Unfortunate Decision of 9th Circuit

Hat tip to Darrell Neilander and Charles Cox for bringing this one to my attention.

Editor’s Comment: In a twisted display of circular reasoning and reverse logic, the 9th Circuit has issued an opinion that attacks the precise foundation of the Truth in Lending Act. Go to any seminar on TILA and the first thing they will tell you is that the purpose of the act was to provide the borrower with choice of lenders and the ability to apply competitive pressures on one lender versus another.

If a Borrower wants a loan and does NOT want it with Wells Fargo or Merrill Lynch for reasons of his own, then he has a specific right explicitly stated in TILA to know who the lender is and all the parties who received compensation in putting the loan package together for sale to the borrower and sale to the investors. Under Gale vs. Franklin, 686 F. 3d 1055, July 12, 2012, the 9th Circuit said that the right to know the owner of the loan does not apply if you are dealing with the servicer. This directly conflicts with the intent and content of the FCFB definitions in addition to defying  logic. It also strips the specific remedy of clawback of undisclosed compensation.

An additional reason for knowing the name of the obligee is to be able to confirm the balance due and to apply for HAMP or HARP modifications or settlement. How can you do that if you don’t know who the “decider” is?

As for asking for the identity of the creditor, the court incredibly concluded that “Failing to read and respond to letters may be impolite; however, ²a breach of [*1057]  good manners² is not always ²an invasion of any legal right.²  Spaulding v. Evenson , 149 F. 913, 920 (C.C.E.D. Wa. 1906). Richard Gale faults his lender, First Franklin Loan Services (²Franklin²), for failing to respond to his correspondence regarding ownership of his loan, and alleges that this failure amounted to a violation of the Truth in Lending Act (²TILA²), and Nevada’s covenant of good faith and fair dealing. Because Franklin was not legally required to respond in its capacity as loan servicer, we affirm the district court’s dismissal of these claims. However, Gale also alleges [**2] that after failing to respond to his letter, Franklin and the other defendants engaged in illegal conduct by wrong-fully foreclosing on his property. We remand these remaining state law claims to the district court.”

So as an aside, the Court cleaned out the carcass of RESPA as well. This decision cannot and will not stand in my opinion and the entry of politics and ideology clearly clouded the real issues of due process, statutory duties, and justice. But worse, the court put its stamp of approval on screwing around with the title records corrupting them beyond recognition.

This Court has given a back-door to those who engaged in such behavior and left the title problems for future owners, lenders and beneficiaries of trusts. In my opinion I would continue to plead the same actions and bring it up on appeal — perhaps in the state appellate decisions and maybe even direct to the State Supreme Court on public policy and urgency for consistency in decisions.

But once again, we have admissions that helped the court along in this wrong application of the law. The “FACTS” are that Gale “refinanced his home with Franklin.” In order to recite those facts, it would have been necessary to have the borrower admit that the transaction was real and actually took place. Now if Franklin actually did the loan and it was not subject to claims of securitization, this might be an inevitable admission. But Franklin does not appear to be one of the exceptions of those banks that did not play securitization PONZI roulette. The “Facts” show otherwise. [As soon as you see MERS” you know claims of securitization are involved.]

The same applies to “Gale defaulted on the loan.” How did that get in the record unless Gale admitted it? How does Gale know that there was a payment due? He presumed it because Franklin was the originator. With what is in the public domain now, we know that the loan might well have been paid in full or paid in part or that the payments to the real creditor continued to be made even after the borrower stopped paying. If the payment was made, there was no payment due, and thus there could be no default. But the Borrower here appears to have admitted it.

The one sort of bone thrown out to borrowers, is that the Court concluded that if the Gale claim arose after passage of Dodd-Frank, the results might have been different. They completely missed the point that the rules and regulations in Dodd-Frank were already stated or inherent under common law and existing statutory law, both Federal and State.

In short, the 9th Circuit is treating the sham transactions and strawmen of the fake securitization scheme with the deference one might give to a king. If the shoe was on the other foot, such behavior would not be tolerated for even a moment. Can you imagine the same court finding that a borrower does not need to disclose his principal in a loan? This decision is twisted, absurd and wrong.

by Charlie Guy

In Gale v. First Franklin Loan Services, 686 F.3d 1055 (9th Cir. 2012), the Ninth Circuit held that a borrower has no right under the federal Truth in Lending Act (“TILA”) to require a loan servicer to identify the owner of a loan obligation. TILA requires a servicer to identify the owner of the loan only when the servicer owns the loan, and only when the servicer owns the loan by assignment.

In Gale, the borrower refinanced his home mortgage with First Franklin Loan Services, which both originated the loan and serviced it. After the borrower became delinquent, he demanded First Franklin identify the “true” owner of the obligation. First Franklin ignored the requests and proceeded with foreclosure. The borrower filed suit claiming, in part, a violation of TILA. The trial court dismissed the TILA cause of action as a matter of law, and the Ninth Circuit affirmed.

On appeal, the borrower argued that the plain language of TILA, 15 U.S.C. Section 1641(f)(2), required First Franklin to respond to his inquiries regarding the identity of the owner of the loan. That section states that upon written request, “the servicer shall provide the obligor . . . with the name, address, and telephone number of the owner of the obligation . . .” The Ninth Circuit explained that this provision does not apply to all loan servicers, but only those servicers who are owners of the loan by assignment after loan origination. In this case, First Franklin was both the original lender and the servicer, so this section did not apply.

The Ninth Circuit also noted that, since a 2010 amendment to the Real Estate Settlement Procedures Act, all servicers must identify the owner of a real estate loan if requested, under all circumstances. This change, however, does not apply retroactively to claims (like the claim in Gale) that accrued prior to 2010.


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