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TFH 9/30 | Foreclosure Workshop #68: How To Draft Discovery Requests That Will Defeat Foreclosure (Part Two)

TFH 9/30 | Foreclosure Workshop #68: How To Draft Discovery Requests That Will Defeat Foreclosure (Part Two)

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Sunday – September 30, 2018

Foreclosure Workshop #68: How To Draft Discovery Requests That Will Defeat Foreclosure (Part Two)

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As explained on last week’s show, too often foreclosure defense attorneys and pro se homeowners alike serve discovery requests in foreclosure cases that in boilerplate fashion rarely seek the kind of evidence crucial to defeating foreclosures.

Last week John Waihee and I suggested several advance techniques for relatively cheaply securing evidence capable of stopping a foreclosing plaintiff’s summary judgment attempts, as well as potentially producing a victory at trial, depending as usual upon who your trial judge is.

Our discussion last week centered around gathering documentary evidence to disprove a foreclosing plaintiff’s four bedrock contractual burdens of proving four essential elements of every foreclosure case: (1) a loan agreement, (2) a default, (3) a notice of default, and (4) standing to foreclose.

For each such set of discovery requests related to each such evidentiary requirement, we suggested a basic format beginning with a series of questions followed by individual requests for the documents and the witnesses supporting each intended answer.

This is known as a combined discovery request, consisting of an “interrogatory” numbered one through as many interrogatories as your jurisdiction allows to be served at one time (consider otherwise serving more than one set sequentially), combined with a “request for the production of documents” upon which the answer to each interrogatory is based.

After last week’s show, many listeners thanked us for those discovery suggestions, as a result of which we decided to add some additional recommendations this Sunday in a Part Two, in addition to those discussed on last week’s show which addressed such equally important discovery requests concerning loan agreements, default notices, general loan ledgers, and standing generally, now available on the past broadcast section of our website, www.foreclosurehour.com.

Today’s additional discovery strategies consist of ten advance discovery techniques that have actually stopped motions for summary judgment and won foreclosure cases for us, which are as follows:

1. In addition to yourself electronically searching for background information on Google, Lexis, and Westlaw resources the names of promissory note endorsers, robo mortgage assigners, robo notaries, and foreclosing plaintiff declarants, consider asking about and requesting in combined discovery requests their educational and employment background information and descriptions, including resumes and the contents of personnel files (with any required privacy redactions).

2. Consider asking about the existence and description of and demanding the production of employee training manuals used by your loan servicers, covering such topics as “boarding” of the loan records of prior loan servicers and TILA and RESPA requirements, in order to contradict the specific content of a loan servicer‘s representative’s declarations.

3. Consider asking about the existence and description of and demanding copies of all loan servicer agreements between your pretender lender(s) with Fannie Mae and Freddie Mac and HUD and any other Government related agency pertaining to such matters, not limited to, maintenance and destruction of original loan documents, selection and compensation of foreclosure attorneys, dates of retention, ownership of mortgage loans, and scope of authority.

4. Consider asking about the existence of all information pertaining to and demanding to know whose money initially funded your loan, including whether your loan was warehoused and table funded, and demanding the release of all such related documentation, including regarding the mortgage and lending licenses and corporate existence of all persons and entities involved in the original funding, and including those who received commissions when the loan was originally funded and when and for how much.

5. Consider asking about the existence and description of and demanding copies of all Fannie Mae and Freddie Mac and HUD Servicing Guidelines applicable to and/or used in the servicing of your loan by your loan servicer(s), including copies of all written communications between your loan servicer(s) and Fannie Mae and Freddie Mac and HUD regarding the servicing of loans during the time period of your loan.

6. Consider asking about the existence and description of and demanding copies of all rules, guidelines, correspondence, and trust pooling and servicing agreements and documents in any way restricting, authorizing, and/or in any way controlling your foreclosing trust’s or foreclosing plaintiff’s ability or authorization to approve loan modifications in terms of annual volume and dollar amounts and on whatever terms, including historically since the origination of your loan.

7. Consider asking about the existence and description of and demanding all documentation pertaining to the timing and deposit of your promissory note into securitized trust(s) claiming to own or to have owned your mortgage loan, together with all information and documentation pertaining to its placement in investment tranches and its trading history.

8. Consider asking about the existence and description of and demanding all documentation, including invoices and correspondence, pertaining to charges by attorneys and their staff and for attorneys’ fees and costs pertaining to all claimed administration and collection activities and mortgage enforcement costs related to your loan, and including such payment documentation and receipts.

9. Consider asking about the existence and description of and demanding all documentation pertaining to written correspondence and agreements between (a) your foreclosing plaintiff and/or your loan servicer(s) and (b) your loan broker pertaining to your mortgage loan and loan application, including loan solicitation, loan approval, loan escrow, loan funding, and/or the sale of your promissory note and mortgage.

10. Consider asking about the existence and description of and demanding all documentation pertaining to written correspondence and agreements, including correction manuals, prepared by your foreclosing plaintiff and/or your loan servicer(s) describing how to deal with omissions and deficiencies in a loan “collateral file” (note, mortgage, mortgage assignments, loan application, loan general ledger, default notices).

On this Sunday’s show, in addition to identifying and explaining the above ten advanced discovery techniques, we will also, time permitting, discuss why each is significant in terms of what you may uncover and how to use such information.

The above is not being presented in a sample canned format, for too many attorneys and pro se litigants succumb to just repetitiously cutting and pasting and signing form discovery requests found on the Internet without understanding or tailoring the discovery requests to their own individual set of facts.

The effective use of discovery in foreclosure cases depends on a perceptive understanding of what you are trying to achieve and how.

Moreover, you will likely be met with opposition in the form of objections based on lack of relevance despite the scope of relevance in discovery being extremely broad, and objections based on privacy or attorney-client privilege. The closer you get to evidence of fraud or evidence supporting dismissal, for instance, the more rigorous the objections to your discovery requests will become.

You can therefore anticipate needing to file motions to compel, explaining to the Court the importance and relevance of your discovery requests.

Additionally, while combined interrogatory and production of documents requests are relatively inexpensive to prepare and to serve, you may need to follow up by noticing oral depositions which usually result in completely defanging foreclosure plaintiffs, but which oral depositions can be very expensive depending on location and duration and transcript costs.

Gary Dubin

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21 Massachusetts residents hope SJC will allow foreclosure appeals to proceed, bar evictions

21 Massachusetts residents hope SJC will allow foreclosure appeals to proceed, bar evictions

MASSLIVE-

Rorie Susan Woods has been fighting eviction from her West Street home for several years and wants to keep fighting. But she said high costs to continue her court case make that impossible.

Meanwhile, the Massachusetts Alliance of Against Predatory Lending has filed an appeal with the Massachusetts Supreme Judicial Court on behalf of Woods and 20 others facing eviction. It asks the court to uphold their rights to appeal and to block their evictions or allow the petitioners to move back into their homes if they have been evicted, said Grace Ross, alliance coordinator.

Woods, who is living on disability, said she was assessed a $10,000 bond to continue the appeal of her eviction after a Housing Court judge deemed the appeal frivolous.

[MASSLIVE]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

A decade after the housing crisis, foreclosures still haunt homeowners

A decade after the housing crisis, foreclosures still haunt homeowners

Market Watch-

Maria Landi, a 75-year-old retired insurance specialist, and her husband John, had been making payments on their East Brunswick, New Jersey home for 40 years when Wells Fargo foreclosed on it in 2010.

At the time, John Landi was forced into early retirement by the financial crisis from his job as a producer at ABC DIS, +0.72%  and 20/20. The couple could no longer afford to make the monthly payments on the home where they raised five children, and were forced out in 2013 after three years of trying and failing to apply for loan modifications from Wells Fargo WFC, -0.64%

“We had countless holidays, baptisms, communions, confirmations and birthdays in that home,” Maria Landi told MarketWatch. “We had graduations, engagements, weddings and, of course, end of life moments. Our blood, sweat and tears went into this structure. Renovations, additions and many accommodating improvements were put into this, what some may call just a building.”

[MARKET WATCH]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Schultz v. Midland Credit Management, Inc., (3d Cir. 2018) |  CLASS ACTION –  Misleading, Deceptive & False statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq.

Schultz v. Midland Credit Management, Inc., (3d Cir. 2018) | CLASS ACTION – Misleading, Deceptive & False statement in a debt collection letter to the effect that forgiveness of the debt may be reported to the Internal Revenue Service constitutes a violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §1692 et. seq.

17-2244-2018-09-24 by DinSFLA on Scribd

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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BUSHNELL vs PORTFOLIO RECOVERY ASSOC., LLC | FL 2nd DCA –  the reciprocity provision in section 57.105(7) applies to a properly pleaded request for attorney’s fees made pursuant to the terms of the agreement

BUSHNELL vs PORTFOLIO RECOVERY ASSOC., LLC | FL 2nd DCA – the reciprocity provision in section 57.105(7) applies to a properly pleaded request for attorney’s fees made pursuant to the terms of the agreement

170429_39_09142018_08495513_i (1) by DinSFLA on Scribd

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BANK OF NEW YORK MELLON v. GLENVILLE | FL Supreme Court – Conflict of Surplus Funds Claim Time Frame

BANK OF NEW YORK MELLON v. GLENVILLE | FL Supreme Court – Conflict of Surplus Funds Claim Time Frame

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THE BANK OF NEW YORK MELLON, etc., Petitioner,
v.
DIANNE D. GLENVILLE a/k/a DIANE D. GLENVILLE a/k/a DIANE GLENVILLE, et al., Respondents.

No. SC17-954.
Supreme Court of Florida.
September 6, 2018.
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions Second District — Case No. 2D15-5198 (Manatee County).

Anthony R. Smith, Kathryn I. Kasper, and Kendra J. Taylor of Sirote & Permutt, P.C., Winter Park, Florida, for Petitioner.

Sheryl A. Edwards of The Edwards Law Firm, PL, Sarasota, Florida, for Respondents.

CANADY, C.J.

This case involves a dispute between the former record owners of certain real property and a subordinate lienholder over surplus funds resulting from a judicial foreclosure sale of the property. The crux of the dispute is whether the subordinate lienholder timely filed its claim to the surplus amount under the provisions of chapter 45, Florida Statutes (2015), governing judicial sales. The statute requires that a claim to surplus funds be filed within “60 days after the sale.” The specific issue presented is whether the sixty-day period begins upon the public auction of the property, the clerk’s issuance of the certificate of title, or some other event.

This Court has for review Bank of New York Mellon v. Glenville, 215 So. 3d 1284, 1285 (Fla. 2d DCA 2017), in which the Second District Court of Appeal concluded that, under section 45.031, the subordinate lienholder’s claim was untimely because it was not filed within sixty days of the public auction. In so holding, the Second District certified conflict with Straub v. Wells Fargo Bank, N.A., 182 So. 3d 878, 881 (Fla. 4th DCA 2016), in which the Fourth District Court of Appeal concluded that the sixty-day period does not begin until the clerk issues and files the certificate of title. This Court granted discretionary review based on the certified conflict. This Court has jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We conclude that the sixty-day period begins upon the clerk’s issuance of the certificate of disbursements—something the clerk is tasked with doing “[o]n filing a certificate of title.” § 45.031(7)(a), Fla. Stat. Section 45.032(3), Florida Statutes (2015)—which neither Glenville nor Straub considered—makes clear beyond any doubt that the sixty-day period begins upon issuance of the certificate of disbursements. Accordingly, we quash Glenville. We also disapprove the certified conflict case of Straub to the extent the Fourth District held that the sixty-day period begins upon the issuance of the certificate of title as opposed to the certificate of disbursements.[1]

I. BACKGROUND

Before presenting the facts and procedural history of Glenville and then discussing Straub, we provide an overview of the general procedures for judicial foreclosure sales.

Judicial Foreclosure Procedures—Generally

Section 45.031, Florida Statutes (2015)—titled “Judicial sales procedure”— as well as certain other sections of the Florida Statutes, address judicial foreclosure sales and set forth the procedures that “may be followed as an alternative to any other sale procedure if so ordered by the court.” § 45.031, Fla. Stat. Under section 45.031, the trial court, “[i]n the order or final judgment,” “shall direct the clerk to sell the property at public sale on a specified day.” § 45.031(1)(a), Fla. Stat. A notice of sale shall then be published at certain times and shall contain certain information, including “[t]he time and place of sale.” § 45.031(2), Fla. Stat. The winning bidder is required to post a deposit “[a]t the time of the sale” and must pay the remaining balance within a prescribed period. § 45.031(3), Fla. Stat. “After a sale of the property,” the clerk is required to “promptly file a certificate of sale.” § 45.031(4), Fla. Stat. “If no objections to the sale are filed within 10 days after filing the certificate of sale,” the clerk is then required to file a “certificate of title.” § 45.031(5), Fla. Stat. Upon the filing of the certificate of title, “the sale shall stand confirmed.” § 45.031(6), Fla. Stat. “On filing a certificate of title,” the clerk is then required to disburse the proceeds “in accordance with the order or final judgment” and file a “certificate of disbursements.” § 45.031(7)(a)-(b), Fla. Stat. “If there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section [45.031] and ss. 45.0315-45.035.” § 45.031(7)(d), Fla. Stat.

Section 45.031 was amended in 2006 to require that the final judgment of foreclosure, the notice of sale, and the certificate of disbursements include certain language informing subordinate lienholders and other persons claiming a right to any surplus funds that they must file a claim with the clerk of court within “60 days after the sale.” See ch. 2006-175, § 1, at 2, 3, 5, Laws of Fla. (amending § 45.031(1)(a), (2)(f), (7)(b), Fla. Stat., respectively). Section 45.031 does not define “sale” or “60 days after the sale.” But as the cross-references in section 45.031(7)(d) indicate, other sections of chapter 45 also govern surplus funds. Those other sections include section 45.032, which sets forth detailed requirements and procedures relating to the disbursement of surplus funds. As addressed more fully below, section 45.032 itself prescribes a sixty-day period in the specific context of the filing of claims for surplus funds—a sixty-day period beginning upon the issuance of the certificate of disbursements. See § 45.032(3), Fla. Stat.

Glenville —the Case on Review

Respondents, Diane and Mark Glenville, were the defendant property owners in a foreclosure action. Glenville, 215 So. 3d at 1285 n.1. Petitioner, The Bank of New York Mellon, f/k/a The Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee on behalf of the Certificateholders of the CWHEQ, Inc., CWHEQ Revolving Home Equity Loan Trust, Series 2006-D (Mellon), was the holder of a second mortgage on the property. A first mortgage on the property was held by JP Morgan Chase, and a third mortgage on the property was held by Florida Housing Finance Corporation (Florida Housing).

In May 2014, JP Morgan Chase brought a foreclosure action against the Glenvilles, seeking to foreclose its interest under the first mortgage. A Final Judgment of Foreclosure was entered against the Glenvilles on May 28, 2015. The final judgment set a public auction date of July 2, 2015, and—in accordance with section 45.031(1)(a), Florida Statutes—included the requisite statement regarding a potential surplus. The public auction was held on July 2, 2015. The clerk issued the certificate of sale on July 6, 2015, after the holiday weekend. On July 14, 2015, the clerk issued the certificate of title. And on July 29, 2015, the clerk issued the certificate of disbursements, which, in accordance with section 45.031(7)(b), Florida Statutes, included the requisite language regarding surplus funds. The certificate of disbursements reflected a surplus of $86,093.27.

On August 4, 2015, Florida Housing filed a claim asserting its right to $20,573.64 of the surplus amount. On September 1, 2015—sixty-one days after the public auction—the Glenvilles filed a Verified Claim for Mortgage Foreclosure Surplus. In their motion, the Glenvilles admitted that Florida Housing’s claim was timely and requested that the trial court issue an order disbursing $20,573.64 of the surplus to Florida Housing and the remainder to the Glenvilles. The next day, on September 2, 2015, Mellon filed a claim asserting its right to the entire surplus amount. Mellon’s claim was filed more than sixty days after the public auction but within sixty days of the clerk’s filing of each of the following: the certificate of sale, the certificate of title, and the certificate of disbursements. No other relevant claims to the surplus were filed.

On November 2, 2015, the trial court held a hearing on the parties’ competing claims for the surplus. On November 5, 2015, the trial court issued an Order to Disburse Surplus Funds, directing the clerk to disburse $20,573.64 of the surplus to Florida Housing, and the balance to the Glenvilles.[2] The trial court rejected Mellon’s claim as untimely under section 45.031 because it “was not submitted within 60 days of the foreclosure sale held on July 2, 2015.” Mellon appealed to the Second District, arguing “that a foreclosure sale is not complete until the clerk issues the certificate of sale.” Glenville, 215 So. 3d at 1285. Mellon thus contended that its claim was timely because it was filed within sixty days of issuance of the certificate of sale.

The Second District rejected Mellon’s argument and affirmed the trial court’s order denying Mellon’s claim for surplus funds. Id. The Second District primarily focused on section 45.031(7)(b) and concluded that the statutory provision unambiguously provided that the cutoff for submitting claims for surplus funds is sixty days from the date of the public auction. Id. at 1285-86. The Second District observed that section 45.031(7)(b) “only refers to the `sale,’ not the `certificate of sale,'” and then noted that “section 45.031 assigns particular and distinct meanings to the terms `sale’ and `certificate of sale’ and does not use them interchangeably.” Id. at 1286. For example, the Second District noted that section 45.031(4) uses the two terms separately and distinctly in the same sentence. Id. Thus, according to the Second District, adopting Mellon’s argument would not only render section 45.031(4) meaningless but “confuse the meaning of other subsections of the statute.” Id. The Second District then supported its conclusion by noting that two of its previous decisions used the public auction “as the start date for the sixty-day period.” Id.(citing Mathews v. Branch Banking & Tr. Co., 139 So. 3d 498, 499-500 (Fla. 2d DCA 2014)Dever v. Wells Fargo Bank Nat’l Ass’n, 147 So. 3d 1045, 1047 (Fla. 2d DCA 2014)).

The Second District also rejected a separate argument from Mellon that the sixty-day period should begin from the day the clerk issues the certificate of title. The Second District concluded that Mellon waived that argument by not raising it prior to rehearing. Id.[3] Nevertheless, the Second District noted that Mellon’s purportedly waived argument was consistent with the Fourth District’s recent decision in Straub, which held that the sixty-day cutoff period begins when the clerk issues and files the certificate of title. Id. at 1287. The Second District then certified conflict with Straub, while opining that Straub‘s construction of the term “sale” “confuses the meaning of several subsections of section 45.031.” Id. (citing § 45.031(1)(a), (2), (3), (5), and (6), Fla. Stat.).

Straub —the Certified Conflict Case

In Straub, the subordinate lienholders filed their claims to the surplus more than sixty days after the public auction and the filing of the certificate of sale, but not more than sixty days after the clerk’s filing of the certificate of title. Straub, 182 So. 3d at 880. The trial court determined that the subordinate lienholders’ claims were timely. Id. at 879. On appeal to the Fourth District, the homeowner argued that the claims were untimely because the sixty-day period in section 45.031 “begins to run when the property is purchased at the auction and the certificate of sale is filed.” Id. at 880. The Fourth District in Straub rejected the homeowner’s argument and concluded—without mentioning the certificate of disbursements—that the sixty-day period begins to run upon the issuance and filing of the certificate of title. Id. at 881. Straub began by noting that the case presented “an issue of first impression under today’s version of section 45.031.” Id. at 880. Straub then looked to Allstate Mortgage Corp. of Florida v. Strasser, 286 So. 2d 201 (Fla. 1973), in which this Court interpreted a previous version of section 45.031. Straub, 182 So. 3d at 880-81.

In Strasser, this Court interpreted the meaning of the term “sale” in section 45.031(1), Florida Statutes (1971), but in the context of the right of redemption. Strasser, 286 So. 2d at 201. The statutory language at issue was added in 1971 and provided as follows: “In cases when a person has an equity of redemption, the court shall not specify a time for the redemption, but the person may redeem the property at any time before the sale.” Id. at 202 (quoting § 45.031(1), Fla. Stat. (1971)). After a default judgment was entered against the property owner in an action to foreclose a mechanic’s lien, the property was sold at public auction. Id. at 201-02. The clerk issued a certificate of sale the day after the auction. Id. at 202. Several days later, before the certificate of title was issued, the circuit court ordered the clerk to accept the property owner’s payment in redemption. Id. at 202, 203. The corporation that purchased the property at public auction appealed the trial court’s order. Id. at 202. On appeal, the Third District Court of Appeal affirmed the trial court, concluding that the Legislature intended the term “sale” to refer to the actual transfer of ownership that takes place upon the issuance of the certificate of title. Id. at 202-03. The Third District first noted that the 1971 statutory amendment was in derogation of the common law right to redeem property up until the entry of an order confirming the sale and thus must be strictly construed. Id. at 202. The Third District then noted that the Legislature neither defined the term “sale” nor indicated its intended meaning, so the Third District looked to various definitions before concluding that the Legislature intended the term “sale” to refer to the actual transfer of ownership. Id. at 202-03. And the Third District observed that, under section 45.031(3), Florida Statutes (1971), the transfer of ownership takes place upon the issuance of the certificate of title. Id. at 203. On review, this Court affirmed the decision of the Third District by quoting the Third District’s analysis and then concluding that the district court “correctly interpreted” section 45.031(1), Florida Statutes (1971). Id.

After reviewing Strasser, the Fourth District in Straub concluded that Strasser‘s reasoning should control the interpretation of the term “sale” in “today’s version of [section 45.031]”—that is, the transfer of ownership completed upon filing of the certificate of title. Straub, 182 So. 3d at 881Straub recognized that the Legislature had partially superseded Strasser in 1993 by enacting section 45.0315, which codified the right of redemption and provided that the property could be redeemed at “any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure.” Id.(quoting § 45.0315, Fla. Stat. (2014)). But Straub concluded that the Legislature merely “created a specific window for exercising the right of redemption” and that nothing in the enactment of section 45.0315 suggested that the Legislature “intended to change the plain meaning of the word `sale’ used elsewhere in the statute.” Id.

II. ANALYSIS

The certified conflict issue presented in this case requires us to construe the term “60 days after the sale,” as used in section 45.031, Florida Statutes (2015). This issue is one of statutory interpretation, which is a pure question of law that this Court reviews de novo. See Borden v. E.-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006).

In 2006, in an apparent response to the growing number of foreclosure sales that were resulting in surplus amounts, the Legislature amended chapter 45, Florida Statutes, by enacting “[a]n act relating to foreclosure proceedings.” Ch. 2006-175, Laws of Fla. (title). As indicated above, the 2006 act amended section 45.031 to require that certain statements regarding potential surplus amounts be included in the final judgment of foreclosure, the notice of sale, and the certificate of disbursements. See ch. 2006-175, § 1, at 1-6, Laws of Fla. The 2006 act also created several new statutory sections within chapter 45 to specifically address foreclosure surplus funds. And the 2006 act amended existing section 45.031(7) to add paragraph (d) to directly cross-reference those new statutory sections. See ch. 2006-175, § 1, at 6, Laws of Fla. Namely, section 45.031(7)(d), Florida Statutes (2015), provides that “[i]f there are funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements, the surplus shall be distributed as provided in this section [45.031] and ss. 45.0315-45.035.”[4] The newly created statutory sections include section 45.032, titled “Disbursement of surplus funds after judicial sale.”

Because we find section 45.032—and in particular subsection 45.032(3)—to be dispositive of the conflict issue, we begin by examining the relevant provisions of section 45.032. We then explain why section 45.032(3) requires the conclusion that the sixty-day period in section 45.031(7)(b)—and elsewhere in section 45.031—begins to run upon the issuance of the certificate of disbursements.

Section 45.032

As an initial matter, section 45.032(1) defines certain terms that apply not just for purposes of section 45.032 but “[f]or purposes of ss. 45.031-45.035.” Section 45.032(1)(c) specifically defines the term “surplus” to mean “the funds remaining after payment of all disbursements required by the final judgment of foreclosure and shown on the certificate of disbursements.” (Emphasis added.)

Among other things, section 45.032(2) then “establishe[s] a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim.” (Emphasis added.)

Section 45.032(3) then references a very specific sixty-day period: “During the 60 days after the clerk issues a certificate of disbursements, the clerk shall hold the surplus pending a court order.” (Emphasis added.) Each of the three paragraphs in subsection (3) go on to reference this sixty-day period in the specific context of the filing of claims for surplus funds. Paragraph (a) provides, in part, as follows: “If the owner of record claims the surplus during the 60-day period and there is no subordinate lienholder, the court shall order the clerk to deduct any applicable service charges from the surplus and pay the remainder to the owner of record.” § 45.032(3)(a), Fla. Stat. (emphasis added). Paragraph (b) then provides, in part, as follows:

If any person other than the owner of record claims an interest in the proceeds during the 60-day period or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus.

§ 45.032(3)(b), Fla. Stat. (emphasis added). Finally, paragraph (c) provides, in part, that “[i]f no claim is filed during the 60-day period, the clerk shall appoint a surplus trustee from a list of qualified surplus trustees as authorized in s. 45.034.” § 45.032(3)(c), Fla. Stat. (emphasis added).[5]

Lastly, the Legislature made clear that disputes over surplus funds have no bearing on the validity of the foreclosure sale itself and “do not in any manner affect or cloud the title of the purchaser at the foreclosure sale of the property.” § 45.032(5), Fla. Stat.

Statutory Interpretation

In concluding that the sixty-day period referenced in section 45.031 is triggered by the public auction, the Second District in Glenville did not take into account the specific sixty-day period identified in section 45.032(3). Instead, the Second District focused largely on what it considered to be a clear meaning of section 45.031(7)(b) that avoided confusing the meaning of other subsections of section 45.031. Glenville, 215 So. 3d at 1286-87. Similarly, the Glenvilles point to numerous instances in section 45.031 in which the term “sale” refers to the public auction, and they appear to urge this Court to follow the principle that presumes “that when the legislature uses the same term multiple times in the same statute, that term carries the same meaning each time it is used.” Nat’l Auto Serv. Centers, Inc. v. F/R 550, LLC, 192 So. 3d 498, 507 (Fla. 2d DCA 2016) (citing Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)). On the other hand, Mellon’s various arguments can be summed up as follows: in no event should the sixty-day period begin before the issuance of the certificate of sale.

We agree with Mellon that the sixty-day period is not triggered by the public auction. In doing so, we conclude that the sixty-day period in section 45.031(7)(b) must be understood in a way that is consistent with the sixty-day period in section 45.032(3). Ultimately, there cannot be two different sixty-day cutoff periods for filing claims for surplus funds.

As with any matter involving an issue of statutory interpretation, courts must first look to the actual language of the statute and “examine the statute’s plain meaning.” Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018). “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” A.R. Douglass, Inc., v. McRainey, 137 So. 157, 159 (Fla. 1931). Here, the Second District concluded that the meaning of the term “sale” as used in section 45.031(7)(b) clearly and unambiguously referred to the public auction, given the Legislature’s use of the same term in “other subsections of the statute.” Glenville,215 So. 3d at 1286 (emphasis added). But the Second District stopped short in its consideration of relevant provisions of the statutory scheme for judicial sales. This Court has long recognized that the “plain language” approach

is subject to the qualification that if a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia, the Court will examine the entire act and those in pari materia in order to ascertain the overall legislative intent.

When construing a particular part of a statute it is only when the language being construed in and of itself is of doubtful meaning or doubt as to its meaning is engendered by apparent inconsistency with other parts of the same or a closely related statute that any matter extrinsic the statute may be considered by the Court in arriving at the meaning of the language employed by the Legislature.

Fla. State Racing Comm’n v. McLaughlin, 102 So. 2d 574, 575-76 (Fla. 1958)(emphasis omitted) (quoting lower court’s order).

Section 45.032 is “closely related” to section 45.031. Id. at 576. The two sections are manifestly designed to work in tandem. Not only was section 45.032 created in the same legislation in 2006 that added the statutory language at issue to section 45.031, but that legislation also amended section 45.031 to create two separate cross-references to section 45.032 and other related sections of chapter 45, including a cross-reference in the specific context of foreclosure surpluses. See § 45.031(7)(d), Fla. Stat. The two statutory provisions are without doubt part of the same statutory scheme—that is, they are in pari materia, “in the same matter.”

So looking to section 45.032 to understand the meaning of section 45.031 is proper because section 45.031, section 45.032, and several other sections of chapter 45 together comprise a statutory scheme relating to judicial foreclosure sale procedures. See Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc.,3 So. 3d 1220, 1234 (Fla. 2009) (“[B]ecause we are dealing with an entire statutory scheme for granting and terminating charters, we do not look at only one portion of the statute in isolation but we review the entire statute to determine intent.”). In the end, looking to section 45.032 “is in accord with the principle that we `give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.'” Id. (quoting Heart of Adoptions, Inc. v. J.A., 963 So. 2d 189, 199 (Fla. 2007)). A harmonization of section 45.031 and section 45.032 leads to the conclusion that the sixty-day period for the filing of claims to surplus funds begins upon the issuance of the certificate of disbursements—that is, after the sale has been confirmed through the issuance of the certificate of title, and after the actual surplus amount has been determined. See §§ 45.031(6), 45.032(1)(c), Fla. Stat. We thus disagree with Glenville‘s conclusion that the only reasonable interpretation of “60 days after the sale” as used in section 45.031 is that it means sixty days from the public auction.

Our case law has already recognized that the term “sale” in chapter 45 must be understood in light of the specific context in which it is used. In Strasser we examined a previous version of section 45.031 and concluded that the undefined term “sale” in the specific context there referred to the transfer of ownership occurring upon the filing of the certificate of title. See Strasser, 286 So. 2d at 202-03. The point established in Strasser is underlined by the fact that the term “sale” is undefined not just in section 45.031 but in all of chapter 45, and there are other related instances in chapter 45 in which the term cannot be understood to mean the public auction itself. For example, section 45.0315, which addresses the right of redemption, provides that certain persons “may cure the mortgagor’s indebtedness and prevent a foreclosure sale” “[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure.” (Emphasis added.) In other words, a “sale” can still be “prevent[ed]” even after the public auction.

Interpretation of the sixty-day provision of section 45.031(7)(b) in light of the sixty-day provision of section 45.032(3) is also supported by the rule that “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994). Section 45.031 is clearly the more general statute. Section 45.031 is generally titled “Judicial sales procedure” and covers far more than foreclosure surpluses. Section 45.032, on the other hand, is specifically titled “Disbursement of surplus funds after judicial sale” and solely addresses foreclosure surpluses. Indeed, the very definition of the term “surplus” is found in section 45.032. Under this Court’s longstanding approach to statutory interpretation, section 45.032(3) controls the relevant sixty-day period.

Our reasoning regarding the conflict issue also requires that we disapprove the reasoning of Straub. Straub correctly determined that the sixty-day cutoff period does not begin until after the actual transfer of ownership of the property, but Straub erroneously concluded that the sixty-day period begins upon the issuance of the certificate of title. Although the Legislature may have contemplated that the certificate of disbursements would be issued on the same day as the certificate of title, see § 45.031(7)(a), Fla. Stat. (requiring the clerk to file the certificate of disbursements “[o]n filing a certificate of title”), that will not always be the case, as Glenville demonstrates. And section 45.032(3) provides that the actual triggering event is the issuance of the certificate of disbursements.

III. CONCLUSION

We conclude that “60 days after the sale,” as used in chapter 45 in the context of claims to surplus funds, means sixty days after the clerk issues the certificate of disbursements. Mellon’s claim to the surplus was timely filed before the expiration of that sixty-day period. Accordingly, we quash the Second District’s decision in Glenville. And we disapprove the reasoning of Straub, which is inconsistent with our reasoning here.

It is so ordered.

PARIENTE, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. LEWIS, J., concurs in result.

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

[1] We note that during the most recent legislative session, the Legislature passed Committee Substitute for Committee Substitute for House Bill 1361. Among other things, the bill amends sections 45.031 and 45.032, as well as certain related sections of the Florida Statutes, to revise (lengthen) the time period within which subordinate lienholders and other persons must file a claim to the surplus amount. The bill, which provides for an effective date of July 1, 2019, was signed by Governor Scott on March 21, 2018. See ch. 2018-71, Laws of Fla. We do not address this legislation.

[2] The trial court’s order reflects a surplus of $90,564.93, as opposed to the $86,093.27 surplus amount reflected in the certificate of disbursements. The actual amount of the surplus is not relevant to the legal issue presented in this case.

[3] The Second District also rejected Mellon’s reliance on certain cases that involved “a mortgagor’s right of redemption, which is governed by section 45.0315, not section 45.031.” Glenville, 215 So. 3d at 1287.

[4] Section 45.0315, which addresses the right of redemption, is the only cross-referenced section that was in existence before the effective date of the 2006 act.

[5] “Surplus trustees” are third-party trustees who must be approved by the Department of Financial Services and whose primary duty “is to locate the owner of record within 1 year after appointment.” See§ 45.034(1), (6), Fla. Stat.

 

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TURNER v SETERUS | CA Appeals Court – the fact that the property was a community asset gives him standing to pursue all of the tort causes of action in the third amended complaint

TURNER v SETERUS | CA Appeals Court – the fact that the property was a community asset gives him standing to pursue all of the tort causes of action in the third amended complaint

H/T DUBIN LAW OFFICES

 

Filed 9/24/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

AMY ARLENE TURNER et al.,

Plaintiffs and Appellants,

v.

SETERUS, INC.,

Defendant and Respondent.

C079613

(Super. Ct. No. 34201400162567CUORGDS)

APPEAL from a judgment of the Superior Court of Sacramento County, David I. Brown, Judge. Reversed with directions.

United Law Center, Danny A. Barak and Stephen J. Foondos for Plaintiffs and Appellants.

The Ryan Firm, Timothy M. Ryan, Michael W. Stolzman, Jr. for Defendant and Respondent.

* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of .parts I, IV, VI, VII and IX of the Discussion.

1

In this wrongful foreclosure case, plaintiffs Amy Arlene Turner and Joseph Zeleny

sought damages from defendant Seterus, Inc. (Seterus) on the theory that Seterus had

“frustrated [their] lawful attempt, pursuant to [Civil] Code [section] 2924c, to cure their

default more than five days prior to the noticed foreclosure sale.” The trial court

sustained Seterus’s demurrer to their third amended complaint without leave to amend.

On appeal, plaintiffs contend the trial court erred. We agree in part and reverse

the judgment with instructions to the trial court to vacate its order sustaining Seterus’s

demurrer to the third amended complaint in its entirety without leave to amend and to

instead enter a new order sustaining the demurrer without leave to amend as to the causes

of action for intentional infliction of emotional distress and breach of contract, and

overruling the demurrer as to the causes of action for intentional and negligent

misrepresentation, negligence, wrongful foreclosure, and unlawful business practices.

FACTUAL AND PROCEDURAL BACKGROUND

With respect to Seterus,1 the third amended complaint (as supplemented by

material Seterus asked the trial court to take judicial notice of) alleges as follows:

Turner acquired title to the property that is the subject of this proceeding in 2001

as an unmarried woman. She married Zeleny in approximately 2003.

In 2006, Turner refinanced the loan on the property, taking out a new loan for

$260,000. Turner was the sole borrower on the note, and only she is listed on the deed of

trust. However, both plaintiffs contributed financially to the monthly payments on the

loan.

1 Plaintiffs also sued the original loan servicer, beneficiary, and trustee of the loan for various causes of action. The claims against those defendants are not implicated in this appeal.

2

After Turner lost her job in 2009, plaintiffs began having difficulty making the

monthly loan payments. Plaintiffs obtained a loan modification in 2010; however, the

loan servicer (at that time, Bank of America) repeatedly sent plaintiffs billing statements

for greater amounts than provided for under the modification agreement, which plaintiffs

could not afford. As a result, plaintiffs fell behind on the loan.

In October 2011, Seterus became the loan servicer. On February 9, 2012, a notice

of default and election to sell under deed of trust was recorded against the property. The

notice stated that the amount necessary to cure the default was $21,139.25. The notice

further stated as follows: “you may have the legal right to bring your account in good

standing by paying all of your past due payments plus permitted costs and expenses

within the time permitted by law for reinstatement of your account, which is normally

five business days prior to the date set for the sale of your property.” The notice

identified Seterus as the entity to contact to arrange for payment to stop the foreclosure

and provided a mailing address and phone number “[t]o find out the amount you must

pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure

for any other reason.”

On October 3, 2012, a notice of trustee’s sale was recorded against the property.

The notice stated that the property would be sold at auction on October 23.

On or about October 13, 2012, Zeleny called Seterus and inquired as to the amount

plaintiffs were in default. He spoke with an agent for Seterus, who would only identify

herself as “Stacey.” Before Stacey would speak with Zeleny, however, she required

Turner to authorize Zeleny to speak on Turner’s behalf. Turner got on the phone and told

Stacey that Zeleny was authorized to speak for her.

Stacey informed Zeleny that plaintiffs were in default in the amount of $30,800.

Plaintiffs had recently deposited $30,000 into their bank account, so Zeleny informed

Stacey that he would like to pay off the entire amount of the default. Stacey told him that

Seterus would not accept that amount to cure the default because plaintiffs were allowed

3

to cure the default only if they were in the modification process, and since plaintiffs had

already been reviewed for a modification in the past five years, they could not receive a

modification. Zeleny pleaded with Stacey and tried to explain that all he wanted to do

was cure the default, but Stacey refused to accept payment.

With the trustee’s sale looming, and left with no other option, Turner filed for

chapter 7 bankruptcy. In the months following Turner’s bankruptcy discharge, Seterus

refused to work with plaintiffs on a foreclosure prevention solution. Ultimately, on

April 29, 2013, Fannie Mae (which at that time held the beneficial interest under the deed

of trust) purchased the property at the foreclosure sale.

On April 28, 2014, plaintiffs commenced this action against various defendants,

including Seterus. In August 2014, plaintiffs filed a first amended complaint. Seterus

demurred to that complaint. Before Seterus’s demurrer was heard, however, plaintiffs

filed a second amended complaint in response to the trial court’s ruling on a demurrer to

the first amended complaint filed by two other defendants (Bank of America and Fannie

Mae). As a result, plaintiffs did not oppose Seterus’s demurrer to the first amended

complaint, and the trial court sustained that demurrer with leave to amend.

Following the trial court’s ruling, plaintiffs filed a third amended complaint that

alleged 10 causes of action. Eight of those causes of action were directed at Seterus:

(1) intentional misrepresentation (second cause of action); (2) negligent

misrepresentation (third cause of action); (3) negligence (fourth cause of action);

(4) negligence per se (fifth cause of action); (5) intentional infliction of emotional distress

(sixth cause of action); (6) breach of contract (eighth cause of action); (7) wrongful

foreclosure (ninth cause of action); and (8) unlawful, unfair, and fraudulent business

practices in violation of Business and Professions Code section 17200 et seq. (tenth cause

of action). Plaintiffs also attached the following exhibits to their third amended

complaint: (1) written modification agreement; (2) corporate assignment of deed of trust;

and (3) notice of default and declaration of contract and due diligence.

4

Seterus demurred to the third amended complaint in January 2015. Plaintiffs

opposed the demurrer. In March 2015, the trial court sustained Seterus’s demurrer

without leave to amend.

As to Zeleny, the court concluded that he lacked standing to pursue any of the

causes of action in the third amended complaint because Turner was the only person

listed on the note and deed of trust on the property. The court then concluded that neither

plaintiff could pursue any of the causes of action in the complaint because the complaint

did not allege that either or both of them unconditionally tendered the full amount due

and owing on the loan. The court further concluded that it was “apparent . . . that [Turner

did not have] the ability to [tender the full amount owed], as she filed for bankruptcy.”

With respect to the individual causes of action alleged against Seterus (which

excluded only the first and seventh causes of action), the court offered the following

reasoning:

(1) The court sustained Seterus’s demurrer to the second cause of action (for

intentional misrepresentation) and the third cause of action (for negligent

misrepresentation) because plaintiffs failed to allege causation of their damages because

they failed to allege tender.

(2) The court sustained Seterus’s demurrer to the fourth and fifth causes of action

(for negligence and negligence per se) because Seterus, as servicer of the loan, did not

owe any duty beyond that of a conventional lender of money, and “[a]s a general rule, a

financial institution owes no duty of care to a borrower when the institution’s

involvement in the loan transaction does not exceed the scope of its conventional role as

a mere lender of money.”2

2 The court further sustained Seterus’s demurrer to the fifth cause of action (for negligence per se) because plaintiffs failed to allege tender of the entire indebtedness.

5

(3) The court sustained Seterus’s demurrer to the sixth cause of action (for

intentional infliction of emotional distress) because “[t]he act of foreclosing on a home

(absent other circumstances) is not the kind of extreme conduct that supports [such a]

claim” and because Turner did not allege facts demonstrating that she suffered severe

emotional distress.

(4) The court sustained Seterus’s demurrer to the eighth cause of action (for

breach of contract) because plaintiffs did not allege “that they performed by tendering the

full accelerated amount due.”

(5) The court sustained Seterus’s demurrer to the ninth cause of action (for

wrongful foreclosure) because plaintiffs failed to allege tender.

(6) The court sustained Seterus’s demurrer to the tenth cause of action (for

unlawful, unfair, and fraudulent business practices in violation of Business and

Professions Code section 17200 et seq.) without further explanation.

The court subsequently entered judgment in favor of Seterus on April 24, 2015.

Plaintiffs timely appealed.

DISCUSSION

I

Standard Of Review

“ ‘In reviewing the sufficiency of a complaint against a general demurrer, we are

guided by long-settled rules. “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.’ ” (Blumhorst v.

Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.) We may

6

affirm a trial court judgment on any basis presented by the record whether relied upon by

the trial court. (Ibid.)

II

Zeleny’s Standing

The trial court concluded that Zeleny lacked standing to pursue any of the causes

of action in the third amended complaint because Turner was the only person listed on

the note and deed of trust on the property. On appeal, plaintiffs contend the court erred in

this ruling because: (1) the property, although titled in Turner’s name only, was a

community asset because both plaintiffs contributed to the monthly payments on the loan;

and (2) plaintiffs intended the note and deed of trust to be in both of their names and

asked their broker to make that happen but did not realize until years later that the broker

did not make the change as promised. At most, plaintiffs contend, Zeleny might not have

standing to sue for breach of contract (because he was not a party to the loan, even

though they intended him to be), but the fact that the property was a community asset

gives him standing to pursue all of the tort causes of action in the third amended

complaint.

In response, Seterus argues that the property was not a community asset, but was

Turner’s separate property because she acquired it prior to the parties’ marriage. In their

reply brief, plaintiffs do not dispute that Turner acquired the property before her marriage

to Zeleny; instead, they contend the community had an interest in the property anyway

because community funds were used during the marriage to make payments on the loan.

And because the community had an interest in the property, Zeleny had an interest in the

property sufficient to give him standing in this action (with the possible exception of the

breach of contract cause of action).

We agree with plaintiffs that the allegations of the third amended complaint are

sufficient to establish that the community had an interest in the property. The complaint

alleges that “both Plaintiffs contributed financially to the monthly payments on the

7

Subject Loan.” Construed liberally, we take this allegation to mean that both parties

contributed their community property earnings during the marriage to payments on the

loan principal, which, under California community property law, gave the community an

interest in what was otherwise Turner’s separate property. (See, e.g., Bono v. Clark

(2002) 103 Cal.App.4th 1409, 1421-1422 [“[w]hen community property is used to reduce

the principal balance of a mortgage on one spouse’s separate property, the community

acquires a pro tanto interest in the property”].)

Because, under the allegations of the third amended complaint, the community had

an interest in the property, at the very least Zeleny, as a member of the community, had

standing to pursue the tort causes of action asserted in the complaint to the extent those

causes of action alleged that Seterus’s conduct resulted in the loss of the property — and,

as a result, the community’s interest therein. “ ‘Every action must be prosecuted in the

name of the real party in interest, except as otherwise provided by statute.’ (Code Civ.

Proc., § 367.) The real party in interest has ‘ “an actual and substantial interest in the

subject matter of the action,” and stands to be “benefited or injured” by a judgment in the

action.’ [Citation.] ‘Plaintiffs have standing to sue if they or someone they represent

have either suffered or are threatened with an injury of sufficient magnitude to reasonably

assure the relevant facts and issues will be adequately presented.’ ” (Fladeboe v.

American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 54-55.) As a member of the

community, which had an interest in the property, Zeleny has an actual and substantial

interest in recovering tort damages for the loss of that property and stands to be benefitted

by a judgment in this action. Accordingly, the fact that Zeleny was not a party to the note

and deed of trust on the property does not deprive him of standing in this action, and the

trial court erred in concluding otherwise.

8

III

The Tender Rule And Wrongful Foreclosure

Wrongful foreclosure is a common law tort claim. “The elements of a wrongful

foreclosure cause of action are: ‘ “(1) [T]he trustee or mortgagee caused an illegal,

fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a

mortgage or deed of trust; (2) the party attacking the sale (usually but not always the

trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or

mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the

secured indebtedness or was excused from tendering.” ’ ” (Sciarratta v. U.S. Bank

National Assn. (2016) 247 Cal.App.4th 552, 561-562; Crossroads Investors, L.P. v.

Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 782.)

The third element is commonly known as the tender rule. Where tendering is

required and not excused, a plaintiff seeking to set aside an irregular sale must allege

tender of the full amount of the loan to maintain any cause of action that either is based

on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Abdallah

  1. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109; Arnolds Management Corp.
  2. Eischen (1984) 158 Cal.App.3d 575, 579.)

Courts have applied equitable exceptions to the tender rule, such as: “(1) where

the borrower’s action attacks the validity of the underlying debt, tender is not required

since it would constitute affirmation of the debt; [citations] (2) when the person who

seeks to set aside the trustee’s sale has a counter-claim or set-off against the beneficiary,

the tender and the counter-claim offset each other and if the offset is greater than or equal

to the amount due, tender is not required; [citations] (3) a tender may not be required if it

would be ‘inequitable’ to impose such a condition on the party challenging the sale;

[citations] (4) tender is not required where the trustor’s attack is based not on principles

of equity but on the basis that the trustee’s deed is void on its face (such as where the

original trustee had been substituted out before the sale occurred)[;] [citations] [(5)] when

9

the loan was made in violation of substantive law, or in breach of the loan agreement or

an agreement to modify the loan[;] [citations] [and (6)] when the borrower is not in

default and there is no basis for the foreclosure [citations].” (5 Miller & Starr, Cal. Real

Estate (4th ed. 2017) § 13:256, pp. 13-1101-1102.)

The trial court concluded that each cause of action in the third amended complaint

failed because plaintiffs did not allege actual and unconditional tender of the entire

amount of the indebtedness under the loan. Citing to Karlsen v. American Sav. & Loan

Assn. (1971) 15 Cal.App.3d 112, 117, the court stated, “[a] valid and viable tender of

payment of the indebtedness owing is essential to an action to cancel a voidable sale

under a deed of trust.” The court found “[t]his failure to do equity, despite asking for

equitable relief related to the foreclosure, bars all of the claims” in the third amended

complaint. Thus, it appears the trial court found the plaintiffs were not excused from

tendering the entire loan amount to maintain their wrongful foreclosure cause of action

and, because the other causes of action arose from the same allegations and sought

redress from that foreclosure, those “implicitly integrated” causes of action failed as well.

(Karlsen, at p. 121.)

Plaintiffs contend the trial court committed three errors in applying the tender rule

to their causes of action. “First, the trial court conflated an offer to tender with a

requirement of an actual physical payment.” “Second, the trial court improperly

concluded that the fact that . . . Turner filed for bankruptcy must have meant that

[plaintiffs] could not afford to cure any amount due, the default sum or the entire sum.”

Third, “the trial court erroneously assumed that [Civil Code section] 2924c requires a full

tender of the entire indebtedness under the loan.” We agree the trial court erred.

We address the third claim of error first. Seterus argues the trial court’s ruling is

consistent with a long line of cases requiring the tender to be the full amount due under

the loan (or note) for which the property was security, as stated in Arnolds Management

Corp. v. Eischen, supra, 158 Cal.App.3d 575; Karlsen v. American Sav. & Loan Assn.,

10

supra, 15 Cal.App.3d 112; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89; Mendoza

  1. JPMorgan Chase Bank, N.A. (2014) 228 Cal.App.4th 1020; and Gaffney v. Downey

Savings & Loan Assn. (1988) 200 Cal.App.3d 1154. Those cases, however, arose in

circumstances where the borrowers sought to redeem the properties, not where they were

trying to reinstate their loans as provided under Civil Code section 2924c. Context is

important.

The Legislature has provided “a comprehensive framework for the regulation of a

nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.

[(Civ. Code, § 2924 et seq.)] The purposes of this comprehensive scheme are threefold:

(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy

against a defaulting debtor/trustor; (2) to protect the debtor/trustor from a wrongful loss

of the property; and (3) to ensure that a properly conducted sale is final between the

parties and conclusive as to a bona fide purchaser.” (Moeller v. Lien (1994) 25

Cal.App.4th 822, 830.) This statutory framework provides specific procedures in the

nonjudicial foreclosure sale process.

For example, “[d]uring the foreclosure process, the debtor/trustor is given several

opportunities to cure the default and avoid the loss of the property. First, the trustor is

entitled to a period of reinstatement to make the back payments and reinstate the terms of

the loan.” (Moeller v. Lien, supra, 25 Cal.App.4th at p. 830.) Specifically, the

debtor/trustor may reinstate the loan by tendering “the entire amount due, at the time

payment is tendered, with respect to (A) all amounts of principal, interest, taxes,

assessments, insurance premiums, or advances actually known by the beneficiary to be,

and that are, in default and shown in the notice of default, under the terms of the deed of

trust or mortgage and the obligation secured thereby, (B) all amounts in default on

recurring obligations not shown in the notice of default, and (C) all reasonable costs and

expenses [as provided], other than the portion of principal as would not then be due had

no default occurred.” (Civ. Code, § 2924c, subd. (a)(1).) Such tender “cure[s] the

11

default theretofore existing, and thereupon, all proceedings theretofore had or instituted

shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall

be reinstated and shall be and remain in force and effect, the same as if the acceleration

had not occurred.” (Ibid.) “Th[e] period of reinstatement continues until five business

days prior to the date of the sale, including any postponement.” (Moeller, at p. 830.) “In

addition to the right of reinstatement, the trustor also possesses an equity of redemption,

which permits the trustor to pay all sums due [on the note] prior to the sale of the

property at foreclosure and thus avoid the sale.” (Ibid.)

The requirements to exercise each of these rights — the right to reinstatement and

the right to redemption — are proportional to the value of the relief secured, and are not

interchangeable. (See 5 Miller & Starr, Cal. Real Estate, supra, at § 13:230, pp. 13-939-

13-940 [“A tender of the entire amount owing to the beneficiary . . . is called a

redemption . . . however, this does not ‘reinstate’ the loan but rather pays the debt in full

and requires a release of the deed of trust or mortgage.” In contrast, a “reinstatement,” on

“tender of the amount required for a cure of the default,” reinstates the obligation

“according to the original terms as if no default had occurred.”], fn. omitted.)

The tender rule arose in the context of redemption cases where the plaintiffs

sought to set aside the trustee’s sale for irregularities in the foreclosure sale notice or

procedure. (See, e.g., Arnolds Management Corp. v. Eischen, supra, 158 Cal.App.3d 575

[defect in notice of sale]; Karlsen v. American Sav. & Loan Assn., supra, 15 Cal.App.3d

112 [trustee sold property to corporation in which trustee was financially interested].)

“ ‘The rationale behind the [tender] rule is that if [the borrower] could not have redeemed

the property had the sale procedures been proper, any irregularities in the sale did not

result in damages to the [borrower].’ ” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th

at p. 112.) “Allowing [borrowers] to recoup the property without full tender would give

them an inequitable windfall, allowing them to evade their lawful debt.” (Stebley v.

Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) Thus, the tender rule “is

12

based on the theory that one who is relying upon equity in overcoming a voidable sale

must show that he is able to perform his obligations under the contract so that equity will

not have been employed for an idle purpose.” (Dimock v. Emerald Properties (2000) 81

Cal.App.4th 868, 878; Arnolds Management Corp., at pp. 578-579 [court of equity will

not order performance of a “useless act”].)

The plaintiffs’ wrongful foreclosure cause of action does not arise from the right

to redeem the property based on an irregularity in the notice or procedure of the sale.

Rather, plaintiffs’ cause of action arises from their right to reinstate Turner’s loan and

their allegation that, but for Seterus’s failure to accept Zeleny’s tender of the $30,800,

Turner would have cured the default, which would have entitled Turner to reinstate the

loan and extinguished the basis for the trustee’s sale. The basis for plaintiffs’ wrongful

foreclosure cause of action is thus wholly different from the basis for redemption.

For similar reasons, the cases cited by the trial court and Seterus to support the

requirement of tender of the full amount of the loan do not apply to plaintiffs here. All

these cases involve different circumstances and do not address the statutory analysis that

governs this issue. In Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th

1052, the homeowner alleged the lender mailed her a loan modification agreement under

the Home Affordable Modification Program, and she signed, returned, and performed

under that agreement. The lender, however, never mailed the homeowner a signed copy

of the loan modification agreement. The homeowner learned the property had been sold

at auction even though she never received a notice of default or notice of trustee sale.

(Id. at pp. 1055-1056.) The homeowner was forced from her home and filed an action for

breach of contract and wrongful foreclosure. (Id. at p. 1056.) The trial court sustained

the defendants’ demurrer without leave to amend. (Ibid.) The court of appeal reversed.

(Id. at p. 1055.)

Pertinent to our discussion, the court explained the homeowner was not required to

allege tender because she properly alleged a cause of action for breach of contract of the

13

modification agreement. (Chavez v. Indymac Mortgage Services, supra, 219 Cal.App.4th

at p. 1062.) She alleged the existence of an enforceable agreement and that defendants

breached the agreement by refusing payment. Thus, she “sufficiently alleged an

exception to the tender rule that the foreclosure sale was void because Defendants lacked

a contractual basis to exercise the power of sale as [her] original loan had been modified

under the [agreement] and [she] fully performed under the [agreement] until Defendants

breached the agreement by refusing payment.” (Id. at p. 1063.) Although the

homeowner also alleged improper notice of the trustee’s sale, which would otherwise be

subject to the tender requirement, the allegation did “not invalidate the remainder of th[e]

properly pled cause of action.” (Ibid.)

The court in Chavez cited to Bank of America v. La Jolla Group II (2005) 129

Cal.App.4th 706 in reaching its decision. In Bank of America, the beneficiary accepted

the homeowners’ tendered default payment on the loan but failed to notify the trustee that

the loan had been reinstated, and the foreclosure sale went forward. (Bank of America, at

  1. 709.) The beneficiary bank sued the party that successfully bid on the property at the

foreclosure sale, seeking to cancel the sale. The Bank of America court found “the

homeowners and the beneficiary bank had entered into an agreement to cure the default.

It followed that the beneficiary bank had no right to sell after that agreement and the

foreclosure sale was invalid.” (Barroso v. Ocwen Loan Servicing LLC (2012) 208

Cal.App.4th 1001, 1017.)

The court in Barroso v. Ocwen Loan Servicing LLC, supra, 208 Cal.App.4th 1001

also applied the principle in Bank of America. In Barroso, the homeowner alleged she

had an enforceable loan modification agreement with the beneficiary and that she made

all subsequent payments when they were due. (Barroso, at p. 1017.) The loan servicer

accepted the homeowners’ payments under the modification agreement, but nonetheless

proceeded with the foreclosure sale. (Id. at pp. 1004-1006.) The homeowner sued for,

among other things, wrongful foreclosure, alleging she was not in default under the

14

modification agreement. (Id. at pp. 1006-1007.) The defendants demurred to the

complaint, arguing the homeowner failed to allege tender of the amounts due under the

mortgage. (Id. at p. 1007.)

The court found that, “[b]ased on [her] allegations, [the homeowner] ha[d] alleged

a basis for wrongful foreclosure under the principles applied in Bank of America v. La

Jolla Group II, supra, 129 Cal.App.4th at page 712. It was not necessary for [the

homeowner] to tender any amount to [the loan servicer] to forestall the foreclosure sale

because there was no default under the terms of the [agreement].” (Barroso v. Ocwen

Loan Servicing LLC, supra, 208 Cal.App.4th at p. 1017.) In other words, because the

homeowner alleged an enforceable agreement and that she performed in accordance with

her contractual obligations, the loan servicer had no contractual right to sell the property

and, therefore, the homeowner did not have to tender the full loan amount to maintain her

wrongful foreclosure cause of action.

Here, plaintiffs allege that Seterus, acting through its representative, Stacey,

wrongfully refused Zeleny’s tender of the amount necessary to cure the default on

Turner’s loan. Under Civil Code section 2924c, Turner had a statutory right, up to five

days before the noticed foreclosure sale, to stop the sale by tendering the amount due as

specified in subdivision (a)(1). A tender compliant with Civil Code section 2924c,

subdivision (a)(1) “cure[s] the default” such that all default proceedings “shall be

dismissed or discontinued and the obligation and deed of trust or mortgage shall be

reinstated and shall be and remain in force and effect, the same as if the acceleration had

not occurred.” (Civ. Code, § 2924c, subd. (a)(1), italics added.) Because the Legislature

used the words “shall” and “may” in close proximity to one another in the statute, we

may infer the Legislature intended the use of “shall” to be mandatory. (In re Richard E.

(1978) 21 Cal.3d 349, 353-354.)

Civil Code section 2924c thus limits the beneficiary’s contractual power of sale by

giving the trustor a right to cure a default and reinstate the loan within the stated time,

15

even if the beneficiary does not voluntarily agree. (Bank of America v. La Jolla Group II,

supra, 129 Cal.App.4th at p. 712.) “ ‘The law does not require plaintiff to tender the

purchase price to a trustee who has no right to sell the property at all.’ ” (Alvarez v. BAC

Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 951.) To adequately plead a

cause of action for wrongful foreclosure, all plaintiffs had to allege was that they met

their statutory obligation by timely tendering the amount required by Civil Code

section 2924c to stop the foreclosure sale, but Seterus refused that tender and thus

allowed the foreclosure sale to go forward when Seterus should have accepted their

tender and canceled the sale. Plaintiffs did so. If Seterus had accepted the tender, which

Stacey stated was sufficient to cure the default, a rescission of the foreclosure sale and

reinstatement of the loan was mandatory, and the subsequent sale was without legal basis

and void, similar to the unlawful sales in Chavez and Barroso.

Under the circumstances alleged, tender of the full amount of the loan is

unnecessary. It would be nonsensical to require plaintiffs to tender the full amount of the

loan to maintain a wrongful foreclosure cause of action based on Seterus’s refusal to

accept the timely tender of the amount required under Civil Code section 2924c.

(Munger v. Moore (1970) 11 Cal.App.3d 1, 7-8 [failure to accept timely tender of amount

due to cure default may constitute wrongful foreclosure allowing a plaintiff to bring an

action for damages for the illegal sale resulting from the failure to accept the timely

tender].) Such a requirement would thwart the statutory intent of Civil Code

section 2924c by failing to “protect the debtor/trustor from a wrongful loss of the

property.” (Moeller v. Lien, supra, 25 Cal.App.4th at p. 830.) Accordingly, we find the

tender rule does not bar any of plaintiffs’ causes of action.

This conclusion leaves a few loose ends to wrap up regarding the wrongful

foreclosure cause of action. First, Seterus suggests that even if plaintiffs did not have to

tender the full amount of the indebtedness, they had to do more than offer to pay the

amount required to cure the default. In Seterus’s view, Civil Code section 2924c

16

obligated plaintiffs “to actually submit a payment to [Seterus], which they concede they

did not.”

We disagree that actual submission of a payment was necessary here for plaintiffs

to state a cause of action for wrongful foreclosure. As the trial court itself noted, “[a]

tender is an offer of performance . . . .” (Italics added.) (See Civ. Code, § 1485 [“[a]n

obligation is extinguished by an offer of performance, made in conformity to the rules

herein prescribed, and with intent to extinguish the obligation”].) Subdivision (a)(1) of

Civil Code section 2924c provides in pertinent part that “[w]henever all or a portion of

the principal sum of any obligation secured by deed of trust . . . has . . . been declared due

by reason of default in payment of interest or of any installment of principal . . . , the

trustor . . . may pay to the beneficiary . . . the entire amount due, at the time payment is

tendered . . . other than the portion of principal as would not then be due had no default

occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings

theretofore had or instituted shall be dismissed or discontinued and the obligation and

deed of trust . . . shall be reinstated and shall be and remain in force and effect . . . .”

Here, for purposes of Civil Code section 2924c, Zeleny effectively tendered payment of

the amount then due when he told Stacey that he would like to pay off the entire amount

of the default. Actual submission of a payment was not required.

This conclusion is bolstered by the legal maxim that “[n]o one can take advantage

of his own wrong.” (Civ. Code, § 3517.) On the facts alleged here, the only reason

plaintiffs did not make an actual payment of the entire amount of the default was because

Seterus’s representative, Stacey, told Zeleny that Seterus would not accept that amount to

cure the default because plaintiffs were not in the loan modification process. Seterus

cannot defeat the wrongful foreclosure cause of action by relying on its representative’s

wrongful refusal of the offer to pay the amount required under Civil Code section 2924c

to stop the foreclosure sale by arguing that plaintiffs never made an actual payment.

17

Consequently, Seterus’s argument that actual submission of a payment was required here

is without merit.

Seterus next argues that even if an offer of payment was sufficient, plaintiffs’

tender was ineffective because they judicially admitted that they did not have the ability

to cure the default, and they are judicially estopped from arguing otherwise. (See Civ.

Code, § 1495 [“[a]n offer of performance is of no effect if the person making it is not

able and willing to perform according to the offer”].) These arguments are also without

merit.

As the basis for its judicial admission argument, Seterus relies on the fact that in

her bankruptcy petition, filed fewer than 10 days after Zeleny offered to cure the default

in the sum of $30,800, Turner reported having only $23,245 in the bank.3 But even if the

schedule in Turner’s bankruptcy petition is treated as an admission that there was less

than $24,000 in plaintiffs’ bank accounts on October 22, 2012, that admission does not

establish that plaintiffs did not have $30,800 in their bank accounts approximately nine

days earlier, on or about October 13, 2012, when Zeleny talked to Stacey and offered to

pay the entire amount in default. Accordingly, Seterus’s judicial admission argument has

no merit.

Seterus’s judicial estoppel argument, which is also based on Turner’s bankruptcy

schedule, fares no better.4 Seterus admits that for judicial estoppel to apply, the party to

3 Seterus asks us to take judicial notice of the Voluntary Petition filed by Turner in the United States Bankruptcy Court for the Eastern District of California on October 22, 2012, and the Discharge of Debtor issued by that court on February 5, 2013. We deny the request for judicial notice because the documents are irrelevant to this appeal, as we explain.

4 Turner asks us to take judicial notice of the original complaint filed in this action, Seterus’s demurrer to that complaint, and her Ex Parte Motion to Reopen Case filed in the United States Bankruptcy Court for the Eastern District of California on April 22, 2014. We deny the request for judicial notice because the documents are irrelevant to

18

be estopped must have taken two positions that are “totally inconsistent.” (Aguilar v.

Lerner (2004) 32 Cal.4th 974, 986.) That element is not satisfied here because Turner’s

assertion that plaintiffs had less than $24,000 in their bank accounts on October 22, 2012,

is not necessarily inconsistent with Zeleny’s assertion that plaintiffs had at least $30,800

in the bank approximately nine days earlier. Consequently, Seterus’s judicial estoppel

argument also has no merit.5

Seterus next argues that, even if an offer of payment was sufficient and even if

plaintiffs had the ability to cure the default, Zeleny was not within the class of persons

entitled to reinstate the loan, and therefore his tender of the payment was of no legal

significance. This argument, too, is without merit. The third amended complaint

specifically alleges that before Stacey would speak with Zeleny, she required Turner to

authorize Zeleny to speak on Turner’s behalf, and Turner took the phone and told Stacey

that Zeleny was authorized to speak for her. When Zeleny informed Stacey that he would

like to pay off the entire amount of the default, he was therefore speaking for Turner —

the trustor under the deed of trust — who even Seterus admits had the right to reinstate the

loan under Civil Code section 2924c. Accordingly, the fact that the offer of payment was

made by Zeleny does not defeat plaintiffs’ cause of action for wrongful foreclosure.

this appeal dealing with the demurrer to plaintiffs’ third amended complaint. Plaintiffs sought judicial notice of these documents in response to Seterus’s judicial estoppel argument; however, as we explain, Seterus’s argument has no merit.

5 To the extent Seterus argues that plaintiffs are judicially estopped from pursuing the causes of action asserted in the third amended complaint because Turner did not originally list those causes of action as assets of her bankruptcy estate — even though she later reopened her bankruptcy proceeding, amended her schedules, and then obtained an order from the bankruptcy trustee abandoning those causes of action as assets of the bankruptcy estate — we decline to address that argument as it is limited to a footnote, not supported by adequate citations to the record on appeal, and not adequately developed. (See California Rules of Court, rule 8.204(a)(1)(B), (C).)

19

Having considered all of the arguments offered by Seterus on the point, we

conclude that plaintiffs have stated a viable cause of action for wrongful foreclosure and

the trial court erred in sustaining Seterus’s demurrer to that cause of action. We now turn

to the remaining causes of action in the third amended complaint that apply to Seterus.

IV

Intentional And Negligent Misrepresentation

The trial court sustained Seterus’s demurrer to the second cause of action (for

intentional misrepresentation) and the third cause of action (for negligent

misrepresentation) based on the conclusion that “in the absence of allegations of actual

tender, plaintiffs have failed to allege causation of their damages.” In addressing the

wrongful foreclosure cause of action, we have already explained why plaintiffs’ failure to

tender the full amount of Turner’s loan does not preclude them from maintaining these

causes of action. Accordingly, the sustaining of the demurrer as to the misrepresentation

causes of action cannot be upheld based on the reason the trial court gave for its ruling.

Seterus argues, however, that there are several other reasons why the third amended

complaint does not state viable causes of action for intentional or negligent

misrepresentation.

“The essential elements of a count for intentional misrepresentation are (1) a

misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and

justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a

count for negligent misrepresentation are the same except that it does not require

knowledge of falsity but instead requires a misrepresentation of fact by a person who has

no reasonable grounds for believing it to be true.” (Chapman v. Skype, Inc. (2013) 220

Cal.App.4th 217, 230-231.) “Each element in a cause of action for fraud or negligent

misrepresentation must be factually and specifically alleged. [Citation.] The policy of

liberal construction of pleadings is not generally invoked to sustain a misrepresentation

pleading defective in any material respect.” (Cadlo v. Owens-Illinois, Inc. (2004) 125

20

Cal.App.4th 513, 519.) The allegations must be sufficiently specific “to allow defendant

to understand fully the nature of the charge made.” (Roberts v. Ball, Hunt, Hart, Brown

& Baerwitz (1976) 57 Cal.App.3d 104, 109.)

Seterus argues the elements have not been met because plaintiffs did not properly

allege an actionable misrepresentation, that Stacey’s statement was false, that Stacey

knew the statement was false or that she had no reasonable basis for believing the

statement to be true, or how plaintiffs relied on the misrepresentation. These arguments

are unavailing.

To set the stage for the analysis, we note that, reading the complaint as a whole

(Blumhorst v. Jewish Family Services of Los Angeles, supra, 126 Cal.App.4th at p. 999),

plaintiffs allege Stacey’s representation — that Seterus would not accept $30,800 to cure

the default on the loan because plaintiffs could cure the default only if they were in the

modification process, and since plaintiffs had already been reviewed for a modification in

the past five years, they could not receive a modification — was a knowing or reckless

misrepresentation, or one made without a reasonable basis for believing it was true,

whether it was based on Seterus’s alleged policy or the law, entitling them to relief.

Seterus first argues Stacey’s statement is not actionable because it is a statement of

“opinion or law,” not fact, and, even if it was a representation of fact, it was not material.

Plaintiffs contend that what Stacey misrepresented to Zeleny was her “understanding of

[Seterus’s] policy, not her understanding of the law. The law simply demonstrates why

this representation was false.” Plaintiffs further argue Stacey’s representation that

Seterus would not accept plaintiffs’ payment was material because, but for her

representation, plaintiffs would have remitted payment and the loan would have been

reinstated. We focus on the actual allegations in the third amended complaint.

Addressing the first portion of Seterus’s argument, we note it is true that,

“[g]enerally, an actionable misrepresentation must be made as to past or existing facts”

(Borba v. Thomas (1977) 70 Cal.App.3d 144, 152) and, “absent special circumstances,

21

misrepresentations of law do not amount to actionable fraud” (Bledsoe v. Watson (1973)

30 Cal.App.3d 105, 110). The problem with Seterus’s argument is that it

mischaracterizes the nature of the representation.

Seterus argues “the representation at issue . . . solely concerns whether [Seterus]

accurately represented its understanding of its obligations under [Civil Code]

section 2924c.” In actuality, however, plaintiffs expressly identify the misrepresentation

as Stacey’s statement to Zeleny that Seterus would not accept $30,800 to cure the default

on the loan because plaintiffs could cure the default only if they were in the modification

process, and since plaintiffs had already been reviewed for a modification in the past five

years, they could not receive a modification. That alleged statement is not a statement of

opinion or law, but a statement of fact, i.e., Seterus will not accept your tender because

you are not in the modification process, nor can you be. This statement does not express

an opinion on whether Seterus was legally obligated to accept the tender or whether

plaintiffs had the legal ability or right to reinstate the loan, as Seterus contends.

Plaintiffs’ allegations relating to Civil Code section 2924c go to the falsity of the

statement, as we explain below.

As to Seterus’s second portion of the argument regarding the alleged immateriality

of the statement, it argues plaintiffs “failed to allege facts or provide argument as to why

the specific reason(s) given by [Seterus] as to why it allegedly would not accept the

alleged reinstatement was important or affected the transaction at issue.” It further states,

“[p]lainly, the only relevant consideration for [plaintiffs] was that the alleged

reinstatement was not being accepted, regardless of the reasons for same.” Plaintiffs

respond they adequately alleged that, “but for ‘Stacey’s’ representation that [Seterus]

could not accept [plaintiffs’] offer to reinstate the loan based on a bogus and likely non-

existent modification policy, [plaintiffs] would have remitted payment and the loan

would have been brought current.” We again focus on the allegations in the third

amended complaint. Plaintiffs alleged that, but for Stacey’s statement, they “would have

22

transferred the required $30,800.00 to cure their default.” This is sufficient to establish

the materiality of the alleged misrepresentation at the pleading stage in light of the

statutory duties and obligations set forth in Civil Code section 2924c.

Seterus next contends plaintiffs failed to allege facts demonstrating Stacey’s

statement was false, “i.e., that [Stacey’s] statements were not in accord with [Seterus’s]

own policies.” It argues plaintiffs merely alleged that the statement was false because it

was not in accord with Civil Code section 2924c, which is insufficient. These allegations

are sufficient to support plaintiffs’ allegation that Stacey’s statement was false because

plaintiffs had a legal right to cure the default despite not being in the loan modification

process, contrary to what Stacey said. Further, plaintiffs alleged Seterus cited “non-

existent rules regarding the ability to cure a default only when one is in modification

review” when it refused plaintiffs’ tender because its “main aim” was to foreclose on the

property. Plaintiffs reiterate, “Plaintiffs are informed and believe and thereon allege that

there is no such rule.” Thus, plaintiffs alleged that Stacey’s statement was false to the

extent she was purporting to base her statement on an internal policy because no such

policy existed. These allegations are sufficient to allow Seterus to fully understand the

nature of the charge being made against it. (Roberts v. Ball, Hunt, Hart, Brown &

Baerwitz, supra, 57 Cal.App.3d at p. 109.)

Seterus also contends that plaintiffs failed to adequately allege that Stacey knew or

should have known of the falsity, or that she had no reasonable basis for believing her

statement. Plaintiffs’ allegations that no such policy existed and that Civil Code

section 2924c expressly provided plaintiffs with the ability to cure the default regardless

of whether they were participating in a loan modification review are sufficient to satisfy

this element.

Seterus’s final argument is that plaintiffs “failed to plead specific facts indicating

how they relied on [Seterus’s] statement as to why it was purportedly rejecting . . .

Zeleny’s alleged offer to reinstate the loan.” It is unclear why Seterus believes plaintiffs

23

were required to specifically allege how it relied on the reason why Seterus rejected the

tender as opposed to reliance on the very fact that Seterus rejected the tender, and it cites

no authority for this proposition. In the third amended complaint, plaintiffs alleged that,

but for Stacey’s representation, they “would have transferred the required $30,800.00 to

cure their default.” This is sufficient.

For the foregoing reasons, we conclude plaintiffs stated viable causes of action for

intentional and negligent misrepresentation and that the trial court erred in sustaining

Seterus’s demurrer to those causes of action.

V

Negligence And Negligence Per Se

The trial court sustained Seterus’s demurrer to the fourth and fifth causes of action

(for negligence and negligence per se) based on the conclusion that Seterus, as servicer of

the loan, did not owe any duty beyond that of a conventional lender of money, and “[a]s a

general rule, a financial institution owes no duty of care to a borrower when the

institution’s involvement in the loan transaction does not exceed the scope of its

conventional role as a mere lender of money.”

Before we proceed further, we note that “the doctrine of negligence per se is not a

separate cause of action, but creates an evidentiary presumption that affects the standard

of care in a cause of action for negligence.” (Millard v. Biosources, Inc. (2007) 156

Cal.App.4th 1338, 1353, fn. 2.) Accordingly, we treat plaintiffs’ fourth and fifth causes

of action as alleging a single cause of action for negligence.

“Whether a duty of care exists is a question of law to be determined on a case-by-

case basis.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

The question here is whether Seterus owed a duty of care to plaintiffs that would support

a cause of action for negligence based on Seterus’s alleged rejection of Zeleny’s timely

attempt to pay the amount necessary to cure the default. The alleged duty supporting the

24

negligence claims is the statutory duty under Civil Code section 2924c to accept

plaintiffs’ full tender of the amount in default.

Seterus contends no duty can be found, relying on the same general rule offered by

the trial court — that “a financial institution owes no duty of care to a borrower when the

institution’s involvement in the loan transaction does not exceed the scope of its

conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan

Assn. (1991) 231 Cal.App.3d 1089, 1096.) Plaintiffs respond the question of duty in a

specific case must be determined by applying the factors set forth in Biakanja v. Irving

(1958) 49 Cal.2d 647, as we did in Nymark. (Nymark, at pp. 1098-1100.) They further

argue that, although the courts are split over whether a lender owes a duty of care in

negotiating or processing a loan modification (see Lueras v. BAC Home Loans Servicing,

supra, 221 Cal.App.4th at p. 67; Alvarez v. BAC Home Loans Servicing, LP, supra, 228

Cal.App.4th at p. 951), this case does not involve a loan modification. We agree that we

need not address the split relating to loan modification cases, but we also need not apply

the Biakanja factors because plaintiffs’ negligence claims arise from Seterus’s statutory

duty, not from an asserted common law duty.

“Statutes may be borrowed in the negligence context for one of two purposes:

(1) to establish a duty of care, or (2) to establish a standard of care.” (Elsner v. Uveges

(2004) 34 Cal.4th 915, 927-928, fn. 8; see also Evid. Code, § 669.) We note that our

Supreme Court, in I. E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281,

explained that “the Legislature intended to cover the entire subject area of nonjudicial

foreclosures by statute” to define the duties among and between the pertinent parties.

(Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 295.) Accordingly, to

the extent a negligence cause of action arises from a statutory duty under the nonjudicial

foreclosure statutes (Civ. Code, § 2924 et seq.), we believe the duty is sufficient to

support a negligence cause of action.

25

Here, plaintiffs allege they timely tendered an amount sufficient to cure the default

to Seterus, as provided under Civil Code section 2924c. Civil Code section 2924c,

subdivision (a)(1) provides that upon such timely and appropriate tender “all proceedings

theretofore had or instituted shall be dismissed or discontinued and the obligation and

deed of trust . . . shall be reinstated and shall be and remain in force and effect . . . .” As

explained above, the use of the word “shall” denotes a mandatory obligation.

Accordingly, plaintiffs alleged sufficient facts to establish a statutory duty of care to

support their negligence claims.

VI

Intentional Infliction Of Emotional Distress

The trial court sustained Seterus’s demurrer to the sixth cause of action (for

intentional infliction of emotional distress) because “[t]he act of foreclosing on a home

(absent other circumstances) is not the kind of extreme conduct that supports [such a]

claim” and because Turner did not allege facts demonstrating that she suffered severe

emotional distress. On appeal, plaintiffs contend the trial court erred on both of these

points. We agree with Seterus that plaintiffs did not allege facts sufficient to support an

intentional infliction of emotional distress cause of action.

“The elements of a cause of action for intentional infliction of emotional distress

are (1) the defendant engages in extreme and outrageous conduct with the intent to cause,

or with reckless disregard for the probability of causing, emotional distress; (2) the

plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and

outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or

severe emotional distress.” (Ragland v. U.S. Bank National Assn. (2012) 209

Cal.App.4th 182, 204.) “[T]he alleged conduct . . . ‘ “must be so extreme as to exceed all

bounds . . . usually tolerated in a civilized community.” ’ ” (Cochran v. Cochran (1998)

65 Cal.App.4th 488, 494.) Further, the requisite severe emotional distress must be such

that “no reasonable [person] in civilized society should be expected to endure it” and the

26

defendant’s conduct must be “ ‘ “intended to inflict injury or engaged in with the

realization that injury will result.” ’ ” (Potter v. Firestone Tire & Rubber Co. (1993) 6

Cal.4th 965, 1001, 1004.)

We look to case law to define conduct which is sufficiently outrageous to satisfy

that particular element of the tort of intentional infliction of emotional distress. (See,

e.g., Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 908-909 [bank’s conduct

was sufficiently outrageous where it made misrepresentations to induce plaintiffs to

assign all past, present and future accounts receivable to the bank, then refused further

loans and forced plaintiffs to execute excessive guarantees and security agreements,

while bank employees publicly ridiculed plaintiffs, including the use of profanities];

compare Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009 [conduct not sufficiently

outrageous where foreclosing lenders breached oral agreement to foreclose on a vacant

property first where there were no allegations that lenders “threatened, insulted, abused or

humiliated” the plaintiffs].)

Plaintiffs rely on one case — Ragland — to support their claim, arguing that,

“[m]uch like in Ragland, in which Downey Savings proceeded with foreclosure despite

violating Cal. Civ. Code §2924(d), [Seterus] in the instant action proceeded with

foreclosure despite violating Cal. Civ. Code §2924c. Under Ragland, such conduct

would be sufficient.” The problem with plaintiffs’ argument is that any statutory

violation would give rise to a claim for intentional infliction of emotional distress, which

is a proposal we cannot endorse. The plaintiffs would have to allege that the violation

was done in an extreme or outrageous manner as to go beyond all bounds of decency and

to be regarded as atrocious and utterly intolerable in civilized community. (Cochran v.

Cochran, supra, 65 Cal.App.4th at pp. 494-495.)

Here, plaintiffs alleged that in response to Zeleny’s offer to cure the default on

Turner’s loan, Seterus “refused to accept the offer, citing non-existent rules regarding the

ability to cure a default only when one is in modification review.” In addition, plaintiffs

27

alleged that Seterus’s refusal of the offer to cure the default “was pre-textual, as

SETERUS had already decided that it wished to benefit from a foreclosure of the Subject

Property regardless of Plaintiffs[’] legal right to cure their default and regardless of the

emotional distress Plaintiffs would suffer from losing the home in which they raised their

children.” These allegations are distinguishable from those in Ragland and do not give

rise to the outrageous and extreme conduct necessary to support an intentional infliction

of emotional distress claim.

The factual distinctions between the allegations in the two cases do make a

difference. Accordingly, we conclude the trial court appropriately sustained the demurrer

to the cause of action for intentional infliction of emotional distress.

VII

Breach Of Contract

The trial court sustained Seterus’s demurrer to the eighth cause of action (for

breach of contract) because plaintiffs did not allege “that they performed by tendering the

full accelerated amount due.” On appeal, not even Seterus attempts to defend the trial

court’s reasoning. Instead, Seterus argues that: (1) it was not a party to the loan

agreement and thus cannot be held liable for breaching that agreement; and (2) plaintiffs

did not allege that Turner performed her obligations under the loan agreement and

therefore Seterus had no duty to perform. Seterus also argues that Zeleny was not a party

to the loan agreement.

The gist of plaintiffs’ breach of contract cause of action against Seterus was that

“when [Seterus] refused to accept Plaintiffs’ offer to cure their default, and then when it

foreclosed on the Subject Property, [Seterus] breached the original agreement between

Plaintiffs and the lender of the Subject Loan.” The problem is plaintiffs did not allege

that Seterus was a party to “the original agreement between [Turner] and the lender.” As

the loan servicer, Seterus may have been an agent of the original lender or its successor,

but “an agent cannot be held liable for breach of a duty which flows from a contract to

28

which he is not a party.” (Filippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th

1429, 1442-1443.)

In their reply brief, plaintiffs “do not deny that [Seterus] is correct on this point.”

They argue, however, that there is a provision in the deed of trust under which “any

obligations set forth in the note and Deed of Trust subsequent to Fannie Mae’s purchase

of the loan are assumed by the successor loan servicer,” i.e., Seterus. That provision

states: “If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other

than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will

remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not

assumed by the Note purchaser unless otherwise provided by the Note purchaser.” By

itself, however, this provision is not sufficient to show that Seterus, at any time, became a

party to “the original agreement between Plaintiffs and the lender.” Rather, it is

consistent with the idea that the loan servicer, acting as an agent of the lender (or the

lender’s successor), is responsible for performing the lender’s mortgage loan servicing

obligations to the borrower under the agency contract between the loan servicer and the

lender. This provision does not make the loan servicer a party to the agreement between

borrower and lender.

Because Seterus was not a party to the loan agreement, the trial court correctly

sustained Seterus’s demurrer to the cause of action for breach of contract.

VIII

Unlawful Business Practices

The trial court sustained Seterus’s demurrer to the tenth cause of action (for

unlawful, unfair, and fraudulent business practices in violation of Business and

Professions Code section 17200 et seq.) without explanation. Nevertheless, the court’s

likely basis for its ruling is not difficult to divine.

29

In their third amended complaint, plaintiffs alleged that “the unlawful acts and

practices of Defendants alleged herein constitute unlawful, unfair or fraudulent business

practices within the meaning of” Business and Professions Code section 17200. In

support of its demurrer to the tenth cause of action, Seterus argued that this cause of

action was “base[d] . . . on the legal theories asserted in the preceding claims. However,

as those causes of action fail, they cannot be utilized to state a claim under [Business and

Professions Code] section 17200. [I]f a predicate claim fails, so does the [Business and

Professions Code] section 17200 claim.” Given this argument, the trial court likely

sustained Seterus’s demurrer to this cause of action because the court had already

sustained the demurrer as to all of plaintiffs’ other causes of action. We conclude this

was error.

“ ‘Unlawful business activity’ proscribed under [Business and Professions Code]

section 17200 includes ‘ “anything that can properly be called a business practice and that

at the same time is forbidden by law.” ’ ” (Farmers Ins. Exchange v. Superior Court

(1992) 2 Cal.4th 377, 383.) “ ‘[A]n action based on Business and Professions Code

section 17200 to redress an unlawful business practice “borrows” violations of other laws

and treats these violations, when committed pursuant to business activity, as unlawful

practices independently actionable under [Business and Professions Code] section 17200

et seq. and subject to the distinct remedies provided thereunder.’ ” (Ibid.)

We have concluded that plaintiffs’ third amended complaint adequately states

causes of action for intentional and negligent misrepresentation, wrongful foreclosure and

negligence. Based on that conclusion, we likewise conclude that plaintiffs have stated a

cause of action under Business and Professions Code section 17200 et seq. Paraphrasing

Seterus’s argument, because some of plaintiffs’ predicate claims are valid, their Business

and Professions Code section 17200 claim is valid. Accordingly, the trial court erred in

sustaining Seterus’s demurrer to the cause of action under Business and Professions Code

section 17200 et seq.

30

IX

Leave To Amend

Plaintiffs contend the trial court abused its discretion by denying them leave to

amend their third amended complaint. Because we reverse the trial court’s order with

respect to the causes of action for intentional and negligent misrepresentation,

negligence, wrongful foreclosure, and unlawful business practices, we only consider

whether plaintiffs showed that they could amend the complaint to state valid causes of

action for intentional infliction of emotional distress and breach of contract — those

causes of action to which the demurrer was properly sustained. In making this argument,

however, plaintiffs do not say how they would amend their complaint as to these two

causes of action. This omission is fatal. “To meet the plaintiff’s burden of showing

abuse of discretion, the plaintiff must show how the complaint can be amended to state a

cause of action.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222

Cal.App.3d 1371, 1386.) Having not attempted such a showing here, plaintiffs have

failed to show any abuse of discretion by the trial court.

DISPOSITION

The judgment is reversed, and the case is remanded to the trial court with

instructions to vacate its order sustaining Seterus’s demurrer to the third amended

complaint in its entirety without leave to amend and to instead enter a new order

sustaining the demurrer without leave to amend as to the causes of action for intentional

infliction of emotional distress and breach of contract, and overruling the demurrer as to

the causes of action for intentional and negligent misrepresentation, negligence, wrongful

31

foreclosure, and unlawful business practices. Plaintiffs shall recover their costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(1), (3), (5).)

/s/ , Robie, Acting P. J.

We concur:

/s/ Hoch, J.

/s/ Renner, J.

32

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TFH 9/23 | Foreclosure Workshop #67: How To Draft Discovery Requests That Will Defeat Foreclosure

TFH 9/23 | Foreclosure Workshop #67: How To Draft Discovery Requests That Will Defeat Foreclosure

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 – September 23, 2018

Foreclosure Workshop #67: How To Draft Discovery Requests That Will Defeat Foreclosure

.

 ———————

 

Too often foreclosure defense attorneys and pro se homeowners alike serve discovery requests in foreclosure cases that in boilerplate fashion rarely seek the kind of evidence crucial to defeating foreclosures.

On today’s show, John Waihee and I will suggest advance techniques for cheaply securing evidence capable of stopping a foreclosing plaintiff’s summary judgment attempts as well as producing a victory at trial.

To begin with, discovery requests in foreclosure cases should concentrate on gathering evidence to disprove a foreclosing plaintiff’s four bedrock contractual burdens of proving four essential elements of every foreclosure case: (1) a loan agreement, (2) a default, (3) a notice of default, and (4) standing to foreclose.

For each such set of discovery requests, the format is basically the same, beginning with a series of questions followed by individual requests for the documents and the witnesses supporting each intended answer.

This is known as a combined discovery request, consisting of an “interrogatory” numbered one through as many interrogatories as your jurisdiction allows to be served at one time (consider otherwise serving more than one set sequentially), combined with a “request for the production of documents” upon which the answer to each interrogatory is based.

The first evidentiary requirement (a loan agreement) might be simply considered a given in most cases, it being conceded that there was a signed loan agreement usually during an escrow closing, yet that is not always the case.

For example, occasionally English is not the first language of borrowers, yet no attempt is made to translate the contract terms into English, resulting in what is called a “contract of adhesion” where there was no meeting of the minds, hence no agreement, also potentially occurring where the terms generally technical in nature were as usual not explained to the borrowers, or where the borrowers as usual were not given time to read the documents they signed, or where promises were made to induce the signing that were relied on to the borrower’s detriment, but turned out to be false when made.

Your interrogatories therefore should ask about such specific circumstances surrounding the signing and who the witnesses were, where applicable, to determine if there was in fact an agreement.

The defense of contract of adhesion, although often prominent in contract cases generally, tends to be ignored in foreclosure cases except in instances deemed unconscionable, but can be expected to gain wider acceptance in future foreclosure cases if more borrowers raised the issue.

The second evidentiary requirement (a default) is often overlooked. Foreclosing plaintiffs are required to prove that a payment default occurred (or some other, non-monetary contractual requirement was violated by the borrower, with a different cure requirement and not usually the subject of a foreclosure action).

In securitized trust cases, due to the number of loan servicers involved, often each using a different incompatible software program, mistakes are frequently made, in some cases perhaps on purpose, resulting in unreliable data entries.

In other cases, the requirement of contemporary accounting is violated, foreclosing plaintiffs impermissibly offering as its general ledger proof of either ledgers prepared especially for the foreclosure litigation or incomplete or unreadable or lacking explanatory codes and so forth.

Your discovery requests should therefore ask for copies and when and where and by whom was the proffered general ledger prepared, the rules of evidence requiring personal firsthand evidence of same absent the application of stringent business record exceptions.

Retaining an accountant or CPA as an expert to review the accuracy of the loan general ledger is recommended, and could cost you as little as $500, yet that expert report might stop a foreclosure summary judgment on its own.

The third evidentiary requirement (a notice of default), discussed on several past shows, is often overlooked by borrowers, despite the fact that if a proper notice of default is not placed in evidence there can be no summary judgment and no foreclosure.

Foreclosing plaintiffs must prove that a proper notice of monthly payment default was served on a borrower defendant in a foreclosure action.

Such proof, often by more than more presumption, requires actual evidence that a proper default notice was sent on a given date, that it was received, and that its contents was consistent with the contractual requirements of the mortgage not including more than monthly payment arrearages and late fees, and including a properly timed right to cure, and accurate, usually such contractual requirements being found in Paragraphs 22 or 23 of the standard Fannie Mae and Freddie Mac universally utilized mortgage forms.

Interrogatories should therefore be served asking when, where, and by whom and on whose behalf were default notices prepared and sent and received, and what the content of those default notices was, whereas a borrower’s declaration of non-receipt is generally sufficient to prevent summary judgment as well as to prevail at trial.

And again, combined with such interrogatories should be a request for production of all documents that support the answer.

The fact that rarely are such purported notices sent by certified mail, return receipt requested, increases a foreclosing plaintiff’s burden of proof, disadvantaged also by the lack of adequate records as well as contradictory default notices available from prior loan servicers, who may for instance have sent a default notice moreover to the wrong address or on behalf of the wrong noteholder.

The fourth evidentiary requirement (standing to foreclosure), also discussed on past shows, has become the most lethal evidentiary weapon presently to defeat foreclosures today brought by securitized trustees whose paperwork is normally shoddy.

Such interrogatories should ask for a full description of the chain of ownership and possession of each promissory note and each mortgage and each note transfer and each mortgage assignment, when, where, and by whom, and the production of copies of each, identified by date and preparer, and documentary evidence of proof of each monetary payment for each transaction including the form of payment, the amount of payment, the payor and the payee, and where the transaction occurred. Follow the money!

In the case of securitized trusts, requests for date and time of deposit of notes and mortgages into the securitized trust by who whom specifically should be questioned, together with the production of transfer and receipt documents proving that such a deposit actually occurred, for otherwise the trustee has no standing to foreclose.

It is essential moreover that a borrower specifically request the production and inspection of the original “wet ink” promissory note, which most securitized trusts do not have and will recreate for a foreclosure case.

Due to the advances in photoshop technology, handwriting analysis has become an outmoded expertise. Consider hiring someone with the computer analyst credentials of a Dr. Kelley who has been on several of our past shows.

On today’s show we will explore in detail, time permitting, each such combined discovery request based on personal case experiences, as well as the timing strategies of when and when not to serve such discovery requests.

Finally, listeners are reminded that you still need to examine the evidentiary likes and dislikes of your individual jurisdiction and your individual judge, notwithstanding the law or common sense, as lawyering today, in the foreclosure field especially, takes place in state and federal judicial systems that too often resemble individual feudal fiefdoms.

There is no better research tool than using Lexis or Westlaw to review the foreclosure decisions if available of your individual judge.

Gary Dubin

.
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

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The Foreclosure Hour 12

 

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NEVADA SANDCASTLES, LLC v. BANK OF NEW YORK MELLON, Nev: Supreme Court | QUITE TITLE – Here, it is undisputed that respondent had actual knowledge of the foreclosure sale because it received the notice of sale.

NEVADA SANDCASTLES, LLC v. BANK OF NEW YORK MELLON, Nev: Supreme Court | QUITE TITLE – Here, it is undisputed that respondent had actual knowledge of the foreclosure sale because it received the notice of sale.

 

NEVADA SANDCASTLES, LLC, Appellant,
v.
THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATEHOLDERS OF THE CWALT TRUST, INC. ALTERNATIVE LOAN TRUST 2004-18CB MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2004-18CB, Respondent.

No. 74522.
Supreme Court of Nevada.
Filed September 13, 2018.
Before: Cherry, Parraguirre and Stiglich, JJ.

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court summary judgment, certified as final under NRCP 54(b), in an action to quiet title to real property.[1] Eighth Judicial District Court, Clark County; Stefany Miley, Judge. Reviewing the summary judgment de novo, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we reverse and remand.

The district court set aside the foreclosure sale after concluding that the sale did not substantially comply with the foreclosure statutes in light of respondent not being mailed the notice of default. However, this court has held that substantial compliance requires only that a party (1) have actual knowledge, and (2) not suffer prejudice. Hardy Cos., Inc. v. SNMARK, LLC, 126 Nev. 528, 536, 245 P.3d 1149, 1155 (2010). Here, it is undisputed that respondent had actual knowledge of the foreclosure sale because it received the notice of sale. And although there was some discussion at the summary judgment hearing regarding respondent being prejudiced by not receiving the notice of default, there is no evidence in the record that respondent was actually prejudiced. See Nev. Ass’n Servs., Inc. v. Eighth Judicial Dist. Court, 130 Nev. 949, 957, 338 P.3d 1250, 1255 (2014) (recognizing that “[a]rguments of counsel are not evidence and do not establish the facts of the case” (internal quotation and alteration omitted)). Accordingly, based on the record before it, the district court erred in setting aside the foreclosure sale.[2] See W. Sunset 2050 Tr. v. Nationstar Mortg., LLC, 134 Nev., Adv. Op. 47, 420 P.3d 1032, 1035 (2018) (concluding that failure to mail the notice of default did not warrant setting aside a foreclosure sale when the deed of trust beneficiary failed to show prejudice).

Because reversal is warranted on this ground alone, we decline to address respondent’s alternative arguments on appeal that, if the sale was valid, it was a subpriority-only sale. We note, however, that this court has recently addressed similar arguments. See Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev., Adv. Op. 91, 405 P.3d 641, 650 (2017); First Horizon Home Loans v. The Entrust Grp., Inc., Docket No. 72995 (July 20, 2018, Order of Affirmance); Nationstar Mortg., LLC v. Melvin Grp., LLC, Docket No. 71028 (July 20, 2018, Order of Affirmance); HSBC Bank, USA, N.A. v. SFR Invs. Pool 1, LLC,Docket No. 71211 (December 14, 2017, Order of Affirmance). Consistent with the foregoing, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

[1] Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

[2] In the absence of prejudice, respondent likewise would not have been entitled to equitable relief if the district court had analyzed the sale under the “fraud, unfairness, or oppression” standard. See Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon, 133 Nev., Adv. Op. 91, 405 P.3d 641, 647-49 (2017) (discussing cases and reaffirming that inadequate price alone is insufficient to set aside a foreclosure sale absent “fraud, unfairness, or oppression”).

 

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‘Zombie Homes’ Lawsuit Targets Citi and Wells Fargo as Neighbors Decry Sex, Drugs and Squatters

‘Zombie Homes’ Lawsuit Targets Citi and Wells Fargo as Neighbors Decry Sex, Drugs and Squatters

New York State’s 2016 “Zombie Home” law requires banks and their subcontractors to periodically inspect houses going through foreclosure — and if residents have bailed out — take over the cost of property maintenance

NBC-

The de Blasio administration is taking big banks to court over their failure to clean up a cluster of abandoned houses as the distressed properties wind their way through snails-pace foreclosure proceedings.

The city’s Department of Housing Preservation and Development filed lawsuits Wednesday against two lenders and three mortgage servicing companies, alleging the financial firms have persistently shirked their responsibility to secure five abandoned homes in Brooklyn.

New York State’s 2016 “Zombie Home” law requires banks and their subcontractors to periodically inspect houses going through foreclosure — and if residents have bailed out — take over the cost of property maintenance.

[NBC]

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Judge Rules ICOs May Be Covered by Securities Law, but the Status of Utility Tokens Remains Unclear

Judge Rules ICOs May Be Covered by Securities Law, but the Status of Utility Tokens Remains Unclear

So why is a securitized trust real estate loan contract defrauding homeowners not also a securitized transaction in relation to borrowers?

Lexology-

A federal district court has—for the first time—agreed with the SEC that initial coin offerings (ICOs) could be considered securities offerings and has allowed a criminal case alleging violations of securities laws arising from an ICO to proceed to trial. The case, U.S. v. Zaslavskiy, 17 cr 0647, involves Maksim Zaslavskiy’s offering of two purportedly asset-backed tokens, REcoin (backed by real estate) and Diamond tokens (backed by diamonds).

According to its white paper, REcoin was backed by domestic and international real estate investments and led by an experienced team of brokers, lawyers, and developers. Meanwhile, Diamond was promoted as a virtual ecosystem that offered members cryptocurrency tokens hedged by physical diamonds stored in secure locations and fully insured for their value.

Prosecutors alleged these were all misrepresentations, as Zaslavskiy did not purchase any real estate or diamonds, did not hire a team, and never developed any REcoin or Diamond tokens. These allegations, among other alleged misrepresentations, formed the basis for the indictment charging Zaslavskiy with conspiracy and securities fraud.

[LEXOLOGY]

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The National Mortgage Settlement is officially over – Monitor’s office to shut down by end of 2018

The National Mortgage Settlement is officially over – Monitor’s office to shut down by end of 2018

HW-

The National Mortgage Settlement, the massive mortgage servicing settlement between the federal government, 49 states (all excluding Oklahoma), and five of the nation’s biggest banks and mortgage servicers, is now done and complete.

The National Mortgage Settlement is no more. RIP.

The settlement, which was originally announced on Feb. 9, 2012, required Bank of AmericaCitigroupJPMorgan ChaseWells Fargo, and ResCap (Ally Financial) to provide $20 billion in consumer relief and $5 billion in other payments.

The settlement stemmed from allegations that those companies were “robo-signing” mortgage documents, including allegedly signing swaths of foreclosure documents without properly reviewing them, evicting homeowners who were still in the modification process, and other abuses.

[HW]

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CFTC Orders Bank of America, N.A. to Pay $30 Million Penalty for Attempted Manipulation and False Reporting of U.S. Dollar ISDAFIX Benchmark Swap Rates

CFTC Orders Bank of America, N.A. to Pay $30 Million Penalty for Attempted Manipulation and False Reporting of U.S. Dollar ISDAFIX Benchmark Swap Rates

The Commodity Futures Trading Commission (CFTC or Commission) today issued an Order filing and settling charges against Bank of America, N.A. (Bank of America or the Bank) for attempted manipulation of the ISDAFIX benchmark and requiring Bank of America to pay a $30 million civil monetary penalty.

The CFTC Order finds that, beginning in January 2007 and continuing through December 2012 (the Relevant Period), Bank of America made false reports and attempted to manipulate the U.S. Dollar International Swaps and Derivatives Association Fix (USD ISDAFIX), a leading global benchmark referenced in a range of interest rate products, to benefit its derivatives positions, including positions involving cash-settled options on interest rate swaps and interest rate swap futures.

CFTC’s Director of Enforcement Comments

James McDonald, CFTC Director of Enforcement, commented:  “This marks the ninth CFTC enforcement action involving manipulative conduct in connection with the USD ISDAFIX benchmark.  As this case shows, the Commission will continue to work vigilantly to ensure the integrity of critical financial benchmarks and hold all wrongdoers accountable, no matter how widespread the misconduct.”

During the Relevant Period, USD ISDAFIX was set each day in a process that began at 11:00 a.m. Eastern Time with the capture and recording of swap rates and spreads from a U.S. based unit of a leading interest rate swaps brokering firm (Swaps Broker).

ISDAFIX rates and spreads were published daily and were meant to indicate the prevailing mid-market rate, at a specific time of day, for the fixed leg of a standard fixed-for-floating interest rate swap.  They were issued in several currencies and were published for various maturities of U.S. Dollar-denominated swaps.  The most widely used USD ISDAFIX rates and spreads, and the ones at issue in this Order, were those that were intended to indicate the prevailing market rate as of 11:00 a.m. Eastern Time.  The 11:00 a.m. USD ISDAFIX rate was used for the cash settlement of options on interest rate swaps, or swaptions, and as a valuation tool for certain other interest rate products.

The Order finds that certain Bank of America traders understood and employed two primary means in their attempts to manipulate USD ISDAFIX rates, each with the goal of moving USD ISDAFIX in the direction that favored Bank of America on specific trading positions at the expense of its counterparties.  The Bank attempted to manipulate USD ISDAFIX by bidding, offering, or trading swap spreads and U.S. Treasuries at and around 11:00 a.m. to affect rates and thereby increase or decrease the Swaps Broker’s reference rates and spreads and influence the final published USD ISDAFIX; and by making false, misleading, or knowingly inaccurate submissions to Swaps Broker concerning swap rates and spreads.

Attempts to Manipulate Through Trading

According to the Order, on occasion, certain traders at Bank of America attempted to manipulate USD ISDAFIX by bidding, offering, and executing transactions in targeted interest rate products, including swap spreads and U.S. Treasuries, at or near the critical 11:00 a.m. fixing time, with the intent to affect the reference rates and spreads captured by Swaps Broker that Swaps Broker disseminated to panel banks, and thereby to affect the published USD ISDAFIX.  Bank of America traders placed these bids or offers or executed trades in the moments leading into 11:00 a.m. designed in a manner, including timing and pricing, to increase or decrease the price level of swap spreads and/or U.S. Treasuries, with the intent to affect levels reported  on the electronic screen known as the “19901 screen” and USDAFIX fixings.  As one Bank of America trader explained to another in an electronic communication, “pushing the rate higher basically means we rcv a higher rate at the fixing.”

Attempts to Manipulate Through False Reporting

The Order also finds that certain Bank of America traders directed the relevant Bank of America Swaps Desk middle office employee responsible for making USD ISDAFIX submissions (the Submitter) to submit rates and spreads higher or lower than the Submitter otherwise would submit to attempt to affect the final published USD ISDAFIX rates and spreads to benefit the Bank’s positions.  On these occasions, Bank of America’s USD ISDAFIX submissions constituted false, misleading, or knowingly inaccurate reports because they purported to reflect the Bank’s honest view of the true costs of entering into an interest rate swap in particular tenors, but in fact reflected traders’ desire to move USD ISDAFIX higher or lower in order to benefit Bank of America’s positions.  For example, on one quarterly expiration date for swap futures contracts, a Bank of America trader told the Submitter that he was “gonna need 5y7y10y and 30y rates and spreads at 11am,” noting that he “want[ed] them low.”  The trader later instructed the Submitter to “put each of them lower by like 2/10,” and the Submitter complied with the trader’s request.

*  *  *  *  *  *

In accepting the Bank’s offer, the Commission recognizes Bank of America’s cooperation during the investigation of this matter by the CFTC’s Division of Enforcement (Division), which helped the Division undertake its investigation efficiently and effectively.  The Order also states that Bank of America commenced significant remedial action to strengthen the internal controls and policies relating to all benchmarks, including ISDAFIX.

The following CFTC staff members assisted in this case: Candice Aloisi, Jason Fairbanks, Jordon Grimm, David MacGregor, K. Brent Tomer and James Wheaton.

CFTC Division of Enforcement staff members responsible for this case are Lara Turcik, David C. Newman, Trevor Kokal, Steven I. Ringer, Lenel Hickson, Jr., and Manal M. Sultan.

 

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Florida Courts Are Prepared For A New Wave Of Foreclosures

Florida Courts Are Prepared For A New Wave Of Foreclosures

Law360-

ATTOM Data Solutions, a national property database that aggregates data for over 150 million U.S. properties, recently published its July 2018 U.S. Foreclosure Market Report, leaving many in South Florida with an unsettling sense of deja vu. Its July report indicated Miami experienced a third consecutive month of year-over-year increases in foreclosure starts, with foreclosure starts up 29 percent over the previous year in Miami.[1] The year-over-year increase in foreclosure starts in July for the state of Florida as a whole was up 35 percent.[2] For…

[LAW 360]

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Judge deals Wells Fargo another blow in mortgage scandal

Judge deals Wells Fargo another blow in mortgage scandal

NY POST-

Wells Fargo has not yet earned back the trust of New York Federal Judge Robert Drain.

The US Southern District Court judge ruled this week that a New York homeowner The Post profiled in August who fought back against the denial of a mortgage modification request by Wells Fargo — had the right to have a new loan-modification request reviewed.

Nyack, NY homeowner Mia Derosa argued that the bank’s August admission that a computer glitch wrongly denied hundreds of customers home-loan help meant that Wells Fargo might have made a similar mistake in January 2018 on her rejected loan-modification request on her existing $650,000 mortgage.

[NY POST]

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TFH 9/16 | What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

TFH 9/16 | What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

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 – September 16, 2018

What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

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John Waihee and I have spent months on the Foreclosure Hour discussing “standing issues,” explaining how to challenge a pretender lender’s right to foreclose.

Yet despite new, stringent requirements for proving standing in many jurisdictions, still a majority of state and federal trial and appellate courts in the United States, who we might term the “Deep Judiciary,” grant foreclosure summary judgments, ignoring factual breaks in the chain of ownership of mortgage loans and the applicable otherwise co trolling rules of evidence.

For those homeowners in foreclosure losing standing issues, they are then forcibly escorted into a new legal maze called a foreclosure auction and the many abusive procedures it triggers.

On today’s show we explore, time permitting, what every homeowner needs to know about the auction process and how to survive while caught involuntarily within it.

The ten major auction abuses, applicable in most instances to judicial and nonjudicial foreclosures alike, admitted as unfair and inequitable in most if not all jurisdictions, but nevertheless nothing is often done about them, are as follows, to be discussed on today’s show:

1. Escrow Unauthorized Withholding of Escrow Proceeds.

2. Rigged Credit Bidding.

3. Lack of Qualified Commissioners.

4. Forced Sale Marketing Pretenses.

5. Sweetheart Insider Trading of Mortgage Loans.

6. Fraudulently Procured Deficiency Judgments.

7. Timing Inconsistencies.

8. Unjust Enrichment Flipping.

9. Vague Conscious-Shocking Test.

10. Sham Third-Party Purchasers.

Please join John and me as we explore yet another often otherwise invisible aspect of government-sponsored theft on the Foreclosure Hour, heard in Hawaii on Sunday at KHVH-AM at 3:00 p.m. Hawaii Time (and simultaneously on the iHeart Radio Internet App at 6:00 p.m. Pacific Time and 9:00 p.m. Eastern Time, which broadcast repeats the following hour).

Gary

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Host: Gary Dubin Co-Host: John Waihee

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

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

U.S. households are still scarred by the financial crisis, new report suggests

U.S. households are still scarred by the financial crisis, new report suggests

MarketWatch-

Even a decade removed from the housing bubble, with the unemployment rate at 20-year lows, the U.S. household is still scarred by the financial crisis.

That’s the contention of a new report from Deutsche Bank economists Matthew Luzzetti, Brett Ryan and Justin Weidner, who talk of a household “savings glut.”

The economists say there’s a large disconnect between household savings and wealth.

Given the typical wealth-to-income ratio, the household savings rate should be closer to 1%. It’s remained about 6%, the economists point out.

[MARKETWATCH]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Fannie Mae Reminds Homeowners and Servicers of Mortgage Assistance Options for Areas Affected by Hurricane Florence

Fannie Mae Reminds Homeowners and Servicers of Mortgage Assistance Options for Areas Affected by Hurricane Florence

Pete Bakel

202-752-2034

WASHINGTON, DC – Fannie Mae (FNMA/OTC) is reminding those impacted by Hurricane Florence of the options available for mortgage assistance. Under Fannie Mae’s guidelines for single-family mortgages:

  • Homeowners impacted by Hurricane Florence are eligible to stop making mortgage payments for up to 12 months, during which time they:
    • will not incur late fees during this temporary payment break
    • will not have delinquencies reported to the credit bureaus
  • Servicers are authorized to suspend or reduce a homeowner’s mortgage payments immediately for up to 90 days without any contact with the homeowner if the servicer believes the homeowner has been affected by a disaster. Payment forbearance of up to 12 months is available in many circumstances.
  • Servicers must suspend foreclosure and other legal proceedings if the servicer believes the homeowner has been impacted by a disaster.

“We want to ensure those in the path of Hurricane Florence have peace of mind and time to focus on their safety,” said Carlos Perez, Senior Vice President and Chief Credit Officer at Fannie Mae. “Fannie Mae and our lending and servicing partners are focused on ensuring assistance is offered to individuals and families in need. We also continue to work with our Multifamily DUS® lenders and borrowers to determine appropriate actions to assist renters impacted by the storm. We urge everyone in the area to be safe, and we encourage homeowners affected by the storm to contact their mortgage servicer for assistance as soon as possible.”

Homeowners can reach out to Fannie Mae directly by calling 1-800-2FANNIE (1-800-232-6643). For more information, please visit www.knowyouroptions.com/relief.

Fannie Mae helps make the 30-year fixed-rate mortgage and affordable rental housing possible for millions of Americans. We partner with lenders to create housing opportunities for families across the country. We are driving positive changes in housing finance to make the home buying process easier, while reducing costs and risk. To learn more, visit fanniemae.com and follow us on twitter.com/fanniemae.

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Freddie Mac Confirms Disaster Relief Policies as Hurricane Florence Approaches

Freddie Mac Confirms Disaster Relief Policies as Hurricane Florence Approaches

MCLEAN, Va., Sept. 12, 2018 (GLOBE NEWSWIRE) — Freddie Mac(OTCQB: FMCC) today reminded Servicers of its disaster relief policies for borrowers who have been affected by Hurricane Florence. Freddie Mac’s disaster relief options are available to borrowers whose homes or places of employment are located in presidentially-declared Major Disaster Areas where federal individual assistance programs are made available to affected individuals and households.

In areas where FEMA has not yet made individual assistance available, mortgage servicers may immediately leverage Freddie Mac’s short-term forbearance programs to provide mortgage relief to their borrowers that have been affected by the hurricane.

“It is important for those in the Carolinas and nearby states to focus on their safety as Hurricane Florence approaches,” said Yvette Gilmore, Freddie Mac’s Vice President of Single-Family Servicer Performance Management. “Once out of harm’s way, we strongly encourage homeowners whose homes or places of employment have been impacted by Hurricane Florence to call their mortgage Servicer—the company to which borrowers send their monthly mortgage payments—to learn about available relief options. We stand ready to ensure that mortgage relief is made available.”

News Facts:

  • Freddie Mac disaster relief policies authorize mortgage servicers to help affected borrowers in eligible disaster areas: those federally-declared Major Disaster Areas where federal individual assistance programs have been extended. A list of these areas can be found on the FEMA’s website.
  • Freddie Mac mortgage relief options for affected borrowers in eligible disaster areas include:
    • Suspending foreclosures by providing forbearance for up to 12 months;
    • Waiving assessments of penalties or late fees against borrowers with disaster-damaged homes; and
    • Not reporting forbearance or delinquencies caused by the disaster to the nation’s credit bureaus.
  • Freddie Mac is reminding servicers to consider borrowers who are impacted by the storm, but who live and work outside of an eligible disaster area, for Freddie Mac’s standard relief policies, which include forbearance and mortgage modifications.
  • Affected borrowers should immediately contact their mortgage servicer—the company to which they send their monthly mortgage payment.
  • See http://www.freddiemac.com/singlefamily/service/natural_disasters.html for a description of Freddie Mac disaster relief policies.

Freddie Mac makes home possible for millions of families and individuals by providing mortgage capital to lenders. Since our creation by Congress in 1970, we’ve made housing more accessible and affordable for homebuyers and renters in communities nationwide. We are building a better housing finance system for homebuyers, renters, lenders, investors and taxpayers. Learn more at FreddieMac.com@FreddieMac and Freddie Mac’s blog.

MEDIA CONTACT:
Chad Wandler
703-903-2446
Chad_Wandler@FreddieMac.com

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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California’s housing crisis is so bad people are living in cars

California’s housing crisis is so bad people are living in cars

Vice-

There is a shortage of affordable housing in every state in the country, but it’s especially bad in California, where more and more people are discovering the only place they can afford to live is inside a car.

There’s only one affordable housing unit for every five extremely low-income households in the state, and the gap isn’t just pushing more and more people out onto the streets — it’s also creating a new, fast-growing, and hidden class of homelessness.

Danielle Williams is one of them. She’s a single working mother who has been living in her van with her daughter for five years. At first, it meant sleeping in dark, scarcely populated areas, and being hassled by the police on a regular basis.

[VICE]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Calif. Gov. Signs Law to Circumvent Mortgage Settlement Fund Usage

Calif. Gov. Signs Law to Circumvent Mortgage Settlement Fund Usage

NMP-

California Gov. Jerry Brown has signed into law a bill authored by the Democrat-controlled legislature that voids a court order mandating the repayment of $331 million to a special fundcreated to help victims of foreclosure abuse during the mortgage crisis.
The Associated Press reports that California received $410 million in the 2012 mortgage settlement between the states and the nation’s major mortgage companies. However, the state legislature passed a law to divert that money into paying off the deficits of agencies responsible for state housing bonds and consumer programs. Three non-profits sued California in 2014, and a state appeals court in Sacramento ruled in July that the money should be spent on programs directly assisting foreclosed homeowners.
The new law includes a statement that the Department of Finance followed legislative guidelines in the allocation of the settlement funds, adding that legislators were “aware of, and approved, the allocations and expenditures in question.” Faith Bautista, President of the National Asian American Coalition, one of the non-profits that sued the state, denounced the new law.
[NMP]
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TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

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 – September 9, 2018

TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

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This Sunday’s live broadcast first aired on The Foreclosure Hour when the nationwide fraudulent signing of mortgage assignments/notarizations and note allonges was first exposed due to the superior lawyering of several Florida attorneys.
>
> Nevertheless, although at first drawing the attention of some astute judges, such as the late Judge Arthur Schack in New York, judicial attention to such outright forgeries and the falsely recorded and the falsely sworn and falsely notarized documents in court rapidly decreased as judges are said to have erroneously concluded that the infamous AG Settlement years ago had somehow compensated borrowers for such false loan documentation, which it obviously however did not.
>
> While I am on the U.S. Mainland this weekend, it is once again time to remind everyone, especially the judiciary, lest we forget, of the incredibly blatant fraud perpetrated through robo-signing not only upon America’s mortgage borrowers, but also upon our Courts, which has been instrumental in covering up what we and others have called “The Great Deception”.
>
> And there is no better way of doing so than revisiting the startling video-taped admissions, exclusively broadcast by The Foreclosure Hour despite constant threats of lawsuits, of some of America’s most prolific robos, as I like to call them, employed by one of America’s leading past false document manufacturers.
>
> You may also view these exclusive videos on our website at www.foreclosurehour.com.

> The next time your foreclosure Judge says he or she does not understand the significance of robo-signing as fraud and as perjury waged against borrowers and courts and recording offices, ask your foreclosure Judge to view these videos.
>
> Gary

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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

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

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