Tag: Deontos

Ninth Circuit Appeals Court Ruling for Hawaii – Foreclosure Sale Avoided for Lack of Public Announcement

Ninth Circuit Appeals Court Ruling for Hawaii – Foreclosure Sale Avoided for Lack of Public Announcement

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Deontos for this one.  The bankruptcy court ruled the foreclosure was invalid.  The Bankruptcy Appellate Panel reversed.  The US Court of Appeals for the Ninth Circuit affirms “the bankruptcy court’s avoidance of the foreclosure sale.”  This ruling is FOR PUBLICATION.

Excerpt

We hold that (1) the lack of public announcement did violate Hawaii’s nonjudicial foreclosure statute, and (2) this defect was a deceptive practice under state law. Accordingly, we affirm the bankruptcy court’s avoidance of the foreclosure sale. However, we remand to the bankruptcy court for a proper calculation of attorneys’ fees and damages under HRS § 480-13.

Download the ruling here:  http://dtc-systems.net/wp-content/uploads/2012/03/9th_Circuit_Hawaii_For_Publication_No_Advertisement_and_Foreclosure_Invalid.pdf

in RE Crawford – No Chapter 13 Payments Required

in RE Crawford – No Chapter 13 Payments Required

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Deontos for this case.  The property is not underwater and the debtor has agreed to pay all claims upon sale of the property in a reasonable time.  Until the property is sold, no payments will be made on the loan.  Plan approved by the bankruptcy judge.

Excerpt 1

The central question in this case is whether a Chapter 13 plan is confirmable where (a) the plan provides for payment in full of a first-mortgage lienholder upon sale of real property in which a debtor has substantial equity, but (b) where the debtor fails to provide for regular payments during the life of the plan. Put another way, may a debtor’s plan be confirmed where the debtor makes no regular payments through the plan, but, instead, makes payment, in full, to all creditors – secured an unsecured – upon sale of her real property under the plan, which property is valued far in excess of all creditors’ claims – secured and unsecured. Continue reading “in RE Crawford – No Chapter 13 Payments Required”

Texas Homeowner Survives Motion to Dismiss Against Bank of America

Texas Homeowner Survives Motion to Dismiss Against Bank of America

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Deontos for this ruling.  Homeowners in Texas survive motion to dismiss in Swim vs. Bank of America et. al.

Excerpt 1:

Defendants represented to Plaintiffs that they would not foreclose during the loan modification process—but they did. Therefore, since Defendants foreclosed during the loan modification process without contacting Plaintiffs to inform them that their trial modification had been rejected, Plaintiffs state a claim for breach of contract.

Excerpt 2: 

Section 392.304(a)(19) prohibits a debt collector, in debt collection or obtaining information concerning a consumer, from using a fraudulent, deceptive, or misleading representation or deceptive means to collect a debt or obtain information concerning a consumer. Plaintiffs allege BOA representatives informed Plaintiffs they had provided the required documents and that it would not foreclose during the loan modification process, that BOA and/or BAC repeatedly required documents Plaintiffs already provided, and that BAC foreclosed on the Property during the loan modification process, despite representations that it would not, because Plaintiffs allegedly did not provide documents Plaintiffs claim they provided. The Court finds that such facts state a claim under TDCPA § 392.304(a)(19), and Defendants’ Motion to Dismiss this claim under that section of the TDCPA is thus DENIED. Continue reading “Texas Homeowner Survives Motion to Dismiss Against Bank of America”