Wow! Are judges finally coming to terms? All I have to say is watch out for one hell of a ruling coming out shortly, slamming the crap out of one of the banksters.

It’s bout time.

NYT-

The Bank of America lawyer laid down a patented rhetorical move heard in courts across America. Your Honor, this Orange County, N.Y., homeowner — a New York City police officer — didn’t make enough money to qualify for a mortgage modification. He didn’t send us the right documents.

He didn’t, he didn’t, he didn’t, and so we should be allowed to foreclose.

Justice Catherine M. Bartlett of New York State Supreme Court cut off the lawyer. You, she said, are telling me lies.

“Bank of America got a bailout, and this is an outrage, how this man has been treated,” she said. “Hard-working, middle-class Americans are trying to make it, trying to refinance with your bank.”

Either bank officials show up in person, the justice said, or I’m going to order them “here in handcuffs.”

[NEW YORK TIMES]

Excerpt:

In all mortgage foreclosure actions pending on May 9,2011, before any merits hearing in the case, or if an order of foreclosure has been entered, before any foreclosure sale, the Mortgagee shall, through its attorney of record, file with the court and serve upon every Mortgagor a notice of the Mortgagots right to foreclosure intervention. All proceedings in the foreclosure action shall be stayed until completion of such foreclosure intervention.

No foreclosure hearing or foreclosure sale may be held in the foreclosure action until the Mortgagee’s attorney certifies the following:

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[ipaper docId=54538968 access_key=key-fp3scs2ub28q7ondaw5 height=600 width=600 /]

via Mandelman

It should be readily apparent that there are an overabundance of reasons for Bank of America’s CEO, Bryan Moynihan, to be regarded as a massive rear end in a province undeniably replete with rear ends of utterly mammoth proportion.  Even the adjectives in that last sentence don’t begin to do the nature of his posterior justice.

To begin with, let’s just acknowledge that Moynihan is a corporate lawyer.  He graduated in 1981 from Brown University… a history major that co-captained the rugby team.  He then went on to Notre Dame Law School.

In 1993 he went to work at Fleet Boston as deputy general counsel, but after Bank of America acquired Fleet in 2004 Moynihan became the bank’s president of global wealth and investment management, and from October 2007 to December 2008, he served as the bank’s president of global corporate and investment banking.  But from December 2008 to January 2009, Moynihan once again returned to his roots, serving as general counsel for Bank of America, and he became CEO of Merrill Lynch after its oh-so-well-thought-out-and-executed sale to Bank of America in September 2008.

Via: Daily Finance

Many state attorneys general, federal law enforcers and regulators say they want big banks to pay for their fraudulent foreclosures and abusive mortgage servicing practices by reducing what borrowers owe them by some $20 billion. That’s the amount the banks allegedly saved by doing a lousy job servicing troubled mortgages. (That math is questionable at best, Yves Smith noted when that figure began making the rounds.)

But the solution to this problem is not a settlement with the banks that mandates principal write-downs. Principals on these loans should be reduced, but it should be done in the most efficient, effective way: Congress should give bankruptcy judges back a power they once had — the right to reduce the principal on a mortgage to the home’s current market value. In other words: Bring back the cram down.

A Utah House committee Tuesday voted down a bill that would have given homeowners the name of someone with whom they could try to renegotiate a loan during the foreclosure process.

The Business and Labor Committee voted 6-5 to recommend against HB326 despite sponsor Rep. LaVar Christensen’s assurance it was tilted in favor of banks, mortgage lenders and note holders.

At the time a default notice is filed, the bill would have required the holder of the mortgage note to register the name and contact information of a “special servicer” who had authority to renegotiate the terms of a loan before a property could be sold. It also would have required the servicer to give “reasonable consideration” to a home-owner’s request for relief.

The bill pushed by the Draper Republican was created in response to thousands of foreclosures and threatened foreclosures in Utah, the result of the bursting of the real estate bubble in 2007. Home-owners say lenders have failed to negotiate loan modifications with them and, in some cases, they cannot even find anyone to speak to about their loans.

Continue reading … The Salt Lake Tribune

H.B. 326 Substitute
Trust Deed Foreclosure Changes — Christensen, L.

Drafting Attorney: Robert H. Rees

Bill List | Bills by Representative, Senator, or Subject
Similar Bills: Mortgage Business Real Estate

This bill has been substituted. The substitute is H.B. 326 Second Substitute

This bill is a substitute bill. The bill that was substituted is H.B. 326

Bill Status/Votes
Last Action: 01 March 2011, Bill Substituted by Standing Committee
Last Location: House Business and Labor Committee
Bill Status/Votes Last Updated: 1 March 2011, 11:23 AM

Audio Recordings of Debates (Software to listen to audio recordings can be found at real.com.  Questions about audio/video streaming.)
House Business and Labor Committee 3/1

Bill Text (If you are having trouble viewing PDF files, Install Latest Adobe Reader)
Introduced HTML | PDF | WP Zipped 71K  Last Updated: 24 February 2011, 8:13 AM
Compare H.B. 326 Substitute to H.B. 326

Fiscal Note
Fiscal Note HTML | PDF Last Updated: 24 February 2011, 7:59 AM

Printed copies of bills may be obtained from Legislative Printing.

By Joe Rauch and Clare Baldwin

CHARLOTTE, N.C./NEW YORK (Reuters) – Bank of America, Citigroup and Wells Fargo — three of the biggest banks in the United States — said they could face fines from a regulatory probe into the industry’s foreclosure practices.

The statements, made in regulatory filings on Friday, are the most direct admission yet from major banks that they could have to pay significant amounts of money to settle probes and lawsuits alleging that they improperly foreclosed on homes.

Bank of America Corp (BAC.N), the largest U.S. bank by assets, said the probe could lead to “material fines” and “significant” legal expenses in 2011.

Wells Fargo & Co (WFC.N), the largest U.S. mortgage lender, said it is likely to face fines or sanctions, such as a foreclosure moratorium or suspension, imposed by federal or state regulators. It said some government agency enforcement action was likely and could include civil money penalties.

Citigroup Inc (C.N) said it could pay fines or set up principal reduction programs.

The biggest U.S. mortgage lenders are being investigated by 50 state attorneys general and U.S. regulators for foreclosing on homes without having proper paperwork in place or without having properly reviewed paperwork before signing it.

The bad documentation threatens to slow down the foreclosure process and invalidate some repossessions.

Continue reading … REUTERS

By: David Dayen Wednesday February 9, 2011 8:45 am

I attended a Huffington Post Mortgage Madness Meetup in Los Angeles last night, which suffered from some late planning, the buggy nature of the Meetup tool and the general difficulty of self-organizing. Only a half-dozen people showed, and most of them were either media (a guy from NPR’s Marketplace) or interested observers in the foreclosure mess. In fact, the one homeowner with a story to tell arrived late and almost didn’t make it because he went to the wrong location initially. But oh, what a story he had to tell. And while I’ve heard a lot of these HAMP horror stories in the past year, I’ve never heard anything like this.

Jeremy Fletcher is a swimming pool builder from Northridge, California. His business jumped along with the inflation of the housing bubble, as people bought new homes and made improvements. He made enough money in those years to purchase a $900,000 home for him, his wife and two kids in late 2007. “Ironically, the reason I was doing so well ended up tied to the same thing that got me in this mess,” Fletcher, a surfer and former musician who lived with the Lovin’ Spoonful growing up, told the group.

As the bubble popped, his business tanked. He went from $250,000 in sales in 2007 to $40,000 in 2008. By early 2009, “I was totally broke,” paying for his $4,200 mortgage out of savings and barely hanging on.

He called his servicer, Citi Mortgage, early in 2009, when HAMP was announced, to see if he could get help. “I thought I was being responsible, looking forward before I got into trouble,” he said. The servicer didn’t see it that way. Citi told him they wouldn’t help because he hadn’t missed a payment and showed no sign of default.

In re: JOSE D CRUZ, Chapter 13, Debtor.
JOSE D CRUZ, Plaintiff,
v.
HACIENDA ASSOCIATES, LLC and WELLS FARGO BANK, N.A., Defendants.

Case No. 10-43793-MSH, Adv. Pro. No. 11-04006.

United States Bankruptcy Court, D. Massachusetts, Central Division.

January 26, 2011.

MEMORANDUM OF DECISION ON PLAINTIFF’S EMERGENCY MOTION FOR PRELIMINARY INJUNCTION

MELVIN S. HOFFMAN, Bankruptcy Judge

Before me is the emergency motion of the plaintiff, Jose D. Cruz, for a preliminary injunction barring defendant Wells Fargo Bank, N.A. from foreclosing its mortgage on the plaintiff’s residence at 73 Bolton Street, Marlborough, Massachusetts. After a preliminary hearing on the motion on January 18, 2011, I entered a temporary restraining order enjoining the foreclosure sale, which had been scheduled for that day, but permitted Wells Fargo to postpone the sale by public proclamation to a date after January 25, 2011. On January 25th, I held an evidentiary hearing on the motion. After reviewing the complaint and the evidence submitted by the parties, and for the reasons stated below, I will grant the plaintiff’s motion and enter a preliminary injunction subject to certain conditions.

In accordance with Fed. R. Civ. P. 65, made applicable to this proceeding by Fed. R. Bankr. P. 7065, my decision whether or not to grant a preliminary injunction must be based on the evidence before me, including the verified complaint and affidavits submitted by the parties. I consider the plaintiff’s complaint to be a verified complaint because the plaintiff filed an affidavit dated January 13, 2011 in which he verified the facts alleged in the complaint. The plaintiff also filed the affidavit of Joseph Molina of GIM Services, Inc., who averred that his office submitted a loan modification application to Wells Fargo on behalf of the plaintiff on November 29, 2011. According to Mr. Molina’s affidavit, after several inquiries regarding the status of the loan modification application, his office was informed by telephone on January 19, 2011 (after the complaint had been filed) that the plaintiff’s loan modification application had been denied, and that the reason given for the denial was the approaching foreclosure sale. Mr. Molina also averred that Wells Fargo has not yet communicated this denial to the plaintiff in writing. Lastly, the plaintiff submitted the affidavit of his attorney, Michael Shepsis, who averred that he had contacted Wells Fargo’s foreclosure counsel on several occasions regarding the status of the loan modification and as of January 18, 2011, he had not received any notice that the application had been denied.

In order to obtain a preliminary injunction, the requesting party must demonstrate that (i) there is a likelihood of success on the merits of his claim; (ii) that he will suffer irreparable harm if the injunction is not granted; (iii) that the harm to the requesting party if the injunction is not granted is greater than the harm to the opposing party if it is granted; and (iv) that the public interest would not be adversely affected by the issuance of the injunction. See Sunshine Development, Inc. v. F.D.I.C., 33 F.3d 106, 110-11 (1st Cir. 1994).

On the issue of irreparable harm, the plaintiff seeks in Counts I (breach of contract) and V of his complaint (breach of duty of good faith and reasonable diligence) judgment canceling the pending foreclosure sale of his home. Accordingly, I find that absent an injunction the plaintiff will be irreparably harmed because a foreclosure sale will effectively deprive him of the relief requested in those counts of his complaint.

The question of whether the plaintiff is likely to succeed on the merits of his complaint is really the critical factor to be determined here. See Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991). The plaintiff argues that Wells Fargo, which is a participant in the federal government’s Home Affordable Modification Program (“HAMP”), breached its obligation under the program by scheduling a foreclosure sale of the plaintiff’s property while the plaintiff’s application for a loan modification was under consideration by it. HAMP arose out of the Emergency Economic Stabilization Act of 2008, and is administered by the Federal National Mortgage Association (“Fannie Mae”) as the agent of the Department of the Treasury. Speleos v. BAC Home Loans Servicing, L.P., 2010 WL 5174510, *1 (D. Mass. 2010). The program requires that all mortgage loans owned or guaranteed by Fannie Mae or the Federal Home Loan Mortgage Corporation (“Freddie Mac” and together with Fannie Mae, the government-sponsored agencies or “GSEs”) that meet certain requirements be evaluated by the loan servicers for loan modifications. If a borrower qualifies, then the servicer is obligated to modify the loan in accordance with a predefined formula that reduces the borrower’s monthly payment to 31% of his gross income for the first five years.[1] In addition, many servicers of mortgage loans not owned by the GSEs have executed so-called Servicer Participation Agreements (“SPAs”) with Fannie Mae, as agent for the Treasury Department, by which they agree to review and modify loans on similar terms. The Treasury Department, through Fannie Mae, has established guidelines that servicers must follow in evaluating and approving loan modification requests by borrowers. These guidelines are binding on each servicer by way of its servicing agreements with the GSEs or the SPA to which it was a party. I take judicial notice of the fact that Wells Fargo has executed an SPA, and is thus obligated to follow the HAMP requirements with respect to evaluating a loan modification application.[2]

The plaintiff points to Supplemental Directive 09-01, the first of the Treasury Department’s HAMP guidelines, to support his allegation that servicers such as Wells Fargo are prohibited from foreclosing on mortgages that are under review for loan modification. This directive also requires servicers to seek alternatives to foreclosure in the event that a loan modification is denied.[3] The plaintiff alleges that Wells Fargo scheduled the foreclosure sale of his property while his loan was being reviewed for a HAMP modification, and that this alleged violation of the HAMP guidelines constituted a breach of contract and of Wells Fargo’s duty to act in good faith and with reasonable diligence, justifying, among other things, cancellation of the foreclosure.

The plaintiff’s breach of contract claim in Count I of the complaint is premised on the proposition that he is a third party beneficiary of the Wells Fargo’s SPA or its servicing agreements with the GSEs. While the HAMP program was intended to benefit homeowners by helping them avoid foreclosure, the majority of courts considering the issue have held that consumers have no private cause of action as third party beneficiaries to enforce HAMP violations by their servicers. See McKensi v. Bank of Am., N.A., 2010 WL 3781841, *5-6 (D. Mass. 2010) (“the existing case law weighs decisively in favor of defendant: numerous district courts have interpreted identical HAMP agreements and have come to the conclusion that a borrower is not a third party beneficiary.”) (quoting Hoffman v. Bank of Am., N.A., 2010 WL 2635773 (N.D. Cal.) and citing additional cases); but see Reyes v. Saxon Mortgage Services, Inc., 2009 WL 3738177, *2 (S.D. Cal.) (plaintiff’s complaint alleging a third party beneficiary status with respect to a HAMP violation was “sufficient to state a plausible claim for breach of contract under a third party beneficiary theory”). Very recently, Judge Gorton of the U.S. District Court in Massachusetts cited the proposition in Restatement (Second) of Contracts § 311(b) that one must look to a contract itself to determine whether the parties intended to give rights to third party beneficiaries. Speleos, 2010 WL 5174510 at *5. He held that although the various SPAs and servicing agreements related to HAMP serve to benefit borrowers, nothing in the contracts themselves indicate an intent to create a private right of action in favor of borrowers. I agree with the majority view that the plaintiff is not a third party beneficiary of Wells Fargo’s SPA or other relevant HAMP servicing agreements and, therefore, I find that the plaintiff is not likely to succeed on Count I of the complaint.

In Count V of his complaint, the plaintiff alleges that Wells Fargo breached its duty to act in good faith and with reasonable diligence by attempting to foreclose its mortgage on the plaintiff’s property. Massachusetts courts have consistently held that in addition to complying with the statutory requirements governing mortgage foreclosure set forth in Mass. Gen. Laws ch. 244, a mortgagee must act in good faith and must use reasonable diligence to protect the interests of the mortgagor. Williams v. Resolution GGF OY, 417 Mass. 377, 382-83 (1994). In Snowden v. Chase Manhattan Mortgage Corp., 2003 WL 22519518 (Mass. Super.), the court held that a lender breached this duty by foreclosing a mortgage the day after receiving notice that the borrower had negotiated an agreement to sell the property at a price beneficial to the lender. The court noted that mortgagees in Massachusetts must act as a “trustee for the benefit of all persons interested.” Id. at *2 (quoting Taylor v. Weingartner, 233 Mass. 243, 247 (1916)).

The plaintiff argues that by scheduling a foreclosure sale while the plaintiff’s loan modification request was pending, Wells Fargo breached its duty to act in good faith and with reasonable diligence to protect the plaintiff’s interests. The plaintiff’s argument finds support in Speleos, which concluded that even though the borrowers had failed to state a claim for relief under third party beneficiary theory, they could state a claim for negligence on the theory that the defendants had a duty under the HAMP guidelines not to proceed with a foreclosure sale while evaluating the borrowers for a loan modification. Speleos, 2010 WL 5174510 at *6. The plaintiff’s allegation in Count V of the complaint that Wells Fargo breached its duty of good faith and reasonable diligence is comparable to the negligence claim in Speleos.

The evidence thus far indicates that Wells Fargo scheduled and intended to conduct a foreclosure sale of the plaintiff’s property while the plaintiff’s request for a loan modification was pending before it. Even if the modification was denied on January 19, 2011, eight days prior to the rescheduled foreclosure sale, the plaintiff was not given written notice of the denial nor was he offered other foreclosure mitigation options as required under HAMP guidelines. I find, therefore, that there is a substantial likelihood that the plaintiff will prevail on Count V of his complaint.

In addition, I find that the plaintiff has satisfied the remaining requirements for injunctive relief. While it is possible that the value of the plaintiff’s property may depreciate as this case proceeds (although Wells Fargo offered no evidence on this point), I find that any potential detriment to Wells Fargo from depreciation is outweighed by the enormity of the harm to the plaintiff from a foreclosure sale. Further, my order that the plaintiff make payments to the Chapter 13 trustee will protect Wells Fargo from depreciation and unpaid real estate taxes in the event it ultimately prevails in this action. Finally, I find that it is in the public interest to ensure that lenders foreclose on properties only when they are entitled to do so. Also, the neighbors surrounding the plaintiff’s property will likely benefit if foreclosure can be avoided.

Under Fed. R. Bankr. P. 7065 the court may require a party who benefits from a preliminary injunction to post security to protect the enjoined party in the event that the injunction turns out to have been wrongly issued. Here, the plaintiff’s first and second amended Chapter 13 plans filed in the main case, dated September 24 and October 11, 2010 respectively, each contained provisions in which the plaintiff agreed to make monthly payments to Wells Fargo while his loan modification application was under review. At the evidentiary hearing on the plaintiff’s motion, the plaintiff’s counsel conceded that these payments have not been made to date. The Chapter 13 trustee noted that the plaintiff’s amended Schedule J accompanying his bankruptcy petition lists a total of $1800 in expenses to be dedicated to home mortgage and real estate tax payments. In his memorandum of law in support of his motion for injunctive relief, the plaintiff indicates that his current monthly income is $5829, plus $1,200 in rental income from a tenant. Based on these amounts, a hypothetical HAMP loan modification would involve an initial monthly payment of $1806.99, equal to 31% of total income, after subtracting 25% of the rental income to account for vacancy risk. Accordingly, the preliminary injunction will be conditioned on the plaintiff’s making monthly payments of $1800 to the Chapter 13 trustee. This payment requirement shall be retroactive to October 1, 2010 (the first month after the plaintiff proposed to make these payments in his September 24, 2010 amended Chapter 13 plan). Payments shall be held by the trustee for the benefit of Wells Fargo and paid to Wells Fargo in the event it prevails in this action.

The plaintiff shall make payments of $1800 per month to the Chapter 13 trustee on the first day of each month beginning on February 1, 2011, with a ten day grace period for late payment. In order to catch up on payments due for October through January, the plaintiff shall make a double payment of $3600 on the first day of March, April, May and June. The failure of the plaintiff to make any payment when due will be grounds for vacating the injunction.

A separate order shall enter.

[1] See, e.g., Making Home Affordable Program Handbook for Servicers of Non-GSE Mortgages, Version 3.0 (hereinafter “HAMP Handbook”) at 65, available at https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/mhahandbook_30.pdf.

[2] See Wells Fargo Servicer Participation Agreement, available at http://www.treasury.gov/initiatives/financial-stability/housing-programs/mha/Documents_Contracts_Agreements/093010wellsfargobanknaSPA(incltransmittal)-r.pdf; see also HAMP Handbook, supra note 1 at 17 (explaining the role of the SPA).

[3] Each of the GSEs has its own version of this directive, but all contain the prohibition against foreclosure while loans are under review for modification.

Opinion Below…

[ipaper docId=48280277 access_key=key-qb2mjnigqj544ury1k5 height=600 width=600 /]

By ABIGAIL FIELD Posted 6:30 AM 01/20/11

As the foreclosure crisis has escalated over the past several months, one overarching debate has been about who bears the most blame: homeowners or banks?

After everything I’ve learned and written about the foreclosure mess, my verdict is: The banks are responsible for 90% of the problem, troubled homeowners 10%.

Yes, every foreclosure involves a homeowner not paying his mortgage. But every foreclosure also involves a bank that made the loan. And usually another bank, or several more, that profited from securitizing the loan. And still another bank, or several, that profited from servicing the loan. Together, those banks have done three things that created the massive glut of foreclosures choking America’s legal systems and laying waste to its real estate markets:

• They knowingly made millions of loans doomed for foreclosure as soon as the check was written.
• They deliberately and/or incompetently failed to modify many salvageable mortgages.
• They were so careless with their paperwork and processes that they’ve undermined the rule of law, clouded the title to untold numbers of properties and complicated the processing of the massive backlog of foreclosures that hurts the economically crucial real estate market.

Let’s take a closer look at each factor.

Excerpt:

COMMITTEE MEMBER: Can you explain what you are in
4 relation to that?
5 MR. HULTMAN: We’re the beneficiary, but we’re an
6 agent of the lender. So instead of having two — one party be
7 both the payee on the note and the beneficiary in deed of
8 trust, we’re the beneficiary as their agent. In other words,
9 we’re holding title to the mortgage lien on their behalf.
10 COMMITTEE MEMBER: Through this process called
11 nominee?
12 MR. HULTMAN: Well, nominee is just another word for
13 agent.

Continue below…

After you read the transcript, you might be interested in reading the post below

Lender can’t modify the mortgage without the “mortgagee’s” consent

[ipaper docId=47186388 access_key=key-dtq9qgi10yhubp35jev height=600 width=600 /]

By Michael Kraus on January 18, 2011

Right now Virginia has one of the fastest foreclosure processes in the country.  As detailed in this Washington Post article by David Hilzenrath, there are several bills currently debated in the Virginia legislature that would slow the process and cause big changes in the way foreclosures are handled in that state.

The first proposed change would require judicial approval before a lender can seize a home.  This would serve to ensure the veracity of the documentation that is required in the foreclosure process. Flawed documentation has proven to be an issue in foreclosures across the country time and time again.

The next piece of legislation would force banks to give borrowers longer advance notice before they are able to auction a home.  Under the changes, homeowners would have 30-45 days warning that their home was to be sold rather than the two weeks that is currently required.

The last proposed bill is particularly interesting, because it would cause seismic shifts in mortgage lending in Virginia.  The law would require lenders to keep records on real estate transactions in local records offices (which is the way real estate transfers were done for hundreds of years).  This would make it harder, although not impossible, to securitize Virginia mortgages.  It would, however, effectively doom the Mortgage Electronic Registration Systems (MERS) in the State of Virginia.

“Not only do banks and mortgage lenders oppose the bill, a Reston-based corporation known as MERS (Mortgage Electronic Registration Systems) is battling it.”

Va. bills slow foreclosures

Updated: Monday, 17 Jan 2011, 7:59 PM EST
Published : Monday, 17 Jan 2011, 7:59 PM EST

• BOB LEWIS, AP Political Writer

RICHMOND, Va. (AP) – Virginia House and Senate bills are taking aim at “drive-by foreclosures” by big banks without judicial review and aggravated by incomplete records.

Witnesses at a hearing on some of the legislation Monday told chilling, tearful tales of giant banks foreclosing on their homes, then had to deal with conflicting statements by an unconcerned bureaucracy when they tried to contact their lenders and reason with them.

The legislation is in the works because of the flood of foreclosures that resulted from the 2008 mortgage lending industry collapse.

The bills would slow the state’s swift foreclosure pace. They would increase the time for required foreclosure notice from two weeks to 30 or 45 days. That would give borrowers time to locate records and hire attorneys to challenge foreclosures if necessary.

Link to bills introduced to the 2011 Virginia legislative session –

keyword search: Foreclosure; Deed of Trust; Assignment –

http://lis.virginia.gov/cgi-bin/legp604.exe?111+men+SRB

Who are my Virginia legislators, and how to contact them:

http://legis.virginia.gov/1_cit_guide/contacting_my.html

JAMES KEITH HOOTEN, et al. GERRY RENEE HOOTEN, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

Cause No. 1:09cv491-LG-RHW.

United States District Court, S.D. Mississippi, Southern Division.

January 11, 2011.

MEMORANDUM OPINION AND ORDER DENYING SUMMARY JUDGMENT

LOUIS GUIROLA Jr., District Judge.

BEFORE THE COURT is Defendant Ocwen Loan Servicing, LLC’s Motion for Summary Judgment [30]. Plaintiffs James Keith and Gerry Renee Hooten initiated this action against their mortgage holder after their home was lost in a tax sale. Ocwen argues (1) it owed no contractual duty to pay the past due taxes, (2) the Statute of Frauds bars any oral modifications, (3) the Hootens released Ocwen from all claims, (4) and the taxes were not escrowed. The Court has considered the parties’ submissions^[1] and the relevant legal authority. The motion is denied.

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PACHECO v. EMC Mortgage Corp & The Bear Stearns Companies LLC [Read Complaint Below]

SEATTLE, January 10, 2011 (GlobeNewswire) – Attorney Advertising. Keller Rohrback L.L.P. (www.krclassaction.com) announces that a class action has been filed in the United States District Court for the Eastern District of Washington on behalf of all mortgagors in the State of Washington whose home mortgage loans are serviced by EMC Mortgage Corporation and who (a) have attempted to obtain modifications of their loan terms from EMC; and (b) have made payments pursuant to a “Repayment Agreement,” a Home Affordable Modification Program (“HAMP”) trial modification plan, or any other temporary modification plan.

The complaint alleges, among other things that the Defendants: engaged in bad faith as to home mortgage loan modification negotiations; led mortgagors to reasonably believe and rely on Defendants’ representations that they would permanently modify their mortgage loans upon successful completion of “Repayment Agreements” or other trial programs; charged unreasonable, unlawful, or excessive fees; failed to properly disclose and/or concealed fees and other charges; failed to provide to mortgagors a proper or comprehensible accounting of fees, payments, credits, arrearages, and amounts owed; improperly or under-applied mortgage payments to accounts; and breached “Repayment Agreements” or other trial modification program contracts or promises. The complaint has been filed pursuant to the Washington Consumer Protection Act and contains additional claims for breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, and unjust enrichment.

Keller Rohrback is also investigating the following mortgage loan servicers regarding mortgage loan modifications in Washington and elsewhere:

• American Home Mortgage Servicing, Inc.
• Aurora Loan Services, LLC
• Citimortgage, Inc.
• GMAC Mortgage, Inc.
• JPMorgan Chase Bank NA
• Litton Loan Servicing LP
• Nationstar Mortgage LLC
• OneWest Bank
• SunTrust Mortgage, Inc.

If your home mortgage loan is serviced by EMC Mortgage Corporation or any of the above-listed servicers and you have questions regarding these matters, please contact paralegal Nick Wallace or attorneys Gretchen Obrist or Lynn Sarko at 800.776.6044 or via email at info@kellerrohrback.com.

For additional information regarding the litigation, please click here.

Keller Rohrback, with offices in Seattle, Phoenix, Santa Barbara and New York, is committed to helping individuals protect their investments. Keller Rohrback has successfully provided class action representation for over a decade. Its litigators have obtained judgments and settlements on behalf of clients in excess of seven billion dollars.

Attorney Advertising. Prior Results Do Not Guarantee A Similar Outcome.

CONTACT:
Keller Rohrback L.L.P.
Nick Wallace, Paralegal
(800) 776-6044
info@kellerrohrback.com
www.krclassaction.com

Source: Keller Rohrback L.L.P. Keller Rohrback L.L.P. Announces Class Action Complaint Filed Against EMC Mortgage Corp. and The Bear Stearns Companies LLC

Continue Reading the complaint below…

[ipaper docId=46697577 access_key=key-cajykmncq1r8dzaqnut height=600 width=600 /]

Via: Mandelman Matters

I have to tell you… I’ve been waiting for this to happen.

Ohio Judge Peter Sikora was looking to take advantage of the lowest mortgage interest rates in decades and refinance his eight-bedroom, lakefront Cleveland home, so he contacted his bank, JPMorgan Chase.  With property values in decline in Cleveland, Chase said no to refinancing but told the judge to apply for a loan modification instead.  The judge followed JPMorgan Chase’s advice to the letter and as a result has fallen a year behind on his nearly $1 million mortgage… hasn’t paid his property taxes… and now has ended up in foreclosure.

So, all I can think of to say is… don’t you just hate these irresponsible sub-prime borrowers who should never have been allowed to buy their homes in the first place and now think they’re entitled to loan modifications?  I know I sure do.  Maybe if the judge had called a scammer and paid an up front fee… he would have gotten his loan modified… no, wait… that’s not right… maybe if he had called a lawyer he would have… wait, no… he is a lawyer, right.  Well, maybe if he… oh wait, I know… MAYBE IF HE HAD NOT BELIEVED THE LIES TOLD BY JPMORGAN CHASE… yeah, that’s sure as shootin’ where he went wrong.

According to a story in the Cleveland Plain Dealer, that I’m betting mysteriously isn’t going to get a lot of national attention…

“The bank advised me that the only way they would consider a loan modification would be if I fell behind on my payments,” said Sikora, 59, a judge since 1989. “I took their advice and put the money aside.”

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

GUSTAVO REYES, ET AL., Plaintiffs,

v.

WELLS FARGO BANK, N.A., Defendant

[…]

IV. CONCLUSION

For the reasons stated above, Defendant’s Motion is GRANTED in part and DENIED in part
as follows: 1) the Motion is GRANTED as to Plaintiffs’ claim for breach of contract/breach of the
implied covenant of good faith and fair dealing, which is dismissed for failure to state a claim.
Because the Court concludes that Plaintiffs cannot state a claim by amending their complaint, this
claim is dismissed without leave to amend; 2) the Motion is GRANTED as to Plaintiffs’ claim for
restitution/rescission except as to Plaintiffs’ March payment, as to which Plaintiffs state a claim.
Otherwise, the claim is dismissed without leave to amend; 3) the Motion is DENIED as to Plaintiffs’
claim under the Rosenthal Act; and 4) the Motion is DENIED as to Plaintiffs’ unfair competition
claim under Cal. Bus. & Prof. Code §§ 17200 et seq.

IT IS SO ORDERED.

Dated: January 3, 2011

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Wednesday, December 1, 2010
09:30 AM – 01:00 PM
538 Dirksen Senate Office Building

The witnesses for Panel I will be: Ms. Phyllis Caldwell, Chief, Homeownership Preservation Office, United States Department of the Treasury; The Honorable Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation; The Honorable Daniel K. Tarullo, Governor, Board of Governors of the Federal Reserve System; Mr. John Walsh, Acting Comptroller of the Currency, Office of the Comptroller of the Currency; and Mr. Edward DeMarco, Acting Director, Federal Housing Finance Agency. The witnesses for Panel II will be: Mr. Terry Edwards, Executive Vice President, Credit Portfolio Management, Fannie Mae; Mr. Donald Bisenius, Executive Vice President, Freddie Mac; Mr. Tom Deutsch, Executive Director, American Securitization Forum; and Professor Kurt Eggert, Professor of Law, Chapman University School of Law.

Individuals with disabilities who require an auxiliary aid or service, including closed captioning service for webcast hearings, should contact the committee clerk at 202-224-7391 at least three business days in advance of the hearing date.

Add To My Calendar (vCal)

Witnesses

Panel 1

• Ms. Phyllis Caldwell
  Chief, Homeownership Preservation Office
  United States Department of the Treasury
• Honorable Sheila Bair
  Chairman
  Federal Deposit Insurance Corporation
• Honorable Daniel K. Tarullo
  Governor
  Board of Governors of the Federal Reserve System
• Mr. John Walsh
  Acting Comptroller of the Currency
  Office of the Comptroller of the Currency
• Mr. Edward J. DeMarco
  Acting Director
  Federal Housing Finance Agency

Panel 2

• Mr. Terry Edwards
  Executive Vice President
  Credit Portfolio Management, Fannie Mae
• Mr. Donald Bisenius
  Executive Vice President
  Freddie Mac
• Mr. Tom Deutsch
  Executive Director
  American Securitization Forum
• Mr. Kurt Eggert
  Professor of Law
  Chapman University School of Law

COUNT I:

BREACH OF CONTRACT / BREACH OF DUTY OF GOOD FAITH
AND FAIR DEALING

COUNT II:

PROMISSORY ESTOPPEL, IN THE ALTERNATIVE

COUNT III:

VIOLATION OF CONSUMER PROTECTION ACT,
RCW 19.86.010 ET SEQ

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Janet Tavakoli, Tavakoli Structured Finance, and I discuss bank and foreclosure fraud via Goldman Sachs, JP Morgan, Countrywide, Bank of America, Citigroup etc. in the video commentary below.

Janet Tavakoli, Tavakoli Structured Finance, and I discuss bank and foreclosure fraud via Goldman Sachs, JP Morgan, Countrywide, Bank of America, Citigroup etc. in the video commentary above.

WHO IS TALKING ABOUT WHAT MATTERS?

Aren’t job losses and foreclosures as important as a “Ground Zero Mosque” (that has not been built, isn’t a mosque or even at ground zero?)

By Danny Schechter, Author of The Crime Of Our Time

We know we live in hard times that are on the verge of getting harder with 500,000 new claims for unemployment last week, a recent record. The stock market may be over for now as fear and panic drives small investors out. Big corporations hoard stashes of cash rather then hire workers.

Foreclosures are up, and the Administration’s programs to stop them are down, well below their stated goals, only helping 1/6th of those promised assistance.

And here’s a statistic for you: 300,000. That’s the number of foreclosure filings every month for the past 17 months. This year, 1.9 million homes will be lost, down from 2 million last year. Is that progress? In July alone, 92, 858 homes were repossessed.

At the same time, the number of cancelled mortgage modifications exceeded the number of successful ones. According to Ml-implode.com, last month, “the number of trial modification cancellations surged to 616,839, greatly outnumbering the 421,804 active permanent modifications.”

The Treasury Department admits its HAMP program did not meet expectations but justifies it on the grounds that it gave homeowners lower payments—thatr is, until they were tossed out of their homes. Critics call this “extend and pretend.”

And don’t think this is only a problem that affects the homeowners about to go homeless. The New York Times quotes Michael Feder, the chief executive of the real estate data firm Radar Logic to the effect that we are all at risk.

“My concern is that if we have another protracted housing dip, it’s going to bring the economy down,” Mr. Feder said. “If consumers don’t think their houses are worth what they were six months ago, they’re not going to go out and spend money. I’m concerned this problem isn’t being addressed.”

The larger point is that even if you believe the economy is already down, it can go lower. No one knows how to “fix it” either just as BP couldn’t plug the “leak” that, truth be told, is still oozing oil, and is 650 feet in scope.

So what are we doing about it? Are we demanding debt relief or a moratorium on foreclosures? Are we shutting down the foreclosure factories

Continue Reading…NewsDissector

By ALAN ZIBEL (AP) –

WASHINGTON — The number of people dropping out of the Obama administration’s program main program to help those at risk of losing their homes outstripped those who received aid for the second-straight month.

The Treasury Department says about 530,000 borrowers have dropped out of the program as of last month. That’s more than 40 percent of the nearly 1.3 million enrolled since March 2009. It’s a sign that foreclosures could rise and weaken an ailing housing market.

Treasury officials say few of these borrowers will wind up in foreclosure. But many analysts still fear a new wave of foreclosures will weaken the housing market.

Another 390,000 homeowners, or 30 percent of those who started the program, have received permanent loan modifications and are making payments on time.

Copyright © 2010 The Associated Press. All rights reserved.

Lets not act surprise…by now we all know ANYTHING the US GOVERNMENT touches turns to ___________!

Because these lying banksters get away with ________________! We should foreclose on their _____________and kick them to the curb! Get your stress out and fill in the blank!

WE are not fools and we do not believe one thing they say!

Shahien Nasiripour

Potentially “thousands” of troubled homeowners were denied opportunities to lower their monthly mortgage payments under the Obama administration’s signature foreclosure-prevention plan due to servicer errors and inadequate oversight by the Treasury Department, a government audit has found.

Mortgage servicers failed to comply with basic guidelines, used different criteria to evaluate borrowers, recorded error rates up to six times their established thresholds, and couldn’t provide evidence that potentially eligible homeowners had been solicited for the administration’s Home Affordable Modification Program, also known as HAMP.

The errors are partly due to Treasury’s failure to issue specific guidelines for servicers to follow, and the administration’s lack of quality-control standards. Because servicers aren’t required to adhere to the same set of standards, there’s a risk that firms aren’t identifying practices “that may lead to inequitable treatment of borrowers or harm taxpayers through greater potential for fraud or waste,” according to a Thursday report by the Government Accountability Office.

But even if servicers were fraudulently modifying loans or improperly denying modifications to distressed homeowners, Treasury “has yet to establish specific consequences or penalties for noncompliance,” the GAO notes. The department has yet to fine any servicers for noncompliance, according to the report.

Already, “Treasury specifically allows some differences in how servicers evaluate borrowers… that could result in inconsistent outcomes for borrowers,” the report found.

The end result could be the “inequitable treatment” of struggling homeowners who were looking to an administration for help during the worst economic downturn since the Great Depression. HAMP is the centerpiece of the administration’s $75 billion effort to stem the rising tide of foreclosures.

“I find it saddening and frustrating that none of these problems, which we among other people identified to Treasury over a year ago, have been meaningfully addressed,” said Diane E. Thompson, a lawyer with the National Consumer Law Center. “And as a result, we lost a major opportunity to stem the foreclosure crisis.”

Continue reading….here