Consumer Financial Protection Bureau

The Consumer Financial Protection Bureau recently announced an online sign-up portal for companies to receive complaints submitted to the CFPB regarding the company.

The online sign-up portal is accessible here:

http://www.consumerfinance.gov/company-signup/

The CFPB states: 

Every day, consumers submit complaints to us. Companies can respond to those complaints using a secure website. Sign up to start reviewing and responding to any complaints we have about your company.  After you sign up, we’ll call your point of contact for more detailed information and make sure you have the information you need to respond effectively to your complaints.

The CFPB describes the complaint and response process here:

http://www.consumerfinance.gov/complaint/

of Interest

http://www.stayinmyhome.com/blog/wp-content/uploads/2013/05/Transcript-Wimes-Harris.pdf

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/May/May%2022,%202013/2D12-2030rh.pdf

Standing

McLean v. J.P. Morgan Chase Bank, N.A., 79 So. 3d 170 (Fla. 4th DCA 2012).  

Home Prices Rise

Existing-home sales rose 0.6 percent in April to an annual sales rate of 4.97 million, the highest level since November 2009, the National Association of Realtors reported Wednesday. Economists had expected a 1.6 percent increase to 5.0 million from March’s original report of 4.92 million sales. March sales were adjusted upward to 4.94 million.

The median price of an existing single-family home jumped 11 percent year-over-year to $192,800, the highest since August 2008.

ProSe wins Against BOA!!!

http://www.stayinmyhome.com/blog/wp-content/uploads/2013/05/Order-for-Pro-Se-Homeowner.pdf

In Hillsborough County Case No. 10-CA-20354, Bank of America declared a homeowner in default, then sued for foreclosure.  The homeowner represented himself in court, arguing, essentially, that he was not in default and that BOA had applied payments to his account improperly.

Shapiro, Fishman & Gache, L.L.P was BOA attorney

Magistrates to handle Florida Foreclosure Cases

The Florida Supreme Court just issued this opinion, which amended Fla.R.Civ.P. 1.490 to authorize the use of magistrates (i.e. lawyers who are not judges) to preside over foreclosure hearings.  This sounds like a big change in foreclosure-world, and in some ways I suppose it is.  The prospect of a non-judge deciding a mortgage foreclosure case is certainly a big change for many consumers.
http://www.floridasupremecourt.org/decisions/2013/sc13-684.pdf

Three weeks after checks sent to homeowners as compensation for foreclosure abuses were rejected for insufficient funds, the consulting firm at the center of the mishap erred again: a fresh round of checks was written for the wrong amounts, the New York Times DealBook blog reported today. In recent days, Rust Consulting issued nearly 100,000 checks for less than the homeowners were owed. The mistake potentially cheated consumers out of millions of dollars they were owed under a deal reached between the government and the nation’s biggest banks. Federal regulators ordered Rust to fix its mistake, and Rust said yesterday that it had “corrected the error and plans to mail supplemental checks to affected borrowers as soon as May 17.” It attributed the mistake to a “clerical error.”

: Previously Banned Fees Charged To Consumers Now Permissible For Visa And Mastercard Transactions

In November 2012, the U.S. District Court for the Eastern District of New York preliminarily approved a settlement agreement in the In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation. As a result, merchants may now charge their Visa and MasterCard customers supplemental fees to recover the cost incurred when credit cards are used as the form of payment

http://www.mondaq.com/unitedstates/x/237790/Financial+Services/Previously+Banned+Fees&email_access=on

HARP Update

Refinances through the government's Home Affordable Refinance Program (HARP) remained strong as mortgage rates stayed near record-low levels, according to the Federal Housing Finance Agency's (FHFA) most recent refinance report. In February, 97,738 Fannie Mae and Freddie Mac loans were refinanced under the program, bringing the total to 2.3 million since HARP's April 2009 inception. Underwater borrowers also continued to represent a large share total HARP refinance volume.  http://www.fhfa.gov/

In Nevada, Arizona, and Florida, the share was even greater with underwater borrowers representing 65 percent or more of HARP volume over the first two months of the year. In California and Georgia, the share of HARP refis for underwater borrowers was 58 percent and 50 percent, respectively.

Among the underwater borrowers, 18 percent opted for shorter-term 15-and 20-year mortgages, which build equity faster than traditional 30-year mortgages.  http://www.dsnews.com/articles/harps-expiration-date-extended-for-another-two-years-2013-04-11




HARP, which was set to expire at the end of this year, will live on for two more years after receiving an extension into December 31, 2015.

Acceleration Notice

Florida law required only the bank “substantially comply” with the conditions precedent in paragraph 22,(sometimes paragraph 9) of the mortgage and the letter of acceleration which was sent comported with that standard.  

Verification of Complaint

Florida’s Fifth District Court of Appeal just issued an opinion in U.S. Bank, N.A. v. Wanio-Moore which seems to indicate that anyone can verify a foreclosure complaint consistent with the requirements of Fla.R.Civ.P. 1.110(b).  In fact, that person need not specify his/her position or title with that verification, as a mere signature is sufficient.  In the words of the Fifth District, “the trial court erred in concluding that a foreclosure verification must state must state the signer’s position” and “the rule does not require any information about the signer’s positional authority.” http://www.5dca.org/Opinions/Opin2013/040113/5D12-1746.op.pdf

Florida’s Second District Court of Appeal in Deutsche Bank Nat’l Trust Co. v. Prevratil, where the Second District ruled that Deutsche Bank could satisfy its obligation to verify the foreclosure complaint under Fla.R.Civ.P. 1.110(b) by having its servicer and attorney-in-fact, Select Portfolio Services, sign the verification. http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/March/March%2008,%202013/2D12-2030.pdf

Florida courts have long required some type of evidence – certainly something more than the filing of a complaint – to support a conclusion that one is “likely” to prevail.  See City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So. 2d 750 (Fla. 1st DCA 1994).

What about when the Bank wrongly forecloses?

So you got a Summary Judgment in favor of the Homeowner that the Bank should not have foreclosed- now what?

In the bank’s view, the homeowner can’t resume making normal, monthly mortgage payments – not without paying all of the late charges, attorneys’ fees, and default interest since the alleged default, not to mention the monthly payments that accrued since the last payment was made.

The homeowner’s view, doing that would be ridiculous.  Why should a homeowner who was wrongly declared in default have to pay default interest, late charges, and attorneys’ fees where those charges would have been unnecessary if the bank hadn’t wrongly declared the default

Judge William Levens of Hillsborough County 's  Final Judgment not only denied a foreclosure, but it required the bank to reinstate the mortgage as of the date that payments stopped being accepted.  All default interest, late charges, attorneys’ fees – POOF, GONE.  The homeowner could resume making monthly, mortgage payments today as if the mortgage were never in default. http://pubrec3.hillsclerk.com/oncore/showdetails.aspx?id=16972127&rn=1&pi=0&ref=search

Bank appealed to 2^nd DCA http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/April/April%2017,%202013/2D12-3051.pdf

The Second District makes this ruling, it is binding law for every circuit judge in Florida and affirmed Judge Levens position of putting the parties back in the financial positions they would have been in had the foreclosure not occurred. The appellate court affirmed the judge’s ruling that the mortgage should be reinstated retroactive to the date that the bank wrongly stopped accepting monthly mortgage payments.

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Motion to Dismiss

As long as a motion to dismiss is pending, the homeowner need not file an Answer, and without an Answer in place, the case isn’t “at issue” under Fla.R.Civ.P. 1.440 and can’t be set for trial.  Hence, a motion to dismiss prevents a trial from being set.

On April 22, 2013, Florida’s First District Court of Appeal issued a written opinion in Wells Fargo Bank, N.A. v. Bokatka, Case No. 1D11-3356 (Fla. 1st DCA 2013).  The lower court dismissed the foreclosure suit with prejudice and the First District reversed that ruling.  

The Court stated: In this case, we do not fault the trial judge for dismissing the bank’s initial complaint, which facially created a contradiction between who the bank alleged was the owner of the note (the bank) and whom the attached note and mortgage identified as the owner (Option One). The parties’ attempts to interject or examine materials outside the pleadings, dismissal without prejudice was appropriate simply to allow the bank an opportunity to amend its initial complaint to address this discrepancy and to fortify its allegations and attachments.

Even given this I do not favor Motion to Dismiss unless the plaintiff's error is egregious as they tend to angery the Court.

Motion to Dismiss

As long as the motion to dismiss is pending, the homeowner need not file an Answer, and without an Answer in place, the case isn’t “at issue” under Fla.R.Civ.P. 1.440 and can’t be set for trial.  Hence, a motion to dismiss prevents a trial from being set.

On April 22, 2013, Florida’s First District Court of Appeal issued a written opinion in Wells Fargo Bank, N.A. v. Bokatka, Case No. 1D11-3356 (Fla. 1st DCA 2013).  The lower court dismissed the foreclosure suit with prejudice and the First District reversed that ruling.  

The Court stated: In this case, we do not fault the trial judge for dismissing the bank’s initial complaint, which facially created a contradiction between who the bank alleged was the owner of the note (the bank) and whom the attached note and mortgage identified as the owner (Option One). The parties’ attempts to interject or examine materials outside the pleadings, dismissal without prejudice was appropriate simply to allow the bank an opportunity to amend its initial complaint to address this discrepancy and to fortify its allegations and attachments.