WHAT'S IN THE NEWS - 2016

Hinkle v Midland Credit Management. Originally filed into USDC pro se by Hinkle (Plaintiff). Summary judgment was awarded to Midland/Encore. From all appearances the USDC either did not read, or read and ignored, the claims of Hinkle. Shortly thereafter Hinkle filed her appeal into the 11th Circuit Court of Appeals. At that time, or around that time, she was joined by an attorney out of Las Vegas to act as representative before the Court of Appeals. Midland/Encore filed their brief and Hinkle filed her reply. This case did get to be really interesting when the Court of Appeals ordered Oral Arguments. The recording of that hearing contains some very revealing comments from the Judges on the panel.

This case is over debts that were not her's, S(2)b reasonable investigations, and permissible purpose in pulling credit reports. This case has all of the potential to completely alter the way that Debt Buyers conduct their business, including whether or not they have standing to sue on a defaulted debt. STAND BY FOR THE COURT'S DECISION, IT HAS THE POTENTIAL OF BEING GREATER THAN 9 ON THE RICHTOR SCALE.

Sciarratta v US Bank. This is an action for wrongful foreclosure. The homeowner, Monica Sciarratta, alleges that as a result of a void assignment of her promissory note and deed of trust, the entity that conducted a nonjudicial foreclosure sale on her home had no interest in either the underlying debt or the subject property. In Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova), the California Supreme Court held that in a case such as this—where a homeowner alleges a nonjudicial foreclosure sale was wrongful because of a void assignment—the homeowner has standing to sue for wrongful foreclosure. (Id. at pp. 942–943.) However, Yvanova did not address "any of the substantive elements of the wrongful foreclosure tort" (id. at p. 924), and in particular did not address "prejudice . . . as an element of wrongful foreclosure." (Id. at p. 929, fn. 4.)

Bustamante v U.S. Bank National Association. Oscar Bustamante appeals from a judgment dismissing his lawsuit against respondents U.S. Bank, N.A., and Wells Fargo Bank, N.A., after the trial court sustained their demurrer to his second amended complaint without leave to amend. Bustamante’s complaint followed a well-worn path trodden by many former homeowners who lost their homes in the wave of foreclosures during the recession. As had many before him, he alleged a defective transfer of his note and deed of trust to a real estate trust, robo-signed recorded documents, and other causes of action typical of these lawsuits.

In the past, these complaints have not fared well. In February, however, the California Supreme Court issued its opinion in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova), which altered the legal landscape to some extent. Although declining to decide some important and vexing questions in this area, the court held that a borrower could base a cause of action for wrongful foreclosure on a void (but not voidable) trustee’s sale. The court sent the case back to give the plaintiff a chance to amend the complaint to see whether she could allege the necessary facts.

Velez v Enhanced Recovery Company, LLC. Plaintiff Radamed Velez alleges that defendant Enhanced Recovery Company, LLC (“ERC”) violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”) by sending him a collection notice (1099c) with a false, deceptive, or misleading statement regarding potential tax consequences in relation to a proposed settlement of his debt. ERC moves to dismiss. For the reasons explained below, we will deny ERC’s motion.

Joseph v Nationstar Mortgage, LLC. This is the second lawsuit Joseph has filed in an attempt to stave off a non-judicial foreclosure. The first case was brought pro se against Nationstar Mortgage, LLC, U.S. Bank National Association and McCurdy Candler. Joseph v. Nationstar Mortgage, LLC, et al., No.1: 13-cv-4122 (N.D. Ga.)(Joseph 1"). Adopting the Magistrate Judge's recommendation, the District Court dismissed the Real Estate Settlement Procedures Act and Fair Debt Collection Practices Act (FDCPA) claims against Nationstar without prejudice and allowed the Truth in Lending Act claim against U.S. Bank and the FDCPA claim against McCurdy Candler to proceed.

HSBC v Joseph T Buset || OCWEN Guillotined in Florida Bench Trial. THIS CAUSE having come before the Court for Trial on March 17 and 18, 2016, and the Court having reviewed Defendant’s Motion for Sanctions Under the Court’s Inherent Contempt Powers for Fraud Upon the Court, and being otherwise advised in the premises, it is hereupon: ORDERED AND ADJUDGED that Defendant’s Motion for Involuntary Dismissal after Trial is GRANTED for the following reasons: http://stopforeclosurefraud.com/2016/04/29/hsbc-v-joseph-t-buset-ocwen-guillotined-in-florida-bench-trial-and-then-rapped-for-oh-so-filthy-hands-order-granting-defendants-motion-for-involuntary-dismissal-for-u-n-c-l/

Dimock v. Emerald Properties. Because the respondent beneficiary in this case recorded a substitution of trustee, thereafter only the substituted trustee had the power to sell the trustor's property at a foreclosure sale. Thus a later sale by the prior trustee was void. Accordingly we must reverse a judgment entered in favor of the respondents and direct that a judgment be entered quieting title in favor of plaintiff and appellant, the trustor under the deed of trust.

Sosa v The Bank of New York Mellon. This is an appeal from a residential foreclosure which ended in judgment in favor of Bank of New York Mellon (“the Bank”). On appeal, Jorge and Jeanette Sosa (“Homeowners”) argue, inter alia, that the Bank failed to prove it had standing to bring the action. We agree and reverse.

Davis v Diversified Consultants, Inc.. Davis has moved for partial summary judgment as to the TCPA claim, and DCI has cross-moved for summary judgment on all counts. Davis also has moved to strike an affidavit submitted by DCI in support of its motion. For the reasons set forth below, defendant’s motion to strike will be denied, defendant’s motion for summary judgment will be denied, and plaintiff’s motion for summary judgment will be granted in part and denied in part.

Deutsche Bank v Thompson. In this foreclosure action, the self-represented defendant Rodney Thompson[1] appeals from the judgment of strict foreclosure, rendered in favor of the plaintiff, Deutsche Bank National Trust Company, as trustee.[2] On appeal, the defendant claims, among other things, that the plaintiff lacked standing to bring this action because it was not in possession of the subject note at the time the action was commenced.[3] Because the resolution of this claim is dependent upon a factual finding that is not part of the appellate record, and because this claim implicates the subject matter jurisdiction of the trial court, we are unable to review the merits of this appeal. We therefore reverse the judgment of the trial court and remand the case for further proceedings.

Yvanova STRIKES Thrice. ACTUALLY it was SEVEN: -- KESHTGAR v. U.S. Bank -- Mendoza v. JPMorgan Chase Bank -- Castrp v. Indymac INDX Mortgage Loan Trust 2005-AR21 -- V A C A T E D -- “…with directions to vacate its decision and to reconsider the cause in light of Yvanova v. New Century Mortgage Corp. …” In PDF format

Kenny v LVNV. The FDCPA Class action law suit that never was.

Kenny v LVNV. Here's why.

Saterbak v Chase Bank appeal to California Supreme Court. In Yvanova, 62 Cal.4th at 924, this Court held a homeowner had “standing” to challenge a void assignment of her home loan through an action for wrongful foreclosure: “We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a pretty to the assignment.” The Court did not decide whether this rule applied to actions where the borrower’s home had yet to be sold through a foreclosure sale. Ibid.

Saterbak v Chase Bank 4th Appellate District - California. Laura Saterbak appeals a judgment dismissing her first amended complaint (FAC) after the sustaining of a demurrer without leave to amend. Saterbak claims the assignment of the deed of trust (DOT) to her home by Mortgage Electronic Registration Systems, Inc. (MERS) to Structured Asset Mortgage Investment II Trust 2007-AR7 Mortgage Pass-Through Certificates 2007-AR7 (2007-AR7 trust or Defendant) was invalid. Arguing the assignment occurred after the closing date for the 2007-AR7 trust, and that the signature on the instrument was forged or robo-signed, she seeks to cancel the assignment and obtain declaratory relief. We conclude Saterbak lacks standing and affirm the judgment.

CFPB v New Century Financial Services, Inc. (Consent Order). The Consumer Financial Protection Bureau (Bureau) has reviewed the practices of New Century Financial Services, Inc. ( Respondent) regarding its debt-collection efforts, including filing lawsuits against Consumers, and has identified violations of Sections 807(3), 807(10), and 808 of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e(3), 1692e(10), and 1692f, and Sections 1031(a) and 1036(a) of the CFPA, 12 U.S.C. §§ 5531(a) and 5536(a). Under Sections 1053 and 1055 of the Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. §§ 5563, 5565, the Bureau issues this Consent Order (Consent Order). Stipulation or Stipulated Judicial Order to follow as soon as obtained.

CFPB v Pressler & Pressler, LLP, Sheldon H. Sheldon H. Pressler and Gerald J. Felt (Highlighted). The Consumer Financial Protection Bureau (Bureau) has reviewed the practices of Pressler & Pressler, LLP (Pressler & Pressler or Firm), Sheldon H. Pressler, and Gerard J. Felt, (collectively Respondents) regarding their debt-collection efforts, including filing lawsuits against Consumers, and has identified violations of Sections 807(3), 807(10), and 808 of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e(3), 1692e(10), and 1692f, and Sections 1031(a) and 1036(a) of the CFPA, 12 U.S.C. §§ 5531(a) and 5536(a). Under Sections 1053 and 1055 of the Consumer Financial Protection Act of 2010 (CFPA), 12 U.S.C. §§ 5563, 5565, the Bureau issues this Consent Order (Consent Order). Stipulation or Stipulated Judicial Order to follow as soon as obtained.

Deutsche Bank Nat'l Trust Co. v. Johnston (New Mexico Supreme)

Justica Opinion Summary

Petitioner Deutsche Bank National Trust Company, acting as trustee for Morgan Stanley ABS Capital 1 Inc. Trust 2006-NC4 (Deutsche Bank), filed a complaint seeking foreclosure on Respondent Johnny Johnston's home (Homeowner), and attached to its complaint an unindorsed note, mortgage, and land recording, both naming a third party as the mortgagee. Deutsche Bank later provided documentation and testimony showing that :(1) a document assigning the mortgage to Deutsche Bank was dated prior to the filing of the complaint but recorded after the complaint was filed; (2) Deutsche Bank possessed a version of the note indorsed in blank at the time of trial; and (3) a servicing company began servicing the loan to Homeowner on behalf of Deutsche Bank prior to the filing of the complaint. After receiving this evidence, the district court found that Deutsche Bank had standing to foreclose on Homeowner’s property. The Court of Appeals disagreed, finding that “standing is a jurisdictional prerequisite for a cause of action,” and concluded that the evidence provided by Deutsche Bank did not establish its standing as of the time it filed its complaint. The Supreme Court held that standing was not a jurisdictional prerequisite in this case. Nonetheless the Court affirmed the Court of Appeals’ ultimate conclusion that the evidence provided by Deutsche Bank did not establish standing.

McCulley v US BANK of Montana. Pro Se awarded 1mil in compensitory damages and 5mil in punitive damages for bait and switch by US Bank, accordingly Montana Supreme Court affirmed. Relying on erroneous sworn affidavits and documents submitted by U.S. Bank, the District Court dismissed McCulley’s claims and entered summary judgment in favor of the Bank. Following McCulley’s pro se appeal, this Court reversed and remanded for further proceedings regarding McCulley’s allegations of fraud. McCulley v. Am. Land Title Co., 2013 MT 89, ¶ 36, 369 Mont. 433, 300 P.3d 679.

Maryland Void Judgments May Be Attacked at Any Time, at Any Place, and in Any Proceeding.
Finch v. LVNV, 212 Md. App. 748, 768 (2013). “[A] void judgment…is open to attack [ ] in any proceeding, direct or collateral, and at any time or place….”

In Maryland, the law is clearly established that a debt collector must be licensed to collect debt in Maryland, either by letter and phone calls, or by filing lawsuits. The question arose as to whether judgments obtained by unlicensed debt collectors (many of whom later went on to obtain a license) are valid. The court in Finch stated loudly and clearly that judgments obtained in Maryland by unlicensed debt collectors are void.

Further, the Maryland Court of Special Appeals stated in Finch that “[a] judgment which is void may be collaterally attacked at any time.” 212 Md. App. at 765. The court then went on to state:

[I]f a court acts without jurisdiction its action is a nullity; and equity demands that a proceeding be reopened and a respondent be permitted to answer and defend…. The law is settled in this State. A judgment by a court without jurisdiction over the parties is not merely erroneous, but ‘is absolutely void and may be assailed at all times, and in all proceedings by which it is sought to be enforced….’

Id. (citations, quotations and some punctuation omitted).

Judgments which are obtained by fraud, mistake or irregularity are likewise subject to challenge at any time. For example, Rules 2-535(b) and 3-535(b) state: “On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity.”

Conclusion: under Maryland law there is no time limit within which to attack void judgments obtained by unlicensed debt collectors.

http://www.hollandlawfirm.com/uncategorized/maryland-void-judgments-may-be-attacked-at-any-time-any-place-and-in-any-proceeding/

The City of Los Angeles v. Morgan. An excellend discussion of Voids and Void Documents from a California Appeals Court Case. Lots and Lots of California case law cited.

Henson v Santander USDC decision, 4th Circuit Court of Appeals decision, perhaps the most devastating case decision ever made to consumer protection statutes. The decision essentially makes all debt buyers, that collect the debt they bought for themselves, creditors instead of debt collectors. What makes this decision so unbelievable is that the Plaintiff forced the court into making the decision that was made. Amicus Briefs from AARP; NACA-NCLC-Maryland Attorney General were filed into the case in support of the Plaintiff. The FDCPA and the FCRA have both, for all practal purposes, have been repealed. One would be hard pressed to believe that they didn't know exactly what they were doing and what the results the court was being forced make. Listen to the court's interaction to Plaintiff's oral arguments. To top off all of the above, this case has virtually neutered the CFPB.

Objections to Document Demands Under Amended FRCP Rule 34. The approach of objecting to document demands with boilerplate language containing half a dozen or more objections that have no actual nexus to the demands at issue has been used by litigators for decades. However, this approach is no longer acceptable in federal courts. December 1, 2015, marked the enactment of a substantial package of amendments to the Federal Rules of Civil Procedure that was driven in large part by concerns related to e-discovery and the production of electronically stored information (ESI). See Also.

CFPB consent order Citibank NA. The Consumer Financial Protection Bureau (CFPB) announced two separate actions four separate Consent Decrees relating to Citibank’s debt sales and debt collection practices.

The First Action

In the first action, the CFPB ordered Citibank to provide nearly $5 million in consumer relief and pay a $3 million penalty for selling credit card debt with inflated interest rates and for failing to forward consumer payments promptly to debt buyers.

In making the announcement CFPB Director Richard Cordray commented “Citibank sent inaccurate information to buyers when it sold off credit card debt and it also used law firms that altered court documents. Today’s action provides redress to consumers who were victimized by slipshod practices as part of our ongoing work to fight abuses in the debt collection market.”

Yvanova v New Century Mortgage Corporation et al. THE SUPREME COURT OF CALIFORNIA: "The collapse in 2008 of the housing bubble and its accompanying system of home loan securitization led, among other consequences, to a great national wave of loan defaults and foreclosures. One key legal issue arising out of the collapse was whether and how defaulting homeowners could challenge the validity of the chain of assignments involved in securitization of their loans. We granted review in this case to decide one aspect of that question: whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void." (This ruling makes the distinction between that which is void on its face and that which is merely voidable.)

Jesinoski v Countrywide Home Loans. Supreme Court of the United States. OVERVIEW: HOLDINGS: [1]-The language of 15 U.S.C.S. § 1635(a) left no doubt that rescission was effected when a borrower notified the creditor of his intention to rescind; [2]-So long as the borrower notified within three years after the transaction was consummated, his rescission under the Truth in Lending Act was timely, and there was no requirement that a borrower sue within three years; [3]-The borrowers' complaint was improperly dismissed as untimely where they had mailed the lenders a written notice of their intention to rescind within three years of their mortgage loan's consummation, and that was all that was required in order to exercise the right to rescind under the Act.

OUTCOME: Judgment reversed; case remanded. Unanimous Decision.

Hamburger v Northland Group. If ever there was a case of WHAT NOT TO DO, it is this case. The Plaintiff's lied, they lied to the Defendant, they lied to the Court. What's more significant is that they essentially got away with it, only because their lies did not make a material difference in the outcome of the case. They were within the width of a fine red hair of stepping over the line and putting themselves at risk when they had no need to. DON'T DO THIS, ESPECIALLY IF YOU ARE PRO SE, it is dangerous.

ON THE OTHER HAND, this is a great case for demonstrating how the judges hands are tied by the pleadings when it comes to what he can and cannot do in his decisions.

BREAKING- HSBC Will Pay $470M In Federal-State Mortgage Case - Law360. HSBC committed to providing $370 million in consumer relief that will primarily go toward lowering the principal on mortgages at risk of default and lowering interest rates on other mortgages, among other forms of help to troubled borrowers, and $100 million that will be paid out to homeowners who were foreclosed upon between 2008 and 2012.

Yang v Midland Credit Management Inc.. A U.S. District Court Judge in Kansas refused to dismiss a lawsuit that alleged that a debt collection letter was false and/or misleading because it failed to inform the consumer that a partial payment would revive the statute of limitations on otherwise time-barred debt.

Plaintiff claimed that MCM’s letter violated two sections of the Fair Debt Collection Practices Act (“FDCPA”): 1) §1692e(2)(A)’s prohibition on the “false representation of . . . the character . . . or legal status” of Plaintiff’s debt; and 2) § 1692e(10)’s prohibition on the “use of any false representation or deceptive means to collect or attempt to collect any debt.”

Fambrough v WalMart Stores, INC.. In foreclosure cases, how many times have assignments been challenged, only to fail. In credit card cases how many times have affidavits of debt been challenged, only to fail. The challenge was totally misplaced. It has only been recently that the assignor or affiant themselves been challenged. Challenged for their authority to make any and all statements in an assignment or affidavit of debt. This case points out that "the Rules of Evidence 803(6) must be followed, even -- and perhaps especially -- when the rule encompasses a historically low standard." If the assignor or the affiant do not have the authority to make statements on behalf of the principal, then nothing they say or write can be seen or heard by the court, it is all hearsay and inadmissible as evidence. See also Gardner v Nationstar and Matrix v Labbaris.

Lucero v Cenlar FSB, et al.. Plaintiff Leticia Lucero brought this action against her mortgage loan servicer alleging that it violated the Real Estate Settlement Procedures Act (“RESPA”), breached its contractual and good faith obligations, and committed the tort of outrage when it charged attorney’s fees and costs to plaintiff’s mortgage account and refused to explain the charges upon request. Plaintiff seeks compensatory damages and attorney’s fees in this litigation. (Even a Federal Savings Bank participates in the questionable activities of debt collectors.)

On January 22, 2016, two amicus briefs were filed in support of the FCC’s July 10th Omnibus Ruling in the consolidated appeal before the District of Columbia Circuit. One brief was filed by the National Consumer Law Center (NCLC), National Association of Consumer Advocates, Consumers Union, AARP, Consumer Federation of America, and MFY Legal Services (collectively the “NCLC Amici”). The other was filed by the Electronic Privacy Information Center (“EPIC”), Constitutional Alliance, Consumer Watchdog, Cyber Privacy Project, Patient Privacy Rights, Privacy Rights Clearinghouse, and Privacy Times (collectively the “EPIC Amici”).

Gardner v. Nationstar Mortgage LLC. Plaintiffs have alleged that the person who signed the First Assignment was not authorized to do so. Plaintiffs have pled a plausible claim that the First Assignment was invalid. It appears to the court that plaintiffs are challenging more than the MERS system. They are challenging the authority of the people who were actually signing documents for MERS. The court concludes for purposes of the motions to dismiss that plaintiffs have stated a plausible claim that defendants lacked authority to conduct the trustee’s sale (presently noticed but [*27] held in abeyance) because the First Assignment was not valid.

Psaros v. Green Tree Servicing LLC. Once again, Attorneys' can be held liable for the false and misleading statements of the clients when made to the courts. USDC New Jersey.

Thirteen Recent FDCPA Decisions from U.S. Circuit Courts of Appeals. Fair Debt Collection Practices Act litigation is one of the most active in the federal courts. This article lists 13 recent FDCPA Circuit Court of Appeals decisions. All of these decisions appear in the updated online version of NCLC's Fair Debt Collection.

CFPB v Frederick J. Hanna & Associates, Stipulated Final Judgment and Order. The Complaint alleges that in their efforts to collect debts owed to others, Defendants: (1) used complaints that falsely represented or implied meaningful attorney involvement; and (2) knowingly or recklessly used affidavits executed Case 1:14-cv-02211-AT Document 63 Filed 01/06/16 by affiants who misrepresented their personal knowledge of material facts. The Complaint alleges that Defendants' conduct violated the Fair Debt Collection Practices Act ("FDCPA") and the Consumer Financial Protection Act of 2010 ("CFPA").

Plaintiff and Defendants, by and through their respective counsel, have requested that the Court enter this Stipulated Final Judgment and Order ("Order"). (For additional History of this case see Page 2 (2015).)

Lakeview Loan Servicing v Pendleton The question in this appeal is whether an individual who provides a mortgage on her home as security for a loan, but who is not a party to the loan itself, is entitled to a notice of a right to rescind the mortgage under the federal Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.(2006)). We hold that she is so entitled.

¹The dates expressed are not the dates of the case, rather the date that the case was posted to this web site. Many cases are not published and are frequently/only found within other cases that are published.

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WHAT'S IN THE NEWS
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