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BUREAU OF CONSUMER FINANCIAL PROTECTION: Interim Final Rule – Real Estate Settlement Procedures Act (Regulation X)

BUREAU OF CONSUMER FINANCIAL PROTECTION: Interim Final Rule – Real Estate Settlement Procedures Act (Regulation X)


BUREAU OF CONSUMER FINANCIAL PROTECTION

12 CFR Part 1024

[Docket No. CFPB-2011-0030]
RIN 3170-AA06

Real Estate Settlement Procedures Act (Regulation X)

AGENCY: Bureau of Consumer Financial Protection.

ACTION: Interim final rule with request for public comment.

SUMMARY: Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) transferred rulemaking authority for a
number of consumer financial protection laws from seven Federal
agencies to the Bureau of Consumer Financial Protection (Bureau) as of
July 21, 2011. The Bureau is in the process of republishing the
regulations implementing those laws with technical and conforming
changes to reflect the transfer of authority and certain other changes
made by the Dodd-Frank Act. In light of the transfer of the Department
of Housing and Urban Development’s (HUD’s) rulemaking authority for the
Real Estate Settlement Procedures Act (RESPA) to the Bureau, the Bureau
is publishing for public comment an interim final rule establishing a
new Regulation X (Real Estate Settlement Procedures Act). This interim
final rule does not impose any new substantive obligations on persons
subject to the existing Regulation X, previously published by HUD.

DATES: This interim final rule is effective December 30, 2011. Comments
must be received on or before February 21, 2012.

ADDRESSES: You may submit comments, identified by Docket No. CFPB-2011-
0030 or RIN 3170-AA06, by any of the following methods:
Electronic: http://www.regulations.gov. Follow the
instructions for submitting comments.

Mail: Monica Jackson, Office of the Executive Secretary,
Bureau of Consumer Financial Protection, 1500 Pennsylvania Ave. NW.,
(Attn: 1801 L Street), Washington, DC 20220.

Hand Delivery/Courier in Lieu of Mail: Monica Jackson,
Office of the Executive Secretary, Bureau of Consumer Financial
Protection, 1700 G Street NW., Washington, DC 20006.

All submissions must include the agency name and docket number or
Regulatory Information Number (RIN) for this rulemaking. In general,
all comments received will be posted without change to http://www.regulations.gov. In addition, comments will be available for public inspection and copying at 1700 G Street NW., Washington, DC 20006, on
official business days between the hours of 10 a.m. and 5 p.m. Eastern
Time. You can make an appointment to inspect the documents by
telephoning (202) 435-7275.

All comments, including attachments and other supporting materials,
will become part of the public record and subject to public disclosure.
Sensitive personal information, such as account numbers or social
security numbers, should not be included. Comments will not be edited
to remove any identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Joseph Devlin or Jane Gao, Office of
Regulations, at (202) 435-7700.

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NAILTA Files Amicus Brief in U.S. Supreme Court – EDWARDS v. FIRST AMERICAN

NAILTA Files Amicus Brief in U.S. Supreme Court – EDWARDS v. FIRST AMERICAN


The National Association of Independent Land Title Agents (NAILTA) filed an Amicus Brief in the Edwards v. First American case currently pending in the U.S. Supreme Court.  The brief is filed in support of Denise Edwards, the Respondent, a consumer who closed a real estate transaction in Cleveland, Ohio with the Petitioner, First American.  A copy of the brief is embedded below.  Oral arguments for the case are set for November 28, 2011.

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IN RE CHALGREN, Bankr. Court, ND California “Lender Processing Services admits faults in the documents produced by the DOCX office”

IN RE CHALGREN, Bankr. Court, ND California “Lender Processing Services admits faults in the documents produced by the DOCX office”


NOTE: Korell Harp misspelled, also see signature variations below.

In re: RICHARD AND KAREN CHALGREN, Chapter 13, Debtors.
RICHARD AND KAREN CHALGREN, Plaintiffs,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ET AL., Defendants.

Case No. 09-56729 ASW, Adv. Proc. No. 10-5057.
United States Bankruptcy Court, N.D. California.
October 7, 2011.

MEMORANDUM DECISION ON MOTIONS TO DISMISS

ARTHUR S. WEISSBRODT, Bankruptcy Judge.

Before this Court are two motions to dismiss the First Amended Complaint of debtors Richard Scott Chalgren and Karen Chalgren (” Plaintiffs”). For the following reasons, this Court grants Defendants’ motions with leave to amend with regard to the first, second, third, and sixth causes of action. This Court denies Defendants’ motions to dismiss with regard to the fifth cause of action and grants the motions in part with regard to the fourth cause of action.

This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.

A. PROCEDURAL HISTORY

Plaintiffs initiated this adversary proceeding on February 25, 2010. On July 27, 2010, defendants American Home Mortgage Corp. d/b/a American Brokers Conduit and AHM SV, Inc. f/k/a American Home Mortgage Servicing, Inc. filed a Suggestion of Bankruptcy in this adversary proceeding. Prior motions to dismiss were granted in part and denied in part at a hearing on September 20, 2010. Plaintiffs filed an amended complaint on November 2, 2010 (“First Amended Complaint”). The First Amended Complaint alleges six causes of action. The first cause of action is for violation of California Civil Code section 2923.5. The second cause of action is for violation of Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (“RESPA”). The third cause of action is for violation of the automatic stay of the Bankruptcy Code. The fourth cause of action is for declaratory relief. The fifth cause of action is for injunctive relief. The sixth cause of action is for cancellation of the deed of trust and other instruments and records.

On November 16, 2010, Defendants Deutsche Bank National Trust Company, Deutsche Bank National Trust Company as Trustee of the GSR Mortgage Loan Trust 2006-OA1 (“Deutsche Bank as Trustee”), and American Home Mortgage Servicing, Inc. (“AHMSI”) filed a motion to dismiss the First Amended Complaint (“First Motion to Dismiss”). On November 29, 2010, Defendants Fidelity National Title Company and Default Resolution Network filed a motion to dismiss the First Amended Complaint (“Second Motion to Dismiss”).

The First Motion to Dismiss asserts that Plaintiffs’ response to the First Motion to Dismiss should not be considered by this Court because the response is late-filed, and that Plaintiffs have failed to meet the pleading requirements of Federal Rule of Civil Procedure 8(a). Both motions to dismiss also allege that the First Amended Complaint should be dismissed on the merits for various reasons.

Regarding the purported late-filing of Plaintiffs’ response to the First Motion to Dismiss, the hearing on the First Motion to Dismiss was originally set for December 16, 2010, meaning that Plaintiffs’ response should have been filed by December 2, 2010. No such response was filed. On December 6, 2010, Plaintiffs filed an opposition to a motion for relief from stay with a caption containing this adversary proceeding’s number. On December 10, 2010, pursuant to an amended notice of hearing, the hearing on the First Motion to Dismiss was continued to January 14, 2011. Plaintiffs’ response was filed on December 30, 2010, which is timely under the local rules with respect to the continued hearing date. While Plaintiffs should abide in the future with the deadlines set out in the local rules, there is no prejudice such that the First Amended Complaint should be dismissed and the merits of Plaintiffs’ opposition ignored.

In Plaintiff’s opposition filed on December 30, 2010, Plaintiffs agreed to amend the First Amended Complaint with regard to the first, second, and third causes of action in response to the motions of defendants Fidelity National Title Company, Default Resolution Network, Deutsche Bank National Trust Company, Deutsche Bank as Trustee, and AHMSI (collectively,” Defendants”), as well as to delete the sixth cause of action. The Court held a hearing on both motions to dismiss on January 14, 2011.

At the hearing on January 14, 2011, the Court provided the parties with the Suggestion of Bankruptcy filed by American Brokers Conduit and American Home Mortgage Servicing, Inc. in this adversary proceeding and asked the parties to submit supplemental briefs regarding why the motions to dismiss should proceed notwithstanding the automatic stay of the bankruptcy case of Defendant American Brokers Conduit. The matter was continued to March 1, 2011 with the parties to file a joint statement prior to the hearing.

On February 18, 2011, the parties filed a joint statement which the Court reviewed. The Court subsequently issued an order on February 23, 2011 taking the motions to dismiss off calendar without prejudice to being restored upon the filing of appropriate legal authority and/or declarations showing that this Court can proceed notwithstanding the automatic stay in Defendant American Brokers Conduit’s bankruptcy case.

On May 2, 2011, Plaintiffs dismissed American Brokers Conduit from this adversary proceeding. The motions to dismiss were re-set for hearing on June 30, 2011 at a Case Management Conference held on May 6, 2011. The June 30, 2011 hearing was continued to July 14, 2011 by stipulation of the parties. The July 14, 2011 hearing was taken off calendar to allow the Court to issue a written decision.

Meanwhile, on May 18, 2011, attorney Mitchell Abdallah substituted in as counsel for Plaintiffs.

On July 11, 2011, Plaintiffs filed a Second Amended Complaint.[1] The Second Amended Complaint named American Brokers Conduit as a defendant and did not make any substantive changes to the third, fourth, or sixth causes of action that Plaintiffs had said would be made. The Court suggests that if Plaintiffs file another amended complaint, Plaintiffs should consider that it appears to the Court that the bankruptcy case of American Brokers Conduit, case number 07-11051, is still pending in the District of Delaware. Plaintiffs should also consider that: (1) a cause of action under the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (” RESPA”) should specify which section(s) of RESPA Defendants allegedly violated; and (2) Plaintiffs should allege sufficient facts about the contents of Plaintiffs’ alleged letters to AHMSI to show that the letters qualify as “qualified written requests” under RESPA.

B. FACTUAL BACKGROUND

The following facts are drawn from the First Amended Complaint, as alleged by Plaintiffs, but have not yet been proven. On or about April 4, 2006, Plaintiffs obtained a home loan and executed a promissory note in favor of American Brokers Conduit. The note was secured by a deed of trust on 411 Quail Run in Aptos, California (the “Property”). Defendant Mortgage Electronic Registration Systems (“MERS”) was listed as the beneficiary of the deed of trust, but MERS never held the note.

On February 1, 2009, Plaintiff Richard Chalgren became unable to work due to a physical disability and suffered a loss of income. Plaintiffs were unable to make the monthly payment on the note. Plaintiffs wrote letters to the loan servicer, AHMSI, requesting the name, address, and telephone number of the holder of the note and the name and address of any agent of the holder of the note which could discuss loan modification options with Plaintiffs. However, AHMSI did not respond to Plaintiffs’ letters and still, to this day, has failed to respond to Plaintiffs’ letters. The failure of AHMSI to respond caused Plaintiffs to suffer emotional distress.

On May 5, 2009, AHMSI, Default Resolution Network, and Fidelity National Title Company acted in concert to cause a notice of default to be recorded in the official records of the county of Santa Cruz. The notice of default falsely stated that Default Resolution Network had contacted Plaintiffs before the notice of default was recorded as required by California Civil Code section 2923.5.

On June 25, 2009, MERS as nominee for defendant American Brokers Conduit assigned the deed of trust to Deutsche Bank as Trustee. Kolrell Harper signed this document on June 30, 2009 as Vice President of MERS. The assignment was produced by defendant DOCX, LLC which is a subsidiary of defendant Lender Processing Services. Lender Processing Services has admitted that there were faults in the documents produced by the DOCX office and Plaintiffs are informed and believe that there was widespread document fraud.

The note was bundled into a pool of home mortgages which were securitized and sold to investors. At the time the note was assigned to the trust, the trust was closed. Also, at the time of the assignment, American Brokers Conduit was in a Chapter 11 bankruptcy proceeding, but the assignment was made without approval from the bankruptcy court overseeing the American Brokers Conduit bankruptcy case.

On July 6, 2009, an instrument was recorded in the official records of the county of Santa Cruz purporting to be an assignment of the deed of trust from MERS to Deutsche Bank National Trust Company.

On July 17, 2009, Plaintiffs sent demand letters via certified mail to Defendants pursuant to RESPA, wherein Plaintiffs requested the name of the holder of the note or the agent for such holder with authority to discuss loan modifications. Defendants have failed to respond to those demand letters, causing Plaintiffs to be unable to communicate with anyone with the authority to modify Plaintiffs’ loan and threatening Plaintiffs with the loss of Plaintiffs’ home of 15 years.

On August 14, 2009, Plaintiffs filed this chapter 13 bankruptcy petition.

On September 4, 2009, defendants Fidelity National Title Company, AHMSI, and Power Default Services acted in concert to cause a notice of trustee’s sale to be recorded in the official records of the county of Santa Cruz in violation of the automatic stay. This recordation caused Plaintiffs emotional distress.

C. LEGAL STANDARD

The Ninth Circuit has stated that the standard of review for motions to dismiss is:

The nature of dismissal requires us to accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs. However we are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not . . . necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citations and internal quotations omitted).

D. ANALYSIS

The First Motion to Dismiss asserts that the First Amended Complaint fails to differentiate between Defendants in violation of Federal Rule of Civil Procedure 8 (a), as incorporated by Federal Rule of Bankruptcy Procedure 7008. The Court has reviewed the First Amended Complaint and has determined that the First Amended Complaint identifies the transactions giving rise to the causes of action and puts each Defendant on notice of each Defendant’s alleged conduct. The First Motion to Dismiss is denied on this basis.

(1) Plaintiffs’ First Cause of Action

The first cause of action is against AHMSI, Default Resolution Network, and Fidelity National Title Company for violation of California Civil Code section 2923.5. Plaintiffs assert that Default Resolution Network did not contact Plaintiffs about alternatives to foreclosure prior to recording the notice of trustee’s sale. The First Amended Complaint only requests damages for this statutory violation.

The First Motion to Dismiss asserts that Plaintiffs need to allege tender before obtaining a postponement of the foreclosure sale. However, the case of Mabry v. Superior Court, 185 Cal. App. 4th 208, 214 (2010), relied on by Defendants, explicitly held that tender was not required to postpone a foreclosure sale under California Civil Code section 2923.5. Mabry, 185 Cal. App. 4th at 213. In any event, Plaintiffs are only required to allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances existed that conditioning rescission on any tender would be inappropriate. Mangindin v. Washington Mutual Bank, 637 F. Supp. 2d 700, 706 (N.D. Cal. 2009).

However, as conceded by Plaintiffs, the remedy for a violation of California Civil Code section 2923.5 is not damages, but a postponement of the foreclosure sale to allow such communications to take place. Mabry, 185 Cal. App. 4th at 214. Because the requested damages are not available, this Court dismisses this cause of action with leave to amend.

(2) Second Cause of Action

The second cause of action is against AHMSI for violation of RESPA for failure to respond to Plaintiffs’ letters requesting information relating to the identity of the holder of the note and such holder’s authorized agent. Plaintiffs have not provided copies of the letters to this Court. The First Motion to Dismiss asserts that Plaintiffs need to specify which section of RESPA AHMSI allegedly violated, and Plaintiffs have indicated, in Plaintiffs’ opposition to that motion, that Plaintiffs plan to specify 12 U.S.C. section 2605(f)(1) in any amended complaint.

While the First Motion to Dismiss asserts that the First Amended Complaint fails to allege damages caused by AHMSI’s failure to respond, the First Amended Complaint’s statement of facts alleges that the failure of AHMSI to respond caused Plaintiffs great emotional distress. This Court notes that the courts are divided on whether emotional distress damages are recoverable under section 2605(f)(1). Compare Allen v. United Financial Mortg. Corp., 660 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009), with Espinoza v. Recontrust Co., N.A., 2010 WL 2775753, *4 (S.D. Cal. July 13, 2010). However, this Court will not decide this legal issue at the pleading stage. Therefore, the cause of action is not dismissed on this basis.

The First Motion to Dismiss also asserts that Plaintiffs’ letters do not qualify as “Qualified Written Requests” under RESPA. The statute defines a Qualified Written Request as either (1) a letter saying that the account is in error, or (2) a letter requesting other information. 12 U.S.C. § 2605(e)(1)(b). The RESPA statute provides that a response is required when the letter requests information relating to the servicing of the loan. 12 U.S.C. § 2605(e) (1) (a). Servicing is defined as: “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” 12 U.S.C. § 2605(i).

While the First Motion to Dismiss asserts that Plaintiffs must allege that the letters stated that the account was in error, the statute defining what constitutes a Qualified Written Response is written in the disjunctive, and Plaintiffs have asserted that the letters contained requests for other information. This Court agrees with United States District Judge Fogel’s reading of 12 U.S.C. § 2605(e)(1)(b) found in Luciw v. Bank of America, N.A., 2010 WL 3958715, *3 (N.D. Cal. Oct. 7, 2010), which holds that a letter can be a Qualified Written Request even if the letter does not state that the account is in error. The Court notes that the statute does not clearly state that a letter is not a Qualified Written Response if the letter requests information both about the servicing of the loan and information not related to the servicing of the loan. Luciw, 2010 WL 3958715 at *3.

However, the First Amended Complaint fails to allege sufficient facts about the contents of the letters to show that Plaintiffs’ letters were related to the servicing of the loan such as to give rise to a statutory obligation by AHMSI to respond. The First Amended Complaint alleges that the letters request the identity of the holder of the note or such holder’s agent, which does not appear to relate to the receipt or application by AHMSI of periodic payments received from Plaintiffs. While Plaintiffs’ December 6, 2010 opposition to a motion for relief from stay provides a copy of the letter sent by Plaintiffs to Defendants, the Court is not considering that letter at this time because the letter was not incorporated into the First Amended Complaint.

The Court dismisses the second cause of action with leave to amend.

(3) Third Cause of Action

The third cause of action is against Fidelity National Title Company and AHMSI for violation of the automatic stay pursuant to Bankruptcy Code section 362(k). While the Second Motion to Dismiss asserts that this cause of action should be dismissed for failure to allege conduct rising to a requisite level of outrageousness, the determination of outrageousness is a factual issue, and the case relied upon in the Second Motion to Dismiss is a California state law case not involving Bankruptcy Code section 362(k).

However, both motions to dismiss assert that the First Amended Complaint fails to allege that the two defendants willfully violated the automatic stay. Bankruptcy Code section 362(k) clearly requires a willful violation. In re Bloom, 875 F.2d 224, 227 (9th Cir. 1989). The First Amended Complaint contains no allegations of willfulness and/or knowledge of the bankruptcy case on the part of Fidelity National Title Company and/or AHMSI, and Plaintiffs have indicated that Plaintiffs plan to amend the First Amended Complaint to so allege. The Court dismisses the third cause of action with leave to amend.

(4) Fourth Cause of Action

The fourth cause of action is against all Defendants for declaratory relief. The First Amended Complaint requests the following declaratory relief: (1) a finding that the deed of trust is unenforceable because the deed of trust was severed from the note, rendering the note unsecured; (2) a finding that the notice of default is void because the deed of trust was unenforceable; (3) a finding that assignment of the deed of trust to Deutsche Bank as Trustee is of no effect because the assignment was (a) made while American Brokers Conduit was in bankruptcy and (b) made after the securitized trust had closed; and (4) a finding that the notice of trustee’s sale is void for being in violation of the automatic stay. This cause of action does not request that the note and deed of trust be rescinded or otherwise set aside.

Both motions to dismiss assert that the fourth cause of action must be dismissed because the First Amended Complaint fails to allege that Plaintiffs either have tendered, or can tender, the amount of the outstanding loan balance. All but one of the cases cited by Defendants are cases in which a party requested quiet title or declaratory relief rescinding a loan contract, and those cases are not applicable.

The reasoning of Chavez v. Recontrust Co., 2008 WL 5210893 (E.D. Cal. Dec. 11, 2008), is not disposative here and this Court does not agree with it in any event. In Chavez, a plaintiff requested — among other things — an injunction against a foreclosure sale without either alleging that the plaintiff had tendered, or was able to tender, the amount outstanding on the loan. The Chavez court held: “[t]he law is long-established that a trustor or his successor must tender the obligation in full as a prerequisite to challenge of the foreclosure sale.” Chavez, 2008 WL 5210893 at *6 (quoting U.S. Cold Storage v. Great Western Savings & Loan Assn., 165 Cal. App. 3d 1214, 1222, (1985)). The quoted language is inapposite because the language of U.S. Cold Storage refers to an attempt to undo a foreclosure sale after the fact, rather than a request for declaratory relief based on a finding that a foreclosure sale cannot proceed because the wrong party is seeking to foreclose.

In the context of Truth in Lending Act (“TILA”) violations, Judge Ware has held that the Ninth Circuit “gives a trial court discretion to condition rescission on a tender by the borrower of the property, or the property’s reasonable value, to the lender. Yamamoto v. Bank of New York, 329 F.3d 1167, 1171 (9th Cir. 2003). Mangindin, 637 F. Supp. 2d at 705-06. Judge Ware stated:

Notably absent from Plaintiffs’ Complaint is any allegation that they attempted to tender, or are capable of tendering, the value of the property pursuant to the rescission framework established by TILA. Nor do Plaintiffs allege that such equitable circumstances exist that conditioning rescission on any tender would be inappropriate. Thus, the Court finds that Plaintiffs have failed to adequately allege that they are entitled to rescission under TILA.

Mangindin, 637 F. Supp. 2d at 706. Thus, Plaintiffs are only required to allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances existed that conditioning rescission on any tender would be inappropriate.

The First Motion to Dismiss also asserts that the California nonjudicial foreclosure statutes do not require a foreclosing lender to produce the original copy of the note in order to foreclose. However, the First Amended Complaint does not request declaratory relief based on a finding that a foreclosure cannot take place because no party holds an original copy of the note. The First Amended Complaint seeks declaratory relief regarding whether the note is secured; whether the assignment of the note is of any legal effect; and whether the notice of trustee’s sale is void.

The First Motion to Dismiss next asserts that the First Amended Complaint fails to allege with sufficient specificity that the purported transfer of the note from American Brokers Conduit took place while American Brokers Conduit was a debtor in a bankruptcy proceeding. The First Amended Complaint clearly alleges that: “at the time of the assignment, American Broker’s Conduit was in a bankruptcy proceeding under chapter 11 of the U.S. Bankruptcy Code. Plaintiffs are informed and believe that the bankruptcy court did not authorize or approve the assignment of the deed of trust. . . .” First Amended Complaint at page 6, ¶ 20. This allegation is more than a mere threadbare recital and is sufficient to withstand this motion to dismiss. Therefore, the cause of action is not dismissed on this basis.

The First Motion to Dismiss asserts that American Brokers Conduit transferred the note and deed of trust on June 5, 2006 and provides a copy of a loan history for the property. This Court will not take judicial notice of the copy at this time because Plaintiffs have objected to the admissibility of this document and the copy was not part of an official record or court decision.

The First Motion to Dismiss also argues that — even if the deed of trust was transferred out of the bankruptcy estate of American Brokers Conduit without bankruptcy court approval — Plaintiffs have no standing to challenge the transfer. Plaintiffs assert that Plaintiffs have standing because the legal effect of the transfer directly affects Defendants’ ability to foreclose on Plaintiffs’ home. American Brokers Conduit filed for relief under chapter 11 as case number 07-11047 in the Bankruptcy Court for the District of Delaware. Bankruptcy Code section 1109(b) provides: “a party in interest . . . may raise and may appear and be heard on any issue in a case under this chapter.” 11 U.S.C. § 1109(b). The term party in interest is meant to be elastic, and whether a party is a party in interest is determined by the facts of the case. In re Amatex Corp., 755 F.2d 1034, 1042 (3d Cir. 1985). The First Amended Complaint clearly alleges that Plaintiffs have a very practical stake in the legal effectiveness of the transfer of the deed of trust. At least insofar as Plaintiffs seek to challenge that transfer, Plaintiffs’ interest in the American Brokers Conduit bankruptcy proceeding is sufficient to make Plaintiffs a party in interest.

The First Motion to Dismiss further asserts that, even if the assignment took place after American Brokers Conduit filed for bankruptcy, the assignment was in the ordinary course of business and did not require bankruptcy court approval. Under these circumstances, any assignment would be valid. 11 U.S.C. § 363(c)(1). The First Amended Complaint only alleges that the assignment was made when American Broker’s Conduit was in bankruptcy and that there was no authorization from the bankruptcy court, which is only required if the assignment was made outside of the ordinary course of business. Because the First Amended Complaint fails to allege that the assignment was not in the ordinary course of business, this Court dismisses the fourth cause of action with leave to amend with respect to the fact that the assignment from American Brokers Conduit was invalid as an unauthorized post-petition transfer from a bankruptcy debtor.

Finally, the First Motion to Dismiss asserts that the First Amended Complaint must be dismissed because Plaintiffs’ bad faith — as evidenced by Plaintiffs’ failure to tender or to make post-petition payments on the note — estops Plaintiffs from seeking equitable relief. However, the issue of Plaintiffs’ bad faith is a factual issue which this Court will not decide at the motion to dismiss stage. Also, as previously mentioned, this Court does not hold — and leaves for trial, a possible summary judgment motion or other context — Defendants’ contention that alleging tender in the particular manner that Defendants say is mandatory is a requirement to obtaining the declaratory relief sought in Plaintiffs’ First Amended Complaint. Mangindin, 637 F. Supp. 2d at 706.

For the above reasons, this Court dismisses the fourth cause of action with leave to amend only insofar as the fourth cause of action requests a finding that the assignment from American Brokers Conduit was without legal effect for being an unauthorized post-petition transfer from a bankruptcy debtor.

(5) Fifth Cause of Action

The fifth cause of action is against all Defendants for injunctive relief. Plaintiffs request an injunction against a foreclosure sale of the property. Both motions to dismiss assert that this cause of action should be dismissed because injunctive relief cannot be granted without the existence of a substantive cause of action. Shell Oil Co. v. Richter, 52 Cal. App. 2d 164, 168 (Cal. App. 1942). The First Amended Complaint has adequately pled a substantive cause of action for declaratory relief, so the motions to dismiss are denied as to the fifth cause of action.

(6) Sixth Cause of Action

The sixth cause of action is against all Defendants for cancellation of the deed of trust and other instruments and records. In Plaintiffs’ responses to both motions to dismiss, Plaintiffs have agreed to delete the sixth cause of action from future amended complaints based on Defendants’ arguments. Because, as noted earlier, Plaintiffs could allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances exist that conditioning rescission on any tender would be inappropriate, this Court dismisses the sixth cause of action with leave to amend.

E. CONCLUSION

For the forgoing reasons, Defendants’ motions are granted in part with leave to amend and denied in part. Counsel for each set of moving parties shall prepare a form of order consistent with this ruling and submit the proposed order to the Court after service on counsel for Plaintiffs. The Court prefers for all counsel to sign off on the form of order.

[1] Defendants oppose Plaintiffs’ filing of the Second Amended Complaint. Plaintiffs filed the Second Amended Complaint without leave from the Court or consent from Defendants as required by Federal Rule of Civil Procedure Rule 15(a)(2), incorporated by Federal Rule of Bankruptcy Procedure Rule 7015. The Court is deciding these motions to dismiss as to the First Amended Compliant only, and not as to the Second Amended Complaint.

Various Signatures of Korell Harp

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Supreme Court to Consider Mortgage-Fees Lawsuit: FREEMAN v. QUICKEN LOANS

Supreme Court to Consider Mortgage-Fees Lawsuit: FREEMAN v. QUICKEN LOANS


Mortgage/ Securitization forensic auditors especially, may want to pay close attention to this case.

 

WSJ-

The U.S. Supreme Court agreed Tuesday to clarify the circumstances in which home buyers can sue mortgage lenders for allegedly charging them unearned fees during the closing process.

The case centers on a group of lawsuits from Louisiana in which borrowers alleged Detroit-based Quicken Loans Inc. charged them loan-discount fees but did not provide reduced interest rates in return.

Quicken Loans said the fees were legal and denied allegations that the fees were unearned.

[WALL STREET JOURNAL]

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Banks Took $6B in Reinsurance Kickbacks, Investigators Say

Banks Took $6B in Reinsurance Kickbacks, Investigators Say


This is a must read. There is no end to this mess. ENJOY!

American Banker-

Many of the country’s largest banks received $6 billion in kickbacks from mortgage insurers over the course of a decade, according to a previously undisclosed investigation by the Inspector General of the Department of Housing and Urban Development.

The allegations, since referred to the Department of Justice, stem from lenders’ demand that insurers cut them in on the lucrative business of insuring the mortgages they produced during the housing boom.

In exchange for the their business, companies such as Citigroup Inc, Wells Fargo & Co, SunTrust Banks Inc. and Countrywide allegedly required reinsurance partnerships on generous terms that violated the Real Estate Settlement Procedures Act, a 1974 law prohibiting abusive home sales practices.

[AMERICAN BANKER]

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DEUTSCHE v. PELLETIER | Maine Supreme Judicial Court Affirms JGMT “Ameriquest, Rescission, TILA, RESPA”

DEUTSCHE v. PELLETIER | Maine Supreme Judicial Court Affirms JGMT “Ameriquest, Rescission, TILA, RESPA”


MAINE SUPREME JUDICIAL COURT

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN
TRUST FOR THE REGISTERED HOLDERS OF AMERIQUEST MORTGAGE
SECURITIES INC., ASSET-BACKED PASS-THROUGH CERTIFICATES,
SERIES 2006-R2

v.

DONALD P. PELLETIER et al.

EXCERPT:

[¶13] Although the Pelletiers have not yet tendered to the bank the proceeds
of the loan that they received from Ameriquest, the statute specifies that tender is
not required until the creditor has performed its obligations under the law.
15 U.S.C.S. § 1635(b). The facts established in this summary judgment record
indicate that the creditor—the bank—has not yet performed its obligation to
“return to the obligor any money or property given as earnest money,
downpayment, or otherwise.” Id. Thus, the Pelletiers were not yet required to
tender the proceeds to the bank, and the court did not err in imposing the remedy of
rescission on summary judgment. Further proceedings are necessary, however, to
define the scope of that remedy. Because the parties have not followed the process
specified by statute with precision and clarity, the court may “otherwise order[]”
appropriate procedures to give effect to the remedy of rescission. Id. Accordingly,
although we affirm the court’s judgment granting the Pelletiers’ request for
rescission, we remand the matter for the court to determine how this rescission
should be effectuated.

The entry is:

Summary judgment for the Pelletiers on the
foreclosure complaint affirmed. Remanded for
further proceedings to effectuate the rescission of
the January 18, 2006, agreements.

[ipaper docId=62165655 access_key=key-1c38374ar0oz2vv2e90g height=600 width=600 /]

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HUD SETTLES RESPA KICKBACK CASE AGAINST PROSPECT MORTGAGE FOR $3.1 MILLION

HUD SETTLES RESPA KICKBACK CASE AGAINST PROSPECT MORTGAGE FOR $3.1 MILLION


California lender to pay $3.1 million and dissolve sham joint ventures

WASHINGTON, DC – July 13, 2011 — The U.S. Department of Housing and Urban Development (HUD) today announced an agreement with Prospect Mortgage, LLC (Prospect) to settle allegations the California-based mortgage lender created sham affiliated business arrangements for the purpose of paying improper kickbacks or referral fees in violation of Federal Housing Administration (FHA) guidelines and the Real Estate Settlement Procedures Act (RESPA).  Prospect agreed to dissolve these sham joint ventures and pay $3.1 million to resolve the complaint.

HUD claimed Prospect operated as a “series limited liability company,” a business structure unauthorized by FHA, and that Prospect used this business structure to create hundreds of sham joint ventures with real estate brokers, mortgage brokers, mortgage lenders, servicers and other settlement service providers and to share profits for the referral of real estate settlement services.  Through these affiliated business arrangements, Prospect allowed non-approved branch offices to originate FHA-insured mortgages in violation of FHA’s guidelines.  Read the full text of the agreement announced today.

“The real test for any bona fide affiliate business arrangement is whether the affiliate has sufficient capital and employees to stand on its own two feet,” said Acting FHA Commissioner Carol Galante.  “In this case, it was clear that these sham companies had neither and were merely sharing profits for the referral of business.”

HUD alleges that Prospect entered into “series” or “subscription agreements” with real estate brokers, agents, banks, mortgage servicers and others to give the appearance that it was creating legitimate joint ventures to provide real and compensable services.  HUD discovered these sham businesses had little or no employees, capital and/or offices; that all core mortgage origination services were performed by Prospect itself; and that Prospect had allowed these affiliated businesses to participate in the origination of FHA-insured loans out of branch offices registered with FHA as exclusive to Prospect.  In return for the referral of business, Prospect shared 50 percent of its profits with these entities which HUD determined were not bona fide affiliated businesses, and many of which were not FHA-approved lenders.

RESPA was enacted in 1974 to provide consumers advance disclosures of settlement charges and to prohibit illegal kickbacks and excessive fees in the homebuying process. Section 8(a) of RESPA prohibits a person from giving or accepting anything of value in exchange for the referral of settlement service business and Section 8(b) prohibits unearned fees.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination; and transform the way HUD does business. More information about HUD and its programs is available on the Internet at www.hud.gov and espanol.hud.gov.

Contact:
Brian Sullivan
202) 708-0980

[ipaper docId=60037741 access_key=key-29sy3uc681o97nlq8x9h height=600 width=600 /]

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HUD SETTLES RESPA KICKBACK CASE AGAINST FIDELITY NATIONAL FINANCIAL (FNF) FOR $4.5 MILLION

HUD SETTLES RESPA KICKBACK CASE AGAINST FIDELITY NATIONAL FINANCIAL (FNF) FOR $4.5 MILLION


HUD No. 11-142
Brian Sullivan
202) 708-0980
FOR RELEASE
Monday
July 11, 2011

HUD SETTLES RESPA KICKBACK CASE AGAINST FIDELITY NATIONAL FINANCIAL

Title company to pay $4.5 million and cease paying brokers referral fees

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) today announced an agreement with Fidelity National Financial, Inc. (FNF) to settle allegations the title company paid real estate brokers and other settlement service providers improper kickbacks or referral fees in violation of the Real Estate Settlement Procedures Act (RESPA). Read the full text of the agreement announced today.

HUD claimed FNF and its affiliates and subsidiaries engaged in a widespread and years-long campaign to pay real estate brokers kickbacks for the referral of real estate settlement services, including home warranties and title insurance.FNF agreed to cease this practice and pay HUD $4.5 million to resolve the complaint.

“RESPA is very clear that paying fees or providing anything of value for the simple act of referring business is a violation of law,” said Acting FHA Commissioner Robert Ryan. “This agreement should be a signal to others that these business practices won’t be tolerated.”

HUD alleges that FNF, through its subsidiaries, paid fees for the referral of settlement service business in violation of Section 8 of RESPA. To facilitate these payments, real estate brokerages entered into “Application Service Provider Agreements” which provided the real estate brokerages access to TransactionPoint, a web-based platform that automates the real estate transaction from listing to closing. This online system also allows the brokers to select real estate settlement providers for a particular real estate transaction. The real estate brokerages, in turn, entered into Sub-License Agreements with subsidiaries of FNF to enable FNF’s subsidiaries to be listed in TransactionPoint as a provider of settlement services. As part of the Sub-Licensee Agreement, HUD alleges that FNF’s subsidiaries paid the real estate brokerages a fee for each referral of real estate settlement services.

RESPA was enacted in 1974 to provide consumers advance disclosures of settlement charges and to prohibit illegal kickbacks and excessive fees in the homebuying process. Section 8 of RESPA prohibits a person from giving or accepting anything of value in exchange for the referral of settlement service business.

###

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all. HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination; and transform the way HUD does business. More information about HUD and its programs is available on the Internet at www.hud.gov and espanol.hud.gov.

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LETTER? | BAC TRANSFERRING HOME LOANS BACK TO BANK OF AMERICA, N.A.?

LETTER? | BAC TRANSFERRING HOME LOANS BACK TO BANK OF AMERICA, N.A.?


Due to a possible copyright issue, letter will not be posted. It also provides some information about sending a “Qualified Written Request” if you have any concerns over your loan.

IMO this might have to do with MERS… don’t ask why but it’s just a feeling…possibly due to now “defunct” America’s Wholesale Lender no longer around for MERS to act as nominee, many of these loans originated with AWL… Make your own determinations after you get a better picture… [see Full Deposition Transcript of ROY DIAZ Shareholder of Smith, Hiatt & Diaz, P.A. Law Firm and begin on pg. 58]

via Living Lies

We are receiving reports that BAC is sending out letters declaring that they are transferring loans from BAC or Bank of America, the parent company as of July 1, 2011.

The question is why? It seems that BOA is starting to realize the title problems inherent in its takeover of Countrywide and the initiation of loans using money from investors who bought bogus mortgage bonds. There is no doubt that the fundamental defects in the original loans is starting to bother BOA and other banks, along with their shareholders and creditors. They managed to get the NY Federal Reserve Bank to issue a statement that was dismissive of such claims. But the Fed doesn’t decide contractual or property rights — that is the exclusive province of the judicial branch applying existing laws.

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MILITARY | Jury Awards GI $20M in Mortgage Case

MILITARY | Jury Awards GI $20M in Mortgage Case


A federal jury awarded a Fort Benning Soldier more than $20 million on Monday in a case against Coldwell Banker Mortgage — an amount the plaintiff’s attorney called necessary to get the company’s attention.

Jurors in the case of David Brash v. PHH Mortgage Corp., doing business as Coldwell Banker, deliberated for about six hours before ruling in Brash’s favor. During the six-day trial, jurors heard that Coldwell Banker improperly reported Brash, 29, to credit bureaus which led to a “serious delinquency” on his credit report, that it refused to answer his questions or correct his account and damaged him emotionally, physically and financially, his attorneys and court documents say.

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CALIFORNIA BK COURT ISSUES ‘TRO, WHO OWNS THE NOTE’ IN RE PINEDA

CALIFORNIA BK COURT ISSUES ‘TRO, WHO OWNS THE NOTE’ IN RE PINEDA


In re: WALTER RALPH PINEDA, Debtor(s).
WALTER RALPH PINEDA, Plaintiff(s),
v.
BANK OF AMERICA, N.A., et al, Defendant(s).

Case No. 10-91936-E-7, Adv. Pro. No. 10-9060, Docket Control No. WRP-5.

United States Bankruptcy Court, E.D. California, Modesto Division.

March 15, 2011.

NOT FOR PUBLICATION

MEMORANDUM FOR ISSUANCE OF TEMPORARY RESTRAINING ORDER

RONALD H. SARGIS, Bankruptcy Judge

The court has been presented with a Motion for Injunctive Relief and Ex Parte Application for a Temporary Restraining Order filed by Walter R. Pineda, a pro se plaintiff in this adversary proceeding. The Motion was presented the court at 4:00 p.m. on March 14, 2011. In the Motion Mr. Pineda asserts that Bank of America Corp, LP, a defendant, intends to conduct a non-judicial foreclosure sale at 3:00 p.m. on March 15, 2011, for real property commonly known as 22550 Bennett Road, Sonora, California (“Bennett Road Property”). The Bennet Road Property is listed on Schedule A as real property owned by the Debtor and his unnamed spouse, with a value of $210,000.00 Schedule A, Docket Entry No. 16, Case No. 10-91936.

The Debtor commenced a voluntary Chapter 7 case on May 20, 2010. The petition lists the Bennett Road Property as his street address. The nature of the Debtor’s business is listed as “Law.” The petition further states that the Debtor has not filed any prior bankruptcy cases within the last 8 years. Petition, Docket Entry No. 1, Case No. 10-91936.

On Schedule D filed by the Debtor on June 14, 2010, the Debtor lists the Bank of New York Mellon as his only creditor having a secured claim. He states under penalty of perjury that there is a codebtor, that the date the claim was incurred, nature of the lien, and description of collateral is “Unknown,” the value of the unknown collateral is $10.00, and the amount of the claim is $10.00. Docket Entry No. 18. In the original Schedule D filed on June 3, 2010, the Debtor stated under penalty of perjury that Bank of America had a claim for a debt incurred on August 13, 2002, secured by a deed of trust against the Bennett Road Property, that the Bennett Road Property had a value of $300,000.00, and that the Bank’s disputed claim was for $477,894.27. Nothing in the court’s file indicates which statement under penalty of perjury is true and correct.

The Motion asserts that by proceeding with a trustee’s sale under the deed of trust, Bank of America Corp., LP is attempting to usurp the court’s authority with respect to this adversary proceeding, and is in violation of Rule 7001, Federal Rules of Civil Procedure (which states the matters for which an adversary proceeding is required), and Rule 65, Federal Rules of Civil Procedure, and Rule 7065, Federal Rules of Bankruptcy Procedure, (injunctive relief). The Motion does not assert how a non-judicial foreclosure sale usurps the court’s power relating to adversary proceedings and injunctive relief. The court construes this contention to be that if the foreclosure sale is allowed to proceed, the court will be unable to grant the relief requested by the Debtor in the Complaint.

The Debtor next contends that he will suffer immediate, irreparable injury, loss or damage in that Plaintiff/Debtor’s “current poor, physical condition will worsen and Plaintiff will become homeless balanced against adding another vacant home to Defendant’s hundreds of thousands of vacant homes inventory.” Motion, pg. 2:17-20. The Debtor/Plaintiff further alleges that a non-judicial foreclosure will impair the administration of the Chapter 7 case, but does not identify the potential impairment.

The Debtor has filed a document titled affidavit in support of the Motion in which he states that he is currently under treatment for a deteriorating transplanted liver and will become homeless in the event of a sale. Further, that failure to grant the restraining order will result in the Debtor/Plaintiff being denied the protection of the injunctive relief rules, as well as frustrating (in an unstated way) the administration of the Chapter 7 case. The “Affidavit” further states that he called the law office for Bank of America’s attorneys and advised them that he was seeking a temporary restraining order. Though this document is not in the proper form or notarized as an affidavit and does not state that it is under penalty of perjury so as to be a declaration, the court takes into account that the Debtor is representing himself in pro se, and for purposes of this ex parte Motion will consider the statements as being made under penalty of perjury.

On January 25, 2010, Bank of America, N.A., as the alleged beneficiary under the deed of trust, instructed ReconTrust Company, N.A. to file a notice of default. The deed of trust, Exhibit 4, names PRLAP, Inc. as the trustee and not ReconTrust Company, N.A. On February 9, 2010, Bank of America an assignment of trust deed and a substitution of trustee, naming ReconTrust Company as the trustee. It is alleged that this assignment was for the purpose of misrepresenting who is the owner of the note and deed of trust. Debtor/Plaintiff further contends that Bank of America, N.A. and ReconTrust Company improperly commenced the nonjudicial foreclosure in violation of California Civil Code Sections 2924a et. seq.

Debtor/Plaintiff further alleges that on May 2, 2010, he was notified that a nonjudcial foreclosure sale would be conducted at 3:30 p.m. pursuant to the deed of trust. It is contended that such sale was improper because Bank of America and ReconTrust Company did not have the authority to conduct a nonjudical foreclosure sale.

Summary of Complaint

The court has reviewed the First Amended Complaint filed in this Adversary Proceeding, Docket Entry No. 57. The Debtor/Plaintiff first asserts a series of claims against Bank of America, N.A. and other Defendants arising under the Real Estate Settlement Procedures Act (RESPA, 12 U.S.C. 2601 et seq.), Truth in Lending Act (15 U.S.C. § 1600 et. seq.), Fraud (California Civil Code § 1709), California Unfair Business Practices Act (California Civil Code § 17200 et seq.), and breach of contract. The gist of the complaint is that various improper conduct has existed with respect to loan foreclosures throughout the country. This is commonly referred to as the Robo-Signing investigations. It is alleged that the Defendants have refused to provide the Debtor/Plaintiff with an accounting as required under 12 U.S.C. § 2605(a)(1)(A), (f), which has caused Debtor/Plaintiff unstated pecuniary damages. Much of this part of the complaint appears to focus on default swaps, obtaining funds from investors, credit obtained by Defendants, securitized loan pools into which the note was transferred. These allegations do not go to the question of whether the Debtor/Plaintiff has defaulted on his particular loan. At no point in the Complaint or present motion does the Debtor/Plaintiff assert that he is current on the obligations secured by the Deed of Trust. Rather, the contention appears to be that based upon the post-loan financial transactions of the Defendants, monies they received from third-parties from the sale and brokering of the note should be treated as payments on the Note.

It is also asserted that neither Bank of America, N.A. or ReconTrust Company are authorized as agents of the Bank of New York Mellon, the alleged trustee of the trust in which the Debtor/Plaintiff’s note has been transferred to initiate the nonjudical foreclosure process. It is further contended that the nonjudical foreclosure process is an attempt to swindle the property from the Debtor/Plaintiff. Through this second cause of action the Debtor/Plaintiff seeks a determination of the rights of the respective parties.

In reviewing the exhibits filed with the original complaint, there is a May 7, 2010 letter from Bank of America, to the Debtor/Plaintiff stating that it was servicing the loan for the Bank of New York, the investor. The letter does not explain what is meant by referencing the Bank of New York as an investor. However, the letter does clearly state that Bank of America is the entity servicing the loan, though that position is not explained in the letter. Finally, this letter unequivocally states that “Bank of America did not sell your loan at anytime.”

The Debtor/Plaintiff has attached as Exhibit 2 an April 6, 2010 letter from Bank of America to the Debtor/Plaintiff which states that a copy of the complete loan history is attached. (The Debtor/Plaintiff did not include the loan history as part of the exhibit.) This letter states that “The Bank of New York Mellon, fka The Bank of New York, as trustee for the certificate holders of GSR 2003-9…” is the owner of the Note. This appears to conflict with the May 7, 2010 letter stating to the Debtor/Plaintiff that the note has never been sold. Additionally, the letter identifies the Bank of New York Mellon as the trustee for the “certificate holders” of the trust, and not as a trustee of the trust itself.

The Debtor/Plaintiff also contends that the Substitution of Trustee and Assignment of Deed of Trust recorded by Bank of America on February 9, 2010, Exhibit 8 is false as there is no basis for showing that it had the authority to do so at that time. The document purports to assign all beneficial interest in the deed of trust from Bank of America, N.A. to Bank of America, N.A., as servicer for GSR Mortgage Loan Trust 2003-9. This purported assignment was made three months prior to the May 7, 2010 letter in which Bank of America advised the Debtor/Plaintiff that Bank of America never sold the loan at any time.

The Debtor/Plaintiff has attached as Exhibit 10 the notice of default issued with respect to the Note and Deed of Trust. This notice was recorded on January 25, 2010 and states that ReconTrust Company is acting as the agent for the beneficiary under the Deed of Trust. At this juncture, based upon the allegations in the complaint, Bank of New York Mellon was the owner of the Note, as the trustee of the GSR Mortgage Loan Trust 2003-9 (the court is presuming that the reference by Bank of America to Bank of New York Mellon being the trustee for the certificate holders actually means the trustee of the trust for which the beneficiaries are certificate holders). The purported assignment of the Deed of Trust to Bank of America, as servicer did not occur until February 2010, after the notice of default was issued and recorded.

From the court’s survey of California law, an assignment of the note carries the mortgage with it, while an assignment of the mortgage alone is a nullity. Carpenter v. Longan, 83 U.S. 271, 274 (1872); accord Henley v. Hotaling, 41 Cal. 22, 28 (1871); Seidell v. Tuxedo Land Co., 216 Cal. 165, 170 (1932). If one party receives the note and another receives the deed of trust, the holder of the note prevails regardless of the order in which the interests were transferred. Adler v. Sargent, 109 Cal. 42, 49-50 (1895). “Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.” California Civil Code § 2932.5.

The Debtor/Plaintiff also alleges that the Defendants have breach their contractual obligations arising under the Note and Deed of Trust. The alleged breaches include instructing ReconTrust to file the notice of default; failure to advise the Debtor/Plaintiff of the transfer of the Note; failing to account for the monies received in the transfers, securitization, and credit default swaps; and using the note in the GSR Trust. Debtor/Plaintiff asserts that his damages include the drop in real estate values due to the Defendants “reckless, irresponsible, and greedy conduct” in the home mortgage market in the 2000’s.

In light of the Debtor/Plaintiff’s pro se status, it also appears that the Complaint seeks to enjoin the Defendants from proceeding with a non-judicial foreclosure sale peding a determination of who owns the note and who is the beneficiary of under the Deed of Trust.

STATUS OF ADVERSARY PROCEEDING

The Adversary Proceeding was filed August 20, 2010. No answer has been filed, with the Defendants having filed several motions attacking the complaint. These have been denied without prejudice. On January 28, 2011 the Debtor/Plaintiff, Bank of America, N.A., ReconTrust Company, N.A., Bank of New York Mellon, N.A., Inc., and Goldman Sachs, Inc. (GSR Mortgage Loan Trust 2003-9) filed a stipulation extending the deadline for Debtor/Plaintiff to file a first amended complaint. The First Amended Complaint was filed on February 4, 2011, and the Defendants have filed a Motion to Dismiss which is set for hearing on April 6, 2011. It appears that the Motion to Dismiss directly attacks the issues raised in the Complaint and are inexorably tied to the issuance of injunctive relief in this case.

RULING

Though the Debtor/Plaintiff appears to have staked his case on contentions and allegations which have nothing to do with his performance on the Note — making the payments promised for the monies borrowed, he does raise a credible issue as to who owns the note, and under California law, who is the beneficiary entitled to enforce the Note. At this early juncture, it appears that by the time Bank of America sought to “assign” the beneficial interest to itself as servicer, the Note had been transferred to The Bank of New York Mellon, as Trustee. Since the obligation was owed to the Bank of New York Mellon, as Trustee, it appears that it is this bank that holds the beneficial interest.

The parties must properly address who holds the note and has the right to enforce the beneficial interest. The court issues the Temporary Restraining Order to maintain the status quo pending the hearing on the motion to dismiss. If the parties elect to extend the term of the Temporary Restraining Order so as to allow the hearing on the preliminary injunction to April 6, 2011, the court will do so for the convenience of the parties.

Pursuant to Rule 65, Federal Rules of Civil Procedure, and Rule 7065, Federal Rules of Bankruptcy Procedure, the court may issue a temporary restraining order without notice if there is a clear showing of immediate and irreparable harm. As stated above, the court accepts the pro se Debtor/Plaintiff’s statements in the Motion for Temporary Restraining Order as being stated under penalty of perjury. The court shall not grant the Debtor/Plaintiff shall liberties in the future, and even the pro se plaintiff must comply with basic requirements for pleadings and evidence.

In balancing the hardships, there appears to be little hardship for the Defendants as they have been litigating this case since August 2010, and are operating under a stipulated time line. Further, it appears that the automatic stay continues in full force and effect in this case as to property of the estate, even though the Debtor/Plaintiff has been discharged. The bankruptcy case has not been closed and the property has not been abandoned by the Chapter 7 Trustee. 11 U.S.C. § 362(c)(2). If the automatic stay does not apply, then there is potential significant harm to the Debtor/Plaintiff by clouding title to the property through a purported valid non-judicial foreclosure sale or a potential third-party purchasing the property at the sale. The potential loss of his interest in the real property is potential irreparable harm sufficient for the issuance of this preliminary injunction.

At this juncture and given that the parties are already in the process of addressing the issues in the Motion to Dismiss of whether there are even valid claims pled, the court finds that no bond is required pending the hearing on the preliminary injunction. In granting this Temporary Restraining Order, the Debtor/Plaintiff should not be misled into thinking that the court has determined that the various claims and assertions attacking the home mortgage market in the 2000’s, Robo-Signing, and post-Pineda loan transactions by financial institutions are meritorious with respect to the obligations owed by the Debtor/Plaintiff on the Note that is secured by the Deed of Trust. Debtor/Plaintiff shall have to carry his burden for any such claims at the hearing on the motion for preliminary injunction, as well as the facts at his for his specific loan, payments made by him on his specific loan, the balance due on his loan, and why the holder of the note, whomever it is, should not be allowed to foreclose based on the borrower’s (Pineda’s) failure to make payments for the monies borrowed.

The court shall issue a Temporary Restraining Order and set the hearing on the Preliminary Injunction for 10:30 a.m. on March 23, 2011, at the United States Bankruptcy Court, 1200 I Street, Modesto, California.

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CA Judge Grants ‘TRO, Serious Questions Respect To Fraud Claims” CRUZ v. WAMU

CA Judge Grants ‘TRO, Serious Questions Respect To Fraud Claims” CRUZ v. WAMU


Excerpt:

In his motion for a TRO, Plaintiff argues he has shown a likelihood of success on the merits
of his claims for violation of California Business and Professions Code § 17200 and promissory
estoppel. The Court interprets Plaintiff’s argument regarding his claim for promissory estoppel as
applying to his claim for fraud. The elements of a fraud claim are false representation, knowledge of
falsity, intent to defraud, justifiable reliance, and damages
. Vess v. Ciba-Geigy Corp. USA, 317 F.3d
1097, 1106 (9th Cir. 2003). Plaintiff alleges in a verified Complaint and in his motion for a TRO that
a WAMU representative made a knowingly false statement to him with the intent to defraud, upon
which he justifiably relied, causing damages
. Accordingly, Plaintiff has at least raised serious
questions going to the merits with respect to his fraud claim
.

<SNIP>

CONCLUSION

For the foregoing reasons, Plaintiff’s application for a TRO is granted. Defendants and their
agents, employees, representatives, successors, partners, assigns, attorneys, and any and all acting in
concert or participation with them are enjoined from engaging in or performing any act to deprive
Plaintiff of ownership or possession of Plaintiff’s real property located at 919 Brass Way, Encinitas,
California 92024, including, but not limited to, proceeding with the non-judicial foreclosure sale
scheduled for March 18, 2011 and recording any deeds relating to the property. Defendants are
ordered to show cause, on or before March 22, 2011, why a preliminary injunction should not be
issued enjoining Defendants from taking such actions until termination of this case. A hearing shall
be held on Plaintiff’s motion for a preliminary injunction on March 24, 2011 at 2:30 p.m. in
Courtroom 10. This temporary restraining order shall remain in place for 14 days or until this Court
issues an Order on Plaintiff’s motion for a preliminary injunction, whichever shall first occur. The
Court notes, pursuant to Federal Rule of Civil Procedure 65(a)(1), the Court “may issue a preliminary
injunction only on notice to the adverse party.” Furthermore, the Court points out a TRO is binding
only upon parties and their officers, agents, and employees or those acting in concert with them “who
receive actual notice of [the TRO] by personal service or otherwise.” Fed. R. Civ. P. 65(d)(2).
Accordingly, Plaintiff shall forthwith serve a copy of this Order upon all Defendants.

IT IS SO ORDERED.
DATED: March 14, 2011

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NEVADA Dist. Court “QUIET TITLE VIABLE” SIFRE v. Wells Fargo Bank

NEVADA Dist. Court “QUIET TITLE VIABLE” SIFRE v. Wells Fargo Bank


PAUL SIFRE, Plaintiff,
v.
WELLS FARGO BANK, Defendant.

No. 3:10-cv-00572-RCJ-VPC. United States District Court, D. Nevada.

January 19, 2011.

ORDER

ROBERT C. JONES, District Judge.

This case arises out of the foreclosure of Plaintiffs mortgage. The Court previously entered a temporary restraining order and set a preliminary injunction hearing, but the order expired and the Court vacated the hearing when Plaintiff failed to serve Defendant with the notice of the hearing within the time ordered by the Court. Plaintiff has now served “Wells Fargo Bank C/O Trustees Corps,” in Sacramento, California, and the Clerk has entered default against Defendant based on this service. The Court denied a motion for preliminary injunction, and Defendant has now moved to dismiss,

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Paul Sifre owns real property located at 3660 Hawking Ct., Sparks, NV 89436 (the “Property”). (Mot. 1:16-17, Sept. 15, 2010, ECF No. 2).[1] The gravamen of the Complaint is that Plaintiff was fraudulently induced into signing a mortgage, although most of the Complaint is a generalized grievance against the mortgage industry. Plaintiff does not allege he is not in default but rather that Defendant does not have standing to foreclose and fraudulently induced him into entering into the mortgage contract. He also appears to plead claims for unjust enrichment, quiet title, breach of fiduciary duty, negligence, breach of the implied covenant of good faith and fair dealing, intentional infliction of emotional distress, TILA, HOEPA, and RESPA.

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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

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INDIANA APPEALS COURT “Abusive Debt Collection Practices”; LUCAS v. US BANK N.A, LITTON

INDIANA APPEALS COURT “Abusive Debt Collection Practices”; LUCAS v. US BANK N.A, LITTON


IN THE COURT OF APPEALS OF INDIANA

MARY BETH LUCAS and PERRY LUCAS,
Appellants-Defendants,

vs.

U.S. BANK, N.A., As Trustee For THE
C-BASS MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES, 2006-MH-1,
Appellee-Plaintiff,

and

LITTON LOAN SERVICING, LP,
Appellee-Third-Party Defendant

INTERLOCUTORY APPEAL FROM THE GREENE SUPERIOR COURT
Honorable Dena Benham Martin, Judge

Excerpt:

Likewise, the Lucases assert third-party claims against Litton for breach of contract and breach of duty of good faith and fair dealing. In addition, the Lucases maintain that Litton violated FDCPA, RESPA, and that they are entitled to relief under the Civil Damages Statute because Litton committed conversion.

Congress enacted FDCPA because “[t]here is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a). Accordingly, these consumer protection statutes exist not only to make the consumer whole, but also to deter practices and behavior that negatively impacts society. In light of the nature of the claims, the rights and interests involved, and the majority of the relief requested, we cannot say that the essential features of this cause are equitable.

The judgment of the trial court is reversed and remanded with instructions to grant the Lucases’ motion for a jury trial on their legal claims.

Continue below…

[ipaper docId=44989784 access_key=key-7wroggqk3ub5ydugzhd height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

Full Deposition Transcript of Jessica Cabrera Law Offices of Marshall C. Watson

Full Deposition Transcript of Jessica Cabrera Law Offices of Marshall C. Watson


Make sure to catch the exhibits in the deposition towards the very end.

Will do excerpts when I have a chance.

[ipaper docId=39632683 access_key=key-g4rsv1f15iz3h6fw9pf height=600 width=600 /]

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



Posted in STOP FORECLOSURE FRAUDComments (1)

15 Texans File Class action suit against Bank of America

15 Texans File Class action suit against Bank of America


By Lani Rosales on July 15, 2010 | AgentGenius.com

Here at AG, we’ve written about how Bank of America has foreclosed on homes by continuing the foreclosure process even after the home was successfully sold to a new buyer who didn’t even have a loan through Bank of America and we’ve covered how they have foreclosed on addresses they never even had a loan on despite dispute and direct correspondence.

AG columnist, Russell Shaw has remained our most vocal advocate for homeowners and agents having to battle Bank of America. His “Bank of America retard division for short sales” article that outlines the unfair, irrational and possibly illegal behavior of Bank of America remains one of the most read articles here at AG on most days, almost a year after it was originally published.

In steps the Texans

We’ve awaited the day that someone stood up to the documented abuses in a fashion that would impact Bank of America’s bottom line, and today, a group of homeowners are no longer taking it lying down. In true Texas fashion, a class action complaint was just filed and a jury trial has been demanded. Today,
the Texas Housing Justice League joins the 15 homeowners in the suit against Bank of America and its subsidiary BAC Home Loans Servicing.

Interestingly, the claim is using RESPA (Real Estate Settlement and Procedures Act) as grounds for the complaint. The other eight claims are as listed below:

  • Count Two: Breach of Contract – Loan Modification Agreement
  • Count Three: Breach of Contract – Forbearance Agreement
  • Count Four: Breach of Contract-Promissory Note and Deed of Trust
  • Count Five: Violation of the Texas Property Code
  • Count Six: Breach of Oral Contract-HAMP Trial Modification
  • Count Seven: Unreasonable Collection Efforts
  • Count Eight: Intentional Misrepresentation
  • Count Nine: Texas Debt Collection Act

About the plaintiffs:

According to the Texas Housing Justice League, “Plaintiffs are and represent people who purchased their first homes between 1994 and 2006, usually with loan assistance from the Federal Housing Administration and the U.S. Department of Veterans Affairs. Their loans were all serviced by Defendant BAC, which is a wholly owned subsidiary of Defendant Bank of America, N.A.”

They continue, by noting that “The lawsuit complains not of poor customer service by BAC, but of a systematic home loan servicing scheme that includes hours of telephone runaround, misleading and inconsistent information, lost correspondence, verbal abuse, and extensive delay, all of which have documented costs not only in terms of money, but in health. The facts in this case reveal the harsh reality that underlies the loan servicer’s press statements about loan modifications and forbearance agreements following collapse of the U.S. housing market.”

A suitable summary of the suit:

Denver Realtor, Kristal Kraft says, “In the interest of time, I will now use only the keywords describing the gripes against Bank of America as accused by the Texas Homeowners.

Scheme, misleading, inconsistent, lost correspondence, verbal abuse, extensive delay, money, health, harsh, shuffled, no resolution, dysfunctional, barrage of misinformation, misdirection, deliberate inactivity, abuse, harassment, yo-yo. blocked at every turn, labyrinth of transfers, hundreds of hours on the telephone, transferred, never speak to same person again, contradictions, complaints meet with resistance, no supervisors available, unaccountable departments, asked to sign same documents three, four or even five times, negotiators who would not return telephone calls, not isolated incidents, pattern and practice by Bank of America.’

What will happen next?

One of the Plaintiff’s lawyers, Robert Doggett said on ForeclosureBuzz.com, “It would be hard to imagine that Bank of America and BAC will fight the facts of the case; the question will likely be whether they can get away with it. The servicer will likely claim that poor “customer service” is something that must be accepted like a slow waiter or a bad movie. The difference is of course that homeowners are not merely customers that should expect to be mistreated and lied to — homeowners have a contract with the holder of their home loan and these servicers are the agents for the holder — and moreover, servicing a home loan is not in the realm of someone forgetting your fries or being tricked into seeing Gigli.”

For the full claim, click here.

[ipaper docId=34367809 access_key=key-22j3ru34s5q8ixwyzrmc height=600 width=600 /]


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



Posted in bank of america, class action, respa, STOP FORECLOSURE FRAUD, ViolationsComments (5)

Lenders Unload Mortgages to Collection Agencies

Lenders Unload Mortgages to Collection Agencies


What we were discussing this morning…

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

Lenders Unload Mortgages to Collection Agencies

19 April 2010 @ 05:11 pm EDT

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

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

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

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

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

Related Story:

FORENSIC AUDIT (FMI) & Securitization

FORENSIC MORTGAGE AUDITS AS TOOLS TO SAVE FORECLOSURE HOMES

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

Posted in concealment, conspiracy, foreclosure fraud, forensic mortgage investigation audit, nina, note, respa, short sale, siva, tilaComments (1)

To ROB a COUNTRY, OWN a BANK: William Black

To ROB a COUNTRY, OWN a BANK: William Black


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

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

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

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

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

 

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

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

DO NOT STOP FORECLOSURE

DO NOT NEGOTIATE ON YOUR BEHALF WITH YOUR BANK OR LENDER

DO NOT MODIFY YOUR LOAN

DO NOT TAKE CASES that is upto your attorney!

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

Posted in bank of america, bernanke, chase, citi, concealment, conspiracy, corruption, fdic, FED FRAUD, federal reserve board, FOIA, foreclosure mills, forensic mortgage investigation audit, fraud digest, freedom of information act, G. Edward Griffin, geithner, indymac, jpmorgan chase, lehman brothers, Lynn Szymoniak ESQ, MERS, Mortgage Foreclosure Fraud, nina, note, onewest, scam, siva, tila, title company, wachovia, washington mutual, wells fargoComments (0)


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