Padget v OneWest – IndyMac Provides some insight into RESPA remedies

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.

Padget-One west bank dba Indymac

Editor’s Note: The assumption was made that One West owned the loan when it was clearly securitized. One West used the fact that Plaintiff admitted that One West was the owner of the loan and therefore undermined Plaintiff’s case against One West as a debt collector which requires the actor to be collecting for the benefit of a third party.

This is where the rubber meets the road. either you are going to master the nuance introduced by securitization or you are going to let the other side have a field day with misrepresentations that you have admitted are true.

PADGETT, Plaintiff,
v.
ONEWEST BANK, FSB, d/b/a INDYMAC

Civil Action No. 3:10-CV-08
United States District Court, Northern District of West Virginia, Martinsburg

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).

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.

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).

Motion to Dismiss denied in part and granted in part. Motion to Strike denied. Plaintiff was allowed to proceed.

Whitley Case 607 F Supp 2d 885 Denial of Motion to Dismiss

Whitley 3rd amended Complaint

Whitley order on mtd Taylor Bean

Thanks everyone for sending me the full text OF THE OPINION.  VERY IMPORTANT CASE. Appraisal fraud, negligence, fiduciary duty, traced up to Taylor Bean. The reasoning in the opinion is at treatise-level. This Illinois Case and the cases it cites opens the door for traveling upstream in the securitization chain to recover all undsiclosed, hidden profits. It also contains some cautionary findings about alleging fraud against a group of defendants, about tolling, and other pertinent topics.

WHITLEY v. TAYLOR BEAN & WHITACKER MORTGAGE CORP. (N.D.Ill. 4-20-2009)
No. 08 C 3114.
April 20, 2009

Ida Mae Whitley (“Mrs. Whitley”), Clyde Whitley (“Mr. Whitley”), and their adult daughter Kenna Whitley (“Kenna”) (collectively “Plaintiffs”) bring this action against Taylor, Bean & Whitacker Mortgage Corp. (“TB & W”), Advance Lending Group, Corp. (“Advance Lending”), Blue Horizon Real Estate Corp. (“Blue Horizon”), Oswald Ochoa (“Ochoa”), John Frey Ospina (“Ospina”), Anita Logan (“Logan”) and Favian Cardenas (“Cardenas”) (collectively “Defendants”) alleging violations of the Credit Repair Organizations Act, 15 U.S.C. § 1679b (“CROA”), the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq (“RESPA”), the Fair Housing Act, 42 U.S.C. § 3605 (“FHA”), the Equal Credit Opportunity Act, 15 U.S.C. § 1691 (“ECOA”), and the Civil Rights Act, 42 U.S.C. § 1981, along with various state law violations. (R. 19, Am. Compl.) Currently before the Court are four motions to dismiss filed by Logan (R. 35), TB & W (R. 38), Advance Lending, Ochoa, and Ospina (“Advance Lending Defendants”) (R. 42), and Blue Horizon and Cardenas (R. 46). For the reasons stated below, the motions to dismiss are denied in part and granted in part.

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