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Jury awards Yuba Co. homeowner $16M in mortgage PHH suit

Jury awards Yuba Co. homeowner $16M in mortgage PHH suit

KCRA-

A Northern California jury awarded a homeowner $16 million in a lawsuit claiming a mortgage service company backtracked on his loan modification.

Phill Linza ruffled through a stack of records and letters from his mortgage servicing company that he has been collecting for the past several years.

“This is about a third of all the paperwork that I have,” Linza said.

He applied for a home loan modification when he hit hard times during the recession and was granted one by PHH Mortgage Corp.

[KCRA]

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Dow Family v. PHH Morgage | Wisconsin Supreme Court – the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court — MERS

Dow Family v. PHH Morgage | Wisconsin Supreme Court – the issue of whether PHH has the necessary documents to enforce the note in question was not appealed and must be determined by the circuit court — MERS

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP221

COMPLETE TITLE:
Dow Family, LLC,
Plaintiff-Appellant-Petitioner,

v.

PHH Mortgage Corporation,
Defendant-Respondent,

U.S. Bank, N.A.,
Defendant.

Excerpt:
¶49 SHIRLEY S. ABRAHAMSON, C.J. (concurring) This is a
mortgage foreclosure case, one of many in Wisconsin and across
the country.1 PHH Mortgage Corporation, which claims to be
assignee of the note and the mortgage in the instant case, has
been a party in over 2,300 cases filed in the Wisconsin circuit
courts, with many cases still open. PHH, and by extension the
Mortgage Electronic Recording System (MERS), upon which it
relies, represent the modern mortgage system, which has become
the subject of frequent litigation in the Great Recession,
during which many homeowners have lost the American dream——
private home ownership.

[...]

¶58 The doctrine of equitable assignment is a common-law
principle that “a transfer of an obligation secured by a
mortgage on property also constitutes a transfer of the
mortgage.”12 The idea of equitable assignment is that a mortgage
has no significance without reference to the note it secures.

¶59 Although the majority opinion concludes “that the
doctrine of equitable assignment is alive and well in
Wisconsin”13 “as evidenced by established case law,”14 its
proffered case law does not support its conclusion.

¶60 The majority opinion cites no Wisconsin precedent
explaining or applying the doctrine of equitable assignment in a
case involving real estate in which the note and mortgage were
held by two different persons. See majority op., ¶¶24-28. The
Wisconsin cases upon which the majority relies are not analogous
to the instant case.

[...]

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re: WAMU | Here is the Confidential 112 page Purchase & Assumption Agreement Between FDIC, Chase

re: WAMU | Here is the Confidential 112 page Purchase & Assumption Agreement Between FDIC, Chase

WE NEED A SIGNED VERSION IF ANYONE CAN HELP!!


Division of Resolutions and Receiverships
Institution Numer: 10015
Insti tution Location: Henderson, NV

Washington Mutual Bank
Closing Book
Date of Closing: September 25, 2008

Confidential Information Confidential Information

Transaction Recap
Washington Mutual Bank
Henderson, NV

In all the transactions offered by the FDIC, the Whole Bank Purchase and Assumption Agreement will be tailored to the winning bid. In all transactions, all assets are purchased by the acquirer and the preferred stock is excluded from the transaction. The legal documents will be the governing documents for this transaction.

The FDIC is offering five alternative transaction structures:
1. All liabilities are assumed except the preferred stock.
2. All liabilities are assumed, except the preferred stock and the subordinated debt.
3. All liabilities are assumed except the preferred stock, the subordinated debt and the senior debt.
4. All deposits and secured liabilities are assumed by the acquirer.
5. All insured deposits and secured liabilities are assumed.

The bid for alternatives 1, 2, or 3 must be at least the FDIC’s administrative costs
of the closing equal to $ (amount to be provided) .

[...]

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David J. Reiss | Armed, Unarmed or Harmed by Knowledge? A Comment on the FHA’s Housing Counseling Pilot Program

David J. Reiss | Armed, Unarmed or Harmed by Knowledge? A Comment on the FHA’s Housing Counseling Pilot Program

Armed, Unarmed or Harmed by Knowledge? A Comment on the FHA’s Housing Counseling Pilot Program

David J. Reiss, Brooklyn Law School

Abstract

The FHA has requested input on its Homeowners Armed with Knowledge (HAWK) for New Homebuyers pilot program. This comment letter argues that housing counseling is not a proven solution to the problem it is meant to solve, excessive defaults by FHA borrowers. HAWK is a traditional housing counseling program but the scholarly literature casts into doubt the efficacy of such programs. It would be better to take time to research which counseling strategies, if any, are proven to be effective. This is true for the FHA but also for other government agencies, such as the Consumer Financial Protection Bureau, that have devoted significant resources to unproven financial counseling programs.

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Housing Ponzi Scheme Losses: American Homeowners Battling Wall Street

Housing Ponzi Scheme Losses: American Homeowners Battling Wall Street

Relief for Homeowners?

Will the BlackRock/PIMCO suit help homeowners? Not directly. But it will get some big guns on the scene, with the ability to do all sorts of discovery, and the staff to deal with the results.

Fraud is grounds for rescission, restitution and punitive damages. The homeowners may not have been parties to the pooling and servicing agreements governing the investor trusts, but if the whole business model is proven to be fraudulent, they could still make a case for damages.


Global Research-

For years, homeowners have been battling Wall Street in an attempt to recover some portion of their massive losses from the housing Ponzi scheme. But progress has been slow, as they have been outgunned and out-spent by the banking titans.

In June, however, the banks may have met their match, as some equally powerful titans strode onto the stage. Investors led by BlackRock, the world’s largest asset manager, and PIMCO, the world’s largest bond-fund manager, have sued some of the world’s largest banks for breach of fiduciary duty as trustees of their investment funds. The investors are seeking damages for losses surpassing $250 billion. That is the equivalent of one million homeowners with $250,000 in damages suing at one time.

The defendants are the so-called trust banks that oversee payments and enforce terms on more than $2 trillion in residential mortgage securities. They include units of Deutsche Bank AG, U.S. Bank, Wells Fargo, Citigroup, HSBC Holdings PLC, and Bank of New York Mellon Corp. Six nearly identical complaints charge the trust banks with breach of their duty to force lenders and sponsors of the mortgage-backed securities to repurchase defective loans.

[GLOBAL RESEARCH]

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Merritt v. Countrywide Financial Corp. || “….district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration. ….”

Merritt v. Countrywide Financial Corp. || “….district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration. ….”

Merritt v. Countrywide Financial Corp.

Docket: 09-17678 Opinion Date: July 16, 2014
Judge: Berzon
Areas of Law: Banking, Real Estate & Property Law

Plaintiffs filed suit against Countrywide and others involved in their residential mortgage, alleging violations of numerous federal statutes. The district court dismissed the claims with prejudice and plaintiffs appealed. The court held that plaintiffs can state a claim for rescission under the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., without pleading that they have tendered, or that they have the ability to tender, the value of their loan; only at the summary judgment stage may a court order the statutory sequence altered and require tender before rescission – and then only on a case-by-case basis; and, therefore, the court reversed the district court’s dismissal of plaintiffs’ rescission claim and remanded for further proceedings. The court held that, although the limitations period in the Real Estate Settlement Practices Act (RESPA), 12 U.S.C. 2614, ordinarily runs from the date of the alleged RESPA violation, the doctrine of equitable tolling may, in the appropriate circumstances, suspend the limitations period until the borrower discovers or had reasonable opportunity to discover the violation; just as for TILA claims, district courts may evaluate RESPA claims case-by-case; and, therefore, in this case, the court vacated the dismissal of plaintiffs’ Section 8 of RESPA claims on limitations grounds and remanded for reconsideration.

http://j.st/ZSzM View Case
View Case On: Justia  Google Scholar

More…

Courthouse News-

A California couple did not have to show that they could pay back a home-equity loan before legally challenging an allegedly predatory Countrywide mortgage, the 9th Circuit ruled Wednesday.
     After the lender refused to let them rescind a more-than $700,000 home loan and home equity line of credit, David and Salma Merritt sued Countrywide Financial Corp under the Truth in Lending Act (TILA) in 2009
     The Merritts claimed that their Countrywide agent had lied to them in 2006 about the details of their loan, promising a relatively low monthly payment but then jacking it up nearly threefold days before closing. They said that the agent also had failed to inform them that the final $4,400 monthly mortgage payment for their Sunnyvale home was based on “teaser rate,” and that their payments would rise even higher in the coming years.
     Countrywide’s agent, the home’s seller and an appraiser also all faced allegations of having conspired to inflate the value of the home in violation of the Real Estate Settlement Practices Act (RESPA). The couple further argued that the agent had failed to provide proper loan documentation, and that the home’s owner had lied about being the “selling agent.”

[COURTHOUSE NEWS]

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Appellants initial brief in Dorta v Wilmington | mortgage unenforceable under the five year statute of limitations applicable to [a]n action to foreclose a mortgage set forth in section 95.11(2)(c) of the Florida Statutes

Appellants initial brief in Dorta v Wilmington | mortgage unenforceable under the five year statute of limitations applicable to [a]n action to foreclose a mortgage set forth in section 95.11(2)(c) of the Florida Statutes

United States Court of Appeals
for the
Eleventh Circuit

______________________
MARLENE DORTA,
Appellant,

v.

WILMINGTON TRUST NATIONAL ASSOCIATION, as successor trustee to
CITIBANK NATIONAL ASSOCATION, AS TRUSTEE FOR BNC
MORTGAGE LOAN TRUST 2007-3, Appellee.
________________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT OF
THE MIDDLE DISTRICT OF FLORIDA

MARLENE DORTA’S INITIAL BRIEF
__________________________________________________________________

PRELIMINARY STATEMENT

This is an appeal from a final order entered by the Hon. Wm. Terrell Hodges, Senior Judge, dismissing an amended complaint filed by Appellant, Marlene Dorta, against Appellee, Wilmington Trust National Association (Wilmington), which is the successor trustee to Citibank National Association (Citi) as the trustee for BNC Mortgage Loan Trust 2007-3. The case was originally filed in state circuit court in Marion County, Florida, but was subsequently removed by the named defendant in the original complaint, Citi, on the basis of diversity of citizenship. The operative complaint for the purposes of this appeal (the Amended Complaint) sought a final judgment declaring a mortgage held by Wilmington (the Mortgage), and encumbering real estate owned in fee simple by Dorta, to be unenforceable under the five year statute of limitations applicable to [a]n action to foreclose a mortgage set forth in section 95.11(2)(c) of the Florida Statutes.

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JPMorgan pulls back from mortgage lending on foreclosure worries

JPMorgan pulls back from mortgage lending on foreclosure worries

Pulling away from sub-prime lending…the same lending that got these idiots into trouble in the first place and our asses rescuing them every-time. Folks, this is a good thing!


REUTERS-

JPMorgan Chase & Co, the second-largest U.S. mortgage lender, is backing away from making home loans to less creditworthy borrowers after losing faith in its ability to recover much money from foreclosing on homes, even with government guarantees.

The shift reflects a change in the way JPMorgan runs its mortgage business: while it used to regard collateral and U.S. government lending programs as key backstops to most of its loans, it now pays closer attention to the credit quality of borrowers. The bank wants to reduce the chances of having to foreclose on a loan, because it’s bad business.

“The cost to take a customer through the foreclosure process is just astronomical now,” Kevin Watters, chief executive of JPMorgan Chase’s residential mortgage banking business in New York, told Reuters in an interview.

[REUTERS]

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CFPB Proposal Would Give Consumers the Opportunity to Publicly Voice Complaints About Financial Companies

CFPB Proposal Would Give Consumers the Opportunity to Publicly Voice Complaints About Financial Companies

Consumers Could Opt-In to Share Complaint Narrative in CFPB’s Public Database

WASHINGTON, D.C. — Today, the Consumer Financial Protection Bureau (CFPB) is proposing a new policy that would empower consumers to publicly voice their complaints about consumer financial products and services. When consumers submit a complaint to the CFPB, they would have the option to share their account of what happened in the CFPB’s public-facing Consumer Complaint Database. Publishing consumer narratives would provide important context to the complaint, help the public to detect specific trends in the market, aid consumer decision-making, and drive improved consumer service.

“The consumer experience shared in the narrative is the heart and soul of the complaint,” said CFPB Director Richard Cordray. “By publicly voicing their complaint, consumers can stand up for themselves and others who have experienced the same problem. There is power in their stories, and that power can be put in service to strengthen the foundation for consumers, responsible providers, and our economy as a whole.”

A copy of the proposed policy can be found at: http://files.consumerfinance.gov/f/201407_cfpb_proposed-policy_consumer-complaint-database.pdf

The CFPB began accepting complaints as soon as it opened its doors three years ago in July 2011. It currently accepts complaints on many consumer financial products, including credit cards, mortgages, bank accounts, private student loans, vehicle and other consumer loans, credit reporting, money transfers, debt collection, and payday loans.

When consumers submit a complaint to the Bureau, they fill in information such as who they are, who the complaint is against, and when it occurred. They are also given a text box to describe what happened and can attach documents to the complaint. The Bureau forwards the complaint to the company, allows the company to respond, gives the consumer a tracking number, and keeps the consumer updated on its status. To date, the Bureau has handled more than 400,000 complaints.

The CFPB’s Consumer Complaint Database is the nation’s largest public collection of consumer financial complaints. It includes basic, anonymous, individual-level information about the complaints received, including the date of submission, the consumer’s zip code, the relevant company, the product type, the issue the consumer is complaining about, and the company’s response.

Adding Narratives to the Consumer Complaint Database

Today, the Bureau is proposing to expand the database to include the consumer’s narrative description of what happened. In many ways, the narratives are the most insightful part of a complaint. They provide a first-hand account of the consumer’s experience and the problem they would like resolved. By giving consumers an option to publicly share their stories, the CFPB would greatly enhance the utility of the database, a platform designed to provide consumers with valuable information needed to make better financial choices for themselves and their families. The benefits of sharing the narratives include:

  • Providing context to the complaint: While the current database captures the basics of a consumer’s complaint, the amount of context provided is limited. Complaints are grouped into dozens of high-level categories such as “billing disputes,” “transaction issues,” or “advertising and marketing.” Including the consumer’s narrative would increase the level of detail available to consumers, consumer groups, and companies in the market. For example, providing the complaint narratives within the mortgage category of “loan modification, collection, foreclosure,” would help determine if the consumer is being charged extra fees, the servicer has lost paperwork, or any number of other specific problems. Describing the circumstances can provide vital information about why the consumer believes they were harmed, and the impact that harm has had on the consumer.
  • Spotlighting specific trends: Not only does the narrative provide context to the individual complaint, it provides context to the marketplace. Narratives allow the public to detect trends across the consumer experience and pinpoint problems. With narratives, it is possible to see if a specific issue is localized in a particular geographic area or with a specific company, or if it’s a practice used by companies across the product market. For example, reviewers may see that a number of consumers are starting to receive a $10 mystery charge from a particular company. Or they may see that a city is experiencing a rise in complaints about specific problems with mortgage loan modification denials. Or they may see that more and more companies are failing to meet their student loan servicing obligations. Without the narrative, the public cannot fully connect the dots.
  • Helping consumers make informed decisions: Consumers often go online to research products before they make a decision to purchase. Including the details of a complaint would help inform consumers who are considering a particular product or service. Databases with narratives, such as the Consumer Product Safety Commission’s SaferProducts.gov or the National Highway Traffic Safety Administration’s SaferCar.gov, have helped inform consumers about a range of products from cribs to cars. The CFPB aims to empower consumers with the same kind of information. Reviewers could use the narrative to decide for themselves if the problems experienced by other consumers would stop them from purchasing the same product or service.
  • Spurring competition based on consumer satisfaction: With these powerful stories readily available to the public, companies may have additional incentives to address potential shortcomings in their businesses that could have negative impacts on consumers. In the end, the narratives may encourage companies to improve the overall quality of their goods and services and more vigorously compete over good customer service, all of which has the potential to improve the functioning, transparency, and efficiency of the market.

Safeguards for Publishing Process

The CFPB’s proposed policy recognizes the importance of protecting consumers’ private information, ensuring the informed consent of any consumer who participates, and providing companies with an opportunity to respond. Today’s proposal establishes a number of important safeguards for a clear, fair, and transparent process, including:

  • Consumers must opt-in: The CFPB would not publish the complaint narrative unless the consumer provides informed consent. This means that when consumers submit a complaint through consumerfinance.gov, they would have to affirmatively check a consent box to give the Bureau permission to publish their narrative. At least initially, only narratives submitted online would be available for the opt-in.
  • No personal information will be shared: The Bureau would take all reasonable steps to remove personal information from the complaint to minimize the risk of someone being able to identify the consumer. This means complaints would be scrubbed of information such as names, telephone numbers, account numbers, Social Security numbers, and other direct identifiers.
  • Companies can publish their response: Companies would be given the opportunity to post a written response that would appear next to the consumer’s story. In most cases, this response would appear at the same time as the consumer’s narrative so that reviewers can see both sides concurrently. This response would also be scrubbed of personal information.
  • If a consumer decides at any time that he or she would like to withdraw consent to publish their narrative in the Consumer Complaint Database, he or she will have the ability to do so. The Bureau would honor this request as soon as possible and no later than three business days.

Today’s proposal builds on the safeguards the CFPB’s database already has in place. The CFPB confirms the commercial relationship between the consumer and company. Complaints are listed in the database only after the company responds to the complaint or after it has had the complaint for 15 days, whichever comes first.

Three Years of Consumer Response

The Dodd-Frank Wall Street Reform and Consumer Protection Act, which created the CFPB, established the handling of consumer complaints as an integral part of the CFPB’s work. Today the CFPB released a snapshot overview of complaints handled since the Bureau opened on July 21, 2011 that includes aggregate data and analysis. The snapshot is available at: http://files.consumerfinance.gov/f/201407_cfpb_report_consumer-complaint-snapshot.pdf

This week, the CFPB is also releasing a series of videos of consumers who have been helped by the CFPB, some of them after submitting complaints. The “Everyone Has a Story” videos show real consumers who have run into trouble along their financial journey and have been helped by the CFPB. These stories will be available at: www.consumerfinance.gov/yourstory

###

Source: http://www.consumerfinance.gov

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ATTORNEY GENERAL CHARGES COLORADO’S LARGEST FORECLOSURE LAW FIRMS, The Castle Law Group & Aronowitz & Mecklenburg WITH FRAUD

ATTORNEY GENERAL CHARGES COLORADO’S LARGEST FORECLOSURE LAW FIRMS, The Castle Law Group & Aronowitz & Mecklenburg WITH FRAUD

DENVER — Colorado Attorney General John Suthers today announced the filing of civil law enforcement actions against the two largest foreclosure law firms in Colorado.  In separate filings, the Attorney General’s Consumer Protection Section charged The Castle Law Group, its principals and affiliated foreclosure-related businesses, as well as Aronowitz & Mecklenburg, its principals and affiliated foreclosure-related businesses with violating the Colorado Consumer Protection Act, the Colorado Antitrust Act, and the Colorado Fair Debt Collection Practices Act. The Attorney General filed a simultaneous proposed Final Consent Judgment settling the case against the Aronowitz defendants.

“These lawsuits come at the end of a lengthy and exhaustive investigation into allegedly fraudulent billing practices by these firms that inflated foreclosure costs,” said Attorney General John Suthers. “These inflated costs were passed on to homeowners trying to save their homes from foreclosure, successful bidders for properties at foreclosure sales, and to investors and taxpayers. The facts uncovered by our investigation are very disturbing and, frankly, reflect poorly on the legal profession.”

The complaints, filed in Denver District Court, allege that these law firms, and their principals, conspired to charge fraudulent and inflated costs for posting of two statutorily-mandated notices on the homes of borrower’s facing foreclosure, and used affiliated companies to run up the costs of title products used in the foreclosures. The complaints also allege that these firms improperly and deceptively tacked on additional charges as “costs” for tasks already compensated by the maximum allowable fee paid to the law firm by the investor.

In the proposed Final Consent Judgment with the Aronowitz defendants, the law firm and its principals agree that, with the exception of some title business that they must operate at competitive market rates, to have no direct or indirect ownership interest in any law firm or other business engaged in foreclosure-related work in the State of Colorado for a period of nine years, and to pay the state $10 million in unjust enrichment, civil penalties, and the state’s costs and attorney fees. An additional $3 million in civil penalties is to be suspended pending compliance with the Final Consent Judgment. The court must approve that settlement before it becomes effective.

Investigations by the Colorado Attorney General’s Office of other Colorado foreclosure law firms and related businesses are ongoing.

#  #  #

.

Source: http://www.coloradoattorneygeneral.gov

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BofA pays AIG $650 million to settle mortgage disputes

BofA pays AIG $650 million to settle mortgage disputes

REUTERS-

Bank of America (BAC.N) agreed to pay American International Group Inc (AIG.N) $650 million to settle long-running legal disputes over defective mortgage-backed securities sold in the run-up to the financial crisis.

The deal, which the parties announced early Wednesday, ends securities fraud litigation that the insurer brought against Bank of America. It also removes the biggest obstacle to the bank’s $8.5 billion settlement with investors in mortgage securities issued by Countrywide Financial, the subprime lender Bank of America acquired in 2008.

AIG will file notices dismissing its litigation accusing the bank of causing billions of dollars in losses by selling it shoddy mortgage securities. The litigation is pending in New York and California.

[REUTERS]

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Bank of America offering $13 billion to resolve probe

Bank of America offering $13 billion to resolve probe

Just close these cartels down now…ALL. OF. THEM.

 

CNBC-

Bank of America has offered $13 billion to settle a probe into mortgage securities sold by the bank, the Wall Street Journal reported, citing people familiar with the matter.

The bank met U.S. Justice Department representatives on Tuesday, but no progress was made toward a final deal, the paper reported.

Bank of America had previously offered about $12 billion to settle the matter, including a portion to help struggling homeowners, while the Justice Department had suggested a $17 billion settlement, sources told Reuters earlier this month.

[CNBC]

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CFPB Targets Georgia Law Firm Frederick J. Hanna & Associates

CFPB Targets Georgia Law Firm Frederick J. Hanna & Associates

DSNEWS-

The Consumer Financial Protection Bureau (CFPB) continued its aggressive enforcement of consumer protection laws on Monday by filing a lawsuit against Georgia based debt collection law firm Frederick J. Hanna & Associates, for violations of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Fair Debt Collections Practices Act.

The Bureau, which refers to the firm as a “debt collection lawsuit mill” leveled accusations that the firm has churned out hundreds of thousands of lawsuits based on unsubstantiated evidence where, in some cases, the debt may not actually be owed.

“The Hanna firm relies on deception and faulty evidence to drag consumers to court and collect millions,” said CFPB Director Richard Cordray. “We believe they are taking advantage of consumers’ lack of legal expertise to intimidate them into paying debts they may not even owe. Today we are taking action to put a stop to these illegal debt collection practices.”

 read more… [DSNEWS]


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LAFRANCE vs U.S. BANK | FL 4th DCA – The undated endorsement fails to prove that US Bank was the owner or holder of the note at the time of filing the complaint. Further, none of the affidavits filed in support of summary judgment specifically assert that US Bank obtained possession of the endorsed note prior to the date of the filing the complaint.

LAFRANCE vs U.S. BANK | FL 4th DCA – The undated endorsement fails to prove that US Bank was the owner or holder of the note at the time of filing the complaint. Further, none of the affidavits filed in support of summary judgment specifically assert that US Bank obtained possession of the endorsed note prior to the date of the filing the complaint.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014

HENRI C. LAFRANCE
and MARIE LAFRANCE,
Appellants,

v.

US BANK NATIONAL ASSOCIATION, as trustee for CSFB Home Equity Pass-Through Certificates Series 2006-08,
Appellee.

No. 4D13-102
[July 9, 2014]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Roger B. Colton, Senior Judge, Judge; L.T. Case No. 50-2009-CA012110AW.

S. Tracy Long of the Law Offices of S. Tracy Long, P.A., Boca Raton, for appellants.

Jessica Zagier Wallace of Carlton Fields, P.A., Miami, and Michael K. Winston, Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
PER CURIAM.

Appellants appeal a final summary judgment of mortgage foreclosure in favor of appellee. Because appellee failed to rebut appellants’ affirmative defense of lack of standing, we reverse.

Henri C. LaFrance and Marie LaFrance (“appellants”) executed a promissory note and mortgage on the subject property with lender Accredited Home Lenders, Inc. (“AHL”) in 2006. In 2009, US Bank National Association, as Trustee for CSFB Home Equity Pass-Through Certificates Series 2006-8 (“US Bank”), filed a mortgage foreclosure complaint against appellants as “the holder” of the note and mortgage. A copy of the unendorsed note was attached to the complaint. Appellants filed an answer with affirmative defenses, including that US Bank lacked standing.

US Bank moved for summary judgment. In support thereof, it filed
affidavits of representatives and records from two loan servicing providers.
Over three-and-a-half years after filing its complaint, US Bank also filed
the original note with an allonge bearing an undated endorsement in blank
signed by an “Assistant Secretary” of AHL, the original lender. The trial
court granted final summary judgment in favor of US Bank.
“The standard of review of an order granting summary judgment is de
novo.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172
(Fla. 4th DCA 2012). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

Appellants assert that the trial court erred in entering summary
judgment because there was a genuine issue of material fact as to whether
US Bank had standing to file their complaint. US Bank responds that the
“authenticated” business records of the servicing providers demonstrate
that it had standing.

“A crucial element in any mortgage foreclosure proceeding is that the
party seeking foreclosure must demonstrate that it has standing to
foreclose.” McLean, 79 So. 3d at 173. “Whether a party is the proper party
with standing to bring an action is a question of law to be reviewed de
novo.” Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So. 3d 14,
16 (Fla. 4th DCA 2012) (citation omitted). Standing to foreclose is
determined at the time the lawsuit is filed and can be demonstrated by the
filing of an assignment or the original note with a special endorsement in
favor of the plaintiff or a blank endorsement. McLean, 79 So. 3d at 173.

A “plaintiff’s lack of standing at the inception of the case is not a defect
that may be cured by the acquisition of standing after the case is filed”
and cannot be established “retroactively by acquiring standing to file a
lawsuit after the fact.” Id. (citation omitted).

Here, over three-and-a-half years after filing its complaint with a
photocopy of the unendorsed note, US Bank filed the original note
containing an undated endorsement in blank. The undated endorsement
fails to prove that US Bank was the owner or holder of the note at the time
of filing the complaint. Further, none of the affidavits filed in support of
summary judgment specifically assert that US Bank obtained possession
of the endorsed note prior to the date of the filing the complaint. Finally,
the loan servicing records provided by the affiants, without any
explanation of their significance, likewise failed to affirmatively prove that

US Bank was the owner and holder of the note prior to the filing of the complaint.

Because the affidavits and records filed in support of summary judgment do not support a finding that US Bank was the holder of the note with a proper endorsement in blank at the time the complaint was filed, a genuine issue of material fact exists as to whether US Bank had standing at the time of suit. On the record presented, it is possible that US Bank did not obtain standing to foreclose until after it initiated the lawsuit. Thus, the trial court erred in entering the final summary judgment of foreclosure in favor of US Bank. McLean, 79 So. 3d at 173; see also Zimmerman v. JPMorgan Chase Bank, Nat’l Assoc., 134 So. 3d 501, 502 (Fla. 4th DCA 2014); Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 254 (Fla. 2d DCA 2012). We therefore reverse the final judgment and remand for further proceedings.

Reversed and remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.

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First Mortgage Co. v. Dina, 2014 IL App (2d) | We conclude that a material issue of fact existed concerning FMCI’s status under the License Act and that this precluded a proper grant of summary judgment.

First Mortgage Co. v. Dina, 2014 IL App (2d) | We conclude that a material issue of fact existed concerning FMCI’s status under the License Act and that this precluded a proper grant of summary judgment.

Illinois Official Reports
Appellate Court

First Mortgage Co. v. Dina, 2014 IL App (2d) 130567
Appellate Court

Caption
FIRST MORTGAGE COMPANY, LLC, Plaintiff-Appellee, v.
DANIEL DINA and GRATZIELA DINA, Defendants-Appellants
(Unknown Owners and Nonrecord Claimants, Defendants).
District & No. Second District

Docket No. 2-13-0567

Filed
Modified upon
denial of rehearing
March 31, 2014
May 22, 2014

Held
(Note: This syllabus
constitutes no part of the
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)

The summary judgment for foreclosure entered for plaintiff mortgagee
and the order confirming the sale of defendants’ property were
vacated where plaintiff was not a licensed lender under the Residential
Mortgage License Act, and the mortgage was therefore unenforceable
and void as a matter of public policy.

Decision Under
Review

Appeal from the Circuit Court of Lake County, No. 10-CH-2877; the
Hon. Luis A. Berrones, Judge, presiding.

Judgment Vacated and remanded.

EXCERPT:

¶ 13 A court should grant summary judgment only “when the pleadings, depositions and
affidavits on file demonstrate that no genuine issue of material fact exists, and that the
moving party is entitled to judgment as a matter of law.” Forest Preserve District v. First
National Bank of Franklin Park, 2011 IL 110759, ¶ 62. Review of an order granting summary
judgment is de novo. Forest Preserve District, 2011 IL 110759, ¶ 62. Here, defendants are
correct in their License Act claim; that conclusion is determinative, so we need not consider
defendants’ other claims. A question of fact exists as to the mortgage lender’s License Act
status. Further, that fact is material. Although the issue of enforceability of a mortgage made
by an entity lacking a needed license has not arisen in Illinois, Illinois law relating to other
licenses and sister-state law concerning statutes analogous to the License Act make clear that
a License Act violation results in an unenforceable contract. Finally, because the contract
would be void as a matter of public policy, any technical flaw in the way defendants raised
the defense did not result in forfeiture of the defense.

[...]

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Why Do Banksters Get Help but Not Homeowners?

Why Do Banksters Get Help but Not Homeowners?

Truth-OUT

It’s time to start helping the people, and stop helping Wall Street.

According to an agreement announced earlier today, big bank Citigroup will pay $7 billion to settle a Department of Justice investigation into that bank’s involvement with risky subprime mortgages.

The agreement stems from Citigroup’s role in the trading of subprime mortgage securities, which helped to cause the 2007 financial collapse and Great Recession.

Of the $7 billion total settlement, $4 billion will be in the form of a civil monetary payment to the Department of Justice, $500 million will go to state attorney’s general and the Federal Deposit Insurance Corporation, and an additional $2.5 billion will go towards “consumer relief.”

But make no mistake about it. This agreement is another win for the big banks.

[TRUTH-OUT]

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