Cite as: Keith M. Lundin, Lundin On Chapter 13, § 138.8, at ¶ ____, LundinOnChapter13.com (last visited __________).
This section will be available soon, discussing the astonishing array of issues in recent reported opinions resolving objections to claims filed by mortgage creditors. Substantial litigation has traveled far beyond mere objection to allowance, and this section will analyze the various ways that Chapter 13 debtors have attempted to limit or defeat the claims of mortgage creditors. Other aspects of mortgage-related litigation are discussed elsewhere: “best practices” issues, that is, what mortgage management provisions can be included in the plan without violating the antimodification provision in § 1322(b)(2);1 whether a mortgage creditor violates the automatic stay by postconfirmation action such as charging attorney or other fees without seeking stay relief;2 whether the long-term mortgage debt is current at plan completion and discharge;3 and whether the mortgage creditor violates the discharge injunction when it seeks to collect pre- or postpetition contractual amounts after completion of payments and discharge.4
1 See § 118.1 [ Most Home Mortgages Cannot Be Modified: § 1322(b)(2) and Nobelman ] § 79.1 Most Home Mortgages Cannot Be Modified: § 1322(b)(2) and Nobelman.
2 See § 245.1 [ Postpetition Claims and Relief from the Stay ] § 124.5 Postpetition Claims and Relief from the Stay.
3 See § 351.1 [ Long-Term Debts ] § 158.7 Long-Term Debts.
, 763 F. App'x 160 ( ) () (Foreclosure by Wells Fargo was not time-barred under New Jersey law because correct statute of limitations was 20 years from default by debtors, not six years from acceleration. Wells Fargo owed no duty to borrower with respect to loan modification applications.), aff'g No. 15-7093 (ES), 2017 WL 2230336 (D.N.J. May 22, 2017) (Salas) (Debtor’s claim of negligent misrepresentation by Wells Fargo during loan modification process fails to state a claim because Wells Fargo, as servicer of loan, is not alleged to owe the debtor any duty other than its contractual obligations.), aff'g in part No. 15-01968 (JKS), 2015 WL 4974092 (Bankr. D.N.J. Aug. 19, 2015) (unpublished) (Sherwood) (Acceleration of mortgage did not affect maturity date for purposes of applicable limitations period; foreclosure action was not time barred under state's Fair Foreclosure Act.)).
Fornesa v. Fifth Third Mortg. Co., 897 F.3d 624 (5th Cir. July 27, 2018) (Jones) (Chapter 13 debtor was judicially estopped to claim that mortgagee violated automatic stay by foreclosing during Chapter 13 case when debtor failed to adequately describe property in schedules, failed to reveal equity sharing agreement and failed to give mortgagee proper notice of case.).
Isaacs v. DBI-ASG Coinvestor Fund, III, LLC (In re Isaacs), 895 F.3d 904 (6th Cir. July 18, 2018) (Batchelder, Gilman, Rogers) (Rooker-Feldman doctrine bars Chapter 13 debtor’s claim that foreclosing creditor does not have a lien that attached to debtor’s property based on state court foreclosure judgment. However, Rooker-Feldman doctrine does not bar debtor’s adversary proceeding under § 544 asserting that mortgage recorded after prior bankruptcy petition was not perfected because of automatic stay
Opperwall v. Bank of Am., N.A., 727 F. App’x 329 (9th Cir. June 15, 2018) (unpublished) (Siler, Paez, Ikuta) (Affirming bankruptcy court, confirmed plan was preclusive with respect to existence and extent of loan modification agreement.).
Danise v. Saxon Mortg. Servs. Inc., 738 F. App'x 47 (3d Cir. June 7, 2018) (unpublished) (McKee, Ambro, Restrepo) (Postdischarge Chapter 13 debtor is judicially estopped to maintain action against Saxon and Ocwen for wrongful denial of loan modification applications before and during completed Chapter 13 case. Debtor failed to schedule the causes of action during the Chapter 13 case.), aff’g No. 15-06062 (JLL), 2017 WL 838799 (D.N.J. Mar. 3, 2017) (unpublished) (Linares) (Debtor’s failure to reveal FDCPA action against mortgagee during Chapter 13 case is fatal to complaint filed after discharge.), denying reconsideration of No. 15-06062 (JLL), 2016 WL 7340287 (D.N.J. Dec. 19, 2016) (unpublished) (Linares) (Judicial estoppel bars post-discharge action against Saxon and Ocwen alleging breach of contract and violations of various consumer fraud statutes when defendants failed to modify mortgages under HAMP; loan modification was denied before confirmation of the plan and debtors waited five years to bring putative class action against Saxon/Ocwen.).
Draudt v. Holmes (In re Draudt), 714 F. App’x 781 (9th Cir. Mar. 12, 2018) (unpublished) (Graber, Fletcher, Owens) (Bankruptcy court properly dismissed wrongful foreclosure action because claims rested on flawed legal premise that automatic stay remained effective after the bankruptcy court dismissed the underlying Chapter 13 case. Order of dismissal did not “provide otherwise.”).
Boyce v. Citibank, N.A. (In re Boyce), 710 F. App’x 44 (2d Cir. Jan. 31, 2018) (unpublished) (Livingston, Carney, Korman) (After unsuccessful appeal of state court foreclosure, bankruptcy court appropriately refused to reopen adversary proceeding challenging mortgagee’s right to foreclose.).
Nationstar Mortg., LLC v. Iliceto (In re Iliceto), 706 F. App’x 636, 641–45 (11th Cir. Dec. 11, 2017) (unpublished) (Wilson, Rosenbaum, Robreno) (Nationstar as transferee of US Bank’s $500,000 mortgage was not denied due process when the bankruptcy court sustained debtor’s objection to US Bank’s claim and then sustained the debtor’s objection to the debtor’s claim filed on behalf of Nationstar. Nationstar should have but didn’t challenge the default order that US Bank was unable to produce the mortgage or note and would forfeit its lien if the debtor completed payments and received a discharge. Nationstar could not attack findings that US Bank did not have a secured claim by objecting after completion of payments and discharge to debtor’s motion to deem mortgage extinguished. Debtor scheduled Bank of America/US Bank as secured creditors. US Bank filed a proof of claim. Nationstar then filed a transfer of claim with respect to the US Bank claim. Debtor objected to US Bank’s claim. US Bank failed to respond, and objection was sustained in a court order stating that US Bank was not the holder of the note and mortgage and was not entitled to maintain any claim against the debtor. Debtor then filed a proof of claim on behalf of Nationstar under § 501(c) and filed an objection to that proof of claim asserting that Nationstar, as transferee of the note and mortgage previously held by Bank of America, was unable to prove its claim. Nationstar did not respond and the bankruptcy court sustained the debtor’s objection to the debtor’s proof of claim including a finding that any security interest claimed by Nationstar would be “void and ineffective” upon completion of payments and discharge. Nationstar did not appeal. After completion of payments and discharge, debtor moved for an order that deemed Nationstar’s mortgage extinguished. “[A]lthough the Debtor did not provide Nationstar with ‘perfect’ service of every document . . . Nationstar was nonetheless provided with notice reasonably calculated under all the circumstances to apprise Nationstar that its status as a secured creditor was being challenged. . . . [I]ts failure to act to protect its secured interest constituted a waiver of its secured rights. . . . A creditor like Nationstar, who participated in the confirmation process by filing the Transfer, must protect its secured status by responding
Meyer v. Northwest Tr. Servs. Inc., No. 15-35560, 2017 WL 4857606 (9th Cir. Oct. 26, 2017) (unpublished) (Tashima, Nguyen, Walter) (District court appropriately reversed bankruptcy court judgment for debtors in action against mortgagee and agents for violations of Washington Deed of Trust Act and Consumer Protection Act.).
Zipser v. Ocwen Loan Servicing (In re Zipser), 699 F. App’x 673 (9th Cir. Oct. 20, 2017) (unpublished) (Fernandez, Rawlinson, Smith) (Actual possession of note was sufficient to confer standing on Ocwen to file secured proof of claim.), aff’g No. CC-15-1258-FTaKu, 2016 WL 1168736 (B.A.P. 9th Cir. Mar. 23, 2016) (unpublished) (Faris, Taylor, Kurtz) (Servicer in possession of note endorsed in blank has standing to enforce note.), aff'g No. 9:14-bk-12827-PC, 2015 WL 4571678, at *4 (Bankr. C.D. Cal. July 28, 2015) (unpublished) (Carroll) (Objection to claim filed by Ocwen Loan Servicing overruled when Ocwen had physical possession of mortgage note endorsed in blank and deed of trust, and could enforce obligation under California law. Debtor's prior Chapter 7 discharge did not affect lien on property. "While discharge protects the Debtor from personal liability for the balance due under the Note, discharge did not extinguish the Deed of Trust lien on the Property securing the Note. Absent a final order or judgment declaring the lien unenforceable, Ocwen's Deed of Trust lien passed through [the] chapter 7 bankruptcy unaffected. . . . '[A] mortgage interest that survives the discharge of a debtor's personal liability is a "claim" within the terms of § 101(5)' for which treatment must be provided in a chapter 13 plan. . . . The fact that Ocwen reported to certain credit reporting agencies that the Debtor's personal liability for payment of the debt evidenced by the Note was discharged in her chapter 7 case is not grounds to disallow Ocwen's Claim . . . . Claim . . . is based upon the Deed of Trust lien against the Property securing payment of the Note which passed through Debtor's chapter 7 bankruptcy unaffected.").
In re Merritt, No. 16-1864, 2017 WL 3327800 (3d Cir. Aug. 4, 2017) (unpublished) (Chagares, Vanaskie, Fuentes) (PNC was holder of note and mortgage entitled to file a proof of claim and to prosecute state court foreclosure; Freddie Mac may have been the owner of the note and mortgage but PNC still had standing to file a proof of claim as PNC succeeded by merger to National City’s rights as holder.).
Wells Fargo Bank, N.A. v. AMH Roman Two NC, LLC, 859 F.3d 295 (4th Cir. June 12, 2017) (Niemeyer, King, Duncan) (Wells Fargo is not entitled to Rule 60 relief from bankruptcy court order that cancelled its deed of trust. Wells Fargo waited more than two years to seek relief, and in the interim, the property was sold at foreclosure to an innocent purchaser.).
Koyle v. Sand Canyon Corp., No. 16-4035, 2017 WL 1192186 (10th Cir. Mar. 31, 2017) (unpublished) (Kelly, Briscoe, Lucero) (Chapter 13 debtor failed to raise or prove that foreclosure violated Utah's six-year statute of limitations after declaration of acceleration of mortgage.).
May v. Nationstar Mortg., LLC, 852 F.3d 806 (8th Cir. Mar. 29, 2017) (Wollman, Smith, Wright) (Nationstar’s “reprehensible” conduct and “reckless indifference” to Chapter 13 debtor’s rights justified $50,000 compensatory and $400,000 punitive damages for invasion of privacy. Nationstar incorrectly charged lender advances to mortgage, contacted debtor repeatedly at home and at work after warning, noticed foreclosure and failed to respond to debtor and debtor’s attorneys.).
Lau v. Bank of Am., N.A. (In re Lau), No. 16-2221, 2017 WL 1135722 (3d Cir. Mar. 27, 2017) (unpublished) (Restrepo, Scirica, Fischer) (Fraud claims against Bank of America, MERS and Fannie Mae with respect to title and assignments of debt were insufficient as a matter of law or were refuted by loan documents.).
Smither v. Ditech Fin., L.L.C., No. 16-20392, 2017 WL 958314 (5th Cir. Mar. 10, 2017) (unpublished) (Stewart, King, Dennis) (Ditech’s right to foreclose was not barred by four-year limitation on foreclosure actions under Texas law.).
Howes v. Wells Fargo Bank, N.A., No. 15-2332, 2017 WL 634708 (4th Cir. Feb. 16, 2017) (unpublished) (Niemeyer, Duncan, Wynn) (District court appropriately dismissed Chapter 13 debtor’s request for sanctions against banks for allegedly filing defective proofs of claim. Court of appeals took notice of bank’s report at oral argument that missing original note had been discovered.).
Lassberg v. Bank of Am., N.A., No. 15-40196, 2016 WL 4446074 (5th Cir. Aug. 23, 2016) (unpublished) (Stewart, Prado, Southwick) (Chapter 13 debtor’s broad attacks on liens and assignments by Wells Fargo, Bank of America, MERS and others are rejected.).
Ward v. AMS Servicing, LLC, No. 14-14052, 2015 WL 1432982 (11th Cir. Mar. 31, 2015) (unpublished) (Rosenbaum, Kravitch, Anderson) (When consent decree denying stay relief stipulated that monthly mortgage payment was $1,319.50, debtor is judicially estopped to sue mortgagee under FDCPA alleging mortgage payment was supposed to be $1,182.89.).
Tielke v. Bank of Am., N.A., No. 13-20425, 2014 WL 4366247, at *2-*3 (5th Cir. Sept. 4, 2014) (unpublished) (Reavley, Elrod, Southwick) (In suit under Texas Debt Collection Act against Bank of America concerning whether mortgage was in default after discharge in Chapter 13 case, summary judgment was inappropriate because of fact disputes with respect to forced homeowners insurance and application of payments from debtors before and after discharge. Debtors were discharged in April 2011. Plan required regular mortgage payments plus an additional amount to cure arrearages. In July 2011, BOA obtained forced homeowners insurance even though the debtors had homeowners insurance. BOA then recalculated mortgage payments to include an escrow amount for insurance and began making collection calls to the debtors. BOA claimed breach of the escrow agreement and an escrow shortage of over $5,000. "At bottom, . . . this case turns on whether the Tielkes were in default of their mortgage, either by failing to make payments or failing to maintain insurance . . . . [U]nclear is how the Tielkes allegedly came to be over $2000 in arrears if they had just been released from bankruptcy, which had included a plan to cover arrearages. . . . It is . . . unclear whether or how the Tielkes were delinquent on June 6 for payments due in April, May, and June 2011, and Bank of America is no help in explaining it. . . . [T]he Tielkes' submitted evidence from their insurance carriers showing that there had never been a lapse in coverage. . . . There are simply too many unanswered questions about the homeowners insurance, the Tielkes' mortgage payments, and the bank's application of the payments to justify summary judgment in this case at this time.").
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473 (2d Cir. July 11, 2014) (Kearse, Jacobs, Lynch) (RICO and ECOA actions fail because debtor did not produce evidence of pattern of racketeering or evidence of discrimination. TILA and fraud actions survive because of disputed facts.).
In re Spurlock, No. 14-1086, 2014 WL 1852961 (7th Cir. May 9, 2014) (unpublished) (Wood, Bauer, Rovner) (More than a year after acquiescing to stay relief and confirming plan that surrendered property to mortgagee, debtors not entitled to relief from order finding mortgage valid and allowing foreclosure to go forward.).
JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 1010 (8th Cir. July 9, 2013) (Bye, Melloy, Smith) (National Bank not registered to do business in Arkansas can use nonjudicial foreclosure procedures provided by Arkansas law—notwithstanding that other provisions of Arkansas law seem to require a bank to be "authorized to do business in this state" before using nonjudicial foreclosure.), aff'g 470 B.R. 829 (E.D. Ark. May 11, 2012) (Holmes) (National banking association was authorized to do business in state within meaning of Arkansas Statutory Foreclosure Act.).
Zulueta v. Bronitsky (In re Zulueta), No. 11-60060, 2013 WL 2242996 (9th Cir. May 22, 2013) (unpublished) (Leavy, Thomas, Murguia) (Deutsche Bank and its agent, OneWest Bank, had standing to assert claim as holder of note.), aff'g No. NC-10-1459-HPaJu, 2011 WL 4485621 (B.A.P. 9th Cir. Aug. 23, 2011) (unpublished) (Hollowell, Pappas, Jury) (Successor mortgage servicer established prudential standing to file proof of claim by appearing at hearing in possession of endorsed-in-blank note.).
Dysart v. BankTrust, No. 12-13653, 2013 WL 1578832 (11th Cir. Apr. 16, 2013) (unpublished) (Marcus, Martin, Kravitch) (Debtor failed to plead facts sufficient to establish that foreclosure sale violated RICO.).
Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 695 F.3d 360, 365-66 (5th Cir. Sept. 14, 2012) (Garza, Dennis, Higginson) (Certification of injunctive class under Federal Rule of Civil Procedure 23(b)(2) was appropriate with respect to Countrywide's practice of charging postpetition fees to Chapter 13 debtors without filing Bankruptcy Rule 2016 statement or seeking court approval. Distinguishing Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 609 F.3d 748 (5th Cir. June 18, 2010) (Reavley, Prado, Owen): "The bankruptcy court did not abuse its discretion when it concluded that Countrywide's fee charging actions in alleged derogation of Rule 2016(a) were generally applicable to the narrowly certified 'unapproved fees' class . . . . [T]his alleged common behavior towards all members of the class—'systematically ignor[ing] Rule 2016(a) by charging unauthorized fees'— . . . led to the class members allegedly being harmed in the same way. . . . Wilborn II . . . was exactingly adhered to by the bankruptcy court, which extensively applied Wilborn II's reasoning to redefine and narrow the instant class and proposed injunction and to deny class certification as to any damages. . . . The injunction being sought would target only the alleged Countrywide practice of viewing Rule 2016(a) as inapplicable to any fee assessed post-petition but charged post-discharge and, accordingly, any practice of never seeking approval of such fees under Rule 2016(a)."), aff'g No. 08-01004, 2010 WL 3943934 (Bankr. S.D. Tex. Oct. 5, 2010) (Isgur) (Reconsideration of order certifying class action for injunctive relief was denied. Rule 2016 is focus of class action. If injunctive relief is ultimately granted, Countrywide would be required to seek fees in accordance with rule.), denying reconsideration of 432 B.R. 671, 711 (Bankr. S.D. Tex. July 21, 2010) (Isgur) (Applying Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 609 F.3d 748 (5th Cir. June 18, 2010) (Reavley, Prado, Owen), class would not be certified for damages when damages for each purported class member must be determined on case-by-case basis; however, class was cohesive and united "when injunctive relief is the only relief requested." Under Federal Rule of Civil Procedure 23(b)(2), court certified class on claim for injunctive relief. Key issue was whether Countrywide Home Loans violated Bankruptcy Rule 2016(a) in fee collection practices.).
Miller v. Deutsche Bank Nat'l Trust Co. (In re Miller), 666 F.3d 1255, 1261 (10th Cir. Feb. 1, 2012) (Kelly, Porfilio, Matheson) (Neither Rooker-Feldman doctrine nor issue preclusion prevented federal court from determining whether Deutsche Bank had standing to seek stay relief. Although debtors raised standing defense to stay relief—similar to issue on which they lost in state court foreclosure action—it was now Deutsche Bank seeking affirmative relief in form of stay relief in federal court. "[A]ttempts merely to relitigate an issue determined in a state case are properly analyzed under issue or claim preclusion principles rather than Rooker-Feldman. This is because, in addition to the inherently limited scope of Rooker-Feldman, preclusion in federal court on the basis of a state-court judgment is determined by state law, not a federally-specified doctrine." No final judgment was entered in state court on standing issue to which preclusion could attach. Key question concerning Deutsche Bank's status as party in interest is whether it was creditor with claim or right to payment. Applying Colorado UCC, evidence that Bank had note endorsed in blank was not sufficient to establish that it was successor or holder of actual note. Bank must prove physical possession of note, transferred from endorsing party. Remand ordered to determine whether Deutsche Bank was party in interest entitled to seek stay relief.), after remand No. 10-25453-MER, 2012 WL 2953111 (Bankr. D. Colo. July 19, 2012) (Romero) (After remand, evidence reopened as to all issues relevant to stay relief, including whether Deutsche Bank was party in interest.).
In re Taylor, 655 F.3d 274, 278-79, 285-88 (3d Cir. Aug. 24, 2011) (Fuentes, Smith, Van Antwerpen) (Mortgage lender, attorney and law firm are sanctioned for inaccurate representations in stay relief motion and response to claim objection; Bankruptcy Rule 9011 reaches attorney's blind reliance on client's computer-generated misinformation. Only source of information for law firm representing HSBC Mortgage was NewTrak, a computer information system maintained by Lender Processing Services, Inc. (LPS). NewTrak automatically produced proofs of claim and triggered stay relief motions when system showed default. HSBC's attorney admitted that law firm had no direct access to actual loan information or to its client. Debtors, in long-running dispute with HSBC over force-placed flood insurance, continued to pay regular mortgage amount. HSBC's records, through NewTrak, did not reflect payments. "HSBC does not deign to communicate directly with the firms it employs in its high-volume foreclosure work; rather its uses . . . [the NewTrak system] . . . to assign individual firms discrete assignments and provide the limited data the system deems relevant to each assignment. The firms are selected and the instructions generated without any direct human involvement. The firms so chosen generally do not have the capacity to check the data (such as the amount of mortgage payment or time in arrears) provided to them by NewTrak and are not expected to communicate with other firms that may have done related work on the matter. Although it is technically possible for a firm hired through NewTrak to contact HSBC to discuss the matter on which it has been retained, it is clear from the record that this was discouraged and that some attorneys, including at least one Udren Firm attorney, did not believe it to be permitted." HSBC's attorney only proofread stay relief motion, failing to verify information about delinquency. Response to claim objection was factually incorrect. Requests for admissions contained falsehoods. Rule 9011(b)(3) mandates certification that representations to court have evidentiary support, requiring reasonable inquiry by attorney. Attorney should rely on client-provided information only when superficially plausible and client records confirm accuracy. "NewTrak system, as it was being used at the time of this case, permits parties at every level of the filing process to disclaim responsibility for inaccuracies. HSBC has handed off responsibility to a third-party maintainer, LPS, which, judging from the results in this case, has not generated particularly accurate records. LPS apparently regards itself as a mere conduit of information. Appellees, the attorneys and final link in the chain of transmission of this information to the court, claim reliance on NewTrak's records. Who, precisely, can be held accountable if HSBC's records are inadequately maintained, LPS transfers those records inaccurately into NewTrak, or a law firm relies on the NewTrak data without further investigation, thus leading to material misrepresentations to the court? It cannot be that all the parties involved can insulate themselves from responsibility by the use of such a system. In the end, we must hold responsible the attorneys who have certified to the court that the representations they are making are 'well-grounded in law and fact.'. . . We appreciate that the use of technology can save both litigants and attorneys time and money, and we do not, of course, mean to suggest that the use of databases or even certain automated communications between counsel and client are presumptively unreasonable. However, Rule 11 requires more than a rubber-stamping of the results of an automated process by a person who happens to be a lawyer. Where a lawyer systematically fails to take any responsibility for seeking adequate information from her client, makes representations without any factual basis because they are included in a 'form pleading' she has been trained to fill out, and ignores obvious indications that her information may be incorrect, she cannot be said to have made reasonable inquiry."), aff'g in part, vacating in part, rev'g in part, No. 09-CV-2479-JF, 2010 WL 624909, at *3 (E.D. Pa. Feb. 18, 2010) (Fullam) (Sanctions against creditor's attorneys were not appropriate when debtors' counsel equally contributed to difficulty resolving mortgage payment status, and bankruptcy court intended sanctions to "send a message" about systemic problems concerning computer data information in mortgage disputes.), rev'g 407 B.R. 618, 638, 645, 650 (Bankr. E.D. Pa. Apr. 15, 2009) (Sigmund) HSBC Mortgage's handling of proofs of claim and stay relief motions is profoundly deficient in Chapter 13 cases. In a lengthy and fascinating account, the bankruptcy court explored HSBC's utilization of Lender Processing Services, Inc.'s (LPS's) system known as "NewTrak" to automatically file claims and trigger stay relief motions when debtors become 60 days delinquent. In this case, NewTrak produced incorrect information for the proof of claim, with incorrect note and balance attached to the claim, and incorrectly triggered stay relief motion when debtor was not in default. After debtor objected to HSBC's claim, creditor's attorney admitted lack of access to loan history and inability to contact client directly without use of NewTrak. Court ordered HSBC to provide accounting and full loan history, and U.S. trustee was invited to investigate and participate in discovery. Following findings were made: (1) HSBC effectively outsourced administration of its loan portfolio; (2) HSBC automatically referred bankruptcy matters to national law firm for filing of proofs of claim, and that firm prepared proofs of claim without consistently investigating accuracy; (3) through NewTrak, HSBC utilized local counsel to handle matters involving court appearances, but there was obvious lack of communication between local counsel and HSBC; (4) if local attorney inquired about objections to claim or other contested issues, inquiry request was triggered through NewTrak, which was supposedly monitored by clerical people charged with directing response back through NewTrak, but system had not worked in this case; (5) 60-day postpetition loan payment delinquency automatically triggered NewTrak's referral to local counsel for filing stay relief motion, but motions tended to be boilerplate documents, identifying moving party and property and itemizing alleged defaults; (6) on debtor's objection to stay relief motion, local counsel had ineffective ways of communicating directly with HSBC even though "escalation procedure" allegedly existed; (7) stay relief motion in this case alleged 60-day default, when in fact debtors were only $360 short and disputed any delinquency, since $360 deficiency was related to disputed flood insurance requirement; and (8) bankruptcy court has subject matter jurisdiction over HSBC and its agents, including LPS, NewTrak, local and national counsel. "[W]here, as here, the debtor contests the relief sought, the flaws in this automated process becomes [sic] apparent. At this juncture, an attorney must cease processing files and act like a lawyer. That means she must become personally engaged, conferring with the client directly and abandoning her reliance on computer screens as expressions of her client's will. This did not happen in this case until the Court became involved. It should not have taken judicial intervention to bring the Claim Objection to its conclusion. Nor am I persuaded that HSBC's 'escalation procedure' whereby their counsel can contact them directly, is intended to prevent repetition of the difficulties experienced in this case. The procedure is at best discouraged and in this case, not communicated to the attorney who was handling that matter and appearing in court." Stay relief motion was prepared by paralegal and signed by attorney using NewTrak procedures based on incorrect facts. Barrier that NewTrak procedures established between attorney and client communications "is contrary to the Model Rules of Professional Conduct. Rule 1.4 mandates that a lawyer shall reasonably consult with the client about the means by which the client's objectives are to be accomplished. HSBC has directed that the 'consultation' be indirect and electronic." Bankruptcy Rule 9011 was violated by counsel who prepared and signed proof of claim and stay relief motion without proper investigation. Although incorrect facts stated in pleadings appear to be mere negligence, signing proof of claim as HSBC's authorized representative without review crossed line into Rule violation. Local counsel failed to make reasonable inquiry before prosecuting and pursuing stay relief. Nonmonetary sanctions were appropriate: counsel was required to obtain three credit hours of professional responsibility and ethics CLE; head of local law firm was ordered to train all bankruptcy department personnel in appropriate use of escalation procedures to allow direct contact with client and to train them on Rule 9011 requirements with respect to prefiling due diligence; and HSBC was ordered to "transmit by mail and e-mail a letter to all the Network Firms outlining the escalation policy and encourage its use consistent with Rules of Professional Conduct. HSBC should also advise the Network Firms that use of direct contact will not adversely affect the firm. The letter will be accompanied by a copy of this Opinion." Sanctions against LPS were not warranted.).
Wells Fargo Bank, N.A. v. Stewart (In re Stewart), 647 F.3d 553, 557-58 (5th Cir. July 22, 2011) (Higginbotham, Clement, Owen) (Individual Chapter 13 debtor lacks standing and bankruptcy court lacks jurisdiction to order Wells Fargo to audit every proof of claim it has filed in district and to provide complete loan history on every account. "This case involves only the estate of a single debtor . . . . There is no demonstrated likelihood that Ms. Stewart will ever again be subject to an incorrect proof of claim filed by Wells Fargo. . . . [M]isdeeds in other cases can be addressed by the judges in those cases. . . . We do not have a pattern of conduct that flouts a judicial ruling in subsequent cases.").
Jacks v. Wells Fargo Bank, N.A. (In re Jacks), 642 F.3d 1323, 1329-32 (11th Cir. June 7, 2011) (Martin, Cox, Black) (Recording $310 in attorney fees on "Customer Account Activity Statement" did not violate automatic stay when Wells Fargo took no additional collection action; assuming § 506(b) and Bankruptcy Rule 2016(a) are applicable, those provisions are not violated by merely recording costs. That Wells Fargo might attempt to collect the fees in the future was not ripe for adjudication. Citing Mann v. Chase Manhattan Mortgage Corp., 316 F.3d 1 (1st Cir. Jan. 17, 2003) (Boudin, Torruella, Cyr): "The mere recordation of fees incurred by Wells Fargo on its internal records, without any attempt to collect these fees from the debtor or estate or to modify the mortgage, is not an 'act' in violation of § 362(a)(3). . . . While the Jacks may face potential future liability for the charges under the terms of the mortgage, they have not offered any evidence that Wells Fargo has actually undertaken any act to modify the lien. . . . Assuming arguendo that § 506(b) and Rule 2016(a) require disclosure of postpetition fees in some circumstances, we hold those provisions are not violated when a creditor merely records costs it has incurred in association with a mortgagee's bankruptcy for internal bookkeeping purposes and makes no attempt to collect the fees or otherwise add them to the debtor's balance. . . . [W]e do not know whether the Jacks' bankruptcy will end in a discharge or a dismissal. . . . Wells Fargo represents on appeal that it will not seek to collect the charges if the Jacks successfully complete their Chapter 13 plan and receive a discharge. Although we are 'reluctant to accept mere bald assurances . . . it cannot be said with any confidence that [Wells Fargo's] collection efforts are inevitable.' . . . [A]n attempt to collect the undisclosed fees post-dismissal may present legal issues distinct from those raised by an attempt to collect post-discharge. Therefore, to the extent the Jacks' claims are based on events that may take place in the future, these claims are dismissed for lack of jurisdiction.").
Jared v. Keahey (In re Keahey), No. 09-60000, 2011 WL 288966 (9th Cir. Jan. 31, 2011) (unpublished) (Canby, Thompson, Berzon) (Mortgage holder committed tort of outrage by nonjudicial foreclosure sale without compliance with state law. The finding of outrageousness was based on misdeeds by the mortgage holder that included inappropriate demands for interest, excessive property taxes and other charges; substantial damages were awarded, but attorney fees award was remanded for redetermination under state law that limited recovery of fees.).
In re Rodriguez, 629 F.3d 136 (3d Cir. Dec. 23, 2010) (Sloviter, Barry, Smith) (Citing Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. Oct. 13, 2008) (Higginbotham, Stewart, Southwick), obligation in mortgage to fund escrow account was a prepetition debt that Countrywide could have included in its arrearage claim; on remand, bankruptcy court should determine whether increasing postpetition escrow payments to collect escrow shortage violated automatic stay.).
Martino v. Everhome Mortgage, No. 10-1247, 2010 WL 5209325 (3d Cir. Dec. 23, 2010) (unpublished) (Barry, Chagares, Vanaskie) (Class action complaint alleging overcharges by foreclosing mortgage company and its attorneys is dismissed because complaint fails to account for contract charges during three failed Chapter 13 cases.).
Ameriquest Mortgage Co. v. Nosek (In re Nosek), 544 F.3d 34, 43, 47, 48, 49 (1st Cir. Oct. 3, 2008) (Lipez, Merritt, Howard) (Assessment of $250,000 emotional distress and $500,000 punitive damages against Ameriquest Mortgage is reversed because failure to adequately distinguish and account for arrearage and ongoing mortgage payments did not violate any specific provision of the confirmed plan or of the Bankruptcy Code. "The bankruptcy court's reliance on § 105(a) was misplaced because there was no underlying violation of the Bankruptcy Code or a related court order that the court could enforce or remedy." Section 1322(b) provides optional plan provisions but does not impose any specific duty on creditors. Confirmed plan did not explicitly describe allocation of payments to Ameriquest debt. Combination of § 1322(b)(2) and (b)(5) permits debtors to split mortgage claims into ongoing mortgage debt and arrearages but Ameriquest's failure to adequately distinguish between arrearages and ongoing payments does not violate § 1322(b), since that section does not impose legal obligations on lenders. "The Plan language says nothing about how Ameriquest must account for pre- and post-petition payments during the course of the repayment period if payments are short, late, or not made at all. Simply put, the terms of the Plan itself do not provide the specificity required to invoke the enforcement authority of § 105(a). . . . Notwithstanding Nosek's failure to prove actual damages sufficient to sustain a [state statutory violation], the bankruptcy court concluded that Ameriquest's accounting practices violated Nosek's cure rights pursuant to § 1322(b) and her Chapter 13 Plan, providing a predicate for a damage award under § 105(a). In essence, the court found that Ameriquest's slowness in crediting Nosek's payments to the proper account and its failure to distinguish between pre- and post-petition payments constituted violations of the Bankruptcy Code and her Plan. This conclusion was erroneous. Although a debtor need not show proof of economic damages to establish that her cure rights had been violated, she must at least establish that her right to cure the pre-petition default provided by the Chapter 13 plan has been impaired or threatened by the creditor's actions. Nosek's subjective fear of such impairment, based on a document prepared by Ameriquest for internal purposes only, and in the absence of any evidence that the company regarded her as in default on the basis of its accounting practices, does not suffice. Indeed, Ameriquest stated that its internal records show that Nosek was considered current in her payment history. . . . [If debtor felt that her cure rights were being impaired,] the proper response of the bankruptcy court would have been an amendment to the Plan specifying the accounting practices necessary to eliminate that threat. . . . Only with such an amendment in place would the Plan support the imposition of remedies pursuant to § 105(a) if Ameriquest failed to comply with its terms. Absent that specificity, the court had no authority to order the award it did." Expressing sympathy for debtor's "predicament" and for bankruptcy court's concern that mortgage companies may not be properly allocating plan payments, the circuit Court concluded that "the bankruptcy court's legitimate concerns did not justify the remedy that it invoked." District court's judgment affirming bankruptcy court was vacated, and confirmation of plan was vacated. Bankruptcy court found fault with Ameriquest placing debtors' disputed payments in suspense account and not applying those payments properly as violating Ameriquest's duty of good faith and fair dealing under § 1322(b). District court had remanded to bankruptcy court after determination that good faith and fair dealing was state remedy that was improperly grafted onto § 1322(b), but held that § 105 provided remedy mechanism for violations of Bankruptcy Code. On remand, bankruptcy court applied § 105 to find that Ameriquest had violated § 1322(b) and terms of debtor's Chapter 13 plan. Since monetary award given to debtor exceeded amount of Ameriquest's claim, debtor then obtained confirmation of third amended plan offsetting damage award against Ameriquest's claim and requiring Ameriquest to pay balance of damage award to fund 100% of plan.).
, , ( ) () (Bankruptcy court appropriately dismissed adversary proceeding against mortgage holder when it dismissed Chapter 13 case based on judicial economy, fairness, convenience and comity.).
(Bankruptcy court appropriately cancelled contingent fee agreement, awarded fees of $70,000 based on lodestar analysis and cancelled any attorney lien claimed by “barely adequate” former counsel in BOA litigation.).
Kerrigan v. Bayview Loan Servicing, LLC (In re Kerrigan), No. WW-17-1271-KuTaB, 2018 WL 6006451 (B.A.P. 9th Cir. Nov. 7, 2018) (Kurtz, Taylor, Brand) (Bankruptcy court correctly determined that claim preclusion arising from district court litigation barred Chapter 13 debtor’s subsequent adversary proceeding against mortgagee and servicers.).
Bank of N.Y. Mellon v. Lane (In re Lane), 589 B.R. 399, 407–11 (B.A.P. 9th Cir. Sept. 26, 2018) (Brand, Spraker, Taylor) (Distinguishing HSBC Bank USA, N.A. v. Blendheim (In re Blendheim), 803 F.3d 477 (9th Cir. Oct. 1, 2015) (Paez, Bybee, Callahan), default disallowance of first mortgagee’s claim based on lack of standing to enforce the note was a substantive decision for purposes of lien voidance under § 506(d) but unlike Blendheim, debtor never disputed that he owed someone and disallowance of BONY’s claim did not include any finding or holding that the debt was not enforceable by someone else. Debtor did not serve any other entity and the underlying lien was still enforceable by that other lienholder notwithstanding disallowance of BONY’s claim in the Chapter 13 case. Bankruptcy court should not have voided lien under § 506(d) and should not have awarded debtor fees under California’s reciprocal attorney fee statute. Lane scheduled Bank of America as holding the first-position mortgage on the debtor’s residence. BONY filed proof of claim for the first-position lien. The debtor objected arguing that BONY failed to establish that it was the entity entitled to enforce the debt. BONY failed to oppose the claim objection and a default order was entered disallowing the claim. Lane made no payments on the first lien during a five-year Chapter 13 case and BONY never moved for relief from stay. After plan completion and discharge, BONY moved for reconsideration of disallowance of its claim. The bankruptcy court denied that motion and sustained the debtor’s adversary proceeding with a judgment voiding the first deed of trust under § 506(d). “[T]he question of whether standing is a substantive or procedural objection has been addressed by only a few courts. However, those courts are unanimous in stating that it is a substantive objection under § 502(b)(1), which provides that a claim may be disallowed to the extent it is unenforceable against a debtor under any applicable law, including state law. . . . [A] challenge to a claimant’s standing is a substantive objection under § 502(b)(1), and not merely a procedural one, because it goes directly to the claimant’s ability to enforce the debt. . . . Thus, the bankruptcy court did not err in concluding that lack of standing is a substantive objection under § 502(b)(1). And it matters not that the Claim Disallowance Order was entered as a result of BONY’s default. . . . This is where we part company with the bankruptcy court’s decision. We conclude that Blendheim is not applicable . . . because the bankruptcy court never adjudicated the validity of the first-position lien and the underlying note in the Claim Disallowance Order. . . . Implicit in Blendheim’s analysis is a conclusion that § 506(d) should apply only when a claim disallowance addresses the merits of the underlying debt. . . . The bankruptcy court never judged the first-position lien to be invalid in substance, only that BONY lacked standing to enforce it. . . . [T]he ‘true’ lienholder never subjected itself to the bankruptcy court’s jurisdiction by filing a proof of claim; nor was this never-filed claim deemed disallowed. . . . In the Lien Avoidance action, Lane served only BONY and asked the court to avoid BONY’s first-position lien. . . . Lane failed to notice the proper lienholder of his intent to avoid the lien under § 506(d), and the bankruptcy court violated an unknown party’s due process rights by expunging its deed of trust without notice and an opportunity to be heard.”).
Singh v. Wells Fargo Bank, N.A. (In re Singh), No. NC-17-1217-FBTa, 2018 WL 2671444 (B.A.P. 9th Cir. June 5, 2018) (unpublished) (Faris, Brand, Taylor) (In tenth bankruptcy case in five years, jury verdict that invalidated prior foreclosure sale does not preclude Wells Fargo to commence new foreclosure. Bankruptcy court correctly determined that debtor’s claims are barred by preclusive effect of dismissal of identical litigation.), aff'g No. 16-04026, 2017 WL 2859754 (Bankr. N.D. Cal. July 3, 2017) (Lafferty) (In tenth bankruptcy case filed to stop foreclosure, claim preclusion bars most of debtor’s action against Wells Fargo; failure to tender outstanding loan balance bars state law causes of action.).
Sepehry-Fard v. Select Portfolio Servicing, Inc. (In re Evjenth), No. NC-17-1140-TaFB, 2018 WL 2671433 (B.A.P. 9th Cir. June 4, 2018) (unpublished) (Taylor, Faris, Brand) (Bankruptcy court correctly determined that it lacked jurisdiction to adjudicate third party’s claim that a mortgagee defrauded him as part of the sale of property in a Chapter 13 case. Appellant was not a debtor or creditor in the Chapter 13 case.).
Wilson v. Department of Transp. (In re Moore), No. NC-17-1114-BSTa, 2018 WL 1057834 (B.A.P. 9th Cir. Feb. 26, 2018) (unpublished) (Brand, Spraker, Taylor) (After 11 tag-team bankruptcies by debtor and someone named Wilson to whom the debtor transferred an interest in property several bankruptcies earlier, bankruptcy court lacked jurisdiction over Wilson’s complaint challenging a foreclosure that was validated by state court judgment more than 18 months before the debtor filed current Chapter 13 case.).
Burns v. Federal Nat’l Mortg. Ass’n (In re Burns), No. CC-17-1082-FLKu, 2018 WL 669175 (B.A.P. 9th Cir. Feb. 1, 2018) (unpublished) (Faris, Lafferty, Kurtz) (Bankruptcy court appropriately dismissed adversary proceeding against FNMA when state court had entered judgment for possession of mortgaged property and debtor’s issues with FNMA were better dealt with in state court after dismissal of underlying Chapter 13 case.).
Taylor v. James B. Nutter & Co. (In re Taylor), No. CC-16-1376-KuLTa, 2017 WL 3429029 (B.A.P. 9th Cir. Aug. 9, 2017) (unpublished) (Kurtz, Lafferty, Taylor) ($150,000 sanction awarded by bankruptcy court for delay by debtor and counsel in litigation over validity of reverse mortgage is reversed; inherent authority of bankruptcy court to sanction a party for litigation misconduct does not extend to one instance of delay by inaction.).
Yee v. Ditech Fin. LLC (In re Yee), No. NC-16-1237-JuFB, 2017 WL 3300607 (B.A.P. 9th Cir. Aug. 3, 2017) (unpublished) (Jury, Faris, Brand) (Debtor’s complaint that servicers committed fraud under 18 U.S.C. § 152 by repeatedly losing mortgage modification applications and lying about dual tracking of foreclosure was properly dismissed because there is no private right of action under 18 U.S.C. § 152.).
Ravago v. Bank of Am. (In re Ravago), No. AZ-16-1005-LBJu, 2017 WL 2665032, at *6
Rivera v. Deutsche Bank Nat’l Trust Co. (In re Rivera), No. 5:14-54193, 2016 WL 5868693 (B.A.P. 9th Cir. Oct. 6, 2016) (Kirscher, Taylor, Jury) (Servicer appropriately applied payments to negatively amortizing loan; servicer’s advances under the pooling and servicing agreements did not affect debtors’ obligations.), aff'g No. 14-54193, 2015 WL 1515572 (Bankr. N.D. Cal. Mar. 30, 2015) (Hammond) (Master servicer's obligation under pooling and servicing agreement to advance funds in event borrower defaulted on payments did not make master servicer a guarantor under the note and did not relieve or reduce debtors' obligations under note.), remanded by No. NC-13-1615-KuPaJu, 2014 WL 6675693 (B.A.P. 9th Cir. Nov. 24, 2014) (unpublished) (Kurtz, Pappas, Jury) (In challenge to claim based on note and deed of trust that passed from Washington Mutual through the FDIC to Chase and eventually to Deutsche Bank, challenge to Deutsche Bank's lien and TILA action based on failure to give notice of assignment survive motion to dismiss.).
Velasquez v. Bank of Am. N.A (In re Velasquez), No. 3:14-BK-30344, 2016 WL 4257899 (B.A.P. 9th Cir. Aug. 9, 2016) (unpublished) (Taylor, Jury, Kirscher) (Debtor failed to overcome prima facie validity of BOA’s proof of claim for mortgage arrearages; that debtor made a substantial postpetition payment to BOA did not change the amount of the arrearage claim as of the petition.).
Hernandez v. Wells Fargo Bank, N.A. (In re Hernandez), No. NC-15-1044-TaDJu, 2015 WL 6736698 (B.A.P. 9th Cir. Nov. 3, 2015) (unpublished) (Taylor, Dunn, Jury) (Adversary proceeding challenging mortgagee's standing to assert secured claim is dismissed because of "poorly written and largely nonsensical" brief on appeal; on the merits, name changes, mergers and transfers of debt are not fraudulent as to borrower.).
Turner v. Wells Fargo Bank, N.A. (In re Turner), No. NC-14-1139-KiTaD, 2015 WL 3485876 (B.A.P. 9th Cir. May 26, 2015) (unpublished) (Kirscher, Taylor, Dunn) (Debtors lack standing to challenge validity of note and mortgage assignments based on any noncompliance with trust pooling and servicing agreement.).
Wegesend v. OneWest Bank, FSB (In re Wegesend), No. HI-14-1236-KuJuKi, 2015 WL 736017 (B.A.P. 9th Cir. Feb. 20, 2015) (unpublished) (Kurtz, Jury, Kirscher) (Bankruptcy court should have allowed debtors an opportunity for discovery before ruling that OneWest possessed the original note.).
Rivera v. Mortgage Elec. Registration Sys., Inc. (In re Rivera), BAP No. CC-13-1505-KuPaTa, 2014 WL 7331082 (B.A.P. 9th Cir. Dec. 23, 2014) (unpublished) (Kurtz, Pappas, Taylor) (Chapter 13 debtor cannot challenge mortgagee's right to foreclose based on failure or success of securitization process or by demanding an advanced judicial determination of the enforceability of the underlying note.).
Del Toro Loan Servicing, Inc. v. Takowsky (In re Takowsky), Nos. CC-13-1376-TaSpD, CC-13-1386-TaSpD, 2014 WL 5861379 (B.A.P. 9th Cir. Nov. 12, 2014) (unpublished) (Taylor, Dunn, Spraker) (BAP affirms damage award of $312,606.49 based on Chapter 13 debtor's loss of equity in property after wrongful foreclosure by loan servicer. Bankruptcy court had authority to enter final judgment based on servicer's consent. Servicer was equitably estopped to claim that debtor's tender of arrearage amount barred servicer from proceeding with foreclosure when servicer misled debtor to believe that tendering arrearage would stop the foreclosure.).
Mullin v. Wells Fargo Bank, N.A. (In re Mullin), No. NC-13-1400-JuKuPa, 2014 WL 5840364, at *8 (B.A.P. 9th Cir. Nov. 10, 2014) (unpublished) (Jury, Jurtz, Pappas) (Debtors failed to state a cause of action for wrongful foreclosure when evidence was conclusive that "World Savings Bank became Wachovia, which was merged into Wells Fargo. WFB was the holder of the note and had a right to enforce the DOT after the merger with World Savings.").
U.S. Bank Nat'l Ass'n v. Blais (In re Blais), 512 B.R. 727 (B.A.P. 1st Cir. July 8, 2014) (Feeney, Bailey, Hoffman) (Remand necessary for bankruptcy court to determine effect under Maine law of recorded notice of lawsuit to reform erroneous property description in mortgage.).
Sihabouth v. Bank of N.Y. Melon (In re Sihabouth), No. EC-13-1378-JuTaKu, 2014 WL 2978550, at *6 (B.A.P. 9th Cir. July 2, 2014) (unpublished) (Jury, Taylor, Kurtz) (Confirmation of plan that did not provide for mortgage and that allowed mortgaged property to revest in debtors divested bankruptcy court of subject matter jurisdiction to consider postconfirmation adversary proceeding challenging mortgagee's standing to enforce the note. "The bankruptcy court did not have jurisdiction over the claim-objection adversary proceeding . . . because debtors' challenge to BONY's ownership of the debt came after confirmation of their [plan]. At that point, pursuant to the terms of their confirmed plan, the real property . . . revested in debtors. . . . Because debtors elected to have the property revest, BONY's claim was not against the bankruptcy estate, and thus the claim-objection adversary proceeding did not involve a right created by bankruptcy law or arising only in bankruptcy. . . . [W]hether or not the bankruptcy court allowed or disallowed BONY's POC based on the claims asserted in the adversary, the outcome could not conceivably have had an affect [sic] on debtors' estate.").
Sitanggang v. McIntyre (In re Sitanggang), No. CC-12-1418-TaPaKi, 2013 WL 5737703 (B.A.P. 9th Cir. Oct. 22, 2013) (Taylor, Pappas, Kirscher) (Foreclosure-related claims in adversary proceeding were mooted by completion of foreclosure and expiration of redemption period while appeal was pending; FDCPA claims in adversary proceeding survive dismissal of case, but bankruptcy court appropriately declined to exercise jurisdiction.).
Melo v. GMAC Mortg., LLC (In re Melo), 496 B.R. 253 (B.A.P. 1st Cir. Aug. 13, 2013) (Haines, Deasy, Godoy) (Dismissal of underlying Chapter 13 case moots appeal of summary judgment for mortgagee in adversary proceeding alleging breach of commitment to modify mortgage.).
Nordeen v. Bank of Am., N.A. (In re Nordeen), 495 B.R. 468 (B.A.P. 9th Cir. Aug. 9, 2013) (Dunn, Kirscher, Collins) (Securitization did not satisfy loan or otherwise defeat enforcement of note and mortgage. Causes of action under TILA, RICO, FDCPA, fraud and other theories all failed.).
Hall v. North Am. Mortg. Co. (In re Hall), No. WO-12-084, 2013 WL 3786783 (B.A.P. 10th Cir. July 22, 2013) (unpublished) (Cornish, Nugent, Romero) (Abstention appropriate in debtors' adversary proceeding against mortgage lenders and servicers alleging wrongful foreclosure and related causes of action when state court rejected same causes of action in prebankruptcy foreclosure litigation.).
Bello v. Chase Home Fin. LLC (In re Bello), No. SC-11-1541-JuBaPa, 2013 WL 2367796 (B.A.P. 9th Cir. May 30, 2013) (unpublished) (Jury, Bason, Pappas) (Substitution of trustee was valid under California law notwithstanding that the assignment of deed of trust to Chase was executed one day after Chase executed substitution of trustee.).
Simpson v. Deutsche Bank Nat'l Trust Co. (In re Simpson), No. CC-12-1445-MkTaJu, 2013 WL 2350967 (B.A.P. 9th Cir. May 29, 2013) (unpublished) (Markell, Taylor, Jury) (Deutsche Bank had standing to file claim based on possession of note endorsed in blank.).
Knigge v. SunTrust Mortg., Inc. (In re Knigge), 479 B.R. 500 (B.A.P. 8th Cir. Oct. 1, 2012) (Kressel, Schermer, Nail) (Possession of note endorsed in blank rendered bank a "person entitled to enforce note"; debtor was judicially estopped to contend otherwise when bank was scheduled as a secured creditor in current and prior Chapter 13 cases and confirmed plans in both cases acknowledged bank's security interest and did not preserve right to contest that status.), aff'g 472 B.R. 808 (Bankr. W.D. Mo. 2012) (Venters) (Judicial estoppel barred debtors from challenging SunTrust's standing to enforce note and mortgage when debtors had scheduled SunTrust Mortgage as undisputed secured claim in two prior cases. SunTrust was in possession of note and had right to enforce payment.).
Allen v. US Bank, Nat'l Ass'n (In re Allen), 472 B.R. 559 (B.A.P. 9th Cir. June 8, 2012) (Pappas, Dunn, Hollowell) (Applying Veal v. American Home Mortgage Servicing, Inc. (In re Veal), 450 B.R. 897 (B.A.P. 9th Cir. June 10, 2011) (Markell, Kirscher, Jury), bank was "person entitled to enforce" mortgage based on lost note affidavit and copy of original note endorsed in blank.).
Cedano v. Aurora Loan Servs., LLC (In re Cedano), 470 B.R. 522 (B.A.P. 9th Cir. Apr. 17, 2012) (Hollowell, Kirscher, Markell) (Deed of trust sufficiently designated MERS as beneficiary and nominee, with authority to exercise lender's rights.).
Cedano v. Aurora Loan Servs., LLC (In re Cedano), 470 B.R. 522 (B.A.P. 9th Cir. Apr. 9, 2012) (Hollowell, Kirscher, Markell) (MERS had authority to conduct nonjudicial foreclosure under California law; transfer of note did not upset MERS authority to foreclose as nominee under deed of trust.).
Coleman v. American Home Mortg. Servicing, Inc. (In re Coleman), No. AZ-11-1265-KiWiJu, 2012 WL 603730 (B.A.P. 9th Cir. Feb. 3, 2012) (unpublished) (Kirscher, Williams, Jury) (After multiple litigations in state and federal court, district court judgment was preclusive of debtor's claims in adversary proceeding that mortgage servicer had committed various misdeeds in mortgage foreclosure and subsequent detainer action.).
Banks v. Kondaur Capital Corp. (In re Banks), 457 B.R. 9, 12 (B.A.P. 8th Cir. Oct. 11, 2011) (Venters, Federman, Saladino) (Material issue of fact remains with respect to whether mortgage creditor has possession of original promissory note in debtors' action challenging standing of mortgage holder. "[T]he promissory note the Debtors executed in favor of [New Century Mortgage Corp.] has not been specifically endorsed to [Kondaur Mortgage Corp.]; it is endorsed in blank. Accordingly, it is a 'bearer' note, which requires actual possession of the note to enforce or negotiate it. The Debtors raised the issue of whether Kondaur is the proper party to enforce the note and cast further doubt on Kondaur's standing . . . . [T]here is nothing in the record evidencing the location of the note.").
Correia v. Deutsche Bank Nat'l Trust Co. (In re Correia), 452 B.R. 319 (B.A.P. 1st Cir. June 30, 2011) (Haines, Votolato, Deasy) (Chapter 13 debtors lack standing to challenge postpetition foreclosure based on defect in mortgage assignment between IndyMac and Deutsche Bank; debtors are not parties to Pooling and Servicing Agreement and cannot attack state court foreclosure based on breach of that contract.).
Veal v. American Home Mortgage Servicing, Inc. (In re Veal), 450 B.R. 897, 919-22 (B.A.P. 9th Cir. June 10, 2011) (Markell, Kirscher, Jury) (BAP remands debtors' objection to proof of claim for findings of fact with respect to servicer's standing to file claim on behalf of Wells Fargo. "AHMSI apparently conceded that Wells Fargo held the economic interest in the Note, as it filed the proof of claim asserting that it was Wells Fargo's authorized agent. . . . AHMSI presented no evidence showing any agency or other relationship with Wells Fargo and no evidence showing that either AHMSI or Wells Fargo was a 'person entitled to enforce' the Note. . . . [W]e have found nothing in the record that establishes AHMSI's standing to file the proof of claim. . . . None of the documents attached to the parties' papers show that AHMSI was the servicing agent of Wells Fargo, let alone a servicing agent of a 'person entitled to enforce' the Note. When debtors . . . challenge an alleged servicer's standing to file a proof of claim regarding a note governed by Article 3 of the UCC, that servicer must show it has an agency relationship with a 'person entitled to enforce' the note that is the basis of the claim. If it does not, then the servicer has not shown that it has standing to file a proof of claim. . . . Wells Fargo (or AHMSI as Wells Fargo's servicer) must be a 'person entitled to enforce' the Note in order to qualify as a creditor (or creditor's agent) entitled to file a proof of claim. . . . AHMSI presented no evidence as to who possessed the original Note. It also presented no evidence showing indorsement of the note either in its favor or in favor of Wells Fargo, for whom AHMSI allegedly was servicing the Veal Loan. Without establishing these elements, AHMSI cannot establish that it is a 'person entitled to enforce' the Note. . . . On remand, the determination of who is the 'person entitled to enforce' the Note, and of AHMSI's alleged authorization to service the Veal Loan, may necessitate an evidentiary hearing.").
Miller v. Deutsche Bank Nat'l Trust Co. (In re Miller), No. CO-10-073, 2011 WL 1807015, at *5 (B.A.P. 10th Cir. May 12, 2011) (unpublished) (Cornish, Nugent, Somers) (After state court determined that Deutsche Bank had standing to pursue foreclosure, Rooker-Feldman doctrine prevented bankruptcy court review of standing to seek stay relief. "Whether Deutsche Bank was the proper party in interest to bring the foreclosure action was the question twice asked and answered by the state court. A ruling on the merits of the Debtors' objections on standing by the bankruptcy court would have amounted to impermissible appellate review of the state court's decision. Because inferior federal courts lack the power to review valid state court judgments, the bankruptcy court properly declined to revisit the state court's decision that Deutsche Bank was an 'interested person' entitled to . . . order of sale.").
Knowles v. Bayview Loan Servicing, LLC (In re Knowles), 442 B.R. 150 (B.A.P. 1st Cir. Jan. 3, 2011) (Feeney, Tester, Bailey) (Complaint against mortgage servicer failed to state RESPA claims because loan by private lender was not federally related mortgage loan; mortgage servicer did not violate automatic stay by filing proof of claim, by sending written statements or by responding to debtor's request for payoff amount.).
In re Gallardo, No. AZ-09-1405-KiJuMk, 2010 WL 6259991 (B.A.P. 9th Cir. Sept. 17, 2010) (unpublished) (Kirscher, Jury, Markell) (Order denying motion to employ "mortgage audit firm" in litigation with mortgage creditor was not final or appealable.).
Doral Mortgage Corp. V. Selenia (In re Selenia), No. PR 99-006, 2001 WL 36381916, at *4 (B.A.P. 1st Cir. Mar. 7, 2001) (Votolato, Vaughn, Deasy) ("[T]he bankruptcy judge's order directing [Doral Mortgage Corp.] to refund all mortgage payments made by the Debtor after the date of the foreclosure sale, without notice to Doral that he intended to consider that issue, and without giving Doral an opportunity to be heard on the issue, amounted to a denial of due process. Doral was entitled to, but did not receive its day in court on the related issues of refunding mortgage payments and offset for the Debtor's use and occupancy.").
Zarrilli v. FDIC (In re Zarrilli), No. MB 99-022, 2000 WL 35915914 (B.A.P. 1st Cir. Apr. 19, 2000) (Votolato De Jesus, Vaughn) (In Chapter 13 case filed in 1999, debtor's challenge to foreclosure sale in 1975 in related Chapter 11 case is barred by multiple interim decisions by state and federal courts.).
JPMorgan Chase Bank, Nat’l Ass’n v. DeGuiseppi, No. 1:18-cv-1457, 2019 WL 1724629, at *2–*3 (C.D. Ill. Apr. 18, 2019) (McDade) (Applying mortgage contract and RESPA, bankruptcy court miscalculated escrow shortage when it sustained debtor’s objection to proof of claim and attachment 410A. “Federal Rule of Bankruptcy Procedure 3001(c)(2)(C) provides ‘[i]f an escrow account has been established in connection with [a] claim . . . an escrow account statement prepared as of the date the petition was filed and in a form consistent with applicable nonbankruptcy law shall be filed with the attachment to the proof of claim.’ The applicable nonbankruptcy law, the Real Estate Settlement Procedures Act (RESPA) and its implementing regulation, Regulation X, allow servicers to ‘issue a short year annual escrow statement’ in such circumstances, which resets the computation year. . . . [T]he Bankruptcy Court calculated the total arrearage from missed escrow payments rather than the projected escrow shortage, which is a technical and complex calculation detailed in RESPA and its implementing regulations. . . . The Court concludes projected escrow shortages may constitute prepetition claims. . . . RESPA allows a claim for a projected escrow shortage at the time it is calculated, not only when a shortage occurs, indicating in this context it can be a prepetition claim. The Instructions for Mortgage Proof of Claim Attachment (Official Form 410A) support this interpretation; they state the total prepetition arrearage should include the projected escrow shortage. . . . As a contractual matter, therefore, Appellant had a right to collect the full cushion allowed by RESPA (less the amount that would have been based on the private mortgage insurance premium) as well as any projected escrow shortage. . . . Appellant’s calculations appear to be in accord with Official Form 410A, and the Court does not see error in their ultimate result.”).
Silvester v. Selene Fin., LP, No. 7:18-cv-02425 (NSR), 2019 WL 1316475 (S.D.N.Y. Mar. 21, 2019) (Román) (Class action against Selene Finance for charging inspection fees in violation of RICO, FDCPA and various other state and federal statutes is dismissed without prejudice when complaint failed to plead predicate offenses or fraud with specificity for RICO purposes, Selene is not a debt creditor for FDCPA purposes and billing for inspections that were not necessary or perhaps that did not actually occur is not fraudulent when mortgage allows inspections without limitations.).
Maddox v. Wells Fargo Bank, N.A., No. 17-cv-2634 (CRC), 2019 WL 1082572 (D.D.C. Mar. 7, 2019) (Cooper) (District court rejects Chapter 13 debtor’s claims that Wells Fargo improperly refused loss mitigation application. Rooker-Feldman doctrine bars debtor’s argument that Wells Fargo improperly bid in property at foreclosure after failed Chapter 13 case.).
Fuhrman v. Wilmington Sav. Fund Soc’y, FSB (In re Fuhrman), No. 17-02109-dob, 2019 WL 521209 (E.D. Mich. Feb. 11, 2019) (Ludington) (District court accepts recommendation by bankruptcy court that debtor’s RESPA and FDCPA claims be dismissed. Debtor was not obligated on note secured by mortgage on property owned by debtor and lacked standing under RESPA. Debtor offered insufficient evidence of any harassment or abusive collection practice for purposes of FDCPA.).
Genrette v. Bank of N.Y. Mellon Tr. Co. (In re Genrette), No. 18-920-MN, 2018 WL 6696048 (D. Del. Dec. 20, 2018) (Noreika) (Chapter 13 debtor’s emergency motion for temporary injunction to stop foreclosure is denied when debtor defaulted in payments to mortgagee during Chapter 13 case then defaulted in payments to cure the defaults after mortgagee moved for stay relief. Debtor then negotiated loan modification that would have resolved the postpetition defaults but debtor objected to loan modification after agreeing to terms.).
Cole v. MidFirst Bank, No. 5:18-mc-01402-RDP, 2018 WL 6504433, at *3 (N.D. Ala. Dec. 11, 2018) (Proctor) (Withdrawal of reference is mandatory with respect to Chapter 13 debtor’s adversary proceeding alleging that monthly mortgage statement sent by bank violated stay, was inconsistent with new CFPB regs and violated FDCPA. “[T]he undeniable influence of the CFPB and the FDCPA over Plaintiff’s claims means that resolution will necessarily involve a substantial and material consideration of non-Code federal laws. Consequently, the court must withdraw the reference.”).
Lee v. Select Portfolio Servicing, Inc. (In re Lee), No. CV 18-6851-JFW, 2018 WL 7501124 (C.D. Cal. Dec. 7, 2018) (Walter) (After dismissal of most recent Chapter 13 case in a series of cases filed to stop foreclosure, bankruptcy court appropriately retained jurisdiction to dismiss with prejudice debtor’s adversary proceeding challenging the mortgage.).
Cortez v. Second Chance Home Loans, LLC, No. 2:18-cv-01896 WBS EFB, 2018 WL 6216426 (E.D. Cal. Nov. 28, 2018) (Shubb) (A Chapter 13 debtor’s complaint in 2018 that banks and servicer botched mortgage modification in 2012 is dismissed because defendants did not owe debtors any duty for negligence purposes and debtors alleged no damages under other statutory causes of action.).
Ayati-Ghaffari v. JP Morgan Chase Bank, N.A., No. 4:18-CV-00617-ALM-CAN, 2018 WL 6737415 (E.D. Tex. Oct. 12, 2018) (Nowak) (Magistrate judge recommends granting remand of state court litigation improperly removed to district court by Chapter 13 debtor.).
Perez v. Deutsche Bank Nat’l Tr. Co., No. 4:17-CV-839-A, 2018 WL 4853897 (N.D. Tex. Oct. 5, 2018) (McBryde) (Chapter 13 debtors are judicially estopped to litigate RESPA, TILA, FDCPA and state law claims against mortgagee after dismissal of Chapter 13 case when no causes of action were scheduled in two prior Chapter 13 cases and actions were inconsistent with orders in stay litigation in prior cases. Causes of action are also barred by statutes of limitation.).
Wheeler v. Wells Fargo Home Mortg., No. C18-5060 BHS, 2018 WL 4613165 (W.D. Wash. Sept. 26, 2018) (Settle) (Property purchased by Chapter 13 debtor for investment purposes was business property not subject to TILA and RESPA claims. FDCPA action against Wells Fargo fails because Wells Fargo is collecting its own debt.).
Mitchell v. Cenlar Capital Corp., No. 3:16-cv-814-WHB-JCG, 2018 WL 7254716 (S.D. Miss. Sept. 26, 2018) (Barbour) (Misconduct by mortgage creditor that occurred during prior Chapter 13 case is “trapped” in that closed case and cannot be remedied by debtors in subsequent Chapter 13 case. Debtors can amend schedules in second case to add claims against mortgage creditor that arose after completion of first case, to deal with estoppel arguments.).
In re Menjivar, No. CV 17-4090-DOC, 2018 WL 4616340 (C.D. Cal. Sept. 24, 2018) (Carter) (Bankruptcy court resolved debtor’s objection to mortgage claim with finding that debtor was 74 payments in arrears for total arrearage of $212,139.92. Underlying note allowed Wells Fargo to add unpaid interest to principal. Wells Fargo correctly calculated amount recharacterized as principal. Chapter 7 discharge did not affect Wells Fargo’s right to foreclose and separate, pending Chapter 11 case did not preclude appeal of order fixing amount of mortgage claim and dismissing Chapter 13 case.).
In re Moniello, No. 3:17-cv-01801 (SRU), 2018 WL 4405611 (D. Conn. Sept. 17, 2018) (Underhill) (Attorney for Wells Fargo was appropriately sanctioned for misrepresenting in a motion for stay relief that Wells Fargo was the owner of property that Wells Fargo had sold to a third party a month before.).
Howard v. Wells Fargo Home Mortg., No. 3:11-cv-116, 2018 WL 4182007 (S.D. Ohio Aug. 31, 2018) (Rice) (Adopting recommendation of magistrate judge, Chapter 13 debtor is judicially estopped to pursue mortgagee based on failure to disclose causes of action during Chapter 13 case.).
Moreno v. U.S. Bank N.A., No. 17-cv-02850-CMA-MJW, 2018 WL 3820071 (D. Colo. Aug. 10, 2018) (Arguello) (Confirmation of Chapter 13 plan that cured default and maintained payments with respect to mortgage judicially estops debtor to later contend that collection of mortgage debt is barred by six-year statute of limitations under Colorado law.).
Lucore v. U.S. Bank, N.A. (In re Lucore), No. 17cv34-JAH (JLB), 2018 WL 3752860 (S.D. Cal. Aug. 6, 2018) (Houston) (Bankruptcy court appropriately abstained in Chapter 13 debtor’s adversary proceeding challenging a state court foreclosure when pro se debtors had litigated the same issues in numerous state court actions and appeals.).
Roes v. Specialized Loan Servicing, LLC, No. 1:17-cv-00246, 2018 WL 3636543 (E.D. Tenn. July 31, 2018) (Reeves) (Chapter 13 debtor’s complaint against loan servicer fails under RESPA, TILA, FDCPA and related state and federal causes of action. Servicer is not a debt collector for FDCPA purposes because loan was being paid through plan when servicer acquired servicing rights. Debtor later defaulted and never cured the default.).
Shoemake v. SN Servicing Corp., 586 B.R. 741, 742–45 (M.D. Tenn. July 12, 2018) (Crenshaw) (Disallowance of mortgage servicer’s proof of claim because the claim was filed by an entity that was not identified or connected to the loan by any of the attachments was a “procedural” disallowance tantamount to the failure of the actual mortgagee to file a proof of claim, and as a result, the lien was unaffected by disallowance and can be collected by successor servicer after completion of payments and discharge without violating automatic stay, confirmed plan or discharge injunction. Section 506(d) was not implicated because the mortgage claim was not disallowed on the merits and the real mortgage holder never filed a proof of claim
Lowe v. Wells Fargo Bank, N.A., No. 3:18cv00126 (REP), 2018 WL 3748418 (E.D. Va. July 9, 2018) (Young) (Chapter 13 debtor’s complaint against Wells Fargo under RESPA and various other theories based on a botched loan modification is dismissed in large part based on judicial estoppel when debtors failed to reveal the action during their Chapter 13 case. Some claims survive, including claim that Wells improperly charged force-placed insurance and the debtors’ claim that Forms 1099 issued by Wells with respect to the National Mortgage Settlement were improper.).
Davis v. Specialized Loan Servicing, LLC, No. 3:17-cv-787, 2018 WL 3352647 (E.D. Va. July 9, 2018) (Payne) (Chapter 13 debtor’s mostly incomprehensible claims against mortgagee and servicer for fraud, dual tracking, violations of FDCPA and other theories are dismissed with leave to amend.).
Strong v. Caliber Home Loans, Inc., No. 8:17-CV-485, 2018 WL 3321438 (D. Neb. July 5, 2018) (Gerrard) (Chapter 13 debtor’s “vexatious” challenge to mortgagee is dismissed. HSBC has standing to foreclose and other causes of action are unsupportable.).
Hackett v. Wells Fargo Bank, N.A., No. 2:17-cv-7354-CAS(ASx), 2018 WL 3197698 (C.D. Cal. June 25, 2018) (Snyder) (Chapter 13 debtor’s claims against Wells Fargo for violations of Equal Credit Opportunity Act and for unfair business practices under California law survive dismissal based on allegations that Wells Fargo failed to process loan modification applications.).
Morales v. Ocwen Loan Servicing, LLC, No. 3:17-cv-00979-JD, 2018 WL 3093440 (N.D. Cal. June 22, 2018) (Donato) (Chapter 13 debtor is judicially estopped to challenge validity of first mortgage when debtor asserted validity of first mortgage as basis for stripping junior mortgage and did not schedule potential action to void first mortgage.).
Goguette v. U.S. Bank Nat’l Ass’n, No. 1:15-CV-03826-TWT-CMS, 2018 WL 4214419 (N.D. Ga. June 18, 2018) (Salinas) (Pro se complaint by Chapter 13 debtor for wrongful foreclosure and violation of automatic stay should be dismissed because complaint does not allege any defect in notice of foreclosure or even that a foreclosure actually occurred and all events alleged occurred after the stay expired because plaintiff’s Chapter 13 case had been dismissed.).
Galvez v. Wells Fargo Bank, N.A., No. 17-cv-06003-JSC, 2018 WL 2761917, at *4 (N.D. Cal. June 7, 2018) (Corley) (Claims against Wells Fargo for botching loan modification applications are not barred by judicial estoppel because the claims arose after the Chapter 13 petition and debtor amended schedules to reveal the claims during the case. However, debtor failed to adequately allege violations of state and federal law and causes of action arising out of the loan modification process are dismissed. “The Ninth Circuit has held that a ‘presumption of deliberate manipulation’ of the bankruptcy courts applies if a claim is omitted and the debtor does not ‘file[ ] amended bankruptcy schedules that properly list[ ] th[e] claim as an asset.’ . . . [T]his action arose while the bankruptcy action was pending and Plaintiff amended her bankruptcy schedules to list this action prior to the bankruptcy court taking any dispositive action on the bankruptcy petition. . . . Plaintiff corrected the error such that the ‘presumption of deliberate manipulation’ does not apply.”).
Rider v. Wells Fargo Bank, NA, No. 17-12702, 2018 WL 4524118 (E.D. Mich. June 6, 2018) (Grand) (Magistrate judge recommends dismissal of all but unjust enrichment claims by Chapter 13 debtor against Wells Fargo. Debtor is owner of property but not party to note or deed of trust. Chapter 13 plan paid Wells Fargo $75,000 on account of debt that was not debtor’s personal liability. Wells Fargo eventually foreclosed and when sued by debtor Wells Fargo claimed right to keep the money it was paid during the Chapter 13 case and keep the property it purchased at foreclosure. Debtor lacked standing to challenge foreclosure but unjust enrichment claim remains for trial.).
Akers v. Gregory Funding, LLC, No. 3:17-1470, 2018 WL 2363976 (M.D. Tenn. May 24, 2018) (Holmes) (Pro se Chapter 13 debtor’s effort to enjoin foreclosure is really a request for stay pending appeal of bankruptcy court orders denying confirmation and converting the case to Chapter 7; confirmation of plan in prior Chapter 13 case judicially estops debtor to deny mortgagee has standing to foreclose. Prebankruptcy transfer of property to stop foreclosure is evidence of bad faith.).
Schrupp v. Wells Fargo Bank, N.A., No. 2:16-636 WBS KJN, 2018 WL 2229264 (E.D. Cal. May 16, 2018) (Shubb) (Complaint against Wells Fargo based on failure to permanently modify mortgage during Chapter 13 case is dismissed because debtor could not prove that three required trial loan modification payments were made on time. Trustee may have had funds to make trial payments but first two disbursements were later than permitted by modification agreement.).
Ocwen Loan Servicing, LLC for Deutsche Bank Nat’l Tr. Co. v. Randolph, No. 18-21, 2018 WL 2220843 (W.D. Pa. May 15, 2018) (Conti) (District court denies untimely motion to extend time to move for rehearing of appeal of show-cause order requiring Ocwen to explain why it failed to comply with court orders to provide loan histories to Chapter 13 trustee after Ocwen confessed that it had wrongfully charged attorney fees for reviews of Chapter 13 plans.).
Tadros v. Wilmington Tr., Nat’l Ass’n, No. 3:17-cv-01623-AA, 2018 WL 2248453 (D. Or. May 15, 2018) (Aiken) (Failure to contest transfer of mortgage claim or to contest stay relief motion by transferee during Chapter 13 case precludes postdischarge complaint that transferee lacked authority to foreclose. Numerous other causes of action dependent on challenge to transfer of claim also fail.).
Bonakdar v. Ramos (In re Ramos), No. 17-04048-RFN, 2018 WL 2103218 (N.D. Tex. May 4, 2018) (McBryde) (Bankruptcy court correctly determined that foreclosure of lien was not barred by four-year limitation of actions under Texas law.).
Sumling v. Alridge Pite LLP, No. 1:18-CV-1151-TWT, 2018 WL 1937366 (N.D. Ga. Apr. 26, 2018) (Thrash) (Chapter 13 debtor’s mostly incomprehensible challenges to mortgagee’s standing to foreclose after stay relief are dismissed.).
McCallum v. Bank of Am., N.A. (In re McCallum), No. 17-5054, 2018 WL 1449147 (M.D. Ga. Mar. 22, 2018) (Smith) (Complaint to upset prepetition foreclosure sale fails because, under Georgia law, mailing of notice of foreclosure was effective even if never received by debtor.).
McNamara v. Wells Fargo Bank, No. CV-18-2131-MWF (AGRx), 2018 WL 1942711 (C.D. Cal. Mar. 15, 2018) (Fitzgerald) (Chapter 13 debtor’s application to district court for a temporary restraining order to stop dispossession by foreclosing mortgagee is denied because no service on defendant is certified and urgency of application is unknown.).
Ryan-Beedy v. Bank of N.Y. Mellon, 293 F. Supp. 3d 1101 (E.D. Cal. Feb. 22, 2018) (Shubb) (Claims of fraud, misrepresentation and various other causes of action against BNY Mellon, Ditech and others survive motions to dismiss based on allegations that defendants induced debtors to dismiss Chapter 13 case in exchange for loan modification but then “dual tracked” debtors into foreclosure. Negligence claims are dismissed because defendants owed no particular duty to debtors.).
Jackson v. Ocwen Loan Servicing, LLC, No. 3:17-cv-2387-G-BN, 2018 WL 1001859 (N.D. Tex. Jan. 8, 2018) (Horan) (Complaint alleging improper loan servicing by Ocwen during and after Chapter 13 case is dismissed in part, subject to amendment of some claims under Texas consumer protection statutes. Judicial estoppel does not bar any of the complaint because causes of action matured after completion of payments and discharge in the Chapter 13 case. Complaint states that Ocwen and U.S. Bank were paid in full through confirmed Chapter 13 plan and then initiated foreclosure claiming large sums due.), report and recommendation adopted by No. 3:17-CV-2387-G (BN), 2018 WL 949226 (N.D. Tex. Feb. 6, 2018) (Fish).).
Saccameno v. Ocwen Loan Servicing, LLC, No. 15 C 1164, 2017 WL 5171199, at *1
Capozio v. JP Morgan Chase Bank, NA, No. 16-5235, 2017 WL 5157532 (E.D. Pa. Nov. 7, 2017) (Alejandro) (Based on postdischarge loan modification agreement and letters from Chase, former Chapter 13 debtor’s complaint under Pennsylvania consumer protection statutes states claims for relief that Chase improperly accounted for mortgage payments as if insurance was included in escrow, which resulted in inappropriate late charges and other penalties. FDCPA and RESPA claims are dismissed because Chase was the owner of the loan, not a debt collector, and the debtor failed to allege actual damages.).
Davenport v. Djourabchi, No. 16-2445 (ABJ), 2017 WL 5068454 (D.D.C. Nov. 1, 2017) (Jackson) (Claims litigation during Chapter 13 case that determined amount of debt and other matters precluded subsequent district court complaint by debtor against same creditor alleging wrongful foreclosure, breach of contract and related theories.).
Tusen v. M&T Bank, No. 16-4339 (PAM/KMM), 2017 WL 4990524 (D. Minn. Oct. 31, 2017) (Magnuson) (Former Chapter 13 debtor’s complaint under FDCPA and FCRA partly survives motion to dismiss: distinguishing Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 198 L. Ed. 2d 177 (June 12, 2017), M&T Bank was servicer, not owner of debt, and thus was subject to FDCPA; “no data” credit report was not inaccurate or misleading with respect to status of mortgage during Chapter 13 case.).
Amer v. Wells Fargo Bank NA, No. 17-cv-03872-JCS, 2017 WL 4865564 (N.D. Cal. Oct. 27, 2017) (Spero) (After six bankruptcies between 2011 and 2016, including several Chapter 13 cases, judicial estoppel bars most of debtor’s unscheduled claims against Wells Fargo under California Homeowner’s Bill of Rights and other theories notwithstanding evidence of dual tracking, failure to identify single point of contact and other transgressions.).
Fox v. Ocwen Loan Servicing, LLC, No. 17-cv-193-JD, 2017 WL 3327571 (D.N.H. Aug. 3, 2017) (DiClerico) (Judicial estoppel does not bar debtors’ action to enjoin foreclosure based on challenge to validity of mortgage assignment notwithstanding that confirmed plan in prior case provided direct payment of the same mortgage.).
Ukaegbu v. Select Portfolio Servicing, Inc., No. PWG-16-3415, 2017 WL 2930465, at *1 (D. Md. July 7, 2017) (Grimm) (In litigation in which Chapter 13 debtor claimed Wells Fargo was not the holder or owner of a mortgage, “Plaintiff lacks standing to challenge the Assignment of Deed of Trust to Wells Fargo and the exhibits establish that Wells Fargo was the holder of the Note . . . . [H]is remaining claims are time-barred.”).
Mainoo v. Comerica Bank (In re Mainoo), No. 4:17-CV-232-A, 2017 WL 2709737 (N.D. Tex. June 22, 2017) (McBryde) (Debtor’s signature on note was genuine, relief from stay did not allow a double recovery and lienholder was not barred by four-year Texas statute of limitations.).
Emmons v. Select Portfolio Servicing Inc, No. CV-16-00557-TUC-JGZ, 2017 WL 6882966 (D. Ariz. June 14, 2017) (Zipps) (Motion to dismiss shotgun complaint against mortgage servicer is granted. RESPA claims are time-barred. Quiet title claims require debtors to tender amount of mortgage, which they have not done.).
Christenson v. CitiMortgage, Inc., 255 F. Supp. 3d 1099 (D. Colo. June 1, 2017) (Jackson) (RESPA did not require CitiMortgage to respond to debtor’s written request because information requested dealt with loss mitigation, not with servicing of loan; CitiMortgage responded in good faith with respect to loss mitigation by offering loan modification application.).
Schor v. Select Portfolio Servicing, LLC, No. 4:16-CV-829-ALM-KPJ, 2017 WL 2486090 (E.D. Tex. May 11, 2017) (Priest-Johnson) (Claims of wrongful foreclosure, fraud and violations of RESPA are dismissed.).
Saji v. Residential Credit Sols., No. 17-cv-00025-YGR, 2017 WL 1407997 (N.D. Cal. Apr. 20, 2017) (Rogers) (Debtor’s complaint against BONY, Residential Credit Solutions and Ditech Financial for wrongful acts and omissions with respect to a loan modification application is dismissed in part. Complaint alleged wrongful foreclosure, failure to provide a single point of contact, failure to provide written acknowledgment of a loan modification application and negligence in loan servicing.).
McCarthy v. Servis One, Inc., No. 17-cv-00900-WHO, 2017 WL 1316810 (N.D. Cal. Apr. 10, 2017) (Orrick) (Debtor failed to allege sufficient facts to support negligent or fraudulent processing of loan modifications before and after filing Chapter 13 case for purposes of California Homeowners Bill of Rights.).
Nath v. Select Portfolio Servicing, Inc. (In re Nath), Nos. 15-CV-3694 (KMK), 16-CV-2032 (KMK), 2017 WL 1194735 (S.D.N.Y. Mar. 31, 2017) (Karas) (In fourth bankruptcy case, debtor's attack on foreclosure judgment bordered on sanctionable.).
Spencer v. Federal Home Loan Mortgage Corp. (In re Spencer), 246 F. Supp. 3d 1241 (W.D. Wis. Mar. 30, 2017) (Conley) (Rooker-Feldman doctrine precludes Chapter 13 debtor's challenge to foreclosure judgment.), aff'g 532 B.R. 303 (Bankr. W.D. Wis. May 15, 2015) (Furay) (Claims based on wrongful foreclosure are barred by Rooker-Feldman doctrine when claims were "intertwined inextricably" with state court foreclosure judgment and debtor had reasonable opportunity to raise issues before state court.).
Carson v. Ocwen Loan Servicing, No. 2:15-CV-514-DBH, 2017 WL 1183960 (D. Me. Mar. 29, 2017) (Hornby) (In post-discharge action by Chapter 13 debtors against Ocwen and others for failing to implement HAMP modification, Ocwen's claim that modification was not effective because Ocwen never signed and returned an acknowledgement after acceptance of its HAMP offer by the debtors is rejected.).
Bird v. Specialized Loan Servicing LLC, No. RDB-16-3743, 2017 WL 1001257 (D. Md. Mar. 15, 2017) (Bennett) (In a Chapter 7 case, debtor is bound by findings during prior Chapter 13 case that JPMorgan Chase was holder of mortgage on debtor’s property.).
Peterson v. Flagstar Bank, FSB (In re Peterson), Nos. PWG-16-2617, 15-27068, 2017 WL 1020821, at *3 (D. Md. Mar. 15, 2017) (Grimm) (“Peterson contends that Flagstar lacks standing to foreclose on his Property. . . . [H]e raised the same issue in the Foreclosure Action, and the state court rejected his argument. . . . Because all elements of collateral estoppel have been met, the issue underlying Peterson’s appeal
Donkin v. JP Morgan Chase Bank, N.A., No. 15-1787-JGB, 2017 WL 5985584 (C.D. Cal. Feb. 8, 2017) (Bernal) (Bankruptcy court appropriately overruled Chapter 13 debtor’s objection to mortgage claim when mistaken reference in deed of trust was a scrivener’s error that could be corrected by reformation without transgressing state statute of limitations.).
Santos v. Ocwen Loan Servicing, LLC, No. 16-cv-01197-HRL, 2017 WL 24869 (N.D. Cal. Jan. 3, 2017) (Lloyd) (After closing of Chapter 13 case without discharge
Myers v. CFG Cmty. Bank, No. ELH-16-3220, 2016 WL 6962864 (D. Md. Nov. 29, 2016) (Hollander) (Debtor’s challenge to state court foreclosure sale and to dismissal of Chapter 13 case filed in district court was properly dismissed for lack of jurisdiction.).
Coleman-Reed v. Ocwen Loan Servicing LLC, Nos. 2:15-13687, 2:15-13708, 2016 WL 6469329 (S.D. W. Va. Oct. 28, 2016) (Copenhaver) (Former Chapter 13 debtor’s claims against Ocwen and Wells Fargo for failing to accept payments and failing to file assignment of claim during Chapter 13 case were subject to arbitration. Despite confirmed plan that made substantial payments to Ocwen as servicer of mortgage held by Wells Fargo, Ocwen and Wells Fargo returned payments to the Chapter 13 trustee and those funds were distributed to other creditors. No amended proof of claim or notice of claim transfer was filed. Debtor was unable to continue payments under the mortgage contract and Chapter 13 case was dismissed. Ocwen and Wells Fargo then sought to foreclose. Debtor brought suit in state court and Wells Fargo removed to district court and then moved to compel arbitration. “Ocwen has not defaulted on its right to arbitration . . . . Coleman-Reed’s claims against Ocwen and Wells Fargo as Trustee are covered under the Arbitration Agreement and should be sent to arbitration pursuant to it.”).
Brantley v. CitiMortgage (In re Brantley), No. 1:16-cv-707, 2016 WL 6092709 (S.D. Ohio Oct. 18, 2016) (Litkovitz) (Rooker-Feldman doctrine and doctrines of res judicata and collateral estoppel preclude district court from entertaining serial filer’s challenge to foreclosure judgment.).
Wells Fargo Bank, N.A. v. Carssow-Franklin (In re Carssow-Franklin), 213 F. Supp. 3d 577, 587-91 (S.D.N.Y. Sept. 30, 2016) (Karas) (Based on testimony that Wells Fargo “indorsement teams” created assignments and indorsements when needed to bolster the bank’s collateral position, bankruptcy court appropriately rejected presumption of validity of note indorsement with result that Wells Fargo lacked standing to assert mortgage debt. Disputed facts precluded summary judgment with respect to Wells Fargo’s authority to file claims as representative of Freddie Mac. Wells Fargo filed a proof of claim with attached note bearing an indorsement from Mortgage Factory to ABN Amro but no other indorsement. After inquiry from debtor’s counsel, Wells Fargo filed another proof of claim identical to its first claim except that the copy of the note attached had a second indorsement in blank signed by a vice president for ABN Amro. “Debtor offered specific evidence from which the bankruptcy court found that a reasonable juror could draw the inference that the blank indorsement was not genuine. . . . [D]eposition testimony established that Wells Fargo had a ‘general willingness and practice . . . to create documentary evidence, after-the-fact, when enforcing its claims,’ . . . . Wells Fargo’s outside enforcement counsel would inquire of Kennerty and his ‘assignment team’ whether or not a certain assignment existed and if it did not the attorney would draft the assignment and someone, possibly Kennerty, would sign it. . . . [T]he indorsement team would go about indorsing the note if there was no indorsement . . . . [A] reasonable fact-finder could infer that the blank indorsement was not genuine, eliminating the indorsement’s presumption of validity. . . . [T]he bankruptcy court’s factual findings with respect to the blank indorsement are sufficient to overcome the relatively modest presumption of validity that attaches to the indorsement. The burden thus shifted to Wells Fargo to establish, by a preponderance of the evidence, that the indorsement was genuine. The bankruptcy court found that Wells Fargo failed to do so.”).
Horowitz v. Sulla, No. 16-00433, 2016 WL 5799011 (D. Haw. Sept. 30, 2016) (Watson) (Withdrawal of reference denied with respect to adversary proceeding challenging state court foreclosure and ejectment.).
Verna v. U.S. Bank Nat’l Ass’n, No. 1:15-CV-1127, 2016 WL 5107115 (N.D.N.Y. Sept. 20, 2016) (Kahn) (Sua sponte partial summary judgment for mortgagee was permissible when bankruptcy court considered affidavits establishing mortgagee had possession of note.), denying appeal, aff'g, No. 14-10821, 2015 WL 5193412, at *6 (Bankr. N.D.N.Y. Sept. 4, 2015) (Littlefield) (Mortgage and note were valid and enforceable when bank established it was holder of note assigned in blank evidenced by attorney's affirmation of possession. Under New York law "the mortgage follow[ed] the note as an inseparable incident, absent an agreement among parties to an assignment that the assignor retain its rights in the mortgage.").
Muhammad v. Bank of Am., N.A., No. 15-cv-10329, 2016 WL 4720044 (N.D. Ill. Sept. 9, 2016) (Dow) (Bank of America’s possession of note overcame confusion created by letter from Fannie Mae in which it claimed to own the debt.).
Brundige v. Everbank, No. 1:15-CV-1365, 2016 WL 4523929 (N.D.N.Y. Aug. 22, 2016) (Hurd) (Affidavits established that Everbank had physical possession of note endorsed in blank—sufficient to support Everbank’s right to foreclose.).
Carnahan v. Bank of Am. N.A., No. 15-02319-JGB, 2016 WL 8970333 (C.D. Cal. June 16, 2016) (Bernal) (Judicial estoppel bars debtor’s action against mortgagee for misrepresentation, fraud and violations of various statutes. Debtor failed to schedule the causes of action against the mortgagee in the Chapter 13 and failed to amend schedules notwithstanding that Chapter 13 case and district court litigation were ongoing at the same time.).
Rastegar v. Wells Fargo Bank, N.A., No. SACV 16-00078 JVS(DFMx), 2016 WL 7495832 (C.D. Cal. Mar. 15, 2016) (Selna) (Chapter 13 debtor’s complaint against Wells Fargo alleging multiple causes of action with respect to failed loan modification applications is dismissed.).
Joseph v. Dovenmuehle Mortg., No. H-14-3045, 2015 WL 12570992 (S.D. Tex. Dec. 22, 2015) (Werlein) (Complaint for wrongful foreclosure is dismissed when evidence showed that mortgage was declared current in 2010 at end of Chapter 13 case and debtors made no mortgage payments thereafter.).
Melendez v. U.S. Bank Nat’l Ass’n, No. CV 15-08633 SJO (AGRx), 2015 WL 12866246 (C.D. Cal. Dec. 3, 2015) (Otero) (Complaint alleging breach of promise with respect to mortgage loan modification is dismissed.).
Marx v. DeConne (In re DeConne), No. 15 CV 175 (VB), 2015 WL 5460100, at *3 (S.D.N.Y. Sept. 1, 2015) (Briccetti) (Transferee of mortgage notes that were not indorsed did not have standing to assert proofs of claim when transferee could not establish chain of title from original mortgagee. "Two persons are entitled to enforce an instrument: (i) 'the holder of the instrument,' and (ii) a 'nonholder in possession of the instrument who has the rights of a holder.' . . . A 'holder' is, inter alia, 'the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.' . . . The parties acknowledge the Security Notes were not indorsed, and as such, Chase, Linear, and appellant are not entitled to holder status. A nonholder in possession must 'account for his possession of the unindorsed paper by proving the transaction through which he acquired it. Proof of a transfer to him by a holder is proof that he has acquired the rights of a holder.' . . . Appellant repeatedly emphasizes that he is in physical possession of the Security Notes. However, appellant has not shown The Bank of New York transferred the Security Notes to Chase. In fact, there is no evidence in the record that Chase ever possessed the Security Notes. Appellant has also failed to show Chase lost the Security Notes, or that they were destroyed or stolen. Therefore, Chase was not conferred 'nonholder in possession' status. 'Transfer of an instrument vests in the transferee such rights as a transferor has therein.' . . . Chase could not transfer . . . rights to enforcement it did not have. . . . The break in title between The Bank of New York and Chase is the missing link in the chain. It is the reason the Bankruptcy Court disallowed appellant's claim. . . . [I]t matters not if appellant is in possession of the Security Notes now if he cannot show that Chase was once in possession of them. . . . Appellant does not have standing to enforce the Security Notes.").
Baumann v. PNC Bank, N.A. (In re Baumann), No. 6:15-cv-27-Orl-37, 2015 WL 5008667 (M.D. Fla. Aug. 21, 2015) (Dalton) (Mortgagee that filed proof of claim had standing to appear in Chapter 13 case to seek stay relief and for other purposes notwithstanding disputed claim.).
Specialized Loan Servicing, LLC v. Washington, No. 2:14-cv-8063-SDW, 2015 WL 4757924, at *5 (D.N.J. Aug. 12, 2015) (unpublished) (Wigenton) (Neither default nor commencement of foreclosure accelerated maturity date of mortgage debt for purposes of New Jersey's Fair Foreclosure Act six-year statute of limitations on matured debt. That payment default rendered note "due and owing" did not mean the "maturity date" was accelerated for purposes of statute. Fair Foreclosure Act was intended to "ease the process of clearing title, not to allow debtors to evade payment."), rev'g No. 14-01319-TBA, 2014 WL 5714586 (Bankr. D.N.J. Nov. 5, 2014) (unpublished) (Kaplan) (Mortgagee's claim is disallowed under § 502(b)(1) as unenforceable against the debtor or against property of the debtor when right to foreclose under New Jersey law expired six years after acceleration and no party acted to de-accelerate maturity. Mortgage lien was void under § 506(d), and debtor retained property free of lien.).
Garner v. Select Portfolio Servicing, Inc., No. 15-10377, 2015 WL 13021739 (E.D. Mich. July 28, 2015) (Grand) (After relief from stay in a Chapter 13 case, adversary proceeding challenging standing of mortgagee and alleging RESPA violations is dismissed in part.).
Thompson v. Ocwen Loan Servicing LLC, Nos. 14-CV-1502-JPS, 14-CV-1522-JPS, 2015 WL 3454726, at *3-*6 (E.D. Wis. May 29, 2015) (Stadtmueller) (Bankruptcy court lacked authority to order Wells Fargo to return mortgage payments made directly by debtors when bank's claim was disallowed; payments made by trustee on mortgage arrearage, however, could be recovered consistent with 11 U.S.C. § 502(j). "Assuming that its reconsideration of its original allowance of Wells Fargo's claim was under Bankruptcy Rule 3008 and 11 U.S.C. § 502(j), . . . perhaps the bankruptcy court intended for its reimbursement order to flow from that statute. But that probably would not be proper; 11 U.S.C. § 502(j) appears only to cover return of money to the trustee. . . . In light of the bankruptcy court's statements, it seems that there could be three potential bases for its order: (1) a finding that allowing Wells Fargo to keep the payments would constitute unjust enrichment; (2) a finding that allowing Wells Fargo to keep the payments would be inequitable; or (3) the fact that the disgorgement was 'part and parcel' of the claims allowance process. If it was either the first or second of those bases, it would appear that the proper procedure would have been for the bankruptcy court to treat the debtors' request for reimbursement of their direct payments as an adversary proceeding. . . . On the other hand, if the bankruptcy court was relying on the third base—that the disgorgement was 'part and parcel' of the claims allowance process—the Court questions whether the bankruptcy court had any authority to act. . . . [I]t does not appear that 11 U.S.C. § 502(j) provides authority for the bankruptcy court to disgorge fees to anyone other than the trustee. . . . The Court can understand why the bankruptcy court took the path that it did. It seems to be the most logical and expedient way of accomplishing the task at hand. Unfortunately, this Court cannot find any authority giving the bankruptcy court the power to take the step that it did. Thus, the Court is obliged to vacate and remand the bankruptcy court's order that Wells Fargo reimburse the [debtors] for their direct payments.").
Baker v. Bank of N.Y. Mellon by & through Vanderbilt Mortg. & Fin., Inc., No. 13-cv-1117 MCA-GBW, 2015 WL 13666328 (D.N.M. Feb. 2, 2015) (Wormuth) (Six years and two bankruptcies after discharge in prior Chapter 7 case, debtors are barred by judicial estoppel, by the Rooker-Feldman doctrine and by substantive defenses to challenge state court foreclosure. Debtors did not list actions against mortgagee in prior bankruptcies or raise the claims in defense of foreclosure action.).
Cortez v. Republic Mortg. LLC, No. 2:14-CV-1235-KJD-VCF, 2014 WL 6634890 (D. Nev. Nov. 24, 2014) (Dawson) (That mortgage holder lacked standing to enforce secured claim did not extinguish creditor's interest in property; nothing in confirmed plan altered creditor's interests or rights.).
Blomberg v. Maney (In re Blomberg), No. 2:13-cv-2187-HRH, 2014 WL 5581047 (D. Ariz. Oct. 31, 2014) (unpublished) (Holland) (Mortgage servicer holding original note endorsed in blank was entitled to enforce the note and had standing to seek relief from the automatic stay and to file a proof of claim.).
Rosas v. America's Servicing Co. (In re Rosas), 520 B.R. 534 (W.D. Tex. Oct. 14, 2014) (Rodriguez) (Statute of limitations triggered by acceleration of mortgage was not expired when forbearance agreement effected an abandonment of all prior accelerations; mortgagee could proceed with collection.).
Blum v. Glen Garron, LLC, 51 F. Supp. 3d 1286, 1289 (S.D. Fla. Oct. 1, 2014) (Rosenberg) (Rooker-Feldman doctrine precluded debtor's action against parties that prevailed in prepetition foreclosure litigation. "The only way Plaintiff could have been damaged was if the loss of his home was wrongful. By entering judgment in favor of foreclosure, the state court has determined that foreclosure was proper. Were judgment to be entered in this case in favor of Plaintiff, it would necessarily follow that the state court foreclosure was in error and, as a result, this Court cannot grant Plaintiff his requested relief without disturbing the Florida foreclosure judgment.").
Cole v. JPMorgan Chase Bank, N.A., No. 1:12-cv-01452, 2014 WL 4393545 (D. Colo. Sept. 4, 2014) (unpublished) (Blackburn) (Debtor lacked standing to assert unscheduled causes of action against mortgagee; trustee given opportunity to substitute as real party in interest.).
Dates v. HSBC Bank U.S.A., N.A., No. 1:13-cv-291, 2014 WL 4377778, at *2 (S.D. Ohio Sept. 3, 2014) (Barrett) (Dismissal of bankruptcy case rendered moot appeal of proof of claim litigation. "'If there is no bankruptcy estate, it is obvious that there is no reason to resolve an objection to a proof of claim that seeks a distribution against the (now) non-existent bankruptcy estate. Indeed, it may not be an overstatement to suggest that an objection to a proof of claim is mooted or abated as a matter of law by the dismissal of the underlying bankruptcy case. . . .'").
Combs v. CitiFinancial, Inc., No. 5:13CV3291, 2014 WL 4387312 (W.D. La. Sept. 3, 2014) (Stagg) (Judicial estoppel applied sua sponte to bar challenge to mortgage when action was not disclosed in confirmed case.).
GMAC Mortg., LLC v. Orcutt, 506 B.R. 52, 67-68 (D. Vt. Feb. 28, 2014) (Reiss) (That mortgage lien was voidable under state law did not preclude consideration of equities of case and defense of equitable subordination. "[T]he Bankruptcy Court concluded that 'adjudicating the validity' of the . . . Mortgage was 'necessary' to ruling on the validity of GMAC's claim of secured status and as 'part and parcel' of the claims allowance process . . . ; however, the Bankruptcy Court then failed 'in passing on allowance of claims [to] sit[ ] as a court of equity.'. . . While the Bankruptcy Court explained it 'might determine that since [Debtors] have gotten the benefit of [GMAC's] loan, they should not be entitled to absolve themselves of liability on [GMAC's] mortgage,' the Bankruptcy Court 'appl[ied] the pertinent statutes and controlling case law,' . . . rather than approaching the issue as a court of equity 'to sift the circumstances surrounding' Debtors' exemption and GMAC's proof of claim as a secured creditor. . . . [T]he Bankruptcy Court improperly limited its consideration to solely the adjudication of the validity of the . . . Mortgage under state law."), aff'g in part, rev'g in part and remanding No. 11-1013, 2013 WL 1342741 (Bankr. D. Vt. Apr. 2, 2013) (Brown) (Mortgage unenforceable due to failure of debtors to sign mortgage deed.).
Williams v. Saxon Mortg. Servs., Inc., No. 13-10817, 2014 WL 765055 (E.D. Mich. Feb. 26, 2014) (Cox) (Breach of contract action based on failure to offer permanent home mortgage modification allowed to proceed; action not backdoor attempt to create private right of action under HAMP.).
Evans v. JP Morgan Chase Bank, N.A., No. 1:12-cv-1038, 2014 WL 359226 (W.D. Ark. Feb. 3, 2014) (Hickey) (Refusal to acknowledge full satisfaction of mortgage for more than two years was contempt of discharge injunction and violation of Arkansas statute that requires timely acknowledgment of satisfaction. Damages included attorney fees plus statutory damages of $25,400 ("amount of mortgage money" paid).).
Ocwen Loan Servicing, LLC v. Thompson, No. 13-CV-487-JPS, 2014 WL 51236 (E.D. Wis. Jan. 7, 2014) (Stadtmueller) (Wells Fargo lacked standing to file proof of claim when note attached to proof of claim made no reference to Wells Fargo, was not endorsed in blank or otherwise, and had no attached allonge. Allonge offered in response to objection but unsupported by testimony or other evidence to "connect the dots" was insufficient.).
Almanzar v. Bank of Am., NA (In re Almanzar), No. 1:13CV146, 2013 WL 6893966, at *3 (M.D.N.C. Dec. 31, 2013) (Schroeder) (Rooker-Feldman doctrine barred challenge to foreclosure. "'In the context of a state court foreclosure proceeding, Rooker-Feldman prohibits claims brought in federal court that may "succeed only to the extent that the state court wrongly decided the foreclosure action."' . . . [T]he county Clerk of Court issued an order declaring that the debt was valid, [debtor] was in default, [substitute trustee] had the right to foreclose, and [debtor] had shown no legal reason why the foreclosure should not proceed. . . . Therefore, the validity of the foreclosure was established by the state court proceeding and cannot be challenged in the bankruptcy court or in this court.").
Schmid v. Bank of Am., N.A., 498 B.R. 221 (W.D. Wis. Aug. 27, 2013) (Crabb) (Prepetition foreclosure judgment precluded fraud claim against mortgagee under Rooker-Feldman doctrine.), dismissing appeal of 494 B.R. 737 (Bankr. W.D. Wis. Apr. 24, 2013 (Furay) (Standing attack on BAC Home Loan Servicing's proof of claim was precluded by Rooker-Feldman and claim preclusion when state court had determined validity of debt in foreclosure litigation.).
Butler v. Wells Fargo Bank, N.A., No. MJG-12-2705, 2013 WL 3816973 (D. Md. July 22, 2013) (unpublished) (Garbis) (Mental anguish not sufficient actual injury or loss for purposes of unfair and deceptive trade practices action under Maryland Consumer Protection Act.).
Hermiz v. Federal Home Loan Mortg. Corp. (In re Hermiz), No. 13-11199, 2013 WL 3353928, at *3 (E.D. Mich. July 3, 2013) (unpublished) (Steeh) (When redemption period expired prepetition, foreclosure sale is beyond challenge absent "'a clear showing of fraud or irregularity.'").
Tasic v. Wells Fargo Bank, N.A. (In re Tasic), No. 4:13CV00479 ERW, 2013 WL 2425133 (E.D. Mo. June 4, 2013) (unpublished) (Webber) (Dismissal of adversary proceeding alleging defect in note and deed of trust was not appropriate once case was reinstated.).
Mansmann v. Ocwen Loan Servicing, L.L.C. (In re Mansmann), No. 13-mc-00005-CB-M, 2013 WL 2322953 (S.D. Ala. May 28, 2013) (unpublished) (Shulman) (Reference withdrawn on complaint alleging improper foreclosure, but delayed until bankruptcy court certified trial ready.).
Graham v. U.S. Bank, N.A., No. 13-cv-01613 NC, 2013 WL 2285184 (N.D. Cal. May 23, 2013) (unpublished) (Cousins) (Complaint alleging misrepresentation of ability to modify loan was dismissed when debtor did not schedule cause of action, and debtor did not sufficiently plead fraud.).
Price v. America's Servicing Co., No. 3:12-CV-2642-D, 2013 WL 1914939 (N.D. Tex. May 9, 2013) (unpublished) (Fitzwater) (Challenge to improper fees in proof of claim under § 506(b) and Rule 2016 fails when complaint did not allege that fees were unreasonable. State law claim for fraud and misrepresentation did not satisfy elements of common law fraud under Texas law.).
Dang v. Bank of Am. N.A., No. RDB-12-3343, 2013 WL 1683820 (D. Md. Apr. 17, 2013) (unpublished) (Bennett) (Dismissal of adversary proceeding appropriate. Stay relief had been granted to allow bank to exercise state law remedies. Debtor's discharge did not affect validity of security interest. Debtor's complaint failed to adequately plead fraud or other causes of action. Judicial estoppel would preclude claims not disclosed in bankruptcy.).
Arreola v. Mortgage Elec. Registration Sys., Inc., No. 12-587-M, 2013 WL 1363555 (D.R.I. Apr. 3, 2013) (unpublished) (McConnell) (Res judicata did not bar complaint challenging assignments of mortgage because causes of action asserted previously in bankruptcy were not sufficiently identical to current complaint.).
Jones v. Wells Fargo Home Mortg., Inc., 489 B.R. 645 (E.D. La. Mar. 19, 2013) (Lemelle) (After remand, bankruptcy court awarded punitive damages 10 times $317,115.40 compensatory damage award. District court affirmed, holding amount did not violate due process limitations. Bankruptcy court found that mortgage lender violated automatic stay, misapplying plan payments without notice to debtor and without leave of court in numerous cases. Wells Fargo was on sufficient notice that actions were impermissible and could incur significant penalties.), aff'g No. 06-1093, 2012 WL 1155715 (Bankr. E.D. La. Apr. 5, 2012) (Magner), on remand from 439 Fed. Appx. 330 (5th Cir. Aug. 24, 2011) (unpublished) (Higginbotham, Smith, Haynes), remanding No. CIV. 07-3599, 2010 WL 3398849 (E.D. La. Aug. 24, 2010) (Lemelle) (Bankruptcy court appropriately determined that punitive damages would not deter or punish Wells Fargo and that injunctive relief was required. "Since the Bankruptcy Court did not abuse its discretion in refusing to grant punitive damages, and since Wells Fargo has not appealed the Accounting Procedures Injunction, this court does not need to address issues surrounding the imposition or justification of the injunction."), aff'g 418 B.R. 687, 698-99 (Bankr. E.D. La. Oct. 1, 2009) (Magner) (On remand, punitive damages would not remedy Wells Fargo's misconduct in Chapter 13 cases; injunctive relief is necessary to require Wells Fargo to implement accounting procedures for prevention of future violations of automatic stay and for compliance with confirmed plans. Procedures ensure that plan payments are properly allocated between postpetition and prepetition obligations, that debtors are notified of charges incurred and that creditor seeks permission before imposing charges for professional or other postpetition fees payable from estate funds. Wells Fargo had originally assured bankruptcy court that it would alter its procedures but then reneged prior to appeal. Wells Fargo had adopted "scream or die" approach: "[E]very debtor in the district should be made to challenge, by separate suit, the proofs of claim or motions for relief from the automatic stay filed by Wells Fargo. It has steadfastly refused to audit the pleadings or proofs of claim on file in the district for errors and has refused to voluntarily correct any errors that come to light except through threat of litigation. Although its own representatives have admitted that it routinely misapplied payments on loans and improperly charged fees, they have refused to correct past errors. They stubbornly insist on limiting any change in their conduct prospectively, even as they seek to collect on loans in other cases for amounts owed in error.").
Nordeen v. Taylor, Bean & Whitaker Mortg. Co. (In re Nordeen), 489 B.R. 203 (D. Nev. Mar. 12, 2013) (Jones) (Allegation that lender forgave principal balance before transfer to loan servicer stated claim to quiet title; complaint failed to state claim for fraud in connection with note and deed of trust.).
Wells Fargo Bank, N.A. v. Brannan (In re Brannan), Misc. Action No. 12-0001-WS, 2013 WL 838240 (S.D. Ala. Mar. 5, 2013) (unpublished) (Steele) (Bank failed to meet standards for interlocutory appeal of class certification.).
Finley v. Carrington Mortg. Servs., LLC, No. MC-12-S-00051-NE, 2012 WL 6610194 (N.D. Ala. Dec. 17, 2012) (Smith) (Withdrawal of reference not appropriate; bankruptcy court could determine its authority to enter final judgment in mortgage dispute in which bankruptcy issues predominate.).
BAC Home Loan Servicing L.P. v. State Res. Corp. (In re Lee), No. 9:11-ap-70-JPH, 2012 WL 4512931 (M.D. Fla. Sept. 30, 2012) (unpublished) (Steele) (Bankruptcy court had constitutional authority to enter final judgment in declaratory action concerning lien priority; however, default against BAC Home Loan Servicing and judgment on pleadings against other defendants were vacated with remand for evidentiary hearing.).
Marty v. Taylor Bean & Whitaker, No. 2:12-CV-441 TS, 2012 WL 4482029 (D. Utah Sept. 26, 2012) (unpublished) (Stewart) (Res judicata barred contesting deeds of trust when same issues had been tried in California, based on same transactions. Defendant's motion for sanctions was denied because plaintiff's legal theory was not entirely frivolous.).
Duncan v. Deutsche Nat'l Bank Trust Co., No. 1:11-CV-2006, 2012 WL 4322667 (N.D. Ohio Sept. 20, 2012) (Gwin) (Bankruptcy court properly abstained from re-litigation of foreclosure but retained authority to hear contested value of rental property.).
Wright v. Wells Fargo Bank, N.A., No. 11-00212 SOM-RLP, 2012 WL 2973202 (D. Haw. July 19, 2012) (unpublished) (Mollway) (Complaint related to state foreclosure action was barred by res judicata effect of order granting stay relief, which necessarily found that bank held note and mortgage that had been properly transferred; but count alleging deceptive act or practice, under Hawaii statute, survived summary judgment.).
Macklin v. Deutsche Bank Nat'l Trust Co. (In re Macklin), No. 11-2024-E, 2012 WL 2935052 (E.D. Cal. July 18, 2012) (unpublished) (Burrell) (Withdrawal of reference denied: it was judicially efficient for bankruptcy court to oversee debtor's adversary proceeding against mortgagee.).
Thomas v. U.S. Bank Nat'l Ass'n, 474 B.R. 450 (D.N.J. June 22, 2012) (Wolfson) (HAMP does not provide private right of action; Helping Families Save Their Homes Act of 2009 did not preclude U.S. Bank from instituting foreclosure.).
Balcom v. Deutsche Bank Nat'l Trust Co., No. 11-6043, 2012 WL 2374650 (W.D. Ark. June 22, 2012) (unpublished) (Dawson) (Delay of trial in removed foreclosure proceeding denied; parties ordered to Rule 26(f) settlement conference.).
Roubinek v. Select Portfolio Servicing, Inc., No. 3:11-CV-3481-D, 2012 WL 2358560 (N.D. Tex. June 21, 2012) (unpublished) (Fitzwater) (In removed foreclosure action, debtor failed to plead fraud-based claims with required degree of specificity. Claims based on economic loss doctrine and slander of title were dismissed for failure to state claim.).
Gooden v. Suntrust Mortg., Inc., No. 2:11-cv-02595-JAM-DAD, 2012 WL 2120024 (E.D. Cal. June 11, 2012) (unpublished) (Drozd) (Trustee's motion to approve settlement with defendant stayed discovery in putative class action.), report and recommendation adopted by 2012 WL 2359914 (E.D. Cal. June 20, 2012) (Mendez).).
Pineda v. Countrywide Home Loans, Inc., No. H-12-356, 2012 WL 2050358 (S.D. Tex. June 6, 2012) (unpublished) (Miller) (Wrongful foreclosure complaint was barred by Texas four-year statute of limitations.).
Boyd v. GMAC Mortg. LLC, No. C 11-5018 PSG, 2012 WL 1424992 (N.D. Cal. Apr. 24, 2012) (unpublished) (Grewal) (Debtor's motion to transfer quiet title and foreclosure actions to bankruptcy court is denied.).
Foley v. Wells Fargo Bank, N.A., No. 3:10-cv-00702-RCJ-VPC, 2012 WL 75949 (D. Nev. Jan. 10, 2012) (unpublished) (Jones) (District court lacked appellate jurisdiction over decision by bankruptcy court in another district.).
Newell v. Wells Fargo Bank, N.A., No. C 10-05138 WHA, 2012 WL 27783 (N.D. Cal. Jan. 5, 2012) (unpublished) (Alsup) (No private right of action to enforce HAMP agreement between Wells Fargo Bank and United States. Plaintiffs were not party to HAMP agreement and language of agreement did not grant borrowers' enforceable rights.).
Bank of Am., N.A. v. Landis, No. 2:11-cv-1338-RCJ-PAL, 2011 WL 6104495 (D. Nev. Dec. 7, 2011) (Jones) (U.S. trustee has standing to conduct Bankruptcy Rule 2004 examination of Bank of America when BOA filed inconsistent claims—one declaring that documentation was "lost or destroyed" and amended claim attaching copies of note and deed of trust. Scope of subpoena was too broad because Rule 2004 does not permit a general investigation but only examination specific to the debtor-creditor relationship at hand.).
Culhane v. Aurora Loan Servs. of Neb., No. 11-11098-WGY, 2011 WL 5925525 (D. Mass. Nov. 28, 2011) (Young) (After exhaustive review of MERS and Massachusetts law, assignment of mortgage by MERS to Aurora executed by employee of Aurora who was also vice president of MERS satisfied Massachusetts requirement of unity of note and mortgage in same entity prior to foreclosure.).
Joseph v. Wachovia Mortgage Corp., No. 5:11-cv-02395 EJD, 2011 WL 5827224 (N.D. Cal. Nov. 18, 2011) (Davila) (Complaint alleging that lender did not inform fully that negative amortization could result in 30-year adjustable rate mortgage is dismissed. State law claims were preempted by Homeowners Loan Act, and Truth in Lending Act violation was time barred.).
Marks v. PHH Mortgage Corp., No. 5:11-CV-167 (CAR), 2011 WL 5439164 (M.D. Ga. Nov. 9, 2011) (Royal) (In mortgage litigation: plaintiff adequately stated RESPA action; negligence and defamation claims were not preempted by Fair Credit Reporting Act, but negligence claim was dismissed; complaint adequately alleged false statements in reports to credit bureaus for defamation purposes; count for intentional infliction of emotional distress was dismissed; conversion claim and request for punitive damages survived.).
Shaterian v. Wells Fargo Bank, N.A., No. 11-00920 SC, 2011 WL 5358751 (N.D. Cal. Nov. 7, 2011) (Conti) (In mortgage litigation: claim for rescission survived motion to dismiss when ability to tender loan proceeds was alleged; count alleging that loan was intentionally designed to result in negative amortization, resulting in fraudulent omission, was preempted by Homeowners' Loan Act; count alleging violation of California Unfair Competition Act survived; count alleging breach of written contract was dismissed, since contract did not constitute lender's promise that monthly payments would cover principal and interest; count alleging aiding and abetting fraud survived motion to dismiss; count alleging breach of implied covenant of good faith and fair dealing was dismissed because bad-faith allegations were too vague; count alleging violation of California Code governing nonjudicial foreclosure survived dismissal; and count alleging breach of oral contract was dismissed for not pleading adequate consideration.).
Dorado v. Shea Homes Ltd. P'ship, No. 1:11-cv-01027 OWW SKO, 2011 WL 3875626, at *20 (E.D. Cal. Aug. 31, 2011) (Wanger) (Pro se complaint, asserting 29 causes of action related to adjustable rate home mortgage, was dismissed, denying leave to amend when it was "plain that the complaint is without merit for reasons that cannot be cured by amendment. . . . No matter what amendment Plaintiff might offer, her claims are either time-barred, barred by their inability to tender, based upon inapplicable and discredited legal theories or devoid of any meaningful factual allegations.").
Glover v. Wachovia Equity Serving, No. 03:11-cv-00210-HU, 2011 WL 3794760 (D. Or. Aug. 26, 2011) (Hernandez) (Claim preclusion prevented re-litigating foreclosure issues previously raised in state court.).
JP Morgan Chase Bank, N.A. v. Mechem, No. 3:11-CV-26(L), 2011 WL 3758693 (N.D. W. Va. Aug. 23, 2011) (Bailey) (Dismissal of adversary proceeding was final order; reconsideration was denied.).
Gaudin v. Saxon Mortg. Servs., Inc., 850 F.Supp.2d 1051 (N.D. Cal. Aug. 22, 2011) (Seeborg) (Action alleging failure to properly evaluate HAMP application was not precluded by confirmation and there were no inconsistent positions taken in schedules or confirmed plan that would require dismissal of putative class action. Saxon also argued that complaint should be dismissed because there was no enforceable contract, but document suggested otherwise—if debtor was in compliance during trial period, and if representations continued to be true in material respects, lender "will provide" HAMP modification. Debtor must file amended complaint to assert whether failure to enter into permanent loan modification was in bad faith.).
In re Luna, No. 2:11-cv-02229-JHN, 2011 WL 7140067 (C.D. Cal. Aug. 1, 2011) (unpublished) (Nguyen) (Denial of BAC Home Loan Servicing's motion to quash subpoena was not appealable as of right, since it did not finally dispose of dispute, and motion for leave to appeal from interlocutory order was denied. U.S. trustee had issued subpoena for production of documents and examination of BAC.).
Mbazira v. Litton Loan Servicing, LLP (In re Mbazira), No. 10-11831-FDS, 2011 WL 3208033 (D. Mass. July 27, 2011) (Saylor) (Citing Celli v. First National Bank of Northern New York, 460 F.3d 289 (2d Cir. Aug. 15, 2006) (Kearse, Sack, Hall), judicial estoppel and res judicata effect of confirmation prevented modification to reclassify mortgage as unsecured based on defective acknowledgment. Confirmed plan treated mortgage as fully secured. After postconfirmation default, proposed modification reclassified mortgage as unsecured based on defective certificate of acknowledgment. Dismissal of adversary proceeding challenging mortgage validity was affirmed.).
Foley v. Wells Fargo Bank, No. 3:10-CV-00702-RCJ, 2011 WL 3022528 (D. Nev. July 22, 2011) (Jones) (Preliminary injunction to stop foreclosure after stay relief is denied when debtor failed to demonstrate that all defaults had been cured before foreclosure. Bankruptcy court in California had lifted automatic stay to permit Wells Fargo to foreclose, after considering allegation that debtor had cured default prior to foreclosure.).
JP Morgan Chase Bank, N.A. v. Mechem, No. 3:11-CV-26(L), 2011 WL 2491382 (N.D. W. Va. June 22, 2011) (Bailey) (Dismissal of prior adversary proceeding for failure to prosecute precluded new adversary proceeding that sought same determination—whether defendant held valid security interest in real property.).
Evans v. First Mount Vernon, ILA, 786 F. Supp. 2d 347 (D.D.C. May 24, 2011) (Walton) (Debtor had standing to sue mortgage broker, lender and deed of trust trustee for fraud, breach of fiduciary duties and statutory violations. Plan confirmation and stay relief motion did not preclude action, since issues raised in adversary proceeding were not litigated during confirmation or on lender's motion for stay relief.).
BAC Home Loans Servicing LP v. Duong, No. 1:10cv2910, 2011 WL 1706615 (N.D. Ohio May 5, 2011) (Polster) (Order directing BAC Home Loans Servicing to establish and file report of training procedures concerning documents to be filed in bankruptcy cases was not appealable. Bankruptcy court did not specify violation of any particular rule or sanction BAC. Rather, order provided BAC opportunity to demonstrate why future sanctions would not be warranted if appropriate training had been provided to employees.).
Thomas v. RCB Bank of Nichols Hills, No. CIV-10-1255-D, 2011 WL 1667592 (W.D. Okla. May 3, 2011) (DeGiusti) (Appeal of dismissal of adversary proceeding was untimely.).
Nett v. Wells Fargo Home Mortgage Inc., No. 10-15058, 2011 WL 1519166 (E.D. Mich. Apr. 20, 2011) (Battani) (Although sheriff's sale had been conducted and redemption period had expired, under Michigan law, debtor could still challenge foreclosure by equitable defenses to eviction proceedings. State court suit, attacking validity of foreclosure sale, was removed to district court.).
In re Gray, 447 B.R. 524 (E.D. Mich. Mar. 15, 2011) (Cook) (Order for Bankruptcy Rule 2004 examination of Wells Fargo by U.S. trustee and for production of documents was not appealable; motion for leave to appeal was denied. In lieu of immediate appellate review, party opposing discovery order may comply and challenge order at conclusion of proceeding or refuse to comply and contest sanctions. Discovery order was also not reviewable under collateral order doctrine.).
Franklin v. BAC Home Loans Servicing, L.P., No. 3:10-CV-1174-M, 2011 WL 248445 (N.D. Tex. Jan. 26, 2011) (Lynn) (Complaint stated claim for breach of contract when debtor alleged that BAC said she had to dismiss her prior Chapter 13 case before mortgage modification could be considered. BAC's subsequent denial of loan modification may have breached HUD regulations and implicit contract with debtor. Counts alleging wrongful disclosure, negligent misrepresentation under Texas law, unreasonable collection efforts, gross negligence, deceptive trade practices, deceptive collection practices, and fraud were dismissed.).
PNC Bank v. Black, No. 4:10-cv-45-TWP-WGH, 2010 WL 5418898, at *5 (S.D. Ind. Dec. 23, 2010) (unpublished) (Pratt) (Mortgage is declared current, and PNC cannot collect escrow advances after discharge when PNC did not resist trustee's motion to deem mortgage current and PNC neglected all opportunities to inform trustee during Chapter 13 case that it made escrow advances not included in its proof of claim. "PNC argues . . . that the Debtors have been unjustly enriched by its making the escrow disbursements. The bank cites to no authority for the proposition that a debtor in bankruptcy is unjustly enriched when a creditor either does not pursue or is not paid money which it advanced on behalf of the debtor prior to the debtor's discharge. . . . This is a case where a creditor made assumptions which placed its rights at risk and then neglected to follow or even follow-up during the course of the Chapter 13 Plan which yielded several occasions where a prudent creditor would have realized that its assumptions were wrong.").
Sneath v. GMAC Mortgage, No. 2:09-CV-01521-KJD-GWF, 2010 WL 3860655 (D. Nev. Sept. 27, 2010) (Dawson) (Post-discharge debtor lacked standing to challenge prepetition foreclosure under state or federal law because causes of action belonged to the estate in the closed Chapter 13 case; debtor must reopen and ask bankruptcy court to decide whether trustee should pursue actions for benefit of creditors or abandon the claims.).
Childs v. HSBC Mortgage Servs., Inc., No. 3:10-cv-0242, 2010 WL 3063724 (M.D. Tenn. Aug. 3, 2010) (Trauger) (Complaint alleging violation of Tennessee Consumer Protection Act, fraud by mortgage creditor and intentional infliction of emotional distress was dismissed with respect to actions for emotional distress and fraud; factual issues remained about accuracy of payoff amount and charges in letters from mortgage servicer under Tennessee Consumer Protection Act.).
In re Baron, No. CV 09-6883 AHM, 2010 WL 2354341 (C.D. Cal. June 8, 2010) (unpublished) (Matz) (Judgment for default vacated when complaint challenging foreclosure sale was served on bank's attorney who had appeared in bankruptcy case, but law firm rebutted presumption of receipt. Although service on attorney who had appeared in bankruptcy case was proper under Bankruptcy Rule 7004(h), affidavits of three attorneys in firm established that law firm had not received mailed summons.).
First State Bank of Crossett v. Fowler, 427 B.R. 1 (W.D. Ark. Mar. 22, 2010) (Barnes) (Bankruptcy court properly found that Arkansas law governing contracts permitted debtor to recover attorney fees and costs in arrearage and lien litigation; bankruptcy court did not err in determining that bank had been overpaid.), aff'g 395 B.R. 647 (Bankr. W.D. Ark. Oct. 29, 2008) (Mixon) (Under
Prince v. Beal Bank, SSB, No. 1:09-0093, 2010 WL 841273 (M.D. Tenn. Mar. 4, 2010) (Campbell) (Bankruptcy court properly denied abstention and properly dismissed causes of action for conversion, malicious prosecution, abuse of process and negligent infliction of emotional distress in connection with a foreclosure; however, bankruptcy court erred in dismissing claims for violations of RESPA and FDCPA that had neither been heard nor addressed in prior state court proceedings.).
Rodriguez v. Countrywide Home Loans, Inc., 421 B.R. 341, 355 (S.D. Tex. Dec. 3, 2009) (Hanen) (District court declines to withdraw reference of adversary proceeding challenging Countrywide's failure to provide notice or to seek approval of postpetition fees and expenses. Comparing Padilla v. Wells Fargo Home Mortgage, Inc., 379 B.R. 643 (Bankr. S.D. Tex. 2007) (lender must disclose and seek bankruptcy court approval of fees and expenses charged postpetition and pre-discharge), with Padilla v. GMAC Mortgage Corp., 389 B.R. 409 (Bankr. E.D. Pa. 2008) (neither § 506(b) nor § 1322(b)(5) requires creditor to give notice, and Rule 2016(a) only applies to creditors seeking fees or expenses from bankruptcy estate), district court sides with Padilla v. Wells Fargo Home Mortgage and concludes that issues in adversary proceeding were core. Real Estate Settlement Procedures Act, if applicable, only addresses how payments must be allocated and does not require substantial and material consideration of nonbankruptcy federal law for purposes of mandatory withdrawal of reference. Withdrawal of reference based on bankruptcy court's alleged inexperience with class actions was premature since bankruptcy court had not yet certified class action; "no court routinely handles class actions.").
In re Beers, No. 09-1666 (FLW), 2009 WL 4282270 (D.N.J. Nov. 30, 2009) (unpublished) (Wolfson) (Denial of sanctions against mortgage creditor's attorney was appropriate absent evidence that attorney acted in bad faith. Bad faith is required element under 28 U.S.C. § 1927, and Third Circuit requires willful bad faith on part of offending attorney, citing Zuk v. Eastern Pennsylvania Psychiatric Institution, 103 F.3d 294, 297 (3d Cir. Dec. 31, 1996) (Sloviter, McKee, Rosenn). Although bad faith would not be required for Rule 9011 sanctions, debtor did not provide opposing counsel safe harbor protection required by Bankruptcy Rule 9011(c)(1)(A).).
Walton v. Countrywide Home Loans, Inc., No. 08-23337-CIV, 2009 WL 1905035 (S.D. Fla. June 2, 2009) (Gold) (U.S. trustee had standing to bring adversary proceeding seeking monetary sanctions and injunctive relief against mortgagee.), rev'g and remanding No. 08-1176-BKC-AJC-A, 2008 WL 4467207, at *3, *5 (Bankr. S.D. Fla. Oct. 2, 2008) (Cristol) (In action by U.S. Trustee against Countrywide alleging bad faith and abuse of judicial process in Chapter 13 case, court has power under § 105 to impose civil sanctions to prevent abusive litigation practices but U.S. Trustee failed to state cause of action for monetary sanctions. "UST's claim for 'appropriate monetary sanctions' fails as it does not seek to compensate. If anyone has been harmed by Countrywide's alleged conduct, it would be the Sanchezes, the 'original parties', who were required to respond to the motions for relief from stay and the foreclosure action. . . . Furthermore, the claim for 'appropriate monetary sanctions' fails because the UST is not authorized to pursue punitive sanctions on behalf of the public by way of an adversary proceeding. The UST has a broad mandate . . . however, [the statutes granting UST authority] do not allow the UST to initiate adversary proceedings for civil sanctions on behalf of the public." Claim for injunctive relief also fails because U.S. Trustee "has failed to plead facts showing an imminent threat of future injury or any continuing, current injury warranting any sort of injunction.").
Ameriquest Mortgage Co. v. United States Bankruptcy Court for the Dist. of Mass. (In re Nosek), 386 B.R. 374 (Bankr. D. Mass. 2008), aff’d in part, vacated in part, 406 B.R. 434, 439, 444 (D. Mass. May 26, 2009) (On appeal of sanctions against mortgage lender, assignee of lender, servicer and attorneys for creditor, deference given to "judgment of the experienced bankruptcy judge concerning what is necessary to deter . . . misconduct in bankruptcy proceedings." $250,000 sanction against servicer was upheld when servicer's pleadings misrepresented that it was holder of loan. $25,000 sanction against servicer's local counsel affirmed for counsel's "utter disregard of its own internal files" and for violating Rule 9011 by filing documents misrepresenting servicer's status. $100,000 sanction against servicer's national counsel was vacated because national law firm did not present or sign any filings with bankruptcy court. $250,000 sanction against Wells Fargo, actual holder of loan, was vacated because Wells Fargo had no role in filing pleadings. "Through various filings and statements in open court, Ameriquest misrepresented its role in the case. Although this misrepresentation did not affect the outcome of the case, the Bankruptcy Court did not abuse its discretion in sanctioning Ameriquest." Local counsel for servicer "acted unreasonably in relying on Ameriquest for the factual claims in its filings. Therefore, it was not an abuse of discretion for the Bankruptcy Court to sanction [local counsel].").
Hosley v. Wells Fargo Bank Minnesota, Nat'l Ass'n, No. 1:08-CV-752 (LEK), 2008 WL 5169553 (N.D.N.Y. Dec. 9, 2008) (unpublished) (Kahn) (Adopting Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348 (5th Cir. 2008), under Real Estate Settlement Procedures Act mortgage creditor is authorized to calculate and collect escrow amounts prior to advancing funds for insurance and taxes and unpaid prepetition escrow payments are claims in Chapter 13 case. Escrow shortage amounts may be included in postpetition monthly mortgage payments and creditor can increase mortgage payments to account for escrow shortages without violating automatic stay.).
Martinez v. Chase Home Fin. LLC, No. B-06-CV-139, 2008 WL 11428244 (S.D. Tex. Nov. 25, 2008) (Hanen) (Chapter 13 debtor failed to overcome summary judgment motion by Chase with respect to claims that Chase paid itself too much money when the debtor refinanced real property.).
Seaberry v. Cenlar FSB (In re Seaberry), No. 18-00044-NPO, 2019 WL 1590536 (Bankr. S.D. Miss. Apr. 12, 2019) (Olack) (Wrongful foreclosure and stay violation claims against mortgagee are dismissed. Foreclosure sale after dismissal and before order of reinstatement did not violate automatic stay, was properly noticed and validly executed. Informational letter from lender did not demand payment, was sent to debtor’s counsel and did not violate automatic stay.).
In re Boateng, No. 17-26830-TJC, 2019 WL 1574285 (Bankr. D. Md. Apr. 10, 2019) (Catliota) (On remand, bankruptcy court clarifies that Deutsche Bank as trustee for trust that holds mortgage has standing to seek stay relief. Deutsche Bank was bearer of the note and Nationstar / Mr. Cooper is servicer of debt.).
In re Parson, No. 18-41511, 2019 WL 1556651 (Bankr. E.D. Tex. Apr. 9, 2019) (Rhoades) (“Disruptive” pro se debtor’s objections to mortgage holder’s proofs of claim are overruled. Claims were timely, holders have standing, amounts were not disputed with any evidence, prior dismissed bankruptcy did not alter the claims and other objections were unsupported.).
In re Simpson, No. 16-24013-GLT, 2019 WL 1453069 (Bankr. W.D. Pa. Mar. 29, 2019) (Taddonio) (Chapter 13 debtor’s challenge to Wells Fargo’s mortgage claim is overruled. Rooker-Feldman doctrine precludes review of foreclosure judgment and its components. Debtor presented no proof to overcome prima facie validity of claim amount and did not prove miscalculation or misconduct by Wells Fargo.).
In re Ransom, 599 B.R. 791, 796–821 (Bankr. W.D. Pa. Mar. 28, 2019) (Agresti) (After nearly two years of litigation with trustee, Ocwen is found in contempt of court orders requiring complete loan histories in Chapter 13 cases in which Ocwen improperly filed 3002.1 notices of postpetition fees that were not recoverable. Trustee’s attorney’s fees up to $70,000 were payable by Ocwen and Ocwen’s outside counsel was reprimanded for misconduct before the bankruptcy court. “[T]he Court was operating from the premise that, unless otherwise qualified by an additional limiting term such as ‘partial’ or ‘post-petition,’ a loan history meant a record of the loan from the date of its inception up to the present. That was consistent with the language in the various default orders directed against Ocwen . . . . Those default orders provided that Ocwen was to provide ‘full and comprehensible loan histories from the inception of the loan.’ . . . Ocwen filed Affidavits . . . . According to the body of the Affidavit, allegedly attached to each of the Affidavits was a ‘complete and accurate post-petition loan payment history.’ . . . Ocwen had failed to provide a ‘complete loan history’ . . . . Ocwen acknowledged that it had not provided complete loan histories . . . but then went on to argue that the Trustee’s definition was over broad and unnecessary. . . . Ocwen had actual knowledge . . . and an obligation arose in it to provide proof of removal of the charges and a complete loan history from the inception of the loan . . . . Ocwen did absolutely nothing to even attempt to comply with those orders. . . . [T]he testimony provided by the ‘Ocwen people’ as to why it responded . . . in the manner it did . . . is tortuous and contradictory to the point that the Court has no confidence in exactly what happened. . . . By ‘looking the other way’ and going along with Ocwen’s strained interpretation that he himself in all likelihood knew was incorrect, . . . Eisenberg put his own professional conduct and reputation at risk. If Ocwen insisted on acting under an interpretation . . . that he knew was wrong, Eisenberg could have chosen to withdraw from representation at that point. . . . Eisenberg was in essence not being candid with the Court, and acting contrary to the basic principle that court orders must be obeyed. . . . Ocwen should be found in civil contempt and sanctioned for its disobedience of and failure to comply with the respective Orders.”).
Coleman v. Countrywide Home Loans (In re Coleman), No. 07-10022, 2019 WL 1282759 (Bankr. D.D.C. Mar. 18, 2019) (Teel) (After dismissal of Chapter 13 case, motion for injunctive relief to stop foreclosure is denied for a multitude of procedural and substantive reasons including lack of jurisdiction and absence of bankruptcy purpose.).
Davis v. Bank of Am., N.A. (In re Davis), 597 B.R. 770 (Bankr. M.D. Pa. Mar. 11, 2019) (Opel) (Rooker-Feldman doctrine precludes debtor’s complaint challenging foreclosure judgment that was final and unappealed years before Chapter 13 petition. Foreclosure judgment and underlying lien were not affected by debtor’s prior Chapter 7 discharge
Trevino v. Select Portfolio Servicing, Inc. (In re Trevino), No. 16-7024, 2019 WL 1090165 (Bankr. S.D. Tex. Mar. 7, 2019) (Rodriguez) (Bankruptcy court denies reconsideration of order compelling arbitration of Chapter 13 debtors’ post-discharge adversary proceeding against mortgagee and servicers alleging violations of state and federal consumer protection laws, Code § 524(i), the discharge injunction, the automatic stay and Bankruptcy Rule 3002.1. The post-discharge context of adversary proceeding changed the calculus with respect to whether compelling arbitration would be inconsistent with bankruptcy principles.), denying reconsideration of No. 16-7024, 2018 WL 5994753 (Bankr. S.D. Tex. Nov. 14, 2018) (Rodriguez) (Arbitration clause is enforced against Chapter 13 debtor in adversary proceeding against mortgage servicer; servicer did not waive contractual right to arbitration by filing claim or by filing various motions in the Chapter 13 case.)).
Batten v. Panatte, LLC (In re Batten), No. 18-00061-5-DMW, 2019 WL 937566 (Bankr. E.D.N.C. Feb. 22, 2019) (Warren) (Chapter 13 debtors’ complaint against mortgagee is dismissed with leave to amend; state statute of limitations may have run with respect to debtor’s personal liability but not with respect to right of mortgagee to foreclose.).
Stout v. Ocwen Loan Servicing, LLC (In re Stout), No. 17-1048-JDL, 2019 WL 827683 (Bankr. W.D. Okla. Feb. 21, 2019) (Loyd) (In adversary proceeding in which Ocwen was found in contempt of order requiring adjustments to mortgage claim, debtors are not permitted to withdraw most of their deemed admissions under Bankruptcy Rule 7036 when subsequent deposition testimony contradicts the matters about which the debtors seek to withdraw admissions.).
Wells Fargo Bank, N.A. v. Winnecour (In re Wells Fargo Bank, N.A.), No. 17-204-GLT, 2019 WL 642850, at *2 (Bankr. W.D. Pa. Feb. 14, 2019) (Taddonio) (Under § 107(b), not appropriate to seal “confidential settlement” of litigation in which Wells Fargo (incomprehensibly) sued the Chapter 13 trustee 77 times to stop RESPA requests for loan histories from which trustee could evaluate whether Wells Fargo complied with settlement of other litigation with U.S. trustee. “[T]he Settlement Amount is not . . . scandalous or defamatory matter. Nor can there be any plausible assertion that it is a trade secret, confidential research, or development. . . . [T]he terms of a settlement agreement, including the amount of any settlement payments, are not ‘commercial information’ and, therefore, should not be restricted from public view.”).
In re Zalloum, No. 6:17-bk-02329-KSJ, 2019 WL 548545 (Bankr. M.D. Fla. Feb. 11, 2019) (Jennemann) (Objection to mortgage claim of BONY is frivolous, based on a fraudulent release of lien most likely fabricated by debtors. Debtor, spouse and related trust have abused bankruptcy system through four bankruptcy cases and five adversary proceedings that have allowed debtor to live in two homes without paying mortgages for nearly a decade. In rem stay relief is appropriate under § 362(d)(4)(B).).
Boltz-Rubinstein v. Bank of Am. (In re Boltz-Rubinstein), 596 B.R. 494 (Bankr. E.D. Pa. Feb. 8, 2019) (Frank) (Disputed facts preclude summary judgment with respect to whether BOA violated stay as servicer of loan when holder of mortgage had stay relief. Mortgage holder failed to produce contract or other proof of agency.).
In re Dancel, No. 18 BK 01399, 2019 WL 521177 (Bankr. N.D. Ill. Feb. 5, 2019) (Schmetterer) (Applying Illinois law, consent foreclosure between debtor and senior lienholder that did not preserve rights of junior lienholder precludes deficiency claim by junior lienholder in Chapter 13 case.).
Gustavia Home, LLC v. U.S. Bank Nat’l Ass’n (In re Bellamy), No. 17-8021-ast, 2019 WL 137135 (Bankr. E.D.N.Y. Jan. 8, 2019) (Trust) (Junior lienholder’s complaint against senior lender states a claim for subordination and unjust enrichment, when, without notice to junior lienholder, first lienholder and Chapter 13 debtor modified senior lien to deal with defaults by debtor. Modification did not advance new money but did change principal amount owed and other terms.).
In re Thornburg, 596 B.R. 766, 771–72 (Bankr. M.D. Fla. Dec. 20, 2018) (Jennemann) (Chapter 13 debtor overcame presumption of validity of proof of claim for $324,664.89 and current holder of debtor failed to prove amount due in excess of $50,000 the debtor admits. Outcome driven mostly by inconsistent and incomplete loan history supplied by creditor. Current holder of debt filed a proof of claim in excess of $324,000. “DBI has no actual knowledge whether [Chase] advanced more than $50,000 because they received the assigned loan in 2014, years after these events occurred. . . . DBI was relying entirely on the documents it received during the loan transfer and then reconstructed the loan history to show the Debtor received advances of more than $50,000. . . . But that reconstruction . . . lacks credibility and consistency. DBI filed three contradictory loan history reconstructions. . . . DBI filed a payment history . . . replete with unexplained acronyms, of an unknown origin . . . . There are . . . lines in the payment history that the Court cannot decipher. The Court, after making a diligent effort, could not interpret DBI’s contradictory payment histories with sufficient accuracy or confidence to conclude the Debtor owes DBI over $324,000. . . . DBI has failed to prove the amounts advanced under the line of credit to the Debtor, other than the $50,000 she admits.”).
In re Okafor, 595 B.R. 903, 907–10 (Bankr. W.D. Mo. Dec. 17, 2018) (Dow) (California attorney allowed reduced fee of $600 for review of plan and filing proof of claim in Chapter 13 case in Missouri. California attorney did not practice law unlawfully in Missouri because work was done in California and attorney did not make appearance in Missouri bankruptcy court. Requested fee of $900 was unreasonable. Bank instead allowed two hours at $300 per hour. Debtor objected to notice of postpetition mortgage fees, expenses and charges by Bank of New York Mellon. Bank retained a national law firm in California to review the debtor’s plan and prepare the proof of claim. The attorneys were not licensed in Missouri. Attorneys filed notice of postpetition mortgage fees, expenses and charges requesting $550 for preparing the proof of claim and $350 for reviewing the plan. “The plain language of the Deed of Trust authorizes the allowance of attorneys’ fees in the case of the Debtors’ bankruptcy filing. . . . Reviewing the plan and filing a proof of claim are unquestionably appropriate actions to protect a lender’s interest in estate property. . . . Rule 9010 governs the authority of persons or entities to act in bankruptcy proceedings . . . . This Rule is not applicable here because the Attorneys did not appear before the Court. . . . If the preparation and filing of the proof of claim and review of the plan was [sic] all done outside of Missouri then it was not the unauthorized practice of law in Missouri by the out of state Attorneys. . . . [T]he review of a plan and filing of a proof of claim is [sic] not an appearance or practice before this Court. . . . Something more that [sic] an out-of-state attorney’s review of a Chapter 13 plan and preparing and filing a proof of claim (and the Notice of Fees that supplements such proof of claim) while in that other state is required to meet the threshold of unauthorized practice of law in Missouri. . . . Secured creditors are not entitled to be reimbursed for fees incurred in every action taken by their counsel. . . . Lender’s Attorneys have requested $900.00 . . . . These fees were likely flat fee amounts but the Court is not bound by an attorney’s flat fees. . . . While the Court believes that it was reasonable for the Attorneys to prepare and file a proof of claim and review the plan, it does not believe that $900.00 is a reasonable fee for a large law firm that regularly performs such tasks for lenders. The time and labor involved for these tasks should have been minimal for attorneys specializing in this area and familiar with the procedure. . . . [I]t would not be unreasonable for the legal tasks required to file a proof of claim and review the plan to take one (1) hour each. Thus, the Court finds that fees in the amount of $600.00 ($300.00/hour x 2 hours) is reasonable[.]”).
In re Evarts, No. 16-11056-BAH, 2018 WL 6584242 (Bankr. D.N.H. Dec. 12, 2018) (Harwood) (Debtor failed to rebut prima facie validity of mortgage claim and arrearage that included escrow shortage. Prepetition loan modification included large new “deferred principal” balance. Charges for force-placed insurance were ambiguously accounted for by mortgagee but not shown by debtor to be duplicative or excessive. Debtor’s own numbers supported large escrow deficiency.).
Opperwall v. Bank of Am., N.A. (In re Opperwall), No. 18-04090, 2018 WL 6133544 (Bankr. N.D. Cal. Nov. 21, 2018) (Lafferty) (Postdischarge adversary proceeding alleging that Bank of America agreed to modify mortgage is dismissed based on binding effect of confirmation of plan that said debtor would seek mortgage modification and preclusive effect of dismissal of prior adversary proceeding in which debtor made same allegations. Confirmation of plan that “assumed” mortgage modification was binding on debtor and BOA but did not modify underlying mortgage. Debtor was substantially in arrears after years of paying at rate in confirmed plan but debtor failed in two adversary proceedings to demonstrate that BOA agreed to a loan modification. Rule 9011 sanctions awarded to BOA
Coppola v. Wells Fargo Bank, N.A. (In re Coppola), 596 B.R. 140 (Bankr. D.N.J. Nov. 1, 2018) (Papalia) (Chapter 13 debtor’s complaint against Wells Fargo states plausible claims for relief under RESPA that Wells Fargo bungled loss mitigation application and failed to properly respond to requests for information by debtor.).
In re Pinnock, 594 B.R. 609 (Bankr. S.D.N.Y. Oct. 31, 2018) (Drain) (US Bank failed to produce evidence that allonge was firmly attached to the note thus it did not prove it was the holder or had the right to enforce the note secured by a lien on debtor’s home. US Bank’s claim was disallowed for lack of standing. However, § 506(d) voids only US Bank’s lien
In re LeBlanc, 593 B.R. 734 (Bankr. E.D. La. Oct. 30, 2018) (Magner) (In battle between lienholders with respect to priority, lien that was released in error by servicer without authority to do so is reinstated because the property description was ambiguous with respect to which of two lots was encumbered; the reinstated mortgage is reduced in priority to the date when the description was corrected, allowing an intervening lienor to have priority.).
In re McGough, 592 B.R. 846 (Bankr. W.D. Wis. Oct. 26, 2018) (Furay) (In battle between CitiBank and First Tennessee, CitiBank has lien priority notwithstanding the absence of a notarization of one signature. First Tennessee was aware of CitiBank’s prior lien and Wisconsin law would protect CitiBank from First Tennessee based on notice of the prior lien.).
Zepeda Funez v. DLJ Mortg. Capital Inc. (In re Zepeda Funez), No. 17-00107, 2018 WL 4945690 (Bankr. D.P.R. Oct. 10, 2018) (Tester) (Debtor’s adversary proceeding stated plausible claim that disallowance of mortgagee’s claim in prior bankruptcy will support voiding of subsequent servicer’s lien under § 506(d).).
Trokie v. U.S. Bank Tr. Nat’l Ass’n (In re Trokie), 590 B.R. 663 (Bankr. M.D. Pa. Oct. 5, 2018) (Opel) (Complaint states a plausible claim that U.S. Bank and its servicing agent failed to properly apply payments after confirmation of plan in violation of §§ 1327 and 105(a). Chapter 13 debtors may be able to amend FDCPA claims to allege viable cause of action with respect to misapplication of payments and inaccurate accounting after confirmation.).
Faulkner v. M&T Bank (In re Faulkner), No. 17-276, 2018 WL 4810673 (Bankr. E.D. Pa. Oct. 3, 2018) (Frank) (Objection to mortgagee’s claim survives motion to dismiss when attachment of copy of note does not establish possession of note or right to enforce note. Dismissal of state court foreclosure because it was not properly verified did not invalidate mortgage for Rooker-Feldman purposes. Mortgagee’s rights were fixed by merger doctrine after foreclosure judgment in 2003 and mortgagee’s attempt to vacate that judgment does not revive the mortgage. Pennsylvania Act 6 applies to mortgage and may preclude collection of legal expenses because mortgagee did not comply with preforeclosure requirements.).
Young v. Rogers (In re Young), No. 18-1070-JDL, 2018 WL 4621645 (Bankr. W.D. Okla. Sept. 24, 2018) (Loyd) (After multiple bankruptcy cases to stop foreclosure and to overcome writs of possession, Rooker-Feldman precludes further challenge to foreclosure, to standing of mortgagee and the like.).
Beiter v. Chase Home Fin., LLC (In re Beiter), 590 B.R. 446 (Bankr. S.D. Ohio Sept. 14, 2018) (Preston) (In adversary proceeding after discharge alleging Chase misapplied payments, failed to treat mortgage as current and violated Bankruptcy Rule 3002.1, most of complaint survives motion to dismiss. Chase admitted it failed to correctly apply at least one payment and failed to give at least one notice of mortgage payment change required by Rule 3002.1. “Deemed current” order at end of case required Chase to fix amount of mortgage based on amortization schedule with any unclaimed arrearage or fees discharged. Complaint stated a claim that Chase violated that order by seeking to collect amounts that were discharged.).
Crymes v. Ocwen Loan Servicing, LLC (In re Crymes), No. 18-01000-rlj, 2018 WL 4006320 (Bankr. N.D. Tex. Aug. 20, 2018) (Jones) (Shotgun complaint against mortgagee and servicer is dismissed. RICO count fails because no conspirators are identified and no predicate criminal activity is pleaded. Standing to seek stay relief and to foreclose is evident from assignments and debtor lacks standing to challenge assignments. No basis for damages or sanctions is apparent.).
In re Eastman, 588 B.R. 600 (Bankr. D. Colo. July 20, 2018) (Rosania) (Applying Colorado law, mortgagee’s claim is not barred by statute of limitations with respect to unpaid installments due more than six years before acceleration because Colorado law allows option for mortgagee to accelerate the entire unpaid balance
In re Blas, No. 17-00411-GS, 2018 WL 3343490 (Bankr. D. Alaska July 5, 2018) (Spraker) (Chapter 13 debtor’s objections to mortgage claim based on TILA, RESPA, RICO and various other state and federal statutes and theories are barred by res judicata based on numerous determinations by state court in years of protracted litigation between debtor and mortgagee.).
D’Alessio v. CIT Bank, N.A. (In re D’Alessio), 587 B.R. 211 (Bankr. D. Mass. June 11, 2018) (Katz) (Holder of reverse mortgage defeats confirmation of plan that does not provide for payment of entire loan when debtor is not a “borrower” under the loan documents and spouse who was the borrower is deceased. Debtor owns the house by inheritance but lender’s claim is due in full because spouse who died is only borrower under the loan documents. Holder of reverse mortgage is entitled to stay relief when debtor inherited property subject to reverse mortgage upon death of spouse and debtor is not a borrower under the loan documents. Plan proposed to cure prepetition real estate tax arrears but plan did not pay balance of reverse mortgage that became due upon the death of the debtor’s spouse. Lender successfully argued that any confirmable plan must at least provide for payoff of the entire outstanding loan amount.).
Creutz v. U.S. Bank Nat’l Ass’n (In re Creutz), No. 17-1110, 2018 WL 2733942, at *4–*5 (Bankr. D. Mass. June 5, 2018) (Hoffman) (Although assignee of mortgage claim is not liable for the misconduct of its assignor, Chapter 13 debtor’s objection to assignee’s claim based on misconduct by the loan originator/assignor survives as a recoupment defense to the assignee’s claim. A Chapter 13 debtor claimed that the loan originator in 2006 fabricated the loan application and misstated the debtor’s income and other information on the forms. U.S. Bank became holder of the loan and all of the alleged improper or illegal behavior described by the debtor was perpetrated by the loan originator. “U.S. Bank is the holder of the note by assignment . . . . A loan servicer cannot be charged with liability for the misconduct of a loan originator or lender with whom it had no relationship. . . . On the other hand, . . . Mr. Creutz’s [sic] may assert his . . . claims defensively against U.S. Bank for purposes of reducing or eliminating amounts claimed by U.S. Bank. . . . Mr. Creutz’s objection to U.S. Bank’s proof of claim grows out of the 2006 loan transaction and thus sounds in recoupment. . . . [T]o the extent U.S. Bank’s claim rests on the 2006 note and mortgage, its claim is subject to recoupment based on Mr. Creutz’s . . . claims.”).
In re Milliman, No. 17-10393, 2018 WL 1475937, at *2–*5 (Bankr. D. Kan. Mar. 23, 2018) (Nugent) (Ocwen Loan Servicing’s stubborn refusal to correct overstatement of escrow shortage on proof of claim triggers sanctions under Bankruptcy Rule 3001(c)(2)(D) for attorney fees and expenses incurred by the debtors to correct the mistake. Ocwen filed a Mortgage Proof of Claim Attachment stating an escrow shortage of $4,383.26. Ocwen’s counsel filed an Official Form 410S2 notice of postpetition mortgage fees requesting an allowance of $400 for filing the proof of claim. After months of fruitless inquiries to Ocwen and its counsel about the escrow shortfall the debtors objected to Ocwen’s proof of claim and served discovery. Ocwen did not respond. “At the claim objection hearing, [counsel] admitted that Ocwen filed an erroneous initial claim, conceded that the escrow shortage was much less than represented, and apologized for his client’s error. . . . [T]he claim lacked ‘an itemized statement of . . . charges’ as required by Rule 3001(c)(2)(A), an accurate statement of the ‘amount necessary to cure’ as required by Rule 3001(c)(2)(B), and accurate information on the Attachment that is required to be filed by Rule 3001(c)(2)(C). That opens the door to sanctions as provided by Rule 3001(c)(2)(D). . . . Accurate information is particularly critical in a chapter 13 . . . . For reasons unexplained, Ocwen didn’t do it right. And, when called upon to explain or correct its misstatements, Ocwen and its counsel failed to meaningfully respond to the debtors’ concerns, their lawyers’ informal inquiries, or even their formal discovery efforts. . . . Ocwen and any other creditors who read this need to know that courts take filing incorrect proofs of claim seriously. We get more serious (and suspicious) when creditors are unresponsive or evasive about their errors and refuse to fix them. Bankruptcy judges cannot permit an environment to exist in which claims supposedly filed under penalty of perjury can no longer be trusted to be correct without rendering Rule 3001’s presumption of validity meaningless. This would cripple the ability of the bankruptcy system to function efficiently. Filing accurate claims is a bedrock requirement and, as I said at the top, it’s not that hard.”).
In re Klave, No. 2:16-bk-14246-DPC, 2018 WL 1214377, at *2–*3 (Bankr. D. Ariz. Mar. 7, 2018) (unpublished) (Collins) (Mortgage modification program in the district requires that all mortgage payments pursuant to a modification must be conduit payments through the Chapter 13 trustee unless the mortgagee agrees otherwise; plan that proposes to pay modified mortgage directly by the debtor cannot be confirmed without the agreement of the mortgagee. “Conduit payments are an important feature of the [Mortgage Modification Mediation] Program adopted by this District. In some measure, mortgage creditors are induced into participating in the MMM Program because they are aware of the Court’s requirement that payments to them will be monitored by a chapter 13 trustee and will be passing through the hands of that trustee. Conduit payment arrangements eliminate the tiresome controversy that arises when a debtor claims to have made a mortgage payment and the mortgage creditor claims to have not received such payment. Under the MMM Program, the chapter 13 trustee, in effect, becomes the official scorekeeper when he or she keeps track of all mortgage payments received and disbursed. . . . Troublesome record keeping issues dissolve when a conduit plan is approved by the Court. . . . [U]pon the Debtors’ filing of a modified plan after a mortgage modification has been established, the Debtors must gain the Home Lender’s written consent to eliminate conduit payments to that creditor before this Court will enter an order approving the Amended Plan.”).
Peterson v. Wells Fargo Bank, N.A. (In re Peterson), No. 15-2008 (AMN), 2018 WL 1172462 (Bankr. D. Conn. Mar. 2, 2018) (Nevins) (Debtor’s complaint that Wells Fargo inappropriately delayed confirmation of Chapter 13 plan by making unreasonable objections to confirmation is dismissed for the most part. Feasibility objection to confirmation was not unreasonable when funding of the plan depended on speculative collection of state court judgments. Wells Fargo should have refunded more quickly a portion of payments from the trustee that caused debtor to incur some additional interest costs that must be compensated. FDCPA claims appear to be time-barred but Wells Fargo has not had a chance to respond.).
Hicks v. U.S. Bank Nat’l Ass’n (In re Hicks), No. 16-01019, 2018 WL 1115367 (Bankr. S.D. Ga. Feb. 27, 2018) (Barrett) (Claim that U.S. Bank repeatedly rejected debtor’s completed loan modification application based on fabricated deficiencies states a cause of action for breach of contract because loan documents conditioned foreclosure on compliance with HUD regulations. In contrast, complaint fails to state direct cause of action under HUD regulations because there is no private right of action under HUD regulations.).
Davis v. CitiMortgage, Inc. (In re Davis), No. 14-96129, 2018 WL 587844 (Bankr. N.D. Ill. Jan. 25, 2018) (Lynch) (Years after stay relief to foreclose and withdrawal of proof of claim, CitiMortgage is denied summary judgment in debtor’s adversary proceeding challenging validity of mortgage. Material disputed facts remain with respect to undated allonge to note and inconsistent assertions by Citi and its predecessors with respect to what entity has right to foreclose.).
Martin v. JPMorgan Chase Bank, N.A. (In re Martin), No. 17-06042-KMS, 2017 WL 6803550 (Bankr. S.D. Miss. Dec. 28, 2017) (Samson) (Complaint challenging prepetition foreclosure fails to state claims under § 547 or 548, under the FDCPA, under RESPA or under common law. Chase did not realize more than it would have as a mortgagee in a Chapter 7 case. No claim is made that the foreclosure was constructively fraudulent. Chase was not a debt collector for FDCPA purposes and no private right of action under RESPA is pleaded.).
In re Lee, No. 4-17-bk-00062-JJT, 2017 WL 6506325 (Bankr. M.D. Pa. Dec. 19, 2017) (Thomas) (Confirmation and claims litigation are reopened to determine correct amount of mortgage arrearage when mortgagee claims that the allowed amount of its debt was preclusively determined by foreclosure judgment in state court.).
Chase v. CitiMortgage, Inc. (In re Chase), 578 B.R. 43 (Bankr. D. Mass. Dec. 13, 2017) (Feeney) (CitiMortgage did not violate confirmation order and did not commit an unfair or deceptive trade practice by refusing one mortgage payment when Chapter 13 case had been dismissed based on debtor’s substantial defaults under the plan.).
In re Whitfield, No. 16-10709 ELF, 2017 WL 5484769 (Bankr. E.D. Pa. Nov. 10, 2017) (Frank) (Presumptive accuracy of arrearage claim for force-placed insurance was overcome by erratic record keeping by mortgagee and failure of mortgagee to respond to discovery with proof of payments of insurance premiums. Mortgagee’s failure to give notices required by Pennsylvania Homeowner’s Emergency Mortgage Assistance Program violated condition precedent to contractual right to recover attorney fees as part of arrearage claim.).
Wilmington Sav. Fund Soc’y, FSB v. Garza (In re Garza), No. 15-80446, 2017 WL 5197857 (Bankr. S.D. Tex. Nov. 9, 2017) (Isgur) (Mortgagee withdrew notice of acceleration and issued new notice that preserved four-year power to foreclose under Texas law. Rescission of mistaken release of lien was effective under Texas law.).
Cawood v. Seterus, Inc. (In re Cawood), No. 1:15-AP-1116-SDR, 2017 WL 4404258 (Bankr. E.D. Tenn. Sept. 29, 2017) (Rucker) (Bankruptcy court denies motions to dismiss class action complaint alleging that Seterus and others “willfully and systematically” failed to properly account for mortgage payments in Chapter 13 cases. Plaintiff’s home went into foreclosure after completion of Chapter 13 case that cured defaults and after a 3002.1 order in prior case declaring mortgage current. Bankruptcy court has jurisdiction over various state and federal causes of action that do not require enforcement of discharge because mortgage was not discharged in prior Chapter 13 case. Actions for damages do not implicate discharge but affect assets and liabilities in current Chapter 13 case. Determination of nationwide class action status is premature.).
Scott v. Nationstar Mortg., LLC (In re Scott), No. 16-3106-BJH, 2017 WL 4457432 (Bankr. N.D. Tex. Sept. 22, 2017) (Mullin) (Adversary proceeding challenging force-placed insurance charges and escrow calculations is barred by res judicata effect of order approving trustee’s recommendations with respect to allowance of claims when one of the claims approved by that order was the claim later challenged in the adversary proceeding.).
In re Tanner, No. 12-01429, 2017 WL 3641575, at *2
Baker v. Nationstar Mortg., LLC (In re Baker), 574 B.R. 184, 190, 192 (Bankr. D. Idaho July 28, 2017) (Pappas) (Allegation that Nationstar lied to induce debtor not to file Chapter 13 so Nationstar could foreclose failed to state cause of action under § 548 or § 544. With loan modification paperwork pending, a Nationstar representative told the debtor that a scheduled trustee’s sale would be postponed. The next day, Nationstar foreclosed and sold the debtor’s home to a good-faith purchaser. Applying BFP v. Resolution Trust Corp., 511 U.S. 531, 114 S. Ct. 1757, 128 L. Ed. 2d 556 (May 23, 1994), “the facts Plaintiff alleges are insufficient to overcome the conclusive presumption that the sale to Defendant was for reasonably equivalent value.” With respect to § 544(b)(1), “the presence of fraud alone does not render the foreclosure sale to a bona fide purchaser void.”).
Anger v. Wells Fargo Bank, N.A. (In re Anger), No. 15-00109-TOM, 2017 WL 2859753 (Bankr. N.D. Ala. July 3, 2017) (Mitchell) (Debtor failed to prove that Wells Fargo was a debt collector for purposes of the FDCPA; debtor also failed to prove that Wells Fargo made any (mis)representation with respect to modification of the debtor’s mortgage.).
In re Reddy, No. 16-50689 (JAM), 2017 WL 2484825 (Bankr. D. Conn. June 8, 2017) (Manning) (State court judgment of strict foreclosure is preclusive and Rooker-Feldman bars the bankruptcy court from considering debtor’s argument that Specialized Loan Servicing is not a creditor; Specialized is entitled to stay relief.), aff'd, No. 3:17-cv-1067 (VAB), 2019 WL 1242896 (D. Conn. Mar. 18, 2019) (Bolden).).
Lofton v. Beneficial Fin. I Inc. (In re Lofton), 569 B.R. 747 (Bankr. W.D. Wis. June 5, 2017) (Furay) (Transfer of servicing to Beneficial occurred by merger or acquisition, which fits exception to notice requirement in 12 C.F.R. § 1024.33(b)(2)(i)(B).).
Akers v. 1368 H St., LLC (In re Akers), No. 16-00600, 2017 WL 1684114 (Bankr. D.D.C. May 2, 2017) (unpublished) (Teel) (Chapter 13 trustee is dismissed from debtor’s adversary proceeding alleging wrongful foreclosure.).
Brandao v. Federal Nat'l Mortg. Ass'n (In re Brandao), 567 B.R. 396 (Bankr. D. Mass. Apr. 7, 2017) (Bailey) (Chapter 13 debtors failed to prove bad faith, fraud or any other misconduct by GMAC in connection with prepetition foreclosure.).
In re Lisse, 567 B.R. 813 (Bankr. W.D. Wis. Mar. 29, 2017) (Furay) (Sanctions are not appropriate in litigation between Chapter 13 debtor and mortgage servicer, sub-servicer and the trust that once held the mortgage.).
In re Sandlin, 565 B.R. 337, 338 (Bankr. W.D. Pa. Mar. 20, 2017) (Böhm) (“Debtor was denied a loan modification by Ocwen Loan Servicing, LLC (‘Ocwen’) through the Court’s Loss Mitigation Program (‘LMP’). Ocwen denied the loan modification indicating that the Debtor cannot assume the mortgage executed by her late fiancé. The Debtor now alleges Ocwen violated the good faith requirement of the LMP because it knew, at the outset of the case, that the Debtor could not assume the subject mortgage and should have objected to the Debtor’s request to participate in the LMP. The Court finds that a lender’s denial of a loan modification after timely inquiry and determination that a mortgage cannot be assumed by a debtor does not run afoul of the lender’s duty to participate in loss mitigation in good faith[.]”).
Smith v. JP Morgan Chase Bank, N.A. (In re Smith), No. 1:09-bk-15572-NWW, 2017 WL 943905 (Bankr. E.D. Tenn. Mar. 9, 2017) (Whittenburg) (Creditor holding first and second mortgages did not violate the stay, the discharge injunction, contractual obligations or any other law when it returned overpayments on first lien after debt was paid in full and sought to foreclose second lien nearly a year after completion of payments and discharge. Debtor did not make direct payments on second mortgage.).
In re Mobley, 580 B.R. 453 (Bankr. D.S.C. Feb. 2, 2017) (Waites) (Subpoena to Vanderbilt Mortgage is upheld seeking data on Vanderbilt’s treatment of loan modification applications from Chapter 13 debtors. Debtor alleges that Vanderbilt did not act in good faith during the loss mitigation / mortgage modification process and that Vanderbilt’s vague reasons for denial of debtor’s mortgage modification request are part of a pattern and practice by Vanderbilt.).
In re Hunt, No. 14-13109 tf13, 2016 WL 8115493 (Bankr. D.N.M. Dec. 23, 2016) (Thuma) (After contentious litigation and mortgage mitigation efforts, debtor’s attorney not entitled to recover fees from lender or servicer under any statutory or common law theory
Lafayette v. Ocwen Mortg. Servicing (In re Lafayette), 561 B.R. 917 (Bankr. N.D. Ga. Dec. 16, 2016) (Baisier) (Debtor’s incomprehensible complaint against Ocwen is dismissed because it was not served consistent with Bankruptcy Rule 7004(a)(1) and it fails to state any claim that was not previously adjudicated against the debtor in four other lawsuits with respect to a foreclosure.).
Hurlburt v. Black (In re Hurlburt), No. 16-01964-5-SWH, 2016 WL 7076980 (Bankr. E.D.N.C. Dec. 5, 2016) (Humrickhouse) (Mortgagee holds valid lien under North Carolina law when deed of trust references note, notwithstanding that deed of trust says debt is $0.00.).
Giuffre v. Deutsche Bank Nat’l Trust Co. (In re Giuffre), No. 15-14223-JNF, 2016 WL 6090844 (Bankr. D. Mass. Oct. 18, 2016) (Feeney) (Complaint alleging mortgage was void because debtor did not have personal liability on note was precluded by prior court determination that mortgage was enforceable.).
In re Wells, No. 15-31826-BKC-LMI, 2016 WL 5819798 (Bankr. S.D. Fla. Oct. 5, 2016) (Isicoff) (Debtor failed to prove modification of loan that funded mortgage rescue.).
McGinness v. Select Portfolio Servicing (In re McGinnis), No. 4:14-bk-12403-SDR, 2016 WL 5403576 (Bankr. E.D. Tenn. Sept. 27, 2016) (Rucker) (Failure to plead any useful facts is fatal to adversary proceeding challenging validity of mortgage.).
In re Parsons, No. 16-60059, 2016 WL 5173231 (Bankr. N.D. Ohio Sept. 21, 2016) (unpublished) (Kendig) (Default foreclosure judgment that declared first mortgagee had no interest in the debtor’s residence was not entitled to preclusive effect in debtor’s action to avoid first mortgage as a defense to stay relief.).
In re Davis, 557 B.R. 433, 441–43 (Bankr. D.S.C. Sept. 6, 2016) (Waites) (Shellpoint Mortgage Servicing’s failure to undertake loss mitigation and mortgage modification in good faith results in assessment of attorney fees and a civil contempt sanction of $1,000. Shellpoint did not timely respond to loss mitigation application and did not tell debtor on front end of seven-month-long process that debtor was not eligible for loss mitigation because of Shellpoint’s contract with debtholder. “Shellpoint failed to comply with the requirement to act in good faith when it failed to disclose at the outset of the LM/MM process that Debtors’ loan could never be modified because Shellpoint and the master servicer lacked the contractual authority to modify Debtors’ loan. . . . Shellpoint should have disclosed Debtors’ ineligibility to obtain a mortgage modification upfront at the beginning . . . . This case is a prototypical example of the conduct and communication issues which have plagued LM/MM reviews and motivated this and other courts to implement a court-supervised Loss Mitigation and Mortgage Modification Program as a means to encourage transparent and efficient LM/MM reviews. . . . Debtors have unnecessarily incurred attorney’s fees . . . . [T]he Court finds that imposing an additional civil contempt sanction of $1,000 is necessary to deter similar conduct in the future by Shellpoint.”).
Loy v. Federal Home Loan Mortg. Corp. (In re Loy), 557 B.R. 569 (Bankr. N.D. Ohio Aug. 22, 2016) (Gustafson) (Objection to claim of Federal Home Loan Mortgage Corporation is dismissed in part based on Rooker-Feldman effect of state court foreclosure judgment; claim did not contain duplicate charges or mathematical errors as alleged by debtors.).
In re Sellers, 555 B.R. 479 (Bankr. E.D. Pa. Aug. 3, 2016) (Frank) (On reconsideration, debtor’s attorney is not entitled to attorney fees under Pennsylvania’s Loan Interest Protection Law because provisions of this state law were raised as a defense to the allowance of Nationstar’s claim, not as an affirmative claim under the Act itself.).
In re Tavares, 547 B.R. 204, 218-21 (Bankr. S.D. Tex. Mar. 11, 2016) (Rodriguez) (Mortgagee's claim for reimbursement of postpetition property taxes triggered Bankruptcy Rule 2016. Mortgagee's failure to file Rule 2016 statement before seeking reimbursement of taxes forfeited right to reimbursement. In addition, repeated RESPA violations—failing to provide regular escrow analysis—forfeited mortgagee's right to recover postpetition taxes and interest. "Rule 2016 is implicated because the ad valorem tax payments on behalf of Debtor are an administrative, necessary post-petition expense. . . . [A] post-petition tax liability is appropriately understood to be a § 503(a) administrative expense. . . . [Mortgagee] should have filed an application or claim for administrative expenses after each and every such payment, rather than effectively operating as a shadow brokerage with shadow accounting methods. . . . [S]eeking to recover the administrative expenses through the accounting practices employed by [mortgagee] is, in reality, a violation of the order confirming the plan. . . . [Mortgagee] failed to follow the appropriate process by filing an application pursuant to Rule 2016(a) and receiving permission from this Court to apply the payments received from the Trustee against the 'accruing' postconfirmation administrative expenses. . . . [U]nder the dictates of § 503 and Rule 2016(a), [mortgagee] is barred from claiming administrative expenses. . . . Finding serial RESPA violations here is an easy task. . . . There is no evidence in the record that an escrow account notice, which would have become due in January of every year, was ever submitted to Debtor when [mortgagee] paid post-petition ad valorem taxes on Debtor's behalf . . . . [T]he proper remedy for a failure to abide by the required notice of escrow account analysis under RESPA is essentially a death knell: deeming a waiver of any right to recover any deficiencies encompassed by the failed period. . . . [Mortgagee] is deemed to have waived any right to recover any post-petition claim for uncollected taxes, accrued interest or the like. . . . [D]isgorgement back to the Trustee is the appropriate remedy.").
In re Stainback, No. 11-50372, 2016 WL 6649198 (Bankr. M.D.N.C. Mar. 8, 2016) (James) (Trustee is not authorized to disburse funds to mortgagee when erroneous release of mortgage can be but hasn’t been corrected by filing of document of rescission. Instead, stay relief is granted to allow mortgagee to file the missing document of rescission if it wishes to do so. On convoluted facts, HSBC transferred its first mortgage to Caliber Home Loans but retained its executed but unrecorded second mortgage. For reasons never explained, HSBC erroneously cancelled the first deed of trust after it was no longer the holder of that debt. The trustee was left with $8,250 that should have been paid on account of the first mortgage but wasn’t because HSCB erroneously cancelled that deed of trust. The bankruptcy court declined to save HSBC from the mess it created but opened the door to allow HSBC to correct its own mess.).
In re Lapeyre, 544 B.R. 719 (Bankr. S.D. Fla. Jan. 25, 2016) (Mark) (Surrender of property to mortgagee in confirmed plan precludes debtor from raising affirmative defenses and counterclaims in subsequent state court foreclosure action.).
In re O’Hara, No. 14-11086, 2016 WL 321317 (Bankr. M.D. La. Jan. 21, 2016) (Dodd) (Sheriff’s fees, costs and commission are recoverable under mortgage. HAMP loan modification did not preclude lender from recovering sheriff’s fees, costs and commissions in subsequent Chapter 13 case.).
In re Prada, No. 14-25315-EPK, 2015 WL 7873749, at *1 (Bankr. S.D. Fla. Dec. 3, 2015) (Kimball) (Mortgage modification agreement that was offered by CitiMortgage and accepted by debtors, never signed by Citi but incorporated into confirmed plan is binding on Citi. "While the mortgage modification agreement itself was not an enforceable contract, the Debtors' chapter 13 plan was modified to incorporate the terms of the mortgage modification. Citi had appropriate notice of the proposed plan modification and the hearing thereon, and Citi failed to object to the proposed modification. The Debtors' plan as modified was confirmed . . . . Thereafter, Citi attempted to negate its deal with the Debtors by filing a notice of mortgage payment change inconsistent with the agreed modification. . . . Because the order confirming the Debtors' modified plan and the order directing Citi to comply with the terms of the loan modification are both final and no longer subject to appeal, Citi is bound by those orders in spite of the fact that the mortgage modification agreement would not otherwise have been binding on Citi.").
Cosentino v. Bank of Am., N.A. (In re Cosentino), No. 13-2304, 2015 WL 6681669 (Bankr. E.D. Wis. Oct. 30, 2015) (Kelley) (Oral agreement for loan modification reached during mediation was not enforceable.).
Petruncio v. Valor Fed. Credit Union (In re Petruncio), No. 5-15-ap-00023-JJT, 2015 WL 6150851 (Bankr. M.D. Pa. Oct. 19, 2015) (Thomas) (Delay in recording would not invalidate mortgage under Pennsylvania law when bona fide purchaser would be on notice of mortgage.).
Bank of Am., N.A. v. Gallo (In re Gallo), 539 B.R. 88 (Bankr. E.D.N.C. Sept. 23, 2015) (Humrickhouse) (Deed of trust signed only by wife would not be reformed to bind husband in wife's bankruptcy case when mortgagee's prepetition filing of lis pendens resulted in a voidable preference that would allow the trustee to avoid the deed of trust.).
Richardson v. PNC Mortg. (In re Richardson), 538 B.R. 594 (Bankr. M.D. Ala. Sept. 18, 2015) (Sawyer) (Mortgagee waived right to enforce balloon provision when it accepted continuing monthly payments that were less than balance on the note. Transfer of mortgage to new holder did not revive right to enforce balloon payment.).
Le v. Wells Fargo Bank, N.A. (In re Le), 537 B.R. 913 (Bankr. D. Minn. Sept. 18, 2015) (Kishel) (Prepetition sheriff's sale, expired redemption period and revesting of property in debtors at confirmation stripped bankruptcy court of jurisdiction over debtors' action against former mortgage holder.).
In re Moore, No. 12-40456-EJC, 2015 WL 5553534 (Bankr. S.D. Ga. Sept. 18, 2015) (Coleman) (Nothing in Bankruptcy Code or Rules required court approval of loan modification executed more than a year before petition.).
In re Townsend, No. 9:08-bk-12383-FMD, 2015 WL 5157505 (Bankr. M.D. Fla. Sept. 1, 2015) (Delano) (Confirmation of plan that surrendered real property did not preclude contest of state court foreclosure six years later when confirmed plan contained a reservation of "state law contract rights.").
In re Duckett, No. 05-39580, 2015 WL 5002522 (Bankr. N.D. Ohio Aug. 21, 2015) (Whipple) (Challenge to status of mortgage-holder or validity of foreclosure was barred by Rooker-Feldman doctrine—state court had determined that mortgage-holder was proper party to pursue foreclosure and foreclosure sale had been confirmed by state court.).
Jensen-Edwards v. Nationstar Mortg., LLC (In re Jensen-Edwards), 535 B.R. 336 (Bankr. D. Idaho Aug. 13, 2015) (Myers) (Rooker-Feldman doctrine precluded action against mortgage assignee when state supreme court affirmed mortgage-holder's interests in note and deed of trust and allowed foreclosure. Current holders were successors in interest to state court defendants and had properly acquired their interests. Bankruptcy court could not address debtor's challenges to assignee's claim without rejecting analysis by state supreme court.).
In re Zipser, No. 9:14-bk-12827-PC, 2015 WL 4571678 (Bankr. C.D. Cal. July 28, 2015) (unpublished) (Carroll) (Under California law party in physical possession of note endorsed in blank is a holder with standing to file proof of claim. Debtor did not have standing to challenge assignment to pooling and servicing agreement. Prior Chapter 7 discharge discharged only debtor's personal liability on note and did not extinguish mortgage lien on property.).
Jones v. Nationstar Mortg., LLC (In re Jones), 534 B.R. 588 (Bankr. D. Vt. July 23, 2015) (Brown) (Mortgage on property owned by married couple not signed by both spouses violated Vermont homestead law, but mortgagee deemed secured for a portion of its claim under theories of equitable subrogation and equitable lien.).
In re Razzi, 533 B.R. 469, 478-81 (Bankr. E.D. Pa. July 22, 2015) (Frank) (Rooker-Feldman doctrine did not preclude claim objection when debtor argued that he did not owe money for which creditor obtained default judgment and that he was a victim of fraud. Debtor's "'failure of consideration' and 'transactional fraud' defenses/objections to the validity of the Claim are not subject to Rooker-Feldman. . . . [T]hrough the claimed Judgment Fraud, the Debtor invokes what is known as the 'fraud exception' to res judicata. 'If a judgment has been procured by fraud or collusion, res judicata will not usually be an impediment to litigating a claim anew.' . . . [T]here is no evidentiary record and, without one, I cannot determine whether the fraud exception to res judicata applies and frees the Debtor to litigate his substantive defenses to [ ] claim.").
In re Thompson, No. 05-28262-svk, 2015 WL 4484238, at *4-*6 (Bankr. E.D. Wis. July 22, 2015) (Kelley) (On remand, payments to Wells Fargo on account of disallowed claim should be returned to trustee, not to debtor. "Wells Fargo and the Debtors were afforded all the protections of an adversary proceeding during the years of the pendency of this dispute. However, the prudent response to the district court's concerns is to revise the Court's original decision and order and require Wells Fargo to refund the payments to the Trustee for the benefit of the estate. . . . [T]he Debtors learned that Wells Fargo was claiming to own the mortgage note, but that the note was not properly endorsed to Wells Fargo. . . . [A]llowing Wells Fargo to keep payments on a mortgage note it does not own, subjects the Debtors to having to pay twice and constitutes unjust enrichment. . . . [P]ayments should be returned to the Trustee for the benefit of the estate."), on remand from Nos. 14-CV-1502-JPS, 14-CV-1522-JPS, 2015 WL 2454726 (E.D. Wis. May 29, 2015) (Stadtmueller), aff'g in part, vacating in part, 520 B.R. 731 (Bankr. E.D. Wis. Nov. 21, 2014) (Kelley) ((Bankruptcy court had jurisdiction to order return of payments made under plan on disallowed claim; mortgage payments made directly by the debtor are payments under the plan.), denying reconsideration of 520 B.R. 713 (Bankr. E.D. Wis. Oct. 21, 2014) (Kelley) (Debtors entitled to reimbursement of mortgage payments made during case when creditor's claim was disallowed for lack of standing. "However, merely because a creditor . . . does not have standing to enforce a note or foreclose on a mortgage, it does not necessarily follow that the note itself is invalid or the mortgage cannot be enforced by the proper party in interest." Debtors were not entitled to return of note or cancellation of indebtedness.).
In re Richmond, 534 B.R. 479 (Bankr. E.D.N.Y. July 21, 2015) (Craig) (Holder of mortgage note endorsed in blank had standing to enforce note under both New York and Maine law; noncompliance with pooling and servicing agreement was not grounds for debtor to challenge holder's standing.).
In re Calzadilla, 534 B.R. 216 (Bankr. S.D. Fla. June 17, 2015) (Mark) (Failed mediation under court's Mortgage Modification Mediation Program Procedures requires debtors to then surrender property, not just grant stay relief.).
McHugh v. Bank of Am., N.A. (In re McHugh), No. 14-3140, 2015 WL 3475520 (Bankr. N.D. Ohio June 1, 2015) (Whipple) (Debtor lacked standing to challenge assignment to pooling and servicing agreement when he was neither party to nor beneficiary of the PSA; even if assignment was flawed, neither note nor mortgage would be void under New York law.).
Bennett v. Bank of Am. Nat'l Ass'n (In re Bennett), 531 B.R. 68 (Bankr. E.D. Pa. May 12, 2015) (Frank) (Debtor lacked standing to challenge validity of mortgage executed by debtor's grantor based on alleged defects in grantor's title; as a stranger to probate estate from which grantor obtained title, debtor had no legally protected interest to challenge mortgage on basis of slander of title, claim to quiet title, civil conspiracy or fraud. Claim of unjust enrichment would not stand on mere fact that mortgagee knew of improvements debtor undertook at property prior to foreclosure action.).
In re Hosking, 528 B.R. 614, 618-24 (Bankr. S.D.N.Y. Apr. 20, 2015) (Morris) (Mortgage servicer's failure to participate in good faith in Loss Mitigation Program included failure to designate an individual with authority to settle and failure to reveal a down payment requirement. "Since 2009, the Southern District of New York has offered its Loss Mitigation Program in order to facilitate consensual resolutions between debtors and creditors whenever a debtor's residential property is at risk of foreclosure. . . . [T]he Procedures require that parties 'negotiate in good faith' . . . . 'Good faith' requires the parties to attend conferences, provide any requested memoranda, and produce representatives with settlement authority. . . . After five months in Loss Mitigation, Rushmore denied Debtor's request for a loan modification for failure to provide a down payment. The first time that Rushmore advised the Court and Debtor that a down payment was required in order to be considered for a loan modification was in the Denial Letter . . . . At no time was it made clear to the Court or to the Debtor that the failure to provide a down payment would result in automatic denial of a loan modification. . . . Instead of designating one contact person with settlement authority, as it was required to do, Rushmore designated a contact without any settlement authority and provided a string of 'contacts' to the Court—none of whom appeared to know anything about this specific loan or the exact reason for its denial. . . . For failing to participate in the Court's loss mitigation program in good faith, the Court awards the Debtor her actual damages incurred in participating in this loss mitigation process, including her travel to and from the Courthouse . . . expenses, and attorney's fees and costs.").
Monty v. U.S. Bank, N.A. (In re Monty), No. 13-1004, 2015 WL 1805922 (Bankr. D. Vt. Apr. 16, 2015) (unpublished) (Brown) (Bank entitled to enforce note. Affidavit combined with copy of original note indorsed in blank was sufficient to establish that note was indorsed and in possession of proper document custodian when bankruptcy petition was filed.).
Tederick v. US Bank Nat'l Ass'n (In re Tederick), No. 14-10971-RGM, 2015 WL 1594096 (Bankr. E.D. Va. Apr. 7, 2015) (Mayer) (Old deed of trust on property inherited by debtor may be barred by Virginia statute of limitations unless, after trial, equitable considerations require otherwise.).
Schroeder v. HSBC Bank U.S.A., N.A. (In re Schroeder), 532 B.R. 885 (Bankr. W.D.N.Y. Apr. 2, 2015) (Bucki) (Bankruptcy court had statutory and constitutional authority to address validity of mortgage lien on property sold at tax sale prepetition and reconveyed to debtor postpetition. The property was estate property under § 1306(a), and whether plan could address disputed secured claim stemmed from the bankruptcy case itself.).
In re Radewald, No. 14-33542, 2015 WL 1541414 (Bankr. E.D. Tenn. Mar. 30, 2015) (Bauknight) (Following prepetition foreclosure, bank entitled to full deficiency balance of $47,081.75 as unsecured claim when debtors produced no competent evidence that bank bid or subsequently sold the property for an amount materially less than fair market value.).
Tyrell v. Bank of Am. (In re Tyrell), 528 B.R. 790, 794 (Bankr. D. Haw. Mar. 21, 2015) (Faris) (Holder of note entitled to enforce note and mortgage. Note presented by BOA appeared to be original with "wet-ink signatures and all required endorsements." Release of mortgage based on bad check was error or mistake. Under Hawaii's Land Court statute the bankruptcy court had power to correct title.).
Fullinwider v. VFC Partners 25, LLC (In re Fullinwider), No. 14-03318, 2015 WL 1208033 (Bankr. S.D. Tex. Mar. 11, 2015) (Isgur) (Continued monthly interest payments on matured mortgage and delivery of a financial statement to lender constituted an acknowledgment of debt that defeated debtor's statute of limitations defense.).
Atkins v. Gelt Props., LLC (In re Atkins), 525 B.R. 594 (Bankr. E.D. Pa. Feb. 27, 2015) (Frank) (Transfers and assignments subsequent to initial recorded mortgage cannot be avoided by Chapter 13 debtor under § 544(a)(3) because they are not transfers of property of the debtor. Indexing of state court foreclosure decision defeats any bona fide purchaser claim of trustee for § 544(a)(3) purposes. Failure to accurately credit payments is not alone sufficient misconduct to subordinate or avoid claim of mortgagee.).
Pyle v. U.S. Bank Nat'l Ass'n (In re Pyle), No. 13-03252, 2015 WL 3956362 (Bankr. N.D. Tex. Feb. 24, 2015) (Hale) (Complaint failed to state a claim for relief under state or federal law against original mortgage lender that forged debtor's signature on note after discovery of error in property address. Claim of current holder of note was previously disallowed.).
In re Carrsow-Franklin, 524 B.R. 33, 47 (Bankr. S.D.N.Y. Jan. 29, 2015) (Drain) (Wells Fargo lacked standing to enforce note when it failed to prove it was holder of note endorsed in blank once debtor offered evidence challenging validity of blank endorsement sufficient to overcome presumption of validity. Evidence supported inference that Wells Fargo forged blank endorsement: (1) testimony of various witnesses for bank "show[ed] a general willingness and practice on Wells Fargo's part to create documentary evidence, after-the-fact, when enforcing its claims," (2) Wells Fargo witness described the endorsement of notes by Wells Fargo employees to Wells Fargo if there was a missing endorsement, (3) no evidence that anyone associated with party that allegedly made the blank endorsement caused the note to be stamped or signed in blank, (4) no evidence that any holder that preceded Wells Fargo caused a note endorsed in blank to be forwarded to Wells Fargo.).
Hanson v. HSBC Bank, USA, Nat'l Ass'n (In re Hanson), 525 B.R. 791 (Bankr. M.D. Fla. Jan. 27, 2015) (Glenn) (Abstention under 28 U.S.C. § 1443(c)(1) appropriate in claim objection alleging improper assignment of mortgage when issues were matters of state law that could be addressed in pending foreclosure action commenced four years before bankruptcy.).
In re Alonso, 525 B.R. 195, 202-07 (Bankr. D.P.R. Jan. 15, 2015) (Lamoutte) (Mortgagee cannot amend its claim three months before completion of payments to increase prepetition arrears from $3,763.84 to $13,298.34 when discrepancy was due to mistake by mortgagee, plan had fully paid original arrearage amount and unsecured creditors received funds that would have to be recovered. "[T]he Debtor's plan did not violate section 1322(b)(2) or (b)(5) since the Debtor paid the secured creditor pursuant to the arrearage amount it disclosed in its original proof of claim and amended her plan to pay the pre-petition arrears in conformity with the secured creditor's original proof of claim. . . . [T]he allowance of an amended proof of claim is an equitable determination . . . . The Debtor relied on the information provided by [the creditor] in the original claim. The secured creditor stopped receiving payments under the Debtor's plan in February 2011. It was not until more than three (3) years after receiving its last distribution under the Debtor's plan that the secured creditor filed its amended claim . . . . The late filing by [the creditor] to correct its own mistake left no time for the Debtor to take corrective action. . . . [I]t constitutes a dilatory tactic by the claimant which would result in unfair prejudice not only to unsecured creditors which have already received their distributions but also to the Debtor who paid the secured creditor as requested in its original proof of claim. . . . [A] tardily filed amended proof of claim constitutes a failed attempt by the secured creditor to correct a mistake which it had plenty of time to become aware of, but failed to diligently account for the Debtor's pre-petition mortgage arrears. . . . [T]he secured creditor waived its right to receive payment of the pre-petition mortgage arrearages[.]").
In re Santana, No. 14-30070-BKC-AJC, 2015 WL 240482 (Bankr. S.D. Fla. Jan. 15, 2015) (Cristol) (For purposes of local mortgage modification program, calculating adequate protection payment as 31% of gross monthly income does not include consideration of nonfiling spouse's income when only the debtor is liable to mortgagee and amount calculated based on only debtor's income covers taxes, insurance and a portion of principal and interest.).
Young v. Chase Home Fin. LLC (In re Young), 523 B.R. 114 (Bankr. S.D. Ohio Jan. 14, 2015) (Humphrey) (Under Ohio law, deed recorded in wrong county did not invalidate mortgage between mortgagor and mortgagee.).
In re Daly, No. 11-22368 (RDD), 2015 WL 196509 (Bankr. S.D.N.Y. Jan. 14, 2015) (unpublished) (Lane) (Wells Fargo, as master servicer under pooling and servicing agreement (PSA), had standing to file proof of claim when note was properly endorsed, assigned and delivered to the trust; debtor, a nonparty, could not assert noncompliance as a defense to enforcement of the note.).
McDaniel v. SunTrust Bank (In re McDaniel), 523 B.R. 895 (Bankr. M.D. Ga. Dec. 22, 2014) (Laney) (Claims for wrongful foreclosure, tortious interference with property rights and attorney fees could be pursued by debtor against parties responsible for prepetition foreclosure by entity that did not hold deed of trust.).
Huff v. Gallagher (In re Huff), 521 B.R. 107 (Bankr. E.D.N.C. Dec. 5, 2014) (Humrickhouse) (Res judicata did not preclude debtors' challenge to note and deed of trust when debtors appealed foreclosure sale authorization; factual disputes precluded summary judgment on issues of lack of consideration and unconscionability.).
Meredith v. Wells Fargo Bank, N.A. (In re Meredith), No. 14-03123-KRH, 2014 WL 6845444 (Bankr. E.D. Va. Nov. 26, 2014) (Huennekens) (Adversary proceeding commenced after completion of plan and closure of case to unwind stay relief and foreclosure on ground that bank did not have standing dismissed; action was untimely; action would have no impact on bankruptcy estate and state law issues could be presented to state court.).
Deutsche Bank Nat'l Trust Co. v. Lom Prop. Corp. (In re Allen), 520 B.R. 281 (Bankr. E.D. Mo. Oct. 15, 2014) (Surratt-States) (Assignee's actual and constructive notice of facts that put it on inquiry notice of issues in chain of title precluded conclusion that it would be unduly prejudiced by reformation of prior deed of trust.).
In re Merhi, 518 B.R. 705 (Bankr. E.D.N.Y. Oct. 10, 2014) (Craig) (Rooker-Feldman doctrine and res judicata barred challenge to prepetition foreclosure judgment.).
In re Doble, No. 13-229090-ABA, 2014 WL 4961168, at *4 (Bankr. D.N.J. Oct. 2, 2014) (unpublished) (Altenburg) (Mortgage servicer's failure to disclose that loan modification may not be available to debtor was not alone bad faith. There was no evidence that servicer deceived debtor, altered policies midcourse, or otherwise failed to communicate with debtor. "'Participation in the LMP does not require loan modification, it requires the parties to work toward an acceptable resolution whenever possible. . . . ' . . . Servicers used the additional documents they requested to investigate non-loan modification loss mitigation alternatives such as a short-term repayment or forbearance agreement and liquidation options such as a deed in lieu of foreclosure or a short sale. This conduct does not suggest Servicers working in bad faith but instead demonstrates Servicers were working to find a viable loss mitigation solution for the Debtor. While the Debtor was not happy with the results, a '[d]ebtor's unhappiness with [the mortgage holder's] proposal is not indicative of bad faith, in itself, nor does the duty to negotiate in good faith guarantee a positive outcome.'").
Sperry Assocs. Fed. Credit Union v. U.S. Bank, Nat'l Ass'n (In re White), 514 B.R. 365 (Bankr. E.D.N.Y. Aug. 14, 2014) (Craig) (Prepetition modifications of senior residential mortgage that neither increased interest rate nor increased principal amount secured by lien did not impair junior lienholder's position and provided no basis to subordinate any portion of senior mortgage.).
In re Galindez, 514 B.R. 79, 102-05 (Bankr. D.P.R. July 31, 2014) (Lamoutte) (Creditor's failure to comply with Bankruptcy Rule 3002.1 after trustee's notice of final cure supports holding that prepetition arrears were paid in full notwithstanding creditor's untimely effort to prove otherwise. "Pursuant to Fed. R. Bankr.P. 3002.1(g) the creditor upon whom the Final Cure Notice is served must file a statement and in turn serve it upon the Chapter 13 Trustee, the debtor and debtor's counsel within 21 days after service of the notice. This statement includes the following: (i) whether the creditor agrees that the debtor has paid all arrearages in full to cure any default in the mortgage; and (ii) whether the debtor is current on all payments required by § 1322(b)(5). . . . If the debtor is not current, then the creditor must itemize all amounts necessary to cure any arrearages that the creditor contends remain unpaid. . . . 'The creditor must file the statement as a supplement to the creditor's proof of claim. The supplement is not accorded the evidentiary weight of prima facie proof that the original proof of claim is afforded pursuant to Rule 3001(f).' . . . [Creditor] filed its original claim on March 17, 2008[,] . . . which disclosed that there were no pre-petition arrears. . . . Debtors' plan did not include any amounts as secured arrears to be paid during the life of the plan. . . . Debtors filed a motion for post confirmation modification of Chapter 13 plan in which they state that the reason for the modification of the plan is to include the post-petition mortgage arrears . . . . On October 25, 2011, Debtors' amended plan was confirmed. . . . On July 17, 2012, [creditor] filed amended proof of claim . . . which listed the amount of $5,093.56 in arrears . . . as of the petition date . . . . However, the arrears were paid in accordance with the post confirmation modified plan . . . . On February 26, 2013, the Trustee filed the Notice of Final Cure Payment pursuant to Fed. R. Bankr.P. 3002.1(f) . . . . [Creditor] did not file and serve a Statement as a supplement to its proof of claim. . . . Secured creditor . . . did not object to the Notice of Final Cure Payment that was filed by the Trustee in which it was disclosed that the claim allowed was for $3,396.28 and the amount paid was for $3,396.28. Fed. R. Bankr.P. 3002.1 was designed to prevent this particular type of problem in which Chapter 13 debtors would complete their plan payments and then face undisclosed mortgage arrearages. Fed. R. Bankr. P. 3002.1 provides an opportunity for the debtor to contest these mortgage arrearages during the Chapter 13 case.").
In re Lighty, 513 B.R. 489 (Bankr. D.S.C. July 21, 2014) (Duncan) (Attorney fees of $425 allowed for residential mortgagee's filing of proof of claim, plan review and monitoring case. Bankruptcy Rule 3002.1(e) and § 1322(e) allow postpetition fees when provided for by underlying agreement, reasonable in amount and plan proposes to cure prepetition arrearage.).
In re Demers, 511 B.R. 233 (Bankr. D.R.I. June 5, 2014) (Finkle) (Disputed charges of $1,979.40 related to prepetition foreclosure disallowed when notice of default failed to inform debtor of right to bring an action challenging default.).
Rutledge v. Wells Fargo Bank, N.A. (In re Rutledge), 510 B.R. 491 (Bankr. M.D.N.C. May 16, 2014) (James) (Challenge to mortgage claim would go forward on counts of breach of contract and breach of duty of good faith and fair dealing regarding failure to apply insurance proceeds to arrearage and lack of reasonable care in servicing of loan; claims for breach of fiduciary duty, fraud, negligence and unfair and deceptive trade practices were dismissed.).
In re Smith, No. 12-12240, 2014 WL 2024905, at *1 (Bankr. D. Kan. May 15, 2014) (Nugent) (Mortgage lender bound by terms of modification offer when debtors satisfied conditions and accepted loan modification offer. "[T]he offer and acceptance form an enforceable contract. The mortgage creditor cannot thereafter revoke its offer or 'reject' the borrowers' acceptance. If the mortgage creditor's offer is not conditioned upon its compliance with undisclosed duties to unidentified third parties, its duties to those third parties cannot excuse its performance of the obligations it undertook to perform, once its offer has been accepted . . . . [Debtors] did everything they were supposed to, but [lender] refused to execute the modification agreement it had offered them because it concluded that its investor, Federal National Mortgage Association (FNMA), would not permit the modification because it had recourse to its assignor and could require the assignor to repay the defaulted obligation. As [lender] was bound by the terms of its modification offer, its claim in this case must be allowed under the terms of the loan as modified.").
In re Enck, No. 6:12-bk-16486-CCJ, 2014 WL 12668105, at *1 (Bankr. M.D. Fla. May 6, 2014) (Jackson) (Debtor’s motion to compel Wells Fargo to conduct mortgage modification mediation in good faith is denied based on evidence that Wells Fargo considered mortgage modification but refused. “The debtor admits that Wells Fargo reviewed the debtor’s mortgage, and considered at least one modification . . . . Good faith does not require Wells Fargo to set aside its own business judgment and accept the debtor’s determination that an alternative modification option ‘would result in a WIN/WIN’.”).
Smith v. Vista Hill Partners, LLC (In re Smith), 510 B.R. 164 (Bankr. S.D. Ohio May 5, 2014) (Hoffman) (Prepetition foreclosure that did not end in sale was not preclusive and did not extinguish junior lien.).
In re Koebel, No. 2:12-bk-12597-WB, 2014 WL 1654342 (Bankr. C.D. Cal. Apr. 25, 2014) (Brand) (Debtor barred from relitigating loan modification agreement in context of objection to claim when prior state court judgment dismissed debtor's claims against mortgage holder.).
Ogden v. PNC Bank, N.A. (In re Ogden), 532 B.R. 329, 331-34 (Bankr. D. Colo. Apr. 3, 2014) (Brown) (Convoluted mortgage accounting by bank—including two sets of books—did not violate automatic stay, confirmation order or Bankruptcy Rule 3002.1 when witness testified that bank would "true up" the accounting and eliminate all accrued charges if debtor completed payments under the plan. In a separate action under RESPA, bank settled with debtor, reducing mortgage balance and paying debtor $5,000. During Chapter 13 case, debtor sought evidence that the bank had actually carried out the settlement. Discovery revealed additional postpetition fees and corporate advances that did not appear on statements from the bank. "[The Bank's witness] attempted to eliminate the confusion by explaining that the Bank keeps essentially two sets of books . . . one for bankruptcy purposes and one that accounts for the loan as if she had not filed for bankruptcy. . . . The reason the Bank uses two forms of accounting is because, unless the Debtor completes her plan, she will remain subject to all of the terms of her promissory note and deed of trust, including the accrual of late fees and the like. . . . The Debtor asserts that the Bank's accounting practices violate the automatic stay, her confirmed plan, and [Bankruptcy Rule 3002.1] by applying her postpetition payments to the oldest contractually due payment, contrary to her plan, as well as by tacking on numerous postpetition fees and charges. She asserts that this method of accounting results in her being charged more interest and receiving less principal reduction than she would otherwise realize. . . . The problem is that the Bankruptcy Code and [Bankruptcy Rule 3002.1] provide only limited oversight by the bankruptcy court during the term of the plan. . . . In this case, the Bank has filed only three notices in compliance with [Bankruptcy Rule 3002.1] . . . . It has not filed any notices to reflect the additional $5,500 in postpetition charges and fees set forth in the August 15, 2013 reinstatement quote. . . . [Bankruptcy Rule 3002.1] prescribes a 180-day deadline for filing a notice that begins when each postpetition charge or fee is incurred. . . . [I]t would be logical to conclude that the fees and charges will no longer be collectable against the Debtor or her home if the Bank fails to comply with this provision. Subsection (i), however, sets forth the consequences for failure to provide notices. . . . Whether 'other appropriate relief' includes the ability to preclude the mortgage holder from later collecting the fees and charges is an open question. . . . [I]t makes no mention of whether the notice requirements of subsections (b) and (c) have a continuing effect in the event that a debtor later obtains a hardship discharge, modifies her plan, or converts to a chapter 7 proceeding. . . . The Court must accept [the bank's] testimony on its face that, if the Debtor completes her plan payments, the Bank will 'true up' her loan at the end of the plan. If it fails to do so, this Court will stand ready, willing, and able to enforce § 524(i)'s sanctions. The Debtor may preempt subsequent litigation by invoking [Bankruptcy Rule 3002.1's] 'notice of final cure payment' provisions under subsection (f) to obtain a court order declaring the loan to be current. The Court acknowledges that this may be an imperfect solution. If the loan is deemed 'current,' but the Debtor has not received as much principal reduction as she should have realized, then this may be of little comfort to the Debtor. A better solution may lie outside of the bankruptcy world. . . . RESPA contains procedures for requesting information from a loan servicer, sets deadlines for the servicer's response, and imposes sanctions against a servicer who either fails to provide a timely response or to correct the borrower's account.").
Randolph v. HSBC Bank USA (In re Randolph), No. 13-3078, 2014 WL 1304629 (Bankr. N.D. Ohio Mar. 31, 2014) (Whipple) (Foreclosure judgment precluded fraud and standing claims against mortgagee; Rooker-Feldman doctrine did not apply because source of injury was not the state court judgment but mortgagee's alleged wrongful acts.).
Carney v. Citimortgage, Inc. (In re Carney), No. 13-01019, 2014 WL 1203242, at *3 (Bankr. S.D. Ga. Mar. 24, 2014) (Barrett) (Adversary proceeding for fraud, consumer protection violations, and unauthorized practice of law against law firm that rendered prepetition foreclosure modification services to debtors was noncore, related-to proceeding, not implicating 28 U.S.C. § 157(b)(2)(C), in which bankruptcy court could render report and recommendation to the district court under 28 U.S.C. § 157(c)(1). Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), does not require dismissal. "In Stern, the Supreme Court did not hold that the bankruptcy court lacked constitutional authority to enter final judgment on all state law claims. . . . Specifically, the Supreme Court held that the bankruptcy court 'lacked the constitutional authority to enter a final judgment on a state law counterclaim that is not resolved in the process of ruling on a creditor's proof of claim,' notwithstanding that the proceeding was core under 28 U.S.C. § 157(b)(2)(C). . . . Unlike Stern, the claims against the [ ] Firm are non-core and do not implicate 28 U.S.C. § 157(b)(2)(C). Thus, Stern does not prevent the bankruptcy court from submitting a report and recommendation to the District Court.").
In re Greco, No. 12-51497, 2014 WL 1168507 (Bankr. M.D.N.C. Mar. 21, 2014) (Aron) (Objection to deficiency claim overruled when evidence did not show that bank had bid substantially less than property's value at foreclosure sale.).
In re Morales, 506 B.R. 213, 221 (Bankr. S.D.N.Y. Mar. 10, 2014) (Morris) (HAMP trial plan will not support reclassification or alteration of mortgage until conditions for permanent modification are satisfied. Order approving loan modification would require mortgagee to deliver permanent loan modification within 30 days of completion of trial and to return fully executed agreement within 21 days of receipt of agreement signed by debtors. "[D]ebtors are often forced to wait extensive periods of time to receive permanent modifications once trial plans are complete. This delays administration of bankruptcy cases and may prejudice other creditors. The Court will enter the language in the best interests of the estate.").
Laudani v. Wells Fargo N.A. (In re Laudani), 506 B.R. 19 (Bankr. D. Mass. Mar. 3, 2014) (Feeney) (Broad release in loan modification agreement did not preclude adversary proceeding based on subsequent violations of modification agreement and of other federal laws; violation of discharge injunction was not separate cause of action but was properly remedied by motion for contempt.).
In re Brown, No. 8:13-bk-09074-CPM, 2014 WL 983532, at *1-*2 (Bankr. M.D. Fla. Feb. 11, 2014) (McEwen) (Mortgage lien was extinguished under state law when lender failed to commence action within five years following acceleration. Under Florida law, "a mortgage shall terminate upon the expiration of 5 years from the date of maturity. . . . Where a lender has accelerated a loan and made the borrower responsible for the full balance of the loan, the statute of limitations begins to run at the time when the mortgagee exercises the right to accelerate. . . . Examples of acceleration are a creditor's sending written notice to the debtor, making an oral demand, and alleging acceleration in a pleading filed in a suit on the debt. . . . [Debtor's] mortgage . . . was extinguished . . . irrespective of discharge or confirmation of this bankruptcy case.").
In re Moore, No. A13-00294-GS, 2014 WL 176774, at *3 (Bankr. D. Alaska Jan. 15, 2014) (Spraker) (Absence of legal description of property in deed of trust not necessarily fatal under Alaska law. "'[W]here possible, deeds will be made operative and the intentions of the parties given effect. A deed is not void for uncertainty of description if the quantity, identity or boundaries of the property can be determined by reference to extrinsic evidence.'").
In re Garcia, No. 13-26632-RAM, 2014 WL 3970175 (Bankr. S.D. Fla. Jan. 6, 2014) (Mark) (Under district's Loss Mitigation Mediation Program debtor must commit 31% of gross monthly income as good-faith adequate protection payment to mortgage lender; plan that proposed 31% over life of plan and not in equal installments beginning in the first month did not provide adequate protection and must be amended.).
In re Choudhuri, No. 13-30873DM, 2013 WL 6818482, at *2 (Bankr. N.D. Cal. Dec. 25, 2013) (Montali) (Assignment of deed of trust separately from note did not render either unenforceable. "[U]nder California law, a deed of trust does not have an identity separate and apart from the note it secures. Therefore, if one party receives the note and another receives the deed of trust, the holder of the note prevails 'regardless of the order in which the interests were transferred.'").
Grandberry v. Bank of Am. NA (In re Grandberry), No. 112-90611, 2013 WL 6979402 (Bankr. M.D. Tenn. Dec. 16, 2013) (Harrison) (Lack of supporting documentation attached to proof of claim filed by debtor on creditor's behalf forfeits presumption of validity; challenge to claim based on lack of standing, inadequate documentation and inaccurate accounting survives motion to dismiss.).
Sandri v. Capital One, N.A. (In re Sandri), 501 B.R. 369 (Bankr. N.D. Cal. Nov. 5, 2013) (Montali) (Applying Nordeen v. Bank of America, N.A. (In re Nordeen), 495 B.R. 468 (B.A.P. 9th Cir. Aug. 9, 2013) (Dunn, Kirscher, Collins), and rejecting contrary California state court precedent, mortgage challenge based on securitization and assignments of deed of trust and note is rejected. Robo-signing is not ground to challenge notice of default.).
Gould v. US Bank Nat'l Ass'n (In re Gould), No. 11-1017, 2013 WL 5786955, at *3 (Bankr. D. Vt. Oct. 28, 2013) (Brown) (Challenge to proof of claim allowed to proceed when mortgagee unable to establish that it had possession of note and that note was payable to it or to bearer on petition date. "'To enforce a promissory note or mortgage under . . . [Vermont law], . . . a person must be in possession of the instrument at the time that the enforcement action is filed and the instrument must be made payable to the person or to the order of the person.' . . . 'The seminal date for analysis and allowance of a proof of claim, including the question of standing, is the date the bankruptcy case was commenced.'" That servicer had possession of note prior to filing proof of claim does not demonstrate possession on petition date. Undated indorsements and allonge dated postpetition purporting to relate back to date prior to bankruptcy filing do not establish standing as of petition date.).
Jones v. HSBC Mortg. Servs. Inc. (In re Jones), No. 13-00015-BGC, 2013 WL 5442768 (Bankr. N.D. Ala. Sept. 30, 2013) (Cohen) (Allegations of misapplication of payments that ended in foreclosure did not state a claim for intentional infliction of emotional distress under Alabama law.).
Anchrum v. Wells Fargo Bank, NA (In re Anchrum), No. 12-00128-BGC, 2013 WL 5352631 (Bankr. N.D. Ala. Sept. 23, 2013) (Cohen) (Wrongful foreclosure claim failed under Alabama law absent allegation that mortgagee used power of sale for purpose other than to secure debt owed by plaintiff. Breach of contract action survived when mortgagee could not establish compliance with notice provision in mortgage.).
In re Danastorg, 499 B.R. 8, 17-20 (Bankr. D. Mass. Sept. 16, 2013) (Feeney) (U.S. Bank established standing and colorable claim for relief from stay based on provisions of mortgage. "[M]ortgage contains an express grant of the mortgage to MERS, i.e. 'Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS with power of sale, the following described property. . . .'). Additionally, the mortgage provides: 'Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including but not limited to, the right to foreclose and sell the Property . . .'). . . . [T]his unambiguous grant of a mortgage provided MERS with the authority to execute the assignment . . . . In the context of a motion for relief from stay, the requirement that foreclosing mortgagees establish the validity of assignments by showing the lender's direction to MERS would undermine the summary nature of lift stay proceedings.").
Scafuro v. PennyMac Loan Servs., LLC (In re Scafuro), No. 13-1006, 2013 WL 4776740, at *2-*3 (Bankr. D. Vt. Sept. 4, 2013) (Brown) ("To demonstrate standing to file a [proof of claim] relating to a secured claim in real property, a claimant must show that it held the note on the day that the debtors filed their petition. . . . An entity may be the holder of a note if it is in possession of a note made payable to it or endorsed in blank. . . . Although [creditors' proof of claim] did not initially contain an affidavit of possession, . . . Defendants permissibly amended their POC to attach one. . . . [T]hey have set forth a prima facie claim to enforce the note[.]").
Lay v. Bank of Am. (In re Lay), No. 13-02008, 2013 WL 5550362, at *3-*4 (Bankr. S.D. Tex. Aug. 27, 2013) (Schmidt) (MERS, as deed of trust beneficiary and nominee of originating lender, had power to transfer interest in deed of trust; mortgage servicer could enforce deed of trust regardless of ownership of note. Under Texas law "'split-the-note,' or bifurcation, theory has no traction . . . . A party who otherwise qualifies as a mortgagee or mortgage servicer is not required to own or hold the Note in order to enforce the Deed of Trust . . . . [Debtor's] argument appears to conflate the enforcement of the Note with enforcement of the Deed of Trust. These are, however, two separate and distinct rights governed by two separate and distinct statutes.").
Knudsen v. Mortgage Elec. Registration Sys., Inc. (In re Knudsen), No. 13-1005, 2013 WL 3306413 (Bankr. D. Vt. July 1, 2013) (unpublished) (Brown) (Complaint alleging defendants lacked standing to file proof of claim survived motion to dismiss.).
In re Foster, 500 B.R. 197 (Bankr. N.D. Ga. June 24, 2013) (Diehl) (Debtor cannot challenge mortgage assignment when debtor is neither party to nor beneficiary of assignment.).
Saldivar v. JPMorgan Chase Bank, N.A. (In re Saldivar), No. 12-01010, 2013 WL 2452699 (Bankr. S.D. Tex. June 5, 2013) (Isgur) (Applying New York law, assignment of note was void ab initio because transfer occurred after trust had closed. Subsequent ratification issue was reserved for trial.).
In re Assasepa, No. 12-51222, 2013 WL 2154789 (Bankr. M.D.N.C. May 17, 2013) (Aron) (Motion to recuse bankruptcy judge failed. Judge had no financial interest in defendant JP Morgan Chase Bank nor other basis for recusal or disqualification.).
Baker v. Bank of N.Y. Mellon (In re Baker), No. 11-1131, 2013 WL 2018407 (Bankr. D.N.M. May 14, 2013) (Thuma) (Preclusion did not apply to state court default judgment entered without hearing, seven days after Chase had filed summary judgment motion in state court.).
In re Russell, No. 12-60190, 2013 WL 1868346 (Bankr. W.D. Mo. May 3, 2013) (Federman) (Applying Missouri common law standard to determine post-foreclosure deficiency, debtor was required to pay difference between debt and foreclosure sale price, subject to opportunity to show sale price was so inadequate as to raise fraud inference. Missouri employed strict "shock the conscience" standard for inadequacy. Debtor's objection to deficiency claim substantially overruled.).
In re Boyd, No. 12-80400-G3-13, 2013 WL 1844076 (Bankr. S.D. Tex. May 1, 2013) (Paul) (Fifty dollar fee to file new Bankruptcy Rule 3002.1 notice is disallowed; $425 fee for filing proof of claim was reasonable when included services to review the case, review lien documents and prepare strategy for objecting to confirmation. Four hundred dollar additional fee for objecting to confirmation is reduced to $200 based on duplication with proof of claim services.).
Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), No. 08-01004, 2013 WL 1748800 (Bankr. S.D. Tex. Apr. 23, 2013) (Isgur) (Inspection fees are governed by Bankruptcy Rule 2016—Countrywide must seek approval before reimbursement from debtors. Late fees are contract obligations, not reimbursable expenses, and are not governed by Rule 2016. Legal fees charged without court approval violated confirmation order. Permanent injunction issued to prevent future violations of Bankruptcy Rule 2016.).
In re Yarbrough, 490 B.R. 328 (Bankr. S.D. Ohio Apr. 11, 2013) (Caldwell) (Bankruptcy Court requires U.S. Bank to report all details of actions taken on HAMP loan modification, including whether it had recommended approval and basis for any denial.).
Tarantola v. Deutsche Bank Nat'l Trust Co. (In re Tarantola), 491 B.R. 111 (Bankr. D. Ariz. Apr. 11, 2013) (Hollowell) (Trustee of securitized mortgage pool had standing, as holder, to enforce note and deed of trust, but loan servicer did not establish standing to file proof of claim. Servicer must show agency relationship.).
Kreitzer v. Household Realty Corp. (In re Kreitzer), 489 B.R. 698 (Bankr. S.D. Ohio Apr. 4, 2013) (Humphrey) (Prebankruptcy foreclosure judgment preclusively determined standing of mortgagee to file proof of claim; but debtors were not prevented from contesting itemized charges as unreasonable under Ohio law. Alleged defects in assignment of mortgage did not destroy perfection or permit avoidance in strong-arm proceeding.).
In re Shelby, No. 12-11532, 2013 WL 1344494 (Bankr. E.D. La. Apr. 3, 2013) (Magner) (CitiMortgage improperly required force-placed insurance when debtors had insurance throughout loan, increasing escrow amount substantially. Debtors were credited with force-placed premiums and costs associated with policy. Escrow balance was adjusted and debtors may seek sanctions within 120 days.).
Mortgage Elec. Registration Sys., Inc. v. Hughes (In re Hughes), No. 12-00232, 2013 WL 1327119 (Bankr. D. Md. Mar. 29, 2013) (Rice) (Under Maryland law, certificate of satisfaction recorded by mistake does not release mortgage. Certificate of satisfaction of mortgage had been mistakenly executed and recorded, but Mortgage Electronic Registration System and Chicago Title Insurance Company remained entitled to enforce deed of trust.).
In re Taylor, No. 12-11463-NPO, 2013 WL 1276507 (Bankr. N.D. Miss. Mar. 27, 2013) (Olack) (Creditor failed to prove claim for prepetition arrearage for principal and interest, late charges and taxes; arrearage for insurance was allowed.).
Schafer v. Ocwen Loan Servicing LLC (In re Schafer), No. 12-00041, 2013 WL 1197612 (Bankr. D. Mont. Mar. 25, 2013) (Kirscher) (Complaint sufficiently alleged that debtor had been charged more than Ocwen was entitled to under confirmed plan.).
Jenkins v. JP Morgan Chase Bank, N.A. (In re Jenkins), 488 B.R. 601 (Bankr. E.D. Tenn. Mar. 12, 2013) (Rucker) (Although mortgagee was under no contractual obligation to modify mortgage based on trial payment plan, debtor stated plausible claim that mortgagee breached obligation to timely consider application for modification and not to start foreclosure while modification application was being considered.).
Nevarez v. Residential Credit Solutions, Inc. (In re Nevarez), 488 B.R. 332 (Bankr. E.D. Tex. Mar. 6, 2013) (Rhoades) (Creditor had authority under assigned note and deed of trust to conduct prepetition foreclosure. Debtor had enjoyed years of free housing while pursuing meritless litigation.).
Hofman v. HSBC Bank USA, NA (In re Hofman), 488 B.R. 157 (Bankr. D. Mont. Feb. 25, 2013) (Kirscher) (HSBC had standing to file proof of claim as party entitled to enforce deed of trust; debtors did not have standing to assert breach of trust because debtors were not parties to or third-party beneficiaries of pooling and servicing agreement.).
Rinaldi v. HSBC Bank USA, N.A. (In re Rinaldi), No. 12-2412, 2013 WL 655514 (Bankr. E.D. Wis. Feb. 22, 2013) (Kelley) (Debtors' attack on validity of note and deed of trust failed because note was enforceable under Wisconsin law.), aff'd, Nos. 13-CV-336-JPS, 13-CV-643-JPS, 2013 WL 5876233 (E.D. Wis. Oct. 31, 2013) (Stadtmueller).).
Connelly v. U.S. Bank Nat'l Ass'n (In re Connelly), 487 B.R. 230 (Bankr. D. Ariz. Feb. 6, 2013) (Hollowell) (As holder of note and beneficiary of deed of trust, bank was entitled to enforce debt and substitute trustee was entitled to foreclosure.).
Finance Ctr. Fed. Credit Union v. Callahan (In re Callahan), No. 12-50194, 2013 WL 169275 (Bankr. S.D. Ind. Jan. 16, 2013) (Coachys) (Under Indiana law, renewal of judgment did not relate back; judgment lien was inferior to mortgage recorded after original judgment.).
Brown v. JP Morgan Chase Bank, NA (In re Brown), No. 6:12-ap-00174-KSJ, 2013 WL 85131 (Bankr. M.D. Fla. Jan. 8, 2013) (Jennemann) (Abstention appropriate in Chapter 13 case filed after three years of state court foreclosure litigation.), aff'd, No. 5:13-CV-191, 2013 WL 6923070 (M.D. Fla. Nov. 15, 2013) (Conway), aff'd, No. 13-15422, 2014 WL 3586261 (11th Cir. July 22, 2014) (unpublished) (Pryor, Martin, Cox).).
Brannan v. Wells Fargo Home Mortg., Inc. (In re Brannan), 485 B.R. 443 (Bankr. S.D. Ala. Jan. 8, 2013) (Mahoney) (Injunctive class action certification granted to address injury to court system caused by false affidavits in stay relief motions.).
Patlan v. U.S. Bank, N.A. (In re Patlan), No. 12-1129, 2013 WL 80149 (Bankr. N.D. Cal. Jan. 6, 2013) (Jaroslovsky) (Although nephew forged debtor's signature to some loan documents, bank had valid lien on nephew's separate one-third interest in property and equitable lien to extent debtor benefitted from satisfaction of prior lien.).
Ziegler v. Deutsche Bank Nat'l Trust Co. (In re Ziegler), No. 12-5041, 2013 WL 66078 (Bankr. E.D. Ky. Jan. 4, 2013) (Wise) (Alleged mortgage modification was unenforceable under Kentucky statute of frauds.).
Lopez v. Mortgage Elec. Registration Sys., Inc. (In re Lopez), 486 B.R. 221 (Bankr. D. Mass. Jan. 3, 2013) (Boroff) (Debtors had standing to challenge lender's right to foreclose under Massachusetts law. Defendants were entitled to summary judgment on breach of contract, TILA, negligent lending, predatory lending and emotional distress claims.).
Fischer v. Bank of Am., N.A. (In re Fischer), 483 B.R. 877 (Bankr. E.D. Wis. Dec. 27, 2012) (Kelley) (State court foreclosure judgment was entitled to preclusive effect.).
Kapla v. Federal Nat'l Mortg. Ass'n, Inc. (In re Kapla), 485 B.R. 136 (Bankr. E.D. Mich. Dec. 14, 2012) (Shefferly) (In case converted to Chapter 7, debtor's attack on prepetition foreclosure judgment was barred by Rooker-Feldman doctrine.).
Hutchins v. JPMorgan Chase Bank, Nat'l Ass'n (In re Hutchins), No. 12-1564 HRT, 2012 WL 5247730 (Bankr. D. Colo. Oct. 24, 2012) (Tallman) (Abstention appropriate with respect to state-law damage claims that JPMorgan Chase was not proper party to enforce note and deed of trust.).
In re Stanley, 514 B.R. 27 (Bankr. D. Nev. Oct. 12, 2012) (Markell) (Where creditor or its agent holds note and all beneficial interests under deed of trust, creditor has standing as a secured creditor. Any prior split of note and deed of trust, which would preclude nonjudicial foreclosure under Nevada law, is remedied when note and deed of trust are reunified.).
Hollingsworth v. Option One Mortg. Corp. (In re Hollingsworth), No. 08-00244-BGC, 2012 WL 4465593 (Bankr. N.D. Ala. Sept. 25, 2012) (Cohen) (Debtors failed to establish that lender violated automatic stay or filed inappropriate proof of claim for postpetition fees accrued during prior case.).
Smith v. Wells Fargo Fin. Ala., Inc. (In re Smith), No. 11-00226-TOM, 2012 WL 4090736 (Bankr. N.D. Ala. Sept. 12, 2012) (Mitchell) (Complaint alleging forgery of debtor's signature to mortgage was dismissed when debtor's testimony lacked credibility and debtor lacked statutory authority to pursue avoidance.).
Borromeo v. Household Fin. Corp. III (In re Borromeo), No. 10-8057-TJM, 2012 WL 3780540 (Bankr. D. Neb. Aug. 31, 2012) (Mahoney) (In discovery dispute, deposition would be taken in Omaha, where both parties had counsel. Scope of discovery was not restricted.).
Robinson v. Branch Banking & Trust Co. (In re Robinson), No. 12-5032, 2012 WL 3638007 (Bankr. W.D.N.C. Aug. 22, 2012) (Beyer) (Permissive abstention and remand of removed mortgage litigation were appropriate when state law issues predominated.).
Anderson v. Citimortgage, Inc. (In re Onebo), No. 12-5068, 2012 WL 3667973 (Bankr. N.D. Ga. Aug. 17, 2012) (Murphy) (Final judgment in prior district court action precluded debtor's litigation of same claims in adversary proceeding.).
Olaleye v. BAC Home Loans Servicing LP (In re Olaleye), No. 11-5697, 2012 WL 4050000 (Bankr. N.D. Ga. Aug. 17, 2012) (Bonapfel) (Bankruptcy court abstained from complaint contesting validity of prepetition foreclosure; debtor did not schedule claims.).
Verity v. Wells Fargo Bank, N.A. (In re Verity), No. 10-02373 (DHS), 2012 WL 3561669 (Bankr. D.N.J. Aug. 16, 2012) (unpublished) (Steckroth) (Rooker-Feldman and Younger doctrines prevented unraveling of prebankruptcy state court foreclosure.).
Huskey v. Citimortgage, Inc. (In re Huskey), 479 B.R. 827 (Bankr. E.D. Ark. Aug. 14, 2012) (Evans) (Debtors lacked standing to use strong-arm powers to avoid assignee's lien, but factual issues precluded summary judgment with respect to claim of wrong county in property description.).
Allen v. Chase Home Mortg. Grp. (In re Allen), No. 12-01062, 2012 WL 3201837 (Bankr. E.D. Va. Aug. 2, 2012) (unpublished) (Kenney) (Chase had possession of original note, entitling it to dismissal of adversary proceeding contending it was not in fact note holder and therefore unable to enforce obligation.).
Akers v. Beal Bank (In re Akers), No. 12-10020, 2012 WL 3133924, at *3 (Bankr. D.D.C. Aug. 1, 2012) (unpublished) (Teel) (Bankruptcy court lacked "related to" jurisdiction over adversary proceeding to determine amount of unpaid mortgage claim after completion of plan payments. Completed plan was not subject to modification, "and determining whether the unpaid balance of Beal Bank's claim should be allowed would serve no purpose in [debtor's] bankruptcy case.").
Bruce v. Stewart Title Guar. Co. (In re Bruce), No. 12-1079, 2012 WL 3133932 (Bankr. D. Mass. Aug. 1, 2012) (Feeney) (Conclusory allegation that Stewart Title knew or should have known of former husband's deceit was unsupported by factual allegations. Three-year statute of limitations barred claims under Massachusetts law, and counts alleging rescission and reaffirmation were remedies, not causes of action.).
Lima v. Conlon (In re Lima), No. 11-1010, 2012 WL 3070569, at *1-*7 (Bankr. D.R.I. July 30, 2012) (Votolato) (In foreclosure prevention scheme, defendants engaged in "clandestine pattern of equity skimming by repeatedly refinancing [debtor's] property, and virtually stealing the proceeds[,] . . . [with] blatant and unauthorized burdening of the property with additional mortgage debt unjustly enrich[ing] only them[.]" Monetary judgment was in amount extracted from equity.).
Rinehart v. Federal Nat'l Mortg. Assocs. (In re Rinehart), No. 11-08087-JDP, 2012 WL 3018291 (Bankr. D. Idaho July 24, 2012) (Pappas) (Under Idaho law, assignment of mortgage must be recorded prior to initiating non-judicial foreclosure. Unrecorded assignee was unable to foreclose, but original deed of trust remained valid.).
Mitchell v. Wells Fargo Bank, N.A. (In re Mitchell), 476 B.R. 33 (Bankr. D. Mass. July 20, 2012) (Hoffman) (Summary judgment in favor of defendant was recommended on state law counts of estoppel, power to foreclose, and unfair or deceptive practices. Non-core proceeding, based on state law allegations, required proposed findings and conclusions, when defendant did not consent to final judgment.).
Tolliver v. U.S. Bank (In re Tolliver), No. 09-2076, 2012 WL 2952239 (Bankr. E.D. Ky. July 19, 2012) (Wise) (Ocwen mishandled loan—failing to apply payments correctly, assessing and collecting unsupported interest on arrearage, as well as late charges, fees and costs in disregard of note and mortgage terms. Overcharging, though less than $4,000, was grossly reckless and fraudulent under Kentucky law, justifying $25,000 in punitive damages.).
Stober v. Mortgage Elec. Registration Sys. (In re Stober), No. 11-1120, 2012 WL 2921051 (Bankr. D. Mass. July 17, 2012) (Bailey) (Complaint alleging invalid prepetition foreclosure failed to state sufficient facts to support foreclosure defect.).
Pulaski v. Dakota Fin., LLC (In re Pulaski), 475 B.R. 681, 688 (Bankr. W.D. Wis. July 13, 2012) (Utschig) (Distinguishing Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), although mortgage litigation involved some state law issues, court had jurisdiction to enter final order. Debtors were not seeking monetary relief, only to invalidate mortgage as part of claims process. "[W]hen the debtor's claim and the validity of the creditor's claim are sufficiently tied together, the bankruptcy court is authorized under Stern to enter a final judgment.").
Lacey v. BAC Home Loans Servicing, LP (In re Lacey), 480 B.R. 13 (Bankr. D. Mass. July 12, 2012) (Feeney) (Plaintiff entitled to declaration that foreclosure sale conducted by Bank of New York, as trustee, was void, but since plaintiff did not name Bank of New York as defendant, plaintiff must file amended complaint within 14 days. Recommended summary judgment in favor of defendants included state law deceit, misrepresentation, negligence, accounting and infliction of emotional distress.), upon further hearing of No. 10-1249, 2011 WL 5117767 (Bankr. D. Mass. Oct. 27, 2011) (Feeney) (Adversary proceeding alleging state and federal causes of action against mortgagee and mortgage servicer was within "related to" jurisdiction; bankruptcy court would submit proposed findings of fact and conclusions of law to the district court. Defendants stated no ground for abstention, and motion to withdraw the reference was matter for district court. Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), did not require different outcome.).
In re Wittman, No. 10-22811, 2012 WL 2742099 (Bankr. E.D. Wis. July 9, 2012) (McGarity) (Trustee was hypothetical bona fide purchaser able to avoid unperfected lien of mortgage containing incorrect legal description.).
Brown v. American Home Mortg. Servicing, Inc. (In re Brown), No. 10-01210-NPO, 2012 WL 3150320 (Bankr. N.D. Miss. July 6, 2012) (Olack) (Section 105(a) could be used to address § 506(b) violations, but court declined creation of private right of action for filing false proof of claim. Loan servicer was real party in interest, with standing to file proof of claim on behalf of mortgagee. Proof of claim had attached invoices for legal services, some incurred during prior bankruptcy case in which order had been entered finding mortgage current. Issues remained whether creditor was in contempt of that order.).
Jefferson v. Community Bank (In re Jefferson), 477 B.R. 645 (Bankr. S.D. Miss. June 21, 2012) (Samson) (Dismissal of adversary proceeding in prior bankruptcy case was without prejudice to debtors' action against bank in current case when prior dismissal was based on dismissal of previous bankruptcy case, not on merits.).
Small v. Seterus, Inc. (In re Small), No. 11-00169, 2012 WL 2132386 (Bankr. S.D. Ala. June 12, 2012) (Mahoney) (Wrongful foreclosure, negligence, wantonness and defamation claims against mortgage company were dismissed; breach of contract, related to loan modification, survived motion to dismiss.).
Alvarez v. RG Mortg. Corp. (In re Alvarez), No. 10-00119, 2012 WL 1995784 (Bankr. D.P.R. June 4, 2012) (Tester) (Evidentiary hearing required to determine whether bank had obligation to inform debtors that filing bankruptcy during loan modification probation period would result in denial of modification.).
Ricchi v. American Home Mortg. Servicing, Inc. (In re Ricchi), 470 B.R. 715 (Bankr. D.N.J. May 17, 2012) (Wizmur) (In priority dispute, mortgage serviced by American Home Mortgage Servicing, Inc. was equitably subrogated to mortgages paid off from refinancing proceeds, but bankruptcy court lacked subject matter jurisdiction over title insurance dispute.).
Bank of Am., N.A. v. DeVaughn (In re DeVaughn), No. 12-03005-DHW, 2012 WL 1906499 (Bankr. M.D. Ala. May 2, 2012) (Williams) (Judgment creditor's rights in realty are not protected by Alabama statute on reformation of deeds and mortgages.), report and recommendation adopted by No. 2:12CV445-MHT, 2012 WL 1906303 (M.D. Ala. May 25, 2012) (Thompson).).
Hinson v. Countrywide Home Loans, Inc. (In re Hinson), No. 11-00328-8-JRL, 2012 WL 1354807 (Bankr. E.D.N.C. Apr. 17, 2012) (Leonard) (Rooker-Feldman doctrine precluded relitigation of BOA's standing to enforce mortgage after prepetition foreclosure but did not prevent litigation of deed reformation when description on deed of trust may have erroneously included entire acreage rather than two acres agreed upon. Debtors had burden of showing material agreement was incorrectly incorporated. Although no private right of action exists under HAMP, causes of action survived under North Carolina's Unfair or Deceptive Practices Act and Secure and Fair Enforcement Mortgage Licensing Act.).
Oliver v. CitiMortgage, Inc. (In re Oliver), No. 11-07038, 2012 WL 1252955 (Bankr. D. Kan. Apr. 13, 2012) (Karlin) (Complaint survived summary judgment with respect to whether mortgagee violated confirmed plan that prohibited mortgage lender from using suspense accounts or seeking fees and costs without prior court approval. Summary judgment was granted for mortgagee on tort of outrage; under Kansas law, tort of outrage requires extreme and outrageous conduct.).
Vazquez v. Reo Props. Corp. (In re Vazquez), 467 B.R. 550 (Bankr. D.P.R. Apr. 13, 2012) (Lamoutte) (Court lacked subject matter jurisdiction over complaint attacking prepetition foreclosure judgment; Rooker-Feldman doctrine prevented review.).
Bailey v. Wells Fargo Bank, NA (In re Bailey), 468 B.R. 464 (Bankr. D. Mass. Apr. 10, 2012) (Boroff) (Although notice of foreclosure sale was adequate under Massachusetts law, summary judgment not appropriate because debtor had standing to assert that assignor did not hold mortgage at time of assignment.).
McLoyd v. Bank of Am., N.A. (In re McLoyd), No. 11-1125, 2012 WL 1155704 (Bankr. N.D. Ohio Apr. 5, 2012) (Morgenstern-Clarren) (Admitting fundamental misunderstanding about discovery request, bank was directed to file amended response to interrogatories.).
Newcomer v. Litton Loan Servicing, L.P. (In re Newcomer), No. 07-479, 2012 WL 1120671 (Bankr. D. Md. Apr. 2, 2012) (Catliota) (Litton Loan Servicing was not responsible for debtor's attorney fees resulting from stay violations by predecessor servicer.).
Kain v. Bank of N.Y. Mellon (In re Kain), No. 10-80047-HB, 2012 WL 1098465 (Bankr. D.S.C. Mar. 30, 2012) (Burris) (Note endorsed in blank carried with it assignment of related mortgage, and assignee had standing to enforce note and mortgage. Note was not uncertain as to interest rate—even though it was interest-only, adjustable rate—because South Carolina UCC permitted looking beyond four corners of instrument to determine interest. Debtors lacked standing to challenge validity of, or noncompliance with, pooling and servicing agreement. Endorsement of note after attachment to proof of claim was not stay violation, since owner of mortgage may transfer interest after bankruptcy filing. Property owner holds only legal and not equitable interest in mortgaged property.), aff'd, No. 7:12-cv-02031-JMC, 2013 WL 1115597 (D.S.C. Mar. 18, 2013) (Childs).).
Washington v. Saxon Mortg. Servs. (In re Washington), 469 B.R. 587 (Bankr. W.D. Pa. Mar. 7, 2012) (Fitzgerald) (Rooker-Feldman doctrine prevented challenge to proof of claim when state court foreclosure judgment had been entered in favor of Deutsche Bank. Ruling by bankruptcy court that bank was not creditor or had no claim would invalidate foreclosure judgment. Applying Correia v. Deutsche Bank National Trust Co. (In re Correia), 452 B.R. 319 (B.A.P. 1st Cir. June 30, 2011) (Haines, Votolato, Deasy), debtor was not party to pooling and servicing agreement and lacked standing to challenge validity of mortgage assignments. Debtor would have standing to object to claim based on failure to comply with Uniform Commercial Code.).
Williams v. BAC Home Loans Servicing, L.P. (In re Williams), No. 10-7059, 2012 WL 695832 (Bankr. D. Kan. Mar. 1, 2012) (Karlin) (Note payable to one entity and mortgage to another did not result in improper splitting when mortgage provided agency relationship between two entities. Debtors' only basis for treating first mortgage as unsecured and unenforceable was that note had been made in favor of one entity and mortgage in favor of different entity. Defendants BAC Home Loan Servicing, L.P., and MERS were entitled to summary judgment.).
Ashlock v. Wells Fargo Home Mortg., Inc. (In re Ashlock), No. 11-1162, 2012 WL 554998 (Bankr. E.D. Tenn. Feb. 21, 2012) (Cook) (State court dismissal of complaint alleging negligent and wrongful handling of loan modification barred bankruptcy proceeding alleging violations of Home Affordable Modification Program.), subsequent determination of 2012 WL 171591 (Bankr. E.D. Tenn. Jan. 20, 2012) (Cook) (Bankruptcy court lacked jurisdiction to consider debtor's claim for damages for negligent implementation of the HAMP program when relief from stay was granted to mortgage holder that foreclosed prepetition and plan did not provide for payment of any claim with respect to the mortgage.).
Williams v. BAC Home Loans Servicing, L.P. (In re Williams), No. 10-7060, 2012 WL 479930, at *3 (Bankr. D. Kan. Feb. 14, 2012) (Karlin) (Note endorsed in blank in possession of BAC Home Loans Servicing is enforceable negotiable instrument, even if BAC is not beneficial owner. Article 3 of Kansas UCC permits enforcement of negotiable instrument by holder, by one in possession with rights of holder, or by one not in possession if entitled to enforce instrument. "The fact that Bank of America may no longer be the beneficial owner of the note is immaterial as to its ability to enforce the note.").
In re Walker, 466 B.R. 271, 287 (Bankr. E.D. Pa. Feb. 13, 2012) (Frank) (As maker of note, debtor could discharge obligation by payment under U.C.C. § 3-602, but debtor lacked standing to object to proof of claim on ground that assignment failed to comply with pooling and servicing agreement. Bank of New York Mellon had authority to file proof of claim on behalf of securitized trust, since bank had right to enforce note under Pennsylvania UCC. Note was negotiable instrument, giving bank "right to payment that is an allowable bankruptcy claim, regardless of whether [bank] is the party ultimately entitled to the economic benefit of the Debtor's repayment of the Note.").
White v. Asset Mgmt. Holdings, LLC (In re White), No. 11-5037, 2012 WL 404927 (Bankr. D. Kan. Feb. 7, 2012) (unpublished) (Somers) (Reaffirmation agreement in prior Chapter 7 case was only effective against joint debtor who appeared at hearing. Although agreement failed to include clear and conspicuous statements advising debtors of right to rescind and that reaffirmation was not required, failure to fully comply with § 524 did not render reaffirmation order void.).
Ossman v. CitiMortgage, Inc. (In re Ossman), No. 1:11-ap-01634-MT, 2012 WL 315485 (Bankr. C.D. Cal. Jan. 31, 2012) (Tighe) (Complaint alleging noncompliance with HAMP survived motion to dismiss. Issues included whether debtor had made payments and otherwise performed under trial payment agreement and whether defendant represented that if debtor fully complied, loan would be permanently modified.).
Brown v. Wells Fargo, NA (In re Brown), No. 11-00366-8-JRL, 2012 WL 246470 (Bankr. E.D.N.C. Jan. 25, 2012) (Leonard) (Adversary proceeding against mortgagee dismissed for failure to prosecute.).
Ginn v. CitiMortgage, Inc. (In re Ginn), 465 B.R. 84 (Bankr. D.S.C. Jan. 11, 2012) (Burris) (Complaint alleging violation of § 506(b) when creditor did not seek court approval to charge postpetition fees did not survive motion to dismiss. Count asserting that postpetition charges violated Bankruptcy Rule 2016 was also dismissed, because there is no private right of action under Rule. To extent complaint alleged that charging postpetition fees violated prepetition contract between parties, as modified by cure-and-maintain plan, action survived dismissal.).
Nix v. Household Fin. Corp. II (In re Nix), No. 11-80062-HB, 2012 WL 27667, at *7 (Bankr. D.S.C. Jan. 5, 2012) (Burris) (Actions under RESPA, under the South Carolina Unfair Practices Act, for violations of § 506(b) and of Bankruptcy Rule 2016 were dismissed for failure to state claims or because confirmation barred action based on preconfirmation activity. Blanket reservation of rights in form plan was insufficient to defeat res judicata effect of confirmation with respect to causes of action "based on pre-confirmation activity that arise from the same or related facts that were relevant to confirmation." Accord Ginn v. CitiMortgage, Inc. (In re Ginn), No. 11-80054-HB, 2012 WL 112974 (Bankr. D.S.C. Jan. 11, 2012) (Burris); Pressley v. CitiMortgage (In re Pressley), No. 11-80048-HB, 2012 WL 115379 (Bankr. D.S.C. Jan. 12, 2012) (Burris).).
In re Polkinghorn, No. 08-31360, 2011 WL 6782546 (Bankr. W.D.N.C. Dec. 27, 2011) (Beyer) (Home mortgage lender's arrearage claim increased during prior completed Chapter 13 case by addition of forced-place insurance. Arrearage was added to principal balance of loan rather than treated as arrearage in current plan.).
Bishop v. GMAC Mortgage, LLC (In re Bishop), No. 11-5055, 2011 WL 6813241 (Bankr. M.D. Ga. Dec. 27, 2011) (Walker) (Prepetition foreclosure sale was neither void nor voidable when security deed gave MERS authority, as nominee of lender and lender's successors and assigns, to transfer and assign security deed to GMAC. GMAC had authority to conduct prepetition foreclosure sale. Security deed adequately described MERS's authority.).
Edwards v. Deutsche Bank Nat'l Trust Co. (In re Edwards), No. 11-2505, 2011 WL 6754073 (Bankr. E.D. Wis. Dec. 23, 2011) (McGarity) (As possessor of note, endorsed in blank, bank was holder entitled to enforce note. Debtor was not party to, nor third-party beneficiary of, pooling or servicing agreements, lacking standing to challenge assignments. Alleged violations of pooling and service agreements were not relevant to standing of bank to enforce note. Adversary proceeding contesting standing of Deutsche Bank was dismissed, with further hearing required to determine whether cause existed to lift stay.).
In re Spaulding, No. 10-33117-DOT, 2011 WL 6209185, at *2 (Bankr. E.D. Va. Dec. 14, 2011) (Tice) (Deutsche Bank is not compelled to produce discovery with respect to assignments of note and deed of trust underlying its claim when debtors offered no authority that any impropriety in those assignments would affect Deutsche Bank's right to payment. Debtors objected to proof of claim, asserting that series of transfers involving JP Morgan Chase, Long Beach Mortgage Company, Home Advantage Funding Group and MERS were incomplete or nonexistent. "Deutsche Bank has standing to assert a claim against debtors. With respect to debtors' argument that perhaps there may have been some underlying impropriety in the transfer of the note and deed of trust to Deutsche Bank, the court notes that debtors have not proffered to the court any authority that would suggest that such an impropriety would deprive Deutsche Bank of the ability to collect under the note and deed of trust. Absent such authority, if debtors wish to pursue their claim of an alleged impropriety, that claim should be asserted against the offending parties to the allegedly improper transfer and not as a defense to Deutsche Bank's proof of claim.").
Washington v. Deutsche Bank Nat'l Trust Co. (In re Washington), No. 11-4114, 2011 WL 6010247 (Bankr. W.D. Mo. Dec. 1, 2011) (Venters) (Possession of note, endorsed in blank, gave Deutsche Bank authority to enforce note as party in physical possession under Missouri law. Complaint challenging validity of security interest was impermissible collateral attack on orders granting stay relief in prior bankruptcy.).
In re Jeter, No. 08-07872-HB, 2011 WL 6014173 (Bankr. D.S.C. Dec. 1, 2011) (Burris) (Confirmation of plan that cured mortgage arrearage to CIT Group and maintained payments is res judicata with respect to debtors' challenge to standing of CIT Group to seek stay relief.).
Small v. Seterus, Inc. (In re Small), No. 11-00169, 2011 WL 7645816 (Bankr. S.D. Ala. Nov. 22, 2011) (Mahoney) (Withdrawal of reference recommended on complaint alleging prepetition state law violations concerning foreclosure; applying Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), causes of action were noncore, and bankruptcy court could not enter final judgment.), report and recommendation adopted by No. 12-MC-00005-CG, 2012 WL 1081080 (S.D. Ala. Apr. 2, 2012) (Granade).).
In re Pastran, 462 B.R. 201, 213 (Bankr. N.D. Tex. Nov. 21, 2011) (Jernigan) (Notwithstanding concern that issues with mortgage lender have not be resolved, full $20,992.45 fee and expense request is granted, based on benefit to debtor staying in home for five years. "To use a phrase popular with politicians, it seems, in many respects, all that has been accomplished here is 'kicking the can down the road.' Bankruptcy certainly is, and should be about, solving problems. Is the Debtor's problem with her mortgage lender on her home solved? No. The Debtor is almost certainly looking at more litigation in the state courts, post-discharge, or maybe in another bankruptcy case. Debtor's Counsel urged vociferously that he has tried mightily to solve the Debtor's problems with her mortgage company, and that despite such problems, he has been able to keep the Debtor in her house thus far. And Debtor's Counsel urges that he is essentially dealing with a Goliath every time he goes up against a mortgage servicer/holder and requests chain of title, proof of holder status, and information about fees charged, such as inspection and appraisal fees. Debtor's Counsel also urges that it is unreasonable to always 'back down' and enter into an agreed order with a mortgage lender pertaining to a debtor's home and that it would have a chilling effect on debtors and the debtors' bar if the court did not allow fair (albeit large) fees in a case like Ms. Pastran's.").
DiMare v. Ameriquest Mortg. Co. (In re DiMare), 462 B.R. 283 (Bankr. D. Mass. Nov. 15, 2011) (Hillman) (Portions of complaint against mortgage lender survive summary judgment but several state law claims did not. Negligence claims failed because debtor could not identify any duty owed to her by defendant. Promissory fraud failed because debtor went forward with closing after being informed of mortgage terms. Claims of unconscionable conduct and for restitution were dismissed. Emotional distress action was not viable. Count alleging violation of federal and state Truth in Lending Acts for failure to provide adequate pre-closing disclosures survived summary judgment.).
Brannan v. Wells Fargo Home Mortg., Inc. (In re Brannan), No. 04-01037, 2011 WL 5331601 (Bankr. S.D. Ala. Nov. 7, 2011) (Mahoney) (Putative class action dismissed alleging that Wells Fargo committed fraud on court by filing false affidavits in support of stay relief motions.).
In re O'Biso, 462 B.R. 147 (Bankr. D.N.J. Nov. 7, 2011) (Kaplan) (Motion to expunge mortgage lender's proof of claim is denied because debtor has no private right of action for breach of Home Affordable Mortgage Program (HAMP) obligation, citing Stolba v. Wells Fargo & Co., No. 10-cv-6014 (WJM) (MF), 2011 WL 3444078 (D.N.J. Aug. 8, 2011) (Martini). Debtor could not state claim for breach of contract when lender did not guarantee permanent loan modification.).
Fleury v. Special Loan Servicing, LLC, No. 11-02198-E, 2011 WL 4851141, at *10 (Bankr. E.D. Cal. Oct. 6, 2011) (Sargis) (Debtor's complaint against mortgage servicer was dismissed for "fatal lack of adequate description to support their general allegations. They make repeated conclusory allegations, expecting the court to accept them as fact. Though the court is to resolve all reasonable inference in favor of the nonmoving party, it does not sit blithely by as a party utterly fails to provide sufficient factual detail.").
Harris v. Ben-Ezra & Katz, P.A. (In re Harris), 458 B.R. 591 (Bankr. N.D. Fla. Oct. 3, 2011) (Killian) (Bankruptcy Rule 2016 not implicated when confirmation vested property in debtor and postconfirmation fees of mortgage lender would be paid by debtor, not estate.).
Whitaker v. EMC Mortg. Corp. (In re Whitaker), No. 09-9000, 2011 WL 4790755 (Bankr. N.D. Ga. Sept. 30, 2011) (Murphy) (Mortgage lender's motion for summary judgment granted in complaint alleging failure to agree to loan modification.).
Miller v. Deutsche Bank Nat'l Trust Co. (In re Miller), No. 10-1757 MER, 2011 WL 4625412 (Bankr. D. Colo. Sept. 30, 2011) (Romero) (Debtors failed to allege how CitiMortgage—servicer of second mortgage, not involved in foreclosure by Deutsche Bank—was connected to fraud by other defendants in fraudulent foreclosure scheme.).
Hodder v. Wilshire Credit Corp. (In re Hodder), No. 4:10-ap-00798-JMM, 2011 WL 4073005 (Bankr. D. Ariz. Sept. 12, 2011) (Marlar) (Debtors were judicially estopped to contest validity of mortgage when debt was scheduled as secured and debtors responded to prior stay relief motion by stipulating validity of mortgage. Failure to comply with prior stipulation was cause to lift stay. Adversary proceeding contesting validity of mortgage was moot. Citing Stern v. Marshall, __ U.S. __, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (June 23, 2011), after granting mortgage creditor stay relief, court had no further jurisdiction to decide state law issues.).
Kline v. Deutsche Bank Nat'l Trust Co. (In re Kline), No. 09-1035 J, 2011 WL 3879485 (Bankr. D.N.M. Sept. 2, 2011) (Jacobvitz) (Rooker-Feldman doctrine barred debtor's re-litigation of state court foreclosure issues after stay relief was granted to foreclose.), aff'd, No. 09-01035, 2012 WL 1963388 (B.A.P. 10th Cir. June 1, 2012) (unpublished) (Brown, Rasure, Romero), aff'd, No. 12-2111, 2013 WL 1668342 (10th Cir. Apr. 18, 2013) (Briscoe, Holloway, Tymkovich).).
In re Quinones, No. 10-10263 BKT, 2011 WL 3880933 (Bankr. D.P.R. Sept. 2, 2011) (Tester) (Evidentiary hearing is required to determine whether unclean hands prevented debtor's challenge to secured status when mortgage certification contained errors and was recorded incorrectly in property registry.).
Castano v. Onewest Bank FSB (In re Castano), No. 10-1172, 2011 WL 3809932 (Bankr. N.D. Cal. Aug. 26, 2011) (Jaroslovsky) (No private right of action exists under HAMP.).
Mattox v. Wells Fargo, NA (In re Mattox), No. 10-5041, 2011 WL 3626762 (Bankr. E.D. Ky. Aug. 17, 2011) (Wise) (Kentucky Consumer Protection Act does not apply to claim that Wells Fargo misapplied plan payments because real estate transactions by individual homeowner are not regulated by KCPA. Count under Fair Debt Collection Practices Act fails because Wells Fargo did not qualify as "debt collector" under Act when Wells Fargo began servicing debt prior to default. Fraudulent misrepresentation was not possible because Kentucky law required that fraud relate to present or preexisting fact and alleged misrepresentation was directed to lender's future performance. Count alleging breach of contract was preempted by § 362(k) provision for damages for stay violations. Count alleging violation of Real Estate Settlement Procedures Act failed because Wells Fargo responded to debtor's qualified written requests. Count alleging intentional infliction of emotional distress was dismissed because lender's alleged misbehavior did not rise to level of outrageous conduct required under Kentucky law. No cause of action existed under Kentucky law for "pattern and practice" of tracking and internally posting fees. Count alleging Truth in Lending Act violation survived dismissal because of disputed material fact as to ownership of note and mortgage. Count alleging willful stay violation by misapplication of plan payments survived dismissal.).
Lacey v. BAC Home Loans Servicing, LP (In re Lacey), No. 10-1249, 2011 WL 3607963 (Bankr. D. Mass. Aug. 16, 2011) (Feeney) (Jurisdictional questions remained in adversary proceeding alleging breach of good-faith duty in negotiating mortgage modification and wrongful foreclosure.).
Cruz v. Aurora Loan Servs. LLC (In re Cruz), 457 B.R. 806 (Bankr. S.D. Cal. Aug. 11, 2011) (Mann) (Because MERS, not ING Bank, was beneficiary of record, ING Bank was not authorized to proceed with foreclosure and sale was void. California statute requiring recording of assignment of beneficial interest before foreclosure applied to deed of trust as well as mortgage.).
In re Pico, No. 10-11408-MM13, 2011 WL 3501009 (Bankr. S.D. Cal. Aug. 9, 2011) (unpublished) (Mann) (Postpetition loan modification between debtors and lender's predecessor was enforceable notwithstanding subsequent disqualification letter that was not received by debtors. Even if received, letter was too late for withdrawal of accepted offer.).
Carlson v. Wells Fargo Bank, N.A. (In re Carlson), No. 11-4005, 2011 WL 3420436 (Bankr. D. Mass. Aug. 2, 2011) (Hoffman) (Assignment from MERS was properly executed before notary by person purporting to be officer and was statutorily sufficient to transfer mortgage; Wells Fargo was mortgagee, with standing to seek stay relief.).
Vela v. Freddie Mac Loan Mortgage Corp. (In re Vela), No. 11-5004, 2011 WL 3439256 (Bankr. S.D. Tex. Aug. 2, 2011) (Isgur) (Factual uncertainty whether foreclosure sale complied with Texas law and provisions of deed of trust prevented summary judgment in action for wrongful foreclosure.).
DiPietro v. Wachovia Mortgage, FSB (In re DiPietro), No. 10-1123, 2011 WL 3292851 (Bankr. N.D. Cal. July 29, 2011) (Jaroslovsky) (Although debtor had been lured into home refinancing by "very dishonest people" who forged documents and obtained higher loan amount than debtor agreed, debtor ratified loan by cashing escrow check, depriving innocent lender of opportunity to protect itself.).
In re Davis, 452 B.R. 610 (Bankr. E.D. Mich. July 27, 2011) (Shefferly) (U.S. trustee had standing to seek Bankruptcy Rule 2004 examination of mortgage lender, and settlement of debtor's claims against lender for stay violations did not preclude 2004 examination. Court rejects creditor's argument that 2004 examination by U.S. trustee would usurp Chapter 13 trustee's responsibilities. Duties of Chapter 13 trustee in § 1302 are not same as duties of U.S. trustee under 28 U.S.C. § 586.).
Mayeres v. BAC Home Loans, No. 11-1516 (MBK), 2011 WL 2945833 (Bankr. D.N.J. July 21, 2011) (Kaplan) (Bankruptcy court lacked subject matter jurisdiction over complaint seeking to invalidate mortgage lien; Rooker-Feldman prevented determination of validity of prepetition foreclosure.).
Verity v. Wells Fargo Bank (In re Verity), No. 10-02373 (DHS), 2011 WL 2940668 (Bankr. D.N.J. July 19, 2011) (unpublished) (Steckroth) (Granting protective order, bank had offered to make original documents available for inspection at four different locations, and bank would not be required to travel to North Carolina for convenience of out-of-state expert.).
Ridley v. Deutsche Bank Nat'l Trust Co. (In re Ridley), 453 B.R. 58 (Bankr. E.D.N.Y. July 18, 2011) (Stong) (Complaint alleging that predecessor of defendant falsely promised to refinance debtor's loan on more favorable terms did not allege sufficient facts to support plausible claim for fraudulent concealment but did allege sufficient facts to support plausible claim for fraudulent inducement. Amendments to Nevada's Unfair Lending Practice Act enacted after alleged unfair lending practice, did not apply.).
Harris v. Wells Fargo Bank, N.A. (In re Harris), No. 10-3684, 2011 WL 2708691 (Bankr. S.D. Tex. July 11, 2011) (Isgur) (Statute of frauds defeated enforcement of oral forbearance agreement, and estoppel doctrine did not apply in absence of oral agreement to sign written contract. Complaint alleging that Wells Fargo breached prepetition forbearance agreement did not state that written agreement had been entered into or that Wells Fargo had orally agreed to sign written agreement. Complaint sufficiently stated fraud cause of action, but should more specifically state basis for fraud.).
Lopez v. OneWest Bank, FSB (In re Lopez), No. 10-2041, 2011 WL 10716807 (Bankr. E.D. Cal. July 1, 2011) (unpublished) (Sargis) (Mortgagee's notice of escrow shortfall and increase in payments would not support complaint for violation of automatic stay. There was no evidence of coercion or harassment.).
Duong v. U.S. Bank, N.A. (In re Duong), 451 B.R. 800 (Bankr. N.D. Ohio June 29, 2011) (Morgenstern-Clarren) (Debtors were not liable for $100,000 that had been deferred to end of mortgage in prior modification when $100,000 was omitted in subsequent modification. Current mortgage holder was not entitled to equitable reformation of contract based on unilateral mistake doctrine.).
In re Sheetz, 452 B.R. 746 (Bankr. N.D. Ind. June 28, 2011) (Grant) (Trustee's motion for Bankruptcy Rule 2004 examination of mortgage servicer was granted. Cause included conflicting information from servicer regarding amount of mortgage claim, arrearages and other charges.).
In re Youk-See, 450 B.R. 312 (Bankr. D. Mass. June 16, 2011) (Feeney) (U.S. trustee had standing under Bankruptcy Rule 2004, § 307 and 28 U.S.C. § 586 to conduct discovery with respect to loan modification between debtor and BAC Home Loans Servicing. Subpoena was quashed only to extent it required BAC representatives to travel more than 100 miles from place of employment, applying Federal Rule of Civil Procedure 45.).
Salvador v. Bank of Am., Nat'l Ass'n (In re Salvador), 456 B.R. 610, 622 (Bankr. M.D. Ga. May 12, 2011) (Smith) (Georgia laws governing fair lending were preempted by federal law, and debtors had no private right of action to enforce HAMP agreement that was never consummated. Debtors and mortgage lender only agreed to continue to negotiate for HAMP agreement. "As far as this Court has been able to determine, no court in the country has accepted a third-party beneficiary claim relating to HAMP. The courts have unanimously held that borrowers are not intended beneficiaries, but merely incidental beneficiaries to the contract between loan servicers and the government under the HAMP program." RESPA count of complaint also was dismissed, except claim for failure of Wells Fargo to respond to qualified written request.).
Lilley v. Wells Fargo, N.A. (In re Lilley), No. 10-9110, 2011 WL 1428089 (Bankr. M.D.N.C. Apr. 13, 2011) (Stocks) (Complaint alleging "upon information and belief" that mortgage creditor was unsecured, based on canceled or void deed of trust, survived motion to dismiss under Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (May 18, 2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (May 21, 2007).).
In re Salazar, 448 B.R. 814, 824 (Bankr. S.D. Cal. Apr. 12, 2011) (Mann) (MERS nominee status in deed of trust did not satisfy California Civil Code requirement that assignments be recorded before foreclosure. MERS system does not act as alternative to statutory foreclosure law in California. Although US Bank, acting as trustee for mortgage loan, met minimal requirements for standing to seek stay relief, at time of prepetition foreclosure it was not beneficiary of any recorded assignment of deed of trust."US Bank as the foreclosing assignee was obligated to record its interest before the sale despite MERS' initial role under the DOT."), rev'd and remanded, 470 B.R. 557 (S.D. Cal. Mar. 15, 2012) (Lorenz).).
Densmore v. Litton Loan Servicing, L.P. (In re Densmore), 445 B.R. 307 (Bankr. D. Vt. Mar. 21, 2011) (Brown) (Standing to file proof of claim and to enforce debt depended on proof that mortgage note was endorsed to Litton prior to commencement of case. There was material issue of fact as to when note was endorsed in blank by original lender. Under Vermont U.C.C. Article 3, it was undisputed that Litton was in possession of original note, but date of endorsement was critical to standing to enforce obligation.).
In re Michalski, 449 B.R. 273 (Bankr. N.D. Ohio Mar. 4, 2011) (Woods) (U.S. trustee had standing and authority to conduct discovery of mortgage creditor under Rule 2004; motion for oral examination of Wells Fargo representative did not exceed Rule 2004 authority to examine any entity by party in interest. U.S. trustee's examinations related to validity of Wells Fargo's proof of claim and whether it included objectionable fees. Court adopted reasoning of In re Countrywide Home Loans, Inc., 384 B.R. 373 (Bankr. W.D. Pa. Apr. 1, 2008) (Agresti). Motion to quash was granted as to specific request for complete copies of Wells Fargo's policies and procedures applicable to debtors' account—requests were overly broad and intrusive.).
Patterson v. Homecomings Fin., LLC (In re Patterson), 444 B.R. 564 (Bankr. E.D. Wis. Feb. 23, 2011) (Kelley) (Complaint alleging that mortgage creditor improperly assessed postpetition, preconfirmation attorney charges without court approval stated cause of action. Decisions are split with respect to whether § 506(b) required mortgage lender to seek court approval before charging postpetition attorney fees to account. Section 1322(e) provides that amount necessary to cure default will be determined under contract and nonbankruptcy law, but Bankruptcy Rule 2016 still requires disclosure of fees payable from bankruptcy estate.).
In re Borkowski, 446 B.R. 220 (Bankr. W.D. Pa. Feb. 22, 2011) (Deller) (Citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (Mar. 23, 2010), motion to reopen case and vacate order finding mortgage current was denied when Wells Fargo had notice of trustee's application to approve final accounting and did not assert underfunding of mortgage until 110 days after case closed. During pendency of case, Wells Fargo filed notice of increase in mortgage payment that failed to comply with confirmation order, which required any payment change to be noticed to trustee and debtor at least 20 days before taking effect. Wells Fargo slept on its rights when it did not object to, or pursue prompt relief from, confirmation order or order finding mortgage current.).
McCoy v. BNC Mortgage, Inc. (In re McCoy), 446 B.R. 453, 457 (Bankr. D. Or. Feb. 7, 2011) (Alley) (Complaint alleging wrongful foreclosure survives motion to dismiss when complaint made plausible claim that mortgage assignments were unrecorded. Oregon law permitted foreclosure when there had been assignments of trust deed and successor trustee's appointment was recorded. Deed of trust naming MERS as beneficiary could not give MERS more power than Oregon law permits. "A non-judicial sale may take place only if any assignment by BNC Mortgage has been recorded. As the Complaint sets out a plausible claim that one or more assignments from BNC Mortgage were unrecorded, the Defendants' motion to dismiss the claim for wrongful foreclosure will be denied.").
Vardaman v. Ocwen Loan Servicing, LLC (In re Bean), No. 09-1205-DWH, 2011 WL 482825 (Bankr. N.D. Miss. Feb. 7, 2011) (Houston) (Material disputed facts precluded summary judgment with respect to complaint alleging that Ocwen collected unauthorized charges after order declared mortgage current at conclusion of plan.).
McKey v. Ocwen Loan Servicing, LLC (In re McKey), No. 09-1155, 2011 WL 353246 (Bankr. N.D. Miss. Feb. 2, 2011) (Houston) (Material facts in dispute concerning application of plan payments and postpetition assessment of charges by Ocwen precluded summary judgment.).
Monk v. LSI Title Co. of Or., LLC (In re Monk), No. 10-6067-fra, 2011 WL 212831, at *4 (Bankr. D. Or. Jan. 21, 2011) (Alley) (Litton's motion to dismiss complaint alleging violation of discharge injunction is denied. Litton's claim was disallowed on trustee's objection when Litton failed to respond to request for documentation of security interest and perfection. After claim was disallowed, debtors completed payments and received discharge. Case was closed, then reopened for debtors' adversary proceeding to determine whether foreclosure violated discharge injunction. "Because [the claim] was 'disallowed,' it was not an 'allowed secured claim,' and the related lien was void pursuant to § 506(d). Defendant's claim was not of the type described in § 506(d)(1), and its claim was disallowed for reasons other than its failure to file a proof of claim. Thus, when the discharge order was entered in Debtors' case, Defendant held a 'disallowed' claim and a void lien. . . . The debt was disallowed under section 502 and, as provided by § 1328(a), it was discharged. A 'debt' is defined at § 101(12) as 'liability on a claim.' A 'claim' is defined as a 'right to payment . . . .' § 101(5)(A). Once the claim was disallowed, [Defendant] no longer had a right to payment and thus no longer had a 'claim' or a 'debt.' As it no longer possessed a 'debt,' it follows that it did not have a 'debt[ ] provided for under section 1322(b)(5),' and cannot use § 1328(a)(1) to except its nonexistent debt from discharge." Counts alleging rescission of post-discharge loan modification and violation of Fair Debt Collection Practices Act were dismissed; FDCPA claim alleged same facts as discharge injunction violation, and because debtors' remedy for violation of discharge injunction arises from Bankruptcy Code, simultaneous FDCPA claim was precluded.).
Hamilton v. Green Tree Servicing, LLC (In re Hamilton), No. 10-1061-DWH, 2011 WL 182861 (Bankr. N.D. Miss. Jan. 20, 2011) (Houston) (Summary judgment was denied all parties with respect to whether confirmed plan, order disallowing mortgage claim and order finding mortgage current are binding on successor mortgage holder/servicer. Factual and legal issues would be more fully developed on trial record. Debtor objected to proof of claim, to which no response was filed. Claim amount had been set in order, but creditor subsequently filed amended proof of claim to which no objection was filed. Creditor had received copies of all pleadings and orders but had elected not to participate in case. Court notes that Sun Finance Co. v. Howard (In re Howard), 972 F.2d 639 (5th Cir. Sept. 8, 1992) (Higginbotham, Duhé, Hunter), may require creditor with notice of claim objection to participate to protect its claim rights.).
Prisco v. US Bank, NA (In re Prisco), No. 09-90083, 2011 WL 9341 (Bankr. N.D.N.Y. Jan. 3, 2011) (unpublished) (Littlefield) (Pro se debtor's attack on modification agreement and on law firm that represented mortgage creditor fails to state cause of action.).
Rivers v. Green Tree Servicing, LLC (In re Rivers), No. 10-00026-NPO, 2010 WL 5375950 (Bankr. S.D. Miss. Dec. 22, 2010) (Olack) (Partial summary judgment was denied with respect to whether waiver of class action right was enforceable. Defendant was not seeking to enforce entire arbitration agreement, only to enforce purported waiver of class action right. Class action waiver was ambiguous because it failed to indicate whether it applied to all litigation or only to arbitration. Purported waiver stated that it related only to claims arising from contract, while debtor's cause of action arose from alleged violations of Bankruptcy Code in handling of plan payments. It was unnecessary to decide whether Mississippi law would enforce class action waiver when cause of action solely related to violations of bankruptcy law.).
Wilson v. Countrywide Home Loans, Inc. (In re Wilson), 442 B.R. 10, 19 (Bankr. D. Mass. Nov. 30, 2010) (Bailey) (Adversary proceeding challenging assignment of mortgage to Deutsche bank fails because assignment was not rendered invalid by alleged defects in pooling or service agreement. Proof of claim properly identified bank as claimant. Debtor was bound by agreement with respect to amount of prepetition arrearage. Debtor was not entitled to accounting when only justification for accounting was possibility that Bank diverted funds for purposes other than intended. "This is mere speculation, in light of which the request for accounting appears to be nothing more than what the defendants contend it is: a fishing expedition.").
Bankplus v. Wood (In re Wood), No. 09-05078-NPO, 2010 WL 4366486 (Bankr. S.D. Miss. Oct. 28, 2010) (Olack) (Bank perfected its first mortgage under Mississippi law; deed of trust executed by debtors for purchase of condominium was properly recorded.).
Sandlin v. Ameriquest Mortgage Co. (In re Sandlin), No. 08-00191-TOM, 2010 WL 4260030 (Bankr. N.D. Ala. Oct. 21, 2010) (Mitchell) (Class action certification was denied for lack of typicality and inadequacy of representation in adversary proceeding alleging nondisclosure of postpetition fees and expenses. Plaintiffs' counsel failed to prove adequacy of prior class experience. Debtors' testimony demonstrated unfamiliarity with facts and issues. Expert testimony revealed lack of uniformity in procedures concerning disclosure of postpetition fees and expenses among bankruptcy courts.).
Guevara v. Wells Fargo Bank, N.A. (In re Guevara), No. 08-03191, 2010 WL 4102274, at *2 (Bankr. N.D. Tex. Oct. 12, 2010) (Hale) (After disallowance of its mortgage claim, Wells Fargo did not violate § 506(b) or Rule 2016 when it "assessed, but did not charge or seek payment from the [debtors]" of additional attorneys' fees and charges. Citing Mann v. Chase Manhattan Mortgage Corp., 316 F.3d 1 (1st Cir. 2003), postpetition bookkeeping entries are not actionable when recovery of fees and charges was never sought from debtors.).
Koontz v. Everhome Mortgage Co. (In re Koontz), No. 10-3005, 2010 WL 5625883, at *10 (Bankr. N.D. Ind. Sept. 30, 2010) (Dees) (Material issues of fact remained with respect to mortgage claimant's perfection, assignment of debt and mortgage and claimant's entitlement to enforce note. Debtors overcame presumption of validity of proof of claim because claimant failed to follow requirements of Bankruptcy Rule 3001. There were unresolved issues regarding blank endorsement of note and possession of note. Filer of claim had not always been in actual possession of note, and chain of title was uncertain. Defendants' "lack of transparency and determination not to provide information or documents until required . . . has burdened both the debtor and this court.").
Newcomer v. Litton Loan Servicing, L.P. (In re Newcomer), 438 B.R. 527 (Bankr. D. Md. Sept. 30, 2010) (Catliota) (Homecomings Financial, servicer of loan before assignment to Litton Loan Servicing, violated automatic stay and plan by including prepetition escrow deficiency when plan required debtor to pay prepetition escrow deficiency as condition of keeping loan current postpetition. Homecomings's claim would create double recovery. Litton was ordered to recalculate amount of loan and remove prepetition escrow deficiency. Litton willfully violated stay by mailing letters and making automatic calls with knowledge of bankruptcy filing, but there was no evidence that debtor suffered damages. Debtor may seek attorney fees and costs related directly to Litton's actions.), on reconsideration of 416 B.R. 166, 184 (Bankr. D. Md. Apr. 29, 2009) (Catliota) (Complaint alleging violations of stay and of § 1327 and § 1328 based on letters threatening foreclosure and improper allocation of plan payments raised fact issues requiring trial; however, allegation of intentional infliction of emotional distress was dismissed for failure of record to support "level of severity required as a matter of Maryland law.").
Barnes v. CitiMortgage, Inc. (In re Barnes), No. 10-04302-399, 2010 WL 3895463 (Bankr. E.D. Mo. Sept. 29, 2010) (unpublished) (Schermer) (Debtors were estopped from pursuing FDCPA complaint against CitiMortgage because debtors failed to schedule the cause of action as property of estate. Res judicata also barred litigation, when district court had dismissed same cause of action prior to bankruptcy filing.).
Bailey v. Wells Fargo Bank, NA (In re Bailey), 437 B.R. 721 (Bankr. D. Mass. Sept. 29, 2010) (Boroff) (Adversary proceeding seeking to invalidate prepetition foreclosure sale on ground that Wells Fargo was not actual holder of mortgage at time of foreclosure stated cause of action for declaratory relief; causes of action for breach of implied covenant of good faith and fair dealing and for infliction of emotional distress and unjust enrichment were dismissed.).
Porovne v. Deutsche Bank Nat'l Trust Co. (In re Porovne), 436 B.R. 791 (Bankr. W.D. Pa. Sept. 27, 2010) (Agresti) (Rooker-Feldman doctrine precluded subject matter jurisdiction in adversary proceeding seeking to set aside prepetition sheriff's sale. Debtor had opportunity to litigate claims in prior state court action. If court had jurisdiction, prepetition sheriff's sale was valid under Pennsylvania law.).
In re Cothern, 442 B.R. 494, 501 (Bankr. N.D. Miss. Aug. 26, 2010) (Houston) (Mortgage creditor had standing to object to confirmation, but servicer's inappropriate charges were "so egregious . . . the court will award the Cotherns their attorney fees and costs . . . as a monetary sanction." Debtors agreed to pay real estate taxes and insurance directly and timely paid all premiums and taxes each year. Notwithstanding, servicer force-placed insurance and established escrow account with negative balance, then applied regular payments to suspense account, making account delinquent. Loan was deemed current and escrow account was dissolved. Servicer's objection to confirmation was overruled, and debtors' objection to proof of claim was sustained.).
In re Butts, No. 10-40538-MSH, 2010 WL 3369138, at *1 (Bankr. D. Mass. Aug. 25, 2010) (unpublished) (Hoffman) (Debtor can employ special counsel to prosecute adversary proceeding, with fees paid out of estate; opinion of mortgage defendant as to viability of debtor's claims "is of no relevance to the right of the Debtor to engage legal representation to evaluate and, if appropriate, prosecute those claims." Under § 330(a)(4)(B), focus is on "the welfare of the debtor, not the estate, in determining reasonable compensation. It is that standard which acts as a restraint of sorts by ensuring that Chapter 13 debtor's counsel does not run up excessive fees in pursuan[ce] of frivolous claims and it is the standard by which the work of the Debtor's general bankruptcy counsel and special counsel will be evaluated.").
Gulley v. Countrywide Home Loans, Inc. (In re Gulley), 436 B.R. 878 (Bankr. N.D. Tex. Aug. 23, 2010) (Jernigan) (Countrywide home equity loan was invalid for failure of Mrs. Gulley to execute loan documents and irregularities in notary acknowledgment. Home equity loan did not comply with strict requirements of Texas law, but Countrywide was allowed secured subrogation claim to extent it advanced property taxes.).
Reid v. Wells Fargo Home Mortgage, Inc. (In re Reid), No. 10-50052, 2010 WL 3000277 (Bankr. N.D.N.Y. Aug. 2, 2010) (unpublished) (Cangulos-Ruiz) (Adversary proceeding against Wells Fargo Home Mortgage and request for injunctive relief to stay foreclosure and eviction were dismissed based on res judicata effect of debtors' prior action in district court seeking same relief. Bankruptcy court previously granted stay relief to Wells Fargo to foreclose. Rather than appeal, debtors filed district court action seeking relief from foreclosure and eviction. District court dismissed complaint with prejudice.).
Feinberg v. Bank of New York (In re Feinberg), 442 B.R. 215 (Bankr. S.D.N.Y. July 30, 2010) (Morris) (Assignee of mortgage established standing to file proof of claim and enforce rights by producing original note and mortgage. Failure to attach documentation of assignment robbed proof of claim of prima facie validity, but defect under Bankruptcy Rule 3001 was curable, merely shifting burden of proof to bank. Citing Porges v. Gruntal & Co. (In re Porges), 44 F.3d 159 (2d Cir. Jan. 5, 1995) (Meskill, Mahoney, McLaughlin), dismissal of case by debtor after oral argument on objection to proof of claim did not prevent bankruptcy court from issuing final order on merits in adversary proceeding.).
Glenn v. Ocwen Loan Servicing, LLC (In re Glenn), No. 09-01089, 2010 WL 2203042 (Bankr. S.D. Ala. May 28, 2010) (unpublished) (Mahoney) (Ocwen Loan Servicing did not violate discharge injunction: Ocwen charged costs to debtors' account that had been disallowed in claims process, but no collection effort was made and Ocwen removed contested charges from debtors' account. The posting of charges internally did not violate discharge injunction since discharge injunction does not require alteration of Ocwen's accounting records and no collection efforts were made on disputed charges. Since no violation occurred and debtors established no damages, it was unnecessary to address whether debtors had private right of action under Bankruptcy Rule 2016.).
Jones v. Federal Nat'l Mortgage Ass'n (In re Jones), No. 10-1042, 2010 WL 2106056, at *5 (Bankr. N.D. Ohio May 26, 2010) (unpublished) (Morgenstern-Clarren) (Complaint stated plausible cause of action that defendant did not have valid lien and was not entitled to enforce underlying note; prebankruptcy state court foreclosure action had not been reduced to final judgment so as to trigger Rooker-Feldman bar to lien challenge in bankruptcy court. State court order did not resolve foreclosure action, and interlocutory order did not prevent bankruptcy court from having jurisdiction. "The doctrine does not bar the debtors from going forward in this court under the facts presented. . . . Rooker-Feldman is intended to bar a federal court from reviewing and reassessing a state court decision. The only state court decision here was that the state court complaint in foreclosure stated enough of a claim to survive the debtors' motion to dismiss and that the foreclosure action could proceed. The state court's decision is not the source of the injury complained of in this proceeding and this court is not being asked to decide whether the state court correctly decided the motion to dismiss. In fact, whether the state court complaint states a claim is irrelevant to the issues raised in this proceeding.").
Dotson v. BAC Home Loans Servicing, LP (In re Dotson), No. 09-01079-DWH, 2010 WL 2024102 (Bankr. N.D. Miss. May 19, 2010) (unpublished) (Houston) (Disputed material facts prevented summary judgment in adversary proceeding alleging mortgage creditor charged unauthorized fees in violation of § 506 and Bankruptcy Rule 2016.).
De La Fuente v. Wells Fargo Bank, N.A. (In re De La Fuente), 430 B.R. 764 (Bankr. S.D. Tex. May 18, 2010) (Bohm) (Wells Fargo was in contempt of agreed judgment by failing to correct errors in accounting for escrow and assessment of late fees; $2,500 daily fine was assessed until compliance plus $220.70 for overpaid late fees and $4,544 for attorney fees. "[T]he integrity of the bankruptcy system requires the good faith of both debtors and creditors.").
Canty v. Chase Home Fin., LLC (In re Canty), No. 09-70029-CMS, 2010 WL 1880710 (Bankr. N.D. Ala. May 7, 2010) (unpublished) (Stilson) (Debtors stated independent cause of action for fraud on court under § 105 based on allegation that signature page attached to creditor's affidavit in support of motion for stay relief was executed and/or notarized separately from actual affidavit. Doctrines of res judicata and waiver did not apply to bar debtor's cause of action.).
Holman v. Citimortgage, Inc. (In re Holman), No. AP 09-70031-CMS, 2010 WL 1880424 (Bankr. N.D. Ala. May 6, 2010) (unpublished) (Stilson) (Debtors stated independent cause of action for fraud on court under § 105 based on allegation that creditor filed fraudulent affidavit in support of stay relief motion. Debtor alleged that signature page attached to affidavit was executed and/or notarized separately from actual affidavit.).
Giza v. Amcap Mortgage, Inc. (In re Giza), 428 B.R. 266, 274 (Bankr. D. Mass. Apr. 15, 2010) (Boroff) (Partially dismissing complaint against mortgage lender asserting actions under TILA and Massachusetts Consumer Credit Cost Disclosure Act (MCCCDA), rescission count is preserved for trial, and tender of loaned funds is not necessarily a precondition to rescission. Applying Large v. Conseco Finance Servicing Corp., 292 F.3d 49, 55 (1st Cir. June 6, 2002) (Lynch, Campbell, Lipez): "when the right to rescission is disputed, rescission is not automatic and occurs when a designated decision maker finds the conditions for rescission have been met.").
In re Simarra, No. 09-14245, 2010 WL 2144150, at *1 (Bankr. D.R.I. Apr. 14, 2010) (unpublished) (Votolato) (Under local loss mitigation program (LMP), court refuses to condition creditor's participation on continuing payments by debtor while loan is reviewed for modification; creditor was ordered to participate in LMP in good faith. "This Court's LMP, and all the other ones that we know of, are intended to bring debtors and secured lenders together, to encourage them to discuss mutually beneficial financial resolution of their home mortgage difficulties, in a climate where both debtors and creditors are at risk of suffering great pecuniary harm even if they were acting prudently. With this in mind, and consistent with federal HAMP eligibility requirements, i.e., that homeowners must be in default or at imminent risk of default, a requirement that debtors must continue to make regular monthly mortgage payments during the loss mitigation process, will not be automatically or presumptively imposed as a condition to creditors' participating in the LMP. . . . Such a requirement would be in contravention, I believe, of every such federal, state, or local program implemented to deal with the present residential real estate crisis.").
Burks v. Countrywide Home Loans Servicing, LP (In re Burks), No. 09-1064-DWH, 2010 WL 1462073 (Bankr. N.D. Miss. Apr. 12, 2010) (unpublished) (Houston) (Issues of fact prevent summary judgment with respect to claims that mortgage servicer charged improper and unauthorized fees; trial must develop debtor's payment history and methodology employed by defendant in applying payments.).
Price v. Washington Mut. Bank (In re Price), No. 08-00189-TOM, 2010 WL 1416706 (Bankr. N.D. Ala. Apr. 8, 2010) (unpublished) (Mitchell) (Complaint that Chase charged or attempted to collect unlawful fees and expenses during Chapter 13 case is dismissed because Chase was not the servicer, its predecessor WaMu was, Chase did not assume WaMu's potential liabilities and claims that Chase was continuing to make illegal charges were hypothetical and conjectural for purposes of pleading standard in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (May 18, 2009).).
Sandlin v. Ameriquest Mortgage Co. (In re Sandlin), No. 08-00191, 2010 WL 1416699, at *22 (Bankr. N.D. Ala. Apr. 8, 2010) (unpublished) (Mitchell) (In complaint alleging that Ameriquest Mortgage failed to properly disclose fees and other charges prior to assessment and collection, § 105(a) gives court authority to provide remedy if Ameriquest failed to disclose postpetition, preconfirmation fees under § 506(b). Adopting Sheffield v. HomeSide Lending, Inc. (In re Sheffield), 281 B.R. 67 (Bankr. S.D. Ala. Mar. 6, 2001) (Mahoney): "The Court finds that Ameriquest had a duty to properly disclose the post-petition, pre-confirmation Fees in this case in order to (1) afford the Plaintiffs the opportunity to object to these Fees or (2) to give the Plaintiffs the opportunity to satisfy these Fees within their § 1322(b)(5) 'cure and maintenance plan.' This Court rejects Ameriquest's arguments that Plaintiffs had notice of these Fees via the terms of the Loan and [related affidavit] or that the Plaintiffs may have or should have known that fees such as the disputed Fees were possible pursuant to the terms of the Loan. Clearly, Plaintiffs did not have notice of the specific amounts of these Fees from Ameriquest's Proof of Claim, which is a necessary and required ingredient for proper disclosure.").
In re Streeter, No. 07-71190-JB, 2010 WL 2025556 (Bankr. N.D. Ga. Mar. 12, 2010) (Bihary) (In dispute with mortgage creditor over validity of buy-down agreement at loan closing, debtor's claims for affirmative relief could not be addressed because creditor had filed Chapter 11 and FDIC had taken over assets of bank that held interest in creditor.).
Maroun v. New York Mortgage Co., LLC (In re Maroun), 427 B.R. 197 (Bankr. D.N.H. Feb. 11, 2010) (Vaughn) (Court abstains from adversary proceeding asserting predatory lending and other unlawful acts; complaint largely concerned state law and could be efficiently adjudicated in state court.).
Maroun v. New York Mortgage Co., LLC (In re Maroun), 427 B.R. 200 (Bankr. D.N.H. Feb. 11, 2010) (Vaughn) (Claims under New Hampshire Consumer Protection Act and Truth-in-Lending Act are dismissed; court abstains from remaining state-law counts that could be adjudicated in state court.).
Galloway v. EMC Mortgage Corp. (In re Galloway), No. 09-01124-NPO, 2010 WL 364336, at *4 (Bankr. N.D. Miss. Jan. 29, 2010) (unpublished) (Olack) (Allegation that mortgage creditor misapplied plan payments states causes of action for violations of stay, discharge injunction and Bankruptcy Rule 2016, and for abuse of bankruptcy process; court may also use § 105(a) equitable powers. It is "plainly evident that § 506(b) and Bankruptcy Rule 2016, in concert, create both rights and duties for creditors in bankruptcy cases.").
Woodruff v. Chase Home Fin. LLC (In re Woodruff), No. 09-8014-WRS, 2010 WL 386209, at *10, *6-*9 (Bankr. M.D. Ala. Jan. 27, 2010) (Sawyer) (Class action complaint states cause of action for fraud upon court with allegation that mortgage creditor "has made it a policy to file false affidavits . . . in support of its motions for relief from the automatic stay, which are filed in large numbers in this Court." Section 105(a) provides remedy for violations of § 362(a) and if it is shown that creditor filed stay relief motions under § 362(d) without cause or lack of adequate protection. Factors supporting action for fraud on court were "(1) large numbers of motions for relief from the automatic stay are filed; (2) there is only a short period of time to dispose of these motions; (3) there is a huge economic disparity between the resources available to the parties; (4) the subject matter is critical to the debtor's survival; (5) these matters are only rarely litigated to a final order after a hearing on evidence. . . . The actions taken by Chase to date suggest that it would not quarrel with these propositions. However, the implication of its argument here is that it is free to file false affidavits in a bankruptcy court because the bankruptcy courts are powerless to do anything about it after the fact. Whether the Plaintiff's action is cast as one under § 105, the Court's inherent power, or an independent action for fraud on the court, a bankruptcy court may act to remedy the wrong complained of here.").
Jones v. Walter Mortgage Co. (In re Jones), 422 B.R. 58 (Bankr. N.D. Miss. Jan. 6, 2010) (Houston) (Mortgage creditor failed to seek Rule 2016(a) approval before charging hazard insurance premiums, but debtor was aware that forced-placed insurance would be imposed if debtor failed to obtain insurance; $2,500 sanction against creditor was credited against premiums, and balance of premiums must be paid by debtors over five years with market interest.).
Barkley v. Homecomings Fin., LLC (In re Hardaway), 421 B.R. 226 (Bankr. N.D. Miss. Jan. 5, 2010) (Houston) (Debtor's complaint stated cause of action that creditor improperly accounted for escrow shortages and may have been paid twice for shortages.).
Janssen v. Chase Home Fin., LLC (In re Janssen), No. 08-00252ELF, 2009 WL 5216859 (Bankr. E.D. Pa. Dec. 29, 2009) (Frank) (After discharge and reopening, in debtor's adversary proceeding against mortgage creditor, court rejects debtor's effort to renege on oral settlement agreement that was not reduced to writing. Parties had reached settlement agreement intended to be final, and it was not conditioned upon reduction to writing.).
Rodriguez v. Countrywide Home Loans, Inc. (In re Rodriguez), 421 B.R. 356, 374, 378, 380 (Bankr. S.D. Tex. Dec. 9, 2009) (Isgur) (In adversary proceeding alleging Countrywide violated automatic stay, discharge injunction and plan terms by misallocating payments to fees and expenses during Chapter 13 case: (1) Summary judgment was granted to Countrywide on allegations of stay violations. Under § 362(a)(1), debtors' payments under plan were voluntary, not result of lawsuit or other proceedings. Under § 362(a)(2), payments were voluntary, not a result of judgment. Under § 362(a)(3), payments were voluntary, and once received became Countrywide's property, eliminating any claim of improper exercise of control over bankruptcy estate. Under § 362(a)(4), alleged misapplications did not create, perfect or enforce lien. Under § 362(a)(5), alleged misapplications did not create, perfect or enforce lien against debtors' property. Under § 362(a)(6), acts of alleged misapplication did not recover prepetition claims but rather postpetition fees and expenses. Sections § 362(a)(7) and 362(a)(8) did not apply, since there was no allegation of setoff or tax court proceedings. (2) Summary judgment was granted to Countrywide on allegation of discharge injunction violation. Combination of §§ 1322(b)(2), 1322(b)(5) and 1328(a)(1) bar discharge of home mortgage debts. Declaring mortgage in default after discharge for nonpayment of accrued fees and expenses could not have violated discharge injunction. Section 1322(b)(2) prevents mortgages from being modified. Although § 1322(b)(5) permits curing delinquent mortgages and maintaining ongoing payments, mortgage is long-term debt surviving discharge under § 1328(a)(1). (3) Summary judgment was denied to Countrywide with respect to alleged violations of plan terms or confirmation order. Section 1327(a) binds debtor and creditor. Confirmation obligated mortgage lender to ensure that debtor had opportunity to cure arrearages under § 1322(b)(5). Mortgage creditor was obligated to allocate payments properly among principal, interest and arrearages as prescribed in plan. When creditor admitted misapplication of some mortgage payments, but disputed amounts, genuine issue of material fact existed. (4) Summary judgment was denied to Countrywide with respect to allegations of violations of Bankruptcy Rule 2016. Under plain language of rule, mortgage lender must file Rule 2016 application before collecting any reimbursable fees and costs while Chapter 13 case is pending. Rule continues to apply postconfirmation. Court analyzed four approaches to vesting under § 1327(b), adopting estate reconciliation approach announced in Waldron v. Brown (In re Waldron), 536 F.3d 1239, 1243 (11th Cir. Aug. 4, 2008) (Edmondson, Pryor, Johnson). Reconciliation approach is "only one of the four approaches that interpret §§ 1327(b) and 1306(a)(2) in harmony" and adoption of that approach "determines that Rule 2016 applies to acts to collect fees from post-confirmation earnings of the debtor because such earnings are property of the estate." Rule 2016 continues to apply when fees and expenses were assessed during bankruptcy but not collected until post discharge. Assuming that literal reading would terminate Rule 2016 on discharge, § 105 would then present issue whether Countrywide had prevented debtors from obtaining fresh start by "obviating the Debtor's ability to implement § 1322(b)(5).").
Jones v. Walter Mortgage Co. (In re Jones), No. 08-1068-DWH, 2009 WL 3233127 (Bankr. N.D. Miss. Sept. 30, 2009) (unpublished) (Houston) (Class certification denied when Debtor contractually agreed to acquisition of hazard insurance coverage by lender, she knew that force-placed hazard insurance would be imposed when she failed to acquire her own policy and debtor acknowledged no monetary damages as result of force-placed insurance.).
Hamilton v. Green Tree Servicing, LLC (In re Hamilton), 416 B.R. 549 (Bankr. N.D. Miss. Sept. 24, 2009) (Houston) (Factual issues preclude summary judgment on motion of defendant mortgage servicer, including whether current servicer assumed liabilities of prior servicer.).
Litton Loan Servicing v. Eads (In re Eads), 417 B.R. 728 (Bankr. E.D. Tex. Sept. 18, 2009) (Rhoades) (Rule 60(b) relief from default order sustaining objection to claim was appropriate when objection to claim containing allegation that lien was invalid was served on servicer's attorney but not on an officer or agent as required by Bankruptcy Rule 7004(b)(3). Litton established standing by showing that it held original note and deed of trust as assignee. Debtors failed to establish that original lien was invalid under Texas Constitution or other Texas law. Proof of claim was properly filed under Bankruptcy Rule 3001(a) because Texas law recognized that assignment of debt carried with it all liens incident to assigned debt.).
Fitzsimmons v. American Home Mortgage Servicing, Inc. (In re Fitzsimmons), No. 09-8094-ast, 2009 WL 3030139 (Bankr. E.D.N.Y. Sept. 16, 2009) (Trust) (Complaint alleging defective foreclosure does not survive summary judgment when evidence demonstrated that state court had set aside prepetition foreclosure for lack of proper service, debtor had never been divested of title or possession to property and debtor failed to plead viable claim for any damages.).
Murry v. Green Tree Servicing, LLC (In re Murry), 416 B.R. 290, 292 (Bankr. N.D. Miss. Aug. 25, 2009) (Houston) (Factual issues prevented summary judgment in adversary proceeding alleging that Green Tree improperly charged interest and other costs when payments were not timely received from Chapter 13 trustee. Debtor alleged that she had consistently made plan payments to trustee and that Green Tree was penalizing debtor for administrative procedures utilized by Chapter 13 trustee. Under Green Tree Financial Corp. v. Payton (In re Payton), 22 F.3d 1094 (5th Cir. 1994), "mortgage servicers cannot penalize debtors based on the administrative procedures utilized by Chapter 13 trustees when the debtors are current in their plan payments.").
Rojas v. Citi Corp Trust Bank FSB (In re Rojas), No. 09-07003, 2009 WL 2496807 (Bankr. S.D. Tex. Aug. 12, 2009) (Isgur) (Citing Campbell v. Countrywide Home Loans, Inc., 545 F.3d 348, 356 n.1 (5th Cir. 2008), bankruptcy court has subject matter jurisdiction over nationwide class action, and § 105 gives authority to grant remedies in adversary proceeding alleging that Citi Corp filed false proofs of claim for fees and costs that were not incurred.).
Cano v. GMAC Mortgage Corp. (In re Cano), 410 B.R. 506, 530-31, 535 (Bankr. S.D. Tex. Aug. 10, 2009) (Isgur) (Bankruptcy Code authorizes private rights of action to redress allegations that GMAC improperly applied plan payments and did not seek approval of postpetition fees and charges under Bankruptcy Rule 2016. Bankruptcy court has inherent contempt and equitable authority under § 105 to order disgorgement of monies that lender might have obtained in violation of court orders, Code provisions or Rule 2016. Court has subject matter jurisdiction under 28 U.S.C. § 1334 and § 157 over debtor's adversary proceeding, including jurisdiction over nationwide class action, if later certified. Citing Mendoza v. Temple Inland Mortgage Corp. (In re Mendoza), 111 F.3d 1264 (5th Cir. 1997), both debtor and mortgage lender are subject to bankruptcy court supervision after confirmation, and all parties are bound by Rule 2016 and § 1322(b)(5) to maintain mortgage account, including "the right to cure and maintain payments arising from fees and costs charged to the debtor's mortgage account post-petition. A debtor can only cure these defaults and keep her mortgage current if a mortgage lender discloses and charges these amounts as they arise. Hiding the charges and waiting until after the debtor has received a discharge before seeking collection of the amounts precludes the debtor from exercising the debtor's 'continuing right' to cure defaults and remain current. Hiding the charges and demanding the amounts post-discharge also defeats the congressional intent behind § 1322(b)(5) to allow debtors to 'preserve their primary asset,' their homestead, and the fresh-start purpose of the Bankruptcy Code." Under § 1322(b)(2) and (b)(5), mortgage lenders have contractual rights to collect fees and costs that are incorporated in confirmed plan, but confirmation imposes reciprocal rights and obligations on debtor and lender, including enforcement of Bankruptcy Rule 2016(a). Party seeking compensation from bankruptcy estate must file an application. That rule applies before mortgage lender can collect reimbursable fees and costs while Chapter 13 case is pending. "Chapter 13 and the fresh-start purpose do not allow lender to place a former debtor in default and foreclose on a debtor's home for undisclosed charges that accrued during the course of the bankruptcy case.").
Pena v. Wells Fargo Bank, N.A. (In re Pena), 409 B.R. 847 (Bankr. S.D. Tex. Aug. 5, 2009) (Bohm) (Motion to dismiss JP Morgan Chase Bank from adversary proceeding alleging improper charges for servicing of home mortgage denied when record did not establish that claims against Chase were improper and question of fact remained whether WAMU's liabilities were assumed by Chase.).
In re Waters, No. 05-54936 (RTL), 2009 WL 2230898 (Bankr. D.N.J. July 21, 2009) (Lyons) (Evidence did not enable court to determine payoff of mortgage, but amount conceded by debtor was fixed by court order.).
De La Fuente v. Wells Fargo Bank (In re De La Fuente), 409 B.R. 842 (Bankr. S.D. Tex. July 20, 2009) (Bohm) (Oral settlement agreement resolving adversary proceeding alleging that mortgage lender imposed costs in excess of amounts allowed under confirmed plan could not be reduced to judgment because oral agreement was unenforceable under Texas statute of frauds.).
In re Batiste, No. 03-10398, 2009 WL 2849077, at *3, *4-*5, *5 (Bankr. E.D. La. July 14, 2009) (Magner) (On show cause, injunctive relief is necessary because Ocwen Loan Servicing, LLC, has failed to cooperate with the court, has consistently shown an inability or refusal to comply with statutory requirements in Chapter 13 cases, can't seem to file accurate proofs of claim under Bankruptcy Rule 3001 and repeatedly violates the automatic stay. "Sanctions against Ocwen are appropriate for a number of reasons. . . . Ocwen has repeatedly abused the claims process and failed to honor the discharge injunction by attempting to collect from debtors and their bankruptcy estate disallowed or undisclosed debts immediately following discharge. The Court finds that this practice is in bad faith and requires greater regulation of Ocwen's behavior to curtail further abuse of the bankruptcy system. The record reflects that this is an ongoing pattern that imposes a burden on debtors and the Court to monitor Ocwen's claims and pleadings. The Court has repeatedly struck improper charges and has issued monetary sanctions against Ocwen. Ocwen's continuing disregard for bankruptcy law and procedure is a clear indication that monetary sanctions are simply ineffective. For these reasons, the Court will require Ocwen to institute the following procedures once a debtor has received a discharge under 11 U.S.C. § 1328: Within thirty days of the entry of the Order Discharging a debtor, Ocwen shall send a post-discharge statement ('Statement') to the debtor, debtor's counsel, and the Trustee. The Statement shall contain the following language: 'This is to confirm that the proof of claim, in the amount of _____, has been satisfied. Your account has been adjusted to show that you are current through ________ and that your next payment in the amount of _____ is due on [________].' If the claim was not satisfied, or if there were post-petition fees or costs that were properly noticed through the annual accounting procedure set forth in [In re McKain, No. 08-10411 (Bankr. E.D. La. May 1, 2009) (Magner)], the letter shall so notify the debtor and attach a detailed payment history in a form similar to that in In re Jones[, 366 B.R. 584 (Bankr. E.D. La. Apr. 13, 2007) (Magner)]." Applying § 105(a), Ocwen must immediately dismiss pending foreclosure action on filing of Chapter 13 case in district.).
In re Wells, 407 B.R. 873 (Bankr. N.D. Ohio June 19, 2009) (Morgenstern-Clarren) (Claim filed on behalf of mortgage creditor is disallowed when attachments failed to demonstrate that claimant was authorized to enforce note, power of attorney did not grant authority to party filing claim, and claim did not satisfy Bankruptcy Rule 3001(a) requirement of evidence that filer was in fact creditor.).
Jones v. Walter Mortgage Co. (In re Jones), No. 08-1068-DWH, 2009 WL 1651624 (Bankr. N.D. Miss. June 11, 2009) (Houston) (In adversary proceeding contesting mortgage creditor's force-placed insurance charges, court declined to certify class action under Federal Rule of Civil Procedure 23(a)(2) and (3); Plaintiff's attorney given 30 days to determine whether to seek continued class action certification.).
In re McKain, No. 08-10411, 2009 WL 2848988, at *4 (Bankr. E.D. La. May 1, 2009) (Magner) (Although debtors and Ocwen Loan Servicing settled motion to enforce automatic stay, Ocwen was subject to sua sponte sanctions. "Ocwen has consistently shown an inability or refusal to comply with . . . basic statutory tenets. As a result, discharged debtors have continued to incur the threat of foreclosure and collection of debts that had been discharged or disallowed. Ocwen has failed to disclose the assessment of postpetition charges to others, misleading them into a false sense that a fresh start was theirs to enjoy." Injunctive relief was appropriate, requiring Ocwen to ensure that its accounting procedures divided all Chapter 13 mortgage accounts into two internal administrative accounts—one containing sums paid under confirmed plans by Chapter 13 trustee and second reflecting principal amounts due on petition date. Ocwen must file and serve on debtors, debtors' counsel and trustee annual notices of any postpetition charges accrued during preceding calendar year, and if Ocwen does not give such notice, Ocwen would be prohibited from collecting or assessing those charges. At discharge, Ocwen must adjust its permanent records to reflect current nature of debtors' accounts.).
Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 404 B.R. 841 (Bankr. S.D. Tex. Mar. 24, 2009) (Bohm) (Class action is certified in adversary proceeding alleging that debtors in Southern District of Texas were harmed by Wells Fargo's improper assessment of postpetition fees and expenses in violation of § 506(b) and Bankruptcy Rule 2016.).
Price v. America's Servicing Co. (In re Price), 403 B.R. 775 (Bankr. E.D. Ark. Mar. 20, 2009) (Evans) (That America's Servicing Co. increased interest rate and monthly payments without notice justified relief from default judgment, and debtors could present evidence of damages at subsequent hearing; allegation of wrongful foreclosure stated no cause of action when home was not actually foreclosed but was merely placed in "foreclosure status.").
In re Beers, No. 08-12305, 2009 WL 1025402, at *3 (Bankr. D.N.J. Mar. 3, 2009) (Ferguson) (Although mortgagee was not entitled to rely on prima facie validity of its proof of claim because of failure to attach documentation to justify late charges and fees, debtor failed to show bad faith sufficient to impose sanctions under 28 U.S.C. § 1927, and debtor did not extend safe-harbor protection before seeking sanctions as required by Bankruptcy Rule 9011(c)(1)(A). Creditor's attorney delayed responding to discovery, wasting time of debtor and court. "The Firm's conduct is simply monumentally inconsiderate of the time of their adversaries and the court.[,]" but it did not rise to level of willful misconduct or bad faith required for sanctions under § 105(a).).
Pardo v. Countrywide Home Loans, Inc. (In re Pardo), 401 B.R. 509 (Bankr. S.D. Fla. Feb. 25, 2009) (Olson) (Chapter 7 debtor does not have standing to reopen Chapter 7 case to pursue alleged violations by mortgage creditor in prior Chapter 13 case.).
In re Wasson, 402 B.R. 561, 567 (Bankr. W.D.N.Y. Feb. 24, 2009) (Bucki) (Applying New York law, mortgage creditor failed to prove reasonableness or necessity of legal fees, inspection fees and valuation fees. $150 legal fee for proof of claim was also disallowed: "[M]ore like a bill than a recitation of complex rights, the proof of claim does not here warrant any extraordinary charge for its preparation. Further, any legal charges for its preparation would have required the same type of proof that is lacking to support the creditor's claim for attorney's fees in the foreclosure.").
Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 401 B.R. 872 (Bankr. S.D. Tex. Feb. 18, 2009) (Bohm) (Bankruptcy court has subject matter jurisdiction in adversary proceeding filed by various debtors in pending and closed cases alleging that Wells Fargo improperly assessed postpetition fees and expenses in violation of § 506(b) and Rule 2016; claims of homestead exemptions in affected properties did not deprive court of jurisdiction.).
Jones v. Walter Mortgage Co. (In re Jones), 400 B.R. 525 (Bankr. N.D. Miss. Jan. 15, 2009) (Houston) (Class action certification is denied in action alleging that mortgage creditor violated discharge injunction by improperly assessing forced-placed insurance costs. Predicate for violation of § 524(a)(2)—that creditor attempted to collect discharged debt—fails because charge for forced-placed insurance after discharge is not debt subject to discharge. Complaint may state cause of action for assessing and attempting collection of insurance charges that were not approved under Bankruptcy Rule 2016(a), but that Rule requires charges against bankruptcy estate.).
In re Booth, 399 B.R. 316 (Bankr. E.D. Ark. Jan. 14, 2009) (Taylor) (Mortgage creditor's objection to confirmation is sustained in part and denied in part: provision requiring court approval before assessing attorney fees modifies contract rights when mortgage and note expressly provide for reasonable costs and fees and Bankruptcy Rule 2016 does not require approval of court before assessing reasonable fees. Provision requiring allocation and application of payments to prepetition arrearages and ongoing mortgage payments is not improper modification, since it simply restates Code's cure rights under § 1322(b)(5). Provision that creditor notify trustee, debtors and attorney for debtors of any change in interest rate or other charges is not required under contract. Provision that creditor must fully comply with § 524(i) is impermissible, since it cannot be assumed that creditor will not comply with law. Provision for rejection of contract rights of creditor to demand arbitration, mediation and other alternative dispute resolution is improper modification of creditor's rights.).
In re Ochoa, 399 B.R. 563 (Bankr. S.D. Fla. Jan. 6, 2009) (Mark) (When notice of motion to deem mortgage current was not served on mortgagee in manner required by Bankruptcy Rule 7004(b)(3), relief from order is granted. Service on domestic corporation must include notice to attention of officer, managing or general agent, or other agent authorized by appointment or law to receive service. Although series of attorneys had filed papers on corporation's behalf, no attorney had express or implied authority to accept service of process for corporation.).
In re Lucio, No. 04-81962-G3-13, 2008 WL 5479110 (Bankr. S.D. Tex. Nov. 21, 2008) (Letitia Clark) (Mortgage creditor that participated in confirmation was aware of, and bound by, local Chapter 13 procedures for administration of home mortgages which required creditor to give notice of any payment adjustments to debtor, debtor's counsel and trustee; failure to give required notice limits reimbursement for forced-placed insurance to same amount as prior year.).
In re Janssen, 396 B.R. 624 (Bankr. E.D. Pa. Nov. 7, 2008) (Frank) (Closed case is reopened to permit prosecution of adversary proceeding alleging mortgage creditor failed to properly allocate plan payments between prepetition arrearages and postpetition payments. Bankruptcy court has subject matter jurisdiction to determine whether debtor fully performed confirmed plan that cured mortgage delinquency under § 1322(b)(5).).
In re Zunner, 396 B.R. 265, 266 (Bankr. W.D.N.Y. Nov. 5, 2008) (Bucki) (Cost of title update is element of secured debt that mortgagee may recover as part of its claim but cost of broker's price opinion is not; broker's price opinion does not determine anything, since value of property "would be whatever it will be upon foreclosure.").
Eddins v. GMAC Mortgage Co. (In re Eddins), No. 08-1058-DWH, 2008 WL 4905477 (Bankr. N.D. Miss. Oct. 20, 2008) (unpublished) (Houston) (Complaint alleging mortgagee violated automatic stay and discharge injunction, and seeking injunctive relief to prevent collection of undisclosed charges survives motion to dismiss.).
Myles v. Wells Fargo Bank, N.A. (In re Myles), 395 B.R. 599, 605 (Bankr. M.D. La. Oct. 15, 2008) (Dodd) (Alleged misconduct by Wells Fargo in Chapter 13 cases is not actionable under § 524(i) because debtors have not yet received discharge; unjust enrichment claims under Louisiana law fail because breach of contract claims based on confirmed plans are available; debtors do not have private right of action under §§ 105(a), 506, 1322, 1327, or Bankruptcy Rule 2016; claims for violation of automatic stay when Wells Fargo misapplied payments from Chapter 13 trustee under confirmed plans survive motion to dismiss.).
Armstrong v. Lasalle Bank Nat'l Ass'n (In re Armstrong), 394 B.R. 794, 801 (Bankr. W.D. Pa. Oct. 8, 2008) (Bentz) (Antimodification provision in § 1322(b)(2) is not violated by local rule that requires mortgage creditor to notify debtor, debtor's attorney and trustee of any changes in mortgage payments or interest rate. Failure to comply with notice requirement by creditor that did not object to confirmation results in "waiver of its rights associated with that failure." Bankruptcy Rule 9029(b) permits bankruptcy judge to regulate practice in manner consistent with law and rules.).
Boday v. Franklin Credit Mgmt. Corp. (In re Boday), 397 B.R. 846, 850-51 (Bankr. N.D. Ohio Oct. 2, 2008) (Speer) (Mortgage creditor must adjust its records to show debtors current and arrearages paid consistent with confirmed plan. "Section 1322(b)(5), by splitting a claim, means that a creditor is no longer permitted to allocate payments according to the terms of its [prepetition] contract. Instead, its effect is to require that any prepetition arrearage claim must be paid separately, according to the terms of the debtor's confirmed plan, based upon the creditor's allowed claim. The remaining debt, consisting of those payments which become due after the petition is filed, is then paid according to the terms of the parties' contract and original loan amortization as if no default ever existed. . . . From an accounting standpoint, this requires that a creditor allocate a debtor's loan payments in the following manner: First, the creditor must apply the arrearage payments it receives during the plan's duration in accordance with the terms of the plan, so that upon completion of the plan the debtor is deemed current on the prepetition amortization schedule. . . . Second, payments received from the debtor to service those payments which contractually accrue postpetition, must be allocated according to the terms of the parties' contract as if not default had occurred. . . . Creditors who adopt accounting procedures contrary to this method can be held liable for damages suffered by the debtor." Mortgage creditor improperly applied debtors' contractual payment to prepetition interest and other charges that continue to accrue under contract and wrongly credited payments received from debtors to oldest outstanding installment so that debtors were never brought current during plan and note was never cured as required under § 1322(b)(5). "Not only does this accounting fail to adequately take into consideration that the 'cure' provision of § 1322(b)(5) operates so as to split a creditor's secured claim into two separate claims—the underlying debt and the prepetition arrearage—the Defendant's accounting is violative of other aspects of bankruptcy law. First, it goes contrary to the binding effect of the Debtors' confirmed plan of reorganization, whose terms, among other things, provided that the Defendant was required to adjust its record so as to indicate that all arrearages had been paid, and that the amount due should correspond to the Parties' original amortization schedule. Second, to the extent that the Defendant seeks to collect from the Debtors, as a personal liability, funds for which it has not properly accounted, the Defendant is in violation of this Court's order of discharge.").
Jones v. Walter Mortgage Co. (In re Jones), No. 08-1068-DWH, 2008 WL 4905473 (Bankr. N.D. Miss. Oct. 1, 2008) (Houston) (Debtor's allegations of improperly forced-place insurance charges postconfirmation without stay relief and in violation of discharge injunction are better suited for determination by bankruptcy court than by arbitration.).
Cox v. Countrywide Home Loans Servicing, LP (In re Cox), No. 08-1060-DWH, 2008 WL 4900552 (Bankr. N.D. Miss. Sept. 19, 2008) (Houston) (Debtors state causes of action under § 524(a)(2) for charging of attorney fees and other expenses while case was being administered without disclosure and for determination whether Countrywide violated discharge injunction by assessing unpaid fees and charges after completion of payments.).
Rodriquez v. Countrywide Home Loans, Inc. (In re Rodriguez), 396 B.R. 436, 459-60 (Bankr. S.D. Tex. Sept. 18, 2008) (Isgur) (Countrywide's motion to dismiss adversary proceeding that alleged violations of discharge orders and confirmation orders is denied. Civil contempt authority under § 105 provides remedy, citing Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 127 S. Ct. 1105, 166 L. Ed. 2d 956 (2007) (use of § 105 to prevent abuse of process). Complaints allege that Countrywide violated confirmed plans and discharge orders by assessing attorney fees and postconfirmation charges without approval from bankruptcy court under
Winnecour v. Countrywide Home Loans, Inc. (In re Selected Cases in which Chapter 13 Trustee Seeks Relief against Countrywide Home Loans, Inc.), 396 B.R. 138 (Bankr. W.D. Pa. Aug. 14, 2008) (Agresti) (Proposed settlement of trustee's motions in 293 cases to compel Countrywide to provide loan histories and proper accounting is approved subject to further consideration whether $325,000 cash portion of settlement should go to trustee.).
In re Prevo, 394 B.R. 847, 850-51 (Bankr. S.D. Tex. Aug. 7, 2008) (Bohn) (When mortgagee's amended proof of claim withdraws some fees and charges and adds others—all without documentation to support reasonableness—objection is sustained and show cause is set to determine whether mortgagee should pay debtor's fees for filing and prosecuting objection. "Citi expects to have its fees and costs paid by the Debtor without attaching any supporting documents as instructed by the proof of claim form. Although filing a proof of claim without any documents attached is not in and of itself cause to disallow a claim, it does result in the loss of prima facie validity. After a debtor makes an objection to the claim, how is this Court supposed to analyze the reasonableness of an entry that reads 'BPO fees-$105.00' when it does not know what BPO means, what services were involved, who rendered the services, or the time spent on these services? . . . The same problem arises with each of these charges. Citi did not submit a single invoice or bill for any of the $1,141.58 charged to the Debtor for 'Foreclosure Fees and Costs.' The Court needs to see evidence that these fees were actually incurred by Citi, such as invoices detailing who performed what services and for how long—essentially the same information that would be included in a fee application. . . . The Court would also note that amending proofs of claim, only after the debtor files an objection, to withdraw fees that should not have been included in the first instance is unsatisfactory because it does not address the larger problem with the way mortgage companies are filing proofs of claim. Based upon hearings in this and other cases, the Court believes that certain members of the mortgage industry are intentionally attempting to game the system by requesting undocumented and potentially excessive fees and then reducing those fees in amended proofs of claim only after being exposed by debtor's counsel.").
Sanders v. Wells Fargo Home Mortgage, Inc. (In re Sanders), No. 03-1009, 2004 WL 5865044, at *4 (Bankr. E.D. Pa. Mar. 22, 2004) (unpublished) (Fox) (Class action complaint alleging that mortgage servicer was assessing postpetition, preconfirmation attorney fees without court approval may not be ripe for adjudication when defendants had not demanded payments from plaintiffs. "[S]ince the named plaintiffs have not completed their chapter 13 plan, before I can determine whether the plaintiffs' amended complaint states a cause of action, both parties must address whether the present complaint is ripe for adjudication.").
Spence v. Advanta Mortgage Corp. (In re Spence), No. 98-1221, 1999 WL 35108963 (Bankr. E.D. Va. May 24, 1999) (Mitchell) (Fictitious appraisal may have been fraud on lender and subsequent note holders but it did not fraudulently induce debtors into mortgage refinancing.).