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THE ROBINSON CASE HAS BEEN DOCKETED IN THE U. S. SUPREME COURT!

THE ROBINSON CASE HAS BEEN DOCKETED IN THE U. S. SUPREME COURT!

H/T Clouded Titles-

BREAKING NEWS —

The case of Daniel and Darla Robinson has now been docketed with the United States Supreme Court, Docket #16-1127.

The 66-page Writ of Certiorari can be viewed here: 1. Petition for Writ (re USCA9 Case No. 15-55347)

The key question presented here is:

Whether Respondent, Mortgage Electronic Registration Systems, Inc., which is identified in most mortgages and deeds of trust as a “beneficiary” or “nominee” of the lender, possesses an interest in a borrower’s property sufficient to establish Article III standing.

To date, MERS nor its parent, MERSCORP, which is also “MERS” according to Rule 1 § 1 of its own 2009 Membership Rules, has confused courts all over the country and the author of this post is encouraging everyone to contact their attorney or institution of higher learning to facilitate support for this Writ in the form of an amicus brief in support of the nation’s highest court accepting this Writ for official hearing and review by the Court.  The deadline, according to Supreme Court rules, is April 17, 2017 to have all submissions in.

[CLOUDED TITLES]

 

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DEATH Default Mortgage…. You die and your estate can KISS the house GOODBYE

DEATH Default Mortgage…. You die and your estate can KISS the house GOODBYE

h/t The Home Equity Theft Reporter

WTVR-

A family home was sold to the highest bidder Friday; it was an auction overshadowed by tears. Peggy Stroud wept as a bidder bought the home she grew up in on Urbine Road.

Stroud said the home is the place where her mother took her last breath, and her father was shot to death on the porch two years ago.

For months after his death, Stroud says she paid the bank her dad’s mortgage, nearly $8,500 total.

She was stunned to learn that all of those payments still did not stop a foreclosure.

[WTVR]

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NY Fed president compares Wells Fargo fake account scandal to subprime mortgage crisis

NY Fed president compares Wells Fargo fake account scandal to subprime mortgage crisis

Housing Hire-

The president of the Federal Reserve Bank of New York told the Banking Standards Board in London on Tuesday that he sees quite a few similarities between the Wells Fargo fake account scandal and the subprime mortgage crisis of the late 2000’s.

New York Fed President William Dudley, in a speech entitled “Reforming Culture for the Long Term,” said that the goal-driven sales culture at Wells Fargo, which drove 5,000 of the bank’s former employees to open as many as 2 million accounts without authorization in order to get sales bonuses, reminded him of the environment that led to the mortgage crisis.

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Citibank, N.A. v Bravo | NYSC – the complaint is dismissed, with prejudice; the mortgage which plaintiff seeks to foreclose in this action is discharged and cancelled, the notice of pendency filed in this action is cancelled, and the Tompkins County Clerk is ordered to mark her records accordingly.

Citibank, N.A. v Bravo | NYSC – the complaint is dismissed, with prejudice; the mortgage which plaintiff seeks to foreclose in this action is discharged and cancelled, the notice of pendency filed in this action is cancelled, and the Tompkins County Clerk is ordered to mark her records accordingly.

Decided on March 7, 2017

Supreme Court, Tompkins County

 

Citibank, N.A., as Trustee for the registered holders of Bear Stearns Asset Backed Securities I Trust 2005-CL1, Asset-Backed Certificates, Series 2005-CL1, Plaintiff,

against

David Cullen Bravo a/k/a David S. Bravo Cullen; Christine Bravo Cullen a/k/a Christine A. Bravo Cullen, New York State Board of Elections, “John Doe, ” said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.

2013-0582

McCABE, WEISBERG & CONWAY, P.C.
By: Heino J. Muller, Esq.
Attorneys for Plaintiff
145 Huguenot Street, Suite 210
New Rochelle, New York 10801

THE CROSSMORE LAW OFFICE
By: Edward Y. Crossmore, Esq.
Attorneys for Defendants Bravo and Cullen
115 West Green Street
Ithaca, New York 14850
Phillip R. Rumsey, J.

“In June 2013, plaintiff commenced this foreclosure action on residential real property — mortgaged in January 2008 for about $82,600 — owned by defendants David Cullen Bravo and Christine Bravo Cullen (hereinafter collectively referred to as defendants) in the Town of Dryden, Tompkins County. Defendants answered asserting, among other things, that plaintiff was not the holder of the note. After a series of delays resulting primarily from conduct by plaintiff and its attorneys which prompted two preclusion motions by defendants, Supreme Court granted the second preclusion motion in December 2014.” Citibank, N.A. v Bravo, 140 AD3d 1434, 1435 (2016).

The trial court order dated December 2, 2014 (Mulvey, J.) precluded plaintiff “from offering at the trial of this action, or upon any dispositive motion made herein, proof of the indebtedness alleged in the complaint or that the plaintiff is the current holder of the note.” In affirming that order, the Appellate Division noted that plaintiff had engaged in a pattern of conduct which gave rise to an inference of willfulness sufficient to warrant the trial court’s imposition of the sanction of preclusion, specifically noting that

“among other things, plaintiff refused to appear for a deposition, canceled depositions at the last minute, missed a CPLR 3408 court-ordered mandatory conference, failed to comply with a court-ordered deposition deadline, and created confusion and delay with an inadequate and unclear effort to substitute counsel. With respect to plaintiff’s contention that it had the right as a corporation to determine who it would initially produce for a deposition, we note that defendants specifically named in their May 2014 demand the person who had executed an affidavit regarding the note and plaintiff failed to comply with the statutory requirement to, no later than 10 days prior to the scheduled deposition, notify defendants that another individual would instead be produced and the identity, description or title of such individual. Instead of giving timely notice to defendants, seeking a protective order or even producing a person it deemed knowledgeable, plaintiff simply refused to produce the named individual resulting in the failure to comply with the court-ordered date for conducting the deposition.” Citibank, N.A. v Bravo, 140 AD3d 1435-1436 (quotation and citations omitted).

Defendants now move for summary judgment dismissing the complaint, directing discharge and cancellation of the mortgage that the plaintiff seeks to foreclose in this action and directing cancellation of the notice of pendency, on the basis that the preclusion order prevents plaintiff from establishing the facts necessary to permit foreclosure of the mortgage. Notably, plaintiff did not at first directly oppose defendants’ motion; rather it moved for an order dismissing the action, without prejudice, and cancelling the notice of pendency, on the basis that it is not “able to verify compliance with pre-acceleration notice requirements” (Affirmation of [*2]Matthew Smith, Esq. dated December 19, 2016, ¶ 3).[FN1] Plaintiff has since, with leave of court, submitted a memorandum of law in opposition to defendants’ motion and defendants have filed a memorandum of law in response thereto.

Defendants accurately note that the preclusion order prevents plaintiff from establishing material elements of its cause of action for mortgage foreclosure, namely, its ownership of the debt instrument secured by the mortgage and of the debt purportedly due thereunder. Plaintiff argues that the dismissal of the action with prejudice is a drastic remedy disproportionate to plaintiff’s failure to provide disclosure that would cause it substantial prejudice and result in a windfall to defendants by permanently barring enforcement of the mortgage lien. In reply, defendants argue that dismissal of the action without prejudice would impermissibly allow plaintiff to avoid the adverse impact of the preclusion order.

The Court of Appeals has stated that “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]). In that regard, a motion for leave to discontinue an action without prejudice should not be granted where it would allow a party to circumvent an adverse determination of the court, such as an order of preclusion (see Baez v Parkway Mobile Homes, Inc., 125 AD3d 905 [2015], citing Kaplan v Village of Ossining, 35 AD3d 816, 816-807 [2006]; see also NBN Broadcasting Networks, 240 AD2d 319 [1997]). Notably, cases cited by plaintiff for the proposition that dismissals for failing to provide disclosure are not on the merits acknowledge that violations of a preclusion order merit the stronger sanction of dismissal on the merits (see e.g. Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985] [in holding that the dismissal of a prior case for failing to comply with a disclosure order, the Court noted that”[t]his is not a case such as Strange v Montefiore Hosp. & Med. Center (59 NY2d 737) where plaintiff’s second action constituted an attempt to circumvent an order of preclusion”]; Aguilar v Jacoby, 34 AD3d 706 [2006]; Stray v Lutz, 306 AD2d 836 [2003], lv dismissed 100 NY2d 615 [2003]).

Granting defendants’ summary judgment motion and dismissing the action on the merits is a drastic remedy; however, that course was charted when the Appellate Division affirmed that the preclusion order was an appropriate sanction for plaintiff’s own wrongful conduct. Indeed, it bears emphasizing that the decision of the Appellate Division was made in light of its prior decisions acknowledging that preclusion is a drastic remedy that may prevent a party from [*3]proving its claim,[FN2] and that dismissal on the merits is a proper sanction where a party willfully fails to provide disclosure or where an order of preclusion prevents a party from proffering evidence in support of its claims.[FN3]

Finally, the Practice Commentaries, with extensive attention to Citibank, N.A. v Bravo, 140 AD3d 1434, also conclude that enforcement of the preclusion order requires dismissal of this action on the merits (see Connors, 2017 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3126:8, 2017 Supp Pamph, at 282-283).

Based on the foregoing:

1. Defendants’ motion is granted and the complaint is dismissed, with prejudice; the mortgage which plaintiff seeks to foreclose in this action is discharged and cancelled, the notice of pendency filed in this action is cancelled, and the Tompkins County Clerk is ordered to mark her records accordingly.

2. Plaintiff’s motion is denied.

This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry (see CPLR 5513).

Dated: March 7, 2017
Cortland, New York
HON. PHILLIP R. RUMSEY
Supreme Court Justice

The following documents were filed with the Clerk of the County of Tompkins:

Notice of motion dated October 19, 2016.

Affidavit of Edward Y. Crossmore, sworn to October 12, 2016, with Exhibit A.

Affidavit of David Bravo Cullen, sworn to October 13, 2016, with Exhibits A-F.

Notice of motion dated December 19, 2016.

Affirmation of Matthew Smith, Esq. dated December 19, 2016, with Exhibits A-B.

Affidavit of Edward Y. Crossmore, sworn to December 28, 2016, with Exhibit A.

Reply affirmation of Heino J. Muller, Esq. dated January 6, 2017.

Original Decision and Order dated March 7, 2017.

Footnotes

Footnote 1:Plaintiff was represented at commencement of the action by Shapiro, DiCaro & Barak, LLC. Defendants filed their first motion to preclude on September 11, 2013 and duly served their motion papers on that firm. McCabe, Weisberg & Conway, P.C. appeared in opposition to that motion, representing that plaintiff had contacted that firm on September 15, 2013 to request that it represent plaintiff in this action (see Affirmation of Matthew Russell, Esq. dated November 4, 2013, ¶ 9). Defendants accurately noted that Shaprio, DiCaro & Barak, LLC remained attorneys of record for plaintiff. McCabe, Weisberg & Conway, P.C. has continued to represent plaintiff in the trial court at all times since September 2013, and a Consent to Change Attorney executed by plaintiff’s agent on May 8, 2014 was finally filed on June 19, 2014, nine months after McCabe, Weisberg & Conway, P.C. first attempted to appear on plaintiff’s behalf.

Footnote 2:See Citibank, N.A. v Bravo, 140 AD3d at 1435, citing BDS Copy Inks, Inc. v International Paper, 123 AD3d 1255, 1256 (2014) (the remedy of preclusion is drastic, especially where it has the effect of preventing a party from asserting its claim).

Footnote 3:See Citibank, N.A. v Bravo, 140 AD3d at 1435, quoting Doherty v Schuyler Hills, Inc., 55 AD3d 1174, 1176 (2008) (the answer was stricken and plaintiffs were awarded default judgment on the merits based on defendant’s willful failure to comply with disclosure demands) and citing Hesse Constr., LLC v Fisher, 61 AD3d 1143, 1144 (2009) (summary judgment was granted to plaintiff where defendant was unable to offer any admissible evidence due to a preclusion order); see also Du Valle v Swan Lake Resort Hotel, LLC, 26 AD3d 616 (2006) (summary judgment was properly granted to defendant who argued that a preclusion order prevented plaintiff from establishing her claim); Greaves v Burlingame, 12 AD3d 730 (2004), lv dismissed and denied 5 NY3d 741 (2005), lv dismissed 5 NY3d 742 (2005) (summary judgment was properly granted in plaintiff’s favor where preclusion order prevented defendant from submitting competent proof sufficient to raise a question of fact).

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Wells Fargo books plush resort for company meeting – and some shareholders aren’t happy

Wells Fargo books plush resort for company meeting – and some shareholders aren’t happy

The Charlotte Observer-

Florida’s Sawgrass Marriott Golf Resort & Spa offers the kinds of amenities you’d expect from a swanky venue overlooking the Atlantic coast: two championship golf courses, villas with private balconies, therapy baths and massage lessons.

It’s also where Wells Fargo will hold its annual meeting for shareholders next month, the San Francisco bank said in a regulatory filing last week. It will be the first such gathering since regulators fined Wells in September over its sales scandal.

But at a time when Wells is trying to move past the scandal, the choice of the Ponte Vedra Beach venue is sparking fresh criticism from shareholders already angered by revelations of its sales practices.

Read more here: http://www.charlotteobserver.com/news/business/banking/bank-watch-blog/article139225713.html#storylink=cpy

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TFH 3/19 | The Rule Ritual: Revealing for the First Time the Centuries Long Hidden Linguistic Origin of Rule Enterprise Reasoning Misleading Today’s Foreclosure Courts

TFH 3/19 | The Rule Ritual: Revealing for the First Time the Centuries Long Hidden Linguistic Origin of Rule Enterprise Reasoning Misleading Today’s Foreclosure Courts

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 –  March 19

The Rule Ritual: Revealing for the First Time the Centuries Long Hidden Linguistic Origin of Rule Enterprise Reasoning Misleading Today’s Foreclosure Courts
———————

The Foreclosure Hour this Sunday turns attention away from individual cases to share with listeners some original basic research.

We will for the first time anywhere reveal new insight into the foreclosure crisis by challenging the basic philosophy behind the traditional legal reasoning of American Courts and hence of the entire legal profession.

On this Sunday’s live show we will explore the deep-seated, heretofore unseen semantic causes of the foreclosure crisis and the even broader lessons we can learn from such basic research to improve the functioning of our entire legal system.

Surprisingly, few realize that centuries old foreclosure rules originally were designed to assist and to protect homeowners, yet today the very opposite is true.

Today’s show reveals fundamental flaws in the way all of us, most importantly our judges, have been viewing Rules, identifying an egregious error in legal reasoning endemic to our entire institutions of governance that not only has been instrumentally unfairly abusing homeowners, but which by transforming most of our judges into word robots is now threatening all of our governmental institutions.

We promise that listeners to this ground breaking show, including any judges, legislators and attorneys listening, will never view Rules in the same erroneous way ever again.

This new, accurate understanding of the difference between a “Rule” and a “Rule Statement” promises to ultimately impact our social sciences in the same way the splitting of the atom impacted our physical sciences.

Reminded that The Foreclosure Hour begins one hour later Pacific and Eastern time as most of the Mainland, unlike Hawaii, switches to Daylight Savings Time.

~

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

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Mahin Oskoui v. J.P. Morgan Chase Bank |  9th Circuit Finds Chase Falsely Promised Loan Modification To Borrower

Mahin Oskoui v. J.P. Morgan Chase Bank | 9th Circuit Finds Chase Falsely Promised Loan Modification To Borrower

FOR PUBLICATION

MAHIN OSKOUI, an individual, Plaintiff-Appellant,
v.
J.P. MORGAN CHASE BANK, N.A.; U.S. BANK, N.A., as Trustee, Successor in Interest to Bank of America, National Association as successor by merger to LaSalle Bank NA as Trustee for WAMU Pass-Through Certificates Series 2007-HY06 Trust Erroneously Sued As U.S. Bank, N.A., Defendants-Appellees.

No. 15-55457.
United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2017 — Pasadena, California.
Filed March 13, 2017.
Appeal from the United States District Court for the Central District of California; D.C. No. 2:12-cv-03511-FMO-AGR, Fernando M. Olguin, District Judge, Presiding.

Richard L. Antognini (argued), Law Office of Richard L. Antognini, Grass Valley, California, for Plaintiff-Appellant.

Richard P. Steelman, Jr. (argued) and Glenn J. Plattner, Bryan Cave LLP, Santa Monica, California, for Defendants-Appellees.

Before: Stephen S. Trott, M. Margaret McKeown, and Paul J. Watford, Circuit Judges.

SUMMARY[*]

Loan Modification

The panel reversed the district court’s summary judgment in favor of J.P. Morgan Chase Bank, N.A. in Mahin Oskoui’s action seeking damages she allegedly suffered when she unsuccessfully attempted to modify the loan on her home.

The panel held that the facts plainly demonstrated a viable claim under California’s Unfair Competition Law on the ground that Oskoui was a victim of an unconscionable process.

The panel also held that the district court erred in failing to acknowledge Oskoui’sclaim for breach of contract in her pro se complaint. The panel remanded with instructions to permit Oskoui to amend if necessary and to proceed with her complaint for a breach of contract.

The panel also remanded with instructions to permit Oskoui to amend her complaint to allege a right to rescind pursuant to Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015) (holding that the Truth in Lending Act gives a borrower the right to rescind certain loans), conditioned on Oskoui’s delivery of a rescission letter.

OPINION

TROTT, Circuit Judge.

Mahin Oskoui sued defendant J.P. Morgan Chase Bank, N.A. (“Chase”) for damages allegedly suffered when she unsuccessfully attempted over a two-year period to modify the loan on her home. Acting as her own attorney, she asserted inter alia claims for a breach of contract, “breach of implied covenant of good faith and fair dealings,” and a violation of California’s Unfair Competition Law (“UCL”), CAL. BUS. & PROF. CODE § 17200, the latter based on an assertion that she had been victimized by Chase’s unfair or fraudulent business acts or practices. She also attempted to sue Chase for a violation of 15 U.S.C. § 1601, the Truth in Lending Act (“TILA”). Without argument, the district court declined to consider Oskoui’s breach of contract claim and granted summary judgment to defendant Chase.

We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand.

I

In reviewing de novo the district court’s decision, we view the evidence in the light most favorable to the nonmoving party. Olson v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

In 1990, Mahin Oskoui, a registered nurse, purchased a single-family home for herself in Los Angeles, California. Her down payment on the property was $250,000. In 2007, the appraised value of the property was $1,250,000. On March 27, 2007, she refinanced her acquisition with a loan from Washington Mutual Bank (“WaMu”). As security, she executed a promissory note and a deed of trust securing the note with the property. At that time, WaMu was the United States’ largest savings and loan association until it imploded in 2008 during the subprime mortgage crisis and the collapse of the so-called “housing bubble.” In turn, this debacle triggered massive loan defaults and a severe national economic recession. The Office of Thrift Supervision closed WaMu on September 25, 2008, naming the Federal Deposit Insurance Corporation (“FDIC”) as WaMu’s receiver. On September 25, 2008, the FDIC transferred WaMu’s assets to defendant Chase.

In November 2008, Oskoui missed a loan payment, as did many homeowners in similar dire straits. In January 2009, not knowing about WaMu’s demise, she applied to WaMu for a loan modification. On May 21, 2009, Chase sent her a letter offering her a “Trial Plan Agreement.” The letter did not advise her of what was required of a borrower or of a loan for approval under the applicable modification rules, regulations, and guidelines. The letter did advise her that “[i]f you comply with all the terms of this Agreement, we’ll consider a permanent workout solution for your loan once the Trial Plan has been completed.” The only specified term of the Agreement was that Oskoui remit three equal payments of $3,280.05 to Chase between July and September 2009. Oskoui signed the Agreement on June 1, 2009.

Oskoui fully complied with the Agreement’s payment term by timely sending $9,840.15 to Chase, only to be informed on November 10, 2009, that she did not qualify “at this time” for a modification under either the federal Making Home Affordable Program (“HAMP”), 12 U.S.C. § 5219(a), or the Chase Modification Program (“CHAMP”) because “[y]our income is insufficient for the amount of credit you have requested.” Her monthly income during that period was $10,575.00. Chase gave Oskoui no additional reasons for its denial even though its internal paperwork reveals two others, each apparently fatal to her attempt to modify her loan. One barrier was the unpaid principal balance on the loan — $833,000 — which was higher than the amount allowed under the HAMP Guidelines. This factor rendered her ineligible for a HAMP modification. The other barrier, which made her ineligible for CHAMP relief, was the loan’s failure to satisfy Chase’s net present value test (“NPV”). Chase’s internal modification documents reveal that a person identified as “CHANG” determined on November 10, 2009 that Oskoui’s application should be rejected. The document says, “denied — income insufficient and did not pass the npv calc test.”

This test, which Chase did not reveal or explain in its November 10, 2009 letter, compares the NPV expected from a modification to the NPV of the unmodified loan. The test compares cash flow from the modification to the cash flow expected from the absence of a modification. If the cash flow from a viable modification exceeds that of a non-modified loan, HAMP requires a servicer to offer a modification to a borrower. If the NPV test generates a negative result, modification is optional.

Not only did Chase fail to advise Oskoui that she was not eligible for these modifications, it told her instead that “we may be able to offer other alternatives to help avoid the negative impact” of foreclosure and a deficiency judgment. Chase failed to explain what its “other alternatives” were or what Oskoui would be required to demonstrate to qualify for them.

Given this enticing invitation, Oskoui tried again, by submitting in January 2010 another application for a loan modification. She had no inkling that Chase had already determined that she was not eligible because of the amount of the unpaid balance of the loan and the NPV problems with it.

On March 1, 2010, Chase responded by letter to Oskoui’s new application. This letter said Chase “wants to help you stay in your home” and confirmed receipt and review of “your verification of income documentation.” Included with the letter were three payment coupons and three return envelopes, each coupon in the amount of $2,988.49, and due on April 1, May 1, and June 1, 2010. The March 1, 2010 letter also stated on the first page: “After successful completion of the Trial Period Plan, CHASE will send you a Modification Agreement for your signature which will modify the Loan as necessary to reflect this new payment amount.” (emphasis added). Chase said not a word about any concerns about her income and did not specify anything in that regard as a condition precedent to a modification. The March 1, 2010 letter says on page 2, however, that “[i]f all payments are made as scheduled, we will consider a permanent workout solution for your Loan.” This language on page 2, which is followed by bold type detailing the manner in which she should remit her payments, when read in the light of Chase’s promise on page 1 creates at best a misleading ambiguity. Page 2 attempts to temper what Chase offered and promised on page 1: a Modification Agreement for her signature. Once again, as with Chase’s November 10, 2009 letter, its March 1, 2010 letter, which Oskoui appended to her complaint as “Exhibit A,” failed to alert her to her apparent ineligibility for a modification.

The next event in this drawn-out process came as quickly as night extinguishes the day. On March 2, 2010, one day after Chase’s letter welcoming Oskoui for a second time to its Trial Period Plan (“TPP”) and acknowledging receipt of her income verification documents, Chase sent her another letter telling her for the first time that she was not eligible for a federal HAMP modification “because the current unpaid principal balance on your Loan is higher than the program limit. . . .” Not only did the letter omit any reference to the fatal NPV test, it said that Chase was “happy” to tell Oskoui that she “may be eligible for other modification programs” and that Chase may be able to offer “other alternatives” to stave off “the negative impact a possible foreclosure may have on [her] credit rating, the risk of a deficiency judgment. . . and the possible adverse tax effects of a foreclosure. . . .” Oskoui took these consequences as menacing threats, not friendly legal advice. Chase’s letter did not explain what its “other alternatives” were or what it would take to qualify for them. Also, Chase made no mention of the payments it had requested the previous day in its March 1, 2010 letter. Because Chase had left the door open to relief and even urged her to do so, Oskoui diligently made — and Chase accepted — her monthly payments as solicited, not just for three, but for seven months.

On October 1, 2010, Oskoui sent a $2,988.49 payment to Chase. Nevertheless, on October 25, 2010, a foreclosure notice appeared on her front door, listing a foreclosure sale date of November 18, 2010. Remarkably, Chase allegedly sent her another letter dated November 1, 2010 encouraging her to continue to seek a modification. Chase even told her she might “qualify for monetary incentives that will be used to pay down the principal balance of your loan if you make your modified payments on time.” At this point, Oskoui withdrew from the process. She was now $33,738.00 poorer with nothing to show for her efforts to comply with Chase’s requests.

In a signed pro se declaration submitted to the district court in connection with Chase’s motion for summary judgment, Oskoui explained her reluctance to continue the process any further.

Defendants’ actions have proven their lack of intention in modifying plaintiff’s loan and putting her through an intense, stressful 2 years of agony and fear of losing her home which was not an ethical or just thing to do. The [October] payment was the last one plaintiff made, and she had stopped following the modification program that seemed to be a way for Chase to extract more money with the only purpose in mind of “[s]elf-enrichment.” She had lost faith in Chase’s modification game and was also completely exhausted emotionally and physically between handling Chase’s never-ending documents requests, foreclosure threats, her highly demanding job as a registered [n]urse and daily life’s responsibilities. . . .

* * *

In fact, because of Plaintiff’s advanced age, the damage done by Defendants has been more severe than it might have been for a younger person. Since her profession requires emotional wellbeing in order to carry out her duty as RN. She felt less than qualified to deal with other people’s pain and life & death situations. After 2 long years of modification drama, she still was put through the horrors and nightmares of post foreclosure ordeal. Fear of homelessness, and embarrassment in the closely-knit homeowners’ community of her 25 year lived neighborhood. Not to mention the trauma of this litigation. All this, just because defendants’ insatiable appetite for ENRICHMENT.

On January 4, 2011 — two years after her first application — Chase sent Oskoui a final letter denying her application, stating, “We are unable to offer you a modification through the federal Home Affordable Modification Program (HAMP) or any Chase modification programs . . . because you did not provide us with the documents we requested.”

II

Notwithstanding Oskoui’s explanation of her understandable withdrawal from the exhausting two-year process, the district court granted Chase’s motion for summary judgment on the ground that she had failed in late 2010 to provide Chase with the “requested documentation to support her loan modification request.” The court declined to entertain her contractual claim because she had only “conclusorily” asserted that the “modification back-and-forth ripened into a contract with Chase” and remarked that she “sensibly” had not included a breach of contract claim in her first amended complaint.

III

In denying Chase’s Fed. R. Civ. P. 12(b)(6) motion to dismiss as to Oskoui’s UCL claim, Judge George Wu remarked that Oskoui had indeed presented the court with a viable claim under California law for a fraudulent and an unfair business practice. Citing Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1169 (9th Cir. 2012) (“A business practice is fraudulent under the UCL if members of the public are likely to be deceived.”), Judge Wu said,

Although Defendants express some uncertainty concerning the nature of Plaintiff’s claims, she expressly includes a claim for unfair business practices, which the Court presumes (and Defendants have presumed) refers to a claim under California Business and Professions Code § 17200. The Court can conceive of Plaintiff’s allegations satisfying both the “fraudulent” and “unfair” prongs of a section 17200 claim. If what Plaintiff alleges is true — that Chase’s left hand sought payments from Plaintiff pursuant to a plan designed to give her an opportunity to modify her loan while, notwithstanding Plaintiff’s payment in accordance with that plan, Chase’s right hand continued all along with foreclosureproceedings and both hands should have known from the start that Plaintiff’s loan would not be eligible for modification in any event — the Court can conceive of such allegations stating a section 17200 claim.

Minutes of Hearing on Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint, Oskoui v. JPMorgan Chase Bank, N.A., No. 2:12-cv-03511-FMO-AGR (C.D. Cal. Oct. 4, 2012), ECF No. 23 (footnote omitted).

We agree with Judge Wu’s analysis. The facts we have arrayed plainly demonstrate a viable UCL claim.

The published HAMP Guidelines disqualified Oskoui from HAMP relief. In an age of computerized records, Chase no doubt had this disqualifying information at its fingertips and could have made this simple determination within a matter of minutes. But instead of determining eligibility before asking for money — logical protocol called for by HAMP as of January 28, 2010 — Chase asked Oskoui for more payments. See Bushell v. JPMorgan Chase Bank, N.A., 220 Cal. App. 4th 915, 924 n.4 (Cal. Ct. App. 2013) (citing U.S. Dep’t of Treasury, HAMP Supplemental Directive No. 10-01 (Jan. 28, 2010)). And even when Chase told Oskoui the next day that she did not qualify for HAMP, it did not inform her of her precarious situation concerning unexplained “other alternatives,” preferring instead to accept payments for seven additional months.

Moreover, in Chase’s words, she was “not eligible” for proprietary CHAMP modification because her debt to income ratio was “well over the 31% limit.” Chase did not timely alert Oskoui to this problem or explain it in its March 2, 2010 letter. Two years after she began this journey and $33,738.00 out of pocket, Oskoui received nothing for her efforts. She argues that “[i]f Chase had told her she was not eligible for a loan modification, she never would have made those payments.” This option should have been hers to exercise.

It boils down to this. With its March 1, 2010 letter, Chase deceptively enticed and invited Oskoui into a process with the demonstrably false promise that a loan modification was within her reach if she were to make three monthly payments of $2,988.49 each. The next day — and for the first time — Chase eliminated a HAMP modification from its menu, but neither advised Oskoui what the CHAMP Guidelines required nor suspended additional payments until it could determine her CHAMP eligibility. Chase now says in its brief that the CHAMP Guidelines did not have the HAMP loan balance limitation, but conspicuous by its absence in Chase’s representation is any reference to the NPV test. Chase’s counsel suggested during oral argument that Chase had a valid reason for continuing the process as it did, i.e., that Oskoui’s income situation might have improved. On this record, any such expectation would have been patently unreasonable.

We can discern no acceptable utility in Chase’s alluring “other alternatives” strategy or tactics. Whether Chase’s Kafkaesque conduct was intentional or the result of corporate ineptitude — as suggested by Judge Wu — the result is the same: The facts in this record would amply support a verdict on this claim in Oskoui’s favor on the ground that she was the victim of an unconscionable process. Chase knew that she was a 68 year old nurse in serious economic and personal distress, yet it strung her along for two years, kept moving the finish line, accepted her money, and then brushed her aside. During this process, Oskoui made numerous frustrating attempts in person and by other means to seek guidance from Chase, only to be turned away.

IV

The district court erred in failing to acknowledge Oskoui’s claim for breach of contract in her pro se complaint. She explicitly styled her complaint on its first page as one for “BREACH OF CONTRACT AND BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALINGS.” On page 4, she averred that:

Once an offer of TPP was made to Plaintiff, Chase entered into a contract which was binding, superseding and implicitly having the effect of suspending the default condition that had existed between Plaintiff (alleged borrower) and Defendants. . . . Plaintiff successfully executed and met all terms outlined in the TPP and far exceeded all her obligations. . . . Plaintiff not only met all the financial obligations required by Chase but most importantly, provided ample documentation demonstrating her financial ability to qualify for a modification loan. . . .

On page 11, she said,

In the absence of a valid reason for refusing to modify, it can logically be inferred, through Defendant’s breach of the TPP contract, that it was simply extracting additional payments under the guise of a loan modification offer while still intending to foreclose.

Moreover, Oskoui attached to her complaint Chase’s March 1, 2010 letter containing its representation that upon her successful completion of the TPP, Chase “will send you a Modification Agreement for your signature which will modify the loan as necessary to reflect this new payment amount.”

The Seventh Circuit’s opinion in Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012), which we identified in Corvello v. Wells Fargo Bank, NA, 728 F.3d 878, 880 (9th Cir. 2013) (per curiam) as “the leading federal appellate decision” on this issue of contract, illuminates the viability of Oskoui’s claim. As in the case now before us, Wells Fargo argued in Wigod that its TPP language was not an enforceable offer because it was conditioned on Wells Fargo’s further review of Wigod’s financial information to ensure that she qualified under HAMP. Wigod, 673 F.3d at 561. The Seventh Circuit dismissed this contention as an unreasonable reading of the TPP. The court pointed out that the TPP spelled out two conditions precedent to Wells Fargo’s obligation to offer a permanent modification, and that Wigod alleged that she fulfilled both conditions. Id. at 560-61. The court refused to allow other language in the TPP to nullify Wells Fargo’s clear promise of an offer of a permanent modification if Wigod complied with its conditions. Id. at 562-63.

In Bushell, the California Court of Appeal identified Wigod as “provid[ing] guidance,” and it followed the Seventh Circuit’s approach to this issue. 220 Cal. App. 4th at 918-19. We also noted in Corvello that there is “no material difference” between California and Illinois law. 728 F.3d at 884.

Although its letter of November 3, 2010 thanks Oskoui for participating in the HAMP program, Chase now protests that it never offered a HAMP modification to Oskoui. There’s the rub. Once Oskoui made her three payments, Chase was obligated by the explicit language of its offer to send her an Agreement for her signature “which will modify the loan as necessary to reflect this new payment amount.” Chase did not call it either a HAMP agreement or a CHAMP agreement, just an “Agreement.” What program the Agreement was part of is irrelevant. Chase must abide by its own language. It did not live up to its promise. If Oskoui did not consider the offered modification to be acceptable, at that point she could have extracted herself from this aspect of her difficult situation instead of soldiering on towards a beckoning mirage.

Accordingly, we remand this issue to the district court with instructions to permit Oskoui to amend if necessary and to proceed with her complaint for a breach of contract. See Bushell, 220 Cal. App. 4th 915. See also Corvello, 728 F.3d 878; Wigod, 673 F.3d 547.

V

In her original complaint, Oskoui included a claim for a violation of the Truth in Leading Act. Judge Wu dismissed this allegation pursuant to Fed. R. Civ. P. 12(b)6 for failure to state a claim. Subsequently, the Supreme Court decided Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790 (2015). The Court held that TILA gives a borrower the right to rescind certain loans, and that this right may be exercised by a written notice from the borrower to the lender within three years after the consummation of the transaction. Oskoui now asks for leave to amend her operative complaint to articulate a claim for rescission. She asserts that she sent a TILA rescission letter to Chase in December 2009, within the three years required by the statute. 15 U.S.C. § 1635(f). Chase responds that its agreement with the FDIC protects it from any liability WaMu may have had in connection with its previous business. Oskoui says not so because she sent her rescission letter to Chase, not to WaMu.

This dispute is best resolved in the district court. Accordingly, we remand with instructions to permit Oskoui to amend her complaint to allege a right to rescind pursuant to Jesinoski. However, this permission to amend is conditional on her prompt delivery to the court of the “rescission” letter of December 2009 to which she refers in her brief.

REVERSED and REMANDED for further proceedings.

[*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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Wells Fargo CEO receives pay bump despite sales scandal

Wells Fargo CEO receives pay bump despite sales scandal

Reuters-

Wells Fargo & Co’s board of directors awarded Chief Executive Timothy Sloan $12.8 million for his work last year, a 17 percent increase, despite scrapping executive bonuses in light of an accounts scandal that rocked the bank last year, according to a proxy filing on Wednesday.

Sloan was CEO for only a few months in 2016. He took over after his predecessor, John Stumpf, resigned in light of revelations that thousands of Wells Fargo employees had opened perhaps millions of unauthorized customer accounts.

Sloan, 56, had been president and chief operating officer until October. Though his promotion came with a higher base salary and more long-term stock awards, his total package was less than the $19.3 million Stumpf received for 2015.

[REUTERS]

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Lobbying group says it will train bankers to become politicians

Lobbying group says it will train bankers to become politicians

NY POST-

Let’s get rid of the lawyers in Washington — and bring in the bankers.

That’s the pitch from a Wall Street lobbying group that represents the $17 trillion banking industry, which said Tuesday it’s launching a program to “help bankers run for office.”

The program — which will teach bankers everything from raising funds to kissing babies — is aimed at swelling banker ranks in elected state and federal positions, said Rob Nichols, CEO of the American Bankers Association.

[NY POST]

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New Jersey Carpenters Health Fund vs Royal Bank of Scotland Group Plc et al |  Another mortgage-crisis suit settles for pennies on the dollar – Wells Fargo, Royal Bank of Scotland and Deutsche Bank have reached a $165 million class-action settlement

New Jersey Carpenters Health Fund vs Royal Bank of Scotland Group Plc et al | Another mortgage-crisis suit settles for pennies on the dollar – Wells Fargo, Royal Bank of Scotland and Deutsche Bank have reached a $165 million class-action settlement

NY POST-

Big banks have cut yet another settlement from the mortgage crisis at pennies on the dollar.

Wells Fargo, Royal Bank of Scotland and Deutsche Bank have reached a $165 million class-action settlement of investor claims over their underwriting for the now-bankrupt subprime lender NovaStar Mortgage.

The truce resolves claims that offering materials prepared by the banks misled investors into believing that loans underlying roughly $7.55 billion of NovaStar mortgage-backed securities they bought were properly underwritten, and were safe.

[NY POST]

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Carty v. Bank of America, NA | FL 4DCA – a genuine issue of material fact was created by the two different versions of the note filed by the appellee bank

Carty v. Bank of America, NA | FL 4DCA – a genuine issue of material fact was created by the two different versions of the note filed by the appellee bank

GASTON CARTY and MARLENE J. CARTY, Appellants,
v.
BANK OF AMERICA, N.A., Appellee.

No. 4D16-635.
District Court of Appeal of Florida, Fourth District.

March 8, 2017.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 13-002348 (11).

Anthony J. Badway and Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellants.

Adam M. Topel of Liebler Gonzalez & Portuondo, Miami, for appellee.

PER CURIAM.

We reverse the summary final judgment of foreclosure because a genuine issue of material fact was created by the two different versions of the note filed by the appellee bank. Attached to the original complaint was a copy of the original note which contained three indorsements on the last page of the note. Attached to the amended complaint and to the summary judgment motion was a purported copy of the original note which contained two indorsements on the last page of the note and a third indorsement on an allonge. Appellants’ amended answer raised lack of standing as an affirmative defense and challenged the validity of the allonge. In support of its motion for summary judgment, the bank neither addressed the discrepancy between the notes nor countered the lack of standing defense.

Reversed and remanded.

GROSS, MAY and DAMOORGIAN, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Proposed Law Could Be a New Attack on Civil Rights, End Class Actions

Proposed Law Could Be a New Attack on Civil Rights, End Class Actions

NYT-

A chilling little bill is working its way through Congress. It could have the effect of ending the class action as an American institution.

The legislation, the Fairness in Class Action Litigation Act, passed the House last week. If it becomes law, it will be one more perverse disservice to the working class who are said to have driven the 2016 election, because the main losers will be ordinary Americans.

[NEW YORK TIMES]

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Fired VP of Wells Fargo branch files whistleblower lawsuit against bank

Fired VP of Wells Fargo branch files whistleblower lawsuit against bank

Santa Fe New Mexican-

After news broke last fall that Wells Fargo was caught creating fake accounts in the names of unsuspecting customers, the banking giant fired more than 5,000 employees, saying management was unaware these workers were gaming the system in order to meet performance quotas.

But Marc Tupler, a former vice president at the Santa Fe Wells Fargo branch on Washington Avenue at Paseo de Peralta, says his superiors knew exactly what was happening. Now he claims in a lawsuit that he was fired for raising the issue with his supervisors.

His suit in state District Court alleges wrongful discharge, malicious breach of contract, and intentional infliction of mental and emotional distress.

[SANTA FE NEW MEXICAN]

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Trump’s Plan on Fannie and Freddie? Clues May Emerge Soon

Trump’s Plan on Fannie and Freddie? Clues May Emerge Soon

An interesting sentence jumped out at me “The main plaintiff, the mutual fund company Fairholme Funds, argues that the government improperly seized private property when it stared diverting the profits.” 

I would say “the government improperly seized private property.”  That is likely what those documents will show – that Fannie was aware that it was illegally seizing private property.  The reason the profits were swept is that they were involved in thousands of lawsuits and one might just get through and drain the profits.  IMO: It is a RICO of the highest order. 

NYT-

Fixing Fannie Mae and Freddie Mac, the mortgage finance giants that still operate under government supervision, is nowhere near the top of the Trump administration’s to-do list. Since the election, administration officials, including Steven T. Mnuchin, the United States Treasury secretary, have said little about their plans for the companies.

But we will know a lot more in the coming weeks as circumstances compel Trump officials to show their hand. In essence, their action or inaction on two important matters will demonstrate whether they intend to follow the Obama administration’s approach to the companies — which was to keep them in federal conservatorship and drain them of capital — or take a different path, perhaps toward privatization.

One of the two action items on the horizon involves what should happen to the $10 billion in earnings that Fannie and Freddie together generated in the most recent quarter.

[NEW YORK TIMES]

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WELLS FARGO 2.0?!? | ‘I will do anything I can to make my goal’: TD teller says customers pay price for ‘unrealistic’ sales targets

WELLS FARGO 2.0?!? | ‘I will do anything I can to make my goal’: TD teller says customers pay price for ‘unrealistic’ sales targets

Bank employees say their jobs depend on upselling customers for products that can put them into debt

CBC-

Three TD Bank Group employees are speaking out about what they say is “incredible pressure” to squeeze profits from customers by signing them up for products and services they don’t need.

The longtime employees say their jobs have become similar to that of the stereotypical used car salesman, as they’re pushed to upsell customers to reach rising sales revenue targets.

They say there has always been a sales component to the job, but the demand to meet “unrealistic” quarterly goals has intensified in recent years as profits from low interest rates have dropped and banks became required — after the financial meltdown of 2008 — to keep more capital on hand to protect against a downturn in the market.

[CBC]

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Court denies motion for small Texas bank to intervene in PHH, CFPB case

Court denies motion for small Texas bank to intervene in PHH, CFPB case

HW-

State National Bank of Big Spring, Texas hit a major roadblock in its fight against the Consumer Financial Protection Bureau after a judge on Tuesday threw out its motion to intervene in the landmark case between PHH and the CFPB.

The motion was a new plan from the bank, along with Competitive Enterprise Institute, which advocates for limited government, and the 60 Plus Association, a nonprofit that represents the interests of senior citizens, to get its case heard by the court after being in limbo since about July 2016.

Back in 2012, State National Bank filed suit against the federal government, claiming that the CFPB’s “unprecedented, unchecked power” violates the Constitution’s separation of powers.

[HOUSING WIRE]

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Mortgage Resolution Servicing, LLC (“MRS”) v JP Morgan Chase |  Amended RICO Statement

Mortgage Resolution Servicing, LLC (“MRS”) v JP Morgan Chase | Amended RICO Statement

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

S&A CAPITAL PARTNERS, INC.,
MORTGAGE RESOLUTION SERVICING,
LLC; and 1ST FIDELITY LOAN
SERVICING, LLC,
Plaintiffs

v.

JPMORGAN CHASE BANK, N.A.,
JP MORGAN CHASE & COMPANY, and
CHASE HOME FINANCE LLC
Defendants.

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SOMERS V. DIGITAL REALTY TRUST, INC. |  9th Circ. – Dodd-Frank Protects Non-SEC Whistleblowers

SOMERS V. DIGITAL REALTY TRUST, INC. | 9th Circ. – Dodd-Frank Protects Non-SEC Whistleblowers

h/t Dubin Law Offices

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL SOMERS,
Plaintiff-Appellee,

v.

DIGITAL REALTY TRUST INC.,
a Maryland corporation;
ELLEN JACOBS,
Defendants-Appellants

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted November 16, 2016
San Francisco, California
Filed March 8, 2017
Before: Mary M. Schroeder, Kim McLane Wardlaw, and
John B. Owens, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge Owens

SUMMARY*

Dodd-Frank Act

The panel affirmed the district court’s denial of the
defendant’s motion to dismiss a whistleblower claim brought
under the Dodd-Frank Act’s anti-retaliation provision.
Following the approach of the Second Circuit, rather than
the Fifth Circuit, the panel held that, in using the term
“whistleblower,” Congress did not intend to limit protections
to those who disclose information to the Securities and
Exchange Commission. Rather, the anti-retaliation provision
also protects those who were fired after making internal
disclosures of alleged unlawful activity under the SarbanesOxley
Act and other laws, rules, and regulations. The panel
agreed with the Second Circuit that, even if the use of the
word “whistleblower” in a last-minute addition to the antiretaliation
provision created uncertainty, an SEC regulation
resolved any ambiguity, and was entitled to deference.
Dissenting, Judge Owens agreed with the Fifth Circuit.
He wrote that King v. Burwell, 135 S. Ct. 2480 (2015)
(holding that terms can have different operative consequences
in different contexts), on which the majority and the Second
Circuit relied in part, should be quarantined to the specific
facts of that case.

[…]

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Madden v. Midland Funding, LLC, No. 11-CV-8149, (S.D.N.Y.) | A federal judge has ruled that New York law—not Delaware law as the parties agreed in the initial loan agreement—applies to the defaulted borrower’s claims and has certified a class action against the debt collector.

Madden v. Midland Funding, LLC, No. 11-CV-8149, (S.D.N.Y.) | A federal judge has ruled that New York law—not Delaware law as the parties agreed in the initial loan agreement—applies to the defaulted borrower’s claims and has certified a class action against the debt collector.

h/t Dubin Law Offices

If ya’ll recall I posted this before about this debt collector: 

Is Asset Acceptance LLC forging purchase & assignment agreements? CFPB, FTC Check out VP Deborah Everly signatures!

Lexology-

A federal judge has ruled that New York law—not Delaware law as the parties agreed in the initial loan agreement—applies to the defaulted borrower’s claims and has certified a class action against the debt collector.

On February 27, U.S. District Judge Cathy Seibel issued a long-awaited decision in Madden v Midland Funding, LLC. The District Court’s order considered the following questions: (1) which state’s law should apply to the defaulted borrower’s claims, and (2) whether to certify a class action against the debt collector on behalf of similarly situated borrowers.

After a brief history of the case, we summarize both holdings and discuss their implications for marketplace lending. In short, Judge Seibel’s decision compounds uncertainty surrounding debt collection practices and could have far-reaching implications for related industries, including marketplace lending.

[LEXOLOGY]

 

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
————————————————————————X
SALIHA MADDEN, on behalf of herself and all others
similarly situated,

Plaintiffs,

-against-

MIDLAND FUNDING, LLC and MIDLAND CREDIT
MANAGEMENT, INC.,
Defendants.
————————————————————— ——— X

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TFH 3/12 | Special Robo-Signer Exclusive Expose

TFH 3/12 | Special Robo-Signer Exclusive Expose

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 –  March 12

Special Robo-Signer Exclusive Expose

———————

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.

It is once again therefore time to remind everyone, especially the judiciary, lest we forget, of the incredibly blatant fraud perpetrated through robo-signing not only upon America’s mortgage borrowers, but also upon our Courts, which has been instrumental in covering up what we termed on last week’s show “The Great Deception”.

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

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

Starting this Sunday, listeners on the Mainland are reminded that The Foreclosure Hour begins one hour later Pacific and Eastern time as most of the Mainland, unlike Hawaii, switches to Daylight Savings Time.

~

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

 

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Wall St. is misreading Trump, and a market bloodbath is imminent

Wall St. is misreading Trump, and a market bloodbath is imminent

CNBC-

Former top federal budget official David Stockman has a stark warning for investors: There’s going to be a disaster in Washington and you’re not going to see it coming.

Stockman, an ardent critic of President Donald Trump, has strong doubts that the rosy view investors are taking on the economy can hold water in the near-term. As usual, he didn’t mince words when explaining his perspective to CNBC.

Last week, the Dow Jones Industrial Average and S&P 500 Index jumped following Trump’s speech to Congress, with markets growing more bullish about the Trump policy agenda. Yet since Wednesday, both indexes have failed to continue the trend of new highs.

[CNBC]

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Cleveland v. CROWN FINANCIAL, LLC | FL 1DCA – the court erred by granting a new trial based on newly discovered evidence upon finding that the evidence could not have been discovered by the exercise of due diligence

Cleveland v. CROWN FINANCIAL, LLC | FL 1DCA – the court erred by granting a new trial based on newly discovered evidence upon finding that the evidence could not have been discovered by the exercise of due diligence

 

SCOTT CLEVELAND AND STEPHANIE CLEVELAND, Appellants,
v.
CROWN FINANCIAL, LLC, Appellee.

Case No. 1D16-3981.
District Court of Appeal of Florida, First District.
Opinion filed March 1, 2017.
An appeal from the Circuit Court for Walton County, David W. Green, Judge.

Jeffrey U. Beaverstock and Daniel L. Burkard of Burr & Forman, LLP, Mobile, AL, for Appellants.

Robert J. Powell of Clark Partington, Pensacola, for Appellee.

LEWIS, J.

Appellants, Scott and Stephanie Cleveland, appeal the trial court’s Order Granting New Trial and Relief from Judgment, arguing that the court erred by granting a new trial based on newly discovered evidence upon finding that the evidence could not have been discovered by the exercise of due diligence. For the following reasons, we agree with Appellants and, therefore, reverse the trial court’s order.

Background

In June 2013, Appellee, Crown Financial, LLC, filed against Appellants a Mortgage Foreclosure Complaint, alleging that the parties executed in March 2010 a Mortgage and a Profit Sharing Agreement that conveyed to Appellee the subject property, Appellants were in default, and Appellee was entitled to foreclosure on the property and to $418,972.22 in principal pursuant to those documents. At the non-jury trial, Chad Tribe, a member and manager of Appellee, testified in part that his responsibilities included reviewing the records relating to the Profit Sharing Agreement and Mortgage to determine the amounts owed and that he had reviewed the records the day before trial. Tribe testified that while the Profit Sharing Agreement limited the outstanding advances to $300,000, Appellee increased the loan advance to $500,000. When asked if the Profit Sharing Agreement was amended to reflect the increased advance, Tribe responded, “I do not recall. I did not see a document in file, though, that stated that,” and he testified that there was no document before the trial court that memorialized the increase in advances.

The parties disputed the amount of the loans that was secured. Appellee contended that the future advances clause of the Mortgage secured anything over $300,000 up to $600,000, while Appellants argued that the Profit Sharing Agreement secured advances only up to $300,000 and “if anything, the language in the mortgage itself is conflicting,” with the former controlling. In its Final Judgment, the trial court determined that Appellee was entitled to $419,069.64 in principal, thereby implicitly agreeing with Appellee on the issue. On appeal, we reversed and remanded for the recalculation of Appellants’ indebtedness upon concluding that the Profit Sharing Agreement was controlling and limited the secured advances to $300,000, and we noted that “the Agreement, which provided that the Mortgage at issue would secure Appellants’ obligations, was not amended to reflect a $500,000 maximum advance amount.” See Cleveland v. Crown Fin., LLC, 183 So. 3d 1206, 1210 (Fla. 1st DCA 2016).

On remand, the trial court entered an Amended Final Judgment pursuant to this Court’s mandate. Appellee then filed an “Amended and Restated Motion for Relief/Motion for New Trial” “from the amended final judgment pursuant to F.R.C.P. 1.540,” wherein it asserted in part as follows:

5. Subsequent to the trial, due to excusable neglect and newly discovered evidence, it was revealed that the parties did indeed enter into a written agreement for an additional advance for an amount not to exceed $500,000.00 for this transaction. . . .

6. This evidence was something that was lost/misplaced and forgotten due to simple human error. In and of itself, it is critical evidence in this matter and simply because of human error, it was not discovered or remembered until after the trial. . . .

7. The document was apparently in another file or a sea of documents and merely overlooked and forgotten.

[8]. As a result, Plaintiff request[s] relief in the manner of a New Trial in light of the new evidence.

The alleged newly discovered evidence was an Agreement for Additional Advance, which was dated September 2010, was signed by Chad Tribe and Appellant Scott Cleveland, and stated in part, “Pursuant to the Profit Sharing Agreement between the parties . . ., `the aggregate amount outstanding at any one time shall never exceed the sum of $300,000.00.’ Crown agrees to increase this amount to $500,000.00 for this one-time transaction that is currently booked.” In support of Appellee’s motion, Tribe submitted an affidavit, attesting in part that “[t]he agreement for additional advance was not located in the file maintained by [Appellee], but a copy was subsequently located in the possession of the broker”[1] and “[i]n its most simple terms, I made a simple human error mistake regarding an important document.”

Appellants opposed the motion, arguing that the Agreement for Additional Advance did not constitute newly discovered evidence because Appellee failed to establish that it could not have timely discovered it by due diligence and it was merely forgotten evidence newly remembered. The trial court entered an Order Granting New Trial and Relief from Judgment, wherein it granted “[Appellee’s] motion for new trial and alternatively, its motion for relief from judgment” upon finding that “[the Agreement for Additional Advance], located after the trial in the hands of the plaintiff’s broker, constitutes new evidence discovered after the trial that could not have been discovered before the trial by exercise of due diligence . . ..” This appeal followed.

Analysis

“`The importance of finality in any justice system . . . cannot be understated. It has long been recognized that, for several reasons, litigation must, at some point, come to an end.'” Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013) (quoting Witt v. State, 387 So. 2d 922 (Fla. 1980)). “Reflecting a balance between the need for finality and the interest of allowing appropriate corrections to final orders, rules 1.530 and 1.540 [of the Florida Rules of Civil Procedure] provide two very different approaches for judges to revisit final judgments.” Id. A trial court’s ruling on a rule 1.540 motion is reviewed for an abuse of discretion. Travelers Commercial Ins. Co. v. Harrington, 187 So. 3d 879, 884 (Fla. 1st DCA 2016); see also Leach v. Salehpour, 19 So. 3d 342, 344 (Fla. 2d DCA 2009) (explaining the same and that a ruling on a rule 1.530 motion is likewise reviewed for an abuse of direction, unless it involves a pure question of law).

Florida Rule of Civil Procedure 1.540(b) provides in relevant part that pursuant to a timely filed motion, a trial court may relieve a party from a final judgment based on “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing.” “[R]ule 1.540(b), however, `does not have as its purpose or intent the reopening of lawsuits to allow parties to state new claims or offer new evidence omitted by oversight or inadvertence.'” Hooks v. Quaintance, 71 So. 3d 908, 911 (Fla. 1st DCA 2011) (citation omitted). “The necessary finality of litigation prohibits courts from giving parties a second chance at proof they had available in the first instance but overlooked or chose not to use.” Id. “Relief from judgment based on newly discovered evidence claim should be seldom granted and only when the party seeking relief has exercised due diligence.” Id. “It is the movant’s burden under rule 1.540(b) to establish the exercise of due diligence. It is not sufficient to merely show that the evidence was not known or discovered by counsel prior to trial. Rather, the movant must make his or her vigilance apparent.” Brown v. McMillian, 737 So. 2d 570, 571 (Fla. 1st DCA 1999); see also Junda v. Diez, 848 So. 2d 457, 458 (Fla. 4th DCA 2003) (explaining that relief from judgment based on newly discovered evidence should be granted seldom and only when the party seeking relief exercised due diligence, and concluding that the trial court abused its discretion by granting the appellee’s 1.540(b) motion based on newly discovered evidence “[g]iven the length of time the case was pending, the fact that [appellee] knew of the existence of the necessary documentation before the initial trial, the lack of the exercise of due diligence by [appellee]”).

Florida Rule of Civil Procedure 1.530(a) states in pertinent part that “[o]n a motion for a rehearing of matters heard without a jury . . ., the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” A newly discovered evidence claim may also be the basis for relief pursuant to rule 1.530, but a rehearing or new trial based on newly discovered evidence is warranted only where the evidence was discovered after the trial and could not have been discovered before the trial by the exercise of due diligence. Mistretta v. Mistretta, 31 So. 3d 206, 208 (Fla. 1st DCA 2010). Forgotten evidence does not constitute newly discovered evidence. See Resort of Indian Spring, Inc. v. Indian Spring Country Club, Inc., 747 So. 2d 974, 978 (Fla. 4th DCA 1999) (involving a rule 1.530 motion); Holmes v. Holmes, 578 So. 2d 323, 325 (Fla. 4th DCA 1991) (entailing a rule 1.540 motion).

Further, courts generally do not provide parties with an opportunity to retry their case upon a failure of proof. Correa v. U.S. Bank N.A., 118 So. 3d 952, 956 (Fla. 2d DCA 2013) (citing cases refusing to give a party a second bite at the apple and concluding, “Counsel for U.S. Bank should have been fully aware of its burden to reestablish the lost note and fully prepared to meet that burden, yet it made minimal effort to address this issue even after prodding by the trial court. There is simply no reason to afford it a second opportunity to prove its case”); see also Allard v. Al-Nayem Int’l, Inc., 59 So. 3d 198, 202 (Fla. 2d DCA 2011) (stating that a party’s failure to prove damages is an improper ground for rehearing because “`[r]ehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial,'” and concluding that the trial court improperly granted the appellee’s motion for rehearing where “[the appellee] persisted that its interpretation of Burton was the only correct measure of damages, despite considerable debate below about the correct measure of damages and [the appellant’s] argument that improvements must be considered. [The appellee] `consciously elected to proceed upon . . . what was ultimately determined to be an invalid theory of damages'”). Cf. Gulf Eagle, LLC v. Park E. Dev., Ltd., 196 So. 3d 476, 477 (Fla. 2d DCA 2016) (explaining that in order to reopen a case, a party must generally establish that the presentation of the evidence will not unfairly prejudice the opposing party and the reopening will serve the best interests of justice, and reversing the order vacating a deficiency judgment that had been entered against the appellees following a bench trial upon concluding that both factors were met where the trial court improperly denied the appellees’ motion for directed verdict based on an incorrect finding, as a result of which the appellant could not move for a rehearing to present additional evidence, and emphasizing that the appellant could not be penalized for its good faith reliance on the trial court’s ruling).

Turning to the case before us, the trial court granted Appellee’s rule 1.540 motion upon finding that the Agreement for Additional Advance constitutes newly discovered evidence that could not have been discovered before the trial with the exercise of due diligence. As Appellants argue, however, Appellee failed to meet its burden of establishing that it could not have discovered the document with the exercise of due diligence. In fact, Appellee did not present any evidence of—or even allege—its exercise of due diligence and instead claimed only that the document was “lost/misplaced and forgotten due to simple human error”/”merely overlooked and forgotten.” As such, the Agreement for Additional Advance does not constitute newly discovered evidence, and the trial court abused its discretion in finding otherwise.

Apparently recognizing the trial court’s error, Appellee does not dispute Appellants’ contention and instead argues that we should affirm pursuant to the tipsy coachman doctrine.[2] Appellee claims that its motion should be construed as seeking relief under rule 1.530 and the granting of relief pursuant to that rule was required because it does not result in any undue prejudice to Appellants, it promotes the interests of justice, and it avoids an inequitable windfall to Appellants. Appellee primarily relies on Gulf Eagle, LLC in support of its argument, but that reliance is misplaced. Even if Appellee’s motion is construed as seeking relief under rule 1.530, the fact remains that the trial court’s granting of relief was based upon its erroneous finding that the Agreement for Additional Advance constitutes newly discovered evidence. Additionally, unlike in Gulf Eagle, LLC, Appellee was not relying on an erroneous ruling by the trial court, but upon its own strategy that proved to be unsuccessful. Appellee made a strategic decision in arguing throughout the proceeding, until the conclusion of the first appeal, that any advance over $300,000 was secured by the future advances clause of the Mortgage. When this Court rejected Appellee’s theory and remanded for the recalculation of Appellants’ indebtedness, Appellee changed course of action and sought the trial court’s consideration of the Agreement for Additional Advance to prove that its entitlement was not capped at $300,000. Appellee even admits such a change in strategy by arguing on appeal as follows:

[Appellee] filed this foreclosure action with the mistaken belief that there was no agreement amending the maximum credit limitation clause in the Profit Sharing Agreement. And [Appellee] concluded such agreement would be unnecessary for the Trial Court to consider anyway for various legal reasons including that the Mortgage secures additional advances from [Appellee] up to a maximum of twice the principal amount of debt originally loaned. . . Once this Court reversed the Trial Court in Cleveland—disapproving [Appellee’s] reliance on the future advance clause in the Mortgage to secure amounts exceeding $300,000.00—it became necessary for [Appellee] to establish that the parties amended the maximum limitation clause in the Profit Sharing Agreement, written evidence of which [Appellee] had fortunately discovered after trial.

Appellee chose to rely on that strategy even though the amount of loans secured was in dispute, Appellants disagreed with its interpretation of the Profit Sharing Agreement and Mortgage, and Tribe—the same person who in 2010 signed the newly offered document—was asked at trial about any amendments to the Profit Sharing Agreement to reflect the increased advance. Given such, contrary to Appellee’s argument, the reopening of the case would not serve the best interests of justice and would provide Appellee with the type of second opportunity to prove its case that is condemned by the courts.

Conclusion

For the foregoing reasons, we reverse the trial court’s Order Granting New Trial and Relief from Judgment.

REVERSED.

WOLF and WETHERELL, JJ., CONCUR.

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

[1] During trial, Tribe testified that most of the communication between the parties had gone through a broker who introduced Appellee to Appellant Scott Cleveland.

[2] The tipsy coachman doctrine allows an appellate court to affirm a trial court that reaches the right result for the wrong reasons if there is any basis in the record that would support the judgment. Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002).

 

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GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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