Wake Up Georgia: Courts Are Opening the Door on Wrongful Foreclosure

PRACTICE AND PROCEDURE IN GEORGIA
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The selection of an attorney is an important decision  and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.

Editor’s Note: For years Georgia has been considered by most attorneys to be a “red” state that, along with states like Tennessee showed no mercy on borrowers because of the prejudgment that the foreclosure mess was the fault of borrowers. For years they have ignored the now obvious truth that the defective mortgages and wrongful foreclosures do make a difference.

Now, reflecting inquiries from Courts below who are studying the the issue instead of issuing orders based upon a knee-jerk response, the State has taken a decided turn toward the application of law over presumption and bias. There is even reason to believe that the door is open a crack for past wrongful  foreclosures, as the Courts grapple with the fact that thousands of foreclosures were forced through the system by strangers to the transaction and thousands of wrongful foreclosure suits have been dismissed because of the assumption by judges that no bank would lie directly to the court. It was a big lie and apparently the banks were right in thinking there was little risk to them.

Look at Pratt’s Journal of Bankruptcy Law February/ March Issue for an article on “Foreclosure Law in the Wake of Recent Decisions on Residential Mortgage Loans: The Situation in Georgia” by Ashby Kent Fox, Shea Sullivan and Amanda Wilson. Our own lawyers have out in front on these issues for a couple of years but encountering a lot of resistance — although lately they are reporting that the Courts are listening more closely.

The Georgia Supreme Court has now weighed in (Reese v Provident) and decided quite obviously that something is rotten in Georgia. Focusing on Georgia’s foreclosure notice statute but actually speaking to the substantive defects in the mortgages and foreclosures, the majority held, as a matter of law, that

o.c.G.a. § 44-14- 162.2(a), requires the person or entity conducting a non-judicial foreclosure of a residential mortgage loan to provide the borrower/debtor with a written notice of the foreclosure sale that discloses not only “the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor” (the language that appears in the statute), but also the identity of the “secured creditor” (not required by the statutory language, but which the majority inferred based on legislative intent). the majority further found that the failure to identify the “secured creditor” in the foreclosure notice renders the notice, and any subsequent foreclosure sale, invalid as a matter of law.

Once again I caution litigators that this will not dispose of your case permanently and that such rulings be used strategically so that you are not another hallway lawyer explaining how you were right but the judge ruled against you anyway. Notice provisions can be cured, non-existent transactions cannot be cured. Leading with the numbers (the money trail” and THEN using decisions like this to corroborate your argument will get you a lot more traction than leading with defective paperwork.

As I have said repeatedly, no judge, no matter how sympathetic to borrowers is going to give much relief when the borrower has admitted the debt, note, mortgage and default. These must be denied and lawyers should study up on the subject as to why they can and should be denied, and to persevere through discovery to show that the note, mortgage, default and even the debt have all been faked by strangers to the transaction.

Forcing the opposing side to show that they are a bona fide holder FOR VALUE  will flush out the truth — that originator in nearly all cases was never the lender, creditor or even broker. They were simply paid naked nominees just like MERS, leaving no real party in interest on the note or mortgage, no consideration between the parties stated on the note and mortgage or notice of default, and no meeting of minds between the real lender (who is NOT in privity with the nominee lender) who, as an investor received a prospectus and Pooling and Servicing Agreement and advanced money under the mistaken belief they were buying bonds of an entity that either did not exist or was simply ignored by the investment banker and the other participants in the false securitization scheme that was used to cover-up a PONZI scheme.

Practice tips: DENY and DISCOVER. Ask for proof of payment and proof of loss. The assignments, the note and the mortgage are not proof of the debt, they are potentially evidence of the debt and the security agreement ONLY if the foundation is there (testimony by witness with personal knowledge, with exhibits of wire transfer receipts and wire transfer instructions, cancelled checks etc.) to show that the originator shown as payee and “Secured party” or “beneficiary” was lender of money.

Make them show that they booked the loan as a receivable with a reserve for default. Discover that they actually booked the transaction as a fee for service (shown on the income statement) and never entered it on their balance sheet.

And PLEASE study up on voir dire, objections and cross examination. If you are not quick and ready objections to leading questions and other issues might well be waived unless you interrupt the questioning as fast as you can stand up. If you study up on hearsay and the business records exception to hearsay you will discover that in practically no case were the business records qualified as exceptions to the hearsay rule. But if you don’t raise it, if you don’t have statutory and case law and even a memo on the subject the judge is going to rule against you. We are talking about good lawyering here and not bias amongst judges.

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32 Responses

  1. [...] Wake Up Georgia: Courts Are Opening the Door on Wrongful Foreclosure [...]

  2. Mr Scott Anderson messed with Grandma …. I had the kids recend the loan and Ocwen (the seller) assigned Mr Anderson to the take care of the situation …. ut ummmmmmmm. Grandpa n Grandma had many Cookies in their daughters Cookie Jar. No room for Buttwipes!!! *Grins* Home123, New Century … Ocwen as seller for owner US bank. Mr Anderson … a Man with Many Hats!

  3. Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that
    there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of
    reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three
    years.

  4. Judge Schack in New York appears to have identified these scams and actions as well. In one ruling, Judge
    Schack wrote:
    “The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths
    or if there is a more nefarious reason for this corporate togetherness,” he wrote, adding that HSBC would have to
    write an affidavit explaining the popularity of suite 100.”
    The reference to the location is actually Ocwen’s headquarters in West Palm Beach, Florida that Mr. Lavalle has
    visited and spoken to Ocwen executives and board members about these and other scams and frauds he had
    identified.
    On Jan. 30, 2008 in the Supreme Court, Kings County, New York in the case no. 15968/07 styled: HSBC BANK
    USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust
    2005-3, Renaissance Home Equity Loan Asset-Backed Notes, Series 2005-3,, Plaintiff, vs. Candida VALENTIN,
    Candide Ruiz, et. al., Defendants Judge Schack made the following observation in his ruling:
    “Additionally, plaintiff HSBC must address a third matter if it renews its application for an order of reference. As
    noted above, Scott Anderson, as Vice President of MERS, assigned the instant mortgage to HSBC on May 1,
    2007. Doris Chapman, the Notary Public, stated that on May 1, 2007, “personally appeared Scott Anderson, of
    1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.” In HSBC Bank, N.A. v. Cherry, at 3, I
    observed that:
    Scott Anderson, in his affidavit, executed on June 15, 2007, states he is Vice President of OCWEN. Yet, the
    same Scott Anderson as Vice President of MERS signs the June 13, 2007 assignment from MERS to HSBC.
    Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that
    there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of
    reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three
    years.
    Lastly, the court notes that Scott Anderson, in the MERS to HSBC assignment gave his address as Suite 100.
    This is also the address listed for HSBC in the assignment. In a foreclosure action that I decided on May 11,
    2007 (Deutsche Bank Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ), Deutsche Bank assigned the
    mortgage to MTGLQ Investors, L.P. I noted, at 4-5, that MTGLQ Investors, L.P.:”
    On April 25, 2008 in the Supreme Court, Kings County, New York in the case no. 39192/07 styled: DEUTSCHE
    BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF SOUNDVIEW
    HOME LOAN TRUST 2006 OPT2, ASSET-BACKED) CERTIFICATES, SERIES 2006-OPT2, Plaintiff, versus
    ELAINE GRANT, OPTION ONE MORTGAGE, CORPORATION, et. al., Defendants, Judge Schack made the
    following observation in his ruling:
    “However, my subsequent decision, HSBC Bank N.A. v Cherry, 18 Misc 3d 1 102 (A), issued on December 17,
    2007, observed that Scott Anderson, on June 13,2007, as Vice President of Mortgage Electronic Registration
    Systems, Inc. (MERS) assigned a mortgage and note to HSBC Bank, N.A., as Trustee for various collateralized
    debt obligations. Mr. Anderson’s assignment lists 1661 Worthington Road, Suite 100, West Palm Beach, Florida
    33409 (Suite 100), as MERS address. The assignment also lists Suite 100 as the “affidavit of merit” as “Senior
    Vice President of Residential Servicing for Ocwen Federal Bank, FSB, servicing agent of HSBC Bank, N.A.”

  5. Under stated APR on TIL by 1/8th on one percentage point is the legal thresh hold. RTC and Recission start from the date of proper/actual/truthful disclosure. How Healthy is you APR figure?

  6. Yes Ian, New Century … duel HUDS. YES! YES! YES! Who prepares the Final HUD? ______________________ You should also check out the ” Under stated APR” on TIL.

  7. Guest- NCM, New Century Mortgage? was well known for double-funded mortgages. When they did this, it had to be evidence that the ‘mortgage’ had been defaulted, collected upon, and written off. So they refi the homeowner with one settlement sheet, and send the other settlement sheet to Fannie/Freddie, always about 4 hours apart, for some reason. I have one of these, and they are both marked ‘Paid In Full’.
    I only got the proceeds from one. Don’t know who got the other money.

  8. @charles reed- way to keep plugging. But regarding DocX Lorraine Brown, she was charged with ‘over 1 million forgeries’. I think it should have been ‘over 50 million forgeries’. LPS, DocX parent corp., has 50% of US market for their fraud, I mean default services. So they had to have forged tens of millions of documents. And look at Lorraine Brown’s face- she doesn’t look like the CEO or anything, she looks like a low-level drug runner. Criminals always look like criminals.
    @neidermeir- I didn’t remember your tech background. Would you necessarily have an edge in digging more and more deeply, or hacking, into company databases/websites or whatever to get information?

  9. Oh Wait! There Motto was Hold the Truth and Hold the Facts! Thats It! I should go eat now. LOL!

  10. Hold the Pickles .. Hold the Lettuce… Special Orders Dont Upset Us…Pass the Buck and Have It Your Way at DU…. LPS and MERS.

  11. neidermeyer …. it was the in house tracking system.’ .. they named it MERS. DU and MERS….. Two Peas From the Same Pod! Yep!

  12. @neidermeyer, yes the DU system, manual input … the back up emergency system when the system fails. They Fit It To Fund!

  13. @GUEST ,

    I wasn’t one of those college kids , I had 25 years on them,, and more finance experience than many of the WF bosses at the regional processing center I was at… The house I’m in was originally a Fannie Mae FC when we bought it ,, I had a National City Mtg on it in 1998 which was replaced by Option One in 2007. That place (WFHM) was unbelievable ,, pre-processing apps (calling back storefront lenders to double check incomes .. and get them to come up on their numbers or reduce other customer outlays to get the percentages “right”) , finding errors to get them re-done and such. I had MERS with National City but no trace of it with O-One ,, maybe an in-house tracking system ..

  14. If they defaulted your loan and screwed up your deed, and kept the proceeds…… they would wade thru Hell and High Water to get those fc deeds and/or decieve you…. they would commit fraud after fraud and break the law over and over again. Imagine the ins co’s and the party on the other side of those CDS surprise when they found out that loans they paid out on years ago on a default …. is still a performing loan with another bank? Ut Oh!

  15. The Common denominater was MERS!

  16. The NCM loan went to Citi in 07. Citi filed NOD saying two of our payments were NSF (proved otherwise) as we were trying to sell the house. Put a stop on that Sale pretty darn fast!! And put us into another lawsuit against a buttwipe!! During that time …. CW tried their loan mod crap pretending to want to help us out on our new home… hahahaha

  17. neidermeyer, while you were still in collage (as was my daughters at that time) I was taking on National City Mortgage (now PNC). During a 02 refi NCM switched the terms of the agreement at closing (took place at CT). I caught it half way thru signing and refused to finish signing. So NCM prepared a new set and we continued signing (took 4hrs). Numskulls had both sets of closing docs in their system and we get NOD 3months later on one of them because they have two loans for us in their system. So we Sue……. What I didnt know way back then was what they had done to the title (MERS LP) ……. That came back ot bite us in the butt in 08 when we went to sell, Buttwipes!!

  18. @Stripes ,

    Some of us were there at the (almost) beginning ,, I worked for Wells Fargo Home Loan for a whopping 2 weeks in 2004 ,, until I started asking questions about this and that (total lack of oversight , passing things on through that weren’t even really looked at, you know the drill) ,, got fired ASAP .. They couldn’t have me around with my Series7 NASD credentials and background in tech ,, I was too dangerous for them (showed the big boss something on their mainframe CICS system that was useful but FAR above my pay grade) … I had taken the job through a temp agency and was part of a group of stupid “just out of college” kids … If I had played it right I would have been sitting pretty as a well paid whistle blower…

  19. I believe. Its going to be interesting because i too talk to many individuals from all walks of life the growing awareness of the crime and( it can be called nithing else but a crime against us citizens and beyond ) thst whrn truth is spoken it moves fast- like the ripples on the ocean.

  20. Everyone should have a basic understanding of the Law and their Legal Rights. We would not be here if we did. They would have never tried to get away with this scam. Imagine if everyone knew what to look for and knew how to check that the legal lien was recorded…? None of this would have happened.

  21. @Louise,

    So do I, Louise. Something about Jamie boy and his arrogance I can’t stomach… Plus, they are the biggest bank. They go down, everyone goes down.

  22. I feel a great shifting in the awareness of mortgage fraud and fraud on the court. It is starting to come out. This year, 2013, is going to be very interesting. I hope JP Morgan Chase is the first to go down.

  23. Hi Neil, I agree with trespass and you. Hope you like my newest video!

  24. Georgia is a mess with this Security Deed and this will be a battleground in the future for claims. I believe that since the education system does not seem to be that great but the advancement with blacks in the city of Atlanta the are allowing people here to be victimized buy the banks because one it embarrassing that so many blacks in this area were taken advantage by blacks subprime loan officers.

    Atlanta’s Mayor has been to busy running up to DC to be on the Sunday morning shows to showhis undying support for Obama. However the State took the Robo settlement monies and used it for some under purpose than restitution for victims.

    Let ask ourselves a question, if there was a $25 billion settlement for Robo saying the there were properties that were foreclosed do to the forging of assignments, but where are these homeowners that had there properties stolen due to the admitted crime by Docx that was located in Atlanta suburb.

    Lorraine Brown who is one of the Mayor’s citizen has admitted to a million foregries and she located in your town, but there been no action about a totally corrupt corporation and Atlanta has the worst foreclosure rate, and a forery ring running wild means what? It means your citizen were getting screwed.

    So at the end of the day here in Georgia your going to have a huge title issue as MERS is lested on everything, and I know for a fact as many government insured loans with all these veterans (VA) and FHA mortgage loans that were not attached to these properties!

  25. Not cool to suggest people who do not deal in legality have to study up to learn how to ‘fight’ in a court over a right they have that is being taken.

    I will not conform to that way of thinking. If I’m living my life in private, I should not have to learn a ‘public’ game just because some people have ill intent to steal.

    I will not conform to this way of thinking.
    You pull me into court there had better be a real reason or dispute, and in my capacity I would have solved any problem with my brothers and sisters, such that it would not have ended up in court.

    Trespass Unwanted, Corporeal, Life, Free and Independent State, Alive, In Being, In Jure Proprio, Jure Divino

  26. I need Legal Representation in Georgia!

    I am wishing to know what would be the most appropriate approach in obtaining legal assistance with regard of Mortgage Details Below:

    I wish to know if the legal approach would be use of a Real Estate/ Title Attorney or if this case might be

    Tort Litigation with regard of fraud and other criminal charges?

    Discovery Detail:

    My Husband and I Live in Georgia- a non-judicial state.

    In April 2006, my Husband and I refinanced our Mortgage with

    Accredited Home Lenders Inc.

    The Closing Attorney recorded in the Security Deed at Closing as a

    Georgia-Single Family – Fannie Mae/Freddie Mac Uniform Instrument

    With MERS (w Assigned MIN # attached to Security Deed )

    ***

    JP Morgan Chase stated in a QWR reply received this week that the

    Deed was recorded in MERS on

    10/20/2012, with the same number attached to the Security Deed at closing in 2006.

    Accredited DID NOT record an assignment.

    The note stated it WAS to be

    Recorded in MERS nominee for Accredited Home Lenders, Inc and it’s

    Successors.

    By August 2006 the servicing transitioned to Washington Mutual.

    The Servicer DID NOT record an Assignment.

    In September 2008, the servicing transitioned to JPMorgan Chase at the collapse of Washington Mutual

    On 10/10/2012 a Document was Signed and Assignment was recorded

    10/22/2012 in County Records Prepared by E.Lance

    - Nationwide Title Recording,

    Palm Harbor, Fla.

    (Recorded disposition confirms Rob-Signing by Bryan Bly at this same location)

    This Notarized Assignment was Notarized by Helen P. Tubbs,(Louisiana) for

    Melissa Riley Assist. Sec. For MERS

    On behalf of Accredited Home Lenders Inc. and it’s successors JPMorgan Chase f/k/a WAMU.

    Question- How could this assignment been recorded thru MERS with dates noted above by an Asst. Sec Mellissa Riley for MERS nominee for AHL and Successors, (Seems impossible-since AHL and WAMU have dissolved Bankruptcy cases in Federal Courts)

    with documents signed on 10/10/2012

    Recorded in the County on 10/22/2012

    And THEN JPMorgan Chase record a MERS

    Assignment on 10/20/2012??

    (As indicated in the QWR Response)

    Your Assistance and Review of the detail above might guide me to the most Appropriate Legal Experience

    Real Estate/Title – Clouded Title

    VS

    Tort – Fraud and other criminal charges.

    I might further note that I had tried for over 5 years to modify the Note w an 8.75 interest rate…beginning efforts with WAMA then Chase, I understand why this would have been impossible if the note had never Actually been recorded through MERS until

    OCT. 2012.

    JPMC did not provided Accounting & Servicing information in their QWR Response and reply Stating the information was Confidential or unavailable. JPMorgan Chase failed to provide any information in the QWR reply other than – they were “Servicer and Investor”

    My believe with exhaustive research guides that my loan was part of these REMIC RMBS-

    Accredited Mortgage Loan Trust 2006-2 (Issuing Entity) Asset-Backed Notes, Series 2006-2 Regional Trustee Services Corporation Merscorp, Inc., Mortgage Electronic Registration Systems, Inc. and Accredited Home Lenders, Inc. (Sponsor and Servicer) Accredited Mortgage Loan REIT Trust (Depositor) 0603273215 THE SERVICERS General Long Beach Mortgage Company will act as master servicer for all of the mortgage loans owned by the trust pursuant to the pooling agreement. Washington Mutual Bank will service the mortgage loans pursuant to a subservicing agreement between the master servicer and the servicer. Although the master servicer has delegated its servicing obligations relating to the mortgage loans in the trust to the servicer, it remains obligated under the pooling agreement and is required to enforce the obligations of the servicer under the subservicing agreement. See “Description of the SecuritiesDescription of Sub-servicing” in the prospectus. Washington Mutual Mortgage Securities Corp. will act as calculation agent and be responsible for calculating pay-off amounts for each monthly distribution on the certificates. The trustee will be responsible for calculating monthly distributions on the certificates, preparing monthly distribution reports and other functions, The trustee will have possession of the mortgage files as custodian for the trust.

    The Note May be part of this litigation (link below) where the REMIC Rules and PSA requires the note to be repurchased from the investor, otherwise JP Morgan Chase Held the note violating rules with respect of REMIC Classification. Deutsche Bank National Trust Company as Trustee for the Trusts listed in Exhibits 1-A and 1-B v. Federal Deposit Insurance Corp., JPMorgan Chase Bank, N.A. and Washington Mutual Mortgage Securities Corp., Case No. 1:09-CV-1656-RMC (D.D.C.) (co-lead counsel for plaintiff trusts)

    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/08/FIRST+AMENDED+COMPLAINT+DEUTSCHE+BANK+V+FDIC+AND+CHASE.pdf

    In January, JPMorgan Chase filed Foreclosure Proceedings the day 4 payments came due, might I Note that I was constantly coached that a Modification wasn’t possible until TWO payments were behind.

    We have a Foreclosure Date of

    APRIL 2nd 2013 .

    We have secured funds through a Hardship request to Re-Instate the Note, potentially avoiding foreclosure.

    We have reservation in forwarding funds ultimately funding an Obscured- Note/Possibly Clouded Title and Security Deed.

    Thank You in Advance, Your Opinion and Legal Direction is Kindly Appreciated.

    Kathy Lanning- 770-654-0845

    Lanningkl@icloud.com

  27. Great writing this week Neil. Many thanks.

    Update on the live Senate hearing on the London whale trade:

    Everyone’s pointing away from themselves. They all know absolutely nothing about the situation. They are all innocent and have done no wrong. No one can remember specific names of individuals who perpetrated the criminality. They are all disappointed that they were found ou….uhm…that things went horribly wrong.

    I guess it just really is a tempest in a teapot.

    http://sc.cnbc.com/applications/cnbc.com/static/livestream/windowsmedia.html

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