Free Press Online-

Last month, the Maine Supreme Court issued a stunning rebuke to national mortgage companies that have flagrantly committed fraud and abuse against homeowners across the state. In its groundbreaking decision, the state’s highest court ruled in the case Federal National Mortgage Association (Fannie Mae) v. Deschaine that the governmentbacked mortgager Fannie Mae is barred from bringing another foreclosure suit against Patricia and Paul Deschaine of Lincoln after a lower court dismissed its previous foreclosure action “with prejudice” for failing to comply with a court order to file witness and exhibit lists.

That ruling will have a major impact on other pending foreclosure cases, says homeowner defense attorney Tom Cox of the group Maine Attorneys Saving Homes. Cox says he and another attorney intend to use the decision to appeal a dozen foreclosure cases, which will entail filing a “quiet title” action to assert that the proper owners of the properties are the occupants and not the former mortgage holders.

“I’m sitting on 8 to 10 case files right now where there have been either defense judgements for homeowners or they have been dismissals with prejudice,” said Cox, who filed an amicus brief in FNMA v. Deschaine. “Suddenly those are now affected by this decision. Any lawyer who is reasonably astute should be able to take that Deschaine decision and use it to go to court and bring a quiet title action.”

[FREE PRESS ONLINE]

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Statement of Acting United States Attorney David C. Weiss on the Wilmington Trust Corporation Settlement

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H/T LEXOLOGY

 

JANINE CARBONE, on behalf of plaintiff and a class, Plaintiff,
v.
CALIBER HOME LOANS, INC., Defendants.

No. 15-CV-5190 (JS) (GRB).United States District Court, E.D. New York.September 19, 2017.Janine Carbone, Plaintiff, represented by Abraham Kleinman, Kleinman, LLC.

Janine Carbone, Plaintiff, represented by Tiffany N. Hardy, Edelman Combs Latturner & Goodwin LLC.

Caliber Home Loans, Inc., Defendant, represented by David T. Biderman, Perkins Coie LLP, pro hac vice, Jalina Joy Hudson, Perkins Coie & Manny Joseph Caixeiro, Perkins Coie LLP.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Plaintiff Janine Carbone (“Carbone” or “Plaintiff”) filed an Amended Complaint alleging that Defendant Caliber Home Loans, Inc. violated the Fair Debt Collection Practice Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq. (Am. Compl., Docket Entry 23.) Her initial Complaint failed to plausibly allege that she was a “consumer” within the meaning of the statute. Because Plaintiff has failed to cure this deficiency, the Court GRANTS Defendant’s motion to dismiss the Amended Complaint. (Mot. to Dismiss, Docket Entry 24.)

BACKGROUND

The Court assumes familiarity with the record but summarizes the relevant portions below. In doing so, the Court accepts all well-pled facts as true and draws all reasonable inferences in Plaintiff’s favor. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006).

Carbone has a residential mortgage loan serviced by Caliber Home Loans, Inc. (Am. Compl. ¶ 15.) Carbone signed the mortgage, but her husband signed the promissory note.^[1] (Id.) As a borrower, Carbone has the right to redeem the property if the principal, interests, and costs are paid. (Id. ¶ 18.) Unfortunately, the Carbones fell behind on their payments. As required by New York law, Caliber sent a pre-foreclosure notice. (Pre-Foreclosure Notice, Am. Compl. Ex. D, Docket Entry 23-4.) This notice, along with a default letter, explained, among other things: “This is an attempt by a debt collector to collect a debt and any information obtained will be used for that purpose.” (Pre-Foreclosure Notice at 3; Default Ltr., Am. Compl. Ex. E, Docket Entry 23-5, at 3 (omitting capitalization).)

Unhappy with these letters, Carbone filed this lawsuit against Caliber on September 8, 2015. (See Compl., Docket Entry 1.) She alleges that these communications contained “false, deceptive, or misleading representation[s]” in violation of Section 1692(e) of the FDCPA and legally deficient advisories in violation of Section 1692(g). (Compl. ¶¶ 30-32, 37, 43.) Caliber filed a motion to dismiss, which the Court granted. (Sept. 2016 M&O, Docket Entry 22, at 11-12.) In so ruling, the Court concluded that Carbone failed to plausibly allege that she was a “consumer” under the FDCPA and thus Caliber could not have violated Sections 1692(e) or (g). (Id. at 6-11.)

Plaintiff amended her Complaint on October 31, 2016. While this new version amplifies a few facts, none help her cause. (See, e.g., Am. Compl. ¶¶ 16-19.) As a result, the Court grants Defendant’s motion to dismiss the Amended Complaint.^[2]

DISCUSSION

I. Standard of Review

To avoid dismissal, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

II. FDCPA Claims

To assert a claim under the FDCPA, a plaintiff must allege, among other things, that she is a “consumer.” Polanco v. NCO Portfolio Mgmt., Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015) (citing Plummer v. Atl. Credit & Fin., Inc., 66 F. Supp. 3d 484, 488 (S.D.N.Y. 2014)). The FDCPA defines a “consumer” as “any natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3).

To date, the Second Circuit Court of Appeals has not addressed “whether the initiation of a foreclosure action is done in connection with the collection of any debt.” Carlin v. Davidson Fink LLP, 852 F.3d 207, 213 n.1 (2d Cir. 2017) (internal quotation marks and citation omitted). It is true, as Plaintiff argues (Pl.’s Br. at 14), that the Sixth Circuit classifies mortgage foreclosure as “debt collection under the FDCPA.” Glazer v. Chase Home Fin. LLC, 704 F.3d 453, 461 (6th Cir. 2013). But “[t]he Sixth Circuit’s rationale in Glazer has been rejected by numerous other Circuits,” including the Fifth, Ninth, and Eleventh Circuits. Salewske v. Trott & Trott P.C., No. 16-CV-13326, 2017 WL 2888998, at *5 n.2 (E.D. Mich. July 7, 2017) (collecting cases); Aurora Loan Servs., LLC v. Kmiecik, 992 N.E.2d 125, 133 (Ill. App. Ct. 2013) (“It appears that the majority view is that mortgage foreclosure is not debt collection within the meaning of the FDCPA.”). After all, a mortgage is a security interest, not a payment obligation. Hill v. DLJ Mortg. Capital, Inc., No. 15-CV-3083, 2016 WL 5818540, at *7 (E.D.N.Y. Oct. 5, 2016), aff’d on other grounds, 689 F. App’x 97 (2d Cir. 2017). And “[t]he object of a non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower.” Vien-Phuong Thi Ho v. ReconTrust Co., NA, 858 F.3d 568, 572 (9th Cir. 2016), pet. for cert. docketed, No. 17-278 (U.S. Aug. 22, 2017).

Pre-foreclosure notices, like the one Caliber sent, “are entirely different from the harassing communications that the FDCPA was meant to stamp out.” Id. at 574. In fact, New York law requires that these notices be disseminated to protect homeowners. See N.Y. REAL PROP. ACTS. LAW § 1304(1); Avail Holding LLC v. Ramos, No. 15-CV-7068, 2017 WL 979027, at *2 (E.D.N.Y. Mar. 10, 2017) (“In response to the mortgage foreclosure crisis, New York enacted . . . a series of legal protections and foreclosure prevention opportunities to homeowners at risk of losing their homes.”).^[3]

Of course, Caliber’s Pre-Foreclosure Notice contained debt-demand language: “This is an attempt by a debt collector to collect a debt and any information obtained will be used for that purpose.” (Pre-Foreclosure Notice at 3; Default Ltr. at 3 (omitting capitalization).) “This statement, however, does not convert the non-judicial foreclosure into an attempt to collect a debt under the FDCPA.” Evalobo v. Aldridge Pite, LLP, No. 16-CV-0539, 2016 WL 7379021, at *5 (D. Nev. Dec. 20, 2016) (analyzing nearly identical language) (citation omitted). As noted above, Caliber sent its notice to meet statutory requirements, not to collect any debt. Thus, Mrs. Carbone has failed to plausibly allege that she is a “consumer” under the FDCPA. She is not “allegedly obligated to pay a[ ] debt,” 15 U.S.C. § 1692a(3), and so her claims under Sections 1692(e) and (g) fail for that reason.

III. Leave to Amend

“When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint,” Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d Cir. 1999), unless doing so would be futile, Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 399 (S.D.N.Y. 2002). Carbone already filed an Amended Complaint and failed to identify other communications from Caliber that could be construed as attempts to collect a debt against her and thus serve as the basis for FDCPA claims. On that basis, the Court DENIES leave to amend.

CONCLUSION

Defendant’s motion to dismiss (Docket Entry 24) is GRANTED, and Plaintiff’s claims are DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to enter judgment in favor of Defendant and mark this matter CLOSED.

SO ORDERED.

[1] Michael Carbone filed a separate lawsuit, which is currently pending. See Case No. 15-CV-4914 (E.D.N.Y.).

[2] Carbone raises a number of subsidiary arguments, which the Court already rejected in its prior order. (Sept. 2016 M&O at 9-10.) In short, Carbone attached “Federal Truth-in-Lending Disclosure Statements,” (TILA Stmts., Am. Compl. Ex. B, Docket Entry 23-2), but the Amended Complaint, like the initial version, asserts no TILA violations. And contrary to Plaintiff’s assertions (Pl.’s Br., Docket Entry 26, at 6-7), only a consumer can bring Section 1692(e) claims, Papetti v. Rawlings Fin. Servs., LLC, 121 F. Supp. 3d 340, 348, 353 (S.D.N.Y. 2015).

[3] At any rate, out-of-circuit courts have permitted FDCPA claims if the debt collector also seeks a deficiency judgment. Kabir v. Freedman Anselmo Lindberg LLC, No. 14-CV-1131, 2015 WL 4730053, at *4 (N.D. Ill. Aug. 10, 2015); Goodin v. Bank of Am., N.A., 114 F. Supp. 3d 1197, 1206-07 (M.D. Fla. 2015). But in New York, “defendants cannot file a motion for a deficiency judgment against plaintiff until after the foreclosure sale,” so Caliber has “not engaged in any conduct related to the collection of money to date.” See Hill, 2016 WL 5818540, at *7, n.9.

 

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

National Mortgage News-

Ocwen Financial has reached a settlement with 10 states under which it may not acquire servicing rights for eight months but will avoid financial penalties.

The settlement does not end the lawsuits filed in April against the West Palm Beach, Fla., company by the Consumer Financial Protection Bureau and 19 other states. In response, Ocwen sued the CPFB, challenging its constitutionality.

Allegations that Ocwen mishandled escrow accounts were at the heart of the actions brought by the 10 states that took part in the settlement, and are the subject of the pending suits.

[NATIONAL MORTGAGE NEWS]

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

Forbes-

Novelist Thomas Wolfe once wrote that he marveled how “a silver dollar, if held close enough to the eye, could blot out the sun itself.”

That may apply to some administrators of the Hardest Hit Fund, which was created in 2010 to assist state housing finance agencies help homeowners in danger of foreclosure. Unfortunately, a number of them viewed the funds as a private piggy bank.

More than $7.6 billion was destined for low-income homeowners facing foreclosure, with the Department of the Treasury last year committing an additional $2 billion to the fund. Any expense the state agencies charged to the program were supposed to be essential to easing loan modifications, according to federal guidelines.

[FORBES]

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

Propublica-

In a scandal that extended wider than was previously known, Wells Fargo said it would offer refunds to tens of thousands of customers who were improperly charged fees on home mortgages.

ProPublica first reported earlier this year that the bank was chiseling customers by making them pay to extend interest rates on loans even when the delays were the bank’s fault. Current and former employees said at the time that the practice was especially prevalent in the Los Angeles area and Oregon. As it turns out, about 10 percent of the affected mortgages were in those two regions, and the rest were scattered nationwide, according to a person familiar with the issue. A Wells Fargo spokesman did not immediately return a call for comment.

As is typical in home loans, Wells Fargo allowed customers to lock in a promised mortgage rate for a given period of time. When a deadline for mortgage paperwork was missed, a fee would be incurred. Even when the bank was responsible for the delay, management frequently forced loan officers to blame the customers and charge them. The fees were typically about $1,000 to $1,500, depending on the size of the loan.

[PROPUBLICA]

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Bloomberg-

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

*The Homeowners SuperPAC is federally registered, just now actively organizing throughout the United States. We do not endorse political candidates or political parties, but instead seek to educate judges, lawyers, legislators, legal educators, homeowners, and the general public to bring about needed reforms.

Annual membership fees are $100 for each individual. If you wish to contribute more, we ask that you do so by financially helping others to app¡y for membership(s) instead in their own name(s) at $100 each.

First, SuperPACs have very detailed accounting requirements that make accounting for small contributions comparatively expensive and unduly burdensome. To save accounting costs, it is expeditious to account for all contributions in the same amount of $10O the lowest amount feasible in terms of accounting costs for a SuperPAC. Of course, if you wish to make a major financial contribution personally we will be pleased to ass¡st you; please email us at info@foreclosurehour.com.

Second, to be effective we not only need to raise a significant amount of money, but we also need to have a significant amount of members. There are five big banks and about one-hundred securitized trusts, compared to one-hundred million homeowners in the United States. Our goal is to raise $100 from one million homeowners 1% of all homeowners in the United States). Achieving anywhere near that goal will surely get us the attention and secure the changes needed.

All Members will exclusively receive free periodic newsletters regard the progress of your Homeowners SuperPAC and other materials as we expand. The ultimate direction and success of the Homeowners SuperPAC will be the responsibility of our State D¡rectors, whose activities will be reported in our Newsletter. For details concerning the goals of the Homeowners SuperPAC, please listen to Gary’s and John’s past broadcasts found on www.foreclosure hour.com, especially their October l, 2O17 radio show.

20171001233827_1_1 by DinSFLA on Scribd

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LEXOLOGY-

Homeowners’ associations have a more robust tool for forcing mortgage lenders to pay delinquent assessments following a September 14 decision by the Nevada Supreme Court. Nevada HOAs have enjoyed a super-priority lien under NRS 116.3116 for nine months of unpaid assessments preceding institution of foreclosure proceedings, in addition to certain charges for maintenance and nuisance abatement. In Property Plus Investments, LLC, v. Mortgage Electronic Registration Systems, Inc., the court found that this super-priority lien is not a “one-shot offer,” but can be revived even after a previous super-priority lien has been discharged.

In Property Plus, the HOA recorded a notice of lien in 2010 for unpaid assessments on a property securing a $215,000 mortgage loan. The loan servicer for the mortgage lender attempted to pay $522 to the HOA, representing nine months’ worth of assessments, but the HOA rejected the payment. Subsequently, the property owner entered a payment plan with the HOA, and the HOA released the 2010 lien. In 2012, however, the HOA recorded a second notice of lien for unpaid assessments. That time, the property went to a foreclosure sale and sold to a new owner for $7,500. The purchaser at the sale then brought a quiet title suit, claiming that the sale foreclosed on the HOA’s super-priority lien and extinguished the first mortgage. The lender countered that its $522 payment extinguished the super-priority portion of the lien and that any foreclosure thereafter could not impact the mortgage.

[LEXOLOGY]

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TRD-

Why did Manhattan District Attorney Cyrus Vance Jr. abruptly drop a criminal case against Donald Trump Jr. and Ivanka Trump in August 2012? A new report suggests money may have something to do with it.

The DA’s office believed the Trump children repeatedly lied to condo buyers by inflating their sales success at the Trump Soho development, had solid email evidence to support it, and were deep into a criminal investigation, according to a joint report by ProPublica, the New Yorker and WNYC. Then, on Aug. 3, 2012, Vance dropped the case. The decision came four months after a private meeting between Vance and Trump’s personal attorney Marc Kasowitz.

A month after the decision, in September, Kasowitz contacted Vance’s campaign about hosting a fundraiser for his re-election that would raise $32,000 in January. He raised another $9,000 at another fundraiser in October 2013. And Kasowitz had also donated $25,000 to Vance in early 2012, although the DA returned that money prior to the meeting.

[TRD]

 

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JUSTIN FRIEDLE and SANDRA FRIEDLE, Appellants,
v.
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, as successor-in-interest to JPMORGAN CHASE BANK, N.A., as trustee for STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., BEAR STEARNS ALT-A TRUST, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2005-10, Appellee.

No. 4D15-1750.District Court of Appeal of Florida, Fourth District.September 27, 2017.Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, L.T. Case No. CACE12-32115, Kathleen D. Ireland, Judge.

Thomas Erskine Ice of Ice Appellate, Royal Palm Beach, for appellants.

William L. Grimsley and N. Mark New, II of McGlinchey Stafford, Jacksonville, for appellee.

William P. Keller of Akerman LLP, Fort Lauderdale, and Nancy M. Wallace of Akerman LLP, Tallahassee, for Amicus Curiae Mortgage Bankers Association.

ON MOTION FOR REHEARING

WARNER, J.

We grant the motions for rehearing and clarification filed by appellee and amicus, withdraw the opinion, and substitute the following opinion in its place.

Appellants challenge a final judgment of foreclosure, contending that the Bank failed to prove standing. Because the appellee did not prove that the Bank had possession of the note and was thus a holder at the time of the filing of the complaint, we reverse.

The standard of review in determining whether a party has standing to bring an action is de novo. Boyd v. Wells Fargo Bank, N.A., 143 So. 3d 1128, 1129 (Fla. 4th DCA 2014). To prove standing in a mortgage foreclosure case, the plaintiff must prove its status as a holder of the note at the time of the filing of the complaint as well as at trial. See Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195 (Fla. 4th DCA 2012). In this case, the foreclosing bank’s witness could not testify that the Bank had possession of the note prior to filing the complaint. The Bank conceded that it presented no testimony that its present servicer or its prior servicer had possession of the note at the inception of the foreclosure action.

At trial, the Bank attempted to prove possession of the note through a Pooling and Service Agreement (“PSA”). That document purports to show the transfer of the mortgage loan to the Bank as trustee. Appellant objected to the admission of this evidence, which the court allowed on the ground that it was self-authenticating under section 90.902, Florida Statutes (2016). While it was certified by the Securities and Exchange Commission (“SEC”) as being filed with that agency, and thus was self-authenticating, there is a difference between authentication and admissibility. Charles Ehrhardt explains the difference:

Documents must be authenticated before they are admissible evidence. . . . Even after a document is authenticated, it will not be admitted if another exclusionary rule is applicable. For example, when a document is hearsay, it is inadmissible even if it has been properly authenticated.

Charles W. Ehrhardt, Florida Evidence § 902.1 (2017 ed.). Here, the PSA purportedly establishes a trust of pooled mortgages, but this particular mortgage was not referenced in the documents filed with the SEC. Appellant objected that the document was hearsay, as none of the exceptions to the hearsay rule were established. The Bank did not present sufficient evidence through its witness to admit this unsigned document as its business record. While the witness testified that a mortgage loan schedule, which listed the subject mortgage, was part of the Bank’s business records, the mortgage loan schedule itself does not purport to show that the actual loan was physically transferred. And it is clear from the testimony that the witness had no knowledge of the workings of the PSA or MLS, nor did any other document or testimony show that the note was transferred to the Bank in accordance with the terms of the PSA. Therefore, the evidence in this case does not establish that this mortgage note was within the possession of the Bank as Trustee at the time suit was filed.^[1]

In its answer brief, the Bank also relies on Ortiz v. PNC Bank, National Ass’n, 188 So. 3d 923 (Fla. 4th DCA 2016), to support the court’s rulings under a tipsy coachman analysis. In Ortiz, we created a presumption of standing if the note attached to the complaint was the same as the note introduced at trial. We said:

[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

Id. at 925 (emphasis added). Here, the note attached to the complaint was not in the same condition as the original note introduced at trial, as pointed out by the appellants in their reply brief. Although the differences may seem minor, Ortizinfers possession at the time of filing suit where the copy attached to the complaint and the original are the same, as the copy must have been made from the original note at the time that the complaint was filed, without evidence to the contrary. Where the copy differs from the original, the copy could have been made at a significantly earlier time and does not carry the same inference of possession at the filing of the complaint. In this case, as Ortiz had not been decided at the time of the trial, no effort was made to explain the discrepancies in the condition of the note attached to the complaint or the original introduced into evidence. Thus, reliance on Ortiz under a tipsy coachman analysis is not appropriate on the record made in this case. Although appellate courts generally apply the law in effect at the time of the appellate court’s decision, Florida East Coast Railway Co. v. Rouse,194 So. 2d 260, 262 (Fla. 1966), the record must be sufficiently developed to support an alternative theory for affirmance. See State Farm Fire and Casualty Co v. Levine, 837 So. 2d 363 (Fla. 2002) (ruling that the court could not affirm a decision based on an alternative legal theory where the alternate ground had not been developed in the record, stating “The key to applying the tipsy coachman doctrine, permitting a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons, is that the record before the trial court must support the alternative theory or principle of law.”).

Because the Bank failed to prove its standing at the filing of suit, the court erred in entering the final judgment of foreclosure. We reverse and remand for vacation of the final judgment and entry of an involuntary dismissal of the complaint.

TAYLOR and LEVINE, JJ., concur.

[1] We have held in past cases that the PSA together with a mortgage loan schedule are sufficient to prove standing, but in those cases the witness offering the evidence appears to have been able to testify to the relationship of the various documents and their workings, or that the documents were admitted into evidence without objection. See, e.g., Boulous v. U.S. Bank Nat’l Ass’n., 210 So. 3d 691 (Fla. 4th DCA 2016).

 

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Reuters-

The main regulator for Wells Fargo & Co (WFC.N) is considering whether to sanction the U.S. bank over improperly charging customers for car insurance and mortgage loans, according to a source familiar with the matter.

The Office of the Comptroller of the Currency (OCC) has for weeks debated how to take action on the insurance and mortgage issues which came to light this summer, said the source.

And officials are considering whether to fault the bank for older consumer lending issues, said two sources familiar with the moves.

[REUTERS]

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DAVID A. KESTER, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,

v.

CITIMORTGAGE INC.; et al.,
Defendants-Appellees.

excerpt

CitiMortgage and CR Title (“Defendants”) knowingly caused the recording of
invalid property documents in violation of ARIZ. REV. STAT. (“A.R.S.”) § 33-
420(A). The district court granted Defendants’ motion to dismiss. We reverse and
remand.
1. Kester has standing to bring this action, despite the fact that A.R.S. § 33-
411(C) provides that “an instrument affecting real property containing any defect,
omission or informality in the certificate of acknowledgment and which has been
recorded for longer than one year . . . shall be deemed to have been lawfully
recorded on and after the date of its recording.”1
“The irreducible constitutional
minimum of standing consists of three elements. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016). Kester has adequately alleged all three elements. See Washington Env’tl
Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (“The plaintiff . . . bears the
burden of proof to establish standing ‘with the manner and degree of evidence
required at the successive stages of the litigation.’ (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992))).

First, “the recording of false or fraudulent documents that assert an interest
in a property may cloud the property’s title”; therefore, Kester has adequately
alleged “a distinct and palpable injury as a result of those clouds on [his former
property’s] title.” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 783 (9th
Cir. 2014) (quoting Stauffer v. U.S. Bank Nat. Ass’n, 308 P.3d 1173, 1179 (Ariz.
Ct. App. 2013)). Second, this injury is fairly traceable to Defendants’ conduct:
despite receiving notice of the revocation of Kristen Lindner’s notary commission,
Defendants allegedly continued to use her notary services to execute Assignments
of Deeds of Trust, Substitutions of Trustee, Notices of Default, and Notices of
Trustee Sale for three months. Third, Kester’s “injury would be redressed by an
award of statutory damages, which [A.R.S. § 33-420(A)] makes available to
prevailing [former property owners].” See Tourgeman v. Collins Fin. Servs., Inc.,
755 F.3d 1109, 1116 (9th Cir. 2014), as amended on denial of reh’g and reh’g en
banc (Oct. 31, 2014).

2. The district court incorrectly held that A.R.S. § 33-420(A) requires Kester
to allege “material” invalidity in the trustee’s sale documents. Arizona caselaw
does not clearly resolve the question whether a plaintiff must allege materiality to
[…]

David Kester v. Citimortgage, Inc. by DinSFLA on Scribd

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REUTERS-

Nomura Holdings Inc (8604.T) and Royal Bank of Scotland Group Plc (RBS.L) lost a U.S. court appeal on Thursday to overturn an order requiring them to pay $839 million for making false statements while selling mortgage-backed securities to Fannie Mae (FNMA.PK) and Freddie Mac(FMCC.PK).

The two banks had challenged the 2015 award on multiple grounds, including that the loss of the securities’ value was largely caused not by any false statements, but by the broader financial crisis in 2008.

A unanimous panel of the U.S. Court of Appeals for the 2nd Circuit in New York, however, rejected that and other arguments.

[REUTERS]

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