Recently, the New York Appellate Division held an affidavit supporting an Oklahoma bank’s motion to foreclose a New York mortgage conformed to New York statutory requirements. An affidavit acknowledged out of state must be accompanied by a certificate of conformity under N.Y. Civil Practice Law and Rules §2309(c), providing that an oath taken outside New York is treated as if taken in New York if accompanied by a certificate required to entitle a deed to be recorded in New York. Oaths acknowledged outside New York by non-New York notaries require a certificate of conformity in substantially the form set out in Real Property Law §309-b. Here, an affidavit of the holder’s senior foreclosure litigation specialist established the mortgage, the default and assignment of the mortgage. It was accompanied by a “Uniform, All Purpose Certificate of Acknowledgment” which substantially conformed to Real Property Law §309-b. The borrowers did not oppose the motion to foreclose; the holder was therefore entitled to judgment. Midfirst Bank v. Agho, 991 N.Y.S.2d 623 (Aug. 13, 2014).
On October 22, the Ninth District Court of Appeals reversed a summary judgment decision allowing a trust unit of a bank to foreclose on a home. In this case, the loan servicers were unable to prove who held the promissory note when the trust unit requested a foreclosure order from the trial court. Employees at both servicers failed to attach records relied upon in their respective affidavits, but rather provided copies of the promissory note, mortgage, and the assignment of the mortgage. The Court held that the copies “do not establish when or if the Bank came into possession of the Note or that the Bank was in possession of the Note at the time of the filing of the complaint.” Deutsche Bank Natl. Trust Co. v. Dvorak, 2014-Ohio-4652 29, Ohio. Ct. App., 27120 (Oct.22, 2014)
On October 21, a federal judge dismissed the claims brought by the State AG that the GSEs violated state law by putting limits on the sale of pre- and post-foreclosure homes. Commonwealth v. Fed. Hous. Fin. Agency, No. 14-12878-RGS, 2014 BL 295733 (D. Mass. Oct. 21, 2014). In this case, the State argued that the GSEs violated a state law by refusing to sell homes in foreclosure to nonprofit organizations who intended to restructure the loan and sell or rent the property back to the original homeowner at a lower price. The 2012 state law forbids banks and lenders from refusing to consider offers from legitimate buyback programs solely because the property will be resold to the former homeowner. The judge dismissed the lawsuit agreeing with the FHFA, conservator of the GSEs, that the Housing and Economic Recovery Act of 2008 (HERA) allows the FHFA to enforce restrictions under its conservatorship mandate authorized by Congress. Further, the judge noted that “Congress, by enacting HERA’s Anti-Injunction Clause, expressly removed such conservatorship decisions from the courts’ oversight.” The State is expected to appeal the decision.
Nevada Supreme Court Holds Foreclosure Of A Homeowners Association’s Assessment Lien Extinguishes A First Mortgage
On September 18, the Nevada Supreme Court decided that a homeowners association may foreclose its assessment lien non-judicially and that the foreclosure extinguishes a first mortgage. SFR Investments Pool v. US Bank (130 Nev. Adv. Opinion 75, September 18, 2014). The lender argued that, because the “superlien” law gives an HOA lien priority over a first mortgage to the extent of nine months of unpaid dues, only nine months of unpaid dues should have priority over a first mortgage, not the entire assessment lien. The Nevada Supreme Court acknowledged competing views of “payment priority” and “lien priority” proponents, but ultimately sided with the lien priority camp because of the language of the superlien statute and general principles of lien priority. The Court suggested that lenders may prevent losses associated with HOA superliens by paying off the liens or by establishing escrow accounts for HOA assessments to avoid using its own funds. The Nevada decision is consistent with an August 28 decision on the same issue by the D.C. Court of Appeals in Chase Plaza Condominium Association v. JP Morgan Chase Bank, No. 13-CV-623 & 13-CV-674 (D.C. Cir. 2014).
On September 16, the NYDFS announced that they have issued subpoenas to nine “hard money” lenders, groups that originate short-term, high interest loans secured by a borrower’s home or other real estate, as part of a probe into whether such lenders are intentionally structuring loans with the expectation of foreclosing on the property. NYDFS noted that “[w]hile many hard money lenders may be engaged in legitimate financial activities, certain unscrupulous companies appear to be taking advantage of borrowers in tough financial straits by making loans that are designed to fail.” The NYDFS’s investigation is focused on whether the nine lenders are intentionally structuring hard money loans with onerous terms, such as high interest rates, numerous upfront fees, and enormous balloon payments, so that borrowers are driven into to default.
(Chase Plaza Condominium Association, Inv. V. JP Morgan Chase Bank, No 13-CV-623 & 13-CV-674, decided August 28, 2014). In a case of first impression, the District of Columbia Court of Appeals held that a condominium association’s foreclosure of a lien for unpaid assessments extinguished the first mortgage on the unit. The District of Columbia’s condominium “super-priority lien” law (created in 1991) grants super-priority to condominium association liens for up to six months of unpaid assessments. The super-priority lien law does not specify what happens when the condominium association forecloses and the proceeds of the sale are insufficient to pay the first deed of trust. The Court of Appeals looked to general foreclosure law for guidance, finding that foreclosure of a lien with superior priority extinguishes liens with lower priority. Here, the $280,000 purchase money first mortgage was made in 2005, the owner’s assessments became delinquent in 2008, the association foreclosed its $9415 assessment lien in 2010, and the bidder at the foreclosure sale paid $10,000 for the property. The mortgagee sued to have the foreclosure set aside. The Court reasoned that the drafters of the super-priority lien law “understood that foreclosure of a super-priority lien could extinguish a first mortgage … but expected that mortgage lenders would take the necessary steps to prevent that result, either by requiring payment of assessments into an escrow account or by paying assessments themselves to prevent foreclosure,” and rejected the lender’s argument that permitting foreclosure of condominium assessment liens to extinguish first mortgages would be unreasonable as a matter of policy.
On August 26, Illinois amended its Code of Civil Procedure by adding Section 15-1603.5 to address situations where a foreclosure sale occurred, but a junior lienholder was not named in the foreclosure complaint. Specifically, the law permits a holder of a certificate of sale who discovers an omitted subordinate interest to file a strict foreclosure complaint naming the person who has the omitted subordinate interest as the defendant. Unless the defendant objects, the court must enter a judgment extinguishing the omitted subordinate interest. If the defendant objects, the court must hold a hearing and order either (i) that the defendant has not agreed to pay the redemption amount, in which case the court must enter judgment; or (ii) that the defendant has agreed to pay the redemption amount. The law also sets forth the items that must and must not be included in the redemption amount, and provides that the defendant has 30 days after the entry of the order to pay the redemption amount. Although the person who has an omitted subordinate interest does not have a right to file a strict foreclosure action, the person does maintain the right to claim surplus proceeds from the foreclosure sale.
On August 6, the Minnesota Supreme Court held in a foreclosure-related case that the plausibility standard announced in Twombly and Iqbal does not apply to civil pleadings in Minnesota state court. Walsh v. U.S. Bank, N.A., No. A13-0742, 2014 WL 3844201 (Minn. Aug. 6, 2014). A borrower sued her mortgage lender to vacate the foreclosure sale of her home, claiming the lender failed to properly serve notice of the non-judicial foreclosure proceeding. The bank moved to dismiss the suit based on the plausibility standard established by the U.S. Supreme Court in Twombly, which requires plaintiffs to plead “enough facts to state a claim to relief that is plausible on its face.” The Minnesota Supreme court held that the state’s traditional pleading standard is controlling, and not the federal standard established in Twombly. The court explained that under the state standard, “a claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.” The court identified five reasons the state rule applies: (i) the relevant state rule does not clearly require more factual specificity; (ii) the state’s rules of civil procedure express a strong preference for short statements of facts in complaints; (iii) the sample complaints attached to the rules show that short, general statements are sufficient; (iv) the rules allow parties to move for a more definite statement if a pleading is overly vague; and (v) there are other means to control the costs of discovery.
On July 23, the CFPB, the FTC, and 15 state authorities coordinated to take action against foreclosure relief companies and associated individuals alleged to have employed deceptive marketing tactics to obtain business from distressed borrowers. The CFPB filed three suits, the FTC filed six, and the state authorities collectively initiated 32 actions. For example, the CFPB claims the defendants (i) collected fees before obtaining a loan modification; (ii) inflated success rates and likelihood of obtaining a modification; (iii) led borrowers to believe they would receive legal representation; and (iv) made false promises about loan modifications to consumers. The CFPB and FTC allege that the defendants violated Regulation O, formerly known as the Mortgage Assistance Relief Services (MARS) Rule, and that some of the defendants also violated the Dodd-Frank Act’s UDAAP provisions and Section 5 of the FTC Act, respectively. The state authorities are pursuing similar claims under state law. For example, New York Attorney General Eric Schneiderman announced that he served a notice of intent to bring litigation against two companies and an individual for operating a fraudulent mortgage rescue and loan modification scheme that induced consumers into paying large upfront fees but failed to help homeowners avoid foreclosure.
On July 23, HUD issued Mortgagee Letter 2014-16, which requires FHA mortgagees to retain electronic copies of certain foreclosure-related documents and extends the record retention period to seven years after the life of an FHA-insured mortgage. HUD advises that, in addition to any requirements for retaining hard copies or original foreclosure-related documents, loss-mitigation review documents also must be retained in electronic format. Those documents include: (i) evidence of the servicer’s foreclosure committee recommendation; (ii) the servicer’s Referral Notice to a foreclosure attorney, if applicable; and (iii) a copy of the document evidencing the first legal action necessary to initiate foreclosure and all supporting documentation, if applicable. The letter adds that mortgagees also must retain in electronic format a copy of the mortgage, the mortgage note, or the deed of trust. If a note has been lost, mortgagees must retain both an electronic and hard copy of a Lost Note Affidavit. The letter is effective for all foreclosures occurring on or after October 1, 2014.
On July 10, HUD issued Mortgagee Letter 2014-15, which updates requirements for pre-foreclosure sales (PFS) and deeds-in-lieu (DIL) of foreclosure for all mortgagees servicing FHA single-family mortgages. The letter explains that if none of FHA’s loss mitigation home retention options are available or appropriate, the mortgagee must evaluate the borrower for a non-home retention option, with mortgagors in default or at imminent risk of default being evaluated first for a PFS transaction before being evaluated for a DIL transaction. The letter details eligibility and documentation requirements for standard PFS, streamlined PFS, and DILs, as well as rules for calculating cash reserve contributions for standard PFS transactions. Further, the letter advises mortgagees that they may, under certain conditions, approve a servicemember for a streamlined PFS or DIL without verifying hardship or obtaining a complete mortgagor workout packet. The letter also addresses numerous other topics, including: (i) requirements for real estate agents and brokers participating in PFS transactions; (ii) an initial listing period requirement for PFS transactions; (iii) updated sample language for the PFS Addendum; (iv) validation requirements for appraisals; (v) the criteria under which the HUD will permit non-arms-length PFS transactions; and (vi) minimum marketing period for all PFS transactions.
On July 15, Freddie Mac issued Bulletin 2014-14, which announced a new automated settlement process for mortgage modification settlements. Effective December 1, 2014, servicers must submit the required settlement data for a modification of a conventional first lien Freddie Mac-owned or guaranteed mortgage via the new “Loan Modification Settlement” screen in Workout Prospector. Servicers may begin doing so on or after August 25, 2014. In addition, the Freddie Mac is amending mortgage modification signature requirements to provide that a servicer and any borrowers can agree to extend, modify, forbear, or make any accommodations with regard to a Fannie Mae/Freddie Mac Uniform Security Instrument or the Note, as otherwise authorized by Freddie Mac, without obtaining the co-signer’s signature or consent on the condition that the Security Instrument that was signed by the co-signer contained a provision allowing for such action. The bulletin also, among other things, (i) updates transfer of ownership and assumption requirements; (ii) revises certain requirements for mortgages insured by the FHA or guaranteed by the VA or Rural Housing Service; and (iii) adds several new expense codes related to attorney fees and costs and updates certain attorney fees and costs reimbursement requirements.
On June 16, Massachusetts Attorney General (AG) Martha Coakley announced that a large mortgage servicer agreed to provide $3 million in borrower relief and pay $700,000 to the Commonwealth to resolve allegations that the servicer failed to provide certain notices to homeowners, as required by state law, and that it unlawfully foreclosed on certain properties. Specifically, the AG alleged that the servicer failed to send state-mandated notices to homeowners in default, and failed to execute proper mortgage assignments, filed in the Massachusetts Registry of Deeds, as required by Massachusetts law. The agreement also resolves claims that a servicer acquired by the settling servicer allegedly initiated foreclosures when it did not hold the actual mortgages, a violation of Massachusetts law, as established by a 2011 state supreme court decision. As described in the AG’s announcement, the agreement requires the servicer to properly execute documents filed in connection with foreclosure proceedings, and to mail to residents notices that are in compliance with applicable statutes and regulations.
Recently, Colorado enacted legislation that requires servicers of residential loans, including lenders and other parties that offer a borrower a loss mitigation option or seek to enforce the power to foreclose and sell the residential real estate that secures a delinquent loan, to establish a single point of contact with a borrower. The bill obligates the single point of contact to inform the borrower about loss mitigation options, the status of the borrower’s loan, circumstances that may result in foreclosure, and procedures to submit a notice of error or information request. Further, the bill prohibits the servicer from initiating foreclosure proceedings unless the borrower has not qualified for, accepted, or complied with the terms of a loss mitigation option. The bill provides that if a servicer is engaging in prohibited “dual tracking,” the public trustee must follow certain procedures, including continuance of the foreclosure sale and withdrawal of the notice of election and demand, provided so the borrower is complying with all applicable terms of a loss mitigation option. In addition, the bill requires a foreclosing lender to disclose that it is illegal for a foreclosure consultant to require a deposit or charge fees in advance for providing services, and requires that the posted notice include a statement regarding the borrower’s ability to file a complaint with state and federal authorities if the borrower believes the lender or servicer has violated certain provisions of the bill. The bill takes effect January 1, 2015.
On June 3, Connecticut Governor Dannel Malloy signed HB 5514, which establishes an alternative to the state’s current foreclosure methods. Under current law, a court may issue a judgment of foreclosure by sale or strict foreclosure. Under the new law, which takes effect October 1, 2014, a court will be permitted to approve a foreclosure sale on the open market provided the lender requests such a sale and the borrower consents. The new method is available only for a first mortgage on a one-to-four family residential property that is the borrower’s principal residence. The bill establishes industry procedures for such sales (including requirements for the foreclosure notice, property appraisal, listing agreement, and purchase and sale contract, and requires foreclosure notices to advise borrowers of the market sale option), as well as judicial procedures. The new law prohibits a borrower who consents to foreclosure by market sale from participating in the state’s foreclosure mediation program, but grants such a borrower the right to petition the court to participate under certain circumstances.