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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.
Continue Reading TILA Does Not Require A Loan Servicer To Identify Who Owns A Loan, Unless The Servicer Owns The Loan By Assignment

In Skov v. U.S. Bank N.A., 2102 WL 2549811 (June 8, 2012), the Court of Appeal reversed the trial court’s decision to sustain a demurrer against plaintiff Andrea Skov’s second amended complaint, holding that she had stated a claim for violation of Civil Code Section 2923.5, which requires a lender to contact a defaulted borrower to discuss alternatives to foreclosure before starting a nonjudicial foreclosure by recording a notice of default. This opinion discusses issues of (1) judicial notice, (2) MERS’ ability to foreclose, and (3) the pleading of a violation of Section 2923.5.
Continue Reading Court of Appeal Reaffirms MERS’ Ability to Foreclose, Holds That Recorded Documents Do Not Overcome a Specifically Pled Violation of Section 2923.5

In Herrera v. Federal National Mortgage Association (2012) 205 Cal.App.4th 1495, the California Court of Appeal joined other courts in rejecting the plaintiffs’ attempt to avoid their mortgage obligations on the grounds that Mortgage Electronic Registration Systems (MERS) is a sham. MERS is a private company that operates an electronic registry to track servicing rights and ownership of mortgage loans. Lenders use MERS to facilitate their transactions and avoid having to record assignments and pay recording fees relating to mortgages. The case confirms that MERS has the authority to assign promissory notes and deeds of trust and that its use
Continue Reading Another California Court Approves The Use Of MERS

By Alejandro Moreno and Shannon Petersen
In Debrunner v. Deutsche Bank Nat. Trust Co. (Cal.App. 6 Dist., 2012) — Cal.Rptr.3d —-, 2012 WL 883128, the California Court of Appeal affirmed the dismissal of a complaint for wrongful foreclosure with prejudice, holding that a beneficiary under a deed of trust need not possess the original promissory note to commence foreclosure and that a borrower cannot avoid foreclosure based on a technical deficiency without showing actual prejudice.
Continue Reading Borrower’s “Show Me The Note” Argument Fails To Halt Foreclosure

By David Sands and Sherwin Root
The California Department of Corporations recently added a question to its on-line frequently asked questions on mortgage loan originators which made clear that wholesale lender account executives who do not deal with the public (but only with correspondent lenders) do not need to be licensed as mortgage loan originators with the NMLS. Here is the text of the entire question and answer:
Continue Reading California Department of Corporations States That Wholesale Account Executive Who Does Not Deal With Consumers Is Not A Mortgage Loan Originator

By Alejandro Moreno and Shannon Petersen
In Nungaray v. Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, the California Court of Appeal held that (i) a Loan Workout Plan is not an enforceable agreement to modify a loan and (ii) a bank does not violate the “one-form-of-action” rule by accepting payments under such a Plan, then proceeding with foreclosure.
Continue Reading A “Loan Workout Plan” Is Not An Agreement To Modify A Loan

In Harbour Vista, LLC v. HSBC Mortgage Services Inc., 2011 WL 6318525 (Cal.App. 4 Dist. 2011), the California Court of Appeal held that plaintiffs may not obtain default judgments in quiet title actions.
Harbour owned a ground lease under a condo complex. Julie Nugent purchased a condo and paid her mortgage to Fieldstone Mortgage Company. She also subleased from and paid rent to Harbour. Both the mortgage and the sub-lease were secured by the condo. Nugent eventually defaulted on both her rent and mortgage. After HSBC purchased the condo from Fieldstone at a foreclosure sale, Harbour filed a complaint to
Continue Reading Default Judgment Is Not Available In Actions To Quiet Title

The Massachusetts Supreme Judicial Court ruled this week that owners of property whose titles have been rendered defective due to improper foreclosures cannot bring a court action to clear their titles under the “try title” procedure in the Massachusetts Land Court. The Court, which in January found that banks can’t foreclose on a house if they don’t own the mortgage, went one step further in a closely watched case and said a sale after that foreclosure doesn’t transfer the property. Therefore, the buyer couldn’t bring his court action against a previous owner, the Court ruled. Left open, however, was whether
Continue Reading Massachusetts Supreme Judicial Court Holds That Bad Foreclosure = Bad Title For Bona Fide Purchaser

In Calvo v. HSBC Bank USA, — Cal.Rptr.3d —-, 2011 WL 4035791 (Cal.App. 2 Dist. 2011), the California Court of Appeal affirmed the longstanding rule that an assignee of a beneficiary under a deed of trust need not record its beneficial interest prior to initiating foreclosure. In Calvo, the plaintiff argued the foreclosure sale of her property was void because HSBC did not record the assignment of the beneficial interest from the original lender to HSBC. She claimed this violated California Civil Code Section 2932.5. Like the lower court, the Court of Appeal found “no merit” to her claims.
Continue Reading No Need To Record An Assignment Of A Deed Of Trust Prior To Foreclosure

In the current flood of mortgage litigation, plaintiffs often rely on myth to avoid paying their debts. One of the most pervasive concerns the Mortgage Electronic Registration System (MERS). Plaintiffs accuse MERS of being a “sham” entity, lacking authority to foreclosure and used by lenders to engage in fraud. In Cervantes v. Countrywide Home Loans, Inc., No. 09-17364 (9th Cir. Sept. 7, 2011), the Ninth Circuit Court of Appeals joins other recent courts in dispelling the Myth of MERS.
Continue Reading Dispelling the Myth of MERS as a “Sham” Beneficiary

On September 23, 2011, HUD issued Mortgagee Letter 2011-34 (the “Letter”). The provisions of the Letter, which became effective immediately upon the Letter’s release, dramatically revamp requirements for FHA-approved lenders. Most significantly, HUD has expanded the single family origination lending area of each home office and registered branch office to include all HUD field office jurisdictions. Previously, a specific office could only make loans in a particular geographic lending area. Under the rules set forth in the Letter, an FHA single-family lender may make loans on a nationwide basis out of any home or registered branch office, provided that the
Continue Reading HUD Revamps FHA Lending Requirements

In Vaca v. Wachovia Mortgage Corporation, — Cal.Rptr.3d —-, 2011 WL 3659938 (Cal.App. 4 Dist. 2011), the California Court of Appeal affirmed the dismissal of a fraud claim on statute of limitations grounds. In 2005, the plaintiff sued her ex-husband, claiming he created false credit histories for their children and used those histories to refinance their mortgages with Wachovia. That case soon settled and, in 2009, the plaintiff sued Wachovia and its successor, Wells Fargo, claiming they participated in her ex-husband’s fraud.
Continue Reading Too Little, Too Late For Plaintiff’s Fraud-Based Mortgage Lawsuit

The recent published decision of Fontenot v. Wells Fargo Bank, N.A. (Cal.App.1 Dist., August 11, 2011) — Cal.Rptr.3d —-. 2011 WL 3506177, adds several more arrows to a secured lender’s quiver of arguments challenging wrongful foreclosure claims at the pleading stage. First, the Court explains in detail how and why publicly recorded documents can be judicially noticed to defeat contradictory allegations. Second, the Court holds MERS properly has all the authority to act on behalf of a lender or beneficiary under the terms of the agency agreement between MERS and the lender. Third, plaintiffs must plead “actual prejudice” to set
Continue Reading The California Court Of Appeal Again Rejects A Claim For Wrongful Foreclosure At The Pleading Stage

In a pyrrhic victory for plaintiffs, the California Court of Appeal has held that an Option ARM class action survives the pleading stage. See Boschma v. Home Loan Center, Inc. (August 10, 2011) — Cal.Rptr.3d —, 2011 WL 3486440. This is the first published California case to address Option ARM cases in such detail. These cases are part of the wave of mortgage litigation flooding the courts in recent years.
Continue Reading The California Court Of Appeals Weighs In On Option ARM Class Actions

In the current flood of mortgage litigation, the so-called “tender rule”—that a borrower generally cannot set aside a foreclosure unless he or she tenders the full amount owed on the loan—poses a significant obstacle for many plaintiffs. The rationale behind this rule is that a borrower should not be able to avoid foreclosure when the borrower cannot pay his or her debt and any procedural errors could be cured. In Ferguson v. Avelo Mortgage, LLC (Cal.App. 2 Dist. Jun. 1, 2011) — Cal.Rptr.3d —, 2011 WL 2139143, the Court of Appeal again affirmed the tender rule and, by doing so,
Continue Reading More Teeth For The Tender Rule

“A mortgage broker has fiduciary duties to a borrower. A mortgage lender does not.”  A decision published on March 28, 2011 by the California Court of Appeals (2 Dist.) clarifies the differences between duties owed to a borrower by a mortgage broker and those owed by a mortgage lender. To avoid potential lawsuits for breach of fiduciary duty or negligence, mortgage lenders should take care not to assume the mantle a mortgage broker (e.g. soliciting lenders or negotiating loans with third party lenders on behalf of a borrowers for a fee).
Continue Reading To Avoid Assuming Fiduciary Duties, Mortgage Lenders Should Take Care to Avoid Acting as Mortgage Brokers