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Late Session 3 – continued from page 45 tenants, but the state courts are not letting lenders expel tenants as easily. This trend came about in part because the residences were not properly cleaned and maintained. Mr. Talaganis gave an example of the overbilling for yard mowing; a $300 charge was assessed. Greg Ruzicka commented that he believed the days of old are over, stating “now creditors must be much more prepared.” They must be armed with certified copies of the Deed of Trust and have common addresses, further commenting that “the courts are shifting towards borrowers and/ or tenants, as society and the courts do not want empty vacated houses.” Ms. LaPorte also commented that unlawful detainers are now much harder to prove. The commissioners don’t know the law or are not up to date, and UCC rules are more difficult. Now defense counsel will not stipulate in cases where the commissioner does not know the law. Judge Goldberg emphasized that attorneys must know the law and recite it. “If creditors want courts to be in compliance with UCC and the law, then their attorneys must know the law,” he said. If attorneys are knowledgeable, the commissioner will listen to you. In a nutshell, he states, “be prepared.” Mr. Ruzicka further spoke about California loss mitigation, stating “the trend is to contact the borrowers and give them their rights.” Otherwise, it would be a matter of time until the borrowers advised that “you did not work with me to mitigate.” He advised the panel of adverse jury verdicts and separate actions brought to challenge sales. Attorneys were merging UD actions with challenges to sales and taking the issues to the Supreme Court, and Mr. Ruzicka stated that the UD judges were taking on issues beyond their jurisdiction. A discussion was lead by Ms. LaPorte regarding TILA actions. She said, “Be very selective on local counsel.” They must be knowledgeable, as there are fewer summary judgments granted. Matt Abad added that attorneys must be knowledgeable, but must be vigilant when courts go above and beyond the decider of law. He gave an example of when the Rules of Civil Procedure would not allow a plaintiff’s attorney to decide to use a special process server. Mr. Ruzicka commented that some judges in California were blatantly not following the law. He said that due to the costly appellate process, it was often better to dismiss and restart your action. Mr. Talaganis advised on Northern Ohio law, giving the example of a judge advising a debtor on the law to file Chapter 13, requiring mediation, dismissing cases if notes were not produced, and following a second dismissal rule, that if a case is dismiss twice, it becomes final. He stated that this occurred mostly in state courts, rather than federal. The topic of legislative activity was then discussed. Ms. LaPorte spoke on rent control and vacant property ordinances. She advised that Los Angeles required registering of property, with a right to recover. The eviction control ordinance limit was one year to avoid blight and empty houses and to prevent property devaluation. The key is that the rent is not controlled. Ms. LaPorte advised that the cash for keys issue was a “ticking time bomb,” that she believed it was only a matter of time until brokers begin to get sued. Ms. LaPorte further advises that the broker should ensure the rent was not controlled and they should make new rental agreements or leases and leave out the attorney’s fees. You can then demand rent, and if not paid, you have a remedy. She cautioned brokers to be extremely circumspect and make no demand until they know the facts. She stressed that there were eight suits in the City of Oakland against brokers and attorneys, and she advised that you should make sure you check with counsel and follow rules assiduously. Mr. Abad stated that he believed there will be an initiative to train borrowers and their attorneys on how to stop foreclosure and how to sue/counterclaim. Judges do not know who are the parties in interest if the plaintiff is a pools or a trust. An example is Countrywide, who has been sued for questionable underwriting and abusive lending practices, as evidenced by a settlement with the Attorney General. Mr. Abad also commented about the inability of a borrower to modify. “How can a borrower honor a modification if he or she cannot pay the loan?” Mr. Ruzicka gave an example of a $686,000 loan that was modified to $520,000 on the same tract. He believes the Obama initiative is not working because borrowers are already so far under water; it is a fallacy that borrowers can modify their way out of their predicament. Judge Goldberg further commented on Fannie Mae’s non-allowance of modification of principal. He believes a practice of cutting interest rates due to a temporary loss of job or cut back in hours could affect borrowers because the cost would be less than renting. He further believes the debtors will make payments on something they believe has equity. If the mortgage doubles, what is the price of the property? The value will never reach equity level, and a debtor is in servitude because the house is not worth the mortgage. In summary, the common thread of the panel discussion was that creditors’ attorneys should be completely up to date on the law and have all of their evidence on hand, with copies of the relevant documents and information on the correct parties in interest. The trend is shifting toward debtors’ rights in this economy, and creditors’ attorneys must be prepared to respond to this trend. 46 Ma y / Jun e 2009 REOMAC ® update tm
President’s Message – continued from page 3 Headquarters Happenings – continued from page 7 offered something for everyone. No member of the Board of Directors or our committees receives compensation for the many hours of hard work that it takes to prepare and put together a conference of this magnitude. REOMAC® is here to offer networking and education. We resent the perception that this conference is for anything other than to bring together industry professionals to network and learn from the brightest and best. We want to inspire you and offer you the experience and friendship of others doing the same type of work that you do. Any pre-conference or post conference events that are not presented by REOMAC®, are not sponsored or endorsed by REOMAC®. Should you throw an event or attend one of these unauthorized events, you should conduct yourselves in a professional manner. What you do during the time of this or any other conference is a reflection on those of us that attend these conferences to gain information and knowledge. The country is in a crisis. Millions of people are losing their jobs and their homes. We try to offer assistance to make it an easier transition for those that have to move out due to foreclosure. Please be more cognizant of the perception of those that do not know how hard you all work to do your jobs in the most ethical and honest way that it can be done. I am so honored and proud to be REOMAC®’s President this year. I have met the most incredible, hard working and kind people through my association with REOMAC®. I cannot and will not tolerate the bad press or misinformation that has circled around this industry and our conferences. I promise to do whatever I can to insure that we are perceived as professionals, now do your part. Our attitude toward life determines life’s attitude towards us. – Earl Nightingale Can I take any certification courses offered at the Fall <strong>Conference</strong> without attending the conference itself? No. The certification courses offered are in conjunction with the conference, for which you must be registered. What exactly is a conference guest registration? A guest registration is for a spouse or significant other of an attendee. Guests are only permitted to the social functions (i.e., the exhibit hall, the Gala Dinner, and the continental meals provided) and are not able to book a separate hotel room from the primary attendee of whom the individual is a guest or attend any of the educational sessions. Finally, if I may be of any service to you, please contact me or any of us at Headquarters. Thank you for your continued support of REOMAC®. REOMAC ® update tm Ma y / Jun e 2009 47
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