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MADIGAN SUES STANDARD & POOR’S FOR ENABLING FINANCIAL MELTDOWN

MADIGAN SUES STANDARD & POOR’S FOR ENABLING FINANCIAL MELTDOWN


Lawsuit: ‘Profits Were Running the Show’ at Leading Credit Ratings Agency

Illinois Attorney General-

Attorney General Lisa Madigan today filed a lawsuit against Standard & Poor’s for its fraudulent role in assigning its highest ratings to risky mortgage-backed investments in the years leading up to the housing market crash.

Madigan filed her lawsuit today in Cook County Circuit Court, alleging that Standard & Poor’s, or S&P, compromised its independence as a ratings agency by doling out high ratings to unworthy, risky investments as a corporate strategy to increase its revenue and market share. The Attorney General’s lawsuit alleges that S&P ignored the increasing risks posed by mortgage-backed securities, instead giving the investment pools ratings that were favorable to its investment bank client base and S&P’s profits.

“Publically, S&P took every opportunity to proclaim their analyses and ratings as independent, objective and free from its desire for revenue,” Madigan said. “Yet privately, S&P abandoned its principles and instead used every trick possible to give deals high ratings in order to retain clients and generate revenue. The mortgage-backed securities that helped our market soar – and ultimately crash – could not have been purchased by most investors without S&P’s seal of approval.”

The Attorney General’s lawsuit cites numerous internal emails and conversations among S&P employees in the run up to the housing market’s crash that demonstrate the company misrepresented its ratings as objective and independent. In one such exchange, in April 2007, an online conversation via a company-based instant messenger application revealed employees discussing S&P ratings compared to the reality of risk involved, with an employee stating an investment “could be structured by cows and we would rate it.”

[ILLINOIS ATTORNEY GENERAL]

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Winnebago County, Illinois recorder still finds instances of ‘robo-signing’, Linda Green & some newcomers

Winnebago County, Illinois recorder still finds instances of ‘robo-signing’, Linda Green & some newcomers


“‘Linda Green’ is on documents as vice president of Wells Fargo. She’s (on other documents as) vice president of (Mortgage Electronic Registration Systems Inc.). She is vice president of Optical Mortgage Co. as well, and all of the signatures are completely different,” McPherson said. “Another name to take notice of is ‘Pat Kingston.’ She or he has several different titles. Lately, (the lenders or document providers) haven’t been using ‘Linda Green’ as much. There’s a new set of fake names. ‘Brian Blaine’ is the vice president of Chase Mortgage Bank. He is vice president of Washington Mutual Bank. He is vice president of Nations Credit Financial Services Corp. He’s vice president and attorney in fact for IndyMac Federal Bank.”

RRSTAR-

In late 2010, the furor over “robo-signers” revealed the complicated — and occasionally sloppy, if not entirely negligent — mountains of paperwork that accompany mortgages and the process of foreclosure.

Attorneys representing homeowners in several states uncovered the fact that many banks, or the companies the banks used to process paperwork, were authorizing documents without checking their accuracy or even giving them more than a cursory glance. In some cases, these “robo-signers” fraudulently signed the names of bank officials, attorneys and notaries.

[RRSTAR]

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DISMISSED: Illinois Judge Finds One Glitch (MERS NOMINEE), HSBC and Its Counsel Jointly Face A Fine

DISMISSED: Illinois Judge Finds One Glitch (MERS NOMINEE), HSBC and Its Counsel Jointly Face A Fine


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

HSBC BANK USA, N.A., as Trustee,
etc.,
Plaintiff,

v.

ROBERT GRAD, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

This action is part of the current cottage industry of
mortgage foreclosures that have been flooding this District Court
(like other courts around the country, no doubt). This Complaint
To Foreclose Mortgage adheres to the kind of pattern consistently
followed by the mortgagee’s counsel in the numerous cases filed
by that counsel’s office–but one glitch in the current filing
has triggered the sua sponte issuance of this memorandum opinion
and order.

As with all complaints that seek to invoke federal subject
matter jurisdiction on diversity of citizenship grounds,
Complaint ¶¶3 through 5 address the citizenship of the parties.
Those allegations are unexceptionable except as to the party
defendant referred to in this fashion in Complaint ¶5:

MORTGAGE ELECTRONIC REGISTRATION SYSTEM INC., AS A
NOMINEE FOR DHI MORTGAGE COMPANY, LTD.-is a limited
partnership organized under the laws of Texas and
having its principal place of business in Texas. The
listed partner for DHI Mortgage Company, Ltd. Is DHI
Mortgage Company GP, Inc. which is a corporation
incorporated in Texas and having its principal place of
business in Texas. MERS is its Nominee.

That clearly does not do the job, for it has been firmly
established for more than two decades (see Carden v. Arkoma
Assocs., 494 U.S. 185, 192-96 (1990)) that where a partnership
(even a limited partnership) is named as a “party” to a lawsuit,
the relevant citizenship for federal diversity purposes is that
of all partners and not merely the “listed partner” (whatever
that means). That principle has been reiterated time and again
(see such cases as Smart v. Local 702 Int’l Bhd. of Elec.
Workers, 562 F.3d 798, 803 (7th Cir. 2009), citing Carden and
Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998)).

For a good many years this Court was content simply to
identify such failures to the lawyers representing plaintiffs in
pursuance of its mandated obligation to “police subject matter
jurisdiction sua sponte” (Wernsing v. Thompson, 423 F.3d 732, 743
(7 Cir. 2005)). But there is really no excuse for counsel’s
present lack of knowledge of such a long-established principle.
Hence it seems entirely appropriate to impose a reasonable cost
by reason of counsel’s failing.

Accordingly not only the current Complaint but also this
action are dismissed (cf. Held v. Held, 137 F.3d 998, 1000 (7th
Cir. 1998)), with plaintiff and its counsel jointly obligated to
pay a fine of $350 to the District Court Clerk if an appropriate
Fed. R. Civ. P. 59(e) motion were hereafter to provide the
missing information that leads to a vacatur of this judgment of
dismissal. Because this dismissal is attributable to the lack 1
of establishment of federal subject matter jurisdiction, by
definition it is a dismissal without prejudice.

 

___________________________
Milton I. Shadur
Senior United States District Judge

Date: September 28, 2011

Footnote
________________________________________
1 That fine is equivalent to the cost of a second filing
fee, because a new action would have to be brought if the defect
identified here turns out to be curable.

[ipaper docId=67235816 access_key=key-2mhyqf9h7wws2kzww5q9 height=600 width=600 /]

 

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PHH Mortgage fined $290,000 for Incomplete and False Foreclosure Documents

PHH Mortgage fined $290,000 for Incomplete and False Foreclosure Documents


Illinois Department of Financial and Professional Regulation

For Immediate Release:

June 23, 2011

Mortgage Company fined $290,000 for Incomplete and False Foreclosure Documents

CHICAGO – PHH Mortgage Company has been fined $290,000 for signing foreclosure affidavits that the company knew would later be altered by its attorneys and for signing affidavits using someone else’s name, according to an order released today by the Illinois Department of Financial and Professional Regulation (IDFPR).  The violations were found during an ongoing special investigation of 20 Illinois licensed mortgage servicing companies, which was launched last year after learning of foreclosure improprieties across the country.

“At a time when homeowners are facing the possible loss of their most precious asset, homeowners have a right to expect their loan servicing company to file accurate and honest paperwork,” said Brent E. Adams, Secretary of Financial and Professional Regulation. “Time and again, the Department has sought to emphasize to loan servicing companies that home foreclosure is no time to cut corners.”

The order, signed by Manuel Flores, Director of IDFPR’s Division of Banking says that in at least 19 files, PHH failed to sign affidavits after they had been altered by the company’s attorneys and that PHH’s knowledge of and complicity with this process is evidenced by the fact that the original affidavits were incomplete and contained notations such as “will add” when they were tendered to the law firm of Fisher and Shapiro.  The law firm, in turn, under penalty of perjury and acting on behalf of PHH, then attested to the completeness of the altered affidavits although they had not been reviewed or re-executed by PHH.

The Department discovered other evidence of improprieties on the part of PHH employees in 16 of the 19 affidavits.  These 16 affidavits were identified as having all been signed and attested to by the same PHH employee in his or her official capacity.  Yet, the Department noted no less than five distinctly different signatures attributed to this same PHH employee, leading the Department to conclude that at least four different people used one employee’s name to sign the affidavits.  PHH has ten days to request a hearing on the Department’s order.

In December 2010, Department issued a 9-point “affidavit preparation expectations” plan establishing best practices for the handling of foreclosure-related documents.   Under the Department’s order, PHH has violated both the Residential Mortgage License Act of 1987 and these best practices established, publicized, and agreed to by several loan servicers late last year.
The 9-point plan:

  1. Affiants who sign affidavits in connection with foreclosure proceedings shall not use signature stamps to sign affidavits.
  2. Affiants signing affidavits stating the amount owed by a borrower (hereinafter “prove-up affidavits”) shall confirm that the numbers accurately reflect the numbers in the licensee’s business records and are totaled correctly.
  3. Affiants shall be individuals, not entities.
  4. Affiants shall have the level of knowledge necessary to submit an affidavit in a judicial proceeding.
  5. Lenders and servicers shall have processes in place to seek to ensure that affidavits used in connection with foreclosure proceedings are true, accurate, and complete, including that prove-up affidavits accurately reflect the amount due to the licensee.
  6. To the extent that an affidavit is notarized, it shall be done in compliance with the law of the state in which the affidavit is being notarized, which generally requires that the affidavit be executed in the presence of the notary after the notary has administered the oath and that the notary appropriately dates the prove-up affidavit.
  7. When using a form affidavit, Affiants shall not leave blanks or incomplete statements in the affidavit. Affiants shall date their signatures by hand on affidavits.
  8. When the Affiant’s signature is not plainly legible, the name of the Affiant shall be printed on the affidavit in order to permit the identity of the Affiant to be known.
  9. Lenders and servicers shall not file unsigned affidavits with the court.

Homeowners facing foreclosure and/or who have concerns or questions about the process may contact IDFPR’s mortgage hotline (800) 532-8785 (800) 532-8785

Source: http://www.idfpr.com

[ipaper docId=58576332 access_key=key-2l0e2bulon3waf9eo7sl height=600 width=600 /]

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Banks Will Be Sued If Foreclosure Practices Talks Collapse, Two States Say

Banks Will Be Sued If Foreclosure Practices Talks Collapse, Two States Say


Wonder what AG Madigan means by “RESOURCES”. Betcha it’s lots & lots O’documents!

BLOOMBERG-

Two state attorneys general who are among those leading negotiations with the five largest U.S. mortgage servicers over their foreclosure practices said the banks would be sued if a settlement isn’t reached.

Illinois Attorney General Lisa Madigan and North Carolina Attorney General Roy Cooper threatened litigation if settlement talks with the companies, including Bank of America Corp. (BAC) and JPMorgan Chase & Co. (JPM), break down.

Continue reading [BLOOMBERG]

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New York State Attorney General Eric Schneiderman Probing Lender Processing Services, Nationwide Title Clearing

New York State Attorney General Eric Schneiderman Probing Lender Processing Services, Nationwide Title Clearing


Just last week Chicago AG Lisa Madigan announced she was probing them as well. Note: some mistakenly say “National” instead of “Nationwide” below…

NY POST-


Indeed, New York State Attorney General Eric Schneiderman recently said that his office is probing mortgage processing firm Lender Processing Services and National Title Clearing.

Schneiderman also launched a probe into the mortgage securitization practices of major investment banks Goldman Sachs, Morgan Stanley, Deutsche Bank and UBS.


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MADIGAN ISSUES SUBPOENAS TO LPS, NationWide Title Clearing ; WIDENS ‘ROBOSIGNING’ PROBE

MADIGAN ISSUES SUBPOENAS TO LPS, NationWide Title Clearing ; WIDENS ‘ROBOSIGNING’ PROBE


Chicago — Attorney General Lisa Madigan today expanded her investigation into “robosigning” practices, issuing subpoenas against two national mortgage servicing support providers. The subpoenas are the latest effort in Madigan’s ongoing probe into the fraudulent practices used by banks and other mortgage institutions that contributed to the collapse of the U.S. housing market and the subsequent global financial crisis.

Madigan issued subpoenas against Lender Processing Services Inc. and Nationwide Title Clearing Inc., two Florida-based corporations that provide “document preparation services” and other loan management services to mortgage lenders for use against borrowers who are in default, foreclosure or bankruptcy.

“Foreclosure became a rubber-stamping operation that robbed many homeowners of the American Dream without a fair and accurate process,” Attorney General Madigan said. “I will not relent in my investigation into the fraudulent practices by lenders and others that caused and exacerbated the mortgage crisis and the resulting massive foreclosure crisis.”

Lender Processing Services (LPS) provides loan servicing support for more than 50 percent of all U.S. mortgages. More than 80 financial institutions use LPS to service more than 30 million loans. These loans have an outstanding principal balance exceeding $4.5 trillion.

Nationwide Title Clearing (NTC) provides a range of mortgage loan services to eight of the top 10 lenders and mortgage servicers in the country. NTC specializes in creating, processing and recording mortgage assignments, which are often needed for a lender to foreclose on a borrower.

Madigan will investigate reported allegations that LPS and NTC engaged in the practice of “robosigning” legal documents filed with the court to foreclose on borrowers. Robosigning occurs when an individual has no knowledge of the information contained in the document and often doesn’t even read or understand the document that he or she is signing. The use of robosigned documents was pervasive as lenders foreclosed on borrowers’ homes. The probe will also include a complete review of the accuracy of the systems and services that LPS and NTC provide to the large lenders including servicing platforms, foreclosure attorney interaction with these platforms and the assignment of mortgage process.

Attorney General Madigan said former employees of LPS, NTC, or former employees of any residential mortgage servicer or bank who have knowledge of any unlawful practices relating to mortgage servicing or the execution of documents should call her Homeowner Helpline at 1-866-544-7151 to aid in the investigation.

-30-

[Source: http://illinoisattorneygeneral.gov]

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The Case of TWO (2) Allonges To Note, Saxon Cannot Explain | INGRID BERG v. eHome Credit

The Case of TWO (2) Allonges To Note, Saxon Cannot Explain | INGRID BERG v. eHome Credit


via Matt Weidner

INGRID BERG, Plaintiff,
v.
eHOME CREDIT CORP., a New York corporation; SAXON MORTGAGE SERVICES INC., Defendants.

No. 08 C 05530.

United States District Court, N.D. Illinois, Eastern Division.

February 25, 2011.


MEMORANDUM OPINION AND ORDER

SHARON JOHNSON COLEMAN, Judge.

This matter comes before the Court on plaintiff Ingrid Berg’s Motion to Dismiss defendant Saxon Mortgage Services Inc.’s Counterclaim pursuant to Rule 12(b)(1) for lack of standing [46] [49]. For the reasons that follow, the motion is denied.

Background

Plaintiff and her husband, Stanley Berg, purchased a property in Highland Park, Illinois, in 2001. The Bergs financed the purchase of the property with a mortgage originally held by eHome Credit Corporation (“eHome Mortgage”). In 2005, Stanley Berg filed for bankruptcy. Ingrid Berg did not file for bankruptcy. The bankruptcy court ruled that the trustee of Stanley Berg’s bankruptcy estate could avoid the eHome Mortgage as to Stanley Berg’s half-interest in the property, but it had no jurisdiction over the half-interest owned by Ingrid Berg. The bankruptcy court further ruled that the trustee could sell the property and Ingrid Berg’s share of the proceeds would be subject to valid liens, and that the trustee could deposit the proceeds with a neutral custodian during the adjudication of any liens.

Ingrid Berg filed this lawsuit seeking a declaratory judgment that her interest in the property is not encumbered by the eHome Mortgage. Defendant eHome Credit Corp. has not filed an appearance in this action. Saxon Mortgage Services, Inc. (“Saxon”), who asserts that it is the servicer of the eHome Mortgage for FV-1, Inc. (“FV-1″), was granted leave to intervene as a defendant. FV-1 purports to be the current holder of the eHome Mortgage and note. Saxon filed an answer and counterclaim seeking a declaratory judgment that the eHome Mortgage is the senior lien on the proceeds from the sale of Ingrid Berg’s half-interest in the property.

Legal Standard

The present challenge relates to standing and this Court’s jurisdiction over the matter. The requirements of standing are: (1) an injury in fact; (2) causation; and (3) redressibility. See, e.g., RK Co. v. See, 622 F. 3d 846, 851 (7th Cir. 2010). When deciding a motion to dismiss the Court accepts well-pleaded allegations of the complaint as true, (Tamayo v. Blagojevich, 526 F. 3d 1074, 1081 (7th Cir. 2008)), and draws all reasonable inferences in favor of the nonmoving party. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). On Rule 12(b)(1) motions, the court may consider material outside the pleadings. See United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003).

Discussion

Plaintiff moves to dismiss defendant Saxon’s counterclaim, asserting that Saxon has no standing to assert the counterclaim because only the entity entitled to enforce the note may bring a complaint to foreclose the mortgage against the mortgagor. See Bayview Loan Servicing v. Nelson, 382 Ill. App. 3d 1184, 1187-88 (2008). Saxon responds that it is an entity entitled to enforce the note because FV-1 is the holder of the note and the mortgage and FV-1 authorized Saxon, as its servicer, to enforce the note on its behalf.

Here, it is undisputed that the eHome mortgage and note were transferred once by an allonge to Option One Mortgage Corporation (“Option One”) on July 16, 2004. Saxon further asserts that Option One then indorsed the note in blank by an allonge, and that FV-1 is in possession of the original mortgage and note with the allonge indorsed in blank.

Saxon attached as exhibits to its response, the original note (Exhibit A, Dkt. # 53-1), the allonge to the promissory note indorsing the note to Option One on July 16, 2004 (Exhibit B, Dkt. # 53-2), the allonge to the note indorsed in blank by Option One (Exhibit C, Dkt. # 53-3 ), a declaration under penalty of perjury signed by Roger Perlstadt, attorney for Saxon, averring that Saxon has provided the law firm with the original note and indorsements relating to the loan secured by the mortgage on the property at 2205 Kipling Lane in Highland Park, Illinois (Exhibit D, Dkt. # 53-4), and the “Limited Power of Attorney” authorizing Saxon to enforce any of the mortgages/notes that it services on behalf of FV-1 (Exhibit E, Dkt. # 53-5).

Under Illinois law, when an instrument is indorsed in blank it becomes payable to the bearer. 810 ILCS 5/3-205(b) (West 2010). The person in possession of an instrument payable to the bearer is the “holder” of that instrument, 810 ILCS 5/1-201(b)(21)(A) (West 2010), and the “holder”of an instrument is entitled to enforce it. 810 ILCS 5/3-301 (West 2010). Here, the counterclaim alleges that FV-1 is the current holder of the note secured by the eHome Mortgage, and that Saxon has the authority to enforce the note on FV-1’s behalf. It alleges that FV-1 obtained the note through various transfers or assignments. The documents attached as exhibits support Saxon’s assertions that FV-1 is the holder of the note and that Saxon has the authority to act on FV-1’s behalf to enforce the note. Proof of possession is essential for standing to enforce payment on an instrument. Locks v. North Towne Nat’l Bank, 115 Ill. App. 3d 729, 71 Ill. Dec. 531, 451 N.E.2d 19 (2 Dist. 1983). It is undisputed that the note in Saxon’s possession that it presented to the Court is the original. At issue here is the validity of the allonges purporting to indorse the note from eHome Credit Corp to Option One and from Option One to blank payable to bearer.

Plaintiff argues that the allonge presented by Saxon, purporting to be the allonge transferring the note from eHome Credit Corp to Option One is a different allonge than the one presented by eHome in the bankruptcy proceedings. Indeed, the allonge that plaintiff attached to her motion to dismiss that purports to transfer the note from eHome Credit Corp to Option One (Exhibit F, Dkt. # 46-7) appears to be different from the one presented by Saxon. The Court directed Saxon to produce for the Court the original note and the allonges purporting to transfer the note; first from eHome Credit Corp. to Option One and then from Option One to blank. Saxon could provide no explanation for the two different allonges indorsing the note from eHome Credit Corp to Option One. Despite a difference in appearance, the two allonges purport to make the same indorsement and transfer.

Plaintiff further asserts that this Court should adopt a rule that an allonge is not an effective means of indorsement unless there is no space on the note itself to write the indorsement. Plaintiff relies on Brown [Fountain] v. Bookstaver, 141 Ill. 461 (1892), in which the Illinois Supreme Court stated: “Generally, an assignment of a negotiable instrument must be indorsed on the instrument, viz., written on the back of it, that being the meaning of the word >indorsement.’ If, however, by reason of the number of indorsements, the back of the instrument is so covered as to make it necessary, `an extra piece of paper may be tacked or pasted on the instrument, and all future indorsements may be written on the attached paper.” Id. at 465.

[ipaper docId=55509387 access_key=key-fknvspsz0luv2ft6ed4 height=600 width=600 /]

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Cook Co., IL, Sheriff Tom Dart says he’s opened criminal investigations of “robo-signing” foreclosure documents

Cook Co., IL, Sheriff Tom Dart says he’s opened criminal investigations of “robo-signing” foreclosure documents


“Words can’t describe what a mess this is.”

Sheriff Dart goes to a home to serve eviction papers only to witness the house is gone and the foundation is overgrown with bushes because the house has been missing for so many years. This is what got him curious as to the accuracy of foreclosures.

Why was he cut off?

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ILLINOIS Judge Not Clear, “Discovery IS Necessary On Rescission Claims” STEWART v. BAC, DEUTSCHE BANK, MERS

ILLINOIS Judge Not Clear, “Discovery IS Necessary On Rescission Claims” STEWART v. BAC, DEUTSCHE BANK, MERS


ELLIE STEWART, Plaintiff,
v.
BAC HOME LOANS SERVICING, LP, DEUTSCHE BANK NATIONAL TRUST CO., and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendants.

Case No. 10 C 2033.

United States District Court, N.D. Illinois, Eastern Division.

March 10, 2011.

MEMORANDUM OPINION AND ORDER

VIRGINIA M. KENDALL, District Judge.

On April 1, 2010, plaintiff Ellie Stewart (“Stewart”) filed the current complaint against Defendants BAC Home Loans Servicing (“BAC”), Deutsche Bank National Trust Company (“Deutsche Bank”) and Mortgage Electronic Registration Systems (“MERS”) (together, “Defendants”) alleging violations of the Truth In Lending Act (“TILA”) (15 U.S.C. §§ 1601-1667f) and its implementing regulation, 12 C.F.R. § 226 (“Regulation Z”), and demanded rescission of the mortgage on her residence.

Defendants moved to dismiss the Complaint, asserting BAC and MERS are improper defendants under TILA, the Complaint is time-barred and the Complaint fails to state a claim. For the reasons stated below, Defendants’ motion is granted in part and denied in part. The Court dismisses Stewart’s failure to disclose claim because it is untimely, but denies dismissal of Stewart’s rescission claim. The motion to dismiss is denied with regard to the failure to honor rescission claim against defendants Deutsche Bank and BAC.

I. BACKGROUND

A. Complaint Allegations.

Stewart owns her residence in Chicago, Illinois. (Compl., Doc. 1, ¶ 4.) On October 24, 2006, Stewart refinanced her mortgage on this residence through Home 123 Corporation (“Home 123″). (Compl. ¶¶ 5-8, 10.) Home 123 filed for Chapter 11 bankruptcy in April 2007 and Deutsche Bank is the current assignee of this loan. (Compl. ¶¶ 5, 8, 21.) BAC services this loan and MERS is the nominee. (Compl. ¶¶ 7-9; Ex. C.)

This case stems from a dispute concerning the documentation provided at the closing of Stewart’s refinance back in 2006. Stewart alleges that Home 123 violated TILA twice in regards to these documents. First, she claims that Home 123 did not provide her with a copy of the Notice of Right to Cancel (“NORTC”). (Compl. ¶¶ 19-20.) Second, she claims that Home 123 provided a Truth in Lending Disclosure Statement (“TILDS”) that was incomplete because it did not include the timing of the required loan payments. (Compl. ¶¶ 17-18.)

Due to these deficiencies, on October 14, 2009, Stewart’s attorneys sent a letter entitled “Notice of Rescission and Lien” to Home 123 and BAC. (Compl. ¶ 23.) The letter stated that “Ms. Stewart hereby elects to cancel the loan of October 24, 2006 for failure to comply with the Truth In Lending Act,” and specified that Home 123 failed to provide the NORTC and a complete TILDS. (See Doc. 23-1.) The letter also demanded the identity of the owner of the mortgage. (Id.) On January 26, 2010, BAC sent a letter to Stewart which denied her rescission claim. (See Doc. 23-2.) BAC asserted that Stewart’s right to rescind had expired and attached copies of the NORTC and TILDS purportedly signed by Stewart and dated October 24, 2006. (Id.)

B. Procedural History.

On April 1, 2010, Stewart filed this suit and it was assigned to Judge Harry Leinenweber. Defendants filed the present motion to dismiss on August 11 and briefing was completed on October 5. On October 28, Judge Leinenweber requested that the parties provide a copy of Stewart’s rescission letter and submit a supplemental brief addressing whether Stewart’s election to rescind constituted proper notice to Deutsche Bank as assignee of Home 123. Supplemental briefing was completed on November 8. The case was transferred to this Court on December 8.

II. LEGAL STANDARD

A motion to dismiss should be granted if the complaint fails to satisfy Rule 8’s pleading requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Tamayo v. Blagojevich, 536 F.3d 1074, 1081 (7th Cir. 2008) (holding well-leaded allegation of the complaint must be accepted as true).

Although a complaint does not need detailed factual allegations, it must provide the grounds of the claimant’s entitlement to relief, contain more than labels, conclusions, or formulaic recitations of the elements of a cause of action, and allege enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. Legal conclusions can provide a complaint’s framework, but unless well-pleaded factual allegations move the claims from conceivable to plausible, they are insufficient to state a claim. Iqbal, 129 S. Ct. at 1950-51.

III. DISCUSSION

The complaint has three core claims. First, Stewart claims that Home 123 violated TILA by failing to provide her with the NORTC and a complete TILDS. For this “failure to disclose” claim, Stewart seeks statutory damages of $4,000 from Deutsche Bank as Home 123’s assignee. (Doc. 1, Prayer for Relief.) Second, Stewart seeks recession of the loan based on this disclosure violation. For this “loan rescission” claim, Stewart seeks a judgment forcing Defendants to void the loan and return her to the position she occupied before entering into the mortgage. (Id.) Third, Stewart alleges that Defendants failed to honor her election to rescind, which is itself a violation of TILA. For this “failure to honor rescission” claim, Stewart seeks actual damages and statutory damages of $4,000 from Defendants. As an additional remedy for all three claims, Stewart seeks an order requiring Defendants to delete all adverse credit information relating to the loan. (Id.)

The present motion presents four legal issues that need to be resolved to determine which, if any, of these three claims may stand. First, Defendants seek to dismiss BAC and MERS, asserting that servicers and nominees are improper defendants in a TILA action. Turning to Stewart’s individual claims, Defendants argue that the failure to disclose claim is barred by a one year statute of limitations because the alleged violation occurred over three years ago. Next, Defendants assert that the rescission claim is barred by a three-year statute of repose because the loan closed on October 24, 2006 but this suit was not filed until April 1, 2010. Finally, Defendants argue that the failure to honor rescission claim fails because assignees are not liable for TILA violations which are not apparent on the face of the loan disclosures.

A. Liability of MERS and BAC Under TILA.

Only creditors and assignees are subject to liability under TILA. See 15 U.S.C. §§ 1640, 1641(a). Stewart acknowledges that MERS is not a creditor or assignee. (See Doc. 15 at 4).[1] Therefore, MERS is not subject to damages under TILA and Stewarts’ failure to disclose and failure to honor rescission damages claims against MERS are dismissed. See 15 U.S.C. §§ 1640, 1641(a); see also Horton v. Country Mortg. Servs., Inc., No. 07 C 6530, 2010 U.S. Dist. LEXIS 67, at *3 (N.D. Ill. Jan 4, 2010) (granting summary judgment to MERS because the plaintiff provided no evidence that MERS was a creditor or assignee). Stewart claims MERS is still a proper party based on the non-monetary relief requested in connection with the rescission. Stewart seeks an order “voiding” her mortgage, (see Doc. 1 at Prayer) and, according to her, “this Court may directly order MERS to record a release or take other actions in connection with the mortgage document that was recorded.” (Doc. 15 at 4.)

The Court notes that courts in this District are split on whether such a party, usually a servicer, may be kept in a case based on such contingent, or future, relief. Compare Miranda v. Universal Fin. Grp., Inc., 459 F. Supp. 2d 760, 765-66 (N.D. Ill. 2006) (denying dismissal of loan servicer as an indispensable party under Rule 19 because a rescission would require return of payments made on the loan and “could impair the borrower’s ability to fully protect his or her interest in rescinding the loan because the servicer could improperly report to credit bureaus”) with Bills v. BNC Mort., Inc., 502 F. Supp. 2d 773, 776 (N.D. Ill. 2007) (finding “a concern that [the servicer] might thereafter engage in improper reporting to the credit agencies or attempt to foreclose on a rescinded loan is purely speculative and does not warrant retaining [the servicer] as a defendant”). The Court agrees with Miranda and the cases it cites because they appear more consistent with the Seventh Circuit’s holding in Handy v. Anchor Mortgage Corporation, 464 F.3d 760, 765-66 (7th Cir. 2006). There, the Seventh Circuit held “more generally . . . the right to rescission `encompasses a right to return to the status quo that existed before the loan.'” Id. (internal citation omitted). Handy makes clear that rescission under TILA entirely unwinds the transaction. Because Stewart alleges, albeit generally, that MERS may be necessary to get her back to that status quo if her rescission is enforced by the Court, MERS cannot be dismissed entirely at this time. Rather, Stewart’s rescission claim stands as to MERS.

As to defendant BAC, TILA expressly disclaims liability for servicers “unless the servicer is or was the owner of the obligation.” 15 U.S.C. § 1641(f)(1). Stewart alleges that BAC “has an interest” in the loan and, as a result, is subject to liability. (Compl. ¶ 7.) While Stewart does not provide any specifics on how a loan servicer gained an interest in the loan, on a motion to dismiss, the Court must accept this allegation as true. See Tamayo, 526 F.3d at 1081. Even if the Court could ignore this allegation, BAC must remain a defendant in any event. The pleadings reveal that the January 26 letter refusing Stewart’s rescission was sent by BAC, not Deutsche Bank. BAC is a necessary defendant on the failure to honor rescission claim because it is not clear whether BAC independently refused rescission, refused as an agent of Deutsche Bank, or merely communicated Deutsche Bank’s refusal. As such, BAC cannot be dismissed outright as it may be liable on this claim.

B. Failure to Disclose Claims.

Stewart asserts that Home 123 committed two disclosure violations during the refinance closing: (1) it failed to provide two copies of the NORTC and (2) it failed to provide a complete TILDS. Although this claim alleges violations by Home 123, the claim is currently against Deutsche Bank based on its status as the assignee of Home 123. TILA permits an individual to assert a claim against a creditor for disclosure violations so long as such action is brought within one year from the occurrence of the violation. See 15 U.S.C. §§ 1640(a), 1640(e); see also Garcia v. HSBC Bank USA, N.A., No. 09 C 1369, 2009 U.S. Dist. LEXIS 114299, at *9-10 (N.D. Ill. Dec. 7, 2009) (finding the § 1635’s three year period for rescission does not extend the one-year period available under § 1640(e) to assert damages claims for disclosure violations and noting that the majority of courts in this District have found “affirmative damage claims for disclosure violations must be brought within one year of the closing of any credit transaction”). Stewart filed this claim on April 1, 2010, over three years after the October 24, 2006 loan closing and well past the one year statute of limitations. Stewart’s failure to disclose claim is time-barred and dismissed with prejudice against all defendants.

C. Loan Rescission Claim.

The next issue in this case is whether Stewart is time-barred from seeking rescission in court. “Under the Truth in Lending Act, [] 15 U.S.C. § 1601 et seq., when a loan made in a consumer credit transaction is secured by the borrower’s principal dwelling, the borrower may rescind the loan agreement” under certain conditions. Beach v. Ocwen Fed. Bank, 523 U.S. 410, 411 (1998). A borrower typically has three days to rescind following execution of the transaction or delivery of the required disclosures. See 15 U.S.C. § 1635(a). However, under § 1635(f) of TILA, the right of rescission is extended to “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first,” if any of the required disclosures are not delivered to the borrower. See 15 U.S.C. § 1635(f). Stewart alleges that she did not receive the required disclosures, so this case involves the extended three year period. Here, the loan transaction occurred on October 24, 2006; Stewart sent a letter electing to rescind the transaction on October 14, 2009, and then filed her complaint in court on April 1, 2010. This time line presents the legal question of whether a claim for rescission filed after the three-year time period is timely if a rescission letter is sent within the three-year time period.

Stewart argues that she exercised her right to rescind within the three years, as required by § 1635(f), because her letter actually rescinded the loan. According to Stewart, this suit is just the legal remedy to force Defendants to accept her rescission. Stewart argues that she is entitled to an additional year after Defendants’ failure to accept the rescission to file suit under § 1640(e). Defendants argue that the language of § 1635(f) creates a statute of repose that completely extinguishes the right to rescind after the three year-time period. As Stewart filed suit over three years after the closing, Defendants assert that Stewart’s recession claim under TILA is barred.

Both parties cite authority for their respective positions from many different jurisdictions. E.g., compare Falcocchia v. Saxon Mortg., Inc., 709 F. Supp. 2d 860, 868 (E.D. Cal. 2010), with Sherzer v. Homestar Mortg. Servs., No. 07-5040, 2010 WL 1947042, at *11 (E.D. Pa. July 1, 2010); see also Obi v. Chase Home Fin., LLC, No. 10-C-5747, 2011 WL 529481, *4 (N.D. Ill. Feb. 8, 2011) (Kendall, J.) (noting “[t]here is a split of authority as to whether § 1635(f) requires a borrower to file a rescission claim within three years after the consummation of a transaction or whether the borrower need only assert his right to rescind to a creditor within that three year period” and collecting cases.) Stewart’s authority concludes that a borrower exercises her right of rescission when she mails a notice of rescission to the creditor, so rescission occurs at the time of the letter. See 12 C.F.R. § 226.23(a)(2). Defendants’ authority, on the other hand, holds that a borrower cannot unilaterally rescind a loan, and therefore can only preserve her rights by filing a suit for rescission within the three-year time period. The Seventh Circuit has not yet addressed this issue so this Court has no binding guidance.

As the Court indicated in Obi (albeit in dicta), the Court is persuaded by the authority finding that a borrower may assert his rescission rights under § 1635(f) through notice to the creditor. See Obi, 2011 WL 529481 at *4; see also In re Hunter, 400 B.R. 651, 661-62 (N.D. Ill. 2009) (finding “[t]he three-year period limits only the consumer’s right to rescind, not the consumer’s right to seek judicial enforcement of the rescission” (internal citation omitted)). The approach in Hunter is more consistent with the language of § 1635 and Regulation Z than the approach advocated by Defendants. Section (a)(2) of Regulation Z provides explicit instructions to the consumer as to how to exercise her right to rescind: “[t]o exercise the right to rescind, the consumer shall notify the creditor of rescission by mail, telegram, or other means of written communication.” See 12 C.F.R. § 226.23(a)(2). The next provision of Regulation Z, § (a)(3), describes when a consumer may exercise that right: either within the three-day “cool off” period, if all proper disclosures are made, or within the three-year period, if they are not. See 12 C.F.R. § 226.23(a)(3). The more reasonable interpretation of Regulation Z is that § (2)(a)’s method of exercising the right to rescission applies to both scenarios under § (3)(a). Indeed, this approach is consistent with the wording of the statute. Even if a consumer received all necessary disclosures, § 1635(a) allows a consumer to rescind within the three-day “cool off” period after closing “by notifying the creditor, in accordance with regulations of the [Federal Reserve Board (“FSB”)], of his intention to do so.” 15 U.S.C. § 1635(a). Though § 1635(f) has no comparable reference to the FSB regulations, it seems incongruous for the FSB to allow rescission via letter during the “cool off” period—in accordance with Regulation Z—but require a consumer to bring a suit to exercise that same right to rescind under § 1635(f).

The Court’s approach is not inconsistent with Beach. In that case, the Supreme Court found a defendant could not assert rescission as an affirmative defense under TILA beyond the three-year period. See Beach, 523 U.S. at 418. The Court noted that § 1635(f) “says nothing in terms of bringing an action but instead provides that the `right of rescission [under TILA] shall expire’ at the end of the time period . . . it talks not of a suit’s commencement but of a right’s duration . . . .” Id. at 417. Beach addresses when the right to rescind expires and whether it can be tolled. It leaves unresolved the question of how a consumer must exercise that right to rescind — suit, or notice via letter.

The Court turns to the question of when a consumer, having exercised her right to rescind by sending a letter to her creditor, must bring suit to enforce that exercise. In Hunter, the debtor, like Stewart, sent notice to the creditor before the three-year period expired, but his trustee filed suit after expiration. Hunter, 400 B.R. at 659. As Stewart did here, the trustee brought suit within a year after the creditor allegedly failed to respond to the rescission notice. Id. Hunter,Id.; seeHunter approach. Under this approach, the last day a borrower may send notice to rescind is the three-year anniversary of the transaction. If the borrower has not sent notice by that time, her right to rescind expires under § 1636(f). If the borrower sends timely notice, the creditor then would have 20 days to respond after receipt of that notice. See 15 U.S.C. § 1635(b). The borrower then has one year from the end of that 20-day period to bring a suit to enforce the rescission under § 1640(e)’s limitations period. citing the one-year limitations period in § 1640(e), found that the trustee’s action for rescission was timely, as it was brought within a year of the alleged violation of TILA, namely the refusal to respond to the rescission request. 15 U.S.C. 1635(b) (requiring a creditor to “take any action necessary or appropriate to reflect the termination of any security interest created under the transaction”). The Court adopts the Hunter, 400 B.R. at 660-61, see also Johnson v. Long Beach Mort. Loan Trust 2001-4, 451 F. Supp. 2d 16, 39-41 (D.D.C. 2006) (applying § 1640(e)’s one year period to enforce rescission claim after notice); Sherzer, 2010 WL 1947042, at *11 (following Hunter). This approach balances the creditor’s need for certainty (the borrower cannot indefinitely fail to bring suit to enforce the right to rescind she exercised) with the express language of Regulation Z (which states that a borrower may exercise the right to rescind through notice by mail). Because Stewart brought suit within five months of her recession notice, Stewart’s claim for recession is timely.

D. Failure to Honor Rescission Claim.

A claim for damages for failure to honor rescission is based on § 1635(b) of TILA, which requires a creditor to respond to a notice of rescission within twenty days of receipt. If a creditor does not respond within the statutorily-mandated period, TILA permits an individual to bring a claim for damages against the creditor. 15 U.S.C. § 1640(a). An action for damages must be brought “within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). An assignee’s failure to honor a valid rescission notice made pursuant to § 1635 may subject the assignee to actual and statutory damages. 15 U.S.C. § 1640(a).

Stewart asserts that she did not receive a NORTC or a complete TILDS as required by TILA, so she had a right to rescind her loan. Specifically, the TILDS does not state the timing of payments, as Regulation Z requires. See 12 C.F.R. § 226.18. Defendants respond that they were not the original creditor, and as assignees (at best), they are only required to rescind if the violations were apparent on the face of the documentation and that they were not in this case. See 15 U.S.C. § 1641(a) (assignee is only liable if the violation “is apparent on the face of the disclosure statement”).

The Seventh Circuit has specifically addressed the requirements for the payment schedule in the TILDS. In Hamm, the TILDS listed the payment schedule as 359 payments of $541.92 beginning on March 1, 2002 and one payment of $536.01 on February 1, 2032. Hamm v. Ameriquest Mortg. Co., 506 F.3d 525, 527 (7th Cir. 2007). The court found that this violated TILA because it did not list all payment dates or state that payments were to be made monthly, and TILA requires such specificity in the TILDS even though “many (or most) borrowers would understand that a mortgage with 360 payments due over approximately 30 years contemplates a payment by the borrower each month during those 30 years.” Id. This case is no different. Stewart alleges that her TILDS listed 359 payments at $3,103.53 but failed to mention that these payments would be made monthly. Exhibit A of Stewart’s complaint, her TILDS, shows the incomplete payment schedule on the face of the document. That schedule is almost exactly the same as the one the Seventh Circuit found insufficient in Hamm. Id. at 527. Consequently, Stewart alleges a disclosure violation apparent on the face of the documents which would grant Stewart the right to rescind against Defendants as assignees. Stewart’s NORTC claim does not need to be evaluated at this time because her failure to honor rescission claim could be based on either a NORTC or TILDS violation, and the TILDS allegations stand.

The final issue is whether Defendants are responsible for refusing to respond and for rejecting rescission. This turns on whether Stewart’s notice of rescission was properly sent to Defendants. In response to a request from Judge Leinenweber prior to reassignment of this case to this Court, the parties addressed whether Stewart properly noticed defendant Deutsche Bank of her election to rescind when she sent letters to only BAC and Home 123, which filed for Chapter 11 bankruptcy in 2007. Courts within the District have reached different conclusions under similar factual scenarios. Compare Harris v. OSI Fin. Servs. Inc., 595 F. Supp. 2d 885, 897-98 (N.D. Ill. 2009) (finding that notice of election to rescind sent to the original creditor did not suffice as notice to the assignee), with Hubbard v. Ameriquest Mortg. Co., 624 F. Supp. 2d 913, 921-22 (N.D. Ill. 2008) (concluding that an election to rescind sent to the original creditor is sufficient to seek rescission against an assignee) and Schmit v. Bank United FSB et al., No. 08 C 4575, 2009 WL 320490, at *3 (N.D. Ill. Feb. 6, 2009) (acknowledging disagreement between Harris and Hubbard and following Hubbard).

Stewart acknowledges that she did not send a notice of rescission to defendant Deutsche Bank. (See Doc. 23-1.) She alleges that she, like many borrowers, was unaware who owned her mortgage note. She did not know that Deutsche Bank was the assignee of her loan, and so she requested notice of the “identity of the owner of this note” from Home 123 and BAC in her rescission letter. (Id.) Stewart argues that she complied with TILA and Regulation Z by mailing notice to the original creditor, Home 123, and the loan servicer, BAC. Stewart distinguishes Harris from the current case because “there is no mention of whether the consumer in Harris mailed a notice to the loan servicer or another party who may be the agent of the holder of the note.” (Doc. 23 at 4). Deutsche Bank concurs that mortgage ownership changes make communication difficult, but suggests that this actually supports the approach of the Harris court. Harris noted that “adopting Stewart’s interpretation of the notice requirement . . . would have the absurd effect of subjecting to rescission and damages assignees that, in some case, have absolutely no means of discovering that a rescission demand has been made.” (Doc. 22 at 2 (quoting Harris).)

The split between Harris and Hubbard does not need to be resolved at this stage of litigation due to the particular facts of this case. Stewart alleges that she sent BAC the rescission notice on October 14, 2009, ten days before the three-year deadline. BAC denied the rescission in a letter sent to Stewart on January 26, 2010. While Harris was concerned that an innocent party with no notice could be subject to damages, this case involves clear notice to at least one party that Stewart seeks to hold responsible. BAC received notice, did not respond within 20 days, and then refused to rescind the transaction. Deutsche Bank’s involvement is less clear, but Stewart alleged sufficient facts to proceed with her case under the theory that BAC either forwarded the notice to Deutsche Bank or acted as its agent in the transaction. This is a reasonable inference given that BAC, the loan servicer, actually responded to the rescission notice and refused it without referring to whether the assignee, Deutsche Bank, assented to the decision. BAC, Deutsche Bank, or both refused to rescind the transaction and discovery is necessary to sort out who is responsible for the decision to deny the rescission.

IV. CONCLUSION

For the reasons stated herein, Defendants’ motion to dismiss (Doc. 10) is:

1. Granted as to Stewart’s failure to disclose claim against all Defendants;

2. Denied as to Stewart’s rescission claim against all Defendants; and

3. Denied as to Stewart’s failure to honor rescission claim against defendants Deutsche Bank and BAC, but granted as to defendant MERS.

SO ORDERED.

[1] The Court also notes that the mortgage instrument attached to the complaint identifies MERS as “a separate corporation that is acting solely as a nominee for Lender and Lender’s assigns.” (See Doc. 1, Ex. C at 1.) Though Stewart alleges MERS has an interest in the loan (see Compl. ¶ 7), the exhibits contradict that pleading and the exhibits control. See N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 454 (7th Cir. 1998).

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IL Appeals Court Vacates Judgment, Quash Service of Summons

IL Appeals Court Vacates Judgment, Quash Service of Summons


LASALLE BANK NATIONAL ASSOCIATION,
as Trustee for Certificate holders of Bear Sterns
Asset Back Securities I LLC Asset Backed
Certificates, Series 2004-FR3,

v.

UNKNOWN HEIRS AND LEGATEES OF
CANDICE WILLIS, DECEASED, AVANTA R.
WILLIS, ENRICO D. WILLIS, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., as nominee for Fremont Investment & Loan,
UNKNOWN OWNERS and NON-RECORD

Excerpt:

ORDER
Held: The trial court erred in finding defendant Avanta R. Willis waived the issue of personal jurisdiction by filing documents with the court after entry of a default judgment and therefore, the trial court improperly denied defendant’s motion to vacate judgment and to quash service of summons. The judgment of foreclosure
and confirmation of judicial sale are vacated. The cause is remanded to the trial court for further proceedings.

<SNIP>

The motion included defendant’s assertion that she was not a white woman as set forth in the proof of service, that she was not personally served with process in this case, and that a copy of the summons was “stuffed into her mail box.”

<SNIP>

On January 12, 2010, new counsel entered his appearance on defendant’s behalf, and the court continued the cause for hearing. On January 26, 2010, defendant’s new counsel filed a reply to plaintiffs’ response to defendant’s motion to vacate judgment and quash service. In the reply, defendant stated that Karen Crohan, listed as the special process server on plaintiffs’ affidavit of service, was not a licensed detective in the State and was not appointed by the court to serve defendant. According to the reply, Crohan was an employee of Proveset LLC, a licensed detective agency. Also according to the reply, defendant again claimed that she was not served with summons, that plaintiffs failed to rebut defendant’s affidavit that she was not served, and that the trial court’s ex parte order of default was void.

On February 18, 2010, the trial court conducted a hearing on defendant’s motion to vacate judgment and quash service. Defense counsel argued to the court that plaintiffs’ affidavit of service indicated that the process server served a white female, that defendant was African American, that no one else lived with defendant and that the special process server did not comply with the relevant statutes. Plaintiffs’ counsel responded that defendant had waived the issue because defendant filed two prior petitions to vacate and that neither petition attacked personal jurisdiction.

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Illinois 7th Circuit Appeals Reverses “RESPA, BREACH OF CONTRACT CLAIMS” Catalan v. GMAC

Illinois 7th Circuit Appeals Reverses “RESPA, BREACH OF CONTRACT CLAIMS” Catalan v. GMAC


In the
United States Court of Appeals
For the Seventh Circuit

No. 09-2182

SAUL H. CATALAN and MIA MORRIS,
Plaintiffs-Appellants,
v.
GMAC MORTGAGE CORP.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6920—George W. Lindberg, Judge.
ARGUED FEBRUARY 12, 2010—DECIDED JANUARY 10, 2011

Before EASTERBROOK, Chief Judge, HAMILTON, Circuit
Judge, and SPRINGMANN, District Judge..

HAMILTON, Circuit Judge. Plaintiffs Saul H. Catalan and Mia Morris sued defendants RBC Mortgage Company and GMAC Mortgage Company under the federal RealEstate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601, et seq., and under Illinois law for gross negligence, breach of contract, and willful and wanton negligence. The district court dismissed the plaintiffs’ gross negligence claim as merely duplicating the willful and wanton negligence claim. The court granted summary judgment to GMAC Mortgage on the plaintiffs’ RESPA, breach of contract, and remaining negligence claims. The plaintiffs appeal those decisions. We reverse the grant of summary judgment for GMAC Mortgage on the plaintiffs’ RESPA and breach of contract claims, and we affirm summary judgment on their negligence claims.1

Continue below…

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TWO AG’s SEND LETTER TO FEDERAL RESERVE QUESTIONING TILA PROVISION THAT WILL HARM CONSUMERS

TWO AG’s SEND LETTER TO FEDERAL RESERVE QUESTIONING TILA PROVISION THAT WILL HARM CONSUMERS


EXCERPT:

TILA is designed to protect consumers who are not on an equal footing with lenders,
either in bargaining for credit terms or in knowledge of credit provisions. The proposed
amendments to Reg. Z, conditioning the voiding of the creditor’s security interest upon
the consumer’s tender, would be a large step backward from this purpose. In a time of
unprecedented numbers of foreclosures, it is unthinkable that the Federal Reserve would
weaken a critical provision of TILA and thus harm consumers.

Continue reading below…

[ipaper docId=45988471 access_key=key-3ahqccn5wxcxg9zdipv height=600 width=600 /]

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IL 7th Circuit Appeals Court: “WHERE’S THE NOTE” COGSWELL v. CITIFINANCIAL MORTGAGE

IL 7th Circuit Appeals Court: “WHERE’S THE NOTE” COGSWELL v. CITIFINANCIAL MORTGAGE


PATRICK L. COGSWELL and PATRICK M. O’FLAHERTY, doing business as THE PATRICK GROUP, Plaintiffs-Appellants,
v.
CITIFINANCIAL MORTGAGE COMPANY, INCORPORATED, successor by merger to Associates Finance, Incorporated, Defendant-Appellee.

No. 08-2153.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 2009. Decided October 5, 2010.

Before FLAUM, RIPPLE, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

CitiFinancial Mortgage assigned its interest in a mortgage to two investors—doing business as “The Patrick Group”—but never delivered the original or a copy of the underlying note. When The Patrick Group tried to foreclose on the mortgage in Illinois state court, its action was dismissed because it could not produce the note. After an unsuccessful appeal, The Patrick Group filed this breach-of-contract lawsuit against CitiFinancial. The suit was removed to federal court, and the district court granted summary judgment in favor of CitiFinancial.

We reverse. The district court based its summary-judgment decision primarily on a determination that CitiFinancial never agreed to deliver the note as part of the parties’ agreement to transfer the mortgage. But whether they agreed on this term is a question of fact, and The Patrick Group presented enough evidence from which a reasonable fact finder could conclude that it was a part of the parties’ agreement. The district court’s alternative basis for summary judgment—that CitiFinancial’s alleged breach did not cause The Patrick Group’s damages—was also erroneous. Under the circumstances of this case, the causation question should have been resolved in The Patrick Group’s favor as a matter of law; the state trial and appellate courts rejected The Patrick Group’s foreclosure action because without a copy of the note, it could not prove it was the holder of the debt the mortgage secured.

<SNIP>

In short, as a matter of law, The Patrick Group’s damages were caused by CitiFinancial’s failure to deliver an original or a copy of the note secured by the mortgage.[5] The open factual question is whether the parties’ agreement required CitiFinancial to do so, and on this the evidence is disputed. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.

Continue reading below…

COGSWELL v. CITIFINACIAL

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ILLINOIS CLASS ACTION: “Special Process Server” WASHINGTON v. WELLS FARGO, BofA

ILLINOIS CLASS ACTION: “Special Process Server” WASHINGTON v. WELLS FARGO, BofA


Excerpt:

The Special Process Server in the Mortgage Foreclosure Action was
purportedly appointed pursuant to the Administrative Order. The purported
appointment took place before Defendant initiated the Mortgage Foreclosure
Action. The purported appointment violated Section 2O2 and was, therefore,
ineffective, unlawful and void.

WASHINGTON v Wells Fargo, Bank of America

[ipaper docId=43758409 access_key=key-2k5g1uqi0eqnokeca2ip height=600 width=600 /]

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ATTORNEY GENERAL MADIGAN FILES LEGISLATION IN SPRINGFIELD TO ENSURE INTEGRITY OF FORECLOSURE PROCESS, PROTECT HOMEOWNERS

ATTORNEY GENERAL MADIGAN FILES LEGISLATION IN SPRINGFIELD TO ENSURE INTEGRITY OF FORECLOSURE PROCESS, PROTECT HOMEOWNERS


Via: Foreclosure Blues

(735 ILCS 5/15-1504) (from Ch. 110, par. 15-1504)
Sec. 15-1504.

Pleadings and service.
(a) Foundational requirements for affidavits. Every
affidavit filed in a foreclosure proceeding shall include a
detailed description of the basis of the affiant’s claimed
personal knowledge of the facts set forth in the affidavit,
including:
(1) a statement of which specific data systems the
affiant queried in preparing the affidavit, if the affiant
queried data systems in preparing the affidavit;
(2) a detailed factual statement of the basis of the
affiant’s belief that each data system identified
contained accurate information; and
(3) if applicable, a detailed description of the basis
of the affiant’s statement that the attached mortgage and
note are true and correct.
(b) Lost note affidavit. A copy of the mortgage and note
secured thereby shall be attached to the foreclosure complaint.
If any note required to be attached to a complaint filed
pursuant to this subsection (b) cannot be located for filing as
an exhibit, the moving party shall file an affidavit stating
the following:

…Continue reading

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CHICAGO SHERIFF SAYS NO TO FORECLOSURE EVICTIONS DUE TO FORECLOSURE FRAUD

CHICAGO SHERIFF SAYS NO TO FORECLOSURE EVICTIONS DUE TO FORECLOSURE FRAUD


Thank you Thomas J. Dart, Sheriff of Cook County, Chicago!

This is not the LOTTO…this isn’t something where we’re rolling the dice and saying…you know what? Possibly this was done illegally…

Image source: Huffington Post

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Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook

Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook


Make sure you read this carefully…This is a transcript of an employee of Residential Funding Company who is in charge of record keeping of original documents. Don’t miss the full deposition down below.

Follow the assets, don’t get lost in the trail…

17 Q. Now, when you said you’re the Director of
18 Records Management for the Minnesota office?

19 A. Uh-huh.

20 Q. Are there other offices of Residential
21 Funding that maintain records that you are
22 not responsible for?

23 A. There are records services sites in Iowa and
24 in Pennsylvania. Those deal mostly with the
25 GMAC mortgage assets.

<snip>

11 Q. And what, if anything, is your responsibility
12 with regard to those records?

13 A. To track the physical paper for those
14 assets — or that asset.

15 Q. Are you what you consider to be the keeper of
16 the records for those documents?

17 A. Sure, yep.

5 Q. Okay. And then when somebody wants to view
6 specific records from your system, is that
7 something that you’re responsible for
8 obtaining as part of your day-to-day
9 responsibilities?

10 A. The people that report to me, yes, or the
11 vendor that — that we have retained to do
12 those functions, yes. I don’t do that
13 myself.

14 Q. Who’s the vendor that you retain to do that?

15 A. A company called ACS.

16 Q. ACS?

17 A. Yep.

18 Q. And what does ACS do with regard to the
19 records?

20 A. They fulfill the request. So if somebody
21 needs a credit folder or a legal folder, they
22 research where those documents are, obtain
23 the documents and then provide that requestor
24 with either the paper documents or images.

<snip>

21 Q. There’s a file folder that shows it came from
22 the outside vendor?

23 A. Yes. Their sticker is affixed to the front
24 of the folder, so I know it came from them.

25 Q. Okay. And then is there anything on the
1 documents themselves that show where they
2 came from?

3 A. No.

4 Q. And by the outside vendor, do you mean ACS?

5 A. No. Actually, the vendor that stores the
6 actual folder is Iron Mountain.

7 Q. So there’s a sticker on that file that shows
8 it came from Iron Mountain?

9 A. Correct, yes.

10 Q. Does Iron Mountain maintain your system or do
11 they just maintain hard copies of documents?

12 A. They maintain the hard copies of the
13 documents.

14 Q. Not any records on your computer system,
15 correct?

16 A. No.

17 Q. Is that correct?

18 A. Correct.

<snip>

18 Q. What’s the relationship between Residential
19 Funding Company, LLC and U.S. Bank National
20 Association?

21 A. In — in this instance, U.S. Bank is the
22 trustee on the security that this loan is in.
23 And RFC was the issuer of the security that
24 was created.

25 Q. Who was the issuer of the security?

1 A. RFC was the issuer of the security.

2 Q. Oh, RFC is what you call Residential Funding
3 Company?

4 A. Yes.

5 Q. So RFC issued the security?

6 A. Right.

7 Q. Can you explain to me what that means?

8 A. No, I can’t.

9 Q. Okay. How do you know RFC issued the
10 security?

11 A. It’s the normal course of business as to how
12 our — our business works. RFC is in the
13 business of acquiring assets and putting them
14 together into securities to sell in the — in
15 the market.

16 MR. SHAW: I would like to
17 register a general objection to this line of
18 questioning. There’s not been a foundation
19 laid for Judy Faber being competent to reach
20 some of these conclusions that are being
21 stated on the record.

22 BY MR. HOLLANDER:
23 Q. So in this particular instance, do you have
24 any personal knowledge of the relationship
25 between RFC and U.S. Bank National
1 Association as trustee?

2 A. No.

3 Q. For whom is U.S. Bank National Association
4 acting as the trustee?

5 A. I believe it would be for the investors of
6 the — that have bought the securities.

7 Q. I’m sorry. Something happened with the phone
8 and I didn’t hear your answer. I’m sorry.

9 A. I believe it would be for the different
10 investors who have bought pieces of that
11 security that was issued.

12 Q. Are there different investors that have
13 purchased the Peter Cook note?

14 A. I don’t think I’m qualified to answer that.
15 You know, I can tell you from what my basic
16 understanding is from the process, but I’m
17 not an expert.

18 MR. SHAW: Once again, I’d like to
19 raise a continuing general objection that she
20 being — testifying with respect to what her
21 job is, and I believe you’re getting into
22 areas that is other than what her job is and
23 you’re asking for possibly even legal
24 conclusions here. So I would like to raise
25 that objection again.

[…]

[ipaper docId=39156662 access_key=key-hxfsobk1503f3iza8sn height=600 width=600 /]

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



Posted in assignment of mortgage, bifurcate, conspiracy, deposition, foreclosure, foreclosure fraud, foreclosures, GMAC, mbs, securitization, STOP FORECLOSURE FRAUD, trade secrets, trustee, Trusts, us bankComments (2)

FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER


Be sure to catch the Full Depo of Renee Hertzler below after AP Alan Zibel’s article

Bank of America delays foreclosures in 23 states

By ALAN ZIBEL, AP Real Estate Writer Alan Zibel, Fri Oct 1, 7:46 pm ET

WASHINGTON – Bank of America is delaying foreclosures in 23 states as it examines whether it rushed the foreclosure process for thousands of homeowners without reading the documents.

The move adds the nation’s largest bank to a growing list of mortgage companies whose employees signed documents in foreclosure cases without verifying the information in them.

Bank of America isn’t able to estimate how many homeowners’ cases will be affected, Dan Frahm, a spokesman for the Charlotte, N.C.-based bank, said Friday. He said the bank plans to resubmit corrected documents within several weeks.

Two other companies, Ally Financial Inc.’s GMAC Mortgage unit and JPMorgan Chase, have halted tens of thousands of foreclosure cases after similar problems became public.

The document problems could cause thousands of homeowners to contest foreclosures that are in the works or have been completed. If the problems turn up at other lenders, a foreclosure crisis that’s already likely to drag on for several more years could persist even longer. Analysts caution that most homeowners facing foreclosure are still likely to lose their homes.

State attorneys general, who enforce foreclosure laws, are stepping up pressure on the industry.

On Friday, Connecticut Attorney General Richard Blumenthal asked a state court to freeze all home foreclosures for 60 days. Doing so “should stop a foreclosure steamroller based on defective documents,” he said.

And California Attorney General Jerry Brown called on JPMorgan to suspend foreclosures unless it could show it complied with a state consumer protection law. The law requires lenders to contact borrowers at risk of foreclosure to determine whether they qualify for mortgage assistance.

In Florida, the state attorney general is investigating four law firms, two with ties to GMAC, for allegedly providing fraudulent documents in foreclosure cases .The Ohio attorney general this week asked judges to review GMAC foreclosure cases.

Mark Paustenbach, a Treasury Department spokesman, said the Treasury has asked federal regulators “to look into these troubling developments.”

A document obtained Friday by the Associated Press showed a Bank of America official acknowledging in a legal proceeding that she signed up to 8,000 foreclosure documents a month and typically didn’t read them.

The official, Renee Hertzler, said in a February deposition that she signed 7,000 to 8,000 foreclosure documents a month.

“I typically don’t read them because of the volume that we sign,” Hertzler said.

She also acknowledged identifying herself as a representative of a different bank, Bank of New York Mellon, that she didn’t work for. Bank of New York Mellon served as a trustee for the investors holding the homeowner’s loan.

Hertzler could not be reached for comment.


CONTINUE READING…..YAHOO

.

FULL DEPOSITION OF RENEE HERTZLER BELOW:

[ipaper docId=38902529 access_key=key-1iju4izmwpbrhvru9u14 height=600 width=600 /]

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



Posted in assignment of mortgage, bank of america, bank of new york, bogus, chain in title, CONTROL FRAUD, deposition, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, investigation, robo signers, stopforeclosurefraud.comComments (4)

Lord Have ‘MERScy’, Lenders Brace Yourselves

Lord Have ‘MERScy’, Lenders Brace Yourselves


JPMorgan, Bank of America Face `Hydra’ of State Foreclosure Investigations

By Margaret Cronin Fisk – Oct 6, 2010 12:01 AM ET

JPMorgan Chase & Co., Bank of America Corp. and Ally Financial Inc., defending allegations of fraudulent home foreclosures from customers and Congress, may face the most financial peril from investigations by state attorneys general.

Authorities in at least seven states are probing whether lenders used false documents and signatures to justify hundreds of thousands of foreclosures, and the number of these inquiries will grow, according to state officials and legal experts.

“You’re going to see a tremendous amount of activity with all the AGs in the U.S.,” Ohio Attorney General Richard Cordray said in an interview. “We have a high degree of skepticism that the corners that were cut are truly legal.”

JPMorgan, Bank of America and Ally have curtailed foreclosures or evictions in 23 states where courts have jurisdiction over home seizures.

While homeowners in those states and elsewhere must usually show damages to win a lawsuit, “attorneys general can just sue over deceptive sales practices and get penalties,” said Christopher Peterson, a University of Utah law professor who specializes in commercial and contract law.

In Ohio, penalties include fines up to $25,000 per violation, with each false affidavit or document considered a violation, according to state law enforcement officials. In Iowa, fines rise to a maximum of $40,000 for each violation.

Foreclosure Freeze

This penalty would apply to “every instance of an affidavit that was filed improperly or every time facts were attested to that weren’t true,” said Cordray. His counterpart in Connecticut, Richard Blumenthal, has called for a freeze on foreclosures and said the submissions are a “possible fraud on the court.”

Officials in Ohio and Connecticut, along with Florida, Texas, North Carolina, Iowa and Illinois, said they are investigating mortgage foreclosure practices.

Continue reading …BLOOMBERG

.

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



Posted in assignment of mortgage, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUDComments (3)

Class Action Certification Granted In Illinois for FDCPA Violations: Codilis & Associates

Class Action Certification Granted In Illinois for FDCPA Violations: Codilis & Associates


I have a feeling this is going to be the case in one fashion or another against the Foreclosure Mills all over the US! I am going to start a new post for each Class Action related to a Mill. Keep checking back!

April 7, 2010 by christine

A reader from Illinois sent me this information. If you’re being foreclosed upon in Illinois by Codilis & Associates, you might want to pay close attention. This is from Edelman, Combs, Latturner & Goodwin, P.C.’s website.

Shea v. Codilis

99 C 0057

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

2000 U.S. Dist. LEXIS 4131

March 27, 2000, Decided

DISPOSITION: [*1] Plaintiff’s motion for class certification GRANTED.

COUNSEL: For plaintiff: Daniel A. Edelman, Cathleen M Combs, James O. Latturner, Marianne J. Lee, EDELMAN, COMBS & LATTURNER, Chicago, Illinois.

For defendant: Thomas McGarry, John M. Foley, Matthew R. Henderson, HINSHAW & CULBERTSON, Chicago, Illinois.

JUDGES: David H. Coar.

OPINION BY: David H. Coar

OPINION: Plaintiffs, James and Nancy Shea, received a form letter from Defendants Codilis & Associates, P.C. notifying them that the accelerated balance of their note and mortgage was due. Plaintiffs allege that the letter violates the Fair Debt Collection Practices Act (”FDCPA”) because it does not state the “amount of the debt” as required by 15 U.S.C. @ 1692g. Plaintiffs move to certify a class of individuals who were mailed the same collection form letter from Codilis & Associates, P.C. (that is, providing a dollar figure for the principal balance, but omitting such figures for other types of charges owed) on or after January 7, 1998, in connection with attempts to collect a residential mortgage loan on property located at the same address to which the letter was sent, if the letter was not returned by the Postal Service. [*2]

Plaintiffs seek class certification under Federal Rule of Civil Procedure 23(a) and 23(b)(3). Defendants do not oppose certification. To establish a class action, rule 23(a) requires that (1) the class be so numerous so as to render joinder of all members impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative class are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interest of the class. In addition, rule 23(b)(3) states that common issues of law or fact must predominate over individual issues, and the class action must be the superior method of adjudicating the controversy.

Rule 23 requirements have been satisfied in this case. Defendants are one of the largest mortgage foreclosure firms in the Chicago area, filing more than 1,000 cases annually. Considering Defendants’ use of a standardized form letter, it is reasonable to infer that there will be a large number of class members. The claims of the class center on Defendants’ alleged violation of 15 U.S.C. @ 1692g by use of these collection form letters. Moreover, Plaintiffs’ claims [*3] are based on the same factual issues and legal theories as those of applicable to the class members. The Court is also convinced that Plaintiffs, who retained counsel experienced in brining class action suits and collection abuse claims, will adequately protect the interest of the class.

Furthermore, each proposed class member received the same form letter from Defendants, and the predominant question in this case is whether the language of the form letter violates 15 U.S.C. @ 1692g. A class action is also the superior method of resolving this controversy. Because small claims are at stake, it is improbable that many of the class members would initiate litigation individually. In addition, potential class members may not be aware of the violation of their rights under the FDCPA.

Therefore, Plaintiff’s motion for class certification is GRANTED. The certified class includes:

a. All persons who were mailed a form collection letter from Codilis & Associates, P.C. in the form represented by Exhibit A of Plaintiffs’ complaint, i.e. with a statement that a principal balance is $ “x,” plus other items which are not given a dollar amount;

b. On or after January 7, 1998 (one [*4] year prior to the filing of this action);

c. In connection with attempts to collect a residential mortgage loan on property located at the same address to which the letter is sent; and

d. Which letters were not returned by the Postal Service.

Christine here: If you have questions about joining in this lawsuit, you should call the law firm, which should be available from the link to their site above.

DISCLAIMER:

****CHRISTINE SPRINGER IS NOT A LICENSED ATTORNEY. THIS BLOG IS COMPRISED OF HER OPINIONS, OBSERVATIONS AND INTERPRETATIONS AND IS NOT INTENDED TO BE CONSTRUED AS LEGAL ADVICE. PLEASE CONSULT WITH AN ATTORNEY BEFORE RELYING ON OR TAKING ANY ACTION BASED ON THE INFORMATION IN THIS BLOG.****

Source: ForeclosureIndustry.com

Posted in foreclosure fraudComments (11)


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