LAW360-

Ocwen Financial Corp. has agreed to buy rival mortgage servicer PHH Corp. for $360 million in cash, the companies announced Tuesday, just weeks after the D.C. Circuit rejected PHH’s constitutional challenges to the structure of the Consumer Financial Protection Bureau.

Portland Press Herald-

A legislative committee on Tuesday issued a three-way report on a bill that originally sought to protect the elderly from tax lien foreclosure.

The 7-3-1 “ought to pass” vote on L.D. 1629 followed a lengthy discussion by the Taxation Committee on an amendment presented by Nick Adolphsen, senior policy adviser to Gov. Paul LePage.

LePage initiated the bill after the town of Albion foreclosed on an elderly couple’s home and sold it in a sealed auction bid for $6,500 after a neighbor who came to the couple’s aid had offered $6,000. LePage said the property was worth $70,000 to $80,000 and that equity they had built into their home was lost. The new owner evicted the couple, who now live in a nursing home.

[PORTLAND PRESS HERALD]

No. 85 February 28, 2018 525
IN THE COURT OF APPEALS OF THE
STATE OF OREGON

U.S. BANK NATIONAL ASSOCIATION,
as Trustee for the Structured Asset
Investment Loan Trust, 2005-10,
its successors in interest and/or assigns,
Plaintiff-Respondent,

v.

Donald E. McCOY, III,
aka Donald Eugene McCoy, III,
Defendant-Appellant,
and
Virginia Lee McCOY,
aka Virginia Lee McLaughlin; et al.,
Defendants.

Jackson County Circuit Court
13CV03561; A159998
Timothy C. Gerking, Judge.
Argued and submitted October 25, 2016.
Jeffrey A. Long argued the cause and filed the briefs for
appellant.
Valerie I. Holder argued the cause for respondent. On the
brief were Molly J. Henry and Keesal, Young & Logan.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
DEHOOG, P. J.
Reversed and remanded.
______________
* Egan, C. J., vice Flynn, J. pro tempore; Aoyagi, J., vice Sercombe,
S. J.
526 U.S. Bank National Assn. v. McCoy
Case Summary: In this judicial foreclosure action, defendant appeals
an
award of summary judgment to plaintiff. Defendant assigns error to the
trial
court’s ruling denying his motion to strike the assertion, set forth
in a declaration
submitted by plaintiff, that plaintiff had possession of defendant’s
promissory
note at the time that it commenced its foreclosure action. Held: The
trial court
erred in denying the motion to strike because a portion of the
declaration consisted
of inadmissible hearsay. Without that inadmissible evidence, the
record
did not establish that plaintiff was entitled to judgment as a matter
of law.
Reversed and remanded.
Cite as 290 Or App 525 (2018) 527
DEHOOG, P. J.
In this judicial foreclosure action, defendant
appeals an award of summary judgment to plaintiff and
raises two assignments of error. In his first assignment,
defendant argues that the trial court erred in denying his
motion to strike the assertion, set forth in a declaration submitted
by plaintiff, that plaintiff had possession of defendant’s
promissory note at the time that it commenced its
foreclosure action. Defendant argues that the challenged
assertion was inadmissible, because it was not based on the
declarant’s personal knowledge and because it was hearsay.
Defendant further asserts that, without the inadmissible
portion of its declaration, plaintiff could not establish its
standing to enforce defendant’s promissory note and, therefore,
was not entitled to judgment as a matter of law. In his
second assignment of error, defendant argues that factual
disputes regarding the validity of the note’s indorsement
and plaintiff’s corresponding entitlement to enforce the note
precluded summary judgment. For the reasons that follow,
we agree with defendant’s contention that a portion of the
declaration consists of inadmissible hearsay and that, without
that inadmissible evidence, the record does not establish
that plaintiff was entitled to judgment as a matter of law.
Accordingly, we reverse and remand.1
The facts material to defendant’s appeal are largely
procedural and undisputed. In 2005, defendant borrowed
funds from BNC Mortgage, Inc. (BNC) to finance the purchase
of a home. Defendant executed a promissory note
payable to BNC and secured by a trust deed on the home.
Defendant subsequently defaulted on the loan, giving rise to
this foreclosure action. In 2009, following defendant’s default,
BNC assigned the trust deed and promissory note to plaintiff,
a mortgage-backed trust, and recorded that assignment.
Plaintiff filed the present action in 2013. Shortly
thereafter, plaintiff moved for summary judgment on its
foreclosure claim. See ORCP 47.2
1 Our disposition of defendant’s first assignment of error renders
it unnecessary
to further consider his second assignment of error.
2 Summary judgment is proper when “the pleadings, depositions,
affidavits,
declarations and admissions on file show that there is no genuine
issue as to any
528 U.S. Bank National Assn. v. McCoy
To prevail on its foreclosure claim, plaintiff must
show that the trust deed securing defendant’s promissory
note authorizes the remedy of foreclosure upon default; that
defendant is in default under the terms of the loan; and that
defendant failed to cure the default despite having had an
opportunity to do so. Churchill v. Meade, 88 Or 120, 124,
171 P 565 (1918) (stating those requirements for mortgage
foreclosure); Deutsche Bank Trust Co. Americas v. Walmsley,
277 Or App 690, 695, 374 P3d 937 (2016) (a trust deed securing
the sale of property may be judicially foreclosed in the
same manner as a mortgage). Central to this appeal, plaintiff
must also show that it is a party entitled to enforce the
note. Deutsche Bank Trust Co. Americas, 277 Or App at
695. In this case, plaintiff sought to establish its authority
to enforce the note through proof that it possessed the
note when it filed for foreclosure. See ORS 73.0301 (a person
entitled to enforce an instrument includes the “holder
of the instrument”); ORS 71.2010(2)(u)(A) (a “[h]older” is a
“person in possession of a negotiable instrument” (emphasis
added)); Investment Service v. Martin Bros., 255 Or 192, 195,
203-05, 465 P2d 868 (1970) (noting that the plaintiff became
the holder when it “received” the negotiable instrument and
stating that, to have standing to enforce a negotiable instrument,
the party must have been a holder when it filed its
complaint).
Plaintiff’s motion for summary judgment asserted
that plaintiff had introduced sufficient evidence as to each
element of its foreclosure claim, that there were no disputed
issues of material fact, and that it was entitled to judgment
as a matter of law. See ORCP 47 C (stating that standard
for summary judgment). In regard to plaintiff’s authority
to enforce the note—the only element at issue on appeal—
plaintiff’s motion stated that the note physically was “currently
with counsel for Plaintiff * * * and [wa]s available for
material fact and that the moving party is entitled to prevail as a
matter of law.”
ORCP 47 C; see Outdoor Media Dimensions Inc. v. State of Oregon, 331
Or 634,
638, 20 P3d 180 (2001). As the party with the ultimate burden of
establishing
its standing at trial, plaintiff is entitled to judgment as a matter
of law only if
it introduces sufficient evidence on that—and every other element of
its claim—
such that “no objectively reasonable juror could return a verdict
for the adverse
party on the matter.” ORCP 47 C; Robinson v. Lamb’s Wilsonville
Thriftway, 332
Or 453, 455, 31 P3d 421 (2001).
Cite as 290 Or App 525 (2018) 529
inspection.” Plaintiff’s motion further asserted that plaintiff
had established that it was the party entitled to enforce
the note through the declaration of a bank employee, which
plaintiff submitted in support of its motion for summary
judgment.
The declarant, Brown, stated that she was an
employee of Wells Fargo Bank (Wells Fargo), plaintiff’s loan
servicer, and that she was “competent to testify to the
[information
in the declaration] based upon [her] personal knowledge
of the facts and [her] review of the business records
herein.” Brown attested that she was familiar with Wells
Fargo’s business records relating to the servicing of defendant’s
mortgage and that
“[t]he copies of the Records attached to this Declaration are
copies of the Records described. These Records are maintained
in the ordinary course of business by Wells Fargo’s
personnel or staff, or persons acting under their control,
and were made at or about the time of the act, condition, or
event recorded.”
Brown further attested that she had “personal knowledge
of the manner in which the Records [were] maintained” and
that she had “reviewed and relied upon the Records in executing
[her] Declaration.” After providing that basis for her
knowledge, Brown stated additional facts specific to plaintiff’s
motion for summary judgment, including the following
paragraph:
“7.
“CURRENT STATUS OF NOTE AND DEED OF
TRUST: [Plaintiff] directly or through an agent, has
possession of the Promissory Note (‘Note’), which was
made, executed, and delivered for valuable consideration.
[Plaintiff] is either the original payee of the Note or the
Note has been duly indorsed. [Plaintiff] was the holder at
the time this foreclosure action was initiated and remains
the holder of the Note and beneficiary of the Deed of Trust,
and is entitled to enforce the Note under ORS 73.0301 and
ORS 86A.175.”
(Capitalization and underscoring in original.) Brown
attached five documents to her declaration: (1) a copy of the
promissory note; (2) a copy of the deed of trust; (3) a copy of
530 U.S. Bank National Assn. v. McCoy
the assignment; (4) a printout of defendant’s loan-payment
history; and (5) a copy of a demand letter sent to defendant.
Defendant opposed the summary judgment motion.
In relevant part, defendant argued that plaintiff had not put
forth admissible evidence that it possessed the note at the
time the complaint was filed and, therefore, had not established
that it was a holder with standing to enforce the note.
Defendant noted that the entire summary judgment record
consisted of plaintiff’s motion, Brown’s declaration, and the
five records attached to the declaration. In defendant’s view,
the only evidence in the record that purported to establish
plaintiff’s possession of the note at the relevant time was
paragraph 7 of Brown’s declaration. Defendant moved to
strike that paragraph of the declaration, arguing, among
other things, that it was not based on Brown’s personal
knowledge and that it was inadmissible hearsay. Defendant
argued that, because plaintiff had not put forth admissible
evidence establishing an essential element of its foreclosure
claim—that plaintiff had possession of the note at the time
it initiated the foreclosure action and therefore was a party
entitled to enforce the note—plaintiff was not entitled to
summary judgment.
At the hearing on plaintiff’s motion, the parties
disputed whether plaintiff had established possession of
the note at the relevant time. In addition to its summary
judgment filings, plaintiff purported to rely on its counsel’s
“certif[ication] as an officer of the Court that the note is
currently
in the possession of my office, [and] it has been made
available, or has been shown to [defendant].”
At the conclusion of the hearing, and without elaboration,
the trial court granted plaintiff’s motion for summary
judgment and entered a general judgment of foreclosure.
Defendant now appeals that ruling.
With that background established, we turn to defendant’s
first assignment of error, in which he asserts that the
trial court erred in denying his motion to strike paragraph 7
of the Brown declaration as inadmissible hearsay.3 Defendant
3 Because we conclude that that portion of the declaration was
inadmissible
hearsay, we do not reach defendant’s alternative argument that
paragraph 7
Cite as 290 Or App 525 (2018) 531
contends that, because that paragraph was based on out-ofcourt
statements—the Wells Fargo bank records that Brown
reviewed—her description of their contents was hearsay
to which no exception applied. See OEC 802 (“Hearsay is
not admissible except as provided in [OEC 801 to 806] or
as otherwise provided by law.”); OEC 805 (hearsay within
hearsay is not excluded if each part falls within an exception);
State v. Rodriguez-Castillo, 345 Or 39, 46, 188 P3d 268
(2008) (testimony is admissible under OEC 805 only if each
out-of-court statement satisfies a hearsay exception or exclusion).
Defendant acknowledges that the Wells Fargo records
that Brown purports to have relied on may have been admissible
under the hearsay exception for business records. See
OEC 803(6) (business records exception to the rule against
hearsay). He argues, however, that Brown’s declaration may
not describe their contents where, as here, the records that
are described are not produced in court. See ORCP 47 D
(requiring parties to attach or concurrently serve copies of
any papers referenced in affidavits or declarations).
From that premise, defendant argues that summary
judgment was improper because, without paragraph 7
of the declaration, the summary judgment record lacked any
evidence that plaintiff was entitled to enforce the note. See
ORCP 47 D (summary judgment must be based on “facts as
would be admissible in evidence”); Deutsche Bank Trust Co.
Americas, 277 Or App at 695 (a plaintiff must establish that
it has standing in order to prevail on a foreclosure claim).
For its part, plaintiff does not dispute that, to prevail
on summary judgment, it was required to establish,
through proof of possession, that it had standing to enforce
the note at the time of filing. Plaintiff asserts, however,
that its summary judgment materials satisfied its burden
of proof as to that element because no part of Brown’s declaration
is inadmissible. Plaintiff reasons that Brown’s assertion
that plaintiff was in possession of the note is admissible,
because Brown “had access to the servicer’s business
records relating to the servicing of [defendant’s] loan” and
of the declaration was inadmissible because it was not based on the
declarant’s
personal knowledge. As a practical matter, of course, testimony that
is based on
hearsay is not based on personal knowledge.
532 U.S. Bank National Assn. v. McCoy
“personally reviewed [defendant’s] loan file and testified
that those records reflect[ed] that [plaintiff] held the Note
at the time the foreclosure action was initiated.” Plaintiff
further asserts that, even if Brown’s statements are hearsay,
they are not inadmissible, because they fall within the
business records exception, OEC 803(6). In plaintiff’s view,
the business records exception permits testimony based on
a review of business records, without requiring introduction
of the records themselves into evidence.
Plaintiff alternatively asserts that, even if we conclude
that Brown’s averment regarding plaintiff’s possession
of the note is inadmissible, there is ample other evidence in
the summary judgment record to support the court’s ruling.
In support of that argument, plaintiff points to (1) the
complaint, which expressly alleged that plaintiff was the
holder of the note; (2) the summary judgment motion, which
asserted that plaintiff’s counsel had physical possession
of the note; (3) a copy of the original note and its assignment,
both of which were attached to the summary judgment
motion; and (4) the “certification” by plaintiff’s counsel
at the summary judgment hearing that he had possession
of the note and that plaintiff had possessed the note since
2006. For the reasons that follow, we disagree with each of
plaintiff’s arguments.
We begin our analysis by determining the appropriate
standard of review. We review a trial court’s evidentiary
ruling either for an abuse of discretion or for errors of law,
depending on the subject matter. State v. Cunningham, 337
Or 528, 536, 99 P3d 271 (2004), cert den, 544 US 931 (2005);
State v. Rogers, 330 Or 282, 310-11, 4 P3d 1261 (2000).
Whether Brown’s declaration contains inadmissible hearsay
presents a question of law; accordingly, we review that
determination for legal error. See Cunningham, 337 Or at
538. Similarly, we review an order granting summary judgment
for legal error. Ellis v. Ferrellgas, L.P., 211 Or App 648,
652, 156 P3d 136 (2007). In conducting that review, we view
the summary judgment record in the light most favorable to
defendant, the nonmoving party. ORCP 47 C.
With those standards in mind, we first consider
whether paragraph 7 of the Brown declaration is hearsay.
Cite as 290 Or App 525 (2018) 533
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted. OEC 801(3). Such out-of-court
statements are generally inadmissible unless they qualify
under a hearsay exception or are categorically excluded
from hearsay treatment. OEC 802 (hearsay is not admissible
except as provided in OEC 801 to 806); OEC 803 to 804
(setting forth exceptions to the hearsay rule); OEC 801(4)
(listing hearsay exclusions).
The attestations in paragraph 7 of Brown’s declaration
are hearsay, including the attestation as to plaintiff’s
possession of the note at the time it initiated the foreclosure
action. Brown does not couch her attestations in terms
of what Wells Fargo’s records “said”; that is, she does not
expressly reference an out-of-court statement. Viewing
the declaration as a whole, however, it is apparent—and
plaintiff acknowledges—that the attestations are based on
Brown’s contemporaneous review of the contents of Wells
Fargo’s business records. Cf. West v. Allied Signal, Inc., 200
Or App 182, 190, 113 P3d 983 (2005) (under ORCP 47 D, the
court reviews a supporting affidavit as a whole to determine
whether an objectively reasonable person would understand
its contents to be based on the affiant’s personal knowledge).
The only stated bases for Brown’s knowledge of any facts
are her employment by Wells Fargo and her corresponding
familiarity with, and review of, her employer’s records.
Paragraphs 4 through 6, 8, and 9 each reference specific
documents found in those records and attached to the declaration.
Brown concludes her attestation with, in relevant
part, “I make the above declaration based on my review
[of the] attached documents * * *.” And, as noted, plaintiff
argues in its own briefing that Brown’s declaration is based
on her review of defendant’s loan file, and that paragraph
7 sets forth her testimony “that those records reflect that
[plaintiff] held the Note at the time the foreclosure action
was initiated and continued to hold the Note.” (Emphasis
added.) Thus, paragraph 7 represents Brown’s account of
what Wells Fargo’s records say—that is hearsay.4 See OEC
801(3).
4 Plaintiff does not dispute that the contents of paragraph 7 were
offered to
prove the truth of the matter that they assert. See OEC 801(3).
534 U.S. Bank National Assn. v. McCoy
Our conclusion that paragraph 7 of the declaration
contains hearsay does not end our inquiry. As noted, plaintiff
argues that, if the assertions of that paragraph are hearsay,
those statements are nonetheless admissible because they
are business records. The business records exception to the
hearsay rule allows the admission of
“[a] memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmitted
by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown
by the testimony of the custodian or other qualified witness,
unless the source of information or the method [or] circumstances
of preparation indicate lack of trustworthiness.”
OEC 803(6) (emphasis added). Thus, for a business record
to be admissible under that exception, the party proffering
that evidence must show that the record was (1) made at or
near the time of the event or matter being memorialized;
(2) by or from information transmitted by a person with
knowledge and a duty to report; (3) pursuant to a regular
activity of the business; and (4) kept in the course of a regularly
conducted business activity. See Laird C. Kirkpatrick,
Oregon Evidence § 803.06[3][a], 809 (6th ed 2013) (summarizing
the foundational requirements of the rule).
Plaintiff argues that Brown’s declaration establishes
those predicates for the Wells Fargo records and that
they therefore qualify as business records. Plaintiff further
argues that Brown’s testimony based on her review of those
records similarly qualifies as an admissible business record.
Defendant does not dispute that the Wells Fargo records
themselves satisfy OEC 803(6), but contends that Brown’s
testimony about their contents is not a business record. We
agree with defendant.
In essence, defendant argues that, although plaintiff
may have laid a sufficient foundation to introduce various
bank documents as business records under ORS 803(6),
its failure to introduce the records themselves renders that
effort moot, at least insofar as paragraph 7 of Brown’s
Cite as 290 Or App 525 (2018) 535
declaration is concerned.5 Defendant is correct. OEC 803(6)
authorizes the introduction of a qualified “memorandum,
report, record, or data compilation in any form,” but no part
of that rule purports to render testimony about those things
admissible over a hearsay objection. (Emphasis added.)
Moreover, the various considerations justifying a
hearsay exception for business records do not extend to testimony
regarding the contents of those records. In adopting
the business records exception, the legislature explained
that, generally, records kept as part of a regularly conducted
business activity are admissible, despite being
hearsay, because of their “unusual reliability.” Legislative
Commentary to OEC 803, reprinted in Kirkpatrick, Oregon
Evidence § 803.06[2] at 806. The source of that reliability
is “variously ascribed to the regular entries and systematic
checking which produce habits of precision, to actual
reliance of the business upon them, and to the duty of the
record keeper to make an accurate record.” Id.; see State v.
Cain, 260 Or App 626, 632, 320 P3d 600 (2014) (discussing
that rationale). Unlike the records actually accompanying
Brown’s declaration, none of those indicia of reliability
or trustworthiness extends to the freestanding testimony
found in paragraph 7.
Finally, we note that nothing in our case law supports
plaintiff’s assertion that the business records exception
permits a party to substitute testimony regarding the
contents of records for the records themselves. To the contrary,
our case law has consistently applied OEC 803(6) to
documents or comparable materials, not to testimony about
those materials. See, e.g., State v. Edmonds, 285 Or App 855,
861-64, 398 P3d 998 (2017) (holding that the transcript of a
victim interview satisfying the foundational requirements
of the exception was not inadmissible hearsay); Cain, 260
Or App at 634-36 (a computer-generated printout created
in the course of a fraud investigation qualified as a business
5 Brown attached various documents from defendant’s loan file to her
declaration.
Nothing in those documents “reflect[s] that [plaintiff] held the
Note at the
time the foreclosure action was initiated,” as plaintiff contends,
because nothing
in them indicates when plaintiff acquired possession. Whatever records
Brown
reviewed that led her to conclude that plaintiff possessed the note at
the time it
initiated the foreclosure action, those records are not attached to
her declaration.
536 U.S. Bank National Assn. v. McCoy
record). Thus, we conclude that paragraph 7 of the Brown
declaration was not admissible under OEC 803(6). And,
because plaintiff, the proponent of that evidence, has not
offered any other theory supporting its admission, we conclude
that the trial court erred in denying plaintiff’s motion
to strike that portion of plaintiff’s declaration.
As noted above, plaintiff argues, alternatively, that
there was ample other evidence in the record to establish
plaintiff’s standing to bring the foreclosure action. We disagree.
Having reviewed the record, we conclude that the
“[a]dditional [i]ndependent [s]upport” that plaintiff points
to either is not evidence (allegations of the complaint; arguments
in the summary judgment motion; assertions of
plaintiff’s counsel at the hearing); did not show possession
at the relevant time (the promissory note and its assignment;
assertions of counsel that plaintiff possessed the note
at the time of the summary judgment hearing); or both.
Accordingly, we reject plaintiff’s alternative argument along
with its first.
Without any evidence to establish its standing to
bring its foreclosure action, plaintiff was not entitled to
judgment as a matter of law. We therefore conclude that the
trial court erred in granting plaintiff’s motion for summary
judgment.
Reversed and remanded.

A159998 Opinion by DinSFLA on Scribd

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-20507

S. JAY WILLIAMS, individually and as assignee of WNC Institutional Tax
Credit Fund VII, L.P., WNC Housing, L.P., and Tracy Kennedy; SCII-GP,
L.L.C., as assignee of Shelter Resource Corporation, Swis Investments,
Limited, and SC-GP, Incorporated; SWIS INVESTMENTS, LIMITED; SWIS
COMMUNITY, LIMITED,
Plaintiffs–Appellants,

v.

WELLS FARGO BANK, N.A., doing business through its operating division
Wells Fargo Commercial Mortgage Servicing; FANNIE MAE, also known as
Federal National Mortgage Association; DAVID F. STAAS; MARK
GLANOWSKI; COURTNEY DAVIS BRISTOW; WINSTEAD, P.C.,
Defendants–Appellees.

16-20507-CV0 by DinSFLA on Scribd

Lexology-

On February 13, 2018, the Florida Supreme Court accepted jurisdiction in an appeal emanating from a hot button issue in contested foreclosures – can the borrower in a foreclosure secure an award of contractual attorney’s fees after successfully defending the foreclosure on the basis that the lender lacked standing to enforce the mortgage contract?

Florida law follows the American Rule on attorney’s fees, i.e. the loser does not pay the winner’s fees, unless there is a basis in contract or statute that provides for fee shifting. The avenue for a borrower to secure attorney’s fees in a unsuccessful foreclosure is most often the mortgage’s fee shifting provision.

However, where the borrower successfully defends the foreclosure on the grounds that the lender lacks standing to enforce the mortgage, Florida’s District Courts of Appeal presently hold that the borrower cannot access the fee shifting clause. As one opinion on the issue states, what is good for the goose is good for the gander. If the lender lacked the necessary privity to enforce the mortgage against the borrower, so too there must be insufficient privity for the borrower to enforce the mortgage (specifically its fee shifting provisions) against the lender.

[LEXOLOGY]

JAMES McCAMPBELL, Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellant.

Robert R. Edwards of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.

CASANUEVA, Judge.

In this appeal from a final judgment of foreclosure, James McCampbell contends that the trial court erred in admitting copies of his loan modification agreement, and Federal National Mortgage Association (Fannie Mae) correctly concedes that the admission of the copies was improper. Accordingly, we reverse.^[1]

On October 26, 2007, Mr. McCampbell signed the original mortgage and promissory note on the property, and on July 14, 2010, an agreement modifying the original loan and all of the original loan documents was executed. At trial, Fannie Mae called one witness to testify and that witness did not produce the original loan modification agreement nor did the witness explain its absence. Rather, Fannie Mae sought the admission of a copy of the agreement. Over objection, the trial court admitted the copy.

We hold that the trial court erred in admitting a copy of the document and remand for a new trial. Section 90.952, Florida Statutes (2012), provides as follows: “Except as otherwise provided by statute, an original writing . . . is required in order to prove the contents of the writing. . . .” In Rattigan v. Central Mortgage Co., 199 So. 3d 966, 967 (Fla. 4th DCA 2016), a similar failure resulted in a reversal of a foreclosure judgment. In that case, the bank, as here, was proceeding under a modified loan. The Fourth District noted:

When the terms of an agreement are necessary for resolution of an issue brought before a court, the failure to introduce the agreement itself into evidence violates the best evidence rule.

. . . .

This written modification was as much a part of the parties’ agreement as the original note itself. The Bank violated the best evidence rule by virtue of its failure to introduce the modification at trial (either the original or a duplicate with an explanation as to why the original note was unavailable, see Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So. 3d 58, 62 (Fla. 4th DCA 2012)). Id. (citing J.H. v. State, 480 So. 2d 680, 682 (Fla. 1st DCA 1985)). As a result, the admission of testimony regarding the content of the modification was error. Here, the identical failure to admit the modification agreement took place and resulted in the identical evidentiary error. See also Mathis v. Nationstar Mortg., LLC, 227 So. 3d 189, 193 (Fla. 2d DCA 2017) (holding that where bank’s witness did not provide any explanation regarding why the original allonge was not available, the “testimony regarding the contents of the allonge was inadmissible under the best evidence rule”).

We reverse and remand for a new trial. See Heller v. Bank of Am., NA, 209 So. 3d 641, 645 (Fla. 2d DCA 2017) (reversing and remanding final judgment of foreclosure for a new trial where trial court improperly allowed the bank’s witness to give hearsay testimony regarding content of business records which had not been admitted into evidence).

Reversed and remanded.

SALARIO and BADALAMENTI, JJ., Concur.

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

[1] We do not find merit in Fannie Mae’s argument that the appeal should be affirmed based on the tipsy coachman doctrine because, although the trial court took judicial notice of certain bankruptcy pleadings, no other pleading accompanied the judicial notice request.

Some of these homes still have their mortgages being held by banks and other lending institutions

WKBN-

You might have heard the term “zombie home” before. They are homes that are a big problem for Youngstown as blighted homes continue to plague the city’s neighborhoods.

Some of these homes still have their mortgages being held by banks and other lending institutions.

There are plenty of stories of those worried about living next to blight. From drug activity to vagrants to fires that break out inside the abandoned properties.

[WKBN]

EVERY SUNDAY
3:00 PM HAWAII 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

image: thetechsafehome.com

Zachowski Wells Fargo Affidavit by DinSFLA on Scribd

FOR IMMEDIATE RELEASE:

Contact: James Hallinan
(505) 660-2216
February 21, 2018

Attorney General Balderas Issues Cease & Desist
Notice to Company for Illegal Mortgage Practices

Albuquerque, NM – Today, Attorney General Hector Balderas announced that the Office of the
Attorney General’s Consumer and Environmental Protection Division issued a Notice to Cease
and Desist to Capital Home Advocacy Center and National Advocacy Group. Based on a
complaint received from a New Mexico consumer, Capital Home Advocacy, formerly known as
National Advocacy Group, charges advance fees for home mortgage modification services. New
Mexico has banned advance fees for mortgage modification services through the Mortgage
Foreclosure Consultant Fraud Prevention Act, passed in 2010. The Mortgage Foreclosure
Consultant Fraud Prevention Act prohibits demand or payment of fees until the services have
been completed.
“Preying on New Mexico families struggling to keep their homes is disgusting and it’s against
the law,” said Attorney General Hector Balderas. “Companies who harm our families will be
held accountable to the fullest extent of the law by the Office of the Attorney General.”
Homeowners should not pay for mortgage modification help. Attorney General Balderas advises
consumers to seek mortgage modification services only from HUD-approved housing counseling
agencies which provide such help free of charge. Call HUD at 1-800-569-4287 for assistance and
referral. If you have questions, contact the Attorney General’s Homeownership Preservation
Program, Keep Your Home New Mexico, at 1-800-220-0350.

Please see attached for a copy of the Cease and Desist Order link below.

via DylanRatigan.com–

Recap of Dylan’s best videos below:

The media does not report names of banks listed, here it is:

COMPLAINT against BARCLAYS BANK PLC, BBA Enterprises Ltd., BBA TRENT LTD. (F.K.A. BBA LIBOR LTD.), Bank of America, N.A., Bank of Scotland PLC, British Bankers Association, COPERATIEVE RABOBANK UA (F.K.A. COPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK, B.A.), Citibank, N.A., Credit Suisse AG, Credit Suisse International, Deutsche Bank AG, HSBC Bank PLC, JPMorgan Chase Bank, N.A., Lloyds Bank PLC (formerly known as Lloyds TSB Bank PLC), Lloyds Banking Group PLC, PORTIGON AG (F.K.A. WESTLB), Royal Bank of Canada, Societe Generale, The Bank of Tokyo-Mitsubishi UFJ Ltd., The Norinchukin Bank, The Royal Bank of Scotland PLC, UBS AG.

Reuters-

A U.S. regulator on Tuesday filed a lawsuit against 16 U.S. and international banks alleging they had manipulated bbaLIBOR, which is a series of interest-rate benchmarks, leading to the collapse of Puerto Rico’s Doral Bank.

The Federal Deposit Insurance Corp (FDIC), which brought the suit in its capacity as receiver for Doral Bank, alleged that the rate rigging harmed Doral by causing substantial losses with regard to its loan portfolio and derivative holdings.

The suit is the latest in a long line of lawsuits in the U.S. District Court in Manhattan targeting the alleged rigging by banks of one interest rate benchmark, market or commodity or another.

[REUTERS]

• Wells Fargo has made missteps in its efforts to make amends to customers who were forced to buy unneeded auto insurance.
• 38,000 customers received a letter they did not need and that contained no refund.
• The error was due to a coding mistake caught by the vendor responsible for the communications.

CNBC-

Wells Fargo has made missteps in its efforts to make amends to customers who were forced to buy unneeded auto insurance.

Bank spokeswoman Catherine Pulley said 38,000 customers received a letter they did not need and that contained no refund. She said the error was due to a coding mistake caught by the vendor responsible for the communications.

“We will work with our vendor to ensure these customers receive the appropriate communication — including any refunds they’re eligible for,” Pulley said.

[CNBC]

Lexology-

Reversing the rulings of both the appellate and the trial courts, the Supreme Court of the State of Illinois recently held that the deadline to file a motion to quash service under the Illinois Mortgage Foreclosure Law (IMFL) did not run while the foreclosure action was dismissed for want of prosecution.

A copy of the opinion is available at:  Link to Opinion.

The plaintiff mortgagee filed a residential mortgage foreclosure complaint against, among others, the borrower and a limited liability company. The mortgagee filed an affidavit of service by publication indicating that, after a due diligence search, it was unable to locate or serve the company.  Thereafter, the company was served by publication.

[LEXOLOGY]

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

OPINION

JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 The issue we must decide is whether Pacific Realty Group, LLC, timely filed its motion to quash service. We hold that it did.

¶ 2 BACKGROUND

¶ 3 On June 11, 2010, in its capacity as the trustee for certain certificate holders of an alternative loan trust, the Bank of New York Mellon (the Bank) filed a residential mortgage foreclosure complaint against Mark Laskowski, Pacific Realty Group, LLC (Pacific), and others in Will County circuit court. In July 2010, the Bank filed an affidavit for service by publication stating that, after a due diligence search, it was unable to locate or serve Pacific. The Bank’s search included both directory assistance records and the Illinois Secretary of State’s business registration records. After service by publication was made, Pacific failed to appear or otherwise respond to the complaint. In July 2012, the trial court entered an order of default and a judgment of foreclosure. In the judgment, the trial court made a specific finding that service of process was properly made as to Pacific. In February 2013, the subject property was sold at a sheriff’s sale.

¶ 4 In April 2013, the Bank filed a motion requesting an order approving the report of the sale of the property and the proposed distribution of the proceeds, as well as an order of possession. The motion was noticed up for April 18, 2013, and on that date Pacific’s attorney showed up for the first time and filed an appearance. However, because the Bank failed to appear, the trial court on its own motion dismissed the Bank’s case for want of prosecution (DWP). Shortly thereafter, the Bank moved to vacate the DWP. On May 30, 2013, the trial court granted the Bank’s motion and reinstated the case.

¶ 5 On July 18, 2013, Pacific filed a motion to quash service of process. The motion alleged that Pacific is a foreign LLC registered in New Mexico and that it does not have a registered agent in Illinois. According to Pacific, this means that service by publication was improper because section 1-50 of the Limited Liability Company Act (805 ILCS 180/1-50 (West 2010)) does not allow an unregistered foreign LLC to be served in that manner. In May 2014, the trial court denied Pacific’s motion. In doing so, the trial court first found that the motion was untimely because it was filed more than 60 days after Pacific filed its appearance in the case. See 735 ILCS 5/15-1505.6(a) (West 2012). The trial court also denied the motion on the merits, holding that service by publication was proper. The trial court subsequently entered an order approving the report of the sheriff’s sale and the proposed distribution of the proceeds.

¶ 6 Pacific appealed, and a divided appellate court affirmed the trial court’s decision denying Pacific’s motion. 2017 IL App (3d) 140566. On appeal, Pacific argued both that its motion to quash service was timely and that it should have been granted on the merits. The appellate court majority began with the timeliness question, citing section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1505.6(a) (West 2012)). In relevant part, that section states that, “unless extended by the court for good cause shown,” the deadline for filing a motion to quash service in a residential foreclosure case is “60 days after *** the date that the moving party filed an appearance.” Id. § 15-1505.6(a)(i). The majority explained that, although Pacific filed its appearance on April 18, 2013, it did not file its motion to quash service until July 18, 2013, which was nearly 90 days later. 2017 IL App (3d) 140566, ¶ 16. As importantly, Pacific did not seek or obtain an extension of the 60-day deadline “for good cause,” as section 15-1505.6(a) allows. Id. Consequently, the majority held, Pacific’s motion to quash was clearly untimely, and the trial court was correct to deny it as such. Id. As a final matter, the majority stated that, because it affirmed the trial court’s finding that Pacific’s motion was untimely, it “need not address *** whether the service by publication on Pacific in this case was proper.” Id. ¶ 17.

¶ 7 Justice Holdridge dissented. His position was that, under the principles announced by this court in Case v. Galesburg Cottage Hospital, 227 Ill. 2d 207 (2007), “the 60-day deadline for contesting service could not have applied” while the case was DWP. 2017 IL App (3d) 140566, ¶ 23 (Holdridge, J., dissenting). Rather, that deadline began to run only when the case was reinstated, which occurred on May 30, 2013. Id. Pacific’s motion to quash therefore was timely, as it was filed 49 days later, on July 18, 2013. Id.

¶ 8 We granted Pacific’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Mar. 15, 2016)).

¶ 9 DISCUSSION

¶ 10 In this court, Pacific raises the same two arguments that it raised in the appellate court below. First, Pacific argues that its motion to quash service was timely. Second, Pacific argues that its motion to quash service should have been granted because service by publication was improper in this case. We will begin with the timeliness question.

¶ 11 Timeliness

¶ 12 Pacific’s timeliness argument raises a question of statutory interpretation, and the principles governing such inquiries are familiar and well settled. The cardinal rule of statutory construction is to ascertain and give effect to the legislature’s intent. People v. Johnson, 2017 IL 120310, ¶ 15. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Id. That said, a court also will presume that the legislature did not intend absurd, inconvenient, or unjust results. Id. Consequently, where a plain or literal reading of a statute renders such results, the literal reading should yield. Id. The construction of a statute is a question of law that we review de novo. Id.

¶ 13 The statute at issue is section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-1505.6(a) (West 2012)). In relevant part, that section provides that:

“In any residential foreclosure action, the deadline for filing a motion to *** quash service of process *** unless extended by the court for good cause shown, is 60 days after the earlier of these events: (i) the date that the moving party filed an appearance; or (ii) the date that the moving party participated in a hearing without filing an appearance.” Id.

Here, it is undisputed that Pacific filed its motion to quash service on July 18, 2013, which was approximately 90 days after it filed its appearance. The question for us is whether the 60-day statutory clock continued to run while the Bank’s case was DWP. Pacific insists that it did not because, as long as the case was DWP, there was neither reason nor opportunity for Pacific to file a motion to quash service. In support, and like the dissent below, Pacific relies principally upon this court’s decision in Case. The Bank, by contrast, argues that section 15-1505.6(a) is “clear and unambiguous” in stating that, unless extended by the court for good cause, the deadline for filing a motion to quash service in a residential foreclosure action is 60 days after the moving party files its appearance. Here, the court did not extend the 60-day deadline, and Pacific filed its motion approximately 90 days after filing its appearance. Thus, the Bank argues, there is no question that Pacific’s motion was untimely, and this court does not have to look any further than the plain language of the statute to reach this obvious conclusion.

¶ 14 For two reasons, we agree with Pacific. To begin with, the plain language of section 15-1505.6(a) supports the conclusion that the 60-day clock is tolled while the underlying case is DWP. In relevant part, section 15-1505.6(a) states that, “[i]n any residential foreclosure action,” the deadline for filing a motion to quash service of process is 60 days after the moving party files its appearance. Id. The key phrase here is “[i]n any residential foreclosure action,” because that phrase expressly defines the setting in which the passage of time will be measured. Needless to say, 60 days cannot pass in a residential foreclosure action if no such action is pending. Nor can a party comply with the statutory filing deadline in the absence of an active case, even if it wanted to. Thus, to suggest that Pacific was still on the clock even when the Bank’s case was DWP is to suggest the impossible, both conceptually and practically. The legislature’s use of the phrase “[i]n any residential foreclosure action” clearly reflects this reality, and we therefore reject the Bank’s contention that the 60-day deadline was unaffected by the dismissal of the Bank’s case.

¶ 15 As Pacific correctly points out, this conclusion finds solid support in our decision in Case. In Case, the plaintiffs filed a negligence complaint on April 25, 2003. Case, 227 Ill. 2d at 209. A month later, on May 20, 2003, the plaintiffs voluntarily dismissed that complaint pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 2006)). Case, 227 Ill. 2d at 210. Almost one year later, on April 12, 2004, the plaintiffs refiled their complaint pursuant to section 13-217 of the Code (735 ILCS 5/13-217 (West 2006)). Case,227 Ill. 2d at 210. Section 13-217 provides that, where a plaintiff voluntarily dismisses a timely filed complaint, that plaintiff has either one year or the remaining limitations period, whichever is greater, to refile the action. By April 26, 2004, the plaintiffs had obtained service of process on all of the defendants. Id.The defendants later filed a motion to dismiss under Illinois Supreme Court Rule 103(b) (eff. July 1, 1997), arguing that the plaintiffs had failed to exercise reasonable diligence in obtaining service of process. Case, 227 Ill. 2d at 211. After a hearing, the trial court held that the plaintiffs had violated Rule 103(b), in that it took the plaintiffs almost one year after the initial filing to obtain service on the defendants, despite the fact the defendants were all local health care providers with readily ascertained locations. Id. Accordingly, the trial court dismissed the plaintiffs’ case with prejudice. Id.

¶ 16 In reversing the trial court’s decision, this court explained that “the pendency of an action that a defendant argues is delayed is central to any determination of whether a passage of time should be considered for purposes of Rule 103(b).” Id.at 217. Further, the court explained that

“[t]he requirement of a pending action against which to measure diligence is rooted in simple logic. If an action is dismissed, and not pending, there is no reason to serve a defendant with process. As such, there is nothing to delay, and nothing to be diligent about.” Id.

Accordingly, the court concluded by holding that “the time that elapses between the dismissal of a plaintiff’s complaint and its refiling pursuant to section 13-217 is not to be considered by a court when ruling on a motion to dismiss for violation of Rule 103(b).” Id. at 222.

¶ 17 The same logic that controlled Case controls here. Again, before 60 days can pass “[i]n any residential foreclosure action,” such an action necessarily must be pending. And unless such an action is pending, there is neither cause nor occasion to file a motion contesting the plaintiff’s service of process. Accordingly, we hold that the time that elapses between the DWP of a residential mortgage foreclosure action and its subsequent reinstatement is not to be counted in determining whether a motion to quash service is timely under section 15-1505.6(a).

¶ 18 Our second reason for agreeing with Pacific is rooted in the principle that, in construing the language of a statute, courts will presume that the legislature did not intend absurd, inconvenient, or unjust results. Pacific’s reading of section 15-1505.6(a) yields no such results. On the contrary, Pacific’s reading yields an entirely sensible and workable result, by which the statutory time period for filing a motion to quash service in a residential foreclosure action runs as long as the case is pending and ceases to run as long as the case is not pending. By contrast, the Bank’s reading of section 15-1505.6(a) yields results that are at once absurd, inconvenient, and unjust. The absurdity lies in the prospect of section 15-1505.6(a)’s 60-day filing period not only running but also expiring while the underlying case is DWP, which is what would have happened here had the order vacating the DWP come just two weeks later than it did. The inconvenience comes in mandating the noticing up and filing of a motion to quash service in a case that’s been dismissed, a procedural maneuver so unprecedented that the Bank’s own counsel concedes “there’s no way to definitively know” how it could be done. Finally, the injustice would come in holding that a residential foreclosure defendant is bound by a statutory filing deadline with which it is legally impossible to comply, which is exactly what we would be saying if we endorsed the Bank’s reading of section 15-1505.6(a) and held that the 60-day clock continues to run even while the action is dismissed. For all of these reasons, we emphatically reject the Bank’s reading of section 15-1505.6(a) in favor of that advocated by Pacific and compelled by the clear statutory language, given its plain and ordinary meaning.

¶ 19 The only question that remains on this point is whether Pacific’s motion to quash service was in fact timely. We hold that it was. Again, section 15-1505.6(a) provides that, in any residential foreclosure action, the deadline for filing a motion to quash service of process is “60 days after *** the date that the moving party filed an appearance.” 735 ILCS 5/15-1505.6(a)(i) (West 2012). And under our holding above, the time that elapses between the DWP of a residential mortgage foreclosure action and its subsequent reinstatement is not to be counted in calculating the statutory deadline. Here, Pacific filed its appearance on April 18, 2013, which was the same date that the trial court dismissed the Bank’s case for want of prosecution. This means that, once the DWP was vacated and the Bank’s case reinstated, Pacific had 60 days to file its motion to quash service. The trial court’s order vacating the DWP and reinstating the Bank’s case was entered on May 30, 2013, and Pacific filed its motion 49 days later, on July 18, 2013. This was well within the statutory deadline, and we therefore hold that Pacific’s motion to quash service was timely.

¶ 20 Service by Publication

¶ 21 Pacific’s other argument is that the trial court should have granted its motion to quash service because service by publication was legally improper in this case. As discussed above, because it agreed with the trial court’s conclusion that Pacific’s motion to quash service was untimely, the appellate court below did not reach the question of whether service by publication was proper. We therefore remand this case to the appellate court for the consideration of that question in the first instance.

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we reverse the appellate court’s judgment affirming the trial court’s decision finding that Pacific’s motion to quash service was untimely, and we remand this cause to the appellate court for consideration of whether service by publication was proper in this case.

¶ 24 Appellate court judgment reversed.

¶ 25 Cause remanded.

NYT-

Any one of the sins that Wells Fargo committed against consumers would have been bad enough.

There was the unnecessary auto insurance it forced auto loan borrowers to buy. And the data breach where scores of the bank’s wealthiest clients woke up to the news that a lawyer for the company had handed over their personal information to an adversary. Plus accusations of unauthorized changes to people’s mortgages. And those fake accounts — numbering in seven figures — that employees created in customers’ names.

Taken together, they ought to give pause to any person who does business with Wells. But if you think it will be easy to, say, get out of your mortgage relationship, you will find yourself extremely frustrated.

[NEW YORK TIMES]

EVERY SUNDAY
3:00 PM HAWAII 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

image: thetechsafehome.com

MARITSA DEJESUS, Appellant,
v.
A.M.J.R.K. CORP. and ALTAGRACIA GUILLEN, Appellees.

John A. Anthony and John W. Landkammer of Anthony & Partners, LLC, Tampa, for Appellant.

Pedro W. Rodriguez of Pedro W. Rodriguez, P.A., Tampa, for Appellee, A.M.J.R.K. Corp.

Curran K. Porto, Tampa, for Appellee, Altagracia Guillen.

SLEET, Judge.

Maritsa DeJesus challenges the trial court’s Order on Proceedings Supplementary, in which the court determined that property against which she holds a lien is entitled to homestead protection against forced sale. Because the property is owned by a corporation and because Altagracia Guillen, the natural person residing there, possesses no ownership interest in the property, we reverse.

The property in question is owned by A.M.J.R.K. Corp., of which Guillen is the president and sole shareholder. In 2012, DeJesus suffered injuries on the property and sued A.M.J.R.K. for damages. At that time, Guillen did not reside on the property. In 2014, while the litigation was still pending, a quitclaim deed was prepared, signed, and recorded attempting to transfer the property from A.M.J.R.K. to Guillen. However, the deed lacked consideration, a corporate seal, and evidence of proper corporate capacity or authority for the signatures, and the acknowledgment clause signed by the notary was for an individual, not a corporation. Subsequently, in 2015, Guillen started to reside on the property with her children. On December 8, 2015, the trial court entered final judgment in DeJesus’s favor in her suit against A.M.J.R.K. and awarded her $390,649.64 in damages.

In an effort to collect on her judgment, on January 11, 2016, DeJesus, as the judgment creditor, filed a supplementary complaint alleging that A.M.J.R.K. had attempted to transfer the property to prevent a forced sale of the asset. The supplementary complaint further alleged that the first quitclaim deed was defective and that the transfer from A.M.J.R.K. to Guillen was thus not effective. DeJesus sought a constructive trust on the property and injunctive relief preventing A.M.J.R.K. from transferring the asset. Finally, DeJesus sought to implead Guillen. While the supplementary proceeding was pending, a second quitclaim deed purporting to transfer the property from A.M.J.R.K. to Guillen was recorded, but it suffered from some of the same defects as the first deed. On March 5, 2016, the trial court entered an order impleading Guillen as a third-party defendant in the case. The trial court subsequently entered a temporary injunction preventing the transfer of the property.

Following a hearing, the trial court entered its Order on Proceedings Supplementary, in which it ruled (1) that both quitclaim deeds were defective and that neither attempted transfer from A.M.J.R.K. to Guillen was effective; (2) that despite the ineffective transfers, homestead attached to the property when Guillen began residing there in 2015; (3) that since the property did not receive homestead status until after DeJesus filed her action against A.M.J.R.K., DeJesus was entitled to a lien on the property; and (4) that despite DeJesus’ lien on the property, due to its homestead status, the property was protected from forced sale or transfer to DeJesus.

On appeal, DeJesus argues that the trial court erred in determining that a corporation like A.M.J.R.K. could hold a homestead exemption on real property. We agree. Article X, section 4(a), of the Florida Constitution, entitled “Homestead; exemptions,” provides as follows: “There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, . . . property owned by a natural person.” (Emphasis added.) As such, the plain language of the Florida Constitution requires that the owner of the property be a natural person to claim the homestead exemption. Here, neither attempt to transfer the property to Guillen was successful, and the property continued to be owned by A.M.J.R.K., a corporation.

Nevertheless, the trial court determined that homestead attached to the property because Guillen—a natural person—resides there. In doing so, the court cited Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2003), as support for its conclusion that “Florida law does not require that a person be the owner of a homestead property to be protected by the Florida constitution.” The trial court, however, misreads the holding in Callava.

In that case the judgment creditor sought a lien on a home purchased by Callava, the judgment debtor. However, the actual purchase of the home was made in the name of “Jorge Gaviria, as Trustee,” and Callava was a beneficiary of the trust. Id. at 431. The trial court there imposed the lien, and the judgment creditor sought to foreclose on it. Callava argued that the property was her homestead, but the trial court entered the foreclosure judgment against her. On appeal, the Third District reversed, concluding as follows:

The constitutional provision “does not designate how title to the property is to be held and it does not limit the estate that must be owned. . . .” Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 569 (Fla. 5th DCA 2002). “[T]he individual claiming homestead exemption need not hold fee simple title to the property.” Id. (citing Bessemer Props., Inc. v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946)). See also HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774, 776 (Fla. 1st DCA 1991) (beneficiary of spendthrift trust entitled to claim homestead exemption as to trust property). Thus, even if Callava owns only a beneficial interest in the property, she is entitled to claim a homestead exemption to the forced sale of the property and the trial court erred in foreclosing her interest in the property.

Id. (alteration in original) (emphasis added).

Thus, Callava does not hold that a person need not own property to claim homestead protection. Callava merely holds that one’s ownership interest in the property need not be fee simple title in order to obtain the homestead exemption from the forced sale of the property to satisfy a judgment lien. While the judgment debtor in Callava had some ownership interest in the property—as a beneficiary of the trust that owned it—in the instant case Guillen has no ownership interest, either legal or equitable, in the property at issue. See In re Alexander, 346 B.R. 546, 547 (Bankr. M.D. Fla. 2006) (“To qualify for Florida’s homestead exemption, an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode.”).

We also note that although Guillen is the president and sole shareholder of A.M.J.R.K., such status did not give her an interest in the corporation’s property. See Mease v. Warm Mineral Springs, Inc., 128 So. 2d 174, 179 (Fla. 2d DCA 1961) (“The stockholders do not have vested in them title in the corporate property.”); see also Hackney v. Niedecken, 133 So. 3d 1228, 1230 (Fla. 2d DCA 2014) (holding that status as a corporate stockholder did not entitle that stockholder to payment made on corporation’s property). Accordingly, we must reverse the trial court’s order and remand for further proceedings consistent with this opinion.

Reversed and remanded.

SILBERMAN and BADALAMENTI, JJ., Concur.

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

Freep-

If you’re anything like me, you feel a little sick when you hear that yet another 36,000 Detroit properties are facing tax foreclosure this year. Tax foreclosure is an autoimmune disorder through which our own local government has become the agent of its own destruction. The city, county and state all have a role in carrying out tax foreclosure, but they also have the ability to end it. Government can stop government foreclosure.

Prevent the loss

The first priority must be to preserve homeownership. The most obvious solution for retaining homeowners is to use the federal funds already allocated for foreclosure prevention to actually prevent foreclosure, at no cost to local government.

Each year, the Michigan State Housing Development Authority, (MSHDA) “Step Forward” program denies assistance to hundreds of applicants who ultimately lose their homes to tax foreclosure. Meanwhile, the funds go unused. MSHDA requirements are too judgmental, stringent and unreasonable for worthy homeowners to qualify, and the application period is too short. Local government could work with MSHDA to better utilize its foreclosure prevention money for Detroit homeowners, and to increase this funding by returning demolition funds for their original purpose.

[FREEP]

Palm Beach Post-

David Silva didn’t believe he deserved the $25 late fee when his condo switched property managers and his $282 maintenance check for June 2015 wasn’t deposited. He still doesn’t.

He paid the maintenance bill when he found out that August it was overdue. But by this year, the late fee and the ones that came after it, which he wouldn’t pay, had metastasized into $50,000 of additional late fees, interest and attorney charges for a two-day trial. A county judge’s Feb. 5 ruling puts the retired New York state trooper in jeopardy of losing his $340,000 townhome to the Ventura Greens at Emerald Dunes Condominium Association through foreclosure, if he doesn’t pay in full.

Law-

A Broward lawyer whose clients lost their bid for attorney fees suggested judges were sending a message to him and other foreclosure defense lawyers: They may prevail in the courtroom, but lose when it comes to recouping expenses for borrowers who defaulted on mortgages.

Outspoken foreclosure defense attorney Roy Oppenheim said a court decision last week indicates lawyers representing homeowners against lenders will likely not get paid for their work, if they can’t recover attorney fees from plaintiffs who bring failed lawsuits. But he said it will likely spawn new litigation as successful defendants accuse financial institutions of common law and statutory torts.

“If the courts think that’s how they’re going to shut down the Roy Oppenheims of the world, they’re mistaken,” said Oppenheim, co-founder and senior partner at Weston-based Oppenheim Law. “They’ve emboldened us.”

[LAW.COM]

MarketWatch-

Wells Fargo investors have learned a lot about the bank’s worsening issues recently, but they should be watching carefully over the next couple of weeks for possibly more bad news — from the bank’s auditors, KPMG.

KPMG must opine on Wells Fargo’s WFC, -0.03% internal controls by around March 1, and investors might not like the answer: the very real possibility of an adverse opinion from the auditors identifying material weaknesses in the bank’s controls.

On Feb. 2, the Federal Reserve Board released a consent cease-and-desist order that requires the bank to improve its governance and risk-management processes, including strengthening the effectiveness of oversight by its board of directors. The Federal Reserve Board stated that the “firm did not have an effective firm-wide risk management framework in place that covered all key risks.”

[MARKETWATCH]