foreclosure defense

“Who could have predicted?”

Roland Arnall. Senator Barack Obama. Stern words. 2006 edition.

WASHINGTON — As head of the Justice Department’s civil rights division, Deval L. Patrick brought a case against Roland E. Arnall’s mortgage lending company for allegedly piling extra charges onto home loans for minorities, women and the elderly.

Fixed that first ‘problem’ by reaching a settlement.

Arnall’s firm ultimately agreed to settle a government lawsuit by paying $4 million to compensate borrowers and to teach consumers how to shop more smartly for loans.That was nearly a decade ago. Today, new allegations of unfair lending practices are dogging Arnall and his ACC Capital Holdings Corp., casting a shadow over his nomination as ambassador to the Netherlands.

Luckily this time at least on of Arnall’s board of directors were ready to step up for him.

But in a twist, Patrick has emerged as one of Arnall’s stalwart supporters. Patrick sits on the board of Ameriquest Capital Corp.’s parent company and recently wrote the Senate Foreign Relations Committee on Arnall’s behalf.

Other words and phrases may come to mind instead of the word twist.

“I don’t think it sends a good message that an ambassador to an important ally like the Netherlands has a cloud hanging over him,” said Sen. Barack Obama (D-Ill.), an African American member of the Senate Foreign Relations Committee.

So is the “cloud” the “problem” which has not ‘fixed‘ settled, or that the nominee might be subject to prosecution?

So as the nomination stalled pressure was put on Arnall and Ameriquest the DOJ to hurry up and get things fixed.

Behind the scenes, the lender is trying to nail down a $325-million settlement that would break the logjam and probably assure Arnall’s confirmation.

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The next event in the surprising chain of events was prosecution another settlement.

WASHINGTON — Monday’s settlement of predatory lending allegations against Ameriquest Mortgage Co. removes the major hurdle that blocked company founder Roland E. Arnall from becoming U.S. ambassador to the Netherlands….

Getting on board:

Senate Democrats, led by Paul S. Sarbanes of Maryland, opposed Arnall as long as Ameriquest remained under investigation by the attorneys general and terms of an accord had yet to be spelled out. Monday’s deal transforms the picture in his favor.

“Sen. Sarbanes has indicated that if Mr. Arnall would settle this matter with the attorneys general, he would not object to or seek to block moving forward on this nomination,” Jesse Jacobs, a spokesman for Sarbanes, said Monday.

A similar sentiment came from other Democrats on the Senate Foreign Relations Committee. “Because a settlement was reached, Sen. Obama will not seek to block Mr. Arnall’s nomination,” said Tommy Vietor, a spokesman for Sen. Barack Obama (D-Ill.), one of Arnall’s tougher questioners on the panel. link

In February 2006 the second settlement bought allowed Arnall to be confirmed.

The man who presided over those practices was by then already packing his bags. In February, the Senate Foreign Relations Committee unanimously confirmed Ameriquest’s founder, Roland Arnall, as ambassador to the Netherlands. Arnall and his wife, Dawn, have given more than $6 million to Republican candidates and organizations since 2000; the Arnalls were honorary finance chairs of the president’s second inauguration.

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With all due respect to Prof. Levitan, his comment is over the top. This opinion is by a presiding judge in a large circuit. He has responsibilities to his judges to help them figure out how to deal with cases where novel, complicated arguments and fact patterns are being presented. I don’t know him, or much about him other than his abreviated CV, but he is in a position where he has incentives to get it right more than to prove that he’s right. There is a difference, and it’s a difference between being on the bench and being an academic (no disrespect, Prof. Levitan). Judges get respect from their peers for being helpful in moving cases along. Professors get attention by being different.

If the judge is wrong, he has the case and the basic rules set up pretty well for an appeal and the issues will be pretty clear. I don’t know if addressed all the claims by Ms. Congress, but I don’t think he needed to. The choice of law and enforceability of the note issues were pretty fatal.

This paragraph of Prof. Levitan’s seems almost entirely incorrect:

“Perhaps the most important thing to note about the opinion is what isn’t there. There was no consideration of the chain-of-title issue in the opinion. Let me repeat, the court said nothing about whether there was proper chain-of-title in the securitization. Instead, the court avoided dealing with it. That means that this ruling isn’t grounds for sounding the “all clear” on chain-of-title. At best, it is grounds for arguing that homeowners won’t be able to raise chain-of-title problems. As we’ve seen with Ibanez, that’s clearly incorrect, and a closer look at the Congress ruling shows that it might be an Alabama special, not applicable elsewhere.”

Which chain of title? The security interest or the note? As for the note, the court essentially said ownership of the note doesn’t matter when a party has enforcement rights. Prof. Bloom said as much in his testimony.

As for homeowner defenses, I disagree with Prof. Levitan because this case clearly does allow them at an eviction trial, and as I said earlier, allows them a pretty broad path. I see this as a homeowner win, or at least homeowner-favorable.

As for applying Ibanez, the key fact in that case was that there was no prior assignment of the security interest before the foreclosure process began (and the court was extremely liberal about how that could have happened, but still found that it hadn’t – kind of a game over for USBank), and that USBank tried to fix it after the fact, which it couldn’t. This opinion is often egregiously misrepresented as requiring recorded assignments in Mass. – it explicitly does not. It is also cited as involving MERS. It definitely does not, but it may well be a very pro-MERS case in application.

As for the applicability, state district court decisions are hard to cite for authority anyway, and usually a sign that 1) you’re reaching for anything, anything (aka “as some court somewhere held”); or 2) that you’re not familiar with in-state authority. At the district court level, I can only remember one time that I cited out-of-state law (Maryland, and I did so very reluctantly having lived there), and I don’t remember ever having other state cites used against me. I have a strong bias against it unless it’s absolutely necessary. In practice, too much involves statutes that are not perfectly comparable to other states, for one. But, in the case I used, the issue was exactly what I was looking for, a mortgagee’s obligation after receiving a payoff demand for an odd-ball lien securing two notes, and the mortgagee only provided one account, leaving the other note/account unpaid when all was said and done. The court here followed it and held a payoff demand for a single lien requires all relevant account balances to be provided. That was sweet.

More important was that Prof. Bloom agreed that the law regarding notes and mortgages would be Alabama law, and that Alabama has an identical statute to UCC 3-301 for the rights of enforcement by note holders that makes ownership less important than ownership rights. Prof. Levitan calls this a side-step, but it looks like the judge could have cared less who the owner was. Either he’ll be upheld, or he’ll be made to look foolish on appeal. What Adam calls a “side-step” on 1) the applicability of NY law; and 2) whether ownership matters when enforcement rights is really the issue are clearly identifiable questions of law for de novo appeal (that is, the trial court’s opinion on the law doesn’t count for anything).

The take away I have on this case is that Judge Vowell’s circuit allows more defenses to eviction than I am used to seeing. (Minneapolis and St. Paul both have Housing Courts that are cattle calls, and while the judges diligently enforce procedure on noticing the defendant(s), compliance with the Protecting Tenants at Foreclosure Act of 2009, naming all adult parties known who might have putuative independent possessory rights, etc., they do not throw the proceeding open very often to defenses like Ms. Congress’s and are almost always upheld on appeal, admittedly due in part to eviction appeals being exceedingly difficult and expensive if they’re not set up correctly).

What I don’t know is whether he and his judges figure “might as well” if the alternative is that they’re going to see waves of post-eviction quiet titles instead. A few Alabama practitioners perspective would help on this.

Also, it appears there were two trials on this and that makes untangling some of the procedure difficult. The judge says in the middle of page 7 that there was a “first trial.” I’m not sure what happened there or why there was a second trial. Yves?

So, yes. As a district court opinion, it isn’t legal precedent anywhere, just as any other district court anywhere opinion isn’t legal precedent anywhere – appeals courts review questions of law de novo. That’s not what Prof. Levitan said, and I’m pretty sure it’s not what he meant, either.

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