NEVADA S. CT.: CREDITOR MUST ESTABLISH ITSELF AT MEDIATION OR FACE SANCTIONS

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A number of juicy points here, but the main one I find interesting is that they remanded Wells to the lower court for imposition of sanctions. Why? Because they didn’t produce the documents showing they were the creditor. And they can’t go forward with foreclosure unless they attempt mediation. But they can’t mediate if they are not the creditor.

This case should be used in every state and jurisdiction where it is required that the parties seek modification or mediation. Unless the so-called creditor establishes to the court that it is in fact the creditor and has authority to mediate it is a sham. This case clearly addresses that issue on all fours.

You should note that many judges are now imposing “local rules” that require mediation or HAMP modification to be invoked before they will hear the case so just because it isn’t in the statutes doesn’t mean the rule is not there.

 

27 Responses

  1. @ john gault

    sub escrow is referred to in closing docs, also an allonge in closing docs and looking up LT financials they state only 1 loan was repurchased….ever

    Lt was recently sold to Discover, I guess they are bringing in more players…wonder what they bought?

    thanks for the clarification, i have a hard time keeping up with their shell game

  2. @las vegas – the devil for them in the details of that statement is
    “or repurchase agreement”. What a crock. What this really means is that HLC dba Lending Tree (LT) had a ‘broker agreement’, to which they are referring to as a ‘repurchase agreement’ with CW for CW to underwrite as well as fund the loan. The broker agreements do by and large contain repurchase agreements, like if there is an early default. They refer in the sec report to the broker agreement as a repurchase agreement to disguise the fact that CW funded their loans, usually by wire, directly to the title co.
    If they called it what it is, a broker agreement, it would acknowledge that
    loans were pre-sold to CW who funded it.

    LT could also have had its own warehouse line and funded the loan using it. Only a request or discovery to the title co. or even LT or CW would tell one which was used to fund a particular loan. But, having been in the business,
    I would lay odds CW funded right to title. That’s how it generally works when a loan is “headed” to CW and CW underwrote the file under the provisions of a Broker Agreement. This was going on long before
    securitization became rampant.

    Under the Broker Agreement, CW would underwrite and fund the loan straight to title. If one could show that thru discovery or even some innocuous request to title (but good luck on that these days), it may be determined that LT was not the lender, just the originator of the borrower’s credit profile and the info regarding the collateral, the property. The question here, which is the one time it would be really legitimate, is WHO was the lender? The closing docs show LT, but the loan was underwritten and more significantly funded by CW. Right after the closing, LT executed an endorsement in blank on the note. Back in the old days, pre-MERS, LT would have executed an assignment of the dot to CW, also and it would have been recorded right along with the dot, with the dot being necessarily recorded first. This is why all title commitments were written to show, say.
    “LT it’s successors and or assigns”. Where you might catch them is the hazard insurance. If I remember correctly, CW’s mortgagee clause and NOT LT’s was used from the get-go. But, my memory is getting shot.

    So, again, in this scenario, who was the real lender? Did LT broker the loan to CW as opposed to a sale of the loan? And the only readily available answer might be by way of the hazard insurance and homeowner’s may certainly get info from their own insurance companies.

    I’m newly miffed by LT’s reference to this relationship with CW as a
    “repurchase agreement”. There is no reason to mention a “repurchase agreement” otherwise to the sec. It would be of no concern to the SEC if LT had to repurchase some of ITS OWN loans. It’s entirely superfluous.

    It just does never end.

  3. “LendingTree Loans® -branded loans are funded and closed using proceeds from borrowings under available warehouse lines of credit or repurchase agreements. Substantially all of the loans funded are sold, along with the accompanying loan servicing rights, to investors in the secondary market, generally within 30 days of funding, with the proceeds from such sales being used to repay borrowings under the warehouse lines of credit or repurchase agreements.”

    this is from their 10-12b report filed with sec

    Can this statement help us since our note was originated by home loan center dba lendingtree loans as “lender” on note and was “supposedly” sold to countrywide bank a few weeks after closing

    need help in clarifying my thoughts, thank you

  4. John.

    From Livinglies back in 2009, see the comments

    Holder in due course. I forget the UCC on it, just google search.

    HID course is on not defaulted debt.

    “The original and subsequent transferees are referred to as holders. Holders who take with no notice of defect or default are called “holders in due course,” and take free of many defenses. See §§ 3-305(b).”

    http://livinglies.wordpress.com/2009/02/19/this-is-it-where%E2%80%99s-the-note-who%E2%80%99s-the-holder-enforcement-of-promissory-note-secured-by-real-estate/

  5. @john, i think an action not arising in contract is a roundabout way of saying tort. and i couldn’t agree more about going to court. i’ve suggested that a couple of times here. just seeing the general flow of the process, whether it matches up with you individual claims will help in the long run

  6. @john – you’re referring to an offer of judgment. one basically consents to a judgment in a certain amount, and if the other person refuses and ultimately wins less than the offer, the “winner” may be liable for costs and fees. it depends on local rule, but usually it’s limited to costs, not fees, and i’m not familiar with any kind of trebling clause

  7. @tnharry – giving you something to do today, aren’t we? “an obligation not arising from contract” – couldn’t that be fashioned against the bankster who made a bad claim ,because bankster had an obligation of candor with the court and the opposing party (expounded) ish? This would be an obligation not arising from contract……?

  8. ” NRS 42.005 Exemplary and punitive damages: In general; limitations on amount of award; determination in subsequent proceeding.

    1. Except as otherwise provided in NRS 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. ”

    Most states probably have statutes like this one. I’m not saying it’s always applicable or a court would necessarily apply it to something like the FL case or that it does’t conflict with what tnharry calls the inviolate right to dismiss. But it’s something to consider and that appears to depend on the meaning of ” in an action for the breach of an obligation not arising from contract”. I am not sure just how a breach of an obligation occurs in the first place if there is no contract giving rise to the obligation. This appears to be some kind of default law in the absence of a contract, but I still don’t get that.

  9. Hey, that reminds me. Information is always good. One thing you can do to help educate yourself is get thee to a court where these actions are heard. Pack a lunch and stick around. Sometimes you can find the
    “calendar” online for the court for a particular day. Try to pick a day when foreclosures (state courts) or motions for relief from stay (bk court) are heard. It’s not boring – it’s informative and you have a right to be there.

  10. @tnharry – okay, here’s one for you. I may have commented about this once. Waaay back when, when I was studying business law, I thought I learned if A sues B, and B, not wanting to litigate or for whatever reason, makes an offer in compromise and A refuses it, (the offer in compromise) and then A loses in the litigation, A stands to pay B 3 x the amount of the compromise offer. Did I dream this? If not, I suppose at its heart it’s to encourage mitigation.

  11. My brother is an attorney, altho he does not and will not practice in this area (I always telling him he’s missing the boat and homeowners need him). I remember two occasions of moment for him. One, when he was taking the bar and two, his first jury trial. He knew what he knew, so instead of praying for answers, he prayed for peace of mind, which apparently he got because he passed the bar and won his case.
    I’m going to say a prayer for peace of mind for that FL attorney. In honor of my 60’s days, I’ll also send him some good cosmic vibes. Let’s hope he knows something to go along with prayers and good wishes.

  12. @tnharry, well, it would be helpful to others here when you see bad advice if you straightened it out. I, for one, if I have ever given a bum steer am not so fragile that I couldn’t take being told I gave a bum steer. And I would appreciate being straightened out, as well, for myself when and if I have done that or if I do it in the future. But more the pt is, it isnt like there’s an elite group of A list attorneys willing to venture forth here or even admit being here.
    Some people here like to rant about the situation or commiserate, and I’m glad there is this place to do that because otherwise it is truly a lonely road.
    But, others are looking for paths to keep their homes or get them back. This is a wonderful site for many people, including me.

    And on this note, I will take back the unconditional endorsement of attorney
    Black (“Hernandez”) in the Houston area and admit I jumped the gun (for anyone who happens to remember). His case did not after all was said and done survive. I, too, have learned things a fatal day late – many. I’m not an attorney, so there’s no guarantee I wouldn’t repeat mistakes. (not that there’s a guarantee attorneys wouldn’t or don’t) Nothing’s rote for lay people. But, having learned the hard way, attorney Black may be up for the challenge next time round. I just hope he didn’t relieve the homeowner of 30k like some jerkies I’ve seen.

  13. tnharry: thanks. While your first sentence answered my question, the rest of your comment will essentially match what will be forthcoming in the Reply from Bank of New York Mellon.

    The FL SC briefs can be found here:
    http://www.floridasupremecourt.org/pub_info/summaries/briefs/11/11-697/

    The DCA decision – which dissent may answer some of your questions – can be found here:
    http://www.4dca.org/opinions/Mar%202011/03-30-11/4D10-378clar.op.pdf

  14. bar complaints and quiet title to start with. but what is the alleged harm to the litigant? even if there was manufactured evidence or fraud, those things did not technically harm the homeowner since the case was dismissed and there was no decision on the merits. if voluntary dismissal was not a right, the result would be that cases would linger and waste the court’s resources and litigants’ money even if the party initiating the case believed it should be dismissed because they were no longer sure of their position relative to the law or the facts. if I sue you and later determine that my position was wrong, then wouldn’t you want me to have the ability to dismiss? now, the whole thing changes if there’s a counterclaim pending. and that’s why so many people here and elsewhere encourage counterclaims. A sues B, B counters against A, even if A dismisses, B’s case lives on and so do all of the exhibits, etc.

  15. Thanks dny, you read my mind. I wanted to ask tnharry to elaborate as well

  16. tnharry: And by “punish,” I mean thru bar complaints, etc. Defendant in initial action was looking for dismissal with prejudice for alleged fraud in the first action.

  17. tnharry: you wrote: “There are other methods of sanction available if one perpetrates a fraud on the court that wouldn’t necessarily require an open case to pursue, so preventing a dismissal isn’t the only method to police these actions.”

    Can you please elaborate on that? Relevant to the discussion might be that, five months after the initial action, the plaintiff merely created a new assignment and brought a new action. While the Appellee argued that Appellant could argue issues as to alleged frauds in the second action (but refused to stipulate to that), Appellant stated that Florida Supreme Court decisional law prohibits raising issues from the prior (closed) action. As to “sanctions,” it depends on what “relief” is sought. Obviously, the “relief sought” wasn’t to simply “punish” the individuals involved.

  18. couldn’t imagine how discussion of nonjudicials in other states would be remotely relevant to a discussion of civil procedure in florida.

    and kickboxer, you may be right, lol

  19. I don’t suppose the abysmal fate of homeowners in nonjudicial states will be mentioned in argument. The fraud gets perpetrated and sails through without judicial scrutiny. So that means no sanctionable fraud? Seems as if us clods in nonjudicial states are veritable second class citizens, otherwise known in medieval times as serfs.

  20. @ tnharry,

    Maybe you need a hobby. LOL

  21. Is that Nieves the same Nieves that posts here sometimes?

    Either way, a shout out of support for Mr. Nieves.

  22. Neil

    I hope you are reading the comments, I have a question for you that I think you have answered before – but I cannot find by searching the site (Partly because you post so much info!).

    I have a loan, servived by BAC Home Loans Servicing (BACHLS). I was sent a letter that this servicing would transfer from BACHLS to Bank of America NA. No problem, they have a right to sell/transfer servicing.

    EXCEPT – My loan went into default 20 days BEFORE the transfer. (I have the letters to show this time line, all from BofA entities).

    SO….Somewhere I remember reading that a Mortgage was not subject to the same requirements/rules of FDCPA as regular debt (credit card debt). In the case of a collections agent who takes on a deliquent credit card debt, the consumer can ask for a complete “proof” of the debt, starting with the original application all the way to the proof of who owns the debt, who has the right to collect, etc..

    And somewhere I remember that the only exception to this rule about Mortgages was if the servicing was transfered after default.

    And if true, that would mean that I can in fact challenge them to show chain of ownership of the debt.

    Is this true? I need your help (or anyone else who can help!) I have about 15 days to send the letter that challenges “the valditiy of the debt”. (there is a line that says I have 30 days to challenge the validity of the debt).

    I hope you are reading the comments – please advise??

    Thank you

  23. Interesting case A Man. The right to a voluntary dismissal has been pretty inviolate historically. I’d like to read those briefs. There are other methods of sanction available if one perpetrates a fraud on the court that wouldn’t necessarily require an open case to pursue, so preventing a dismissal isn’t the only method to police these actions.

  24. yes, harry, another slow news day. Let me see what I can find. Hmmmmmmm…..

    Newcomer to Argue High-Stakes Foreclosure Case Before Fla. Supreme Court

    by Adolfo Pesquera
    Daily Business ReviewJuly 15, 2011

    As a relative novice in the legal profession, Ice Legal senior associate Enrique Nieves III is prepping for his biggest case and his first appearance before the Florida Supreme Court.

    At 31, Nieves is assigned to argue a case that may decide the fate of thousands of mortgage foreclosures similar to his case, Roman Pino v. Bank of New York Mellon.

    The question before the court seems straightforward: Can banks escape fraud claims in foreclosures by simply dropping their case?

    But the ramifications are potentially severe, and with its decision the state’s high court will likely decide what consequences lenders will face for the robo-signing scandal and allegedly fraudulent assignment-of-mortgage documents that has affected thousands of cases.

    The national media swarmed on the issue, and last fall lenders imposed their own moratoriums on new foreclosure filings. The attorneys general in all 50 states launched investigations of lenders.

    In Nieves’ case, the 4th District Court of Appeal ruled Feb. 3 that BNY Mellon legally avoided a claim that it committed a fraud on the court by voluntarily dismissing a foreclosure action against Pino, a Lake Worth, Fla., resident. The claim was dismissed after Pino’s counsel scheduled depositions and asked for an evidentiary hearing to determine whether BNY Mellon used a fraudulent mortgage assignment.

    On appeal is an 8-1 en banc decision saying courts have no authority to rescind voluntary dismissals and that no harm was done. Judge Mark Polen disagreed, saying the allegation of a systemic fraud was the very thing the Supreme Court addressed in its 2010 rule change giving courts greater latitude in sanctioning plaintiffs who make false allegations.

    If the Supreme Court agrees with Polen, a host of homeowners may get a chance to seek sanctions from their lenders. Those are the stakes for Nieves.

    A 2007 graduate of Pennsylvania State University Dickinson School of Law, Nieves was 70th of 177 in his class and vice president of the Minority Law Students Association. He has been an attorney for less than four years and has argued only four appeals, all before district courts of appeal.

    Opposing counsel will be Katherine E. Giddings, an Akerman Senterfitt shareholder in Tallahassee and chair of The Florida Bar’s Rules of Judicial Administration Committee.

    Among Giddings’ prominent cases was her 2008 defense of the Democratic National Committee in the 11th U.S. Circuit Court of Appeals after the DNC refused to seat Florida delegates at the national convention because the Republican-controlled Legislature scheduled its primary too early for Democratic rules.

    “She told me she teaches appellate board certifications for The Bar,” Nieves said.

    He appreciates the irony. His opponent could very well be the lawyer who instructs him when he goes for his appellate law certification, which he doesn’t qualify for yet because he hasn’t had enough cases.

    GETS AT ISSUES

    Nieves has been at the Royal Palm Beach, Fla., law firm for just two years. The Texas transplant was raised in San Antonio, moved to Georgia during high school and made a name for himself on the basketball court.

    “We played basketball together at Collins Hill High School in Suwanee,” said Donnie Davis, an Atlanta schoolteacher, Nieves’ best friend and best man at his wedding in Jamaica last summer.

    “Enrique gave one of the longest best man speeches in history,” Davis said. “He knew a lot about my background, but he edited out a lot of parts, which I appreciated.”

    Davis and Nieves followed each other to Georgia State, where they played for NCAA Basketball Hall of Fame coach Lefty Driesell. A point guard, Nieves took his basketball talents to Coppin State University where he completed an undergraduate degree in science.

    What drew Nieves to Florida after law school was a chance to spend time with a cousin he was close to from his days in San Antonio — Anthony Alabi was an offensive tackle for the Miami Dolphins.

    When Nieves wasn’t catching a football game, he was drafting memoranda, orders and opinions as a staff attorney in Palm Beach Circuit Court.

    “We started the same day,” said Jessica Rodriguez, now a staff attorney for U.S. Magistrate Judge Ann Vitunac.

    Of the half-dozen in the rookie class of 2007 staff attorneys, Rodriguez recalled Nieves as an excellent writer.

    “He’s very good at getting to the issue,” Rodriguez said. “If I was working on something, I could give it to him to proof or edit. He would come back with advice, give me good ideas or guidance on things I may not have thought of. He’s very sharp and kind of thinks outside the box.”

    Nieves thinks he got the bug for appellate work at Penn State. He had to take an appellate practice course his second year, and it turned out to be a natural fit. But he wanted to be in a courtroom, too.

    GOT A SHOT

    The Ice Legal firm was barely a year old when Thomas Ice hired Nieves in July 2009.

    “When we hired him, I was looking for a bankruptcy attorney,” Ice said. “But we were so busy with appeals. I needed someone to step in. I gave him a shot at it, and he showed right away he was excellent.”

    Writing is a skill many attorneys lack, Ice added, noting they tend to get lost in the legalese and the archaic language of 19th century case law. Nieves’ writing style meshed with Ice’s own. And he appreciated Nieves’ experience as a court staff attorney.

    “That’s excellent experience for getting to see the judges in action,” Ice said. “He understands that if you know a judge’s personality, their likes and dislikes, their feelings on certain issues, you can craft your arguments and tailor them to particular judges.”

    Nieves’ first oral argument came in March 2010 before the 3rd District Court of Appeal on a service of process issue.

    He considers his first notable case to be Valcarcel v. Chase Bank dealing with attorney fees, which he won last year in the 4th DCA without argument on the briefs. A Palm Beach circuit judge dismissed the case because of misconduct by a Chase attorney but refused to award attorney fees to Ice Legal.

    Nieves won a reversal. The issue of attorney fees has come up as an appellate issue several times, most recently in a May 18 opinion from the same court when Nieves prevailed against Flagstar Bank and Mortgage Electronic Registration Systems.

    Nothing he’s done to date, however, compares to Pino’s case. Still, Nieves does not lack for confidence. And Ice looks forward to his high court debut.

    “I’d like to see him up there against the big bank with their cadre of attorneys,” Ice said. “It makes a good David versus Goliath picture in my mind. He’s certainly going toe-to-toe against a very experienced, very highly paid lawyer on the other side.”

    On July 1, the Florida Supreme Court granted BNY Mellon’s motion for extension of time. It has until Aug. 4 to answer Nieves’ brief. No date has been set for oral arguments.

  25. Some days I wonder about that as well A Man. My motivation lies somewhere in the middle between honestly trying to help with advice and providing counterpoints in the conversation and the entertainment factor of some of the conversations. I really do want to supply a little help when I can. There’s an awful lot of terrible advice floated in the comments section that can simply cause more harm than good.

  26. Tnharry we need people like you on this site. Devil’s Advocate is a more appropriate word than Jack Ass. My only cureiousity is what is your motivation?

    May G-d Bles Neil Garfield (and his Associates Family and Friends) with a healthy, Prosperous and long life.

    Be Strong and Courageous.

  27. ok, i know i can be a jackass, but i’m baffled. wasn’t this exact story posted on this site by neil on the 11th?

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