The controversial company, MERS, continues to face critical review across the nation.  The Supreme Court of Washington, in particular, recently ruled against MERS in the arena of non-judicial foreclosures.  The Court succinctly stated that, “if MERS does not hold the note, it is not a lawful beneficiary.(

This is so because Washington law defines the “beneficiary” as “the holder of the instrument or document evidencing the obligations secured by the deed of trust.” See RCW 61.24.005(2).  Unfortunately, the Court could not go further to decide what the implications were of such a finding in the case at hand.

Similarly, the Supreme Court in Oregon recently accepted several certified questions regarding MERS, which may further clarify MERS’ role.  The certified questions include: (1) whether MERS may act as a beneficiary; and (2) whether MERS may retain and transfer legal title to a trust deed as nominee for the lender, after a note secured by the trust deed is transferred from the lender to a successor(s) or series.  Additionally, the Court will address the transfer of promissory notes and deeds of trusts.   See



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Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topics

Click here to listen to the Legal Hour on KDWN AM720 from August 15th, 2012 in which Managing Partner, Tisha Black Chernine, Esq., hosts special guest Danial H. Stewart, an election law attorney practicing at Koch and Scow, LLC.  Mrs. Black Chernine and Mr. Stewart discuss how election law affects campaign financing and strategy (4:45)(34:36), how Nevada affects national elections (6:40), a Nevada laws regarding term limits (10:30), should county employees supervising a polling site (13:50), voter ID law (17:25),  how Ohio’s redistricting will affect elections (23:00), the investigation into the Fast and Furious gun running sting operations (27:00), how to protect assets against an underwater property (29:50) and corporate contributions to political campaigns (38:17)

Please tune in to AM720 KDWN’s “Legal Hour,” every Wednesday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

Attorney at Law Feature

Be sure to pick up the latest edition of Attorney at Law Magazine featuring Tisha and the rest of the Black & LoBello team. In addition to an article feature by our very own Andras Babero, Esq.

Following recent discussions in Washington D.C. with U.S. Treasury Officials, the Ministry of Finance announces the formation of a new task force to evaluate the suitability of a government-to-government reporting arrangement for the implementation of the U.S. Foreign Account Tax Compliance Act (FATCA) in the Cayman Islands.  Click here to read the full article.

One of the most recent efforts to bring the big banks to task over their role in the nation’s real estate crisis is a New York lawsuit, Abel v. BAC Home Loans Servicing LP et al, alleging international money laundering by Bank of America as well as other major federally chartered banks.  The lawsuit alleges that Bank of America, JP Morgan Chase, Citibank, Citigroup, 1 West and Wells Fargo have been moving trillions of dollars into offshore accounts without properly disclosing those transactions on their balance sheets.

When a property forecloses and sells in a Trustee sale, the servicer of the loan takes its fees for servicing the foreclosure as well as other fees.  The remaining funds from the sale are supposed to go to the new owner of the loan.  Finally, the old debt is supposed to be discharged.  However, the big banks are being accused of diverting that remaining money into off-shore accounts which earn interest.  Meanwhile, they are NOT crediting the previous loan and discharging the debt.

In their defense, the banks claim that since they don’t know who the new investors are, they can’t pay them the money while conveniently earning interest off those investments.  Ironically, that same argument has been used by struggling homeowners who want to mediate their loans to avoid foreclosure.  In typical fashion, where the homeowner suffers, the banks profit.

Transferring money to offshore accounts is not illegal if done correctly.  However, by not fully disclosing the transfers and failing to discharge the old debts, the banks may be in violation of money laundering statutes and the Patriot Act.

This case brings to the forefront yet another aspect of how sloppy paperwork and accounting has been a standard business practice of the big banks.

Tisha Black Chernine, Esq.

Prior to March 8, 2012, an exemption to the State Business License was provided to certain types of home-based businesses.  As such, those businesses that were “home-based” and earned less than a certain amount of yearly income did not have to file for the state business license or pay the annual fee of $200.

However, effective March 8, 2012, the Legislative Subcommittee to Review Regulations approved the measure that Secretary of State Ross Miller said was necessary after the Secretary of State took over collecting the $200 state business fee in 2009 from the Department of Taxation.

Mr. Miller estimated 60,000 entities claim to be home-based businesses and that the state is losing about $10 million annually.

Now, all entities formed in Nevada must pay the $200 annual fee for the state business license despite the fact that their company may have been formed not to operate a business but, for example, as a holding company or to own a rental property.

The regulation limits the home-based business exemption to “natural persons” who sign a statement that they earn less than the threshold income, i.e. sole proprietorships or general partnerships who meet the exemption requirements and other entities which do not afford asset protection to the owner.

Entities claiming a home-based business exemption on their annual list filing after March 8, 2012 will be returned to the customer for correction and to apply for the state business license.

A copy of the approved regulation can be found under the “Announcements” section of the Secretary of State’s website.

Tiffany N. Ballenger, Esq.

Freddie Mac CEO Charles “Ed” Haldeman gave a strong signal Friday that new incentives from the Treasury Department may be enough to start principal reduction on mortgages backed by the government-sponsored enterprises.

To read the full article, click here.

The Nevada Journal interviewed Tisha Black about the detailed settlement documents that the Obama administration and 49 state attorneys general filed with the U.S. District Court in Washington, D.C., last week.

To read the full article, click here.

Black & LoBello on AM720 KDWN

Tune in as Black & LoBello offers free legal advice on a wide range of topicsClick here to listen to the Legal Hour on KDWN AM720 from February 1st, 2012 in which Managing Partner, Tisha Black Chernine, Esq., hosts special guest Mark Stark, CEO and Owner Broker of Prudential Americana Group of Realtors. Ms. Chernine and Mr. Stark discuss the good and bad aspects of the real estate market  in 2011 (3:10), how AB 284 affects the available real estate inventory (7:42), how to find a real estate agent with experience in short sales (12:25), real estate debt obligations in a marriage (22:05), the current state of the real estate industry (24:16), the likelihood of banks to sue for a deficiency (32:54), the areas of the Vegas valley hardest hit by the housing crisis and the benefits of buying a property in the current economy (37:50).

Please tune in to AM720 KDWN’s “Legal Hour,” everyday, from 9 AM to 10 AM.  Listen live on the radio or online.   Feel free to call in with your comments or questions at 702-257-5396.

To listen to past shows, visit our Media page.

So where does the Multi-State Settlement (“MSS”) leave Nevadans? Essentially, in a slightly better position IF, and only IF, we manage our expectations, pay attention and do our homework. If we do these things we may be able to collect all the money allocated to us, pursue the “banksters” criminally and pursue our individual remedies under state and Federal laws.  To begin you must do the following:

Determine who owned/owns the Note.

It is expected to take somewhere between 60 and 90 days to set up the MSS infrastructure and to commence delivery of the forms associated with the “opt-in” portion of the program. During that time, borrowers who were foreclosed upon, still making payments or are still in default should take measures to determine who owned, claims to own or currently owns their note. They can do this by searching the Fannie Mae and Freddie Mac websites, sending out a Truth-in-Lending letter and contacting the servicer related to their loan. There is generally a service number located on all mortgage invoices. Nevada is not a “show me the note” state. We do require that claimant lenders can produce proof of the right to collect on the Note. However, they are NOT required to produce the actual note. A certified copy thereof will do. Accordingly, you will want to look at who is making those certifications. Check the endorsements on the note, to whom the note is endorsed (this is a technical bearer/order distinction that may be important to a lawyer) and the manner in which the note was endorsed - on the note itself or by a separate paper. All of these things matter and may be changed or altered by the Bank or other party at a later date. Gathering them NOW is important and prudent.

Determine who owned/owns the Deed of Trust.

In addition to researching the note the borrower should determine who is or has foreclosed upon (all that apply) their Deed of Trust. In a series of opinions regarding mediation and transfer of beneficial interest in Notes and Deeds of Trust the Nevada Supreme Court has given very clear instructions on how and what constitutes a proper transfer of the Deed of Trust. Therefore, Borrowers should endeavor to ensure that any claimed creditor pursuing them under a Deed of Trust has the proper documentation to support its claims. Borrowers can research this information by sending a TILA letter, researching their MERS MIN number or looking through public notices and recorded documents. Deeds of Trust should be transferred by assignment. The date of the transfer in relation to other occurrences such as the commencement of the foreclosure process and filings by trustees can have a big impact on whether or not the foreclosure was done properly and by the proper party.

Review the County Recorder’s page and your title chain.

Nevadans should also review the Recorder’s page on their past, present and future properties. Oftentimes, you can collect information regarding transfers, find robo-signers, false dates, false names and botched documents in the public record. Singularly and in the aggregate, these types of facts can add up to leverage in a short sale, decrease in a deficiency or a lawsuit under various Federal and state laws. Moreover, look at the trustee’s deeds to determine if the property has been foreclosed upon. Make sure the listed beneficiary matches those in the chain.   Notably, a recent Massachusetts Supreme Court denied a quiet title claim of a purchaser at a botched foreclosure. Examining these records closely when seeking to purchase a property may avoid title issues in the future.

Review your mortgage statements, credit reports and other records.

There are many Federal and state protections for borrowers who have been subjected to misapplied mortgage payments, false credit reports, force placed insurance, doubled fees (such as BPO charges or “site inspections”) and bogus charges. Look at your statements as suspect. Even small accounting errors can garner decent statutory fines in your favor. You can order an accounting of these things by sending a Qualified Written Request to your lender or servicer. You are also required to have received notice ANYTIME your mortgage was transferred. This notice is to have been provided within 30 days of the transfer.  You may have a fine waiting for you to collect if you did NOT get it, like many other little known statutes.

Read, read, read!

The big secret is that people, including banks, do not read their documents. Before you sign, look for waivers and releases in EVERYTHING and understand what they mean even if you have to see an attorney. Read the small print, large print, things in boxes and regular paragraphs. Determine who the parties are and the obligations of each. Think of the worst case scenario and make sure the document addresses what would happen in that event. Look for the small charges that will be taken from you such as processing charges, documentation charges, copy costs, interest for no reason, penalties that are not penalties, pencil sharpening, etc. and know when they will be allocated. You are your own watch dog. If it looks strange, sounds funny or gives you a “gut-check,” look into it. If you are not certain, find COMPETENT people to assist you based on sound in-person referrals, not a suggestion from a stranger, the internet or a flashing advertisement.

Be diligent.

Pay attention regardless of whether you paid your mortgage. Research the MSS, opt-in if you qualify, know who your lender is and the programs they offer. Investigate your property, examine your title and know your rights. If someone or some company owes you a deadline, make sure you remind them the DAY it is late. Be timely yourself. Follow the directions and keep copies of everything, including whom you talked to, when and if they called you or you called them. This is, in large part, a game of attrition. Know what to expect and ensure that the people you rely on professionally and politically act and vote appropriately.

Finally, manage your expectations.

Steel yourself to the fact that you must make an effort. There are no silver bullets. This is not an era where one can rely on others for good advice, clear direction or protection. Above all else, hold on because this ride is nowhere near over and the rules to this game seem to change every day.

Tisha Black Chernine, Esq.

The big “winners” in the Multi-State Settlement (“MSS”) are Florida and California who have exacted approximately half of all MSS monies between them. Regardless of these two goliath states, Nevada captured a decent amount. On any given day, Nevada ranks number one for bankruptcy filings and percentage of unemployed individuals.  Furthermore, for the last five years Nevada, prior to passing AB284, has ranked number one for foreclosures.

Nevada is the clear devastation front-runner considering 1 in every 17 homeowners are at some stage of delinquency. Moreover, a full one-half of all residential housing stock is considered underwater and one-third of that is at or above 175% LTV. Nevada is said to have conservatively lost more than $10 Billion in real estate value. In this regard, Nevada is clearly the dubious winner. Perhaps, in a perverted sense, we have “won” again with this settlement.

$25 Billion, to be sure, is a large sum. However, it represents approximately one QUARTER of annual profit for the five major lenders (“Banks”). In exchange, not only do the Banks move forward on a far sturdier footing in terms of looming and expensive litigation, they have also seen to it to give themselves, their affiliates and relations a tax credit for the “good deeds” of refinance, principal write downs, cash for keys, etc. Moreover, they are getting these credits for writing down loans which they don’t own any interest in at all. Therefore, the actual stake-holders in those investments will probably be as kindly victimized by the Banks as the main street borrowers.

Why are we not only bailing Banks out but giving them tax breaks to run their business the way THEY SHOULD BE RUN? Why are we giving Banks and their servicers credit for potentially ruining the investments of others? Why do we continue to repeat the same mistakes and hope for different outcomes? These are questions only a silver-tongued politician or banker can answer. Certainly, they will manage to craft an answer, call a photo-shoot and make a speech while the rest of us continue to work, dutifully pay taxes and lose faith in our system.

Thankfully, the private sector has filed a number of law suits on behalf of and against some marquis real estate and finance players such as AIG, Black Rock and the SEC who sued untouchables such as Goldman Sachs, Bank of America and Wells Fargo. Nevada too has had enough and was one of only a handful of states that filed suits against the Banks and the ONLY state that has filed criminal charges until just recently with the state of Missouri filing a criminal action against a foreclosure document processing company in February of 2012.

Of the many issues that dog the litigation process (besides expense, time, and complexity) is the fact that states are dealing with moving targets. The speed with which the Banks buy, sell, merge, re-brand, dissolve entities, hire employees, change management and terminate employees is matched only by the speed with which banks bought, sold, manufactured and manipulated documentation in the last decade. These amoeba-like companies and their guerilla litigation tactics are no recipe for a swift resolution to Nevada’s immediate needs.

In contemplation of this slow bleed, Nevada settled its lawsuit with Bank of America and chose immediate funds and a promise to refinance or reduce borrowers’ principal. As a result, Nevada added more than $200 Million dollars to its settlement coffers. Again, this money is in addition to the $1.3 Billion marked as the amount headed to, or to be granted to, the citizens of the state of Nevada for criminal activities of the Banks.

In exchange for the MSS, Nevada and other participant states have agreed NOT to pursue the released parties from any CIVIL state action. However, that is not and should not be considered the end of the battle. Keep in mind that the states now armed with funds are still able to proceed criminally against the Banks and culpable parties. There is no reason to assume that Nevada will continue in this vein since we already have foreclosure-related civil and criminal suits pending. More important still is the fact that individual borrowers can collect their distribution AND pursue their state and federal claims unfettered by the MSS.

While I do agree that the MSS is working in the right direction it is not THE answer and it is so remarkably unbalanced that it is hard to digest. In reality, the Banks are not paying the touted $26 Billion but $5 Billion. The credits they will receive add up to nearly $20 Billion for principal reductions and refinancing. When this amount is divided amongst those foreclosed upon between September 2008 and December 2011, that leaves approximately $900 to $1,900 per loan depending on the number of persons opting in. There you have it folks! The price of high finance and crime in America is less than $2,000 per loan.

The $5 Billion in hard money that is said to be distributed amongst the states may be used as, when and how each state directs. Ironically, I am placing bets that these funds will be deposited into Bank of America accounts by the majority of recipient states leaving the Banks to gain still more benefit from  the MSS.

As to the remaining $25 Billion, much of this allocation is to be used toward write-downs, refinancing, deficiency releases, cash for keys and other credit oriented “contributions” which will be distributed by the Banks and the MSS on a first come, first serve basis so it will be important for Nevadans to get in quickly lest other states take the loot.

The breakdown of Nevada’s take is as follows:

  1. From the MSS:
  • Nevada will receive $60 Million in funds from the MSS. The state may do what it likes with these funds. I would expect that the state will either set up programs to assist Nevadans with participation in the MSS, direct funds towards legal aid, and, hopefully, use a good portion of the money to fund the criminal pursuit of individuals involved in bad acts concerning real estate finance, servicing, and foreclosures.
  • Nevadans will be allocated $40 Million in payout to those borrowers who are deemed to be proper recipients. In order to be a “proper recipient,” your loan must have been in the portfolio of one of the participating banks. That is to say, it should not have been merely serviced by one of those banks or their affiliates. Borrowers whose loans were foreclosed upon and were owned by a GES, private trusts, or publicly traded securitized trust DO NOT QUALIFY for this payment. Moreover, the payment will only be delivered after the participant opts in. The payment will be based on a sliding scale from $900-$2,000 per wrongfully foreclosed upon borrower. Regardless of the participation, or the amount of the payment, the INDIVIDUAL BORROWER MAY STILL PURSUE ANY PRIVATE CLAIM HE OR SHE HAS RELATING THE LOAN OR FORELCOSURE.
  • Although $1.2 Billion dollars has been allocated to Nevada, depending on the rush from other states, Nevada may not get that much money. Moreover, there is no right accounting that will ensure what amount we will receive at the end of the MSS distribution.  These monies will be used toward principal reductions, refinancing, deficiency releases and cash for keys. Determining who is a qualified participant in this “menu of services,” is difficult. While one can assume that the participating banks have the authority to write down and forgive deficiencies in their own portfolios, it is hard to determine what, if any, authority a bank, or its servicer arm has to do this for a loan which the bank does not own. Indeed, the claim that banks do not have such authority (along with the moral hazard issue – as if the whole system is not rife with it) has been the main excuse for the banks not doing so to date.
  1. From the Bank of America Settlement:
  • Included in the MSS, Nevada will get a guaranteed $750 Million in principal reductions and deficiency releases from Bank of America. This money too is relegated to the bank’s control.
  • Nevada will also receive another $30 Million to use as it wishes (much like the MSS $60 Million mentioned above).
  • Finally, there were modest amounts directed towards remuneration for odds and ends associated with the Bank of America lawsuit that Nevada will receive.
  • Nevada Attorney General Catherine Cortez Masto shall receive a seat on the enforcement committee of the MSS.

Tisha Black Chernine, Esq.

Wall Street knew all of the mortgages were bad when they created or bought and sold them. Furthermore, they knew the warranties of quality they made regarding the caliber of the loans, whether to the certificate purchasers of the Residential Mortgage Backed Securities (“RMBS”) pools or the Government Sponsored Entities (“GSE”), were meaningless when they made them. It did not take hindsight to determine that those pools should not have been rated “AAA.”

Fannie Mae and Freddie Mac knew that the related documentation and the serving records were problematic for over a decade.  The Federal Government has also known of the problems as evidenced by consent orders signed over a year ago by 14 of the major servicers. They promised then to do what should have been done all along: abide by laws and sound business practices.

Congress knows. The Senators know. The Attorneys General are aware. Countless committees, reports, investigations and press releases cite the blasphemous practices and unconscionable conduct of the industries related to real estate and its financing. Each have blustered “something must be done,” “what an outrage,” “vote for me, I will change all of this.”

Borrowers also knew it was too good to be true.  Even if they did not have to produce documents to support stated income on mortgage applications, they knew that the applications were often falsified by originators who would never have any “skin in the game” of the debt roulette they were playing.

Is there anyone left who can claim ignorance that our mortgage market from start to foreclosure is rife with fraud, felons, misfits and idiots? Ironically, everyone claims it is someone else’s fault and that some other party should suffer the finger-pointing and scaffold. Poppykosh!

This dreadlock of mortgage morass, main street malaise and political uselessness has been twisting up for decades. The notion that it can be undone with the stroke of a pen is just that, a notion. You cannot be fit without discipline. You cannot cure lethargy without energy and you cannot fix systemic corruption and the real estate market with the Multi-State Settlement.

The Multi-State Settlement (“MSS”) involves every state, save and except Oklahoma.  The MSS was entered into by the participating states and the following five major lenders (“Banks”):

  1. Bank of America $11.82 Billion (who holds the Countrywide loans that were not sold);
  2. Wells Fargo $5.35 Billion;
  3. Ally Financial $310 Million (formerly GMAC);
  4. JP Morgan Chase $5.29 Billion; and
  5. CitiCorp $2.2 Billion.

However, the Banks are not the only beneficiaries of the MSS for there is a release that includes their subsidiaries, affiliates and related entities, regardless of whether the subsidiaries to these companies are past, present or (presumably) acquired in the future.  The net is cast quite far and wide in terms of Bank releases. The activities covered are similarly endless. However, they are listed as the acts or failures that relate to origination, servicing and foreclosure; the entire mortgage process.

Who, besides Banks and offending entities, were eager to see the settlement executed? None other than the Department of Justice (whom we pay to peruse and convict criminals, not settle with them); the Federal Reserve Board; the Conference of State Bank Supervisors; the Federal Housing Finance Authority (Freddie and Fannie Regulator); and the HUD. Many of these players have filed, pursued or exacted their own settlements with the Banks.

It is also interesting to note which states’ Attorneys General and federal actors were involved in the committee that put the proposed settlement together. It shall be interesting as well to watch these individuals get federal or other coveted appointments in the future.

  1. Pam Bondi, Florida Attorney General
  2. Tom Miller, Iowa Attorney General
  3. Eric Holder, U.S. Attorney General
  4. Sean Donovan, U.S. Secretary of Housing & Urban Development
  5. Lisa Madigan, Illinois Attorney General

It will also be these “civic-minded” individuals that lead the MSS complaint/compliance committee. You should be asking yourself now whether these individuals are the best suited for the continued oversight and enforcement of this program as they were the very soft-heeled ones to come up with it.

Despite being cash-strapped and eager to receive an infusion of capital to cover budget shortfalls (like many other states in the Union) the following states were hold-out states, true hold-out states. They actually worked out a more advantageous deal for their constituents.

  1. Arizona
  2. California
  3. Delaware
  4. Massachusetts
  5. New York
  6. Nevada
  7. Oklahoma (never signed on to MSS, but took the hard money and not the opportunity for write-downs).

The states’ Attorneys General were forced to choke down the MSS much like a goose making pate for bankers. Thankfully, Nevada managed to secure a better settlement than most, and so we should have, as we are the hardest hit state.

Tisha Black Chernine, Esq.

Tisha Black Chernine on Face to Face

Tisha Black Chernine, Esq., was interviewed by Jon Ralston on “Face to Face” and discussed the problems with the new Multi-State Settlement with the big banks.  Click here to watch the episode.

Federal Government Set-Aside Program Vlog parts 1 and 2

Carlos L. McDade, Esq., discusses Federal Set-Aside Program Veteran Owned Small Business, a new program that encourages competition for government contracts by giving incentives to smaller businesses.

Due to the large file sizes, we are unable to post them here.  Please view these video files by clicking on the links below.

Federal Government Set-Aside Program: 1 of 5

Federal Government Set-Aside Program: 2 of 5

SB 414 Restricts Banks

Senate Bill No. 414 was introduced to address some of the consequences of the downturn in the current real estate market. Section 2 of the Bill was intended to prevent a bank from calling a commercial mortgage loan due if the borrower is not in default.  That section was quickly eliminated by amendment from the final bill.

SB 414 mandates lenders respond to short sale requests within a reasonable period of time.  A “reasonable period of time” is defined to mean a response within 90 days after receipt of the offer, unless the parties agree to a written extension of time.

Section 3 was the gravamen of SB 414.  It prohibits a lender from unreasonably delaying a response to an offer for a residential short sale. It further prevents lenders from obtaining a deficiency judgment against a borrower in certain instances.

The Nevada Senate Committee on Commerce, Labor and Energy (the “Committee”) (where the bill originated) was concerned about lenders pursuing deficiency judgments against residential borrowers after they had completed a short sale.  Senator Schneider,  said the following:

“I was concerned about people who are upside down in the mortgages on their homes, cannot make payments anymore, for whatever reason, and they short sell their home. I do not want banks going after the seller for the difference between what the house sold for and the mortgage.”

The Committee sought to remedy this issue by prohibiting lenders from further pursuing the borrower after the short sale has been concluded, if all the parties agreed.

William Uffelman, President and CEO of the Nevada Bankers Association (the “NBA”), testifying on behalf of the lenders, sought to balance the lenders’ very real concern of potentially having to write down or write off loans to satisfy the FDIC, the Office of the Comptroller of the Currency, or U.S Department of the Treasury, with individuals being forced into bankruptcy or foreclosure while trying to protect their homes.

Typically, lenders that hold first deeds of trust are more willing to forego a deficiency, whereas second deeds of trust holders are less likely to do so. Short sales are often held up because second trust deed holders are more intransigent. Lenders also will seek to take a strategic advantage by delaying responding to the borrower’s overtures for a short sale. SB 414 addressed both issues.

The NBA’s Mr. Uffelman conceded that financial institutions could retain the right to a deficiency judgment right if they responded within a reasonable period of time, and they reserved the right to a deficiency judgment in the short sale agreement executed by all the parties. This allows a lender to pursue a borrower for a deficiency judgment when the borrower makes a “strategic default,” yet it gives most borrowers finality.

As Senator Schneider so eloquently stated, “the concept here is that for all our constituents who are doing short sales, we do not want to leave them hanging there and later have the big bank looking to squeeze more blood out of them.”

Historically, the forgiven or waived portion of a debt is subject to tax as income when all or a portion of a debt has been forgiven by a lender. However, Congress enacted a law in 2007, which does not subject debt forgiveness to tax when the forgiven debt is due to foreclosure. SB 414’s deficiency judgment waiver rules prohibit any debt forgiveness liability under any IRS tax rule changes that may take place after December 31, 2012.

The Committee believed it was not enough for the borrower to depend on a statement of the lenders’ intent to waive a deficiency judgment. The Committee wanted to have all parties state their intentions regarding a waiver of a deficiency judgment in clear and unambiguous language. Thus, SB 414 will require a written, conspicuous statement, acknowledged by the debtor or grantor which states that the lender has waived its right to recover a deficiency and the amount of recovery that is being waived.

SB 414 was approved by Governor Sandoval on June 13, 2011.

Andras F. Babero, Esq.

Today, various news outlets have reported the Federal Trade Commission is issuing refund checks to homeowners that were overcharged by Countrywide Home Loans, Inc.  These checks are a product of the FTC’s hefty settlement with Countrywide, which was made June of last year, after the FTC’s investigation uncovered severe inaccuracies in the Countrywide billings to its clients.  These offenses (“Junk Fees”) include unreasonably marking up default-related fees such as inspections, maintenance services, title searches, and foreclosure trustee services, as well as falsifying charges during borrowers’ Chapter 13 bankruptcy proceedings.  The checks amount to nearly $108 million, but this could be just the tip of the iceberg, so to speak.

FTC Chairman Jon Liebowitz recently remarked, “Countrywide’s unconscionable behavior harmed American consumers on a massive scale and we are proud to be getting every single dollar back to hundreds of thousands of struggling consumers who can least afford to lose the money.”   The refund checks are only a portion of the FTC’s commendable work.  That is, the settlement order also prohibits Countrywide, and Countrywide Home Loans Servicing LP’s successor BAC Home Loans Servicing, LP, from taking advantage of borrower’s in default and/or bankruptcy.

Tisha Black Chernine, Esq.

While there has been a lot of attention directed toward the issue of the hiring of illegal immigrants, recruiters and employment referral companies must also be careful to follow the laws regarding the hiring of citizens and  legal immigrants.  Whether they consider themselves to be large corporations or small businesses,  employers should be wary of the rules regarding employment of citizens, certain visa holders and “work authorized immigrants.”

The Immigration and Nationality Act § 274B, 8 U.S.C. § 1324b, is a federal statute that prohibits discrimination in hiring, firing, or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process (document abuse), and retaliation or intimidation.

Recruiting companies and companies that refer job applicants for a fee are also governed by the law.  Case in point - the Department of Justice recently settled a case it brought against the American Academy of Pediatrics (“APA”) in Illinois.  The APA limited job applicants to citizens and certain visa holders.  However, the Immigration and Nationality Act (INA) also prohibits recruiters or referrers for a fee from discriminating on the basis of citizenship status.  As work-authorized immigrants are allowed to work, prohibiting them from applying for jobs constituted discrimination against them and a violation of the INA.

Another example illustrates that employers may not discriminate against U.S. citizens either.  According to the Justice Department in its case against Iflowsoft LLC, a computer programming services provider in Iselin, New Jersey, Iflowsoft posted several job advertisements for IT professionals expressing a preference for temporary visa holders (specifically H-1B transfers and/or OPT candidates).   The facially discriminatory advertisements deterred the charging party, a U.S. citizen, from applying to Iflowsoft.  In addition, the Justice Department found that Iflowsoft hired an H1-B visa holder without considering a qualified U.S. citizen applicant.  The Immigration and Nationality Act (INA) generally prohibits employers from discriminating based on citizenship status during the hiring process and that protection also includes citizens.

Carlos L. McDade, Esq.


The information contained on this website is designed to enable you to learn more about the services that Black & LoBello offers to its clients. These materials do not, and are not intended to, constitute legal advice, nor are they intended as a source of advertising or solicitation. Your use of this website does not create or constitute an attorney-client relationship. You should not consider these materials to be an invitation for an attorney-client relationship. Further, you should not rely on the information provided on this website without first obtaining separate legal advice.

Tisha Black Chernine awarded for
Mountain States Rising Stars 2011

Michele T. LoBello awarded for 
Nevada Super Lawyers 2007

Black & LoBello is an AV® Preeminent rated, locally owned, full service law firm in Las Vegas, Nevada.