BofA allegedly rips off consumers by $727m. Per @CFPB, doesn’t admit/deny wrongdoing (?!?). To pay $45m in fines, or abt 6% of alleged harm

Today we’re fining Bank of America, N.A. and FIA Card Services, N.A. for unfairly billing consumers for services relating to identity theft protection “add-on” products and for using deceptive marketing and sales practices for credit protection “add-on” products.

We are also ordering Bank of America to refund fees and provide other redress to consumers. Approximately 2.9 million consumers will be receiving or already have received up to $727 million in refunds for fees they paid for these products and services as well as additional redress.

If you’re impacted by the announcement, you don’t have to take any action to receive a credit or check. If you are one of the consumers affected by the order, Bank of America should have already notified you or will notify you directly. If you have questions about whether you are entitled to a refund, you can contact Bank of America.

Who is eligible for compensation?

Nearly 1.4 million consumers have already received or will receive refunds of at least $250 million in fees for the “credit protection” products (Credit Protection Plus and Credit Protection Deluxe). You will receive refunds if you are a Bank of America customer who enrolled in these products at any time over the phone, were charged a fee between October 1, 2010 and March 31, 2013, and either did not activate benefits or who had  a request for benefits denied.

Approximately 1.5 million consumers purchased the “identity theft protection” products (Privacy Guard, PrivacySource, and Privacy Assist) and were improperly billed for services that were not performed. As a result, consumers paid at least $459 million in fees, interest, and over-limit charges for these products without receiving full services. Today’s announcement recognizes the refunds Bank of America has already provided to consumers harmed as a result of the illegal billing practices relating to these identity theft protection products.

Eligible consumers who were enrolled in the “identity theft protection” products received refunds if they enrolled in these products between October 2000 and September 2011 but did not receive full credit monitoring services, received only partial credit monitoring and/or credit report retrieval without notice, and/or didn’t receive credit report retrieval benefits.

What do eligible consumers get?

That depends on the product consumers were enrolled in and some other factors.

Eligible consumers who were enrolled in a “credit protection” product for less than a year, who made a request for benefits that was denied or closed, or who, complained to the CFPB or to Bank of America stating that they did not authorize enrollment in the product, will receive a refund of all fees charged from October 1, 2010 through March 31, 2013. Eligible consumers who were enrolled in a “credit protection” product for a year or more and who do not fall within any of the groups described above will receive a refund of 300 days of fees charged from October 1, 2010 through March 31, 2013.

Some consumers who were enrolled in “credit protection” product will also receive:

1. A reduction in charged-off balances due to product fees charged from October 1, 2010 through March 31, 2013.
2. “Credit protection” services for six months at no-cost for consumers enrolled in the product as of March 1, 2013.

Bank of America has already completed reimbursement for the “identity theft protection” eligible consumers, so eligible consumers should have already received refunds. If you have questions about receiving a refund for this product, you can contact Bank of America.

Bank of America is responsible for providing refunds

Watch out for scammers claiming they will get you a refund. When large numbers of consumers get refunds, scammers sometimes pop up. The scammer may charge you a fee or try to steal your personal information. If someone tries to charge you, tries to get you to disclose your personal information, or asks you to cash a check and send a portion to a third party in order to “claim your refund,” it’s a scam. Please call us at (855) 411-CFPB to report the scam.

source: http://www.consumerfinance.gov/blog/explainer-compensating-consumers-for-bank-of-americas-illegal-tactics-for-credit-card-add-on-products/

Peng v. Chase Home Finance CA2/8, B245436(Cal. Ct. App. 2014)

California Courts of Appeal

Date Filed: April 8th, 2014

Status: Non-Precedential

Docket Number: B245436

Fingerprint: 437aeb15794e3eea001ae508104f2cb5f6fd3904

Filed 4/8/14 Peng v. Chase Home Finance CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 
has not been certified for publication or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT

JEFFRY PENG et al.,                                                  B245436

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. GC049568)
         v.

CHASE HOME FINANCE LLC et al.,

         Defendants and Respondents.

Authorities (4)

This opinion cites:

• Goodman v. Kennedy, 556 P.2d 737 (Cal. 1976)

• Hernandez v. City of Pomona, 49 Cal. App. 4th 1492 …

• Melendrez v. D & I INVESTMENT, INC., 26 Cal. Rptr. …

• Nestle v. City of Santa Monica, 496 P.2d 480 (Cal. 1972)

Full Table of Authorities

View Original

From the court  [PDF] |   Our backup

<Excerpt and Dissent>

5 [citation], nor that the original lender would have refrained from foreclosure under the circumstances presented. If MERS indeed lacked authority to make the assignment, the true victim was not plaintiff but the original lender, which would have suffered the unauthorized loss of a $1 million promissory note.” (Id. at p. 272.) Likewise, here, there is no showing of prejudice to the Pengs from the sale of the mortgage to Freddie Mac. Whether Freddie Mac or Chase held the note, it is inescapable that the Pengs defaulted on it. They also did not tender payment or otherwise cure the default. There are no allegations, or proposed allegations,  that Chase or Freddie Mac interfered in any way with their payments or that Freddie Mac would have refrained from foreclosing on the property. As the Pengs acknowledge and as the record shows, Chase foreclosed on the property and issued a grant deed of the property to Freddie Mac. A nonjudicial foreclosure sale is presumed to have been conducted regularly, and the burden of proof rests with the party attempting to rebut this presumption. (Melendrez v. D&I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258.) The Pengs have failed to allege any facts to rebut the  presumption the nonjudicial foreclosure was conducted properly. DISPOSITION The judgment is affirmed. Respondents are awarded costs on appeal. BIGELOW, P. J. I concur: GRIMES, J.

                                             6
RUBIN, J. – Dissenting

       I respectfully dissent.
       The promissory note signed by appellants Jeffry and Grace Peng obligated them to
repay their home loan. In August 2007, Freddie Mac acquired the promissory note from
Chase. Based on Freddie Mac owning the note, appellants seek to amend their complaint
to allege Chase did not have authority to enforce the promissory note or to foreclose on their home, 
but the majority rejects appellants’ proposed amendment. Relying on case
law rebuffing a homeowner’s challenge to a creditor-beneficiary’s authority to foreclose,
the majority notes that courts have traditionally reasoned that the homeowner’s challenge
is futile because, even if successful, the homeowner “merely substitute[s] one creditor for
another, without changing [the homeowner’s] obligations under the note.” (Fontenot v.
Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271.) The only party prejudiced by
an illegitimate creditor-beneficiary’s enforcement of the homeowner’s debt, courts have
reasoned, is the bona fide creditor-beneficiary, not the homeowner.
       Such reasoning troubles me. I wonder whether the law would apply the same reasoning if we were dealing with debtors other than homeowners. I wonder how most of
us would react if, for example, a third-party purporting to act for one’s credit card
company knocked on one’s door, demanding we pay our credit card’s monthly statement
to the third party. Could we insist that the third party prove it owned our credit card
debt? By the reasoning of Fontenot and similar cases, we could not because, after all, we
owe the debt to someone, and the only truly aggrieved party if we paid the wrong party
would, according to those cases, be our credit card company. I doubt anyone would stand
for such a thing.
       I think cases such as Fontenot – and their solicitude for self-proclaimed creditor-
beneficiaries who ask us to take on their say-so authority to foreclose on someone’s home
– are, or should be, a legacy from a bygone era. There was a time when the orderliness and regulatory oversight of the mortgage industry perhaps justified a presumption that creditor-beneficiaries acted lawfully when they enforced a homeowner’s debt. In those
days, courts excused mortgage lenders from proving their authority because we trusted
they acted properly, and we presumed that a homeowner’s challenge was typically a
delaying tactic to avoid a valid foreclosure. (See e.g. Siliga v. Mortgage Electronic
Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 82 [“California courts have
refused to allow [homeowners] to delay the nonjudicial foreclosure process by pursuing
preemptive judicial actions challenging the authority of a foreclosing ‘beneficiary’ or
beneficiary’s ‘agent.’ ”]; Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th
497, 511-512 [same].)
       I think the old presumption no longer withstands the press of current events.
Today’s foreclosures playing out in the courts and elsewhere bear little resemblance to
what happened with the mortgages of our grandparents. Widespread securitization of
mortgages in the years before the financial meltdown of 2008, an economic catastrophe
triggered in part by the often unlawful repeated packaging, selling, repackaging, and
reselling of mortgages mostly unseen and poorly understood by homeowners, investors,
regulators, and the public, has changed the financial landscape, and should change the
legal landscape, too. The common law evolves to meet new challenges from new
circumstances. In a quip often attributed, perhaps incorrectly, to John Maynard Keynes, “When the facts change, I change my mind. What do you do sir?” The time has come to insist  upon regularity in foreclosure proceedings. I therefore believe we have reached the time to make clear a homeowner’s right to challenge a foreclosure based on the foreclosing party’s absence of authority to foreclose.

                                             2
         Perhaps in recognition that the mortgage business is not what it once was, courts
have started to permit homeowners to challenge the loss of their homes on the ground
that the foreclosing party did not own the homeowner’s promissory note or security
interest and did not represent the party who did. “[O]nly the ‘true owner’ or ‘beneficial holder’ of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law.” 
(Barrionuevo v. 
Chase Bank, N.A. (N.D.Cal. 2012) 885 F.Supp.2d 964,
972.) “Several courts have recognized the existence of a valid cause of action for
wrongful foreclosure where a party alleged not to be the true beneficiary instructs a
trustee to file a Notice of Default and initiate nonjudicial foreclosure.” (Id. at pp. 972-
973.) Among the cases in this post-2008 financial meltdown era are:
         Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1088, 1097: A
homeowner successfully “raised questions regarding the chain of ownership, by
contending that the defendants were not the lenders or beneficiaries under his deed of
trust and, therefore, did not have the authority to foreclose.”
         Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1378-
1379: Deutsche Bank was not entitled to summary judgment on a wrongful foreclosure
claim because it failed to show a chain of ownership that would establish it was the true
beneficiary under the deed of trust.
         Barrionuevo v. Chase Bank, N.A., supra, 885 F.Supp.2d at pages 973–974: The
court permitted a cause of action for wrongful foreclosure where a homeowner alleged
that Chase lacked authority to foreclose because Washington Mutual securitized the
subject loan, divesting itself of any interest, prior to transferring its beneficial interest to
Chase.
         Sacchi v. Mortgage Elec. Registration Sys. (C.D.Cal. June 24, 2011, No. CV 11-
1658 AHM (CWx)) 2011 U.S.Dist. Lexis 68007, *16-21: A homeowner stated a cause of
action for wrongful foreclosure where MERS transferred a lender’s beneficial interest in
a deed to the lender’s successor after the successor executed without authority a
substitution of trustee, making the new trustee’s notice of sale invalid.

                                                3
       Ohlendorf v. Am. Home Mortg. Servicing (E.D.Cal. 2010)

279 F.R.D. 575

, 583:
Permitted a homeowner to pursue a claim for wrongful foreclosure where the foreclosing
party may have relied on a series of backdated transfers of a deed of trust’s beneficial
interest to pursue foreclosure. Documents showed that MERS was the beneficiary under
the deed of trust at the time foreclosure proceedings began, but the notice of default listed
Deutsche Bank as beneficiary and a mortgage servicer as trustee. To rectify the “taint”
of the inconsistent recorded documents, MERS filed a backdated assignment of the
beneficial interest to the mortgage servicer, and 11 seconds later the mortgage servicer
recorded a backdated assignment of the deed of trust to Deutsche.
       Javaheri v. JPMorgan Chase Bank, N.A. (C.D.Cal. June 2, 2011, No. CV10-08185
ODW (FFMx)) 2011 U.S.Dist. Lexis 62152, *12-14: A homeowner stated a claim for
wrongful foreclosure against J.P. Morgan Chase by alleging that lender Washington
Mutual sold the homeowner’s promissory note to an investment pool, which thereafter
transferred the promissory note to another investment pool, preventing J.P. Morgan
Chase from obtaining the note when it acquired Washington Mutual’s assets because the
note was no longer owned by Washington Mutual at the time of the assignment.
       I suspect that creditor-beneficiaries and their trustees do not want to be forced to
prove they own a homeowner’s debt and have authority to foreclose because it is now
well understood that in too many cases they can’t prove their ownership and authority.
I am not prejudging the facts in this case, for that is why we have discovery and a trial.
But tellingly, even here respondents’ demurrer was beset by missing paperwork. In their
demurrer, respondents state:
       “On June 12, 2007, Plaintiffs obtained a loan (“Loan”) from Chase. In connection
with the Loan, Plaintiffs executed a promissory note (“Note”) and deed of trust (“DOT”),
securing the Loan . . . . Chase was the beneficiary and First American was the trustee
under the DOT. [¶] Subsequently, Chase assigned the DOT to Chase Home Finance,
LLC. After Plaintiffs defaulted on the Loan, First American recorded a Notice of Default
and Election to Sell Under Deed of Trust (“NOD”) against the Property. Chase Home

                                              4
Finance, LLC, also recorded a Substitution of Trustee, reflecting the substitution of
Northwest Trustee as the trustee under the DOT. Because Plaintiffs failed to cure the
default, Northwest Trustee recorded, on February 1, 2011, a Notice of Trustee’s Sale
(“NOTS”) against the Property. Northwest Trustee conducted the trustee’s sale on
December 28, 2011, where Chase, successor by merger to Chase Home Finance, LLC,
acquired title to the Property. On March 28, 2012, Chase recorded a Grant Deed,
reflecting that it had granted the property to FHLMC.”
       But notice what is missing from respondents’ history of the loan – Chase’s sale to
Freddie Mac of appellants’ promissory note in August 2007. Freddie Mac’s “Loan Look-
Up Tool” states its “records show that Freddie Mac is the owner of your [i.e. appellants’]
mortgage and it was acquired on August 23, 2007.” I do not suggest that respondents
intended to mislead the trial court by omitting the fact that Chase had sold appellants’
promissory note in 2007, four years before Chase bought the house in foreclosure.
The reason I point out the omission is to highlight the difficulty of learning from tangled
paper trails “who, what, where, when, and how” in mortgage cases involving lender
documents that are sometimes – take your pick – incomplete, lost, inaccurate, post-dated,
altered, robosigned, or created after the fact.1 I would therefore permit appellants to pursue their claim for wrongful foreclosure on the grounds that Chase did not have authority to enforce the debt or to foreclose. What do respondents have to fear? Chase either had the authority to act when it submitted a credit bid to foreclose on appellants’

1
        In this case, for example, appellants signed their promissory note and deed of trust
in June 2007 and Chase sold the note to Freddie Mac in August 2007. The Trustee’s
Deed Upon Sale states Chase bought appellants’ home in foreclosure on December 28,
2011 (by credit bid, a prerogative of the present beneficiary). Chase thereafter gave the
house to Freddie Mac by Grant Deed on March 9, 2012, but, incongruously, the Trustee’s
Deed Upon Sale – which precedes the Grant Deed in the chain of title – was not notarized
until March 22, 2012, almost two weeks after Chase had deeded the house to Freddie
Mac. A trifle, perhaps, but wouldn’t it have been more businesslike and orderly to
notarize the Trustee’s Deed Upon Sale closer to the actual sale in late December 2011,
rather than wait three months until after Chase transferred ownership of the house by a
Grant Deed to Freddie Mac (thus superseding the yet-to-be-recorded Trustee’s Deed
Upon Sale)?
                                               5
home despite having sold appellants’ promissory note to Freddie Mac – and has the evidence to prove it –  or it did not. (See Civ. Code, § 2924h, subd.(b) [the “present
beneficiary” may credit bid at trustee’s sale].) It really is a simple matter. Is that too
much to ask when people are losing their homes?

       RUBIN, J.

U.S. District Court
Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:12-cv-09352-CM

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This government is not for the people!

Bloomberg-

A trial attorney from the Securities and Exchange Commission said his bosses were too “tentative and fearful” to bring many Wall Street leaders to heel after the 2008 credit crisis, echoing the regulator’s outside critics.

James Kidney, who joined the SEC in 1986 and retired this month, offered the critique in a speech at his goodbye party. His remarks hit home with many in the crowd of SEC lawyers and alumni thanks to a part of his resume not publicly known: He had campaigned internally to bring charges against more executives in the agency’s 2010 case against Goldman Sachs Group Inc. (GS)

The SEC has become “an agency that polices the broken windows on the street level and rarely goes to the penthouse floors,” Kidney said, according to a copy of his remarks obtained by Bloomberg News. “On the rare occasions when enforcement does go to the penthouse, good manners are paramount. Tough enforcement, risky enforcement, is subject to extensive negotiation and weakening.”

[BLOOMBERG]

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK

THE BANK OF NEW YORK MELLON FKA THE
BANK OF NEW YORK, AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE,CWMBS INC.,
CI-IL MORTGAGE PASS-TH.ROUGH TRUST 2002-26,
MORTGAGE PASS THROUGH CERTIFICATES,
SERIES 2002-26
Plaintiff,

– against –

JAMES SPERO, MAUREEN KEEFE-SPERO, CHASE
BANK USA, N.A., AMERICAN EXPRESS BANK, FSB,
FAIRFIELD AT RIVERHEAD LLC., JPMORGAN CHASE
BANK, N.A., NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, JOSE ANTONIO PADILLA
NEW YORK ST A TE ON BEHALF OF UNIVERSITY
HOSPITAL IP, UNITED STATES OF AMERICA,
JOHN SPERO,
Defendants.

EXCERPT:

Plaintiff now moves for summary judgment on its complaint contending that defendants Spero failed
to comply with the terms of the loan agreement and mortgage, that their answer raised no issues of fact for
trial and, that no valid affirmative defenses were raised by the defendants. In support of its motion, plaintiff
submits among other things: the sworn affidavit of Jay Robert Karnes, assistant vice president of Bank of
America, N.A., as successor by merger to BAC Home Loans Servicing, LP (BANA); the affirmation of
Mark Golab, Esq.; the affirmation of Peter Dinsmore, Esq. pursuant to the Administrative Order of the Chief
Administrative Judge of the Courts (A0/431/11 ); the pleadings; the note, mortgage, corrective assignment
of mortgage; a notice of default; notices pursuant to RP APL§§ 1320, 1303 and 1304; affidavits of service
for the summons and complaint; an affidavit of service of the instant summary judgment motion upon the
attorneys for defendants Spero; and a proposed order appointing a referee to compute. Defendants Spero
cross-move seeking an order dismissing plaintiffs complaint or in the alternative, a denial of plaintiffs
summary judgment application. Plaintiff in reply opposes defendants’ cross-motion.
“(l]n an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the
production of the mortgage, the unpaid note, and evidence of default” (Republic Natl. Bank of N. Y. v
O’Kane, 308 AD2d 482, 764 NYS2d 635 [2d Dept 2003]; see Argent Mtge. Co., LLC v Mentesana, 79
AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Once a plaintiff has made this showing, the burden then
shifts to defendant to establish by admissible evidence the existence of a triable issue of fact as to a defense
(see Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).

Where, as here, standing is put into issue by the defendant, the plaintiff is required to prove it has
standing in order to be entitled to the reliefrequested (see Deutsche Bank Natl. Trust Co. v Haller, 100
AD3d 680, 954 NYS2d 551 [2d Dept 2011]; US Bank, NA v Collymore, 68 AD3d 752, 890 NYS2d 578
[2d Dept 2009]; Wells Fargo Bank Minn., NA v Mastropaolo, 42 AD3d 239, 837 NYS2d 247 [2d Dept
2007]). In a mortgage foreclosure action “[a] plaintiff has standing where it is the holder or assignee of both
the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA
v Hernandez. 92 AD3d 843, 939NYS2d 120 [2d Dept 2012]; US Bank, NA v Collymore, 68 AD3d at 753;
Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 888 NYS2d 914 [2d Dept 2009]).

Here, plaintiff has failed to establish,primafacie, that it had standing to commence this action. The
evidence submitted by the plaintiff in support of its motion did not demonstrate that the note was physically
delivered or assigned to it prior to the commencement of the action. The affidavit from BANA’s assistant
vice president, Jay Robert Karnes, did not provide any factual details of a physical delivery or assigm11ent
of the note and thus. failed to establish possession of the note prior to commencing this action (HSBC Bank
USA v Hernandez, 92 AD3d 843; Citimortgage, Inc. v Stose/, 89 AD3d 887, 934 NYS2d 182 [2d Dept
2011 ]). Conclusory boiler plate statements such as “[p ]laintiff is the holder of the note” will not suffice
when standing is raised as a defense (see Deutsche Bank Natl. Trust Co. v Barnett, 88 AD3d 636, 931
NYS2d 630 [2d Dept 2011]; Aurora Loan Services, LLC v Weis bl um, 85 AD3d 95, 923 NYS2d 609 [2d
Dept 2011 ]).

Furthermore. the submissions before the court do not establish through competent evidence the
authority or Jay Robert Karnes, an assistant vice president to BANA, a non-party to this mortgage
foreclosure action. to act on behalf of plaintiff Bank of New York in this matter (see HSBC v Betts, 67
AD3d 735. 888 NYS2d 203 [2d Dept 2009]). Similarly, the submissions fail to establish through competent
evidence that BANA is the servicing agent for plaintiff Bank of New York. Moreover, the affidavit of Jay
Robert Karnes erroneously states that he is ” … authorized to sign this affidavit on behalf of plaintiff, Bank
of America, N .A … ” (emphasis added). Thus, plaintiff has also failed to present evidence sufficient to
support the entry of an order for the relief requested.

Lastly. plaintiffs application is procedurally defective for failure to comply with CPLR 3215 (g)(l)
and CPLR 321 ‘i (g)(3}(i) as same applies to those defaulting defendants who were served and have neither
appeared nor answered.

Since defendants’ cross-motion (002) has successfully raised an issue of fact as to standing,
 plaintiffs motion for summary judgment against defendants Spero, to strike their answer and for an order
or reference is denied. Defendants’ cross-motion is granted solely to the extent provided for herein.
The foregoing constitutes the decision and order of the court.

HOUSTON, April 7, 2014 – Today, 18 institutional investors represented by Gibbs & Bruns LLP (“Institutional Investors”) announced they have reached an agreement with Citigroup (“Citi”) under which Citi will make a binding offer (“Offer”) to the Trustees of 68 RMBS Trusts issued by Citi to settle mortgage repurchase claims.  The Institutional Investors support the agreement and have asked the Trustees to accept it.  The Trusts included in the Offer are listed on Exhibit “A.”   

The Trustees will have until June 30, 2014 to accept the Offer, which may be extended pursuant to the terms of the Offer for an additional forty-five days.  The Offer includes the following key terms:

1.      Payment by Citi of $1.125 billion in cash to the Trusts to settle mortgage repurchase claims;

2.      Reimbursement to the Trustees of expenses associated with their evaluation of the Offer; and

3.      A release of all repurchase claims that have been or could have been asserted by the Trusts.

 The Institutional Investors who are parties to the agreement are: 

·         Bayerische Landesbank

·         BlackRock Financial Management Inc.

·         Cascade Investment, L.L.C.

·         Federal Home Loan Bank of Atlanta

·         Federal Home Loan Mortgage Corporation

·         Goldman Sachs Asset Management, L.P.

·         ING Investment Management LLC

·         Invesco Advisers, Inc.

·         Kore Advisors, L.P.

·         Landesbank Baden-Wuerttemberg

·         Metropolitan Life Insurance Company

·         Pacific Investment Management Company LLC

·         Sealink Funding Limited

·         Teachers Insurance and Annuity Association of America

·         The Prudential Insurance Company of America

·         The TCW Group, Inc.

·         Thrivent Financial for Lutherans

·         Western Asset Management Company

The agreement is subject to regulatory approval by FHFA and acceptance of the Offer by the Trustees.  Pursuant to the agreement, the Institutional Investors have requested that the Trustees accept the Settlement.  The Institutional Investors have also agreed to use their reasonable best efforts to obtain court approval of the settlement, if the Trustees elect to accept the Offer and seek a judicial instruction concerning their decision to do so.  Attorneys’ fees for the Institutional Investors’ counsel, Gibbs & Bruns, will be paid in addition to—and not out of—the Settlement Payment upon the latter of the Trustees’ Acceptance or Final Court Approval, if a judicial instruction is sought. 

read more [GIBBS & BRUNS]

Exhibit A

###

Tampa Bay Times-

A Tallahassee attorney engaged in a bitter property fight with the state is accusing Attorney General Pam Bondi of destroying emails, failing to retain text messages and violating the state’s public records laws.

Bondi, the chief custodian of the state’s Sunshine law, has acknowledged some documents were inadvertently missing from the records request of Stephen R. Andrews but vigorously rejects his claims.

“These allegations are without merit,” said Bondi spokesman Whitney Ray.

[TAMPA BAY TIMES]

image: Orlando Weekly

JOSEPHINE BRISTOL, Appellant,
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE FIRST FRANKLIN MORTGAGE LOAN TRUST 2006 FF15, Appellee.

Jeffrey S. Lapin and N. Alejandra Arroyave of Lapin & Leichtling, LLP, Coral Gables, for appellee.

MAY, J.

A borrower appeals a final judgment of foreclosure. She argues, among other issues, that the trial court erred in entering summary judgment because a genuine issue of material fact existed as to whether the bank had standing. On this single issue, we agree with the borrower and reverse and remand.

The borrower executed a mortgage and note to the lender. The mortgage named MERS as the mortgagee, acting as a nominee for the lender and the lender’s successors and assigns. When the borrower defaulted on the note, she was sent a notice of default, informing her that she could cure the default by paying a certain amount that included two months payments plus late fees and interest. The next day, the borrower’s normal payment posted to her account.

The servicer and borrower entered into a “Forbearance to Modification Agreement.” Under the agreement, the servicer agreed to forbear from pursuing foreclosure proceedings and consider a possible loan modification if the borrower made her May, June, and July payments. The borrower timely paid the first two payments, but her July payment was one day late.

In July, the borrower signed a “Home Affordable Modification Trial Period Plan” (“HAMP trial plan”). The trial period allowed the borrower to make reduced payments for July, August, and September. During that period, the servicer would review the borrower’s eligibility for a loan modification. The HAMP trial plan clearly indicated that the modification was contingent on certain eligibility requirements. If the borrower qualified for a loan modification, she would be sent a fully executed copy of the modification agreement. If she did not qualify, the borrower would be sent a written notice that she did not qualify. The borrower made all three payments late. In January of the following year, the servicer sent the borrower a notice that she did not qualify for the loan modification.

MERS assigned the mortgage to the bank, which filed its verified complaint for foreclosure. The borrower answered the complaint, asserting the bank’s lack of standing and a lack of notice of default, and filed a counterclaim.

The bank moved to dismiss the counterclaim. The trial court granted the motion. The bank then moved for summary judgment and attached copies of: the notice of default, the Forbearance to Modification Agreement, the HAMP trial plan, the letter informing the borrower that she did not qualify for the loan modification, and the borrower’s payment history. The bank also attached an affidavit of a director employed by the servicer, which authenticated the attached documents. The bank filed the original note, which contained a blank indorsement.

The trial court granted the motion for summary judgment and entered a final judgment of foreclosure. The borrower now appeals that judgment.

The borrower argues that the trial court erred in granting summary judgment because the bank failed to refute her affirmative defenses of lack of standing and lack of notice of default. The bank responds that it proved standing through the assignment of mortgage, which was executed before the foreclosure action commenced.

We have de novo review. McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 172 (Fla. 4th DCA 2012) (citing Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)).

Summary judgment is appropriate where the pleadings and evidence show “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). “When a party raises affirmative defenses, `a summary judgment should not be granted where there are issues of fact raised by the affirmative defenses which have not been effectively factually challenged and refuted.'” Alejandre v. Deutsche Bank Trust Co. Ams., 44 So. 3d 1288, 1289 (Fla. 4th DCA 2010) (quoting Cufferi v. Royal Palm Dev. Co., 516 So. 2d 983, 984 (Fla. 4th DCA 1987)).

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean, 79 So. 3d at 173. Standing may be established by either an assignment or an equitable transfer of the note and mortgage prior to the filing of the complaint. Id.

Here, the bank filed the original note more than two years after the complaint was filed. The note contained an undated, blank indorsement, which was insufficient to prove standing at the time the complaint was filed. See Green v. JPMorgan Chase Bank, N.A., 109 So. 3d 1285, 1288 (Fla. 5th DCA 2013). Therefore, an issue of material fact remained as to when the note was transferred to the bank.

The bank relies on the “Assignment of Mortgage” from MERS to support standing, but the “assignment of mortgage reflects transfer of only the mortgage, not the note.” Vidal v. Liquidation Props., Inc., 104 So. 3d 1274, 1277. The bank argues that the note followed the mortgage when the mortgage was assigned to the bank. This argument is flawed. The mortgage follows assignment of the note. Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1118 (Fla. 2d DCA 2011). But “[a]n assignment of the mortgage without an assignment of the debt creates no right in the assignee.” Vance v. Fields, 172 So. 2d 613, 614 (Fla. 1st DCA 1965).

The trial court erred in granting summary judgment because an issue of material fact existed as to when the bank took possession of the note. We find no merit in the other issues raised by the borrower, which include that issues of fact remained concerning the lack of notice of default, waiver, and dismissal of the counterclaim.

Reversed and remanded for proceedings consistent with this opinion.

STEVENSON and GERBER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

De Ja Vu — after Governor Scott was caught doing the same…

FOR IMMEDIATE RELEASE:
April 4th, 2014

FOR MORE INFORMATION CONTACT:
Madelyn Skene | 850-445-9551 | mmskene@comcast.net

Attorney General Bondi’s Office Accused of Violating Florida Law

Wonder what the kickback percentage fees of this amount went to the Corrupted Politicians?

HuffPO-

The average Wall Street bonus increased 15 percent in 2013, bringing the industry’s overall bonuses to a total of $26.7 billion, the largest since 2008. This milestone came just a few months after an NBC News/Wall Street Journal poll found that only 14 percent of Americans have a positive opinion of Wall Street, five years after a financial crisis spurred by these institutions. We’re talking congressional popularity numbers. Ouch.

We’re always told that “Main Street” is directly affected by the state of our financial markets. And yet, even as the stock market continues to rebound, average American workers struggle to find employment, keep their homes and even put food on the table. Wall Street’s earnings meanwhile continue to break records. Seems like a rather one-sided relationship as of late … but outside the decadent halls of Wall Street, that money could be put to excellent use.

With $26.7 billion, we could …

[HUFFINGTONPOST]

BARBARA R. GUDEMAN and EDWARD J. GUDEMAN, Plaintiffs,
v.
SAXON MORTGAGE SERVICES, INC., OCWEN FINANCIAL CORPORATION and MORGAN STANLEY PRIVATE BANK, N.A., Defendants.

OPINION AND ORDER DENYING MOTION TO DISMISS and SETTING SCHEDULING CONFERENCE

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

This matter was removed from the Oakland County Circuit Court, State of Michigan on August 5, 2013. Plaintiffs Barbara R. Gudeman and Edward J. Gudeman filed an action against Defendants Morgan Stanley Private Bank, N.A. f/k/a Morgan Stanley Dean Witter Credit Corporation (“Morgan Stanley”), Saxon Mortgage Services, Inc. (“Saxon”), and Ocwen Financial Corporation (“Ocwen”) (collectively, “Defendants”) alleging: Breach of Contract (Count I); Slander of Title(Count II); and, Specific Performance (Count III).

The property at issue is located in Bloomfield Township, Michigan. On December 27, 1999, a Mortgage was obtained from Morgan Stanley which was recorded in the Oakland County Register of Deeds on January 27, 2000. (Comp., ¶ 4) Saxon serviced the Mortgage. (Comp., ¶ 5) Ocwen is an Assignee and Purchaser of the Mortgage as recorded in the Oakland County Register of Deeds. (Comp., ¶ 6) Plaintiffs assert that the Mortgage was fully satisfied, leaving a zero balance for the loan securing the Mortgage. (Comp., ¶ 7) Notwithstanding the satisfaction of the loan and Mortgage, Defendants have failed to provide Plaintiffs with a discharge of the Mortgage, despite numerous requests by Plaintiffs. (Comp., ¶ 8) Plaintiffs are unable to refinance and refusal to discharge the Mortgage is a breach of the conditions of the Mortgage. (Comp., ¶¶ 9-10)

This matter is now before the Court on Ocwen’s Motion to Dismiss. Morgan Stanley and Saxon joined in the motion. A response and reply have been filed.

II. ANALYSIS

A. Standard of Review

Rule 12(b)(6) of the Rules of Civil Procedure provides for a motion to dismiss based on failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff’s obligation to provide the `grounds’ of his `entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.] Factual allegations must be enough to raise a right to relief above the speculative level….” Id. at 555 (internal citations omitted). Although not outright overruling the “notice pleading” requirement under Rule 8(a)(2) entirely, Twombly concluded that the “no set of facts” standard “is best forgotten as an incomplete negative gloss on an accepted pleading standard.” Id. at 563. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of `entitlement to relief.'” Id. at 557. Such allegations are not to be discounted because they are “unrealistic or nonsensical,” but rather because they do nothing more than state a legal conclusion-even if that conclusion is cast in the form of a factual allegation. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). In sum, for a complaint to survive a motion to dismiss, the non-conclusory “factual content” and the reasonable inferences from that content, must be “plausibly suggestive” of a claim entitling a plaintiff to relief. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not shown that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001).

B. Discharge/Satisfaction of Mortgage

This matter involves a second mortgage on the property at issue granted by Plaintiffs to Morgan Stanley on December 27, 1999. On June 28, 2007, Edward Gudeman filed a Voluntary Petition for chapter 7 bankruptcy. (Ex. 2, Motion) On December 20, 2007, Edward Gudeman’s debts were discharged. (Ex. 5, Motion) Saxon thereafter sent a letter to Edward Gudeman indicating the loan was charged off on April 29, 2011, and a 1099-C Cancellation of Debt form indicating that the $207,910.07 debt was cancelled by Morgan Stanley. (Ex. 6, Motion) On June 14, 2012, the Mortgage was transferred to Ocwen for servicing.

Defendants argue that Plaintiffs have failed to state a claim upon which relief may be granted since the Mortgage has not been discharged and that Defendants have no duty to discharge the Mortgage. They assert that all three claims alleged by Plaintiffs against the Defendants must be dismissed since they have no duty under Michigan or federal law to discharge the Mortgage. Defendants argue that the bankruptcy discharge is as to the personal loan, but not as to the “in rem” portion under the Mortgage.

Plaintiffs respond that they are not arguing that the bankruptcy discharge served to cancel the underlying note, agreeing that the bankruptcy discharge extinguishes the liability on the note and that the bankruptcy discharge is an injunction against the enforcement of the note. Plaintiffs instead argue that Defendants voluntarily extinguished the liability on the note years after the bankruptcy filing since Defendants cancelled and extinguished the underlying debt. Plaintiffs claim that since there is no debt, then there can be no lien to foreclose and the mortgage is discharged as well, citing Fifth Third Bank v. Danou Technical Park, LLC, 2012 WL 933953 (Mich. App. Mar. 20, 2012).

Defendants reply that the issuance of Form 1099-C does not operate to extinguish the Mortgage and that the informational letter sent with the Form 1099-C is not an admission by the creditor that it has discharged the debt and can no longer pursue collection. Defendants also assert that Plaintiffs failed to address the Michigan statute, MCL § 545.41 and MCL § 545.44(1) in their response.

A discharge of a Mortgage is governed by MCL § 565.41 which provides,

(1) Within the applicable time period in section 44(2) after a mortgage has been paid or otherwise satisfied, the mortgagee or the personal representative, successor, or assign of the mortgagee shall prepare a discharge of the mortgage, file the discharge with the register of deeds for the county where the mortgaged property is located, and pay the fee for recording the discharge.

MCL § 565.41(1). Liability for refusal or neglect to discharge is governed by MCL § 656.44:

(1) If a mortgagee or the personal representative or assignee of the mortgagee, after full performance of the condition of the mortgage, whether before or after a breach of the mortgage, or, if the mortgage is entirely due, after a tender of the whole amount due, within the applicable time period in subsection (2) after being requested and after tender of the mortgagee’s reasonable charges, refuses or neglects to discharge the mortgage as provided in this chapter or to execute and acknowledge a certificate of discharge or release of the mortgage, the mortgagee is liable to the mortgagor or the mortgager’s heirs or assigns for $1,000.00 damages. The mortgagee is also liable for all actual damages caused by the neglect or refusal to the person who performs the condition of the mortgage or assigns, or to anyone who has an interest in the mortgaged premises. Damages under this section may be recovered in an action for money damages or to procure a discharge or release of the mortgage. The court may, in its discretion, award double costs in an action under this section.

MCL § 565.44(1).

Even though bankruptcy may discharge a debtor’s personal liability on a mortgage note, bankruptcy does not discharge a debtor’s in rem liability on the mortgage lien. Johnson v. Home State Bank, 501 U.S. 78, 84 (1991); Atwood v. Schlee, 269 Mich. 322, 325 (1934); In re Glance, 487 F.2d 317, 320-21 (6th Cir. 2007). The case cited by Plaintiffs, Fifth Third Bank, is not applicable since it was an action to quiet title and did not involve a discharge under bankruptcy proceedings, but a transfer of property as payment for the debt secured by a note with a mortgage. Fifth Third Bank, 2012 WL 933983, at 6. In that case, the appellate court found that the transfer of the property was considered a payment in full under the note, therefore since the note was fully paid, a foreclosure action could not be commenced to secure a payment of a non-existent debt. Id. at *7. Here, none of the Defendants are seeking a foreclosure action, therefore, Fifth Third Bank is not applicable and there is no requirement that the Mortgage be discharged.

In this case, all parties agree that there was no payment of the underlying debt, but that the debt was discharged in bankruptcy. Plaintiffs argue that the June 3, 2013 letter to Plaintiffs by Morgan Stanley indicating that the loan was “charged off” on April 29, 2011 and that they no longer have any obligations to Saxon and that the balance owed on the loan is $0.00 is evidence of a “discharge” of the note. They claim that since the note has been “discharged” by Morgan Stanley, this means that the Mortgage is “satisfied” and is voluntarily extinguished. Plaintiffs argue that Defendants have not attempted to collect the debt from Barbara Gudeman, since she has not filed for bankruptcy, which is further evidence that the underlying Mortgage has been satisfied.

There is no specific case cited by any party in Michigan or this Circuit that holds that a mortgage is discharged based on a letter with a Form 1099-C. Michigan courts have held in general that “[i]t is a general rule that the cancellation of a mortgage on the record is not conclusive as to its discharge, or as to the payment of the indebtedness of secured thereby.” Schanhite v. Plymouth Savings Bank, 277 Mich. 33, 39 (1936). It is “the well-settled rule that the acceptance by a mortgagee of a new mortgage and his cancellation of the old mortgage do not deprive the mortgage of priority over intervening liens.” Washington Mut. Bank v. ShoreBank Corp., 267 Mich. App. 11, 126 (2005).

In this district, a quiet title action by a plaintiff was dismissed where the plaintiff had purchased a property under a warranty deed from another who had received a Form 1099-C cancellation of debt. The plaintiff was under the impression that her interest was superior to the mortgage subject to the Form 1099-C. The district court noted that the plaintiff’s mortgage was not superior to the previously recorded mortgage. See Richards v. Bank of New York Mellon, 2013 WL 4054586 (E.D. Mich. Aug. 12, 2013). Courts in Michigan which have interpreted the term “otherwise satisfied” in MCL § 565.41 have held that if “evidence” is shown as to the intention of the transaction that it was not intended to “satisfy” the mortgage, then as a matter of law, the mortgage is not discharged. Agema, L.L.C. v. GreenStone Farm Credit Services, F.L.C.A., 2013 WL 296656 (Mich. App. May 14, 2013). The Hermiz case cited by Defendant is inapplicable since it did not involve a Form 1099-C letter as in this case. Hermiz v. Kamma, 2005 WL 2806226 (Oct. 27, 2005).

In this case, the Court finds that at this Rule 12(b)(6) stage, Plaintiffs have stated a claim that it was the “intention” of Defendants to “satisfy” the mortgage based on its Form 1099-C letter. There may be “evidence” that Defendants did not intend for the Form 1099-C letter to act as a discharge of the mortgage, which can be developed through discovery. However, no cases in this Circuit or in Michigan have held that under the Michigan statute governing discharges of mortgages, MCL § 565.41, the Form 1099-C letter does not constitute a discharge of the underlying mortgage and, applies to the “otherwise satisfied” language of the statute. As noted above, the Courts in Michigan interpreting MCL § 565.41 have reviewed “evidence” to determine whether the “otherwise satisfied” language was fulfilled as to the intention of the mortgagee to discharge the mortgage.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. No. 5) is DENIED.

IT IS FURTHER ORDERED that Defendants file an Answer by April 7, 2014.

IT IS FURTHER ORDERED that a Scheduling Conference is set in this matter for April 28, 2014, 2:00 p.m.

Truth-Out

In “All the Presidents’ Bankers: The Hidden Alliances That Drive American Power,” Wall Street journalist (and former Goldman Sachs executive) Nomi Prins writes a painstakingly researched history of the financial industry’s collusion with the White House to create a self-serving United States financial policy. Get the book directly from Truthout by clicking here.

Prins’ book uses short passages to weave together in understandable terms a longterm relationship between economic and political power that has remained unchallenged. Yes, there were occasional periods when Wall Street did not receive everything that it wanted from the White House (such as in the New Deal). However, adding up the ledger of government policy toward Wall Street results in a decisive victory for the financial titans.

Robert Reich writes of “All the Presidents’ Bankers,”The relationship between Washington and Wall Street isn’t really a revolving door. It’s a merry-go-round. And, as Prins shows, the merriest of all are the bankers and financiers that get rich off the relationship, using their public offices and access to build private wealth and power.”

[TRUTH-OUT]

2. Petition by

   chris wyatt

   Spring, TX, United States

    

For foreclosure defense, mortgage fraud services please go to https://www.mortgageauditsonline.com/

My name is Chris Wyatt, I am a former Litton Loan Servicing executive who left the mortgage and banking industry in 2010 after 21 years in the business to consult with homeowners and their attorneys on mortgage-related cases. I have been retained as an expert in a number of high profile cases, including class action cases involving loan modifications, HAMP, force placed insurance, and property inspection fees, brought against the mortgage loan servicing industry. In addition, I was recently contacted by a prominent and aggressive state regulator seeking assistance in providing documentation and evidence reflecting wrongful servicing practices occurring with the mortgage loan servicing industry.

 Over the past several months, I have been attempting to assist a number of Select Portfolio Servicing homeowners’ who are, among other things, enduring a never ending cycle of frustration and confusion concerning the servicing practices of Select Portfolio Servicing. Based on my review, Select Portfolio Servicing has, among other things, failed to appropriately and timely apply payments, assessed unwarranted fees, failed to timely respond to loan modification requests, or wrongfully denied a loan modification requests.

 For example, Select Portfolio Servicing advises a homeowner seeking loss mitigation options that a single point of contact (“relationship manager”) has been assigned to assist with the communications, questions, or status’ during the loss mitigation process. Contrary to this assertion and mandates issued by regulators, I found that homeowners are being tossed from one representative to another when seeking information concerning the status of loss mitigation. If that is the case, why even tell homeowners that they have been assigned a dedicated relationship manager?

 Given the foregoing and the lack of good faith effort on Select Portfolio Servicing’s part to assist homeowners, one of which is elderly, I believe it is in best interest of homeowners to join together and seek regulatory intervention into the servicing practices of Select Portfolio Servicing. In order to obtain regulatory intervention, we must be able to a larger number of documented instances of unfair and deceptive practices being utilized by Select Portfolio Servicing.

 Therefore, I am requesting homeowners execute this petition and consider providing me documented details concerning their experience with Select Portfolio Servicing in order to show regulatory agencies that Select Portfolio Servicing is operating in a manner that is contrary to mandates issued by regulatory agencies for prudent and fair servicing practices.

 For clarification, I do not charge individual homeowners for any of my consulting, assistance, or review services and will not divulge any information concerning a homeowner’s account without their express permission. Instead, my efforts are intended to assist homeowners with navigating the frustrating world of mortgage loan servicing and to force appropriate changes in the practices of Select Portfolio Servicing to ensure all homeowners are receiving fair and equitable treatment.

 If you have interest in contacting me directly or sharing your story, you may email me at cwyatt@wyattconsultingservices.com

https://www.mortgageauditsonline.com/

Decided on April 2, 2014

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2013-06598
(Index No. 19173/09)

Rubin & Licatesi, P.C., Garden City, N.Y. (Amy J. Zamir of
counsel), for appellant.
Sheldon May & Associates, P.C. (Stim & Warmuth, P.C.,
Farmingville, N.Y. [Glenn P.
Warmuth], of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Patricia Hamilton appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2013, which, after a hearing to determine the validity of service of process, in effect, denied those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court (Adler, J.), dated November 22, 2011, entered against her upon her failure to appear or answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law and the facts, with costs, and those branches of the motion of the defendant Patricia Hamilton which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale dated November 22, 2011, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction are granted.

This Court possesses authority to review a determination rendered after a hearing that is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Lopez v DePietro, 82 AD3d 715, 716; American Home Mtge. v Villaflor, 80 AD3d 637).

At the hearing, the plaintiff’s process server, who refreshed his recollection with contemporaneous records, testified that he served the appellant with the summons and complaint by employing the personal delivery and mail method pursuant to CPLR 308(2), by delivering, inter alia, a copy of the summons and complaint to Ashley Hamilton, a member of the appellant’s family, at the appellant’s residence in Mount Vernon, and thereafter “doing a follow-up mailing.” The Supreme Court properly found that the process server could not have delivered the summons and complaint to Ashley, since Ashley established through her testimony and documentary evidence that she was physically in Petersburg, Virginia, at college, on the date delivery was allegedly made to her in Mount Vernon (see Washington Mutual Bank v Holt, 113 AD3d at 755; Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074, 1075). However, the Supreme Court’s finding that the process server [*2]delivered the summons and complaint to the appellant’s youngest daughter, who, at the time of service, was 15 ½ years old, was not warranted by the facts (cf. Samet v Binson, 67 AD3d 988; Ortiz v Jamwant, 305 AD2d 477, 478). There was insufficient evidence at the hearing to establish that the description in the affidavit of service matched the actual appearance of the appellant’s youngest daughter (see Warney v Haddad, 194 AD2d 478, 479; Matter of Chemical Bank v Davis, 133 AD2d at 757; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139). Furthermore, neither the affidavit of service nor the process server’s testimony established that the summons and complaint were mailed to the appellant’s last known residence (see CPLR 308[2]).

Viewing the evidence in its totality, the plaintiff failed to meet its burden of proving by a preponderance of the evidence that jurisdiction over the appellant was obtained by proper service of process (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343). Accordingly, the Supreme Court should have granted those branches of the appellant’s motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered against her and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

The appellant’s remaining contention has been rendered academic.
RIVERA, J.P., DICKERSON, COHEN, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

“It’s a contradiction of their affordable housing mission,” said Tom Waters, housing policy analyst with the Community Service Society, on hearing of the equity stake.

Real Deal-

The government-sponsored enterprise Fannie Mae holds a confidential, $60 million equity stake in the 3,962-unit apartment portfolio that Urban American and other partners bought for $938 million in 2007, several sources told The Real Deal.

The stake remained under wraps even as housing advocates publicly pressured Fannie and the portfolio’s publicly-known owners, Urban American Management and the City Investment Fund, over what the advocates considered to be an overleveraged acquisition, during and after the prior real estate boom.

Fannie’s investment is only coming to light now because an affiliate of the global Toronto-based landlord Brookfield Asset Management is negotiating to buy a stake in the five parcel package, valued at just over $1 billion, sources said.

[THE REAL DEAL]

Great to see Abigail write again!

Benzinga-

Special Interest Tax Break #9: Calling Payments for Law Breaking Ordinary Business Expenses

When companies “pay” huge amounts of money to settle claims that they broke the law, don’t believe the hype: the bill may be a lot less than advertised.

That’s because we taxpayers may be picking up part of the tab.

[BENZINGA]

How in the hell are ALL these cartels still in business? How? Why? Can anyone please tell us? Just wow…

Reuters-

Bank of America Corp. should face U.S. Securities and Exchange Commission claims over $855 million in mortgage-backed securities, said a judge who last week nudged the lender toward victory in a Justice Department suit over the same instruments by advising that it be thrown out.

Bank of America’s request to dismiss the SEC case should be denied because the regulator adequately laid out its claims that the bank didn’t disclose in offering papers that most of the pooled mortgages for the securities were bought wholesale from third-party brokers, U.S. Magistrate Judge David Cayer in Charlotte, North Carolina, said yesterday.

“The complaint alleges sufficient facts to establish that defendants negligently made material misrepresentations and omissions here,” Cayer said in a recommendation to U.S. District Judge Max O. Cogburn Jr., who will make the decision.

[REUTERS]

CRED-

About a week after suing HSBC PLC subsidiaries on predatory lending charges, Cook County has filed a similar suit against Bank of America Corp.

The county blames the residential lenders for contributing to the foreclosure crisis, demanding that they compensate it for the losses that it incurred as a result.

“This predatory lending crisis caused tremendous tangible and intangible damage, particularly to African American and Latino communities in Cook County,” Cook County President Preckwinkle said in a statement. “These practices led to the erosion of the tax base, the loss of property tax revenue, out-of-pocket costs relating to abandoned or vacant properties, and other damages to the fabric of the communities and residents arising from the resulting urban blight.”

The county sued Charlotte, N.C.-based Bank of America, and Countrywide Financial Corp. and Merrill Lynch & Co., businesses it bought in 2008, yesterday in U.S. District Court in Chicago. The suit includes much of the same language the county used in a federal lawsuit it filed March 24 against HSBC businesses.

[CRED]