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First DCA Case No.: 1D11-4232 L.T. No.: 2006-CA-001265-XXXX-MA MARILYN G. HARLEY, et al. Appellant / Defendant, v. HSBC BANK, USA, NATIONAL ASSOCIATION, As Trustee For Home Equity Loan Trust Series AE 2005-HE5 Appellee / Plaintiff. _____________________________________/
APPEAL FROM THE FOURTH JUDICIAL CIRCUIT COURT IN AND FOR JACKSONVILLE-DUVAL COUNTY, FLORIDA
AMENDED INITIAL BRIEF OF APPELLANT MARILYN G. HARLEY
APRIL CARRIE CHARNEY, ESQ. JACKSONVILLE AREA LEGAL AID, INC. 126 WEST ADAMS STREET JACKSONVILLE, FLORIDA 32202
TABLE OF CONTENTS Page ii 1 5
TABLE OF CITATIONS STATEMENT OF THE CASE STATEMENT OF THE FACTS QUESTIONS PRESENTED
1. Whether the trial court misapplied the law and committed reversible legal error in granting judgment of foreclosure in favor of Appellee and on Appellant's counterclaim?
2. Whether the Appellee trust had any legal right to foreclose the mortgage at the commencement of this action?
3. Whether the federal Truth-in-Lending (TILA) disclosure statement that Appellee delivered to Appellant constitutes a material mis-disclosure under TILA that was unfair and deceptive and that violated the federal Truth-in-Lending Act by disclosing a "comfort" fixed-rate annual percentage rate in the TILA disclosure statement that overshadowed the adjustable interest rate information disclosed in the HUD-1 disclosure statement that Appellee gave to Appellant for the adjustable rate mortgage loan involved in this foreclosure?
4. Whether Appellee violated the applicable material disclosure obligations of the federal Truth-in-Lending Act by failing to give Appellant a "CHARMS" booklet at closing………………………………………………………………23
5. Whether the Appellee's December 19, 2005 notice of default and intent to accelerate sent to Appellant failed to conform to the requirements of the mortgage contract and Florida law?
6. Whether the Appellee failed to comply with pre-foreclosure prevention notice requirements imposed by the National Housing Act, 12 USC 1701x(c)5?
SUMMARY OF ARGUMENT ARGUMENT STANDARD OF REVIEW CONCLUSION CERTIFICATE OF SERVICE SERVICE LIST
15 16 16 37 38 38
CERTIFICATE OF COMPLIANCE WITH FONT STANDARD…33
TABLE OF CITATIONS Cases 17 In re Cummings, 184 N.Y.S. 404 (N.Y. App. Div. 1920)
BAC Funding Consortium , Inc. v. Jean-Jacques 28 So. 3rd 936 (Fla. 2nd DCA 2010)
Bouskila v. M & I Bank Case No. 1D10-2127 (Fla. 1st DCA 2011)
17 In re Doble, No. 10-11296-MM13, 2011 WL 1465559 (Bankr. S.D. Cal. Apr. 14, 2011) Calderon v. J.B. Nurseries, Inc.
933 So. 2d 553 (Fla. 1st D.C.A. 2006) 23,24 In re Celotex, 487 F.3d 1320 (11th Cir. 2007) Carapezza v. Pate 143 So.2d 346 (Fla. 3rd DCA 1962) 17
Crossland Sav. Bank FSB v. Constant 489 U.S. at 113, 109 S.Ct. 948 D’Angelo v. Fitzmaurice 863 So. 2d 311, 314 (Fla. 2003)
F.A. Chastain Constr. v. Pratt, 146 So.2d 910 (Fla. 3d DCA 1962)
Firestone Tire & Rubber Co. v. Bruch 489 U.S. 101, 112, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)
17 Gee v. U.S. Bank Nat‘l Ass‘n, No. 5D10-1687, 2011 WL 4645602 (Fla. 5th DCA Sept. 30, 2011) Gomez v. Am. Sav. & Loan Ass‘n, 515 So.2d 301 (Fla. 4th DCA 1987)
Goncharuk v. HSBC Mortgage Serv., Inc., 62 So. 3d 680 (Fla. 2nd DCA 2011)
17 In re Dana, 465 N.Y.S.2d 102 (N.Y. Sup. Ct. 1982)
Jones v. First National Bank in Fort Lauderdale
226 So.2d 834 (Fla. 4th DCA 1969)
Konsulian v. Busey Bank, N.A. Case No. 2D10-2163 (Fla. 2nd DCA 2011)
Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1st DCA 1966) LaSalle Nat’l Bank Ass’n v. Lamy 12 Misc. 3d 1191A (2006)
Rashid v. Newberry Fed. Sav. & Loan Ass‘n, 502 So.2d 1316 (Fla. 3d DCA 1987), appeal after remand, 526 So.2d 772 (1988) Rashid v. Newberry Federal Savings & Loan Ass’n, supra, Maniscalco v. Hollywood Federal Savings & Loan Ass’n 397 So.2d 453 (Fla. 4th DCA 1981) 17 In re Hayes, 393 B.R. 259 (Bankr. Mass. 2008)
Verizzo v. Bank of New York 17 28 So. 3d 976 (Fla. 2nd DCA 2010) Your Constr. Ctr., Inc., v. Gross, 316 So.2d 596 (Fla. 4th DCA 1975) In re Fidler, 210 B.R. 411 (D. Mass. 1997) Statutes Florida Statute 671.102 F.S. 671.102(3)
Fla. Stat. Ann. § 737.401 (1997) 12 USC 1701x 12 USC 1701x(c)(4) 12 USC 1701x(c)(5) National Housing Act,12 USC 1701x(c)5 15 U.S.C.1601 15 U.S.C. 1635 15 U.S.C. 1640(a) New York UCC § 3-202(2) 20
Regulations Reg. Z. § 226.18(f); 52 Fed. Reg. 48665 (Dec. 24, 1987)
Rules and Other Citations
Restatement (Second) of Trusts § 37 Restatement (Second) of Trusts § 185 (1959) Restatement (Second) of Trusts § 186 (1959) Restatement (Second) of Trusts § 201 cmt. b (1959) When Do Allonges Meet The Requirements of the New York New York Law Journal, November 27, 2006
15 Trusts § 201 cmt. b (1959NYA 1-102(3), now RA 1-302 http://www.abcny.org/pdf/report/LEGALDOCS-1.pdf 15 U.S.C. 1601, et. seq., Regulation Z, 12 C.F.R. Part 226. note 48 of Section 226.23 of Regulation Z National Housing Act 12 USC 1701x(5) Trusts § 186 (1959) Trusts § 185 (1959) Trusts § 37 16 22
STATEMENT OF THE CASE Appellant, Marilyn G. Harley, an original defendant in this residential foreclosure action, appeals a July 13, 2011 "Final Judgment of Foreclosure" entered by the Fourth Judicial Circuit Court in and for Duval County, Florida in favor of the Appellee, HSBC Bank USA, National Association, As Trustee For Home Equity Loan Trust Series AE 2005-HE5, the foreclosing Plaintiff in the Trial Court, on July 13, 2011. (R. Vol. 5 Pg. 886-889). Appellant also appeals the July 25, 2011 final order captioned "Amended Order on Plaintiff's Motion For Judgment As a Matter of Law On Defendant's Third Affirmative Defense and Counterclaim" entered by the Circuit Court granting the Appellee's motion for judgment on Appellant's counterclaim. (R. Vol. 5 Pg. 900). Appellee filed an "Amended Complaint To Foreclose Mortgage And To Enforce Lost Loan Documents" (hereinafter "Amended Complaint") against Appellant on March 3, 2007 seeking to foreclose a recorded mortgage in favor of Trimerica Mortgage Corporation. Attached to Appellee's amended complaint is an
assignment of mortgage dated January 30, 2006. In its Amended Complaint, Appellee claims that it "owns and holds the Note and Mortgage" but that Appellee "is not presently in possession of the original note and mortgage." (R. Vol. 1 Pg. 43-69; Vol. 7 Pg. 1134-1155). Appellant timely filed her "First Amended Answer To Amended Complaint, Affirmative Defenses And Counterclaim" (hereinafter "Amended Answer") denying that the recorded mortgage, a copy of which introduced into evidence, was assigned to Appellee; denying that Appellee stated a cause of action for foreclosure on account of the Appellee not being the true owner of the claim and not being the real party in interest or shown to be authorized to bring the subject foreclosure action at the time this action was filed. (R. Vol. 1 Pg. 96-100; Vol. 7 Pg. 1134-1155). In her Amended Answer, Appellant denies that the subject promissory note is a negotiable instrument and points out that the Appellee failed to attach a copy of the underlying promissory note to its Amended Complaint. (R. Vol. 1 Pg. 96-100) Appellant asserts affirmative defenses in her Amended Answer against the Appellee's foreclosure action claiming that Appellee failed to provide Appellant with a "Notice of Default and Intent to Accelerate" (R. Vol. 7 Pg. 1224-1225) that conformed to the specific requirements of the mortgage and that such notice failure resulted in a failure of the Appellee to meet the pre-foreclosure obligations
imposed by the mortgage contract and by Florida law as condition precedent to acceleration of the underlying debt and to foreclosure of the mortgage. (Id). Appellant further and additionally asserts affirmative defenses in her Amended Answer claiming that Appellee failed to comply with the federal statutory pre-foreclosure prevention notice requirement imposed on Appellee in equity and also imposed pursuant to a statutory scheme that embeds a federal statutory notice as a condition precedent to foreclosure of the subject residential mortgage. Appellant claims that Appellee did not comply with this condition precedent to acceleration and foreclosure by failing to send Appellant a notice that contained information about foreclosure avoidance counseling that Appellee offered to residential mortgage borrowers and that Appellee failed to send this notice within 45 days of Appellant's initial payment delinquency under the promissory note. (Id) Finally, Appellant affirmatively defends against the foreclosure and asserts a counterclaim against Appellee seeking federal Truth-in-Lending rescission of the subject mortgage on the basis of the Appellee‘s conduct, which amounted to unfair and deceptive acts and materially violated the mandatory consumer disclosure obligations set out in the Federal Truth In Lending Act (hereinafter "TILA"). Appellant claims that Appellee‘s illegal conduct is evidenced by the fact that Appellee gave Appellant a "Federal Truth-In-Lending Disclosure Statement"
(hereinafter "TILA Statement") (R. Vol. 2 Pg. 209-212; T. 160:18 – 161:17) that disclosed a comforting fixed annual percentage rate to Appellant that overshadowed the HUD-1 disclosure form (Id) also given to Appellant at the closing for the adjustable rate mortgage that is the subject of this action. The Appellant also affirmatively defends this foreclosure and states a counterclaim seeking TILA rescission and other consumer remedies for her damages proximately caused by the fact that the Appellee also failed to comply with TILA by failing to give Appellant a CHARMS BOOKLET, which is a material consumer disclosure and that Appellee failed to give this booklet to Appellant at the closing of the subject mortgage loan or at all. The CHARMS BOOKLET is officially referred to as a "Consumer Handbook on Adjustable Rate Mortgages". (Id). Four years after this foreclosure action was commenced, Appellee attached an original promissory note to a notice that Appellee filed in the circuit court. (R. Vol. 2 Pg. 350-380). A nonjury trial before the circuit court was held on January 24 and March 24, 2011 which resulted in the entry of the July 13, 2011 Final Judgment of Foreclosure. Appellee filed a motion to cancel/reset the foreclosure sale, which was granted in part, by order of the circuit court canceling the sale, but NOT resetting sale. (R. Vol. 5 Pg. 902-905, 923-924).
The Final Judgment of
Foreclosure is a final order; it remains in effect and is adverse to Appellant, as is the Amended Final Judgment on Counterclaim.
STATEMENT OF FACTS The Appellee is a trust established pursuant to a trust agreement titled ―Pooling and Servicing Agreement Dated as of August 1, 2005‖ (hereinafter ―PSA‖). The PSA for the Appellee trust provides, in Section 2.09, that Appellee (represented in this action by HSBC as trustee) is an express trust governed by the laws of the state of New York. (R. Vol. 6 Pg. 925-1127). As a New York trust, Appellee‘s legal existence and capacity is controlled by the PSA pursuant to which HSBC Bank, as trustee, and Wells Fargo, as custodian and servicer, derive all their respective trust related rights, powers, obligations and duties in the forming the Appellee trust, in the conveyance and transfer of ―qualified mortgage loans‖ into the corpus of the Appellee trust, and in the servicing of the qualified mortgage loans transferred into the trust. The PSA is the binding trust contract that controls all of the actions of the
trustee, the custodian and the servicer with respect to the Appellee trust. (Id). On April 5, 2005, Appellant refinanced the debt on her home giving a promissory note to Trimerica Mortgage Corporation secured by a mortgage recorded in the official records of the Duval Circuit Clerk on April 19, 2005 at book 12421 and page 1878. (R. Vol. 7 Pg. 1134-1135, 1229-1237). The referenced PSA (R. Vol. 6 Pg. 925-1127) and a related and incorporated Custodial Agreement (R. Vol. 7 Pg. 1156-1195) were introduced into evidence at trial by the Appellee and these agreements contain the following pertinent definitions: ―Agreement‖ is the Pooling and Servicing Agreement and all the exhibits and schedules. (all definitions are PSA unless otherwise stated). ―Assignment‖ is an assignment of a mortgage in recordable form. ―Closing Date‖ is August 26, 2005. ―Code‖ is the Internal Revenue Code of 1986. ―Custodial Agreement‖ is the Custodial Agreement dated as of March 1, 2005 between HSBC as the Trustee, Wells Fargo, as the Custodian and Wells Fargo, as the Servicer. ―Custodian‖ is Wells Fargo. ―Custodial File‖ is defined in the Custodial Agreement as ―any mortgage loan documents which are delivered to the Custodian‖ relating to ―each Mortgage
Loan‖. ―Cut-off Date‖ is August 26, 2005 with respect to each Mortgage Loan. ―Depositor‖ is ACE Securities Corp. ―Mortgage‖ is the mortgage in a mortgaged property securing a mortgage note. ―Mortgage File‖ is the mortgage loan documents that pertain to a mortgage loan. ―Mortgage Loan Documents‖ are the documents that evidence or relate to the delivery of the mortgage loan to Wells Fargo, as the Custodian under the Custodial Agreement on behalf of HSBC, as the trustee. ―Mortgage Loan Purchase Agreement‖ (MLPA) is the mortgage loan purchase agreement between the ACE Securities DB Structured Products, the Seller that is dated August 26, 2005 and was introduced into evidence by Appellee. (R. Vol. 7 Pg. 1156-1195). ―Mortgage Loan Schedule‖ is the initial list of mortgage loans included in REMIC I attached to the PSA as Schedule that ACE Securities (depositor) must deliver to Wells Fargo (as servicer and custodian) and to HSBC Bank (trustee) on August 26, 2005 (the closing date). The Mortgage Loan Schedule must list 37 specific items of information about each mortgage loan delivered by Wells Fargo (as custodian) to HSBC Bank, as trustee, pursuant to the Custodial Agreement.
The 37 data points that must be listed for each loan delivered by Wells Fargo include the mortgagor‘s first and last name and the street address of the mortgaged property. ―Mortgage Note‖ is the original executed note evidencing the debt under a mortgage loan. ―Mortgaged Property‖ is the underlying property securing the residential mortgage loan. ―Mortgagor‖ is the obligor on a mortgage note. ―REMIC‖ or ―real estate mortgage investment conduit‖ is an entity formed for the purpose of holding a fixed pool of mortgages secured by interests in real property‖ within the meaning of Section 860 of the IRS Code.
http://www.irs.gov/publications/p550/ch01.html#en_US_2010_publink100010133 ―REMIC I‖ is the ―pool of assets…consisting of…such mortgage loans...subject to‖ the PSA. ―Seller‖ is DB Structured Products, Inc. in its capacity as seller under the MLPA. ―Servicer‖ is Wells Fargo appointed under the PSA ―in connection with the servicing and administration of the Mortgage Loans‖. ―Startup Day‖ is August 26, 2005 with respect to each Trust REMIC. ―Trust‖ is ―ACE Securities Corp., Home Equity Loan Trust, Serie 2005-HE5‖,
the trust created under the PSA. ―Trust Fund‖ includes all of the assets of REMIC I. ―Trust REMIC‖ is REMIC I. ―Trustee‖ is HSBC Bank USA, National Association. Under Section 2.01 of the PSA, ACE, as the Depositor, agreed to transfer to HSBC Bank, as the Trustee, on behalf of the Appellee Trust, ―all right, title and interest‖ of ACE ―in and to the Mortgage Loans identified on the Mortgage Loan Schedule‖ concurrently with the execution and delivery of the PSA. This transfer from the depositor to the trust includes the mortgages securing the mortgage loans. (R. Vol. 6 Pg. 925-1127). Under Section 2.02 of the PSA, HSBC Bank, as the Trustee of the Appellee trust, acknowledges receipt of the Mortgage Loan Documents and all other assets included within the definition of the REMIC 1, subject to Section 2.01 of the PSA and Section 2 of the Custodial Agreement. HSBC Bank holds these mortgage loan documents in trust in its capacity as trustee of the Appellee trust. (Id). Section 2 of the Custodial Agreement specifies that ACE, as the Depositor, had to deliver and release, by August 26, 2005, a set of documents to Custodian Wells Fargo for each of the Mortgage Loans identified in the Mortgage Loan Schedule that was supposed to be attached to the PSA. (R. Vol. 7 Pg. 1156-1195). The documents that ACE was required to deliver to Wells Fargo by August
26, 2005, the closing date of the Appellee trust, under Section 2 of the Custodial Agreement in order for the subject mortgage loan to be included as part of the corpus of the subject trust were: a. the original Mortgage Note ―bearing all intervening endorsements necessary to show a complete chain of endorsements from the original payee, endorsed in blank, via original signature, and, if previously endorsed, signed in the name of the last endorsee by a duly qualified officer of the last endorsee‖; b. the original Assignment of Mortgage ―executed in blank‖; c. the original Mortgage or a certified copy with evidence of recording; and d. the originals of any intervening assignment of mortgage or
certified copies with evidence of recording. (Id). Under Section 2.02 of the PSA, HSBC Bank, as trustee, had authority to acknowledge receipt of the Mortgage Loan Documents and all the other assets of REMIC 1 that were delivered to it by ACE through the Custodian Wells Fargo by August 26, 2005 and to declare that it holds all the Mortgage Loan Documents in trust. (R. Vol. 6 Pg. 925-1127). Section 2 of the Custodial Agreement required Wells Fargo as Custodian to deliver to HSBC Bank the documents specifically identified above – the original Mortgage Note with all intervening endorsements, the original Assignment of
Mortgage executed in blank and the original Mortgage or a certified copy with evidence of recording within the limited REMIC time authorized by the PSA. (R. Vol. 7 Pg. 1156-1195). Section 3 of the Custodial Agreement, consistent with the PSA, also required Wells Fargo to deliver an Initial Trust Receipt and Certification to HSBC as trustee of the Appellee trust, stating that each and every mortgage loan described and identified in the Mortgage Loan Schedule has a specific set of Mortgage Loan Documents delivered to HSBC Bank by the August 26, 2005 cut-off date for the Appellee REMIC trust. (Id). At trial, there was no evidence presented by Appellee: a. that the original Harley Mortgage Note, that is the subject of this action
bearing all intervening endorsements necessary to show a complete chain of endorsements from Trimerica, endorsed in blank, via original signature, was delivered by ACE to Wells Fargo by August 26, 2005; b. that an original Assignment of the Harley Mortgage ―executed in blank‖
was delivered by ACE to Wells Fargo by August 26, 2005; or that c. the original or recorded copies of any intervening assignments of the subject
mortgage was delivered by ACE to Wells Fargo by August 26, 2005; d. that the Initial Trust Receipt and Certification, delivered by Wells Fargo to
HSBC, stated that all of the required Mortgage Loan Documents for the Mortgage
Loan that is the subject of this foreclosure action was identified in the Mortgage Loan Schedule or (other than those Mortgage Loans identified on an exception report) were delivered to HSBC Bank by the cut-off date which was August 26, 2005. (R. Vol. 7 Pg. 1197-1200). Under the Custodial Agreement in the present case, ACE agreed to purchase Mortgage Loans from Seller DB Structured Loan Products pursuant to the Mortgage Loan Purchase Agreement. (R. 1156-1195). Mortgage Loan is defined in the Custodial Agreement consistent with the PSA as being ―[e]ach mortgage loan identified on the Mortgage Loan Schedule‖ that is supposed to be attached to the Custodial Agreement. (Id). There was no mortgage loan schedule, meeting the definition of a "mortgage loan schedule" contained in the PSA, attached to the PSA or attached to any other document introduced into the evidence in this action. There was supposed to be a list of loans attached to the PSA, but there is not. (R. Vol. 6 Pg. 925-1127). Additionally, the Mortgage Loan Schedule is defined in the Custodial Agreement the same as it is in the PSA as ―The schedule of Mortgage Loans to be delivered by the Depositor to the Custodian and the servicer (with a copy to the Trustee) two Business Days prior to the Closing Date and to be annexed‖ to the Custodial Agreement ―as Exhibit 8‖. This Mortgage Loan Schedule must contain the same 37 data points described in the PSA. (Id). However, there was no
evidence presented in this case that a Mortgage Loan Schedule was attached to the PSA. Under Section 5 of the Custodial Agreement, Wells Fargo was supposed to review each Custodial File within 180 days after August 26, 2005 and deliver to HSBC a Final Trust Receipt confirming that, as to each of the mortgage loans listed on the Mortgage Loan Schedule, all of the above-described mortgage loan documents were reviewed, that the mortgage loan documents reviewed for each Mortgage Loan accurately reflected the information on the Mortgage Loan Schedule; that each Mortgage Note was endorsed and that the Mortgage was assigned to the Appellee trust in conformity with Section 2 of the Custodial Agreement. (R. Vol. 7 Pg. 1156-1195). There was no evidence presented in this case of the existence or delivery by Wells Fargo to HSBC of a Final Trust Receipt, as defined and specified in the Custodial Agreement, confirming that the Harley Mortgage Loan that is the subject of this foreclosure action was listed on any Mortgage Loan Schedule as defined in the PSA or by the Custodial Agreement. Nor is there any evidence that Wells Fargo ever confirmed that all of the required documents relating to the Harley mortgage loan were reviewed by it. In the present case, there was no qualifying Mortgage Loan Schedule, there was no evidence presented, nor could there be, that Wells Fargo reviewed any
documents for the Harley mortgage loan for accuracy and no evidence showing that Well Fargo confirmed that the Harley Mortgage Note was endorsed or that the Harley Mortgage was ever assigned in conformity with Section 2 of the Custodial Agreement. Section 11.02 of the PSA specifically limits HSBC, as the trustee, and prohibits the custodian from accepting any mortgage loans as contributions to the Appellee Trust REMIC after August 26, 2005. (The Qualified Substitute Mortgage Loan transfer provisions in Section 2.03 of the PSA do not apply to the Harley loan. (R. Vol. 6 Pg. 925-1127). At trial, Appellee trust introduced into evidence a copy of the Harley note and an unauthenticated indorsement called "Allonge To Note" that was not physically attached to the Harley note, but instead appears on a separate piece of paper, after a Prepayment Addendum. (R. Vol. 7 Pg. 1229-1237).
SUMMARY OF ARGUMENT The trial court misapplied the law and committed reversible legal error in granting judgment of foreclosure in favor of Appellee because the Appellee trust did not have any legal right to foreclose the mortgage at the commencement of this action. The federal Truth-in-Lending disclosure statement that Appellee delivered to
Appellant constitutes a material misdisclosure under TILA that was unfair and deceptive and that violated the federal Truth-in-Lending Act by disclosing a "comfort" fixed rate annual percentage rate that overshadowed the adjustable interest rate information contained in the HUD-1 disclosure for the adjustable rate mortgage loan involved in this foreclosure. Appellee violated the applicable material disclosure obligations of the federal Truth-in-Lending Act by failing to give Appellant a "CHARMS" booklet at closing. The Appellee's December 19, 2005 notice of default and intent to accelerate failed to conform to the requirements of the mortgage contract or Florida law. The Appellee failed to accelerate the mortgage debt. The Appellee failed to comply with preforeclosure prevention notice requirements imposed by the National Housing Act,12 USC 1701x(c)5.
ARGUMENT THE TRIAL COURT MISAPPLIED THE REVERSIBLE LEGAL ERROR IN LAW AND COMMITTED JUDGMENT OF
FORECLOSURE IN FAVOR OF APPELLEE BECAUSE THE APPELLEE TRUST DID NOT HAVE ANY LEGAL RIGHT TO FORECLOSE THE MORTGAGE AT THE COMMENCEMENT OF THIS ACTION.
STANDARD OF REVIEW THE TRIAL COURT‘S DECISIONS CHALLENGED IN THIS APPEAL ARE CONTRARY TO LAW. THE STANDARD OF REVIEW ON ALL ISSUES RAISED IN THIS APPEAL IS DE NOVO. D’Angelo v. Fitzmaurice, 863 So. 2d
311, 314 (Fla. 2003); Armstrong v. Harris, 773 So.2d 7 (Fla. 2000) Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553 (Fla. 1st D.C.A. 2006); Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc, 743 So.2d 627 (Fla. 1st D.C.A. 1999) (The construction of a written contract is, moreover, a matter of law. Therefore, our review standard over the lower tribunal's construction of the contract is de novo. Jacobsen v. Ross Stores, 882 So.2d 431 (Fla. 1st D.C.A. 2004); Klonis v. Dep't of Revenue, 766 So.2d 1186 (Fla. 1st D.C.A. 2000)( Review of this pure question of law is de novo.)
MISAPPLICATION OF LAW AND REVERSIBLE ERROR Appellee is a REMIC trust (Real Estate Mortgage Investment Conduit) and
as such, Appellee is subject to and must comply with the strict IRS regulations which, in turn, are imposed on Appellee by the strict terms of Article XI of the PSA. (R. Vol. 6 Pg. 925-1127). It is basic trust law that, in addition to applicable laws, a trust‘s founding document controls what rules and regulations must be adhered to by the trustee on behalf of the trust. This is true in Florida and New York. Jones v. First National Bank in Fort Lauderdale, 226 So.2d 834 (Fla. 4th DCA 1969); See also, In re Dana, 465 N.Y.S.2d (N.Y. Sup. Ct. 1982) and In re Cummings, 184 N.Y.S. 404 (N.Y.App. Div. 1920). As a REMIC Trust, Appellee had no right or claim to foreclose the Appellant's mortgage or prevail in this foreclosure action and Appellee failed to present any admissible evidence that Appellee held or owned the subject mortgage note at the commencement of this foreclosure action. Absent such essential
evidence of ownership and holder status, Appellee failed to establish standing or real party in interest status to prosecute this foreclosure action. Gee v. U.S. Bank, N.A., as Trustee, Case No. 5D10-1687 (Fla. 5th DCA 2011); BAC Funding
Consortium, Inc. v. Jean-Jacques, 28 So. 3rd 936 (Fla. 2nd DCA 2010); and Your Construction Center, Inc. v. Gross, 316 So.2d 596 (Fla. 4th DCA 1975). And see: In re Doble, 2011 Bankr. LEXIS 1449 (April 14, 2011) and In re Hayes, 393 B.R, 259 (Bankr. Mass. 2008). Florida law requires that Appellee hold and own the subject note at the commencement of this action. Ownership of the note and the
mortgage are material facts at issue in this foreclosure that needed to be proved by Appellee. Carapezza v. Pate, 143 So.2d 346 (Fla. 3rd DCA 1962); Laing v. Gainey Builders, Inc., 184 So.2d 897 (Fla. 1st DCA 1966) (holder of note and mortgage is real party in interest in foreclosure action); Verizzo v. Bank of New York, 28 So. 3d 976 (Fla. 2nd DCA 2010) (requiring showing that foreclosing entity hold the note and mortgage and that it owned same before commencement of the foreclosure), accord, Bouskila v. M & I Bank, Case No. 1D10-2127 (Fla. 1st DCA 2011) (―the party seeking to foreclose must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure‖). The PSA is the only mechanism by which the Appellee trust is competent to acquire, transfer, dispose of or sell any mortgage loan or other asset. As trustee of the plaintiff trust, not only is HSBC bound by the strict terms and limitations of the PSA, but HSBC has no capacity or competency to acquire, transfer, dispose of or sell any mortgage loan or other asset on the trust‘s behalf outside the terms of the PSA. In this case, HSBC Bank, as trustee of the Appellee trust, had the initial burden of presenting the Trial Court with evidence that the trust held the Appellant Harley's note at the commencement of this action. Appellee completely failed to meet this evidentiary burden and the "Allonge To Note" that Appellee did introduce into evidence (R. Vol. 7 Pg. 1229-1237) does not meet the technical
requirements of the New York Uniform Commercial Code (which uses the 1951 version of the UCC) to make the transferee of a promissory note its ―holder.‖ Because the PSA adopts for all purposes New York law, the New York version of the UCC controls how and when the Appellee trust could gain the status and capacity of a holder of the Appellant's note. New York UCC § 3-202(2) states: ―An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.‖ The detached and separate "Allonge To Note" introduced by Appellee as evidence in this case is impaired and rendered ineffective under the New York UCC so that the allonge is not a valid indorsement of the Appellant's promissory note and does not satisfy the strict terms of the PSA. This failure of a proper indorsesment and the fact that, by its terms, the promissory note at issue is not negotiable, are fatal to the Appellee's right to enforce the Appellant's promissory note as a negotiable instrument and deprive Appellee of any legal right to foreclose the Appellant's mortgage. The Appellee failed to establish it held the Harley note under the PSA on August 26, 2005 (or ever). The Appellee trust, by the clear terms of the PSA, is governed by New York law which clearly prohibits the use of any additional piece of paper for an indorsement, as long as enough space remains to write the indorsement somewhere
on the negotiable instrument itself.
Even if this Court finds the Appellant's
promissory note negotiable, there is space on the note and the ―No-Space Test‖ does not allow the use of a separate allonge. Even when another law allows a separate indorsement, the New York UCC literally requires an allonge to be ―firmly affixed‖ to the instrument..." (3 sets of quotation marks here – are we missing one somewhere?) See: Getting Attached When do Allonges meet the requirements of the New York UCC?, New York Law Journal, November 27, 2006, by Lawrence Safran and Joshua Stein. In Crossland Sav. Bank FSB v. Constant, the indorsements were rejected because they were not stapled to the negotiable instruments themselves, but instead to the back of another document in a group of documents that included the notes. Similarly, in LaSalle Nat’l Bank Ass’n v. Lamy, 12 Misc. 3d 1191A (2006), the assignee took an assignment of the note without at the same time receiving an indorsement from the proper party. The assignee later did receive an allonge from the proper party, but did not attach it to the note. The court, holding that this allonge was not an ―indorsement‖ under New York UCC § 3-202(2), decided that regardless of the fact that the assignor still owned the note, the assignee could not enforce the note or obtain a default judgment on the note. Even if this Court were to accord to the Appellee trust in the present action the status of a transferee of an instrument by operation of law under the UCC, pursuant
to its own PSA, the Appellee trust is not and cannot be a holder of the promissory note, as it is not part of a "qualified mortgage loan" under the PSA. As a result, Appellee has no legal or contractual right to enforce the Appellant's promissory note under the UCC and Appellee has no legal ability or capacity to foreclose the Appellant's mortgage under Florida law. All the provisions of Florida and New York‘s versions of the UCC are subject to be varied by private agreement (subject to limitations not applicable to the instant case). Florida Statute 671.102 titled: ―Purposes; rules of construction;
variation by agreement‖ states that ―[t]he effect of provisions of this code may be varied by agreement‖. F.S. 671.102(3). This broad grant of power to private parties to contract away from the UCC by private agreement is only limited by prohibitions contained in other provisions of the UCC not applicable here and the parties are prohibited by the UCC from deviating or contracting away their respective UCC ―obligations of good faith, diligence, reasonableness and care‖. The UCC clearly respects the right of the Appellee in the present action to enter into a private agreement - the PSA - which self-limits the Appellee's capacity and ability to hold the Appellant's promissory note. The PSA, as authorized by the UCC, is a private agreement which changes the standards by which the Appellee trust can access holder status and gain UCC rights to enforcement. The UCC
bestowed the Appellee with the right to set up different standards to become a holder and these differing standards control as long as the deviations are not manifestly unreasonable. The effect of F.S. 671.102(3) is to grant the Appellee the right and power to execute the PSA and to expressly deny the power of HSBC, as the trustee, to claim ―transferee‖ or other ―non-holder‖ status on behalf of the Appellee in this case because the Appellant's promissory note and other requisite mortgage loan documentation was not transferred to the Appellee by August 26, 2005 as required by the strict terms of the PSA. New York‘s version of the UCC has the identical provision to the ―variation by agreement‖ provision found in F.S. 671.102(3). (formerly NYA 1-102(3), now RA 1-302) see: the 2004 Report on Revised Article 1 of the Uniform Commercial Code prepared by the Committee on Uniform State Laws of The Association of the Bar of the City of New York at:
http://www.abcny.org/pdf/report/LEGALDOCS-1.pdf The official comments to Article I of both the Florida and New York UCC inform that the UCC must be liberally construed and applied to permit the expansion of commercial practices through agreement of the parties. Appellee was free to enter into the PSA and the other agreements and to change the legal consequences that would otherwise flow from the application of the UCC.
The PSA is now the primary source of rules, obligations and limitations that clearly vary the effect of the UCC with respect to how and when the Appellee trust can achieve holder status of a negotiable instrument. Assuming that the
Appellant's promissory note is a negotiable instrument, then Appellee failed to establish holder status which is a statutory and common law precedent to the Appellee asserting a legal right to enforce the Appellant's promissory note under the UCC or to foreclose the Appellant's mortgage under Florida law. Additionally pursuant to the PSA, Appellee has no legal capacity to be a transferee or a non-holder in possession of the Appellant's promissory note. It is also clear that under New York law, as the trustee of the Appellee, a New York common law trust, HSBC cannot act or ratify acts not authorized or in accordance with its own trust agreement (the PSA). In re Celotex, 487 F.3d 1320 (11th Cir 2007). In In re Celotex, the Eleventh Circuit was faced with the same
fundamental issue of defining the relative powers of a New York express trust in the process of resolving whether or not the trustees possessed certain discretionary authority or whether the Trustees' actions were ultra vires under the Trust agreement. The Eleventh Circuit determined that in order to determine the power of the trustee, the court had to ―independently interpret the terms of the…Trust Agreement…‖ Id., citing: Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
112, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) ("As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party's interpretation."). "The extent of [a trustee's] duties and powers is determined by the trust instrument and the rules of law which are applicable, and not by his own interpretation of the instrument or his own belief as to the rules of law." Restatement (Second) of Trusts § 201 cmt. b (1959). "From the trust, the trustee derives the rule of his conduct, the extent and limit of his authority, the measure of his obligation." Jones v. First Nat'l Bank in Fort Lauderdale, 226 So.2d 834, 835 (Fla. 4th Dist.Ct.App.1969) "[T]he trustee can properly exercise such powers and only such powers as (a) are conferred upon him in specific words by the terms of the trust, or (b) are necessary or appropriate to carry out the purposes of the trust and are not forbidden by the terms of the trust." Restatement (Second) of Trusts § 186 (1959); see also id. § 164. Likewise, the Eleventh Circuit determined in the In re Celotex case, that ―[t]he extent and limit of the Administrator's powers are similarly determined by the terms of the Trust Agreement‖ referencing for authority The Restatement (Second) of Trusts § 37 ("[T]he settlor may grant powers to…the trustee, a beneficiary, or a third person otherwise unconnected with the trust."). The Eleventh Circuit found that the general rule is: "If under the terms of the trust a person has power to control the action of the trustee in certain respects, the
trustee is under a duty to act in accordance with the exercise of such power, unless the attempted exercise of the power violates the terms of the trust or is a violation of a fiduciary duty to which such person is subject in the exercise of the power." citing The Restatement (Second) of Trusts § 185 (1959) as "the black letter law of trusts". Id. In the present case, the PSA and the Custodial Agreement bind the trustee of the Appellee trust to conform to the obligations under these controlling private agreements to administer the trust in accordance with the agreements. And, "If under the terms of the trust a person has power to control the action of the trustee in certain respects, the trustee is [ordinarily] under a duty to act in accordance…" Id. Because the trustee is "a fiduciary to the extent he exercises any discretionary authority or control," the In re Celotex court held that agents of trusts must ordinarily comply with the trustee‘s exercise of power as limited by the terms of the trust agreement. Id, citing, Firestone, supra, 489 U.S. at 113, 109 S.Ct. 948. As in In Re Celotex, the Trustee and the trust in the instant case are duty bound to comply with and follow the procedural and substantive limitations on their authority under the PSA. Neither the Appellee nor HSBC, as trustee, can take acts that are inconsistent with the express terms of the PSA or that exceed the power of control or authority granted therein. Because Appellee failed to acquire the transfer of Appellant's promissory note
as required by the strict terms of the PSA, Appellee is contractually prohibited and without legal power to exercise any rights with respect to the Appellant's note or mortgage.
THE FEDERAL TRUTH-IN-LENDING DISCLOSURE STATEMENT THAT APPELLEE DELIVERED TO APPELLANT CONSTITUTES A MATERIAL MISDISCLOSURE UNDER TILA THAT WAS UNFAIR AND DECEPTIVE AND THAT VIOLATED THE FEDERAL
TRUTH-IN-LENDING ACT BY DISCLOSING A "COMFORT" FIXED RATE ANNUAL PERCENTAGE RATE THAT OVERSHADOWED THE ADJUSTABLE RATE INFORMATION CONTAINED IN THE HUD-1 DISCLOSURE FOR THE ADJUSTABLE RATE MORTAGE LOAN INVOLVED IN THIS FORECLOSURE.
Appellee engaged in unfair and deceptive acts in violation of TILA by giving Appellant a ―Federal Truth-In-Lending Disclosure Statement‖ (―TILA Statement‖) that disclosed a fixed APR of 9.573%. 15 U.S.C. 1601, et. seq., Regulation Z, 12 C.F.R. Part 226. By disclosing a ―comforting‖ fixed APR in the TILA Statement that Appellee gave to Appellant, the Appellee put the Annual Percentage Rate disclosure in the HUD-1 in the shadows. This form of overshadowing of a
material financing term in a consumer contract constitutes an unfair and deceptive act under TILA because it effectively contradicted, distracted attention from and
drowned out the HUD-1 APR disclosure that was given to Appellant at closing. The replacement APR of 9.573 that is imputed to the HUD-1 as a result of the overshadowing exceeds the .125% tolerance allowed by TILA for the APR disclosure in this case for the Appellant's loan. For TILA purposes, the overshadowing disclosure of the APR beyond the allowable tolerance is a defective, inaccurate and erroneous disclosure of the APR, the legal effect of which is to establish that the Appellee completely failed to give Appellant the required material TILA APR disclosure on the HUD-1. 15 U.S.C. 1601. APPELLEE VIOLATED THE APPLICABLE MATERIAL DISCLOSURE OBLIGATIONS OF THE FEDERAL TRUTH-IN-LENDING ACT BY FAILING TO GIVE APPELLANT A "CHARMS" BOOKLET AT CLOSING. The evidence and the record in the present case establish that the Appellee materially failed to comply with TILA by failing to give Appellant a ―Consumer Handbook on Adjustable Rate Mortgages‖ - a CHARMS handbook - at closing explaining the features of her adjustable rate mortgage (ARM) as required by 15 U.S.C.1601, et. seq. The CHARMS booklet is a material disclosure which TILA required the lender in this case, the Appellee‘s predecessor in interest, to give to Appellant at closing. Under TILA, the Appellee is liable for the lender‘s failure to give Appellant the CHARMS booklet at closing and such failure triggered Appellant‘s right under
TILA to rescind the loan. See: note 48 of Section 226.23 of Regulation Z. Because the interest rate for Appellant's mortgage note is adjustable and is secured by mortgage on her principal dwelling with a maturity longer than one year, the lender was required to give the CHARMS information to Appellant at closing. The lender's failure to disclose the variable rate of this transaction as required by the TILA ARM disclosure rule is imputed to Appellee and entitles Appellant to recover from the Appellee her consumer statutory damages and also entitles Appellant to pursue her rescission right against the Appellee under TILA. In re Fidler, 210 B.R. 411 (D. Mass. 1997) and see: Reg. Z. § 226.18(f); 52 Fed. Reg. 48665 (Dec. 24, 1987). As a result of the Appellee's unfair and deceptive acts in overshadowing the ARM disclosure in the HUD-1 and by failing to give Appellant a CHARMS booklet at closing, TILA gives Appellant a continuing right to rescind the subject mortgage which right the Appellant exercised by timely sending a rescission letter to the Appellee pursuant to the Federal Truth-in-Lending Act, 15 U.S.C. 1635 and Regulation Z, Section 226.23. (R. Vol. 1 Pg. 36-38). In her rescission letter, Appellant timely notified the Appellee as required by and in accordance with TILA that Appellant was rescinding the mortgage because of the understating of the Annual Percentage Rate (APR) by more than the allowed
.125% and also because of the Appellee‘s failure to give her the CHARMS booklet explaining the features of adjustable rate mortgages (ARM) at closing as required by TILA. Under TILA, Appellee had 20 days after receipt of Appellant's rescission notice to take all action necessary to terminate the mortgage on her property. Appellant has no other obligation to affect the legal rescission of her home loan pursuant to TILA. Appellee failed to introduce any evidence at trial that Appellee had terminated its security interest in Appellant's real property subject to the mortgage. As a result of the Appellee's failure to introduce any evidence that Appellee canceled the Appellant's mortgage or terminated the security interest represented by the mortgage, the Appellee violated TILA and is liable to Appellant for her statutory damages pursuant to 15 U.S.C. 1640(a) for the statutory violation. Another consequence of the Appellee's failure to terminate its security interest upon the lawful rescission of the mortgage by Appellant, is that the Appellee came to trail with unclean hands and without any lawful right to pursue the equitable remedy of foreclosure.
THE APPELLEE'S DECEMBER 19, 2005 NOTICE OF DEFAULT AND INTENT TO ACCELERATE FAILED
REQUIREMENTS OF THE MORTGAGE CONTRACT AND FLORIDA LAW. THE APPELLEE FAILED TO ACCELERATE THE MORTGAGE DEBT. The December 19, 2005 notice of default failed to inform Appellant that she had to cure the payment default on her loan within 30 days of the date of the notice. Instead, the Appellee's December 19, 2005 notice demands that in order to avoid acceleration of the mortgage debt, that Appellant pay an additional $455.58 to Appellee over and above the amount due as of the notice date to cure the payment default. The $455.58 was included by the Appellee to cover a mortgage payment for January, 2006 that was not yet due. In this case, the Appellee‘s right to payment is contractually dependent upon compliance with the notice requirement for default and process by which the Appellee is contractually authorized to accelerate the mortgage debt is carefully set out in paragraph 22 of the Appellant's mortgage. Until the condition of the notice required by paragraph 22 is met, acceleration of the debt has not occurred and foreclosure must be denied. F.A. Chastain Construction v. Pratt, 146 So.2d 910 (Fla. 3d DCA 1962) aff‘d with directions, 157 So.2d 101 (1963); See also Gomez v. American Sav. & Loan Ass’n; 515 So.2d 301 (Fla 4th DCA 1987), Rashid v. Newberry Federal Savings & Loan Association, 526 So.2d 772 (Fla. 3d DCA 1988) and Konsulian v. Busey Bank, N.A., Case No. 2D10-2163 (Fla. 2nd DCA 2011).
Compliance with the contractual pre-foreclosure notice requirements is critical to the Appellee‘s entitlement to accelerate the subject debt which, in turn, is a contractual condition precedent to foreclosure. Rashid v. Newberry Federal Savings & Loan Ass’n, supra, Maniscalco v. Hollywood Federal Savings & Loan Ass’n, 397 So.2d 453 (Fla. 4th DCA 1981) (Notice required upon subsequent default after prior default cured). These decisions are consistent with the very recent ruling by the Florida Second District Court of Appeals in Goncharunk v. HSBC Mortgage Services, Case No. 2D10-2629 (Fla. 2nd DCA 5/20/11), in which the court reversed a summary judgment involving a similar notice failure. Appellee's December 19, 2005 notice of default also failed to substantially comply with the notice requirements of paragraph 22 of the mortgage because the notice fails to inform Appellant that she has the right to assert the non-existence of a default in a foreclosure proceeding. As a result, the Appellant's mortgage debt was not legally accelerated and a clear condition precedent to foreclosure of the Appellant's mortgage was not met.
THE APPELLEE FAILED TO COMPLY WITH PRE-FORECLOSURE PREVENTION NOTICE REQUIREMENTS IMPOSED BY THE NATIONAL HOUSING ACT, 12 USC 1701x(C)5. 12 USC 1701x(c)(5) imposes a specific statutory obligation on all creditors
in the United States, including the Appellee in the present case, who service conventional loans, (non federally-insured home loans) to send a specific notice about access and availability of homeownership counseling to defaulting homeowners within 45 days of an initial home loan payment default. The creditor is obliged to advise the homeowner of any homeownership counseling offered by the servicer of the loan and/or information about how to access HUD homeownership counseling. 12 USC 1701x(c)(5) was enacted 21 years ago as part of the Housing and Community Development Act of 1987 and provides in pertinent part: 12 USC 1701x. Assistance with respect to housing for low-and moderate income families (c)(5): Notification of availability of homeownership counseling. (A) Notification of availability of homeownership counseling. (i) Requirement. Except as provided in subparagraph C, the creditor of a loan…shall provide notice under clause (ii) to (I) any eligible homeowner who fails to pay any amount by the date the amount is due under a home loan,… (ii) Content. Notification under this subparagraph shall— (I) notify the homeowner…of the availability of any homeownership counseling offered by the creditor…; (III) notify the homeowner…of the availability of homeownership counseling provided by nonprofit organizations approved by the Secretary and experienced in the provision of homeownership counseling, or provide the toll-free telephone number described in subparagraph (D)(i);… (B) Deadline for notification. The notification required in subparagraph (A) shall be made— (i) in a manner approved by the Secretary; and (ii) before the expiration of the 45-day period beginning on the date on Which the failure referred to in such subparagraph occurs. (6) Definitions. For purposes of this subsection:
(A) The term ―creditor‖ means a person or entity that is servicing a home loan on behalf of itself or another person or entity. (B) The term ―eligible homeowner‖ means a homeowner eligible for counseling under paragraph 4. (C) The term ―home loan‖ means a loan secured by a mortgage or lien on residential property. (D) The term ―homeowner‖ means a person who is obligated under a home loan. (E) The term ―residential property‖ means a 1-family residence,… (7) Regulations. The Secretary shall issue any regulations that are necessary to carry out this subsection. Under the terms of the statute, an ―eligible homeowner‖ is one who is eligible for counseling as follows: 12 USC 1701x(c)(4) Eligibility for counseling. A homeowner shall be eligible for homeownership counseling under this subsection if— (A) the home is secured by property that is the principal residence…of the homeowner; (B) the home is not assisted under title V of the Housing Act of 1949; and (C) the homeowner is, or is expected to be, unable to make payments, correct a home loan delinquency within a reasonable time, or resume full home loan payments due to a reduction in the income of the homeowner because of— (i) an involuntary loss of, or reduction in, the employment of the homeowner, the self-employment of the homeowner, or income from the pursuit of the occupation of the homeowner; or (ii) any similar loss or reduction experienced by any person who contributes to the income of the homeowner. The secretary of HUD, in a question and answer supplement ―published in order to respond to creditor inquiries and to clarify creditor responsibilities‖ under the statute. 55 FR 2416 (01/24/1990) states: ―We note that if a creditor‘s compliance…is challenged in court, the ultimate determination of the adequacy of the creditor‘s notification and the legal consequences of any noncompliance will be
made by the court.‖ (The question and answer supplement further advises creditors that: 1. The ―notification requirement applies to all home loans except those assisted by the Farmers Home Administration…Thus, both conventional mortgages and loans, and those insured by HUD or guaranteed by the Department of Veterans Affairs, are subject to section 169.‖ (Section 169 is a reference to the section of the Housing and Community Development Act that enacted 12 USC 1701x(c)(5)) 2. ―[S]ince the purpose of the notice is to help the homeowner avert foreclosure,
it should be sent soon enough to enable the homeowner to benefit from the counseling. HUD recommends that the notice be included in the creditor‘s first communication with the homeowner regarding the delinquency.‖ 3. ―A notice must be sent to every homeowner every time the homeowner If the homeowner brings the loan current and becomes
becomes delinquent. 4.
delinquent again, another notice must be sent.‖ ―The notice must contain information on any counseling provided by the
creditor and either the name, address and telephone number of the HUD-approved counseling agencies near the homeowner or a cost-free telephone number at the creditor‘s office where the homeowner can obtain this information…‖ 5. HUD does not supply a form. ―It is HUD‘s view that sufficient information has been provided on the section 169 notice requirement to enable creditors to prepare the notice. 6. ―Creditors may prefer to send the notice to all delinquent homeowners, rather than attempt to determine the cause of each delinquency.‖ 7. 8. ―The notice is not required (on) property sold under a land sales ―The statute does not require any creditor to provide counseling.‖
contract…until the contract is completed…‖
9. If a creditor does provide homeownership counseling, the creditor still has to ―notify the delinquent homeowner of the availability of homeownership counseling by HUD-approved counselors or by the Department of Veterans Affairs…‖ HUD published an advisory on the notice requirement of the statute which states: ―[T]he notice requirements …apply virtually to all mortgagees…‖ and that ―noncompliance with the law‘s requirements could be an actionable event that could affect a mortgagee‘s ability to carry out foreclosure in a timely manner…HUD regards the obligations imposed on creditors by the new law as self-executing: that is, the law speaks directly to creditors, imposing and obligation upon any and all creditors to notify any eligible homeowner counseling, whenever a home loan is ‗delinquent‘. 54 Fed. Reg. 20964-65 (May 15, 1989). The evidence presented in this case established that: a. the notification requirement of 12 USC 1701x(c)(5) applies to the Appellant's loan because it is a home loan not assisted under title V of the Housing Act of 1949 that is secured by a mortgage; b. the Appellee is a ―creditor‖ within the definition contained in the statute as the Appellee is ―a person or entity that is servicing a home loan on behalf of itself or another person or entity‖; and c. Appellant is a ―homeowner‖ within the definition contained in the statute as ―a person who is obligated under a home loan‖. The statute required the Appellee in this case to send a notice of preforeclosure counseling services to Appellant when she became delinquent in her mortgage payment. The statute required the Appellee to send Appellant a notice containing information about any foreclosure avoidance counseling that the Appellee offered to its residential home mortgage borrowers within 45 days of the delinquency in payment.
The evidence presented at trial in the present case establishes that the Appellee did not send a notice to Appellant that complied with the preforeclosure prevention notice requirement imposed on the Appellee by the National Housing Act, 12 U.S.C. 1701x(c)(5) before filing this foreclosure action. This failure is the result of the Appellee's actions in not sending Appellant a notice containing information on any foreclosure avoidance counseling that the Appellee offered to its residential home mortgage borrowers at all or within 45 days of the Appellant's delinquency in payment. The evidence presented in this case supports a finding that Appellee is not entitled to access the equitable remedy of foreclosure on account of the Appellee‘s failure to first comply with the federal statutory pre-foreclosure servicing notice obligation set out in 12 USC 1701x(c)(5) before instituting this foreclosure action.
CONCLUSION The Appellee did not hold Appellant's promissory note at the commencement of this action. Appellee had no legal right to foreclose the mortgage in this case. Appellee violated TILA by overshadowing the material APR disclosure and by failing to give Appellant a ―CHARMS‖ booklet at closing triggering Appellant's right to rescind the mortgage. Appellant timely rescinded the subject mortgage.
Appellee‘s security interest in Appellant‘s real property should be terminated by this appellate court and the subject mortgage canceled. The December 19, 2005 notice of default sent by the Appellee failed to comply with the mortgage. The payment obligations under the promissory note were never legally accelerated before the filing of this foreclosure action. Appellee failed to comply with the preforeclosure imposed by notice requirement
12 U.S.C. 1701x(c)(5) by failing to send Appellant a notice
containing information on foreclosure avoidance counseling within 45 days of the payment delinquency thereby denying Appellee access to the equitable remedy of foreclosure. The trial court misapplied the law and committed reversible error. Appellee's foreclosure complaint should be dismissed with prejudice and this matter should be remanded for consideration of appellant‘s claim for statutory damages and
attorney‘s fees including attorney's fees for the prosecution of this appeal. CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to Maris Ajmo, Shapiro, Fishman & Cache, LLP, 2424 N. Federal Highway Ste. 360, Boca Raton FL. 334317780, Attorney for Appellee, by U.S. Mail this 17th day of November, 2011. SERVICE LIST Marisa Ajmo, Esq. Shapiro, Fishman & Cache, LLP 2424 N. Federal Highway Ste. 360 Boca Raton FL. 334317780 Attorney for Appellee April Charney, ESQ. Jacksonville Area Legal Aid. Inc. 126 West Adams Street Jacksonville, FL. 32202 Attorney for Appellant JACKSONVILLE AREA LEGAL AID, INC., _____________________________________ April Carrie Charney, Esquire Fla. Bar. No.: 310425 126 W. Adams Street Jacksonville, Florida 33202 Telephone: (904) 356-8371, ext. 373 Facsimile: (904) 224-1587 firstname.lastname@example.org Attorney for Appellant CERTIFICATE OF COMPLIANCE THE UNDERSIGNED HEREBY CERTIFIES that the initial Brief of Appellant, Marilyn G. Harley, complies with the font requirements set forth in the Rule 9.210(a)(2), Fla. R. App.P.; to with Times New Roman 14-point font.
______________________________ April Charney, Esq.
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