December 13, 2013

Michigan Court Finds That Defendants Were Not Acting Under Color of State Law

By Ebube Okoli

The court in deciding El-Jabazwe v. Wells Fargo Home Mortg., 2013 U.S. Dist. LEXIS 149854 ( E.D. Mich. Oct. 18, 2013) denied the plaintiff’s motions and granted the defendants’ motions.

Plaintiff’s complaint listed the following Counts: 42 U.S.C. §1983 (Count I); 42 U.S.C. § 1985(3) (Count II); 42 U.S.C. § 1983: refusing or neglecting to prevent (Count III); Malicious Abuse of Process (Count IV); 18 U.S.C. §§ 241 and 242 (Count V); Intentional Infliction of Emotional Distress (Count VI); and Mail Fraud (Count VIII). The Court dismissed Plaintiff’s state-law claims (Counts IV and VI) on March 6, 2013.

The court found that the plaintiff’s argument under Fed. R. Civ. P. 12(c) rested solely on conclusory statements. The court found plaintiff’s motion for summary judgment is similarly deficient. The court noted that plaintiff wholly failed to meet the evidentiary burdens required under Fed. R. Civ. P. 12(c) and 56(a), and thus the court denied both of Plaintiff’s motions. Lastly, the court found that even when construing the facts in a light most favorable to the plaintiff, Counts I and III must be dismissed against the defendants, as they were not acting under color of state law.

Consequently, pursuant to E.D. Mich. L.R. 7.1(f)(2), the court ordered that the motions be resolved on the briefs submitted, without oral argument. The court then denied the plaintiff’s motions and granted the defendants’ motions.

December 13, 2013 | Permalink | No Comments

December 12, 2013

Reiss on New Mortgage Rules

By David Reiss

The Redding Record Searchlight interviewed me in Experts Worry New Loan Standards, Lending Limits Could Hurt Housing Market. It reads in part,

New mortgage qualification rules and lower FHA lending limits that take effect next year threaten to slow the housing market’s recovery.

*     *     *

David Reiss, a law professor at Brooklyn Law School in New York, said there is nothing wrong with tying the price of a loan to the risk.

“There is some talk that if it’s not a Qualified Mortgage loan, the cost for the creditor or lender will be higher and the cost will be passed on to the homeowner. That will probably be true,” Reiss said.

But Lawrence of Silverado Mortgage said just because one in five loans written today wouldn’t pass Qualifying Mortgage muster doesn’t necessarily suggest the loan would not be approved and closed under the new standards.

“Making a minor adjustment such as using a different interest rate and closing cost combination may allow a loan to meet the standard that it wouldn’t otherwise,” Lawrence said.

Lawrence knows there will be some loans for which an alternative can be found to resolve a Qualifying Mortgage issue.

“But I think most buyers start with getting pre-qualified before they find the home they’re interested in purchasing,” Lawrence said.

December 12, 2013 | Permalink | No Comments

Missouri Court Dismisses Predatory Lending & TILA Claims

By Ebube Okoli

The court in deciding Fleming v. Bank of Am., 2013 U.S. Dist. LEXIS 150758 (W.D. Mo. Oct. 21, 2013) found the plaintiff’s argument and complaint to be filled with legal conclusions and disjointed, conclusory allegations. The court noted that the complaint frequently referred simply to “Defendant” or “Defendants” with no indication as to which specific defendant was implicated, and sometimes seemed to confuse “Plaintiff” with “Defendant.”

Plaintiff asserted the following eight claims: (1) predatory lending and violations of the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601 et seq.; (2) servicer fraud; (3) violations of the Home Ownership and Equity Protection Act (“HOEPA”)’s amendments to TILA, §§ 1639 et seq.; (4) violations of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601 et seq.; (5) breach of fiduciary duty; (6) identity theft; (7) civil liability under the Racketeering Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964; and (8) quiet title to real property.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants moved to dismiss Fleming’s complaint for failure to state a claim. After considering the plaintiff’s arguments the court ultimately granted defendants Bank of America and MERSCorp Holdings, Inc.’s motion to dismiss.

December 12, 2013 | Permalink | No Comments

Michigan Court Dismisses Claim Seeking $4,500,000.00 in Damages

By Ebube Okoli

The court in deciding Kemp v. Resurgent Capital Servs., 2013 U.S. Dist. LEXIS 150713 ( E.D. Mich. Oct. 21, 2013) ultimately dismissed the plaintiff’s claim and request for $4,500,000.00.

The complaint made the following claims: Count I lack of standing, Count II and III common law fraud and injurious falsehood, Count IV violation of Fair Debt Collection Practices Act, Count V violation of Truth in Lending Act, Count VI violation of UCC 3-302, Count VII negligent undertaking, and Count VIII negligent misrepresentation.

The plaintiff essentially claimed that defendants wrongfully foreclosed on her property. Due to this wrongful foreclosure, she sought a declaration that she was the rightful owner of the property. She further sought a money judgment in the amount of $4,500,000.00.

The court considered the plaintiffs arguments and ultimately dismissed her claim.

As to Count I, the court found that this claim failed against Quicken Loans for the simple reason that Quicken Loans had no interest in either loan and had no role in the foreclosure proceedings. As to the remaining counts, the court found that Quicken Loans was correct in that the plaintiff’s claims were barred by the applicable statute of limitations.

December 12, 2013 | Permalink | No Comments

December 11, 2013

Michigan Court Dismisses Fair Debt Collection Practices Act Claim

By Ebube Okoli

The court in deciding Mullins v. Fannie Mae, 2013 U.S. Dist. LEXIS 150718 (E.D. Mich. 2013) granted the defendant’s motion to dismiss.

The plaintiff brought six causes of action: Count I—Fraudulent Misrepresentation; Count II—Estoppel; Count III—Negligence; Count IV—Violation of the Regulation of Collection Practices Act; Count V—Violation of the Fair Debt Collection Practices Act; and Count VI—violation of the Michigan Consumer Protection Act.

The court dismissed the plaintiff’s fraud claims because the plaintiff had not provided a signed writing by an authorized representative of Fannie Mae regarding a promise to modify her loan. The court noted that even if she had stated a claim of fraud, her claim must be dismissed.

With regards to the plaintiff’s negligence claims, the court found that Fannie Mae had no duty to review, thus there could be no breach.

Under Michigan law, the Regulation of Collection Practices Act (“RCPA”) governs the collection practices of certain persons. However, after considering the plaintiff’s argument, the court found that the statute did not authorize a claim based upon a plaintiff’s reluctance to dispute the validity of a debt because of the timing of the validation. Citing similar grounds, the court ultimately dismissed the remaining claims.

December 11, 2013 | Permalink | No Comments

Reiss on Watt Confirmation

By David Reiss

Law360 interviewed me about the Senate confirmation of Mel Watt as the Director of the Federal Housing Finance Agency in Fannie, Freddie’s Footprint Could Grow Under New FHFA Head. The article reads in part,

The U.S. mortgage industry is in for a sea change as Rep. Mel Watt, D-N.C., takes the helm of the Federal Housing Finance Agency, experts say, predicting Watt will seek to expand Fannie Mae and Freddie Mac, veering sharply from his predecessor’s plans but lining up more closely with President Barack Obama’s.

The confirmation came Tuesday in a 57-41 vote after months of delay ended by Senate Democrats’ implementation of the so-called “nuclear option” eliminating the filibuster of presidential nominees. Senate Republicans had expressed concern about the choice of a politician like Watt — as opposed to an academic or economist — to head the agency.

Members of the real estate finance community are also divided about whether Watt’s confirmation will have a positive or negative impact on the industry, but most agree that a major change is ahead.

“I think Watt, as director, could end up having a very big impact both in terms of reversing some changes that have been implemented, and also taking the agency in a very different direction,” said David Reiss, a professor at Brooklyn Law School.

Since 2009, interim FHFA head Ed DeMarco has made an effort to shrink the footprint of the regulator and its government-sponsored enterprises, Fannie and Freddie, in the U.S. residential mortgage market.

DeMarco faced pushback in these efforts from industry groups and lawmakers, causing him to backpedal a bit in November when the FHFA announced that it would hold off on reducing the size of mortgages that Fannie and Freddie can guarantee for at least the first half of next year.

Obama also did not share DeMarco’s ideology, but experts believe Watt’s plans for the GSEs are much more in line with those of the president. He appears cautious about allowing Fannie and Freddie to back away from the market entirely and may in fact favor policies that will increase the GSEs’ role in the mortgage market.

“My guess is that Watt will further enmesh Fannie and Freddie in the operations of the mortgage markets, whereas DeMarco was actually shrinking their footprint,” Reiss said.

*     *     *

The difference between the short-term and long-term impacts of Watt’s expected actions will be significant, experts say.

DeMarco’s moves made short-term waves, but supporters believed the aim was long-term equilibrium and an eventual balance of public and private capital in the mortgage market. Watt may have more potential for positive short-term results, but there will still be a question as to whether this will translate into a stable market for the next generation, Reiss said.

“Often when people are talking about government intervention, they want help for problems now, but they’re also setting up the rules of the game for once the crisis has passed,” he said.

December 11, 2013 | Permalink | No Comments

December 10, 2013

Imposing Order on Recording Chaos

By David Reiss

Dale Whitman has posted A Proposal for a National Mortgage Registry: MERS Done Right. This is great timing because he will be touching on some of the issues raised in this article in tomorrow’s webinar. His proposal for a national mortgage registry also shares things in common with elements of Adam Levitin‘s recent proposal.

Whitman’s abstract reads:

In this Article, Professor Whitman analyzes the existing legal regime for transfers of notes and mortgages on the secondary market, and concludes that it is highly inconvenient and dysfunctional, with the result that large numbers of market participants simply did not observe its rules during the huge market run-up of the early and mid-2000s. He also considers Mortgage Electronic Registration System (MERS), which was designed to alleviate the inconveniences of repeatedly recording mortgage assignments, but concludes that it was conceptually flawed and has proven to be an inadequate response to the problem. For these reasons the legal system was ill-prepared for the avalanche of foreclosures that followed the collapse of the mortgage market in 2007, and continues to be beset by litigation and uncertainty. This Article then provides a conceptual outline for an alternative National Mortgage Registry, which would supplant the present legal system and would provide convenience, transparency, and efficiency for all market participants. He concludes with a draft of a statute that could be enacted by Congress to create such a registry.

The article concludes:

A national mortgage loan Registry structured along the lines outlined here would resolve all of the major legal problems that beset the secondary mortgage market today. To be specific, the following problems would be put to rest.

1. The lack of clarity in the distinction between negotiable and nonnegotiable notes that exists today would become irrelevant for purposes of loan transfer. Negotiable and nonnegotiable notes would be treated exactly alike and would be transferred in the same manner.

2. The need to physically deliver original notes in order to transfer the right of enforcement – an extremely burdensome and inconvenient requirement for negotiable notes in today’s market – would be eliminated. Transfers would take place electronically with assurance that they would be recognized by local law in all jurisdictions.

3. The necessity of recording mortgage assignments in local recording offices would be eliminated. MERS was designed to remove the need for such assignments (except at the point when foreclosure was necessary), but the national Registry would accomplish this without the artificiality and con-fusion engendered by MERS’ “nominee” status.

4. Borrowers would be protected against competing claims by purported mortgage holders because the Registry’s records of loan holdings would be conclusive. Whether in cases of loan modification, payoff and discharge, approval of a short sale, or foreclosure, a borrower would know with certainty whether a purported holder’s claim to the loan was authentic, and whether its purported servicer was authorized to act.

5. All foreclosures, both judicial and non-judicial, could be conducted with assurance that the correct party was foreclosing. The Registry’s certificate could be recorded under state law and become a part of the chain of title of property passing through foreclosure, thus permitting future title examiners to verify that the foreclosure was conducted by the person authorized to do so. Concerns of title insurers about the validity of titles coming through foreclosure, currently a major worry, would be largely eliminated.

6. The current confusion and litigation about separation of notes from their mortgages, and about what proof is needed to foreclose a mortgage, would be brought to an end. The Registry’s certificate would provide all of the documentary evidence necessary to foreclose.

7. The holder in due course doctrine, with its potential for unfair harm to borrowers, would probably disappear in the context of mortgage loans as secondary market participants abandoned the practice of physical delivery of mortgage notes.

The system for transferring mortgage loans with which we are saddled today is a shambles. The result has been enormous uncertainty and likely huge financial loss for investors, servicers, and title insurers. It is time for Congress to act to create a sensible, simple, and efficient alternative. (68-69)

Many (including Brad Borden and I) have argued that the current recording system is horribly flawed. It is unclear whether there is sufficient political will to engage in a structural reform at this time. If there is not, expect to see another foreclosure mess once the current one has played itself out.

December 10, 2013 | Permalink | No Comments