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

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:

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]

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]

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

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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Great Job Gary Dubin Law Offices!

CAAP-16-0000806sdo by DinSFLA on Scribd

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]

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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181581_1709_11142018_09410550_i by DinSFLA on Scribd

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

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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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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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]

CNN-

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]

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

Renaldo vs Deutsche Bank National Trust by DinSFLA on Scribd

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