FDCPA Strikes Again: West Virginia Slams Wells Fargo

YARNEY v. OCWEN LOAN SERVICING, LLC, Dist. Court, WD Virginia 2013

SARAH C. YARNEY, Plaintiff,

v.

OCWEN LOAN SERVICING, LLC, ET AL., Defendants.

No. 3:12-cv-00014. United States District Court, W.D. Virginia, Charlottesville Division.

March 8, 2013

MEMORANDUM OPINION

NORMAN K. MOON, District Judge.

The Plaintiff Sarah C. Yarney (“Plaintiff”), pursuant to Fed. R. Civ. P. 56, seeks summary judgment as to liability on all claims asserted in her complaint. Plaintiff alleges that Defendants Wells Fargo Bank N.A., as Trustee for SABR 2008-1 Trust (“Wells Fargo”), and its loan servicer, Ocwen Loan Servicing, LCC (“Ocwen”), attempted to collect on her home mortgage loan after she had settled the debt with Wells Fargo.

III. DISCUSSION

A. Plaintiff’s FDCPA Claims as a Matter of Law

In summary, mortgage servicers are considered debt collectors under the FDCPA if they became servicers after the debt they service fell into default. At the time Ocwen became the servicer on Plaintiff’s home loan, the loan was already in default. Therefore, Ocwen is a debt collector seeking to collect an alleged debt for the purposes of FDCPA liability in this case.[4]

1. Defendants’ Liability under 15 U.S.C. § 1692e(2)(A)

Given the contents of the monthly bills and notices sent to Plaintiff directly, along with the continued calls she received from collection agents, I find that the least sophisticated consumer in Plaintiff’s position could believe that she still owed a debt. Thus, Plaintiff is entitled to summary judgment on her count that Ocwen violated § 1692e(2)(A) of the FDCPA.
2. Defendants’ Liability under 15 U.S.C. § 1692c(a)(2)

Because Plaintiff continued to directly receive bills, statements and phone calls from Ocwen representatives seeking to collect on an alleged debt obligation, despite notice that she was represented by counsel, Plaintiff is entitled to summary judgment that Ocwen violated section 1692c(a)(2).

B. Plaintiff’s Breach of Contract Claim as a Matter of Law

Plaintiff contends that Wells Fargo breached its agreement with Plaintiff, through the action of its agent, Ocwen ….
plaintiff contends, Wells Fargo failed to comply with its obligations, due to the actions of Ocwen, its servicer.
By attempting to collect payments from Plaintiff on behalf of Wells Fargo, Ocwen acted as Wells Fargo’s agent with respect to the original mortgage loan.[10] Further, the undisputed facts in this case demonstrate that Ocwen continued to behave in all respects towards Plaintiff as Wells Fargo’s agent after the March 18, 2011 settlement agreement.[11] While a party may delegate the performance of its duties under a contract, it retains the ultimate obligation to perform….
[11] While Defendants argued during the February 25, 2013 motion hearing that Wells Fargo shouldn’t be held liable for Ocwen’s conduct from now until eternity, Ocwen’s actions at the center of this case constituted collection efforts in connection with the same mortgage loan debt for which Ocwen had been assigned to service, and that Plaintiff and Wells Fargo had attempted to resolve under the March 18, 2011 settlement agreement. Thus, given the facts of this case, Ocwen continued to act as Wells Fargo’s agent with respect to Plaintiff following the settlement agreement.
Due to Ocwen’s subsequent attempts to collect mortgage loan payments from Plaintiff, Wells Fargo neither absolved Plaintiff of her possible deficiency nor properly accepted the deed in lieu of foreclosure.
. . .
“… and thus, due to the actions of its servicer, Plaintiff is entitled to summary judgment that Wells Fargo breached the March 18, 2011 contract agreement.
IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for partial summary judgment is granted. This case is scheduled for a jury trial on April 9, 2013, at 9:30 a.m. in Charlottesville, VA, at which time Plaintiff will have the opportunity to testify in regards to any damages she may be entitled to in this matter.[12] An appropriate order accompanies this memorandum opinion

 

BANK AMNESTY AGAIN: Leaving Consumers to Fend (Litigate) for Themselves

“To someone who lost his house to mortgage servicer incompetence or malfeasance, that’s not restitution. It’s an insult. “The capped pool of cash payments is wholly inadequate in light of the scale of the harm,” says Alys Cohen, staff attorney for the National Consumer Law Center.”   Adam Levin, abcnews.com

Editor’s Analysis: In case after case across the country it is readily apparent that there complete strangers making claims on mortgages, foreclosing, evicting and even collecting “Trial Payments” while they intend to do nothing other than Foreclose — because that is where the money is and because it is only through a foreclosure that they cap the losses and pass them onto investors despite having received large scale payments of insurance and other hedges.

The Banks have it their way despite the obvious unconscionable, illegal, immoral and unethical breach of trust between consumer and bank and between banks.

Whether it is the Chase WAMU deal, or the BOA countrywide deal, or the Indy-mac One West deal, the facts are in — we don’t need to theorize anymore — the banks are NOT the creditors, they cannot shows proof of loss, proof of payment or any financial transaction that would entitle them to enforce an invalid note or foreclose on an invalid, unperfected mortgage lien.

But the institutionalization of hypocrisy and deviant behavior on the part of the Banks has left us with “settlements” that settle nothing, leaving millions of homeowners who lost their homes to entities that received a windfall from the foreclosure process and the windfall from dual tracking “modification” reviews that were a pure sham designed only to get the homeowner in the deepest hole possible so that foreclosure would become inevitable.

At our members conference this Wednesday, we will talk about what is getting traction in the modification of mortgages and what is getting traction in the litigation of mortgage disputes.

The important thing to remember that is that the MONEY never came from ANY of the parties in the sham securitization chain starting with the originator. While there are exceptions — like World Savings — the truth defeats further claims regarding the Wachovia acquisition and then the Wells Fargo acquisition of Wachovia. Either the assignments were missing or they fabricated and forged.

If you ask yourself why they wouldn’t have had the assignments done all nice and proper which is the way the banking world works when BORROWERS must sign documents, you will feel uncomfortable with Wall Street explanations of volume causing the paperwork confusion. It was the exact same volume that produced millions of “originated” mortgages where the i’s were dotted and T’s were crossed —- that is, where the Borrower had to sign. The banks had no trouble then — it was only when the banks had to sign that there was a problem. Where the securitization participants had to sign was neither disclosed nor drafted nor executed.

The simple reason is that there was nothing to sign. There was no financial transaction where money exchanged hands which is why I am pounding on the point that the lawyers should be aiming at the money rather than the documentation. “For value received” means that value was paid or transferred. When you ask for the wire transfer receipt or cancelled check that shows payment and which would establish proof of loss, you are asking to see the transaction upon which the banks place all their reliance.

Their argument that they don’t need to show the actual transaction is a dodge to protect themselves from showing that the transactions in the bogus securitization scheme were all a sham. Your argument should be simple — they say they lost money and that the homeowners owes it. Let’s see the actual proof that they made the loan, lost the money and have not already been paid. The assignments are not accompanies by actual money exchanging hands which means that the assignment lacked consideration and was therefore an executory contract at best, pending payment.

Then you need to ask yourself why there was no consideration when you know that money was funded from somewhere for a loan to the “benefit” of your client (albeit based upon fraud in the execution and fraud in the inducement including appraisal fraud). YOU must tackle the basic issue in the mind of just about every judge — as long as the money was there at the “closing” of the loan, and the borrower signed the papers, and then defaulted on those promises, what difference does it make whether some OTHER papers were fabricated or even forged.

The fact remains, your client, in the eyes of the Judge, got the loan, agreed to the terms and then defaulted. In our world, when you default on a loan, judgment is entered, foreclosure is completed and eviction, if necessary proceeds. The banks have relied upon this perception for years which considerable success. The reason borrowers often lose in litigation is that they arguing about the wrong thing. As soon as they go after the documentation first they are going down a rabbit hole. It is a tacit admission that the loan was valid, the note is evidence of the loan and the mortgage secures the note. DENY and DISCOVER puts that front and center as an issue of fact in dispute.

By going after the money transactions and requiring proof of payment and proof of loss and asking for the accounting data that shows the loan receivable on the books of an entity, you are striking at the heart of the sham transaction.

If you ask me for a loan for $100 and I say “Sure, just sign this note,” and you go ahead and sign the note, what happens when I don’t give you the $100 loan. The answer, which has caused considerable confusion in the foreclosure defense world is that I can nonetheless sue you (on its face the note LOOKS like a negotiable instrument) , but I can’t win. Because if you deny that I ever completed the loan transaction by funding the loan to you, then I have to prove that I gave you the money. I can’t because I didn’t. My argument that you did receive a loan that day and therefore you owe me the money is a lie. You owe the money to whoever actually gave you the money.

At the closing of these loans originated by nominees with no power to touch the money and whose only source of income was fees, not interest on the loan, the borrower was fooled by the fact that the money showed up for the loan. It never occurred to the borrower to ask any questions since the paperwork, and all the disclosures required by law told him a story about the loan. The borrower could not possibly know that the story told by the documents, the documents he or she signed at closing were all a lie.

The Banks will take the position that everyone was authorized to make representations and act for everyone else — except when it comes to paying down the debts with money received from insurance and the proceeds of credit default swaps, federal bailouts etc. In THAT case the bank says it was not the agent of the investors and had no duty to either the investor or the borrower since the banks were the named insureds — made possible only because they purposefully put the name of a nominee on the note, a nominee on the mortgage (or even two nominees on the mortgage) so that the banks could open up a window of time during which they could claim ownership of the loans despite the fact that they had not funded one dime to originate or purchase any loan.

Thus if go for the money first and THEN show the the fabrication, forgery and perjury in documents, the case makes sense and can be presented to the court without giving one inch of admission that the loan, the note or mortgage were real, valid or enforceable. AND by sending a standard QWR and FDCPA letter, the banks have nowhere to hide. In litigation the motion becomes a petition to enforce the RESPA 6 inquiry and the FDCPA inquiry either through direct order or through discovery.

THEN you force the disclosure of the identity of the creditor who actually has a negative account balance on their books for the loan, directly or indirectly, and seek modification or settlement based upon the facts of the case. HAMP modification is impossible, settlement is impossible without first establishing who could submit a credit bid at auction or who could execute a valid satisfaction and release of the debt.

Latest Bank Amnesty Leaves Consumers Adrift

Fraud Is The Biggest Bubble In History
http://www.ritholtz.com/blog/2013/01/fraud-is-the-biggest-bubble-in-history/

6th Circuit Court of Appeals Rules FDCPA Applies to Foreclosures

OPINION APPLIES TO BOTH JUDICIAL AND NON-JUDICIAL STATES

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EDITOR’S ANALYSIS: The Fair Debt Collection Practices Act (FDCPA) 15 USC Sec 1692, has been treated as “off-limits” in mortgage foreclosure actions. The principal thrust of the action is to protect consumers from unfair practices and to prevent debtors from paying a “collector” and finding out they still owe the money because the “collector” was a sham operation. The opinion of many trial judges based upon some appellate decisions was that the FDCPA expressly excluded foreclosure actions.

In this Opinion, the 6th Circuit Court of Appeals, using common sense and basic rules of statutory construction, came to the opposite opinion and it would appear that the opinion will be followed in most states. As it is, anecdotal evidence from Connecticut and other states suggests that trial judges were questioning the legal theory that foreclosures were not about the collection of money.

“Chase and RACJ fraudulently concealed the fact that Fannie Mae owned the loan, and that the original note was not lost or destroyed and was being held by a custodian for Fannie Mae’s benefit. The complaint named plaintiff Lawrence Glazer as someone possibly having an interest in the Klie property, and RACJ served Glazer with process. Glazer answered and asserted defenses. He also notified RACJ that he disputed the debt and requested verification. RACJ refused to verify the amount of the debt or its true owner.”

DENY AND DISCOVER: It is the failure to verify the very thing that lies at the heart of foreclosure defense, nullification of instrument aimed at the mortgage and note, that makes this opinion so powerful. BY re fusing to verify the true owner or the amount of the debt, RACJ was attempting to get around normal due process — that the charges against the debtor be clearly stated and verified. Allowing violations of the FDCPA under the mistaken notion that foreclosure is not about the collection of money allows the collector to finesse the issue of who owns the loan and how much is due. This opens up discovery against the Master Servicer, Subservicer, investment banker, Trustee of the Trust and the trust itself to determine if the trust even exists.

“we hold that mortgage foreclosure is debt collection under the Act. Lawyers who meet the general definition of a “debt collector” must comply with the FDCPA when engaged in mortgage foreclosure. And a lawyer can satisfy that definition if his principal business purpose is mortgage foreclosure or if he “regularly” performs this function. In this case, the district court held that RACJ was not engaged in debt collection when it sought to foreclose on the Klie property. That decision was erroneous, and the judgment must be reversed.7″

CA Trial Court Upholds Claims for Improper Assignment, Accounting, Unfair Practices

Editor’s Note: In an extremely well-written and well reasoned decision Federal District Court Judge M. James Lorenz denied the Motion to dismiss of US Bank on an alleged WAMU securitization that for the first time recognizes that the securitization scheme could be a sham, with no basis in fact.

Although the Plaintiff chose not to make allegations regarding false origination of loan documents, which I think is important, the rest of the decision breaks the illusion created by the banks and servicers through the use of documents that look good but do not meet the standards of proof required in a foreclosure.

  1. I would suggest that lawyers look at the claim and allegations that the origination documents were false and were procured by fraud.
  2. Since no such allegation was made, the court naturally assumed the loan was validly portrayed in the loan documents and that the note was evidence of the loan transaction, presuming that SBMC actually loaned the money to the Plaintiff, which does not appear to be the case.
  3. This Judge actually read everything and obvious questions in his mind led him to conclude that there were irregularities in the assignment process that could lead to a verdict in favor of the Plaintiff for quiet title, accounting, unfair practices and other claims.
  4. The court recites the fact that the loan was sold to “currently unknown entity or entities.” This implicitly raises the question of whether the loan was in fact actually sold more than once, and if so, to whom, for how much, and raises the issues of whom Plaintiff was to direct her payments and whether the actual creditor was receiving the money that Plaintiff paid.  — a point hammered on, among others, at the Garfield Seminars coming up in Emeryville (San Francisco), 8/25 and Anaheim, 8/29-30. If you really want to understand what went on in the mortgage meltdown and the tactics and strategies that are getting traction in the courts, you are invited to attend. Anaheim has a 1/2 day seminar for homeowners. Call customer service 520-405-1688 to attend.
  5. For the first time, this Court uses the words (attempt to securitize” a loan as opposed to assuming it was done just based upon the paperwork and the presence of the the parties claiming rights through the assignments and securitization.
  6. AFTER the Notice of Sale was recorded, the Plaintiff sent a RESPA 6 Qualified Written request. The defendants used the time-honored defense that this was not a real QWR, but eh court disagreed, stating that the Plaintiff not only requested information but gave her reasons in some details for thinking that something might be wrong.
  7. Plaintiff did not specifically mention that the information requested should come from BOTH the subservicer claiming rights to service the loan and the Master Servicer claiming rights to administer the payments from all parties and the disbursements to those investor lenders that had contributed the money that was used to fund the loan. I would suggest that attorneys be aware of this distinction inasmuch as the subservicer only has a small snapshot of transactions solely between the borrower and the subservicer whereas the the information from the Master Servicer would require a complete set of records on all financial transactions and all documents relating to their claims regarding the loan.
  8. The court carefully applied the law on Motions to Dismiss instead of inserting the opinion of the Judge as to whether the Plaintiff would win stating that “material allegations, even if doubtful in fact, are assumed to be true,” which is another point we have been pounding on since 2007. The court went on to say that it was obligated to accept any claim that was “plausible on its face.”
  9. The primary claim of Plaintiffs was that the Defendants were “not her true creditors and as such have no legal, equitable, or pecuniary right in this debt obligation in the loan,’ which we presume to mean that the court was recognizing the distinction, for the first time, between the legal obligation to pay and the loan documents.
  10. Plaintiff contended that there was not a proper assignment to anyone because the assignment took place after the cutoff date in 2006 (assignment in 2010) and that the person executing the documents, was not a duly constituted authorized signor. The Judge’s decision weighed more heavily that allegation that the assignment was not properly made according to the “trust Document,” thus taking Defendants word for it that a trust was created and existing at the time of the assignment, but also saying in effect that they can’t pick up one end of the stick without picking up the other. The assignment, after the Notice of Default, violated the terms of the trust document thus removing the authority of the trustee or the trust to accept it, which as any reasonable person would know, they wouldn’t want to accept — having been sold on the idea that they were buying performing loans. More on this can be read in “whose Lien Is It Anyway?, which I just published and is available on www.livinglies-store.com
  11. The Court states without any caveats that the failure to assign the loan in the manner and timing set forth in the “trust document” (presumably the Pooling and Servicing Agreement) that the note and Deed of trust are not part of the trust and that therefore the trustee had no basis for asserting ownership, much less the right to enforce.
  12. THEN this Judge uses simple logic and applies existing law: if the assignment was void, then the notices of default, sale, substitution of trustee and any foreclosure would have been totally void.
  13. I would add that lawyers should consider the allegation that none of the transfers were supported by any financial transaction or other consideration because consideration passed at origination from the investors directly tot he borrower, due to the defendants ignoring the provisions of the prospectus and PSA shown to the investor-lender. In discovery what you want is the identity of each entity that ever showed this loan is a loan receivable on any regular business or record or set of accounting forms. It might surprise you that NOBODY has the loan posted as loan receivable and as such, the argument can be made that NOBODY can submit a CREDIT BID at auction even if the auction was otherwise a valid auction.
  14. Next, the Court disagrees with the Defendants that they are not debt collectors and upholds the Plaintiff’s claim for violation of FDCPA. Since she explicitly alleges that US bank is a debt collector, and started collection efforts on 2010, the allegation that the one-year statute of limitation should be applied was rejected by the court. Thus Plaintiff’s claims for violations under FDCPA were upheld.
  15. Plaintiff also added a count under California’s Unfair Competition Law (UCL) which prohibits any unlawful, unfair or fraudulent business act or practice. Section 17200 of Cal. Bus. & Prof. Code. The Court rejected defendants’ arguments that FDCPA did not apply since “Plaintiff alleges that Defendants violated the UCL by collecting payments that they lacked the right to collect, and engaging in unlawful business practices by violating the FDCPA and RESPA.” And under the rules regarding motions to dismiss, her allegations must be taken as absolutely true unless the allegations are clearly frivolous or speculative on their face.
  16. Plaintiff alleged that the Defendants had created a cloud upon her title affecting her in numerous ways including her credit score, ability to refinance etc. Defendants countered that the allegation regarding a cloud on title was speculative. The Judge said this is not speculation, it is fact if other allegations are true regarding the false recording of unauthorized documents based upon an illegal or void assignment.
  17. And lastly, but very importantly, the Court recognizes for the first time, the right of a homeowner to demand an accounting if they can establish facts in their allegations that raise questions regarding the status of the loan, whether she was paying the right people and whether the true creditors were being paid. “Plaintiff alleges facts that allows the Court to draw a reasonable inference that Defendants may be liable for various misconduct alleged. See Iqbal, 129 S. Ct. at 1949.

Here are some significant quotes from the case. Naranjo v SBMC TILA- Accounting -Unfair practices- QWR- m/dismiss –

Judge Lorenzo Decision in Naranjo vs. SBMC Mortgage et al 7-24-12

No allegations regarding false origination of loan documents:

SBMC sold her loan to a currently unknown entity or entities. (FAC ¶ 15.) Plaintiff alleges that these unknown entities and Defendants were involved in an attempt to securitize the loan into the WAMU Mortgage Pass-through Certificates WMALT Series 2006-AR4 Trust (“WAMU Trust”). (Id. ¶ 17.) However, these entities involved in the attempted securitization of the loan “failed to adhere to the requirements of the Trust Agreement

In August 2009, Plaintiff was hospitalized, resulting in unforeseen financial hardship. (FAC ¶ 25.) As a result, she defaulted on her loan. (See id. ¶ 26.)
On May 26, 2010, Defendants recorded an Assignment of Deed of Trust, which states that MERS assigned and transferred to U.S. Bank as trustee for the WAMU Trust under the DOT. (RJN Ex. B.) Colleen Irby executed the Assignment as Officer for MERS. (Id.) On the same day, Defendants also recorded a Substitution of Trustee, which states that the U.S. Bank as trustee, by JP Morgan, as attorney-in-fact substituted its rights under the DOT to the California Reconveyance Company (“CRC”). (RJN Ex. C.) Colleen Irby also executed the Substitution as Officer of “U.S. Bank, National Association as trustee for the WAMU Trust.” (Id.) And again, on the same day, CRC, as trustee, recorded a Notice of Default and Election to Sell. (RJN Ex. D.)
A Notice of Trustee’s sale was recorded, stating that the estimated unpaid balance on the note was $989,468.00 on July 1, 2011. (RJN Ex. E.)
On August 8, 2011, Plaintiff sent JPMorgan a Qualified Written Request (“QWR”) letter in an effort to verify and validate her debt. (FAC ¶ 35 & Ex. C.) In the letter, she requested that JPMorgan provide, among other things, a true and correct copy of the original note and a complete life of the loan transactional history. (Id.) Although JPMorgan acknowledged the QWR within five days of receipt, Plaintiff alleges that it “failed to provide a substantive response.” (Id. ¶ 35.) Specifically, even though the QWR contained the borrow’s name, loan number, and property address, Plaintiff alleges that “JPMorgan’s substantive response concerned the same borrower, but instead supplied information regarding an entirely different loan and property.” (Id.)

The court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact as true and construe them in light most favorable to the nonmoving party. Cedars-Sanai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). Material allegations, even if doubtful in fact, are assumed to be true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the court need not “necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks omitted). In fact, the court does not need to accept any legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009)

the allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Id. Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a `probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

Plaintiff’s primary contention here is that Defendants “are not her true creditors and as such have no legal, equitable, or pecuniary right in this debt obligation” in the loan. (Pl.’s Opp’n 1:5-11.) She contends that her promissory note and DOT were never properly assigned to the WAMU Trust because the entities involved in the attempted transfer failed to adhere to the requirements set forth in the Trust Agreement and thus the note and DOT are not a part of the trust res. (FAC ¶¶ 17, 20.) Defendants moves to dismiss the FAC in its entirety with prejudice.

The vital allegation in this case is the assignment of the loan into the WAMU Trust was not completed by May 30, 2006 as required by the Trust Agreement. This allegation gives rise to a plausible inference that the subsequent assignment, substitution, and notice of default and election to sell may also be improper. Defendants wholly fail to address that issue. (See Defs.’ Mot. 3:16-6:2; Defs.’ Reply 2:13-4:4.) This reason alone is sufficient to deny Defendants’ motion with respect to this issue. [plus the fact that no financial transaction occurred]

Moving on, Defendants’ reliance on Gomes is misguided. In Gomes, the California Court of Appeal held that a plaintiff does not have a right to bring an action to determine a nominee’s authorization to proceed with a nonjudicial foreclosure on behalf of a noteholder. 192 Cal. App. 4th at 1155. The nominee in Gomes was MERS. Id. at 1151. Here, Plaintiff is not seeking such a determination. The role of the nominee is not central to this action as it was in Gomes. Rather, Plaintiff alleges that the transfer of rights to the WAMU Trust is improper, thus Defendants consequently lack the legal right to either collect on the debt or enforce the underlying security interest.

Plaintiff requests that the Court “make a finding and issue appropriate orders stating that none of the named Defendants . . . have any right or interest in Plaintiff’s Note, Deed of Trust, or the Property which authorizes them . . . to collect Plaintiff’s mortgage payments or enforce the terms of the Note or Deed of Trust in any manner whatsoever.” (FAC ¶ 50.) Defendant simplifies this as a request for “a determination of the ownership of [the] Note and Deed of Trust,” which they argue is “addressed in her other causes of action.” (Defs.’ Mot. 6:16-20.) The Court disagrees with Defendants. As discussed above and below, there is an actual controversy that is not superfluous. Therefore, the Court DENIES Defendants’ motion as to Plaintiff’s claim for declaratory relief.

Defendants argue that they are not “debt collectors” within the meaning of the FDCPA. (Defs.’ Mot. 9:13-15.) That argument is predicated on the presumption that all of the legal rights attached to the loan were properly assigned. Plaintiff responds that Defendants are debt collectors because U.S. Bank’s principal purpose is to collect debt and it also attempted to collect payments. (Pl.’s Opp’n 19:23-27.) She explicitly alleges in the FAC that U.S. Bank has attempted to collect her debt obligation and that U.S. Bank is a debt collector. Consequently, Plaintiff sufficiently alleges a claim under the FDCPA.
Defendants also argue that the FDCPA claim is time barred. (Defs.’ Mot. 7:18-27.) A FDCPA claim must be brought “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Defendants contend that the violation occurred when the allegedly false assignment occurred on May 26, 2010. (Defs.’ Mot. 7:22-27.) However, Plaintiff alleges that U.S. Bank violated the FDCPA when it attempted to enforce Plaintiff’s debt obligation and collect mortgage payments when it allegedly had no legal authority to do so. (FAC ¶ 72.) Defendants wholly overlook those allegations in the FAC. Thus, Defendants fail to show that Plaintiff’s FDCPA claim is time barred.
Accordingly, the Court DENIES Defendants’ motion as to Plaintiff’s FDCPA claim.
Defendants argue that Plaintiff’s letter does not constitute a QWR because it requests a list of unsupported demands rather than specific particular errors or omissions in the account along with an explanation from the borrower why she believes an error exists. (Defs.’ Mot. 10:4-13.) However, the letter explains that it “concerns sales and transfers of mortgage servicing rights; deceptive and fraudulent servicing practices to enhance balance sheets; deceptive, abusive, and fraudulent accounting tricks and practices that may have also negatively affected any credit rating, mortgage account and/or the debt or payments that [Plaintiff] may be obligated to.” (FAC Ex. C.) The letter goes on to put JPMorgan on notice of
potential abuses of J.P. Morgan Chase or previous servicing companies or previous servicing companies [that] could have deceptively, wrongfully, unlawfully, and/or illegally: Increased the amounts of monthly payments; Increased the principal balance Ms. Naranjo owes; Increased the escrow payments; Increased the amounts applied and attributed toward interest on this account; Decreased the proper amounts applied and attributed toward the principal on this account; and/or[] Assessed, charged and/or collected fees, expenses and miscellaneous charges Ms. Naranjo is not legally obligated to pay under this mortgage, note and/or deed of trust.
(Id.) Based on the substance of letter, the Court cannot find as a matter of law that the letter is not a QWR.
California’s Unfair Competition Law (“UCL”) prohibits “any unlawful, unfair or fraudulent business act or practice. . . .” Cal. Bus. & Prof. Code § 17200. This cause of action is generally derivative of some other illegal conduct or fraud committed by a defendant. Khoury v. Maly’s of Cal., Inc., 14 Cal. App. 4th 612, 619 (1993). Plaintiff alleges that Defendants violated the UCL by collecting payments that they lacked the right to collect, and engaging in unlawful business practices by violating the FDCPA and RESPA.

Defendants argue that Plaintiff’s allegation regarding a cloud on her title does not constitute an allegation of loss of money or property, and even if Plaintiff were to lose her property, she cannot show it was a result of Defendants’ actions. (Defs.’ Mot. 12:22-13:4.) The Court disagrees. As discussed above, Plaintiff alleges damages resulting from Defendants’ collection of payments that they purportedly did not have the legal right to collect. These injuries are monetary, but also may result in the loss of Plaintiff’s property. Furthermore, these injuries are causally connected to Defendants’ conduct. Thus, Plaintiff has standing to pursue a UCL claim against Defendants.

Plaintiff alleges that Defendants owe a fiduciary duty in their capacities as creditor and mortgage servicer. (FAC ¶ 125.) She pursues this claim on the grounds that Defendants collected payments from her that they had no right to do. Defendants argue that various documents recorded in the Official Records of San Diego County from May 2010 show that Plaintiff fails to allege facts sufficient to state a claim for accounting. (Defs.’ Mot. 16:1-3.) Defendants are mistaken. As discussed above, a fundamental issue in this action is whether Defendants’ rights were properly assigned in accordance with the Trust Agreement in 2006. Plaintiff alleges facts that allows the Court to draw a reasonable inference that Defendants may be liable for various misconduct alleged. See Iqbal, 129 S. Ct. at 1949.

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Editor’s Comment:

Contact: Darrell Blomberg  Darrell@ForeclosureStrategists.com  602-686-7355

Meeting: Tuesday, June 12th, 2012, 7pm to 9pm

Special Guest:

Michael Trailor

Director, Arizona Department of Housing

Director Trailor will join us for this evening’s meeting.  We’ll be discussion principal reductions and servicer opposition to the corrections.  Additionally, we cover such topics as the current programs that are in process and any future programs the Department of Housing is working on.  Other topics will include exploring the difference in the state’s treatment of the Hardest Hit Funds and the Attorneys’ General Settlement Funds.

We meet every week!

Every Tuesday: 7:00pm to 9:00pm. Come early for dinner and socialization. (Food service is also available during meeting.)
Macayo’s Restaurant, 602-264-6141, 4001 N Central Ave, Phoenix, AZ 85012. (east side of Central Ave just south of Indian School Rd.)
COST: $10… and whatever you want to spend on yourself for dinner, helpings are generous so bring an appetite.
Please Bring a Guest!
(NOTE: There is a $2.49 charge for the Happy Hour Buffet unless you at least order a soft drink.)

FACEBOOK PAGE FOR “FORECLOSURE STRATEGIST”

I have set up a Facebook page. (I can’t believe it but it is necessary.) The page can be viewed at www.Facebook.com, look for and “friend” “Foreclosure Strategist.”

I’ll do my best to keep it updated with all of our events.

Please get the word out and send your friends and other homeowners the link.

MEETUP PAGE FOR FORECLOSURE STRATEGISTS:

I have set up a MeetUp page. The page can be viewed at www.MeetUp.com/ForeclosureStrategists. Please get the word out and send your friends and other homeowners the link.

Home Defenders League

The Home Defender’s League supported the Lilly Washington event.  They are building a nationwide coalition to support underwater and distressed homeowners.  Here is a link to their website:
 http://www.homedefendersleague.org/

They have a feature story about Lilly Washington at this link:
 http://www.homedefendersleague.org/2012/06/02/hdl-member-lilly-washington-fights-bofa-for-illegal-eviction-and-trashing-her-sons-purple-heart/

May your opportunities be bountiful and your possibilities unlimited.

“Emissary of Observation”

Darrell Blomberg

602-686-7355

Darrell@ForeclosureStrategists.com

Foreclosure Strategists: Phx. Meeting Tuesday!

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Editor’s Comment:

Contact: Darrell Blomberg  Darrell@ForeclosureStrategists.com  602-686-7355

Meeting: Tuesday, June 5th, 2012, 7pm to 9pm

John Hogan v Long Beach Mortgage Co.

We’ll be reviewing the Arizona Supreme Court decision for the John Hogan v Long Beach Mortgage Co. case.

Affidavits and FDCPA

Two areas gaining importance for homeowners are the effective use of Affidavits and courts’ renewed interest in the Fair Debt Collection Practices Act as it applies to trustees. (FDCPA)  We’ll take a look at these two topics.

Special Guest, Tuesday, June 12, 2012

Michael Trailor

Director, Arizona Department of Housing

Director Trailor will join us for this evening’s meeting.  We’ll be discussion principal reductions and servicer opposition to the corrections.  Additionally, we cover such topics as the current programs that are in process and any future programs the Department of Housing is working on.  Other topics will include exploring the difference in the state’s treatment of the Hardest Hit Funds and the Attorneys’ General Settlement Funds.

We meet every week!

Every Tuesday: 7:00pm to 9:00pm. Come early for dinner and socialization. (Food service is also available during meeting.)
Macayo’s Restaurant, 602-264-6141, 4001 N Central Ave, Phoenix, AZ 85012. (east side of Central Ave just south of Indian School Rd.)
COST: $10… and whatever you want to spend on yourself for dinner, helpings are generous so bring an appetite.
Please Bring a Guest!
(NOTE: There is a $2.49 charge for the Happy Hour Buffet unless you at least order a soft drink.)

FACEBOOK PAGE FOR “FORECLOSURE STRATEGIST”

I have set up a Facebook page. (I can’t believe it but it is necessary.) The page can be viewed at www.Facebook.com, look for and “friend” “Foreclosure Strategist.”

I’ll do my best to keep it updated with all of our events.

Please get the word out and send your friends and other homeowners the link.

MEETUP PAGE FOR FORECLOSURE STRATEGISTS:

I have set up a MeetUp page. The page can be viewed at www.MeetUp.com/ForeclosureStrategists. Please get the word out and send your friends and other homeowners the link.

May your opportunities be bountiful and your possibilities unlimited.

“Emissary of Observation”

Darrell Blomberg

602-686-7355

Darrell@ForeclosureStrategists.com

ID THEFT: Example of one person’s response

Editors’ Note: In response to my post on ID THEFT I received a number of comments and ideas. Here is one example of how someone stuck to the message and forced the issue using ID theft as a defensive tactic as well as preparing for an offensive response.

Are you reading my mind?
Out of the blue in Oct. Got a letter with my mortgage company letterhead stating “welcome to new mortgage company”. Said they changed their name. Separate letter said on Nov 6. stop making payments to them by their name and Nov. 7 start making payments to them by new name.
I know about contracts so I attempted to not contract with new name. It’s been a disaster.

1. No assignment 5 months out, in the Official Real Estate Records.
2. Real Trustee still holds title. I contacted him, but he only represents the beneficiary ‘who has the note and an interest secured in the home”.
3. Checked all three credit reports, 5 months out. Two show old name one show new name all have the same info. I disputed new name in the credit report that had it – stating I didn’t know them.
4. I disputed old name in another credit report since they are no longer exist to force identification of who is updating that report. Got copies of all.
4. Checked SEC filings. Investors bought the first name corporation in 2008. Then on Nov. 6, 2009 they merged the bank into their business. That explains why they said to stop paying one name.
5. Foreclosures under old name on file in Deed of Trust has been without assignment or transfer filings. Using Substitute Trustee. Three problems. Original Trustee still holds title. I already wrote him and know this. Deed of Trust on file has no provision for Substituting the Trustee. By virtue of the ‘merger’ they should have the original documents.
6. Spent 5 months asking them to validate their claim. They send a copy of the Certified copy of my Deed of Trust on file in the public (that does not name them), and a copy of a Certified copy of the Promissory note (that does not name them). Two problems They can’t attach to the Deed of Trust without assignment..name change or not…their name is ‘not’ the named Lender nor beneficiary in the Deed of Trust. And the Promissory Note was made out to a specific entity. You can’t possibly assume that I have to know that when you sell it, they can come up and say ‘pay me’ when the promissory note is supposed to be held by the person you promised to pay. If they sell it, that’s a different agreement between them and the other buyer, but I can’t be forced into their third party agreement as long as I agree to pay you..you stay right there and let me pay you..but don’t force me to pay someone I did not ‘promise to pay’.
7. They’ve hired a law firm (setting up for a substitute trustee situation). I contacted the firm. (not pro bono, not pro se, no attorney..just me and told them I don’t recognize the other company and I have asked them to validate and they respond with stronger demand for money.) Maybe that’s why I got the ‘copies’ I did get from the mortgage company that does not support their claim.
8. Informed the attorney of their violation of FDCPA by forwarding information to another party and by not disclosing the amount attempted to collect is in dispute.
9. I wouldn’t trust an attorney at this time. The United States is in Bankruptcy, China filed a lien for 45 Million dollars in December 2009.
10. Have a copy of a Substitute Trustee sale by this company. They never released the lien on the debtor they foreclosed on after the sale. If they had the papers they could have released the lien.
11. Once you admit there is a contract you can’t use Statue of Frauds which helps me because I have refused to contract and have refused to pay and requested validation of their claim of a debt owed to them.
Thinking seriously about filing SEC complaint and sending the ‘Communications, Notice and Order’ to the named person listed in their SEC filing and a copy of that to the law firm listed with the words “With a copy to” – in their SEC filing
My identity has been stolen by the company. When I establish an account with one firm, that does not give a right to another firm to step up and say I have the account, change the name, change the terms of your initial agreement and start paying me now because I have a ‘new name’. How can you have an account demanding payment when there is no agreement and you are really a new entity, not just a new name?
I’m learning about Statute of Frauds. It would also appear that Deceptive Trade Practices can be proven in this mess. A company who has no contract attaches to your credit report as if you’ve established business agreement with them? They have no definition in your Deed of Trust, yet they can get an attorney to represent their interest in your document and start nonjudicial foreclosure proceedings. If they have the papers it takes to change the name on the credit report, they should have the papers it takes to file an assignment/transfer and change the name on the Deed of Trust.
I’ve not paid them any money, but I have filed FTC and Attorney General complaints. Not sure if I have to pay the 5 months in arrears as Threat, Duress, and Coercion to get some action done by these public resources I’m using to filing the compliant.

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