Az Federal Judge Strikes at Heart of Nonjudicial Foreclosure, Denies OneWest Motion to Dismiss

For further information or assistance, please call 954-495-9867 or 520-405-1688

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See OWB CASE Buffington v USBank_MTD Denied incl FDCPA 28USDC AZ

CAUTION: NOT ALL JURISDICTIONS ALLOW THE SAME CAUSES OF ACTION. CHECK WITH ATTORNEY WHO IS LICENSED IN THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED.

A Federal Judge upheld a Complaint against OneWest on all counts except fraud. Actually the Judge was doing the homeowner a favor because the burden of proof on fraud is clear and convincing evidence whereas the burden of proof for the rest of the causes of action is only a preponderance (50% + 1) of the evidence. If it is more likely than not that the homeowner is right on the multi-count complaint that has now survived dismissal, the homeowner wins and the damages goes to the jury to jury to decide how much that should be. TRESPASS might also require a higher burden of proof. During the litigation, the homeowner will be able to inquire and potentially receive the necessary facts to support a fraud claim as well.

This is a dramatic reversal — lawsuits just like this one were previously dismissed in Az Federal Court. One of them was dismissed after 14 months of non-action by the court.

COUNT 1 UPHELD FOR NEGLIGENCE PER SE

COUNT 2 UPHELD FOR NEGLIGENT PERFORMANCE OF AN UNDERTAKING

COUNT 3 UPHELD FOR FALSE DOCUMENTS — Plaintiffs suffered false foreclosure recordings on their real property title record, additional damage to their credit reputation, and false late fees and penalties, as well as attorney fees and costs.

COUNT 4 UPHELD FOR PAYMENT/DISCHARGE/ SATISFACTION — based upon receipt of FDIC loss share payments that were intentionally withheld and therefore causing a misrepresentation to borrower as to the the existence of a default or the actual amount of the balance due to the actual creditor.

COUNT 5 UPHELD FOR BREACH OF CONTRACT

COUNT 6 UPHELD FOR BREACH OF CONTRACT

COUNT 7 DISMISSED — FRAUD

COUNT 8 UPHELD FOR TRESPASS TO REAL PROPERTY

COUNT 9 UPHELD FOR FAIR DEBT COLLECTION PRACTICES ACT

9 Responses

  1. Does anyone know how I can find out if New Equity Financial out of Kentucky went Bankrupt. I cannot find anything on them. jsmith5915@msn.com. James

  2. Cool Breeze! Bout damned time!

  3. Deb, Gene is Right again. It will settle. The proof is there, its a matter of the homeowners lack of want to drag it out for years. Remember what my attorney told me yrs back about how the legal expences could exceed the loan. We all know a blogger here who won and was awarded legal fees around $86,000, that’s what you call taking the bull by both horns! They have a GOOD Attorney Neil but you left out a couple details.

  4. There is some sign that the logjam is starting to come apart. It seems the higher courts are giving homeowners a better deal.

  5. I’m still thrilled. Like I said great start awesome great fantastic

  6. Gene the party pooper

  7. Motion to Dismiss denied. Now it must go to trial whereby the homeowner must prove the allegations.

    Can the homeowner afford trial costs? Attorney costs? Deposition costs? Prep for trial costs and then trial costs?

    This will likely not go to trial.

  8. Waited a long time for such a ruling. Awesome start

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