October, 2017 | FORECLOSURE FRAUD | by DinSFLA

Archive | October, 2017

Wall Street bankers are getting bigger bonuses again

Wall Street bankers are getting bigger bonuses again

NY POST-

Time for that second home in the Hamptons.

The average banker bonus in 2017 is poised to get fatter for the second straight year, as hopes for deregulation have led to a flurry of trading and underwriting on Wall Street, according to New York state Comptroller Thomas P. DiNapoli.

The upbeat forecasts, which anticipate bonuses will rise 3.8 percent to $143,462, are based on a blazing first half, during which industry profits jumped 33 percent to $12.3 billion, according to government figures.

“After a very successful first six months, Wall Street profits are on track to exceed last year’s level, barring a major fourth-quarter setback,” DiNapoli said in a statement.

[NY POST]

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Could Wilbur Ross Be The Next Trump Official Targeted In The Mueller Probe?

Could Wilbur Ross Be The Next Trump Official Targeted In The Mueller Probe?

National Memo-

Special counsel Robert Mueller’s indictment against international lobbyist and Trump campaign chief Paul Manafort, and pleading by Trump campaign foreign policy aide George Papadopoulos, cast long shadows over other top Trump administration officials, starting with Commerce Secretary Wilbur Ross, whose previous financial deals involved the European money-laundering hub of Cyprus.

The banking sector of that small island nation in the Mediterranean appears to be a crossroads where top Trump campaign associates, such as Manafort and Papadopoulos, and senior administration officials like Commerce Secretary Ross, crossed paths and had layered financial and political dealings with Kremlin-tied Russian oligarchs.

The Manafort indictment, apart from its detailing of how he spent millions of untaxed overseas earnings for luxury properties in the U.S. that the government wants to seize, listed more than half a dozen pages of overseas wire transfersadding up to $12 million. Almost all of them originated in Cyprus.

[NATIONAL MEMO]

image: CBS NEWS

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Wilbur Ross shifted $2 billion to family trusts before his confirmation

Wilbur Ross shifted $2 billion to family trusts before his confirmation

Market Watch-

Commerce Secretary Wilbur Ross stashed roughly $2 billion of assets in trust funds for his family members before he was confirmed — which allowed him to keep the cash off of his financial disclosure reports, according to a report Monday.

The hidden assets raise questions about whether the 79-year-old billionaire violated federal rules and whether his family owns billions in holdings that could create the appearance of conflicts of interest, Forbes magazine reported.

Ross only disclosed the trusts and the timing of the transfer after Forbes questioned why his financial disclosure form listed fewer assets than he had previously told the magazine he owned.

[MARKET WATCH]

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Wells Fargo, BofA Seek Court Edge for Miami’s Loan Bias Claims

Wells Fargo, BofA Seek Court Edge for Miami’s Loan Bias Claims

BLOOMBERG-

Bank of America and Wells Fargo Oct. 26 asked a federal appeals court to send Miami’s lending bias claims back to a trial court that ruled in favor of both banks in 2014.

In separate but related lawsuits, Miami sued Bank of America and Wells Fargo under the Fair Housing Act, alleging lending discrimination that Miami says is to blame for a host of economic woes, including lower tax revenues and higher property-related city expenditures ( Miami v. Bank of Am. Corp. , 11th Cir., 14-cv-14543, motion for remand 10/26/17 ; Miami v. Wells Fargo Bank & Co. , 11th Cir., 14-cv-14544, motion for remand 10/26/17 ).

A federal district court rejected Miami’s suits at an early stage, saying the suit didn’t meet pleading requirements, but the U.S. Court of Appeals for the Eleventh Circuit reinstated both actions in 2015. Wells Fargo and Bank of America appealed to the U.S. Supreme Court, which in May said cities may file such suits but must allege a causal connection between the claims of bias and the injuries they assert.

[BLOOMBERG BNA]

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U.S. regulator wants to loosen leash on Wells Fargo: sources

U.S. regulator wants to loosen leash on Wells Fargo: sources

Reuters-

A leading U.S. regulator wants to make it easier for Wells Fargo to pay employees when they leave, loosening a restriction in place since a phony accounts scandal hit the bank last year, according to people familiar with the matter.

The initiative comes as President Donald Trump is trying to lighten rules on Wall Street and the bank regulator, Keith Noreika, acting Comptroller of the Currency (OCC), must weigh whether to vet new Wells Fargo executives.

If Noreika’s approach prevails, the OCC could go easier on Wells Fargo and any other large banks sanctioned in the future.

[REUTERS]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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TFH 10/18 | Disorganized Crime: Revealing How Government Insiders Have Secretly Used Fannie Mae, Freddie Mac, MERS, the FDIC, and the Justice Department To Steal Trillions of Dollars from Homeowners and GSE Investors by Defrauding Our Courts

TFH 10/18 | Disorganized Crime: Revealing How Government Insiders Have Secretly Used Fannie Mae, Freddie Mac, MERS, the FDIC, and the Justice Department To Steal Trillions of Dollars from Homeowners and GSE Investors by Defrauding Our Courts

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 – October 28

 ———————
Disorganized Crime: Revealing How Government Insiders Have Secretly Used Fannie Mae, Freddie Mac, MERS, the FDIC, and the Justice Department To Steal Trillions of Dollars from Homeowners and GSE Investors by Defrauding Our Courts

 

 

It has often been said that the best way to rob a bank is to own one.

There have been bank robberies throughout American history conducted by easily identified outside organized criminal gangs, ranging from Jessie James and the Dalton Brothers to various geographic Mafia groups.

None, however, has been more successful yet as diverse and as little known as those who have stolen an unprecedented many trillions of dollars in recent decades from hundreds of millions of victims, such as Homeowners and GSE Investors, and others owning stock in, for instance, IndyMac and Washington Mutual, to name but a few supposedly “failed” institutions.

In every case, federal insiders have manipulated Fannie Mae, Freddie Mac, MERS, the FDIC, and the Justice Department to enable them to loot trillions of dollars of the property and profits of Americans, while the evidence of such theft has been hidden from our Courts.

This disorganized theft has been so extraordinarily diverse, manifesting itself in so many different forms, and so well covered up by participating federal officials, that the full extent of such disorganized criminal activity has never been fully identified or even completely addressed, preventing exposure in our Courts.

On this Sunday’s show we will begin to unravel the complexity of this enormous theft by identifying who the offenders and their victims have been, how and why the full extent of the theft has been unknown, and propose ways still available for combatting it, including suggesting that the victims, principally Homeowners and GSE Investors, should combine together to wake up our Courts.

Listen to today’s show, posted on our website at www.foreclosurehour.com, and find out how you can change American history, beat the banks, by joining the Homeowners SuperPAC today.

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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
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The Foreclosure Hour 12

 

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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The Effects of Securitization, Foreclosure, and Hotel Characteristics on Distressed Hotel Prices, Resolution Time, and Recovery Rate

The Effects of Securitization, Foreclosure, and Hotel Characteristics on Distressed Hotel Prices, Resolution Time, and Recovery Rate

This study investigates the effects of securitization, foreclosure, and hotel characteristics on the sale prices of distressed hotels as well as their influence on resolution time and recovery rate. Using a sample of 4,763 financially distressed hotels between 2010 and 2014, this study provides evidence that hotel size, securitization, foreclosure, and disposal methods are important predictors of distressed property prices, resolution time, and recovery rate.

Bauer J.Fox A. (2015). U.S. CMBS servicers holding REO inventories longer. U.S. CMBS Market Trends (Newsletter). New York, NYFitch RatingsMarch 20Google Scholar
Brown D.Ciochetti B.Riddiough T. (2006). Theory and evidence on the resolution of financial distress. The Review of Financial Studies, 19, 13571397Google Scholar Crossref
Chen J.Deng Y. (2013). Commercial mortgage workout strategy and conditional default probability: Evidence from special serviced CMBS loans. The Journal of Real Estate Finance and Economics, 46, 609632Google Scholar Crossref
Corgel J. (2008). New beats old nearly every day: The countervailing effects of renovations and obsolescence on hotel prices. Cornell Hospitality Reports, 8(13), 617Google Scholar
Corgel J.deRoos J. (1993). The ADR rule-of-thumb as predictor of lodging property values. International Journal of Hospitality Management, 12, 353365Google Scholar Crossref
Corgel J.Walls A. (2010). An analysis of future delinquency for hotel CMBS loans. Trends in the hotel industry USA – 2010. Atlanta, GAPKF Hospitality Research1218Google Scholar Link
Downs D.Xu P. (2015). Commercial real estate, distress and financial resolution: Portfolio lending versus securitization. Journal of Real Estate Finance and Economics, 51, 254287Google Scholar Crossref
Gordon S.Kizer L. (2004November 8). U.S. CMBS loan performance: Impact of seasoning, leverage and location on probability of default (Structured Finance Special report). Retrieved from https://www.moodys.com/research/US-CMBS-Loan-Performance-Impact-of-Seasoning-Leverage-and-Location–PBS_SF46382Google Scholar
Grovenstein R.Harding J.Sirmans C.Thebpanya S.Turnbull G. (2005). Commercial mortgage underwriting: How well do lenders manage the risks? Journal of Housing Economics, 14, 355383Google Scholar Crossref
Lancaster B.Cable D. (2004Spring). CMBS: An impressive performance. The Real Estate Finance Journal, pp. 521Google Scholar
Nagpal A.Sheel A. (2002). An examination of commercial mortgage-backed securities: Some useful insights for borrowers. Journal of Hospitality Financial Management, 10, 3548Google Scholar Crossref
O’Neill J. (2003). ADR rule of thumb: Validity and suggestions for its application. Cornell Hotel and Restaurant Administration Quarterly, 44(4), 716Google Scholar Link
O’Neill J. (2004). An automated valuation model for hotels. Cornell Hotel and Restaurant Administration Quarterly, 45, 260268Google Scholar Link
O’Neill J.Xiao Q. (2006). The role of brand affiliation in hotel market value. Cornell Hotel and Restaurant Administration Quarterly, 47(3), 114Google Scholar
Pennington-Cross A. (2006). The value of foreclosed property. Journal of Real Estate Research, 28, 193214Google Scholar
Quan D.Lebret D. (2006). Delinquency and default of securitized hotel mortgages. Working paper, School of Hotel AdministrationCornell UniversityApril 19Google Scholar
Smith Travel Research Analytics. (2015). HOST Almanac 2015: U.S. Hotel Operating Statistics for the year 2014. Broomfield, COAuthorGoogle Scholar
Trepp LLC. (2015). TreppLoan performance reports. Available from https://www.trepp.com/ Google Scholar
© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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American Nightmare – The Plight of GSE Investors and American Homeowners

American Nightmare – The Plight of GSE Investors and American Homeowners

cross posted via Deadly Clear

By Sydney Sullivan

This will be one of several posts on the future of Fannie Mae and Freddie Mac. Your thoughts and your owns stories are welcome in the comments section.

Nearly a decade ago, in September 2008, US Treasury Chief Hank Paulson unveiled his historic government takeover of twin mortgage buyers, putting the government in charge of the mortgage giants and the $5 trillion in home loans they back. The plan eliminated the top executives which were out and replaced with Wall Street titans.

The House Oversight and Government Reform Committee held a hearing on the financial collapse of Fannie Mae and Freddie Mac, their takeover by the federal government and their role in the financial crisis. The video below is a 4 hour review of a planned response to the crisis in the housing and mortgage markets at the time of the economic meltdown and crash of 2008.

The titans that replaced Freddie CEO Richard Syron and Fannie CEO Daniel Mudd  were two Wall Street finance veterans and were charged with restoring the mortgage magnates to health. Herb Allison formerly served as president of Merrill Lynch wasselected to head Fannie Mae. David Moffett, who served as vice chairman and chief financial officer of U.S. Bancorp until early 2007 took over Freddie Mac. In addition to the ousting of GSE management – the companies were placed in a Conservatorship, controlled by the HERA Act under governance of a new agency FHFA and the US Treasury.

Fannie Mae and Freddie Mac are private, shareholder-owned corporations created by Congress to increase liquidity and stability in the secondary market for home mortgages. While the Companies are commonly referred to as “Government Sponsored Enterprises” or “GSEs,” they are for-profit corporations, and had traditional corporate governance structures—including shareholders, directors, and officers.

Under the Conservatorship, shareholders, directors, and officers and their investments were left in limbo. None of these folks, average Joes who purchased common stock, as well as Hedge Funds and their investors that were in preferred positions, have been able to access their money or pension funds since 2008.

For decades, the GSEs had been two of the world’s largest privately-owned financial institutions —with their portfolios having a combined value of $5 trillion and accounting for “nearly half of the United States mortgage market.” When they needed capital, they issued common stock, numerous classes of preferred stock, and debt securities, all of which were publicly traded on the U.S. capital markets.

Rolling forward 10 years later, we’ve recently learned that Fannie and Freddie were not in dire straits and that their funds have been looted by the Obama administration / Treasury in quarterly Net Worth Sweeps stripping BILLION$ away from what were private corporations.

These Net Worth Sweeps funds included wrongful foreclosure blood money. You see, Fannie and Freddie were the golden geese with access to over 84 MILLION residential homes and untold commercial projects. Wall Street needed these giants under theircontrol – not the public. Sound familiar?

On top of  the American goldmine – the Wall Street Globalists were branching out into England, Ireland Europe pulling the same securitization / rehypothecation scheme over there.

You’ve probably listened to a least some of the video above or recall the news stories all designed to defame the GSEs and provide a cover for Wall Street banks to takeover the entities, that before the repeal of Glass Steagall belonged solely to the public and for public benefit. Fake News dominated back then too, we just didn’t know what it was. We lost our housing industry because Wall Street devised an UNREGULATED securitization program to siphoned off middle class American wealth.

DID WE WAKE UP IN THE SOVIET UNION?

The GSE investors have had enough. They’ve pushed out the truths about the Fake Failing GSEgate – who would and could have survived without Conservatorship; and exposed the Net Worth Sweeps were used to prop up Obamacare. The Investors sued. Having differing opinions from different federal circuits, they filed a PETITION FOR A WRIT OF CERTIORARI in the Supreme Court of the United States, which outlines the overall saga. *Just a warning before you begin to read the document – you are going to be pissed. Make no doubt about it – you’ll be wondering if we have been living in the Soviet Union (maybe it moved to Wall Street). CLICK HERE

Just to give you an idea of a Judge’s dissenting opinion of this extreme hardship:  Judge Brown in Perry Capital, LLC v. Mnuchin, 848 F.3d 1072 (D.C. Cir. 2017) summarized the Net Worth Sweep in her dissent:

“It was, to say the least, a highly unusual
transaction. Treasury was no longer
another, admittedly very important,
investor entitled to a preferred share of the
Companies’ profits; it had received a
contractual right from FHFA to loot the
Companies to the guaranteed exclusion of
all other investors….”

To be fair, even before 2008 the GSEs were on a destructive path driven by UNREGULATED derivatives and a very greedy and corrupt Wall Street. We’d all agree on that. But as we have posted many times, after 2003 the banks ramped their scheme, sucked in homeowners and used computer intelligence rather than common sense and ethics and morals. At least with investors, directors and officers – homeowners had somewhere to go to assert issues.

After 2008, there was no one to investigate, tons of paper laundering, and fraudulent concealment kicked in – and thrives!

Now that the truth is surfacing fast and furious, the GSEs may have the opportunity to be free’d from financial bondage and operate as the founders intended them to. However, its been floated, like a rock in a punch bowl, that maybe one of the TBTF banks would buy them…Merrill Lynch, perhaps? Its doubtful a sale to Merrill Lynch, Wells Fargo, BoA, US Bank, or Chase would please the American public who have even less trust in the banks than they do Congress or Fake News.

WHAT CAN WE DO ABOUT THIS AND SAVE OUR HOMES – HOW CAN WE HELP?

What can we do to protect American homeownership? There are some good plansfloating about to rebuild the companies and save everyone including the average Joes.

Here’s another idea. Fannie and Freddie were designed for OUR American homeowners who have been screwed by the banks. A scheme devised with inflated appraisals, LIBOR rigged short term ARM loans, relaxed underwriting guidelines and computer technology programmed to design loans to default in order to maintain securitization liquidity while allowing rehypothecation unknown to anyone other than the banks. We need Glass Steagall back.

Let’s keep the GSEs privately traded companies with investors, directors and officers, not TBTF banks running the operation or we’ll just have more of the same corruption. Its time to cut out the gravy train. AND let’s incorporate homeowners into the investor pool.

Here’s the plan: Fannie and Freddie issue common shares. Since the paper these old loans were written on is loaded with fraud and forgery – let’s call a Mortgage Amnesty between homeowners and the GSEs …and banks (if we have to).

All loans written between 2003 – 2008 may be refinanced through the GSEs with legitimate market value appraisals, low interest rates 2-3% (remember folks, we’re compensating for the fraud), full disclosure about securitization, electronic signature authorizations – no more faux Mortgage & Notes. Transparency!

  • There would be a Mortgage Amnesty offering open for 2 years.
  • Homeowners can opt to refinance which means they will pay closing costs (appraisals, title search, etc.) and dump their old paper for clean documents and know where their loans are. You’d be pre-approved as long as your taxes, insurance and HOA/AOAO dues are current.
  • In addition, homeowners will agree to buy 10 shares of GSE stock (a new savings program) at hypothetically $60 each share = $600 which is wrapped into the closing costs.
  • Now homeowners would become partners/shareholder with investors. Yes, you can buy more shares if you want. But like your credit union, you’ll have a voice because you’ll be a shareholder.

We’ll be helping investors become a strong voice if we’re all united. The wrongful seizure would never have happened if 84 million homeowners had a stake in the company. And if homeowners participate, when servicing laws are violated we’ll have the mortgage giants to help get it corrected – fast.

The math (not my specialty but simply) says even if only 50 million homeowners [out of over 125+ million American homeowners] participated in the Mortgage Amnesty:

50 Million Homeowners X $600 is according to Siri, “about $30 BILLION.” That a pretty good IPO (not versed in Hedge Fund speak either). But this seems like something that should morally and ethically be considered, given the past decade of pain and sorrow and corruption inflicted upon all of us.

It would lessen the burden on the courts, eliminate the forgeries in the recording offices, clean up titles, and Make American Families more productive again. No more worrying about losing their home.

This was simply the first in a series of posts – because our nation’s economy depends upon housing, whether we currently own, rent or buy. We need to unite and make it better and safer than it has been in the past. The time is now.

If you like this idea – post it, Tweet it, Facebook it – and call you Congressional Representatives (House & Senate) or email them a link. Get the idea circulating and add your thoughts and ideas. United We Stand – and have a much stronger voice!

 

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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WISMAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- Because Nationstar failed to present competent, substantial evidence that it had standing to foreclose at the inception of the case, we reverse.

WISMAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- Because Nationstar failed to present competent, substantial evidence that it had standing to foreclose at the inception of the case, we reverse.

 

MARY T. WISMAN, Appellant,
v.
NATIONSTAR MORTGAGE, LLC AND SPRUCE CREEK GOLF & COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC., Appellees.

Case No. 5D16-3236.
District Court of Appeal of Florida, Fifth District.
Opinion filed October 20, 2017.
Appeal from the Circuit Court for Marion County, Steven G. Rogers, Judge.

C. Michael Duncan, of Duncan Law Offices, P.A., Tavares, for Appellant.

Nancy M. Wallace and Ryan D. O’Connor, of Akerman LLP, Tallahassee, and William P. Heller, Fort Lauderdale, of Akerman LLP, Fort Lauderdale, for Appellee, Nationstar Mortgage, LLC.

No Appearance for Spruce Creek Golf & Country Club Homeowners Association, Inc.

ORFINGER, J.

Mary T. Wisman appeals the trial court’s final judgment of foreclosure entered in favor of Nationstar Mortgage, LLC. Because Nationstar failed to present competent, substantial evidence that it had standing to foreclose at the inception of the case, we reverse.

In December 2014, Nationstar filed a complaint against Ms. Wisman for mortgage foreclosure and to reestablish a lost note. Nationstar alleged that it had standing as “an entity not in possession of the Note which is entitled to enforce the Note pursuant to F.S. 673.3091.” Nationstar attached to the complaint copies of the note, mortgage, and a lost note affidavit from a Nationstar employee (“Nationstar LNA”). The note, which identified Del Webb Mortgage Company as the lender, was certified as a “true and correct copy of the original” by Countrywide Home Loans, Inc. (“CHL Inc.”) and contained an undated blank indorsement executed not by Del Webb but by CHL Inc. The mortgage similarly identified Del Webb as the lender and named MERS as Del Webb’s nominee. The Nationstar LNA asserted that Federal Home Loan Mortgage Corporation (“FHLMC”) had owned the note since December 27, 2001, having acquired it from the original lender, Del Webb. In making this assertion, the Nationstar LNA relied solely on an inter-office email exchange between the Nationstar LNA affiant, who provided a FHLMC loan number and stated that she was “unable to locate the ownership date on this file,” and another Nationstar employee who responded with a “funding date” of “12/27/2001” along with an “S/S Loan” number. The Nationstar LNA further attested that BAC Home Loans Servicing, LP (“BAC”) f/k/a Countrywide Home Loans Servicing, LP (“CHL Servicing, LP”), Bank of America, and Nationstar have serviced the loan on behalf of FHLMC.

To show when the loss of possession occurred, the Nationstar LNA attached a lost note affidavit from “the prior holder of the promissory note . . . in possession of the note when the loss of possession occurred.” That lost note affidavit, dated February 25, 2002, was executed on behalf of CHL Inc. (“CHL Inc. LNA”), and attested that as of that date, the note was lost and that CHL Inc. had not previously hypothecated, transferred, sold, pledged or assigned the note. The CHL Inc. LNA did not provide any details regarding the date or circumstances of the asserted loss of the note but indicated that CHL Inc. purchased or was assigned the note from Del Webb on or about December 5, 2001. In her answer, Ms. Wisman asserted Nationstar’s lack of standing as an affirmative defense.

The case proceeded to a nonjury trial. At trial, Nationstar introduced, among other things, a copy of the note, a copy of the mortgage, and a group of documents that showed that in 2001, CHL Servicing, LP was established as a “domestic entity other” and an affiliate of CHL Inc.; effective November 7, 2008, CHL Inc. transferred the servicing of certain unspecified mortgage loans to CHL Servicing, LP pursuant to an asset purchase agreement with Bank of America;[1] on April 27, 2009, CHL Servicing, LP was renamed BAC; and effective July 1, 2011, BAC merged into Bank of America. Nationstar also entered into evidence two assignments of mortgage, showing that on March 24, 2011, MERS assigned the mortgage and the note to BAC, and then on November 13, 2012, CHL Inc. assigned the mortgage and the note to Nationstar.

According to the Nationstar witnesses’ testimony, FHLMC is the owner of the loan and the note was lost in CHL Servicing, LP’s possession, which, at the time it was lost, was the entity entitled to enforce it. At the close of the evidence, Ms. Wisman moved for an involuntary dismissal based on Nationstar’s failure to prove standing. The trial court denied the motion and entered a final judgment of foreclosure in favor of Nationstar.

A party seeking foreclosure must prove by competent, substantial evidence that it has standing to foreclose at the time of filing the lawsuit. Wilmington Sav. Fund Soc’y, FSB, v. Louissaint, 212 So. 3d 473, 475 (Fla. 5th DCA 2017)Schmidt v. Deutsche Bank, 170 So. 3d 938, 940-41 (Fla. 5th DCA 2015). A person entitled to enforce the note and foreclose on a mortgage includes a person not in possession of the note who is entitled to enforce under section 673.3091, Florida Statutes. Gorel v. Bank of N.Y. Mellon, 165 So. 3d 44, 46 (Fla. 5th DCA 2015) (citing § 673.3011, Fla. Stat. (2013)).

Under Florida law, a lost instrument can be enforced if the person seeking to enforce the instrument was entitled to enforce it when the loss occurred or acquired ownership of it from someone entitled to enforce it when the loss occurred, the loss was not the result of a transfer or seizure, and the instrument cannot reasonably be obtained. § 673.3091(1), Fla. Stat. (2016). The person seeking to enforce the instrument must prove the terms of the instrument and the right to enforce it, and then it is as if the person has produced the instrument. Id. § 673.3091(2). The person may do so either through a lost note affidavit or by testimony from a person with knowledge. Home Outlet, LLC v. U.S. Bank Nat’l Ass’n, 194 So. 3d 1075, 1078 (Fla. 5th DCA 2016).

“A trial court’s decision as to whether a party has satisfied the standing requirement is reviewed de novo.” Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011); see Figueroa v. Fed. Nat’l Mortg. Ass’n, 180 So. 3d 1110, 1115 (Fla. 5th DCA 2015). Here, the trial court erred in finding that Nationstar had standing to foreclose as a person not in possession of the note who is entitled to enforce under section 673.3091. Nationstar attempted to prove through the Nationstar LNA and its witnesses’ testimony and evidence that FHLMC was the owner of the loan and had the right to enforce the instrument at the time that the note was lost because the note was sold by Del Webb to FHLMC and physical possession of the note was transferred to FHLMC’s loan servicer, Bank of America (or its predecessor BAC f/k/a CHL Servicing, LP) and then to Nationstar before the foreclosure action was filed. However, its evidence does not support this claim.

To prove standing, Nationstar submitted a copy of the note with a blank indorsement from CHL Inc., not Del Webb, FHLMC, or CHL Servicing, LP. The mortgage further shows that on December 5, 2001, the original mortgagee, Del Webb, designated MERS as its nominee, and on March 9, 2011, MERS assigned the mortgage and note to BAC, which was formally known as CHL Servicing, LP, an affiliate of CHL Inc.[2] On July 1, 2011, BAC merged with Bank of America. However, neither BAC nor by merger, Bank of America, assigned the mortgage and the note to FHLMC or Nationstar. Instead, on November 13, 2012, a different entity, CHL Inc., assigned the mortgage and the note to Nationstar. While Nationstar claims that CHL Inc., CHL Servicing, LP and BAC are the same entity, its own evidence demonstrates otherwise. Nationstar introduced several documents that showed that CHL Servicing, LP was an affiliate or “domestic entity other” of CHL Inc.; CHL Servicing, LP was later renamed BAC; and that only BAC, and not any other CHL-related entity, merged with Bank of America in 2011. By the 2012 assignment, the evidence fails to show that CHL Inc. was affiliated with either CHL Servicing, LP or BAC.

Further, Nationstar has not proven that FHLMC was the owner of the note entitled to enforce the note at the time of loss of possession. Nationstar relies on the November 6, 2014, inter-office email that shows a “12/27/01 funding date,” a FHLMC loan number, and an “S/S loan number” as its only proof that FHLMC owns the note. However, this document does not prove standing, as it does not directly reference the specific note.[3] Cf. Johnson v. U.S. Bank Nat’l Ass’n, 222 So. 3d 635 (Fla. 2d DCA 2017) (holding that evidence was insufficient to show that mortgagee was holder of note, and thus, lacked standing to foreclose because copy of note contained no endorsements and screen printouts from mortgagee’s servicer made no reference to specific note at issue). There is simply no showing that FHLMC is the owner of the note, and was entitled to enforce the note when it was lost.

We conclude that Nationstar failed to present sufficient evidence of standing. See Lacombe v. Deutsche Bank Nat’l Tr. Co., 149 So. 3d 152, 156 (Fla. 1st DCA 2014)(“Absent evidence of the plaintiff’s standing, the final judgment must be reversed.”). Therefore, we reverse the final judgment and direct the trial court to grant Ms. Wisman’s motion for involuntary dismissal.

REVERSED AND REMANDED for further proceedings.

TORPY and BERGER, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

[1] The agreement was not admitted into evidence.

[2] It is unclear what an affiliate is or what legal right such a status would confer.

[3] For instance, the inter-office email references an FHLMC loan number but that number is not found on the note. In fact, the loan or account number found on the note is the same loan number found on the CHL Inc. LNA, which states that CHL Inc. purchased the note from the original lender, Del Webb. The S/S loan number is the Nationstar loan number that is found on all of its documents.

 

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Pence Breaks Tie as Senate Votes to Kill Rule Allowing Class-Action Suits Against Banks

Pence Breaks Tie as Senate Votes to Kill Rule Allowing Class-Action Suits Against Banks

NBC News-

The Republican-led Senate narrowly voted Tuesday to repeal a banking rule that would let consumers band together to sue their banks or credit card companies to resolve financial disputes.

Vice President Mike Pence cast the final vote to break a 50-50 tie.

The banking industry lobbied hard to roll back the regulation, which the Consumer Financial Protection Bureau unveiled in July. The rule would ban most types of mandatory arbitration clauses found in the fine print of agreements that consumers enter into when opening checking accounts or getting credit cards.

[NBC NEWS]

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Kamin v. Federal National Mortgage Association | FL 2DCA – FNMA’s evidence––the Seterus affidavit and the notice of default letter––fails to conclusively establish that the Kamins could not raise any genuine issue of material fact concerning CitiMortgage’s compliance with paragraph 22

Kamin v. Federal National Mortgage Association | FL 2DCA – FNMA’s evidence––the Seterus affidavit and the notice of default letter––fails to conclusively establish that the Kamins could not raise any genuine issue of material fact concerning CitiMortgage’s compliance with paragraph 22

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

GARY W. KAMIN and AUDREY T. )
KAMIN, )

Appellant,
v.

FEDERAL NATIONAL MORTGAGE )
ASSOCIATION, substituted for )
CITIMORTGAGE, INC.; UNKNOWN )
TENANT #1, n/k/a ANNALEE KAMIN; )
CITIBANK, NATIONAL ASSOCIATION, )
successor by merger to CFSB, )
National Association, successor )
by merger to Citibank Federal )
Savings Bank; JOHN K. MacDONALD; )
BRIDLEWOOD HOMEOWNER’S )
ASSOCIATION, INC.; AMERICAN )
EXPRESS CENTURION BANK; ANY AND )
ALL UNKNOWN PARTIES CLAIMING BY, )
THROUGH, UNDER AND AGAINST THE )
NAMED INDIVIDUAL DEFENDANT(S) )
WHO ARE NOT KNOWN TO BE DEAD )
OR ALIVE, WHETHER UNKNOWN )
PARTIES MAY CLAIM AN INTEREST )
AS SPOUSES, HEIRS, DEVISEES, )
GRANTEES, OR OTHER CLAIMANTS, )

Appellees. )
____________________________

2D16-2457 by DinSFLA on Scribd

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Effective October 19, New Rights for Homeowners Seeking Loan Modifications

Effective October 19, New Rights for Homeowners Seeking Loan Modifications

NCLC Digital Library

 

CONTENTS (links below)

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Regulator Blasts Wells Fargo for Deceptive Auto Insurance Program

Regulator Blasts Wells Fargo for Deceptive Auto Insurance Program

NY TIMES-

A federal regulator criticized Wells Fargo for engaging in unfair and deceptive practices and failing to manage risks, and said it had not set aside enough money to pay back the customers it harmed.

The confidential report, prepared by the Office of the Comptroller of the Currency and reviewed by The New York Times, criticizes Wells Fargo for forcing hundreds of thousands of borrowers to buy unneeded auto insurance when they took out a car loan, as well as its handling of the problems once they were detected.

The regulators’ report, sent to the bank this week, is preliminary. Still, it represents the latest blow to the reputation of Wells Fargo, America’s third-largest bank and one that was once regarded as being among the best run in the country. The bank is still trying to recover from a scandal in which its employees created millions of credit card and bank accounts that customers had not requested, eventually leading to the ouster of the bank’s chief executive and millions of dollars in regulatory fines.

[NEW YORK TIMES]

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Treasury Report Sides With Equifax and Wells Fargo Against Ripped-Off Customers

Treasury Report Sides With Equifax and Wells Fargo Against Ripped-Off Customers

Statements From Experts at Public Citizen and Americans for Financial Reform

“It’s no surprise to see the Steven Mnuchin-led U.S. Treasury Department aim to parachute into the forced arbitration dispute to sabotage the rule on behalf of big banks. Treasury’s main complaint is that the U.S. Consumer Financial Protection Bureau (CFPB) rule will enable consumers to seek effective remedy against corporate wrongdoers. This is true – but it’s precisely the purpose of the rule.

What Treasury’s so-called analysis fails utterly to grapple with is that consumers have no effective redress in individualized arbitration, especially for small-dollar rip-offs affecting a broad range of people. Class-action lawsuits advance justice by transferring ripped-off money back to consumers (and attorneys are paid only if they recover for their clients). The Treasury Department’s report treats this feature as a bug. Effective remedies deter financial industry wrongdoing, while fake remedies encourage more rip-offs and abuses.

Treasury might better have titled its report ‘Enabling Wells Fargo, Equifax and Other Wrongdoers.’”

– Robert Weissman, president, Public Citizen

“The Treasury report willfully ignores the fact that class actions returned $2.2 billion to consumers between 2008-2012 – after deducting attorneys’ fees and court costs. That hardly seems like ‘no relief.’ What’s more, the Economic Policy Institute found that the average consumer who goes to arbitration ends up having to pay their bank or lender $7,725 in fees. It is clear that consumers derive benefits from class-action lawsuits and lose when forced into secret arbitration.”

Real world experience makes it clear that if Wall Street banks save money by avoiding litigation – whether that’s court costs or attorneys’ fees – that money stays in their own pockets. The rest of us continue to pay the costs of consumer rip-offs, which forced arbitration protects as a workable business model.”

– Lisa Donner, executive director, Americans for Financial Reform

###

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FHA EXTENDS FORECLOSURE RELIEF FOR HOMEOWNERS IMPACTED BY RECENT HURRICANES

FHA EXTENDS FORECLOSURE RELIEF FOR HOMEOWNERS IMPACTED BY RECENT HURRICANES

Foreclosure moratorium extended another 90 days to help struggling families

WASHINGTON – The Federal Housing Administration (FHA) is extending its initial 90-day foreclosure moratorium for FHA-insured homeowners impacted by Hurricanes Harvey, Irma and Maria for an additional 90 days due to the extensive damage and continuing needs in hard-hit areas. Read FHA’s letter to lenders, servicers and counseling agencies.

FHA is extending this foreclosure relief in Presidentially declared counties and municipalities where the Federal Emergency Management Agency (FEMA) is operating its Individual Assistance Program. Under the expanded moratorium, FHA is instructing lenders and servicers to suspend all foreclosure actions against borrowers until the following dates:

Hurricane Harvey – February 21, 2018
Hurricane Irma – March 9, 2018
Hurricane Maria – March 19, 2018

FHA-insured homeowners may qualify for this relief under the following conditions:

  • The household lives within the geographic boundaries of a Presidentially declared disaster area;
  • A household member of someone who is deceased, missing or injured directly due to the disaster; or
  • The borrower’s ability to make mortgage payments is directly or substantially affected by a disaster.

In addition to the extension of FHA’s initial foreclosure moratorium, the agency is:

    • Offering forbearance and loan modification options – HUD offers different forbearance and loan modification options for FHA borrowers affected by disasters. Borrowers having trouble making regular payments should contact their loan servicer as soon as possible for more information.
    • Making mortgage insurance available – HUD’s Section 203(h) program provides FHA insurance to disaster victims who have lost their homes and are facing the daunting task of rebuilding or buying another home. Borrowers from participating FHA-approved lenders are eligible for 100 percent financing, including closing costs.
    • Making insurance available for both mortgages and home rehabilitation – HUD’s Section 203(k) loan program enables those who have lost their homes to finance the purchase or refinance of a house along with its repair through a single mortgage. It also allows homeowners who have damaged houses to finance the rehabilitation of their existing single-family home;
  • Sharing information with FEMA and the State on housing providers that may have available units in the impacted counties – this includes Public Housing Agencies and Multi-Family owners. The Department will also connect FEMA and the State to subject matter experts to provide information on HUD programs and providers.

Read about these and other HUD programs designed to assist disaster victims.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.
More information about HUD and its programs is available on the Internet
at www.hud.gov and https://espanol.hud.gov.

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BofA Judge Still Resists Erasing ‘Heartless’ Foreclosure Ruling

BofA Judge Still Resists Erasing ‘Heartless’ Foreclosure Ruling

Bloomberg-

A judge who imposed a $45 million penalty on Bank of America Corp. over a foreclosure on a California couple still isn’t ready to forget the case he described as a “Kafkaesque nightmare.”

U.S. Bankruptcy Judge Christopher Klein voiced exasperation Wednesday as the bank sought for the third time to win his approval of a confidential settlement that would nix the monetary penalty and also erase the 107-page ruling he issued in March detailing the bank’s “callous” and “cruel” treatment of the Sundquist family after they sought a mortgage modification.

Klein asked the bank’s attorney at a hearing in Sacramento: “Are you representing, ‘Oh, judge, we just get to erase the record whenever we want?” The judge said it looked to him like the bank was “holding the Sundquists hostage” by making the settlement contingent on the ruling being dismissed.

[BLOOMBERG]

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TFH 10/22 | Special Seventh Year Anniversary Show Foreclosure Workshops #49 and #50:  Wells Fargo Bank v. Erum — When Is a “Notice of Default” a Notice of Default and When Is It Not?  Nationstar Mortgage v. Akepa Properties — When Is a Foreclosing Plaintiff’s “Lack of Standing” a Jurisdictional Defect and When Is It Not?

TFH 10/22 | Special Seventh Year Anniversary Show Foreclosure Workshops #49 and #50: Wells Fargo Bank v. Erum — When Is a “Notice of Default” a Notice of Default and When Is It Not? Nationstar Mortgage v. Akepa Properties — When Is a Foreclosing Plaintiff’s “Lack of Standing” a Jurisdictional Defect and When Is It Not?

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 – October 22

 ———————
Special Seventh Year Anniversary Show
Foreclosure Workshops #49 and #50:

Wells Fargo Bank v. Erum — When Is a “Notice of Default” a Notice of Default and When Is It Not?

Nationstar Mortgage v. Akepa Properties — When Is a Foreclosing Plaintiff’s “Lack of Standing” a Jurisdictional Defect and When Is It Not?

 

 

For too long most of our courts have cavalierly discriminated against homeowners by consciously or otherwise going out of their way to protect foreclosing plaintiffs, applying legal doctrines against mortgagors differently than in other areas of the law.

On today’s Seventh Anniversary Show, we will examine two such major areas of discrimination, the first involving the treatment of default notices, and the second the treatment of standing defects.

While progress is being made in our courts opposing such discrimination against homeowners, it will never end until more “Rosa Parks” among homeowners stand up and refuse to go to the back of the bus, as it were, and join together to protect their legal, often constitutional rights, still continuing to be too often thoughtlessly abused.

On today’s show, join John and me and learn how such discrimination is playing out in two important foreclosure defense areas on our Seventh Anniversary Show, as we begin our eighth year on KHVH AM Radio, beginning as weekly guests with our clients on the Rick Hamada Show in 2010, eventually hosting our own Foreclosure Hour on KHVH AM Radio and nationally on iHeart Radio for the past four years.

Listen to today’s show, posted on our website at www.foreclosurehour.com, and find out how you can change American history, beat the banks, by joining the Homeowners SuperPAC today.

.
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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California, Ohio Extend Sanctions Against Wells Fargo Bank

California, Ohio Extend Sanctions Against Wells Fargo Bank

Corporate Counsel-

California State Treasurer John Chiang said he has decided to extend his state’s financial sanctions against Wells Fargo & Co. into a second year, while Ohio extended its sanctions another six months.

At least four other states and three cities also suspended their governments’ business with Wells Fargo. So far only California and Ohio have extended their suspensions, according to bank spokesman Gabriel Boehmer.

Chiang imposed the ban against doing state Treasury business with Wells Fargo last October after it was revealed the bank had set up millions of fake accounts without customers’ knowledge.

[CORPORATE COUNSEL]

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How Banks Undermined Federal Foreclosure Assistance

How Banks Undermined Federal Foreclosure Assistance

Obama’s 2009 mortgage-modification program would have helped 70% more homeowners if lenders had been better organized.

Stanford Graduate School of Business-

In early 2009, in the depths of the mortgage meltdown, President Barack Obama launched a multi-billion-dollar effort to stem the flood of home foreclosures.

It was called the Home Affordable Modification Program (HAMP), and it aimed to help families keep their homes by offering incentives to banks and loan-servicing companies that modified mortgages of troubled borrowers.

The idea was to correct what economists call a “market failure,” because foreclosures can be a losing proposition for everybody involved. Not only do borrowers end up losing their homes, but a bank’s loss from a foreclosed mortgage can actually be higher than the cost of negotiating more favorable terms with the homeowner. Foreclosures also drag down the value of surrounding properties, creating wider losses by depressing the overall housing market.

[Stanford Graduate School of Business]

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Hopkins v. HOMEWARD RESIDENTIAL, INC., Cal: Court of Appeal, 1st Appellate Dist |  The judgments are reversed with respect to the fifth cause of action (negligence against Homeward), the sixth cause of action (negligence against Citi), and the eleventh cause of action (unfair competition against both defendants)

Hopkins v. HOMEWARD RESIDENTIAL, INC., Cal: Court of Appeal, 1st Appellate Dist | The judgments are reversed with respect to the fifth cause of action (negligence against Homeward), the sixth cause of action (negligence against Citi), and the eleventh cause of action (unfair competition against both defendants)

 

DONALD RAY HOPKINS, Plaintiff and Appellant,
v.
HOMEWARD RESIDENTIAL, INC., et al., Defendants and Respondents.

No. A144292.
Court of Appeals of California, First District, Division Two.
Filed September 28, 2017.
Appeal from the Alameda County, Superior Court No. RG 11581294.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MILLER, J.

Plaintiff Donald Ray Hopkins (Hopkins) appeals from judgments in favor of defendants Homeward Residential, Inc. (Homeward) and Citibank, N.A. (Citi) following the trial court’s orders sustaining defendants’ demurrers to Hopkins’s fifth amended complaint without leave to amend.[1]

Hopkins took out a loan secured by a deed of trust on his home. Homeward serviced the loan for the lender, and Hopkins made loan payments to Homeward through a checking account he had with Citi. Hopkins sued Homeward, Citi, and the lender, alleging they conspired “to engage [in] an illegal hard money lending and foreclosure scheme.” Essentially, he claimed that he always made or tried to make timely loan payments, but starting in July 2010, defendants conspired to misplace or misallocate his loan payments. This allegedly resulted in Homeward wrongly charging Hopkins late fees, which eventually caused him to stop making loan payments.

On appeal, Hopkins contends he alleged facts showing Homeward and Citi owed him a duty of care to support his negligence claims. He argues he stated a claim of fraudulent concealment of a material fact, and he pleaded all the elements for claims of elder abuse and unfair competition. Hopkins also argues he was excused from continuing to make loan payments, and, therefore, the trial court erred in finding that he was the cause of his own loss.

We conclude Hopkins has alleged sufficient facts to state claims of negligence and unfair competition against Homeward and Citi, but the trial court properly sustained defendants’ demurrers to the remaining claims. Accordingly, we affirm in part and reverse in part.[2]

FACTUAL AND PROCEDURAL BACKGROUND

A. Hopkins Takes Out a Loan in 2006 and Stops Making Payments in 2011

On or about October 24, 2006, Hopkins borrowed $815,000 from American Brokers Conduit (ABC),[3] secured by a first deed of trust on his residence in Oakland (Oakland house). Hopkins made payments on the loan “via electronic checks” from his checking account with Citi. According to Hopkins, he made all payments until April 2011, when he stopped making payments on the loan.

On June 20, 2011, a “Notice of Default and Election to Sell Under Deed of Trust” regarding the Oakland house was recorded at the Alameda County Recorder’s Office.

B. Hopkins Commences This Lawsuit in 2011

On June 17, 2011, Hopkins filed an original verified complaint against American Home Mortgage Servicing, Inc. (AHMS), which is now known as Homeward,[4] and Citi. Hopkins alleged that, “[d]espite plaintiff making timely payments on the Loan, defendants AHMS and ABC declared the Loan in default, initiated collection activities against plaintiff Hopkins, defamed his otherwise impeccable credit and initiated foreclosure.” After many demurrers, motions to amend, amended complaints, and two trips to federal district court, the trial court sustained defendants’ demurrers to Hopkins’s fourth amended complaint and gave him leave to file another amended complaint.

C. Hopkins Files the Operative Complaint in 2014

On July 16, 2014, Hopkins filed his fifth amended complaint, the operative pleading. As relevant to this appeal, he asserted the following claims: negligence against Homeward (fifth cause of action)[5] and Citi (sixth cause of action), slander of title against all defendants (seventh cause of action), fraud against Citi (eighth cause of action) and Homeward (ninth cause of action), financial elder abuse against all defendants (tenth cause of action), and unfair competition against all defendants (eleventh cause of action). Hopkins attached exhibits to his fifth amended complaint, including the loan agreement, a “Customer Account Activity Statement” from Homeward showing its record of Hopkins’s payment history, and monthly account statements Hopkins received from Citi for July through October 2010.

Hopkins alleged he “made all payments in a timely fashion according to the terms of the [loan agreement] (or at least tried to do so and if not was intentionally thwarted by each and every defendant) through and until April 2011, when plaintiff stopped making payments because defendants, and each of them, had obviously formed a conspiracy to foreclose upon the home and flip-it on the real estate market for a windfall profit.”

More specifically, Hopkins alleged that, starting in July 2010, Homeward contacted Citi “and placed a stop order on plaintiff Hopkins[‘s] (timely) July through October 2010 electronic check payments—all without any party defendant ever informing plaintiff Hopkins that they had done so, or telling him why or where the money went after it left plaintiff’s Citibank account.” Hopkins continued, “Obviously, defendant Citibank, or Citibank officials, secreted Don Hopkins'[s] mortgage payment monies away for itself or themselves, somewhere.”[6] As to Citi, he alleged it “implicated itself in a conspiracy against plaintiff Hopkins with defendants ABC and Homeward by, inter alia, agreeing to stop payment of plaintiff’s July 2010 mortgage payment, . . . thereby making the payment late and setting-off a crescendo of alleged late payments and fees on plaintiff’s ABC/Homeward monthly mortgage payment account.”

He further alleged: “Each month, Mr. Hopkins would get a letter from defendant Homeward, saying that the payments were not received and threatening various actions against him. Every month Don Hopkins would go to the offices of defendant Citibank [and] show a bank officer the letter from Homeward. Every month the Citibank officer would review their records and assured Mr. Hopkins that the payments had been sent to Homeward and duly recorded. Don Hopkins relied on these assurances made by defendant Citibank. After about seven months, . . . Mr. Hopkins began receiving calls from Realtors saying his property was on various `default lists.’ Letters to defendant Homeward were responded to with various explanations as to why the payments had not been sufficient—none of which explanations ever made sense, as plaintiff had made every single payment in full, and on time.”

Hopkins alleged that Homeward charged a series of illegal late fees and penalties and imposed “`forced’ insurance,” and that around March 2011, his “account was so deeply embroiled in the fraudulent schemes of each and every defendant that further payments by plaintiff became not only futile, but excused as a matter of law, equity and simple common sense.” He alleged that comparing his checking account statements from Citi with Homeward’s record of his loan payments “reveals the disparity between the two—and the fraud.”

D. Defendants File Demurrers to the Fifth Amended Complaint

Homeward and Citi demurred, and Citi filed a motion to strike. Citi and Homeward asked the trial court to take judicial notice of the deed of trust recorded in relation to the loan in October 2006 and the notice of default recorded in June 2011. Citi also asked the court to take judicial notice of Hopkins’s fourth amended complaint. The trial court granted defendants’ requests for judicial notice.

Citi relies on “Citibank Check Image Delivery” documents

Citi argued the negligence claim failed because Hopkins failed to allege facts demonstrating Citi owed him a legal duty. It further argued that an exhibit attached to his fourth amended complaint (labeled “Citibank Check Image Delivery”) showed that, contrary to Hopkins’s allegations, payments of $2,560.10 were paid to Homeward on July 21 and August 10, 2010, and payments of $2,560 were paid September 15, and October 7, 2010.[7] Finally, Citi claimed the allegations failed to show causation or damages because Hopkins admittedly stopped making payments on the loan as of April 2011.

As to the claim for slander of title, Citi argued the claim failed on many grounds: first, Citi had no interest in the loan and did not record the notice of default; second, publication of a nonjudicial foreclosure document is privileged; third, Hopkins could not allege falsity of the recording because he admittedly stopped making payments; and, fourth, Hopkins failed to allege third-party reliance or any damages.

As to the fraud claim, Citi maintained that Hopkins failed to allege any of the elements of the claim. According to Citi, Hopkins (1) failed to plead any actionable misrepresentation of material fact, (2) failed to plead Citi had knowledge of the falsity of any misrepresentation of fact, (3) failed to allege intent to defraud by Citi, (4) failed to allege justifiable reliance by Hopkins, and (5) failed to allege facts showing proximate damages.

Citi argued the elder abuse claim failed because Hopkins did not allege specific facts, as opposed to conclusions, to support the claim and, further, the exhibits attached to the fourth amended complaint showed Citi processed and delivered monthly checks to Homeward from July 2010 through March 2011, contradicting Hopkins’s allegations. It argued the claim for unfair competition failed because Hopkins could not allege damage and he failed to allege unlawful, fraudulent, or unfair activity with the requisite specificity.

Homeward relies on the “Customer Account Activity Statement”

Homeward made many arguments similar to Citi’s.[8] Homeward argued that its own record of Hopkins’s payment, the “Customer Account Activity Statement” (CAAS) attached to the fifth amended complaint, contradicted Hopkins’s “gratuitous assertions” that he made all loan payments. Instead, Homeward asserted, the CAAS “demonstrates that the last payment received by Homeward was received on March 9, 2011, which payment was applied to Plaintiff’s January, 2011 payment because Plaintiff was behind on his loan.”[9]

The CAAS attached to the fifth amended complaint showed payments recorded in Hopkins’s loan account from July 2008 to July 2011. It showed that all payments were made by the tenth of the month from July 2008 through June 2010.

Then, for July through October 2010, the CAAS showed timely payments received and then returned a few days later.[10] The CAAS did not indicate why the checks were returned. In July through September 2010, a second payment (after the first was returned) was entered, but no payment was recorded in October 2010. Late charges were assessed in July and October 2010. Thus, the CAAS (which Homeward relies on to show it did nothing wrong) is not consistent with the “Citibank Check Image Delivery” (which Citi relies on to show it did nothing wrong) In particular, the “Citibank Check Image Delivery” showed a payment to Homeward was made on October 7, 2010, but no corresponding payment was recorded in the CAAS, and Homeward assessed a late fee against Hopkins that month.[11]

E. The Trial Court Sustains the Demurrers Without Leave to Amend

On October 22, 2014, the trial court sustained the demurrers without leave to amend. The court ruled the negligence claims failed because Hopkins “has not yet alleged facts demonstrating that [either] defendant owed plaintiff a duty.”

The court ruled the claim for slander of title failed because Hopkins “has not alleged facts showing a tortious injury to his property resulting from unpublished, false, and malicious publication of disparaging statements regarding the title to property owned by plaintiff to plaintiff’s damage.”

The fraud claims failed because “after six opportunities to amend, plaintiff has failed to allege facts as opposed to conclusions showing specifically that [either] defendant should be liable for fraud.”

As to the claim for elder abuse, the court ruled, “The basis of plaintiff’s claim is that payments at issue were converted (in contradiction to the exhibits attached to plaintiff’s complaints)—and that is the reason that the notice of default was recorded. However, plaintiff also admits his decision to stop making payments before the notice of default was recorded. There are simply insufficient facts alleged showing that [either] defendant was responsible for the alleged conversion or responsible under a viable cause of action as a basis to state this claim.” With respect to Homeward, the court further found that the claim was barred by the applicable statute of limitations.

As to the claim of unfair competition, the court ruled Hopkins “did not establish standing, a predicate [to a] viable underlying claim showing [either] defendant’s alleged conduct was unfair or unlawful in support of this claim.”

DISCUSSION

A. Standard of Review

“We independently review the ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action. [Citation.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (Fremont Indemnity Co. v. Fremont General Corp.(2007) 148 Cal.App.4th 97, 111.) “We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “We construe the pleading in a reasonable manner and read the allegations in context. [Citation.] We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons.” (Fremont Indemnity Co., supra, at p. 111.)

“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Under the truthful pleading doctrine, however, courts “will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.” (Ibid.)

“If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

With these standards in mind, we consider whether Hopkins has stated a cause of action against any defendant.

B. Fifth and Sixth Causes of Action: Negligence

The trial court ruled that the negligence claims against Homeward and Citi failed because Hopkins “has not yet alleged facts demonstrating that defendant owed plaintiff a duty.” Hopkins contends both Homeward and Citi owed him a duty of care under the facts alleged. This contention has merit.

1. Homeward[12]

Hopkins states the question on appeal is whether a loan servicer, such as Homeward, owes a borrower a duty of care in accounting for and handling loan payments. He argues the answer must be yes under our decision in Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872 (Jolley).

In Jolley, we acknowledged “`as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.'” (Jolley, supra, 213 Cal.App.4th at p. 898.) But, we continued, “the no-duty rule is only a general rule.” (Id. at p. 901.) It does not mean a lender never owes a duty of care to a borrower. Instead, the question whether a lender owes such a duty requires the balancing of the “Biakanja factors” set forth in Biakanja v. Irving (1958) 49 Cal.2d 647, 650 (Biakanja). (Jolley, supra, 213 Cal.App.4th at p. 901.)[13]

Jolley involved a construction loan agreement, and the plaintiff-borrower alleged the lender failed to properly disburse construction funds. (Jolley, supra, 213 Cal.App.4th at p. 877.) We concluded there was a triable issue of material fact as to whether the defendant (the successor to the original lender) was liable for negligence, and reversed a summary adjudication in favor of the defendant. (Id. at p. 897.)

In Jolley, we noted, “[W]e deal with a construction loan, not a residential home loan where, save for possible loan servicing issues, the relationship ends when the loan is funded. By contrast, in a construction loan the relationship between lender and borrower is ongoing, in the sense that the parties are working together over a period of time, with disbursements made throughout the construction period, depending upon the state of progress towards completion. We see no reason why a negligent failure to fund a construction loan, or negligent delays in doing so, would not be subject to the same standard of care.” (Jolley, supra, 213 Cal.App.4th at p. 901, italics added.) Thus, we held the ongoing relationship involved in a construction loan may impose a duty of care owed to the borrower, and we suggested that, in the case of a residential home loan, the ongoing relationship of servicing the loan might also give rise to a duty of care.

While we only suggested the servicing of a home loan may impose a duty of care in Jolley, Division Three of our court decided the issue in Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941 (Alvarez). In Alvarez,homeowners sued their lender and its loan servicer alleging, “among other things, fraud and unfair business practices in the origination of plaintiffs’ residential mortgage loans, and negligence in the subsequent servicing of the loans, including negligent review of plaintiffs’ applications for loan modification.” (Id. at pp. 943-944, italics added.) They alleged the defendants breached their duty to exercise reasonable care by, among other things, “mishandling plaintiffs’ applications [for loan modification] by relying on incorrect information.” (Id. at p. 945, italics added.) The trial court sustained the defendants’ demurrer to the negligence claim, concluding they owed no duty of care to the homeowners. (Id. at p. 944.)

The Court of Appeal reversed. Considering the Biakanja factors, the appellate court concluded the plaintiffs stated a claim of negligence against the defendants: “Here, because defendants allegedly agreed to consider modification of the plaintiffs’ loans, the Biakanja factors clearly weigh in favor of a duty. The transaction was intended to affect the plaintiffs and it was entirely foreseeable that failing to timely and carefully process the loan modification applications could result in significant harm to the applicants. Plaintiffs allege that the mishandling of their applications `caus[ed] them to lose title to their home, deterrence from seeking other remedies to address their default and/or unaffordable mortgage payments, damage to their credit, additional income tax liability, costs and expenses incurred to prevent or fight foreclosure, and other damages.’ . . . `Although there was no guarantee the modification would be granted had the loan been properly processed, the mishandling of the documents deprived Plaintiff of the possibility of obtaining the requested relief.’ [Citation.] Should plaintiffs fail to prove that they would have obtained a loan modification absent defendants’ negligence, damages will be affected accordingly, but not necessarily eliminated.” (Alvarez, supra, 228 Cal.App.4th at pp. 948-949.)

The Alvarez court explained why a duty of care should be imposed on the servicer of the loan in particular. “`[B]orrowers are captive, with no choice of servicer, little information, and virtually no bargaining power. Servicing rights are bought and sold without input or approval by the borrower. Borrowers cannot pick their servicers or fire them for poor performance. The power to hire and fire is an important constraint on opportunism and shoddy work in most business relationships. But in the absence of this constraint, servicers may actually have positive incentives to misinform and under-inform borrowers. Providing limited and low-quality information not only allows servicers to save money on customer service, but increases the chances they will be able to collect late fees and other penalties from confused borrowers.'” (Alvarez, supra, 228 Cal.App.4th at p. 949.) The court reasoned, “The borrower’s lack of bargaining power, coupled with conflicts of interest that exist in the modern loan servicing industry, provide a moral imperative that those with the controlling hand be required to exercise reasonable care in their dealings with borrowers seeking a loan modification.” (Ibid.)

Following Jolley and Alvarez, the Sixth District in Daniels concluded that homeowners stated a claim of negligence where they alleged the loan servicer, among other things, did “not accurately account[] for their trial payments.” (Daniels, supra, 246 Cal.App.4th at p. 1184.) The homeowners also alleged they “attempted to resume making their regular, higher monthly payments, but [the loan servicer] refused to accept those payments.” (Id. at p. 1159.) The Daniels court held, “a loan servicer may owe a duty of care to a borrower through application of the Biakanja factors, even though its involvement in the loan does not exceed its conventional role.” (Id. at p. 1158, fn. omitted.)

Jolley, Alvarez, and Daniels all support the conclusion Hopkins has adequately alleged Homeward owed him a duty of care in processing, and accounting for, his loan payments. Consideration of the Biakanja factors leads us to the same conclusion. The transaction of accepting and accounting for loan payments obviously affected Hopkins. Homeward’s alleged failure to account for payments received and its alleged instruction to Citi to stop payments of Hopkins’s checks resulted in unwarranted late charges, a harm to Hopkins. The injury of unwarranted late fees is certain. There is a close connection between Homeward’s alleged conduct and the harm since, according to Hopkins, his payments would have been timely and no late fees would have been imposed without Homeward’s alleged breach. Instructing Citi to stop payment on Hopkins’s timely payments and failing to account for Hopkins’s payments is morally blameworthy conduct. Finally, the policy of preventing future harm favors imposing a duty on loan servicers not to mishandle and misallocate payments received from borrowers. The Alvarez court observed that the economics and incentives of the loan servicing industry may encourage loan servicers to misinform borrowers to “`increase[] the chances they will be able to collect late fees and other penalties from confused borrowers.'” (Alvarez, supra, 228 Cal.App.4th at p. 949.) The same incentive structure could result in loan servicers keeping sloppy, inaccurate records of loan payments in order to impose unwarranted late fees. The Alvarez court concluded, “The borrower’s lack of bargaining power, coupled with conflicts of interest that exist in the modern loan servicing industry, provide a moral imperative that those with the controlling hand be required to exercise reasonable care in their dealings with borrowers seeking a loan modification.” (Ibid.) We believe loan servicers should be required to exercise reasonable care in their dealings with borrowers who make timely payments as well.[14]

Homeward maintains that even if a duty of care exists, Hopkins has not alleged facts demonstrating it breached that duty. Homeward argues that Hopkins’s allegation that Homeward misplaced or misallocated his loan payments is contradicted by the CAAS, which Hopkins attached to the fifth amended complaint. Homeward asserts, “The CAAS demonstrates that Homeward received and credited all of Appellant’s payments and demonstrates that Appellant made his last payment on March 9, 2011, which payment was applied retroactively, to January, 2011, because Appellant was past due for January 1, 2011 payment.” We disagree.

Hopkins attached the CAAS to his fifth amended complaint presumably because it showed entries for “return check” on July 7, August 5, September 7, and October 6, 2010. These entries for “return check” support his allegation that Homeward contacted Citi “and placed a stop order on plaintiff Hopkins[‘s] (timely) July through October 2010 electronic check payments” without telling Hopkins.

Hopkins alleged he made or tried to make timely payments every month until he stopped making payments in April 2011. He alleged he was improperly charged late fees, sent overdue notices, and eventually threatened with foreclosure. These allegations are not contradicted by the CAAS. The CAAS showed late fees were charged on July 16 and October 18, 2010, and on February 16, April 18, and May 16, 2011, and further showed no credit for payments (i.e., missed payments) in October 2010 and February 2011. Accepting as true Hopkins’s allegation that he made or tried to make timely loan payments every month until April 2011, the CAAS is consistent with his further allegations that Homeward wrongly imposed late fees and failed to account for his payments. Moreover, Hopkins alleged a “disparity” between his checking account statements and Homeward’s accounting, and the exhibits attached to the fifth amended complaint bear this out. Hopkins’s monthly account statement from Citi for October 2010 showed a payment to Homeward of $2,560, but the CAAS showed no credited payment for October 2010. Homeward’s argument fails because the CAAS does not contradict Hopkins’s allegations.[15]

2. Citi

The trial court ruled that Hopkins failed to state a claim of negligence against Citi because Hopkins “has not yet alleged facts demonstrating that defendant owed plaintiff a duty.” As Hopkins pointed out in his opposition to Citi’s demurrer, however, “[i]t is well established that a bank has `a duty to act with reasonable care in its transactions with its depositors.'” (Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 543.) Hopkins alleged he was a customer with a checking account at Citi. As such, he was owed a duty of care by Citi.

Citi argues that, even if it owed a duty of care, there has been no breach of that duty. Citi asserts it “dutifully complied with [Hopkins’s] check requests, as it issued monthly checks from July 2010 through October 2010, which were debited from [his] Citi checking account and were credited to the Subject Loan.” Citi, however, does not address the allegations that Hopkins timely instructed Citi to make the July 2010 and subsequent payments, but that Citi permitted Homeward to stop payment without telling Hopkins. Hopkins alleged Citi’s conduct caused his July payment to be late and “set[] off a crescendo of alleged late payments and fees.”[16] We conclude Hopkins has sufficiently alleged a breach of duty by Citi (in stopping payments without telling Hopkins) and resulting harm (late payments and late fees).

Citi argues that Hopkins cannot allege fact to show it caused him damage because he admittedly stopped making payments on his loan in April 2011. This argument, however, ignores the harm of allegedly wrongly imposed late fees and misallocated payments, which preceded Hopkins’s decision to stop making payments on his loan.

3. Conclusion

Citi describes Hopkins’s allegations as “fantastical” and Homeward characterizes them as “gratuitous,” but we must accept the allegations as true, no matter how unlikely or improbable they may be and without regard to Hopkins’s ability to prove them. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 220.) For the reasons explained above, we conclude Hopkins alleged facts sufficient to demonstrate Homeward and Citi owed him a duty of care, and he sufficiently alleged harm in the form of wrongly imposed late fees and misallocated payments.[17] Therefore, the trial court erred in sustaining demurrers to the fifth and sixth causes of action for negligence.

C. Seventh Cause of Action: Slander of Title

The trial court ruled the claim for slander of title failed because Hopkins “has not alleged facts showing a tortious injury to his property resulting from unpublished, false, and malicious publication of disparaging statements regarding the title to property owned by plaintiff to plaintiff’s damage.” Hopkins does not specifically challenge this ruling, and we see no error. (See Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 343 [recording a notice of default is a privileged communication unless done with malice].)

D. Eighth and Ninth Causes of Action: Fraud

The trial court concluded the fraud claims failed because “after six opportunities to amend, plaintiff has failed to allege facts as opposed to conclusions showing specifically that [either] defendant should be liable for fraud.” Hopkins argues his fifth amended complaint stated a cause of action for fraudulent concealment of a material fact against Citi.

Hopkins relies on Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, in which our high court set forth the elements of fraud: “`”The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”‘” (Italics added.)

“Fraud allegations `involve a serious attack on character’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which `”`show how, when, where, to whom, and by what means the representations were tendered.'”‘ [Citation.] Further, when a plaintiff asserts fraud against a corporation, the plaintiff must `allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.] Less specificity in pleading fraud is required `when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy. . . .”‘” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

In support of his claim of fraud against Citi, Hopkins alleged that from May 2011 “to the present time,” two employees of Citi, David McGuiness and John Oushana, “repeatedly engaged [in] evasive conduct in successfully avoiding delivering to plaintiff Don Hopkins a copy of the July 2010 electronic check, e.g., the first check that . . . Homeward stated `bounced’ and based upon which . . . Homeward initiated foreclosure and filed a Notice of Default.” He described the Citi employees’ conduct as “stonewalling” and alleged they “hop[ed] that Mr. Hopkins would simply fall victim to the scam and go away.” The fraud claim fails because it lacks the required element of justifiable reliance. Hopkins claims defendants engaged in misconduct in July to October 2010, and he stopped making payments on his loan in April 2011 allegedly because of defendants’ misconduct. The “stonewalling,” however, allegedly began in May 2011, after Hopkins stopped making payments on his loan. Given the sequence of alleged events, it cannot be said that he justifiably relied on these employees’ conduct to his detriment.

Hopkins’s remaining allegations in support of his fraud claims are boilerplate language with no facts specific to defendants. As to Citi, Hopkins alleged “Defendant Citibank’s above-stated conduct [presumably referring to the two employees’ conduct] and concealments and misrepresentations were misleading, false and fraudulent. At the time said defendant engaged [in] the conduct and made the misrepresentations, said defendants willfully and/or negligently concealed and/or misrepresented the true facts, all for the purpose of defrauding and deceiving plaintiff and in violation of law and public policy.” He further alleged, “The aforementioned conduct of each and every defendant was intentional misconduct, misrepresentation, deceit or concealment of material fact(s) known to said defendant with the intention on the part of said defendant to deprive plaintiff of property or legal rights, or otherwise causing injury. . . .” We agree with the trial court that these generic allegations of deception and intent to defraud are insufficient to state a cause of action for fraud.

As to Homeward, Hopkins makes no argument regarding his fraud claim against the loan servicer in his opening brief. As a result, he has forfeited any challenge to the trial court’s ruling on this claim. (Koval v. Pacific Bell Telephone Co. (2014) 232 Cal.App.4th 1050, 1063, fn. 12 [“An appellant’s failure to raise an argument in its opening brief waives the issue on appeal.”].)

Based on the foregoing, we conclude the trial court properly sustained the eighth and ninth causes of action for fraud.

E. Tenth Cause of Action: Elder Abuse

The trial court ruled, “There are simply insufficient facts alleged showing that [either] defendant was responsible for the alleged conversion or responsible under a viable cause of action as a basis to state this claim [for elder abuse].” Hopkins argues on appeal that the trial court erred because (1) Hopkins was excused from continuing to make loan payments (and therefore he has alleged causation and damages), and (2) the claim is not barred by the statute of limitations. These arguments respond to some of the arguments made by defendants in support of their demurrers. However, Hopkins does not address the fundamental issue that he failed to allege sufficient facts, as opposed to legal conclusions, to support this claim.

Under Welfare and Institutions Code section 15610.30, “[f]inancial abuse” of an elder occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both” or “[a]ssists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a)(1) & (2), italics added.)

Citi argues, as it did below, that a claim of financial elder abuse must be alleged with particularity because the claim involves fraud. We also observe that, for purposes of the statute, taking property “for a wrongful use,” means the defendant breached a contract or engaged in “other improper conduct.” (Paslay v. State Farm General Insurance Company (2016) 248 Cal.App.4th 639, 657.)

We agree with Citi that Hopkins has not alleged sufficient facts to state a claim of elder abuse. He alleged against all defendants: “Each and every defendant took, secreted, appropriated and retained plaintiff’s real or personal property, his home equity, via a deceitful loan and deed of trust secured on plaintiff’s home. Each and every defendant took said property for wrongful use and with intent to defraud.” “Defendants, and each of them, knew or should have known that plaintiff had a right to retain his home equity and that the hard money lending and foreclosure operation was a sham. Each and every defendant acted in bad faith pursuant to W.I.C. § 15610.30(b)(2).” “Each and every defendants’ actions were fraudulent, repeated and were committed with the willful intention and design to injure plaintiff and his property rights.” Hopkins alleged he was a senior and disabled, and “Each and every defendant knew or should have known that plaintiff is disabled and elderly. . . .”

These boilerplate allegations contain no facts regarding wrongful use or intent to defraud by either defendant. Moreover, to the extent Hopkins made allegations beyond parroting the language of the statute, he referred to a “deceitful loan and deed of trust.” But neither Homeward nor Citi is alleged to be a party to the loan agreement. We conclude Hopkins failed to state a claim of elder abuse, and the trial court properly sustained defendants’ demurrers to the tenth of action.

F. Eleventh Cause of Action: Unfair Competition

The trial court ruled that the claim of unfair competition failed because Hopkins “did not establish standing, a predicate [to a] viable underlying claim showing [either] defendant’s alleged conduct was unfair or unlawful in support of this claim.”

Private standing to bring a claim under the unfair competition law (UCL) “`is limited to any “person who has suffered injury in fact and has lost money or property” as a result of unfair competition.'” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320-321, quoting Bus. & Prof. Code, § 17204.) Here, the trial court found that Hopkins lacked standing, presumably accepting defendants’ argument that Hopkins could not allege damages because he admittedly stopped making payments on the loan in April 2011. But, as we explained in our discussion of negligence, Hopkins sufficiently alleged harm in the form of wrongly imposed late fees and misallocated payments, separate from whether his own action was the cause of the recording of default.

The question remains whether Hopkins alleged sufficient facts to support his claim.

The UCL defines “unfair competition” to “include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising. . . .” (Bus. & Prof. Code, § 17200.) “`Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are [1] unlawful, or [2] unfair, or [3] fraudulent. “In other words, a practice is prohibited as `unfair’ or `deceptive’ even if not `unlawful’ and vice versa.”‘” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)

In the fifth amended complaint, Hopkins relied on “the above-stated tortious conduct,” incorporating all prior allegations, to support his claim under the unfair competition law (UCL). He contends his allegations satisfy “the `deceptive’ conduct prong of the UCL,” i.e., the “fraudulent” variety of unfair competition. He also argues defendants’ breaches of their duties of care constitutes an unfair business practice under the UCL.

Our conclusion that Hopkins has not stated a claim of fraud is not dispositive. “The fraudulent business practice prong of the UCL has been understood to be distinct from common law fraud. `A [common law] fraudulent deception must be actually false, known to be false by the perpetrator and reasonably relied upon by a victim who incurs damages. None of these elements are required to state a claim for injunctive relief’ under the UCL. [Citations.] This distinction reflects the UCL’s focus on the defendant’s conduct, rather than the plaintiff’s damages, in service of the statute’s larger purpose of protecting the general public against unscrupulous business practices.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 312.)

It has been held that misleading a borrower about the status of loan modification or pending foreclosure is fraudulent or unfair conduct for purposes of the UCL. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 85 [“It is fraudulent or unfair for a lender to proceed with foreclosure after informing a borrower he or she has been approved for a loan modification, or telling the borrower he or she will be contacted about other options and the borrower’s home will not be foreclosed on in the meantime. . . . It is fraudulent or unfair for a lender to misrepresent the status or date of a foreclosure sale.”].) Here, Hopkins alleged Citi told him his payments to Homeward were being made every month, but Homeward improperly charged late fees, recorded missed payments, and sent overdue notices. Thus, under Hopkins’s allegations, either Citi misled him about payments made to Homeward, or Homeward assessed late fees that were not warranted and misallocated payments. We conclude these are sufficient allegations of fraudulent or unfair conduct for purposes of the UCL. Accordingly, the trial court erred in sustaining defendants’ demurrers to the eleventh cause of action.

DISPOSITION

The judgments are reversed with respect to the fifth cause of action (negligence against Homeward), the sixth cause of action (negligence against Citi), and the eleventh cause of action (unfair competition against both defendants). The judgments are affirmed in all other respects. The parties shall bear their own costs on appeal.

Richman, Acting P.J. and Stewart, J., concurs.

[1] Hopkins filed a notice of appeal on December 17, 2014, although judgments in favor of Homeward and Citi were not filed until January 27, 2015. We elect to treat the premature notice of appeal “as filed immediately after entry of judgment.” (Cal. Rules of Court, rule 8.104(d)(2); see Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1239, fn. 2.)

[2] At oral argument in July 2017, we were told, for the first time, that Hopkins had filed for bankruptcy. We continued oral argument and asked the parties for supplemental briefing on what effect Hopkins’s bankruptcy case has on this appeal. In response, the parties agree the appeal is not subject to an automatic stay under 11 United States Code section 362. We agree with the parties. A bankruptcy stay only applies to actions against the debtor, so it does not apply in this case, where the debtor (Hopkins) initiated the lawsuit. (See Shah v. Glendale Federal Bank (1996) 44 Cal.App.4th 1371, 1375.)

In their supplemental briefing, Homeward and Citi take the position that judicial estoppel applies to this appeal because Hopkins did not list the current lawsuit as an asset in his bankruptcy schedules and, where he did list the lawsuit, he did not give it a value. Therefore, they argue, Hopkins has represented to the bankruptcy court that this lawsuit has no value, and he should be barred from continuing to claim in this court that the lawsuit does have value. Hopkins responds, first, judicial estoppel does not apply and, second, even if it does, this court should not decide the issue on appeal. He is certainly correct on the second issue.

Judicial estoppel applies “when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183, italics added.) “[N]ondisclosure in bankruptcy filings, standing alone, is insufficient to support the finding of bad faith intent necessary for the application of judicial estoppel.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1019; see also Kelsey v. Waste Management of Alameda County (1999) 76 Cal.App.4th 590, 598-600[evidence that plaintiff failed to list his claim against defendant in his bankruptcy proceedings was insufficient to establish defendant was entitled to summary judgment based on judicial estoppel].) Here, it is a question of fact whether Hopkins’s failure to identify the current lawsuit as an asset in his bankruptcy filings was the result of ignorance or mistake. (We note that Hopkins’s attorney told the court during September 19, 2017, oral argument that Hopkins had amended his bankruptcy filings so that the lawsuit was listed as an asset of unknown value.) This court is not in a position to resolve issues of fact. Accordingly, we do not consider whether judicial estoppel applies in this case. Defendants are free to raise the issue of judicial estoppel in the trial court.

[3] ABC was named a defendant in the operative complaint, but it is not a party to this appeal.

[4] For clarity and consistency, we will refer to this defendant as “Homeward.” We note that this defendant appeared in court as “AHMS” until at least October 2011, and in July 2012, identified itself as “Homeward Residential, Inc. f/k/a American Home Mortgage Servicing, Inc.”

[5] The first four causes of action were against ABC only and are not relevant to this appeal.

[6] Hopkins further alleged Citi failed to return funds to his account and falsified his monthly account statements so that it appeared the payments were made to Homeward, “thereby secreting and converting the money for itself.”

[7] Although Citi referred to an exhibit attached to the prior complaint, this exhibit (the “Citibank Check Image Delivery”) was also attached to the fifth amended complaint.

[8] In addition, Homeward argued the claim of slander of title failed because the recording of a notice of default would not cast doubt as to Hopkins’s ownership interest in the Oakland house, and the elder abuse claim failed because Homeward did not originate the underlying loan and because the claim was barred by the statute of limitations. Homeward also generally argued Hopkins failed to allege facts showing conduct by Homeward caused him damage.

[9] We observe that Homeward’s position that Hopkins was behind on his loan in March 2011 is inconsistent with Citi’s assertion that it delivered monthly checks to Homeward from July 2010 through March 2011. (And, of course, Homeward’s position conflicts with Hopkins’s allegation that he made timely payments until April 2011.)

[10] Specifically, on July 1, 2010, there is an entry for a payment of $2,560.10, but on July 7, 2010, there is an entry for “return check.” (Capitalization omitted.) On July 16, 2010, there is a late charge assessment of $128.01, and on July 20, 2010, another payment for $2,560.10 is recorded. Similarly, in August, September, and October, there are entries for payment on the first or second day of the month, followed by entries for “return check” a few days later. In August, after the entry for “return check,” a subsequent payment was recorded on August 9, 2010. In September, after the entry for “return check,” a payment was recorded on September 14, 2010. In October, however, a late charge was assessed on October 18, 2010, and there is no record of payment after the entry for a “return check.”

[11] Further, Hopkins’s monthly account statement from Citi for October 2010 (which was attached to the fifth amended complaint) showed a payment to Homeward of $2,560.

[12] At the outset, we reject Homeward’s position that Hopkins should be precluded from arguing the merits of his fifth amended complaint. Hopkins filed an untimely opposition to Homeward’s demurrer, and Homeward claims that, as a result, the trial court refused to consider his papers and sustained its demurrer as unopposed. The court order sustaining Homeward’s demurrer describes the demurrer as “unopposed,” but also states that a tentative ruling was published and contested and the “matter was argued and submitted.” The trial court considered the legal arguments raised in Homeward’s demurrer, heard oral argument, and then ruled on the legal merits of the demurrer. Under these circumstances, we do not believe Hopkins has forfeited all challenges to the court’s ruling. In any event, “we may . . . consider new theories on appeal to challenge or justify the trial court’s rulings” because demurrers raise only questions of law. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1163 (Daniels).)

[13] “The Biakanja factors are six nonexhaustive factors: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct, and (6) the policy of preventing future harm.” (Jolley, supra, 213 Cal.App.4th at p. 899, citing Biakanja, supra, 49 Cal.2d at p. 650.)

[14] Homeward takes the position that loan servicers do not owe a legal duty to borrowers in connection with the general servicing of residential mortgage loans, citing many federal district court cases that generally state this rule. But all of the cases Homeward cites were decided without the benefit of Daniels, and all but one was decided before Alvarez. Suffice it to say we do not find these cases persuasive authority for Homeward’s position. We likewise are unpersuaded by Homeward’s attempts to distinguish Jolley and Alvarez on the facts. The same reasoning and application of the Biakanjafactors that led the courts to conclude a duty of care existed in Jolley and Alvarez lead us to conclude a duty of care exists under the facts Hopkins has alleged.

[15] Homeward argues the CAAS must “trump” Hopkins’s allegations. To the extent Homeward is arguing we must accept the contents of the CAAS as true under the truthful pleading doctrine, we reject this argument. It is clear Hopkins did not attach the CAAS and his account statements from Citi to his fifth amended complaint so as to adopt the truth of their entire contents. To the contrary, he attached these documents, in part, to demonstrate that they contradicted each other and to show that Homeward kept an incorrect record of his loan payment history. Under these circumstances, there is no basis for Homeward to invoke the truthful pleading doctrine to defeat Hopkins’s allegations. Nor is there any basis for accepting the truth of the contents of the CAAS through judicial notice. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375 [“Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning”; “`judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.'”].) Hopkins disputes the payment history described in the CAAS, and, unlike a contract, the CAAS has no “independent legal significance.” (Cf. Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 758 [in deciding a demurrer, court properly could take judicial notice of a purchase and assumption agreement, which established “facts deriving from the independent legal significance of a contract,” and the facts were not reasonably subject to dispute].)

[16] We also note that the CAAS showed late fees were imposed in July and October 2010 and there was a missed payment in October 2010.

[17] Both defendants argue that Hopkins cannot establish damages because he admittedly stopped making payments on the loan in April 2011, and therefore he is responsible for the recording of the notice of default. Should Hopkins fail to prove defendants were the cause of the recording of the notice of default, “damages will be affected accordingly, but not necessarily eliminated.” (Alvarez, supra, 228 Cal.App.4th at pp. 948-949.)

In addition, for the first time in oral argument on September 19, 2017, both defendants argue that Hopkins’s claims against them should be governed by contract law, not tort law. We decline to consider this argument, “which the briefs do not raise or discuss and which is asserted for the first time in oral argument” (Archdale v. American Intern. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 472) and which is based on a case that is not citeable.

 

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TFH 10/15 | Foreclosure Workshop #48: Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes?

TFH 10/15 | Foreclosure Workshop #48: Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes?

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 – October 15

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Foreclosure Workshop #48: Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes?

 

 

In recent years, particularly in Florida, there has been increasing litigation regarding the applicability of the statute of limitations in foreclosure cases, and now courts in other states have started to wrestle in the mortgage context with this yet another confusing area of American law.

On prior shows we have discussed how the statute of limitations, which sets a time bar controlling how long litigants have to sue on their claims in court, should be and is being applied to mortgage loans, and once again the treatment of homeowners is shown to differ when compared to how the statute of limitations is applied in other contract actions.

Even though, for instance, a mortgage (and deed of trust) represent security for payment of the underlying debt and once the underlying debt obligation is uncollectible, having been paid or having expired by operation of law, it logically follows that the security for payment of the debt is extinguished as well.

But the requirements of logic never seem to deter foreclosure attorneys, who in Hawaii have now begun to argue the opposite, that a mortgage continues to be enforceable up to twenty years even though the note has become unenforceable due to the expiration of the applicable contract statute of limitations.

Will this counter-intuitive argument be coming to your jurisdiction soon?

Tracing the more than one-hundred-year-old origins of this erroneous argument is not only important in order to block its likely use by foreclosure attorneys in the future, but is important also to expose some of the most alarming weaknesses in the misuse of the doctrine of stare decisis which requires that past judicial decisions be followed no matter what, particularly by lower courts.

Bad precedents can become, like deadly viruses, fatal to personal and property rights.

And lastly, this newly emerging and erroneous statute of limitations argument clearly illustrates why homeowners need to unite and collectively support the Homeowners SuperPAC as the only means of organizing to effectively combat the otherwise proliferation of so many of these bad precedents being generated by what we have described on past shows as The Rule Ritual.

Listen to today’s show, posted on our website at www.foreclosurehour.com, and find out how you can change American history, beat the banks, by joining the Homeowners SuperPAC today.

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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

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The Foreclosure Hour 12

 

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Citi, Deutsche Bank, HSBC agree to pay $132 million to settle Libor claims

Citi, Deutsche Bank, HSBC agree to pay $132 million to settle Libor claims

Reuters-

Citigroup Inc, Deutsche Bank AG and HSBC Holdings Plc have agreed to pay a combined $132 million to settle a U.S. class action brought by futures traders accusing them of manipulating the Libor benchmark interest rate, according to a U.S. court filing on Wednesday.

Citi, Deutsche Bank and HSBC agreed to pay $33.4 million, $80 million and $18.5 million, respectively, according to the filing in Manhattan federal court. The settlements must be approved by U.S. District Judge Naomi Reice Buchwald.

The money would go to proposed classes consisting of anyone who traded in Eurodollar futures on exchanges, including but not limited to the Chicago Mercantile Exchange, between Jan. 1, 2003 and May 31, 2011, according to the filing.

[REUTERS]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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