Significant Foreclosure Decisions:

Significant Foreclosure Decisions: Case Name Cite Court Favorable Decision? Type of 24 C.F.R 203.604 Claim Summary of Decision Inman v. Suntrust Mortgage, Inc. Pfeifer v. Countrywide Home Loans, Inc. 2010 WL 3516309 150 Cal.Rptr.3d 673 California (E.D.) California Court of Appeal (1D, Division 2) Rourk v. Bank of America, N.A. 2012 WL 3745953 Georgia (M.D.) Countrywide Home Loans v. Wilkerson Melon Mortgage Co. v. Larios Federal National Mortgage Association v. Schildgen Lacy McKinney v. Taylor, Bean, and Whittaker Silveira v. Wells Fargo Bank, N. A. (In re Silveira) Young v. Midfirst Bank, N.A. Soto v. Wells Fargo Bank, N.A. 2004 WL 539983 1998 WL 292387 Illinois (N.D.) Illinois (N.D.) 252 Ill.App.3d 984 Illinois Court of Appeals (1D) 937 N.E.2d 853 Indiana Court of Appeals 2013 WL 1867472 Massachusetts (Bankr.) 2011 WL 4543085 Massachusetts (federal court) 2012 WL 113534 Michigan (E.D.) P sought declarative and injunctive relief from foreclosure alleging a breach of the covenant of good faith and fair dealing because 203.604 violations. Removed to fed court on fed. Question jurisdiction Lenders began foreclosing on mortgagor's property without adhering to HUD servicing requirements, as mortgagors did not have a faceto face meeting before commencement of foreclosure. Wrongful foreclosure claim against bank for failure to comply with 203.604, thereby breaching its legal duty under O.C.G.A. 23 2 114 to exercise the power of sale fairly Bank brought motion for SJ. Bank visited home and left a card to arrange a meeting but D's never responded. Bank however did not send a certified letter in the mail. P moved to strike the D's affirmative defenses to foreclosure; one of which was failure to comply with 203.604. D uses failure to comply with 203.604 as an affirmative defense to foreclosure. Magistrate granted SJ for Bank on foreclosure action. McKinney appealed claiming there were genuine issues of material fact regarding whether Bank made a reasonable effort to comply with 203.604. P claimed breach of contract based on HUD regulations that D had not provided P with notice before accelerating foreclosure. Mortgage contract explicitly intended incorporation of all HUD regulations concerning foreclosure proceedings of a defaulted mortgage. This allowed for private right of action against Bank for like of face to face meeting P suing D/Bank for making several claims about his mortgage and subsequent foreclosure proceedings. Of which, one count is the lack of abiding by HUD regs. (face to face interview) Court recognized no private right of action and dismissed fed. claims with prejudice. Denied jurisdiction on state law claims and remanded case back to state court The California Court of Appeal for the First District held that the fact that mortgagors defaulted did not bar them from claiming that mortgagees could not proceed with foreclosure prior to complying with HUD regulations Court denied bank's 12(B)(6) motion because homeowner adequately alleged the claim "It is undisputed here that under Illinois law the failure to comply with HUD's mortgage services requirements is a complete defense to a mortgage foreclosure action." Although Bank visited home, they did not send a certified letter and therefore SJ was denied. All 4 of Melon's arguments to strike this defense were found without merit. Melon's motion for judgment on the pleadings were denied. Court notes that the mortgage at hand was never ensured by HUD and so this defense does not preclude SJ Appeals court held that regulations regarding a mortgagee's servicing responsibilities with respect to HUD insured mortgages were binding conditions precedent and that genuine issues of material fact did exist regarding whether Bank complied P's allegations that D breached their contract by not following HUD guidelines by failing to send notice prior to foreclosure survived D's motion to dismiss. Court indicated that there was no servicing office within 200 miles of the property and thus Bank was excluded from face to face interview the court stated that the National Housing Act and attending regulations do not expressly or implicitly create a private right of action to mortgagors for a mortgagee's noncompliance with the Act or regulations. Bank of America, N.A. v. Dennis 2013 WL 1212602 Michigan (E.D.) Pendracki v. BAC Home Loans Servicing, LP 2012 WL 3887518 Michigan (E.D.) Defendants/Counter Plaintiffs alleged failure to meet 203.604 HUD servicing guidelines by not having face to face meeting P claimed violation of HUD regulations for failure of D to conduct face to face meetings private cause of action under HUD regulations. District court held that Defendants/Counter Plaintiffs failed to establish HUD regulations sufficient to avoid foreclosure. Plaintiff/Counter Defendant's motion to dismiss granted. The District Court held that the P homeowner had no private right of action under 203.604 and the complaint was dismissed.

Agabay v. Wells Fargo Bank, N.A. Baumgartner v. Wells Fargo Bank, N.A. Talon v. BACK Home Loan Servicing LP 2012 WL 3029825 Michigan (E.D.) 2012 WL 2223154 Michigan (E.D.) 2012 WL 855975 Michigan (END.) P claimed 203.604 violations because D failed to attempt to meet P face to face about loss mitigation alternatives. P claimed D violated 203.604 regulations after P fell behind by three monthly payments. The District Court found that there was no private right of action available for the P for the D's noncompliance with 203.604. D's motion to dismiss granted. The District Court held that P has no private cause of action under 203.604, and that a failure to comply with HUD servicing regulations can be an affirmative defense but cannot form the basis of the claim. P's claim was dismissed. Mortgagors brought action against mortgagee's assignee, seeking to prevent foreclosure and Federal regulations in and of themselves cannot create a alleging multiple state law claims, one being not private cause of action unless the action is at least implied following HUD regs (specifically face to face from the applicable statute interview.) Defendant moved to dismiss. Shelton v. Wells Fargo Bank, N.A. (In re Shelton) Prince v. US Bancorp 481 B.R. 22 Missouri (W.D. Bankr.) 2010 WL 3385396 Nevada (federal court) Debtor claimed that Bank failed to comply with face to face meeting as required by 203.604 and that Bank foreclosed without making a good faith review of debtor's requests for loss mitigation relief. P filed complaint against Bank alleging 11 causes of action including 203.604 claim. Bank brought a motion to dismiss. United States Bankruptcy Court denied summary judgment for Wells Fargo Bank for breach of the duty of good faith and fair dealing and breach of contract. 6 of the 11 counts were dismissed (including 203.604 claim) because P made no factual assertions to substantiate the legal conclusion that the mortgage in question in this case was insured by the FHA. (NOTE: The remaining counts were taken up by the court at a later date but these do not involve 203.604) Washington Mutual Bank v. Teodorescu LaSalle National Bank v. Johnson Wells Fargo Bank, N.A., v. Favino Shirk v. JPMorgan Chase Bank Corp, N.A. (In re Shirk) Green Tree Servicing, LLC v. Eddie 2005 WL 3108231 New Jersey (Superior Court, Appellate Division) 2006 WL 551563 New Jersey (Superior Court, Chancery Division) 2011 WL 1256771 437 B.R. 592 U.S. Bank v. Stewart 2008 WL 4803637 Ohio (N.D.) Ohio (S.D.) 2013 WL 1867023 Ohio (S.D.) Ohio Com. Pl. Montgomery County substantive / In a foreclosure action, one of D's affirmative defenses was Bank's failure to comply with 203.604. Bank did not provide any evidence that it complied with 203.604 and relied only on the fact that the mortgage premises subject to its purchase money mortgage Favino/D alleged court had SM jurisdiction through 203.604 because FHA/HUD has a duty to police the mortgage market place and a duty to take appropriate action to police the mortgage servicing industry to generate the smallest possible loss to the FHA/HUD Chapter 13 debtors brought cause of action against lenders for misrepresentations and violations of TILA. Among the claims was a 203.604 action P requested the case be remanded to state court for lack of subject matter jurisdiction because it failed to represent a federal question. Bank/P brought motion for SJ, D brought a cross motion for SJ based in part that Bank had not attempted a face to face interview. Appeals court confirmed lower court's judgment in that, among other things, there was no private cause of action available to D for HUD violations Bank's motion for SJ denied because "based on the submitted documents and arguments, this Court cannot determine if Plaintiff has unclean hands warranting the denial of the equitable remedy of foreclosure" D did not provide facts to support claim of entitlement to HUD regulations. D did not allege that the te or the LMA is FHA insured but only provided elements of HUD regulations. Also, court said there was no private right of action. D's counterclaim dismissed and case dismissed for lack of SM Jurisdiction The court noted that there was no private right of action for non compliance with HUD regs. The District Court held that the presence of a violation of a federal statute was insufficient to establish federal question jurisdiction. Here, D was seeking relief based on remedies available under Ohio law, not federal law. P's motion granted. The court rejected Bank's claim that they were exempted from interview because of office outside 200 mile radius; however, court concluded that D would not have cooperated in a face to face interview. Court awarded SJ to bank. Very fact specific.

GMAC Mortgage of Pennsylvania v. Gray Fifth Third Mtge. v. Orebaugh Wells Fargo Bank, N.A., v. Isaacs Washington Mutual Bank v. Mahaffey U.S. Bank Natl. Assn. v. Stanze 1991 WL 268742 (10D) 2013 Ohio 1730 2010 Ohio 5811 (12D) (1D) 154 Ohio App.3d 44 (2D) 2013 Ohio 2474 Wells Fargo v. Phillabaum 950 N.E.2d 245 U.S. Bank, N.A. v. Detweiler 191 Ohio App.3d 464 U.S. Bank, N.A. v. Detweiler CitiMortgage v. Kinney BAC Home Loans Servicing, LP v. Taylor 2012 Ohio 73 2012 Ohio 2896 2013 Ohio 355 (2D) (4D) (9D) substantive substantive D raised failure to comply with 203.604 as an affirmative defense to foreclosure and appeal from SJ for bank. D raised a 24 C.F.R 203.604 defense on the grounds that the P inadequately notified her of her default payment because the amount in the notice was incorrect, and further, the P rejected her tendered payments. Bank/Appellant, argued that because they had no branch office with competent servicing personnel within a 200 mile radius of the property, they were excused from the face toface interview. Appellant brought action against bank's SJ awarded at trial. Appellant argued that Bank made no reasonable effort to conduct a face toface interview as required by HUD regulations Appellant homeowners appeal summary judgment decision against them finding that they waived their affirmative defense of bank failing to arrange face to face meeting because it was not properly pleaded in the answer. Bank/Appellant argued that although there was a branch within 200 miles of appellant, there was no mortgage service office within that range and they were therefore excused from the interview. Homeowner argued that non compliance with 203.604 is a condition precedent to foreclosure. Bank asserted mortgagor's filing of chapter 7 bankruptcy excused them from attempting a presuit, face to face interview Appellant mortgagors appealed a judgment in favor of appellee as they did not conduct a faceto face interview as required by 203.604 or notice of default. D singed a promissory note secured by a mortgage, which D later defaulted on. SJ was granted to P, and D appealed claiming failure to comply with face to face meeting regulations of 203.604 as defense to foreclosure from defaulting on their loan. The Court noted the failure to comply with 203.604 which is mandatory and has the force and effect of law can be raised in a foreclosure proceeding as an affirmative defense. However nothing in the record indicated whether a branch office was located within 200 miles. Court reversed SJ for the bank and remanded. The Twelfth District found that the bank performed all of the prerequisites under the note and mortgage. Because this was not an FHA loan, the pre foreclosure requirements contained in 24 C.F.R. 203, Subpart C did not apply to this case. The court decided that the regulation was NOT ambiguous and that Bank had branch offices within the radius. Court affirmed the trial ruling in favor of the homeowner The court held that 1.) face to face meeting IS required. 2.) There was a nearby branch office. Reversed and Remanded Court affirmed judgment in favor of bank because lack of face to face interview wasn't raised in answer as affirmative defense or failure to perform a condition precedent. First, the Court found that Bank did not provide evidence suggesting there was no mortgage officers in Hamilton County and the closest service center was in Maryland. Second, the court interpreted the exception in the reg. to require no "service" branch OR "mortgage office" within 200 miles of property. Here there was a service branch within 200 miles. Trial court's judgment affirmed Court agreed that a bank must establish that it sufficiently complied with 203.604 as a condition precedent to foreclosure because HUD regulations are incorporated into the default or acceleration provisions of the te and Mortgage. Bank's motion for summary judgment awarded twice at trial level, overruled twice at appeal. Appellant's motion for SJ charging a lack of condition precedent was granted and bank's foreclosure action dismissed. The Fifth Circuit held that a question of fact existed as to whether a face to face interview was conducted and the case was remanded to the trial court. The Ninth Circuit held that SJ was not appropriate because a bank cannot commence foreclosure where noncompliance of HUD regulations, and in this case, failure to comply with part (b) of 203.604 has occurred. Here, there was no evidence a face to face interview was attempted to be conducted. Reversed and remanded.

Teeples v. JPMorgan Chase 2013 WL 1898287 Texas (E.D.) Johnson v. JPMorgan Chase Bank, N.A. Baker v. Countrywide Home Loans Franklin v. BAC Home Loans Servicing, L.P. Mitchell v. Chase Home Finance, LLC. Buis v. Wells Fargo Bank, N.A. Holloway v. Wells Fargo Bank, N.A. substantive 2013 WL 2554415 Texas (E.D.) 2009 WL 1810336 2011 WL 248445 2008 WL 623395 401 F.Supp.2d 612 Texas (N.D) Texas (N.D.) Texas (N.D.) Texas (N.D.) / 2013 WL 1189215 Texas (N.D.) Enis v. Bank of America, N.A. 2012 WL 4741073 Texas (N.D.) Montalvo v. Bank of America Corporation 2012 WL 39829 Texas (W.D.) Breach of contract claim involving 203.604 filed in state court and removed to federal court Breach of contract for non compliance with 203.604. Chase filed a motion to dismiss. P brought a wrongful foreclosure action against Bank on a number of bases including that the Bank did not comply with 203.604 as incorporated by reference in the note and deed. Court found that removal from state court was not proper based on federal question jurisdiction because the alleged violations of HUD regulations fall within the state law breach of contract claim, an area traditionally handled by states. (Removal was proper based on diversity.) Washington Mutual owned the loan when the homeowner was three months behind with the payment. The loan was subsequently transferred to Chase via the FDIC under the Purchase and Assumption Agreement, which disclaimed any liability for a purported breach. Therefore, there is no cause of action against Chase. Court also found, "Because Plaintiff admits that she failed to perform her own obligations under the te and Deed of Trust, she is precluded from bringing a breach of contract action for Defendant's subsequent alleged failure to comply with HUD regulations prior to accelerating the te." Also dismissed on other case specific grounds. Court recognized that P cannot sustain a cause of action for wrongful foreclosure based solely on the 203.604 violations and the extent of P's claim based on those violations were dismissed. The court assumed this breach of violations was P claimed breach of contract and wrongful contractual and BAC did not argue against this. Court said foreclosure alleging that BAC had breached the BAC could not breach contract simply because P was in mortgage contract by not conducting a face to default. While some of P's original complaint was face interview. BAC moved the case to federal dismissed, BAC's motion to dismiss the breach of contract court and moved to dismiss P's original petition. Bank brought motion for SJ on foreclosure proceeding in which P's response included claim for Bank's failure to comply with 203.604 P brought action in state court claiming Bank had not complied with HUD regs and sought a declaration that Bank had not complied with deed. Bank removed to fed court on fed question jurisdiction. P sought remand P claimed HUD violations were present due to lack of 203.604(b) notice requirements from D failing to contact him or make attempts at faceto face meetings Claim for anticipatory breach of contract related to the deed of trust (mortgage) related to RESPA and 203.604(b). P alleged that BAC had breached the deed of trust by failing to abide by HUD regulations and meeting with her face to face claim was denied. Court dismissed P's claim with prejudice and granted SJ for Bank noting that even had P been able to bring this claim, Bank had no servicing personnel within 200 mile radius to meet with P and thus were excused from complying with HUD regs Fed question jurisdiction not appropriate. Remanded to state court The District Court held that since none of the alleged 203.604 violations were specifically incorporated into the note or deed of trust, and P failed to state facts or cite to a provision in the loan documents to show a violation, the claim for HUD regulation violations was dismissed. In ruling on the bank's 12(B)(6) motion, the court dismissed the anticipatory breach of contract claim because the deed of trust did not include provisions requiring compliance with the 203.604(b), so there was no contractual obligation the bank could repudiate by violating the regulation. Although P had cited to the wrong regulation, the court made a point to say that even if cited correctly, BAC did not have a branch office within a 200 mile radius of the property that was staffed with people familiar to service issues

Martinez v. BAC Home Loans Servicing, L.P. Kersey v. PHH Mortgage Corporation Kersey v. PHH Mortgage Corporation Lee v. CitiMortgage, Inc. Kluxen v. PNC Mortgage Bagley v. Wells Fargo Bank, N.A. King v. Virginia Housing Development Authority 777 F.Supp.2d 1039 Texas (W.D.) substantive 682 F.Supp.2d 588 Virginia (E.D.) 2010 WL 3222262 739 F.Supp.2d 940 2010 WL 3603493 Virginia (E.D.) Virginia (E.D.) Virginia (E.D.) substantive substantive substantive 2013 WL 350527 Virginia (E.D.) 2012 WL 6757265 Virginia Circ. Court (4th Cir.) Mathews v. PHH Mtge. Corp. 283 Va. 732 Virginia Supreme Court Mortgagor brought action in state court seeking temporary and permanent injunctive relief from foreclosure stating a 203.604 claim. Bank moved to federal court and P moved to remand as the FMV of the house is over $75,000, the amount to be considered should be the amount of equity (less than $75k) therefore fed. court lacks diversity jurisdiction P brought claim for declaratory judgment against PHH under Federal Declaratory Judgment Act. P sought declarative judgment that Bank had not complied with deed of the trust (violated conditions set forth in 203.604) and could thus not proceed with foreclosure. P filed complaint in circuit court alleging 203.604 violations as incorporated into deed of trust. Bank removed to fed. court for federal question jurisdiction as case involved federal regulations. P moved to remand back to state court. P filed one count complaint in state court alleging Bank did not comply with 203.604 and thus is not entitled to foreclosure proceedings. Bank removed to fed. Court. D claimed P's right to relief under state law requires resolution of a substantial question of federal law. P filed motion to remand back to state. P claimed a 203.604 defense that D failed to attempt to arrange a face to face meeting after they fell three months behind on their mortgage Breach of contract claim involving 203.604(b) following foreclosure sale. Appellant landowners sought declaration that their foreclosure would be void due to Appellee trustee's failure to comply to HUD regulations. Trustee alleged it was exempt from the face toface meeting regulation because it did not have a branch office within 200 miles of the property. The court decided that the P's request for relief leads the Court to agree the object of the litigation is plaintiff's home and the fair market value of his home is the proper measure of the amount in controversy. Motion to remand is denied Court finds that the lack of a private right of action under National Housing Act and HUD regulations does not preclude P from brining a declaratory judgment action regarding 203.604. Court also goes into lengthy discussion of the proper deference due HUD's less formal interpretations of its formula regulations. Letters and statements on HUD's website are not deserving of any deference. Further, 203.604(c)(2) is unambiguous, and the phrase "branch office" does not include only "servicing branch offices" but "any branch office." This opinion was later vacated, but it is unclear why. Court decided case was contractual in nature and remanded to state court The court denied federal question jurisdiction because although requiring analysis of a federal regulation, the suit related to rights and obligations arising under the parties' contract, and such rights and obligations were governed by state law. Court also denied diversity jurisdiction as the pecuniary value and costs to both parties are simply too speculative and immeasurable to satisfy the amount in controversy requirement. (Policy favors remand where SJ jurisdiction is doubtful) Court said issue was contractual in nature and not a substantial question of federal law. Motion to remand granted The District Court held that the HUD regulations are a condition precedent to foreclosure and that P sufficiently alleged that D failed to satisfy the 203.604 condition of attempting to conduct a face to face meeting, and breached the Deed of Trust. The D's motion to dismiss was denied. Failure to follow 203.604(b) is not a sufficient ground to award compensatory damages or to set aside a completed foreclosure sale to a third party. The Supreme Court of Virginia held that the fact that the borrower was in breach first does not allow the trustee to circumvent the 203.604 regulations; the phrase "branch office" in 203.604 included both a servicing office and a loan origination office. Face to face meeting prior to foreclosure is a condition precedent, and "branch office" as stated in the HUD regs means servicing office AND loan origination office

Squire v. Virginia Housing Development Authority 2014 WL 1499557 Virginia Supreme Court Bates v. JP Morgan Chase Bank 2013 WL 5755585 Georgia (M.D.) Freedom Mtge. Corp. v. Vitale 2014 WL 1413874 Wells Fargo Bank v. Goebel 6 N.E.3d 1220 PNC Mtge. V. Garland 2014 WL 1325908 (2D) (7D) Breach of contract claim involving 203.604 where the foreclosed property had been sold to a third party. Plaintiff sought damages for breach of contract based on allegations that that defendant failed to make efforts to set up a face to face meeting before initiating foreclosure proceedings. Plaintiff claimed defendants were not entitled to summary judgment because they did not comply with the terms of the mortgage, specifically the face to face meeting provision. Wells argued for summary judgment based on the assertion that because the face to face meeting requirement of 203.604 is an affirmative defense mortgagee failed to create a genuine issue of material fact 203.604 is clear about the face to face meeting being a condition precedent to foreclosure, and failing to make efforts to arrange one constituted a breach of contract. The court upheld the lower court's refusal to rescind the completed foreclosure absent evidence of fraud or convincing support that buyer was not a bona fide purchaser. Court held failure to adhere to 302.604 does not give rise to a private right for damages, but that it may give borrower an "equitable shield" against foreclosure proceedings. Court held that despite a meeting never taking place the mortgagee had fulfilled its obligations under 203.604 because it made reasonable efforts to do so by sending a certified letter and making a visit to the property. The court took on the decisive issue of whether the face to face meeting requirement is a condition precedent (where bank bears burden to prove it has complied) or rather an affirmative defense (where mortgagor bears the burden of proof). The court declared the requirement an affirmative defense creating a split of authority with the 5D (US Bank v. Detweiler) Garland appealed a grant of summary judgment The court widened the split of authority amongst the Ohio arguing that failure to meet the 203.604 courts by declaring the face to face meeting requirement requirement was a condition precedent and that a condition precedent rather than an affirmative defense, there existed genuine issues of fact about rejecting the second district's reasoning that construing it whether the bank had complied. as a condition precedent is "unduly harsh" to the lender HSBC Bank USA, Natl. Trust Co. v. Teagarden 6 N.E.3d 678 CitiMortgage v. Cathcart 2014 WL 705764 US Bank Natl. Assn. v. Martz 2013 WL 5635986 Liberty Savs. Bank, F.S.B. v. Bowie 2014 WL 1344589 (11D) (11D) (9D) substantive substantive substantive Bank argues that they fall under one of the exceptions to the face to face meeting requirement because they do not have an adequate branch office within 200 miles of the mortgaged property. The bank relies on their interpretation of a FAQ page maintained by HUD Defendant Appellant argues that summary judgment was improper because bank failed to present evidence that they had complied with all conditions precedent to foreclosure, specifically the face to face meeting. Defendant Appellant argues that summary judgment was improper because bank failed to comply with the HUD regulations, one of them being 203.604. Defendants argue that the provision is applicable because a provision in their mortgage states that it is to be governed by federal law. Defendant appealed entry of SJ stating that whether Bank complied with 203.604 was a genuine issue of material fact as an assignment of error. The court rejected the bank's interpretation of what constitutes a proper branch office, holding that a branch office need not have staff members trained in HUD mitigation regulations to be considered a branch office within the 200 mile distance requirement. The court held that because Appellant failed to deny with specificity and particularity that Appellee failed to meet the conditions precedent, she effectively waived her right to raise the issue and could not do so for the first time on SJ. The court held that while the mortgage was expressly governed by federal law, because the mortgage was not federally insured defendant appellants could not use the bank's failure to comply with HUD regulations as a defense to the foreclosure action. The court punted on the issue of whether or not the faceto face meeting requirement had been met because the bank failed to make an argument that defendants had waived or admitted the defense in their motion for SJ. The court also noted the split of authority on the CP v. AD and refused to decide either way.

MFRS. Hanover Mortgage Corp. v. Ballard Manufacturers Hanover Mortgage Corp. v. Chicago Title & Trust Co. 1985 WL 3075 Illinois (N.D.) 1985 WL 3617 Illinois (N.D.) Sears v. Bank of America 2013 WL 6199197 California (E.D.) McDonald v. Green Tree Servicing LLC. substantive 2014 WL 1260708 Michigan (ED) Rabe v. Wells Fargo Bank 2013 WL 5458068 Texas (ED) Condel v. Bank of America 2012 WL 2673167 Virginia (E.D.) / CitiMortgage v. Roznowski 2012 WL 75950 Wells Fargo Bank v. Aey 2013 WL 6500133 (7D) substantive Defendant argues that Bank is not entitled to SJ because it had failed to comply with the HUD mitigation regulations, one being 203.604 Defendant raised 203.604 as an affirmative defense to SJ for the foreclosure action. Plaintiff raised bank's failure to comply with 203.604 as a defense to foreclosure proceedings on his property. Defendant bank argued that plaintiff lacked standing to sue, but plaintiff insisted his claim was valid because the HUD regulations were incorporated into his mortgage Plaintiff raises several claims against Bank, one being that they failed to comply with 203.604 Claim for breach of contract for non compliance with 203.604. Defendant claimed that the lower court erred when it refused to enforce 203.604 Borrower claimed she was never offered a face to face meeting with the lender pursuant to 203.604 creating s a genuine issue of material fact sufficient to defeat lender's motion for summary judgment. The court decided for defendant holding that bank did not satisfy the face to face meeting because the lender met only with one of the mortgagee and not both. The court also rejects plaintiff's argument that they are excused from the interview requirement because a payment plan was in the works. The court holds that since payments were not current plaintiffs did not meet the requirements for the exception. The court decided for Plaintiff Bank holding that even though a interview did not take place the Bank made reasonable efforts to make the meeting happen including two trips to the property and several more attempts to reach out by telephone and in writing. On the particular issue of 203.604 as a defense the court held that plaintiff's complaint did not meet pleading standards because it lacked facts such as where he resided and the exact language of the deed of trust. His claim was dismissed with leave to amend. On the issue of 203.604 the court held it is well settled that there is no private cause of action to enforce HUD mortgage regulations and dismissed the claim. With respect to the office within 200 mile requirement that court held that the HUD website definition was not entitled to deference and stated that any branch office within 200 miles triggered the obligation. The court dismissed the appeal because it determined that the judgment being appealed was not final. The court found that once the borrower asserts that they were not offered such a meeting, the burden is on the bank to assert which exception(s) to the required meeting applied. As a result SJ in this case was improper because defendant proved there was a genuine issue of material fact as to whether the meeting requirement was satisfied or not. Goodwin v. CitiMortgage 2013 WL 449903 Michigan (WD) Hewitt v. Bank of America 2013 WL 3490668 Michigan (WD) Lindsey v. JP Morgan Chase 2013 WL 2896897 Texas (ND) Plaintiff borrower sough declaratory relief on the basis that bank did not meet the condition precedent imposed by 203.604 Plaintiff argued that Bank failed to comply with 203.604 Plaintiff argued that the HUD regulations were incorporated into the mortgage and Bank's failure to comply with 203.604 gave rise to a claim for breach of contract. The court held that it is well settled in the state that failure to comply with the HUD regulation does not give rise to private cause of action and consequently dismissed plaintiff's claim for declaratory relief. Court dismissed the claim based on the settled rule that non compliance with the HUD regulation does not give rise to private cause of action. Court stated that while non compliance does not give rise to a private cause of action, if the terms are incorporated into the mortgage a violation can give rise to breach of contract claim. The court ruled that the terms in the contract were express and sufficient to provide a reasonable basis for predicting that plaintiff could recover against Bank under a breach of contract claim.

Cadez v. Residential Credit Solution, Inc. Flagstar Bank FSB v. Rodrigues 2012 WL 3005535 Franklin v. BAC Home Loans Servicing, L.P. Talton v. BAC Home Loans Servicing Everhome Mtge. Co. v. Rowland 2008 WL 74698 Leggette v. Washington Mutual Bank Mortgage Electronic Registration Systems, Inc. v. Leslie Greene v. US Dept. of Housing and Urban Development Mortgage Associates, Inc. v. Smith 2013 WL 2238486 Michigan (ED) Superior Court of Connecticut substantive 2012 WL 2679496 Texas (ND) 839 F.Supp.2d 896 Michigan (ED) (10D) substantive 2005 WL 2679699 Texas (ND) 2005 WL 1433922 Banker Life Co. v. Denton 120 Ill.App.3d 576 Superior Court of Connecticut substantive 1991 WL 200132 Pennsylvania (ED) 1986 WL 13730 Illinois (N.D.) Appellate Court of Illinois (3D) Plaintiffs challenged the foreclosure on their property based on bank's violation of 203.604. On of the defendants was removed and as a result plaintiff removed the federal law claims from their complaint and moved to remand the case. In objection to the Bank's motion for SJ plaintiffs argued that they bank failed to comply with 203.604 Plaintiff brings a breach of contract claim alleging that Bank failed to comply with the 203.604 meeting requirement. Plaintiff filed suit against Bank claiming violation of federal HUD regulation 203.604 and that the non compliance requires the court to enjoin the foreclosure. Plaintiff raised a 203.604 claim on appeal Plaintiff alleged that defendant bank was in breach of contract based on its failure to comply with 203.604 Defendants moved to strike plaintiff's complaint arguing in part that defendant violated 203.604 In opposition to a motion for SJ plaintiff argued that Defendant bank had an office within 200 miles of the property and so was obligated to comply with 203.604. Plaintiff bank appealed a decision by the lower court to grant SJ in favor of the defendantborrowers based on this affirmative defense that bank did not comply with 203.604 Defendant raise failure of plaintiff to comply with 203.604 as an affirmative defense. Court held that plaintiffs were unable to show that their case should be remanded because the removal properly adhered to the FRCP. Court held that defendant's argument was insufficient to defeat the motion for SJ because defendants simply asserted the existence of a disputed factual issue without providing any evidentiary foundation to demonstrate the existence of such a genuine issue of material fact. In light of plaintiff's apparent admission that Bank had called her, sent her a letter, and made a trip to her property in an attempt to arrange a meeting, the court granted bank's motion for SJ on the claim. Court dismissed the claim given that the plaintiffs were unable to point to a federal statute to support their claim and in light of the settled rule that there is not a private right of action for breach of the HUD regulation. The court declared the 203.604 issue moot because it reversed the lower court on a factual dispute over the real party in interest. The court held that under the circumstances the parties had a genuine and reasonable disagreement over the validity, construction, and effect of the HUD regulations. The dispute was based on the interpretation of the "branch office within 200 miles" exception and whether a loan procurement office (rather than a loan service office) was adequate. Court denied the motion to strike stating "where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial" The court held that construing the facts in the light most favorable to the non moving party and given that the court was without evidence as to whether there was a branch office within the 200 miles or not the motion for SJ was denied. Court refused to vacate the lower court judgment holding that bank had clearly not complied with the HUD regulation. The court rejected plaintiffs submission of a certified mailing list as satisfying the mail requirement. The court held that the language of the regulation is definite enough that mortgagees must comply and that "the failure to comply with these servicing regulations which are mandatory and have the force and effect of law can be raised in a foreclosure proceeding as an affirmative defense"

Wells Fargo Bank v. Estaman 2011 WL 5077860 Circuit Court of Illinois Chase v. Hodge 2014 WL 1710849 Court of Common Pleas of Pennsylvania M&T Bank SBM v. Dibbles 2012 WL 8968051 Housing Court of Mass. Manufacturers Hanover Mortgage Corp. v. Snell 142 Mich.App. 548 Court of Appeals of Michigan Everbank v. Chacon 2013 WL 4805006 Housing Court of Mass. Addison v. US 2014 WL 910196 Virginia (E.D.) Allen v. Bank of America 2014 WL 1116701 Texas (ND) substantive PNC Bank v. Rodriguez 013 WL 2144930 Ill. Cir. C Circuit Court of Illinois Wells Fargo Bank v. Dumm 2014 WL 3530859 JPMorgan Chase Bank v. Burden 2014 WL 2918455 (4D) (9D) NO Defendants filed a motion to dismiss the complaint against them on the grounds that Bank failed to perform the condition precedent meeting pursuant to 203.604 Defendant borrower raised bank's noncompliance with 203.604 in opposition to a motion for SJ. Defendant borrower raised bank's noncompliance with 203.604 in opposition to a motion for SJ. Defendant raised the so called "mortgage servicing defense" against bank claiming that the bank had failed to comply with the HUD regulations, one being 203.604 Defendant argues that bank did not comply with the HUD regulations and as a result the foreclosure was void ab inito and bank did not acquire good title to the property Plaintiff contends that the foreclosure on his property was wrongful because the bank did not fulfil all of its obligations pursuant to the HUD regulations including 203.604. Plaintiff brought claim for specific performance citing bank's violation of HUD regulation 203.604 Defendant filed motion to dismiss alleging Bank had not followed the proper pre foreclosure procedure by failing to meet the interview requirement proscribed by 203.604 Bank filed foreclosure action against Dumm and Dumm responded with counterclaims, one being the bank's failure to hold a face to face meeting. Defendant's asserted an assignment of error based on JP Morgan's failure to comply with 203.604. The court granted the motion to dismiss holding that Bank's failure to comply with the HUD regulation provided defendants with a legitimate defense. The court rejected plaintiffs argument that they did not have a proper branch office within 200 miles of the property and thus fell under one of the exceptions the court held that any branch is adequate even if it does not have service staff present. Court found that bank did not comply with the regulation. The court rejected bank's argument that since defendant had been working with the company's retention center they had satisfied the meeting requirement. The court remanded the case stating that SJ was improper Court rejected bank's argument that they held superior title to the property and were entitled to foreclose upon it. The court ruled that since the HUD regulations were specifically incorporated into defendant's mortgage they bank was obligated to comply. The court viewed the regulations as non binding policy and refused to recognize the defense as legitimate noting "We must remember that, as judges, we lack authority to promulgate mortgage regulations under the guise of equity merely because we agree with an agency's nonbinding, interpretive statements of policy" The court found that 203.604 was incorporated into the mortgage and was not complied with based on bank's failure to conduct or attempt to conduct the face to face interview. The court rejected Bank's assertion that it was exempted form the requirement because it did not have a branch office with staff capable of conducting the interview. the court found that since the bank had two branch offices and one main office within 200 miles of the property it was not exempt from complying with the interview provision of 203 604 The court granted defendant bank's motion to dismiss because plaintiff "alleges no facts indicating that Defendant Flagstar (bank) failed to consider the comparative effects of its elective servicing actions" Court granted plaintiff's motion to remand deciding defendant failed to meet its burden to prove that federal jurisdiction existed over plaintiff's action. Court rejected Bank's interpretation of "branch office" as being only "service" branches and held that because the term is unambiguous it applies to all branch offices. Accordingly the court granted defendant's motion to dismiss. The court was not persuaded by Dumm's assertions that the face ace to face meeting was a condition precedent to foreclosure. The court also held that even assuming it was a CP, Dumm did not prove submit enough evidence to prove the bank's non compliance. Court held that the mortgage note did not have any language referencing the FHA and so the HUD regulations did not apply to JP Morgan.

Letvin v. Lew 2014 WL 2865143 Michigan (E.D.) Plaintiff sued two banks on a laundry list of Court granted banks' motion to dismiss without leave to substantive violations, one of which was non compliance amend based on plaintiffs failure to satisfy pleading with the HUD regulations standards. Court upheld lower court ruling stating that JP Morgan, Johnson v. JPMorgan Chase US Court of Appeals 5th who obtained the from Wamu long after the default was 2014 WL 2506231 Appeal from the Eastern District of Texas Bank, N.A. Circuit not liable for the previous owner's failure to comply with the servicing requirements OneWest Bank v. Albert 2014 WL 2156777 Defendant brought counterclaim against bank Court dismissed the claims holding that there was no based on their alleged failure to comply with evidence that Defendant's mortgage was insured by the HUD servicing regulations FHA and as such the HUD regulations did not apply