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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

U.S. Economy

January 10, 2022 By Marc Dann

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]

Filed Under: Attorneys, CFPB, Consumer Fraud, Foreclosure, Founding Partner, In the News, Managing Partner, Mortgage Fraud, RESPA Tagged With: Consumer Fraud, deceptive practices, Foreclosure Defense, Loan Modification, Mortgage Fraud, RESPA, U.S. Economy

October 3, 2021 By Marc Dann

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
[email protected]

Filed Under: CFPB, Covid-19, Foreclosure, Founding Partner, In the News, Mortgage Fraud, Property seizure Tagged With: Covid-19, Foreclosure Defense, Loan Modification, Marc Dann, Mortgage Fraud, U.S. Economy

August 24, 2021 By Marc Dann

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 [email protected]

Filed Under: Covid-19, Founding Partner, Managing Partner Tagged With: Coronavirus, Covid-19, Federal unemployment benefits, Marc Dann, U.S. Economy

August 18, 2021 By Marc Dann

Lawyers from DannLaw and Advocate Attorneys LLP will continue the legal battle to force Governor Mike DeWine to accept federally funded supplemental unemployment insurance benefits today in the Tenth District Court of Appeals.  The hearing in the case, Bowling et al v. DeWine et al will begin at 1:00 PM and may be viewed here: (3) Ohio Tenth District Court of Appeals – YouTube.

The DannLaw/Advocate Attorneys legal team filed the lawsuit in Franklin County Common Pleas Court shortly after the governor and Matt Damschroeder, Director of the Ohio Department of Jobs and Family Services, announced that the state would terminate Ohio’s participation in the Federal Pandemic Unemployment Compensation (FPUC), Pandemic Unemployment Assistance (PUA), and Pandemic Emergency Unemployment Compensation (PEUC) programs on June 26, 2021. The plaintiffs argue that Ohio Revised Code Section ORC 4141.43(I) requires the state to accept the benefits and that DeWine and Damschroeder lacked the legal authority to cut them off.

On July 29 Franklin County Common Pleas Court Judge Michael Holbrook denied the plaintiff’s request for a writ of mandamus that would force the state to restore the $300 a week supplemental benefits through September 6, the sunset date set by the Biden Administration. The plaintiffs are asking the Tenth District Court to reverse the trial court’s decision and order the state to immediately restore the federally funded benefits. The brief may be viewed here: Bowling Candy 2021 07 30 Appellate Brief

Former Ohio Attorney General and DannLaw founder Marc Dann was set to argue the case, but he is now in quarantine after testing positive for COVID-19 despite having been vaccinated earlier this year. “My situation illustrates the fact that COVID-19 remains a serious threat to the health and financial well-being of Ohioans,” Dann said. “While I am fortunate enough to be able to work from home, many Ohioans, including our clients in this case, simply cannot. That is why we are fighting to force the governor to rescind his callous and politically motivated decision to terminate benefits people need to survive during the ongoing crisis.”

Andrew Engel, who will present the plaintiff’s case, noted that although the policy considerations and practical impact of DeWine’s decision are important, the Bowling case raises two purely legal issues: May the State refuse to participate in the FPUC for its entire term and did the Governor possess the authority, by himself, to terminate Ohio’s participation in the FPUC program? “If the answer to either of these questions is ‘no,’ then we believe the Court must reverse the trial court and order the state to restore the benefits,” Engel concluded.

For more information please contact Marc Dann at 216-373-0539 or [email protected]

Filed Under: Founding Partner, In the News, Managing Partner Tagged With: Coronavirus, Covid-19, Marc Dann, U.S. Economy

July 6, 2021 By Marc Dann

Marc Dann and Brian Flick of DannLaw, one of the nation’s leading consumer protection law firms and Attorney Andrew Engel of Advocate Attorneys, LLP, today filed suit in Cuyahoga County Common Pleas Court to force Governor Mike DeWine and Matt Damschroeder, Director of the Ohio Department of Jobs and Family Services to rescind their decision to terminate Ohio’s participation in the Federal Pandemic Unemployment Compensation (FPUC), Pandemic Unemployment Assistance (PUA),  Pandemic Emergency Unemployment Compensation (PEUC) programs. The first hearing in the case has been set for July 21, 2021 at 1:30 P.M. before Judge Michael P. Shaughnessy in Courtroom 16 C in the Cuyahoga County Justice Center, 1200 Ontario St, Cleveland, OH.

DeWine and Damschroder announced on May 13, 2021 that the federally-funded benefits would be cutoff on June 26, 2021. Ohio is one of 27 states governed by Republicans that decided to terminate the benefits early.

“Along with jeopardizing the personal and financial well-being of Ohioans who are struggling to recover from the pandemic, DeWine and Damschroder’s callous and politically-motivated decision to terminate the federal benefits represents a willful and blatant violation of Ohio law,” Brian Flick said.

According to the lawsuit, Ohio Revised Code Section ORC 4141.43(I) requires Damschroder to

“…cooperate with the United States department of labor to the fullest extent…[and] take such action…as may be necessary to secure to this state and its citizens all advantages available under the provisions of the “Social Security Act” that relate to unemployment compensation…”

The mandamus action asks the Cuyahoga County Common Pleas Court to:

  • Declare Governor Dewine and Director Damschroder to be in violation of their statutory duties under R.C. 4141.43(I) by terminating Ohio’s participation in PUA, PEUC, and FUPC benefits as of the week of June 26, 2021;
  • Enjoin Dewine, Damschroder, their officers, employees, and agents, from withdrawing the State of Ohio from unemployment benefits offered through the CARES Act;
  • Order Dewine and Damschroder to immediately notify the United States Department of Labor of Ohio will participate in the programs for their duration;
  • Issue a peremptory writ of mandamus requiring the Defendants’ perform their statutory duties required by ORC 4141.43(I) and immediately take all action necessary to reinstate Ohio’s participation in all federal unemployment insurance benefit available from the United States Department of Labor.

DannLaw and Advocate Attorneys are also seeking a Temporary Restraining Order and Preliminary Injunction enjoining Dewine and Damschroder from denying Ohioans

the right to receive FPUC benefits.

The mandamus action may be viewed here: Bowling Candy 2021 07 06 First Amended Complaint TO FILE

The motion for a temporary restraining order may be viewed here: Bowling Candy 2021 07 05 Motion for TRO Final

Similar suits have been filed in three other states: Indiana, Maryland, and Texas. On June 25 Indiana Superior Court Judge John Hanley ruled that the state must continue paying the benefits and said “Indiana law recognizes the importance of these benefits. Indiana law requires the State to accept these benefits.” Court action is pending in Maryland and Texas.

“Indiana’s statutory language is very similar to Ohio’s,” Atty. Dann noted. “We believe we are right on the law an absolutely right as it relates to public policy that protects the interests of the people of the state of Ohio.”

For more information, please contact Atty. Marc Dann at 216-373-0539 or by emailing [email protected]

Filed Under: Attorneys, Class Action Lawsuit, Covid-19, Founding Partner, In the News Tagged With: Coronavirus, Marc Dann, U.S. Economy

March 7, 2021 By Marc Dann

A lot has changed since we posted our last update. A new president is in the White House, mortgage forbearance programs and foreclosure moratoriums have been extended by the federal government, a $1.9 trillion stimulus package is working its way through Congress, millions of Americans have been vaccinated against the coronavirus and the entire U.S. population may be inoculated by early summer.

For the first time in a very long time, there is light at the end of the COVID tunnel.

Unfortunately, that light could become an oncoming train for homeowners who make unwise or incorrect decisions when forbearance and foreclosure relief programs sunset in the months ahead. To help ensure that the end of the pandemic doesn’t mark the beginning of a nightmare for people pummeled by the virus, I’ll discuss the aid programs that are now available, how to take advantage of them, and then outline steps families should take now to secure their financial future.

FORECLOSURE MORATORIUMS

Let’s start by taking a look at the foreclosure landscape.

I’m pleased to report that there is some good news for borrowers whose mortgages are backed or owned by the federal government. The moratorium on foreclosures imposed by the Federal Housing Administration (FHA), Veterans Administration, the U.S. Department of Agriculture (USDA), Fannie Mae, and Freddie Mac will remain in effect until June 30, 2021.

While the extensions provide much-needed breathing space for homeowners who were in or were about to be in foreclosure when the pandemic struck, I must emphasize that the bans are temporary reprieves, not pardons. Mortgage servicers will begin processing judicial and non-judicial foreclosures the minute the moratoriums are lifted.

The news isn’t anywhere near as good for homeowners with loans that are not government-backed. While some states have enacted eviction and/or foreclosure moratoriums that protect borrowers whose mortgages are held by private lenders, many, including Ohio, have not. That means foreclosure is a very real and imminent threat—especially as courts in more and more jurisdictions resume normal operations.

Whether you are now protected by a federal or state moratorium or are involved in an active foreclosure proceeding, now is the time to contact experienced legal counsel like the attorneys at DannLaw for advice.

We have helped thousands of families save their homes by negotiating affordable loan modifications and utilizing groundbreaking legal strategies that stop or soften the impact of foreclosure.

We also perform a thorough review of every client’s mortgage history and case file to determine if their servicer or lender made mistakes or committed violations of federal or state consumer protection laws. Those errors and violations often enable us to defeat the foreclosure claim and recover substantial monetary damages from lenders that can put families on the path to financial security.

To learn more about our innovative and highly effective foreclosure defense strategies schedule a free consultation by completing our contact form or sending us a direct message on Facebook. But don’t delay, every day you wait could bring you one day closer to losing your home.

Forbearance

Before I dig into the details about the current state of forbearance relief, please keep this oft-repeated phrase in mind:

Forbearance is NOT forgiveness.

As I have noted in every one of our COVID updates, borrowers will be required to make the principal, interest, and escrow payments that have been deferred when their forbearance period ends. No one, not President Biden, members of Congress, nor the CEOs of major lenders and servicers has ever so much as hinted that these costs will be forgiven. That means homeowners will, at some point, be on the hook for thousands of dollars in arrearages.

That said, here is an overview of the relief programs that are available and applicable deadlines.

Borrowers with FHA, VA, or USDA loans have the right to request up to 12 months of forbearance in two six-month increments. The deadline to apply for an initial 180-day forbearance period has been moved from March 31, 2021 to June 30, 2021.

In addition, the agencies are also providing two extensions of up to three months each for homeowners who paused payments on or before June 30, 2020. The extensions will give homeowners nearing the end of their maximum 12-month forbearance period extra time to recover from financial hardships caused by the pandemic. Borrowers who qualify must apply for the additional time no later than June 30, 2021.

Homeowners with Fannie Mae/Freddie Mac loans are eligible for up to 12 months of forbearance. At this point, the agencies have not set a deadline to apply for an initial 180-day forbearance period.

Like the FHA, VA, and USDA, Fannie and Freddie are also giving borrowers approaching the end of their maximum forbearance period more time to resume making payments.  Homeowners who entered forbearance on or before February 28, 2021 may now request an additional three months of relief.

With due apologies to Shakespeare, we’ve arrived at the point in the update where I must say: To forbear or not to forbear, that is the question. Although every situation is different, here are some broad guidelines that will help borrowers with government-backed loans determine if they should enter, remain in, or avoid forbearance:

  • While forbearance is not a perfect solution, it is far better than foreclosure. That is why struggling homeowners should take advantage of the available relief programs. If you are in forbearance and are unable to resume making your mortgage payments stay in until you are back on your feet. If you are not in forbearance but need to be, contact your lender, and apply ASAP.
  • If you are in forbearance but can now afford to make your mortgage payments, it’s time to plan and execute an exit strategy. Staying in longer than necessary will needlessly increase the amount of deferred principal, interest, and escrow you owe moving forward.
  • Borrowers who have been and can continue to make their mortgage payments should avoid forbearance like the plague.

Deciding how to settle the balances accrued during forbearance is just as important as choosing whether to enter the program and when or if to leave. While the specific plans offered by each agency differ, in general, the following four options are available. It is important to note that FHA, VA, USDA, Fannie and Freddie are prohibited from requiring borrowers to make lump sum payments of the amounts due.

Repayment plan. This option enables borrowers to pay the balance due by increasing their mortgage payment for a few months.

Deferral or partial claim. This option allows homeowners who can resume making their regular payments but can’t afford more to move missed payments to the end of their loan or put them in a subordinate lien repayable only when they refinance or sell their home or terminate their mortgage.

Loan modification. Borrowers who can no longer afford their pre-pandemic mortgage payment can negotiate a loan modification. The amount owed in deferred principal, interest, and escrow will be rolled into the loan. The monthly payment will probably drop, but the term or the principal balance of the mortgage may increase.

Lump-sum reinstatement. An option to consider for borrowers who have the financial wherewithal to pay back missed payments all at once.

Your mortgage servicer should reach out to you 30 days before your forbearance period ends to discuss your options. Here are two important points to ponder:

First, remember, you cannot be forced to make a lump sum payment. If that is the only option offered by the servicer, ask them about the other plans they offer.

Second, each repayment option is complicated and carries risk. Don’t think for a minute that your servicer is looking out for your best interests. In many cases the opposite is true. That is why you should consult with DannLaw before leaving forbearance. We will work with you to devise an exit strategy that protects you and your family and helps secure your financial future.

Things are even more complicated and risky for homeowners whose mortgages are held by private lenders. 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 if you choose to leave or they decide to end your forbearance period. In addition, it is highly likely that any repayment options they offer will be designed to maximize their profit at your expense.

DannLaw’s experienced legal team knows how to deal with and hold private lenders accountable. If you have a private mortgage, don’t hesitate 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.

Finally, I want to remind everyone that forbearance is not automatic. You must always contact your lender or servicer and ask to defer your payments and you must make the request no later than the deadlines I’ve listed in this update.

If you have any questions about forbearance, foreclosure, or other consumer credit or lending issues, do not hesitate to contact us. We are here to help.

Thank you for taking the time to read this update. Be well, and take heart, we’ve come a long way together and I’m confident better days are just ahead.

Filed Under: Covid-19, Foreclosure, Founding Partner, In the News Tagged With: Consumer Fraud, Coronavirus, Foreclosure Defense, Loan Modification, Marc Dann, RESPA, U.S. Economy

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