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TILA Violations ‘Originator’| HUBBARD v Ameriquest, Deutsche, AMC Mtg. Svcs. 2008

TILA Violations ‘Originator’| HUBBARD v Ameriquest, Deutsche, AMC Mtg. Svcs. 2008

Conclusion

Based on the foregoing analysis, the Court denies Plaintiff’s motion for summary judgment [103] as to AMC and grants Plaintiff’s motion for summary judgment [103] as to Ameriquest and Deutsche Bank, finding both Ameriquest and Deutsche Bank liable for rescission, statutory damages, and costs and attorneys’ fees. Plaintiff is given until October 14, 2008, in which to submit supplemental briefing, consistent with this decision, on the appropriate damage calculations and how to properly unwind the transaction for rescission purposes.

Ameriquest and Deutsche Bank will have until October 25, 2008, in which to respond to 12 In Payton, the court concluded that statutory damages could not be imposed on the assignee because the violation was not apparent on its face, but that an award of attorney’s fees against the assignee was appropriate because the plaintiff had brought a successful action for rescission. 2003 WL 22349118, at *7-*8.

Case 1:05-cv-00389 Document 143 Filed 09/30/2008

Plaintiff’s calculation of damages and briefing on rescission. Finally, the Court denies
Defendants’ motion to strike portions of Plaintiff’s renewed motion for summary judgment [113]
as moot in light of the discussion above.

[ipaper docId=34060224 access_key=key-rk9bwrurkff7w7wfmw8 height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in deutsche bank, foreclosure, foreclosures, originator, tila, truth in lending act, Violations0 Comments

TEMPORARY RESTRAINING ORDER (TRO) & INJUNCTIONS BY FORECLOSURE

TEMPORARY RESTRAINING ORDER (TRO) & INJUNCTIONS BY FORECLOSURE

Legal information is NOT legal advice. The material or information herein should NOT be taken as legal advice and is NOT a substitute for the assistance of a licensed advisor. I AM NOT AN ATTORNEY.

If you are facing foreclosure or have a sale date pending and you have proper legal grounds to challenge the foreclosure etc., there is a handful of strategies. You may be able to get a Temporary Restraining Order (TRO) and eventually a Preliminary Injunction.

Hopefully, there is valid grounds to halt the foreclosure sale.

Do however, be cautious NOT to file a lawsuit to simply try to delay, look at the options you have:

Do NOT go with the mind set you are going to get a free and clear house.

Do your research before shot gunning to file a Quiet Title. Again, what are the requirements in order to have this ground? This might fire back at you.

If you are not certain of what to do next contact a knowledgeable foreclosure defense attorney. I made a list of what to look for before choosing an Attorney who understands foreclosure defense.

[ipaper docId=30727439 access_key=key-si3seeiaeqhgidqv9yh height=600 width=600 /]

Disclaimer: The information herein should not be taken as legal advice and is not a substitute for the assistance of a licensed advisor. I AM NOT AN ATTORNEY.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in foreclosure, foreclosure fraud, foreclosures, lawsuit, quiet title, tila, TRO, truth in lending act, Violations0 Comments

NEVADA is on a ROLL! ALOUA v. AURORA LOAN SERVICES, LLC, Dist. Court, D. Nevada 2010

NEVADA is on a ROLL! ALOUA v. AURORA LOAN SERVICES, LLC, Dist. Court, D. Nevada 2010

PIA MARIE T. CORDERO ALOUA, Plaintiff,
v.
AURORA LOAN SERVICES, LLC; LEHMAN BROTHERS BANK, FSB; QUALITY LOAN SERVICE CORPORATION; Does I-X, inclusive, Defendants.

Case No. 2:09-CV-00207-KJD-RJJ.

United States District Court, D. Nevada.

June 23, 2010.

ORDER

KENT J. DAWSON, District Judge. Currently before the Court is Defendants Aurora Loan Services, LLC, and Lehman Brothers Bank, FSB’s Motion to Dismiss (#15).[1] Plaintiff Pia Marie T. Cordero Aloua filed a Response and Opposition (#18) to Defendants’ Motion on October 5, 2009, to which Defendants filed a Reply (#19) on October 20, 2009.

I. Background

Plaintiff financed the real property located at 116 Peachy Court in Las Vegas, Nevada (“subject property”) on or about the 5th day of July, 2007. At that time, Plaintiff executed an adjustable rate loan (“first loan”) in the principal amount of $768,987.00 and a fixed-rate balloon loan (“second loan”) in the principal amount of $144,185.00. Lehman Brothers, which changed its name to Aurora Bank on April 24, 2009, was the original lender, and Aurora Loan Services (“ALS”) was appointed as the loan servicer on August 16, 2007. Plaintiff’s first loan, which was placed in the sub-prime category, was financed based upon a yearly adjustable interest rate of 9.375% and was to be paid to Lehman Brothers by monthly payments beginning in September 2007. Plaintiff avers that the sub-prime designation of her loan, which led to higher fees and interest, was in error because Plaintiff had verifiable income and a credit score sufficient to qualify for the traditional prime rate. Defendants aver that Plaintiff defaulted on her loans in December 2007, leading to foreclosure proceedings which were ultimately completed on July 14, 2008 through Quality Loan Service Corporation (“QLS”), the appointed substitute trustee. ALS claims to have acquired title to the subject property through said foreclosure proceedings. Plaintiff avers, however, that she did not default on her loans and that the foreclosure sale was carried out without serving the required notices and without giving Plaintiff the appropriate opportunity to avert the sale. On January 7, 2009, Plaintiff commenced this action in the District Court for Clark County, Nevada. The action was removed to this Court on February 2, 2009 on the basis of federal question and diversity jurisdiction. (See #1.) On September 2, 2009, Plaintiff filed an Amended Complaint against all Defendants, alleging the following causes of action: (1) intentional misrepresentation; (2) negligence per se under the federal Real Estate Settlement Procedures Act (“RESPA”) and the federal Truth in Lending Act (“TILA”); (3) negligence; (4) rescission under TILA; (5) wrongful foreclosure; and (6) quiet title. On September 21, 2009, Defendants filed a Motion to Dismiss the First Amended Complaint (#15). For the reasons discussed below, the Court grants the Motion to Dismiss in part and denies it in part.

II. Discussion

A. Motion to Dismiss

A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted). In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the Court must accept as true all well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949. Second, the Court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal quotation marks omitted). When the claims in a complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.

III. Analysis

A. Intentional Misrepresentation

Plaintiff alleges Defendants knowingly made false misrepresentations to Plaintiff, upon which Plaintiff justifiably relied to her detriment. To state a claim for fraudulent misrepresentation in Nevada, a plaintiff must allege that (1) defendant made a false representation; (2) defendant knew or believed the representation to be false; (3) defendant intended to induce plaintiff to rely on the misrepresentation; and (4) plaintiff suffered damages as a result of his reliance. Bartmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998). Misrepresentation is a form of fraud where a false representation is relied on in fact. See Pacific Maxon, Inc. v. Wilson, 96 Nev. 867, 871 (Nev. 1980). Fraud has a stricter pleading standard under Rule 9, which requires a party to “state with particularity the circumstances constituting fraud.” FED. R. CIV. P. 9(b). Pleading fraud with particularity requires “an account of the time, place, and specific content of the false representations, as well as the identities of the parties of the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007); see also Morris v. Bank of Nev., 886 P.2d 454, 456 n.1 (Nev. 1994). The Ninth Circuit has held, however, that the stricter pleading requirements of Rule 9(b) “may be relaxed with respect to matters within the opposing party’s knowledge,” reasoning that “[i]n such situations, plaintiffs can not (sic) be expected to have personal knowledge of the relevant facts.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (citing Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir. 1987); Moore v. Kayport Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989). Even under this relaxed version of Rule 9(b), however, “a plaintiff who makes allegations on information and belief must state the factual basis for the belief.” Id. Here, Plaintiff alleges that Defendants knowingly concealed the true nature of her credit score and defrauded her by placing her loan in the sub-prime category to charge higher commissions. Plaintiff also alleges, among other things, that Defendants misrepresented the fees charged and paid in association with her loan, as well as her eligibility to participate in a loan modification program. Taking these assertions as true, the Court finds Plaintiff has sufficiently stated a claim for fraud: Plaintiff alleges that Defendants intentionally misrepresented information to her, that she relied on these representations, and that she was damaged as a result.

B. Negligence per se

To state a claim for negligence per se, a plaintiff must allege that (1) he or she belongs to a class of persons that a statute was intended to protect; (2) defendant violated the relevant statute; (3) plaintiff’s injuries are the type against which the statute was intended to protect; (4) the violation was the legal cause of plaintiff’s injury; and (5) plaintiff suffered damages. See Anderson v. Baltrusaitus, 944 P.2d 797, 799 (Nev. 1997). Whether a particular statute establishes a standard of care in a negligence action is a question of law. Vega v. E. Courtyard Assocs., 24 P.3d 219, 221 (Nev. 2001). Plaintiff claims Defendants violated provisions of TILA, 15 U.S.C. § 1601, et seq., and RESPA, 12 U.S.C. § 2601, et seq., dealing with a lender’s disclosure duties. Defendants argue that the TILA claim is time barred because the statute of limitations has run. Section 1640(e) of TILA requires that claims be brought within one year of the date of the loan transaction. Interpreting this provision, the Ninth Circuit has held that while as a general rule the limitations period runs from the date the transaction is consummated, the doctrine of equitable tolling may, when appropriate, toll the limitations period until the borrower has had a reasonable opportunity to discover the facts giving rise to a TILA claim. King v. California, 784 F.2d 910, 915 (9th Cir. 1986). The Ninth Circuit has also held that the equitable tolling analysis is a factual one: the finder of fact must determine whether equitable tolling will prevent unjust results or maintain the integrity of the relevant statute. Id. Because these factual questions are yet to be resolved, the Court is unable to say at this stage in the litigation whether the statute of limitations has run. Therefore, Defendants’ Motion to Dismiss Plaintiff’s TILA claim on statute of limitations grounds is denied. Moreover, after reviewing the Complaint, the Court finds Plaintiff has adequately stated a TILA claim against Defendants. Plaintiff alleges Defendants (1) failed to disclose the identity of persons and entities who share the service fees and other charges for her loans; (2) failed to disclose the percentage of the loan amount paid to the nominal lender; and (3) failed to disclose relevant credit terms to enable Plaintiff to compare market rates and prevent unfair credit practices. (Dkt. #14, Compl. ¶ 26-28.) Taking these assertions as true, Plaintiff has stated a viable claim for relief under TILA. Plaintiff has failed, however, to sufficiently state a claim for negligence per se under RESPA. 12 U.S.C. § 2601, et seq. As a general rule, RESPA does not create an express or implied private right of action. Collins v. FMHA-USDA, 105 F.3d 1366, 1367-68 (11th Cir. 1997); Bamba v. Resource Bank, 568 F. Supp. 2d 32, 34-35 (D.D.C. 2008); Morrison v. Brookstone, 415 F. Supp. 2d 801, 806 (S.D. Ohio 2005); McWhorter v. Ford Consumer Fin. Co., 33 F. Supp. 2d 1059, 1064 (N.D. Ga. 1997). A limited exception to this rule exists: a private right of action exists under RESPA when a specific statutory provision mentions such a right. See Bloom v. Martin, 865 F. Supp. 1377, 1384-85 (N.D. Cal. 1994). Although Plaintiff alleges Defendants violated several provisions of RESPA, the only section she references with any specificity is § 2605. Accordingly, because this section of the statute does not provide a private right of action, Plaintiff’s claim for negligence per se under RESPA fails.

C. Rescission

Plaintiff also alleges she is entitled to a rescission of the mortgage contract under TILA, 15 U.S.C. § 1635. Plaintiff is incorrect. Section 1635 of TILA establishes that lenders must notify borrowers of their right to rescind and outlines the penalties for failure to comply with this requirement. Nonetheless, § 1635 expressly states that these provisions do not apply to “residential mortgage transactions.” A residential mortgage transaction is defined in 15 U.S.C. § 1602(w) as a “transaction in which a mortgage . . . interest is created or retained against the consumer’s principal dwelling.” See also 12 C.F.R. § 226.2(a)(24). This is precisely what Plaintiff’s mortgage contract entailed: the parties entered into a transaction in which Plaintiff attained financing from Defendants to acquire residential property. Because Plaintiff is not entitled to rescind the mortgage contract, her rescission claim under § 1635 fails as a matter of law and Defendant’s Motion to Dismiss is granted as to Plaintiff’s rescission claims.

D. Wrongful Foreclosure

Plaintiff also alleges wrongful foreclosure. “An action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” Collins v. Union Federal Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983). “The material issue of fact in a wrongful foreclosure claim is whether the trustor was in default when the power of sale was exercised.” Id. Here, Plaintiff affirmatively alleges that she was not in default of payment to the lender at the time the foreclosure occurred, and therefore, the representations as stated on the Notice of Default were false.[2] Taking these assertions as true, the Court finds that Plaintiff has adequately stated a claim for wrongful foreclosure against Defendants. Therefore, Defendants’ Motion to Dismiss is denied as to Plaintiff’s wrongful foreclosure claim.

E. Negligence against QLS

To bring a negligence claim in Nevada, a plaintiff must show that (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; (3) defendant’s breach was the actual and proximate cause of plaintiff’s injuries; and (4) plaintiff was injured. Scialabba v. Brandise Constr., 921 P.2d 928, 930 (Nev. 1996). Liability based on negligence does not exist without a breach of duty. Bradshaw v. Blystone Equip. Co. of Nev., 386 P.2d 396, 397 (Nev. 1963). Plaintiff claims that Defendant QLS, “as trustee under the deed of trust, had a duty to Plaintiff to ensure that any party instructing it to conduct a foreclosure sale of the property actually owned and had rights under the note and deed of trust.” (See #14, Compl. ¶ 32.) Plaintiff also alleges that Defendant QLS’s failure to take the appropriate steps to comply with this duty was the actual and proximate cause of damages to Plaintiff. Id. at ¶ 33-39.) At this point, because Plaintiff’s claim for wrongful foreclosure remains, the Court also finds that Plaintiff has sufficiently pled a claim for negligence.

F. Quiet Title

Finally, Plaintiff brings a claim of quiet title, arguing that because foreclosure was wrongful, Plaintiff remains the rightful owner of the subject property. Taking these assertions as true, Plaintiff has stated a claim for wrongful foreclosure against Defendants. Therefore, Defendants’ Motion to Dismiss is denied as to Plaintiff’s quiet title claim.

IV. Conclusion

Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#15) is GRANTED in part and DENIED in part as follows:

Defendants’ Motion to Dismiss Plaintiff’s claim for intentional misrepresentation is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence per se under TILA is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence per se under RESPA is GRANTED.

Defendants’ Motion to Dismiss Plaintiff’s claim for negligence against QLS is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for rescission under TILA is GRANTED.

Defendants’ Motion to Dismiss Plaintiff’s claim for wrongful foreclosure is DENIED.

Defendants’ Motion to Dismiss Plaintiff’s claim for quiet title in DENIED.

[1] Defendant Quality Loan Service Corporation filed a Joinder (#22) to Defendant’s Motion to Dismiss that is considered together with Defendant’s Motion herein. [2] If matters outside of the pleadings are submitted in conjunction with a motion to dismiss, Rule 12(b) grants courts discretion to either accept and consider, or to disregard such materials. See Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir.1988). A court exercises this discretion by examining whether the submitted material, and the resulting conversion from the Rule 12(b)(6) to the Rule 56 procedure, may facilitate disposing of the action. Id. at 193 n.3. If the court elects to convert the motion, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, Defendants have attempted to provide evidence refuting Plaintiff’s no default claim, Plaintiff however, has not had an adequate opportunity to fully brief this issue. Accordingly, without opining whether Plaintiff’s claims may survive a summary judgment motion, the Court elects not to convert Defendants’ immediate Motion into one for summary judgment.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in aurora loan servicing, breach of contract, concealment, conspiracy, foreclosure, foreclosure fraud, lehman brothers, respa, tila, truth in lending act, Violations0 Comments

It’s All About the Principal: Preserving Consumers’ Right of Rescission Under the Truth in Lending Act

It’s All About the Principal: Preserving Consumers’ Right of Rescission Under the Truth in Lending Act

Lea Krivinskas Shepard
Loyola University Chicago School of Law

North Carolina Law Review, Vol. 89, 2010

Abstract:
This Article explores a significant market-based threat to the Truth in Lending Act’s right of rescission, a remedy that attempts to deter lender overreaching and fraud during one of the most complex financial transactions of a borrower’s lifetime. The depressed housing market has substantially impaired many borrowers’ ability to fulfill their responsibilities in rescission’s unwinding process: restoring the lender to the status quo ante by repaying the net loan proceeds of the mortgage transaction.

When a consumer is unable to finance her tender obligation, non-bankruptcy judges’ overwhelming response has been to protect the lender and deny rescission to the borrower. This Article argues that these courts, to fulfill TILA’s consumer-protective function, must take a different approach. Non-bankruptcy courts, which handle the vast majority of TILA rescission actions, should use their equitable authority under TILA to modify borrowers’ repayment obligations by allowing borrowers to tender in installments, over a period of years, and at reasonable interest rates. This approach both averts foreclosures that harm borrowers, lenders, and neighborhoods and ensures that TILA’s consumer-protective mandate will remain viable even in a depressed housing market.

This Article also considers an important aspect of TILA’s rescission remedy that, while tacitly acknowledged by courts and commentators, has been insufficiently explored in the academic literature. There exists an uneasy tension between the goal of the Truth in Lending Act – informing consumers of the financial consequences of their mortgage loan transactions – and borrowers’ frequent use of TILA rescission: defending their homes from foreclosure actions that the lender’s disclosure violation may or may not have precipitated. The Article concludes that TILA rescission actions, albeit a blunt instrument in the consumer protection setting, must be preserved, particularly during periods of economic calamity, since it remains a singular source of borrower leverage in a legal and economic climate that remains generally inhospitable to homeowners.

Accepted Paper Series

[ipaper docId=33526818 access_key=key-29yw7fc4p6kdwaelulz0 height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bankruptcy, mortgage modification, tila0 Comments

TILA ‘VIOLATION’ TIMELY FILED REVERSAL & REMAND: Luce Frazile v. EMC Mortgage Corporation, 09-15560

TILA ‘VIOLATION’ TIMELY FILED REVERSAL & REMAND: Luce Frazile v. EMC Mortgage Corporation, 09-15560

FRAZILE v. EMC MORTGAGE CORPORATION

LUCE FRAZILE, Plaintiff-Appellant,
v.

EMC MORTGAGE CORPORATION, a Foreign corporation, FREMONT REORGANIZING CORPORATION, a foreign corporation, Defendants-Appellees.

No. 09-15560. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

June 11, 2010.

Before BIRCH, MARTIN and ANDERSON, Circuit Judges.

DO NOT PUBLISH

PER CURIAM:

Luce Frazile brought this action against EMC Mortgage Corporation (“EMC”) and Fremont Reorganizing Corporation (“Fremont”). She alleges that in executing and servicing her mortgage loan the defendants misrepresented the true nature of her obligations and violated various federal loan processing requirements. The district court granted the defendants’ motions to dismiss. This appeal followed. For reasons we will discuss, we affirm in part, reverse in part, and remand to the district court.

I.

Accepting the factual allegations of the complaint as true and construing them in the light most favorable to Frazile, the relevant facts are as follows. In 2006, a Fremont agent approached Frazile and encouraged her to refinance the home mortgage on her primary residence, which she alone owned. After she refinanced, it quickly became apparent that Frazile could not afford the payments on her newly refinanced mortgage and she turned to Fremont to rework the agreement’s terms. On November 16, 2006, Frazile again refinanced her mortgage loan. However, Frazile claims that at closing Fremont never provided her with certain documents, namely a consumer handbook on adjustable rate mortgages, two copies of a notice of right to cancel the mortgage, or a closing package. She further alleges that at some point after closing, EMC was assigned either the mortgage and note, loan servicing responsibility, or some combination of these.

Approximately two years after closing, in November 2008, Frazile attempted to rescind her mortgage loan transaction, a right to which she claimed entitlement under the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667f. In December 2008, Frazile finally received a “less-than-complete copy of the closing package” from EMC. In these documents, her monthly income was misstated as $4,000, well above her actual $1,200 monthly earnings. Under the terms of the mortgage, the required monthly payments actually exceeded her monthly income. According to her complaint, “[t]he cumulative effect of increased monthly mortgage payments, property taxes and insurance premiums was to create an onerous financial burden on Frazile that would seriously jeopardize her ownership of the homestead of sixteen (16) years.”

On June 15, 2009, Frazile filed this lawsuit. In addition to three state law claims, she sought relief under the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617, TILA, and relevant federal regulations. The defendants filed Rule 12(b)(6) motions to dismiss for failure to state a claim. The district court granted the defendants’ motions, dismissing with prejudice Frazile’s federal claims, declining to exercise supplemental jurisdiction as to her remaining state law claims, and closing the case. Frazile now appeals, challenging only the district court’s ruling as to her two federal claims.

II.

“We review de novo the district court’s grant of a motion to dismiss under Rule 12(b)(6).” Redland Co. v. Bank of Am. Corp., 568 F.3d 1232, 1234 (11th Cir. 2009). While we accept all allegations of the complaint as true, the “[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). In other words, the plaintiff must “allege[] enough facts to suggest, raise a reasonable expectation of, and render plausible” the claims. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009). Furthermore, although the pleading party is not required to “allege a specific fact to cover every element or allege with precision each element of a claim, it is still necessary that a complaint contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (citation and internal quotation marks omitted).

A.

Count I of the complaint alleged violation of RESPA. In her complaint, Frazile specifically identified only one provision of that statute as the basis for her claims. She asserted that the defendants’ statutorily required “good faith estimate” failed to “timely provide [her] with full disclosure regarding the nature and the cost of the loan” including the “amount or range of settlement charges.” For this reason, she alleged that the defendants violated 12 U.S.C. § 2604(c).

We have held in the past that “there is no private civil action for a violation of 12 U.S.C. § 2604(c), or any regulations relating to it.” Collins v. FMHA-USDA, 105 F.3d 1366, 1368 (11th Cir. 1997). For this reason, we affirm the district court’s conclusion that all claims brought under this provision must fail.

However, the district court went on to liberally construe Frazile’s complaint. The court examined Frazile’s argument, made in response to the defendants’ motions to dismiss, that she had pleaded sufficient facts to give rise to a claim under 12 U.S.C. § 2605. Section 2605 does afford a private cause of action, and requires that “[e]ach transferee servicer to whom the servicing of any federally related mortgage loan is assigned, sold, or transferred shall notify the borrower of any such assignment, sale, or transfer.” 12 U.S.C. § 2605(c)(1). The district court dismissed any claim arguably brought under § 2605 on the grounds that Frazile failed to allege either (1) actual damage from the nondisclosure of the assignment of the servicing of the loan—as compared to nondisclosure of the terms of the mortgage—or (2) a pattern or practice of nondisclosure by the defendants that would warrant statutory damages. Such an allegation is a necessary element of any claim under § 2605. Id. § 2605(f). After careful review of the complaint, we agree with the conclusion of the district court that Frazile failed to allege facts relevant to the necessary element of damages caused by assignment. She did not, therefore, state a claim under § 2605.

On appeal, Frazile first acknowledges that her “complaint, as drafted, alleges that the [RESPA] violations were of § 2604(c), only.” Despite this fact, and without citation to any statutory provision, relevant regulation, or binding authority, Frazile sets out a series of other RESPA claims that she argues can be inferred from the facts alleged in her complaint. Her attempts to salvage a RESPA claim, however, are without merit. Frazile seems to suggest that she can assert a cause of action under 12 U.S.C. § 2607 (prohibiting kickbacks, markups, and fee splitting for services not performed) or 12 U.S.C. § 2605(e) (setting out the proper form and timing of responses to qualified written requests).

Frazile never raised arguments regarding § 2607 at the district court, even though she had the opportunity to do so. When, for instance, the defendants pointed out in their respective motions to dismiss that § 2604(c) could not support a private cause of action, Frazile did not argue that her complaint alleged facts sufficient to give rise to claims of unlawful markups, kickbacks, or fee splitting. Instead, as it related to RESPA, Frazile’s responsive filing focused entirely on § 2605. She argued that although she had cited only § 2604(c), “[t]he motion to dismiss should be denied because Ms. Frazile is afforded a private or individual cause of action under § 2605.” “[W]e have repeatedly held that `an issue not raised in the district court and raised for the first time in an appeal will not be considered by this court.’” Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994) (quoting Depree v. Thomas, 946 F.2d 784, 793 (11th Cir. 1991)). If we were to try and address these new arguments on appeal, “we [would] have nothing to go on other than scattered (and unsupported) factual references in the appellant[`s] brief before this Court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004). Under this standard, Frazile failed to preserve a § 2607 claim.

In addition, after careful review of Frazile’s complaint, we cannot conclude that Frazile “alleged enough facts to suggest, raise a reasonable expectation of, and render plausible” claims brought under either § 2607 or § 2605(e). See Watts, 495 F.3d at 1296. Relying solely on the allegations of the complaint, we conclude that Frazile’s pleading did not afford the defendants fair notice either that she brought a claim for payment of unlawful kickbacks, markups, or fee splitting, or that she brought a claim based on the inadequacy of their response to her qualified written request. In other words, her complaint did not include factual allegations sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1965.

For the foregoing reasons, the district court did not err when it held that Frazile’s complaint failed to state a RESPA claim.

B.

Frazile also sought relief under TILA, alleging that the defendants violated 15 U.S.C. §§ 1635, 1640, and 1641 as well as Regulation Z, 12 C.F.R. § 226. She asked that the district court remedy her losses by rescinding her mortgage transaction and awarding damages, costs, and attorney’s fees. The district court rejected Frazile’s TILA claims on the grounds that rescission was not available for residential mortgage transactions of the type at issue in Frazile’s suit and that any claim for damages was time-barred.

The district court turned to 15 U.S.C. § 1635(e)(1) to dispense with Frazile’s rescission claim. However, its reliance on this provision was misplaced. TILA exempts from the right of rescission residential mortgage transactions “to finance the acquisition or initial construction of such dwelling.” See 15 U.S.C. §§ 1635(e)(1), 1602(w); 12 C.F.R. §§ 226.23(f)(1), 226.2(a)(24). However, the facts alleged in Frazile’s complaint clearly demonstrate that the mortgage at issue was obtained as part of a refinancing transaction. Thus, § 1635(e)(1)’s exemption is not applicable.[ 1 ]

Frazile also sought damages, attorney’s fees, and costs under § 1640(a) both for the defendants’ failure to comply with the statute’s disclosure requirements and for their failure to properly respond to her November 2008 rescission request. The district court addressed only the former issue, deeming any claim for damages time-barred under § 1640(e), which requires that plaintiffs bring suit “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e).

This Court has observed that a TILA nondisclosure “violation `occurs’ when the transaction is consummated,” in other words, at the time of closing of a residential mortgage transaction. Smith v. Am. Fin. Sys., Inc. (In re Smith), 737 F.2d 1549, 1552 (11th Cir. 1984). Insofar as nondisclosure is concerned, we have held that the violation “is not a continuing violation for purposes of the statute of limitations.” Id. We have also recognized that the doctrine of equitable tolling might salvage a stale TILA claim where the debtor “ha[s] been prevented from [bringing suit] due to inequitable circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706-08 (11th Cir. 1998).

The alleged nondisclosure occurred at closing on November 16, 2006, more than a year prior to the commencement of this suit. As the district court correctly observed, the complaint’s relevant assertions of misconduct all relate to conduct that took place on or before closing. Because Frazile filed this suit on June 15, 2009, more than one year later, her damages action for noncompliance with TILA’s disclosure requirements is time-barred.[ 2 ]

However, the district court did not evaluate whether the defendants’ failure to timely rescind the mortgage transaction amounted to a separate violation of § 1635(b), which is actionable under § 1640(a). See In re Smith, 737 F.2d at 1552. When a borrower exercises a valid right to rescission, the creditor must take action within twenty days after receipt of the notice of rescission, returning the borrower’s money and terminating its security interest. See 15 U.S.C. § 1635(b). Failure to do so constitutes a separate violation of TILA, actionable under § 1640. Therefore, the one-year limitations period for violation of § 1635(b) claims runs from twenty days after a plaintiff gives notice of rescission. See Belini v. Wash. Mut. Bank, FA, 412 F.3d 17, 26 (1st Cir. 2005) (holding that though the plaintiffs had conceded that their disclosure-based TILA claims were time-barred, the statute of limitations had not yet run on claims arising out of noncompliance with § 1635(b)’s twenty-day requirement). Frazile alleged that in November 2008 she exercised her statutory right to rescind and that the defendants failed to timely respond. Frazile then filed this action on June 15, 2009. Thus, Frazile’s cause of action for inadequate response to her notice of rescission is not time-barred.[ 3 ]

We recognize that the defendants set out a series of alternative grounds on which we might affirm the district court’s dismissal of Frazile’s TILA claims. Despite our authority to affirm on other grounds, we think the better course is to leave these issues for appropriate factual and legal development by the district court. See Jones v. Dillard’s, Inc., 331 F.3d 1259, 1268 n.4 (11th Cir. 2003). On remand, the district court should therefore evaluate the defendants’ other grounds for dismissal and determine whether Frazile has, in fact, stated a TILA claim. If she has, the district court must then determine whether the alleged nondisclosures preserved Frazile’s right to rescind for three years, see 15 U.S.C. § 1635(f), and whether Frazile has alleged that the defendants violated TILA’s rescission procedures by failing to adequately respond to her rescission notice, see id. § 1635(b).

III.

For the foregoing reasons, the district court’s dismissal of Frazile’s RESPA claims is AFFIRMED. However, we REVERSE as to Frazile’s TILA claims and REMAND for proceedings consistent with this opinion.

1. We are aware that under 15 U.S.C. § 1635(e)(2) the right to rescind does not apply to certain refinancing and consolidation loans. However, neither the district court nor either defendant—in their motions to dismiss or on appeal—cites to or relies upon this provision when arguing that Frazile failed to state a TILA claim. Furthermore, even if § 1635(e)(2) were applicable, Frazile might still have a right to rescind “to the extent the new amount financed exceed[ed] the unpaid principal balance, any earned unpaid finance charge on the existing debt, and amounts attributed solely to the costs of the refinancing or consolidation.” 12 C.F.R. § 226.23(f)(2).
2. In her briefs on appeal, Frazile asserts that the district court should have deemed the statute of limitations equitably tolled because the defendants did not supply her with the relevant TILA-required disclosures until December 2008 or January 2009, and that the documents eventually provided were incomplete. She also claims that the statute of limitations defense is inapplicable because the exact date of the closing is in question.Frazile’s equitable tolling arguments fail. The alleged nondisclosure of TILA-related documents is the same conduct that makes up the TILA violation itself, a violation that we have deemed noncontinuing for statute of limitation purposes. See In re Smith, 737 F.2d at 1552. To hold otherwise would mean that any failure to disclose at the time of closing would not only give rise to a TILA claim, but would also toll the statute of limitations, thereby eviscerating the time limit expressly set out in § 1640(e). Frazile knew in 2006, at the time of closing, that she had not been supplied with the documents. Her ability to bring suit within one year of this alleged TILA violation was not affected by the defendants’ failure to provide the required documents at closing or by EMC’s purportedly incomplete disclosures two years later.Insofar as she questions the exact date of the closing, Frazile’s argument is directly contradicted by the allegations of her own complaint, in which she clearly and repeatedly asserts that the refinancing transaction closed on November 16, 2006.

Thus, Frazile has failed to state facts sufficient to demonstrate that she was prevented from filing this lawsuit by extraordinary circumstances that were both beyond her control and unavoidable and that she had diligently sought to preserve her statutory rights within a year of the alleged nondisclosure violation. See Arce v. Garcia, 434 F.3d 1254, 1261 (11th Cir. 2006).

3. Fremont argues that Frazile waived the right to object to both § 1635(e)(1)’s applicability and the timeliness of her damages action because her initial brief did not directly address the grounds on which the district court based its ruling. Instead, argues Fremont, Frazile conflates the two issues and dedicates the bulk of her initial brief to the timeliness of her rescission claim. We do not consider these issues abandoned. In her brief, Frazile argues that she continues to enjoy TILA’s protections, citing cases to support the position that she is allowed three years to request rescission of the mortgage transaction, pursuant to § 1635(f). Her argument therefore necessarily takes issue with the district court’s conclusion that her mortgage transaction is exempted under § 1635(e). Additionally, she challenges the district court’s finding that she is not entitled to equitable tolling of the statute of limitations, claiming in her initial brief that in 2008 and in 2009 EMC obstructed her ability to acquire information relevant to her suit. Thus, the defendants were on notice that the district court’s TILA rulings were within the scope of Frazile’s appeal.
© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in foreclosure, foreclosure fraud, respa, reversed court decision, tila0 Comments

CASE FILE California BANKRUPTCY In Re HUBBEL and PEREZ RELIEF FROM STAY DENIED TILA QUESTION N.D.Cal.-03506637146

CASE FILE California BANKRUPTCY In Re HUBBEL and PEREZ RELIEF FROM STAY DENIED TILA QUESTION N.D.Cal.-03506637146

TILA Rescission, BK Court questions validity of “Creditor’s” claims, BAP Affirms denial of relief from stay.

source:PhilUp

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non edited version: CASE FILE California BANKRUPTCY In Re HUBBEL and PEREZ RELIEF FROM STAY DENIED TILA QUESTION2

Posted in bankruptcy, case, tila0 Comments

HUGE- A Brand Spankin New Federal Statute To Attack Foreclosure Assignment Fraud: MATT WEIDNER

HUGE- A Brand Spankin New Federal Statute To Attack Foreclosure Assignment Fraud: MATT WEIDNER

Via: Matt Weidner Blog

Buried in The Helping Families Save Their Homes Act of 2009, which the President signed into law yesterday, is an amendment to the Truth in Lending Act (TILA) that calls for a notice to the consumer when a ‘mortgage loan’ is transferred or assigned.  The provision appears to be effective immediately, and violations are subject to TILA liability.

The text of the provision follows:
SEC. 404. NOTIFICATION OF SALE OR TRANSFER OF MORTGAGE LOANS. (a) IN GENERAL.—Section 131 of the Truth in Lending Act (15 U.S.C. 1641) is amended by adding at the end the following: ‘‘(g) NOTICE OF NEW CREDITOR.— ‘‘(1) IN GENERAL.—In addition to other disclosures required by this title, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including— ‘‘(A) the identity, address, telephone number of the new creditor; ‘‘(B) the date of transfer; ‘‘(C) how to reach an agent or party having authority to act on behalf of the new creditor; ‘‘(D) the location of the place where transfer of ownership of the debt is recorded; and ‘‘(E) any other relevant information regarding the new creditor. ‘‘(2) DEFINITION.—As used in this subsection, the term ‘mortgage loan’ means any consumer credit transaction that is secured by the principal dwelling of a consumer.’’. (b) PRIVATE RIGHT OF ACTION.—Section 130(a) of the Truth in Lending Act (15 U.S.C. 1640(a)) is amended by inserting ‘‘subsection (f) or (g) of section 131,’’ after ‘‘section 125,’’.

THIS OPENS UP A HUGE NEW AVENUE OF ATTACK AGAINST FORECLOSURE AND

ASSIGNMENT FRAUD!

Posted in foreclosure fraud, Mortgage Foreclosure Fraud, mortgage gfe, note, tila1 Comment

Assignee Liability in the Secondary Mortgage Market

Assignee Liability in the Secondary Mortgage Market

“Rather, the ASF’s concern is the ad hoc body of federal and state law that currently subjects innocent secondary market assignees to liability.”

Interesting point:

Shifting the burden for predatory practices from cheated subprime borrowers to passive investors and other subprime borrowers simply shifts the burden of predatory practices among innocent parties

Irony!

The primary market actors directly responsible for harmful predatory practices already are subject to extensive, if sometimes ineffective, government regulation.
Position Paper
of the
American Securitization Forum
June 2007
snip…………………………………………
It is important to remember that, although the holder-in-due-course doctrine constitutes an important protection for innocent assignees, it does not afford an absolute protection to all assignees. In order to benefit from holder-in-due-course status, an assignee must take the loan in good faith and cannot have actual or implied knowledge of a variety of loan defects, including that the loan was originated through fraudulent means. Courts will also deny holder-in-due-course status to an assignee that has such a close connection with the originator that the originator effectively is an agent of the assignee35 or where knowledge of the originator’s wrongdoing can be imputed to the assignee on some other basis, such as joint-venture or aiding-and-abetting theories.36 In addition, assignees that engage in wrongful conduct themselves in connection with mortgage loans are subject to potentially serious liability under a variety of federal and state legislation.37

The ASF does not contest the scope of liability under these laws for secondary market assignees that are culpable. Rather, the ASF’s concern is the ad hoc body of federal and state law that currently subjects innocent secondary market assignees to liability. This body of law lacks coherence and is often internally inconsistent, in part because the perception that assignees must be held responsible for the sins of loan originators becomes more politically salient during periods of turmoil in the housing market. At such times, there is a tendency for lawmakers to turn to the secondary market as the deep pockets available to compensate for the failure of regulatory authorities to effectively oversee and punish those loan originators that engage in illegal conduct.

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Posted in concealment, conspiracy, foreclosure, foreclosure fraud, forensic loan audit, hoepa, securitization, tila0 Comments

Kline v. Mortgage Electronic Registration Systems, Inc., Dist. Court, SD Ohio, Western Div. 2010

Kline v. Mortgage Electronic Registration Systems, Inc., Dist. Court, SD Ohio, Western Div. 2010

Pointers for FDCPA, TILA, MERS, OCSPA

EUGENE KLINE, et al., Plaintiffs,
v.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants.

Case No. 3:08cv408.

United States District Court, S.D. Ohio, Western Division.

March 29, 2010.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFFS’ OBJECTIONS (DOC. #143) TO REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (DOC. #133); REPORT AND RECOMMENDATIONS ADOPTED IN PART AND REJECTED IN PART; MOTION TO DISMISS FILED BY DEFENDANT MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (DOC. #31), SUSTAINED IN PART AND OVERRULED IN PART

 

WALTER HERBERT RICE, District Judge.

In this putative class action, the Plaintiffs have set forth claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692a et seq.; the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq.; and the Ohio Consumer Sales Practices Act (“OCSPA”), Ohio Revised Code § 1345.01 et seq,; as well as for breach of contract and unjust enrichment under the common law of Ohio. See Doc. #1 at ¶ 2. In their Complaint, the Plaintiffs have named eleven Defendants, including Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”). MERS has filed a motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, requesting that this Court dismiss Plaintiff’s Complaint for failure to state a claim upon which relief can be granted. See Doc. #31. This Court referred that motion to United States Magistrate Judge Sharon Ovington for a Report and Recommendations. Judge Ovington has submitted such a judicial filing, recommending that this Court sustain in part and overrule in part MERS’ motion. See Doc. #133. The Plaintiffs have submitted Objections (Doc. #143) thereto, upon which the Court now rules. The Court begins by setting forth the standard by which it reviews Judge Ovington’s Report and Recommendations (Doc. #133), as well as a brief summary of the procedural standards which must be applied whenever a court rules on a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, seeking dismissal for failure to state a claim upon which relief can be granted.

Under 28 U.S.C. § 636(b)(1)(A), a District Court may refer to a Magistrate Judge “any pretrial matter pending before the court,” with certain listed exceptions. Motions to dismiss are among the listed exceptions. Section 636(b)(1)(B) authorizes District Courts to refer “any motion excepted from subparagraph (A)” to a Magistrate Judge for “proposed findings of fact and recommendations.” When a District Court refers a matter to a Magistrate Judge under § 636(b)(1)(B), it must conduct a de novo review of that judicial officer’s recommendations. See United States v. Raddatz, 447 U.S. 667, 673-74 (1980); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001).

In Prater v. City of Burnside, Ky., 289 F.3d 417 (6th Cir. 2002), the Sixth Circuit reiterated the fundamental principles which govern the ruling on a motion to dismiss under Rule 12(b)(6):

The district court’s dismissal of a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is also reviewed de novo. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). When deciding whether to dismiss a claim under Rule 12(b)(6), “[t]he court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true.” Id. (citation omitted).

Id. at 424. In Swierkiewicz v. Sorema N.A., 532 U.S. 506 (2002), the Supreme Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure merely requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. at 212. Therein, the Court explained further:

Such a statement must simply “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. See id., at 47-48; Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168-169 (1993). “The provisions for discovery are so flexible and the provisions for pretrial procedure and summary judgment so effective, that attempted surprise in federal practice is aborted very easily, synthetic issues detected, and the gravamen of the dispute brought frankly into the open for the inspection of the court.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1202, p. 76 (2d ed. 1990).

Id. at 512-13. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court rejected the standard established in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that a claim should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 550 U.S. at 562-63. The Supreme Court recently expounded upon Twombly in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009), writing:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” As the Court held in Twombly, 550 U.S. 544, the pleading standard Rule 8 announces does not require “detailed factual allegations,” but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” 550 U.S., at 555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id., at 557.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of `entitlement to relief.'” Id., at 557 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”—”that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

Id. at 1949-50.

In their Complaint, four Plaintiffs have set forth claims against MERS, to wit: Eugene Kline (“Kline”), Diana Hughes (“Hughes”) and George and Carol Ross (collectively the “Rosses”). In that pleading, Kline alleges that he entered into a loan transaction with WMC Mortgage (“WMC”) and that the mortgage securing that loan was held by MERS, as nominee for WMC. Doc. #1 at ¶ 64. During the course of the foreclosure proceeding on that property, Kline’s foreclosure counsel communicated to the attorney representing MERS, requesting that the latter give him a figure at which Kline could pay off that loan. MERS’ counsel indicated that Kline’s payoff figure included, inter alia, $350, for attorney’s fees, and $225, for previous service costs. Id. at ¶¶ 65-69. According to Kline, MERS’ actions in that regard violated provisions of the FDCPA, constituted deceptive and misleading practices in violation of the OCSPA, unjustly enriched MERS, and breached a contract between the parties. In addition, Kline alleges that MERS violated the TILA, 15 U.S.C. § 1666d, by demanding these sums. Id. at ¶¶ 133-136.

Hughes alleges that, in or about July, 2005, she entered into a mortgage agreement with Heartland Home Finance (“Heartland”), covering her home at 437 Donnington Drive, Dayton, Ohio. Doc. #1 at ¶ 107. That mortgage was subsequently assigned to MERS, as nominee for Heartland. Id. at ¶ 108. Subsequently, Hughes initiated proceedings under Chapter 13 of the Bankruptcy Code, during which MERS filed a proof of claim, with which it sought to recover, inter alia, $675 for post-petition attorney’s fees. Id. at ¶ 109 and ¶ 111. According to Hughes, the recovery of such fees, even pursuant to a fee-shifting provision in a mortgage, violates Ohio law. Id. at ¶ 113. Hughes alleges that MERS’ actions in that regard violated provisions of the FDCPA, constituted deceptive and misleading practices in violation of the OCSPA, unjustly enriched MERS, and breached a contract between the parties. Hughes has not set forth a claim under the TILA against MERS.

The Rosses allege that, in or about December, 2002, they took out a mortgage loan from Preferred Mortgage Consultants, with MERS acting as the mortgagee. Doc. #1 at ¶ 114. In December, 2006, the Rosses fell behind in their payments, which resulted in their mortgage being accelerated. Id. at ¶¶ 116-117. In April, 2007, the Rosses initiated proceedings under Chapter 13 of the Bankruptcy Code, during which MERS filed a proof of claim seeking to recover, inter alia, $475, for pre-petition bankruptcy fees, and $495.22, for accrued late charges. Id. at ¶¶ 119-120. The Rosses allege that MERS’ actions in that regard violated provisions of the FDCPA, constituted deceptive and misleading practices in violation of the OCSPA, unjustly enriched MERS, and breached a contract between the parties. The Rosses have not set forth a claim under the TILA against MERS.

In her Report and Recommendations (Doc. #133), Judge Ovington has recommended that this Court dismiss the claims of Kline, Hughes and the Rosses against MERS under the FDCPA, because that Defendant was not a “debt collector,” as that term is defined by the federal statute. See Doc. #133 at 9-15. That judicial officer has also recommended that the Court dismiss, with prejudice, those Plaintiffs’ state law claims for breach of contract and unjust enrichment against MERS. Id. at 21-24. As to those Plaintiffs’ claims under the OCSPA, the Magistrate Judge has recommended that the Court dismiss their class action claims with prejudice, and that it decline to continue to exercise supplemental jurisdiction over the individual claims of Hughes and the Rosses, while continuing to exercise such jurisdiction over Kline’s individual claim under the state statute. Id. at 25-26. Finally, Judge Ovington has recommended that the Court decline to dismiss Kline’s claim under the TILA against MERS. Id. at 19-21.

Kline, Hughes and the Rosses do not challenge Judge Ovington’s recommendation that this Court dismiss their claims under the FDCPA against MERS, because the latter is not a debt collector within the meaning of that statute. This Court, having conducted a de novo review of the recommendation, concurs with same. Accordingly, the Court sustains MERS’ Motion to Dismiss (Doc. #31), as it relates the claims of Kline, Hughes and the Rosses under the FDCPA.

MERS supported its Motion to Dismiss (Doc. #31), by appending seven documents to its memorandum in support thereof (Doc. #33). In particular, MERS has provided the mortgages of Kline, Hughes and the Rosses pertaining to it, the proof of claim filed on behalf of MERS in Hughes’ bankruptcy proceedings, the amended and second amended proofs of claim filed on behalf of MERS in the Rosses’ bankruptcy and a decision of Judge Thomas Rose issued in Kline v. Home Eq Servicing Corp., Case No. 3:07cv084 (S.D.Ohio). The Plaintiffs initially object to the Report and Recommendations of the Magistrate Judge, because she did not exclude those documents from consideration, since they are matters outside the pleadings. For reasons which follow, this Court cannot agree.

Rule 12(d) of the Federal Rules of Civil Procedure provides:

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

In Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007), the Supreme Court cited with approval 5B Wright & Miller, Federal Practice and Procedure § 1357, as setting forth types of such materials which can be considered when ruling on a motion to dismiss. Id. at 322. That section of the treatise provides, in pertinent part:

In determining whether to grant a Federal Rule 12(b)(6) motion, district courts primarily consider the allegations in the complaint. The court is not limited to the four corners of the complaint, however. Numerous cases, as the note below reflects, have allowed consideration of matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint whose authenticity is unquestioned; these items may be considered by the district judge without converting the motion into one for summary judgment.

5B Wright & Miller, Federal Practice and Procedure § 1357 at 375-76 (footnote omitted). The Sixth Circuit has approved of the use of each of those types of materials, when ruling on a motion to dismiss, without converting same to a motion for summary judgment. See e.g., Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (District Court may consider documents referred to in plaintiff’s complaint and central to his claim, public records, matters of which a court may take judicial notice and decisions of governmental agencies). See also Wyser-Pratte Management Corp. Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir. 2005); Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (quoting Wright & Miller, supra, with approval). Of course, where the submitted materials “capture[] only part of the incident and would provide a distorted view of the events at issue, . . . we do not require a court to consider that evidence on a 12(b)(6) motion.” Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir. 2008) (internal quotation marks omitted).

Herein, Kline, Hughes and the Rosses have referred in their Complaint to the mortgages and the proofs of claim supplied by MERS, documents central to their claims against it. As to Judge Rose’s decision, as well as the proofs of claim, courts are authorized to take judicial notice of other court proceedings, without converting a motion under rule 12(b)(6) into one for summary judgment. Buck v. Thomas Cooley Law School, ___ F.3d ___, 2010 WL 935364 (6th Cir. 2010) at *3 (noting that, “[a]lthough typically courts are limited to the pleadings when faced with a motion under Rule 12(b)(6), a court may take judicial notice of other court proceedings without converting the motion into one for summary judgment” and citing Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008)). Accordingly, the Court overrules the Plaintiffs’ Objections (Doc. #143), as they relate to the question of whether the Magistrate Judge erred by failing to exclude the documents MERS attached to its memorandum.

Hughes and the Rosses argue that Judge Ovington erred in recommending that this Court decline to continue to exercise supplemental jurisdiction, because not all claims over which this Court can exercise original jurisdiction have been dismissed. The supplemental jurisdiction statute provides, in relevant part:

(a) Except as provided in subsections (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.

* * * (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if—* * *

(3) the district court has dismissed all claims over which it has original jurisdiction . . . .

28 U.S.C. § 1367. Whether a court may exercise supplemental jurisdiction over a state law claim, in accordance with § 1367(a), is to be determined under the standards established by the Supreme Court in United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966), wherein the Court wrote that to exercise pendent (nka supplemental) jurisdiction, “[t]he state and federal claims must derive from a common nucleus of operative fact.” Id. at 725.[1] When a court dismisses a plaintiff’s only claim over which it has original jurisdiction (i.e., a federal claim), for failure to state a claim upon which relief can be granted, it should decline to continue to exercise supplemental jurisdiction over the plaintiff’s state law claims. See e.g., Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1255-56 (6th Cir. 1996) (noting that there is a strong presumption that District Court declines to continue to exercise supplemental jurisdiction over state law claims after it has dismissed federal claims pursuant to a 12(b)(6) motion).

Herein, this Court can exercise original jurisdiction over Plaintiffs’ claims under the FDCPA and the TILA. Accordingly, it must exercise supplemental jurisdiction over all other claims set forth by Plaintiffs. Whether it will continue to do so, from this point forward, is the issue. The only federal claims set forth by Hughes are claims under the FDCPA against MERS and the law firm of Lerner, Sampson and Rothfuss (“LS&R”). In this Decision, the Court has dismissed Hughes’ claim under the FDCPA against MERS, and it previously dismissed her claim under that statute against LS&R. See Doc. #116. Accordingly, it is inappropriate for the Court to continue to exercise supplemental jurisdiction over any of Hughes’ state law claims, i.e., her claim under the OCSPA, regardless of whether such claim is for class action relief, and her claims for breach of contract and for unjust enrichment. Those state law claims are ordered dismissed without prejudice to refiling in a state court of competent jurisdiction.[2]

Similarly, the Rosses only federal claims are under the FDCPA against MERS and LS&R. Although this Court has determined herein that the Rosses’ claim under the FDCPA against MERS must be dismissed, it has previously concluded that their claim under that statute survived LS&R’s Motion to Dismiss (Doc. #17). See Doc. #116. Since that claim arises out of the same nucleus of fact as those Plaintiffs’ state law claims against MERS, it is permissible to continue to exercise supplemental jurisdiction over those state law claims.

Accordingly, the Court sustains the Plaintiffs’ Objections (Doc. #143), to the extent that they are based on the assertion that the Magistrate Judge erred in recommending that the Court decline to continue to exercise supplemental jurisdiction over the Rosses’ individual claims under the OCSPA. The Court overrules those Objections, to the extent that they are based on the assertion that the Magistrate Judge erred in recommending that the Court decline to continue to exercise supplemental jurisdiction over Hughes’ individual claim under the OCSPA.[3]

In addition, Kline, Hughes and the Rosses object to the recommendation of Judge Ovington that the Court dismiss their claims for breach of contract, unjust enrichment and for a class action under the OCSPA. As an initial matter, this Court has declined to continue to exercise supplemental jurisdiction over Hughes’ state law claims; therefore, it need not address these objections as they relate to that Plaintiff. Rather, the Court orders that all of Hughes’ state law claims be dismissed, without prejudice to refiling in a state court of competent jurisdiction.

The Court now turns to Kline’s and the Rosses’ claims for breach of contract, for unjust enrichment and for a class action under the OCSPA. Judge Ovington recommended that the Court dismiss, with prejudice, the breach of contract claims of Kline and the Rosses, because those Plaintiffs had failed to allege any of elements of a breach of contract claim against MERS. See Doc. #133 at 21-23. This Court agrees with Judge Ovington that Kline and the Rosses have failed to state claims for breach of contract against MERS in their Complaint. However, since those Plaintiffs have identified potentially plausible claims for breach of contract in their Objections (see Doc. #143 at 6-9), this Court will order that those claims be dismissed, without prejudice to being re-plead in an amended complaint, which sets forth the theories of Kline and the Rosses as to how charging the fees, of which those Plaintiffs complain, breached their contracts with MERS, i.e., the mortgages to which they were parties with MERS.

Similarly, Judge Ovington recommended that this Court dismiss the claims of Kline and the Rosses against MERS, because they failed to allege that they had conferred a benefit upon MERS. See Doc. #133 at 23-24. Those Plaintiffs have objected to that particular recommendation. See Doc. #143 at 10-12. Once again, although this Court agrees with Judge Ovington that Kline and the Rosses have failed to identify the benefit which they conferred on MERS,[4] it will, however, afford those Plaintiffs the opportunity of amending their Complaint to allege how they conferred such a benefit.

Judge Ovington recommended that this Court dismiss, with prejudice, the class action aspect of the claims of Kline and the Rosses under the OCSPA. That recommendation is based upon § 1345.09(B) of the Ohio Revised Code. Under that statutory provision, a consumer may not maintain a class action for a violation of the OCSPA, unless “the violation was an act or practice declared to be deceptive or unconscionable by rule adopted under division (B)(2) of section 1345.05 of the Revised Code before the consumer transaction on which the action is based, or an act or practice determined by a court of this state to violate section 1345.02, 1345.03, or 1345.031 of the Revised Code and committed after the decision containing the determination has been made available for public inspection under division (A)(3) of section 1345.05 of the Revised Code.” (Emphasis added). Herein, since Kline and the Rosses have not alleged that any of the asserted violations of the Ohio statute by MERS also violated such a rule or court decision, Judge Ovington recommended that the Court dismiss that aspect of Kline’s and the Rosses’ claims under the OCSPA, with prejudice. Although this Court agrees with Judge Ovington that the Plaintiffs’ Complaint is devoid of such allegations, it will afford them the opportunity of amending to cure that pleading deficiency.[5]

Based upon the foregoing, the Court sustains in part and overrules in part the Plaintiffs’ Objections (Doc. #143) to Judge Ovington’s Report and Recommendations (Doc. #133). The Court overrules those Objections as they relate to the utilization of the documents supplied by MERS and the recommendation that the Court dismiss certain of the state law claims of Kline, Hughes and the Rosses, while rejecting the recommendation that said dismissal be with prejudice. The Court also sustains those Objections (Doc. #143), as they relate to the recommendation that the Court decline to continue to exercise supplemental jurisdiction over the Rosses’ individual claims under the OCSPA. Accordingly, the Court adopts in part and rejects in part the Magistrate Judge’s Report and Recommendations (Doc. #133). In addition, the Court sustains MERS’ Motion to Dismiss (Doc. #31), as it relates to the claims of Kline, Hughes and the Rosses under the FDCPA and overrules that motion as it relates to Kline’s claim under the TILA. Kline and the Rosses are given leave to file an amended complaint, properly pleading their state law claims of breach of contract, unjust enrichment and for class action status under the OCSPA, subject to the strictures of Fed. R. Civ. P. 11, within 14 days from date. Hughes’ state law claims are ordered dismissed, without prejudice to refiling in a state court of competent jurisdiction, as the Court declines to continue to exercise supplemental jurisdiction over same.

[1] See e.g., De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 308 (3d Cir.2003) (noting that “a district court may exercise supplemental jurisdiction where state-law claims share a `common nucleus of operative fact’ with the claims that supported the district court’s original jurisdiction”) (quoting Gibbs, 383 U.S. at 725).

[2] To the extent that Hughes’ position is that as long as any federal claim remains pending in this litigation, it is permissible to exercise supplemental jurisdiction over all state law claims set forth by every Plaintiff herein, this Court cannot agree. This Court can exercise supplemental jurisdiction over only those state law claims that arise out of the same nucleus of fact as a federal law claim. Therefore, the pendency of Kline’s claim under the TILA does not authorize this Court to exercise supplemental jurisdiction over Hughes’ state law claims, given that those claims do not arise out of the same nucleus of operative facts.

Moreover, this Court rejects Hughes’ assertion that it can exercise subject matter jurisdiction over Hughes’ state law claims in accordance with the Class Action Fairness Act, 28 U.S.C. § 1332(d). This Court’s original jurisdiction over claims under that statute is predicated upon the amount in controversy for a class action exceeding $5,000,000. See 28 U.S.C. § 1332(d)(2). Herein, the Plaintiffs have failed to allege that the amount in controversy in a class action based upon Hughes’ state law claims would exceed that sum.

[3] Given that Judge Ovington did not recommend that this Court decline to continue to exercise supplemental jurisdiction over any of Kline’s state law claims, Kline did not object to the aspect of Judge Ovington’s Report and Recommendations, addressing the continuing exercise of supplemental jurisdiction.

[4] The Court rejects the Plaintiffs’ assertion that one can infer that they conferred a benefit on MERS, merely because they allege that it demanded the payment of certain fees during foreclosure or bankruptcy proceedings.

[5] The portion of § 1345.09(B), which this Court has emphasized above refers to “a court of this state.” Kline and the Rosses have cited decisions by federal courts sitting in Ohio to support their assertion that their class claims under the OCSPA should not be dismissed. Whether a federal court sitting in Ohio is “a court of this state” is an issue which this Court does not address herein.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in case, fdcpa, foreclosure fraud, MERS, mortgage electronic registration system, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., tila0 Comments

Homeowners strike back at banks: The Daily Tribune

Homeowners strike back at banks: The Daily Tribune

“None of the named defendants have the right or authority to foreclose under (state law) or by contractual right,” he says in the lawsuit.

Published: Tuesday, May 11, 2010

By Jameson Cook, Daily Tribune Staff Writer

Lawsuits filed in maneuver to try to stop foreclosure, recover losses from alleged overpayments, improper approval.

About 90 homeowners in Oakland and Macomb counties have accused more than two dozen banks of deceptive lending and other wrongdoing by approving loans far exceeding the plaintiffs’ ability to pay and charging excessive fees, among other allegations.

The accusations are levied in two lawsuits filed in each county’s circuit court within the past two weeks through the Troy-based Michigan Loan Compliance Advisory Group Inc., created to help homeowners in trouble with their mortgages. A third lawsuit with about 10 plaintiffs is expected to be filed in Wayne County Circuit Court this week.

The lawsuits represent an emerging tactic nationwide for struggling homeowners in their attempt to fight off potential foreclosure and gain relief on stifling mortgages from some of the country’s largest banks.

Continue reading … The Daily Tribune

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in case, concealment, conspiracy, corruption, foreclosure fraud, forensic loan audit, forensic mortgage investigation audit, mortgage gfe, mortgage modification, note, respa, tila0 Comments

Peterson-price v. Us Bank National Association TILA ASSIGNMENT SECURITIZATION

Peterson-price v. Us Bank National Association TILA ASSIGNMENT SECURITIZATION

Good points to learn.

[ipaper docId=30956413 access_key=key-24x2kud1l0tlsbm92i4r height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in foreclosure fraud, robo signer, securitization, tila0 Comments

In A Putative Class Action, The Third Circuit Holds That A Plaintiff Must Show Detrimental Reliance On Improper Loan Disclosure Statements To Obtain Actual Damages Under The Truth In Lending Act (TILA)

In A Putative Class Action, The Third Circuit Holds That A Plaintiff Must Show Detrimental Reliance On Improper Loan Disclosure Statements To Obtain Actual Damages Under The Truth In Lending Act (TILA)

Posted on February 1, 2010 by Sheppard Mullin
 
By Shannon Petersen

On December 31, 2009, the Third Circuit held that a borrower must prove detrimental reliance to obtain actual damages for a violation of the federal Truth in Lending Act (“TILA”). See Vallies v. Sky Bank, —F.3d—, 2009 WL 5154473 (3rd Cir. 2009).
 

Under TILA, the federal government requires that lenders make certain disclosures to borrowers about the terms of their loans before lending them money. TILA claims are at the epicenter of the mortgage litigation crises. Over the past two years, TILA claims, including class action claims, have flooded the state and federal courts. Most of these claims involve allegations that some technical TILA disclosure violation has occurred.

Though not a mortgage case, the allegations of the borrower in Vallies v. Sky Bank are typical. The plaintiff alleged that the finance charge statement made by the bank for an auto loan was misleading in that it did not include $395 representing the amount of the debt cancellation insurance, which the plaintiff alleged should have been included in the finance charge statement under TILA. The district court granted summary judgment in favor of the bank because the borrower had failed to show that (1) he had read the TILA disclosure statement pertaining to finance charges, (2) he had understood the finance charges being disclosed, (3) had the disclosure been accurate by including an additional $395, he would have sought better terms or foregone the loan, and (4) if he had sought better terms, he would have obtained them.

The Third Circuit declined to state the specific facts or circumstances that constitute detrimental reliance under TILA, but affirmed the decision of the district court that detrimental reliance must be shown and had not been shown here. In so holding, the Third Circuit relied on the language of TILA itself, which provides for both actual damages and statutory damages. According to the Third Circuit, to obtain actual damages, a plaintiff must show causation by showing that he or she relied on a misleading or improper loan disclosure statement to his or her detriment. In contrast, to obtain statutory damages, a plaintiff must only show that a violation of TILA has occurred. (For class action suits, statutory damages under TILA are capped at the lesser of $500,000 or 1% of the defendant’s net worth.).

In reaching its decision, the Third Circuit considered but rejected as irrelevant the concerns of some legal commentators, who have noted that under a detrimental reliance standard actual damages for TILA loan disclosure violations may be difficult to prove. The court also disregarded the fact that “detrimental reliance may create obstacles for class certification because of the individualized fact-specific nature of the reliance inquiry.” The court distinguished other case law, holding that detrimental reliance under TILA is not necessary, on the grounds that those cases involved claims for statutory damages, not actual damages, under TILA.

Finally, the Third Circuit noted that it joined the holding of every other circuit court that has addressed the issue, including the First, Fifth, Sixth, Eighth, and Ninth Circuits. Citing United States v. Petroff-5 Kline, 557 F.3d 285, 297 (6th Cir. 2009) (“[A]ctual damages require a showing of detrimental reliance.”); McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1192 (9th Cir. 2008) (finding no valid basis to overturn the rule of In re Smith requiring a showing of detrimental reliance to establish actual damages); Gold Country Lenders v. Smith (In re Smith), 289 F.3d 1155, 1157 (9th Cir. 2002) (“Wejoin with other circuits and hold that in order to receive actual damages for a TILA violation . . . a borrower must establish detrimental reliance.”); Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (en banc) (“We hold that detrimental reliance is an element of a TILA claim for actual damages . . . .”); Perrone v. Gen. Motors Acceptance Corp., 232 F.3d 433, 434–40 (5th Cir. 2000) (holding that detrimental reliance is an element of a claim for actual damages); Peters v. Jim Lupient Oldsmobile Co., 220 F.3d 915, 917 (8th Cir. 2000)(requiring a showing of proximate causation and adopting a four-prong reliance test for establishing actual damages); Bizier v. Globe Fin. Servs., Inc., 654 F.2d 1, 4 (1st Cir. 1981) (noting in dicta the need to show causation for an award of actual damages “in addition to a threshold showing of a violation of a TILA requirement”).

Under this law, it is not enough, as plaintiffs in TILA cases often do, to allege that a TILA loan disclosure violation has occurred. Instead, a plaintiff must also allege and prove that he or she relied on the misleading or improper statement and as a result of this reliance suffered actual damage. This recent decision of the Third Circuit also emphasizes the difficulty of certifying a class action for actual damages under TILA. Even where the named plaintiff has detrimentally relied on an improper loan disclosure statement, such reliance can rarely be universally inferred for other, unnamed class members. Instead, to determining detrimental reliance usually requires an individual inquiry about whether the class member read the disclosure statement, understood it, and relied on it to his or her detriment. For this reason, such cases are very difficult to certify for class treatment. See, e.g., Stout v. J.D. Byrider, 228 F.3d 709, 718 (6th Cir. 2000) (affirming the denial of class certification based on the need for individualized assessment of whether “each putative class member relied upon false representations or failures to disclose” under TILA).

Posted in concealment, foreclosure fraud, tila1 Comment

TILA VIOLATION "FRAUD": DAVIES V. NDEX WEST, UNIVERSAL AMERICAN MORTGAGE, DEUTSCHE BANK NATIONAL TRUST, MERS, 2924,2923.5, B

TILA VIOLATION "FRAUD": DAVIES V. NDEX WEST, UNIVERSAL AMERICAN MORTGAGE, DEUTSCHE BANK NATIONAL TRUST, MERS, 2924,2923.5, B

Mr. Davies asked me to post this info for all you to see the FRAUD!

Especially Indymac FSB F/K/A Onewest

Why were any of these NOT signed over by Universal American Mortgage Corp??

The ONLY “lender” he knew at the time of closing was Universal American Mortgage Corp!

DISCLOSURE! DISCLOSURE! DISCLOSURE!

§ 226.18  Content of disclosures.

For each transaction, the creditor shall disclose the following information as applicable:
(a)  Creditor. The identity of the creditor making the disclosures.

SEE CASEY LIMP as Vice President in each???


Now this is at the bottom of each page…but I bet these are “not” the originals.

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, foreclosure fraud, forensic mortgage investigation audit, Mortgage Foreclosure Fraud, scam, securitization, tila9 Comments

Lenders Unload Mortgages to Collection Agencies

Lenders Unload Mortgages to Collection Agencies

What we were discussing this morning…

dcbreidenbach, on April 26, 2010 at 9:51 am Said:in a prior posting it was stated that defense attys press people to be concerned about deficiency judgements unnecessarily. This advice may be practical for some homeowners but is extremely dangerous for borrowers generally. The current practice of most collectors is to press foreclosure on the mortgage–ignoring the note. This is an inverted approach that enables the collection agency to acquire the property and proceeds of its disposition without ever demonstrating who holds the note, or possession of the note. The collector obtains the home today, settling the mortgage, but is fully capable of selling the note deficiency balance collection rights to an even worse collection agency. The collectors are legally able to lay in the weeds for as much as 5-10 years depending on state laws and the facts of the case. When the homeowner is “back on his feet” with a good job, restored credit and other assets accumulated, the collector shows up with the old note and deficiency judgment and makes the claim plus interest accrued in the meantime. Just when the homeowner thought it was over-he/she is drawn back into the horror. another opportunity for them exists; they know you owe a deficiency amount-they record it and wait for you to die ——-then they come after your estate for proceeds of your life insurance and pension payouts that you thought were to help your family! Be wary of advice that says “dont worry-be happy” ; these people feed on deception, its a way of life to them. Beware disinformation—find attornies if you have deficiencies–force the collectors to warrant that the deficiency is waived. And get a warranty from an employee of one of the big name banks at the minimum that you will not be pursued. Trust them not.
Given any opportunity to screw you they will!

Lenders Unload Mortgages to Collection Agencies

19 April 2010 @ 05:11 pm EDT

Lenders are selling second mortgages and home-equity lines in default to collection agencies that have the right to collect this money potentially for decades.

“It’s a big business, and investors are coming out of the woodwork,” says Sylvia Alayon, a vice president for Consumer Mortgage Audit Center, which analyzes mortgage documents for lenders, advocacy groups, and attorneys.

Real estate professionals will be doing their short-sale clients a big favor if they urge them to get professional advice before they sign agreements, Alayon says.

A new government short-sale program, which takes effect Monday, aims to prevent banks from reselling this debt. Sellers covered under the program will receive notice that secondary lien holders have received part of the proceeds of the sale “in exchange for release and full satisfaction of their liens.”

 Reprinted from REALTOR® Magazine Online with permission of the NATIONAL ASSOCIATION OF REALTORS®. Copyright 2009. All rights reserved.

Related Story:

FORENSIC AUDIT (FMI) & Securitization

FORENSIC MORTGAGE AUDITS AS TOOLS TO SAVE FORECLOSURE HOMES

Why Your Lawyer May Threaten You With a Deficiency Judgment After Foreclosure

Posted in concealment, conspiracy, foreclosure fraud, forensic mortgage investigation audit, nina, note, respa, short sale, siva, tila1 Comment

TILA Statute of Limitations

TILA Statute of Limitations

Source: Livinglies

Editor’s Note: Judges are quick to jump on the TILA Statute of Limitations by imposing the one year rule for rescission and damages. But there is more to it than that.

First the statute does NOT cut off at one year except for items that are apparent on the face of the closing documentation; so for MOST claims arising under securitization where almost every real detail of the transaction was hidden and intentionally withheld, the one year rule does not apply.

Second, the statute of limitations does not BEGIN to run until the date that the violation is revealed. In most cases this will be when the homeowner knows or should have known that the loan was securitized. Since the pretender lenders are so strong on the point that securitization does not affect enforcement, the best point in time for the statute to run is when a forensic analyst or expert tells the homeowner that TILA violations exist.

And THEN, in those cases where the information was hidden, the statute of limitations is three years from the date the information was revealed.

So when you go after undisclosed fees, profits and other compensation of any kind, you are not cut off by one year because — by definition they were not disclosed. The only way the other side can get out of that is by admitting the existence of the fee, and then showing that it WAS disclosed — presumably through yet another fabricated document, signed by a non-existent person with non existent authroity with non- existent witnesses and notarized by someone three thousand miles away (whose notary stamp and forged signature was applied to hundreds of pages of blank documents for later use). [Brad Keiser was the one who discovered this tactic by doing what most forensic analysts don’t do — actually reading every piece of paper sent by the pretender lender and every piece of paper provided by the homeowner. Case law shows that where the notary was improperly applied — and there are many ways for it to be improperly applied, the notary is void. If the statute requires recording the document in the public records, then the document so notarized shall be considered as NOT being in the public records and is ordered expunged from those records].

This comment from Rob elaborates:

Regarding the TILA Statute of Limitations:

STATUTE OF LIMITATIONS
When a violation of TILA occurs, the one-year limitations period applicable to actions for statutory and actual damages begins to run. U.S.C. § 1641(e).
A TILA violation may occur at the consummation of the transaction between a creditor and its consumer if the transaction is made without the required disclosures.
A creditor may also violate TILA by engaging in fraudulent, misleading, and deceptive practices that conceal the TILA violation occurring at the time of closing. Often consumers do not discover any violation until after they have paid excessive charges imposed by their creditors. Consumers who later learn of the creditor’s TILA violations can allege an equitable tolling of the statute of limitations. When the consumer has an extended right to rescind or
pursue other statutory remedies because a violation occurs, the statute of limitations for all the damages the consumers seek extends to three years from the date the violation is revealed.
McIntosh v. Irwin Union Bank & Trust Co., 215 F.R.D. 26, 30 (D. Mass. 2003).

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in forensic mortgage investigation audit, tila0 Comments

To ROB a COUNTRY, OWN a BANK: William Black

To ROB a COUNTRY, OWN a BANK: William Black

William Black, author of “Best way to rob a bank is to own one” talks about deliberate fraud on Wall St. courtesy of TheRealNews

[youtube=http://www.youtube.com/watch?v=sA_MkJB84VA]

[youtube=http://www.youtube.com/watch?v=ISsR7ZiWlsk]

Stop trying to get through the front door…use the back door…Get a Forensic Audit!

Not all Forensic Auditors are alike! FMI may locate exactly where the loan sits today.

 

This will make your lender WANT to communicate with you. Discover what they don’t want you to know. Go back in time and start from the minute you might have seen advertisements that got you hooked ” No Money Down” “100% Financing” “1% interest” “No income, No assetts” NO PROBLEM! Were you given proper disclosures on time, proper documents, was your loan broker providing you fiduciary guidance or did they hide undisclosed fees from you? Did they conceal illegal kickbacks? Did your broker tell you “Don’t worry before your new terms come due we will refinance you”? Did they inflate your appraisal? Did the developer coerce you to *USE* a certain “lender” and *USE* a certain title company?

If so you need a forensic audit. But keep in mind FMI:

DO NOT STOP FORECLOSURE

DO NOT NEGOTIATE ON YOUR BEHALF WITH YOUR BANK OR LENDER

DO NOT MODIFY YOUR LOAN

DO NOT TAKE CASES that is upto your attorney!

FMI does however, provide your Attorney with AMMO to bring your Lender into the negotiation table.

Posted in bank of america, bernanke, chase, citi, concealment, conspiracy, corruption, fdic, FED FRAUD, federal reserve board, FOIA, foreclosure mills, forensic mortgage investigation audit, fraud digest, freedom of information act, G. Edward Griffin, geithner, indymac, jpmorgan chase, lehman brothers, Lynn Szymoniak ESQ, MERS, Mortgage Foreclosure Fraud, nina, note, onewest, scam, siva, tila, title company, wachovia, washington mutual, wells fargo0 Comments

HARVARD LAW AND ECONOMIC ISSUES IN SUBPRIME LITIGATION 2008

HARVARD LAW AND ECONOMIC ISSUES IN SUBPRIME LITIGATION 2008

This in combination with A.K. Barnett-Hart’s Thesis make’s one hell of a Discovery.

 
LEGAL AND ECONOMIC ISSUES IN
SUBPRIME LITIGATION
Jennifer E. Bethel*
Allen Ferrell**
Gang Hu***
 

Discussion Paper No. 612

03/2008

Harvard Law School Cambridge, MA 02138

 

 ABSTRACT

This paper explores the economic and legal causes and consequences of recent difficulties in the subprime mortgage market. We provide basic descriptive statistics and institutional details on the mortgage origination process, mortgage-backed securities (MBS), and collateralized debt obligations (CDOs). We examine a number of aspects of these markets, including the identity of MBS and CDO sponsors, CDO trustees, CDO liquidations, MBS insured and registered amounts, the evolution of MBS tranche structure over time, mortgage originations, underwriting quality of mortgage originations, and write-downs of investment banks. In light of this discussion, the paper then addresses questions as to how these difficulties might have not been foreseen, and some of the main legal issues that will play an important role in the extensive subprime litigation (summarized in the paper) that is underway, including the Rule 10b-5 class actions that have already been filed against the investment banks, pending ERISA litigation, the causes-of-action available to MBS and CDO purchasers, and litigation against the rating agencies. In the course of this discussion, the paper highlights three distinctions that will likely prove central in the resolution of this litigation: The distinction between reasonable ex ante expectations and the occurrence of ex post losses; the distinction between the transparency of the quality of the underlying assets being securitized and the transparency as to which market participants are exposed to subprime losses; and, finally, the distinction between what investors and market participants knew versus what individual entities in the structured finance process knew, particularly as to macroeconomic issues such as the state of the national housing market. ex ante expectations and the occurrence of ex post losses; the distinction between the transparency of the quality of the underlying assets being securitized and the transparency as to which market participants are exposed to subprime losses; and, finally, the distinction between what investors and market participants knew versus what individual entities in the structured finance process knew, particularly as to macroeconomic issues such as the state of the national housing market. 

 continue reading the paper harvard-paper-diagrams

 
 

 

Posted in bank of america, bear stearns, bernanke, chase, citi, concealment, conspiracy, corruption, credit score, Dick Fuld, FED FRAUD, G. Edward Griffin, geithner, indymac, jpmorgan chase, lehman brothers, mozillo, naked short selling, nina, note, scam, siva, tila, wachovia, washington mutual, wells fargo1 Comment

Michael Lewis: How a Few Wall Street Outsiders Scored Shorting Real Estate Before the Collapse

Michael Lewis: How a Few Wall Street Outsiders Scored Shorting Real Estate Before the Collapse

This is worth the time to read and watch

By Damien Hoffman The Wall St. Cheat

Posted on March 14 2010

Michael Lewis’s new book, The Big Short: Inside the Doomsday Machine,is already #1 at Amazon. Tonight he had some very cool interviews on 60 Minutes discussing how a few Wall Street outsiders made billions shorting real estate, his thoughts on Wall Street bonuses, and more. These videos are highly recommended now that the NCAA brackets are out and the tournaments are over until Thursday:

Go HERE for the powerful videos

Posted in bank of america, bear stearns, bernanke, chase, citi, concealment, conspiracy, corruption, FED FRAUD, foreclosure fraud, forensic mortgage investigation audit, G. Edward Griffin, geithner, george soros, hank paulson, indymac, jpmorgan chase, lehman brothers, michael dell, mozillo, naked short selling, nina, note, onewest, RON PAUL, scam, siva, steven mnuchin, tila, wachovia, washington mutual, wells fargo0 Comments

The HUGE CRASH Predicted: by: Whitney Tilson

The HUGE CRASH Predicted: by: Whitney Tilson

Listen carefully it’s not only the sub-prime …it’s now those who called everyone in foreclosure a dead beat. Those “who” were living in glass houses shouldn’t throw stones because one might come bouncing back to shatter. We are now in this together so I welcome you with open arms and into a hug because I know you will need one.

[youtube=http://www.youtube.com/watch?v=shYJ_KkbzWg]

[youtube=http://www.youtube.com/watch?v=GZWC0fBqlYE]

Posted in concealment, conspiracy, corruption, FED FRAUD, foreclosure fraud, forensic mortgage investigation audit, MERS, naked short selling, nina, note, scam, siva, tila0 Comments

MAJOR WIN FOR HOMEOWNERS IN NJ SUPREME COURT; SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2634-08T2

MAJOR WIN FOR HOMEOWNERS IN NJ SUPREME COURT; SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2634-08T2

We hold that a series of standardized agreements to cure default between a non-debtor mortgagor and the mortgage servicer are covered by the Consumer Fraud Act, even when executed post-foreclosure.

From: nikoalexopoulos

As a lot of you have come to realize LOAN MODIFICATIONS have not solved anyone’s problems but to put more money into the bank’s pockets and have the homeowner eventually wind up back where they were before the loan mod, but this time with the bank arguing that although they tried to help the homeowner the homeowner fell behind again, therefore they need to finish the foreclosure. The bank also argues that if they were any discrepancies or infractions on the original loan, well by the homeowner agreeing to a LOAN MODIFICATION the original loan is null and void and the terms on the loan modifications are in effect. They also argue that the homeowner basically signed away their rights to the original loan and are bound by the loan mod terms. However the bank still maintains theirs and will seek to foreclose on the homeowner. Well, the judges are beginning to see what we have been saying all along. BE AWARE if fraud was committed in the original loan ti does not make it go away because the bank gave the homeowner a loan modification and it puts the homeowner in a position to seek legal and financial compensation from the bank. GOD BLESS
Here is the detail info:
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2634-08T2

This is why getting a Forensic Loan Audit is much needed. This is not something an amateur should attempt leave this to the professionals who have the keen eye for understanding complexities to address all applicable regulatory compliance requirements as well as any Federal and State violations.

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Posted in concealment, conspiracy, corruption, foreclosure fraud, forensic mortgage investigation audit, Mortgage Foreclosure Fraud, naked short selling, note, tilaComments Off on MAJOR WIN FOR HOMEOWNERS IN NJ SUPREME COURT; SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2634-08T2


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

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