Tag: Charles Cox

The Washington Supreme Court Affirms No Bonafide Purchaser Exists For a Failure to Comply with Statutory Requirements of a Non-Judicial Foreclosure Sale

The Washington Supreme Court Affirms No Bonafide Purchaser Exists For a Failure to Comply with Statutory Requirements of a Non-Judicial Foreclosure Sale

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox for this one.

Excerpt

The trial court ruled that despite procedural noncompliance, the purchaser was a BFP under the statute and quieted title in the purchaser. The Court of Appeals reversed, holding that failure to comply with the statutory requirements was reason to set the sale aside and that factually, the purchaser did not qualify as a BFP.  We affirm the Court of Appeals ruling.

Here were the issues the Supreme Court was looking at:

  1. Whether a trustee’s sale taking place beyond the 120 days permitted by RCW 61.24.040(6) warrants invalidating the sale.
  2. Whether, under the circumstances of this case, a borrower waives the right to bring a postsale challenge for failing to utilize the presale remedies under RCW 61.24.130.
  3. Whether a bona fide purchaser can prevail despite an otherwise invalid sale.

Conclusion

The nonjudicial foreclosure proceedings here were marred by repeated statutory noncompliance. The financial institution acting as the lender also appeared to be acting as the trustee under a different name; the lender repeatedly accepted late payments and, at its sole discretion, rejected only the final late payment that would have cured the default; and the trustee conducted a sale without statutory authority. Equity cannot support waiver given these procedural defects and the purchaser’s status as a sophisticated real estate investor or buyer who had constructive knowledge of the defects in the sale.

We conclude the trustee sale was invalid. We affirm the Court of Appeals and remand to the trial court to enter an order declaring the sale invalid and quieting title in Tecca as against Dickinson. We also affirm the Court of Appeals’ decision reversing the trial court’s judgments for rent, costs, and statutory attorney fees in favor of Dickinson.

[bold, italics and underline added by author]

Download the ruling here: http://dtc-systems.net/wp-content/uploads/2012/05/WA-Supreme-Ruling-Albice-v-PremierMortgage.pdf

 

Court Rules Federal “Protecting Tenants in Foreclosure Act” Requires 90 Days before Commencing UD in California

Court Rules Federal “Protecting Tenants in Foreclosure Act” Requires 90 Days before Commencing UD in California

By Daniel Edstrom
DTC Systems, Inc.

Thank you to Charles Cox for this one, who sent out this information posted by April Charney:

The Court found that the bank must serve bona fide tenants a 90-day notice under the PTFA, even if the eviction is based on non-payment of rent (which required only a 3-day notice under state law).  The ruling follows on the heels of a Massachusetts decision with similar reasoning, FNMA v. Vidal.

compliments of :

National Housing Law Project
703 Market Street Suite 2000
San Francisco, CA 94103
415-546-7000 x. 3112
415-546-7007 (fax)

 

Download ruling here:  http://dtc-systems.net/wp-content/uploads/2012/03/stanko.order_.030711.pdf

State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations

State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox and George Christian for locating this indictment.  Each count lists either a forgery or a misdemeanor.  DOCX LLC is named throughout the indictment.  On April 13, 2011 the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Officer of Comptroller of the Currency, and the Office of Thrift Supervision issued a Cease and Desist Consent Order against Lender Processing Services, Inc., DocX, LLC and LPS Default Solutions, Inc. making the following findings:

WHEREAS, in providing document execution services to Examined Servicers, including services that facilitated completing foreclosures, LPS and its employees allegedly:

(a) Executed numerous affidavits and similar sworn statements (collectively, “Affidavits”) making various assertions, such as the ownership of the mortgage note and mortgage (or deed of trust), the amount of principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the Affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such knowledge or review. LPS executed these Affidavits on behalf of Examined Servicers knowing they would be filed in state courts and in connection with bankruptcy proceedings in federal courts; Continue reading “State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations”

Oregon Case Survives BAC Home Loan Servicing Motion to Dismiss

Oregon Case Survives BAC Home Loan Servicing Motion to Dismiss

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox for finding this one.  This is amazing in and of itself since my information indicates that BAC Home Loans Servicing, LP ceased to exist on 7/1/2011.

Excerpt 1:

Second, Defendants argue that the loan modification agreement is subject to the statute of frauds and Plaintiff failed to plead that the loan modification agreement was subscribed by BAC. Under Oregon’s statute of frauds, an “agreement is void unless it… is in writing and subscribed by the party to be charged[.]” Or. Rev. Stat. § 41.580(1). Partial performance may, however, take a contract out of the statute of frauds. Strong v. Hall, 253 Or. 61, 70 (1969);Royer v. Gailey, 252 Or. 369, 373 (1969). Plaintiff’s allegation that BAC accepted partial payments as described under the loan modification agreement for five months is sufficient pleading at this stage to survive Defendants’ argument that the agreement failed to satisfy the statute of frauds. Continue reading “Oregon Case Survives BAC Home Loan Servicing Motion to Dismiss”