May, 2018 | FORECLOSURE FRAUD | by DinSFLA

Archive | May, 2018

Here comes another global financial crisis …

Here comes another global financial crisis …

The Week-

Is another global financial crisis on the horizon?

Investors are increasingly worried that an escalating political crisisin Italy could lead to a populist, euroskeptic government taking power. As a result, there’s rising uncertainty about whether the country might eventually abandon the euro currency zone or default on its giant debt pile. To make things worse, the Trump administration continues to toy with the idea of a trade war with Europe and China. That would be the last thing the global economy would need if the Italian situation deteriorates further. Debt crises and trade wars are a toxic combination.

To fully understand the risk, it’s helpful to recall that before there was a Brexit, there was the threat of Grexit. There was widespread concern a few years ago that Greece’s government debt crisis would force it to exit the eurozone, and that such a shock departure would be a crushing blow to both the broader European economy, in the middle of recession, and the American economy, which was still recovering from its own downturn.

[THE WEEK]

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MTGLQ Investors, LP v. Brennan | Hawaii ICA –  MTGLQ concedes that there is no evidence of record of the original plaintiff (BOA’s) standing as holder of the original Promissory Note when the complaint for foreclosure was filed…. VACATED

MTGLQ Investors, LP v. Brennan | Hawaii ICA – MTGLQ concedes that there is no evidence of record of the original plaintiff (BOA’s) standing as holder of the original Promissory Note when the complaint for foreclosure was filed…. VACATED

h/t Dubin Law Offices

034935589 by DinSFLA on Scribd

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JPMorgan Chase Bank v. Rundgren | Hawaii ICA – VACATED! genuine material fact as to whether JP Morgan Chase was entitled to enforce the subject Note at the time this foreclosure action was commenced

JPMorgan Chase Bank v. Rundgren | Hawaii ICA – VACATED! genuine material fact as to whether JP Morgan Chase was entitled to enforce the subject Note at the time this foreclosure action was commenced

Via DUBIN LAW OFFICES

034937431 by DinSFLA on Scribd

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FANNIE MAE v AMARAL |  HAWAII ICA – Here OneWest did not attach the Note to its Complaint and the Declariation fails to establish, or even mention that OneWest possessed the Note at time it filed its Complaint … Order & Judgment VACATED!

FANNIE MAE v AMARAL | HAWAII ICA – Here OneWest did not attach the Note to its Complaint and the Declariation fails to establish, or even mention that OneWest possessed the Note at time it filed its Complaint … Order & Judgment VACATED!

Congratulations to DUBIN LAW OFFICES

034924951 (1) by DinSFLA on Scribd

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Congress Amends Eight Consumer Statutes | NCLC Digital Library

Congress Amends Eight Consumer Statutes | NCLC Digital Library

H/T Gary Dubin

DIRECT LINK – https://library.nclc.org/congress-amends-eight-consumer-statutes#content-0

The President on May 24 signed Public Law 115-174 that amends the Dodd-Frank Act to provide many depositories relief from federal supervision and regulation. The Act also makes a number of changes to legislation providing consumer rights. While many of the changes relate to the Truth in Lending Act or the Fair Credit Reporting Act, at least eight consumer statutes are implicated, affecting consumer rights involving:

  • • Tenants in foreclosed property;
  • • Former military personnel facing foreclosures;
  • • Private student loan borrowers and their co-signers;
  • • Manufactured home credit;
  • • Mortgage loan originations;
  • • Refinancing of VA mortgage loans;
  • • Security freezes, fraud alerts and credit monitoring;
  • • Credit reporting of veterans’ medical debt;
  • • PACE loans;
  • • HMDA disclosures.

While titled the “Economic Growth, Regulatory Relief, and Consumer Protection Act,” the Act is generally called “the Crapo bill” after its lead sponsor, Republican Senator Mike Crapo of Idaho. With a few exceptions discussed below, the changes either carve out exceptions from compliance with consumer statutes or codify consumer protections that at least certain industry players are already following on their own.

Tenant Protections After Foreclosure of Landlord’s Property

Effective June 23, 2018, section 304 of Public Law No. 115-174 restores and revives the Protecting Tenants at Foreclosure Act, Public Law No. 111-22, that had sunset at the end of 2014. The 2018 legislation once again gives tenants legal protection when the landlord’s building is foreclosed.

Tenants can remain in their units for the remainder of their leases despite the building’s foreclosure, unless the buyer at the foreclosure sale intends to occupy the unit as a primary residence. All tenants including those without leases have a right to 90 days’ notice before eviction. For a more detailed discussion of the Protecting Tenants at Foreclosure Act that has now been restored, see NCLC’s Foreclosures and Mortgage Servicing § 12.7.1.1.

Servicemembers’ Protection from Foreclosure

The Servicemembers Civil Relief Act, 50 U.S.C. § 3953(c), provides protections from foreclosure for covered personnel where their residential mortgage loans were extended prior to their active duty. Originally this protection extended for only 90 days after the person left military service, but this period was extended to nine months and later to one year, but with a sunset at the end of 2017. Section 313 of Public Law No. 115-174 restores the one-year period and eliminates the sunset, making the one-year period permanent. See NCLC’s Foreclosures and Mortgage Servicing § 8.11 for a general discussion of protections from foreclosure under the Servicemembers Civil Relief Act.

Credit Reporting Security Freezes and Fraud Alerts

Section 301 of Public Law No. 115-174 amends the Fair Credit Reporting Act, effective September 21, 2018, to establish a new federal right for consumers to implement a security freeze of their credit file. (A security freeze prevents users from accessing a credit file, with a number of exceptions.) The legislation also preempts state security freeze laws and extends initial fraud alerts from 90 days to one year. (A fraud alert notifies the users that the consumer has been or may become a victim of fraud or identity thief.)

The legislation adds new 15 U.S.C. § 1681c-1(i), which establishes standards for the creation, temporary lifting or “thaw,” and permanent removal of security freezes from the nationwide consumer reporting agencies as defined in section 1681a(p). The freezes are free of charge. They are essentially limited to parties seeking the consumer’s information for credit purposes.

The freeze does not apply to parties who want the report for employment, insurance, or tenant-screening purposes. It also does not apply to existing creditors or their agents or assignees conducting an account review, collecting on a financial obligation owed them, or seeking to extend a “firm offer of credit” (i.e., prescreening).

New section 1681c-1(i) also governs notices and disclosures concerning security freezes. Finally, the legislation adds new section 1681c-1(j), which sets standards where a representative of a minor or incapacitated individual seeks to freeze the individual’s consumer report.

The legislation’s preemption extends to any state requirement or prohibition with respect to subject matter regulated by the above provisions relating to security freezes. For example, some state statutes are stronger than the new federal standards by allowing consumers to freeze access to credit reports for employment or insurance purposes. For more on security freezes and state laws that are now preempted, see NCLC’s Fair Credit Reporting § 9.4.4 and Appendix H.

Credit Reporting of Veterans’ Medical Debt

Section 302 of Public Law No. 115-174 amends the Fair Credit Reporting Act, effective May 24, 2019, to provide credit reporting protections for veterans regarding certain medical debts. These include debts owed to a non-VA medical provider for medical care authorized by the VA and where the provider sought payment from the VA, as well as medical debt for bills wrongfully charged by the VA.

In general, a nationwide consumer reporting agency shall not report this type of veterans’ medical debt until the debt is over one year old. The legislation also sets out a process whereby the veteran can dispute medical debt in the veteran’s credit report and requires the VA to establish a database to enable the CRAs to verify veteran’s medical debt. For more on restrictions involving the credit reporting of medical debt, see NCLC’s Fair Credit Reporting § 5.4.

Free Credit Monitoring to Consumers on Active Duty or the National Guard

Section 302 of Public Law No. 115-174 amends the Fair Credit Reporting Act, effective May 24, 2019, to provide free “credit monitoring” to any military personnel on active duty or in the national guard. The credit monitoring as defined by section 302 is much more limited than the commercial products currently available, in that it only requires electronic notifications of additions or modifications to a consumer’s file, i.e., “alerts.” There is no private remedy for violation of this requirement. For a discussion of other credit monitoring products, see NCLC’s Fair Credit Reporting § 3.3.3.1.

Protections for Borrowers of Private Student Loans

Section 601 of Public Law No. 115-174 amends the Truth in Lending Act by prohibiting a private student loan lender from declaring a default or accelerating a debt against a student loan borrower on the basis of the co-signer’s bankruptcy or death. A second provision releases the co-signer’s obligation upon the student’s death.

These protections only apply to loans extended after November 20, 2018. In addition, the protections do not apply to private student loans consolidating other private student loans or to spouse co-signers where the spouse’s signature is needed to perfect the security interest in a loan. For more on private student loans, see NCLC’s Student Loan Law Ch. 12.

Section 602 of Public Law No. 115-174 amends the Fair Credit Reporting Act to allow a student, when successfully completing a loan rehabilitation program, to request that negative credit reporting information about a private student loan be excluded from the consumer’s report. A loan rehabilitation program is one where the student makes a number of consecutive on-time payments on the loan.

A private student loan lender is not required to offer a loan rehabilitation program, the legislation does not provide specific standards for such a program, and the lender apparently is not even required to help remove the default in the student’s credit file even when the student completes the program and requests the changes in the student’s credit report.

The rehabilitation program adds an additional risk for students. Where the student begins making payments under such a program after the statute of limitations has run on the private student loan, the payments may revive the limitations period, suddenly subjecting the student to a collection lawsuit. For a discussion of loan rehabilitation for Federal Direct Loans, see NCLC’s Student Loan Law § 7.3.

Exemption for Manufactured Home Dealers from Loan Originator Compensation Protections

Section 107 of Public Law No. 115-174 amends the Truth in Lending Act by excluding most manufactured home dealers from TILA’s definition of a “mortgage originator.” As a result, the dealers do not have to comply with the Truth in Lending Act’s loan originator compensation provisions, including a prohibition on receiving compensation based on the terms of a loan (other than the loan’s size). See NCLC’s Truth in Lending § 9.3.2.

To be excluded from the definition of a mortgage originator, the manufactured home dealer must not receive direct compensation in an amount greater than the dealer would have received in a cash transaction. The dealer must also disclose its affiliation with a lender and must not directly negotiate loan terms. Nevertheless, because of the complex interrelationship between manufactured home dealers and financers, this provision significantly weakens consumer protections.

Exemption from the Truth in Lending Act’s Ability-to-Pay Requirements

Section 101 of Public Law No. 115-174 expands the presumption of compliance (known as the “Qualified Mortgage”) with the Truth in Lending Act’s requirement that a creditor make a reasonable and good faith determination that the consumer has a reasonable ability to repay the mortgage loan, including taxes and insurance. See 15 U.S.C. § 1639c(a). The specifics of the ability-to-pay requirement are delineated by CFPB regulations. See generally NCLC’s Truth in Lending § 9.3.3. The provision codifies aspects of the existing regulation while increasing the asset threshold for eligible institutions to those with assets below $10 billion.

To qualify for the exclusion, the creditor must comply with limitations on prepayment penalties and the size of points and fees, not include negative amortization or interest-only features, and must verify the debt, income, and financial resources of the consumer (although no specific debt-to-income ratio must be met). Even then, there are restrictions on the subsequent sale of that mortgage loan.

Exemptions from the Truth in Lending Act’s Escrow Requirements

Section 108 of Public Law No. 115-174 creates new exemptions from the Truth in Lending Act’s escrow provisions for higher priced mortgage loans. The Truth in Lending Act requires creditors to establish escrow accounts for most such higher priced mortgages. See 15 U.S.C. § 1639d(a). The new Act requires the CFPB to exempt by regulation from this requirement any insured depository institutions or credit union with assets of $10 billion or less, that has extended fewer than 1000 first mortgages on a principle residence, and that meets three additional requirements, including having made at least one mortgage loan in a rural area. Apparently, this exemption will not go into effect until the CFPB issues the required final regulations. For more on escrow requirements for higher priced mortgages, see generally NCLC’s Truth in Lending § 9.5.4.5.

Limit on the Truth in Lending Act’s Timing Requirement for Additional High-Cost Mortgage Disclosures

Section 109 of Public Law No. 115-174 limits the Truth in Lending Act’s timing requirement for certain additional high-cost mortgage disclosures. 15 U.S.C. § 1639(b) requires the disclosures be made at least three business days prior to the mortgage loan consummation. The new Act provides that where the creditor makes a second offer of a mortgage loan, there is no longer a requirement that there be a three-day waiting period after the additional high-cost mortgage disclosures for the second offer if the second offer has a lower APR than the first offer. The timing rule still applies to the first offer, whatever the APR of the second offer. The disclosures for high cost mortgages are discussed at NCLC’s Truth in Lending § 9.6.6.

Limits on Abusive Refinancing of Loans to Veterans

Section 309 of Public Law No. 115-174 amends the veterans’ housing benefit legislation to address abuses dealing with creditors flipping veterans into refinanced loans that may not benefit the veteran. A specified time period must have elapsed since the prior loan before there can be a refinancing, and there are various requirements as to fee recoupment, interest rates, and net tangible benefit tests. This provision applies to VA, FHA, and RHS loans.

Exemption from Real Estate Appraisal Requirement

Section 103 of Public Law No. 115-174 amends Title XI of the Financial Institutions, Reform, Recovery and Enforcement Act (FIRREA), 12 U.S.C. § 3331, to exempt mortgage loans in rural areas with a balance of under $400,000 from the requirement that there be an appraisal of the real estate collateral before most mortgage loans can be extended. The new exemption applies to mortgages where no appraiser is reasonably available, and certain other conditions are met. Even then, the exclusion does not apply to HOEPA loans and there are limits on the sale of mortgages covered by the exclusion.

Softening SAFE Mortgage Licensing Act Requirements

Section 106 of Public Law No. 115-174 amends the SAFE Mortgage Licensing Act, effective November 24, 2019, by loosening licensing, registration, and similar requirements on loan originators. Originators that meet specified requirements can continue temporarily to originate loans under their old authority after moving from a depository institution to a non-depository institution or from one state to another. The new Act also widens the conduct by state officials and officers of the Nationwide Mortgage Licensing System and Registry that is immune from monetary liability

PACE Loans

Recent years have witnessed extensive abuses involving Property Assessed Clean Energy (PACE) Financing. (Extensive material on PACE loans is found at www.nclc.org/issues/pace-loans.html.) PACE loans are extended to homeowners to pay for private, largely unregulated companies to make home repairs to the homeowners’ residences, with the promise that the repairs will increase the homes’ energy efficiency. The loans are repaid via a local property tax assessment whose non-payment can result in the home’s foreclosure or tax sale.

Section 307 of Public Law No. 115-174 amends the Truth in Lending Act to require the CFPB to issue regulations to apply the existing TILA ability-to-pay standards found in 15 U.S.C. § 1639c(a) to PACE loans, and to require that any violations of the regulations are privately enforceable under the Truth in Lending Act remedy provision, 15 U.S.C. § 1640. The specifics of the TILA ability-to-pay requirement are delineated at NCLC’s Truth in Lending § 9.3.3.

Exemption from HMDA Reporting

Section 104 of Public Law No. 115-174 amends the Home Mortgage Disclosure Act (HMDA). The amendment exempts certain entities from specified public disclosure requirements. Insured depository institutions and credit unions that extended fewer than 500 closed-end mortgage loans in each of the prior two years are exempted from specified closed-end disclosure requirements. Insured depository institutions and credit unions that extended fewer than 500 open-end mortgage loans in each of the prior two years are exempted from specified open-end disclosure requirements. Neither exemption applies if during the last two years, the institution received “a needs to improve” record for meeting community needs.

These institutions must still make public all the HMDA required information except for disclosures specified in 12 U.S.C. § 2803(b)(5) and (6) having to do with the number and dollar amount of loans itemized according to: origination points and fees, APRs, prepayment penalties, property values, term of introductory rates, negative amortization, the loan term, use of a broker, the loan originator, applicant credit scores, and identifiers relating to the loan and parcel. HMDA disclosures are examined at NCLC’s Credit Discrimination § 4.4.5.2.

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Randall v. DITECH FINANCIAL, LLC | CA 4th Appellate Dist., 1st Div. – we conclude the complaint adequately stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6) of the FDCPA, we conclude the complaint can also be amended to state a claim under the UCL and the court should permit Randall an opportunity to do so.

Randall v. DITECH FINANCIAL, LLC | CA 4th Appellate Dist., 1st Div. – we conclude the complaint adequately stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6) of the FDCPA, we conclude the complaint can also be amended to state a claim under the UCL and the court should permit Randall an opportunity to do so.

 

D.C. RANDALL, JR., Plaintiff and Appellant,
v.
DITECH FINANCIAL, LLC, Defendant and Respondent.

No. D072142.
Court of Appeals of California, Fourth District, Division One.
Filed May 24, 2018.
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. 37-2016-00014205-CU-OR-CTL, Joel M. Pressman, Judge. Reversed and remanded with directions.

Legal Aid Society of San Diego, Inc., Alysson Snow and Kathleen Box for Plaintiff and Appellant.

Locke Lord and Regina J. McClendon for Defendant and Respondent.

CERTIFIED FOR PUBLICATION

McCONNELL, P.J.

I

INTRODUCTION

D.C. Randall, Jr., appeals from a judgment dismissing his operative second amended complaint (complaint) against Ditech Financial, LLC (Ditech) after the trial court sustained Ditech’s demurrer to the complaint without leave to amend. Randall contends the court erred in its ruling as to his causes of action for violation of the federal Fair Debt Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et seq.)[1] and for violation of the state unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.) because these causes of action stated or can be amended to state viable claims.

We conclude the complaint stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6). Consequently, the complaint can also be amended to state a claim under the UCL. We therefore reverse the judgment and remand the matter to the court with directions to conduct further proceedings consistent with this decision.

II

BACKGROUND

A

According to the allegations in the complaint, which we must accept as true for purposes of this appeal (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924), Ditech is a loan servicer and attempts to collect debts on behalf of itself and others in the regular and ordinary course of its business. Ditech services a loan secured by a deed of trust on Randall’s home. Ditech began servicing the loan after Randall had defaulted on the loan.

Following Randall’s default, the trustee recorded a notice of default with intent to sell. Approximately two years later, the trustee recorded a notice of trustee’s sale, scheduling Randall’s home for public auction 21 days later. Randall subsequently received notice the foreclosure sale was postponed for 37 days.

Meanwhile, Ditech advised Randall of the necessary payments to reinstate his mortgage, which included improper fees and charges. Thirty-nine days prior to the foreclosure sale, Randall paid Ditech $20,664.36 in three installments. Ditech accepted the payments, but did not cancel the foreclosure sale.

Randall contacted Ditech multiple times about the foreclosure sale and his mortgage reinstatement. He also enlisted the help of a real estate agent, who called Ditech eight times in the month preceding the foreclosure sale. Two weeks before the foreclosure sale, the real estate agent sent Ditech a written “notice of error” regarding Ditech’s failure to cancel the sale. Ditech never replied to the notice.

During a phone call one week before the foreclosure sale, a Ditech representative stated Randall should be current on his mortgage and the foreclosure sale should be cancelled. Although the representative stated Randall would receive a return phone call later that day regarding the foreclosure sale, the phone call never came.

The next business day, Randall contacted Ditech again. The representative he spoke with stated she had no knowledge of the foreclosure sale and could not confirm its cancellation. The representative also refused to provide Randall with his current loan balance. She told him his account needed to be audited before she could provide him with the information. The same day, the trustee informed Randall that Ditech had neither cancelled the foreclosure sale nor communicated anything to the trustee about the reinstatement of Randall’s loan.

Three days later and one day before the foreclosure sale, Randall filed the instant action. The next day—the day of the scheduled foreclosure sale and 39 days after Randall reinstated his loan—Ditech rescinded the notice of default and cancelled the foreclosure sale.

B

The complaint asserted causes of action for negligence and for violating the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), the Unruh Civil Rights Act (Civ. Code, § 51 et seq.), the Elder and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), California foreclosure law, the FDCPA, the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.), and the UCL. Ditech demurred to the complaint, arguing the complaint did not state sufficient facts to constitute any viable causes of action.

The court found deficiencies in each cause of action and sustained Ditech’s demurrer without leave to amend.[2] As relevant to this appeal, the court found the FDCPA cause of action was incurably deficient because the code section referenced in it, section 1692f(1), does not apply to nonjudicial foreclosure activity and Randall’s allegations of overpaying to reinstate his loan were not sufficiently specific. The court found the UCL cause of action was incurably deficient because “there is no underlying wrongdoing alleged.”

III

DISCUSSION

“The standards for reviewing a judgment of dismissal following the sustaining of a demurrer without leave to amend are well settled. `”`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the [complaint] states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.”‘” (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252.)

A

Under the FDCPA, “[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt.” (§ 1692f.) “`To state a claim for violation of the FDCPA, a plaintiff must allege that the defendant is a “debt collector” collecting a “debt.”‘ [Citation.]” (Izenberg v. ETS Servs., LLC (C.D.Cal. 2008) 589 F.Supp.2d 1193, 1199.)

1

The complaint alleged Ditech violated section 1692f(1) of the FDCPA, which prohibits “[t]he collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” For purposes of this section, “`debt collector'” includes a person or entity (1) engaged in “any business the principal purpose of which is the collection of any debts,” or (2) “who regularly collects or attempts to collect . . . debts owed or due . . . another.” (§ 1692a(6).) The term applies to a mortgage loan servicer if the servicer began servicing the mortgage loan after the loan was in default. (§ 1692a(6)(F)(iii); see Perry v. Stewart Title Co. (5th Cir. 1985) 756 F.2d 1197, 1208.)

Here, the complaint alleged Ditech “collects debts, either on behalf of itself or others, in the regular and ordinary course of business.” The complaint also alleged Ditech began servicing Randall’s mortgage loan after the loan was in default. The complaint, therefore, adequately alleged Ditech was a debt collector for purposes of section 1692f(1).

2

The complaint further alleged Ditech engaged in three types of unlawful debt collection activity. Specifically, Ditech failed to halt nonjudicial foreclosure activity after Randall paid to reinstate his loan, Ditech required Randall to pay a reinstatement amount that was inconsistent with the amount of the payments Randall had missed and included improper fees and charges, and Ditech continued to charge Randall default fees and costs after Randall reinstated his loan.

A “`debt'” for purposes of section 1692f(1) is an obligation of a consumer to pay money. (§ 1692a(5); Vien-Phuong Thi Ho v. ReconTrust Company, NA (9th Cir. 2017) 858 F.3d 568, 572.) “[T]he object of non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower.” (Ho, supra, at p. 571.) “Thus, actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect `debt'” and are not actionable under section 1692f(1). (Ho, supra, at p. 572; Dowers v. Nationstar Mortgage, LLC (9th Cir. 2017) 852 F.3d 964, 969-970 (Dowers).)

However, overcharging Randall to reinstate his loan and charging default fees and costs for a loan that is not in default are attempts to collect money and, consequently, are actionable under section 1692f(1). Although Ditech asserts Randall’s allegations on these points were not sufficiently specific, the particularity required of a pleading varies given the parties’ relative knowledge of the facts in issue. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) “[L]ess particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff.” (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 474.) Ultimately, the complaint is sufficient if “`the adversary has been fairly apprised of the factual basis of the claim against him.'” (Semole, supra, at p. 721, quoting Jones v. Oxnard School Dist.(1969) 270 Cal.App.2d 587, 593.) Ditech is in at least as good a position as Randall to know how much Ditech charged him to reinstate his loan, how much Ditech charged him between when he reinstated his loan and when Ditech rescinded the notice of default, and the bases for the charges. Accordingly, we conclude Randall sufficiently pleaded an FDCPA cause of action for violation of section 1692f(1), and the court erred in sustaining Ditech’s demurrer to the cause of action.

3

For the first time on appeal, Randall contends he can amend his complaint to also state an actionable claim under section 1692f(6) of the FDCPA for Ditech’s nonjudicial foreclosure activity. Section 1692f prohibits “[t]aking or threatening to take any non-judicial action to effect dispossession or displacement of property” when the debt collector has no intention of taking possession of the property, or holds “no present right to possession of the property claimed as collateral through an enforceable security interest.” Mortgage loan servicers, as enforcers of security interests, fall within the definition of “`debt collectors'” for the purposes of section 1692f(6). (Dowers, supra, 852 F.3d at p. 969; see § 1692(a)(6) [authorizing the application of § 1692(f)(6) to “any business the principal purpose of which is the enforcement of security interests”].) Since Randall has demonstrated he can allege Ditech refused to halt its nonjudicial foreclosure activity until well after he reinstated his loan and then only after he filed the instant action, he has demonstrated he can amend his complaint to state an actionable claim under section 1692f(6) and the court should permit him an opportunity to do so.

B

“The UCL prohibits, and provides civil remedies for, `unfair competition,’ which includes `any unlawful, unfair or fraudulent business act or practice.’ (Bus. & Prof. Code, § 17200.)” (Candelore v. Tinder, Inc. (2018) 19 Cal.App.5th 1138, 1155 (Candelore).) “The UCL’s `unlawful’ prong `borrows violations of other laws . . . and makes those unlawful practices actionable under the UCL.’ [Citation.] `”[V]irtually any law or regulation—federal or state, statutory or common law—can serve as [a] predicate for [an] . . . `unlawful’ [prong] violation.”‘” (Ibid.)

In this case, the complaint did not allege the FDCPA violations as predicates for the UCL cause of action. However, because we conclude the complaint adequately stated a claim under section 1692f(1) of the FDCPA and can be amended to state a claim under section 1692f(6) of the FDCPA, we conclude the complaint can also be amended to state a claim under the UCL and the court should permit Randall an opportunity to do so. (Candelore, supra, 19 Cal.App.5th at p. 1155.)

IV

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court for further proceedings consistent with this opinion. Randall is awarded his appeal costs.

NARES, J. and GUERRERO, J., concurs.

[1] Further statutory references are to this title of the United States Code unless otherwise specified.

[2] Ditech had previously demurred to Randall’s original and first amended complaints. Both of the complaints asserted a UCL cause of action, but neither asserted an FDCPA cause of action. The record does not show the court ruled on Ditech’s demurrer to the original complaint, presumably because Randall filed the first amended complaint beforehand. The court sustained Ditech’s demurrer to the first amended complaint with leave to amend.

 

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TFH 5/27/18 | Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

TFH 5/27/18 | Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

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Sunday – May 27, 2018

.

 ———————
Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

 

 

 

—————————-

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

On prior shows we have discussed how the statute of limitations, which sets a time bar controlling how long litigants have to sue on their claims in court, should be and is being applied to mortgage loans (Listen to the January 31, 2016 Foreclosure Hour, Past Broadcasts, www.foreclosurehour.com).

Once again, the treatment of homeowners is shown to differ when compared to how the statute of limitations is applied in other contract actions.

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

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

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

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

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

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

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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How the banking rule rollback will affect your mortgage, credit and more

How the banking rule rollback will affect your mortgage, credit and more

CNBC-

Legislation that eases banking regulations — and modifies rules governing credit reports and some consumer loans — was signed into law by President Donald Trump on Thursday.

The bill, which was approved by the Senate in March, passed the House on Tuesday by a vote of 258 to 159.

The measure rolls back some of the regulations imposed by the Dodd-Frank Act of 2010. That legislation came on the heels of the financial meltdown that rocked the U.S. economy a decade ago, when risky and unaffordable mortgages contributed to millions of homeowners losing their houses to foreclosure.

[CNBC]

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Calif. homeowners sue Utah mortgage servicer over foreclosures

Calif. homeowners sue Utah mortgage servicer over foreclosures

Reuters-

A Utah-based national mortgage servicer has been hit with a proposed class action accusing it of failing to help struggling California homeowners avoid foreclosure, violating a state consumer protection law.

Filed on Wednesday in Los Angeles federal court, the lawsuit said Select Portfolio Servicing denied homeowners’ applications for mortgage assistance without properly reviewing them or working with homeowners to find alternatives to foreclosure.

[REUTERS]

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Congress approves plan to roll back post-financial-crisis rules for banks

Congress approves plan to roll back post-financial-crisis rules for banks

Washington Post-

The House on Tuesday passed a plan to roll back banking regulations passed in response to the 2008 financial crisis, sending the bill to President Trump to sign.

The measure leaves the central structure of the post-financial-crisis rules in place, but it would make the most significant changes to weaken the Dodd-Frank banking regulations since they were passed in 2010. It would exempt some small and regional banks from the most stringent regulations, and also would also loosen rules aimed at protecting the biggest banks from sudden collapse.

The measure is nearly certain to become law after its passing in the House, 258 to 159, on Tuesday with nearly all House Republicans and 33 Democrats voting for it. The Senate approved the bill in March with bipartisan backing, and White House officials said that Trump plans to sign it in the coming days.

[WASHINGTON POST]

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Blue Mountain Homes, LLC v. Page | HAWAII ICA – Defining a non-bonafide third party purchaser

Blue Mountain Homes, LLC v. Page | HAWAII ICA – Defining a non-bonafide third party purchaser

h/t DUBIN LAW OFFICES

034873322 by DinSFLA on Scribd

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USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., |  FANNIE MAE (FNMA) Attorney Network Agreements

USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., | FANNIE MAE (FNMA) Attorney Network Agreements

Fannie 1998 Law Firm Agrmt by DinSFLA on Scribd

Fannie 2013 Law Firm Retention Agreement by DinSFLA on Scribd

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USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., |  Rosicki’s argue FNMA knew about the marked up expenses and did not care.  Bank of America argues it does not matter and this pleading by the Govt discloses many of the shenanigans taking place between Fannie Mae and loan servicers (notably Bank of America)

USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., | Rosicki’s argue FNMA knew about the marked up expenses and did not care. Bank of America argues it does not matter and this pleading by the Govt discloses many of the shenanigans taking place between Fannie Mae and loan servicers (notably Bank of America)

Rosicki Opposition to Motion to Dismiss (1) by DinSFLA on Scribd

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TFH 5/20/2018 | Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special  Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

TFH 5/20/2018 | Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

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 – May 20, 2018

.

 ———————
Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

 

 

 

—————————-

Three Sundays ago The Foreclosure Hour informed our listeners of the tragic story of Dr. Amanda Tucker, whose entire life savings, consisting of millions of dollars in real estate equity, was stolen from her because of antiquated judge-made common law deficiency judgment procedures still being inflicted today upon homeowners in many jurisdictions.

And that forfeiture occurred despite the earlier sworn testimony in Court of Dr. Tucker’s Banker that she was not even in default on her jumbo loans when she was sued for foreclosure.

For those listeners who missed that eye-opening broadcast, you will not only find the recording of the recent April 29, 2018 show featuring Dr. Tucker’s ordeal in the Past Broadcast Section of our Website at www.foreclosurehour.com, but we have also posted a convenient link there to our original February 2, 2014 broadcast featuring as our special guests not only Dr. Tucker, calling in live, but also her Banker, Clyde Engle on the telephone, at the time of her foreclosure summary judgment.

Then last Sunday, we aired the equally tragic story of Teresa Moore, whose hard money lender, John Spadaro, bid $100 at an AOAO judicial foreclosure, purchasing the property that was his collateral for her loan, arguably worth potentially even more than the amount of her mortgage debt, but who, not crediting her with the fair value of that loan collateral, proceeded to foreclosure judicially on her and on himself (!) by first transferring his title to a shell LLC of his without the knowledge of his foreclosure Judge, then securing an unjust enrichment deficiency judgment against her in addition to owning, renting out the property for years, and selling it after a second foreclosure, this time by him.

As pointed out in last week’s show, John Spadaro is one of many hard money lenders circling over vulnerable borrowers in every State, for better or worse, but hardly the worst of them all, being nevertheless encouraged to take advantage of vulnerable homeowners facing foreclosure due to traditional deficiency judgment procedures still prevalent in some States, what amounts to State-sponsored theft.

Mr. Spadaro called with numerous objections immediately after last Sunday’s show, and was invited to appear on this Sunday’s show or to provide a written statement to be read on today’s show, but has refused, instead providing The Foreclosure Hour with a series of emails vigorously disputing how he was portrayed.

On today’s show, to be fair, his objections in his absence will be summarized for our listeners.

Last Sunday’s show experienced technical difficulties at the studio during the first few minutes of the broadcast. As a result, we are repeating last Sunday’s show on the hour immediately following our regular broadcast today.

On the first hour today we will complete our examination of foreclosure deficiency procedures and the many issues involved in both the traditional and majority views by reporting on our research in all 50 States.

Most States today, at least 29 in number, have rejected traditional, mathematically-derived judicial foreclosure deficiency judgments based on subtracting net sale proceeds from amounts owed as inequitable, some even changing the procedures by judicial decision making pursuant to their equity jurisdiction where their legislatures have historically failed to act, in favor of fair (sometimes called true) value approaches crediting homeowners foreclosed on with the market value of foreclosed property at time of a confirmed auction sale.

Listeners will be interested to learn of the judicial foreclosure deficiency approach used in their individual jurisdiction.

Do you reside, for instance, in one of the four states whose judiciary still clings to the traditional common law view?

John Waihee and I hope you will listen in and join the Homeowners SuperPAC and help us put an end to unconscionable deficiency judgment abuses, the only basis for which, quoting Judge Oliver Wendell Holmes, is that “it was laid down in the time of Henry IV.”

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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Posted in STOP FORECLOSURE FRAUD0 Comments

Gov’t Fights Foreclosure Law Firm’s Bid To Ax FCA Claims

Gov’t Fights Foreclosure Law Firm’s Bid To Ax FCA Claims

LAW360-

The government on Monday defended its False Claims Act claims against New York mortgage foreclosure law firm Rosicki Rosicki & Associates PC and two related companies over allegations that they caused Fannie Mae to pay millions of dollars in reimbursement claims for fraudulently inflated foreclosure expenses.

U.S. attorneys told a New York federal court that contrary to a recent dismissal motion against it, the government has the full authority to bring claims on behalf of Fannie Mae and has pled with sufficient particularity that Rosicki, through…

[LAW360]

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Wells Fargo altered documents about business clients

Wells Fargo altered documents about business clients

CNN-

Wells Fargo recently discovered that some workers altered documents about business customers, raising new concerns about the embattled bank’s internal system of checks-and-balances.

The improper activity took place in 2017 and early 2018 and was brought to light by multiple Wells Fargo (WFC) employees who alerted management, a person familiar with the matter told CNNMoney.

The document altering happened in Wells Fargo’s business banking group, which caters to medium-sized businesses with annual sales of $5 million to $20 million.

[CNN]

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TURAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default

TURAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default

 

JOHN S. TURAN AND MERCEDES TURAN, Appellants,
v.
NATIONSTAR MORTGAGE, LLC, RAINBOW SPRINGS PROPERTY OWNERS ASSOCIATION, INC., PROGRESSIVE INSURANCE COMPANY, AS SUBROGEE OF DONNA VEZINA, ET AL., Appellees.

Case No. 5D17-215.
District Court of Appeal of Florida, Fifth District.
Opinion filed April 27, 2018.
Appeal from the Circuit Court for Marion County, S. Sue Robbins, Judge.

Mark P. Stopa, of Stopa Law Firm, LLC, Tampa; Latasha Scott, of Lord Scott, PLLC, of Tampa, for Appellants.

Charles P. Gufford, of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee, Nationstar Mortgage, LLC.

No Appearance for other Appellees.

PER CURIAM.

John and Mercedes Turan appeal from a final summary judgment of foreclosure in favor of Nationstar Mortgage, LLC, following the entry of a judicial default. We reverse.

After being served with Nationstar’s amended complaint, the Turans, through counsel, filed a motion to dismiss. After considering Nationstar’s response, the trial court denied the motion to dismiss, directing the Turans to “file an answer to the complaint within 10 days of the date of this order the failure of which may result in a judicial default being entered without further notice or hearing.” When the Turans failed to timely file their answer, the trial court entered a judicial default without a motion from Nationstar or notice to the Turans. Less than a week later, they filed their answer and affirmative defenses. After the trial court denied their motion to vacate the judicial default, a final summary judgment of foreclosure was entered in favor of Nationstar from which the Turans now appeal. As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default.” As a result, a trial court order that provides that a judicial default will be automatically entered in the absence of a timely answer is noncompliant with the rule. See Rangel v. MidFirst Bank, 187 So. 3d 289, 290-91 (Fla. 4th DCA 2016) (holding that trial court’s “self-executing” default language is not permitted under rule 1.500(c), which requires notice of application for default); accord Green Sols. Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696 (Fla. 5th DCA 2002) (stating once “any paper” has been served, rule 1.500(b) requires proper notice of default be given to opposing party, and court enter default). The judicial default was improvidently entered, hence, the final judgment based on that default must be set aside and this matter remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, EVANDER and LAMBERT, JJ., concur.

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

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JOHNSON vs DEUTSCHE BANK TRUST COMPANY |  FL 2DCA-  the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor

JOHNSON vs DEUTSCHE BANK TRUST COMPANY | FL 2DCA- the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor

 

KELI N. JOHNSON and THOMAS E. JOHNSON, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, as Trustee RALI 2007-QS1, Appellee.

Case No. 2D16-4262.
District Court of Appeal of Florida, Second District.
Opinion filed May 11, 2018.
Appeal from the Circuit Court for Polk County; Keith P. Spoto, Judge.

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

William L. Grimsley, Kimberly Held Israel, and N. Mark New, II, of McGlinchey Stafford, Jacksonville, for Appellee.

LUCAS, Judge.

Keli and Thomas Johnson appeal the circuit court’s entry of a final summary judgment against them in a residential mortgage foreclosure case brought by Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1 (RALI). They raise five arguments on appeal. We find merit within the fourth—that RALI failed to conclusively establish its standing to enforce the Johnsons’ promissory note—and reverse the summary judgment on that basis.

The Johnsons borrowed $236,000, apparently in connection with a home improvement construction loan, which was memorialized by a promissory note in that amount dated April 28, 2006. The Johnsons’ note was originally payable to National City Mortgage, a division of National City Bank of Indiana, and secured by a mortgage on the Johnsons’ property in Polk County, Florida. The promissory note contained three endorsements, the last of which made the note payable to “Deutsche Bank Trust Company Americas as Trustee,” with no further identifying information of which trust this entity was acting on behalf of.[1]

When the Johnsons allegedly defaulted on the note in 2011, RALI filed the underlying complaint. It later amended its complaint twice, so that in its final, operative iteration, RALI alleged it had standing to enforce the Johnsons’ note as a holder of the note. The Johnsons generally denied RALI’s allegations in their answer and asserted several affirmative defenses, including lack of standing on the part of RALI to enforce the note. RALI eventually filed the original note, which contained endorsements appearing to match those on the copy attached to its pleading.[2]

The case proceeded with itinerant discovery and motion practice, and on July 8, 2016, RALI filed a motion for summary judgment. In support of its motion, it also filed an affidavit signed by Sarah Greggerson, an employee of PNC Mortgage, an entity that purported to be servicing the Johnsons’ loan. It appears from the record that RALI relied upon PNC’s status as its servicer as a basis to establish RALI’s status as a holder of the Johnsons’ note (Ms. Greggerson’s affidavit was the only one filed in support of RALI’s motion for summary judgment). In our view, that was insufficient evidence of RALI’s standing for purposes of summary judgment in this case.

We review a summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)).

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”

Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008)). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)).

This court has held that in residential mortgage foreclosure cases, the plaintiff bears the burden of proving its standing at the time of trial and at the time it filed its complaint if the issue of standing is contested. See Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc); see also Winchel v. PennyMac Corp., 222 So. 3d 639, 642-43 (Fla. 2d DCA 2017) (noting the “legal oddity” that standing has become in residential foreclosure cases and summarizing, “[o]nce put at issue by a defendant, then, standing becomes a part of the prima facie case that a foreclosure plaintiff must prove in order to secure a judgment”). The summary judgment evidence regarding RALI’s standing—challenged, as it was, by the Johnsons’ affirmative defense—fell short of what was required for a summary adjudication.

Ms. Greggerson’s affidavit stated only that “Plaintiff has owned and held the Note since prior to the filing of the Complaint in this action.” The problem with that assertion, however, is that Ms. Greggerson was not affiliated in any way with the plaintiff, RALI. The limited facts stated in her affidavit failed to address how she derived this knowledge about RALI’s connection to the Johnsons’ note or how RALI became an owner or holder of the Johnsons’ note; and there was no claim within her affidavit that PNC was holding the Johnsons’ note on behalf of RALI. See, e.g., Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 180 (Fla. 2d DCA 2017)(finding testimony of “case manager” employed by servicer—who took over servicing after the filing of the lawsuit— was insufficient to establish ownership of the lost note because “Ms. Stevens had no personal knowledge about the Bank’s claim to have acquired ownership of the note in 2006. Moreover, Ms. Stevens’s testimony in this regard was not supported by the limited documentary evidence about the loan that was available. Because Ms. Stevens’s testimony was not based on personal knowledge and was not supported by any documentation, we conclude that the testimony was insufficient to establish the Bank’s ownership of the lost note.”); Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 3d 987, 988-89 (Fla. 2d DCA 2016) (holding that “the record in this case does not establish that Deutsche Bank had standing to foreclose at the time it filed its complaint” because its sole witness, an employee of its servicer, Wells Fargo, “was unable to provide any testimony as to Deutsche Bank’s acquisition of the note” and remarking that “[t]he only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint”); Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (finding second servicer’s representative’s testimony was insufficient to prove first servicer’s standing at time of inception of suit because “[t]hat testimony established at most that the first servicer was in fact servicing the mortgage when it filed suit, not that the first servicer held the note when it filed suit”); Jaffer v. Chase Home Fin. LLC, 92 So. 3d 240, 242 (Fla. 4th DCA 2012)(“Under [Florida Rule of Civil Procedure 1.510(e)], affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show `the affiant is competent to testify to the matters stated therein.'” (quoting Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932 (Fla. 4th DCA 2011))). And in this case, the documents attached to Ms. Greggerson’s affidavit did not dispel the question of this note’s ownership or who was the note’s holder such that there was not “the slightest doubt that an issue might exist” concerning RALI’s standing. See Atria Grp., 170 So. 3d at 886. Indeed, on this record, it is not even clear that PNC had the underlying authority to act as a servicer for RALI or to hold the Johnsons’ note on RALI’s behalf. Cf. Rosa, 191 So. 3d at 988 n.2 (noting that foreclosing plaintiff, Deutsche Bank, did not argue constructive possession of its note by its servicer, Wells Fargo, or that Wells Fargo was acting as Deutsche Bank’s agent that was authorized to hold the note on Deutsche Bank’s behalf (citing Phan v. Deutsche Bank Nat’l Tr. Co., 198 So. 3d 744 (Fla. 2d DCA 2016))). With respect to PNC’s authority, Ms. Greggerson’s affidavit stated only that “PNC is the mortgage servicer for the Plaintiff . . . for the mortgage loan account that is the subject of this litigation (the `Mortgage Loan’). A copy of the Power of Attorney from the Deutsche Bank Trust Company Americas, as Trustee to PNC is attached hereto as Exhibit `A.’ ” The limited power of attorney attached to her affidavit actually named Ocwen Loan Servicing, LLC, as RALI’s servicer, not PNC.[3]Having elected to rely solely on this affidavit and its attachments, RALI failed to meet its burden of proving there was no material issue of fact concerning RALI’s standing. We must, therefore, reverse the final summary judgment.

In so holding, we do not reach the remaining issues the Johnsons present; first, because we need not do so in order to resolve this appeal, but second, because we are hesitant to do so in a case where we have no transcript from the summary judgment hearing in our record. This latter point is one we believe merits some elucidation.

Some of the arguments raised by the Johnsons in this appeal, while perhaps meritorious, presented the very real potentiality that they were either unpreserved or even waived. To take one example, the first issue the Johnsons advanced in their briefing was that RALI should not have obtained a summary judgment premised upon a loan modification agreement that RALI had neither pleaded nor attached to its operative complaint. We can see from our record that the final summary judgment in this case was indeed based, in part, upon a loan modification agreement that was introduced through Ms. Greggerson’s affidavit. We can also see that that loan modification agreement was not mentioned anywhere within RALI’s second amended complaint or attached as an exhibit to that pleading. See Fla. R. Civ. P. 1.130(a) (“All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought . . . must be incorporated in or attached to the pleading.”); cf. Tracey v. Wells Fargo Bank, N.A., 43 Fla. L. Weekly D652b, D655b (Fla. 2d DCA Mar. 23, 2018) (holding that the trial court erred in permitting a foreclosing lender to amend its complaint to conform to the evidence at trial in order to recover on unpled loan modification agreements). What we cannot see is whether the Johnsons brought that pleading impropriety to the circuit court’s attention at any time prior to or during the summary judgment hearing. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So. 2d 579, 581 (Fla. 2d DCA 2004) (holding that employer’s failure to object to the sufficiency of employee’s administrative complaint’s verification during the administrative process “acted as a waiver of any objection” to the pleading’s sufficiency (citing Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991))); Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989) (“An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court’s determination.”). Were we to take up this argument, we would have to tacitly assume that the Johnsons had presented it below in the face of a record that is completely silent on that point.

Florida law calls upon appellate courts to provide a careful de novo scrutiny of summary judgment rulings, given what is at stake. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (observing that summary judgment “brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim”). In that spirit, we, along with our sister courts, have occasionally remarked that the lack of a transcript of a summary judgment hearing will not necessarily thwart an appellate review of a summary judgment. See, e.g., Kamin v. Fed. Nat’l Mortg. Ass’n, 230 So. 3d 546, 548 n.2 (Fla. 2d DCA 2017) (“[A] hearing transcript is usually `not necessary for appellate review of a summary judgment.'” (quoting Houk v. PennyMac Corp., 210 So. 3d 726, 730 (Fla. 2d DCA 2017))); Shahar v. Green Tree Servicing LLC, 125 So. 3d 251, 254 (Fla. 4th DCA 2013) (“[H]earing transcripts ordinarily are not necessary for appellate review of a summary judgment.”); Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958-59 (Fla. 3d DCA 2010) (holding that it was “not necessary to procure a transcript of the summary judgment hearing” where “the [summary judgment] evidence—in the form of the pleadings, [the defendant’s] affidavit, and the county records”—demonstrated that genuine issues of material fact remained (quoting Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998))).

But the context in which this observation arises is almost universally confined to appeals concerning the sufficiency of the summary judgment evidence before the trial court. See, e.g., Kamin, 230 So. 3d at 548Shahar, 125 So. 3d at 253-54Gonzalez, 37 So. 3d at 958-59. That was why in Houk, 210 So. 3d at 731, a case where we devoted a section of analysis to the absence of a summary judgment hearing transcript, we took care to point out that “in this case,” where the summary judgment evidence about enforcement of a lost note included “the operative complaint, . . . [the] answer and affirmative defenses, the motion and the order for substitution of the plaintiff, the amended motion for summary judgment, and the supporting and opposing affidavits, including the affidavit of lost note,” we had “all of the portions of the record necessary for us to determine whether the summary judgment was properly entered.” “Under these circumstances,” we concluded, a hearing transcript would provide no further insight about the evidentiary record’s sufficiency. Id. These kinds of pronouncements, issued within case-specific, de novo reviews of evidentiary records, should not be read to the neglect of securing court reporters to transcribe summary judgment hearings. To the contrary, presenting an adequate record—one that demonstrates not only what evidence was presented below but also which arguments were preserved—remains the appellant’s burden in an appeal of a summary judgment. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court.” (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Cagwin v. Thrifty Rents, Inc., 219 So. 3d 1003, 1004 (Fla. 2d DCA 2017) (discussing appellant’s argument that the affiant who executed a summary judgment affidavit did not have sufficient knowledge to attest to the matters in the affidavit but concluding “we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript” (citing Zarate v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012))); Black Point Assets, Inc. v. Fed. Nat’l Mortg. Ass’n, 220 So. 3d 566, 567 (Fla. 5th DCA 2017) (addressing the sufficiency of a complaint and summary judgment evidence to establish foreclosure and noting “Black Point’s additional objections to the summary judgment were not preserved for appeal”); Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) (“Any basis for reversal of summary judgment must be preserved by raising the issue in the trial court.”).

All of which is to say, the de novo review that we employ for summary judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were fundamental error. Cf. Coba v. Tricam Indus., Inc., 164 So. 3d 637, 646 (Fla. 2015)(“[I]n civil cases, reversal based on the concept of `fundamental error’ where a timely objection has not been made is exceedingly rare.”). So while a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved. We reiterate, then, what we stated in Houk: while it might not be necessary to procure a transcript from a summary judgment hearing in every case, it is indeed “often helpful to do so,” id. at 731 (quoting Seal Prods., 705 So. 2d at 975), especially in cases where preservation of a legal argument might otherwise be in question.

Here, however, we are satisfied that the record we do have reflects a genuine issue of material fact that was argued below. RALI’s standing was a contested point almost from the beginning of this litigation, and the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor. For that reason, we reverse the circuit court’s final summary judgment and remand this case for further proceedings.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.

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

[1] Independently of the endorsements, RALI also filed a series of assignments, which it maintained established its standing as an owner and a holder of the Johnsons’ note. These assignments would not establish RALI’s standing for purposes of summary judgment, however, because the final assignment in the series only purported to assign the Johnsons’ mortgage to RALI, not the note itself. See, e.g., Houk v. PennyMac Corp., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff “did not acquire standing to foreclose based on an assignment of only the mortgage”); Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) (“[A]ssignment was insufficient to show standing because it only purported to assign the mortgage, not the note.”); Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”). RALI’s second amended complaint asserts its standing solely on the theory that it was the holder of the Johnsons’ note.

[2] RALI has not argued, either below or in this appeal, that it was entitled to an inference of possession of the note at the time the complaint was filed under Ortiz v. PNC Bank, National Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (“[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.”). Moreover, the trial court never made a finding upon which we could conclude that the Ortiz inference would have been applicable. See, e.g., Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) (“[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue.”).

[3] A separate “certification” of one of Ocwen Loan Servicing, LLC’s assistant secretaries was also attached as an exhibit to Ms. Greggerson’s affidavit, and it appeared to include an enumerated list of certain PNC employees authorized to act on Ocwen’s behalf. Ms. Greggerson’s name did not appear on that list.

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TFH 5/13/18 | Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

TFH 5/13/18 | Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

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 – May 13, 2018

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Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

 

 

 

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Two Sundays ago The Foreclosure Hour informed our listeners of the tragic story of Dr. Amanda Tucker, whose entire life savings consisting of millions of dollars in real estate equity was stolen from her because of antiquated judge-made common law deficiency judgment procedures still being inflicted today upon homeowners in a near majority of our States.

And that occurred despite the earlier sworn testimony in Court of Dr. Tucker’s Banker that she was not even in default on her jumbo loans when she was sued for foreclosure.

For those listeners who missed that eye-opening broadcast, you will not only find the recording of that recent April 29, 2018 show featuring Dr. Tucker’s ordeal in the Past Broadcast Section of our Website at www.foreclosurehour.com, but we have posted a convenient link there to our original February 2, 2014 Broadcast featuring as our special guests not only Dr. Tucker, calling in live, but also her Banker, Clyde Engle on the telephone, at the time of her foreclosure summary judgment.

Our listeners will recall from past shows that originally foreclosure deficiency judgments historically did not exist, as mortgages simply contained a “right of reentry” and if one defaulted on one monthly payment, the landlord would simply kick out the borrower and take back the property and any equity the borrower had in it at the time.

To remedy the harshness of the right of reentry, English Courts of Equity instituted the present day foreclosure auction system for the purpose of protecting a homeowner’s equity in foreclosed properties, at a time when there were no other alternatives such as an MLS listing or the existence of real estate brokers capable of marketing properties, not even yet a printing press.

Today instead, forced auction sales consisting of rigged credit bidding and inadequate marketing have transformed such antiquated foreclosure auctions into modern day thieves markets, the opposite of what was intended.

Lest some mistakenly think that Dr. Tucker’s situation is somehow unique, the truth is that such ripoffs are taking place daily in our Courts, who seemingly, very much mimicking the legendary “Mr. Magoo,” appear oblivious to how they are being unwittingly turned into collection agencies for crooks.

This Sunday, for example, The Foreclosure Hour brings you the alarming details of an even worse foreclosure deficiency judgment ripoff than that waged against Dr. Tucker, which is playing out at this very moment in Northern California, its State Courts being asked to enforce another Hawai’i antiquated predatory common law Judge-made deficiency judgment under threat of imprisonment no less: Spadaro vs. Moore — the subject of this Sunday’s Radio Show.

John Waihee and I hope you will listen in and join the Homeowners SuperPAC and help us put an end to such unconscionable abuses, the only indefensible basis for which, quoting Judge Oliver Wendell Holmes, is that “it was laid down in the time of Henry IV.”

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.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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The Foreclosure Hour 12

 

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HACKER v HOMEWARD RESIDENTIAL, INC | CA 2nd Appellate – We find that Hacker has successfully alleged facts supporting a claim that the August 21, 2008 assignment is void. As such, he has standing to pursue an action for wrongful foreclosure

HACKER v HOMEWARD RESIDENTIAL, INC | CA 2nd Appellate – We find that Hacker has successfully alleged facts supporting a claim that the August 21, 2008 assignment is void. As such, he has standing to pursue an action for wrongful foreclosure

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RBS reaches $4.9 billion deal to settle U.S. mortgage bond investigation

RBS reaches $4.9 billion deal to settle U.S. mortgage bond investigation

Reuters-

Royal Bank of Scotland (RBS.L) has agreed to pay a smaller-than-expected $4.9 billion to resolve a U.S. investigation into its sale of mortgage-backed securities, paving the way for a long-awaited return of cash to UK taxpayers who bankrolled its post-crisis survival.

RBS said that $3.46 billion of the proposed civil settlement would be covered by existing provisions and that the bank would take a $1.44 billion charge in the second quarter to cover the rest.

Analysts had estimated the U.S. Department of Justice could impose a fine of up to $12 billion on RBS for mis-selling mortgage-backed securities in the run-up to the 2007-2008 financial crisis.

[REUTERS]

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A Financial-Crisis Settlement Shows Trump Team’s Lighter Touch on Banks

A Financial-Crisis Settlement Shows Trump Team’s Lighter Touch on Banks

Bloomberg-

If HSBC Holdings PlcUBS Group AG and Wells Fargo & Co. were concerned that the Trump administration might continue the big-ticket bank penalties of the Obama era, there are mounting signs that they need not be.

Royal Bank of Scotland Group Plc says it has reached a tentative deal with the Justice Department to pay $4.9 billion to resolve an investigation into its sale of toxic mortgage-backed securities a decade ago. The Justice Department, without citing a figure, confirmed a pact was near.

The RBS penalty would be about half of what many analysts had expected the bank to pay. Those estimates were based, in part, on the size of the bank’s MBS portfolio, which was larger than most. An RBS deal for under $5 billion would be the first time that a mortgage settlement with the Justice Department was lower than the same bank’s penalty to the Federal Housing Finance Agency, according to Bloomberg Intelligence.

[BLOOMBERG]

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