January 6, 2022
Today, a St. Johns’ County, Florida Circuit Court Judge denied a Motion to Dismiss the homeowners’ Second Amended Complaint against Ocwen Loan Servicing and Homeward Financial which seeks to enforce what the homeowner Plaintiffs assert is a settlement agreement reached as the result of a confirmed Chapter 13 Plan by which Ocwen, as the secured creditor, accepted less than the amount claimed by Ocwen. Jeff Barnes, Esq. represents the homeowner Plaintiffs and argued the Motion via Zoom today.
The matter arose out of a foreclosure. The homeowners assert that Ocwen and Homerward, through their actions in accepting the Plan and Plan payments and inactions as well in failing to object to the Plan, failing to appeal the Plan Confirmation Order, and failing to make the appropriate filings in the Bankruptcy Court to preserve alleged rights, resulted in a compromise and settlement of Ocwen’s claim. Ocwen admitted that it “assumed” that the Proof of Claim “covered” Ocwen without Ocwen having to undertake any further action. The Judge ruled that the matters in the Motion to Dismiss were appropriately matters of defense.
Ocwen and Homeward have taken the position that the Plan payments constituted “adequate protection” payments. The homeowners have asserted that once the Plan was confirmed, the payments made under the Plan were payments to creditors on their claims, and not “adequate protection”. Ocwen and Homeward have never denied that they did not object to the Plan, did not appeal the Plan Confirmation Order, and did not file any other papers in the Bankruptcy to place anyone on notice that they intended to seek additional monies from the homeowners over and above.
The Judge stated that the matter now proceeds into discovery.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com