Monday, September 15, 2014

No Brotherly Love In Philly (Birthplace Of U.S. Constitution) As City's 'Seize & Seal' Method Of Snatching Homes Out From Under Homeowners Over Minor, Unprosecuted Drug Allegations (w/out Criminal Charges or Convictions) Continues To Draw Light, At Heart Of Recent Federal Lawsuit

In the "City of Brotherly Love", The Pennsylvania Record reports:
  • A group of homeowners have asked a federal judge to grant a preliminary injunction against the City of Philadelphia’s practice of seizing homes accused of involvement with drug sales,(1) according to a motion filed at the U.S. District Court for the Eastern District of Pennsylvania.

    Lawyers from the Institute for Justice(2) made the request before District Judge Eduardo Robreno on behalf of a group of clients that began a class action suit against the City of Philadelphia to reclaim alleged damages from the district attorney’s long-standing practice also known as “seize and seal.”

    According to the class action suit,(3) Philadelphia has abused the civil forfeiture system to add millions of dollars in revenue to its budget.

    Philadelphia’s program stripped thousands of city residents of over 1,000 residences, 3,200 vehicles, and $44 million in cash over an eleven-year period, ultimately raking in more than $64 million in revenue wholly outside its appropriated budget,” the complaint says.

    The claim says the system operates by having the D.A.’s office sue properties, not the owners, in civil actions relating to drug activity. The homeowners are required to come to the court and defend against the allegations, but if the city wins, it keeps the property and sells it.

    The named plaintiffs in the class action all stand to lose their homes through the civil forfeiture process, the complaint says. Christos Sourovelis, Doila Welch and Norys Hernandez represent thousands of residents who have been unfairly evicted from their homes with no notice from law enforcement and little recourse to win back their properties, the complaint says.

    In all three cases, a family member had been arrested for selling small amounts of marijuana, according to the claim. Philadelphia police officers received authorization from the district attorney’s office and the court to remove all of the occupants and seal the home for civil forfeiture. In the cases of Sourovelis and Welch, they were eventually allowed to re-enter their homes after attending numerous court proceedings and filling out paperwork.

    The plaintiffs seek declaratory and injunctive relief for themselves and all others affected by the city’s use of civil forfeitures, the complaint says.
Source: Homeowners file for injunction against Philadelphia’s civil forfeitures.

See also, KYW-TV Channel 3/CBS Philly: Philadelphia Homeowners Try To Stop DA’s Quick Property Seizures ("The practice is called “Seize and Seal,” and it allows the Philadelphia DA’s office to get an order from a judge to seize a home that is linked to alleged drug activity.").

For more on the profit incentive at the heart of civil forfeiture laws that encourages some law enforcement agencies to pursue property, rather than justice, by seizing people's homes, cash, etc. without ever having to bring criminal charges, see:
For earlier posts on law enforcement's abuse of civil forfeiture laws in efforts to rip off people's property, see:
(1) See, for example:
  • Philadelphia's Civil Forfeiture Machine ("Unlike criminal forfeiture, where the government takes someone’s property only after he or she has been convicted of a crime, police and prosecutors can use civil forfeiture to take the cash, cars and homes of people without ever having to convict or even charge the owner with any wrongdoing. This is because civil-forfeiture cases technically are filed against the property rather than its owner, ..."),
  • Philadelphia City Paper: The Cash Machine.
(2) The Institute for Justice is a non-profit, 501(c)(3) public interest/civil liberties law firm engaging in litigation and advocacy both in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government, with its primary focus on private property, economic liberty, free speech and school choice, according to its website.

(3) Sourovelis v. City of Philadelphia (filed August 11, 2014):

Saturday, September 13, 2014

NJ Supremes Adopt Eight-Factor Standard For Equitable Mortgage Determination In Sale Leaseback Transactions; May Serve As Comprehensive, Practical Guide In Attempts To Undo Equity Stripping Foreclosure Rescue Scams

Reprinted from a recent Opinion Summary:
  • The issue this appeal presented for the New Jersey Supreme Court's review centered on an agreement for the sale of a residential property and a subsequent lease and repurchase agreement, specifically whether the transactions collectively gave rise to an equitable mortgage, violated consumer protection statutes, or contravened its decision in "In re Opinion No. 26 of the Committee on the Unauthorized Practice of Law," (139 N.J. 323 (1995)).

    In 2007, defendant Barbara Felton faced foreclosure proceedings with respect to her unfinished, uninhabitable home and the land on which it was situated. Felton and plaintiff Tahir Zaman, a licensed real estate agent, entered into a written contract for the sale of the property. A week later, at a closing in which neither party was represented by counsel, Felton and Zaman entered into two separate agreements: a lease agreement under which Felton became the lessee of the property, and an agreement that gave her the option to repurchase the property from Zaman at a substantially higher price than the price for which she sold it.

    For more than a year, Felton remained on the property, paying no rent. She did not exercise her right to repurchase. Zaman filed suit, claiming that he was the purchaser in an enforceable land sale agreement, and that he therefore was entitled to exclusive possession of the property and to damages. Felton asserted numerous counterclaims, alleging fraud, slander of title, violations of the Consumer Fraud Act (CFA), and violations of other federal and state consumer protection statutes. She claimed that the parties’ transactions collectively comprised an equitable mortgage and constituted a foreclosure scam, entitling her to relief under several theories. She further contended that the transactions were voidable by virtue of an alleged violation of "In re Opinion No. 26."

    A jury rendered a verdict in Zaman’s favor with respect to the question of whether Felton knowingly sold her property to him. The trial court subsequently conducted a bench trial and rejected Felton’s remaining claims, including her contention that the transactions gave rise to an equitable mortgage and her allegation premised upon In re Opinion No. 26. An Appellate Division panel affirmed the trial court’s judgment.

    The Supreme Court affirmed in part and reversed in part the Appellate Division’s determination. The Court affirmed the jury’s determination that Felton knowingly sold her property to Zaman. Furthermore, the Court affirmed the trial court and Appellate Division's decisions that Felton had no claim under the CFA, that this case did not implicate "In re Opinion No. 26," and that Felton’s remaining claims were properly dismissed.

    The Court reversed, however, the portion of the Appellate Division’s opinion that affirmed the trial court’s dismissal of Felton’s claim that the parties’ agreements constituted a single transaction that gave rise to an equitable mortgage, adopting an eight-factor standard for the determination of an equitable mortgage(1) set forth by the United States Bankruptcy Court in "O’Brien v. Cleveland," (423 B.R. 477 (Bankr. D.N.J. 2010)).

    The case was remanded to the trial court for application of that standard to this case, and, in the event that the trial court concludes that an equitable mortgage was created by the parties, for the adjudication of two of Felton’s statutory claims based on alleged violations of consumer lending laws, as well as several other claims not adjudicated by the trial court.
For the opinion summary and the court ruling, see Zaman v. Felton, Docket a-60-12 (N.J. Sept.9, 2014.

For related posts, see:

(1) The court's analysis of this issue follows:
    In O Brien, supra, the Bankruptcy Court scrutinized a residential sale that was conducted under the threat of imminent foreclosure, in which the parties agreed that the seller would remain in his home and buy the home back from the buyer in a series of payments over time. 423 B.R. at 483-86. It identified eight factors to assist trial judges in determining whether a given transaction gives rise to an equitable mortgage:
    [(1)] Statements by the homeowner or representations by the purchaser indicating an intention that the homeowner continue ownership;
    [(2)] A substantial disparity between the value received by the homeowner and the actual value of the property;
    [(3)] Existence of an option to repurchase;
    [(4)] The homeowner s continued possession of the property;
    [(5)] The homeowner s continuing duty to bear ownership responsibilities, such as paying real estate taxes or performing property maintenance;
    [(6)] Disparity in bargaining power and sophistication, including the homeowner s lack of representation by counsel;
    [(7)] Evidence showing an irregular purchase process, including the fact that the property was not listed for sale or that the parties did not conduct an appraisal or investigate title;
    [(8)] Financial distress of the homeowner, including the imminence of foreclosure and prior unsuccessful attempts to obtain loans. [Id. at 491.]
    Under the O Brien framework, the court considers not only the form of the transaction itself but circumstances that can motivate a party to disguise a mortgage secured by a property as a sale of land and indications that both parties intend the seller to retain the land notwithstanding the purported sale.
    We concur with the District Court that the eight factors set forth in O Brien are useful and consistent with New Jersey equitable mortgage jurisprudence. Johnson, supra, 698 F. Supp. 2d at 470. We adopt the O Brien factors as a comprehensive and practical standard to guide trial courts as they determine whether a particular transaction, or series of transactions, gives rise to an equitable mortgage.
    We remand the matter to permit the trial court to make findings addressing each of the eight factors that comprise the O Brien test.

Saturday, August 30, 2014

Another Out-Of-Control Condo Association Feels The Bite After Jerking Around Disabled Veteran & His Emotional Support Dog In Violation Of Federal, Florida Fair Housing Acts; Appeals Court OKs $5K In Compensatory Damages, Sticks HOA w/ $127K+ Tab For Homeowner's Legal Fees

Courthouse News Service reports:
  • A condo association must pay $5,000 in damages, plus $127,000 in attorneys' fees, for insisting that a veteran with PTSD get rid of his emotional support dog,(1) the 11th Circuit ruled.

    Ajit Bhogaita is a U.S. Air Force veteran who suffers from post-traumatic stress disorder after he was sexually assaulted during his military service.

    In 2001, he bought a condo unit in Altamonte Springs, Florida. The condo association prohibits keeping dogs weighing more than 25 pounds, but Bhogaita bought a dog, Kane, in 2008 that was over the weight limit.

    "Bhogaita's psychiatric symptoms improved with Kane's presence, so much so that Bhogaita began to rely on the dog to help him manage his condition," according to the judgment.

    When the association ordered him to get rid of Kane two years later, Bhogaita argued that the dog was an emotional support animal, and filed a complaint with the U.S. Department of Housing and Urban Development.

    After a civil trial, a jury awarded Bhogaita $5,000 in compensatory damages for the Association's refusal to accommodate his disability. The court also awarded him $127,000 in attorneys' fees. The 11th Circuit affirmed the jury's verdict, and the fee award Wednesday.

    "Bhogaita produced evidence from which a reasonable fact finder could conclude that his dog alleviated the effects of his PTSD. Specifically, Dr. Li's letters said that Kane assists Bhogaita 'in coping with his disability,' and 'ameliorate[s]' Bhogaita's 'psychiatric symptoms,' and that without the dog, Bhogaita's 'social interactions would be so overwhelming that he would be unable to perform work of any kind,'" Judge Joel Dubina said, writing for the three-judge panel.

    The association also insists that it was prejudiced by the court's decision to allow Kane's presence in the courtroom and at Bhogaita's side during his testimony.

    "A district court abuses its discretion to admit relevant evidence when its decision rests on a clearly erroneous fact-finding, 'an errant conclusion of law, or an improper application of law to fact,'" the judge said. "Nothing suggests that the district court's decision allowing the dog to remain present as a demonstrative exhibit rested on any of the three."

    As Bhogaita's $5,000 recovery was not nominal, he was entitled to attorneys' fees as the prevailing party, Dubina wrote.
Source: Condo Must Pay For Causing Dog's Eviction.

For the ruling, see Bhogaita v. Altamonte Heights Condo Assoc., Nos. 13-12625; 13-13914 (11th Cir. August 27, 2014).

Go here for other stories on emotional support animals and the Fair Housing Act.

(1) An emotional support animal is an assistance animal that does not receive any specialized training to assist those with mental disabilities, but whose function is to simply provide motivation and emotional support to their owners (and that apparently qualifies as a 'reasonable accommodation' in connection with the enforcement of the federal Fair Housing Act; however such an assistance animal may not qualify as a 'service animal' in connection with the enforcement of the federal Americans With Disabilities Act). Emotional support animals are to be contrasted with what the literature refers to as 'service animals', animals that do receive specifice training to do work or perform tasks for those with disabilities.

See generally:
It should be noted that, in enforcing the Americans with Disabilities Act, it appears that 'service animals' may be limited to dogs, and that said dogs must have received the necessary training to do work or perform tasks for their owners (see Revised ADA Requirements - Service Animals). It doesn't appear that, in enforcing the Fair Housing Act, there are similar requirements for an animal to qualify as an emotional support/assistance animal constituting a 'reasonable accommodation' for its owner in connection with the enforcement of that owner's housing rights (although I suspect that the animal's owner will at least need a doctor's note prescribing the animal for the owner/patient's emotional stability, or possibly some other objective proof). See Reasonable Accomodations Under The Fair Housing Act - Q & A # 6, 11, 17.

Friday, July 04, 2014

Maine Supremes: Despite Lender's Sufficient Proof Of Its Status As Holder Of Note, Its Failure To Prove Ownership Of Mortgage Proves Fatal To Its Standing To Proceed With Foreclosure Action; Indicates That Mortgage May Not Always Follow The Note

A recent ruling by the Maine Supreme Court involving a foreclosure action serves as a reminder that, at least under the state law of Maine, the principle that the "mortgage follows the note" apparently does not necessarily apply where the foreclosing party merely proves its status as holder of the promissory note. Consequently, a foreclosing party in Maine must prove both:
  • its status as "holder" of the promissory note, and
  • its ownership of the mortgage securing the promissory note
in order to establish its standing to foreclose.

From a recent Opinion Summary:
  • Scott Greenleaf executed a promissory note to Residential Mortgage Services, Inc. (RMS). That same day, Greenleaf signed a mortgage on property securing that debt. The mortgage listed RMS as the lender of the debt and Mortgage Electronic Registration Systems, Inc. (MERS) as the nominee for the lender.

    MERS subsequently assigned its interest in the mortgage and note to Countrywide Home Loans Servicing, LP (BAC). BAC then merged with Bank of America, N.A. (Bank). Five years later, the Bank instituted foreclosure proceedings against Greenleaf. The district court entered a judgment of foreclosure in favor of the Bank.

    Greenleaf appealed, arguing that the Bank lacked standing to foreclose on the property.

    The Supreme Court agreed with Greenleaf and vacated the judgment, holding (1) the Bank proved its status as the holder of the note but failed to establish its ownership of Greenleaf’s mortgage;(1) and (2) because the Bank failed to satisfy two of the Higgins foreclosure requirements, the Bank was not entitled to a judgment of foreclosure in any event.
Source: Opinion Summary: Bank of Am., N.A. v. Greenleaf.

For the court ruling, see Bank of America, N.A. v. Greenleaf, 2014 ME 89 (ME. July 3, 2014).

Representing the homeowner were Thomas A. Cox, Esq.,(2) Portland, Maine, and John D. Clifford IV, Esq., Clifford & Golden, PA, Lisbon Falls, Maine.

Filing a joint "friend of the court" brief in support of the homeowner's position in this case were Yale University Law School's Jerome N. Frank Legal Services Organization,(3) New Haven, Connecticut, and the National Consumer Law Center, Boston, Massachusetts.

(1) From the court's ruling:
  • The interest in the note is only part of the standing analysis, however; to be able to foreclose, a plaintiff must also show the requisite interest in the mortgage.

    Unlike a note, a mortgage is not a negotiable instrument. See 5 Emily S. Bernheim, Tiffany Real Property § 1455 n.14 (3d ed. Supp. 2000). Thus, whereas a plaintiff who merely holds or possesses—but does not necessarily own—the note satisfies the note portion of the standing analysis, the mortgage portion of the standing analysis requires the plaintiff to establish ownership of the mortgage. See Harp, 2011 ME 5, ¶ 9, 10 A.3d 718.

    In Wilk, for example, Deutsche Bank was able to satisfy the note portion of the analysis by establishing that it was the holder of the note. 2013 ME 79, ¶ 10 & n.3, 76 A. 3d 363. In its attempt to establish its interest in the mortgage, Deutsche Bank produced a series of mortgage assignments from the original lender leading to OneWest Bank, and then from One West to Deutsche Bank. The purported assignment from OneWest to Deutsche Bank, however, was dated two weeks before OneWest had acquired the mortgage from its predecessor. Id. ¶ 12. Notwithstanding Deutsche Bank’s adequate interest in the note, we vacated the judgment of foreclosure because Deutsche Bank failed to introduce any evidence that it owned the mortgage. Id. ¶ 22.
(2) Thomas Cox is Volunteer Program Coordinator at Maine Attorneys Saving Homes, a joint project of the non-profit law firm Pine Tree Legal Assistance ("PTLA") (which provides free legal help to Maine people with low incomes), and the Maine Volunteer Lawyers Project (a part of PTLA which coordinates the volunteer efforts of Maine attorneys and community members to help people of low income navigate the civil justice system.

(3) Yale University Law School's Jerome N. Frank Legal Services Organization links law students with individuals and organizations in need of legal help who cannot afford private attorneys.

Thursday, June 12, 2014

Lowlife Lawyer/Church Pastor Gets Six Years For Swindling Multi-Million Dollar Harlem Apartment Building Out From Under Elderly Widow; NYC Feds Frog-March Felon Away To Prison While Weeping Wife, Kids Watch; Deportation To Nigeria May Be Next For Foreign National

In New York City, SaharaReporters reports:
  • A former Brooklyn-based civil attorney, and Pastor of the Deeper Life Bible Church, Ifeanyichukwu Eric Abakporo, was [] in federal court in New York sentenced to six years in a United States prison in a case of defrauding banks, mortgage lenders, property owners, and property buyers.

    Mr. Abakporo was immediately remanded into custody by presiding U.S. District Court Judge, Shira A. Scheindlin. His wife and two children wept openly in the courtroom. He was led away in handcuffs.

    In addition to the six-year mandatory sentence, Abakporo will more than likely face deportation to Nigeria after serving his sentence, with the likelihood of a three-year supervisory probation release waved.

    His co-defendant, Latanya Pierce, received a lighter, 30-month sentence. In her closing statement, Pierce said she felt like the “biggest fool in the world.”

    The legal fate of Abakporo and Pierce was never in doubt. They were convicted in a wide-ranging series of illegal transactions in New York City over a nine-year stretch, dating back to 2003.

    Following the sentencing procedures, neither prosecuting attorneys nor the attorneys defending the two would offer comments to SaharaReporters.

    As Abakporo was away in handcuffs, his wife and two children wept openly in the courtroom.
Source: Deeper Life Bible Church Pastor, Eric Abakporo, Sentenced To Six Years For Real Estate Fraud.

For earlier stories, see:

Tuesday, June 10, 2014

'Disability Dog' Takes $300K Bite Out Of Rogue Condo Association For Jerking Around His Wheelchair-Bound, Reasonable Accomodation-Seeking Owner In Violation Of Fair Housing Act

In Davie, Florida, The Miami Herald reports:
  • Calling the behavior of a Davie condominium association “absurd” and “unreasonable,” a federal judge has ordered a Davie condominium to allow a disabled resident to keep her service dog.

    The two-year dispute will carry a hefty price tag for the Sabal Palm Condominiums: $300,000.

    Deborah Fischer, a retired Broward art teacher who was diagnosed with multiple sclerosis in 2000, was sued by Sabal Palm Condominiums after her dog, Sorenson, moved into her apartment in November 2011. Fischer, who uses a wheelchair and has limited use of her arms and hands, needs Sorenson to pick things, up, open and close doors and retrieve items from counter tops.

    “Sabal Palm got it exactly — and unreasonably — wrong,” U.S. District Judge Scola wrote in his order. “This is not just common sense — though it is most certainly that.”

    The condominium complex in Davie’s Pine Island Ridge neighborhood does not allow pets over 20 pounds and demanded medical records and other information to prove that Fischer needed Sorenson — a 5-year-old Labrador-golden retriever mix — to help her. Saying Fischer didn’t provide the proper documentation, the condo association sued, said the woman’s attorney, Matthew Dietz of Miami.

    Fischer, along with her husband, Larry, counter-sued, saying the condo board’s demands violated the federal Fair Housing Act, or FHA.

    Scola agreed with Fischer, and gave the condo board a serious verbal lashing in his 30-page order.(1)

    That the condo association “turned to the courts to resolve what should have been an easy decision is a sad commentary on the litigious nature of our society,” Scola wrote in a March 19 order. “And it does a disservice to people like Deborah who actually are disabled and have a legitimate need for a service dog as an accommodation under the FHA.”

    In their arguments, board members suggested that, even if Fischer needed a service dog, she could have gotten by with an animal that did not weigh more than the Sabal Palm’s 20-pount limit. But, Scola wrote, such a dog would not have been able to meet Fishcer’s needs. Sorenson, the judge ruled, was a “reasonable accommodation” to Sabal Palm’s requirements.

    “That a blind person may already have a cane, or that he or she could use a cane instead of a dog in no way prevents the blind person from also obtaining a seeing-eye dog as a reasonable accommodation under the FHA,” Scola wrote. “A contrary result is absurd.”

    After Scola ruled in the Fischers’ favor, Dietz said he negotiated the $300,000 settlement with the attorney representing Sabal Palm, Karen Nissen.

    Nissen did not return calls or an e-mail Tuesday. David Rosinsky, the attorney representing Marvin Silvergold, who was the board president at the time and was sued individually, said the case was “amicably resolved.” A summary judgment against Christopher Trapani, who was the attorney of the association at the time, was denied. Trapani could not be reached for comment.

    Fischer said the dispute started in November 2011, when she brought Sorenson home after getting him from Canine Companions for Independence, a nonprofit group that provides service dogs for people with disabilities. She had sent the complex’s association a letter notifying them that she would be getting a service dog. For five months, Fischer went back and forth with the association.

    “I have an obvious disability,” she said. “I just couldn’t believe how hard they were making it.”

    Fischer said Sorenson quickly became an important part of her life. He helped her do things she couldn’t do for herself — such as turning the lights in her apartment on and off, picking up TV remotes from coffee tables or counters, or scooping up keys from the floor. The retriever allowed her to perform routine tasks without bothering her husband.

    In all, Sorenson can recognize 40 separate commands, Fischer said.

    “He has made my life so much better,” she said.

    But as the litigation dragged on in court, Fischer said, the drama began to overwhelm her. She had lived in the complex for more than a dozen years, and, suddenly, people she had lived near for years were adverse parties to a lawsuit.

    “It was very difficult to deal with,” she said.

    Fischer’s lawyer said the facts were clear: “This is one of the worst cases like this that I’ve seen,” said Dietz, who specializes in civil rights and disability lawsuits. “It is obvious that the service dog would help her.”

    Dietz said a new board has since been elected and the rules have changed. He hopes the case will help others become more sensitve to the needs of disabled people.

    Fischer agreed, saying she hopes no one has to go through what she went through.

    “I am finally free of the questions, investigations and litigation,” she said. “We are at the point where we can have some peace of mind and finally move forward.”
Source: Davie woman with banished service dog gets $300,000 condo settlement (A Davie condo resident with MS will receive $300,000 from her Davie complex after she was told she couldn’t keep her service dog in her unit).

For the court ruling, see Sabal Palm Condominiums of Pine Island Ridge Association, Inc., v. Fischer, Case No. 12-60691-Civ-SCOLA (S.D. Fla. March 19, 2014).

(1) Judge Scola prefaced his ruling by acknowledging that, while the case before him was not such a case, "[t]here is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support."

See Fake Service Dogs, Real Problem or Not? and Disability Dog Scams for more on the possible use of fake service dogs and fake identification by individuals to obtain special access to housing, public places or airports/airlines for their animal.

See, generally:
Go here and go here for earlier posts on service animals and the Fair Housing Act.

Thursday, May 22, 2014

Loan Modification Deals That Leave Homeowners Bound & Gagged Grow More Widespread, Preventing Borrowers From Bad-Mouthing Banksters Or Suing Them In Court For Future Misconduct

Reuters reports:
  • Joseph and Neidin Henard thought they had finally fixed the mortgage that was crushing them.

    In January, the couple reached a settlement with every company that had a stake in the mortgage on their house in Santa Cruz, California, a deal that would have slashed their monthly payment by almost 40 percent to $3,337. It was the end of a process that started with their defaulting in 2009.

    But when they saw the final paperwork for their settlement, they found that Ocwen Financial Corp, the company that collected and processed their mortgage payments, had added an extra clause: they could not say or print or post anything negative about Ocwen, ever.

    The Henards' experience was not unusual. Mortgage payment collectors at companies including Ocwen, Bank of America Corp and PNC Financial Services Group are agreeing to ease the terms of borrowers' underwater mortgages, but they are increasingly demanding that homeowners promise not to insult them publicly, consumer lawyers say. In many cases, they are demanding that homeowners' lawyers agree to the same terms. Sometimes, they even require borrowers to agree not to sue them again.

    These clauses can hurt borrowers who later have problems with their mortgage collector by preventing them from complaining publicly about their difficulties or suing, lawyers said. If a collector, known as a servicer, makes an error, getting everything fixed can be a nightmare without litigation or public outcry.
  • Attorneys for lenders and servicers say consumer lawyers are overstating the importance of these clauses. Banks are looking to avoid being sued again for the issues resolved in the settlement, but understand they may be sued if they are responsible for a future wrong, said Martin Bryce, a partner with Ballard Spahr in Philadelphia who specializes in consumer finance and banking.

    Bryce acknowledges that the language is ambiguous - under the waivers, homeowners often give up the right to sue on claims "whether existing now or to come into existence in the future."
  • Clauses preventing future disparagement and lawsuits first started appearing after the housing crash, but they have grown more widespread in the last six months, said Ira Rheingold, executive director of the National Association of Consumer Advocates in Washington.

Saturday, May 17, 2014

Lender Ordered To Swallow $200K 'Cramdown' On Home Loan Modification In Chapter 13 Bankruptcy Case Despite Fact That Loan Was 1st Mortgage On Borrower's Primary Residence

In Miami, Florida, the Daily Business Review reports:
  • Even though a Miami man made money renting part of his duplex, a judge ruled in his favor and lowered the debt on his residential mortgage by nearly $200,000 in a Chapter 13 bankruptcy case.

    The question wasn't whether the duplex was Luis L. Ramirez's primary residence, U.S. Bankruptcy Judge A. Jay Cristol wrote in an April 7 order. It was whether the multifamily home on Northwest 26th Street met the legal test that allowed the modification of a first priority mortgage.

    "If you're using the home as part of an investment, then there's more of a risk to the lender," said Jacqueline Ledon, staff attorney at Legal Services of Greater Miami Inc.,(1) the nonprofit that filed the motion on Ramirez's behalf. "Primary residences are less risky. Most people will do whatever it takes to save the roof over their head."

    The bankruptcy code typically bans the modification of interest rates, principal and other terms on residential first priority mortgages.

    But in a case that hinged on how the court would treat a duplex where the homeowner rented part of the property, Cristol ruled in the homeowner's favor and allowed the mortgage modification.

    For "bankruptcy purposes the inquiry is not whether the property is the debtor's primary residence," Cristol wrote.

    "Rather the inquiry is whether the property is solely the borrower's primary residence. Where the borrower resides in one unit and rents out the other unit of a duplex, the property is not solely the borrower's primary residence and as such the mortgage is subject to modification."

    The question was whether lender Lansdowne Mortgage LLC expected Ramirez to occupy the full two-unit building.

    Landsdowne argued it did. Its attorneys at Herron Ortiz in Miami objected to Ramirez's third amended Chapter 13 bankruptcy plan that proposed monthly payments of $718 plus interest and a final balloon payment of interest and $66,094 in the 60th month. The mortgage company rejected the proposal, saying it feared Ramirez would renege on the new terms in the 59th month.

    In its proof of claim for a first priority residential mortgage at a Jan. 29 evidentiary hearing, the lender told the court it viewed the mortgage transaction as "providing the borrower with a residence."

    But Ramirez's attorneys disagreed.

    "There are extensive examples throughout the case law that say you can modify the mortgage with a duplex because it's not solely the borrower's primary residence,"(2) Ledon said. "In most cases a single borrower can't occupy both units."

    For Cristol, an omission in the mortgage documents was a key factor in deciding whether the anti-modification provision applied.

    "The creditor responds that the mortgage does not actually contain a borrower-occupancy provision and suggests the rider was simply an error," Cristol wrote.

    The Legal Services attorneys argued the error was on Landowne's part because the lender drew up the contract. And in the end, that omission cost the Miami mortgage company about $200,000.

    In his ruling, Cristol permitted the cramdown, ordering Landsdowne to refinance the property and reduce the debt to $100,000—based on the lender's appraisal of the house—down from $297,087. Ramirez now has five years to repay the loan.

    "The court further finds that to the extent any ambiguity exists as to the applicability of the rider deleting the borrower-occupancy provision, such ambiguity is construed against the creditor as drafter of the mortgage contract," Cristol wrote.

    After the housing crash, Cristol supported a change in bankruptcy law that would have allowed judges to reduce the principal on first mortgages on single-family homes, something that was possible until 1979. Bankruptcy judges already have the power to cut second mortgages and credit card debt. The legislation failed.
For the story, see Lender's Mistake Costly, Leads To $200,000 Mortgage Reduction.

For the court order, see In re Ramirez - Order Confirming Chapter 13 Plan.

Go here for In re Ramirez - Debtor's Response To Creditor Objection To Confirmation.

(1) Legal Services of Greater Miami Inc. is the largest provider of broad-based civil legal services for the poor in Miami-Dade and Monroe Counties in Florida. Each year it provides free civil legal services which benefit more than 30,000 members of the community who have nowhere else to turn for help- women, children, seniors, veterans returning from combat, people with disabilities, low wage workers and the homeless who have problems in the areas of tenants’ rights, homeownership, health, income maintenance, employment, special education, tax and consumer rights, according to its website.

(2) In its order, the court noted:

  • As a preliminary matter, the Court notes that the cases permitting modification of residential mortgages secured by multiunit-properties are legion. In re Zaldivar, 441 B.R. 389, 390 (Bankr. S.D. Fla. 2011) (collecting cases). A totality of the circumstances test, analyzing the facts of each case, is used to determine whether a cramdown is permissible. Id. Specifically, the Court looks to the predominant character of the mortgage transaction: [...].

Tuesday, April 08, 2014

Unwitting Real Estate Owners Get Roped Into Co-Owner's Bankruptcy Proceeding As Chapter 7 Trustee Seeks Court Approval For Sale Of Entire Jointly-Owned Property (As Opposed To Just Debtor's Interest)

From a recent post from by attorney Vicki R. Harding, Esq.:
  • A chapter 7 debtor owned real estate jointly with three other people as tenants in common. The chapter 7 trustee sought court approval to sell the entire property, as opposed to just the debtor’s tenant in common interest.

    The debtor and his wife listed a 50% interest in real estate described as “125.8 acres rough land” in their bankruptcy schedules. The chapter 7 trustee and the debtors settled a dispute regarding claimed exemptions in the property and agreed to liquidate the non-exempt portion for the benefit of the estate.

    Section 363(h) of the Bankruptcy Code provides that if a bankruptcy estate has an undivided interest in property as a tenant in common, the trustee can sell the interests of both the estate and any co‑owner if (and only if):
(1) partition in kind of such property among the estate and such co-owners is impracticable;

(2) sale of the estate’s undivided interest in such property would realize significantly less for the estate than sale of such property free of the interests of such co‑owners;

(3) the benefit to the estate of a sale of such property free of the interests of co‑owners outweighs the detriment, if any, to such co-owners; and

(4) such property is not used in the production, transmission, or distribution, for sale, of electric energy or of natural or synthetic gas for heat, light, or power.

In this case two of the three other co‑owners consented to a sale and stipulated that the trustee was entitled to sell the entire property pursuant to Section 363(h). However, the remaining co‑owner (Simons) objected.

The trustee and Simons stipulated to various facts and agreed that “the only issue remaining under §363(h) is whether the Real Property is capable of partition or must be sold as a whole.” However, the court took issue with this characterization of the issue. In particular, it pointed out that if the trustee did not prevail, the result would not be to partition and sell the property, but rather the trustee’s request would be denied, leaving him with the right to sell the debtor’s undivided interest as a tenant in common.

The court decided that the parties had stipulated that factors 3 and 4 were met. Although their characterization of the question suggested that they were focusing only on factor 1, the court felt compelled to consider both factors 1 and 2 since it was not entirely clear what they intended.

On the issue of whether partition was “impracticable”:

[P]racticable is not a synonym for possible; nor is it a synonym for practical. Its meaning falls between the two concepts of possibility and practicality, and incorporates both ideas – something that is not only possible, but also feasible and sensible.

The trustee had the burden of proof, and his only witness clearly did not impress the court. The witness described the property as “rough, rock, and hilly land with no improvements.” According to him, the property could not be divided without affecting his estimated value. However, he gave no indication of the reduction in value nor the basis for these conclusions. (Apparently his testimony was based on a “drive-by” of the property, and he neither walked the property nor had any knowledge of the topography other than a brief view from an adjacent property and a review of an aerial map.)

In response, Simons testified as a fact witness that the property had been in her family for several generations, its only value was timber, and an old logging road evenly divided the property that would allow for a fair partition. The court determined that the trustee did not establish that partition was impracticable.

Considering the issue of whether a sale of an undivided interest would bring significantly less than a sale of the entire property, there was very little information to consider. The range of the only values available in the record led to a maximum difference of ~$6,500. The court concluded that the record did not contain proof that a sale of the tenant in common interest would bring significantly less, nor did the small change in value support a finding that partition was impracticable.

A more interesting argument was the trustee’s attempt to use a state statutory presumption of indivisibility. Although bankruptcy courts frequently look to state law to decide issues, in this case the court held that the question of whether a partition was practicable was a matter of federal and not state law.

The court further commented that it appeared the parties agreed that either the property should be sold as a whole or it should be partitioned. However, partitioning property is not an option under Section 363(h): the trustee either sells all of the interests in the property as provided in Section 363(h), or sells only the debtor’s undivided interest. Notwithstanding the desire of the parties, the court’s judgment was simply that the trustee failed to prove that the elements of Section 363(h) were met, and consequently he was not entitled to sell the property free of Simons’ interest.

The court’s decision to apply federal law to determine whether partition was practicable, while leaving the partition process to state law, could lead to a catch-22 where a trustee is not able to sell all of the co-owners’ interests based on federal law, but also is not able to partition the property under state law.

A co‑owner that is not familiar with bankruptcy would likely be surprised that the bankruptcy court can order the sale of its interests as well as the debtor’s interests. However, it is worth noting that a trustee (or debtor in possession) does not automatically have that right.

Source: Potential Sale of Jointly Owned Property: Practicable Partition Is Somewhere Between Possible and Practical.

For the court ruling, see Higgason v. Brown (In re Brown), 506 B.R. 446 (Bankr. E.D. Ky. 2014).