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Editor’s Comment: 

There is no doubt that the tide is turning and that Judges are increasingly uncomfortable with the presence of forged, fabricated documents containing fraudulent statements of fact on transactions that never actually occurred. As this article explains, in Oklahoma — a very conservative red state — they are beginning to realize that it isn’t the borrower seeking the free house it is the foreclosing party who has no financial stake in the outcome except a windfall if they get the house on a “credit bid.”

by Brian Mahany

We have been saying for several months that the tide is beginning to turn against big banks and mortgage lenders. Many courts are beginning to get fed up with the abusive practices of lenders. Recently several state supreme courts have been weighing in on a wide variety issues including missing paperwork, forged affidavits, questionable title and abusive foreclosure or loan modification practices.

When a state supreme court decides a case, the decision takes on considerable weight. As the highest court in the land, a state supreme court decision is generally binding on all trial courts in that state. We were happy to learn that the Oklahoma Supreme Court decided 7 cases this month in favor of homeowners.

The facts in each of the cases were similar. In each case, the court ruled that in order to bring a foreclosure action, the plaintiff must prove that it has the right to enforce the promissory note. No note means no standing to bring the complaint.

It’s in the details that the Oklahoma cases become important.

Many lenders have problems producing the note and mortgage. In recent years, most lenders sell the mortgage shortly after the closing. Banks rarely hold their own paper any more. The mortgages are often packaged, securitized and sold several times. In that process, paperworks frequently is lost. The lost or incomplete paperwork issue was addressed by the court.

The Oklahoma Supreme Court opinion is helpful to homeowners in several ways.

First, the court reaffirmed that the plaintiff must prove it has the right to enforce the note. Courts shouldn’t simply rely on an affidavit from a lawyer saying the bank or servicer has the right to enforce the note. They must prove it.

Next, the court said that the foreclosing party needs to have the note. Just having an assignment of mortgage is not enough. (Often the servicing bank will draft an assignment of mortgage. That requires the lender’s signature. The note, obviously, contains the borrowers signature. If documents are missing it is much easier for a lender to forge a mortgage assignment than to forge a homeowners signature.)

FInally, the court said that the lack of standing (missing note) can be raised at any time. That can be extremely important in foreclosure cases. Often borrowers seek legal counsel after a judgment of foreclosure has issued. Many folks don’t seek legal help until well into the foreclosure process. By the time a lawyer gets the case, discovery periods have elapsed and often there is already a judgment of foreclosure. The Oklahoma court said as long as the case isn’t closed, its not too late to challenge jurisdiction.

Postscript- There are tens of millions of homeowners under water. Many are facing foreclosure. Unfortunately, there are few lawyers that truly understand how to fight big lenders and even fewer actually willing to do so. If you are facing foreclosure, seek professional assistance as soon as possible. Don’t settle for a bankruptcy lawyer or a fly by night foreclosure “rescue” consultant. Foreclosures can be won but it’s not easy.

The average cost for a lawyer to file an answer and defend a foreclosure action is between $2500 and $5000. While there are some highly qualified lawyers that do this work, we think the only thing big banks understand is a counterclaim and aggressive lawyer.

Everyday we receive calls from homeowners across the U.S. Although we write about foreclosure defense, we rarely take such cases. Our primary purpose in writing is to provide general information and offer hope. The cases we do take are lawsuits against banks and lenders for illegal lending, loan modification and foreclosure practices. If you sufered a particularly bad experience, we certainly want to listen.

Our mortgage fraud team is currently co-counsel in the largest federal false claims act case in the nation, the $2.4 billion action on behalf of HUD against Allied Home Mortgage. Large or small, suing banks and getting justice for victims of predatory lending and foreclosure practices is what we enjoy.

Mahany & Ertl, America’s Fraud Lawyers. Offices in Milwaukee, Wisconsin; Detroit, Michigan; Portland, Maine & Minneapolis, Minnesota. Services available in many jurisdictions.

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55 Responses

  1. [...] Read More… Posted in News Around The Country, OK « Doug and Jeff v. Goliath: County Clerks Sue Big Banks for Avoiding Mortgage Recording Fees You can leave a response, or trackback from your own site. [...]

  2. PLEASE remove this website. More than one of us have been hacked!

    joann, on April 24, 2012 at 11:54 am said:

    Here’s a link to the list of OK cases from and interesting source (title co bulletin re underwriting):

    http://www.vuwriter.com/vubulletins.jsp?displaykey=BL133368894600000002

  3. Well, I sent a letter to this company and it was returned as not known. Double checked the address. Anyone else able to contact them?

  4. Well, I tried to contact this law firm and even sent a letter. No such luck. The letter was returned as not known. Double checked the address and its the same one listed in the blog. Anyone else able to contact them?

  5. needcaselaw

    Thanks for the case. It is why people and attorneys in CA don’t even bother trying and why some such as Jeff Barnes a CA attorney who practices nationwide has said the non-judicial process is unconstitutional.

    Haynes cited the right cases though. Worth reading some of those cases. Very different view taken by the other judges and very clear about it citing other cases as well. Good info for any state. This judge admidts controversy exists in court rulings in federal courts. This ought to result in an immediate nationwide moratorium in my view. How can it be ignored? She recommends legislative action.

    Here is a favorite quote about Calvo and it is a comment on another website by someone who sometimes posts here and again I hope he does not mind because I have copied it before……

    “Phred on February 5, 2012 at 8:43 am

    Calvo v. HSBC was affirmed by Ca. Supremes on 1/4/12. It seems to sound the death knell on 2932.5.

    But as Sun Tsu observed “… your enemies will bring weapons to you”. Citing Calvo, a borrower may be able to raise the argument that any RJN (request for judicial notice) for recorded assigned documents is moot because the Calvo ruling determines that not all possible transfers of the beneficiary interest are available to the court as a result. Therefore, lender can no longer rely solely on recorded assignments as evidence of possession of beneficiary interest, and standing of lender is automatically questioned unless lender is the same entity shown on the promissory note.

    With an automatic question of standing of Lender as a party of interest, certainly the question of tender to a party over which the court may have no jurisdiction is no longer required.

    The opinion above is from a person who is not an attorney, and should not be construed as legal advice. Pay a bunch of money to consult a REAL attorney, then ask why they didn’t post this comment.

    Posted with the hopes it will fry some judges’ reputations who are obviously on the take by the banksters.”

    http://theinvisibleveil.com/?page_id=340#comment-3

  6. Joann:
    I love your idea on a group to sponsor payoffs in escrow. Might even be some money in that for the group.
    I note that your argument is taken from a California decision. California is a “title” state, meaning the trustee of a deed of trust holds the title to the property. Even though if you look up “title state” on the Internet it will show that Washington is such, it is not. In Washington the borrower retains title and a lien is recorded against the property (“lien state”). What is conveyed to the trustee is the power of sale. I don’t know how Arizona works. It does make a big difference, as some of the statutes you refer to in California came up in an Appeals Court decision just published: Haynes v. EMC Mortgage:

    http://www.courtinfo.ca.gov/opinions/documents/A131023.PDF

    Here again is how one must carefully consider approach and pleadings based upon state law. Keep up the good work and keep fighting.

  7. needcaselaw:

    “Escrow is a nasty word to those folks. That’s where you bring the money and they have to bring the original note and deed to trust to the table (that language is probably in your note). Of course most homeowners don’t have the money to bring, but if you did (I did) I believe you could turn the tables in an instant: they’ll either show up with forged documents or claim they’re lost. Then the burden of proof is on them.”

    Wish there was a way for someone to invest or speculate in this. Maybe we could securitize a big escrow fund that wins some and loses some but wins most and profits at the expense of banks instead of homeowners for a change.

    Overlooked in non-judicial states where laws are supposed to be even more strict to protect the trustor equally with the beneficiary are ways to “bring the original note and deed to trust to the table (that language is probably in your note)”

    Here is the way to do it in CA –

    “(b) (1) A beneficiary, or his or her authorized agent, shall,
    within 21 days of the receipt of a written demand by an entitled
    person or his or her authorized agent, prepare and deliver to the
    person demanding it a true, correct, and complete copy of the note or
    other evidence of indebtedness with any modification thereto, and a
    beneficiary statement.”

    Note below it must be done in timely fashion which is why there is no notice of the change in beneficiary on the ADOT (violation of TILA, 15 U.S.C. § 1641(g)) and why there is harm in that violation and why they “neglect” to do it. Note the trustor does have the right to see the note and all “modifications” thereof meaning copy of how it appears today (endorsements ect.) without any need for escrow. Also the “beneficiary statement and the included “payoff demand” must be produced by the beneficary not just some no name guy removed by ten computer outfits and hearsay.

    California Civil Code Section 2943

    (a) As used in this section:
    (1) “Beneficiary” means a mortgagee or beneficiary of a mortgage
    or deed of trust, or his or her assignees.
    (2) “Beneficiary statement” means a written statement showing:
    (A) The amount of the unpaid balance of the obligation secured by
    the mortgage or deed of trust and the interest rate, together with
    the total amounts, if any, of all overdue installments of either
    principal or interest, or both.
    (B) The amounts of periodic payments, if any.
    (C) The date on which the obligation is due in whole or in part.
    (D) The date to which real estate taxes and special assessments
    have been paid to the extent the information is known to the
    beneficiary.
    (E) The amount of hazard insurance in effect and the term and
    premium of that insurance to the extent the information is known to
    the beneficiary.
    (F) The amount in an account, if any, maintained for the
    accumulation of funds with which to pay taxes and insurance premiums.
    (G) The nature and, if known, the amount of any additional
    charges, costs, or expenses paid or incurred by the beneficiary which
    have become a lien on the real property involved.
    (H) Whether the obligation secured by the mortgage or deed of
    trust can or may be transferred to a new borrower.
    (3) “Delivery” means depositing or causing to be deposited in the
    United States mail an envelope with postage prepaid, containing a
    copy of the document to be delivered, addressed to the person whose
    name and address is set forth in the demand therefor. The document
    may also be transmitted by facsimile machine to the person whose name
    and address is set forth in the demand therefor.
    (4) “Entitled person” means the trustor or mortgagor of, or his or
    her successor in interest in, the mortgaged or trust property or any
    part thereof, any beneficiary under a deed of trust, any person
    having a subordinate lien or encumbrance of record thereon, the
    escrowholder licensed as an agent pursuant to Division 6 (commencing
    with Section 17000) of the Financial Code, or the party exempt by
    virtue of Section 17006 of the Financial Code who is acting as the
    escrowholder.
    (5) “Payoff demand statement” means a written statement, prepared
    in response to a written demand made by an entitled person or
    authorized agent, setting forth the amounts required as of the date
    of preparation by the beneficiary, to fully satisfy all obligations
    secured by the loan that is the subject of the payoff demand
    statement. The written statement shall include information reasonably
    necessary to calculate the payoff amount on a per diem basis for the
    period of time, not to exceed 30 days, during which the per diem
    amount is not changed by the terms of the note.
    (b) (1) A beneficiary, or his or her authorized agent, shall,
    within 21 days of the receipt of a written demand by an entitled
    person or his or her authorized agent, prepare and deliver to the
    person demanding it a true, correct, and complete copy of the note or
    other evidence of indebtedness with any modification thereto, and a
    beneficiary statement.
    (2) A request pursuant to this subdivision may be made by an
    entitled person or his or her authorized agent at any time before, or
    within two months after, the recording of a notice of default under
    a mortgage or deed of trust, or may otherwise be made more than 30
    days prior to the entry of the decree of foreclosure.
    (c) A beneficiary, or his or her authorized agent, shall, on the
    written demand of an entitled person, or his or her authorized agent,
    prepare and deliver a payoff demand statement to the person
    demanding it within 21 days of the receipt of the demand. However, if
    the loan is subject to a recorded notice of default or a filed
    complaint commencing a judicial foreclosure, the beneficiary shall
    have no obligation to prepare and deliver this statement as
    prescribed unless the written demand is received prior to the first
    publication of a notice of sale or the notice of the first date of
    sale established by a court.
    (d) (1) A beneficiary statement or payoff demand statement may be
    relied upon by the entitled person or his or her authorized agent in
    accordance with its terms, including with respect to the payoff
    demand statement reliance for the purpose of establishing the amount
    necessary to pay the obligation in full. If the beneficiary notifies
    the entitled person or his or her authorized agent of any amendment
    to the statement, then the amended statement may be relied upon by
    the entitled person or his or her authorized agent as provided in
    this subdivision.
    (2) If notification of any amendment to the statement is not given
    in writing, then a written amendment to the statement shall be
    delivered to the entitled person or his or her authorized agent no
    later than the next business day after notification.
    (3) Upon the dates specified in subparagraphs (A) and (B) any sums
    that were due and for any reason not included in the statement or
    amended statement shall continue to be recoverable by the beneficiary
    as an unsecured obligation of the obligor pursuant to the terms of
    the note and existing provisions of law.
    (A) If the transaction is voluntary, the entitled party or his or
    her authorized agent may rely upon the statement or amended statement
    upon the earlier of (i) the close of escrow, (ii) transfer of title,
    or (iii) recordation of a lien.
    (B) If the loan is subject to a recorded notice of default or a
    filed complaint commencing a judicial foreclosure, the entitled party
    or his or her authorized agent may rely upon the statement or
    amended statement upon the acceptance of the last and highest bid at
    a trustee’s sale or a court supervised sale.
    (e) The following provisions apply to a demand for either a
    beneficiary statement or a payoff demand statement:
    (1) If an entitled person or his or her authorized agent requests
    a statement pursuant to this section and does not specify a
    beneficiary statement or a payoff demand statement the beneficiary
    shall treat the request as a request for a payoff demand statement.
    (2) If the entitled person or the entitled person’s authorized
    agent includes in the written demand a specific request for a copy of
    the deed of trust or mortgage, it shall be furnished with the
    written statement at no additional charge.
    (3) The beneficiary may, before delivering a statement, require
    reasonable proof that the person making the demand is, in fact, an
    entitled person or an authorized agent of an entitled person, in
    which event the beneficiary shall not be subject to the penalties of
    this section until 21 days after receipt of the proof herein provided
    for. A statement in writing signed by the entitled person appointing
    an authorized agent when delivered personally to the beneficiary or
    delivered by registered return receipt mail shall constitute
    reasonable proof as to the identity of an agent. Similar delivery of
    a policy of title insurance, preliminary report issued by a title
    company, original or photographic copy of a grant deed or certified
    copy of letters testamentary, guardianship, or conservatorship shall
    constitute reasonable proof as to the identity of a successor in
    interest, provided the person demanding a statement is named as
    successor in interest in the document.
    (4) If a beneficiary for a period of 21 days after receipt of the
    written demand willfully fails to prepare and deliver the statement,
    he or she is liable to the entitled person for all damages which he
    or she may sustain by reason of the refusal and, whether or not
    actual damages are sustained, he or she shall forfeit to the entitled
    person the sum of three hundred dollars ($300). Each failure to
    prepare and deliver the statement, occurring at a time when, pursuant
    to this section, the beneficiary is required to prepare and deliver
    the statement, creates a separate cause of action, but a judgment
    awarding an entitled person a forfeiture, or damages and forfeiture,
    for any failure to prepare and deliver a statement bars recovery of
    damages and forfeiture for any other failure to prepare and deliver a
    statement, with respect to the same obligation, in compliance with a
    demand therefor made within six months before or after the demand as
    to which the award was made. For the purposes of this subdivision,
    “willfully” means an intentional failure to comply with the
    requirements of this section without just cause or excuse.
    (5) If the beneficiary has more than one branch, office, or other
    place of business, then the demand shall be made to the branch or
    office address set forth in the payment billing notice or payment
    book, and the statement, unless it specifies otherwise, shall be
    deemed to apply only to the unpaid balance of the single obligation
    named in the request and secured by the mortgage or deed of trust
    which is payable at the branch or office whose address appears on the
    aforesaid billing notice or payment book.
    (6) The beneficiary may make a charge not to exceed thirty dollars
    ($30) for furnishing each required statement. The provisions of this
    paragraph shall not apply to mortgages or deeds of trust insured by
    the Federal Housing Administrator or guaranteed by the Administrator
    of Veterans Affairs.
    (f) The preparation and delivery of a beneficiary statement or a
    payoff demand statement pursuant to this section shall not change a
    date of sale established pursuant to Section 2924g.
    (g) This section shall become operative on January 1, 2014.

  8. I think (and I am no one and just test my thinking) the salient point to make to the judge if necessary and without complex detail re the laws that govern the trusts (no loans in eminent default or default can be sold or transferred – no transfers after 90 days – true sales- irrevocable sales – arms-length transactions – bankruptcy remote – chain of required sales is from sponsor seller to depositor to trust – assignment and endorsement by sponser seller to depositor to trust no others – no A to D transfers allowed (Max Gardner alphabet) – documents kept in recordable form for the state in which the property is located to protect investor’s interest – all warrented and represented to investors and govt. agencies and posted on the SEC site and reported to IRS)…

    is that the ADOT to the trust years after the closing date is an impossible act.

    First the party making the ADOT has no beneficial interest it can transfer to anyone. If that party had knowledge of that with intention to defraud anyone (not just the homeowner) it is a fraudulent act (and I think there are ways to prove this) – it is a fraudulent claim of beneficial interest recorded in the public registry which will be used to fraudulently foreclose on a home and it was facilitated by fraudulent robo signers who are not who they say they are in writing on manufactured fabricated documents.

    Second the trustee bank for the trust would be committing fraud on the investors as per the laws governing the psa and the sec and the irs ect if they accepted this sale “For Value Received” as it says on the ADOT or any assignment or transfer to the trust now for any reason by anyone (the documents needed to record or prove the “writings” for the trust are not the bogus ADOT from the servicer to the trust). Article 3 and Article 9 in tandem of the UCC address this (as per Permanent Editorial Board explanations) and what is needed in non-judicial in order to “enforce”. State foreclosure statutes and fraud statutes and codes as well. (and in CA these are ignored re Calvo but there are ways around this).

    Third the fraudulent ADOT now clouds the title and the purported beneficiary named in the ADOT – the trust- cannot foreclose using that fraudulent transfer.

    Fifth the trust received nothing from someone with nothing to sell or transfer.

    Fourth why was the ADOT done at all? It is an indication the trust never had ownership of the mortgage asset in the first place.

    This last may be an issue for the trusts to take up with the originators and the trustee bank but where does that leave the homeowner and their home? Who gets to foreclose now or receive payment or mod?Where have their payments gone? Did they pay the wrong party? Do they still owe some undisclosed party or not and who is it?

    How to make the points in as few words and complexities as possible and provide enough evidence (as the plaintiff) to compel discovery is the challenge.

  9. Joann:
    You’re touching on the essence of why the system of mortgage securitizations is evil from the start. Isn’t it true that you have multiple parties claiming this mortgage as an asset? (the bank, the trust(s), the default-swap betters, etc.) So whose asset is it really? I don’t know if you’ve seen an article I wrote on the history of loan securitization – http://www.scribd.com/doc/84054715/SecuritizedMortgages-A-History-of-Fraud
    There’s a citation in there from the Washington Supreme Court that is very much on point to what you’re talking about (and in the context of a securitized mortgage), because the party who is the holder of the note and has the right to the revenue stream would seem to be the only one legally entitled to get paid – either regular payments, or to receive a payoff (see page 10). Being in the position to demand proof that the payee is entitled is part of the tricky dance, as you’ve pointed out. That’s why bringing action to quiet title has been joined to many suits: you can easily prove your claim to the property, now it’s their turn to prove their interest. My case all began when I foreclosed from second position on a property and then tried to pay off the first. I offered to do so in escrow. They initially said they’d send a payoff statement in five days but I never heard anything. Instead they initiated foreclosure without notifying me. Escrow is a nasty word to those folks. That’s where you bring the money and they have to bring the original note and deed to trust to the table (that language is probably in your note). Of course most homeowners don’t have the money to bring, but if you did (I did) I believe you could turn the tables in an instant: they’ll either show up with forged documents or claim they’re lost. Then the burden of proof is on them.
    Even if you can’t get to escrow, if, as the courts seem to say on both sides of “who is party to the securitization process?” question, there is a moving of the ownership of the debt, and hence the authority to enforce the note, then the rules of the UCC and chain of title for both note and deed come into play (although your recent Arizone Supreme Court ruling weakened the latter), headed up by the statute of frauds. That is generally trumped as between parties to a contract. But, if as some courts have said above, you are NOT a party to that contract, then the statute of frauds threshold must be met. But statutes of frauds are defense to a claim, not an offense, and so are available when you’re not the plaintiff in an action.
    I’m rambling. Keep at it and thanks for your additions here.

  10. Needcaselaw and nabdulla

    From needcaselaw: “as between the parties to a securitized trust they have to follow the rules of that state because that’s where the contract is being entered into”

    The PARTIES to the psa and the psa are governed by New York trust law (and don’t forget Delaware trust law – miany are Delaware trust law which might complicate things a bit or might not depending).

    But different judges have different views about who is party to the psa. The judge in Horace Alabama one of the first cases to consider ownership per securitized trust (and this is who is purportedly foreclosing isn’t it with their indentured trustee bank who holds no beneficial interest?) said the homeowner was a party. He might be the only one but other cases even at the supreme court level have used the psa re owner and holder of note ect.

    In my state the banksters repeatedly point out to the judge that the psa and the securitization is irrelevant because the homeowner is not a party to the psa (and the homeowner is delinquent and or a deadbeat) and the judge parrots it in their rulings (the judges don’t want to “waste” time with the securitization docs and neither do attorneys). The judge cites the state statutes and codes. So that plus a few unfortunate rulings at the state supreme level cause attorneys in this state to say no way to be a plaintiff in this state (and in non-judicial you have to be a plaintiff to challenge a foreclosure and burden of proof is on you). So it is basically open season for anyone to foreclose on anyone automatically, uncontested and un-noticed.. However the judge in this case (Johnson vs. HSBC Bank USA, NA as Trustee for the Ellington Trust Series 2007-1, Bank of America, NA and does 1 – 10) had something to say about that and discusses a case the bankers repeatedly point to in avoiding any discussion of psa.

    It seems to me the simple discussion re psa is who acquired beneficiary status and when and who has received the benefit of the homeowner payments from origination and were they the proper party to receive the payment and who is the proper party to seize the home for non-payment or be paid now how much or mod:

    http://dtc-systems.net/2012/03/action-survive-motion-dismiss-california-federal-case-bank-america/

    “A. Viability of Attack on Loan Securitization

    1. Ability to Challenge Loan Securitization

    The threshold issue of whether Plaintiff can make any claim related to the loan’s securitization affects the viability of many of the individual claims discussed below. BOA cites Rodenhurst v. Bank of America, 773 F.Supp.2d 886, 899 (D. Haw. 2011) for its statement that “[t]he overwhelming authority does not support a cause of action based upon improper securitization.” However, the discussion cited in that case centers on plaintiffs who claim that securitization itself violates the agreement between the mortgagor and mortgagee. Here, Plaintiff does not dispute the right to securitize the mortgage, but alleges that as a result of improper procedures, the true owner of his mortgage is unclear. As a result, he has allegedly been paying improper entities an excess amount. Ninth Circuit district courts have come to different conclusions when analyzing a plaintiff’s right to challenge the securitization process as Plaintiff has here. See Schafer v. CitiMortgage, Inc., 2011 WL 2437267 (C.D. Cal. 2011) (denying defendants’ motion to dismiss declaratory relief claim, which was based on alleged improper transfer due to alleged fraud in signing of documents); Vogan v. Wells Fargo Bank, N.A., 2011 WL 5826016 (E.D. Cal. 2011) (allowing § 17200 claim when plaintiffs alleged that assignment was executed after the closing date of securities pool, “giving rise to a plausible inference that at least some part of the recorded assignment was fabricated”). But see Armeni v. America’s Wholesale Lender, 2012 WL Case 3:11-cv-02091-JM-WVG Document 22 Filed 03/19/12 Page 4 of 14 603242 (C.D. Cal. 2012) (dismissing declaratory relief, quasi-contract, UCL, and accounting claims because “plaintiff lack[ed] standing to challenge the process by which his mortgage was (or was not) securitized because he is not a party to the PSA”); Junger v. Bank of America, N.A., 2012 WL 603262 at *3 (C.D.Cal. 2012). Here, the court finds that Plaintiff is not categorically excluded from making claims based on allegations surrounding the loan’s securitization.3 As in Vogan, and unlike Armeni, Plaintiff here alleges both violations of the PSA and relevant law. BOA has not sufficiently demonstrated that violations of law associated with the loan’s securitization can go unchecked because Plaintiff is not a party to the PSA. Other cases cited by BOA on this issue are irrelevant or inapplicable here.”

  11. nabdulla:
    The ENFORCEMENT of a note is the enforcement of a contract and governed by the laws of the state in which it is executed (unless otherwise stipulated to in the instrument – and I’ve not seen that in a mortgage since its tied to real property and state law is mandatory in that regard).

    The Uniform Commercial Code is NOT uniform. For example in Washington there is no provision for the trading in lost notes:

    RCW 62A.3-309
    (a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

    The federal boilerplate reads:
    § 3-309. ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.

    (a) A person not in possession of an instrument is entitled to enforce the instrument if:

    (1) the person seeking to enforce the instrument

    (A) was entitled to enforce it the instrument when loss of possession occurred, or

    (B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;

    (2) the loss of possession was not the result of a transfer by the person or a lawful seizure; and

    (3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.

    Observe that 3-309(a)(1)(B) DOES NOT EXIST IN WASHINGTON. It does in Texas. However, you make a good point – as between the parties to a securitized trust they have to follow the rules of that state because that’s where the contract is being entered into. Thus, I think we’re both right – study your state’s version regarding right to enforce; study New York’s when you’re going through the PSA terms looking for violations.
    Thanks for keeping me on my toes.

    Joann:
    Nice culling on that case. Yes, if you’re going to be pleading TILA violations you’re probably going to end up in federal court.

    [1993 c 229 § 37.]

  12. needcaselaw, on April 25, 2012 at 12:36 pm said:

    “Dear Hman….One needs to pull out your state’s version of the UCC, because that sets the rules on how notes (negotiable instruments) get from place to place….”.

    Bear with me dude. I would agree with all that you said EXCEPT that one little part that says, “your state’s version of the UCC” – and beg correction here if I’m incorrect.

    The following comes directly out of an Indenture: “Section 11.13. Governing Law. IN VIEW OF THE FACT THAT NOTEHOLDERS ARE EXPECTED TO RESIDE IN MANY STATES AND OUTSIDE THE UNITED STATES AND THE DESIRE TO ESTABLISH WITH CERTAINTY THAT THIS INDENTURE WILL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF A STATE HAVING A WELL-DEVELOPED BODY OF COMMERCIAL AND FINANCIAL LAW RELEVANT TO TRANSACTIONS OF THE TYPE CONTEMPLATED HEREIN, THIS INDENTURE AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.” http://www.sec.gov/Archives/edgar/data/1345034/000119312505235928/dex41.htm.

    My point is – and again, please correct me if I’m wrong – IT DOESN’T MATTER WHAT STATE you’re in – judicial or non-judicial – if your NOTE is alleged to be in a securitized “trust”, and the trust Indenture, PSA, has in it language to the effect that “EACH NOTE” therein is “GOVERNED BY THE LAWS OF THE STATE OF NEW YORK” – it’s the NEW YORK “version of the UCC” and NEW YORK case law and court decisions you should familiarize yourself with to proceed with your beatdown.

    Hi Nancy….welcome home :-)

  13. @ Enraged

    “Enraged, on April 24, 2012 at 5:19 pm said:
    Arrests? Did i really read “arrests”? Is it really at the bottom of the article? Man, what a day! And it isn’t even my birthday!”

    As usual, I have to hold my myself from the pain of laughing so hard at your posts. :-)

    I don’t know if anyone has did it yet, but I want to thank you for keeping up with and posting those resignations.

  14. needcaselaw. Thanks. The last was just saying in a general way that your quotes are at the root of what ails us.

    Just wanted to share with you why I was thinking federal court in CA………

    BILLI VOGAN and HAROLD TRAUPEL, individuals, Plaintiffs, v. WELLS FARGO BANK, N.A.; US BANK NATIONAL ASSOCIATION,

    Excerpts:

    “….The Court has jurisdiction over the TILA claim against U.S. Bank pursuant to 28 U.S.C. § 1331. The Court has jurisdiction in its discretion over the remaining state law claims if they are pendent from the federal TILA claim pursuant to 28 U.S.C. § 1367.

    ….Plaintiffs’ sole federal claim is against U.S. Bank for allegedly violating a provision of TILA, 15 U.S.C. § 1641(g).

    …As discussed above, Plaintiffs did plead a valid federal claim giving the Court jurisdiction over that claim pursuant to 28 U.S.C.

    ….§ 1331. The Court may, in its discretion, exercise jurisdiction over pendant state law claims pursuant to 28 U.S.C. 1367.

    ….The Court finds that the remaining state law claims are all pendant from the federal TILA claim. The state law claims arise out of the origination, sale, default, and foreclosure of the note securing the loan used to purchase the Property. Accordingly, the Court asserts jurisdiction over the state law claims and decides Defendants’ motion to dismiss those claims as follows

    …..As discussed above, Plaintiffs alleged that the recorded assignment was executed well after the closing date of the MBS to which it was allegedly sold, giving rise to a plausible inference that at least some part of the recorded assignment was fabricated. Plaintiffs allege that such conduct, if proven, constitutes a violation of Cal. Penal Code § 532f(a)(4). Compl., at 24. That section prohibits any person from filing a document related to a mortgage loan transaction with the county recorder’s office that is known to be false, with the intent to defraud. Cal. Penal Code § 532f(a)(4).Accordingly, the Court DENIES Wells Fargo and U.S. Bank’s motion to dismiss this claim.

    ….The Court holds that the tender requirement does not apply to this case because Plaintiffs are challenging the beneficial interest held by U.S. Bank in the deed of trust, not the procedural sufficiency of the foreclosure itself.

    Plaintiffs’ Complaint brings ten causes of action against various defendants: (1) Declaratory relief as to the rights and obligations of Plaintiffs and all defendants with regard to the Property and Plaintiffs’ mortgage; (2) Negligence against all defendants; (3) Quasi-Contract against Wells Fargo and U.S. Bank;4) Unfair Competition under California Business & Professions Code § 17200 against all defendants; (5) violation of the Truth in Lending Act (―TILA‖), 15 U.S.C. § 1641(g) against U.S. Bank;(6) Accounting against Wells Fargo and U.S. Bank; (7) Constructive trust against Wells Fargo and U.S. Bank; (8) Wrongful foreclosure seeking to set aside Trustee’s Sale against all defendants; (9) To void or cancel trustee’s deed upon sale against U.S. Bank and First American; and (10) Quiet Title against U.S. Bank and Wells Fargo.”

    The court denied the dismissal for all (including quiet title, wrongful foreclosure ect) except declaratory relief and accounting and said it had jurisdiction to decide the state law claims because pendent on the TILA, 15 U.S.C. § 1641(g). claim.

    Here is another very recent CA federal case where the judge cites the the case above:

    http://dtc-systems.net/2012/03/action-survive-motion-dismiss-california-federal-case-bank-america/

  15. Dear Joann:
    The quote you excerpted below (everything I have written below) is STATE law. UCC is a state imposed set of statutes and obviously real property law is STATE. Unless you have a significant federal statute that is important to your case you will do much better filing in state court. The catch on that is that you need one of the defendants to be or claim to be located in your state, or they can remove on diversity. Even then, however, if the core of an action deals with important state law considerations, the federal court may remand to state court. See, e.g., Forde v. First Horizon et al. AN ARIZONA CASE.
    Excerpt:
    The Court concludes judicial economy, fairness, comity,the existence of novelissues under Arizona law, and thenecessity for the Court to interpret Arizonastate statutes weigh heavily in favor of the Court declining jurisdiction overthis matter. Remand at this time will reduce litigation costs and eliminate anyneed to certify novel state-law issues to the Arizona Supreme Court orspeculate how the Arizona Supreme Court would rule on those issues.
    You can navigagte to the full Order via:
    http://www.scribd.com/doc/45494397/CASE-FILE-Arizona-Quiet-Title-REMOVAL-REMAND-and-Commentary-Forde-v-First-Horizon-Home-Loan

  16. @needcaselaw

    “But there is a single principle that the court dances around in all these cases without stopping to define it: it is the question what is necessary to enforce a deed of trust or mortgage.”

    “There is simply no way that they can fulfill the statutory definition of a “Beneficiary” of a deed of trust, having no interest whatsoever in the debt which the DOT secures.”

    Just think that this is root and heart of it. Without considering tactics or how to say it to a court, it is plain common sense, it is justice and it is the law. The delinquency of the homeowner is beside the point. They do not owe a non-beneficiary and a non-beneficiary has no right to seize a home. It has nothing to do with trying to get a free house. In honoring or dishonoring an obligation the parties to the obligation must be clearly identifiable and their interest verifiable.

  17. Thank you needcaselaw and zurenarrh for your experience, discussion, materials, links and insight. I am thinking of filing a complaint directly in federal court pro se (because statatory penalites are due and other claims can be pendant in that jurisdiction according to some other recent rulings in my state and because better rulings are now occurring at that level than in the local and state courts in my non judiicial state). I have no idea if my thinking is sound and perhaps at the end of the day it is intuition (after research and rational consideration of details and cases) that guides a person. Very scary but a person can only do the best they can and hope for the best. I also think these rulings that “the sky is red” will come back to haunt judges one day. Even if homeowner is tragically undermined in a ruling it is better to have proffered that case than not. It is a service to all Americans. I may not be able to do this but am hoping that I can. I would like to do it even if hopeless.

  18. Joann:
    Regarding the Twombly case and pleading – I should have added that the example from the MTD below is typical in misinterpreting the cases cited. Read ‘em – just Google, as they are standards. The REASON the court takes the approach that the Complaint must offer some identifiable parties, specifics and legal theory why that’s wrong is to prevent suits being filed on speculation. The banks’ high level of secrecy is part of this. To this day I have no idea who owns the note (if anyone at this point) involved in my case, so how can I name them – or affirm that the conspirators did something with it, like sold it three times and then destroyed it. If my case can ONLY be established following discovery then I haven’t got a case in the lens of Twombly; but if there is enough documented hanky panky suggesting the law has been broken to justify discovery I can at least bring it to trial. An interesting article titled Pleading Standards After Twombly can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=995592

    Zurenarrh:
    We’re all learning as we go along, and sometimes our painful lessons can be helpful to others. Thanks for sharing yours.

  19. needcaselaw,
    Sorry for being on edge. It really wasn’t specifically your comments about pleadings–for some time, there has been an ongoing undercurrent here on the site that if only we could say just the right things in our pleadings and briefs, we’d win and that the reason we don’t win is because our pleadings and briefs are deficient somehow.
    And yes, I’m particularly sensitive to it because in my case, the judge agreed with me and then ruled in favor of the Defendants (I’m the Plaintiff–non-judicial) anyway. I’ve used this analogy before, but it’s as though I said “The sky is blue.” And the judge said “I agree, the sky is blue.” The Defendants say “The sky is red.” The judge then says “Judgment for the Defendant!” WTF?

    The point is, at least in my case, is that it didn’t matter what I said. It didn’t matter that the judge even agreed with me. Hell, he had no choice but to agree with me because all I did was point out what the law is. But then he ruled against me anyway. That’s why I say that of course you want to have the best pleadings you can possibly put together, but at the end of the day, the judge is going to do what the judge is going to do regardless of what anyone’s pleadings/briefs say. And what most judges seem to want to do is penalize homeowners and reward the TBTF banks.

    Again, I totally agree with everything you’re saying and I’m glad you’re sharing it. Really the whole thing about deficient pleadings has been on my mind for a while and seeing your comment about pleading and having some free time for a change, I decided to chime in.

  20. Hi Joann:
    Here is the text from a recent motion to dismiss, filed immediately after case was removed to federal court. I presume it is pretty much boilerplate as to what they’ll throw at anyone. By the way, the case was not dismissed as there was enough meat in the pleading to send it to trial – however I believe the bank bought off the plaintiff including his silence before that ever happened.

    This Action Must Be Dismissed Pursuant FRCP 12(b)(6) Because Plaintiff’s Complaint Fails To Meet The Federal Pleading Standard Enumerated In Twombly And Iqbal.
    FRCP 12(b)(6) provides that a party may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” A properly pled complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). While FRCP 8
    does not require detailed factual recitations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, U.S. , 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, plaintiffs must plead more than “just ultimatefacts … but evidentiary facts which, if true, will prove [their claims].” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (Emphasis added). To survive a motion to dismiss, acomplaint must, therefore, include “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
    In Iqbal, the Supreme Court recently clarified the two-step approach district courts are to apply when considering motions to dismiss. First, the Court must accept as true all well-pled factual allegations in the complaint; however legal conclusions are not entitled to the assumption of truth. Iqbal, 129 S. Ct. at 1950. Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id. at 1949. Second, the Court must consider whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where the complaint does not permit the court to infer more than the mere possibility of misconduct, the complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. “When the claims in a complaint have not crossed the line from conceivable to plausible, plaintiff’s complaint must be dismissed.” Twombly, 550 U.S. at 570.
    Here, Plaintiff has done nothing more than recite the elements of each of his claims with conclusory statements rather than well-pled factual allegations. Plaintiff does not plead any specific facts as to any defective, false or unfair acts and practices by Defendants. In the absence of any facts to suggest even the mere possibility that the Defendants engaged in misconduct, let alone to allege a plausible claim for relief, Plaintiff’s complaint is insufficient to survive this motion and all of his claims must be dismissed with prejudice.

  21. needcaselaw

    Thank you for your posts today.

    “In most state courts they want a short, succinct statement of what happened and the legal theory to back it up; but that may not survive in federal court: the pleading standards are different.”

    How are the pleading standards different in federal court?

  22. zurenarrh:
    Sorry if I touched a nerve. As my handle here might indicate I’ve been studying a lot of case law. Yes, there are judges where if you borrowed the money they don’t care whether the party trying to collect it has any legal right to – they’re blind from that point on. However I’ve also seen numerous cases where the court issues a very hedged opinion, in effect saying that the way the case has been pleaded – with what they’ve been given to work with – they have no choice to make this decision. Even though a valid charge may have been available, it wasn’t pled, and the court basically has to work with what is presented by the two sides. I think all any of us can do is put forward the best case we can.
    If you’re the one suing, I do know that part of the tactic of the banks is to immediately remove the matter to federal court. In most state courts they want a short, succinct statement of what happened and the legal theory to back it up; but that may not survive in federal court: the pleading standards are different. All in all it’s a really good idea to have a lawyer if you can afford it.

  23. @needcaselaw,
    Spot-on analysis, from my non-lawyer point of view. Pleadings are important, but can be completely ignored by the esteemed judges no matter how well-argued or well-documented they are. I recently found this out firsthand.

    We cannot keep blaming ourselves–i.e., that somehow we and our pleadings are deficient. Our pleadings are adequate, even brilliant in some cases. It is the judges and their personal prejudices or personal finances that are the problem, not our pleadings. Pleadings are important, but only to a point. Not every lawyer or pro se can be or has to be Clarence Darrow or some super-lawyer/litigant to get the proper results. Just like every judge does not have to be King Solomon to be able to rule correctly. There’s no magic to any of this. There are no incantations that only lawyers or only certain lawyers know that will magically produce the correct results.

    Not intending to cast aspersions on you, needcaselaw. This meme of inadequate pleadings has been haunting the discussions on Living Lies for a while, and I think it’s unhelpful to try to attribute our collective lack of success to supposedly inadequate pleadings. I think the analysis you provided below was right on. I guess if there were “magic words” you could use, the ones you used are them. But as I’ve been told repeatedly, judges can and will do what they want, regardless of pleadings or evidence.

  24. I don’t know how successful a credit bid would be in Oklahoma. Beginning bids at sale are started at no less than 2/3 of the appraised value.

  25. Dear Hman
    As noted below there were actually 8 victories in the Oklahoma Supreme Court (one published so far), and one failure. A brief summary of all can be read at http://law.justia.com/cases/oklahoma/supreme-court/
    You’re on the right track in working on the legal points to present in your Arizona case. As you will see in the summaries available above, it’s not that there’s a magic bullet; pleading is about 9/10ths of the battle. But there is a single principle that the court dances around in all these cases without stopping to define it: it is the question what is necessary to enforce a deed of trust or mortgage.
    That question, and your MERS questions are currently before the Washington Supreme Court, and MERS has to lose. There is simply no way that they can fulfill the statutory definition of a “Beneficiary” of a deed of trust, having no interest whatsoever in the debt which the DOT secures. I believe the reason that MERS survived in Arizona was because of pleading and vagueness in the deed of trust statutory scheme, not that the principles of law don’t exist there. Thus, scan the Arizona statutes for what is required. There is probably something there that is rougly equivalent to Washington and that classic citation regarding the “security follows the note.” Because that principle is nearly universal. One needs to pull out your state’s version of the UCC, because that sets the rules on how notes (negotiable instruments) get from place to place. They must do so by TRANSFER. This is a UCC statutorily defined term AND PART OF YOUR NOTE. Look at page 1 of your note. You will find the wording: “anyone who takes this note by transfer and is entitled to receive payments under this note is called the “Note Holder.” Note, Pg. 1, ¶1. By the terms of the Note itself, MERS cannot be a “Note Holder” – they have not taken the Note by “transfer” and they are not entitled to receive payments thereunder.
    “Note Holder” is also a statutorily defined term, and one must be one in order to enforce a note. Enforcement of a note requires physical POSESSION of the instrument, and that requires TRANSFER (“assignment of beneficial interest” is not sufficient – see the Oklahoma cases; that’s just informational, not a legal transfer). Here are the UCC statutes in Washington:
    (a) RCW 62A.3-201 (negotiation defined),
    (b) 62A.3-203 (transfer defined),
    (c) “Subsection (a) [of RCW 62A.3-203] defines transfer by limiting it to cases in which possession of the instrument is delivered for the purpose of giving to the person receiving delivery the right to enforce the instrument.” UCC §3-203, Comment 1.
    You’ll also observe that the definition of “Note Holder” in your Note is virtually identical to that appearing in Blacks Law Dictionary.
    MERS is and always has pitched that they have the right to enforce a deed of trust independent of who may “hold” the note it secures. I’m not an attorney, but it would appear that their Achilles heel would be found in what a deed of trust IS – that without the instrument it secures and the laws governing who may enforce such an instrument, it is sound and fury signifying nothing. In all the Oklahoma cases the Court would appear to agree.

  26. Assignment of Mortgage
    Endorsement
    Purchase encumbrance

  27. http://www.oscn.net/applications/oscn/deliverdocument.asp?cite=2012+OK+3

    This is the ONLY OK Supreme Court Case published (can be cited) to date.

    The others are still unpublished and subject to modification and/or revokation as of this writing.

  28. Yes it was OK. Go figure!

  29. Was not Oklahoma the only state to not sign onto AG settlement?? Because they thought it was too “hard on the banks.???

    Was it Oklahoma???

  30. OK — now ask — why separated??? A reason.

  31. Arrests? Did i really read “arrests”? Is it really at the bottom of the article? Man, what a day! And it isn’t even my birthday!

    http://money.cnn.com/2012/04/24/news/companies/mf-global/

    $1.6 billion in missing MF Global funds traced

    By James O’Toole @CNNMoney April 24, 2012: 6:49 PM ET

    Terry Duffy, the head of exchange operator CME Group, testifies about the collapse of MF Global on Capitol Hill Tuesday.

    NEW YORK (CNNMoney) — Investigators probing the collapse of bankrupt brokerage MF Global said Tuesday that they have located the $1.6 billion in customer money that had gone missing from the firm.

    But just how much of those funds can be returned to the firm’s clients, and who will be held responsible for their misappropriation, remains to be seen.

    PrintComment
    James Giddens, the trustee overseeing the liquidation of MF Global Inc, told the Senate Banking Committee on Tuesday that his team’s analysis of how the money went missing “is substantially concluded.”

    “We can trace where the cash and securities in the firm went, and that we’ve done,” Giddens said.

    MF Global failed last year after its disclosure of billions of dollars worth of bets on risky European debt sparked a panic among investors. About $105 billion in cash left the firm in its last week, Giddens said, as clients withdrew their funds and trading partners called for increased margin payments, leaving the firm scrambling to make good on its obligations.

    It has since emerged that MF Global tapped customer funds for its own use during this crisis and failed to replace them, in violation of industry rules.

    Roughly $700 million of the missing money is now locked up with MF Global’s subsidiary in the United Kingdom, where Giddens and his team are engaged in litigation to have it returned to U.S. customers. Giddens said he is “reasonably confident” that these funds will be recovered, though he added that it will be a lengthy process with no guarantee of success.

    Another $220 million was transferred inadvertently from the accounts of securities customers to those of commodities customers. That money is now in limbo amid a dispute over which customers it belongs to, said Kent Jarrell, a spokesman for Giddens.

    The final $680 million or so was transferred to other financial institutions with which MF Global did business, including a substantial portion that went to JPMorgan (JPM, Fortune 500).

    Giddens said his team has “a solid basis for seeking the recovery of some of the funds that were transferred to JPMorgan,” and is engaged in ongoing talks on the issue. JPMorgan did not immediately return a request for comment.

    Sorting through the MF Global debacle
    Giddens’ team is just one among a number of groups probing MF Global’s collapse. There’s also Louis Freeh, the trustee for MF Global’s parent company, as well as the Department of Justice and federal regulators including the Securities and Exchange Commission and the Commodity Futures Trading Commission.

    Jill Sommers, a commissioner with the CFTC, told the hearing Tuesday that she could not disclose details of the commission’s investigation, but said the case could lead to enforcement actions against the company or the individuals involved.

    The SEC and CFTC can only seek civil penalties and restitution for customers, but their findings could help form the basis of a criminal case brought by the Justice Department.

    Giddens, for his part, has said he may file civil claims against MF Global executives alleging breach of fiduciary duties and violations of federal law governing commodities trading. A person familiar with the trustee’s probe said Jon Corzine, a former U.S. senator and Democratic governor from New Jersey who was CEO of MF Global when it collapsed, is among those against whom Giddens is considering action.

    So far, most of MF Global’s thousands of former customers have recovered about 70% of their money, while those that traded on foreign exchanges are missing nearly all of it.

    On Tuesday, a bankruptcy judge in Manhattan authorized an additional distribution of $685 million that will bring most customers up to around 80% of what they’re owed. Six months after the firm’s failure, however, they’re still waiting for someone to be held accountable.

    “Crimes have been committed here without a doubt,” said James Koutoulas, an attorney and trader who has been advocating on behalf of MF Global customers.

    “We think there are enough facts out here to start arresting people and start filing charges.”

  32. GO GREEN- RECYCLE CONGRESS IN 2012 ! ! !

  33. Thanks everyone for your help. Much appreciated. Got some new ideas. I needed some ideas how to stop them.

    The servicer is the one trying to forclose on me. They are using the veil of MERs to do this. The person who signed on behalf of MERs is an employee of the servicer. I have verified this through the CO secretary of state company lookup. She is listed as one of the Directors of the Servicer. I have requested a certified copy from them showing her as an officer of the servicer.

    So essentially the servicer is using it’s MERS signing authority to assign the mortgage from the defunct lender to the servicer. How can a servicer sign on behalf of a defunct lender?

    My “lender” was shut down in 2009 for not renewing a bond and not filing annual reports it was not BK related.

    I guess a more specific question is “Who is giving MERS authority to act on behalf of the defunct lenders interest?” What legally authority does a servicer/MERS officer have to assign the DOT?

    Lender no longer licensed to conduct business in AZ. True I gave MERS authority to act on behalf of the lender at the time of DOT. I agreeded to their “nominee” status. However, this authority would have been revoked/terminated (whatever) when the lender went defunct. By MERS own admission they only maintain records and take no action. WTF?

    If anyone has any other knowledge of laws, statutes, etc…this violates please share. I want to crush them and their lies. Thank you all again.

  34. Tinkled pink! More good news. Everybody is getting pissed at everybody else (who owns a couple of bucks… in taxpayers’ name…) AND it highlights “US investors’ complacency”! I love it.

    http://www.nakedcapitalism.com/2012/04/uk-fund-manager-challenges-deutsche-bank-on-executive-pay.html

    Tuesday, April 24, 2012
    UK Fund Manager Challenges Deutsche Bank on Executive Pay

    It’s taken a few years, but the revolt against extractive pay in banking is getting traction.

    The UK fund manager Hermes* is leading a charge against the pillar of the German establishment, Deutsche Bank, over compensation and succession planning. Hermes, which is leading 27 funds that hold only 0.5% of the votes, is urging other shareholders to vote no on the annual resolution approving the supervisory board’s performance for the past year. A bit of background per the Financial Times:

    The investor group is particularly angry that Europe’s ­largest bank by assets did not give shareholders the opportunity to vote on its remuneration report for last year. The bank’s move followed a rejection by 42 per cent of shareholders of the pay system the year before, the second worst voting result on such a matter in the German blue-chip Dax index. The bank has put the vote on executive pay back on to the agenda for the AGM.

    Now this might seem as if this measure is getting headlines by virtue of coming right after the shareholder rejection of Vikram Pandit’s $15 million pay package, but the Hermes move is significant in its own right. The UK investor has made itself a force to be reckoned with in Germany, having launched a proxy fight against Dax 30 company Infineon.

    The Hermes move raises a broader question about US investor complacency. We’ve commented repeatedly on how mortgage bond investors are standing pat as the mortgage settlement explicitly will reverse the established creditor hierarchy and impose losses on first mortgage investors when second mortgages should be wiped out before that happens. Of course, the problem is that these “investors” are really agents, and can’t be bothered to expend the energy to fight for their clients.

    Even though some major institutional investors, most notably Calpers, have take up the interventionist role in the US, they’ve become much tamer in recent years, perhaps because creeping corpocracy has become accepted as normal. The success of a firm like Hermes in punching above its weight should give US activists pause. There’s a lot of looting going on, and it might behoove them to take note of it.
    __________
    * Hermes is also a firm of good taste, since it supported NC in our fundraiser.

  35. One more summery judgment denied. Small step ahead. What do you want to bet the bank ain’t gona go all the way to trial and will try to settle?

    http://foreclosuredefensenationwide.com/

    SUMMARY JUDGMENT DEFEATED FOR A THIRD TIME IN IOWA; PRAISES FOR FDN FORECLOSURE DEFENSE SEMINAR
    April 23, 2012

    April 23, 2012

    For a third time, an Iowa District Court has denied summary judgment to the “foreclosing Plaintiff”, which began with Wells Fargo back in 2005 but changed, in 2011, to US Bank as “trustee” of a securitized mortgage loan trust. For those who have followed this case, Wells Fargo’s second summary judgment request was denied on July 6, 2011. Jeff Barnes, Esq. and local Iowa counsel Christine Sand, Esq. represent the homeowner.

    The Court’s five page Order sets forth that the Plaintiff (now US Bank as “trustee”) “fails here for two independant reasons”. First, the Plaintiff failed to show Wells Fargo’s entitlement to the instrument when the admitted loss of possession of the Note occurred, which conclusion was reached at the July 6, 2011 summary judgment hearing. The Court found that the Plaintiff simply asked the Court to reach a different conclusion now based on essentially identical facts which were presented at the prior summary judgment hearing.

    Second, the Court found that the Plaintiff failed to show the nonexistence of a genuine issue of material fact as to what happened to the original Note. Plaintiff’s Affiant Erin Roesch only states that she “learned” of the loss without further explanation, with such “learning” being based on second-hand information. The Court found that the Affidavit failed to comply with Iowa Statute 554-3309 as the Affidavit was not based on peersonal knowledge and was otherwise deficient in several respects.

    The matter will now proceed to trial.

    Separately, the forclosure defense seminar last Friday, April 20 attracted participants from Florida, California, and Nevada, all of whom have sent extremely complimentary e-mails praising the event and stating that they acquired an enormous amount of knowledge. The next seminar is being planned to take place in south Florida in late June, with another seminar to be scheduled in California some time in July.

    Jeff Barnes, Esq., http://www.ForeclosureDefenseNationwide.com

  36. Spring is here! Spring is here! Clean up time!

    http://au.news.yahoo.com/thewest/a/-/world/13515541/murdoch-ties-with-govt-revealed/

    Murdoch ties with govt revealed

    Tom Wald, AAP London Correspondent, AAP
    April 25, 2012, 2:54 am tweet0EmailPrint
    David Cameron’s government faces fresh scrutiny for its cosy relationship with Rupert Murdoch’s media empire following a day of revelations at the Leveson inquiry.

    Critics have for decades accused the Murdochs of holding too much sway over British politics.

    Those fears have only been heightened in recent times by the close ties between British Prime Minister Cameron and controversial past and present Murdoch employees such as former spin doctor Andy Coulson and newspaper executive Rebekah Brooks.

    James Murdoch said under oath on Tuesday that he had met Mr Cameron a dozen times when he was leader of the opposition and twice as Prime Minister.

    The News Corp deputy chief operating officer revealed he twice made contact with Tony Blair as PM and had two meetings with Gordon Brown during Mr Brown’s time in charge.

    Mr Murdoch confirmed he briefly discussed News Corp’s proposed takeover of BSkyB with Mr Cameron at a Christmas dinner in 2010 at Ms Brooks’ home.

    In potentially more damaging disclosures during Mr Murdoch’s day-long grilling at the inquiry into press ethics, evidence was provided that Culture Secretary Jeremy Hunt’s office privately briefed Murdoch executives about the BSkyB bid on a regular basis.

    News Corp provided the inquiry with 163 pages of internal correspondence from senior executive Frederic Michel, who was in close contact with Mr Hunt’s office for more than a year.

    Counsel for the inquiry, Robert Jay described Mr Hunt as “your cheerleader” to which Mr Murdoch replied: “I think that’s unfair.”

    Mr Hunt was put in charge of the BSkyB bid after Business Secretary Vince Cable was relieved of the duties for telling two young undercover female reporters that he had “declared war” on News Corp supremo Rupert Murdoch.

    Mr Hunt intended to give the deal the go-ahead but Mr Murdoch abandoned it last year in the fall-out from the phone hacking scandal at the News of the World.

    Murdoch senior is due to face the inquiry, which has shifted its focus towards the relationship between the press and politicians, on Wednesday and Thursday at the Royal Courts of Justice.

    Despite the inquiry changing tack, Tuesday had still expected to centre on James Murdoch’s role in the phone-hacking scandal that led to the News of the World’s closure and him stepping down as chairman of News International and BSkyB.

    However after standing by his testimony made to a parliamentary committee last year that he was kept in the dark over the extent of hacking at the Sunday tabloid, the questioning of Mr Murdoch became more interesting.

    His brief chat on December 2010 about BSkyB with Mr Cameron came two days after Mr Cable was stripped of his responsibility for overseeing the bid.

    “There was no discussion with Mr Cameron other than. . . he reiterated what he had said publicly which was that (Cable’s) behaviour had been unacceptable and I imagine that I expressed a hope that things would be dealt with in a way that was appropriate and judicial,” Mr Murdoch said.

    “Our only concern during this period was that the correct and appropriate legal test was applied to this transaction and I would have said it to anyone who would listen.

    “But it was a tiny side conversation ahead of a dinner … it wasn’t really a discussion.”

    Mr Cameron’s aides previously denied the issue was raised while the PM said he had never had an “inappropriate conversation” about the bid.

    Mr Murdoch said it was “absolutely not the case” that he expected News Corp’s interests to be helped by its support for politicians.

    “I simply would not do business that way,” he said.

    The emails by Mr Michel, News Corp’s head of public affairs, suggested a healthy working relationship with the government.

    One said that Mr Michel had a note from Mr Hunt’s adviser, Adam Smith, that “the UK government would be supportive throughout the process”.

    In another email, Mr Michel said “He (Hunt) wants us to take the heat with him in the next two weeks”.

    An email on 24 January 2011 said Mr Michel had managed to get some info on Mr Hunt’s plans for the following day “although absolutely illegal”.

    Mr Murdoch said the email had been a “joke”, that liaising between the offices was “acceptable and part of the process” and that he never felt comfortable a deal would be done.

    He said the diversity of modern media meant media moguls no longer had the power they once enjoyed.

    “There’s the very old-fashioned view of big media proprietors being able to dominate the landscape.

    “I just think that’s not the case anymore.”

  37. Global mansoni financial trustee said the Man’s executives should not get bonuses

    Posted On Tuesday, 24 Apr 2012 By admin. Under Market Watch Tags: Global mansoni financial trustee said the Man’s executives should not get bonuses The evening of April 24, the trustee of a bankrupt broker Global Man Financial Inc. (MF Global Inc.) Louis Freeh (Louis Freeh) Tuesday on the Senate Banking Committee testimony, Freeport refutes the report of one of the company’s three executives should get bonuses.

    Fremont on the Senate Banking Committee, said: “I and my staff did not discuss the issue of executive bonuses, and whether past or present, the prize is not what we consider”

    March, a report said Fremont plans to request the bankruptcy judge approved the agreement of employees, including the payment of performance-based bonuses to executives.

    Freeh told the Senate Banking Committee, and his plan to the company’s 15 internal employees to provide competitive salaries. (Yi Song)

  38. http://www.cnbc.com/id/47156287

    BRIEF-Brookwater announces resignation of CFO
    Published: Tuesday, 24 Apr 2012 | 8:29 AM ET Text Size Twitter

    April 24 (Reuters) – Brookwater Ventures Inc :

    * Announces resignation of chief financial officer

    * Announces the departure of Darren Moulds from his position as chief financial

    officer of Brookwater

    * Says announces the departure of Darren Moulds from his position as chief

    financial officer

  39. http://www.bseindia.com/stockinfo/ann.aspx

    On that site, you have a slew of resignations effective now. Probably not accounted for in the 611 listed by Kabuki. It is moving.

    How exciting!!!!!!!

  40. Creval – Credito Valtellinese S.p.A.

    04/24/2012 | Press release

    04.24.2012 – Credito Artigiano: resignation of the chairman of the board of statutory auditors
    Font size: increase Font size: decrease Print Share by e-mail wired by noodls on 04/24/2012 10:55

    Milan, 23 April 2012 – Prof. Gabriele Villa, Chairman of the Board of Statutory Auditors resigned on 20 April 2012.
    The resignation is motivated by the need to comply with the provisions of Article 36 of Italian Decree-Law of 6 December 2011, converted into law no. 214 of 22 December 2011, which does not allow “office holders in management and supervisory bodies and top executives of companies or groups of companies operating in credit, insurance and financial markets to take up or hold similar positions or offices in competing companies or group of companies”.

    Company contacts

    Investor relations
    telephone 02 80637471
    E-mail: investorrelations@creval.it
    Media relations
    telephone 02 80637403
    E-mail: mediarelations@creval.it

    http://www.noodls.com/viewNoodl/14059711/creval—credito-valtellinese-spa/04242012—credito-artigiano-resignation-of-the-chairman-

  41. We don’t live in a vacuum. Today is very rich in worthy news. I’m going to post them. Things are moving.

    Vladimir Putin quits as head of Russia’s ruling party
    Related articles .. link .. New Global Currency ~ April 2011 ~ Russia Calls For New Global Economic

    http://goingglobaleastmeetswest.blogspot.com/

  42. Here’s a link to the list of OK cases from and interesting source (title co bulletin re underwriting):

    http://www.vuwriter.com/vubulletins.jsp?displaykey=BL133368894600000002

  43. @hman

    “on what legal grounds can a 3rd party (servicer, mers) transfer the DOT that the lender has defaulted on & still claim an interest?”

    Good question. Question works for judicial too it seems to me.

    I think the answer is there are no legal grounds (in addition to the fact that the original “lender” sold the mortgage and was paid in full years ago and may not have been the party who advanced the funds in the first place or any funds at all as in Anonymous).

    Just how to make that point in court and have it hold up….anyone?

  44. hman- if your lender is defunct, then they have not paid their MERS membership. And through MERS or otherwise, one cannot transact business of any type with a defunct business. Except in BK court, where the defunct business is on life support so to speak. Who signed on behalf of the defunct lender? When did they become defunct? You cannot bring an action on behalf of an out-of-business entity.
    There are still foreclosures brought in the name of Option One Mortgage, out of business in 08. But who is complaining? No one. And if caught, they default to Sand Canyon Corp, which was set up to handle OOMC litigation only. But most people don’t know that. Just like most people, attys included, don’t know 1% of what we read here.

  45. @Hman,

    I am in a judicial state and we don’t have any DOT. Further, a couple of cases came down a few months ago whereby MERS, not being the payee on the mortgage note, does not have authority to transfer/assign it. I was too happy to jump on it and out of the MERS controversy. So I am not the right person to answer your question. Really sorry about that.

  46. TNharry, Enraged, Anon, John Gault and everyone else with insight. Please answer if you have a moment it would be appreciated.

    When a DOT is recorded and it remains in a Defunct Lenders name that has been found in default on what legal grounds can a 3rd party (servicer, mers) transfer the DOT that the lender has defaulted on & still claim an interest?

    I’m in AZ. Case law and State statutes have determined multiple times that the Deed follows the note “authomatically”. Deed not negotiable. Note is.

    I signed a MERs DOT that I don’t deny. Also, AZ has upheld MERS is “legitimate” beneficiary. I “agreed to MERs when I signed my DOT.

    My question is if there was a Lis Pendens filed and the DOT was already in question how can the servicer/mers claim a “breach of contract occured”? The servicer is claiming that a breach of contract occured (for non payment) and they reference the DOT recorded.

    I don’t know if it is required if a DOT is required to be recorded in AZ prior to a Trustee sale, but I think this point would be irrelavant because they did it. So, I think what they would have to do is re submit and back date the assignment. Which I’m sure will happen soon.

    My research has shown that MERS is only a “data base to maintain loan information”. It does not take action by iteself. It doesn’t make much sense that a MERS officer can act on behalf of a defunct lender especially when they are in the middle of a lawsuit but this is what is being done?

    Any thoughts would be appreciated.

  47. tnharry- did you see Dilbert today? unbelievable!

  48. I agree with the “useless fluff” comments and though this firm cites its presence in Minneapolis, MN I can pretty much guarantee it hasn’t been seeing any successful foreclosure defense there!

  49. no there’s not a link. a posting containing today’s Dilbert cartoon would have been more helpful…

  50. Is there a link to the OK case or the article that is mentioned? Thanks.

  51. what a useless fluff piece. why would you write an article making the statement “We were happy to learn that the Oklahoma Supreme Court decided 7 cases this month in favor of homeowners” and then neither discuss the specifics of the cases nor provide case cites? and furthermore, what value did Neil see in posting this without more specifics? from the way it’s written in a very generic, “dumbed-down” fashion, it looks like it might be a press release done by the law firm mentioned at the end.

    if it’s just meant to be a cheerleader piece, then i can understand the readers need some positive reinforcement occasionally. however, the bold statement of “another victory” coupled with the complete lack of facts renders it useless and suspect

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