BDF Hopkins Evidence for the Lender Lacks Credibility and Prima Facie Evidence to Warrant Foreclosure

LIT UPDATE

JUN 11, 2024

Round 2 at the Fifth Circus

SEP 26, 2023 | REPUBLISHED BY LIT: SEP 29, 2023

Paul is a problem solver and Texas lawyer.
Paul has a home.
Paul knows Shelley Hopkins, agent for the Fifth Circus.
They both issued an Opinion this week.https://t.co/hB7QnocIrO (res judicata, they say).
LIT’s prior article about Paul, CA5 n’ BDF Hopkins.https://t.co/84AWyW9oKj

— lawsinusa (@lawsinusa) September 29, 2023

Fifth Circuit Judges aka “No Free Houses” Higginbotham, “The Forgetful Constitutionalist” Willett and “the Insurance Scammer” Duncan Comprise this Whiteout Foreclosure Panel

AUG 30, 2021 | REPUBLISHED BY LIT: SEP 6, 2021

LIT COMMENTARY

The argument by the panel: “There is no evidence in the record that Paul Stafford provided the lender or loan servicer with a written change of address. That they had his new address is of no legal consequence.” is absurd.

Bank of America Home Loans sent out the notices in 2015 to both addresses for Stafford on the same day. How would BOFA know the new address unless the Staffords advised them?

Exhibit A-5, Doc 21-1 shows in 2017 it was BDF Hopkins who sent out the notices and not Bank of America. Hence, BDF, care of the mortgage servicer, would have received or would enjoy full access to the loan file with notes – as is required by the CFPB to comply with the law. It would also appear the failure to send a copy to the current known address of the Staffords was therefore intentional and with malicious intent.

Either way, the full loan file with notes should provide clarity on this issue and as such the Staffords claims could and should have defeated summary judgment. The case at minimum warranted reverse and remand with instructions to provide the Staffords with the full loan, including notes to ascertain how BOFA knew to send the notice to both addresses on the same day and yet BDF chose not to send it to both.

Furthermore, it could also shed light on the Staffords other claim about “The lender sent the notice of default on January 15, 2015. However, the lender later indicated that the loan entered default in April 2015. The Staffords argue that they could not have received notice in January of a default that did not occur until April.” The court goes off in a tangent regarding this critical admission. What’s important is the fact it questions the credibility of the lender and/or affidavit in support.

The affidavit of Michael J. Paterno, Ex. A, executed on 9 Oct., 2019 is not credible and lacks the “personal knowledge” required.

First, he admits Fay Servicing received the loan file and documents and those become business records for Fay and as such he has personal  knowledge of them in order to sign the affidavit under the penalty of perjury. BOFA sent the notices in 2015 to both of Staffords addresses. Paterno admitted to this in his affidavit, point 8.

Second, Paterno confirms at point 9 in his affidavit, that the 2017/18 “Notices of Acceleration were sent to Plaintiffs by counsel for Wilmington.”  As such, Paterno could not possibly personally know the facts surrounding the notices sent by BDF Hopkins, nor why the notices were not sent to both addresses. Indeed, Paterno does not attest to personally know about these facts in his affidavit, as required in law.

See; Perkins v. Bank of Am., 602 F. App’x 178, 5 (5th Cir. 2015) (“The record contains both a copy of the notice of default that was sent to Perkins and an affidavit of Cynthia Durant-Foor, an employee of National Default Exchange L.P., which was the service provider for Barrett Daffin.

Durant-Foor states in her affidavit that “[to] the best of my knowledge and belief, proper notice of default was served prior to acceleration of the indebtedness.”

She further states in her affidavit that

“[a]ll obligations and duties of the Mortgage Servicer were provided in the manner required by law.”

Durant-Foor’s affidavit is prima facie evidence that the notice of default was sent in compliance with Tex. Prop. Code § 51.002. See Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249, 256 (5th Cir. 2013) (holding that BAC had satisfied its burden of proof that a notice of sale had been sent by showing proof of the mailing and by submitting an affidavit).”)

In short, Paterno’s affidavit is not prima facie evidence.

In summary, it is also very noticeable that the case commenced on Dec 13, 2018 and  9 months or so later Hopkins appears on Oct 1, 2019, a motion for summary judgment is filed on Oct 10 with the affidavit by Paterno signed on Oct 9 and by March 30, 2019  and without any discovery or depositions in the interim period, the court grants the lender summary judgment. This happens all to often in pro se foreclosure cases where BDF Hopkins are involved and it’s all premeditated.

Before Higginbotham, Willett, and Duncan, Circuit Judges. Per Curiam:*

After defaulting on their mortgage payments, Paul and Telea Stafford sued their lender in an attempt to stave off a foreclosure. They contend that the lender breached the loan agreement by (1) sending a notice of default that did not correspond to the date of default and (2) failing to send the notice of acceleration to Paul Stafford’s correct address.

The district court granted summary judgment for the defendants.1 We affirm.

The Staffords first challenge the timing of the notice of default and the apparent date of default. Before the district court, they raised this argument ambiguously, if at all.

Generally, arguments not raised before the district court are waived.

State Indus. Prods. Corp. v. Beta Tech., Inc., 575 F.3d 450, 456 (5th Cir. 2009).

In any event, the argument fails.

The lender sent the notice of default on January 15, 2015. However, the lender later indicated that the loan entered default in April 2015. The Staffords argue that they could not have received notice in January of a default that did not occur until April.

The January notice, they contend, was thus ineffective.

Though logical on its face, the Staffords’ argument ignores important context.

It is undisputed that the Staffords defaulted on the loan in December 2014.

They then made partial payments, which the lender applied to the loan.

As a result, the contractual due date for the accelerated loan was April 1, 2015.

The Staffords don’t contest the lender’s authority to apply the partial payments to the loan instead of to cure the December 2014 default.

And the Staffords provide no support for their contention that they should have received an additional notice of default after April 2015.

The Staffords next argue that the lender sent the notice of acceleration to Paul Stafford at the wrong address, rendering it ineffective.

The lender sent the notice of acceleration to the mortgaged property in October 2018.

But Paul Stafford had not resided at that address since 2013.

And the lender had knowledge of his new address—it sent the January 2015 notice of default to him there.

The Staffords therefore argue that the lender should have sent the October 2018 notice of acceleration to his new address, rather than to the address of the mortgaged property where he had not resided for years.

Practically, yes. Legally, no.

Texas law required the lender to serve Paul Stafford at his “last known address.”

Tex. Prop. Code § 51.002(e).

And “for a debt secured by the debtor’s residence,” the “last known address” is statutorily defined as “the debtor’s residence address unless the debtor provided the mortgage servicer a written change of address before the date the  mortgage  servicer  mailed  a  notice  required  by  Section  51.002.”

Id. 51.0001(2)(A).

There is no evidence in the record that Paul Stafford provided the lender or loan servicer with a written change of address.

That they had his new address is of no legal consequence.

AFFIRMED.