Tag: evidence

4th Circuit: Daughtery v.  Ocwen Loan Servicing- Evidence and Excessive Damages for FCRA Violations4th Circuit: Daughtery v.  Ocwen Loan Servicing- Evidence and Excessive Damages for FCRA Violations

The Daughterys purchased their home in 1999, with a 15-year balloon note payable in July 2014 in the amount of $82,666.36.  In 2012, the Daughterys had fallen $6,128.39 behind on the regular payments and Ocwen, who had become the mortgage servicer after the first default by the Daughterys, commenced foreclosure, reporting accurately the delinquency and foreclosure proceeding.  Using retirement savings, the Daughters brought the mortgage current within one month with the foreclosure be discontinued.
During this period, Ocwen had discovered that its predecessor had inaccurately reported the origination date of the note and submitted information to correct this error.  Equifax  mistook this for a separate account, creating a new, duplicate trade line for Mr.… Read More

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Bankr. E.D.N.C.: In re Ward- Debtor’s Independent Knowledge of Supports Tax Value


In a counter to McDuffie v. West (In re West), No. 5:15-CV-557-FL, 2016 WL 4186853 (E.D.N.C. July 15, 2016), where the debtor testified solely as to the tax value for property, “but … failed to provide any competent independent knowledge to establish as a basis for a court to accept the third-party assessment appraisal as the actual value of the subject property”, in the present case Ms. Ward started by stating the tax value. She continued that based on her “independent knowledge of sales and events affecting home values in her neighborhood”, the tax value was accurate.

For a copy of the opinion, please see:

Ward- Debtor’s Independent Knowledge of Supports Tax Value Read More

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Bankr. E.D.N.C.: In re Carroll- Evidence of Default necessary for Motion for Relief From Stay

Summary: Vericrest sought relief from the automatic stay and the Chapter 7 Trustee objected.  In the present case, the note contains two allonges purporting to transfer the Note by indorsement.  The first purports to transfer the Note from Flagstar Bank, F.S.B.  To LSF7 Bermuda NPL V Trust.  The second allonge is blank indorsement from Bermuda Trust.

To prevail on a Motion for Relief from Stay where there is no issue as to the sufficiency of equity to adequately protect it interests, the moving party must  show “[t]he [d]ebtor owes a debt to it, that it possesses a valid security interest securing the debt, and that the collateral securing the debt is declining in value while the [d]ebtor has failed to provide [the creditor] with adequate protection of its interest” to establish a prima facie case it is entitled to relief for lack of adequate protection. Read More

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N.C. Court of Appeals: In re Yopp- Holder of the Note through Corporate Merger; Evidence Allowable in a Foreclosure


Capital One commenced a foreclosure against the Debtors on a Deed of Trust, originally granted to Chevy Chase Bank, which later merged with Capital One.  The foreclosure was allowed in part based on, among other documents, an Affidavit from James Cox, Vice President of Capital One.  This Affidavit stated that “to the best of [his] knowledge” Capital One was the servicer and holder of the mortgage note.

The Debtors objected to this affidavit, arguing that it denoted only Mr.  Cox’s personal opinion and was not made upon personal knowledge as required by Rule 56(e).  The Court of Appeals rejected this argument, holding instead that when an Affiant puts a “self-imposed limitation to the affiant’s personal knowledge” See Faulk v. Read More

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