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Banks Seek Exit from Robo-Signing Enforcement Order

Banks Seek Exit from Robo-Signing Enforcement Order

Now, why would anyone want to exit and order restricting them from committing fraud? AND why would the OCC even think about letting them off the order!

 

American Banker-

At least two mortgage servicers say they are close to being released from an OCC enforcement order that required 14 of the nation’s largest bank servicers to fix flaws in their foreclosure reviews. But the OCC says it has set no timetable for freeing any of the banks from the 2011 order.

[AMERICAN BANKER] subscription needed

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Glitches, complaints plague Ocwen, other mortgage servicers

Glitches, complaints plague Ocwen, other mortgage servicers

As long as the government continues to kiss their asses, these abuses are never going away. Not to mention the government officials planning their exit strategies to go work for those they investigate.


LA Times-

Tyesha Hansborough and her husband, Christley Paton, had paid the property insurance on their Inglewood home along with their mortgage, putting the money in escrow like most homeowners.

Trouble is, the couple said, their mortgage servicer — Ocwen Financial Corp. — didn’t pass that money on to the insurance company for this year’s premiums.

They battled unsuccessfully for months to reinstate the lapsed policy without additional costs, the couple said. Ocwen instead imposed so-called force-placed insurance — expensive coverage that protects the lender’s interest but doesn’t shield the homeowners from loss.

“There have been so many home-invasion robberies around here, and if that were to happen to us, we wouldn’t be covered,” Hansborough said, prompting Patton to say: “I feel like we were robbed — by Ocwen.”

[LA TIMES]

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Delaware County, PA Case Gets Remanded Back to State Court

Delaware County, PA Case Gets Remanded Back to State Court

Clouded Titles Blog-

Now that I’ve gotten through the disclaimer … time to announce that a related Pennsylvania case has just been remanded back to state court in that state in federal cause number 2:13-CV-6517-CDJ. The case is Delaware County, Pennsylvania Recorder of Deeds v. MERSCORP, Inc. et al. The ruling just came out and U. S. District Court Judge Hon. C. Darnell Jones denied the collective MERSCORP defendants list motion to dismiss this case. There are 106 documents in the PACER case file in case anyone wants to have a gander at the goings-on.

Like most cases that county recorders are filing, they think that MERSCORP (in whatever form name they are litigating) owes them money. With the ruling against MERS and MERSCORP by Judge Curtis Joyner (E.D. PA), the Court determined that MERSCORP and MERS violated Pennsylvania recording statutes and that BOTH the parent and child (MERSCORP Holdings, Inc. and MERS) acted as an agent for the principals (members) they set up an electronic registry for, to facilitate eNote transfers behind “the curtain” where no one could determine who actually owns their promissory note at any given moment. Many counties across America seem to be losing these cases, except in Pennsylvania, where Joyner’s decision may actually add some teeth to individual county cases being brought against the two and its collective rank and file membership (whoever’s members they are in reality).

In a 10-page memorandum, Judge Jones cited this remand ruling as (for all intents and purposes) procedural. It appears that every time a county wants to join a defendant, MERS and MERSCORP and its members remove the case to federal court in a “procedural move” in an attempt to get an FRCP 12(b)(6) Motion to Dismiss. In this instance, that appears NOT to have worked for them.

[CLOUDED TITLES BLOG]

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Firm Fights U.S. Consumer Unit’s ‘Lawsuit Mill’ Litigation

Firm Fights U.S. Consumer Unit’s ‘Lawsuit Mill’ Litigation

Daily Report-

A Marietta lawyer sued by the U.S. Consumer Financial Protection Bureau for running what the agency calls a “lawsuit mill” for debt collectors wants a judge to dismiss the case as an unconstitutional ploy to federally regulate lawyers.

In a motion filed Friday to dismiss the suit, attorneys defending Frederick Hanna, his Marietta firm and three firm lawyers called the litigation “an unprecedented overreach” of federal authority which could have “a profound chilling effect” on access to the court system.

Hanna’s lawyers say the federal agency’s drive to permanently bar Hanna from filing collection actions against debtors violates a “centuries-old principle of deference to states in regulating the practice of law, as well as Congress’s express intent not to regulate how lawyers litigate cases in state courts.” Defense attorneys also say the consumer bureau’s efforts to punish Hanna and his staff “for acts performed within the scope of their representation of clients … is an overt obstruction of the fundamental right to petition courts for resolution of legal disputes under the First Amendment.”

[DAILY REPORT] subscription required

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COMPLAINT | COMMONWEALTH OF VIRGINIA vs. BARCLAYS CAPITAL INC. | VA AG HERRING BRINGS RECORD $1.15 BILLION LAWSUIT AGAINST BANKS FOR DEFRAUDING VIRGINIA TAXPAYERS

COMPLAINT | COMMONWEALTH OF VIRGINIA vs. BARCLAYS CAPITAL INC. | VA AG HERRING BRINGS RECORD $1.15 BILLION LAWSUIT AGAINST BANKS FOR DEFRAUDING VIRGINIA TAXPAYERS

State Seal
Commonwealth of Virginia
Office of the Attorney General

name and titleaddress

 

For media inquiries only, contact: 
Michael Kelly, Director of Communications
Phone:
Email: mkelly@oag.state.va.us

 

HERRING BRINGS RECORD $1.15 BILLION LAWSUIT AGAINST BANKS FOR DEFRAUDING VIRGINIA TAXPAYERS

 

~ Largest suit ever brought under Virginia Fraud Against Taxpayers Act seeks accountability for banks that fraudulently sold mortgage-backed securities to the Virginia Retirement System ~

RICHMOND (September 16, 2014)–Attorney General Mark R. Herring today announced a historic lawsuit against some of the largest commercial banks in the world for fraud committed against Virginia taxpayers during the height of the real estate bubble. A lawsuit unsealed today in Richmond Circuit Court seeks $1.15 billion in damages against thirteen banks that are each accused of fraudulently misleading the Virginia Retirement System (VRS) during the sale of residential mortgage-backed securities (RMBS) to the state retirement fund. The VRS was entitled to accurate information about the underlying mortgages when making decisions on how to invest taxpayer money and contributions by employees. Instead, these large banks purposefully included high-risk mortgages in securities and fraudulently misrepresented the quality of those loans to rating agencies and large investors like VRS. The securities were purchased starting around 2004, and before 2010, Virginia was forced to sell the vast majority of these toxic securities built on junk mortgages and lost $383 million.

In 2013, VRS was funded approximately 66% by Virginia taxpayers and 33% by contributions from state employees, with nearly 600,000 members including 145,000 teachers, 105,000 employees of city and county governments, and 78,000 state employees, as well as state troopers, local law enforcement, and court employees.

This is a rare state-level action brought by an Attorney General to hold banks accountable specifically for damages their fraud and recklessness caused state taxpayers through a public retirement system. It is the largest financial fraud action ever brought by the Commonwealth of Virginia and is the largest case ever brought under the Virginia Fraud Against Taxpayers Act. The Commonwealth will also seek civil penalties against each bank in the amount of $5,500-$11,000 for each violation.

“The message today is clear. It doesn’t matter if you’re a small-time con artist or a multi-billion dollar Wall Street bank. If you try to rip off or defraud Virginia consumers or Virginia taxpayers, you will be caught and you will be held responsible,” said Attorney General Herring. “Every Virginian was harmed by the financial crisis. Homes were lost, retirement accounts were devastated, small businesses saw their credit dry up almost overnight, and state and federal budget cuts hurt vulnerable Virginians. It will take many more years to recover the economic strength and stability we lost, but I will not allow Virginians to be left holding the bag for the reckless, fraudulent business practices of a few big banks who thought they were above the law. These banks lied to Virginia, and taxpayers and state employees lost hundreds of millions of dollars as a result.”

Each bank is alleged to have bundled risky residential mortgages into securities which were then sold to VRS in various quantities. The named banks are:

  • Barclays Capital Inc.
  • Citigroup Global Markets Inc.
  • Countrywide Securities Corporation
  • Credit Suisse Securities (USA) LLC
  • Deutsche Bank Securities Inc.
  • Goldman, Sachs & Co.
  • RBS Securities, Inc.
  • HSBC Securities (USA) Inc.
  • Morgan Stanley & Co. LLC
  • UBS Securities LLC
  • WAMU Capital Corp.
  • J.P. Morgan Securities LLC (and as current owner of Bear, Stearns & Co.)
  • Merrill Lynch, Pierce, Fenner & Smith Incorporated(and as current owner of Banc of America Securities LLC)

 

While the banks offered the securities to VRS as stable, solid investments, an analysis shows that nearly 40% of the 785,000 mortgages backing 220 securities purchased by Virginia’s retirement system were fraudulently misrepresented in a way that made them a significantly higher risk for default. These banks knew, or should have known, that claims they made about the quality of the mortgages were false, but they systematically disregarded and hid their own evaluations, and third-party evaluations, that revealed just how risky these securities were. The Commonwealth of Virginia suffered hundreds of millions in losses after receiving and relying on this false information.

 

The banks misrepresented the underlying mortgages in the following ways:

1.      Misrepresenting the loan-to-value ratio of mortgages– A higher loan-to-value ratio significantly raises the risk of default. Across all banks, it was claimed that only 23.4% of loans were for more than 80% of the value of the property, when in reality, it was 54%. Additionally, 15% of homes were underwater, with mortgages that exceeded the value of the home.
2.      Misrepresenting the owner occupancy rate of the homes–Borrowers are more likely to default on a home they do not occupy, such as a vacation home or rental property.
3.      Misrepresenting the percentage of homes with a second mortgage–This is a major risk factor for default because borrowers with second loans tend to have fewer assets relative to the amount they have mortgaged.

Hundreds of securities that were offered at AAA or similarly high ratings with a 0.00% mortgage delinquency rate were eventually downgraded significantly as delinquency rates of the mortgages skyrocketed, in some cases as high as 75%.

While the losses to the Virginia Retirement System are estimated at $383 million, the law allows Virginia to seek “treble damages,” or three times the actual damage, as compensation and to deter this kind of conduct. It is expected that money recovered as part of this suit will be returned to Virginia taxpayers and that damages suffered by VRS will be redressed.

The fraud was reported to the Commonwealth using a provision of the Virginia Fraud Against Taxpayers Act which incentivizes and allows whistleblowers to report fraud against Virginia taxpayers. After closely examining the evidence collected by the whistleblower and finding it to be accurate and convincing, Attorney General Herring is bringing the case on behalf of Virginia taxpayers. The whistleblower, a financial modeling and analysis firm called Integra REC, LLC, discovered the fraud using extremely sophisticated proprietary methods to match-up the RMBS purchased by VRS with the actual mortgages and properties they contained.

The case is being handled by Attorney General Herring’s Civil Litigation Division, including Deputy Attorney General Rhodes Ritenour, and Assistant Attorney General Peter E. Broadbent, III.

 

 

 # #

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DELAWARE COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al || ORDER THAT PLAINTIFF’S MOTION TO REMAND IS GRANTED AND THE ABOVE MATTER IS REMANDED TO THE COURT OF COMMON PLEAS, DELAWARE COUNTY FOR FURTHER PROCEEDINGS

DELAWARE COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al || ORDER THAT PLAINTIFF’S MOTION TO REMAND IS GRANTED AND THE ABOVE MATTER IS REMANDED TO THE COURT OF COMMON PLEAS, DELAWARE COUNTY FOR FURTHER PROCEEDINGS

DELAWARE COUNTY, PENNSYLVANIA, RECORDER OF DEEDS v. MERSCORP, INC. et al

Defendant: STATE FARM BANK FSB, JP MORGAN CHASE BANK, N.A., EVERHOME MORTGAGE COMPANY, HSBC FINANCE CORPORATION (“HSBC”), CREDIT SUISSE FINANCIAL CORPORATION, CITIMORTGAGE, INC., BANK OF AMERICA, N.A., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MERSCORP, INC., WELLS FARGO BANK, N.A., SOVEREIGN BANK and JOHN DOE DEFENDANTS, 1-100
Plaintiff: DELAWARE COUNTY, PENNSYLVANIA, RECORDER OF DEEDS
Case Number: 2:2013cv06517
Filed: November 8, 2013
Court: Pennsylvania Eastern District Court
Office: Philadelphia Office
County: Delaware
Presiding Judge: C. DARNELL JONES
Nature of Suit: All Other Real Property
Cause of Action: 28:1441
Jury Demanded By: None

Available Case Documents

The following documents for this case are available for you to view or download:
Date Filed # Document Text
September 15, 2014 105 Opinion or Order of the Court MEMORANDUM AND ORDER THAT PLAINTIFF’S MOTION TO REMAND IS GRANTED AND THE ABOVE MATTER IS REMANDED TO THE COURT OF COMMON PLEAS, DELAWARE COUNTY FOR FURTHER PROCEEDINGS; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/15/14. 9/15/14 ENTERED AND E-MAILED.(jl, )
September 15, 2014 106 Opinion or Order of the Court ORDER THAT PLAINTIFF’S MOTION TO REMAND IS GRANTED AND THE ABOVE MATTER IS REMANDED TO THE COURT OF COMMON PLEAS, DELAWARE COUNTY FOR FURTHER PROCEEDINGS. DEFENDANTS MOTION TO DISMISS AND MOTION TO DISMISS/DENY PLAINTIFF’S REQUEST FOR JOINDER ARE DENIED AS MOOT; ETC.. SIGNED BY HONORABLE C. DARNELL JONES, II ON 9/15/14. 9/15/14 ENTERED AND E-MAILED, LEGAL..(jl, )

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MAGLOIRE v. Bank of New York, Fla: Dist. Court of Appeals, 4th Dist. 2014 | A trial court lacks jurisdiction to hear a case once it has been dismissed

MAGLOIRE v. Bank of New York, Fla: Dist. Court of Appeals, 4th Dist. 2014 | A trial court lacks jurisdiction to hear a case once it has been dismissed

 

MORIN MAGLOIRE and GERMAIN JEAN CLAUDE, Appellants,
v.
THE BANK OF NEW YORK as Trustee for the certificate holders CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-23, Appellee.

No. 4D11-4540.
District Court of Appeal of Florida, Fourth District.
September 10, 2014.
S. Tracy Long of Law Offices of S. Tracy Long, P.A., Deerfield Beach (withdrawn as counsel after filing brief); Morin Magloire and Germain Jean-Clause, Lauderdale Lakes, pro se.

Michael P. Bruning of Connolly, Geaney, Ablitt & Willard, P.C., West Palm Beach, for appellee.

PER CURIAM.

The homeowners appeal the trial court’s order granting final summary judgment of foreclosure in favor of the bank. The homeowners argue that the trial court erred in granting the bank’s motion for summary judgment after the trial court previously dismissed the case for lack of prosecution. We agree.

On October 10, 2008, the bank filed a mortgage foreclosure complaint based on a mortgage and note executed by the homeowners in September of 2006. On October 15, 2008, the homeowners filed an answer to the complaint, in the form of a letter to the court, explaining that they had “experienced a serious hardships [sic] that have prevented [them] from making the mortgage payments on [their] primary residence.” Additionally, they stated that they were trying to work with the leader “to work out a re-instatement or re-payment plan.”

On November 19, 2009, the trial court filed a notice of intent to dismiss the bank’s complaint after there had been no record activity in the case since November 5, 2008. The trial court set a hearing on the issue, and the bank filed a statement asserting good cause as to why the action should remain pending.[1] Within its response, the bank stated that it was currently evaluating the homeowner’s loan to determine if the homeowners would qualify for a settlement offer, and asked the court to allow the case to remain open until the bank could complete negotiations with the homeowners. On December 16, 2009, the trial court entered a final order of dismissal of the bank’s complaint, because there was “no record activity > 1 yr (since 11/5/2008) and no good cause.”

On June 28, 2010, the bank filed a motion for summary judgment. Then, on November 9, 2011, a hearing was held on the bank’s motion for summary judgment. On the same date, the trial court entered a summary final judgment of foreclosure in favor of the bank. The homeowners appeal this order.

There were no transcripts provided of the motion for summary judgment hearing, and it is therefore unknown whether the homeowners raised the issue of the previous dismissal of the case and the trial court’s subsequent lack of jurisdiction over the case. However, “the issue of subject-matter jurisdiction . . . may be raised for the first time on appeal.” Rudel v. Rudel, 111 So. 3d 285, 291 (Fla. 4th DCA 2013).[2]

“Whether a court has subject matter jurisdiction is a question of law reviewed de novo.” Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005).

A trial court lacks jurisdiction to hear a case once it has been dismissed. See Gardner v. Nioso, 108 So. 3d 1122, 1123 (Fla. 1st DCA 2013) (“[B]y the trial court’s dismissal of the action against them, and the subsequent affirmance of that dismissal, the trial court no longer has jurisdiction over Appellees.”); Harrison v. La Placida Cmty. Ass’n, 665 So. 2d 1138, 1141 (Fla. 4th DCA 1996) (“Once [the defendat] was dismissed, the trial court no longer had jurisdiction over her.’); Ludovici v. McKiness, 545 So. 2d 335, 336 n.3 (Fla. 3d DCA 1989) (“A trial court lacks jurisdiction to vacate an order of dismissal without prejudice after the order becomes final. An exception to this finality is a Rule 1.540 motion. The trial court has jurisdiction to entertain a timely motion for rehearing or to revisit the cause on the court’s own initiative within the time allowed for a rehearing motion.”) (internal citations omitted); Derma Lift Salon, Inc v. Swanko, 419 So. 2d 1180, 1180-81 (Fla. 3d DCA 1982). (“The trial court’s order of dismissal entered May 11, 1982, albeit `without prejudice,’ was a final appealable order, subject to the further jurisdiction of the trial court only upon a timely filed motion for rehearing under Florida Rule of Civil Procedure 1.530.”) (internal citation omitted). Since there was no motion for rehearing or motion to vacate filed or ruled upon regarding the order of dismissal in the instant case, the trial court did not have jurisdiction to enter an order granting the bank’s subsequently-filed motion for summary judgment. Additionally, although the trial court’s final order of dismissal was entered “without prejudice to refile,” the bank never refiled the complaint prior to filing its motion for summary judgment.

The bank argues that the trial court’s order should be allowed to stand because it exercised its powers of “equitable jurisdiction” in granting the bank’s motion for summary judgment. However, we find the bank’s argument, basically that equitable jurisdiction can replace subject-matter jurisdiction, unconvincing. See Black’s Law Dictionary 18(c) (9th ed. 2009) (quoting William Q. de Funiak, Handbook of Modern Equity 38 (2d ed. 1956)) (“[T]he term equity jurisdiction does not refer to jurisdiction in the sense of the power conferred by the sovereign on the court over specified subject-matters or to jurisdiction over the res or the persons of the parties in a particular proceeding but refers rather to the merits. The want of equity jurisdiction does not mean that the court has no power to act but that it should not act, as on the ground, for example, that there is an adequate remedy at law.”) (emphasis added) (internal quotation marks omitted).

Therefore, we reverse the trial court’s order granting the bank’s motion for summary judgment and remand the case to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

GROSS, GERBER and CONNER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

[1] “[T]he action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.” Fla. R. Civ. P. 1.420(e) (emphasis added).

[2] The type of jurisdiction at issue in the instant case is that of subject-matter jurisdiction. See Bernard v. Rose, 68 So. 3d 946, 948 (Fla. 3d DCA 2011) (referring to the trial court’s jurisdiction over a case after a dismissal for lack of prosecution as that of subject-matter jurisdiction).

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What happens if there’s a conference on corporate crime and nobody hears about it? Did it happen? IT DID. . . The conference — Deterring Corporate Crime: Effective Principles for Corporate Enforcement

What happens if there’s a conference on corporate crime and nobody hears about it? Did it happen? IT DID. . . The conference — Deterring Corporate Crime: Effective Principles for Corporate Enforcement

Corporate Crime Reporter-

You had some of biggest names in the field.

You had your prosecutors — including Preet Bharara, Benjamin Lawsky, Andrew Ceresney, Denis McInerney, Jeffrey Knox.

You had your defense attorneys — including Lanny Breuer (Covington & Burling), John Buretta (Cravath), George Canellos (Milbank Tweed) Robert Khuzami (Kirkland & Ellis), Scott Muller (Davis Polk), Mythili Raman (Covington & Burling), Bruce Yannett (Debevoise) and John Savarese (Wachtell).

You had your in house counsel — including Bradford Berenson (General Electric), Mark Califano (American Express), Sheila Cheston (Northrop Grumman), Stephen Cutler (JP Morgan Chase), Eric Grossman (Morgan Stanley).

Your had your judges — including Jed Rakoff, Valeria Caproni, John Gleeson, Raymond Lohier, Gerard Lynch.

And you had your academics — including Jennifer Arlen, Brandon Garrett, Miriam Baer, Samuel Buell, Stephen Choi, Kevin Davis, David Engstrom, Brandon Garrett, Michael Klausner, Reinier Kraakman, Julie O’Sullivan, Daniel Richman, Andrew Weissmann, Sara Beale and David Uhlmann.

[CORPORATE CRIME REPORTER]

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‘Zombie’ homes haunt Florida neighborhoods

‘Zombie’ homes haunt Florida neighborhoods

Aborted foreclosures leave thousands of properties in legal limbo


Center for Public Integrity-

Kelly Young was stunned when she got a letter in January informing her that her disability payments, those of her daughter, and their Medicare benefits were being cut off. The Social Security Administration said she lied on her application when she failed to disclose she owned a house.

As far as Young knew, she didn’t own anything. Four years earlier, Bank of America informed her it was foreclosing on her tiny yellow ranch-style house in Jacksonville, Florida, after the 45-year-old mother of three fell behind on her payments. When Young got the bank’s letter, she didn’t fight.

“They said foreclosure, so we just up and left,” said Young, sitting in the darkened living room of her rental house in a nightdress that reveals the bandages from recent heart surgery and the tubing from a dialysis port. “I’m not going to sit here and let someone put me out. I’ve never been evicted.”

The problem is, Bank of America never followed through. Now, four years later, Young struggles to pay her bills while across town her house sits empty, strewn with trash and rotting under a leaky roof, collecting fines for code violations and unpaid taxes and fees related to the delinquent mortgage.

[CENTER FOR INTEGRITY]

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With Debt Collection, Your Bank Account Could Be At Risk

With Debt Collection, Your Bank Account Could Be At Risk

Pay attention.

NPR-

Kari Fiotti moved back to Omaha, Neb., in 2009 after a decade living in Italy. She had divorced her husband and returned to the U.S. to start a new life.

Then, Fiotti, 44, took a pricey fall.

“When I came back, I fell and I broke my wrist without insurance,” she says.

Her doctor, she says, rejected her offer to make partial payments. So, like millions of Americans, her debt — which had grown to $1,640 with interest and fees — was turned over to collectors.

[NPR]

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Unseen Toll: Wages of Millions Seized to Pay Past Debts

Unseen Toll: Wages of Millions Seized to Pay Past Debts

A new study provides the first-ever tally of how many employees lose up to a quarter of their paychecks over debts like unpaid credit card or medical bills and student loans.


ProPUBLICA-

Back in 2009, Kevin Evans was one of millions of Americans blindsided by the recession. His 25-year career selling office furniture collapsed. He shed the nice home he could no longer afford, but not a $7,000 credit card debt.

After years of spotty employment, Evans, 58, thought he’d finally recovered last year when he found a better-paying, full-time customer service job in Springfield, Mo. But early this year, he opened his paycheck and found a quarter of it missing. His credit card lender, Capital One, had garnished his wages. Twice a month, whether he could afford it or not, 25 percent of his pay — the legal limit — would go to his debt, which had ballooned with interest and fees to over $15,000.

“It was a roundhouse from the right that just knocks you down and out,” Evans said.

The recession and its aftermath have fueled an explosion of cases like Evans’. Creditors and collectors have pursued struggling cardholders and other debtors in court, securing judgments that allow them to seize a chunk of even meager earnings. The financial blow can be devastating — more than half of U.S. states allow creditors to take a quarter of after-tax wages. But despite the rise in garnishments, the number of Americans affected has remained unknown.

[PROPUBLICA]

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BROOKINGS PAPER: Efficient Credit Policies in a Housing Debt Crisis – Janice Eberly and Arvind Krishnamurthy

BROOKINGS PAPER: Efficient Credit Policies in a Housing Debt Crisis – Janice Eberly and Arvind Krishnamurthy

Brookings-

Summary

Should another housing market crash occur, the government’s highest priority should be helping cash-short homeowners maintain spending in a weak economy and avoid foreclosure by temporarily reducing or deferring mortgage payments.

In “Efficient Credit Policies in a Housing Debt Crisis,” Janice Eberly of Northwestern University and Arvind Krishnamurthy of Stanford University build a theoretical framework to guide policymakers ahead of a housing collapse and in the aftermath, finding that reducing the loan principal spreads the benefits of government funds over a long period of time, rather than focusing on the crisis period. The housing bust of the late 2000s was at the heart of the worst recession since the Great Depression, and resulted in a set of government programs to help beleaguered homeowners and cushion the blow to the overall economy. The authors focus on the importance of liquidity constraints and consumer spending in the overall economy, especially during a financial crisis when there is a need to support household consumption.

[BROOKINGS]

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Winston Muhammad and Janet Muhammad v. BAC Home Loans Servicing | FL 4DCA – No Evidence of Standing…We reverse the final judgment of foreclosure entered in this case

Winston Muhammad and Janet Muhammad v. BAC Home Loans Servicing | FL 4DCA – No Evidence of Standing…We reverse the final judgment of foreclosure entered in this case

Winston Muhammad and Janet Muhammad v. BAC Home Loans Servicing, 4D13-1580 (Fla. Dist. Ct. App. 2014)

District Court of Appeal of Florida

Date Filed: September 10th, 2014

Status: Precedential

Docket Number: 4D13-1580

Fingerprint: de9957bbc25918da70703c41003a223713c62d26

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

WINSTON MUHAMMAD and JANET MUHAMMAD,
Appellants,

v.

BAC HOME LOANS SERVICING, LP,
Appellee.

No. 4D13-1580

[September 10, 2014]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Miette K. Burnstein, Judge; L.T. Case No.
10036145CACE.

Winston and Janet Muhammad, Lauderhill, pro se.

Lance T. Davies of Butler & Hosch, P.A., Orlando, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing, withdraw our prior opinion and
substitute the following in its place.

We reverse the final judgment of foreclosure entered in this case.
Appellants allege that the appellee failed to prove its standing to foreclose
at the trial. Not only was there no evidence of standing, but the trial court
treated the matter as though it were ruling on a motion for summary
judgment. It never took testimony and merely interrogated the parties as
to their respective positions, then ruled in favor of foreclosure. As no trial
was ever conducted, a final judgment should not have been entered. We
remand for a new trial, in which both parties may submit evidence
necessary to sustain their respective positions.

Reversed and remanded.

DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.
* * *

Not final until disposition of timely filed motion for rehearing.

2

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HSBC to pay $500M to $600M to settle FHFA’s claims over crisis-era mortgage bonds

HSBC to pay $500M to $600M to settle FHFA’s claims over crisis-era mortgage bonds

T.G.I.F…Always on a Friday!


WSJ-

HSBC Holdings PLC will pay as much as $600 million to settle a U.S. housing regulator’s claims the British bank’s U.S. arm failed to disclose adequately the risks on the mortgage bonds it sold to Fannie Mae and Freddie Mac ahead of the financial crisis, people familiar with the matter said.

The pact, which may be announced as early as Friday afternoon, would add HSBC’s name to the list of large financial firms that have settled mortgage-bond lawsuits filed by the Federal Housing Finance Agency in 2011. The FHFA, which…

[WALL STREET JOURNAL] subscription needed

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Deutsche Bank Natl. Trust Co. v Tassone | NYSC – the initial assignment of the mortgage and note from New Century to DBNT, is circumspect, thereby rendering any subsequent assignments questionable….fails to indicate whether the Note was assigned as well.

Deutsche Bank Natl. Trust Co. v Tassone | NYSC – the initial assignment of the mortgage and note from New Century to DBNT, is circumspect, thereby rendering any subsequent assignments questionable….fails to indicate whether the Note was assigned as well.

Decided on June 20, 2014

Supreme Court, Putnam County

 

Deutsche Bank National Trust Company, AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF MAY 1, 2003 MORGAN STANLEY ABS CAPITAL I INC. TRUST 2003-NC5, Plaintiff, -against -

against

Cosmo Tassone, CARMELA TASSONE, and “JOHN DOE” No.1-10, “MARY DOE” #1-10, and “JANE DOE” #1-10, the names being fictitious, their true names being unknown to the plaintiff, persons intended being persons in possession of portions of the premises herein described, Defendants.

2480/2011

Bruce H. Ashbahian, Esq.

DeRose & Surico

Attorney for Plaintiff

213-44 38th Avenue

Bayside, New York 11361

Nicole M. Black, Esq.

Clair & Gjersten, Esqs.

Attorney for Defendant

720 White Plains Road

Scarsdale, New York 10583
Victor G. Grossman, J.

The following papers, numbered 1 to 28, were considered in connection with Plaintiff’s motion to: (1) strike Defendant’s answer and grant summary judgment in Plaintiff’s favor; (2) change the name of plaintiff pursuant to an assignment of the mortgage; (3) amend the caption of the summons and complaint, notice of pendency, and all other papers filed by discontinuing the action against “John Doe” #1-10, “Mary Doe” #1-10, and “Jane Doe” #1-10 without prejudice; (4) appoint a referee; and (5) grant Plaintiff such other and further relief as the Court may deem just and proper; and Defendant’s Cross-Motion to Dismiss the Action in its Entirety.

PAPERSNUMBERED

Notice of Motion/Affirmation/Affidavit of Indebtedness/

Exhs. A-K1-14

Notice of Cross Motion/Affirmation in Opposition and In

Support of Cross Motion/Exhs. A-D15-20

Affirmation in Opposition/Exhs. A-G21-28

On February 18, 2003, Defendants Cosmo and Carmela Tassone executed an Adjustable Rate Note (the “Note”) with New Century Mortgage Corporation, wherein Defendants promised to repay New Century Mortgage Corporation, the principal sum of $280,000.00 with interest (Affirmation, Exh. A). At the same time, Defendants executed an Adjustable Rate Rider (Affirmation, Exh. A). To secure payment of the sum represented in the Note, Defendants duly executed and delivered to New Century Mortgage Corporation, a mortgage (the “Mortgage”), dated February 18, 2003, encumbering property located at 9 Fieldstone Road, Putnam Valley, New York 10579 (Affirmation, Exh. B). The Mortgage was recorded on April 2, 2003, in the Office of the Clerk of Putnam County at Liber 3552, Page 275 (Affirmation, Exh. B).

According to the documents presented to this Court, New Century Mortgage Corporation allegedly assigned the Mortgage and Note to Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., as Trustee (Affirmation, Exh. C). However, it is unclear when this occurred because the date of this document is January 2, 2004, but the document was not notarized until May 6, 2005 (Affirmation, Exh. C).

On July 1, 2011, Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., apparently assigned the Mortgage to Deutsche Bank National Trust Company, as Trustee Under Pooling and Servicing Agreement Dated as of May 1, 2003 Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5 (Affirmation, Exh. C).

There appears to be another assignment of the Mortgage on May 20, 2013 by Plaintiff Deutsche Bank National Trust Company, as Trustee Under Pooling and Servicing Agreement Dated [*2]as of May 1, 2003 Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5, to Deutsche Bank National Trust Company, As Trustee For Morgan Stanley ABS Capital 1 Inc. Trust 2003-NC5, Mortgage Pass-Through Certificates, Series 2003-NC5 (Affirmation, Exh. C) — almost two years after this action for foreclosure was commenced (Affirmation, Exh. D).

According to Plaintiff, Defendants defaulted by failing to make the monthly payment that was due on December 1, 2009, and each successive month thereafter (Affirmation, Exh. D).

On March 24, 2011, Plaintiff allegedly sent Defendants their ninety (90) day notice (Cross-Motion, Exh. B). The next day, on March 25, 2011, Plaintiff allegedly sent Defendants a thirty (30) day notice of default. As a result of Defendants’ failure to cure the default, Plaintiff declared the balance of the principal indebtedness immediately due and owing (Affirmation; Affidavit of Indebtedness; Exh. J).

On August 11, 2011, Plaintiff filed the Summons and Complaint and Notice of Pendency (Affirmation, Exhs. D-E). On August 24, 2011, Defendant Carmela Tassone was personally served the Summons and Complaint, along with RPAPL §1303 Notice (Affirmation, Exh. F).

Defendants interposed an Answer on September 6, 2011, denying the allegations in the complaint and alleging thirteen (13) affirmative defenses (Affirmation, Exh. G).

Settlement conferences were held on February 8, 2012, April 11, 2012, May 23, 2012, and July 25, 2012 (Report to Court, Exh. K). After the July 25, 2012 hearing, Court Attorney-Referee Albert J. DeGatano ruled that Plaintiff, by virtue of being under a pooling agreement, was not acting in bad faith for not offering a loan modification where that pooling agreement specifically prohibited Plaintiff from do so, the matter was released from the Foreclosure Settlement Part, and the instant motion was filed. Defendants are opposing, and cross moving for dismissal.RPAPL §1304 provides that at least 90 days before a lender commences an action to foreclose on a mortgage, notice must be provided to the borrower that the loan is in default and that his or her home is at risk. The lender is required to send this notice “by registered or certified mail and also by first-class mail” See RPAPL §1304. “[P]roper service of RPAPL notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition.” Aurora Loan Services, LLC v. Weisbaum, 85 AD3d 95, 103 (2d Dept. 2011). Since satisfaction of a statutory condition precedent is an element of the claim itself which must be proved by plaintiff, the failure to show strict compliance would require dismissal. Id.

Here, the 90-day notice was sent to Defendant on March 24, 2011 (Affirmation, Exh. J). While there is a typed notation at the top of the document reflecting that it was sent “VIA First Class Mail,” and “VIA Certified Mail (return receipt requested),” and noting the certified number, there is no affidavit of service submitted to establish proper service on the borrowers, thereby confirming these notations. See Aurora Loan Services, LLC v. Weisblum, 85 AD3d, supra at 106. As such, Plaintiff has failed to satisfy a “mandatory condition precedent,” and the foreclosure action must be dismissed.

And to the extent Plaintiff submitted its opposition to Defendants’ cross-motion and attached a printout from the USPS reflecting the same certified number, this Court will not accept it. First, this affirmation, dated February 28, 2014, was served over two months after Defendants’ December 13, 2013 cross-motion was made, and there is no indication in the papers or the file that Plaintiff was granted an extension. Moreover, Plaintiff fails to explain why there was a delay. While this Court prefers to decide issues on their merits, this Court cannot ignore [*3]this excessive delay. And second, even it the Court were to consider this printout — which is arguably not even in admissible form — Plaintiff cannot rely on evidence submitted for the first time in its reply papers to remedy deficiencies in its prima facie showing. See Novita, LLC v. Hotel Times Square, LLC, 2013 WL 5785929 (Sup.Ct. October 17, 2013), citing Those Certain Underwriters at Lloyds, London v. Gray, 49 AD3d 1, 9 (1st Dept. 2007); see also Gampero v. Mathai, 105 AD3d 995 (2d Dept. 2013). As such, this Court will not consider the reply papers.In further support of their cross-motion, Defendants contest Plaintiff’s standing to commence this action. Although the failure to properly serve RPAPL §1304 Notice is sufficient reason to grant Defendants’ cross-motion and dismiss the complaint, this Court will address the standing issue in light of the possibility that the action may be recommenced after Plaintiff effects proper service of RPAPL §1304 Notice.

The plaintiff in a foreclosure action must establish the existence of the promissory note and a related mortgage referable to the subject property, its ownership of the mortgage and the defendant’s default in payment. Campaign v. Barba, 23 AD3d 327 (2d Dept. 2005). With respect to the issue of ownership, “[a]n assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it.” Deutsche Bank National Trust Co. v. Barnett, 88 AD3d 636, 637 (2d Dept. 2011). The foreclosing party, as plaintiff, must establish that it is “both the holder or assignee of the subject mortgage, and the holder of the underlying note, at the time the action is commenced.” Homecomings Financial, LLC v. Guldi, 103 AD3d 506 (2d Dept. 2013), quoting Bank of New York v. Silverberg, 86 AD3d 274, 282-83 (2d Dept. 2011).

Here, in the documents provided, the initial assignment of the mortgage and note from New Century Mortgage Corporation to Deutsche Bank National Trust Company f/k/a Bankers Trust Company of California, N.A., is circumspect, thereby rendering any subsequent assignments questionable. Moreover, the subsequent assignment of the mortgage to the current Plaintiff fails to indicate whether the Note was assigned as well.

Moreover, putting aside the validity of the initial assignment, it is still unclear from the affidavit of Alexa Benincasa whether Plaintiff was in physical possession of the Note at the time the action was commenced. As a threshold matter, as Defendant correctly points out, there is no indication in the record or moving papers, what authority a “Contract Management Coordinator” has to attest to the facts that she has. Moreover, her blanket statement that Plaintiff possessed the Note at the time of the commencement of the action, without any facts to support this statement, is insufficient to establish that Plaintiff did in fact have such possession. And the assignment of mortgage to the instant Plaintiff lends no further proof. As such, Plaintiff needs to be prepare to answer these questions at a future hearing, if one is ordered, as it has failed to establish a prima facie case.In light of the foregoing, this Court need not address the remaining issues, and it is hereby

ORDERED that Plaintiff’s motion is denied; and it is further

ORDERED that Defendant’s cross-motion is granted, and the action is dismissed without prejudice.The foregoing constitutes the Decision and Order of the Court.

Dated:Carmel, New York

June 20, 2014

__________________________________

HON. VICTOR G. GROSSMAN, J.S.C.

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Losing Your House When the Bank Already Lost Your Paperwork

Losing Your House When the Bank Already Lost Your Paperwork

The title should have included “AND Your Government That Didn’t Give a Shit!”

Newsweek-

Florida Circuit Court Judge Diana Lewis was in a hurry. She had 93 foreclosure cases before her in the next two hours and she made it clear that she wasn’t going to let anything slow her down. “This is a 2009 case. You’ve had years to negotiate,” she told one lawyer trying to delay a foreclosure judgment because his client and the lender were working out a deal.

Later, she agreed to an extension on a foreclosure sale but admonished the defense lawyer. “I’ll give you 30 days. That’s it. Don’t come back. I don’t want to see your face back here.”

At least twice that morning at the Palm Beach County Courthouse she refused to delay foreclosure trials in cases where the banks and homeowners together requested extra time. Lewis’ manner may be brusque, but her actions aren’t unusual among foreclosure judges in Florida, who in the last year have been working under explicit directions from the state Legislature and Supreme Court to get rid of old cases and clear the court dockets, largely by awarding tens of thousands of homes to banks.

[NEWSWEEK]

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