Saturday, April 12, 2008

Florida-Based Foreclosure Rescue Operator Banned In Texas By State AG

From the Texas Attorney General's Office:

  • Texas Attorney General Greg Abbott has shut down a fraudulent “foreclosure rescue” firm that preyed on hundreds of struggling Texas homeowners. An order by the Bexar County District Court requires Foreclosure Assistance Solutions Inc. of Florida, and its principal operators, Herb Zerden and Adolfo Quintero, to return $370,000 to 338 Texas homeowners. Additional defendants J.W.W. Services Inc. of California and owner John Woodruff are also included in the judgment. Another $105,000 will be held in escrow to assist remaining homeowners who can demonstrate they were victimized by this scheme.


  • Today’s settlement requires the defendants to pay $100,000 in civil penalties and $175,000 in attorneys’ fees. The judgment also prohibits the defendants from conducting Texas-based mortgage foreclosure mitigation in the future.

For the entire Texas AG press release, see: Attorney General Abbott Obtains Judgment That Brings Relief To Foreclosed Homeowners (Foreclosure Assistance Solutions and owners must return $475,000 to harmed homeowners).

See also:

Friday, April 11, 2008

Illinois AG Files Suit Against "Bishop" Who Allegedly Ran Illegal Foreclosure Rescue Operation

In Chicago, Illinois, WLS-TV Channel 7 reports:

  • In the last year, the Illinois attorney general's office has sued or investigated about a dozen foreclosure rescue services. The AG's office says the latest one it's suing violated the Consumer Fraud and Deceptive Business Practices Act and used religion to sell its services. [...] At first, Reverend Walter C. Armstrong wouldn't answer questions about his company's promises to save people like Evelyne Allen from foreclosure. Armstrong is a bishop and a reverend at Prayer of Faith Church on the city's West Side. He also ran Victory Consulting, a now defunct company that the AG says went door to door, passing literature to prospective clients.


  • In this lawsuit, the attorney general alleges Victory Consulting gained consumers' trust by saying the company was a faith-based organization. "So the consumer isn't likely to answer a lot of questions, isn't likely to demand documents because of this sort of aura of faith and trust," said [said Illinois Ass't AG Michelle] Garcia. The lawsuit says homeowners in foreclosure would sign their home over to a "surrogate owner" and then continue to pay the mortgage to the surrogate owner.

For more, see Foreclosure Chasers (They claim they'll save your home if you're being foreclosed on, but local authorities say most so-called foreclosure rescue services are rip-offs).

To view the Illinois AG's lawsuit, see State of Illinois v. Victory Consulting & Investments, Inc., et al.

For the Illinois AG's press release, see Attorney General Madigan Files Suit Against Chicago Mortgage Rescue Fraud Company (Deceptive Tactics Sent Five Homeowners into Foreclosure).

Thursday, April 10, 2008

Florida AG Levels Civil Charges Against Upfront Fee Foreclosure Rescue Operator For Allegedly Violating State Deceptive & Unfair Trade Practices Act

In Clearwater, Florida, the St. Petersburg Times reports:

  • State Attorney General Bill McCollum [last] Thursday sued a Clearwater foreclosure rescue operation, accusing it of engaging in deceptive and unfair business practices. The lawsuit alleges that Law & Associates pitched services to homeowners facing foreclosure in Florida and across the country through direct mail and various Web sites. Those who responded were charged an up-front cash fee of $1,500 to $2,000 for guidance and help negotiating with lenders, but the services never materialized, according to the suit.


  • The attorney general's office reviewed more than 65 consumer complaints about the company, which began operating in Clearwater in 2004. In none of those cases did the company actually prevent foreclosure of a home, the lawsuit says. [...] McCollum's lawsuit alleges six counts of violating the state's Deceptive and Unfair Trade Practices Act.

The Florida AG seeks to:

  1. shut down the company's foreclosure rescue operations,
  2. nail it for at least $10,00o in penalties for each violation of the law,
  3. recover its attorney's fees,
  4. force a return of all fees paid by the homeowners,
  5. among other things.

For more, see:

Wednesday, April 9, 2008

Arizona AG Settles With "Straw Buyers" In Equity Stripping Civil Suit; Proceedings Continue As To Other Defendants

In Phoenix, Arizona, The Associated Press reports:

  • Four Phoenix-area residents who acted as "straw-buyers" in a foreclosure rescue scheme have agreed to pay $89,000 to settle a civil suit filed by Arizona Attorney General Terry Goddard's office. Goddard's office says the four participated in a scam scheme designed to skim equity from the residences of distressed homeowners. They obtained millions of dollars in mortgages and left the homeowners even further in debt. The defendants did not admit guilt but agreed not to engage in similar practices in the future. Other defendants are still being sued by the state under provisions of Arizona's Consumer Fraud Act and its Racketeering Act.

Source: Arizona AG settles case with "foreclosure rescue" buyers.

For the Arizona AG press release, see Terry Goddard Announces Settlements in Foreclosure Rescue Scheme (The case, Arizona v. Peter Hou, Yanjun Hou, and Stress Free Equity Corp., et al., is pending against other defendants in Maricopa County Superior Court).

Tuesday, April 8, 2008

Nine Mortgage Servicers, Governor Strickland Reach Agreement On "Non-Binding" Publicity Stunt To "Help" Ohio Homeowners Facing Foreclosure

In Columbus, Ohio, Bloomberg News reports:

  • Citigroup Inc., HSBC Finance Corp., and seven other mortgage companies agreed to help delinquent Ohio borrowers avoid foreclosure in the first such accord between a state and home-loan servicers, Ohio Governor Ted Strickland said. [...] The companies signed non-binding compacts agreeing to notify borrowers four to six months before their adjustable-rate mortgages reset, said Kimberly Zurz, director of Ohio's Department of Commerce. Seven agreed to lock in adjustable rates for qualified borrowers for as long as five years, she said.


  • The other companies that signed agreements were GMAC RESCAP/Homecomings Financial, Carrington Mortgage Services, Ocwen Financial Corp., Option One Mortgage, Saxon Mortgage Services, Select Portfolio Servicing and Litton Loan Servicing, Strickland said in a statement.

For the rest of the story, see Citigroup, HSBC, 7 Others to Assist Ohio Homeowners.

Editorial Note:

It's hard not to believe that the loan servicers who agreed to this non-binding agreement (which, in law, is no agreement at all) are simply giving lip service to take the heat off them in Ohio. Given the facts that:

  • Ohio recently announced that qualified homeowners in foreclosure may have free legal representation available to them,

  • the same announcement informs us that Ohio foreclosure defense training for attorneys representing homeowners in the state has reportedly been made available through the Ohio Bar Association,

  • it is no secret that foreclosing mortgage holders and servicers are having a tough time finding and filing the proper documentation in court proving their right to bring foreclosure actions,

  • a recent media report informs us that an Ohio appeals court ruled last month that a foreclosing mortgage company is not entitled to a foreclosure judgment if they can't prove their ownership of the promissory note and how they came about owning the mortgage (see Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282; (10th Dist. Ct. App.; March 20, 2008)), and

  • other Ohio appellate court decisions also seem to point to the apparent need for a foreclosing mortgage lender to prove that it is the owner of the promissory note and, thererfore, the real party in interest to initiate the legal action (see First Union Natl. Bank v. Hufford (2001), 146 Ohio App.3d 673; 3rd Dist. Ct. App. ; and Washington Mut. Bank, F.A. v. Green (2004), 156 Ohio App.3d 461; 7th Dist. Ct. App.),

the loan servicers are obviously feeling enough pressure to participate with the Ohio governor in this publicity stunt. Everyone appears to come away looking good, but it seems to me that unless the loan servicers can physically produce the promissory note, and prove that there were no violations of the Federal Truth In Lending Act ("TILA", as well as any applicable state consumer protection law) when the loan was originated, the homeowners really have little incentive to agree to a loan workout (unless, of course, the terms of any such loan workout are highly favorable to the homeowners and reflect the fact that promissory notes are missing and "TILA" violations were committed).

Now that there are attorneys involved who are representing homeowners, it appears to me that those attorneys have now taken up the obligation to assure their clients/homeowners that all the laws affecting their mortgage loans and all the rules governing the legal procedure in foreclosure cases have been complied with. I expect that these attorneys will not let the mortgage companies off the hook on their obligations, unless of course, they are prepared to make significant concessions to the homeowners when ironing out a loan modification.


For more on mortgage companies' obligations in foreclosure actions, see Fight Foreclosure: Make ‘Em Produce The Note!.

For other posts that reference the failure of some mortgage lenders and their attorneys of filing madatory loan documents when starting foreclosures, Go Here , Go Here and Go Here.

For other posts on homeowners using Federal & state consumer protection statutes to try and undo bad mortgage loans, Go Here and Go Here. undo mortgage loans TILA batallion missing mortgage foreclosure docs beta

Monday, April 7, 2008

Lender Not Entitled To Foreclosure Judgment Due To Failure To Prove Promissory Note Ownership, Says Ohio Appeals Court

In Ohio, the Akron Beacon Journal reports:

  • The state attorney general's office is looking for new ways to slow foreclosures in court, hoping a recent Ohio appellate court decision will help in those efforts. [... Ohio Attorney General's Office representative Tom] Winters said the office was encouraged by a March 20 decision by the 10th District Court of Appeals in Columbus and is looking for similar cases.

  • "That ruling was the first time that a court in Ohio has held that a mortgage company must prove that it still holds the mortgage to the home before it can proceed with a foreclosure," Winters said. "That's consistent with what the federal courts have done, and that's encouraging."


  • "If we can slow the filings down and educate the homeowners on how they can negotiate to stay in their homes, then you have a better chance of resolving this stuff," Winters said. "It's not going to work for everybody, but right now nothing's been working for anybody, and that's the problem."

For more, see Ohio looking for new ways to slow foreclosures in court.

For the decision of of Ohio Court of Appeals, see Everhome Mtge. Co. v. Rowland, 2008-Ohio-1282; (Case #07AP-615; 3-20-08).

Editorial Note:

A quick reading of this case reveals that the Ohio trial judge originally hearing the foreclosure case ruled against the homeowner and held that the foreclosing lender didn't need to prove ownership or show how it came to be the holder of the mortgage. The homeowner subsequently filed an appeal of this ruling. Upon considering the appeal, the Ohio appeals court ruled that the trial judge's decision was in error and, accordingly, reversed the original ruling. Among other things, this case:

  1. illustrates the fact that trial judges will make incorrect decisions from time to time, and
  2. reflects the importance of being represented by an attorney who is ready, willing and able to file an appeal to seek a reversal of an incorrect decision. Had the attorney not known enough to file an appeal, the homeowner would have been stuck having to follow an incorrect ruling (and probably wouldn't have realized that the judge's ruling was wrong).


The following excerpts from the Ohio appeals court reflects its position on this issue:

  • {¶11} "Every action shall be prosecuted in the name of the real party in interest." Civ.R. 17(A). A real party in interest is one who is directly benefited or injured by the outcome of the case. Shealy v. Campbell (1985), 20 Ohio St.3d 23, 24. The purpose behind the real-party-in-interest requirement is " 'to enable the defendant to avail himself of evidence and defenses that the defendant has against the real party in interest, and to assure him finality of the judgment, and that he will be protected against another suit brought by the real party at interest on the same matter.' " Id. at 24-25, quoting In re Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240.

  • {¶12} In foreclosure actions, the real party in interest is the current holder of the note and mortgage. Chase Manhattan Mtge. Corp. v. Smith, Hamilton App. No. C-061069, 2007-Ohio-5874, at ¶18; Kramer v. Millott (Sept. 23, 1994, Erie App. No. E-94-5 (because the plaintiff did not prove that she was the holder of the note and mortgage, she did not establish herself as a real party in interest). A party who fails to establish itself as the current holder is not entitled to judgment as a matter of law. First Union Natl. Bank v. Hufford (2001), 146 Ohio App.3d 673, 677, 679-680. Thus, in Hufford, the Third District Court of Appeals reversed a grant of summary judgment where a purported mortgagee failed to produce sufficient evidence explaining or demonstrating its right to the note and mortgage at issue. In that case, the record contained only "inferences and bald assertions" and no "clear statement or documentation" proving that the original holder of the note and mortgage transferred its interest to the appellee. Id. at 678. The failure to prove who was the real party in interest created a genuine issue of material fact that precluded summary judgment. Id. at 679-680.

  • {¶13} Similarly, in Washington Mut. Bank, F.A. v. Green (2004), 156 Ohio App.3d 461, the Seventh District Court of Appeals reversed the trial court's finding of summary judgment where the plaintiff failed to prove that it was the holder of the note and mortgage. There, the defendant executed a note and mortgage in favor of Check 'n Go Mortgage Services, not Washington Mutual Bank, F.A. Although Washington Mutual Bank, F.A. submitted an affidavit alleging an interest in the note and mortgage, it did not state how or when it acquired that interest. Id. at 467. The court concluded that this lack of evidence defeated the purpose of Civ.R. 17(A) by exposing the defendant to the danger that multiple "holders" would seek foreclosure based upon the same note and mortgage. Id.

  • {¶14} In the case at bar, the note and mortgage identify TrustCorp—not Everhome—as the lender. Therefore, Everhome needed to present the trial court with other evidence to prove its status as the current holder of the note and mortgage. To accomplish this, Everhome relied upon the affidavit testimony of Becky North, an Everhome officer. In her affidavit, North stated that "the copies of the Promissory Note and Mortgage Deed attached to Plaintiff's Complaint are true and accurate copies of the original instruments held by Plaintiff." (Emphasis in the original.) Beyond this tangential reference, North's affidavit contains no further averments regarding Everhome's interest in the note and mortgage.

  • {¶15} We conclude that North's testimony is insufficient to establish that Everhome is the current holder of the note. First, Everhome failed to attach the note to its complaint. Thus, North's statement does not prove anything with regard to the note, much less that Everhome currently holds the note. Second, North does not specify how or when Everhome became the holder of the note and mortgage. Without evidence demonstrating the circumstances under which it received an interest in the note and mortgage, Everhome cannot establish itself as the holder.

  • {¶16} Lacking the necessary evidence in the trial court record, Everhome attempts to introduce that evidence on appeal. In its brief, Everhome alleges that TrustCorp assigned to it TrustCorp's interest in the note and mortgage on April 19, 2007. Although evidence of an assignment would establish Everhome's status as the current holder of the note and mortgage, we cannot consider Everhome's belated allegation that an assignment occurred. See State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus ("A reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter.").

Representing the homeowner in this case was Adam R. Todd of Dinsmore & Shohl, LLP.

For other posts that reference the failure some mortgage lenders and their attorneys of filing madatory loan documents when starting foreclosures, Go Here , Go Here and Go Here.

For a consumer video devoted to the subject of making mortgage lenders produce the mandatory paperwork when filing a foreclosure action, see Fight Foreclosure: Make ‘Em Produce The Note!. missing mortgage foreclosure docs beta

Sunday, April 6, 2008

Bankruptcy Judge Gives Green Light To U.S. Trustee On Countrywide Inquiry

In Pittsburgh, Pennsylvania, The Associated Press reports:

  • A federal judge ruled the Justice Department can subpoena documents and question Countrywide Financial Corp. executives under oath to determine whether the lender abused borrowers and the bankruptcy-court process. U.S. Bankruptcy Judge Thomas Agresti said "it certainly has not been proven that Countrywide did anything wrong," but noted a bankruptcy trustee "has made a showing of a common thread of potential wrongdoing" in several cases. The cases are a representative sample of nearly 300 Pennsylvania bankruptcy cases involving Countrywide borrowers. The potential wrongdoing warrants further inquiry by a bankruptcy trustee on behalf of the Justice Department, Agresti said.


  • The company has acknowledged errors in handling some debts, but has denied any systematic effort to thwart bankruptcy protections to collect money. Some bankrupt borrowers, however, have accused the company of threatening them with foreclosure even after they made payments under court-approved bankruptcy plans that were meant to shield them from Countrywide's subsequent efforts to collect the debts. Agresti's 50-page ruling was issued late Tuesday in Pittsburgh. [...] Agresti is overseeing 293 cases filed in Pittsburgh that include allegations that Countrywide sought improper fees or payments from bankrupt homeowners and otherwise violated bankruptcy court orders and regulations.
For more, see Judge OKs fed subpoenas of Countrywide.

See also, Reuters: Judge OKs probe into Countrywide practices.

Go here for Judge Agresti's ruling.

Go here for more on recent Countrywide problems with consumers.