US Bank v Ibanez: Now They Are Getting the Point

Many Thanks to Max Gardner for this contribution:

See  entire Case at US Bank v Ibanez Memo of Decision Denying US Bank Mts Oct 14 2009Misc 384283 and Misc 386755

See Neil’s Abstract: judge-long-principal-must-be-disclosed

See Boston Globe Article: judge-long-massachusetts-foreclosure-decision-throws-securitization-intermediaries-into-chaos-reo-sales-stopped

See what-do-these-case-decisions-mean

US Bank v Ibanez. Memo of Decision Denying US BankMts. Oct.14.2009 Misc 384283 and Misc 386755.doc “The issues in this case are not merely problems with paperwork or a matter of dotting i’s and crossing t’s. Instead, they lie at the heart of the protections given to homeowners and borrowers by the Massachusetts legislature. To accept the plaintiffs’ arguments is to allow them to take someone’s home without any demonstrable right to do so, based upon the assumption that they ultimately will be able to show that they have that right and the further assumption that potential bidders will be undeterred by the lack of a demonstrable legal foundation for the sale and will nonetheless bid full value in the
expectation that that foundation will ultimately be produced, even if it takes a year or more. The law recognizes the troubling nature of these assumptions, the harm caused if those assumptions prove erroneous, and commands otherwise.”
>

> THIS IS A MUST READ CASE ON STANDING, REAL PARTY IN INTEREST, THE
> ALPHABET PROBLEM, SECURITIZATION, FOLLOWING THE CONVEYANCING RULES OF
> THE POOLING AND SERVICING AGREEMENET, ASSIGNMENTS IN BLANK, POST-FILING
> ASSIGMENTS, ETC. The above quote is from the final conclusions in the
> decision. I started highlighting the important stuff in red font but
> most of the written decision is now red. This is a VERY important case.
>
>
> O. Max Gardner III
> PO Box 1000
> Shelby NC 28151-1000
> 704.418.2628 (C)
> 704.487.0616 (O)
> 888.870.1647 (F)
> maxgardner@maxgardner.com
> http://www.maxgardnerlaw.com
> http://www.maxbankruptcybootcamp.com
>
>

About these ads

27 Responses

  1. Ray Shelton, on December 19, 2013 at 12:20 am said:

    US Bank and SN Servicing has submitted Forged documents in our federal bankruptcy case too and we will never stop perusing them in court for damages. We are also asking our Federal judge to prosecute their current attorney out of Jacksonville Florida who continued to defend this case knowing that forged document are before a federal court. All the offending parties at SN Servicing and their attorneys are committing a serious crime against our country. We have filed a formal complaint with the FBI and the US attorney general and many great Judges all across this nation are finally stopping them from this kind of fraud on American families. US Bank and SN servicing and their attorneys are also violating a serious consent order that was to protect the people from these crimes but they could care less. Please feel free to have your clients join a class action suit so that we can end their behavior with a multi billion dollar punitive damage suit. Join us, call Ray Shelton in Florida at 352 274 8467

  2. LAWYER PRO SE WINS IN MA APPEAL FEB 2013

  3. So let me get this straight, I had a loan with Wells Fargo, it was sold, it is now a WFMBS. I have asked repeatedly for a copy of my note and all I get is a copy of my original mortgage with a notary signature that is dated several days past the day I signed my paper work. I know that my 2005-18 certificate went from Wells Fargo to Wachovia Bank to US Bank. Wells Fargo has denied me for any kind of loan modification,UMA, UP, they will not even have me fill out any paperwork. My last resort is bankruptcy and I live in the state of California. Can I treat my “loan” with Wells Fargo as unsecured? They make up investor guidelines all the time, they don’t have to show them, there is no transparency in what they do, I would love to win using their own set up!
    Suzanne

  4. Hi Deontos and Dan Edstrom:
    It’s almost a year since I made that comment on Oct. 2009. I did not visit the site because I was too busy.
    I want to thank God for this website. Mr. Garfield, I am deeply moved with all the infos.

    Here is an update:

    My daughter has two properties. It is over two years since we paid mortgage. I registered our pre-paid notes with the Sec. of State, in Hawaii, it is the bureau of conveyance.

    One of my daughter’s home was invaded, it was forcibly taken from the tenants. They did not even give the tenants time to move out. The commissioner hired an unlicensed private evictor who supposedly skilled in martial arts. The evictor was at first posing as a Sheriff. He was intimidating and flushed out the Occupants, that was in January 2010. (By the way, they did the auction after they went in the house. There was a lot of papers served to the Lenders and servicers by us and we utilized multiple jurisdictions: private, public and International). The judge did not sign the Writ of Possession. I filed in the circuit court under Admiralty Jurisdiction. (Apparently, the court is still open since the year 17… ) I appointed the Judge as the Fiduciary Trustee to close the case since I can not be both a Trustee and Beneficiary on the case. (I signed the alleged mortgage with my daughter in 2006). It is a conflict to be a Trustee and Beneficiary. The Judge did not respond nor closed the case but he also did not sign the Writ of Possession. The document was stamped but no wet ink signature of the judge. A lowly Filing Clerk with no authority signed the Writ of Possession who does not know better.
    The thing is, after they auctioned and supposedly took possession of the property, we received a letter from both the Servicer (of the first mortgage) and the Mortgagee of the second mortgage and advised us to obtain a fire insurance coverage. It appears that they pretended to do the auction and taking possession of our property. The Commissioner admitted to a friend of mine that the only reason why they forced the Writ of Possession (it was not an ejectment ) was because I filed a lawsuit (counterclaim) against the Attorneys to produce the documents to substantiates their claim. Apparently I won the counterclaim but I did not know then how to collect the counterclaim judgment.

    The subject property, until now, in the County records is still under my daughter’s legal name. Its been 8 months ago.

    Several attorneys told me to just go in the house.

    Prior to the day they changed the lock, I filed a Subpoena Duces Tecum to subpoena the Original Note and for the Plaintiff and its attorneys to submit a bona fide proof of the exchange of funds (to verify a valid claim) and among other things. The Plaintiff’s attorney did not show up. It was too bad that I did not follow up because the Attorney was in contempt of court.
    I have done a lot of paperwork and I was by myself trying to save my properties. I filed a Mail fraud because the attorneys sent envelopes under fictitious names: (NAME IN ALL CAPS).

    I have counted approximately 30 lawyers who came after me like a bunch of wolves and they always write to me at the same time. One attorney claimed in his court papers that the Lender had to change their name because I filed a lien and froze their assets. Same Attorney had also influenced two of the Notary Publics to stop doing presentment for us. I was told that Notary Publics are Federal Witnesses and by influencing the Notary Publics it was a Deprivation of Rights and Conspiracy Against Rights.

    I have no law degree, I have no assistance. It was like being thrown in hell and back. The attorneys sent private parties for eviction.
    It will be checkmate based on their agreement to a contract. They have not proven their claim and the Court allow them to commit these barbaric acts. They have agreed to subrogation and subjugation regardless of who is in default if they cannot bring forth the evidence of their claim. They have agreed to a contract to forfeit their properties for failure to submit their scope, authority and jurisdiction. I asked for their Public Hazard Bonds and none of them submitted. I asked them to file a 1099 OID and submit to me Forensic Accounting to correspond with FinCen 101.
    They did not respond to this.

    I asked them to identify the Note Holder, no response. In fact, one lawyer said that all my demands were outrageous. In 2009, I ordered a title report and there is proof of broken assignments. I recorded all these. The named (Lender) party on the Note did not assign to the servicer. The servicer who is non-party interest assigned to a Trustee of the Pool ( Asset-backed Securities).

    On one of my properties, there are two different companies who knocked on my door claiming to be representing two different owners. Can you imagine how embarrassing for the lawyers? Two private individuals both claimed to represent two different owners. I think the commercial world have gone mad.

    I had to read the maxim law in order to help myself.
    What I am sharing is not a legal advice and I am not a lawyer. But who is? I found out that the BAR is a private organization and the card is not an authorization to practice law. What happened to the missing 13th amendment anyway?

    God bless all of you. Take care of yourselves and remember to ask God’s help and please trust him. Even in the midst of a storm you can still find peace within. It was difficult. Sometimes when things don’t happen the way you want it, trust that there is a reason. Have faith. And ask God to help those lawyers to have their humanity back. After all we all need to help each other to grow spiritually.

  5. see this site conorix.com you will see if the have standing to sue avram

  6. I HAVE FILED A CHAPTER 7 BANKRUPTCY. MY HUSBAND, NOW DECEASED, PURCHASED THIS HOME. HE WAS SINGLE AT THE TIME. HE IS THE ONLY SIGNATORY ON THE MORTGAGE. WE MARRIED AFTER THE PURCHASE.
    WE BOTH SIGNED A HOMESTEAD AND IT WAS RECORDED. WE SIGNED A JOINT TENANCY DEED WITH RIGHT OF SURVIVORSHIP.

    THE LENDER AND ITS AGENTS HAVE FORECLOSED ON THE LOAN. THE LENDER NEGOTIATED A FORBEARANCE AGREEMENT WITH ME IN JUNE 2009. I MADE THE FIRST PAYMENT WHICH WAS MAILED ON JUNE 28. THE DUE DATE WAS JULY 1. WITHIN A SHORT TIME THE LENDER COMPLETED THE FORECLOSURE PROCESS. I WAS NOT NOTIFIED UNTIL AFTER THE FACT.

    SINCE I AM NOT A SIGNOR ON THE MORTGAGE WILL AN ACTION TO QUIET TITLE VOID THE MORTGAGE UNDER THE HOMESTEAD PROTECTIONS?

  7. If a mortgage company over pads your escrow, what can you do? I understand RESPA section limits escrow amounts. My mortgage co, Wilshire Credit Corp. recently told us we needed an escrow account to modify. My payments went up $855.34 a month. A total of $10,264.08 a year. My yearly taxes are oly $3,346.68 and they do not pay our insurance. How can they do this and what is my recourse? We can not make such huge payments.

  8. I own 2 commercial mixed use buildings in New York and had original bank with flushings savings and now rossrock funding. Rossrock funding on Dec,2,2009 will try to foreclosure . I would like to know any recommendations of foreclosure
    for Rossrock funding. Please recommend a New York attorney which can assist with putting a lawsuit against the bank.

    Thank You
    Frank Lopa

  9. Dan,

    Thanks for the insight! Seems I have heard about this somewhere else also. Seems to me there was a Minnesota Foreclosure case from the 1980’s that a plaintiff argued similar facts and he PREVAILED?

    The case has been LONG buried.

  10. Deontos,
    The documents Gloria is referring to are very telling. The kicker is that they are actually from the Federal Reserve themselves! They tell the history of money and deposits from something like 1066 when the “goldsmiths” kept peoples gold and gave people receipts. Eventually they learned that they could give out receipts for gold they didn’t have. So they could just generate new money by creating receipts (that should sound familiar to everyone here). That worked out very well for them. Most people call this fraud but its funny the Fed brought it up as the beginning of banking. The other issue is they go on to say that when a new loan is made money is created from thin air. How they actually do it is something like this:

    A new bank account is opened for the borrower (without their knowledge). They write a check off of this new bank account (with NO MONEY IN IT) and use it as the money to fund the loan. When you sign your promissory note, they stamp the back and deposit it in to the account. When the check is presented for payment, the money is used in the account to pay it. The assets and liabilities BOTH increased for the bank but only one of them decreased wihen the check is paid. This leaves a bank account with a liability. You just don’t know that the bank is obligated to pay you the money left in the account (you have one of these for every loan you made with a Federal Bank).

    That is what I remember, it might be off slightly. But the documents Gloria was referring to explain it very good.

    If you or I wrote a check with a bank account that did not have the money in it we would be charged with a class “C” felony. Banks do this every single day when making loans.

    Also – this is a standard procedure in GAAP (Generally Accepted Accounting Principles).

    Everyone should read these two documents, they are very educational (and again they come directly from the Fed).

    You can make this argument and I have heard that there are various cases out there and the issue has not been decided. I just don’t think any judge is going to go that far but you never know.

    It could also be another great reason to get the accounting entries for all of the entities involved (those who passed around the whiskey bottle).

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  11. Gloria,

    We are all here trying to help each other.
    In light of that all contributions are I am sure
    appreciated. I will look up your material
    as soon as time permits.

    Having said that; I can tell you Dan may not
    be a lawyer but he has obviously “BEEN IN THE
    STORM” for good while. I haven’t even read
    all his posts. But from what I have read he
    speaks from experience and excellent reasoning.
    That isn’t to say we all agree about everything,
    I am sure we don’t.

    The strategies on this website are working. It is
    sad it is taking so long for the wheels of justice
    to WTFU. I personally thought I was on a Quixotic
    Journey doomed to misadventure and failure until
    I discovered livinglies.

    I have actually had email exchanges with people
    who are “tilting at the windmill” with winning results.

    PLEASE. Keep posting your progress. If you have
    another approach that demonstrably WORKS;
    I can only speak for myself, I will be “legally grateful”.

  12. Gloria,
    I would argue that you are up against a difficult defense using that argument. I know what you are talking about – I have read the documents. You would need an accountant as an expert witness. This will be hard for a judge to accept because it would mean that in all loan transactions (before securitization or after) the “lender” committed a class “C” felony in that they issued a check (your loan) in which funds were not available (at the time the check was written). This is because new money was created by the check (or you are loaning yourself the money using a bank account in your name that they didn’t tell you about. You can use it as a defense (to throw a wrench in the works) but do not put all of your eggs in that basket. If your loans were securitized you should use the methods on this site and any others you can find also.

    Disclaimer: I am not a lawyer or an accountant and these are only my opnions. This is not legal advice.

    Thanks,
    Dan Edstrom
    dmedstrom@hotmail.com

  13. I have 4 lawsuits going on and it is overwhelming. I have to concentrate that my contracts were breached for non-disclosure.

    I have to concentrate and let them know that the promissory notes were deposited into borrowers’ transaction accounts, which can be payable upon demand, according to the Federal Reserve’s publication of “Modern Money Mechanics” p.6 and “Two Faces of Debt” p.19.
    Read Securitization 1 Jean Keating’s transcript. This may help a lot understanding. You need to educate yourself.

  14. Hi Folks,

    Here’s some questions they’ve been refusing to answer. Ok so they come to court with knowing they have no standing before ever filing a proof of claim.

    Debtor made out to be bad guy for knowing their commiting fraud upon the court. Some of the biggest crooks at the helm of this mess are trustees themselves. Or else I wouldn’t of received two recusals…Just what do you expect us to do when you don’t even know who has what in their contract to do what for xyz…

    Its funny about Citi…Billions in write downs…Wonder when the shareholder loses out…Before write off or after write off?

    If their claiming ownership why not bring out the security instrument? Show us whose benefiting from the LIES? Besides having our homes stolen? Why are we not to have a BENEFICIAL opportunity to enhance our futures? Just a select few is for the birds…

    I never had a beef with any attys just always collected for them until you find out you can’t even take a job with a large national collection agency and know what their telling you is the truth! Everything , I’ve been saying for the last few years has been playing out just as I predicted…Think I’m kidding about the lawyers? There’s history that shows that the two trustees in question have a bad history with attempting at all costs to encourage people to break the law to collect a debt! These guys operate nationally. The last complaint about this buisness operation for such tactics was in 1996 I believe maybe 93 by another atty but I’m just crazy for trying to tell the truth!

    My atty played it off like the judge doesn’t believe anything bla bla bla…Now look at their mess…the atty after he f/me over now claims since I tried to clear things up by telling the court everything I know that no one will represent me…

    Geez…I knew this would be the outcome before it came to this degree…he didn’t believe what I told him…Still doesn’t…Even though I can prove I had bankers ready to spend xyz to insure i keep everything I have…And could probably help raise money for people if there was any REAL BANKERS OUT HERE!

    So whose to help? Watch TV its bank this and that…Try to get answers to MAKE A CHANGE FOR REAL and YOU’RE had! I wonder if maybe I start sending out my info if it’ll even help. Nationally people are being refused adequate knowledge…People going on by the hair on their feet is for the birds…

  15. No one is talking about it and I don’t know why-did Rose Mortgage hold itself out as out as a “lender” lending it’s own money? Can’t be – Bank Act prohibits it Section 55. The endorsement can’t be legal either, Currency Act Section 27. Isn’t that why we have a closing, haven’t we “closed” the loan by that point?

    Matt

  16. Matt: Sounds like you are onto something. Can you expand and clarify?

  17. doesn’t the US Bank V Ibanez case also speak to a viloation of the National Bank Act of 1864 that under section 55 the Bank CAN”T lend on its circulation so that any bank “Acting” as the lender is in violation as well?

  18. When reading these cases, you have to remember that other states may allow foreclosure by advertisement, which is an extra-judicial proceeding. The traditional requirements of standing do necessarily not apply because there is no court action. Indeed, the first note holder is wiped out in foreclosure by advertisement regardless of the value of the property, and even if the wrong party forecloses. This is not the case in states such as Ohio. Therefore, a common mistake is to think that cases in other jurisdictions apply with equal weight in your case. Most often, they do not.

  19. sorry Neil…
    my post was a genuine compliment with total sincerity .

  20. “stopping mortgage fraud in its tracks before loans are funded.”

    Do you suppose they meant to write;

    “INITIATING MORTGAGE FRAUD BEFORE LOANS ARE EVEN FUNDED?”

  21. This is like nailing the barn door shut after all the cattle are gone. Fraudsters ALL.

  22. Clearly neither US Bank, as Trustee, nor Wells Fargo, as trustee had EQUITY in the properties they
    sought to foreclose because they did not have the
    MORTGAGES. They only had the NOTES!
    This shows me that many lawyers do not under-stand the difference between an EQUITY action and a
    LAW action. Foreclosure Court = EQUITY COURT.
    The above plaintiffs had NO EQUITY in the properties.
    They should have filed their cases in LAW COURT,
    obtained a money judgement, and then applied for a
    Sheriff sale of the defendants property. They didn’t do this either out of ignorance or because they realized that to do so would have meant they were admitting to being UNSECURED CREDITORS and the money obligation of the defendant could have been modified or even wiped out in BANKRUPTCY COURT!

  23. The Mortgage Bankers Association’s (MBA) annual convention in San Diego this week has seen a flood of new service unveilings and company announcements, including two independent launches of national mortgage fraud databases.

    The idea for a centralized industry repository to arm lenders with information to detect and prevent mortgage fraud was first proposed by the MBA last year, but later tabled. As deteriorating economic conditions have set the stage for more perpetrators and more elaborate schemes, however, three companies have taken up the cause on their own.

    MERSCORP Inc. (MERS) and Interthinx Inc. introduced their national fraud prevention database on Monday. The system will allow lenders to seek, identify, and share suspected fraudulent activity in loan applications from the point of origination, stopping mortgage fraud in its tracks before loans are funded.

    More than 62 million loans are currently registered on the MERS System. MERS FraudALERT, powered by Interthinx, requires lenders to submit incident reports with suspected or confirmed fraudulent activity to a centralized database. The system then notifies other lenders who have loans with connections to the data of possible fraudulent transactions in their pipelines.

    “Fraudsters circumvent [existing] tools by perpetrating multiple instances of fraud concurrently because no one is speaking to each other,” said R.K. Arnold, MERS president and CEO. “Only by creating a collaborative industry wide fraud prevention database can this activity be stopped.”

    The MERS and Interthinx FraudALERT service will be available in the fourth quarter of 2009. Third-party fraud solution vendors will also be able to access the system.

    *the rest of the article can be found here:

    http://www.dsnews.com/articles/companies-launch-separate-national-mortgage-fraud-databases-2009-10-13

    *** AMAZING!!!

  24. Justice instead of “Just Us”.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Follow

Get every new post delivered to your Inbox.

Join 3,524 other followers

%d bloggers like this: