Wednesday, December 22, 2010
My Favorite Holiday Book
The Zombie Night Before Christmas
Why worry about the Grinch when you’ve got ZOMBIES on the attack! Their prey? America’s best-loved Christmas poem. Get ready to have a holly jolly zombie holiday with this monstrously funny mash-up that subverts all that tiresomely good Christmas cheer. Clement C. Moore’s verses are tweaked and twisted, turning a once-cozy fireside read-aloud on its (now brainless) head. To complete the sacrilege: hilarious renderings of zombie stockings (undead legs!) hung by the chimney with care, and St. Nick attempting to repel a full-out, flesh-devouring zombie attack. One thing’s for sure—Santa and his eight tiny reindeer will never be the same!
CALIFORNIA HOMEOWNERS FINDING IT TOUGHER TO OBTAIN ATTORNEY FORECLOSURE ASSISTANCE
In California, where foreclosures are more abundant than in any other state, homeowners trying to win a loan modification have always had a tough time. Now they face yet another obstacle: hiring a lawyer, according to a New York Times report yesterday. Lawyers throughout California say they have no choice but to reject clients because of a new state law that sharply restricts how they can be paid. Under the measure, passed overwhelmingly by the state legislature and backed by the state bar association, lawyers who work on loan modifications cannot receive any money until the work is complete. The bar association says that under the law, clients cannot put retainers in trust accounts. The law, which has few parallels in other states, was devised to eliminate swindles in which modification firms made promises about what their lawyers could do, charged hefty fees and then disappeared. But foreclosure specialists say there has been an unintended consequence: Honest lawyers can no longer afford to assist homeowners who feel helpless before lenders that they see as elusive, unyielding and skilled at losing paperwork. Homeowners whose cases were handled improperly have little way of knowing it, and even if they found out, they would be hard-pressed to challenge a lender without a lawyer. The problem for lawyers is that even a simple modification, in which the loan is restructured so the borrower can afford the monthly payments, is a marathon, putting off their payday for months if not years. If the bank refuses to come to terms, the client may file for bankruptcy, in which case the lawyer will never be paid.
http://www.nytimes.com/2010/12/21/business/21foreclosure.html?_r=1&emc=eta1
http://www.nytimes.com/2010/12/21/business/21foreclosure.html?_r=1&emc=eta1
Is Bankruptcy Right For You ?
Bankruptcy is a process designed to provide a financial “fresh start” to those with burdensome debts. Bankruptcy protects debtors against collections, garnishments, lawsuits, creditor harassment, and in certain cases avoids repossession of vehicles and foreclosure of homes. At the end of the process, bankruptcy results in a discharge, releasing the debtor from personal liability from specific debts, prohibiting creditors from collecting on those debts in the future, and ultimately gives the debtor peace of mind and a clean slate from which to start anew.
While nobody wants to file bankruptcy, it is important to understand that it is not the goal of the bankruptcy code to take away all of your assets, leaving you living in a cardboard box under a bridge. The code has certain exemptions, allowing you to keep assets such as home equity, vehicles, tools of the trade and the like - as well financial assets such as retirement funds.
There are two primary forms of consumer bankruptcy: Chapter 7 (liquidation) and Chapter 13 (reorganization). The decision of whether to file under Chapter 7 or Chapter 13 requires thorough analysis and may vary from case to case.
Bankruptcy is a process designed to provide a financial “fresh start” to those with burdensome debts. Bankruptcy protects debtors against collections, garnishments, lawsuits, creditor harassment, and in certain cases avoids repossession of vehicles and foreclosure of homes. At the end of the process, bankruptcy results in a discharge, releasing the debtor from personal liability from specific debts, prohibiting creditors from collecting on those debts in the future, and ultimately gives the debtor peace of mind and a clean slate from which to start anew.
While nobody wants to file bankruptcy, it is important to understand that it is not the goal of the bankruptcy code to take away all of your assets, leaving you living in a cardboard box under a bridge. The code has certain exemptions, allowing you to keep assets such as home equity, vehicles, tools of the trade and the like - as well financial assets such as retirement funds.
There are two primary forms of consumer bankruptcy: Chapter 7 (liquidation) and Chapter 13 (reorganization). The decision of whether to file under Chapter 7 or Chapter 13 requires thorough analysis and may vary from case to case.
Call (727) 410-2705 for an appointment today!
GSEs' Foreclosures Outnumber Modifications More than 2 to 1 in Q3
For every home loan held by Fannie Mae and Freddie Mac that was modified during the third quarter, 2.3 loans were foreclosed on during the same period. The GSEs initiated foreclosure on 339,000 home mortgages during the July to September timeframe. Loan modifications completed in the quarter totaled 146,500, with the majority of those completed through non-HAMP programs. The two companies approved 29,500 short sales during the third quarter.
http://www.fhfa.gov/
http://www.fhfa.gov/
In a Sign of Foreclosure Flaws, Suits Claim Break-Ins by Banks
In an era when millions of homes have received foreclosure notices nationwide, lawsuits detailing bank break-ins keep surfacing, and in the wake of the scandal involving shoddy, sometimes illegal paperwork that has buffeted the nation's biggest banks in recent months, critics say that these situations reinforce their claims that the foreclosure process is fundamentally flawed, the New York Times reported today. Identifying the number of homeowners who were locked out illegally is difficult, but banks and their representatives insist that these situations represent just a tiny percentage of foreclosures. Many of the incidents that have become public appear to have been caused by confusion over whether a house is abandoned, in which case a bank may have the right to break in and make sure the property is secure. Some of the cases appear to be mistakes involving homeowners who were up to date on their mortgages—or had paid off their homes—but who still became bank targets. More common are cases in which a homeowner was behind on payments, perhaps trying to work out a modification, when bank crews changed the locks. Banks and their contractors insist that the number of mistakes is minuscule given the hundreds of thousands of new foreclosure cases filed each month.
http://www.nytimes.com/2010/12/22/business/22lockout.html?_r=2&hp
http://www.nytimes.com/2010/12/22/business/22lockout.html?_r=2&hp
Tuesday, December 21, 2010
Strategic Renting
The Sum Of All Eviction Fears
in From The Orb > Blog View
by John Clapp on Thursday 16 December 2010
BLOG VIEW: While scanning mortgage headlines the other morning, I was stopped in my tracks by one particularly eye-grabbing claim: "Families Exchange Homes to Stop Foreclosure."
Immediately, I recalled a story that made the rounds last summer. You might remember the one: While cleaning out their home, a family facing foreclosure found a highly valuable Superman comic book - Action Comics No. 1. That comic - apparently a collector's dream item - was later auctioned for $436,000, leading to a bevy of "Man Of Steel Saves The Day" headlines (but, sadly, no "Faster than an affidavit notarization, more powerful than a foreclosure locomotive on a dual track" ledes).
"But what's all this about swapping homes?" I asked myself as I dug into the press release.
As it turns out, the release was touting a new (and free) service being offered by an entity known as Home Lease Exchange LLC. In addition to boasting offices in Phoenix and San Jose, Calif., Home Lease Exchange appears to be the creative force behind the ForceYourLenderToModify.com - a domain name that doesn't exactly conjure up thoughts of compromise, good-faith negotiating, etc.
Here's how Home Lease Exchange's new service works: A borrower whose foreclosure is drawing near leases - under very generous terms - his or her home to another borrower who (a) lives nearby and (b) is also facing foreclosure. The long-term lease will deter buyers at trustee sales, leaving the servicer and/or bank to deal with the REO and its tenants, Home Lease Exchange explains.
According to the release, this plan "creates amazing leverage for homeowners with their lenders, because under President Obama's Helping Families Save Their Homes Act, tenants have the right to stay in their homes through the term of their lease, as long as the lease is entered into before complete title to the property is transferred."
The Helping Families Save Their Homes Act, which passed in May 2009, included the Protecting Tenants at Foreclosure Act (PTFA). Created in response to the rare but nonetheless unfair situation where a tenant is kicked out of his home on little notice because his landlord stopped paying the mortgage, the PTFA was designed to give tenants some breathing room between learning of his landlord's foreclosure and securing new living accommodations. Under the PTFA, servicers must abide by the terms of bona-fide leases or, where no such lease exists, provide a 90-day grace period for tenants.
The PTFA was immediately met by trepidation on the part of servicers and eviction specialists. Giving servicers cause for concern were the legislation's vague language, questionable cutoff points and definition of bona-fide leases.
For months following the PTFA's passage, eviction-themed webinars and industry panel sessions dealt with worst-case scenarios, such as the dreaded 10-year verbal lease entered into between a borrower and his brother. The PTFA, well-intentioned though it was, clearly put servicers in a precarious spot.
Making things more difficult was a PTFA amendment included in this year's financial reform legislation that essentially allows borrowers and tenants to enter into leases up until the point at which complete title to a property is transferred to a successor entity.
"Therefore, the Dodd-Frank Act opens the door wider than before to potential fraudulent leases or tenancies, under which straw-man tenants or others are used as a strategy to significantly delay the REO owner from recovering possession of the property," Larry R, Rothenberg, a partner at Weltman, Weinberg & Reis Co. LPA, wrote at the time. "'Strategic renting may now join 'strategic default' as a term in our lexicon."
Perhaps to the surprise of much of the industry, abuse of the PTFA has been limited to one-off events, eviction attorneys told me as recently as last week. Yes, suspicious leases come up now and then, they say, but by and large, the issue of fraudulent leases hasn't been nearly as bad as was originally feared.
Will Home Lease Exchange be the galvanizing force that turns eviction departments on their heads?
- John Clapp, editor, Servicing Management
in From The Orb > Blog View
by John Clapp on Thursday 16 December 2010
BLOG VIEW: While scanning mortgage headlines the other morning, I was stopped in my tracks by one particularly eye-grabbing claim: "Families Exchange Homes to Stop Foreclosure."
Immediately, I recalled a story that made the rounds last summer. You might remember the one: While cleaning out their home, a family facing foreclosure found a highly valuable Superman comic book - Action Comics No. 1. That comic - apparently a collector's dream item - was later auctioned for $436,000, leading to a bevy of "Man Of Steel Saves The Day" headlines (but, sadly, no "Faster than an affidavit notarization, more powerful than a foreclosure locomotive on a dual track" ledes).
"But what's all this about swapping homes?" I asked myself as I dug into the press release.
As it turns out, the release was touting a new (and free) service being offered by an entity known as Home Lease Exchange LLC. In addition to boasting offices in Phoenix and San Jose, Calif., Home Lease Exchange appears to be the creative force behind the ForceYourLenderToModify.com - a domain name that doesn't exactly conjure up thoughts of compromise, good-faith negotiating, etc.
Here's how Home Lease Exchange's new service works: A borrower whose foreclosure is drawing near leases - under very generous terms - his or her home to another borrower who (a) lives nearby and (b) is also facing foreclosure. The long-term lease will deter buyers at trustee sales, leaving the servicer and/or bank to deal with the REO and its tenants, Home Lease Exchange explains.
According to the release, this plan "creates amazing leverage for homeowners with their lenders, because under President Obama's Helping Families Save Their Homes Act, tenants have the right to stay in their homes through the term of their lease, as long as the lease is entered into before complete title to the property is transferred."
The Helping Families Save Their Homes Act, which passed in May 2009, included the Protecting Tenants at Foreclosure Act (PTFA). Created in response to the rare but nonetheless unfair situation where a tenant is kicked out of his home on little notice because his landlord stopped paying the mortgage, the PTFA was designed to give tenants some breathing room between learning of his landlord's foreclosure and securing new living accommodations. Under the PTFA, servicers must abide by the terms of bona-fide leases or, where no such lease exists, provide a 90-day grace period for tenants.
The PTFA was immediately met by trepidation on the part of servicers and eviction specialists. Giving servicers cause for concern were the legislation's vague language, questionable cutoff points and definition of bona-fide leases.
For months following the PTFA's passage, eviction-themed webinars and industry panel sessions dealt with worst-case scenarios, such as the dreaded 10-year verbal lease entered into between a borrower and his brother. The PTFA, well-intentioned though it was, clearly put servicers in a precarious spot.
Making things more difficult was a PTFA amendment included in this year's financial reform legislation that essentially allows borrowers and tenants to enter into leases up until the point at which complete title to a property is transferred to a successor entity.
"Therefore, the Dodd-Frank Act opens the door wider than before to potential fraudulent leases or tenancies, under which straw-man tenants or others are used as a strategy to significantly delay the REO owner from recovering possession of the property," Larry R, Rothenberg, a partner at Weltman, Weinberg & Reis Co. LPA, wrote at the time. "'Strategic renting may now join 'strategic default' as a term in our lexicon."
Perhaps to the surprise of much of the industry, abuse of the PTFA has been limited to one-off events, eviction attorneys told me as recently as last week. Yes, suspicious leases come up now and then, they say, but by and large, the issue of fraudulent leases hasn't been nearly as bad as was originally feared.
Will Home Lease Exchange be the galvanizing force that turns eviction departments on their heads?
- John Clapp, editor, Servicing Management
Counseling Improves Mod Success, Nearly Doubles Payment Reductions
NeighborWorks America is the administrator of the National Foreclosure Mitigation Counseling (NFMC) Program, which was implemented by Congress in January 2008. Based on a new report that analyzed the NFMC program in its first two years, through December 2009, the nonprofit group found that the odds of curing a foreclosure is 1.7 times greater for a homeowner who works with an NFMC counselor than for a homeowner who doesn’t receive counseling.
The analysis also revealed that homeowners who obtain a mortgage modification through the NFMC program lower their mortgage payments by an average of $555 per
month, compared to savings of just $288 per month for homeowners who don’t work with an NFMC program counselor. NeighborWorks says the national counseling program has helped individual homeowners save more than $6,000 annually.
In addition, the re-default rate for homeowners counseled through the NFMC program was better than that for homeowners who didn’t receive counseling. The NFMC report estimates that 36 percent of counseled homeowners who received a default-curing mortgage modification became serious delinquent again after eight months, compared to 49 percent of homeowners who received no program counseling.
http://www.dsnews.com/articles/counseling-improves-mod-success-nearly-doubles-payment-reductions-2010-12-20
The analysis also revealed that homeowners who obtain a mortgage modification through the NFMC program lower their mortgage payments by an average of $555 per
month, compared to savings of just $288 per month for homeowners who don’t work with an NFMC program counselor. NeighborWorks says the national counseling program has helped individual homeowners save more than $6,000 annually.
In addition, the re-default rate for homeowners counseled through the NFMC program was better than that for homeowners who didn’t receive counseling. The NFMC report estimates that 36 percent of counseled homeowners who received a default-curing mortgage modification became serious delinquent again after eight months, compared to 49 percent of homeowners who received no program counseling.
http://www.dsnews.com/articles/counseling-improves-mod-success-nearly-doubles-payment-reductions-2010-12-20
NJ Judge Stops Foreclosures
http://www.bloomberg.com/news/print/2010-12-20/bank-of-america-lenders-subject-to-new-jersey-court-order.html
Bank of America Corp., JPMorgan Chase & Co. and four other mortgage lenders and service providers face a possible suspension of foreclosures in New Jersey by Jan. 19 under a judge's order
Bank of America Corp., JPMorgan Chase & Co. and four other mortgage lenders and service providers face a possible suspension of foreclosures in New Jersey by Jan. 19 under a judge's order
Monday, December 20, 2010
Bankruptcy: Doomsday- NO - Salvation
The advantage of bankruptcy is that foreclosures, evictions, repossession, garnishment of wages or Social Security payments, utility shut-offs and collections calls stop. If a person waits too long to file, a legal judgment might eliminate options for saving an asset.
Do not wait until the car is on the verge of repossession or two days before the home is foreclosed.
Do not wait until the car is on the verge of repossession or two days before the home is foreclosed.
Bankruptcy Court More Effective Than Loan Modification Efforts
Homeowners are finding that obtaining a loan modification even with an attorney’s assistance is costly, lengthy and only 50% successful. Filing for bankruptcy has become a viable option for consumers earning an income but facing foreclosure.
Helping a client file for Chapter 13 bankruptcy and putting together a plan allowing the homeowner to catch up on mortgage arrears beats the loan modification process which “has no teeth.”
http://www.post-gazette.com/pg/10354/1111554-499.stm
http://www.maxbankruptcybootcamp.com/why-hamp-should-be-of-interest-to-boot-campers
Helping a client file for Chapter 13 bankruptcy and putting together a plan allowing the homeowner to catch up on mortgage arrears beats the loan modification process which “has no teeth.”
http://www.post-gazette.com/pg/10354/1111554-499.stm
http://www.maxbankruptcybootcamp.com/why-hamp-should-be-of-interest-to-boot-campers
Freddie Mac Extends Foreclosure Protection for Service Members Through 2011
For Immediate Release
December 17, 2010
Contact: corprel@freddiemac.com
or (703) 903-3933 (703) 903-3933
McLean, VA – Freddie Mac (OTC: FMCC) today instructed its servicers to delay initiating foreclosure for at least nine months for financially troubled service members who are released from active duty through the end of 2011 and have Freddie Mac-owned mortgages. Freddie Mac is one of the nation’s largest investors in conforming, conventional mortgages.
News Facts
Freddie Mac’s decision to extend the nine-month foreclosure stay will give lenders more time to work with service members that are having difficulty paying their mortgage.
Freddie Mac is making this protection a requirement for servicing our mortgages although its original authorization in the Housing and Economic Recovery Act of 2008 (HERA) expires on December 31, 2010.
The nine-month stay was originally authorized for service members under amendments to the Service members Civil Relief Act (SCRA) included in HERA.
News Quotes
“Our military make sacrifices every day to protect our homes and families,” said Anthony Renzi, Executive Vice President of Single Family Portfolio Management at Freddie Mac. “This small act will protect financially troubled service members when they return from active duty by giving them more time to work with their lender to stay in their home.”
Freddie Mac was established by Congress in 1970 to provide liquidity, stability and affordability to the nation’s residential mortgage markets. Freddie Mac supports communities across the nation by providing mortgage capital to lenders. Over the years, Freddie Mac has made home possible for one in six homebuyers and more than five million renters.
http://www.bizjournals.com/washington/news/2010/12/17/freddie-mac-extends-foreclosure.html#ixzz18epkcylp
December 17, 2010
Contact: corprel@freddiemac.com
or (703) 903-3933 (703) 903-3933
McLean, VA – Freddie Mac (OTC: FMCC) today instructed its servicers to delay initiating foreclosure for at least nine months for financially troubled service members who are released from active duty through the end of 2011 and have Freddie Mac-owned mortgages. Freddie Mac is one of the nation’s largest investors in conforming, conventional mortgages.
News Facts
Freddie Mac’s decision to extend the nine-month foreclosure stay will give lenders more time to work with service members that are having difficulty paying their mortgage.
Freddie Mac is making this protection a requirement for servicing our mortgages although its original authorization in the Housing and Economic Recovery Act of 2008 (HERA) expires on December 31, 2010.
The nine-month stay was originally authorized for service members under amendments to the Service members Civil Relief Act (SCRA) included in HERA.
News Quotes
“Our military make sacrifices every day to protect our homes and families,” said Anthony Renzi, Executive Vice President of Single Family Portfolio Management at Freddie Mac. “This small act will protect financially troubled service members when they return from active duty by giving them more time to work with their lender to stay in their home.”
Freddie Mac was established by Congress in 1970 to provide liquidity, stability and affordability to the nation’s residential mortgage markets. Freddie Mac supports communities across the nation by providing mortgage capital to lenders. Over the years, Freddie Mac has made home possible for one in six homebuyers and more than five million renters.
http://www.bizjournals.com/washington/news/2010/12/17/freddie-mac-extends-foreclosure.html#ixzz18epkcylp
In Re Kemp
In re: Kemp
A claim filed by a mortgage servicer would be disallowed when that creditor did not have possession of the note and the note was not endorsed to the creditor at the time the claim was filed.
****************************
In the Matter of John T. Kemp, Debtor.
John T. Kemp, Plaintiff,
v.
Countrywide Home Loans, Inc., Defendant.
Case No. 08-18700-JHW, Adversary No. 08-2448.
United States Bankruptcy Court, D. New Jersey.
November 16, 2010.
Bruce H. Levitt, Esq. Levitt & Slafkes, PC, South Orange, New Jersey, Counsel for the Debtor.
Harold Kaplan, Esq. Dori L. Scovish, Esq. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, West Orange, New Jersey, Counsel for the Defendant.
391 B.R. 262 (2008)
In the matter of John T. KEMP, Debtor.
No. 08-18700/JHW.
United States Bankruptcy Court, D. New Jersey.
July 17, 2008.
263*263 Steven N. Taieb, Esq., Mt. Laurel, NJ, for the Debtor.
A claim filed by a mortgage servicer would be disallowed when that creditor did not have possession of the note and the note was not endorsed to the creditor at the time the claim was filed.
****************************
In the Matter of John T. Kemp, Debtor.
John T. Kemp, Plaintiff,
v.
Countrywide Home Loans, Inc., Defendant.
Case No. 08-18700-JHW, Adversary No. 08-2448.
United States Bankruptcy Court, D. New Jersey.
November 16, 2010.
Bruce H. Levitt, Esq. Levitt & Slafkes, PC, South Orange, New Jersey, Counsel for the Debtor.
Harold Kaplan, Esq. Dori L. Scovish, Esq. Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, West Orange, New Jersey, Counsel for the Defendant.
391 B.R. 262 (2008)
In the matter of John T. KEMP, Debtor.
No. 08-18700/JHW.
United States Bankruptcy Court, D. New Jersey.
July 17, 2008.
263*263 Steven N. Taieb, Esq., Mt. Laurel, NJ, for the Debtor.
Bad Credit Car Loans
The following advice to consumers seeking a bad credit car loans before the end of the year:
• Know the information contained in each of your credit reports as well as the individual credit score for each one
• Plan on coming into a bad credit car loan with at least 10 percent down in cash or actual trade equity
• Keep the term of the loan as short as possible
• Buy a compact or midsize car and put off purchase what you really want until after you’ve reestablished your car credit.
• Know the information contained in each of your credit reports as well as the individual credit score for each one
• Plan on coming into a bad credit car loan with at least 10 percent down in cash or actual trade equity
• Keep the term of the loan as short as possible
• Buy a compact or midsize car and put off purchase what you really want until after you’ve reestablished your car credit.
Cal App Confirms UCC Overrides Common Law, Holds Bank Not Required to Prove It Was Free from Negligence
The California Appellate Court, Fourth District, recently ruled in favor of a bank in a lawsuit arising from a check cashing scheme, confirming that the Uniform Commercial Code (“UCC”) overrides inconsistent principles of state common law, and did not require the bank to prove it was free from negligence.
A copy of the opinion is available at: http://www.courtinfo.ca.gov/opinions/documents/E049170A.pdf
Chino Commercial Bank, N.A. (“Chino”) brought an action against Brian Peters and Marylin Charlnoes for breach of contract and fraud. Peters and Charlnoes maintained a checking account with Chino through their small construction business, Faux Themes Inc. (“Faux”). In March of last year, Peters entered into a business arrangement with a man he met on the internet, whereby the man would send Peters checks to deposit into Faux’s account with Chino and Peters would then wire the funds to a bank account in Hong Kong. Peters would retain a fifteen percent fee for this service.
Overall, Peters wired just under half a million dollars to Hong Kong, but the checks he deposited with Chino were ultimately dishonored as forgeries. Chino then brought an action against Peters and Charlnoes to recover the funds overdrafted from Faux’s account, seeking to attach property of Peters and Charlnoes under a common law contract theory. The trial court found in Chino’s favor, placing the burden of proving any negligence by Chino in accepting the altered checks or wiring the funds on Peters and Charlnoes.
Peters and Charlnoes appealed the trial court’s ruling, arguing that Chino should have been required to prove it was free from negligence under the traditional principles of California common law that govern contracts. The Appellate Court rejected the appeal, explaining that California’s enactment of the UCC preempted any inconsistent common law principles. It then discussed Chino’s potential liability under the relevant UCC provisions for (1) accepting the altered checks; and (2) wiring the funds as directed by Peters.
Concerning Chino’s acceptance of the altered checks, the Appellate Court looked to the UCC’s chargeback provisions to determine that Chino could, in fact, be liable for charging the amounts of the dishonored checks back to Faux’s account if it failed to exercise ordinary care in accepting the altered checks. However, the Appellate Court found that Chino presented uncontradicted evidence that it used ordinary care, and that Chino was therefore entitled to charge the funds back to Faux’s account. Specifically, the Appellate Court relied on evidence that Chino’s employees (1) looked for irregularities on the face of the altered checks without finding any; and (2) considered whether the amounts of the checks were consistent with deposits to other companies owned and operated by Peters at the same address as Faux.
Concerning Chino’s wiring of the funds as directed by Peters, the Appellate Court looked to Article 4A governing funds transfers. Noting that Article 4A specifically limits the liability of banks in connection with the transfer of funds to that created under its express provisions, the Appellate Court held that negligence is not an element of the article’s general obligation of good faith, and nothing in the current version of Article 4A would otherwise create liability for a bank negligently accepting a duly authorized wire transfer.
A copy of the opinion is available at: http://www.courtinfo.ca.gov/opinions/documents/E049170A.pdf
Chino Commercial Bank, N.A. (“Chino”) brought an action against Brian Peters and Marylin Charlnoes for breach of contract and fraud. Peters and Charlnoes maintained a checking account with Chino through their small construction business, Faux Themes Inc. (“Faux”). In March of last year, Peters entered into a business arrangement with a man he met on the internet, whereby the man would send Peters checks to deposit into Faux’s account with Chino and Peters would then wire the funds to a bank account in Hong Kong. Peters would retain a fifteen percent fee for this service.
Overall, Peters wired just under half a million dollars to Hong Kong, but the checks he deposited with Chino were ultimately dishonored as forgeries. Chino then brought an action against Peters and Charlnoes to recover the funds overdrafted from Faux’s account, seeking to attach property of Peters and Charlnoes under a common law contract theory. The trial court found in Chino’s favor, placing the burden of proving any negligence by Chino in accepting the altered checks or wiring the funds on Peters and Charlnoes.
Peters and Charlnoes appealed the trial court’s ruling, arguing that Chino should have been required to prove it was free from negligence under the traditional principles of California common law that govern contracts. The Appellate Court rejected the appeal, explaining that California’s enactment of the UCC preempted any inconsistent common law principles. It then discussed Chino’s potential liability under the relevant UCC provisions for (1) accepting the altered checks; and (2) wiring the funds as directed by Peters.
Concerning Chino’s acceptance of the altered checks, the Appellate Court looked to the UCC’s chargeback provisions to determine that Chino could, in fact, be liable for charging the amounts of the dishonored checks back to Faux’s account if it failed to exercise ordinary care in accepting the altered checks. However, the Appellate Court found that Chino presented uncontradicted evidence that it used ordinary care, and that Chino was therefore entitled to charge the funds back to Faux’s account. Specifically, the Appellate Court relied on evidence that Chino’s employees (1) looked for irregularities on the face of the altered checks without finding any; and (2) considered whether the amounts of the checks were consistent with deposits to other companies owned and operated by Peters at the same address as Faux.
Concerning Chino’s wiring of the funds as directed by Peters, the Appellate Court looked to Article 4A governing funds transfers. Noting that Article 4A specifically limits the liability of banks in connection with the transfer of funds to that created under its express provisions, the Appellate Court held that negligence is not an element of the article’s general obligation of good faith, and nothing in the current version of Article 4A would otherwise create liability for a bank negligently accepting a duly authorized wire transfer.
New Rules for Gift Cards
New Federal Reserve rules provide important protections when you purchase or use gift cards. Here are some key changes that apply to gift cards sold on or after August 22, 2010:
Covered by the new rules
Store gift cards, which can be used only at a particular store or group of stores, such as a book store or clothing retailer.
Gift cards with a MasterCard, Visa, American Express, or Discover brand logo. These cards generally can be used wherever the brand is accepted. (Not all cards with a brand logo are covered; see "Other prepaid cards" below for exceptions.)
New protections
Limits on expiration dates. The money on your gift card will be good for at least five years from the date the card is purchased. Any money that might be added to the card at a later date must also be good for at least five years.
Replacement cards. If your gift card has an expiration date you still may be able to use unspent money that is left on the card after the card expires. For example, the card may expire in five years but the money may not expire for seven. If your card expires and there is unspent money, you can request a replacement card at no charge. Check your card to see if expiration dates apply.
Fees disclosed. All fees must be clearly disclosed on the gift card or its packaging.
Limits on fees. Gift card fees typically are subtracted from the money on the card. Under the new rules, many gift card fees are limited. Generally, fees can be charged if
you haven't used your card for at least one year, and
you are only charged one fee per month.
These restrictions apply to fees such as:
-dormancy or inactivity fees for not using your card,
-fees for using your card (sometimes called usage fees),
-fees for adding money to your card, and maintenance fees.
You can still be charged a fee to purchase the card and certain other fees, such as a fee to replace a lost or stolen card. Make sure you read the card disclosure carefully to know what fees your card may have.
Other prepaid cards
These new rules apply only to gift cards, which are just one type of prepaid card. The new rules do not cover other types of prepaid cards, such as:
Reloadable prepaid cards that are not intended for gift-giving purposes. For example, a reloadable prepaid card with a MasterCard, Visa, American Express, or Discover brand logo that is intended to be used like a checking account substitute is not covered.
Cards that are given as a reward or as part of a promotion. For example, a free $15 gift card given to you by a store if you purchase merchandise or services of $100 or more may have fees or an expiration date of one year rather than five years. Regardless, you must be clearly informed of any expiration dates or fees for these cards.
http://www.federalreserve.gov/consumerinfo/wyntk_giftcards.htm
Covered by the new rules
Store gift cards, which can be used only at a particular store or group of stores, such as a book store or clothing retailer.
Gift cards with a MasterCard, Visa, American Express, or Discover brand logo. These cards generally can be used wherever the brand is accepted. (Not all cards with a brand logo are covered; see "Other prepaid cards" below for exceptions.)
New protections
Limits on expiration dates. The money on your gift card will be good for at least five years from the date the card is purchased. Any money that might be added to the card at a later date must also be good for at least five years.
Replacement cards. If your gift card has an expiration date you still may be able to use unspent money that is left on the card after the card expires. For example, the card may expire in five years but the money may not expire for seven. If your card expires and there is unspent money, you can request a replacement card at no charge. Check your card to see if expiration dates apply.
Fees disclosed. All fees must be clearly disclosed on the gift card or its packaging.
Limits on fees. Gift card fees typically are subtracted from the money on the card. Under the new rules, many gift card fees are limited. Generally, fees can be charged if
you haven't used your card for at least one year, and
you are only charged one fee per month.
These restrictions apply to fees such as:
-dormancy or inactivity fees for not using your card,
-fees for using your card (sometimes called usage fees),
-fees for adding money to your card, and maintenance fees.
You can still be charged a fee to purchase the card and certain other fees, such as a fee to replace a lost or stolen card. Make sure you read the card disclosure carefully to know what fees your card may have.
Other prepaid cards
These new rules apply only to gift cards, which are just one type of prepaid card. The new rules do not cover other types of prepaid cards, such as:
Reloadable prepaid cards that are not intended for gift-giving purposes. For example, a reloadable prepaid card with a MasterCard, Visa, American Express, or Discover brand logo that is intended to be used like a checking account substitute is not covered.
Cards that are given as a reward or as part of a promotion. For example, a free $15 gift card given to you by a store if you purchase merchandise or services of $100 or more may have fees or an expiration date of one year rather than five years. Regardless, you must be clearly informed of any expiration dates or fees for these cards.
http://www.federalreserve.gov/consumerinfo/wyntk_giftcards.htm
SEC Subpoenas Big Banks' Mortgage Securitization Documents
http://www.dsnews.com/articles/sec-subpoenas-big-banks-mortgage-securitization-documents-2010-12-17
The Securities and Exchange Commission (SEC) is reportedly investigating lenders' procedures for packaging home mortgages into securities bonds for sale to investors. Reuters, citing two sources familiar with the probe, says the SEC sent subpoenas last week to Bank of America, Citigroup, JPMorgan Chase, Goldman Sachs, and Wells Fargo. The subpoenas focus on the earliest stage of the mortgage securitization process, in particular, the role of master servicers.
The Securities and Exchange Commission (SEC) is reportedly investigating lenders' procedures for packaging home mortgages into securities bonds for sale to investors. Reuters, citing two sources familiar with the probe, says the SEC sent subpoenas last week to Bank of America, Citigroup, JPMorgan Chase, Goldman Sachs, and Wells Fargo. The subpoenas focus on the earliest stage of the mortgage securitization process, in particular, the role of master servicers.
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