CAUSES OF ACTION AGAINST ALL OR ANY DEFENDANTS

46 Responses

MARC & GRACE KOVITZ, on May 20, 2017 at 1:02 pm said:

‘*** BORROWER BEWARE **** NEW YORK CITY BANKRUPTCY COURT PROTECTS GMAC MORTGAGE AT THE EXPENSE OF BORROWERS (We lose our home in 90 days).

After discovering on Jan. 2013 (by a fluke) that we were victims of; Appraisal Fraud, Fraud in the Inducement, other mortgage and consumer fraud concealed from us for over ‘NINE YEARS’ by GMAC Mortgage I immediately took the steps and gave notice (in writing and verbally) that I was Voiding our Mortgage Loan and Withholding Further Payment. I then demanded that GMAC Mortgage sit down, address the allegations, and find a resolution. Instead they (and shortly thereafter Ocwen who acquired our loan as a result of the ReseCap/GMAC bankruptcy) ignored my numerous letters, calls, and rejected complaint after complaint with various, local, state, and federal agencies.

Six months later in June 2013 Ocwen Loan Servicing filed for foreclosure in Cook County Illinois Chancery Court. For the past four years my attorney has repelled four different ‘White Glove Law Firms’ attacking our affirmative defenses over and over again, and not responding to issues of fact in order to prevent our day in court before a jury. The judge is notorious for ruling for the banks.

Two months ago Ditech Financial, LLC who purchased our loan from Ocwen files for Summary Judgement yet never answers either our issues of facts and affirmative defenses. As part of their Motion for Summary Judgment they produced a Bankruptcy Court 363 Asset Sale Court Order from back in Feb. 2013 (as part of the ResCap/GMAC Ocwen Assest Purchase Agreement where homes were purchased from GMAC Mortgage for ‘pennies on the dollar’). The Bankruptcy Court Judge completely insulated any Holder of our Note from any claims whatsoever (to include any fraud later discovered). The BK Court Order bared ours and any borrowers lawsuit from going forward.

Our Illinois Judge ignored all our affirmative defenses of; Fraud in the Inducement, Appraisal, Mortgage, and other Illinois Consumer Frauds and disregarded our notice to rescind the loan due to Fraudulent Inducement. She also disregarded over 50 Issues of Fact that were never resolved. Because of the Bankruptcy Court Order she claimed she had no other alternative but to allow the Summary Judgement and mover forward to the Sheriff Sale in 90 days to take our home from us. The reality is (and seems to stick a finger in the eyes of Public Policy) is a mortgage lender can commit fraud and steal from the borrower to enrich themselves, then run to the Bankruptcy Court to be protected from their crime and there’s noting the borrower can do.

We have spent over $40K fighting the banks and don’t have anymore to money to fight (we need to save the last of our savings to afford moving to an apartment).

As a Disable Senior I’m not too happy with my government. Does anyone have any solution, any ideas we can use to overturn the Cook County Illinois Chancery Court Judge who affirmed Ditech Financial, LLC’s Summary Judgment they can offer that I can pass along to my attorney?

Marc and Grace Kovitz
marc@ameritech.net

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Gary, on January 3, 2017 at 8:34 pm said:

I need an attorney firm to sue bank for fraud. Can you refer me right away please? I’m in South Carolina and its over commercial office buildings

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mark patrick seymour republican president elect usa, on March 22, 2016 at 5:55 pm said:

I AM PLANNING ON PUTTING BOTH BIDEN AND OBAMA DIRECTLY INTO FEDERAL PRISON FOR INTERNATIONAL TREASON AGAINST THE UNITED STATES OF AMERICA THEY WILL BOTH SERVE LIFE WITHOUT POSSIBILITY FOR PAROLE MY NAME IS REPUBLICAN PRESIDENT ELECT MARK PATRICK SEYMOUR BECAUSE OF CONGRESS I HAVE BEEN ACTING COMMANDER IN CHIEF SINCE OCT 15TH 2012 TODAY IS MARCH 22ND 2016 THATS OVER THREE YEARS

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James Smith, on June 22, 2015 at 8:36 pm said:

am trying to help someone find their Pooling and Servicing Agreement. The information is below:

M ERS #: 100091805003039211 SIS #: 1-888-679-6377
Date of Assignment: March 6th, 2012
Assignor: MORTGAGE ELECTRONIC REGISTRAT ION SYSTEMS . INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LIMITED, ITS SUCCESSORS AND ASSIGNS at BOX 2026 FLINT Ml 48501 , 1901 E VOORHEES ST STE C., DANVILLE. IL 61834
Assignee : US BANK NATIONAL ASSOCIAT ION, AS TRUSTEE FOR ADJUSTABLE RATE MORTGAGE TRUST 2005-2 , ADJUSTAB LE RATE MORTGAGE-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-2 al 4801 FREDER ICA STREET, OWENSBORO , KY 42301

· Executed By: HUSBAND AND WIFE AS TENANTS BY THE ENTIRETY To : MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR RESOURCE MORTGAGE BANKING, LTD., ITS SUCCESSORS AND ASSIGNS
Date of Mortgage: 12/10/2004 Recorded: 12/20/2004 as Instrument No.: 2004-255773 In the County of Honolulu, State of Hawaii.

Property Address : 82-6291 MANIN! BEACH ROAD, KEALAKEKUA, HI 96750

James Smith: jsmith5915@msn.com or 443 677 2799. Thanks

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Ray Shelton, on April 9, 2014 at 5:34 am said:

US Bank finds another Miami law firm to do their dirty work. Paul Mckenna out of Miami and his young attorney Andrew h Braaksma. Have now submitted forged documents to a Federal Court in Jacksonville Fl. for US bank and we will be holding them responsible for fraud on the court including any damages as debt collectors in our new law suite. Paul McKennas and his law firm as third parties to US Bank are also violating the OCC cease and desist order agreed to by the Board of Directors of US bank and must be held responsible. We will also file a complaint with The US Attorney General and our Florida Attorney general including the FBI and local law enforcement etc. The last attorneys motioned the court to release them of any liabilities we objected and won. If you know you have forged documents that have been submitted by these guys sue them and report them asap

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Jellybeans, on June 11, 2013 at 10:20 am said:

DISCOVERY CAN PROCEED! CLASS ACTION ON PMI -2013

http://www.scribd.com/doc/147166544/RIDDLE-V-BANK-OF-AMERICA-ET-AL-ABOUT-PMI-RESPA-LET-DISCOVERY-BEGIN-APRIL-2013

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Abby in CA, on May 9, 2013 at 12:00 pm said:

VICTORY!! CALIFORNIA HOMEOWNER STOPS A FORECLOSURE USING THE NEW CALIFORNIA HOMEOWNER BILL OF RIGHTS. HIS ATTORNEY CAN COLLECT HIS ATTORNEY FEES FROM THE BANK. BECAUSE SINGH WON THE INJUNCTION–HIS ATTORNEY WILL GET PAID BY THE BANK!! FIND THOSE ATTORNEYS TO HELP YOU IN CALIFORNIA.

http://www.scribd.com/doc/140451108/VICTORY-CALFORNIA-MAN-STOPS-A-FORECLOSURE-USING-THE-NEW-CALIFORNIA-HOMEOWNER-BILL-OF-RIGHTS-HOBR-5-9-2013

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Steven, on October 11, 2012 at 8:46 pm said:

Is anyone familiar with how to accurately fill out the homeowner claim form in the GMAC bankruptcy? Deadline approaching soon.

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ABBY IN CA, on September 18, 2012 at 4:27 pm said:

BIG BIG APPEAL WIN IN CALIFORNIA FOR HOMEOWNER!!

http://www.scribd.com/doc/106302897/BIG-BIG-WIN-ON-APPEAL-IN-CALIFORNIA-FOR-PAM-RAGLAND-IN-RAGLAND-V-U-S-BANK-N-A-SEPT-2012-FORECLOSURE-LOAN-MOD-FORGERY-ON-HER-LOAN-DOCS-ETC

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lvent, on August 5, 2012 at 10:23 pm said:

@simon..I am also in Cook County. I met with Fish…unless you want to sign a HUD contract and agree to comply and conform with the coverup and wave all of your legal rights to sue for fraud and accept a loan mod or a short sale, Fish aint bitin.

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ABBY IN CA, on April 25, 2012 at 11:01 am said:

LITIGATION QUICK REF GUIDE

http://www.scribd.com/doc/91249249/QUICK-REFERENCE-GUIDE

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goi, on April 19, 2012 at 3:28 pm said:

I won my house FREE & CLEAR. Here is HOW I DID IT…!!!

http://www.scribd.com/doc/90184879/I-Won-my-House-FREE-CLEAR-Here-s-HOW

Don’t GO IT ALONE…!!!!

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ABBY IN CA, on March 27, 2012 at 12:07 pm said:

READ JOHNSON’S COMPLAINT WITH EXHIBITS HERE AGAINST HSBC AND BOA–HE SURVIVED THE BANKS’ MOTION TO DISMISS

http://www.scribd.com/doc/86935746/GREGORY-JOHNSON-V-HSBC-BOA-HIS-COMPLAINT-AND-HOW-HE-RESPONDED-TO-BANKS-MOTION-TO-DISMISS-PLUS-EXHIBITS-MARCH-2012-CALIFORNIA-FEDERAL-COURT-SOUTHERN

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Abby in CA, on January 28, 2012 at 12:35 pm said:

Bloomberg
Proposed Mortgage Deal Said to Be Limited to Foreclosures

Lorraine Woellert, ©2012 Bloomberg News

Saturday, January 28, 2012

(Updates with exclusions starting in third paragraph.)

Jan. 27 (Bloomberg) — A proposed multistate settlement to resolve probes of flawed foreclosure practices won’t release banks from criminal liability, according to a person briefed on the talks.

Any final agreement will be narrowly focused to release banks from claims related only to documentation errors and other so-called robo-signing conduct, said the person, who declined to be identified because the talks are ongoing.

U.S. regulators including the Federal Deposit Insurance Corp., Federal Reserve, Securities and Exchange Commission, Consumer Financial Protection Bureau and Department of Housing and Urban Development would be free to pursue cases related to securities fraud, loan origination and other practices, the person said.

Banks wouldn’t be released from tax or fair-lending claims. They also wouldn’t be freed from liability related to Merscorp Inc., a registry for real estate deeds and liens that acts as a proxy for banks that pool and sell mortgages.

Claims by state pension funds, including those related to their purchases of mortgage-backed securities, also wouldn’t be affected by a final settlement, the person said.

Streamline Investigations

In a separate announcement today, U.S. Attorney General Eric Holder said a new multiagency mortgage unit will help streamline investigations into mortgage-backed securities and the subprime lending collapse.

Federal regulators and attorneys general from all 50 states have been investigating foreclosure practices for more than a year after the discovery that banks, faced with a flood of loan defaults, used flawed documents in seizing homes.

Attorneys general disagree over the scope of a final accord, which could be worth $25 billion in aid to homeowners if all states join in. Yesterday, California Attorney General Kamala Harris called the latest proposal “inadequate.”

Banks have used the robo-signing talks to push for a broader release of liability, including protection from claims related to the sale of mortgage-backed securities to investors including pension funds.

Under the draft agreement still being negotiated, banks would get credit for helping borrowers refinance into less- expensive loans and forgiving mortgage debt on homes that have fallen in value. Banks also would agree to improve their foreclosure practices.

Iowa Attorney General Tom Miller said in October that the settlement, under negotiation for since April, wouldn’t prevent state and local officials from pursuing other claims, including those related to packaging mortgages securities.

Harris and others, including New York Attorney General Eric Schneiderman, are conducting their own investigations into bank practices related to mortgage lending and securitization.

The nation’s largest mortgage lenders and servicers, including Bank of America Corp., JPMorgan Chase & Co., Citigroup Inc., Wells Fargo & Co. and Ally Financial Inc., are participating in the negotiations.

–With assistance from David McLaughlin in New York. Editors: Gregory Mott, Maura Reynolds

To contact the reporter on this story: Lorraine Woellert in Washington at lwoellert@bloomberg.net

To contact the editor responsible for this story: Maura Reynolds at mreynolds34@bloomberg.net

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2012/01/27/bloomberg_articlesLYGVL007SXKX01-LYH04.DTL#ixzz1kmcoPQRl

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Sara Chanbors, on August 9, 2011 at 6:57 am said:

Request for public discussion. Though controversial, maybe someone should consider suit against the attorneys who represent the banks based on conspiracy, fraud, etc? Here, it may require a court order as a condition to such a suit, but it can be done with the proper evidence, we believe. It has been done outside of Calif. Why not here? Your thoughts?

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Kim Thomas, on May 25, 2011 at 7:31 pm said:

ForeclosureEvil ForeclosureHamlet
Checking out “Ph.D MARC J. SEIFER HANDWRITING EXPERT on ANDREW HARMON SIGNATUR” on Foreclosure Hamlet: http://ning.it/kCAdcT

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msoliman, on November 27, 2010 at 6:57 am said:

H – E – L – P ! ! ! What is this – – – – – –

RI-MA-CT HOMEOWNERS CALL THE LAW OFFICE OF GEORGE E.BABCOCK ESQUIRE 401-274-1905 FOR HELP ON FORECLOSURE DEFENSE

I don’t know who this Kim Thomas is …but if you need a ride to the airport or shirt off his back….he is the man.

As for his choice in lawyers….
GEORGE E. BABCOCK .

GEORGE E.BABCOCK .. . You are the man and looking forward to hooking up and testifying in court.

I would not want to go up against George ….your that good…..got my vote. Take em out…one by one ! Just Do It!

Wow…what an amazing sunrise we have coming up here …I’ll be back!

M. Soliman
expert.witness@live.com

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msoliman, on November 27, 2010 at 6:57 am said:

H – E – L – P ! ! ! What is this – – – – – –

RI-MA-CT HOMEOWNERS CALL THE LAW OFFICE OF GEORGE E.BABCOCK ESQUIRE 401-274-1905 FOR HELP ON FORECLOSURE DEFENSE

I don’t know who this Kim Thomas is …but if you need a ride to the airport or shirt off his back….he is the man.

As for his choice in lawyers….
GEORGE E. BABCOCK .

GEORGE E.BABCOCK .. . You are the man and looking forward to hooking up and testifying in court.

I would not want to go up against George ….your that good…..got my vote. Take em out…one by one ! Just Do It!

Wowo…what an amazing sunrise we have coming up here …I’ll be back!

M. Soliman
expert.witness@live.com

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msoliman, on November 27, 2010 at 6:48 am said:

Does anyone have any info on case law wherein the homeowner seeks damages for emotional distress and/or where homeowner seeks a discharge of the mortgage by court order? I’m preparing to go pro se

Wow…I am lost here…..Wow! Affirmative Defiances…..Ummmm Wow! Who brought the mental anguish for beliefs and for calims, and your therefore alleging?

Are you delinquent ? …and how far back ….Judge won’t listen to the arguments….(my opinion) ….causes are …?

Your prayer here is for releif….why , I mean …what …. or ….because your hurting?

You need an attorney …really
Please…Do it! Okay ?

expert.witness@live.com

Not a licensed attorney and only a licensed attorney can practice law in your state. Call the State Bar for more information. Not licensed as an attorney and for not for advisement – for info only.

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Sue, on November 20, 2010 at 11:07 am said:

Does anyone have any info on case law wherein the homeowner seeks damages for emotional distress and/or where homeowner seeks a discharge of the mortgage by court order? I’m preparing to go pro se (I’m not as yet a defendant in a foreclosure but it’s coming up on me fast) and I intend to seek damages in excess of the amount of the mortgage and I believe I have an excellent argument for that, having been held hostage by a known predator (American Home Mortgage) for over two years now.

I’m in Massachusetts, but would appreciate any help or leads from anywhere.

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Angella Soileau, on November 2, 2010 at 11:41 am said:

CONTACT THE PRIVATE MORTGAGE INSURER!!!

I have private mortgage insurance on my property and did some digging and questioning to find that the mortgage servicer who fraudulently claimed a default on my property had set up a claim with the private mortgage insurance company even prior to the servicer’s alleged default.

The private mortgage insurance, MGIC, (Mortgage Guaranty Insurance Corporation) had given me this information. I also discovered that this policy not only protects the holder-in-due-course against financial loss in the event of a deficiency recovery, but also PAYS ALL OF THE LEGAL EXPENSES ASSOCIATED WITH THE DEFAULT CLAIM THROUGHOUT THE FORECLOSURE PROCESS!!!

This gives the entities foreclosing on the property limitless resources in trying to steal homeowner’s property. This is especially heinous in non-judicial states (like my state of Texas) where the homeowner is burdened with pursuing legal assistance in saving their home and must bear the financial burden in preventing a wrongful seizure of their property.

I have had enough of the deep pocket games being played by the servicer and servicer’s foreclosure mill, so I decided to send an email to the private mortgage insurer who insures my property.

Here is the email that I sent to them today:

“My property is covered by private mortgage insurance with your company. I am notifying you that the mortgage servicer currently pursuing foreclosure on my property has falsified default information to your company in order to open a claim. I was never in default. The servicer violated RESPA in a disputed escrow matter, as well as breached the terms of the note/deed on behalf of the holder-in-due-course of my note/deed. It has been discovered during the course of this wrongfully alleged default that the servicer who has opened a claim with your company regarding my property does not have legal standing to administer the foreclosure, having no ownership interest or power to administer such from the true holder-in-due-course. The fact that they do not have any ownership interest or legal standing in regard to my property would also preclude their ability to open a claim with your company. I am insisting that MGIC deny the servicer’s claim in regard to my property as well as identify the true and legal holder-in-due-course of my property. The servicer’s claim made to your company is fraudulent. To allow the servicer to continue with this claim would be to implicate your company in fraudulent business dealings.”

If the servicer has wrongfully opened a claim with the private mortgage insurer, then they are committing INSURANCE FRAUD.

The private mortgage insurer has a duty to verify the claim. If they allow the fraudulent claim to continue, then they would be contributing to the homeowner’s wrongful demise and could be held liable by the homeowner…

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KimThomas, on October 24, 2010 at 3:01 pm said:

http://www.projo.com/economy/Fighting_Foreclosure_10-24-10_7FIGCK5_v36.503440.html#

RI-MA-CT HOMEOWNERS CALL THE LAW OFFICE OF
GEORGE E.BABCOCK ESQUIRE 401-274-1905 FOR HELP ON FORECLOSURE DEFENSE.

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B. wRight, on September 28, 2010 at 4:02 am said:

Simon, and anyone else needing legal advice, the following link is for a pro se law course that I am using. It’s helping me understand how to go into court prepared and strong. We are pro se standing against attempted foreclosure in Hawaii by BAC Home Loans Servicing, LP (was Countrywide Home Loans, Inc./ MERS, now BA/MERS unannounced to us).

The course is written by a 26-yr practicing lawyer in Florida, who is also actively working cases against the mortgage fraud. The website also has an active forum where you can ask questions. Frederick Graves, the attorney, also does consults for a fee. He might look at your documents, and you can probably post them on the forum. Hopefully this information is not too late for you.

http://JurisdictionaryLaw.com

Thank you, Neil, for providing the information on this page and this place for people to help where we can, and to sharpen each others swords.

If anyone knows anyone working on a case in Hawaii, please refer my email address LawOfLiberty@gmail.com.

B. wRight

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simon l, on August 24, 2010 at 10:39 pm said:

Here in Cook County, Illinois I filed a pro se federal complaint 16mos ago – it appears on Pacer (88 docket entries so far). Is it against the law for me to make it (only the complaint) available for public viewing here?

I have been unable to find an affordable lawyer who “gets it”.

The first complaint that I want to show my computer friends was dismissed for failure to state with particularity under Rule 9. I was granted leave to file proposed amended in order to state with particularity. I did so, then my proposed amended complaint was rejected for failure to state “short and plain” under Rule 8. Judge giving me one final chance to submit a proposed amended that complies with Rule 8. Leave to file an corrected amended complaint has been granted. May I publish the dismissed complaint and the rejected proposed amended?
I’m trying to see if anyone can figure out what the judge actually wants to see, I can’t see how I can state a claim with particularity with a short and plain statement.

I would like to post them here on Livinglies, in the hopes someone can tell me what’s wrong, or maybe find an attny that can take over on contingency or small payments. Previously, I was recommended to one Darren Fish, Esquire in IL but he never replied to my emails.

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KimThomas, on August 5, 2010 at 8:48 pm said:

WE CAN HELP YOU STAY IN YOUR HOME. POSSIBLY GET PRINCIPAL REDUCTION AND IN SOME CASES INTEREST RATE DEDUCTIONS. THE BANKS MADE A LOT OF MISTAKES IN THE PAPERWORK AND WE OFFER TO FIND THEM.FREE CONSULTATION ON ANY LEGAL MATTER.CALL KIM THOMAS 401-352-5609 or 401-274-1905. WE CAN HELP THE LAW OFFICES OF GEORGE E.BABCOCK …………………………………………………………………………………ESQUIRE. CHECK OUT OUR WEBSITE: http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.babcocklawoffices.com%2F&h=911e4
IF YOU HAVE A MERS WHICH STANDS FOR MORTGAGE ELECTRONIC REGISTRATION SERVICES WHICH WOULD BE IN MOST CASES ON THE 1ST PAGE OF YOUR MORTGAGE PARAGRAPH C OR YOU HAVE A MORTGAGE WITH INDYMAC OR ONE WEST BANK CALL KIM THOMAS OR GEORGE

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icetea, on August 5, 2010 at 12:15 am said:

Here’s a good powerpoint to read

http://www.mortgagebankers.org/files/Conferences/2010/LIRC/LIRC1011Lit1Huo.pdf.

Note that this is just the common view of most banks to litigation and what causes of action they are most prepared for.

As a Pro Se, I have learned that reading appellate decisions about how claims fail is very instructive (even if it isn’t a foreclosure case). What you may soon learn is that you can lose right at the beginning (to borrow from Neil’s admonition to win at the beginning).

• Most pro se litigants know just enough procedure to kill their cases from the get go and even a skilled attorney brought in later can’t fix what was broken.

• Many attorneys write crappy pleadings and were a complete waste of money for their client.

• You have to put in the very long hours at a real law library. Find your state/federal causes of action reference texts and learn the rules of what you have to plead – or should plead – in your complaint or answer.

• Learn about how cases get removed from State to Federal court and what that means to you – especially Twombly pleading standards.

• Learn the procedures of the court you are in. Not just the official statutes but find some books written to get attorneys up to speed on the procedures and terminology.

• Learn to search appeals decisions for your court (this is often available from the web). With a bit of keyword search skill, you can get access to how your state/fed court views the rules for proving various claims or how it views things like recission, Lis Pendens, injuctions etc.

• Evidence, evidence, evidence. Learn your court’s rules and objections. (If you watch Neil’s youtube vids, you might see a classic text on Evidence in the background … hint hint) Some of the books on evidence are massive so you will have to learn about what parts are likely to affect your case.

• Most of all, if you are going to do this Pro Se, you cannot learn everything you need to know from the web. Hit the real books made out of dead trees!

• Whatever you do, don’t mistake a rant against securitization (of which this blog has thousands) as a sufficient basis for your pleadings or motions.

Its way more work than you think. This is also why picking the right attorney with specific experience in this area of litigation – and familiarity with modern foreclosure defense – is critical.

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M.Soliman, on April 30, 2010 at 8:16 am said:

Ultimately, this Court must still determine whether One West obtained the plaintiff’s mortgage “solely for the purpose of facilitating collection of such debt . . …………….” 15 U.S.C. § 1692a(4). ——————————————–

M.Soliman

This is madness and a waste of courts time and parties money. The plaintiff has no idea what to argue…clueless. The transfer of assets is immaterial to the case as Indy Mac was compelled by receiver to transfer all performing assets, while leaving others out to under Government receipt and held by the FDIC and charged the balance (toxicity) to losses.

The interest is solely a certificate and or proffered stock that is valueless.

———————————————————————-
In taking judicial notice of the events surrounding the FDIC’s sale of Indy Mac to One West, this Court cannot find that One West’s sole purpose for purchasing Indy Mac was to facilitate debt collection, including the collection on the plaintiff’s mortgage.

No of course not. Its acquisition was none the less open and notorious (Judicial Notice) whereby the merger was compelled by regulatory and government officials. It was seen as something One West Bank did not want to associate with At All!
————————————————————————-
One west received all deposits of Indy Mac without regard to whether a debt was in default.
Whoa…where is the court coming from here Stop Whoa what is the court saying hear *G*I*B*B*E*R*I*S*H *G*I*B*B*E*R*I*S*H *G*I*B*B*E*R*I*S*H *G*I*B*B*E*R*I*S*H

Thus, One West is not a “debt collector,” and asCasemaker – FED – District Court Opinions – Search – Result Page 11 of 4/20/2010 such, the plaintiff cannot state a FDCPA claim

Agreed. Plaintiffs *G*I*B*B*E*R*I*S*H

OMG this is insane. *G*I*B*B*E*R*I*S*H. The attorney for the Plaintiff had Parties before the right court, perfect timing and positioned to take another step at overcoming lender fraud.

HE BLEW IT NO WAY HE BLEW IT NO WAY! . . . Lawyers, Known what your doing please…Be repsonsible…Please. Stupid! A waste of court time and clients home is lost ….stupid!

Man, this courts Gibberish is upsetting. Junk in and Junk out. I know what I am talking about here…Got it!

M.Soliman
Expert.witness@live.com

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konatina, on April 21, 2010 at 10:23 am said:

Case Recently Decided Gives You insight into District Court Thinking! All this poor plaintiff wanted to do was have Indymac live up to the Court ordered agreement! Padgett v. OneWest Bank, FSB, 041910 WVNDC, 3:10-CV-08
DAVID L. PADGETT, Plaintiff,
v.
ONEWEST BANK, FSB, d/b/a INDYMAC MORTGAGE SERVICES, Defendant.
Civil Action No. 3:10-CV-08
United States District Court, Northern District of West Virginia, Martinsburg
April 19, 2010
MEMORANDUM OPINION AND ORDER
JOIHN PRESTON BAILEY, UNITED STATES DISTRICT JUDGE
Currently pending before the Court are Defendant Onewest Bank, FSB’s Motion to Dismiss [Doc. 11], filed March
15, 2010; Defendant’s Motion to Stay [Doc. 15], filed April 1, 2010; Defendant’s Motion to Strike [Doc. 18], filed April 5,
2010; and Plaintiff’s Motion to Correct [Doc. 19], filed April 5, 2010. Plaintiff responded to the motion to dismiss on
March 29, 2010, and the defendant replied on April 12, 2010. Plaintiff responded to the motion to stay on April 2, 2010,
and the defendant filed no reply. Plaintiff responded to the motion to strike on April 7, 2010, and the defendant filed no
reply. Defendant filed no response to the motion to correct. The Court has reviewed the record and the arguments of the
parties and, for the reasons set out below, concludes that the defendant’s Motion to Dismiss [Doc. 11] should be
GRANTED IN PART and DENIED IN PART, the defendant’s Motion to Stay [Doc. 15] should be DENIED, the defendant’s
Motion to Strike [Doc. 18] should be DENIED, and the plaintiff’s Motion to Correct [Doc. 19] should be GRANTED.
BACKGROUND
I. Factual Allegations
The plaintiff, David L. Padgett, alleges the following facts in the challenged First Amended Complaint [Doc. 9]. On
April 12, 2006, the plaintiff entered into a home mortgage, secured by a deed of trust, with IndyMac Bank, F.S.B.
(“IndyMac”) for the plaintiff’s home located in Martinsburg, West Virginia. ([Doc. 9] at ¶ 8). On December 18, 2007, the
plaintiff filed a Chapter 7 bankruptcy petition, listing IndyMac as a secured creditor. (Id. at ¶ 10). On February 1, 2008,
IndyMac filed a motion in the bankruptcy court seeking relief from the automatic stay so that it could proceed to
foreclose on the plaintiff’s residence. (Id. at ¶ 11). By the end of April 2008, the plaintiff was one month in arrears on his
home mortgage loan. (Id. at ¶ 13).
On April 30, 2008, the parties filed an Agreed Order in the bankruptcy court resolving IndyMac’s motion to lift the
automatic stay. (Id. at ¶ 14). Pursuant to this Agreed Order, the plaintiff’s mortgage was deemed current as of May 1,
2008, and the one payment for which the plaintiff was in arrears was added onto the end of the mortgage. (Id. at ¶¶ 15-
16). The first payment due under the Agreed Order was due in May 2008. (Id. at ¶ 17). The plaintiff made the May 2008
payment in a timely fashion and has made his monthly mortgage payment each month after May 2008, up to and
including the date of the filing of the plaintiff’s First Amended Complaint. (Id. at ¶¶ 18-19).
In March 2009, Defendant OneWest Bank, F.S.B. (“OneWest”) purchased IndyMac, whereupon IndyMac Mortgage
Services (“IndyMac MS”) became a division of OneWest. (Id. at ¶¶ 20-21). On July 16, 2009, OneWest, doing business
as IndyMac MS, sent the plaintiff a letter claiming he was one month behind on his payments. (Id. at ¶ 22). In response,
on July 28, 2009, the plaintiff wrote to OneWest, enclosing a copy of the Agreed Order from his bankruptcy proceeding
and requesting that OneWest supply him with documentation that he nevertheless remained one month behind. (Id. at
¶¶ 24-26). Again, on August 3, 2009, and September 16, 2009, IndyMac MS sent letters to the plaintiff alleging he was
behind on his mortgage payments. (Id. at ¶¶ 28-29).
Casemaker – FED – District Court Opinions – Search – Result Page 1 of 12
http://www.aol.lawriter.net/CaseView.aspx?scd=FED&DocId=2748&Index=D%3a%5cdt… 4/20/2010
On September 30, 2009, the plaintiff, through counsel, wrote to the attorneys who represented IndyMac in
connection with the plaintiff’s bankruptcy proceedings. (Id. at ¶ 31). This letter reminded them of the terms of the
Agreed Order and informed them that the plaintiff was current in his mortgage payments. (Id. at ¶¶ 32-33).
On October 7, 2009, OneWest sent the plaintiff a statement alleging that $1,247.06 was past due on his account.
(Id. at ¶ 35). Again, on November 30, 2009, the plaintiff’s counsel wrote to the attorneys who represented IndyMac in
connection with the plaintiff’s bankruptcy to remind them of the terms of the Agreed Order and inform them that the
plaintiff was current in his mortgage payments. (Id. at ¶¶ 37-39).
On December 4, 2009, OneWest wrote to the plaintiff demanding payment of $186,715.61. (Id. at ¶ 41). In
response, the plaintiff requested verification of the alleged debts. (Id. at ¶ 43). OneWest replied on December 17, 2009,
enclosing a one-year payment history, which showed that the plaintiff had made his monthly payments in a timely
fashion each month and that OneWest had imposed a $15.00 late charge on the plaintiff’s account each month. (Id. at
¶¶ 44-47).
On December 16, 2009, December 18, 2009, January 19, 2010, and January 21, 2010, OneWest either wrote
directly to the plaintiff demanding payment of an alleged one- month arrearage or sent him a statement alleging that
$1,247.06 was past due on his account. (Id. at ¶¶ 48-55). Since this time, OneWest continues to assess monthly late
fees against his account and has informed credit reporting agencies that the plaintiff’s mortgage is delinquent, though
plaintiff alleges he is current on his monthly mortgage payments. (Id. at ¶¶ 56-59).
II. Procedural History
On January 11, 2010, the plaintiff brought suit in the Circuit Court of Berkeley County, West Virginia, asserting
claims against OneWest and IndyMac MS pursuant to state law, including, inter alia, the West Virginia Consumer Credit
and Protection Act, W.Va. Code § 46A-2-122, et seq. (“WVCCPA”). On February 12, 2010, OneWest, noting that it does
business as IndyMac MS, removed the above-styled action to the Northern District of West Virginia on the basis of
diversity jurisdiction [Doc. 4].
On February 18, 2010, OneWest filed a Motion to Dismiss. [Doc. 6]. In its motion, OneWest argued that the
plaintiff failed to state a claim upon which relief can be granted. ([Doc. 6] at 1-3). Specifically, OneWest argued that all
of the plaintiff’s claims for relief were preempted by the Home Owners’ Loan Act of 1933, 12 U.S.C. § 1461, et seq.
(“HOLA”). (Id. at 4).
On February 24, 2010,[1] the plaintiff filed the challenged First Amended Complaint [Doc. 9], which contains eight
counts.[2] Counts I, II, and III arise under the WVCCPA. In Count I, the plaintiff alleges that the letters written by
OneWest violate the unfair debt collection provisions of the WVCCPA. ([Doc. 9] at ¶¶ 60-68). Specifically, the letters
written after September 30, 2009, constitute violations of W.Va. Code § 46A-2-128(e) because OneWest knew as of that
date that the plaintiff was represented by counsel with respect to the debt. (Id. at ¶ 66). Moreover, each of the letters
written after July 15, 2009, is a separate fraudulent, deceptive, or misleading representation of the character, extent, or
amount of OneWest’s claim against the plaintiff, in violation of W.Va. Code § 46A-2-127(e). (Id. at ¶ 67). In Count II, the
plaintiff alleges that each time OneWest charged the plaintiff’s account for late fees, it committed a separate violation of
W.Va. Code § 46A-2-128(d) because the plaintiff’s account was current. (Id. at ¶ 75). In Count III, the plaintiff alleges
that each late fee charge is also a separate unfair and deceptive practice prohibited by W.Va. Code § 46A-6-104. (Id. at
¶ 80).
In Counts IV, V, and VI, the plaintiff alleges defamation, breach of contract, and negligence on the part of
OneWest. (Id. at ¶¶ 82-101). In particular, the plaintiff alleges that OneWest committed common law defamation by
falsely misrepresenting to credit reporting agencies that his mortgage was delinquent when it was, in fact, current. (Id.
at ¶ 82-89). Next, the plaintiff alleges that each of OneWest’s assessments of a late fee after May 1, 2008, is a breach of
the mortgage and deed of trust executed by the plaintiff, as modified by the Agreed Order entered in the plaintiff’s
bankruptcy proceeding. (Id. at ¶ 92). Finally, the plaintiff alleges that OneWest’s false representations to the credit
reporting agencies were also negligent. (Id. at ¶ 100).
Count VII arises under the Real Estate Settlement Practices Act, 12 U.S.C. § 2601, et seq. (“RESPA”). (Id. at ¶¶
102-112). Specifically, the plaintiff alleges that he or his counsel sent three letters to OneWest that constituted qualified
written requests within the meaning of 12 U.S.C. § 2605(e). (Id. at ¶¶ 105-107). According to the plaintiff, OneWest’s
failure to respond to these requests resulted in three separate violations of the RESPA. (Id. at ¶¶ 108-110). First,
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OneWest failed to acknowledge receipt of the requests within 20 days as required by 12 U.S.C. § 2605(e)(1). (Id. at ¶
108). Second, OneWest failed to correct or otherwise respond to any of the requests within 60 days as required by 12
U.S.C. § 2605(e)(2). (Id. at ¶ 109). Third, OneWest failed to protect the plaintiff’s credit rating after receipt of the
requests as required by 12 U.S.C. § 2605(e)(3). (Id. at ¶ 110).
Finally, Count VIII arises under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (Id. at
¶¶ 113-123). In particular, the plaintiff alleges that OneWest’s actions as a “debt collector” constituted three violations of
the FDCPA. (Id. at ¶¶ 119-121). First, each of OneWest’s demands for payments that are not due is a false
representation of the character, amount or legal status of a debt in violation of 15 U.S.C. § 1692e(2)(A). (Id. at ¶ 119).
Second, each of OneWest’s demands for payment of a late fee charge is a false representation of the character, amount,
or legal status of a debt in violation of 15 U.S.C. § 1692e(2)(A). (Id. at ¶ 120). Third, each of OneWest’s demands for
payment of a late fee charge is an unfair or unconscionable practice in violation of 15 U.S.C. § 1692f(a). (Id. at ¶ 121).
On February 26, 2010, in light of the plaintiff’s First Amended Complaint, this Court dismissed without prejudice
OneWest’s Motion to Dismiss [Doc. 6]. [Doc. 10].
On March 15, 2010, OneWest filed the pending Motion to Dismiss [Doc. 11], again arguing that the plaintiff’s state
claims are preempted by the HOLA. ([Doc. 11] at 2-4). Specifically, the plaintiff’s first six counts, as described above, are
preempted by the HOLA because each claim is based upon the imposition of late fees or actions purportedly taken by
OneWest in connection with the servicing of the plaintiff’s mortgage loan. (Id. at 4). Next, OneWest argues that the
plaintiff’s RESPA and FDCPA claims must also be dismissed. (Id. at 4-5). The plaintiff’s RESPA claims fail because he
failed to allege any facts demonstrating actual damages as a result of any alleged violation of RESPA. (Id. at 5). Finally,
the plaintiff’s FDCPA claims fail because OneWest, as mortgagee of the debt, is not a “debt collector” within the meaning
of FDCPA. (Id.).
On March 29, 2010, the plaintiff filed his Memo in Opposition [Doc. 13], contending that none of his claims should
be dismissed. ([Doc. 13] at 1). First, the plaintiff argues that the HOLA does not preempt claims that seek to enforce
mortgage agreements, as do his state law claims. (Id.). Moreover, the plaintiff argues he has alleged sufficient facts to
support his federal law claims. (Id.).
On April 12, 2010, OneWest filed its Reply [Doc. 22], reasserting its argument that both the plaintiff’s state and
federal claims should be dismissed. ([Doc. 22] at 11). According to OneWest, the state law claims are preempted
because they attempt to regulate its servicing of the plaintiff’s loan (Id. at 1-6); the injury required to support his RESPA
claim is inadequately pled (Id. at 6-8); and OneWest is not covered by the FDCPA, as it is a “creditor” not a “debt
collector.” (Id. at 8-11).
In the meantime, the parties filed three other motions, beginning with OneWest’s Motion to Stay [Doc. 15], filed
on April 1, 2010. In its motion, OneWest requests that this Court stay all proceedings pending its ruling on OneWest’s
Motion to Dismiss [Doc.11]. ([Doc. 15] at 3). In support of this request, OneWest cites a high likelihood that all of the
plaintiff’s state claims will be dismissed based upon preemption. ([Doc. 16] at 6-7). In response, the plaintiff argues that
his claims are not preempted because they do not challenge the making or terms of the loan, but instead seek remedies
for OneWest’s breach of the loan agreement. ([Doc. 17] at 1).[3]
Moreover, on April 5, 2010, OneWest filed a Motion to Strike [Doc. 18]. In its motion, OneWest asks this Court to
strike all references to, and all claims asserted against, IndyMac MS. ([Doc. 18] at 2). In support of this request,
OneWest notes that IndyMac MS is a division of OneWest and that any claims asserted against IndyMac MS, as a
separate entity, are redundant and immaterial. (Id.). In response, the plaintiff argues OneWest’s motion is premature
and otherwise inappropriate. ([Doc. 21] at 1). Specifically, the plaintiff asserts the motion is premature because without
discovery there is no factual basis for determining whether the corporate organization of OneWest and IndyMac MS is
such that OneWest is fully liable for all the acts of IndyMac MS. (Id.) Next, the plaintiff contends the motion is
inappropriate because he continues to receive communications from OneWest under the name of IndyMac MS. (Id.).[4]
Finally, also on April 5, 2010, the plaintiff filed a Motion to File a Corrected Memorandum [Doc. 19]. Specifically,
the plaintiff seeks to correct the first sentence of Section IV. B., p. 13, of his Memorandum in Opposition [Doc. 13],
which the plaintiff admits contains an incorrect statement of one of the plaintiff’s claims for relief. ([Doc. 19] at 1).[5]
DISCUSSION
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I. Motion to Dismiss Standard
In assessing a Rule 12(b)(6) motion for failure to state a claim, the court must accept the factual allegations
contained in the complaint as true. Advanced Health-Care Servs., Inc. v. Radford Cmty. Hosp., 910 F.2d 139, 143 (4th
Cir. 1990). “[A] motion to dismiss for failure to state a claim for relief should not be granted unless it appears to a
certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his
claim.” Johnson v. Mueller, 415 F.2d 354 (4th Cir. 1969).
“A complaint need only give ‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’” In re Mills, 287 Fed.Appx. 273, 280 (4th Cir. 2008) (quoting Fed.R.Civ.P. 8(a)(2)). “Specific facts are not
necessary; the statement need only give the defendant fair notice of what the … claim is and the grounds upon which it
rests.” Id. (internal quotations and citations omitted). “[T]he pleading standard Rule 8 announces does not require
detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A
pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertions devoid of further factual enhancements.” Ashcroft v. Iqbal, __ U.S.
__, 129 S.Ct. 1937, 1949 (May 18, 2009)(internal quotations and citations omitted).
II. HOLA Preemption Standards
The HOLA empowers the Office of Thrift Supervision (“OTS”) “to authorize the creation of federal savings and loan
associations, to regulate them, and by its regulations to preempt conflicting state law.” In re Ocwen Loan Servicing, LLC
Mortg. Servicing Litigation, 491 F.3d 638, 642 (7th Cir. 2007); see 12 U.S.C. § 1464. Under this authority, OTS
promulgated a preemption regulation in 12 C.F.R. § 560.2 (the “Regulation”), which is entitled to “no less pre-emptive
effect than federal statutes.” Fidelity Fed. Sav. and Loan Ass’n v. de las Cuesta, 458 U.S. 141, 153 (1982). The
Regulation provides that:
OTS hereby occupies the entire field of lending regulation for federal savings associations. OTS intends to
give federal savings associations maximum flexibility to exercise their lending powers in accordance with a
uniform federal scheme of regulation. Accordingly, federal savings associations may extend credit as
authorized under federal law, including this part, without regard to state laws purporting to regulate or
otherwise affect their credit activities, except to the extent provided in paragraph (c) of this section . . ..
12 C.F.R. § 560.2(a) (emphasis added).
In section 560.2(b), the OTS provided illustrative examples of the types of state laws preempted. Among these
listed examples, preempted state laws “include, without limitation, state laws purporting to impose requirements
regarding”:
(5) Loan-related fees, including without limitation, initial charges, late charges, prepayment penalties,
servicing fees, and overlimit fees;
. . .
(10) Processing, origination, servicing, sale or purchase of, or investment or participation in, mortgages; .
. . 1
2 C.F.R. § 560.2(b)(5) and (10).
Moreover, the OTS expressly provided, in section 560.2(c), categories of state laws that “are not preempted to the
extent that they only incidentally affect the lending operations of Federal savings associations or are otherwise consistent
with the purposes of paragraph (a) . . ..” 12 C.F.R. § 560.2(c). The state laws generally excepted from preemption by
the HOLA are:
(1) Contract and commercial law;
(2) Real property law;
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(3) Homestead laws specified in 12 U.S.C. 1462a(f);
(4) Tort law;
(5) Criminal law; and
(6) Any other law that OTS, upon review, finds:
(i) Furthers a vital state interest; and
(ii) Either has only an incidental effect on lending operations or is not otherwise contrary to
the purposes expressed in paragraph (a) . . ..
Id.
The OTS has explained, however, that the preemption provision in section 560.2(a) is not intended “to preempt
basic state laws such as state uniform commercial codes and state laws governing real property, contracts, torts, and
crimes.” OTS, Lending and Investment, 61 Fed.Reg. 50951, 50966 (Sept. 30, 1996). “[T]he purpose of [the exemptions
in] paragraph (c) is to preserve the traditional infrastructure of basic state laws that undergird commercial transactions,
not to open the door to state regulation of lending by federal savings associations.” Id. The OTS has also outlined the
proper analysis for courts to employ when confronted with interpretive questions under section 560.2(a):
When analyzing the status of state laws under [the Regulation], the first step will be to determine
whether the type of law in question is listed in paragraph (b). If so, the analysis will end there; the law is
preempted. If the law is not covered by paragraph (b), the next question is whether the law affects
lending. If it does, then, in accordance with paragraph (a), the presumption arises that the law is
preempted. This presumption can be reversed only if the law can clearly be shown to fit within the
confines of paragraph (c). For these purposes, paragraph (c) is intended to be interpreted narrowly. Any
doubt should be resolved in favor of preemption.
Id. at 50966-67. See also Casey v. F.D.I.C., 583 F.3d 586, 593 (8th Cir. 2009); Silvas v. E*TRADE Mortgage Corp., 514
F.3d 1001, 1005 (9th Cir. 2008).
In Jones v. Home Loan Inv., FSB, No. 2:09-0537, 2010 WL 1238437, at *4 (S.D. W.Va. Mar. 22, 2010), the
Honorable Judge John T. Copenhaver, Jr. concisely summarized the process of applying OTS’s analysis:
If a court performs the first step of the OTS’s analysis and concludes that the state law bases for plaintiff’s
claims fall within section 560.2(b), plaintiff’s claims are preempted by HOLA. Alternatively, if the court
concludes that the state law claim falls outside of section 560.2(b), it must then determine whether
plaintiff’s claims clearly fit within the confines of permissible state law claims laid out in section 560.2(c).
In order to fit within these confines, the court must be satisfied that the state law involved has, at most,
only an incidental effect on lending operations.
Next, noting that the Fourth Circuit has “yet to consider the application of section 560(c) to state law claims,”
Judge Copenhaver considered the “as applied” analysis articulated by the Eighth and Ninth Circuits. Id. In particular,
those Circuits have interpreted section 560.2 as meaning that any “state law that either on its face or as applied imposes
requirements regarding the examples listed in § 560.2(b) is preempted.” Casey, 583 F.3d at 595; Silvas, 514 F.3d at
1006. Under this framework, the “as applied” rule exempts from preemption only those generally applicable state laws
that fit within the confines of section 560.2(c) without more than incidentally affecting lending.
Finally, Judge Copenhaver considered the Seventh Circuit’s approach, which led to the same result without
expressly relying upon the “as applied” rule articulated in the Eighth and Ninth Circuits. Jones, 2010 WL 1238437, at *5.
Specifically, in considering what state laws are exempted from HOLA preemption, the Seventh Circuit balanced the OTS’s
authority over the federal savings and loan banks with the ability of consumers to recover under the HOLA’s statutory
structure. See In re Ocwen Loan Servicing, LLC Mortg. Servicing Litigation, 491 F.3d 638, 643 (7th Cir. 2007). In so
doing, the Ocwen Court noted that the OTS has very limited power to oversee disagreements between the banks and
their consumers. Id. (citing to “How to Resolve a Consumer Complaint” 1-2, http://www.OTS.treas.gov/docs/4/480924.pdf).
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More specifically, the Ocwen Court emphasized that inasmuch as the HOLA provides no private right of action to
consumers, consumers have little recourse in disputes with federal savings banks outside of those generally applicable
state laws exempted from preemption in section 560.2(c). Id. (citing Burns Int’l Inc. v. Western Savings & Loan Ass’n,
978 F.2d 533, 535-37 (9th Cir. 1992)). “Against this background of limited remedial authority,” the court in Ocwen “read
subsection (c) to mean that OTS’s assertion of plenary regulatory authority does not deprive persons harmed by the
wrongful acts of savings and loans associations of their basic state common-law-type remedies.” Id. Thus, while the
HOLA and the OTS preempt any attempt at state regulation of federal savings banks, the OTS allows states to maintain
their state- law-based causes of action to protect their citizens.[6] Id.
In providing support for its conclusion, the Ocwen Court quoted at length from an OTS opinion letter similarly
relied upon by the courts in Casey and Silvas. Id. at 644 (quoting OTS Opinion Letter P-96-14, Dec. 24, 1996, at 5). In
this letter, the OTS’s chief counsel addressed whether the HOLA preempted Indiana’s generally-applicable state law
prohibiting deceptive acts and practices in the course of commerce. Id. Noting the OTS’s indication that it does not
intend to preempt state laws establishing basic norms undergirding commercial transactions, the chief counsel
determined that the Indiana state law fell within the traditional “contract and commercial law” category properly
excluded from preemption under section 560.2(c). In reaching this determination, the chief counsel emphasized that the
impact the law had on lending appeared to be only incidental to the primary purpose of the statute and there was no
indication that the law was in conflict with the purpose of the HOLA’s preemption provision or the OTS’s regulation of
federal savings associations. Id. Thus, the chief counsel found that the Indiana deceptive acts and practices law was not
preempted by federal law. Id.
Based upon its analysis of the HOLA and the OTS’s position as stated in the chief counsel’s letter, the Ocwen Court
held that section 560.2(c) preserves those state laws of general applicability only incidentally affecting the banking and
lending activities of a federal savings association. Ocwen 491 F.3d at 644-45; see also State Farm Bank v. Reardon, 539
F.3d 336, 344 (6th Cir. 2008). Finding several generally applicable state statutes preempted because they fell within the
section 560.2(b) illustrative examples, the Ocwen Court clarified that “[n]ot all state statutes that might be invoked
against a federal [savings and loan bank] are preempted, any more than all common law doctrines are.” Ocwen, 491
F.3d at 646. While the court in Ocwen concluded that traditional common law actions of fraud, breach of contract,
defamation and slander of title generally avoid HOLA preemption, the result depends on the particular nature of the
claims as alleged by the plaintiff. Id. (“The twentieth [claim] alleges fraud, and does not appear to be preempted,
though this could depend on the nature of the fraud, which is unexplained.”).
In concluding his review of Casey, Silvas, and Ocwen, Judge Copenhaver noted the one commonality among the
cases was that each court “considered the specific nature of each state law claim to determine whether an allegation is a
state-based cause of action or an attempt at regulation preempted by section 560.2(b).” See also Watkins v. Wells Fargo
Home Mortg., 631 F.Supp.2d 776, 782 (S.D. W.Va. 2008) (“Whatever the claim, a court must look at the underlying
allegations proffered in support of the claim and ask on which side of the Ocwen court’s ledger they fall.”).
III. Analysis
OneWest moves to dismiss the plaintiff’s Complaint, including both the state and federal law claims stated therein.
Specifically, OneWest contends the plaintiff’s state law claims are preempted by the HOLA, and his federal law claims are
either inadequately or inaccurately pled. This Court will now consider each claim in turn.
A. State Law Claims
In Counts I, II, and III, the plaintiff asserts that the letters written by OneWest violated the WVCCPA, as did the
late fees it imposed on the plaintiff’s account. In Count V, the plaintiff also asserts that OneWest’s imposition of late fees
breached the mortgage and deed of trust executed by the plaintiff, as modified by the Agreed Order entered in the
plaintiff’s bankruptcy proceeding. Finally, in Counts IV and VI, the plaintiff asserts that OneWest committed negligence
and defamed him by informing credit reporting agencies that his mortgage was delinquent.
In considering whether any of these claims are preempted by the HOLA, the Court will first determine whether a
claim matches one of the examples provided in section 560.2(b). If so, the claim is preempted. Alternatively, the Court
will determine whether a claim fits within the permissible state law claims laid out in section 560.2(c), by analyzing
whether the state law has, at most, only an incidental effect on lending.
1. WVCCPA Claims
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i. Letters Sent Directly to Plaintiff
In Count I, the plaintiff claims that the letters written after September 30, 2009, constituted violations of W.Va.
Code § 46A-2-128(e), which generally prohibits a debt collector from communicating with a consumer whenever it
“appears” or “could be easily ascertained” that he or she has attorney representation. In support of this claim, the
plaintiff alleges that OneWest knew as of September 30, 2009, that the plaintiff was represented by counsel with respect
to the debt because his counsel wrote a letter that day to the attorneys who represented IndyMac in connection with the
plaintiff’s bankruptcy.
In its motion, OneWest argues that the HOLA preempts this claim because restricting to whom OneWest may
communicate regarding its mortgage loans and any defaults under it implicates the “[p]rocessing, origination, servicing,
sale or purchase of, or investment or participation in, mortgages” by federal savings banks. 12 C.F.R. § 560.2(b)(10).
Specifically, OneWest argues, such a restriction interferes with its “servicing” of mortgage loans. In support of this
argument, OneWest cites Murillo v. Aurora Loan Services, LLC, No. C 09-00504 JW, 2009 WL 2160579 at *11 (N.D. Cal.
July 17, 2009), which found that a California law requiring a particular declaration be included in a notice of default was
preempted pursuant to section 560.2(b)(10) because it “concern[ed] the processing and servicing of Plaintiffs’
mortgage.” In response, the plaintiff argues that this claim is not preempted because the statute merely requires
OneWest to send the notices of default to another address. The statute does not regulate the frequency of OneWest’s
communications nor the manner in which the loan is serviced. Further, unlike the California statute in Murillo, this West
Virginia statute does not regulate the content of the notice. Thus, the plaintiff argues, Murillo is inapplicable to the
instant case.
In reply, OneWest outlines the burden this particular state provision would place on its servicing of loans:
First, the federal savings bank must establish guidelines or otherwise train its employees in how to
comprehend and then note for the file when it “appears” that there is attorney representation. It must
then develop procedures for changing its communications process in connection with servicing the
mortgage loan, including it [sic] procedures for sending out monthly statements and all other
correspondence as well as making telephonic communications. If the federal savings bank has not been
given the attorney’s name and address, the federal savings bank must then take steps to try and
ascertain this information because it may not, under the WVCCPA, communicate directly with a debtor . . .
if the federal savings bank can “easily ascertain” such information. Finally, the federal savings bank runs
the risk of falling afoul of the WVCCPA if it does not expend the amount of effort to ascertain such
information that a trier of fact might consider to fall within the scope of “easily ascertaining” such
information.
([Doc. 22] at 3).
This Court finds OneWest’s description of the burden to be more accurate. Moreover, this Court finds that the
burden, as described, implicates the “[p]rocessing, origination, servicing, sale or purchase of, or investment or
participation in, mortgages.” 12 C.F.R. § 560.2(b)(10). Alternatively, this Court finds that the undertaking required by the
language “appears” and “easily ascertained” would more than incidentally affect lending. See Jones, 2010 WL 1238437
at *7 (finding a negligence claim based upon a federal savings bank’s alleged failure to make reasonable inquiry
regarding the necessity for a power of attorney preempted on similar bases). Inasmuch as the OTS has the sole
authority to impose the above-described burden upon federal savings banks, the plaintiff’s claim based upon W.Va. Code
§ 46A-2-128(e) is preempted by section 560.2(b)(10). Accordingly, Count I is DISMISSED WITH PREJUDICE inasmuch as
it is based upon said provision.
ii. Imposition of Late Fees
In Counts I, II, and III, the plaintiff alleges three violations of the WVCCPA based upon OneWest’s imposition of
late fee charges. First, in Count I, the plaintiff claims that the letters written after July 15, 2009, violated W.Va. Code
46A-2-127(d), which prohibits a debt collector from falsely representing the character, extent, or amount of a claim
against a consumer. In support of this claim, the plaintiff alleges he received letters from OneWest dated July 16, 2009,
August 3, 2009, September 16, 2009, October 7, 2009, December 4, 2009, December 16, 2009, December 18, 2009,
January 19, 2010, and January 21, 2010, claiming he was one month behind on his loan and imposing a late fee charge.
These were false representations, the plaintiff argues, because the Agreed Order in connection with his bankruptcy
provided that the one payment for which he was in arrears would be added onto the end of the mortgage. Moreover, the
plaintiff alleges he has made his monthly mortgage payments each month under the Agreed Order, including the first
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payment due in May 2008.
Second, in Count II, the plaintiff claims each late fee constitutes a separate violation of W.Va. Code § 46A-2-128
(d), which declares unfair or unconscionable “[t]he collection of or the attempt to collect any interest or other charge, fee
or expense incidental to the principal obligation unless such interest or incidental fee, charge or expense is expressly
authorized by the agreement creating the obligation and by statute . . ..” In support of this claim, the plaintiff again
alleges he has remained current under the Agreed Order since it took effect in May 2008.
Finally, in Count III, the plaintiff claims each late fee constitutes a separate violation of W.Va. Code § 46A-6-104,
which declares unlawful “unfair or deceptive acts or practices in the conduct of any trade or commerce . . ..” In support
of this claim, the plaintiff alleges he has remained current under the Agreed Order.
In its motion, OneWest argues these claims are preempted because restricting its imposition of late fees would
purport to impose requirements regarding “[l]oan-related fees, including without limitation, initial charges, late charges,
prepayment penalties, servicing fees, and overlimit fees . . ..” 12 C.F.R. § 560.2(b)(5). In support of this argument,
OneWest cites Haehl v. Washington Mutual Bank, F.A., 277 F.Supp.2d 933 (S.D. Ind. 2003), which held that “[s]ection
560.2 expressly preempts state laws purporting to regulate loan-related fees and the processing and servicing of
mortgages.” Id. at 941. In Haehl, the court dismissed a claim concerning a federal bank’s imposition of a “reconveyance
fee,” stating that a state regulation which would restrict the assessment of fees “is exactly the type of state law
regulation that is expressly preempted by § 560.2(b)(5).” Id. at 943. As in Haehl, OneWest argues, the plaintiff “seeks to
apply the WVCCPA so as to restrict, or impose limitations on, the imposition of fees by a federal savings bank subject to
HOLA.” ([Doc. 12] at 5).
In response, the plaintiff argues that none of these provisions regulate whether a late fee may be imposed or the
amount of any late fee. Instead, these provisions merely provide a remedy for violations of the terms of the mortgage
agreement that govern the assessment of those fees. In fact, the plaintiff argues, these claims are virtually identical to
those claims allowed to proceed in Ocwen. Specifically, in Ocwen, the Seventh Circuit found that the HOLA did not
preempt breach of contract claims based upon the imposition of late fees for payments that were not late. Ocwen, 491
F.3d at 645. Moreover, the plaintiff argues that Haehl is distinguishable because, unlike here, the Indiana statute
purported to regulate the type and amount of fees that could be imposed. Finally, the plaintiff argues that the OTS has
noted a distinction between laws affecting the content of a loan contract and those affecting the enforcement of the
loan’s terms. For example, in an opinion letter discussing a previous ruling that an Indiana law prohibiting unfair and
deceptive practices was not preempted, the OTS explained:
The Indiana Deceptive Acts and Practices Statute did not attempt to regulate the . . . amount of a loanrelated
fee, but rather, sought only to protect the integrity of such . . . charges once made. A federal
thrift, as part of a loan contract, could decide what fees to charge and would only run afoul of the Indiana
statute if it did not abide by its agreements or representations regarding those fees . . ..
OTS Opinion Letter P-99-3, Mar. 10, 1999, at 13, n. 63.
Because the WVCCPA provisions at issue here do not attempt to regulate what fees OneWest can charge, the
plaintiff argues that these provisions can be utilized against OneWest for charging late fees for a payment that is not late
under the loan contract, as modified by the Agreed Order.
In reply, OneWest cites the Memorandum Opinion and Order Granting Defendants’ Motion for Partial Summary
Judgment and Motion to Dismiss in Owens v. Central Mortgage Company, C.A. No. 3:08-cv-114 (N.D. W.Va. Dec. 22,
2008). In that Opinion, this Court found certain WVCCPA claims based upon prepayment and late fees preempted by the
HOLA. Owens, Op., pp. 12-13.
The Court first notes that OneWest’s reliance upon Owens is misplaced, as its facts are distinguishable from those
in the instant case. In particular, the plaintiff in Owens alleged that the defendants had violated West Virginia Code §§
46A-3-110(b), 46A-2-127(g), and 46A-2-128(d) by charging the plaintiff prepayment and late fees that were otherwise
permitted by the loan agreement. (Am. Compl. [Doc. 21], at ¶¶ 41-44). In fact, the defendant in Owens argued that “the
provisions of a prepayment addendum to Plaintiff’s promissory note . . . control and are in no way impaired, modified,
cancelled or otherwise affected by West Virginia Code Section 46A-3-110(b) and are valid in every respect. The same can
be said for the provisions of Plaintiff’s note regarding late charges . . ..” (Memo. In Support of Defendant’s Mot. For
Partial Sum. Judgment [Doc. 13-1], at ¶¶ 10-11) (emphasis added). Unlike Owens, the plaintiff is not attempting to
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impair, modify, cancel, or otherwise affect the terms regarding late fees in his agreement with OneWest. Instead, the
plaintiff readily admits the agreement controls but argues that OneWest has breached the agreement, and thus, that his
WVCCPA claims fall within the category of “contract and commercial law” claims exempted from preemption by section
560.2(c)(1). This Court agrees with the plaintiff’s characterization and finds that Owens is not dispositive of the plaintiff’s
claims regarding the late fees imposed in this case.
First, like the Indiana state provisions in the March 1999 OTS Opinion, the WVCCPA provisions utilized here do not
purport to regulate late fees, including what amount can be charged. Thus, at step one, section 560.2(b)(5) is not
implicated. At step two, these WVCCPA provisions, as applied, fit within the category of “contract and commercial law”
exempted from preemption by section 560.2(c)(1). In so concluding, this Court finds that these provisions, as applied,
have no more than an incidental effect on lending operations. According to the plaintiff’s allegations, which control at this
point of the case, the plaintiff and IndyMac entered into an Agreed Order providing that the sole payment for which the
plaintiff was in arrears would be added onto the end of the mortgage. Moreover, the plaintiff alleges he has made his
monthly mortgage payments each month under the Agreed Order, including the first payment due in May 2008. Thus,
the plaintiff claims that OneWest’s continued imposition of late fees is a breach of their agreement, as modified by the
Agreed Order. Based upon this alleged breach, this Court finds that the plaintiff has sufficiently stated claims pursuant to
W.Va. Code §§ 46A-2-127(d), 46A-2-128(d), and 46A- 6-104. Accordingly, the plaintiff’s claims based upon these
provisions MAY PROCEED.[7]
2. State Common Law Claims
i. Breach of Contract In Count V, the plaintiff asserts OneWest’s imposition of late fees breached the mortgage
and deed of trust executed by the plaintiff, as modified by the Agreed Order entered in the plaintiff’s bankruptcy
proceeding. For the same reasons stated above regarding the WVCCPA claims based upon OneWest’s imposition of late
fees, the plaintiff’s breach of contract claim MAY PROCEED.
ii. Defamation and Negligence
In Counts IV and VI, the plaintiff claims OneWest committed negligence and defamed him by informing credit
reporting agencies that his mortgage was delinquent. In support of these claims, the plaintiff alleges he was current on
his loan payments, when OneWest reported that he was delinquent.
In its motion, OneWest argues that the plaintiff’s defamation and negligence claims implicate its imposition of “late
fees” and its “servicing” of the plaintiff’s loan, and thus, are preempted by sections 560.2(b)(5) and (10). Specifically,
OneWest asserts the plaintiff’s claims attempt to:
control how a federal savings bank services its mortgage loans by imposing restrictions on fees it imposes
(including a federal savings bank’s right to determine when late fees are to be imposed), by imposing
restrictions on the circumstances under which a mortgage loan may be deemed delinquent, and by
imposing restrictions on which determinations of delinquency may be reported to credit bureaus.
([Doc. 12] at 9).
In response, the plaintiff argues his defamation and negligence claims fit within the category of “tort law” claims
exempted from preemption by section 560.2(c)(4). In particular, the plaintiff asserts these claims do not attempt to
regulate the terms of his loan. Rather, the plaintiff argues, these claims arise from OneWest’s breach of the terms
involving the imposition of late fees. In reply, OneWest argues that the core of the plaintiff’s defamation and negligence
claims is to challenge the late fees imposed, and thus, these “tort” claims are preempted.
First, this Court finds that a more proper starting point to this analysis is to determine whether the plaintiff’s
common law claims for defamation and negligence are preempted by the Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq. (“FCRA”). Specifically, pursuant to section 1681h(e), “no consumer may bring any action or proceeding in the nature
of defamation . . . or negligence with respect to the reporting of information against . . . any person who furnishes
information to a consumer reporting agency . . . except as to false information furnished with malice or willful intent to
injure such consumer.” Thus, the FCRA allows for only those common law claims that are based upon allegations that
rise to the level of malice or willful intent to injure the consumer. See Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th
Cir. 1980) (adopting the New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, standard, which requires that a
statement be made with “knowledge that it was false or with reckless disregard of whether it was false or not”). Here, in
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support of his defamation claim, the plaintiff alleges that OneWest’s representations to credit reporting agencies were
“willful, wanton or made with disregard” for his rights. ([Doc. 9] at ¶ 88). Thus, the plaintiff’s defamation claim is safe for
now from FCRA preemption. However, in support of his negligence claim, the plaintiff alleges only that OneWest’s
representations to credit reporting agencies were made “negligently.” (Id. at ¶ 100). Thus, pursuant to section 1681h(e),
the plaintiff’s common law negligence claim is preempted. Accordingly, Count VI is DISMISSED WITH PREJUDICE.
Next, this Court must analyze the plaintiff’s common law claim of defamation for HOLA preemption. In so doing,
this Court agrees with Ocwen, in which the Seventh Circuit concluded that a common law claim of defamation is “a good
example of [a] claim that the [HOLA] does not preempt.” Ocwen, 491 F.3d at 648. The plaintiffs there alleged that
Ocwen had defamed them by “falsely representing that they were delinquent in repaying their loans.” Id. Similarly, the
plaintiff here alleges OneWest defamed him by making false representations to credit reporting agencies regarding the
status of his account. (See [Doc. 9] at ¶¶ 82-89). Like in Ocwen, the plaintiff’s defamation claim is not preempted at step
one. Though pursuant to section 560.2(b) the OTS has exclusive authority to regulate OneWest’s fixing of fees as well its
setting of standards for servicing mortgages pursuant to section 560.2(b), section 560.2(c) does not deprive a defamed
consumer his basic state common law remedy. Moreover, prohibiting OneWest and other federal savings banks from
defaming consumers certainly has no more than an incidental effect on lending operations. Therefore, this Court finds
that the plaintiff has sufficiently stated a claim for common law defamation. Accordingly, Count IV MAY PROCEED.
B. Federal Law Claims
1. RESPA Claims
In Count VII, the plaintiff claims OneWest’s failure to respond to three qualified written requests resulted in three
separate violations of the RESPA. First, the plaintiff alleges OneWest failed to acknowledge receipt of the requests within
20 days as required by 12 U.S.C. § 2605(e)(1). Second, the plaintiff alleges OneWest failed to correct or otherwise
respond to any of the requests within 60 days as required by 12 U.S.C. § 2605(e)(2). Third, the plaintiff alleges OneWest
failed to protect his credit rating after receipt of the requests as required by 12 U.S.C. § 2605(e)(3).
In its motion, OneWest argues that the plaintiff’s RESPA claims must be dismissed for failure to allege any
pecuniary loss. In support of this argument, OneWest cites Allen v. United Financial Mortgage Corp., 660 F.Supp.2d 1089
(N.D. Cal. 2009), which held that the plaintiff’s failure “to allege any pecuniary loss attributable to the violation [was]
fatal to [his] RESPA claim.” Id. at 1097. Similarly, in Peay v. Midland Mortgage Co., 2010 WL 476677 (E.D. Cal. Feb. 3,
2010), the plaintiffs’ vague assertion that they “continue to suffer damages and costs of suit” as the result of the
defendant’s “failure to comply with the notice of loan servicing and [qualified written requests] response provisions of
RESPA” was insufficient to state a RESPA claim. Id. at *4. Because the plaintiff, here, has vaguely asserted he “has
suffered injury,” OneWest argues his RESPA claims must also fail.
In response, the plaintiff argues that he has sufficiently pled pecuniary injury in the form of inaccurately imposed
late fees and damage to his credit rating. Specifically, he argues that had OneWest performed the investigation required
by the RESPA, and made the corrections to his account required by the RESPA, late charges would not have been
imposed and OneWest would not have wrongly informed credit reporting agencies that his loan was delinquent.
Moreover, the plaintiff argues that the RESPA does not require pecuniary damages. The Act also allows recovery of noneconomic
damages, such as damages for emotional distress or defamation.
In reply, OneWest argues that the plaintiff merely speculates that had OneWest properly responded, there would
have been no imposition of late charges on his account. Moreover, OneWest argues the plaintiff’s claim that it failed to
protect his credit rating must be dismissed because the plaintiff has not pled that he was actually denied credit as a
result of the allegedly false report to the credit reporting agencies.
With regard to OneWest’s failure to respond, this Court finds that the plaintiff has sufficiently stated a claim,
including the element of damages. From the substance of the provisions relied upon, 12 U.S.C. §§ 2605(e)(1) and (2), as
well as the general factual allegations contained in the Complaint, OneWest’s allegedly inaccurate imposition of late fees
satisfies the pleading requirements for damages. However, this Court agrees with OneWest’s position with regard to the
plaintiff’s RESPA claim for failure to protect his credit rating. The case law is clear. In order to support a RESPA claim
under 12 U.S.C. § 2605(e)(3), a plaintiff must allege a denial of credit based upon inaccurate reporting. See Hutchinson
v. Del. Sav. Bank. FSB, 410 F.Supp.2d 374, 383 (D.N.J. 2006) (sustaining a section 2605(e)(3) claim based upon
plaintiffs’ inability to obtain further financing as a result of negative reports). Here, the plaintiff has failed to present such
an allegation. Accordingly, the plaintiff’s RESPA claims based upon 12 U.S.C. §§ 2605(e)(1) and (2) MAY PROCEED;
however, the plaintiff’s RESPA claim based upon 12 U.S.C. § 2605(e)(3) is DISMISSED WITHOUT PREJUDICE.
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2. FDCPA Claims
In Count VIII, the plaintiff claims OneWest’s actions in its role as a “debt collector” resulted in three violations of
the FDCPA. First, the plaintiff alleges each of OneWest’s demands for payments that were not due was a false
representation of the character, amount or legal status of a debt in violation of 15 U.S.C. § 1692e(2)(A). Second, the
plaintiff alleges each of OneWest’s demands for payment of a late fee charge was also a false representation of the
character, amount, or legal status of a debt in violation of 15 U.S.C. § 1692e(2)(A). Third, the plaintiff alleges each of
OneWest’s demands for payment of a late fee charge was an unfair or unconscionable practice in violation of 15 U.S.C. §
1692f(a).
In its motion, OneWest argues that the plaintiff’s claims under FDCPA fail because it is not a “debt collector,”
which the Act defines as certain entities or individuals who attempt to collect debts “owed or due or asserted to be owed
or due another.” 15 U.S.C. § 1692(a)(6) (emphasis added). Specifically, OneWest asserts its purported actions were
taken to collect its own debt. In support of this assertion, OneWest emphasizes that even the plaintiff admits as much.
First, the plaintiff alleges that he entered into a mortgage loan with IndyMac. ([Doc. 9] at ¶ 8). He then alleges that “[i]n
or around March 2009, IndyMac Bank was purchased by defendant One West [sic] Bank, F.S.B.” (Id. at ¶ 20.) Finally,
the plaintiff alleges that “[t]hereafter, upon information and belief, Indy Mac Mortgage Services became a division of
defendant One West [sic] Bank.” (Id. at ¶ 21). Thus, because OneWest did not act as a “debt collector,” as defined by
the FDCPA, the plaintiff’s FDCPA claims should be dismissed for failure to state a claim.
In response, the plaintiff argues that his FDCPA claims should not be dismissed for two reasons. First, the plaintiff
has alleged that OneWest affirmatively stated, in correspondence to him, that: “This company is a debt collector.” ([Doc.
9] at ¶ 116). Thus, the plaintiff argues that, at this stage, he is entitled to the inference that OneWest has admitted
coverage under the FDCPA. Second, the plaintiff argues OneWest is a debt collector because his loan was allegedly in
default at the time OneWest acquired it. In support of this argument, the plaintiff cites 15 U.S.C. § 1692a(6)(F):
The term [debt collector] does not include –
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due
another to the extent such activity . . . (iii) concerns a debt which was not in default at the time it was
obtained . . .
15 U.S.C. § 1692a(6)(F) (emphasis added).
Moreover, the plaintiff cites Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 539 (7th Cir. 2003), in which the
Seventh Circuit concluded that the exclusion in section 1692a(6)(F)(iii) did not apply because the defendant had
attempted to collect a debt that it asserted to be in default, and because that asserted default existed when the
company acquired the debt. In reaching this conclusion, the Schlosser Court interpreted the FDCPA as “treat[ing]
assignees as debt collectors if the debt sought to be collected was in default when acquired by the assignee, and as
creditors if it was not.” Id. at 536. In reply, OneWest argues that it is a “creditor” under 15 U.S.C. § 1692a(4), which
states that a creditor does not include “any person to the extent that he receives an assignment or transfer or a debt in
default solely for the purpose of facilitating collection of such debt for another.” (Emphasis added). OneWest argues it
did not obtain the plaintiff’s mortgage loan or any other mortgage loan “solely for the purpose of facilitating collection of
such debt for another.” Instead, OneWest argues it “stepped into the shoes . . . of IndyMac Bank, F.S.B., as a result of
the bank’s failure.” ([Doc. 22] at 9). As such, OneWest argues Schlosser is clearly distinguishable. In Schlosser, the
defendant had specifically acquired over 12,000 allegedly delinquent high-interest mortgages for the purpose of
collecting them. Here, the Federal Deposit Insurance Corporation (“FDIC”) negotiated an agreement with OneWest in
connection with the FDIC’s responsibilities as conservator of IndyMac, a failed institution.[8]
This Court agrees with OneWest’s interpretation of the FDCPA regarding the distinction between a “creditor” and a
“debt collector.” First, this Court recognizes that the FDCPA applies only to debt collectors. Second, this Court recognizes
that section 1692a(6)(F)(iii) provides for a situation in which an assignee is a debt collector for purposes of debts in
default upon receipt of the assignment. However, in reading the Act as a whole, this Court finds that 1692a(6)(F)(iii), as
interpreted in Schlosser, provides merely one benchmark for determining when an assignee attains the status of a “debt
collector.” Ultimately, this Court must still determine whether OneWest obtained the plaintiff’s mortgage “solely for the
purpose of facilitating collection of such debt . . ..” 15 U.S.C. § 1692a(4). In taking judicial notice of the events
surrounding the FDIC’s sale of IndyMac to OneWest, this Court cannot find that OneWest’s sole purpose for purchasing
IndyMac was to facilitate debt collection, including the collection on the plaintiffs mortgage. OneWest received all
deposits of IndyMac without regard to whether a debt was in default. Thus, OneWest is not a “debt collector,” and as
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such, the plaintiff cannot state a FDCPA claim against it. Accordingly, Count VIII is DISMISSED WITH PREJUDICE.
CONCLUSION
For the foregoing reasons, the Court finds that the defendant’s Motion to Dismiss [Doc. 11] should be GRANTED
IN PART and DENIED IN PART, the defendant’s Motion to Stay [Doc. 15] should be DENIED, the defendant’s Motion to
Strike [Doc. 18] should be DENIED, and the plaintiff’s Motion to Correct [Doc. 19] should be GRANTED.
It is so ORDERED.
The Clerk is hereby directed to transmit copies of this Order to counsel of record.
———
Notes:
[1]Effective December 1, 2009, “[a] party may amend its pleading once as a matter of course within . . . 21 days after service of a motion under
Rule 12(b) . . ..” Fed.R.Civ.P. 15(a)(1)(B) (emphasis added).
[2]This Court notes that the claims are not set forth in the First Amended Complaint as numbered counts. Instead, they are labeled “First Claim
For Relief,” and so forth. For ease of reference, each claim for relief will be called a “Count” in this Memorandum Opinion and Order.
[3]Inasmuch as this Order denies in part OneWest’s Motion to Dismiss [Doc. 11], and the parties have continued to follow the First Order of
Notice [Doc. 5], including the April 16, 2010, deadline for Fed.R.Civ.P. 26(a)(1) disclosures, this Court finds that the defendant’s Motion to Stay
[Doc. 15] should be, and hereby is, DENIED.
[4]Inasmuch as this Court has corrected the caption in this case to reflect that OneWest does business as IndyMac MS, this Court finds it
unnecessary and unwarranted to strike all references to IndyMac MS. See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir.
2001) (recognizing that a motion to strike is generally viewed with disfavor, as “it is a drastic remedy”). Accordingly, this Court finds that the
defendant’s Motion to Strike [Doc. 18] should be, and hereby is, DENIED.
[5] Inasmuch as the plaintiff seeks to merely correct one sentence and has provided a corrected version of his Memorandum in Opposition, this
Court finds that the plaintiff’s Motion to Correct [Doc. 19] should be, and hereby is, GRANTED.
[6]The Ocwen Court provided an example for clarity: “Suppose an S & L signs a mortgage agreement with a homeowner that specifies annual
interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes
foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based
on the mortgagee’s breach of contract.” Ocwen, 491 F.3d at 643-44.
[7]In so concluding, this Court recognizes that states cannot regulate the terms of the loan agreements entered into by federal savings banks.
However, even a federal savings bank must abide by its agreements. When it does not, “[i]t would be surprising for a federal regulation to forbid
[a] homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract.” Ocwen, 491 F.3d at 643-644.
[8]In so asserting, OneWest requests that this Court take judicial notice of the information provided on the FDIC’s website regarding the events
surrounding OneWest’s acquisition of the plaintiff’s mortgage, citing Curcio v. Wachovia Mortg. Corp., 2009 WL 3320499 (S.D. Cal. 2009) and
Brackett v. Corinthian Mortg. Corp., 2010 WL 1254705 (Bkrtcy. N.D. W.Va. 2010) (finding that information provided by federal agencies on their
web sites fall within the scope of facts of which judicial notice may be taken under FRE 201(b)).
———
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Walter Hackett, on April 20, 2010 at 7:54 pm said:

http://mandelman.ml-implode.com/2010/04/wamu%e2%80%99s-top-gun-loan-officers-targeted-low-income-minorities-to-rob-the-bank-and-the-nation/

I helped arrange this interview and I’m so glad I did!

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Avanti, on April 11, 2010 at 10:10 pm said:

2 Responses
Avanti, on April 11, 2010 at 9:35 pm Said: Your comment is awaiting moderation.
My lender proposed me reducce my commercial loans after I explained my financials. We agree verbaly about the new amount. As same time they noted that they was escrowing the sewer in the property but they was not making the payments timely then my property was for tax sale for 2008 and also 2009 and I needed make the payments for recover my property of tax sale.
Since they noted it, in the modification reduccion they add that I need waive or release any claims. I did not accepted waive anything, since I was asking just for a modification. The bank gave me only 8 minutes to take my decision or sign or they will foreclosure my properties because I was 15 days in default. I did not wanted sign it until they don’t delete the waiver of my rights. Then they take all my mony from my accounts that I had in lender’s bank. May be someone can give me some sugestion what I need to do? or is the Bank is right to force me give me a reduccion only if I release my rights?
Thank you.

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konatina, on April 7, 2010 at 8:33 pm said:

If you are being foreclosed on by Northwest Trustee Services Inc and Routh Crabtree Olsen PS, take a look at the web site of NW Trustee Services-http://northwesttrustee.com/TSG.aspx
where the PUBLIC can order a copy of the title for $39.00. This is private information about you! I called the title company and they knew nothing about NW selling these, and said that they didn’t approve, that the title report they issue (that costs you $1000+ and even you cannot get one given to you) is private and solely for the trustee and beneficiary. Everyone that has or is being foreclosed on by NW Trustee Services needs to make a complaint to the Attorney General in the state in which they reside. Routh Crabtree is the actual person that sends it out to the public. Routh Crabtree acts as a debt collector – so that’s a violation of the Fair Debt Collection Practices Act USC 15 1692.
How can they resell private information? In NW trustee web site, it states they’ve performed over 100,000 foreclosures….There was one trustee that recently lost in court in WA because they didn’t practice “good faith” to all parties. Apparently there was a sale, but they ignored the sale and foreclosed anyway…
If you want info about that case, email me.
tina@cmclender.com

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konatina, on March 27, 2010 at 1:10 pm said:

90 F.3d 600 (1st Cir. 1996)

FEDERAL DEPOSIT INSURANCE CORPORATION, As Receiver For New

Maine National Bank, Plaintiff, Appellant,

v.

Roland HOUDE and Ora Houde, Defendants, Appellees.

FEDERAL DEPOSIT INSURANCE CORPORATION, As Receiver For New

Maine National Bank, Plaintiff, Appellee,

v.

Roland HOUDE and Ora Houde, Defendants, Appellants.

Nos. 95-1853, 95-1854.

United States Court of Appeals, First Circuit

July 24, 1996

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Page 601

[Copyrighted Material Omitted]

Heard March 8, 1996.

——————————————————————————–

Page 602

Jaclyn C. Taner, Counsel, Washington, DC, with whom Ann S. DuRoss, Assistant General Counsel, Colleen B. Bombardier, Senior Counsel, Federal Deposit Insurance Corporation; Andrew Sparks, Paul E. Peck, John B. Emory and Drummond & Drummond, Portland, ME, were on briefs for plaintiff.

Jeffrey Bennett, Portland, ME, with whom Melinda J. Caterine, Clare S. Benedict and Bennett and Associates, P.A. were on briefs for defendants.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The Federal Deposit Insurance Corporation (“FDIC”) appeals from an order, entered in the United States District Court for the District of Maine, dismissing its complaint to collect the amount due on a $275,000 promissory note executed in 1986 by defendants Roland and Ora Houde and made payable to the Maine National Bank, and to foreclose on the mortgage securing the Houdes’ indebtedness. The Houdes cross-appeal from the district court’s denial of four pretrial motions. For the reasons set forth below, we affirm the district court’s order.

I.

In November 1986, Roland and Ora Houde borrowed $275,000 from the Maine National Bank (“MNB”), a federally insured national banking association, to finance a business venture. They executed a note and allonge made payable to MNB (collectively the “Note” or “Houde Note”), and secured by a mortgage on property located in Maine. After MNB declared insolvency in January 1991, ownership of the Note passed to the FDIC as receiver, the FDIC says. The FDIC also says that it transferred the Houde Note briefly to the New Maine National Bank (“NMNB”), a bridge bank set up by the FDIC. After the dissolution of NMNB in July 1991, many of its assets were purchased by Fleet Bank and the rest, as recounted by the FDIC, passed to the FDIC as the duly appointed receiver for NMNB. The FDIC asserts that the Note was among the remaining assets transferred to it. All parties agree, in any case, that the original Note was in the possession of the FDIC at trial.

The FDIC says that it hired Recoll Management Corporation (“Recoll”) to manage the receivership assets of NMNB. The FDIC maintains that Recoll took over management of the Note as well as other obligations owed by the Houdes. These other obligations included loans from MNB to Turcotte Concrete, a corporation of which Mr. Houde was a 50% shareholder, that were guaranteed by the Houdes. Turcotte Concrete filed for bankruptcy in 1991, and as part of the bankruptcy proceeding, Recoll, on behalf of the FDIC, negotiated an agreement in June 1993 resolving Turcotte Concrete’s debt (the “Conditional Amendment to Guaranty Agreements and Promissory Notes,” or “Conditional Agreement”). According to the FDIC, Recoll separately negotiated with the Houdes concerning their personal debt evidenced by the Note. The Houdes, however, contend that the Conditional Agreement resolving Turcotte Concrete’s obligations, by its own terms, released their personal obligations on the Note. On this theory, they have made no payments on the Note since June 1993.

In July 1994, the FDIC sued the Houdes in Maine state court to collect the amount due on the Note and to foreclose on the mortgage securing the debt. The Houdes removed the action to the United States District Court for the District of Maine and then moved to dismiss or for summary judgment on the ground that their personal indebtedness on the Note had been discharged by the Conditional Agreement. The district court denied the motions in September 1994, concluding that there were genuine issues of fact as to the meaning and intent of the Conditional Agreement. In early 1995, the Houdes moved for judgment on the pleadings as well as for summary judgment, reiterating their claim that the Conditional Agreement

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unambiguously released them from the Note. In the Houdes’ Statement of Undisputed Material Facts submitted in connection with their summary judgment motion, the Houdes acknowledged that the FDIC had been appointed as receiver for MNB. The Houdes also moved to dismiss, or for a default judgment based on a claim that the servicing agreement between the FDIC and Recoll violated the Maine champerty statute. See 17-A M.R.S.A. § 516(1). The FDIC cross-moved for summary judgment. In May 1995, the district court denied these motions.

A jury trial was scheduled for early June 1995. Shortly before trial, the FDIC filed a motion in limine seeking to preclude the Houdes from questioning the FDIC’s standing to recover on the Note. The Houdes opposed this motion. The district court denied the motion without addressing the merits of the standing issue. At trial, the parties stipulated that (1) the FDIC possessed the original Note, (2) the Houdes’ signatures on the documents were authentic, and (3) the Houdes had made no payments on the Note since June 1993. The FDIC offered in evidence the original Note which was payable to MNB and had not been indorsed to any other entity. The FDIC called as a witness James Golden, the FDIC account officer, who had only been the custodian of the Houde file for the two weeks prior to trial. Golden testified to the series of events occurring after the failure of MNB up until the time of trial: (1) the FDIC was appointed receiver of MNB, (2) the Note passed to NMNB, a bridge bank set up by the FDIC, (3) the FDIC dissolved NMNB, (4) the Note passed to the FDIC as receiver for NMNB. Golden testified that the Note was not among the NMNB assets that Fleet Bank purchased from the FDIC. The FDIC did not offer or have with it any public or business records evidencing the transfers to which Golden testified.

The Houdes objected to Golden’s testimony and to the introduction of the Note in evidence, arguing that Golden’s testimony was inadmissible hearsay, as he had no personal knowledge of the transactions to which he testified. In addition, they argued that Golden’s testimony was not the best evidence of the transactions in question. The district court sustained the Houdes’ objection and struck Golden’s testimony. The FDIC then requested a short continuance to allow it to obtain documentation of the underlying transactions to which Golden had testified. The court denied a continuance, granting judgment as a matter of law in favor of the Houdes. The court stated that there was “no basis whatsoever on which a jury could conclude that the plaintiff is entitled to enforce this note.” [1] In response to the FDIC counsel’s indication that he would file a motion for reconsideration of the directed verdict later that afternoon, the court indicated that it would not reconsider its decision. The court issued a final judgment dismissing the FDIC’s action on June 8, 1995.

II.

The FDIC contends that the district court erred in finding that the evidence of the FDIC’s ownership of the Note was so inadequate that the FDIC’s claim to enforce the Note against its makers, the Houdes, fails as a matter of law. Alternatively, the FDIC argues that the district court abused its discretion in refusing to grant a brief continuance so as to enable the FDIC to procure records that would establish its requisite interest

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in the Note. The Houdes reply that the FDIC never presented competent proof of the various transactions through which it allegedly acquired lawful ownership and possession of the Note, Golden’s testimony having, in their view, been rightly stricken as hearsay. They argue that without such competent evidence, the FDIC’s case failed as a matter of law.

The district court dismissed the case because it concluded that the FDIC had failed to meet its burden of presenting sufficient evidence to establish, prima facie, that it was a party entitled to enforce the Note. Without proper proof of ownership, the Note would not be admissible as a basis for the FDIC’s claim. The question, of course, would not be whether the FDIC’s right to enforce the Note was conclusively established but whether enough of a case was made out to go to the jury. See Fed.R.Civ.P. 50(a) (“If … there is no legally sufficient evidentiary basis for a reasonable jury to find for [a] party on [an] issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party.”).

1. The FDIC’s Burden of Proof

The FDIC argues that possession of the Note was a sufficient basis for it to be entitled to a presumption that it could enforce the Note. The FDIC points to federal law, set forth in FIRREA, [2] providing expressly that the FDIC succeeds by operation of law to a failed bank’s right and title in all its assets, see 12 U.S.C. § 1821(d)(2)(A), infra. FIRREA, however, does not spell out what the FDIC needs to prove in order to show its entitlement to sue on a transferred asset like the Note. The Supreme Court has recently held that matters left unaddressed in FIRREA are controlled by state law. O’Melveny & Myers v. FDIC, 512 U.S. 79, —-, 114 S.Ct. 2048, 2054, 129 L.Ed.2d 67 (1994). We look, therefore, to Maine law to supplement FIRREA in determining what the FDIC, as receiver of NMNB, needed to show for it to be found a party entitled to enforce the Note. See, e.g., RTC v. Maplewood Invs., 31 F.3d 1276, 1293-94 (4th Cir.1994) (holding that question of whether RTC is a holder in due course is governed by state law); see also FDIC v. Grupo Girod Corp., 869 F.2d 15, 17 (1st Cir.1989) (applying Puerto Rico law to determine whether the FDIC was a holder in due course); FDIC v. Bandon Assocs., 780 F.Supp. 60, 63 (D.Me.1991). But see FDIC v. World Univ. Inc., 978 F.2d 10, 13-14 (1st Cir.1992) (pre-O’Melveny case).

The applicable Maine law, set forth in the Maine Uniform Commercial Code, Negotiable Instruments, 11 M.R.S.A. 3-1101 et seq., [3] provides that a note qualifying as a negotiable instrument can be enforced by “holder[s]” and “nonholder[s] in possession of the instrument who [have] the rights of [ ] holder[s].” See 11 M.R.S.A. § 3-1301. [4] The

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FDIC is plainly not a “holder” under Maine law because the Note was not indorsed to the FDIC and therefore was not “negotiated.” [5] See 11 M.R.S.A. § 3-1201 (“[I]f an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.”); [6] see also Calaska Partners Ltd. v. Corson, 672 A.2d 1099, 1104 (Me.1996) (holding that holder in due course status is not conferred when financial instruments are transferred in bulk to the FDIC).

Not being a holder, the FDIC had to show, as a prerequisite to enforcing the Note against the Houdes, that it was a transferee in possession entitled to the rights of a holder. See 11 M.R.S.A. § 3-1203. Comment 2 following § 3-1203 provides:

If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument … if the transferor was a holder at the time of transfer…. Because the transferee is not a holder, there is no presumption … that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. At that point the transferee is entitled to the presumption….

(emphasis added). [7] Thus, in order minimally to be entitled to the presumption under Maine law that it could enforce the Note, the FDIC was required (1) to prove a sufficient transfer from a holder (here MNB, to which the Note was made payable by the Houdes) to the FDIC in its present capacity as receiver of NMNB, and (2) to produce the Note at trial.

2. The Evidence At Trial

The FDIC brought this action in its capacity as receiver for NMNB. The NMNB was allegedly a bridge bank set up pursuant to 12 U.S.C. § 1821(n) by the FDIC following the

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failure of MNB. The FDIC produced the Note at trial, and the parties stipulated that the signatures were authentic and that the instrument the FDIC possessed was the original. What remained, therefore, was for the FDIC to establish a proper transfer of the Note to it in its suing capacity (receiver of NMNB) from the Note’s holder, MNB.

The first step in this transfer could rather easily have been established given the provisions of FIRREA. A transfer of all the holder’s (MNB’s) rights in the Note to the FDIC as receiver for MNB could be demonstrated simply by showing that the FDIC became the receiver of MNB. Once a receivership of a failed bank takes place, the transfer of the failed bank’s assets to the FDIC occurs by operation of law–the FDIC as receiver of a failed institution succeeding under federal law to:

(i) all rights, titles, powers, and privileges of the insured depository institution, …

(ii) title to the books, records, and assets of any previous conservator or other legal custodian of such institution.

12 U.S.C. § 1821(d)(2)(A).

The most serious problem in the instant case is what additional proof is needed to prove that enforceable title to the Note was transmitted to the FDIC in its subsequent and present capacity as receiver of the bridge bank, NMNB. Under the Maine negotiable instruments law, there has to be “[p]roof of a transfer to the transferee by a holder” of the Note, establishing “proof that the transferee [i.e., the FDIC as receiver of NMNB] has acquired the rights of a holder [MNB].” 11 M.R.S.A. § 3-1203, Comment 2, supra. As stated above, if the FDIC were suing in the capacity of receiver of MNB, nothing more would be required than a showing of such receivership, coupled with a production of the Note, for the FDIC to become entitled to the presumption that it was entitled to payment. But the FDIC is suing as receiver of a different entity, NMNB. There is no automatic transfer provided by federal law of the assets of the FDIC as receiver of a failed bank to a bridge bank, nor is there an automatic transfer from a bridge bank back to the FDIC upon the termination of the bridge bank. See 12 U.S.C. § 1821(n).

A key question, therefore, is whether the record below properly established the formation of NMNB, the transfer of the Note to NMNB, the demise of NMNB and the appointment of the FDIC as its receiver, and the transfer of the Note from NMNB to the FDIC as receiver of that entity. The FDIC relied on the testimony of its witness, Golden, to show this. Golden testified, among other things, to the FDIC’s receivership of MNB, the creation of NMNB, the subsequent dissolution of NMNB, and the Note’s transfer to the FDIC as NMNB’s receiver. The court, however, struck Golden’s testimony. We agree with the court that Golden, having taken over the Houde file only two weeks before trial and not claiming direct personal knowledge of these events, could not testify to them over objection. See Fed.R.Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”) Although, as custodian of the Houde file, his testimony might well have been sufficient to authenticate business records, admissible under an exception to the hearsay rule, that may have proved the underlying transactions, see Fed.R.Evid. 803(6), the FDIC did not have any of the underlying documents with it at trial. Nor was the FDIC prepared to offer public records such as might establish the appointment of the FDIC as receiver of MNB and NMNB respectively. See Fed.R.Evid. 803(8), 901(b)(7) (indicating that public records are admissible as an exception to the hearsay rule and generally self-authenticating). Thus, the FDIC was without admissible evidence of its ownership of the Note. The FDIC conceded that it was unprepared at the time to present alternative evidence after Golden’s testimony was struck, although it said it could obtain the relevant evidence if the court would grant a brief continuance. Without such a foundation, the court declined to permit the Note to be received into evidence. Without the Note in evidence, the FDIC felt that it could not

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proceed. [8]

Attempting to justify the lack of admissible foundation evidence, the FDIC now argues that because the Note was never indorsed and never made payable to anyone other than MNB, it plainly could not have been sold to a third party by the FDIC or the bridge bank. But while the absence of an indorsement on the Note strengthens the argument that no one acquired a title superior to that of the FDIC, it does not by itself meet the FDIC’s burden to “account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it.” 11 M.R.S.A. § 3-1203, Comment 2, supra.

We note that the Houdes, in their Statement of Undisputed Material Facts submitted to the district court in conjunction with their earlier summary judgment motion, conceded that the FDIC was appointed receiver for MNB, that the FDIC created NMNB, that the FDIC appointed itself the receiver of NMNB, and that “[i]t was through these various transactions that the FDIC acquired the Note … at issue in this action.” The Houdes’ subsequent facile recanting of this admission might arguably be the sort of “fast and loose” play which leads a court to impose judicial estoppel. See Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir.1987). However, the FDIC made no effort during the trial to offer the Houdes’ Statement in evidence in order to establish its own ownership of the Note, nor did it make an estoppel argument. [9] In a case such as this with well over a hundred docket entries, the district court can scarcely be expected to recall, sua sponte, a fact listed in one document submitted by the Houdes to the court. Moreover, although the FDIC mentions the Houdes’ admission in its appellate brief, it does not make a “judicial estoppel” argument, or indeed any other coordinated argument, as to why the admission should, at this late date, be binding on the Houdes. See United States v. Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir.1995) (stating that “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived”) (internal quotations omitted). Given the FDIC’s failure to raise the matter in a timely fashion before the district court and to argue the matter on appeal, we regard it as having been waived.

The FDIC also argues that this court should now take judicial notice of the failure of MNB and the taking over of its assets by the FDIC. This point was also not made at trial below, the district court never being asked to take judicial notice of these facts. It is true that the appointment of the FDIC as receiver of MNB was previously announced and relied upon as a matter of fact in two published opinions of this court issued prior to the district court proceeding under review, as well as in several prior opinions of the District of Maine, including opinions issued by the very judge who presided over the present trial. [10] Nonetheless,

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the FDIC’s judicial notice argument fails for several reasons. First, even assuming a court could take judicial notice of the failure of the MNB, no party in this case requested the court to take such action. While the district court might well have taken judicial notice of these well-known facts sua sponte, it was not required to do so unless requested. See Fed.R.Evid. 201(c), (d). Second, even assuming the district court, or this court on appeal, did take judicial notice of the failure of the MNB, the appointment of the FDIC as its receiver, and perhaps even the creation of the bridge bank, these facts would not relieve the FDIC from its burden of showing a transfer of the Note from the bridge bank to the FDIC as receiver for that institution. These are not matters for judicial notice.

We conclude, therefore, with some regret, that there was no error in the district court’s ruling that, on the record as it stood, the FDIC had failed to meet its legal burden. We hold that the record justified the dismissal of the case as matter of law on the narrow but dispositive ground declared by the district court.

3. The Denial of the FDIC’s Requested Continuance

The FDIC argues that even assuming the FDIC as receiver of NMNB failed to make out a prima facie case showing the transactions by which it acquired the Note, the court’s refusal to grant the FDIC a continuance during which it could procure the necessary records and other evidence constituted an abuse of discretion. We review the district court’s refusal to grant a continuance solely for an abuse of discretion. See United States v. Neal, 36 F.3d 1190, 1205 (1st Cir.1994).

Counsel for the FDIC first asked for a two-hour break and then asked, at 10:30 a.m., that the case be continued until the next day. The district judge indicated that he was not willing to recess the case because “[t]his case should have been prepared weeks ago.” In addition, the judge noted that even if he did allow the continuance, any documents or testimony the FDIC produced would not be admissible, over objection, because it would violate the court’s Final Pretrial Order, which required a designation of all exhibits and witnesses and a description of the witnesses’ testimony. The judge stated:

I am not going to continue this case, … to do so means opening the entire case up, probably discharging this jury so that new procedures, pretrial procedures about these documents can be carried out in accordance with the prior order of the court. It would make a complete mockery of the systematic pretrial preparation of cases and the elaborate procedure that the Court has in place to see that these cases are properly tried.

When reviewing a district court’s decision to deny a continuance, broad discretion must be granted and only “unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” will necessitate reversal. United States v. Rodriguez Cortes, 949 F.2d 532, 545 (1st Cir.1991) (citing United States v. Torres, 793 F.2d 436, 440 (1st Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 287, 93 L.Ed.2d 262 (1986)); see also Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 1615, 75 L.Ed.2d 610 (1983). In determining whether a denial of a continuance constitutes an abuse of discretion, the court must consider the particular facts and circumstances of each case. See Torres, 793 F.2d at 440. The court should consider the reasons in support of the request, the amount of time requested, whether the movant has contributed to his predicament, the inconvenience to the court, the witnesses, the jury and the opposing party, and the likelihood of injustice or unfair prejudice attributable to the denial of a continuance. See United States v. Saccoccia, 58 F.3d 754, 770 (1st Cir.1995), cert. denied, — U.S. —-, 116 S.Ct. 1322, 134 L.Ed.2d 474 (1996).

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The FDIC argues that the district court’s refusal to grant a continuance led to injustice and unfair prejudice. It contends that the time needed to gather the necessary evidence would not have greatly inconvenienced the court, the jury or the Houdes, and that some of the documents would have been self-authenticating records admissible in court. This may be so, but it overlooks a number of factors pointing in the other direction, among them the presence of the jury and the court’s reasonable expectation that the FDIC would be prepared for trial. The FDIC contends that it was “surprised” that it had to put forth admissible evidence concerning its ownership of the Note. However, we see no reason for the FDIC to have been surprised. The Houdes had challenged the ability of the FDIC to enforce the Note as an affirmative defense in their answer and had later objected to the FDIC’s motion, which the court denied, to preclude them from challenging the FDIC’s standing to enforce the Note. The FDIC was plainly on notice that it was dealing with adversaries who refused to take a relaxed “common sense” approach on these technical but nonetheless requisite preliminaries. Indeed, the FDIC showed that it understood its burden by calling Golden and questioning him on the matters it did. Unfortunately, it seems not to have recognized the hearsay problem inherent in Golden’s testimony, nor to have taken the trouble to have with it the necessary supporting documents.

The court was entitled to expect the FDIC to have special competence in actions such as this. This suit had been commenced ten months earlier and, as said, the FDIC knew the Houdes would challenge its standing to enforce the Note. It was the FDIC’s failure to have prepared its case for trial that led to the request for a continuance. While the court’s action was strict, and we can imagine some judges who would have assessed the situation more charitably to the FDIC, we cannot say that it abused its discretion in not giving the FDIC additional time to remedy its lack of preparation. See, e.g., Rodriguez Cortes, 949 F.2d at 545 (holding that district court did not abuse its discretion in denying motion for continuance in order to obtain witness to testify that time indicated on hotel registration card was incorrect when defendant had been in possession of the time card for six months and had ample time to obtain a witness). Given the costs of trials, especially before juries, and the adverse effects of delay in one case on other litigants seeking trials, judges must be allowed a considerable discretion in these matters. We find no abuse here.

III.

Because we find that the district court properly directed a verdict in favor of the Houdes and acted within its discretion in denying the FDIC’s request for a continuance, we need not reach the issues raised in the Houdes’ cross-appeal.

Affirmed.

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Notes:

[1]The district court ruled from the bench:

There is a complete gap in the evidence between the time the bank [sic] was lawfully in the possession of Maine National Bank and the title to the document was in Maine National Bank, and the time that it ultimately came to rest in the possession of this plaintiff, and there is no formal proof, first of all that Maine National Bank ever went into receivership, if so, what happened with respect to any of the assets of that institution as a result of that, specifically what happened with respect to this note and mortgage. And there is no proof or evidence sufficient to permit a jury to reach a verdict in favor of the plaintiff with respect to what happened to that note, and what has been referred to as its many transitions in ownership among, apparently New Maine National Bank, Fleet Management Corporation, Fleet Bank and RECOLL Management Corporation, and ultimately its transfer back into the possession of FDIC. It is not even clear that the note ever left the possession of the FDIC in the first place, but all of that is completely in doubt.

[2]FIRREA is the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, 103 Stat. 183, codified in various sections of 12 and 18 U.S.C.

[3]The Maine Uniform Commercial Code was amended in 1993, after the execution of the Note but before the execution of the Conditional Agreement and before the institution of the lawsuit in question. The earlier version of the Maine Uniform Commercial Code, Negotiable Instruments, was codified at 11 M.R.S.A. § 3-101, et seq. (repealed in 1993).

Both parties have taken the position in this litigation that the Note is a negotiable instrument (the Houdes in their appellate brief, and the FDIC in motions submitted to the district court), and neither party has argued that the Note is not a negotiable instrument even though, with its variable interest rate, the Note is arguably not a negotiable instrument under the pre-1993 version of the Maine Uniform Commercial Code. See e.g., FSLIC v. Griffin, 935 F.2d 691, 697 n. 3 (5th Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1163, 117 L.Ed.2d 410 (1992); New Conn. Bank & Trust Co., N.A. v. Stadium Management Corp., 132 B.R. 205, 208-09 (D.Mass.1991). In the absence of an applicable statute, the FDIC’s initial burden would be subject to Maine common law. In discerning the common law requirements for the FDIC to show that it is entitled to enforce the variable interest rate Note, we would be inclined to look to the statutory requirements for enforcing negotiable instruments by analogy. As the parties have not argued otherwise and as it is hard to see how the outcome of this case would change in any event, we proceed on the assertion that the Note is a negotiable instrument under Maine law.

[4]The version of the Maine Uniform Commercial Code in effect before 1993 also provided that holders as well as transferees with the rights of holders could enforce a

negotiable instrument. See 11 M.R.S.A. § 3-201, Comment 8 (repealed 1993).

[5]The federal holder in due course doctrine, which provides a buffer for the FDIC against certain defenses, does not give the FDIC the status of a “holder” in the instant situation. This Circuit has held that the federal doctrine is generally not applicable to the FDIC in its receivership capacity. See Capitol Bank & Trust Co. v. 604 Columbus Ave. Realty Trust (In re 604 Columbus Ave. Realty Trust ), 968 F.2d 1332, 1352-53 (1st Cir.1992) (stating that the federal holder in due course doctrine does not apply to the FDIC as receiver except in the case of a purchase and assumption transaction); see also FDIC v. Laguarta, 939 F.2d 1231, 1239 n. 19 (5th Cir.1991) (same). But see Campbell Leasing, Inc. v. FDIC, 901 F.2d 1244, 1249 (5th Cir.1990) (stating that the FDIC may enjoy federal holder in due course status whether acting in its corporate or receivership capacity); Firstsouth, F.A. v. Aqua Constr., Inc., 858 F.2d 441, 443 (8th Cir.1988) (providing FSLIC-Receiver with federal holder in due course status).

We note that the continuing viability of the federal holder in due course doctrine is questionable. A circuit split has arisen as to whether the doctrine is still valid after O’Melveny & Myers, supra. Compare DiVall Insured Income Fund Ltd. Partnership v. Boatmen’s First Nat’l Bank of Kansas City, 69 F.3d 1398, 1402 (8th Cir.1995) and Murphy v. FDIC, 61 F.3d 34, 38 (D.C.Cir.1995) (holding that O’Melveny & Myers leaves no room for common law D’Oench doctrine) with Motorcity of Jacksonville v. Southeast Bank N.A., 83 F.3d 1317, 1327-28 (11th Cir.1996). This court has not yet expressed an opinion as to the effect of O’Melveny & Myers on the doctrine.

In any event, the present case does not present a situation for which the doctrine was created. The federal holder in due course doctrine is designed to protect the FDIC from claims unascertainable from the books of the failed institution, a purpose unrelated to the present.

[6]The term “negotiation” is similarly defined in the pre-1993 statute, 11 M.R.S.A. § 3-202 (repealed in 1993).

[7]The result would not be different under the pre-1993 version of the Maine Uniform Commercial Code which provided:

[T]he transferee without indorsement of an order instrument is not a holder and so is not aided by the presumption that he is entitled to recover on the instrument…. The terms of the obligation do not run to him, and he must account for his possession of the unindorsed paper by proving the transaction through which he acquired it. Proof of a transfer to him by a holder is proof that he has acquired the rights of a holder and that he is entitled to the presumption.

[11]M.R.S.A. § 3-201, Comment 8 (repealed in 1993).

[8]After a lengthy discussion in which the court indicated that there was insufficient evidence of foundation to allow the Note into evidence and that even if the FDIC were to provide additional documentation and witnesses to lay the proper foundation, it would be in violation of the court’s Final Pretrial Order, the court declined to grant a continuance. The following colloquy then took place:

[FDIC’s Counsel]: Then, your Honor, we have no further witnesses.

THE COURT: I take it the Plaintiff rest [sic] at this time?

[FDIC’s Counsel]: Yeah.

THE COURT: Does the defendant rest?

[Houdes’ Counsel]: Defendant rest [sic] on the complaint and moves for directed verdict.

[9]The FDIC did indicate to the court, several hours after the court directed the verdict for the Houdes, that it would file a motion for reconsideration of the verdict because “there were judicial binding admissions” submitted by the Houdes. The district judge indicated that he would not reconsider the decision because the FDIC should have been prepared to argue that point at trial. The FDIC did not submit a motion for reconsideration. Moreover, the FDIC makes no argument on appeal that the district court’s refusal to reconsider was an abuse of discretion.

[10]See, e.g., United States v. Fleet Bank of Maine, 24 F.3d 320, 322 (1st Cir.1994) (reviewing a decision of the district court judge who decided the present case, the Court of Appeals stated: “In January 1991, the Maine National Bank … was declared insolvent and the Federal Deposit Insurance Corporation … was appointed its receiver.”); Bateman v. FDIC, 970 F.2d 924, 926 (1st Cir.1992) (reviewing a decision of the district court judge who decided the present case, Court of Appeals stated: “[I]n January 1991, the federal Comptroller of the Currency declared the [Maine National] Bank insolvent and appointed the FDIC as receiver.”); Mill Invs. v. Brooks Woolen Co., 797 F.Supp. 49, 50 (D.Me.1992) (acknowledgement of same district court judge that FDIC was appointed receiver of MNB); Cardente v. Fleet Bank of Maine, 796 F.Supp. 603, 606 n. 1 (D.Me.1992) (same).

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ny, on March 22, 2010 at 4:21 pm said:

Sam, unfortunately, you have to research this entire site for your answer or seek help from a qualified attorney. You’re basically at the beginning stage and it’ll get more complicated from here on. Good luck…

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Sam, on March 18, 2010 at 7:09 am said:

IndyMac/One West Bank are demanding that I pay my note in full and are threatening foreclosure . However, they do not show up on the UCC at our county Court House. They have not responded to my request. What should I do now? Please advise.

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Nancy Orozco, on March 8, 2010 at 6:13 pm said:

Hi, my name is Nancy and we are in the process of being evicted tomorrow by Duetsche Bank. The first time they filed the Unlawful Detainer was on 2/9/09 through Citi Residential Lending, Inc. & Deutsche Bank and we were thrown out by the sheriff’s on 6/15/09 and let back in our home the next day. Now Deutsche Bank filed another Unlawful detainer on 12/24/09 and we did not respond to the complaint and a default judgement was issued and possession given per the first complaint and eviction to take place on 03/09/10. We have tried so hard to get someone to help us but have been unable. We have tried to explain that what Deutsche Bank is doing is wrong and according to the recorders office and the real estate D.A. they see nothing wrong and that the Trustee Deed Upon Sale is the same as Assignment. Everybody has told us that there is we can do. We have filed a Notice of Appeal and hoping upon review that the judge see the wrong doing of these companies. If you have any recommendations, we would greatly appreciated.

Thanks you.

Jesus Silos/Nancy Orozco

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Reg Brown, on October 10, 2009 at 4:53 pm said:

We Need This Type of Information to be Free Men &
Women For The People & by The People For Every &
For Every DIVINE ONENESS AMEN. Peace.
Bro. Reggie

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Afiya, on September 2, 2009 at 2:40 pm said:

Please help. Shortly after signing a loan modification, we learned about all that going on and didn’t make the first payment, asking the servicer to disclose our lender and their role, etc. We got very little information but enough to know that our loan has been sold 4 or 5 times. When JP Morgan Chase was named, we asked them to validate their standing, with affadavits of transfers, etc. We got nothing from them and from the servicer, we got that all the info we asked for was subject to business and trade practices which are proprietary and confidential and will not be provided.

They then announced that they were selling the loan again; then we got foreclosure notice. The supposed creditor was not the one they said they were selling it to. There are contradictions all along in terms of lenders, etc. To date, no filings of transfer in the county record.
Based upon our three month track record of requesting this info required by the Fair Debt Collection Practices Act, and that we sent a Cease and Desist Affadavit, the judge granted a temporary restraining order, halting the foreclosure and ordered them to bring a complete chain of title to the upcoming hearing. One day before the hearing, the defendants send a notice of removal to federal court, citing jurisdiction. What should be our next step, please. We appreciate any guidance. 404-284-9667.

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douglas, on August 12, 2009 at 3:49 am said:

contact me at FLCOMMERCIAL@BELLSOUTH.NET, i have some templates

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Juan Santiago, on July 8, 2009 at 8:50 pm said:

This is unbelievable.
The Loss Mitigation Negotiator from Homecomings Financial (a Division of GMAC) for the property I own in Altadena, CA made a commitment with me back in May, 2009, that if I listed the property, she would postpone the sale and continue to postpone it every thirty days while it was listed.
The property is listed, appears in the Pasadena-Foothills Multiple Listing Service and a copy of the listing was faxed over to the Homecomings Loss Mitigation Department.
We have 2 offers, one for 415,000.00 and one for 460,000.00, which were also fax (and a lot of interest by other Realtors), but one of the negotiators, Dianna Hansen, who has never answered my calls and always seems to be busy, went on vacation and has a message (as of today still), that she is coming back on the 26th of June and will return call on the week of the 29th, but she does not pick up or answer her phone, nor call back. The other negotiator, Cindy McQueen, who had previously postponed the sale, also does not pick up, does not return her voice or email messages and as of yesterday has a voice mail that says that it is full. Cindy McQueen, acknowledges in her notes in the file the she had received the listings, but not the offers and she made a notation in the file (I just found this out today) stating we were not aggressively pursuing the sale and therefore released the hold on the Trustee Sale. I do not know how she reached this conclusion, however she never bothered to email me or call me to inform me about it. Executive Trustee Service (a Division of GMAC) NEVER answers their phone either, does and when I went to their office there is a gate (with a guard shack) barring entrance to the facility (however there was no guard in sight. The property to a private party for 285,000.00 (Which creates a Huge tax liability, almost $200,000.00 more than if Homecomings accepted one of the offers and not only that, we had so many interested calls that I had instructed the Realtor to increase the price (and the government is telling us not to seek assistance, instead, to “deal directly with our lender“.
The Realtor had faxed all the pertinent information to Homecomings (listing and offers) as they occurred, and as a precaution, (due to the upcoming) sale date), on 6-26-2009 I emailed Cindy McQueen (cindy.mcqueen@gmacm.com) a PDF file with the print out from the Multiple Listing Service of listing.
The foreclosure was ordered by MERS, who, I understand, has been challenged in Court (and even lost some cases regarding this), as not having legal the legal standing to act as the “Lender” and order a foreclosure.
Although Homecomings filed, and was granted a relief from stay, (at the time, I was not aware I could and did not file an objection) I am still in bankruptcy and I intend to file and adversary proceeding (I’ve been up all night working on it) against all of the herein named companies, employees and other related entities; seeking a TRO and or an injunction barring the transfer of the property, a lis pendens on same and damages to compensate for the added tax liability, as well as redress form a number of violation of Federal and State Consumer Protection Laws (RESPA, TILA, HOEPA, et al.
A search of the internet for lawsuits against GMAC and or Homecomings and Executive Trustee Services for said violations, produced a very long list, some of these even in local courts, so it looks like this has been their modus operandi for some time.
Any feedback from your readers which can assist me in this situation will be greatly appreciated.

Account # 7429250491 – Santa Rosa
800 482-3530
214 874-6987
Fax 866-340-9417
cindy.mcqueen@gmacm.com
Ext 8742429 – Cindy McQueen – Diana Hansen
Supervisor – Bill.Haughton

Sale Date Property Detail Sale Detail
Tuesday
7/7/2009 10:30:00 AM Address: 2844 & 2846 SANTA ROSA AVENUE

City: ALTADENA
State: CA
Zip: 91001
County: Los Angeles
APN: 5841-015-015
Sale Status: Sold on 07/07/2009
TS Number: GM132787C
ASAP Number: 2998272
Notice of Sale Amt: $641,378.00
Opening Bid Amt: $257,056.44
Sold Amt: $285,100.00
Sale Location: At the West side of the Los Angeles County Courthouse, directly facing Norwalk Blvd., 12720 Norwalk Blvd., Norwalk, CA.

Trustee: Executive Trustee Services, Inc.
Trustee Phone#: (818)260-1600

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Paula Brown, on June 30, 2009 at 9:40 am said:

I have been fighting with Ocwen since Jan. 2009. I sent in some paperwork to you on June 29,2009. Hope you can look it over and help me save my home from the auction block slated for July 23, 2009. i have applied twice for Obama’s program and been denied both times. I have to wonder who is being granted this high honor of his program. I’m not bitter.
I have also applied twice for a modification. First time denied me but offered me a lower payment and withdrew it. Second time which was June 29th they offer me a deal made to fail, but backed that up with we will see in a week or so if it gets approved. help, help, and help . thank you pk

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lea, on June 19, 2009 at 1:19 pm said:

I will do whatever I can to help. In Mississippi same saxon deutch problem hearthesunshine@gmail.com in the middle of sending the hamp papers back when I sign them would I be agreeing to deutch bank stuff? we were sold to saxon in 06 and havent gotten any papers from them we requested from last year .Just barely staved off foreclosure sale. We are disabled namn vet waiting for benefits. Is there grounds for a class action suit? Does all the states laws run the same? lea

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Michael Rooney, on May 5, 2009 at 8:02 am said:

KELLY:

Use the TRO-OSC method to use tila or respa to stop the sale in California. You will need to prove up a preliminary injunction, which is tough, but the TRO postpones the sale at least giving you more time. There is an exemplar here on Living Lies for all this.

Be sure, though, that your complaint alleges violations that would be grounds to prevent the bank from selling if you won the case (i.e., rescission remedy) or else you will not stop the sale. Also, be sure you can show a likelihood of success on the merits (i.e., a blank Notice of Right to Cancel form), and that the balance of risk is toward your client.

Otherwise, if you file your complaint long enough prior to the sale, you can go in for a regularly noticed preliminary injunction motion. The standard is the same; different procedural posture. TRO-OSC is for last minute interventions.

Good luck!

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Kelly, on April 24, 2009 at 3:11 pm said:

Does anyone have samples of complaints or a points and authorities memo in support of stopping a non-judicial foreclosure sale in CA based on TILA or RESPA? I’m not quite understanding what cause of action will give the borrower actual possession of the home.

I am first year attorney who was hired by a firm doing mortgage litigation; however, I’m finding that they are not into “teaching me the ropes” as I much as I hoped.

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Douglas Schwartz, on April 13, 2009 at 6:02 am said:

I also need defense forms for florida, summary judgement hearing coming up in may, The bank, represented by florida default law group, is using affidavit to attempt to get attorney fees paid for and still has not produced or provided evidence for foreclosure

flcommercial@bellsouth.net
407-902-9197

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jenifer smith, on March 4, 2009 at 8:43 am said:

Please contact me. I am getting ready to appeal to the U.S. District Court, District of New Mexico on behalf of Miguel Guetierres, deceased, and Inga Gutierrez, incarcerated and incomunicado. Someone must step in for these valiant warriors who I honestly believe have a winnable case. I will learn the case as best possible and then seek to find the best appropriate attorney. In the meantime, as far as I know, I am the only person who has even considered the importance of preserving this case. I am not an attorney. I am an undergrad student who had planned to graduate this term but have decided to cut my load in half so that I can pursue this legal matter. My studies are in foreign languages and Latin America Studies. Obviously, I would be most grateful for any assistance that may be profferred.
Miguel knew he was going to die; and he did. His death has been ruled a suicide. I don’t believe it. Aside from all of that, I couldn’t help bust notice your posting of 1FEB2009 relaying Miguel’s correspondence of 19JAN. I consider that to be a key document and I appreciate you sharing. Thank you. Jenifer

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Glenn Russell, on March 3, 2009 at 2:04 pm said:

Great Article in NY TIMES 02/28/2009

Guess What Got Lost in the Loan Pool? http://www.nytimes.com/2009/03/01/business/01gret.html?_r=1

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