Two Fraud Investigators Charged With Mortgage Fraud
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Welcome to The Home Equity Theft Reporter, a blog dedicated to informing the consumer public and the legal profession about Home Equity Theft issues. This blog will consist of information describing the various forms of Home Equity Theft and links to news reports & other informational sources from throughout the country about the victims of Home Equity Theft and what government authorities and others are doing about it.
While I'm sure that there may be real estate lawyers who "say" this, readers of this blog and savvy consumer protection and real estate attorneys know that, when invoking the "equitable mortgage" doctrine in order to treat a foreclosure rescue arrangement simply as a secured (& possibly usurious) loan, courts are not limited to reviewing the written documents. They are to listen to the testimony of the parties and look to all of the surrounding facts and circumstances when determining whether a deed transfer with a simultaneous lease back / buy back arrangement is an equitable mortgage.
(Florida has codified the equitable mortgage doctrine at Chapter 697.01 of the Florida Statutes.)
Further, in a prior blog post, I referred to the recent Florida appellate court case, Guest v. Claycomb, 932 So. 2d 567 (Fla. App. Ct. 5th Dist., 2006), which reminds us that Florida courts (and I'm sure non-Florida courts as well) have long held that when someone brings legal action in a case involving a written contract and specifically requests some form of "equitable relief", the court will not limit their review solely to the written documents. They are duty bound to listen to and consider the oral testimony of all witnesses in the transaction as well as to look to all of the surrounding facts and circumstances in determining what actually happened (unfortunately for the homeowner in this case, the trial judge apparently disregarded this legal principle and ruled incorrectly against him; fortunately for the homeowner, however, he had an attorney who was prepared to appeal the incorrect decision to a state appeals court which did, in fact, reverse the lower court decision).
To read the entire Sun-Sentinel article by Ian Katz, see:
Facing foreclosure? Beware of 'rescue firms' offering to help you
Click here for the prior post referencing Guest v. Claycomb.
Click here for a prior post of a foreclosure rescue operator who violated Federal Truth In Lending and state usury law.
Click here to search for other blog posts on equitable mortgages on this blog.
(revised 1-26-07)
See related article reported by the Arizona Daily Star at azstarnet.com:
(revised 1-23-07, 6:46 a.m.)
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(revised 8-11-07)
Attorney Marvin Bagwell, Esq., of United General Title Insurance Company (a subsidiary of First American Title Insurance Company) has written this Title Advisory on the NYS Home Equity Theft Prevention Act (made available online by Benchmark Title Agency, LLC).
This article offers a brief discussion of four features that have an immediate impact on title insurance underwriters doing business in New York. The article is written for industry professionals, so if you are in the title insurance industry or legal counsel for mortgage lenders doing business in New York, you might find this information helpful.To obtain a copy of the New York Home Equity Theft Prevention Act, please refer to my January 4, 2007 post and my January 12, 2007 post.
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To read the entire story (which is loaded with details) and is Part 2 of a South Bend Tribune story I posted on yesterday, see:
Whistle-blower backs alleged victims' claims of mortgage fraud, reported at SouthBendTribune.com.
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