Strafford - CLE (Mortgage Servicing)

Residential Mortgage Servicing and

Foreclosure Challenges in an Evolving

Regulatory and Litigation Environment Navigating Foreclosure Re-Filings, Hearsay Objections, Post Servicing

Transfers, Loss Mitigation, FDCPA and TCPA Developments, and More

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TUESDAY, DECEMBER 16, 2014

Presenting a live 90-minute webinar with interactive Q&A

Christy A. Ames, Member, Stites & Harbison, Louisville, Ky.

Brian Blake, Counsel, MERSCORP Holdings, Reston, Va.

Hunter R. Eley, Managing Partner, Doll Amir & Eley, Los Angeles

Reid S. Manley, Partner, Burr & Forman, Birmingham, Ala.

Andrew K. Stutzman, Partner, Stradley Ronon Stevens & Young, Philadelphia

Ralph T. Wutscher, Principal, McGinnis Wutscher Beiramee, Chicago

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Reid S. Manley

Partner Birmingham, Alabama

Hot Issues in Foreclosure Litigation:

The Statute of Limitations, Res Judicata,

and Prior Servicer Business Records

Statute of Limitations:

Statute of Limitations, Fla. Stat. 95.11:

Actions other than for recovery of real property shall be commenced as follows:

...

(2) Within five years.

(c) An action to foreclose a mortgage.

Fla. Stat. 95.031 states that the statute of limitations runs from the date the cause of action accrues.

Fla. Stat. 95.031 provides that (1) A cause of action accrues when the last element constituting the cause of action occurs.

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Statute of Repose:

Statute of Repose, Fla. Stat. 95.281

(1) The lien of a mortgage or other instrument encumbering real property, herein called mortgage, except those specified in subsection (5), shall terminate after the expiration of the following periods of time:

(a) If the final maturity of an obligation secured by a mortgage is ascertainable from the record of it, 5 years after the date of maturity.

(b) If the final maturity of an obligation secured by a mortgage is not ascertainable from the record of it, 20 years after the date of the mortgage, unless prior to such time the holder of the mortgage:

1. Rerecords the mortgage and includes a copy of the obligation secured by the mortgage so that the final maturity is ascertainable; or

2. Records a copy of the obligation secured by the mortgage from which copy the final maturity is ascertainable and by affidavit identifies the mortgage by its official recording data and certifies that the obligation is the obligation described in the mortgage;

in which case the lien shall terminate 5 years after the date of maturity.

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Landmark: Singleton v. Greymar

Cite: 882 So.2d 1004 (Fla. 2004)

Significance: Landmark Florida Supreme Court decision on accrual of causes of action for foreclosure.

Facts: foreclosure action is brought, and dismissed with prejudice as sanction for failure to appear at a case management conference. Second successive foreclosure action is commenced alleging defaults which occurred subsequent to the prior dismissed foreclosure action. Trial Court entered foreclosure judgment over argument of borrower that res judicata prevented the second foreclosure.

Holding: We conclude that the doctrine of res judicata does not necessarily bar successive foreclosure suits, regardless of whether or not the mortgagee sought to accelerate payments on the note in the first suit. In this case the subsequent and separate alleged default created a new and independent right in the mortgagee to accelerate payment on the note in a subsequent foreclosure action.

Critical distinction: While it is true that a foreclosure action and an acceleration of the balance due based upon the same default may bar a subsequent action on that default, an acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue.

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Singletons Progeny: U.S. Bank v. Bartram

Cite: 140 So. 3d 1007 (Fla. 5th DCA 2014)

Significance: Applied the Florida Supreme Courts Singleton opinion in context of the statute of limitations.

Facts: foreclosure action is brought, and dismissed for failure to appear at a case management conference (a disturbingly common fact pattern). Borrower seeks to quiet title based on the statute of limitations having expired subsequent to the dismissal of the foreclosure lawsuit.

Holding: Based on Singleton, a default occurring after a failed foreclosure attempt creates a new cause of action for statute of limitations purposes, even where acceleration had been triggered and the first case was dismissed on its merits. Therefore, we conclude that a foreclosure action for default in payments occurring after the order of dismissal in the first foreclosure action is not barred by the statute of limitations found in section 95.11(2)(c), Florida Statutes, provided the subsequent foreclosure action on the subsequent defaults is brought within the limitations period.

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Singletons Progeny:

Evergrene Partners v. CitiBank

Cite: 143 So. 3d 954 (Fla. 4th DCA 2014). Significance: Applies Singleton and Bartram opinions in the context of

dismissal of quiet title actions. Facts: Bank voluntarily dismissed foreclosure action. Borrower filed an

action to cancel the mortgage alleging the expiration of the statute of limitations for mortgage foreclosure rendered the mortgage unenforceable and therefore a cloud on title.

Holding: While a foreclosure action with an acceleration of the debt may bar a subsequent foreclosure action based on the same event of default, it does not bar subsequent actions and acceleration based upon different events of default. Therefore, the statute of limitations has not run on all of the payments due pursuant to the note, and the mortgage is still enforceable based upon subsequent acts of default. A voluntary dismissal is not an adjudication on the merits and therefore will not support a claim of res judicata. Therefore, the claims of acceleration and subsequent acts of default have never been adjudicated on their merits in this case, and any acts of default still within the statute of limitations may be raised in a subsequent suit. The trial court did not err in dismissing Evergrene's complaint.

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Singletons Progeny:

2010-3 SFR Venture v. Garcia

Cite: --- So. 3d. ---, 2014 WL 4723515 (Fla. 4th DCA Sept. 24, 2014)

Significance: Clarifies that the holding in Evergrene Partners applies regardless of whether prior dismissal was with or without prejudice.

Facts: Banks foreclosure action was dismissed with prejudice because the bank delayed the persecution of its foreclosure action. HOA secured title to the property through its own foreclosure action. In second foreclosure action by the bank, HOA moved for summary judgment on res judicata grounds and counterclaimed to quiet title. Trial court entered judgment quieting title to the HOA.

Holding: Before us, the bank correctly argues thatregardless of the adjudication on the merits in the first actionres judicata does not preclude a subsequent action based on a subsequent default. Therefore, as the bank correctly asserts, the trial court erroneously quieted title in that a valid and enforceable mortgage does not constitute a cloud on title. . . . Because the bank's mortgage may be enforced through an action alleging a subsequent default, it is a valid lien and does not constitute a cloud on title to support a quiet title claim.

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Unresolved Issues

What subsequent default date should you allege when you re-

file?

Can you sue for a default which occurred during the

pendency of the prior foreclosure and after acceleration?

Argument would be that you cannot, because the

monthly obligation did not come due because the lender

had elected to accelerate, so while it is an amount due

and owing, there was no breach of the obligation to

make monthly payments during the period of

acceleration which occurred during the pendency of the

dismissed foreclosure prior to dismissal of the action.

Or, do you need to sue for a payment missed subsequent to

the dismissal of the first foreclosure action?

This is the safest: we know this is okay because this is

the facts of Singleton and Bartram.

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Can you recover the time-barred payments in a subsequent foreclosure action

based on a non-time-barred cause of action?

Substance v. Procedure. Even where the statute of limitations has expired,

the borrower still owes the lender the money as a matter of substantive law

because the statute of limitations has no substantive effect on the parties

underlying contract rights; it merely bars suit on causes of action which are

too old. See Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 603 (Fla.

2d DCA 2005) (discussing substance vs. procedure distinction as it relates to

statute of limitations for foreclosure and statute of repose).

Therefore, the argument would be that even if an independent suit on time-

barred payments is precluded, they could still be recovered as an item of

damages in a suit brought on a non-time-barred right to accelerate.

Is it even worth thinking about if the borrower is not collectable for a deficiency?

Might be unavoidable: You probably need a new notice of default. What will you

provide as the cure amount? Do you ask for the entire arrearage including

payments outside the limitations period, the borrower may say you have overstated

the cure amount and therefore not complied with the mortgage.

Or, do you tell the borrower all the time-barred payments are forgiven and provide

a cure amount which includes only payments due within the last five years? This is

probably the safest if the borrower is not collectable anyway.

Unresolved Issues Part II

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The Business Records Exception

Exception to Hearsay Rule for Records of Regularly Conducted

Business Activity, Fla. Stat. 90.803(6)

(a) A memorandum, report, record, or data compilation, in any form, of

acts, events, conditions, opinion, or diagnosis, made at or near the

time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business

activity and if it was the regular practice of that business activity to

make such memorandum, report, record, or data compilation, all as

shown by the testimony of the custodian or other qualified witness,

or as shown by a certification or declaration that complies with

paragraph (c) and s. 90.902(11), unless the sources of information

or other circumstances show lack of trustworthiness. The term

business as used in this paragraph includes a business, institution,

association, profession, occupation, and calling of every kind,

whether or not conducted for profit.

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Landmark: WAMCO XXVIII, LTD. V. Integrated

Electronic Environments, Inc. Cite: 903 So.2d 903 (Fla. 2d DCA 2005)

Significance: First reported decision on the admission of prior servicer business records in a foreclosure action.

Facts: At foreclosure trial, plaintiff presented business records to substantiate the amount due and owing. Witness testified that the plaintiff had not serviced the loan since its inception. Therefore, payment history contained information received by the Plaintiff from the prior servicer, Bank of America, including the balance due and owing when plaintiff took over servicing. Plaintiffs testimony indicated that plaintiff checked this information for accuracy when it incorporated the information into Plaintiffs records and relied on it in the ordinary course of business.

Holding: Section 90.803(6) provides that records may be excluded from evidence if the sources of information or other circumstances show lack of trustworthiness. Yet here, in admitting exhibit 10, the trial court stated that the payment history was admitted as a record of WAMCO's but that the Guarantors had the right to challenge the beginning number. The Guarantors did not demonstrate, and nothing in the record establishes, that the loan information WAMCO received from Bank of America was suspect or untrustworthy or that the balances that WAMCO claimed as due were incorrect.

Critical Distinction: Witness in WAMCO did not seek to authenticate a Bank of America business record, but rather a WAMCO record that included information received from Bank of America, and was able to testify that such information was independently checked for accuracy.

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Distinguishing WAMCO: Hunter v.

Aurora Loan Services Cite: 137 So. 3d 570 (Fla. 1st DCA 2014)

Significance: Disapproves of common practice of having current servicer authenticate copies of documents contained in the servicers loan file which were created by the prior loan servicer.

Facts: at foreclosure trial, plaintiff presented business records to substantiate standing and amounts due and owing. Witness employed by current loan servicer sought to authenticate documents which originally came from prior servicers and admitted to lacking personal knowledge of important facts about how the documents.

Holding: Here, Mr. Martin's testimony failed to establish the necessary foundation for admitting the Account Balance Report and the consolidated notes log into evidence under the business records exception. Mr. Martin was neither a current nor former employee of MortgageIT, and otherwise lacked particular knowledge of MortgageIT's record-keeping procedures. Absent such personal knowledge, he was unable to substantiate when the records were made, whether the information they contain derived from a person with knowledge, whether MortgageIT regularly made such records, or, indeed, whether the records belonged to MortgageIT in the first place. His testimony about standard mortgage industry practice only arguably established that such records are generated and kept in the ordinary course of mortgage loan servicing.

Critical Distinction: Witness in Hunter sought to authenticate the documents as business records of prior servicer, not a business record of his employer which contained information received from the prior servicer.

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Burdshaw v. Bank of New York Mellon

Cite: --- So. 3d. ---, 2014 WL 5099352 (Fla. 1st DCA Oct. 13, 2014)

Significance: Extends the holding in Hunter and removes any doubt that standard industry

practice type testimony will not hold up on appeal to authenticate a prior servicer business record.

Facts: At foreclosure trial, plaintiff presented business records to substantiate amounts due and

owing. Witness employed by current loan servicer sought to authenticate documents which

originally came from prior servicers and admitted to lacking personal knowledge of important facts

about how the documents were created but provided some more specific testimony concerning the

computer system allegedly used by both the prior servicer and current servicer.

Holding: Johnson's only knowledge about the amount due and owing came from her review of

the computer printouts and she had no information about how and when those records had been

prepared or where the data came from. Her testimony that everyone was using the Fidelity

system and they would input any transactions, any adjustments is comparable to the witness'

testimony in Hunter about general mortgage industry practices. Ms. Johnson's assumption that the

original loan amounts would have been input by someone handling the origination of the loan

was merely supposition, based on her general knowledge of ordinary mortgage industry practices,

not any specific knowledge about this debt or the transaction of the information between the

original lender and subsequent servicers, including Suntrust. She was thus unable to show any of

the requirements for establishing a proper foundation for the amounts or the documents she relied

on.

Critical Distinction: Witness in Burdshaw did not provide enough specific testimony to cross the

threshold from the standard industry practice testimony to demonstrating actual knowledge of

prior servicer business practices as would be necessary to authenticate a prior servicers business

records as such.

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Holt v. Calchas, LLC

Cite: --- So. 3d --- 2014 WL 5614374 (Fla. 4th DCA Nov. 5, 2014)

Significance: First case to examine the issue in the context of a notice of default and acceleration, making a number of novel holdings on this issue.

Facts: during foreclosure trial, trial judge admitted assignment of mortgage, default letter, and payment history over hearsay objection. Witness testified that such records were business records of the prior servicer but testified he had never worked for prior servicer and was unfamiliar with their policies and procedures.

Holdings:

1. A notice of default is non-hearsay because it is a verbal act, since the parties contract attaches independent legal significance to the utterance of the notice. Therefore, the notice can come into evidence for purposes other than the truth of the matter asserted, rendering it non-hearsay.

2. However, when the notice of default comes in for the truth of the matter asserted, i.e. as independent evidence the notice was sent in the manner the notice purports (i.e. the mailing address and date) it is being offered for the truth and is hearsay.

3. An assignment of mortgage is also a verbal act, and therefore non-hearsay. See Holt, FN 2.

4. Where insufficient evidence is offered to prove performance of conditions precedent to acceleration, the trial judge may still enter a judgment of foreclosure for the amounts presently due and owing, without providing for acceleration of the remaining balance of the debt.

5. Extends holding in Hunter that general industry practice testimony is not sufficient.

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Possible Solutions for the Prior Servicer

Business Records Conundrum

WAMCO: whenever possible, testimony that a record is the business record of the current servicer, even though it contains information from the prior servicer, should be sufficient to authenticate the document. However, the witness must also be able to testify from personal knowledge how the current servicer keeps and makes the record, what content in the record comes from information supplied by the prior servicer, and what steps the current servicer takes to verify the accuracy of this information and to rely on it in the ordinary course of business in order to satisfy the four elements of the business records exception. This generally works best with payment histories, since many judges are now drawing very fine distinctions which essentially confine WAMCO to its facts.

Chose your witness(es) carefully: your client likely has employees on staff right now that previously worked for many other loan servicers. By selecting the correct witness(es), you may be able to locate someone within your client who can testify from personal knowledge about the prior servicers business practices who can authenticate the documents you need. Be sensitive to the time your document appears to have been created, and what department appears to have created it, and the time/department your potential witnesses worked for the prior servicer to ensure the best results.

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Possible Solutions for the Prior Servicer

Business Records Conundrum

Certification by the prior servicer under Fla. Stat. 90.902(11): This requires cooperation of the prior servicer. Fla. Stat. 90.902(11) allows a paper certification by the prior servicer to substitute for live witness testimony authenticating the document as a business record. It is designed to avoid the hassle and expense of the next option:

Subpoenaing the prior servicer for trial: This is time consuming and expensive, can cause friction between industry peers, and there is no guarantee the witness will show. Even then, you need to be sure the person who appears has personal knowledge about the records in question, which further increases the costs as depositions may be necessary. The one silver lining is that many banks and loan servicers have personnel on site during the foreclosure trial cattle calls common throughout Florida, and with some cooperation and coordination, some of these difficulties can be alleviated if an experienced witness for the prior servicer will already be on site to appear in the servicers own foreclosure trial(s) set on the same trial docket.

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Questions

Feel free to direct questions to Reid Manley

via email: [email protected] or to reach out

to a Burr attorney in an office near you:

www.burr.com.

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mailto:[email protected]://www.burr.com/

Tweeting about this conference?

Presented by: Christy A. Ames Member Stites & Harbison, PLLC

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Loss Mitigation Litigation Trends and Loss Mitigation Procedures

Under Regulation X

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Attorneys Soliciting Clients for Loan Modification Claims

Every situation is different so we must look at your current situation to determine the best route for you, but if you have been through the Loan Modification process and had no results or just no answers at all then litigation might be the solution for you.

Litigation vs. Modification, MORTGAGE LITIGATOR, http://mortgagelitigator.com/faqs-about-litigation/litigation-vs-modification (last visited September 19, 2014).

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Emergency Economic Stabilization

Act of 2008

Authorized the Secretary of the Treasury to implement a plan to assist homeowners and encourage servicers to minimize foreclosures.

Developed the Home Affordable Modification Program (HAMP).

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Early Loan Modification Litigation

Claims routinely dismissed at early stages

No private right of action under HAMP. Miller v. Chase Home Fin., LLC, 677 F.3d 1113, 1116

(11th Cir. 2012).

No claims as third-party beneficiaries to SPAs.

Morales v. Chase Home Fin. LLC, 2011 U.S. Dist. LEXIS 49698, at*23-24, 2011 WL 1670045, at *9 (N.D. Cal. Apr. 11, 2011).

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Early HAMP Litigation - No Breach of Contract Under Trial Period Plan

TPP but one step on the road towards modification. Pandit v. Saxon Mortg. Servs., 2012 U.S. Dist. LEXIS 133292, at *12, 2012 WL 4174888, at *5 (E.D.N.Y. Sept. 17, 2012).

Even if satisfied TPP conditions, borrower not guaranteed loan modification.

Stolba v. Wells Fargo, 2011 U.S. Dist. LEXIS 87355, at *8-9, 2011 WL 3444078, at *3 (D.N.J. Aug. 8, 2011).

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Shift in Loan Mod Litigation- The Wigod Decision

Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012)

Appeals court reversed dismissal of state law claims for breach of contract, promissory estoppel, fraudulent misrepresentation, and violation of Illinois UDAP statute regarding TPP agreement

Heavy influence on district court decisions and state court decisions

Olson v. Merrill Lynch Credit Corp., 576 Fed. Appx 506, 511-12 (6th Cir. 2014) (A plaintiff can only bring a HAMP-related claim if state law provides.)

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Wigod Opened Door for Onslaught of State Law Claims

-Breach of contract -Promissory estoppel -Duty of good faith and fair dealing -Negligence -Breach of fiduciary duty -Negligent misrepresentation -Intentional infliction of emotional

distress

-Fraud -UDAP

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Breach of Contract Is a TPP a contract?

Yes Wigod.

No Reitz v. Nationstar Mortg., LLC, 954 F. Supp. 2d 870, 885-88 (E.D. Mo. 2013)(holding that the TPP was not a valid enforceable contract requiring a permanent mortgage modification).

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Breach of Contract - TPP Executed?

If not, then no breach of contract. Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769 (4th

Cir. 2013) (no breach of contract because complaint arises from a general failure to follow HAMP guidelines).

An invitation to apply for a TPP does not create an actionable breach of contract claim. Maples v. Bank of Am., N.A., 2014 U.S. Dist. LEXIS

82699, 2014 WL 2769050 (M.D. Ga. June 18, 2014).

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Breach of Contract - All Conditions Satisfied?

Yes If borrower made all payments. Lazo v. Bank of Am., N.A., 2012 U.S. Dist. LEXIS

69979, at *21 2012 WL 1831577, at *6 (N.D. Cal. May 18, 2012) (dismissing claim under Rule 8 but holding that borrowers would be entitled to permanent modification after successfully making required payments during trial period).

No If borrower did not have a financial hardship. Pennington v. HSBC Bank USA, N.A., 493 F. Appx

548, 2012 U.S. App. LEXIS 20605, 2012 WL 4513333 (5th Cir. 2012) (finding no financial hardship).

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Breach of Contract - Servicers Signature

No contract because the servicer never signed. Pennington v. HSBC Bank USA, N.A., 493 F. Appx 548

(5th Cir. 2012).

Goss v. ABN Amro Mortgage Group, 549 Fed. Appx 466 (6th Cir. 2013).

McGann v. PNC Bank, N.A., 2013 U.S. Dist. LEXIS 46484, at *17, 2013 WL 1337204, at *6 (N.D. Ill. Mar. 29, 2013) (Pursuant to the TPP Agreements own terms, PNCs failure to sign the agreement evidences that it had no obligation to offer McGann a HAMP loan modification.).

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Breach of Contract - Consideration

Sufficient consideration: provide income documentation; swear under penalty of perjury that [the borrower]

provided truthful financial information; and agree to credit counseling if required. Wilson v. SunTrust Mortg., Inc., 2014 U.S. Dist. LEXIS 33016, at *9 (E.D. Va. Mar. 12, 2014)(applying Wigod).

Providing documents is not sufficient consideration. Almeida v. U.S. Bank Natl Assn, 2014 U.S. Dist. LEXIS 30319 , at

*19-21(D. Mass. Mar. 10, 2014).

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Breach of Contract Breach

Failing to send permanent modification agreement before or at the end of the three-month period. Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir. 2013); Corvello v. Wells Fargo Bank, N.A., 728 F.3d 878 (9th Cir. 2013).

Not providing modification because no investor approval, which was not required under TPP. Johnson v. IndyMac Mortg. Servicing, 2014 U.S. Dist. LEXIS 55610, 2014 WL 1652594 (D. Mass. Apr. 22, 2014).

Sending foreclosure notices, assessing late fees although paid in full under TPP, and not crediting account. Wilson v. SunTrust Mortg., Inc., 2014 U.S. Dist. LEXIS 33016 (E.D. Va. Mar. 12, 2014)(citing Wigod).

No breach Payments increased from TPP to permanent modification.

Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir. 2013).

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Breach of Contract - Damages

Higher interest rate

More time needed to payoff loan

Increased principal balance

Would have filed bankruptcy

Late fees

Penalties

Damage to credit

See Wilson v. SunTrust Mortg., Inc., 2014 U.S. Dist. LEXIS 33016 (E.D. Va. Mar. 12, 2014).

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Promissory Estoppel Is there a promise ?

Yes TPP is an unambiguous promise. Freitas v. WFHM, 703 F.3d 436 (8th Cir. 2013) (holding

that the TPP was an unambiguous promise of a permanent loan modification under HAMP if all trial period plan payments as set forth in the TPP Contract were timely made and required documentation was submitted).

No Subject to maintaining requirements of TPP. Pennington v. HSBC Bank USA, N.A., 493 F. Appx 548,

2012 U.S. App. LEXIS 20605, 2012 WL 4513333 (5th Cir. 2012).

35

Promissory Estoppel Detrimental Reliance

Increased interest Higher principal balances and service fees Extended payoff time periods, Deterred from seeking other remedies Unaffordable mortgage payments Damage to their credit Costs and expenses to prevent or fight

foreclosure Additional income tax liability

See Williams v. Saxon Mortg. Servs., 2014 U.S. Dist. LEXIS 24494 (E.D. Mich. Jan. 13, 2014)(denying motion to dismiss promissory estoppel claim). 36

Breach of Duty of Good Faith and Fair Dealing Claim Allowed

In conjunction with breach of contract claim Laughlin v. Bank of Am., N.A., 2014 U.S. Dist. LEXIS

79441, 2014 WL 2602260 (D.N.J. June 11, 2014).

Because servicer told borrower it would stay foreclosure during loan modification but did not

Rapacki v. Chase Home Fin., LLC, 2012 U.S. Dist. LEXIS 54685, 2012 WL 1340119 (D. Or. Apr. 17, 2012).

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Breach of Duty of Good Faith and Fair Dealing No Claim

No contract Almeida v. U.S. Bank Natl Assn, 2014 U.S. Dist. LEXIS

30319(D. Mass. Mar. 10, 2014).

Servicer not motivated by a desire to gain an unfair advantage Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir. 2013).

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Negligence Could be barred by economic loss doctrine.

Almeida v. U.S. Bank Natl Assn, 2014 U.S. Dist. LEXIS 30319, * 23(D. Mass. Mar. 10, 2014).

No duty. No duty between the mortgage holder/servicer.

Almeida, 2014 U.S. Dist. LEXIS 30319 at *24. HAMP does not create an independent duty of care if there

is no other basis for that duty. Larivaux v. Bank of Am., N.A., 2013 U.S. Dist. LEXIS 79673, at

*18-19, 2013 WL 2467752, at *6 (D. Mass. Jun. 6, 2013). ([C]ourts in this district have repeatedly held that a plaintiff cannot state a claim for negligence arising out of a violation of HAMP or its regulations . . . . Because no new duty of care is established by the HAMP guidelines, plaintiff has not set forth a plausible claim for negligence.).

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Breach of Fiduciary Duty - No Duty

No express or implied contract, so no duty Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769 (4th

Cir. 2013).

Sufficient facts not alleged to show how relationship differs from the typical debtor-creditor relationship

Robinson v. Deutsche Bank Natl Trust Co., 2013 U.S. Dist. LEXIS 50797, 2013 WL 1452933 (E.D.N.C. Apr. 9, 2013). 40

Negligent Misrepresentation Can State a Claim

False statements - not to worry, loan modification pending final reset, and not in danger of losing home Dresser v. U.S. Bank, N.A., 2014 U.S. Dist. LEXIS 119841

(C.D. Cal. Aug. 27, 2014).

Reliance Undertook no other loss mitigation options and did not file Chapter 13 bankruptcy Pulsifer v. U.S. Bank, N.A. (In re Pulsifer), 2014 U.S. Dist.

LEXIS 1852, 2014 WL 61230 (E.D. Wis. Jan. 8, 2014). 41

Negligent Misrepresentation Cannot State a Claim

No false statement Servicer needed more information to process the

application;

No duty of care;

No detrimental reliance; and

No damages Interest and fees did not arise because of the TPP.

Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769 (4th Cir. 2013); Pennington v. HSBC Bank USA, N.A., 493 F. Appx 548, 2012 U.S. App. LEXIS 20605, 2012 WL 4513333 (5th Cir. 2012).

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Intentional Infliction of Emotional Distress

Not outrageous conduct: mishandling loan modification application;

threatening foreclosure by phone and in the mail; or

misplacing borrowers personal and financial information.

Echeverria v. BAC Home Loans Servicing, LP, 900 F. Supp. 2d 1299, 1304 (M.D. Fla. 2012).

Inconvenience and agitation caused by loan modification problems is not actionable.

Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir. 2013).

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Fraud Not sufficiently pleaded

Not pleaded with particularity under Rule 9(b). Freitas v. WFHM, 703 F.3d 436 (8th Cir. 2013).

Not more than a sheer possibility. Rutledge v. Wells Fargo Bank, N.A. (In re Rutledge), 510 B.R. 491 (Bankr. M.D.N.C. 2014).

No allegation that bank employee knew representation was false. Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843 (8th Cir. 2014).

But heightened pleading standard has been relaxed Underlying allegations exploring loss mitigation

alternatives with [plaintiffs], when it was in fact, not considering them for anything but foreclosure[.]

Claim allowed even though borrowers did not name specific individuals and dates. Doran v. Wells Fargo Bank, 2012 U.S. Dist. LEXIS 42805, 2012 WL 1066879 (D. Haw. Mar. 28, 2012). 44

UDAP Claims

Whether there is an actionable UDAP claim varies by state.

In Massachusetts, a borrower can make a UDAP claim for a servicers repeated mistakes during loan modification process causing loss of equity and damage to credit score. Young v. Wells Fargo Bank, N.A., 717 F.3d 224 (1st Cir.

2013).

Johnson v. IndyMac Mortg. Servicing, 2014 U.S. Dist. LEXIS 55610, 2014 WL 1652594 (D. Mass. Apr. 22 2014).

45

New Federal Cause of Action to Recover Under HAMP - Real Estate Settlement Procedures Act Reg X

Notice of Error 12 CFR 1024.35(d)

Request for Information 12 CFR 1024.36(c)

Wilson v. Bank of America, N.A., 2014 U.S. Dist. LEXIS 134208 (E.D. Pa. Sept. 24, 2014). (Allegations of a failure to conduct a reasonable investigation and to adequately respond to a notice of error and request for information involving a TPP is enough to withstand a motion to dismiss of a RESPA claim). 46

Real Estate Settlement Procedures Act Reg X Loss Mitigation Procedures -12 CFR 1024.41

Only applicable to loans secured by principal

residence.

Five days to notify the borrower of receipt of the loss mitigation packet and what additional information is needed.

If application is received 37 days prior to foreclosure, the review must be completed within 30 days.

If application is received 90 days prior to foreclosure, the borrower is entitled to appeal any loss mitigation determination.

47

Real Estate Settlement Procedures Act Reg X Loss Mitigation Procedures -12 CFR 1024.41

No foreclosure action unless the loan is more than 120 days delinquent:

Servicer cannot start the process if the borrower has submitted a complete application unless: Borrower is notified that no loss mitigation options are

available and all appeals are exhausted; Borrower rejects all loss mitigation options; or Borrower fails to comply with the loss mitigation

requirements.

Servicer cannot move for judgment if the borrower submits a complete application unless: Borrower is notified that no loss mitigation options are

available and all appeals are exhausted; Borrower rejects all loss mitigation options; or Borrower fails to comply with the loss mitigation

requirements.

48

Questions?

Christy Ames

[email protected]

49

mailto:[email protected]

Residential Mortgage Servicing and Foreclosure Challenges

in an Evolving Regulatory and Litigation Environment

ANDREW K. STUTZMAN

Philadelphia, PA

Tuesday, December 16, 2014

Strafford Webinars

Stradley Ronon Stevens & Young, LLP 51

Haynes v. Chase Bank USA, N.A.,

2014 WL 3608891 (Bankr. S.D.N.Y. July 22, 2014)

Claim is an alleged violation of debtors and the class

members' discharges

for failure to correct their credit reports that list their debt,

post-discharge ,

as being only charged off, rather than being discharged

in bankruptcy.

Chase contends that it in fact has no obligation

to revise or correct the credit reporting

that it has previously done.


Collier on Bankruptcy

"The failure to update a credit report to show that a debt

has been discharged is also a violation of the discharge

injunction if shown to be an attempt to collect the debt.

Because debtors often feel compelled to pay debts listed

in credit reports when entering into large transactions,

such as a home purchase, it should not be difficult to

show that the creditor, by leaving discharged debts on a

credit report, despite failed attempts to have the creditor

update the report, is attempting to collect the debt.


First, because Chase,

sold its debt pre-bankruptcy and therefore pre-

discharge, to a third party,

Chase contends that it

neither has an ongoing obligation with respect to

credit reporting under the Fair Credit Reporting

Act,

nor, as it no longer has a debt to enforce, under

Section 524(a) of the Bankruptcy Code.


Second, Chase argues that, if,

as it contends,

it has no continuing obligation after the sale of

the debt, prepetition, under the Fair Credit

Reporting Act,

it has no other duties under Section 524(a) of the

Bankruptcy Code.


Let me address that latter argument first.

The complaint does not specifically assert a claim under the FCRA.

Instead, it asserts a claim specifically under Sections 105(a) and

524(a) of the Bankruptcy Code for violation of the discharge under

Section 727 of the Code.

In essence, then, Chase is asserting that the Fair Credit Reporting

Act has implicitly repealed Section 524(a) of the Bankruptcy Code as

interpreted by the foregoing case law,

or at least circumscribes Chase's duties under Section 524(a) of the

Bankruptcy Code with respect to correcting debtors credit reports.

Of course, the FCRA did not expressly repeal or curtail Section

524(a) of the Bankruptcy Code.


Chase's other argument is closely related

having sold its debt

it cannot be seen in a plausible way to have any

interest in continuing to enforce that discharged

debt

and, therefore, not only does it lack an ongoing

FCRA duty to correct the credit reports,

it also cannot be liable under Section 524 of the

Bankruptcy Code, .


Chase contends that its last transaction or

experience with respect to plaintiff's debt

was the sale itself to a third party,

pre-bankruptcy

and, thus, pre-discharge,

and, therefore, that it has no obligation to continue to

deal with the credit reporting agencies

to report that the debt is no longer merely charged off,

but, instead, has been discharged through bankruptcy,

or that it has any interest in the debts subsequent

collection.


the complaint, if true

states a cause of action against Chase

for breach of the discharge under Sections 727

and 524(a)(2) of the Bankruptcy Code

for intentionally assisting in the collection of

discharged debt by not correcting the debtors

credit reports to reflect that the debt has, in fact,

been discharged.


There are three theories upon which courts have

refused to entertain nationwide debtor class actions to

remedy discharge violations or have circumscribed

them on a district-by-district basis.

The first is premised upon the notion that the Court's

exercise of jurisdiction over debtors other than the debtor

before it,

or, in some courts, the debtors in its district,

will not lie because that determination does not affect the

lead plaintiff's estate,

its bankruptcy estate,

and there is no related to jurisdiction in respect of the

other debtor class members' claims under 28 U.S.C.

Section 1334(b).


Similarly, some courts have dismissed similar national

class actions on jurisdictional grounds based on 28

U.S.C. Section 1334(e),

which states, Only the district court in which a case

under title 11 is commenced or is pending shall have

exclusive jurisdiction of all the property,

wherever located,

of the debtor as of the commencement of such case,

and of property of the estate

and overall claims or causes of action that involve

construction of section 327 of title 11 [which pertains to

the retention and compensation of professionals.]


The remaining rationale for the courts that have found a

lack of jurisdiction over nationwide debtor class actions to

address systematic discharge violations, is

that the basis for enforcing the discharge under

Sections 524(a)(2) and 727 of the Bankruptcy

Code

is the individual court's discharge order.

[Thus,] only the issuing court, that is, only the

court issuing an injunction, should have the

power to enforce that injunction.


I decline to follow the district only cases

and believe that any particular bankruptcy court

has the power to decide a nationwide class

action

intended to remedy the alleged systematic

violation of the discharge.

That, of course, leaves the issue of whether

class certification itself is appropriate,

and that's left for another day.


65


Motion for Consolidation and

Appointment of Interim Class Counsel,

October 9, 2014

Haynes v. Chase Bank USA, N.A., Bankr. S.D.N.Y., Adv. No. 1308370 (RDD)

Echevarria v. Bank of America Corporation, Bankr. S.D.N.Y., Adv. No. 1408216 (RDD)

Bruce v. Citigroup, Inc., Bankr. S.D.N.Y., Adv. No. 1408224 (RDD)

Belton v. GE Capital Consumer Lending, Inc., Bankr. S.D.N.Y., Adv. No. 1408223 (RDD)


Andrew K. Stutzman [email protected]

215.564.8008

www.stradley.com

MORTGAGE SERVICING HOT TOPICS:

TCPA Developments and

FDCPA Liability in Bankruptcy

Ralph T. Wutscher

Principal

[email protected]

Admitted to Practice Law in IL

C A L I F O R N I A | F L O R I D A | I L L I N O I S | I N D I A N A | O H I O | W A S H I N G T O N, D . C.

WWW.MWBLLP.COM

Strafford Publications Webinar

December 16, 2014

68

Disclaimer

This presentation is provided for informational purposes

only, and should not be treated as legal advice.

For more information, please contact the speaker.

69

TCPA

Background

Telephone Consumer Protection Act (47 U.S.C. 227, et seq.)

$500 to $1,500 penalty per call

Telemarketing

Servicing

70

TCPA

S.D. Cal Rejects FCC Interpretation of ATDS

11th Cir. Rules Subscribers Are TCPA Called Parties

Petitions Pending Before the FCC on Called Parties and

Similar Issues

71

TCPA

Marks v. Crunch San Diego, LLC, Case No. 14-cv-00348-BAS-

BLM, 2014 U.S. Dist. LEXIS 152923 (S.D. Cal. Oct. 23, 2014)

An ATDS is equipment that has the capacity (A) to store or

produce numbers to be called, using a random or

sequential number generator; and (B) to dial such

numbers.

See 47 U.S.C. 227(a)(1)

72

TCPA



FCC commentary broadly interpreted the definition of

ATDS as any equipment that has the specified capacity to

generate numbers and dial them without human

intervention regardless of whether the numbers called are

randomly or sequentially generated or come from calling

lists.

See In the Matter of Rules and Regulations Implementing

the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd 15391,

15392 (2012)

73

TCPA



Court holds that the FCC has no authority to modify or

interpret the definition of an automated telephone dialing

system (ATDS)

74

TCPA

Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.

2014)

Only cellphone subscribers or their agents may give

consent to receive autodialed collection calls to a cell

phone

75

TCPA


2014)



phone

Revocation of consent under the TCPA need not be in

writing, can be oral

76

TCPA


2014)



phone

Revocation of consent under the TCPA need not be in

writing, can be oral

Subscriber need not be charged for the call

77

TCPA

Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265 (11th Cir.

2014)

Auto-dialed telephone calls intended for a former customer

but received by a cellular telephone subscriber without their

prior express consent violated the TCPA.

78

TCPA

Petitions Pending Before the FCC

Santander Petition for Expedited Declaratory Ruling, CG Docket

02-278 (July 10, 2014)

American Bankers Association Petition for Exemption, CG

Docket 02-278 (Oct. 14, 2014)

Consumer Bankers Association Petition for Declaratory Ruling,

CG Docket 02-278 (Sept. 19, 2014)

Rubios Restaurant, Inc. Petition for Expedited Declaratory

Ruling, CG Docket 02-278 (Aug. 11, 2014)

79

TCPA

Santander Petition for Expedited Declaratory Ruling, CG

Docket 02-278 (July 10, 2014)

Prior express consent cannot be revoked or, alternatively,

the caller may require consumer to revoke consent through

specifically enumerated methods

80

TCPA

American Bankers Association Petition for Exemption, CG

Docket 02-278 (Oct. 14, 2014)

Requesting exemptions for certain consumer alerts

81

TCPA

Consumer Bankers Association Petition for Declaratory Ruling,

CG Docket 02-278 (Sept. 19, 2014)

Complete compliance with TCPAs prior express consent

requirement is impossible because of reassigned mobile

telephone numbers, and the inability to reliably ascertain

the identity of the new subscriber prior to the call or text

message

82

TCPA

Rubios Restaurant, Inc. Petition for Expedited Declaratory

Ruling, CG Docket 02-278 (Aug. 11, 2014)

Requests a bad faith defense that releases companies

from liability if they can show the subscriber of the

reassigned number intentionally delayed or failed to tell the

company that the number had been reassigned.

83


Background

Fair Debt Collection Practices Act (15 U.S.C. 1692, et seq.)

The FDCPA prohibits use of any false, deceptive, or misleading

representation or means in connection with the collection of any

debt. See 11 U.S.C. 1692e.

FDCPA section 1692f prohibits use of unfair or unconscionable

means to collect or attempt to collect any debt. See 11 U.S.C.

1692f.

84


Background

FDCPA rulings are of concern to creditors collecting their own

debts, and collecting debts not in default when obtained:

State and local laws

CFPB Bulletin 2013-07 (July 10, 2013)

CFPB Bulletin 2014-01 (Aug. 19, 2014)

85

FDCPA

11th Circuit Holds that Filing a Proof of Claim on a Time

Barred Debt Violated the FDCPA

Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.

July 10, 2014)

86

FDCPA



Absent an objection from either the Chapter 13 trustee or a

party in interest, a proof of claim is automatically allowed

under the Bankruptcy Code

See 11 U.S.C. 502(a)-(b) and Bankruptcy Rule 3001(f)

87

FDCPA



Holds that filing a proof of claim on a time barred debt was

unfair, unconscionable, deceptive, and misleading

within the scope of the FDCPA

Rejects argument that filing a proof of claim was not

collection activity aimed at the consumer

88

FDCPA



Crawford decision conflicts with the plain language of the

FDCPA:

Filing of a proof of claim is not debt collection activity within

the meaning of the FDCPA

Filing a proof of claim is neither false, misleading, or deceptive

nor unfair or unconscionable.

89

FDCPA



Conflicts with other Courts of Appeal addressing the issue of

whether filing a proof of claim in bankruptcy can support a

cause of action under FDCPA

90

FDCPA



Conflicts with other Courts of Appeal

Conflicts with every district court in the Eleventh Circuit that

has addressed whether filing a proof of claim can violate the

FDCPA

91

FDCPA



Conflicts with other Courts of Appeal

Conflicts with district courts in the Eleventh Circuit

Conflicts with every reported decision on the issue whether

filing a proof of claim can provide the basis for a cause of

action under the FDCPA

92

FDCPA



The FDCPA should not be read to prohibit acts contemplated

by the Bankruptcy Code

See Kokoszka v. Belford, 417 U.S. 642, 94 S. Ct. 2431

(1974)

93

FDCPA



Ninth Circuit has concluded that FDCPA claim is precluded

where the Bankruptcy Code provides a remedy

See Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 511 (9th

Cir. 2002)

94

95

Thank you for attending

MORTGAGE SERVICING HOT TOPICS:

TCPA Developments and


The MERS System: How it Works

Brian Blake, Counsel MERSCORP Holdings, Inc.

97

What is MERS?

What people commonly refer to as MERS is actually three very different things:

MERSCORP Holdings, Inc.

Mortgage Electronic Registration Systems, Inc. (MERS)

MERS System

98

Who are we?

MERSCORP Holdings, Inc. (MERSCORP): Operating company that owns and operates the MERS System.

Mortgage Electronic Registration Systems, Inc. (MERS): Subsidiary of MERSCORP, sole purpose is to serve as mortgagee in land records for loans registered on the MERS System (residential loans) and MERS Commercial

The MERS System: the electronic registry tracking the servicing rights contracts and ownership of mortgage loans.

How the MERS System Works

At closing, contract names MERS the mortgagee as nominee for lender and the lenders successors and assigns. The mortgage can also be assigned to MERS post-closing.

In tandem with the origination and recording of the MERS mortgage (or assignment of the mortgage to MERS), the MERS Member registers the loan on the MERS System.

MERS remains the lien holder in the land records whenever transfers of the promissory note or servicing rights take place between MERS members. These events, which are not recordable in the public land records, are tracked in the MERS System.

The MERS System is not a system of record nor a replacement for the public land records. No interests are transferred nor financial transactions occur on the system.

Lender sells note; the MERS System is updated for investor changes

Lender sells servicing; the MERS System is updated for servicing changes

Lender records the mortgage in the county land records in MERS name

Lender registers loan information on

the MERS System No breaks in chain of title when transfers

occur because the lien remains in MERS name

Borrower looks up servicer and investor info at

www.mers-servicerid.org

At closing, borrower signs a mortgage and

promissory note. MERS is appointed mortgagee-

as-nominee for the lender in the mortgage

100

What does MERS do and not do?

MERS does serve as mortgagee of record as nominee for the lender and its successors and assigns

MERS eliminates breaks in chain of title

MERS does not handle mortgage servicing or collect payments from borrowers

MERS is not involved in the servicers process on loan modifications, refinances or foreclosure decisions

MERS does not hold the notes, serve as a document custodian or replace the county land records

101

Benefits of the MERS System

Helps prevent breaks in chain of title for liens

As mortgagee of record, MERS is served with all legal notices affecting the real property and provides notice via email to the MERS System member servicing or owning the mortgage loan, lowering the overall cost of mortgage servicing and lending.

Free resource for borrowers to locate and contact their servicers and learn who owns their loan

Provides local officials with a free resource to identify the party responsible for maintaining vacant properties (>1,000 gov. subscribers)

102

Key Mortgage Provisions

DEFINITION: MERS is a separate corporation that is acting solely as a nominee for Lender and Lenders successors and assigns. MERS is the mortgagee under this Security Instrument.

TRANSFER OF RIGHTS IN THE PROPERTY:

For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lenders successors and assigns) and to the successors and assigns of MERS the following described property

Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lenders successors and assigns) has the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

103

MERS System Basics

Registration vs. Recording: The MERS System is not a legal system of record nor a replacement or substitute for the public land records. All mortgages naming MERS are recorded in the public land records for priority and enforceability purposes.

Tracking vs. Transfer: The MERS System is a tracking system; no interests are transferred on the systemonly tracked.

Contact Info

Brian Blake, Esq. Counsel MERSCORP Holdings, Inc. 1818 Library Street Reston, VA 20190 T: (703) 761-1275 F: (703) 748-0183 [email protected]

HBOR and Recent Developments

in Californias Statutory Scheme

Regarding Nonjudicial Foreclosures

Hunter R. Eley, Esq. Doll Amir & Eley LLP

1888 Century Park East, Ste. 1850 Los Angeles, California 90067

[email protected]

mailto:[email protected]

Preview of Presentation

I. The Importance of HBOR

II. The Fundamental Elements Of HBOR

III. HBORs Servicing Requirements

IV. Remedies Under HBOR

V. Trends In California Mortgage Litigation

106

I. The Importance of HBOR Background

Californias Homeowner Bill of Rights (HBOR) was passed in July 2012 and became effective on January 1, 2013.

Before HBOR was enacted, forty-nine (49) state attorneys general agreed to the National Mortgage Settlement (NMS) with five (5) of the countrys largest mortgage servicers.

The servicers agreed to provide $20 billion worth of mortgage-related relief to

homeowners and to abide by new servicing standards. However, under the NMS, while attorneys general can sue noncompliant servicers, borrowers cannot.

The California Legislature passed HBOR to give borrowers a private right of action to

enforce protections like those provided in the NMS as to all servicers not just the five (5) signatories to the NMS.

See Litigating Under the California Homeowner Bill of Rights & Nonjudicial Foreclosure Framework, California Homeowner Bill of Rights Collaborative, October 2014 Newsletter, available at http://www.calhbor.org/wp-content/uploads/2014/10/Litigating-under-the-California-Homeowner-Bill-of-Rights-Nonjudicial-Foreclosure-Framework.pdf.; see also Too Many Choices: Navigating The Mortgage Servicing Maze, California Homeowner Bill of Rights Collaborative, September 2014 Newsletter, http://calhbor.org/2014/09/12/september-newsletter-breaks-down-new-mortgage-servicing-comparison-chart/.

107

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newsletter-breaks-down-new-mortgage-servicing-comparison-chart/

The CFPB issued rules on mortgage servicing which became effective on January 10, 2014. Many similarities exist between HBOR and the CFPB rules, including a prohibition against dual tracking, increased notification requirements of loss mitigation opportunities and the appointment of a single point of contact for individuals interested in loss mitigation options.

In addition to California, Nevada, Minnesota and Colorado have

also passed legislation that prohibits dual tracking.

See Too Many Choices: Navigating The Mortgage Servicing Maze, California Homeowner Bill of Rights Collaborative, September 2014 Newsletter, http://calhbor.org/2014/09/12/september-newsletter-breaks-down-new-mortgage-servicing-comparison-chart/.; New Laws Prohibiting Dual Tracking in the Foreclosure Context, NOLO, http://www.nolo.com/legal-encyclopedia/new-laws-prohibiting-dual-tracking-the-foreclosure-context.html.

I. The Importance of HBOR Ripple Effect

108

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II. Fundamental Elements of HBOR

A. Broad Definition Of Servicers

Small Servicers Exception

National Mortgage Settlement Exception

B. First Liens On Owner-occupied, One-to-four Unit Properties Only

C. Borrowers

potentially eligibleforeclosure prevention alternative program

But Not:

o Surrendered

o Foreclosure Avoidance Scheme Participants

o Bankruptcy

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Mortgage servicer means a person or entity who directly services a loan, or who is responsible for interacting with the borrower, managing the loan account on a daily basis including collecting and crediting periodic loan payments, managing any escrow account, or enforcing the note and security instrument, either as the current owner of the promissory note or as the current owner's authorized agent. Mortgage servicer also means a subservicing agent to a master servicer by contract. Mortgage servicer shall not include a trustee, or a trustee's authorized agent, acting under a power of sale pursuant to a deed of trust. Cal. Civ. Code 2920.5(a).

Small Servicers Exception: Notably, the primary enforcement provision section 2924.12 does not apply to section to a depository institution chartered under state or federal law, a person licensed pursuant to Division 9 (commencing with Section 22000) or Division 20 (commencing with Section 50000) of the Financial Code, or a person licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code, that, during its immediately preceding annual reporting period, as established with its primary regulator, foreclosed on 175 or fewer residential real properties, containing no more than four dwelling units, that are located in California. Cal. Cal. Code 2924.12(j) and 2924.18(b).

NMS Exception: NMS-signatories that are NMS-compliant with respect to an individual borrower may escape HBOR liability. Cal. Civ. Code 2924.12(g).

See Too Many Choices: Navigating The Mortgage Servicing Maze, California Homeowner Bill of Rights Collaborative, September 2014 Newsletter, http://calhbor.org/2014/09/12/september-newsletter-breaks-down-new-mortgage-servicing-comparison-chart/.

II. Fundamental Elements of HBOR A. Broad Definition of Servicers

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Unless otherwise provided, paragraph (5) of subdivision (a) of Section 2924, and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. For these purposes, owner-occupied means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes.

Cal. Civ. Code 2924.15 (a); see also Penermon v. Wells Fargo Bank, N.A., 2014 WL 2754596, at *7 (N.D. Cal. June 11, 2014) (Court held that HBOR, however, is limited in that it only applies to foreclosures of first liens on owner-occupied, one-to-four unit properties).

II. Fundamental Elements of HBOR B. First Lien On Owner-occupied, One-to-four Unit Properties

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Borrower means any natural person who is a mortgagor or trustor and who is potentially eligible for any federal, state, or proprietary foreclosure prevention alternative program offered by, or through, his or her mortgage servicer. Cal. Civ. Code 2920.5 (c).

[B]orrower shall not include any of the following:

(A) An individual who has surrendered the secured property as evidenced by either a letter confirming the surrender or delivery of the keys to the property to the mortgagee, trustee, beneficiary, or authorized agent.

(B) An individual who has contracted with an organization, person, or entity whose primary business is advising people who have decided to leave their homes on how to extend the foreclosure process and avoid their contractual obligations to mortgagees or beneficiaries.

(C) An individual who has filed a case under Chapter 7, 11, 12, or 13 of Title 11 of the United States Code and the bankruptcy court has not entered an order closing or dismissing the bankruptcy case, or granting relief from a stay of foreclosure.

Cal. Civ. Code 2920.5 (c); see also Colom v. Wells Fargo Home Mortgage, Inc., 2014 WL 5361421, at *2 (N.D. Cal. Oct. 20, 2014) (Court dismisses HBOR claim because at the time alleged, the plaintiff had a Chapter 13 bankruptcy petition pending).

II. Fundamental Elements of HBOR C. Borrowers

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III. HBOR Servicing Requirements

A. Pre-Foreclosure Contact

B. Foreclosure Prevention Alternatives

C. No Dual Tracking!

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III. HBOR Servicing Requirements A. Pre-Foreclosure Contact

SCRA notice (Cal. Civ. Code 2923.55)

Notice of right to request documents, such as the note, deed of trust, assignments, and pay history (Cal. Civ. Code 2923.55)

Borrower contact efforts completed at least 30 days before recording NOD

In person or by telephone:

1. Assess financial condition; 2. Discuss alternatives to foreclosure; and 3. Advise of HUD counseling and right to follow-up meeting within fourteen (14) days.

OR

Due Diligence

1. Letter with HUD number; 2. Three (3) calls on different days and at difference times; and 3. Certified letter with toll free number and informational website two (2) weeks after calls, if no

response received

Declaration of contact or due diligence recorded with NOD 114

Failure to Contact

Factual Issue: Intengan v. BAC Home Loans Servicing LP, 214 Cal.App.4th 1047 (1st Dist., Div. 5 2013) (State court will not take judicial notice of compliance in notice of default); but see, Aghajanyan v. Greenpoint Mortg. Funding, 2014 WL 4748277 (C.D. Cal. Sept. 22, 2014) (US District Court takes judicial notice of compliance in notice of default).

Failure To Assess Financial Condition Properly or In Good Faith

Level Of Inquiry Not Set By Statute: Rosenfeld v. JP Morgan Chase Bank, N.A., 732 F.Supp.2d 952 (N.D. Cal. 2010) (Acknowledgement of inquiry into borrower condition complies with statute); Cordero v. U.S. Bank, N.A., 2014 WL 4658757 (S.D. Cal. Sept. 17, 2014) (No requirement borrower be satisfied with the results of contact); Mosarah v. SunTrust, 2012 WL 2117166 (E.D. Cal. June 11, 2012) (Contact does not require assessment to be correct or in good faith).

Modification Discussion In Compliance: Brown v. U.S. Bancorp, 2012 WL 665900 (C.D. Cal. Feb. 27, 2012) (Admission that loan modification discussed well before the notice of default was recorded).

III. HBOR Servicing Requirements A. Pre-Foreclosure Contact Contd

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III. Servicing Requirements Under HBOR B. Foreclosure Prevention Alternatives

1. What are the foreclosure prevention alternatives?

2. What servicer obligations arise?

Initial Communication

Single Point of Contact (SPOC)

Acknowledgement

Decision

Appeal

Material Change

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III. HBOR Servicing Requirements B. Foreclosure Prevention Alternatives

1. What Are The Foreclosure Prevention Alternatives?

Foreclosure prevention alternative

means a first lien loan modification or another

available loss mitigation option.

Cal. Civ. Code 2920.5.

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Timing Five (5) Days After Recording NOD A mortgage servicer that offers one or more foreclosure prevention alternatives shall

send a written communication to the borrower that includes all of the following information:

(1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives.

(2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative.

(3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.

Unless, the borrower has previously exhausted the first lien loan modification process.



2. What Servicer Obligations Arise? Initial Communication

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According to section 2923.7(a), upon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.

Penermon v. Wells Fargo Bank, N.A., 2014 WL 2754596, at *12 (N.D. Cal. June 11, 2014) (Court holds that a plain reading of the statute requires Wells Fargo to assign a SPOC when a borrower requests a foreclosure prevention alternative. It does not require a borrower to specifically request a SPOC).

Diamos v. Specialized Loan Servicing LLC, No. 13-CV-04997 NC, 2014 WL 5810453, at *4 (N.D. Cal. Nov. 7, 2014) (court dismisses section 2923.7 claim because plaintiff does not allege that she made a request for a SPOC.)


2. What Servicer Obligations Arise? Appointing SPOC

119

According to section 2923.7(b), the single point of contact shall be responsible for doing all of the following:

(1) Communicating the process by which a borrower may apply for an available foreclosure prevention alternative and the deadline for any required submissions to be considered for these options.

(2) Coordinating receipt of all documents associated with available foreclosure prevention alternatives and notifying the borrower of any missing documents necessary to complete the application.

(3) Having access to current information and personnel sufficient to timely, accurately, and adequately inform the borrower of the current status of the foreclosure prevention alternative.

(4) Ensuring that a borrower is considered for all foreclosure prevention alternatives offered by, or through, the mortgage servicer, if any.

(5) Having access to individuals with the ability and authority to stop foreclosure proceedings when necessary.

According to section 2923.7(e), single point of contact means an individual or team of personnel each of whom has the ability and authority to perform the responsibilities described in subdivisions (b) to (d), inclusive.

Johnson v. PNC Mortgage, 2014 WL 3962662, at *11 (N.D. Cal. Aug. 12, 2014) ([t]he single point of contact can be an individual or a team).


2. What Servicer Obligations Arise? Appointing SPOC

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When a borrower submits a complete modification application or any document in connection with a modification application, the mortgage servicer shall provide written acknowledgment of the receipt of the documentation within five (5) business days of receipt.

In its initial acknowledgment of receipt (within 5 days) of the loan modification application, the

mortgage servicer shall include the following information:

(1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consider an offer of a loan modification or other foreclosure prevention alternative.

(2) Any deadlines, including deadlines to submit missing documentation, that would affect the processing of a first lien loan modification application.

(3) Any expiration dates for submitted documents.

(4) Any deficiency in the borrower's first lien loan modification application.



2. What Servicer Obligations Arise? Acknowledgment

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Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following:

(1) The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial.

(2) If the denial was based on investor disallowance, the specific reasons for the investor disallowance.

(3) If the denial is the result of a net present value calculation, the monthly gross income and property value used to calculate the net present value and a statement that the borrower may obtain all of the inputs used in the net present value calculation upon written request to the mortgage servicer.

(4) If applicable, a finding that the borrower was previously offered a first lien loan modification and failed to successfully make payments under the terms of the modified loan.

(5) If applicable, a description of other foreclosure prevention alternatives for which the borrower may be eligible, and a list of the steps the borrower must take in order to be considered for those options. If the mortgage servicer has already approved the borrower for another foreclosure prevention alternative, information necessary to complete the foreclosure prevention alternative.

Cal. Civ. Code 2923.6(f)


2. What Servicer Obligations Arise? Decision: Denial

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(a) If a foreclosure prevention alternative is approved in writing prior to the recordation of a notice of default, a mortgage servicer shall not record a notice of default under either of the following circumstances:

(1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan.

(2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder, and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.

(b) If a foreclosure prevention alternative is approved in writing after the recordation of a notice of default, a mortgage servicer shall not record a notice of sale or conduct a trustee's sale under either of the following circumstances:

(1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan.

(2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder, and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.



2. What Servicer Obligations Arise? Decision: Approval

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If the borrowers application for a loan modification is denied, the borrower shall have at least thirty (30) days from the date of the written denial to appeal the denial and to provide evidence that the mortgage servicers determination was in error.

Cal. Civ. Code 2923.6(d).


2. What Servicer Obligations Arise? Appeal

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In order to minimize the risk of borrowers submitting multiple applications for first lien loan modifications for the purpose of delay, the mortgage servicer shall not be obligated to evaluate applications from borrowers who have already been evaluated or afforded a fair opportunity to be evaluated for a first lien loan modification prior to January 1, 2013, or who have been evaluated or afforded a fair opportunity to be evaluated consistent with the require

Strafford - CLE (Mortgage Servicing)

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