If I should call a sheep’s tail a leg, how many legs would it have?
According to Abe Lincoln, “only four, for my calling the tail a leg would not make it so.” So begins the Eleventh Circuit’s opinion holding the motion to reschedule a foreclosure sale was not a motion for an order of sale within the meaning of the RESPA regulation governing loss-mitigation procedures.
The language of 12 C.F.R. 1024.1(g) prohibits a loan servicer from moving for an order of foreclosure sale after a borrower has submitted a complete loss-mitigation plan. Under the plain language of the regulation, a motion to reschedule a previously ordered foreclosure sale is no more a motion for an order of sale than a sheep’s tail is a leg!
This conclusion is reinforced by the construction canon favored by Justice Scalia, known as the “associated word cannon” in English, but more commonly referred to by learned colleagues as the “noscitur a sociis canon.” (Thank god for high school Latin helping me pass the bar!)
The regulation prohibits motions for foreclosure judgments and motions for orders of sale, in addition to foreclosure sales themselves after a borrower has submitted a complete loss-mitigation plan. All of these are clearly substantive and dispositive motions or actions, and a rescheduling is not. Et voila! (For those of you not conversant in French, that translates roughly as, “Take that, plaintiff!”)
For more fun, read Landau v. Roundpoint Mortgage Servicing Corp., — F. 3d — (2019 WL 2428443, June 11, 2019).