Co-Owners' Inability To Reach Mutually Acceptable Purchase/Buyout Agreement Leads To Partition Suit

In Jefferson County, Texas, The Southeast Texas Record reports:

• Seeking to properly divide up a tract of land worth around $4 million, Susan McCurry has filed a petition for partition against Texas Mountain Ranch and Mark and Carolyn Fertitta. The petition was filed July 23 in Jefferson County District Court.
  
  According to the petition, McCurry and the Fertittas are one-third, co-owners of undivided interest in certain real estate in Bandera and Medina Counties. The other third interest belongs to Elizabeth Wadill. The land is estimated to be worth more than $4 million.
  
  "Defendants ... have expressed an interest in obtaining a one-half divided possessory interest in the tract," the suit states. "Plaintiff has attempted to negotiate an equitable division of the property. However, defendants ... have been unreasonable in proposing a division of the property, thus, necessitating this lawsuit."
  
  The plaintiff seeks the court to enter a decree as follows:
  
  Determining the share of each of the joint owners of the property; Determining that the property is susceptible to partition and directing partition; Appoint commissioners to make such partition; and Awarding of court costs and attorney's fees.

Source: Landowners in litigation over $4M tract.

Series Of Emails Between Buyer's, Seller's Attorneys Creates Binding Real Estate Contract?

In Boston, Massachusetts, the Boston Business Journal reports:

• In a case that could chill electronic correspondence among parties of a real estate transaction, the Massachusetts Superior Court ruled that a series of emails between the buyer’s and seller’s attorneys created a binding agreement.
  
  Plaintiffs Ian Feldberg and Michael Rodgers alleged that, through emails, they entered into a binding agreement to purchase two lots in Sudbury for $475,000 from Harold Coxall. In court documents, Coxall said the emails did not satisfy the state’s fraud statute, which requires contracts for the sale of real estate be, “in writing and signed by the party to be charged.”
  
  Coxall, therefore, moved to dismiss the plaintiff’s complaint as frivolous. But Judge Douglas Wilkins ruled that electronic mail may satisfy the statute of frauds and in favor of the plaintiffs.
  
  Still, whether the parties’ email exchange satisfied the statute of frauds in this case is not know in this case since the parties have settled their dispute and dismissed the case.

Source: Bay State judge rules emails are binding in real estate transactions.

Title Insurer's Duty To Indemnify Foreclosing Bank's Loss Claim, Duty To Defend Against Borrower's Affirmative Defense Addressed In Minnesota Ruling

From a newsletter from the law firm Traub Lieberman Straus & Shrewsberry LLP:

• In its recent decision in Associated Bank, N.A. v. Stewart Title Guaranty Co., 2012 U.S. Dist. LEXIS 104528 (D. Minn. July 27, 2012), the United States District Court for the District of Minnesota had occasion to consider when a loss is valued for the purpose of coverage under a title insurance policy.

***

• With respect to the indemnity portion [of the litigation], Associated Bank argued that its loss should be measured at the time the loan was initiated, not at the time the foreclosure action concluded.
  
  Stewart Title, on the other hand, contended that Associated Bank did not recognize a loss until the foreclosure action resolved, at which time it was determined with finality that the mortgage would not be repaid. By then, the property had declined in value from $450,000 to $126,000. Stewart Title argued, therefore, that “the loss sustained by Associated Bank on its loan was not due to the invalidity of the Mortgage, but rather due to a decline in the value of the Property securing the loan,” and as such, was uninsurable.
  
  While the court could find no Minnesota case law directly on point, it noted the majority view in other jurisdictions that a mortgagee’s loss cannot be measured until the note has not been repaid and the security for the mortgage is shown to be inadequate. The court found this rule to be consistent with the purpose of title insurance, explaining:
  
  A title insurance policy "does not guarantee either that the mortgaged premises are worth the amount of the mortgage, or that the mortgage debt will be repaid." … Rather, the "insurable value of a mortgage on real estate is the fair market value of the realty which secures the mortgage, and is not controlled by the original purchase-price of the mortgage."
  
  The court observed that had the borrower not challenged the validity of the mortgage, and Associated Bank simply allowed to proceed with the foreclosure, it likely only would have been able to sell the property for $126,000, which was the market value of the property at the time.
  
  Having recovered $175,000 as a result of the settlement, the court agreed that Associated Bank did not sustain a loss for which Stewart Title was obligated to indemnify.
  
  The court nevertheless concluded that Associated Bank was entitled to a defense from Stewart Title [Stewart Title stiffed its insured by never responding to Associated Bank's tender of this matter for a title defense].
  
  Notwithstanding the fact that the borrower questioned the validity of the title in an affirmative defense, rather than a counterclaim or other form of direct claim, the affirmative defense asserted a claim adverse to Associated Bank’s title, thus triggering Stewart Title’s defense obligations under the policy.(1)

Source: Minnesota Court Addresses Coverage Under Title Insurance Policy.

(1) In connection with Stewart Title's stiffing of its insured by failing to step up when Associated Bank tendered the matter to it for a defense, the court made these comments in concluding that Stewart had a duty to defend:

• The parties also dispute whether Stewart Title had a duty to defend against the Arnesons' claim in the Foreclosure Action that the Mortgage was invalid and unenforceable.
  
  Associated Bank contends the Arnesons' Answer raised a claim that was adverse to the Mortgage, and therefore Stewart Title was obligated to defend against the claim. Stewart Title argues the duty to defend was not triggered because the Policy does not require Stewart Title to litigate a foreclosure action voluntarily initiated by an insured, and because the Arnesons' claim was excluded from coverage as a defect created by Associated Bank.
  
  The duty to defend is broader than the duty to indemnify. Enron Corp. v. Lawyers Title Ins. Co., 940 F.2d 307, 310 (8th Cir. 1991); Wooddale Builders, Inc. v. Maryland Cas. Co., 722 N.W.2d 283, 302 (Minn. 2006); Rechtzigel Trust v. Fidelity Nat'l Ins. Co. of N.Y., 748 N.W.2d 312, 320 (Minn. Ct. App. 2008) (citing Franklin, 574 N.W.2d at 406).
  
  Whether a duty to defend exists is determined by comparing the allegations in the underlying claim to the relevant policy language. Garvis v. Employers Mut. Cas. Co., 497 N.W.2d 254, 258 (Minn. 1993). If the pleadings in the underlying action raise a claim arguably within the scope of coverage, the duty to defend applies. Rechtzigel, 748 N.W.2d at 320 (citing Ross v. Briggs & Morgan, 540 N.W.2d 843, 847 (Minn. 1995)). See also Enron, 940 F.2d at 310 (stating an insured "must defend a claim the policy does not cover if the allegations of the complaint state on their face a claim against the insured to which the policy potentially applies") (emphasis in original) (internal quotation marks omitted).
  
  The duty to defend is determined at the time the insured tenders defense of the claim to the insurer. Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 166 (Minn. 1986). At that time, if the insurer knows of facts indicating there may be a claim, either from what is directly stated or inferred in the underlying complaint, or if the insured tells the insurer of such facts, "the insurer must either accept tender of the defense or further investigate the potential claim." Garvis, 497 N.W.2d at 258.
  
  The insurer bears the burden of proving that the claim clearly falls outside the coverage afforded by the policy. Prahm v. Rupp Constr. Co., 277 N.W.2d 389, 390 (Minn. 1979). "Any ambiguity is resolved in favor of the insured. . . . If the claim is not clearly outside coverage, the insurer has a duty to defend" Id.
  
  Stewart Title first argues the Policy does not obligate it to prosecute a foreclosure action that is voluntarily initiated by an insured, and thus the duty to defend was not triggered here. The Policy's duty-to-defend provision states that Stewart Title "shall provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured. . . ." Policy at AB002701 ¶ 4(a). The Arnesons' Answer challenged the validity of the Mortgage by alleging it was obtained by fraud and misrepresentation. Answer ¶ 8.
  
  Therefore, the Answer raised a claim adverse to Associated Bank's insured interest. The duty-to-defend provision does not contain an exception for adverse claims raised in proceedings initiated by insureds. Thus, the fact that Associated Bank voluntarily commenced the Foreclosure Action does not excuse Stewart Title from the obligation to defend against the adverse claim raised by the Arnesons' Answer. Cf. Enron, 940 F.2d at 309-11 (finding an insurer's duty to defend triggered by a claim raised in an answer to the insured's affirmatively filed action).
  
  Stewart Title also contends an affirmative defense does not give rise to a duty to defend. However, the Policy's duty-to-defend provision does not limit the types of pleadings that will trigger the duty; instead, the provision states generally that Stewart Title shall "provide for the defense of an insured in litigation in which any third party asserts a claim adverse to the title or interest as insured." Policy at AB002701 ¶ 4(a) (emphasis added); see also Joyce D. Palomar, 1 Title Insurance Law § 11:2 at 896-97 (2011-2012 ed.) ("Subsequent amendments to a complaint, answers, counterclaims or cross-claims all are included among the pleadings that invoke the insurer's duty to defend.").

On Verge Of Foreclosure, Arizona Man Coughs Up $21K+ To Reinstate Loan & Halt Sale; Bank Pockets Cash, Auctions Off Home Anyway

In Maricopa, Arizona, KPHO-TV Channel 5 reports:

• An Arizona man is accusing his bank of stealing his house and he wants it back. The homeowner was on the verge of foreclosure when he paid off all the money he owed, but the bank sold the house anyway.
  
  David Reed told CBS5 that he thought he had nothing to worry about when his home and 5-acre property in Maricopa was scheduled to be sold at auction, because he fell behind on his mortgage payments. "I called their payment line and asked them what is the total amount I owed to stop my house from going into foreclosure," said Reed. "They told me $21,573."
  
  The 52-year old, who's spent the past year battling health problems, sent the full amount straight to Cenlar Bank, which acknowledged receiving the money March 5. Reed was convinced his home was safe, but it wasn't.
  
  "I came home one day and had a notice on my door that somebody else owned my property and I either had to get out immediately or rent it back from them."
  
  Cenlar Bank had gone ahead with the trustee sale, March 23, even though Reed was now up to date on his mortgage and had paid all his interest and late fees. "I believe they just figured it was an easy way to make another $20,000," said Reed. "Let me make my payment, then turn around and auction it off and make more money."
  
  Reed hired a lawyer and filed a lawsuit after Cenlar failed to reverse the trustee sale. [...] Reed said that he was only able to pay off what he owed because of money he inherited recently following a death in the family.
  
  CBS5 made several calls and sent a number of emails to the attorney for Cenlar Bank to get their side of the story, but have not heard back.

For the story, see Arizona homeowner: 'Bank stole my house.'

Bankster Handiwork Underlying Foreclosure Fraud Disaster Emerges Again In Connection With Consumer Debt Collection Practices

The New York Times reports:

• The same problems that plagued the mortgage-foreclosure process -- and prompted a multibillion-dollar settlement with big banks -- are emerging in the debt-collection practices of credit card companies.
  
  As they work through a glut of bad loans, companies such as American Express, Citigroup and Discover Financial are going to court to recoup their money. But many of the lawsuits rely on erroneous documents, incomplete records and generic testimony from witnesses, according to judges who oversee the cases.
  
  Lenders, the judges said, are churning out lawsuits without regard for accuracy and improperly collecting debts from consumers. The concerns echo a recent abuse in the foreclosure system, a practice known as robo-signing in which banks produced similar documents for different homeowners and did not review them.

For more, see Problems Riddle Moves to Collect Credit Card Debt.

Fraudulent Real Estate Tax Exemption Claims For Homesteaded Property Costs One North Florida County Of Up To $1M Per Year

In Escambia County, Florida, NorthEscambia.com reports:

• Escambia County is being robbed of up to $1 million annually by property owners committing homestead exemption fraud, Property Appraiser Chris Jones said [].
  
  “Unfortunately some property owners claim exemptions to which they are not entitled,” Jones said. “These may include rental or vacation properties, second homes or other properties in which the owner does not reside.”
  
  There are currently about 650 cases of homestead fraud per year in Escambia County, Jones said. Homestead fraud occurs when a person who is not a resident of Escambia County files for and is granted a homestead exemption; when that person is not in good faith residing on the property which has been granted the exemption; or is claiming a resident benefit in some other location while at the same time claiming an exemption on the property on which they filed. Homestead fraud is punishable by up to a year in jail, a fine of $5,000, or both.

For the story, see Homestead Exemption Fraud Costing Escambia $1 Million A Year.

C. Florida Woman Named In F'closure Of Home She Sold 15+ Years Ago; Blames Problem On Title Company Screw-Up, Bank Attorney's Failure To Amend Filing

In Clearwater, Florida, The Tampa Tribune reports:

• Deloris Bell sold her house in 1995, so she was shocked when in March a bank filed for foreclosure on the house and named her in the lawsuit.
  
  She said she called the attorney's office handing the foreclosure and was told not to worry. "I called and the guy said, 'It's just an error, just file for a new deed, and we'll correct it and take your name out of the paperwork,'" Bell said.
  
  Bell called her title company and filed for the new deed right away. But two months later, more court filings showed up, and her name was still listed as a defendant. The attorney's office again said it was an oversight.
  
  "He said, 'Oh, not a problem, I see it right here, it's on the computer, it's been corrected. We'll take your name off,'" Bell said. That was in June, but her name was still on the lawsuit.
  
  Lawsuits like Bell's, real estate experts say, illustrate the complexity of foreclosure and how innocent people can get pulled into someone else's financial trouble. When Bell sold her home, the title company made an error on the deed. She should have been dropped from the suit as soon as the deed was filed.

***

• [A]fter inquires from The Tampa Tribune and News Channel 8, Bell said she got good news. "The attorney called and said they're dropping me from the suit," she said. "I'm so relieved."

For more, see Error ensnares woman in foreclosure lawsuit.

HOA Fight Against Dues-Stiffing, Deadbeat Banksters Continues As Lenders Increasingly Find Themselves On Defensive In Foreclosure Actions

In Broward County, Florida, the South Florida Sun Sentinel reports:

• South Florida homeowner associations are foreclosing on some of the nation's largest banks, accusing the lenders of failing to pay thousands of dollars in maintenance fees on repossessed properties.
  
  The foreclosure filings are a growing trend as associations become more aggressive in going after delinquent fees that have crippled HOA budgets during the housing bust.
  
  Banks owe a portion of the past-due maintenance fees and the full amount from the date they take title to the property, attorneys said. If the lenders fall behind, they're subject to foreclosure just as an individual owner would be.
  
  In one Broward County case, Deutsche Bank didn't pay maintenance fees for nearly three years on a townhome it repossessed in September 2009 at the Southbridge development in Pembroke Pines, said Ben Solomon, a lawyer for the association.
  
  The Southbridge HOA filed for foreclosure against Deutsche Bank last year. The bank finally paid $25,553 in June — and only then because it had to convey clear title to another buyer, Solomon said.
  
  "They expect payment from their customers, but once they become our customers, they don't want to pay us," said Marc Lebron, treasurer of the Southbridge HOA. "It's ironic, isn't it?"
  
  Solomon is representing dozens of other South Florida homeowner associations that have filed foreclosures against Deutsche Bank, JPMorgan Chase, Citibank and others. He expects more than 100 similar cases to be filed by the end of the year.

***

• Solomon said lenders often remain delinquent while they market the home for sale to a third party. Once those deals are completed, the banks pay what's owed out of the proceeds of the sale rather than fulfill the legal requirement of paying each month. "Every association needs to pursue delinquent owners, banks or otherwise," he said.
  
  In another case, he said, JPMorgan Chase hasn't paid the Keys Gate Condominium Association in Miami-Dade County for more than two years after it foreclosed on a condominium there.
  
  Keys Gate filed for foreclosure against the bank, saying it owes nearly $20,000 in fees. JPMorgan failed to respond, and the association entered a default against the bank and is awaiting a judge's ruling, Solomon said.

For more, see HOAs foreclose on big banks.

Woman's Effort To Stymie Foreclosure On Parents' Home By Filing Phony Documents Gets Her A Year In Jail, 3 Years Probation

In Stanislaus County, California, The Modesto Bee reports:

• A judge has sentenced a woman to a year in Stanislaus County Jail for filing false documents in an attempt to delay foreclosure on her parents' home. On June 5, Monica Whitten was convicted of two felony counts of offering to record or recording false documents, the district attorney's office reported [].

***

• Prosecutors said Whitten's case is an example of a common real estate fraud scheme in which defendants pay money for forms they believe will slow down or stop a foreclosure sale and file them at the county clerk-recorder's office. [...] Along with the jail sentence, Stanislaus County Superior Court Judge Nancy Ashley sentenced Whitten to three years of probation and ordered her to pay restitution.

For the story, see Jail time in Stanislaus real estate fraud.

Buffalo Bankruptcy Attorney Raises Questions About L.I. Foreclosure Mill's Billing Practices; Suspects Systematic Squeezing Of Homeowners Across NYS

In Buffalo, New York, The Buffalo News reports:

• A Buffalo bankruptcy attorney's attempt to investigate and call into question the fees charged to debtors by a prominent downstate foreclosure law firm has triggered a bitter defamation lawsuit.
  
  Attorney Peter Grubea, who runs the largest bankruptcy practice in Western New York by volume of cases, has raised questions about what he calls high and unnecessary fees charged by Rosicki, Rosicki & Associates P.C., of Long Island, one of the biggest foreclosure firms in the state.
  
  He accuses them of racketeering, a charge often used for organized crime and corruption. In a blog posting on his website in late March, Grubea wrote that he is "currently investigating the billing practices" of Rosicki, saying that "we believe that the charges imposed ... are unfairly high."
  
  He also wrote that he is already litigating the issue in a bankruptcy proceeding and expects additional litigation in state court, and asks for people to contact him if they've dealt with Rosicki in a foreclosure case. "You may have a claim for monetary damages," he wrote.
  
  In response, Rosicki sued Grubea for defamation and libel, accusing him of "publicly and falsely defaming plaintiffs to the whole world" by making "defamatory statements that are directed squarely at destroying both the business and reputation of plaintiffs."
  
  The battle between Grubea and the downstate firm illustrates what is already happening in the wake of the dissolution earlier this year of Steven J. Baum's firm, which had been the dominant foreclosure law firm in the state for years.

***

• In a legal memorandum, filed as part of the bankruptcy petition for a Lancaster woman to justify reducing her mortgage debt, Grubea accused the Rosicki firm and its affiliated title and legal service firms of being "engaged in the systematic overbilling of New York homeowners for all of the foreclosure-related services they provide."

***

• As a result, Grubea alleged, Rosicki actually earns more money on a case through non-lawyer paperwork - handled by the affiliated companies that are owned and run by the law firm's husband-and-wife partners - than it does from the work performed by its lawyers.

For more, see Foreclosure accusations prompt suit (Local attorney questions downstate firm's fees).

Scammer Cut Loose After 3+ Yrs Time Served For Running Rent To Own, Straw Buyer Ripoff That Left Wanna-Be Homeowners Booted, Investors Holding The Bag

In Lee County, Florida, The News Press reports:

• A man accused of being a major part of an alleged $3 million mortgage fraud scheme pleaded no contest [] in a Lee County court to five counts of obtaining mortgages by fraud, said a state attorney’s office spokeswoman. A judge adjudicated him guilty.
  
  After his 2007 arrest, Erich Heckler, now 41, faced 62 counts including racketeering, grand theft, obtaining a mortgage by false representation and scheme to defraud a financial institution. The scheme reportedly went back to around 2003, said reports at the time of his arrest.
  
  Heckler received credit for time served after spending 1,200 days in jail, said Samantha Syoen, a state attorney’s office spokeswoman. He must also pay the victims more than $56,000 and received 100 months of probation, she said. “Our main focus for doing a plea was to get restitution for the victims,” Syoen said. “It’s been a long time coming.”
  
  Heckler was vice president of Fort Myers-based Alternative Home Finance, which would find renters with bad credit ratings and allow them to pick out a house to rent and eventually own, according to court documents.
  
  The company would then allegedly find people with good credit and take out multiple loan applications in the name of one borrower while falsifying applications. After collecting money from a bank, they would allow the house to go into foreclosure, leaving renters without a home, borrowers with bad credit and banks to foot the bill.

Source: Man pleads no contest to Lee County mortgage fraud scheme.

'County Refused To Give Me Same Break It Gave Others!' Says Tax-Foreclosed Homeowner In Effort To Reclaim Home With 'Equal Protection' Lawsuit

In Livingston County, New York, The Livingston County News reports:

• A Livonia man is filing suit against Livingston County to reclaim ownership of his property from foreclosure.
  
  The lawsuit highlights a concession made for a home in Mount Morris — and claims that the same concession should have been be made for anyone whose property was seized for foreclosure auctions in 2011 and 2012.
  
  Robert E. Chabot’s home at 5147 Blank Road was among over 40 parcels destined for sale in the county’s 2011 foreclosure auction.

***

• Chabot’s suit challenges the county’s right to have disallowed his post-June 15 payment of back taxes and penalties. The case centers on the fact that [one] property [...] in Mount Morris and [another] property [...] in Lima have remained in possession of the original owners, even though those two owners likewise failed to pay their taxes before the deadline.
  
  These exceptions to what the county claims is a blanket policy violates constitutional protections, said [Chabot's attorney Derrick A.] Spatorico. “Our argument is that the county has two sets of rules. One set of rules is for most everybody, but there is another set of rules for those who protest.”
  
  Such differential treatment is a violation of both the New York and United States constitutions which insist upon equal protection of all citizens. “It’s a fairness argument. We’re arguing that the law needs to be clearly defined and equally applied — and it’s not,” Spatorico said.

***

• As a solution to the unfairness, Spatorico would hope to see something along the lines of an amnesty program — tied to a specific time frame where Livingston County would accept back tax payment beyond the redemption deadline.
  
  “Until the county rectifies this situation and starts to apply the law equally to everyone, then I think that they have an established practice of allowing exceptions to the rule,” Spatorico said.
  
  Liability implications
  
  If Chabot wins his case, will a similar challenge be opened to every property owner who has experienced loss of his or her property to foreclosure in Livingston County since 2011?
  
  “The county opened the door for this when they failed to apply the law equally to everyone in the county,” Spatorico commented. “They cannot selectively and arbitrarily apply the law.”

For the story, see County challenged with ‘equal protection’ lawsuit.

Lawsuit: 'I Bought A Property Pursuant To A Binding Contract For Deed & Now The Seller Is Trying To Unload The Premises Out From Under Me!'

In Galveston, Texas, The Southeast Texas Record reports:

• Houston resident Archie Patterson has filed suit against Andrew Murphy of Poland, Ind., in response to a dispute over a deed to real property in Galveston County, recent court documents say.
  
  A lawsuit filed July 25 in Galveston County District Court says Murphy's supposed attempt to sell the property to third parties is a breach of contract against Patterson, additionally stating the defendant trespassed to try title.
  
  The suit shows both parties entered into a written contract for deed which called for Murphy to sell the subject property to Patterson in 2008.
  
  According to the original petition, the complainant "has complied with the terms and conditions of the contract, has not received any notice of default concerning the same and is entitled to exclusive possession of the property and specific performance under the subject contract for deed."
  
  Patterson, however, recently learned that the respondent had listed the place for sale despite the covenant between them.
  
  "The defendant's listing and offering of the property for sale to third parties expresses the defendant's unequivocal intent to breach its obligations under the contract, including executing and delivering to the plaintiff's warranty deed conveying good and marketable title to the property, free and clear of any liens and encumbrances and subject only to restrictive covenants and easement of record," the suit says.
  
  Consequently, Patterson seeks a declaratory judgment, injunctive relief and unspecified monetary damages.

Source: Houston man in litigation over deed to Galveston property.

Michigan AG Scores Another Criminal Conviction In Probes Targeting Loan Modification Ripoffs; Suspect Cops Plea To Racketeering, False Pretenses

In Holly, Michigan, M Live reports:

• A Holly woman pleaded guilty for her role in a foreclosure rescue scam that bilked victims out of nearly a quarter-million dollars.
  
  Tashia L. Winstanley, who did business as TLW Mortgage Solutions, pleaded guilty to one count of conducting criminal enterprises (racketeering), one count of false pretenses more than $20,000 and one count of false pretenses from $1,000 to $20,000, according to court records. Attorney General Bill Schuette announced the charges against Winstanley,who was already incarcerated at the Huron Women's Correctional Facility, in May.
  
  An attorney general's office investigation led to the charges, showing that from September 2009 until January 2012, Winstanley operated TLW as a mortgage modification business and collected a fee from clients without making any effort to secure the modifications. Schuette's office said victims came from eight counties, including Genesee County.
  
  Winstanley is serving time for previous convictions for larceny by conversion. She is scheduled to be sentenced Sept. 14. People who believe they are victims of Winstanley or TLW can file a complaint at www.michigan.gov/ag.

Source: Holly woman pleads guilty to role in foreclosure rescue scam.

Virginia AG Reaches Civil Suit Settlement With Alleged Loan Modification Racket Operator

In Richmond, Virginia, The Virginian Pilot reports:

• The state has reached a settlement with a Chesapeake-based mortgage loan-modification company that had been accused of charging illegal advance fees to clients seeking foreclosure rescue services, Virginia Attorney General Ken Cuccinelli said [].

***

• According to the attorney general's office, the settlement with R.L. Brad Street and [company owner Rhonda L.] Wyland includes a permanent injunction prohibiting them from collecting advance fees as well as a judgment of $32,900 against them to be paid as restitution to customers. Cuccinelli said the settlement also calls for the company and Wyland to pay a combined $25,000 in civil penalties and reimburse the state $5,000 in legal fees.

For the story, see Settlement reached on mortgage allegations.

For the Virginia Attorney general press release, see Attorney general announces settlement with Chesapeake-based mortgage loan modification company and its owner.

Senior Duped Into Belief She Obtained Reverse Mortgage Now Faces F'closure; Originator Accused Of Pocketing Loan Proceeds, Making Lulling Payments

In Louisville, Kentucky, WATE-TV Channel 6 reports:

• A Louisville widow is due to lose her home to foreclosure in less than two weeks. She's a victim of an alleged investment fraud scheme that has possibly cost hundreds of people millions of dollars.

***

• Joy [Joines] and her late husband, Kenneth, built a small home in Louisville on waterfront property in a picturesque inlet 25 years ago. Before Kenneth died of cancer in 2005, he wanted financial security for his wife. So he took out a reverse mortgage, believing it would give her income for life, along with $900 a month she receives from another retirement fund.
  
  For seven years, Joy received a $500 monthly payment based on the equity from her home. But this March, PNC Mortgage wrote saying Joy was behind in her mortgage payments. "I have never done anything to hurt anyone, never in my life," she said.
  
  She is one of many investors who lost their retirement savings, as documented in court records. It was part of an alleged investment fraud involving Knoxville-based Benchmark Capital and Louisville accounting firm J. Allen and associates. A federal indictment named Joyce Allen and an associate as part of the scheme.
  
  "The bank bought the contract out, but she had taken a balloon payment and stuck it in her pocket," Joy said. According to the court documents, there's no evidence that any funds sent to Benchmark were ever invested in a legitimate annuity. [...] In July, Joyce Allen pleaded not guilty to six counts of counterfeit securities and conspiracy to commit money laundering.
  
  Foreclosure is scheduled on Thursday, August 16 for the home Joy has been fighting to keep. She says it's inevitable she's going to lose it. "I've never cried so much, and I don't want to cry anymore. I just don't," Joy said.

For more, see Louisville woman about to lose home in reverse mortgage scam.

Return Of Stolen Muscle Car Taken By Foreclosure Vendor Brings More Heat On BofA For Lack Of Oversight In Hiring Process

In Worcester, Massachusetts, the Worcester Telegram & Gazette reports:

• On Tuesday afternoon, a garage door rolled up at the Manchester Police Department in New Hampshire, and Sims Dahrooge laid eyes on a familiar rear spoiler and dual exhaust pipes bristling from the back of a vintage purple muscle car.
  
  “That’s all I had to see, and I couldn’t help it. I just started to burst into tears,” he said yesterday, back in the city with the 1973 Dodge Challenger he restored with his father, Aaron Dahrooge.
  
  As the Dahrooges towed the car back to Worcester on a trailer, on account of a blown transmission and rear tires scorched smooth from untold burnouts, two Manchester men were being held on Massachusetts warrants for receiving stolen property.
  
  The classic American muscle car had been taken from the Burncoat home of Aaron Dahrooge’s deceased mother in March, a day after a Bank of America contractor had gone to the home to winterize and secure it.
  
  Bank of America is foreclosing on the vacant Uncatena Avenue home, which is in Mr. Dahrooge’s control in the meantime as executor of his mother’s estate. He stored the Challenger in the home’s garage during the winter as he did when his mother was alive, he said.
  
  A neighbor told Mr. Dahrooge that the same crew that had winterized the home and padlocked the garage door in March returned the next day, used a key to open the garage lock and towed away the distinctive purple car, which has dual four-barrel carburetors and a chrome air scoop sticking up through the hood.
  
  Mr. Dahrooge, who immediately reported the car stolen, said his attempts to get information about the winterization crew from Bank of America were met with months of stonewalling, a characterization disputed by the bank.

***

• The Dahrooges said investigators told them the two New Hampshire men arrested have criminal records, one of them extensive. They maintain the bank should be liable for the damage to the car.
  
  “The biggest thing for me is Bank of America hired criminals. Don’t they do background checks? This is supposed to be a professional bank,” Sims Dahrooge alleged.
  
  His father’s lawyer, Thomas J. Scannell of the Worcester firm Fusaro, Altomare & Ermilio, said he’s looking into whether the Dahrooges have legal grounds to sue the bank for damages.
  
  In the meantime, Patrick Peryer, 22, and Kurtis Lavigne, 27, both of Manchester, N.H., are fighting rendition to Worcester on charges of receiving stolen property. They were arraigned Tuesday as fugitives from justice on the charges in New Hampshire.

For more, see Missing muscle car back home in Worcester amid foreclosure battle (No explanation of how it was taken, but charges against NH men).

For story update, see Car stolen from foreclosed house causes bank, vendor freeze:

• Local muscle car enthusiast Aaron Dahrooge's successful battle to get his stolen 1973 Dodge Challenger back has prompted one of the world's largest financial institutions to temporarily stop doing business with a major foreclosure vendor in Massachusetts and to require the vendor to verify that all of its employees and subcontractors have up-to-date background checks.

Central Florida Man Faces More Charges In Alleged Scam That Duped Homeowners In Foreclosure To Deed Over Their Homes To Him

In Brooksville, Florida, the Tampa Bay Times reports:

• A Brooksville man accused of trying to sell foreclosed properties he never legally owned to unsuspecting buyers is facing more charges. Three more victims in Hernando County have come forward since Gaetano Antonelli was arrested June 27 and charged with three counts of organized fraud, the Hernando Sheriff's Office said Tuesday.
  
  Antonelli, 62, faces three more fraud charges here. The case has also crossed county lines.
  
  According to the Sheriff's Office, Antonelli targeted home owners facing foreclosure, telling them he could relieve them of their mortgages by suing their mortgage company. Antonelli told them they could walk away and maybe even get money back if they signed their deeds over to him by a power of attorney agreement, said Hernando sheriff's Detective Dustin Mormando.
  
  Then, authorities say, Antonelli would list the houses for sale on Craigslist without the knowledge of the homeowners.

For more, see Brooksville man faces more charges in scheme involving home purchases, sales.

Indictments Filed Against Pair Accused Of Duping Homeowners Into Giving Up Control Of Homes To Avoid F'closure, Illegally Snatching Vacant Homes

In Denver, Colorado, The Denver Post reports:

• The Denver Grand Jury has indicted two men in connection with a series of real-estate scams targeting homeowners facing foreclosure and Spanish-speaking would-be homebuyers.
  
  Alfonso Carrillo, 50, and his associate Rudy Breda, 53, are charged with violating the Colorado Organized Crime Control Act and face multiple counts of theft, burglary and criminal trespass. Carrillo is charged with 18 counts and Breda with 10 counts.
  
  The indictment, filed in Denver District Court [], alleges that Carrillo found homeowners facing foreclosure and, for a nominal fee, persuaded them to give him control of the properties. He misrepresented it as a way to avoid foreclosure. Carrillo and Breda would then allegedly sell the properties using phony documents.
  
  The charges also allege that the duo would illegally gain access to empty homes, taking thousands of dollars in payments from unsuspecting buyers. Once the buyers were discovered by mortgage lenders or the actual property owners, they were forced to vacate the properties. Carrillo and Breda allegedly targeted Spanish-speaking homebuyers who were often undocumented, according to the indictment.
  
  Arrest warrants have been issued for both men, with bail set at $750,000 for Carrillo and $20,000 for Breda. Carrillo already faces multiple felony counts of theft and forgery, but the earlier charges will be dismissed. The next court date for Carrillo and Breda has not been set.
  
  The indictment also alleges Jose Caraveo, 39, and Veronica Fernandez-Beleta, 40, broke into a home and remained there unlawfully from April 2011 to this month. They are charged with first-degree criminal trespass and second-degree burglary.

Source: Denver Grand Jury charges that scammers sold homes they didn't own.

Albuquerque Cops, Feds 'Sting' Suspect Accused Of Hijacking Possession Of Vacant Homes In Foreclosure & Renting Them Out To Unwitting Renters

In Albuquerque, New Mexico, the Albuquerque Journal reports:

• Stephen Jay Bonner, 43, was arrested Wednesday for allegedly entering homes that were vacant and in the process of foreclosure, then renting the houses as if they were his own, according to an Albuquerque Police Department news advisory.
  
  APD detectives and agents of the U.S. Secret Service conducted a joint operation in which a resident of one of the properties used an undercover officer to make a fraudulent rent payment to Bonner, according to APD Officer Robert Gibbs.
  
  The undercover officer observed the transaction, and Bonner was taken into custody without incident by uniformed officers from the Northwest Area Command in a traffic stop, the advisory said.
  
  Bonner allegedly admitted breaking into houses on three different occasions and committed fraud in the rental scam, according to Gibbs.
  
  He was booked into the Metropolitan Detention Center [...] and was being held on a $20,000 cash or surety bond, facing three counts of residential burglary and one count of fraud over $2,500 and under $20,000, according to online MDC records.

Source: ABQ Man Accused of Rental Scam.

Fair Housing Lawsuit Accuses Rural Connecticut Town Of Using Illegal Residency Requirements To Remain "Lily White"

In Bridgeport, Connecticut, Courthouse News Service reports:

• The rural town of Winchester "systematically and unlawfully" discriminates against minorities in its Section 8 housing voucher program to keep the town's black population at statistically zero percent, The Connecticut Fair Housing Center claims in Federal Court.
  
  The Hartford-based Fair Housing Center is joined as a plaintiff by Crystal Carter, who is black, in the lawsuit against The Town of Winchester Housing Authority.
  
  Winchester, pop. 11,000, in rural Litchfield County in northwest Connecticut, is 94.4 percent white, according to city-data.com. Its estimated median household income of $56,260 is 16 percent below the state median of $67,036, according to city-data.
  
  The Winchester Housing Authority is in charge of the Section 8 housing voucher program for Winchester and 16 neighboring communities in a "Rental Assistance Alliance."
  
  The federal complaint claims that "according to the 2010 American Community Survey 5-year estimates, 94.5 percent of housing units in Winchester are occupied by white, non-Hispanic households, while only 4.5 percent are Hispanic. The number of housing units occupied by African-American households is so low that it does not register above 0 percent."
  
  This population trend holds for the other towns in the Rental Assistance Alliance, where in "the percentage of units occupied by white, non-Hispanics is greater than 91 percent," according to the complaint. Carter and the Housing Alliance claim Winchester remains lily white through illegal "residency requirements."
  
  They say in the complaint that admission to Section 8 programs cannot be based on "where the family lives before admission to the program. These requirements are unlawful because in communities with populations that are disproportionately white and/or non-Hispanic they perpetuate segregation by excluding minority applicants who live outside those communities from obtaining housing there."
  
  Carter lived Hartford when she applied for a housing voucher through the Winchester Housing Authority (WHA). She claims that "although WHA's waiting list was open to applicants, WHA refused even to send Ms. Carter an application, telling her that she was ineligible because she did not live within the Rental Assistance Alliance. WHA also told Carter that Winchester was not on a 'bus line,' there were no real jobs there, and it was in the 'woods.' WHA recommended that Ms. Carter apply to the housing programs in Bridgeport, New Haven, or Torrington, all communities with considerably larger African-American and Hispanic populations than the towns in the Rental Assistance Alliance."
  
  Carter and the Fair Housing Center seek declaratory judgment that the WHA is violating the Fair Housing Act, an injunction, and punitive damages.

Source: Rural Town Accused of Housing Discrimination.

For the lawsuit, see Carter, et ano. v. Housing Authority of the Town of Winchester.

L.I. Housing Official Pinched For Allegedly Creating Fictitious Landlord With No Actual Tenant To Illegally Pocket $120K In Section 8 Rental Benefits

From the Office of the U.S. Attorney (Central Islip, New York):

• Federal law enforcement agents [] arrested Louis Abate, the former Fiscal Director for the Nassau County Office of Housing and Community Development (from 2004 to 2012), in connection with a scheme to steal federal housing benefits intended for low-income Long Islanders in need of housing financial assistance.

***

• As charged in the complaint, between May 2009 and August 2011 Abate stole more than $120,000 in federal Section 8 rental subsidies from a Section 8 program he oversaw that serviced individuals residing in Island Park, New York.
  
  Abate allegedly created a fictitious landlord with no associated tenant, and for more than two years diverted federal Section 8 benefits for this supposed landlord to a bank account Abate personally controlled.
  
  As further set forth in the complaint, during this period Abate was successful in illegally paying himself approximately $5,000 per month – more than three times the monthly amount of federal Section 8 subsidies received by any single participating landlord in the Island Park area.

For the U.S. Attorney press release, see Former Nassau County Housing Official Arrested for Theft Of Government Funds (Louis Abate Allegedly Stole More Than $120,000 in Federal Section 8 Housing Benefits Earmarked for Low-Income Long Islanders).

How One Foreclosure Defense Attorney Stumbled Into The Dubious World Of Force Placed Insurance

From a recent story in American Banker:

• [W]hen attorney Jeffrey Golant took on his first forced-placement case, he thought he was looking at an administrative mistake.
  
  A solo practitioner in Pompano Beach, Fla., Golant splits his time between foreclosure defense and insurance cases. He had been referred his first forced-placement case by his mother, Margery Golant — also a longtime foreclosure defense attorney — in May of 2008 when the dispute veered into insurance territory.
  
  The problems should have been quick to sort out, Golant recalls. His client was current on her mortgage and claimed the lapse of insurance coverage on her home was the result of her previous insurer's error. Much of the new policy's coverage was redundant, Golant said, duplicating flood and wind policies that had remained in place. Moreover, billing her for expensive retroactive hurricane protection, for a year when there had been no significant storms, struck Golant as inherently ridiculous.
  
  "I really thought they'd added an extra digit," he said.
  
  But the servicer that had requested the policy — nominally Zions Bancorp., though like many regional banks, the company outsources its servicing and does not involve itself in loan-level decisions — wouldn't back down. The backdating was appropriate because "Had there been damage to your property during the uninsured time … you would have benefited significantly," the servicer said in one letter.
  
  The Mortgage Bankers Association told American Banker that retroactive coverage is necessary to prevent gaps in insurance. But asked for an opinion on backdating a policy by nine months, the National Association of Insurance Commissioners told American Banker that insurance is "prospective in nature." Therefore, policies "should not be back-dated to collect premiums for a time period that has already passed," the trade group for state insurance regulators said.
  
  The case got stranger when Golant's client visited the address listed for the insurer in an unsuccessful attempt to sort things out, he said. While the people there claimed to represent the servicer, they were operating out of an office belonging to a force-placed policy insurer since acquired by QBE Insurance Group.
  
  Golant didn't understand why the insurer would be speaking on behalf of the servicer. But shortly after he began asking questions about the relationship between servicer and insurer, the case settled. Confidentially. At the insurer's request.
  
  With the matter resolved, it would have made sense for a Florida solo practitioner who handles as many as 50 cases at any one time to move on. Golant, however, started investigating the connections between multibillion-dollar banks and specialty insurers.
  
  "Frankly, it was their speed and willingness to settle that made me think they were not at all confident about the arrangement," Golant said. "I was still in the dark. But I got curious."

For more, see Ties to Insurers Could Land Mortgage Servicers in More Trouble.

Thanks to Deontos for the heads-up on the story.

Some Banksters Use Threat Of Force Placed Insurance To Soak Homeowners Into Coughing Up Cash For Unnecessary Flood Coverage

In Lindstrom, Minnesota, the Star Tribune reports:

• Thousands of homeowners in Minnesota and across the country are being pressured to buy flood insurance by their mortgage lenders, despite evidence showing that many of these homes are well outside danger zones.
  
  Though the federal government's new flood maps are more accurate than ever, state and local officials say lenders and their agents are making obvious mistakes in their interpretation of flood risk.
  
  Chisago County officials said they have intervened this year on behalf of 20 property owners who were wrongly classified as living in high-risk zones where flood insurance would be mandatory. Officials in Stearns and Washington counties also have taken steps to correct the record for dozens of homeowners who face minimal, if any, risk of flooding.
  
  "We're seeing too many problems," said Ceil Strauss, Minnesota's floodplain coordinator.
  
  In many cases, lenders are giving homeowners just 45 days to buy flood insurance or threatening to obtain it for them, often at exorbitant prices. Some homeowners have been told their premiums could run as high as $6,400 a year.

***

• Under government pressure, banks stepped up their oversight. Legally, lenders could send borrowers in high-risk zones to the federal government's flood insurance program, where premiums are heavily discounted. Instead, banks began steering thousands of customers to private insurance companies where rates are usually two to three times higher, according to regulators.
  
  The deals are fraught with conflicts of interest, critics say. Not only are many lenders charging hefty commissions for these transactions, they often have ties to the insurance companies that issue the policies.

For more, see Lenders' mistakes cost homeowners on flood insurance (Mortgage lenders are misinterpreting new FEMA maps to require homeowners to buy expensive, unwanted coverage).

Thanks to Deontos for the heads-up on the story.

Impositon Of Constructive Trust Upheld, Allowing Elderly Homeowner To Get $37K In Proceeds On Home Allegedly Sold Out From Under Her By Grandaughter

In Beaumont, Texas, The Southeast Texas Record reports:

• The Ninth Court of Appeals of Texas upheld a jury verdict in favor of plaintiff Lenora Fawcett on Thursday, allowing her to keep the award of more than $37,000 in home sale proceeds that had been withheld by her granddaughter.
  
  Last July, defendants Stephen Young and Kimberly Young, Fawcett's granddaughter, filed a notice of appeal, seeking to reverse the jury's ruling and the subsequent judgment entered by the court.
  
  Fawcett sued the Youngs in January 2010, claiming they sold her home without consent and gave her only $6,000 from the $148,000 transaction. The trial began March 7, 2011, and ended the following day, with jurors finding that the Youngs failed to comply with their fiduciary duty to Fawcett. The jury awarded Fawcett $37,162 in damages, according to the charge of the jury.
  
  "While recovering (from an illness, Fawcett's) belongings were removed from her house without her knowledge or consent and placed in a storage POD," the original complaint states.
  
  "The real property, along with Plaintiff's house, was sold by Stephen and Kimberly Young. The deed was filed May 13, 2009, and conveyed the property for cash and a note of $148,453."
  
  On appeal, the Youngs argued that no fiduciary relationship existed, that they never held or administered property owned by Fawcett, and that the trial court could not impose a constructive trust in Fawcett's favor.
  
  The Ninth Court's opinion, authored by Justice David Gaultney, found that a court may impose a constructive trust on property obtained as a result of a breach of fiduciary duty.(1)
  
  "Under the circumstances, we cannot say the trial court erred in imposing a constructive trust," states the court's July 26 opinion.(2) "We overrule appellants' issues and affirm the trial court's judgment." However, Justice Charles Kreger wrote a dissenting opinion, stating "there is no evidence of a fiduciary relationship" between the parties.

Source: Granddaughter loses appeal of $37K award over home sale proceeds.

For the ruling, see Young v. Fawcett, 376 S.W.3d 209 (Tex. App.-Beaumont [9th Dist.] 2012).

See , generally, The Confidential Relationship Theory of Constructive Trusts - An Exception to the Statute of Frauds, 29 Fordham L. Rev. 561 (1961) (contains discussion on distinction between the confidential relationship and the fiduciary relationship).

(1) The analysis of the court's majority in concluding that the jury decision on the existence of a fiduciary relationship should remain undisturbed follows:

• Kimberly and Stephen contend that no fiduciary relationship existed, that they never held or administered property owned by Lenora, and that the trial court could not impose a constructive trust in Lenora's favor. The Youngs do not challenge the phrasing of the jury questions or the amount ($37,162) of the damages the jury awarded.
  
  "The term `fiduciary' refers to a person owing a duty of integrity and fidelity, and `it applies to any person who occupies a position of peculiar confidence towards another.'" Hasson, 286 S.W.3d at 14 (quoting Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512 (Tex. 1942)). The Supreme Court has explained that the term "contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction." Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980).
  
  A fiduciary duty may arise from an informal relationship `"where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or purely personal one."` Fitz-Gerald v. Hull, 237 S.W.2d 256, 261 (Tex. 1951) (quoting "Sec. 225, 54 Am. Jur., `Trusts', p. 173.").
  
  Specifically, family relationships — where a person trusts in and relies upon a close member of her core family unit — may give rise to a fiduciary duty when equity requires. See Mills v. Gray, 210 S.W.2d 985, 986-89 (Tex. 1948) (mother-son fiduciary relationship). "When the societal relationship is one of loving family members or close personal friends, the justification for and reasonableness of reposing trust one in the other is readily understandable." Roy Ryden Anderson, The Wolf at the Campfire: Understanding Confidential Relationships, 53 SMU L. Rev. 315, 366 (2000).
  
  Courts generally refer to the informal fiduciary relationship as a "confidential relationship." Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 287-88 (Tex. 1998); see also Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 439 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). Subjective trust alone is not sufficient to establish a confidential relationship. Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962).
  
  Because not every relationship involving a high degree of trust and confidence rises to the stature of a formal fiduciary relationship, the law recognizes the existence of confidential relationships in those cases "`in which influence has been acquired and abused, in which confidence has been reposed and betrayed. . . .'" Tex. Bank & Trust Co., 595 S.W.2d at 507 (quoting Higgins v. Chicago Title & Trust Co., 143 N.E. 482, 484 (Ill. 1924)).
  
  Whether a confidential relationship exists is "determined from the actualities of the relationship between the persons involved." Thigpen, 363 S.W.2d at 253.
  
  The question is ordinarily for the jury in a jury trial where the material facts are disputed. See Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). "The problem is one of equity" and the circumstances giving rise to the confidential relationship "are not subject to hard and fast lines." Tex. Bank & Trust Co., 595 S.W.2d at 508.
  
  Factors include whether the plaintiff relied on the defendant for support, the plaintiff's advanced age and poor health, and evidence of the plaintiff's trust. Trostle v. Trostle, 77 S.W.3d 908, 915 (Tex. App.-Amarillo 2002, no pet.); see also Hasson, 286 S.W.3d at 14-16; Hatton v. Turner, 622 S.W.2d 450, 458 (Tex. Civ. App.-Tyler 1981, no writ); Holland v. Lesesne, 350 S.W.2d 859, 862 (Tex. Civ. App.-San Antonio 1961, writ ref'd n.r.e.). The trust must be justifiable. See Thigpen, 363 S.W.2d at 253.
  
  The record contains evidence of objective manifestations of Lenora's confidence and trust in Kimberly and Stephen, the closeness of their long-standing relationship, acquiescence in and support of the housing agreement, and conduct and affirmations that would justify Lenora's trust. Lenora's agreement with her daughter and son-in-law was known to Kimberly and Stephen, and their conduct, promise, tendered check, and letter indicate an agreement. Essentially, the trial court's judgment requires Kimberly and Stephen to honor their promise to give Lenora money for her house when they sold the property.
  
  "[F]iduciary relationships are not lightly created." Hasson, 286 S.W.3d at 19. Relatives assist people of advanced years or those who have health problems, and acts of kindness do not ordinarily give rise to fiduciary duties. The extraordinary facts of this case, including Kimberly's letter to Lenora and the Youngs' tender of the dishonored $6,000 check, indicate the parties' recognition of a confidential relationship and the fiduciary duty imposed. The tendered, though dishonored, check indicates Stephen and Kimberly knew that they should pay Lenora from the sale proceeds.
  
  The jury found that a fiduciary relationship existed. Reasonable and fair-minded jurors may differ with an appellate court on that conclusion, but on this record of disputed facts, the "jurors must be allowed to do so." See City of Keller, 168 S.W.3d at 822. "Jury trials are essential to our constitutionally provided method for resolving disputes when parties themselves are unable to do so." In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 211 (Tex. 2009). Fair-minded jurors could reasonably conclude that a confidential relationship existed, and that the confidence was betrayed. We cannot say the jury's findings are contrary to the overwhelming weight of the evidence and clearly wrong and unjust. We hold the evidence is legally and factually sufficient to support the jury findings challenged on appeal.

(2) In allowing the trial court's imposition of a constructive trust to remain undisturbed, the majority made these statements:

• The trial court's judgment imposes a constructive trust on the property which Kimberly and Stephen purchased in part with money from the sale of the house Lenora built. A constructive trust is an available remedy imposed to redress wrong or prevent unjust enrichment under the circumstances. See generally Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974) (constructive trust); Lesikar v. Rappeport, 33 S.W.3d 282, 303 (Tex. App.-Texarkana 2000, pet. denied) (A constructive trust is "a device equity uses to right a wrong.").
  
  In Mills v. Gray, a mother's property had been conveyed to a son. Mills, 210 S.W.2d at 986. The property was sold, and another house was purchased. The mother believed that the second house was to be taken in her name. Instead, the son took the property in his name. The mother sought at trial to prove the understanding of the parties at the time of the original conveyance to her son. Id. at 986-87. The trial court excluded the evidence. In the appeal, the Texas Supreme Court cited authority that "[a] parent and child, grandparent and child, or brother and sister relationship is not intrinsically one of confidence," but under certain circumstances may involve a confidential relationship, the abuse of which gives rise to a constructive trust in accordance with the terms of a promise. Id. at 988 (quoting "54 Am. Jur. 178, Sec. 233").
  
  The Court held the evidence should have been admitted in that case because "if the purported agreement and family arrangement had been established as true, a constructive trust would have arisen by reason of the confidential relation between the parties which would not fall within the prohibition of the Statute of Frauds or the Texas Trust Act." Id. at 989.
  
  In this case, the jury found a breach of fiduciary duty and determined the amount of damages. We need not decide whether the damage award is reasonable, because the Youngs do not challenge the amount of the damage award or the jury charge on appeal. Because a confidential relationship existed, Kimberly and Stephen had the burden of showing the fairness of the transaction. See Tex. Bank & Trust Co., 595 S.W.2d at 508-09.
  
  A court may impose a constructive trust on property obtained as a result of a breach of fiduciary duty. Omohundro v. Matthews, 341 S.W.2d 401, 404-05 (Tex. 1960). Under the circumstances, we cannot say the trial court erred in imposing a constructive trust. We overrule appellants' issues and affirm the trial court's judgment.

***************************************

Editor's Note: Typically, in a civil lawsuit brought by one claiming to have been victimized in a real estate transaction alleging a home equity ripoff, the burden of proof in establishing that the transaction was, in fact, an unfair deceptive ripoff is on the alleged victim.

However (and this case serves as a reminder), if the alleged victim can satisfactorily establish that a confidential relationship existed with the alleged scammer, the burden is shifted to the alleged scammer (ie. the beneficiary of the transaction) to prove the transaction fair and free from fraud and undue influence. Further, such a case can usually be established by parol evidence since such a situation typically falls outside the applicable Statute of Frauds. See, for example:

(a) Confidential Relationships, Statute Of Limitations & Sale Leaseback Peddler's Effort To Snatch Financially Strapped Couple's Home Equity,

(b) Suit: Accused Murderer Swiped $2M Interest In Apt. Bldg. From Elderly Stroke Victim, Used Rent Cash To Pay Legal Fees, Planned To Cash In, Leave Town,

(c) Real Estate Conveyances From Clients To Their Attorneys Are "Presumptively Fraudulent" Unless Lawyer Can Prove Otherwise.

Fla. Probe Into F'closure Fraud Winds Down With A Wimper; State AG's Office To Walk Away w/ Tail Between Its Legs While State Bar Continues To Snooze

In West Palm Beach, Florida, The Palm Beach Post reports:

• The news conference was called. A five-paragraph statement issued. It was Aug. 10, 2010, and then Florida Attorney General Bill McCollum, a candidate for governor, was making his move against three of the state’s largest and most feared foreclosure law firms — ones he suspected of illegally speeding cases through the courts with forged and fraudulent documents. Thousands of final judgments of foreclosure may have been the result of illegal activities, the news release said.
  
  Two years later, one firm has inked a settlement with the state. The Law Offices of Marshall C. Watson in March 2011 agreed to pay $2 million, but admitted no wrongdoing.
  
  The other law firm investigations, which came to total six by last summer, are “winding down,” Attorney General Pam Bondi’s office said Friday.
  
  A February court decision barring the state from issuing subpoenas to the firms means any enforcement action is “up to the discretion of the Florida Bar,” Bondi press secretary John Lucas said.
  
  The legal limbo has left homeowner advocates incensed and law firms befuddled. With no closure, the firms remain implicated in the public eye and on the state’s website, which lists them as under active civil investigations. With no closure and no one held accountable, there is no justice, anti-foreclosure activists say.

***

• Some have now turned their ire on the Florida Bar, which says it has power only to investigate individual attorneys, not law firms. Despite hundreds of foreclosure-related complaints against attorneys, not a single Florida lawyer who represents banks in foreclosure cases has been disciplined for foreclosure fraud by the Florida Bar.
  
  And all of the major players, including leaders of the Law Offices of David J. Stern and Boca Raton-based Shapiro & Fishman, remain members in good standing with the Bar.

For more, see Two years after foreclosure probe launched, investigation winds down (Blocked by legal decision, attorney general says any enforcement action is up to the Florida Bar).