Mealey's Mortgage Lending : Mealey's : Legal News & Analysis

Mealey's Mortgage Lending

February 01, 2023
9th Circuit Sets Submission On Briefs In Appeal Of Class RESPA Suit Ruling

SAN FRANCISCO — In a Jan. 31 order reporting the court’s “unanimous opinion that the facts and legal arguments are adequately presented in the briefs and record,” the Ninth Circuit U.S. Court of Appeals called off oral argument in an appeal of a ruling in a long-running Real Estate Settlement Procedures Act (RESPA) class action involving captive reinsurance agreements.
February 01, 2023
Consumer Fraud Claim In Loan Modification Suit Survives Summary Judgment

CHICAGO — A federal judge in Illinois denied Wells Fargo Bank NA’s motion for summary judgment on a claim for violation of Illinois’ consumer fraud statute in a lawsuit stemming from Wells Fargo’s failure to provide borrowers with a loan modification under the Home Affordable Modification Program (HAMP) before foreclosing on their home, ruling that genuine issues of material fact exist as to whether Wells Fargo is liable for violating the statute.
January 30, 2023
High Court Review Of Panel’s Cumulative Finality Ruling Against Borrower Sought

WASHINGTON, D.C. — U.S. Supreme Court review of a Fourth Circuit U.S. Court of Appeals panel’s dismissal of a borrower’s appeal for lack of jurisdiction on timeliness grounds is necessary because the appellate court improperly found cumulative finality even though the borrower had filed an interlocutory appeal and had not requested it, the borrower argues in a petition for writ of certiorari.
January 23, 2023
Supreme Court Will Not Hear Borrowers’ Due Process Appeal In Foreclosure Suit

WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 23 denied mortgage borrowers’ petition for certiorari for a Washington appellate panel’s decision affirming a state court’s grant of summary judgment in favor of a lender in a foreclosure dispute, in which the borrowers argued that the state court rulings deprived them of their constitutional right to due process.
January 20, 2023
S.C. High Court Leaves Adoption Of Mortgage Doctrine To State Assembly

COLUMBIA, S.C. — Ruling that adoption of the “replacement mortgage doctrine” is a question better left to the state General Assembly, the South Carolina Supreme Court affirmed a state appellate court’s ruling that because a mortgage lender had record knowledge that borrowers obtained an equity line of credit before providing them with a refinance loan, the lender did not have priority status over the line of credit provider.
January 20, 2023
None Of Borrower’s Claims Over Lender’s Creation Of Escrow Account Pass Muster

SAN ANTONIO — A federal judge in Texas dismissed claims brought by a borrower against his mortgage lender stemming from the lender’s conversion of his loan to an escrow loan after the borrower failed to pay his property taxes, ruling that the borrower has failed to sufficiently raise any argument to support his claims.
January 20, 2023
National Bank Act Preemption Appeal Proper To Cure Circuit Split, Bank Argues

WASHINGTON, D.C. — The U.S. Supreme Court should grant review of a bank’s petition for writ of certiorari to cure a circuit split regarding the National Bank Act’s (NBA’s) preemption of state laws that “attempt to set the terms on which federally chartered banks may offer mortgage escrow accounts authorized by federal law” because the issue is of “vital importance to the national banking system,” as reinforced by the Office of the Comptroller of the Currency (OCC), the bank argues in a reply brief filed in the Supreme Court.
January 19, 2023
Borrower’s Remaining Claims In Wrongful Foreclosure Suit Not Actionable

PASADENA, Calif. — A Ninth Circuit U.S. Court of Appeals panel affirmed a pair of dismissal rulings against a borrower in a wrongful foreclosure action, ruling that the borrower has failed to sufficiently show on appeal that his remaining claims are actionable and that the lower court was well within its discretion to deny the borrower leave to amend.
January 17, 2023
Panel: Borrower’s Failure To Challenge Damages Ruling Dooms Appeal

ATLANTA — A federal district court did not err in granting summary judgment in favor of a mortgage loan modification provider in a lawsuit filed by borrowers who alleged that the provider’s actions violated provisions of the Real Estate Settlement Procedures Act (RESPA) because the borrowers failed to sufficiently plead damages and did not challenge the court’s damages ruling on appeal, an 11th Circuit U.S. Court of Appeals panel affirmed.
January 17, 2023
Borrowers’ Appeal Rendered Moot By Home’s Sale At Foreclosure

NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Jan. 16 dismissed an appeal filed by borrowers in a lawsuit stemming from the foreclosure on their home as moot, ruling that dismissal is necessary because the property in question was sold at foreclosure.
January 10, 2023
Borrower Properly Pleaded Reliance In Mortgage Fraud Suit, Panel Rules

RICHMOND, Va. — A federal district court erred in dismissing a borrower’s Virginia common-law fraud claim against his lender in a lawsuit stemming from an alleged mortgage fraud scheme because the borrower sufficiently pleaded reliance in bringing the claim, a Fourth Circuit U.S. Court of Appeals panel ruled Jan. 9 in vacating and remanding.
January 09, 2023
Borrower Failed To Plead Pattern, Practice In Bringing Statutory Damages Claim

ATLANTA — A federal district court did not err in dismissing a borrower’s claim that his mortgage loan servicer violated the Real Estate Settlement Procedures Act (RESPA) and its implementing regulations in its handling of its response to the borrower’s notice of error in its bringing of a second foreclosure action against the borrower because the borrower failed to sufficiently plead a pattern or practice on the part of the loan servicer in alleging statutory damages, an 11th Circuit U.S. Court of Appeals panel ruled in affirming.
January 05, 2023
Borrower’s Lending Law Claims Against Servicer Lack Necessary Substance

FORT LAUDERDALE, Fla. — A borrower failed to sufficiently state a claim for relief in alleging that his mortgage loan servicer violated federal lending laws by failing to provide the borrower with an accurate accounting of his debt owed on his loan because the borrower did not plead any “unauthorized or improper charges” or make a showing of actual damages, a federal judge in Florida ruled in dismissing the borrower’s class claims with prejudice.
December 29, 2022
Dismissal Stipulation Ends Force-Placed Insurance, Mortgage Loan Dispute

SACRAMENTO, Calif. — Less than a month after reporting reaching an unspecified settlement with the remaining defendant in the putative class suit over home mortgage loan servicing and a reinsurance program, the plaintiff filed a notice of voluntary dismissal with prejudice in a California federal court.
December 22, 2022
Dismissal Of Wrongful Foreclosure Claim Upheld On Appeal To 5th Circuit

NEW ORLEANS — A federal district court did not err in dismissing a borrower’s wrongful foreclosure claim against her borrower because the borrower failed on appeal to challenge the district court’s determination that the borrower’s property “‘was not sold at an inadequate price,’” a Fifth Circuit U.S. Court of Appeals panel affirmed.
December 16, 2022
9th Circuit Panel Remands Lender’s Quiet Title Suit For Further Proceedings

SAN FRANCISCO — In a one-page order, a Ninth Circuit U.S. Court of Appeals panel on Dec. 15 vacated a federal district court’s order and judgment in a quiet title suit stemming from a homeowners association’s foreclosure on a home subject to a mortgage loan for failure to pay homeowners association assessments and remanded the action.
December 16, 2022
N.C. Appellate Panel Overturns Summary Judgment Ruling In Quiet Title Dispute

RALEIGH, N.C. — A North Carolina trial court erred in granting summary judgment in a quiet title lawsuit brought by a lender against a borrower and her daughter because the subject property was no longer subject to the lender’s lien after an execution sale, at which the daughter purchased the property, a North Carolina Court of Appeals panel ruled in reversing and remanding.
December 16, 2022
Panel Rehearing Sought In Quiet Title Suit Appeal Based On Alleged Oversights

SAN FRANCISCO — The Ninth Circuit U.S. Court of Appeals should rehear an appeal of a federal district court’s grant of summary judgment in a quiet title lawsuit brought by a holder of a deed of trust following a homeowners association’s (HOA) foreclosure on certain property because the panel overlooked pertinent facts and disregarded false testimony in affirming, a limited liability company that purchased the property subject to the deed of trust argues in a petition filed in the Circuit Court.
December 16, 2022
Man’s Malicious Prosecution Suit Against Mortgage Lender Given New Life

OKLAHOMA CITY — A divided Oklahoma Supreme Court ruled that a state trial court erred in dismissing a man’s malicious prosecution lawsuit against his former mortgage lender and a law firm and its attorneys over their handling of an underlying foreclosure action because the lender’s subsequent dismissal of the man from the foreclosure action equated to “a successful termination in plaintiff’s favor in the original action.”
December 15, 2022
None Of Borrowers’ Claims Against Loan Servicer In Foreclosure Suit Pass Muster

RIVERSIDE, Calif. — A federal judge in California issued a tentative opinion in a foreclosure dispute between borrowers and their mortgage loan servicer, opining that he would dismiss each of the borrowers’ claims stemming from the servicer’s alleged failure to properly notify them that it had assumed the servicing responsibilities for their mortgage is warranted because the borrowers failed to sufficiently state a claim for relief in making several of their claims.
December 15, 2022
Reverse Mortgage Trustee Dismissed from FDCPA Suit After Settlement Reached

RICHMOND, Va. — A federal judge in Virginia granted a borrower’s motion to voluntarily dismiss a substitute trustee from a lawsuit stemming from the trustee’s initiation of foreclosure proceedings after the borrower allegedly defaulted on her reverse mortgage after the parties reached the terms of an undisclosed settlement agreement.
December 15, 2022
Wrongful Foreclosure Suit Parties Seek Dismissal In Wake Of Settlement Agreement

SAN DIEGO — In California federal court, parties in a wrongful foreclosure action filed a joint motion to dismiss claims brought by a borrower against her mortgage loan servicer seeking dismissal of all claims brought in the action after the parties reached the terms of a settlement agreement (Pia McAdams v. Nationstar Mortgage LLC, No. 20-2202, S.D. Calif.).
December 15, 2022
Mortgage Debt Fraudster Denied En Banc Rehearing In Appeal Of Conviction

NEW YORK — The Ninth Circuit U.S. Court of Appeals ruled that it will not grant en banc rehearing to a woman who was seeking a new trial on claims of ineffective pretrial counsel after being convicted for her role in orchestrating a fraudulent mortgage debt assistance program (United States v. Jacqueline Graham, No. 20-832, 2nd Cir.).
December 14, 2022
Panel: Mortgage Borrower Has Prudential Standing As Debtor In Possession

NEW ORLEANS — A federal district court did not err in affirming a bankruptcy court’s denial of a debtor mortgage lender’s motion for a determination of secured claim under 11 U.S. Code Section 506(b) in a borrower’s Chapter 11 bankruptcy suit because the lender’s argument that the borrower lacks prudential standing ignores the borrower’s “fiduciary duties as a debtor in possession,” a Fifth Circuit U.S. Court of Appeals panel ruled in affirming.
December 12, 2022
Parties Granted Access To Discovery Documents In Borrower’s Loan Servicing Suit

INDIANAPOLIS — A federal magistrate judge in Indiana granted a motion to intervene and modify the terms of a stipulated protective order in a lawsuit brought by a borrower alleging that mortgage servicer Ocwen Loan Servicing LLC engaged in misconduct in the servicing of her loan, ruling that intervenor plaintiffs in a substantially similar adversary proceeding against Ocwen have shown that common questions of law or fact exist and that Ocwen will not be prejudiced by granting the motion.