April, 2018 | FORECLOSURE FRAUD | by DinSFLA

Archive | April, 2018

Bank of Internet, Which Had Been Under Federal Investigation, Appears In Multiple Kushner Deals

Bank of Internet, Which Had Been Under Federal Investigation, Appears In Multiple Kushner Deals

by Justin Elliott

A bank that had been under federal investigation until last year has played a role in two recent real estate transactions involving Kushner Companies, Jared Kushner’s family company.

Earlier this month, BofI Federal took over a mortgage previously owned by the Kushner Companies for a development in Brooklyn, New York City real estate filingsshow. The previously unreported transaction involves a loan on a development project in the historically industrial, now gentrifying Bushwick neighborhood. Kushner Companies had made a loan of roughly $30 million to the project at 215 Moore Street in late 2016. Jared Kushner remains a senior adviser to President Donald Trump.

BofI, which was previously known as Bank of Internet USA, said in a statement to ProPublica that it “has no exposure or relationship with Mr. Kushner or his company with respect to 215 Moore St.” The bank likened the transaction to a routine refinancing.

In another transaction last October, the Kushner Companies got a $57 million loan on one of its own projects in New Jersey. BofI Federal provided much of the money behind that loan, Bloomberg reported last week.

BofI Federal Bank faced a Securities and Exchange Commission investigation into its lending practices and conflict of interest policies until last year. After multiple subpoenas in 2016, the SEC closed the investigation in late June 2017.

Kushner stepped away from the management of his family real estate company to join the Trump White House but held onto many of his family company’s assets, including the Bushwick project debt. Ethics experts have criticized the arrangement, saying it could create conflicts of interest if Kushner Companies business partners have business before the government.

Based in San Diego, the publicly traded BofI Federal does most of its real estate lending in California, and has only a small presence in the New York market. It has attracted attention from short-selling investors, who question the bank’s business model and practices. The company has said the investors have purveyed misleading information.

In November 2016, shortly after the presidential election, Kushner Companies announced it was pursuing a new line of business in lending money to other developers’ projects.

That month, the company made a loan of at least $33 million to a well-known New York developer, Toby Moskovits, for a project in Brooklyn. The developers have dubbed the project at 215 Moore Street and several adjacent lots the “Bushwick Generator.” The project is targeting what they describe as “the job-generating tech and creative firms that are repowering Brooklyn’s economy.” On a recent visit, the project was still under construction. Most of the rundown former industrial building was still open to the sky, except for a central open-plan office area where a vintage Singer sewing machine table acts as a front desk.

In a transaction inked in early April, the Kushner Companies debt was transferred to BofI, which is now the lender on the project, real estate filings show. Public records don’t reveal the terms of the BofI transaction and whether Kushner Companies made money or otherwise benefitted.

In a statement, BofI said that it had no relationship with Kushner regarding the Bushwick property. The bank said the owner of the Bushwick project was a pre-existing customer. BofI “decided, after carefully underwriting the transaction, to provide financing to one of our prior customers,” the bank said in a statement.

A Kushner Companies spokeswoman said that the owners of the project exited from the loan and “repaid the Kushner lending arm.” She declined to elaborate on the terms.

BofI also played a role in an earlier Kushner Companies transaction in Jersey City, New Jersey, across the Hudson River from Manhattan. Bloomberg reported that BofI provided much of the money for a $57 million October 2017 loan to the One Journal Square development.

The Jersey City loan was issued by Fortress Investment Group and BofI purchased an interest in the loan from Fortress. In its statement, BofI said the terms of that deal are confidential. “Banks routinely purchase participation interests in loans made by other institutional investors,” the statement said.

In the hunt for funding for the same Jersey City project, Kushner’s sister drew negative attention last year when she pitched Chinese investors using a controversial program that gives visas to foreigners who invest in the U.S.

The SEC investigation of BofI was closed without any action on June 27, 2017, several months before the first of the known Kushner transactions, according to documents obtained through public records requests by investment research outfit Probes Reporter.

As part of its investigation, the SEC subpoenaed documents from BofI relating to its internal controls, conflicts of interest policies, and residential loans to foreigners, among other matters.

The New York Post reported early last year that the Justice Department was also looking into issues at the bank related to possible money laundering. “We are not aware of any ongoing DOJ or Treasury investigation,” the company said in a statement.

The White House didn’t immediately respond to a request for comment.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter.

image by: Carolyn Kaster/AP

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TFH 4/29/18 | Foreclosure Workshop #57: LCP-Maui vs. Tucker — What Every Homeowner Facing Foreclosure Needs To Know About Deficiency Judgments

TFH 4/29/18 | Foreclosure Workshop #57: LCP-Maui vs. Tucker — What Every Homeowner Facing Foreclosure Needs To Know About Deficiency Judgments

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – April 29, 2018

.

 ———————
Foreclosure Workshop #57: LCP-Maui vs. Tucker — What Every Homeowner Facing Foreclosure Needs To Know About Deficiency Judgments

 

 

—————————-

In most States, as one of the most vicious aspects of the foreclosure system, if the auction sale price is not enough to pay off the balance of a loan, the lender or its collection agency assignee is entitled to a deficiency money judgment.

Deficiency collection can then consist of aggressively garnishing wages, seizing bank accounts, and foreclosing on a borrower’s other real property if any, forcing many borrowers into bankruptcy, further increasing the emotional trauma and financial loss due to being foreclosed on.

Some State Legislatures in response have enacted anti-deficiency statutes and some State Courts have established judicial limitations on deficiency judgments on their own, and individual borrowers therefore need to consult the deficiency laws in their own jurisdiction to see what their deficiency judgment exposure may be.

A good initial source of such information is the Treatise on Foreclosures published by the National Consumer Law Center, which is offering a 15% purchase discount to our listeners.

For details, listen to this Sunday’s live show and view the NCLC information shortly to be published on our website found at www.foreclosurehour.com.

On today’s live broadcast we address the Hawaii case of LCP-Maui vs. Tucker, representing a typical deficiency judgment outrage that unfortunately occurs weekly in most American jurisdictions, which urgently needs reform, illustrating once again the wisdom of Justice Oliver Wendell Holmes who once remarked, equally relevant today, that it is no justification to have no better reason for a rule of law than that it was laid down in the time of Henry IV.

Hawaii has since Territorial days calculated deficiency judgments using the common law judge-made majority approach of merely subtracting the net auction sale proceeds from the loan balance, regardless of the true value of the property at time of sale confirmation, ignoring the fact that a forced foreclosure auction sale rarely if ever yields the fair market value of the real property being foreclosed on.

Today John Waihee and I will explore why that mechanical approach is not only highly unfair and contrary to the contractual obligation of good faith and fair dealing, but as a brazen forfeiture of homeowner equity it is also arguably in violation of Due Process of Law, for as U.S. Supreme Court Justice Douglas said in Gelfert v. National City Bank of New York, 313 U.S. 221, 233 (1941): “Mortgagees are constitutionally entitled to no more than payment in full”.

The Tucker case is now before the Hawaii Supreme Court on Application for a Writ of Certiorari, and the contents of the Application will be discussed on this Sunday’s show and posted along with the audio of this live broadcast in the past broadcast section of our website as soon the audio becomes available, usually within hours of our broadcasts.

The outcome of Tucker’s Application could have enormous positive consequences for homeowners not only in Hawaii but as persuasive authority throughout the United States, not only reducing or eliminating deficiency judgments altogether in many if not most foreclosure situations, but also saving hundreds of millions of dollars in homeowner equity otherwise mindlessly and unfairly and unconstitutionally lost through forced foreclosure sales.

Gary

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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GUY v PLAZA HOME MORTGAGE, INC. | FL 2nd DCA – Court Chides Broward Clerk’s Brenda Forman Office for Backdating Foreclosure Judgments

GUY v PLAZA HOME MORTGAGE, INC. | FL 2nd DCA – Court Chides Broward Clerk’s Brenda Forman Office for Backdating Foreclosure Judgments

DBR-

The Fourth District Court of Appeal released a two-page opinion to “disapprove of a practice in the Broward County Clerk’s office.”

The ruling came Wednesday after a pro se defendant, Kenneth Carl Guy, pointed out that the clerk filed documents showing a ruling against him five hours before the judge actually entered the order.

The issue affects the appellate window for parties to challenge a ruling because the clock starts running once the clerk’s office receives the file.

Broward litigants have complained to the Daily Business Review for more than three years alleging fraud in handling of docket entries in the office of Clerk of Court Brenda Forman, who was elected in November 2016 to succeed her husband Howard Forman.

[DAILY BUSINESS REVIEW]

173335_1711_04252018_09462576_i by DinSFLA on Scribd

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U.S. BANK NATIONAL ASSOCIATION v. MATHEW | NY SC – Young Law Group, PLLC Beats NY Mortgage Statute of Limitations, Again, This Time For Queens Family!

U.S. BANK NATIONAL ASSOCIATION v. MATHEW | NY SC – Young Law Group, PLLC Beats NY Mortgage Statute of Limitations, Again, This Time For Queens Family!

Mathew (241-14)- 2017- mot 001- 20180413 SOL Dismissal by DinSFLA on Scribd

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Mulvaney, Watchdog Bureau’s Leader, Advises Bankers on Ways to Curtail Agency

Mulvaney, Watchdog Bureau’s Leader, Advises Bankers on Ways to Curtail Agency

NYT-

Mick Mulvaney, the interim director of the Consumer Financial Protection Bureau, told banking industry executives on Tuesday that they should press lawmakers hard to pursue their agenda, and revealed that, as a congressman, he would meet only with lobbyists if they had contributed to his campaign.

“We had a hierarchy in my office in Congress,” Mr. Mulvaney, a former Republican lawmaker from South Carolina, told 1,300 bankers and lending industry officials at an American Bankers Association conference in Washington. “If you’re a lobbyist who never gave us money, I didn’t talk to you. If you’re a lobbyist who gave us money, I might talk to you.”

At the top of the hierarchy, he added, were his constituents. “If you came from back home and sat in my lobby, I talked to you without exception, regardless of the financial contributions,” said Mr. Mulvaney, who received nearly $63,000 from payday lenders for his congressional campaigns.

[NEW YORK TIMES]

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Consumer Bureau Looks to End Public View of Complaints Database

Consumer Bureau Looks to End Public View of Complaints Database

NYT-

Financial companies have worked to diminish the Consumer Financial Protection Bureau’s powers since the day the agency was created. Now, they’re on the brink of having one of their top demands granted: an end to the regulator’s public database of complaints about their products and services.

Since 2011, the bureau has maintained an open, searchable record of more than one million consumer reports about inaccurate debt collections, illegal fees, improper overdraft charges, mistakes on loans and other problems. By law, the consumer bureau has to collect those complaints. But it is not legally required to share them online.

Mick Mulvaney, the bureau’s acting director, hinted Tuesday that he would like to end that public access.

“I don’t see anything in here that says I have to run a Yelp for financial services sponsored by the federal government,” he said at a banking industry conference in Washington. “I don’t see anything in here that says that I have to make all of those public.”

[NEW YORK TIMES]

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Bayview Loan Servicing, LLC v. Pierce | HAWAII ICA – general issue of material fact as to whether Bank of New York had standing at the time of this foreclosure action was commenced

Bayview Loan Servicing, LLC v. Pierce | HAWAII ICA – general issue of material fact as to whether Bank of New York had standing at the time of this foreclosure action was commenced

CAAP-16-0000584sdo by DinSFLA on Scribd

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Bureau of Consumer Financial Protection Announces Settlement With Wells Fargo For Auto-Loan Administration and Mortgage Practices

Bureau of Consumer Financial Protection Announces Settlement With Wells Fargo For Auto-Loan Administration and Mortgage Practices

WASHINGTON, D.C. — Today the Bureau of Consumer Financial Protection (Bureau) announced a settlement with Wells Fargo Bank, N.A. in a coordinated action with the Office of the Comptroller of the Currency (OCC). As described in the consent order, the Bureau found that Wells Fargo violated the Consumer Financial Protection Act (CFPA) in the way it administered a mandatory insurance program related to its auto loans. The Bureau also found that Wells Fargo violated the CFPA in how it charged certain borrowers for mortgage interest rate-lock extensions. Under the terms of the consent orders, Wells Fargo will remediate harmed consumers and undertake certain activities related to its risk management and compliance management. The Bureau assessed a $1 billion penalty against the bank and credited the $500 million penalty collected by the OCC toward the satisfaction of its fine.

“I am especially pleased that we were able to work closely and effectively with our colleagues at the OCC, and I appreciate the key role they played in the negotiations,” said Bureau Acting Director Mick Mulvaney. “As to the terms of the settlement: we have said all along that we will enforce the law. That is what we did here.”

The Bureau’s Wells Fargo consent order is available at: https://files.consumerfinance.gov/f/documents/cfpb_wells-fargo-bank-na_consent-order_2018-04.pdf 

The OCC’s Wells Fargo consent order is available at: https://www.occ.gov/news-issuances/news-releases/2018/nr-occ-2018-41.html 

### 
The Bureau of Consumer Financial Protection is a 21st century agency that helps consumer finance markets work by regularly identifying and addressing outdated, unnecessary, or unduly burdensome regulations, by making rules more effective, by consistently enforcing federal consumer financial law, and by empowering consumers to take more control over their economic lives. For more information, visit consumerfinance.gov.

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Wells Fargo Needs An Extension To Meet OCC Consent Order

Wells Fargo Needs An Extension To Meet OCC Consent Order

PYMNTS-

Wells Fargo, the embattled bank, is gearing up to ask the Office of the Comptroller of the Currency for an extension to a deadline to meet an enforcement action that has to do with anti-money laundering controls at the bank.

The Wall Street Journal, citing people familiar with the matter, reported the bank’s wholesale business, which provides services to large corporations, is having a hard time meeting a consent order from November of 2015. The consent order stems from problems related to how the bank ensures the proper identification documents of new and existing customers. It has a June 30 deadline to meet the consent order. If it fails to meet the deadline, it could be hit with another enforcement action, people familiar with the matter told The Wall Street Journal.  The bank, during the past few months, has been talking to the OCC about meeting the consent order, noted the report.

According to The Wall Street Journal, at the time of the action in November of 2015, Wells Fargo had more than 100,000 customer accounts that had to be verified, while thousands more needed specific work. Leading up to the consent order, the OCC has given Wells Fargo notices that it had deficiencies in controlling for money laundering. The enforcement action was taken in part because Wells Fargo didn’t address the concerns of the OCC.

[PYMNTS]

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TFH 4/22 | Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the  Legal Right To Foreclose in Your State

TFH 4/22 | Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the Legal Right To Foreclose in Your State

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

Sunday – April 22, 2018

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 ———————
Foreclosure Workshop #56: HSBC Bank v. Moore — Determining What Is Required In Court To Prove the Legal Right To Foreclose in Your State

 

 

—————————-

There has probably been no more contested and confusing issue in American law in recent years than who has the right to foreclosure on real property in the United States.

While homeowners, for instance, continue to rely on traditional defenses, such as the lack of a loan general ledger, the lack of requisite TILA notices of the right to rescind, the lack of an adequate default notice, and the expiration of the statute of limitations, for instance, all of which have themselves generated an enormous amount of contested litigation, including appeals, they are now all being dwarfed in comparison to the present dispute in the case law over who has “standing” to foreclose and whether the requirement of standing is jurisdictionally sufficient to support later collateral attack.

After reviewing hundreds of recent “standing” appeals in dozens of State and Federal jurisdictions, it is clear that there is presently no consensus in the United States as to what needs to be proven to establish the right to foreclosure on real property.

The law of standing to foreclose reportedly started to be litigated in the nineteenth century in two famous cases, Carpenter v. Longan, decided in the U.S. Supreme Court in 1872, holding that the Mortgage followed the Note, and Merritt v. Bartholick, decided in the N.Y. Court of Appeals in 1867, holding that an attempted transfer of the Mortgage without the Note was void unless a contrary intent to transfer the Note also be proven.

Meanwhile, recording laws in the States emphasizing proof of Mortgage ownership and lien priorities, as well as the adoption of the UCC with its confusing and contradictory language relating to its applicability to secured promissory notes, created unresolved tension between the traditional Carpenter/Merritt view and the confusion and differing judicial interpretations regarding who had the right to foreclose and what proof of that right is required.

That confusion was further complicated by the fact that State laws provide for the foreclosure of mortgages and deeds of trust without mentioning promissory notes.

Then, with the advent of securitization, much of the contested foreclosure case law has now shifted to the issue of who has standing, which is the topic for today’s show, where we will try to answer some of the most disputed issues in foreclosure defense, such as:

1. Does a foreclosing plaintiff have to prove ownership and/or possession of the underlying mortgage and/or note?

2. How can that ownership and/or possession be proven?

3. Who are the real parties in interest and/or the indispensable parties who need to be named and served in a foreclosure action when a securitized Mortgage loan is involved?

4. Does the Mortgage follow the Note or does the Note follow the Mortgage or both when a securitized Mortgage Loan is involved?

In examining these fundamental standing questions, we will examine for insight a recent decision of the Hawaii Intermediate Court of Appeals in HSBC v. Moore, decided April 20, 2018, the opinion in which will be posted on the past broadcast section of our website www.foreclosurehour.com following our live broadcast of today’s show.

We will also suggest a means by which State courts can eliminate such expensive confusion while being fair to both lenders and borrowers alike, as well as eliminate the present unnecessary burden on our courts.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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HSBC Bank USA v. Moore | Hawaii ICA – Dubin Law Offices annihilates HSBC in this awesome order- “Qualified Witness” FAIL! “Assignment of Mortgage” FAIL! “Possession of Note” FAIL! “Allonge to Note” FAIL! — VACATED AND REMANDED

HSBC Bank USA v. Moore | Hawaii ICA – Dubin Law Offices annihilates HSBC in this awesome order- “Qualified Witness” FAIL! “Assignment of Mortgage” FAIL! “Possession of Note” FAIL! “Allonge to Note” FAIL! — VACATED AND REMANDED

034790260 by DinSFLA on Scribd

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Wells Fargo nears $1 billion settlement for loan abuses

Wells Fargo nears $1 billion settlement for loan abuses

Reuters-

Wells Fargo & Co (WFC.N) is close to settling a record fine of $1 billion imposed by two U.S. regulators for its risk management business, a source familiar with the matter told Reuters on Thursday.

Last week, the U.S. Consumer Financial Protection Bureau (CFPB) and the Office of the Comptroller of the Currency (OCC) proposed Wells Fargo to pay the penalty to resolve probes into auto insurance and mortgage lending abuses at the third largest U.S. bank.

Wells Fargo declined to comment.

[REUTERS]

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Foreclosure starts rise as moratoria in Texas and Florida end

Foreclosure starts rise as moratoria in Texas and Florida end

National Mortgage News-

March’s increase in foreclosure starts was a direct result of the end of the moratorium for borrowers affected by Hurricanes Harvey and Irma, Black Knight said.

There were 52,100 foreclosure starts in March, up 11.56% over February’s 46,700. Florida and Texas were responsible for two-thirds of that increase, Black Knight said in its monthly first look report.

Compared to last March, foreclosure starts were down 13.6%.

On the good news side, serious delinquencies attributable to Hurricanes Harvey and Irma declined by 19,500 loans.

[NATIONAL MORTGAGE NEWS]

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Wells Fargo fired whistleblower for complaints about incentives to mislead: lawsuit

Wells Fargo fired whistleblower for complaints about incentives to mislead: lawsuit

East Bay Times-

The former head of beleaguered San Francisco-based bank Wells Fargo’s foreign exchange group claims he was fired weeks before he was to tell federal regulators about incentives that encouraged employees to “make false and misleading representations to customers, to engage in abusive sales practices, and to enrich themselves at the expense of clients.”

That’s according to the legal firm representing him in a lawsuit filed Thursday in San Francisco County Superior Court.

Wells Fargo declined to comment.

Simon Fowles alleges that he was terminated after years of making complaints to his managers and high-level executives about goings-on in the foreign exchange sales department. He had told bank management he planned to tell the U.S. Office of Controller of the Currency about the incentives, and was sacked “just weeks before” he was scheduled to talk to the regulators, his law firm said.

[EAST BAY TIMES]

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HSBC BANK USA, NATIONAL ASSOCIATION v. BUSET | Florida’s Third District Court of Appeal Rejects Trial Court’s Findings on Borrowers’ Defenses, Including “Unclean Hands,” and Reverses Involuntary Dismissal in Foreclosure Action

HSBC BANK USA, NATIONAL ASSOCIATION v. BUSET | Florida’s Third District Court of Appeal Rejects Trial Court’s Findings on Borrowers’ Defenses, Including “Unclean Hands,” and Reverses Involuntary Dismissal in Foreclosure Action

Lexology-

A unanimous three-judge panel for Florida’s Third District Court of Appeal recently issued an opinion that will have a significant impact on the scope of certain defenses that are routinely asserted by defense counsel in foreclosure litigation.

The case, HSBC Bank USA, National Association v. Buset, No. 3D16-1383, 2018 WL 735265 (Fla. 3d DCA Feb. 7, 2018) (“Buset”), stems from a foreclosure action initiated in October 2012 by HSBC Bank USA, National Association, as Trustee For Freemont Home Loan Trust 2005-B, Mortgaged-Backed Certificates, Series 2005-B (the “Trustee”) against Margaret Buset and Joseph T. Buset (collectively, the “Borrowers”).

The Borrowers admitted their default under the Note and Mortgage and the Trustee demonstrated its right of enforcement from the action’s inception, attaching a copy of the Note, specially indorsed to it, to the Complaint and later filing the original Note in the same condition with the trial court. Hoping to, nonetheless, avoid foreclosure, Borrowers aggressively defended the action based on multiple defenses asserting, among other things, unclean hands, and lack of standing.

[LEXOLOGY]

HSBC Bank USA, National Association, etc., Appellant,
v.
Joseph T. Buset, etc., et al., Appellees.

Case No. 3D16-1383.
District Court of Appeal of Florida, Third District.

Opinion filed February 7, 2018.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 12-38811, Beatrice Butchko, Judge.

Greenberg Traurig, P.A., and Kimberly S. Mello, Jonathan S. Tannen, and Vitaliy Kats (Tampa), for appellant.

Jacobs Keeley, PLLC, and Bruce Jacobs and Court Keeley, for appellee Joseph T. Buset.

Levine Kellogg Lehman Schneider Grossman LLP, and Stephanie Reed Traband and Victor Petrescu, for Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, as amici curiae.

Before LOGUE, LUCK, and LINDSEY, JJ.

LOGUE, Judge.

HSBC Bank USA, National Association appeals a final judgment dismissing its mortgage foreclosure complaint in favor of the Borrowers, Joseph and Margaret Buset. At first blush, this case appears straightforward: the Borrowers stipulated to the note, mortgage, and default. And at the time the complaint was filed, the Bank was the holder of the note with an indorsement in blank that had been modified to a special indorsement to the Bank. At some point, however, the focus of this case shifted from foreclosure to securitization. Relying heavily on expert legal testimony of an out-of-state lawyer who specialized in securitization, the trial court dismissed the foreclosure after the trial. For the reasons described below, we reverse and direct the trial court to enter judgment for the Bank.

FACTS

In October 2012, HSBC Bank as Trustee for Fremont Home Loan Trust 2005-B filed a foreclosure action against the Busets. The complaint alleged that the Bank held the note and mortgage, the Busets had failed to pay, and the Bank had complied with all conditions precedent. Copies of the note and mortgage were attached to the complaint.

The evidence at trial indicated that on February 16, 2005, the Busets borrowed $192,000 from Fremont Investment & Loan (the Originator). The loan was secured by a mortgage on a residential condominium. The mortgage named Mortgage Electronic Registration Systems, Inc. (MERS) as “mortgagee.”

Within a few months, the Originator packaged the note with others for purposes of securitization and sale to investors. In this regard, the Originator entered into a Pooling and Servicing Agreement for the “Fremont Home Loan Trust 2005-B Mortgage Backed Certificates Series 2005-B.” The parties to the Agreement included the Originator, another entity as Depositor, and the Bank as Trustee.

The Pooling and Servicing Agreement required the Originator to sign blank indorsements in the following form: “Pay to the order of _____, without recourse.” The note contains an undated, signed, blank indorsement in exactly that form signed by the Senior Vice President of the Originator. As required by the Agreement, the Note was transferred from the Originator, to the Depositor, to the Bank. In July 2008, the Originator entered into a voluntary liquidation. At an unknown date, the Originator’s blank indorsement was converted to a special indorsement to the Bank as payee. This handwritten change was undated and unsigned.

In 2012, after the Borrowers defaulted on the note, MERS executed a recorded assignment of the mortgage to the Bank which reads “This assignment is from . . . MERS as nominee for Fremont Investment & Loan, . . . its successors and assigns . . . to HSBC Bank.”

Over the course of its history, the loan had three servicers. To prove the amount of the default at trial, the Bank offered the testimony of the current servicer who proffered as business records the payment history, default letters, and payoff printout. These records indicated the Borrowers had stopped making payments by September 1, 2010. The trial court, however, excluded the documents from evidence, concluding that the Bank failed to present a sufficient foundation.

The Borrowers presented one witness, Kathleen Cully, who is admitted to the Bar of New York but not Florida. She is an expert in securitizing income flows for sale to investors, but she acknowledged she was “not an expert in Florida law.” Over the Bank’s objection, Ms. Cully testified to numerous legal opinions, including her opinions that the note at issue was not negotiable; that the Bank lacked standing; and that the Pooling and Servicing Agreement was violated.

After trial, the trial court dismissed the case. Throughout the final judgment, the trial court emphasized that its legal conclusions were based on Cully’s opinions, mentioning Cully by name at least seven times. Regarding Cully’s legal opinions, the final judgment included statements such as the trial court “gives great weight as the trier of fact to the testimony of Defendant’s expert witness, Kathleen Cully,” suggesting Cully’s opinions presented questions of fact subject to credibility determinations rather than legal issues controlled by Florida law. The final judgment holds in relevant part that (1) the note was not a negotiable instrument; (2) the Bank lacked standing; (3) the Bank violated the Pooling and Servicing Agreement; (4) the Servicer’s business records were inadmissible; and (5) the Bank had unclean hands. The Bank timely appealed.

ANALYSIS

(1) The trial court erred by admitting expert testimony on legal issues.

The Bank argues that the trial court committed reversible error by permitting Ms. Cully, the Borrowers’ expert witness, to testify to legal issues. We agree. Even if Cully had an expertise in Florida law, the admission of expert testimony on the legal issues central to the case was an abuse of discretion.

The law is well established that “[a]n expert should not be allowed to testify concerning questions of law.” Edward J. Seibert, A.I.A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc., 573 So. 2d 889, 891 (Fla. 2d DCA 1990). As this court has explained, “opinion that amounts to a conclusion of law cannot be properly received in evidence since the determination of such questions is exclusively within the province of the court.” McKesson Medication Mgmt., LLC v. Slavin, 75 So. 3d 308, 312 n.5 (Fla. 3d DCA 2011) (citations omitted). See also Lee Cty. v. Barnett Banks, Inc., 711 So. 2d 34, 34 (Fla. 2d DCA 1997) (stating that “[e]xpert testimony is not admissible concerning a question of law” because the resolution of legal issues “is a legal determination to be made by the trial judge, with the assistance of counsels’ legal arguments, not by way of `expert opinion'”).

(2) The note was a negotiable instrument under Florida law.

(a) In General

The trial court concluded that the note was non-negotiable for three different reasons. First, the final judgment states “[t]he Court applies Ms. Cully’s reasoned analysis as it relates to the note and mortgage for the subject loan and to Article 3 of Florida’s Uniform Commercial Code.” Ms. Cully opined that a promissory note secured by a mortgage was a secured interest under Article 9 and not a negotiable instrument under Article 3.

For over a century, however, the Florida Supreme Court has held such notes are negotiable instruments. Downing v. The First Nat’l Bank of Lake City, 81 So. 2d 486, 488 (Fla. 1955) (quoting Scott v. Taylor, 63 Fla. 612 (1912)) (a note and mortgage “are governed by the rules relating to negotiable paper”). And every District Court of Appeal in Florida has affirmed this principle.[1] Even if, as the trial court noted in the final order, “no Florida appellate court has yet to consider Ms. Cully’s analysis,” the trial court erred by failing to follow controlling precedent. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (noting that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”).

(b) Negotiability was not destroyed by the note’s reference to the mortgage.

The second reason the trial court concluded that the note was not a negotiable instrument was Cully’s testimony that the note’s negotiability was destroyed because it referred to the mortgage which purportedly contained provisions limiting transferability. The final judgment’s analysis in this regard was expressly rejected in OneWest Bank, FSB v. Nunez, 193 So. 3d 13, 15 (Fla. 4th DCA 2016).

Although a note’s negotiability may be destroyed if the note expressly incorporates a mortgage that contains terms that would limit transferability, Holly Hill Acres, Ltd. v Charter Bank of Gainesville, 314 So. 2d 209 (Fla. 2d DCA 1975), the Nunez court clarified that this principle applies only if the note expressly incorporates the terms of the mortgage: it does not apply when the note merely references the mortgage. As the Fourth District explained,

there is a difference between a mere reference to a note being secured by a mortgage and stating that “the terms of said mortgage are by this reference made a part hereof.” The former merely referred to a separate agreement, while the latter rendered the note “subject to” the mortgage, and therefore, non-negotiable.

Nunez, 193 So. 3d at 16. This distinction is recognized by Florida’s Uniform Commercial Code. § 673.1061, Fla. Stat. (“A reference to another writing does not of itself make the promise or order conditional.”).

The distinction identified by the Nunez court applies here. While the note at issue in this case mentions the mortgage (“In addition to the protections given the Note Holder under this Note, a Mortgage . . . protects the Note Holder from possible losses. . . .”), it does not expressly incorporate the mortgage like the note in Holly Hill (“The terms of said mortgage are by this reference made a part hereof.”). For this reason, it does not matter whether the terms of the mortgage would prevent negotiability if they were incorporated into the note because the terms of the mortgage were not incorporated into the note.

(c) Negotiability was not destroyed by the definition of “Note Holder.”

The trial court’s third reason for concluding that the note was not a negotiable instrument was Cully’s testimony that the note’s negotiability was destroyed by its definition of “Note Holder.” The note defined “Note Holder” as “anyone who takes this Note by transfer and who is entitled to receive payments under this Note.” The final judgment reasoned that this language showed the parties intended “to contract out of the UCC definition of holder, so as to limit the right to enforce only to those who proved ownership.” But this reasoning was expressly rejected in Horvath v. Bank of New York, N.A., 641 F.3d 617, 622 (4th Cir. 2011).

In Horvath, the Fourth Circuit refused to interpret identical language, which defined “Noteholder” as “anyone who takes this Note by transfer and who is entitled to receive payments under this Note,” as indicating an intent to destroy the note’s negotiability. Id. at 622. To the contrary, the circuit court of appeals held the language meant “precisely the opposite.” Id. It held that a note with this language was a negotiable instrument. Like the appellate court in Horvath, after carefully studying this provision of the note at issue here, we cannot find any intent in this language to limit the transferability of the note in a manner that indicates an intent by the parties to destroy its negotiability.

(3) The Bank had standing to foreclose.

Again following Ms. Cully’s testimony, the trial court concluded the Bank did not have standing because the lack of “a complete chain of endorsements on the face of the note” created a “fatal break in the chain of title.” This statement misapprehends the nature of negotiable instruments.

Because a foreclosure case is an action to enforce a negotiable instrument, standing in a foreclosure case is not based upon ownership of the note; it is based instead on whether the plaintiff is a “person entitled to enforce.” § 673.3011. The term “person entitled to enforce” is a technical, defined term in all versions of the Uniform Commercial Code, including Florida’s. Id. An entity may qualify as a “person entitled to enforce” for several reasons, but the most common reason is that the entity is “the holder of the instrument.” Id. In a case where the plaintiff is asserting standing based upon its status as a “person entitled to enforce” because it is the holder of the instrument, proof of who owns the note is not necessary or even relevant to the issue of standing. Id. (“A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”).[2]

Proof of who owns the note, such as a chain of title, may be relevant to a dispute where a person claims his or her ownership interest trumps the interest of the holder, but the borrower cannot make this argument on its own; instead, the person making that claim must be “joined in the action and personally assert[] the claim against the person entitled to enforce the instrument.” § 673.3051(3). Even then, ownership is not relevant to standing so much as the question of who is the ultimate beneficial owner of the proceeds of the foreclosure, an issue not normally or necessarily part of a foreclosure case. In this regard, trial courts presiding over foreclosure cases are well served to keep in mind the following “oft-overlooked point”:

Article 3 is sufficiently flexible to allow a single identified person to be both the “person entitled to enforce” the note, and an agent for all those who may have ownership interests in a note. This point reflects the view that so long as the maker’s obligation is discharged by payment, the maker should be indifferent as to whether the “person entitled to enforce” the note satisfies his or her obligations, under the law of agency, to the ultimate owners of the note.

Veal v. Am. Home Mortg. Serv., Inc., 450 B.R. 897, 912 (B.A.P. 9th Cir. 2011).

Accordingly, because a plaintiff asserting standing based on its status as a holder of the note does not have to prove ownership, a plaintiff does not normally ave to establish a “chain of indorsements” or a “chain of title.” Summerlin Asset Mgmt. v Tr. v. Jackson, No. 9:14-CV-81302, 2015 WL 4065372, at *2 (S.D. Fla. July 2, 2015) (“Although Plaintiff has set forth a valid chain of assignments, the negotiation of the blank-indorsed note by transfer of possession alone makes Plaintiff the `holder’ of the note entitled to enforce it.”); Baroni v. Bank of New York Mellon, No. 1:12-BK-10986-MB, 2016 WL 9211660, at *2 (C.D. Cal. Oct. 3, 2016) (“[The Bank] holds a negotiable instrument and has no duty to provide an unbroken chain of title.”); JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1266 (2013) (“We conclude that the Note secured by the Mortgage in the instant case is a negotiable instrument. . . . As such, we find [the Borrower’s] challenges to the chain of possession by which [the Bank] came to hold the Note immaterial to its enforceability by [the Bank].”).

Turning to the facts of this case, because the Bank asserted standing based on its status as a holder of the note, it was error for the trial court to allow the focus of the pre-trial proceedings and the trial itself to shift from the relevant issue of whether the Bank is a “person entitled to enforce” to the irrelevant issue of whether the Bank is the owner of the note. The note here contained a blank indorsement by the Originator in exactly the form required by the Pooling and Servicing Agreement (“Pay to the order of ______, without recourse”). Once this blank indorsement was made on the note, the note became bearer paper, fully negotiable by simple transfer, like a signed check made out to cash or a signed check with the payee left blank. See, e.g., § 673.2011 (“If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”). Negotiability by simple transfer is one of the defining characteristic of this type of commercial paper. It reflects one major difference between a negotiable instrument and, for example, a deed to land.

Any holder then became fully entitled to fill in the blank and name a specific payee, as happened here. See § 673.2051(3) (“The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.”). See generally Grand Lodge, Knights of Pythias of Fla., v. State Bank of Fla., 84 So. 528, 534 (1920) (“[A] holder for value of negotiable paper otherwise perfect has the right to fill in the name of the payee.”).

Under the law of negotiable instruments, therefore, the Bank had standing because it was the holder of a note originally indorsed in blank and then specially indorsed to the Bank. See, e.g., US Bank Nat’l Ass’n v. Laird, 200 So. 3d 176, 177 (Fla. 5th DCA 2016) (concluding the Bank demonstrated it had standing when it “attached to its complaint a copy of the note and a copy of an allonge which contained a specific indorsement” to the Bank, and the Bank “later filed with the court the original note and allonge in the same condition”); Wells Fargo Bank, N.A. v. Morcom, 125 So. 3d 320, 322 (Fla. 5th DCA 2013) (“In the present case, the original note Appellant attached was endorsed in blank with Appellant’s name stamped in the blank endorsement field, which, paired with section 673.3011(1), established that Appellant was the holder entitled to enforce the instrument.”); McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (noting a holder has standing of a note that either bears “a special endorsement in favor of the plaintiff or a blank endorsement”).

(4) The purported violations of the Pooling and Servicing Agreement did not destroy standing.

The trial court further concluded that the Bank lacked standing because of violations of the Pooling and Servicing Agreement. For example, relying upon Cully’s testimony, the trial court found the Bank lacked standing because the “endorsement is contrary to the unequivocal terms of the PSA . . . which required all intervening endorsements be affixed to the face of the note because there was ample room for endorsements on the face of the note.” This analysis missed the mark. The Borrowers are not parties to and are not third-party beneficiaries of the Pooling and Servicing Agreement. Indeed, the interests of the defaulting borrowers are adverse to the interests of the parties to the Agreement. Jepson v. Bank of New York Mellon, 816 F.3d 942, 946 (7th Cir. 2016).

Because the Borrowers are not parties or third-party beneficiaries to the Pooling and Servicing Agreement, they cannot raise purported violations of the Agreement to defend against foreclosure: “borrowers cannot defeat a foreclosure plaintiff’s standing by relying upon trust documents to which the borrower is not a party.” Citibank, N.A. v. Olsak, 208 So. 3d 227, 230 (Fla. 3d DCA 2016); see also Castillo v. Deutsche Bank Nat’l Tr. Co., 89 So. 3d 1069 (Fla. 3d DCA 2012) (“Because the appellant is neither a party to nor a third-party beneficiary of the trust, we find the appellant lacks standing to raise this issue and affirm the final judgment of foreclosure in favor of the appellee, as the holder of the original note and mortgage.”); Jepson, 816 F.3d at 946 (“a mortgagor whose loan is owned by a trust is not an intended beneficiary of a trust, and does not have standing to challenge the trustee’s possession or status as assignee of the note and mortgage based on purported noncompliance with certain provisions of a PSA [Pooling and Servicing Agreement]”) (citations and quotations omitted).

(5) The assignment of the mortgage did not destroy standing.

As mentioned above, in preparation for the foreclosure, on June 25, 2012, MERS assigned the mortgage to the Bank in an assignment that was recorded in the public records on July 16, 2012. The mortgage had named MERS “as nominee for Lender and Lender’s successors and assigns.” And as reflected in the recorded assignment, MERS assigned the mortgage to the Bank “as nominee for Fremont Investment & Loan, . . . its successors and assigns.” The trial court found illegality here, concluding that the assignment should have expressly identified the Depositor and the Bank by name rather referring to them in the expression “Fremont, . . . its successors and assigns.” But there was nothing illegal or improper in the language used.

Moreover, the assignment of the mortgage was superfluous. It was unnecessary because Florida law has always held that the mortgage follows the note. See, e.g., First Nat. Bank of Quincy v. Guyton, 72 So. 460, 460 (Fla. 1916) (noting that “when a note secured by mortgage is transferred, the mortgage follows the note as an incident thereto”); US Bank, NA v. Glicken, 228 So. 3d 1194, 1196 (Fla. 5th DCA 2017) (“Indeed, the mortgage follows the note.”). Thus, even if this assignment were void or voidable, which it is not, the Bank, as holder of the note, would have the authority to foreclosure the mortgage.

(6) The Servicer’s business records were admissible.

At trial, the trial court excluded from evidence the payment history, default letters, and payoff printout, concluding that the Bank failed to make a proper foundation. This also was error.

Here, the Bank’s loan analyst provided substantial testimony regarding the records. According to her testimony, she did not create the records, but she was trained on how these records were created and stored. The loan was first serviced by Fremont Investment & Loan, then by Litton Loan Servicing LP, and then Litton was acquired in its entirety by the current loan servicer, Ocwen Loan Servicing, LLC. The payment history, the default letters, and the payoff printout were essential records created in the regular course and scope of the servicers’ business of servicing loans and mortgages, as is standard for this industry. By industry practice, the records of the amounts paid and remaining due are made at or near the time of the payment. The records acquired from the previous servicers were subject to a boarding process although not an audit. In fact, the servicer still has access to the records of the prior servicer it acquired.

This testimony provided a sufficient foundation to admit the records. Deutsche Bank Nat’l Tr. Co. v. de Brito, No. 3D16-1466, 2017 WL 5163048, at *2 (Fla. 3d DCA Nov. 8, 2017) (reversing the trial court’s exclusion of similar evidence based on virtually identical testimony laying the foundation of the business records)._Indeed, “[w]here a business takes custody of another business’s records and integrates them within its own records” the trustworthiness requirement of the records will be met in “most instances . . . by providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy.” Bank of New York v. Calloway, 157 So. 3d 1064, 1071-72 (Fla. 4th DCA 2015).

Significantly, the Borrowers did not present any evidence challenging the accuracy of the records. Indeed, they stipulated before trial that they had no ability to testify even to the payments they had made on the note. See WAMCO XXVIII, Ltd. v. Integrated Elec. Env’ts, Inc., 903 So. 2d 230, 233 (Fla. 2d DCA 2005) (“The [opponents to admission of the business records] did not demonstrate, and nothing in the record establishes, that the loan information WAMCO received from Bank of America was suspect or untrustworthy or that the balances that WAMCO claimed as due were incorrect.”).

(7) The Bank did not have unclean hands justifying dismissal.

Finally, the trial court dismissed the case because it concluded the Bank was acting with unclean hands by trying to defraud the court. For example, the final judgment states “[t]his court finds the AOM [assignment of mortgage] in 2012 does not document a transaction that occurred in 2005, as [the Bank] suggests” (emphasis added). It is not exactly clear what the trial court intended by this language. Taken literally, the final order seems to indicate the Bank endeavored to fraudulently induce the trial court into believing the 2012 assignment occurred in 2005.

Our careful review of the record, however, revealed nothing that supports this contention. Indeed, it was the Bank that offered the assignment of mortgage into evidence; the assignment is dated on its face as June 25, 2012; the copy of the assignment offered by the Bank into evidence indicates on its face it was recorded in the public records on July 16, 2012; and the Bank’s witness consistently testified the assignment was executed in 2012. We surmise that the trial court’s real concern was that the form of the assignment was insufficient because it referred to the Originator’s “successors and assigns” but failed to expressly name them. We rejected this argument in our discussion above.

CONCLUSION

Accordingly, the final order is reversed. This case is remanded with instructions that the trial court enter an appropriate final judgment of foreclosure.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

[1] See, e.g., Fed. Nat’l Mortgage Ass’n v. McFadyen, 194 So. 3d 418, 419 (Fla. 3d DCA 2016)(“Promissory notes are, by definition, negotiable instruments. . . .”); Seffar v. Residential Credit Sols., Inc., 160 So. 3d 122, 125 (Fla. 4th DCA 2015) (recognizing a promissory note as a negotiable instrument); Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (recognizing promissory note as negotiable instrument); Mazine v. M & I Bank, 67 So. 3d 1129 (Fla. 1st DCA 2011) (recognizing the promissory note as a negotiable instrument); Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 727 (Fla. 5th DCA 2004) (noting that “[a] promissory note is clearly a negotiable instrument within the definition of section 673.1041(1)”).

[2] Although adopted after the filing of the complaint in this case, section 702.015, Florida Statutes (2017), Florida Rule of Civil Procedure 1.115 and Forms 1.944(a) and (b), have established pleading requirements and certifications related to a plaintiff’s status as a person entitled to enforce.

 

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Posted in STOP FORECLOSURE FRAUD1 Comment

Foreclosure hangover: How the 2008 crisis created a new class of renter

Foreclosure hangover: How the 2008 crisis created a new class of renter

The Mercury News-

For decades, the single-family house surrounded by a white picket fence has symbolized the American dream of home ownership.

But these days those picture-perfect homes increasingly are occupied by renters, not owners — a new trend with roots in the foreclosure crisis 10 years earlier, according to a recent study by UC Berkeley’s Terner Center for Housing Innovation.

Tenants renting single-family homes make up the fastest growing segment of the U.S. housing market, but they are vastly overlooked, unable to benefit from some protections enjoyed by tenants living in apartments, the Terner Center researchers found. It’s an issue in the Bay Area — where high home prices and a shortage of houses for sale have locked many renters out of ownership.

[THE MERCURY NEWS]

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Deutsche Bank National Trust Co. v. Wuensch | WI Supreme Court Upholds Foreclosure Judgment, Bank “Possessed” the Note

Deutsche Bank National Trust Co. v. Wuensch | WI Supreme Court Upholds Foreclosure Judgment, Bank “Possessed” the Note

WisBar News-

The Wisconsin Supreme Court has ruled (5-2) that an attorney’s presentment of an original note secured by a mortgage in court was enough to establish that the bank was entitled to judgment of foreclosure based on “possession” of the note.

That is, in Deutsche Bank National Trust Co. v. Wuensch, 2018 WI 35 (April 17, 2018), the majority ruled that “presentment of a party’s attorney of an original, wet-ink note endorsed in blank is admissible evidence and enforceable against the borrower without further proof that the holder had possession at the time the foreclosure action was filed.”

The majority’s decision reversed the appeals court, which had ruled that an attorney’s “possession” of a purported original note, endorsed in blank, was not sufficient to prove the attorney’s client “possessed” the note for purposes of a foreclosure action.

[WISBAR NEWS]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Wells Fargo says it faces a $1 billion penalty for its mortgage and auto business misdeeds

Wells Fargo says it faces a $1 billion penalty for its mortgage and auto business misdeeds

Pittsburgh-Post Gazette-

Wells Fargo said Friday that it faces a potential $1 billion in fines to resolve government investigations into the megabank’s behavior in the auto and mortgage markets.

The bank has acknowledged that it charged thousands of customers for auto insurance they didn’t need, driving some to default on their loans and lose their cars through repossession. The bank has also said it will refund customers who were charged improper fees to lock in an interest rate for a Wells Fargo mortgage.

Both matters have been under investigation for months by two federal regulators, the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency. Those regulators are offering to resolve the matter for a combined $1 billion, the bank said. Such a large civil penalty would be the latest hit to Wells Fargo’s effort to rebuild its image after more than a year of scandal.

[PITTSBURGH POST GAZETTE]

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Posted in STOP FORECLOSURE FRAUD2 Comments

TFH 4/15/18 | What Every Homeowner Needs To Know To Survive Foreclosure About the Hidden Distinction Between Structure Versus Function in Legal Analysis — Plus Announcing a New Partnership Between the National Consumer Law Center Publications and The Foreclosure Hour

TFH 4/15/18 | What Every Homeowner Needs To Know To Survive Foreclosure About the Hidden Distinction Between Structure Versus Function in Legal Analysis — Plus Announcing a New Partnership Between the National Consumer Law Center Publications and The Foreclosure Hour

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

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Sunday – April 15, 2018

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 ———————
What Every Homeowner Needs To Know To Survive Foreclosure About the Hidden Distinction Between Structure Versus Function in Legal Analysis — Plus Announcing a New Partnership Between the National Consumer Law Center Publications and The Foreclosure Hour

 

—————————-

First, we are pleased to announce that The Foreclosure Hour has entered into a partnership with the National Consumer Law Center Publications to provide our listeners with a significant purchase discount, to be announced on our show, on all of their invaluable publications which we will discuss in depth this Sunday.

The publications of the National Consumer Law Center are indispensable to consumer defense in many areas, particularly foreclosure defense, of help to lawyers and pro se parties alike.

Listeners unfamiliar with its publications will be amazed to learn about all of its detailed research and will receive on today’s show a special promotional discount code.

Having its publications in your hands is equivalent to having an army of especially competent research attorneys on your personal staff working for you who instantly provide at very minimal cost a clearly readable and understandable up-to-date summary of foreclosure related statutory and case law in all American jurisdictions, including form pleadings and form discovery requests as well as litigation strategies throughout.

Second, we will discuss Part Two in our series on the Rule Ritual by exploring what really controls and triggers changes not only in foreclosure laws, but in laws throughout the American legal system, the difference between structure and function in legal reasoning, enabling you to better understand and be more successfully arguing and handling case precedent in court in individual cases.

On most of our shows we concentrate on reviewing specific cases and specific foreclosure related issues, but today we pause to switch our attention to more basic research.

Understanding the difference between structure and function in legal reasoning will surprise you by unlocking for our listeners secrets that even most lawyers are consciously unaware of.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

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The Foreclosure Hour 12

 

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Senate Passes Bill To Deregulate Banks With Democrats’ Help

Senate Passes Bill To Deregulate Banks With Democrats’ Help

Small banks, big banks and even credit monitoring companies like Equifax score with this legislation.

HUFFPO-

The Senate on Wednesday passed a bill so friendly to banks that even a Republican worried it goes too far.

By a vote of 67-to-31, the Senate passed the Economic Growth, Regulatory Relief, and Consumer Protection Act, which is aimed at reducing the regulatory burden on struggling community banks ? even though most such banks are thriving. Supporters also argued that the bill would make it easier for Americans to buy a home by increasing their access to capital.

The measure would also exempt 25 of America’s biggest banks from regulations created in response to the financial crisis that contributed to the Great Recession a decade ago. The Congressional Budget Office warned that the risk of another financial crisis “would be slightly greater under the legislation.”

[HUFFINGTONPOST]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Wells Fargo could face another record fine

Wells Fargo could face another record fine

CBS NEWS-

Wells Fargo (WFC) is in talks with the Consumer Financial Protection Bureau regarding penalties running into the hundreds millions of dollars, or possibly higher, for mortgage-lending and auto-insurance abuses, according to reporting from Reuters. The San Francisco bank’s troubles are long-running, likely to continue — and certain to be a hot topic when Mick Mulvaney, the CFPB’s acting director, testifies before the House Financial Services Committee on Wednesday and the Senate Banking Committee on Thursday.

Reuters cited three sources with knowledge of the plans in reporting that Mulvaney may be pushing for a record fine as high as $1 billion. The penalty would be the first by the CFPB under Mulvaney, tapped by President Donald Trump in November to head the consumer watchdog for finance.

Chances are good that Wells Fargo’s woes won’t disappear even if a record fine is levied. That’s because “the bank remains the ideal target for those on the far right and far left who believe the biggest banks are too large to manage,” Jaret Seiberg, an analyst with Cowen Washington Research group, wrote in a client note. “Even large fines do not put issues to rest. If anything, the size of the penalty is likely to result in even more political pressure on the bank.”

[CBS NEWS]

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Atlas Consumer Law Secures $3,582,000 jury verdict obtained by Monette Saccameno, a resident of Cook County Illinois, and against Ocwen Loan Servicing LLC, a national mortgage loan servicer

Atlas Consumer Law Secures $3,582,000 jury verdict obtained by Monette Saccameno, a resident of Cook County Illinois, and against Ocwen Loan Servicing LLC, a national mortgage loan servicer

(MENAFN Editorial) LOMBARD, Ill., April 11, 2018 /PRNewswire/ –Monette Saccameno secured a jury verdict against Ocwen Loan Servicing LLC (Ocwen), a national mortgage loan servicer for its breach of contract, breach of fiduciary duty, violations of the Real Estate Settlement Procedures Act (RESPA), violations of the Fair Debt Collection Practices Act (FDCPA), and violations of the unfairness and deception provisions of the Illinois Consumer Fraud and Deceptive Business Practices Act. All of Saccameno’s claims dealt with Ocwen’s misconduct in handling and servicing the mortgage loan on Saccameno’s home in Cook County, Illinois, where Saccameno has resided for the last 16 years. Ocwen is headquartered in West Palm Beach, Florida.

Saccameno encountered financial troubles and defaulted on the loan in late 2008. In early 2009, U.S. Bank attempted to foreclose on the property. In December 2009, Saccameno filed a Chapter 13 bankruptcy in order to stop a foreclosure and to catch up on the mortgage arrears on her residence. The plan of reorganization was confirmed by the court on February 17, 2010 and Saccameno began to make both her contractual mortgage payments along with her Chapter 13 plan payments. Saccameno’s mortgage loan was serviced by Litton Loan Servicing for US Bank until US Bank transferred the servicing rights to Ocwen in July 2011. Saccameno made all of her plan payments through the Chapter 13 trustee and made every single mortgage payment directly to Litton Loan Servicing (US Bank) and subsequently to Ocwen once Ocwen took over servicing rights.

Once Ocwen took over the servicing of the note, it began to assess fees and expenses on the account even though Saccameno made every single contractual payment to both Ocwen and the bankruptcy trustee pursuant to her confirmed plan. On June 27, 2013 after Saccameno made her final Chapter 13 plan payment, the trustee issued a Notice of Payment of Final Mortgage Cure to which Ocwen neither objected nor replied thereby deeming the mortgage contractually current. A discharge was entered in the bankruptcy case on June 27, 2013.

Almost immediately after discharge, Ocwen began collecting the paid pre-petition arrears. Plaintiff provided documents to Ocwen in order to correct the errors. As it turns out, the bankruptcy was improperly coded in Ocwen’s mortgage servicing computer system as “dismissed” and not as “discharged”. Saccameno attempted to correct the errors through multiple written requests. Ocwen refused to correct the errors despite multiple requests by her bankruptcy attorney and her personal attorney. In fact, the foreclosure that was filed prior to Saccameno’s bankruptcy in December 2009 continued even after Saccameno’s mortgage loan was deemed current by the Bankruptcy Court. As a result, Saccameno suffered from emotional distress, depression, mental anguish, anxiety and incurred medical expenses and loss of employment and other damages that were incurred during the nearly three and a half year ordeal.

The eight (8) day federal trial concluded on April 11, 2018 in Chicago, Illinois at the Everett McKinley Dirksen United States Court House. The jury, after deliberating for approximately 7 hours, determined that Ocwen breached its contract, violated RESPA for failing to adequately respond to Saccameno’s Qualified Written Request, violated the FDCPA and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act. Monette Saccameno was awarded $500,000.00 in compensatory damages, $70,000.00 in non-economic damages, $12,000.00 in economic damages and $3,000,000.00 in punitive damages. Nicholas Heath Wooten, Esq., Ross Michael Zambon, Esq., and Mohammed Omar Badwan, Esq. led the litigation team on behalf of Saccameno.

The outcome of this trial should come as good news to all consumers who have struggled with aggressive mortgage servicing tactics throughout the ongoing financial crisis. The litigation team was meticulous and methodical in its litigation approach, and was able to obtain a punitive damages award for Saccameno and against Ocwen – an award that is meant to punish and deter future misconduct – under the Illinois Consumer Fraud Act.

Leading Attorneys in Consumer Law:

Ahmad Sulaiman, Esq. is the managing partner of Atlas Consumer Law, a division of Sulaiman Law Group, Ltd. and is also a highly regarded graduate of Gardner’s Consumer Litigation and Bankruptcy Boot Camps. Ahmad is recognized as a thought leader in foreclosure defense, consumer and commercial bankruptcy, and consumer law by his peers. He was designated as a Super Lawyer Rising Star from 2010 through 2018 and is also considered a Leading Lawyer.

Nicholas Heath Wooten, Esq. is the managing partner of Nick Wooten, LLC and is nationally known for his work in mortgage servicing and foreclosure defense litigation. Nick’s courtroom work and writings led to his recognition as a national thought leader on issues of securitization with respect to foreclosure and bankruptcy.

Ross Michael Zambon is the managing partner of Zambon Law, Ltd. and is highly regarded by his peers and adversaries for his litigation work on behalf of consumers. He has been designated as a Super Lawyer Rising Star from 2010 through 2017.

Mohammed O. Badwan, Esq. of Atlas Consumer Law, a division of Sulaiman Law Group, Ltd. is well known for his work in consumer law. He is the Director of Litigation for Atlas Consumer Law and has been designated as a Super Lawyer Rising Star by his peers.

About Atlas Consumer Law, a division of Sulaiman Law Group, Ltd.

Atlas Consumer Law, a division of Sulaiman Law Group Ltd., is a national consumer litigation firm in Lombard, Illinois that focuses on consumer litigation matters regarding the FDCPA, TCPA, FCRA, RESPA and other consumer fraud statutes. ( http://www.atlasconsumerlaw.com )View original content: http://www.prnewswire.com/news-releases/atlas-consumer-law-secures-3-582-000-jury-verdict-obtained-by-monette-saccameno-a-resident-of-cook-county-illinois-and-against-ocwen-loan-servicing-llc-a-national-mortgage-loan-servicer-300628541.html

SOURCE Atlas Consumer Law

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