Mealey's Mortgage Lending

  • June 04, 2019

    Ohio Panel Holds Court’s Error On Date Was Not A Reversable Error

    WARREN, Ohio — After holding that an assignment of error asserted by borrowers that a typographical error in a court’s journal entry caused them to fail to timely respond to a loan servicer’s motion for summary judgment in a foreclosure action lacked merit, an Ohio appeals court on June 3 affirmed judgment for the servicer (Ocwen Loan Servicing, LLC v. Michael R. Van, et al., No. 2018-L-025, Ohio App., 11th Dist., Lake Co., 2019 Ohio App. LEXIS 2253).

  • June 04, 2019

    Panel Holds Bank Lacked Standing To Foreclose, Reverses Judgment

    MILWAUKEE — A Wisconsin appeals court on June 4 reversed a trial court’s decision granting summary judgment for a bank, holding that the lender failed to establish that it holds a borrower’s note and had standing to bring a foreclosure action against her (HSBC Bank USA, National Association as Trustee for Structured Asset Securities Corp. MGT. Pass-Through Certificate, Series 2004-SCI v. Patricia R. Stewart-Martin, No. 2018AP833, Wis. App., Dist. 1, 2019 Wisc. App. LEXIS 306).

  • May 31, 2019

    Judge Refuses To Dismiss RESPA Claim Related To Payment Of Insurance Premium

    NASHVILLE, Tenn. — A federal judge in Tennessee on May 29 partially denied motions filed by loan servicers to dismiss claims for violations of the Real Estate Settlement Procedures Act (RESPA), holding that whether the servicers possessed the information they needed to pay a renewal insurance premium was a question of fact that could not be resolved on a motion to dismiss (Ricky Matlock, et al. v. RoundPoint Mortgage Servicing Corporation, et al., No. 3:18-cv-00047, M.D. Tenn., 2019 U.S. Dist. LEXIS 89785).

  • May 29, 2019

    Banks Ask For Rehearing On Miami’s FHA Claims, Proximate Cause Finding

    ATLANTA — Several banks on May 24 filed a petition for rehearing en banc with the 11th Circuit U.S. Court of Appeals, seeking review of the reversal of a district court’s dismissal of claims for violations of the Fair Housing Act (FHA) asserted by the city of Miami, arguing that the court’s ruling did not follow directions given by the U.S. Supreme Court and that the issue is exceptionally important (Miami v. Wells Fargo & Co., et al., Nos. 14-14544, 14-14543, 11th Cir.).

  • May 28, 2019

    U.S. Supreme Court Denies Cert In Action Challenging Assignment Of Deed

    WASHINGTON, D.C. — The U.S. Supreme Court on May 28 denied a petition for writ of certiorari filed by borrowers who sought review of a Fifth Circuit U.S. Court of Appeals decision that a bank met the requirements to foreclose under Texas law and that a magistrate judge's decision in the borrowers' favor was based on an incorrect premise that Mortgage Electronic Registration Systems Inc. (MERS), as beneficiary, did not have the authority to assign the deed (Joanna Burke, et al. v. Deutsche Bank National Trust Co., No. No. 18-1370, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 1613).

  • May 28, 2019

    Judge Grants Judgment On Quiet Title Claim For Bank Of America

    LAS VEGAS — After a recent Ninth Circuit U.S. Court of Appeals decision that a bank’s payment satisfied the superpriority portion of a lien, on remand, a Nevada federal judge on May 24 granted summary judgment for the bank on its quiet title claim (Bank of America, N.A. v. Arlington West Twilight Homeowners Association, et al., 2:16-CV-650, D. Nev., 2019 U.S. Dist. LEXIS 88287).

  • May 23, 2019

    Judge Partially Allows RESPA Claim Against Wells Fargo To Proceed

    CHICAGO — An Illinois federal judge on May 21 partially granted a bank’s motion to dismiss claims for violations of the Real Estate Settlement Procedures Act (RESPA) and Illinois law but held that borrowers can pursue their RESPA cause of action for the bank’s alleged failure to properly respond to a notice of error regarding moving forward with a foreclosure sale while a complete loss mitigation application was pending (Todd Smith, et al. v. Wells Fargo Bank, N.A., No. 18-7979, N.D. Ill., 2019 U.S. Dist. LEXIS 84875).

  • May 23, 2019

    Judge Dismisses UCL, HBOR Claims Against Servicer, Orders Sanctions

    SACRAMENTO, Calif. — A California federal judge on May 21 granted a loan servicer’s motion to dismiss a borrower’s claims for violations of California’s unfair competition law (UCL) and the Homeowners Bill of Rights (HBOR) and negligence related to a reverse mortgage, holding that the HBOR sections did not apply to the servicer and that the complaint lacked the reasonable particularity of facts to support a UCL claim (David Coltrin v. James B. Nutter & Company, No. 2:19-cv-00483, E.D. Calif., 2019 U.S. Dist. LEXIS 85631).

  • May 21, 2019

    Fifth Third Will Not Respond To Borrowers’ High Court Petition

    WASHINGTON, D.C. — Fifth Third Mortgage Co. on May 16 waived its right to respond to a petition for writ of certiorari filed in the U.S. Supreme Court, which seeks review of a district court’s decision that a borrower was prohibited from asserting that a mortgage company violated an automatic bankruptcy stay because he failed to adequately disclose his assets in bankruptcy court (Mark Anthony Fornesa, et al. v. Fifth Third Mortgage Co., No. 18-1339, U.S. Sup.).

  • May 15, 2019

    Judge Enters Judgment For Loan Servicer On Borrowers’ RESPA, TILA Claims

    SAN DIEGO — A California federal judge on May 10 granted summary judgment for a loan servicer on borrowers’ claims for violations of the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA), holding that they failed to show that the servicer did not properly respond to their qualified written requests (QWRs) and that TILA does not apply once a borrower files for bankruptcy (Arthur A. Loewy, et al. v. CMG Mortgage, Inc., et al., No. 17cv341, S.D. Calif., 2019 U.S. Dist. LEXIS 80620).

  • May 13, 2019

    Supreme Court Will Not Review Whether FHFA Oversees Fannie Mae

    WASHINGTON, D.C. — The U.S. Supreme Court on May 13 denied a borrower’s petition for writ of certiorari in which she argued that the Second Circuit U.S. Court of Appeals “failed to address” whether the Federal National Mortgage Association (Fannie Mae) is a federal instrumentality under the conservatorship of the Federal Housing Finance Agency (FHFA), affirming the dismissal of her lawsuit against them and others (Dorothy A. Smulley v.  Federal Housing Finance Agency, et al., No. 18-1183, U.S. Sup.).

  • May 09, 2019

    Panel Holds Bank Lacked Standing To Foreclose, Reverses Judgment

    BROOKLYN, N.Y. — After holding that a bank failed to establish that it was the holder or assignee of a note when it filed foreclosure proceedings, a New York appeals court on May 8 reversed a trial court’s decision granting summary judgment against a borrower (U.S. Bank National Association, etc. v. Luis Laino, No. 2016-01264, N.Y. Sup., App. Div., 2nd Dept., 2019 N.Y. App. Div. LEXIS 3610).

  • May 07, 2019

    Bank Will Not Respond To Petition Disputing Whether Assignment Was Void

    WASHINGTON, D.C. — A bank on May 3 waived its right to respond to a U.S. Supreme Court petition for certiorari filed by borrowers who challenge an appeals court’s decision that the bank met the requirements to foreclose under Texas law and that a magistrate judge’s decision in the borrowers’ favor was based on an incorrect premise that the Mortgage Electronic Registration Systems, Inc. (MERS), as beneficiary, did not have the authority to assign the deed (Joanna Burke, et al. v. Deutsche Bank National Trust Co., No. No. 18-1370, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 1613).

  • May 06, 2019

    Panel Reverses Dismissal Of Miami’s FHA Claims, Finds Proximate Cause

    ATLANTA — After holding that the city of Miami adequately pleaded that banks’ alleged discriminatory lending practices directly related to its tax-base injuries, a panel of the 11th Circuit U.S. Court of Appeals on May 3 reversed a district court’s dismissal of the city’s claims for violations of the Fair Housing Act (FHA) (City of Miami v. Wells Fargo & Co., et al., Nos. 14-14544, 14-14543, 11th Cir., 2019 U.S. App. LEXIS 13343).

  • May 03, 2019

    Judge Holds Material Fact Issues Exist On Whether Notice Related To Servicing

    SEATTLE — After finding that genuine disputes of material fact exist as to whether a loan servicer and lender breached a trial period plan by not offering a permanent loan modification to borrowers and whether a notice of error related to servicing, a Washington federal judge on May 2 denied the servicer’s motion for summary judgment on claims for breach of contract and violations of Washington law and the Real Estate Settlement Procedures Act (RESPA) (Kulwinder Mutti, et al. v. Rushmore Loan Management Services LLC, et al., No. 18-884, W.D. Wash., 2019 U.S. Dist. LEXIS 74482).

  • May 02, 2019

    Lender Could Not Seek Immediate Deferred Payments, California Panel Holds

    SAN FRANCISCO — After holding that a lender could not condition the reinstatement of a loan on the immediate payment of deferred amounts pursuant to a loan modification, a California panel on April 30 reversed a trial court’s dismissal of claims for violations of California law asserted by borrowers (Charles Taniguchi, et al. v. Restoration Homes, LLC, No. A152827, Calif. App., 1st Dist., Div. 2, 2019 Cal. App. LEXIS 396).

  • April 30, 2019

    Panel Reverses Dismissal Of Kickback Scheme Class Actions As Untimely

    RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on April 26 reversed a district court’s decision to dismiss five class action lawsuits in which the plaintiffs allege that various lenders and others engaged in “kickback schemes” in violation of the Real Estate Settlement Procedures Act (RESPA), holding that the borrowers were entitled to relief from a limitations period under the fraudulent concealment tolling doctrine (Mary E. Edmonson v. Eagle National Bank, et al., Nos. 18-1216, 18-1229, 18-1230, 18-1260, 18-1262, 4th Cir., 2019 U.S. App. LEXIS 12573).

  • April 29, 2019

    High Court Denies Review Of Limitations Period On Foreclosures

    WASHINGTON, D.C. — The U.S. Supreme Court on April 29 declined to review a borrower’s petition for writ of certiorari, seeking review of a court’s decision dismissing her claims for violations of Washington law and the Fair Debt Collection Practices Act (FDCPA) against a beneficiary and loan servicer, which held that nonjudicial foreclosures toll the statute of limitations (Kim Kerrigan v. Qualstar Credit Union, et al., No. 17-35174, U.S. Sup.).

  • April 29, 2019

    High Court Will Not Review Interpretation Of HERA Foreclosure Bar

    WASHINGTON, D.C. — The U.S. Supreme Court on April 29 denied a petition for writ of certiorari in which an investment pool sought review of a Ninth Circuit U.S. Court of Appeals ruling in which the court held that the Housing and Economic Recovery Act of 2008 (HERA) prevents homeowners associations (HOAs) and others from foreclosing on a property that was purchased and securitized by Federal Home Loan Mortgage Corp. (Freddie Mac) or the Federal Housing Finance Agency (Fannie Mae) even where a foreclosing party’s lien was senior to the loan (SFR Investments Pool 1 LLC v. Federal Home Loan Mortgage Corporation, et al., No. 18-670, U.S. Sup.).

  • April 26, 2019

    Judge Partially Dismisses FDCPA Claim, Allows Amendment Of Fee Allegations

    PITTSBURGH — A Pennsylvania federal judge on April 24 partially denied a motion to dismiss claims asserted by borrowers against a bank and loan servicer, holding that part of their claim for violation of the Fair Debt Collection Practices Act (FDCPA) could proceed, but that they must amend their claim under a Pennsylvania loan interest law to show that they actually paid the bank excessive fees (Thomas E. Owens, et al. v. JP Morgan Chase Bank, et al., No. 18-1421, W.D. Pa., 2019 U.S. Dist. LEXIS 69663).

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