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Homeowners, many of whom are facing foreclosures, have begun hiring forensic loan auditors to review their loan documents, and if violations are found, they are hiring attorneys to bring their case against the lenders. At the very least, the homeowners are trying to forestall a foreclosure, push for a loan modification or, at the end of continuum, try to get the loan rescinded.

“The forensic loan review as we know it today came about two years ago, when the mortgage market started to melt down,” explains Jeffrey Taylor, co-founder and managing director for Orlando-based Digital Risk LLC.

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“We go through the important documents – in particular, the applications – TILA disclosure, Department of Housing and Urban Development forms, the note, etc., making sure that everything was disclosed properly to the borrower and that borrowers knew what they were getting into,” says Mostofi. 4.) From the parties’ submissions, it appears no foreclosure sale has yet taken place. [HN2] In evaluating the motion, the court must construe the pleadings in the light most favorable to the plaintiff, accepting as true all material allegations in the complaint and any reasonable inferences drawn therefrom. Furthermore, under the “incorporation by reference” doctrine, the court may consider documents “whose contents are alleged in a complaint and whose authenticity [*1163] no party questions, but which are not physically attached to the [plaintiff’s] pleading.” . Generally, “a defendant’s right to plead ‘recoupment,’ a ‘defense arising out of some feature of the transaction upon which the plaintiff’s action is grounded,’ … See (where plaintiff “received a loan secured by a deed of trust on his property and later defaulted on the mortgage payments to the lender,” he “satisfie[d] the first element of the In re Smith test….”).

“We also look at the borrower’s income to see if everything was properly disclosed. Plaintiffs assert causes of action under Truth in Lending Act, and to quiet title in the Property. To this end, the court may consider the Deed of Trust, Notice of Default, Substitution of Trustee, and Notice of Trustee’s Sale, as sought by U. survives the expiration” of the limitations period.

Homeowners would take the audit findings to their lender or servicer, only to find themselves pretty much as ignored as they were before they made the investment in the audit. Bank first asks the court to dismiss Plaintiffs’ TILA claim by arguing it is “so summarily pled that it does not ‘raise a right to relief above the speculative level …'” (Mot. Plaintiffs have set out several ways in which the disclosure documents were deficient. See (assignee liability lies “only if the violation…is apparent on the face of the disclosure statement….”). Bank argues, Plaintiffs’ TILA claim is procedurally barred. Bank violated requires a “mortgagee, beneficiary or authorized agent” to “contact the borrower in person or by telephone in order to assess the borrower’s [*1166] financial situation and explore options for the borrower to avoid foreclosure.” For a lender which had recorded a notice of default prior to the effective date of the statute, as is the case here, nor its legislative history clearly indicate an intent to create a private right of action. at 8.) Plaintiffs counter that such a conclusion is unsupported by the legislative history; the California legislature would not have enacted this “urgency” legislation, intended to curb high foreclosure rates in the state, without any accompanying enforcement mechanism. While the Ninth Circuit has yet to address this issue, the court found no decision from this circuit [**15] where a (addressing evidentiary support for claim). (FAC P 18.) Plaintiffs’ use of the phrase “refused to explore,” combined with the “Declaration of Compliance” accompanying the Notice of Trustee’s Sale, imply Plaintiffs were contacted as required by the statute. , a “real estate broker” is one who “solicits borrowers, or causes borrowers to be solicited, through express or implied representations that the broker will act as an agent in arranging a loan, but in fact makes the loan to the borrower from funds belonging to the broker.” . See , and references cited therein (noting “several courts have rejected the proposition that defendants are immune from this statute simply because they are not themselves brokers, so long as the defendant has an agency relationship with a broker or was acting as a [**18] broker.”). Plaintiffs’ complaint does satisfy these two requirements. The court grants Plaintiffs 30 days’ leave from the date of entry of this order to file a Second Amended Complaint which cures all the deficiencies noted above. The decision affirms a fee award of more than $80,000 to Bradley Nigh, who claimed Koons Buick Pontiac GM Inc. Despite the cap, the 4th Circuit said, Nigh brought a “successful action” under TILA, receiving the maximum amount allowed by the federal law.

“We found lenders weren’t really reacting to an audit,” says Maddux, adding that lenders and servicers would only react to lawsuits based on audit information. (FAC PP 7, 14.) In particular, Plaintiffs offer that the loan documents contained an “inaccurate calculation of the amount financed,” “misleading disclosures regarding the…variable rate nature of the loan” and “the application of a prepayment penalty,” and also failed “to disclose the index rate from which the payment was calculated and selection of historical index values.” (FAC P 13.) In addition, Plaintiffs contend these violations are “obvious on the face of the loans [sic] documents.” (FAC P 13.) Plaintiffs argue that since “Defendant has initiated foreclosure proceedings in an attempt to collect the debt,” they may seek remedies for the TILA violations through “recoupment or setoff.” (FAC P 14.) Notably, Plaintiffs’ FAC does not specify whether they are requesting damages, rescission, or both under TILA, although their general request for statutory damages does cite TILA’s . In addition, by stating the violations were apparent on the face of the loan documents, they have alleged assignee liability for U. The court concludes Plaintiffs have adequately pled the substance of their TILA claim. To the extent Plaintiffs recite a claim for rescission, such is precluded by the applicable three-year statute of limitations. Bank is liable for monetary damages under this provision because it “failed and refused to explore” “alternatives to the drastic remedy of foreclosure, such as loan modifications” before initiating foreclosure proceedings. On the other hand, the statute does not require a lender to actually modify a defaulting borrower’s loan but rather requires only contacts or attempted contacts in a good faith effort to prevent foreclosure. To take advantage of this exception with respect to U. Although Plaintiffs mention in passing a “broker” was involved in the transaction (FAC P 4), they fail to allege U. (“When notice of rescission has not otherwise been given or an offer to restore the benefits received under the contract has not otherwise been made, the service of a pleading…that seeks relief based on rescission shall be deemed to be such notice or offer or both.”). Plaintiffs’ Second Amended Complaint must be complete in itself without reference to the superseded pleading. Filed under: Case Law, Foreclosure Defense, Legislation, Mortgage Audit, right to rescind, Truth in Lending Act | Tags: forensic loan audit, Predatory Lending Case Law, right to rescind, tila, TILA Case Law, TILA violations, Truth in Lending Act, truth in lending law | A car buyer whose damages under the Truth in Lending Act were slashed by the Supreme Court is nevertheless entitled to attorneys’ fees for that portion of his otherwise “successful action,” the 4th U. pressured him into signing multiple loan documents and purchasing an “alarm silencer” he hadn’t ordered. Congress, which set the $1,000 cap, likewise included the fee-shifting provisions because it believes it is in the best interest of society for big companies to act honestly, Judge Roger Gregory wrote for the appeals court; but unless the injured consumer has hope of having his costs covered by the guilty defendant, he will never bring the case. Filed under: Case Law, Mortgage Audit, Refinance, right to rescind, Truth in Lending Act | Tags: how to stop foreclosure, loan audit, loan document audit, Loan Modification, Mortgage Audit, Mortgage Crisis, Mortgage Default, Mortgage Fraud, Mortgage Law, mortgage litigation, Predatory Lending Case Law, predatory loan, RESPA Case Law, right to rescind, tila, TILA Case Law, TILA violations, Truth in Lending Act, truth in lending law | APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND.

“Every constituent along the way is looking for their own get-out-of-jail-free card,” observes Frank Pallotta, a principal with Loan Value Group LLC of Rumson, N. These might not always be hefty lawsuits, considering they mostly represent individual loan amounts, but they are annoying and the fees to defend the institution from these efforts can mount up very quickly.

In addition, if homeowners are successful in the bids to rescind a loan, the lender has to pay back all closing costs and finance charges. Not everyone appreciates the efforts of the forensic loan auditors working the homeowner side of the business. (DOT at 1.) Plaintiffs obtained the loan through a broker “who received kickbacks from the originating lender.” (FAC P 4.) U. Bank avers that it is the assignee of the original creditor, Accredited Home [**3] Lenders, Inc. “It began with a bunch of entrepreneurial, ex-mortgage brokers who learned how to game the system the first time, then started offering services to consumers to teach them the game,” Digital Risk’s Taylor says. 12.) For the reasons set forth below, the court GRANTS the motion to dismiss. BACKGROUND Plaintiffs purchased their home at 4442 Via La Jolla, Oceanside, California (the “Property”) in January 2006. An audit by itself is not some magical way to make everything go away; it’s just the beginning, adds Dean Mostofi, the founder of National Loan Audits in Rockville, Md. “Any claim for rescission must be brought within three years of consummation of the transaction or upon the sale of the property, whichever occurs first…”). 1.) In addition, “residential mortgage transactions” are excluded from the right of rescission. or equivalent consensual security interest…created…against the consumer’s dwelling to finance the acquisition…of such dwelling.” Thus, Plaintiffs fail to state a claim for rescission under TILA. However, the court notes that if Plaintiffs were successful in their bid to rescind the contract, they would have to return the proceeds of the loan which they used to purchase their Property. A federal jury in Alexandria, Va., awarded Nigh about ,000, or twice the financing charges he had paid, in May 2001. “Borrowers who contact lenders with an audit don’t get too far,” he says. According to the loan documents, the loan closed in December 2005 or January 2006. As for Plaintiffs’ request for damages, they acknowledge such claims are normally subject to a one-year statute of limitations, typically running from the date of loan execution. Bank’s argument on this point persuasive: non-judicial foreclosures are not “actions” as contemplated by TILA. Bank’s choice of remedy under California law effectively denies Plaintiffs the opportunity to assert a recoupment defense. As other courts have noted, TILA contemplates such restrictions by allowing recoupment only to the extent allowed under state law. For these reasons discussed above, Plaintiffs have failed to state a claim under claim because they “do not allege what [**21] money or property they allegedly lost as a result of any purported violation.” (Mot. Bank next offers that Plaintiffs’ mere recitation of the statutory bases for this cause of action, without specific allegations of fact, fails to state a claim. at 10.) Plaintiffs point out all the factual allegations in their complaint are incorporated by reference into their claim. Bank that the pleadings failed to put them on notice of the premise behind Plaintiffs’ In their final cause of action, Plaintiffs seek to quiet title in the Property. Koons appealed to the 4th Circuit, which affirmed, and then to the Supreme Court, which likewise affirmed on liability but capped the TILA damages at

In addition, if homeowners are successful in the bids to rescind a loan, the lender has to pay back all closing costs and finance charges. Not everyone appreciates the efforts of the forensic loan auditors working the homeowner side of the business. (DOT at 1.) Plaintiffs obtained the loan through a broker “who received kickbacks from the originating lender.” (FAC P 4.) U. Bank avers that it is the assignee of the original creditor, Accredited Home [**3] Lenders, Inc. “It began with a bunch of entrepreneurial, ex-mortgage brokers who learned how to game the system the first time, then started offering services to consumers to teach them the game,” Digital Risk’s Taylor says. 12.) For the reasons set forth below, the court GRANTS the motion to dismiss. BACKGROUND Plaintiffs purchased their home at 4442 Via La Jolla, Oceanside, California (the “Property”) in January 2006. An audit by itself is not some magical way to make everything go away; it’s just the beginning, adds Dean Mostofi, the founder of National Loan Audits in Rockville, Md. “Any claim for rescission must be brought within three years of consummation of the transaction or upon the sale of the property, whichever occurs first…”). 1.) In addition, “residential mortgage transactions” are excluded from the right of rescission. or equivalent consensual security interest…created…against the consumer’s dwelling to finance the acquisition…of such dwelling.” Thus, Plaintiffs fail to state a claim for rescission under TILA. However, the court notes that if Plaintiffs were successful in their bid to rescind the contract, they would have to return the proceeds of the loan which they used to purchase their Property. A federal jury in Alexandria, Va., awarded Nigh about $25,000, or twice the financing charges he had paid, in May 2001. “Borrowers who contact lenders with an audit don’t get too far,” he says. According to the loan documents, the loan closed in December 2005 or January 2006. As for Plaintiffs’ request for damages, they acknowledge such claims are normally subject to a one-year statute of limitations, typically running from the date of loan execution. Bank’s argument on this point persuasive: non-judicial foreclosures are not “actions” as contemplated by TILA. Bank’s choice of remedy under California law effectively denies Plaintiffs the opportunity to assert a recoupment defense. As other courts have noted, TILA contemplates such restrictions by allowing recoupment only to the extent allowed under state law. For these reasons discussed above, Plaintiffs have failed to state a claim under claim because they “do not allege what [**21] money or property they allegedly lost as a result of any purported violation.” (Mot. Bank next offers that Plaintiffs’ mere recitation of the statutory bases for this cause of action, without specific allegations of fact, fails to state a claim. at 10.) Plaintiffs point out all the factual allegations in their complaint are incorporated by reference into their claim. Bank that the pleadings failed to put them on notice of the premise behind Plaintiffs’ In their final cause of action, Plaintiffs seek to quiet title in the Property. Koons appealed to the 4th Circuit, which affirmed, and then to the Supreme Court, which likewise affirmed on liability but capped the TILA damages at $1,000. “The idea of the forensic review was to look for a breach of representations and warranties so the investor or servicer could put the loan back to the originator.

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In addition, if homeowners are successful in the bids to rescind a loan, the lender has to pay back all closing costs and finance charges.

Not everyone appreciates the efforts of the forensic loan auditors working the homeowner side of the business. (DOT at 1.) Plaintiffs obtained the loan through a broker “who received kickbacks from the originating lender.” (FAC P 4.) U. Bank avers that it is the assignee of the original creditor, Accredited Home [**3] Lenders, Inc.

“It began with a bunch of entrepreneurial, ex-mortgage brokers who learned how to game the system the first time, then started offering services to consumers to teach them the game,” Digital Risk’s Taylor says. 12.) For the reasons set forth below, the court GRANTS the motion to dismiss. BACKGROUND Plaintiffs purchased their home at 4442 Via La Jolla, Oceanside, California (the “Property”) in January 2006.

An audit by itself is not some magical way to make everything go away; it’s just the beginning, adds Dean Mostofi, the founder of National Loan Audits in Rockville, Md. “Any claim for rescission must be brought within three years of consummation of the transaction or upon the sale of the property, whichever occurs first…”). 1.) In addition, “residential mortgage transactions” are excluded from the right of rescission. or equivalent consensual security interest…created…against the consumer’s dwelling to finance the acquisition…of such dwelling.” Thus, Plaintiffs fail to state a claim for rescission under TILA. However, the court notes that if Plaintiffs were successful in their bid to rescind the contract, they would have to return the proceeds of the loan which they used to purchase their Property. A federal jury in Alexandria, Va., awarded Nigh about $25,000, or twice the financing charges he had paid, in May 2001.

“Borrowers who contact lenders with an audit don’t get too far,” he says. According to the loan documents, the loan closed in December 2005 or January 2006. As for Plaintiffs’ request for damages, they acknowledge such claims are normally subject to a one-year statute of limitations, typically running from the date of loan execution. Bank’s argument on this point persuasive: non-judicial foreclosures are not “actions” as contemplated by TILA. Bank’s choice of remedy under California law effectively denies Plaintiffs the opportunity to assert a recoupment defense. As other courts have noted, TILA contemplates such restrictions by allowing recoupment only to the extent allowed under state law. For these reasons discussed above, Plaintiffs have failed to state a claim under claim because they “do not allege what [**21] money or property they allegedly lost as a result of any purported violation.” (Mot. Bank next offers that Plaintiffs’ mere recitation of the statutory bases for this cause of action, without specific allegations of fact, fails to state a claim. at 10.) Plaintiffs point out all the factual allegations in their complaint are incorporated by reference into their claim. Bank that the pleadings failed to put them on notice of the premise behind Plaintiffs’ In their final cause of action, Plaintiffs seek to quiet title in the Property. Koons appealed to the 4th Circuit, which affirmed, and then to the Supreme Court, which likewise affirmed on liability but capped the TILA damages at $1,000.

“The idea of the forensic review was to look for a breach of representations and warranties so the investor or servicer could put the loan back to the originator.

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In addition, if homeowners are successful in the bids to rescind a loan, the lender has to pay back all closing costs and finance charges.

Not everyone appreciates the efforts of the forensic loan auditors working the homeowner side of the business. (DOT at 1.) Plaintiffs obtained the loan through a broker “who received kickbacks from the originating lender.” (FAC P 4.) U. Bank avers that it is the assignee of the original creditor, Accredited Home [**3] Lenders, Inc.

“It began with a bunch of entrepreneurial, ex-mortgage brokers who learned how to game the system the first time, then started offering services to consumers to teach them the game,” Digital Risk’s Taylor says. 12.) For the reasons set forth below, the court GRANTS the motion to dismiss. BACKGROUND Plaintiffs purchased their home at 4442 Via La Jolla, Oceanside, California (the “Property”) in January 2006.

An audit by itself is not some magical way to make everything go away; it’s just the beginning, adds Dean Mostofi, the founder of National Loan Audits in Rockville, Md. “Any claim for rescission must be brought within three years of consummation of the transaction or upon the sale of the property, whichever occurs first…”). 1.) In addition, “residential mortgage transactions” are excluded from the right of rescission. or equivalent consensual security interest…created…against the consumer’s dwelling to finance the acquisition…of such dwelling.” Thus, Plaintiffs fail to state a claim for rescission under TILA. However, the court notes that if Plaintiffs were successful in their bid to rescind the contract, they would have to return the proceeds of the loan which they used to purchase their Property. A federal jury in Alexandria, Va., awarded Nigh about $25,000, or twice the financing charges he had paid, in May 2001.

,000. “The idea of the forensic review was to look for a breach of representations and warranties so the investor or servicer could put the loan back to the originator.

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