Webinar On Mortgage Forbearance for Landlords under the CARES Act

May 27th, 2020

Brian Huddleston, and Kristin Maun, Housing Coordinator for the City of Tulsa, presented an educational webinar on the mortgage forbearance and eviction moratorium provisions for landlords under the CARES Act. This webinar was recorded and we will post a link as soon as the video is available. The PowerPoint slides are here. It is helpful for landlords and property owners to learn more about mortgage relief and the eviction moratorium under the CARES Act. Including the secondary eviction moratorium applicable to those multi-family properties covered by a federally backed loan for which the borrower obtains a temporary mortgage forbearance after the general moratorium ends in late July.

https://www.newson6.com/story/5eccd0e029d2410c30484c72/webinar-on-eviction-moratorium-to-be-held-tuesday-

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Victory on Appeal! Beeler vs. BONY

May 17th, 2020

Huddleston Law Offices is pleased to announce that Brian Huddleston just won a successful appeal in a long fought real estate foreclosure case involving the application of 12 O.S.2011, § 2025 and 12 O.S.2011, § 2017. The Oklahoma Court of Civil Appeals issued an unpublished decision on May 12, 2020 reversing and remanding the case to the trial court in Tulsa County for further proceedings.  The opinion can be viewed here.

Case No. CJ-2005-1683 (yes, 2005!) began as an action for foreclosure of the Beeler home by The Bank of New York, Trust U/A dated 12/1/01 (EQCC Trust 2001-2). BONY was granted summary judgment that was reversed on appeal in 2013 due to BONY’s lack of standing to sue under the 2012 line of Oklahoma Supreme Court cases following Deutsche Bank Natl Trust V. Brumbaugh, 2012 OK 3, 270 P.3d 151. After the case was remanded, Huddleston argued that BONY’s petition should have been dismissed with leave granted to allow BONY to file an amended petition with the required properly endorsed note attached under the curative procedure established in HSBC Bank USA V. Lyon, 2012 OK 10, 276 P.3d 1002.

At BONY’s peril, the trial court did not require BONY to follow Lyon to cure the jurisdictional defect. Instead, BONY was allowed to substitute Nationscredit Financial Services Corporation as the plaintiff. Nationscredit in turn was allowed to substitute DLJ Mortgage Capital as the plaintiff (the latter two arguing in turn that they were the “holder” of the note and thereby entitled to substitution). DLJ filed and obtained summary judgment. On appeal for the second time, the COCA validated Huddleston’s argument that, because BONY never established its standing at the time it commenced the foreclosure case in 2005, it could not ignore the Lyon procedure and use 12 O.S.2011, § 2025 and 12 O.S.2011, § 2017 to substitute NationsCredit or DLJ as plaintiffs. That is to say, a plaintiff lacking standing to sue can’t cure that jurisdictional defect by simply substituting in a new plaintiff that arguably does have standing. Rather, the case must first be dismissed and refiled by the new plaintiff that must establish its own standing to sue.

The Beeler case stands for the proposition that, if a foreclosing plaintiff lacks standing to sue, the trial court also lacks jurisdictional power to grant any relief under 12 O.S.2011, § 2025 and 12 O.S.2011, § 2017 until the original petition is first dismissed and refiled by the original plaintiff with the properly endorsed note attached to the petition. Absent committing fraud upon the court, BONY could not do this after the first appeal in 2013, and cannot do it now after the second appeal, because BONY signed a special indorsement of the note to NationsCredit in 1998, and recorded an assignment of the mortgage and note to NationsCredit in 2007. After 15 years of fighting BONY, vindication was had with these words by the COCA in the Beeler opinion: “Bank was never the holder of the note.”

Brian Huddleston has achieved several appellate court victories since the foreclosure crisis began over a decade ago. While lenders usually win their cases on summary judgment, Huddleston defends borrowers with an extensive motion practice that many times provides the basis for the summary judgments to be critically reviewed and reversed on appeal. The lender’s legal arguments and evidentiary materials can be deficient in many ways. Often the errors are procedural and a technicality. Huddleston Law Offices is gratified to once again be found to be technically correct, which when it comes to appeals, is the best kind of correct.

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Office Hours Update

March 18th, 2020

Without exception legal services are essential to protect the rule of law and to help Oklahoma citizens and businesses in times of crisis. If you have legal issues and questions you can have a consultation and still not expose yourself to the virus. I can do consultations via video with anyone who has a smart phone, tablet or computer. I can send you paperwork via email to immediately begin working on your legal matter. If this is something you’d like to take advantage of, call me at 918-237-3857 or email me directly at brian@huddleston.law. Thank you, stay safe, and we will all get through this together!

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Street Law School: Getting A Criminal Record Expunged Is Getting Even Easier Than Before

November 14th, 2018

On April 26, 2018, Oklahoma Governor Mary Fallon signed into law SB 650, making felony offenders eligible for expungement (sealing) for the first time without requiring that they first be pardoned.  Effective November 1, 2018, a person may apply to the court for expungement of a single nonviolent felony conviction five years after completion of their sentence, if the person has not been convicted of any other felony or separate misdemeanor in the past seven years, and if no felony or misdemeanor charges are pending. Okla. Stat. Ann. § 18(A)(12).  This 2018 change to the law reduces the waiting period from ten years to five; deletes a requirement that the person have no prior felonies, or any separate misdemeanor in the past fifteen years; and omits a requirement that the person first be pardoned.  Oklahoma’s additional provisions for expungement of misdemeanor convictions, non-conviction records, and pardoned felonies may be further explained by any Oklahoma attorney that includes expungements as a part of their practice.

Links to the Oklahoma Statutes dealing with expungement of criminal records:

Convictions and arrest records (Section 18 Expungement)
Identity Theft (Section 19a Expungement)
Expungement of a Victim’s Protective Order (Section 60.18 Expungement)
Deferred or delayed sentences (Section 991(c) Expungement)
Expungement for Victims of Human Trafficking (Section 19c Expungement)
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Street Law Firm: Oklahoma is open for medical marijuana businesses. Now what?

July 13th, 2018

On July 26, application information and requirements for licenses will be available at omma.ok.gov. Applicants must be at least 25 years old, reside in Oklahoma, and must be registered to conduct business in the state as well as meet other licensing requirements. Entities can have ownership consisting of no more than 25% ownership by non-Oklahoma residents. The license application fee for growers, processors, and dispensaries will be $2,500.

To be prepared for state licensing you should:

  • Read through the Regulations and determine what business type you’d like to have.
  • Setup your Cannabis Company Formation since you need to be a registered business for licensing approval.
  • You’ll also need a Cannabis business plan for licensing.

OSDH will continue to provide the most up to date information as the program is fully implemented.

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Victory On Appeal (Again)

September 18th, 2017

I am pleased to announce that I have another recent appellate court victory. This time in an unreported case where, as is often the case, the trial court granted the bank’s motion for summary judgment for foreclosure against the homeowner, but the Oklahoma Court of Appeals reversed and remanded the case, finding that there exists a material issue of disputed fact as to whether HSBC was the holder of the promissory note at the time that it filed its amended petition. The opinion makes it clear that a motion for summary judgment in a foreclosure case must present undisputed facts supported by acceptable evidentiary materials  showing that the bank is a person entitled to enforce the note at the time that the petition is filed. The bank’s evidentiary materials were deficient because it had made inherently contradictory allegations in its pleadings and affidavit in support of its motion for summary judgment. Here is a link to the slip opinion: HSBC vs Williamson.

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Victory on Appeal in U.S. Bank National vs. Smith

August 31st, 2017

I am pleased to announce that I have another appellate court victory. This time in an unreported case where I was hired only after the homeowner had already had judgment granted against him by the trial court in 2007. That’s right. In 2017, 10 years after the default judgment, the Oklahoma Court of Appeals reversed and remanded the case, giving no credence to US Bank’s statute of limitations argument under 12 O.S. § 1038.

The pro se defendants had a default judgment entered against them for their failure to file an Answer. The homeowners hired me in 2015 after they were served with a Notice of Sheriff’s Sale. I filed a petition to vacate the 2007 default judgment, which the trial court denied, but we won a reversal on appeal. The opinion contains a good discussion of § 1038, the statute of limitations to challenge judgments, and when the refusal to vacate a default judgment is an abuse of discretion.

Here is a link to the slip opinion: U.S. Bank vs. Smith.

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Street Law School: How To Make Use of the Noncustodial Parent Visitation Rights Law

November 5th, 2014

visitationThe Noncustodial Parent Visitation Rights Law went into effect on November 1, 2014, and allows noncustodial parents a somewhat simpler way of enforcing their custody schedule when it isn’t being followed by the custodial parent. The new law amends Oklahoma statute 43 O.S. § 111.3, and provides an almost Small Claims Court type procedure that begins with the filing of a MOTION FOR ENFORCEMENT OF NON-CUSTODIAL PARENT VISITATION RIGHTS. The motion must detail the visitation schedule violations and requires that a hearing on the request be scheduled within 21 days, but it could be much sooner in some counties.

An ORDER and Notice of Hearing is issued by the Court, and PROOF OF SERVICE BY CERTIFIED MAIL must be filed at or prior to the hearing. If the other parent is not served at least 10 days before the hearing, the court likely will not hear the case as scheduled, but the matter still must resolved within 45 days.  At the hearing, the Court will evaluate the visitation schedule and the claimed violations, and possibly punish the violator.  If the Court finds that the visitation rights of the noncustodial parent have been “unreasonably” denied or otherwise interfered with by the custodial parent, the Court will enter an order which may provide for one or more of the following remedies:

  1. A specific visitation schedule;
  2. Compensating visitation time for the visitation denied or otherwise interfered with, which time shall be of the same type (e.g. holiday, weekday, weekend, summer) as the visitation denied or otherwise interfered with, and shall be at the convenience of the noncustodial parent;
  3. Posting of a bond, either cash or with sufficient sureties, conditioned upon compliance with the order granting visitation rights;
  4. Attendance of one or both parents at counseling or educational sessions which focus on the impact of visitation disputes on children;
  5. Supervised visitation; or
  6. Any other remedy the court considers appropriate, which may include an order which modifies a prior order granting child custody.

In any event, the Court is required to assess reasonable attorney fees and court costs to the prevailing party on the motion for enforcement of visitation rights. This means that the custodial parent having to respond to the motion may recover her counsel fees if the motion was not well founded.

The new law includes sample forms noncustodial parents can use in lieu of hiring an attorney.

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Another Foreclosure Avoided

April 16th, 2014

10623056-detroit-foreclosure-preventionThis week I was able to obtain a dismissal of a foreclosure case filed in 2011 after my client successfully completed his loan modification. He just needed some time, and that is what I was able to obtain for him.

Good people sometimes need a second chance. Most foreclosures are a result of an unexpected life event, such as:

  • Death in the Family
  • Difficult and costly Divorce
  • Lost Job or had to Change Jobs
  • Health problems with Expensive Medical Bills

And never before has the expression “If I could just buy some time” meant so much. When facing foreclosure homeowners need time to discover their options, analyze their situation and implement an action plan. The most precious commodity is time…And it’s running out.  However, there are various ways that an attorney can get you the time you need.  Sometimes, as in a recent case, it is as simple as filing an Answer to the Petition and requiring the foreclosing lender to actually prove that it is the proper Plaintiff to bring the case.  If it isn’t a Dismissal Without Prejudice is appropriate.  Other times, as in another recent case, deficiencies in the Lender’s Motion for Summary Judgment can be identified, and the Judge may issue an Order denying the Lender’s Motion for Summary Judgment.

Homeowners’ options are changing because of the magnitude of the housing problem.  There is a chance to work things out with the lender if the homeowner fights for that chance. More banks are willing to work with borrowers today simply because they really can’t manage the huge backlog of homes which have already been lost to foreclosure. If the borrower can present a viable plan to repay the loan, the chances of retaining home ownership are pretty good.

The process can go fairly quickly. Here’s a basic rundown of the mortgage modification process and how long each step takes:

• Obtaining the modification package: Getting a loan modification package in the mail can take anywhere from a few days to a few weeks, depending on how long it takes to get a hold of the right loss mitigation manger, and of course, how many other modification requests being considered at the moment.  Lately, the attorneys for the foreclosing lenders have been willing to forward the applications directly to the attorney for the homeowner.  This can speed up the process.

• Submission of the loan modification package: It should take a week to fill it out and get it back to the lender with all the requested documents.

• Underwriting and internal auditing: Once the lender receives the modification package, they will check it over for mistakes, and then send it on for an in-depth review. Assuming that no questions arise regarding the paperwork, this should only take a few days.

• Assignment to a mitigation specialist: After being reviewed by the underwriters (which can take another week or two), the matter will be assigned to a loss mitigation specialist who is authorized to make the final decisions regarding the loan modification request.

• Decision and mitigation process: One of the longest parts of the process, this step can take several weeks as the loss mitigation specialist reviews the request and begins negotiating new loan terms. It may take a week or two or even a month or two to complete – that really depends on the specialist’s case load.

• Completion of the new loan: Once the modification request is approved, the lender will send a packet to fill out and sign within 3-5 business days to complete the modification.

Getting a loan modified can take several weeks to several months to complete. The key is being pro-active and patient, all at the same time.  A foreclosure defense lawyer is necessary to handle the foreclosure case, but homeowners don’t need to hire an expensive company to do their loan modification. On the contrary, doing the loan mod, or a short sale, yourself while your attorney defends the foreclosure case may lead to a better result and thousands of dollars saved.

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Victory on Appeal in BAC Home Loans Servicing vs. Graybill

December 13th, 2013

I am pleased to announce that I have another appellate court victory. This time in an unreported case where I was hired only after the homeowner had already had judgment granted against him by the trial court.

Here is a link to the slip opinion: BAC vs Graybill

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