to adjudicate any encumbrance or interest in the subject property from the date the lis pendens is recorded to the date it enters final judgment” (emphasis added)); Seligman v. N. Am. Mortg. Co., 781 So. 2d 1159, 1196 (Fla. 4th DCA 2001) (“[T]he court in the dissolution proceeding had jurisdiction over the property until final judgment . . . .” (emphasis added)); Hotel Eur., Inc. v. Aouate, 766 So. 2d 1149, 1151 (Fla. 3d DCA 2000) (“Because a Final Judgment has been entered, the instant case is no longer pending and thus the Notice of Lis Pendens is no longer valid”); Marchand v. De Soto Morg. Co., 149 So. 2d 357, 359 (Fla. 2d DCA 1963) (“[T]he doctrine of lis pendens is the jurisdiction, power or control which courts acquire of property involved in a suit pending the continuance of the action and until final judgment therein” (emphasis added)). The Florida Supreme Court has also used the “until final judgment” phrase when describing the scope of a lis pendens. De Pass v. Chitty, 105 So. 148, 149 (Fla. 1925). We find these authorities both controlling and persuasive, and hold that a lis pendens bars liens only through final judgment, and does not affect the validity of liens after that date, even if they are before the actual sale of the property.

We do note, however, that this case appears to reveal a misstatement of the law in Form 1.996(a) of the Florida Rules of Civil Procedure. That rule provides an example foreclosure judgment, and includes a provision stating: “On filing the certificate of sale, defendant(s) and all persons claiming under or against defendant(s) since the filing of the notice of lis pendens shall be foreclosed.” Fla. R. Civ. P. Form 1.996(a). This language suggests that all liens from the filing of the lis pendens until the certificate of sale is filed are discharged. Although we recognize the conflict between the form and our holding in this case, to hold otherwise would be to create conflict between this decision and both the legislative intent and prior case law. But the form has been, and could again, be modified “to bring it into conformity with current statutory provisions and requirements . . . and better conform to prevailing practices in the courts.” In re Amendments to the Florida Rules of Civil Procedure-Form 1.996 (Final Judgment of Foreclosure), 51 So. 3d 1140, 1140 (Fla. 2010). Such an amendment may be appropriate here.

Conclusion

The lis pendens statute serves to discharge liens that exist or arise prior to the final judgment of foreclosure unless the appropriate steps are taken to protect those interests. However, it does not affect liens that accrue after that date. The ten liens that were involved in the case before us were all recorded and based on conduct which occurred after the date of the first final judgment. The trial court therefore did not err in entering summary judgment in favor of the Town foreclosing those liens.

Affirmed.

GROSS and KLINGENSMITH, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[1] The Town also recorded one lien before the final judgment was issued, but concedes that this lien was discharged.

[2] When no appeal is taken, an action terminates when the time for appeal expires. S. Title Research Co. v. King, 186 So. 2d 539, 544-45 (Fla. 4th DCA 1966). That time is 30 days after rendition of the order. Fla. R. App. P. 9.110(b). Here, no appeal from the final judgment in the original action was taken. There is also no question in this case that the liens at issue accrued after this 30-day period, making the precise distinction between the date of the final judgment and the date of the termination of the action irrelevant under the facts before us.

 

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A Crisis of Missed Opportunities? Foreclosure Costs and Mortgage Modification During the Great Recession

A Crisis of Missed Opportunities? Foreclosure Costs and Mortgage Modification During the Great Recession


Stuart A. Gabriel

University of California, Los Angeles – Anderson School of Management

 

Matteo M. Iacoviello

Federal Reserve Board – Trade and Financial Studies

 

Chandler Lutz

Copenhagen Business School

June 25, 2016
Abstract:

This paper investigates the housing and broader economic effects of the 2000s crisis-period California Foreclosure Prevention Laws (CFPLs). The CFPLs encouraged lenders to modify mortgage loans by increasing the required time and pecuniary costs of foreclosure. Using the Synthetic Control Methodology, we find that the CFPLs prevented 335,000 California foreclosures, equivalent to a 30% reduction during the treatment period. These effects did not reverse after the conclusion of the policy, implying that the CFPLs were not a stopgap measure that simply delayed foreclosures until a later date. Our analysis also shows that the CFPLs increased house prices by 5 percent and in doing so created $250 billion of housing wealth. Findings further indicate that these gains in housing wealth did not translate into increased durable consumption as measured by auto sales. Disaggregated county and zip-code level estimates reveal that the CFPL house price increases were markedly higher in the hard hit areas of Southern California. Altogether, results suggest that the CFPLs were substantially more effective than the US Government’s HAMP Program in mitigating foreclosures and stabilizing the housing markets.
Down Load PDF of This Case

 

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