Saturday, February 16, 2013

Elderly Florida Manufactured Home Park Residents Seek Protections Against Skyrocketing Lot Rents That Cause Some To Walk Away, Abandon Equity In Homes

In Lakeland, Florida, The Lakeland Ledger reports:
  • Diagrams illustrating the eight ways to win at bingo adorned the walls of the community room at Citrus Center Colony, but the 30 or so seniors gathered there on a recent morning weren't playing games.

    The representatives of local manufactured-home communities listened as activist Ed Green urged them to pressure state legislators to support a proposed bill that he said could some day save them from having to forfeit their homes.

    Green spoke calmly, but his words were often incendiary.

    "You understand that they (park owners) have to make a profit or they wouldn't be able to supply you with what they supply you with," Green said, "but they don't have to make such a large profit that you bleed to death to enjoy it. Take little chunks instead of big chunks."

    That prompted murmurs of agreement from the seniors whose parks were identified by yellow paper labels — Highland Village, Anglers Cove, May Manor and others.

    Green, who lives in a manufactured-home park in Citrus County, is traveling the state to promote the "Florida Rent Fairness Act," which he said he hopes will be introduced in the Florida Legislature session beginning in March. The proposed bill would greatly limit the amount parks can raise lot rents following a home sale by linking them to the Consumer Price Index, the federal government's measure of inflation.

    Residents of manufactured-home neighborhoods — also called mobile-home parks — occupy a unique niche. In most parks, residents own their homes but rent their spaces. Lot rents can vary greatly within a park, and when a resident sells a home the park owners impose "market rent adjustments," meaning the buyer might face a lot rent much higher than the seller's.

    That, Green said, can make it difficult for seniors to sell their homes. He gave the example of a senior resident whose spouse dies, cutting the resident's income in half and leaving him or her unable to afford living in the park.

    With potential buyers deterred by high lot rents, some seniors simply turn their homes over to the park owners, abandoning tens of thousands of dollars in equity — a scenario Green called "involuntary foreclosure."
For more, see Seniors Seek "Fairness Act" Bill to Limit Mobile-Home Park Rent Hikes (Activist traveling state to promote "Fairness Act.").

70-Year Old Man Who Was Allegedly Behind In Rent Charged In Slaying Of Eviction-Seeking Sister; Head-Grazing Bullet Wounds Niece

In East Flatbush, Brooklyn, the New York Post reports:
  • An elderly Brooklyn man allegedly shot and killed his sister yesterday when she tried to evict him, law-enforcement sources said.

    William Thurmond, 70, was taken into custody at the East Flatbush house after he allegedly gunned down his sister and grazed his niece at around 10 a.m., the sources said. Thurmond was taken to the 67th Precinct station house in Brooklyn where he was charged with criminally negligent homicide.

    Investigators believe the bloodshed was sparked when Carol Lovell, 63, and her daughter, Crystal Birk, 37, tried to evict him for not paying his share of the rent, the sources added.

    The women, who live upstairs, confronted Thurmond in the basement, police sources said. They argued, and Thurmond allegedly shot Lovell in the chest and grazed his niece in the head, law-enforcement sources said.
For more, see Brooklyn man 'kills' sister, wounds niece in eviction fight (Brooklyn man allegedly kills sister and wounds niece in eviction fight).

Man Who Allegedly Hijacked Possession Of Unoccupied Home From Out-Of-Town Owner, Then Ran Online Scam To Pocket $4,500 In Rent From Duped Tenants Pinched On Felony Theft By Deception Charges

In Conyers, Georgia, the Rockdale Citizen reports:
  • A man who allegedly rented someone else's house to two tenants is in the Rockdale County Jail charged with two counts of felony theft by deception.

    Patrick Henry Stuart, 43, of 3107 Baywood Court, Conyers, was arrested Feb. 8 on warrants that were taken out as part of an investigation that began in December. Prior to his arrest, police said Stuart was believed to be in Texas.

    According to a report by the Conyers Police Department, the owner of a house at 1526 Evergreen Hollow went to the property on Dec. 20 where he had scheduled to have some repairs made. When the man, who lives in Florida, arrived, he reportedly found a family living there illegally.

    Police investigated and learned that the house had been leased to two sisters who said they signed a rental agreement in November. Stuart, who was known to the sisters as Jamere Stuart of Real Foreclosure Solutions, was identified as the man who rented them the house.

    According to one of the sisters, they had found the property online. The sisters reportedly had paid $4,500 in rent. They provided police with a copy of the rental agreement and receipts for money cards that they got at Walmart to pay the rent.

    The owner of the house said that the stainless steel refrigerator and stove that he had installed in the house were missing.

80-Year Old Homeowner Falls Victim To Forged Documents Used To Scam Him Out Of $110K

In Manhattan, Kansas, WIBW-TV reports:
  • Riley County police say an elderly Manhattan man fell victim to a home mortgage scam and is out of $110,000.

    Officials say the suspects sent the 80-year-old victim information saying that he was past due on payments and that his home was pending foreclosure. According to police, paperwork from the suspects used a header from Bank of America.

    The victim provided his financial information and ended up losing thousands. He started having contact with the suspects on December 1, 2013 and their communications continued until February 1, 2013. After realizing that the whole thing was a scam, he contacted Riley County police to report the theft on February 5, 2013.

    Police encourage citizens to report suspicious phone calls or things they receive in the mail and verify things with the company before providing any personal or financial information.

    The victim told WIBW that during the scam, he was contacted by phone and by mail. He declined an interview [].

Friday, February 15, 2013

Head Of Outfit That Manufactured Fraudulent Documents Used To Foreclose On Homeowners Now Cops Guilty Plea In Michigan After Already Admitting Guilt On Federal, Missouri State Charges

In Kent County, Michigan, The Detroit News reports:
  • The former president of a Georgia company that filed thousands of forged documents in Michigan foreclosures pleaded guilty to state racketeering charges Monday in Kent County.

    Lorraine Brown, former president of loan document processor DocX, faces up to 20 years in prison when she is sentenced May 2, according to the Michigan Attorney General's office.

    Brown already pleaded guilty to similar charges in federal court and in a Missouri case in which she agreed to a prison sentence of two to three years. DocX is out of business, but its parent company, Loan Processing Systems of Jacksonville, Fla., has cooperated with investigators and is paying out millions.
For more, see Ex-exec pleads guilty in loan foreclosures (Firm's 'robo-signing' included thousands of filings in Mich..)

For the Michigan Attorney General press release, see Schuette Announces Guilty Plea for Former Mortgage Processor President Responsible for Fraudulent Robo-Signing Scandal.

Meth Lab Operators Busted In Rented Homes Leave Big Contamination Clean-Up Bills For Unwitting Landlords; One Owner Considers Opting For Foreclosure In Lieu Of Footing Stiff Tab

In Louisville, Kentucky, WAVE-TV Channel 3 reports:
  • When is living in a former meth lab only sort of dangerous? That's the question facing hundreds of property owners across Kentucky as they grapple with the high cost of cleaning up toxic methamphetamine contamination.

    Some believe the state regulations are too strict. Landlords often file appeals with the state to get their meth contamination notices downgraded. And only a third of all meth contaminated homes in Kentucky are properly cleaned up.

    "I had no idea what was going on," Steven Outland said.

    Outland is living in a former meth lab. His roommates were arrested for cooking methamphetamine in the home they shared on Powell Avenue in Louisville's south end. The health department immediately posted a notice of methamphetamine contamination. It warns "hazardous chemicals and residual contamination... may pose a serious health threat to those that enter."

    Outland moved out, but only for a little while. "I actually just spent a week in a homeless shelter and decided that was enough so I came here," he said.

    The owner of the house, Don Sinclair, said he wants to clean up but can't afford it, so he's just going to let the home fall into foreclosure. State certified contractors charge between $3,000-$5,000 for even the smallest meth labs. The high price tag is largely because most contamination levels are automatically labeled tier 3 in the state required assessment done by police.

    In Jefferson County, there are dozens of homes where meth contamination warnings were ignored. That's because there is no law that actually forces a home owner to decontaminate a home where someone has been cooking meth.

    With so many meth labs located in low income areas, Energy and Environment Cabinet program coordinator Kim Greenidge knows cost makes it difficult to get these homes properly cleaned up. That's why Greenidge says Kentucky created an appeals process for property owners who don't think they have as much meth contamination as reported on that initial assessment.

    But in 2012, only 5 tier reduction appeals were granted because even small labs can leave behind dangerous toxins when used repeatedly over a period of time.

    That means huge headaches and bills for property owners like Dave Melton, who had to hire a state certified contractor after a tenant was arrested for cooking meth in his rental property on Swan Street in Louisville.

    "It wasn't an active lab when they did the bust," Melton said. "But there was some residual stuff." Residue that cost Melton thousands of dollars before he could safely rent out the property again.

    The Kentucky Housing Corporation created a program to help innocent homeowners pay the decontamination costs but landlords like Melton don't qualify. The fund is for homeowners living on site, like a grandmother living in a home where her grandson was secretly cooking meth in the basement. And the recipient also has to be low income.

    KHC said it recently spent $50,000 to clean up just two homes.

Florida Bar Grievance Committee Finds Probable Cause To Probe Now-Sitting Judge Over Alleged Conflicts Of Interest That May Have Left One-Time Client Screwed Out Of Interest In Land

In Live Oak, Florida, the Suwannee Democrat reports:
  • The Florida Bar’s Third Judicial Circuit Grievance Committee has found probable cause to support a landowner’s accusations of misconduct and conflict of interest against Circuit Judge Andrew J. Decker III of Live Oak.

    The finding resulted from an eight-month investigation by the committee into Decker’s handling of a real estate foreclosure case as a private attorney and before he was elected a judge last November.

    The complaint against Decker now goes before the Florida Judicial Qualifications Commission, the agency that reviews ethics charges against state judges and can take disciplinary action if it finds fault. 

    The misconduct and conflict accusations were made last spring by Daniel A. Dukes of Union County, a partner in the B.W.D Land Trust represented by Decker in foreclosure negotiations with TD Bank. Other trust partners were Circuit Judge Paul S. Bryan of Lake City, and William E. Woodington of Union County.

    Among other things, Dukes accused Decker of conspiring with Judge Bryan to transfer Duke’s one-third ownership of the foreclosed property to the judge, then withdrew as Duke’s attorney and later represented the judge in a bankruptcy filing.

    He also accused Decker of representing clients before Judge Bryan without disclosing to the opposing side that Decker had served as the judge’s lawyer in other legal proceedings.

    The Grievance Committee, which serves as a grand jury for complaints against Florida lawyers, found there was probable cause that Decker violated four of the Florida Bar’s rules on misconduct and conflict of interest.
For more, see Local judge accused of misconduct (State commission to review accusations by landowner).

Thursday, February 14, 2013

Bankster's Score Big Win In Effort To Perpetuate Force-Placed Insurance Racket; Plan To Save Financially Strapped Homeowners As Much As $300M/Year Squelched By FHFA

American Banker reports:
  • The Federal Housing Finance Agency has killed a plan to slash premiums for replacement homeowners insurance on Fannie Mae loans, according to people informed of the agency's decision.

    The FHFA, which is the conservator of the government-sponsored enterprise, announced its decision Monday on a conference call with Fannie Mae staff and mortgage industry trade groups.

    The regulator's move will block a plan that was expected to save Fannie and homeowners as much as $300 million a year, according to people familiar with it. The plan would have supplied homeowners with low-cost housing insurance from Fannie's own vendors and prevented banks from collecting payments for steering business to "forced-placed" insurance carriers.

    Force-placed insurance is hazard insurance purchased when struggling mortgage borrowers fail to maintain coverage on their own homes. It has become increasingly controversial in recent years as state regulators and consumer advocates have uncovered a pattern of alleged kickbacks from insurers to the banks who buy it.

    Fannie's plan represented the largest threat to the current structure of the industry, and had drawn criticism from mortgage and insurance industry trade groups over the past few months.
  • The FHFA's move is a coup for a coalition of mortgage industry trade groups that have lobbied extensively against Fannie's plan. Shortly after the markets opened on Tuesday morning, the stock price of Assurant (AIZ), the leading force-placed insurer, rose by 5%.

    In a research note, analysts at Compass Point called the FHFA decision "a decisive positive for force-placed insurance providers and brokers."
  • At first blush, the FHFA's move appears to end the single most significant regulatory threat to the force-placed insurance industry, which has been the subject of significant controversy over the last few years. American Banker has reported that the insurers provide sizable commissions to banks that give them business.
For the story, see FHFA Kills Fannie Mae Force-Placed Insurance Plan.

Thanks to Deontos for the heads-up on the story.

Firms Offering Tax Prep Services, Or Illegal Lending Rackets That Violate State, Federal Lending, Unfair Competition, Consumer Protection, False Advertising Laws; Do These Outfits Disguise Loans As 'Instant' Or '24-Hour' Refunds?'

A recent post on Rebecca Tushnet's 43(B)log describes a recent California appeals court ruling that affirmed a lower court's judgment in favor of the State of California against the seemingly ubiquitous tax return preparation service doing business as Liberty Tax Service.

In the ruling, Liberty was ordered to pay about $1.169 million in civil penalties, and roughly $135,000 in restitution, and permanently enjoining Liberty in several ways for violating state and federal lending, unfair competition, consumer protection, and false advertising laws for its business practices involving Liberty's tax preparation and related loan services (refund anticipation loans - "RALs" - and electronic refund checks - "ERCs").(1)

From the post:
  • Liberty made a lot of money from RALs and ERCs, including in California; it got percentages or flat fees from the banks with which it worked, and RALs and ERCs also cross-subsidized its tax preparation services, which was important because many of its customers couldn’t afford to pay for them out of pocket.

    The trial court found that Liberty’s handling fee charged to ERC customers was an undisclosed finance charge in violation of TILA [Federal Truth in Lending Act] (since an ERC was a form of credit allowing delayed payment for tax preparation services), and that the failure to disclose this also violated the UCL [California's Unfair Competition Law] and FAL [California's False Advertising Law].

    Second, the trial court found that using “cross-collection” to collect tax refund loan debts from prior transactions, including non-Liberty transactions, was deceptive, unfair, and illegal. (This could occur when consumers’ prior RALs were larger than the refunds they ultimately received; because a RAL was a loan, they remained potentially liable on the debt.)

    Third, the trial court found that certain print and TV ads were likely to deceive within the meaning of the UCL and FAL; Liberty was liable for its own ads and those placed by California franchisees.

    Among other things, Liberty was enjoined from directly or indirectly representing a RAL as an actual refund, and from failing to state conspicuously that the product is a loan and including the name of the lending institution and the fee or interest it will charge.

    The court of appeals upheld the determination that Liberty’s cross-collection practices violated multiple state laws along with the federal Fair Debt Collection Practices Act (FDCPA). Liberty waived its arguments about the fraudulent and unfair prongs of the UCL and about the FAL, so the court didn’t need to reach other bases for liability.

    Liberty was responsible for bringing customers to the banks, soliciting loan applications and getting consumers to sign applications that authorized cross-collection. These authorizations covered any unpaid RAL debts, whether owed to Liberty or to anyone else, and whether the debt was stale or otherwise uncollectable.

    The trial court found that both unsophisticated and reasonable consumers were unlikely to recall the details of such debts, particularly those “incurred far in the past and perhaps in connection with a loan issued by a different lender and/or obtained through a different tax preparer.”

    Consumers had no meaningful notice of whether there was a claim against them before they authorized the cross-collection; they thus lost the right to dispute the debt, and thus the practice was deceptive, unfair, and in violation of the FDCPA. The cross-collection authorization “appeared on the second or third pages of lengthy and complex contracts that on their face had nothing to do with debt collection, making it unlikely that applicants would read and understand the significance of the information.”
For more, see Calculation of remedies and vicarious liability under California consumer protection law.

For the ruling, see People v. JTH Tax, Inc., -- Cal. Rptr. 3d --, 2013 WL 177140 (Cal. App. 1 Dist.) (Certified for Publication).

(1) The court pointed out, for example, that during a period relevant to the litigation, "[d]ozens of ads began appearing in Pennysaver that improperly promised such things as "Most Refunds in One Day," "Get $1200 in Minutes . . . And the Rest of Your Tax Refund in 24 Hours," "Most Refunds in 24 Hours" and "Got W-2? 24 Hour Refunds."

Outfit Accused Of Ripping Off Consumers Out Of $120M+ In Income Tax Relief Racket Gets Off By Paying Only $15M To Settle FTC Suit; Feds To Suspend $100M+ In Money Judgments Due To Scammers' Inability To Pay

The Federal Trade Commission recently announced:
  • Under an agreement with the Federal Trade Commission, the defendants in a scheme that allegedly bilked consumers out of more than $100 million by falsely claiming they could reduce their tax debts must surrender more than $15 million in cash and assets to settle charges that they violated federal law.

    Under the settlement order, American Tax Relief LLC and its leader, Alexander Seung Hahn, are banned from telemarketing, and they and Hahn’s wife, Joo Hyun Park, are permanently prohibited from selling debt relief services. As part of the FTC’s ongoing efforts to protect consumers in financial distress, this is the agency’s first action against a tax relief company.

    The FTC filed charges against American Tax Relief, Hahn, and Park in September 2010. A court subsequently halted the allegedly illegal practices, froze the defendants’ assets, and appointed a receiver to manage the company pending resolution of the case.
  • The settlement order imposes a $103.3 million judgment against ATR, Hahn, and Joo Hyun Park. It also imposes judgments of $18 million and $595,000, respectively, against relief defendants Young Soon Park and Il Kon Park, Joo Park’s parents, who were not charged with participating in the scheme but were found by the court to have received significant sums.

    The judgments will be suspended once the defendants and relief defendants have surrendered assets that total more than $15 million, including cash, a home in Beverly Hills and a condo in Los Angeles, jewelry and gold items, and a 2005 Ferrari.

    The full judgments will become due immediately if the defendants or relief defendants are found to have misrepresented their financial condition.
For the FTC press release, see FTC Settlement: Tax Relief Scammers Agree to Pay More Than $15 Million (American Tax Relief Scheme Bilked Consumers With False Promises They Qualified for IRS Programs to Reduce Tax Debts).

Wednesday, February 13, 2013

Calif. Appeals Court: Bank's Failure To Follow HUD Regs Enough To Support Requested Halt Of An Ongoing Alleged Wrongful F'closure, Despite Homeowner's Lack Of Private Right Of Action; Coughing Up Unpaid Loan Balance To Score Injunction Not Necessary

From a news release from the law firm SheppardMullin:
  • In Pfeiffer v. Countrywide Home Loans, --- Cal.Rptr.3d ----, 2012 WL 6216039 (Dec. 13, 2012), mortgage borrowers filed a damages claim against a trustee for violating the federal Fair Debt Collection Practices Act ("FDCPA") and an injunction claim against a lender to halt a foreclosure they claimed was wrongful. The trial court sustained the defendants' demurrer to both claims without leave to amend. The California Court of Appeal affirmed as to the first claim, but reversed as to the second.

    As to the first claim, the California Court joined others in holding that foreclosure activities are not "debt collection" within the meaning of the FCDPA.(1) In particular, the issuance of foreclosure sales notices in compliance with California non-judicial closure law did not constitute debt collection. Thus, the borrowers could not state an FDCPA claim even if the foreclosure was otherwise allegedly wrongful.

    As to the second claim, the Court held that the lender could be enjoined from foreclosing. The loan here was insured by the Federal Housing Administration. Thus, the foreclosure was subject to servicing regulations of the U.S. Department of Housing and Urban Development ("HUD"). These regulations required the lender to conduct a face-to-face interview prior to initiating foreclosure. The borrowers alleged this never happened.

    The Court held that even though the HUD regulations did not create a private right of action, failure to follow the regulations could nevertheless support an injunction based on a common law claim of wrongful foreclosure.

    Because the borrowers were seeking to halt the foreclosure before it concluded, rather than unwind or set aside a foreclosure that had already occurred, the Court held that the borrowers need not tender the loan proceeds to obtain the injunction.

    Of course, nothing would prevent the lender from conducting the face-to-face interview and then starting the foreclosure process all over again.
Source: California Court Holds That Borrowers May Enjoin A Foreclosure If A Lender Fails To Meet Servicing Guidelines.

For the ruling, see Pfeiffer v. Countrywide Home Loans, --- Cal.Rptr.3d ----, 2012 WL 6216039 (Dec. 13, 2012).

Editor's Note: Apparently, this was an important enough case that it compelled the State of California, through the state attorney general's office, to jump into the fray and file a "friend of the court" brief on behalf of the homeowner.

(1) In actuality, with regard to the first claim, the court never specifically held that "foreclosure activities" - in general - are not "debt collection" within the meaning of the FCDPA. The court's ruling in this regard was specifically limited.

The court simply said that the foreclosure trustee did not fall within the definition of "debt collector" as set forth in the FDCPA and accordingly, its activities in giving a foreclosure sale notice to a consumer in this case did not constitute debt collection activity that is covered by the FDCPA. ("Recon" is the foreclosure trustee involved in this case):
  • [t]he Pfeifers do not have a claim for damages against Recon for violating the FDCPA, because Recon is not a debt collector under the statute" and
  • "[g]iving notice of a foreclosure sale to a consumer as required by the Civil Code does not constitute debt collection activity under the FDCPA."

Feds Score Temporary Shutdown Of Debt Collection Outfit Over Alleged Use Of Imprisonment Threats, Assertions That Minor Kids Would Be Taken Into Gov't Custody, Etc. To Collect On Payday Loans

The Federal Trade Commission recently announced:
  • At the request of the Federal Trade Commission, a U.S. district court shut down a Houston-based debt collection operation that allegedly illegally used insults, lies, and false threats to collect on payday loans – including telling a Virginia woman that she would be arrested and jailed for three years, and would lose her disability payments if she did not pay a $980 debt.

    The court also froze the operation's assets, banned the defendants from engaging in debt collection, and appointed a receiver to take control of the business while the FTC moves forward with the case.

    In addition to using false threats of arrest and imprisonment, the operation allegedly told some consumers their minor children would be taken into government custody; disclosed debts to family members and military superiors; falsely claimed to work hand-in-hand with local sheriff’s offices; and collected bogus late fees and attorneys’ fees, the FTC complaint alleged.

    As part of its continuing crackdown on scams that target consumers in financial distress, the FTC filed a complaint against Goldman Schwartz, Inc., three affiliated companies, and three individuals who own or manage them. The operation did business nationwide collecting debts for numerous payday loan companies, including Ace Cash Express, Advance America, Allied Cash Advance, Checkmate, First Cash Advance, and MoneyMart.

Defendant In N.California Bid-Rigging Scam Probe Says Operators Duped Him Into Investing & He Knew Nothing About Underlying Racket

In Modesto, California, The Modesto Bee reports:
  • People conspiring to rig bids at foreclosure auctions used a Modesto businessman's money without him knowing about the fraud, he claimed this week in a court brief.

    Andrew Katakis, president of California Equity Management, stridently maintains his innocence while asking for help from the government to prove he was duped by those running the scheme. He wants their phone records.

    "Mr. Katakis flatly denies being a part of any conspiracy and seeks to explain how this illegal activity could have occurred under his nose," reads the document, filed Tuesday in federal court in Sacramento.

    Ten people have pleaded guilty to bid rigging at public auctions in San Joaquin County. Katakis is among four others — three investors and one auctioneer — facing trial in November.

    Conspirators obtained dozens of foreclosed homes on the cheap, resold them at higher prices and split profits that should have gone to initial lenders, federal antitrust authorities say.

    Katakis acknowledges doing business with the others but wasn't in on the game, the legal paper says. He needs their phone records to establish patterns "to defend himself by showing how the conspirators used their business relationships to conceal the mechanisms of the conspiracy from him," the document reads.

    "The jury is likely to wonder how such a conspiracy could have been perpetuated with Mr. Katakis' money but without his knowledge," the brief continues.
For more, see Modesto businessman says he was duped in bid fraud (His money used in auction scheme).

Tuesday, February 12, 2013

Feds Hand Out Free Pass To Another Outfit That Allegedly Screwed Homeowners Out Of Upfront Foreclosure Rescue Fees; 'Forensic Audit' Defendants In FTC Suit Score Suspension Of $3.5M Money Judgment Due To "Inability To Pay"

The Federal Trade Commission recently announced:
  • The defendants behind an operation that allegedly preyed on vulnerable homeowners have agreed to settle Federal Trade Commission charges that they lured people into paying $1,995 or more by holding out bogus promises that they could help them avoid foreclosure and renegotiate their mortgages.

    The FTC’s settlement order against the Los Angeles, California-based Consumer Advocates Group Experts, LLC, company owner Ryan Zimmerman, and two other related companies is part of the agency’s continuing crackdown on scams that target consumers in financial distress. It bans the defendants from marketing any mortgage assistance relief or other debt relief products or services. It also prohibits them from making misleading claims about any financial product or service, or any other type of product or service.
  • The settlement also imposes a $3.5 million judgment, which reflects the full amount of consumer injury during the two years before the operation was shut down.

    The judgment will be suspended due to the defendants’ inability to pay. If it is later determined that the financial information the defendants provided to the FTC was false, the full amount of the judgment will become due.
For the FTC press release, see Defendants in Alleged "Forensic Audit" Mortgage Scam Settle FTC Charges (Marketers Held Out Bogus Promise that They Could Help Consumers Avoid Foreclosure; Often Charged Thousands of Dollars).

Couple Who Recently Paid All Cash For What They Thought Was Mortgage-Free Home Now Face The Boot Over Newly-Discovered Lien; Blame Title Company For Botched Land Records Search

In Lehigh Acres, Florida, WZVN-TV Channel 7 reports:
  • A Pennsylvania couple recently purchased their retirement dream home in Lehigh Acres by using an online auction company.

    Ralph and Linda Donely paid $65,000 cash for the home only to discover an eviction notice on their front door months later. "They say we own the house free and clear. I said we can't. We're getting evicted. How can it be ours?" said Lind Donley.

    It turns out a second mortgage on the property surfaced and the home went into foreclosure.

    "The title company didn't do their job at all." said Ralph. The Donley's did have title insurance. While they're expected to get their money back they will not get money for upgrades they made to their home.
For the story, see Couple evicted from dream home.

28 SE Texas Minority Landowners File Suit Accusing County Of Applying Financial Squeeze Thru Higher Tax Assessments To Drive Them From Land Owned By Their Families For Generations

In Richmond, Texas, Courthouse News Service reports:
  • A Texas county is trying to drive minorities from their land to make room for subdivisions by raising their taxes so high they can't afford to pay them, 28 landowners claim in court.

    Lead plaintiff Mary Shavers sued Fort Bend County's judge, its chief appraiser, its tax assessor-collector, the Lamar Independent School District and two law firms in Fort Bend County Court. A county judge in Texas is the equivalent of a county commissioner in other states.

    The plaintiffs claim that since growth took off in the county, the appraised value of minorities' land has increased far more quickly than Anglos' land. "Plaintiffs are African-Americans and/or Hispanics who are citizens and residents of the State of Texas," the complaint states. "They live in the Fulshear area, north of Cinco Ranch, the unincorporated Katy area of Fort Bend County."

    Fort Bend County, southwest of Houston, is one of the nation's fastest-growing counties; its population grew by 4.8 percent, to 532,141, between July 1, 2007 and July 1, 2008, when the tax hikes began, according to the complaint. Its population is about 607,000 today.

    "Much of this impressive growth comes from people flocking to new neighborhoods in the unincorporated Katy area of Fort Bend County," the complaint states. "Cinco Ranch, the Fulshear area and Seven Meadows are among the areas that have posted gains in new home sales during this same period.

    "Plaintiffs have low to modest income and have lived in this area for many generations. Plaintiffs own land/or real property ranging from a lot to over 100 acres which were passed to them from generations.

    "All through these years through their meager and modest income they have maintained and kept the property in their family by paying their property taxes which has always been reasonable all these time and before 2007. "However, beginning in 2007, they began to see a substantial increase in the assessed value of their property and their property taxes sky rocketed." Plaintiffs say they can't afford to pay the higher taxes.

    "Plaintiffs have observed that before the growth came to the Fulshear area, sometime before the year 2006 and prior, land owned by minorities valued by Fort Bend County Appraisal District was at $4,000-$4,500 per acre, while land owned by whites were around $20,000 per acre; growth hit and the value of minority's property jumped to $41,000 an acre while whites $22,000-$23,000 per acre," the complaint states.

    "Through investigation, plaintiffs learned that all similarly situated property in the area of the county was not being evaluated equally. The plaintiffs further observed that the property assessed values of their raw land were much higher than similarly situated land owned by whites.

    "Interestingly, plaintiffs have observed the building of subdivisions hit the Fulshear area in the early part of year 2007. "Further, plaintiffs have observed that during this time, delinquent tax collection actions were intensified to drive them from the land they have lived in for generations in what seemed designed to make room for the new subdivisions."

    The plaintiffs' attorney, Diogu Kalu Diogu II, told Courthouse News Service his clients' land has been targeted by developers. "The developers want the area where the African-Americans are living right now. They want to take it over and put subdivisions. I think the issue is they made (the taxes) so high so they could kick African Americans out of that place," Diogu said.

    Diogu said Fort Bend County increased the assessed value of the plaintiffs' properties without notifying them. "For example, on more than one occasion, one or more of the plaintiffs went to the office of Fort Bend Central Appraisal District to protest and were refused a hearing, claiming the property was not in their name, even though the office knew that they were heirs to the estate and the rejections were tacit admissions by the Appraisal office that they knowingly sent increased assessed value notices required by law to purported property owners they knew or should have known were deceased," the complaint states.
  • The plaintiffs say in the complaint that in some instances they set up payment plans with law firms the county hired to collect property taxes, but when they fell short, "no matter how slightly," their land was foreclosed on.

    They seek a restraining order to stop foreclosure and sale of their land, and damages for violations of civil rights and due process, intentional infliction of emotional distress, conspiracy, violations of the Texas Tax Code and negligent supervision and training.

Monday, February 11, 2013

3rd Circuit: Not Necessary To File TILA Lawsuit Within Three Years To Exercise Loan Rescission Rights; Firing Off Letter To Mortgage Holder Invoking Claims Enough To Satisfy Statute

Forbes reports:
  • A recent decision by the Third Circuit Court of Appeals gives borrowers an indefinite period to rescind their home-equity loans, complicating life for lenders and setting up a conflict that may have to be resolved at the Supreme Court.

    Home buyers normally have three days to rescind a loan, and after that mortgages to purchase a property can’t be reversed. But federal law allows other types of loans to be rescinded for up to three years if the borrower can prove violations of the Truth in Lending Act, such as an inaccurate interest rate or undisclosed finance charges. If they prevail — and have enough cash to repay the loan principal — borrowers can get a refund of their interest and fees.

    Most courts, including the Ninth Circuit Court of Appeals, have held that borrowers who want to do this also must sue the bank within the three-year deadline.(1)

    But the Third Circuit, in Sherzer vs. Homestar, ruled that borrowers only have to send a letter of notice to the bank. They can sue whenever they want after that, leaving a potential cloud on the lender’s claim against the property that can only be resolved if the lender gets a declaratory judgment denying the recission.

    The ruling released Tuesday follows a similar decision by the Fourth Circuit(2) and gives borrowers another tactic for delaying lenders that want to seize the collateral backing their loan.

    “If you’re having trouble making payments and worried about foreclosure, you could fire off letter to the lender saying you believe there was a material TILA violation,” said Martin Bryce Jr., a partner with Ballard Spahr in Philadelphia. “Then you get to sit back and hold that in your pocket.”
  • Under the reasoning adopted by the Third and Fourth Circuits (based in Philadelphia and Richmond, respectively) borrowers don’t need to worry about whether they have the cash to pay off the loan, however. The smartest course is to fire off a letter demanding recission within three years and keep it on hand in case they get in trouble. Then it becomes a bargaining chip with a lender who’s already facing a certain loss on the loan. The question becomes how much more the lender wants to spend on legal fees to gain clear title to the collateral.

    Other borrowers, of course, pay the price. Look for this case, or one like it, to percolate up to the Supreme Court.
For more, see Court Decision Gives Lenders A Headache, Borrowers An Ace In The Hole.

For the ruling, see Sherzer v. Homestar Mortgage Services, No. 11-4254 (3d Cir. February 5, 2013).

(1) See Rosenfield v. HSBC Bank, USA, 681 F.3d 1172, 1188 (10th Cir. 2012); Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1172 (9th Cir. 2003); Large v. Conseco Fin. Servicing Corp., 292 F.3d 49, 54–55 (1st Cir. 2002).

(2) Gilbert v. Residential Funding LLC, 678 F.3d 271, 277–78 (4th Cir. 2012). See also Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139–40 (11th Cir. 1992) (explaining that rescission occurs automatically upon notice).

Note: The binding effect of these federal appeals court rulings are limited to all lower Federal courts located in the states within the appeals court's jurisdiction, but may be considered for its persuasive effect by other courts. To find out which Federal appeals court has jurisdiction over appeals from the lower Federal courts in your state, you can check the U.S. Circuit Court of Appeals Map.

Banksters Score Another Big Win As Florida Supremes Say Current Procedural Rules Allow Foreclosure Mills To Use Voluntary Dismissals To Dodge Accountability When Bagged By Homeowners For Using Fraudulent Docs In Foreclosure Actions

In Tallahassee, Florida, Reuters reports:
  • Florida's highest court has ruled a homeowner cannot re-open a voluntarily dismissed foreclosure case despite allegations that the bank falsified documents, giving a win to banks in a closely watched ruling that could have affected thousands of cases in a state hit hard by the foreclosure crisis.

    The Florida Supreme Court had been asked to decide whether banks accused of using fraudulent documents to file foreclosure lawsuits could dismiss the cases, and then later re-file them with different paperwork.

    The case involves a foreclosure brought against homeowner Roman Pino in 2008 by Bank of New York Mellon Corp , the trustee for the security that owned his loan. The mortgage was serviced by Bank of America .

    Pino asked the court to dismiss the case, arguing that the documents filed by the bank and its attorneys had been fraudulently backdated. The case stems from the robo-signing scandal, in which banks and law firms allegedly signed off on foreclosure documents without verifying their accuracy.

    The documents in Pino's case had been signed by an employee of the now-defunct David Stern law firm, one of the biggest foreclosure law firms in the country.

    Before the court could rule, BNY Mellon voluntarily dismissed the case. The foreclosure was later re-filed, using different documents. Pino's lawyer asked the court to re-open the first case, saying the bank should not have been allowed to bring the same case when it committed fraud the first time around.

    Before the case reached the Florida Supreme Court, Pino and BNY Mellon reached a confidential settlement. The high court decided to hear the case anyway to address what it said was a key policy question that has vexed courts across the state - whether or not voluntary dismissals can be reversed when there is an allegation of fraud.

    On Thursday, the Florida Supreme Court decided that it could not, unless the plaintiff - in this case, the bank - had obtained some kind of affirmative relief, and the dismissal had kept the fraud from being remedied by the court.

    However, the court acknowledged the "multiple abuses that can occur from fraudulent pleadings," and asked Florida's bar association to review civil litigation rules to determine if changes should be made to address the issue.

    A lawyer for Pino, Amanda Lundergan of the Ice Firm, said she believed the ruling "will have the unintended effect of encouraging underhanded tactics" by plaintiffs in foreclosure and other cases.

    A spokesman for BNY Mellon, Kevin Heine, declined to comment. Bank of America did not immediately return a request for comment Friday evening.

    The case has been closely watched by banks and homeowners. An unfavorable ruling for the banks could have exposed them to severe financial liability in the state.
Source: Florida court finds for bank in major foreclosure case.

For the ruling, see Pino v. Bank of New York Mellon, No. SC11-697 (February 7, 2013).

Bank's Lien Wiped Out In Tax F'closure; 'Lack Of Notice' Claim Kiboshed When It Failed To Include Its Address On Recorded Docs; Left Holding The Bag Despite Assessing County's Failure To Review Court File In Bank's Earlier-Dismissed F'closure Action For Current Mailing Address

Wisconsin Bar News reports:
  • A bank’s failure to list its address on mortgage documents filed with the register of deeds means a default foreclosure judgment will stand.

    In Juneau County v. Associated Bank, N.A., 2012AP1304 (Jan. 31, 2013), a state appeals court ruled that Juneau County was not required tolook beyond the record in the office of the register of deedsto find the bank’s address for notice purposes.

    That is, a three-judge panel ruled that Juneau County complied with Wis. Stat. section 75.521(3), which sets out the notice requirements counties must follow to commence tax lien foreclosure proceedings against property owners and secured creditors.

    Sebastian Madej used Associated Bank to finance the purchase of two parcels of land in Necedah, located in Juneau County. The bank recorded its mortgages with the county register of deeds, but neither mortgage listed an address for the bank.

    In subsequent years, Madej failed to pay property taxes. In 2008, the bank mailed a tax payment to satisfy Madej’s tax debt for 2003 and 2004 to the county treasurer.

    The cover letter accompanying the check listed the bank’s address in Green Bay. In 2009, Madej defaulted on the notes secured by the mortgages.

    The bank filed foreclosure actions, and recorded a lis pendens for each lot. The recorded warnings did not list an address for the bank. However, they listed the case numbers for the foreclosure actions, and the complaints listed the bank’s address.

    In 2010, the bank obtained default judgments of foreclosure on Madej’s property, and sent payments to the county treasurer for some delinquent tax years, but not all. The treasurer sent tax receipts to the bank’s address in Green Bay.

    Before the sheriff’s sale however, the bank settled with Madej and moved to vacate the foreclosure judgments. It also recorded discharges of lis pendens.

    Soon after, the county commenced tax lien foreclosure proceedings against 94 parcels, including the Madej parcels, under section 75.521. The county retained a title insurance company to ascertain the names of owners and secured creditors for notice purposes.

    It listed Associated Bank, a secured creditor, as having an “unknown address” because the bank’s address could not be found in recorded documents with the register of deeds. The county published a notice of affected parcels in the official newspaper.

    Associated Bank did not appear or file an answer to the county’s foreclosure action against the Madej properties, and default judgments of foreclosure were entered.

    The bank moved to vacate the judgments, arguing that the county did not comply with notice requirements of section 75.521(3). But the appeals court panel affirmed the circuit court’s ruling that Juneau County met the notice requirements.

    [T]he County was not required to expand its search for the Bank’s address beyond what was ascertainable directly from the records relating to the two affected lots located at the office of the register of deeds,” wrote Judge JoAnne Kloppenburg.
Source: County Complied with Notice Requirement for Tax Lien Foreclosure.

For the court ruling, see Juneau County v. Associated Bank, N.A., Appeal No. 2012AP1304 (Wi. App. January 31, 2013).

Sunday, February 10, 2013

Convicted Felon Invokes Race Card In Failed Attempt To Dodge The Boot From Vacant Home He, Fiance Allegedly Hijacked; Bank-Stiffing Owner Didn't Realize Lender Never Filed Foreclosure, Leaving Him On Title

In Brighton, New York, WHAM-TV Channel 13 reports:
  • The family moved into 44 Meadow Drive last March. The ranch house, which had been vacant for two years, sits at the end of a cul de sac of modest single-family homes. “They mixed with us at first. They talked of the children being enrolled in our schools,” said neighbor Meg Northrop. “Why would we doubt that?”

    Doubts set in when neighbors didn’t see any record of a sale in the newspaper. “We couldn’t figure out who they bought it from and how they bought it,” said Northrop. “They would show up, drop off a bunch of stuff and then we wouldn’t see them for days,” said neighbor Ann Vitale.

    Neighbors contacted the home’s owner, William Good. He stopped paying his mortgage after he moved out. Good didn’t think he owned the property anymore, but neighbors discovered the bank had not started foreclosure proceedings. That meant Good was still in control of the property. He told neighbors he did not authorize anyone to live there.

    Neighbors called police to report the family was trespassing. Police took a report, but did not make any arrests. Because the family had been living in the house for some time and claimed rights to the property, they were considered squatters under the law and had to be evicted in civil court. Good gave the neighbors permission to hire a lawyer to represent him in an eviction proceeding.
  • The Family

    Santashia Reed and her fiancé, Christopher Newton, moved into 44 Meadow Dr. with four of Reed’s children. “This has nothing to do with squatting. This is pure discrimination,” said Reed. Reed and Newton believe the neighbors targeted them because they’re black. They said the neighbors called them the “N” word and sent them racist messages. “We’re honest people. I’ve never been in trouble before,” said Reed. “It’s just unfortunate that I was born the wrong skin color.”

    Newton said he found the house by driving around. He knew it was vacant and researched its ownership. Newton said he called Good, who told him he didn’t want anything to do with the property. Newton said he contacted the bank holding the mortgage, which told him it couldn’t sell him the house because it had not started the foreclosure. Newton said he went back to Good, who gave him the keys and permission to move in. Newton said he had an understanding with the bank and Good he would buy the house when the bank took possession.

    Why would Good give away his house? “He had already lost it,” said Newton. Newton admitted he put no money down, had nothing in writing and paid no taxes on the property.

    “Based on my conversation with Mr. Good and with the bank, and seeing his interest in the property was basically nonexistent, there was no problem with it,” said Newton. “Had the neighbors just been neighbors, this conversation wouldn’t be happening.”

    Newton served more than 10 years in state prison for robbery, burglary, criminal possession of a forged instrument and escape. Reed and Newton expressed anger Newton’s parole was violated after neighbors contacted police.

    13WHAM News contacted Good. He said he’d never met Reed and Newton or gave them permission to move into his house. “That’s something they made up,” Good said. “They did their homework.” “They were pure squatters,” said Samuel Dispenza, Good’s attorney.

    The Eviction

    The court proceeding took several months. After considering evidence, including testimony from Reed and Good, a Brighton Town judge ordered the family evicted.

    Sheriff’s deputies served the notice on Tuesday. The neighbors paid for a moving truck, locksmith and deputies, all required for an eviction.

    The family had moved out the night before. The house was in shambles. Appliances were removed. There was a hole in the living room floor. Clothes and mattresses were scattered in rooms. Reed and Newton said they removed items they installed in the house.

Owner Of Vacant, $1M Home In Foreclosure Says His Title Was Hijacked Thru Forgery; Current Occupant Says He Rented Premises, But Can't I.D. Who He Did Business With; Coral Gables Cops, City Attorney Left Befuddled

In Coral Gables, Florida, The Miami Herald reports:
  • Police are investigating whether a family allegedly squatting in a million-dollar Coral Gables house forged a lease they turned over to city officials Wednesday.

    Meanwhile, the owners of the rambling four-bedroom house at 601 Sunset Dr. face a $500-a-day fine unless they secure the house and properly register the vacant house, said Craig Leen, the attorney for the city of Coral Gables.

    Since September, when police were called to the house by a tenant renting a room, city officials have suspected the family was squatting in the house. The house had been empty and in the midst of a foreclosure after the owners divorced five years ago. Owner Damian Echauri said his wife was given the majority of the house in a settlement and was supposed to sell it, but when she couldn’t, she stopped paying the mortgage.

    In November, Echauri said he discovered Robert Ramos, 33, his wife Ana Alvarez, 52, and Alvarez’s son, Jonathan, 27, living in the house when his son spotted an ad on Craigslist listing a room for rent.

    Echauri called police and confronted the family at the house. But police were unable to determine who rightfully belonged in the house and told Echauri to seek eviction.

    Frustrated and worried over spending money on a house that was already in foreclosure, Echauri said he didn’t know what to do. “I don’t want to evict people when I know they’re trespassers,” he said. “Why should I go to the expense?”

    But Leen said if Echauri comes to the city and proves the family is trespassing, the police can take action. “If he can show they have absolutely no right, no lease, he can come to the police,” Leen said.

    The house’s murky ownership is furthered complicated by a deed recorded with the clerk of court in March 2012 by a partnership, Prescott Rosche, indicating Echauri sold the house to the group. Echauri said his signature on the deed is forged.

    A spokeswoman for Chase, which paid the 2012 tax bill for $20,460.15, said Wednesday that bank records indicate Echauri is still the property owner. A foreclosure action has been started, she said, but has yet to conclude.

    When contacted by Code Enforcement Officer Michael Kattou Tuesday, the family living in the house vowed to produce a lease. But the document they turned over Wednesday to the city included signatures belonging to Echauri and his wife, Nadia Casamayor, that do not match those on notarized records, Leen said.

    The city assigned a Coral Gables detective to investigate the lease late Wednesday, said acting Police Chief Scott Masington. The family living in the house, who has insisted they were duped by a landlord they cannot name, told Kattou they planned to leave by the weekend, Leen said.
For the story, see Police are investigating possible fraud in squatters’ case in Coral Gables (The property owners face a $500-a-day fine from the city of Coral Gables).

WPB Woman Claims 'Adverse Possession' Defense After Being Collared By Cops On Grand Theft, Fraud Charges For Allegedly Hijacking Neighbor's Vacant Home In Foreclosure, Subsequently Pocketing $13K+ From Unwitting Renters Thru Craigslist Ad

In West Palm Beach, Florida, The Palm Beach Post reports:
  • A West Palm Beach woman is accused of commandeering her neighbor’s empty and foreclosed-upon home, renting it through Craigslist and collecting more than $13,000 in rent before the owner discovered the ruse and called the cops.

    Nathalie Heil, 30, was booked into the Palm Beach County Jail on Friday. Facing charges of grand theft and fraud, she was released Saturday after posting $6,000 bond.

    But Heil said she believes she has ownership of the house, stating that she filed what’s called “adverse possession” papers. The arcane Florida law, created hundreds of years ago, states that if a person claiming adverse possession stays in a home for seven years, paying taxes and caring for the property, they can take permanent ownership.

    Andre De Palma Barbosa, the 23-year-old Brazilian now known as the “Boca Raton squatter,” used adverse possession to move into an empty foreclosed 7,000-square-foot mansion in Boca Raton in December.

    As for Heil, she said the owner of the property at 314 Vallette Way abandoned the home more than six years ago. She assumed that as soon as she filed her papers with the courts, the property was hers. “Legally, I thought it was right,” she told the Palm Beach Post. Heil said she’s received death threats since the story first ran on the Post’s website Tuesday afternoon. “I’m freaking out,” she said. “I have a full-time job and I’m a single mom.”

    West Palm Beach police were tipped off to the situation Friday morning, when they got a call from Kelly Keefner, who manages the 314 Vallette Way property for her father-in-law, Juan Cedeno. Keefner told police the home is in foreclosure, and for that reason she had not checked on the property in the last eight months. She said when she stopped by in late January, the place looked lived-in.

    Keefner returned to the home with her husband and met April Wehle, 24, and Talia Williams, 25, who said they had been renting the home for $1,500 a month since mid-June. The women said they found the place through a Craigslist ad placed by Heil, who lives next door at 312 Vallette Way.

    The women told police they’d paid a total $13,500 in rent by check to Heil and spent another $500 to make various repairs, according to Heil’s arrest report. The home sits south of downtown and just blocks south of the Mango Promenade historic district, tucked between S. Dixie Highway and S. Olive Ave. south of Okeechobee Boulevard.

    After confirming Cedeno’s ownership — the county property appraiser lists him as the owner of record since 2007 — police said they confronted Heil when she went to the home to collect rent. Heil told police she had gone to the county courthouse and “completed paperwork giving her possession of the residence.”

    Police said they found no such paperwork, and property records name Cedeno as the owner. After her arrest, Heil said she was told to “show up for court with the paperwork.”

Cops, Local Prosecutor Finally Conclude That Case Of Mansion-Squatting, Adverse Possession-Claiming Crackpot Merits Trespassing Probe, Assist BofA In Reclaiming Possession Of $2.5M Vacant Foreclosure

In Boca Raton, Florida, WTVJ-TV Channel 6 reports:
  • South Florida's infamous squatter is squatting no more. On Thursday police moved in to evict 23-year-old Andre Barbosa from a Boca Raton mansion – but said he was no longer there.

    Bank of America owns the foreclosed mansion, worth $2.5 million. Investigators said Barbosa used an obscure process called “adverse possession” to occupy the home. Bank of America sued him.

    Boca Raton police conducted a trespassing investigation on Thursday, to make sure that nobody was inside, and Barbosa was not.

    From a police department's perspective, we needed a legal foundation to take some action,” Police Chief Dan Alexander said. “We were able to determine with the state attorney after extensive legal research that there was a basis for us to conduct an investigation.”

    Neighbors said it was around Christmastime when Barbosa forced his way into the home and started making it his own, with friends coming and going.
For the story, see Police Move in To Evict Squatter From Boca Raton Mansion, But Don't Find Him There (Andre Barbosa, 23, used "adverse possession" to occupy the home, investigators said).