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Mortgage Defense and Offense: Bankruptcy Judge Whacks “Assembly Line” Attorneys For $150K In Sanctions For Misrepresenting Ownership Of Promissory Note In Mortgage Foreclosure

January 19, 2009

The Wall Street Journal Law Blog reports:

  • On Friday, two law firms — Buchalter Nemer and Ablitt & Charlton, along with name partner Robert Charlton — got whacked with a combined $150,000 in sanctions. In a decision regarding an order to show cause in the case, called Nosek v. Ameriquest, bankruptcy judge Joel Rosenthal found that, throughout earlier proceedings, lawyers at both firms, in representing Ameriquest, had continually represented that Ameriquest was the holder of Nosek’s mortgage, when in fact it had been assigned, at least twice, to other lenders.
  • Judge Rosenthal held: “At a time when mortgages and notes are bought and sold at a pace so swiftly that the assignor and assignee cannot keep up with the paperwork, had the attorneys at the Ablitt firm checked the firm’s file, they would have seen that Norwest was perhaps the real party interest. . . . The firm cannot shield itself from institutional knowledge.” Rosenthal fined the firm $25,000, and attorney Robert Charlton another $25,000. (The Buchalter firm was fined the remainder, or $100,000.)

According to the court order, the lender/servicer and trustee involved, Ameriquest and Wells Fargo, were also clipped for $250,000 each in sanctions. Judge Rosenthal, however, declined to sanction the two associates who assisted Charlton in the case.

For more, see Judge Has Stern Words (But No Fine) for Associates at Sanctioned Firm.

See also, The Wall Street Journal: Wells Fargo Is Sanctioned For Role in Mortgage Woes:

  • Joel B. Rosenthal, a Massachusetts federal bankruptcy judge, wrote in a decision that Wells Fargo “turned all responsibilities over” to the servicer but “turn[ed] a blind eye” to the servicer’s mistakes. Had the company “shown even a modicum of oversight or review” of the servicer’s behavior, “it should have been able to correct the misrepresentations” made to the court. He added: “This court will not allow Wells Fargo or any other [mortgage holder] to shirk responsibility by pointing fingers at their servicers.” A Wells Fargo spokeswoman said in a statement: “We believe the judge failed to appreciate Wells Fargo’s limited role as trustee in the servicing of the home loan. As a result, Wells Fargo plans to appeal the order.”

For the relevant court documents in this case, see:

For other posts that reference the failure of some mortgage lenders and their attorneys to file the required loan documents when starting foreclosures, Go Here, Go Here, Go Here and Go Here.

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Foreclosure Defense: Countrywide Faces Civil RICO, RESPA Charges In Washington Class Action Suit; Accused Of Using Do-Nothing Subsidiary To Inflate, Pocket Appraisal Fees

January 19, 2009

In Seattle, Washington, the law firm Hagens Berman Sobol Shapiro LLP announced last week:

  • A group of Washington homeowners this week filed a lawsuit against Countrywide, a wholly owned subsidiary of Bank of America (NYSE: BAC) and the nation’s largest mortgage company, claiming the mortgage giant illegally rigged the appraisal process in a scheme to boost profits at the expense of homeowners and independent appraisers.
  • Filed under the Racketeering Influenced and Corrupt Practices Act (RICO), the suit claims that Countrywide forces homeowners to use its wholly owned subsidiary LandSafe, for appraisals. The company then turns around and subcontracts the work to independent appraisers while charging homeowners as much as 200 percent of the actual cost of the appraisal.

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  • The lawsuit, filed in U.S. District Court in Seattle, seeks to represent all homeowners who purchased or refinanced their home through Countrywide and LandSafe, and asks the court to award plaintiffs damages. [...] The lawsuit cites violations of federal law under RICO and RESPA. Other counts include unjust enrichment, breach of fiduciary duty and violation of California unfair competition law. You can learn more about this case by visiting www.hbsslaw.com/CFChomeowners.

For the press release, see Hagens Berman Files Class Action Against Lending Giant Countrywide.

For the lawsuit, see Clark v. Countrywide Home Loans, Inc., et al.

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Foreclosure Offense: HUD Launches Program In Six Cities To Help Homeowners Not Yet In Foreclosure

January 19, 2009

In Miami, Florida, The Miami Herald reports:

  • [A]nother effort to keep borrowers from losing their homes to foreclosure was launched Wednesday by the Department of Housing and Urban Development. Called ”Keep Your Home, Know Your Loan,” the campaign includes public service announcements and print materials that will be distributed in six major metropolitan areas where home foreclosures rates are soaring, including Chicago, Los Angeles, Detroit, New York, Phoenix, and, naturally, Miami.(1)
  • This is an opportunity for us to reach out to people who may not be in foreclosure yet, but could be facing one this year, due to a rate change, the economic downturn, job loss or having their hours cut,” said Armando Fana, director of HUD’s field office in South Florida.

For more, see Miami homes get HUD lifeline (Federal housing officials chose Miami and five other cities to launch a foreclosure prevention campaign, complete with a hot line, and warned home owners to watch out for ‘rescue’ scams).

Go here for more information on the HUD program - Keep Your Home. Know your Loan.

 

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Mortgage Meltdown: Freddie Continues Bringing Foreclosure Actions; Says Its Announced Moratorium Applies Only To Actual Sales & Evictions, Not To Court Filings

January 15, 2009

Bloomberg News reports:

Freddie Mac continues to foreclose on homeowners and make plans to evict them, drawing fire from legal aid groups who say the moves violate the spirit of a moratorium the company agreed to in November. While Freddie has suspended sales of foreclosed properties and isn’t locking people out of their homes, the mortgage- finance company continues to initiate court cases against homeowners and pursue existing cases, company spokesman Brad German said.

 

  •  The actual sale, the actual eviction has stopped, but the process continues,” German, the Freddie spokesman, said yesterday. “The moratorium does not affect the normal process of legal filings. But no one is being evicted, the homes are not being sold,” he said.
  • By contrast, Fannie [Mae] has worked to halt court proceedings and notify borrowers and tenants that they may be eligible to stay in their homes if they agree to sign a new monthly lease at market rates, according to [legal aid attorneys]. When cases have fallen through the cracks and court action continued, Fannie is “literally sending people out to knock on doors to make them aware of the policy and, when they’re not home, we leave flyers with information about their options,” said Fannie spokesman Brian Faith.

For more, see Freddie Foreclosures, Eviction Plans Continue During Moratorium.

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Foreclosure Fraud: Attorneys For Major Lender In New Hampshire Lawsuit Admit Company’s Loan Modification Assurances Are “Mere Commercial BS”

January 15, 2009

 

In Merrimack County, New Hampshire, MSNBC.com reports:

In marketing, advertising and testimony before Congress, Countrywide Home Loans has said repeatedly that it is working hard to modify the mortgages of financially strapped borrowers caught up in the subprime meltdown.

  • But in a New Hampshire court, attorneys for the lending giant are singing a different tune, describing such assurances as “mere commercial puffery.”
  • Saying the modification offers are “only Countrywide’s vague advertisements,” attorneys for the lender are asking the court to throw out a lawsuit alleging breach of good faith, fraud, negligence and misrepresentation, which was filed on behalf of a family that was refused a loan modification by the California-based company.
  • It’s breathtaking,” attorney Mary Frances Stewart of Concord, N.H., said of Countrywide’s response to the lawsuit she and co-counsel Krista Atwater filed in Merrimack County Superior Court. In its response, “Countrywide is saying, ‘We don’t have any obligation or even necessarily the intention of actually modifying these loans,’ and yet they’re representing that they do.”

For more, see In court, Countrywide calls its ads ‘puffery’ (Defending lawsuit, mortgage company mocks loan modification assurances) (go here for entire story on one web page).

 

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Mortgage Meltdown: FDIC Unloads $558M In Bad Loans For Less Than 50 Cents On Dollar To Firm Led By Ex-Countrywide Head; Price To Be Paid Out Over Time

January 9, 2009

Bloomberg News reports:

  • Stanford Kurland, the former Countrywide Financial Corp. president, says his new company’s purchase of $558 million in home loans issued by a failed Nevada bank will be a springboard for further growth. Private National Mortgage Acceptance Company LLC ["PennyMac"], based in Calabasas, California, is paying less than 50 cents on the dollar for loans that the Federal Deposit Insurance Corp. acquired last July after First National Bank of Nevada collapsed.

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  • Kurland declined to discuss financial details of the transaction, which FDIC spokesman David Barr said doesn’t involve any sharing of possible losses. The FDIC will be paid 80 percent of loan cash flow until an undisclosed level of payments are received, then 60 percent thereafter, Barr said.

For more, see PennyMac, Led by Ex-Countrywide Head, Sees Promise in Bad Loans.

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Foreclosure Offense: Major Lender, Top Senate Democrats Reach Understanding On Mortgage Cramdown Provisions Allowing Bankruptcy Judges To Modify Troubled Home Loans

January 9, 2009

The Wall Street Journal reports:

  • A Senate bill aimed at giving strapped homeowners more leverage in renegotiating their mortgages cleared a hurdle Thursday when Citigroup Inc. dropped its opposition. The legislation, which is being advanced by top Senate Democrats, would let judges set new repayment terms for mortgage holders in bankruptcy court.

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  • The proposal from Sen. Dick Durbin, an Illinois Democrat, to allow so-called mortgage “cramdowns,” would apply only to homeowners who have filed for Chapter 13 bankruptcy protection.

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  • The Democrats’ proposal allows judges to approve plans that make major reductions in home-loan debts, after homeowners certify that they have attempted to contact their lenders about a mortgage reduction before bankruptcy proceedings begin. [...] The cramdown bill would apply to all mortgage loans, including subprime loans, written any time prior to the bill’s date of enactment.
  • In a concession to lenders, a mortgage debt could be forgiven entirely only if the lender was found committed a major violation of the Truth in Lending Act. Under the bill’s original language, the entire mortgage debt could be wiped away based on a violation of any number of state and federal consumer lending laws.

For more, see Plan to Cut Foreclosure Rate Clears Key Hurdle.

See also:

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Mortgage Meltdown: Fannie Begins Testing “Pre-Approved Short Sale Program” For Underwater Homes In Phoenix, Orlando

January 9, 2009

The Wall Street Journal reports:

  • Fannie Mae is testing a new program to stave off foreclosures by preapproving “short sales” of homes, in which mortgage companies allow homeowners to sell houses for less than the value of existing loans, forgiving the difference.

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  • Two pilot projects, in Phoenix and Orlando, Fla., began at the end of December and will last for three months. The test run is limited to properties secured by a Fannie Mae mortgage and serviced by Countrywide Financial Corp., a subsidiary of Bank of America Corp. Only homes already listed at less than the unpaid balance on the mortgage are eligible for the pilot. So far, about 400 homes have qualified for preapproval between the two markets.

For more, see Fannie Mae Tests ‘Short Sales’ as Alternative to Foreclosures (subscription may be required; for those without a subscription, try here, then click link for the story).

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Foreclosure Offense: FTC, 3 Loan Orignators Settle Charges Of TILA & Reg Z Violations; Deceptively Advertising “Teaser” Rates

January 9, 2009

The Federal Trade Commission announced:

  • Three mortgage loan advertisers that allegedly deceptively touted low monthly payments and low rates without fully disclosing loan terms have agreed to settle Federal Trade Commission charges that their ads violated federal law.(1)
  • According to the FTC, the ads represented that people could receive mortgage loans at the terms prominently stated in the ads. However, in violation of the FTC Act, the ads allegedly failed to disclose, or failed to disclose adequately, that the advertised low monthly payment amounts and low rates apply only for a limited time, after which they will increase, and that the advertised payment amounts and rates did not include the interest owed each month, with the interest added to the total loan balance.

For more, see Three Home Loan Advertisers Settle FTC Charges; Failed to Disclose Key Loan Terms in Ads.

(1) For links to the relevant court documents in the three cases (ie. consent orders, original FTC complaints, etc.), see:

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Foreclosure Offense: IRS Taxpayer Watchdog Urges Congress To Ease Laws Governing Mortgage, Consumer Debt Defaults & Cancellations

January 9, 2009

The New York Times reports:

  • Congress should ease certain tax laws governing defaults on mortgages, credit cards and other consumer debt to help Americans who are struggling in the economic downturn, the watchdog agency of the Internal Revenue Service said Wednesday. In its annual written report, the agency, the National Taxpayer Advocate, said that without the changes hundreds of thousands of Americans could mistakenly pay taxes this year on their canceled debts, adding to their financial malaise.
  • The I.R.S. generally treats canceled debts as subject to federal income tax unless the taxpayer is insolvent or in bankruptcy proceedings. But Nina E. Olson, who leads the watchdog agency, wrote that most taxpayers eligible to exclude canceled debts from their overall taxable income were unaware that they must file an obscure, complex form(1) with the I.R.S.

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  • Congress has already provided some debt relief to homeowners through the Mortgage Forgiveness Debt Relief Act of 2007, which exempts from taxes any debts reduced or canceled during foreclosure or mortgage restructuring. But the exemption applies only if proceeds are used to acquire or improve a principal residence — something home buyers do not always do.(2)

For more, see Gentler Tax Laws Urged on Debt Default.

Go here for more on Dodging The Income Tax On Real Estate Foreclosure & Short Sales.

(1) See IRS Form 982, “Reduction of Tax Attributes Due to Discharge of Indebtedness.”

(2) Ms. Olson said that it appears that most subprime borrowers use a portion of their loans for other purposes (e.g., to pay off car loans, credit card balances, student loans or medical bills), the story reports.

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