Daily Archives: July 30, 2015

Deutsche Bank Didn’t Archive Chats Used by Some Employees Tied to Libor Probe

WSJ (sub. req.):

A month after reaching a $2.5 billion settlement over interest rate rigging, Deutsche Bank AG told regulators its disclosures may have been incomplete because it accidentally failed to archive electronic chats involving its employees, people familiar with the matter said.

The bank is working to recover the records from its systems but might have permanently lost an unknown number of chats dating back to 2005, the people said.

In Britain, Ex-Rabobank Trader Barred From Industry in Libor Scandal

LONDON — British regulators said on Thursday that they had barred a former trader at the Dutch lender Rabobank from the securities industry after he pleaded guilty in the United States in March in connection with rigging a global benchmark interest rate.

The Financial Conduct Authority of Britain said the former trader, Lee Stewart, 52, had been barred from working in the British financial services industry for lacking “honesty and integrity.” The ban was put in place on July 21, the regulator said.

In March, Mr. Stewart pleaded guilty to conspiracy to commit wire and bank fraud in the United States District Court for the Southern District of New York and acknowledged misconduct related to the bank’s submissions of the London interbank offered rate, or Libor, as it was tied to the dollar. He is set to be sentenced in 2017.

Read on.

House Committee approves slate of mortgage, housing reforms

Bipartisan bills rein in GSE CEO pay, provide formal TRID grace period

The House Financial Services Committee approved a slate of bipartisan bills directly impacting the mortgage and housing finance space Wednesday.

They now face a vote before the full House of Representatives.

“We seek to simplify the rules, reduce complexity and compliance costs.  Complicated and costly regulations serve as barriers that too often keep small competitors off the playing field,” said Chairman Jeb Hensarling, R-Texas. “With regulatory relief, we can level that playing field between big corporations and small businesses and create a healthier economy.”

Among the bills passed were:

H.R. 3192, the “Homebuyers Assistance Act”

H.R. 3192 delays enforcement of a CFPB regulation surrounding the home buying process to allow more time for the CFPB to ensure purchasers and buyers are not unfairly harmed by this new regulation.

H.R. 3192 passed 45-13.

H.R. 1210, the “Portfolio Lending and Mortgage Access Act”

H.R. 1210 would address the onerous requirements of Section 1411 of the Dodd-Frank Act and codifies the common sense understanding that financial institutions who hold mortgages on portfolio have a vested interest in insuring that their customers repay their mortgages. H.R 2673 would provide regulatory relief for community financial institutions and make it easier for Americans to access affordable mortgage credit and put a stop to “QM” standing for “quitting mortgages.”

H.R. 1210 passed 38-18.

Read on.

CFPB to mortgage industry: Get out of MSAs

The Consumer Financial Protection Bureau wants to mortgage lenders to stop using marketing services agreements, and it’s using the stick rather than the rules process to do so.

Two major players in the mortgage space announced this morning that they are discontinuing marketing activities that depend on MSAs because of regulatory uncertainty, recent interpretations of RESPA, and a generally toxic enforcement environment, and that appears to be exactly what the CFPB wants.

Read on.

UBS Deal Shows Clinton’s Complicated Ties

Outlined in today’s Wall Street Journal:

A few weeks after Hillary Clinton was sworn in as secretary of state in early 2009, she was summoned to Geneva by her Swiss counterpart to discuss an urgent matter. The Internal Revenue Service was suing UBS AG to get the identities of Americans with secret accounts.

If the case proceeded, Switzerland’s largest bank would face an impossible choice: Violate Swiss secrecy laws by handing over the names, or refuse and face criminal charges in U.S. federal court.

Within months, Mrs. Clinton announced a tentative legal settlement—an unusual intervention by the top U.S. diplomat. UBS ultimately turned over information on 4,450 accounts, a fraction of the 52,000 sought by the IRS, an outcome that drew criticism from some lawmakers who wanted a more extensive crackdown.

From that point on, UBS’s engagement with the Clinton family’s charitable organization increased. Total donations by UBS to the Clinton Foundation grew from less than $60,000 through 2008 to a cumulative total of about $600,000 by the end of 2014, according the foundation and the bank.

The bank also joined the Clinton Foundation to launch entrepreneurship and inner-city loan programs, through which it lent $32 million. And it paid former president Bill Clinton $1.5 million to participate in a series of question-and-answer sessions with UBS Wealth Management Chief Executive Bob McCann, making UBS his biggest single corporate source of speech income disclosed since he left the White House.

The UBS matter involved her helping solve a problem for a foreign bank—not a popular constituency among Democrats—and stepping into an area where government prosecutors had been taking the lead.


UBS officials deny any connection between the legal case and the foundation donations. “Any insinuation that any of our philanthropic or business initiatives stems from support received from any current or former government official is ludicrous and without merit,” a bank spokeswoman said. UBS said the speeches by Mr. Clinton and the donations were part of a program to respond to the 2008 economic downturn.

UBS’s troubles began in 2007 when an American banker working in Switzerland told the U.S. Justice Department that UBS had recruited thousands of U.S. customers seeking to avoid U.S. taxes. The disclosure led UBS to enter into a deferred-prosecution agreement with the Justice Department in 2009. The bank admitted to helping set up sham companies, creating phony paperwork and deceiving customs officials. It paid a $780 million fine and turned over the names of 250 account holders.

CFPB Takes Action Against Mortgage Company for Blocking Consumers’ Attempts to Save Their Homes

Residential Credit Solutions to Pay $1.5 Million for Servicing Wrongs

WASHINGTON, D.C. – Today the Consumer Financial Protection Bureau (CFPB) took action against Residential Credit Solutions, Inc. for blocking consumers’ attempts to save their homes from foreclosure. The mortgage servicer failed to honor modifications for loans transferred from other servicers, treated consumers as if they were in default when they weren’t, sent consumers escrow statements falsely claiming they were due a refund, and forced consumers to waive their rights in order to get a repayment plan. Residential Credit Solutions has agreed to pay $1.5 million in restitution to victims and a $100,000 civil money penalty for its illegal actions.

“By failing to honor loan modifications already in place, Residential Credit Solutions put consumers through more headaches but in some cases cost consumers their homes,” said CFPB Director Richard Cordray. “Residential Credit Solutions must now compensate its victims $1.5 million as a result of our action.”

Read on.

David Stern v. Bank of America: Third Federal Judge in a Row Declines to Follow Florida Appellate Opinion on Statute of Limitations for Mortgage Foreclosure

Florida’s Third District Court of Appeal shocked many court watchers with its opinion in Deutsche Bank Trust Co. Americas v. Beauvais, No. 3D14-575, 2014 WL 7156961 (Fla. 3d DCA Dec. 17, 2014) when it created a split of authority on Florida’s statute of limitations for mortgage foreclosure.  BeforeBeauvais, Florida’s case law was consistent that a dismissal, be it with or without prejudice, permitted new non-time-barred causes of action for foreclosure to accrue based upon post-dismissal breaches of mortgage covenants. See Evergrene Partners, Inc. v. Citibank, N.A., 143 So. 3d 954, 955 (Fla. Dist. Ct. App. 2014), reh’g denied (Aug. 27, 2014); U.S. Bank Nat. Ass’n v. Bartram, 140 So. 3d 1007, 1013 n. 1 (Fla. 5th DCA 2014) review granted, 160 So. 3d 892 (Fla. 2014). The opinion in Beauvais acknowledged conflict with the Fourth District Court of Appeal, and held that only a dismissal with prejudicepermitted future causes of action for foreclosure to accrue.  Overnight, many foreclosure cases pending in Miami-Dade County’s busy foreclosure courts became time-barred. However, for the third time in a row, the opinion has failed to garner the support of a Florida federal District Court judge forced to pick between the two divergent strains of thought on the issue.

In Stern v. Bank of Am. Corp., No. 2:15-CV-153-FTM-29CM, 2015 WL 3991058 (M.D. Fla. June 30, 2015) United States District Court Judge John Steele became the third consecutive United States District Court Judge in Florida to reject the Third DCA’s ruling in Beauvais, describing Beavais as “contrary to the overwhelming weight of authority  which holds that even where a mortgagee initiates a foreclosure action and invokes its right of acceleration, if the mortgagee’s foreclosure action is unsuccessful for whatever reason, the mortgagee still has the right to file later foreclosure actions . . . so long as they are based on separate defaults.” (internal quotation marks omitted).

Read on.

Dodd-Frank challenged in court! A Win for Community Banking and the American Public

Foreclosure REVERSED! The Mysterious Countrywide Endorsements

Matt Weidner Law website:

The Eagles Master Association v. Bank of America

St. Andrews at the Eagles, Inc., appeals a final judgment of foreclosure in
favor of Bank of America.1 We reverse because the Bank failed to prove its standing.
On October 12, 2009, a residential foreclosure complaint was filed by BAC
Home Loans Servicing, L.P., formerly known as Countrywide Homes Loans Servicing,
L.P. The first count was to foreclose on a mortgage given by Marie Black; the second
count was to reestablish a lost note and mortgage. St. Andrews was named as a
defendant based on allegations that it might claim a subordinate interest or lien in the
property “by virtue of possible association liens and assessments.”
On the copies of the mortgage and note attached to the complaint, the
lender was identified as Countrywide Bank, FSB. Mortgage Electronic Registrations
Systems, Inc., commonly referred to as MERS, was named as the nominee for the
lender and its successors and assigns. There was neither an endorsement on, nor an
allonge attached to, the note.

St. Andrews answered the complaint and pleaded an affirmative defense
asserting that BAC lacked standing to foreclose. In response to St. Andrews’ request to
produce, BAC filed an assignment of the mortgage from MERS to BAC. The
assignment stated that it was signed November 5, 2009, which was almost a month
after the foreclosure complaint was filed, “but effective as of” October 5, 2009, about a
week before the complaint was filed. A stamp indicated that it was recorded in the
Hillsborough County public records on December 16, 2009.
The assignment was prepared by David Stern, whose firm represented
BAC in this case. Stern was ultimately disbarred in 2014. Fla. Bar v. Stern, 133 So. 3d

Even before that happened, BAC retained new attorneys. In February
2012, BAC moved for leave to file an amended complaint. The motion recited BAC’s
hiring of new counsel due to the Bar investigation of Stern; it also reported BAC’s
merger with Bank of America, N.A. The Bank filed an affidavit by its new attorney, who
averred that his firm was in possession of the original note and mortgage. The
amended complaint contained a single count for foreclosure and alleged that Bank of
America “owns and holds” the note and mortgage. In support, the Bank relied on the
same assignment of mortgage that had been prepared by Stern. Additionally, the Bank
relied on a blank endorsement on the note, which did not appear on the copy that BAC
filed with the original complaint. The endorsement was undated but apparently signed,
and it stated:
St. Andrews filed an answer to the amended complaint and again alleged
lack of standing as an affirmative defense. At trial, the Bank presented the testimony of
Philip Houghtby, who was employed by Bank of America as assistant vice president,
mortgage resolution associates. He recounted that he reviewed the Bank’s records
concerning this loan, which included records from Countrywide/BAC that were
incorporated into the Bank’s records after the merger. Houghtby testified that the Bank
was actually in possession of the note when the original complaint was filed, but he did
not know and was unable to say when the note was endorsed.

As indicated, the note was payable to Countrywide Bank, which was not a
party to the foreclosure action. To be a holder entitled to enforce under the facts of this
case, Bank of America was required to show physical possession of the original note
and an endorsement or allonge either in blank or in favor of the plaintiff. See Keifert v.
Nationstar Mortg., LLC, 153 So. 3d 351, 353 (Fla. 1st DCA 2014). The endorsement
must have occurred before the filing of the complaint because it is axiomatic that
standing must be shown as of the filing of the complaint. Focht v. Wells Fargo Bank,
N.A., 124 So. 3d 308, 310 (Fla. 2d DCA 2013). Here, Bank of America failed to show
when the endorsement was added.

Had the note with the blank endorsement been filed with the original
complaint, that would have been sufficient to show standing. See Am. Home Mortg.
Servicing, Inc. v. Bednarek, 132 So. 3d 1222 (Fla. 2d DCA 2014) (concluding that there
was sufficient evidence of standing when the note attached to the original complaint
contained the blank endorsement and the plaintiff introduced the original at trial). But in
this case, the original complaint included a count to reestablish a lost note, and the copy
of the note attached to that complaint lacked the endorsement. Thus, a later filed copy
of the note with the endorsement did not suffice to show standing at the time the
complaint was filed. See May v. PHH Mortg. Corp., 150 So. 3d 247 (Fla. 2d DCA 2014)
(reversing final judgment of foreclosure after jury trial when plaintiff failed to show
standing at beginning of case; original complaint included count to reestablish lost note
and attached copy of note with no endorsement; later filing of original note with
endorsements was not sufficient because bank failed to show when note was