Thursday, November 4, 2010

Northern California Courts Rule in Banking Cases

Several judges have recently released opinions on mortgage law.

In Geist v. OneWest Bank Mortgage, John and Becky Geist sued OneWest Bank Mortgage for foreclosing on their property which they allege violates the Fair Debt Collection Practices Act (FDCPA).  OneWest defends stating that foreclosing on a house is not a debt collection within the meaning of the statute.  Judge Susan Illston noted that the Ninth Circuit has not yet ruled on whether a mortgage foreclosure is a debt collection within the meaning of FDCPA, but numerous district courts have, each of them finding it was not.  See e.g., Aniel v. T.D.
Service Co. (N.D. Cal. Aug. 9 2010) (White, J.).  She dismissed the action with prejudice.
George v. New Century Mortgage invovles a homeowner proceeding pro se who claims she was a victim of predatory lending in violation of the Truth in Lending Act (TILA) and related California state law claims.   Upon receiving service, New Country Mortgage moved to dismiss the action stating that Ms. George never made a tender offer and an allegation of one is necessary to plead a claim to rescind the loan.  Further, it asked for the lis pendens upon the property to be lifted.  Magistrate Harold R. Lloyd recommended that the case be dismissed.

Gutierrez v. Wells Fargo is a consumer class action based on Wells Fargo's method of posting debit card fees.  In the present order Judge William H. Alsup dealt with a number of pending issues in the case.  He found that Wells Fargo's new posting method conformed to his August order.  He found that pre-judgment interest and post judgment interest were inappropriate and he found that punitive damages did not apply because the plaintiffs did not prove fraud by clear and convincing evidence.

Mira v. American Home Mortgage Service involves Alfonso and Carla Mira who this blog previously covered here.  This case appears similar, in that there is a lis pendens on the property that American Home Mortgage would like lifted.  Judge Saundra Brown Armstrong had an excellent explanation of lis pendens:
Federal courts look to state law regarding in matters pertaining to lis pendens.
See 28 U.S.C. § 1964. "A lis pendens is recorded by someone asserting a real property claim, to give notice that a lawsuit has been filed which may, if that person prevails, affect title to or possession of the real property described in the notice." Federal Deposit Ins. Corp. v. Charlton,  (Cal. App. 1993) (citing Cal.Code Civ. Pro. §§ 405.2, 405.4, 405.20). "Its effect is that anyone acquiring an interest in the property after the action was filed will be bound by the judgment.... Once a lis pendens is filed, it clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged." BGJ Assocs., LLC v. Superior Court of Los Angeles, (Cal. App. 1999).
Judge Armstrong granted the motion to expunge the lis pendens and dismissed the lawsuit for failure to prosecute.

No comments:

Post a Comment