Tag Archives: notice

Michigan Court Rejects TILA and RESPA Claims in Granting Summary Judgment

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The court in deciding Morton v. Bank of Am., N.A., 2013 U.S. Dist. (W.D. Mich., 2013) ultimately concluded that the moving defendants are entitled to judgment on all plaintiff’s claims as a matter of law.

Plaintiff asserted that none of the defendants had standing to foreclose on the mortgage. He also alleged that defendants were liable for violations of the Truth In Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA). Defendants Bank of America, MERS, and Crain had moved for judgment on the pleadings, but supported their motion with documents beyond the pleadings. Therefore, this court elected to treat the motion as one for summary judgment under Rule 56.

Plaintiff’s complaint identifies two federal claims, in addition to claims arising under Michigan law. The complaint mentions the Truth in Lending Act (TILA), 15 U.S.C. §§ 1601-1667f. Plaintiff also purports to assert a claim under the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2617. The court determined that neither the TILA claim nor the RESPA claim had merit. Plaintiff also asserted three purported state-law claims, which the court deemed to be both redundant and lacking merit. Accordingly, the court recommended that the entry of a summary judgment in favor of the defendants.

Ohio Appeals Court Reverses Summary Judgment in Favor of Bank as Genuine Issue of Fact Existed as to Whether the Bank held the Note

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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.

Georgia Court Dismisses Plaintiff’s RESPA, TILA and HOEPA Claims

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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.

Georgia Court Dismisses TILA and RESPA Claims Brought by Plaintiff

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The court in deciding Mitchell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (N.D. Ga. Sept. 25, 2013) granted the motion to dismiss proffered by the defendant.

The first enumerated cause of action in Plaintiffs’ complaint was a claim for fraud. Plaintiffs argued that their original mortgage lender, Accredited, engaged in a practice of filing false prospectus supplements with the Securities and Exchange Commission. Plaintiffs’ complaint also included a claim for wrongful foreclosure.

Next, the plaintiffs asserted that Deutsche Bank and MERS had “unclean hands” as they failed to make certain disclosures required by TILA. Plaintiffs also asserted that the defendants or their predecessors in interest violated RESPA in a number of ways. Plaintiffs’ complaint also included a claim for fraud in the inducement. Moreover, the plaintiffs’ complaint raised a claim for quiet title under O.C.G.A. § 23-3-40 and O.C.G.A. § 23-3-60 et seq. Lastly, the plaintiffs’ complaint raised a claim for fraudulent assignment.

Ultimately the court concluded that the plaintiffs’ complaint failed to state a viable claim for relief. Accordingly, this court granted the defendants’ motion to dismiss the plaintiffs’ complaint.

California Court Rejects Improper Pooling and Servicing Agreement Argument Brought by Plaintiffs

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The court in deciding Sollenne v. United States Bank Nat’l Ass’n, 2013 U.S. Dist., (S.D. Cal., 2013) dismissed the plaintiffs’ claims.

Plaintiffs alleged three causes of action: 1) quiet title; 2) declaratory relief to determine the validity of the deed of trust on the date the note was assigned and to determine if any defendant has authority to foreclose; and 3) injunctive relief to stop further collection activity, including the sale of the property.

Plaintiffs’ desired remedies also include a request for an order compelling the defendants to transfer or release legal title and any alleged encumbrances, and possession of the property to plaintiffs.

The plaintiffs listed the following deficiencies which they contended rendered invalid any security interest in the deed of trust: 1) the separation of title, ownership and interest in the note and deed of trust; 2) the lack of assignments to or from the intervening entities when the loan was sold; 3) the failure to assign and transfer the beneficial interest in the DOT to Defendants in accordance with the PSA; 4) the failure to endorse, assign, and transfer the note to USBNA in accordance with the PSA and California law; 5) that there were no assignments of beneficiary or endorsements of the note to each intervening entity; and 6) Defendants violated terms of the PSA.

After considering the plaintiffs’ arguments, this court dismissed the claims premised upon the securitization of the loan and violations of the PSA as well as the plaintiffs’ remaining claims.

California Court Holds that the Securitization of Mortgage Loan did not Nullify Rights Granted Under Deed, Including the Right to Foreclose

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The court in deciding Rivac v. Ndex West LLC, 2013 U.S. Dist. (N.D. Cal. Dec. 17, 2013) granted the motion to dismiss tendered by the defendant.

Plaintiffs filed a complaint that alleged eight causes of action including; (1) breach of contract, (2) breach of implied agreement, (3) slander of title, (4) wrongful foreclosure, (5) violation of § 17200, (6) violation of 15 U.S.C. § 1601, et seq. (TILA) (7) violation of 12 U.S.C. § 2605 (RESPA), and (8) violation of 15 U.S.C. § 1692, et seq. (FDCPA).

After considering the plaintiff’s contentions, the court granted the defendant’s motion to dismiss. The court then held that the securitization of borrowers’ mortgage loan did not nullify any rights granted under a deed of trust, including the right to foreclose against the borrowers’ real property upon the borrowers’ default.

Further, the absence of the original promissory note in the nonjudicial foreclosure did not render the foreclosure invalid. Moreover, the court held that mere allegations that documents related to the deed of trust were robo-signed by persons who had no authority to execute the documents had no effect on the validity of the foreclosure process.

Lastly, the court held that there was no breach of the deed of trust since the beneficiary was expressly authorized to sell the underlying note, and the borrowers themselves did not perform under the deed of trust.

Texas Court Dismisses Claims of Texas Debt Collection Act and Texas Property Code Violations

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The court in deciding Katz v. JP Morgan Chase Bank N.A., 2013 U.S. Dist., (S.D. Tex. Dec. 18, 2013) granted the motion to dismiss put forth by the defendant.

Plaintiff Katz alleged that defendant JP Morgan: (1) violated the Texas Property Code by failing to give proper notice because all transfers of the lien were not recorded timely; (2) was unjustly enriched because Katz may have been paying the wrong lender or account and that foreclosure would yield value above the amount owed; (3) violated or will violate the Texas Business and Commerce Code because defendants had failed to produce the original note with all transfers and assignments, thus the defendant could not enforce the mortgage without the promissory note; and that the defendant (4) violated the Texas Debt Collection Act by taking actions to collect on the note despite having no authority to collect on the note.

After methodically considering the plaintiff’s assertions, the court categorically dismissed them.