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Blackstone v. Sharma, Md: Court of Special Appeals | Because Ventures Trust had no such license, it was barred from filing, through its agents, the two foreclosure actions here at issue

Blackstone v. Sharma, Md: Court of Special Appeals | Because Ventures Trust had no such license, it was barred from filing, through its agents, the two foreclosure actions here at issue

 

KYLE BLACKSTONE, ET AL.,
v.
DINESH SHARMA, ET AL.
TERRANCE SHANAHAN, SUBSTITUTE. TRUSTEE, ET AL.,
v.
SEYED MARVASTIAN, ET AL.

Nos. 1524, 1525 Consolidated Case, September Term, 2015.
Court of Special Appeals of Maryland.
Filed: June 6, 2017.
Wright, Shaw Geter, Salmon, James P., (Senior Judge, Specially Assigned), JJ.

Opinion by SALMON, J.

This consolidated appeal originates from two foreclosure cases filed in the Circuit Court for Montgomery County. In both cases, substitute trustees (collectively, “appellants”) acting on behalf of Ventures Trust 2013-I-H-R (“Ventures Trust”), a statutory trust formed under the laws of the State of Delaware, filed orders to docket foreclosure suits against homeowners in the State of Maryland. The circuit court judges who considered the cases dismissed the actions, determining that pursuant to the Maryland Collection Agency Licensing Act (“MCALA”), codified at Maryland Code (1992, 2015 Repl. Vol.), Business Regulation Article (“B.R.”) § 7-101, et seq., Ventures Trust was required to be licensed as a collection agency and, because Ventures Trust had not obtained such a license, any judgment entered as a result of the foreclosure actions would be void. The dismissal of these foreclosure actions, without prejudice, presents us with two questions:

1. Under the MCALA, does a party who authorizes a trustee to initiate a foreclosure action need to be licensed as a collection agency before filing suit?

2. If the answer to question one is in the affirmative, does the licensing requirement apply to foreign statutory trusts such as Ventures Trust?

We shall answer “yes” to both questions and affirm the judgments entered by the Circuit Court for Montgomery County.

BACKGROUND

Appeal No. 1524

On August 4, 2006, Dinesh Sharma, Santosh Sharma, and Ruchi Sharma[1](collectively “the Sharmas”) executed a deed of trust that encumbered real property in Potomac, Maryland, in order to secure a $1,920,000 loan. Washington Mutual Bank, FA was the lender. The Sharmas, in December 2007, defaulted on the loan by failing to make payments when due.

Ventures Trust, by its trustee MCM Capital Partners, LLC (“MCM Capital”), acquired ownership and “all beneficial interest” of the loan on October 9, 2013. The substitute trustees[2] appointed by Ventures Trust filed an order to docket, initiating the foreclosure action, on November 25, 2014. The Sharmas owed $3,008,536.23 on the loan as of November 25, 2014.

The Sharmas responded to the foreclosure action by filing a counterclaim which was later severed by order of the circuit court. They also filed a motion to dismiss or enjoin the foreclosure sale pursuant to Md. Rule 14-211.[3] The substitute trustees moved to strike the Sharmas’ motion, which the court granted on May 7, 2015. The Sharmas filed a motion to alter or amend the May 7th order. On June 22, 2015 the court vacated its May 7th order, denied the substitute trustees’ motion to strike the Sharmas’ motion to dismiss, and set a hearing date for arguments concerning the motion to dismiss.

Following a hearing, the court, on August 28, 2015, issued an opinion and order granting the motion to dismiss the foreclosure action without prejudice. In its written opinion the circuit court determined that, pursuant to the MCALA, Ventures Trust was a collection agency and was therefore required to be licensed before attempting to collect on the deed of trust. The circuit court ruled that because Ventures Trust was not licensed as a collection agency, it had no right to file a foreclosure action. In its written opinion, the court also rejected Ventures Trust’s contention that it was a “trust company” and was therefore exempt from MCALA’s licensure requirements. The substitute trustees noted a timely appeal.

Appeal No. 1525

On June 23, 2006, Seyed and Sima Marvastian executed a deed of trust on property in Bethesda, Maryland in order to secure a $1,396,500 loan. Premier Mortgage Funding, Inc. was the lender. The Marvastians defaulted on the loan by failing to make payments when due in December 2012.

Ventures Trust by its trustee MCM Capital acquired the Marvastians’ loan in February 2014. On October 20, 2014, the substitute trustees filed an order to docket, initiating the foreclosure process. At the time of filing, the substitute trustees alleged that the Marvastians owed $1,632,303.26 on the loan.

The Marvastians responded by filing a counterclaim, which was severed by order of the circuit court. They also filed a motion to dismiss or stay the foreclosure sale pursuant to Md. Rule 14-211. Following extensive briefing and a hearing, the court granted the Marvastians’ motion to dismiss, albeit without prejudice. The judge’s reasons for dismissing the case were exactly the same as those given for dismissing the foreclosure case that is the subject of Appeal No. 1524.

I.

STANDARD OF REVIEW

[B]efore a foreclosure sale takes place, the defaulting borrower may file a motion to stay the sale of the property and dismiss the foreclosure action. In other words, the borrower, may petition the court for injunctive relief, challenging the validity of the lien or . . . the right of the [lender] to foreclose in the pending action. The grant or denial of injunctive relief in a property foreclosure action lies generally within the sound discretion of the trial court. Accordingly, we review the circuit court’s denial of a foreclosure injunction for an abuse of discretion. We review the trial court’s legal conclusions de novo.

Hobby v. Burson, 222 Md. App. 1, 8 (2015) (internal citations and quotation marks omitted). See also Svrcek v. Rosenberg, 203 Md. App. 705, 720 (2012). In the two cases that are the subject of this appeal, the trial judges based their rulings on their legal conclusions. Thus we review those conclusions de novo.

II.

In Finch v. LVNV Funding, LLC, 212 Md. App. 748, 758-64 (2013) we stated that without a license, a collection agency has no authority to file suit against the debtor. Accordingly, a “judgment entered in favor of an unlicensed debt collector constitutes a void judgment[.]” Id. at 764. See also Old Republic Insurance v. Gordon, 228 Md. App. 1, 12-13 (2016) (footnote omitted).

Maryland Code B.R. § 7-101(c) defines a collection agency as follows:

“Collection agency” means a person who engages directly or indirectly in the business of:

(1)(i) collecting for, or soliciting from another, a consumer claim; or

(ii) collecting a consumer claim the person owns, if the claim was in default when the person acquired it;

(2) collecting a consumer claim the person owns, using a name or other artifice that indicates that another party is attempting to collect the consumer claim;

(3) giving, selling, attempting to give or sell to another, or using, for collection of a consumer claim, a series or system of forms or letters that indicates directly or indirectly that a person other than the owner is asserting the consumer claim; or

(4) employing the services of an individual or business to solicit or sell a collection system to be used for collection of a consumer claim.

(Emphasis added.)

As used in the Business Regulations Article, “person” means “an individual . . . trustee . . . fiduciary, representative of any kind, partnership, firm, association, corporation, or other entity.” B.R. § 1-101(g). B.R. 7-101(e) defines a “consumer claim” as meaning a “claim that: 1) is for money owed or said to be owed by a resident of the State; and 2) arises from a transaction in which, for a family, household, or personal purpose, the resident sought or got credit, money, personal property, real property, or services.”

Before the law was amended in 2007, MCALA applied only to businesses that collected debts owed to another person. Old Republic, 228 Md. App. at 16. In 2007, the statute was broadened to include persons who engage in the business of “collecting a consumer claim the person owns, if the claim was in default when the person acquired it[.]” B.R. § 7-101(c)(1)(ii).

The legislative history of the 2007 amendment, insofar as here pertinent, was set forth in Old Republic as follows:

[T]he legislative history makes clear that the General Assembly enacted the 2007 amendments to regulate “debt purchasers,” who were exploiting a loophole in the law to bypass the MCALA’s licensing requirements.

The Senate Finance Committee Report on House Bill 1324 explained:

House Bill 1324 extends the purview of the State Collection Agency Licensing Board to include persons who collect consumer claims acquired when the claims were in default. These persons are known as “debt purchasers” since they purchase delinquent consumer debt resulting from credit card transactions and other bills; these persons then own the debt and seek to collect from consumers like other collection agencies who act on behalf of original creditors.

Charles T. Turnbaugh, Commissioner of Financial Regulation and Chairman of the Maryland Collection Agency Licensing Board offered the following testimony:

[T]he evolution of the debt collection industry has created a “loophole” used by some entities as a means to circumvent current State collection agency laws. Entities, such as “debt purchasers” who enter into purchase agreements to collect delinquent consumer debt rather than acting as an agent for the original creditor, currently collect consumer debt in the State without complying with any licensing or bonding requirement. The federal government has recognized and defined debt purchasers as collection agencies, and requires that these entities fully comply with the Federal Fair Debt Collection Practices Act.

This legislation would include debt purchases within the definition of “collection agency,” and require them to be licensed by the Board before they may collect consumer claims in this State. Other businesses that are collecting their own debt continue to be excluded from this law.

Susan Hayes, a member of the Maryland Collection Agency Licensing Board, submitted the following in support of the bill:

The traditional method of dealing with distressed accounts has been for creditors to assign these accounts to a collection agency. These agencies, operating under a contingency fee arrangement with the creditor, keep a portion of the amount recovered and return the balance to the creditor. Today, a different option is available — selling accounts receivables to a third party debt collector at a discount.

* * *

HB 1324 closes a loophole in licensing of debt collectors under Maryland law. Just because a professional collector of defaulted debt “purchases” the debt, frequently on a contingent fee basis, should not exclude them from the licensing requirements of Maryland law concerning debt collectors.

Id. at 19-20.

Ventures Trust is in the business of buying from banks, at a discount, mortgages and deeds of trust that are in default. In the cases here at issue, there is no dispute that: 1) when Ventures Trust purchased the loans in question, the loans were in default; and 2) Ventures Trust, by filing (through its agents — the trustees) the foreclosure actions it was attempting to collect “consumer debt.”

As we said in Old Republic, the legislative history of the 2007 amendments to the MCALA make it “clear that the General Assembly had a specific purpose in mind in adopting the 2007 amendments, i.e., including [under the Act] debt purchasers, people who purchased defaulted accounts receivable at a discount, within the purview of MCALA.” Id. at 21. Money owed on a note secured by a deed of trust or a mortgage certainly qualifies as an account receivable. And Ventures Trust is in the business of buying up defaulted mortgages or deeds of trust and instituting foreclosure actions to obtain payment.

Appellants contend that the MCALA does not require a party to be licensed as a collection agency in order to file a foreclosure action. They support that contention with the following argument:

Foreclosures are not mentioned [in B.R. § 7-101(c)], although the Legislature clearly knew how to do so if it had wished. There is no specific statement in the MCALA to the effect that “doing business” as a “collection agency” includes actions taken to enforce a security interest, such as foreclosing on a deed of trust, nor is there any specific statement that such actions would fall into the definition of “collecting” a consumer claim. Neither this Court nor the Court of Appeals has ever ruled that pursuing a foreclosure proceeding amounts to “doing business” in Maryland as a “collection agency” under the Act, and for good reason. As the Legislature has made clear in numerous statutes, a foreign entity — including a statutory trust such as Ventures Trust — pursuing foreclosure is not “doing business” in Maryland[.]

Appellants emphasize that Md. Code (2014 Repl. Vol.), Corporations and Associations Article § 12-902(a) requires any foreign statutory trust doing business in Maryland to register with the State Department of Assessments and Taxation (“SDAT”). Section 12-908(a)(5) provides, however, that “[f]oreclosing mortgages and deeds of trust on property in this State” is not considered “doing business.”

According to appellants, because of “the Legislature’s” express decision to make clear that a foreclosure proceeding brought by a foreign statutory trust is by definition, not doing business in Maryland, a foreign trust does not need to be licensed as a collection agency to file a Maryland foreclosure action. That argument would be strong were it not for the fact (relied upon by both circuit court judges who ruled against appellants below) that section 12-908(a) of the Corporations and Associations Article expressly states that the “doing business” exception granted to foreign trusts is “for the purposes of this subtitle[.]” In other words, the foreign trust exception does not apply to the MCALA.

It is true, as appellants point out, that no Maryland appellate court has ever held that a foreign trust needs a license under the MCALA to file a foreclosure action. But the matter has simply not been addressed by any Maryland appellate court.

Judge Ellen Hollander, in Ademiluyi v. PennyMac Mortgage Investment Trust Holdings I, LLC, et al., 929 F.Supp.2d 502, 520-24 (D. Md. 2013) did hold that a MCALA license was needed to bring a foreclosure action based on the allegations set forth in the complaint filed in that case. In Ademiluyi, the holder of the mortgage (PennyMac), filed a foreclosure action on a mortgage even though (it was alleged) that PennyMac purchased the mortgage after it was in default and did not have a debt collection license. Id. at 520. The issue in that case was whether, based on the allegations in the complaint, PennyMac needed a license prior to bringing a foreclosure action. Id.

After a lengthy discussion, Judge Hollander said:

I am persuaded that, even if actions pertinent to mortgage foreclosure are taken in connection with enforcement of a security interest in real property, such actions may constitute debt collection activity under the MCALA. Therefore, based on the facts alleged by plaintiff, PennyMac Holdings may qualify as a collection agency under the MCALA with respect to mortgage debt it seeks to collect, including through judicial foreclosure proceedings or other conduct pertinent to foreclosure.

Id. at 523.

Support for Judge Hollander’s conclusion can be found in a twenty-one page order, dated December 8, 2013, signed by Gordon M. Cooley, Chairperson of the Maryland State Collection Agency Licensing Board.[4] Mr. Cooley ordered several entities, including NPR Capital, LLC, to stop attempting to collect consumer debts by filing foreclosure actions. At page 17 of his order, the Acting Commissioner determined, inter alia, that NPR Capital violated the provisions of the MCALA (specifically B.R. § 7-401(a)) by attempting to collect a debt by filing a foreclosure action at a time when it was not licensed as a collection agency.

When interpreting the MCALA, the ruling by Commissioner Cooley is of consequence because, as the Court of Appeals recently said, it is well established that appellate courts “should ordinarily give `considerable weight’ to `an administrative agency’s interpretation and application of the statute'” it is charged with administering. Board of Liquor License Commissioners for Baltimore City v. Kougl, 451 Md. 507, 514 (2017), (quoting Maryland Aviation Administration v. Noland, 386 Md. 556, 572 (2005)). As can be seen, the Board that administers the MCALA statute is of the view that the MCALA covers persons who attempt to collect consumer debt by filing a foreclosure action.

In support of their position, appellants point out, accurately, that nowhere in the legislative history of the 2007 amendment to the MCALA, is there any mention of foreclosure actions. From this, appellants ask us to infer that the General Assembly did not intend that persons who purchase defaulted mortgages or deeds of trust and then file foreclosure actions needed to purchase a debt collection license. In our view, the absence of a specific reference in the legislative history is not dispositive because, insofar as the issue here presented is concerned, the MCALA is unambiguous.

With exceptions not here relevant except the one discussed in Part III, infra, “a person must have a license whenever the person does business as a collection agency in the State.” B.R. § 7-301(a). The definition of a “collection agency” has five elements. Old Republic, 228 Md. App. at 23 (Nazarian, J. dissenting). Those elements are:

“[a] a person who [b] engages directly or indirectly in the business of . . . collecting a [c] consumer claim the [d] person owns, [e] if the claim was in default when the person acquired it.” BR § 7-101(c)(ii).

Id.

Ventures Trust admits that it meets elements (a), (c), (d) and (e). It argues, however, that element (b) is not met because it does not “engage in the business of collecting” debt by filing foreclosure actions. Boiled down to its essence, appellants’ “not in the business” argument is based on the contention that the General Assembly intended to exempt from the MCALA persons who attempt to collect consumer debt by bringing foreclosure actions. We can find no such intent in the words of the statute or in anything in the Act’s legislative history. We therefore reject that contention and hold that unless some exception to the MCALA is applicable, the licensing requirements of the MCALA applies to persons who attempt to collect a consumer debt by bringing a foreclosure action.

III.

The MCALA states: “This title does not apply to . . . a trust company[.]” B.R. § 7-102(b)(8). The statute does not define “trust company.” See B.R. § 7-101. Appellants claim that even if the MCALA licensing requirement applies to a person who brings a foreclosure action in order to enforce a consumer debt, the MCALA does not apply to Ventures Trust because it is a “trust company.” Black’s Law Dictionary (10th ed. 2014) defines “trust company” as “[a] company that acts as a trustee for people and entities and that sometimes also operates as a commercial bank.” The appellants claim that Ventures Trust meets that definition because, purportedly, Ventures Trust “certainly holds and maintains trust property.”

We pause at this point to discuss what the record reveals about Ventures Trust. In appellants’ filing with the Montgomery County Circuit Court, appellants’ counsel stated that Ventures Trust is the holder of the notes at issue, and that it is a statutory trust formed in Delaware under 12 DEL. CODE § 3801(g). Ventures Trust has two trustees. They are MCM Capital and Wilmington Federal Savings Fund Society, FSB doing business as Christiana Trust. In Appeal No. 1525, counsel for the substitute trustees orally told the motions judge that Ventures Trust was “like an account at Christiana Bank” and that Christiana Trust was the trustee of Ventures Trust. That representation was also made by counsel for the substitute trustee in that case in a supplemental memorandum where it was said: “Ventures Trust. 2013-I-H-R…, is the holding of a Federal Savings Bank[,] which serves as its co-trustee….”

Using the Black’s Law Dictionary (10th edition) definition of “trust company” set forth above, Ventures Trust does not fit within that definition. It does not act as a bank. Moreover, other entities act as trustees for it. There is nothing in the record that shows that Ventures Trust acts as a trustee for anyone.

Appellants also suggest that we use the slightly different definition of “trust company” set forth in Black’s Law Dictionary (5th ed. 1979) because that edition of Black’s was published “around the time of the 1977 amendment” that exempted trust companies from the MCALA. Black’s 1979 definition of “trust company” was as follows: “a corporation formed for the purpose of taking, accepting, and executing all such trusts as may be lawfully committed to it, and acting as testamentary trustee, executor, guardian, etc.” There is no indication in the record that Ventures Trust is a corporation or, as already mentioned, that it acts as a trustee for anyone. Therefore, Ventures Trust does not meet that definition either.

The words “trust company” is defined in Md. Code (2011 Repl. Vol.), Financial Institutions Article (“Fin. Institutions”) § 3-101(g) as meaning “an institution that is incorporated under the laws of this State as a trust company.” But that definition only applies to matters set forth in the Fin. Institutions Article section 3-101(a). In Fin. Institutions §3-501(d), governing common trust funds, the term “trust companies” is defined as including a national banking association that has powers similar to those given to a trust company under the laws of “this State.” That definition, however, only applies to subtitle 5 of the Financial Institutions Article. Md. Code (2011 Repl. Vol.), Estates and Trusts Article§ 1-101(v) also contains a definition of “Trust Company” but it applies only to laws governing the “estates of decedents.” See Estates & Trusts Article § 1-101(a). Lastly, the term “statutory trust” is defined in Md. Code (2011 Repl. Vol.), Corporations and Associations Article § 12-101(h) as meaning: an unincorporated business, trust, or association:

(i) Formed by filing an initial certificate of trust under § 12-204 of this title; and

(ii) Governed by a governing instrument.

(2) “Statutory trust” includes a trust formed under this title on or before May 31, 2010, as a business trust, as the term business trust was then defined in this title.

Ventures Trust admits that it does not fit within any of the above definitions of “trust company” or “statutory trust.” Moreover, even if it did meet one or more of those definitions, there is no indication that the legislature, in 1977, when it exempted “trust companies” from the MCALA, intended those definitions to be used. As appellants concede, we are thus left with the general definition of “trust company” as set forth in Black’s Law Dictionary. See Ishola v. State, 404 Md. 155, 161 (2008)(Dictionary definitions help clarify the plain meaning of a statute.).

The circuit court judge who dismissed the foreclosure action that is the subject of Appeal 1524 reached the following legal conclusion with which we are in complete accord:

MCALA expressly limits the scope of its license requirement exemptions to those “… provided in this title….” Md. Code Ann., Bus. Reg. § 7-301(a) (emphasis added). MCALA does not explicitly exempt “foreign statutory trusts” that bring foreclosure actions from its licensing requirements. See Bus. Reg. § 7-102(b). In fact, the term “foreign statutory trust” never appears in MCALA. See Bus. Reg. § 7-101, et seq. Thus, the General Assembly expressed a clear intent to subject foreign statutory trusts that bring foreclosure actions in Maryland, like Ventures Trust, to MCALA’s licensing requirements.

CONCLUSION

A debt purchaser that attempts to collect a consumer debt by bringing a foreclosure action is required to have a license unless some statutory exemption applies. Contrary to appellants’ contention, Ventures Trust is not a “trust company” within the meaning of the MCALA and must therefore obtain a debt collection license in accordance with the provisions of the MCALA before bringing a foreclosure action. Because Ventures Trust had no such license, it was barred from filing, through its agents, the two foreclosure actions here at issue.

JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANTS.

[1] The Sharmas contend that Ruchi Sharma, though listed as a borrower on the deed of trust, was not intended to be listed as such and signed the deed of trust only as a witness. They allege that the deed of trust was altered after Ruchi signed it. Whether that allegation is true has no impact on our decision.

[2] The substitute trustees in Appeal No. 1524 are Kyle Blackstone, Terrance Shanahan, and William O’Neill. The substitute trustee in Case No. 1525 is Terrance Shanahan. At the time of the filing of the order to docket in Appeal No. 1525, Erik Yoder was also a substitute trustee, but he no longer is a party to this action.

[3] Rule 14-211(e) provides:

After the hearing on the merits, if the court finds that the moving party has established that the lien or the lien instrument is invalid or that the plaintiff has no right to foreclose in the pending action, it shall grant the motion and, unless it finds good cause to the contrary, dismiss the foreclosure action. If the court finds otherwise, it shall deny the motion.

[4] Mr. Cooley also signed the order in his capacity as the Acting Director of Financial Regulation for Maryland.

 

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Florida couple stunned to learn $458,000 paid for gulf-front condo may be for nothing

Florida couple stunned to learn $458,000 paid for gulf-front condo may be for nothing

Tampa Bay-

On June 8, a condo overlooking the Gulf of Mexico in North Redington Beach sold at a Pinellas County foreclosure auction for $458,100.

The winning bidders, an Orlando couple, thought they had gotten a good deal on the 1,500-square unit in the Ram-Sea Condominiums with heated pool and Jacuzzi. Owners can use their condos as permanent homes or lucrative vacation rentals.

But the Orlando couple won’t do either. After the electronic auction was over and the money paid, they made an alarming discovery: A bank has a superior first mortgage on the condo and could soon foreclose.

That would leave them with no condo and out almost half a million dollars.

[TAMPA BAY]

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Wells Fargo Unsettles Mortgage Bond Market by Holding Back Funds

Wells Fargo Unsettles Mortgage Bond Market by Holding Back Funds

  • Trustee kept $90 million owed to investors in 20 securities
  • Money held to cover legal costs related to financial crisis

Bloomberg-

Wells Fargo & Co. surprised investors this week by withholding more than $90 million due to buyers of pre-crisis residential mortgage-backed securities.

The bank said it invoked its right as trustee to hold back funds to cover legal costs. The 20 transactions had a principal balance of $540 million and are among more than 2,000 deals involved in a lawsuit brought by bondholders including BlackRock Inc. and Pacific Investment Management Co. in 2014 to recover losses from the financial crisis.

It’s only the second time that proceeds from bonds involved in that litigation have been withheld from investors. Wells Fargo’s move caused losses for some bondholders and sent others scrambling to assess risks for similar deals in a market still recovering from the bursting of the housing bubble in 2008.

[BLOOMBERG]

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Deutsche Bank National Trust Company v. Garcia, et al. | HAWAII ICA – Judgment Vacated, The Grant of Summary Judgment In Favor Of Deutsche Bank Was An ERROR

Deutsche Bank National Trust Company v. Garcia, et al. | HAWAII ICA – Judgment Vacated, The Grant of Summary Judgment In Favor Of Deutsche Bank Was An ERROR

H/T DUBIN LAW OFFICES

 

028874758 (1) by DinSFLA on Scribd

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TFH 7/2 | 10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening?

TFH 7/2 | 10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening?

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 –  July 2

10 Ways Courts Could Easily Reduce Otherwise Increasing Residential Foreclosure Case Backlogs by More Than 95% While Protecting Homeowners at the Same Time — Are Any Judge’s Listening?
———————

The size of judicial residential foreclosure case backlogs has sharply gyrated up and down in recent decades in virtually all state and federal courts.

Between approximately 1990 and 2000, for instance, in many state and federal jurisdictions the number of judicial foreclose filings rapidly increased, annoyingly becoming the majority of all cases in many courts, with dramatically mushrooming case backlogs, which forced many courts irrationally to adopt in arguably wrongly perceived self-defense either openly or in effect the “rocket docket” processing of many residential foreclosure cases.

Federal courts, moreover, adopted in response what they openly called a “triage” approach, instructing Magistrates frankly to force foreclosure settlements, Magistrates frequently threatening homeowners that otherwise their assigned federal district judge would rule against them, which is what usually happened — anything to cut their foreclosure backlog which in truth was impeding the time available for all other cases deemed more important by federal judges.

And when Fannie Mae and Freddie Mac, in order to save money and speed up foreclosures, instructed foreclosure attorneys by 2000 to elect nonjudicial foreclosures instead, many courts expressed a sigh of relief as if a tsunami had turned away, and matter-of-factly closed their collective eyes to abuses in the unsupervised nonjudicial foreclosure process.

Today in many state court jurisdictions there is emerging an increased awareness of the unacceptable abuses in nonjudicial foreclosure sales as well as within securitized trust judicial foreclosure litigation, with increased appellate restrictions being announced almost daily upon judicial and nonjudicial foreclosing plaintiffs alike, raising the specter once again of increasing foreclosure case backlogs, surely soon to threaten a new self-defensive retreat by state courts away from protecting homeowner rights.

To hopefully counter this likely reverse trend, The Foreclosure Hour presents 10 ways in which state courts could easily cut their foreclosure case backlogs by more than 95% while increasing, not decreasing, protections for homeowners.

Tune in to this Sunday’s live broadcast, or listen in when the show’s audio is immediately posted on the “past broadcasts” section of our website, www.foreclosurehour.com.

You will be pleasantly surprised. Hopefully judges in your individual jurisdiction will also be listening to this historic broadcast.
~

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

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The Foreclosure Hour 12

 

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Bank of America v Yeh | HAWAII ICA – BANA did not present evidence to establish its entitlement to enforce the Note at the time the action commenced.

Bank of America v Yeh | HAWAII ICA – BANA did not present evidence to establish its entitlement to enforce the Note at the time the action commenced.

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A Review and Assessment of the National Mortgage Settlement by Its Monitor Joseph A. Smith Jr.

A Review and Assessment of the National Mortgage Settlement by Its Monitor Joseph A. Smith Jr.

A REVIEW AND ASSESSMENT OF THE NATIONAL
MORTGAGE SETTLEMENT BY ITS MONITOR
JOSEPH A. SMITH, JR.*

Since April 2012, I have served as Monitor of the consent
judgments commonly known as the National Mortgage Settlement (the
“Settlement”). The obligations of the mortgage servicer parties to the
first five of such judgments1 were satisfied in March 2016. Three
consent judgments under the Settlement’s structure remain in effect.2
Although the mortgage servicing settlement process is ongoing,
completion of the first five consent judgments is an appropriate vantage
point from which to review the Settlement and assess its impact and
significance. This Article provides such a review and assessment based
on my work as the Settlement’s Monitor.
[…]

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Ocwen Financial Corp. Securities Litigation | OCWEN Loses at Summary judgement Phase | {IT] …determined Ocwen materially misrepresented in its securities filings and other public statements that its Executive Chairman would recuse himself from Ocwen’s transactions . . .

Ocwen Financial Corp. Securities Litigation | OCWEN Loses at Summary judgement Phase | {IT] …determined Ocwen materially misrepresented in its securities filings and other public statements that its Executive Chairman would recuse himself from Ocwen’s transactions . . .

The Court concluded that although Ocwen and the Executive Chairman definitively stated the Executive Chairman would recuse himself according to company policy, there was in fact no company policy requiring recusal, nor had the Executive Chairman recused himself. 

The National Law Review-

In a June 13, 2017, ruling on a motion for partial summary judgment in the Ocwen Financial Corp. Securities Litigation (the “Ocwen Litigation”), the United States District Court for the Southern District of Florida determined Ocwen materially misrepresented in its securities filings and other public statements that its Executive Chairman would recuse himself from Ocwen’s transactions with companies in which the Executive Chairman also served as Chairman and thus had a direct financial interest.  The Court concluded that although Ocwen and the Executive Chairman definitively stated the Executive Chairman would recuse himself according to company policy, there was in fact no company policy requiring recusal, nor had the Executive Chairman recused himself.  The Court further concluded these statements by Ocwen and the Executive Chairman was materially false and misleading as a matter of law.  Thus, while class plaintiffs still must prove the remaining elements of their Section 10(b)/Rule 10b-5 claim at trial, the Court found the class plaintiffs were entitled to judgment as a matter of law on the first element of their claim – that the statements concerning the Executive Chairman’s recusal were materially false and misleading.

[THE NATIONAL LAW REVIEW]

 

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FULL DEPOSITION OF JOSEPH A. SMITH JR | National Mortgage Settlement Monitor

FULL DEPOSITION OF JOSEPH A. SMITH JR | National Mortgage Settlement Monitor

H/T LivingLies

From deposition testimony pages 104 and 105:

 

Q. And did your office and/or you do anything to ensure compliance with the HAMP and the service participation agreements?

 

A. “ What we did with all servicers was to meet and require them to provide to us their assessment of what the applicable requirements we’ve just discussed –applicable to their compliance with the settlement were.  And we worked through a series of protocols and adjustments necessary to ensure that we wouldn’t cause them not to comply.

______________

The issue really was whether compliance with the National Mortgage Settlement would require that a servicer put itself in a position of default or where it could be penalized. “

 

This appears to be an “admission” that the Monitor of the National Mortgage Settlement deliberately made adjustments to ensure that the servicers did not fail the compliance tests.  If they failed, the monitor would adjust the tests so they would pass. 

 

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VERIZZO v. BANK OF NEW YORK MELLON | FL 2DCA – We are again required to reverse a final judgment of foreclosure because of the plaintiff’s failure to prove at trial the existence of standing at the inception of the case

VERIZZO v. BANK OF NEW YORK MELLON | FL 2DCA – We are again required to reverse a final judgment of foreclosure because of the plaintiff’s failure to prove at trial the existence of standing at the inception of the case

DAVID VERIZZO, Appellant,
v.
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS SUCCESSOR TRUSTEE FOR JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-3 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES 2006-3, Appellee.

Case No. 2D15-2508.
District Court of Appeal of Florida, Second District.

Opinion filed June 21, 2017.
Appeal from the Circuit Court for Sarasota County; Nancy K. Donnellan, Senior Judge.

David Verizzo, pro se.

Diana B. Matson and Joshua R. Levine, of Baker, Donelson, Bearman, Caldwell and Berkowitz, PC, Fort Lauderdale, for Appellee.

SALARIO, Judge.

We are again required to reverse a final judgment of foreclosure because of the plaintiff’s failure to prove at trial the existence of standing at the inception of the case. See Stoltz v. Aurora Loan Servs., LLC, 194 So. 3d 1097, 1098 (Fla. 2d DCA 2016) (“We are again required to reverse a final judgment of foreclosure because of the plaintiff’s failure to prove at trial the existence of standing at inception of the case.”). We remand for entry of an order of involuntary dismissal under Florida Rule of Civil Procedure 1.420(b).

The proceedings leading to the judgment on review span many years, but the facts relevant to our decision are few. On April 24, 2008, The Bank of New York, as successor trustee for Novastar Mortgage Funding Trust Series 2006-3, filed a complaint against David Verizzo to reestablish a lost note and to foreclose a mortgage securing the debt the note evidenced.[1] The bank attached a copy of the mortgage but not a copy of the note.[2] The mortgage stated that the borrower and mortgagor was Mr. Verizzo, that the lender was Novastar Mortgage, Inc., and that the mortgagee was Mortgage Electronic Registration Systems, Inc., as Novastar’s nominee.

Mr. Verizzo filed an answer containing an affirmative defense that the bank lacked standing to enforce the note. That answer put the bank on notice that its standing was at issue and imposed upon it the burden to prove at trial that it had standing to enforce the note and mortgage. See Dickson v. Roseville Props., LLC, 198 So. 3d 48, 50 (Fla. 2d DCA 2015); see also May v. PHH Mortg. Corp., 150 So. 3d 247, 248 (Fla. 2d DCA 2014) (holding that the plaintiff in a foreclosure action has the burden to prove standing at trial). That burden included proving not only its standing at the time the case was tried but also when the case was filed. May, 150 So. 3d at 248-49.

In the mine-run foreclosure case that comes to this court, the plaintiff’s standing to enforce the note and mortgage hinges on whether the plaintiff is the holder of the note. See § 673.3011(1), Fla. Stat. (2008); see, e.g., Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015). That is the issue in this case as well.[3] Because the bank was not the original lender on the note—Novastar was—it could prove standing as a holder by presenting the note with a blank indorsement or special indorsement naming it as the holder, an assignment of the note to it, or other admissible evidence sufficient to prove that it is in fact the noteholder. See Focht v. Wells Fargo Bank, N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013).

After lengthy pretrial litigation—including two bankruptcies and a pit stop in this court—the case went to trial in July 2015.[4] The bank presented the testimony of an employee of a mortgage servicer engaged by the bank and five documents: (1) a copy of a power of attorney dated April 14, 2014, through which “The Bank of New York Mellon f/k/a the Bank of New York as successor in interest to JPMorgan Chase Bank, N.A.,” granted the servicer the right to act on the bank’s behalf with respect to loans in the trust for which the bank purports to act as trustee here; (2) a copy of the note dated May 11, 2006; (3) a copy of the mortgage; (4) a copy of Mr. Verizzo’s payment history; and (5) a copy of a default notice dated January 14, 2008, which was sent to Mr. Verizzo by a different servicer that identified “US Bank” as the “creditor.” The copy of the note showed Novastar as the lender and contained no blank or special indorsement. Rather, it showed that Novastar was the original owner and holder of a note that had not been negotiated. See §§ 673.1101(1) (identifying the party to whom an instrument is initially payable), .2011(2) (defining the steps Novastar was required to take to negotiate the instrument as transfer of possession and indorsement).[5]

The bank did not introduce any evidence at trial explaining how it became the noteholder. The representative of the servicer did not testify about what happened to the note after Novastar made the loan or how it came to the bank. The bank’s trial evidence thus left significant evidentiary gaps concerning whether the note was negotiated—and, if so, when and by whom—and whether the bank became the holder—and, if so, when and how. There was also no testimony or documentary evidence showing that Mr. Verizzo’s loan was actually a part of the trust for which the bank purports to serve as trustee.

Assuming for argument’s sake that even with these evidentiary gaps, the bank made a prima facie case of its standing at the time of trial, it was nonetheless insufficient to show its standing at the time it filed the foreclosure complaint. On the record the bank made, we know that Novastar was the noteholder when the loan was made in May 2006, but who had authority to enforce the note when the complaint was filed in April 2008 is anybody’s guess. We might speculate based on the bank’s documents that after the loan was made it was put into the trust, that JPMorgan was originally appointed trustee, that the bank became the successor trustee prior to filing, and that the note was negotiated in accord with those transactions. But speculation is all that is. The bank presented no direct or circumstantial evidence to take these assumptions from the level of speculation to the level of prima facie proof that it held the note or otherwise had standing at the time it filed the foreclosure complaint. See Stone v. BankUnited, 115 So. 3d 411, 413 (Fla. 2d DCA 2013) (“[P]laintiff may demonstrate standing by submitting the note bearing a special endorsement in favor of the plaintiff or a blank endorsement, evidence of an assignment from the payee to the plaintiff, evidence of equitable transfer, or other evidence . . . proving the plaintiff’s status as the holder of the note.” (citing McLean v. JP Morgan Chase Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012))).

The bank says that we can find the missing links in two assignments that transferred the mortgage—but not the note—from MERS to the bank dated May 12, 2008, and July 6, 2010, which Mr. Verizzo had admitted into evidence during his defense case. There are two problems here. First of all, the assignments do not purport to transfer the note, and our court has held that an assignment of mortgage that does not also transfer the note, at least standing alone, does not prove that a foreclosure plaintiff has the rights to enforce the note. Caballero v. U.S. Bank Nat’l Ass’n, 189 So. 3d 1044, 1046 (Fla. 2d DCA 2016) (“[T]he assignment was insufficient to show standing because it only purported to assign the mortgage, not the note.”); see also Eaddy v. Bank of Am., N.A., 197 So. 3d 1278, 1280 (Fla. 2d DCA 2016) (holding that plaintiff failed to prove standing where “the assignment of mortgage attached to [the] amended complaint reflects only the transfer of the mortgage and not the note”). Furthermore, even if an assignment of mortgage could, taken with other facts, constitute some quantum of circumstantial evidence that any rights related to the note were also transferred, the assignments here are dated after the filing of the bank’s complaint. Because the assignments came after the bank initiated these proceedings, they do not say anything about whether the bank had standing when it initiated them. See Dickson, 198 So. 3d at 51 (“[P]ostfiling assignments of mortgage . . . could establish only that [the plaintiff] acquired standing in some manner after it filed the complaint.”); see also Russell, 163 So. 3d at 643 (holding that postfiling power of attorney did not establish standing at the time of filing).

The bank also asserts that excerpts of a pooling and servicing agreement dated May 2006 among Novastar, U.S. Bank, and JPMorgan prove its standing at the inception of the case. Even if we agreed with the bank about the import of these excerpts—we do not, but further explanation is unnecessary here—it would be a moot point because they were not admitted into evidence at the trial. See Stoltz, 194 So. 3d at 1098-99 (declining to affirm foreclosure judgment on the basis of an assignment in the court file where assignment had not been admitted into evidence). They were not admitted into evidence because the bank objected to their being admitted, and the trial court sustained that objection. Having invited the trial court to exclude the excerpts of the pooling and servicing agreement from evidence, the bank is in no position to treat them as though they had been admitted into evidence for purposes of appeal. Cf. Tate v. Tate, 91 So. 3d 199, 204 (Fla. 2d DCA 2012) (“[T]he invited error rule prevents [a party] from complaining on appeal about a ruling [it] invited the trial court to make.”).

Mr. Verizzo made a motion for involuntary dismissal based on the bank’s failure to prove standing, which the trial court treated as part of his closing argument. Because the bank failed to make a prima facie case that it had standing at the inception of the case, that motion should have been granted. See Russell, 163 So. 3d at 643; May, 150 So. 3d at 249. Accordingly, we reverse the final judgment of foreclosure and remand the case to the trial court with instructions to enter an order of involuntary dismissal. This resolution renders Mr. Verizzo’s other appellate arguments moot, and we therefore decline to address them.

Reversed; remanded with instructions.

KELLY and BLACK, JJ., Concur.

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

[1] On the day of trial, the trial court substituted “The Bank of New York Mellon” for “The Bank of New York” as the plaintiff. For purposes of determining whether the foreclosing plaintiff had standing at inception, any difference between these two entities is not material because a substituted plaintiff acquires only such standing as the original plaintiff had at the inception of the case. See Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 189 (Fla. 2d DCA 2016) (en banc) (quoting Russell v. Aurora Loan Servs., LLC, 163 So. 3d 639, 642 (Fla. 2d DCA 2015)). For ease of reference, we refer to the appellee here (plaintiff below) as “the bank.”

[2] The lost note was discovered and filed with the court prior to trial. See Verizzo v. Bank of N.Y., 28 So. 3d 976, 977 (Fla. 2d DCA 2010). Although the complaint was not amended to remove the lost note count or to more accurately assert the purported basis for the bank’s standing on the foreclosure count once the note was found, it is clear from the record that the count for reestablishment of a lost note by its owner was not an issue by the time of trial.

[3] The bank has not specifically contended that it was a nonholder in possession with the rights of a holder under section 673.3011(2) for the purposes of standing. We do, however, note that some of its arguments regarding its evidence of proof of standing alternatively might be construed as such. See, e.g., St. Clair v. U.S. Bank Nat’l Ass’n, 173 So. 3d 1045, 1046-47 (Fla. 2d DCA 2015). Regardless, as discussed in this opinion, the evidence was not sufficient to prove when the bank acquired possession of the note or the requisite rights of enforcement.

[4] The trial court originally granted the bank a summary judgment of foreclosure. We reversed that judgment both because the bank failed to comply with the procedural requirements of rule 1.510(c)—it did not serve its summary judgment evidence twenty days before the summary judgment hearing—and because the summary judgment record left genuine issues of material fact as to the bank’s standing to enforce the note and mortgage. See Verizzo, 28 So. 3d at 977-78.

[5] Several years prior to trial, the bank filed a document purporting to be the original note. That document contained an undated special indorsement from Novastar to “J.P. Morgan Chase Bank, as Trustee.” The bank made no effort to have the original or a copy of the note bearing the indorsement admitted into evidence, however, and the trial court thus had before it at trial only a copy of the note without any indorsement. We need not address what this undated, indorsed note may have proved about whether the bank had standing to enforce the note at the time of trial by way of either a second indorsement or as a successor trustee. See § 673.1101(3)(b)(1) (indicating that holdership of a note specially endorsed to a trustee may become payable to a successor trustee). Whatever it may have proved, it would not, without other direct or circumstantial evidence showing that the bank came into possession of the note before the complaint was filed, have proved the bank’s standing at inception. That is because an undated indorsement that is not presented to the court until after the original complaint is filed does not show whether the plaintiff who filed the case held the note at the time it was filed. See Corrigan, 189 So. 3d at 189 (holding that a note with an undated, blank indorsement did not establish that plaintiff had possession of the note at the inception of the case); see also Sorrell v. U.S. Bank Nat’l Ass’n, 198 So. 3d 845, 847 (Fla. 2d DCA 2016) (“Standing cannot be established by simply filing a note with an undated indorsement or allonge months after the original complaint was filed.”).

 

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The Pooling and Servicing Agreement: Why eat just half the enchilada?

The Pooling and Servicing Agreement: Why eat just half the enchilada?

cross posted via clouded titles

Securitization Issues — Throughout the trials and tribulations of pouring over thousands of documents, the same issue keeps popping up in my head.  Why are attorneys claiming to rely ONLY on the Pooling and Servicing Agreement (the “PSA”) to establish REMIC failure and nothing else?

How many cases have you read in the last two years that there was strict reliance on the use of the PSA to win a foreclosure case?

I have read of very few instances that go into extreme detail in an attempt to educate a judge (unless you’re in one of the “sand states”, which got hit the hardest and well before the rest of the nation caught on), who really didn’t major in securities law (unless you happen to be “seated” somewhere in the Southern District of New York), all the while opposing counsel is objecting to entering the PSA into evidence at trial.  At the end of the day, who has the note with the right to enforce it seems to be the bottom line.  This issue has also come under severe scrutiny, because when MERS and securitization are involved, it means the promissory note you signed is now an electronic memory and does not consist of what the bank’s attorneys claim is “the original note”.  (I will save the forensic discussion of promissory notes for another argument and another article!)

Perhaps it’s because some well-meaning individuals out there in the legal world told the attorneys that the crux of their argument was in the PSA.

I say, “No, it’s not just the PSA! You’re only eating half the enchilada!”

I am writing this piece (not for my own self-gratification) for the sake of those who have gotten past Securitization 101.  I know most of the blog readers understand what a PSA is and what it contains.  They subscribed to this blog in the past because there was something worthwhile posted on here, so the assumption is … the PSA to the readers of this blog is at least within their sphere of knowledge.  This may be a little “deep” for those of you reading this post for the first time.

In my travails, I have discovered that the “blind eye” seems to include such terms as “Cut-off Date” and “Closing Date”, when referencing the PSA, yet these terms are not found in the PSA.  They are merely referenced.  To find these two dates, what must one do?   Go to the front of the bloody 424(b)(5) Prospectus and find it within the first few pages of the document’s definitions.

I am not being paid by SECINFO.COM to tell you that it is much easier to search for REMIC information on this website than many of you have experienced on SEC.GOV.  I only use SEC.GOV to order complete certified copies of the 424(b)(5) Prospectus, because I want to eat and digest the whole enchilada. Why?  Because I’m hungry for the truth, that’s why.  I want the truth, the WHOLE truth and nothing BUT the truth (the WHOLE truth).  That means, if I have to peruse a bloody 400+ page prospectus that defines the parameters of how a REMIC behaves, I’m going to get this knowledge in my craw, because it’s going to come in real handy and some point and this is an RMBS Trust we’re talking about, it’s somebody’s house that is affected by what’s in this bloody document!

If man’s thought processes anything like electricity, it’s following the path of least resistance.  There are “securitization gurus” out there in the hinterland that I tip my hat to because they’ve gone above and beyond the call of duty in reading and understanding the entire “enchilada” (the sales pitch), and you know who you are, but they keep pointing to Section 2.01 (or its relative counterpart in some other types of PSA’s) and not referencing (and including as evidence) the WHOLE truth.

I say, the judge needs to “get smart” in order to play the game.  But … most won’t.

I’ve also heard that judges in America really don’t give a shit about you and whether you lose your home. You didn’t make your payments so you deserve to, whether someone else made them for you or not.  Judges just want to clear their court dockets as quickly as possible to convince the populace and hierarchy that keeps putting them on the bench that they are efficient in their duties and that their political careers and pensions are priority #1 (and go play golf and vacation with their families).

If you wonder what others are saying about judges across America, just dial up The Robing Room and see for yourself!

It seems like the foreclosure defense community just wants to “cut to the chase” to inform the judge that the “path of least resistance” is out there.  All of us lazy folk don’t have time to read the whole enchilada.  (“Your Honor, we know you have a full docket today, so out of professional legal courtesy, we’re not going to waste your time … because after all, we’re ‘officers of the court’ and we have a duty to represent the concerns of the court first, the public second and our clients … in last place!  We have a business model to run, Your Honor, and we can’t do that wasting time in court, when we can make money playing the delay game.  Oh, wait!  That’s part of Your Honor’s game too!  Drag the proceeding out as long as possible so the homeowner runs out of money, gives up and walks away, right?  Either way, the banks win!”)

The foregoing thought process sounds like many a pissed-off homeowner that has lost faith in America.  You know what?  I don’t blame you.  I’ve lost faith in America too.  I’ve learned that you cannot depend on the charity of others in your quest to survive. However, we live in a society that condones and promotes such behaviors (it’s called socialism) and the multiculturalized American society gobbles it up like a hot enchilada.  But … they eat it so fast they don’t take the time to digest it and it passes through their systems like “shit through a goose” (to quote Gen. George Patton). Yet these same pissed off homeowners are quick to criticize anyone else that’s trying to do the right thing, as if we’re all destined to be miserable in life.

This is the chief concern when I don’t see the entire 424(b)(5) Prospectus (in certified form) being offered as evidence at trial. One can always “tab” the document with miniature, self-adhesive type notes or make reference to those sections of the document in their written arguments so the judge will see it.  Bankruptcy judges have to deal with this all the time, because they’re concerned about debt, not chain of title.

So the question then becomes: Does securitization actually have anything to do with chain of title?  Do you know the answer?

YES! 

It’s just that Wall Street’s idea of “pure intellectual masturbation” hasn’t permeated into the crevices of America’s primary educational system.  Kids in school today don’t even learn “Checkbook 101”.  Nope!  They just want their allowance so they can go out and blow it on junk.  Wait a minute!  That sounds kind of like Wall Street in 2008 when everyone in the securitization game was being compensated into the millions so they could go out and party in blow, booze and hookers, doesn’t it?  Now, I suppose some of you out there are also picturing Dante’s Inferno, right?  Especially the Third, Fourth and Eighth Circles. 

When it comes to securitization, you simply CANNOT cut corners.  If you’ll notice, the entire 424(b)(5) Prospectus document, in whatever form, has some commonalities:

  1. It was signed under penalty of perjury under the Sarbanes-Oxley (“SOX”) Act.
  2. Virtually ALL of the REMICs have Cut-off and Closing Dates.
  3. The chain of title to the subject property (under attack) probably contains an Assignment of Mortgage or Assignment of Deed of Trust that makes reference to a REMIC by name (if it’s written correctly, some aren’t). This is where the REMIC shows up in the chain of title and becomes a “party” in the “adverse claimants to title” category.
  4. Most if not all of the time, the Assignment in question (also suspect to this very day) was drafted by the employees of the mortgage loan servicer you’re trying to deal with, using MERS or some other “made up” interest so the servicer can “hide behind the scenes”.
  5. All prospectuses make reference (somewhere in the document) of who the “players” in the securitization game are, generally they’re right up front.  These are offered to investors right up front, prior to investing, which also promoted the caveats (there were no guarantees), when the creators of the REMICs knew exacting what they were doing in running the reader around in circles (the “pure intellectual masturbation”) until they’re so confused they don’t know which end of the document is “up”.
  6. All make reference to who collects the money to support the distribution payments to the investors at the other end of the REMIC who claimed to be harmed when the REMIC drags you into court or announces it’s selling your home on the courthouse steps.
  7. In some way, shape or form, most if not all prospectuses contain a Pooling and Servicing Agreement of some sort, which explain HOW mortgage loans are supposed to be conveyed into the trust pool and when.

The problem is, none of the banks ever followed their own rules.  The servicers of the mortgage loans began paying your mortgage loans for you when you hit your financial “tipping point” and couldn’t make them any longer (or wouldn’t because you found out the truth).  When the borrower stops making payments, the servicer starts making the payments for the borrower.  This is mandated by the Prospectus, but again, how convenient THAT was left out of the legal equation brought before the Court.  We couldn’t have the judge thinking some rich uncle was making our mortgage payments now, could we?

The judges just want to give your homes to the bank.  They really don’t have time for details.  Right?

Again, I post the following for your consideration: Ocwen’s Letter to 6 Government Agencies

The foregoing transmission is 9 pages long.  I would suggest, as part of your digestion process of “the whole enchilada”, you focus on the parts of the Prospectus that talk about payments being made to investors to keep the REMIC going.  What happened in 2008 was pure “overload” on Wall Street’s financial system.  When you read this Ocwen transmission, you will probably be infuriated, because this affects NOT JUST OCWEN, but EVERY mortgage loan servicer out there!

Read the 9 pages again!  The servicers are the parties doing the foreclosures in the name of the lender.  The problem is, you don’t have a written agreement with the servicer.  You have a written agreement with the Lender.  If the lender’s out of business, the servicer is still collecting mortgage payments and is still paying the REMIC’s investors.  When you stop making the mortgage payments, along with your taxes and insurance payments, the servicer makes them for you!

In the case of a GSE, like Fannie Mae, Freddie Mac, Ginnie Mae or Sallie Mae (WHAT?  Student loans are securitized too?), they too manage REMICs and are knee deep in securitization failure just like the rest of the published REMICs contained within the SEC’s databases.

THE SECURITIZATION CHAIN

The way that the OCC Asset Securitization Handbook contemplated the path of cash flows through the securitization chain started at the top, with the Borrower.  Even U. S. Bank, N.A. admits the Borrower is a party to the Securitization Chain in its 4-page brochure, here:  US Bank Brochure – Role of the Corporate Trustee

So then, why do bank attorneys in court keep downplaying that the Borrower has nothing to do with the Assignment of Mortgage, when the Borrower clearly is AT THE TOP OF THE CHAIN? (taken from p. 8, virtually right up front, just like the Cut-off and Closing Dates are located in a Prospectus).

The “Originator” and “Servicer” work in tandem with (but independent of) each other to make the loans and then collect the payments so the investors who “buy into” the securitization scheme get paid (on the distribution date, generally the 25th of every month).   The “Rating Agency” issues ratings for the bonds the investors would be able to buy (this is shown in the Prospectus, NOT in the PSA).  How much more evidence do you need that the Borrower’s payments to the chain have everything to do with compliance of the entire Prospectus, even when the Borrower DOESN’T MAKE THE PAYMENTS!

For the purposes of this discussion, we move within the path of the securitization chain to discuss WHO makes your payments when you can’t.

The following item was taken from the front end of the Prospectus (NOT in the PSA, which I why I say ya’ll spend so much time focusing on the PSA, you miss the good shit**):

 

 

So, if you think I’m making this stuff up, think again.  This paragraph (taken out of the front end of a Free Writing Prospectus in conjunction with the REMIC paperwork offered on SECINFO.com, which I subscribe to) explains the same thing that the 9-page letter Ocwen wrote about who makes the payments when the Borrower doesn’t.  So, these are the “baker’s dozen” questions I leave you with:

  1. Is your written contract (the Security Instrument) with the mortgage loan servicer or with the lender?
  2. Does it say anything in your Mortgage or Deed of Trust that the Servicers may change during the life of your loan?
  3. Did anyone tell the mortgage loan servicer to make your payments for you when you couldn’t?
  4. Did the mortgage loan servicer handling your loan tell you that it was making your payments for you when you couldn’t?
  5. Did the foreclosure mill law firm mention in the foreclosure complaint that the servicer made the payments for you?
  6. When you asked the servicer (in discovery or through a QWR) for a payment history, did the servicer disclose ALL the payments made (including the payments the servicer made)?
  7. Did the servicer’s law firm misrepresent the character and status of the debt as being in “default” when it really wasn’t? [FDCPA § 807(2)(A)]
  8. As the result of Question #7, has the servicer been wrongfully trashing your credit reports? (FUTURE CREDIT DAMAGE, actual harm under Spokeo v. Robins)
  9. As the result of Question #7, did the foreclosure mill law firm attempt to collect payments from you that you believe were already paid by the servicer?
  10. As the result of Question #7, did the foreclosure mill law firm allege that the REMIC was the Plaintiff when the servicer had been paying the REMIC’s investors all along?
  11. If the servicer had been making the payments all along, was the REMIC and its investors actually harmed?
  12. In deed of trust states, are you non-judicial foreclosure victims now kicking yourself because you didn’t realize this information was in the Prospectus … and you could have truly fought this?
  13. If you retained an attorney to fight your foreclosure, why didn’t your foreclosure defense lawyer pick up on this?  (Remember, the path of electricity?)

Therefore, it would stand to reason that if everyone stopped making their mortgage payments on known securitization chains, the mortgage loan servicers now in existence would go broke overnight making everyone’s payments, as there isn’t enough money in their coffers to support doing that.  All of the RMBS’s on Wall Street would go under on the distribution date following the borrowers’ loan payment stoppage.

See how easy it would be to collapse part of the U.S. economy?

We’re not talking about the TBTF institutions that started all this garbage, we’re talking about the loan servicers that are the real parties filing foreclosure complaints trying to collect their “servicer advances” before the REMIC itself, which has been getting paid all along, gets any residual payments.  It’s the servicers that are lying to the courts in an attempt to reimburse their coffers for all the money they’ve stolen from everyone’s escrow accounts to keep securitization afloat! 

Eventually however, the investors would get stung.

Ignorance is bliss.

For now, I rest my case.

**The information shown above came from SEC filings on behalf of the Bear Stearns Asset Backed Securities I Trust 2006-AC1.

cross posted via clouded titles

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TFH 6/25 |  10 Easy Ways To Lose a Judicial Foreclosure Case: The Most Common Mistakes Made Defending Against Foreclosure

TFH 6/25 | 10 Easy Ways To Lose a Judicial Foreclosure Case: The Most Common Mistakes Made Defending Against Foreclosure

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

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

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

.

.

Sunday –  June 25

10 Easy Ways To Lose a Judicial Foreclosure Case: The Most Common Mistakes Made Defending Against Foreclosure
———————

Many homeowners fighting foreclosure in court wind up actually defeating themselves by not understanding the law and how the judicial system works.

Since we have many new listeners, on this Sunday’s show John and I will summarize some of the most common pitfalls that homeowners need to avoid to have any chance of saving their home.

We will discuss some of the following common mistakes:

1. Relying entirely upon judicial decisions outside your jurisdiction.

2. Arguing a kooky defense.

3. Making unnecessary admissions.

4. Hiring others to prepare loan modification applications for you.

5. Filing against your lender in federal district court.

6. Disputing standing based solely upon a securitized trust’s PSA cut-off date.

7. Believing that your loan is cancelled just because you sent a TILA cancellation letter to your lender.

8. Falling prey to mortgage rescue scams.

9. Handling your own case pro se.

10. Ignoring letters from your lender and its attorneys and court papers served upon you.

~

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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US Office of the Solicitor General files Amicus Brief in Investor False Claims Suit re: Schneider v JP Morgan Chase

US Office of the Solicitor General files Amicus Brief in Investor False Claims Suit re: Schneider v JP Morgan Chase

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

UNITED STATES OF AMERICA, EX REL. LAURENCE SCHNEIDER, ET AL.,
Plaintiffs,

LAURENCE SCHNEIDER,
Plaintiff-Appellant,

v.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION; JPMORGAN
CHASE & CO.; CHASE HOME FINANCE, LLC,
Defendants-Appellees.

On Appeal from the United States District Court for the District of Columbia

<excerpt>

STATEMENT OF THE CASE

I. False Claims Act

The False Claims Act, 31 U.S.C. § 3729 et seq., is used broadly “in defending the
Federal treasury,” and it is a “powerful tool in deterring fraud.” S. Rep. No. 345, 99th
Cong., 2d Sess. 4 (1986). Congress enacted the FCA in 1863 “with the principal goal
of stopping the massive frauds perpetrated by large private contractors during the
Civil War.” Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 781
(2000) (brackets and internal quotation marks omitted). But the Act was intended to
“reach all types of fraud, without qualification, that might result in financial loss to the
Government.” United States v. Neifert-White Co., 390 U.S. 228, 232 (1968).
Many of the Act’s “prohibitions can be enforced through both criminal and
civil actions by the federal government.” United States ex rel. Heath v. AT&T, Inc., 791
F.3d 112, 116 (D.C. Cir. 2015).1
“In addition, the Act authorizes private individuals—
known as relators—to bring a qui tam civil action ‘in the name of the Government,’
and to share in any damages recovered.” Ibid. (citation omitted); 31 U.S.C.
§ 3730(b)(1), (d); see generally Vermont Agency, 529 U.S. at 781. A civil suit may be
brought either by the Attorney General or a relator seeking civil penalties plus three
times the amount of the government’s damages. 31 U.S.C. § 3729(a), (b)(1).
The FCA imposes civil liability for a variety of deceptive practices involving
government funds and property. Among other things, the Act renders liable any
person who “knowingly presents, or causes to be presented, a false or fraudulent
claim for payment or approval,” 31 U.S.C. § 3729(a)(1)(A); any person who
“knowingly makes, uses, or causes to be made or used, a false record or statement
material to a false or fraudulent claim,” id. § 3729(a)(1)(B); any person who
“knowingly makes, uses, or causes to be made or used, a false record or statement
material to an obligation to pay or transmit money or property to the Government, or
knowingly conceals or knowingly and improperly avoids or decreases an obligation to
pay or transmit money or property to the Government,” id. § 3729(a)(1)(G); and any
person who “conspires” to engage in such acts, id. § 3729(a)(1)(C); see id. § 3729(b)(1)
(defining “knowingly”).

II. Factual Background and Prior Proceedings

A. National Mortgage Settlement
In March 2012, the United States, forty-nine states, and the District of
Columbia filed a complaint and proposed consent judgment in the United States
District Court for the District of Columbia against several mortgage servicers,
including JPMorgan Chase. JA2; United States v. Bank of Am. Corp., 753 F.3d 1335,
1336 (D.C. Cir. 2014) (per curiam).
2
The complaint alleged a variety of misconduct in
the servicers’ home mortgage practices, and the proposed consent judgment
implemented a negotiated settlement. Ibid.; see Dkt. Nos. 10-14, United States v. Bank
of Am., No. 12-cv-361 (D.D.C.).
Under that consent judgment, Chase agreed to pay a penalty; to provide
approximately $3.675 billion in various forms of consumer relief, such as loan
forgiveness; and to comply with certain business practice requirements called
“Servicing Standards.” Consent Judgment, No. 12-cv-361 ¶¶ 3, 5 (D.D.C. Apr. 4,
2012) (Consent J.); Consent J. Ex. D. The United States released a number of claims
but did not release “[a]ny liability based upon obligations created by th[e] Consent
Judgment.” Consent J. Ex. F, § (11)(n).
The consent judgment also contains provisions for monitoring the banks’
compliance. The agreement established a Monitoring Committee, Consent J. Ex. E,
§ B; an Independent Monitor to assess compliance, Consent J. ¶ 7; Consent J. Ex. E
§§ C(1), (5), D; creation of metrics for evaluating compliance with certain servicing
standards, Consent J. Ex. E § C(12), (23) & Sch. E-1; and rules governing
enforcement actions by the parties or Monitoring Committee, id. § J.
The parties agreed that if Chase fails to meet its consumer relief obligations,
Chase would “pay an amount equal to 125% of the unmet commitment,” or 140% in
specific circumstances. Consent J. Ex. D(10)(d).3 With respect to servicing standards
for which there are established metrics, if the Monitor concludes that Chase is
exceeding the allowable error rate, the Monitor notifies Chase of a “Potential
Violation,” and Chase has a right to cure within a set time frame. Consent J. Ex. E,
§§ D(3), (5), E(1)-(6). If Chase cures, there is no other “remedy under th[e] Consent
Judgment . . . with respect to such Potential Violation.” Id. § E(6). If Chase does not
timely cure such a “Potential Violation,” “[i]n the event of an action to enforce
[Chase’s] obligations,” the court can order “non-monetary equitable relief, including
injunctive relief, directing specific performance under the terms of th[e] Consent
Judgment, or other non-monetary corrective action,” and the court “may award”
agreed-to “civil penalties.”4
Id. § J(3)(a), (b). With respect to other alleged
noncompliance—such as violation of servicing standards not subject to a metric or
other obligations—the court may order only non-monetary injunctive relief. Id.
§ J(3), (a); see United States v. Bank of Am., 78 F. Supp. 3d 520, 530 (D.D.C. 2015).
The “Enforcement Terms” also state that Chase’s “obligations under this
Consent Judgment shall be enforceable solely in the U.S. District Court for the
District of Columbia” and that “[a]n enforcement action under th[e] Consent
Judgment may be brought by any Party to this Consent Judgment or the Monitoring
Committee.” Consent J. Ex. E, § J(2). Ordinarily “prior to commencing any
enforcement action, a Party must provide notice to the Monitoring Committee of its
intent to bring an action to enforce th[e] Consent Judgment.” Ibid. The committee
then has “21 days to determine whether to bring an enforcement action.” Ibid. If the
committee declines to do so, “the Party must wait 21 additional days . . . before
commencing an enforcement action.” Ibid.
The United States has not invoked the consent judgment’s procedures or
otherwise asked the district court to enforce the terms of the judgment against Chase.
Based on the information currently available to it, including the reports filed by the
Monitor, the United States is unaware of any violation of the agreed-to terms.

B. Factual Background and Procedural History

1. The plaintiff in this case is a relator who filed a qui tam suit against
JPMorgan Chase under the False Claims Act and similar state laws. JA27, JA39,
JA94-JA116 (Second Am. Compl.). As relevant here, relator alleges that Chase
violated the so-called “reverse” provision of the False Claims Act when Chase claimed
to have complied with various aspects of the National Mortgage Settlement, thereby
avoiding additional payments and penalties required under the consent judgment.
JA27, JA35, JA70-JA75, JA80-JA95. That FCA provision imposes liability on any
person who, among other things, “knowingly makes, uses, or causes to be made or
used, a false record or statement material to an obligation to pay or transmit money or
property to the Government” or who “knowingly conceals or knowingly and
improperly avoids or decreases an obligation to pay or transmit money or property to
the Government.” 31 U.S.C. § 3729(a)(l)(G).5

2. The district court granted Chase’s motion to dismiss. JA1-JA22 (opinion);
JA23 (order). As relevant here, the court held that relator could not sue because he
“failed to exhaust the dispute resolution procedures required by the National
Mortgage Settlement before filing suit.” JA12-JA14. The court reasoned that in a
False Claims Act suit, “Relator stands in the position of the Federal Government,”
and the federal government could not sue Chase before following the consent
judgment’s “mandatory pre-litigation steps.” JA13. In the court’s view, these
included “notice to the allegedly noncompliant bank, the Monitor, and the
Monitoring Committee,” “good faith efforts to reach agreement,” notification of the
Monitoring Committee of intent to file an enforcement action, waiting twenty-one
days for the Monitoring Committee to consider whether it would sue, and then
waiting an additional twenty-one days. Ibid

[…]

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Trump seeks sharp cuts to housing aid, except for program that brings him millions

Trump seeks sharp cuts to housing aid, except for program that brings him millions

WaPO-

President Trump’s budget calls for sharply reducing funding for programs that shelter the poor and combat homelessness — with a notable exception: It leaves intact a type of federal housing subsidy that is paid directly to private landlords.

One of those landlords is Trump himself, who earns millions of dollars each year as a part-owner of Starrett City, the nation’s largest subsidized housing complex. Trump’s 4 percent stake in the Brooklyn complex earned him at least $5 million between January of last year and April 15, according to his recent financial disclosure.

Trump’s business empire intersects with government in countless ways, from taxation to permitting to the issuing of patents, but the housing subsidy is one of the clearest examples of the conflicts experts have predicted. While there is no indication that Trump himself was involved in the decision, it is nonetheless a stark illustration of how his financial interests can directly rise or fall on the policies of his administration.

[WASHINGTONPOST]

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Blockchain: Digitally Rebuilding the Real Estate Industry by Avi Spielman

Blockchain: Digitally Rebuilding the Real Estate Industry by Avi Spielman

Blockchain: Digitally Rebuilding the Real Estate Industry
by
Avi Spielman

ABSTRACT

There are tremendous potential applications for blockchain technology, an innovative distributed
ledger database system, within the real estate industry. This paper will explore one aspectrecording
property titles- by comparing the benefits and limitations of a blockchain with those of
the current record keeping system.

This paper will begin with a brief overview of the current state of the title recording system in
the U.S. followed by a deeper look into the procedures of one rapidly growing American city,
Nashville (Davidson County), Tennessee. The goal is to understand current real estate title
systems and technologies in order to identify their benefits and limitations.

Next, this paper will introduce the concept of blockchain technology, starting with a high level
technical overview of how the technology works, as well as its benefits and limitations. It will
also examine Bitcoin, which operates on the largest blockchain, as a potential model, whose
practical applications may be adapted in creating a more efficient and safer title registry system.
Recommendations will then be made for possible methods of implementing a blockchain-based
registry and how its use might change the way real estate title transactions are handled in
Davidson County, TN in order to determine if the collective benefits outweigh the costs.

The research to date leads to the following conclusions: A blockchain title recording system is
the future of title record keeping and would provide immediate benefits over the current title
recording system, with additional benefits accruing in the future as blockchain technology grows
in acceptance. However, at the moment, these benefits do not yet outweigh the costs and
challenges associated with implementing a prototype blockchain title registry system in
Davidson County, or elsewhere in the country. That being said, steps can, and should be taken
now to lay the foundation for a blockchain system.

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Thomas Gaffney: THE PEER-TO-PEER BLOCKCHAIN MORTGAGE RECORDING SYSTEM: SCRAPING THE MORTGAGE ELECTRONIC REGISTRATION SYSTEM AND REPLACING IT WITH A SYSTEM BUILT OFF OF A BLOCKCHAIN

Thomas Gaffney: THE PEER-TO-PEER BLOCKCHAIN MORTGAGE RECORDING SYSTEM: SCRAPING THE MORTGAGE ELECTRONIC REGISTRATION SYSTEM AND REPLACING IT WITH A SYSTEM BUILT OFF OF A BLOCKCHAIN

THE PEER-TO-PEER BLOCKCHAIN MORTGAGE RECORDING SYSTEM: SCRAPING THE MORTGAGE ELECTRONIC REGISTRATION SYSTEM AND REPLACING IT WITH A SYSTEM BUILT OFF OF A BLOCKCHAIN.

Spring, 2017

Wake Forest Journal of Business and Intellectual Property Law

17 Wake Forest J. Bus. & Intell. Prop. L. 349

Author

Thomas Gaffney +

Excerpt

I. INTRODUCTION

This Comment examines the mortgage recording system and suggests that the current system–from registering and tracking the generation of mortgages, to the transfer of mortgages, and the securitization of those mortgages–is inherently flawed. In order to overcome these obstacles, the current system should be replaced with a new decentralized peer-to-peer blockchain network. This form of peer-to-peer recording technology was first developed in the summer of 2008 and is the underlying technology for the ever-increasingly popular cryptocurrency, Bitcoin. 1 Bitcoin is completely decentralized in the sense that the network is not run on one specific server owned by an entity, but rather it is run by every single person or computer operating on the Bitcoin network. 2 The network is maintained by Bitcoin “miners” who are rewarded by a distributed consensus system to confirm and verify transactions between users on the network and for recording those transactions to the shared public ledger otherwise known as the Blockchain. 3

The biggest challenge facing a cryptocurrency is the threat of someone making an exact digital copy of the denomination and selling both the fake copy and real version, which undermines the entire system of trust in the cryptocurrency. 4 The Blockchain eliminates this issue by creating a system to verify, record, and track the integrity and chronological order of each transaction on the network. 5“The integrity and the chronological order of the [B]lockchain are enforced with cryptography.” 6 Each time a …
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CenturyLink Faces Class-Action Lawsuit Seeking Up to $12 Billion For Wells Fargo Like Scheme

CenturyLink Faces Class-Action Lawsuit Seeking Up to $12 Billion For Wells Fargo Like Scheme

Bloomberg-

CenturyLink Inc., sued last week by a former employee for allegedly running a sales incentive scheme and firing her for drawing attention to it, is now the subject of a class-action complaint seeking damages as high as $12 billion.
The complaint, which comes as the Monroe, La., telecommunications company is in the midst of a $34 billion merger with Level 3 Communications Inc., seeks to establish a class of consumers harmed by an alleged high-pressure sales culture. Last week’s self-proclaimed whistleblower, Heidi Heiser, says such a culture left customers paying millions of dollars for accounts they didn’t request.
The new lawsuit, filed in the central district of California late Sunday night, cites Heiser’s suit, as well as similar accusations posted on social media and consumer review websites by people identifying themselves as CenturyLink customers, and accuses CenturyLink of fraud, unfair competition, and unjust enrichment.
“Ms. Heiser’s allegations of what she observed, and what CenturyLink corporate culture encouraged, are consistent with the experiences of hundreds of thousands and potentially millions of consumers who have been defrauded by CenturyLink,” the complaint states. “It is estimated that the damages to consumers could range between $600 million and $12 billion, based on CenturyLink’s 5.9 million subscribers.”
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TFH 6/18 | Special Re-Broadcast of the Exclusive Tell-All Interview with Bank of America Robo Whistle Blower — Identifying Alleged Manufacturing Plants Nationwide Creating Counterfeit Loan Documents

TFH 6/18 | Special Re-Broadcast of the Exclusive Tell-All Interview with Bank of America Robo Whistle Blower — Identifying Alleged Manufacturing Plants Nationwide Creating Counterfeit Loan Documents

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

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

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

.

.

Sunday –  June 18

Special Re-Broadcast of the Exclusive Tell-All Interview with Bank of America Robo Whistle Blower — Identifying Alleged Manufacturing Plants Nationwide Creating Counterfeit Loan Documents

———————

Trial and appellate judges throughout the United States continue to unthinkingly appear to allow their courts to be used as collection agencies for crooks who constantly seem to launder real estate titles through the judicial issuing and/or enforcing seemingly unthinkingly of foreclosure-generated false deeds.

Succumbing to the word wizardry of attorneys who have sold out to big buck pretender lenders, our courts have been unwittingly invoking every inapplicable legal doctrine imaginable to protect in effect criminal enterprises preying on America’s homeowners, if 250 billion dollars in regulatory fines the past ten years is evidence of anything.

In the protection, for instance, of false deeds, sometimes mistakenly thought necessary to safeguard real estate markets, judicial opinions today are peppered with numerous prophylactic theories protective of false real estate titles, such as those applied artificially in this area of the law distinguishing between constitutional versus prudential standing, and void versus voidable instruments, and through the application of such otherwise inapplicable doctrines such as res judicata, collateral estoppel, issue preclusion, laches, and the assumed superior equities of allegedly bonafide third-party purchasers.

However, all such concepts protecting “clouded titles” are mere smokescreens used by institutionally timid judiciaries often simply self-imprisoned by the otherwise often inapplicable doctrine of stare decisis, unwilling to break from a Rule Ritual tradition and recognize the obvious.

What they are really enforcing are not merely “clouded titles,” but actually “counterfeit titles” of no force or effect whatsoever, no matter how prettied up with judiciary and recording office imprimatur stamps or red-ribboned title insurance policies they may be, anymore than courts accord any value whatsoever to good looking counterfeit currency.

Yet “counterfeit titles” are the principal currency of the hidden secondary mortgage market casinos in the United States who through incompetence or outright theft resort to manufacturing false promissory notes, false endorsements, false allonges, false mortgage assignments, and even false default notices, often no more artfully printed than old fashion Monopoly money, in order to maneuver their way through our courts, printing phony loan documents in the same manner that counterfeiters churn out phony money.

But there is one major difference. Currency counterfeiters when caught are prosecuted and go to prison. Robos and their organ grinders aren’t. They are financially rewarded.

But the courts are not the only ones to blame. After all, it is the principal job of American legislatures and not the courts to make law.

This Sunday’s revealing show exclusively features a former robo employee of the Bank of America, exposing in his own words, if he is to be believed, how he was hired to manufacture falsely sworn loan documents, and he even identifies the location of some of the Bank of America’s alleged counterfeiting plants nationwide.

Are any legislators, judges, or prosecutors listening? Shouldn’t homeowners be entitled to learn the truth before they are evicted?

~

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII
6:00 PM PACIFIC
9:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

 

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Deutsche Bank reaches $170 million Euribor-rigging settlement

Deutsche Bank reaches $170 million Euribor-rigging settlement

Reuters-

Deutsche Bank AG (DBKGn.DE) will pay $170 million to settle an investor lawsuit claiming it conspired with other banks to manipulate the benchmark European Interbank Offered Rate and related derivatives.

A preliminary settlement was filed on Monday with the U.S. District Court in Manhattan, and requires a judge’s approval.

It follows similar settlements with Barclays Plc (BARC.L) and HSBC Holdings Plc (HSBA.L) for a respective $94 million and $45 million, which have won preliminary court approval.

Euribor is the euro-denominated equivalent of Libor, a benchmark for setting rates on hundreds of trillions of dollars of credit cards, student loans, mortgages and other debt.

[REUTERS]

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Wells Fargo Is Accused of Making Improper Changes to Mortgages

Wells Fargo Is Accused of Making Improper Changes to Mortgages

NYT-

Even as Wells Fargo was reeling from a major scandal in its consumer bank last year, officials in the company’s mortgage business were putting through unauthorized changes to home loans held by customers in bankruptcy, a new class action and other lawsuits contend.

The changes, which surprised the customers, typically lowered their monthly loan payments, which would seem to benefit borrowers, particularly those in bankruptcy. But deep in the details was this fact: Wells Fargo’s changes would extend the terms of borrowers’ loans by decades, meaning they would have monthly payments for far longer and would ultimately owe the bank much more.

Any change to a payment plan for a person in bankruptcy is subject to approval by the court and the other parties involved. But Wells Fargo put through big changes to the home loans without such approval, according to the lawsuits.

[NEW YORK TIMES]

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WOODLANDS COMMUNITY ASSOC., INC. v. Mitchell, NJ: Appellate Div. | defendant here in winterizing the unit and changing the locks do not serve to deem it a mortgagee in possession and do not render defendant responsible for the unpaid condominium fees and assessments

WOODLANDS COMMUNITY ASSOC., INC. v. Mitchell, NJ: Appellate Div. | defendant here in winterizing the unit and changing the locks do not serve to deem it a mortgagee in possession and do not render defendant responsible for the unpaid condominium fees and assessments

WOODLANDS COMMUNITY ASSOCIATION, INC., Plaintiff-Respondent,
v.
ADAM T. MITCHELL, Defendant, and
NATIONSTAR MORTGAGE, LLC, and U.S. BANK, N.A., Successor Trustee to Bank of America, N.A. as Successor to LaSalle Bank, N.A. as Trustee for the Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificate Series 2007-3, Defendant-Appellant.

Docket No. A-4176-15T2.
Superior Court of New Jersey, Appellate Division.

Argued April 24, 2017.
Decided June 6, 2017.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. DC-2766-14.

Kathleen Cavanaugh argued the cause for appellant (Sandelands Eyet LLP, attorneys; Robert D. Bailey, of counsel and on the briefs).

Tiffany L. Byczkowski argued the cause for respondent (McGovern Legal Services, LLC; Ms. Byczkowski, on the brief).

Before Judges Sabatino, Currier, and Geiger.

The opinion of the court was delivered by

CURRIER, J.A.D.

We are asked to determine whether a lender’s assignee that takes possession of a condominium unit when the owner/mortgagor has defaulted on the loan, and thereafter winterizes the unit and changes the locks, is considered a “mortgagee in possession” of that unit, responsible for the payment of condominium fees and assessments. Because we conclude that those discrete actions are not sufficient to render the lender’s assignee a mortgagee in possession of the unit, we reverse the entry of summary judgment.

In March 2007, Adam Mitchell purchased a condominium unit in a property managed by plaintiff, Woodlands Community Association, Inc. (Association), and executed a mortgage encumbering the unit. After several assignments not pertinent to this matter, the mortgage was assigned in July 2013 to defendant, Nationstar Mortgage LLC.

Mitchell defaulted on his obligations under the mortgage loan and vacated the unit.[1]Mitchell also owed substantial sums to the Association for the unpaid monthly fees and other condominium assessments. Subsequent to his default, Nationstar replaced the locks on the unit and winterized the property.[2]

The Association instituted an action in April 2014 against Mitchell to recover the monthly maintenance association fees for general services it had provided to the property.[3] Several months later, plaintiff amended its complaint to include defendant, alleging that the lender’s assignee was responsible for the association fees as it was in possession of the property.

Both plaintiff and defendant moved for summary judgment. On April 19, 2016, the trial court granted summary judgment in favor of the Association, determining that defendant was a mortgagee in possession, and therefore, liable for the maintenance fees. The trial judge reasoned that no genuine issues of material fact existed as “[defendant held] the keys, and no one else can gain possession of the property without [defendant’s] consent. This constitutes exclusive control, which indicates the status of mortgagee in possession.” The judge also awarded attorney’s fees. This appeal followed.

On appeal, defendant argues that changing the locks and winterizing the condominium unit did not render it a mortgagee in possession of the property. We agree.

Our “review of a trial court’s grant of summary judgment is de novo.” Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). We must consider whether there are any material factual disputes and, if not, whether the facts viewed in the light most favorable to the non-moving party would permit a decision in that party’s favor on the underlying issue. See Brill v. Guardian Life Ins., 142 N.J. 520, 540 (1995). “[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis.” Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 385 (2010).

After default by a mortgagor on a property, the lender or its assignee has “the right of possession, subject to the mortgagor’s equity of redemption.” McCorristin v. Salmon Signs, 244 N.J. Super. 503, 508 (App. Div. 1990) (citing Guttenberg Sav. & Loan Ass’n v. Rivera, 85 N.J. 617 (1981)). The mortgagee, however, is not the owner of the property unless there is a foreclosure and sale of the premises to the mortgagee. Guttenberg, supra, 85 N.J. at 630. If a mortgagee is determined to be in possession of the property, then the mortgagee is “liable for delinquent condominium common charges, which had accrued against the property’s legal owner, for services furnished during the mortgagee’s possession and control of the premises.” Woodview Condo. Ass’n, Inc. v. Shanahan, 391 N.J. Super. 170, 173 (App. Div. 2007).

Whether a mortgagee or its assignee is in possession is determined on a case-by-case basis. “[T]he acts of a mortgagee under the circumstances, determine whether or not possession and management of the premises have been undertaken by the mortgagee.” Scott v. Hoboken Bank for Sav., 126 N.J.L. 294, 298 (Sup. Ct. 1941). In Scott, the bank mortgagee had taken over the collection of the rents from the tenants and was paying the bills and making repairs in the building. Id. at 296. The Court found the bank had become a mortgagee in possession, stating that when the mortgagee “take[s] out of the hands of the mortgagor the management and control of the estate[,]” the mortgagee becomes a mortgagee in possession. Id. at 298.

In Woodview, supra, 391 N.J. Super. at 174, the mortgagee in possession had rented out the units and was collecting rents on them. We found the mortgagee to be in control and possession of those units, and therefore, responsible for the monthly condominium fees.

We must assess then whether defendant exercised the necessary level of control and management over the property to deem it a mortgagee in possession. Defendant here has not occupied the unit, is not collecting rents or any other profits, nor is it making repairs. It cannot be argued that defendant’s actions of winterizing the property and changing the locks were the equivalent of the multitude of actions and responsibilities undertaken by the mortgagees in Scott and Woodview.

Plaintiff contends, however, as did the trial judge, that the sole act of changing the locks renders defendant a mortgagee in possession as the action demonstrated that no one else could enter the unit without the consent of defendant, thus conferring upon it exclusive control. We disagree.

The use of the word “possession” in the designation “mortgagee in possession” is somewhat misleading. See 30 New Jersey Practice, Mortgages § 21.10, at 132 (Myron C. Weinstein) (2d ed. 2000) (citing George E. Osborne, Handbook on the Law of Mortgages § 162 (2d ed. 1970)) (stating that dominion and control are more descriptive of a mortgagee in possession, not actual possession). Indicia of control and management include elements of possession, operation, maintenance, use, repair, and control of the property such as paying bills or collecting rents. We are satisfied that the minimal efforts taken here by defendant to secure its interest in the mortgaged property are not sufficient to convert itself into a mortgagee in possession. Defendant has not taken over the control and management of the unit nor exercised the requisite dominion over the property short of securing the unit.

Upon Mitchell’s default on the mortgage, defendant was required to protect its collateral, the value of its security. See N.J.S.A. 46:10B-51 (obligating a lender or its assignee to maintain a property in foreclosure proceedings “to such standard or specification as may be required by state law or municipal ordinance.”). In addition to paying the insurance premiums and real estate taxes, defendant sought to prevent damage to the unit by winterizing the property and changing the locks. In this situation, the mortgagee has taken on the costs and borne the burden of the abandoned property. It has not availed itself of the benefits of the Association, as plaintiff argues, but rather its actions in protecting its security serve to benefit the other homeowners. Incidents of vandalism or an occurrence of frozen pipes in the vacant unit would likely lead to damage to adjoining properties. Defendant here is not benefitting from the limited actions it has taken to secure its collateral; it is simply protecting its rights.

Plaintiff argues alternatively that defendant is responsible for the unpaid assessments under equitable theories. In Woodview, supra, we advised that equitable considerations supported our determination that the mortgagee in possession, who was collecting rents on the two properties, should be responsible for the condominium assessments. 391 N.J. Super. at 178. We stated: “In our view, having enjoyed the benefit of these goods and services throughout his possession and control of the premises, and consistent with the rights and duties of mortgagees in possession generally, defendant suffers the burden of their cost.” Ibid. (emphasis added).

There was no dispute in Woodview as to the designation of “mortgagee in possession.” The only issue presented for resolution was whether the mortgagee in possession was responsible for the unpaid condominium fees. We are satisfied that our conclusion today is consistent with Woodview as we have deemed defendant not in possession or control of the property and not a mortgagee in possession.

Nor are the equitable doctrines of unjust enrichment and quantum meruit applicable in these circumstances. To establish unjust enrichment, plaintiff must show that it expected remuneration from defendant at the time it performed or conferred a benefit on defendant and that the retention of that benefit without payment would be unjust. VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994).

Recovery under quantum meruit similarly rests on the principle that one party should not be allowed to be enriched unjustly at the expense of another. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992). Recovery under both of these doctrines requires a determination that defendant has benefitted from plaintiff’s performance. It is undisputed that there was no express contract in place between plaintiff and defendant for the provision of services. Rather, the services furnished by the Association are provided for the upkeep of the entirety of the Association’s property. Defendant was not a member of the Association, and therefore, plaintiff could not have expected remuneration from it. Without defendant being designated a mortgagee in possession, we fail to see the basis of an implied contract to satisfy the equitable doctrines. Cf. Essex Cleaning Contractors, Inc. v. Amato, 127 N.J. Super. 364, 367 (App. Div.), certif. denied, 65 N.J. 575 (1974) (finding that a mortgagee determined to be in possession of the property “may be liable for services rendered to him in connection with the property during his occupancy thereof on the basis of an express or implied contract.”).

We, therefore, conclude that the minimal actions taken by defendant here in winterizing the unit and changing the locks do not serve to deem it a mortgagee in possession and do not render defendant responsible for the unpaid condominium fees and assessments. Although not raised in the argument to the trial court nor in the appellate briefs, plaintiff suggested to us at the time of oral argument that we should impose some parameters on defendant’s conduct. For example, plaintiff suggests a requirement that the mortgagee must place the defaulted unit up for sale within a certain timeframe after the entry of a final judgment of foreclosure. If a mortgagee is dilatory after the entry of a final judgment of foreclosure in proceeding to sale or has refused to go to sale on the unit, that conduct might result in the imposition of responsibility for the Association fees. While these arguments might bear some merit in a future discussion, we decline the invitation to expand on our conclusion on this record as it is void of any information regarding the circumstances surrounding the foreclosure proceeding or any events following the final judgment. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (“An issue not briefed on appeal is deemed waived.”).

We reverse the ruling granting summary judgment to plaintiff, and remand to the trial court for the entry of summary judgment on defendant’s motion.

Reversed and remanded. We do not retain jurisdiction.

[1] Final judgment was entered in the foreclosure action in December 2015. The parties advised at the time of oral argument on the appeal that the property had not been listed for sale.

[2] “Winterizing” entails draining the pipes, turning off the water and setting the thermostat for heat to protect the pipes.

[3] Plaintiff and Mitchell resolved their claims in May 2015.

 

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Inside Wells Fargo’s Plan to Fix Its Culture Post-Scandal

Inside Wells Fargo’s Plan to Fix Its Culture Post-Scandal

Fortune-

When news of the Wells Fargo fake-­accounts scandal broke this past September, the company’s stock responded as it had for much of the year: It rose.

A U.S. congressman would soon label the bank “a criminal enterprise,” late-night television hosts would bash it mercilessly, and plaintiffs would file lawsuits that the company recently estimated could cost it billions of dollars. Yet on that Thursday in September—as one of the stranger and more outrageous banking scandals in memory was being revealed to the world—Wells Fargo’s share price ticked merrily upward.

Investors merely yawned at the revelation that its employees had created as many as 2.1 million phony deposit and credit card accounts for unwitting customers—a “widespread illegal practice,” in the words of the Consumer Financial Protection Bureau, that provoked that government regulator to slam the bank with its largest-ever penalty, a $100 million fine; the bank also paid $85 million to settle with the Los Angeles City Attorney and the Office of the Comptroller of the Currency. Wall Street analysts were as nonplussed as investors; none of the 30-plus sages who cover the company—No. 25 on this year’s Fortune 500—issued any urgent reassessments. Even three weeks later, with little break in the scalding headlines, John Stumpf, then Wells Fargo’s CEO, was calmly telling a House committee that the scandal was “absolutely immaterial.”

[FORTUNE]

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

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