November 8, 2013
BAC Not Required to Evidence Holding Note in Texas Fourth Court of Appeals
In Lowery v. Bank of America, N.A., 2013 Tex. App. LEXIS 13114 (Tex. App. San Antonio Oct. 23, 2013), the Texas Fourth Court of Appeals affirms summary judgment for BAC Home Loan Servicing, LP dismissing homeowner’s claim that without evidence of holding the note, BAC lacked standing to foreclose. The homeowner sought an injunction from the nonjudicial foreclosure initiated by BAC in 2011, alleging wrongful foreclosure as the note did not name BAC or MERS, and further alleging that MERS improperly assigned the note to BAC. The court cites the Reinagel holding that the assignment of mortgage presumptively assigns the note as well, and that BAC is not required to show evidence of holding the note. On these grounds, the court found the homeowner produced less than a scintilla of evidence to show BAC lacked authority to foreclose, and further failed to show the signatory at MERS lacked authority.
November 8, 2013 | Permalink | No Comments
November 7, 2013
Eastern District of California Court Dismisses Plaintiff’s Claims of Federal Statutory Violations, Unlawful Foreclosure, Fraud, Equitable Estoppel & Accounting
The United States District Court for the Eastern District of California in deciding Herrejon v. Ocwen Loan Servicing, LLC, 2013 U.S. Dist. LEXIS 157126 (E.D. Cal. Nov. 1, 2013) dismissed the plaintiff’s complaint as it failed to allege cognizable claims. The plaintiff’s complaint purported to allege claims for federal statutory violations, unlawful foreclosure, fraud, equitable estoppel and accounting.
The plaintiffs (Ricardo G. Herrejon and Rosa E. Navarro-Herrejon) filed this action, which challenged the foreclosure of their property. The plaintiffs also sought to enjoin a November 4, 2013 property foreclosure sale. Plaintiffs’ complaint accused defendants of “unlawful foreclosure.” However, the court dismissed the plaintiff’s action in the absence of viable claims, the court also denied plaintiffs’ requested injunctive relief, and entered judgment on dismissal of plaintiffs’ claims.
November 7, 2013 | Permalink | No Comments
Central District of California Court Finds Plaintiff Lacks Standing as There Was No “Injury in Fact”
The United States District Court for the Central District of California in deciding Ellis v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 157173 (C.D. Cal. Oct. 28, 2013) concluded that plaintiff did not have standing to challenge defendants’ initiating foreclosure proceedings.
Plaintiff brought a complaint with a litany of claims. The claims included (1) dissemination of false advertising pursuant to 15 U.S.C. § 52; (2) violation of the Fair Debt Collection Practices Act (“FDCPA“), 15 U.S.C. § 1692 et seq.; (3) violation of the Real Estate Settlement Procedures Act (“RESPA“), [2] 12 U.S.C. § 2601 et seq.; (4) violation of California Civil Code §§ 2923.5 et seq., 2924 et seq., 2932.5, and 1095; (5) violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200 et seq.; (6) false advertising pursuant to Cal. Bus. & Prof. Code § 17500; and (7) Quiet Title.
On September 12, 2013, MERS filed a motion to dismiss. The court, as an initial matter, noted that plaintiff failed to explain how she had been injured by defendants’ conduct. The court also noted that the previous foreclosures were rescinded, and plaintiff did not allege a pending foreclosure proceeding. Thus, to have standing to bring her claims, the court noted, “the plaintiff must have suffered an ‘injury in fact.'” Accordingly, the court dismissed the plaintiff’s claims granting the defendant’s motion.
November 7, 2013 | Permalink | No Comments
Michigan Court Concludes that the Servicer of the Loan Was Not in Violation of the Notice or Loan-Modification Requirements of Michigan’s Foreclosure-by-Advertisement Statute
The Michigan court in deciding the home mortgage foreclosure case of Pettey v. CitiMortgage, Inc., 2013 U.S. App. LEXIS 22299, 2013 FED App. 0936N (6th Cir.), 2013 WL 5832535 (6th Cir. Mich. 2013), concluded that the servicer of the loan was not in violation of the notice or loan-modification requirements of Michigan’s foreclosure-by-advertisement statute, Mich. Comp. Laws § 600.3204, because the mortgagors failed to take action under the statute that would have triggered the servicer’s notice and loan-modification obligations.
In doing so, the court affirmed the district court’s rejection of the mortgagors’ unjust-enrichment and deceptive acts and unfair practices claims. Moreover, the court was persuaded that the district court’s grant of the servicer’s motion to dismiss and denial of the mortgagors’ motion for reconsideration were proper. The court relied on the reasoning handed down by the lower court in their opinion, with the caveat that defects or irregularities in a foreclosure proceeding resulted in a foreclosure that was voidable, not void ab initio.
November 7, 2013 | Permalink | No Comments
Eastern District of California Finds That MERS Was Not Required to Register to do Business in California
The Eastern District of California in deciding Bogdan v. Countrywide Home Loans, CIV-F-09-1055 AWI SMS (E.D. Cal. 2010), found that MERS was not required to register to do business in California. Based off of this finding the court subsequently dismissed fraud and unfair competition claims against MERS.
Plaintiff brought a litany of claims; (1) violation of Truth-in-Lending Act (“TILA”) against Decision One; (2) violation of California’s Rosenthal Fair Debt Collection Practices Act (“RFDCPA”) against Countrywide, Select Portfolio, Decision One, and Recontrust; (3) negligence against all Defendants; (4) violation of Real Estate Settlement Procedures Act (“RESPA”) against Countrywide, Select Portfolio, and Decision One; (5) breach of fiduciary duty against Morales, Home Sweet, Decision One, and Roman; (6) fraud against all Defendants; (7) violation of California’s Business & Professions Code § 17200 (“UCL”) against all Defendants ; (8) breach of contract agains Countrywide and Decision One; (9) breach of implied covenant of good faith and fair dealing against Countrywide and Decision One; and (10) wrongful foreclosure against Countrywide, Select Portfolio, and Recontrust.
Upon review the court reviewed the claims and subsequently dismissed them, finding that MERS was not required to
November 7, 2013 | Permalink | No Comments
Affordable Housing in the De Blasio Era
Mayoral candidate de Blasio’s position on affordable housing policy can be found here. The key points include:
- Require developers to build some affordable housing when they build in neighborhoods that have been upzoned (mandatory inclusionary zoning)
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Direct $1 billion in city pension funds to affordable housing construction
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Apply the same tax rate to big, vacant lots as applies to commercial properties and earmark the increased revenues for affordable housing
- Ensure that affordable housing subsidies meet the needs of lower-income families and are distributed equitably throughout the City
As I had mentioned previously, NYU’s Furman Center (and its Moelis Institute for Affordable Housing Policy) ran a great series of ten conversations on the big housing issues facing New York City’s mayor. Since then, the Furman Center has posted ten policy briefs about those issues.The ten issues are
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Should the next mayor commit to build or rehabilitate more units of affordable housing than the Bloomberg Administration has financed?
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Should the next mayor require developers to permanently maintain the affordability of units developed with public subsidies?
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Should the next mayor adopt a mandatory inclusionary zoning program that requires developers to build or preserve affordable housing whenever they build market-rate housing?
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Should the next mayor seek to expand the use of city pension funds to develop affordable housing?
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Should the next mayor provide a rental subsidy for moderate- and middle-income households?
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Should the next mayor permit more distant transfers of unused development rights to support the development of affordable housing?
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Should the next mayor support the New York City Housing Authority’s plan to lease its undeveloped land for the construction of market-rate rental housing?
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Should the next mayor allow homeless families to move to the top of the waiting list for housing vouchers or public housing?
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Should the next mayor offer to cap the property tax levy on 421-a rental properties in order to preserve the affordable units within those buildings?
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How should the next mayor prioritize the preservation of existing affordable housing units?
Mayor-Elect de Blasio and his team will have to struggle with all of these issues. There are few easy answers in New York City when it comes to housing policy.
November 7, 2013 | Permalink | No Comments
Washington Court Dismisses Plaintiff’s Truth in Lending Act (TILA) Complaint
By Ebube Okoli
The court in deciding Pruss v. Bank of Am. Na, 2013 U.S. Dist. LEXIS 157286 (W.D. Wash. Nov. 1, 2013) found that the plaintiff’s claims were barred by time and or otherwise inadequately pleaded. Therefore, the court granted the defendants’ motion to dismiss.
Pruss, the plaintiff, alleged he had been injured financially by unfair and deceptive lending practices, and brought a complaint with five causes of action. The 5 causes included: (1) predatory lending; (2) violations of the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act (“RESPA”); (3) slander of title; (4) breach of duty; and (5) Consumer Protection Act violations. Defendants subsequently filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which the court granted.
In regards to the plaintiff’s predatory lending claim, the court noted that the plaintiff failed to present any case law or Washington state statute recognizing a claim for “predatory lending.” Further, because all of plaintiff’s other claims were time-barred or were deemed by the court as failing to state a claim, the court granted the defendants’ motion, thus dismissing the plaintiff’s claims.
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November 7, 2013 | Permalink | No Comments