STOP FORECLOSURE FRAUD - Part 2

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Bank Not Liable for Death of Woman Evicted Following Foreclosure

Bank Not Liable for Death of Woman Evicted Following Foreclosure

MetNews-

The  Ninth U.S. Circuit Court of Appeals yesterday affirmed a summary judgment in favor of Wells Fargo in an action against it alleging the wrongful death of a 62-year-old woman it evicted from a home on which the bank foreclosed after she fell behind in her payments, having ceased working in light of having contracted breast cancer.

The decedent, Marsha Kilgore, died Oct. 16, 2013 “from inability to breathe” because, being homeless, she was unable to plug in her oxygen concentrator, according to the complaint in the case.

Her daughter, Brooke Noble, brought the action.

Ordered to Leave

Noble had lived with her mother in a Fresno condominium Kilgore had owned until the foreclosure. The complaint alleged that an agent of Wells Fargo told them to gather their belongings and leave, agreed to give them a 24-hour delay, returned the next day, and ordered them to quit the premises.

Wells Fargo had a policy of according financial assistance to persons who are evicted and leave willingly, but offered none to Kilgore.

Kilgore was a plaintiff in a class action against Wells Fargo based on a promised loan modification that never materialized.

[METNEWS]

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PL III, LLC v. Puu Lani Ranch Corp. | HAWAII ICA – Another, MAJOR Appellate Victory for DUBIN LAW OFFICES!

PL III, LLC v. Puu Lani Ranch Corp. | HAWAII ICA – Another, MAJOR Appellate Victory for DUBIN LAW OFFICES!

CAAP-14-0001115mop by DinSFLA on Scribd

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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California Supreme Court Confirms Lender Foreclosure Option

California Supreme Court Confirms Lender Foreclosure Option

NatLawReview-

Earlier this month, in Black Sky Capital v. Cobb, the California Supreme Court addressed the following question: when a creditor holds senior and junior liens on the same property, can the creditor non-judicially foreclose on the senior lien, and then seek a deficiency judgment against the borrower on the junior debt? For 25 years, California courts had answered that question “No” based on the First District Court of Appeal’s 1992 decision in Simon v. Superior Court, which held that the anti-deficiency protections of California Code of Civil Procedure 580d barred a creditor in such circumstances from pursuing a deficiency on the junior note. In 2017, however, the Fourth District Court of Appeal reached a different conclusion in Black Sky Capital v. Cobb, holding that section 580d only barred further recovery on that note following a non-judicial foreclosure sale, and did not bar recovery on a different (i.e. the junior) note. The conflict between the two Courts of Appeal has now been resolved.

The California Supreme Court has affirmed the Fourth District’s ruling, adopting the stricter reading of section 580d which holds that the statute only bars deficiency judgments on the same debt at issue in the senior foreclosure sale. While the Supreme Court recognized the concern raised in Simon that lenders will simply structure one loan as separate senior and junior loans in order to circumvent the borrower’s anti-deficiency protections, the court stated that such circumstances were not present in the case before it, as the loans at issue were made more than two years apart. The court did note that “a substantial question would arise” if “there is evidence of gamesmanship by the [creditor].” The court did not define “gamesmanship” but referenced two situations that might qualify: “intentional loan splitting” and “recovery in excess of what any junior lienholder would be able to recover.” The former situation clearly refers to a lender making two loans rather than one to avoid anti-deficiency protections, and the latter situation likely refers to the lender manipulating the senior foreclosure sale itself (e.g. bid rigging).

[NATLAWREVIEW]

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TFH 5/26 | An Evening with Max Gardner Discussing Securitization, Foreclosure, and Bankruptcy (originally broadcast on October 20, 2013)

TFH 5/26 | An Evening with Max Gardner Discussing Securitization, Foreclosure, and Bankruptcy (originally broadcast on October 20, 2013)

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)

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Sunday – MAY 26, 2019

An Evening with Max Gardner Discussing Securitization, Foreclosure, and Bankruptcy (originally broadcast on October 20, 2013)

.

 ———————

 

Max Gardner, whose law office is headquartered in Shelby, North Carolina, has long been recognized as one of America’s leading lawyers specializing in predatory lending issues in consumer bankruptcy cases.

An undergraduate of the University of North Carolina and its School of Law, Max has had a highly successful career as a trial attorney, and now limits his practice to the representation of individual consumers in Chapter 13 and Chapter 7 bankruptcy cases, protecting debtors from predatory lending.

Today, Max is perhaps the best known, nationally recognized consumer bankruptcy attorney in the United States.

Receiving special national acclaim has been his “Bankruptcy Bootcamp” lectures in which he has been training motivated consumer attorneys from across the country for many years to join in his battle against the lenders, creditors, mortgage loan servicers, and collectors who seek to profit from unethical practices and illegal fees.

His next, two-day Boot Camp seminar, for instance, will be held this July 13-14, 2019, at Max’s remote 160-acre farm in the mountains of western North Carolina, focusing on “Proof of Claim Litigation and Loan Modification.”

Max’s family has a rich historical heritage of public service. He is the Grandson of former North Carolina Governor O. Max Gardner, and the Grandnephew of former Governor of North Carolina/United States Senator Clyde R. Hoey.

You are invited to be with Max and me this Sunday and learn from his many interesting and successful courtroom experiences.

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

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U.S. Bank National Association v. Kim | HAWAII ICA – DUBIN LAW OFFICES DOES IT AGAIN!! JUDGMENTS VACATED!!!

U.S. Bank National Association v. Kim | HAWAII ICA – DUBIN LAW OFFICES DOES IT AGAIN!! JUDGMENTS VACATED!!!

H/T DUBIN LAW OFFICES!

8189407027 by DinSFLA on Scribd

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NATIONSTAR MORTGAGE LLC v. Adee | NY: Appellate Div., 3rd Dept. – Based on the foregoing, defendants satisfied their burden of establishing that plaintiff was not entitled to foreclose on the subject property.

NATIONSTAR MORTGAGE LLC v. Adee | NY: Appellate Div., 3rd Dept. – Based on the foregoing, defendants satisfied their burden of establishing that plaintiff was not entitled to foreclose on the subject property.

2019 NY Slip Op 03873

NATIONSTAR MORTGAGE LLC, Doing Business as CHAMPION MORTGAGE COMPANY, Appellant,
v.
BRIAN S. ADEE et al., as Trustees of the Gerald F. and Marjorie C. Adee Trust, Respondents, et al., Defendants.

527518.
Appellate Division of the Supreme Court of New York, Third Department.
Decided May 16, 2019.
Appeal from an order of the Supreme Court (Cawley Jr., J.), entered March 14, 2018 in Broome County, which, among other things, granted certain defendants’ cross motion for summary judgment dismissing the complaint against them.

Goldberg Segalla LLP, Buffalo (Marc W. Brown of counsel) and Gross Polowy, LLC, Williamsville (Laura Strauss of counsel), for appellant.

Coughlin & Gerhart, LLP, Binghamton (Robert R. Jones of counsel), for respondents.

Before: Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

AARONS, J.

Marjorie C. Adee (hereinafter Adee), along with her husband, owned real property in the Town of Vestal, Broome County. They created the Gerald F. and Marjorie C. Adee Trust (hereinafter the trust) and their children, defendants Brian S. Adee, Barbara L. Torrey and Kathy Anne Drumm (hereinafter collectively referred to as defendants) were named trustees. In 1995, the subject property was conveyed to the trust via a quitclaim deed with a life estate reserved for Adee and her husband. After her husband died, Adee, in 2003, entered into a loan agreement with M & T Bank for a home equity line of credit in the amount of $55,000. Under the loan agreement, Adee and the trust gave M & T Bank a mortgage secured by the subject property (hereinafter the HELOC mortgage). The HELOC mortgage was recorded in the Broome County Clerk’s office in July 2003.

In October 2007, Adee applied for a reverse mortgage with Bank of America, N.A. Adee was immediately approved and executed a note and reverse mortgage in the amount of $255,900 in favor of Bank of America. According to the reverse mortgage, Adee gave the subject property as security. In conjunction with this reverse mortgage, Adee also completed a US Department of Housing and Urban Development Addendum to the Uniform Residential Loan Application, as well as a settlement statement, which stated, among other things, that the HELOC mortgage was paid by Bank of America. The satisfaction of the HELOC mortgage was recorded in November 2007.

In 2012, Bank of America assigned the reverse mortgage to plaintiff. In 2015, Adee died. In 2017, plaintiff commenced this foreclosure action against defendants, as trustees of the trust, among others, after the requisite payments due were not made following Adee’s death. Following joinder of issue, plaintiff moved for summary judgment and dismissal of defendants’ affirmative defenses. Defendants cross-moved for summary judgment dismissing the complaint on the basis that the trust did not execute the reverse mortgage. In a March 2018 order, Supreme Court denied plaintiff’s motion and granted defendants’ cross motion. Plaintiff appeals. We affirm.

In support of their cross motion for summary judgment, defendants submitted, among other things, a copy of the quitclaim deed reflecting that Adee and her husband conveyed the subject property to the trust in 1995 and that they reserved for themselves a life estate interest. Defendants therefore demonstrated that the trust, and not Adee, was the sole owner of the subject property when Adee applied for the reverse mortgage in 2007. Critically, Adee, at most, only had a life estate interest in the subject property when she entered into the reverse mortgage and such interest was extinguished upon her death in 2015. Based on the foregoing, defendants satisfied their burden of establishing that plaintiff was not entitled to foreclose on the subject property.

With the burden shifted, it was incumbent upon plaintiff to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]Bouchard v Champlain Enters., 279 AD2d 935, 937 [2001]). In our view, plaintiff failed to do so. Plaintiff asserts that because defendants served as a power of attorney for Adee and because two of them were listed on the reverse mortgage application as alternative contacts, they were aware of the reverse mortgage. However, even if we agreed with plaintiff that defendants knew about the reverse mortgage, such knowledge does not raise an issue of fact as to Adee’s possessory interest in the property. Nor do we agree with plaintiff’s claim that the reference on the settlement statement indicating a payment for the recording of a deed raises an issue of fact as to whether Adee was a fee owner of the subject property at the time she applied for the reverse mortgage.

Plaintiff also relies on the doctrine of equitable subrogation. This doctrine applies in situations “where the funds of a mortgagee are used to satisfy the lien of an existing, known incumbrance when, unbeknown to the mortgagee, another lien on or interest in the property exists which is senior to his or her but junior to the one satisfied with his or her funds” (Green Tree Servicing, LLC v Feller, 159 AD3d 1246, 1248 [2018] [internal quotation marks, brackets and citation omitted]; see Matter of Benedictine Hosp. v Glessing, 90 AD3d 1383, 1386 [2011]). If the subrogee had actual notice of the intervening interest, equitable subrogation is inapplicable (see Green Tree Servicing, LLC v Feller, 159 AD3d at 1248). Given that the quitclaim deed reflecting Adee’s interest in the subject property was validly recorded and the documentary evidence establishes that plaintiff’s predecessor had actual notice of it, plaintiff cannot rely on the doctrine of equitable estoppel (see RTR Props., LLC v Sagastume, 145 AD3d 697, 699 [2016]compare Elwood v Hoffman, 61 AD3d 1073, 1075-1076 [2009]).

Finally, to the extent that plaintiff contends that it should have an equitable mortgage on the subject property or that defendants ratified the reverse mortgage, such claims are improperly raised for the first time on appeal (see MLB Constr. Servs., LLC v Lake Ave. Plaza, LLC, 156 AD3d 983, 985 [2017]). Plaintiff’s remaining contentions are either without merit or academic.

Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur.

ORDERED that the order is affirmed, with costs.

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FL HOMES 1 LLC v. KOKOLIS | FL 4DCA – VOID! Full of sound and fury, this foreclosure case is the tale of the legal chaos that can happen when a mortgage holder initiates a foreclosure action but fails to include the sole record title holder as a party.

FL HOMES 1 LLC v. KOKOLIS | FL 4DCA – VOID! Full of sound and fury, this foreclosure case is the tale of the legal chaos that can happen when a mortgage holder initiates a foreclosure action but fails to include the sole record title holder as a party.

 

FL HOMES 1 LLC and JOSE PEREZ, Appellants,
v.
TOULA KOKOLIS, as Trustee of the TOULA KOKOLIS REVOCABLE TRUST dated July 2, 2014, and FL HOMES, LLC, Appellees.

No. 4D18-2709.
District Court of Appeal of Florida, Fourth District.
May 15, 2019.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. CACE 18-11249 (11).

Michael Winer, Fort Lauderdale, for appellants.

Steven L. Wall of Mestdagh & Wall, P.A., Winter Park, for appellee, Toula Kokolis, as Trustee of the Toula Kokolis Revocable Trust dated July 2, 2014.

GROSS, J.

Full of sound and fury, this foreclosure case is the tale of the legal chaos that can happen when a mortgage holder initiates a foreclosure action but fails to include the sole record title holder as a party. We hold that a foreclosure judgment was void for the failure of the plaintiff to join the only record title owner of the property; because the judgment was void, a lis pendens filed in that proceeding had no effect on unrecorded property interests whose holders did not intervene in the foreclosure action.

Florida Homes I LLC and Jose Perez appeal a summary final judgment of reforeclosure in favor of appellee Toula Kokolis, as trustee of the Toula Kokolis Revocable Trust. The property at issue in this case has been the subject of three separate foreclosure actions: (1) an action filed by a homeowners’ association; (2) the initial mortgage foreclosure lawsuit; and (3) the reforeclosure lawsuit.

Before any litigation, the property was owned by non-parties to this appeal, John Keefer and Denise Derosa-Keefer, who borrowed money and executed a note and mortgage in favor of the original lender. After multiple assignments, the note and mortgage landed with Greenwich Investors XLIII Trust 2013-1.

The Homeowners’ Association Foreclosure Action

In 2012, Tall Pines Community Homeowners’ Association, Inc. (the “HOA”) initiated a lawsuit to foreclose the association’s lien against the property. A final judgment of foreclosure led to a foreclosure sale on October 25, 2012.

At that foreclosure sale, appellant Perez made the winning bid of $22,100. Instead of putting the certificate of title in his name, Perez instructed the Clerk of Court to issue the title in the name of “FL Homes LLC.” The certificate of title was subsequently issued in the name of FL Homes LLC on November 6, 2012.

At the time the certificate issued, Perez was unaware that an entity named FL Homes LLC already existed in Florida. Perez had absolutely no connection to that entity, so he had no authority to acquire property on its behalf. Perez chose the name FL Homes LLC believing that the name had not yet been taken. Not until he went to register FL Homes LLC, did Perez learn that a company with that name already existed.

On November 27, 2012, Perez registered a new entity named “FL Homes 1 LLC.” Perez has never tried to retitle the property in the name of FL Homes 1 LLC. Perez took possession of the property, rented it out, and deposited rent checks in a bank account in the name of FL Homes 1 LLC. Perez also claims that he paid taxes and necessary fees associated with the property.

Initial Mortgage Foreclosure Action

Not surprisingly, after Keefer and Derosa-Keefer lost the property in the HOA foreclosure action, their mortgage loan was in default. On February 8, 2013, a lawsuit to foreclose that mortgage was filed. Greenwich Investors was later substituted as the plaintiff. This foreclosure action named the HOA and the prior owners of the property, Keefer and Derosa-Keefer, as defendants. The lawsuit did not name FL Homes LLC as a defendant, nor did it mention or seek to foreclose any interest in the property conveyed by the certificate of title in the HOA foreclosure action.

On February 14, 2013, a notice of lis pendens was recorded. After such recording, appellants did not seek to intervene in the lawsuit.

On December 16, 2014, a final judgment was entered against John Keefer, Denise Derosa-Keefer, and the HOA. A judicial sale was held in accordance with that final judgment on February 11, 2015. Greenwich Investors was the highest bidder at the judicial sale and a certificate of title for the property was issued to Greenwich Investors on February 24, 2015.

On December 22, 2015, Greenwich conveyed the property to Toula Kokolis for $539,900. In 2016, Toula Kokolis conveyed the property by quitclaim deed to Toula Kokolis, as trustee of the Toula Kokolis Revocable Trust, the appellee here.

The Reforeclosure Lawsuit

On May 10, 2018, appellee filed the underlying action (the “reforeclosure lawsuit”) to foreclose the mortgage against the interests or potential interests of parties omitted from the initial mortgage foreclosure lawsuit. The reforeclosure lawsuit named FL Homes LLC, FL Homes 1 LLC, and Perez as defendants. A notice of lis pendens was also recorded.

Appellants answered the complaint. FL Homes LLC also filed a response which stated, “FL Homes LLC claims no interest in this property and does not oppose the relief sought . . . .”

Appellee moved for summary judgment. Appellee argued that neither Perez nor FL Homes 1 LLC held any interest in the property. Appellee contended that any interest that existed by virtue of Perez’s winning bid at the HOA foreclosure sale was unrecorded at the time the lis pendens was filed in the initial mortgage foreclosure lawsuit, so that such unrecorded interests were discharged by section 48.23, Florida Statutes.

Appellants responded that the lis pendens, final judgment of foreclosure, and certificate of title issued in the initial mortgage foreclosure lawsuit were void ab initio due to Greenwich’s failure to name FL Homes LLC as a party in that lawsuit.

At the hearing on appellee’s motion for summary judgment, appellee acknowledged that appellants may have an interest in the property because, after the HOA foreclosure sale, Perez took possession of the property, rented it out, and collected rent. Appellee argued that because appellants’ interest was unrecorded, under the lis pendens statute, appellants had thirty days from the date the lis pendens was filed to intervene in the initial mortgage foreclosure action. Appellee contended that appellants’ failure to intervene meant that the judicial sale in the initial mortgage foreclosure action “forever discharged” the property from all unrecorded interests and liens under section 48.23(1)(d), Florida Statutes (2017).

Appellants responded that because Greenwich failed to name Florida Homes LLC, an indispensable party, in the initial mortgage foreclosure action, both the lis pendens and final judgment were void.

The trial court ultimately found that the judgment was not “void for failure to name the indispensable party” and granted the summary final judgment of foreclosure.

The trial court entered a written final judgment of reforeclosure, which recognized that FL Homes LLC was the party named in the November 6, 2012 Certificate of Title and was the only defendant who had an interest in the property recorded in the public records. The final judgment granted FL Homes LLC an opportunity to redeem the property and set the redemption amount at $728,789.46.

Discussion

The failure to include FL Homes LLC in the initial mortgage foreclosure action resulted in a void final judgment. FL Homes LLC held title to the property at the time the initial mortgage foreclosure action was filed. “The fee simple title holder is an indispensable party in an action to foreclose a mortgage on property.” Citibank, N.A. v. Villanueva, 174 So. 3d 612, 613 (Fla. 4th DCA 2015) (citing Oakland Props. Corp. v. Hogan, 117 So. 846, 848 (Fla. 1928) (stating that “[o]ne who holds the legal title to mortgaged property is not only necessary, but is an indispensable, party defendant in a suit to foreclose a mortgage.”)).

The failure to join FL Homes LLC rendered the entire foreclosure action void, so that the lis pendens filed in the initial foreclosure action cannot have had any legal effect. Under section 48.23, the nullifying impact of the lis pendens statute on unrecorded property interests turns on the prosecution of the lawsuit “to a judicial sale of the property.” § 48.23(1)(d), Fla. Stat. (2017). A void final judgment begets a void judicial sale. It was as if the lis pendens were discharged, so that the notice did “not affect the validity of any unrecorded interest or lien.” Id.

In English v. Bankers Trust Co. of California, N.A., 895 So. 2d 1120 (Fla. 4th DCA 2005), we wrote that the failure to join the fee simple owner in a foreclosure action rendered the foreclosure action void. There, the lender filed a foreclosure action against the original borrower, obtained a final judgment, and purchased the property at the foreclosure sale. Id. at 1121. Immediately thereafter, the lender learned that the borrower had conveyed the property to another before the foreclosure action, so it brought a second foreclosure action, naming both the original borrower and the new owner as defendants. Id. Summary judgment was entered for the lender. Id.

On appeal, the original borrower sought to avoid a deficiency judgment by arguing that res judicata precluded her from being joined in the new action because of the prior action. Id. We affirmed the summary judgment, explaining that res judicata did not apply because the original judgment was void:

The trial court correctly concluded that the first action was void. Significantly, this is not a re-foreclosure to extinguish a junior lienor. Rather, this second action is an initial foreclosure as to the fee simple owner. Because Lesa Investments, the undisputed owner, was not a party to the first suit, the initial foreclosure judgment could not result in a valid sale, as the owner of the fee simple title was an indispensable party.

. . . .

We note that, more than a century ago, the Florida Supreme Court recognized that “a foreclosure proceeding resulting in a final decree and a sale of the mortgaged property, without the holder of the legal title being before the court will have no effect to transfer his title to the purchaser at said sale.” If the foreclosure proceeding has no effect to transfer title because the legal title holder has not been joined, it is simply another way of saying that the foreclosure proceeding is void.

Id. at 1121 (emphasis added) (internal citations omitted); see also Villanueva, 174 So. 3d at 613-14.

That the initial foreclosure judgment was void for failure to join an indispensable party distinguishes this case from Epstein v. Bank of America, 162 So. 3d 159 (Fla. 4th DCA 2015). There, we rejected a bank’s due process challenge to a final judgment where the bank was not asserting its own constitutional rights, but those of another. Id. at 162. We observed that “constitutional rights are personal and may not be asserted vicariously.” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)). This case involves statutory rights under the lis pendens statute, not constitutional rights. Because the impact of the lis pendens upon appellants’ property rights depended upon the validity of the initial final judgment, appellants had standing to attack the final judgment as void.

Appellee argues that the final judgment in the initial mortgage foreclosure lawsuit was not void in its entirety and was ineffective only as to FL Homes LLC’s interest in the property. However, the cases cited by appellee are distinguishable because in those cases, at least one owner of the property was named in the foreclosure action and was properly foreclosed upon, while another owner was omitted from the action. See R.W. Holding Corp. v. R.I.W. Waterproofing & Decorating Co., Inc.,179 So. 753 (Fla. 1938) (title owners for two of three parcels of land named in foreclosure action, but title owner of third parcel omitted); Key West Wharf & Coal Co. v. Porter, 58 So. 599 (Fla. 1912) (mortgagor named in foreclosure action, but not others whom the mortgagor had conveyed portions of the premises to); Sudhoff v. Fed. Nat’l Mortg. Ass’n, 942 So. 2d 425 (Fla. 5th DCA 2006) (husband named in foreclosure lawsuit, but not wife). Thus, in cases where there are multiple owners of property, but one or more of the property owners is omitted, “a foreclosure suit may be maintained even though the holder of the legal title to the property is not a party to the foreclosure, but . . . the decree only establishes the rights of persons who are parties.” Pan Am. Bank of Miami v. City of Miami Beach,198 So. 2d 45, 47 (Fla. 3d DCA 1967).

Unlike the cases cited by appellee, in this case there was only one record title owner of the property at the time the initial mortgage foreclosure lawsuit was filed-FL Homes LLC. Therefore, consistent with this court’s precedent, the failure to name FL Homes LLC in the initial mortgage foreclosure lawsuit rendered the entire foreclosure action void. As the successor in interest to the original mortgage, appellee’s interest in the property is superior to that of appellants; our holding is that appellee may not rely on section 48.23 in a summary judgment to obtain a final judgment of foreclosure.

We reverse the summary judgment of foreclosure and remand to the circuit court for further proceedings consistent with this opinion.

WARNER and FORST, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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TFH 5/19 | Is a Homeowner’s Appeal Moot Upon  the Sale of Foreclosed Property? — Another Major Finality Versus Validity Controversy Today in State and Federal Courts

TFH 5/19 | Is a Homeowner’s Appeal Moot Upon the Sale of Foreclosed Property? — Another Major Finality Versus Validity Controversy Today in State and Federal Courts

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 – MAY 19, 2019

Is a Homeowner’s Appeal Moot Upon the Sale of Foreclosed Property? — Another Major Finality Versus Validity Controversy Today in State and Federal Courts

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 ———————

 

As a result of a recent increase in the number of appellate decisions more favorable to mortgage borrowers in many but not all state and federal courts, foreclosed homeowners are timely appealing in greater numbers, challenging their otherwise completed foreclosures.

During several of our prior shows we have referred to this newest and perhaps most significant issue emerging in foreclosure defense today as “Finality Versus Validity.”

On prior shows we have focused our attention on whether doctrines such as res judicata prevent reopening of final foreclosure judgments whether or not appealed.

On today’s show we discuss and attempt, time permitting, to answer the following questions:

What effect does an intervening sale of an appellant’s foreclosed property have on an otherwise timely-filed appeal?

Is a foreclosure appeal therefore rendered “moot,” causing it to be dismissed?

As in most areas of foreclosure defense, our appellate courts have historically favored foreclosing plaintiffs and robotically dismissed homeowners’ appeals, holding that the appeal is or has become moot, reasoning that courts are powerless to grant appellant homeowners the relief they seek, the return of their sold property.

Today, however, many appellate courts are rethinking that view and proceeding to decide foreclosure appeals on their merits instead.

John and I on today’s show discuss the reasons why such foreclosure appeals should not be dismissed and how homeowners and attorneys alike can and should defend against appellate mootness, in favor of Validity over Finality.

The following are the questions to be discussed on today’s show, which include “exceptions” to the mootness doctrine that both federal and state appellate courts are increasingly recognizing today:

1. What are the policy reasons supporting the appellate mootness doctrine?

2. How is the mootness doctrine applied differently in federal versus state appellate courts?

3. What is the “foreclosing plaintiff exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

4. What is the “assumption-of-risk purchaser exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

5. What is the “collusive purchaser exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

6. What is the “public policy exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

7. What is the “jurisdictional exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

8. What is the “supervening authority exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

9. What is the “estoppel exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

10. What is the “fraud exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

11. What is the “bankruptcy court exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

12. What is the “damages exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

13. What is the “additional consequences exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

14. What is the “remand exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

15. What is the “balancing of the equities exception” to appellate mootness, and how to argue that it should be applied in defense of your appeal?

Be sure to be with John and me this Sunday, especially if you are planning to or are now in the process of appealing an adverse foreclosure-related judgment.

You will not want to miss this uniquely important, groundbreaking broadcast in order to apply the above analysis and exceptions to the specific facts of your case, protecting your appeal, and to further improve your understanding of the future of foreclosure defense in this, the last and final frontier.

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

Past Broadcasts

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

The Foreclosure Hour 12

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© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Grosso v. HSBC BANK USA, NA EX REL. ACE SECURITIES CORP. | FL 4DCA – the homeowner was entitled to prevailing party attorney’s fees. We reverse and remand for the trial court to grant attorney’s fees and determine the reasonableness of the amount sought.

Grosso v. HSBC BANK USA, NA EX REL. ACE SECURITIES CORP. | FL 4DCA – the homeowner was entitled to prevailing party attorney’s fees. We reverse and remand for the trial court to grant attorney’s fees and determine the reasonableness of the amount sought.

 

DOMENIC GROSSO a/k/a DOMENIC L. GROSSO, Appellant,
v.
HSBC BANK USA, N.A., AS TRUSTEE ON BEHALF OF ACE SECURITIES CORP., Appellee.

No. 4D17-2874.
District Court of Appeal of Florida, Fourth District.
May 8, 2019.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Susan R. Lubitz, Senior Judge; L.T. Case No. 50-2012-CA-005882-XXXX-MB.

Michael Vater, Kendrick Almaguer, and Peter Ticktin of The Ticktin Law Group, PLLC, Deerfield Beach, for appellant.

Kimberly S. Mello and Joseph H. Picone of Greenberg Traurig, P.A., Tampa, for appellee.

ON MOTION FOR REHEARING

PER CURIAM.

We deny the bank’s motion for rehearing, but withdraw our previously issued opinion and substitute the following in its place.

The homeowner appeals an order denying his motion for attorney’s fees following the bank’s voluntary dismissal of its foreclosure action. We reverse because the voluntary dismissal rendered the homeowner the prevailing party for purposes of attorney’s fees.

HSBC Bank filed a foreclosure complaint against the homeowner, alleging it was the owner and holder of the note and mortgage. HSBC further alleged it was entitled to attorney’s fees under the contract. A copy of the note attached to the complaint listed DB Home Lending LLC as the lender and the homeowner as the borrower. The note contained a specific endorsement by DB Home Lending to HSBC.

The homeowner filed an answer and affirmative defenses. In his affirmative defenses, the homeowner stated that the bank lacked standing, the bank did not have legal rights to enforce the note and mortgage, and the endorsement on the note was not valid and authentic. The homeowner also requested attorney’s fees.

A year after filing the complaint, HSBC voluntarily dismissed the case without prejudice. The homeowner moved for prevailing party attorney’s fees under the contract. Specifically, the homeowner alleged in the motion for attorney’s fees that “[t]he Mortgage that was the subject matter of this lawsuit provided for costs and expenses if the Note holder was to enforce the Note” and that section 57.105(7), Florida Statutes, made this provision applicable to the homeowner. HSBC opposed the motion, arguing that the homeowner’s lack of standing defense precluded him from recovering fees. After a hearing, the trial court denied the homeowner’s motion, finding that he failed to prove that he and HSBC were parties to the contract.

A trial court’s determination of whether a party is entitled to attorney’s fees based on a fee provision in the mortgage is reviewed de novo. Bank of N.Y. Mellon Tr. Co., N.A. v. Fitzgerald, 215 So. 3d 116, 118 (Fla. 3d DCA 2017). Section 57.105(7), Florida Statutes, operates to make a unilateral attorney’s fees provision in a mortgage contract reciprocal. In order for a prevailing party to avail itself of section 57.105(7), both the movant and the opponent must be parties to the contract containing the fee provision. Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134, 1138 (Fla. 5th DCA 2017).

In denying the motion for fees, the trial court relied on Florida Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016). In Red Road Residential, the borrower maintained throughout the litigation, including in sworn discovery, that she never signed the mortgage. Id. at 1114. Rather than litigating its claim against the borrower, the bank ultimately dismissed her from the lawsuit with prejudice. Id. Unlike Red Road Residential, the instant case did not involve any sworn discovery and the dismissal was without prejudice.

We find instructive Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018). In that case, a borrower was found to be entitled to prevailing party fees after the bank’s voluntary dismissal even though she had challenged the bank’s standing throughout the lawsuit. This court found that “the parties never litigated the merits of [the bank’s] standing below, and the trial court never made a finding that the Borrower was not a party to the note or mortgage.” Id. at *2. Because the bank voluntarily dismissed the action without the trial court resolving the standing issue on the merits, the borrower was entitled to fees. Id. See also Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153, 1154 (Fla. 4th DCA 2018)(finding borrower who raised lack of standing as affirmative defense was entitled to prevailing party attorney’s fees following the bank’s voluntary dismissal because the parties never litigated standing and “the trial court never made a finding that the bank or the borrower were not parties to the contract”); Harris v. Bank of N.Y. Mellon, No. 2D17-2555, 2018 WL 6816177, at *4 (Fla. 2d DCA Dec. 28, 2018) (“[P]roof of standing is not required to establish a contractual relationship between the parties.”).

In this case, HSBC voluntarily dismissed its complaint, thus rendering the homeowner the prevailing party for purposes of attorney’s fees. Notably, the trial court never made a judicial determination that HSBC or the homeowner was not a party to the contract. Additionally, HSBC maintained in its complaint a right to enforce the contract. Significantly, the copy of the note attached to the complaint contained a specific endorsement by the original lender to HSBC and listed the homeowner as the borrower. This should be sufficient record evidence to demonstrate that HSBC and the homeowner were parties to the underlying contract so as to justify attorney’s fees pursuant to section 57.105(7). See Mihalyi v. LaSalle Bank, N.A., 162 So. 3d 113, 115 (Fla. 4th DCA 2014) (implying that an evidentiary hearing is required for determining the amount of fees, not for determining entitlement to fees); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)(“A request for attorney’s fees should not result in a second major litigation.”).

The cases the dissent relies on are distinguishable, as none involve a voluntary dismissal without prejudice like the instant case. The dissent attempts to distinguish Rodriguez and Elkind by stating that those cases dealt with judicial estoppel or prevailing parties, and not with the burden for attorney’s fees. But cases with the same facts should get the same result. A voluntary dismissal, without a judicial determination, should allow reliance on the reciprocal attorney’s fees provision of section 57.105(7).

Based on the foregoing authority, the homeowner was entitled to prevailing party attorney’s fees. We reverse and remand for the trial court to grant attorney’s fees and determine the reasonableness of the amount sought.

Reversed and remanded with instructions.

LEVINE and FORST, JJ., concur.

CONNER, J., dissents with opinion.

CONNER, J., dissenting.

I respectfully dissent for two reasons: (1) the trial court properly determined that no evidence was presented by the homeowner establishing the homeowner and HSBC were parties to a contract with a fee provision; and (2) the two cases from this District primarily relied upon by the majority are inapplicable to the specific argument made by HSBC in the trial court, which the trial court found to be dispositive.

Our recent opinions in Rodriguez v. Wilmington Savings Fund Society, FSB as Trustee for Stanwich Mortgage Loan Trust A, No. 4D18-310, 2018 WL 6528491 (Fla. 4th DCA Dec. 12, 2018) and Wells Fargo Bank, N.A. v. Elkind, 254 So. 3d 1153 (Fla. 4th DCA 2018), are inapposite because those opinions address issues concerning determination of a prevailing party and judicial estoppel, but they do not address the specific argument raised in the trial court by HSBC as to who has the burden of proof regarding a contractual relationship.

I respectfully submit the case law on the issue of attorney’s fees after a voluntary dismissal is confusing. In part, this is because appellate courts have frequently failed to articulate with precision the distinction in law between who is a “prevailing party” in litigation and who is a “party” to a contract. Moreover, standing, in the context of foreclosures, can be confusing because there are two phases of standing (at the time suit is filed and at the time of trial), which can be pertinent to determining who prevails on a legal issue. Additionally, the case law frequently fails to emphasize that promissory notes are a special specie of contracts, involving a special set of legal principles. For example, a person who does not properly obtain ownership of a blank indorsed note can enforce it because he or she is in possession of it. See § 673.3011, Fla. Stat. (2018). Presumably, enforcement of the note with an attorney fee provision allows such possessor to also receive attorney’s fees. At first blush, it seems implausible to say a person who is not in the chain of ownership can be considered in privity with the maker of the note, however, simple possession of contract (the blank indorsed note) provides the privity, even though there is no meeting of the minds. I also submit that much of the confusion stems from a failure to properly analyze and apply legal principles regarding judicial estoppel.

Our case law regarding entitlement to attorney’s fees after a voluntary dismissal has properly discerned that in terms of analysis, there is a difference between cases where the trial court has made evidentiary determinations regarding standing and cases where such evidentiary determinations have not been made. See Rodriguez, 2018 WL 6528491 at *1; Elkind, 254 So. 3d at 1154. However, trial judges are frequently led down the wrong path by attorneys who fail to recognize the difference between who is the prevailing party in litigation and who has the burden of proof for entitlement to fees. More importantly, if a party to a suit seeks attorney’s fees pursuant to a contract clause, but is not in a contractual relationship with the opposing party in the suit from whom fees are sought, it is improper to award attorney’s fees based on the contract provision. Novastar Mortg., Inc. v. Strassburger, 855 So. 2d 130, 131 (Fla. 4th DCA 2003) (“Because the Strassburgers were not parties to the mortgage, they were not entitled to recover attorney’s fees under the mortgage.”); see also Gibson v. Courtois, 539 So. 2d 459, 460 (Fla. 1989) (determining that the fact that no contract was formed was dispositive on the issue of fees based on a contract provision); Fitzgerald, 215 So. 3d at 121 (“Because no contract existed between the parties, the trial court erred in awarding Fitzgerald attorney’s fees pursuant to section 57.105(7)[.]”); HFC Collection Ctr., Inc. v. Alexander, 190 So. 3d 1114, 1117 (Fla. 5th DCA 2016)(holding that a party cannot employ section 57.105(7) as a basis for fees after proving the opposing party never became a party to the contract).

In granting rehearing and denying fees to the homeowner in this case, the trial court relied upon Judge Scales’s insightful opinion in Florida Community Bank, N.A. v. Red Road Residential, LLC, 197 So. 3d 1112 (Fla. 3d DCA 2016). There, the bank filed a voluntary dismissal after one of the defendants, Rios, filed a motion for fees as a sanction under section 57.105(1), Florida Statutes. Id. at 1114. After the voluntary dismissal, Rios moved for fees under both section 57.105(1) and section 57.105(7) (the contract reciprocity fee provision). Id. The trial court denied fees under section 57.105(1), but granted fees under section 57.105(7). Id.Notably, Judge Scales observed that “[a]s section 57.105(7) plainly requires, to gain the benefit of its substantive entitlement to prevailing party fees, the party seeking the benefit of reciprocity must be a party to the contract containing the fee provision.” Id. at 1115 (emphasis added). After making the observation, the opinion goes on to explain:

Ada Rios does not appear to contest this proposition. Rather, in oral argument, she sought to distinguish the reasoning in Novastarv. Strassburger] by arguing that, in Novastar and other similar cases, the trial court actually adjudicated that the party seeking fees was not a party to the contract. Ada Rios points out that, in this case, the Bank voluntarily dismissed its lawsuit before such an adjudication occurred. Ada Rios argues that, as the prevailing party (by virtue of the Bank’s dismissal), she should be the beneficiary of the fact that her status as a mortgagor specifically was not adjudicated.

Not surprisingly, the Bank takes the contrary position in the form of this syllogism: because Ada Rios’s principal defense was that she was not a party to the mortgage, and because Ada prevailed, therefore, for the purposes of section 57.105(7), Ada Rios was not a party to the mortgage.

Regarding whether Ada Rios was a party to the mortgage, we note that both the Bank and Ada Rios take positions opposite to the positions they took before the Bank’s voluntary dismissal of Ada Rios from the lawsuit. While both the Bank and Ada Rios suggest that the other party should be estopped from making its respective argument about whether Ada was a party to the mortgage, we view the case not from the parties’ estoppel perspectives, but from the perspective of burden: which party had the threshold burden of establishing whether Ada Rios was a party to the mortgage?

In our view, in order to avail herself of section 57.105(7)’s reciprocity, Ada Rios, as the prevailing party and movant seeking fees under the mortgage’s fee provision, had the threshold burden to plead and establish that she was a party to the mortgage containing the fee provision. Ada Rios’s status as the lawsuit’s prevailing party does not equate to Ada Rios being a mortgagor under the mortgage so as to trigger section 57.105(7)’s reciprocity provision.

Id. at 1115-16 (emphases added) (footnote omitted) (citations omitted). The Third District reversed the order awarding fees and remanded the case for further proceedings because “[t]he burden lies with the prevailing party to establish, as a threshold matter, her status as a party to the contract.” Id. at 1116. I agree with the Third District that in litigation seeking to enforce a contract (which includes foreclosure cases), establishing one party as the prevailing party in the suit does not necessarily establish that the prevailing party is also in a contractual relationship with the opposing party. See id.

In the trial court below, HSBC consistently argued in opposition to the homeowner’s motion for fees, as well as in support of its motion for rehearing, that in order to prove entitlement, the homeowner had the evidentiary burden of proving not only that the homeowner was the prevailing party, but also that the homeowner and HSBC were in a contractual relationship while the foreclosure suit was being litigated. The trial court granted fees to the homeowner, after initially determining that Red Road Residential was factually distinguishable from this case. HSBC moved for rehearing contending the trial court erred in its interpretation and application of Red Road Residential. After entertaining argument on the motion for rehearing, the trial court granted rehearing and specifically set a new evidentiary hearing on the fee motion. At the conclusion of the new hearing on the fee motion, the trial court found that

the Defendant [(the homeowner)] failed to prove that the Plaintiff [(HSBC)] and Defendant were parties to the note and mortgage. The Defendant’s Answer denied paragraphs 3, 4, & 5 of Plaintiff’s Complaint and Defendant’s Affirmative Defense asserted the Defendant [sic] did not have standing to file the Complaint. These assertions have not been overcome by evidence to show the Plaintiff and Defendants were parties to the Contract.

My review of the transcript of the hearing confirms that the homeowner presented no evidence that he was in a contractual relationship with HSBC. Thus, it appears the trial court’s finding was correct that there was no competent substantial evidence to support a determination that the homeowner and HSBC were parties to a contract which contained a provision of a fee award. Therefore, I contend that we have no legal basis to reverse the trial court. I disagree with the majority’s conclusion that the copy of the note attached to the complaint provided “sufficient record evidence to demonstrate HSBC and the homeowner were parties to the underlying contract so as to justify attorney’s fees pursuant to section 57.105(7).” When the issue of entitlement is uncontested, it is not uncommon for stipulations, admissions in pleadings, and affidavits to be used. When entitlement is contested, evidentiary hearings are required, with proof by testimony, exhibits, or both, unless summary judgment proceedings are properly invoked.

In addition to arguing the homeowner was not entitled to attorney’s fees for failure to carry his burden and provide evidence of a contractual relationship, HSBC made arguments below and on appeal asserting the homeowner could not make a factual showing of entitlement based on principles of judicial estoppel. Such arguments were incorrect and distracting. Trial advocates are to be reminded:

In judicial proceedings, a party simply is not estopped from asserting a later inconsistent position (if that it can be called), unless the party’s initial position was successfully maintained.

Leitman v. Boone, 439 So. 2d 318, 322 (Fla. 3d DCA 1983).

I emphasize that judicial estoppel arguments in these fee cases are distracting, when the argument is inappropriate, for a reason. I said above that Elkind was inapposite for the disposition of this case. I was one of the panel members deciding Elkind. In going back and reviewing our analysis and the briefs submitted in that case, I now realize that a somewhat similar argument about the burden of proof in fee cases was made in Elkind, but the clarity of the argument was lost by infusing it with arguments about judicial estoppel and not as a stand-alone argument.

For the reasons I have discussed, I would affirm the trial court.

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His lawn overgrew while he was tending to his mom’s estate. Now, he faces foreclosure and a $30,000 fine.

His lawn overgrew while he was tending to his mom’s estate. Now, he faces foreclosure and a $30,000 fine.

WAPO-

The grass got long. Jim Ficken knows it.

But was it so long that he should have to pay the city of Dunedin, Fla., nearly $30,000 and lose his home to foreclosure?

Ficken, for one, would rather ask a judge.

The 69-year-old retiree is now at risk of losing his home because he doesn’t have the $29,833.50 plus interest that he needs to resolve the exorbitant fines that accrued while he was away in South Carolina for nearly two months last summer, tending to his deceased mother’s estate, according to a lawsuit he filed against the city of Dunedin last week.

[WASHINGTON POST]

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New Jersey Creates Mortgage Servicers License as Part of Legislative Efforts to Curb Foreclosures in State

New Jersey Creates Mortgage Servicers License as Part of Legislative Efforts to Curb Foreclosures in State

Consumer Financial Services LAW MONITOR-

On April 29, New Jersey’s governor signed into law bill A4997, known as the Mortgage Servicers Licensing Act. As the title indicates, the Act creates a licensing regime for servicers of residential mortgage loans secured by real property within New Jersey. As with many state licensing regimes, the Act exempts most banks and credit unions from licensing. It also excludes from licensing certain entities regulated under the New Jersey Residential Mortgage Lending Act. Consequently, the licensing regime principally impacts non-bank servicers who do not lend in New Jersey.

Also like other licensing regimes, the Act requires licensees to maintain and submit evidence of surety and fidelity bonds, designate qualified individuals to serve in various roles, such as “Qualified Individual” and “Branch Manager,” and pay applicable licensing and renewal fees. Additionally, the Act:

  • Creates new operational requirements for some servicers;
  • Creates a list of prohibited activities for all servicers;
  • Provides the New Jersey Department of Banking and Insurance with investigative and examination authority; and
  • Provides the Department of Banking with enforcement authority, which includes the power to impose civil penalties of up to $25,000 per violation.

[Consumer Financial Services LAW MONITOR]

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Facing Foreclosure Single Mom and Breast Cancer Survivor Makes a Call to 2 Wants To Know That Changes Everything

Facing Foreclosure Single Mom and Breast Cancer Survivor Makes a Call to 2 Wants To Know That Changes Everything

Pamela Mosley was just starting a new business when she was diagnosed with breast cancer. Unable to work for the next 13 months she fell way behind on her mortgage payments and was about to be foreclosed on.

WFMYNEWS2-

Pamela Mosley is the type of person who does things, anything and everything. Mosley has three grown kids and is now raising her god-daughter on her own, “I’m always going,” says Mosley.

Balancing being a single mom and work is no simple task. In hopes of spending more time with her family she decided to start her own business, “It was going pretty well,” said Mosley.

She was also working at a temp agency to make sure she had some money coming in as her housekeeping business got started.

[WFMYNEWS2]

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Bank of Hawaii v. Marques | HAWAII ICA – JUDGMENTS VACATED! DUBIN LAW OFFICES DO IT AGAIN!

Bank of Hawaii v. Marques | HAWAII ICA – JUDGMENTS VACATED! DUBIN LAW OFFICES DO IT AGAIN!

2382022433 by DinSFLA on Scribd

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TFH 5/12 |  Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

TFH 5/12 | Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

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 – MAY 12, 2019

Foreclosure Workshop #74: Validity Versus Falsity — Proven Successful Ways in Which Homeowners in Foreclosure Can Weaponize Their Discovery Requests Relatively Inexpensively at the Beginning of a Foreclosure Case

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 ———————

 

In recent shows we have been discussing the controversy between Validity Versus Finality, where following foreclosure homeowners attempt to set aside foreclosure decrees based on fraud and other standing and jurisdictional deficiencies.

On past shows we have highlighted the Marcantonio Appeal as illustrative of the Validity Versus Finality controversy, now hopefully coming to the forefront in Hawaii.

Last Monday, right after last Sunday’s show, the Hawaii Supreme Court for example granted certiorari in Marcantonio, and the oral argument has been set for June 20, 2019 at 10:00 a.m. at the Hawaii Supreme Court in downtown Honolulu, and any of our listeners interested and able to are invited to attend.

On today’s show we go back to the very beginning of a foreclosure case and examine the flip side of the post-judgment Validity Versus Finality controversy: pre-judgment challenges to a foreclosing plaintiff’s burden of proof during =a foreclosure case, involving Validity Versus Falsity without the burden of Finality.

There are three basic strategies for defeating a foreclosing plaintiff’s foreclosure case: (1) an ambush strategy, consisting of waiting for it to commit itself in its motion for summary judgment once filed and then attacking its lack of proof, (2) an aggressive discovery strategy, consisting of serving numerous discovery requests during a foreclosure case to prove it cannot support its case, and (3) a combination of the first two.

In deciding which strategy to use, cost is a factor along with the specific facts of each case. Also, there is some danger early on in educating a foreclosing plaintiff as to its burden of proof, activating its hidden photoshop and printing press capabilities.

And while an ambush strategy is capable of defeating summary judgment, an aggressive discovery plan can not only defeat summary judgment, but win the case outright for you by disproving the foreclosing plaintiff’s entire case.

In choosing the best strategy for each individual case, here is what we do know. Most foreclosures and certainly virtually all securitized trust foreclosures are being supported in court by various degrees of fraudulent paperwork, consisting of fake documents, false verifications, forged signatures, predated instruments, concealed unjust enrichment, and hidden ownership.

There are many reasons for such fraud upon the court, such as the covering up of sloppy record keeping, securitization which itself slices and dices loan documentation making it difficult for foreclosing securitized trusts to fit within state statutory foreclosure requirements, loan modification hocus locus, and federal government insider machinations, as well as sheer fraudulent intent on the part of banksters, pretender lenders and loan disservicers.

The law in every state and federal jurisdiction provides litigants with several discovery weapons for gathering facts in advance of summary judgment proceedings and in advance of trial proceedings. And with the exception of oral depositions, most are relatively inexpensive.

However, expect the necessity of filing motions to compel as many foreclosing plaintiffs may at first refuse to provide you with adequate answers to your discovery requests or no answers at all, increasing costs that you may be able to recover from the court granting your motion to compel.

And you often also need an expert forensic report identifying your mortgage or deed of trust within a trading platform and/or disproving the existence of a “wet ink” original promissory note, which will add as much as $10,000 or more to your discovery costs, although well worth it if you can afford it.

There are four basic discovery weapons: (1) requests for admissions, where you can ask the other side to admit or to deny specific material facts, (2) requests for answers to interrogatories, where you can ask specific questions of the other side and also to some limited extent nonparty witnesses, (3) requests for the production of documents and things, where you can inspect and acquire copies of specific writings and inspect other physical objects, and (4) notices of the taking of oral depositions, consisting of your questioning of specific persons or unknown persons to be identified by the other side who are knowledgeable as to certain needed information.

The best approach to discovery is to combine the requests by making each separately numbered request in three parts — for example (subpart 1) asking for an admission of a fact, immediately followed by (subpart 2) asking if not given an unqualified admission, for answers to various interrogatories supporting the denial, including the names of witnesses supporting the denial, immediately followed by (subpart 3) asking for all documents to be produced and inspected supporting the denial.

Then you can follow up by serving notices of the oral or written depositions of specific individuals or ask for the other side to identify and produce for an oral deposition knowledgeable individuals as to certain specific issues in the case.

On today’s show we identify the general format for each successfully combined discovery request and list twenty specific three-part sample requests, as time permits, that could cause your foreclosing plaintiff to give up at an early stage in your foreclosure case, offering you an attractive loan modification in settlement, unless you are seeking an even better outcome at trial.

Please join John and me on today’s show and advance your understanding of the struggle between Validity Versus Falsity at the onset of a foreclosure case and how you can relatively inexpensively weaponize your discovery requests, preferably near the beginning of a foreclosure case and before, post-judgment, you are caught within a Validity Versus Finality controversy.

Gary

———————

GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Cellular: (808) 392-9191
Facsimile: (808) 523-7733
Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

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

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The Foreclosure Hour 12

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2 Attys DQ’d From Challenge To PNC Bank Home Foreclosure

2 Attys DQ’d From Challenge To PNC Bank Home Foreclosure

LAW 360-

Two attorneys representing homeowners who sued PNC Bank over a foreclosure were disqualified Wednesday after a Florida federal judge determined they had used inadvertently disclosed privileged information in their amended complaint….

[LAW360] PAYWALL

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Alessio v. OCWEN LOAN SERVICING, LLC | FL 4DCA – As there was no testimony with respect to personal knowledge of the practices of the entity which allegedly mailed the letter, the evidence was insufficient to prove that appellee complied with the condition precedent. We reverse.

Alessio v. OCWEN LOAN SERVICING, LLC | FL 4DCA – As there was no testimony with respect to personal knowledge of the practices of the entity which allegedly mailed the letter, the evidence was insufficient to prove that appellee complied with the condition precedent. We reverse.

 

GINO ALESSIO, a/k/a GINO DAVIDE ALESSIO, and FERNANDA ALESSIO, a/k/a FERNANDA LALIA CURY, Appellants,
v.
OCWEN LOAN SERVICING, LLC, Appellee.

No. 4D18-793.
District Court of Appeal of Florida, Fourth District.
May 1, 2019.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 502009CA035115AJ.

Kendrick Almaguer and Natalie M. Eusebe of The Ticktin Law Group, Deerfield Beach, for appellants.

James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.

WARNER, J.

Appellants challenge a final judgment of foreclosure. They raise several issues, one of which requires reversal. While the trial court concluded that through witness testimony appellee had established its compliance with the provisions of the mortgage that required notice of default to have been mailed to the appellant borrowers prior to acceleration, we disagree that the proof was adequate. In Torres v. Deutsche Bank National Trust Co., 256 So. 3d 903, 905 (Fla. 4th DCA 2018), we explained that where witness testimony is used to prove mailing, the witness must have personal knowledge of the business’s general practice in mailing letters. As there was no testimony with respect to personal knowledge of the practices of the entity which allegedly mailed the letter, the evidence was insufficient to prove that appellee complied with the condition precedent. We reverse.

Appellants executed a note and mortgage to IndyMac Bank, F.S.B., in 2007. In 2009, OneWest Bank, F.S.B., brought an action to foreclose the mortgage, alleging that it was the holder of the note and servicer for the owner of the note, Federal National Mortgage Association. Attached to the complaint was a copy of the promissory note with a blank endorsement from IndyMac. Appellants answered with various affirmative defenses, including OneWest’s failure to send a notice of default pursuant to Paragraph 22 of the mortgage, a condition precedent to foreclosure. During the proceedings, Ocwen was substituted as the party plaintiff for OneWest, as it had become the servicer of the loan.

The case proceeded to trial. A senior loan analyst for Ocwen testified. Prior to her employment with Ocwen, which began in 2014, she was employed with OneWest as a default litigation specialist from 2012-2013. The analyst described Ocwen’s boarding process, and through her testimony, the note, mortgage, and assignments of mortgage (from IndyMac to One West, and then to Ocwen) were admitted, as well as the loan payment history.

With respect to the notice of default, required by Paragraph 22 of the mortgage, appellee sought to admit the notice that was purportedly sent to the appellants in July 2009. The notice stated that it was from IndyMac Mortgage Services, a division of OneWest. The analyst identified the notice as being maintained in Ocwen’s system of records. The trial court admitted the notice as a business record of Ocwen, over the objection of appellants. Appellee’s witness also testified that there was no indication from Ocwen’s records that the letter was ever returned. During cross-examination, the analyst testified that IndyMac Mortgage Services was a division of OneWest Bank. As to the notice, she testified that she did not have any personal involvement in sending default letters, but OneWest did not utilize a vendor or third party to send out its letters. She had not observed the sending of breach letters by IndyMac Bank, nor was she ever employed by it or had access to its policies and procedures. Ocwen was not involved in sending the default letter to appellants. Appellee’s witness did testify that as part of her job description at OneWest, she was trained on how to determine whether a default letter was actually mailed. However, she never described the mail procedure at either IndyMac, OneWest, or Ocwen.

Appellants moved for involuntary dismissal at the end of appellee’s case on two grounds, including the lack of evidence that the default letter was actually mailed. The letter itself did not contain any proof that it was mailed, and there was no evidence to establish the regular business practices of IndyMac. Although the letter was boarded, there was no return receipt or mail log showing that it was mailed. The witness did not have personal knowledge of IndyMac’s mailing practices; thus, there was no evidence that the lender complied with the condition precedent of providing notice of the loan’s acceleration under Paragraph 22 of the mortgage.

Counsel for Ocwen responded that the witness testified that she was previously employed with OneWest, was familiar with its mailing procedures, and knew how to determine whether documents were mailed by OneWest based on its business records. Based on the witness’s review, the notice was sent. The letter was sent by IndyMac, which was a division of OneWest. The court noted that the letter identified IndyMac as a division of OneWest, and the analyst used to be employed with OneWest and understood the nature of its mailing procedures. It therefore denied the motion for involuntary dismissal.

Appellant Gino Alessio testified that he had never received the default letter. Following closing arguments, the court found that appellee had proved its case and entered final judgment of foreclosure. This appeal followed.

This Court reviews de novo the denial of a motion for involuntary dismissal. Torres v. Deutsche Bank Nat’l Tr. Co., 256 So. 3d 903, 905 (Fla. 4th DCA 2018). There must be competent substantial evidence that the lender complied with the conditions precedent to foreclosure under the terms of the mortgage, including the requirement that the notice of default was actually sent to the borrowers. See PNC Bank Nat’l Ass’n v. Roberts, 246 So. 3d 482, 485 (Fla. 5th DCA 2018).

Paragraph 22 of the mortgage requires that the lender give the borrower thirty days’ notice to cure a default prior to acceleration of the amount due. Paragraph 15 provides that notices to the borrower “shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower’s notice address if sent by other means.” Appellants contend that the evidence was insufficient to prove that the notice was mailed to them.

After the final judgment in this case, this court decided Torres v. Deutsche Bank National Trust Co., 256 So. 3d 903 (Fla. 4th DCA 2018). There, we discussed the requirement for a lender to present sufficient evidence that it actually mailed the default letter to the borrower:

Where there are conditions precedent to filing the foreclosure suit, a bank must prove that it has substantially complied with them. Ortiz v. PNC Bank, Nat’l Ass’n, 188 So. 3d 923, 925 (Fla. 4th DCA 2016). Along with the note, mortgage, and evidence regarding the outstanding debt on the loan, the default or acceleration letter must be introduced to demonstrate entitlement to foreclosure. Liberty Home Equity Sols., Inc. v. Raulston, 206 So. 3d 58, 60 (Fla. 4th DCA 2016). In addition to introducing the letter, the bank must also present competent, substantial evidence that the letter was actually mailed. Ensler v. Aurora Loan Servs., LLC, 178 So. 3d 95, 97 (Fla. 4th DCA 2015).

Evidence that a document was drafted is insufficient, standing alone, to establish that it was in fact mailed. See Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193, 1195 (Fla. 5th DCA 2014). Rather, the “mailing must be proven by producing additional evidence such as proof of regular business practices, an affidavit swearing that the letter was mailed, or a return receipt.” CitiBank, N.A. for WAMU Series 2007-HE2 Tr. v. Manning, 221 So. 3d 677, 681 (Fla. 4th DCA 2017) (quoting Allen v. Wilmington Tr., N.A., 216 So. 3d 685, 688 (Fla. 2d DCA 2017)).

If the evidence comes by way of witness testimony, “the witness must have personal knowledge of the company’s general practice in mailing letters.” Allen, 216 So. 3d at 688 (citing CitiMortgage, Inc. v. Hoskinson, 200 So. 3d 191, 192 (Fla. 5th DCA 2016)); accord Spencer v. Ditech Fin., LLC, 242 So. 3d 1189, 1191 (Fla. 2d DCA 2018). Mere reliance on the boarding process to prove that the notice letter was mailed is insufficient. See Allen, 216 So. 3d at 687.

Id. at 905. In this case, there was no proof of regular business practices or documents admitted to show that the document was actually mailed. The court originally admitted the notice as a business record of Ocwen, but as noted in Torres, reliance on the boarding process to prove that the notice was mailed is insufficient. The analyst testified that she had been taught by OneWest to determine whether a default letter was mailed, but she never described that process. As she began working for OneWest in 2012, she did not testify that the process used by IndyMac Mortgage Services in 2009 (when the letter allegedly was sent) was the same process used by OneWest when she commenced work for them three years later. In other words, she had no personal knowledge of the company’s general practice in mailing letters as it existed in 2009. In fact, there was no evidence presented of any process of mailing letters of any of the entities involved. Compare with Roberts, 246 So. 3d at 486 (finding evidence of the witness’s personal knowledge of the routine business practice of the Bank and its vendor regarding the mailing of letters was sufficient to prove mailing where the witness explained that the Bank ordered its letters from the outsourcing vendor, which printed, folded, placed them in window envelopes, sealed them, affixed postage and mailed them first class; the witness also testified that the vendor then provided a report to the Bank showing that the letter was mailed). Thus, there was insufficient evidence that the notice was mailed, and the trial court erred in denying the motion for involuntary dismissal. See Torres.

For the foregoing reasons, we reverse the final judgment of foreclosure and remand for dismissal of the action.

GROSS and FORST, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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New Jersey approves mortgage lending bill package

New Jersey approves mortgage lending bill package

Lexology-

On April 29, the New Jersey governor approved several bills related to mortgage lending in the state. According to a press release issued by the governor, the package of nine bills addresses the state’s foreclosure crisis and includes the following:

  • A 4997, known as the Mortgage Services Licensing Act, requires persons who act as mortgage servicers—either directly or indirectly—to obtain a license from the New Jersey Commissioner of Banking and Insurance for each office where business is conducted. The Act provides certain licensing exemptions, including federally insured banks and credit unions and their wholly-owned subsidiaries, those already licensed under the state’s Residential Mortgage Lending Act (the Act) who meet certain criteria, and the New Jersey Housing and Mortgage Finance Agency. However, the Act stipulates that sections 9 – 12, which discuss, among other things, record-keeping requirements, late fee restrictions, and required disclosures, apply to all persons, including exempt persons, acting as mortgage servicers in the state. Among other provisions, the Act (i) outlines licensing application requirements, procedures, and expiration terms; (ii) requires licensed mortgage servicers to file annual reports about loan servicing in the state; (iii) stipulates that licenses are non-transferable; (iv) mandates mortgage servicers to file a surety bond, fidelity bond, and evidence of coverage with the Commissioner; (v) requires compliance with all applicable federal laws including RESPA and TILA; (vi) requires mortgage servicers to keep a current schedule of service-related activity fees; and (vii) prohibits mortgage servicers from engaging in unfair or deceptive practices in connection with loan servicing. Moreover, the Act grants the Commission with supervision, investigation, and examination authority. The Act takes effect in 90 days.
  • A 5001 “reduces the statute of limitations in residential mortgage foreclosures from 20 years to six years from the date on which the debtor defaulted, in situations in which the date of default is used as the method to determine when the statute of limitations has expired.” A 5001 takes effect immediately and applies to all residential mortgages executed on or after the effective date.
  • S 3416 states that provisions of the New Jersey Residential Mortgage Lending Act now apply to certain out-of-state persons involved in residential mortgage lending in the state “provided they are otherwise required to be licensed pursuant to the provisions of the [A]ct. . . .” S 3416 takes effect immediately.
  • S 3411, among other things, (i) requires a notice of intention to foreclose on a residential mortgage to be filed within 180 days prior to commencing foreclosure, stating that if a foreclosure proceeding has not yet commenced, “the lender shall send a new written notice at least 30 days, but not more than 180 days, in advance of that action”; and (ii) limits the number of permitted reinstatements of dismissed mortgage foreclosure actions to three, with certain exceptions. S 3411 takes effect August 1, which is the first day of the fourth month following enactment.

[LEXOLOGY]

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City of Miami v. Wells Fargo & Co., BOA, Countrywide et al. | 11th Cir.  The City has plausibly alleged a violation of the FHA and has stated a claim in its First Amended Complaints. Accordingly we conclude that the district court improvidently dismissed the FHA claims in their entirety and ought to have granted the City leave to amend its complaints, since amendation would not have been futile.

City of Miami v. Wells Fargo & Co., BOA, Countrywide et al. | 11th Cir. The City has plausibly alleged a violation of the FHA and has stated a claim in its First Amended Complaints. Accordingly we conclude that the district court improvidently dismissed the FHA claims in their entirety and ought to have granted the City leave to amend its complaints, since amendation would not have been futile.

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Edmondson v. Eagle National Bank | 4th Cir. Court – certain lenders participated in “kickback schemes” prohibited by the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. …  We, however, hold that, under the allegations set forth in their complaints, Plaintiffs are entitled to relief from the limitations period under the fraudulent concealment tolling doctrine.

Edmondson v. Eagle National Bank | 4th Cir. Court – certain lenders participated in “kickback schemes” prohibited by the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. … We, however, hold that, under the allegations set forth in their complaints, Plaintiffs are entitled to relief from the limitations period under the fraudulent concealment tolling doctrine.

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TFH 5/5 | Foreclosure Workshop #73: Wells Fargo Bank v. Prentice – Highlighting Another Emerging Challenge to Res Judicata in the Battle Between Finality Versus Validity

TFH 5/5 | Foreclosure Workshop #73: Wells Fargo Bank v. Prentice – Highlighting Another Emerging Challenge to Res Judicata in the Battle Between Finality Versus Validity

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)

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Sunday – MAY 5, 2019

Foreclosure Workshop #73: Wells Fargo Bank v. Prentice – Highlighting Another Emerging Challenge to Res Judicata in the Battle Between Finality Versus Validity

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As a result of an increase in the number of judicial decisions more favorable to mortgage borrowers in many but not all state and federal courts, foreclosed homeowners are returning in greater numbers, challenging their otherwise completed foreclosures.

During several of our prior shows we have referred to this newest and perhaps most significant issue emerging in foreclosure defense today as “Finality Versus Validity”.

As foreclosed borrowers seek post-judgment relief today, they are being derailed in the process by three especially formidable foes, (1) res judicata, (2) stare decisis, and (3) laches, each of which has its own underlying rationale for blocking the setting aside of judgments, irrationally even those that can be shown to have been procured by fraud.

On last week’s show we examined this last frontier in foreclosure defense by contrasting two foreclosure cases, one in the Marcantonio Appeal presently before the Supreme Court of the State of Hawaii awaiting a decision on an Application for Writ of Certiorari so far denied post-judgment relief, and the other in the Takhar Appeal just decided by the Supreme Court of Great Britain, granting post-judgment relief.

The contrast between those two Appeals we pointed out is especially significant, since not only is this battle between Finality Versus Validity inevitably going to take place eventually in every American jurisdiction, but Great Britain is after all where the doctrine of res judicata originated in Anglo-Saxon jurisprudence.

Unfortunately, due to an errant wire in our office studio last week, and not caused by the Banksters as some thought, there was considerable static on last week’s broadcast which has delayed its placement in the past broadcast section of our website, www.foreclosurehour.com.

We have, however, cleaned up the audio sufficiently to make it easier to listen to, which audio is now on our website today, together with relevant copies of both of the above-referenced contrasting appeals.

Today’s show discusses Validity deficiencies in yet another nightmarish foreclosure case, Prentice, and highlights even more serious problems than ever before for Finality worshippers.

The facts in Prentice will surely open everyone’s eyes to why Finality must give way to Validity in the foreclosure field.

Be sure therefore to be with John and me this Sunday, especially if you are planning or now in the process of trying to reopen your foreclosure case by taking advantage of new case precedents in your individual jurisdiction.

You will not want to miss this broadcast in order to understand the future of foreclosure defense in this again, the last and final frontier.

Gary

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GARY VICTOR DUBIN
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
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Email: gdubin@dubinlaw.net.

Host: Gary Dubin Co-Host: John Waihee

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The Foreclosure Hour 12

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NATIONSTAR MORTGAGE LLC, vs. DANIEL KALEOALOHA KANAHELE and THE ESTATE OF MARCUS C. KANAHELE et al., | HAWII ICA – In conclusion, if Nationstar can prove on remand that it possessed the Note with three indorsements prior to filing its Complaint, it will establish its standing to enforce the Note under Reyes-Toledo. However, Nationstar conceded its status as “holder”

NATIONSTAR MORTGAGE LLC, vs. DANIEL KALEOALOHA KANAHELE and THE ESTATE OF MARCUS C. KANAHELE et al., | HAWII ICA – In conclusion, if Nationstar can prove on remand that it possessed the Note with three indorsements prior to filing its Complaint, it will establish its standing to enforce the Note under Reyes-Toledo. However, Nationstar conceded its status as “holder”

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TANIGUCHI et al., v. RESTORATION HOMES, LLC, | CA 1st App. Court – The trial court order granting Restoration Homes’ motion for summary adjudication on the Taniguchis’ causes of action for violation of Civil Code section 2924c and Business and Professions Code section 17200 et seq. is vacated, and the matter is remanded

TANIGUCHI et al., v. RESTORATION HOMES, LLC, | CA 1st App. Court – The trial court order granting Restoration Homes’ motion for summary adjudication on the Taniguchis’ causes of action for violation of Civil Code section 2924c and Business and Professions Code section 17200 et seq. is vacated, and the matter is remanded

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