H/T LivingLies

This since has been settled and you may read this here: Hagens Berman: Two BofA Fraud Whistleblowers Settle Claims, Including Former LandSafe/Countrywide Employee Who Earned $14 Million Reward — BAC

But as Neil states, Read, plagiarize This, and use it

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via- Armstrong Kellett Bartholow P.C.

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ENZO BIBOLOTTI

v.

AMERICAN HOME MORTGAGE
SERVICING, INC., et. al.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Defendants’ Motion for Summary Judgment (Dkt. #53),
Plaintiff’s Motion for Partial Summary Judgment (Liability Only) (Dkt. #55), Defendants’
Objections to, and Motion to Strike Portions of, the Affidavit of Enzo Bibolotti (Dkt. #66), and
Plaintiff’s Motion to Strike the Affidavit of Cindi Ellis (Dkt. #67).

BACKGROUND

In February 2006, Plaintiff and Jessica Bibolotti sought and obtained a mortgage loan
(the “Loan”) in connection with the property located at 3668 Braeden Court, Middleburg, Florida
32068 (the “Property”) (Dkt. #53 at Ex. A-1). The borrowers executed an Adjustable Rate Note
(the “Note”) in the amount of $200,000, and a Mortgage (the “Mortgage”) securing the
indebtedness (Dkt. #53 at Exs. A-1 and A-2).

The original lender in connection with the Loan was Option One Mortgage Corporation
(“Option One”). Id. Option One subsequently indorsed the Note in blank and transferred the
Note to Deutsche Bank National Trust Company, as trustee for Soundview Home Loan Trust
2006-OPT 2, Asset Backed Certificates, Series 2006-OPT 2 (“Deutsche”). Deutsche became the
owner of the Note on April 1, 2006, and is currently the owner of the Note indorsed in blank, and
the current creditor in connection with the Loan.

In July of 2008, Option One transferred the servicing rights on the Loan to American
Home Mortgage Servicing, Inc. (“AHMSI”), and AHMSI began servicing the Loan. At the time
the servicing was transferred to AHMSI, the Loan was current and was not in default.

On August 12, 2010, Plaintiff filed his Voluntary Chapter 7 Petition for Bankruptcy,
styled In re Bibolotti, Case No. 10-42702, in the United States Bankruptcy Court for the Eastern
District of Texas, Sherman Division (the “Bankruptcy Proceeding”) (Dkt. #53 at Ex. E-2).
Plaintiff contends he was current on his mortgage prior to his bankruptcy. In addition, Plaintiff
vacated the Property prior to moving to Texas and prior to filing bankruptcy and did not return.
Plaintiff scheduled the debt in connection with the Loan as due and owing to AHMSI, and
indicated in his statement of intentions that he wished to surrender the Property (Dkt. #53 at Ex.
E-2). On November 21, 2012, the Bankruptcy Court entered its Order granting Plaintiff’s
discharge in the Bankruptcy Proceeding. Id. at Ex. E-5.

Following Plaintiff’s discharge, Defendants sent numerous communications to Plaintiff.
On November 26, 2010, Defendant G. Moss & Associates, LLP (“Moss”) sent Plaintiff one letter
containing a notice of default and acceleration, and notice of opportunity to cure in connection
with the foreclosure. Id. at Ex. B-1. This is the only communication Plaintiff alleges Moss sent.
On November 26, 2010, December 28, 2010, and February 14, 2011, AHMSI and Deutsche sent
Plaintiff letters regarding a loan modification under the Home Affordable Modification Program
(“HAMP”) or other various “loss mitigation” options. Id. at Exs. A-6, A-9, C-2. On January 19,
2011, February 14, 2011, August 17, 2011, February 15, 2012, and August 17, 2012, AHMSI
and Deutsche sent Plaintiff letters regarding an interest rate adjustment with the Loan. Id. at Exs.
A-9, C-1. On January 25, 2011, AHMSI and Deutsche sent Plaintiff a letter regarding insurance
on the Property. Id. at Exs. A-9, C-3. In addition, on May 31, 2011, August 18, 2011, August
29, 2011, and August 30, 2011, representatives from AHMSI attempted to call or called
Plaintiff.1 Id. at Ex. A-7. Finally, beginning in September 2010 and continuing through April of
2011, AHMSI reported Plaintiff’s default history in connection with the Loan.2
Defendants received notice of Plaintiff’s bankruptcy filing and participated in the
bankruptcy by filing a motion for relief from stay. Plaintiff did not initiate or invite any of the
post-discharge communications from Defendants. In addition, Defendants had notice that
Plaintiff intended to surrender his property in bankruptcy.

[...]

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2013

JEROME SAVER and BEA SAVER,
Appellants,

v.

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION AS ACQUIRER
OF CERTAIN ASSETS AND LIABLITIES OF WASHINGTON MUTUAL
BANK FROM THE FEDERAL RECEIVER,
Appellee.

No. 4D12-2069
[May 15, 2013]

DAMOORGIAN, J.

Appellants, Jerome and Bea Saver, pro se, appeal the trial court’s
order granting final judgment of foreclosure in favor of Appellee, JP
Morgan Chase Bank, National Association, as Acquirer of Certain Assets
and Liabilities of Washington Mutual Bank From the Federal Deposit
Insurance Corporation, Acting as Receiver (“JP Morgan”). We reverse.
The underlying cause is a foreclosure action. After being served with
the foreclosure complaint, Appellants moved to dismiss the case for lack
of standing. Appellants asserted in their motion that the complaint did
not “allege or indicate that [JP Morgan] owns the note and mortgage
which are the subjects of the [JP Morgan’s] Complaint.” JP Morgan
moved for summary judgment, without establishing when it became the
holder or owner of the note. On the day of the hearing on the motion for
summary judgment, Appellants filed a response in which they again
raised lack of standing. Nothing in the record suggests that the trial
court had the benefit of the response. The trial court entered summary
judgment in favor of JP Morgan. Appellants moved for rehearing
asserting that there were issues of material fact regarding JP Morgan’s
standing to bring the cause of action. The trial court summarily denied
the motion. This appeal follows.

A plaintiff seeking foreclosure in a mortgage proceeding must
establish that it had standing to foreclose at the time it filed suit.
McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla.
holder of the mortgage at the time it filed suit. Id. If the plaintiff’s name
is not on the mortgage, it can establish standing by proving that the
mortgage was either assigned or equitably transferred prior to the date it
filed the complaint. Id. The following evidence is sufficient to establish
standing in such a scenario: 1) a special endorsement on the note in
favor of the plaintiff or a blank endorsement, 2) evidence of an
assignment from the payee to the plaintiff, or 3) an affidavit of ownership.
Id. at 174.

Here, J P Morgan’s affidavits were executed after it filed suit.
Additionally, they did not state when JP Morgan became the owner of the
note nor did they indicate that JP Morgan was the owner of the note
before it filed suit. Thus, JP Morgan failed to submit evidence that it
held the mortgage at the time it filed suit, and the trial court erred in
granting summary judgment in its favor.

Reversed and Remanded.

STEVENSON and CONNER, JJ., concur.
* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana Lewis, Judge; L.T. Case No.
502010CA015885XXXXMB.

Jerome Saver, Boca Raton, pro se.

No appearance for appellee.
Not final until disposition of timely filed motion for rehearing.

So lets get this straight. LPS gets caught committing massive fraud by fabricating mortgage documents and now is allowed to continue to provide government sponsored entities  services? What is wrong with this picture? Government hard at work.

Either links below will work but this is unfreakinbelievable!

HW-

Lender Processing Services unveiled its Workout Interaction Tool, an online application that transfers data from its managed services provider servicing system to and from Fannie Mae’s Servicing Management Default Underwriter platform.

The new tool allows mortgage servicers to access SMDU to provide consistent, real-time decisions on loan modifications and other solutions for homeowners with payment challenges.

[HOUSING WIRE]

Fannie Mae-

Fannie Mae Tool Streamlines Foreclosure Prevention Efforts

Keosha Burns

202-752-7840

WASHINGTON, DC – Fannie Mae (FNMA/OTC) introduced Servicing Management Default Underwriter™ (SMDU™), a tool to help mortgage servicers work faster and more consistently with homeowners to prevent foreclosure.  This technology, a counterpart to Fannie Mae’s widely used Desktop Underwriter® for mortgage originations, breaks new ground by evaluating a homeowner’s financial situation and determining what options are available to prevent foreclosure.

“SMDU addresses several challenges the servicing industry has faced in recent years by eliminating a manual and resource-intensive process for servicers while improving accuracy and consistency,” said Leslie Peeler, Senior Vice President of Fannie Mae’s National Servicing Organization. “So far, adoption has been voluntary and we are pleased a number of leading technology providers and servicing partners have implemented SMDU. There are several large servicers working towards adoption this year. Servicers should anticipate that adoption will be required at some point in the near future. SMDU serves the interests of homeowners, servicers and taxpayers. The bottom line is that we want servicers to prevent as many foreclosures as possible and provide excellent service.”

[FANNIE MAE]

My brain hurts. Speechless, more like.

HuffPO-

Apparently it never occurred to Attorney General Eric Holder that the Associated Press might be “too big to fail.” If it had, then his Justice Department probably never would have investigated it.

The AP isn’t just any news agency. It’s the largest one in the United States and one of the three largest in the world, along with Great Britain’s Reuters and Agence France-Presse. And it is, understandably enough, angry.

So are journalists who work for other outlets, along defenders of a free press and supporters of an informed citizenry. Journalists must be free of direct or implied intimidation if democracy is to work properly. Correspondents who cover this administration will often admit privately that they do feel intimidated.

“Twice as much as all previous administrations combined”

A free press sometimes makes powerful people uncomfortable, and even causes them considerable inconvenience. Actions against journalists must be very carefully weighed against democratic principle and fundamental freedoms. Instead, this White House has been as zealous as its Republican predecessors — in many ways, more so — both in its pursuit of low-level officials who leak information to reporters, and in its pursuit of reporters themselves.

[HUFFINGTON POST]

Denver Post-

A federal judge on Tuesday formally stopped the foreclosure auction of an Aurora woman’s house, leaving unanswered whether he can determine if a part of Colorado’s foreclosure laws is unconstitutional.

While U.S. District Judge William J. Martínez’s order enjoins U.S. Bank, the trustee on Lisa Kay Brumfiel’s mortgage, from seeking a public-trustee foreclosure, it doesn’t stop the bank from pursuing her house the old-fashioned way — via a lawsuit in state court.

The bank conceded to the injunction late Monday because, lawyers said in a court filing, it had already closed the foreclosure case it filed against Brumfiel with the Arapahoe County public trustee’s office more than 18 months ago. Additionally, the bank said it has requested a state judge to rescind his order to sell the house.

[THE DENVER POST]

Lets see what they say because these criminals were their clients!

HuffPO-

Sen. Elizabeth Warren (D-Mass.) raised the stakes of her quest to find out why a single Wall Street bank has not been prosecuted in the aftermath of the financial crisis Tuesday, sending a letter to the heads of three federal agencies.

Warren, a member of the Senate Committee on Banking, Housing & Urban Affairs asked Attorney General Eric Holder, current Securities and Exchange Commission Chairwoman Mary Jo White and Federal Reserve Chairman Ben Bernanke whether they had done any cost-benefit research into prosecuting a bank versus settling with one, which is equivalent to a slap on the wrist for a profitable financial institution.

“Have you conducted any internal research or analysis on trade-offs to the public between settling an enforcement action without admission of guilt and going forward with litigation as necessary to obtain such admission and, if so, can you provide that analysis to my office?” Warren said in the letter.

[HUFFINGTON POST]

Scribd

image: AP

Read the order here: Mbaku et al v. Bank of America | Challenge to the constitutionality of Rule 120 of the Colorado Rules of Civil Procedure is certified to the Colorado Attorney General

Denver Post-

A second federal lawsuit contesting the constitutionality of Colorado’s foreclosure laws has emerged.

Unlike the case of an Aurora woman who obtained an interim federal injunction against the foreclosure auction of her house, the other involves a federal judge who decided a Denver man’s 14th Amendment guarantee of due process was in question.

U.S. District Judge Philip Brimmer last week dismissed the entirety of John Mbaku’s complaint against Bank of America that challenged the bank’s right to foreclose on his condominium. Brimmer determined there was a constitutional issue, though Mbaku didn’t bring it up specifically.

[THE DENVER POST]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer
Civil Action No. 12-cv-00190-PAB-KLM

JOHN M. MBAKU,
LUVIBIDILA JOLIE LUMUENEMO,
Plaintiffs,

v.

BANK OF AMERICA, NATIONAL ASSOCIATION,
as successor by merger to BAC Home Loans Servicing, LP
f/k/a Countrywide Home Loans Servicing LP,
Defendant.

__________________________

ORDER CERTIFYING MATTER TO THE COLORADO ATTORNEY GENERAL
__________________________

In the Court’s February 1, 2013 Order [Docket No. 26], the Court declined to
dismiss the claim advanced by plaintiffs John M. Mbaku and Luvibidila Jolie
Lumuenemo that Colorado Rule of Civil Procedure 120 violates the due process clause
of the Fourteenth Amendment.1 Docket No. 26 at 18-19; see also Docket No. 1 at 2-3,
¶¶ 4-6.

Section 2403(b) of Title 28 of the United States Code provides that:

In any action, suit, or proceeding in a court of the United States to which a
State or any agency, officer, or employee thereof is not a party, wherein the
constitutionality of any statute of that State affecting the public interest is
drawn in question, the court shall certify such fact to the attorney general of
the State, and shall permit the State to intervene for presentation of
evidence, . . . and for argument on the question of constitutionality.

The local rules of the District of Colorado explicitly incorporate this provision, requiring
that “[o]n receipt of a notice of unconstitutionality, the court shall comply with the
certification provisions of 28 U.S.C. § 2403.” D.C.Colo.LCivR 24.1C.

Rule 120 of the Colorado Rules of Civil Procedure sets forth a procedure by
which a party may initiate foreclosure proceedings. Colo. R. Civ. P. 120. Given that
Rule 120 involves adjudication of property rights, it affects “the public interest” and
plaintiffs’ challenge has “drawn in question” its constitutionality. See 28 U.S.C.
§ 2403(b). Accordingly, it is

ORDERED that plaintiffs’ challenge to the constitutionality of Rule 120 of the
Colorado Rules of Civil Procedure is certified to the Colorado Attorney General. It is
further

ORDERED that the Clerk of this Court shall forward a copy of this Order, the
complaint [Docket No. 1], and the February 1, 2013 Order [Docket No. 26], certified
under seal, to the Colorado Attorney General.

DATED May 9, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

Reuters-

On Monday, former New York governors Mario Cuomo and George Pataki wrote an unusual joint opinion piece in The Wall Street Journal, calling on New York Attorney General Eric Schneiderman to drop threats that he will continue to seek injunctive relief against former AIG chief Hank Greenberg, even though the AG has already had to abandon damages claims because Greenberg reached a private settlement with investors in a securities class action. As my Reuters colleague Karen Freifeld explained in a really smart analysis last Friday, Schneiderman is constrained by a 2008 ruling that limits the AG’s right to recovery in the name of investors who have already settled a federal-court class action. Freifeld said that the same holding, Spitzer v. Applied Card, may ultimately force the AG to drop claims for money damages against Bank of America in connection with its merger with Merrill Lynch and against Ernst & Young for its audit of Lehman Brothers, even though both suits were brought under New York’s powerful Martin Act, which permits the state to bring securities claims on behalf of supposedly defrauded investors.

I’ve written a lot about the tension between class action lawyers and state regulators with parallel claims. The battle to recover damages on behalf of misled investors (and the right to claim credit for the recovery) is part of that interplay: In New York, whoever makes a deal first wins.

[REUTERS]

PB Post-

A handful of foreclosure defense attorneys are raising issues with the foreclosure reduction plan recommended by the Foreclosure Initiative Workgroup.

Some said they were unaware the workgroup of judges and court administrators had even been assembled and are concerned they weren’t given a chance to have input about the report.

Find the report here.

Royal Palm Beach-based foreclosure defense attorney Tom Ice said there were a few items in the report that struck him as “wrong-minded,” including an assertion that dismissing a foreclosure that isn’t ready for a hearing is only a temporary fix.

[PALM BEACH POST]

Scribd

Lets not forget: George Anhang from both Covington & Burling and Dewey & LeBoeuf law firms that represented LPS in the defense of this securities class action.

Reuters-

Mortgage servicing company Lender Processing Services Inc has agreed to pay $14 million to settle claims the company misled investors about improper practices underlying its business model, including the “robo-signing” documents, in connection with foreclosures.

The company’s settlement, disclosed in papers filed last week in U.S. District Court in Jacksonville, Florida, marked the latest securities class action settlement to spill out of the U.S. housing market crash and subsequent financial crisis.

Filed in 2010, the lawsuit accused Lender Processing and several executives of making false or misleading statements related to an alleged practice of improper “fee splitting” and of engaging in illegal document-filing practices related to foreclosures.

Following a series of disclosures about its allegedly improper business practice, Lender Processing’s stock fell 18 percent from April 2009 to October 2010.

[REUTERS]

IN RE JIMENEZ

In re: LEONOR HILDA JIMENEZ, Chapter 13, Debtor.
Case No. 12-26282 HRT.
United States Bankruptcy Court, D. Colorado.

February 1, 2013.

ORDER ON OBJECTION TO PROOF OF CLAIM

HOWARD R. TALLMAN, Bankruptcy Judge.

This case comes before the Court on Debtor’s Objection to Proof of Claim #4-1 Filed by FirstBank (docket #14) (the “Objection”).
FirstBank (the “Bank”) filed its Response to Objection to Proof of Claim #4-1 Filed by FirstBank (docket #24) (the “Response”). The Court set the matter for hearing. In anticipation the hearing, Debtor filed her Objection (docket #38), which is, in substance, a motion in limine seeking to exclude evidence of the Bank’s attorney fees and costs alleging the Bank’s failure to properly itemize the pre-petition interest, fees, expenses and other charges included in the amount of its claim as required under FED. R. BANKR. P. 3001(c)(2)(A).

The Court conducted a hearing on January 10, 2013, and heard evidence and argument of the parties. This matter raises two issues — one substantive and one procedural. The Debtor has objected to the amount of the Bank’s pre-petition attorney fees incurred with respect to its three aborted pre-petition foreclosure proceedings commenced against the Debtor’s home. Debtor’s Objection thus raises the substantive issue of the reasonableness of the pre-petition attorney fees incurred by the Bank in order to pursue those three foreclosure proceedings. The procedural issue concerns whether the Bank complied with Rule 3001 and the appropriate penalty to be imposed if the Bank’s proof of claim was not filed in compliance with the rule. At the close of the Debtor’s evidence, the Bank made an oral motion for directed verdict on the basis that the Debtor has not met her burden to present sufficient evidence to negate the prima facie validity of the Bank’s proof of claim.

I. FACTUAL BACKGROUND
Debtor executed a promissory note to the Bank on June 29, 2001, in the principal amount of $140,000.00, payable at 7% per annum interest over a term of 30 years (the “Note”). The proceeds of the Note were used to purchase the Debtor’s residence at 920 Winona Court, Denver, Colorado (the “Property”), and the Note is secured with a deed of trust granting the Bank a security interest in the Property (the “Deed of Trust”) (collectively the Note and the Deed of Trust are the “Loan Documents”).

Debtor has fallen behind on her Note payments several times. Three pre-petition proceedings to foreclose on the Deed of Trust were initiated as a result of those delinquencies. Those proceedings were initiated in 2004; in 2008; and in 2011. Each time, the Debtor cured the delinquency and the Bank dismissed its foreclosure. However, the attorney fees and expenses incurred by the Bank in each of those foreclosure proceeding are collectable from the Debtor under the Note and Deed of Trust and they remain outstanding obligations of the Debtor.

The Debtor’s obligations under the Note and Deed of Trust again became delinquent in 2012. The Debtor anticipated that the Bank would again seek to foreclose its Deed of Trust and, lacking the wherewithal to cure the delinquency, the Debtor filed this bankruptcy case under chapter 13 on August 2, 2012.

The Bank filed its proof of claim #4-1 on September 4, 2012 (the “Claim”). The Bank’s Claim reflects a total secured debt of $132,945.08, including a delinquent arrearage amount of $17,515.61. As reflected in the Bank’s Claim, that arrearage consists of three delinquent payments in the total amount of $3,188.01 and $14,327.60 of pre-petition fees, expenses and charges. The Bank’s Claim itemizes the pre-petition fees, expenses and charges as late charges amounting to $2,231.93 and attorney fees of $12,095.67.1

The evidence showed that the true amount of pre-petition attorney fees incurred by the Bank is $7,868.90. In addition to attorney fees, the Bank incurred appraisal fees of $970.00. The Bank also incurred expenses such as public trustee fees, title fees, filing fees, fax costs and photocopy costs amounting to $3,208.67.

II. DISCUSSION
The Bank has not complied with Rule 3001(c)(2)(A). The Rule provides in relevant part that
If, in addition to its principal amount, a claim includes interest, fees, expenses, or other charges incurred before the petition was filed, an itemized statement of the interest, fees, expenses, or charges shall be filed with the proof of claim.

FED. R. BANKR. P. 3001(c)(2)(A). The Bank’s Claim includes the standard Mortgage Proof of Claim Attachment (Form B 10 (Attachment A)). That attachment contains numerous categories of typical fees and expenses to assist a claimant in itemizing its fees and expenses in order to comply with Rule 3001(c)(2)(A)’s itemization requirement. But all of the appraisal costs; title fees; public trustee fees; and filing fees were simply included as attorney fees of $12,095.67. In fact, as the Bank’s Exhibit 12-A shows, that figure includes over $4,000.00 of appraisal costs and other expenses that Rule 3001(c)(2)(A) requires to be itemized on a proof of claim whenever interest, fees and other charges are part of the claim being filed in an individual case such as this one.

Two consequences flow from the Bank’s non-compliance with Rule 3001(c)(2)(A). First, the Bank does not enjoy the Rule 3001(f) evidentiary effect of a claim that is filed in accordance with the Rules. Rule 3001(f) provides that a proof of claim that is in compliance with the Rules shall constitute prima facie evidence of the amount and validity of the claim. Because the Bank’s Claim is not entitled to that evidentiary presumption, the Bank bore the full burden of proof to support its Claim. Therefore, the Court will deny the Bank’s motion for directed verdict. The second consequence is that a proof of claim that does not comply with the itemization requirement of Rule 3001(c)(2)(A) is subject to sanctions under Rule 3001(c)(2)(D).

A. Reasonableness of the Bank’s Claimed Attorney Fees
The Bank presented evidence that the total amount of fees, expenses and appraisal costs due to the Bank in connection with its Claim is $12,047.57.2 The portion of this figure that reflects the Bank’s attorney fee expense is $7,868.90. The Debtor contests the reasonableness of the amount of the Bank’s attorney fees.

The Court heard expert testimony presented by the Debtor on the reasonableness of the attorney fees incurred by the Bank with respect to the pre-petition foreclosure actions that it initiated. Defendant’s expert has extensive experience in legal practice, filing and conducting deed of trust foreclosures in the state of Colorado, and is a partner in a law firm specializing in deed of trust foreclosures. Her experience is in high-volume foreclosure firms. Those firms use paralegal personnel to do the bulk of the routine processing of the foreclosure actions and use technology to great advantage. They tend to serve the market created by high volume servicers of mortgage loans that are held or guaranteed by governmental or quasi-governmental entities. Those high-volume foreclosure firms operate within schedules of flat-rate fees under the contracts that they enter into with the high-volume loan servicers.

By contrast, the Bank holds and services the Debtor’s mortgage loan. It has formed a relationship with the Denver law firm of Rothgerber, Johnson & Lyons LLP (“Rothgerber”) and Rothgerber does the Bank’s legal work. Rothgerber is a full-service law firm and primarily bills for its services according to the hourly billing rates of its attorneys and paralegal personnel. Stephen Johnson is the partner at the Rothgerber firm who is reflected on invoices as having performed legal services in connection with the Bank’s Claim. A paralegal designated on the invoices as P. Lord also performed services for the Bank. As of December of 2011, the invoices in evidence show Mr. Johnson’s billing rate to be $425.00 per hour and Ms. Lord’s billing rate to be $185.00 per hour. The earliest invoices in evidence show Mr. Johnson billing $340.00 per hour and Ms. Lord billing $160.00 per hour.

The expert testimony presented by the Debtor was not helpful to the Court in analyzing the reasonableness of attorney fees in connection with the Bank’s Claim. The specialized legal environment within which Debtor’s expert has operated is quite different from the type of full-service firm employed by the Bank. In fact, she candidly acknowledged that her experience has been exclusively with high-volume foreclosure firms working on a flat-rate basis and that she has no experience with hourly billing.

The fact that foreclosure services provided by a specialized high-volume mortgage foreclosure firm are dramatically lower than the cost of similar services provided at an hourly rate by a full-service firm does not, in and of itself, demonstrate unreasonableness of the higher fees. The Bank has a long-standing relationship with the Rothgerber firm and has made a business decision to employ that firm to do its legal work — even the foreclosure work they could have done much more inexpensively at a specialized foreclosure firm.

The Court will deny the Debtor’s objection to the reasonableness of the attorney fee portion of the Bank’s Claim. Because Debtor’s evidence went to a type of high volume legal practice, compensated through negotiated flat fees, which is unlike the Rothgerber full-service practice that charges hourly rates, that evidence failed to shed light on the reasonableness of the Rothgerber fees. Moreover, Rothgerber’s invoices show an exercise of billing judgment and a delegation of work to a paralegal with a lower billing rate. Based on the Court’s experience, Rothgerber’s rates are within the reasonable range of fees that the Court sees charged in bankruptcy matters. The Court will not fault the Bank for choosing a full-service firm to do its legal work.

B. Sanctions under Rule 3001(c)(2)(D).
This case illustrates the purpose of the requiring claimants to itemize fees and expenses in the proof of claim. The Bank’s Claim reflects attorney fees in the amount of $12,0957.67 when, in reality, the evidence establishes that the total attorney fees were $7,868.90. Under the rules, the Debtor had the right to expect that she would have been properly informed of the actual amount of attorney fees and the nature and amount of other expenses that were improperly lumped in with the attorney fees on the Bank’s Claim. The Court cannot speculate what difference the correct information would have made to the Debtor. It is clear from her objection that she viewed attorney fees in excess of $12,000.00 to be excessive. Whether a proof of claim that reflected the correct attorney fee figure would have been acceptable to her or would have prompted the same objection cannot be known. Nonetheless, she had a right to have correct information provided in the Bank’s Claim and Rule 3001(c)(2)(D) provides that the Court may invoke an appropriate sanction on account of the Bank’s failure to comply.

The Rule permits the Court to exclude information omitted from the Bank’s Claim as evidence at trial. FED. R. BANKR. P. 3001(c)(2)(D)(i). Accordingly, the Court will deny admission of the omitted information. The Bank’s proof of claim does not itemize any of the appraisal fees of $970.00 nor does it itemize any of the other expenses of $3,208.67. The only fees that the Bank shows on its proof of claim are the attorney fees and properly itemized late charges, therefore, the Court will only admit evidence of the attorney fees which the Court finds total $7,868.90 and the uncontested late charges of $2,231.93.

In mitigation of its failure to comply with Rule 3001(c)(2)(A), the Bank’s counsel provided detailed invoices of all legal services reflected in the Bank’s Claim to Debtor’s counsel in time for Debtor’s counsel and her retained expert to fully review those in preparation for the hearing on Debtor’s Objection. In addition, nothing in the evidence persuades the Court that there is any element of intention or willfulness involved in the Bank’s failure to comply. Under the circumstances, the Court finds that exclusion of all of the Bank’s evidence, as requested by the Debtor, would be an unnecessarily harsh sanction.

In addition to authorizing the Court to exclude the Bank’s evidence at hearing, it allows the Court to “award other appropriate relief, including reasonable expenses and attorney’s fees caused by the failure.” FED. R. BANKR. P. 3001(c)(2)(D)(ii). In addition to excluding the Bank’s evidence with respect to the non-itemized expenses, under Rule 3001(c)(2)(D)(ii), the Court will order: 1) payment by the Bank of the attorney fees and expenses incurred by the Debtor in connection with her Objection to the Bank’s Claim; and 2) denial of the Bank’s ability to charge its fees and expenses incurred in defense of the Debtor’s Objection to the Debtor under the Loan Documents.

C. Allowance of the Bank’s Proof of Claim
In accordance with the above discussion, the Bank’s Claim will be allowed as follows:

1. Total Claim

a. Principal $116,723.41
b. Interest $2,111.10
c. Late Charges $2,231.93
d. Appraisal Costs $0.00 Disallowed; Rule 3001(c)(2)(D)(i)
e. Expenses $0.00 Disallowed; Rule 3001(c)(2)(D)(i)
f. Attorney Fees $7,868.90
___________
g. Claim Total $128,935.34

2. Arrearage Claim

a. Installments $3,188.01 (3 pmts. principal, interest & escrow)
b. Fees and expenses $10,100.83 (late charges and attorney fees only)
___________
c. Arrearage Total $13,288.84

III. CONCLUSION
The Bank has demonstrated that it did incur and pay the attorney fees reflected in the Bank’s Exhibit 12-A and the Debtor’s evidence failed to raise an issue as to the reasonableness of those fees. Nonetheless, the Bank’s failure to itemize is precisely the issue that Rule 3001(c)(2)(A) is intended to address so that debtors have complete information with respect to fees and other charges included in a mortgage creditor’s claim. With more complete information, debtors are better able to determine whether a claim objection is appropriate. For that reason, a substantial penalty is appropriate even though the Bank’s failure appears to be a matter of inadvertence. Payment of the Debtor’s fees and costs will be made directly to Debtor’s counsel. The Court will determine the amount of attorney fees and expenses to be paid upon the submission of a bill of costs by Debtor’s counsel.

Therefore, in accordance with the above discussion, it is
ORDERED that the Bank’s oral motion for directed verdict is DENIED. It is further

ORDERED that Debtor’s Objection to Proof of Claim #4-1 Filed by FirstBank (docket #14) is GRANTED IN PART. The Court hereby determines that the allowed amount of the Bank’s Claim is $128,935.34 and the amount necessary to cure the mortgage arrearage is $13,288.84. It is further

ORDERED that the Debtor’s Objection (to the Bank’s exhibits under Rule 3001) is GRANTED IN PART. Under Rule 3001(c)(2)(D)(i), as a sanction for FirstBank’s failure to fully itemize its fees and expenses, the Court has not considered the Bank’s evidence of appraisal costs and expenses not itemized on its proof of claim and the disallowance of those expenses is reflected in the Bank’s allowed claim above. It is further

ORDERED that as an additional sanction, under Rule 3001(c)(2)(D)(ii), the Bank will pay to Debtor’s counsel an amount to be determined by the Court for attorney fees and expenses incurred in connection with the Debtor’s Objection. Debtor’s counsel shall file a bill of costs reflecting attorney fees and expenses incurred in connection with Debtor’s Objection to Proof of Claim #4-1 Filed by FirstBank and the hearing held in connection with that Objection no later than February 15, 2013, and FirstBank shall have until March 1, 2013, to file any objection it may have to the bill of costs. Thereafter, by separate order, the Court will determine the amount of the fees and expenses to be levied against FirstBank. It is further

ORDERED that FirstBank is hereby prohibited from adding attorney fees, charges and expenses incurred in order to defend against Debtor’s Objection as expenses to be charged to the Debtor under the mortgage Loan Documents.

Footnotes
1. During the presentation of evidence, counsel for the Bank brought to the Court’s attention a duplication on an invoice. The total of the submitted invoices should be $12,047.57 which is the total of fees, expenses and appraisals listed on the Bank’s summary Exhibit 12-A.

2. These are broken down as reflected on the Bank’s Exhibit 12-A as: 1) attorney fees of $7,868.90; 2) expenses of $3,208.67; and 3) appraisal fees of $970.00.

Fox4Now-

If you’ve ever owned property, you know how it’s supposed to work. You pay for it, you get the title. And you would think that property’s yours, right? Not so fast. Four In Your Corner’s Liza Fernandez introduces us to a couple who bought a lot in Lehigh Acres that’s now in legal limbo.

This Lehigh Acres house was supposed to be a dream retirement home for Kathy and Gerry Powers.

“All the paperwork and everything came through, and we basically had the the two half-acre lots and the house,” Kathy tells us by phone.

Snagged at a great price in a 2009 foreclosure, the Indiana couple then decided to sell when their retirement plans changed a few years later. They felt lucky to find a buyer.

“Then we got a call. Their title insurance company discovered an error that the half acre that was supposed to accompany our home did not actually legally belong to us. And it could not be sold,” Kathy explains.

[FOX4NOW]

TBTF…NOT!

HuffPO-

JPMorgan Chase & Co Chairman and CEO Jamie Dimon said he may consider leaving the bank where he has held the top post since 2005, if shareholders vote to split his duties, the Wall Street Journal reported on Saturday.

Shareholders will vote later this month at an annual meeting in Tampa, Florida, on a non-binding proposal to separate the chairman and chief executive roles after a more than $6 billion trading loss last year raised questions about risk oversight.

At first, Dimon said he would not comment publicly on what he would do if the vote went against him, but when pressed he added that the worst-case scenario would be to leave the bank, the newspaper said, citing sources that attended a private meeting at the company’s New York headquarters.

Results of the vote will be announced on May 21, but it remains unclear what the board will do if the proposal passes.

[HUFFINGTON POST]

image: AP

This should be a sequel to: Meet FL AG Pam Bondi, Foreclosure Fraudsters’ BFF

Palm Beach Post-

The Legislature finally has passed a bill to ease Florida’s foreclosure crisis. The problem is, it’s a bad bill that Gov. Scott should veto.

Rep. Kathleen Passidomo, R-Naples, sponsor of House Bill 87, believes that giving banks the right to seek a quicker hearing would get the state’s 350,000 foreclosure cases resolved faster. Her approach might make sense if the banks weren’t causing the backlog by not acting on the cases they file.

Though some homeowners employ attorneys who are responsible for delays, the vast majority are at the mercy of lenders who set the timetable for how quickly cases move, or don’t move. It takes an average of two years to dispose of foreclosure lawsuits in Florida because too often lenders and servicers don’t want to assume the taxes, association dues and expenses to list a house for sale that they incur after taking possession. They also don’t want a glut of foreclosures depressing prices and furthering their losses. So they let cases languish. On Friday, the backlog prompted the Florida Supreme Court to order that trial courts hire magistrates, to move more cases.

HB 87 would let lenders seek a “show cause” hearing, forcing homeowners into court quickly to prove that they shouldn’t be foreclosed on. That would not light a fire under the banks.

[PALM BEACH POST]