Saturday, December 18, 2010

Residents In Waterfront Townhouse Complex Forced To Flee From Homes After 'Rogue' Canal Swallows Up Backyard

In Sunrise, Florida, the South Florida Sun Sentinel reports:
  • The bizarre collapse of a canal bank in Sunrise forced the evacuation of a strip of townhouses, as residents scrambled into their clothes and hustled their children onto the sidewalk for safety.

  • No one knows yet what caused the accident Thursday night, which swallowed the backyards of several homes in the Spring Tree Cove West complex just north of Oakland Park Boulevard.

  • Engineers from the homeowners' insurance companies were on the scene Friday, walking along the jagged, muddy cliff that reached within a foot or two from the townhouses' back doors.


  • Six units were evacuated, and bright orange unsafe structure stickers were placed on the doors. A seventh unit is vacant. Lawn decorations of Santa, Christmas trees and snowmen stood behind yellow police tape. On Friday afternoon, as a police officer stood by, residents were allowed back into their homes to retrieve perishables, valuables and personal belongings.


  • Although sinkholes are rare in Broward, Miami-Dade and Palm Beach counties, where the limestone layer is thin, their numbers have been growing. [...] Palm Beach County did not have enough claims to be listed separately. [...] Sinkholes are abundant in the state's "sinkhole belt" of Hernando, Pasco and Hillsborough counties, where thicker limestone can form major sinkholes and where insurers have paid hundreds of millions of dollars for sinkhole damage.


  • [Resident Alan] Lueck, the man who saw the bank collapse, said he had alerted the city about a year and a half ago to a hole that had appeared in his backyard and led down to the canal. A city inspector came out and told him not to worry about it, he said, so he filled it in and forgot about it, until Thursday night.

For the story, see Sunrise condo residents displaced after backyards fall into canal.

Recently Defeated In Election, Consumer-Friendly Ohio AG To Take Battle Against Financial Fraud National

In Columbus, Ohio, The Colombus Dispatch reports:
  • Outgoing Ohio Attorney General Richard Cordray has a new federal job lined up, but he still has his eye on a statewide office - most likely governor - in 2014. Cordray confirmed [] that he has been appointed enforcement watchdog for the new U.S. Consumer Financial Protection Bureau, an agency under the umbrella of the Federal Reserve System.

  • "It gives me the opportunity to work on a 50-state basis on the issues that are near and dear to my heart in the state of Ohio," Cordray said. He will be the chief enforcer over a broad range of consumer issues, including mortgages, credit cards, student loans and nonbanking financial activities.


  • Cordray, 51, a Democrat, lost his re-election bid last month to Republican Mike DeWine, a former U.S. senator and lieutenant governor. [...] In his two years as attorney general, Cordray was zealous in pursuing fraudulent mortgage and foreclosure practices. He went after GMAC Mortgage; its parent, Ally Financial Inc.; American International Group; and Bank of America Corp.

For more, see Cordray headed to Washington.

City Gives 40+ South Beach Tenants The Boot; Safety Issues Lead To 3-Day Notice To Vacate Shaky Structure, Leaving Residents Homeless For The Holidays

In Miami Beach, Florida, WPLG-TV Channel 10 reports:
  • Dozens of residents in Miami Beach were forced to move out by Thursday because of safety concerns at their apartment building. Repairs have been under way at the building on Fifth Street and Meridian Avenue for the past eight months. But the work was not finished in time, forcing the more than 40 residents who live there to move. Residents said they received notice Monday that they must move out by Thursday.

  • "I paid my rent, and two days later, I find out the building is going to be closed down and I've got to pack up everything I own to try to find a place," said 64-year-old resident Richard Main. The three-story building has been plagued by shoddy repair work and several code violations, including a subpar fire safety system and a deteriorating structure that officials said needs an engineer's assessment.


  • Eula Imperato is disabled and on a fixed income. She said she cannot just pick up and move away on such short notice. "I can't walk well. I lose my balance, so I have to use a wheelchair," Imperato said. "I don't know what I'll do if I don't find a place." Without the luxury of time, the residents, most of whom are senior citizens, are not sure where they will spend the holidays. "Without money, I'm homeless on the streets," Main said.

  • City officials said it is the building owner's responsibility to relocate the residents. The owner has told the city that will be done by Thursday, but if that does not happen, the city will arrange for temporary housing for the residents and bill the building owner.

For the story, see Citing Safety Concerns, City Forces Residents Out Of Apt. Bldg. (City Agreed To Provide Families With Housing For One Week).

Stroke-Stricken Mom To Lose Family Home After Convicted Thief/Son Scammed Her In $137K Ripoff, Stiffing Bank On House Payments

In Spokane, Washington, KXLY-TV Channel 4 reports:
  • A South Hill woman is about to lose her home to foreclosure because her son looted her life savings to feed his gambling addiction. Mary Jo English developed some health problems a couple of years ago and so her oldest son Mark assumed command of her finances including mailing the mortgage payments on her home.

  • However Mark never sent those checks because that would have limited the amount of money available for him to steal from his own mother. “We have to find some place to live within two weeks and I just don't know how that's going to happen,” Mary Jo English said.


  • It started with the pair of strokes that has left Mary Jo English's speech slurred. Her son used her illness to assume command of her finances. Police say he stole $137,000 of his mom’s money and lost it to the casinos.


  • Mary Jo didn't know she was behind on her house payments because Mark had redirected all of her mail to a post office box. Now her other son Daniel is struggling to raise the $21,000 Mary Jo needs to stop the foreclosure. “I’m hoping somehow to get the banks to give her her money back to replenish the money back into her account so she can pay back the money in arrears and to keep her house,” Daniel said.

  • Mark English was convicted of theft last month and ordered to make restitution to his mother but the money won't come soon enough to save his mom’s home.

For more, see Woman Loses Savings To Son's Gambling Habit.

Town Blocks Sale Of Flood-Prone, Nearly Uninhabitable Home; Says It Can't Afford R/E Tax Revenue Loss If State Converts Premises To Public Green Space

In Hillsdale, New Jersey, The Record reports:
  • The borough is refusing to allow a homeowner to sell a property that chronically floods to the state for public green space. Rosanne Vaccaro was accepted into a state program that buys properties in flood-prone areas, but she needs the borough's approval to complete the transaction. Mayor Max Arnowitz is blocking the deal, arguing that the borough can't afford to lose precious tax revenue.

  • Vaccaro pays almost $7,000 in annual property taxes on the home, which is valued at $355,000. After Hurricane Floyd hit in 1999, she said the house — located near the Pascack Brook — became nearly uninhabitable.

  • She has petitioned her state legislators, who have contacted Arnowitz on her behalf, but he refuses to budge. "It is amazing that I am still expected to pay property taxes on a house that is uninhabitable and give good money to a community that doesn't value me as a citizen," said Vaccaro, who moved to London six months ago after getting married. "Frankly, I feel persecuted, but for what I am not sure."

For more, see Hillsdale blocks home from being sold into flood program.

NYC Feds File Civil Suit Charging Rockland County Landlord Of 96-Unit Complex With Discriminatory Practices Targeting African-Americans

From the Office of the U.S. Attorney (NYC/Manhattan):
  • PREET BHARARA, the United States Attorney for the Southern District of New York, announced [] that the United States has filed a federal civil rights lawsuit under the Fair Housing Act against BURGUNDY GARDENS, LLC, for discriminating against African-Americans seeking to rent apartments at Burgundy Gardens Apartments, located in Valley Cottage, Rockland County, New York.


  • Burgundy Gardens Apartments is a residential complex consisting of approximately 96 rental apartment units. [...] Specifically, the United States alleges that Burgundy Gardens has engaged in racially discriminatory housing practices, including failing to inform African-American prospective tenants about available apartments, or telling African-Americans that certain apartments are not available, while telling non-African-American persons that such apartments were in fact available.

  • In addition, the Complaint alleges that Burgundy Gardens told African-American prospective tenants that the prices for rental apartments were higher than the prices quoted to non African-American persons. The United States further alleges that Burgundy Gardens failed to show African-American prospective tenants available apartments, while at the same time showing similarly situated non-African-American persons available apartments.

For the U.S. Attorney press release, see Manhattan U.S. Attorney Files Civil Rights Suit Against Rockland County Landlord For Discrimination Against African-American Prospective Tenants.

BofA Looks To Unload At Least $1B In Crappy Paper; Lender/Servicer May Be Tiring Of Continued Hammering To Public Image

The New York Post reports:
  • Bank of America, the country's No. 1 mortgage lender, battling to fix or get out of more than 1 million past due home loans, has put at least $1 billion of the toxic paper on the block, The Post has learned.

  • Buyers for the loans, which BofA has already written off, are circling. Bids are due by the end of December, sources said. The sale of the block of mortgage assets, which includes loans and mortage-servicing rights, seems to signal that Chief Executive Brian Moynihan, who has said he will battle to clean up the mess, thinks the best way out is through a sale.


  • Moynihan's move may be prompted by upcoming regulations that would force the bank to set aside more reserves for risky assets. [...] BofA also wants to improve its public image by not being in the news for foreclosing on homeowners.

For the story, see Bank of America to sell $1B in toxic paper.

The Screw-Ups Continue At BofA; Servicer Sends Notices Of Tax Delinquency To 1,100 Borrowers Who'd Actually Paid Their Taxes

In Clark County, Washington, The Columbian reports:
  • A letter sent to hundreds of Bank of America’s mortgage borrowers in Clark County contained news no one wants to hear: Your home could be foreclosed for nonpayment of property taxes. The letter from a Bank of America affiliate was sent to about 1,100 Clark County homeowners who’d actually paid their taxes.(1)

  • Homeowners were quick to take action. Clerks at the Clark County Treasurer’s office fielded hundreds of queries last week from worried homeowners, said Michelle Denman, the office’s tax service manager.

  • A Bank of America official acknowledged the mixup Monday, saying the bank had requested tax payment status reports on Bank of America mortgage-holders before the final payments were due. Many people do not pay taxes until close to the due date.

  • We sincerely apologize to those customers who received the letter in error,” said [the frequently apologetic] Jumana Bauwens, spokesperson for Bank of America Home Loans.

For more, see Bank of America’s tax letter misses its mark (Bank said payments for 1,100 homes were late — before due date).

(1) Reportedly, the letter offers a toll-free number for property owners to call if they are unable to pay the taxes, and a final section, with additional website and phone contact information, falls under the heading “THANK YOU FOR YOUR BUSINESS.”

West Virginia State Bar Disciplinary Board Stiffs Low, Middle Income Pro Se Litigants With New "Ghostwriting" Rule

In Charleston, West Virginia, The West Virginia Record reports:
  • The [West Virginia] State Bar's Lawyer Disciplinary Board recently ruled that attorneys no longer can offer behind-the-scenes legal help to people [representing themselves in court proceedings].

  • The new "ghostwriting"(1) rule seemingly will force many people to either hire an attorney or receive no legal assistance at all when they go before the court. In short, a lawyer must either be in a case all the way or not at all. "While the board finds that ghostwriting as a form of undisclosed representation is permissible under the Rules of Professional conduct, the attorney must disclose his or her identity when preparing pleadings and other documents filed with a tribunal," Board Chairman David A. Jividen wrote in his Nov. 8 opinion.(2)


  • The West Virginia Access to Justice Commission(3) voiced displeasure with the opinion. The opinion "will damage the ability of many low- and middle-income West Virginians to obtain access to justice in West Virginia," wrote Chairman Robert S. Baker in a June 9 letter to the LDB.

  • He said it "places unusually strong limitations on the practice of ghostwriting." "At a time when the American Bar Association and many state bars have voiced support for ghostwriting, the West Virginia Lawyer Disciplinary Board now seeks effectively to do away with the practice. This will injure both pro se litigants and our courts that serve substantial numbers of pro se litigants."

  • Baker said that changing economic times have brought "a sea change" in how people seek access to justice. "A litigant with limited means would rather obtain some help than none at all, and courts would rather pro se litigants have some attorney assistance than none at all. Unbundled representation is especially important in West Virginia Family Court, where estimates are that in about 75 percent of the cases both parties are appearing pro se."

  • Baker says West Virginians deserve better than to be lost without help in a legal system they often don't understand. "When the most important parts of pro se litigants' lives are at stake, attorneys can do better than leave them out in the cold," Baker wrote. He said alternatives exist.

  • "The ability to ghostwrite documents that do not result in an appearance by the attorney is essential to give litigants a guiding light through a confusing legal system," Baker wrote.

For the story, see State Bar board cracks down on ghostwriting.

(1) The story decribes "ghostwriting" as the authoring of a legal document for another who appears to be the actual author, and can include preparing pleadings or other documents filed with a court or preparing letters or other documents on behalf of a client.

(2) The opinion does say that attorneys don't need to disclose their identities if a letter or document is not intended to be filed with a court or "authorship is not otherwise required by law," the story states. Also, helping a client prepare forms adopted by or used by courts and government agencies does not require disclosure, according to the story.

(3) The West Virginia Access to Justice Commission addresses barriers to justice faced by moderate and low income West Virginians.

Friday, December 17, 2010

"We Will Put People In Jail!" Vows Iowa AG Referring To Ongoing Robosigner Probe

Reuters reports:
  • Iowa's attorney general, who is leading a nationwide probe of questionable home foreclosures, met with struggling homeowners on Tuesday and said he may bring criminal charges in his state.

  • "We will put people in jail," Iowa Attorney General Tom Miller said, referring to cases in his state he plans to prosecute with the U.S. Attorney in southern Iowa.

  • A public furor erupted in September over whether banks cut corners in the foreclosure process, using so-called "robo-signers" of legal documents to justify taking homes. Miller heads up the multi-state foreclosure probe comprised of all 50 state attorneys general. They have met with leading U.S. mortgage servicers to discuss a settlement over allegations related to shoddy foreclosure paperwork, which some homeowners say have resulted in illegal evictions.

For more, see Iowa may bring criminal charges in foreclosures scandal.

Duo Forks Over $25K In Upfront Restitution For Conditional 'Buyout' Of Convictions For Running Illegal Loan Mod Operation

In Livingston County, Michigan, the Daily Press & Argus reports:
  • Two women accused of illegally charging an estimated 15 customers money upfront for loan modification services were ordered Tuesday to complete community service and probation under a delayed sentence.


  • Michelle Rene Garbuschewski and Lisa Marie Joboulian both pleaded guilty in November to one count of violating the Credit Services Protection Act in exchange for the state attorney general's office dismissing a second identical count for illegally charging homeowners facing foreclosure upfront fees for mortgage-modification assistance.


  • Garbuschewski, of Howell, and Joboulian, of Northville, were each given an 11-month delayed sentence that will leave both with no conviction if they successfully complete probation during that time frame. They also were ordered to serve 10 hours of community service.


  • The plea deal calls for both women to pay a total of $40,000 in restitution to an estimated 15 victims even though only two victims are identified in the charges. On Tuesday, [District Judge Theresa] Brennan ordered $25,000 in restitution, which was paid Tuesday and will repay seven victims. The judge set a Jan. 14 hearing date to determine the amount, if any, of additional restitution to other victims, according to court records.

For the story, see Women accused of illegal service charges get probation, community service.

Lawsuit: Title Company Ruined Texas Home Seller's Credit By Failing To Pay Off Existing Mortgage From Escrow Funds

In Jefferson County, Texas, The Southeast Texas Record reports:
  • A Jefferson County man claims his credit score was ruined after a title company failed to pay off a loan after he sold his home. Ronald Carlin filed a lawsuit Dec. 2 in Jefferson County District Court against Stewart Title Guaranty Co.

  • Carlin claims he hired Stewart Title to handle the transaction after he sold his home on Dawn Drive in Beaumont. "As part of the transaction, the Defendant was to pay any outstanding monies owed to Progressive Financial Services, the lender holding the mortgage on 5130 Dawn Drive at the time of the sale," the suit states. "Defendant has never paid off the Progressive Financial Services loan."

  • As a result of Stewart's failure to pay off the loan, Carlin suffered damage to his credit score and suffered mental anguish, the complaint says. In his complaint, Carlin alleges negligence and negligent misrepresentation, breach of fiduciary duty and breach of contract against the defendant.

Source: Beaumont man sues title company for ruining credit.

Colorado Homeowner Files Federal Suit Challenging Constitutionality Of State's Foreclosure Process & Law

In Denver, Colorado, The Denver Post reports:
  • Denver attorney John Prater sued the state of Colorado in federal court Friday, alleging that it is allowing lenders to seize properties without the due process required under the U.S. Constitution. "Colorado's foreclosure process and law are unconstitutional," said Andrew O'Connor with the Prater Legal Offices.

  • He said borrowers aren't getting a fair hearing under the state's current system of public trustees and limited "Rule 120" court hearings. Prater is fighting a foreclosure on his Douglas County home and filed a federal lawsuit after failing to get the hearing he wanted in state courts.

  • Under Colorado's current system, lenders can foreclose even if a fraudulent origination contributed to the delinquency. They can foreclose even while promising a loan modification that never gets fulfilled. And they can foreclose without ever providing proof before a judge that they have clear legal standing to do so, O'Connor said.

  • He said Colorado serves a lender's interest by having judges in Rule 120 hearings address only two issues: Is a borrower in the active military, which allows special consideration, or are they delinquent?

For more, see State's foreclosure rules challenged (Borrowers say they don't get a fair hearing from public trustees and limited court hearings).

Thursday, December 16, 2010

Philly Feds Continue Attack On Equity Stripping Sale Leaseback Peddlers; Indict 4, File Civil Suit In Alleged Racket Involving 120 Properties

In Philadelphia, Pennsylvania, the Philadelphia Inquirer reports:
  • The U.S. Attorney's Office in Philadelphia filed criminal charges Tuesday against the operator of a local mortgage foreclosure rescue scheme involving $31 million in fraudulent loans on 120 properties.

  • Anthony J. DeMarco III offered to buy the houses of people facing foreclosure, allowing victims to stay in the houses and pay rent until they recovered financially and could buy the house back, the government said. In reality, the indictment alleged, DeMarco's real estate companies, DeMarco REI Inc. in Philadelphia and OPM Group L.L.C. in King of Prussia, lined up straw buyers for the houses, used fraudulent documents to obtain mortgage loans, and stole $11 million in the process.

  • Authorities arrested DeMarco, 31, of Conshohocken, on Tuesday. He is being held pending a detention hearing Friday. His attorney, Chris Warren, did not return a call seeking comment. A call to DeMarco's residence in Conshohocken before the arrest was not returned.


  • In what it called a novel move, the U.S. Attorney's Office on Tuesday asked U.S. District Judge Michael M. Baylson for broad relief that would stop evictions and foreclosures related to DeMarco's companies.(1)

  • Robert P. Cocco, a Philadelphia consumer lawyer who has several cases pending against DeMarco, welcomed that effort. "It helps save the victimized homeowner the emotional and financial burden of foreclosure defense or stay of sheriff sale," he said.

  • Also charged in the 15-count indictment were DeMarco REI employees Michael R. Roberts and Eric Boscove, as well as Sean Ryan, a title agent at Settlement Engine Inc. of Pittsburgh. Ryan allegedly played a vital role in the scheme by helping to make fake the down payments needed for the loans. Charges include conspiracy, mail fraud, bank fraud, and money laundering. Only Ryan could be reached Tuesday. Contacted at his work number, he said: "No comment."

Source: U.S. charges local foreclosure-rescue operator with fraud.

For the U.S. Attorney (Philadelphia) press release, see Charges & Civil Complaint Filed In Foreclosure Rescue Scheme (Civil Complaint Seeks Help For Scam Victims Facing Foreclosure).

For the charges brought in this criminal/civil, 'dual' prosecution, see:

See Criminal Prosecutions Of Sale Leaseback Peddlers In Equity Stripping Foreclosure Rescue Deals for other incidents that led to criminal prosecutions in sale leaseback deals.

(1) The novel move here is that, in addition to bringing the criminal indictment against the four suspects, the U.S. Attorney's Office has also filed a civil lawsuit against DeMarco and his two companies in an attempt to, according to the civil complaint (see U.S. v. DeMarco REI, Inc., et al, at paragraph 5):

  • "seek[] relief that will extend beyond the parties to reach the homeowners, the "straw" purchasers, and the mortgage lenders. One purpose of the action is to bring all the individuals and entities that have a stake in the properties before the Court to create an orderly process by which the damage caused by the defendants' fraud can be mitigated. That process, sanctioned by the applicable statutes, will mean that non-party, non-defendants should be enjoined from engaging in any transactions that will affect the properties at issue here."

Media Attention Continues On Use Of False Attorney Signatures On Foreclosure Documents

ProPublica reports:
  • Many foreclosures have been thrown into question because of flawed documentation such as inaccurate affidavits describing a mortgage's history. But three recent court cases point to another type of flaw in foreclosure filings that could place thousands more cases in doubt: false attorney signatures on court documents.



  • In October, the Baltimore Sun reported that lawyers from two Maryland firms that handle foreclosures acknowledged that they had not in fact signed many affidavits filed with their signatures and had submitted "corrective affidavits" to try to remedy the problem. The two lawyers, who have reportedly filed more than 20,000 foreclosure cases in Maryland since 2008, told the Sun that they had reviewed the content of all their affidavits although they did not always sign them themselves.


For more, see False Attorney Signatures Cast New Doubts on Foreclosures.

Boston Retiree Faces The Boot From Family Home Of 50+ Years After Being Victimized In $500K+ Home Equity Ripoff

In Boston, Massachusetts, The Boston Herald reports:
  • Nancy Henry could be spending Christmas out on the street. In what her attorney called a mortgage swindle, the 76-year-old retired accountant is facing foreclosure of the two-bedroom row house in Cambridge that has been her family home for more than 50 years.

  • "I’m supposed to be out by Dec. 15, but I don’t know where I would go,” said Henry, who lives in the home with her adult son. “I’m praying something can be worked out at the last minute, so I can stay put.”

  • Todd Kaplan, an attorney with Greater Boston Legal Services,(1) said Henry was the victim of a complicated scheme to deprive her of the home and take more than $500,000 of equity from the property that was never repaid, forcing the foreclosure. “Miss Henry was the victim of a scam to deed over her house,” Kaplan said. “She is facing eviction and holding on by her fingernails.”

  • Henry said the scammer promised to sell the home for her and use the proceeds to purchase a ranch-style house where she could live on one floor. Instead, she said, the man sold the home - which has an assessed value of $443,000 - for $228,000 in 2007 to a “straw buyer” and “flipped” the property six months later for $580,000. The new “owner,”, with Henry still living in the home, took nearly $500,000 out in home-equity loans that were never repaid.

  • City Life/Vida Urbana, a Boston anti-poverty agency, organized a “stop the foreclosure vigil” at Henry’s home last night. They argue that the mortgage holder, Provident Funding Associates, should stop the eviction while any one of several solutions is explored. They want Provident to agree to sell the house to a Cambridge nonprofit as an affordable home or rental. Sarah Billeri, the attorney representing Provident Funding Associates at Harmon Law Offices, did not return a call seeking comment.

Source: Homeowner to be on street after alleged scam.

See also Cambridge resident says she was scammed into foreclosure.

(1) Greater Boston Legal Services provides free civil (non-criminal) legal assistance to low-income people in Boston and thirty-one additional cities and towns, ranging from legal advice to full case representation, depending on client need.

"I Lost My House. I Lost Everything" Says Widow After Underwriter Allegedly Stiffed Her Of $250K Payout From Deceased Hubby's Life Insurance Policy

In Southern California, the Los Angeles Times reports:
  • American General Life Insurance Co. markets its policies as protection for "the hopes and dreams of American families" — a promise Ian Weissberger took to heart during his losing battle with Lou Gehrig's disease.

  • But after the Cathedral City mortgage broker died in 2005, American General cancelled his life insurance policy and refused to pay his widow the $250,000 benefit. The Weissbergers' premiums were paid up. There was no foul play suspected. There was no question Sheila Weissberger was the widow and sole beneficiary. And Ian's illness was diagnosed months after he took out the policy.

  • The problem, the insurer told Sheila Weissberger, was that Ian's application for coverage was incomplete. American General concluded that he had failed to disclose conditions, including bipolar disorder and pulmonary disease, that, according to his doctors, he did not have.

  • For the company, which collected $2.3 billion in premiums last year, the amount at issue was minute. But it was no small matter for Sheila, 62, who reached a confidential financial settlement with American General earlier this year.

  • "I lost my house. I lost everything," she said in an interview. "It was very, very devastating."(1)

For more, see Flaws can cancel life insurance — after death (If a policy is less than 2 years old, companies may dispute the claim, and thousands were denied last year).

(1) According to the story, most states long ago banned limitless rescissions to stop abuses by insurers, but in California and elsewhere, they are allowed during the two years immediately after a policy is signed. Experts and consumer advocates say some insurers have turned that into a "gotcha period," seizing on flaws after claims are made that they could have looked for before issuing coverage, the story states.

Wednesday, December 15, 2010

Couple Holding Purchase Money Note & Mortgage Left Holding The Bag After Unwittingly Signing Negligently-Prepared Satisfaction By Closing Agent

A Florida appeals court recently let a closing agent off the hook for any potential damages caused by negilgently preparing a satisfaction of mortgage and getting the unwitting couple holding the promisssory note secured by said mortgage to sign the satisfaction.

The Court said that, because the unwitting couple "never intended to extinguish [the debtor/maker's] obligations under the note, the mistaken satisfaction of the mortgage is subject to rescission and reformation and thus the [unwitting couple] never lost the ability to collect on the note."

Accordingly, because the unwitting couple never lost the ability to collect from the debtor/maker on the note, they failed to establish injury or damage proximately caused by the closing agent's screw-up, an essential element in supporting a negligence claim against the agent.(1)

I guess the court is telling the unwitting couple that their legal gripe is primarily with the guy who owes them the money, and not the closing agent who screwed up the paperwork.(2)

For the ruling, see All Real Estate Title Services, Inc. v. Vuu, Case No. 2D09-1196 (Fla. App. 2d DCA, November 17, 2010).

(1) In reaching its conclusion, the Florida appeals court found as follows (and essentially makes the legal case that the unwitting couple should have made against the debtor/maker obligated on the promissory note; bold text is my emphasis, not in the original text):
  • Cancellation or renunciation of a promissory note and release of security is ineffective if it is unintentional or procured by mistake. Gover v. Home & City Sav. Bank, 574 So. 2d 306 (Fla. 1st DCA 1991); see also § 673.6041, Fla. Stat. (2001). A court may apply equitable principles to reverse the cancellation of a mortgage satisfaction when that satisfaction is the result of mistake or inadvertence. United Serv. Corp. v. Vi-An Constr. Corp., 77 So. 2d 800, 803 (Fla. 1955); First Family Mortg. Corp. of Fla. v. White, 549 So. 2d 1049, 1050 (Fla. 3d DCA 1989). Thus, the Vuus' unintentional renunciation of the note by way of the mistaken satisfaction of mortgage did not, and could not, have extinguished their rights under the note.

    To support a negligence claim, the Vuus were required to show (a) the existence of a duty recognized by law requiring Boyd and All Real Estate to conform to a certain standard of conduct for the protection of others, including the Vuus; (b) a failure on the part of Boyd and All Real Estate to perform the duty; and (c) injury or damage proximately caused by such failure. See Lisanti v. City of Port Richey, 787 So. 2d 36, 37 (Fla. 2d DCA 2001); Landrum v. John Doe Pit Digger, 696 So. 2d 926, 928 (Fla. 2d DCA 1997). Because the Vuus' right to recover under the note has not been extinguished, they have failed to carry their burden of showing that they have suffered any injury from the preparation of the satisfaction of the mortgage.

    Accordingly, we reverse the judgment in favor of the Vuus and remand for the entry of a judgment in favor of Boyd and All Real Estate.

(2) For those wondering if there may have been possible fraud and/or collusion betwween the closing agent and the debtor/maker obligated on the promissory note against the unwitting couple, they were not issues addressed by the ruling; the ruling was silent as to whether the unwitting couple made any allegations with regard thereto.

Indiana Appeals Court: Failure To Comply With HUD Servicing Regulations A Valid Affirmative Defense In Foreclosure Action Involving FHA-Insured Loan

Lexology reports:
  • In a recently-published case of first impression in Indiana, the Court of Appeals of Indiana has held that a lender’s failure to comply with HUD servicing regulations on an FHA-insured loan may be asserted as a valid affirmative defense to a mortgage foreclosure action.

  • In Lacy-McKinney v. Taylor, Bean & Whitaker Mortgage Corp., 2010 Ind. App. LEXIS 2161 (Ind. Ct. App. Nov. 19, 2010), the appellate court reversed the trial court’s grant of summary judgment in favor of the lender, and remanded the matter for further proceedings to resolve the factual dispute over whether HUD’s servicing guidelines had been followed.

  • In reaching its result, the court drew from reported cases in Illinois, New York, Florida, Pennsylvania and New Jersey which essentially conferred third party beneficiary rights on borrowers arising out of the HUD servicing regulations pertinent to FHA-insured loans.(1)

  • It proceeded to hold that as a “condition precedent to foreclosure,” the lender was required to demonstrate its compliance with the HUD regulations regarding acceptance of partial payments (24 CFR § 203.556) and the face-to-face meeting protocols in default situations (24 CFR § 203.604(d)). Having found that a genuine issue of fact existed as to both, the appeals court held that summary judgment for the lender should not have been granted.

Attorney Joseph F. Zielinski of Indiana Legal Services, Inc., South Bend, Indiana, represented the homeowner in this case.(2)

For more, see Indiana Appeals Court allows HUD regulations to be affirmative defense to foreclosure (requires subscription; if no subscription GO HERE, then click appropriate link for the story).

(1) The Indiana appeals court made these observations regarding the out-of state cases:

  • The rationale for allowing noncompliance with HUD servicing responsibilities to be used as an affirmative defense to foreclosure on an HUD-insured mortgage was set forth by the Illinois Appellate Court in Bankers Life Co. v. Denton, 458 N.E.2d 203 (Ill. App. Ct. 1983). There, a mortgagee filed a complaint seeking to foreclose on the Dentons‘ HUD-insured mortgage, which was in default. Denton, 458 N.E.2d at 206. In their answer, the Dentons raised the mortgagee‘s noncompliance with the HUD servicing responsibilities as an affirmative defense. Id. The trial court granted mortgagee‘s motion to strike the Dentons‘ affirmative defense and entered a judgment of foreclosure and sale against the Dentons. The Dentons appealed, contending that they could use noncompliance of HUD regulations as an affirmative defense to the foreclosure.

  • After citing to the applicable mortgage servicing responsibilities, which included the requirement of a face-to-face meeting, the Denton court noted:

    It is evident from the language of the servicing regulations that the mortgagee must comply with these provisions prior to the commencement of a foreclosure proceeding. Therefore, . . . we believe that the failure to comply with these servicing regulations which are mandatory and have the force and effect of law can be raised in a foreclosure proceeding as an affirmative defense.

    While it is true that 24 C.F.R. 203.500 provides that a pattern of refusal or failure to comply with the servicing requirements will be cause for withdrawal of a mortgagee‘s approval to participate in the federal mortgage insurance program, we do not believe this to be an adequate remedy for the individual mortgagor. The legislative purpose of the National Housing Act . . . is to assist in providing a decent home and a suitable living environment for every American family. Thus, the primary beneficiaries of the act and its implementing regulations are those receiving assistance through its various housing programs. This would include the defendant as mortgagors of a H.U.D. insured mortgage.

    Therefore, in order to effectively insure that the interests of the primary beneficiaries of the H.U.D. mortgage servicing requirements are being protected, mortgagors must be allowed to raise noncompliance with the servicing requirements as a defense to a foreclosure action. H.U.D.‘s withdrawal of a mortgagee‘s approval to participate in the mortgage insurance program after repeated violations of the servicing requirements is a useless remedy for the individual faced with the immediate problem of the foreclosure action; an action which could possibly be avoided by . . . further efforts to arrange a revised payment plan

    Id. at 205.


  • Following reasoning similar to that found in Denton, the states of Florida, Maryland, and New York have likewise held that HUD servicing responsibilities may be raised as an affirmative defense in foreclosure actions even though the regulations do not create a private right of action. See Cross v. Fed. Nat’l Mort. Ass’n, 359 So.2d 464 (Fla. Dist. Ct. App. 1978) (mortgagee‘s failure to provide defaulted HUD-insured mortgagor with notice required under mortgage servicing regulations was affirmative defense that precluded summary judgment in favor of mortgagee); Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538,547 (Md. 2007) (mortgagor may not wield HUD regulations as sword but may assert regulatory noncompliance as shield to foreclosure on HUD mortgage); Federal Nat’l Mortg. Ass’n v. Ricks, 372 N.Y.S.2d 485, 497 (N.Y. Sup. Ct. 1975) (mortgagors may interpose as first defense, failure of mortgagee to comply with provisions of HUD Handbook).

  • Some courts have styled a mortgagee‘s noncompliance with HUD regulations as an equitable defense (unclean hands and failure to do equity). See e.g., Heritage Bank, N.A. v. Ruh, 465 A.2d 547 (N.J. Super. Ct. Ch. Div. 1983) (courts may exercise equity power in refusing to grant foreclosures when mortgagees have flagrantly disregarded forbearance or casting); Fleet Real Estate Funding Corp. v. Smith, 530 A.2d 919 (Pa. Super. Ct. 1987) (summary judgment in favor of mortgagee reversed upon finding that court could exercise equity powers to restrict foreclosure by mortgagee who had not followed or applied forbearance provisions of the HUD regulations and Handbook). We find it problematic to treat such noncompliance merely as an equitable remedy. If noncompliance with HUD regulations is merely ―unclean hands,‖ a court may be precluded from requiring compliance in cases where the mortgagor is also deemed to have unclean hands. See Ruh, 465 A.2d at 558 (court of equity, fulfilling reasons and objects for its existence may, in furtherance of natural justice, aid one who is comparatively more innocent). Hence, the equitable approach is limited in its ability to promote a mortgagee‘s compliance with HUD regulations. Instead, we agree with the reasoning of Denton and view the affirmative defense of noncompliance with HUD regulations as the failure of the mortgagee to satisfy a HUD-imposed condition precedent to foreclosure.

  • To hold that compliance with these regulations is not an affirmative defense, as Taylor-Bean suggests, would circumvent the public policy of HUD. The New Jersey Superior Court described this policy as follows:

    Families who receive HUD-insured mortgages do not meet the standards required for conventional mortgages. It would be senseless to create a program to aid families for whom homeownership would otherwise be impossible without promulgating mandatory regulations for HUD-approved mortgagees to insure that objectives of the HUD program are met. Foreseeable obstacles to these families‘ maintaining regular payments, such as temporary illness, unemployment or poor financial management, should be handled with a combination of understanding and efficiency by mortgagees or servicers. Poor servicing techniques such as computerized form letters and unrealistic forbearance agreements as were used by Associated defeat the purpose of the National Housing Act and the HUD program. The prevention of foreclosure in HUD mortgages wherever possible is essential. The HUD program‘s objectives cannot be attained if HUD‘s involvement begins and ends with the purchase of the home and the receipt of a mortgage by a low-income family. Id.

    Associated E. Mortg. Co. v. Young, 394 A.2d 899, 906 (N.J. Super. Ct. Ch. Div. 1978).

(2) Indiana Legal Services, Inc. is a nonprofit law firm that provides free civil legal assistance to eligible low-income people throughout the state of Indiana.

Central Florida Robosigning Operation Goes On The Offensive; Sues Foreclosure Defense Attorney For Alleged Libel, Slander

Barry Ritholtz writes in The Big Picture:
  • Sometimes, the best defense is a good offense. That seems to be the approach that notorious robo-signing firm Nationwide Title Clearing has taken in responding to some of its critics.

  • If you are unfamiliar with their name, you might recall earlier this Fall when depositions of several Nationwide robo-signers employees went viral on YouTube (We mentioned these here and here).

  • This, amongst other perceived sleights has upset Nationwide Title, who has sued a St. Petersburg foreclosure defense lawyer, Matthew Weidner, for alleged libel and slander. This is likely to be a terrible, terrible idea.

For more, see When Robosigners Attack!

Recently-Recorded, Forged Mystery Lien Threatens To Kibosh Short Sale Of Home Facing Imminent F'closure; Title Agents Refuse To Insure Over Dirty Deed

In Elk Grove, California, KXTV-TV Channel 10 reports:
  • The pending sale of a home on the brink of foreclosure could collapse because of a fraudulent deed of trust recorded on the property-- and no one involved in the transaction can imagine a possible motive.


  • [Homeowner JT] Tiumalu's Realtor found a buyer and got approval from both the first and second mortgage holders to close escrow by the end of December. But this week, a preliminary title report showed a mysterious new $26,500 deed of trust that was recorded on Oct. 13.

  • The phony deed of trust puts the house in Alameda County, the signatures of the homeowners are forged, and the notary stamp appears to be counterfeit. Although the document is clearly fraudulent, it's enough to cloud the title and kill the sale.


  • Realtor Megan Laherrere, who was negotiating the short sale with the lenders for Montoya, said a quiet title action could take months and cost thousands of dollars in legal fees. "We contacted title and their bonds will not cover removing it. The title insurance won't cover it. Nobody wants to touch it," Laherrere said.

For more, see Mystery lien could torpedo Elk Grove home sale.

Tuesday, December 14, 2010

Foreclosed Minnesota Homeowner Says She Was Duped Into Signing Away Deed & Redemption Rights For $5K; Sues To Undo Title Transfer

In Washington County, Minnesota, Minnesota Public Radio reports:
  • Many [Minnesota] homeowners in foreclosure may not be aware there's another option that would allow them to keep their homes. Under state law, they can buy their home back after the sheriff's sale for the price of the winning bid. That bid can be tens or even hundreds of thousands of dollars less than what they owed on the house.

  • But the law is not widely known, and as a result many homeowners have lost out on the chance to stay in their homes. Marie Forsell, who owned a home in Washington County, is one of them.


  • After Forsell's house was sold at a sheriff's sale this fall, people started showing up at her doorstep with offers of help. Investors offered her money -- $5,000 -- in exchange for her deed. The $5,000 sounded pretty good at that time, because Forsell figured she could never scrape together enough money to redeem her house.

  • What Forsell didn't know was how much her house had sold for at the sheriff's sale. After she'd agreed to take the $5,000, Forsell found out that her house -- on which she owed close to $600,000 -- had sold at auction for only about $86,000. [...] That's when Forsell discovered something else: under state law she could have bought her home back during the redemption period that follows the sheriff's sale, for far less than what she owed.


  • The investors who bought Forsell's deed also bought her rights to redeem her house. Now, they can put it back on the market for a profit. [...] The deal Forsell agreed to amounts to equity stripping, according to her attorney Jerome Ritter. He says homeowners in foreclosure are vulnerable to such deals because they may not know their rights.

  • "They trusted people who said, 'I am here to help, here is some money, it's the best you can get,'" he said. "They made it work because they did not tell the homeowner the true set of facts, and that is wrong."

  • Minnesota updated its foreclosure laws this year in an effort to prevent mortgage fraud. The law requires people seeking title to a foreclosed property after the sheriff's sale -- and before the end of the redemption period -- to notify the homeowner that the house can be redeemed for the sheriff's sale price, if it's less than the amount owed before the sale.


  • Forsell is suing the investors she made the deal with, claiming they broke the law. She hopes a judge will grant her a second chance to get her house back.

For the story, see Little-known law could help foreclosed homeowners.

Foreclosure Mill's Apparent Failure To Arrange For Orderly Transfer Of Cases To New Counsel Leads To Chaos At South Florida Foreclosure Sales

In South Florida, The Palm Beach Post reports:
  • The transfer of thousands of files from the deposed David J. Stern law firm caused not just a foul-up in recent Palm Beach County foreclosure auctions, but is shutting down cases to the point that one defense attorney called the lack of action "malpractice."

  • Between Nov. 29 and Friday, there were 110 foreclosure sales in Palm Beach County in which the bank made no bid for the home, according to the Palm Beach County Clerk's office.

  • Unwitting investors put in winning offers as low as $200 for homes they'll probably never get because the auctions were not properly advertised, likely lost in the shuffle from Stern's office to other firms.

  • Foreclosure defense attorneys said hearings are being canceled, they don't know who is representing the banks in their cases, and that motions for Stern to withdraw from cases aren't being filed, leaving the firm as attorney of record.

  • The problems led Broward County Chief Judge Victor Tobin to issue a temporary administrative order outlining how Stern cases should be handled and requiring legal evidence be shown that the firm was terminated and new counsel hired. "It appears that Stern has not made arrangements for the orderly transfer of cases from him or his firm to new counsel for pending cases," Tobin wrote.

  • And Palm Beach County Clerk of Court Sharon Bock said the transfers are "just adding to the misery that is already happening" in the foreclosure courts.

For more, see Foreclosed homes hit auctions with no legal representation.

See also A house for $200? Foreclosure confusion leads to rock bottom auction prices.

Central Florida Judge Lets Foreclosure Mills Off The Hook On Inflated Process Server Fees

In Central Florida, The Tampa Tribune reports:
  • Pasco County Circuit Judge Susan Gardner has agreed to let some attorneys "off the hook" – this time - for legal fees she says are inflated. "But I'm not approving these fees to be added to the final judgment," Gardner said. "And I think attorneys now know that I'm watching, and I'm not tolerating unreasonable fees."

  • Gardner decided last month to take a closer look at her foreclosure cases after former employees of a large foreclosure firm testified to overbilling and forging documents. The judge plastered files with adhesive notes detailing concerns over a mountain of fees to serve notice of foreclosure lawsuits to homeowners and to people who don't exist.

  • "Routinely, routinely, I'm seeing charges of $1,600, $1,800, $1,000, $800, any of those are ridiculous, and there had better be a good reason for it," Gardner said at the time. These fees should typically be $45 to a couple hundred bucks, she said.

  • Some of the lawyers who submitted affidavits to the court saying the fees are "reasonable" often sign their names and bar numbers in an illegible scribble, court records show. The judge ordered five lawyers to show why the fees were reasonable. Their explanations didn't please Gardner, but she said she decided to make this a warning.

  • "I was a little weak on holding someone's feet to the fire because I wasn't sure who to blame," Gardner said. "Everyone involved was following someone else's instructions."

For more, see Pasco judge warns attorneys about high foreclosure fees.

Sticky-Fingered Closing Agents Get Prison For Roles In $4.1M Escrow Account Ripoff; Used Check-Kiting Scheme In Failed Attempt To Conceal Dirty Deeds

From the Office of the U.S. Attorney (Springfield, Missouri):
  • Beth Phillips, United States Attorney for the Western District of Missouri, announced [] that the owners of Guaranty Title, formerly headquartered in Nixa, Mo., have been sentenced in federal court for their roles in $4.1 million wire fraud, bank fraud and money laundering conspiracies.

  • Richard G. “Rick” Burton, 60, of Nixa, Mo., and Kathy Cyrena Allen, also known as Kathy Stanton, 53, of Sarcoxie, Mo., were sentenced in separate hearings before U.S. District Judge Greg Kays on Tuesday, Nov. 30, 2010. Burton was sentenced to six years and six months in federal prison without parole. Allen was sentenced to three years and three months in federal prison without parole. The court also ordered Burton and Allen to pay $4,150,663 in restitution, for which they are jointly and severally liable.

  • Burton and Allen participated in a scheme to defraud financial institutions and individuals of more than $4.1 million through a series of illegal financial transfers related to stolen escrow payments. They attempted to conceal their criminal activities through a substantial check-kiting scheme. Both Burton and Allen pleaded guilty to conspiracy to commit wire fraud and conspiracy to commit money laundering. Allen also pleaded guilty to conspiracy to commit bank fraud.


  • Burton and Allen admitted that they took a portion of the escrow money that had been transferred into these escrow accounts. In violation of Guaranty’s promise not to do so, they caused $3,467,709 of stolen escrow funds to be diverted into the firm’s business operations account and used the money for the day to day business operations of Guaranty.

For the U.S. Attorney press release, see Owners Of Guaranty Title Sentenced For $4.1 Million Fraud.

Monday, December 13, 2010

Judge Cancels Previously-Ordered Foreclosure Sale After Reviewing Testimony In Expert's Affidavit As To Dubious Nature Of Robosigner Documents

A recent story in the South Florida Sun Sentinel describes the approach taken by homeowner Gerta Kachko and foreclosure defense attorney Geoff Sherman in an attempt to get a previously-scheduled foreclosure sale cancelled:
  • Sherman said the Aug. 10 [summary judgment] hearing lasted only a few minutes, with a Broward County Circuit Court judge ruling in favor of Deutsche Bank and setting a date of Dec. 8 for the condo to be repossessed.

  • Sherman said he later read about issues in other cases involving an accused robo-signer. Intrigued, Sherman investigated further while Eugene Kachko hired an expert on mortgages and foreclosures to review his mother's case.

  • The expert, West Palm Beach attorney Lynn Szymoniak, wrote in an affidavit that "it is clear" that Deutsche had not acquired the Kachko mortgage at the time it moved to foreclose. Szymoniak testified that Deutsche filed a document proving that it owned the Kachko mortgage only after filing the initial foreclosure, and it attempted to make the document effective retroactively.

  • The document was signed by Linda Green and Linda Thoresen, who were identified as representatives of America Home Mortgage. But Szymoniak said Green and Thoresen actually were employees of Lender Processing Services Inc., a Jacksonville-based company whose services include drafting missing documents to facilitate foreclosures.

  • Green and Thoresen "signed thousands of documents each week as needed in foreclosure cases, without any personal knowledge of the documents, often without any authority from the entities they claimed to be their employers and, in most cases, without ever reading such documents," Szymoniak wrote.

  • She also noted that LPS told federal regulators in August that its document production operations were the subject of state and federal investigations. A spokewoman for LPS did not respond to an interview request.

  • On Aug. 20, Sherman filed a motion for a rehearing, asking that the judge's ruling for Deutsche be vacated on the grounds that the bank allegedly committed fraud. Judge Eli Breger granted the order on Sept. 24, canceling the Kachko foreclosure. Four days earlier, GMAC Mortgage had become the first lender to suspend foreclosures.

Source: Broward homeowner alleges robo-signer wrongdoing in foreclosure case.

Bank Fails Again To Convince NY Bkrptcy Judge It Has Standing To F'close On Bronx Borrower; Invited To Try Again; Admits It Doesn't Know Who Owns Note

In New York City, AOL's Daily Finance reports:

  • In its attempts to prove its legal standing to foreclose so far, Wells Fargo has submitted two different versions of Mims's note, certifying each as a true and accurate copy of the original. The bank has also submitted a document assigning the mortgage to it that was problematic, as I explained in an article earlier this week.

  • One issue with the assignment was that the company allegedly doing the assigning is defunct. Another is that -- through the magic of MERS -- a Wells Fargo employee was signing on behalf of the assigner. Essentially, that puts Wells Fargo on both sides of the contract, a conflict of interest.


  • Describing himself as "deeply concerned," Judge Glenn noted that, in looking at the documents, questions kept "popping out," and he made the point that Wells Fargo hadn't answered the questions he had raised in his initial order against it. In one of the hearing's more dramatic moments, the judge asked Wells Fargo who the investor in the note was -- the MERS database doesn't say -- and Wells admitted it didn't know.

For more, see Judge Rejects Wells Fargo Foreclosure Documents Again.

See Wells Fargo, Upstate NY Foreclosure Mill To Face The Heat In Explaining Dubious Documents Filed In Foreclosure Matter for last week's post on this story.

(1) See In re Mims II - Order. While the judge ruled against Wells, he gave the bank permission to try again, the story states.

Two Phoenix Cops Shelved On Administrative Leave After Agreeing To $458K Settlement With AZ AG For Roles In Alleged Illegal Sale Leaseback Deals

From the Office of the Arizona Attorney General:
  • Attorney General Terry Goddard [last week] announced a judgment totaling $458,000 in civil penalties and restitution(1) for consumers as a result of a mortgage fraud investigation and lawsuit. [..] On November 24, 2010, Goddard filed a lawsuit(2) on behalf of his Office and the Arizona Department of Financial Institutions against Lee Brent Shaw of Gilbert and Mark Tallman of Chandler and their limited liability companies, Better Choice Investments, LLC, and Better Solutions, LLC, alleging that they defrauded some 148 Arizonans of their homes. Both Shaw and Tallman are also Phoenix Police Officers.

The Associated Press reports that Shaw and Tallman have been put on administrative leave after agreeing to the settlement, and further reports that a police statement says an internal investigation is now under way. See 2 Phoenix officers on leave after settling suit with AG that accused them of mortgage fraud.

For the Arizona AG press release, see Goddard Announces $458,000 Judgment in Fraud Case Involving Two Police Officers.

For the lawsuit and the consent judgments in this case, see:

See also 2 Sale Leaseback Peddling Cops Accused Of Consumer Fraud Violations; "Equitable Mortgages" Required Disclosures Under TILA, HOEPA: Arizona AG for an earlier post on this story.

(1) According to the terms of the settlement, the defendants must:

  • Pay $310,000 in restitution to homeowners victimized by their scheme.
  • Pay $148,000 in civil penalties to the Attorney General’s Office and the Arizona Department of Financial Institutions.
  • Pay $27,717 in costs and attorney’s fees.
  • Refrain from participating as a director or officer in any financial institution or enterprise licensed by the Arizona Department of Financial Institutions.
  • Refrain from engaging in any activity requiring the issuance of a license under the authority of the Arizona Department of Financial Institutions.
  • Refrain from any ownership interest in a sale-leaseback transaction.

It sounds like the duo got a pretty good deal from the state AG's office. Unlike this suit involving multiple sale leaseback deals and 100+ alleged victims, a recent New Jersey civil lawsuit resulted in a significantly higher monetary award and related to only one sale leaseback deal with one homeowner-couple. See NJ Federal Judge Upholds Ruling Awarding $690K To Homeowner Screwed Out Of $116K In Sale Leaseback Scam; OK's Add'l $34K For Victims' Attorney Fees.

Substantially all of the court-awarded damages granted to the homeowner-couple in the New Jersey case were attibutable to actual damages for the stripped equity and statutory damages for violations of the Federal Truth In Lending Act, Federal Home Ownership and Equity Protection Act, and a state consmer lending law.

Presumably, the settlement with the Arizona Attorney General also insulates the pair from any possible criminal liability that may have possibly arisen from their alleged activities. See Criminal Prosecutions Of Sale Leaseback Peddlers In Equity Stripping Foreclosure Rescue Deals for those incidents that led to criminal prosecutions in sale leaseback deals.

For some insights on the various legal theories and strategies to attacking this type of scam in civil lawsuits brought on behalf of screwed-over homeowners, see:

  • Foreclosure Rescue Scams I (part of a larger work from the National Consumer Law Center),
  • Foreclosure Rescue Scams II (work made available online by the State of Washington Office of the Attorney General),
  • DREAMS FORECLOSED: The Rampant Theft of Americans' Homes Through Equity-stripping Foreclosure 'Rescue' Scams (a publication from the National Consumer Law Center).

(2) According to the Arizona AG's press release:

The lawsuit alleged that between 2003 and 2007, the two defendants, through their Better Choice Investments, LLC, purchased sale-leaseback transactions from solicitors who had convinced homeowners to sell their homes for far less than the market value, promising to save them from foreclosure.

The solicitors persuaded struggling homeowners to deed them their homes in return for assuming their monthly mortgage payments and paying off the full value of their delinquent payments, often using funds advanced by defendants. The lease agreement provided for a monthly fee equivalent to the mortgage payment to remain in the home as a renter. Neither the owner’s mortgage lender nor servicer was notified of the transfer of title.

After the initial paperwork was signed, the deal was quickly turned over to defendants Shaw and Tallman, in return for a commission paid to the solicitors. The defendants recruited a pool of investors willing to assume co-ownership and refinance, for a 50 percent share in the profits.

The owners-turned-renters had the option to repurchase the house within one year for a fee of approximately $15,000, if they met all of the conditions of the sale-leaseback agreement. If the owner-turned-renter violated any of the conditions, such as by making a late rental payment or being evicted, the option to repurchase the home became void and the individual was subject to immediate eviction.

Almost all of the owners-turned-renters proved unable to repurchase their properties, at which time the defendants sold or refinanced the home at full market value, earning profits in the tens of thousands of dollars.

Colorado AG Announces Two Civil Lawsuits Targeting Alleged Sale Leaseback, Equity Stripping Foreclosure Rescue Ripoff Operations

From the Office of the Colorado Attorney General:
  • Colorado Attorney General John Suthers announced [last week] that his office has filed separate lawsuits against three businesses and five individuals accused of defrauding homeowners in Denver, Boulder, Broomfield and Adams counties through deceptive foreclosure rescue schemes. [...] All of these defendants are suspected of defrauding homeowners out of substantial equity in their homes through an elaborate foreclosure rescue scheme in violation of the Colorado Foreclosure Protection Act.

  • According to the complaints filed in Denver District Court, consumers facing foreclosure were approached by the defendants with a proposal to save their homes. The defendants promised to use the equity in the homes to halt the foreclosures and, in some cases, to make improvements to the properties.

  • Homeowners were instructed to transfer title to their properties to investors arranged by defendants,(2) who would then lease the properties back to the original homeowner with an option to repurchase their homes. The complaints allege that many homeowners were subsequently evicted and that none of them were ever able to exercise their repurchase options. All of the equity in their homes was lost to the defendants.(3)

For the Colorado Attorney General press release, see Attorney General announces lawsuits against individuals, companies engaged in fraudulent foreclosure rescue activities.

(1) The first complaint, State of Colorado v. Lynn, et ano., charges Jason L. Lynn (DOB: 3/10/1977) and Lynn’s company, Superior Financial Group.

The second complaint, State of Colorado v. Brunner, et al., charges Patrick C. Brunner (DOB: 7/27/1979), Brunner’s company, Platinum Financial Group, Jerry Ohu (DOB: 6/10/1974), Ohu’s company, Fortune Financial Group, Gregory D. Hoffman (DOB: 8/21/1969) and William J. Schultz (DOB: 7/29/1974).

(2) According to the civil lawsuits filed by the Colorado Attorney General, the sale leaseback peddlers arranged for a sale of the homes to investors, converting any of the home equity into cash by financing the deal with a mortgage loan from a financial institution, and subsequently using assignments to divert those net proceeds into their own pockets.

Attorneys General in Massachusetts, Arizona, Maryland and Washington State have enjoyed recent success in bringing civil lawsuits prosecuting sale leaseback foreclosure rescue peddlers by invoking their respective state consumer protection statutes, See:

The New Jersey Attorney General's Office has also brought civil lawsuits in sale leaseback cases which are currently pending:

(3) Although this action was brought as a civil lawsuit in which no criminal allegations have been made, the sale leaseback arrangements alleged by the Colorado AG, which employ the use of a third party investor to obtain institutional financing to sap the equity out of the target homes, appear to be simliar in nature to those deals that have been the subject of criminal prosecutions by various law enforcement authorities. See Criminal Prosecutions Of Sale Leaseback Peddlers In Equity Stripping Foreclosure Rescue Deals.

Sunday, December 12, 2010

Sale Of Property Coupled w/ Buyback Right Under Contract For Deed Deemed An Equitable Mortgage; MN Federal Court Looks To Substance Over Form Of Deal

A U.S. District Court in Minnesota recently had an opportunity to review a somewhat complex transaction involving a title transfer of real estate by a property owner to another, coupled with a Contract for Deed calling for a future title transfer back to the property owner that was designed to obtain needed funds.

In declaring the arrangement to be an equitable mortgage,(1) the court disregarded the form of the arrangement as an outright sale with a repurchase contract and ruled that the deal, in substance, was merely a financing transaction intended to generate needed cash.(2)

For the ruling, see Hartman v. Smith, Civil File No. 09-01618-MJD/RLE (D.Minn. Sept. 17, 2010).

(1) For the treatment of sale transactions coupled with leaseback or other deferred buyback arrangements as equitable mortgages, see generally:

(2) The court made the following analysis of Minnesota law in reaching its conclusion (bold text is my emphasis, not in the original text):
  • Courts generally presume that a deed is a conveyance. Ministers Life & Cas. Union v. Franklin Park Towers Corp., 239 N.W.2d 207, 210 (Minn. 1976).

    However, Minnesota courts have adopted the doctrine of "equitable mortgage" "to prevent any overreaching by one party which would unfairly exploit the other party's financial position or relative lack of experience in real estate dealings." Id.

    Essentially, if "the real nature of the transaction between the parties is that of a loan, advanced upon the security of realty granted to the party making the loan, it may be treated as an equitable mortgage." First Nat'l Bank of St. Paul v. Ramier, 311 N.W.2d 502, 503 (Minn. 1981).

    The intent of the parties is paramount, and to overcome the presumption that a deed is a conveyance, it must be clear that both parties intended that the transaction result in a mortgage. Ministers Life & Cas. Union, 239 N.W.2d at 210.

    In order to determine intent, courts may look to the documents relating to the transaction. Id. The lack of terms such as "debt," "security," or "mortgage" are strong evidence indicating that the transaction is not a mortgage. Id. However, the fact that documents do not express the existence of a loan is not conclusive, and the intention of the parties is to be ascertained by looking at "all the facts and circumstances surrounding a transaction." Gagne v. Hoban, 159 N.W.2d 896, 899 (Minn. 1968). "In the final analysis, the question of whether the parties to a conveyance really intended it to be absolute or security for indebtedness is for the triers of fact." Id. at 900. The true inquiry is whether the parties intended an outright sale or whether the "purpose and effect of the transaction is to give security on real property for a debt." Id. at 899.
  • In addition to looking to the intent of the parties, courts will also consider the following factors in making a determination as to whether a conveyance should be construed as an equitable mortgage:

    1) the disparity between the value of the property and the price paid;
    2) the nature of the solicitation that gave rise to the transaction;
    3) attempts to sell the property on the open market;
    4) whether there was a negotiated sale price; and
    5) whether there was continuous occupancy.

    Brown v. Grant Holding, LLC., 394 F. Supp.2d 1090, 1098-99 (D. Minn. 2005).

    Turning to the Brown factors, the Court concludes that they also weigh in favor of finding an equitable mortgage. The vast disparity between the Subject Property’s sale price of $280,000 and the appraised value of $2.5 million suggests that the transaction operated as a loan. See Jones v. Rees-Max, LLC, 514 F. Supp. 2d 1139, 1146 (D. Minn. 2007) (holding that a disparity of $278,000 in value and purchase price of $214,000 was large enough to weigh in favor of equitable mortgage).

    The nature of the solicitation involved frequent assurances from Smith that this arrangement would allow them to keep their home. The home was never placed on sale in the open market. There was no negotiated sale price, but rather an amount of money needed for the Plaintiffs’ financial needs at the time.

    Plaintiffs continued to occupy the premises upon executing the Contract for Deed and continued to pay real property taxes and homeowner’s insurance as a part of their monthly payments.

    Finally, Plaintiffs made post-conveyance improvements to the property.

    In light of these facts, the Smiths’ admissions, and Prime’s failure to state a position on this issue, the Court finds it appropriate to enter a declaratory judgment that the agreements the Smiths and Plaintiffs entered into on February 21, 2007 constituted an equitable mortgage.

Lenders & Their Attorneys Continue To Litter U.S. Courtrooms With False Affirmations In Home Foreclosure Actions

Among the latest attorneys ruffling New York Supreme Court Justice Arthur M. Schack's feathers in a foreclosure action is Donna D. Maio, Esq. of Matthews & Matthews, as evidenced by this excerpt from a recent ruling:
  • Both Mr. Phelps and Ms. Maio should have discovered the defects in Ms. Taylor's verification of the subject complaint. The jurat states that the verification was executed in the State of New York and the County of Suffolk [the home county of plaintiff's counsel], but the notary public who took the signature is Deborah Yamaguichi, a Florida notary public, not a New York notary public. Thus, the verification lacks merit and is a nullity.

  • Further, Ms. Yamaguchi's notarization states that Ms. Taylor's verification was "Sworn to and subscribed before me this 4th day of June 2008." Even if the jurat properly stated that it was executed in the State of Florida and the County of Duval, where Jacksonville is located, the oath failed to have a certificate required by CPLR § 2309 (c) for "oaths and affirmations taken without the state." CPLR § 2309 (c) requires that:

    An oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by such certificate or certificates as would be required to entitle a deed acknowledged without the state to be recorded within the state if such deed had been acknowledged before the officer who administered the oath or affirmation.

  • The Court is distressed that Ms. Maio falsely affirmed on November 11, 2010 that "pursuant to CPLR § 2106 and under the penalties of perjury," that "the Summons and Complaint and all other documents filed in support of this action for foreclosure are complete and accurate in all relevant respects," when the instant motion papers are incomplete and the verification is defective.

  • Moreover, the purpose of the October 20, 2010 Administrative Order requiring affirmations by plaintiff's counsel in foreclosure cases is, according to Chief Judge Lippman, in his October 20, 2010 press release, to ensure "that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure."(1)

For the court ruling, see Washington Mut. Bank v Phillip, 2010 NY Slip Op 52034 (NY Sup. Ct. Kings County, November 29, 2010).

(1) Go here for the required Attorney Affirmation form.