dinsfla | FORECLOSURE FRAUD | by DinSFLA - Part 2

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Judge Trims FCA Claims Over Foreclosure Services Billing

Judge Trims FCA Claims Over Foreclosure Services Billing

LAW 360-

A New York federal judge has pared down False Claims Act litigation alleging that Fannie Mae, Freddie Mac and the government were overcharged for foreclosure services, keeping foreclosure law firm Rosicki Rosicki & Associates PC in the case while setting free a host of other defendants, including some of the nation’s biggest banks.

In an 55-page opinion filed Monday, U.S. District Judge Jed Rakoff denied a bid by Rosicki and several affiliates to dismiss complaints against them by relator Peter D. Grubea and the government, which…

[LAW360]

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The Bank of NY Mellon  v St John | Hawaii ICA – No evidence BONY was in possession of the blank endorsed Note at time complaint was filed.

The Bank of NY Mellon v St John | Hawaii ICA – No evidence BONY was in possession of the blank endorsed Note at time complaint was filed.

Dubin Law Does it Again!!

035157745 by DinSFLA on Scribd

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Posted in STOP FORECLOSURE FRAUD1 Comment

US Bank Trust, N.A. v. Schranz | Hawaii ICA – Genuine issue of material of fact as to TMLF Hawaii LLLC received the original Note & BOA entitled to enforce it prior to the commencement of this action

US Bank Trust, N.A. v. Schranz | Hawaii ICA – Genuine issue of material of fact as to TMLF Hawaii LLLC received the original Note & BOA entitled to enforce it prior to the commencement of this action

H/T to Dubin Law Offices for this win!

035152614 by DinSFLA on Scribd

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HSBC Bank USA v. Bartolome | Hawaii ICA – Another Victory for Dubin Law Offices – We conclude that HSBC did not satisfy it’s burden to produce admissible evidence demonstrating that it was entitled to enforce the Note at time of this action was commenced. VACATED

HSBC Bank USA v. Bartolome | Hawaii ICA – Another Victory for Dubin Law Offices – We conclude that HSBC did not satisfy it’s burden to produce admissible evidence demonstrating that it was entitled to enforce the Note at time of this action was commenced. VACATED

035118463 by DinSFLA on Scribd

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Wells Fargo accused of misconduct again

Wells Fargo accused of misconduct again

CNN-

Wells Fargo is once again being accused of misconduct, this time because it allegedly used complex financial investments to take advantage of mom-and-pop investors.

The Securities and Exchange Commission said on Monday that between 2009 and 2013, Wells Fargo (WFC) reaped large fees by “improperly encouraging” brokerage clients to actively trade high-fee debt products that were intended to be held to maturity.

Wells Fargo Advisors, the bank’s brokerage division, agreed to pay a $4 million penalty over its handling of the products, known as market-linked investments. The bank must also return $930,377 of ill-gotten gains — plus $178,064 of interest.

[CNN]

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MCNAIR v MAXWELL & MORGAN PC | 9th Cir – defendants, including a law firm, violated the Fair Debt Collection Practices Act in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client

MCNAIR v MAXWELL & MORGAN PC | 9th Cir – defendants, including a law firm, violated the Fair Debt Collection Practices Act in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client

H/T Dubin Law Offices

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARTHA A. MCNAIR, an individual, Plaintiff-Appellant,

v.

MAXWELL & MORGAN PC, an Arizona professional corporation; CHARLES E. MAXWELL, husband; W. WILLIAM NIKOLAUS, husband; LISA MAXWELL, wife; LESLIE NIKOLAUS, wife,

Defendants-Appellees.

 

No. 15-17383

D.C. No. 2:14-cv-00869- DGC

OPINION

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted September 14, 2017 San Francisco, California

Filed June 25, 2018

Before: Jay S. Bybee* and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton,** District Judge.

Opinion by Judge Arterton

SUMMARY***

Fair Debt Collection Practices Act

The panel affirmed in part and reversed in part the district court’s grant of summary judgment in favor of the defendants on plaintiff’s claims that the defendants, including a law firm, violated the Fair Debt Collection Practices Act in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client.

The panel reversed the district court’s grant of summary judgment on plaintiff’s claim that in judicial proceedings, defendants misrepresented the amount of her debt and sought attorneys’ fees to which they were not entitled. Distinguishing Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir. 2017), the panel held that the defendants’ effort to

* Following the retirement of Judge Kozinski, Judge Bybee was randomly drawn to replace Judge Kozinski on the panel. Judge Bybee has read the briefs, reviewed the record, and watched a video recording of the oral argument held on September 14, 2017.
** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

collect homeowner association fees through judicial foreclosure constituted “debt collection” under the FDCPA. The panel held that defendants’ filing of a writ of special execution violated 15 U.S.C. § 1692e because defendants falsely represented the legal status of their request for attorneys’ fees. The panel remanded to the district court for a determination on damages.

In a concurrently-filed memorandum disposition, the panel affirmed the district court’s summary judgment in part.

COUNSEL

Douglas C. Wigley (argued) and Jonathan A. Dessaules, Dessaules Law Group, Phoenix, Arizona, for Plaintiff- Appellant.

Robert Travis Campbell (argued), Jeffrey A. Topor, and Tomio B. Narita, Simmonds & Narita LLP, San Francisco, California, for Defendants-Appellees.

OPINION

ARTERTON, District Judge:

Plaintiff Martha McNair appeals the district court’s grant of Defendant’s summary judgment motion in her action under the Fair Debt Collection Practices Act (“FDCPA” or the “Act”) and its denial of McNair’s motion for partial summary judgment. McNair’s complaint alleged that Defendants, including the law firm Maxwell & Morgan P.C., violated the FDCPA in their efforts to collect unpaid homeowner association assessments and other charges that she allegedly owed their client, the Neely Commons Community Association (“Association”). In the Memorandum Disposition filed together with this Opinion, we affirm the district court’s conclusion that all but two of Plaintiff’s FDCPA claims were untimely and the grant of summary judgment to Defendants on Plaintiff’s timely claim that Defendant violated the FDCPA by not responding expeditiously to Plaintiff’s requests for a statement of the amount she owed.

The district court also granted summary judgment to Defendants on Plaintiff’s sole other timely claim, which alleged that in judicial proceedings in 2013 and 2014, Defendants misrepresented the amount of Plaintiff’s debt and sought attorneys’ fees to which they were not entitled. With respect to this claim, we reverse the district court’s grant of summary judgment against Plaintiff and denial of Plaintiff’s motion for partial summary judgment, as explained herein.

Because most of the facts in this decade-long saga bear little or no relevance to the basis for this Opinion, we do not recite the entire history of the case, which was ably summarized in the district court’s decision. As relevant here, Plaintiff bought a home in Gilbert, Arizona in 2004 that was part of the Neely Commons Community Association. Plaintiff was required, under a declaration of covenants, conditions, and restrictions, to pay an annual assessment to the Association in monthly installments. When an owner fails to pay an installment, after the Association makes a written demand, the Association can record a notice of lien on the owner’s property. The Association has the right to collect the debt, including late fees, costs, and attorneys’ fees, by suing the owner or by bringing an action to foreclose the lien.

Defendants first notified Plaintiff in 2009 of her failure to pay a debt arising out of her homeowner association assessment. Defendants represented the Association in suing Plaintiff, after which the parties entered into a payment agreement. After Plaintiff defaulted on the agreement, Defendants revived the lawsuit and obtained a default judgment in 2010. As the district court noted, the record is silent as to what occurred in 2011. In 2012, Defendants represented the Association in suing Plaintiff again, and the parties agreed to a new payment plan and to execute a stipulated judgment against Plaintiff that recognized the Association’s right to collect the debt by selling Plaintiff’s home. Plaintiff failed to make all of the required monthly payments. In November 2013, Defendants requested via praecipe, and the Maricopa Superior Court granted, a writ of special execution for foreclosure on Plaintiff’s house. The property was sold for $75,000 at a foreclosure sale, and Defendants and their client received a total of $11,600.13 in satisfaction of the debt, including attorneys’ fees and costs.

The district court rejected Plaintiff’s claim that Defendants violated the FDCPA in judicial proceedings in 2013 and 2014 by misrepresenting the amount of Plaintiff’s debt and seeking attorneys’ fees to which they were not entitled, on two separate and apparently independent grounds. First, the district court held that Defendants were not engaged in “debt collection” as defined under the FDCPA. Second, the district court held that Defendants’ filing of the writ did not violate the FDCPA because the Maricopa County Superior Court later approved the attorneys’ fees claimed in the writ. We disagree with both grounds and therefore reverse.

Writing without the benefit of our subsequent published opinions, discussed infra, the district court concluded that Defendants were not engaged in “debt collection” as defined under the FDCPA because the writ was filed in order to foreclose on a lien. We now clarify that Defendants’ effort to collect homeowner association fees through judicial foreclosure constitutes “debt collection” under the Act.

Under the FDCPA, a “debt” is “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). The Act “defin[es] the term ‘debt collector’ to embrace anyone who ‘regularly collects or attempts to collect . . . debts owed or due . . . another.’” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017) (citing 15 U.S.C. § 1692a(6)) (alterations in original).

This statutory language notwithstanding, the district court concluded that “Defendants’ filing of the writ did not constitute a violation” of the Act, relying in part on Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002), for the proposition that foreclosure proceedings are not the collection of a debt for purposes of the Act.

The district court’s holding cannot be reconciled with the language of the FDCPA. The record makes clear that Defendants were in fact “debt collectors” collecting “debt.” The debt here accrued as a result of Plaintiff’s failure to pay homeowner association fees. Accordingly, Plaintiff’s “obligation . . . to pay money ar[ose] out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes[.]” 15 U.S.C. § 1692a(5) (defining “debt” under the Act); see also Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 989–90 (9th Cir. 2017) (concluding that attorneys’ collection letter regarding failure to pay homeowner’s assessment fee constituted debt collection under the FDCPA). And “attorneys who ‘regularly’ engage in consumer-debt-collection activity” are debt collectors under the Act, “even when that activity consists of litigation.” Heintz v. Jenkins, 514 U.S. 291, 299 (1995).

Nonetheless, Defendants contend that under our recent decision in Ho v. ReconTrust Co., NA, 858 F.3d 568 (9th Cir.), cert. denied, 138 S. Ct. 504 (2017), they “are not debt collectors when pursuing a foreclosure to enforce a security interest.” In Ho, we held that a trustee in a non-judicial foreclosure scheme that does not allow for deficiency judgments was not engaged in “debt collection” under the FDCPA. See id. at 572 (“[A]ctions taken to facilitate a non- judicial foreclosure . . . are not attempts to collect ‘debt’ as that term is defined by the FDCPA.”).

Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency judgments. In Ho, we noted that because “[t]he object of a non-judicial foreclosure is to retake and resell the security, not to collect money from the borrower[,]” and because “California law does not allow for a deficiency judgment following non-judicial foreclosure[,]” “the foreclosure extinguishes the entire debt even if it results in a recovery of less than the amount of the debt.” Id. at 571–72 (citing Cal. Civ. Code § 580d(a); Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1239 (10th Cir. 2013); Alaska Tr., LLC v. Ambridge, 372 P.3d 207, 228 (Alaska 2016) (Winfree, J., dissenting)). Accordingly, we held that “actions taken to facilitate a non-judicial foreclosure, such as sending the notice of default and notice of sale, are not attempts to collect ‘debt’ as that term is defined by the FDCPA.” Id. at 572. Here, by contrast, Defendants filed the Praecipe and Writ in order to collect a debt arising from Plaintiff’s failure to pay homeowner association fees as part of a judicial foreclosure scheme that in many cases allows for deficiency judgments. See Ariz. Rev. Stat. §§ 33-727(A), 33-729(B)– (C). Therefore, and for the reasons discussed above, this action constitutes debt collection under the FDCPA.1

As an independent basis for summary judgment, the district court also concluded that the Maricopa County Superior Court implicitly approved the attorneys’ fees claimed, first by issuing the writ and later by rejecting Plaintiff’s subsequent challenges to the amount of fees made in Plaintiff’s motion to cancel the sheriff’s sale and in Plaintiff’s motion for relief from judgment. In so doing, however, the district court failed to examine whether Defendants were legally entitled to claim the attorneys’ fees owed at the time Defendants made the writ application.

In Arizona, a party that has obtained a judgment “may have a writ of execution or other process issued for its enforcement.” Ariz. Rev. Stat. § 12-1551(A). And in Maricopa County, in order to request issuance of a post- judgment writ of special execution, a party must file a praecipe or an application in writing with the Clerk of the

1 The district court relied on Hulse, 195 F. Supp. 2d at 1204, as described supra, for the broad proposition that foreclosure proceedings are categorically not debt collection for purposes of the FDCPA. Ho subsequently endorsed Hulse for the more limited proposition that “‘foreclosing on a trust deed is an entirely different path’ than ‘collecting funds from a debtor.’” 858 F.3d at 572 (emphasis added) (quoting Hulse, 195 F. Supp. 2d at 1204). Hulse, like Ho, involved a non-judicial foreclosure, unlike here.

Superior Court. 17C Ariz. Rev. Stat. Super. Ct. Local Prac., Maricopa Cty., R. 3.5.

The Praecipe filed by Defendants on November 5, 2013 requested that the Clerk of the Maricopa County Superior Court issue the attached Writ of Special Execution against McNair. The Writ states that “attorney fees of $1,687.50, plus accruing attorney fees of $1,597.50 . . . are now at the date of this Writ due” under the stipulated judgment executed by both parties on June 27, 2012 and adopted by order of the Superior Court on July 12, 2012.

Under the FDCPA, debt collectors “may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. This includes “[t]he false representation of the character, amount, or legal status of any debt[.]” Id. § 1692e(2)(A). In Arizona, requests for post-judgment attorneys’ fees must be made in a motion to the court. See Ariz. R. Civ. P. 54(g). The record reflects that at the time the Writ was filed, no court had yet approved the quantification of the “accruing” attorneys’ fees claimed in the Writ.2 Accordingly, Defendants falsely represented the legal status of this debt, by implicitly claiming that the accruing attorneys’ fees of $1,597.50 already had been approved by a court. See Woliansky v. Miller, 704 P.2d 811, 813 (Ariz. Ct. App. 1985) (“The determination of the reasonable amount of attorney fees was peculiarly within the discretion of the trial court.”); Costa v. Maxwell & Morgan PC, No. CV-15- 00315-PHX-NVW, 2015 WL 3490115, at *6 (D. Ariz. June 3, 2015) (plaintiff stated claim that Maxwell & Morgan PC

2 The stipulated judgment provided only that Plaintiff owed “attorney fees . . . in an amount of $1,687.50, plus accruing attorney fees incurred hereafter[.]”

violated § 1692e(2) by “demanding attorneys’ fees not [yet] approved by a court”).

Because the district court granted summary judgment to Defendants on this claim, it did not assess what actual damages, if any, Plaintiff may have suffered as a result of this violation. While Plaintiff may not have suffered any actual damages in light of the Superior Court’s later approval of these attorneys’ fees, the district court should determine the statutory (and, if applicable, actual) damages to which Plaintiff is entitled. See 15 U.S.C. § 1692k. Accordingly, we remand to the district court for a determination on damages.

REVERSED AND REMANDED IN PART.

Each party shall bear their own costs.

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MERSCORP Holdings leverages tech expertise to provide eNote solution

MERSCORP Holdings leverages tech expertise to provide eNote solution

“Even small and mid-size lenders can take advantage of secure system and easy implementation”

Housing Wire-

The momentum surrounding the digital mortgage process continues to grow, with technology vendors developing new products and solutions at every turn. However, piecing together the various components into a seamless process that integrates well with every other solution is a challenge that is hindering wider adoption.

While some companies are new to the digital mortgage landscape, MERSCORP Holdings has operated the MERS eRegistry since 2004 and understands the complexity — and the potential — of digital implementation.

The company recently partnered with eOriginal to launch an eNote solution that expands their MERS eSuite, enabling the creation, execution, vaulting and management of the electronic promissory note, or eNote, to mortgage originators across the industry.

“Our members asked for this because they’ve been able to take resources that had been dedicated to building infrastructure for regulatory implementation and shift them to finding ways to improve the borrower experience and finding efficiencies that would decrease the cost of origination,” said Brendon Weiss, COO of MERSCORP Holdings. “Ultimately, MERS’ goal is to help in the digital transition and we’ll continue to work with any and all vendors that are looking to make sure this transition occurs.”

[HOUSING WIRE]

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CFPB’s structure is unconstitutional: judge

CFPB’s structure is unconstitutional: judge

Reuters-

A federal judge in New York ruled on Thursday that the structure of the U.S. Consumer Financial Protection Bureau is unconstitutional, forbidding the agency from suing a company that advances money to people awaiting settlement payouts.

The decision by U.S. District Judge Loretta Preska is at odds with a February ruling by the federal appeals court in Washington that upheld the CFPB’s structure.

Preska said the office of New York Attorney General Barbara Underwood, which joined the CFPB in suing New Jersey-based RD Legal Funding LLC, could continue pursuing the case.

[REUTERS]

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TFH 6/24/18 | Foreclosure Workshop #61: Capital One v. Peck and Gilliam v. Bank of America — Unraveling the Ancient Mysteries Behind Contemporary “Standing” Disputes in Foreclosure Courts

TFH 6/24/18 | Foreclosure Workshop #61: Capital One v. Peck and Gilliam v. Bank of America — Unraveling the Ancient Mysteries Behind Contemporary “Standing” Disputes in Foreclosure Courts

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

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

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

.

Sunday – JUNE 24, 2018

Foreclosure Workshop #61: Capital One v. Peck and Gilliam v. Bank of America — Unraveling the Ancient Mysteries Behind Contemporary “Standing” Disputes in Foreclosure Courts

.

 ———————

 

For centuries, one of the most important yet confusing concepts in American Law has been that of the “standing” of a party to pursue claims and defenses in court.

Without “standing,” claims and defenses will be dismissed in court, which makes “standing” one of the most powerful weapons in foreclosure litigation especially.

Foreclosure defense concepts by themselves have traditionally remained confusing enough, as our listeners know, varying from jurisdiction to jurisdiction and even within the same jurisdiction, and when recently combined with unsettled general standing disputes have led not only to inconsistent rulings between courts, but to inconsistent results even within the same jurisdiction.

One principal reason for all such combined confusion in foreclosure litigation is the patchwork manner in English and American Law concepts of “standing” have become intertwined within the concept of a court’s “jurisdiction,“ now itself splintered into numerous subconcepts, such as personal versus subject matter standing jurisdiction, the right to hear versus the right to decide, void versus voidable standing claims, legal versus equitable jurisdiction, and various controlling evidentiary concepts such as res judicata, burden of proof, and claim preclusion.

Successful foreclosure defense today requires advanced knowledge of newly emerging standing issues and how to deal with each of them.

Two recent judicial decisions decided just last week, one in New Jersey (Peck) and the other in California (Gilliam), illustrate some of the most important standing issues in foreclosure litigation today.

On this week’s show, John and I will examine these two separate Judicial decisions, both their strengthens and their weaknesses, as guides for future foreclosure defense likely applicable to each of our listeners’ cases.

In conclusion, we will suggest a simple written discovery request to use in order to lay the needed groundwork for defeating a pretender lender’s standing to foreclose in the typical securitized trust case.

Gary Dubin

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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Waters v. Wilmington Trust | FL 4DCA- the original note was not the same as the note attached to the complaint, the fact that the original plaintiff eventually filed the original note was not proof of its standing or possession of the original note at the time suit was commenced.

Waters v. Wilmington Trust | FL 4DCA- the original note was not the same as the note attached to the complaint, the fact that the original plaintiff eventually filed the original note was not proof of its standing or possession of the original note at the time suit was commenced.

 

FRANK WATERS, Appellant,
v.
WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity but as Trustee for ARLP SECURITIZATION TRUST SERIES 2015-1, as party plaintiff for U.S. BANK NATIONAL ASSOCIATION, as trustee for the benefit of the Holders of SerVertis Fund I Trust 2008-1 Certificates, Series 2008-1 acting by and through Green Tree Servicing LLC, in its capacity as Servicer, Appellee.

No. 4D17-2300.
District Court of Appeal of Florida, Fourth District.
June 13, 2018.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Senior Judge; L.T. Case No. 50-2011-CA-005018-XXXX-MB-AW.

Brittani S. Gross and Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellant.

Roy A. Diaz of SHD Legal Group, P.A., Fort Lauderdale, for appellee.

GROSS, J.

The issue in this case is whether Wilmington Trust, the substituted plaintiff, established that the original plaintiff had standing to bring this foreclosure action. Because there was insufficient evidence of the original plaintiff’s standing, we reverse the final judgment of foreclosure.

As evidence of its standing, the original plaintiff attached copies of the note, the mortgage, and an assignment of the mortgage to the complaint. The note attached to the complaint was not made payable to the plaintiff, and it contained no indorsements. The assignment unequivocally assigned only the mortgage — the note was not mentioned. More than a year later, the plaintiff filed the original note. Unlike the note attached to the complaint, the original note was indorsed in blank.

Wilmington Trust was substituted for the original plaintiff. The only witness to testify at the non-jury trial was an employee of the servicer. The witness acknowledged the indorsement on the note, but was not asked when the indorsement was placed or when the original plaintiff came into possession of the note. The witness was not asked when the loan was transferred to the original plaintiff, and testified that he assumed the assignment of the mortgage was also an assignment of the note. In the end, when asked if there were any documents in evidence establishing that the original plaintiff ever held the note, the witness said, “not before me.”

“[A] plaintiff in a foreclosure action must establish its standing both at the time the complaint was filed and when judgment is entered.” Spicer v. Ocwen Loan Servicing, LLC, 238 So. 3d 275, 278-79 (Fla. 4th DCA 2018). A substituted plaintiff is required to establish that the original plaintiff had standing when it filed the original complaint. Luiz v. Lynx Asset Servs., LLC, 198 So. 3d 1102, 1105 (Fla. 4th DCA 2016).

Here, Wilmington Trust failed to establish the original plaintiff had standing as either a holder or a nonholder in possession because there was no proof the original plaintiff had possession of the note when the action was commenced. Because the original note was not the same as the note attached to the complaint, the fact that the original plaintiff eventually filed the original note was not proof of its standing or possession of the original note at the time suit was commenced. See Friedle v. Bank of New York Mellon, 226 So. 3d 976, 978-79 (Fla. 4th DCA 2017).

Because Wilmington Trust failed to prove the original plaintiff’s standing when suit was filed, the trial court erred in entering the final judgment of foreclosure. We reverse and remand for vacation of the final judgment and entry of an involuntary dismissal of the complaint.

GERBER, C.J., and CONNER, J., concur.

Not final until disposition of timely filed motion for rehearing.

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Court Says Note and Mortgage Assignment Both Prerequisites to Foreclosure, but Makes an Exception

Court Says Note and Mortgage Assignment Both Prerequisites to Foreclosure, but Makes an Exception

New Jersey Law Journal-

A New Jersey appeals court has held in a published ruling that a party seeking to foreclose on a mortgage must have both the promissory note and a valid assignment of mortgage. But in a case where Capital One Bank brought a foreclosure action on a property when it possessed the mortgage but not the note, the appeals court said irregularities did not warrant reversal.

James Peck IV appealed the Aug. 26, 2016, judgment of foreclosure by Capital One, which was the loan servicer for Freddie Mac. Peck, an attorney who litigated the case pro se, maintained that only Freddie Mac had standing to foreclose. Peck represented himself until his death in July 2016, when counsel was retained.

According to the Appellate Division’s opinion Monday, Peck took out a $258,750 mortgage with Chevy Chase Bank in March 2005, and a few months later the bank sold the note to Freddie Mac but retained the mortgage. In 2009, Chevy Chase merged with Capital One, and in 2010 Peck defaulted on the mortgage.

[NEW JERSEY LAW JOURNAL]

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“ZOMBIE SECOND MORTGAGES” | Santa Clarita Realtor Saves Family’s Home From Seemingly Inevitable Foreclosure

“ZOMBIE SECOND MORTGAGES” | Santa Clarita Realtor Saves Family’s Home From Seemingly Inevitable Foreclosure

HTS-

Santa Clarita realtor Richard Szerman of Alta Realty Group talked to KHTS about how he and his team saved a family from losing their home after they were informed they owed over $200,000 — years after they thought the second mortgage was charged off.

Szerman and his team have saved over 1,000 houses across Santa Clarita from being foreclosed due to what he calls “zombie second mortgages.”

“We do foreclosure defense for free, and the objective here is to save the house,” Szerman said.

Szerman said many homeowners with second mortgages on their houses received letters during the real estate market crash around 2008 stating that their loan had been “charged off,” “discharged,” or a similar language.

[HOME TOWN STATION]

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Waters Introduces Bill to Improve Protections for Homeowners Facing Foreclosure

Waters Introduces Bill to Improve Protections for Homeowners Facing Foreclosure

Washington, DC, June 18, 2018

The bill comes on the heels of Ranking Member Waters’ bill to prevent foreclosures on FHA Borrowers.

A decade after the devastating foreclosure crisis, Congresswoman Maxine Waters (D-CA), Ranking Member of the House Committee on Financial Services, continues the fight to ensure hardworking Americans can remain in their homes by introducing H.R. 6102, the Homeowner Mortgage Servicing Fairness Act of 2018. This bill would protect homeowners against foreclosure and increase the Federal Housing Finance Agency’s (FHFA) oversight of mortgage servicers that conduct business with Fannie Mae and Freddie Mac. Fannie Mae and Freddie Mac own or guarantee nearly 60% of all mortgage loans.

“Mortgage servicers play a critical role in determining whether homeowners experiencing financial hardships will be forced out of their homes,” said Ranking Member Waters. “However, despite the lessons learned during the foreclosure crisis, we continue to uncover evidence of bad behavior by our nation’s mortgage servicers. Borrowers can’t choose their servicer so it’s especially important that Congress provide strong protections to prevent servicers from taking advantage of borrowers and to protect borrowers from foreclosure. This bill will implement common-sense reforms to ensure that servicers are giving borrowers every possible opportunity to avoid foreclosure.”

What is the role of mortgage loan servicers?

Mortgage servicers accept mortgage payments, manage borrower escrow accounts, work on loan modifications, and initiate foreclosure proceedings. After borrowers take out mortgage loans and settle into their homes, they continue to interact with their mortgage loan servicers. Despite the critical role that mortgage servicers play in the lives of homeowners across the nation, there are still significant lapses in mortgage servicing governance, which ultimately harm borrowers and the economy.

What does H.R. 6102 do to prevent harmful mortgage servicing practices?

  • Enhances FHFA oversight of servicers who conduct business with Fannie Mae and Freddie Mac;
  • Requires documentation of servicer behavior and FHFA evaluation of the services provided to borrowers;
  • Penalizes servicer failure to meet minimum standards established by the FHFA.

This legislation is supported by the National Consumer Law Center and the National Fair Housing Alliance.

To view the legislation text, click here.

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HAWAII ALERT: Safeguard Properties Management Inc. is breaking into occupied homes!

HAWAII ALERT: Safeguard Properties Management Inc. is breaking into occupied homes!

It has come to our attention that occupied homes are being broken into while homeowners are at work or away.

They are putting a notice nailed to doors saying since the property was vacant and they would be back to winterize (!) the home and change the locks. This is occurring in the very early stages of foreclosure.

https://hbe.ehawaii.gov/documents/business.html?fileNumber=99182C6&mobile=Y

CLASS ACTION BELOW:

https://www.google.com/search?q=safeguard+class+action&rlz=1C1CHZL_enUS709US709&oq=safeguard+class+action&aqs=chrome..69i57j0l2.9130j1j7&sourceid=chrome&ie=UTF-8

Bund v. Safeguard Props. LLC_ 2018 U.S. Dist. LEXIS 6217 by DinSFLA on Scribd

Back from 2013 –

Safeguard Properties Internal Documents Reveal Rampant Complaints Of Thefts, Break-Ins

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jarvis v federal national mortgage association | 9th Cir. – The statute of limitations to foreclosure ran from the last installment due… Quiet Title Claim was therefore appropriate. AFFIRMED.

jarvis v federal national mortgage association | 9th Cir. – The statute of limitations to foreclosure ran from the last installment due… Quiet Title Claim was therefore appropriate. AFFIRMED.

Jarvis-6-15-2018 by DinSFLA on Scribd

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People v. Credit Suisse Securities (USA) LLC | The Court of Appeals reversed, holding that because the Martin Act expands liability for fraudulent practices beyond that recognized under the common law

People v. Credit Suisse Securities (USA) LLC | The Court of Appeals reversed, holding that because the Martin Act expands liability for fraudulent practices beyond that recognized under the common law

People v. Credit Suisse Securities (USA) LLC
Court: New York Court of Appeals

Citation: 2018 NY Slip Op 04272

Opinion Date: June 12, 2018

Judge: DiFiore

Areas of Law: Securities Law

Claims brought under the Martin Act, N.Y. Gen. Bus. Law 23-A, 352 et seq., are governed by the three-year statute of limitations in N.Y. C.P.L.R. 214(2) rather than the six-year limitations period in either N.Y. C.P.L.R. 213(1) or 213(8). The Attorney General commenced this action asserting that the issuance of residential mortgage-backed securities by Defendants violated the Martin Act. Defendants moved to dismiss the complaint, arguing that the action was time-barred because the operative statute of limitations was the three-year period found in N.Y. C.P.L.R. 214(2), which covers actions to recover upon a liability, penalty or forfeiture created or imposed by statute. Supreme Court denied the motion to dismiss, concluding that the six-year limitations period in N.Y. C.P.L.R. 213 applied because Plaintiff sought to impose liability on Defendants based on the common-law tort of investor fraud. The Appellate Division affirmed. The Court of Appeals reversed, holding that because the Martin Act expands liability for fraudulent practices beyond that recognized under the common law, section 214(2) controls.
Read Opinion
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U.S. Bank National Association v. Kotak | Hawaii ICA – We conclude that U.S. Bank did not satisfy it’s burden to produce admissible evidence demonstrating that it was entitled to enforce the Note at time of this action was commenced. VACATED

U.S. Bank National Association v. Kotak | Hawaii ICA – We conclude that U.S. Bank did not satisfy it’s burden to produce admissible evidence demonstrating that it was entitled to enforce the Note at time of this action was commenced. VACATED

Dubin Law Offices has been whipping butt!!

035045982 by DinSFLA on Scribd

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TFH 6/17/18 |  The Rise and Fall of Securitized Trusts: Eleven Future Strategies To Dismantle Them in Their Retreat

TFH 6/17/18 | The Rise and Fall of Securitized Trusts: Eleven Future Strategies To Dismantle Them in Their Retreat

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 – JUNE 17, 2018

The Rise and Fall of Securitized Trusts: Eleven Future Strategies To Dismantle Them in Their Retreat

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At first, securitized trusts received obedient kowtowing from the American Judiciary, unwittingly deceived by, if nothing else, their long impressive titles including in their names the names of otherwise past respected financial institutions supposedly acting as their trustees.

And when securitized trusts, starting with the mortgage crisis of 2008, began their unending wave of foreclosures, they did so exclusively as mortgagees, since state foreclosure laws have always been written to exclusively authorize foreclosures on mortgages only and not in favor of the holders of promissory notes.

While mortgagors, for instance, in foreclosure cases continued to argue in court “show me the note,” attorneys for the securitized trusts continued to refuse to discuss the whereabouts or the ownership of promissory notes.

But, thanks initially to the groundbreaking lawyering of a few Florida attorneys taking the oral depositions of robo-signers of mortgage assignments, the foreclosure strategy of securitized trusts came under increased scrutiny and gradually inconsistently switched to “here is the note,” downplaying any need to discuss the ownership of mortgages, some even recently arguing in court that even if the chain of the ownership of a mortgage was broken and uncertain, it supposedly does not any longer matter as “the mortgage follows the note.”

Recently, however, that strategy has also been failing, as the ownership and possession of the note and the right to foreclosure based on ownership of the note have come under increased scrutiny in the majority of State Court, mortgagors challenging the standing of securitized trusts.

In Hawaii, for instance, my law firm has won appellate reversals in 11 “standing” appeals in the past 9 weeks, pretender lenders being unable to prove the right to foreclosure at the time the foreclosure complaint was filed, and appellate courts in other jurisdictions such as California and Florida have similarly been reversing dismissals and summary judgments due to unproven standing to foreclose.

On today’s show as time permits John and I examine some of those appellate cases, suggest that the reign of securitized trusts in American Courts is ending, and further discuss eleven future strategies for dismantling them in their retreat, including:

1. Suing Fannie Mae and Freddie Mac for fraud on our courts.

2. Suing securitized trusts for securities law violations.

3. Replacing federally backed mortgage funding with private sector Homeowners Adjustable Trusts (HAT).

4. Suing for reparations for falsely foreclosed homeowners.

5. Reorganizing State recording offices to staff them with attorneys by passage of the Mortgage Integrity Act (MIA).

6. Reorganizing State Judiciaries to create emergency response teams to deal with mortgage and deed of trust foreclosures.

7. Securing media attention to the realities and abuses of securitized trusts and their hidden underground banking system.

8. Encouraging political leadership to confront foreclosures and related homeowner issues.

9. Organizing homeowners as a united force helping each other in the Homeowners SuperPAC (HPac).

10. Stimulating support from allied interest groups, such as realtors, State rights advocates, small banks.

11. Challenging The Rule Ritual Litigation slogans of securitized trust attorneys, such as “the mortgage follows the note” and the “free house” hobgoblin.

Gary Dubin

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

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3:00 PM HAWAII 
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The Foreclosure Hour 12

 

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Mick Mulvaney: Changing Corrupt Financial Protection Bureau’s (CFPB) name sends a message

Mick Mulvaney: Changing Corrupt Financial Protection Bureau’s (CFPB) name sends a message

Housing Wire-

The Consumer Financial Protection Bureau, or should we say Bureau of Consumer Financial Protection, took the next step in its name change by putting up bcfp signage at the agency’s headquarters.

CFPB Acting Director Mick Mulvaney has been seeking to change the name for some time now, changing what he called the bureau and changing its name in the official documents sent out by his office.

At the end of March, the bureau released its new seal, adopting its first official seal. The seal shows an eagle with its wings raised across a blue background. But the top of the seal says, “Bureau of Consumer Financial Protection.”

[HOUSING WIRE]

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Mulvaney may cut off public access to CFPB complaints. Ex-AG says not so fast

Mulvaney may cut off public access to CFPB complaints. Ex-AG says not so fast

American Banker-

Acting Consumer Financial Protection Bureau Director Mick Mulvaney hasn’t said yet whether he will keep public consumer complaints about banks, credit unions and other financial firms, but a former Ohio attorney general is gearing up just in case.

Marc Dann, now a lawyer in private practice who represents mortgage borrowers in foreclosure, said he plans to file monthly Freedom of Information Act requests seeking access to consumer complaints filed with the agency, and post all of the information he receives on his law firm’s website.

Moreover, if Mulvaney revokes the public database or refuses to give him the underlying data, Dann said he will sue.

“If Mulvaney doesn’t give us the information voluntarily, we’re prepared to go to court and force him to hand it over,” Dann said Wednesday in an interview with American Banker. “We’re going to do everything in our power to blow up his plan to keep consumers and regulators in the dark.”

[AMERICAN BANKER]

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10 years after the housing crisis, thousands of zombie homes are still stuck in foreclosure limbo

10 years after the housing crisis, thousands of zombie homes are still stuck in foreclosure limbo

Market Place-

A lot of us still feel the effects of the financial crisis. But there are places in the country where you can actually still see them — places where houses got stuck in foreclosure limbo, were  abandoned and are still sitting empty years later. People call them zombie homes. And while there are many fewer zombies than there used to be, there are still more than 14,000 of these homes. They’re clustered mainly in cities and towns where there are a lot of protections for homeowners, so foreclosures take longer. We went to Long Island, New York, which has the biggest zombie population in the country, to check in on the unwinding.

This story is part of Divided Decade, a yearlong series examining how the financial crisis changed America.

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Bureau of Consumer Financial Protection Settles With Security Group, Inc.

Bureau of Consumer Financial Protection Settles With Security Group, Inc.

Company Engaged In Improper Debt Collection and Credit Furnishing Practices

Today the Bureau of Consumer Financial Protection (Bureau) announced a settlement with Security Group Inc., a South Carolina corporation, and its subsidiaries, Security Finance Corporation of Spartanburg and Professional Financial Services Corp.

As described in the consent order, the Bureau found that the Security Group entities violated the Consumer Financial Protection Act by making improper in-person and telephonic collection attempts on consumer installment loans and retail sales installment contracts. The Bureau found that these improper attempts included physically preventing consumers from leaving their homes and visiting and calling consumers’ places of work while knowing that those contacts could endanger the consumers’ employment. The Bureau also found that the Security Group entities violated the Fair Credit Reporting Act by regularly furnishing inaccurate and incomplete information about consumers to credit reporting agencies.

Under the terms of the consent order, Security Group and its subsidiaries are barred from certain collection practices, and must correct certain inaccurate information about consumers they furnished to credit reporting agencies, and pay a $5 million civil money penalty.

The consent order is available athttps://files.consumerfinance.gov/f/documents/bcfp_security-group-inc_consent-order_2018-06.pdf 

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