Many Judges are making it harder for lenders to foreclose and easier for homeowners to stop foreclosure. There are laws in the favor of the homeowner that judges are now demanding strict adherence to in order for a bank to foreclose and these laws make it incredibly difficult for the banks to foreclosure without judges giving them some leeway.
This article shows over 80 cases (many bunched together in one group) that were dismissed by several judges. This is only a small tip of the iceberg of the wins people are having over the Big Bad Bank.
Deutsche Bank Foreclosures Were Tossed Out of an Ohio Federal Court: Ohio United States District Court Judge Christopher A. Boyko of the Eastern, on October 31, 2007 dismissed 14 Deutsche Bank foreclosures filed for not holding the mortgage loan at the time the lawsuits were filed.
27 More Foreclosures Were Dismissed: In a decision soon after Judge Boyko’s recent Deutsche Bank ruling Judge Thomas M. Rose has thrown out another batch of foreclosures, making the following summary remarks:
“This court is well aware that entities who hold valid notes are entitled to receive timely payments in accordance with the notes. And, if they do not receive timely payments, the entities have the right to seek foreclosure on the accompanying mortgages.”
Brooklyn Crusader, Judge Arthur M. Schack of the Kings County Supreme Court, has dismissed dozens ( 12 + for the count) of foreclosures sua sponte because of deficient documents or suspicious patterns he noticed in the filings.
63 year old Judge Schack says barely any of the foreclosures he has denied eventually are completed. Schack has said: “Taking away someone’s home is a serious matter. I’m a neutral party and in reviewing papers filed with the court, I have to make sure they’re proper,…” and “I deny more foreclosures than I approve,….”
32 More Foreclosures Were Dismissed: on November 14th by Ohio Federal judge Kathleen O’Malley, citing Judge Boyko’s decision and noting their investigations pertaining to her ruling uncovered that the plaintiff was Household Realty Corporation, showing that this issue was not just a Deutsche Bank problem.
Another Foreclosure Dismissed: On March 7, Duval County, Fla., Circuit Judge Lance Day dismissed a foreclosure stating there were “inconsistencies” in the plaintiff’s documents. Judge Day stated the only document the plaintiff presented was a mortgage payable to another party. He stated, “The document does not reflect the recording information for the mortgage purportedly assigned and does not provide the name of an assignee,” stated the ruling. Deutsche Bank National Trust Co., trustee for Goldman Sachs v. Pope, No. 16-20 07-CA-008285 (Duval Co., Fla., Cir. Ct.).
U.S. Bankruptcy Judge Samuel L. Bufford in Los Angeles issued a notice in January of 2008 warned Lenders in foreclosure cases to bring the original mortgage notes to court and not just submit copies. He stated,
“This requirement will apply because developments in the secondary market for mortgages and other security interests cause the court to lack confidence that presenting a copy of a promissory note is sufficient to show that movant has a right to enforce the note or that it qualifies as a real party in interest.”
Other judges across the United States of America have come on board and are now carefully scrutinizing mortgage documents filed as part of a foreclosure and dismissing the case(s) based on errors they are finding.
The Truth In Lending statutes are very difficult to follow to the letter but that is the standard by which the banks are being held by Judges and that is making it easier for homeowners to fight and win against Lenders on small technical violations and this works to help stop foreclosure.
Here are some cites from – http://www.swlearning.com/blaw/cases/topic_consumer.html
Technical Violations of TILA Disclosure Requirements Are Still Violations
Appeals court held that a lender violated the Truth in Lending Act by failing to state that there were 360 total payments due on a 30-year mortgage. While there was nothing misleading in the disclosure statement, specific TILA requirements must be followed or the law is violated.
On a 30-year mortgage, the disclosure form said you have 359 payments of a certain amount and one payment (the last month) of a slightly different amount. It did not state there were 360 payments as TILA requires. That is a violation of TILA. It clearly requires a statement of how many payments (360). While the math is obvious and the information was not incorrect or intended to mislead, it was still a violation of a specific TILA requirement. TILA has a number of specific requirements that must be followed exactly on the disclosure statement or there is a violation of the law.
Citation Hamm v. Ameriquest Mortgage Co., 506 F.3d 525 (7th Cir., 2007)
TILA’s Statute of Limitations Subject to Equitable Tolling
Consumers are not time barred from suing lender for TILA violations when the violations are concealed by misrepresentation that is not “apparent on the face” of the disclosure statement.
Reversed. TILA’s statute of limitation is subject to equitable tolling, so the court is not automatically deprived of subject matter jurisdiction. Equitable tolling is the doctrine under which plaintiffs may sue after the statutory time limit has expired if they have been prevented from suing due to inequitable circumstances. Without equitable tolling, “consumers whose cause of action was fraudulently concealed from them until after a year had passed could not pursue a cause of action under TILA.” However, GMAC as an assignee is not liable for the alleged TILA violations; the cause of action is against Royal.
Citation Ellis v. General Motors Acceptance Corp., 160 F.3d 703 (11th Cir., 1999)
Other Court Decisions:
Truth in Lending Act Must be Strictly Followed:
Truth in Lending Act must be strictly construed and liability imposed for any violation, no matter how technical. Truth in Lending Act Section 102 et seq., as amended, 15 U.S.C. Section 1601 et seq, Abele v. Mid-Penn Consumer Discount. 77 B.R. 460, affirmed S45 F.2d 1009.
Minor Violations Still Count:
Requirements of Truth in Lending Act are highly technical, but full compliance is required; even minor violations of Act cannot be ignored, Truth in Lending Act, Section 102 et seq. as amended, 15 U.S.C. Section 1601 et seq.; Truth in Lending Act Regulations, Regulation Z Section 226.1 et seq., 15 U.S.C. foil. Section 1700. Griggs v. Providence Consumer Discount Co. 503 F.Supp. 246, appeal dismissed 672 F2d 903, appeal after remand 680 F.2d 927, certiorari granted, vacated 103 S.Ct, 400, 459 U.S. 56, 74 L.Ed.2d 225, on remand 699 F,2d 642.
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