Daily Archives: January 7, 2014

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United States: Ohio Appellate Court Rejects Mortgage Servicing Class Action, Finds Foreclosure Actions Are Not “Consumer Transactions” Under The Consumer Sales Practices Act

United States: Ohio Appellate Court Rejects Mortgage Servicing Class Action, Finds Foreclosure Actions Are Not “Consumer Transactions” Under The Consumer Sales Practices Act

Yesterday, the Eighth District Ohio Court of Appeals affirmed the dismissal of a putative class action raising claims against a noteholder, mortgage servicer, and law firm under Ohio’s Consumer Sales Practices Act (“CSPA”). In Glazer v. Chase Home Finance L.L.C., 2013-Ohio-5589 (Ohio App. 2013), the Eighth District held that servicing defaulted mortgage loans is not a “consumer transaction” subject to the CSPA. The court also reinforced that there is no private right of action to enforce alleged violations of R.C. 1319.12, a statute imposing certain regulations on debt collectors. The court’s ruling limits the exposure of the mortgage servicing industry to class action litigation in Ohio—a substantial win given that Ohio was one of the epicenters of the foreclosure crisis.

The plaintiffs alleged that the defendants violated the CSPA by prosecuting a foreclosure case in which they allegedly wrongfully held Chase (the putative noteholder) out as a noteholder when the note was allegedly still held by Fannie Mae. The plaintiff argued that the CSPA applied because the defendants were “suppliers” under the CSPA, made material misrepresentations in a residential mortgage consumer transaction, and engaged in unfair and deceptive debt collection practices.

The court rejected this argument, relying on the Ohio Supreme Court’s recent decision in Anderson v. Barclay’s Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-Ohio-1933, 989 N.E.2d 997, that residential mortgage servicers are not covered by the CSPA. While the plaintiff attempted to distinguish Anderson, reasoning that Anderson focused on “primary mortgages” rather than mortgages that had gone into default or foreclosure, the Eighth District rejected that distinction because Anderson expressly held the “management of loans in default” was not covered. As a result, the court found the foreclosure-related actions were not “consumer transactions” and dismissed the plaintiff’s CSPA claim for lack of standing. Likewise, for similar reasons, the court also found that mortgage servicers were not “suppliers” subject to CSPA.

JPMorgan Would Prefer You Not See This Shameful Rectangle

Check it out..

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$1.4B Credit Suisse Loan Pool Suits Tossed By Judge

$1.4B Credit Suisse Loan Pool Suits Tossed By Judge

Law360, Los Angeles (January 06, 2014, 8:08 PM ET) — A New York state judge on Monday tossed claims that a Credit Suisse AG affiliate made misrepresentations about mortgage-backed securities that cost investors $1.4 billion, ruling that the suits were filed before Credit Suisse had a chance to repurchase the loans.

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RBS Japanese Unit Sentenced With $50M Fine In Libor Case

RBS Japanese Unit Sentenced With $50M Fine In Libor Case

Law360, New York (January 06, 2014, 8:34 PM ET) — A Connecticut federal judge on Monday formally sentenced the Japanese subsidiary of Royal Bank of Scotland PLC for its role in rigging the London Interbank Offered Rate, or LIBOR, accepting a criminal plea agreement that includes a $50 million fine.

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Prudential, Goldman Settle $375M RMBS Fraud Suit

Prudential, Goldman Settle $375M RMBS Fraud Suit

Law360, Los Angeles (January 06, 2014, 9:24 PM ET) — A New Jersey federal judge on Monday dismissed Prudential Insurance Company of America Inc.’s lawsuit accusing Goldman Sachs & Co. of fraud and racketeering related to the sale of more than $375 million in residential mortgage-backed securities, after the parties reached an undisclosed settlement.

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Wells Fargo, Fannie Mae Dodge Suit Over Reverse Mortgages

Wells Fargo, Fannie Mae Dodge Suit Over Reverse Mortgages

Law360, Chicago (January 06, 2014, 9:38 PM ET) — A California federal judge on Friday tossed a proposed class action accusing Wells Fargo Bank NA and Fannie Mae of wrongly refusing heirs and surviving spouses of reverse mortgage borrowers the opportunity to buy property at its appraised value.

U.S. District Judge Samuel Conti issued an order dismissing the suit brought by the AARP on behalf of Robert Chandler, finding that the deed attached to Chandler’s deceased mother’s reverse mortgage — or “home equity conversion mortgage” — didn’t back his claims.

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INFOGRAPHIC: JP MORGAN PAYS $31.78 BILLION IN FINES AND OTHER LEGAL COSTS SINCE 2009

INFOGRAPHIC: JP MORGAN PAYS $31.78 BILLION IN FINES AND OTHER LEGAL COSTS SINCE 2009

AND there are many many more years to come!

 

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Process servers now exempt from trespassing laws

Process servers now exempt from trespassing laws

Michigan process servers are no longer considered “trespassers” when trying to serve documents.

Public Act 230, passed by the state Legislature and given immediate effect at the end of 2013, amended the Michigan Penal Code so it is no longer a 30-day misdemeanor to enter or remain on the premises of another without lawful authority after having been forbidden to do so or asked to leave by the owner, occupant, or their agents. 

PA 230 specifies that the trespassing prohibition and penalties do not apply to a process server who is on the land or premises of another while attempting to serve process.

Under the new law, the attempt at service of process must be made by “the most direct” route, as opposed to hiding in a barn or going the long way around a person’s property. And the term “process server” is defined as a person authorized under the Revised Judicature Act or Michigan Court Rules to serve process.

ROBO-ZOMBIES ATTACK! FULL DEPOSITION OF VICTORIA SCOTT: SHAM VERIFICATION OF A FORECLOSURE COMPLAINT

The deposition of Victoria Scott took place on November 20, 2013, during which time Evan questioned Ms. Scott about her knowledge of the truth and correctness of the facts in the Complaint, which she allegedly verified. During the deposition, Ms. Scott could not verify the facts alleged in paragraphs 2, 5, 6, 8, 10, 11 and 14, as well as in the “wherefore” clause of the Complaint, despite the fact that she signed the verification under penalty of perjury. In many instances, Ms. Scott just simply did not know if a fact was true and correct. She also did not know or understand very basic concepts of a mortgage and mortgage foreclosure that anyone verifying complaints, properly, would have to know and understand.

According to the admission of the Plaintiff’s deponent, the verification found in the Complaint is a sham and should be stricken pursuant to FLA. R. CIV. P. 1.150.

FLA. R. CIV. P. 1.150 states:

 Rule 1.150. Sham Pleadings

(a) Motion to Strike. If a party deems any pleading or part thereof filed by another party to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken. Default and summary judgment on the merits may be entered in the discretion of the court or the court may permit additional pleadings to be filed for good cause shown. (Emphasis added).

Florida courts have clearly equated the word “sham” with “false” and held that a pleading is considered a sham “when it is inherently false and based on plain or conceded facts, clearly known to be false at the time the pleading was made.” Upon reading Ms. Scott’s testimony, there can be no doubt that the verification in the Complaint meets the definition of a sham pleading and should be stricken. In the instant case, given the deposition of Victoria Scott, the Plaintiff was given notice of the sham verification and of its failure to state a cause of action. However, Plaintiff has failed to take steps to cure the sham verification and/or amend its Complaint.

Some excerpts from our MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE VERIFICATION OF THE VERIFIED FIRST AMENDED COMPLAINT TO FORECLOSE MORTGAGE AS A SHAM

The Complaint and Ms. Scott’s testimony are as follows respectively.

Paragraph 2 of Complaint: “On November 30, 2006, there was executed and delivered a Promissory Note(‘Note’) and a Mortgage (‘Mortgage’) securing payment of the Note to the payee named thereon. The Mortgage was recorded in Official Records Book _______, Page ______, of the Public Records of Palm Beach County, Florida, the property then owned by and in possession of the mortgagor(s). True and correct copies of said Note and Mortgage, are attached hereto as Exhibit ‘A’ and Exhibit ‘B’ respectively.”

As to the basis of Ms. Scott’s belief that paragraph 2 of the Complaint was true and correct to the best of her knowledge – as required by FLA. R. CIV. P. 1.11 O(b) – she stated she did not know what securing payment of the note meant:

 Q: What does securing payment of the note mean?

A: I don’t know.

Later in her deposition, Ms. Scott also improperly stated that the “note secures the mortgage.

She further stated that in order to verify that the mortgagor possessed the property she did a title search and she could not recall where on the title search it said who possesses the property.

Q: Okay. How do you know the property was then owned by and in possession by the mortgagor?

A: I reviewed a title search.

Q: And where on the title search does it tell you who’s in possession of a property?

A: I do not recall.

Ms. Scott also stated incorrectly, for the first of three times in her deposition, including once on examination by Plaintiff’s counsel, that the mortgagor was the bank:

Q: Okay. What does – the term “mortgagor”, what does that mean?

A: Mortgagor is the person who the mortgage is for.

Q: Is that the bank or the borrower?

A: That would be the bank.

Paragraph 5 of Complaint: “Plaintiff is entitled to enforce the Note as a holder in possession and toforeclose the Mortgage securing the note.”

At the deposition, Ms. Scott said that she saw on a computer log that someone had noted that the Note and Mortgage were sent to the law firm, but she could not recall when the log note was entered or when she saw the log note.

Q How was the plaintiff entitled to foreclose the mortgage?

A: Can you rephrase that, please?

Q: Sure. How do you know it’s true and correct that the plaintiff is entitled to foreclose the mortgage?

A: Because the note secures the mortgage and CitiMortgage is the holder of the note.

Ms. Scott’s answer indicates that she does not grasp how the mortgages or the mortgage foreclosure process works.

Paragraph 6 of Complaint: “The Mortgage of the Plaintiff is a purchase money mortgage … ”

As indicated by the following excerpt of the deposition, Ms. Scott had trouble indicating what a purchase money mortgage was. She also admitted that she did not verify some of the facts contained in paragraph 6 of the Complaint.

Q: Sure. What is a purchase money mortgage?

A: It’s a mortgage that they’re purchasing.

Q: That who’s purchasing?

A: The mortgagor. That would be ABN Amro.

Q: Are you shaking your head and looking at Mr. Berwin?

A: No.

Q: That’s what I just saw on here.

A: I did not look at Mr. Berwin.

Q: Who’s sitting to your left?

A: Mr. Berwin.

Q: Okay. You understand that you can’t rely on anyone else’s input while you’re under oath in deposition. This is based on your personal knowledge; correct?

A: Yes.

Q: Okay. So a purchase money mortgage is a mortgage that ABN Amro purchased. Is that what you’re saying?

A: No. A purchase money mortgage –

A: It’s a mortgage that is purchased by the person that executed the mortgage.

Q: In this instance, it was purchased by — the person who executed the mortgage was Mr. ________ and Mrs. ________; right?

Q: If you don’t recall, you got to tell me you don’t recall. You can’t look at documents while you’re testifying unless there’s something that can refresh your recollection. So you don’t recall who signed the mortgage?

A: I’m looking at who executed the mortgage.

Q. Okay. Well, again-

A. I do not recall.

Ms. Scott had difficulty articulating what a purchase money mortgage was and who had purchased the purchase money mortgage.

Further, she couldn’t articulate this simple concept even when led by Plaintiff’s counsel:

Q: Do you know what a purchase money mortgage is?

A: It’s a–

MR. ROSEN: Objection. Form.

MR. BERWIN: Can you please let the deponent finish her answer?

Q: (By Mr. Berwin) You can answer if you know.

A: I do not recall.

Q: Do you know if the loan was used to purchase the property?

A: Yes.

Q: Was it used to purchase the property?

A: Yes, because it’s a purchase money mortgage.

Q: Okay. So does that — now you just testified that you know what a purchase money mortgage is. Is that what you’re saying?

A: Yes.

MR. ROSEN: Objection. Form.

Q: (By Mr. Berwin) And what is your understanding of what a purchase money mortgage is?

A: That the loan purchases the mortgage and it is a first lien.

Q: That the loan is used to purchase the property?

A: Yes.

MR. ROSEN: Objection. Form.

Q: (By Mr. Berwin) I’m sorry. I don’t know if that was clear.

A: No.

Q: What is your understanding as to what a purchase money mortgage is?

MR. ROSEN: Objection. Form.

A: A purchase money mortgage is a loan used to purchase the mortgage property — property.

Also, Paragraph 6 of the Complaint states in part: ” … being a lien superior in dignity to any prior or subsequent right, title, claim, lien or interest arising out of mortgagee or the mortgagee’s predecessors in interest.”

Ms. Scott, someone tasked with verifying complaints, also showed her complete lack of knowledge as to liens and the nature of lien priority.

Q: Okay. What does it mean — a lien superior, what does that mean?

Q: (By Mr. Rosen) And, again, just looking at me and not looking at any papers, what does it mean, a lien superior?

A: Am I not allowed to look at the paragraph you’re reading from?

Q: If you — if there’s some reason that will help refresh your recollection as to the answer, then sure, we can take a look at that if you like. Will that help you? First of all, do you not remember what a lien superior is?

A: A lien superior would be the first lien.

Q: Okay. And what is a superior indignity mean?

A: I do not know.

Q: (By Mr. Rosen) What does it mean superior to any prior or subsequent right?

A: I do not know.

Q: (By Mr. Rosen) What does it mean superior in any prior or subsequent title?

A: I do not know.

Q: (By Mr. Rosen) Okay. And what does it mean for claim — and, again, it looks like you’re looking at something again. Just based upon your personal knowledge, what is a lien superior to any prior or — excuse me — to any prior or subsequent claim mean?

A: I do not know.

Q: (By Mr. Rosen) How about do you know what a lien superior in dignity to any prior or subsequent lien means?

A: I don’t know.

Q: (By Mr. Rosen) Okay. And do you know what a lien superior indignity to any prior or subsequent interest arising out of the mortgagee or the mortgagee predecessor in interest? Do you know what that means?

A: That is not a fact that I verified.

Although she signed the verification under penalty of perjury, Ms. Scott admitted that she did not verify this portion of the Complaint.

Paragraph 8 of Complaint: “All conditions precedent to the acceleration of the Note and Mortgageand the filing of the instant foreclosure complaint have been fulfilled.”

 Q: Okay. What is a condition precedent?

A: I don’t know.

Q: (By Mr. Rosen) What is acceleration of the note and mortgage, what does that mean?

A: I do not know.

It is clear from Ms. Scott’s responses that she was incapable of verifying this portion of the Complaint sinceshe did not know what a “condition precedent” was, nor what “acceleration of the note and mortgage” meant.

Paragraph 10 of Complaint: “Plaintiff declares the full amount payable under the Note and Mortgage to be due and payable.

Once again, Ms. Scott’s uncertain answers demonstrate that she did not properly and independently verify the facts in the Complaint.

Q: How do you know the plaintiff — how do you know it’s true and correct that the plaintiff declared the full amount payable under the note and mortgage to be due and payable?

A: I’m sorry. Can you repeat that?

Q: Sure. How do you know that the plaintiff declares the full amount payable under the note and mortgage to be due and payable?

A: Can you rephrase that, please?

Q: Sure. Are you looking down at something?

A: I’m looking at the paragraph that you were reading.

Q: Okay. Let’s take that paragraph away. If you could just hand that back to the court reporter. Based on your personal knowledge, at the time the lawsuit was filed, how do you know it’s true and correct the plaintiff declared the full amount payable under the note and mortgage to be due and payable?

A: I do not know.

Paragraph 11 of Complaint: “The Defendant(s) who may be held personally liable for a deficiency, if any, is the notemaker, …, unless any of such Defendant have been discharged in bankruptcy in which event no deficiency is or will be sought.”

According to her deposition, Ms. Scott did not know what a deficiency was as it related to a foreclosure action. Once again, Ms. Scott demonstrated her lack of knowledge and inability to verify the Complaint:

Q: What is a deficiency?

A: A deficiency is less than something.

Q: (By Mr. Rosen) Okay. As it relates to a foreclosure action, what is a deficiency?

A: Can you repeat that, please?

Q: (By Mr. Rosen) Sure. As it relates to a foreclosure action, what is a deficiency?

A: A deficiency is less than something so it’s a –

Q: (By Mr. Rosen) If you don’t know, it’s perfectly fine to say you don’t know.

A: Can you rephrase your question, please?

Q: Sure. I don’t want you to guess. No one here wants that. Do you know what a deficiency is as it relates to a foreclosure action?

A: A deficiency is an amount due.

Q: (By Mr. Rosen) Okay. Anything else to describe what a deficiency is as it relates to a foreclosure action?

A: I don’t know.

Paragraph 14 of Complaint: “That the Defendant, Cocoplum Property Owners of Palm Beach, Inc., might have some claim or demand in the subject property by virtue of all unpaid assessments, if any, and all other rights, claims, liens, interest, encumbrances and equities, either recorded or unrecorded, if any in the subject real property. The above-described interest of said Defendant(s) in the subject property is inferior to the interest of the Plaintiff in said property. ”

Ms. Scott again had difficulty articulating how she had verified the facts in this paragraph of the Complaint. She further admitted she did not know some of the facts alleged in paragraph 14 of the Complaint:

Q: (By Mr. Rosen) You don’t know. Okay. Who is Cocoplum Property Owners of Palm Beach County or Palm Beach? Excuse me.

A: I don’t know.

Q: Sure. Let’s go ahead and take a look at paragraph 14. Let’s take a look at that last sentence of paragraph 14. That says, “The above described interest of said Defendant(s) in the subject property is inferior to the interest of the Plaintiff in said property.” Is that what that says?

A: Yes.

Q: And how do you know that’s true and correct?

A: I do not know.

WHEREFORE Clause of Complaint: ” .. .including issuance of a writ of possession and the entry of a deficiency … ”

Ms. Scott again made it clear that she did not understand the facts she was verifying:

Q: (By Mr. Rosen) What is a writ of possession?

A: I don ‘t know.

CONCLUSION

It is evident that Ms. Scott has very little knowledge of even the basics of her employer’s business. It seems she might even have been involved in signing affidavits outside the presence of a notary, which is a criminal act, at least for the Notary and possibly for the witness herself.

Q: Anyone next to you while you were signing the affidavit –

A: Not at my desk.

Q: — affidavits? Not at your desk?

A: No.

Q: Okay. When you sign affidavits, those were later notarized; right?

A: Affidavits are notarized.

Q: And when will those get notarized?

A: At the signing meeting that would take place.

Q: So you were signing, no one else was next to you, I’m not understanding how the affidavits are notarized. Can you please explain that?

A: Well, the complaint is not notarized.

Q: Right. And the affidavits I’m referring to. That’s what we’re talking about.

A: But I did not sign any affidavits for this case.

Q: I understand. Generally when you were signing affidavits is what I was referring to. When do those get notarized?

A: At the signing meeting.

Q: Okay. And where was the signing meeting?

A: In a conference room.

Q: Not at your desk?

A: Correct.

Although Ms. Scott claims she received training to verify complaints, she cannot explain basic facts that are alleged in the Complaint nor does she understand very basic terms and concepts used in a mortgage and mortgage foreclosure.

The entire reasoning behind the Florida Supreme court taking unprecedented, historic action to amend rule 1.110(b) was because of the financial industry’s well documented illegal behavior. It was enacted around the time that the “robo signing” scandal had broken wide open. We now know that “robo-signing” is used to describe the process of having a person sign a document without authority to do so and/or knowledge as to that which she is signing, despite swearing otherwise. The “robo-signing” scandal set off a nation-wide foreclosure moratorium and ultimately led to settlements with 49 states, Office of the Comptroller of the Currency consent orders, and numerous class action and shareholder lawsuits. New settlements with Ocwen and LPS were just recently announced. Yet, no matter the amount and severity of lawsuits, settlements, and bad publicity, it appears, at least in this case, that the act of signing without proper authority or knowledge as to that which one is signing, continues.

Full deposition for your enjoyment below…

 

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MERS secures another legal victory in Ark. recording fee case

MERS secures another legal victory in Ark. recording fee case

MERSCORP Holdings, the parent of the electronic mortgage registry known as MERS, just won another legal victory in one of the pending recording fee lawsuits filed against it.

A few years ago, municipalities began filing suits against MERS alleging it had failed to pay required recording fees on mortgage assignments made through the MERS electronic system.

One of those cases – Mayme Brown v. MERS – developed in Arkansas and turned into a class action suit that allegedt Arkansas taxpayers were defrauded by MERS’ actions.