dinsfla | FORECLOSURE FRAUD | by DinSFLA

Author Archives | dinsfla

Judge deals Wells Fargo another blow in mortgage scandal

Judge deals Wells Fargo another blow in mortgage scandal

NY POST-

Wells Fargo has not yet earned back the trust of New York Federal Judge Robert Drain.

The US Southern District Court judge ruled this week that a New York homeowner The Post profiled in August who fought back against the denial of a mortgage modification request by Wells Fargo — had the right to have a new loan-modification request reviewed.

Nyack, NY homeowner Mia Derosa argued that the bank’s August admission that a computer glitch wrongly denied hundreds of customers home-loan help meant that Wells Fargo might have made a similar mistake in January 2018 on her rejected loan-modification request on her existing $650,000 mortgage.

[NY POST]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

TFH 9/16 | What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

TFH 9/16 | What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

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 – September 16, 2018

What Every Homeowner Needs To Know To Survive a Foreclosure Auction: How To Challenge Ten Major Foreclosure Auction Abuses, Including as Fiduciary and Due Process Violations.

.

 ———————

 

John Waihee and I have spent months on the Foreclosure Hour discussing “standing issues,” explaining how to challenge a pretender lender’s right to foreclose.

Yet despite new, stringent requirements for proving standing in many jurisdictions, still a majority of state and federal trial and appellate courts in the United States, who we might term the “Deep Judiciary,” grant foreclosure summary judgments, ignoring factual breaks in the chain of ownership of mortgage loans and the applicable otherwise co trolling rules of evidence.

For those homeowners in foreclosure losing standing issues, they are then forcibly escorted into a new legal maze called a foreclosure auction and the many abusive procedures it triggers.

On today’s show we explore, time permitting, what every homeowner needs to know about the auction process and how to survive while caught involuntarily within it.

The ten major auction abuses, applicable in most instances to judicial and nonjudicial foreclosures alike, admitted as unfair and inequitable in most if not all jurisdictions, but nevertheless nothing is often done about them, are as follows, to be discussed on today’s show:

1. Escrow Unauthorized Withholding of Escrow Proceeds.

2. Rigged Credit Bidding.

3. Lack of Qualified Commissioners.

4. Forced Sale Marketing Pretenses.

5. Sweetheart Insider Trading of Mortgage Loans.

6. Fraudulently Procured Deficiency Judgments.

7. Timing Inconsistencies.

8. Unjust Enrichment Flipping.

9. Vague Conscious-Shocking Test.

10. Sham Third-Party Purchasers.

Please join John and me as we explore yet another often otherwise invisible aspect of government-sponsored theft on the Foreclosure Hour, heard in Hawaii on Sunday at KHVH-AM at 3:00 p.m. Hawaii Time (and simultaneously on the iHeart Radio Internet App at 6:00 p.m. Pacific Time and 9:00 p.m. Eastern Time, which broadcast repeats the following hour).

Gary

.
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

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

U.S. households are still scarred by the financial crisis, new report suggests

U.S. households are still scarred by the financial crisis, new report suggests

MarketWatch-

Even a decade removed from the housing bubble, with the unemployment rate at 20-year lows, the U.S. household is still scarred by the financial crisis.

That’s the contention of a new report from Deutsche Bank economists Matthew Luzzetti, Brett Ryan and Justin Weidner, who talk of a household “savings glut.”

The economists say there’s a large disconnect between household savings and wealth.

Given the typical wealth-to-income ratio, the household savings rate should be closer to 1%. It’s remained about 6%, the economists point out.

[MARKETWATCH]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Fannie Mae Reminds Homeowners and Servicers of Mortgage Assistance Options for Areas Affected by Hurricane Florence

Fannie Mae Reminds Homeowners and Servicers of Mortgage Assistance Options for Areas Affected by Hurricane Florence

Pete Bakel

202-752-2034

WASHINGTON, DC – Fannie Mae (FNMA/OTC) is reminding those impacted by Hurricane Florence of the options available for mortgage assistance. Under Fannie Mae’s guidelines for single-family mortgages:

  • Homeowners impacted by Hurricane Florence are eligible to stop making mortgage payments for up to 12 months, during which time they:
    • will not incur late fees during this temporary payment break
    • will not have delinquencies reported to the credit bureaus
  • Servicers are authorized to suspend or reduce a homeowner’s mortgage payments immediately for up to 90 days without any contact with the homeowner if the servicer believes the homeowner has been affected by a disaster. Payment forbearance of up to 12 months is available in many circumstances.
  • Servicers must suspend foreclosure and other legal proceedings if the servicer believes the homeowner has been impacted by a disaster.

“We want to ensure those in the path of Hurricane Florence have peace of mind and time to focus on their safety,” said Carlos Perez, Senior Vice President and Chief Credit Officer at Fannie Mae. “Fannie Mae and our lending and servicing partners are focused on ensuring assistance is offered to individuals and families in need. We also continue to work with our Multifamily DUS® lenders and borrowers to determine appropriate actions to assist renters impacted by the storm. We urge everyone in the area to be safe, and we encourage homeowners affected by the storm to contact their mortgage servicer for assistance as soon as possible.”

Homeowners can reach out to Fannie Mae directly by calling 1-800-2FANNIE (1-800-232-6643). For more information, please visit www.knowyouroptions.com/relief.

Fannie Mae helps make the 30-year fixed-rate mortgage and affordable rental housing possible for millions of Americans. We partner with lenders to create housing opportunities for families across the country. We are driving positive changes in housing finance to make the home buying process easier, while reducing costs and risk. To learn more, visit fanniemae.com and follow us on twitter.com/fanniemae.

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Freddie Mac Confirms Disaster Relief Policies as Hurricane Florence Approaches

Freddie Mac Confirms Disaster Relief Policies as Hurricane Florence Approaches

MCLEAN, Va., Sept. 12, 2018 (GLOBE NEWSWIRE) — Freddie Mac(OTCQB: FMCC) today reminded Servicers of its disaster relief policies for borrowers who have been affected by Hurricane Florence. Freddie Mac’s disaster relief options are available to borrowers whose homes or places of employment are located in presidentially-declared Major Disaster Areas where federal individual assistance programs are made available to affected individuals and households.

In areas where FEMA has not yet made individual assistance available, mortgage servicers may immediately leverage Freddie Mac’s short-term forbearance programs to provide mortgage relief to their borrowers that have been affected by the hurricane.

“It is important for those in the Carolinas and nearby states to focus on their safety as Hurricane Florence approaches,” said Yvette Gilmore, Freddie Mac’s Vice President of Single-Family Servicer Performance Management. “Once out of harm’s way, we strongly encourage homeowners whose homes or places of employment have been impacted by Hurricane Florence to call their mortgage Servicer—the company to which borrowers send their monthly mortgage payments—to learn about available relief options. We stand ready to ensure that mortgage relief is made available.”

News Facts:

  • Freddie Mac disaster relief policies authorize mortgage servicers to help affected borrowers in eligible disaster areas: those federally-declared Major Disaster Areas where federal individual assistance programs have been extended. A list of these areas can be found on the FEMA’s website.
  • Freddie Mac mortgage relief options for affected borrowers in eligible disaster areas include:
    • Suspending foreclosures by providing forbearance for up to 12 months;
    • Waiving assessments of penalties or late fees against borrowers with disaster-damaged homes; and
    • Not reporting forbearance or delinquencies caused by the disaster to the nation’s credit bureaus.
  • Freddie Mac is reminding servicers to consider borrowers who are impacted by the storm, but who live and work outside of an eligible disaster area, for Freddie Mac’s standard relief policies, which include forbearance and mortgage modifications.
  • Affected borrowers should immediately contact their mortgage servicer—the company to which they send their monthly mortgage payment.
  • See http://www.freddiemac.com/singlefamily/service/natural_disasters.html for a description of Freddie Mac disaster relief policies.

Freddie Mac makes home possible for millions of families and individuals by providing mortgage capital to lenders. Since our creation by Congress in 1970, we’ve made housing more accessible and affordable for homebuyers and renters in communities nationwide. We are building a better housing finance system for homebuyers, renters, lenders, investors and taxpayers. Learn more at FreddieMac.com@FreddieMac and Freddie Mac’s blog.

MEDIA CONTACT:
Chad Wandler
703-903-2446
Chad_Wandler@FreddieMac.com

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

California’s housing crisis is so bad people are living in cars

California’s housing crisis is so bad people are living in cars

Vice-

There is a shortage of affordable housing in every state in the country, but it’s especially bad in California, where more and more people are discovering the only place they can afford to live is inside a car.

There’s only one affordable housing unit for every five extremely low-income households in the state, and the gap isn’t just pushing more and more people out onto the streets — it’s also creating a new, fast-growing, and hidden class of homelessness.

Danielle Williams is one of them. She’s a single working mother who has been living in her van with her daughter for five years. At first, it meant sleeping in dark, scarcely populated areas, and being hassled by the police on a regular basis.

[VICE]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Calif. Gov. Signs Law to Circumvent Mortgage Settlement Fund Usage

Calif. Gov. Signs Law to Circumvent Mortgage Settlement Fund Usage

NMP-

California Gov. Jerry Brown has signed into law a bill authored by the Democrat-controlled legislature that voids a court order mandating the repayment of $331 million to a special fundcreated to help victims of foreclosure abuse during the mortgage crisis.
The Associated Press reports that California received $410 million in the 2012 mortgage settlement between the states and the nation’s major mortgage companies. However, the state legislature passed a law to divert that money into paying off the deficits of agencies responsible for state housing bonds and consumer programs. Three non-profits sued California in 2014, and a state appeals court in Sacramento ruled in July that the money should be spent on programs directly assisting foreclosed homeowners.
The new law includes a statement that the Department of Finance followed legislative guidelines in the allocation of the settlement funds, adding that legislators were “aware of, and approved, the allocations and expenditures in question.” Faith Bautista, President of the National Asian American Coalition, one of the non-profits that sued the state, denounced the new law.
[NMP]
© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

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

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

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

.

Sunday – September 9, 2018

TFH 9/9 | Special Robo-Signer Exclusive Expose (January 12, 2014 Rebroadcast)

.

 ———————

 

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.
>
> While I am on the U.S. Mainland this weekend, it is once again 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 and others have called “The Great Deception”.
>
> And there is no better way of doing so than revisiting the startling video-taped admissions, exclusively broadcast by The Foreclosure Hour 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.

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

.
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

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Judge OKs $480-million settlement with Wells Fargo shareholders over unauthorized-accounts scandal

Judge OKs $480-million settlement with Wells Fargo shareholders over unauthorized-accounts scandal

LA TIMES-

A federal judge in San Francisco has signed off on a $480-million settlement in a class-action shareholder lawsuit over Wells Fargo’s unauthorized-accounts scandal.

The deal, granted preliminary approval late Tuesday, would compensate Wells Fargo & Co. shareholders for losses they suffered after the bank in 2016 acknowledged it had created perhaps millions of accounts without customers’ authorization.

Shareholders, including lead plaintiff Union Asset Management, sued for securities fraud, arguing that executives had inflated the bank’s stock price by claiming for years that Wells Fargo was a leader in so-called cross-selling — getting customers to sign up for numerous accounts and services.

[LA TIMES]

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Wells Fargo Said to Face DOJ Probe of Wholesale-Banking Unit

Wells Fargo Said to Face DOJ Probe of Wholesale-Banking Unit

Bloomberg-

Wells Fargo & Co. is facing a Department of Justice investigation into whether employees in the company’s wholesale-banking business improperly altered customer data, a person familiar with the matter said.

The changes were made to meet a regulatory deadline, the Wall Street Journal reported earlier Thursday.

 “This particular situation involved a new process and a new required document called Certification of Beneficial Owners that our team members have to complete to help ensure we know our customers,” said Alan Elias, a spokesman for the San Francisco-based bank. “We’ve recognized that in certain circumstances additional training and new procedures were needed and have now been applied.”
© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

The story of a house: how private equity swooped in after the subprime crisis

The story of a house: how private equity swooped in after the subprime crisis

Blackstone has bought thousands of properties that were caught up in the mortgage meltdown

FT-

For personal trainer Trevor Pace, the house at 418 Homeplace Drive in Stockbridge was more than just a mansion-style home with a fireplace in the bedroom and a jacuzzi en suite.

“It was everything we had dreamt,” says Mr Pace, who moved into the house in 2001 together with his wife, Colleen, and their two children. It was the first place they had called their own.

Yet five years later, a French bank bought a financial security that was, in effect, a bet that the Paces would default on their mortgage and be forced to leave their comfortable suburban home.

[FT]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Pittman v. Experian Information Solutions | 6th Circuit holds that failing to report a trial modification plan can constitute incomplete reporting under FCRA

Pittman v. Experian Information Solutions | 6th Circuit holds that failing to report a trial modification plan can constitute incomplete reporting under FCRA

Lexology-

6th Circuit holds that failing to report a trial modification plan can constitute incomplete reporting under FCRA

On August 23, the U.S. Court of Appeals for the 6th Circuit held that a borrower met the requirements necessary for a Fair Credit Reporting Act (FCRA) claim to proceed when two mortgage servicers failed to report the existence of a trial modification plan when reporting the borrower was delinquent to reporting agencies. In 2014, a borrower brought an action against three credit reporting agencies and two mortgage servicers alleging, among other claims, violations of the FCRA due to payments being reported as past due while successfully making payments under a trial modification plan (also referred to as a Trial Period Plan, or “TPP”) and working towards a permanent modification. Regarding the FCRA claim, the 6th Circuit reversed the lower court’s decision granting the servicers’ motion for summary judgment, finding that the borrower met the statutory requirements for an FCRA claim because failing to report the existence of a TPP can constitute “incomplete reporting” in violation of the statute. The 6th Circuit rejected the servicers’ argument that the Home Affordable Modification Program guidelines “encouraged, but did not require” that they report a TPP. The court acknowledged this distinction but noted that “[r]eporting that [a borrower] was delinquent on his loan payments without reporting the TPP implies a much greater degree of financial irresponsibility than was present here.” The court remanded the case to the district court to determine whether the servicers conducted a reasonable investigation after the borrower disputed the reporting

Buckley Sandler InfoBytes- Pittman v. Experian, Et Al 6th Circuit Opinion 2018.08.23 by DinSFLA on Scribd

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Residential Mortgage. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita | Young Law Group Beats Another Mortgage Lender With Statute of Limitations Dismissal!

Residential Mortgage. Loan Trust 2013-TT2, BY U.S. Bank N.A. v Fiorita | Young Law Group Beats Another Mortgage Lender With Statute of Limitations Dismissal!

Residential Mtge. Loan Trust 2013-TT2, By U.S. Bank N.a. v Fiorita (2018 NY Slip Op 51240(U))- Sup Ct Suff… by DinSFLA on Scribd

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

TFH 9/2 | Foreclosure Workshop #66: Blackrock v. U.S. Bank; and the Florida Bar and Grievance Committee v. Stopa — The National War Against Foreclosure Defense Attorneys Continues To Suppress Exposure of Massive Foreclosure Securities Fraud

TFH 9/2 | Foreclosure Workshop #66: Blackrock v. U.S. Bank; and the Florida Bar and Grievance Committee v. Stopa — The National War Against Foreclosure Defense Attorneys Continues To Suppress Exposure of Massive Foreclosure Securities Fraud

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 – September 2, 2018

Foreclosure Workshop #66: Blackrock v. U.S. Bank; and the Florida Bar and Grievance Committee v. Stopa — The National War Against Foreclosure Defense Attorneys Continues To Suppress Exposure of Massive Foreclosure Securities Fraud

.

 ———————

 

Recently there have been two major developments in the foreclosure field, seemingly completely unrelated to one another, yet in reality highly interrelated.

The first major development is the ongoing 2015 Blackrock class action lawsuit in New York County Supreme Court, brought by hundreds of securitized trust major investors, including insurance companies and investment trusts, against U.S. Bank serving as Trustee for 770 securitized trusts, each with its own pooling and servicing agreement, which class action, surviving motions to dismiss just this year, has now been allowed to go forward in 2018 on its breach of contract claims.

These breach of contract claims by investors address deficiencies by U.S. Bank in the management of its securitized trusts, including “failure to ensure delivery of mortgage loan files” into the trusts, which of course is of special importance to individual mortgage borrowers challenging the pretender lender standing of securitized trustees suing for foreclosure while alleging possession and ownership of those loan files.

The second major development is the emergency interim suspension by the Florida Supreme Court of well known and highly successful Florida trial and appellate foreclosure defense attorney Mark Stopa for supposedly posing “great harm to the public” after one County Judge sitting as referee recommended his suspension, despite reportedly that ten other Florida judges had “testified glowingly of [Stopa’s] superior legal abilities and ethical behavior” in hearings this spring concerning a relatively few client complaints against him, and at the end of August agents of the Florida Department of Law Enforcement even raided Stopa’s Law Office, removing boxes of client files.

After all, the majority view still seems to be that borrowers are deadbeats and having no real defenses, attorneys representing borrowers are unethically merely preying on vulnerable deadbeats.

What do these two seeming separate developments in Blackrock and Stopa have in common?

Together they highlight the interrelated nature of the indefensible double standard being applied both to the ethical supervision of foreclosure defense attorneys in the United States compared to their foreclosing attorney counterparts, and to the judicial supervision of securitized trustees in foreclosure litigation compared to lawsuits by investors against securitized trustees.

And the interconnection between the two developments is the national war against foreclosure defense attorneys by Bar regulators, encouraged by foreclosure attorneys, which is the major reason that borrowers, lacking in defense resources, continue to be disadvantaged in foreclosure litigation.

Even emergency interim suspension was matter-of-factly recently sought against the undersigned by Hawaii Bar regulators claiming, for instance, that The Foreclosure Hour was “a menace to the general public,” supposedly the show guaranteeing clients favorable outcomes, which is not only untrue as everyone of our listeners knows, but absurd, and fortunately the Hawaii Supreme Court recently denied that emergency petition so we are still on the air.

Meanwhile, while foreclosure defense has become more and more a low paying and truly hazardous occupation, pretender lenders and their foreclosure attorneys, both richly compensated, continue to go ethically unsupervised by Bar Regulators, who like the legendary Mr. Magoo prefer to overlook outright forgery, perjury, dishonesty, and theft of homes, dozens of examples of which committed in court have been exposed on previous Foreclosure Hour shows and will be summarized today, time permitting, for any legislators, judges, and Bar regulators who may be listening and genuinely interested in stopping such dishonest practices.

Those practices, being indirectly exposed in the Blackstone class action having to do with covering up the widespread failure, for instance, of having delivered loan documents into the securitized trusts, are: false swearing by robo-signing documents recorded and filed in court, authenticating so-called original promissory notes by false testimony, assigning of mortgages to trusts that at the time did not even exist, loan servicers falsely claiming ownership of loans ordered blatantly to do so by Fannie Mae and Freddie Mac Servicing Guidelines, unethical control of foreclosure cases and counsel compensation by third parties hidden owners Fannie Mae and Freddie Mac, foreclosure attorney representation of non-existing clients, conflicts of interest of foreclosing attorneys representing both sides, use of manufacturing plants creating false “original” loan documentation, false appraisals, false loan applications, and false underwriting, and more.

And in closing, perhaps the final irony and double standard of them all is when courts treat mortgage transactions in aptly named securitized trusts as securities transactions from the enforcement perspective of trust investors, but merely as traditional mortgage loan transactions from the enforcement perspective of foreclosure courts.

Gary Dubin

.
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

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Investment Firms Sue US Bank Over RMBS Trust Losses

Investment Firms Sue US Bank Over RMBS Trust Losses

LAW 360-

BlackRock, Prudential and other investment firms have sued US Bank in New York state court, alleging it ignored “pervasive and systemic” issues in the underlying loan pools of 21 residential mortgage-backed securities trusts it administers, which were secured by more than $18.3 billion at the time of securitization.

The proposed class action filed Monday alleges the bank — described as the nation’s largest corporate trustee, with nearly one-third of all structured financial trust business — has a fiduciary duty and a contractual obligation to enforce their…

[LAW 360]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Bank of America freezes account of immigrant Ph.D candidate who’s studied in U.S. for seven years

Bank of America freezes account of immigrant Ph.D candidate who’s studied in U.S. for seven years

Dallas News-

Saeed Moshfegh woke up earlier this month to discover the strangest thing: though he had plenty of money in his Bank of America account, he couldn’t access it.

An Iranian getting his Ph.D in physics at the University of Miami in Florida, Moshfegh used the account for everyday transactions. All he had to do to maintain the account was show proof of legal residency every six months.

“I think it’s onerous, but I’d been doing it,” said Moshfegh, who has lived in the U.S. for the past seven years. He recently married an American.

[DALLAS NEWS]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Supreme Court Could Kill Some Foreclosure Collection Lawsuits

Supreme Court Could Kill Some Foreclosure Collection Lawsuits

Bloomberg-

The fate of potentially thousands of lawsuits challenging nonjudicial foreclosures is up for grabs after the U.S. Supreme Court on June 28 agreed to hear a case that will determine whether federal debt collection laws apply to out-of-court home repossessions.

The high court elected to hear an appeal of a Jan. 19 ruling in the U.S. Court of Appeals for the Tenth Circuit that found that the Fair Debt Collection Practices Act does not apply to foreclosures that are not done with a judge’s supervision.

While the specifics of the case turn on narrow technical readings of the FDCPA, a 1977 law that aimed to stop abusive debt collection practices, the stakes of the case are high.

[BLOOMBERG]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Debt-Collection Dispute Gets U.S. Supreme Court Review

Debt-Collection Dispute Gets U.S. Supreme Court Review

Bloomberg-

The U.S. Supreme Court agreed to decide whether thousands of borrowers can invoke a federal debt-collection law when they are facing foreclosure.

The justices said they will hear an appeal from a Colorado man who defaulted on a $330,000 home loan in 2009 and is now battling a law firm that sought foreclosure on behalf of lender Wells Fargo & Co.

The issue is whether the Fair Debt Collection Practices Act, which protects borrowers, applies in foreclosure proceedings that take place outside the court system. Lower courts are divided on the question.

[BLOOMBERG]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Kavanaugh: Good for Corporations, Bad for Your Wallet

Kavanaugh: Good for Corporations, Bad for Your Wallet

Better Markets-

With the Senate Judiciary Committee poised to open hearings to consider Judge Brett Kavanaugh’s nomination to be an Associate Justice of the Supreme Court, Better Markets is issuing a report examining his record on economic and financial cases.  The detailed report finds that Judge Kavanaugh wants to cut back on investor protections and limit agency authority, consistently favoring business interests over American consumers.

The report, “A Supreme Court Justice Kavanaugh: Good for Corporations, Bad for Your Wallet” reviews key pending Supreme Court cases, analyzes Judge Kavanaugh’s record as a judge on the D.C. Circuit in economic and financial cases, and surveys some of the most important legal holdings in the financial arena, showing the profound impact that these cases have on the economic well-being of every American.

“If you care about what’s in your wallet, you should be very worried if Judge Kavanaugh becomes Justice Kavanaugh on the Supreme Court,” said Better Markets President and CEO Dennis Kelleher.  “Anyone who gets a paycheck, has a savings or checking account, uses a credit card or debit card, or conducts financial transactions of any shape or form—in other words, every single American—should care about how a Justice Kavanaugh would rule on critical financial issues that directly impact every American family.”

[BETTER MARKETS]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

New York Federal Court Holds County Tax Foreclosure May Constitute Fraudulent Conveyance

New York Federal Court Holds County Tax Foreclosure May Constitute Fraudulent Conveyance

Lexology-

The United States District Court for the Western District of New York recently reversed a Bankruptcy Court’s dismissal of an action and held that sales arising from tax foreclosures may be avoidable as fraudulent transfers. See Hampton v. Ontario Cty., New York, 2018 WL 3454688 (W.D.N.Y. July 18, 2018). The case involves two adversary proceedings commenced by homeowners against the County of Ontario (the “County”). In each matter, the County foreclosed on plaintiffs’ homes after plaintiffs failed to pay property taxes. In one case the plaintiffs owed about $1,200 in taxes and in the other they owed about $5,200. After the County obtained a final judgment in each matter, the plaintiff homeowners filed Chapter 13 bankruptcy petitions and then adversary proceedings against the County, alleging that the taking of their homes were constructively fraudulent transfers under 11 U.S.C. § 548(a)(1)(B) due to the disparity between the value of the homes and the minimal taxes owed. The County proceeded to sell the properties—one for $22,000 and one for $27,000—under a stipulation that the sales were subject to the determination in the adversary proceedings. The County moved to dismiss the actions, and the Bankruptcy Court granted the motion. In doing so, it cited BFP v. Resolution Trust Corp., 511 U.S. 531 (1994), where the United States Supreme Court held that a reasonably equivalent value for foreclosed property “is the price in fact received at the foreclosure sale, so long as all the requirements of the State’s foreclosure law have been complied with[.]”.

[LEXOLOGY]

also

NCBRC-

A tax sale was avoidable as constructively fraudulent where the state tax foreclosure sale procedures did not include notice and bidding procedures likely to result in the debtors’ receiving “reasonably equivalent value.” Hampton v. Ontario County, No. 17-6808, and Gunsalus v. Ontario County, No. 17-6810 (W.D. N.Y. July 18, 2018).

In two separate cases with substantially identical facts, the Western District of New York addressed whether the bankruptcy court improperly dismissed the debtors’ adversary proceeding seeking to avoid the transfers of the debtors’ homes in tax sales.

Gliee and Brian Gunsalus, and Joseph and Brenda Hampton, owned their homes free and clear of mortgages. When both couples failed to pay county taxes, Ontario County instituted foreclosure actions in accordance with state law, and foreclosure judgments were entered against the homeowners. Both couples filed chapter 13 bankruptcy plans proposing to pay the tax arrears in full. The homes were sold at auction and the buyers notified of the pending adversary proceeding. The surplus from the sale of the properties went to the county.

[NCBRC]

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Lender’s “Boilerplate” Disavowal Dooms Rescission of a Common Loan Modification Agreement

Lender’s “Boilerplate” Disavowal Dooms Rescission of a Common Loan Modification Agreement

LEXOLOGY-

In a case with potentially broad implications, the Sixth Circuit becomes the first federal circuit court to hold that the Truth in Lending Act provides no right to rescind a loan modification agreement entered into with a successor creditor. TILA exempts from rescission “refinancing” transactions with “the same creditor secured by an interest in the same property” but not “refinancing” with a different creditor.

The case impacts those borrowers whose loans were assigned after origination (an everyday occurrence), and who seek rescission after receiving a common form of modification that lowered their interest rate, recalculated the principal due to include only the unpaid balance plus earned finance charges and premiums for continuation of insurance, and perhaps even extended their payment schedule.

Regulation Z provides that a “refinancing occurs when an existing obligation … is satisfied and replaced by a new obligation undertaken by the same consumer” and that a refinancing does not include a “reduction in the annual percentage rate with a corresponding change in the payment schedule.”

[LEXOLOGY]

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

DEROUIN v. UNIVERSAL AMERICAN MORTGAGE COMPANY, LLC | FL 2nd DCA – compliance with 24 C.F.R. § 203.604 is a condition precedent to foreclosure, and the trial court erred in finding that the Derouins waived Universal’s compliance with the HUD regulations, we reverse and remand for entry of an order of involuntary dismissal

DEROUIN v. UNIVERSAL AMERICAN MORTGAGE COMPANY, LLC | FL 2nd DCA – compliance with 24 C.F.R. § 203.604 is a condition precedent to foreclosure, and the trial court erred in finding that the Derouins waived Universal’s compliance with the HUD regulations, we reverse and remand for entry of an order of involuntary dismissal

 

RICHARD J. DEROUIN and KIM E. DEROUIN, Appellants,
v.
UNIVERSAL AMERICAN MORTGAGE COMPANY, LLC, a Florida limited liability company, Appellee.

Case No. 2D17-1002.
District Court of Appeal of Florida, Second District.
Opinion filed August 22, 2018.
Appeal from the Circuit Court for Pasco County; Alicia Polk, Judge.

Dineen Pashoukos Wasylik and Jared M. Krukar of DPW Legal, Tampa, for Appellants.

Laura H. Howard and Stanford R. Solomon of The Solomon Law Group, P.A., Tampa, for Appellee.

LaROSE, Chief Judge.

Richard and Kim Derouin appeal a final foreclosure judgment entered in favor of Universal American Mortgage Company, LLC. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The Derouins contend that Universal failed to engage in the face-to-face meeting required by 24 C.F.R. § 203.604 (2012) prior to filing the foreclosure lawsuit. Critical to our resolution of this matter, they maintain that the trial court erred in finding that they waived Universal’s compliance with the federal regulations. Because the record before us does not show waiver, we reverse and remand for entry of an order of involuntary dismissal.

Background

Universal loaned money to the Derouins to buy a home. The loan, insured by the Federal Housing Administration, was memorialized by a note and secured by a mortgage. The note provided that, if the Derouins defaulted, Universal “may, except as limited by regulations of the Secretary [of Housing and Urban Development] in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. . . . This Note does not authorize acceleration when not permitted by HUD regulations.” (Emphasis added).

The HUD regulations upon which the Derouins rely provide, in relevant part, as follows: “The mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid.” 24 C.F.R. § 203.604(b).[1] The regulations also cabin the mortgagee’s ability to foreclose until the face-to-face interview is conducted. See 24 C.F.R. § 203.500 (“This subpart identifies servicing practices of lending institutions that HUD considers acceptable for mortgages insured by HUD. . . . It is the intent of the Department that no mortgagee shall commence foreclosure or acquire title to a property until the requirements of this subpart have been followed.”).

The regulations establish several exceptions to the face-to-face meeting requirement, two of which apply here. First, a mortgagee may be excused from conducting the interview when “[t]he mortgagor has clearly indicated that he will not cooperate in the interview.” 24 C.F.R. § 203.604(c)(3). Second, a meeting is unnecessary when “[a] reasonable effort to arrange a meeting is unsuccessful.” 24 C.F.R. § 203.604(c)(5). “A reasonable effort to arrange a face-to-face meeting with the mortgagor” includes “at a minimum . . . one letter sent to the mortgagor certified by the Postal Service as having been dispatched” and “at least one trip to see the mortgagor at the mortgaged property.” 24 C.F.R. § 203.604(d).

Universal sued the Derouins after they defaulted on their loan payments. Universal alleged that “[a]ll conditions precedent to commencement and maintenance of this action have been performed, satisfied[,] or otherwise discharged.” The Derouins answered the complaint, denied the substantive allegations, and asserted several affirmative defenses. Universal replied to the affirmative defenses.

With the trial court’s permission, the Derouins filed a second amended answer. See Thompson v. Jared Kane Co., Inc., 872 So. 2d 356, 360 (Fla. 2d DCA 2004)(“The Florida Rules of Civil Procedure reflect a clear policy that, absent exceptional circumstances, requests for leave to amend pleadings should be granted.”). In that pleading, the Derouins specifically denied that Universal satisfied all conditions precedent to filing suit. Specifically, they alleged that Universal had failed to conduct, or otherwise attempt to conduct, a face-to-face meeting within ninety days of default. The Derouins also raised a corresponding affirmative defense: Universal “[f]ailed to make face-to-face contact or failed to make reasonable attempts to contact Defendants face-to-face as required by 24 C.F.R. § 203.604.” Universal did not reply to this new defense.

Following trial, the trial court granted the Derouins’ motion for involuntary dismissal based on an evidentiary issue not before us. Universal moved for rehearing. The Derouins opposed that motion, arguing that there were several alternative bases supporting dismissal, including Universal’s failure to comply with HUD’s face-to-face meeting requirement.

The trial court granted Universal’s rehearing motion, finding that the Derouins had “waived their right to seek compliance with 24 C.F.R. § 203.604.” The trial court relied on Ms. Derouin’s trial testimony “that shortly after the default, she received a telephone call from the Plaintiff or Plaintiff’s servicer and that she no longer wished to deal directly with [them].” The trial court observed that the Derouins “were not prejudiced by the lack of a [face-to-face] meeting,” and that Universal could not reasonably be expected to engage in such a meeting “[a]fter Ms. Derouin communicated to [Universal] that she was not to be contacted directly.” The trial court awarded Universal a final judgment of foreclosure.

Standards of Review

The record compels us to employ several standards of review. To the extent that we review the trial court’s interpretation of the note, we utilize de novo review. See Mgmt. Comput. Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627, 630 (Fla. 1st DCA 1999) (“[A] decision interpreting a contract presents an issue of law that is reviewable by the de novo standard of review.”). “However, the trial court’s order in this case is based-at least in part-on findings of fact and legal conclusions regarding an alleged [waiver]. We defer to the [trial] court’s findings of fact when they are based on competent, substantial evidence.” U.S. Bank Nat’l Ass’n v. Rios, 166 So. 3d 202, 207 (Fla. 2d DCA 2015). Yet, we are not obligated “to disregard record evidence that disproves the lower court’s findings or that reveals its ruling to be an abuse of discretion.” In re Doe, 932 So. 2d 278, 284 (Fla. 2d DCA 2005).

Because the trial court’s grant of rehearing, which vacated the prior dismissal order and resulted in entry of a final judgment, was not based upon competent substantial evidence, we reverse. Moreover, because our de novo review of the note demonstrates that involuntary dismissal was appropriate, we order such relief on remand. See Simpson v. State, 33 So. 3d 776, 778 (Fla. 4th DCA 2010) (“The standard of review of a trial court’s denial of a motion to dismiss is de novo.”); Perez v. Perez, 973 So. 2d 1227, 1231 (Fla. 4th DCA 2008) (“An involuntary dismissal is properly entered only where the evidence considered in the light most favorable to the non-moving party fails to establish a prima facie case.”); Robinson v. Wright, 425 So. 2d 589, 589 (Fla. 3d DCA 1982) (“Where no evidence [i]s presented in a non-jury trial to establish a prima facie case, it [i]s proper to grant defendant’s motion . . . for involuntary dismissal. . . .”).

Analysis

I. 24 C.F.R. § 203.604 as a condition precedent

The parties tacitly agree that the face-to-face meeting requirement is a condition precedent to filing a foreclosure lawsuit. For purposes of this appeal, we assume the same. See, e.g., ARC HUD I, LLC v. Ebbert, 212 So. 3d 513, 515-16 (Fla. 2d DCA 2017) (reversing an award of summary judgment because the mortgagee created an issue of material fact as to whether an exception applied to the “condition precedent” of a face-to-face interview); White v. Planet Home Lending, LLC, 234 So. 3d 802, 803 n.1 (Fla. 4th DCA 2018) (“Absent evidence that Appellee engaged in a face-to-face interview with Appellant before the former filed its foreclosure complaint or that any exception to the interview requirement applied, it would be appropriate to enter an involuntary dismissal of Appellee’s foreclosure complaint.” (citing McIntosh v. Wells Fargo Bank, N.A., 226 So. 3d 377, 379 (Fla. 5th DCA 2017))); Harris v. U.S. Bank Nat’l Ass’n, 223 So. 3d 1030, 1032 (Fla. 1st DCA 2017) (holding that compliance with face-to-face meeting requirement was a condition precedent to initiating foreclosure action); Palma v. JPMorgan Chase Bank, Nat’l Ass’n, 208 So. 3d 771, 773, 775 (Fla. 5th DCA 2016)(holding that mortgage language providing, in the event of a default, the debt could be accelerated “except as limited by regulations of the Secretary . . . of Housing and Urban Development” incorporated the federal regulations, including the face-to-face interview requirement, as a condition precedent to filing suit); cf. Laws v. Wells Fargo Bank, N.A., 159 So. 3d 918, 919 (Fla. 1st DCA 2015) (reversing mortgagee’s award of summary judgment because mortgagor was “entitled to raise failure to comply with [HUD regulations] as a valid defense to foreclosure”).

Seemingly, the case law is unsettled as to whether noncompliance with the regulations must be raised as an affirmative defense or as a specific denial in an answer. Compare Palma, 208 So. 3d at 774 (“We find that the trial court erred by requiring Appellant to raise Bank’s noncompliance with section 203.604 as an affirmative defense.”), with Harris, 223 So. 3d at 1033 (“A `defending party’s assertion that a plaintiff has failed to satisfy conditions precedent necessary to trigger contractual duties under an existing agreement is generally viewed as an affirmative defense, for which the defensive pleader has the burden of pleading and persuasion.'” (quoting Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1096 (Fla. 2010))). But see Chrzuszcz v. Wells Fargo Bank, N.A., 43 Fla. L. Weekly D1486, D1487 (Fla. 1st DCA June 28, 2018) (“Here, as in Palma, where the Bank asserted in the complaint that all conditions precedent had been satisfied, but the Borrower denied that assertion with the specific claim that the Bank failed to meet the face-to-face counseling requirement of section 203.604, the burden of proving the condition precedent was shifted back to the Bank.”).

We need not weigh in on the conflict. See Pagan v. Sarasota Cty. Pub. Hosp. Bd., 884 So. 2d 257, 264 (Fla. 2d DCA 2004) (“It is a long-standing rule of appellate jurisprudence that the appellate court should not undertake to resolve issues which, though of interest to the bench and bar, are not dispositive of the particular case before the court.”). As the Derouins inform us, “in an abundance of caution” they raised noncompliance as both an affirmative defense and as a specific denial.[2] Consequently, as the pleadings progressed below, Universal had to demonstrate its compliance with the regulations or that its compliance was excused. See McIntosh, 226 So. 3d at 379 (“Here, Borrowers raised noncompliance with § 203.602 and the terms of the note and mortgage as both a specific denial and an affirmative defense. Thus, the burden remained on Wells Fargo to demonstrate compliance with the applicable HUD regulations.”). As we shall explain, Universal demonstrated neither.

II. Whether the Derouins waived compliance

Whether the Derouins waived Universal’s compliance with the face-to-face meeting requirements begets an antecedent inquiry of whether the trial court could consider the issue.

A. Universal did not avoid the noncompliance affirmative defense

“In pleading to a preceding pleading a party shall set forth affirmatively. . . . waiver, and any other matter constituting an avoidance or affirmative defense.” Fla. R. Civ. P. 1.110(d) (emphasis added). “As a matter of law, waiver . . . [is an] affirmative defense[] that must be pleaded.” Louie’s Oyster, Inc. v. Villaggio Di Las Olas, Inc., 915 So. 2d 220, 223 (Fla. 4th DCA 2005) (emphasis added). Once the Derouins raised noncompliance as an affirmative defense, Universal should have replied if it sought to avoid the defense. “If an answer . . . contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.” Fla. R. Civ. P. 1.100(a); see, e.g., Reno v. Adventist Health Sys./Sun-Belt, Inc., 516 So. 2d 63, 64-65 (Fla. 2d DCA 1987) (“[A] reply to an affirmative defense is necessary only in order to entitle the plaintiff to, in effect, prove an affirmative defense to an affirmative defense.”); see also Kitchen v. Kitchen, 404 So. 2d 203, 205 (Fla. 2d DCA 1981) (“[I]t is only when `new matter’ is sought to be asserted to avoid the affirmative defense that a reply is required. Consequently, where, as here, the plaintiff does not seek to avoid the substantive allegation of the defendant’s affirmative defense, he need not file . . . a reply.”); Lazar v. Allen, 347 So. 2d 457, 458 (Fla. 2d DCA 1977) (“Where a party files no reply to an affirmative defense, this merely denies (as opposed to avoids) the affirmative defense.” (citing Fla. R. Civ. P. 1.110(e))).

After all, “[l]itigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are.” Bank of Am., N.A. v. Asbury, 165 So. 3d 808, 809 (Fla. 2d DCA 2015). “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.” Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989). Because Universal failed to address the waiver issue by reply to an affirmative defense, the trial court could not award Universal relief on such a basis. See, e.g., Wolowitz v. Thoroughbred Motors, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (“Since the defense was waived, it should not have been considered by the trial court, much less used as the basis for granting summary judgment.”); Frisbie v. Carolina Cas. Ins. Co., 162 So. 3d 1079, 1081 (Fla. 5th DCA 2015)(“Here, because Appellee raised the issue of unclean hands as an avoidance of Appellants’ two affirmative defenses, Appellee should have pleaded the issue in a reply to Appellants’ answer. . . .”); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (“The trial court erred when it relied on a defense not raised by the pleadings to grant the motion for involuntary dismissal.”).

B. The Derouins’ specific denial

Universal fares no better against the Derouins’ specific allegation that it “[f]ailed to make face-to-face contact or failed to make reasonable attempts to contact [the Derouins] face-to-face as required by 24 C.F.R. § 203.604.” Their specific denial shifted the burden to Universal to prove compliance or an exception to compliance. See Nelson v. Hillsborough County, 189 So. 3d 1037, 1039 (Fla. 2d DCA 2016)(“Provided such compliance is specifically denied by the defendant, the burden shifts `to the plaintiff to prove the allegations concerning the subject matter of the specific denial.'” (quoting Sheriff of Orange Cty. v. Boultbee, 595 So. 2d 985, 987 (Fla. 5th DCA 1992))). Universal failed on both fronts. See 24 C.F.R. § 203.604(c)(3), (5). Although the trial court’s order granting Universal’s rehearing motion failed to specify which of the five enumerated exceptions it relied on to find waiver, subsections (3) and (5)[3] most aptly apply. See 24 C.F.R. § 203.604(c)(1)-(5).

i. 24 C.F.R. § 203.604(c)(3)

At trial, Ms. Shannon Georgantas, a senior staff account manager for Universal, admitted that Universal paid no visit to the Derouins’ residence for the purpose of conducting the face-to-face meeting. Elaine Marie Henning, an employee of Universal’s loan servicer, conceded that neither Universal nor its servicer requested a face-to-face meeting with the Derouins in the three-month period following their initial default.

Ms. Henning testified that the servicer’s records reflected that the servicer called the Derouins’ residence roughly forty-five days after default. Apparently, Ms. Derouin instructed the servicer to “only contact [the Derouins’] attorney, he is now handling everything. . . . She will not speak or give any info to us.” Ms. Henning offered that the servicer did not “go out and knock on the Derouin[s’] door” because “[w]e were told to direct everything to her attorney.” Curiously, the servicer continued to mail letters directly to the Derouins. Ms. Henning admitted that there had been no request of the Derouins, or their attorney, for the required face-to-face meeting.

Ms. Derouin testified that the servicer never offered a face-to-face meeting. She also testified that she never told Universal or its servicer that she was unwilling to conduct a face-to-face meeting “because they didn’t offer.” Ms. Derouin readily admitted, that when she spoke on the phone with the servicer, she “told them that I contacted an attorney and they should direct all questions to the attorney.” She denied that she “ever indicated to them that [she was] no longer open to a face-to-face meeting notwithstanding [she] hired an attorney.”

We cannot say that the Derouins clearly indicated that they would not engage in the face-to-face meeting. Indeed, if Universal never offered such an opportunity, it cannot be the case that the Derouins demonstrated a reluctance or refusal to meet sufficient to excuse Universal’s obligations. We are even less inclined to conclude that Ms. Derouin’s statement that Universal or its servicer should speak to her lawyer constitutes a clear indication that she was unwilling to cooperate in the face-to-face interview. There was no evidence Universal or its servicer was prohibited from asking the Derouins for a face-to-face meeting through their attorney, nor was there any evidence that the Derouins would not participate in one if asked.

In an apparent effort to buttress its waiver finding, the trial court pointed out that the Derouins “had no interest in mediation.” Section 203.604 does not mandate postfiling mediation. Ms. Derouin’s rejection of mediation after suit was filed is not indicative of her willingness to meet face-to-face prior to filing. In any event, postfiling actions cannot cure Universal’s failure to comply with section 203.604. A party’s right to sue “must be measured by the facts as they exist when the suit was instituted.” Voges v. Ward, 123 So. 785, 793 (Fla. 1929) (holding that party did not have a right to repossess a car when it filed suit before it possessed the notes necessary to have the right to repossession under the contract).

ii. 24 C.F.R. § 203.604(c)(5)

Section 203.604(c)(5) excuses the face-to-face meeting requirement where “[a] reasonable effort to arrange a meeting is unsuccessful.” However, this presupposes that an effort was made. Universal’s witnesses, Ms. Georgantas and Ms. Henning, as well as Ms. Derouin, testified that neither Universal nor its servicer made any such effort. Thus, the trial court’s finding of waiver is unsupported under this claimed exception.

III. Trial by consent

Universal urges that the parties tried the waiver issue by consent. See Fla. R. Civ. P. 1.190(b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”).

An exception to the rule requiring relief to be pled is if the issue is tried by consent of the parties. “When issues not raised by the pleadings are tried by express or implied consent, they shall be treated in all respects as if they had been raised in the pleadings.” An issue is tried by consent “when there is no objection to the introduction of evidence on that issue.”

Fed. Home Loan Mortg. Corp. v. Beekman, 174 So. 3d 472, 475 (Fla. 4th DCA 2015) (first quoting Fla. R. Civ. P. 1.190(b); then quoting Scariti v. Sabillon, 16 So. 3d 144, 145-46 (Fla. 4th DCA 2009)). We reject Universal’s position.

Although an unpleaded issue may be tried by consent when a party fails to object to the introduction of evidence on that issue:

[I]n order to rely on questions and answers not objected to during trial as evidencing the opposing party’s implied consent to try unpled issues, it must be shown that such questions and answers are irrelevant to any pled issues; the failure to object cannot be taken as implied consent to try unpled issues when there is no occasion for such party to object that such evidence is irrelevant to the issues being tried.

Bilow v. Benoit, 519 So. 2d 1114, 1116 (Fla. 1st DCA 1988). Stated differently, “[a] failure to object cannot be construed as implicit consent to try an unpled theory when the evidence introduced is relevant to other issues properly being tried.” Raimi v. Furlong, 702 So. 2d 1273, 1285 (Fla. 3d DCA 1997); see also Nichols v. Michael D. Eicholtz, Enter., 750 So. 2d 719, 720 (Fla. 5th DCA 2000) (“We reject appellee’s argument that the parties tried the unpled action on an express contract by implied consent because an unpled theory may not be tried by implied consent when the evidence presented at trial is relevant to other issues which are properly being tried.”).

Universal argues that the Derouins consented to try the waiver issue by presenting evidence of Ms. Derouin’s request that Universal or its servicer contact her attorney. However, this evidence was relevant to the Derouins’ pleaded affirmative defense that Universal failed to make a reasonable effort to arrange a face-to-face meeting. See 24 C.F.R. § 203.604(c)(3), (5). The evidence was unrelated to Universal’s unpleaded avoidance.

In further support of its trial by consent argument, Universal notes the trial court’s request for posttrial written memoranda on the waiver issue. Universal apparently maintains that the Derouins’ failure to contemporaneously object to the trial court’s request evidenced that the parties tried the waiver issue by consent.

This argument is unavailing for two reasons. First, because the trial court sought written argument on the issue, we cannot conceive of why the Derouins would have been required to lodge a contemporaneous oral objection. Second, in accordance with the trial court’s request, the Derouins explained in their written memorandum that waiver was unavailable as an avoidance because Universal did not plead it. To the extent a contemporaneous objection is even necessary to prevent an unpleaded issue from being tried by consent, we believe that the Derouins’ written closing argument was tantamount to such an objection. See, e.g., Da Cunha v. Mann, 183 So. 3d 1113, 1115-16 (Fla. 3d DCA 2015) (stating that an issue was not tried by consent when the opposing party raised an objection upon receipt of the written order); cf. Givens v. Holmes, 241 So. 3d 232, 235 (Fla. 2d DCA 2018) (explaining that failure to raise contemporaneous objection did not preclude appellate review of issue “[b]ecause the trial court abruptly ended the hearing without articulating any findings or announcing the particular terms of the final judgment”).

Further, in their opening statement at trial, the Derouins proclaimed that “there is no valid excuse for [Universal]’s noncompliance. They haven’t raised it in the pleadings.” This was sufficient to alert both the trial court and Universal that the Derouins had no intent to allow for the waiver issue to be tried by consent. Cf. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (“We cannot see the difference between objecting to the introduction of the evidence pertaining to an unpled claim at trial or by a motion in limine immediately prior to the trial. The effect is the same-calling the court’s attention to the fact that an unpled claim is not being tried by consent. . . .”).

Conclusion

Because the parties agree that compliance with 24 C.F.R. § 203.604 is a condition precedent to foreclosure, and the trial court erred in finding that the Derouins waived Universal’s compliance with the HUD regulations, we reverse and remand for entry of an order of involuntary dismissal.

Reversed and remanded with instructions.

LUCAS and ROTHSTEIN-YOUAKIM, JJ., Concur.

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

[1] These regulations, pertaining to FHA-backed loans to “high-risk borrowers,” ensure that the lender “would engage in `loss mitigation’ measures . . . with the defaulting borrower, before foreclosing.” U.S. ex rel. Advocates for Basic Legal Equality, Inc. v. U.S. Bank, N.A., 816 F.3d 428, 429 (6th Cir. 2016).

[2] The Derouins sufficiently pleaded their claims that Universal failed to comply with the face-to-face meeting requirement. See Fla. R. Civ. P. 1.120(c) (“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.” (emphasis added)); see also Bank of Am., N.A. v. Asbury, 165 So. 3d 808, 810 (Fla. 2d DCA 2015) (“A defendant, as the responding party, shoulders the responsibility of identifying a specific, unfulfilled condition precedent should it wish to deny that general averment.”).

[3] 24 C.F.R. § 203.604(c)(3) provides that a face-to-face meeting is not required if “[t]he mortgagor has clearly indicated that he will not cooperate in the interview.” Further, 24 C.F.R. §203.604(c)(5) excuses the face-to-face meeting when “[a] reasonable effort to arrange a meeting is unsuccessful.”

 

© 2010-18 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Advertise your business on StopForeclosureFraud.com

Archives