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TFH 2/17/19 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

TFH 2/17/19 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

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

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

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

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Sunday – February 17, 2019

Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

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This Sunday’s live broadcast first aired on The Foreclosure Hour when the nationwide fraudulent signing of mortgage assignments/notarizations and note allonges was first exposed due to the superior lawyering of several Florida attorneys.

Nevertheless, although at first drawing the attention of some astute judges, such as the late Judge Arthur Schack in New York, judicial attention to such outright forgeries and the falsely recorded and the falsely sworn and falsely notarized documents in court rapidly decreased as judges are said to have erroneously concluded that the infamous AG Settlement years ago had somehow compensated borrowers for such false loan documentation, which it obviously however did not.

The major investment banks then assured the AGs that they would correct and remove the fraudulent mortgage assignments and allonges. Of course, they did not, only compounding their fraud, this time also waged against the AGs.

As a follow-up to Professor Campbell’s discussion on our show last week, it seems appropriate to again place focus of all of the false documents still being allowed to be filed in court, lest we forget the incredibly blatant fraud perpetrated through robo-signing not only upon America’s mortgage borrowers, but also upon our courts, which has been instrumental in covering up what we and others have called “The Great Deception”.

And there is no better way of doing so than revisiting the startling video-taped admissions, exclusively broadcast by The Foreclosure Hour in 2014 despite constant threats against me personally of lawsuits, of some of America’s most prolific “robos,” as I like to call them, employed by one of America’s leading past false document manufacturers.

You may also view these exclusive videos on our website at www.foreclosurehour.com.

The next time your foreclosure Judge says he or she does not understand the significance of robo-signing as fraud and as perjury waged against borrowers and courts and recording offices, please ask your foreclosure Judge to view these videos.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

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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 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
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The Foreclosure Hour 12

 

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



Posted in STOP FORECLOSURE FRAUD0 Comments

Attorney Mark Stopa says he never wants to practice law again but the Florida Bar won’t let him retire

Attorney Mark Stopa says he never wants to practice law again but the Florida Bar won’t let him retire

Embattled foreclosure defense attorney Mark Stopa is seeking “permanent retirement,” in part to head of a hearing on new complaints against him.

Tampabay-

For months, embattled foreclosure defense attorney Mark Stopa fought for the right to keep practicing law.

Stopa now says he never wants to practice again — but can’t retire because the Florida Bar won’t let him.

In an unusual petition filed this month with the Florida Supreme Court, Stopa is seeking “permanent retirement” with no leave to apply for readmission to the Bar. The move is aimed in part at heading off a Jan. 22-24 hearing on several new Bar complaints against him that include allegations of fraud.

[TAMPABAY]

image: Mark-Stopa-DOUGLAS-R.-CLIFFORD-TIMES

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Posted in STOP FORECLOSURE FRAUD1 Comment

McGreevey wins: Veteran who alleged illegal foreclosure gets $125,000 settlement

McGreevey wins: Veteran who alleged illegal foreclosure gets $125,000 settlement

Oregon Live-

When Marine Jacob McGreevey returned home to Vancouver after four years in Afghanistan and Iraq war zones, the fight wasn’t over. No, McGreevey launched into more combat, this time against the company he claimed illegally foreclosed on his house.

This month, the Marine won. But he did so only after a powerful ally — the U.S. Department of Justice — joined the fight on his side.

New Jersey based PHH Mortgage last week agreed to pay $125,000 each to McGreevy and five other servicemembers it foreclosed on. The firm did so after the U.S. Department of Justice sued it for violating federal law when it grabbed the servicemembers’ homes.

[OREGON LIVE]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Venezia v. JP MORGAN MORTGAGE ACQUISITION CORP | FL 4DCA – Because the voluntary dismissal rendered appellants the prevailing party for purposes of attorney’s fees, we reverse.

Venezia v. JP MORGAN MORTGAGE ACQUISITION CORP | FL 4DCA – Because the voluntary dismissal rendered appellants the prevailing party for purposes of attorney’s fees, we reverse.

 

GEORGE P. VENEZIA and VICKY VENEZIA, Appellants,
v.
JP MORGAN MORTGAGE ACQUISITION CORP., Appellee.

No. 4D18-1278.
District Court of Appeal of Florida, Fourth District.
February 6, 2019.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Cymonie Rowe, Judge; L.T. Case No. 50-2014-CA-009993-XXXX-MB.

W. Trent Steele of Steele Law, Hobe Sound, for appellants.

Joseph B. Towne of Lender Legal Services, LLC, Orlando, for appellee.

PER CURIAM.

Appellants appeal an order denying their motion for attorney’s fees following JP Morgan’s voluntary dismissal of its foreclosure action. Because the voluntary dismissal rendered appellants the prevailing party for purposes of attorney’s fees, we reverse.

JP Morgan filed a foreclosure complaint against appellants. JP Morgan alleged it was entitled to enforce the note as the holder because it had physical possession of the note endorsed in blank. JP Morgan further alleged it was entitled to fees under the note and mortgage. A copy of the note attached to the complaint listed HomeBanc as the original lender and contained an endorsement in blank by HomeBanc.

Appellants filed an answer, raising standing as an affirmative defense. They also asserted entitlement to attorney’s fees.

After JP Morgan voluntarily dismissed its case without prejudice, appellants moved for attorney’s fees pursuant to the mortgage and section 57.105(7), Florida Statutes. JP Morgan opposed the motion, arguing that appellants could not recover fees because they denied JP Morgan was a party to the contract rather than proving JP Morgan was a party to the contract. During a hearing on the motion, appellants argued that “there’s no requirement on us to prove anything against—of the plaintiff’s case.” After the hearing, the trial court denied appellants’ motion for fees.

“[W]e review de novo a trial court’s final judgment determining entitlement to attorney’s fees based on a fee provision in the mortgage and the application of section 57.105(7).” Bank of New York Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d DCA 2017). Under section 57.105(7), unilateral attorney’s fees provisions in a contract are deemed reciprocal. See § 57.105(7), Fla. Stat. (2018). The entitlement to fees under section 57.105(7) applies when the party seeking fees prevails and is a party to the contract containing the fee provision. Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So. 3d 1112, 1115 (Fla. 3d DCA 2016).

In denying the motion for fees, the trial court relied on Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), quashed, SC17-1387, 2019 WL 98152 (Fla. Jan. 4, 2019). In Glass, after the bank voluntarily dismissed its appeal, this court denied the homeowner’s motion for appellate attorney’s fees because she prevailed on her lack of standing argument in the trial court.

During the pendency of this appeal, the Florida Supreme Court quashed Glassbecause a voluntary dismissal renders the opposing party the prevailing party for purposes of appellate attorney’s fees and because the bank maintained its right to enforce the contract in its appeal until the dismissal. 2019 WL 98152, at *2. The supreme court found that the determinative issue was the bank’s voluntary dismissal of the appeal, not the homeowner’s successful dismissal of the complaint at trial. Id. at *2. The supreme court recognized that while a party cannot recover appellate “attorney’s fees under a contract that has been found to have never existed,” a party can recover attorney’s fees “under a prevailing-party attorney’s fee provision contained therein even though the contract is rescinded or held to be unenforceable.” Id. at *4 (quoting Katz v. Van Der Noord, 546 So. 2d 1047, 1049 (Fla. 1989)). The supreme court concluded that a “contract clearly existed” in that case and that, even if the homeowner prevailed on her standing argument, the contract was merely unenforceable. Id.

In Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th DCA 2018), this court held that a borrower who had raised lack of standing as an affirmative defense was entitled to prevailing party attorney’s fees following the bank’s voluntary dismissal. This court reasoned that “[s]tanding was never litigated below and the trial court never made a finding that the bank or the borrower were not parties to the contract” and thus, “the borrower did not prevail on his argument that dismissal was required because the bank lacked standing to sue on the contract.” Id. See also Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, 43 Fla. L. Weekly D2742 (Fla. 4th DCA Dec. 12, 2018) (finding that a borrower who raised lack of standing as an affirmative defense was entitled to prevailing party attorney’s fees following the bank’s voluntary dismissal because “the parties never litigated the merits of [the bank’s] standing below, and the trial court never made a finding that the Borrower was not a party to the note or mortgage”); Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018) (stating that “proof of standing is not required to establish a contractual relationship between the parties”).

In the instant case, JP Morgan voluntarily dismissed its case and JP Morgan alleged in its complaint that it was entitled to enforce the note and mortgage. Significantly, there was never a judicial determination by the trial court that JP Morgan or appellants were not a party to the contract. Based on the foregoing authority, appellants were entitled to attorney’s fees. We therefore reverse and remand for the trial court to grant attorney’s fees and determine the reasonableness of the amounts sought.

Reversed and remanded with instructions.

WARNER and LEVINE, JJ., concur.

CIKLIN, J., dissenting with opinion.

CIKLIN, J., dissenting.

I respectfully disagree with the majority and would affirm.

In my opinion, the borrowers not only failed to prove entitlement to fees but went so far as to deny that they were required to offer any and all types of proof whatsoever which I believe § 57.105 requires as a prerequisite to being awarded reciprocal fees.

Not final until disposition of timely filed motion for rehearing.

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



Posted in STOP FORECLOSURE FRAUD0 Comments

Roussell v. BANK OF NEW YORK MELLON | FL 4DCA- AFFIDAVIT CHAOS, there is a conflict between the printout and the affidavit regarding the entity from whom Nationstar acquired the loan for servicing. A notation on the printout indicated that Nationstar acquired the loan from Specialized Loan Servicing, while the affidavit stated that Nationstar acquired the loan from Green Tree Servicing.

Roussell v. BANK OF NEW YORK MELLON | FL 4DCA- AFFIDAVIT CHAOS, there is a conflict between the printout and the affidavit regarding the entity from whom Nationstar acquired the loan for servicing. A notation on the printout indicated that Nationstar acquired the loan from Specialized Loan Servicing, while the affidavit stated that Nationstar acquired the loan from Green Tree Servicing.

 

SAMANTHA ROUSSELL, Appellant,
v.
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JP MORGAN CHASE BANK, N.A. AS TRUSTEE FOR STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2006-AR7 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR7, Appellee.

No. 4D17-3944.
District Court of Appeal of Florida, Fourth District.
February 6, 2019.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Senior Judge; L.T. Case No. 2017-CA-006417 (11).

Samantha V. Roussell, Doral, pro se.

Nancy M. Wallace of Akerman LLP, Tallahassee, and William P. Heller of Akerman LLP, Fort Lauderdale, for appellee.

PER CURIAM.

A homeowner appeals a final judgment of foreclosure entered in favor of The Bank of New York Mellon based on the bank’s motion for summary judgment. Because material issues of fact remain as to standing and the condition precedent of notice, we reverse and remand for further proceedings.

The bank filed a complaint against the homeowner for mortgage foreclosure and to reestablish a lost note. A copy of the note attached to the complaint listed America’s Wholesale Lender as the lender and did not contain any endorsements. The homeowner filed an answer and affirmative defenses, arguing that the bank lacked standing and failed to comply with the condition precedent of adequate notice concerning the default and acceleration.

The bank filed a lost note affidavit from an employee of the servicer, Nationstar Mortgage, LLC. The affidavit stated that the bank acquired the loan from the original lender, America’s Wholesale. The affidavit listed several transfers of servicing rights, ending with Nationstar. According to the affidavit, “[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar.”

The bank moved for summary judgment. The homeowner opposed the motion, arguing that the bank lacked standing and failed to comply with the condition precedent of notice. After a hearing, the trial court entered a final judgment of foreclosure.

An order granting summary judgment is reviewed de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). “Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009). “It is the moving party’s burden to show, conclusively, the absence of any genuine issue of material fact.” Patel v. Aurora Loan Servs., LLC, 162 So. 3d 23, 24 (Fla. 4th DCA 2014).

The homeowner raised the issue of standing as an affirmative defense. “Whether a party has standing to bring an action is a question of law to be reviewed de novo.” Joseph v. BAC Home Loans Servicing, LP, 155 So. 3d 444, 446 (Fla. 4th DCA 2015). A party seeking to enforce a lost note must establish, inter alia, that it was “entitled to enforce the instrument when loss of possession occurred, or has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred.” § 673.3091(1)(a), Fla. Stat. (2017).

The bank failed to satisfy the requirements of section 673.3091(1)(a). The affidavit from the bank’s servicer stated that “[t]he Note was lost by the prior holder of the note, and prior to the transfer to Nationstar,” the current servicer. Notably, the affidavit is unclear as to who lost the note because the affidavit does not state the identity of the prior noteholder. One could infer the prior noteholder was the servicer immediately prior to Nationstar, Green Tree Servicing LLC. However, it is also possible that the original lender, America’s Wholesale, was the prior holder of the note.

A computer screenshot attached as an exhibit to the affidavit purported to evidence the bank’s receipt of the note from America’s Wholesale. However, the screenshot did not contain any reference to America’s Wholesale. Additionally, the screenshot reflected an assignment by EMC Mortgage Corporation, but there is no indication in the affidavit or elsewhere in the record of this entity’s relation to the note and mortgage. Further, the screenshot listed Countrywide as the prior servicer, but the bank’s affidavit, which allegedly listed all prior servicers, made no mention of Countrywide.

Another exhibit to the affidavit, a computer printout, purported to show that the prior holder of the note was in possession of the note when the loss occurred. However, nothing in the exhibit indicates the identity of the prior holder of the note or when the loss occurred. Further, there is a conflict between the printout and the affidavit regarding the entity from whom Nationstar acquired the loan for servicing. A notation on the printout indicated that Nationstar acquired the loan from Specialized Loan Servicing, while the affidavit stated that Nationstar acquired the loan from Green Tree Servicing. These inconsistencies and conflicts, coupled with the vagueness regarding who lost the note, give rise to material issues of fact as to the bank’s standing.

Material issues of fact also exist as to the bank’s compliance with conditions precedent. “A plaintiff . . . must either factually refute any alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment before being entitled to a summary judgment of foreclosure.” Patel, 162 So. 3d at 24. The homeowner raised a legally sufficient defense by alleging that the bank failed to comply with the condition precedent of notice. See Fla. R. Civ. P. 1.120(c). The bank did not factually refute this defense. As such, summary judgment must be reversed and the case remanded for further proceedings. See Patel, 162 So. 3d at 25Frost, 15 So. 3d at 906.

Reversed and remanded for further proceedings.

WARNER, CIKLIN and LEVINE, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Posted in STOP FORECLOSURE FRAUD0 Comments

Grosso v. HSBC BANK USA, NA | FL 4DCA- We reverse because the voluntary dismissal rendered the homeowner the prevailing party for purposes of attorney’s fees.

Grosso v. HSBC BANK USA, NA | FL 4DCA- We reverse because the voluntary dismissal rendered the homeowner the prevailing party for purposes of attorney’s fees.

DOMENIC GROSSO a/k/a DOMENIC L. GROSSO, Appellant,
v.
HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP., Appellee.

No. 4D17-2874.
District Court of Appeal of Florida, Fourth District.

February 6, 2019.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Susan R. Lubitz, Senior Judge; L.T. Case No. 50-2012-CA-005882-XXXX-MB.

Michael Vater, Kendrick Almaguer, and Peter Ticktin of The Ticktin Law Group, PLLC, Deerfield Beach, for appellant.

Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, for appellee.

PER CURIAM.

The homeowner appeals an order denying his motion for attorney’s fees following the bank’s voluntary dismissal of its foreclosure action. We reverse because the voluntary dismissal rendered the homeowner the prevailing party for purposes of attorney’s fees.

HSBC Bank filed a foreclosure complaint against the homeowner, alleging it was the owner and holder of the note and mortgage. HSBC further alleged it was entitled to attorney’s fees under the contract. A copy of the note attached to the complaint listed DB Home Lending LLC as the lender and the homeowner as the borrower. The note contained a specific endorsement by DB Home Lending to HSBC.

The homeowner filed an answer and affirmative defenses. In his affirmative defenses, the homeowner stated that the bank lacked standing, the bank did not have legal rights to enforce the note and mortgage, and the endorsement on the note was not valid and authentic. The homeowner also requested attorney’s fees.

A year after filing the complaint, HSBC voluntarily dismissed the case without prejudice. The homeowner moved for prevailing party attorney’s fees under the contract. Specifically, the homeowner alleged in the motion for attorney’s fees that “[t]he Mortgage that was the subject matter of this lawsuit provided for costs and expenses if the Note holder was to enforce the Note” and that section 57.105(7), Florida Statutes, made this provision applicable to the homeowner. HSBC opposed the motion, arguing that the homeowner’s lack of standing defense precluded him from recovering fees. After a hearing, the trial court denied the homeowner’s motion, finding that he failed to prove that he and HSBC were parties to the contract.

A trial court’s determination of whether a party is entitled to attorney’s fees based on a fee provision in the mortgage is reviewed de novo. Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d DCA 2017). Section 57.105(7), Florida Statutes, operates to make a unilateral attorney’s fees provision in a mortgage contract reciprocal. In order for a prevailing party to avail itself of section 57.105(7), both the movant and the opponent must be parties to the contract containing the fee provision. Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA 2017).

In denying the motion for fees, the trial court relied on Florida Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016). In Red Road Residential, the borrower maintained throughout the litigation, including in sworn discovery, that she never signed the mortgage. Id. at 1114. Rather than litigating its claim against the borrower, the bank ultimately dismissed her from the lawsuit with prejudice. Id. Unlike Red Road Residential, the instant case did not involve any sworn discovery and the dismissal was without prejudice.

In Glass v. Nationstar Mortgage, LLC, No. SC17-1387, 2019 WL 98152 (Fla. Jan. 4, 2019), the Florida Supreme Court held that a homeowner was entitled to prevailing party appellate attorney’s fees following the bank’s voluntary dismissal of its appeal, even though the homeowner had prevailed in the trial court. The supreme court found that the voluntary dismissal rendered the homeowner a prevailing party and that the bank had maintained its right to enforce the contract on appeal until the dismissal. Although the trial court’s dismissal was based on four possible grounds, “[e]ven if the trial court’s dismissal was based on lack of standing, it was not based on a finding that [the bank] did not hold the note but on a finding that [the bank’s] complaint was legally insufficient for failure to properly demonstrate the chain of title.” Id. at *4. The supreme court recognized that there is a difference between a non-existent contract, under which a party cannot recover fees, and a contract which is rescinded or unenforceable, under which a party can recover fees. Because a contract “clearly existed” in Glass but was merely unenforceable, the homeowner was entitled to appellate attorney’s fees. Id.

We find instructive Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018). In that case, a borrower was found to be entitled to prevailing party fees after the bank’s voluntary dismissal even though she had challenged the bank’s standing throughout the lawsuit. This court found that “the parties never litigated the merits of [the bank’s] standing below, and the trial court never made a finding that the Borrower was not a party to the note or mortgage.” Id. at *2. Because the bank voluntarily dismissed the action without the trial court resolving the standing issue on the merits, the borrower was entitled to fees. Id. See also Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th DCA 2018) (finding borrower who raised lack of standing as affirmative defense was entitled to prevailing party attorney’s fees following the bank’s voluntary dismissal because the parties never litigated standing and “the trial court never made a finding that the bank or the borrower were not parties to the contract”); Harris v. Bank of N.Y. Mellon, No. 2D17-2555, 2018 WL 6816177, at *4 (Fla. 2d DCA Dec. 28, 2018) (“[P]roof of standing is not required to establish a contractual relationship between the parties.”).

In this case, HSBC voluntarily dismissed its complaint, thus rendering the homeowner the prevailing party for purposes of attorney’s fees. Notably, the trial court never made a judicial determination that HSBC or the homeowner was not a party to the contract. Additionally, HSBC maintained in its complaint a right to enforce the contract. Significantly, the copy of the note attached to the complaint contained a specific endorsement by the original lender to HSBC and listed the homeowner as the borrower. This should be sufficient record evidence to demonstrate that HSBC and the homeowner were parties to the underlying contract so as to justify attorney’s fees pursuant to section 57.105(7). See Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4th DCA 2014) (implying that an evidentiary hearing is required for determining the amount of fees, not for determining entitlement to fees); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)(“A request for attorney’s fees should not result in a second major litigation.”).

The cases the dissent relies on are distinguishable, as none involve a voluntary dismissal without prejudice like the instant case. The dissent attempts to distinguish Rodriguez and Elkind by stating that those cases dealt with judicial estoppel or prevailing parties, and not with the burden for attorney’s fees. But cases with the same facts should get the same result. A voluntary dismissal, without a judicial determination, should allow reliance on the reciprocal attorney’s fees provision of section 57.105(7).

Based on the foregoing authority, the homeowner was entitled to prevailing party attorney’s fees. We reverse and remand for the trial court to grant attorney’s fees and determine the reasonableness of the amount sought.

Reversed and remanded with instructions.

LEVINE and FORST, JJ., concur.

CONNER, J., dissents with opinion.

CONNER, J., dissenting.

I respectfully dissent for two reasons: (1) the trial court properly determined that no evidence was presented by the homeowner establishing the homeowner and HSBC were parties to a contract with a fee provision; and (2) the case law relied upon by the majority is inapplicable to the specific argument made by HSBC in the trial court, which the trial court found to be dispositive.

Regarding the case law relied upon by the majority, I disagree that the recent supreme court opinion in Glass v. Nationstar Mortgage, LLC, No. SC17-1387, 2019 WL 98152 (Fla. Jan. 4, 2019), controls this case for the simple reason that Glass addressed an award of appellate attorney’s fees, whereas, the instant case involves an award of attorney’s fees at the trial level. More importantly, in Glass,the supreme court did not address the specific argument raised by HSBC, which the trial court found to be dispositive. Additionally, our recent opinions in Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018) and Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153 (Fla. 4th DCA 2018), are likewise inapposite because those opinions address issues concerning determination of a prevailing party and judicial estoppel, but they do not address the specific argument raised in the trial court by HSBC as to who has the burden of proof regarding a contractual relationship.

I respectfully submit the case law on the issue of attorney’s fees after a voluntary dismissal is confusing. In part, this is because appellate courts have frequently failed to articulate with precision the distinction in law between who is a “prevailing party” in litigation and who is a “party” to a contract. Moreover, standing, in the context of foreclosures, can be confusing because there are two phases of standing (at the time suit is filed and at the time of trial), which can be pertinent to determining who prevails on a legal issue. Additionally, the case law frequently fails to emphasize that promissory notes are a special specie of contracts, involving a special set of legal principles. For example, a person who does not properly obtain ownership a blank indorsed note can enforce it because he or she is in possession of it. See § 673.3011, Fla. Stat. (2018). Presumably, enforcement of the note with an attorney fee provision allows such possessor to also receive attorney’s fees. At first blush, it seems implausible to say a person who is not in the chain of ownership can be considered in privity with the maker of the note, however, simple possession of contract (the blank indorsed note) provides the privity, even though there is no meeting of the minds. I also submit that much of the confusion stems from a failure to properly analyze and apply legal principles regarding judicial estoppel.

The case law regarding entitlement to attorney’s fees after a voluntary dismissal has properly discerned that in terms of analysis, there is a difference between cases where the trial court has made evidentiary determinations regarding standing and cases where such evidentiary determinations have not been made. See Glass, 2019 WL 98152 at *3 (distinguishing the application of Bank of New York Mellon Trust Co. v. Fitzgerald, 215 So. 3d 116 (Fla. 3d DCA 2017) to the facts in Glass on the basis that there was an evidentiary determination in Fitzgerald that the bank did not prove it was a party to the contract); Rodriguez, 2018 WL 6528491 at *1; Elkind, 254 So. 3d at 1154. However, trial judges are frequently led down the wrong path by attorneys who fail to recognize the difference between who is the prevailing party in litigation and who has the burden of proof for entitlement to fees. More importantly, if a party to a suit seeks attorney’s fees pursuant to a contract clause, but is not in a contractual relationship with the opposing party in the suit from whom fees are sought, it is improper to award attorney’s fees based on the contract provision. Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130, 131 (Fla. 4th DCA 2003) (“Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney’s fees under the mortgage.”); see also Gibson v. Courtois, 539 So. 2d 459, 460 (Fla. 1989) (determining that the fact that no contract was formed was dispositive on the issue of fees based on a contract provision); Fitzgerald, 215 So. 3d at 121 (“Because no contract existed between the parties, the trial court erred in awarding Fitzgerald attorney’s fees pursuant to section 57.105(7)[.]”); HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 1117 (Fla. 5th DCA 2016)(holding that a party cannot employ section 57.105(7) as a basis for fees after proving the opposing party never became a party to the contract).

In granting rehearing and denying fees to the homeowner in this case, the trial court relied upon Judge Scales’s insightful opinion in Florida Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016). There, the bank filed a voluntary dismissal after one of the defendants, Rios, filed a motion for fees as a sanction under section 57.105(1), Florida Statutes. Id. at 1114. After the voluntary dismissal, Rios moved for fees under both section 57.105(1) and section 57.105(7) (the contract reciprocity fee provision). Id. The trial court denied fees under section 57.105(1), but granted fees under section 57.105(7). Id.Notably, Judge Scales observed that “[a]s section 57.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision.” Id. at 1115 (emphasis added). After making the observation, the opinion goes on to explain:

Ada Rios does not appear to contest this proposition. Rather, in oral argument, she sought to distinguish the reasoning in Novastarv. Strassburger] by arguing that, in Novastar and other similar cases, the trial court actually adjudicated that the party seeking fees was not a party to the contract. Ada Rios points out that, in this case, the Bank voluntarily dismissed its lawsuit before such an adjudication occurred. Ada Rios argues that, as the prevailing party (by virtue of the Bank’s dismissal), she should be the beneficiary of the fact that her status as a mortgagor specifically was not adjudicated.

Not surprisingly, the Bank takes the contrary position in the form of this syllogism: because Ada Rios’s principal defense was that she was not a party to the mortgage, and because Ada prevailed, therefore, for the purposes of section 57.105(7), Ada Rios was not a party to the mortgage.

Regarding whether Ada Rios was a party to the mortgage, we note that both the Bank and Ada Rios take positions opposite to the positions they took before the Bank’s voluntary dismissal of Ada Rios from the lawsuit. While both the Bank and Ada Rios suggest that the other party should be estopped from making its respective argument about whether Ada was a party to the mortgage, we view the case not from the parties’ estoppel perspectives, but from the perspective of burden:

which party had the threshold burden of establishing whether Ada Rios was a party to the mortgage?

In our view, in order to avail herself of section 57.105(7)’s reciprocity, Ada Rios, as the prevailing party and movant seeking fees under the mortgage’s fee provision, had the threshold burden to plead and establish that she was a party to the mortgage containing the fee provision. Ada Rios’s status as the lawsuit’s prevailing party does not equate to Ada Rios being a mortgagor under the mortgage so as to trigger section 57.105(7)’s reciprocity provision.

Id. at 1115-16 (emphases added) (footnote omitted) (citations omitted). The Third District reversed the order awarding fees and remanded the case for further proceedings because “[t]he burden lies with the prevailing party to establish, as a threshold matter, her status as a party to the contract.” Id. at 1116. I agree with the Third District that in litigation seeking to enforce a contract (which includes foreclosure cases), establishing one party as the prevailing party in the suit does not necessarily establish that the prevailing party is also in a contractual relationship with the opposing party. See id.

In the trial court below, HSBC consistently argued in opposition to the homeowner’s motion for fees, as well as in support of its motion for rehearing, that in order to prove entitlement, the homeowner had the evidentiary burden of proving not only that the homeowner was the prevailing party, but also that the homeowner and HSBC were in a contractual relationship while the foreclosure suit was being litigated. The trial court granted fees to the homeowner, after initially determining that Red Road Residential was factually distinguishable from this case. HSBC moved for rehearing contending the trial court erred in its interpretation and application of Red Road Residential. After entertaining argument on the motion for rehearing, the trial court granted rehearing and specifically set a new evidentiary hearing on the fee motion. At the conclusion of the new hearing on the fee motion, the trial court found that

the Defendant [(the homeowner)] failed to prove that the Plaintiff [(HSBC)] and Defendant were parties to the note and mortgage. The Defendant’s Answer denied paragraphs 3, 4, & 5 of Plaintiff’s Complaint and Defendant’s Affirmative Defense asserted the Defendant [sic] did not have standing to file the Complaint. These assertions have not been overcome by evidence to show the Plaintiff and Defendants were parties to the Contract.

My review of the transcript of the hearing confirms that the homeowner presented no evidence that the homeowner was in a contractual relationship with HSBC. Thus, it appears the trial court’s finding was correct that there was no competent substantial evidence to support a determination that the homeowner and HSBC were parties to a contract which contained a provision of a fee award. Therefore, I contend that we have no legal basis to reverse the trial court. I disagree with the majority’s conclusion that the copy of the note attached to the complaint provided “sufficient record evidence to demonstrate HSBC and the homeowner were parties to the underlying contract so as to justify attorney’s fees pursuant to section 57.105(7).” Although on the issue of entitlement, it is not uncommon that stipulations, admissions in pleadings, and affidavits are frequently used, determinations on entitlement are not summary judgment proceedings, when entitlement is contested. In contested proceedings on entitlement, evidentiary hearings require proof by testimony, exhibits, or both.

In addition to arguing the homeowner was not entitled to attorney’s fees for failure to carry its burden and provide evidence of a contractual relationship, HSBC made arguments below and on appeal asserting the homeowner could not make a factual showing of entitlement based on principles of judicial estoppel. Such arguments were incorrect and distracting. Trial advocates are to be reminded:

In judicial proceedings, a party simply is not estopped from asserting a later inconsistent position (if that it can be called), unless the party’s initial position was successfully maintained.

Leitman v. Boone, 439 So. 2d 318, 322 (Fla. 3d DCA 1983).

I emphasize that judicial estoppel arguments in these fee cases are distracting, when the argument is inappropriate, for a reason. I said above that Elkind was inapposite for the disposition of this case. I was one of the panel members deciding Elkind. In going back and reviewing our analysis and the briefs submitted in that case, I now realize that a somewhat similar argument about the burden of proof in fee cases was made in Elkind, but the clarity of the argument was lost by infusing it with arguments about judicial estoppel and not as a stand-alone argument.

For the reasons I have discussed, I would affirm the trial court.

Not final until disposition of timely filed motion for rehearing.

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TFH 2/10 | Featuring Professor John Campbell Revealing the Behind the Scenes Causes of the Mortgage Crisis in America

TFH 2/10 | Featuring Professor John Campbell Revealing the Behind the Scenes Causes of the Mortgage Crisis in America

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 – February 10, 2019

Featuring Professor John Campbell Revealing the Behind the Scenes Causes of the Mortgage Crisis in America

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 ———————

 

If there is one central reason why courts have been unable to protect the statutory and constitutional rights of homeowners it is that the inter-workings of the securitized secondary mortgage market have remained largely hidden from judicial view.

Instead, almost all federal and state courts have continued unthinkingly to robotically apply laws and procedures strictly applicable to traditional mortgages, although asked to foreclose on homeowners whose loans have been placed to their detriment and without their knowledge or consent in a little understood non-traditional and unregulated underground banking casino.

Professor John Campbell of the University of Denver Law School is noted for his ability to communicate complex subjects with relative simplicity, and he has done so in an analysis of non-traditional mortgages which The Foreclosure Hour is pleased to play for our listeners this Sunday.

Professor Campbell describes in his helpful overview many of the disturbing features of non-traditional mortgages that John Waihee and I have discussed on past shows.

In addition to all of the sloppy and fraudulent practices that Professor Campbell identifies, John Waihee and I would add, first, that as described on earlier shows, the so-called homeowner “deadbeat’ is actually the only one, not the so-called lenders, with any money and property at risk, and, second, that the law that should be applied to non-traditional mortgages should not be general contract or real estate law, or the UCC, but securities laws.

That being said, it is ironically often that the foreclosing plaintiff, whether pretender lender or, behind the scenes, Fannie Mae or Freddie Mac, is actually the one seeking a free house, and not the homeowner facing foreclosure.

We invite and encourage our listeners and especially judges everywhere to listen to this Sunday’s show.

Professor Campbell’s entire presentation will also be available and in video format immediately after our Sunday show, attached to this Sunday’s recorded show posted in the “Past Broadcasts” section of our Website at www.foreclosurehour.com.

John Waihee and I are dedicated to the belief that the rights of homeowners facing foreclosure will never be adequately protected until everyone and most importantly our judges better understand the realities of non-traditional mortgages and the greed and abuses their hidden banking system inevitably generate.

Gary Dubin
_____________________
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

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 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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Justice Department Obtains $750,000 From PHH Mortgage Corp. for Unlawfully Foreclosing on Servicemembers’ Homes

Justice Department Obtains $750,000 From PHH Mortgage Corp. for Unlawfully Foreclosing on Servicemembers’ Homes

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Wednesday, February 6, 2019

Justice Department Obtains $750,000 From PHH Mortgage Corp. for Unlawfully Foreclosing on Servicemembers’ Homes

WASHINGTON –The Justice Department today announced that PHH Mortgage Corporation (PHH) has agreed to pay $750,000 to six servicemembers to resolve allegations that it violated the Servicemembers Civil Relief Act (SCRA) by unlawfully foreclosing on their homes without obtaining the required court orders.

“Our men and women in uniform deserve to be able to focus on their job of keeping our country safe without worrying about losing their homes to an unlawful foreclosure,” said Assistant Attorney General Eric Dreiband. “The Civil Rights Division is committed to protecting the rights of our servicemembers from unlawful conduct.”

“The brave men and women who serve in our nation’s armed forces frequently are required to deploy and serve overseas with little notice,” U.S. Attorney Craig Carpenito said. “This Office remains resolute in its commitment to honor their personal sacrifices when they do so by ensuring that servicemembers’ rights will be protected, as the law requires, whenever duty calls. This agreement ensures that servicemembers will be compensated for the damages they suffered when their homes were improperly foreclosed upon while they were serving our country.”

The SCRA prohibits foreclosing on the home of a servicemember during active military service and one year thereafter without a court order if the mortgage originated prior to the servicemember’s period of military service.

PHH is one of the United States’ largest mortgage loan servicers, operating nationwide. The New Jersey-based company also originates, sells and subservices residential mortgage loans.

The Department launched an investigation, which was handled jointly by the Department’s Civil Rights Division and the U.S. Attorney’s Office for the District of New Jersey, after it received a complaint in May 2016 through the Department’s Servicemembers and Veterans Initiative. The Department’s investigation revealed that PHH foreclosed on six homes of SCRA-protected servicemembers in violation of the SCRA between 2010 and 2012.

The agreement resolves a suit filed today by the United States in the United States District Court for the District of New Jersey.

The agreement requires PHH to pay $125,000 to each servicemember whose home was unlawfully foreclosed upon. The agreement also requires PHH to provide training to its staff to ensure that servicemembers do not face unlawful foreclosures in the future, and to notify the Department of future complaints regarding servicemembers’ rights.

The Department’s enforcement of the SCRA is conducted by the Civil Rights Division’s Housing and Civil Enforcement Section and U.S. Attorney’s Offices throughout the country. The SCRA provides protections for servicemembers in areas such as evictions, rental agreements, security deposits, pre-paid rent, civil judicial proceedings, installment contracts, credit card interest rates, mortgage interest rates, mortgage foreclosures, automobile leases, life insurance, health insurance and income tax payments. Since 2011, the Department has obtained over $468 million in monetary relief for servicemembers through its enforcement of the SCRA. For more information about the Department’s SCRA enforcement, please visit www.servicemembers.gov.

Servicemembers and their dependents who believe that their rights under the SCRA have been violated should contact the nearest Armed Forces Legal Assistance Program Office. Office locations may be found at http://legalassistance.law.af.mil/content/locator.php.

Individuals who believe their civil rights have been violated in the District of New Jersey may also file a complaint with the U.S. Attorney’s Office for the District of New Jersey at: http://www.justice.gov/usao-nj/civil-rights-enforcement/complaintor may call the U.S. Attorney’s Office’s Civil Rights Complaint Hotline at (855) 281-3339.

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Manhattan U.S. Attorney Announces Settlement Of Civil Fraud Claims Against Law Firm Rosicki, Rosicki & Associates, P.C., And Two Affiliates For Inflating Foreclosure- And Eviction-Related Expenses

Manhattan U.S. Attorney Announces Settlement Of Civil Fraud Claims Against Law Firm Rosicki, Rosicki & Associates, P.C., And Two Affiliates For Inflating Foreclosure- And Eviction-Related Expenses

Manhattan U.S. Attorney Announces Settlement Of Civil Fraud Claims Against Law Firm Rosicki, Rosicki & Associates, P.C., And Two Affiliates For Inflating Foreclosure- And Eviction-Related Expenses

Defendants Admit and Accept Responsibility for Their Conduct and Will Pay More Than $6 Million in Total to Resolve Claims

Geoffrey S. Berman, the United States Attorney for the Southern District of New York, Laura Wertheimer, Inspector General for the Federal Housing Finance Agency Office of Inspector General (“FHFA-OIG”), and Michael J. Missal, Inspector General for the U.S. Department of Veterans Affairs (“VA”) Office of Inspector General (“VA-OIG”), announced today the settlement of a civil fraud lawsuit against New York law firm Rosicki, Rosicki & Associates, P.C. (“ROSICKI”) and its wholly owned affiliates, Enterprise Process Service, Inc. (“ENTERPRISE”) and Paramount Land, Inc. (“PARAMOUNT”).  The settlement resolves the United States’ claims, asserted under the False Claims Act, alleging that ROSICKI used its affiliates, ENTERPRISE and PARAMOUNT, to systematically generate false and inflated bills for foreclosure-related and eviction-related expenses, and caused those expenses to be submitted to and paid for by the Federal National Mortgage Association, known colloquially as Fannie Mae.  The settlement also resolves claims arising from identical misconduct in connection with eviction-related expenses that were submitted to and paid for by the VA.  As part of the settlement approved by U.S. District Judge Jed S. Rakoff, ROSICKI, ENTERPRISE, and PARAMOUNT admitted and accepted responsibility for their conduct and must pay $4.6 million to the United States.  The settlement also requires ROSICKI to implement a compliance program with regular reporting over the next five years, and to publicly disclose the nature of its affiliation with ENTERPRISE and PARAMOUNT on its website.

Manhattan U.S. Attorney Geoffrey S. Berman said:  “Lawyers are not above the law.  For years, the Rosicki firm submitted bills to Fannie Mae and the VA that contained inflated and unnecessary charges.  This Office will continue to hold accountable those who seek to achieve profits by fraudulent conduct.”

FHFA-OIG Inspector General Wertheimer said:  “FHFA is committed to holding accountable those who waste, steal, or abuse the resources of FHFA or any of the entities it regulates.  We work with U.S. Attorneys’ Offices across the country to protect the interests of the American taxpayers in the housing government-sponsored enterprises and are proud to have partnered with the U.S. Attorney’s Office for the Southern District of New York on this matter.”

VA-OIG Inspector General Michael J. Missal said:  “This civil settlement should send a clear message to individuals and businesses that VA-OIG and its law enforcement partners will vigorously investigate and expose false claims that fraudulently impact programs designed to benefit our veterans and their families.”

ROSICKI is a New York law firm whose main practice area is mortgage foreclosures.  The two founding ROSICKI partners also own a number of affiliated entities, including ENTERPRISE, a service-of-process company, and PARAMOUNT, a title search company.  Fannie Mae approved ROSICKI to perform legal work in connection with foreclosures on residential properties for which Fannie Mae owned the mortgage loans.  Fannie Mae’s Servicing Guide required, among other things, that all foreclosure costs and expenses be “actual, reasonable, and necessary,” and that foreclosure law firms “must make every effort to reduce foreclosure-related costs and expenses in a manner that is consistent with all applicable laws.”  ROSICKI understood those requirements and represented at various times that the firm was complying with them.

In fact, as ROSICKI, ENTERPRISE, and PARAMOUNT have admitted, from 2009 through 2018, on certain invoices for service of process (i.e., delivery or attempted delivery of legal papers) in connection with foreclosures or evictions, ENTERPRISE added additional charges to the costs charged by independent contractors and otherwise took actions that increased costs and expenses.  Similarly, on certain invoices for foreclosure searches and title continuations, PARAMOUNT added additional charges to the costs charged by independent contractors and otherwise took actions that increased costs and expenses.  ROSICKI submitted those costs and expenses for payment, with the understanding that Fannie Mae would reimburse for them.

The settlement also resolves identical conduct by ROSICKI, ENTERPRISE, and PARAMOUNT pertaining to expenses attendant to evictions that ultimately were paid by the VA.

This case arose from a lawsuit filed by a whistleblower under the False Claims Act.  In March of this year, the United States intervened in the case and took over prosecution of some of the claims that the whistleblower asserted.  In a separate settlement agreement, ROSICKI, ENTERPRISE, and PARAMOUNT agreed to pay the United States an additional $1,518,000 to resolve separate False Claims Act claims pursued by the whistleblower, resulting in a total recovery to the United States of $6,118,000.

*                *                *

Mr. Berman thanked the FHFA-OIG and VA-OIG for their efforts and ongoing support and assistance with the case.

The case is being handled by the Office’s Civil Division.  Assistant U.S. Attorneys Cristy Irvin Phillips, Andrew E. Krause, and Joseph N. Cordaro are in charge of the case.

Topic(s):
False Claims Act
Press Release Number:
18-424
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In a Case of First Impression, the Ninth Circuit Begins to Unravel the Mystery of When a Claim to Enforce a Rescission Request under TILA May be Time-Barred

In a Case of First Impression, the Ninth Circuit Begins to Unravel the Mystery of When a Claim to Enforce a Rescission Request under TILA May be Time-Barred

JD SUPRA-

An action by a Washington state borrower to enforce a request for rescission of a loan under the Truth in Lending Act (TILA) is analogous to an action to enforce a contract and must be brought within the Washington state statute of limitations for such a contract claim, given that TILA itself does not provide a limitations period.  Hoang v. Bank of America, N.A., 2018 WL 6367268 (9th Cir. December 6, 2018).

To effect rescission of a loan under TILA, the borrower must notify the lender of her intent to rescind within three days, or if required disclosures are not given, three years of the loan’s consummation date; but the borrower need not bring a lawsuit to enforce its rescission request within that three-year period.  TILA does not specify when the borrower must bring the enforcement lawsuit.

So, to what limitations should a borrower, her lawyer, and the court look when the borrower has not brought the rescission suit within the three years?  “Without a statute of limitations in TILA, courts must first borrow the most analogous state law statute of limitations and apply that limitation period to TILA rescission enforcement claims.”  Id. at *1.  “Only when a state statute of limitations would ‘frustrate or significantly interfere with federal policies’ do we turn instead to federal law to supply the limitations period” to look for an analogous statute of limitations. Id. at *4.

[JDSUPRA]

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Floyd v. Bank of America, NA, | FL 5DCA- she is entitled to attorneys’ fees under section 57.105(7), Florida Statutes (2018), because she prevailed below by proving that while Appellee had standing at the time of trial, it lacked standing at the inception of the foreclosure suit.

Floyd v. Bank of America, NA, | FL 5DCA- she is entitled to attorneys’ fees under section 57.105(7), Florida Statutes (2018), because she prevailed below by proving that while Appellee had standing at the time of trial, it lacked standing at the inception of the foreclosure suit.

 

DANIELA FLOYD, Appellant,
v.
BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP AND MIDDLEBROOK PINES CONDOMINIUM ASSOCIATION, INC., Appellees.

Case No. 5D17-2712.
District Court of Appeal of Florida, Fifth District.
Opinion filed January 25, 2019.
Appeal from the Circuit Court for Orange County, Julie H. O’Kane, Judge.

REVERSED and REMANDED

Thomas Eross, Jr., and Kendrick Almaguer, of The Ticktin Law Group, PLLC, Deerfield Beach, for Appellant.

Jason D. Silver, of Greenspoon Marder, of Ft. Lauderdale, Roy A. Diaz and Adam A. Diaz, of SHD Legal Group PA, Ft. Lauderdale, for Appellee Bank of America, N.A., Successor By Merger to BAC Home Loans Servicing, LP F/K/A Countrywide Home Loans Servicing, LP.

No Appearance for Appellee, Middlebrook Pines Condominium Association, Inc.

HARRIS, J.

Appellant appeals the trial court’s final order denying her motion for attorneys’ fees following the involuntary dismissal of Appellee’s residential mortgage foreclosure action. Appellant argues that she is entitled to attorneys’ fees under section 57.105(7), Florida Statutes (2018), because she prevailed below by proving that while Appellee had standing at the time of trial, it lacked standing at the inception of the foreclosure suit. We agree. See Madl v. Wells Fargo Bank N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017); see also Glass v. Nationstar Mortg., LLC., 44 Fla. L. Weekly S100a (Fla. Jan. 4, 2019); Harris v. Bank of N.Y. Mellon, 44 Fla. L. Weekly D141a (Fla. 2d DCA Dec. 28, 2018).

Therefore, we reverse and remand for entry of an order granting Appellant’s motion for attorneys’ fees.

ORFINGER and EDWARDS, JJ., concur.

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

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TFH 2/3 | 10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening? (Rebroadcast from 7/2/17)

TFH 2/3 | 10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening? (Rebroadcast from 7/2/17)

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 – February 3, 2019

10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening? (Rebroadcast from 7/2/17)

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 ———————

 

We have learned that several foreclosure trial and appellate judges nationwide are now listening to The Foreclosure Hour. As a result, we decided to rebroadcast our July 2, 2017 show once again in the hope that the Judiciary could better understand that reforming the foreclosure system would yield incredible benefits for our legal system as well,

Many of our listeners have concluded that foreclosure judges are either politically corrupt protecting their private pensions or just plain stupid.

The Foreclosure Hour believes otherwise, that most foreclosure judges are historically simply misinformed or perceive themselves bound by archaic case precedents, while equally or more so understandably concerned about their enormous foreclosure case backlogs.

For, not only has mortgage and trust deed law become enormously complicated with the advent of securitized trusts, but the size of judicial residential foreclosure case backlogs has sharply gyrated up and down in recent decades in virtually all state and federal courts.

Starting approximately between 1990 and 2000, for instance, and escalating after the 2008 Mortgage Crisis, in many state and federal jurisdictions the number of judicial foreclose filings rapidly increased, annoyingly becoming the majority of all cases in many courts, with dramatically mushrooming case backlogs, which forced many courts irrationally to adopt in arguably wrongly perceived self-defense either openly or in effect the “rocket docket” processing of many residential foreclosure cases.

Federal courts, moreover, adopted in response what they openly called a “triage” approach, instructing U.S. Magistrates frankly to force foreclosure settlements, planned at a meeting of U.S. Magistrates years ago in San Francisco.

Thereafter, U.S. Magistrates frequently threatened homeowners that otherwise their assigned federal district judges would rule against them, which is what usually happened — anything to cut their foreclosure backlogs which in truth were restricting the time available for all other cases, often deemed more important by federal judges.

And when Fannie Mae and Freddie Mac, in order to save money and speed up foreclosures, instructed foreclosure attorneys in many states by 2000 to elect nonjudicial foreclosures instead, many courts expressed a deep sigh of relief as if a tsunami had turned back and away from them, and matter-of-factly closed their collective eyes to abuses in the unsupervised nonjudicial foreclosure process.

Today in many state court jurisdictions there is emerging an increased awareness of the unacceptable abuses in nonjudicial foreclosure sales as well as within securitized trust judicial foreclosure litigation, with increased appellate restrictions being imposed almost daily upon judicial and nonjudicial foreclosing plaintiffs alike, raising the specter once again of increasing foreclosure case backlogs, surely soon to threaten a possibly new self-defensive retreat by state courts away from protecting homeowner rights.

To hopefully counter this reverse trend which we are already increasingly witnessing, with many lower courts outright ignoring homeowner friendly appellate court decisions in their own jurisdictions, The Foreclosure Hour presents again its 10 ways in which courts could easily cut their foreclosure case backlogs by more than 95% while increasing, not decreasing, protections for homeowners.

Yes, it is possible. Listen and learn how. Tune in to this Sunday’s rebroadcast, or those of you watching the Super Bowl can listen in when the Game is over, when the show’s audio is immediately posted on the “Past Broadcasts” section of our Website, www.foreclosurehour.com.

Judges especially listening this Sunday and Legislators also will be pleasantly surprised, for problems are often not our problem, but the real problem is in the way we relate to problems. And the foreclosure system is a classic example of that aspect of what on past shows we have termed the Rule Ritual.

Gary Dubin
_____________________
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

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 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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Homeowners in government mortgage programs remain at risk of unnecessary foreclosure

Homeowners in government mortgage programs remain at risk of unnecessary foreclosure

The Hill-

One aspect of the recent government shutdown that has received too little attention is that it significantly increased the risk that thousands of struggling homeowners across the nation would lose their homes. For example: in California, an elderly woman who recently lost her husband is on the verge of losing her family home due to the shutdown. Her lender wrongfully denied her for a deferral program designed to protect certain newly widowed spouses from foreclosure and eviction, but the Housing and Urban Development (HUD) representative who was helping her was furloughed during the shutdown. Even though the shutdown has ended, this widow is still facing foreclosure in February unless HUD takes action to address cases like hers that have piled up while critical agency resources were unavailable.

Sadly, this is not an isolated example. Over 9 million borrowers, most of them low-income, seniors, and/or residents of rural areas, have home mortgages that are either provided or insured by government mortgage programs run by HUD or the Department of Agriculture (USDA). Because key departments at both agencies were operating at drastically reduced capacity or not at all for over a month, thousands of homeowners could not get the help they needed to save their homes. Some may already have undergone foreclosure, and many remain at risk as HUD and the USDA reopen with a substantial backlog of requests for assistance. Unnecessary foreclosures on HUD and USDA borrowers will not just impact vulnerable homeowners; they will also lead to needless losses to the agencies’ mortgage insurance funds.

But HUD and the USDA can prevent further serious damage by taking a few simple steps: First, they should extend or waive any foreclosure-related deadline by at least 35 days. Second, they should issue a stay on foreclosures until they clear the backlog of pending requests for assistance. Third, they should direct lenders to rescind any foreclosures that occurred during the shutdown. And, in the event of another shutdown, the agencies should hit the pause button on foreclosures and related deadlines as they should have done during the recent shutdown.

[THE HILL]

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WELLS FARGO BANK v COLE | HAWAII ICA – ANOTHER VICTORY FOR DUBIN LAW OFFICES!

WELLS FARGO BANK v COLE | HAWAII ICA – ANOTHER VICTORY FOR DUBIN LAW OFFICES!

2185459498 by on Scribd

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PA Class action lawsuit claims Seterus used unlawful debt collection practices

PA Class action lawsuit claims Seterus used unlawful debt collection practices

Pennsylvania Record-

A home owner has filed a class action lawsuit against Seterus Inc., a specialty mortgage service company, citing alleged violations of the Fair Debt Collection Practices Act, violations of the Pennsylvania Fair Credit Extension Uniformity Act, and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law.

Kay Wenger filed a complaint on behalf of herself and others similarly situated on Dec. 18 in the U.S. District Court for the Middle District of Pennsylvania against Seterus Inc., alleging the specialty mortgage service uses unlawful and unfair debt collection practices to collect upon residential consumer mortgage loans.

According to the complaint, the plaintiff alleges that on April 1, 2016, her mortgage was transferred to Seterus while in a state of default.

[PENNSYLVANIA RECORD]

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FL CLASS ACTION | Lawsuit says Seterus falsely threatens foreclosure to collect debt

FL CLASS ACTION | Lawsuit says Seterus falsely threatens foreclosure to collect debt

Reuters-

IBM’s mortgage servicing business Seterus has been hit with a proposed class action in Florida accusing it of trying to intimidate homeowners into paying delinquent amounts by making false ultimatums to foreclose on their homes.

Filed on Friday in Ft. Myers federal court, the lawsuit said as many as thousands of Florida homeowners received letters from Seterus falsely warning they could lose their homes if they did not pay the entire amount overdue on their loans. Seterus, which services defaulted mortgage loans for Fannie Mae, is being sold to Mr. Cooper Group, parent company of mortgage lender and servicer Nationstar Mortgage Holdings, IBM announced earlier this month.

[REUTERS]

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Association of Apartment Owners of Terrazza/Cortebella/Las Brisas/Tiburon v. Lopez | HI ICA- The Judgment of Possession and Writ of Possession Are VACATED!

Association of Apartment Owners of Terrazza/Cortebella/Las Brisas/Tiburon v. Lopez | HI ICA- The Judgment of Possession and Writ of Possession Are VACATED!

H/T to DUBIN LAW OFFICES & for their win!

4486141241 by on Scribd

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TFH 1/27/19 | Listeners Forum #2: What the Legal System Can Learn from Our Listeners Regarding Why There Is Increasing Disrespect Among This Nation’s Homeowners and Their Families for Our Legal System

TFH 1/27/19 | Listeners Forum #2: What the Legal System Can Learn from Our Listeners Regarding Why There Is Increasing Disrespect Among This Nation’s Homeowners and Their Families for Our Legal System

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 – January 27, 2019

Listeners Forum #2: What the Legal System Can Learn from Our Listeners Regarding Why There Is Increasing Disrespect Among This Nation’s Homeowners and Their Families for Our Legal System

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 ———————

 

The toxic effects of the Mortgage Crisis of 2008 continue to devastate America’s homeowners despite the daily cosmetology of a generally uncaring legal system.

There is no greater evidence of this urgent crisis of confidence in our legal system than the barrage of voice mail messages that John and I receive almost daily, detailing the continuing horrific abuses of America’s homeowners.

Today John and I share with you a representative sample of some of these recorded complaints in the own words of our listeners, detailing the failures of our legal system:

1. There is little if any competent legal help available to homeowners facing foreclosure and those lawyers venturing into this field are frequently met with sanctions, suspension, and disbarment in return.

2. The foreclosure laws and procedures are so complicated that they are incomprehensible to lay persons and often even to system professionals themselves.

3. The legal system is so expensive that most homeowners cannot afford to retain legal counsel even if they could find competent legal counsel, which tips the scales of justice in favor of those who can afford prolonged litigation.

4. America’s law schools have not and most still do not train law students in foreclosure defense, as most law professors are themselves ignorant regarding such homeowner rights.

5. Congress and state legislatures fail to monitor the consequences of the consumer laws they enact, despite their assumed best of intentions.

6. Most federal and state court judges are not only ignorant of the inner workings of securitized trusts, but responding to the crush of court backlogs caused by foreclosure calendars appear to believe or want to believe that homeowners in foreclosure are just deadbeats and therefore not entitled to otherwise customary evidential and procedural rights.

7. The American media generally ignores the financial slaughter of homeowners, only occasionally highlighting individual cases represented too often as oddities without reporting how widespread such abuses actually are.

8. Our Judges too often are oblivious to appearances of impropriety when owning directly or indirectly ownership interests in financial entities.

9. Regulators levying billions of dollars in fines as the result of found predatory lending practices, that total however a mere fraction of all of the money literally stolen by investment banks and securitized trusts, make no adequate efforts to ensure that any of the money ever reaches abused homeowners.

10. The foreclosure system often lacks compassion, evicting homeowners without regard to time to move, protection of their personal property, their health, their pets, or their general welfare.

Only when homeowners fully understand the widening scope of these underlying problems and abuses and as individual homeowners that they are not alone, and only when they then unite, will needed reforms ever emerge, whether or not in time to save this Nation from internal collapse under the weight of such abuses of mainly America’s shrinking middle class.

Join John and me this Sunday and listen to the complaints of America’s homeowners for yourself.

Gary Dubin

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Host: Gary Dubin Co-Host: John Waihee

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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

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The Foreclosure Hour 12

 

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Foreclosure King Wilbur Ross to Government Employees Affected by Shutdown “LET THEM EAT CAKE”

Foreclosure King Wilbur Ross to Government Employees Affected by Shutdown “LET THEM EAT CAKE”

CNBC-

Commerce Secretary Wilbur Ross said Thursday on CNBC that government employees affected by the shutdown should simply take out personal loans to cover their expenses. That advice is “completely out of touch with reality,” wealth manager and bestselling author David Bachtells CNBC Make It.

Around 800,000 federal employees face the prospect of missing yet another paycheck Friday as the partial government shutdown will enter its 35th day. Each employee has already missed more than $5,000 in wages on average, The New York Times estimates, so many have had to get creative to meet their financial responsibilities. Some have opted to cancel autopay on their bills, skip seeing the doctor, or even sell their car.

Hundreds are also turning to local food pantries and shelters to feed their families. One Chicago-based food pantry told the Chicago Tribuneit had helped 130 federal employees since the shutdown started, while a Utah-based organization estimated it had given out supplies to 280 federal employees.

[CNBC]

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Schiff, Waters plan joint Deutsche Bank investigation

Schiff, Waters plan joint Deutsche Bank investigation

“The interesting thing about Deutsche Bank is they seem to be pretty much the only entity out there willing to lend to The Trump Organization.”

 

Politico-

Two powerful House committee chairs are planning a joint investigation into German lending giant Deutsche Bank, which is under scrutiny from Democrats over its business dealings with President Donald Trump.

House Intelligence Chairman Adam Schiff and Financial Services Chairwoman Maxine Waters coordinating oversight of the bank, which also faces questions about its role in money laundering schemes.

The two California Democrats have been talking about areas of interest for each committee and where there’s common ground, Schiff said in an interview.

“We’re going to work jointly,” he said. “We think we’ll be more effective doing it that way.”

[POLITICO]

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Non-Judicial Foreclosure and the FDCPA: How the Supreme Court’s Looming Decision in Obduskey v. McCarthy & Holthus LLP Could Affect Law Firms and Collections Agencies Alike

Non-Judicial Foreclosure and the FDCPA: How the Supreme Court’s Looming Decision in Obduskey v. McCarthy & Holthus LLP Could Affect Law Firms and Collections Agencies Alike

Lexology-

The United States Supreme Court heard oral argument in the case Obduskey v. McCarthy & Holthus LLP on January 7, 2019. The Court’s ruling in this case could have major implications for all organizations—including law firms—that utilize non-judicial foreclosure regarding defaulted mortgages.

The primary question in Obduskey is whether the Fair Debt Collection Practices Act (the “FDCPA”), 15 U.S.C. § 1692-1692p, applies to non-judicial foreclosures. There is currently a circuit split regarding this question: the Fourth, Fifth, and Sixth Circuits apply the FDCPA to non-judicial foreclosures, while the Ninth and Tenth Circuits have held that the FDCPA does not apply to non-judicial foreclosures. The Obduskey decision should resolve this split.

The FDCPA only applies to “debt collectors,” defined under the statute as any person who “regularly collects or attempts to collect, directly or indirectly, debts owed or due . . . another.” 15 U.S.C. § 1692(a)(6). This definition, however, has certain carve-outs and does not traditionally apply to parties who are seeking only to enforce a security interest without obtaining any payment (e.g. repossessing a car). In the foreclosure context, judicial foreclosure where the creditor is seeking a deficiency judgment has traditionally fallen under the rubric of the FDCPA, as actions taken in such a proceeding are to collect a monetary debt. With non-judicial foreclosure where no deficiency is sought, however, the question becomes murkier. Hence the circuit split.

[LEXOLOGY]

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Some Cities Are Cashing In On Homeowners’ Tax Debts, And Making Foreclosure More Likely

Some Cities Are Cashing In On Homeowners’ Tax Debts, And Making Foreclosure More Likely

WGBH-

Some cities in Massachusetts are cashing in on homeowners who have failed to pay tax bills by running auctions that pull in thousands of dollars more than they’re actually owed in taxes.

At Worcester’s annual auction last May, small tax lien debts of just a few hundred dollars routinely set off bidding wars from private investors who paid the city far more than a homeowner actually owed in unpaid taxes. The process may also make it more likely the homeowner will wind up in foreclosure.

City records show that private investors have paid Worcester more than $2.6 million in premiums in the last three years. Worcester only keeps that extra cash when the homeowner gets foreclosed on, and records from the city show Worcester has a balance of more than $900,000 in premiums paid to the city.

[WGBH]

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