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EXPLOSIVE DEPOSTION!!!! BUSTED!! DAVID J. STERN “MILL” KNEW THIS ALL ALONG…THIS FORECLOSURE FRAUD!!!

EXPLOSIVE DEPOSTION!!!! BUSTED!! DAVID J. STERN “MILL” KNEW THIS ALL ALONG…THIS FORECLOSURE FRAUD!!!

FORMER EMPLOYEE WHISTLE BLOWER!!!

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Via: 4ClosureFraud

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HEY JUDGE COX, THIS IS WHAT YOUR MOTION TO QUASH IS PROTECTING!

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MY GOD!

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WHERE ARE THE F***ING FEDERAL AGENTS!!!

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“I personally did not do it because I refused to do it.”

“I wasn’t going to falsify a military document.”

“I was told that that’s fine, somebody else on your team will do it.”

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This just in and it is unbelievable!

We are neck deep in issues today so I do not have time to go through and highlight everything, and there is a lot, but here are some snips…

TAKE THE TIME TO READ THIS IN ITS ENTIRETY

THIS SHOULD BE THE BOMBSHELL THAT STOPS IT ALL IN FLORIDA

MORE TO FOLLOW ON THIS

1                             STATE OF FLORIDA
OFFICE OF THE ATTORNEY GENERAL
2                             DEPARTMENT OF LEGAL AFFAIRS

3                             AG # L10-3-1145

4

5   IN RE:

6   INVESTIGATION OF LAW OFFICES
OF DAVID J. STERN, P.A.
7

8   ____________________________/

9

10

11

12               DEPOSITION OF TAMMIE LOU KAPUSTA

13

14

15

16                    12:11 p.m. – 1:58 p.m.
September 22, 2010
17                Office of the Attorney General
110 Southeast 6th Street, 10th Floor
18                Fort Lauderdale, Florida 33301

1 P R O C E E D I N G S
2 – – –
3 Deposition taken before Kalandra Smith, Court
4 Reporter and Notary Public in and for the State of
5 Florida at Large, in the above cause.
6 – – –
7 THERE UPON:
8 TAMMIE LOU KAPUSTA
9 having been first duly sworn or affirmed, was examined
10 and testified as follows:

1 Q Let’s go to the assignments of mortgage. They
2 were prepared in-house?
3 A Yeah.
4 Q You’re smiling. You want to tell me about
5 them?
6 A Assignments were done sometimes after the
7 final judgement was entered.
8 Q Do you know why that is?
9 A Because that’s what we were directed to do

19 Q Can you tell me the execution of the
20 assignments, how it worked?
21 A Assignments were prepared again from the
22 casesum. All of our stuff comes from the casesum. They
23 would be stamped and signed by a notary or not. Per
24 floor we had a designated spot to place them and Cheryl
25 would come once a day and sign them.
22
1 Q Sign them as what?
2 A As –
3 Q For the bank?
4 A Correct.
5 Q Or for MERS or whoever it was for?
6 A Correct.
7 Q Would these notaries be there watching her as
8 she signed?
9 A No.
10 Q She would just sit there and sign stacks of
11 them?
12 A Correct. As far as notaries go in the firm I
13 don’t think any notary actually used their own notary
14 stamp. The team used them.
15 Q There were just stamps around?
16 A Yes.
17 Q And you actually saw that?
18 A I was part of that.
19 Q You did it? Are you a notary?
20 A No, I’m not.
21 Q Did you sign as a witness?
22 A I did not. I signed as a witness on one
23 document and after that I decided that I didn’t want to
24 put my name as a witness anymore.
25 Q Tell me about the stamps. You stamped them?
23
1 A Yeah, I had stamps. Each team had a notary on
2 them or notaries that I was aware of. Whether they were
3 or weren’t wasn’t –
4 Q You had stamps?
5 A Correct. We would stamp them and they would
6 get signed.
7 Q Stamp them in blanks?
8 A Yes.
9 Q Who would sign them?
10 A Other people on the team that could sign the
11 signature of the person or just a check on there or
12 whatever.
13 Q Was that common practice?
14 A Yes.
15 Q Was that standard practice?
16 A Pretty much.
17 Q What about the witnesses?
18 A Those would be signed by juniors who were –
19 Q Standing there?
20 A Here, sign this. It has to go to Cheryl, sign
21 it. Then it would go and sit at the desk where Cheryl
22 would sign everything.
23 Q Out of view of the notary and out of view of
24 the witnesses?
25 A Correct.
24
1 Q Do you know who implemented this procedure?
2 A Cheryl.
3 Q Cheryl did?
4 A Um-hum.
5 Q Did anybody else sign with the firm for the
6 banks?
7 A Yes.
8 Q Who was that?
9 A There were people that were responsible for
10 signing Cheryl’s name. Cheryl, Tammie Sweat, and Beth
11 Cerni. Those were the only three people that could sign
12 Cheryl’s name. If you ever look at assignments you’ll
13 see that they are not all the same.
14 MS. EDWARDS: What are the names again?
15 Cheryl, Tammie?
16 THE WITNESS: Tammie Sweat and Beth Cerni.
17 MS. EDWARDS: Could you spell that.
18 MS. CLARKSON: C-E-R-N-I.
19 BY MS. CLARKSON:
20 Q Did they practice Cheryl’s signature?
21 A I would assume so.
22 Q Did you ever see them?
23 A Not practicing but I’ve seen them sign it.
24 Q Did you see somebody sign Cheryl’s name?
25 A Yes.
25
1 Q That wasn’t Cheryl?
2 A Yes. All the time.
3 Q Did Cheryl know about this?
4 A Yes.
5 Q Was it at her direction?
6 A Yes.

16 Q Did anyone quit as far as you know due to the
17 practices?
18 A I’m sure but they wouldn’t come right out and
19 say I quit because of the practices. I know that people
20 had left because they were uncomfortable with the things
21 that they were being asked to do, as most of us were.
22 When it got really sticky there were a lot of us that
23 weren’t here.
24 Q What does really sticky mean?
25 A They wanted us to start changing the documents
33
1 and stuff and doing stuff that we weren’t supposed to be
2 doing as far as service.
3 Q What documents did they want you to change?
4 A Manpower documents. A lot of judges started
5 requiring, because of the Jane and John Doe issues,
6 required that you have a military search for all the
7 defendants. If you named a Jane and John Doe as an NKA
8 you had to pull a military search on them. Unless you
9 have somebody’s social security number technically you
10 can’t pull a military search supposedly.
11 The program that we used for the program that
12 we used, you could put in the main defendant’s social
13 security and John or Jane Doe’s name and it would give
14 us a military search saying that they were in the
15 military.
16 Q You would get their social security number
17 because the bank documents contained it?
18 A Correct. The lenders, the referrals had the
19 socials.
20 Q Did you put the social in on everybody to find
21 out their address for service?
22 A Not everybody. I personally did not do it
23 because I refused to do it. I wasn’t going to falsify a
24 military document. I was told that that’s fine,
25 somebody else on your team will do it.
1 Q What do you mean falsify a military document?
2 A Well, I’m using the main defendant’s social
3 security number on somebody else’s name, not his name.
4 John Doe and the main defendant was James, I was taking
5 James’ social security number and putting John Doe’s
6 name in there. I wasn’t but that’s what the practice
7 was. The judges started saying we’re not going to
8 consider service completed until –
9 Q There’s a miliary search?
10 A Correct.
11 Q So why wouldn’t they use the right social
12 security number for the right person?
13 A Because you don’t have a social for an NKA or
14 unknown tenant. They wouldn’t enter a final judgement
15 unless the military doc was there.
16 Q So you just used anybody’s?
17 A Correct.

9 A So what we had to do from that point, again
10 the affidavits were still split in two pages, at that
11 point we were supposed to be sending them back to the
12 banks to be signed now. The problem being that a lot of
13 times we wouldn’t get them back or executed in time for
14 the hearings. So we had what they called signature
15 pages that Tammie Sweat or someone else would have in
16 their possession. If we couldn’t get it back from the
17 bank executed in time we would just take a signature
18 page and put it on the affidavit.
19 Q What was on the signature page?
20 A The signature and notary from the bank.
21 Q Were these documents photocopied or were they
22 original documents?
23 A Some were photocopied.
24 Q How would you get that many from a bank
25 original? The bank supplied them to you.
42
1 A Well, what would happen would be like if I had
2 file A and that one didn’t go to hearing because there
3 was something wrong with it and file B was going to
4 hearing but it was the same bank, I would take the
5 signature page from A and give it to B.
6 Q Oh give it to another file?
7 A And just re-execute this file.
8 Q Okay. That was common practice?
9 A Yes, after Cheryl couldn’t sign.
10 Q Did Cheryl know?
11 A Yes.
12 Q Cheryl knew about all the practices because
13 she is the one who ran the office?
14 A She was the one who implemented them.
15 Q Were there any other activities or practices
16 over at David Stern’s firm that made you feel
17 uncomfortable or that you were unwilling to do?
18 A I don’t know how to answer that question.
19 It’s a loaded one.
20 Q Take your time.
21 A Yeah. Some of the things that were done there
22 just were not on the up and up.
23 Q Explain to me in as much detail as you can
24 what those things were.
25 A I don’t even know where to start with it.

Now that’s some BULLSHIT!

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MUCH MORE IN THE DEPO BELOW…

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Full-Deposition-of-Tammie-Lou-Kapusta-Law-Office-of-David-J-Stern

[ipaper docId=38901226 access_key=key-1qyc5k5u2jgdkg86i66p height=600 width=600 /]

Image credit: PI Bill Warner


© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in assignment of mortgage, aurora loan servicing, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, Law Offices Of David J. Stern P.A., MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUD, Tammie Lou Kapusta6 Comments

Hagens Berman Files Class-Action Suit Against Aurora Loan Services LLC

Hagens Berman Files Class-Action Suit Against Aurora Loan Services LLC


SAN JOSE, Calif., Aug. 20 /PRNewswire/ — A group of homeowners today filed a class-action lawsuit against Aurora Loan Services LLC, claiming the mortgage company duped them into paying tens of thousands of dollars each to have troubled mortgages reviewed by the company with promises of loan modifications, only to have their property foreclosed with little or no notice.

The suit states that Aurora reaped more than $100 million in what the court documents call “illicit profits” from the alleged scheme.

Filed in the U.S. District Court for the Northern District of California in San Jose, the suit seeks to represent homeowners who paid the Littleton, Colo.-based company money in exchange for the company’s help in ‘curing’ delinquent home mortgages.

In exchange for between three and six large monthly payments, Aurora said it would halt the foreclosure process and work with homeowners to restructure, modify or resell the loan, allowing homeowners a chance to keep their homes, the suit states.

“We intend to prove that Aurora’s workout plan was nothing more than a cynical ploy to take advantage of homeowners desperate to hold on to their homes,” said Steve Berman, managing partner of Seattle-based Hagens Berman Sobol Shapiro LLP and the attorney representing the proposed class.

The suit contends that, after a period of months, Aurora foreclosed on the homes without giving the borrowers any notice that their requests for loan modification were denied and without allowing borrowers access to any method for ending their loan deficiency, despite the provisions of the workout agreements.

The suit states that the workout agreements provided for four methods for ending loan deficiency: bringing the loan current, refinancing with another lender, modification of the terms of the loan at the discretion of Aurora and another workout option at the company’s discretion.

“The past three years have been tough enough on homeowners without them having to worry about being preyed upon by unscrupulous loan services,” Berman said.

The complaint outlines the stories of two married couples who engaged Aurora in an attempt to forestall foreclosure. The first couple, from San Jose, refinanced their home with a mortgage company in early 2006. Two years later, the couple suffered economic setbacks in the form of poorly performing investments and a temporary loss of work. In late 2009, the couple contacted Aurora and signed one of the so-called workout agreements.

Over the next several months, the couple paid a total of $33,500 in return for Aurora’s promise to work on modifying the terms of the loan, among other possible outcomes. In May 2010, the family was served with a Notice to Vacate, indicating their home had been sold in foreclosure. The family had received no prior notice that the foreclosure process had been completed. In addition, Aurora did not notify the family that it had been denied a loan modification, according to the complaint.

In another instance, a second San Jose couple refinanced their home in mid-2007. Two years later, the couple suffered financial hardship as a result of an illness and the death of a parent, which led to increased expenses and loss of income. In early 2009, the couple contacted Aurora and signed one of the company’s workout agreements, the complaint alleges.

Over the next several months, the family paid a total of $23,700 in return for Aurora’s promise to work on modifying the terms of their loan. Like the first couple, the family was served with a Notice to Vacate in late June 2010, signaling their home had been sold in foreclosure. The family was not told prior to receiving the notice that the foreclosure process on their home had begun, according to the complaint.

“We’ve heard of cases like this a lot over the last few years,” Berman said. “We’d like to bring struggling homeowners some sense of relief.”

The complaint, which can be found at www.hbsslaw.com/cases-and-investigations/aurora, accuses Aurora of negligent misrepresentation, unjust enrichment, breach of the implied covenant of good faith and fair dealing, violation of the California Unfair Business Practices Act and other violations of California law.

Hagens Berman believes the workout agreements were fraudulent in nature and seeks to have the agreements declared void. The firm also seeks an injunction against Aurora forbidding the company from continued offering of its deceptive workout agreements, restitution to be determined at trial, damages to be determined at trial and trial and attorneys’ fees.

If you entered into a so-called workout agreement with Aurora, you are encouraged to join this case.

About Hagens Berman

Seattle-based Hagens Berman Sobol Shapiro LLP is a consumer-rights class-action law firm with offices in San Francisco, Chicago, Boston, Los Angeles, Phoenix and Washington, D.C. Founded in 1993, HBSS continues to successfully fight for consumer rights in large, complex litigation. More about the law firm and its successes can be found at www.hbsslaw.com.

Contact: Mark Firmani, Firmani + Associates Inc., 206.443.9357 or mark@firmani.com

SOURCE Hagens Berman Sobol Shapiro LLP

Back to top RELATED LINKS
http://www.hbsslaw.com

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in aurora loan servicing, class action, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosures, investigation, lawsuit, mortgage modification, STOP FORECLOSURE FRAUD1 Comment

Defendants’ Motion for Summary Judgment on the Entirety of Plaintiff’s Complaint

Defendants’ Motion for Summary Judgment on the Entirety of Plaintiff’s Complaint

Via: Kenneth Eric Trent, Attorney at Law Fort Lauderdale, FL

This is the follow up to the latest Depositions posted on SFF taken from The Law Offices of David J. Sterns’ employees Cheryl Samons and Shannon Smith.

[ipaper docId=34550572 access_key=key-2cbgnrr6653palfl8a4w height=600 width=600 /]

RELATED STORIES:

Full Deposition of David J. Stern’s Notary | Para Legal Shannon Smith

STERN’S CHERYL SAMONS| SHANNON SMITH Assignment Of Mortgage| NOTARY FRAUD!

Take Two: *New* Full Deposition of Law Office of David J. Stern’s Cheryl Samons

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in aurora loan servicing, citimortgage, conflict of interest, CONTROL FRAUD, corruption, dismissed, djsp enterprises, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, Law Offices Of David J. Stern P.A., MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Notary, notary fraud, robo signers, settlement, STOP FORECLOSURE FRAUD1 Comment

NEVADA is on a ROLL! ALOUA v. AURORA LOAN SERVICES, LLC, Dist. Court, D. Nevada 2010

NEVADA is on a ROLL! ALOUA v. AURORA LOAN SERVICES, LLC, Dist. Court, D. Nevada 2010

PIA MARIE T. CORDERO ALOUA, Plaintiff,
v.
AURORA LOAN SERVICES, LLC; LEHMAN BROTHERS BANK, FSB; QUALITY LOAN SERVICE CORPORATION; Does I-X, inclusive, Defendants.

Case No. 2:09-CV-00207-KJD-RJJ.

United States District Court, D. Nevada.

June 23, 2010.

ORDER

KENT J. DAWSON, District Judge. Currently before the Court is Defendants Aurora Loan Services, LLC, and Lehman Brothers Bank, FSB’s Motion to Dismiss (#15).[1] Plaintiff Pia Marie T. Cordero Aloua filed a Response and Opposition (#18) to Defendants’ Motion on October 5, 2009, to which Defendants filed a Reply (#19) on October 20, 2009.

I. Background

Plaintiff financed the real property located at 116 Peachy Court in Las Vegas, Nevada (“subject property”) on or about the 5th day of July, 2007. At that time, Plaintiff executed an adjustable rate loan (“first loan”) in the principal amount of $768,987.00 and a fixed-rate balloon loan (“second loan”) in the principal amount of $144,185.00. Lehman Brothers, which changed its name to Aurora Bank on April 24, 2009, was the original lender, and Aurora Loan Services (“ALS”) was appointed as the loan servicer on August 16, 2007. Plaintiff’s first loan, which was placed in the sub-prime category, was financed based upon a yearly adjustable interest rate of 9.375% and was to be paid to Lehman Brothers by monthly payments beginning in September 2007. Plaintiff avers that the sub-prime designation of her loan, which led to higher fees and interest, was in error because Plaintiff had verifiable income and a credit score sufficient to qualify for the traditional prime rate. Defendants aver that Plaintiff defaulted on her loans in December 2007, leading to foreclosure proceedings which were ultimately completed on July 14, 2008 through Quality Loan Service Corporation (“QLS”), the appointed substitute trustee. ALS claims to have acquired title to the subject property through said foreclosure proceedings. Plaintiff avers, however, that she did not default on her loans and that the foreclosure sale was carried out without serving the required notices and without giving Plaintiff the appropriate opportunity to avert the sale. On January 7, 2009, Plaintiff commenced this action in the District Court for Clark County, Nevada. The action was removed to this Court on February 2, 2009 on the basis of federal question and diversity jurisdiction. (See #1.) On September 2, 2009, Plaintiff filed an Amended Complaint against all Defendants, alleging the following causes of action: (1) intentional misrepresentation; (2) negligence per se under the federal Real Estate Settlement Procedures Act (“RESPA”) and the federal Truth in Lending Act (“TILA”); (3) negligence; (4) rescission under TILA; (5) wrongful foreclosure; and (6) quiet title. On September 21, 2009, Defendants filed a Motion to Dismiss the First Amended Complaint (#15). For the reasons discussed below, the Court grants the Motion to Dismiss in part and denies it in part.

II. Discussion

A. Motion to Dismiss

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the Court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949. Second, the Court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

III. Analysis

A. Intentional Misrepresentation

Plaintiff alleges Defendants knowingly made false misrepresentations to Plaintiff, upon which Plaintiff justifiably relied to her detriment. To state a claim for fraudulent misrepresentation in Nevada, a plaintiff must allege that (1) defendant made a false representation; (2) defendant knew or believed the representation to be false; (3) defendant intended to induce plaintiff to rely on the misrepresentation; and (4) plaintiff suffered damages as a result of his reliance. Bartmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998). Misrepresentation is a form of fraud where a false representation is relied on in fact. See Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 871 (Nev. 1980). Fraud has a stricter pleading standard under Rule 9, which requires a party to “state with particularity the circumstances constituting fraud.” FED. R. CIV. P. 9(b). Pleading fraud with particularity requires “an account of the time, place, and specific content of the false representations, as well as the identities of the parties of the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007); see also Morris v. Bank of Nev., 886 P.2d 454, 456 n.1 (Nev. 1994). The Ninth Circuit has held, however, that the stricter pleading requirements of Rule 9(b) “may be relaxed with respect to matters within the opposing party’s knowledge,” reasoning that “[i]n such situations, plaintiffs can not (sic) be expected to have personal knowledge of the relevant facts.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (citing Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). Even under this relaxed version of Rule 9(b), however, “a plaintiff who makes allegations on information and belief must state the factual basis for the belief.” Id. Here, Plaintiff alleges that Defendants knowingly concealed the true nature of her credit score and defrauded her by placing her loan in the sub-prime category to charge higher commissions. Plaintiff also alleges, among other things, that Defendants misrepresented the fees charged and paid in association with her loan, as well as her eligibility to participate in a loan modification program. Taking these assertions as true, the Court finds Plaintiff has sufficiently stated a claim for fraud: Plaintiff alleges that Defendants intentionally misrepresented information to her, that she relied on these representations, and that she was damaged as a result.

B. Negligence per se

To state a claim for negligence per se, a plaintiff must allege that (1) he or she belongs to a class of persons that a statute was intended to protect; (2) defendant violated the relevant statute; (3) plaintiff’s injuries are the type against which the statute was intended to protect; (4) the violation was the legal cause of plaintiff’s injury; and (5) plaintiff suffered damages. See Anderson v. Baltrusaitus, 944 P.2d 797, 799 (Nev. 1997). Whether a particular statute establishes a standard of care in a negligence action is a question of law. Vega v. E. Courtyard Assocs., 24 P.3d 219, 221 (Nev. 2001). Plaintiff claims Defendants violated provisions of TILA, 15 U.S.C. § 1601, et seq., and RESPA, 12 U.S.C. § 2601, et seq., dealing with a lender’s disclosure duties. Defendants argue that the TILA claim is time barred because the statute of limitations has run. Section 1640(e) of TILA requires that claims be brought within one year of the date of the loan transaction. Interpreting this provision, the Ninth Circuit has held that while as a general rule the limitations period runs from the date the transaction is consummated, the doctrine of equitable tolling may, when appropriate, toll the limitations period until the borrower has had a reasonable opportunity to discover the facts giving rise to a TILA claim. King v. California, 784 F.2d 910, 915 (9th Cir. 1986). The Ninth Circuit has also held that the equitable tolling analysis is a factual one: the finder of fact must determine whether equitable tolling will prevent unjust results or maintain the integrity of the relevant statute. Id. Because these factual questions are yet to be resolved, the Court is unable to say at this stage in the litigation whether the statute of limitations has run. Therefore, Defendants’ Motion to Dismiss Plaintiff’s TILA claim on statute of limitations grounds is denied. Moreover, after reviewing the Complaint, the Court finds Plaintiff has adequately stated a TILA claim against Defendants. Plaintiff alleges Defendants (1) failed to disclose the identity of persons and entities who share the service fees and other charges for her loans; (2) failed to disclose the percentage of the loan amount paid to the nominal lender; and (3) failed to disclose relevant credit terms to enable Plaintiff to compare market rates and prevent unfair credit practices. (Dkt. #14, Compl. ¶ 26-28.) Taking these assertions as true, Plaintiff has stated a viable claim for relief under TILA. Plaintiff has failed, however, to sufficiently state a claim for negligence per se under RESPA. 12 U.S.C. § 2601, et seq. As a general rule, RESPA does not create an express or implied private right of action. Collins v. FMHA-USDA, 105 F.3d 1366, 1367-68 (11th Cir. 1997); Bamba v. Resource Bank, 568 F. Supp. 2d 32, 34-35 (D.D.C. 2008); Morrison v. Brookstone, 415 F. Supp. 2d 801, 806 (S.D. Ohio 2005); McWhorter v. Ford Consumer Fin. Co., 33 F. Supp. 2d 1059, 1064 (N.D. Ga. 1997). A limited exception to this rule exists: a private right of action exists under RESPA when a specific statutory provision mentions such a right. See Bloom v. Martin, 865 F. Supp. 1377, 1384-85 (N.D. Cal. 1994). Although Plaintiff alleges Defendants violated several provisions of RESPA, the only section she references with any specificity is § 2605. Accordingly, because this section of the statute does not provide a private right of action, Plaintiff’s claim for negligence per se under RESPA fails.

C. Rescission

Plaintiff also alleges she is entitled to a rescission of the mortgage contract under TILA, 15 U.S.C. § 1635. Plaintiff is incorrect. Section 1635 of TILA establishes that lenders must notify borrowers of their right to rescind and outlines the penalties for failure to comply with this requirement. Nonetheless, § 1635 expressly states that these provisions do not apply to “residential mortgage transactions.” A residential mortgage transaction is defined in 15 U.S.C. § 1602(w) as a “transaction in which a mortgage . . . interest is created or retained against the consumer’s principal dwelling.” See also 12 C.F.R. § 226.2(a)(24). This is precisely what Plaintiff’s mortgage contract entailed: the parties entered into a transaction in which Plaintiff attained financing from Defendants to acquire residential property. Because Plaintiff is not entitled to rescind the mortgage contract, her rescission claim under § 1635 fails as a matter of law and Defendant’s Motion to Dismiss is granted as to Plaintiff’s rescission claims.

D. Wrongful Foreclosure

Plaintiff also alleges wrongful foreclosure. “An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” Collins v. Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). “The material issue of fact in a wrongful foreclosure claim is whether the trustor was in default when the power of sale was exercised.” Id. Here, Plaintiff affirmatively alleges that she was not in default of payment to the lender at the time the foreclosure occurred, and therefore, the representations as stated on the Notice of Default were false.[2] Taking these assertions as true, the Court finds that Plaintiff has adequately stated a claim for wrongful foreclosure against Defendants. Therefore, Defendants’ Motion to Dismiss is denied as to Plaintiff’s wrongful foreclosure claim.

E. Negligence against QLS

To bring a negligence claim in Nevada, a plaintiff must show that (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; (3) defendant’s breach was the actual and proximate cause of plaintiff’s injuries; and (4) plaintiff was injured. Scialabba v. Brandise Constr., 921 P.2d 928, 930 (Nev. 1996). Liability based on negligence does not exist without a breach of duty. Bradshaw v. Blystone Equip. Co. of Nev., 386 P.2d 396, 397 (Nev. 1963). Plaintiff claims that Defendant QLS, “as trustee under the deed of trust, had a duty to Plaintiff to ensure that any party instructing it to conduct a foreclosure sale of the property actually owned and had rights under the note and deed of trust.” (See #14, Compl. ¶ 32.) Plaintiff also alleges that Defendant QLS’s failure to take the appropriate steps to comply with this duty was the actual and proximate cause of damages to Plaintiff. Id. at ¶ 33-39.) At this point, because Plaintiff’s claim for wrongful foreclosure remains, the Court also finds that Plaintiff has sufficiently pled a claim for negligence.

F. Quiet Title

Finally, Plaintiff brings a claim of quiet title, arguing that because foreclosure was wrongful, Plaintiff remains the rightful owner of the subject property. Taking these assertions as true, Plaintiff has stated a claim for wrongful foreclosure against Defendants. Therefore, Defendants’ Motion to Dismiss is denied as to Plaintiff’s quiet title claim.

IV. Conclusion

Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#15) is GRANTED in part and DENIED in part as follows:

Defendants’ Motion to Dismiss Plaintiff’s claim for intentional misrepresentation is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence per se under TILA is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence per se under RESPA is GRANTED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence against QLS is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for rescission under TILA is GRANTED.

Defendants’ Motion to Dismiss Plaintiff’s claim for wrongful foreclosure is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for quiet title in DENIED.

[1] Defendant Quality Loan Service Corporation filed a Joinder (#22) to Defendant’s Motion to Dismiss that is considered together with Defendant’s Motion herein. [2] If matters outside of the pleadings are submitted in conjunction with a motion to dismiss, Rule 12(b) grants courts discretion to either accept and consider, or to disregard such materials. See Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir.1988). A court exercises this discretion by examining whether the submitted material, and the resulting conversion from the Rule 12(b)(6) to the Rule 56 procedure, may facilitate disposing of the action. Id. at 193 n.3. If the court elects to convert the motion, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, Defendants have attempted to provide evidence refuting Plaintiff’s no default claim, Plaintiff however, has not had an adequate opportunity to fully brief this issue. Accordingly, without opining whether Plaintiff’s claims may survive a summary judgment motion, the Court elects not to convert Defendants’ immediate Motion into one for summary judgment.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in aurora loan servicing, breach of contract, concealment, conspiracy, foreclosure, foreclosure fraud, lehman brothers, respa, tila, truth in lending act, Violations0 Comments

MASSIVE RULING TO PROTECT CALIFORNIA HOMEOWNERS FROM NON JUDICIAL FORECLOSURE: MABRY v. THE SUPERIOR COURT OF ORANGE COUNTY CODE 2923.5

MASSIVE RULING TO PROTECT CALIFORNIA HOMEOWNERS FROM NON JUDICIAL FORECLOSURE: MABRY v. THE SUPERIOR COURT OF ORANGE COUNTY CODE 2923.5

From: b.daviesmd6605

PUBLISHED OPINION AT THE APPEALS LEVEL FOR CC 2923.5. IT IS THE LAW. THERE IS A FACT SPECIFIC CAUSE OF ACTION FOR THIS CALIFORNIA CODE. THIS IS A MASSIVE PROTECTION IN CALIFORNIA FOR THE DEVIL DEEDS OF CC2924, NON JUDICIAL FORECLOSURE. MASSIVE POSITIVE FINALLY FOR HOMEOWNERS IN CALIFORNIA.

[ipaper docId=32477885 access_key=key-172hdd7a3mrc8oyqffji height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in aurora loan servicing, bac home loans, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, STOP FORECLOSURE FRAUD2 Comments


GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Kenneth Eric Trent, www.ForeclosureDestroyer.com

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