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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

Mortgage Fraud

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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 [email protected]

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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.

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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 [email protected].
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.brmcstaging.com
877-475-8100

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On Tuesday, April 27, the Consumer Financial Protection Bureau announced that Mr. Cooper/Nationstar has been withdrawing multiple mortgage payments from the bank accounts of hundreds of thousands of consumers without authorization.
If your mortgage is serviced by these companies and your payments are automatically withdrawn from your bank account, you MUST do two things NOW:
Contact your bank to determine if your account has been debited for multiple payments.
If you are a victim of the Mr. Cooper/Nationstar ripoff, contact Marc Dann and DannLaw immediately at [email protected] or 877-475-8100 or dannlaw.brmcstaging.com/contact so we can begin protecting you, your family, and your finances.
These unauthorized withdrawals can cause serious problems for victims of the Mr. Cooper/Nationstar ripoff:
  • Checks written on affected accounts may be returned NSF.
  • Automatic withdrawals from the account for auto loans, utilities, and other consumer debts may be denied.
  • Banks may charge large, multiple overdraft fees.
  • Credit scores will be negatively impacted by late or denied payments.
We have launched a full scale investigation of Mr.Cooper/Nationstar’s actions and intend to fight to secure justice and just compensation for victims. Contact us TODAY!
Check our Facebook page and dannlaw.brmcstaging.com for updates and more information.

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I was Ohio’s Attorney General when the fraud-driven collapse of the housing market documented in “The Con” began. I’m proud to say that my office was at the forefront of the effort to hold the big banks, predatory lenders, rating agencies, mortgage brokers, stock and bond speculators, brokerage firms, real estate appraisers and others who ignited the near-collapse of the global economy accountable for their actions.

The things I learned as we investigated the mortgage industry were extremely disturbing and distressing. We discovered the home mortgage, which had for decades been the very foundation of the American dream, had become the cornerstone of a multi-trillion dollar racket run by charlatans, scam artists, and cheaters who gleefully used deceit and trickery to prey upon and ruin working and middle-class families.

While their behavior was deplorable, I was even more outraged by the fact that the regulators responsible for protecting the American people had turned a blind eye to the scam that was taking place under their noses and then refused to prosecute any of the criminals once it blew up.

I founded DannLaw in response to the government’s utter failure to protect and seek justice for homeowners and consumers. For more than a decade, DannLaw has filled the void left by regulators and prosecutors who refuse to do their jobs. We have used the law and the civil justice system to help thousands of families save their homes and to force banks, mortgage servicers, and other cheaters to play by the rules and compensate our clients.

I urge you to watch “The Con” which is fascinating and infuriating and to remember that we at DannLaw are here to do the job the regulators won’t.

You can register for the August 5 free Virtual live premiere of The Con here: https://www.thecon.tv/event

I hope you will join me for this important event.

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Marc Dann - Marc Dann Consumer Fraud & Foreclosure Defense AttorneyA lot has happened since we issued our first COVID-19 on March 13. In our tenth update we’ll take a look at recent developments, discuss impending challenges and opportunities, issue a couple warnings, and dispense some sage advice…

Involuntary Forbearance can threaten your financial future

Let’s start with a cautionary tale about involuntary mortgage forbearance. As we’ve said repeatedly, while it can be a lifesaver for people who are facing financial disaster as a result of the pandemic, forbearance is NOT forgiveness. Homeowners will eventually have to make the interest, principal, and escrow payments they have been delaying.

In addition, forbearance may jeopardize court-approved bankruptcy repayment plans and could make it difficult to buy a new home or refinance an existing loan. That’s why we urged homeowners to think carefully before taking advantage of the forbearance programs made available by the CARES Act and many private lenders.

Unfortunately, a number of banks and servicers didn’t give borrowers a choice. Back in May we warned that a number of banks and mortgage servicers were putting homeowners into forbearance by “mistake.” One of the offenders, and I’m sure this will shock no one, was Wells Fargo. According to a CNBC report, borrowers who called servicers seeking information about forbearance and other relief programs were put into forbearance without their consent by swamped call center workers.

At that time we doubted that Wells, perennial winner of the worst bank in the world award, was really doing this by accident. Turns out we were right. NBC News reported on July 16 that Wells was purposely placing borrowers into forbearance without seeking or receiving their permission.

The story focused on Troy Harlow of Buchanan, Virginia who filed personal bankruptcy in 2017 after a kidney transplant put him on permanent disability. Troy never missed a house payment because his primary goal was to stay in his home.

Wells Fargo
Wells Fargo is among the banks and servicers who have placed borrowers into forbearance without their consent.

That didn’t matter to Wells. Without his knowledge or permission, on April 29 the bank told the bankruptcy court overseeing Harlow’s payment plan that he had asked to pause his mortgage payments because he had been hurt by COVID-19. Harlow who never even thought about asking to be placed in forbearance continued to forward the full amount owed on his mortgage to Wells.

Harlow’s attorneys soon learned that he wasn’t the only victim. Wells had played the same dirty trick on homeowners in 11 states.

That news set off alarm bells here at DannLaw and led us to launch an investigation to determine if borrowers in Ohio and New Jersey have been scammed by Wells and other lenders. With that in mind, we’re asking homeowners to do two things:

First, contact your lender to determine if they have placed you in forbearance without your permission.

Second, if they have you should contact us right away so we can help rectify the problem and determine if we should file a class-action suit on behalf of every borrower who has been abused by Wells and other lenders. You can reach us by calling 216-373-0539 or filling out and submitting our contact form. Please do this right away because involuntary forbearance can cause real problems for years to come.

Is it time to take your loan out of forbearance?

If you chose to place your loan in forbearance, it’s time to start thinking about an exit strategy. If you haven’t been able to make payments because you lost your job or were laid-off when the COVID-19 crisis cratered the economy but are now back to work you should consider taking your loan out of forbearance before the amount of delayed interest, principal, and escrow you owe becomes unmanageable.

To determine if you should begin making your house payment again, consider the amount you owe on your home relative to its value. If your home is worth more than your mortgage balance it is an asset that you should protect. If it is worth less than you owe it is a liability so your mortgage payment should be viewed as a housing cost and compared to alternatives like paying rent. You should also evaluate other factors including the state of the housing market in your neighborhood, the company that owns your loan, and whether you intend to sell your house sometime in the next few years.

The moratorium on foreclosures is about to end

OH Foreclosure TimelineThe moratorium on foreclosures imposed at the beginning of the COVID-19 crisis are coming to an end in some Ohio counties and will lapse for federally backed mortgages at the end of August. That means sheriff’s sales will resume soon.

If you were in foreclosure when the pandemic struck you should contact your attorney right away. If you have not retained a lawyer contact us to arrange a no-cost consultation so we can review your case and discuss ways we may be able to help save your home. To learn more about the options available to you click here to visit the Foreclosure Defense page on Dannlaw.com.

Evictions set to resume

Dann Law Firm - Foreclosure DefenseToday it is estimated that more than 8 million Americans, including tens of thousands of Ohioans, are behind on their rent payments and may soon be evicted from their homes. This number could rise substantially when the CARES Act’s Pandemic Unemployment Insurance payments sunset at the end of July.

While distressing, the situation is not hopeless if renters and landlords communicate with each other and work together to overcome the challenges caused by the pandemic. Here are some important steps to take:

    1. Renters should communicate in writing with their landlords about their ability to pay, partially pay, or not pay rent. Both renters and landlords are trapped in a dilemma they did not cause, so landlords may be willing to work out payment arrangements. No one benefits from a vacant apartment.
    2. Check this list to determine if your landlord has a federally backed mortgage and is therefore prohibited from evicting tenants. If you are a landlord with a federally backed mortgage you may apply for forbearance if your tenants are unable to pay their rent. The eviction moratorium/forbearance program will end in late August unless Congress extends it.
    3. If you reach an agreement with your landlord regarding late or partial payments put it in writing. We will soon post a form on our website that will make it easy to create written versions of tenant/landlord agreements.
    4. Do not ignore letters or emails you receive from a court and always attend hearings when ordered. While there are legal defenses available to renters and strict procedures that must be followed before a landlord can evict a tenant, ignoring notices and/or failing to appear just about guarantees that your belongings are going to end up on the street.
    5. Retain legal counsel. If you cannot afford an attorney call your local legal aid office. As a service to people impacted by COVID-19, we are making DannLaw’s Cleveland and Cincinnati offices available if you need a computer or internet access to participate in a virtual eviction hearing. A member of our legal team will also be on hand to answer general questions about evictions.
    6. I and Jeff Watson, General Counsel to a number of real estate investor groups will conduct a virtual seminar for landlords and tenants on Thursday, July 23 at 8:00 P.M. This informative session, titled, “The Eviction Tsunami: Facts and Strategies that Lawyers, Landlords and Tenants Must Know,” will feature a discussion of the growing eviction crisis as well advice and strategies that will help landlords avoid insolvency and tenants escape homelessness. To register for the seminar click here.

Collection firms are up to their old (dirty) tricks

While debt collectors are typically shameless, there has been noticeable slow-down in activity since the onset of the COVID-19 crisis in March.  But as states take steps to restart their economies and courts begin to reopen, we’ve received reports that collection lawyers, debt buyers and creditors are ramping up operations.  That means debtors must be on the lookout for and pay close attention to any legal notices they receive.

As we noted in our discussion about evictions, the quickest way to lose a case and have a judgement entered against you is to ignore the problem. Trust me, it’s not going to go away simply because you toss a letter in File 13 or don’t show up for court. So please, respond in writing to communications you receive and appear in court when ordered.

In addition, you should contact us to arrange a no-cost consultation. We’ll be happy to discuss your situation and your options. We’ll also determine if debt collectors have violated any of the laws and rules that protect consumers. If they have, you may be entitled to financial compensation. Here’s a brief overview of the rules that govern the collections industry:

  • The Fair Debt Collections Act (FDCA). Enacted in 1978, the FDCPAis the most well-known federal consumer protection statute. Its primary purpose is to prevent third-party debt collectors from using abusive, unfair, false, or deceptive practices to collect debts. To put it simply, collectors may not lie to or mislead consumers in the course of attempting to collect a debt. Violators of the Act may be liable for statutory damages, actual damages, and attorney’s fees.
  • Telephone Consumer Protection Act (TCPA) The TCPAlimits the use of automatic telephone dialing systems (ATDS) and artificial or prerecorded voice messages by telemarketers. Since its passage in 1991, the TCPA has been expanded to cover the use of ATDS’s and voice messages by debt collectors and now applies to cell phones if an affected consumer does not have a landline. Under the law collectors may not call a cell phone unless the owner gives consent. That means it’s important for consumers to deny consent verbally during the initial call and then to immediately withdraw consent in writing.

Statutory damages under TCPA range from $500.00 to $1,500.00 per call and may be applied to each and every call made if it is found that a debt collector willfully violated the Act. The ability to “stack” damages serves as an effective deterrent and provides just compensation for consumers who have been victimized by aggressive debt collectors who willfully violate the law.

Check Your Credit Report Weekly

The CARES Act allows you to obtain copies of your credit reports from annualcreditreport.com on a weekly basis. You should take advantage of this opportunity because a number of state unemployment computer systems have sustained massive data breaches.  DannLaw has filed class-action lawsuits in Ohio and Arkansas related to those breaches.

In addition, several provisions of the CARES Act are inconsistent with the Fair Credit Reporting Act. Please reach out to us right away if you notice inaccuracies on your credit report because you can sue credit reporting agencies and entities that furnish information to them if they refuse to correct mistakes.

The Con Premieres August 5

Marc Dann - "The Con" Documentary ScreenshotFinally, I would like to extend a personal invitation for you to join me on August 5 for the premiere of “The Con,” a four-part series about the 2008 fraud and corruption-fueled collapse of America’s housing market. I’m both proud and humbled to say the series highlights the steps I took as Ohio Attorney General and at DannLaw to hold those responsible for the crisis that led to 10,000,000 families losing their homes accountable for their actions.  The series provides a lesson for the risks we face as we hurtle toward a pandemic-related recession.

“The Con,” like all movies being released in the midst of the pandemic, is being released direct to video via independent theatres. To receive your invitation to the free live premiere, click here and then click on “Follow” above the video. If you like The Con on Facebook, you’ll be invited to the free live premiere on August 5. We’ll be posting more news about “The Con” in our blog and on our Facebook page in the weeks to come.