BOA Ordered to Pay $1 Million to Homeowner for Robo-Calls

For further information please call 520-405-1688 or 954-495-9867

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Just back from Orlando where I had a 4 hour trial scheduled for five minutes. Of course nobody except the court knew that. Needless to say the trip to Orlando was a bust. Neither counsel — Plaintiff and Defendant — was pleased. The system is badly in need of change. Now we are told that it might be 2016 until we get a judge who can give us 4 hours.

Meanwhile, the Orlando Sentinel reports that Florida is back to #1 in foreclosures, even though major “lenders” are giving people a “break” from wrongful foreclosures by not pursuing evictions during the holidays. see http://www.orlandosentinel.com/business/os-orlando-foreclosures-december-20141210-story.html

But in the meanwhile, BOA and Ocwen has been cited for not following the rules of the “settlements” that stopped criminal and civil prosecutions from the US Department of Justice. see BOA Fails tests: They still don’t care if the foreclosures are wrongful. Both BOA and Ocwen are citing computer problems as the cause of their multitude of violations. see mortgage-deal-monitor-ocwen-review-may-flawed-171850867–finance.html

MOST INTERESTING ABOUT THE OCWEN SITUATION IS THE ADMISSION THAT THEY GENERATED DEFAULT LETTERS WITH THE “WRONG DATE.” this is an admission that their computer was backdating documents “accidentally.” If that were true, where are the random mistakes  being made where homeowners didn’t get a letter or received a letter that was post-dated?

The fact is simple. The “banks” are pursuing foreclosure for reasons other than the loan, the note, the debt the mortgage or to mitigate damages. They are breaking the back of neighborhoods because they want the foreclosure judgment and sale. THAT is the only thing that MIGHT keep them out of hot water — i.e., the liability for refunds and buy-backs of loans that were entirely and fatally defective.

This also reveals how the parties pursuing foreclosure are NOT doing for the creditors (investors) but rather doing it for themselves to the detriment of both the creditors and the debtors. How many of those houses would still be occupied and paying taxes, paying a mortgage payment and keeping the neighborhood alive if a workout had been pursued in earnest?

BOA has been ordered to pay $1 million to a couple who received about 1,000 calls from a robo-calling center regarding their mortgage. This might wake up lawyers who are looking for a big payday. A lawyer who takes such a case on contingency need not litigate the merits of the mortgage or the foreclosure, but merely sue for violation of the fair debt collection laws. See CNBC: BOA Ordered to Pay $1 Million to Homeowner

More bad news for cities who built up infrastructure to accommodate all the new housing in the bubble caused by Wall Street. Experts who are conducting reviews and investigations for local government are all coming to the same conclusion: the only thing to do is demolish the homes that were foreclosed. This again leads to the as yet unanswered question: Why would REAL LENDERS pursue foreclosure on a home they don’t want, won’t keep or even sell? see http://www.wset.com/story/27646534/danville-council-hears-housing-study-findings

Tom Ice Wins Appeal To Supreme Court on Local Rules

See Tom Ice Wins His Point: Local Rules Deeming Motions “Abandoned” Are Not Valid

Tom has been getting into the murky world of what is agreed or known between Judges that administer foreclosure actions. One such problem is the local rule in some jurisdictions that certain motions are deemed abandoned regardless of what applicable legislation or Supreme Court Rules of Court provide.

Ice is pursuing an attack mode that is right on target. The underlying theme of his challenges is simple — a party should not be able to declare itself a lender or creditor and win a case that it would lose if the case was tried properly. One of the ways that homeowners have lost cases is the application of this rule that the Supreme Court has struck down. The court basically said “We make the rules and this is not our rule.” Local rules are allowed as to clerical functions but not substantive rulings on procedure or the merits.

Trial judges have “moved” their cases by applying rules like this that prevent the movant homeowner from requiring a ruling from the court. The judges under the cloak of apparent legality cite to the local rule that prevents the motion from being heard.

This is important because when cases go to trial, frequently the court has not heard several motions and if they are still “outstanding” the case is not ready for trial. So if the court goes forward with trial by “dismissing” the right to be heard on homeowner’s motions it is breaching the rules of court promulgated by the Florida Supreme Court and obviously due process requirements in the Florida and Federal Constitution.

 

My Apologies to Listeners of the Neil Garfield Show

The show was canceled at the last minute because of an unscheduled appointment I had with a kidney stone. I am fine now.

Wisconsin BKR Judge Orders Wells Fargo to Disgorge Payments It Received

For further information please call 954-495-9867 or 520-405-1688

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Hat tip to anonymous

The full case was 25 pages, I redacted to about 4 below, but very substantial topics and analysis on this similar to Rivera in full version.
– A win on recovery of mortgage payments made to Wells, $73,000.
– Loss on recovery of attorneys fee’s to Debtor, BUT, court stated these would be proper if circumstances met criteria, just not here, and
Very interesting analysis on return of note, which backs up your prior analysis; Note will not be returned to Debtor, as even though note is not enforceable by Wells or its servicers, real party in interest may show up at some point. Debtor also did not point to any prior case law that would require return of note.

I question whether the bankruptcy judge had the required jurisdiction to enter this order in all respects. But the analysis he presents is pretty much on target and once again Wells Fargo is shown to be making false statements and representations in court with virtual immunity even in this case.

Decision dated 10/21/14
http://stopforeclosurefraud.com/wp-content/uploads/2014/12/2014-10-21-In-Re-Thompson-.pdf

UNITED STATES BANKRUPTCY COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

In re Chapter 13 Dennis E. Thompson and Pamela A. Thompson, Case No. 05-28262-svk Debtors.

MEMORANDUM DECISION ON DEBTORS’ MOTIONS FOR CERTAIN RELIEF AGAINST WELLS FARGO

Since this case’s inception in 2005, it has been fraught with litigation, failed mediations, discovery disputes, accusations of attorney misconduct and otherwise tumultuous actions. In 2013, these proceedings eventually culminated in this Court’s disallowance of the proof of claim filed on behalf of Wells Fargo Bank after it was established that Wells Fargo was not the holder of the mortgage note underlying the claim. As a result, the pro se debtors filed a flurry of motions to effectuate the claim disallowance decision. This memorandum decision will hopefully end the litigation concerning the mortgage note, at least in the bankruptcy court………………

……..“On January 12, 2006, the Court confirmed the Debtors’ Chapter 13 plan. Under the plan, the Debtors proposed to make direct current mortgage payments and cure their pre-petition mortgage arrearage via payments to the trustee. On June 27, 2011, the Debtors filed a motion to enter into the Court’s mortgage modification mediation program with Litton. (Docket No. 142.) In preparation for the mortgage mediation, the Debtors hired an attorney and conducted a title search on their property. (Hearing Recording, Docket No. 164, at 10:53:15.) The title search revealed that Wells Fargo did not hold the title to their mortgage. (Id.) Mediation attempts with both Litton and Ocwen Loan Servicing, LLC4 (“Ocwen”), the current servicer for Wells Fargo, failed. (Docket No. 168; Docket No. 213.) On March 19, 2012, the Debtors filed a motion that the Court construed as an objection to the Claim. (Docket No. 159.) On April 2, 2012, Ocwen responded to the objection. After several preliminary hearings, discovery disputes, and a final evidentiary hearing, the Court entered an order disallowing the Claim. (Docket No. 217, 5.) The Court determined that neither Wells Fargo nor its servicers had standing to file a claim in the Debtors’ bankruptcy case. (Id.) Wells Fargo appealed. U.S. District Judge J.P. Stadtmueller affirmed the Court’s decision to disallow Wells Fargo’s Claim, holding:

“[E]ven if each version of the note self-authenticates under FRE 902(9), without testimony or other evidence from Ocwen to “‘connect the dots’” between the disputed allonge and the note, the evidentiary record contained only equally probable “authentic” versions of the note countervailing one another. Against that evidentiary backdrop, the bankruptcy court committed no error in finding insufficient evidence to confer standing on Ocwen to prosecute the disputed proof of claim.

Ocwen Loan Servicing, LLC v. Thompson, No. 13-CV-487, 2014 U.S. Dist. LEXIS 2109, at *14- 15 (E.D. Wis. Jan. 7, 2014).

Prior to the district court decision, the Debtors filed motions for reimbursement of mortgage payments (Docket No. 222) and attorneys’ fees. (Docket No. 223.) The Court entered an order determining that no action would be taken on the Debtors’ motions until after the district court entered a final order in the appeal. (Docket No. 225.) After the district court decision, the Debtors filed a motion to require the return of the original note to them. (Docket No. 239.) The Court set a briefing schedule. The parties have filed briefs. The motions are now ripe for decision.

 

ANALYSIS

Reimbursement of Mortgage Payments made on Disallowed Claim

Based on the disallowance of the Claim, the Debtors request a refund of all mortgage payments and trustee payments made to Litton and Ocwen since their bankruptcy case was filed in 2005. (Docket No. 222, 1.) Arguing that they “have every legal right to believe that they were or should have been paying the proper party,” (Id.), the Debtors calculate that a total of $146,972.45 should be reimbursed to them. (Docket No. 257, 4.) This amount includes $21,587.64 for “lost mortgage payments,” $106,167.91 for mortgage payments made outside the plan from July 2005 to December 2011, $11,716.90 for disbursements made by the Chapter 13 trustee on the disallowed Claim, and $7,500.00 for “return of sanction.”5 (Id.)

Wells Fargo raises only two objections to the Debtors’ motion for a refund of mortgage payments. First, Wells Fargo contends that the Court previously denied this motion at the March 14, 2013 hearing on the Debtors’ objection to Wells Fargo’s Claim……………….”

Second, Wells Fargo argues that the Court must balance the equities under the circumstances.6 Wells Fargo notes that Ocwen and Litton both expended funds during the course of the bankruptcy to prevent the Debtors’ property from going into tax foreclosureWells Fargo also argues that the Court’s decision disallowing the Claim did not alter the fact that the “Debtors borrowed money on April 14, 2000, and have yet to repay their debt,” and “[u]nder the circumstances, it would be inequitable to require Ocwen to take yet another loss on this account.” (Id. at 5-6.)

“The Court rejects Wells Fargo’s attempt to characterize the Court’s comments at the March 13, 2013 hearing as a definitive ruling on whether Wells Fargo should have to refund the payments it received from the Debtors during the bankruptcy case…………..

Wells Fargo’s second argument requests that the Court balance the equities under the circumstances. Wells Fargo cites one case to support its position, which notes that “[c]ourts exercising equitable powers must behave akin to doctors operating under the Hippocratic Oath: first, do no harm. We must do equity to all parties and not just the party seeking equitable assistance . . .” Briarwood Club, LLC v. Vespera, LLC, 2013 WI App 119, ¶ 1, 351 Wis. 2d 62, 839 N.W.2d 124. Wells Fargo suggests that if the Court grants the Debtors’ request, the Debtors will gain a free house. It notes that the Debtors borrowed money that they have not fully repaid, and as long as they are not required to repay it twice, the Debtors are obligated under the mortgage note. (Docket No. 246, 6.) Wells Fargo explains that while it may not have legal enforcement power under Wisconsin law, it does still hold physical possession of the note. (Id.)

And, according to Wells Fargo, since there have not been any competing claims for repayment on the loan, it would be inequitable for the Court to require Wells Fargo to take another loss on this delinquent account. (Id. at 7.)

A similar argument was made and rejected in Thomas v. Urban P’ship Bank, Residential Credit Solutions, Inc., 2013 U.S. Dist. LEXIS 59818 (N.D. Ill. April 26, 2013). In that case, Barbara Thomas filed suit against Urban Partnership Bank, alleging that Urban sought payments on a mortgage loan that it did not own. The central issue involved whether Thomas’s mortgage loan was included in an asset purchase agreement executed between Urban and Thomas’s original lender, ShoreBank. Urban moved to dismiss the complaint, arguing among other theories that there were no competing claims for payment on the note. But Thomas’s unjust enrichment claim survived the motion to dismiss. According to the district court:

Thomas clearly alleges that she owes someone money under the mortgage loan and that that someone is not Urban, and so it is irrelevant that no one else is currently making claims to her mortgage payments. If Thomas is correct that she owes money to someone other than Urban, then by paying Urban she has lost money without reducing the debt she owes to the loan’s true owner. . . . That amounts to the enrichment of Urban to Thomas’s detriment, since Thomas has lost and Urban has gained money for nothing . . . If, as Thomas adequately alleges, Urban had no right under the mortgage loan to the payments it received and Thomas made the payments on the mistaken premise that Urban was the loan’s owner, then fundamental principles of justice, equity, and good conscience require that Urban disgorge the payments . . . .

Id. at *27-29 (internal citations and quotations omitted).8

The district court in Thomas relied on Bank of Naperville v. Catalano, 86 Ill. App. 3d 1005, 408 N.E.2d 441, 444, 42 Ill. Dec. 63 (Ill. App. 1980), in which the court held,

“As a general rule, where money is paid under a mistake of fact, and payment would not have been made had the facts been known to the payor, such money may be recovered.”

The court also cited the Restatement (Third) of Restitution and Unjust Enrichment § 6 (2011) “Payment of Money Not Due” to the effect that payment by mistake gives the payor a claim in restitution against the recipient to the extent payment was not due, and a payor’s mistake as to liability may be a mistake about the identity of the creditor. The Restatement discusses two examples of payment by mistake that may be applicable here: mistake as to payee and mistake as to liability.9 Under mistake as to payee, the Restatement notes that “[a] mistaken payor has a claim in restitution when money is mistakenly transferred to someone other than the intended recipient.”…………..

Under mistake as to liability, the Restatement states that “[a] payor’s mistake as to liability may be a mistake about the identity of the creditor. In such a case, the payor believes that an obligation runs to the payee when in fact the obligation is to someone else.” The latter example applies here.10 The Debtors mistakenly believed that Wells Fargo was entitled to enforce the mortgage note. Wells Fargo’s servicers filed proofs of claim in the bankruptcy case, and they directed the Debtors to send their mortgage payments to Wells Fargo, in care of the servicers. The servicers accepted the Debtors’ mortgage payments on behalf of Wells Fargo, when in fact, Wells Fargo did not validly hold the mortgage note, and Wells Fargo was not entitled to the payments.

Although Wells Fargo has responded to the Debtors’ request for a refund with a plea for equity,11 in fact, the equities here favor the Debtors.

“A claim for unjust enrichment is based on the “universally recognized moral principle that one who received a benefit has the duty to make restitution when to retain such a benefit would be unjust.” Puttkammer v. Minth, 83 Wis. 2d at 689 (quoting Fullerton Lumber Co. v. Korth, 37 Wis. 2d 531, 536 (Wis. 1968))…..

 However, it is not enough to merely establish that a benefit was conferred and retained; the retention must also be inequitable. Id. This Court previously determined that Wells Fargo is not the holder of the Debtors’ mortgage note with legal authority to enforce it; that determination was affirmed on appeal. Without authority to enforce the note, Wells Fargo is not entitled to receive payments under the note. Only the party with a legally enforceable right to enforce the note is entitled to retain the benefit of the Debtors’ mortgage payments. Nevertheless, Wells Fargo, through its servicers, received voluntary payments from the Debtors and payments from the Trustee since the commencement of this bankruptcy case, subjecting the Debtors to the possibility of having to pay twice if the true owner of the note appears. Since Wells Fargo and its servicers have no legal right to the Debtors’ mortgage payments, retention of the Debtors’ mortgage payments would be inequitable.

 

Adding all of the entries for “payment” shows that the Debtors paid $97,979.68 from February 2006 to July 2011. (Docket No. 211, Ex. 11).12 Additionally, Wells Fargo should credit the Debtors with $7,500 for the sanctions awarded in the prior claim objection proceeding. (See Docket No. 103, at 10), for a total of $105,479.68. Wells Fargo points out that it made real estate tax payments on the Debtors’ behalf that should be deducted from any refund claim. The Court agrees. After subtracting $32,438.19 for the tax payments made on the Debtors’ behalf, the Debtors’ total claim for unjust enrichment is $73,041.49. Under the circumstances, Wells Fargo should be required to return this amount to the Debtors to avoid being unjustly enriched………….

Attorney Fee’s

“The Debtors also filed a motion for attorneys’ fees, arguing that Wells Fargo should pay approximately $12,500 in fees and costs the Debtors expended in connection with the failed mediations with Litton and Ocwen. According to the Debtors, “[u]nnecessary protracted negotiations have been ongoing since 2010. Starting with Litton Loan and ending with Ocwen. The plaintiff has misrepresented their standing, despite the efforts of the debtors to discuss this matter in the mediation process.” (Docket No. 223 at 1-2.) The Debtors also request punitive damages under 28 U.S.C. § 1927 for “vexatious litigation conduct” by Litton and Ocwen. (Id. At 2.) They note that Litton failed to attend several scheduled mediation sessions, and when Ocwen reinitiated mediation proceedings in 2012, there was a “delay to the debtors of 6 hours in the first and only scheduled mediation, with the debtors believing that progress was being established.”……………………… Although the Debtors have the right to be disappointed that the mediation did not succeed despite the attorneys’ fees that the Debtors expended, Wells Fargo’s attorneys acted under the impression that their client had proper standing. The Court finds that Wells Fargo’s attorneys did not unreasonably and vexatiously multiply the proceedings by their conduct in this case, and the Debtors’ request for attorneys’ fees is denied.

Request for Return of Note

The Debtors’ final motion asks the Court to order Wells Fargo to turn over the original mortgage note to them. Despite the Court’s ruling that Wells Fargo cannot enforce the note, the Debtors are concerned that Wells Fargo will somehow sell, transfer or trade the note, subjecting the Debtors to further litigation, emotional distress and financial hardship. Wells Fargo responds by attempting to discern the legal theories under which the Debtors are attempting to proceed, and then casting aspersions on those theories. The Court generally agrees with Wells Fargo that the Debtors could not succeed on a replevin claim or turnover action based on the note as property of the bankruptcy estate. However, the theory that the surrender of the original note consequently follows from the disallowance of Wells Fargo’s Claim warrants further analysis. The Court also takes this opportunity to clarify that, while not “undoing” any part of the Foreclosure Court’s judgment, Wells Fargo’s ability to enforce that judgment was never finally determined by the Foreclosure Court, and the disallowance of Wells Fargo’s Claim on standing grounds strongly suggests that Wells Fargo has no such ability………………..

Neither the Debtors nor Wells Fargo cited any case law supporting their position on whether the note should be returned to the Debtors after disallowance of the Claim, and the Court’s independent research uncovered no case directly on point…………………..Here, while the validity of the note and mortgage in favor of Provident was actually litigated and determined in the Foreclosure Case, Wells Fargo’s substitution as the plaintiff was summarily ordered without notice to the Debtors or any hearing on the issue. The Debtors were not afforded a reasonable opportunity to obtain review of the substitution order before the automatic stay intervened. That the party sought to be precluded had a reasonable opportunity to obtain review of the prior court’s order is a basic premise of the fundamental fairness prong of the issue preclusion analysis. Id. This Court previously denied Wells Fargo’s attempt to establish its standing to file the Claim based on the judgment and order of substitution in the Foreclosure Case. For the same reasons, issue preclusion does not act to bar the Debtors’ claim for return of the note……………..

“The court agreed with other courts that simply because a creditor lacks standing to enforce a note, the debtor is not discharged of her obligations under the note. Id. This Court has concluded (and the district court on appeal agreed) that Wells Fargo is neither the holder of the note nor a nonholder in possession of the instrument with the rights to enforce it. (Docket No. 233, 11.) Therefore, Wells Fargo (and its affiliates, servicers, successors and assigns) cannot enforce the note, but that fact does not cancel the note nor discharge the Debtors’ obligations to the true owner. In the absence of any authority for their request for turnover of the original note and analogizing to the cases requesting dismissal with prejudice, the Debtors’ motion to require Wells Fargo to surrender the original note is denied….

CONCLUSION

The Debtors’ motion for reimbursement of the payments made on Wells Fargo’s disallowed Claim is granted, subject to offset for real estate taxes paid by Wells Fargo. Within 30 days of the date of this Order, Wells Fargo must pay $73,041.49 to the Debtors and $11,716.90 to the Chapter 13 trustee. The Debtors’ motions for reimbursement of attorneys’ fees and turnover of the original note are denied. The foregoing constitutes the Court’s findings of fact and conclusions of law. The Court will enter separate orders on each motion.

Dated: October 21, 2014

GETTING YOUR HOUSE BACK: RIGHT OF REDEMPTION IS WORTH A TRY

For further information or assistance please call 954-495-9867 or 520-405-1688

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see http://www.bankrate.com/finance/real-estate/get-house-back-after-foreclosure.aspx

There are numerous ways to reverse or cure the foreclosure process. We have outlined legal procedures to vacate judgements, set aside the sale etc. in other articles. One way that we have not explored in depth is the right of redemption. The government sponsored entities (GSEs) have long had a policy of not allowing the borrower to bid on the property at auction or even allowing the borrower to buy the house after it is foreclosed. This policy has been followed industry wide. Martha Coakley Attorney General in Massachusetts has filed a lawsuit to prohibit this practice and allow borrowers or charitable organizations to front the money to get the house back for the homeowner.

The banks are fighting this tooth and nail because of their fear of liability from insurers, investors, guarantors and counterparts on hedges like credit default swaps — all vehicles for the effective sale of the same loan over and over again. This means they could have a liability for as much as 5-10 times the stated amount on the note. So they want the foreclosure sale even if it nets nothing and the property is abandoned.

But in the end this about money between a debtor and creditor. Both are getting screwed by the current policies, which continue to protect the big banks from massive liabilities rivaling the entire GDP of the Untied States. And many states allow for rights of redemption by statute and even in the states that don’t allow redemption (in exchange for a statutory waiver of a deficiency judgment) there are common law actions that might be present to allow the homeowner to redeem or reacquire the the title to the home. The problem I see is that if the foreclosure was fraudulent to begin with and/or the initial origination was fraudulent and faked, the title of the homeowner will remain clouded absent some legislative adjustment in what title means after considering the variables present when there are claim of securitization whether true or not.

Most Judges will agree that if you offer to redeem the property for the amount demanded, you should be allowed to do so. And there is frequently a process by which a borrower can apply to the court for a hearing on the amount of the redemption when the bank balks at giving the information (which is nearly always now).

My point is that even after the foreclosure judgment or foreclosure sale, don’t give up. See an attorney licensed in the geographical area in which your property is located and ask him or her to do the research and let you know what your options include and what is excluded procedurally.

OneWest — One Step Up from Donald Duck

For further information please call 954-495-9867 or 520-405-1688

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Well at least OneWest legally exists and it didn’t originate any loans even though it sometimes tries to give that appearance. But it is clear that this company was literally formed over a weekend to takeover IndyMac business. In so doing it made a number of dubious deals in which it was not to be liable for the shoddy, fabricated documents, and unlawful practices of IndyMac which claimed ownership of loans that were already sold into the secondary market and then subjected to conflicting claims of ownership. It looks like the return on investment was infinite.

OneWest Bank Targeted By Insurer Over $335M In MBS Losses

Law360, New York (August 13, 2012, 9:41 PM ET) — Assured Guaranty Municipal Corp. fired off a suit against OneWest Bank FSB in California on Thursday, claiming the company’s shoddy loan servicing was to blame for some of the $335 million it has shelled out in insurance claims related to mortgage-backed securities.

The lawsuit in Los Angeles court says that since OneWest took over IndyMac Bank FSB’s role as servicer of mortgage loans underlying residential MBS, the loans have experienced delinquencies and defaults at a severe and unexpected rate. That in turn has forced Assured to…

The question is whose loss was this, and why did the insurance company pay it off? The bigger question is that if the loss was paid off, why wasn’t allocated to the underlying assets whose decline in value was the basis of the loss claim?

OneWest Bank Can’t Shake HAMP Loan Class Action

Law360, New York (October 23, 2012, 3:11 PM ET) — OneWest Bank FSB on Monday failed to escape an Illinois class action accusing it of bungling a mortgage loan modification application by unreasonably delaying its response and imposing late fees for payments that were not actually late.

Judge Sharon Johnson Coleman rejected OneWest’s argument that lead plaintiff Stacey Fletcher lacked standing, finding that her complaint alleged sufficient injury from OneWest’s allegedly unreasonable delay in responding to her request for a modified loan under the Home Affordable Modification Program.

Fletcher further accuses OneWest of reporting her to…

It seems like OneWest was too busy  making claims for loss sharing and insurance and guarantees to actually pursue modifications.

OneWest, Soros Accused Of Mortgage Scam In FCA Suit

Law360, New York (October 16, 2012, 9:47 PM ET) — A Florida resident hit OneWest Bank and billionaire majority shareholder George Soros with a False Claims Act lawsuit Monday, saying that through their connections to President Barack Obama, they had finagled a loss-sharing deal with the government that allowed them to scam homeowners and taxpayers.

James Beekman, who originally took out his mortgage with IndyMac Federal Bank, says when Soros and OneWest took over the fallen bank, they entered into a loss-sharing agreement with the Federal Deposit Insurance Corp. Under the deal, OneWest would shoulder the…

Disclosure. Patrick Giunta and I represent Beekman. No further comment

Loan Info Confidential

By Michael Lipkin

Law360, San Diego (November 10, 2014, 6:13 PM ET) — OneWest Bank NA is trying to stop Lehman Brothers Holding Inc. from accessing confidential information about Lehman-owned loans it used to service, alleging in New York federal court that Lehman is trying to blame OneWest for its own bad investments.
In a complaint filed Friday, OneWest claims Lehman is trying to access regulated information about 27 mortgages OneWest used to service, including confidential data about borrowers that OneWest alleges Lehman doesn’t have a right to access. The loans were eventually liquidated after poor performance, and the service agreements governing them have already expired, according to the complaint.

“This action seeks to end defendants’ misguided campaign to try to force OneWest to provide them with confidential information to which the defendants are no longer entitled,” the bank said. “Doing so could subject OneWest to potential regulatory and civil liability for failing to protect private borrower information.”

Aurora Commercial Corp., formerly Lehman Brothers Bank FSB, is also named as a defendant.

Lehman allegedly bought the loans as part of a pool from IndyMac Bank FSB between 2006 and 2007, with IndyMac retaining the right to service the loans. After IndyMac was shut down by the Office of Thrift Supervision in 2008, OneWest bought the servicing rights from the Federal Deposit Insurance Corp. The deal expressly said OneWest was not liable for previous servicing conduct, according to the complaint.

For the full article see http://www.law360.com

10 Point Checklist for Foreclosure Defense

For further information or assistance please call 954-495-9867 or 520-405-1688

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By popular request, here is my shortlist for items to deal with in foreclosure defense or any challenge to the validity of a mortgage and note.:

  1. Original loan fabricated of faulty — the “lender” did not legally exist as an entity or there was no consideration for the original loan in the chain of loan ownership claimed by the foreclosing or collecting party.
  2. Ownership of loan not offered or proven
  3. Balance of the loan not properly computed because of servicer advances etc.
  4. Transfers of loan not supported by consideration — if there was consideration the Trust would allege it was the holder in due course.
  5. Business records were not properly presented or prepared from actual business records., Instead it was a report prepared just for trial and not in the ordinary course of business.
  6. Unclean hands because the load was predatory per se (Table funded loan) under Reg Z.
  7. Trial by ambush. first they deny you discovery and then at trial they use the materials they should have given you in discovery
  8. Objections to witnesses as being not competent to testify — personal knowledge
  9. Objections to exhibits not properly presented to avoid the hearsay rule and untrustworthy because the servicer is the only one that actually wants the foreclosure.
  10. Objections to judicial notice — judge not supposed to accept the document as proof of the matters asserted in the documents. Judge is supposed to admit judicial notice as proof that a documents exists in the public domain.
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