November, 2018 | FORECLOSURE FRAUD | by DinSFLA

Archive | November, 2018

DEUTSCHE BANK, TRUMP’S SUGAR DADDY, RAIDED BY POLICE ON SUSPICION OF MONEY LAUNDERING

DEUTSCHE BANK, TRUMP’S SUGAR DADDY, RAIDED BY POLICE ON SUSPICION OF MONEY LAUNDERING

The German lender, who Trump owes $300 million, is not having a great morning.

Vanity Fair-

The past few years have not been the best of times for Deutsche Bank. In fact, one might characterize them as whatever is German for anni fucking horribiles, which is to say that at various points the lender has: failed its stress test; released its own (!) internal survey showing that a large number of employees are embarrassed to admit they work at the bank; had Bloomberg call its C.E.O. a failure; seen its net income fall off a cliff; had a pair of traders convicted of manipulating Libor; and conducted an internal probe that shows it might have “handled about $150 billion” of the $230 billion that was laundered out of Russia’s Danske bank. And on Thursday, this happened:

German police raided Deutsche Bank’s offices in Frankfurt in a probe of money laundering against the country’s flagship lender. . . . The public prosecutor’s office in Frankfurt said an evaluation of data from the Panama Papers had triggered suspicion that the bank may have helped customers create offshore companies in tax havens around the world.

[VANITY FAIR]

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Deutsche Bank raided over suspected money laundering

Deutsche Bank raided over suspected money laundering

DW-

A money laundering probe stemming from the “Panama Papers” has led police to Deutsche Bank, according to authorities. Prosecutors believe the bank helped clients “transfer money from criminal activities” to tax havens.

Federal police on Thursday raided the Frankfurt offices of Deutsche Bank. The Frankfurt prosecutor’s office said the raids stemmed from an investigation into suspected money laundering at the German bank.

About 170 law enforcement agents took part in the operation. The investigation revolves around multiple Deutsche Bank employees, including two believed to still be working at the financial institution.

[DW]

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Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

Blockchain and Banking-

A few months ago, I posted a blog article questioning the true economic viability of appellate opportunities of a putative junior lien creditor in Ohio foreclosure cases. In that post, I speculated on the situation that might be faced by an appealing mortgagor if it wanted to appeal from a trial court order granting a decree of foreclosure and directing a sale of the liened property. A new decision addresses that fact pattern.

The prior article was prompted by the Green Tree Servicing v. Asterino-Starcher, et al., 2018-Ohio-977 (Franklin Cty. App., March 15, 2018) decision and the interpretation therein of Ohio Revised Code Section 2329.45.  A few months after the Green Tree Servicing decision, the Ohio Supreme Court weighed in on appeal by the other common foreclosure defendant, the mortgagor.  For better or worse, the answer is the same: a foreclosure case defendant’s right to appeal is often, in reality, illusory.

State of Ohio ex rel. Sponaugle v. Hein, Judge, 153 Ohio St. 3d 560 (Aug. 9, 2018) is a writ case against a common pleas court judge.  The unusual procedural situation arose from an ordinary residential foreclosure case in Darke County, Ohio initiated by a mortgage lending financial institution.  Unlike the Green Tree Servicingsituation, in Sponaugle the mortgagor fought the foreclosure case.  Again, a foreclosure decree was granted to the lien creditor plaintiff and a foreclosure sale was held.  As in Green Tree Servicing, a defendant (here the mortgagors, Mr. and Ms. Sponaugle rather than a junior lien creditor) appealed from the foreclosure decree and sought a stay of the foreclosure sale.

[BLOCKCHAIN AND BANKING]

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Falcon v. WILMINGTON SAVINGS FUND SOCIETY, FSB | FL 3rd DCA – Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

Falcon v. WILMINGTON SAVINGS FUND SOCIETY, FSB | FL 3rd DCA – Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

 

Blasino Falcon, Appellant,
v.
Wilmington Savings Fund Society, FSB, Appellee.

Case No. 3D17-1799.
District Court of Appeal of Florida, Third District.
Opinion filed November 21, 2018.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 17-1192, Rodney Smith, Judge.

Legal Services of Greater Miami, Inc., and Jacqueline C. Ledon and Jeffrey M. Hearne, for appellant.

Kelley Kronenberg and Jacqueline Costoya (Fort Lauderdale), for appellee.

Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

LOGUE, J.

The Borrower, Blasino Falcon, appeals the trial court’s entry of a final judgment in favor of the Lender, Wilmington Savings Fund Society, FSB. Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

Factual Background

The Lender filed a foreclosure action against the Borrower on January 17, 2017. Thereafter, the Borrower, asserting that he was in the process of obtaining counsel, filed a pro se motion for extension of time to respond to the complaint. The Lender did not oppose the extension of time and, as a result, the response to the complaint became due on March 23, 2017. Approximately six days after the due date, on March 29, 2017, the Borrower’s counsel filed a notice of appearance. However, counsel neither moved for another extension of time nor filed a responsive pleading.

On March 31, 2017, roughly one week after the responsive pleading was due pursuant to the extension, the Lender moved for judicial default. The motion for default was filed at 7:08 a.m. on the morning of March 31, 2017. At approximately 9:30 a.m. that same day, the trial court entered the default. Based upon the certificates of service, copies of the motion and the order of default were served upon the Borrower’s counsel.

On May 4, 2017, the trial court entered a sua sponte order setting the trial in the case for July 7, 2017. The Borrower, on June 8, 2017, filed his motion to set aside the default, arguing that the default had been entered in violation of his due process rights. The Borrower did not provide an explanation for his delay in moving to vacate the default.

The following week, the Lender filed its motion for summary judgment and request for attorney’s fees. The trial court heard the motion to set aside the default on July 6, 2017, but denied the motion. At the final hearing on July 7, 2017, the trial court, given the prior default, entered the final judgment of foreclosure against the Borrower. This appeal follows.

Under Florida law, “[i]t is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b).” Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); see Int’l Energy Corp. v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997) (“[W]hen a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice.”). The Lender argues that “it is undisputed that the technical requirements of notice were accomplished,” and therefore, the trial court did not err in entering the default. We disagree.

As we have held previously, “it is obvious that the `notice of application’ provided by 1.500(b) would be purposeless unless given in sufficient time to permit some meaningful action to be taken upon it after its receipt.” Cohen v. Barnett Bank of S. Fla., 433 So. 2d 1354, 1355 (Fla. 3d DCA 1983). In Cohen, we reversed a default and consequent judgments where the default order was entered two days after the application for default was served by mail. Id. Citing the five-day mailing period under Florida Rule of Civil Procedure 1.090(e), we acknowledged that “[s]ince the two day period in the notice given by the bank was less than that, and was patently insufficient even without reference to the rule, it is plain that the plaintiff did not comply with Fla. R. Civ. P. 1.500(b).” Cohen, 433 So. 2d at 1355 (emphasis added).

Here, the time elapsed between the service and filing of the application for default and the entry of the default was roughly two-and-a-half hours, strikingly less than the already “patently insufficient” time period in Cohen. Accordingly, it was error for the trial court to enter the default against the Borrower. We therefore reverse the order of default and consequent judgment, and remand for further proceedings.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

 

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TFH 11/25  |  Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

TFH 11/25 | Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

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 – November 25, 2018

Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

.

 ———————

 

By way of background, few observations in political philosophy have ever proven truer than those attributed to Victor Hugo when he penned “No army can withstand the strength of an idea whose time has come”.

John and I on past shows have summarized a variety of common sense ideas for foreclosure reform long overdue, whose time is clearly coming.

On today’s show we go one step further, suggesting how in individual cases our listeners can speed up that reform process, and at the same time defeat in court their foreclosing securitized trust, by using a new, cheap, yet more effective evidence strategy for gathering the facts in their individual cases, which we are revealing today for the first time.

For, the American legal system, or more properly nonsystem, needs help as it is hopelessly broken in the foreclosure field, as evidenced by the extremely unfair treatment of homeowners in the last few decades in both state and federal courts with the emergence of securitized trusts.

The splitting of the debt and the security, the creation of a hidden underground secondary securitized mortgage market, incomprehensible loan paperwork, the submission of fraudulent documents in court proceedings, forced below-market credit-bid-rigged auction sales, and bloated deficiency judgments — all need rethinking, but how?

In the Anglo-Saxon jurisprudential system we inherited, for better or for worse, institutional restraints, often misunderstood by laypersons, that place the burden of gathering and producing evidence upon the parties and not the court.

Homeowners need therefore to urgently sharpen their ability to get needed evidence in their individual cases before foreclosure courts.

The first step in doing so is to abandon what we have termed and exhaustedly studied on past shows, termed “The Rule Ritual”, which causes a misapplication and misprocessing of precedent when our courts look for authority in words rather than thoughts, one of the classic definitions of insanity.

In truth, the law and past precedent are fact-intensive, requiring an understanding of the purpose behind each rule statement and carefully matching that purpose with outcomes, results, and consequences.

On today’s show we identify and seek to correct yet a second equally fundamental corresponding weakness in our legal system in addition to deficiencies in processing fact-intensive authority.

We examine the failure to correctly process facts recurring in individual cases, what might be termed “The Fact Ritual,” and how each of us can correct that.

Unlike medicine, for instance, the legal system has no equivalent to the Centers for Disease Control.

Instead, we have thousands of judges scattered throughout the United States, each with their own microscope and stethoscope, as it were, if that, without any means of either gathering or sharing information with one another, even within the same jurisdiction.

There is no database of pathogens to benefit from, such as Linda Green, Lorrie Womack, National Title Clearing, and others, including the hundreds of securitized trusts such as Bank of New York Mellon, U.S. Bank, Deutsche Bank, etc., or for sharing cures, as it were.

Instead, each judge in each case is asked to reinvent the wheel, and that has consumed more time than judges typically have had, and more money than homeowners normally have, giving pretender lenders enormous practical advantages in American courts.

On today’s show we unveil a single, cost-effective method of countering and reversing that pretender lender advantage in securitized trust foreclosures, which experienced litigators as well as pro se litigants can greatly profit by.

We believe that these new, effective discovery techniques could additionally be exactly the lynchpin for long awaited broader reform within the foreclosure system that many have been waiting for, enabling our courts to better organize themselves to do justice in foreclosure cases finally having before them the true facts.

Listen to today’s show to learn what these new discovery techniques are, how to use them in individual cases, and how they could ultimately yield fundamental foreclosure reform no army of foreclosure attorneys will be able to withstand.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

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PennyMac Corp. v. Travis | Hawaii ICA – There is a genuine issue of fact as to when Chase was entitled to enforce the Note, and thus had standing at the time the Complaint was filed

PennyMac Corp. v. Travis | Hawaii ICA – There is a genuine issue of fact as to when Chase was entitled to enforce the Note, and thus had standing at the time the Complaint was filed

Great Job Gary Dubin Law Offices!

CAAP-16-0000806sdo by DinSFLA on Scribd

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THE NON CONSUMER CFPB Files SCOTUS Amicus Brief; Argues FDCPA Does Not Apply To Non-Judicial Foreclosure Proceedings

THE NON CONSUMER CFPB Files SCOTUS Amicus Brief; Argues FDCPA Does Not Apply To Non-Judicial Foreclosure Proceedings

The National Law Review-

The CFPB has filed an amicus brief in the U.S. Supreme Court in support of the respondent/law firm defendant in Obduskey v. McCarthy & Holthus LLP, et al., a Tenth Circuit decision that held that a law firm hired to pursue a non-judicial foreclosure under Colorado law was not a debt collector as defined under the Fair Debt Collection Practices Act.  The Supreme Court granted certiorari in June 2018 to review the Tenth Circuit’s decision and resolve a circuit split on whether the FDCPA applies to non-judicial foreclosure proceedings.  Because the Supreme Court’s decision in Obduskey will determine whether the FDCPA’s protections apply in countless non-judicial foreclosure actions, it could have a significant financial impact on the mortgage industry.

The amicus brief represents the second CFPB amicus brief filed under Acting Director Mulvaney’s leadership (the first was filed in the Seventh Circuit) and the first CFPB amicus brief filed in the Supreme Court under his leadership.  Most significantly, the amicus brief appears to be the first amicus brief filed by the CFPB in which it has supported the industry position.

In its amicus brief, the CFPB points to FDCPA Section 1692a(6) which defines the term “debt collector” to include, for purposes of Section 1692f(6), someone whose business is principally the “enforcement of security interests.”  Section 1692f(6) provides that it is an unfair or unconscionable collection practice to take or threaten to take nonjudicial action to effect dispossession of property under specified circumstances.  The CFPB argues that it follows from this ‘limited-purpose definition of debt collector” that, except for purposes of Section 1692f(6), enforcing a security interest, is not, by itself debt collection and to read the provision differently would render the “limited-purpose definition…superfluous.”

[THE NATIONAL LAW REVIEW]

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Four generation home lost to foreclosure

Four generation home lost to foreclosure

Wowt-

After living in one Omaha home for decades, it’ll have a new owner. However, it’s not by choice.

Judi Lee, 75, is being forced to move out after failing to amend a loan.

Ten years ago, Lee’s mother used the home for collateral on a 45,000 dollar loan through Wells Fargo.

“She was 90 and she lived two years after the loan was taken out,” Lee said.

Wells Fargo stated the law prohibits discrimination for age.

When Lee’s mother and uncle died, Judi couldn’t make the $250 monthly payment on a fixed income. She requested a loan modification.

[WOWT]

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TFH 11/18 | Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

TFH 11/18 | Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

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 – November 18, 2018

Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

.

 ———————

 

Pretender lenders and their securitized trust colleagues have shown great imagination and skill in adjusting to increased judicial supervision, time and time again.

Armed with unlimited funds and professional battalions of well paid lawyers, they have been able to circumvent increased intended governmental safeguards and consumer protections against securitized trust predatory lending abuses, despite at least on the surface good faith attempted oversight by this Nation’s state and federal legislative, executive, and judicial regulatory and adjudicatory institutions.

They have done so successfully by taking advantage of the high costs of foreclosure litigation, while hiding behind the intellectual concept of the traditional mortgage/trust deed model and related centuries old statutes and case law precedents protected by stare decisis.

And when their abuses have been identified, they have purchased their way out of constantly reported regulatory criticisms by paying relatively minor monetary sanctions when compared to the hundreds of billions of dollars they have garnered through such abuses, while incomprehensibly they and their loan servicers merely repeating such abuses over again and over again.

The traditional lending model which conceptually has protected securitized trusts from real supervision is historically based on a bank making mortgage loans with depositors funds, holding on to the underlying promissory notes and collateral security until the loan is paid in full, at which point returning the promissory notes to its borrowers marked “paid in full”.

But as past listeners to The Foreclosure Hour know, that is not what happens in the hidden underground securitized trust banking system, where loans and real property collateral are sliced and diced and sold to both private and institutional investors as mortgage backed securities (MBS) and collateralized debt obligations (CDO).

Involved within that complex process are a large cast, including brokers, insurance companies, underwriters, appraisers, loan servicers, robo-signers, notaries, endorsers, personal and institutional investors, government and quasi-government agencies, and others avoiding traditional state recording system supervision, theoretically replaced by an unregulated series of similarly named entities known as the Mortgage Electronic Registration Systems, Inc. (MERS) masking securities transactions.

That deception has been judicially challenged in two major stages so far this century, and is now about to enter its ultimate third stage, of which every homeowner facing foreclosure needs to know in order to take full advantage of in court.

The first stage was when securitized trusts sought to utilize the traditional mortgage/trust deed model by merely submitting into evidence in court the mortgage facially assigned to it, the mortgage assignment usually certified as recorded just before foreclosing at the state or county recording office.

In response, many homeowners in foreclosure countered with “show me the note,” relying upon an ancient United States Supreme Court decision based on the traditional mortgage/trust deed model, interpreted to establish that “the mortgage follows the note”.

And their efforts began to win favor with a few judges, particularly in Florida and in New York, aided by increased revelations about robo-signers, which led foreclosure defense attorneys to argue about missed REMIC trust cutoff dates and false mortgage assignments.

However, courts invariably rejected challenges to so-called irregularities in securitized trust paper shuffling, to this day misinterpreting a borrower’s claim that the trust did not own the loan for a beneficiary’s claim of breach of the trust agreement usually known as a “pooling and servicing agreement”.

Beginning to lose the “I have the mortgage” claim, pretender lenders began to shift focus away from defending suspicious securitized mortgage assignments and suspicious securitized trust deed assignments to the negotiable instrument UCC claim instead, “I have the note”.

That shift in evidentiary focus led to the second stage, now challenging the possession and ownership of the note by pretender lenders and their entitlement to foreclose, first showing breaks in the chain of their title rendering their paperwork void as opposed to voidable without claiming to be a party to the pooling and servicing agreement, second showing that the foreclosing plaintiff did not prove having possession and ownership of the note when the foreclosure complaint was first filed (“ownership at inception”), and third showing that its supporting declarant did not have personal knowledge of all of the related securitized trust transactions, its otherwise threshold burden of proof.

As beneficial at first as arguments have been in a growing number of state jurisdictions based on there being breaks in the chain of title applying the traditional model logic, or based upon applying the ownership at inception rule, or based upon enforcing personal knowledge evidentiary requirements in challenging securitized trust abuses in many state jurisdictions under the leadership of state appellate courts attempting to bring visibility into the clandestine operations of securitized trusts, these safeguards too, it is submitted, will eventually fail because securitized trusts and their attorneys will and already are starting to create new, false paperwork purporting to overcome such second stage challenges to “I have the note”.

What is needed is a new, third stage challenge, one that can completely open up and expose the fraudulent operations within securitized trusts.

John and I believe that we have found such an ultimate tool in the form of an existing but little used affirmative defense already existing in the civil procedure rules in every federal and state jurisdiction in the United States.

Use of this ultimate affirmative defense in foreclosure litigation, to be revealed for the first time on today’s show, could not only fully open up for judicial scrutiny the low visibility operations of securitized trusts to the enormous benefit of homeowners, but could ultimately replace the traditional mortgage/trust deed model in foreclosure courts, giving homeowners also the protection of securities laws.

And this ultimate affirmative defense could do all of that within the traditional federal and state rules of civil procedure without the need for new rules, new legislation, or new case law.

Listen to this Sunday’s show to be among the first to know and to learn about the full potential of this ultimate foreclosure affirmative defense.

And please remember that most of the Nation (except Hawai’i which remains on standard time) has returned to standard time this month.

As a result, The Foreclosure Hour for the next six months is now heard live one hour earlier on most of the Mainland on iHeart Radio on the Internet, which live show however repeats itself the following hour on iHeart Radio as well for those who missed our live broadcast.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

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

 

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



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RICHARD vs BANK OF AMERICA |  FL 4DCA – Here, the borrowers made a preliminary showing that their due process rights were violated. The bank has not pointed to any evidence that the borrowers had actual knowledge of the judgment in time to pursue relief other than by a rule 1.540(b)(4) motion.

RICHARD vs BANK OF AMERICA | FL 4DCA – Here, the borrowers made a preliminary showing that their due process rights were violated. The bank has not pointed to any evidence that the borrowers had actual knowledge of the judgment in time to pursue relief other than by a rule 1.540(b)(4) motion.

181581_1709_11142018_09410550_i by DinSFLA on Scribd

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IN RE BERTRAM, Court of Appeals, 11th Circuit |  the Rooker-Feldman doctrine does not bar the Bertrams’ claims challenging the foreclosure sale, which were not actually raised or inextricably intertwined with the issues resolved in the state court’s final judgment.

IN RE BERTRAM, Court of Appeals, 11th Circuit | the Rooker-Feldman doctrine does not bar the Bertrams’ claims challenging the foreclosure sale, which were not actually raised or inextricably intertwined with the issues resolved in the state court’s final judgment.

 

In Re: BERESFORD BRYAN BERTRAM, THERESA BERTRAM, Debtors.
BERESFORD BRYAN BERTRAM, THERESA BERTRAM, Plaintiffs-Appellants,
v.
HSBC MORTGAGE SERVICES, INC., Defendant-Appellee.

No. 17-11774, Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
November 5, 2018.
Daniel C. Shatz, for Defendant-Appellee.

Brendan S. Everman, for Defendant-Appellee.

Brian C. Frontino, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida, D.C. Docket Nos. 0:16-cv-61582-CMA; 16-bkc-01154-RBR.

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

DO NOT PUBLISH

PER CURIAM.

This appeal primarily presents an issue about the scope of the Rooker-Feldmandoctrine, which bars a plaintiff from challenging in federal court the validity of a state court judgment. Defendant HSBC Mortgage Services, Inc., (“HMSI”) filed a foreclosure action in Broward County Circuit Court related to real property owned by plaintiffs Beresford and Theresa Bertram. After the state court entered a final judgment in favor of HMSI, Beresford petitioned for Chapter 7 bankruptcy. In an adversary proceeding in bankruptcy court, the Bertrams sued HMSI, claiming that the foreclosure judgment was invalid because the debt they owed HMSI was unsecured and, alternatively, that even if HMSI had properly foreclosed on the mortgage, the subsequent sale of their property was improper.

HMSI moved to dismiss the Bertrams’ complaint, arguing that the bankruptcy court lacked subject matter jurisdiction because the Rooker-Feldman doctrine barred their claims. The bankruptcy court agreed with HMSI and dismissed the complaint. The district court affirmed the bankruptcy court’s judgment.

We agree that the Rooker-Feldman doctrine bars the Bertrams’ claims challenging the validity of the state court’s foreclosure judgment. But the Rooker-Feldmandoctrine does not bar the Bertrams’ claims challenging the foreclosure sale, which were not actually raised or inextricably intertwined with the issues resolved in the state court’s final judgment. We thus affirm in part and reverse in part.

I. FACTUAL BACKGROUND

The Bertrams owned property in Broward County, Florida, secured by a mortgage. When the Bertrams defaulted on the mortgage, HMSI filed an action in state court seeking to foreclose on the mortgage. The trial court granted summary judgment to HMSI and entered a final judgment in its favor foreclosing the mortgage (the “final foreclosure judgment”). The Bertrams did not appeal the final foreclosure judgment.

Instead, the Bertrams filed in the trial court a motion to aside the final foreclosure judgment, which was denied. After their motion was denied, the Bertrams filed an interlocutory appeal with Florida’s Fourth District Court of Appeal. While the appeal was pending, a foreclosure sale of the property moved forward. The sale was scheduled, and the Clerk of Court for Broward County purported to sell the property. A few days after the sale, the Bertrams filed in the trial court an objection to the foreclosure sale. In their objection, the Bertrams requested that the trial court invalidate the final foreclosure judgment it had previously entered in favor of HMSI. They also alleged that HMSI failed to follow proper procedures in conducting the foreclosure sale. After a hearing, the trial court overruled the Bertrams’ objection and directed the Clerk to issue a certificate of title and writ of possession.

Shortly after the sale, the Fourth District Court of Appeal affirmed the trial court’s earlier order denying the Bertrams’ motion to set aside the final judgment. The Bertrams did not appeal the decision to the Florida Supreme Court. Instead, they filed another interlocutory appeal with the Fourth District Court of Appeal— this time seeking review of the trial court’s order overruling their objection to the foreclosure sale. The Fourth District Court of Appeal affirmed the trial court. Under the rules of Florida’s appellate courts, the mandate from the Fourth District Court of Appeal would issue 15 days after the decision. See Fla. R. App. P. 9.340(a). Because the decision was released on October 22, 2015, the mandate was set to issue on November 6, 2015. But, on November 4, Beresford filed a Chapter 7 bankruptcy petition. The Florida appellate court then stayed issuance of the mandate pending resolution of Beresford’s bankruptcy.

After the bankruptcy court entered an order granting Beresford a discharge, the Bertrams commenced a pro se adversary proceeding against HMSI. In the adversary proceeding, the Bertrams brought claims challenging the validity of the final foreclosure judgment and the subsequent sale of the property. The Bertrams alleged that the sale of the property was invalid because, among other reasons, HMSI allegedly had transferred its interest in the property to another entity after the final foreclosure judgment was entered but before the sale was completed.

HMSI moved to dismiss the Bertrams’ complaint, claiming that the Rooker-Feldman doctrine barred the action. HMSI attached to its motion a certificate of service indicating that it had “filed” the motion “via CM/ECF.” Doc. 11-2 at 341.[1]The certificate included a “service list” for the motion that listed the Bertrams’ address as well as an email address but did not identify how HMSI had served the Bertrams. Id. The Bertrams admit that they received a copy of the motion via email.

The bankruptcy court then noticed a hearing on the motion to dismiss and directed HMSI to serve a copy of the notice on the Bertrams. HMSI filed a certificate of service indicating that it had served the Bertrams with a copy of the notice setting the hearing via Federal Express and email.

Beresford appeared at the hearing on the motion to dismiss but claimed that he had received no notice of the hearing and only happened to learn of it when he asked the clerk’s office about the status of HMSI’s motion to dismiss. To give the Bertrams time to prepare, the bankruptcy court rescheduled the hearing on the motion to dismiss. The Bertrams subsequently filed their opposition to the motion to dismiss.

The Bertrams then filed a motion to strike the certificate of service attached to HMSI’s motion to dismiss as well as the certificate showing that HMSI had notified them of the original hearing on the motion to dismiss. They asserted that the certificate of service attached to the motion to dismiss was insufficient because it failed to identify how HMSI had served them. The Bertrams also challenged the accuracy of the certificate of service for the notice of hearing. And they contended that their address on both certificates of service was incorrect because the wrong zip code was listed. Because HMSI had failed to effectuate proper service, the Bertrams asked the bankruptcy court not to consider HMSI’s motion to dismiss.

The bankruptcy court held a hearing on the motions to strike and to dismiss. The court denied the motion to strike because the Bertrams admitted they received a copy of the motion to dismiss via email and had adequate time to prepare for the hearing. The court granted the motion to dismiss, concluding that the Bertrams’ claims were, in effect, challenging the validity of a state court judgment and barred by the Rooker-Feldman doctrine.

The Bertrams appealed the bankruptcy court’s order denying the motion to strike and granting the motion to dismiss to the district court. The district court affirmed the bankruptcy court. This is the Bertrams’ appeal from the district court’s decision.

II. STANDARD OF REVIEW

When we review an order of a district court entered in its role as an appellate court reviewing a bankruptcy court’s decision, we “independently examine[] the factual and legal determinations of the bankruptcy court, applying the same standards of review as the district court.” In re FFS Data, Inc., 776 F.3d 1299, 1303 (11th Cir. 2015). We review de novo determinations of law whether from the bankruptcy court or district court, and we review a bankruptcy court’s factual findings under a clearly erroneous standard. See In re Bilzerian, 100 F.3d 886, 889 (11th Cir. 1996). We further review de novo a bankruptcy court’s application of the Rooker-Feldmandoctrine. See Lozman v. City of Riviera Beach, 713 F.3d 1066, 1069 (11th Cir. 2013). And we review for abuse of discretion the bankruptcy court’s denial of a motion to strike. See Telfair v. First Union Mortg. Corp., 216 F.3d 1333, 1337 (11th Cir. 2000).

III. DISCUSSION

The Bertrams contend that the bankruptcy court erred in denying their motion to strike and granting HMSI’s motion to dismiss. We address these arguments in turn.

A. The Motion to Strike

The Bertrams argue that the bankruptcy court erred when it denied their motion to strike. They contend that they were never properly served with a copy of the motion to dismiss or given notice of the first hearing and that they were denied due process.

Before we can address this issue, we must consider whether we have jurisdiction to review it. HMSI argues that we lack jurisdiction to review the bankruptcy court’s order denying the motion to strike because it was a non-final order. “A court of appeals has jurisdiction over only final judgments and orders arising from a bankruptcy proceeding, whereas the district court may review interlocutory judgments and orders as well.” In re Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008)see 28 U.S.C. § 158(a), (d). A bankruptcy court order is final if it “completely resolve[s] all of the issues pertaining to a discrete claim.” Donovan,532 F.3d at 1137 (internal quotation marks omitted). HMSI reasons that because the bankruptcy court’s order denying the motion to strike was not a final order, we may not review it.

Even if the bankruptcy court’s order denying the motion to strike was not final on its own, we conclude that we have jurisdiction because the bankruptcy court entered a final order when it granted HMSI’s motion to dismiss, which completely resolved all of the issues pertaining to the Bertrams’ claims in the adversary proceeding. We have recognized, outside the bankruptcy context, that “review of the final judgment opens for consideration the prior interlocutory orders.” Barfield v. Brierton, 883 F.2d 923, 931 (11th Cir. 1989). Put differently, “the doctrine of cumulative finality allows an appeal from a non-final order to be `saved’ by subsequent events that establish finality.” In re Rimstat, Ltd., 212 F.3d 1039, 1044 (7th Cir. 2000). And we have applied the doctrine of cumulative finality in the bankruptcy context. See In re Valone, 784 F.3d 1398, 1401 (11th Cir. 2015)(concluding that we had jurisdiction to review bankruptcy court order disallowing an exemption, even though the order was not final, because the bankruptcy court had subsequently confirmed the Chapter 13 plan and thus entered a final order). Applying the doctrine of cumulative finality, we conclude that we have jurisdiction to review the order denying the motion to strike.

Turning now to the merits of the Bertrams’ arguments regarding the motion to strike, we cannot say that the bankruptcy court abused its discretion. We assume for purposes of this appeal that the certificate of service attached to HMSI’s motion to dismiss did not strictly comply with the bankruptcy court’s local rules because it failed to identify how HMSI had served the Bertrams. See Bankr. S.D. Fla. L.R. 2002-1(F), 9013-3. We also assume for purposes of this appeal that HMSI failed to properly serve the Bertrams with the notice about the first hearing. See Bankr. S.D. Fla. L.R. 9073-1(B). We acknowledge that the bankruptcy court had discretion to impose sanctions for HMSI’s failure to comply with the local rules. See Bankr. S.D. Fla. L.R. 1001-1(D). But we disagree that the court abused its discretion in declining to impose sanctions here, given that the Bertrams actually received a copy of the motion to dismiss from HMSI via email and had sufficient time to prepare for the hearing.

The Bertrams nevertheless contend that the lack of proper service denied them due process. Again, we disagree. Procedural due process guarantees a person notice and an opportunity to be heard “at a meaningful time and in a meaningful manner.” Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir. 2011). We see no due process violation here. Even if HMSI’s certificates of service were technically deficient, the Bertrams admit that they actually received a copy of the motion to dismiss, meaning they received actual notice. Although the Bertrams contend that they failed to receive adequate notice of the first hearing on the motion to dismiss, they were not prejudiced because the bankruptcy court rescheduled the hearing. At the subsequent hearing, the Bertrams confirmed they had had adequate time to prepare and were able to present oral argument. The bankruptcy court did not violate the Bertrams’ due process rights given that they actually received a copy of HMSI’s motion to dismiss when it was filed, had the opportunity to submit a written opposition to the motion, and were heard on the merits.

B. The Motion to Dismiss

We now turn to the bankruptcy court’s decision to dismiss the Bertrams’ claims based on the Rooker-Feldman doctrine. The Rooker-Feldman doctrine takes its name from two Supreme Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). These decisions collectively hold that a federal district court may not review and reverse a state court civil judgment, because only the United States Supreme Court has appellate jurisdiction over judgments of state courts in civil cases. See 28 U.S.C. § 1257; Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 292 (2005).

The Rooker-Feldman bars litigation in federal court of claims that were actually raised in the state court and those “inextricably intertwined” with the state court judgment. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). “A claim is inextricably intertwined if it would effectively nullify the state court judgment, or it succeeds only to the extent that the state court wrongly decided the issues.” Id.(internal quotation marks and citation omitted). The doctrine does not apply, however, where “the plaintiff had no reasonable opportunity to raise his federal claim in state proceedings.” Powell v. Powell, 80 F.3d 464, 467 (11th Cir. 1996)(internal quotation marks omitted). We have explained that “[a] claim about conduct occurring after a state court decision cannot be either the same claim or one `inextricably intertwined’ with that state court decision, and thus cannot be barred under Rooker-Feldman.” Target Media Partners v. Specialty Mktg. Corp.,881 F.3d 1279, 1286 (11th Cir. 2018).

The Supreme Court has cautioned that the scope of the Rooker-Feldman doctrine is narrow and “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp.,544 U.S. at 284. The doctrine is inapplicable if the federal action was commenced before the state proceedings ended. Nicholson v. Shafe, 558 F.3d 1266, 1274-75 (11th Cir. 2009). State proceedings end, for purposes of the Rooker-Feldmandoctrine when: (1) “the highest state court in which review is available has affirmed the judgment below and nothing is left to be resolved,” (2) “the state action has reached a point where neither party seeks further action,” or (3) “the state court proceedings have finally resolved all the federal questions in the litigation, but state law or purely factual questions (whether great or small) remain to be litigated.” Id. at 1275 (internal quotation marks omitted). As to the second scenario, a state proceeding ends when the losing party allows the time for appeal to expire. Id. Conversely, state proceedings remain pending when “the losing party . . . does not allow the time for appeal to expire (but instead, files an appeal).” Id. It follows that state proceedings have not ended if an appeal from the state court judgment remains pending at the time that the plaintiff files the federal case. In this circumstance, if the state appellate court affirms the lower court’s judgment afterthe federal case is filed, the federal court retains jurisdiction. Id. at 1279 n.13.

This case does not fit completely the Rooker-Feldman mold. We agree with the bankruptcy court and district court that the Rooker-Feldman doctrine barred the Bertrams’ claims that sought to invalidate the state court’s final foreclosure judgment. The state proceedings related to the final foreclosure judgment ended for purposes of the Rooker-Feldman doctrine when the state trial court entered the judgment and the Bertrams did not appeal, which was years before the Bertrams filed their adversary proceeding in the bankruptcy court. See id. at 1275. Because the state court proceedings as to the final foreclosure judgment had ended when the adversary proceeding complaint was filed, the Bertrams could not sue in federal court to invalidate that judgment. See id. at 1274-75.

The Rooker-Feldman doctrine does not bar all of the Bertrams’ claims, however. A close reading of their complaint shows that some of the Bertrams’ claims arose out of HMSI’s conduct with regard to the foreclosure sale. Because these claims are about conduct that occurred after the final foreclosure judgment was entered and the time for appeal expired, they cannot be barred under the Rooker-Feldmandoctrine. See Target Media Partners, 881 F.3d at 1286.

We acknowledge that the Bertrams also litigated issues related to the foreclosure sale in state court when they filed an objection to the foreclosure sale. At the time that the Bertrams brought the adversary proceeding, the state court had overruled their objection and the Fourth District Court of Appeal had affirmed the trial court. But the Fourth District Court of Appeal had not yet issued the mandate. Because the mandate had not issued, the state action had not yet reached a point where neither party sought further action, meaning the state court litigation challenging the foreclosure sale had not yet ended. See Nicholson, 558 F.3d at 1275. It is true that this litigation was pending when the Fourth District Court of Appeal issued its mandate, bringing an end to the state court litigation challenging the foreclosure sale. The Rooker-Feldman doctrine does not bar the Bertrams’ claims challenging the foreclosure sale because the doctrine “cannot spring into action and vanquish properly invoked subject matter jurisdiction in federal court when state proceedings subsequently end.” Id. at 1275 n.13.

The Bertrams nonetheless urge us to conclude that the bankruptcy court erred in applying the Rooker-Feldman doctrine because, they contend, the debt they owed to HMSI was discharged in Beresford’s Chapter 7 case. This argument rests on the premise that the debt the Bertrams owed to HMSI was unsecured. The problem is that in raising this argument the Bertrams seek to nullify the state court’s final foreclosure judgment, which necessarily involved a determination that HMSI had a valid mortgage on the property. The Rooker-Feldman doctrine bars this attempt to relitigate issues that were decided by the state court. See Casale,558 F.3d at 1260. Because we must accept that the Bertrams’ debt to HMSI was secured by a mortgage interest, we reject the Bertrams’ argument that the bankruptcy court’s Chapter 7 discharge extinguished HMSI’s right to foreclose on the mortgage debt. See Johnson v. Home State Bank, 501 U.S. 78, 82-83 (1991)(recognizing that a Chapter 7 discharge extinguishes only the debtor’s personal liability on the debt, not the right to foreclose on the mortgage).

The Bertrams also argue that the bankruptcy court erred in relying on the Rooker-Feldman doctrine because a bankruptcy court is authorized to abstain from hearing a case only when abstention is authorized under 28 U.S.C. § 1334(c). This provision states that “nothing in this section prevents a district court in the interest of justice, or in the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding under title 11 or arising in or related to a case under title 11.” 28 U.S.C. § 1334(c)(1). We reject the Bertrams’ interpretation because nothing in this provision bars a bankruptcy court from abstaining from hearing a particular proceeding under the Rooker-Feldmandoctrine.[2]

We thus conclude that the Rooker-Feldman doctrine bars some but not all of the Bertrams’ claims. We emphasize that our opinion today addresses only the applicability of the Rooker-Feldman doctrine, not whether HMSI has other defenses to the Bertrams’ claims, and we offer no opinion about whether the Bertrams’ claims will ultimately succeed on the merits.

IV. CONCLUSION

We hold that the Rooker-Feldman doctrine barred only the Bertrams’ claims related to whether HMSI could foreclose on the mortgage, not their claims related to HMSI’s conduct when the property later was sold. We thus affirm the district court’s order affirming the bankruptcy court’s dismissal of the Bertrams’ claims challenging the final foreclosure judgment. But we reverse the district court’s order affirming the bankruptcy court’s dismissal of the Bertrams’ claims related to the foreclosure sale. We remand the case to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

[1] All citations in the form “Doc. #” refer to the district court docket entries.

[2] The Bertrams raise a litany of other arguments about why the bankruptcy court erred in granting the motion to dismiss. All of these arguments lack merit. For example, they argue that HMSI’s motion to dismiss constituted a non-core matter, meaning the bankruptcy court had to issue proposed findings of fact and conclusions on law on the motion to dismiss. Because the bankruptcy court instead issued an order granting the motion to dismiss, the Bertrams argue that we must vacate. But the Bertrams conceded in the bankruptcy court that their adversary complaint raised a core proceeding. It was thus appropriate for the bankruptcy court to follow the procedures that apply to core proceedings in deciding the motion to dismiss.

 

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‘Zombie foreclosures’ just won’t die

‘Zombie foreclosures’ just won’t die

Fox 5-

Zombie foreclosures – abandoned houses that are hung up somewhere in the foreclosure process – seem to be the problem that just won’t die. And even though the problem is getting better nationally, Georgia is still haunted with way too many of these “haunted houses.”

 Here to help you protect yourself is real estate expert John Adams.

Currently, close to 1.5 million single-family homes and condos are vacant, representing 1.52% of all homes nationwide. That’s down from 1.58% at this time in 2017. This is according to ATTOM DATA SOLUTIONS. But just because the problem is getting better nationally doesn’t mean it is going away anytime soon.  There are problem pockets across the U.S., and Georgia is among them.

[FOX 5]

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TFH 11/11 | Ten Common Misstates That Many Homeowners and Even Many of Their Attorneys Continue To Make in Defending Foreclosures

TFH 11/11 | Ten Common Misstates That Many Homeowners and Even Many of Their Attorneys Continue To Make in Defending Foreclosures

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 – November 11, 2018

Ten Common Misstates That Many Homeowners and Even Many of Their Attorneys Continue To Make in Defending Foreclosures

.

 ———————

 

On past shows John and I have identified many of the mistakes that homeowners and their counsel have been committing while defending against state and federal foreclosures, often resulting in eviction.

Today we highlight and summarize ten such major common mistakes that are still dominant today which, properly understood, could save your home, including the following:

1. Foreclosure litigation is not a static but a dynamic sport, success in which intellectual battle requires an ever changing awareness and constant understanding that nothing is preordained.

2. The outcome of your case will depend not necessarily upon what the law is, but who your judge is, including your adjusting to his or her past decisions and institutional pay grade.

3. Success in foreclosure litigation depends upon basing your arguments in court not upon generalizations but upon your specific facts, and primarily upon the controlling judicial decisions in your jurisdiction and not elsewhere except as used as persuasive authority.

4. Homeowners in foreclosure need to avoid most Internet foreclosure defense advice, any use of generalized foreclosure defense forms, reliance alone on forensic audits, paying for assistance in preparing loan modification applications, and all deceptive mortgage rescue scams.

5. Foreclosure defendants need to avoid being overcome by a dead beat psychosis, blaming yourself for the foreclosure, and causing divorce, depression, illness, drug addiction, and even suicide, when in fact most foreclosures are usually not entirely or even partially a homeowner’s fault.

6. You should marshal your financial resources to delay or to defeat eviction whatever your goal may be, filing a Chapter 7 bankruptcy petition only as a last resort and only if evicted unless needing earlier to discharge other debts.

7. Do not make a fool out of yourself in court by arguing unavailing defenses, such as the Justice Mahoney defense, the copyrighted name defense, the Hawaiian Kingdom or Spanish Land Grant defense, the Postal Court defense, the Admiralty Law defense, and/or the DC defense.

8. Do not consider a loan modification as a gift, but as your federal right and your lender having a duty to grant you one, and specifically document both the contents and the timing of your loan modification application with witnesses’ signatures properly notarized, and when turned down internally appeal and if necessary thereafter sue.

9. Do not file lengthy memoranda of law in court. Winning based on “the weight of the evidence” does not mean how much your papers weigh. Get right to the point. Many judges typically only will read the first few pages and eye scan the rest. Avoid defending with empty labels like “fraud” and “predatory lending” and “robo-signer,” which unless fully explained and documented mean nothing by themselves and will turn away your judge.

10. Do not agree to stipulate or accept any fact submitted by your lender. Deny every material fact. Make your lender prove with evidence based on personal knowledge every material burden of its required proof, including its having sent you an accurate notice of default and to the correct address, the contents your loan general ledger, and its standing to bring the foreclosure action against you.

Listening to today’s show hopefully will save many more homes from foreclosure. One might be yours.

Please remember that most of the Nation (except Hawai’i which remains on standard time) went back to standard time last week.

As a result, The Foreclosure Hour is now heard live one hour earlier on most of the Mainland on iHeart Radio on the Internet, which live show however repeats itself streaming the following hour on iHeart Radio for those who missed our live broadcast.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

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He never missed a payment, but the bank still foreclosed on his home anyway

He never missed a payment, but the bank still foreclosed on his home anyway

WLTX-

Marcus Green knows the stress and anger of a customer-service nightmare.

The repetitive phone calls to a string of service agents, each telling him something different.

Letters demanding a resolution that never comes.

He also knows what it’s like when what’s at stake is his most important possession: his home.

“They said, ‘Oh, yeah, we’re gonna get this house.’ I said, ‘You’re going to get this house?’ They said, ‘Yeah.’ I said, ‘Well, is there anything I can do? Is there anyone I can talk to?’ They say, ‘No,’” Green said.

Green sued his mortgage lender, Chase Home Finance, after the bank foreclosed on his New Orleans East home in 2011. Chase tried to take the house shortly after Green rebuilt it using flood insurance proceeds from Hurricane Katrina, and Green’s attorney, Marc Michaud, argues in court filings that Chase committed fraud to justify foreclosing on him.

[WLTX]

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Wells Fargo Executives Knew How Screwed Up Their Car Insurance Program Was for Years: Lawsuit

Wells Fargo Executives Knew How Screwed Up Their Car Insurance Program Was for Years: Lawsuit

JALOPNIK-

Bank scandals, electric-vehicle production, carmakers spending cash like a kid with too big of an allowance, recall investigations and how the midterm elections affected legislators who deal with the auto industry. All of that and more in The Morning Shift for Wednesday, Nov. 6, 2018.

1st Gear: Here Comes the “You Knew About It” Lawsuit

The new Wells Fargo “re-established in 2018” commercials are all nice and “We’re sorry we screwed up” and all, but its scandals extend wide and far. Just get a load of this one: Reuters reports that a new lawsuit alleges Wells Fargo executives knew how bad the bank’s auto-insurance program was for years.

Our big breakdown on the Wells Fargo insurance scandal is here, but, to be quick: The bank forced around 800,000 people to purchase insurance they didn’t need along with their car loans, pocketing millions that it’s now having to pay back. Wells Fargo called it “collateral protection insurance,” or CPI.

[JALOPNIK]

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Wells Fargo now estimates that about 545 homeowners lost their homes after they were “incorrectly denied” a loan modification or deemed ineligible to apply.

Wells Fargo now estimates that about 545 homeowners lost their homes after they were “incorrectly denied” a loan modification or deemed ineligible to apply.

CNN-

Wells Fargo has identified 145 more customers whose homes were foreclosed on because of an apparent computer glitch.

The embattled bank first revealed a disastrous “calculation error” in its mortgage modification underwriting tool in August.
Wells Fargo (WFC) said in a filing on Tuesday that an expanded review found additional “errors” that inflated estimates of attorneys’ fees for homeowners in the foreclosure process.
Legal fees are taken into account when banks determine if customers qualify for mortgage modifications or repayment plans. Wells Fargo said homeowners were not actually charged the inaccurate attorney costs.
[CNN]
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1st Cir. Confirms Rooker-Feldman Barred Borrower’s State and Federal Law Claims

1st Cir. Confirms Rooker-Feldman Barred Borrower’s State and Federal Law Claims

Lexology-

The U.S. Court of Appeals for the First Circuit recently affirmed dismissal of a borrower’s state and federal law claims, concluding that the trial court lacked jurisdiction under the Rooker-Feldman doctrine, because the borrower’s federal suit sought to invalidate the state courts’ judgments.

A copy of the opinion in Klimowicz v. Deutsche Bank National Trust Company is available at: Link to Opinion.

After a borrower defaulted on her mortgage loan, the assignee to the borrower’s mortgage (“mortgagee”) filed a petition in the Massachusetts Land Court to foreclose the mortgaged property. Final judgment was entered in the mortgagee’s favor, and the property was sold to the mortgagee at a foreclosure sale.

The mortgagee then turned to the state’s county Housing Court and filed a summary process action to evict the borrower, who in turn filed a counterclaim. After lengthy motion practice, and challenges to the validity of the mortgage assignment, the mortgagee was eventually awarded possession of the property. The borrower’s appeal of the final judgment in the eviction action was dismissed for failure to post bond.

[LEXOLOGY]

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TFH 11/4 | Ten Major Myths Versus Realities in Foreclosure Litigation

TFH 11/4 | Ten Major Myths Versus Realities in Foreclosure Litigation

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 – November 4, 2018

Ten Major Myths Versus Realities in Foreclosure Litigation

.

 ———————

 

John and I been discussing on past shows the increasing yet frustratingly slow changes in favor of homeowners taking place today in foreclosure litigation in many States, particularly in Hawaii which developments we highlighted on last week’s show.

Mainly responsible for all of these changes are shifting public and judicial attitudes regarding the archaic unfairness of an ancient common law foreclosure system, largely inherited from English law.

Those of us committed to reversing so many still entrenched attitudes unfairly harming homeowners can ultimately only succeed if we openly challenge such misguided received legal traditions, in effect, amounting to historical brainwashing, improperly hiding behind such doctrines as stare decisis and res judicata.

In doing so, we must expose and openly challenge at least ten major myths underlying those entrenched attitudes, which are the subject of today’s show, including the following departures from reality:

Myth # 1: Foreclosure defendants want a free house.

Myth #2: Foreclosure auctions produce fair sale prices.

Myth #3: Recorded loan documents are trustworthy.

Myth #4: Foreclosures promote market stability.

Myth #5: Foreclosure defendants have no standing to challenge securitized trust documents.

Myth #6: Stare Decisis and Res Judicata cannot be challenged in foreclosure litigation.

Myth #7: Attorney affirmations have evidential weight.

Myth #8: Mortgage and Trust Deed Notes are negotiable instruments.

Myth #9: The mortgage follows the note.

Myth #10: Foreclosure judges are dishonest.

Listen to this Sunday’s show to match reality against these ten major myths.

And please remember that most of the Nation (except Hawai’i which remains on standard time) goes back to standard time today.

As a result, The Foreclosure Hour will now be heard live one hour earlier on most of the Mainland on iHeart Radio on the Internet, which live show however repeats itself the following hour on iHeart Radio as well for those who missed our live broadcast.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

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Posted in STOP FORECLOSURE FRAUD1 Comment

RENALDO vs DEUTSCHE BANK NATIONAL TRUST | FL 4DCA – we find that the Bank failed to prove compliance with the condition precedent of mailing Borrowers a default notice as required by paragraph 22 of the mortgage. Thus, we reverse and remand for the trial court to enter an order of involuntary dismissal.

RENALDO vs DEUTSCHE BANK NATIONAL TRUST | FL 4DCA – we find that the Bank failed to prove compliance with the condition precedent of mailing Borrowers a default notice as required by paragraph 22 of the mortgage. Thus, we reverse and remand for the trial court to enter an order of involuntary dismissal.

Renaldo vs Deutsche Bank National Trust by DinSFLA on Scribd

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Deutsche Bank National Trust Company, etc. v. Noll | Florida’s Second DCA Clarifies on Standing if New Case is Commenced While the Clerk Possesses the Note

Deutsche Bank National Trust Company, etc. v. Noll | Florida’s Second DCA Clarifies on Standing if New Case is Commenced While the Clerk Possesses the Note

JD SUPRA-

On October 31, 2018, Florida’s Second District Court of Appeal recently distinguished two of its prior opinions and held that a foreclosure plaintiff does not lose its standing as a holder of a negotiable instrument if it surrenders a promissory note to the clerk of court for purposes of obtaining a foreclosure judgment, and later re-files the action without retaking possession of the note from the clerk.

Two prior opinions from the Second District Court of Appeal, Partridge v. Nationstar Mortgage, LLC, 224 So. 3d 839 (Fla. 2d DCA 2017) and Geweye v. Ventures Trust 2013-I-H-R, 189 So. 3d 231 (Fla. 2d DCA 2016) were often misinterpreted by foreclosure defense counsel as holding that a foreclosure plaintiff that surrenders the note and mortgage somehow loses the necessary standing to commence a new foreclosure action.

However, in the opinion issued in Deutsche Bank National Trust Company, etc. v. William Noll, 2D16-5635, the Second District Court of Appeal clarified its prior opinions, stating that:

“At issue in Partridge was a purported assignment of the mortgage, but not the note, after the original note was filed with the court in the prior foreclosure action instituted by a different plaintiff. Geweye, on which this court relied in Partridge, did not address whether the plaintiff had standing at the inception of the action. Rather, the court held that the substituted plaintiff lacked standing to enforce the note at the time of trial despite the original note having been in the court file because the evidence established the mortgage, but not the note, had been assigned to the plaintiff. This case does not turn on the effectiveness of a post-commencement assignment after the original note was surrendered to the clerk.” (internal citations and quotations omitted)

[JD SUPRA]

165635_39_10312018_08570471_i by DinSFLA on Scribd

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