To print this article, all you need to do is register or sign in to Mondaq.com.
In the case recently chosen d Fis v Newrez, LLCLEXIS 233104 (SD Fla. Dec. 28, 2022, No. 22-81364), the United States District Court for the Southern District of Florida (“the Court”) issued an interesting opinion emphasizing the rights different from the obligations given by the mortgage. and their respective share certificates, use the severance clause to waive an Environmental Protection Act (“RESPA”) claim because the lack of status.
The facts behind the movement were simple. In May 2008, Rafael Fis, Maria Fis, Diana Fis, and Omar Fis jointly purchased a home at 8921 Starhaven Cove in Boynton Beach, Florida (“the Property”). As part of the sale, Diana and Omar executed a mortgage (“the Mortgage”) and promissory note (“the Note”) with Bank of America – however, none of these tools named Raphael or Maria. After the sale, the mortgage was amended to add Raphael and Maria—and include all four parties—while the Note remained unchanged and included only two parties as debtors, Diana and Omar.
Fourteen years later, in June 2022, Raphael and Maria (“Defendants”) submitted a loan reduction request (“LMA”) to Defendant Newrez, LLC (“Defendant”), who was become a Notes servicer. The defendant failed to respond to the LMA’s request in June 2022 and an additional follow-up request was sent in August 2022. The plaintiff filed suit against the defendant seeking damages. for violation of RESPA, and the defendant moved to dismiss for lack of Article III of the Plaintiff’s Constitution. stop to maintain their activity.
At the end of the motion, the Court first observed that RESPA requires the lenders to take specific actions to respond to the requests of the borrowers, especially instructing the staff: ( 1) submit a written acknowledgment of their receipt of an LMA request within five working days of receipt; and (2) provide a significant written response to the LMA’s request within thirty business days of receipt. Although it was not disputed that the Defendant did not respond to any of the LMA’s requests, the Defendant alleged that it was not liable because the Plaintiff did not suffer an injury based on the constitution. -the fact (because) they are not borrowers or debtors in any way. Remember,” noting that the Mortgage and the Note are “separate agreements that give rise to different rights and obligations.”
The Court agreed, and explained that, “(p) simply, (while) it is a loan that you must pay back to the person who loaned it, () the mortgage is obtained by the creditors the opportunity to take your home if you fail to meet that obligation.” To illustrate this point, the Court summarized the holding given by the Sixth Circuit in the similar case of
Keen v Helson, 930 F3d 799 (6th Cir. 2019), where a husband and wife bought a house together, with both parties signing the mortgage and only the husband signing the deed. Of the
Search later divorced, and the husband took the entire title to the wife and died, later the wife continued to pay even though it was not a debt on the note. The wife eventually defaulted on the payments, requested assistance from the lender through the LMA, was ignored, and was sued for violating RESPA, and her suit was dismissed on the grounds that debtors themselves have sufficient standing to bring a RESPA claim. just signing a mortgage does not make a repayment.
The Court held that the Plaintiffs’ standing argument was substantially the same as that observed therein Search, such as Raphael and Maria who participated in the mortgage – which operated to give the defendant, as a lender, a security interest in the Property – were not parties to the Note . Because of their absence from the Note they have no standing to seek relief under RESPA, because they have no obligation to provide payments, and without such an obligation there is no RESPA violation by defendant. Plaintiffs’ claim was therefore dismissed for lack of Article III standing.
This Opinion emphasizes the different rights and obligations provided by mortgages and financial statements, instruments that are often mistaken by individuals as providing a debt consolidation of the payment of the world. While mortgages provide a security interest in a property, and bonds provide repayment obligations, this Concept emphasizes the importance of proper closing and ensuring that all parties’ names are properly listed on all documents. It also shows the scope of RESPA and the causes of action under the law that flow from the informational documents themselves and not from the mortgage agreements.
The content of this article is intended to provide a general guide to the subject. Specific advice should be sought regarding your particular circumstances.
BEST BOOKS: Money and Accounting from the United States