June 16, 2014
Ohio Appeals Court Reverses Summary Judgment in Favor of Bank as Genuine Issue of Fact Existed as to Whether the Bank held the Note
The court in deciding U.S. Bank N.A. v. Kamal, 2013-Ohio-5380 (Ohio Ct. App., Mahoning County, 2013) reversed and remanded the lower court’s ruling. The court decided that there were genuine issues of material fact as to whether U.S. Bank was the holder of the note or mortgage when the complaint was filed and as to whether U.S. Bank complied with the default provisions in the note and mortgage. Therefore, the grant of summary judgment in U.S. Bank’s favor was reversed and the matter was remanded for further summary judgment proceedings.
Defendants-appellants appealed the decision of the lower court, which granted summary judgment and issued a decree of foreclosure for U.S. Bank National Association. Three issues were raised; the first was whether there was a genuine issue of material fact as to whether U.S. Bank complied with the notice of default provisions in the note and mortgage. The second issue was whether U.S. Bank was a real party in interest when the foreclosure complaint was filed. The third issue was whether the trial court should have struck certain evidence that U.S. Bank used to support its request for summary judgment.
This court ultimately held that a genuine issue of fact existed as to whether the bank was the holder of the note when the complaint was filed, as the record was devoid of any evidence proving the date on which the bank became the holder. There was also a genuine issue of fact as to when the mortgage was assigned, as the assignment contained information not known on the date the mortgage was executed and the only other logical date was the date the assignment was recorded, which occurred after the complaint was filed. Additionally a genuine issue of fact existed as to whether the bank complied with the notice of default and acceleration provision, as there was no evidence as to how the bank notified the debtor as the acceleration.
Ultimately, the lower court’s grant of summary judgment was reversed and the matter was remanded for further summary judgment proceedings.
June 16, 2014 | Permalink | No Comments
Reiss on History of Eminent Domain
The Orlando Sentinel quoted me in History also Parts City, Church in Stadium Dispute (sign in required). It reads in part,
It’s been said that you can’t fight City Hall. Still, tiny Faith Deliverance Temple is gonna try. The city of Orlando covets its property — now the final piece of the two square blocks upon which will bloom a $110 million soccer savanna for the Orlando City Lions to roam. Church officials balked. So city officials filed suit to seize the land. Goliath shoved. Now, David’s grabbed a sling.
The church has enlisted a Jacksonville property rights law firm to fight for its right to stay put. Any way you slice it, the church’s hopes rest with a judge who, in two previous eminent domain cases involving the soccer stadium, deemed that it fits the definition of a public use.
City Hall considers the stadium manna from Major League Soccer: It’ll nourish the greater community with economic development, jobs and tourism. Pastor Kinsey Shack, meanwhile, simply says her largely black flock “does not want and has not wanted to sell its property.”
It would be easy to reduce the dispute to simplistic terms: Seeing the writing on the wall, the church has fallen prey to the sin of avarice. Orlando offered $1.5 million for property worth less than half that, and most recently upped the ante to $4 million. Church leaders countered with $35 million (but later lowered it to $15 million).
To church officials, it’s simply a matter of fairness. In 2007, Orlando plunked $35 million in cash and other sweeteners into First United Methodist Church’s collection plate. It needed the land for the Dr. Phillips Center for the Performing Arts, and paid a small fortune to the largely white downtown church. In any case, church officials aren’t sweating the optics. Maybe that’s because money isn’t necessarily the root of its revolt.
An alternative motive seems rooted in history, personal and collective. In the late ’70s, Robert Lee Williams moved his wife Catherine, their four kids, and the church he’d incorporated in 1969 to West Church Street in Orlando’s mostly black Parramore neighborhood.
The teeny flock grew as he saved and collected souls through revivals. In the early ’80s, they moved to a West Church Street warehouse. With member donations, Williams bought the property, and largely through the sweat of local day laborers, they moved into a new church home in 1996. Williams died in 1997, but his wife carried on, before passing the mantle to Shack six years ago. For the Williams family, divesting the property divorces them from their community, their history.
Yet, through government strong-arming that very thing is — for blacks in particular — a sordid history as old as America. That’s according to Mindy Fullilove, a Columbia University clinical psychiatry professor in a recent report on the devastation eminent domain wreaks on black communities. “Eminent domain has become what the founding fathers sought to prevent: a tool that takes from the poor and the politically weak to give to the rich and politically powerful.”
David Reiss, a Brooklyn Law School professor, noted in an email that since early last century “local governments have a long history of using eminent domain in black communities, from so-called ‘slum clearance’ to ‘urban renewal’ to ‘blight removal.'”
June 16, 2014 | Permalink | No Comments
Promoting Affordable Housing, and the Winner Is . . .
I had blogged about a competition to generate ideas to lower the cost of affordable housing, the Minnesota Challenge to Lower the Cost of Affordable Housing. I was pretty excited about this challenge and was happy to see that a winner has been chosen: the University of Minnesota’s Center for Urban and Regional Affairs (CURA).
CURA’s winning proposal is here. Basically, they
June 12, 2014 | Permalink | No Comments
June 11, 2014
NY Court Rejects Lack-of-Standing Claim
The court in deciding HSBC Bank USA v Sage, 112 A.D.3d 1126 (N.Y. App. Div. 3d Dep’t 2013) affirmed the lower court’s decision dismissing the defendant’s lack of standing claim.
HSBC Bank USA commenced this foreclosure action alleging that defendant Gregory Sage defaulted on a note secured by a mortgage on his real property. After joinder of issue and an extended period of time during which settlement conferences took place, plaintiff moved for summary judgment striking the answer and appointment of a referee. Defendant cross-moved for, among other things, leave to amend his answer to allege that plaintiff lacked standing to bring the action. Supreme Court granted plaintiff’s motion and denied the cross motion. After considering the arguments, this court affirmed the lower court’s decision.
This court found that the plaintiff had established that the custodian of the trust had physical possession of the note and mortgage prior to the commencement of the action and that, as trustee, the plaintiff was responsible for carrying out the terms of the trust. Contrary to the defendant’s claim, the affidavit from an assistant vice-president of the mortgage servicing company was adequately based on a review of the books and records of the company maintained in the ordinary course of business, and the lack of personal knowledge as to the creation of the documents was not fatal.
Accordingly, the court found that the plaintiff met its initial burden on the motion for summary judgment and the burden then shifted to defendant to come forward with competent and admissible evidence demonstrating the existence of a defense that properly could raise an issue of fact as to his default. Defendant, as this court noted, did not do this, thus the case was properly dismissed.
June 11, 2014 | Permalink | No Comments
Georgia Court Dismisses Plaintiff’s RESPA, TILA and HOEPA Claims
The court in deciding Mitchell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (N.D. Ga., 2013) found no plain error in the lower court’s conclusion to dismiss the plaintiffs’ claims.
Plaintiffs Reginald and Jamela Mitchell filed a complaint against Deutsche Bank and MERS, the complaint alleged federal violations of the Truth-in-Lending Act (“TILA”), the Real Estate Settlement and Procedures Act (“RESPA”), and the Homeownership Equity Protection Act (“HOEPA”).
The Complaint also asserted the following state law claims: (1) fraud; (2) wrongful foreclosure; (3) quiet title; (4) slander of title; (5) infliction of emotional distress and (6) unfair business practices.
The crux of the plaintiffs’ claims under the federal statutes was that the defendants failed to provide them with the required disclosures, thereby allowing plaintiffs to rescind their mortgage transaction and seek damages. The lower court concluded that the Plaintiffs’ claims arising under TILA, HOEPA and RESPA were barred by the statute of limitations. The lower court recommended that the plaintiffs’ complaint be dismissed as the plaintiffs failed to state any federal or state law claim upon which relief could be granted. The plaintiff then appealed.
Upon review of the lower court’s decision, this court found no plain error in the lower court’s findings and recommendation that the defendants’ motion to dismiss plaintiffs’ claims be granted.
June 11, 2014 | Permalink | No Comments
June 12, 2014
Ohio Court Finds that Dismissal of Plaintiff’s Foreclosure Complaint did not Deprive it of Jurisdiction Over Defendants and Their TILA Claims
By Ebube Okoli
The court in deciding Wells Fargo Bank, N.A. v. Wick, 2013-Ohio-5422 (Ohio Ct. App., Cuyahoga County, 2013) found that the trial court’s dismissal of plaintiff’s foreclosure complaint did not deprive it of jurisdiction over defendants and their TILA claims, as these claims were separate and independent of the foreclosure complaint.
The Wicks claimed that the trial court erred in dismissing all of their counterclaims, cross-claims, and third-party claims when it dismissed Wells Fargo’s foreclosure complaint for failure to invoke the court’s jurisdiction. In ruling on the Wicks’ motion for reconsideration, however, this court determined that, with the exception of the TILA claims, the trial court’s dismissal of the Wicks’ claims was without prejudice and, therefore, as it related to those non-TILA claims, the trial court’s dismissal was not a final, appealable order.
On appeal, this court determined in considering the merits of the case, that a proper and validly asserted counterclaim is not extinguished by a plaintiff’s voluntary dismissal of its claims when the court has jurisdiction to proceed on the counterclaim. This court found, therefore, that where the court has jurisdiction over the parties and over the controversy, the borrowers’ counterclaim that does not arise from the note or mortgage can remain pending for independent adjudication.
Similarly, this court found that the trial court’s conclusion in this case that it lacked jurisdiction over the foreclosure claim because the bank lacked standing did not extinguished the Wicks’ proper and validly asserted claims.
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June 12, 2014 | Permalink | No Comments