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July 2019 USFN Briefing Follow-up: REO/Eviction

Posted By USFN, Monday, August 12, 2019

Below is a roundup of legislation and case law from July’s REO/Evictions USFN Briefing. Post-webinar downloads and a schedule of upcoming topics may be found on the USFN Briefings webpage.

 

Legislative Updates


California
by Kayo Manson-Tompkins, Esq.

The Wolf Firm

USFN Member (CA, ID, OR, WA)

California AB 1482 –Bill to Establish a Statewide Rent Control

i. If passed, Section1946.2 and Section 1947.12 will be added to the Civil Code

  • Would prohibit terminating a lease of a tenant who has occupied the property for at least 12 months without “just cause.”
  • Notice of violation and an opportunity to cure must be sent prior to the notice of termination
  • No fault “just cause” terminations require relocation of at least one month’s rent
  • If no relocation is offered, the notice of termination is void
  • Would not prevent local rules or ordinances that provide a higher level of tenant protections
  • Voids any waiver of rights provisions
  • Limits annual rent increase to 7% plus change in cost of living or 10%, whichever is lower
  • Largest impact on cities that do not already have rent control laws
  • Would include all homes built in Los Angeles between 1978 and 2009, which currently are not covered by Los Angeles rent control laws

ii. Repealed as of January 1, 2023

 

Connecticut
by Renee Bishop, Esq.

Bendett & McHugh, PC

USFN Member (CT, MA, ME, NH, RI, VT)

House Bill 6996 – An Act Extending the Foreclosure Mediation Program

i. This bill extends the judicial foreclosure mediation program four (4) years to July 1, 2023

 

House Bill 7179 – An Act Concerning Crumbling Concrete Foundations

 i. This bill makes comprehensive change to various statutes regarding crumbling concrete foundations. The most pertinent of those changes is that it requires the seller of residential property acquired by a judgment of strict foreclosure, foreclosure by sale or by deed in lieu of foreclosure to complete a newly created form regarding the foundation of the property and the potential existence of the chemical pyrrhotite. Completion of the form is only required for those properties located in municipalities that have been identified by the Capitol Region Council Governments as being affected or have potential to be affected by crumbling foundations.

 

ii. Included in the form is whether the seller has any knowledge related to the presence of pyrrhotite in any concrete foundation on the subject property; if the Seller is aware of any damage or deterioration in any concrete foundation on the subject property; and if the Seller is aware of any repairs or remediation to any concrete foundation on the subject property.

 

Senate Bill 320 –An Act Concerning Real Estate Closings and Attorneys and Law Firms Preferred by Mortgage Lenders

i. This bill provides that no person shall conduct a real estate closing unless such person is admitted as an attorney in this state. A real estate closing is defined as mortgage loan transaction secured by property in Connecticut, other than a home equity line of credit transaction or any other transaction that does not involve the issuance of mortgagee title insurance policy; or a transaction where consideration is paid to effectuate the change in ownership to real property in Connecticut.

 

Senate Bill 833 – An Act Concerning Validation of Conveyance Defects Association with an Instrument that was Executed Pursuant to a Power of Attorney.

i. This bill validates deeds, mortgages, assignments and releases recorded after January 1, 1997 executed pursuant to a power of attorney, where the power of attorney was not recorded in the applicable land records. This will happen so long as the deed has been of record for fifteen (15) years and no action to set aside the deed has been commenced. The only exemptions to validation will be (1) if the fiduciary in the deed is also the grantee (self-dealing), or (2) the deed fails to state that the consideration reflecting fair market value.

 

Senate Bill 1070 – An Act Concerning Abandoned and Blighted Property Stewardship

i. This bill establishes a very detailed legal process for the rehabilitation of abandoned properties in municipalities with populations of at least 35,000 by providing that if an owner of a residential, commercial, or industrial building fails to maintain it in accordance with applicable municipal codes, the Superior Court, upon petition of a party in interest, and after holding a hearing on the same, may appoint a receiver to make the necessary improvements, who may obtain court approved financing to accomplish the same.


ii. Notably, a receiver will not be appointed if the building is subject to a pending foreclosure action by an individual or a nongovernmental entity (which does not appear to be defined).


Georgia
by Stuart Gordan, Esq.

McCalla Raymer Leibert Pierce, LLC

USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY)

House Bill 492 – Writ Application Deadline

i. Requires applications for execution of a writ of possession to be made within 30 days of the issuance of the writ, unless a writ is accompanied by an affidavit showing good cause for the delay in applying for the writ.

 

House Bill 346 – Dispossessories Could be Retaliatory

i. Prohibits retaliation by a landlord against a tenant for taking specified actions, and provides for a defense when a dispossessory action is filed within 3 months after the certain action is taken by the tenant. This appears to have broader applicability to the traditional landlord/tenant relationship, but the bill does not contain a clear exception for post-foreclosure dispossessories. Still this applies to situations where there is a lease agreement and therefore does not apply to post-foreclosure evictions, but this is uncertain until there is a court opinion.

 

Illinois
by Michael Anselmo, Esq.

Anselmo Lindberg & Associates

USFN Member (IL)

Senate Bill 169 – Aldermanic Notification

i. Amends the Code of Civil Procedure. Replaces everything after the enacting clause with the provisions of the introduced bill and makes the following changes: Deletes language providing that the failure to send a copy of the notice to the alderman or to file an affidavit as required results in a fine of $500 payable to the ward in which the property is located. Provides instead that the failure to send a copy of the notice to the alderman or to file an affidavit as required shall result in a stay of the foreclosure action on a motion of a party or the court; if the foreclosure action has been stayed by an order of the court, the plaintiff shall send the notice by certified mail or by private carrier that provides proof of delivery; and after proof of delivery is tendered to the court, the court shall lift the stay of the foreclosure action.

 

Public Act 101-97 – Release of Mortgage Request

i. Adds a person authorized by the mortgagor, grantor, heir, legal representative, or assign to the list of those who may request that the mortgagee of real property execute and deliver a release of a mortgage or deed of trust. If any mortgagee or trustee does not, within 30 days (rather than "one month") after the payment of the debt secured by the mortgage or trust deed complies with specific requirements, then it is liable for the sum of $200 to the aggrieved party. The successor in interest to the mortgagee or trustee is not liable for the $200 penalty if it complies with specific requirements within 30 days (rather than "one month") after succeeding to the interest. Effective January 1, 2020.

 

Case Law Updates

Illinois
by Michael Anselmo, Esq.

Anselmo Lindberg & Associates

USFN Member (IL)

Santiago v. Deutsche Bank– 1st Dist. No 1-17-3170 (Pending) - UPDATE

1. Keep Chicago Renting Ordinance (KCRO) requires that a lender who purchases property at foreclosure sale with a bona fide tenant residing in it must either 1) pay that tenant $10,600 in relocation expenses, or 2) provide them with a lease for no more than 102% of the prior year’s rental rate.

 

2. Rent Control Preemption Act (RCPA)states that “A unit of local government, as defined in Section 1 of Article VII of the Illinois Constitution, shall not enact, maintain, or enforce an ordinance or resolution that would have the effect of controlling the amount of rent charged for leasing private residential or commercial property.” (emphasis added) 50 ILCS 825/5

 

3. Argued that requiring a lender to cap the rental rate at 102% of the tenants’ prior lease is an ordinance that controls rent in violation of the Rent Control Preemption Act.

 

4. UPDATE –This case is dismissed, due to settlement on behalf of the parties. No further pending appeals at this time.

 

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Connecticut Supreme Court Reversal Will Affect Foreclosure Disputes

Posted By USFN, Monday, August 12, 2019

by Robert J. Wichowski, Esq.
Bendett & McHugh, P.C.
USFN Member (CT, MA, ME, NH, RI, VT)

In United States Bank National Assn. v Blowers, Supreme Court Docket No. 20067, 2019 WL 3558862, 2019 Conn. LEXIS 213, at *5 (Aug. 1, 2019), the Supreme Court of Connecticut reversed the decision of the Appellate Court upholding the trial court’s granting of the Plaintiff’s Motion to Strike Special Defenses and Counterclaims, Motion for Judgment on Counterclaims, Motion for Summary Judgment as to liability, and Motion for Strict Foreclosure, and in so doing eliminated the most common legal theory used by plaintiffs' attorneys to dispose of contests to foreclosures in the State of Connecticut—that any defenses to foreclosure that do not go to the “making, validity or enforcement” of the note and mortgage are not defenses to a foreclosure action.

Plaintiff brought this action to foreclose a residential mortgage in 2014.  During the course of the case, the Defendant, in response, made the following allegations as defenses and counterclaims:

Defendant applied for and the Plaintiff offered and allegedly reneged on at least four modification offers after accepting the required number of trial payments from the Defendant. The Plaintiff later increased the payments from an initial $1950 to $3445 a month. In April of 2012, the Defendant contacted the State’s Department of Banking, which intervened on the Defendant’s behalf, resulting in an immediate modification being received. Within months of that modification, Defendant alleged that the Plaintiff notified the Defendant that his monthly payments were increasing nearly twenty percent from the modified payment. The Defendant was unable to afford these payments, but continued to make the monthly payments set by the April 2012 Modification until October of 2012 when the Plaintiff rejected them as “partial” payments.  The Defendant further alleged that the Plaintiff erroneously informed the Defendant’s insurance company that the property was no longer being used as the Defendant’s residence. As a result, the Defendant’s insurance policy was cancelled and the Defendant was forced to replace coverage and his rate increased from $900 to $4000 per year.

After the commencement of the foreclosure action in 2014, and after participation in the Court supervised foreclosure mediation program, the Defendant further alleged that during the course of said mediation, the Plaintiff regularly ignored agreed upon deadlines, arrived late to mediations sessions, made duplicative, exhaustive, and ever changing requests, or did not provide Defendant with complete information. This resulted in an increase of the Defendant’s debt, fees and costs due to Plaintiff.

The Defendant claimed that the Plaintiff should be equitably estopped from collecting the damages it caused by its own misconduct and that the Plaintiff’s attempt to foreclose should be barred by the doctrine of unclean hands as alleged by his counterclaims and special defenses. The Defendant also sought compensatory and punitive damages, injunctive relief, and attorney’s fees.

The Plaintiff moved to strike[1] all of the defenses and counter claims contending that they were insufficient as a matter of law because the defenses and counterclaims did not relate to the making, validity, or enforcement of the note or mortgage, and also failed to state a claim upon which relief may be granted. Plaintiff was successful at the Trial Court and the Defendant appealed. The Appellate Court (with one judge dissenting) affirmed the Trial Court’s decision of granting the Plaintiff’s Motion to Strike reasoning that "automatically allowing counterclaims and special defenses in foreclosure actions that are based on conduct of the mortgagee arising during mediation and loan modification negotiations would serve to deter mortgagees from participating in these crucial mitigating processes.” U.S. Bank National Assn. Trustee v. Blowers, 177 Conn. App. 622, 634, 172 A.3d 837 (2017). The Defendant again appealed, the Connecticut Supreme Court certified the appeal, and reversed the opinion of the Appellate Court. 

In reversing the opinion of the Appellate Court, the Supreme Court eliminated perhaps the most successful argument utilized by mortgage servicers in Connecticut to defeat contests to foreclosures. Connecticut Superior Courts (trial court) and Appellate Courts have long held in foreclosure proceedings that defenses that did not go to the making, validity or enforcement of the note or mortgage were not defenses to a foreclosure action.  In this case the Defendant contended that, due to the equitable nature of a foreclosure action, a mortgagee’s misconduct that hinders the mortgagor’s attempts at curing the default and adds to the mortgagor’s debt while the mortgagor is making good faith efforts, is a proper basis for special defenses or counterclaims, even if that conduct occurs after the mortgagor’s default, or even after judgment.

In making its ruling the Supreme Court initially observed “…that the ’making, validity, or enforcement test’ is a legal creation of uncertain origin, but it has taken root as the accepted general rule in Superior and Appellate Courts over the past two decades.” After examining the facts and related case law, the court ultimately ruled: “These equitable and practical considerations inexorably lead to the conclusion that allegations that the mortgagee has engaged in conduct that wrongly and substantially increased the mortgagor’s overall indebtedness, caused the mortgagor to incur costs that impeded the mortgagor from curing the default, or reneged upon modifications are the types of misconduct  that are ‘directly and inseparably connected’ (citation omitted) to enforcement of the note and mortgage.”   Accordingly, the court held that the Defendant’s allegations provided a legally sufficient basis for special defenses in the foreclosure action.  In remanding the case to the Appellate Court, the Supreme Court was very clear to point out that it was not opining as to whether or not the defenses and claims were legally sufficient, or whether foreclosure should be withheld even if Defendant was successful in proving his case, and it reminded the trial court that its equitable powers do have limits. 

This case signifies a sea of change in how foreclosure and litigation firms will be dealing with challenges to foreclosures in the State of Connecticut going forward.  As most defenses to foreclosures in Connecticut were previously resolved by relying upon the making, validity or enforcement test, without that standard, additional motion practice and discovery will likely be required to resolve contested foreclosures.  It will also likely lead to more cases going to trial, rather than being resolved by Motions to Strike and/or Motions for Summary Judgment.

This case also underscores the importance of proper documentation and procedures in relation to loss mitigation reviews.  Even though the conduct that occurred in this case took place prior to the CFPB’s amendments to the mortgage servicing rules, the lesson here is that any unfounded delay due to “wrongful conduct” by the mortgagee in loss mitigation may result in a curtailment, sanction or withholding of a foreclosure. 

 

[1] A motion to Strike in Connecticut is allowed by Connecticut Practice Book §10-39 and challenges the legal or factual sufficiency of a complaint or defense and is similar, though not identical to a F.R.C.P 12(b)(6) or F.R.C.P 12(f). motion
 

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Tips for Oregon REO Property Owners in Navigating the New Landlord-Tenant Terrain

Posted By USFN, Monday, August 12, 2019

by Randall Szabo, Esq.
The Wolf Firm
USFN Member (CA, ID, OR, WA)

In February, Oregon Governor Kate Brown signed into law sweeping amendments to the Residential Landlord-Tenant Act (ORS Chapter 90) (“RLTA”), imposing the nation’s first statewide rent control. As a result of an emergency declaration, Senate Bill 608 (which overturns a more than 30 year-old-rent control prohibition) took effect upon passage.  At its core, the new law imposes a cap on most rental increases and a prohibition on most no-cause evictions.  While the law constitutes a massive sea of change in the world of landlord-tenant law, it may appear at first glance of little consequence to owners of REO properties, as they are generally exempt from the complex requirements of the RLTA.  However, one wrong move can bring these onerous requirements front and center.  With a good understanding of both the new law and existing foreclosure law, these results can be mitigated if not avoided altogether.

While the fanfare of SB 608 mostly surrounds its rent control provisions, more consequential, in the context of REO properties, are the substantial obstacles the law imposes on terminating tenancies. The law provides different treatment for month-to- month and fixed-term tenancies.  A landlord may terminate a month-to-month tenancy during the first year of occupancy (the tenant’s first year—not the first year the new owner takes title) without stated cause.  After the first year a month-to-month tenancy may only be terminated for a “tenant cause” or a “qualifying landlord reason.”  Similarly, a fixed-term tenancy may be terminated without cause at the end of the term if the term expires within the first year of occupancy.  However, if the term expires after the first year of occupancy, the fixed-term tenancy converts to a month-to-month tenancy unless:

 

a)    the landlord and tenant agree to a new fixed term;

b)    the tenant leaves voluntarily; or

c)    the landlord has a qualifying reason for termination.

 

“Tenant causes” for eviction include material violations of the rental agreement and other specific causes as set out in ORS Chapters 86 and 90. The “qualifying landlord” reasons for eviction are:

 

 a) converting the premises to a non-residential use;

 b) initiating repairs (if the premises is or will be unsafe or unfit for occupancy); and

 c) having accepted an offer to purchase the property.

 

 A landlord who terminates a tenancy in violation of the above could face liability of three times the monthly rent plus actual damages, and the tenant may have a defense in an action for possession.

The rent control aspect of the law is relatively straight forward. A landlord may not raise a tenant’s rent during the first year of occupancy, and after the first year may raise the rent no more than seven percent plus the consumer price index during any 12-month period.  Exceptions are listed for newer constructions (less than 15 years old at the time of the rent increase), and landlords who provide decreased rent as part of a government subsidy or program. Penalties for violating the statute are set at three times the monthly rent plus actual damages.

The issue is, are these protections applicable to REO property owners?  The answer is, perhaps. A landlord-tenant relationship may be created involuntarily.  In the context of non-judicial foreclosure, the purchaser at a trustee’s sale may inadvertently form a landlord-tenant relationship by failing to terminate the tenancy within 30 days from the date of sale.  See ORS 86.782(9)(a)(C).  While failure to timely terminate the tenancy has always had some issues, this omission now creates the more problematic tenancy which may only be terminated by following the new law’s onerous requirements.

A new owner can also run into trouble by accepting rent from the existing tenant. ORS 86.782(9)(a)(A) explicitly provides that a purchaser after a trustee’s sale becomes a landlord if the purchaser accepts rent from an existing tenant.  While it may be tempting to accept rental payments from an existing tenant, particularly one who has the ability to remain in the premises for the remainder of a lease pursuant to the Federal Protecting Tenants in Foreclosure Act, local counsel should be consulted before accepting any form of payments from an existing occupant.

Although the purchaser at a sheriff’s sale following a judicial foreclosure is generally exempt from the requirements of ORS Chapter 90, we anticipate an argument to be made to extend these prescriptive landlord-tenant relationships into the post-judicial context.  We would expect this in the situation in which a new owner follows ORS 18.946(2), which allows a tenant with an unexpired lease to remain in occupancy until the end of the lease or until the expiration of redemption “if the lessee makes the lease payments to the purchaser or redemptioner, or pays to the purchaser or redemptioner a monthly payment equal to the value of the use and occupancy of the property, whichever amount is greater”.  SB 608 provides that a trustee’s sale constitutes cause for terminating a tenancy, See e.g. SB 608 §1(3)(c)(A), however, no such provision is specified in the context of a judicial sale.   It is unknown if the legislature simply found it unnecessary given a long history of not applying landlord-tenant law in the judicial-foreclosure context.  Nonetheless, we do anticipate the issue to be raised. Thus, it is important to consult with local counsel before accepting funds from an occupant.

In the event that a landlord-tenant relationship is created, there may be no simple way to terminate the tenancy, but the new landlord does have options. As stated above, the tenancy can be terminated if the property is sold or in need of repairs, but certain conditions must be met and specific procedures followed in order to terminate the tenancy for either of these reasons. Therefore, consultation with local counsel is strongly advised. Fortunately, the creation of a tenancy to which the RLTA applies can be avoided by following these procedures:

 

a) within 30 days of a trustee’s sale, provide written notice of intent to terminate the tenancy; 

b) do not have communications with occupants that could be construed as agreeing to a new or continued tenancy; and

c) do not accept any payments from occupants without first consulting with counsel.
 

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I Can Name That Tune in One (Lost) Note

Posted By USFN, Monday, August 12, 2019

by Ronald S. Deutsch, Esq. and Richard Solomon, Esq.
Cohn, Goldberg & Deutsch, LLC
USFN Member (DC, MD)

Somewhere out there, lost notes occupy a forgotten drawer and outnumber the inventory of songs.   What effect does this have on the foreclosure process?

Rule 14-207(b)(3) of the Maryland Rules of Procedure provides that in an action to foreclose, the complaint or order to docket shall … be accompanied by … “a copy of any separate note or other debt instrument….”   If the note was transferred from the original payee, as a matter of court practice, the note must additionally be properly endorsed to establish the transfer of the right to enforce it, in a foreclosure proceeding.  

Many notes are endorsed in “blank,” or alternatively, name a specific payee.   These endorsements are typically found on the back of the note or contained on an “Allonge.”  Endorsements are often scrutinized by courts, and borrowers in attacks on the right to enforce. 

How does one handle the situation where all assignments of the security instrument have been recorded but an endorsement is missing on the Note?  A conclusive presumption exists under Md. Ann. Code, Real Property Section 7-103(a) that the title to any promissory note is vested in the person holding the record title to the “mortgage.”  Will this conclusive presumption cited above cure the missing endorsement situation?  The answer may possibly be found in Le Brun v Prosise, 197 Md. 466, 79 A.2d 543 (1951), which held that a deed of trust “need not, and properly speaking cannot, be assigned like a mortgage.”  If so, does the conclusive presumption in Section 7-103(a) apply to Deeds of Trust?   As this is unclear, the conclusive presumption may therefore, provide very limited comfort to a party relying on the recorded assignment to cure a missing endorsement.  It should be noted that, likely, more than 95% of all security instruments in Maryland are deeds of trusts, and mortgages are generally only used, as a matter of local practice in Baltimore City.

What if the original note is lost but the noteholder has a copy that can be filed in the foreclosure action?   Under Maryland law, the courts may accept a lost note affidavit from the party who lost the note if the affidavit 1) identifies the owner of the debt and it states from whom and the date on which the owner acquired ownership; 2) states why a copy of the debt instrument cannot be produced and 3) describes the good faith efforts made to produce a copy of the debt instrument.  In general, a person claiming to be a holder of a note must 1) establish a foundation for the admission of the evidence of the note and, if so established, 2) provide proof of the execution and contents of the instrument and 3) satisfy the court that the maker of the note is adequately protected against loss that might occur by reason of a claim by another person.  Adequate protection may be provided by any reasonable means e.g. the posting of a bond. 

The more difficult scenario is where a note has been lost and the Assignee purchases it from the Assignor or someone else in the chain who lost it.  In most states, including Maryland, the version of Section 3-309 of the Uniform Commercial Code (UCC) adopted provides that persons seeking to establish a lost, destroyed, or stolen instrument by secondary evidence must first show that:

 

(i) The person was in possession of the instrument and entitled to enforce it when loss of possession occurred; (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

 

 What is problematic in the statutory language is that if a creditor was NOT in possession of the note when it was lost, then the creditor cannot enforce it.   


One lead case was decided in the District of Columbia.   In Dennis Joslin Company, LLC v. Robinson Broadcasting Corp.  977 F. Supp. 491 (D.C. Cir. 1997) the federal court held that under the DC version of 3-309, in effect at the time, the assignee of the prior creditor could not enforce a note, since the note was lost by the prior creditor and not by the party seeking to enforce the note.   This had the unfortunate result that the assignee could not collect a note with a balance of more than one million dollars.

The former version of Section 3-309, as interpreted by Joslin, was adopted by the District of Columbia when it originally adopted Article 3 of the Uniform Commercial Code.  Prior to the adoption of Article 3, the section governing lost instruments provided that the “the owner of an instrument which is lost, whether by theft or otherwise, may maintain an action in his own name, and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms.”    The decision in Joslin caused a split in many state and federal courts over the interpretation of the provision.   Some courts followed the literal holding in Joslin.  (WV, CT, FL).  Other courts disagreed with Joslin’s holding (5th Cir., TX, MN, NJ, NH, and PA).  These courts held that the right to enforce could be assigned along with the assignment of the note.  

To resolve this dispute section 3-309 of the Uniform Commercial Code was subsequently amended to omit the possession requirement, and to require only an entitlement to enforce the instrument when the instrument was lost, or the acquisition of ownership from a person who was so entitled, either directly or indirectly.  The 2002 revision of section 3-309 states in part:

 

a)  A person not in possession of an instrument is entitled to enforce the instrument if:  (1) The person seeking to enforce the instrument (a) was entitled to enforce the instrument when loss of possession occurred, or (b) had directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

 

 At least eighteen states and the District of Columbia (but not Maryland) have substantially adopted the 2002 amendment to the UCC, thereby eliminating the possession requirement under Section 3-309.  Those states include Alabama, Arkansas, Florida, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Hampshire, Ohio, Oklahoma, South Carolina, Tennessee and Texas.  In doing so, those states have explicitly rejected the reasoning of the Joslin holding.  Additionally, despite not adopting the 2002 amendment, New Jersey recently held the right to enforce a note can be transferred by the party who lost the note to the assignee who was not in possession. Investor’s Bank v. Torres, 197 A. 3d 686, 457 N.J. Super. 53 (N.J. Super. Ct. App. Div 2018).   To allow otherwise, the court reasoned, would violate the equitable principal of unjust enrichment.    The District of Columbia, in response to the Joslin case, adopted the 2002 amendment and rejected the reasoning of the court.  Many states, however, including Maryland, which adopted the original version of Section 3-309 have failed to either adopt the amended version or interpret the original version in accord with Torres, so the landmine remains.


Because of the complexity in the law for enforcing a note, it is critical that lenders and servicers maintain adequate controls of loan documentation.  Moreover, when purchasing loans, the purchase agreements should provide for the seller’s repurchase of any loan that cannot be enforced due to lost notes of missing endorsements.
 

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Reverse Mortgage Redemption in Kansas

Posted By USFN, Monday, August 12, 2019

by Aaron M. Othmer, Esq.
Martin Leigh PC
USFN Member (KS, MO)

In Kansas mortgage foreclosure actions, and as in most judicial foreclosure states, the borrower is afforded an opportunity to redeem a foreclosed property after the foreclosure sale has occurred. Redemption of a foreclosed property is controlled in Kansas by K.S.A. § 60-2414. K.S.A § 60-2414 sets forth, amongst other things, how the property is redeemed, who can redeem, and how long a party has to redeem a foreclosed property. K.S.A. § 60-2414 provides “the defendant owner may redeem any real property sold under execution, special execution or order of sale, at any time within 12 months from the day of the sale, for the amount paid by the current holder of the certificate of purchase.”  See K.S.A. K.S.A. § 60-2414(a). However, under certain circumstances, the redemption period is shortened to three months. “In the event a default occurs in the conditions of the mortgage or instrument of the most senior lien foreclosed before one-third of the original indebtedness secured by the mortgage or lien has been paid, the court shall order a redemption period of three months. K.S.A. § 60-2414(m)(emphasis added).

A key to determining the appropriate redemption period length is determining what the “original indebtedness” is. For a traditional mortgage, after the mortgage has been executed, all funds are taken out at once to pay for the property, thereby making the “original indebtedness” the “total indebtedness” for purposes of the Kansas redemption statute. Therefore, calculating the redemption period for traditional mortgages is straight-forward. At the time of default, the lender’s attorney can simply divide the unpaid principal balance by the total indebtedness of the mortgage to determine whether the redemption period is three months or 12 months. Using the formula above, if the ending percentage is greater than two-thirds or 66.67%, then the redemption period is three months. If the percentage is less than 66.67%, the redemption period is 12 months.

For reverse mortgages, the same redemption rules apply, but calculating the redemption period is not as straight forward. In a reverse mortgage transaction, the borrower mortgages their property to the lender for a total mortgage amount, like a traditional mortgage. However, instead of the lender paying all funds at once to the buy the property, the lender will either provide a lump sum amount to the borrower for the borrower to use how they see fit, or the borrower will draw funds from the lender over time not to exceed the total mortgage amount. Stated another way, a typical reverse mortgage borrower mortgages their property to the lender in exchange for the lender providing advances to the borrower, allowing the borrower to “live off the equity in their home while continuing to live there.” Reverse Mortg. Sols., Inc. v. Goldwyn, 56 Kan. App. 2d 129, 130, 425 P.3d 617, 619, 2018 WL 3320933 (Kan. Ct. App. July 6, 2018). Typically, the lender will continue to provide monthly advances or allow monthly draws by the borrower until the total mortgage amount is reached or until the borrower defaults. For most reverse mortgages, a borrower defaults if the borrower fails to pay taxes/insurance or if the borrower dies. In most reverse mortgage situations, the reverse mortgage borrower will continue receiving equity advances or continue making monthly draws without repayment of the indebtedness, thereby essentially guaranteeing a three-month redemption period. However, if the reverse mortgage borrower does repay some of the indebtedness, the question remains how the “original indebtedness” is determined for purposes of calculating the redemption period.

The Kansas Court of Appeals recently clarified the “original indebtedness” issue in Reverse Mortg. Sols., Inc. v. Goldwyn, 56 Kan. App. 2d 129, 425 P.3d 617, 2018 WL 3320933. In Goldwyn, the reverse mortgage borrower took out a mortgage with a total indebtedness of $262,500.00. Goldwyn, 56 Kan. App. 2d at 130, 425 P.3d at 619. When the borrower died, Goldwyn became the property owner, and shortly thereafter, the lender declared the entire sum of all advances due. Id.  To determine the redemption period, the court examined the language provided in K.S.A. § 60-2414(m).  Instead of looking at the amount repaid on “total indebtedness” of the mortgage ($262,500.00), the court looked at the amount repaid of the first advance amount. As stated by the Court of Appeals, the “mortgage amount…does not determine the ‘original indebtedness’: a mortgage secures the loan but there's no indebtedness until some money is taken under the loan.” Goldwyn, 56 Kan. App. 2d at 136, 425 P.3d at 622. The Court of Appeals further clarified that while “[the borrower] took additional advances from October 2007 through November 2010, those amounts would represent part of her total indebtedness but not her ‘original indebtedness.’” Id. As shown by the facts of the case, the borrower did not repay any of the sums she received from the lender. Id. Therefore, the Court of Appeals determined that the redemption period was three months under K.S.A. § 60-2414(m). Id.  

In Goldwyn, The Kansas Court of Appeals goes on to suggest that the Kansas legislature may want to consider a different approach regarding redemption periods and reverse mortgage transactions, and it’s hard not to agree with the Kansas Court of Appeals. The Kansas legislature may want to consider providing a permanent 12-month redemption period for reverse mortgages considering all reverse mortgage borrowers are elderly as required by federal law (“the youngest borrower shall be 62 years of age or older at the time of loan closing. 24 CFR 206.33.”).  As the redemption statute currently stands, the shortened redemption period puts a tremendous amount of pressure for borrowers to obtain funds to payoff or reinstate the loan, and if that cannot occur, then the borrowers are forced to find new accommodations. If the Kansas legislature does not address the issue of redemption periods for reverse mortgages, lenders may want to consider agreeing to, or providing, extensions of the redemption period on their own.
 

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Important Changes to the Enforceability of Maryland Tax Liens

Posted By USFN, Monday, August 12, 2019

by Angie Nasuta, Esq.
Alba Law Group, P.A.
USFN Member (DE, MD)

 

On April 30, 2019, Maryland’s Governor signed into law Senate Bill 484 establishing automatic termination time frames for certain state liens.  This legislation, which took effect July 1, 2019, most notably adds provisions to Md. Tax - Prop. Art. § 14–804 for the automatic termination of state tax liens 20 years after the date the lien attaches to the property.  

The new law resolves an issue that has plagued Maryland title reviewers for three decades. While virtually all other lien types have a set expiration period - generally 12 years from the date of entry for judgment liens - the Court of Special Appeals, Maryland’s intermediate appellate court, held there was no such limitations period on the enforcement of liens entered in favor of the State of Maryland.  Rossville Vending Machine Corp v. Comptroller of the Treasury, 114 Md. App. 346 (1997).

This holding launched a significant issue with the marketability of title for some properties, particularly for titles with open state liens filed against prior property owners who had no connection with a property for many years or were even deceased.  Title agents were also faced with a struggle of trying to obtain payoff information and/or lien releases from the state for older liens where the related records would be more difficult to locate.

For those working in the mortgage default arena, the rising trend of mortgage investors and servicers refusing to accept letters of indemnity intensified the problem of resolving unexpired tax liens.

For the last several sessions, title industry representatives have lobbied the Maryland General Assembly in a concerted effort for the passage of legislation to impose a limitations period for state tax liens.  This year, they finally succeeded. 

Although the new 20-year termination period exceeds that of other standard judgment liens, and there are other state lien types not affected, this seminal piece of legislation is still a huge step in the right direction. It will provide some much-needed relief from the problems that the title and default industries in Maryland have been facing in recent years.

 

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Chase v Thompson Prior Holding Vacated by First Circuit Court of Appeals

Posted By Administration, Wednesday, July 31, 2019

by Robert Wichowski, Esq.
Bendett & McHugh, PC
USFN Member (CT, MA, ME, NH, RI, VT)

 



The First Circuit Court of Appeals has vacated their prior holding in the case of Thompson v JP Morgan Chase (915 F.3d 801.)  In vacating the prior order, the Court held that due to the precise language contained in the relevant state banking regulation (209 C.M.R. §56.04) which the notices were required to contain, together with the widespread industry support received by Chase in subsequent filings in support for Chase’s petition for rehearing, the matter should be directly certified to the Massachusetts Supreme Judicial Court and in fact certified this question to said court:

 

“Did the statement in the August 12, 2016, default and acceleration notice that ‘you can still avoid foreclosure by paying the total past-due amount before a foreclosure sale takes place’ render the notice inaccurate or deceptive in a manner that renders the subsequent foreclosure sale void under Massachusetts law?”

 

As a result, the court’s ruling as outlined here is no longer operative.  The matter will be taken up and decided by the Massachusetts Supreme Judicial Court.

 

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July 2019 Member Moves + News

Posted By USFN, Wednesday, July 31, 2019
Updated: Friday, July 26, 2019

 

Bruce J. Bergman, a member of Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. (USFN Member – NY) is the author of the four volume treatise “Bergman on New York Mortgage Foreclosures”, Lexis Nexis Matthew Bender, which is not only a guide to practitioners, but is cited by courts throughout New York at the trial level, in the Appellate Divisions and by the Court of Appeals.  It has also been cited by the highest courts of California and Connecticut, and most recently, in September 2018, it was cited as authority by the Supreme Court of Virginia in Kerns v. Wells Fargo Bank, N.A., 296 Va. 146.  The volumes were cited as authority for the principle that a cause of action accrues upon acceleration as is explained in the books.



Lerner, Sampson & Rothfuss (“LSR”) (USFN Member – KY, OH) is pleased to welcome Emily Hubbard and Brison Wammes to the ranks of our veteran team of lawyers whose combined professional experience spans over 400 years.  With a concentration on default and complex litigation resolution in Ohio, Kentucky and West Virginia, LSR's attorneys and staff personify the firm's strong business acumen and commitment to superior customer service. Through the highest quality legal work and efficient production, LSR continues to adapt to the ever-changing industry. We look forward to the many contributions our newest associate will make to the LSR tradition of excellence. 


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Why Companies Can’t Wait on Implementing Cybersecurity Measures

Posted By USFN, Wednesday, July 17, 2019
Updated: Tuesday, July 16, 2019

by Kim Bilderback-GSEC, CISSP

Senior Director, National Business Markets East

AT&T Cybersecurity

 



American self-help author Napoleon Hill is credited with saying, “Do not wait: the time will never be ‘just right.’ Start where you stand, and work with whatever tool you may have at your command and better tools will be found as you go along.”

This advice is appropriate when thinking about corpo­rate cybersecurity programs. Too many times, a client has described to me what they’re going to do. Too many times, that same client called seeking assistance with a breach.


One reason for the procrastination is cost, which organiza­tions mistakenly classify as an IT expense. Cybersecurity is actually an important component of a business risk man­agement program. The consequences of a cybersecurity breach are not just something intangible, like loss of brand trust or theft of intellectual property. They’re cold, hard cash out of a firm’s pockets due to individual lawsuits, class action lawsuits, contractual violations, or regulatory fines.

Court ruling after court ruling has made it clear that the time for action is now. Businesses of all sizes are responsible for cybersecurity and accountable for damages when they fail that responsibility. Regulators and governments are increasingly tight­ening the cybersecurity requirements and the penalties for noncompliance.

It’s becoming clearer that custom­ers and business partners, even if they cannot demonstrate monetary impact from a breach, have basis for filing lawsuits for breach damages.

In a May 2019 ruling in United States ex rel. Markus v. Aerojet Rocketdyne Holdings, Inc., et. al, a U.S. District Court ruled that a defense contrac­tor had violated the False Claims Act when it entered into, and invoiced under, U.S. government contracts despite failing to fully satisfy (or oth­erwise disclose the scope of its gaps with) its contracts’ requisite cyberse­curity controls.

Essentially making cybersecurity an even larger business risk, a recent U.S. Supreme Court ruling in Zappos. com v. Stevens confirms customers can sue companies when their data is stolen, even if that data is not used for things like identity theft or making fraudulent charges. The Zappos case will go a long way toward deciding how much liability corporations will have if customer data is exposed, regardless of how it is used.

Think cyber insurance will amelio­rate this risk? Think again. Recently, executives for the snack company Mondelez took some solace in their huge cyber breach knowing that cy­ber insurance would help cover their costs. Or, so they thought.

Mondelez, the victim of a crippling NotPetya malware attack in 2017, learned its insurer, Zurich Insurance, would not cover the attack. Zurich declared Mondelez’s losses collateral damage in a cyberwar and invoked the policy’s “war exclusion” clause. Since the U.S. government assigned responsibility for NotPetya to Rus­sia, all cyber insurers were provided justification to invoke “war exclusion” clauses to not pay claims. The issue is still in the courts.

Consider this analysis by attorneys Karen K. Karabinos, Esq. and Eric R. Mull, Esq. on the implications of Columbia Casualty v. Cottage Health System:


“While the issues surrounding a cyberattack may be complex, com­pliance with the terms and condi­tions of a cyber policy may be as simple as determining if an insured has in place and is following the practices and procedures required under the terms of the policy. As cyber liability and coverage continue to be a growing and ever-changing concern, more and more companies will turn to their insurance carriers for protection. Insureds should be mindful that their failure to answer application questions accurately, their failure to comply with certain practices relating to computer and data security, or their failure to maintain security policies, practices, and procedures may result in the forfeiture of coverage, and in turn, exposure to substantial costs and liability.”


Finally, there is the obligation to prevent risk from insiders. In a re­cent ruling, the UK Court of Appeal upheld a lower court’s decision that the supermarket giant Morrisons is liable for its employees’ misuse of data. In 2015, a former Morrisons employee was convicted of criminal charges for leaking employee pay­roll records. The Court of Appeal’s landmark ruling confirms that Mor­risons is “vicariously liable” for their employee’s criminal misuse of the leaked data.

Morrisons now faces a potential­ly massive payout. The Court of Appeal’s decision paves the way for compensation claims by 5,518 former and current staff members whose personal details were posted on the internet.

What to do? Implementing at least five security essentials is key to cy­bersecurity risk management.

Security Essential 1: IT Asset Dis­covery & Inventory
Think about it. How can you report something stolen if you don’t know what you’ve got in the first place?

Security Essential 2: Vulnerability Scanning
Having inventoried your IT and data assets with asset discovery, you now need to make sure the doors and windows to the assets are shut and locked. That’s what vulnerability scanning does. It scours the perime­ter to make sure all is secure – that known vulnerabilities are patched against.

Security Essential 3: Log Manage­ment & Threat Detection
Log management in cybersecurity is similar to a video camera trained on the front door of a convenience store.

The video camera records the image, date and time of everyone coming into and going out of the store. If the video is monitored indicators of po­tential crime (system compromise) can be detected, an alert sounded, and possible crime averted. Some­one coming through the door, wear­ing a mask, and brandishing a gun could be interpreted as an indicator of potential compromise yielding an alert and proactive crime prevention action taken.

The saved video recordings are a treasure trove of forensic data for the police seeking to investigate after a crime is committed. The video recordings are referenced to identify when a crime occurred, what was stolen and to identify the perpetrator. Absent the video recordings the po­lice would have little hard evidence for investigation. This is exactly what log management and threat detec­tion do for cybersecurity.

Security Essential 4: Security Awareness Training
If the budget allows to manage one cyber risk, this is it. In a 2018 article, cybersecurity expert Michelle Drolet wrote, “The sad truth is that employees are the weakest link in cyber defenses. They are vul­nerable to phishing scams and ran­somware. They also make mistakes. Sometimes they don’t fully under­stand compliance requirements and sensitive data is mishandled.”

“81% of hacking-related breaches over the last year leveraged stolen or weak passwords and 1 in 14 users admitted being tricked into following a link or opening an attachment they shouldn’t have,” said Drolet.

Security Essential 5: Email/Web Filtering
Email alone is the top cybersecurity threat vector. Deploying inexpen­sive technologies that scan emails and monitor web browsing actively detecting and preventing access by known viruses or malicious websites delivers an effective risk manage­ment ROI.

When thinking about implementing cybersecurity measures, it’s import­ant to repeat Napoleon Hill’s warning: “Do not wait.” It may not be a conve­nient moment to implement cyber­security security essentials, but the time is right. Legislation, regulations, and court rulings all show that the consequences of not doing so can have profound risk implications to your business.


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Controlling What You Can When Managing a Natural Disaster Event

Posted By USFN, Wednesday, July 17, 2019
Updated: Tuesday, July 16, 2019

by Jeremy B. Wilkins, Esq., Devin Chidester, Esq., and Jason Branham, Esq.

Brock & Scott, PLLC
USFN Member (AL, CT, FL, GA, MA, ME, MD, MI, NC, NH, OH, RI, SC, TN, VA, VT)

 

Image courtesy of NASA

 

To parse a phrase from Game of Thrones: Hurricane season is coming (or at this point, is here).  For those of us that live and work in the southeastern U.S. this time of year can and usually does have a huge impact on our lives and businesses.  Effects from the hurricanes in late 2018 are still impacting some areas near the Atlantic Coast.  Point being, a hurricane or any natural disaster will decimate communities for prolonged periods of time.  Specifically, in the default servicing industry, the impacts are wide-ranging, and the effects felt from all parties: creditors to borrowers, law firms to government agencies.  This is further compounded by the multiple unknowns that occur prior to and after the fact of the disaster (i.e., timing of the natural disaster event, extent of damage inflicted, and total geographic impact).  Regardless of the unpredictability, post-disaster success requires preparation, planning, and a proactive mindset with governing those criteria that are within an organization’s domain and control.  Guidance during a natural disaster situation is often waning but instilling proper proactive and pragmatic concepts in an institutionalized and organizational manner through a well-defined business continuity plan will mitigate the overall impact of the proverbial storm. 

Compassion
Compassion is the most important underlying concept to any organization’s business preparedness through a natural disaster.  People and how they are treated is the fundamental root that ensures businesses continue to operate after the event.  As the old saying goes, “Things are replaceable, people are not.”  Any business continuity plan must be drafted in light of compassion towards employees and the likelihood of individual needs that flow from the ramifications of a natural disaster.  People are the most important and most valuable asset of any organization.  Awareness of any community evacuation plans is essential to ensuring employees that elect to evacuate on their own personal volition are afforded enough time while balancing work needs.  Disastrous events threaten the safety and stability of a person’s life, loved ones, home, community, and livelihood for unknown lengths of time.  People are understandably distracted, and decision making becomes difficult.  Imparting an emergency plan that is straightforward and guides, informs, and comforts employees during desperate times is the foundation to a successful emergency plan.  In fact, the organization should look externally to involve itself in the community as part of any clean up and recovery efforts and look internally to help those employees adversely impacted.  There is a collective power in altruism that will inure positively in many ways.

Follow a Written Plan
A viable business continuity plan (“plan”) must be in writing, clear yet instructive, and adequately communicated throughout an entire organization.  The plan will set forth duties, responsibilities, and directives for all staff and management to follow before, during, and after the natural disaster.  In the event you have multiple office locations, the plan should be specific to each office to the extent necessary, but also broadly developed for the entire organization.  The plan should serve as the roadmap for your organization’s response and actions both pre- and post- natural disaster event.  The plan should assess possibilities for a broad array of possible natural disasters including potential levels of severity, responses, and security threats.  After implementation, a viable plan should be subject to continual review to ensure successes are maximized and necessary remedial measures are taken.  The plan is the starting point for managing preparedness and by its very nature is a proactive document that will bind the foregoing components by developing controls within the organization for any possibly natural disaster event.  A plan must be in place within each organization-- even if the likelihood of a natural disaster is slim to none.  It is a fundamental, controllable, and proactive measure to ensure employee safety and business stability post disaster. 

Protect Assets
Your organization is only as viable as the assets that define it, including employees, tangible goods, and infrastructure.  Protecting your assets is culturally rooted in caring for the well-being of your people.  An organization’s duty of protection for its assets is predicated on the idea of not placing the assets in a risky situation.    Having a plan that identifies individual leaders/facilitators, establishing communication through readily available methods of checking in or points of contact (i.e., phone tree, text/email address, online portal, etc.), and having known methods of contact for leaders and management to establish employee safety both before, during, and after the natural disaster event.  For instance, Brock & Scott’s North Carolina foreclosure operations were greatly impacted by Hurricane Florence.  Thankfully, the firm’s Business Continuity Plan and the Emergency Response Plan for the Wilmington office included necessary contact points and team members tasked with identifying employee safety as well as office security.  Regular check-ins helped give peace of mind during a hurricane that devastated Wilmington and the surrounding area.  Similarly, Brock & Scott’s Ft. Lauderdale location uses a plan on the same fundamentals around employee safety, clearly identified check-in methods, evacuation routes, and other asset protecting methods.  Communication with staff is not always easy during a natural disaster, especially with potential power outages, but advance knowledge of everyone’s location and an established system of contact will allow an organization to succeed in the midst of adversity.  Employee safety is paramount and should be encouraged at all costs, then focus needs to be on protecting tangible goods and other non-human assets (i.e., original documents, computers, office security, etc.).   

It is essential to safeguard tangible assets belonging to your organization and any others placed in your care.  Depending upon your location, your office structure should be prepared properly in the event of a prolonged power outage or obstructed access (i.e., downed trees, impassable roads, etc.) for an extended period.  Including a reporting system, having regularly scheduled calls with emergency leadership in your organization, and identifying who is responsible for accessing offices/building locations and how ensures assets are safeguarded.  A good Plan will encourage remedial measures to ensure doors are boarded or locked, tangible items are secured, and technology (computers/servers) are managed to prevent security breach and destruction.  It is prudent to take basic remedial measures such as unplugging all electronics and elevating any computers or other physical items from potentially preventable destruction, such as flooding.

With respect to original documents, preventative measures such as cataloguing ones on hand, returning ones to proper holders, or removing to a secured location in another office will ensure unnecessary destruction and help identify any documents that may be lost.  If it is best to relocate them temporarily, ensure appropriate measures for chain of custody are taken.  These measures are necessarily proactive in nature and keeping your client informed and documented will further instill confidence in preparations.  Importantly, these are measures that should exist within your organization’s Plan and the implementation is within your control.  Every decision or criteria for such that can be made or set prior to the disaster, should be made and set and incorporated in the Plan. 

Communication
Communication is the lifeline of a successful plan.  As always, success at any level requires a communication structure both internally and externally as it pertains to the organization.  As part of a successful plan, you must communicate clearly and directly.  The messaging should not be left to interpretation. 

Employees should all know expectations and duties both pre-disaster and post-disaster as appropriate to their location and job responsibilities.  The means of communication should be consistent and within the confines of resources available under the circumstances.  As previously mentioned, communicating with staff throughout is of the utmost importance.  It goes beyond protecting your employee as an asset; it solidifies the strength of the organization. 

Further, communication outside of the organization to clients, court officials, and vendors should also be done clearly and directly.  It is incumbent to ensure external communications project a sense of organizational strength and address in real time (e.g. office operational hours, court closures and delays).  It is advantageous to have resources physically located outside of the natural disaster impact area that capable of communicating with those inside the impact area to convey the message with accuracy.  Ask yourself: “who needs to know what…and when?”  Relevance and timeliness are key components of effective communication.  Often a state of emergency is declared, and this may have long term impacts to pending litigation, available court resources/schedules, or cause legal remedies for distressed individuals (i.e., FEMA claims, insurance claims, delayed mortgage payments, etc.).  Specific facilities may be damaged, closed, or inaccessible.  External communications are going to be a snapshot of the situation on the ground and they will have a long-term impact if not done so with clarity and purpose in a timely manner.  Even in an event of minimal impact, communication be continuously envisioned, planned for, and part of the written plan. 

Outside the Box Thinking
Admittedly, when a natural disaster hits, you must be prepared to move outside of your comfort zone.  A proactive approach to business operations is necessary and should be part of any governing Plan.  For example, in organizations with multiple office locations, a preventative approach may be to reposition staff from a danger zone to one of safety prior to any disaster hitting.  We are fortunate to have a few days’ notice before hurricanes, winter storms, or the like hit a specific jurisdiction.  Operating from another location may have increased cost, but the business maintains function and is not stopped completely.  Another workaround is to utilize remote access for qualified employees post-disaster.  This takes some pressure off employees who are balancing work needs with the personal stresses of the disaster. 

A plan should have in place the ability to cross train staff in other locations.  This ensures minimal functionality and prevents all operations from coming to a screeching halt.  This is where established and proactive uniformity in processes and methodology within an organization’s Plan can allow for outside of the box success and planning.  Furthermore, as a natural disaster makes its impact, there could be extended power outages and travel routes that could additionally impact delivery services, specifically US Mail and overnight mail delivery options.  This could impact processes at all levels and the downline timelines of matters could be greatly crippled.  Having a backup location for mailings to be sent or processed from will prevent any downturn or timeline delay from occurring.  With Hurricane Florence, Brock & Scott used a backup office location not on the coast.  This allowed for mail collection and processing to have minimal interruptions while travel to and from Wilmington was extremely limited.  Another possible remedial step; include the use of private air travel or even boat couriers to transport documents in and around the impacted locations.

Organizations “weather” natural disasters by having policies in place and a plan which is composed well in advance and proactively implemented which incorporates: a true sense of care for its people, a clear plan of action for likely contingencies, measures to protect physical assets including facilities and property, and a means for effectively communicating relevant information to both internal and external recipients who need it to maximize performance and safety.  After taking these steps, creative and resourceful outside-the-box thinking can take the quality of an organization’s response to an even higher level.

 

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Fifth Circuit Clarifies Servicer’s Loss Mitigation Obligations

Posted By USFN, Wednesday, July 17, 2019
Updated: Tuesday, July 16, 2019

Shawnika L. Harris, Esq.
Barrett Daffin Frappier Turner & Engel, LLP
BDF Law Group (TX, GA, CO, CA, NV and AZ)



In Germain v. US Bank National Association, an opinion out of the 5th Circuit Court of Appeals, the court clarifies a servicer’s obligations in reviewing multiple loss mitigation applications. Additionally, the court sends a warning to borrowers and attorneys who manipulate statutory and judicial safeguards in order to escape the borrower’s mortgage obligations.

In July of 2012, Ocwen Loan Servicing, LLC (“servicer”) began servicing Germain’s loan. By August, Germain defaulted on the loan and the servicer-initiated foreclosure proceedings. Germain submitted his first request for a loan modification, which was denied on the basis that the owner of the note did not allow for modification. Germain brought the loan out of default, and the servicer did not continue processing the borrower’s loss mitigation application.

Over the next two years, Germain went in and out of default several times, filed for bankruptcy, which was later dismissed, and submitted two more applications for a loan modification. The servicer denied each request and presented alternative loss mitigation options. Germain failed to take advantage of any options presented.

In February 2014, the borrower again submitted a loss mitigation application and requested a loan modification. The request was denied in writing on the grounds that the owner of the loan did not allow for loan modification and other loss mitigation options were presented, including the option of a short sale.

In 2015, the servicer accelerated the loan and Germain filed suit alleging two primary claims: (1) the servicer was in violation of the Real Estate Settlement Procedure Act (“RESPA”) by failing to provide a written explanation of its loss mitigation analysis for all four times the borrower submitted an application, and (2) violating the Texas Debt Collection Act (“TDCA”) by proceeding with foreclosure without complying with RESPA and urging Germain to submit loss mitigation applications knowing that it would be treated as a loan modification and subsequently denied.

Section 1024.41 (c) and (d) of the Code of Federal Regulations, relied on by the borrower, states that the loan servicer must evaluate the borrower for all loss mitigation options and provide a written explanation of all options or the specific reasons the borrower was denied for loss mitigation. Section 1024.41(i), which states the servicer is only required to comply with the requirements of sections (c) and (d) for one complete loss mitigation application for the borrower’s mortgage account came into effect in 2014. The court in Germain ruled that servicers should be credited for its compliance, even if that compliance occurred prior to the effective date of the statute.

The court relies on the analysis in Campbell v. Nationstar Mortgage out of the 6th Circuit and the district court opinion in Allen v. Wells Fargo Bank, N.A to determine whether section 1024.41 should apply retroactively in this instance. In Campbell, the court concluded that 1024.41 could not be applied retroactively because doing so would have imposed a duty on the servicer to not foreclose on the property when no such duty existed at the time of the foreclosure. The court in Allen reasoned that a servicer’s past conduct should apply when reading 1024.41(i) because failing to do so would exclude an entire category of borrowers from the limitation on duplicative requests where there was no intention to exclude such borrowers.

The court in Germain reconciles these seemingly conflicting opinions by delineating the difference between applying 1024.41 retroactively to impose a new duty to prior actions and crediting the servicer for its compliance with 1024.41 prior to the effective date of the statute. In other words, section 1024.41(i) should be retroactively applied because the purpose of the statute was to bring servicers into compliance, not make compliant servicers repeat their compliance.

Germain also raised TDCA violation claims which the court quickly dismantled. Germain alleged that the servicer violated the TDCA by threatening to foreclose on the property without complying with RESPA, and “urging [him] to submit a loss mitigation application, although the Defendants knew that [his] application would be treated as a loan modification and would be summarily denied without consideration.” The first TDCA claim was dismissed by the court based on their findings that the servicer was not in violation of RESPA. Germain’s second TDCA claim relied on language in Tex. Fin. Code § 392.304(a)(14) and (19) which forbids fraudulently, deceptively, or falsely misrepresenting the nature of services rendered by the debt collector or any other false representation to collect a debt or obtain information from the consumer. Germain argued that the servicer violated this provision by encouraging Germain to submit loss mitigation applications that would be treated as a request for loan modification and subsequently denied. The court disagreed, reasoning that the servicer did not promise a loan modification, nor did Germain offer any evidence that the servicer requested loss mitigation materials knowing the application would be denied. Further, the servicer provided Germain with several loss mitigation options other than a loan modification, including the option of a short sale. Germain failed to take advantage of any of the suggested options.  

What does the Germain decision mean for mortgage servicers?
First, servicers are only required to comply with the requirements of 1024.41(i) for a single complete loss mitigation application for the borrower’s mortgage loan account. The purpose of the statute is to eliminate the necessity for servicers to review and advise findings on duplicative loss mitigation applications. To be in compliance with 10241.41 the servicer must provide the borrower with one complete written notification of its loss mitigation determination, an explanation for any rejections, and any available options the servicer will provide the borrower. In addition, the court determined that when a servicer has previously provided the borrower with the name of the owner of the note, and that owner has not changed, the servicer’s compliance with 1024.41 is not defeated because the writing does not include the name of the note holder.

Additionally, servicers are not required to raise section 1024.41(i) as an affirmative defense. Germain argued that he did not receive proper notice and adequate time to prepare for the servicer’s motion to dismiss because 1024.41(i) was not raised as an affirmative defense, relying on Amarchand v. CitiMortgage, Inc. where the court contended that section 1024.41(i) was better raised an affirmative defense. The court in Germain disagreed. The court determined that when the defendant raised section 1024.41(i) in their motion for summary judgment, it was an expansion of the denial in their answer, arguing that they did not violate RESPA because they did, in fact, comply with the statute. Therefore, 1024.41(i) should not be considered an affirmative defense, and servicers are not required to raise it as such.

Finally, section 1024.41(i) should be applied retroactively for servicers who were in compliance with the statute prior to its effective date to eliminate the necessity for repeated compliance. The court looks at whether the statute expressly invokes retroactivity, and if not, the court must determine whether the new provision attaches new legal consequences to events completed prior to enactment. Although the court believes that section 1024.41 is not retroactive as a whole, the language of the statute takes into account the servicers past actions. If the servicer was not in compliance prior to the effective date of the statute, their foreclosures cannot be challenged on the basis of compliance because doing so would impose a duty not present at the time of the foreclosure sale. However, if the servicer provided a complete written explanation of their loss mitigation determination to the borrower, the 5th circuit contends that retroactivity applies in order to credit the servicer for the prior compliance.

In the ad hominem conclusion, the Germain court sends a clear message to borrowers and attorneys using the protections put in place to protect borrower’s interests as a weapon to avoid making payments.

 

The history of this case demonstrates beyond cavil that Germain has spent the last 10 years gaming the system through a series of applications for loan modification, a flawed bankruptcy filing, and the institution of this lawsuit. Doing so has enabled him to achieve his one overarching goal: The prolonged occupancy of his residence with little or no payment on his mortgage debt. With the help of cunning counsel, Germain used the intended shield of RESPA, TDCA, and various state and federal laws as a sword to avoid (or at least minimize) his mortgage payments while continuing the decade-long occupancy of his encumbered house. Today's termination of Germain's abuse of the system is long overdue. We caution Germain, and his present and future counsel, if any, that further machinations to prolong this litigation or delay foreclosure proceedings could and likely will be met with sanctions.”


Germain is a win for the industry. It eliminates the need for duplicative response and provides protections for servicers who began CFPB compliance prior to the effective date of the rules.  It also eases the pleading requirements in defending suits alleging CFPB violations. The court also makes clear it will not tolerate continued gamesmanship by borrowers and their counsel to delay foreclosures.

 

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Fifth District Court Holds Bank Entitled to Designate Corporate Representative for Deposition

Posted By USFN, Wednesday, July 17, 2019
Updated: Tuesday, July 16, 2019

Roy Diaz
SHD Legal Group, PA
USFN Member (FL)



In May, the Fifth District Court of Appeal granted certiorari relief to US Bank, quashing a circuit court’s order compelling the bank to produce a specific person for an out-of-state deposition in a residential foreclosure action (U.S. Bank Nat'l Ass'n as Tr. for Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns Arm Tr., Mortgage Pass-Through Certificates, Series 2006-2 v. Williamson). In Williamson, the bank-initiated foreclosure proceedings against the Williamsons by filing a verified complaint. Five years into the litigation, the bank filed an amended complaint which “was verified by Nicholas Raab, an employee of Bank's loan servicer…”

The borrowers sought to depose Mr. Raab and moved to have him “treated as the Bank’s ‘corporate officer’” under Fla. R. Civ. P. 1.310(b)(6), but the bank objected. The requested designation as corporate officer was significant for two reasons:

  • First, if Mr. Raab was designated as US Bank’s corporate representative, the bank would be required to produce Mr. Raab for deposition in Orange County, Florida, where the bank filed the foreclosure action. Mr. Raab lived and worked in Colorado.

  • Second, if deemed US Bank’s corporate representative, Mr. Raab would be required to testify regardless of his familiarity with the specifics of the Williamsons’ loan or US Bank’s records, policies, and procedures. Notwithstanding the clear language of rule 1.310((b)(6) which gives the bank authority to designate its own corporate representative, the circuit court granted the Williamsons’ motion to compel. The bank sought certiorari relief from the Fifth District Court of Appeal.

Certiorari relief is rarely sought and even more rarely granted. Appellate courts seldomly grant certiorari relief because it pertains only to non-final orders which can be incorporated into a plenary appeal of a final order. Review of non-final orders can lead to piecemeal litigation which the courts understandably seek to avoid. Notwithstanding, if a party can demonstrate the lower court departed “from the essential requirements of the law” and that said departure will result in “material injury…throughout the remainder of the proceedings below” the Court may grant certiorari relief. The District Court of Appeal concluded the order compelling Mr. Raab to appear for deposition in Florida as the bank’s designated corporate representative constituted such a departure.


The District Court of Appeal pointed out that Mr. Raab was not a party to the litigation and was not employed by US Bank but rather the bank’s loan servicer, “a separate corporate entity.”  Although the bank would be required to produce its corporate representative for deposition in Florida under rule 1.310(b)(6), the borrowers were not permitted to unilaterally designate Mr. Raab as the bank’s corporate representative.  The Court explained that only the bank had the authority to designate who would testify at the deposition on the corporation’s behalf. The Court granted certiorari, quashed the order compelling Mr. Raab to appear for the deposition in Florida and the order was final on May 26, 2019.

This ruling is appropriate and consistent with the way the servicing industry operates. Considering the number of servicing staff that touch loans being serviced, it would be untenable to allow an opposing party to select who should testify as the corporate witness. The law simply does not support such a position.

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California Supreme Court Limits Application of the State’s Anti-Deficiency Statute

Posted By USFN, Wednesday, July 17, 2019
Updated: Monday, July 15, 2019

Melissa Coutts, Esq. and Andrew J. Boylan, Esq.
McCarthy & Holthus, LLP
USFN MEMBER (AZ, CA, CO, ID, NM, NV, OR, TX, WA)



In Black Sky Capital, LLC v. Cobb[i], the Supreme Court of California recently held that where a creditor holds two deeds of trust on the same property, a nonjudicial foreclosure of the senior lien does not preclude the creditor from obtaining a monetary judgment on the extinguished junior lien, where there is no allegation of evasive loan splitting or other “gamesmanship scenarios.”

California’s anti-deficiency statute[ii] prohibits a creditor from collecting a deficiency judgment — that is, the difference between the amount of indebtedness and the fair market value of the property — following a nonjudicial foreclosure, even if the property is sold for less than the amount of the outstanding debt.

For the past 20 years, the leading case on this topic has been Simon v. Superior Court[iii], which held that “where a creditor makes two successive loans secured by separate deeds of trust on the same real property and forecloses under its senior deed of trust’s power of sale, thereby eliminating the security for its junior deed of trust, Section 580d [California’s anti-deficiency statute]…bars recovery of any ‘deficiency’ balance due on the obligation the junior deed of trust secured.” Thus, a creditor that forecloses on its senior deed of trust is precluded from any recovery for the amount owing under the junior deed of trust. There have been several cases following the reasoning provided in Simon, as did the trial court in this case.

However, both the Court of Appeal and Supreme Court of California disagreed with this reasoning, instead concluding that although the lienholder is the same for the senior and junior, “[a]ny debt owed on the junior note in this case has no relationship to the debt owed on the senior note.”[iv] The Supreme Court noted that the language of section 580d makes clear that it was only intended to prevent a deficiency judgment on the deed of trust securing the note that was foreclosed, and not under some other deed of trust. Therefore, the anti-deficiency analysis should only apply to the senior deed of trust.

It is important to keep in mind, however, that the Supreme Court’s decision was driven in part by the factual scenario presented in the case. The Court noted that “in Simon, the junior and senior loans were issued just four days apart, and the deeds of trust securing the loans were recorded on the same date.”[v] But in this case, the loans were issued more than two years apart and there was no “evidence of gamesmanship” or “loan splitting.” Therefore, the loans were treated separately, and since no sale occurred under the junior deed of trust, the statute does not bar a deficiency judgment with respect to the note it secured.

Although this case brings some clarity to the issue, it should not be relied upon blindly. The Court spent time reflecting that it has “consistently looked to the purposes of the statute and to the substance rather than the form of loan transactions in deciding the … applicability [of antideficiency statutes].”[vi] And although this case was distinguishable from Simon, the opinion cautions against “gamesmanship scenarios” or where there is clear evidence of intentional loan splitting. Thus, when a creditor holds both senior and junior deeds of trust, a case-by-case analysis should be undertaken to determine whether it is permitted to sue for judgment on the note secured by the junior deed of trust after completion of a nonjudicial foreclosure on the senior.


[i] Black Sky Capital, LLC v. Cobb (2019) 7 Cal.5th 156.

[ii] Code of Civil Procedure Section 580d

[iii] Simon v. Superior Court (1992) 4 Cal.App.4th 63, 66.

[iv] Black Sky, at p.897

[v] Simon, supra, 4 Cal.App.4th at p. 66.

[vi] Coker v. JPMorgan Chase Bank, NA (2016) 62 Cal.4th 6678, 676.

 

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New Jersey Enacts Nine Bills Affecting Residential Foreclosure Process

Posted By USFN, Wednesday, July 17, 2019
Updated: Monday, July 15, 2019

Rosemarie Diamond
Phelan Hallinan Diamond & Jones, PC
USFN Member (FL, GA, NJ, PA)



In late 2018, the New Jersey Judiciary released a report from its Special Committee on Residential Foreclosure. The report contained specific proposals for revising state statutes and court rules to improve the foreclosure process. In response to the Committee’s report, the legislature passed, and Governor Murphy enacted, nine bills affecting the residential foreclosure process.  Signed on April 29, 2019, some of the bills went into effect immediately, with all taking effect by November 1, 2019.

The most immediate impact for lenders is a series of new disclosure requirements for the Notice of Intention to Foreclose (“NOI”) that takes effect between April and November of 2019. As of April 29, 2019, the lender identified in the NOI must disclose whether it is licensed under the New Jersey Residential Mortgage Lending Act (“NJRMLA”) or if it is exempt. The “lender” in the NOI is the intended plaintiff in the foreclosure action, entitled to enforce the note, and the assignee of the mortgage. By August 1, 2019, the NOI must disclose that the borrower has a right to housing counseling at no cost through the court’s foreclosure mediation program and if the mortgaged property meets certain conditions set forth in the statute, the lender must then seek appointment of a rent receiver. And, by November 1, 2019, the NOI must disclose that if the lender initiates foreclosure, the borrower has the option to participate in the foreclosure mediation program. This disclosure must be in English and Spanish. The Court has communicated an expectation that the entire mediation application be provided with the NOI. The mediation application does include an English/Spanish disclosure, but all application forms are written as if the foreclosure action had already been filed, which may confuse borrowers. 

Another critical change to the NOI is the creation of an expiration period.  Effective August 1, 2019, once an NOI is sent the lender has 180 days to file the foreclosure complaint. If the lender fails to meet the deadline a new NOI must be sent and the cure period, which is 30 days, for the borrower must be allowed to run before the complaint is filed. The statute does not contain any exceptions or tolling language.

The legislature shortened the 20-year statute of limitations relating to the date of default. The time frame is now six years from the date of default for mortgages originated on or after April 29, 2019. Also, effective August 1, 2019, the Court may reinstate a foreclosure complaint dismissed without prejudice no more than three times. One caveat to this rule is that if the dismissal was caused by the lender’s obligation to comply with federal laws or regulations then the related reinstatement of the complaint will not count toward the maximum number of allowable reinstatements.

The legislature also codified the Court’s foreclosure mediation program. Much of the structure and process will remain the same, but borrowers will be required to meet with a certified housing counselor and submit a certification of participation. If they do not participate in counseling they cannot participate in mediation. Lenders who fail to mediate in good faith will be subject to civil penalties of up to $1,000 and other sanctions, including the borrower’s attorney’s fees. Also, lenders must be prepared to evaluate borrowers for most loss mitigation options including loan modification, loan workout, refinancing agreement, short sale, deed in lieu of foreclosure, and any agreement leading to the dismissal of the foreclosure action. The mediation program will be funded through a $155 increase in the cost to file a foreclosure complaint.

The sheriff’s sale process is also undergoing significant changes. The sheriff will have 150 days to schedule a sale. This is up from 120 days.  Also, the sale can only be postponed five times without a court order. Postponements will be allocated - two for the borrower, two for the lender, and one that the parties can mutually request. Postponements are lengthened from 14 days to 30 days. Lender’s counsel will be responsible to prepare and provide the Sheriff’s Deed to the sheriff within ten days of the sale. The sheriff has two weeks to deliver the deed, provided the bid has been paid.

The legislature also expanded the requirements for municipal notices. Contact information must be (1) sent to the municipal clerk and chief executive of the municipality, (2) filed with the foreclosure complaint, and (3) recorded with the Lis Pendens. If any of the information in the notice changes, the lender has ten days to mail, file, and record the new notice. The notice must include full names, addresses, and telephone numbers for representatives responsible for receiving complaints and code violations and the full name and contact information for anyone retained by the lender for care, maintenance, security, and upkeep of a vacant and abandoned property. The notice must also contain the telephone number of an in-state representative who can be contacted if the property becomes vacant and abandoned.

The limited lien priority previously provided only to condominium associations has been expanded to all common ownership communities except cooperative corporations.  A qualifying limited priority lien is now cumulative, renewable annually for five years, and no longer subject to expiration after five years. Community associations must provide a unit owner or a purchaser of the unit with a certificate of the amount due within ten days of receiving a request. Any person who relies on the certificate, other than the owner, will be liable only for the amounts on the certificate.  

The legislature created the Residential Mortgage Servicing Act, authorizing the Department of Banking and Insurance (DOBI) to oversee the licensing and registration of mortgage servicers.  There are exemptions to the Act as well as civil and criminal penalties for failure to comply.

Lastly, the legislature changed certain aspects of the expedited foreclosure process enacted in 2008. The changes do not require lenders to expedite foreclosure, but if a lender chooses to do so and the Sheriff cannot expedite the sale then the lender must file a motion requesting appointment of a special master.  Also, if the lender requests a properly supported, expedited foreclosure post-judgment, then the Court must enter an order expediting the foreclosure and cannot require a hearing if the motion is uncontested.

As the industry sorts through the many changes enacted by the New Jersey legislature, it is recommended lenders and their counsel work together to adjust statute of limitations management, timeline reporting, and approvals for new procedures and the associated fees and costs. Over the course of the next year the full effects of the changes will emerge, and we will all gain a better understanding of the long term impact on residential foreclosure process.

 

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Illinois Court Finds General Denial as Admission Condition Precedent

Posted By USFN, Wednesday, July 17, 2019
Updated: Monday, July 15, 2019

Marcos Posada
McCalla Raymer Leibert Pierce, LLC
USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY)



The Appellate Court of Illinois has offered a bit of guidance for practitioners in prosecuting mortgage foreclosure actions. The Court in Bank of N.Y. Mellon v Wojcik, 2019 IL App (1st) 180845, was presented with the issue of whether the trial court erred in denying the defendants’ cross-motion for summary judgment in a foreclosure action concerning defendants’ condominium unit. In answering the Complaint to Foreclose, defendants’ answer denied the deemed allegation found in 735 ILCS 5/15-1504(c)(9) that any and all notices of default or election to declare the indebtedness due and payable or other notices required to be given have been properly given. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 7.

In response, Bank of New York argued that defendants had waived their argument because there were no specific facts raised to show how the condition precedent had not been met. In essence, Bank of New York utilized the requirements of Illinois Supreme Court Rule 133(c). As the Court in Wojcik found, Rule 133(c) requires when pleading a condition precedent, e.g., sending of a notice of default, that it is sufficient to allege that the party completed the conditions on their part and that if the allegation is denied, specific facts must be alleged showing where there was a failure to perform. Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 20.

Further, relying on other Illinois decisions, the Wojcik Court stated, “[A] general denial to an allegation of the performance of a condition precedent in a contract is treated as an admission of that performance.” Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 21. Accordingly, the Court refused to allow contradiction at the summary judgment stage and instead found that the defendants’ judicial admission in their answer as to the deemed allegations of the Complaint to Foreclose did not lead to an issue of fact, thereby affirming the decision of the trial court denying defendants’ cross-motion for summary judgment.

This opinion sent a strong lesson on Illinois Supreme Court Rule 133(c): “As our supreme court has recognized: "The rules of court we have promulgated are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bank of New York Mellon v. Wojcik, 2019 IL App (1st) 180845, ¶ 24 citing Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 209 Ill. Dec. 735 (1995).

In practice, it has been common for defendants’ answers to Complaints to Foreclose to include general denials of deemed allegations, including the deemed allegation that required notices were sent. Often, when a party denies a deemed allegation, Illinois Courts have required plaintiffs, at the summary judgment stage, to establish that notices were sent, which makes this opinion particularly beneficial to plaintiffs in foreclosure matters. Adopting the approach in Wojcik in Illinois will improve judicial economy and ensure that cases are decided upon the merits rather than simply making a plaintiff jump through hoops after already establishing a prima facie case for foreclosure.

 

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New York Announces Creation of Consumer Protection and Financial Enforcement Division

Posted By USFN, Wednesday, July 17, 2019
Updated: Monday, July 15, 2019

Megan K. McNamara, Esq.
Berkman, Henoch, Peterson, Peddy & Fenchel, PC
USFN Member (NY)



The New York Department of Financial Services (“DFS”) announced the creation of the Consumer Protection and Financial Enforcement Division (“CPFED”) on April 29, 2019.  In the press release, Linda Lacewell, the acting DFS Superintendent, stated that the CPFED would be a “powerhouse” that combines seven previously separate units and departments into one united division under the leadership of Katherine A. Lemire, the newly appointed Executive Deputy Superintendent. The seven departments that are now consolidated into the CPFED include the Enforcement Division, the Investigations and Intelligence Division, the Civil Investigations Unit, the Producers Unit, the Consumer Examinations Unit, the Student Protection Unit, and the Holocaust Claims Processing Office.

Lacewell stated in the press release that the purpose of the CPFED is to protect and educate consumers against consumer fraud. In addition, the department will enforce state and federal law with respect to banking, insurance, and financial services. The press release specifically stated that the CPFED “is also responsible for developing investigative leads and intelligence in furtherance of the Department’s efforts to enforce the Banking, Insurance and Financial Services laws, with particular focus on the review and response to cybersecurity events and the development of supervisory, regulatory and enforcement policy and direction in the area of financial crimes.”


The creation of the CPFED appears to be a reaction to what is perceived by DFS as a policy shift within the Consumer Financial Protection Bureau (“CFPB”) to be friendlier to the financial services industry leaders. Notably, in January 2018, then DFS Superintendent, Maria Vullo said, “I am disappointed by the new administration’s sudden policy shift, which is clearly intended to undermine necessary national financial services regulation and enforcement.”

Vullo further stated that “DFS remains committed to its mission to safeguard the financial services industry and protect New York consumers, and will continue to lead and take action to fill the increasing number of regulatory voids created by the federal government.”

Since January 2018, the scene and its players have changed dramatically.  Specifically, Vullo left her position as DFS Superintendent, with Lacewood taking over, and the CFPB appointed Kathy Kraninger as its director in place of acting director Mick Mulvaney. This shakeup is expected to have a dramatic impact on the shape of both CFPB and DFS. As a result, mortgage servicers and their lawyers may be paying close attention to the climate change and the affect that it will have on the foreclosure process.

In late 2016, New York State implemented new regulations with respect to vacant and abandoned properties, also known as “zombie-houses.” These regulations put greater requirements on lenders and mortgage servicers to secure and maintain vacant properties that are in foreclosure. In addition, the failure to comply came with the potential for substantial fines from DFS. The creation of the CPFED is likely to yield additional regulations in line with the zombie-house initiative, and as such, will likely lead to foreclosure actions being a prime focus of the division.    

While it is hard to predict the direction of this newly created department, it is expected to involve cybersecurity. DFS promulgated 23 NYCRR Part 500, a regulation establishing cybersecurity requirements for financial services companies, which took effect March 1, 2017.  These requirements may affect how the CPFED will focus its efforts on enforcing these regulations as DFS did with zombie-houses.

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U.S. Supreme Court Sets Legal Standard for Violations of Bankruptcy Discharge Order

Posted By USFN, Monday, July 8, 2019

by Kinnera Bhoopal, Esq.

McCalla Raymer Leibert Pierce, LLC

USFN Member (AL, CA, CT, FL, GA, IL, MS, NV, NJ, NY)

 

  

On June 3, 2019, the U.S. Supreme Court issued an opinion in Taggart v. Lorenzen, 2019 U.S. LEXIS 3890 after a series of appeals in the lower courts. The Ninth Circuit courts vacillated on the type of legal standard to apply in a bankruptcy related civil contempt case ranging from strict liability to a subjective standard. However, the U.S. Supreme Court unanimously decided that the legal standard to apply when determining whether to impose civil contempt sanctions for violating a discharge order is an objective standard termed “the fair ground of doubt.” Id. at 133.

The Petitioner, Bradley Taggart, was sued by the Sherwood Company in State Court. Before the trial started, Taggart filed a Chapter 7 bankruptcy case and received a discharge. After the discharge order was entered, Sherwood moved to recover attorney fees that were incurred post-petition from Taggart. Both the State Court and the Bankruptcy Court agreed that Taggart was liable for the attorney fees. These courts followed the guidance of a Ninth Circuit case,
Boeing North American, Inc. v. Ybarra (In re Ybarra), 424 F.3d 1018 (9th Cir. 2005). The Ybarra Court held that post-petition attorney fees stemming from pre-petition litigation were usually discharged unless the debtor “returned to the fray” post-petition. Id. at 1024. The State Court and Bankruptcy Court determined that because Taggart undertook actions with respect to the litigation with Sherwood Company following the discharge, and thus returned to the fray, Sherwood’s petition to recover attorney fees did not constitute a violation of the discharge order.  Taggart v. Lorenzen, 2019 U.S. LEXIS at 133-134. 

 

Taggart appealed to the Federal District Court, which concluded that Taggart did not “return to the fray” and thus remanded the case to the Bankruptcy Court. Based on the District Court’s ruling, the Bankruptcy Court held Sherwood in civil contempt for violating the discharge order employing a strict liability standard. Under this standard, any violation of the discharge order whether malicious or innocuous, reasonable or not, would be subject to sanctions. Since Sherwood was aware that a discharge order was entered and intentionally sought to collect a debt, it was held in civil contempt. In re Taggart, 522 B.R. 627 (Bankr. D. Or. 2014).

 

Sherwood appealed, and the Bankruptcy Appellate Panel vacated the sanctions, which the Ninth Circuit affirmed by employing a more liberal legal standard referred to as the subjective standard. Lorenzen v. Taggart (In re Taggart), 888 F.3d 438 (9th Cir. 2018). The Ninth Circuit found that Sherwood had a subjective, good faith belief that the post-petition attorney fees were not discharged thus it held that Sherwood was not in civil contempt. See id. at 444. The Ninth Circuit went further to state that a good faith belief precludes a finding of civil contempt even if the creditor’s beliefs are unreasonable. Therefore, a creditor’s subjective belief of righteousness is sufficient to evade sanctions under this legal standard. See id. at 444.

 

Given the divergent legal standards employed by the lower courts, the U.S. Supreme Court granted certiorari to answer the narrow question of what the applicable legal standard is when a bankruptcy discharge order is violated. The Supreme Court’s analysis began with the statutory provisions of 11 U.S.C. §524 and §105, which authorize bankruptcy courts to impose civil contempt sanctions.  Section 524 of the United States Bankruptcy Code (“Bankruptcy Code”) states “a discharge order operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset” a discharged debt. Given that Section 524 of the Bankruptcy Code evokes injunctions, the U.S. Supreme Court reasoned that parallels may be drawn from the long-standing history governing injunction violations, which it then applied to the bankruptcy paradigm.

 

The U.S. Supreme Court explained that civil contempt also exists outside of bankruptcy and in those contexts the U.S. Supreme Court has held that there should not be a finding of civil contempt when there is “a fair ground of doubt” about whether a party acted unlawfully. This is an objective standard because a party’s subjective belief that he was complying with an order will not insulate him from civil contempt if the party’s belief was objectively unreasonable. This standard also acknowledges that civil contempt is a severe remedy such that explicit notice of what constitutes unlawful conduct is necessary before holding a party in civil contempt.

 

Moreover, the U.S. Supreme Court noted that a problem with the strict liability standard is that it is all encompassing and would promote excessive use of an extraordinary remedy for any perceptible breach regardless of the reasonableness of a creditor’s conduct. Conversely, the subjective standard relies too heavily on a creditor’s state of mind, which is difficult to prove. Additionally, the subjective standard deviates from principles of equity because a party’s subjective belief does not have to be reasonable or prudent to evade liability.

 

Based upon the findings detailed above, the U.S. Supreme Court ruled that an objective standard is the prevailing legal standard to apply in bankruptcy related civil contempt cases. It further held that a creditor may be held in civil contempt for violating a bankruptcy discharge order when there is not a “fair ground of doubt” as to whether the creditor’s conduct was unlawful under the discharge order. Consequently, the Supreme Court vacated and remanded the case to the Ninth Circuit Court of Appeals to review the matter using the objective standard.

 

In issuing this ruling, the U.S. Supreme Court struck a balance between protecting the integrity of a bankruptcy discharge order while not exposing creditors to an excessive risk of liability. Therefore, Bankruptcy Courts in every jurisdiction are now required to use the more moderate, “fair ground of doubt,” standard when determining whether to hold a party in civil contempt for violating a bankruptcy discharge order. While the U.S. Supreme Court’s ruling is of national importance it is particularly notable for the Ninth Circuit where creditors previously enjoyed a more favorable, deferential, standard of review. However, the U.S. Supreme Court’s standard will help foster equity between the competing interests of debtors and creditors in a more clear and objective manner.

 

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If Mortgage Debt is Not Paid in Full, Funds Beyond Mortgagee’s Bid are Not Surplus Proceeds

Posted By USFN, Monday, June 17, 2019
Updated: Tuesday, June 18, 2019

by Matthew Levine, Esq.
Trott Law, PC
USFN Member (MI, MN)

The Michigan Court of Appeals, once again, addressed the rights of a foreclosing mortgagee to foreclosure sale proceeds.  In re Claim for Surplus Funds, BAERE Co. v Specialized Loan Servicing, LLC, Case No. 344016, the foreclosing party, Specialized Loan Servicing, LLC. (“SLS”) brought a mortgage loan to foreclosure and submitted a bid in the amount of $20,300.00, which represented only a portion of the $51,915.75 total debt.   On the date of sale, a third party successfully purchased the property for $51,915.75. The Kent County Sheriff turned $20,300.00 over to SLS, however, the Sheriff held onto the remaining funds.

Prior to the foreclosure sale, BAERE Co. purchased the subject property from the mortgagor. Following the foreclosure both BAERE and SLS filed claims for the funds held by the sheriff. SLS claimed the funds as the mortgage remained unsatisfied. BAERE claimed the funds as the successor to the mortgagee under MCL 600.3252.  Given the fact that two parties claimed the same funds, the issue was left for the court to “make an order in the premises directing the disposition of the surplus moneys or payment thereof in accordance with the rights of the claimant or claimants or persons interested,” MCL 600.3252.

BAERE made two arguments that ultimately became the subject of appeal. First, it argued that, because SLS received $20,300.00 as proceeds from the sale, and a foreclosure satisfies the underlying mortgage, SLS was not entitled to the remaining funds. Second, BAERE argued that because SLS provided a specified bid in an amount less than the total debt, it was acquiescing to satisfaction of the debt in an amount less than the total debt. The Kent County Circuit Court found in favor of SLS and BAERE appealed. While this issue has been with the Michigan Court of Appeals, this represents the first published opinion directly on the topic.

The primary questions were whether the mortgage was satisfied upon receipt of its bid amount and whether there was a surplus. MCL 600.3252 includes the phrase “after satisfying the mortgage on which the real estate was sold.” The Court of Appeals noted:


The terms “satisfy” and “surplus” are not defined in the statute. As a result, we will consult the dictionary to determine the common and ordinary meanings of the words. See Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802 NW2d 281 (2011). The word “satisfy” is defined, in relevant part, as “to carry out the terms of (as a contract); DISCHARGE,” and “to meet a financial obligation to.” Merriam-Webster’s Collegiate Dictionary (11th ed). Merriam-Webster’s collegiate Dictionary (11th ed) defines “surplus,” in pertinent part, as “the amount that remains when use or need is satisfied.”


The Court of Appeals held that satisfaction of the mortgage, as used in MCL 600.3252, necessarily means satisfaction of the debt, unless the total amount due under the mortgage is paid. In the matter before the Court, the total debt was not paid, therefore, the mortgage was not satisfied. Specifically, the Court held


 it is unambiguous that ‘satisfying the mortgage’ refers to paying off the entirety of the debt secured by the mortgage. In other words, satisfying a mortgage and extinguishing the mortgage are not synonymous. It is therefore beyond dispute that respondent’s mortgage was not ‘satisfied,’ and no surplus funds existed for petitioner to seek.


BAERE alternatively argued that submission of a bid amount less than the total debt is an express agreement to accept less than the debt amount as satisfaction, thus any additional amount would constitute a surplus. The Court of Appeals held that a bid sheet is not a contract or a binding admission establishing the debt (“We are aware of no law requiring mortgagees to bid the full amount owed during a foreclosure sale, and we decline to create any such law.”)

It is, of course, possible that one of the parties will appeal this decision, and that the Michigan Supreme Court will agree to hear the matter; however, this appears to be an unlikely outcome. Assuming the Michigan Court of Appeals decision remains in place, it is expected that counties across Michigan will modify their procedures in order to comply with BAERE.   Until such a time that procedures fully complying with BAERE are implemented, each case should be reviewed on an individual basis for a determination as to whether the foreclosing entity is entitled to additional funds from the sheriff’s sale proceeds.

 

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USFN Briefing Follow-up: REO/Eviction

Posted By USFN, Monday, June 17, 2019

by Camille R. Hawk, Esq.

Walentine O’Toole, LLP

USFN Member (IA, NE)

During April’s REO/Evictions USFN Briefing, the panel covered a number of topics, including: legislative updates from Connecticut, California, New Hampshire and Ohio; case law updates from Rhode Island, Ohio, Illinois and the U.S. Supreme Court; and industry issues such as FEMA protection in Nebraska and Iowa and gas explosions in Massachusetts. Panelist Camille Hawk gives an update on Nebraska and Iowa flooding and disaster issues below.

Post webinar downloads and a schedule up upcoming topics
may be found on the USFN Briefings webpage.

As you likely are aware, there were announced major disaster declarations for several counties in Nebraska and Iowa due to recent flooding in March 2019.  FEMA coordinated efforts to assist those impacted. 

 

Lenders started placing files on hold in March for a period of time (originally through June 19, 2019) in order to assist borrows in their recovery process.  Between March 2019 and June 2019, the recovery in the states has been slow and much damage continues to impact homeowners, their businesses, and farming operations.   Examples of the impact include entire herds of livestock being lost, delayed ability to plant crops, and the inability to plant crops this year due to the washing away of the soil.  Many roads and bridges are destroyed by the water, resulting in closed roads that needed to be rebuilt.  

 

The impact is further worsened in several counties by additional rain and flooding in May and early June, which may result in extended FEMA holds. It is expected that those impacted, particularly the farm communities, will take years to fully recover.  

 

The specific farming impact is expected to trickle down to other industries locally and nationally, causing yet further financial hardships for homeowners.  Grocery prices and transportation prices are expected to increase, and those increases will not be limited to the Midwest.  The flooding in these states, along with the flooding in other areas of the country, will compound the resulting issues.  The FEMA holds may come to an end soon, but the impact will continue with increased defaults and increased need for loss mitigation.  Circumstances will turn around, but it will just take time. 

 

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Freddie Mac Adjusts Approved Attorney Fees

Posted By USFN, Monday, June 17, 2019

by Edward Kirn, Esq.
Powers Kirn, LLC
USFN Member (NJ, PA)

On April 18, 2019, Freddie Mac released its most recent Guide Bulletin to Servicers addressing many important items, including making adjustments to the approved attorney’s fees and title expenses associated with uncontested foreclosures, some much needed adjustments to the approved Servicer reimbursement amounts for attorney fees associated with specific bankruptcy services, and also made some adjustment to the expense limit for skip tracing and investigative reports.  The bulletin also addressed changes and updates to property insurance loss settlements, partial releases of a lien and grants of easements and an Investor reporting change initiative.

Freddie Mac and Fannie Mae have consistently led the industry in establishing standards and benchmarks to ensure that the law firms handling the default servicing legal representation are justly compensated for the work they perform.  To this end, they have been responsible stewards of the industry.  Freddie and Fannie have also been welcoming business partners, always receptive to discussing the pressing issues that face our industry and equally responsive in collaborating with USFN and other industry participants in developing working solutions to ensure that the default servicing industry operates as smoothly and efficiently as possible.

 

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U.S. First Circuit Court of Appeals Allows Integrated Business Record Exception to Hearsay

Posted By USFN, Monday, June 17, 2019

by Robert Wichowski, Esq.
Bendett & McHugh, PC
USFN Member (CT, MA, ME, NH, RI, VT)

On May 30, 2019, the First Circuit United States Court of Appeals handed down its decision affirming the judgment for Plaintiff in an appeal taken from the United States District Court for the State of Maine.  In an opinion written by former United States Supreme Court Justice David Souter, the First Circuit held that the District Court did not err in allowing into evidence a prior mortgage loan servicer’s business records without live witness testimony from the prior servicers where Maine State Courts require live witness testimony or testimony from a qualified witness with personal knowledge of the record keeping practices of the prior servicers for the admission of such records.

In the District Court case, US Bank (“plaintiff”) sued Jones (“defendant”) for breach of contract and breach of the underlying promissory note for her failure to make payments on her mortgage loan.  During plaintiff’s case, it submitted computer printouts which contained an account summary of the loan.  The account summary contained entries from a time before the current servicer serviced the loan.  The District Court admitted the summary as proof of the amount due on the loan with only witness testimony from a representative of the current servicer.

On appeal, defendant claimed that the records relied upon by the District Court should not have been admitted into evidence or relied upon by the court because the records were not supported by the testimony of a custodian or qualified witness with personal knowledge of the record keeping of the prior servicers.  Defendant argued that the witness for the servicer was not a qualified witness because she lacked knowledge about how prior servicers kept their records. Defendant also argued that to allow this exhibit into evidence would be inconsistent with the corresponding state court rule of evidence.    

Maine state courts, both on the trial level and upon appellate review, have been disallowing the entry of business records into evidence where there was no live witness testimony containing personal knowledge of the record keeping practices of prior loan servicers. (see KeyBank National Association v. Estate of Eula W. Quint, 2017 ME 237 (Dec. 21, 2017)). The Court of Appeals rejected both arguments holding that the Federal Rules of Evidence did not preclude the admission of such records and that since the Maine Rules of Evidence were functionally identical to the corresponding federal rules, they were procedural and not substantive and thus, the District Court did not have to defer to the state court’s interpretation of the rules. 

As such, and as the District Court found the witness to be knowledgeable, trained and experienced in analyzing the servicer’s records, the District Court did not abuse its discretion in allowing these records because the evidence presented demonstrated that the exhibit is what it claims to be and accurately reflects the data in the servicer’s database. The court was very clear that decisions of this type were to be made on a case by case basis and should involve a determination of the trustworthiness of the underlying information. 

While this decision is not blanket authority to proceed with prior servicer business records in the federal, and certainly not in the State Court in Maine, it provides a basis for admission of such records in Federal Court actions and brings some rare good news from a case that began in Maine.

 

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New Hampshire Bill Proposes Change in Foreclosure Process from Nonjudicial to Judicial

Posted By USFN, Monday, June 17, 2019

by Joseph A. Camillo, Jr., Esq.                                   

Brock and Scott, PLLC

USFN Member (AL, CT, FL, GA, MA, MD, ME, MI, NC, NH, OH, RI, SC, TN, VA, VT)

On January 2, 2019, the New Hampshire House of Representatives reintroduced “An Act relative to Foreclosure by Civil Action” under House Bill 270.  Like the 2018 introduction (HB1682-FN), it has passed in the House and was referred to the Senate Commerce Committee (where the bill was killed last year). This bill provides that foreclosure of a mortgage would be by a civil action in the superior court in the county in which the mortgaged premises or any part of it is located.  The bill would also repeal the provisions for nonjudicial power of sale mortgages pursuant to RSA 479:25 and reenact it to require commencement of foreclosure by civil action.

Specifically, the bill sets forth the process for a judicial foreclosure wherein all parties having an interest appearing of record at the registry of deeds up through the time of recording the complaint or clerk’s certificate must be joined. An exception would be a party in interest having a superior priority to the foreclosing mortgage, whose interest will not be affected by the proceedings. Parties with a superior interest must be notified of the action by sending a copy of the complaint by certified mail. Parties without a recorded interest may intervene in the action for purposes being added as party in interest any time prior to the entry of judgment.

The action shall be commenced pursuant to superior court rules and the mortgagee shall, within 60 days of commencing the action, record a copy of the complaint or clerk’s certificate in each registry of deeds where the mortgaged property lies. Furthermore, the mortgagee will have to certify and provide evidence that all steps mandated by law to provide notice to the mortgagor have been strictly performed. The complaint shall also contain a certification of proof of ownership of the mortgage note, as well as produce evidence of the mortgage note, mortgage and all assignments and endorsements of the mortgage note and mortgage.

Other requirements include that the complaint contain the street address of the mortgaged property; book and page number of the mortgage; state the existence of any public utility easements recorded after the mortgage but before the commencement of the action; state the amount due and what condition of the mortgage was broken, and by reason of such breach, demand a foreclosure and sale.

Within ten  days of filing the complaint, the mortgagee shall provide a copy of the complaint or clerk’s certificate as submitted to the court to the municipal tax assessor of the municipality in which the property is located, and if the property is manufactured housing as defined in RSA 674:31, to the owner of any land leased by the mortgagor.

A 90 day right of redemption is also being proposed, wherein the property may be redeemed by the mortgagor, by the payment of all demands and the performance of all things secured by the mortgage and the payment of all damages and costs sustained and incurred by reason of the nonperformance of its condition, or by a legal tender thereof, within 90 days after the court’s order of foreclosure.

Most alarming is the clause that acceptance, before the expiration of the right of redemption and after the commencement of foreclosure proceedings, of anything of value to be applied on or to the mortgage indebtedness constitutes a waiver of the foreclosure. Unless an agreement to the contrary in writing is signed by the person from whom the payment is accepted or if the bank returns the payment to the mortgagor within ten days of receipt.  The receipt of income from the mortgaged premises that the mortgagee or the mortgagees assigns while in possession of the premises does not constitute a waiver of the foreclosure proceedings of the mortgage on the premises.

The mortgagee and the mortgagor may enter into an agreement to allow the mortgagor to bring the mortgage payments up to date with the foreclosure process being stayed as long as the mortgagor makes payments according to the agreement.  If the mortgagor does not make payments according to the agreement, the mortgagee may, after notice to the mortgagor, resume the foreclosure process at the point at which it was stayed.


As such, all mortgage foreclosures would take place following a civil action in superior court.  A mortgage foreclosure would be treated as a routine equity case estimated to have a filing fee of approximately $250.00.

The impact to servicers will be such that what was once a streamlined process, taking approximately 90-120 days, would be significantly extended to the same time frame that exists in other judicial states such as Maine, Vermont and Connecticut.  This would also require careful scrutiny of demands to determine how to comply with the historical nonjudicial paragraph 22 language in light of the new judicial process. 

Servicers can also expect a spike in contested matters by virtue of borrowers’ filing answers, affirmative defenses, counterclaims, and engaging in discovery, as well having to prepare witnesses to testify at trial.  Two aspects of the judicial process that were not mentioned are

 

1. the mediation process and

 

2. a nonjudicial notice and publication requirement for the sale, but either could be added to the proposed bill at a later date. 

 

In conclusion, this proposed bill, if passed, would make foreclosing in New Hampshire much more difficult, time consuming and expensive; and there is no doubt that all of the issues that have surfaced in the traditional judicial states will have to be similarly addressed and litigated in New Hampshire.

 

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Adoptive Business Records in Ohio’s Courtrooms

Posted By USFN, Monday, June 17, 2019

by Rick D. DeBlasis, Esq. and Charles E. Rust, Esq.
Lerner, Sampson & Rothfuss
USFN Member (KY, OH)

The “business records exception” of Ohio Evidence Rule 803(6) is an indispensable ally of the lender’s trial lawyer.  The rule against hearsay prohibits the use of records to prove a lender’s case, unless the record is offered by the testimony of the custodian or other qualified witness who has personal knowledge of the record-keeping system in which the record is maintained.  This requirement has made its way to the forefront of foreclosure litigation recently, due to the prevalence of servicing changes during the life a loan.  Now, the majority of Ohio’s appellate courts has addressed the nuances of authenticating adoptive business records, i.e., those created and maintained by a prior servicer.

In Ohio, the idea that the records of a prior servicer may be authenticated by a subsequent servicer originates from a 2006 credit card case in Ohio’s First District Court of Appeals.[1]  The court held that "exhibits can be admitted as business records of an entity, even when that entity was not the maker of those records, provided that the other requirements of [Evid.R.] 803(6) are met and the circumstances indicate that the records are trustworthy."[2]  The majority of Ohio’s Appellate Districts have directly adopted or discussed this general notion, or it has been applied by the respective common pleas courts.[3]  But this begs the question:  what circumstances indicate that the records of a prior servicer are indeed trustworthy?

Recently, some Ohio courts of appeals have held that “trustworthiness of a record is suggested by the profferer's incorporation into its own records and reliance on it.”[4]  Others have held that “[o]ne circumstance that indicates the trustworthiness of such a document proffered as a business record might be the ongoing relationship between the business creating the document and the incorporating business.”[5]  At a fundamental level, such logic is consistent with the notion that “[t]he rationale behind Evid.R. 803(6) is that if information is sufficiently trustworthy that a business is willing to rely on it in making business decisions, the courts should be willing to rely on that information as well.”[6]

It is likely not enough for an affiant to aver simply that the records of a prior servicer are incorporated into the records of the current servicer.[7]  The records of a prior servicer must be incorporated and relied upon in the ordinary course of business to meet the trustworthiness requirements of Evidence Rule 803(6).[8]  Thus, the summary judgment affidavit of a transferee servicer should explicitly indicate both incorporation of the records of the prior servicer into its own and reliance upon those records in the ordinary course of business.

Other averments can augment trustworthiness.  For example, the transferee servicer may have, or may have had, an ongoing relationship with the transferor servicer, such that the new servicer has become familiar with and relied upon, without issue, the old servicer’s record-keeping system for many years.[9]  The new servicer may have acquired the old servicer.[10]  Failure to include such language in the lender’s affidavit could be the difference between the court awarding summary judgment and the court finding a genuine issue of material fact warranting trial.

 

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June e-Update

 


[1] Great Seneca Financial v. Felty, 170 Ohio App.3d 737, 2006-Ohio-6618, 869 N.E.2d 30, ¶ 14 (1st Dist.).

[2] Id.

[3] See Ocwen Loan Servicing, LLC v. Malish, 2d Dist. Montgomery No. 27532, 2018-Ohio-1056, ¶ 23; Sec'y of Veterans Affairs v. Leonhardt, 3rd Dist. Crawford No. 3-14-04, 2015-Ohio-931, ¶¶ 57-59; Carrington Mtge. Servs., LLC v. Shepherd, 5th Dist. Tuscarawas No. 2016 AP 07 0038, 2017-Ohio-868, ¶ 34-36; U.S. Bank N.A. v. Hill, 6th Dist. Ottawa No. OT-17-029, 2018-Ohio-4532; Bank of New York Mellon v. Kohn, 7th Dist. Mahoning No. 17 MA 0164, 2018-Ohio-3728; RBS Citizens, N.A. v. Zigdon, 8th Dist. Cuyahoga No. 93945, 2010-Ohio-3511; Ohio Receivables, LLC v. Dallariva, 10th Dist. Franklin No. 11AP-951, 2012-Ohio-3165, ¶¶ 19-21; Green Tree Servicing, LLC v. Roberts, 12th Dist. Butler No. CA2013-03-039, 2013-Ohio-5362, ¶¶ 30-31.

[4] Ocwen Loan Servicing, LLC v. Malish, supra.

[5] PNC Mtge. v. Krynicki, 7th Dist. Mahoning No. 15 MA 0194, 2017-Ohio-808, ¶ 13; Sec'y of Veterans Affairs v. Leonhardt, supra, ¶ 59.

[6] U.S. Bank, N.A. v. Lawson, 5th Dist. Delaware No. 13CAE030021, 2014-Ohio-463, ¶ 20.

[7] Bank of N.Y. Mellon v. Roulston, 8th Dist. Cuyahoga No. 104908, 2017-Ohio-8400.

[8] See Deutsche Bank Trust Co. v. Jones, 2018-Ohio-587, ¶ 17.

[9] Ocwen Loan Servicing, LLC v. Malish, supra.

[10] Id.

 

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South Carolina Enacts Servicemembers Civil Relief Act

Posted By USFN, Monday, June 17, 2019

by John S. Kay, Esq.
Hutchens Law Firm
USFN Member (NC, SC)

In late April, the Governor of South Carolina signed House Bill 3180 to enact the South Carolina Servicemembers Civil Relief Act (“Act”). The Act took effect on April 26, 2019 and its provisions are applicable to contracts entered into, extended, or amended on or after July 1, 2019. The Act is intended to expand and supplement the protections of the federal Servicemembers Civil Relief Act ("SCRA"). The definition of “military service” will affect South Carolina National Guardsmen who are on active duty for a period of more than thirty days. The new Act also provides that the dependent of a service member engaged in military service has the same rights and protections afforded a service member under the Act and under the federal SCRA.

Specifically, the Act includes protections for South Carolina National Guardsmen under a call to active:

service authorized by the President of the United States or the Secretary of Defense for a period of more than thirty days in response to a national emergency declared by the President of the United States; or

- duty authorized pursuant to Article 15 for a period of more than thirty consecutive days. 


It is important to note that, in general, the federal SCRA applies to National Guard members on Title 32 duty only under limited and unusual circumstances. Those circumstances, however, happen to mirror those outlined above in the South Carolina version of the SCRA. So, the new statute actually does not provide any additional “call to duty” coverage for active duty status National Guard members other than that already provided for under the federal statute.

The Act does provide some other protections to service members, including the right to terminate certain kinds of contracts after receiving “call up” orders to relocate for a period of service for at least 90 days to an area that does not support the services provided under the contract.  Specifically listed in the statute are contracts for: telecommunication services, internet services, television services, gym memberships and satellite radio services. Unlike some provisions of the federal SCRA, the South Carolina version requires the service member to provide written notice of the termination of the contract to the service provider along with a copy of the orders requiring the service member to relocate.

The South Carolina SCRA allows the service member, a dependent, or the South Carolina Attorney General to bring a civil action against a person who intentionally violates a provision of the act and authorizes penalties that include injunctions, restitution and a civil penalty not to exceed $5,000.   Fifty percent of the civil penalties imposed would be remitted to the South Carolina general fund, and the balance may be retained by the Office of the South Carolina Attorney General to support enforcement or public education efforts related to the purpose of the new statute.

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North Carolina: Lost Notes Can Be Used in Power of Sale Foreclosure When Present Holder Lost Note

Posted By USFN, Monday, May 20, 2019

by Jeffrey A. Bunda, Esq.
Hutchens Law Firm
USFN Member (NC, SC)

In an October 2, 2018 published opinion from the North Carolina Court of Appeals, the Court confirmed that a lender who lost the original promissory note while it was in physical possession of the original note may proceed with a power of sale foreclosure proceeding before the Clerk of Court.

In In re Frucella, No. COA 18-212 (October2, 2018), the homeowners appealed the Clerk’s order authorizing a foreclosure sale for a hearing de novo before a Superior Court judge. At the Superior Court hearing, lender’s counsel presented a pair of “lost note” affidavit executed by the same affiant.

The first affidavit described the circumstances by which the lender seeking to foreclose came into possession of the original Note, and that after it obtained possession, the Note was lost. The second affidavit tracks the elements required to establish the right to enforce a lost promissory note under North Carolina’s U.C.C.§ 3-309 e.g., that the party seeking to enforce the Note had that right when it was lost; the loss was not the result of a transfer/assignment; and that a due and diligent search had been made to locate the Note and it could not be found. The Superior Court entered its own order authorizing a foreclosure sale, from which the homeowners appealed.

In affirming the trial court’s order, the Court of Appeals expanded the scope of “who” could avail themselves of North Carolina’s quasi-judicial foreclosure process. Although the Court had signaled its intent to head in this direction in an earlier unpublished decision in In re Iannucci, No. COA 16-738 (February7, 2017), the holding of the Frucella Court is contained in a published decision and, with that, carries the gravitas of precedent. Before Frucella, courts strictly held that only the “holder” e.g., party in possession of the original appropriately endorsed promissory note could use the streamlined power of sale foreclosure process.

However, under North Carolina’s Uniform Commercial Code, a party who was not the holder could still enforce the Note if it was either a non-holder in possession with the rights of a holder (example: missing or defective endorsement in the chain) or a party who had lost the Note while it was in possession of the Note. Those two classes of lender were previously required to file a judicial foreclosure proceeding, which entails formal litigation and all its trappings like discovery, mediation and trial, rather than being able to proceed with the more efficient power of sale foreclosure process.

In attempting to defeat the lender’s efforts to foreclose via the streamlined power of sale process, the homeowners presented evidence that parties prior to the petitioning lender had held the Note. Although, as the trial court noted, the homeowners “presented no credible evidence tending to show that any other entity is the holder of the debt or there is an actual controversy “regarding the foreclosing lender’s current status. In essence, the Court rejected the long-held urban legend that there is a risk of “multiple judgments” or “double jeopardy” of duplicative foreclosure actions when homeowners simply cast doubt that the party asking for payments isn’t the one who is entitled to collect them.

The expansion of the class of persons permitted to go before the Clerk in power of sale foreclosure proceedings may open the door to the third and final class of person – the non-holder in possession with the rights of the holder – to give the quasi-judicial foreclosure route a whirl. This ruling does not change the fact that North Carolina’s Uniform Commercial Code does not allow a servicer to use a lost note affidavit (LNA) in a power of sale foreclosure proceeding if the prior servicer lost the Note. In those situations, the loan must still be foreclosed judicially, unlike the vast majority of jurisdictions which allow a direct successor to rely on LNAs.

The Frucella expansion may change because as of press time, the homeowners have sought discretionary review to the North Carolina Supreme Court.


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