Bay State Homeowner Ordered To Demolish Newly-Constructed Home Over Zoning Violations After Discovery That Town Issued Building Permit In Error; Family Estimates Losses Close To $500K

In Rockland, Massachusetts, MyFoxBoston reports:

• A Rockland man claims he was given the green light to build his three-bedroom house, but now he's being ordered to tear it down because of an alleged mistake made by the town.
  
  In 2010, Robert Del Prete reportedly purchased a lot at 320 Concord St. in Rockland from his father and uncle to make it useful. The land to the back of it, their old farm, was sold to make a golf course, and other family members live next door.
  
  "As far as the building inspector was concerned it was a grandfathered lot and he gave us the permit," Robert Del Prete told FOX 25.
  
  Del Prete and his wife Sheree say they sunk approximately $400,000 into building the home on the lot and even had a buyer lined up for the property.
  
  The potential buyer told the Del Pretes they were going to use the home to house adults with disabilities; however, around that same time, the town told the Del Pretes they gave the permit in error.
  
  And now, about three years after getting building and occupancy permits, the town is threatening to tear down the Del Prete's house and says Building Inspector Thomas Ruble shouldn't have issued the permits in the first place.
  
  Rockland town officials say the Del Pretes are in violation of zoning laws because they're about 3,700 square feet shy of the minimum buildable lot size in town.
  
  The lot also needs an extra 12 ½-feet of road frontage to comply with the law; however, Del Prete claims his abutter refuses to sell him the land.
  
  "The land doesn't comply for area. It didn't comply for frontage. And the property was not grandfathered," Rockland Town Administrator Allen Chiocca said.
  
  The Del Pretes estimate their losses on the home total about half a million dollars with legal bills. They've lost their business and they were forced to move into the Concord Street house after their personal home went into foreclosure.
  
  The town says they created their own hardship.
  
  The matter will be back in housing court later in August.

Source: Rockland family may be forced to demolish newly constructed home.

Court Nixes Ex-Wife's Belated Attempt To Invoke California's $100K Homestead Exemption To Justify Pocketing Tax Refund Proceeds That Victims Of Convicted, Ponzi-Scheming Ex-Hubby Were Entitled To

In Monterey, California, The Monterey Herald reports:

• When convicted embezzler Jay Zubick signed over all his assets to the victims of his $16 million Ponzi scheme in 2007, the agreement meant every penny, a judge ruled Friday.
  
  Judge Lydia Villarreal rejected a bid by Zubick's ex-wife to retain a $43,000 income tax refund she had received before Zubick's conviction.
  
  Suzanne Zubick, who was unaware of her husband's crimes and has since divorced him, reasoned that she signed over her Monterra house under duress and without knowing she had the right to invoke a statutory "homestead exemption." The exemption would have allowed her to keep $100,000 of the proceeds from the house's sale.
  
  Villarreal said the time for her to claim the exemption would have been in 2007 and the tax refund belongs to Jay Zubick's 29 victims.

***

• She said her life was turned upside down by the discovery of her husband's deceit. In one day, she went from believing her husband was dying to knowing he was a thief. She received telephone calls threatening her children, whose schools had to take measures to protect them.
  
  On the advice of her husband's criminal attorney, the Zubicks signed over all assets, including the Monterra house. They were allowed to take only the clothes on their backs and one change of clothing. The investors denied a request for the children's beds.

For the story, see Zubick embezzlement: Years later, victims, ex-wife fight over money.

Ex-Michigan High Court Justice Begins Prison Time At West Virginia's "Camp Cupcake" For Role In Using Short Sale Shuffle On Underwater Home To Hide $1M+ In Assets From Bank; Stay Expected To Be 9-10 Months On 366-Day Sentence

In Detroit, Michigan, The Detroit News reports:

• Former state Supreme Court Justice Diane Hathaway arrived at a federal prison in West Virginia on Tuesday to serve one year and a day for bank fraud, a crime critics said brought shame to the state’s highest court.
  
  Hathaway, 59, is the latest celebrity inmate at the prison in Alderson, W.Va., dubbed “Camp Cupcake” because of its mountainous setting and long list of perks, including access to washers, dryers, microwave ovens, hair dryers, curling irons and cosmetology areas where inmate-to-inmate pedicures and manicures are allowed.

***

• The 366-day sentence will allow Hathaway to get time off for good behavior, meaning her time in custody likely will be nine to 10 months. A Federal Bureau of Prisons spokesperson confirmed the former justice’s arrival at the prison.
  
  Prosecutors said Hathaway engaged in an elaborate two-year fraud scheme involving a Grosse Pointe Park home. She pleaded guilty in January to one count of felony bank fraud, eight days after she resigned from the bench.
  
  Prosecutors said Hathaway hid assets worth more than $1 million and misled a bank while negotiating a short sale. A short sale is when the lender allows the sale of a home that is worth less than the amount owed.

For more, see Ex-Michigan Supreme Court Justice Diane Hathaway starts prison sentence.

Religious Congregation Sues Its Treasurer For Allegedly Draining $1.1M+ Of Equity In Church Property With Multiple Mortgages, Diverting Proceeds For Personal Use While Allowing Loan Collateral To Be Lost In Foreclosure Sale

In Las Vegas, Nevada, Courthouse News Service reports:

• A Lutheran church sued its treasurer, claiming he embezzled $1.1 million - some of which he spent to buy land from a distant monastery.
  
  Amazing Grace Lutheran Church, of Las Vegas, sued Gregory R. Olson and Wells Fargo Bank, in Clark County Court. The church claims it hired Olson as its treasurer in May 2005, and he was embezzling before he'd been there a year.
  
  "From January 3, 2006 to September 18, 2009, defendant Olson without plaintiff Lutheran Church's approval, drew several checks from the account of plaintiff Lutheran Church in the amount of $1,123,279.84 for his own personal use," the complaint states.
  
  The church claims Olson took out five mortgages against church property without its permission and without notifying it.
  
  It claims that Olson was involved in a lawsuit about a property he had defaulted on, and he used some of the embezzled money to pay his legal expenses. He also bought a 2.5-acre parcel of land and told Amazing Grace he used his own money, according to the complaint.
  
  The church claims it lost title to its property through foreclosure, thanks to Olson's embezzlement.
  
  To top it off, Olson bought land from a monastery with the stolen money, according to the complaint.

For more, see Lutherans Say They Were Bamboozled.

Ex-Pastor Charged For Allegedly Using Short Sale Scam To Screw Financially Strapped Homeowner Out Of Nearly $150K While Leaving Existing Mortgage Unpaid

In St. Petersburg, Florida, The Tampa Tribune reports:

• The former pastor of a south St. Petersburg church who also founded a foreclosure-prevention company was booked into the Pinellas County Jail this week, accused of swindling nearly $150,000 from a Palm Harbor woman who no longer could afford to live in her house.
  
  Demetrius Antonio Lewis, 38, of Wesley Chapel, was charged with grand theft and money laundering. Bail was set at $200,000.
  
  Lewis once was the pastor at the Grand Central Progressive Missionary Baptist Church, 1401 18th Ave. S., but it has been years since he officiated there, parishioners say. Records show he also incorporated a business called Help Is Here Foreclosure Prevention and Credit Repair, though state records show the company as inactive.
  
  The charges against Lewis are just his most recent brush with the law.
  
  Last year he was charged with tax fraud after investigators maintained he received and cashed fraudulent tax refund checks issued in the names of eight different people.
  
  And the year before that, he was accused of taking part in a real estate scam in which authorities say he and an accomplice rented vacant properties they did not own.
  
  In the Pinellas case, Lewis had an alleged accomplice, Eric Leroy Green, the head of the south St. Petersburg charity Everyone’s Youth United, court records state.
  
  Green was arrested in June on the same charges leveled against Lewis, in what was the latest spin in the charity’s downward spiral. Everyone’s Youth United lost most of its funding in 2008.
  
  On Wednesday, in a telephone interview, Green distanced himself from Lewis, portraying himself as a victim of one of Lewis’s schemes.
  
  “We just happened to be in the trail that he, you know, rode down and used us after coming up with one of his schemes ... and unfortunately implicated us as we now know.”
  
  According to court documents, Green told Pinellas sheriff’s Detective David Kavanagh the two men’s financial arrangement was set in motion after he discussed Everyone’s Youth United’s financial turmoil with Lewis.
  
  The victim was Dorothea Giordano, who by 2010 no longer could afford to live at her house at 2492 Glenpark Road in Palm Harbor, court documents show. A close friend of Giordano’s, Jack Dvorak, agreed to buy it from her but allow her to continue living there.
  
  Giordano had been introduced to Lewis, who identified himself as an expert in real estate short sales, and who offered to broker the sale.
  
  As the deal was progressing, the pastor communicated with a Safety Harbor title company, Online Title Services, which was run by real estate agent Cheryl Slaughter, the court documents state. He introduced a woman to Slaughter as a representative of Giordano’s bank, Allied Home Mortgage.
  
  The woman, identified as Tamkea Womack, sent Slaughter an email indicating Allied had approved the short sale, as long as the amount to settle the mortgage was $143,500, the documents state.
  
  The money was to be disbursed to an entity called EYU Inc. EYU was represented as an investor, but is the acronym for Everyone’s Youth United, the documents state.
  
  After the money changed hands on Sept. 27, 2010, Allied Home Mortgage told Slaughter the woman and the company she supposedly was representing, M Caster Home Finance, were not affiliated with Allied, and the money had been improperly disbursed, the documents state. Slaughter called the sheriff’s office.
  
  After the $143,500 was transferred, Green wrote checks totaling more than $10,000 — a check for an employee for $1,000 and a check of $9,700 for Construction Specialties, which is owned by his mother, records show.
  
  He also arranged for his mother to deposit $60,000, telling her the money was a payment to Everyone’s Youth United for a fair he had put on for an organization. Green put the money in his personal account, according to investigative records. Green also got a cashier’s check of $59,000 for Lewis, the documents state.

Source: Ex-pastor accused of bilking $150K.

Lehigh Valley Man Faces Forgery, Theft/Securing Execution Of Documents By Deception, Other Charges For Allegedly Ripping Off His 93-Year Old Uncle Of $200K+ Cash/Other Assets; Suspect Allegedly Abused POA To Drain Bank Accounts, Home Equity With HELOC While Since-Foreclosed Victim Was Confined In Nursing Home

In Lehigh Valley, Pennsylvania, The Express Times reports:

• A Pen Argyl man is charged with 17 counts of theft and related crimes for depleting the life savings of his 93-year-old uncle by using power of attorney and converting property and money for his personal use, according to the Lehigh County’s District Attorney’s Office.
  
  Scott Lee Bartholomew, 52 of the 100 block of Acker Street, is accused of stealing more than $200,000 from his uncle, Wilbur B. Stiles, authorities said. The crimes happened from January 2006 to June 2012, the district attorney’s office said.
  
  Because he lost his home to foreclosure and his life savings, police said, Stiles is living in a veterans center in the Scranton, Pa., area.
  
  Bartholomew is being held in Lehigh County Prison in lieu of 10 percent of $200,000 bail.
  An investigation by South Whitehall Township police, with help from the Institute for Protective Services at Temple University, alleged that a minimum of $217,498 had been diverted from Stiles to Bartholomew, authorities said.
  
  According to an affidavit filed by South Whitehall police Sgt. Michael A. Sorrentino, Sorrentino conducted numerous interviews with agencies and individuals since December 2012 when investigators learned Bartholomew was acting with power of attorney for Stiles.
  
  Bartholomew did not make the required payments of $6,050 for the care of Stiles from March 2011 to April 2011, while Stiles was a resident of Cedarbrook Nursing Home in South Whitehall, officials said.
  
  Bartholomew gained control of Stiles’ finances and directed money from Stiles’ accounts to make unauthorized purchases of vehicles, Internet items and gaming purchases, authorities said.
  
  They allege Bartholomew made cash withdrawals, paid legal fees of an acquaintance, paid tax bills for property not owned by Stiles, and paid for cellphones and cellphone plans not used for Stiles.
  
  Additionally, police said, Bartholomew used the money on meals and entertainment for himself and others, and operational fees as an owner/operator of a sole proprietorship trucking company. None of it was reimbursed to Stiles’ accounts, police said.
  
  Investigators allege that Bartholomew converted Stiles’ savings account, insurance policy, retirement income, real estate, motor vehicles, personal property and savings bonds for Bartholomew’s personal use.
  
  Bartholomew also obtained a home equity line of credit and converted about $133,526 for his personal use, according to police. They also said almost $89,973 was taken from Stiles’ checking account.
  
  Bartholomew is alleged to have used the equity in Stiles’ residence for his personal gain. The property ultimately was placed into foreclosure, authorities said.
  
  Bartholomew was charged with four counts of theft by unlawful taking, three counts of theft by deception, five counts of receiving stolen property, one count of theft by failure of to make required disposition of funds and one count of access device fraud -- all third-degree felonies.
  
  He is also charged with one count of forgery and two counts of securing execution of documents by deception, police said.

Source: Nephew stole 93-year-old's life savings, Lehigh County authorities say.

Saga Continues For Maine Family Victimized By State Bureaucrats Who Allegedly Used Conservatorship Proceedings To Move In & Hijack Possession, Then Unload, Waterfront Home, Other Assets At Fire-Sale Prices Of Man Who Was Involuntarily Admitted To State-Run Psychiatric Facility While Giving Beloved Pet Date With 'The Euthanizer'

In Rockland, Maine, the Bangor Daily News reports:

• The sale of a Rockland man’s waterfront home in Owls Head by the state for less than half its value was only the beginning of a nightmare that has seen an undetermined amount of valuable personal items sold for little in return, according to attorneys working on the case.
  
  “You couldn’t have dreamed this up,” said attorney David Jenny.
  
  Jenny, who lives in Owls Head and Maryland, is referring to the case that involves the sale of property belonging to William T. Dean Jr. and his sister Claire Dean Perry of Liberty.
  
  Dean was hospitalized in 2012 at the state-run Dorothea Dix Psychiatric Center in Bangor. He has since been released and lives in a group home in Camden, according to Jenny, who is a longtime friend of both siblings.
  
  Jenny said that the state has taken a man who had more than $650,000 in assets and virtually assured that he will he become a ward of the state because of its management of his estate.
  
  Attorney Cynthia Dill, who represents the sister in a lawsuit against the Maine Department of Health and Human Services, said in her legal career she has never seen a case like this.
  
  Not only does Dill say the state illegally sold the home owned by William Dean at 9 Castlewood Lane in Owls Head, but that it has since hired an auction company to sell the remaining family belongings and has done it with few records to show what has happened to the items or the money received from the sales.
  
  The Deans’ parents in 1972 bought the Castlewood Lane home, which has since been a place for family outings. Claire Dean Perry had been living in the Owls Head home while her brother resided at 298 Broadway, Rockland, which had been their parents’ primary residence and owned by the Deans since 1957.
  
  The state obtained conservatorship of Dean’s finances in September 2012, four months after he was involuntarily admitted to the state-run mental health hospital. When the state learned that back taxes were owed on both properties — $5,192 on the Owls Head home and $2,329 on the Rockland property — it sought and received permission from the Penobscot County Probate Court to sell the properties for a fair market price in order to cover those costs.
  
  An affidavit filed Sept. 5, 2012, in probate court by Janice Archer, a licensed social worker for DHHS who was Dean’s caseworker, stated that there was already a buyer interested in the Owls Head property. The name of the interested party was not listed and a call to Archer early Wednesday has not been returned.
  
  Claire Dean Perry was kicked out of the house and the locks changed, Dill said.
  
  Perry and other family members, however, contested the move by the state, saying they could raise the money to prevent both properties from going into foreclosure for nonpayment of the approximately $7,500 in property taxes.
  
  The state, however, moved ahead quickly and sold the Owls Head waterfront property to James Taylor of Danvers, Mass., and Owls Head for $205,000, less than half the $476,840 value placed on it by the town.
  
  The human services department moved the date of the sale up by a day to Jan. 9, knowing that the family was going to court the following day to block the transaction, Jenny said.
  
  The Owls Head property consists of nearly 1 acre with 100 feet of ocean frontage and a two-story, 1,000-square-foot home.
  
  After selling the Owls Head property, the state turned to disposing of the Rockland home. The state had reached an agreement with a party that was willing to pay $65,000 for the Rockland property that was assessed at $177,200 — again less than half its value. Dill said the potential buyers backed out after learning of the family’s looming legal challenge.
  
  The state surrendered its conservatorship in March. On Aug. 1, the probate court appointed Dean’s cousin, Pamela Vose of Union, as conservator over his remaining properties.
  
  But Jenny and Dill said that after the sale of the Owls Head home and before the change in conservatorship, there was a fire sale of possessions owned by both Dean and Perry for reasons they cannot understand.

***

• Dill also noted that when state officials took control of Dean’s properties, they had his beloved cat, Caterpillar, euthanized without asking family members if they could care for the animal.

For more, see Attorneys: State officials hired company to auction hospitalized Rockland man’s possessions for well below value.

For an earlier story on this fiasco, see Family claims state held fire sale of patient’s coastal property, euthanized pet.

More On "Show Me The Note!"

The following is the abstract of a recent article by law professors Bradley T. Borden & David J. Reiss, and law student William KeAupuni Akina, all of Brooklyn Law School, published in a recent issue of Westlaw Journal Bank & Lender Liability (June 3, 2013):

• News outlets and foreclosure defense blogs have focused attention on the defense commonly referred to as "show me the note." This defense seeks to forestall or prevent foreclosure by requiring the foreclosing party to produce the mortgage and the associated promissory note as proof of its right to initiate foreclosure.
  
  The defense arose in two recent state supreme-court cases and is also being raised in lower courts throughout the country. It is not only important to individuals facing foreclosure but also for the mortgage industry and investors in mortgage-backed securities.
  
  In the aggregate, the body of law that develops as a result of the foreclosure epidemic will probably shape mortgage law for a long time to come.
  
  Courts across the country seemingly interpret the validity of the "show me the note" defense incongruously. Indeed, states appear to be divided on its application. However, an analysis of the situations in which this defense is raised provides a framework that can help consumers and the mortgage industry to better predict how individual states will rule on this issue and can help courts as they continue to grapple with this matter.

For the entire article, see Show Me the Note!

Toxic Land Titles & Title Insurance

The following is the abstract of a recent article by Molly Rose Goodman, Suffolk University Law School published in a recent issue of Real Estate Law Journal:

• By failing to properly transfer ownership of loans and mortgages, recording fraudulent documents, and performing unlawful foreclosures, financial institutions and law firms have generated property titles that range from defective to toxic.
  
  Those actions evince a systemic failure to comply with longstanding principles of real property law and regulations governing financial transactions. Title companies participated in title services and issued title insurance policies throughout the housing boom and although they did not directly cause toxic titles, many title insurers have ultimately assumed the risk for the bad practices that became the industry norms in the last decade.
  
  In this article, I will discuss how title insurers have exposed themselves to liability for toxic titles.

For the entire article, see The Buck Stops Here: Toxic Titles and Title Insurance.

The Payday Playbook: How High Cost Loan Peddlers Fight To Keep Their Consumer Debt Traps Legal

Investigative reporter Paul Kiel writes in ProPublica:

• [O]utrage over payday loans, which trap millions of Americans in debt and are the best-known type of high-cost loans, has led to dozens of state laws aimed at stamping out abuses. But the industry has proved extremely resilient. In at least 39 states, lenders offering payday or other loans still charge annual rates of 100 percent or more. Sometimes, rates exceed 1,000 percent.
  
  Last year, activists in Missouri launched a ballot initiative to cap the rate for loans at 36 percent. The story of the ensuing fight illuminates the industry’s tactics, which included lobbying state legislators and contributing lavishly to their campaigns; a vigorous and, opponents charge, underhanded campaign to derail the ballot initiative; and a sophisticated and well-funded outreach effort designed to convince African-Americans to support high-cost lending.

For more, see The Payday Playbook: How High Cost Lenders Fight to Stay Legal.

This article is part of an ongoing ProPublica investigation: Debt Inc.: Lending and Collecting in America (How lenders tempt consumers with high-cost credit products that go far beyond payday loans).

WV Attorneys Providing Free Legal Services To Low-Income Consumers Continue Hammering Banksters With Predatory Lending Lawsuits Alleging Ripoffs In Originating Home Loans

In Huntington, West Virginia, The West Virginia Record reports:

• A lawsuit filed against Nationstar Mortgage LLC alleging predatory lending practices has been removed to federal court. Nationstar is formerly known as Centex Home Equity Company. Mark Greenlee was also named as a defendant in the suit.
  
  The lawsuit has been removed to federal court because the amount they are seeking exceeds the $75,000 requirement, according to a Notice of Removal filed July 25 in the U.S. District Court for the Southern District of West Virginia at Huntington.
  
  The loan amount was for $76,500, according to the Notice.
  
  Greenlee was also “fraudulently joined in this action and, thus, should be disregarded for diversity purposes,” according to the Notice of Removal.(1)
  
  Adam West first moved into his home in Hurricane in 1998, when he agreed to purchase the home pursuant to a land contract for $55,000, according to a complaint originally filed May 2 in Putnam Circuit Court.
  
  West claims in November 1999, when the land contract vendor began experiencing financial problems and West’s mother arranged to finance the remaining balance on the land contract.
  
  In early 2000, West sought to obtain a loan to repay his mother and closed on a loan with UC Lending on April 25, 2000, with a principal balance of $66,700, according to the suit.
  
  On Aug. 18, 2001, Adam West and Bethany West were married and she moved into the home with him, and the plaintiffs went to Lending Tree, an online service, to find a lender.
  
  The Wests claim a few days later, Nationstar contacted them to solicit them into a loan for refinancing and they asked for a fixed rate loan and Nationstar informed them an adjustable rate loan would be best for them.
  
  Nationstar arranged for Greenlee to appraise the Wests’ home, according to the suit, and Greenlee, who has a practice of providing inflated appraisals, provided them with an inflated appraisal and indicated their home was more than $76,000 when it was, in fact, worth approximately $55,800.
  
  The Wests claim after making payments for one year, they contacted Nationstar about promised refinancing, but Nationstar refused to refinance the loan.
  
  Nationstar refused to apply payments to the Wests’ account and charged them illegal fees, according to the suit.
  
  The Wests are seeking compensatory and punitive damages. They are being represented by Colten L. Fleu and Jennifer Wagner of Mountain State Justice.(2)

Source: Nationstar Mortgage suit removed to federal court.

(1) See, generally, Erroneous Removal As A Tool For Silent Tort Reform: An Empirical Analysis Of Fee Awards And Fraudulent Joinder for more on the 'cat-and-mouse' games played by state court plaintiffs and defendants jockeying around to either move or block moves of state court cases into federal court.

See also, Bankster Fails In Attempt To Have Suit Accusing It Of Mortgage Flipping Racket Heard In Federal Court; U.S. District Judge 'Abstains' From Hearing Suit, Boots Case Back To State Court, Saying There's No Pressing Federal Interest To Decide Matter Entirely Involving Unsettled Issues Of WV Law.

(2) Mountain State Justice is a non-profit public interest law office dedicated to pursuing impact and significant litigation on behalf of low-income West Virginians. MSJ provides free legal services in our areas of practice to qualifying individuals. MSJ's work currently focuses primarily on combating predatory lending and abusive debt collection techniques through individual and class action lawsuits..

NC Appeals Court Leaves Sloppy Lender Holding The Bag By Voiding Wife's Loan Guarantee Given By Hubby Acting As Her Attorney In Fact; Bank Failed To Read Recorded Instrument, Missed 'Surprise' Provision In POA Making Husband's Authority Ineffectual

From a client alert from the law firm Poyner Spruill LLP:

• On November 6, 2012, the North Carolina Court of Appeals ruled in a unanimous decision that several commercial guaranties were invalid when signed by an attorney in fact, pursuant to a power of attorney which contained a condition precedent that had net yet occurred. This case contains important lessons for lenders regarding transactions with attorneys in fact.
  
  In this case, the appellant-wife executed a durable power of attorney appointing her husband as her attorney in fact. The power of attorney was properly recorded with the Wake County Register of Deeds.
  
  After the execution and recordation of the power of attorney, the husband and his business partner, through various business entities, borrowed money from plaintiff-lender. The husband signed a series of commercial notes, unconditional personal guaranty agreements, and a deed of trust in his wife’s name, relying on the power of attorney. The notes went into default, and the lender/plaintiff commenced foreclosure proceedings. The sale of the collateral yielded less than the outstanding obligations, and the plaintiff sued the borrowers and guarantors – including the wife - to recover the deficiency balance. The trial court granted the plaintiff’s motion for summary judgment as to all defendants.
  
  On appeal, the wife argued that the power of attorney was ineffective, and she should not be bound by the guaranty executed by her husband as her attorney in fact.
  
  The power of attorney contained a provision titled “RESTRICTIONS ON EXERCISE OF POWERS BY ATTORNEY-IN-FACT” which stated that “the rights, powers, duties and responsibilities herein conferred upon my Attorney-in-Fact shall not be exercised by my Attorney-in-Fact until a physician has certified to my Attorney-in Fact that in his or her opinion I am no longer able…to handle my…affairs.”
  
  The Court of Appeals reversed the decision of the trial court, holding that no power of attorney ever vested in the husband, that the wife’s guaranty was invalid, and that the plaintiff was not entitled to recover from the wife as a guarantor.
  
  First, the Court of Appeals agreed with the wife that the power of attorney was ineffective because there was no evidence in the record indicating that the wife had been certified incompetent by a physician, which was a condition precedent to the effectiveness of the power of attorney. Since there was no evidence that the wife was certified incompetent by a physician, no power of attorney ever vested in her husband, and he had no authority to bind her to the guaranty.
  
  Further, the Court of Appeals held that the plaintiff was deemed to be on notice of any limitation or restriction contained in the power of attorney as it was in writing and “a third party who fails to inspect a POA’s terms does so at his own peril since he is deemed on notice of the limitations and restrictions contained therein.”
  
  Nor could the plaintiff argue that it justifiably relied on the husband’s representations of authority based upon the broad grant of authority and the third party reliance provisions contained in the North Carolina General Statutes. Despite the broad grant of authority contained in the statutes, the statutes did not override the restriction that the wife be certified incompetent by a physician. Here, the power of attorney conferred no powers upon the husband because the condition precedent never occurred.
  
  Likewise, statutes which generally protect third parties who rely on the apparent authority of an attorney in fact, did not apply because the plaintiff had constructive notice of the terms of the power of attorney, which was part of the public record, and the power of attorney indicated that there was no apparent authority for the husband to execute the guaranty on behalf of his wife.

For more, see Read the Fine Print! Restrictions in a Power of Attorney May Invalidate Loan Documents.

For the ruling, see Suntrust Bank v.C & D Custom Homes, LLC, 734 SE 2d 588 (N.C. App. 2012).

Judge To Those Facing (Potentially Faulty) Non-Judicial Oregon Foreclosures: Avoid "Presumption Of Finality" - Don't Sit On Your Rights; Time For Properly-Noticed Homeowner To File Court Challenge Is Before The Sale, Not Afterward

In Portland, Oregon, LegalNewsline reports:

• A federal judge ruled last month that an Oregon homeowner could not sue following a completed trustee sale of his property.
  
  Though MERS, the national mortgage registry, was not a party to the action, the plaintiff in the case — Alan Chen — alleged that the foreclosure was wrongful based, in part, on MERS’ role in his deed of trust.
  
  The named defendants in the suit included: Bank of America N.A., ReconTrust Company N.A. and Federal National Mortgage Association, also known as Fannie Mae.
  
  In Chen v. Bank of America N.A., Judge Owen M. Panner for the U.S. District Court for the District of Oregon dismissed the complaint with prejudice. He found that, in accordance with the Oregon Trust Deed Act, Chen received proper notice of the sale, which barred his post-sale challenges to the foreclosure.
  
  “Although plaintiff here had sufficient time to raise any of the current challenges before the sale, he chose instead to raise such challenges after the trustee’s sale and recording of the trustee’s deed,” Panner wrote in his five-page order, filed July 25.
  
  The judge further held that “plaintiff’s challenges to the trustee’s sale are barred, as plaintiff’s interest in the property was ‘foreclosed and terminated.’”
  
  Chen asked the court’s permission to amend his complaint to align his allegations with the recent Brandrup v. Recontrust and Niday v. GMAC decisions from the Oregon Supreme Court.
  
  In both cases, the state’s high court ruled MERS did not meet the statutory definition of trust deed “beneficiary” under Oregon law.
  
  Panner denied the request, finding an amended complaint “would be futile” because Brandrup and Niday dealt with pre-sale challenges to non-judicial foreclosure sales as opposed to Chen’s post-sale challenges, which are barred under state law.(1)

For the story, see Federal judge dismisses wrongful foreclosure complaint involving mortgage registry.

For the court ruling, see Chen v. Bank of America, N.A., 3:12-cv-194-PA (July 25, 2013).

(1) Judge Panner's discussion on the applicable law follows:

• After briefings and arguments in this case, I issued an opinion in a case involving similar issues. See Mikityuk v. Northwest Tr. Servs., Inc., 2013 WL 3388536 (D. Or.). There, plaintiffs waited nineteen months after the sale before filing the complaint. Id. at *1. After examining both ORS 86.770(1), which states the trustee's sale "forecloses and terminates" one's property interest in certain scenarios, and the dual objectives of the Oregon Trust Deed Act, I concluded:
  
  "The legislature provided notice and reinstatement provisions to protect grantors against the threat of wrongful foreclosure. [Staffordshire Investments, Inc., v. Cal-Western Reconveyance Corp., 209 Or. App. 528, 542 (2006).] Voiding the sale here would encourage" grantors who receive notice of a sale to sit on their rights, rather than compelling grantors to bring pre-sale challenges to a trustee's sale. Grantors are wise to raise any challenges to non-judicial foreclosure proceedings, including challenges based on ORS 86.735, before the statutory presumption of finality contained in ORS 86.780. Post-sale challenges run the risk of being barred, as is the case here, because the grantors' interest in the property was "foreclosed and terminated" pursuant to ORS 86.770(1)."
  
  Mikityuk, 2013 WL 3388536 at *10.
  
  Like the plaintiffs in Mikityuk, plaintiff's challenges to the non-judicial foreclosure sale here are barred. As plaintiff received advance notice of the sale, his interest in the property was "foreclosed and terminated." ORS 86.770(1). Plaintiff's argument that notice here was ineffective because it was not signed and dated by a notorial officer is meritless. The time to make such a challenge is long passed. As discussed in Mikityuk, the notice provisions of the Oregon Trust Deed Act reflect the legislature's intent to provide those whose property interests could be affected by a trustee's sale sufficient time to act to protect those interests before the sale. 2013 WL 3388536 at *6 (citing Staffordshire Investments, Inc. V. Cal-Western Reconveyance Corp., 209 Or. App. 528, 542 (2006); NW Property Wholesalers, LLC v. Spitz, 252 Or. App. 29, 34 (2012)).
  
  Although plaintiff here had sufficient time to raise any of the current challenges before the sale, he chose instead to raise such challenges after the trustee's sale and recording of the trustee's deed. Plaintiff's challenges to the trustee's sale are barred, as plaintiff's interest in the property was "foreclosed and terminated." Mikityuk, 2013 WL 3388536 at *10; ORS 86.770(1). For the reasons discussed in Mikityuk, this action is dismissed, with prejudice.
  
  Additionally, plaintiff's request for leave to file an amended complaint [#46] is denied.. Plaintiff seeks to amend the complaint, purportedly to align with the recent Oregon Supreme Court opinions in Brandrup v. ReconTrust Co., 353 Or. 668 (June 6, 2013) and Niday v. GMAC Mortgage, LLC, 353 Or. 648 (June 6, 2013). Those opinions concerned MERS and the Oregon Trust Deed Act. An amended complaint, however, would be futile. Brandrup and Niday dealt with pre-sale challenges to non-judicial foreclosure sales. Neither case affects the outcome here, where plaintiff's claims are barred due to ORS 86.770(1). See Mikityuk, 2013 WL 3388536 at *1 n.2.