Saturday, March 25, 2017

Fed Court Spanks Borrower for Ignoring Terms of Mortgage

Borrower and Creditor MUST Give Notice and Opportunity to Cure before Suing


Jennifer Sandoval bought a Florida home with money she borrowed from Suntrust Bank and secured the debt with a mortgage.  She later obtained a loan modification, and later defaulted on the loan. The creditor hired law firm Ronald R. Wolf & Associates to sue Sandoval for breach of contract and to foreclose the loan.  Sandoval hired a lawyer who sent a Qualified Written Request letter to Suntrust, and Suntrust responded with a letter explaining the requirements for reinstatement. Wolf charged fees for the reinstatement to bring the loan current and dismiss the foreclosure.  Sandoval sued Suntrust and Wolf in the Southern District of Florida US District Court for violating RESPA, FCCPA, and FDCPA (Real Estate Settlement Procedures Act, Florida Consumer Collection Practices Act, and Fair Debt Collection Practices Act).

Suntrust filed a motion to dismiss the case for failure to state a claim for which the court could grant relief.  The court dismissed the case against Suntrust with prejudice, and then amended the dismissal.  The reader should take note of three important factors in the issue:
  1. Suntrust did not violate any of those laws in the manner Sandoval alleged; and
  2. Most importantly, Sandoval had failed to allege in her compliant that she had given Suntrust the statutory and contractually required notice of grievance and opportunity to cure prior to suing Suntrust.
  3. The court amended its dismissal order as follows (emphasis added):
"The Court’s January 19, 2017 Dismissal Order is AMENDED as follows: While the FDCPA and RESPA claims against SunTrust are dismissed with prejudice, the FCCPA against SunTrust is dismissed without prejudice, with leave to provide mandatory pre-suit notice to SunTrust of the alleged FCCPA violation and an opportunity to cure, prior to initiating a lawsuit against SunTrust that attempts to state a claim for a violation of the FCCPA. Because the dismissal of the FCCPA claim is without prejudice to Plaintiff attempting to comply with the requirements of the preceding paragraph, Defendant SunTrust’s Motion for Entry of Final Judgment Pursuant to Rule 54(b) [DE 69] is DENIED WITHOUT PREJUDICE."
Thus it becomes clear that Sandoval has no more opportunity in this matter against Suntrust in federal court, and if she decides to sue Suntrust in state court for FCCPA violations, she must first send Suntrust a proper notice of grievance and give Suntrust an opportunity to cure, because her mortgage contract requires it.

Why You Should Always Read Your Contract

The mortgage and the note comprise a single legal contract even though they exist in separate documents.  Sandoval's failure to give notice and opportunity to cure constituted a breach of that contract, specifically of the second paragraph of section 20 of the uniform Form 3010: Florida Mortgage security instrument.    The mortgage, in section 20, provides the following (red emphasis added):
"Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.  If Applicable Law provides a time period which must elapse before certain action can be taken, that time period will be deemed to be reasonable for purposes of this paragraph.  The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and the notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20."
The mortgage, in Section 22, imposes a similar obligation, in bold face type, on the creditor:
"Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise).  The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property.  The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure.  If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding.  Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence. "
Notice that section 20 refers to "Applicable Law."  That could refer to state law, or to federal (e.g., RESPA) law.  The applicable federal law, RESPA, (at 12 USC 2605(e)) obligates the servicer to acknowledge receipt of a Qualified Written Request or answer it within 20 business days (about 4 weeks) , and to answer it within 60 business days (about 3 months). Regulation X in the Code of Federal Regulations requires the lender to acknowledge a notice of error (grievance) within 5 days (about 1 week) and correct the error within 30 days (about 6 weeks).  Read 12 USC 2605 and the corresponding part of Regulation X in the Code of Federal Regulations 12 CFR 1024.35 in their entirety.

So in this case neither the borrower Jennifer Sandoval nor her attorney read or heeded the mortgage security instrument section 20.  And even if they had, Sandoval did not allege in her complaint against Suntrust that she had sent the notice of grievance and given opportunity to cure in compliance with RESPA.  And now not only has she lost in federal court, but also she will have to pay Suntrust's (and her own) legal fees.

Mortgage Attack hopes other borrowers learn from Sandoval's mistake.

READ YOUR CONTRACT!

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Bob Hurt
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Thursday, March 09, 2017

History Vindicates The Bell Curve - portent for the USA

Herrnstein and Murray predicted in their seminal 1994 book The Bell Curve, Intelligence and Class Structure in American Life that US society would evolve with little change in IQ differentials between Orientals (Asians), Caucasians (Whites), Chicanos (Hispanics), and Negroes (Blacks). And that has happened as they predicted, except that Asians have widened their gap from Whites.  That means you should read this book (click the above link for the pdf), and HEED its soundly mathematics-based lessons. 

As my favorite biodiversity pundit Steve Sailer pointed out 3 years ago, America has evolved toward a CASTE society, in keeping with The Bell Curve's predictions, such that the more cognitive elite merged with the affluent (small wonder) and became ever more isolated from the cognitively disadvantaged (no surprise) who have ever less likelihood of escaping the mire of their condition.  That might explain the relative inescapable, self-fulfilling sludge of ghetto and thug life in America's inner cities and newly spawned ghetto suburbs and exurbs.  And of course, there is NO WAY the powerful will yield their power to the utterly undeserving, cognitively inept masses.  As I have repeatedly pointed out, fully 25% of the US population has IQ below 85 and are too stupid to graduate from high school, while another 15% is almost as irresponsible, owing to terrible parenting, low IQ, and low ambition to achieve in a lawful enterprise.  Unlike the problem of low ambition and bad parenting, from which one can with effort escape through personal striving, no amount of striving will relieve a person of the affliction of innate stupidity.

In other words, All Men Are NOT Created Equal.

So, what do you expect an enlightened society in an advancing civilization to do about the population's burgeoning ranks of stupid and irresponsible underachievers?

I have said that eventually, the elite must confess the condition of the stupid as interminable, proliferating, and deadly to civilization, and ACT intelligently and benignly to correct it.  That means, in a nutshell, government must ultimately enact eugenics laws to outlaw procreation of stupid children (as a crime against humanity) and prevent unmarried people from procreating at all.  Why?  Because it goes without saying (and yet I'll say it anyway) that insufficient parenting equals bad parenting and single parents gravitate toward poverty which means their children get insufficient education in how to become an upstanding, responsible adult because the single parent constitutes such a bad example simply by having no spouse to share in the child rearing experience.  And in most cases, the single parent bears a serious grudge against the would-be spouse, and typically denigrates the opposite sex to the child in such a way as to poison the child's thinking about loyalty of spouses and parents to one another.  And NOTHING, absolutely nothing adversely influences a child more than the disloyalties of his adult associates.

Race statistician Richard Lynn revealed in his  book The Global Bell Curve - Race IQ and Inequality Worldwide (2008) that The Bell Curve's analysis and prediction applied worldwide, not just in the USA.  The bottom line:  people are created UNEQUAL, especially in intelligence, some being vastly superior to others.

One obvious fact should seem apparent without saying - that intelligence, as measurable by standardized IQ tests, is the primary, NUMBER ONE, factor of importance in individual socioeconomic achievement and in building an advanced civilization.  As much as proponents of Black Lives Matter, La Raza, and other race promoting groups hate to admit it, the USA exists because smart WHITE propertied men made it so.  They crafted the founding documents and organic laws of the nation, and met as state delegates to endorse the Declaration of Independence and Constitution after lengthy heated debates of the merits of nearly every single provision.

The founders and American leaders who followed in their steps acknowledged the contributions of white men to fulfillment of the American dream of what I call "Liberty for Responsible People."  Beginning in the 19th century, "Manifest Destiny" became the rallying cry for the US expansion to the west coast of the continent, an land acquisition effort that including the conquest or land purchase against England and Spain and Seminoles in Florida, France and England in Louisiana, Mexico in Texas, and Mexico in New Mexico, Arizona, and California, much other land north of those areas, against Britain in Oregon and Washington and other northern states, and against Britain in Hawaii and Russia in Alaska. 

What is Manifest Destiny?  It is the  doctrine or belief that the expansion of the US throughout the American continents was both justified and inevitable, and it definitely challenges the notion that all men are created equal. Although ideally people in non-US areas should petition for statehood, foreign adversaries learned that they must either sell their claims to the USA or Americans, meaning the white race,  would take it by conquest because it was their manifest destiny to have the land from coast to coast.  Wikipedia says this about it:

------ Manifest Destiny -----

This was a controversial proposition for two reasons. First, idealistic advocates of manifest destiny like John L. O'Sullivan had always maintained that the laws of the United States should not be imposed on people against their will. The annexation of "All Mexico" would be a violation of this principle. And secondly, the annexation of Mexico was controversial because it would mean extending U.S. citizenship to millions of Mexicans. Senator John C. Calhoun of South Carolina, who had approved of the annexation of Texas, was opposed to the annexation of Mexico, as well as the "mission" aspect of manifest destiny, for racial reasons.[53] He made these views clear in a speech to Congress on January 4, 1848:

We have never dreamt of incorporating into our Union any but the Caucasian race—the free white race. To incorporate Mexico, would be the very first instance of the kind, of incorporating an Indian race; for more than half of the Mexicans are Indians, and the other is composed chiefly of mixed tribes. I protest against such a union as that! Ours, sir, is the Government of a white race.... We are anxious to force free government on all; and I see that it has been urged ... that it is the mission of this country to spread civil and religious liberty over all the world, and especially over this continent. It is a great mistake.[54]

This debate brought to the forefront one of the contradictions of manifest destiny: on the one hand, while identitarian ideas inherent in manifest destiny suggested that Mexicans, as non-whites, would present a threat to white racial integrity and thus were not qualified to become Americans, the "mission" component of manifest destiny suggested that Mexicans would be improved (or "regenerated", as it was then described) by bringing them into American democracy. Identitarianism was used to promote manifest destiny, but, as in the case of Calhoun and the resistance to the "All Mexico" movement, identitarianism was also used to oppose manifest destiny.[55]Conversely, proponents of annexation of "All Mexico" regarded it as an anti-slavery measure.[56]


The controversy was eventually ended by the Mexican Cession, which added the territories of Alta California and Nuevo MΓ©xico to the United States, both more sparsely populated than the rest of Mexico. Like the All Oregon movement, the All Mexico movement quickly abated.

------------

Now, 170 years later, we know that a deluge of Mexicans and others from  IberoAmerica, the West Indies, Africa, and Muslim lands have brought people into the land, and ultimately the electorate, millions of non-whites who do not share the religious or cultural ideals of US whites, and to a large extent resent whites just for existing and being generally superior to and more highly productive than them. As La Griffe du Lion pointed out in his article Cognitive Decline, the Irreducible Legacy of Open Borders (2005), it is civilizationally suicidal to allow hordes of stupid people to immigrate. As the population becomes ever less white (whites no longer are the majority race of children born in the USA), it becomes ever less responsible because of lower intelligence of the bulk of those non-whites in the population, and because of their 3rd world, truly alien, cultural values.  Thus, the non-whites definitely constitute a threat to American civilization.

The big question:  what will the great white hope, President Donald J. Trump, do about it?  Will he show the leadership needed to block immigration of Muslims and dangerous or low-productivity people, and curtail the expansion and suffrage of the low-IQ population?  Or will he stand by and watch the expansion continue apace until the stupid and irresponsible swamp the will of a significantly more intelligent minority at the polls?

And here's another pesky question.  Does the USA still have the same "manifest destiny" it had in the 19th and 20th centuries to take other lands by purchase or conquest?  The nation has had plenty of chance to snatch and keep the Philippines, Cuba, Korea, Vietnam, Afghanistan, Iraq, Kuwait, Germany, Italy, and Japan in the past century as the spoils of war.  That's a lot of people to force to make English their native tongue.  Maybe our nation's leaders learned a hard lesson from France and Italy, now swamped with non-whites from their former African colonies, and from our own travails as a consequence of permitting entry into the land of slaves from Africa and the West Indies.

It should come as no surprise that the average IQ of gene groups (such as in racial groups) correlates very highly with the value of productivity of the group.  Richard Lynn and Tatu Vanhanen analyzed national IQ scores in contrast to Gross Domestic Product and found very high correlations except when the style of government (such as the Communist government of China) interfered with productivity value.  See their paper Intelligence and the Wealth and Poverty of Nations.

Also see Lynn and Vanhanen's  IQ and the Wealth of Nations (2002) and IQ and Global Inequality (2006), and Richard Lynn's Race Differences in Intelligence (2015).

I also recommend the analytical articles by La Griffe du Lion: The Smart Fraction Theory of IQ and the Wealth of Nations (2002) and Smart Fraction Theory II: Why Asians Lag (2004).  These works by Lynn, Vanhanen, and duLion have angered politically correct liberal elitists who feel loathe to admit that average IQ markedly differs between nations or racial groups, and that even if they differ, they are not genetic in nature, and even if they are genetic in nature, they don't show one group as superior or inferior to another.  They'd prefer that we all just shut up about the subject and pretend it doesn't exist so they can impose a guilt trip on anyone who claims one racial group or nation is superior to any other for purposes of building an advanced civilization.  Too bad for them.  Attention MUST BE PAID to these very important issues because of the demonstrably high correlation between intelligence and value to civilization in terms of productivity, value of productivity, and ability to provide for one's family, community, and nation.  I personally believe American civilization's survival and advancement depend on these important principles.

The issue here has nothing to do with the skin color of Americans.  It has everything to do with the average intelligence of racial groups, and the necessary measures for elevating that intelligence so as to enable the groups to have a higher value of productivity and greater worth overall to society and to the American Civilization.  Skin color just happens to constitute a marker of average intelligence of the racial or gene group.  Regardless of race, all Americans should aspire to elevate the quality and capability of their own gene group so as to maximize its value to the advancement of civilization AND to give its members a decent standard of living. 

It should come as no surprise that the average IQ of gene groups (such as in racial groups) correlates very highly with the value of productivity of the group.  Richard Lynn and Tatu Vanhanen analyzed national IQ scores in contrast to Gross Domestic Product and found very high correlations except when the style of government (such as the Communist government of China) interfered with productivity value.  See their paper Intelligence and the Wealth and Poverty of Nations.

Also see Lynn and Vanhanen's  IQ and the Wealth of Nations (2002), IQ and Global Inequality (2006), and Richard Lynn's Race Differences in Intelligence (2015).

I also recommend the analytical articles by La Griffe du Lion: The Smart Fraction Theory of IQ and the Wealth of Nations (2002) and Smart Fraction Theory II: Why Asians Lag (2004).  These works by Lynn, Vanhanen, and duLion have angered politically correct liberal elitists who feel loathe to admit that average IQ markedly differs between nations or racial groups, and that even if they differ, they are not genetic in nature, and even if they are genetic in nature, they don't show one group as superior or inferior to another.  They'd prefer that we all just shut up about the subject and pretend it doesn't exist so they can impose a guilt trip on anyone who claims one racial group or nation is superior to any other for purposes of building an advanced civilization.  Too bad for them.  Attention MUST BE PAID to these very important issues because of the demonstrably high correlation between intelligence and value to civilization in terms of productivity, value of productivity, and ability to provide for one's family, community, and nation.  I personally believe American civilization's survival and advancement depend on these important principles.

When it comes to elevating the quality of the gene pool, such elevation can only happen through slaughter of inferior gene groups or widespread benign eugenics programs.  I prefer the latter, but history has a bounty of examples of the former when gene group leaders failed to do the latter.  The time has come for national dialogue on this very important subject of eugenics and how to implement it across the land while it is still possible.

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Bob Hurt
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