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HANMI BANK v. CHUHAK & TECSON, PC, 2018 IL App (1st) | The three-count complaint included allegations that the defendants committed professional negligence…The complaint further alleged that the defendants breached their fiduciary duty by making misrepresentations to the Bank that sought to conceal the defendants’ potential liability for legal malpractice.

HANMI BANK v. CHUHAK & TECSON, PC, 2018 IL App (1st) | The three-count complaint included allegations that the defendants committed professional negligence…The complaint further alleged that the defendants breached their fiduciary duty by making misrepresentations to the Bank that sought to conceal the defendants’ potential liability for legal malpractice.

2018 IL App (1st) 180089

HANMI BANK, Plaintiff-Appellant,
v.
CHUHAK & TECSON, P.C., MICHAEL GILMARTIN, and CARY FLEISHER, Defendants-Appellees.

No. 1-18-0089.
Appellate Court of Illinois, First District, Sixth Division.
December 7, 2018.
Appeal from the Circuit Court of Cook County, No. 17 L 2449, Honorable Diane Shelley, Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

Justice CUNNINGHAM delivered the judgment of the court, with opinion.

¶ 1 The plaintiff-appellant, Hanmi Bank (the Bank), appeals from the judgment of the circuit court of Cook County which dismissed its legal malpractice complaint against the defendants-appellees, Chuhak & Tecson, P.C., Michael Gilmartin, and Cary Fleisher (collectively, the defendants). The court ruled that the action was barred by the statute of limitations and that the Bank could not assert equitable estoppel to overcome the statute of limitations. For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the case for further proceedings.

¶ 2 BACKGROUND

¶ 3 This legal malpractice lawsuit arises from several mortgage foreclosure actions related to loans that the Bank[1] made in 2005 to various borrowers (the borrowers) secured by mortgages on properties in Illinois and Wisconsin.

¶ 4 The Illinois Lawsuits

¶ 5 In 2009, while represented by other counsel prior to retaining the defendants (predecessor counsel), the Bank filed several foreclosure actions against the borrowers alleging that the loans were in default (the 2009 Illinois lawsuits). Six of these lawsuits were filed in the circuit court of Cook County, and one lawsuit was filed in the United States District Court for the Northern District of Illinois. By July 2011, the 2009 Illinois lawsuits had all been voluntarily dismissed without prejudice.

¶ 6 On July 17, 2011, while still represented by predecessor counsel, the Bank filed a 29 count complaint in the United States District Court for the Northern District of Illinois against the borrowers, again alleging that the loans were in default (the 2011 Illinois lawsuit). The Bank then hired the defendants as its new counsel, and the defendants replaced predecessor counsel in representing the Bank in the 2011 Illinois lawsuit.

¶ 7 On January 9, 2012, the Bank, while represented by the defendants, voluntarily dismissed the 2011 Illinois lawsuit. The defendants were aware that the 2009 Illinois lawsuits had previously been dismissed and therefore the dismissal of the 2011 Illinois lawsuit would be the second voluntary dismissal of the Bank’s foreclosure claims against the borrowers.

¶ 8 The Counter claim

¶ 9 Meanwhile, the borrowers filed a declaratory judgment action against the Bank in the circuit court of Cook County seeking to bar any anticipated new actions to foreclose on the properties. On July 17, 2011, the Bank filed a 29 count counterclaim against the borrowers, alleging, inter alia, breach of notes and guaranties (the counterclaim). Following the voluntary dismissal of the 2011 Illinois lawsuit, the borrowers filed a motion to dismiss the Bank’s counterclaim pursuant to section 13-217 of the Code of Civil Procedure (Code). 735 ILCS 5/13-217 (West 2012) (providing that plaintiffs are granted only a one-time right to refile a claim within one year of a voluntary dismissal). On June 5, 2013, the trial court granted the borrowers’ motion and dismissed the Bank’s counterclaim. In its order, the trial court explained that the Bank had already refiled its foreclosure claims when it filed the 2011 Illinois lawsuit and that section 13-217 of the Code barred the Bank from refiling the same claims a third time in the counterclaim. See Health Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 589 (1999) (“[a] counterclaim is an independent cause of action, separate from a complaint, and it must stand or fall on its own merits”). On March 21, 2015, the trial court denied the Bank’s motion for reconsideration.

¶ 10 The defendants advised the Bank that the trial court’s ruling was “illogical” and “unsupported by any case in Illinois” and assured the Bank that the ruling would be reversed on appeal. Upon the advice of the defendants and with the defendants as its counsel, the Bank appealed the trial court’s order dismissing the counterclaim. On December 5, 2016, this court affirmed the trial court’s dismissal of the Bank’s counterclaim, holding that it was essentially the third filing of the foreclosure action and was therefore barred by the single-refiling rule. FourthStreet Villas, LLC v. United Central Bank, 2016 IL App (1st) 151194-U, ¶ 20.[2]According to the Bank, while the appeal of the counterclaim was pending, the defendants internally considered that the Bank may have a potential legal malpractice claim against them regarding the dismissal of the 2011 Illinois lawsuit. The defendants then notified their malpractice insurer about a possible malpractice lawsuit against them by the Bank.

¶ 11 The Wisconsin Lawsuit

¶ 12 On July 20, 2011, at the same time the Bank filed the 2011 Illinois lawsuit while represented by predecessor counsel, the Bank also filed a foreclosure action in the United States District Court for the Eastern District of Wisconsin (the Wisconsin lawsuit). The Wisconsin lawsuit sought to foreclose on the Wisconsin properties that were the subject of the 2009 Illinois lawsuits and 2011 Illinois lawsuit. On June 7, 2013, after the 2011 Illinois lawsuit had been voluntarily dismissed, the federal district court in Wisconsin entered summary judgment against the Bank in the Wisconsin lawsuit. In its order, the federal district court noted that Illinois law applied and that the Bank was precluded from asserting its foreclosure claims because of res judicata and the single-refiling rule under section 13-217 of the Code. On October 17, 2013, the federal district court then denied the Bank’s motion for reconsideration.

¶ 13 Following the denial of the motion for reconsideration, the defendants advised the Bank that the district court’s ruling was “illogical” and had “misconstrued Illinois law.”[3] According to the Bank, the defendants “falsely claimed that the Circuit Court of Cook County had so far ruled differently” and “further advised [the Bank] that there was a specific statute existing in Illinois that provides [sic] when a complaint is filed, the defendant parties have an absolute right to refile a counterclaim even if barred by a statute of limitations.” The defendants thus assured the Bank that the federal district court’s order in the Wisconsin lawsuit would be reversed on appeal. The Bank accordingly appealed the order through the defendants, as its counsel. On August 28, 2015, the Seventh Circuit Court of Appeals affirmed the federal district court’s dismissal of the Wisconsin lawsuit. United Central Bank v. KMWC 845, LLC, 800 F.3d 307 (7th Cir. 2015).

¶ 14 The Instant Legal Malpractice Action

¶ 15 On March 8, 2017, the Bank filed the instant action against the defendants in the circuit court of Cook County alleging legal malpractice. The three-count complaint included allegations that the defendants committed professional negligence by voluntarily dismissing the 2011 Illinois lawsuit. The complaint alleged that because of this negligence, the Bank was unable to successfully foreclose on any of the properties in the Illinois and Wisconsin lawsuits. The complaint further alleged that the defendants breached their fiduciary duty by making misrepresentations to the Bank that sought to conceal the defendants’ potential liability for legal malpractice.

¶ 16 The defendants moved to dismiss the Bank’s complaint pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2012)), arguing that the Bank’s claims were time-barred by the statute of limitations under section 13-214.3(b) of the Code. 735 ILCS 5/13-214.3(b) (West 2012) (an action for damages against an attorney arising out of an act or omission in the performance of professional services must be commenced within two years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought). The defendants’ motion argued that the Bank knew or should have known about its injury when it received the two adverse decisions in June 2013 (the dismissal of the counterclaim lawsuit in the circuit court of Cook County and the dismissal of the Wisconsin lawsuit in the United States District Court for the Eastern District of Wisconsin) (the June 2013 adverse judgments). Therefore, the defendants argued that the Bank was time-barred from filing a legal malpractice claim against them after June 2015. The Bank responded that the defendants were equitably estopped from raising the defense of statute of limitations because they lulled the Bank into appealing the June 2013 adverse judgments and thus caused the Bank to wait to file its legal malpractice claim. The Bank argued that without the assurances of defendants, it would have questioned the defendants’ advice earlier and filed a legal malpractice action. Following a hearing, the circuit court of Cook County issued an order granting the defendants’ motion to dismiss the Bank’s legal malpractice action, and therefore dismissed the Bank’s cause of action against defendants with prejudice.

¶ 17 The Bank filed a motion for leave to file an amended complaint.[4] The motion attached a proposed amended complaint, repleading its same allegations of legal malpractice, as well as pleading that the defendants were estopped from raising the statute of limitations as a defense because they lulled the Bank into waiting to file its legal malpractice complaint. Following another hearing, the court determined the issue to be; “when did [the Bank] know or should have known the cause of injury.” The court further stated:

“Defendants correctly point out that [the Bank] had actual knowledge that [the Bank’s] lawsuits had been dismissed due to defendants’ conduct in previously dismissing the same action. Two separate judges in two separate forums gave the exact same reason as to the cause of the dismissal. [The Bank], a sophisticated banker, cannot claim that these decisions did not put it on notice of the injury and cause. * * * In this case, there is no dispute that when the Seventh Circuit issued its decision on the Wisconsin claim on August 28, 2015, [the Bank] was advised of the injury and the cause of the injury. [Citation.] Nothing more was needed to put the plaintiff on notice that the defendants’ January 9, 2012 dismissal [of the 2011 Illinois lawsuit] was the cause of injury. Therefore, even if [the Bank was] lulled into believing that [it] would win on appeal, the Seventh Circuit decision was the wake up call. It is unexplainable and unreasonable as to why [the Bank] did not file this action until eighteen months later. In order to benefit under the doctrine of equitable estoppel, the plaintiff must demonstrate diligence once it becomes clear that the defendant’s conduct was the cause of any injury. [Citation.]”

The court then denied the Bank’s motion to amend its complaint and concluded that “it is apparent that even after the proposed amendment the cause of action is still barred by the statute of limitations.” This appeal followed.

¶ 18 ANALYSIS

¶ 19 We note that we have jurisdiction to review this matter as the Bank filed a timely notice of appeal following the trial court’s denial of its motion for leave to file an amended complaint. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).

¶ 20 The Bank presents a single issue on appeal: whether the trial court erred in dismissing its complaint after finding that the defendants were not equitably estopped from asserting a statute of limitations defense. Although in its notice of appeal the Bank stated that it is also appealing the trial court’s denial of its motion for leave to file an amended complaint, the Bank did not raise that issue until the very end of its reply brief. Normally, under those circumstances, the Bank would have forfeited its challenge to the trial court’s denial of its motion for leave to file an amended complaint. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (“[p]oints not argued [in appellant’s opening brief] are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing”). Nevertheless, forfeiture is a limitation on the parties, not the court, and we may exercise our discretion to review an otherwise forfeited issue. Great American Insurance Co. of New York v. Heneghan Wrecking & Excavating Co., 2015 IL App (1st) 133376, ¶ 81 (Gordon, J., specially concurring). Accordingly, in the interest of justice, we exercise our discretion to consider the trial court’s denial of the Bank’s motion for leave to file an amended complaint and address that issue first as it is integrally related to the other issue and central to resolution of this case.

¶ 21 Section 2-616(a) of the Code provides that amendments to complaints may be allowed at any time before judgment, on just and reasonable terms. 735 ILCS 5/2-616(a) (West 2012). The decision to allow an amendment to a pleading rests within the sound discretion of the trial court, and absent an abuse of discretion, we will not disturb the trial court’s decision. Mandel v. Hernandez, 404 Ill. App. 3d 701, 705 (2010). A trial court abuses its discretion when no reasonable person would take the view adopted by the trial court. Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 93. While the trial court does have wide discretion, “[a]ny doubt as to whether a plaintiff should be granted leave to file an amended complaint should be decided in favor of allowance of the amendment.” Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 939 (1997). In order to determine whether the trial court abused its discretion in denying a party leave to file an amended pleading, “we consider the following factors: `(1) whether the proposed amendment will cure the defective pleading; (2) whether the proposed amendment would surprise or prejudice the opposing party; (3) whether the proposed amendment was timely filed; and (4) whether the moving party had previous opportunities to amend.'” CIMCO Communications, Inc. v. National Fire Insurance Co. of Hartford, 407 Ill. App. 3d 32, 38 (2011) (quoting Board of Directors of Bloomfield Club Recreation Ass’n v. Hoffman Group, Inc., 186 Ill. 2d 419, 432 (1999)).

¶ 22 We confine our analysis to the first factor, as it is the only one in dispute. The Bank’s original complaint was defective because it alleged a legal malpractice claim outside of the statute of limitations. However, the Bank sought to cure that defect by seeking leave to file an amended complaint that would bar the defendants from using the statute of limitations as an affirmative defense. The trial court evidently believed that there was no basis on which to bar the defendants from asserting the statute of limitations defense to the complaint.

¶ 23 The Bank disagreed and asserted that the principle of equitable estoppel should be applied to bar the defendants from asserting the statute of limitations defense. Further, the Bank points out that the proposed amended complaint adequately pleaded the elements of equitable estoppel to bar the defendants from raising the statute of limitations defense. In order to establish equitable estoppel, the party claiming estoppel must demonstrate that (1) the other party misrepresented or concealed material facts, (2) the other party knew at the time the representations were made that the representations were untrue, (3) the party claiming estoppel did not know that the representations were untrue when they were made and when they were acted upon, (4) the other party intended or reasonably expected the representations to be acted upon by the party claiming estoppel or by the public generally, (5) the party claiming estoppel reasonably relied upon the representations in good faith to his or her detriment, and (6) the party claiming estoppel has been prejudiced by his or her reliance on the representations. In re Parentage of Scarlett Z.-D., 2015 IL 117904, ¶ 25.

¶ 24 The Bank’s proposed amended complaint pleaded these elements with the facts as previously described. Specifically, the Bank asserted (1) that the defendants misrepresented the law regarding the single-refiling rule while concealing from the Bank that it may have a malpractice claim against them; (2) that the defendants knew they had erred regarding the dismissal of the 2011 Illinois lawsuit and that prompted them to notify their liability insurer about a possible malpractice lawsuit; (3) that the Bank trusted the defendants’ assurances and appealed the June 2013 adverse judgments based on that advice; (4) that the defendants never informed the Bank of their own doubts about the appeals and never advised it to seek a second opinion or new counsel; (5) that the Bank, based upon the defendants’ assurances, did appeal the June 2013 adverse judgments in good faith; and (6) that the Bank ultimately relied upon the defendants’ assurances to its own detriment because the appeals process caused the statute of limitations on the Bank’s malpractice claim to expire.

¶ 25 The trial court was required to accept all well-pleaded facts as true, as well as any reasonable inferences that may arise from those facts. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. Based on that well-established principle of law, the Bank amply pleaded facts to meet the threshold of equitable estoppel.

¶ 26 The defendants argue that the Bank did not adequately plead equitable estoppel because it did not allege the first factor: that the defendants made a material misrepresentation or concealed a material fact. However, both the Bank’s original complaint and its amended complaint pleaded that the defendants assured the Bank that the June 2013 adverse decisions were “illogical” and would be reversed. The Bank points out that these assurances were made by the defendants while they simultaneously notified their liability insurer about a possible malpractice lawsuit. The alleged fact that the defendants notified their liability insurer is a material fact. It goes to the crux of this case and suggests that the defendants knew they had committed an error. Yet, they concealed that fact from the Bank and continued to encourage the Bank to pursue a course of action which they knew was untrue and misrepresented the law.

¶ 27 The defendants do not deny that they notified their liability insurer about a possible malpractice claim stemming from the dismissal of the 2011 Illinois lawsuit. They do not even deny that they lulled the Bank into a false sense of security with respect to the propriety of the legal advice that they gave the Bank regarding the pursuit of an appeal. Instead, the defendants argue that the Bank should have rejected their legal advice when the Seventh Circuit Court of Appeals affirmed the dismissal of the Wisconsin lawsuit against the Bank.[5] During oral argument before this court, counsel for the defendants suggested that in order to avoid the statute of limitations issue, the Bank could and should have pursued its malpractice action against the defendants while still being represented by them. This defies the reality of legal representation and common behavior between trusted lawyers and their clients.

¶ 28 Allowing the Bank to file its amended complaint would not only be equitable, but it would also not prejudice the defendants in any way. See Savage v. Mui Pho,312 Ill. App. 3d 553, 557 (2000) (“[t]he most important consideration is whether the allowance of the amendment furthers the ends of justice”); Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 352 (2007) (“there is a broad overall policy goal of resolving cases on the merits rather than on technicalities”). It is clear by comparing the Bank’s original complaint, which did not plead equitable estoppel, to its proposed amended complaint, which quite clearly pleaded all the elements of equitable estoppel, that the defects in the original complaint were cured.[6] See Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 274-75 (1992)(if, after comparing the two complaints, the defects have clearly been cured, the amended complaint should be allowed). Accordingly, the trial court abused its discretion by denying the Bank leave to file its proposed amended complaint. We reverse the trial court’s judgment and remand the case to the circuit court of Cook County so that the Bank can file its proposed amended complaint. The issue of whether the original complaint was dismissed in error is therefore moot and we need not address it.

¶ 29 CONCLUSION

¶ 30 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand the matter for further proceedings consistent with this opinion. On remand, the Bank is allowed to file its proposed amended complaint.

¶ 31 Reversed and remanded.

[1] The 2005 loans were made by the Mutual Bank of Harvey. On July 21, 2009, federal regulators closed the Mutual Bank of Harvey. United Central Bank then entered into a purchase and assumption agreement, securing assignment of the Mutual Bank of Harvey’s mortgages, notes, and guarantees. In 2015, United Central Bank merged into Hanmi Bank.

[2] Our supreme court recently reaffirmed the single-refiling rule and held that a plaintiff cannot file a substantially similar foreclosure action a third time merely by labeling the new cause of action as a breach of a promissory note when the substance of that action is identical to the prior foreclosure actions, i.e., based on the same default of the same note. First Midwest Bank v. Cobo, 2018 IL 123038, ¶ 42.

[3] This was during the same time period that the defendants were also advising the Bank that the trial court’s ruling on the counterclaim was “illogical” and would be reversed on appeal.

[4] In their briefs, both parties claim that this motion was also a motion to reconsider or a motion to vacate judgment. The document in the record, however, states that it is only a motion for leave to file an amended complaint. Yet, based on the record, the trial court seemed to treat the motion as also a motion to reconsider and fully explained its reasoning for its original judgment.

[5] We note that this argument is flawed, as well as the trial court’s comment that the Seventh Circuit’s decision was the “wake up call” for the Bank, because by the time the Seventh Circuit’s decision in the Wisconsin lawsuit was issued, in August 2015, the statute of limitations had already expired.

[6] It is arguable that the original complaint did adequately plead equitable estoppel by alleging that the defendants lulled the Bank into appealing the June 2013 adverse decisions.

 

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Computer glitch costs Virginia couple their home: ‘I begged them for help’

Computer glitch costs Virginia couple their home: ‘I begged them for help’

WTVR-

Foreclosures can be extremely painful events. Imagine finding out years later that it was all a big mistake.

That’s exactly what happened to Jeff and Eva Reiner. The couple turned to Wells Fargo (WFC), their mortgage servicer, for help making their payments after Eva, the family’s breadwinner, was laid off by Verizon (VZ) in 2010.

“We were desperate. I begged them for help,” Eva Reiner told CNN Business.

But Wells Fargo did not accept their requests for a mortgage modification for their beloved six-acre property in rural South Carolina. Wells Fargo eventually foreclosed on the home, forcing the couple to move their teenage son, give up three dogs and forfeit the equity they had built up in the house.

[WTVR]

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Freddie Mac Announces Holiday Eviction Moratorium

Freddie Mac Announces Holiday Eviction Moratorium

MCLEAN, Va., Dec. 10, 2018 (GLOBE NEWSWIRE) — Freddie Mac(OTCQB: FMCC) announced today a nationwide suspension of eviction lock-outs between Dec. 17, 2018 and Jan. 2, 2019. The moratorium applies to all foreclosed, occupied homes owned by Freddie Mac.

“As we have done in past years, we are suspending evictions from Freddie Mac-owned homes to help provide families with a greater measure of certainty during the upcoming holiday season,” said Yvette Gilmore, Freddie Mac’s Vice President of Single-Family Servicer Performance Management.

The holiday suspension will apply to eviction lockouts on Freddie Mac real estate owned homes but will not affect other pre- or post-foreclosure activities. Companies managing local evictions for Freddie Mac may continue to file documentation as needed during the suspension period.

The company also confirmed its mortgage relief options in disaster areas impacted by the California wildfires. Borrowers who may be experiencing financial challenges or disaster hardships are strongly encouraged to contact their mortgage servicer to explore one of the Freddie Mac workout options.

Freddie Mac has helped more than 1.3 million financially troubled borrowers avoid foreclosure since 2009. For more information on Freddie Mac mortgage relief, visit My Home by Freddie Mac(SM).

About Freddie Mac
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, Twitter @FreddieMac and Freddie Mac’s blog FreddieMac.com/blog.

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

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Fannie Mae Announces Eviction Suspension for the Holidays

Fannie Mae Announces Eviction Suspension for the Holidays

Alicia Jones

202-752-5716

WASHINGTON, DC – Fannie Mae (FNMA/OTCQB) announced today that it will suspend eviction lockouts of foreclosed single-family properties during the holiday season. The suspension of eviction lockouts will apply to single-family and 2-4 unit properties from December 17, 2018 through January 2, 2019. During this period, legal and administrative proceedings for evictions may continue, but families will be allowed to remain in the home. Servicers should continue to follow Fannie Mae’s guidelines for single-family mortgages related to homes and borrowers in disaster-affected areas.

“We believe it is important to extend the timeline of help for struggling borrowers during the holidays,” said Jacob Williamson, Vice President of Single-Family Real Estate at Fannie Mae. “We encourage homeowners who may be struggling with their mortgage or facing possible foreclosure to reach out to Fannie Mae or your servicer to get help. We want to help pursue those options whenever possible.”

Homeowners can visit www.knowyouroptions.com for resources on how to prevent foreclosure, including how to find out if Fannie Mae owns their loan. Homeowners also can contact Fannie Mae at 1-800-232-6643 for more information.

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.



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Maki v. GREEN TREE SERVICING, LLC | FL 2nd DCA – as has become far too common in residential foreclosure cases, the plaintiff that took the case to trial—Wilmington Savings Fund Society, FSB, which was neither the original lender nor the original plaintiff—failed to present legally sufficient evidence that it had standing under section 673.3011, Florida Statutes (2016), to enforce the promissory note upon which this foreclosure action is based

Maki v. GREEN TREE SERVICING, LLC | FL 2nd DCA – as has become far too common in residential foreclosure cases, the plaintiff that took the case to trial—Wilmington Savings Fund Society, FSB, which was neither the original lender nor the original plaintiff—failed to present legally sufficient evidence that it had standing under section 673.3011, Florida Statutes (2016), to enforce the promissory note upon which this foreclosure action is based

 

GREGORY MAKI and ELIZABETH MAKI, Appellants,
v.
GREEN TREE SERVICING, LLC, Appellee.

Case No. 2D17-922.
District Court of Appeal of Florida, Second District.
Opinion filed December 5, 2018.
Appeal from the Circuit Court for Lee County; Michael T. McHugh, Judge.

Gregory Maki and Elizabeth Maki, pro se.

Preston C. Davis, Stephen Janes, Steven G. Hurley, and William Noriega of Padgett Law Group, Tallahassee, for Appellee.

SALARIO, Judge.

This is an appeal from a final judgment of foreclosure. We are required to reverse because, as has become far too common in residential foreclosure cases, the plaintiff that took the case to trial—Wilmington Savings Fund Society, FSB, which was neither the original lender nor the original plaintiff—failed to present legally sufficient evidence that it had standing under section 673.3011, Florida Statutes (2016), to enforce the promissory note upon which this foreclosure action is based.[1]

The already expansive body of foreclosure law in Florida will not benefit from another long opinion that details a foreclosure plaintiff’s failure of proof when standing has been placed at issue or that repeats the settled legal principles governing that question. That is, and was when this case was tried, well-trodden ground. The bottom line in the present appeal is this: Although it proceeded to trial on the theory that it was the holder of the note, Wilmington’s trial evidence failed to show that the entity identified as the original lender on the note (America’s Wholesale Lender) ever negotiated, assigned, or otherwise transferred the note to anyone and, even if did, that the entity that supposedly assigned the note to Wilmington (Ditech Financial, LLC, as successor-by-merger to Green Tree Servicing, LLC) ever actually owned the note or otherwise had the right to assign or transfer it. See, e.g., Olivera v. Bank of Am., N.A., 141 So. 3d 770, 773 (Fla. 2d DCA 2014) (reversing summary judgment on standing grounds where “[n]othing in the record reflect[ed] a chain of transfer of interest . . . from the original lender”); Segall v. Wachovia Bank, N.A., 192 So. 3d 1241, 1246 (Fla. 4th DCA 2016)(reversing final judgment of foreclosure based on lack of standing where “Wachovia failed to sufficiently prove that Chase Home merged with Chase Bank[] and that Chase Bank thus acquired the note”). At oral argument, Wilmington all but conceded the absence of evidence on the latter point.

Because Wilmington’s failure of proof on standing is dispositive, we do not reach the other issues raised by the appellants. We reverse and remand with directions that the trial court enter an order of involuntary dismissal, which is the relief the appellants properly sought in the trial court. See, e.g., Partridge v. Nationstar Mortg., LLC, 224 So. 3d 839, 842 (Fla. 2d DCA 2017).

Reversed and remanded with directions.

KHOUZAM and BLACK, JJ., Concur.

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

[1] Green Tree Servicing, LLC—a prior named plaintiff in the circuit court proceedings—is the listed appellee in the style of this case. Prior to the entry of the final judgment in the trial court, however, Wilmington was substituted as the plaintiff and is the party ultimately required to establish standing for the purposes of this foreclosure.

 

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TFH 12/9 |  Paragraph 22, The Notice of Default and Right To Cure: How To Use This Most Overlooked Foreclosure Defense To Defeat Summary Judgment and Win at Trial (Foreclosure Workshop #16: Rebroadcast from July 17, 2016)

TFH 12/9 | Paragraph 22, The Notice of Default and Right To Cure: How To Use This Most Overlooked Foreclosure Defense To Defeat Summary Judgment and Win at Trial (Foreclosure Workshop #16: Rebroadcast from July 17, 2016)

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 – December 9, 2018

Paragraph 22, The Notice of Default and Right To Cure: How To Use This Most Overlooked Foreclosure Defense To Defeat Summary Judgment and Win at Trial (Foreclosure Workshop #16: Rebroadcast from July 17, 2016)

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This important broadcast, first exclusively airing on The Foreclosure Hour on July 17, 2016, is being repeated because homeowners are still largely under-using this powerful weapon against foreclosure, given the sloppiness and dishonesty of loan servicers, although it is available in virtually every mortgage and deed of trust situation.

John Waihee and I are pleased to have heard from many of our listeners that since that first broadcast they have used this defense successfully and easily to defeat summary judgments, even when appearing pro se, but too many homeowners and even their counsel are still inexcusably overlooking this powerful defense.

Not only will its knowledgeable use almost always defeat a foreclosure summary judgment no matter in what jurisdiction a borrower resides, but it can also result in a foreclosure action being dismissed entirely and with prejudice, or result in an extremely attractive settlement once your pretender lender and its loan servicer and their attorneys for a change have their backs embarrassingly up against an evidentiary wall.

All a borrower facing foreclosure needs to know about this “bunker buster” foreclosure defense mega-weapon is contained within this one hour rebroadcast. You cannot afford to miss a minute of it.

This is, moreover, just another glaring example of how vulnerable foreclosure rules really are in court once one understands both how to use evidentiary objections correctly and why most judges, far from being stupid or corrupt, have nevertheless become brainwashed into mistakenly believing blindly that borrowers facing foreclosure are just deadbeats who have not paid their mortgages and whose arguments are not worthy of evidentiary review.

You will also gain valuable insight from this rebroadcast into how judges historically have become misled by the legal system’s defective rule reasoning, what we have termed “The Rule Ritual,” mistaking “Rule Statements” for “Rules,” without digging into the purposes behind the rule statements, which homeowners with an increased understanding can, turning the tables on lenders as it were, use to their winning benefit.

Please join John Waihee and me for the rebroadcast of our Foreclosure Workshop #16, and you will quickly gain this uniquely specialized knowledge, as many of our listeners already successfully have, about Paragraph 22, that could well save your home from foreclosure and your family from eviction.

This affirmative defense is contractual, in that it is a condition precedent to a lender’s ability to foreclosure, written into the language of standard mortgages and deeds of trust, and even were it absent in your loan documentation, courts have considered it to be contractually required under the common law, Santiago v. Tanaka, 137 Haw. 137, 157, 366 P.3d 612 (2015).

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

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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FTC V. AMG CAPITAL MANAGEMENT, LLC | $1.3B award upheld against racecar driver Scott Tucker over payday loans

FTC V. AMG CAPITAL MANAGEMENT, LLC | $1.3B award upheld against racecar driver Scott Tucker over payday loans

Prosecutors have said he made billions of dollars by exploiting financially struggling Americans, charging illegal interest rates that sometimes exceeded 1,000 percent.

NBC-

A U.S. appeals court on Monday upheld a nearly $1.3 billion award against a pro racecar driver who was sent to prison following a conviction for cheating consumers through his payday loan businesses.

Information Scott Tucker’s companies provided consumers did not accurately disclose the loans’ terms, a unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals ruled.

The judges also said a lower court did not abuse its authority when it ordered Tucker and other defendants to pay back nearly $1.3 billion.

[NBC]

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JERRY HOANG V. BANK OF AMERICA, N.A. | 9th Circuit – borrower has six years thereafter to file an action in court to rescind in Washington State based on that rescission notice to a lender if rejected, calculated in a way analogous to that State’s most similar statute of limitations, and similarly as to other States…now controlling in every federal district court in the Ninth Circuit unless subsequently the Hoang panel decision is reconsidered and modified en banc.

JERRY HOANG V. BANK OF AMERICA, N.A. | 9th Circuit – borrower has six years thereafter to file an action in court to rescind in Washington State based on that rescission notice to a lender if rejected, calculated in a way analogous to that State’s most similar statute of limitations, and similarly as to other States…now controlling in every federal district court in the Ninth Circuit unless subsequently the Hoang panel decision is reconsidered and modified en banc.

H/T Dubin Law Offices

The panel held that under Jesinoski v. Countrywide Home Loans, 135 S. Ct. 790, 792 (2015), borrowers may affect rescission of such a loan simply by notifying the creditor of their intent to rescind within the three-year period from the loan’s consummation date. The panel further held that because TILA did not include a statute of limitations outlining when an action to enforce such a rescission must be brought, courts must borrow the most analogous state law statute of limitations and apply that limitation period to TILA rescission enforcement claims. The panel held that in Washington, the state’s six-year contractstatute of limitations was the most analogous statute. The panel rejected the district court’s application of TILA’s one-year statute of limitations for legal damages claims. The panel also rejected the bank’s argument that Washington’s two-year catch-all statute of limitations should apply. Because the borrower brought this action within six years, the district court erred in dismissing the TILA claim as time barred.

17-35993_Documents(1) by DinSFLA on Scribd

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A second Wells Fargo glitch results in the foreclosure of more homes

A second Wells Fargo glitch results in the foreclosure of more homes

Digital Trends-

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Flagstar finalizes acquisition of Wells Fargo branches

Flagstar finalizes acquisition of Wells Fargo branches

Housing Wire-

Flagstar Bank announced it finalized its acquisition of 52 Wells Fargo branches on Monday.

The branches are located across four Midwest states and include approximately $2 billion in deposits, along with certain related assets.

As previously reported, the bank branches are located in Indiana, Michigan, Ohio and Wisconsin. This move involves about 490 team members, all of whom will receive offers of employment from Flagstar.

[HOUSING WIRE]

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Wells Fargo computer glitch blamed after more than 500 people lose their homes

Wells Fargo computer glitch blamed after more than 500 people lose their homes

WTSP-

Wells Fargo partially blames a computer glitch for an error that cost approximately 545 people their homes.

The bank told the Securities and Exchange Commission it incorrectly denied 870 requests to modify loans over an eight-year period, and roughly 60 percent of those homeowners ended up in foreclosure, according to CBS News.

Now, regulators want to know how it happened.

Some of the affected homeowners have since gotten checks from Wells Fargo, but at least one attorney tells CBS News the money doesn’t even begin to cover what these people lost.

[WTSP]

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Exclusive: Consumer bureau name change could cost firms $300 million

Exclusive: Consumer bureau name change could cost firms $300 million

The Hill-

Changing the name of the Consumer Financial Protection Bureau (CFPB) could cost the businesses it regulates more than $300 million, according to an internal agency analysis obtained by The Hill.

Banks, lenders and other financial services firms subject to CFPB supervision could be required to spend millions of dollars if the agency goes through with a rebranding proposal from acting Director Mick Mulvaney.

The agency, established by the 2010 Dodd-Frank Wall Street reform law, has been known as the Consumer Financial Protection Bureau and CFPB since it opened in 2011. It was led by Richard Cordray, a Democrat, from 2012 until his resignation in November 2017.

[THE HILL]

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TFH 12/2 | Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

TFH 12/2 | Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

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 – December 2, 2018

Kipuhulu Sugar Co. v. Nakila — Does a Different Statute of Limitations Apply to the Enforcement of Mortgages than to the Enforcement of Notes? (Foreclosure Workshop #48: Rebroadcast from October 15, 2017)

.

 ———————

 

In recent years, particularly in Florida, there has been increasing litigation regarding the applicability of the statute of limitations in foreclosure cases, and now courts in other states have started to wrestle in the mortgage context with this yet another confusing area of American law.

It seems wise therefore to repeat this important show this Sunday since recently courts in two jurisdictions have now surprisingly ruled that the statute of limitations for mortgages and deeds of trust is longer than for the underlying promissory note. How can this be?

On prior shows we have discussed how the statute of limitations, which sets a time bar controlling how long litigants have to sue on their claims in court, should be and is being applied to mortgage and trust deed loans (Listen to the January 31, 2016 Foreclosure Hour, Past Broadcasts, www.foreclosurehour.com).

Once again, the treatment of homeowners is shown to differ when compared to how the statute of limitations is applied in other contract actions.

Even though, for instance, a mortgage (and deed of trust) represent security for payment of the underlying debt and once the underlying debt obligation is uncollectible, having been paid or having expired by operation of law, it logically follows that the security for payment of the debt is extinguished as well.

Even the Fannie Mae and Freddie Mac universal mortgage forms recite that the mortgage is held as security for the debt.

But the requirements of logic never seem to deter foreclosure attorneys, who in Hawaii for instance have now begun successfully to argue the opposite, that a mortgage continues to be enforceable up to twenty years even though the note has become unenforceable due to the expiration of the applicable contract statute of limitations.

Recently, even the Hawaii Intermediate Court of Appeals came to this erroneous position, which issue is now finally headed to the Hawaii Supreme Court.

Will this counter-intuitive argument be coming to your jurisdiction soon?

Tracing the more than one-hundred-year-old case law origins of this erroneous argument as we do on today’s show is not only important in order to block its likely use by foreclosure attorneys in the future, but is important also to expose some of the most alarming weaknesses in the misuse of the doctrine of stare decisis which some judges think requires that past judicial decisions be followed no matter what, particularly by lower courts.

Bad precedents can become, like deadly viruses, fatal to personal and property rights.

And lastly, this newly emerging and erroneous statute of limitations argument clearly illustrates why homeowners need to unite, organizing nationally to effectively combat the otherwise proliferation of so many of these bad precedents being generated by what we have described on past shows as The Rule Ritual.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

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.



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DEUTSCHE BANK, TRUMP’S SUGAR DADDY, RAIDED BY POLICE ON SUSPICION OF MONEY LAUNDERING

DEUTSCHE BANK, TRUMP’S SUGAR DADDY, RAIDED BY POLICE ON SUSPICION OF MONEY LAUNDERING

The German lender, who Trump owes $300 million, is not having a great morning.

Vanity Fair-

The past few years have not been the best of times for Deutsche Bank. In fact, one might characterize them as whatever is German for anni fucking horribiles, which is to say that at various points the lender has: failed its stress test; released its own (!) internal survey showing that a large number of employees are embarrassed to admit they work at the bank; had Bloomberg call its C.E.O. a failure; seen its net income fall off a cliff; had a pair of traders convicted of manipulating Libor; and conducted an internal probe that shows it might have “handled about $150 billion” of the $230 billion that was laundered out of Russia’s Danske bank. And on Thursday, this happened:

German police raided Deutsche Bank’s offices in Frankfurt in a probe of money laundering against the country’s flagship lender. . . . The public prosecutor’s office in Frankfurt said an evaluation of data from the Panama Papers had triggered suspicion that the bank may have helped customers create offshore companies in tax havens around the world.

[VANITY FAIR]

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Deutsche Bank raided over suspected money laundering

Deutsche Bank raided over suspected money laundering

DW-

A money laundering probe stemming from the “Panama Papers” has led police to Deutsche Bank, according to authorities. Prosecutors believe the bank helped clients “transfer money from criminal activities” to tax havens.

Federal police on Thursday raided the Frankfurt offices of Deutsche Bank. The Frankfurt prosecutor’s office said the raids stemmed from an investigation into suspected money laundering at the German bank.

About 170 law enforcement agents took part in the operation. The investigation revolves around multiple Deutsche Bank employees, including two believed to still be working at the financial institution.

[DW]

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Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

Update and Expansion: Appeals in a Foreclosure Case, an Empty Right in Ohio?

Blockchain and Banking-

A few months ago, I posted a blog article questioning the true economic viability of appellate opportunities of a putative junior lien creditor in Ohio foreclosure cases. In that post, I speculated on the situation that might be faced by an appealing mortgagor if it wanted to appeal from a trial court order granting a decree of foreclosure and directing a sale of the liened property. A new decision addresses that fact pattern.

The prior article was prompted by the Green Tree Servicing v. Asterino-Starcher, et al., 2018-Ohio-977 (Franklin Cty. App., March 15, 2018) decision and the interpretation therein of Ohio Revised Code Section 2329.45.  A few months after the Green Tree Servicing decision, the Ohio Supreme Court weighed in on appeal by the other common foreclosure defendant, the mortgagor.  For better or worse, the answer is the same: a foreclosure case defendant’s right to appeal is often, in reality, illusory.

State of Ohio ex rel. Sponaugle v. Hein, Judge, 153 Ohio St. 3d 560 (Aug. 9, 2018) is a writ case against a common pleas court judge.  The unusual procedural situation arose from an ordinary residential foreclosure case in Darke County, Ohio initiated by a mortgage lending financial institution.  Unlike the Green Tree Servicingsituation, in Sponaugle the mortgagor fought the foreclosure case.  Again, a foreclosure decree was granted to the lien creditor plaintiff and a foreclosure sale was held.  As in Green Tree Servicing, a defendant (here the mortgagors, Mr. and Ms. Sponaugle rather than a junior lien creditor) appealed from the foreclosure decree and sought a stay of the foreclosure sale.

[BLOCKCHAIN AND BANKING]

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Falcon v. WILMINGTON SAVINGS FUND SOCIETY, FSB | FL 3rd DCA – Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

Falcon v. WILMINGTON SAVINGS FUND SOCIETY, FSB | FL 3rd DCA – Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

 

Blasino Falcon, Appellant,
v.
Wilmington Savings Fund Society, FSB, Appellee.

Case No. 3D17-1799.
District Court of Appeal of Florida, Third District.
Opinion filed November 21, 2018.
An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 17-1192, Rodney Smith, Judge.

Legal Services of Greater Miami, Inc., and Jacqueline C. Ledon and Jeffrey M. Hearne, for appellant.

Kelley Kronenberg and Jacqueline Costoya (Fort Lauderdale), for appellee.

Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.

LOGUE, J.

The Borrower, Blasino Falcon, appeals the trial court’s entry of a final judgment in favor of the Lender, Wilmington Savings Fund Society, FSB. Because the judicial default was entered against the Borrower without allowing the Borrower a meaningful amount of time to respond to the motion for default, we reverse.

Factual Background

The Lender filed a foreclosure action against the Borrower on January 17, 2017. Thereafter, the Borrower, asserting that he was in the process of obtaining counsel, filed a pro se motion for extension of time to respond to the complaint. The Lender did not oppose the extension of time and, as a result, the response to the complaint became due on March 23, 2017. Approximately six days after the due date, on March 29, 2017, the Borrower’s counsel filed a notice of appearance. However, counsel neither moved for another extension of time nor filed a responsive pleading.

On March 31, 2017, roughly one week after the responsive pleading was due pursuant to the extension, the Lender moved for judicial default. The motion for default was filed at 7:08 a.m. on the morning of March 31, 2017. At approximately 9:30 a.m. that same day, the trial court entered the default. Based upon the certificates of service, copies of the motion and the order of default were served upon the Borrower’s counsel.

On May 4, 2017, the trial court entered a sua sponte order setting the trial in the case for July 7, 2017. The Borrower, on June 8, 2017, filed his motion to set aside the default, arguing that the default had been entered in violation of his due process rights. The Borrower did not provide an explanation for his delay in moving to vacate the default.

The following week, the Lender filed its motion for summary judgment and request for attorney’s fees. The trial court heard the motion to set aside the default on July 6, 2017, but denied the motion. At the final hearing on July 7, 2017, the trial court, given the prior default, entered the final judgment of foreclosure against the Borrower. This appeal follows.

Under Florida law, “[i]t is fundamental that when a party against whom affirmative relief is sought has appeared in an action by filing or serving papers, that party shall be served with notice of the application for default as required by Florida Rule of Civil Procedure 1.500(b).” Yellow Jacket Marina, Inc. v. Paletti, 670 So. 2d 170, 171 (Fla. 1st DCA 1996); see Int’l Energy Corp. v. Hackett, 687 So. 2d 941, 943 (Fla. 3d DCA 1997) (“[W]hen a party against whom affirmative relief is sought has appeared in the action by filing or serving any papers, no default may be entered against such party without prior notice.”). The Lender argues that “it is undisputed that the technical requirements of notice were accomplished,” and therefore, the trial court did not err in entering the default. We disagree.

As we have held previously, “it is obvious that the `notice of application’ provided by 1.500(b) would be purposeless unless given in sufficient time to permit some meaningful action to be taken upon it after its receipt.” Cohen v. Barnett Bank of S. Fla., 433 So. 2d 1354, 1355 (Fla. 3d DCA 1983). In Cohen, we reversed a default and consequent judgments where the default order was entered two days after the application for default was served by mail. Id. Citing the five-day mailing period under Florida Rule of Civil Procedure 1.090(e), we acknowledged that “[s]ince the two day period in the notice given by the bank was less than that, and was patently insufficient even without reference to the rule, it is plain that the plaintiff did not comply with Fla. R. Civ. P. 1.500(b).” Cohen, 433 So. 2d at 1355 (emphasis added).

Here, the time elapsed between the service and filing of the application for default and the entry of the default was roughly two-and-a-half hours, strikingly less than the already “patently insufficient” time period in Cohen. Accordingly, it was error for the trial court to enter the default against the Borrower. We therefore reverse the order of default and consequent judgment, and remand for further proceedings.

Reversed and remanded.

Not final until disposition of timely filed motion for rehearing.

 

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TFH 11/25  |  Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

TFH 11/25 | Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

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 – November 25, 2018

Introducing a New, Quicker and Inexpensive, Detailed Evidence Strategy for Effectively Defeating Securitized Trust Foreclosures, Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

.

 ———————

 

By way of background, few observations in political philosophy have ever proven truer than those attributed to Victor Hugo when he penned “No army can withstand the strength of an idea whose time has come”.

John and I on past shows have summarized a variety of common sense ideas for foreclosure reform long overdue, whose time is clearly coming.

On today’s show we go one step further, suggesting how in individual cases our listeners can speed up that reform process, and at the same time defeat in court their foreclosing securitized trust, by using a new, cheap, yet more effective evidence strategy for gathering the facts in their individual cases, which we are revealing today for the first time.

For, the American legal system, or more properly nonsystem, needs help as it is hopelessly broken in the foreclosure field, as evidenced by the extremely unfair treatment of homeowners in the last few decades in both state and federal courts with the emergence of securitized trusts.

The splitting of the debt and the security, the creation of a hidden underground secondary securitized mortgage market, incomprehensible loan paperwork, the submission of fraudulent documents in court proceedings, forced below-market credit-bid-rigged auction sales, and bloated deficiency judgments — all need rethinking, but how?

In the Anglo-Saxon jurisprudential system we inherited, for better or for worse, institutional restraints, often misunderstood by laypersons, that place the burden of gathering and producing evidence upon the parties and not the court.

Homeowners need therefore to urgently sharpen their ability to get needed evidence in their individual cases before foreclosure courts.

The first step in doing so is to abandon what we have termed and exhaustedly studied on past shows, termed “The Rule Ritual”, which causes a misapplication and misprocessing of precedent when our courts look for authority in words rather than thoughts, one of the classic definitions of insanity.

In truth, the law and past precedent are fact-intensive, requiring an understanding of the purpose behind each rule statement and carefully matching that purpose with outcomes, results, and consequences.

On today’s show we identify and seek to correct yet a second equally fundamental corresponding weakness in our legal system in addition to deficiencies in processing fact-intensive authority.

We examine the failure to correctly process facts recurring in individual cases, what might be termed “The Fact Ritual,” and how each of us can correct that.

Unlike medicine, for instance, the legal system has no equivalent to the Centers for Disease Control.

Instead, we have thousands of judges scattered throughout the United States, each with their own microscope and stethoscope, as it were, if that, without any means of either gathering or sharing information with one another, even within the same jurisdiction.

There is no database of pathogens to benefit from, such as Linda Green, Lorrie Womack, National Title Clearing, and others, including the hundreds of securitized trusts such as Bank of New York Mellon, U.S. Bank, Deutsche Bank, etc., or for sharing cures, as it were.

Instead, each judge in each case is asked to reinvent the wheel, and that has consumed more time than judges typically have had, and more money than homeowners normally have, giving pretender lenders enormous practical advantages in American courts.

On today’s show we unveil a single, cost-effective method of countering and reversing that pretender lender advantage in securitized trust foreclosures, which experienced litigators as well as pro se litigants can greatly profit by.

We believe that these new, effective discovery techniques could additionally be exactly the lynchpin for long awaited broader reform within the foreclosure system that many have been waiting for, enabling our courts to better organize themselves to do justice in foreclosure cases finally having before them the true facts.

Listen to today’s show to learn what these new discovery techniques are, how to use them in individual cases, and how they could ultimately yield fundamental foreclosure reform no army of foreclosure attorneys will be able to withstand.

Gary Dubin

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

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.



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PennyMac Corp. v. Travis | Hawaii ICA – There is a genuine issue of fact as to when Chase was entitled to enforce the Note, and thus had standing at the time the Complaint was filed

PennyMac Corp. v. Travis | Hawaii ICA – There is a genuine issue of fact as to when Chase was entitled to enforce the Note, and thus had standing at the time the Complaint was filed

Great Job Gary Dubin Law Offices!

CAAP-16-0000806sdo by DinSFLA on Scribd

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THE NON CONSUMER CFPB Files SCOTUS Amicus Brief; Argues FDCPA Does Not Apply To Non-Judicial Foreclosure Proceedings

THE NON CONSUMER CFPB Files SCOTUS Amicus Brief; Argues FDCPA Does Not Apply To Non-Judicial Foreclosure Proceedings

The National Law Review-

The CFPB has filed an amicus brief in the U.S. Supreme Court in support of the respondent/law firm defendant in Obduskey v. McCarthy & Holthus LLP, et al., a Tenth Circuit decision that held that a law firm hired to pursue a non-judicial foreclosure under Colorado law was not a debt collector as defined under the Fair Debt Collection Practices Act.  The Supreme Court granted certiorari in June 2018 to review the Tenth Circuit’s decision and resolve a circuit split on whether the FDCPA applies to non-judicial foreclosure proceedings.  Because the Supreme Court’s decision in Obduskey will determine whether the FDCPA’s protections apply in countless non-judicial foreclosure actions, it could have a significant financial impact on the mortgage industry.

The amicus brief represents the second CFPB amicus brief filed under Acting Director Mulvaney’s leadership (the first was filed in the Seventh Circuit) and the first CFPB amicus brief filed in the Supreme Court under his leadership.  Most significantly, the amicus brief appears to be the first amicus brief filed by the CFPB in which it has supported the industry position.

In its amicus brief, the CFPB points to FDCPA Section 1692a(6) which defines the term “debt collector” to include, for purposes of Section 1692f(6), someone whose business is principally the “enforcement of security interests.”  Section 1692f(6) provides that it is an unfair or unconscionable collection practice to take or threaten to take nonjudicial action to effect dispossession of property under specified circumstances.  The CFPB argues that it follows from this ‘limited-purpose definition of debt collector” that, except for purposes of Section 1692f(6), enforcing a security interest, is not, by itself debt collection and to read the provision differently would render the “limited-purpose definition…superfluous.”

[THE NATIONAL LAW REVIEW]

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Four generation home lost to foreclosure

Four generation home lost to foreclosure

Wowt-

After living in one Omaha home for decades, it’ll have a new owner. However, it’s not by choice.

Judi Lee, 75, is being forced to move out after failing to amend a loan.

Ten years ago, Lee’s mother used the home for collateral on a 45,000 dollar loan through Wells Fargo.

“She was 90 and she lived two years after the loan was taken out,” Lee said.

Wells Fargo stated the law prohibits discrimination for age.

When Lee’s mother and uncle died, Judi couldn’t make the $250 monthly payment on a fixed income. She requested a loan modification.

[WOWT]

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TFH 11/18 | Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

TFH 11/18 | Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

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 – November 18, 2018

Introducing a New, More Powerful Foreclosure Defense Being Revealed Exclusively for the First Time to Our Foreclosure Hour Listeners

.

 ———————

 

Pretender lenders and their securitized trust colleagues have shown great imagination and skill in adjusting to increased judicial supervision, time and time again.

Armed with unlimited funds and professional battalions of well paid lawyers, they have been able to circumvent increased intended governmental safeguards and consumer protections against securitized trust predatory lending abuses, despite at least on the surface good faith attempted oversight by this Nation’s state and federal legislative, executive, and judicial regulatory and adjudicatory institutions.

They have done so successfully by taking advantage of the high costs of foreclosure litigation, while hiding behind the intellectual concept of the traditional mortgage/trust deed model and related centuries old statutes and case law precedents protected by stare decisis.

And when their abuses have been identified, they have purchased their way out of constantly reported regulatory criticisms by paying relatively minor monetary sanctions when compared to the hundreds of billions of dollars they have garnered through such abuses, while incomprehensibly they and their loan servicers merely repeating such abuses over again and over again.

The traditional lending model which conceptually has protected securitized trusts from real supervision is historically based on a bank making mortgage loans with depositors funds, holding on to the underlying promissory notes and collateral security until the loan is paid in full, at which point returning the promissory notes to its borrowers marked “paid in full”.

But as past listeners to The Foreclosure Hour know, that is not what happens in the hidden underground securitized trust banking system, where loans and real property collateral are sliced and diced and sold to both private and institutional investors as mortgage backed securities (MBS) and collateralized debt obligations (CDO).

Involved within that complex process are a large cast, including brokers, insurance companies, underwriters, appraisers, loan servicers, robo-signers, notaries, endorsers, personal and institutional investors, government and quasi-government agencies, and others avoiding traditional state recording system supervision, theoretically replaced by an unregulated series of similarly named entities known as the Mortgage Electronic Registration Systems, Inc. (MERS) masking securities transactions.

That deception has been judicially challenged in two major stages so far this century, and is now about to enter its ultimate third stage, of which every homeowner facing foreclosure needs to know in order to take full advantage of in court.

The first stage was when securitized trusts sought to utilize the traditional mortgage/trust deed model by merely submitting into evidence in court the mortgage facially assigned to it, the mortgage assignment usually certified as recorded just before foreclosing at the state or county recording office.

In response, many homeowners in foreclosure countered with “show me the note,” relying upon an ancient United States Supreme Court decision based on the traditional mortgage/trust deed model, interpreted to establish that “the mortgage follows the note”.

And their efforts began to win favor with a few judges, particularly in Florida and in New York, aided by increased revelations about robo-signers, which led foreclosure defense attorneys to argue about missed REMIC trust cutoff dates and false mortgage assignments.

However, courts invariably rejected challenges to so-called irregularities in securitized trust paper shuffling, to this day misinterpreting a borrower’s claim that the trust did not own the loan for a beneficiary’s claim of breach of the trust agreement usually known as a “pooling and servicing agreement”.

Beginning to lose the “I have the mortgage” claim, pretender lenders began to shift focus away from defending suspicious securitized mortgage assignments and suspicious securitized trust deed assignments to the negotiable instrument UCC claim instead, “I have the note”.

That shift in evidentiary focus led to the second stage, now challenging the possession and ownership of the note by pretender lenders and their entitlement to foreclose, first showing breaks in the chain of their title rendering their paperwork void as opposed to voidable without claiming to be a party to the pooling and servicing agreement, second showing that the foreclosing plaintiff did not prove having possession and ownership of the note when the foreclosure complaint was first filed (“ownership at inception”), and third showing that its supporting declarant did not have personal knowledge of all of the related securitized trust transactions, its otherwise threshold burden of proof.

As beneficial at first as arguments have been in a growing number of state jurisdictions based on there being breaks in the chain of title applying the traditional model logic, or based upon applying the ownership at inception rule, or based upon enforcing personal knowledge evidentiary requirements in challenging securitized trust abuses in many state jurisdictions under the leadership of state appellate courts attempting to bring visibility into the clandestine operations of securitized trusts, these safeguards too, it is submitted, will eventually fail because securitized trusts and their attorneys will and already are starting to create new, false paperwork purporting to overcome such second stage challenges to “I have the note”.

What is needed is a new, third stage challenge, one that can completely open up and expose the fraudulent operations within securitized trusts.

John and I believe that we have found such an ultimate tool in the form of an existing but little used affirmative defense already existing in the civil procedure rules in every federal and state jurisdiction in the United States.

Use of this ultimate affirmative defense in foreclosure litigation, to be revealed for the first time on today’s show, could not only fully open up for judicial scrutiny the low visibility operations of securitized trusts to the enormous benefit of homeowners, but could ultimately replace the traditional mortgage/trust deed model in foreclosure courts, giving homeowners also the protection of securities laws.

And this ultimate affirmative defense could do all of that within the traditional federal and state rules of civil procedure without the need for new rules, new legislation, or new case law.

Listen to this Sunday’s show to be among the first to know and to learn about the full potential of this ultimate foreclosure affirmative defense.

And please remember that most of the Nation (except Hawai’i which remains on standard time) has returned to standard time this month.

As a result, The Foreclosure Hour for the next six months is now heard live one hour earlier on most of the Mainland on iHeart Radio on the Internet, which live show however repeats itself the following hour on iHeart Radio as well for those who missed our live broadcast.

Gary Dubin

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383

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The Foreclosure Hour 12

 

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