Questions and Answers

Questions and Answers

4 Actions Against Notaries and Their Role in Foreclosures

There is such a thing as Notary Abuse: when the notary does not obey the rules of the state where she has been licensed. I have seen notaries from one state notarize a document that was signed by a person who works in another state. There seems to have been a lot of notary abuse during the recession. These involved in many cases homes that were in foreclosure. The foreclosures involved a lot of assignments that were notarized. Whether they were notarized in a fraudulent manner is worthy of investigation. Notaries are required to have bonds to insure the public against notary abuse. The amount of these bonds vary from state to state. If a person feels that there has been notary abuse or fraud, they can file a claim against the bond for their damages. They can also sue the notary. They can file a complaint with the Secretary of State. And finally they can report it to the police.

Each state has rules that the notary must follow. For example here is a section of the California rules:

Secretary of State, Disciplinary Guidelines 2012

VIOLATION OF GOVERNMENT CODE SECTION 8214.1(e):

Adjudged Liable for Damages in Any Suit Grounded in Fraud, Misrepresentation, Violation of State Regulatory Laws or Failure to Discharge Fully and Faithfully the Duties of a Notary Public:

A notary public applicant or commissioned notary public adjudged liable for damages in a case involving fraud, misrepresentation, violation of state regulatory laws or failure to fully and faithfully discharge the duties of the office is in direct conflict with the most fundamental requirements of the office of a notary public. …

(2) If a commissioned notary public is adjudged liable for damages in any suit grounded in fraud, misrepresentation or violation of state regulatory laws or failure to discharge fully and faithfully the duties of a notary public, the recommended action is: Revocation of the commission.

Example 1: A judgment entered against a notary public in a civil action in which the notary public performed a fraudulent notarial act, such as executing an acknowledgment without requiring the signer to appear in person before the notary public.

 

Example 1 seems to be the violation that is most common in foreclosure proceedings. Of course, there could also be fraud if the document is signed by someone other than the notary licensed under a particular seal.

It therefore appears that a person who is a victim of such fraud could do one or more of the following:

File a complaint with the Secretary of State;

File a lawsuit against the notary;

File a claim against the notary’s bond;

File a complaint with the police.

Proving that a notary committed fraud in fulfilling his/her duties could go a long way in proving that there was a wrongful foreclosure of a property.

If you have any questions about this or any legal issue, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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7— a way to get out of debt — How Bankruptcy Works

 

 One of the primary purposes of bankruptcy is to discharge certain debts to give an honest individual debtor a “fresh start.” The debtor has no liability for discharged debts. In a chapter 7 case, however, a discharge is only available to individual debtors, not to partnerships or corporations.

A chapter 7 case begins with the debtor filing a petition with the bankruptcy court.  In addition to the petition, the debtor must also file with the court: (1) schedules of assets and liabilities; (2) a schedule of current income and expenditures; (3) a statement of financial affairs; and (4) a schedule of executory contracts and unexpired leases. Debtors must also provide a copy of the tax returns for the last three years. They must file: a certificate of credit counseling; evidence of payment from employers, if any, received 60 days before filing; a statement of monthly net income and any anticipated increase in income or expenses after filing; and a record of any interest the debtor has in federal or state qualified education or tuition accounts.

The courts must charge a $245 case filing fee, a $75 miscellaneous administrative fee, and a $15 trustee surcharge. Normally, the fees must be paid to the clerk of the court upon filing. If a joint petition is filed, only one filing fee, one administrative fee, and one trustee surcharge are charged. Debtors should be aware that failure to pay these fees may result in dismissal of the case.

In order to complete the Official Bankruptcy Forms that make up the petition, statement of financial affairs, and schedules, the debtor must provide to his/her attorney the following information:

  1. A list of all creditors and the amount and nature of their claims;
  2. The source, amount, and frequency of the debtor’s income;
  3. A list of all of the debtor’s property; and
  4. A detailed list of the debtor’s monthly living expenses, i.e., food, clothing, shelter, utilities, taxes, transportation, medicine, etc.

Filing a petition under chapter 7 “automatically stays” (stops) most collection actions against the debtor or the debtor’s property. But filing the petition does not stay certain types of actions listed under 11 U.S.C. § 362(b), and the stay may be effective only for a short time in some situations. The stay arises by operation of law and requires no judicial action. As long as the stay is in effect, creditors generally may not initiate or continue lawsuits, wage garnishments, or even telephone calls demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to all creditors whose names and addresses are provided by the debtor.

Between 21 and 40 days after the petition is filed, the case trustee will hold a meeting of creditors. During this meeting, the trustee puts the debtor under oath, and both the trustee and creditors may ask questions. The debtor must attend the meeting and answer questions regarding the debtor’s financial affairs and property. 11 U.S.C. § 343. If a husband and wife have filed a joint petition, they both must attend the creditors’ meeting and answer questions.

The Chapter 7 Discharge

After the meeting of creditors, the court will make a decision as to whether there should be a discharge. A discharge releases individual debtors from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, debtors should consult competent legal counsel before filing.

 

If you need to file a bankruptcy, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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BANK OF AMERICA TO PAY $46,000,000

 

Bank of America was ordered to pay a $46 million judgment last week after it wrongfully foreclosed on a California couple during the recession.

The order by Sacramento bankruptcy court Judge Christopher M. Klein describes in detail how the bank improperly engaged and foreclosed on Erik and Renee Sundquist’s Lincoln residence.

The judge awarded $1 million in actual damages to the couple. Klein gave the rest of the sum to outside entities focused on consumer law and education. The trouble began in 2009 when the Charlotte, N.C.-based bank reportedly asked the couple to default on the loan in order to obtain a mortgage modification. But the bank did not honor that promise.

At that point, the Sundquists filed for Chapter 13 bankruptcy, which triggered a stay on the foreclosure process. The bank disregarded the stay and started eviction proceedings. “Without identifying themselves, they staked out the premises, tailed the Sundquists, knocked on doors, knocked on windows, and rang doorbells, all to the terror of the Sundquist family,” Klein wrote in a 109-page opinion for the ruling.

Bank of America eventually gained possession of the property for six months, after which it then agreed that the foreclosure had been a mistake. The company returned the keys to the Sundquists. When they re-entered their home, the major appliances had been removed and the lawn was dead, according to the court.

“Throughout, the Sundquists were acting in good faith, not realizing that Bank of America had no intention of acting in good faith,” Klein wrote.

 

If you need further help with this or any other issue, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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OCWEN OFF THE HOOK—-UNTIL THE NEXT TIME

Ocwen Financial Corporation (OCN) announced a comprehensive settlement and termination of the January 2015 Consent Order between Ocwen Loan Servicing, LLC and the State of California Department of Business Oversight (DBO), without admitting any wrongdoing.

Under this settlement, the DBO will lift its restriction on Ocwen’s ability to acquire mortgage servicing rights associated with California properties, and will terminate the engagement of the independent  auditor, which had been in place under the prior Consent Order.

In addition, Ocwen has agreed to pay a cash settlement of $25 million to the DBO. Ocwen will also provide an additional $198 million in debt forgiveness through loan modifications to existing California borrowers over a three year period.

Ocwen Financial Corporation is a financial services holding company which, through its subsidiaries, originates and services loans. They are headquartered in West Palm Beach, Florida, with offices throughout the United States and in the U.S. Virgin Islands and operations in India and the Philippines.

If you need further help with this or any other issue, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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California Expungement Services

California expungement, record sealing, and other post-conviction relief proceedings can be complicated depending on the facts of the original case and if the District Attorney objects.

Expungement, which is often called a 1203.4 Dismissal, is a form of post-conviction relief that is initiated by the filing of a motion with the court that convicted the person. The motion asks the judge to reopen the case, review the content of the motion— as well as any evidence that is submitted, and take away the finding of guilt and dismiss the court case.

Expungement

If you received probation, you are most likely eligible for an expungement. This is true if your offense was a misdemeanor or a felony.  DUI convictions are also eligible for expungement.

Felony Expungement

As mentioned above, if you have a case that resulted in a felony conviction, for which you were sentenced to probation, the best option is usually an expungement. However, if the felony resulted in time served in state prison, expungement is not an option, but you could be eligible for a Certificate of Rehabilitation

Certificate of Rehabilitation

If the case was a felony that resulted in time being served in state prison, a Certificate of Rehabilitation, pursuant to Penal Code 4851, will likely be an option. Obtaining a Certificate of Rehabilitation will create an automatic application for a pardon from the governor, and open you up to potential professional licenses that were previously unavailable.

Felony Reduction

If you have a felony on your record, you could be able to get that case reduced to a misdemeanor on your record. Many felony cases that ended in probation can be reduced to misdemeanors pursuant to Penal Code section 17(B). Reducing a felony to a misdemeanor restores firearm rights that were lost because of that conviction.

Probation Termination

If a person is still on probation, it is possible to return to court and ask the judge to end the probation sentence. Once the probation is terminated, the person can usually request that the record be expunged.

Arrest Sealing

If you were arrested in California and the arrest did not result in a conviction or some form of diversion program, then your arrest is probably eligible for an arrest record sealing pursuant to Penal Code section 851.8. To get an arrest record sealed, the judge must find that “no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.”

Additional Sealing Services

  • Drug diversion sealing is available if you were involved in a drug diversion program that was successfully completed.
  • Juvenile record sealing may be available if the record was from when you were under eighteen years old.
  • Juvenile set aside is available for many who were sentenced to and honorably discharged from the California Youth Authority (CYA).

If you need further assistance with this or any other legal issue, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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Here is the Appellate Decision on Wells Fargo Inspection Case

8th Circ. Affirms $8.6M Fees Grant In $26M Wells Fargo Deal

by Suevon Lee …The Eighth Circuit on Thursday affirmed the awarding of $8.6 million in attorneys’ fees to class counsel arising out of a $25.7 million settlement with Wells Fargo in December 2015 over the bank’s policy of ordering property inspections, saying the fee grant was not unreasonable.
A three-judge panel ruled on an appeal brought by three objectors to the class settlement who claimed the district court abused its discretion in calculating attorneys’ fees based on one-third of the gross settlement amount, rather than the lower net settlement fund, which deducts costs and settlement administration fees.

The chosen method of calculation, the objectors contend, resulted in the class receiving more than $1 million less than it otherwise would have, with the remainder primarily benefitting lawyers and Wells Fargo.

The appeals court, however, disagreed with that assessment, saying the trial court was not out of bounds in arriving at the fees amount based on the nature of the litigation and that, besides, the amount and its proportion to the settlement are in line with other awards in the circuit.

“Because the amount of attorneys’ fees was not unreasonable, we conclude that the court did not abuse its discretion,” wrote Judge Raymond W. Gruender for the panel.

The appeal comes out of the seven-year case involving Wells Fargo and its policy of ordering and charging for automatic property inspections on delinquent homeowners behind in mortgage payments. The class claimed that Wells Fargo violated the Racketeer Influenced and Corrupt Organizations Act through this policy.

In December 2015, seven years after the case was filed, the class and the bank reached a $25.7 million settlement believed to impact about 2.7 million homeowners affected by Wells Fargo’s policy.

After class counsel requested one-third of the total settlement fund in attorneys’ fees, three class members filed objections based on the method of calculation.

U.S. District Judge Robert W. Pratt granted final approval of the settlement, including of the $8.6 million in fees, without addressing the objections. That prompted the objectors’ appeal to the Eighth Circuit, led by Steven Buckley.

In his appellate brief, Buckley pointed out that the administration costs were “not negligible,” at $3.25 million. He argued that a more proper valuation of attorneys’ fees would have been to base the percentage off the net fund, to reach a figure of $7.4 million.

But Thursday’s panel said Buckley and fellow objectors Jennifer Deachin and Julius Dunmore Jr. failed to show that this $3.25 million in costs were “unjustifiable.”

It also agreed with the district judge that a one-third cut of fees overall was appropriate, based on time and work required, inability of plaintiffs’ counsel to do other work while involved in this case, the contingent nature of the fee, results obtained and experience and ability of the attorneys.

Plus, the award is “in line with other awards in the Eighth Circuit,” the panel wrote, saying the courts have often awarded attorneys’ fees rising up to 36 percent in class actions.

An attorney for the objectors and a representative for the class didn’t immediately return a request for comment on Thursday.

Circuit Judges Lavenski R. Smith, Raymond W. Gruender and Bobby E. Shepherd sat on the panel. …

The case is Edward Huyer et al. v. Steven Buckley, case number 16-1681, in the U.S. Court of Appeals for the Eighth Circuit.

 

Note from Linda Fessler: The case can be appealed to a higher court. It remains to be seen if it will be appealed.

 

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