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Second Circuit Court of Appeals ruling in Ocwen/PHH case is major victory for homeowners, landmark decision will expand, strengthen RESPA, Regulation X protections

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Ocwen logo
Ocwen/PHH: The bad guys who tried to steal Riad Ghosheh’s home. Nearly 12,000 consumers have lodged complaints about the company with the CFPB.

In 2010 Kim Naimoli of Geneva, New York who was struggling to make her mortgage payments in the wake of the 2007-2008 collapse of the housing market, applied for a loan modification under the provisions of the federal Home Affordable Modification Program (HAMP). Over the next six years Ms. Naimoli did everything right: she completed and returned forms, complied with document requests, made her house payments on time, and, in accordance with the law, filed a “Notice of Error” (NOE) when Ocwen the company that was servicing her loan made mistakes.

During that same period Ocwen, now known as PHH, did everything wrong. The company failed to register mortgage documents, refused to abide by the terms of the loan modification agreement it had approved, did not acknowledge or respond to correspondence from Ms. Naimoli or her legal counsel, began refusing to accept her mortgage payments, revoked the loan mod agreement, and rejected an NOE requesting that the firm correct its blatant errors.

In 2017 DannLaw, one of the nation’s leading consumer protection law firms, sued Ocwen/PHH on Ms. Naimoli’s behalf in the Federal District Court for the Western District of New York alleging the company had committed multiple violations of the federal Real Estate Sales Practices Act (RESPA). In April of 2020 Judge Elizabeth A. Wolford granted the company’s motion for summary judgement and dismissed the case.

DannLaw immediately appealed and, in what DannLaw founder and former Ohio Attorney General Marc Dann hailed as a major victory for homeowners, the United States Court of Appeals for the Second Circuit reversed Judge Wolford and held that Ocwen/PHH had indeed violated the law. According to Dann the decision, handed down on January 7, 2022, will have wide-ranging impact on the mortgage servicing industry because the New York City-based Second Circuit is one of the most influential courts in the federal judicial system.

The significance of the case is underscored by the fact that the judges asked the Consumer Financial Protection Bureau to a file a brief after oral argument. In the brief the CFPB essentially supported DannLaw’s position.

Javier Merino, leader of the DannLaw team that litigated the case said Ocwen/PHH never denied engaging in the conduct that nearly cost Ms. Naimoli her home. “The record is clear: the company made numerous errors, would not correct them, and then used their mistakes as justification for walking away from the loan mod they had previously approved,” he said. “Once we got them into court, they contended that because their admitted misdeeds were related to the denial of the loan mod and not mortgage servicing they weren’t covered by RESPA. Fortunately, the Second Circuit saw through that specious argument and ruled in our favor.” The decision may be viewed here.

“Ocwen/PHH is perennially ranked among the worst mortgage servicers in the U.S. so I’m certainly not surprised that their bad acts served as a catalyst for this landmark decision,” Marc Dann noted. “I find it both incredibly satisfying and ironic that the company’s persistent and willful violations of the law will strengthen and expand the protections offered by RESPA and benefit homeowners who are too often abused by the mortgage servicing industry.”

Dann said the case, which took years to move through the courts, demonstrates the importance of RESPA’s fee-shifting provisions which balance the legal playing field. “Contingency fee arrangements ensure that homeowners like Ms. Naimoli have the opportunity to seek and secure justice and receive the financial compensation they need and deserve,” he said. “They enable plaintiff’s law firms like ours to stand toe-to-toe with and defeat the white shoe law firms that represent the financial services industry case after case, year after year.”

Dann also said the case illustrates why borrowers must document in writing and preserve all communications and interactions they have with lenders. “The records Ms. Naimoli retained, including delivery receipts and originals and copies of all correspondence, allowed us to present clear and convincing evidence of Ocwen/PHH’s conduct to the Court. The value of those records and the role they played in our victory cannot be understated.”

For more information please contact Marc Dann at 216-373-0539 or email mdann@dannlaw.com

End of mortgage support programs brings day of reckoning for homeowners in forbearance/foreclosure, DannLaw is here to help

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DannLaw founder Marc DannAs the new year begins nearly all the mortgage support programs implemented in response to the Covid 19 pandemic are coming to an end. That means millions of homeowners who have taken advantage of mortgage forbearance must begin making their house payments again. Many are finding it difficult to secure permanent loan modifications or repayment plans, some are about to lose their homes because the foreclosure moratoriums imposed by the Consumer Finance Protection Bureau (CFPB) have been lifted, and others are unable to make mortgage payments  because advance Child Tax Credit payments ended abruptly  just as a new wave of COVID-19 infections began sweeping across the nation.

The mortgage and foreclosure experts at DannLaw are already helping hundreds of homeowners deal with the challenges we described above. If you or someone you know is leaving forbearance, attempting to negotiate a loan modification with a lender, facing foreclosure, or having difficulty making mortgage payments please contact us at once to arrange a no-cost, no-obligation consultation.

It is important to contact experienced attorneys like the members of the DannLaw legal team because loan mods and foreclosure proceedings are extremely complicated areas of the law. Last week Whitney Horton, Brian Flick, Dan Solar and I shared our expertise and strategies with more than 200 lawyers from across the U.S. As we prepared our presentation, we identified numerous problems borrowers are confronting as they deal with lenders and servicers:

  1. OH Foreclosure TimelineMortgage loan servicers often provide inaccurate and/or incomplete information about the loss mitigation options available to borrowers leaving forbearance or seeking loan modifications.
  2. The CFPB has developed and implemented specific rules and procedures designed to protect homeowners with federally-backed loans, i.e. those issued by the FHA, VA, USDA or owned by Freddie Mac or Fannie Mae, who are exiting forbearance. Unfortunately, some servicers are ignoring the rules and pushing borrowers to accept options that offer less favorable terms or are easier for the lender to implement. This deplorable practice puts borrowers at risk of entering into a repayment plan that isn’t right for them.
  3. Servicers may seek exceptions to the above-mentioned rules in certain circumstances.
  4. Servicers are misrepresenting the rights of borrowers whose FHA, VA, USDA, Fannie Mae or Freddie Mac loans have been sold to new, private investors.
  5. The incompetence of mortgage company staff combined with the mail delivery problems that are plaguing the U.S. Postal Service have caused some borrowers to miss first payment deadlines established under reinstatement or loan modification agreements through no fault of their own.
  6. Some mortgage servicers are adding unjustified/unwarranted fees and charges to mortgage loan balances.
  7. People attempting to contact servicers by phone are placed on hold for hours. When they do manage to speak to a staff member, they often receive inconsistent or incorrect information.
  8. Mortgage companies are not completing their work within the 30-day time limit established under the CFPB rules.
  9. Mortgage companies have initiated foreclosures against borrowers in violation of Federal Dual Tracking prohibitions.

While the CFPB offers extensive online resources, borrowers who attempt to deal with servicers on their own are at a serious disadvantage. Accepting the wrong loan modification or repayment plan could put your home and your family’s financial future at risk. Fortunately, you don’t have to go it alone: the experienced attorneys at DannLaw are here to help.

Whether you are ready to exit forbearance or are now facing foreclosure, we are just a phone call or email away. To arrange a free consultation call 216-373-0539 or complete and submit our contact form.

Stay well, stay safe, and Happy New Year to you and yours.

Andrew Wolf, widely respected consumer protection, class action plaintiff’s attorney, joins DannLaw legal team

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Atty. Andrew Wolf AnnouncementDannLaw founder and former Ohio Attorney General Marc Dann announced today that Attorney Andrew Wolf of North Brunswick, New Jersey has become an “Of Counsel” member of DannLaw’s Consumer Protection and Class Action Litigation Practice groups. Wolf, who has earned a reputation as one of the nation’s most effective consumer advocates will be based in DannLaw’s New Jersey/New York office.

“Andrew Wolf’s impressive level of experience, skill, and knowledge will significantly enhance our ability to both fight for middle and working-class families and to handle the influx of cases that will be generated in the coming months as millions of Americans exit mortgage forbearance and the federal foreclosure moratorium sunsets,” Dann said. “We could not have picked a better time to add a talented attorney with Andy’s level of expertise in individual and class action consumer protection law to our outstanding team.”

Wolf, who has resolved hundreds of individual consumer protection cases and been named Class Counsel in more than 135 state and federal class actions since entering private practice 24 years ago, said he eagerly seized the opportunity to join the team of attorneys that has pioneered the use of the nation’s most complex laws to secure justice for consumers and hold corporate wrongdoers accountable for their actions.

“When I opened my first office in 1997, I wrote down a simple mission statement – I am going to be a consumer protection attorney whose goal is to help as many people as possible who have been ripped off or taken advantage of in some way,” Wolf said. “I knew that if I did that I would make a decent living. After accomplishing that goal for 24 years and helping tens of thousands of consumers along the way, my new goal is to continue doing that good work at DannLaw.”

“Our familiarity with and respect for Andrew’s body of work along with the synergies that existed between our two firms served as the catalyst for the discussions that resulted in our teaming up,” Dann said. “I’m confident our new relationship will benefit Andrew, DannLaw, and our existing and future clients while causing nothing but headaches for unscrupulous lenders, scam artists, and corporate miscreants of all types. Andrew and I wouldn’t have it any other way.”

Andrew Wolf’s biography may be viewed here.

DannLaw COVID-19 Update 15

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DannLaw founder Marc DannAs America struggles to shake the curse of COVID-19, millions of homeowners impacted by the pandemic continue to face numerous challenges, including determining what to do when mortgage forbearance ends. In this update, we’ll outline the available options and offer sound advice on how–and how not–to proceed.

Before we discuss the options available to homeowners already in forbearance, we want to share some breaking news as well as a reminder. The US Department of Housing and Urban Development just announced that it has indefinitely extended the deadline for borrowers with FHA loans to enter forbearance. The window for new applications was to close on Thursday, September 30, 2021.
The FHA’s decision brings the agency in line with Fannie Mae and Freddie Mac which have not set deadlines for initial applications. If you are not in forbearance but are struggling to make your house payment due to the pandemic and have an FHA or Fannie or Freddie-backed mortgage we urge you to take advantage of the opportunity to apply. If you have doubts or questions about what to do  please reach out Attorney Whitney Horton whorton@dannlaw.com.
We also want to remind borrowers currently in forbearance that a number of extensions are available, but remember, extensions are not granted automatically. You must apply. For more information visit the CFPB forbearance information center.
That’s what’s new regarding initial forbearance and applications. Now we’ll take a look at the numerous and complicated options available to the nearly 2,000,000 homeowners who are preparing to resume making their mortgage payments.
As we’ve noted on numerous occasions, forbearance is not forgiveness. At some point, and that point is rapidly approaching for borrowers who paused payments early in the pandemic, homeowners will be responsible for missed payments, taxes, and other fees. That means now is the time to plan and execute an exit strategy based on the options that are available to borrowers whose loans are backed by the government which include repayment plans, deferral or partial claims, loan modifications, and lump sum reinstatements.
An explanation of each option may be found in our August 2021 update and the terms differ depending on whether the mortgage is insured by the Federal Housing Administration (FHA), The Veterans Administration (VA) the U.S. Department of Agriculture (USDA) or is owned by Fannie Mae, Freddie Mac, or Ginnie Mae.
While we are glad that so many options are available, each is extremely complicated. Making the wrong choice can lead to devastating consequences, up to and including foreclosure. For that reason, we strongly suggest that you seek legal advice as you consider your options.
Homeowners whose mortgages are held by private lenders are especially at risk at the end of forbearance. If you are in forbearance, please stay in regular contact with your servicer because they have the ability to change the terms of your plan at any time. They can also require you to make a lump sum payment when forbearance ends. In addition, it is highly likely that any repayment options they offer will be designed to maximize their profit at your expense.
Whether you have a government-backed or private mortgage (or just don’t know) , the experienced DannLaw/Advocate Attorneys legal team is here to help. We invite you to contact us to arrange a free consultation so we can assess your situation and help ensure that your home and your finances don’t become victims of the pandemic.
Unfortunately, as often happens in crisis situations, the nation is being overrun by con men engaged in loan modification scams. If a company or individual makes promises that seem too good to be true, they probably are. Don’t put your financial security and your home at risk. Please seek help from reputable law firms–and remember, we regularly sue and recover damages from charlatans who bilk consumers. If you believe you are the victim of consumer fraud contact us right away.
Important notice about foreclosures.
The federal government’s foreclosure moratorium ended on July 31, 2021. Under new rules issued by the Consumer Financial Protection Bureau, foreclosure actions may proceed if the borrower:
  • Has abandoned the property.
  • Was more than 120 days behind on their mortgage before March 1, 2020.
  • Is more than 120 days behind on their mortgage payments and has not responded to specific required outreach from the mortgage servicer for 90 days
  • Has been evaluated for all options other than foreclosure and it is determined that foreclosure is unavoidable.
While foreclosure proceedings may begin, foreclosure is not necessarily a done deal. DannLaw’s experienced foreclosure defense attorneys have helped hundreds of families save their homes and their financial futures. We know how to use the law to protect borrowers and to hold lenders who violate the rules accountable.
If you were in foreclosure when the moratorium went into effect last year or believe your servicer or lender is about to begin proceedings to take your home, do not delay, contact DannLaw today to arrange a no-cost, no-obligation foreclosure defense consultation.
If you even suspect that a foreclosure will be initiated or reinstated Do not delay, contact us TODAY!  Click here to schedule an in-person, video conference, or telephone appointment or call us at 877-475-8100
Thanks for taking the time to read this important update. Be well, stay safe, and as always feel free to contact us should you have questions or need our help.
Sincerely,
Marc Dann
DannLaw
dannlaw.com
877-475-8100
intake@dannlaw.com

Department of Labor to States: Ask and ye shall receive, DannLaw to Ohio: Ask Already

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DannLaw founder Marc DannThe DannLaw/Advocate Attorneys LLP legal team leading the battle to force Governor Mike DeWine to restore federally funded supplemental unemployment benefits he is callously denying hundreds of thousands of Ohioans devastated by the COVID-19 pandemic that is now raging through the state, have once again asked him to reconsider his ill-advised decision. In a letter to Attorney General David Yost, Marc Dann calls attention to an email that signals the U.S. Department of Labor’s willingness to restore FPUC benefits to states including Ohio that rescinded them earlier

In the letter, Dann states the DOL’s position provides an opportunity for the governor to both abide by the Ohio law that requires the state to accept all available federal unemployment compensation benefits and eliminate the possibility that the state could be on the hook for as much as $900 million if it continues to turn down the federal dollars:

“This would mean the Governor could follow the law as enumerated in the 10th District Opinion and the state would be completely indemnified by the Federal Government for the payment of the benefit in question in the pending litigation. Should the Federal Government’s position change in the future and should we be successful in our efforts on behalf of our clients the State of Ohio would be at risk for potentially up to $900 Million.”

“We believe we will eventually win–indeed we have already won in the 10th District Court of Appeals and Franklin County Common Pleas Court–and that Ohioans who desperately need the supplemental benefits to pay for housing, food, clothing, utilities, and other necessities of life, will be paid,” Dann said. “The critical question for the state is ‘who pays?’ the federal government which has already set aside the money and is willing to send it to us, or the state which will have to find nearly a billion dollars to meet this obligation. The feds have made it clear that all the governor has to do to access the money is ask. He should ask today.”

In the email referenced in the letter to AG Yost, Jim Garner, Administrator of the Employment and Traning Administration’s Office of Unemployment Insurance notifies all states that suspended  FPUC payments that the DOL is both prepared to fund benefits on a retroactive basis and assume all administrative costs:

The Department will consider a request to rescind that is submitted in writing and signed by the Governor or their appointed designee. Should the Department agree to having a termination notice be rescinded, the state will need to continue to accept applications and issue payments as if there had been no effective termination. Further, following an accepted rescission, all weeks of unemployment after the earlier termination will be covered under the state’s previously signed implementing agreement and all administrative and benefit costs will be federally funded.

“The Governor is never going to get a better deal for the people of this state,” Dann said. “He needs to say ‘yes’ to the $900 million in federal dollars that will both provide relief to families ravaged by COVID and strengthen Ohio’s economy. The clock is ticking and the meter is running. He needs to call the DOL and ask for the check.”

Legal team fighting to restore federally funded UI benefits scores major victory in Court of Appeals, arguments will resume Friday in Franklin County Common Pleas Court

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The legal team of DannLaw and Advocate Attorneys LLP scored an important victory today when the Tenth District Court of Appeals ruled that Franklin County Common Pleas Court Judge Michael Holbrook erred when he denied the firms’ request for an order that would force the state to restore federally funded supplemental unemployment insurance benefits cut off by Governor DeWine in May. The decision may be viewed/downloaded here: Appeals decision

In a 2-1 decision Judges Michael Mentel and Terri Jamison denied the state’s motion to dismiss the case and sent it back to Judge Holbrook for further proceedings. According to former Ohio Attorney General and DannLaw founder Marc Dann, an evidentiary hearing has been set for Friday at 9:00 A.M. in Courtroom 5B located in the Franklin County Government Center, 345 South High Street, Columbus, OH.

“We are obviously pleased by the ruling and excited to have the opportunity to continue fighting to restore these much-needed benefits,” Andrew Engel of Advocate Attorneys LLP said. “Throughout this state thousands of people have been crushed by the pandemic and the situation is growing worse as the Delta variant spreads across Ohio. The impact of the Governor’s callous, politically motivated decision to rescind the benefits has been devastating and it should be reversed as quickly as possible.”

“While we are more than ready to continue to argue the case in court, we urge the Governor to contact the Biden Administration and ask for the benefits to be restored retroactively,” Dann said. “Not only would that be the right thing to do from a legal, moral, and ethical standpoint, it makes sense economically because it would immediately pump tens of millions of dollars into the coffers of Ohio businesses and the pockets of their employees. That means restoring the supplemental payments would help the unemployed who desperately need them and the state as a whole.”

DannLaw’s Brian Flick noted that after the state of Indiana lost a similar lawsuit, officials asked for and received retroactive benefits. “If Governor DeWine makes the request, I’m confident the Biden Administration will say ‘yes’ and the federal dollars will begin flowing. The Governor should end the legal wrangling and make the request today.”

For more information please contact Marc Dann at 330-651-3131 or email mdann@dannlaw.com