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Congress approves plan to roll back post-financial-crisis rules for banks

Congress approves plan to roll back post-financial-crisis rules for banks

Washington Post-

The House on Tuesday passed a plan to roll back banking regulations passed in response to the 2008 financial crisis, sending the bill to President Trump to sign.

The measure leaves the central structure of the post-financial-crisis rules in place, but it would make the most significant changes to weaken the Dodd-Frank banking regulations since they were passed in 2010. It would exempt some small and regional banks from the most stringent regulations, and also would also loosen rules aimed at protecting the biggest banks from sudden collapse.

The measure is nearly certain to become law after its passing in the House, 258 to 159, on Tuesday with nearly all House Republicans and 33 Democrats voting for it. The Senate approved the bill in March with bipartisan backing, and White House officials said that Trump plans to sign it in the coming days.

[WASHINGTON POST]

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Blue Mountain Homes, LLC v. Page | HAWAII ICA – Defining a non-bonafide third party purchaser

Blue Mountain Homes, LLC v. Page | HAWAII ICA – Defining a non-bonafide third party purchaser

h/t DUBIN LAW OFFICES

034873322 by DinSFLA on Scribd

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USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., |  FANNIE MAE (FNMA) Attorney Network Agreements

USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., | FANNIE MAE (FNMA) Attorney Network Agreements

Fannie 1998 Law Firm Agrmt by DinSFLA on Scribd

Fannie 2013 Law Firm Retention Agreement by DinSFLA on Scribd

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USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., |  Rosicki’s argue FNMA knew about the marked up expenses and did not care.  Bank of America argues it does not matter and this pleading by the Govt discloses many of the shenanigans taking place between Fannie Mae and loan servicers (notably Bank of America)

USA ex rel. PETER D. GRUBEA, v. ROSICKI, ROSICKI & ASSOCIATES, P.C., et al., | Rosicki’s argue FNMA knew about the marked up expenses and did not care. Bank of America argues it does not matter and this pleading by the Govt discloses many of the shenanigans taking place between Fannie Mae and loan servicers (notably Bank of America)

Rosicki Opposition to Motion to Dismiss (1) by DinSFLA on Scribd

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TFH 5/20/2018 | Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special  Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

TFH 5/20/2018 | Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

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 – May 20, 2018

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 ———————
Foreclosure Workshop #59: Spadaro vs. Moore (Part Two) — A Two-Hour Special Concluding Our Examination of Foreclosure Deficiency Judgment Procedures and How and Why Most Courts Are Abandoning Traditional Judge-Made Equity Forfeitures

 

 

 

—————————-

Three Sundays ago The Foreclosure Hour informed our listeners of the tragic story of Dr. Amanda Tucker, whose entire life savings, consisting of millions of dollars in real estate equity, was stolen from her because of antiquated judge-made common law deficiency judgment procedures still being inflicted today upon homeowners in many jurisdictions.

And that forfeiture occurred despite the earlier sworn testimony in Court of Dr. Tucker’s Banker that she was not even in default on her jumbo loans when she was sued for foreclosure.

For those listeners who missed that eye-opening broadcast, you will not only find the recording of the recent April 29, 2018 show featuring Dr. Tucker’s ordeal in the Past Broadcast Section of our Website at www.foreclosurehour.com, but we have also posted a convenient link there to our original February 2, 2014 broadcast featuring as our special guests not only Dr. Tucker, calling in live, but also her Banker, Clyde Engle on the telephone, at the time of her foreclosure summary judgment.

Then last Sunday, we aired the equally tragic story of Teresa Moore, whose hard money lender, John Spadaro, bid $100 at an AOAO judicial foreclosure, purchasing the property that was his collateral for her loan, arguably worth potentially even more than the amount of her mortgage debt, but who, not crediting her with the fair value of that loan collateral, proceeded to foreclosure judicially on her and on himself (!) by first transferring his title to a shell LLC of his without the knowledge of his foreclosure Judge, then securing an unjust enrichment deficiency judgment against her in addition to owning, renting out the property for years, and selling it after a second foreclosure, this time by him.

As pointed out in last week’s show, John Spadaro is one of many hard money lenders circling over vulnerable borrowers in every State, for better or worse, but hardly the worst of them all, being nevertheless encouraged to take advantage of vulnerable homeowners facing foreclosure due to traditional deficiency judgment procedures still prevalent in some States, what amounts to State-sponsored theft.

Mr. Spadaro called with numerous objections immediately after last Sunday’s show, and was invited to appear on this Sunday’s show or to provide a written statement to be read on today’s show, but has refused, instead providing The Foreclosure Hour with a series of emails vigorously disputing how he was portrayed.

On today’s show, to be fair, his objections in his absence will be summarized for our listeners.

Last Sunday’s show experienced technical difficulties at the studio during the first few minutes of the broadcast. As a result, we are repeating last Sunday’s show on the hour immediately following our regular broadcast today.

On the first hour today we will complete our examination of foreclosure deficiency procedures and the many issues involved in both the traditional and majority views by reporting on our research in all 50 States.

Most States today, at least 29 in number, have rejected traditional, mathematically-derived judicial foreclosure deficiency judgments based on subtracting net sale proceeds from amounts owed as inequitable, some even changing the procedures by judicial decision making pursuant to their equity jurisdiction where their legislatures have historically failed to act, in favor of fair (sometimes called true) value approaches crediting homeowners foreclosed on with the market value of foreclosed property at time of a confirmed auction sale.

Listeners will be interested to learn of the judicial foreclosure deficiency approach used in their individual jurisdiction.

Do you reside, for instance, in one of the four states whose judiciary still clings to the traditional common law view?

John Waihee and I hope you will listen in and join the Homeowners SuperPAC and help us put an end to unconscionable deficiency judgment abuses, the only basis for which, quoting Judge Oliver Wendell Holmes, is that “it was laid down in the time of Henry IV.”

Gary

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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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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Gov’t Fights Foreclosure Law Firm’s Bid To Ax FCA Claims

Gov’t Fights Foreclosure Law Firm’s Bid To Ax FCA Claims

LAW360-

The government on Monday defended its False Claims Act claims against New York mortgage foreclosure law firm Rosicki Rosicki & Associates PC and two related companies over allegations that they caused Fannie Mae to pay millions of dollars in reimbursement claims for fraudulently inflated foreclosure expenses.

U.S. attorneys told a New York federal court that contrary to a recent dismissal motion against it, the government has the full authority to bring claims on behalf of Fannie Mae and has pled with sufficient particularity that Rosicki, through…

[LAW360]

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Wells Fargo altered documents about business clients

Wells Fargo altered documents about business clients

CNN-

Wells Fargo recently discovered that some workers altered documents about business customers, raising new concerns about the embattled bank’s internal system of checks-and-balances.

The improper activity took place in 2017 and early 2018 and was brought to light by multiple Wells Fargo (WFC) employees who alerted management, a person familiar with the matter told CNNMoney.

The document altering happened in Wells Fargo’s business banking group, which caters to medium-sized businesses with annual sales of $5 million to $20 million.

[CNN]

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TURAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default

TURAN v. NATIONSTAR MORTGAGE, LLC | FL 5DCA- As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default

 

JOHN S. TURAN AND MERCEDES TURAN, Appellants,
v.
NATIONSTAR MORTGAGE, LLC, RAINBOW SPRINGS PROPERTY OWNERS ASSOCIATION, INC., PROGRESSIVE INSURANCE COMPANY, AS SUBROGEE OF DONNA VEZINA, ET AL., Appellees.

Case No. 5D17-215.
District Court of Appeal of Florida, Fifth District.
Opinion filed April 27, 2018.
Appeal from the Circuit Court for Marion County, S. Sue Robbins, Judge.

Mark P. Stopa, of Stopa Law Firm, LLC, Tampa; Latasha Scott, of Lord Scott, PLLC, of Tampa, for Appellants.

Charles P. Gufford, of McCalla Raymer Leibert Pierce, LLC, Orlando, for Appellee, Nationstar Mortgage, LLC.

No Appearance for other Appellees.

PER CURIAM.

John and Mercedes Turan appeal from a final summary judgment of foreclosure in favor of Nationstar Mortgage, LLC, following the entry of a judicial default. We reverse.

After being served with Nationstar’s amended complaint, the Turans, through counsel, filed a motion to dismiss. After considering Nationstar’s response, the trial court denied the motion to dismiss, directing the Turans to “file an answer to the complaint within 10 days of the date of this order the failure of which may result in a judicial default being entered without further notice or hearing.” When the Turans failed to timely file their answer, the trial court entered a judicial default without a motion from Nationstar or notice to the Turans. Less than a week later, they filed their answer and affirmative defenses. After the trial court denied their motion to vacate the judicial default, a final summary judgment of foreclosure was entered in favor of Nationstar from which the Turans now appeal. As the Turans correctly argue, Florida Rule of Civil Procedure 1.500(b) authorizes the entry of a default by the court, but when a party has filed or served any document in the action, “that party must be served with notice of the application for default.” As a result, a trial court order that provides that a judicial default will be automatically entered in the absence of a timely answer is noncompliant with the rule. See Rangel v. MidFirst Bank, 187 So. 3d 289, 290-91 (Fla. 4th DCA 2016) (holding that trial court’s “self-executing” default language is not permitted under rule 1.500(c), which requires notice of application for default); accord Green Sols. Int’l, Inc. v. Gilligan, 807 So. 2d 693, 696 (Fla. 5th DCA 2002) (stating once “any paper” has been served, rule 1.500(b) requires proper notice of default be given to opposing party, and court enter default). The judicial default was improvidently entered, hence, the final judgment based on that default must be set aside and this matter remanded for further proceedings.

REVERSED and REMANDED.

ORFINGER, EVANDER and LAMBERT, JJ., concur.

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

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JOHNSON vs DEUTSCHE BANK TRUST COMPANY |  FL 2DCA-  the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor

JOHNSON vs DEUTSCHE BANK TRUST COMPANY | FL 2DCA- the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor

 

KELI N. JOHNSON and THOMAS E. JOHNSON, Appellants,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, as Trustee RALI 2007-QS1, Appellee.

Case No. 2D16-4262.
District Court of Appeal of Florida, Second District.
Opinion filed May 11, 2018.
Appeal from the Circuit Court for Polk County; Keith P. Spoto, Judge.

Mark P. Stopa of Stopa Law Firm, Tampa, for Appellants.

William L. Grimsley, Kimberly Held Israel, and N. Mark New, II, of McGlinchey Stafford, Jacksonville, for Appellee.

LUCAS, Judge.

Keli and Thomas Johnson appeal the circuit court’s entry of a final summary judgment against them in a residential mortgage foreclosure case brought by Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1 (RALI). They raise five arguments on appeal. We find merit within the fourth—that RALI failed to conclusively establish its standing to enforce the Johnsons’ promissory note—and reverse the summary judgment on that basis.

The Johnsons borrowed $236,000, apparently in connection with a home improvement construction loan, which was memorialized by a promissory note in that amount dated April 28, 2006. The Johnsons’ note was originally payable to National City Mortgage, a division of National City Bank of Indiana, and secured by a mortgage on the Johnsons’ property in Polk County, Florida. The promissory note contained three endorsements, the last of which made the note payable to “Deutsche Bank Trust Company Americas as Trustee,” with no further identifying information of which trust this entity was acting on behalf of.[1]

When the Johnsons allegedly defaulted on the note in 2011, RALI filed the underlying complaint. It later amended its complaint twice, so that in its final, operative iteration, RALI alleged it had standing to enforce the Johnsons’ note as a holder of the note. The Johnsons generally denied RALI’s allegations in their answer and asserted several affirmative defenses, including lack of standing on the part of RALI to enforce the note. RALI eventually filed the original note, which contained endorsements appearing to match those on the copy attached to its pleading.[2]

The case proceeded with itinerant discovery and motion practice, and on July 8, 2016, RALI filed a motion for summary judgment. In support of its motion, it also filed an affidavit signed by Sarah Greggerson, an employee of PNC Mortgage, an entity that purported to be servicing the Johnsons’ loan. It appears from the record that RALI relied upon PNC’s status as its servicer as a basis to establish RALI’s status as a holder of the Johnsons’ note (Ms. Greggerson’s affidavit was the only one filed in support of RALI’s motion for summary judgment). In our view, that was insufficient evidence of RALI’s standing for purposes of summary judgment in this case.

We review a summary judgment under a de novo standard of review. Herendeen v. Mandelbaum, 232 So. 3d 487, 489 (Fla. 2d DCA 2017) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)).

Summary judgment is proper only where the moving party shows conclusively that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. When the nonmoving party has alleged affirmative defenses, the moving party must conclusively refute the factual bases for the defenses or establish that they are legally insufficient. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”

Coral Wood Page, Inc. v. GRE Coral Wood, LP, 71 So. 3d 251, 253 (Fla. 2d DCA 2011) (emphasis added) (citations omitted) (quoting Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008)). “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Atria Grp., LLC v. One Progress Plaza, II, LLC, 170 So. 3d 884, 886 (Fla. 2d DCA 2015) (quoting Holland v. Verheul, 583 So. 2d 788, 789 (Fla. 2d DCA 1991)).

This court has held that in residential mortgage foreclosure cases, the plaintiff bears the burden of proving its standing at the time of trial and at the time it filed its complaint if the issue of standing is contested. See Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc); see also Winchel v. PennyMac Corp., 222 So. 3d 639, 642-43 (Fla. 2d DCA 2017) (noting the “legal oddity” that standing has become in residential foreclosure cases and summarizing, “[o]nce put at issue by a defendant, then, standing becomes a part of the prima facie case that a foreclosure plaintiff must prove in order to secure a judgment”). The summary judgment evidence regarding RALI’s standing—challenged, as it was, by the Johnsons’ affirmative defense—fell short of what was required for a summary adjudication.

Ms. Greggerson’s affidavit stated only that “Plaintiff has owned and held the Note since prior to the filing of the Complaint in this action.” The problem with that assertion, however, is that Ms. Greggerson was not affiliated in any way with the plaintiff, RALI. The limited facts stated in her affidavit failed to address how she derived this knowledge about RALI’s connection to the Johnsons’ note or how RALI became an owner or holder of the Johnsons’ note; and there was no claim within her affidavit that PNC was holding the Johnsons’ note on behalf of RALI. See, e.g., Peters v. Bank of N.Y. Mellon, 227 So. 3d 175, 180 (Fla. 2d DCA 2017)(finding testimony of “case manager” employed by servicer—who took over servicing after the filing of the lawsuit— was insufficient to establish ownership of the lost note because “Ms. Stevens had no personal knowledge about the Bank’s claim to have acquired ownership of the note in 2006. Moreover, Ms. Stevens’s testimony in this regard was not supported by the limited documentary evidence about the loan that was available. Because Ms. Stevens’s testimony was not based on personal knowledge and was not supported by any documentation, we conclude that the testimony was insufficient to establish the Bank’s ownership of the lost note.”); Rosa v. Deutsche Bank Nat’l Tr. Co., 191 So. 3d 987, 988-89 (Fla. 2d DCA 2016) (holding that “the record in this case does not establish that Deutsche Bank had standing to foreclose at the time it filed its complaint” because its sole witness, an employee of its servicer, Wells Fargo, “was unable to provide any testimony as to Deutsche Bank’s acquisition of the note” and remarking that “[t]he only testimony as to possession of the note suggests that Wells Fargo, not Deutsche Bank, was the last entity to have possession of the note prior to the filing of the complaint”); Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (finding second servicer’s representative’s testimony was insufficient to prove first servicer’s standing at time of inception of suit because “[t]hat testimony established at most that the first servicer was in fact servicing the mortgage when it filed suit, not that the first servicer held the note when it filed suit”); Jaffer v. Chase Home Fin. LLC, 92 So. 3d 240, 242 (Fla. 4th DCA 2012)(“Under [Florida Rule of Civil Procedure 1.510(e)], affidavits must be based on personal knowledge, set forth facts which would be admissible in evidence, and show `the affiant is competent to testify to the matters stated therein.'” (quoting Coleman v. Grandma’s Place, Inc., 63 So. 3d 929, 932 (Fla. 4th DCA 2011))). And in this case, the documents attached to Ms. Greggerson’s affidavit did not dispel the question of this note’s ownership or who was the note’s holder such that there was not “the slightest doubt that an issue might exist” concerning RALI’s standing. See Atria Grp., 170 So. 3d at 886. Indeed, on this record, it is not even clear that PNC had the underlying authority to act as a servicer for RALI or to hold the Johnsons’ note on RALI’s behalf. Cf. Rosa, 191 So. 3d at 988 n.2 (noting that foreclosing plaintiff, Deutsche Bank, did not argue constructive possession of its note by its servicer, Wells Fargo, or that Wells Fargo was acting as Deutsche Bank’s agent that was authorized to hold the note on Deutsche Bank’s behalf (citing Phan v. Deutsche Bank Nat’l Tr. Co., 198 So. 3d 744 (Fla. 2d DCA 2016))). With respect to PNC’s authority, Ms. Greggerson’s affidavit stated only that “PNC is the mortgage servicer for the Plaintiff . . . for the mortgage loan account that is the subject of this litigation (the `Mortgage Loan’). A copy of the Power of Attorney from the Deutsche Bank Trust Company Americas, as Trustee to PNC is attached hereto as Exhibit `A.’ ” The limited power of attorney attached to her affidavit actually named Ocwen Loan Servicing, LLC, as RALI’s servicer, not PNC.[3]Having elected to rely solely on this affidavit and its attachments, RALI failed to meet its burden of proving there was no material issue of fact concerning RALI’s standing. We must, therefore, reverse the final summary judgment.

In so holding, we do not reach the remaining issues the Johnsons present; first, because we need not do so in order to resolve this appeal, but second, because we are hesitant to do so in a case where we have no transcript from the summary judgment hearing in our record. This latter point is one we believe merits some elucidation.

Some of the arguments raised by the Johnsons in this appeal, while perhaps meritorious, presented the very real potentiality that they were either unpreserved or even waived. To take one example, the first issue the Johnsons advanced in their briefing was that RALI should not have obtained a summary judgment premised upon a loan modification agreement that RALI had neither pleaded nor attached to its operative complaint. We can see from our record that the final summary judgment in this case was indeed based, in part, upon a loan modification agreement that was introduced through Ms. Greggerson’s affidavit. We can also see that that loan modification agreement was not mentioned anywhere within RALI’s second amended complaint or attached as an exhibit to that pleading. See Fla. R. Civ. P. 1.130(a) (“All bonds, notes, bills of exchange, contracts, accounts, or documents on which action may be brought . . . must be incorporated in or attached to the pleading.”); cf. Tracey v. Wells Fargo Bank, N.A., 43 Fla. L. Weekly D652b, D655b (Fla. 2d DCA Mar. 23, 2018) (holding that the trial court erred in permitting a foreclosing lender to amend its complaint to conform to the evidence at trial in order to recover on unpled loan modification agreements). What we cannot see is whether the Johnsons brought that pleading impropriety to the circuit court’s attention at any time prior to or during the summary judgment hearing. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So. 2d 579, 581 (Fla. 2d DCA 2004) (holding that employer’s failure to object to the sufficiency of employee’s administrative complaint’s verification during the administrative process “acted as a waiver of any objection” to the pleading’s sufficiency (citing Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991))); Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989) (“An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court’s determination.”). Were we to take up this argument, we would have to tacitly assume that the Johnsons had presented it below in the face of a record that is completely silent on that point.

Florida law calls upon appellate courts to provide a careful de novo scrutiny of summary judgment rulings, given what is at stake. See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (observing that summary judgment “brings a sudden and drastic conclusion to a lawsuit, thus foreclosing the litigant from the benefit of and right to a trial on the merits of his or her claim”). In that spirit, we, along with our sister courts, have occasionally remarked that the lack of a transcript of a summary judgment hearing will not necessarily thwart an appellate review of a summary judgment. See, e.g., Kamin v. Fed. Nat’l Mortg. Ass’n, 230 So. 3d 546, 548 n.2 (Fla. 2d DCA 2017) (“[A] hearing transcript is usually `not necessary for appellate review of a summary judgment.'” (quoting Houk v. PennyMac Corp., 210 So. 3d 726, 730 (Fla. 2d DCA 2017))); Shahar v. Green Tree Servicing LLC, 125 So. 3d 251, 254 (Fla. 4th DCA 2013) (“[H]earing transcripts ordinarily are not necessary for appellate review of a summary judgment.”); Gonzalez v. Chase Home Fin. LLC, 37 So. 3d 955, 958-59 (Fla. 3d DCA 2010) (holding that it was “not necessary to procure a transcript of the summary judgment hearing” where “the [summary judgment] evidence—in the form of the pleadings, [the defendant’s] affidavit, and the county records”—demonstrated that genuine issues of material fact remained (quoting Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d DCA 1998))).

But the context in which this observation arises is almost universally confined to appeals concerning the sufficiency of the summary judgment evidence before the trial court. See, e.g., Kamin, 230 So. 3d at 548Shahar, 125 So. 3d at 253-54Gonzalez, 37 So. 3d at 958-59. That was why in Houk, 210 So. 3d at 731, a case where we devoted a section of analysis to the absence of a summary judgment hearing transcript, we took care to point out that “in this case,” where the summary judgment evidence about enforcement of a lost note included “the operative complaint, . . . [the] answer and affirmative defenses, the motion and the order for substitution of the plaintiff, the amended motion for summary judgment, and the supporting and opposing affidavits, including the affidavit of lost note,” we had “all of the portions of the record necessary for us to determine whether the summary judgment was properly entered.” “Under these circumstances,” we concluded, a hearing transcript would provide no further insight about the evidentiary record’s sufficiency. Id. These kinds of pronouncements, issued within case-specific, de novo reviews of evidentiary records, should not be read to the neglect of securing court reporters to transcribe summary judgment hearings. To the contrary, presenting an adequate record—one that demonstrates not only what evidence was presented below but also which arguments were preserved—remains the appellant’s burden in an appeal of a summary judgment. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court cannot consider any ground for objection not presented to the trial court.” (citing Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982))); Cagwin v. Thrifty Rents, Inc., 219 So. 3d 1003, 1004 (Fla. 2d DCA 2017) (discussing appellant’s argument that the affiant who executed a summary judgment affidavit did not have sufficient knowledge to attest to the matters in the affidavit but concluding “we cannot determine whether such a challenge was properly raised or addressed at the summary judgment hearing because we have no transcript” (citing Zarate v. Deutsche Bank Nat’l Tr. Co., 81 So. 3d 556, 557-58 (Fla. 3d DCA 2012))); Black Point Assets, Inc. v. Fed. Nat’l Mortg. Ass’n, 220 So. 3d 566, 567 (Fla. 5th DCA 2017) (addressing the sufficiency of a complaint and summary judgment evidence to establish foreclosure and noting “Black Point’s additional objections to the summary judgment were not preserved for appeal”); Rose v. Clements, 973 So. 2d 529, 530 (Fla. 1st DCA 2007) (“Any basis for reversal of summary judgment must be preserved by raising the issue in the trial court.”).

All of which is to say, the de novo review that we employ for summary judgment rulings is not a gateway to reach unpreserved legal arguments, as if they were fundamental error. Cf. Coba v. Tricam Indus., Inc., 164 So. 3d 637, 646 (Fla. 2015)(“[I]n civil cases, reversal based on the concept of `fundamental error’ where a timely objection has not been made is exceedingly rare.”). So while a lack of a transcript, in and of itself, will not necessarily prohibit appellate review of the evidence underlying a summary judgment ruling, it could in some cases stymie the fullness of a legal argument challenging that ruling on appeal if there is a question about whether the argument was preserved. We reiterate, then, what we stated in Houk: while it might not be necessary to procure a transcript from a summary judgment hearing in every case, it is indeed “often helpful to do so,” id. at 731 (quoting Seal Prods., 705 So. 2d at 975), especially in cases where preservation of a legal argument might otherwise be in question.

Here, however, we are satisfied that the record we do have reflects a genuine issue of material fact that was argued below. RALI’s standing was a contested point almost from the beginning of this litigation, and the evidence of its standing as an owner or holder of the Johnsons’ promissory note was insufficient to sustain a summary judgment in its favor. For that reason, we reverse the circuit court’s final summary judgment and remand this case for further proceedings.

Reversed and remanded.

SILBERMAN and SLEET, JJ., Concur.

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

[1] Independently of the endorsements, RALI also filed a series of assignments, which it maintained established its standing as an owner and a holder of the Johnsons’ note. These assignments would not establish RALI’s standing for purposes of summary judgment, however, because the final assignment in the series only purported to assign the Johnsons’ mortgage to RALI, not the note itself. See, e.g., Houk v. PennyMac Corp., 210 So. 3d 726, 732 (Fla. 2d DCA 2017) (holding that plaintiff “did not acquire standing to foreclose based on an assignment of only the mortgage”); Caballero v. U.S. Bank Nat’l Ass’n ex rel. RASC 2006-EMX7, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) (“[A]ssignment was insufficient to show standing because it only purported to assign the mortgage, not the note.”); Lamb v. Nationstar Mortg., LLC, 174 So. 3d 1039, 1041 (Fla. 4th DCA 2015) (“A bank does not have standing to foreclose where it relies on an assignment of the mortgage only.”). RALI’s second amended complaint asserts its standing solely on the theory that it was the holder of the Johnsons’ note.

[2] RALI has not argued, either below or in this appeal, that it was entitled to an inference of possession of the note at the time the complaint was filed under Ortiz v. PNC Bank, National Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016) (“[I]f the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.”). Moreover, the trial court never made a finding upon which we could conclude that the Ortiz inference would have been applicable. See, e.g., Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009) (“[A]n appellate court cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue.”).

[3] A separate “certification” of one of Ocwen Loan Servicing, LLC’s assistant secretaries was also attached as an exhibit to Ms. Greggerson’s affidavit, and it appeared to include an enumerated list of certain PNC employees authorized to act on Ocwen’s behalf. Ms. Greggerson’s name did not appear on that list.

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TFH 5/13/18 | Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

TFH 5/13/18 | Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

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 – May 13, 2018

.

 ———————
Foreclosure Workshop #58: Spadaro vs. Moore — Another Tragic Example of How Common Law Foreclosure Deficiency Judgment Procedures Are Turning Our Courts into Collection Agencies for Crooks

 

 

 

—————————-

Two Sundays ago The Foreclosure Hour informed our listeners of the tragic story of Dr. Amanda Tucker, whose entire life savings consisting of millions of dollars in real estate equity was stolen from her because of antiquated judge-made common law deficiency judgment procedures still being inflicted today upon homeowners in a near majority of our States.

And that occurred despite the earlier sworn testimony in Court of Dr. Tucker’s Banker that she was not even in default on her jumbo loans when she was sued for foreclosure.

For those listeners who missed that eye-opening broadcast, you will not only find the recording of that recent April 29, 2018 show featuring Dr. Tucker’s ordeal in the Past Broadcast Section of our Website at www.foreclosurehour.com, but we have posted a convenient link there to our original February 2, 2014 Broadcast featuring as our special guests not only Dr. Tucker, calling in live, but also her Banker, Clyde Engle on the telephone, at the time of her foreclosure summary judgment.

Our listeners will recall from past shows that originally foreclosure deficiency judgments historically did not exist, as mortgages simply contained a “right of reentry” and if one defaulted on one monthly payment, the landlord would simply kick out the borrower and take back the property and any equity the borrower had in it at the time.

To remedy the harshness of the right of reentry, English Courts of Equity instituted the present day foreclosure auction system for the purpose of protecting a homeowner’s equity in foreclosed properties, at a time when there were no other alternatives such as an MLS listing or the existence of real estate brokers capable of marketing properties, not even yet a printing press.

Today instead, forced auction sales consisting of rigged credit bidding and inadequate marketing have transformed such antiquated foreclosure auctions into modern day thieves markets, the opposite of what was intended.

Lest some mistakenly think that Dr. Tucker’s situation is somehow unique, the truth is that such ripoffs are taking place daily in our Courts, who seemingly, very much mimicking the legendary “Mr. Magoo,” appear oblivious to how they are being unwittingly turned into collection agencies for crooks.

This Sunday, for example, The Foreclosure Hour brings you the alarming details of an even worse foreclosure deficiency judgment ripoff than that waged against Dr. Tucker, which is playing out at this very moment in Northern California, its State Courts being asked to enforce another Hawai’i antiquated predatory common law Judge-made deficiency judgment under threat of imprisonment no less: Spadaro vs. Moore — the subject of this Sunday’s Radio Show.

John Waihee and I hope you will listen in and join the Homeowners SuperPAC and help us put an end to such unconscionable abuses, the only indefensible basis for which, quoting Judge Oliver Wendell Holmes, is that “it was laid down in the time of Henry IV.”

Gary

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
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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HACKER v HOMEWARD RESIDENTIAL, INC | CA 2nd Appellate – We find that Hacker has successfully alleged facts supporting a claim that the August 21, 2008 assignment is void. As such, he has standing to pursue an action for wrongful foreclosure

HACKER v HOMEWARD RESIDENTIAL, INC | CA 2nd Appellate – We find that Hacker has successfully alleged facts supporting a claim that the August 21, 2008 assignment is void. As such, he has standing to pursue an action for wrongful foreclosure

H/T DUBIN LAW OFFICES

2018-b278537 by DinSFLA on Scribd

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RBS reaches $4.9 billion deal to settle U.S. mortgage bond investigation

RBS reaches $4.9 billion deal to settle U.S. mortgage bond investigation

Reuters-

Royal Bank of Scotland (RBS.L) has agreed to pay a smaller-than-expected $4.9 billion to resolve a U.S. investigation into its sale of mortgage-backed securities, paving the way for a long-awaited return of cash to UK taxpayers who bankrolled its post-crisis survival.

RBS said that $3.46 billion of the proposed civil settlement would be covered by existing provisions and that the bank would take a $1.44 billion charge in the second quarter to cover the rest.

Analysts had estimated the U.S. Department of Justice could impose a fine of up to $12 billion on RBS for mis-selling mortgage-backed securities in the run-up to the 2007-2008 financial crisis.

[REUTERS]

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A Financial-Crisis Settlement Shows Trump Team’s Lighter Touch on Banks

A Financial-Crisis Settlement Shows Trump Team’s Lighter Touch on Banks

Bloomberg-

If HSBC Holdings PlcUBS Group AG and Wells Fargo & Co. were concerned that the Trump administration might continue the big-ticket bank penalties of the Obama era, there are mounting signs that they need not be.

Royal Bank of Scotland Group Plc says it has reached a tentative deal with the Justice Department to pay $4.9 billion to resolve an investigation into its sale of toxic mortgage-backed securities a decade ago. The Justice Department, without citing a figure, confirmed a pact was near.

The RBS penalty would be about half of what many analysts had expected the bank to pay. Those estimates were based, in part, on the size of the bank’s MBS portfolio, which was larger than most. An RBS deal for under $5 billion would be the first time that a mortgage settlement with the Justice Department was lower than the same bank’s penalty to the Federal Housing Finance Agency, according to Bloomberg Intelligence.

[BLOOMBERG]

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Federal Judge: Wells Fargo owes $97 million to California workers

Federal Judge: Wells Fargo owes $97 million to California workers

CNN-

A federal judge has ordered Wells Fargo to pay $97.3 million in damages to mortgage workers in California who weren’t paid enough for their breaks.

The judgment, handed down late Tuesday, comes after the court ruled in January that Wells Fargo (WFC) violated California’s tough labor laws.

The damages in the class action lawsuit are almost quadruple what Wells Fargo argued it should owe.

[CNN]

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Monroe County Legislature halts foreclosure sale of family home

Monroe County Legislature halts foreclosure sale of family home

WHEC-

Eric and Alison Endicott could finally breathe Tuesday night after several tense moments during the meeting of the Monroe County Legislature.

The legislature voted to postpone approving a foreclosure sale that could have tossed them off property their family has owned for 44 years.

Alison’s brother had owned a portion of the property, but he fell into financial trouble. The property went into foreclosure due to back taxes.

[WHEC]

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Linderman v. US Bank National Association | 7th Cir. Holds RESPA’s QWR Provisions Require Actual Damages Caused by the Violation

Linderman v. US Bank National Association | 7th Cir. Holds RESPA’s QWR Provisions Require Actual Damages Caused by the Violation

H/T Dubin Law Offices

LEXOLOGY-

The U.S. Court of Appeals for the Seventh Circuit recently affirmed a trial court’s finding that a servicer did not violate the federal Real Estate Settlement Procedures Act (RESPA) because the borrower could not prove that the servicer’s failure to respond to a “Qualified Written Request” (QWR) caused her actual damages, as required by 12 U.S.C. § 2605(f)(1)(A).

A copy of the opinion in Linderman v. US Bank National Association is available at: Link to Opinion.

In 2004 a borrower bought a home with the help of a mortgage loan. The borrower lived in the home with her ex-husband, their children, and her parents. In June 2013, the borrower moved out of the home and stopped paying the loan. By May 2014 the house was unoccupied. Thieves vandalized the unoccupied home. In 2014 the borrower remarried and then subsequently divorced her new husband.

In March 2014 the servicer initiated foreclosure proceedings. The foreclosure court entered a default judgment and later vacated it in June 2015 at the borrower’s request.

[LEXOLOGY]

 

 

KELLY JEAN LINDERMAN, Plaintiff-Appellant,
v.
U.S. BANK NATIONAL ASSOCIATION, Defendant-Appellee.

No. 17-1770
United States Court of Appeals, Seventh Circuit.

Argued March 28, 2018.
Decided April 10, 2018.
S. Christopher Striebeck, for Plaintiff-Appellant.

Ryan McCrosson, for Plaintiff-Appellant.

Tammara D. Porter, for Defendant-Appellee.

Timothy C. Sullivan, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 1:16-cv-00104-LJM-DML, Larry J. McKinney, Judge.

Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

EASTERBROOK, Circuit Judge.

Kelly Jean Floyd bought a home in 2004 and lived there with her ex-husband, their four children, and her parents. In June 2013 her mother asked her to move out to reduce intra-family conflicts. Floyd left—and she also stopped paying the loan that is secured by a mortgage on the house. A few months later her mother departed (her father had died years earlier), leaving the house occupied by a single daughter, who moved away in May 2014. The unoccupied structure was vandalized; thieves removed its copper pipe and wiring. U.S. Bank, which owns the note and mortgage, started foreclosure proceedings in March 2014; Floyd asserts that she was not notified. A default judgment was entered, then vacated in June 2015 at her request. (The parties have not told us what has happened in the foreclosure case since then.) In 2014 Floyd remarried and took the name Linderman, which we use from now on. She has divorced the new husband and has never reoccupied the home (or resumed paying offo the loan)—though in August 2015, with the aid of an inheritance, she did buy another house nearby. She lives in that house today.

The 2014 vandalism produced insurance money that was sent to the Bank, to be held in escrow for use in making repairs or as additional security. Linderman hired a homerepair contractor, and early in 2015 the Bank disbursed $10,000 from the escrow toward the cost of repairs. The contractor abandoned the job in April 2015, however, telling Linderman that it was not confident that she could pay the full cost of its work. The house was vandalized twice more that spring, and a storm damaged the roof in June 2015.

Linderman has not hired a replacement contractor or asked the Bank to disburse additional funds from the escrow. But she did send the Bank a leger, dated September 5, 2015, asking about the status of the loan and particularly about how the insurance money was being handled. The Bank sent a response dated September 25. Asserting that she had not received that response, Linderman filed this suit under the Real Estate Seglement Procedures Act, which the parties call RESPA and we call the Act.

The district judge assumed that the leger met the definition of a “qualified wrigen request”, 12 U.S.C. §2605(e)(1)(B), and further assumed that a “servicer” (another defined term) must ensure that its response is received. We do not decide whether either assumption is correct; the second is questionable given 12 C.F.R. §1024.11, which says that mailing a timely and properly addressed response satisfies the Act whether or not the response is received. (The statute is silent on this issue.) Even with the benefit of these two favorable assumptions, Linderman lost, because a remedy depends on proof of “actual damages”. 12 U.S.C. §2605(f)(1)(A). The district judge found that Linderman’s non-receipt of the information could not have caused or aggravated any of her injuries. 242 F. Supp. 3d 764 (S.D. Ind. 2017).

The dates we have mentioned show why the district court reached this conclusion. Only Linderman’s divorce from her new husband occurred after September 2015, but the events that led to the divorce (inability to find an affoordable place to live, disagreements about parenting styles, Linderman’s deteriorating mental health) predated the leger to the Bank. Here are a few more dates: in October 2014 Linderman saw a property-preservation company (which she had not hired) carting things away from the house; in July 2015 the City of Indianapolis began to send Linderman notices that the house had become a nuisance and demanding that she take steps to secure and repair it to building-code requirements (she estimates that she has spent $5,000 responding to the City’s demands); in August 2015 Linderman entered treatment for depression and anxiety. None of these events can be traced to non-receipt of the Bank’s leger in late September 2015.

Still, Linderman asserts, the lack of a response from the Bank has aggravated her problems. She does not explain how. The lack of money disbursed from the escrow may be a cause of continuing loss, if she cannot affoord to repair or secure the house. Similarly, the house’s condition could affect her mental well-being. Linderman asserts that she “began to feel more anxious and depressed as [she] watched [her] home continue [to] deteriorate”. Yet the Act does not require a servicer to pay money in response to a wrigen request.

The Act requires a servicer to correct errors in its records (§2605(e)(2)(A)) or provide appropriate information if no error needs fixing (§2605(e)(2)(B), (C)). It requires the servicer to refrain, for 60 days, from taking steps that would jeopardize the borrower’s credit rating (§2605(e)(3)). Linderman does not accuse the Bank of violating the rule about credit reports and does not explain how earlier access to the Bank’s description of how the account has been handled could have helped her. Nor do we see how lack of an adequate response, as opposed to the ongoing foreclosure and need of money for repairs, could have contributed to her mental issues. And some of her asserted injuries, such as the breakdown of her marriage, are outside the scope of the Act. Perron v. J.P. Morgan Chase Bank, N.A., 845 F.3d 852, 858 (7th Cir. 2017) (“the breakdown of a marriage is not the type of harm that faithful performance of RESPA duties avoids”).

A focus on federal rules can distract people (including lawyers) from the more mundane doctrines of state law that may offoer greater prospect of success. The contract between Linderman and the Bank, not federal law, determines how insurance proceeds must be handled and when the Bank must disburse money from the escrow to make repairs. The Act does not require servicers to explain the details of contracts (or contract law) to customers or their lawyers. Contract law also governs the arrangement between Linderman and the repair firm that walked in April 2015; if the contract required the firm to finish the job, Indiana law would supply a remedy. Likewise Indiana law (rules of conversion, replevin, and trespass) could provide relief against the company that may have taken harmful steps in October 2014. Linderman may even have a claim against her mother, who did not pay the loan after Linderman moved out. (Linderman told the district judge that she believed that her mother would repay the loan, though she does not say that her mother promised to do so or that she took any step to add her mother to the account with the Bank.) Yet she does not pursue any of these theories. The sole claim in this suit is that the Bank injured her by not adequately responding to her leger. That claim fails for the reasons we have given.

AFFIRMED.

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Equifax Says Over 56,000 Drivers Licenses, Passports, and More Were Also Stolen

Equifax Says Over 56,000 Drivers Licenses, Passports, and More Were Also Stolen

Fortune-

Equifax has once again revised the number of people potentially impacted by 2017’s massive data breach, telling Congress that tens of thousands more could be compromised after hackers possibly obtained images of their driver’s licenses, passports, and other identifying papers.

The announcement, which the company has not previously revealed, is tied in with last September’s hacking incident, in which the Social Security information of 145.5 million Americans might have been compromised.

Equifax said hackers accessed photos of 38,000 driver’s licenses, 12,000 Social Security or taxpayer ID cards, 3,200 passports, and 3,000 other documents, such as military IDs or state-issued IDs.

[FORTUNE]

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U.S. Bank National Association v. Fergerstrom | HAWAII ICA – Dubin Law Offices Score Another Win Vacating Judgments

U.S. Bank National Association v. Fergerstrom | HAWAII ICA – Dubin Law Offices Score Another Win Vacating Judgments

CAAP-17-0000364sdo by DinSFLA on Scribd

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U.S. Bank Trust National Association v. Lopez, 2017 IL App (2d) – Court Reverses Their Own Ruling on Standing

U.S. Bank Trust National Association v. Lopez, 2017 IL App (2d) – Court Reverses Their Own Ruling on Standing

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

U.S. BANK TRUST NATIONAL
ASSOCIATION, Not in Its Individual
Capacity but Solely as Owner Trustee For
Queen’s Park Oval Asset Holding Trust,

Plaintiff-Appellee,

v.

MARIO A. LOPEZ, a/k/a Mario Augusto
Lopez-Franco; MARTHA D. LOPEZ; and
UNKNOWN OWNERS and NONRECORD
CLAIMANTS,

2160967 by DinSFLA on Scribd

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Wells Fargo Agrees to Settle With Shareholders for $480 Million

Wells Fargo Agrees to Settle With Shareholders for $480 Million

NYT-

Wells Fargo’s tab for its sham accounts scandal shot up again on Friday, when the bank agreed to pay $480 million to settle a class-action claim from shareholders who said they were harmed by the bank’s false statements about its misdeeds.

The deal, which still needs approval from a federal court in San Francisco, would compensate investors who bought Wells Fargo stock from February 2014 to September 2016 — the month that regulators and law enforcement officials brought the bank’s illegal actions to light and fined it $185 million.

The bank said it denied the shareholders’ accusations but chose to settle the case to avoid the cost and distraction of fighting the claims.

“Moving to put this case behind us is in the best interest of our team members, customers, investors and other stakeholders,” Timothy J. Sloan, Wells Fargo’s chief executive, said in a written statement.

[NYT]

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TFH 5/6/2018 | “It’s the Rules of Evidence — Stupid” (Part Two): Ten More Ways To Avoid Being Blindsided by Dishonest Foreclosure Attorneys

TFH 5/6/2018 | “It’s the Rules of Evidence — Stupid” (Part Two): Ten More Ways To Avoid Being Blindsided by Dishonest Foreclosure Attorneys

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 – May 6, 2018

.

 ———————
“It’s the Rules of Evidence — Stupid” (Part Two): Ten More Ways To Avoid Being Blindsided by Dishonest Foreclosure Attorneys

 

 

—————————-

For decades State and Federal Courts throughout the United States have been robotically applying one set of evidence rules to foreclosure cases and another set of evidence rules to all other civil cases.

Those who have been listening to our radio show know why, because the Courts until recently have applied the traditional mortgage lending model of the neighborhood banker, oblivious to how the hidden secondary securitized trust banking system works.

But that is becoming no longer the situation in many Courts, as Courts are starting to ask what we have referred to on past shows as retired Hawai’i Kona Judge Ronald Ibarra’s threshold question “How Does He Know?” when confronted with a foreclosing plaintiff’s “evidence” in support of foreclosure.

Courts are designed to sort out the true facts of each dispute and apply the law accordingly. Each side presents its “facts” in the form of testimony and documents, and the trier of facts, which in foreclosure cases is the Judge, decides.

Thanks to the adoption by many Courts of (1) the “Standing at Inception” Rule now requiring proof of possession of the promissory note and the right to enforce it at the time a foreclosure lawsuit is filed, and (2) new scrutiny of a foreclosing plaintiff’s firsthand evidence supporting its burden of proof as to loan default and standing, homeowners have been increasingly prevailing in foreclosure cases by challenging a foreclosing plaintiff’s evidence.

In Hawaii, for instance, those highly beneficial checks on foreclosing plaintiff’s false evidence attempting to support its right to foreclose are known as the Reyes-Toledo and the Mattos evidentiary rules, and any new listeners unfamiliar with those decisions of the Hawaii Supreme Court should listen to those past broadcasts found on our website at www.foreclosurehour.com.

Yet, as could be expected, foreclosure attorneys are now responding by attempting to misrepresent other rules of evidence to our Courts to justify nevertheless getting around their new Reyes-Toledo and Mattos evidentiary responsibilities.

On today’s show, time permitting, we examine the following ten ways in which foreclosing attorneys are now seeking to sidestep Reyes-Toledo and Mattos requirements and how you can effectively counter them by understanding how these ten evidentiary traps, as it were, can be avoided and exposed in court in the context of securitization:

1. The Verified Complaint Trap;
2. The Judicial Notice Trap;
3. The Qualified Witness Trap;
4. The Custodian of Records Trap;
5. The Self-Authentication Trap;
6. The Real Party in Interest Trap;
7. The Negotiable Instrument Trap;
8. The Attorney Witness Trap;
9. The Mortgage Follows the Note Trap; and
10. The Securitized Trust Standing Trap.

Gary

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
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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A Lender’s Vorpal Sword: Expungement Affidavits & Their Power to Void Sheriff ‘s Sales & Revert Mortgages Back to the Homeowner

A Lender’s Vorpal Sword: Expungement Affidavits & Their Power to Void Sheriff ‘s Sales & Revert Mortgages Back to the Homeowner

By Joshua LaBar
Michigan State University College of Law

Abstract Like many Americans across the country, Michigan residents have faced a staggering number of foreclosures in the last few years. 2 In 2009, Laura Buttazzoni was one of the many Michigan homeowners facing the dire reality that she was going to lose her home. 3 After Buttazzoni’s failed attempt to sell her home, her bank initiated a sheriff’s sale in late 2009.4 After the statutory redemption period expired, 5 Fannie Mae evicted Buttazzoni and relisted the home in 2011.6 Even though Buttazzoni’s home was foreclosed, sold at a sale, and relisted on the market—she was not done with the property. In June 2012, nearly three years after Buttazzoni’s eviction, Fannie Mae executed an “expungement affidavit,” which voided the 2009 sheriff’s sale and reverted the mortgage back to Buttazzoni’s name.

A Lenders Vorpal Sword_ Expungement Affidavits & Their Power To by DinSFLA on Scribd

Recommended Citation LaBar, J. (2016). A lender’s vorpal sword: Expungement affidavits & their power to void sheriff’s sales & revert mortgages back to the homeowner. Cornell Real Estate Review, 14(1), 30-39 . Retrieved from http://scholarship.sha.cornell.edu/crer/vol14/iss1/16

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