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BOURFF vs. RUBIN LUBLIN, LLC | GA 11th Cir. Appeals Court “The identity of the “creditor” in these notices is a serious matter, FDCPA”

BOURFF vs. RUBIN LUBLIN, LLC | GA 11th Cir. Appeals Court “The identity of the “creditor” in these notices is a serious matter, FDCPA”


IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________
No. 10-14618
________________________
D.C. Docket No. 1:09-cv-02437-JEC

MICHAEL BOURFF,
Plaintiff – Appellant,

versus

RUBIN LUBLIN, LLC,
Defendant – Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 15, 2012)

Before EDMONDSON and PRYOR, Circuit Judges, and BOWDRE,* District
Judge.
*

PER CURIAM:
This appeal involves a Fair Dept Collection Practices Act claim in which a
“false representation” has been alleged. Michael Bourff appeals the district
court’s dismissal of his civil action under 15 U.S.C. §1692, the Fair Debt
Collection Practices Act (“FDCPA”), for failure to state a claim. The district court
concluded that Bourff’s claim was covered by the FDCPA but that Bourff did not
allege acts that violated the FDCPA. We vacate the dismissal and remand the case
for further proceedings.

Background

This case involves a $195,000 loan by America’s Wholesale Lender
(“AWL”) to Michael Bourff. The loan was evidenced by a note, was used to
purchase property in Fulton County, Georgia, and was secured by a deed to the
property purchased.1

The basics of this case are not in dispute. In April 2009 Bourff failed to
make a payment on the loan and caused default under the terms of the note. AWL
later assigned the loan and the security deed to BAC Home Loan Servicing, LP
f/k/a Countrywide Home Loans Servicing, LP (“BAC”) for the purpose of
collecting on the note. BAC in turn hired defendant law firm, Rubin Lublin, LLC
(“Rubin Lublin”), to assist in collection efforts. In late May 2009 Rubin Lublin
sent a notice to Bourff stating that they had been retained to help collect on the
loan. The notice clearly stated that it was being sent as “NOTICE PURSUANT
TO FAIR DEBT COLLECTION PRACTICES ACT 15 U.S.C. § 1692[,]” and that
it was “AN ATTEMPT TO COLLECT A DEBT.” The notice also identified BAC
as “the creditor on the above-referenced loan.” (Compl. Ex. A.)

Shortly after receiving the notice, Bourff filed this civil action against Rubin
Lublin pursuant to the FDCPA. Bourff claimed that the notice sent by Rubin
Lublin violated §1692e of the FDCPA by falsely representing that BAC was the
“creditor” on the loan, despite entities in BAC’s position being specifically
excluded from the definition of “creditor” by the language of the FDCPA. Rubin
Lublin filed a motion to dismiss under Rule 12(b)(6), and the district court
dismissed the action for failure to state a claim under the FDCPA. The district
court concluded that BAC was a “creditor” according to the ordinary meaning of
the term and that, even if BAC was no creditor, the error in listing it as such was a
harmless mistake in the use of the term because BAC had the power to foreclose
on the property or otherwise to act as the creditor on the loan. (Order 11.)

Standard of Review

We review the grant of a motion to dismiss de novo; and in so doing, we
accept the allegations in the complaint as true while construing them in the light
most favorable to the Plaintiff. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir.
2011). The interpretation of a statute is likewise reviewed de novo as a purely
legal matter. Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009).
A “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974
(2007)). Stating a plausible claim for relief requires pleading “factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged”: which means “more than a sheer possibility that a
defendant has acted unlawfully.” Id.

DISCUSSION

The FDCPA limits what is acceptable in attempting debt collection. The
FDCPA applies to the notice here in question because the notice was an attempt at
debt collection. The notice stated that Rubin Lublin had been retained to “collect
the loan,” stated in bold capital letters that it was “an attempt to collect a debt,”
and advised Bourff to contact Rubin Lublin to “find out the total current amount
needed to either bring your loan current or to pay off your loan in full.” (Compl.
Ex. A.)

The FDCPA, among other things, mandates that, as part of noticing a debt, a
“debt collector” must “send the consumer a written notice containing” — along
with other information — “the name of the creditor to whom the debt is owed[.]”
15 U.S.C. §1692g(a)(2). In addition, the Act prohibits a “debt collector” from
using “any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” 15 U.S.C. §1692e. The use of “or” in §1692e
means that, to violate the FDCPA, a representation by a “debt collector” must
merely be false, or deceptive, or misleading. A false representation in connection
with the collection of a debt is sufficient to violate the FDCPA facially, even
where no misleading or deception is claimed.

Plaintiff claims that Rubin Lublin violated the prohibition on “false,
deceptive, or misleading representation[s]” by falsely stating in its collection
notice that BAC was the “creditor” on Bourff’s loan. The identity of the
“creditor” in these notices is a serious matter. For the FDCPA, “creditor” is
defined this way:

“The term ‘creditor’ means any person who offers or extends credit
creating a debt or to whom a debt is owed, but such term does not include
any person to the extent that he receives an assignment or transfer of a debt
in default solely for the purpose of facilitating collection of such debt for
another.” 15 U.S.C. §1692a(4).

Plaintiff’s complaint alleges that Bourff defaulted on the loan in April 2009
by failing to tender the required monthly payment. The complaint further alleges
that BAC “received an assignment of the security deed and debt on June 19, 2009 .
. ., while the Plaintiff’s loan was in default, for the purpose of facilitating
collection of such debt for another, presently unknown, entity.” (Compl. ¶13)
Accepting Plaintiff’s allegations as true and construing them in the light most
favorable to the Plaintiff, the statement on the May 2009 notice that BAC was
Plaintiff’s “creditor” was a false representation and was made by a “debt collector”
as defined in §1692a of the FDCPA.

The FDCPA provides that “any debt collector who fails to comply with any
provision of this subchapter with respect to any person is liable to such person…”
for potential damages and costs. 15 U.S.C. §1692k(a). The complaint on its face,
taken as true and viewed in the light most favorable to Plaintiff, states a claim
upon which relief may be granted under the FDCPA. As such, we vacate the
dismissal and remand this case to the district court for further proceedings.

VACATED and REMANDED.

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Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another

Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

WILLIAM C. SQUIRES, et al.,

Plaintiffs,

v.

BAC HOME LOANS SERVICING, LP,

Defendant.

[ipaper docId=77192351 access_key=key-qvlz5w5j7vowd31ef4g height=600 width=600 /]

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DELMAN v. BANK OF AMERICA – VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT “Countrywide Mortgage Practices”

DELMAN v. BANK OF AMERICA – VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT “Countrywide Mortgage Practices”


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
———————————————————x
RICHARD DELMAN, derivatively
on behalf of the Nominal Defendant,
Plaintiff,

–against –

CHARLES K. GIFFORD, D. PAUL JONES,
JR., FRANK P. BRAMBLE, SR., MONICA
C. LOZANO, THOMAS J. MAY, VIRGIS
W. COLBERT, CHARLES O. HOLLIDAY,
BRIAN T. MOYNIHAN, DONALD E.
POWELL, MUKESH D. AMBANI, SUSAN
S. BIES, CHARLES O. ROSSOTTI and
CHARLES H. NOSKI,
Defendants,

–and–

BANK OF AMERICA CORP., a Delaware
corporation,
Nominal Defendant

EXCERPTS:

2. Thus, at the time the CWC acquisition closed in July 2008, BAC management and
its Board had a full understanding of the potential liabilities which might arise in the future.
Rather than coming clean, or resolving the CWC issues, BAC management and the Board
adopted a wrongful and obstinate policy: refusing to cooperate with government regulators
investigating the Company’s mortgage foreclosure practices; obtaining reimbursement on
government guaranteed mortgages which were likely violative of the False Claims Act; failing
to comply with an Arizona Consent Decree requiring that BAC fairly entertain mortgage
modifications; engaging in massive “Robo-Signing” of foreclosure documents; agreeing to
cease Robo-Signing, but then resuming Robo-Signing despite its questionable legality. (“Robo
Signing” is the bulk execution of foreclosure-related documents without actual review for
accuracy and adequacy).

[…]

4. The BAC Board knew that BAC was legally obligated to proceed with legacy
mortgage foreclosures in a prudent lawful manner. This did not occur. Rather, the Board wholly
failed to rein in management. On the contrary, it let management engage in blatantly unlawful
excesses as outlined above and as discussed in detail below. The BAC Board is composed of
banking, finance and business professionals who fully understand the issues facing BAC, and
who fully appreciate why its response need to be lawful and transparent. Nonetheless, the Board
ignored numerous c1ear-as-day reports of irregularity bordering on fraud, and allowed the
Company to get drawn in to additional illegality, materially raising BAC’s potential liability.
As a result, the BAC Board breached its fiduciary duty and should be held liable to BAC for the
harm it has caused.

[ipaper docId=68772564 access_key=key-22m84cze0ajakeka54aj height=600 width=600 /]

 

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Defense denies standing in Foreclosure Fraud case

Defense denies standing in Foreclosure Fraud case


Think about this when you read this article:

1. Did the borrower have a choice or was he/she coerced into accepting MERS, who they really had no idea of what or who it was?

2. Was it ever disclosed that many of the lenders are shareholders of MERS, also who may own the first or second position… this includes Fannie Mae who is a shareholder?

3. Since Fannie (GSE) is owned by “taxpayers” why is she acting 100% private – 100% of the time?

4. One may have been coerced into having MERS in their documents but one would never accept forgery or robo-signing because everyone knows this would be fraud and therefore void the transaction…like a check.

5. Exactly why did Fannie fire FL law firms and exactly how long did Fannie know of robo-signing?

Michigan Messenger-

With mounting evidence of robo-signing and other alleged fraud perpetrated by banks, foreclosure law firms and others, Fannie Mae and Flagstar Bank have filed a new defense of such actions in Ingham County Circuit Court — and Ingham County Register of Deeds Curtis Hertel, Jr. is crying foul.

“What they are basically saying is they can forge an assignment and there is nothing the citizen or court can do about it. It is a brazen attempt to legalize robosigning,” says Hertel. “It’s just another example of Fannie Mae thumbing its nose at the American people, and unfortunately while they are under federal bailout we are paying for it.”

This is happening in the case of a Haslett man who suffered a stroke and fell behind on his mortgage payments. As a result, Flagstar Bank and Fannie Mae foreclosed on him and are now in the final stages of evicting him from his Haslett home, says Hertel.

[MICHIGAN MESSENGER]

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COMPLAINT | AIG vs. BANK OF AMERICA (BAC) “Massive Fraud”

COMPLAINT | AIG vs. BANK OF AMERICA (BAC) “Massive Fraud”


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

AMERICAN INTERNATIONAL GROUP,
INC., AIG SECURITIES LENDING
CORPORATION, AMERICAN
GENERAL ASSURANCE COMPANY,
AMERICAN GENERAL LIFE AND
ACCIDENT INSURANCE COMPANY,
AMERICAN GENERAL LIFE
INSURANCE COMPANY, AMERICAN
GENERAL LIFE INSURANCE
COMPANY OF DELAWARE,
AMERICAN HOME ASSURANCE
COMPANY, AMERICAN
INTERNATIONAL GROUP
RETIREMENT PLAN, CHARTIS
PROPERTY CASUALTY COMPANY,
CHARTIS SELECT INSURANCE
COMPANY, CHARTIS SPECIALTY
INSURANCE COMPANY, COMMERCE
AND INDUSTRY INSURANCE
COMPANY, FIRST SUNAMERICA LIFE
INSURANCE COMPANY, LEXINGTON
INSURANCE COMPANY, NATIONAL
UNION FIRE INSURANCE COMPANY
OF PITTSBURGH, PA, NEW
HAMPSHIRE INSURANCE COMPANY,
SUNAMERICA ANNUITY AND LIFE
ASSURANCE COMPANY,
SUNAMERICA LIFE INSURANCE
COMPANY, THE INSURANCE
COMPANY OF THE STATE OF
PENNSYLVANIA, THE UNITED STATES
LIFE INSURANCE COMPANY IN THE
CITY OF NEW YORK, THE VARIABLE
ANNUITY LIFE INSURANCE
COMPANY, and WESTERN NATIONAL
LIFE INSURANCE COMPANY,

Plaintiffs,


against-

BANK OF AMERICA CORPORATION,
BANC OF AMERICA SECURITIES LLC,
BANK OF AMERICA, NATIONAL

ASSOCIATION, BANC OF AMERICA
FUNDING CORPORATION, BANC OF
AMERICA MORTGAGE SECURITIES,
INC., ASSET BACKED FUNDING
CORPORATION, NB HOLDINGS
CORPORATION, MERRILL LYNCH &
CO., INC., MERRILL LYNCH
MORTGAGE LENDING, INC., FIRST
FRANKLIN FINANCIAL
CORPORATION, MERRILL LYNCH
MORTGAGE CAPITAL INC., MERRILL
LYNCH CREDIT CORPORATION,
MERRILL LYNCH, PIERCE, FENNER &
SMITH INC., MERRILL LYNCH
MORTGAGE INVESTORS, INC.,
COUNTRYWIDE FINANCIAL
CORPORATION, COUNTRYWIDE
CAPITAL MARKETS LLC,
COUNTRYWIDE HOME LOANS, INC.,
COUNTRYWIDE SECURITIES
CORPORATION, CWABS, INC.,
CWALT, INC., CWHEQ, INC., and
CWMBS, INC.,

Defendants.

via: ZeroHedge

[ipaper docId=61867007 access_key=key-2bxzujbxqv9bho918llg height=600 width=600 /]

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INGHAM COUNTY COMPLAINT | HERTEL v. BANK OF AMERICA “Inappropriately Claim ‘R.E. Transfer Taxes’ Exemptions”

INGHAM COUNTY COMPLAINT | HERTEL v. BANK OF AMERICA “Inappropriately Claim ‘R.E. Transfer Taxes’ Exemptions”


STATE OF MICHIGAN
30th CIRCUIT COURT FOR THE COUNTY OF INGHAM

CURTIS HERTEL, JR. individually and as
Register of Feeds for Ingham County,

V

BANK OF AMERICA N.A.;
BAC HOME LOANS SERVICING, LP;
WELLS FARGO BANK, N.A.;
COUNTRYWIDE HOME LOANS SERVICING, LP;
ORLAN ASSOCIATES, PC;
TROTT & TROTT, PC;
FEDERAL NATIONAL MORTGAGE ASSOCIATION
d/b/a FANNIE MAE;
FEDERAL HOME LOAN MORTGAGE CORPORATION
d/b/a FREDDIE MAC

[ipaper docId=58558531 access_key=key-2j0q93d6b73tux1i0v1v height=600 width=600 /]

[scribd id=58558531 key=key-2j0q93d6b73tux1i0v1v mode=list]

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Bank of America apologizes for mistakenly accusing 5,000 Oregonians of being late on property taxes

Bank of America apologizes for mistakenly accusing 5,000 Oregonians of being late on property taxes


Oregonian-

Bank of America said today it mistakenly sent nearly 5,000 Oregonians letters claiming they owe property taxes and might be risking foreclosure when they, in fact, don’t.

Washington County Department of Assessment and Taxation director Rich Hobernicht estimates his office has received 1,000 calls since Monday from homeowners who received letters from BAC Tax Services Corp, an arm of the bank’s BAC Home Loan Servicing division.

Continue reading [OREGONLive]

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Oregon USDC “No right to foreclose, Granted to enjoin f/c” | STATON v. BAC, MERS, ReconTrust

Oregon USDC “No right to foreclose, Granted to enjoin f/c” | STATON v. BAC, MERS, ReconTrust


Civ. No.6:10-cv-01306-AA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

Dated: June 1, 2011

OPINION AND ORDER

Pamela K. Staton Pro se plaintiff

Russell L. Baldwin
Preparation attorney for plaintiff

Stephen P. McCarthy
Pilar C. French
Lane Powell PC
Attorneys for defendants

AIKEN, Chief Judge:

Defendants BAC Home Loans Servicing, L.P. (sued erroneously as Bank of America (BAC) Home Loans Servicing, L.P.), Mortgage Electronic Registration Systems, Inc., and ReconTrust, N.A. move to dismiss all of plaintiff Pamela Staton’s claims pursuant to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 8(a). Defendants’ motion is granted in part and denied in part.

In addition, plaintiff moves for partial summary judgment pursuant to Fed. R. Civ. P. 56, seeking an injunction. Plaintiff’s motion is denied.

BACKGROUND

In 2005, plaintiff took out a loan from Countrywide Home Loans, Inc. (“Countrywide”) in the amount of $735,500. Pursuant to this transaction, plaintiff executed a promissory note in favor of Countrywide. The note was secured by a Deed of Trust, which lists Countrywide as the lender, Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary, “acting solely as a nominee for Lender and Lender’s successors and assigns,” and Fidelity National Title Insurance as the trustee. The Deed of Trust was filed in Lane County, Oregon on November 29, 2005.

In September 2009, plaintiff stopped making payments required under the loan agreement. On October 19, 2009, Countrywide’s loan servicer, BAC Home Loans Servicing, L.P. (“BAC”), sent a Notice of Intent to Accelerate to plaintiff. The Notice of Intent to Accelerate advised plaintiff that she was required to make a payment of $8,915.61, plus other regular payments, by November 18, 2009, otherwise the default would not be considered cured and the mortgage payments would be accelerated with the full amount becoming due and payable. Plaintiff made a partial payment, but failed to fully cure the default.

On November 10, 2009, BAC sent plaintiff another Notice of Intent to Accelerate, relating to a home equity line of credit loan secured by the property. The second Notice of Intent to Accelerate advised plaintiff that she was required to make a payment of $719.61, plus other regular payments, by December 15, 2009, otherwise the default would not be considered cured and the mortgage payments would be accelerated with the full amount becoming due and payable. Plaintiff failed to cure the default.

Sometime prior to initiating foreclosure proceedings in 2010, Countrywide securitized, bundled and sold, or “tranched,” plaintiff’s promissory note. As a result of the “tranching,” one or more parties, including CWALT, Inc. (“CWALT”), gained a beneficial interest in the note.

On January 6, 2010, MERS, as nominee for Countrywide, assigned the Deed of Trust to The Bank of New York Mellon, fka

The Bank of New York (“BNY”), as trustee for certificate holder CWALT. On January 11, 2010, the Assignment of the Deed of Trust was recorded in the official records of Lane County.

On January 6, BNY by BAC appointed ReconTrust to serve as successor trustee for the Deed of Trust. This appointment was executed on January 6, 2010, and recorded in the official records of Lane County on January 11, 2010.

On January 6, 2010, ReconTrust executed a Notice of Default and Election to sell plaintiff’s property. On January 11, 2010, the Notice of Default and Election to Sell was recorded in the official records of Lane County. On June 1, 2010, ReconTrust recorded the following documents in the official records of Lane County: Affidavit of Mailing of Notice of Sale, Affidavit of Publication of Notice of Sale, Affidavit of Service, and a copy of the Notice of Sale.

On September 17, 2010, plaintiff filed a claim against defendants in Lane County Circuit Court. On September 25, 2010, plaintiff filed an amended complaint, alleging the following: 1) declaratory judgment, pursuant to Or. Rev. Stat. § 28.010, that the actions of defendants are void pursuant to Oregon’s Trust Deed Act and enjoining defendants from foreclosing plaintiff’s property; 2) fraud; 3) breach of the covenant of good faith and fair dealing; 4) breach of fiduciary duty; 5) declaratory judgment, pursuant to Or. Rev. Stat. §§ 28.010, 28.020, defining the rights and duties between plaintiff, defendants, and mortgage pass-through certificate holders; 6) quiet title; 7) remove cloud on title; and 8 statutory claim for invalid encumbrance. Plaintiff also seeks economic damages of $1,135,000, non-economic damages of $150,000, and “actual” damages in the amount of $1,060,000. On October 20, 2010, defendants removed this action to this Court.

On November 1, 2010, ReconTrust executed a new Notice of Default and Election to Sell the Property. On November 4, 2010, the Notice of Default and Election to Sell was recorded in the official records of Lane County. The Notice stated that the foreclosure sale was set to occur on March 16, 2011, at the Lane County Courthouse. A foreclosure sale has not yet occurred.

STANDARDS

Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 For the purpose of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff, and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983. However, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Igbal. 129 S. Ct. 1937, 1951 (2009.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitles to a judgment as a matter of law.” Fed. R. Civ. P. 56(c) . Substantive law on an issue determines the materiality of a fact. T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987. Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986.

DISCUSSION

Defendants contend that all of plaintiff’s claims fail to state a claim as a matter of law, and therefore should be dismissed. Defendants also assert that plaintiff’s declaratory relief claims should be dismissed because defendants had the authority to commence and prosecute a nonjudicial foreclosure action.

I. Preliminary Matters

To support their motion to dismiss, defendants request that this Court take judicial notice of MERS’ Terms and Conditions. The agreement outlines the relationship between MERS and its members, such as Countrywide or BNY, and permits MERS to initiate a foreclosure sale on behalf of a lender.

Plaintiff argues that this Court should not take judicial notice “for the purpose of determining whether defendants’ actions were permissible under Oregon law because plaintiff disputes the authenticity of the documents.” Plf.’s Resp. to Defs.’ Mot. For S.J. at pg. 8. The Court assumes that, by referring to “documents,” plaintiff is objecting to more than just the Terms and Conditions. The Court surmises from plaintiff’s response that plaintiff does not want this Court to take judicial notice of the Assignments of the Deed of Trust and Appointment of Successor Trustee, because plaintiff believes they were fraudulently executed.

Additionally, plaintiff requests that this Court take judicial notice of ReconTrust’s “debt collection activity.” In her response, plaintiff reprints a portion of a Notice of Sale issued by ReconTrust, which states that “[t]his is an attempt to collect a debt.” Id. at 15. Plaintiff seeks judicial notice of this document to support her claim that ReconTrust must be licensed with Oregon as a debt collector.

Review of a Rule 12(b)(6) motion is generally limited to the complaint. U.S. v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003. However, a court may consider extrinsic documents if they are integral to the plaintiff’s claims and their authenticity is undisputed. Parrino v. FHP, Inc. , 146 F.3d 699, 706 & n. 4 (9th Cir. 1998). Under the Federal Rules of Evidence, a “judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also Ritchie, 342 F.3d at 909. Facts subject to judicial notice may be considered on a motion to dismiss. Mullis v. U.S. Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987.

Despite plaintiff s statement that she “disputes the authenticity” of MERS’ Terms and Conditions, plaintiff has alleged no facts suggesting that this agreement is counterfeit or false in any way. I find, however, that the Terms and Conditions are not integral to plaintiff’s claims, and therefore, defendants’ request for judicial notice is denied.

Further, regarding documents recorded with Lane County, the Court must take judicial notice if plaintiff intends on using these documents to establish that defendants fraudulently foreclosed on her property. Therefore, these documents are integral to plaintiff’s claims and should have been attached to her complaint. Plaintiff seems to implicitly recognize this fact, as she references these documents in great detail in her complaint, arguably incorporating them by reference. Since plaintiff now attaches these documents to her response, the Court presumes that plaintiff would like the Court to consider them, if only for the sake of establishing defendants’ fault. These documents are also part of the public record. Defendants make no objection to these documents. Thus, even though plaintiff disputes their validity, the Court takes judicial notice of documents recorded with Lane County, including the Assignments of the Deed of Trust and Appointment of Successor Trustee.

Finally, the Court declines to take judicial notice of plaintiff’s document relating to ReconTrust’s “debt collection activity.” The language that plaintiff incorporated into her response was an excerpt from a Notice of Sale for a property other than plaintiff’s. Here, plaintiff has provided no evidence that ReconTrust sent her a similar notice. Thus, the fact that ReconTrust sent a notice to another person in which it identified itself as a debt collector is not integral to plaintiff s claim. Further, the Court has no way to confirm the authenticity of this Notice, since the parties bound by it are not now before this Court. As such, plaintiff’s request for judicial notice is denied.

II. Plaintiff s First Claim for Declaratory Judgment

Plaintiff’s first claim for relief is unclear. It consists of a convoluted list of allegations and facts, supported by “information and belief.” Plaintiff seems to allege that any action of BAC, MERS and ReconTrust are void because they were not licensed under Oregon law. Further, plaintiff is seeking a declaration that defendants Recontrust and MERs are not qualified to act as trustees pursuant to Oregon’s Trust Deed Act, such that defendants’ foreclosure proceedings are invalid. Plaintiff, however, misconstrues the law and facts surrounding this case.

A. Oregon’s Licensing Requirements

BAC, MERS, or ReconTrust are not required to be licensed by the Oregon Secretary of State with respect to foreclosing the Deed of Trust. Moreover, ReconTrust is not required to be registered with the Oregon Department of Business and Consumer Services as a debt collector. As defendant correctly points out, Oregon law excludes corporations that engage in certain corporate business activities from state licensing requirements, and provides that the corporate acts of unlicensed foreign corporations are not invalid. See Or. Rev. Stat. §§ 60.701, 60.704.

Generally, a “foreign corporation may not transact business” in Oregon “until it has been authorized to do so by the Secretary of State.” Or. Rev. Stat. § 60.701(1). However, defendants argue that certain activities, even if conducted in Oregon, do not subject a foreign corporation to licensing requirements. Specifically, defendants cite to § 60.701(2), which states: “[t]he following activities among others, do not constitute transacting business . . . (g) Creating or acquiring indebtedness, mortgages and security interests in real or personal property; (h) Securities or collecting debts or enforcing mortgages and security interests in property securing the debts.” Or. Rev. Stat. § 60.701(2).

Here, defendants’ actions fall expressly within this exception, as they initiated foreclosure proceedings by enforcing plaintiff’s mortgage. Accordingly, I find that defendants were not required to receive a license from the Secretary of State in order to foreclose on plaintiff’s property.

Finally, contrary to plaintiff’s contentions, ReconTrust need not be qualified to act as a debt collector under Oregon law. Plaintiff cites to no authority that imposes such a requirement on an entity such as ReconTrust. Thus, plaintiff’s assertion that ReconTrust must be licensed as a debt collector is conclusory, and as such, this Court must not presume the statement to be true. Iqbal, 129 S.Ct. at 1951. In fact, upon the allegations contained in the complaint, ReconTrust’s conduct is merely that of a trustee seeking foreclosure and sale pursuant to a Deed of Trust, which is not a debt collecting activity. Hulse v. Ocwen Fed. Bank, FSB, 195 F.Supp.2d 1188, 1203-4 (D.Or. 2002). As such, defendants’ motion to dismiss is granted in part in regard to these aspects of plaintiff s first claim.

B. Oregon’s Trust Deed Act

ReconTrust, the only defendant who actually did act as a trustee in this case, does meet the definition of “trustee” under Oregon’s Trust Deed Act. The Act defines trustee as “a person, other than the beneficiary . . . [who] is qualified to be a trustee under ORS 86.790.” Or. Rev. Stat. § 86.705(6). Under § 86.790, a “financial institution or trust company, as defined by ORS 706.008, that is authorized to do business under the laws of Oregon or the United States” is qualified to be a trustee. Or. Rev. Stat. § 86.790 (1) (b) .

Here, all defendants conceivably could meet the definition of a “trustee,” because all are financial institutions authorized to do interstate business. See Or. Rev. Stat. § 706.008 (defining a “financial institution” as “insured institutions . . . and federal credit unions” including “the trust department of a bank”). Specifically, ReconTrust is a subsidiary of Bank of America, an FDIC insured, federally chartered bank. Therefore, as a matter of law, ReconTrust is qualified to act as a trustee.

In addition, plaintiff contends that Oregon’s Trust Deed Act does not permit MERS to be designated as beneficiary as nominee for the lender. Plaintiff relies on a number of cases outside of this district, the majority of which are factually distinct, in support of her claim. See MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 861 N.E.2d 81 (2006; Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), etc. Plaintiff contends that these cases hold that MERS can never acquire a beneficial interest in a promissory note or Deed of Trust, because MERS is merely an entity which tracks and records the sale of mortgage instruments. As such, plaintiff argues that MERS’ lacks authority to assign trust deeds, promissory notes, appoint successor trustees or institute foreclosure.

Further, plaintiff alleges that someone other than the holder of the note is proceeding against the security. Accordingly, plaintiff argues that, to the extent that MERS’ assignment had any effect, it is void, because the “assignment of a security interest without the assignment of the debt that it secures yields the assignee nothing.” Schleef v. Purdy, 107 Or. 71, 78, 214 P. 137 (1923) .

Oregon’s Trust Deed Act defines “beneficiary” as “the person named or otherwise designated in a trust as the person for whose benefit a trust deed is given.” Or. Rev. Stat. § 86.790(1)(d). Thus, nothing in the statute expressly prohibits MERS from being designated as a “beneficiary” under a trust deed.

Defendants argue that, under the broad language of Or. Rev. Stat. § 86.790(1)(d), MERS is an appropriate beneficiary as listed on the Deed of Trust. They contend that courts, both within and outside the Ninth Circuit, have recognized that MERS, acting as nominee for a lender, can serve as a beneficiary, and as such, has the authority to assign its interest under a Deed of Trust. See Vawter v. Quality Loan Serv. Corp. Of Wash., 707 F.Supp.2d 1115 (W.D.Wash., 2010); Stewart v. MERS, 2010 WL 10655131, *12 (D.Or. Feb. 9, 2010) ; In re Huacrins, 357 B.R. 180 (Bkrtcy. D.Mass. 2006); etc.

While neither party cites to it, this Court is aware of authority within this district that has questioned MERS’ authority to assign its beneficial interest under a Deed of Trust. See In Re Allman, 2010 WL 3366405, *9-10 (Bkrtcy.D.Or. Aug. 24, 2010). While not directly on point, Allman held that the relationship of MERS to the lender “is more akin to that of a straw man than to a party possessing all the rights given a buyer,” and accordingly the true “beneficiary” under the Deed of Trust remained the lender. Id.

Regardless, I find that it is inappropriate to resolve this issue at this stage in the proceedings. In the last several months, “a veritable tsunami of investigation into and litigation over mortgage foreclosure practices broke loose on a national scale.” Bertrand v. Suntrust Mortgage, Inc., Civ. No. 09-857, Opinion and Order at 2 (D.Or. Nov. 1, 2010) . Until case law within this jurisdiction is developed regarding MERS’ role as beneficiary, it is impossible to conclude whether plaintiffs’ complaint states a claim.

Moreover, plaintiff is correct that a foreclosure may be invalid where the entity commencing foreclosure is not the holder of the note. Despite plaintiff’s requests, defendants have failed to provide proof that the foreclosing bank owned the promissory note or can trace its assignment. Therefore, the foreclosure may have been improper independent of MERS’ general authority to assign the Deed of Trust.

Therefore, plaintiff’s claim for a judgement declaring that defendants’ actions are void for failure to be licensed by the state of Oregon or to comply with Oregon’s Trust Deed Act fail as a matter of law and are dismissed.

However, to the extent that plaintiff is seeking a declaration that MERS lacks the general authority to assign the Deed of Trust as beneficiary, or that the foreclosure was improper because the foreclosing bank did not own the underlying note or failed to track its assignment, defendants’ motion to dismiss is denied.

Finally, as an equitable matter, I find that it is necessary to enjoin defendants from completing foreclosure proceedings until all issues regarding the disputed property are resolved. As such, this Court finds it unnecessary to address plaintiff’s motion for partial summary judgment, since the result sought therein has now been reached.

III. Plaintiff’s Second Claim for Fraud

Plaintiff’s second claim alleges that BAC and ReconTrust made misrepresentations to plaintiff regarding ReconTrust’s authority to act as trustee under Oregon law. Further, plaintiff contends that BAC made material misrepresentations about a negotiated short sale, a forbearance, and its status as a holder in due course entitled to payment.

As discussed above, ReconTrust is qualified to act as a trustee under Oregon’s Trust Deed Act. Accordingly, any representations that were allegedly made by BAC or ReconTrust relating to ReconTrust’s role as trustee were not false and cannot support a claim for fraud. Therefore, defendants’ motion to dismiss is granted in part in regard to this aspect of plaintiff’s second claim.

Moreover, I find that the remainder of plaintiff’s fraud claim fails to meet Fed. R. Civ. P. 9(b)’s heightened pleading requirements. To satisfy Rule 9(b)’s standard, “the pleader ‘must state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.'” Schreiber Distrib. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). A plaintiff must also “‘set forth what is false or misleading about a statement, and why it is false.'” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003. Additionally, “Rule 9(b) does not allow a complaint to merely lump multiple defendants together but ‘require[s] plaintiffs to differentiate their allegations . . . and inform each defendant separately of the allegations surrounding his alleged participation in fraud.'” Swartz v. KPMG LLP, 476 F.3d 756, 764-5 (9th Cir. 2007) .

Here, plaintiff failed to identify the time, place, specific content, and the parties that allegedly made false representations. Furthermore, if plaintiff is alleging fraud based in part on an agreement between the parties that BAC would accept payment of a lesser amount in full satisfaction of the loan, plaintiff needs to provide evidence of this agreement to the Court. I will, however, grant plaintiff leave to amend her First Amended Complaint to add pleadings sufficient to meet Fed. R. Civ. P. 9(b).

Finally, while not included in the second claim for relief, plaintiff alleges that defendants fraudulently recorded documents with Lane County. Specifically, plaintiff alleges that defendants impermissibly used a “robo-signer,” who was not authorized to act on defendants’ behalf, in order to endorse the Assignments of the Deed of Trust and the Notice of Default. Plaintiff seeks relief for this alleged wrongdoing in her eighth claim for invalid encumbrances. However, because the basis of that claim is defendants’ fraud, the Court suggests that plaintiff include these allegations instead in her second claim for relief, and plead them in accordance with Fed. R. Civ. P. 9(b).

IV. Plaintiff’s Third Claim for Breach of the Covenant of Good Faith and Fair Dealing

Plaintiff’s third claim for breach of the covenant of good faith and fair dealing appears to be asserted only against defendant BAC. Plaintiff’s claim must be dismissed for two reasons. First, the factual allegations supporting the claim are conclusory. The entirety of plaintiff’s third claim states merely that “BAC had a common law duty of good faith and fair dealing to plaintiff by virtue of the contract between defendant BAC and plaintiff. Defendant BAC breached its covenant of good faith and fair dealing as set forth above.” Amended Complaint ¶ 30-1. Because the pleadings amount to nothing more than bare assertions of the elements of a claim, they are not entitled to the presumption of truth. Ashcroft, 129 S.Ct. at 1951.

Second, plaintiff again misconstrues the law and facts surrounding this case. The basis of plaintiff’s claim appears to be that BAC breached its contract with plaintiff in bad faith. In fact, plaintiff first breached the contract by failing to pay her mortgage in accordance with the terms of the promissory note. Therefore, to the extent that defendants proceeded to foreclose pursuant to the express terms of the contract, there can be no claim for breach of the covenant of good faith and fair dealing. Uptown Heights Assocs. Ltd. P’ship v. Seafirst Corp., 320 Or. 638, 645, 891 P.2d 639 (1995) (“if a written contract between the parties expressly allows for a particular remedy by one of the parties, in the face of a specified breach, the parties’ objectively ‘reasonable expectations’ under the contract include the invocation of that remedy in the face of that breach. The party invoking its express, written contractual right does not, merely by so doing, violate its duty of good faith”).

Accordingly, defendants’ motion to dismiss is granted in part, and plaintiff’s third claim is dismissed.

V. Plaintiff s Fourth Claim for Breach of Fiduciary Duty

Plaintiff withdraws her claim for breach of fiduciary duty against defendant BAC, acknowledging that BAC s relationship with plaintiff is not fiduciary in nature. Uptown Heights, 320 Or. At Page 18 649-50. Therefore, plaintiff’s fourth claim is dismissed.

VI. Plaintiff’s Fifth Claim for Declaratory Judgment

Plaintiff’s fifth claim is for a declaratory judgment defining the rights of the parties. Plaintiff alleges that the securitization of her loan was in direct violation of the parties’ lending agreement. However, as stated above, plaintiff has failed to provide this Court with any documentation of the loan or its terms. Further, plaintiff’s allegations in the complaint regarding the terms of the agreement are unspecific and conclusory. Thus, it is impossible for this Court to determine whether defendants could have acted impermissibly in regard to selling investor certificates in plaintiff’s underlying note.

As stated above, if the foreclosing bank cannot show that they own the underlying note or cannot trace its assignment, in part or wholly due to the securitization of the note, plaintiff may have a right to a declaratory judgement. However, plaintiff’s fifth claim for relief currently fails to state a claim, and is therefore, dismissed. Defendants’ motion to dismiss is granted in that regard.

VII. Plaintiff’s Sixth Claim for Quiet Title

Plaintiff’s six claim seeks a decree from this Court that the property is free and clear of all encumbrances, including the Deed of Trust and promissory note. Here, the factual allegations supporting the complaint are once again conclusory. The entirety of plaintiff’s sixth claim states that ” [p]laintiff is the owner in possession of real property . . . Defendants . . . are not in possession of plaintiff’s real property . . . Defendants claim an interest adverse to plaintiff’s.” Amended Complaint ¶ 4751.

Plaintiff is merely alleging the elements of a claim to quiet title. See Or. Rev. Stat. § 105.605 (“Any person claiming an interest or estate in real property not in the actual possession of another may maintain a suit in equity against another who claims an adverse interest”). However, plaintiff has failed to allege any particular facts entitling her to relief.

In addition, even if plaintiff’s complaint did state a claim to quiet title, it would not be an appropriate remedy here. In general, a person may bring an equitable quiet title action to obtain resolution of a dispute relating to adverse or conflicting claims to real property. Spears v. Dizick, 235 Or. App. 594, 598, 234 P.3d 1037 (2010). While it is possible that defendants may have failed to follow the proper foreclosure procedures, it is undisputed that defendants had the right to foreclose based upon plaintiff’s default under the loan. Thus, because plaintiff is unable to cure the default, she no longer has a valid claim for entitlement to the property. As such, there are no conflicting claims to the property for this Court to resolve.

Further, “[e]quitable relief does not lie if there is an adequate remedy at law.” Alsea Veneer, Inc. v. State of Oregon, 318 Or. 33, 43, 862 P.2d 95 (1993). Here, plaintiff is seeking several other remedies, including over $2 million in monetary damages, an injunction against defendants from foreclosing on her property, and a declaration that she owns the property free of any mortgage. Based on her complaint, plaintiff clearly believes that there are other adequate remedies available at law. Further, this Court is enjoining defendants from commencing foreclosure proceedings until this matter is resolved. As such, plaintiff has failed to show that she is not entitled to further equitable relief.

Accordingly, plaintiff’s claim fails as a matter of law and defendants’ motion to dismiss is granted in part. plaintiff’s sixth claim is dismissed.

VIII. Plaintiff’s Seventh Claim to Remove Cloud on Title

Plaintiff’s seventh claim seeks the removal of cloud on title. Plaintiff’s claim fails for two reasons. First, the factual allegations supporting the complaint are conclusory. The entirety of plaintiff’s seventh claim states only that defendants “claim a lien or other encumbrance adverse to plaintiff’s interest in real property. The encumbrance is invalid because the beneficiary under the deed of trust is not entitled to payment on the note, as set forth above.” Amended Complaint SI 52-3. Once more, plaintiff is merely asserting the bare elements of a claim. Ashcroft, 129 S.Ct. at 1951. Further, because plaintiff “incorporates by reference [all] paragraphs,” it is difficult to even discern what relief plaintiff is seeking and the purported basis for that relief.

Second, as discussed above, MERS, the listed beneficiary under the deed of trust, is not seeking payment on the note. Rather, MERS’ role was limited to essentially recording the transfer of the Deed of Trust. Accordingly, plaintiff is not entitled to relief on that basis.

Therefore, plaintiff’s seventh claim for relief fails as a matter of law. Defendants’ motion to dismiss is granted in part and plaintiff’s seventh claim for relief is dismissed.

VIV. Plaintiff’s Eighth Claim for Invalid Encumbrance

Plaintiff’s final claim is for invalid encumbrances pursuant to Or. Rev. Stat. § 205.450 et seq. The factual allegations supporting the claim are again conclusory. Plaintiff’s eighth claim states only that “[d]efendant BAC knowingly filed, or directed defendants MERS and ReconTrust to file, an invalid claim of incumbrance against plaintiff’s real property.” Amended Complaint St 56. Plaintiff then goes on to list documents that were recorded in the Lane County Clerk’s Office. Amended Complaint SI 57. However, the fact that these documents were recorded in Lane County does not establish that they were in anyway invalid, much less that defendants knew that they were invalid. Thus, plaintiff is again merely asserting the elements of a claim, without identifying any particular facts entitling her to relief. See Or. Rev. Stat. 205.470 (“[a]ny person who knowingly files, or directs another to file, an invalid claim of encumbrance shall be liable to the owner of the property”). Accordingly, plaintiff fails to state a plausible claim upon which relief can be granted. Ashcroft, 129 S.Ct. at 1951.

Therefore, defendants’ motion to dismiss is granted in part, and plaintiff’s eighth claim for relief is dismissed.

CONCLUSION

For the reasons stated above, defendants’ motion to dismiss (doc. 10) is GRANTED in part and DENIED in part as follows: defendants’ motion is GRANTED as to plaintiff’s claims for fraud, breach of covenant of good faith and fair dealing, breach of fiduciary duty, fifth claim for declaratory judgment, quiet title, remove cloud on title, and invalid incumbrance; defendants’ motion is DENIED as to plaintiff’s’ first claim for declaratory judgment.

This Court, however, GRANTS plaintiff leave to amend her First Amended Complaint in order to allege facts sufficient to state a claim for relief, and to replead her fraud claim, such that it complies with Fed. R. Civ. P. 9(b)’s heightened pleading requirements. The parties’ requests for oral argument are DENIED as unnecessary.

Further, because this Court is enjoining defendants from foreclosing until the underlying dispute regarding the property is resolved, plaintiff’s motion for partial summary judgment (doc. 32), seeking an injunction, is DENIED.

Finally, this Court encourages the parties to pursue mediation via the U.S. District Court of Oregon’s Foreclosure Mediation Panel.

IT IS SO ORDERED.

Ann Aiken
United States District Judge

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MA Homeowner gets foreclosure notice of $0 ZERO Dollars & ZERO Cents

MA Homeowner gets foreclosure notice of $0 ZERO Dollars & ZERO Cents


WWLP-

NORTHAMPTON, Mass. (WWLP) – The housing crisis ended with many homes in foreclosure, which is why it was no joke when a man from Northampton got a letter stating his home would be seized if he didn’t pay up zero dollars and zero cents!

Not wanting to lose his house, he called the 22News I-team and finally got some answers.

Continue reading… WWLP

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Justice Department Settles with Bank of America and Saxon Mortgage for Illegally Foreclosing on Servicemembers

Justice Department Settles with Bank of America and Saxon Mortgage for Illegally Foreclosing on Servicemembers


Department of Justice
Office of Public Affairs

FOR IMMEDIATE RELEASE

Thursday, May 26, 2011

Justice Department Settles with Bank of America and Saxon Mortgage for Illegally Foreclosing on Servicemembers

Settlement Includes a Minimum of $22 Million in Relief for Victims

WASHINGTON – The Justice Department today announced settlements with two lenders under the Servicemembers Civil Relief Act (SCRA) to resolve allegations that the lenders wrongfully foreclosed upon active duty servicemembers without first obtaining court orders, in violation of the SCRA. Combined, the settlements provide more than $22 million in monetary relief for the victims.

Under the first settlement , BAC Home Loans Servicing LP, formerly known as Countrywide Home Loans Servicing LP, a subsidiary of Bank of America Corporation, will pay $20 million to resolve a lawsuit alleging that Countrywide foreclosed on approximately 160 servicemembers between January 2006 and May 2009 without court orders.   In addition to the $20 million, Countrywide agreed to pay any servicemember wrongfully foreclosed in the period from June 2009 through 2010.  The complaint alleges that Countrywide did not consistently check the military status of borrowers on whom it foreclosed through at least May 31, 2009. The complaint was filed in the Central District of California, where Countrywide is headquartered.

Under the second settlement, Saxon Mortgage Services Inc., a subsidiary of Morgan Stanley, will pay $2.35 million to resolve a lawsuit alleging that Saxon foreclosed on approximately 17 servicemembers between January 2006 and June 2009 without court orders. In addition to the $2.35 million, Saxon agreed to pay any servicemember wrongfully foreclosed in the period from July 2009 through 2010.   The complaint alleges that Saxon failed to consistently or accurately check the military status of borrowers on whom it foreclosed through at least June 30, 2009.   The complaint was filed in the Northern District of Texas, where Saxon is headquartered.

“The men and women who serve our nation in the armed forces deserve, at the very least, to know that they will not have their homes taken from them wrongfully while they are bravely putting their lives on the line on behalf of their country,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division of the Department of Justice. “The Civil Rights Division is committed to aggressively enforcing those laws that protect the rights of servicemembers. All lenders have an obligation to do their part to work with servicemembers while these brave men and women focus on keeping us safe.   The Justice Department also thanks the Department of Defense for its critical assistance in identifying servicemembers whose rights were violated”

“Countrywide Home Loans failed to protect and respect the rights of our servicemembers, failed to comply with clearly mandated procedures and foreclosed against homeowners who are valiantly serving our nation,” said André Birotte Jr, U.S. Attorney for the Central District of California.   “Military families lost their homes when Countrywide violated the law, causing undue stress to wartime personnel who have been protected from such actions since the Civil War.”

“With the numerous sacrifices our servicemembers make while they are serving our country, the last thing they need to worry about is whether or not their families will be forced from their homes,” said James T. Jacks, U.S. Attorney for the Northern District of Texas. “These lenders’ callous disregard for the SCRA, a law which was designed to insulate these patriots from unlawful foreclosures and other civil and financial obligations while they are on active duty, is deplorable and I applaud the Department’s Civil Rights Division’s efforts in identifying and seeking remedies for these wronged service members.”

Of the approximately 160 servicemembers upon whom Countrywide foreclosed without obtaining court orders, Countrywide allegedly foreclosed in many instances where it knew, or should have known, about their military status.   The victims include individuals who have served honorably in Iraq and Afghanistan.   The Department of Justice initiated its SCRA investigation of Countrywide in response to a referral by the U.S. Marine Corps regarding an active duty servicemember who was facing foreclosure by Countrywide.

Under the consent decree, Countrywide will establish a settlement fund of $20 million to compensate the servicemembers upon whom Countrywide foreclosed between January 1, 2006, and May 31, 2009.   In addition to this settlement fund, Countrywide has agreed to compensate any additional SCRA-eligible individuals on whom Countrywide foreclosed without court orders between June 1, 2009, and Dec. 31, 2010.   The consent decree also requires numerous corrective measures, including SCRA training for Countrywide employees and agents, developing modified SCRA policies and procedures and referring future SCRA complaints to the Justice Department.   Countrywide will also repair any negative credit report entries related to the allegedly wrongful foreclosures and will not pursue any remaining amounts owed under the mortgages. Countrywide now will check the Defense Manpower Data Center’s website and its own files prior to conducting any foreclosure, and will not foreclose in violation of the SCRA if the borrower is in military service or is otherwise protected by the SCRA.

Of the approximately 18 servicemembers upon whom Saxon foreclosed without obtaining court orders, Saxon allegedly foreclosed on at least 10 servicemembers when Saxon knew or should have known about their military status.   The servicemembers Saxon foreclosed on include men and women who have served honorably in Iraq, some of whom were severely injured in the line of duty or suffer from post-traumatic stress disorder.   The Department of Justice initiated its SCRA investigation in response to an inquiry from Sergeant James Hurley, who resolved his claims against Saxon earlier this year in a confidential settlement.

Under the consent decree, Saxon will establish a settlement fund of $2.35 million to compensate the servicemembers upon whom Saxon allegedly wrongfully foreclosed between 2006 and 2009.   In addition to this settlement fund, Saxon also has agreed to compensate any additional SCRA-eligible servicemembers on whom Saxon foreclosed without court orders between July 1, 2009, and Dec. 31, 2010.   The consent decree also requires numerous corrective measures, including SCRA training for Saxon employees and agents, developing modified SCRA policies and procedures, and referring future SCRA complaints to the Justice Department.   Saxon will also repair any negative credit report entries related to the wrongful foreclosures and will not pursue any remaining amounts owing under the mortgages. Saxon now will check the Defense Manpower Data Center’s website and its own files prior to conducting any foreclosure, and will not foreclose in violation of the SCRA if the borrower is in military service or is otherwise protected by the SCRA.

The division’s SCRA investigations have resulted in litigation or settlements enforcing SCRA’s provisions for termination of residential lease agreements, protection against enforcement of storage liens on towed vehicles without court orders, reduction of interest rates to six percent on credit obligations, and a prohibition against paying pre-payment penalties on mortgage loans when a servicemember must move for military service.

President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes.   The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources.   The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.   For more information on the task force, visit www.stopfraud.gov .

Servicemembers and their dependents who believe that their SCRA rights have been violated should contact the nearest Armed Forces Legal Assistance Program office.   Please consult the military legal assistance office locator at http://legalassistance.law.af.mil and click on the Legal Services Locator.   Additional information about the Justice Department’s enforcement of the SCRA and the other laws protecting servicemembers is available at www.servicemembers.gov.   Servicemembers who believe they may have been victims, can contact the banks directly at 1-800-896-7743, mailbox 6 for Countrywide or 1-800-896-7743, mailbox 995 for Saxon.

11-683 Civil Rights Division

[Source: http://www.justice.gov/opa/pr/2011/May/11-crt-683.html]

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FL 5DCA Reversed | “Vacant Home, Purported Service” SILVA v. BAC HOME LOANS

FL 5DCA Reversed | “Vacant Home, Purported Service” SILVA v. BAC HOME LOANS


ABNER SILVA,
Appellant,

v. …………………………Case No. 5D10-3511

BAC HOME LOANS SERVICING, L.P., ETC.,
Appellee.
________________________________/

Opinion filed May 6, 2011

Non Final Appeal from the Circuit Court
for Orange County,

Emerson Thompson, Jr., Senior Judge.

Matthew D. Valdes, Kaufman, Englett &
Lynd, PLLC, Orlando, for Appellant.

No Appearance for Appellee.

PER CURIAM.

Abner Silva, the defendant below, seeks review of an order denying his motion to set aside a default final judgment entered against him. We reverse.

In this foreclosure case, substituted service of process was secured on Silva under section 48.031, Florida Statutes (2010), by serving a “Luz Rodriguez”, who purportedly lived at the mortgaged property. However, the affidavits and other information submitted in support of Silva’s motion below established that the mortgaged property had been vacant for some time prior to the purported service, that he did not ?know anyone by the name of Luz Rodriguez, and that his usual place of abode was, and had been for eighteen months prior to the purported service, in Miami.

The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was,
therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).

REVERSED.

MONACO, C.J., SAWAYA and ORFINGER, JJ., concur.

[ipaper docId=55010635 access_key=key-yfuardbwb8evgw2jmls height=600 width=600 /]

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Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm

Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm


Excerpts:

Q. So through that corporate authority as
Exhibit 4 to this deposition, MERS assented to the terms
Of this assignment of mortgage?

A. Through me.

Q. So it was you that assented to the terms of
This assignment of mortgage.

A. The one in this case, yes.

Q. And no one else.

A. Correct

Q. And you signed as vice president of MERS
acting solely as a nominee for America’s Wholesale
Lender; is that correct?

A. Yes, it is.

Q. How did you know that MERS was nominee for
America’s Wholesale Lender?

A. By reviewing documentation.

Q. What documentation?

A. I don’t specifically recall what I reviewed
In this case to see that, to determine that, but I would
have reviewed either the mortgage or I would have
reviewed other documentation that would have established
that to me.

Q. So in this case you don’t remember a single
Document that you looked at that would establish the
Nominee status of MERS for America’s Wholesale Lenders;
Is that correct?

A. I don’t

Q. Did someone at America’s Wholesale Lender
Tell you that MERS was acting as the nominee?

A. No.

Q. Did someone at MERS tell you they were
Acting as Nominee for America’s Wholesale Lender?

A. NO.

Q. Was America’s Wholesale Lender in existence
On May 19, 2010?

A. don’t now.

Q. Did you check that before signing this
assignment of mortgage?

A. No.

<SNIP>

Q. Now, you’ve said you review the MERS
Website and you’ve seen documents like this, like
Composite Exhibit 6. Any reason why you wouldn’t review
the documents contained in Exhibit 6 before executing the
assignment of mortgage?

A. It’s not necessary.

Q. Why not?

A. Because it’s not. Because I decided it’s
not.

Q. You as vice president of MERS?

A. In every possible capacity as it relates to
This case.

Q. Did you sign this assignment of mortgage
after being retained as counsel for the plaintiff?

A. After my law firm was retained?

Q. (Nods head.)

A. Is that the question?

Q. Sure.

A. Yes.

Q. Okay. So you executed an assignment to be
Used as evidence in your case, correct?

A. Sure.

Q. Is that a yes?

A. It’s a sure.

Q. Is that a yes o a no?

A. You said sure earlier. Was that a yes or a
No?

Q. Okay. So…

A. It’s a yes.

Q. It’s a yes.

And were you aware when you signed the
assignment of mortgage that MERS was a defendant in this
Case?

[ipaper docId=53916343 access_key=key-1rk8dl6pcjqgja1oy0ki height=600 width=600 /]

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Law Offices of David J. Stern, P.A. files suits against BAC Home Loans and Bank of America

Law Offices of David J. Stern, P.A. files suits against BAC Home Loans and Bank of America


The Law Offices of David J. Stern, P.A. v. Bank of America Corporation

Case Number: 1:2011cv21349
Filed: April 18, 2011
Court: Florida Southern District Court
Office: Miami Office
Presiding Judge: Chief Judge Federico A. Moreno
Nature of Suit: Contract – Other Contract
Cause: 28:1332 Diversity-Notice of Removal
Jury Demanded By: None

~

The Law Offices of David J. Stern, P.A. v. Bac Home Loans Servicing, LP

Case Number: 0:2011cv60833
Filed: April 18, 2011
Court: Florida Southern District Court
Office: Fort Lauderdale Office
Nature of Suit: Contract – Other Contract
Cause: 28:1332 Diversity-Other Contract
Jury Demanded By: None

~

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

BAC Settlement and Fannie’s Recent Announcement Prohibiting Servicers From Settling with Mortgage Insurers

BAC Settlement and Fannie’s Recent Announcement Prohibiting Servicers From Settling with Mortgage Insurers


Question:

Did Fannie Mae issue the recent announcement [see below] prohibiting servicers from settling reps and warranties claims with Mortgage insurers specifically because BAC /Countrywide just settled with one of their big insurers AND took back 80% of the loss.

From SeekingAlpha-

The cash settlement of $1.1 billion will be paid in full by March 31, 2012. The initial payment of $850 million was paid on April 14, 2011. In addition, Bank of America and Countrywide have agreed to a reinsurance arrangement that will reimburse Assured Guaranty for 80% of all paid losses on the 21 first lien RMBS transactions until aggregate collateral losses in those transactions exceed $6.6 billion. Cumulative collateral losses on these transactions were approximately $1.3 billion with no paid losses by Assured Guaranty as of December 31, 2010. As of December 31, 2010, Assured Guaranty’s gross economic loss on these RMBS transactions, which assumes cumulative projected collateral losses of $4.6 billion, was $490 million. The total estimated value of the settlement is expected to be accretive to shareholders’ equity and adjusted book value, a non-GAAP financial measure.

Now lets see… Could BAC possibly pass the losses on to the govt. for the Fannie and Freddie guaranteed securities and is this why Fannie is trying to put her foot down with this letter below and say that the servicers do NOT have the authority to make such deals with the insurers, causing the GSE’s to eat the losses that the servicers are blithely bargaining away.

Meanwhile the deal has already been struck and partially paid. Will taxpayers be on the hook for yet another disastrous toxic originating love story?

Did BAC breach any fiduciary responsibilities with Fannie?

[ipaper docId=53095767 access_key=key-1wd6kmoow89ycd06lprq height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (0)

Keller Rohrback L.L.P. Announces Investigation of Bank of America Corp. and JPMorgan Chase & Co. Regarding Force-Placed Insurance

Keller Rohrback L.L.P. Announces Investigation of Bank of America Corp. and JPMorgan Chase & Co. Regarding Force-Placed Insurance


Keller Rohrback’s investigation focuses on alleged abuses by Bank of America and JPMorgan Chase, among others, such as: failing to pay for hazard insurance out of the borrower’s escrow funds, charging homeowners for unnecessary insurance, backdating policies providing coverage retroactively, utilizing their own subsidiaries to provide the hazard insurance, and purchasing policies from companies who share fees or profits with the servicers—often without disclosing this information to the borrower. Keller Rohrback is also investigating the force-placed insurance practices of the following mortgage loan servicers:

Aurora Loan Services IndyMac Mortgage Services
Downey Savings & Loan Litton Loan Servicing LP
EMC Mortgage Corp. Nationstar Mortgage LLC
Financial Freedom PennyMac
GMAC Mortgage, Inc. Saxon
HSBC SunTrust Mortgage, Inc.

Source: Keller Rohrback L.L.P.

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (1)

Minnesota Dist. Court DENIES BAC, MERS MTD “TILA VIOLATION” LABELLE v. AMERCIAN BROKERS CONDUIT

Minnesota Dist. Court DENIES BAC, MERS MTD “TILA VIOLATION” LABELLE v. AMERCIAN BROKERS CONDUIT


UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Ann LaBelle and Daniel LaBelle,
Plaintiffs,
v.
American Brokers Conduit; BAC
Home Loans Servicing, LP, a Texas
Limited Partnership as Successor in
Interest to Countrywide Home Loans
Servicing, LP; Mortgage Electronic
Registration Systems, Inc., a Delaware corporation
; John and Jane Does 1-10,
Defendants.

Excerpts:

Thus, the authenticity of BAC’s and MERS’ submitted documents is questioned by Plaintiffs. Consequently, at this motion to dismiss stage, the Court will not consider the signed documents which BAC and MERS have submitted. Therefore, holding the Plaintiffs’ allegations as true, the Court finds that Plaintiffs have alleged a violation of TILA which would extend Plaintiffs’ right to rescind to three years. Plaintiffs’ notice of rescission was sent June 13, 2009, within three years of the transaction.

<SNIP>

BAC contends that it is simply a servicer of the loan and has never owned a pecuniary interest, and that the true owner of the obligation is Freddie Mac. Once again however, Defendants rely on documents outside of the pleadings to prove their point. Defendants have submitted an affidavit stating that Freddie Mac is the true owner of the mortgage. This Court will not consider this affidavit for the purposes of this motion to dismiss. Plaintiffs Amended Complaint alleges that BAC maintains a pecuniary interest in the loan. Furthermore, Plaintiffs’ Amended Complaint references a letter from BAC’s counsel which states that BAC is the true owner of mortgage obligation. Taking Plaintiffs’ allegations as true, Plaintiffs have pled facts sufficient to establish that BAC is an assignee, against whom Plaintiffs may seek rescission.

Continue reading below…

[ipaper docId=47911920 access_key=key-33rgs0knmegm2wxozcu height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (1)

OK CIV. APPEALS COURT REVERSAL “CONFLICTS IN NOTE OWNERSHIP”, “MERS BIFURCATION” BAC HOME LOANS fka COUNTRYWIDE v. White

OK CIV. APPEALS COURT REVERSAL “CONFLICTS IN NOTE OWNERSHIP”, “MERS BIFURCATION” BAC HOME LOANS fka COUNTRYWIDE v. White


Via: Brian Davies

IN THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA. DIVISION I.

BAC HOME LOANS SERVICING, L.P.
f/k/a COUNTRYWIDE HOME LOANS

v.

RONALD R. WHITE and TERI L. WHITE

Excerpt:

Therefore, in Oklahoma it is not possible to bifurcate the security interest from the note. An assignment of the mortgage to one other than the holder of the note is no effect.

[…]

The record on summary judgment in the present case contains conflicting evidence as to the ownership of the note. The note, in which the White’s ppromised to pay a sum certain to the order of Lender, is a negotiable instrument pursuant to 12A O.S.2001 30104(a).

[…]

The note in the record appears to be indorsed to Countrywide Document Custody Services, a division of Treasury Ban, NA; we are unable to determine from the record submitted to us that the instrument was later indoresed in blank and transferred to BAC.

Continue below to read the research this judge has done…

[ipaper docId=45098591 access_key=key-sns1tix39e3g6jp3lx3 height=600 width=600 /]

Read more on Bifurcation from James McGuire and Alvie Campbell below

“OREO COOKIE”: How They Bifuricated Our Mortgage Loan 101

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (8)

TESTIMONY OF REBECCA MAIRONE DEFAULT SERVICING EXECUTIVE BANK OF AMERICA HOME LOANS

TESTIMONY OF REBECCA MAIRONE DEFAULT SERVICING EXECUTIVE BANK OF AMERICA HOME LOANS


TESTIMONY OF
REBECCA MAIRONE
DEFAULT SERVICING EXECUTIVE
BANK OF AMERICA HOME LOANS
Before the
HOUSE FINANCIAL SERVICES
HOUSING AND COMMUNITY OPPORTUNITY SUBCOMMITTEE
WASHINGTON, DC
NOVEMBER 18, 2010

Excerpt:

When industry concerns arose with the foreclosure affidavit process, we took the step to stop foreclosure sales nationwide and launch a voluntary review of our foreclosure procedures. Thus far, we have confirmed the basis for our foreclosure decisions has been accurate. At the same time, however, we have not found a perfect process. There are areas where we clearly must improve, and we are committed to making needed changes.

We’ve also used this opportunity to further evaluate our modification program and identify additional enhancements we can make. We have done this based on feedback from you, our customers, community groups, investors, and from our regulators. We also are committed to a constructive dialogue with State Attorneys General, who have taken a leadership role on these issues.

Continue reading…

[ipaper docId=43162330 access_key=key-enbxztru4aybr6y0upd height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (2)

[VIDEO] Mortgage Fraud Clearing House

[VIDEO] Mortgage Fraud Clearing House


MUST WATCH

Investors are looking for banks to buy back potentially fraudulent residential mortgage-backed securities (RMBS). “The Strategy Session” hosts discuss this topic with Talcott Franklin, the principal of Talcott Franklin PC, whose firm has organized a RMBS clearinghouse on behalf of investors.

“Creature of their own Creation”

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (3)

Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS

Institutional Holders of Countrywide-Issued RMBS Issue Notice of Non-Performance Identifying Alleged Failures by Master Servicer to Perform Covenants and Agreements in More Than $47 Billion of Countrywide-Issued RMBS


PR Newswire

HOUSTON, Oct. 18 /PRNewswire/ –Today, the holders of over 25% of the Voting Rights in more than $47 billion of Countrywide-issued RMBS sent a Notice of Non-Performance (Notice) to Countrywide Home Loan Servicing, as Master Servicer (“Countrywide Servicing”), and to Bank of New York, as Trustee, identifying specific covenants in 115 Pooling and Servicing Agreements (PSAs) that the Holders allege Countrywide Servicing has failed to perform.

The Holders’ Notice alleges that each of these failures has materially affected the rights of the Certificateholders under the relevant PSAs. Under Section 7.01 of the PSAs, if any of the cited failures “continues unremedied for a period of 60 days after the date on which written notice of such failure has been given … to the Master Servicer and the Trustee by the Holders of Certificates evidencing not less than 25% of the Voting Rights evidenced by the Certificates,” that failure constitutes an Event of Default under the PSAs.

In a previous release, the Holders emphasized their intent to invoke all contractual remedies available to them to recover their losses and to protect their rights. Kathy Patrick of Gibbs & Bruns LLP, lead counsel for the Holders, emphasized that the Holders’ notice does not seek to halt loan modifications for troubled borrowers. Instead, it urges the Trustee to enforce Countrywide Servicing’s obligations to service loans prudently by maintaining accurate loan records, demanding the repurchase of loans that were originated in violation of underwriting guidelines, and compelling the sellers of ineligible or predatory mortgages to bear the costs of modifying them for homeowners or repurchasing them from the Trusts’ collateral pools.

Patrick also noted that the group of Holders that tendered today’s Notice of Non-Performance is larger, and encompasses more Countrywide-issued RMBS deals, than were included in the August 20 instruction letter. When asked why the group of holders was larger, Patrick replied, “Ours is a large, determined, and cohesive group of bondholders. We have a clearly defined strategy. We plan to vigorously pursue this initiative to enforce Holders’ rights.”

The Notice of Non-Performance, which is the first step in the process of declaring an Event of Default, was issued on behalf of Holders in the following Countrywide-issued RMBS:

Deal Name   .   .                 .       .
Deal Name    .       .      .                      .
Deal Name
CWALT 2004-32CB

CWHL 2004-22
CWL 2006-15
CWALT 2004-6CB

CWHL 2004-25
CWL 2006-16
CWALT 2004-J1
CWHL 2004-29
CWL 2006-19
CWALT 2005-14
CWHL 2004-HYB9
CWL 2006-2
CWALT 2005-21CB
CWHL 2005-11
CWL 2006-20
CWALT 2005-24
CWHL 2005-14
CWL 2006-22
CWALT 2005-32T1
CWHL 2005-18
CWL 2006-24
CWALT 2005-35CB
CWHL 2005-19
CWL 2006-25
CWALT 2005-36
CWHL 2005-2
CWL 2006-26
CWALT 2005-44
CWHL 2005-3
CWL 2006-3
CWALT 2005-45
CWHL 2005-30
CWL 2006-5
CWALT 2005-56
CWHL 2005-9
CWL 2006-7
CWALT 2005-57
CB CWHL 2005-HYB3
CWL 2006-9
CWALT 2005-64
CB CWHL 2005-HYB9
CWL 2006-BC2
CWALT 2005-72
CWHL 2005-R3
CWL 2006-BC3
CWALT 2005-73CB
CWHL 2006-9
CWL 2006-BC4
CWALT 2005-74T1
CWHL 2006-HYB2
CWL 2006-BC5
CWALT 2005-81
CWHL 2006-HYB5
CWL 2006-SD1
CWALT 2005-AR1
CWHL 2006-J2
CWL 2006-SD3
CWALT 2005-J5
CWHL 2006-OA5
CWL 2006-SD4
CWALT 2005-J9
CWHL 2006-R2
CWL 2006-SPS2
CWALT 2006-14CB
CWHL 2007-12
CWL 2007-2
CWALT 2006-20CB
CWHL 2007-16
CWL 2007-5
CWALT 2006-37R
CWHL 2008-3R
CWL 2007-6
CWALT 2006-41CB
CWL 2005-10
CWL 2007-7
CWALT 2006-HY12
CWL 2005-11
CWL 2007-9
CWALT 2006-OA11
CWL 2005-13
CWL 2007-BC1
CWALT 2006-OA16
CWL 2005-16
CWL 2007-BC2
CWALT 2006-OA17
CWL 2005-2
CWL 2007-BC3
CWALT 2006-OA6
CWL 2005-4
CWL 2007-QH1
CWALT 2006-OA9
CWL 2005-5
CWL 2007-S3
CWALT 2006-OC10
CWL 2005-6

CWALT 2006-OC2
CWL 2005-7

CWALT 2006-OC4
CWL 2005-8

CWALT 2006-OC5
CWL 2005-9

CWALT 2006-OC6
CWL 2005-AB2

CWALT 2006-OC7
CWL 2005-AB3

CWALT 2007-17CB
CWL 2005-AB4

CWALT 2007-23CB
CWL 2005-BC5

CWALT 2007-24
CWL 2005-IM1

CWALT 2007-OA7
CWL 2006-10

CWALT 2008-2R
CWL 2006-12

.

Copyright 2010 PR Newswire. All Rights Reserved

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in bac home loans, bank of america, bank of new york, countrywide, pooling and servicing agreementComments (1)

MERS ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE

MERS ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE


Court of Appeals of Ohio

UNION BANK CO. v. NORTH CAROLINA FURNITURE EXPRESS, LLC.

2010 Ohio 4176

The Union Bank Company, Plaintiff-Appellee,
v.
North Carolina Furniture Express, LLC, et al., Defendants-Appellants, and
Jeffrey Smith, et al., Defendants-Appellees.
Bac Home Loans Servicing Lp, Plaintiff-Appellant,
v.
Jeffrey T. Smith, et al., Defendants-Appellees.

Case No. 2-10-01

Court of Appeals of Ohio, Third District, Auglaize County.

Date of Decision: September 7, 2010.

Jason A. Whitacre, Laura C. Infante and Kathryn M. Eyster for Appellant, BAC Home Loans Servicing, L.P., fka Countrywide Home Loans Servicing, L.P.

Randy L. Reeves and Sarah N. Newland for Appellees, Jeffrey Smith and Kandi Smith.

John F. Moul for Appellee, Treasurer of Auglaize County

Jerry M. Johnson and Christine M. Bollinger for Appellee, The Union Bank Company

Thomas J. Katterheinrich for Appellee, Minster Bank.

OPINION

PRESTON, J.

{¶1} Appellant-defendant, BAC Home Loans Servicing, L.P., f.k.a. Countrywide Home Loans Servicing, L.P., (hereinafter “BAC”), appeals the Auglaize County Court of Common Pleas’ judgments, which vacated BAC’s foreclosure action and denied motions to consolidate and substitute BAC as a party-defendant. For the reasons that follow, we affirm.

{¶2} This case involves two separate foreclosure actions filed in the Auglaize County Court of Common Pleas that sought judgments on certain notes and mortgages encumbering the same parcel of real estate, commonly known as 422 South Franklin Street, New Bremen, Ohio (hereinafter “the property”). The facts of this case are largely not in dispute. On November 13, 2002, Jeffrey Smith and Kandi Smith (hereinafter “the Smiths”), who were members of North Carolina Furniture Express, L.L.C., executed a note in favor of SIB Mortgage Corp., a New Jersey corporation (hereinafter “SIB”), and a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (hereinafter “MERS”), solely as nominee for SIB Mortgage Corp., for $141,000.00. The mortgage was subsequently recorded in the Auglaize County Recorder’s Office on November 18, 2002.

{¶3} Several years later, on January 19, 2007, the Smiths executed another note and mortgage in favor of appellee Minster Bank (hereinafter “Minster Bank”) for $30,000.00. This mortgage was recorded in the Auglaize County Recorder’s Office on January 26, 2007. Then, on March 5, 2007, the Smiths executed three separate notes and mortgages in favor of appellee The Union Bank Company (hereinafter “Union Bank”) for $100,000.00, $25,000.00, and $24,500.00, which were subsequently recorded in the Auglaize County Recorder’s Office on March 9, 2007.[ 1 ]

{¶4} On July 23, 2008, Union Bank filed a complaint for foreclosure against the property, which was designated Case No. 2008 CV 0267 (hereinafter “the 2008 foreclosure”). In the complaint, Union Bank listed North Carolina Furniture Express, L.L.C., the Smiths, Minster Bank, MERS, SIB, the Auglaize County Treasurer, and Entrust Administration, Inc. as defendants possibly having an interest in the property. All named defendants were served with notice. According to the record, MERS was served on July 30, 2008, and SIB was served on November 14, 2008. Minster Bank and the Smiths filed timely answers to the complaint.

{¶5} Union Bank filed a motion for default judgment against defendants MERS, SIB, and Entrust Administration, Inc., on March 10, 2009. The motion for default judgment was sent to all named defendants in the matter, including MERS and SIB. The trial court granted Union Bank default judgment on March 10, 2009, specifically stating that the defendants had “been legally served with summons and that Defendants are in default for answer or appearance and therefore has no interest in and to said premises and the equity of redemption of said Defendants in the real estate described in Plaintiff’s Complaint shall be forever cut off, barred, and foreclosed.” (2008 CV 0267, Mar. 10, 2009 JE). On March 11, 2009, Union Bank filed a motion for summary judgment against the Smiths, Minster Bank, and the Auglaize County Treasurer. Similarly, a copy of the motion for summary judgment was sent to all named defendants in the matter, including MERS and SIB. On March 30, 2009, the trial court granted the motion for summary judgment and issued a judgment of foreclosure providing that the lien priority on the property was as follows: the Auglaize County Treasurer, Minster Bank, and then Union Bank.

{¶6} Shortly thereafter, the Smiths filed for bankruptcy on May 12, 2009, causing the matter to be stayed. On June 9, 2009, the bankruptcy court issued a relief from stay and abandonment for Union Bank, which allowed the 2008 foreclosure matter to continue effective on July 31, 2009, and the property was scheduled for sheriff’s sale on October 1, 2009. However, due to a notice of sale not being received or served on all party defendants, the sale was cancelled and rescheduled for December 4, 2009.

{¶7} During this time and right after the Smiths had filed for bankruptcy, on June 1, 2009, MERS (acting solely as a nominee for SIB) assigned appellant BAC its interest in the property. (2009 CV 312, Oct. 7, 2009 JE, Ex. A). Consequently, on August 28, 2009, BAC filed a complaint for foreclosure against the property in the Auglaize County Court of Common Pleas, which was designated Case No. 2009 CV 0312 (hereinafter “the 2009 foreclosure”). Along with the complaint, BAC filed a preliminary judicial report showing what it believed to be a representation of any and all interests in the property.[ 2 ] In its complaint, BAC named the Smiths, Minster Bank, Union Bank, and the Auglaize County Treasurer as defendants having a possible interest in the property. Only Minster Bank and Union Bank filed answers to the complaint.[ 3 ] Thereafter, on October 7, 2009, BAC filed a motion for default judgment against the non-answering parties, and that same day, the trial court issued a judgment entry and decree in foreclosure granting BAC’s motion for default judgment and listing the lien priority on the property in the following order: the Auglaize County Treasurer, BAC, Minster Bank, and then Union Bank.

{¶8} As a result, on October 9, 2009, Union Bank filed a motion contra to BAC’s motion for default judgment and a motion to dismiss BAC’s complaint in the 2009 foreclosure action based on the existence of the 2008 foreclosure action. Additionally, on October 16, 2009, Union Bank and Minster Bank filed a joint motion to vacate the judgment entry of default in the 2009 foreclosure action, since they had not been afforded sufficient time to respond to BAC’s motion before the judgment entry of foreclosure had been granted.

{¶9} In response to the existence of the 2008 foreclosure action, on October 21, 2009, BAC filed several motions, which included: (1) a motion to substitute defendant BAC for defendant MERS; (2) a motion to set aside the default judgment action entered against MERS in the 2008 foreclosure action; (3) a motion to stay the 2008 foreclosure default judgment entry pending resolution of the motion to set aside the judgment entry; (4) a motion to consolidate cases 2008 CV 0267 and 2009 CV 0312; or in the alternative (5) a motion for leave to file an answer to the 2008 complaint and cross-claim.[ 4 ] Union Bank filed a response opposing all of BAC’s motions in the 2008 foreclosure case.

{¶10} In both of the foreclosure actions, the trial court set all of the motions for a hearing, which was held on November 3, 2009. Thereafter, on December 3, 2009, the trial court issued a judgment entry addressing the issues in both the 2008 and 2009 foreclosure cases, but specifically stating that it was not consolidating the cases for any other purposes other than the issues presented at the November 3, 2009 hearing. Consequently, in its judgment entry, the trial court vacated part of the 2009 foreclosure action, citing that the foreclosure portion of the action had been a “clerical error” within Civ.R. 60(A). Nevertheless, the trial court found that there had been no error as against the Smiths, and thus it allowed the 2009 foreclosure action to stand, but again only as against the Smiths individually. In addition, the trial court dismissed the 2009 foreclosure complaint on the basis of res judicata, and denied the motion to consolidate and motion to substitute defendant BAC as a party-defendant in the 2008 foreclosure action finding that BAC had not acquired an interest in the property by operation of the doctrine of lis pendens.

{¶11} BAC now appeals and raises four assignments of error. For ease of our discussion we also elect to address all of BAC’s assignments of error together.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO EXPRESSLY RULE ON APPELLANT’S MOTION TO SET ASIDE DEFAULT JUDGMENT AND FAILED TO APPLY THE PROPER STANDARD FOR RULING ON SUCH A MOTION.

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT VACATED THE OCTOBER 7, 2009 JUDGMENT ENTRY IN CASE NUMBER 2009 CV 0312 PURSUANT TO CIV.R. 60(A).

ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REPRIORITIZED THE LIENS AGAINST THE PROPERTY SUBJECT TO CASE NUMBERS 2008 CV 0267 AND 2009 CV 0312.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT FOUND THAT BAC DID NOT OBTAIN AN INTEREST IN THE PROPERTY WHEN IT OBTAINED ITS ASSIGNMENT BY OPERATION OF THE LIS PENDENS DOCTRINE.

{¶12} Essentially, BAC argues that the follwing decisions in the trial court’s December 3, 2009 judgment entry were erroneous: (1) its ruling on the motion to substitute; (2) failing to rule on its motion to set aside the default judgment pursuant to Civ.R. 60(B); (3) vacating part of the 2009 foreclosure action; and (4) its reprioritization of the liens against the property in the 2008 foreclosure action.

{¶13} As stated above, the trial court first denied the motion to substitute BAC as a party-defendant on the basis that it did not obtain any interest in the subject real estate when it obtained its assignment from MERS. (Dec. 3, 2009 JE at 3-4). As a result, the trial court vacated part of the 2009 foreclosure action (only as against the banks) and failed to address BAC’s motion to set aside the default judgment pursuant to Civ.R. 60(B). (Id.). After reviewing the record and the applicable law, we believe that the trial court did not abuse its discretion in rendering its December 3, 2009 judgment entry.

{¶14} First, we will address the motion to substitute BAC as a party-defendant for MERS in the 2008 foreclosure action. Civ.R. 25 governs the substitution of parties. Specifically, Civ.R. 25(C) provides that “[i]n cases of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original action.” The decision of whether to allow a substitution of parties is discretionary with the trial court and may be granted only upon a finding of a transfer of interest. Ahlrichs v. Tri-Tex Corp. (1987), 41 Ohio App.3d 207, 534 N.E.2d 1231. As a result, this Court uses an abuse of discretion standard of review when determining whether a trial court erred with respect to a motion to substitute pursuant to Civ.R. 25. Argent Mtge. Co. v. Ciemins, 8th Dist. No. 90698, 2008-Ohio-5994, ¶9, citing Young v. Merrill Lynch, Pierce, Fenner & Smith (1993), 88 Ohio App.3d 12, 623 N.E.2d 94. An abuse of discretion constitutes more than an error of judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse-of-discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id.

{¶15} While an assignment typically transfers the lien of the mortgage on the property described in the mortgage, as BAC acknowledged in its reply brief, an assignee can only take, and the assignor can only give, the interest currently held by the assignor. R.C. 5301.31. With that stated, it is clear under the facts of this case that BAC never obtained an interest in the property; thus, it could not have been substituted as a party-defendant in the 2008 foreclosure action. Here, with respect to the 2008 foreclosure action, the date the last party was served with notice was on January 28, 2009, which was almost six months before the purported assignment from MERS to BAC. Next, on March 11, 2009, the trial court issued a judgment entry of default against MERS foreclosing on its interest in the property. Once again, this default judgment was entered against MERS almost three months before the purported assignment from MERS to BAC occurred. The effect of this default judgment against MERS resulted in MERS having “no interest in and to said premises and the equity of redemption of said Defendants in the real estate described in Plaintiff’s Complaint shall be forever cut off, barred, and foreclosed.” (2008 CV 0267, Mar. 10, 2009 JE). Nevertheless, according to the documents filed by BAC to evidence its assignment from MERS, MERS assigned its interest to BAC on June 1, 2009. (2009 CV 312, Oct. 7, 2009 JE, Ex. A). Consequently, as a result of the already entered default judgment against MERS, when BAC was assigned MERS’ interest in the property on June 1, 2009, BAC did not receive a viable interest in the property. See Quill v. Maddox (May 31, 2002), 2nd Dist. No. 19052, at *2 (mortgagee’s assignee failed to establish that it had an interest in the property, as mortgagee’s interest was foreclosed by the court before mortgagee assigned its interest to assignee, which could acquire no more interest than mortgagee held). Thus, we find that it was reasonable for the trial court to have denied the motion to substitute BAC as a party-defendant for MERS given its lack of interest in the property.

{¶16} Additionally, BAC argues that the trial court erred because it did not apply the GTE Automatic standard to its motion for relief from judgment. See GTE Automatic Elec., Inc. v. ARC Industries, Inc. (1976), 47 Ohio St.2d 146, 150, 351 N.E.2d 113. In particular, BAC claims that the trial court never ruled on its Civ.R. 60(B) motion. BAC claims that not addressing its motion was erroneous. However, in this particular case, in light of our discussion above, there would have been no need to address the motion and apply any standard to the motion for relief from judgment because BAC lacked standing to challenge the default judgment entered against MERS.

{¶17} Civ.R. 60(B) allows “a party or legal representative” to vacate a default judgment upon successfully demonstrating that: “(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time * * *.” GTE Automatic Elec., Inc., 47 Ohio St.2d at 150, (emphasis added). However, BAC was neither a party nor was it a legal representative since it was not included in the original 2008 foreclosure action and was not allowed to be substituted as a party-defendant for MERS. Central Ohio Receivables Co. v. Huston (Sept. 20, 1988), 8th Dist. No. 87AP1-185, at *2-3 (holding that an assignee did not have standing to challenge a default judgment entered against its assignor). Accordingly, BAC lacked standing to challenge the default judgment entered against its assignor MERS in the 2008 foreclosure action, and the trial court did not abuse its discretion when it failed to rule on its motion.

{¶18} With respect to the trial court’s decision to vacate the 2009 foreclosure action, we note that the trial court did not vacate the 2009 foreclosure action in its entirety; rather, the court only vacated the portion of the action that pertained to an interest in the property. As we will discuss in further detail below, after dismissing the parties who were brought in because they had an interest in the property (i.e., Union Bank and Minster Bank), the only aspect in the 2009 foreclosure action that remained was the default judgment action against the Smiths. (Dec. 3, 2009 JE at 3-4). Nevertheless, we find that the trial court’s decision to vacate part of the 2009 foreclosure action was not an abuse of discretion.

{¶19} First of all, since MERS’ interest in the property had already been foreclosed prior to the filing of the 2009 foreclosure action, BAC did not obtain any interest in the property when it was assigned the mortgage from MERS, thus, BAC could not have brought a foreclosure action at all. Moreover, typically a pending foreclosure action between the same parties is grounds for abatement or dismissal of an assignee’s complaint. Avco Financial Services Loan, Inc. v. Hale (1987), 36 Ohio App.3d 65, 520 N.E.2d 1378; High Point Assn. v. Pochatek (Nov. 30, 1995), 8th Dist. Nos. 68000, 68395, at *3; Bates v. Postulate Invests., L.L.C., 176 Ohio App.3d 523, 2008-Ohio-2815, 892 N.E.2d 937, ¶16. Accordingly, it was reasonable for the trial court to dismiss BAC’s complaint based on the fact that the 2008 foreclosure action was still pending at the time BAC filed its 2009 foreclosure action. Therefore, although we may not agree with the trial court’s grounds for vacating most of the 2009 foreclosure action, we find that the trial court’s decision was reasonable under the circumstances and was not an abuse of discretion.

{¶20} Finally, as mentioned above, despite the trial court’s denial of the motion to substitute and its decision to vacate the 2009 foreclosure action as it related to any interest in the property, the trial court did add BAC as a lienholder in the December 3, 2009 judgment entry and stated that BAC had a fourth priority lien against the property. (Dec. 3, 2009 JE at 4). BAC claims this decision was also an abuse of discretion. Specifically, BAC claims that because the trial court recognized it had a lien against the property when it added BAC to the 2008 foreclosure lienholder list, the trial court clearly abused its discretion when it only recognized BAC as being the fourth priority lienholder, despite the fact that it had been assigned MERS lien, which would have given it the first priority lienholder to the property. Overall, BAC claims that the trial court could not have recognized it had an interest in the property without finding that it was also the first priority lienholder. While we acknowledge that the trial court obviously recognized that BAC had an interest the property, we disagree with BAC’s argument that this interest had to come from MERS’ first priority lienholder status pursuant to the mortgage.

{¶21} Despite the fact that the trial court vacated most of the 2009 foreclosure action, the trial court found that BAC’s default judgment and decree of foreclosure was valid but only as against the Smiths. This was because “as between BAC and Defendants Smith, BAC should obtain recovery of its Promissory Note, as assigned.” (Dec. 3, 2009 JE at 4). “The right to judgment on the note is one cause of action. The right to foreclose a mortgage is another cause of action. One is legal-the other is equitable.” Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, 894 N.E.2d 65, ¶15, quoting Fed. Deposit Ins. Corp. v. Simon (Aug. 17, 1977), 9th Dist. No. 8443. This is because a “mortgage is merely security for a debt and is not the debt itself.” Id., quoting Gevedon v. Hotopp, 2nd Dist. No. 20673, 2005-Ohio-4597, ¶27. As another appellate court explained:

A mortgage is a form of secured debt where the obligation, evidenced by a note, is secured by the transfer of an interest in property, accomplished by the delivery of a mortgage deed. Upon breach of condition of the mortgage agreement, a mortgagee has concurrent remedies. It may, at its option, sue in equity to foreclose, or sue at law directly on the note; or, bring an action in ejectment, Equity Savings & Loan v. Mercurio (1937), 24 Ohio Law Abs. 1, 2. Thus, suit on the note was not foreclosed by the disposition of the previous action in foreclosure, * * * Broadview Savings and Loan Company v. Crow (Dec. 30, 1982), 8th Dist. Nos. 44690, 44691, & 45002, at *3.

{¶22} As we explained above, BAC did not obtain an interest in the property since the mortgage it had obtained from MERS had already been foreclosed. Nevertheless, the default judgment entered against the Smiths in the 2009 foreclosure action gave BAC a judgment lien on the note, so BAC still had a right to collect its unsecured judgment lien out of the proceeds from the sale of the real estate. However, BAC’s judgment lien was not superior to those of Minster or Union Bank’s liens because BAC’s judgment on the note had not been issued until after the Smiths had executed mortgages to Minster and Union Bank. Therefore, we find that the trial court did not abuse its discretion when it recognized BAC’s judgment lien against the property in the 2008 foreclosure action and only recognized it as the fourth lienholder, because BAC’s lien was the result of the promissory note assigned from SIB, and not a result of the mortgage assigned by MERS.

{¶23} Overall, while we may not necessarily agree with all of the doctrines and rules the trial court used in reaching its decision, we nonetheless have held that “[a] judgment by the trial court which is correct, but for a different reason, will be affirmed on appeal as there is no prejudice to the appellant.” Wedemeyer v. U.S.S. F.D.R. (CV-42) Reunion Assoc., 3d Dist. No. 1-09-57, 2010-Ohio-1502, ¶50 quoting Davis v. Widman, 184 Ohio App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶16 (citations omitted). Based on our discussion above, we find that the trial court did not abuse its discretion when it denied the motion to substitute BAC as a party-defendant for MERS in the 2008 foreclosure case on the basis that BAC did not acquire any interest in the property, when it failed to rule on BAC’s Civ.R. 60(B) motion, when it partially vacated the 2009 foreclosure action, and when it allowed BAC to have a fourth priority judgment lien.

{¶24} BAC’s first, second, third, and fourth assignments of error are, therefore, overruled.

{¶25} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.

Judgments Affirmed

WILLAMOWSKI, P.J., concurs in Judgment Only.

ROGERS, J., Concurring in Part and Dissenting in Part.

{¶26} I respectfully concur in part and dissent in part from the decision of the majority.

{¶27} As to Assignment of Error No. I, I concur fully with the majority’s finding that the trial court did not err in denying BAC’s motion to substitute it as a party-defendant for MERS. I agree with the majority’s finding that, when the trial court issued a judgment entry against MERS foreclosing on its interest on March 11, 2009, MERS no longer had any viable interest in the property which it could assign to BAC on June 1, 2009. As such, I agree that, given BAC’s lack of interest in the property, the trial court was reasonable in denying BAC’s motion to substitute.

{¶28} Additionally, I wish to emphasize that the mortgage designated MERS “solely as nominee for SIB Mortgage Corp.” As expressed in my dissent in Countrywide Home Loans Servicing, L.P. v. Shifflet, et al., 3d Dist. No. 9-093-1, 2010-Ohio-1266, ¶¶18-21, I believe this language served solely to designate MERS as an agent for purposes of servicing the note and mortgage, and did not transfer to MERS any interest in the real estate or the repayment of moneys loaned. Therefore, it was never a real party in interest.

{¶29} Additionally, I believe that the majority’s finding in Assignment of Error No. I, with which I concur, is inconsistent with the remainder of the majority opinion.

{¶30} In its analysis of Assignment of Error No. II, the majority finds that the trial court did not abuse its discretion when it vacated the second foreclosure action (filed by BAC) and its default judgment because (1) BAC never obtained any interest in the property when MERS assigned to it the Smiths’ mortgage, and (2) a pending foreclosure action may be grounds for dismissal of an assignee’s complaint where the action is between the same parties. Nevertheless, the trial court did not vacate the portion of the second foreclosure action against the Smiths individually. Further, in its analysis of Assignment of Error No. II, the majority finds that the trial court did not abuse its discretion in listing BAC as the fourth priority lienholder because (1) BAC had a right to collect its unsecured judgment lien from the sale of the real estate foreclosed upon, and (2) BAC’s judgment lien was subordinate to Minster and Union Bank’s interests.

{¶31} While I agree with the majority’s conclusion that the trial court did not err in vacating portions of the second foreclosure action, I believe the trial court erred in failing to vacate the entire second foreclosure action. I find inconsistent the majority’s finding that any interest MERS had in the property was extinguished on March 11, 2009, and, thus, that it passed no viable interest to BAC, and the majority’s subsequent validation of the trial court’s finding that BAC’s default judgment and decree of foreclosure was valid against the Smiths. For the same reason, I find inconsistent the majority’s validation of the trial court’s prioritizing of BAC as the fourth lienholder in its December 2009 entry. I believe that the March 11, 2009 default judgment extinguished both the legal and equitable interests MERS, and consequently, BAC, had in the property. I would, therefore, reverse the trial court’s judgment, finding that it should have vacated the entire second foreclosure action and that it abused its discretion in recognizing BAC as a lienholder in the first foreclosure action, to which it was never a party. See, also, Fifth Third Bank v. Hopkins, 177 Ohio App.3d 114, 2008-Ohio-2959, ¶20 (Carr, P.J., concurring) (noting that, “[I]f such subsequent claims are not barred, consumers will be needlessly forced to defend numerous separate lawsuits. The ramifications could be onerous. First, to pay to defend against multiple lawsuits, debt-laden consumers might be forced to assume even greater financial burdens, taking out second or third mortgages on subsequent real estate purchases. This cycle could lead to consumers’ overextending themselves financially and facing additional subsequent foreclosure actions. Second, I believe that these subsequent lawsuits for money due, which could be resolved in conjunction with an initial foreclosure action, would clog the dockets of our trial courts”).

{¶32} I also disagree with the trial court’s application of the lis pendens doctrine, which it used to support its conclusion that BAC never obtained an interest in the property. I do not believe this is an appropriate use of lis pendens, but rather that any interest MERS had, and consequently that BAC could have obtained, was extinguished as operation of judgment.

{¶33} Finally, even if BAC had a valid assignment from a real party in interest, I would find that BAC’s foreclosure filing was barred by res judicata as argued in Union Bank’s “Motion in Contra to Plaintiff’s Motion for Default Judgment and Motion to Dismiss Plaintiff’s Complaint.” The Supreme Court of Ohio has held that “[t]he doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as * * * estoppel by judgment, and issue preclusion, also known as collateral estoppel.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-331. This Court has previously held that “[c]laim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.” Dawson v. Dawson, 3d Dist. Nos. 14-09-08, 10, 11, 12, 2009O-hio-6029, ¶36. Additionally, “[w]here a claim could have been litigated in the previous suit, claim preclusion also bars subsequent actions on that matter.” Dawson, 2009-Ohio-6029, at ¶36, citing Grava, 73 Ohio St.3d at 382. Here, Union Bank obtained a default judgment against BAC concerning the same subject matter in March 2009. Consequently, I would find BAC’s foreclosure filing in August 2009 to be barred by res judicata.

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Posted in bac home loans, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., stopforeclosurefraud.comComments (1)

LADOUCER v. BAC HOME LOANS SERVICING, LP, Dist. Court, SD Texas, Corpus Christi Div. 2010 "DO NOT BELIEVE A WORD THEY SAY"

LADOUCER v. BAC HOME LOANS SERVICING, LP, Dist. Court, SD Texas, Corpus Christi Div. 2010 "DO NOT BELIEVE A WORD THEY SAY"


Always follow your “INSTINCTS”

WILLIAM C LADOUCER, et al, Plaintiffs,
v.
BAC HOME LOANS SERVICING, LP, et al, Defendants.

Civil Action No. C-10-78.

United States District Court, S.D. Texas, Corpus Christi Division.

 April 23, 2010.

 

ORDER

 

JANIS GRAHAM JACK, District Judge.

On this day came on to be considered the Court’s sua sponte review of its subject matter jurisdiction in the above-styled action. For the reasons discussed below, the Court REMANDS this action pursuant to 28 U.S.C. § 1447(c) to the 79th Judicial District of Jim Wells, Texas, where it was originally filed and assigned Cause No. 10-02-48732-CV.

 

I. Factual and Procedural Background

In their Original Petition, Plaintiffs William C. Ladoucer and Julie A. Ladoucer allege as follows:

Plaintiffs were the owners of a home located at 271 House Avenue in Sandia, Jim Wells County, Texas and that the Defendants BAC Home Loan Servicing, LP (“BAC”) and Countrywide Home Loans, Inc. (“Countrywide”) were the respective servicer and holder of the mortgage on that property. (D.E. 1, Exh. 1 p. 2.) On December 29, 2008, Plaintiffs signed a resale contract to sell their property with a closing date set for February 27, 2009. (Id. at pp. 2-3.) Plaintiffs faxed the contract of sale to Defendant Countrywide. (Id. at p. 2.) Plaintiff Julie A. LaDoucer spoke to a representative at Countrywide’s Homeowner Retention Department to confirm receipt of the contract and was led to believe “that a foreclosure sale that the defendants had scheduled for January of 2009 was cancelled.” (Id. at pp. 2-3.) However, instead of cancelling the foreclosure, “Defendants foreclosed on the property on January 6, 2009.” (Id.) After the foreclosure, Plaintiffs claim that the potential buyers backed out of the sale and Plaintiffs “thereby lost almost $27,680.00 in equity which they would have realized from the sale of the property.” (Id. at p. 3.)

In February 2009, Plaintiffs allege that Defendants took possession of the property and changed the locks. (Id. at p. 3.) In March 2009, Plaintiffs allege that personal property had been taken from the home including a $4,500 shed that had been purchased by the Plaintiffs. (Id. at pp. 3-4.) Plaintiffs’ credit rating was also adversely affected by the foreclosure notation on their credit. (Id. at p. 4.)

Plaintiffs filed this action in state court on February 1, 2010. (D.E. 1, Exh. 1.) Defendants were served with process of February 16, 2010 and timely removed this case to federal court on March 12, 2010 on the grounds that this Court has diversity jurisdiction over this action. (D.E. 1.) Plaintiffs filed an Amended Complaint on April 23, 2010.[1] (D.E. 11.)

II. Discussion

 A. General Removal Principles

 A defendant may remove an action from state court to federal court if the federal court possesses subject matter jurisdiction over the action. 28 U.S.C. § 1441(a); see Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). A court, however, “must presume that a suit lies outside its limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). The removing party, as the party seeking the federal forum, bears the burden of showing that federal jurisdiction is proper. See Manguno, 276 F.3d at 723. “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id. When subject matter jurisdiction is improper, a court may raise the issue sua sponte. See Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008) (“We are duty-bound to examine the basis of subject matter jurisdiction sua sponte.” (citations omitted)); H&D Tire and Auto. Hardware v. Pitney Bowes Inc., 227 F.3d 326, 328 (5th Cir. 2000) (“We have a duty to raise the issue of subject matter jurisdiction sua sponte.”).

 B. Removal Based on Diversity Jurisdiction

When the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332, the removing defendant has the burden of demonstrating that there is: (1) complete diversity of citizenship; and (2) an amount-in-controversy greater than $75,000. See 28 U.S.C. § 1332(a).

 1. Diversity of Parties

 Section 1332(a) requires “complete diversity” of citizenship, and the district court cannot exercise diversity jurisdiction if one of the plaintiffs shares the same state citizenship as any one of the defendants. See Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 857 (5th Cir. 2003). In removal cases, diversity of citizenship must exist both at the time of filing in state court and at the time of removal to federal court. See Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).

 In this case, complete diversity exists because Plaintiffs are residents of Texas and Defendant BAC is a resident of North Carolina while Defendant Countrywide is a New York corporation with its principal place of business in California. (D.E. 1.)

 2. Amount in Controversy

Generally, the amount in controversy for the purposes of establishing federal jurisdiction should be determined by the plaintiff’s complaint. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938); De Aguilar v. Boeing Co., 47 F.3d 1404, 1411-12 (5th Cir. 1995). Where the plaintiff has not made a specific monetary demand, the defendant has the burden to prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount. See Manguno, 276 F.3d at 723 (“where . . . the petition does not include a specific monetary demand, [the defendant] must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000″); St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998); Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

1. This Court Lacks Diversity Jurisdiction Over This Case

 Plaintiffs do not demand over $75,000, the minimum amount of damages necessary for federal diversity jurisdiction. (D.E. 1, Exh. 1.) Rather, Plaintiffs’ Original Petition states that the foreclosure of the home itself caused only $27,680 of damages in lost equity. (Id. at 3.) Further, Plaintiffs claim that the total damages for the wrongful foreclosure, fraud, and breach of contract claims, including the above-stated $27,680 damages in lost equity, are “at least $35,000.” (D.E. 1, Exh. 1, pp. 4-5.) Plaintiffs also claim “at least $20,000″ for the exemplary damages claim, and “at least $5000″ for reasonable attorneys’ fees. (D.E. 1, Exh. 1, pp. 4-5.) In total, Plaintiffs claim only $70,000 in damages. This is less than the $75,000 required for diversity jurisdiction. 28 U.S.C. § 1332.

 Defendants, in a conclusory manner, nonetheless assert that “[t]he face of the petition . . . reveals that the amount in controversy exceeds $75,000.” (D.E. 1, p. 3.) Defendants state that under Texas law, exemplary damages “could alone result in the recovery of more than $75,000.” (Id. (emphasis added).) However, Defendants ignore that Plaintiffs’ Petition specifies only $20,000 in exemplary damages, drastically less than Defendants’ assertions. (D.E. 1, Exh. 1, p. 4.) Based on Defendants’ claims alone, this Court cannot assume that exemplary damages will be so high that they would give this Court jurisdiction. This is especially true given that “[a]ny ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)).

 Defendants have thus failed to establish that this action involves an amount in controversy of more than $75,000, exclusive of costs and interests, as required for this Court to have diversity jurisdiction over this suit pursuant to 28 U.S.C. § 1332. Therefore, Defendants have failed to meet their burden of showing that federal jurisdiction exists and that removal was proper. Frank v. Bear Stearns & Co., 128 F.3d 919, 921 (5th Cir. 1997) (“The party invoking the removal jurisdiction of federal courts bears the burden of establishing federal jurisdiction over the state court suit.”). Accordingly, this Court must remand this action pursuant to 28 U.S.C. § 1447(c). (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). See Lott v. Dutchmen Mfg., Inc., 422 F.Supp.2d 750, 752 (E.D. Tex. 2006) (citing Manguno, 276 F.3d at 723).

 III. Conclusion

 For the reasons stated above, this Court determines sua sponte that it does not have subject matter jurisdiction over the above-styled action. This case is hereby REMANDED pursuant to 28 U.S.C. § 1447(c) to the 79th Judicial District of Jim Wells, Texas, where it was originally filed and assigned Cause No. 10-02-48732-CV.

 SIGNED and ORDERED.

[1] Plaintiffs filed an Amended Complaint on April 23, 2010, however, for purpose of removal, this Court looks only to the pleadings and allegations at the time of removal. See Adair v. Lease Partners, Inc., 587 F.3d 238, 243 (5th Cir. 2009) (“[T]he power to remove is evaluated at the time of removal.”); Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995) (finding removal jurisdiction is based on complaint at the time of removal and a plaintiff cannot defeat removal by amending the complaint).

Posted in bac home loans, case, conspiracy, countrywide, foreclosure fraud, short saleComments (0)

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