November, 2016 | FORECLOSURE FRAUD | by DinSFLA

Archive | November, 2016

Trump to tap billionaire Wilbur Ross for Commerce secretary

Trump to tap billionaire Wilbur Ross for Commerce secretary

CNN Money-

Billionaire investor Wilbur Ross is President-elect Donald Trump’s pick for Commerce secretary, two sources tell CNN.

The nomination is expected to be rolled out as part of an economic team announcement on Wednesday, when Trump will likely name Steven Mnuchin as treasury secretary.

The Cabinet-level position, which requires Senate confirmation, serves as the government’s chief business advocate. The Commerce secretary is a liaison between companies and the White House. Ross could play a key role in what are expected to be Trump’s signature economic policy issues like trade and jobs.

[CNN MONEY]

image: Insider Monkey

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Steven Mnuchin Is Donald Trump’s Expected Choice for Treasury Secretary

Steven Mnuchin Is Donald Trump’s Expected Choice for Treasury Secretary

NYT-

WASHINGTON — Steven Terner Mnuchin, a financier with deep roots on Wall Street and in Hollywood but no government experience, is expected to be named Donald J. Trump’s Treasury secretary as soon as Wednesday, people close to the transition say.

Mr. Mnuchin, 53, was the national finance chairman for Mr. Trump’s campaign. He began his career at Goldman Sachs, where he became a partner, before creating his own hedge fund, moving to the West Coast and entering the first rank of movie financiers by bankrolling hits like the “X-Men” franchise and “Avatar.”

As Treasury secretary, Mr. Mnuchin would play an important role in shaping the administration’s economic policies, including a package of promised tax cuts, increased spending on infrastructure and changes in the terms of foreign trade. He could also help lead any effort to roll back President Obama’s nuclear deal with Iran and opening to Cuba by reimposing sanctions on Tehran and Havana.

[NYT]

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Trump is meeting with an ex-bank CEO who wants to abolish the Federal Reserve and return to the gold standard

Trump is meeting with an ex-bank CEO who wants to abolish the Federal Reserve and return to the gold standard

Business Insider-

As President-elect’s Donald Trump’s transition rolls on, more and more attention is being paid to possible selections for a variety of high-ranking positions and meetings that might help decide these appointments.

On Monday, Trump will meet with John Allison, the former CEO of the bank BB&T and of the libertarian think tank the Cato Institute.

There have been reports that Allison is being considered for Treasury secretary.

Trump’s has on the campaign trail questioned the future of the Federal Reserve’s political independence, but Allison takes that rhetoric a step further. While running the the Cato Institute, Allison wrote a paper in support of abolishing the Fed.

[BUSINESS INSIDER]

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Pro se PREVAILS on “fraud count” | Paul Farah v. Wells Fargo Home Mortgage | AFFIRMED in part, VACATED in part, and REMANDED | Court of Appeals for the Ninth Circuit

Pro se PREVAILS on “fraud count” | Paul Farah v. Wells Fargo Home Mortgage | AFFIRMED in part, VACATED in part, and REMANDED | Court of Appeals for the Ninth Circuit

Paul Farah v. Wells Fargo Home Mortgage

(9th Cir. 2016)

Court of Appeals for the Ninth Circuit

View original: From the court   |   Our backup
 . . .

In light of these additional allegations regarding nondisclosure of material information, we conclude that the district court erred in dismissing Farah’s fraud claim against Wells Fargo Home Mortgage. ……(setting forth circumstances, including exclusive knowledge or partial suppression of material facts, in which nondisclosure constitutes actionable fraud);

Accordingly, we vacate the judgment as to Farah’s fraud claim against Wells Fargo Home Mortgage and remand for further consideration consistent with this disposition.

AFFIRMED in part, VACATED in part, and REMANDED.


3
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Green Tree Servicing, L.L.C. v. Easley | Robo-witness testimony dissected and DESTROYED | Judgment reversed and cause remanded

Green Tree Servicing, L.L.C. v. Easley | Robo-witness testimony dissected and DESTROYED | Judgment reversed and cause remanded

Green Tree Servicing, L.L.C. v. Easley

(Ohio Ct. App. 2016)

View original: From the court   |   Our backup

 

Ohio Court of Appeals


. . .

{¶14} As indicated above, Mr. Easley’s Note was endorsed in 
blank, and, as such, the holder of his Note is its current 
possessor. See Bank of Am., N.A. v. McCormick, 9th Dist.
Summit No. 26888, 2014-Ohio-1393, ¶ 8. However, Ms. 
Kessner’s affidavit, submitted on behalf of Green Tree, 
failed to: (1) establish that Ms. Kessner had personal 
knowledge of Mr. Easley’s loan file; (2) aver that Ms. 
Kessner personally reviewed the original Note, Mortgage,
and assignments in Mr. Easley’s loan file, or, that true 
and accurate copies of those documents were attached to 
the motion for summary judgment; (3) 
prove that Ditech Financial LLC and

Green Tree Servicing LLC are the same legal entity; 
and (4) establish that Ditech Financial LLC
FKA Green Tree Servicing LLC has possession of the 
original Note.

 {¶15} Accordingly, the materials submitted by Green Tree along 
with its motion for summary judgment failed to demonstrate an 
absence of a dispute of fact that it had standing at the time it 
filed its complaint. See Dvorak at ¶ 16.

       {¶16} Mr. Easley’s first assignment of error is 
sustained.

 

III

       {¶18} Mr. Easley’s first assignment of error is 
sustained and his second assignment of
error is moot. The judgment of the Summit County Court 
of Common Pleas is reversed and the cause remanded for 
further proceedings consistent with this opinion.
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Wells Fargo tries to kill fake account lawsuit

Wells Fargo tries to kill fake account lawsuit

CNN-

Wells Fargo may be sounding a more friendly tone these days, but the big bank is still playing legal hard ball with victims in the fake account scandal.

Wells Fargo (WFC) customers have opened a class action lawsuit against the bank over the opening of unauthorized accounts in their names.

But Wells Fargo is trying to derail that lawsuit. The bank on Wednesday asked the U.S. District Court in Utah, where the class action suit was filed, to force dozens of those customers to resolve their claims quietly in closed-door arbitration instead of open court.

[CNN MONEY]

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Posted in STOP FORECLOSURE FRAUD2 Comments

Feds Give Up Trying To Hold Bank Of America Accountable For Countrywide’s “Hustle” Mortgage Scam

Feds Give Up Trying To Hold Bank Of America Accountable For Countrywide’s “Hustle” Mortgage Scam

Consumerist-

A nasty four-year legal battle between the Justice Department and Bank of America over a massive mortgage-related scam run by Countrywide Financial has come to a whimpering conclusion, with the DOJ opting to not appeal its most recent defeat in the case.

Let’s take a quick spin back a decade to the final years of the adjustable-rate mortgage boom, when shady mortgage lenders — Countrywide being the most prominent — were writing home loans to applicants who would likely be unable to keep up with the payments, and then reselling those poorly underwritten loans to Fannie Mae and Freddie Mac without disclosing that they might as well have been signed by kittens using invisible ink.

Countrywide had a name for this process — the High Speed Swim Lane (HSSL or “Hustle”) — that deliberately removed many of the underwriting roadblocks intended to prevent lenders from writing toxic loans, and resulted in Fannie and Freddie buying billions of dollars in loans from the company.

[CONSUMERIST]

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FNMA v. MIRABELLA AT MIRASOL HOMEOWNERS’ASSOCIATION, INC. | FL 4DCA – we find that Mirabella was entitled to seek the entire amount of unpaid assessments because FNMA failed to “initially join” Mirabella in the FNMA mortgage foreclosure.

FNMA v. MIRABELLA AT MIRASOL HOMEOWNERS’ASSOCIATION, INC. | FL 4DCA – we find that Mirabella was entitled to seek the entire amount of unpaid assessments because FNMA failed to “initially join” Mirabella in the FNMA mortgage foreclosure.

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellant,
v.
MIRABELLA AT MIRASOL HOMEOWNERS’ ASSOCIATION, INC., Appellee.

No. 4D15-4792.
District Court of Appeal of Florida, Fourth District.
November 23, 2016.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Eli Breger, Senior Judge; L.T. Case No. 2014CA011112.

Dariel Abrahamy and Aaron Williams of Greenspoon Marder, P.A., Boca Raton, for appellant.

Ryan M. Aboud and Keith F. Backer of Backer Aboud Poliakoff & Foelster, LLP, Boca Raton, for appellee.

ROBERT W. LEE, Associate Judge.

The question in this appeal is one of first impression in Florida: which word does the word “initially” modify in the statute limiting liability of a first mortgage holder for certain homeowner association assessments? Because we believe the trial court correctly construed the statute by applying that word to the verb “join,” we affirm.

The appellant Federal National Mortgage Association (“FNMA”) obtained title to certain real property in Palm Beach County through an action foreclosing its first mortgage. At the time it filed its foreclosure action, it failed to join the appellee homeowners association (“Mirabella”) to extinguish any interest or claim Mirabella may have had in the subject property. Ultimately, four years into the mortgage foreclosure action, FNMA amended its complaint to join Mirabella.

Generally speaking, as established at common law, a junior lienholder cannot extinguish a senior lienholder’s interest in real property. Because the Mirabella Declaration of Covenants (“Declaration”) provides for a continuing lien for assessments and was recorded in the public records prior to the recording of the FNMA mortgage, the liability for assessments coming due under the recorded Declaration would have priority over the subsequently-filed mortgage under common law. LR5A-JV, LP v. Little House, LLC, 998 So. 3d 1173, 1175 n.2 (Fla. 5th DCA 2008). The Florida Legislature, however, modified the common law scheme by enacting Section 720.3085(2)(c), Florida Statutes, sometimes referred to as a “safe harbor” statute. Under this statute,

the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acquires title to a parcel by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title, shall be the lesser of:

1. The parcel’s unpaid common expenses and regular periodic or special assessments that accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or

2. One percent of the original mortgage debt.

Continuing, this subsection of the statute further provides that “[t]he limitations on first mortgagee liability . . . apply only if the first mortgagee filed suit against the parcel owner and initially joined the association as a defendant in the mortgage foreclosure action.” § 720.3085(2)(c), Fla. Stat. (emphasis added). Therefore, if Mirabella were “initially joined” in the action, FNMA would face only limited liability for assessments coming due before it took title to the property.

After FNMA gained title to the property through the foreclosure action, Mirabella brought its own lien foreclosure action against FNMA to collect all pre-title assessments due to Mirabella, without limitation. FNMA defended by arguing that it did not have to pay these assessments because it was protected by the safe harbor statute.

While Mirabella agrees that FNMA as a first mortgagee would have been able to take advantage of the limited liability statute, it argues that FNMA never sailed into the safe harbor because FNMA failed to “initially join” Mirabella in the mortgage foreclosure action. In other words, by waiting four years to join Mirabella as a defendant rather than doing so at the inception of the suit, FNMA never acquired the protection of the statute. On the other hand, FNMA argues that the word “initially” refers to the entire first action for foreclosure, and that the statute would not apply in a subsequent action such as an action to reforeclose an omitted junior lienholder. Under FNMA’s interpretation, as long as it added Mirabella as a defendant in the initial action at some point, FNMA would be protected. The trial court, however, agreed with Mirabella.

We agree with the trial court that the statute is not ambiguous. It takes no linguistic feat to determine that the adverb “initially” modifies “joined” and not “action.” If the legislature had intended the word to apply to “action,” it would have used the adjective “initial” instead of the adverb “initially” and placed it next to the phrase “mortgage foreclosure action.” Simply put, while the legislature could have provided that the safe harbor applied if the association were joined at any point in the initial mortgage foreclosure action, that is not what the legislature said.

FNMA urges that such a construction would result in an absurdity. We disagree. It is completely reasonable to conclude that the legislature, in modifying the common law position, wanted a homeowners association to be able to be involved in the case from the start so that it could have the ability to move the case along and monitor its progress. It could then notice the case for trial at an early point in the litigation. It could ask the court for mediation. As a non-profit entity, it could have attempted to minimize its loss in assessments as it is generally in an association’s best interest to move the case to a quick resolution. See Michael J. Gelfand, Condominium and Homeowners’ Association Liens, in FLORIDA CONDOMINIUM AND COMMUNITY ASSOCIATION LAW § 16.92 (The Fla. Bar ed., 2d ed. 2011).

In this case, we find that Mirabella was entitled to seek the entire amount of unpaid assessments because FNMA failed to “initially join” Mirabella in the FNMA mortgage foreclosure.

Affirmed.

CIKLIN, C.J., and TAYLOR, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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TFH 11/27 | Foreclosure Workshop #24: Tehiva v. Ocwen — A Revealing Case Study in Abusive Loan Servicing, Why Federal and State Regulation Continues To Fail, and What the Trump Administration Can and Should Immediately Do About It

TFH 11/27 | Foreclosure Workshop #24: Tehiva v. Ocwen — A Revealing Case Study in Abusive Loan Servicing, Why Federal and State Regulation Continues To Fail, and What the Trump Administration Can and Should Immediately Do About It

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 – November 27, 2016

Foreclosure Workshop #24:
Tehiva v. Ocwen — A Revealing Case Study in Abusive Loan Servicing, Why Federal and State Regulation Continues To Fail, and What the Trump Administration Can and Should Immediately Do About It

Neither hundreds of whistleblowers, nor billions of dollars in sanctions, nor occasional multi-million dollar jury awards, nor even a constant parade of back-slapping signed consent orders has yet to prevent loan servicers from continuing to callously abuse homeowners, turning our courts into collection agencies for crooks.

Why? Because no amount of federal and state regulation has been or is institutionally capable of controlling such low visibility abuses.

On this Sunday’s Foreclosure Hour we will celebrate Thanksgiving by unveiling a new proposal to restore the American dream of home ownership by a common sense combination of smart legislation and executive orders that not only could immediately end loan servicer abuses, but could easily also instantly terminate most of the foreclosure crisis in the United States.

You, our Federal and State Legislators, and Members of the incoming Trump Administration cannot afford to miss this Sunday’s Thanksgiving show.

Those who miss this important live broadcast can listen to it on the Past Broadcast Section of our Website at www.foreclosurehour.com shortly after it airs live on KHVH-AM News Radio in Honolulu and simultaneously throughout the United States on the iHeart Internet App.

.
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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Jamie Dimon himself called to urge support for the derivatives rule in the spending bill

Jamie Dimon himself called to urge support for the derivatives rule in the spending bill

WaPO-

The acrimony that erupted Thursday between President Obama and members of his own party largely pivoted on a single item in a 1,600-page piece of legislation to keep the government funded: Should banks be allowed to make risky investments using taxpayer-backed money?

The very idea was abhorrent to many Democrats on Capitol Hill. And some were stunned that the White House would support the bill with that provision intact, given that it would erase a key provision of the 2010 Dodd-Frank financial reform legislation, one of Obama’s signature achievements.

But perhaps even more outrageous to Democrats was that the language in the bill appeared to come directly from the pens of lobbyists at the nation’s biggest banks, aides said. The provision was so important to the profits at those companies that J.P.Morgan’s chief executive Jamie Dimon himself telephoned individual lawmakers to urge them to vote for it, according to a person familiar with the effort.

[WASHINGTON POST]

image: jamie_dimon Credit Reuters Yuri Gripas

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Wells Fargo accused of commencing foreclosure without a mortgage

Wells Fargo accused of commencing foreclosure without a mortgage

Penn Record-

An individual is suing Wells Fargo U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust Loan Trust, 2005-11, and Assurant, Inc., financial institution, citing alleged unjust enrichment.

Michael Earl Davis filed a complaint on Nov. 17, in the U.S. District Court for the Eastern District of Pennsylvania against the defendants alleging that they locked plaintiff out of his property without mortgage assignment.

According to the complaint, the plaintiff alleges that he suffered monetary damages. The plaintiff holds Wells Fargo U.S. Bank National Association as Trustee for the Structured Asset Investment Loan Trust Loan Trust, 2005-11, and Assurant, Inc. responsible because the defendants allegedly commenced a foreclosure action against the plaintiff without a mortgage.

[PENNRECORD]

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Lopez v. JP Morgan Chase Bank, NA | Fl 3DCA – Chase Bank failed to comply with a condition precedent to foreclosure — the notice provision of paragraph 22 of the mortgage — required the trial court to involuntarily dismiss Bayview’s foreclosure case, with prejudice

Lopez v. JP Morgan Chase Bank, NA | Fl 3DCA – Chase Bank failed to comply with a condition precedent to foreclosure — the notice provision of paragraph 22 of the mortgage — required the trial court to involuntarily dismiss Bayview’s foreclosure case, with prejudice

 

Omar G. Lopez and Yassiri Sardinas, Appellants,
v.
JP Morgan Chase Bank, N.A., Appellee.

Case No. 3D15-625.
District Court of Appeal of Florida, Third District.
Opinion filed November 16, 2016.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 12-42973, Marvin H. Gillman, Senior Judge.

Robert Flavell, P.A., and Robert Flavell, for appellants.

Kass Shuler, P.A., and Melissa A. Giasi (Tampa), for appellee.

Before WELLS, SHEPHERD and SCALES, JJ.

SCALES, J.

Appellants Omar G. Lopez and Yassiri Sardinas (together “Borrowers”) appeal a final judgment of the Miami-Dade County Circuit Court awarding a money judgment in a residential foreclosure case, in the amount of $294,685.09, to Appellee Bayview Loan Servicing, LLC (“Bayview”).[1] At the conclusion of the trial, after finding that Chase Bank had failed to comply with the mortgage’s notice provision, the trial court split Bayview’s foreclosure claim into separate claims for money damages and foreclosure. The trial court then entered a final judgment awarding Bayview money damages under the note while dismissing, without prejudice, the foreclosure claim. Because the remedy crafted by the trial court is inconsistent with the trial court’s factual finding regarding Chase Bank’s non-compliance with the mortgage’s notice provision, we are compelled to reverse.

In 2006, Chase Bank loaned Borrowers $214,139.85. The loan was memorialized with a promissory note and was secured by a mortgage encumbering Borrowers’ condominium property in Miami, Florida. Borrowers failed to make their installment payment due on May 1, 2009, or any subsequent installment payment. On October 10, 2012, Chase Bank sent Borrowers a default notice letter pursuant to paragraph 22 of the mortgage.[2]

Chase Bank’s notice letter gave Borrowers thirty-five days, or until November 14, 2012, to cure the default.[3] Chase Bank, however, filed its foreclosure complaint on October 30, 2012, without giving Borrowers at least thirty days to cure the default, as required by paragraph 22 of the mortgage. Chase Bank’s single-count complaint sought only to foreclose on the mortgage, and did not contain a separate count or claim for money damages under the promissory note.

After conducting a trial, the trial court found that Chase Bank had failed to comply with paragraph 22 of the mortgage, and that Chase Bank’s premature filing of its foreclosure complaint — prior to allowing Borrowers at least thirty days to cure the default as required by paragraph 22 of the mortgage — constituted a material failure by Bayview to establish a condition precedent to foreclosure. The trial court entered an order involuntarily dismissing Bayview’s foreclosure claim, without prejudice.[4]

Notwithstanding the trial court’s finding that Chase Bank had failed to comply with paragraph 22 of the mortgage, thereby failing to establish a condition precedent to both acceleration and foreclosure, the trial court nevertheless awarded Bayview money damages pursuant to the promissory note and entered a final judgment against Borrowers that included the loan’s fully accelerated amount of $294,685.09. Borrowers appeal the final judgment, arguing that the trial court’s unchallenged determination that Chase Bank failed to comply with the mortgage’s notice provision required a complete dismissal of the foreclosure action. Accordingly, Borrowers assert that the trial court is precluded from fashioning the alternate remedy of entering a money judgment, presumably based on the promissory note.[5]

We are guided by two recent decisions of our sister court, Miller v. Bank of N.Y. Mellon, 189 So. 3d 359 (Fla. 4th DCA 2016) and Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015).[6] The Holt court held that the lender failed to introduce evidence that it had complied with the mortgage’s notice provision. Holt, 155 So. 3d at 507. The Holt court concluded that the lender’s failure to comply with this condition precedent in the mortgage warranted “dismissal of the entire case,” rather than merely precluding the lender’s acceleration right. Id. at 507 n.4.

In Miller, the trial court, despite determining that the lender had not complied with the mortgage’s notice provision, nevertheless found that such failure precluded only the lender’s ability to accelerate, and did not affect the lender’s entitlement to past due installments. Miller, 189 So. 3d at 361. Relying on Holt, the Miller court reversed the judgment for the lender, concluding that the trial court’s determination that the lender had not complied with the mortgage’s notice provision[7] required “a complete dismissal.” Id.

It bears noting that the lender in Miller argued in its answer brief that the district court should entertain a challenge by the lender to the trial court’s ruling that the lender had failed to comply with the mortgage’s notice provision. Id. The Miller court concluded that it could not review the trial court’s determination because the lender did not file a cross appeal. Id. at 361-62. Bayview makes the identical argument to us in its answer brief. Even if we were to have reason to discredit the trial court’s conclusion that Chase Bank failed to comply with paragraph 22 of the mortgage, or that Chase Bank’s non-compliance was material, these issues have not been preserved for review by cross appeal. See Webb Gen. Contracting, Inc. v. PDM Hydrostorage, Inc., 397 So. 2d 1058, 1059-60 (Fla. 3d DCA 1981) (“The function of a cross-appeal is to call into question error in the judgment appealed, which, although substantially favorable to the appellee, does not completely accord the relief to which the appellee believes itself entitled.”)

The trial court’s factual determination that Chase Bank failed to comply with a condition precedent to foreclosure — the notice provision of paragraph 22 of the mortgage — required the trial court to involuntarily dismiss Bayview’s foreclosure case, with prejudice, and precluded the trial court from fashioning the unpled, alternate remedy reflected in the judgment on appeal. Therefore, we reverse the final judgment, and remand for entry of an order of involuntary dismissal with prejudice.

Reversed and remanded with instructions.

WELLS, Judge, specially concurring.

I agree with majority’s conclusion that on the facts of this case the trial court could not fashion the alternate remedy of a money judgment in the bank’s favor where a prayer for such relief was not pled in the underlying complaint. I also agree that this case must be reversed and remanded for entry of an order of involuntary dismissal. I do so because the bank failed to file a notice of cross appeal, thereby failing to preserve for appellate review the trial court’s determination that the bank had not complied with the mortgage’s notice provision. But for the bank’s failure to cross appeal this issue, I would reverse for entry of final judgment of foreclosure in the bank’s favor for the reasons that follow. I also write separately to emphasize that although the majority agrees with the trial court that this matter should be dismissed with prejudice, the bank is not precluded from filing another mortgage foreclosure action on a subsequent payment default for the reasons set forth in this court’s recent en banc decision in Deutsche Bank Trust Co. Americas v. Beauvais, 188 So. 3d 938 (Fla. 3d DCA 2016) (en banc).

Under Florida Rule of Civil Procedure 1.120(c), while a plaintiff may generally allege the occurrence or performance of conditions precedent to filing suit, a defendant’s denial of same must be pled specifically and with particularity:

Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

The underlying purpose of this special pleading rule is “to ensure that the parties in civil litigation are fully apprised, prior to trial, whether compliance or occurrence of a condition precedent is an issue to be proven at trial and that the party that is presumably in a better position to identify a noncompliance or nonoccurrence does so within its pleading.” Bank of Am., Nat’l Ass’n v. Asbury, 165 So. 3d 808, 810-11 (Fla. 2d DCA 2015). Therefore, in the context of a mortgage foreclosure action, as is the case in all civil cases, a defendant’s “failure to plead a timely, specific denial of whether a condition precedent ha[s] occurred or been fulfilled amount[s] to a waiver of that defense.” Id. at 810. Here, the borrower’s affirmative defense fails in that it is neither made specifically nor with particularity.

The borrower’s relevant affirmative defense stated as follows:

As and for a 2nd Affirmative Defense, Plaintiff is precluded from obtaining relief due to the fact that it has failed to satisfy all conditions precedent. Specifically, Plaintiff has failed to comply with the notice requirements in form, substance and delivery as required by the note and/or mortgage. Defendants specifically deny receiving a demand, breach and/or acceleration letter as alleged in the complaint.

As was the case in Godshalk v. Countrywide Home Loans Servicing, L.P., 81 So. 3d 626, 626 (Fla. 5th DCA 2012), the first half of the affirmative defense— which merely alleges that the bank had failed to comply with any of the notice requirements set forth in the note and mortgage—is no more than a “shotgun denial” which, by itself, failed to apprise the bank which of the myriad of notices it had failed to comply with and in what manner. This was neither sufficiently specific nor particular as required by rule 1.120(c). Id. (finding borrower’s allegation that the bank had not provided “any of the notices required by the [mortgage] document” failed to satisfy rule 1.120(c)).

To the extent the last sentence of the affirmative defense asserted here provides any insight as to the particular notice requirement with which the bank purportedly failed to comply, the transcripts of the bench trial confirm that the borrower’s focus was exclusively on paragraph 22 of the mortgage at issue. Paragraph 22 provides that the bank shall give notice to the borrower prior to acceleration and sets forth what should be specified in the breach/demand letter. It is this letter that the borrowers specifically alleged that they had never received in their affirmative defense. However, at the bench trial, the borrowers did not contest that they had actually received such a breach letter. Nor did they contest the method of delivery, form or substance of the letter provided for in paragraph 22.

Rather, without ever specifically citing to it at trial, the borrowers essentially argued that the bank had failed to comply with paragraph 20 of the mortgage, which provides that the bank may not bring a foreclosure action against the borrower until it has given the borrower notice that he or she is in breach and a “reasonable period” to cure that breach—the reasonable period being the time for cure set forth in the breach letter:

20. Sale of Note; Change of Loan Servicer; Notice of a Grievance

. . . .

Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any date owed by reason of, this Security instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action. If Applicable Law provides a time period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph. The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provision of this Section 20.

Thus, but for the bank’s failure to file a notice of cross appeal as to this issue, I would find that the borrowers’ failure to identify paragraph 20 as the condition precedent and to specify how the bank failed to comply with it resulted in a waiver of their affirmative defense. See Deutsche Bank Nat’l Trust Co. v. Quinion, 41 Fla. L. Weekly D177, 2016 WL 166648 at *3 (Fla. 2d DCA Jan. 15, 2016) (stating that “to construct a proper denial under . . . rule [1.120(c)], a defendant must, at a minimum, identify both the nature of the condition precedent and the nature of alleged noncompliance or nonoccurrence”); Asbury, 165 So. 3d at 810 (recognizing that the “defendant’s failure to identify a specific condition precedent within its pleading results in a waiver of the defense, [and] emanates from the mandatory language found in rule 1.120(c)” that a denial must be made specifically and with particularity).

Though the bank is precluded from raising this issue and though this matter is being dismissed with prejudice for the reasons set forth by the majority, as this court recently explained in Beauvais, 188 So. 3d at 938, the bank is not precluded from accelerating the loan based upon a subsequent default, filing another foreclosure action and collecting on the defaulted promissory note.

Not final until disposition of timely filed motion for rehearing.

[1] J.P. Morgan Chase Bank, N.A. (“Chase Bank”), the original lender, filed the mortgage foreclosure complaint in 2012. During the pendency of the trial, Chase Bank assigned its interest in the promissory note and mortgage to Bayview. On April 24, 2014, the trial court granted an order substituting Bayview as the party plaintiff.

[2] Paragraph 22 of the mortgage states, in pertinent part:

22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument. . . . The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the property. . . . If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. (emphasis supplied)

[3] In pertinent part, Chase Bank’s notice provides: “If you fail to cure the default on or before November 14, 2012, Chase may accelerate the maturity of the Loan, declare all sums secured by the [mortgage] immediately due and payable, and commence foreclosure by judicial proceedings. . . .”

[4] As discussed more fully below, Bayview did not file a cross appeal in this case to challenge this finding.

[5] The record is unclear as to why the trial court fashioned this alternate remedy for Bayview after making its ruling that Bayview’s foreclosure claim required dismissal. Further, and on a related note, we are puzzled as to why the dismissal of the foreclosure claim was “without prejudice.” A trial court’s involuntary dismissal after a trial on the merits operates as an adjudication that, ordinarily, is “with prejudice.” Fla. R. Civ. P. 1.420(b). Our holding obviates the need to speculate about these issues. Suffice to say, the trial court’s remedy — coupling a dismissal without prejudice of the foreclosure claim with a final money judgment on the promissory note — essentially adjudicated an unpled claim for breach of promissory note and therefore was error. See, e.g., Bank of N.Y. Mellon v. Reyes, 126 So. 3d 304, 309 (Fla. 3d DCA 2013).

[6] We note that the trial court did not have the benefit of these decisions.

[7] While paragraph 22 of the mortgage in our case differs somewhat from its counterparts in both Holt and Miller, all of these provisions plainly establish a condition precedent to foreclosure; that is, before the lender may institute a judicial proceeding under the mortgage, the borrower must receive notice of a right to cure the default.

 

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SOUTHWART v. THE BANK OF NEW YORK | FL 4DCA- The bank submitted an unauthenticated notice of default in support of its motion

SOUTHWART v. THE BANK OF NEW YORK | FL 4DCA- The bank submitted an unauthenticated notice of default in support of its motion

KATHLEEN ANN SOUTHWART a/k/a KATHLEEN SOUTHWART, Appellant,
v.
THE BANK OF NEW YORK, AS INDENTURE, TRUSTEE FOR THE ENCORE CREDIT RECEIVABLES TRUST 2005-2, and DONALD SOUTHWART, SEMINOLE LAKES HOMEOWNER’S ASSOCIATION, INC., and DAVID SOUTHWART, Appellees.

No. 4D14-3462.
District Court of Appeal of Florida, Fourth District.

November 16, 2016.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Judge; L.T. Case No. 502012CA013490XXXXMB.

Kathleen Southwart, Royal Palm Beach, pro se.

Joseph A. Apatov of McGlinchey Stafford, Fort Lauderdale, for appellee The Bank of New York, as Indenture, Trustee for the Encore Credit Receivables Trust 2005-2.

PER CURIAM.

The Bank of New York filed a foreclosure complaint against appellant. In appellant’s answer, appellant denied the bank had complied with the conditions precedent. Specifically, appellant alleged that the bank had failed to mail the notice of default, mail a timely notice of default, and include the requisite language within the notice of default. Additionally, appellant raised failure to comply with the conditions precedent as well as lack of standing as affirmative defenses.

The bank moved to strike appellant’s affirmative defenses. The trial court granted the bank’s motion. Subsequently, the bank moved for summary judgment. The bank stated it had complied with the conditions precedent of the mortgage, and attached an unauthenticated default letter as well as a copy of the envelope addressed to appellant with a tracking number. The lower court granted summary judgment. Appellant appeals.

We review an order granting summary judgment de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

We conclude that the bank did not meet its burden for summary judgment. The bank submitted an unauthenticated notice of default in support of its motion. This is insufficient. See DiSalvo v. SunTrust Mortg., Inc., 115 So. 3d 438, 339-40 (Fla. 2d DCA 2013); see also BiFulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which are not `sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”).

The bank argues that appellant’s affirmative defenses were not properly before the lower court because the court had previously struck them. However, the lower court had not struck appellant’s answer, which denied that the bank complied with the conditions precedent. Furthermore, appellant’s denial was adequate under Florida Rule of Civil Procedure 1.120(c). Thus, the matter was properly before the trial court. See DiSalvo, 115 So. 3d at 440.

Finally, we also conclude the lower court erred in striking appellant’s affirmative defenses that alleged failure to comply with conditions precedent and lack of standing. Appellant’s affirmative defenses were legally sufficient, and “[w]here . . . a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Seale v. Regions Bank, 121 So. 3d 649, 650 (Fla. 4th DCA 2013) (quoting Gonzalez v. NAFH Nat’l Bank, 93 So. 3d 1054, 1057 (Fla. 3d DCA 2012)).

We therefore reverse and remand for further proceedings consistent with this opinion. As for the remaining issues on appeal, we find them to be without merit and affirm without comment.

Reversed and remanded.

MAY, GERBER and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Foreclosure Cash For Keys Not Taxable As Service Income

Foreclosure Cash For Keys Not Taxable As Service Income

Fortune-

Sometimes it seems the IRS is kicking people when they are down.That is how I saw the case of Karl Bobo who was in Tax Court over a deficiency of $7,175 for the year 2012.

Cash For Keys

The case is about the proper tax treatment of “cash for keys” programs.  Elizabeth Weintraub explains how the programs work in Cash for Keys for Homeowners in Foreclosure.

Cash for keys is a way for homeowners in foreclosure — or tenants living in foreclosed homes — to receive cash in exchange for surrendering the keys and vacating the property. A bank generally reaches an agreement with the occupants of a foreclosed home, which requires the home to be cleaned and left in good condition. The agreement typically sets forth a specific date that the home will be vacated, including a promise from the occupants that they will not: Vandalize the home – Strip the home of light fixtures, appliance or copper – Leave pets behind

That last one about the pets kind of shocked me, but someone I know who cares a lot about animals told me that it happens a lot. Enough so that Elizabeth Weintraub also wrote Why Foreclosed Home Owners Abandon Pets, but I have a tax blog to run here, so I’ll have to move on.

[FORTUNE]

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TFH 11/20 | Foreclosure Workshop #23: Special Checklist of Twenty Proven Ways of Bulldozing Through a Foreclosing Mortgagee’s Dismissal and Summary Judgment Firewalls

TFH 11/20 | Foreclosure Workshop #23: Special Checklist of Twenty Proven Ways of Bulldozing Through a Foreclosing Mortgagee’s Dismissal and Summary Judgment Firewalls

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

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Sunday – November 20, 2016

Foreclosure Workshop #23: Special Checklist of Twenty Proven Ways of Bulldozing Through a Foreclosing Mortgagee’s Dismissal and Summary Judgment Firewalls
———————

In order to prevail in foreclosure proceedings by winning at trial or securing an attractive settlement a mortgage borrower must first usually survive a succession of motions to dismiss and motions for summary judgment.

The Foreclosure Hour presents a useful checklist for pro se borrowers as well as foreclosure defense counsel summarizing proven ways of defeating dismissal and summary judgment motions in many jurisdictions.

Those who miss this important live broadcast can listen to it on the Past Broadcast Section of our Website at www.foreclosurehour.com shortly after it airs live on KHVH-AM News Radio in Honolulu and simultaneously throughout the United States on the iHeart Internet App.

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Host: Gary Dubin Co-Host: John Waihee

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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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OneWest Bank shut out nonwhite borrowers while owned by Steve Mnuchin-led group, advocates say

OneWest Bank shut out nonwhite borrowers while owned by Steve Mnuchin-led group, advocates say

LA TIMES-

Two California advocacy groups have asked federal housing regulators to investigate Pasadena’s OneWest Bank over allegations that it discriminated against or failed to serve minority communities.

The allegations lodged with the U.S. Department of Housing and Urban Development build on a multitude of earlier complaints against the bank. They come as former OneWest Chairman Steve Mnuchin is rumored to be a leading candidate for the post of U.S. Treasury secretary under President-elect Donald Trump. Mnuchin remains a board member of CIT Group, a New York financial services company that acquired OneWest last year.

The California Reinvestment Coalition, one of the groups that filed the complaint with HUD, had raised similar issues with bank regulators over the past two years while CIT was working to acquire OneWest — and as recently as this spring, when regulators reviewed and later approved the bank’s plans to serve minority and low-income communities.

“We have urged the bank to make changes to better serve communities, and they would not. We called on banking regulators to hold the bank accountable, and they did not,” said Kevin Stein, the coalition’s deputy director. “We considered next steps, and this is where we are.”

[LA TIMES]

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Fed’s Kashkari Unveils His Plan to End Too-Big-to-Fail Banks

Fed’s Kashkari Unveils His Plan to End Too-Big-to-Fail Banks

Bloomberg-

Federal Reserve Bank of Minneapolis President Neel Kashkari proposed a series of new rules for banks and non-bank lenders that he said would eliminate the threat posed by financial institutions whose failure could wreak havoc in the global markets.

The plan centers on significantly increasing the capital cushion banks must hold to protect against losses in a crisis. It also calls on the U.S. Treasury to determine which banks are “too big to fail” and face higher capital requirements. Finally, the plan would impose a tax on debt for large non-bank lenders and reduce the regulatory burden on community banks.

“We believe the Minneapolis Plan does a much better job of reducing risks at reasonable costs to society than current regulations” Kashkari said in a speech on Wednesday while introducing the proposals at the Economic Club of New York. “Ultimately, the public needs to make their own determination.”

[BLOOMBERG]

Neel Kashkari
Photographer: Mark Kauzlarich/Bloomberg
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JPMorgan Chase Paying $264 Million to Settle FCPA Charges

JPMorgan Chase Paying $264 Million to Settle FCPA Charges

FOR IMMEDIATE RELEASE
2016-241

Washington D.C., Nov. 17, 2016 —The Securities and Exchange Commission today announced that JPMorgan Chase & Co. has agreed to pay more than $130 million to settle SEC charges that it won business from clients and corruptly influenced government officials in the Asia-Pacific region by giving jobs and internships to their relatives and friends in violation of the Foreign Corrupt Practices Act (FCPA).

JPMorgan also is expected to pay $72 million to the Justice Department and $61.9 million to the Federal Reserve Board of Governors for a total of more than $264 million in sanctions resulting from the firm’s referral hiring practices.

According to an SEC order issued today, investment bankers at JPMorgan’s subsidiary in Asia created a client referral hiring program that bypassed the firm’s normal hiring process and rewarded job candidates referred by client executives and influential government officials with well-paying, career-building JPMorgan employment.  During a seven-year period, JPMorgan hired approximately 100 interns and full-time employees at the request of foreign government officials, enabling the firm to win or retain business resulting in more than $100 million in revenues to JPMorgan.

“JPMorgan engaged in a systematic bribery scheme by hiring children of government officials and other favored referrals who were typically unqualified for the positions on their own merit,” said Andrew J. Ceresney, Director of the SEC Enforcement Division.  “JPMorgan employees knew the firm was potentially violating the FCPA yet persisted with the improper hiring program because the business rewards and new deals were deemed too lucrative.”

Kara Brockmeyer, Chief of the SEC Enforcement Division’s FCPA Unit, added, “The misconduct was so blatant that JPMorgan investment bankers created ‘Referral Hires vs Revenue’ spreadsheets to track the money flow from clients whose referrals were rewarded with jobs.  The firm’s internal controls were so weak that not a single referral hire request was denied.”

The SEC’s order finds that JPMorgan violated the anti-bribery, books and records, and internal controls provisions of the Securities Exchange Act of 1934.  JPMorgan agreed to pay $105,507,668 in disgorgement plus $25,083,737 in interest to settle the SEC’s case.  The SEC considered the company’s remedial acts and its cooperation with the investigation when determining the settlement.

The SEC’s continuing investigation is being conducted by Neil Smith and Paul Block of the FCPA Unit and Rory Alex and Martin Healey of the Boston Regional Office.  The SEC appreciates the assistance of the Fraud Section of the U.S. Department of Justice, the U.S. Attorney’s Office for the Eastern District of New York, the Federal Bureau of Investigation, and the Federal Reserve Board of Governors.

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2009: The year the Democratic Party died

2009: The year the Democratic Party died

The Week-

The Democratic Party has been obliterated. Hillary Clinton’s narrow loss to Donald Trump was the shock felt ’round the world, but there’s been an even deeper decline in the Democratic Party at the state and local level. The Obama administration has overseen the loss of roughly a tenth of the party’s Senate seats, a fifth of its House and state legislative seats, and a third of its governorships, something which hasn’t been seen since the repeated routs of Republicans in the 1930s.

There are unquestionably many factors behind this result. But I want to focus on the biggest one that was completely under Democrats’ control. It is the same thing that killed the Republicans of Hoover’s generation: gross mishandling of an economic crisis. Democrats had the full run of the federal government from 2009-10, during the worst economic disaster in 80 years, and they did not fully fix mass unemployment, nor the associated foreclosure crisis. That is just about the most guaranteed route to electoral death there is.

I wrote previously about how in the 1970s, the Democrats gradually embraced the neoliberal ideology of markets and deregulation, setting the stage for later disasters. One under-noticed corollary of this was forgetting the previous generation’s economic wisdom. More and more, Democrats embraced the ideas that markets were self-regulating, that unions were not worth defending, that monopolies were nothing to get worked up over, and that large deficits were by definition bad.

[THE WEEK]

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Clatsop County is joining 11 other counties in a $50 million lawsuit against a private mortgage registry over recording fees.

Clatsop County is joining 11 other counties in a $50 million lawsuit against a private mortgage registry over recording fees.

The Daily Astorian-

Clatsop County is joining 11 other counties in a $50 million lawsuit against a private mortgage registry over recording fees.

The lawsuit alleges that Mortgage Electronic Registration Systems, or MERS, owes the counties millions of dollars in unpaid fees.

“We think we’re probably missing out on somewhere between $35,000 or $70,000 a year in filing fees,” Clatsop County Manager Cameron Moore said.

Under state law, whenever mortgage debt is bought or sold, the transfer must be recorded in county records. MERS, a private registry created in 1995 by the banking industry, has been serving as the owner of record. The mortgage-industry company has, for years, essentially transferred the beneficial interest of a property to itself, circumventing the typical filing fee owed to the county clerk’s office, Clatsop County Counsel Heather Reynolds told county commissioners last week.

[DAILY ASTORIAN]

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Controversy Over Non-Judicial Foreclosures In Hawaii Leaves Title Insurers Wary About Insuring Title On Homes That Have Been Through Non-Court Supervised Process

Controversy Over Non-Judicial Foreclosures In Hawaii Leaves Title Insurers Wary About Insuring Title On Homes That Have Been Through Non-Court Supervised Process

H/T Home Equity Theft

West Hawaii Today-

Foreclosed properties bought at auction often afford buyers a chance at a lucrative deal.

But if you’ve purchased a property anywhere in Hawaii that’s been through a non-judicial foreclosure, you may have acquired considerably less than you bargained for — or potentially nothing at all.

That’s because of several class action and individual action lawsuits that have been filed across every county in the state. The lawsuits allege the banks that administered mass foreclosures during and after the 2008 housing crisis using the non-judicial foreclosure process — meaning without the supervision of the court — did so without following proper procedure.

If a judge rules that a lender didn’t follow the highly specific power of sale outlined in the mortgage contract and supplemented by Hawaii’s non-judicial foreclosure statute part 1, then the sale is void and the property is returned to its original owner.

WEST HAWAII TODAY

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Donald Trump Win Helped Wells Fargo Stock Erase All Losses From Phony Accounts Scandal

Donald Trump Win Helped Wells Fargo Stock Erase All Losses From Phony Accounts Scandal

Fortune-

After news of its phony accounts scandal broke in August, Wells Fargo’s stock got a long drag through the mud. But with expectations of a presidency that will be much friendlier to the financial industry, investors are finally beginning to show a little forgiveness.

Shares of Wells Fargo wfc closed up 7.6% Thursday, to their highest point since January—long before news of its 2 million fake accounts reached consumers. That also pushed Wells Fargo’s market cap to $263.3 billion.

Wells led led bank stocks as the overall financial sector got a boost from president-elect Donald Trump’s win. An exchange-traded fund tracking the performance of financial sector stocks, the Financials Select Sector SPDR Fund xlf , rose 3.7% Thursday.

[FORTUNE]

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