Loan Modification | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "loan modification"

A Foreclosure Film in the Making Awaits Final Scene

A Foreclosure Film in the Making Awaits Final Scene


American Banker-

What do an insurance agent in Tennessee, a homemaker in Ohio, a private investigator from Wisconsin and a helicopter stunt pilot in Hollywood have in common?  Well, for one thing, they’ve all participated in some fashion in “Foreclosure Diaries,” the documentary that my company, Pacific Street Films, has been producing, in fits and starts, since 2006.

When work first started on the film, the original tag was “Follow the Money,” and the road seemed to lead towards a dark and confusing destination. There was all this talk in the industry about scads of money to be made in servicing “subprime” loans.  There were seminars, conferences, it seemed all the rage. 

[AMERICAN BANKER]

image: macgasm.net

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



Posted in STOP FORECLOSURE FRAUDComments (2)

Foreclosure Threats Even After Loan Modifications

Foreclosure Threats Even After Loan Modifications


WFTV-

A Port Saint John family thought they had avoided disaster after a loan modification was approved.

But  a year later, they claim, Bank of America is foreclosing on their home even though they haven’t missed a mortgage payment since the modification.

Billie Whaley posted three signs  at her  home, all attacking Bank of America.

One reads: “Please help us. Bank of America is trying to steal our home.”

Whaley claims the lender double-crossed her family by approving  a loan modification, taking payments for nearly a year, and now threatening foreclosure.

“I can’t think about it and not cry. We put everything into this home,” Whaley said.

[WFTV]

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



Posted in STOP FORECLOSURE FRAUDComments (2)

Abigail Field: Insider Says Promontory’s OCC Foreclosure Reviews for Wells are Frauds. Brought to You by HUD Sec. Donovan

Abigail Field: Insider Says Promontory’s OCC Foreclosure Reviews for Wells are Frauds. Brought to You by HUD Sec. Donovan


If anyone can set the record straight, Abigail is just the person to do it!

Naked Cap-

U.S. Housing Secretary Shaun Donovan has embarrassed himself yet again. This time, though, he’s gone in for total humiliation. See, he praised the bank-run Office of the Comptroller of the Currency’s (OCC) foreclosure reviews as an important part of the social justice delivered by the mortgage “settlement“. But thanks to an insider working on an OCC review, we know that process is a sham. Worse, the insider’s story shows that enforcement of the settlement is likely to be similar, which is to say, meaningless. Doesn’t matter how pretty the new servicing standards are if the bankers don’t have to follow them.

Let’s start with Donovan’s sales pitch for the OCC reviews:

For families who suffered much deeper harmwho may have been improperly foreclosed on and lost their homes and could therefore be owed hundreds of thousands of dollars in damages — the settlement preserves their ability to get justice in two key ways.

First, it recognizes that the federal banking regulators have established a process through which these families can receive help by requesting a review of their file. [ACF: That’s the OCC process] If a borrower can document that they were improperly foreclosed on, they can receive every cent of the compensation they are entitled to through that process.

Second, the agreement preserves the right of homeowners to take their servicer to court. Indeed, if banks or other financial institutions broke the law or treated the families they served unfairly, they should pay the price — and with this settlement they will. [bold throughout mine]

Now, the justice of the settlement has been debunked many times over. And David Dayen debunks Donovan’s OCC pitch here. What’s important is that Bank Housing Secretary Donovan wants you to believe the Wells Fargo OCC process is a meaningful contribution to holding bankers accountable and compensating victims.

Wells Fargo’s Fraudulent OCC ‘Independent’ Foreclosure Reviews

[NAKED CAPITALISM]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Insider Says Wells Fargo’s Independent Foreclosure Review for OCC is “a Sham” – Mandelman Matters

Insider Says Wells Fargo’s Independent Foreclosure Review for OCC is “a Sham” – Mandelman Matters


I got an email the other night from one of my readers.  It said…

 

“I was hired as one of those “Independent File Review Specialist” at a company called Promontory working on Wells Fargo Bank. I have 15 years industry experience in all facets of the mortgage & title industry, and just needed a job at the moment.  I must say the whole project is a mess, and a terrible joke on the victims of foreclosure and the American people. It’s a total sham.”

 

No kidding, I said to myself.  Or, as Yves Smith would say… “Quelle surprise.”  The email continued…

 

“I have found errors that should be moved up through the ranks, but am told “quit digging so deep”…”put your shovel away”…Focus on the questions “in scope”… The review forms are set up so no harm could ever be found. It’s equivalent of an attorney presenting his case to a judge with just 20% of the evidence.”

 

Well, that can’t be good, right?  He went on…

 

“I would also like to mention that I was brought in through a temp agency…..some of the people brought in with me do not know the difference between a truth in lending statement, and a note. It’s a shame, these are your reviewers!!! The supervisors don’t want any trouble…they are mostly temps too, just trying to get a promotion to full time. Does this sound like a fair and impartial review to you? Since we’re temps I suppose that’s impartial, not to mention they made us “affiant notaries” so we can so-called “notarize each others reviews.”

 

Doesn’t sound “fair and impartial” in the least, now does it?  But I do like the ability to notarize each other’s reviews.  That sounds handier than a pocket on a man’s shirt.  He closed by saying…

 

“The foreclosed victims don’t realize if they do not provide specific dates on the intake forms… their complaints are considered “general comments” out of scope. They should specifically ask for a “full file review” and hopefully their info has not been scrubbed or purged… I could go on and on, but I just felt I needed to share this.”

 

And in my opinion, you’ve done a very good thing.

 

Our insider says he was hired by Promontory Compliance Solutions, LLC to do work on the Independent Foreclosure Review for Wells Fargo Bank.  The company’s Website describes itself as follows:

 

Promontory excels at helping financial companies grapple with and resolve critical issues, particularly those with a regulatory dimension. Taken as a whole, Promontory professionals have unparalleled regulatory credibility and insight, and we provide our clients with frank, proactive advice informed by evolving best practices and regulatory expectations.

Promontory is a leading strategy, risk management and regulatory compliance consulting firm focusing primarily on the financial services industry. Led by our Founder and CEO, Eugene A. Ludwig, former U.S. Comptroller of the Currency, our professionals have deep and varied expertise gained through decades of experience as senior leaders of regulatory bodies, financial institutions and Fortune 100 corporations. 

 [Continue to Mandelman Matters] it gets much better!

.

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



Posted in STOP FORECLOSURE FRAUDComments (4)

US Treasury: New HAMP Mortgage Modification Program Includes GSE Principal Reductions

US Treasury: New HAMP Mortgage Modification Program Includes GSE Principal Reductions


I posted the quoted text below back on Nov ’10… I wonder who exactly signs off for MERS, if this is so?

The standard modification agreement
is between the Borrower and
the Lender. The agreement amends
and supplements (1) the Mortgage,
Deed of Trust or Deed to Secure
Debt (Security Instrument) and (2)
the Note bearing the same date as,
and secured by, the Security
Instrument. Prior to MERS, the
standard agreement worked
because the Lender was the mortgagee
of record and could modify
the mortgage and also had the
authority to modify the Note.

However, if MERS is the mortgagee
of record, the Lender can’t
modify the mortgage without the
“mortgagee’s” consent.

MNINEWS-

The Obama Administration Friday announced it is expanding its flagship mortgage modification program and will now encourage lenders to reduce the principal loan balance for Fannie Mae and Freddie Mac loans.

The announcement comes just three days after President Obama said he would do more to support the struggling housing market and two days after Federal Reserve Chairman Ben Bernanke said housing is holding back the economic recovery.

Assistant Secretary for Financial Stability Timothy Massad in a blog post Friday outlined the changes to HAMP — including extending the end-date by one year and refocusing on principal reductions.

Massad said Treasury notified the Federal Housing Finance Agency, the regulator for Fannie Mae and Freddie Mac, that they will pay principal reduction incentives to the GSEs if they allow servicers to forgive principal — if done in conjunction with a HAMP modification.

Massad also said Treasury will triple the incentives for HAMP principal reduction modifications by paying from 18 to 63 cents on the dollar, depending on how much the loan-to-value ratio is reduced.

[MNINEWS]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

Inside The Foreclosure Machine: Homeowners are still fighting servicer mistakes that threaten their homes.

Inside The Foreclosure Machine: Homeowners are still fighting servicer mistakes that threaten their homes.


‘Kafkaesque’ nightmares plague homeowners facing foreclosure

 

iWATCH NEWS-

Like millions of stories from the great recession, this one begins with homeowners struggling to keep up with a mortgage payment they simply couldn’t afford.

By 2009, the adjustable interest rate for Cassandra and Bernard Gray’s Durham, N.C., home loan had spiked to more than 12 percent. “I didn’t know if we were going to be on the street or in a shelter,” Cassandra recalls. “We couldn’t afford groceries. It got pretty bad.”

They were thrilled to sign up for a modification plan with their loan servicer, GMAC Home Mortgage, Cassandra Gray said…

[iWATCH NEWS]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Bank of America Settlements Impede Fraud Probe, Hushing Borrowers Arizona Says

Bank of America Settlements Impede Fraud Probe, Hushing Borrowers Arizona Says


Bloomberg-

Bank of America Corp. is impeding an investigation of its loan modification practices by negotiating settlements with borrowers who must agree to keep them secret and not criticize the bank in exchange for cash payments and loan relief, Arizona officials say.

The Arizona Attorney General’s office is asking a court to block those aspects of the settlements and require the bank to turn over all the agreements. The bank denies any wrongdoing.

One 2011 accord involving a borrower facing foreclosure who defaulted on a $253,142 mortgage included a $5,000 payment, plus $7,500 for legal fees, and the defaulted payments were waived and the loan was modified to a 40-year term with a 2 percent interest rate, court documents show. The terms of the original loan and the borrower’s complaint about the lender weren’t described in the documents.

[BLOOMBERG]

[ipaper docId=79536678 access_key=key-230tup2numiwbhfeybli height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Bank Of America Error Almost Costs Valley Family Its Home

Bank Of America Error Almost Costs Valley Family Its Home


Shocking…no, not really but this must be BofA’s number what?? Again, an error that almost cost someone their house??

KRGV-

A national bank admits its error almost cost a Valley family its home.

The home loan modification program was supposed to make life easier. It was supposed to take away some of the financial burden. It did the opposite.

It’s a home filled with love and stocked with pictures of a family. It’s a home they almost lost.

[KRGV]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

Homeowners, Investors in Mortgage Backed Securities Feel Your Pain. Hear Their Lawyer Talk About Servicer Nightmares.

Homeowners, Investors in Mortgage Backed Securities Feel Your Pain. Hear Their Lawyer Talk About Servicer Nightmares.


Absolutely do not miss this piece from Abigail Field – So head over and please absorb the information.

 

Abigail C. Field-

If you want to cut through some of the nonsense the banks have managed to sell as information about the housing situation, robosigning, mortgage modifications, check out this very accessible interview of attorney Talcott Franklin by Martin Andelman.

Tal represents the majority of investors hosed once by Wall Streeers selling AAA-rated mortgage backed junk, and constantly being hosed again by the big bank servicers of those mortgages. Interestingly, his perspective sounds very much like homeowners’. Yes, a couple of times it gets a little too legalistic, but only for about 5 minutes of the slightly longer than the hour chat—when you hit the overview of the contracts structuring securitization, or any other topic that is more in the weeds than you want to go, take a deep breath and keep going. Most of the interview is in a rhythm and a language that creates clarity I’ve not seen or heard elsewhere.

[REALITY CHECK]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

The World of the Investor with Attorney Talcott Franklin – A Mandelman Matters Podcast

The World of the Investor with Attorney Talcott Franklin – A Mandelman Matters Podcast


Please find some time today or over the weekend to listen to this excellent podcast of Martin Andelman’s interview with Attorney Talcott Franklin, who represents more than half of all the investors in mortgage-backed securities on the planet.  Tal’s the co-author of the “Mortgage and Asset-backed Securities Litigation Handbook,” and he’s a very experienced and highly sophisticated litigator. You will learn a whole lot and many thanks to Martin for this super interview.

Please head over to Mandelman Matters for the full article.

The podcast is available in two versions… MP4 and MP3.  The MP4 version includes a couple of slides that show diagrams of the basic securitization process, but the MP4 format may not play on some computers.  The MP3 version is audio only, and should play on most any computer.  Most listeners will have no trouble following along either way.

So, turn up the volume on your speakers, and click the MP4 or MP3 version.  I loved recoding this podcast.  If you want to know more about the foreclosure crisis, you’re about to learn from an expert on the other side of the foreclosures, the investor side… it doesn’t get any better than this!

CLICK HERE TO PLAY THE ENHANCED MP4 VERSION

… INCLUDES SLIDES ON SECURITIZATION

 OR

CLICK HERE TO PLAY THE MP3 VERSION

Mandelman out.


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



Posted in STOP FORECLOSURE FRAUDComments (0)

CA AG Kamala Harris 11-0014, “Foreclosure Modification Act” – Prohibits lenders from foreclosing on California citizen’s personal home.

CA AG Kamala Harris 11-0014, “Foreclosure Modification Act” – Prohibits lenders from foreclosing on California citizen’s personal home.


 UPDATE: Via our friend Martin Andelman (Mandelman Matters) “I am told this is from a homeowner sending something in to be considered and would have to be sponsored in order to move through committee, etc.” Just so you all know, he made a few calls and found out.

 

The Attorney General of California has prepared the following title and summary of the chief purpose and points of the proposed measure:

HOME MORTGAGE MODIFICATION. INITIATIVE CONSTITUTIONAL AMENDMENT. Makes home ownership fundamental right. Prohibits lenders from foreclosing on California citizen’s personal home. Requires lenders to assist California borrowers not paying on home loans due to financial hardship or illness. Requires lenders to reduce home loan principal to reflect drop in local property value if more than 10 percent, and to reschedule payments, reduce interest rates, and/or refinance without new credit review. Requires lenders to refinance home loans at minimum cost within 45 days of request if loan has been maintained for three years. Provides back property tax assistance to homeowners. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments: The fiscal impacts of some provisions of this measure are uncertain because of potential conflicts with provisions of the U.S. and State Constitutions and federal laws and regulations governing federally chartered lenders. Potential losses to local governments up to a few billion dollars annually in revenues from property taxes and other types of fees and assessments. Potential state costs up to the low billions of dollars annually to replace the loss of property tax revenues now used to meet the Proposition 98 education funding requirement. (11-0014)

[ipaper docId=68796943 access_key=key-1jtklx95x3afktjxfasx height=600 width=600 /]

 

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



Posted in STOP FORECLOSURE FRAUDComments (3)

Be Prepared, New Wave of Foreclosures Coming

Be Prepared, New Wave of Foreclosures Coming


This can only mean one thing. Are your mark, get set, go! The settlement is about to be signed, sealed and delivered!

The new wave will also mean more fraud and more title defects America. You continue to get sold out and tossed for the bankers who are too big too fail. Get your money out of these banks immediately. Don’t complain, don’t explain when you continue to get screwed….now, you’re doing this to yourself.

REUTERS-

The paralyzed U.S. housing market is once again up against an obstacle it has seen before — mounting foreclosures.

And a fresh drop in home prices is likely to result.

Banks have stepped up the pace of home seizures after a year-long slowdown brought on by the “robo-signing” scandal in which banks were accused of seizing properties without a proper review of loan documents.

[REUTERS]

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



Posted in STOP FORECLOSURE FRAUDComments (2)

Eric Holder sides with banks against state AGs in Foreclosure Fraud and Robo-Signing settlement talks

Eric Holder sides with banks against state AGs in Foreclosure Fraud and Robo-Signing settlement talks


Fox Business-

The Obama Administration has finally found something it can agree on with the nation’s big banks: The need for the 50 state attorneys general to finally reach a deal to end the year-long investigation into faulty mortgage foreclosure practices and reach a long-awaited settlement, the FOX Business Network has learned.

People at the big banks say the Obama Administration is prodding the state AGs, led by Iowa’s Tom Miller, to agree on a deal that is currently on the table that calls for fines and revised mortgage foreclosure practices — but also limits banks’ liability on legal action.

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



Posted in STOP FORECLOSURE FRAUDComments (5)

[VIDEO] AG Beau Biden TOTALLY Gets It!  “One of The Greatest Fraud in The Courts of American History”

[VIDEO] AG Beau Biden TOTALLY Gets It! “One of The Greatest Fraud in The Courts of American History”


Excellent video clip. Watch this and tell me if he doesn’t get the fraud. Delaware, Mass., Nevada and NY should be very proud of their AG’s. We are waiting for the rest to show a bit more strength.

Not Done Until The Core of Mortgage Back Securities Is Investigated.

UP w/ Chris Hayes

 

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



Posted in STOP FORECLOSURE FRAUDComments (2)

Iowa Class Action Against CitiMortgage “agressively and falsely advertised its commitment to help homeowners obtain affordable loan modifications.”

Iowa Class Action Against CitiMortgage “agressively and falsely advertised its commitment to help homeowners obtain affordable loan modifications.”


H/T   Adam Belz

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION

KEITH GOODYK, on behalf of himself and all
others similarly situated,
Plaintiff,

V.

CITIMORTGAGE, INC.,
Defendant.

[ipaper docId=66714314 access_key=key-ubxfb2g3pval653h78z height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

JPMorgan Chase Got U.S. Help, but Mortgage Holders Did Not

JPMorgan Chase Got U.S. Help, but Mortgage Holders Did Not


Just more fuel on why NY AG Schneiderman should give it all he has to stop this insanity.

 

NYTIMES-

For those who live in the alternate universe that is New York outside of Manhattan, brownstone Brooklyn and assorted upper-income offshoots, Mimi Pierre Johnson’s story is depressingly familiar.

She and her husband bought their four-bedroom home in Elmont, on Long Island, for $413,000 in 2005. Then the recession blew in. Her husband lost his construction job, her real estate work slowed and their boiler wheezed and died. Their once-reasonable mortgage resembled a forbidding mountain.

She dialed her bank, JPMorgan Chase, seeking a lifeline. The bank gave her a temporary modification, but then canceled it. It lost her documents. It did not return her calls. Late fees and lawyer bills piled up. “I’m a Realtor; I know I’m doomed,” Ms. Johnson said. “But I want to say to Chase, ‘Hello!? The government gave you a bailout to help people like me.’ ”

[NEW YORK TIMES]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Abigail C. Field | Take down of WaPo’s gross pro-bank editorial

Abigail C. Field | Take down of WaPo’s gross pro-bank editorial


One has to be extremely out of touch with what’s happening but good thing there’s Abigail’s dose of Reality Check!

Saying it like it is.

Abigail C. Field-

Yesterday the Washington Post ran a grotesquely bank-skewed editorial chastising New York Attorney General Eric Schneiderman for his refusal to play ball with the hush money “50 state AG” settlement on the table. Matt Stoller pointed out that the Washington Post owns Kaplan schools, a for profit network of schools, and Schneiderman’s investigating for-profit schools, a fact that the WaPo didn’t disclose. But the Kaplan connection is important in another way too, as it probably explains why the WaPo had so much empathy for the banks in the editorial, and displayed so little understanding of the banks’ victims.

[REALITY CHECK]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

GONZALEZ v. WILSHIRE CREDIT CORP., U.S. BANK | NJ Supreme Court Affirms Appellate Div. “Fraudulent lending practices, even in a post-judgment setting, may be the basis for a Consumer Fraud Act lawsuit”

GONZALEZ v. WILSHIRE CREDIT CORP., U.S. BANK | NJ Supreme Court Affirms Appellate Div. “Fraudulent lending practices, even in a post-judgment setting, may be the basis for a Consumer Fraud Act lawsuit”


JUSTICE ALBIN delivered an awesome beat down! Kick-Ass! All the named judges below did!

We roundly reject defendants’ argument that the collection activities of a servicing agent, such as Wilshire, do not amount to the “subsequent performance” of a loan, a covered activity under the CFA. The Attorney General and Legal Services, as amici, both have outlined the abusive collection practices of servicing agents for Residential Mortgage Back Securities. We are in the midst of an unprecedented foreclosure crisis in which thousands of our citizens stand to lose their homes, and in desperation enter into agreements that extend credit — post-judgment — in the hope of retaining homeownership. Defendants would have us declare this seemingly unregulated area as a free-for-all zone, where predatory-lending practices are unchecked and beyond the reach of the CFA. Yet, the drafters of the CFA expected the Act to be flexible and adaptable enough to combat newly packaged forms of fraud and to be equal to the latest machinations exploiting the vulnerable and unsophisticated consumer.

GonzalezvWilshireCreditCorp

BLANCA GONZALEZ, Plaintiff-Respondent,

v.

WILSHIRE CREDIT CORPORATION and U.S. BANK NATIONAL ASSOCIATION, as Trustee Under the Pooling and Servicing Agreement dated March 14, 1997 for Cityscape Home Equity Loan Trust 1997-B, Inc., Defendants-Appellants.

No. A-99 September Term 2009 065564.

Supreme Court of New Jersey.

Argued January 18, 2011. Decided August 29, 2011.

Kim A. Watterson, a member of the Commonwealth of Pennsylvania bar, argued the cause for appellants (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Richard P. Haber and Anthony J. Risalvato, of counsel and on the briefs).

Madeline L. Houston argued the cause for respondent (Houston & Totaro, attorneys).

Janine N. Matton, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Matton and Megan Lewis, Deputy Attorney General, on the brief).

Michael R. O’Donnell submitted a brief on behalf of amicus curiae New Jersey Bankers Association (Riker Danzig Scherer Hyland & Perretti, attorneys; Mr. O’Donnell, Ronald Z. Ahrens, and Anthony C. Valenziano, on the brief).

Rebecca Schore submitted a brief on behalf of amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., attorney; Mr. Miller, Ms. Schore, Margaret Lambe Jurow, and David McMillin on the brief).

JUSTICE ALBIN delivered the opinion of the Court.

Plaintiff Blanca Gonzalez pledged as collateral the home she jointly owned with Monserate Diaz to secure a loan he obtained from Cityscape Mortgage Corporation. Diaz died, and afterwards plaintiff began making the necessary mortgage payments to the then holder of the loan, defendant U.S. Bank Association. When plaintiff fell behind in making timely payments, the bank secured a foreclosure judgment. The defendant servicing agent for the bank withheld executing on the judgment provided that plaintiff fulfilled the terms of successive agreements into which she entered with the agent. The post-judgment agreements recast the terms of the original loan to Diaz, but included — plaintiff asserts — illicit financing charges and miscalculations of monies due. Plaintiff claims that the servicing agent, knowing that plaintiff had no more than a primary school education and could not speak English, bypassed her legal-services attorney in having her execute a second agreement — an agreement that memorialized predatory and fraudulent lending practices.

Plaintiff alleges that the conduct of the defendant bank and the defendant servicing agent violated the Consumer Fraud Act. Defendants argue that a post-judgment settlement agreement involving a non-debtor mortgagor falls outside the purview of the Act.[1] The trial court agreed and granted summary judgment in favor of defendants. The Appellate Division reversed.

We hold that the post-foreclosure-judgment agreements in this case were both in form and substance an extension of credit to plaintiff originating from the initial loan. Fraudulent lending practices, even in a post-judgment setting, may be the basis for a Consumer Fraud Act lawsuit. For that reason, we affirm the Appellate Division.

I.

A.

In 1994, plaintiff Blanca Gonzalez and Monserate Diaz purchased a home in Perth Amboy as tenants in common;[2] both of their names were placed on the deed.[3] In February 1997, Diaz borrowed $72,000 from Cityscape Mortgage Corporation (Cityscape) and executed a Fixed Rate Balloon Note with an annual interest rate of 11.250 percent. In the note, Diaz agreed to make monthly payments of $699.31 until the loan’s maturity date, March 3, 2012, when a final balloon payment of $61,384.17 would be due. Plaintiff did not sign the note. As security for the loan, plaintiff and Diaz pledged both of their interests in the property by executing a mortgage in favor of Cityscape. The mortgage agreement prepared by Cityscape listed plaintiff and Diaz as “borrower[s].” Although plaintiff was not personally liable on the note signed by Diaz, in the event of nonpayment of the loan, plaintiff’s ownership interest in the home was subject to foreclosure to pay Diaz’s debt.

In March 1997, Cityscape assigned the note and mortgage to U.S. Bank National Association (U.S. Bank). U.S. Bank acquired the note and mortgage in this case, along with a bundle of other like instruments, in the bank’s capacity as trustee, under a pooling and servicing agreement for Cityscape Home Equity Loan Trust 1997-B, Inc. Wilshire Credit Corporation (Wilshire) was U.S. Bank’s servicing agent.[4] The role of a servicing agent generally is to collect payments on the loan and, in the event of default, pursue foreclosure or other alternatives to secure payment of the loan. See Adam J. Levitin & Tara Twomey, Mortgage Servicing, 28 Yale J. on Reg. 1, 15, 23, 25-28 (2011).

In 1999, Diaz died intestate.[5] Plaintiff continued to live in the home and make payments on the loan. In 2001, plaintiff was laid off from her factory job at Mayfair Company, where she had been employed for seventeen years. After the layoff, she suffered a heart attack and other health difficulties, and in 2003 was approved for Social Security disability benefits.

Over time, plaintiff fell behind on the loan payments. At some point, Wilshire refused to accept further payments from plaintiff. In March 2003, U.S. Bank filed a foreclosure complaint in the Superior Court, Chancery Division, Middlesex County, naming Diaz’s estate and plaintiff as defendants. In September 2003, the bank forwarded to plaintiff a Notice of Intent to Foreclose, indicating that $8,108.23 was owed on the loan. Plaintiff was unable to pay the amount due.

In April 2004, the chancery court entered judgment in favor of U.S. Bank in the amount of $80,454.71 plus interest and costs, including $954.55 in attorneys’ fees, on the defaulted loan. The court also ordered that the mortgaged premises be sold to satisfy the judgment. A writ of execution was issued, and a sheriff’s sale was scheduled for the next month.

Before the sheriff’s sale, plaintiff entered into a written agreement with Wilshire, U.S. Bank’s servicing agent. In May 2004, Wilshire agreed to forbear pursuing the sheriff’s sale contingent on plaintiff paying arrears, including foreclosure fees and costs, of $17,612.84. Plaintiff agreed to make a lump sum payment of $11,000 and then monthly payments of $1,150 through January 20, 2006.[6] Wilshire added the caveat: “THIS TERM MAY NOT REINSTATE THE LOAN.” Wilshire further agreed to dismiss the foreclosure action when plaintiff made the account current. The agreement ended with the following language: “THIS IS AN ATTEMPT TO COLLECT A DEBT.” In negotiating this agreement with Wilshire, Gail Chester, a lawyer for Central Jersey Legal Services, represented plaintiff.

By the end of September 2005, plaintiff had made payments totaling $24,800 under the agreement — the $11,000 lump sum payment and twelve monthly payments of $1,150. However, plaintiff missed four payments during this period. The trial court calculated, and plaintiff agreed, that she was in arrears $6,461.89 as of October 2005. A sheriff’s sale was scheduled but cancelled because the parties entered into a new written agreement in October 2005. Plaintiff was contacted directly; neither Wilshire nor U.S. Bank notified Ms. Chester, the attorney who represented plaintiff on the first agreement.

In negotiating this second agreement, which was entirely in English, Wilshire dealt solely with plaintiff, who did not speak or read English (Spanish is her native language) and who only had a sixth-grade education. Wilshire’s own notes indicate that “borrower does not speak English[;] negotiating has been difficult,” that plaintiff was disabled and on a fixed income of $600 per month, and that plaintiff did not want to sell the property because it had been in the family for many years.

In this second agreement signed by plaintiff, arrearages, including foreclosure fees and costs, were fixed at $10,858.18.[7] Thus, the arrearages in this agreement were $4,396.29 more than that calculated earlier by the chancery court. Plaintiff agreed to make a lump sum payment of $2,200 and then monthly payments of $1,000 through October 2006. As in the first agreement, Wilshire agreed to discharge the foreclosure action when the mortgage payments became current. This agreement also included the message: “THIS IS AN ATTEMPT TO COLLECT A DEBT.”

In September 2006, the attorney for U.S. Bank copied plaintiff on a letter to the sheriff’s office stating that the previously scheduled sheriff’s sale had been adjourned to October 4, 2006. Yet plaintiff had not missed a single payment required by the 2005 agreement. Indeed, plaintiff had made not only all required payments through October 2006 but also additional payments. Thus, the loan was current, but Wilshire had not dismissed the foreclosure action as promised.

Plaintiff took the letter from U.S. Bank’s attorney to Ms. Chester of Legal Services. Having no knowledge of the second agreement, Ms. Chester wrote to the bank’s attorney that plaintiff had paid $20,569.32 in excess of her regular monthly payment, $699.31, since the May 2004 agreement (the first agreement). Ms. Chester suggested that it was time to return plaintiff to the monthly payment schedule of $699.31. The bank’s attorney did not respond. Rather, in October 2006, Wilshire sent a letter to plaintiff noting that the second agreement was about to expire and that a new agreement needed to be negotiated otherwise it would resume foreclosure on her property. Ms. Chester contacted the Wilshire Loan Workout Compliance Department seeking answers to the status of plaintiff’s obligations. Wilshire then forwarded to Ms. Chester the second agreement. Wilshire could not explain how it had come to the $10,858.18 arrears set in the October 2005 agreement, nor could it explain why plaintiff was not deemed current on the loan.

Additionally, in the period after the chancery court’s entry of the foreclosure judgment in April 2004, plaintiff had given Wilshire proof that her residence was covered by homeowner’s insurance. Nevertheless, Wilshire required her to purchase additional and unnecessary homeowner’s insurance, known as force-placed insurance.[8] The charges for this force-placed insurance — for various non-consecutive periods between December 2004 and September 2009 — totaled $3,346.48.

B.

In July 2007, plaintiff filed a complaint in the Chancery Division, Superior Court, Middlesex County, alleging that defendants Wilshire and U.S. Bank engaged in deceptive and unconscionable practices in violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-2. In particular, plaintiff claimed that defendants, knowing that she did not read or speak English and knowing she had previously been represented by an attorney, contacted her directly to negotiate the October 2005 agreement that was written entirely in English. The complaint asserts that Wilshire included in the October 2005 agreement improper costs and fees in calculating her arrearages and demanded amounts that were not due and owing. Plaintiff sought treble damages against Wilshire, attorneys’ fees against both defendants, a declaration stating “the correct principal balance on the mortgage loan” and “that the mortgage loan in issue is not in arrears,” and an order from the court directing “defendants to take the steps necessary to have the judgment of foreclosure vacated.”

After taking some discovery, plaintiff and defendants each moved for summary judgment. The chancery court granted summary judgment in favor of defendants and dismissed plaintiff’s CFA complaint. The court held that the CFA does not apply to “post-judgment settlement agreements entered into to stave off a foreclosure sale.” The court reasoned “that the Legislature never intended the [CFA] to apply to settlement agreements entered into by parties to a lawsuit” and that to read the CFA otherwise “would undermine the settlement of foreclosure actions and potentially the settlement of all lawsuits.” The court characterized plaintiff’s motives as “transparent — the potential ability to win treble damages and attorneys’ fees.” The court concluded that the only “appropriate mechanism for [p]laintiff to seek relief is to file a motion to vacate, modify, or enforce the settlement.”

C.

In an opinion authored by Judge Payne, the Appellate Division reversed and reinstated plaintiff’s CFA claim. Gonzalez v. Wilshire Credit Corp., 411 N.J. Super. 582, 595 (App. Div. 2010). The panel viewed the post-judgment agreements between plaintiff and defendants as “unquestionably contracts” covered by the CFA. Id. at 593 & n.7. The panel rejected the argument that there was no “privity” between plaintiff and Wilshire because the initial loan was executed with Diaz, and further noted that “privity is not a condition precedent to recovery under the CFA.” Id. at 594 & n.9. The panel found that plaintiff’s “status as a signatory to the [post-judgment] agreements . . . with Wilshire provides her with standing under the CFA.” Id. at 594.

It viewed plaintiff’s CFA claim, in essence, as a charge that Wilshire wrongly transformed “the terms of annually or biannually renegotiated agreements . . . into a never-terminating cash cow.” Id. at 590. The panel reasoned that, if proven, the monetary damages suffered by plaintiff from Wilshire’s alleged unconscionable practices met the “ascertainable loss” requirement under the CFA. Id. at 594.

The panel did not hold that most settlements would be subject to the CFA. Id. at 593. However, the panel concluded that in this case CFA coverage would be warranted because the post-judgment agreements signed by plaintiff were similar to the cure-and-reinstatement agreements under the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68, which permits debtor mortgagors to cure a default at anytime until the order of final judgment.[9] Gonzalez, supra, 411 N.J. Super. at 589-90, 593. The panel explained that had plaintiff been the initial debtor and the attempts to cure default occurred before entry of the foreclosure order, this state’s case law would give CFA protection to the agreements. Id. at 593. The panel found “no principled reason to distinguish” the transactions of a non-debtor mortgagor completed after judgment. Id. at 593-94.

The panel disagreed with the chancery court that plaintiff’s only recourse to Wilshire’s allegedly wrongful conduct was to move for a modification of the “settlement” with Wilshire. Id. at 594-95. The panel maintained that the CFA’s remedies were created to address the circumstances that allegedly occurred here. Id. at 595. The purpose of the treble-damages provision was intended to punish those who engage in unconscionable consumer practices and the purpose of the counsel-fee provision was to allow the victim “`to attract competent counsel.'” Ibid. (quoting Wanetick v. Gateway Mitsubishi, 163 N.J. 484, 490 (2000)). The panel concluded that plaintiff could withstand Wilshire’s motion for summary judgment and that the trial court improperly determined that the CFA was inapplicable to plaintiff’s claim. Ibid.

We granted defendants’ petition for certification. Gonzalez v. Wilshire Credit Corp., 202 N.J. 347 (2010). We also granted the motions of the New Jersey Attorney General, the New Jersey Bankers Association, and Legal Services of New Jersey to participate as amici curiae.

II.

Defendants contend that that the Appellate Division erred because “a judgment creditor’s agreement to forbear from conducting a sheriff’s sale in exchange for payments” and the servicing of a “mortgage loan” are not covered transactions under the CFA. Generally, they argue that allowing a non-debtor mortgagor who enters into post-foreclosure-judgment settlement agreements to pursue a CFA action against a mortgagee/judgment holder and its servicing agent “will significantly limit the willingness of lenders to workout loans in foreclosure.” Defendants point out that plaintiff is not protected by the FFA because she was not required “to pay the obligation secured by the residential mortgage,” (quoting N.J.S.A. 2A:50-55), and because “the statutory right to cure and reinstate expires upon the entry of final judgment” (citing N.J.S.A. 2A:50-55). Defendants assert that the Appellate Division, without authority, “has essentially granted Diaz’s rights under the loan to [plaintiff].” They also posit that the entry of the foreclosure judgment extinguished the initial mortgage and note, and therefore the agreements between plaintiff and defendants were not loan transactions that would trigger the CFA under New Jersey’s jurisprudence. According to defendants, ample safeguards are available in the chancery court, and plaintiff “is free to pursue common law claims such as breach of contract and/or fraud,” but not a CFA claim.

Amicus New Jersey Bankers Association urges this Court to reverse the Appellate Division for three principal reasons. It claims that the application of the CFA to post-judgment settlement agreements will: 1) undermine New Jersey’s “public policy of encouraging the settlement of litigation”; 2) discourage banks and lenders from settling with homeowners in foreclosure actions, thus threatening this State’s policy of preserving homeownership; and 3) disrupt foreclosure practices in the chancery courts by allowing settlement agreements to be collaterally attacked by CFA lawsuits. It also maintains that the Legislature expressed its intent to leave “post-foreclosure judgment settlements” unregulated by not applying the “cure and default provisions of the FFA” to such settlements.

Plaintiff counters that unconscionable practices by a lender and its servicing agent in the post-foreclosure-judgment setting — for example, agreeing to accept “installment payments to bring a mortgage current” and then misappropriating those payments — constitute violations of the CFA. According to plaintiff, Wilshire fraudulently converted thousands of dollars of mortgage payments, which should have been applied to interest and principal on the loan, to pay for “force placed insurance on a property that was already insured.” Plaintiff asserts that whether the FFA applies to the facts of this case does not control whether the CFA provides specific remedies for the allegedly fraudulent conduct of defendants. Having the right to proceed with a foreclosure sale, but instead choosing to accept tens of thousands of dollars from plaintiff to pay arrears on interest and principal, did not give defendants a license to violate the CFA at plaintiff’s expense. Plaintiff insists that agreements between a homeowner and a lender and its servicing agent following foreclosure do not “preclude CFA coverage” merely because she might have other remedies, such as enforcement or modification of the unfair agreements. In particular, plaintiff notes that the CFA’s attorneys’ fees provision provides plaintiff with a mechanism for securing counsel to combat fraud. By plaintiff’s accounting, lenders and servicing agents will continue to work with homeowners even after foreclosure because it is in their financial interests to do so; they just cannot violate the CFA with impunity.

Amicus Attorney General of New Jersey professes that because mortgage loan servicing is “the subsequent performance of the initial extension of credit,” it therefore is a protected activity under the CFA. The Attorney General notes that “because most residential mortgages are now securitized,” servicing agents, such as Wilshire, manage the loans rather than the originators of those loans. She observes that the role of the servicer is not just to collect mortgage payments, but also to manage defaulted loans, to oversee foreclosure proceedings, and to attempt a restructuring of the loan for the consumer. She also recognizes that “servicers can inflict unwarranted fees” on consumers, such as force-placed insurance, while those consumers have limited ability to contest questionable practices due to the inherent difficulty in “untangling complicated billing and payment histories and identifying improper charges . . . and errors in calculations.” She believes that loan servicers rely on these constraints and expect that a refund and apology will be satisfactory when the “rare borrower does undertake the effort and finds overcharges.” The Attorney General states that servicing abuses have “exacerbated the foreclosure crisis by making it difficult if not impossible for many delinquent borrowers to qualify for viable permanent modifications” of their loans. The Attorney General concludes that there is a cognizable claim under the CFA when a servicing agent of a loan charges impermissible fees and the consumer suffers an ascertainable loss.[10]

Amicus Legal Services of New Jersey urges this Court to apply the remedies available under the CFA to address the “well-documented and widespread” abuses in “mortgage collection practices” that are threatening homeownership among the most vulnerable in our society. Legal Services targets the mortgage servicing agent as the newly formed entity capitalizing from predatory lending. Legal Services explains that under the traditional mortgage-loan model, the original lender retained and serviced the loan. That model has given way to a new reality in which a mortgage loan is sold by the originating lender and then “bundled into a pool of loans” that are sold for investment as a “Residential Mortgage Back Security.” One such example is Cityscape Home Equity Loan Trust 1997-B, Inc.

A servicing agent is retained to perform various duties on behalf of the trust pursuant to a “Pooling and Servicing” agreement.[11] The servicing agent collects and applies loan payments, manages defaulting loans through foreclosure, and engages in loss mitigation.[12] One way in which the servicing agent receives compensation is through the retention of ancillary fees — late fees, expenses related to the handling of defaulted mortgages, and commissions from force-placed insurance.[13] According to Legal Services, the servicing agent “actually profits from default” and has a “financial incentive to impose additional fees on consumers.”[14] Within this industry, documented abuses include “the misapplication of payments; charging fees that are fabricated, unwarranted and/or not contracted for; and engaging in coercive collection practices.”[15] Because there is little regulation of the servicing agents, Legal Services maintains the consumer-protection remedies of the CFA are a critically important monitoring device.

Legal Services asserts that the repayment agreements at issue here constitute the “subsequent performance of the extension of credit,” an activity covered by the CFA. It insists that the foreclosure judgment and agreements do not provide Wilshire with CFA immunity. Unlike typical settlement agreements, the agreement here “flow[s] from the obligations in the original mortgage,” “reflect[s] a forbearance of a right under an existing CFA-covered agreement in which the lender retains all of the rights it already had,” and “the same property that secured the original obligation continues to secure the modified payment obligation.” Legal Services’s central point is that “deterring overreaching in mortgage settlements . . . will enable homeowners to pay their just debts and remain in their homes.”

III.

We must determine whether the manner in which Wilshire secured and executed the post-foreclosure-judgment agreements, as described by plaintiff, constitutes an unconscionable practice prohibited by the CFA. In doing so, we must first define the general purposes and scope of the CFA. Then, we must decide whether plaintiff’s post-judgment agreements to pay the loan arrears, which included late fees and force-placed insurance, in expectation of the reinstatement of the loan, and Wilshire’s collection efforts, are covered by the CFA.

The Consumer Fraud Act, N.J.S.A. 56:8-1 to -195, provides a private cause of action to consumers who are victimized by fraudulent practices in the marketplace. Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010). The Attorney General has independent authority to enforce the CFA. Cox v. Sears Roebuck & Co., 138 N.J. 2, 14-15 (1994). The CFA is intended to “be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud,” Lemelledo v. Beneficial Mgmt. Corp. of Am., 150 N.J. 255, 264 (1997), and therefore to be liberally construed in favor of the consumer, Cox, supra, 138 N.J. at 15. Because the “`fertility'” of the human mind to invent “`new schemes of fraud is so great,'” the CFA does not attempt to enumerate every prohibited practice, for to do so would “severely retard[] its broad remedial power to root out fraud in its myriad, nefarious manifestations.” Lemelledo, supra, 150 N.J. at 265 (quoting Kugler v. Romain, 58 N.J. 522, 543 n.4 (1971)). Thus, to counteract newly devised stratagems undermining the integrity of the marketplace, “[t]he history of the [CFA] [has been] one of constant expansion of consumer protection.” Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 (1997).

A consumer who can prove “(1) an unlawful practice, (2) an `ascertainable loss,’ and (3) `a causal relationship between the unlawful conduct and the ascertainable loss,’ is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees, N.J.S.A. 56:8-19.” Lee, supra, 203 N.J. at 521 (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). An unlawful practice under the CFA is the

use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby.

[N.J.S.A. 56:8-2 (emphasis added).]

The term “advertisement” is defined, in pertinent part, as “the attempt . . . to induce directly or indirectly any person to enter or not enter into any obligation or acquire any title or interest in any merchandise or to increase the consumption thereof or to make any loan.” N.J.S.A. 56:8-1(a) (emphasis added). The term “merchandise” includes “goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J.S.A. 56:8-1(c).

The broad language of these provisions encompasses “the offering, sale, or provision of consumer credit.” Lemelledo, supra, 150 N.J. at 265. Indeed, the term “advertisement” includes within its breadth “the attempt . . . to induce . . . any person . . . to make any loan.” N.J.S.A. 56:8-1(a); accord Lemelledo, supra, 150 N.J. at 265. The CFA applies to such activities as “lending” and the sale of insurance related to the loan. Lemelledo, supra, 150 N.J. at 259-60, 265-66 (noting that CFA covers practice of loan packing, defined as “increasing the principal amount of a loan by combining the loan with loan-related services, such as credit insurance, that the borrower does not want”). More particularly, the CFA has been held to apply to the unconscionable terms of a home improvement loan secured by a mortgage on the borrower’s home, Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254, 264-65, 278-80 (App. Div. 2001), and to the unconscionable loan-collection activities of an assignee of a retail installment sales contract, Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 538 (App. Div. 2008). Accordingly, collecting or enforcing a loan, whether by the lender or its assignee, constitutes the “subsequent performance” of a loan, an activity falling within the coverage of the CFA. Ibid.; accord N.J.S.A. 56:8-2.

Under the CFA, “[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use” of an unconscionable commercial practice may bring a lawsuit seeking, among other things, treble damages. N.J.S.A. 56:8-19 (emphasis added). An ascertainable loss includes, for example, a loss incurred through improper loan packing — forcing a borrower to purchase unnecessary insurance. Cf. Lemelledo, supra, 150 N.J. 259-60, 266.

IV.

In determining whether plaintiff has stated an actionable claim under the CFA, we now apply these principles to the facts before us. We begin by reviewing plaintiff’s status with Cityscape, the initial lender/mortgagee.

A.

Cityscape loaned $72,000 to Monserate Diaz with whom plaintiff co-owned a home. Plaintiff and Diaz secured that loan by mortgaging their home to Cityscape. Clearly, Cityscape’s loan to Diaz was contingent on plaintiff signing the mortgage papers, which listed both as borrowers. Although in any technical sense plaintiff was not a borrower, she was still in a very real sense indebted to Cityscape. The terms of the mortgage obligated plaintiff to surrender her one-half interest in her home in the event of a default and later foreclosure judgment. Plaintiff may not have been personally obligated to pay the loan, but she would not have had a roof over her head unless she did so. A covered activity under the CFA is an “attempt . . . to induce directly or indirectly any person to enter or not enter into any obligation,” N.J.S.A. 56:8-1(a) (defining “advertisement”), concerning “anything offered, directly or indirectly to the public for sale,” N.J.S.A. 56:8-1(c) (defining “merchandise”). As mentioned earlier, the CFA prohibits an “unconscionable commercial practice . . . in connection with the sale or advertisement of any merchandise or real estate.” N.J.S.A. 56:8-2. Extending credit and loan packing are covered by the CFA. Lemelledo, supra, 150 N.J. at 265-66.

We need not address whether Cityscape had a direct relationship with plaintiff, whether called privity or not, that placed plaintiff within the protective ambit of the CFA. See Perth Amboy Iron Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 210-11 (App. Div. 1988) (noting that contractual privity between consumer and seller is not required to bring CFA claim), aff’d o.b., 118 N.J. 249 (1990). What is important is that (1) the assignment of the note and mortgage to U.S. Bank (as trustee for Cityscape Home Equity Loan Trust 1997-B) and the appointment of Wilshire as the servicing agent merely substituted those entities for Cityscape in its relationship with plaintiff and that (2) U.S. Bank through its servicing agent, Wilshire, contracted directly with plaintiff in two separate post-foreclosure-judgment agreements. Those agreements clearly establish privity between plaintiff and U.S. Bank and Wilshire.

B.

The key issue before us is whether the CFA governs extensions of credit after a foreclosure judgment.

After Diaz died in 1999, plaintiff continued to make payments on the loan until hard times came upon her. In 2001, she was laid off from the job she held for seventeen years and sometime afterwards she suffered a heart attack. Given her circumstances, in 2003, she was approved for Social Security disability benefits. That year, U.S. Bank filed a foreclosure complaint, and in 2004 U.S. Bank obtained a judgment in the amount of $80,454.71 plus interest and costs, including $954.55 in attorneys’ fees on the defaulted loan. The chancery court ordered that the mortgaged premises — plaintiff’s home — be sold to satisfy the judgment.

Unquestionably, U.S. Bank had the right to proceed with a sheriff’s sale to satisfy its judgment. Had it done so, plaintiff admittedly would have had no reason to complain. But U.S. Bank and its servicing agent, Wilshire, chose a different path. They decided to give plaintiff the opportunity to reclaim her home conditioned on her satisfying the terms of signed agreements with Wilshire. Plaintiff was required to pay, on a monthly basis, arrearages on the loan, which included built-in foreclosure costs, interest, late fees, counsel fees, and force-placed insurance. For plaintiff, the fulfillment of the agreements held out the prospect of the dismissal of the foreclosure judgment and the probable reinstatement of the loan. In both agreements, defendants stipulated that the foreclosure action would be dismissed when plaintiff became current on the loan.

As a practical matter, both the first and second agreements were nothing more than a recasting of the original loan, allowing Wilshire to recoup for its client, U.S. Bank, past-due payments. As a signatory to the agreement, plaintiff was obligated to make the regular monthly payment of $699.31 plus the additional costs already described. Wilshire as the servicing agent was not acting for selfless purposes; it stood to profit through fees it generated by managing the loan. Both agreements stated that Wilshire’s purpose was “AN ATTEMPT TO COLLECT A DEBT.”

Defendants argue that the post-judgment agreements with plaintiff and Wilshire’s collection activities cannot be denominated as the “subsequent performance” of the loan to Diaz, see N.J.S.A. 56:8-2, because that loan merged into the final foreclosure judgment, see Va. Beach Fed. v. Bank of N.Y., 299 N.J. Super. 181, 188 (App. Div. 1997); Wash. Mut., FA v. Wroblewski, 396 N.J. Super. 144, 149 (Ch. Div. 2007). The cited cases support the general rule that a loan no longer exists after a default leads to the entry of a final judgment. But the doctrine of merger is an equitable principle that requires an examination of all the facts and circumstances, 30A Myron C. Weinstein, New Jersey Practice, Law of Mortgages § 31.36 (2d ed. 2000), and “the presumption of merger” can be overcome if it can be shown that the parties had a contrary intent, Anthony L. Petters Diner, Inc. v. Stellakis, 202 N.J. Super. 11, 18-19 (App. Div. 1985). Moreover, equity cannot be invoked by one with unclean hands to do injustice. See Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 158 (2001). Here, plaintiff counters that the post-judgment agreements treated the initial loan as a continuing debt to be collected, and therefore Wilshire’s “subsequent” unconscionable collection practices fall within the scope of the CFA.[16] We need not decide this issue because ultimately we conclude that the post-judgment agreements, standing alone, constitute the extension of credit, or a new loan, and that Wilshire’s collection activities may be characterized as “subsequent performance” in connection with the extension of credit. See N.J.S.A. 56:8-2 (prohibiting fraud “in connection with” “subsequent performance” of loan).

C.

The post-judgment agreements between plaintiff and Wilshire were not ordinary settlement agreements; they were forbearance agreements. They retained every characteristic of the initial loan — and more. Plaintiff was still paying off $72,000 in principal that Diaz borrowed at an annual interest rate of 11.250 percent. With both agreements, plaintiff was still making the regular monthly payments of $699.31, along with a host of additional charges: late payment fees, foreclosure costs, attorneys’ fees, insurance fees on the subject property, and interest on the arrearages. The May 2004 agreement involved the payment of a lump sum of $17,612.84 and monthly payments of $1,150 for two years. The October 2005 agreement involved the payment of a lump sum of $2,200 and then monthly payments of $1,000. Once plaintiff satisfied the arrearages and made the loan current, the agreements called for the dismissal of the foreclosure action and presumably for the reinstatement of the loan according to its original terms.

To consider Wilshire’s collection activities concerning these post-foreclosure-judgment agreements as something other than “subsequent performance” in connection with a newly minted loan cannot be squared with either the form or the substance of the agreements. Theoretically, plaintiff could have obtained a loan from a bank to pay off U.S. Bank’s judgment under similar terms as set forth in the May 2004 and October 2005 agreements. If Wilshire were the servicing agent on that loan, it could not engage in unconscionable collection practices without offending the CFA. And if that is true, it is hard to countenance an end-run around the CFA by declaring the present agreements to be something other than the “offering, sale, or provision of consumer credit.” See Lemelledo, supra, 150 N.J. at 265.

D.

We roundly reject defendants’ argument that the collection activities of a servicing agent, such as Wilshire, do not amount to the “subsequent performance” of a loan, a covered activity under the CFA. The Attorney General and Legal Services, as amici, both have outlined the abusive collection practices of servicing agents for Residential Mortgage Back Securities. We are in the midst of an unprecedented foreclosure crisis in which thousands of our citizens stand to lose their homes, and in desperation enter into agreements that extend credit — post-judgment — in the hope of retaining homeownership. Defendants would have us declare this seemingly unregulated area as a free-for-all zone, where predatory-lending practices are unchecked and beyond the reach of the CFA. Yet, the drafters of the CFA expected the Act to be flexible and adaptable enough to combat newly packaged forms of fraud and to be equal to the latest machinations exploiting the vulnerable and unsophisticated consumer. See Lemelledo, supra, 150 N.J. at 265; cf. Gennari, supra, 148 N.J. at 604.

The victims of these unsavory practices are most often the poor and the uneducated, and in many circumstances those with little understanding of English, and therefore the “need” for the protections of the CFA is “most acute” in such cases. See Kugler, supra, 58 N.J. at 544. Accepting as we must the evidence in the light most favorable to plaintiff in the procedural context of this case, Wilshire’s alleged exploitation of Blanca Gonzalez placed her on a credit merry-go-round, a never-ending ride driven by hidden and unnecessary fees that would keep her in a constant state of arrearages. Although plaintiff had been represented by a Legal Services attorney during the foreclosure proceedings and the negotiation of the May 2004 post-judgment forbearance agreement, defendants contacted plaintiff directly in September 2005. Plaintiff had missed making several payments after paying off $24,800 under the May 2004 agreement.

Threatening a sheriff’s sale of her home, Wilshire inexplicably negotiated a new agreement directly with the unrepresented plaintiff, who could neither read nor speak English, who had only a sixth-grade education, and who was disabled and on a fixed income. The chancery court had calculated plaintiff’s arrearages as $6,461.89 as of October 2005, and yet defendants had plaintiff sign an agreement setting the arrearages at $10,858.18. Even though plaintiff had made every payment and was current under that second agreement, defendants nevertheless threatened another sheriff’s sale in October 2006. At this time, plaintiff contacted her Legal Services attorney, Ms. Chester, who asked Wilshire to answer a few simple questions. Wilshire could not explain how it had arrived at the $10,858.18 arrearages figure in the October 2005 agreement. It also could not explain how plaintiff’s loan was not current, given that plaintiff had paid $20,569.32 in excess of the regular monthly payments since May 2004.

Within the October 2005 agreement, plaintiff was paying for force-placed insurance that she did not want or need and for defendant’s counsel fees that had not been adequately justified. The $3,346.48 paid by plaintiff for force-placed insurance — another form of loan packing — could constitute an “ascertainable loss” under the CFA. See Lemelledo, supra, 150 N.J. at 259-60, 265-66; Jeff Horowitz, Ties to Insurers Could Land Mortgage Servicers in More Trouble, Am. Banker, Nov. 10, 2010, available at http://www.americanbanker.com/issues/175_216/ties-to-insurers-servicers-in-trouble-1028474-1.html (last visited July 28, 2011) (noting that force-placed insurance is often not only unwarranted but also often costs homeowners ten times more than typical insurance policies).

Lending institutions and their servicing agents are not immune from the CFA; they cannot prey on the unsophisticated, those with no bargaining power, those bowed down by a foreclosure judgment and desperate to keep their homes under seemingly any circumstances.

We do not agree with defendants that the only option available to plaintiff in this case was to seek relief from the post-judgment agreements in the chancery court or “to pursue common law claims such as breach of contract and/or fraud.” Defendants also argue that a number of federal and state statutes regulate the “mortgage lending and servicing” area, but insist that we declare that the CFA is not an available remedy. That we will not do. The CFA explicitly states that the “rights, remedies and prohibitions” under the Act are “in addition to and cumulative of any other right, remedy or prohibition accorded by the common law or statutes of this State.” N.J.S.A. 56:8-2.13; accord Lemelledo, supra, 150 N.J. at 268.

Moreover, Legal Services is only capable of representing a fraction of those low-income consumers who are similarly situated to Blanca Gonzalez,[17] and the Attorney General has limited resources. The CFA was intended to fill that vacuum. One of the important purposes of the CFA’s counsel-fees provision is to provide a financial incentive for members of the bar to become “`private attorneys general.'” Lemelledo, supra, 150 N.J. at 268 (quotation omitted); accord N.J.S.A. 56:8-19. The cumulative-remedies and counsel-fees provisions of the CFA “reflect an apparent legislative intent to enlarge fraud-fighting authority and to delegate that authority among various governmental and nongovernmental entities, each exercising different forms of remedial power.” Lemelledo, supra, 150 N.J. at 269. The poor and powerless benefit from the guiding hand of counsel offered through the CFA.

The equitable and legal remedies available against violators of the CFA, such as the provision for treble damages, reasonable attorneys fees, and costs of suit, N.J.S.A. 56:8-19, also serve another important legislative purpose. That purpose “is not only to make whole the victim’s loss, but also to punish the wrongdoer and to deter others from engaging in similar fraudulent practices.” Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 12 (2004); accord Cox, supra, 138 N.J. at 21.

Defendants and amicus New Jersey Bankers Association also argue that application of the CFA to post-judgment-foreclosure agreements and corresponding collection efforts by servicing agents will discourage work-outs by lenders and lead to sheriff’s sales, thus in the end diminishing not enhancing the prospect of homeownership. They go even further and posit that applying the CFA to the facts of this case will place in jeopardy all settlement agreements. We do not agree.

The CFA is intended to curtail deceptive and sharp practices that victimize or disadvantage consumers in the marketplace, see Lee, supra, 203 N.J. at 521; it is not intended to curtail commerce itself. Defendants have made no showing that the CFA, which applies to myriad business activities, has dampened enthusiasm for the profit motive. Those businesses dealing with the public fairly and honestly, eschewing unconscionable practices, have nothing to fear, except the occasional frivolous lawsuit for which there are separate remedies. See, e.g., N.J.S.A. 2A:15-59.1(a) (permitting costs and attorneys’ fees for frivolous lawsuits). The Legislature already has made the policy decision that the greater good that flows from the remedies available under the CFA outweighs any negligible negative effect that it might have on commerce. Merchants are still selling their wares long after passage of the CFA.

Lenders extend credit to consumers for purchasing automobiles, houses, home improvements, and for numerous other items despite the applicability of the CFA. See Lemelledo, supra, 150 N.J. at 265; Troup, supra, 343 N.J. Super. at 278. We are confident that lenders and their servicing agents will continue to negotiate work-outs even in a post-foreclosure-judgment setting when it is in their interest to do so. Lenders want a return on their capital, not to buy and sell homes.

Plaintiff has made allegations and presented evidence that still must survive the crucible of a trial. Plaintiff must prove that defendants acted contrary to the permissible standard of conduct under the CFA. Cox, supra, 138 N.J. at 18 (“The standard of conduct that the term `unconscionable’ implies is lack of `good faith, honesty in fact and observance of fair dealing.'” (quoting Kugler, supra, 58 N.J. at 544)).

This case in no way suggests that settlement agreements in general are now subject to the CFA. Here, we are dealing with forbearance agreements. This case addresses only the narrow issue before us: the applicability of the CFA to a post-foreclosure-judgment agreement involving a stand-alone extension of credit. We hold only that, in fashioning and collecting on such a loan — as with any other loan — a lender or its servicing agent cannot use unconscionable practices in violation of the CFA.

V.

For these reasons, we affirm the judgment of the Appellate Division vacating the dismissal of plaintiff’s complaint. We therefore reinstate plaintiff’s cause of action under the CFA and remand for proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUSTICES LONG, RIVERA-SOTO and HOENS join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA did not participate.

[1] The parties, the trial court, and the Appellate Division have referred to the post-judgment agreements in this case as “settlement agreements.” The more precise term is “forbearance agreements,” which are agreements to refrain “from enforcing a right, obligation, or debt.” See Black’s Law Dictionary 673 (8th ed. 2004). In summarizing the parties’ arguments and the courts’ opinions, we recite their terminology despite its imprecision.

[2] “A tenancy in common is the holding of an estate by different persons, with a unity of possession and the right of each to occupy the whole in common with the [other]. The interest of a tenant in common may, absent some contractual undertaking, be transferred without the consent of the [other cotentant].” Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 389 N.J. Super. 219, 225 (Ch. Div. 2006) (internal citations omitted); accord Burbach v. Sussex Cnty. Mun. Utils. Auth., 318 N.J. Super. 228, 233-34 (App. Div. 1999); Black’s Law Dictionary 1506 (8th ed. 2004). The death of one tenant does not give a legal right to the whole of the property to the surviving tenant. See Weiss v. Cedar Park Cemetery, 240 N.J. Super. 86, 97 (App. Div. 1990).

[3] We present plaintiff’s best case in this statement of facts. We do so because defendants succeeded on their motion to dismiss plaintiff’s complaint on summary judgment, and therefore we “must view the facts in the light most favorable to the non-moving party” — plaintiff. See Bauer v. Nesbitt, 198 N.J. 601, 604-05 n.1 (2009); R. 4:46-2(c) (stating that party’s motion for summary judgment should be granted when “there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law”). A number of the “facts” presented here are disputed by defendants.

[4] At all times material to plaintiff’s complaint, Wilshire was a wholly owned subsidiary of Merrill Lynch Mortgage Capital, Inc., which in turn was a wholly owned subsidiary of Merrill Lynch & Co., Inc. During the pendency of this case, on January 1, 2009, Bank of America Corporation acquired Merrill Lynch & Co., Inc. and its subsidiaries, including Wilshire. As part of that acquisition, Wilshire’s operations have been merged into and assumed by BAC Home Loan Services, LP, an indirectly wholly owned subsidiary of Bank of America and, effective March 3, 2010, BAC Home Loan Services, LP started servicing plaintiff’s post-foreclosure-judgment loan that is the subject of this appeal.

[5] The record does not indicate whether anyone has come forward asserting an interest in Diaz’s portion of their jointly owned property.

[6] After applying the $11,000 lump sum payment, the balance due was $6,612.84. The $1,150 monthly payments consisted of: $699.31, the current monthly payment as it became due; $34.97, a monthly late fee assessed until the account became current; and $415.72, an amount applied to the fixed arrears.

[7] Based on plaintiff’s review of discovery, a substantial amount of her arrears was attributable to legal fees supposedly incurred by defendants. Plaintiff complains that, because the services for those fees are not adequately described, the legitimacy of the fees cannot be determined.

[8] Force-placed insurance is insurance procured by a lending institution on collateral pledged by a borrower if the borrower fails to maintain adequate coverage. Brannon v. Boatmen’s First Nat’l Bank of Okla., 153 F.3d 1144, 1145-46 (10th Cir. 1998). The costs related to the force-placed insurance are added to the borrower’s account. Ibid.

[9] Under the Fair Foreclosure Act,

at least thirty days prior to the filing of a complaint in foreclosure, a mortgage debtor must be given a written notice, among other things, of the intent to foreclose, stating the obligation or real estate security interest; the nature of the default claimed; the right of the debtor to cure the default; the sum of money and interest required to cure the default; the date by which the default must be cured to avoid institution of foreclosure proceedings; and the right to cure after foreclosure proceedings have been commenced.

[Gonzalez, supra, 411 N.J. Super. at 589 (citing N.J.S.A. 2A:50-56).]

[10] At oral argument, the Attorney General argued that plaintiff had an actionable CFA claim under either a theory that the agreements were generated from the original loan and the collection efforts were “subsequent performance” on the loan, or under a theory that the settlement agreements were entirely new extensions of credit.

[11] (Citing Robo-Signing, Chain of Title, Loss Mitigation, and Other Issues in Mortgage Servicing: Before the House Financial Services Committee Subcommittee on Housing and Community Opportunity, 111th Cong. 6 (2010) (written testimony of Adam J. Levitin, Associate Professor of Law, Georgetown University Law Center)).

[12] (Citing ibid.).

[13] (Citing id. at 15; Jeff Horowitz, Ties to Insurers Could Land Mortgage Servicers in More Trouble, Am. Banker, Nov. 10, 2010, available at http://www.americanbanker.com/issues/175_216/ties-to-insurers-servicers-in-trouble-1028474-1.html (last visited July 28, 2011)).

[14] (Citing Robo-Signing, supra note 10, at 15).

[15] (Generally citing Katherine Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims, 87 Tex. L. Rev. 121 (2008); National Consumer Law Center, Foreclosures: Defenses, Workouts and Mortgage Servicing (3d ed. 2010)).

[16] Plaintiff points out that under New Jersey’s Foreclosure Mediation program, as an alternative to the foreclosure of property, modification of a loan through mediation can be requested even after the entry of final judgment, up until the time of the sheriff’s sale. Administrative Office of the Courts, New Jersey Foreclosure Mediation (2009), available at http://www.judiciary.state.nj.us/civil/ foreclosure/11290_foreclosure_med_info.pdf. With this example, plaintiff contends that a foreclosure judgment may not extinguish a mortgage loan if the lender forbears from proceeding to a sheriff’s sale.

[17] “[T]wo hundred thousand eligible people do seek help from Legal Services each year. Because of inadequate resources, two-thirds must be turned away.” Legal Services of New Jersey, The Civil Justice Gap: An Inaugural Annual Report 5 (2011), available at http://www.lsnj.org/PDFs/The_Civil_Justice_Gap_2011.pdf.

[ipaper docId=63897743 access_key=key-qax2pkby3j2p7f94a7f height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (3)

Fannie Mae promises to keep families in homes, but instead pressures banks to foreclose

Fannie Mae promises to keep families in homes, but instead pressures banks to foreclose


StopForeclosureFraud received a similar memo from Fannie to GMAC, but this one addressed to JPMorgan Chase [see below]

Feep.com

In early December, a senior executive at Fannie Mae assured members of the Senate Banking Committee in Washington that the mortgage giant was doing everything possible to address the foreclosure crisis.

“Preventing foreclosures is a top priority for Fannie Mae,” Terence Edwards, an executive vice president, told the panel. “Foreclosures hurt families and destabilize communities.”

[FREEP]

“Smoking Gun” letter sent anonymously to SFF.

[ipaper docId=62341295 access_key=key-1zzfc9ir38wa0blrtyg7 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (0)

DIXON v. WELLS FARGO | MASS. Dist. Court “Promissory Estoppel, A prompt trial of this case is thus absolutely crucial”

DIXON v. WELLS FARGO | MASS. Dist. Court “Promissory Estoppel, A prompt trial of this case is thus absolutely crucial”


FRANK T. DIXON; DEANA M. DIXON, Plaintiffs,

v.

WELLS FARGO BANK, N.A. formerly known as WACHOVIA MORTGAGE, FSB formerly known as WORLD SAVINGS BANK, FSB, Defendant.

Civil Action No. 11-10368-WGY.

United States District Court, D. Massachusetts.

July 22, 2011.

MEMORANDUM AND ORDER

WILLIAM G. YOUNG, District Judge.

I. INTRODUCTION

Frank and Deana Dixon (collectively “the Dixons”) bring this cause of action against Wells Fargo Bank, N.A. (“Wells Fargo“), seeking (1) an injunction prohibiting Wells Fargo from foreclosing on their home; (2) specific performance of an oral agreement to enter into a loan modification; and (3) damages. Wells Fargo, having removed the action from state court, now moves for dismissal of the Dixons’ complaint under Fed. R. Civ. P. 12(b)(6), arguing that the allegations are insufficient to invoke the doctrine of promissory estoppel and that, to the extent the Dixons have stated a state-law claim, it is preempted by the Home Owners’ Loan Act (“HOLA”), 12 U.S.C. §§ 1461-1700, and its implementing regulations, 12 C.F.R. §§ 500-99.

[…]

Undoubtedly, the claim that Wells Fargo failed to uphold a promise to consider the Dixons for a loan modification relates to Wells Fargo’s “servicing” of the mortgage. See 12 C.F.R. § 560.2(b)(10). But the standard for express preemption is more than “relates to.” See Coffman, 2010 WL 3069905, at *6 (citing In re Ocwen Loan Servicing, 491 F.3d at 643-44). The claim must “purport[] to impose requirements” regarding loan servicing for express preemption to apply. 12 C.F.R. § 560.2(b). Here, the Dixons do not aim to impose any substantive requirement on the loan modification process used by Wells Fargo, in particular, or federal savings banks, in general. Coffman, 2010 WL 3069905, at *9. The promissory estoppel claim seeks not to attack Wells Fargo’s underlying loan servicing policies and practices, but rather to hold the lender to its word, on which the Dixons relied to their detriment. Enforcement of Wells Fargo’s promise merely requires the lender to deal fairly and honestly, which no more burdens those lending operations listed in paragraph (b) than it does everyday business transactions. Bishop, 2010 WL 4115463, at *5 (“[R]equiring a bank to perform the obligations of its contract in good faith implicates none of the concerns embodied in HOLA.”); see Morse v. Mutual Fed. Sav. & Loan Ass’n of Whitman, 536 F. Supp. 1271, 1281 (D. Mass. 1982) (Aldrich, J.) (“An award of Chapter 93A exemplary damages against defendant would no more threaten the ability of federal savings and loan associations to perform their functions in the Commonwealth than it would state-chartered savings and loan associations, or other corporations subject to the statute.”). “Only claims that are specific to a defendant’s lending activities, as distinguished from legal duties applicable to all businesses, are preempted by HOLA.” Cuevas v. Atlas Realty/Fin. Servs., Inc., No. C 07-02814 JF, 2008 WL 268981, at *3 (N.D. Cal. Jan. 30, 2008).

Turning to paragraph (c) of section 560.2, the Dixons’ promissory estoppel claim “affect[s] lending businesses, just as [it would] affect any other business that enters into contracts or makes representations during the course of its operations.” Gibson, 128 Cal. Rptr. 2d at 28. Because it has some effect on lending, a presumption of preemption arises. 61 Fed. Reg. at 50966. This presumption is rebutted here, however, because promissory estoppel, as a state common-law doctrine of general applicability, is “not designed to regulate lending and do[es] not have a disproportionate or otherwise substantial effect on lending.” Gibson, 128 Cal. Rptr. 2d at 28-29. All businesses, not just federal savings associations, are subject to the predicate duty that the Dixons seek to enforce — a duty to honor promises made. Compliance with that duty would not require Wells Fargo to alter its loan modification program, or any substantive aspect of its approach to servicing loans, but it would ensure that consumers like the Dixons reasonably could rely on their lenders’ statements without suffering harm as a result.

With the national housing market once again rattled by an overwhelming number of foreclosures, other federal courts have been grappling recently with the preemption issue in cases factually indistinguishable from the present one. Yet, no consensus has emerged with respect to HOLA’s reach. In DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390-LHK, 2011 WL 311376 (N.D. Cal. Jan. 28, 2011), for example, the plaintiffs had complied with the steps required by Wells Fargo for a loan modification, which they had been assured would be successful, when abruptly and without warning they lost their home to foreclosure. Id. at *1-2. The court held that the plaintiffs’ intentional misrepresentation claim against Wells Fargo was not preempted by HOLA because it “d[id] not attempt to impose substantive requirements regarding loan terms, disclosures, or servicing or processing procedures.” Id. at *7. Similarly, in Becker v. Wells Fargo Bank, N.A., No. 2:10-cv-02799 LKK KJN PS, 2011 WL 1103439 (E.D. Cal. Mar. 22, 2011), where the plaintiff “allege[d] that he was promised a modification even though [the lender] never intended to modify his loan or seriously consider his application,” the court concluded that the “plaintiff’s fraud claim appears to arise from a more `general duty not to misrepresent material facts,’ and therefore it does not necessarily regulate lending activity.” Id. at *8-9.[9] In contrast, however, the court in Zarif v. Wells Fargo Bank, N.A., No. 10cv2688-WQH-WVG, 2011 WL 1085660 (S.D. Cal. Mar. 23, 2011), held that the plaintiffs’ state-law claims, including intentional misrepresentation, negligent misrepresentation, and promissory estoppel, were preempted by HOLA because they “specifically challenge the processing of Plaintiffs’ loan modification application and servicing of Plaintiffs’ mortgage.” Id. at *3.[10] There, like here, the plaintiffs faced foreclosure after following Wells Fargo’s instruction to stop making their payments while waiting for their loan modification application to be processed.

[…]

It is said that talk is cheap. The Dixons’ allegations are easy to make, yet until their veracity is put to the test, foreclosure is inappropriate. But just as the homeowner ought not suffer a wrongful foreclosure, so too the bank has an equal and proper interest in realizing on its mortgage security by putting the home on the market at a foreclosure sale, selling it to a viable buyer, and lending the funds derived to other potential home buyers. This case is but a microcosm of much larger economic issues; to a significant extent, our national economy may depend upon promptly sorting out the issues raised here. Clogging the operation of the mortgage foreclosure system with court delay simply will not work. Either individual rights will be submerged, and people will lose their homes unlawfully, or home mortgage liquidity will atrophy, the larger economy will suffer, and potential home buyers will be denied homeownership, although financially able to support mortgage payments.

A prompt trial of this case is thus absolutely crucial. Here in Massachusetts, this federal district court — one of the most productive in the country, United States v. Massachusetts, Civil Action No. 09-11623-WGY, slip op. at chart, ECF. No. 134-1 (D. Mass. May 4, 2011) (Massachusetts is one of “America’s Most Productive federal district courts”) — can provide such a trial.[11]

Accordingly, this case is ordered placed on the September running trial list,[12] and the parties shall be ready for trial on Tuesday, September 6, 2011.

SO ORDERED.

[ipaper docId=61339176 access_key=key-2b4u58od93xu6gigg5xt height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

DEUTSCHE BANK TRUST Co. of Am. V. DAVIS | NYSC “Smoke and Mirrors, Assignment Flawed?, Genuineness of plaintiff’s possession of the mortgage?, Plaintiff Atty Sanctioned, HAMP”

DEUTSCHE BANK TRUST Co. of Am. V. DAVIS | NYSC “Smoke and Mirrors, Assignment Flawed?, Genuineness of plaintiff’s possession of the mortgage?, Plaintiff Atty Sanctioned, HAMP”


Decided on June 29, 2011

Supreme Court, Kings County

Deutsche Bank Trust Company of America as Trustee for RALI 2006QS10, Plaintiffs,

against

Charmaine Davis, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR HOMECOMINGS FINANCIAL NETWORK, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, MR. DAVIS, ET AL., Defendants.

EXCERPTS:

4210/09

Herbert Kramer, J.

The following papers have been read on this motion:

Notice of Motion/Order to Show Cause/Papers Numbered

Petition/Cross Motion and

Affidavits (Affirmations) Annexed

Opposing Affidavits (Affirmations)

Reply Affidavits (Affirmations)

_______________(Affirmation)_

Other Papers

Are parties required to negotiate in good faith during the foreclosure settlement conferences?In light of the state and federal statutes, particularly CPLR §3408, this Court holds that not only are the parties required to come to this Court in good faith, but also to negotiate in good faith towards creation of a mutually satisfactory modification agreement.

[…]

Therefore, this Court stays the entire matter until such time as the plaintiff moves the Court to resume negotiations in good faith.[FN2] Additionally, plaintiff’s attorney is sanctioned 50% of interest due to the plaintiff from April 23, 2009, the date of first HAMP conference, until June 3, 2011, the date of the parties appearance in Part 13, due to delay directly attributable to plaintiff. Further, defendant is directed to pay $3,000 per month [FN3] to the County Clerk until the stay is lifted or the [*3]amount of the mortgage repaid.[FN4]

As a final note, the record reflects that there is a question as to the genuineness of plaintiff’s possession of the mortgage, and the possession of the mortgage at the inception of this action. There is indication that the assignments may have been flawed. It is this Court’s position that the plaintiff, who assigns and receives mortgages with reasonable frequency, cannot avoid the obligations of the state and federal statutes by the continued sale and transfer of mortgages. This Court will not be a willing participant in plaintiff’s smoke and mirrors.

[…]

[ipaper docId=59614204 access_key=key-2vhx8k0obitntmvbrh3 height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

Proposed class-action lawsuit alleging breach of contract by Bank of America NA and subsidiary BAC Home Loans Servicing LP

Proposed class-action lawsuit alleging breach of contract by Bank of America NA and subsidiary BAC Home Loans Servicing LP


AP-

LOS ANGELES (AP) —It seemed Maria Campusano’s financial problems were behind her when the mortgage on her Victorian home in a Massachusetts mill town was chopped by hundreds of dollars a month.

She soon learned that her troubles had just begun.

Weeks after making her first payment under the new rate, the school district staffer began receiving past-due notices, documents showing wildly inaccurate loan balances and letters threatening foreclosure. She now fears she’ll lose her home.

“How can they take away what I have worked so hard for?” Campusano said.

Campusano is one of two named plaintiffs in a proposed class-action lawsuit alleging breach of contract by Bank of America NA and subsidiary BAC Home Loans Servicing LP.

Continue reading [THE ASSOCIATED PRESS]

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



Posted in STOP FORECLOSURE FRAUDComments (2)

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com
Advertise your business on StopForeclosureFraud.com

Archives