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2,362 Responses

  1. Who is Authorized to change the trustee in a securitized loan. US Bank National Association was the Trustee before we went into the Bankruptcy Process. Once the Bankruptcy proceedings started, Wells Fargo’s (Servicer)’s Attorneys created documents to appoint individuals within thier lawfirm as trustees. Im no attorney, but something just does not seem right about that. James 443 677 2799 jsmith5915@msn.com

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  4. Cease and Desist Order against Citi and Wells Fargo.
    There is currently a Cease and Desist Order against Citi Mortgage. Below is the complaint that I sent to Office of Comptroller and Currency.

    There is currently a Cease and Desist Order by the Office of the Comptroller of the Currency against Mortgage Electronic Registration System. I am writing because I want something done about the Banks and MERS, because they continue to perform illegal transactions. I recently had a document that was posted to County Public Records by Citi Mortgage and MERS. It was a Deed of Trust for a transaction that was done back in 2005. Something was not right about them just now posting this document after so many years. I goggled the person that signed the document, Geraldine Ann Belinksi, Vice President. I found another Deed of Trust online that had the same person’s name on it, but this time it stated that she is the Assistant Secretary. I immediately got on the phone and called the office that was listed on the document, Citi Mortgage, 1000 Technology Drive, O’Fallon, Mo. I located the office where this individual worked and discovered that she is a mere processor. This has gotten out of hand and I am very skeptical that any of the transactions and documents that I have through Citi Mortgage are legal and binding. Why are they allowed to continue Robo Signing documents? I can be reached at 443-677-2799. Thanks James A. Smith

    I did not call MERS to verify that she worked there. I call Citi and they stated that she was a processor. This is response that I received from Citi regarding the complaint

    “Our records indicate Geraldine A. Belinski is a Certified Appointed signor for Mortgage Electroic Registration Systems Inc.”

    My question is, does MERS have employees that work in Citi facilities? I do not believe this. I called and verified that she worked there and they stated she was a processor. How can I verify that they are lying, because Im sure that OCC will believe what Citi’s response was.
    James Smith 443-677-2799.

  5. I just recently went on County Public Records and saw that a Deed of Trust was just posted by Citi Mortgage who is my current first Mortgage Company. We refinanced back I 2005 and that’s when Citi acquired the Mortgage. Does anyone know why they would be just now posting a deed of trust in public records so many years after the fact. If you know the answer you can call me at 443-677-2799 or you can email me at jsmith5915@msn.com. Thanks James Smith

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  61. In need of a lawyer.

    Hi All, I have been lurking with the occasional foray into LivingLies since 2009. My house is currently in foreclosure, but after a long battle I have finally decided that this is not a fight I am going to win, and as a result I have a Short Sale contract that will end my Mortgage Nightmare.

    My problem is a historical one. My Ex-wife claims I owe her large some of back child support and the documents relating to this claim were filed while I lived out of the country for many years, and as a result she has a lien on my house which is stopping the process dead in its tracks.

    Regardless of the history, she has agreed to release the property for short sale as there will be no monetary gain for either of us due to a $250k mortgage on a property worth $85k.

    This brings us to the need for a lawyer. The organization that filed the lien in Pinellas county is “Child Support Enforcement Inc” of Texas which went bankrupt some years ago and the trustee that is handling the fallout of the bankruptcy is not interested in helping for some reason. I suspect he has been laden with a great deal of fallout from the questionable tactics of the original law group.

    I have spoken to a lawyer who suggested that to get around the lack of cooperation from CSE Inc, that my Ex should engage a lawyer to file a “Substitution of Counsel” which would then allow them to file an release Affidavit for property while leaving the Lien in place for future property purchases (Which I am ok with, that is a fight for another day).

    Here comes the difficult part. Although the Ex is willing to sign, she will not take any time to go see a lawyer or the like. She said if I want it done I have to do all the footwork and I have to assume that I would need to bring the Lawyer to, or arrange for the lawyer to meet her at her place of work or home to get the relevant signatures. She lives in Sarasota, and the filing needs to take place in Pinellas County.

    Does anyone know of a lawyer who might be willing to spend a few hours traveling for this simple two stage process that could result in a great relief for me and my family? I have the ability to pay the necessary fee’s and would be grateful for any guidance or assistance in gaining the help of a “Lincoln Lawyer” ?

    TLDR; I need a lawyer to travel to my ex wife in Sarasota and get a “Substitution of Counsel” and “Affadavit of Lien Release” filed with the Pinellas County Civil Court.

    Thank you for any help or guidance that can be provided.

    Rik

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  68. STOP FORECLOSURE OPTIONS FOR CALIFORNIA HOMEOWNERS. FREE CONSULTATION IN OUR OFFICE OR VIA PHONE. FOR MORE INFORMATION CALL LAW OFFICES 818-279-2749

  69. Thanks David!
    Actualy we are initiated a lawsuit against Freddi Mac In New York. Their argument is that because the property is located in Illinois, we have to file the suit in Illinois. But the securitization governs by the sate of New York, we are wating for the Judge to decide on this since June. In the mean time we want to sell our home, we are not in default. I think we are the first ones to sue Freddie Mac, dimanding to show the money trail. More people need to go after them.

  70. Freddie has their servicers receive assignments in their own name and foreclose. Freddie will give you no information beyond what is on their look-up tool. As a GSE they do not consider they are required to respond to a Freedom of Information Request as gov entities are.

    Only way to get information is a lawsuit in which they are subject to discovery.

  71. Freddie Mac claims that they owe our loan, however they never recorded the assignment from Taylor, Bean and Whitaker, they are not on the title or on the mortgage. We are selling our home on Land Contract, can Freddie Mac Accelerate on the loan? Or we can challenge and ask to prove the ownership of the loan? If they did not paid for the loan, we do not have any agreement with them can they demand payment?

    Thank you,
    ibecker17@aol.com

  72. Hi All,

    My quest continues. I am working my way through the courts with several hearings scheduled and they are almost all in part due to help I got here on Livinglies.

    I have a question that may or may not be relevant, As part of going through the motions I have started the short sale process with Wells Fargo. I have a contract and while gathering the various papers required to make it happen, the title company halted the process due to there being a lien on my property. I will not go into details, but the lien order was in place shortly after I purchased the house, but before my refinance.

    Wells Fargo is my servicer/pretender lender as a result of a refinance and during the refinance I went to a title company to complete the paperwork which was pretty much as much as when I purchased the house.

    My questions are. Should the refinance have been halted/denied to due to the lien? Did the title company that did the work during the refinance fail to do due diligence / title search correctly and miss the lien? Does the Title insurance that was purchased as part of the transaction cover this error? What would be my options?

    Thank you to any and all who can help, or have helped in the past.

    Rik

  73. I’m still learning from you, while I’m improving myself. I definitely liked reading everything that is written on your site.Keep the stories coming. I liked it!

  74. Florida Supreme Court just amended the rules to implement electronic filing of pleadings and papers. Electronic filing by email will be mandatory for civil cases starting July 1, 2012. Pro se litigants have the option to file both electronically or by paper.

  75. Enraged

    Regarding your sympathy for (not) ousting the coconspirator “buyer”:

    I think the point of no remedy is called the statute of limitations

    And with everything that’s been in the press I question whether bfp is a valid position anymore where foreclosures are concerned. The whole planet is on notice of bank shenanigans

  76. DAMN
    IN ANSWER TO YOUR QUESTION
    CENTRY 21 ARE ‘DEBT BROKERS’ WHO ACQUIRE LIENS IN PARTNERSHIP WITH WELLS FARGO BANK NA FOR FANNIE MAE 1003 APPLICATIONS IN SECONDARY MARKET

  77. Hey Lisa you can file a Chapter 13 Bankruptcy. I am in the process right now. It stops the process of foreclosure and gives you an opportunity to get finances in order and possibly get 36 to 60 months to pay your arrears. Hopefully this info is not to late

  78. CALIFORNIA AG KAMALA HARRIS PRESS RELEASE 2-29-2012 ANNOUNCING HOMEOWNER BILL OF RIGHTS

  79. Can anyone tell me what is ” Form 603A” in terms of Lehman Brother’s Bank Mortgage Purchase Suspense Notice”. I found a document in my QWR response Titled:

    Purchase Suspense:
    Underwriting Condition, Additional Requirement; Provide a letter of permission to removed the prepayment addendum. Per Form 603A
    PrePays are not allowed in the State Georgia of GA., if owner occupied and <$333,700.00.

    There was a 2nd letter from Aegis wholesale titled: Letter of Intent,
    where Sr. Exceptions Processor,Richard Spadola, states that he intends to re-record the deed of trust. "It was never re-recorded"

    Thanks

    Gary G: gold8165@boxbe.com

  80. I need an attney in Dallas fort worth Texas to defend in gmac forclosure. . We have been doing this for five years and put Atty pulled out after filing suit and paid him over $10,00″. My husband passed a few months bk and out atty wanted further immediate funds within two days to fe a TRO. When not received by his deadline . He pulled representation . I have forclosure sale in march which is very quick .

  81. Federal Trade Commission: Loan Securitization Audits Are Scams

    February 3rd, 2012 | Author: Matthew D. Weidner, Esq.

    http://mattweidnerlaw.com/blog/2012/02/federal-trade-commission-loan-securitization-audits-are-scams/

  82. i think you have to file MOTION TO COMPEL.

  83. Hello I am not an attorney but I hadresponded to a set of interrogatories and the plaintiff did not like my response.They filled a motion to compel better responses. Maybe this is what you need to file.Good luck

  84. Hi All,

    I am still fighting the good fight ProSe and could use some more guidance.

    We have a 2nd hearing regarding a FDLG motion for summary judgement that was read at a hearing in December. I attended in person, and FDLG was on the phone. The Plaintiffs lawyer on the phone was not aware that I had 5 outstanding motions, and the judge referred my file to local counsel for review and we get the outcome tomorrow I hope, which IMHO should be a dismissal of the Motion for Summary Judgement and a continuation of the case through the hearing of the various motions. Update on the hearing to follow!!!

    FDLG/Wells Fargo has replied to my Discovery and Interrogatories request with around 75% of the replies stating that the information is client / business confidential, irrelevant or requires excessive effort on the part of the plaintiff / representation.

    I saw a note in one of the many e-mails I get from the LivingLies site about a motion to get them to answer the questions, but cannot find it again. I would like to file a motion but am uncertain of the content.

    Can anyone provide an example or instructions on what is needed to do this?

    Thank you in advance for any help you all can provide.

    ~ Rik ~

  85. Can my lawyer file a quiet title suit in New York’s Supreme Court if the property is located in Illinois?
    His argument is yes, because the securitization happened in New York. Can anyone tell me if this is true before I retain him?

  86. The standard language in a Fannie Mae and Freddie Mac Uniform Security Instrument or more commonly known as the ‘Deed of Trust’ that millions upon millions of people signed contains the following:

    “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.

    The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender: (i) the repayment of the Loan, all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.

    Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Interest, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of these interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

    Many of those same millions, either as pro se or with counsel have poured through the language the above text time and again, Scholars have analyzed and dissected it, and the courts have ruled on it. From this researcher and pro se warriors position, it is not the text that is at issue, rather specific representations that have been intentionally concealed that should be primary issue. Adding the representation that is absent, the same passages should be read as follows:

    “MERS”® is Mortgage Electronic TRADEMARKED Registration Systems, Inc. MERS® is a separate corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. MERS® is the beneficiary under this Security Instrument. MERS® is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS.

    The beneficiary of this Security Instrument is MERS® (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS®. This Security Instrument secures to Lender: (i) the repayment of the Loan, all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.

    Borrower understands and agrees that MERS® holds only legal title to the interests granted by Borrower in this Security Interest, but, if necessary to comply with law or custom, MERS® (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of these interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument.

    Following the Trademark of MERS® would have led us to the United States Patents and Trademarks Office (‘USTPO’) database, namely the Trademark website. http://assignments.uspto.gov/assignments/q?db=tm
    Curiously though, should you type the words ‘Mortgage Electronic Registration Systems’ or ‘MERS’ in the Assignee/Assignor space, you would be returned an answer of none found. Hmmm, a glitch in the website of labeling or is it something more?

    However, enter the words ‘Mortgage Electronic Registration’ opens to a page listing registration number 2084831 Mortgage Electronic Registration Systems, Inc. clicking through brings you to the Trademark Assignment page. http://assignments.uspto.gov/assignments/q?db=tm&asnrd=MORTGAGE%20ELECTRONIC%20REGISTRATION%20SYSTEMS,%20INC.
    Click the registered number 2084831 link which brings up another page, clicking than either the serial number or registered number, bringing up another page, which you will than click the ‘Trademark Document Retrieval’ link. This brings up the last link in which you will place a check in the ‘Select All’ box, thereafter clicking the ‘Download Pdf’.

    As you review the document ask yourself, would you, or for that matter would anyone have ever signed the loan documents. I don’t about anyone else, but we were told upon inquiry, as the closing agent was pushing papers before us in a hurried sort of way, that Mortgage Electronic Registrations System was national database to track loans. The documents recorded in the Trademarks database say a hell of a lot more that. Although not all MERS secrets are revealed in its registration documents it does make clear MERS is deals with the trading of Mortgage Servicing Rights (“MSR”), which is not the same as a mortgage. A Servicers right to payment its fee for passing through loan payments does not qualify anywhere near a mortgage.

    What is contained within the MERS registration documents are an issue in itself and worthy of study and research, which I have done for the past couple of years and have quite a bit to write on. But, on the issue of the Trademark representation being what we have to assume is an intentional omission of material fact in the loan documents. “Coke Adds Life” Coca-Cola, absent the representation, Coca-Cola®, is not the same as MERS® misrepresented as MERS. As “Coke Adds Life” MERS ® takes lives away.
    Trademarks are distinctive pictures, words, and other symbols or devices used by businesses to identify their goods and services. Trademarks fall under a separate body of law, Trademark Law, regulated by the Lanham Act of 1946 and the Trademark Act (15 U.S.C.A. § 1051). Trademark owners grant to users exclusive rights to their marks, which to a larger degree are spin off products of a patent, but does not necessarily have to be. Trademarks also serves the consuming public in the recognition of products and consumer expectations of consistency in quality in the products it buys with the mark. Additionally, marks reduce consumer confusion in the identification of goods and services, in the case of a Service Mark, which more accurately describes MERS.

    MERS Service Mark as it is officially registered states:
    Reg. No. 2,084,831
    Registered July 29, 1997

    MORTGAGE ELECTRONIC REGISTRATION
    SYSTEMS, INC. (DELAWARE CORPORATION)
    1125 15TH STREET, NW
    WASHINGTON, DC 20005

    FOR: REAL ESTATE DATABASE SERVICES, NAMELY, PROVIDING AND MAINTAINING A REGISTRY OF THE TRANSFER OF MORTGAGE SERVICING RIGHTS. MORTGAGE OWNERSHIP, SECURITY INTERESTS IN MORTGAGES AND THE RELEASE OF MORTGAGES FOR USE BY THOSE IN THE MORTGAGE
    BANKING INDUSTRY, IN CLASS 36 (U.S. CLS. 100, 101 AND 102). FIRST USE 2-1-1996; IN COMMERCE 2-1-1996.
    SN 15-031,300, FILED 1-21-1995.

    Unfortunately, there is no private right of action under the Lanham Act and Trademark Law which if ever a case materialized it would be on behalf of consumers, meaning a class action suit. Assignments of trademarks are very, very, interesting and worthy of exploring in great detail. Of course, there is the fundamental issue as to omission, and the concealing of implied contracts. All of the above become ever the sweeter for legal exploration the deeper we go, as my friend Vermont would say, ‘down into the rabbit hole.’

    We are battling these issues of foreclosure as if they are real property issues, and certainly this absolutely correct. We are heavily engaged against MERS on legal issues of beneficiary, nominee, and legal title holder, and making some progress in some courts, where MERS has been tossed from the court. Than along came the schmuck that was tossed in a room and told to ‘robo-sign’ thousands of documents.

    No disrespect is intended over the next few sentences to follow, especially to those who have fought hard in the trenches these past couple of years who have achieved great success. Although in a defensive position, protecting our real property and title, this the battlefield in which we fight is of our choosing, and MERS has happily engage our real property battlefield. It is argued that MERS cannot be the beneficiary, backing it with the latest case law available. The same can goes for issues to beneficiary, and lastly to legal title holder. Like a stupid silly assed kid MERS response is, “because we are the nominee”, we are the beneficiary’, and ‘MERS does hold legal title’. Why, ‘because we do’. This just drives us nuts, as it confounds the legal system and has pissed off more than a judge or two.

    What if, MERS is correct and all its nutball claims that they spill upon the court are correct? What if they are everything they claim, they are? …hear me out first before you click this of before you all start going off the rail……What if MERS is simply entertaining our legal arguments on real property issues, if say for reasons to divert our attention from something they do not want us to recognize and might begin to pay attention to. Stated differently, what if MERS is hiding the theft of our sovereignty before our very eyes in plain sight.

    What if the first step was the intentional omission of MERS® from the borrower and all of society? What if the second was the industries crafting of public opinion labeling all subprime borrowers as liars, cheats, and thieves, thereby society casting aside borrowers and its empathies. What if MERS is hiding its secrets in plain sight and we are just not seeing it? What if the schmucks that were thrown in a room and told to robo-sign thousands upon thousands of documents had nothing to do with hiding sloppy paperwork, but a desperate attempt to conceal something much more damaging the banksters?

    From the level ground where we stand, to the right may be Bank of America, to our left we see Ownit Mortgage, or Option One, or Indymac. Directly in front sits Litton Loan and behind us is First American Corelogic. In looking around MERS is nowhere to be seen, than suddenly before you, the street begins to open and up rises an underground elevator, prominently labeled MERS, and just as quickly as it arises its gone.

    The oversimplified point being made is MERS is not a shiny building on the hill, MERS are all the entities before and around you and many, many more private members. The collective members are MERS and MERS is your entry portal and eventual exit portal, it is an electronic clearinghouse. On exit, the fabricated instrument by which you entered at closing, is fabricated again for your expulsion, that is with auction.

    Welcome to the machine, an entirely automated underground economy that was secretly built around the turn of the century, dismantling our economy and democracy before our eyes. Doing so under a boasting Congress with the fanfare of Legislative Acts disguised as opportunity while other Legislative Acts quietly slipped past the revelry, but the damaging impact tremendous. Concealing its minion while they worked is MERS, the OCC and others, by late 2005 the automated economy we knew nothing about was fully operational, using Canada and Australia as the hub point to entirely globalize us in less than a year.

  87. Help,

    Facing Unlawful Detainer in non-judicial Virginia after loosing Motion for Summary Judgement in Wrongful foreclosure case. My attorney is appealing our case. In the mean time I was served with Unlawful Detainer and have hearing coming up 2 weeks.

    I am still in the home and trying to have nerves of steal but the stress is killing me!

    Does anyone know what I can do next having a UD and an appeal running side by side is very stressful and not knowing if we will be evicted is worse.

    Sadly judges here in Virginia are just not even opening their minds to the fraud at all they have decided our cases before we come into court. Has anyone had experience with UD or foreclosure n Virginia they can share that is positive?

    I have been on these boards for four years and I am I know we are in the battle of our lives here. I have won several run in’s with the pretenders but tonight I feel so overwhelmed!

    I know their is a possibility bond to stay while on appeal but this can get mighty expensive with payments to attorney also. It would be cheaper to move on and save my money but I just can’t do that this is my home.

    Any wisdom or ideas would be appreciated.

  88. Hi, i feel that i saw you visited my web site so i came to ?go back the prefer?.I am attempting to in finding things to enhance my website!I assume its good enough to make use of some of your ideas!!

  89. I live in Florida, I have all the bank statements, copies of the checks, and the letter of satisfaction from GMAC.

  90. To Alex Benavides: what State are you in?

  91. Back in 2005 in bought a home with an 80/20 loan (80 IndyMac, 20 GMAC), few months later I opened a HELOC with WaMu which paid off my loan with GMAC, when GMAC received the pay off check they said that the loan was already satisfied and even sent me a letter stating so, so GMAC sent the check back to WaMu, then WaMu credited the amount to my HELOC, about three months later the months later the amount of the pay off of the loan with GMAC suddenly disappeared from my HELOC, I called to verify if they had sent the money to GMAC, their answer was ”I don’t know”, so I called GMAC to ask if they had receive a check from WaMu for such amount and they told me “NO, the loan was satisfied a while back”, so I called the WaMu headquarters office, after about one hour on the phone I finally get a VP on the phone, I asked told him the situation, he proceeded to ask me what I wanted, so I said “I just wanna know where that money went”, and his answer was “I don’t know what to tell you sir, I don’t know”. the property was foreclosed back in late 2010. I am still having to pay for that money, every months they take the payment from my account,

    Please Help

  92. Awesome issues here. I am very happy to look your article. Thank you a lot and I’m having a look ahead to contact you. Will you kindly drop me a e-mail?

  93. If been fighting the auction for about 16 months, now it happened. How can I fight them more, where do I start, I didn’t even get a chance to fill a BK when I could have? Please advise if you know what my choices are, if it’s find an attorney, exactly for what. Please Please advise?

  94. ForeclosureProSe,

    Thank you for the reply. I suspect that things are progressing to a level that Pro Se is problematic. I am meeting with a lawyer who “gets it” this week and will see how she thinks I have done so far, and where we go from here.

    Rik

  95. Rik,
    You need to take this very seriously. You need to do the following ASAP:
    1) File an affidavit in opposition to the summary judgment.
    2) Object to every affidavit they have filed.
    3) Send your discovery request.
    Do not delay.

    www. foreclosureProSe . com
    www. twitter. com/ foreclosurePS

  96. Hi all,

    It has been a while since I needed to anything on my case, but I have several outstanding motions (7) that have not been addressed by the courts but I received a notice of hearing for “Plaintiffs Motion for Summary Judgement Including a Hearing to Tax Attorney’s Fee’s and costs” today.

    Would I be wrong in thinking that outstanding motions should be addressed before a motion for summary judgement can or should be heard?

    One of the outstanding motions is actually a motion to dismiss the Motion for Summary Judgement and is based on my other motions for various responses/filings that the Florida Default Law Group has filed in my case.

    Your guidance would be greatly appreciated.

    Regards and thank you.

    Rik

  97. Can anyone tell me what are Net Funded loans?
    Our refinanced loan is net funded by Taylor, Bean and Whitaker
    We just found out from the bankruptcy court ruling in TBW case

  98. Do occ and the IRS And FBI and doj and FDIC aNd FTC , sec ,attorney general , no that , jpmorgan , banco bbva , is been run by a temporary sevice , that in some kind of way , is giving them self in so many wAys , a thought that they are the owner of Those companies , and they can do what they want . No that not it , yall are trust , and temp worker .start acting like too .

  99. Very informative site you have Thanks.

    What is the statues of time to file Lawsuit against the foreclosure processor in Calif.. There are a few requiremets that have now been recognized many months later…

  100. Legality of Thousands of Mortgages Thrown Into Question

    Robo-signing has been around a lot longer than originally thought, and could jeopardize the legality over the deeds of tens of thousands of homes dating back more than a decade ago, the Associated Press (AP) reports.

    County officials across the country are finding mortgage paperwork that were improperly notarized or signed without proper review, dating as far back as 1998, the AP has found in its analysis.

    For example, in Guilford County, N.C., about 74 percent of 6,100 mortgage documents filed since 2006 were found to have questionable signatures.

    “Because of these bad titles, property owners can’t prove they own the properties they think they bought, and banks can’t prove they had the right to sell them,” Jeff Thigpen, the registrar of deeds in Guilford County, N.C., told the AP.

    Since last fall, banks have faced investigations over “robo-signing” procedures, which consists of shortcuts of approving and reviewing mortgage paperwork and foreclosures. The “robo-signing” scandal has brought many foreclosures into question as home owners have challenged the validity of their mortgage documents.

    Mortgage documents with robo-signed signatures could throw into question the ownership of the properties, says Katherine Porter, a professor at University of California Irvine School of Law.

    Furthermore, if invalid documents are discovered in the chain of ownership, shoddy mortgage paperwork has the potential to delay the sale of a home or make it difficult for buyers to get a mortgage because title insurers won’t write a policy for the property, says Justin Ailes, vice president of government affairs of the American Land Title Association.

    Source: “Widespread Robo-signing of Mortgage Documents Found as far Back as 1998 Could Haunt Owners,” Associated Press (Sept. 1, 2011)

  101. I am writing this to creect last note with wrong email address.

    Sir Even though I have ALL paid notes and everyone I talk to about this sees proof that Countrywide is about to illegally foreclose on my home where I have 2 disabled children I am not able to get help to fight them. I have no resources now to fight and suddenly this months new item is a completely fabricated lost note affadavit by a loan person in duval florida who submitted to clerk a paper stamped by the Vet Ad that my VA NOTE was lost and missing so they couuld receive a NEW note for a va loan in 1987 that removes all past trustees and places me as the originak 1987 VA loan purchaser , This note was filed for by countrywide in Feb 2011 in Florida . I live in this house in Virginia and purchased it in 1992 from person who did assume the original VA loan and passed this assumption to me. I have no VA Status nor eligibility and did not live here in 1987. This will be SUDDENLY FORECLOSED ON Tues sept 30 2011. I never signed this note however I do have the paid off note since 2002 that was really signed by the man who took it out in 1987. It is not lost. The note they are using to foreclose on also has the same document dumber as the one original that I had the clerk of the city where I live affirm and certify as paid in full. Why can Countrywide receive a new note on a home after they sold this to BOA and I have been fighting with them since they aquired it ? Why would they need to do this in another state if they no longer have an interest in it? How and why would the Vet Admin affirn that the note was lost and verify that the lost note information was correct when it is not? Am I now a certified veteran? Why did I get a VA LOAN ? If I am a proud owner of this home that they want to foreclose on do I have a right based on their validation of this note to get paid rent from the mortgage servicer ,BANK or the Vet Admin for rental funds from 1987 until I really assumed it in 1982?

    I do not want any money from this horriffic course of events . I will happily sign an agreement with any attorney who will expose this wrong. I have so much fradulent data on this case that no one wants to help. I have even shown it to Congressman Wevv and Warner who both stopped it one time and then it comes again in a few months. I will share my store with Congressional Inquiry panel and do have proof. Mom just died and I am tired ……Attorney can have 95 percent of any settlement I want 5 percent . HELP ME PLEASE
    IT is very sad when you realize you are worth more to your children if you no longer are there. I am a widow

  102. Sir Even though I have ALL paid notes and everyone I talk to about this sees proof that Countrywide is about to illegally foreclose on my home where I have 2 disabled children I am not able to get help to fight them. I have no resources now to fight and suddenly this months new item is a completely fabricated lost note affadavit by a loan person in duval florida who submitted to clerk a paper stamped by the Vet Ad that my VA NOTE was lost and missing so they couuld receive a NEW note for a va loan in 1987 that removes all past trustees and places me as the originak 1987 VA loan purchaser , This note was filed for by countrywide in Feb 2011 in Florida . I live in this house in Virginia and purchased it in 1992 from person who did assume the original VA loan and passed this assumption to me. I have no VA Status nor eligibility and did not live here in 1987. This will be SUDDENLY FORECLOSED ON Tues sept 30 2011. I never signed this note however I do have the paid off note since 2002 that was really signed by the man who took it out in 1987. It is not lost. The note they are using to foreclose on also has the same document dumber as the one original that I had the clerk of the city where I live affirm and certify as paid in full. Why can Countrywide receive a new note on a home after they sold this to BOA and I have been fighting with them since they aquired it ? Why would they need to do this in another state if they no longer have an interest in it? How and why would the Vet Admin affirn that the note was lost and verify that the lost note information was correct when it is not? Am I now a certified veteran? Why did I get a VA LOAN ? If I am a proud owner of this home that they want to foreclose on do I have a right based on their validation of this note to get paid rent from the mortgage servicer ,BANK or the Vet Admin for rental funds from 1987 until I really assumed it in 1982?

    I do not want any money from this horriffic course of events . I will happily sign an agreement with any attorney who will expose this wrong. I have so much fradulent data on this case that no one wants to help. I have even shown it to Congressman Wevv and Warner who both stopped it one time and then it comes again in a few months. I will share my store with Congressional Inquiry panel and do have proof. Mom just died and I am tired ……Attorney can have 95 percent of any settlement I want 5 percent . HELP ME PLEASE
    IT is very sad when you realize you are worth more to your children if you no longer are there. I am a widow

  103. I filed a complaint against Bank of America/Countrywide with the OCC. They closed my file and told me that the bank does not have to provide me with ANYTHING, so don’t waste anyone’s time by filing a QWR (qualified written request) and that all this was my own fault and doing and i should just give up this stupid fight and take responsibility for my own actions. She told me all this “MERS” and “robosigning” stuff i’ve been reading about is just a bunch of air and not real. she told me she makes HER mortgage payment each month and she will not use this office to help me get any records or ANYTHING to help assist me in getting my “home for free”. She said all you “Countrywide-type” people should just quit your crying and get over it! i couldn’t believe it….i thought i was talking to Bank of America, not the OCC! They would help with a “modification”, but anything else….my own fault and get over it! I guess she is all for giving the banks money to fix a mess THEY created, but not for giving the money to the deserving homeowners whose lives have been turned upside down by this nightmare! My husband is ill and has a feeding tube, i’ve got 2 children at home and one leaving for Afghanistan in the Air Force on Sept. 11th (yes, 9/11). So, needless to say, i do not have money for an attorney and am doing my best to try and fight this “thing” myself. I thank you for the wealth of information on your site, but i still have not found anyone who will actually LISTEN to me (at Bank of America) so i can get this resolved….researching Quiet Title right now……

  104. Hello Ralf,
    If is called supersedeas bond. Here is legal tactic worth discussing with your attorney.
    File a motion to stay proceeding pending appeal. The judge will likely deny the motion. Then file an appeal on the denial of your motion for stay; that will stay the proceeding and give you some breathing room.

  105. Have any one heard of posting a bond in order to appeal a case in a higher court,in my case my lawyer and i ,we are appealing my case due to a lot findings on all the paper work done by Florida Default Law Group,they should be call crooks,and after a couple of hearings Judge William Thomas,in Miami Fl,took the decision to give me the opportunity to post a bond of 389,000 dollars in a property that right now is only worth 144,000 dollars in order for us to proceed with the appeal. All bonds companies out there have the requirement of 100% collateral or credit letter from a bank,in order to get any of those you good credit or money,which i don’t have,basically what it is a CATCH 22,to get you out the system and in that way the crooks behind the scam get away with everything,right know i think our judicial system suck and smell really bad and i think there is not that real justice portrait out there to the rest of the world from our great U.S.A.

  106. I’ve researched & am unable to find an answer on this. We refi back in Dec. ’09 & both we & our son are on the deed. Son has 10% ownership on deed & NEVER has been on the mortgage, however, when we refi’d the notary for the title co said I had to sign as the guardian of the est. for my son under “co-borrower” for the SOLE purposes in securing his name on the deed & he would NOT be responsible for the mortgage. I was hesitant & said I want to ensure that his name is only on the deed & not the mortgage, she assured that this is the way it’s done. Hmm…

    I noticed in the county records, that the mortg/mers lists only my husband and I, however, I signed as guardian for my son’s estate as the 2nd co-borrow. QUESTION: Did they trick me into making him accountable for the mortgage although all mortgage & stmts docs received list only my husband and I. ANYONE? Appreciate someone’s input on this. Thank you kindly.

  107. Just as you, Neil predicted back in 2008. Turns out there are major problems with paperwork. Whistle-blowers have come forward to substantiate major fraud. Just as with mortgages, many loans were bundled into securities, and the original documentation is faulty, has gone missing, or was intentionally destroyed. Enter the “attorney liaison.”

  108. My name is Wayne Williford and I am a victim of a loan mod/principal reduction scam. I was contacted in Sep 2010 when the Notice of Default was filed in the San Bernardino County Recorder’s Office on my primary residence at 5016 Snowberry dr Fontana, Ca 92336. The company that contacted me was Goldenkey Financial Services at 255 E Broadway Glendale, Ca contact person Daniel Hernandez (818)536-7442 and (213)804-2165. Others there that were involved in the initial meetings and instrumental in the agreement process were Fabian Ramirez and Alex Munoz. We did not know the process at first we were only told a generic outline of events of how the principal reduction program worked. We later found out that they were working with Qubelink Financial Services at 255 E broadway Glendale, Ca. Initially, we worked with Dante La Madrid dante_lamadrid@yahoo.com (no known telephone #) and then later Ricardo Ligad (818)207-5264 rick@qubelinkservices.com. We told that the fee was approx $5000 per house to be involved in the program, but we had two houses the other is 26295 Bogoso Lane Moreno Valley, Ca 92555 and we received a discount and paid only $6000 for the both.

    The process officially began in Oct 2010. We were fast approaching the Trustee Sale that was on Jan 10, 2011. They assured me that they were taking care of it and all was well. It wasn’t, the sale took place as indicated by a Trustee Deed that was filed at the San Bernardino County Recorder’s Office on Jan 14, 2011. Goldenkey then put us in contact with Orlando Vera out of 7801 Telegraph Rd Montebello, Ca (562)522-8233. My wife was negotiating all the details with them because I was in Afghanistan at the time. Orlando explained that the sale was illegal and that they could get it reversed and if they did it would cost $3950. He elaborated in extent on his workings with minorities and lower income families and explained that he had been taken advantage of by them by working ‘Pro Bono’ in exchange for a payment plan. He was here to help and knew people that ‘Get it’ (reference to the mortgage industry defrauding Americans). They came back with an emphatic ‘We did it, we got the house back’ and we promptly paid. All the meanwhile, my wife was going back and forth from Fontana to Glendale to sign documents that Qubelink was preparing and filing or something.

    Shortly after I came home from Afghanistan on March 30, 201, we were served with an Unlawful Detainer from Aurora Loan Services Attorneys. We acted quickly and got with, at the time I thought was our attorney, Orlando Vera, who said they were anticipating this move and began some motions. We were asked to pay for these extra services $660 for court filings, $1250 for services, $950 for services and another $1250 for services. All the time I was in contact with them and trying to ascertain the status of our case and get copies of the work they had done. I only received documents that were filed on our behalf that were clearly forged with mine signature and my wife’s signatures. We also received random copies of emails between him and several people.

    Michael Tucker, paralegal, owner of APS admitted to the forgery because of exigent circumstances. As for the trustee sale reversal it was later put together by myself that Samuel Torres DRE#01743410 of Miracorp Properties 2101 E Fourth St Santa Ana, Ca 92705 setorres1@gmail.com (714)721-8518 was involved and instrumental in attempting to get the trustee sale reversed. He along with Orlando Vera and his associates placed my property, 5016 Snowberry Dr Fontana, Ca 92336, in a Bankruptcy filed by Deborah Ann Salas on March 25, 2011 Case *:11-bk-10166-TA. In the BK filing it states in Item 3.a.(2)(d), Page 3 that on Jan 7, 2011 a Grant Deed was recorded in the San Bernardino Country Recorder’s Office, where Wayne L. Williford and Janet Williford, Allegedly, transfered 100% interst in the property to Deborah Ann Sala as a gift for no consideration. I never signed such a document and nor can I find it online at the San Bernardino County Recorders Office. I also received a letter from Orlando Vera that I submitted for my background investigation for employment to answer for my credit issues. The letterhead was an attorney named Gary Jones at 1110 Roosevelt Irvine, Ca (949)732-1000 website http://www.universallegalnetwork.com who, I believe, is under investigation for misconduct. When I attempted to contact this agency I was emailed by a Leo Delgado (323)830-2832 leogoldenkey@gmail.com who claimed he knew of Orlando Vera, but did not know anything else. When I researched Leo Delgado I found a case where he was sued by RJCProperties International at 18100 Valley Blvd La Puente, Ca 91744 (626)854-2616 and lost. During my research I found a possible connection between David Alan Tika,l who was just indicted for loan mod scams, and Orlando Vera. I believe there is collusion between these entities in order to defraud homeowners in loan mod and principal reduction programs.

    I have been strung along by these entities for almost 9 months. We are facing a UD hearing on June 10th, 2011 at the San Bernardino County Superior Court in Fontana. If we lose this case we will be evicted by the San Bernardino County Sheriff’s Office. I am currently a military contractor, former ICE agent, US Army veteran who supports my wife, 3 children and my mother (who lives with us).

    I have many documents and other information to support everything I have written to you. I am currently working again in Afghanistan and contact will primarily be through email. My wife is semi familiar with everything and she may be reached at 951-867-1378.

    Thank you,
    Wayne Williford

  109. My name is Elaine, I live in Ireland. Iv written to luminaq asking for direction and I know that American law has no juristiction over here, im very much alone in what im trying to do to help save our home from the clutches of a subprime lender. Having read loads of info on Mr Garfields site iv managed to find the equivalent statutes, codes and laws relating to lending in this country, but im finished, as there is no hope over here for me to fight the good fight like all of you over ther can. There is no one to do secutitisation reports, no one who is remotely familiar with securitised mortages. Luminaq were polite and answered me saying its not their jurisistiction and good luck with my efforts, but I saw Neil Garfield as my hope too, just like you over there. Im heartbroken too say the least, im without hope to save my home . I even went as far to look up doing a law degree , becaube I found out that here in Ireland lawyeres can do a 6mth course with an organisation to ger their qualification to pass either the California or New York state bar exams. I saw in our local paper that a girl in our town had done that and now she is dual qualified to practise law both here and in the states. In 2002 at 35 I went back to school to get an Honours degree in psychiatric nursing and id have no quams in going a law degree now to save our home if I could, but time isnt on my side . Here in Ireland im going to loose my home because no one will listen to me. Mr Garfield will never see my emails because they are screened by his assistants, who with the best intensions in the world decide what is for his eyes and what is not. But you know something Mr Garfield could help indirectly those of us in Ireland with securitised mortages if on his list of lawyers who get it was included dual qualified Irish lawyers who had taken the American state bar exams. Im going to loose everything and i dont think i will be able to hang around for Nua

  110. Thank you, Esteemed Counselor, for mentoring this and many hundreds of foreclosure defense activists who’ve gone on impassioned to man the ramparts and carry aloft the torch of social and economic justice.

    ALLAN
    Miami & Boston
    CLVU (City Life/Vida Urbana) Boston, MA
    BeMoved (at) AOL (dot) com

    Remember this from 2 years ago?
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    Happy Birthday to our Founder – Neil Garfield
    Posted on February 20, 2009 by Neil Garfield

    Homeowners who have been equipped to fight by this blog

    OR

    Lawyers That “Get It” who have gained new clients and won cases

    Perhaps we might honor this man’s efforts at shining the light of truth on the fraud that is being perpetrated on the American public and his efforts to rally and educate competent lawyers by clicking the link at the top of the front page and filling out the donation form today. There is still much work to do we have only begun the fight.

    Or post a comment of thanks here…

    Happy Birthday Neil

    Livinglies staff

  111. 28 Responses

    1.
    michele, on March 11, 2011 at 9:12 pm said: Your comment is awaiting moderation.

    you are paying your monthly payments on time everything is great.
    one day you find a notice of default taped on your door or inside your mail box.(never seen the person whom delivred it.) nod states you are behind on your payme ts and if you dont pay per say $25000 tour home could be sold at our auction. stamped by a notary republic whom is a good friend of the familys…..they may ask you to pay the full amount of the originall balance.
    so you are streesed you know your payments are current and you still worry about the foreclosure .
    the phone rings its the nice man from TILA who is looking out for you (but he really works for the bank)so becareful .he wants to help you stop foreclosure on your home and offers you a loan modification in wich stops your foreclosure and re does the loan this is only for them to actuelly get the note that they dont actually have in their possession now…… they tell you that you dont want to go to court the banks got billions ! and you have nothing dont buy this they dont want to you to take the bank to court because everything comes to light in trial….and in this state of Ca its a felony to forge documents and committ fraud and so on….
    the vice president of ahms decides he wants a 5 million dollar castle made from bricks in texas and he needs some money so he prints a nod pays strangers to sighn them for 10 bucks and sends them to 50,000 homeowners and demands thousands or your home will sell at their auction……and send them to the po box listed on this nod. so he collects and pockets your hard earned money and gets his beautiful home in texas . while you continue to work hard and pay your bills wich include 2550.00 a month to you lender …
    one year goes by everything is great your paying your mortgage on time then one day you find a nod on the door in the mail box stating you are in default and if you dont pay $25,0000 your home will be sold at thei auction(and i emphasize when i say their.)or they may demand the full amount of the loan ……. this time you investigate and search day night to find this out ….. the servicer sending you the nod does not own your note…. & getting the loan modification is just tricking you into signing your home over to them and all the payments youve been working hard to pay have been pocketed and split among these predatory whatever there called (not human robo mabey?) so now you cant go to court and litigate because the loan mod gave them the note….. my suggestion would be this: take your money inveast in a lawyer who will file quiet title so you come out free and clear ,,,,,if you keep making your payments you will always go into foreclosure the inevitable is this you will never own your home , when the ceo from some lending co wants to purchase his 5 million house he will pick and choose your home to forge and fake with his good friend of the familys notary send thousands of nod out to the american hard working folks whom become so gullable when they recieve a nod and most will pay, over and over and over till you have no more money thats when they will take your house after they have stolen all your money the last thing the bank wants is your home???have you heard this before??? please trust in the lord because he will guide you in this prossess of the evil lenders that will steal 180,000n from a man who has brain damage to fill their greedy pockets without remorse……. it will not be long that they go to thee place that they will enjoy eternity . God bless america and the middle class trust in the lord and nothing can harm you GOOD LUCK IN YOUR FIGHT …….

  112. If passed by the house what will AZ SB1259 do for current trustee sales, since there is no provision on being retroactive? Will I be able to file suit once the house passes this bill? My home is set to foreclose at the end of March. So, obviously #1 & 2 of the provision did not occur. How will this help me?

  113. WANTED 40 Aurora Loans
    Forty (40) Borrowers needed nationwide.
    To Add Aurora Loan Services, LLC., as a Plaintiff to the 50 State, Ronald v. Bank of America, Mass Joinder law suit. ( US Dist. Court, # CV-10-5740-R.

    Also Offering To Stop Foreclosures Sale with “No Up Front Fees” with under VTSD program.

    Call for free consultation:

    Artie Goldman
    678 235-4995
    Gold8165@boxbe.com

  114. Verified Trustee Sale Delay

    The Last Option
    Guaranteed Service
    No Up Front Fees

    It is well known that banks are illegally foreclosing on homeowners in Trustee States since the foreclosure process is lightly monitored by government agencies.

    In Judicial Foreclosure states, a judge reviews the legality of the foreclosure proceedings to ensure the homeowner is being protected against greedy lenders and yet still the lenders are not properly following the foreclosure laws correctly.

    In Trustee States, lenders employ a “third party” trustee company to replace the legal function of a judge and orchestrate the foreclosure process. If banks are not legally foreclosing when they know a judge reviews the case what do you think they are doing when they only have to go through a trustee that they pay? Our service requires the trustee to verify a comprehensive list of issues related to the legal nature of the foreclosure proceedings enacted by the lender, which as a byproduct, you as the homeowner still retain full ownership of the property and live there comfortably. Since the trustee assumes the liability in auctioning the property, they will not foreclose on the property if there is a potential violation pointed out to them prior to the Auction Sale Date as they could face sanctions and ultimate lose their license. Trustees are incredibly busy and generating huge profits so they will continually postpone the sale date with adequate time to research and respond to the issues raised by our company to protect themselves.

    Program Highlights: Legal foreclosure delay strategy

    Your lender is never contacted so you can still modify your loan or short sale your property.

    You can:

    *Stay in your home for 6 – 40 months after Notice of Trustee Sale has been posted
    *Avoid bankruptcy on your credit, less costly than BK attorney’s fees
    *Experienced professional trustee knowledge working for you, not against you
    *No title transfer (never transfer your title to anyone else to delay a sale, scam alert!)

    Our Trustee Verification Delay Program is designed as another option for homeowners that are considering bankruptcy, loan modification or short sale as a way to delay the foreclosure auction. Some of our clients have been denied for modification or a short sale and are out of options. Some are still trying to get approved for a Modification or short sale and just need more time.

    Other clients realize that they are so far upside down on the property and it is not worth paying the high mortgage payment and would rather live in their home than less than what an apartment would cost to rent. Even renters can utilize our services to stay in the property longer with less expense than renting. No matter what your reason for delaying your foreclosure, we can help.

    Bankruptcy Is Not The Answer……

    NOTICE: DO NOT SIGN OVER A SMALL PORTION OF YOUR GRANT DEED TO SOMEONE IN BANKRUPTCY! Companies are approaching homeowners offering a delay product involving signing over 1% or 1/16th interest in the property to someone
    who is in bankruptcy. This is EXTREMELY illegal. Bankruptcy Fraud!

    Amount of Delay

    Delay Time Chapter 7 Bankruptcy (21 – 45 Day Delay) – Banks are very aware that many homeowners are filing Chapter 7 Bankruptcy to delay their foreclosure. When filed, a Chapter 7 will put an automatic Stay on all of your debts. That means that no creditors can proceed with debt collection. Therefore, immediately after the bank is notified of the filing they send their legal team to court to file a motion to lift the stay. Most banks are doing this so fast that the stay only keeps the homeowner in their house for 30 – 45 more days. As soon as the stay is lifted, your house is back on the auction block and you now have a bankruptcy on your record and likely will be calling HomeLife anyway.

    Chapter 13 Bankruptcy (21 – 60 Day Delay) – Similar to Chapter 7, when a Chapter 13 is filed it will stop creditors from collecting debts immediately. The difference is that Chapter 13 is the reorganization of debts. This will buy the homeowner a few more weeks, but the banks will still file a motion to lift the stay. Homeowners who are this delinquent are at a disadvantage in court against a valid creditor who has not been paid in an excessive amount of time. Again, as soon as
    the stay is lifted your house is back on the auction block and you now have a bankruptcy on your record.

    HomLife Delay Solution (6 – 40 Month Delay) – 3 months 15 days is the fastest any homeowner has lost their house in this program with the longest being 3 years and 4 months. You will not have a bankruptcy on your record
    and can still work out a modification or short sale while in our program.

    Bankruptcy

    Filing any type of bankruptcy will have very strong consequences. Homeowners who file just to prolong the sale of their house disqualify from filing again for 7 years (in a Ch. 7).

    Therefore, you are vulnerable for that entire period. What happens if there is some medical emergency that incurs tremendous bills? You will not be able to protect yourself against getting your wages garnished. No matter what the debt or situation, you are no longer allowed to protect yourself because you used your ‘free pass’ on your foreclosure, which could have been handled much differently.

    Also, many companies pull credit and might not hire a candidate with a Bankruptcy on their record. In today’s job market, can anyone afford such a big disadvantage?

    Federal Bankruptcy laws require that you complete your filing information and credit counseling courses no more than 45 days from initial filing date. If you don’t complete the filing the bankruptcy court will dismiss your BK, and the trustee can sell your property. So if you intention was to save your home, you only postponed the sale for 45 days. If your BK was dismissed you must wait at least 6 months before filing again.

    Financial benefits

    Chapter 7 Bankruptcy – this strategy will wipe the slate clean for people who qualify (qualifying for a BK is now tougher than ever). When approved, most debts can be released. This is a good choice for homeowners with a lot of unsecured debt (credit cards, personal loans…). Your mortgage is secured by your home, meaning that even after bankruptcy is filed they can still take your property. So the financial benefits only include removing unsecured debt.

    Chapter 13 Bankruptcy – Chapter 13 is the reorganization of debt. A judge will work with you and your creditors to plan out an acceptable repayment plan to all of them. Often the property will be removed from the BK as the delinquency is extreme and it is a secured loan. This is not a great option for homeowners looking to buy time.

    No Upfront Fees

    Call

    Artie Goldman
    Sr. Affiliate
    HomeLife Solutions
    678.235.4995 – Direct

    http://www.xtranormal.com/watch/8275556/

    http://www.homelifesolution.com

  115. Lenders ‘Foreclose’ Homes They Don’t Own

    In dozens of incidents nationwide, confused banks have ransacked properties that were either not mortgaged at all or were mortgaged by a different lender or were a customer of the bank in question but were current on their payments.

    For instance, Bank of America broke into Alan Schroit’s second home in Galveston, Texas, and turned off the power, allowing 75 pounds of salmon and halibut Schroit had caught on an Alaskan fishing vacation to spoil and create a reeking mess. Schroit had previously paid off the property. Schroit and the bank settled a lawsuit for an undisclosed sum.

    Critics of the mortgage process say these kinds of incidents are evidence that the mortgage foreclosure business is flawed and needs to be reformed.

    ”Every day, smaller wrongs happen to people trying to save their homes: being charged the wrong amount of money, being wrongly denied a loan modification, being asked to hand over documents four or five times,” says Ira Rheingold, executive director of the National Association of Consumer Advocates.

    Source: The New York Times, Andrew Martin (12/22/2010)

  116. Wells Fargo Settles Pick-a-Payment Suit
    Wells Fargo has agreed to settle a class-action lawsuit involving pick-a-payment home loans.

    The proposed settlement makes available at least $50 million in compensation for borrowers who lost their homes. The plaintiffs argued that these loans violated federal truth-in-lending laws because the documents didn’t adequately disclose the potential for the loan balance to increase if borrowers chose to pay less than the interest due.

    Wells Fargo also agreed to offer loan modifications to borrowers who still reside in their homes and are in default and others who are at imminent risk of default.

    The bank, which admitted no wrongdoing, said that it had already forgiven $3.5 billion in principal for pick-a-payment customers.

    Source: Reuters News, Dan Levine (12/15/2010)

    marcus@foreclosureProSe.com

  117. Judgment Reversed Due To Failure To Allow Discovery

    In Alvarez v. Cooper Tire & Rubber Company (4D08-3498), the Fourth District reversed the trial court’s judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery. The opinion began:

    Relevant evidence in civil cases — that is, the acceptable knowledge base of facts for the jury — is found in an aggregate of historical facts, data, information, objects and opinions that the law allows the parties to place before the finder-of-fact to decide the case. To assist the parties in assembling all the knowledge fairly needed to prove a cause of action or defense, the rules establish a pretrial process called discovery, which (as its name implies) is also meant to afford a means of apprehending that which they do not know. Hence, the process begins with a wide sweep, gathering many kinds of knowledge only possibly germane (if at all), yet capable of leading to admissible trial evidence. At discovery’s end, the accumulated knowledge is distilled into the evidence the parties can lay before the jury.

    When this discovery is not allowed to have its intended scope — for example, when one party is blocked from ascertaining and acquiring from the other party unprotected, relevant information and data that is admissible at trial — the sum of knowledge placed before the jury will be unfairly deficient, hence misleading. The whole structure of the trial will be faulty. The jury’s basis for resolving the facts will be tilted against the party denied that access. Trial then will be an expedition on an errant course. Because the possible factual base for the jury has been unreasonably curtailed peremptorily, a jury’s resolution of the facts will be unreliable, and its verdict untrustworthy.

    The opinion provided a detailed account of the specific facts at issue and why it was error to refuse the plaintiff the opportunity to conduct the discovery. The opinion then concluded:

    As we saw in the beginning, the apparatus of civil litigation has incorporated into its structure the right of all parties to discovery of facts, information and data involving the subject matter of the dispute. Denying one of the parties that discovery — especially as to essential evidence critical to proving a claim or defeating a defense — is a manifest injustice. Within the meaning of the harmless error law, the denial here was considerably prejudicial and perpetrated a substantial injustice on the plaintiff in this litigation.

    Upon remand, discovery will have to resume, governed by the holdings of this opinion. Proper and full discovery will then require a new trial, at which both sides will have the right to lay all their relevant, admissible evidence before the jury.

    marcus@foreclosureProSe.com

  118. Northern California_San Francisco Bay Area

    Chris Gardas
    Attorney At Law
    530 43rd Street
    Richmond, CA 94805
    Phone: (415) 407-4918 fax: (510) 778-1273
    chrisgardas@comcast.net

  119. GEORGIA RESIDENTS: Possible CLASS ACTION LAWSUIT. Help people who have been tortured by Bank of America. I too, am one of their victims. Lender placed flood Insurance, 5 months of intent to foreclose letters, they stole my insurance money to repair storm damage, they have sent about 12 people in all to my house to peep in my windows. they added stuff to my escrow, they paid taxes on property that has nothing to do with my loan. GUESS WHAT? I DID NOT DO A HOME MOD, NOR AM I LATE ON MY PAYMENTS!!!!!! Contact us we might be able to help you. sonya36767@yahoo.com dfg@guldenschuhlaw.com 706-295-0333

  120. Title Insurance: More Important Than Ever

    Understanding the tenets of title insurance is especially important considering the turmoil in the real estate industry.

    Title insurance is intended to protect the insured from improper titling, including defects in foreclosure proceedings, forgery, or impersonation or cases in which no title is legally conveyed. Other defects are partial, such as a neighboring fence or garage encroaching on the insured person’s property.

    The title insurance industry recently set down strict guidelines for when and if they will insure a title to a property on which there has been a foreclosure.

    The buyer should be equally vigilant, insisting on a 60-year search and paying for an owner’s policy as well as the lender’s policy that the bank will demand.

    Source: Washington Post, Harvey S. Jacobs (11/27/2010)

    marcus@foreclosureProSe.com

  121. Foreclosure Mess Leaves Some Buyers in Limbo

    An increasing number of buyers of foreclosed homes are finding that they can’t close on the property because the foreclosure — and the sale — is derailed by a problem with the foreclosure paperwork.

    “Many of these transactions will probably never close,” said Greg Rokeh, a manager of bank-owned real estate in Longwood, Fla., for Watson Realty Corp.

    Rokeh said he has about 25 pending sales that are tied up in the document reviews. He predicts that most of buyers will give up and purchase a different property.

    “We understand it is a huge inconvenience to buyers,” Freddie Mac spokesman Brad German said.

    Source: Bloomberg, David Henry (11/24/2010)

    marcus@foreclosureProSe.com

  122. Im going to cut straight to the chase, dont take this the wrong way because I really appreciate this site. But two things fail in everything that being presented.

    First, battling a foreclosure in a State where judges are ignorant or just believe in the old fashion, “Pay your bill or get out” will fail. Solid evidence doesn’t even get you far. Hawaii to be exact.

    Second, the key to a successful foreclosure defense lies in the real party in interest. A subject that has not been mentioned in quite some time. “Fannie Mae had to ratify Countrywides foreclosure in order for them to be successful”

    Third, if the real party in interest who is not identified, such as a Fannie Mae investor, and Fannie Mae ratifies for the servicer, they could be challenged and liable for fraudulent transfer after the property is sold. Fannie Mae clearly states on their website that the mortgages go into a MBS trust and are not a Fannie Mae assets.

    So why are these subjects not being touched on? The chain of title, which more than likely is held by MERS is a fraud itself.

    Has anyone here ever challenged or sued Fannie Mae for illegally gaining possession of their home after the sale? Of course not, these attorneys who supposedly get it, don’t really get it. Simple. Unfortunately for me, I didn’t figure this out until after the sale which mooted anymore action.

    But I will be the first one to sue Fannie Mae in the next few weeks. Mark it down……

  123. Foreclosure Foul-up: Tracking Down Those ‘Lost’ Mortgages

    By STEPHEN GANDEL Monday, Nov. 29, 2010

    One of a million foreclosures this year.
    Anthony Suau for TIME
    PrintEmailReprintsFacebookTwitter

    MORE

    Trevor Douglas, 54, may soon lose his Orlando house. Sure, Douglas hasn’t paid his mortgage in more than two years, which is what a Bank of America spokesperson tells me “is important to remember.” It is. Still, if it happens, I will feel partially responsible. I helped push Douglas closer to eviction.

    Like many other home loans, Douglas’ IOU was bought and sold numerous times and finally packed into a bond. So when his foreclosure notice finally arrived, the entity trying to kick him out was one he had never heard of, something called GSAMP 2005-HE3. Worse, GSAMP said it had lost the original document — called a promissory note — to prove they owned his loan. Douglas hired a lawyer, who got the foreclosure put on hold. And that’s when I showed up. Much of the ire focused on the banks recently has been on their use of robo-signers — low-wage workers hired by banks to witness and sign hundreds of thousands of foreclosure notices without verifying that the grounds for the evictions were valid. On Thursday, a Federal Reserve official told lawmakers on a House Financial Service subcommittee that U.S. bank regulators are conducting a review of the banks’ foreclosure practices. In hundreds of thousand of cases, the promissory note that proves a bank owns a borrower mortgage is now gone. Vanished. Some borrowers may walk away scot free. In other instances, banks may be forced to dramatically reduce what a borrower owes. Many foreclosures have already been halted by the courts or by the banks themselves. Still, bank officials say, even if they are missing the original promissory note, they have the paperwork to prove they own the mortgages.

    (See pictures of Americans in their homes.)

    Just how bad is the problem? TIME dug into the mortgage of one troubled borrower. What we found suggests that many promissory notes are not lost. In an effort to rush homeowners to foreclosure, and hide damaging information, bankers’ have needlessly created a huge legal mess that once again questions the financial industry’s credibility and ethics. “They [banks] don’t comply with the law when they’re taking people’s homes,” says Michael Olenick, who owns Legalprise, a legal research firm.
    Douglas’ mortgage broker got him a loan from subprime lender Fremont General, which before it went bankrupt in 2008, was based in Brea, California. In mid-2005, Fremont sold the loan to New York-based Goldman Sachs, which packaged it up with other loans and sold it off to investors. In June, Iris Owens, an official in the servicing arm of Bank of Amerca, signed an affidavit attesting that after a “diligent search,” Douglas’ original note could not be recovered. But even without the bank’s internal record it took me about four hours to find Douglas’ loan.

    (See pictures of TIME’s Wall Street covers.)

    Where is it? About five miles east of downtown Minneapolis, in a warehouse owned by Wells Fargo.

    A simple search of public documents on the Securities and Exchange Commissions website was able to produce the address and telephone number of the building it was in. Bank of America now concedes it made a mistake. Instead of calling Wells Fargo, an associate in Bank of America’s mortgage-servicing division requested Douglas’ note from Deutsche Bank, which runs the mortgage trust Douglas’ loan is in, but is not the document custodian. Wells, as the SEC documents say, has that job. What’s less clear is why Deutsche didn’t tell the associate to call Wells or why someone at Bank of America didn’t look up the same SEC filing I did. Instead, Owens, based on the information from her associate and doing no checking of her own, signed the lost-note affidavit. Douglas’ loan had officially disappeared.

    (See 10 big recession surprises.)

    In early November, based on my research, Bank of America retrieved Douglas’ original promissory note from Wells Fargo. The bank spokeswoman says it plans to soon file the note with the court. Bank of America says it is reviewing Douglas for a loan modification. But if he doesn’t qualify, now that Bank of America has the original note, Douglas is sure to lose his house. If Douglas’ mortgage is any indication of what’s out there, while embarrassing for the banks, it suggests the cleanup will be less costly than feared. Still, it’s not going to end soon. Multiply the four hours it took me to find Douglas’ loan by 400,000 — one professor’s estimate of the number of missing notes. Banks will be at this for a while.
    This is an abridged version of an article that appears in the Nov. 29, 2010, print and iPad editions of TIME magazine.

    See 25 people to blame for the financial crisis.

    See the top 10 bankruptcies.

    Read more: http://www.time.com/time/magazine/article/0,9171,2032110,00.html#ixzz16SvpzwNo
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
    ALLAN
    BeMoved@AOL.com

  124. The Long Process of Foreclosure Gets Longer

    The foreclosure process is getting longer and longer. According to statistics from LPS Applied Analytics:

    · Delinquent loans in five judicial-process states spend more than 500 days in the foreclosure pipeline with the average time in process at 358 days, a week short of a full year.
    · In the case of loans where the borrower is delinquent for 90 days or more, on average no payments have been made for 16 months.
    · States that take the longest time to process delinquent loans are Florida and New York among the judicial process states, and Maryland, California, Virginia, Nevada, Massachusetts, Rhode Island, and Arizona, among the non-judicial states.

    Source: Bankrate.com, Marcie Geffner (11/17/2010)

    marcus@foreclosureProSe.com

  125. Matt Taibbi: COURTS HELPING BANKS SCREW OVER HOMEOWNERS | Rolling Stone Politics
    Source: rollingstone.com

    THIS IS AN EXCELLENT EASY READ!

    Mike Taibbi writes an insightful watershed piece which hopefully will bring this grave, growing, egregious injustice – experienced with unspeakable pain at the grassroots – to the Nation’s attention so that attorneys general, governors, legislators, the judiciary and the Obama administration CAN LOOK BACK and end this pernicious and spreading homeowners’ “Katrina” that is sure to severely damage this nation, the working and middle class, and its institutions for generations to come unless it is fully and finally addressed.

    We are reminded of Thomas Jefferson’s on spot concern “If the American people ever allow private banks to control the issue of their currency, first by inflation, then by deflation, the banks and corporations that will grow up around them will deprive the people of all property until their children wake up homeless on the continent their fathers conquered. The issuing power should be taken from the banks and restored to the people, to whom it properly belongs.” – Thomas Jefferson, Letter to Treasury Secretary Albert Gallatin (1802)

    RSVP

    ALLAN

    BeMoved@AOL.com
    Carrier & Ives Move & Relocation Management
    CLVU (City Life/ Vida Urbana)

  126. I own a home in North Carolina, the property was 100 + % financed. the property is worth close to half what my mortgage is. I am trying to get BOFA to do a deed in lieu. they accepted, then asked me to list for a few more months. i did and they have not responded to me in months, my credit is getting killed, and i get no reponse from them. can i find an attorney who can help me get out of this mess???

  127. #

    To everyone who is a NEWBY, GREEN PEA, freshly defaulted, just unemployed and trying to head a problem off at the pass, OR you really, really believe that you can somehow, someway, make a good-faith effort to WORK THIS OUT with a mortgage servicer who is handling your loan: FUGGETTABOUTIT! There is no “good faith” in anything the banks are doing. NONE! Don’t try to negotiate, don’t believe anything you are told.! THERE IS NO HELP FOR HOMEOWNERS. Let me illustrate.

    I’m about 30 minutes into a phone call with an “Office of the President” representative (sounds impressive enough, huh? “I’m getting somewhere now” I think to myself, for about 3 seconds). As the call gets longer, the music-on-hold gets more and more “low key” (good thing, because I almost rubbed the fur off the top of the cats’ head I was so, you know, anyway)……. we’re just about to hear that “Windham Hill Sampler” music that makes you feel like committing suicide, and then……..

    Hello, Sir? Thanks for holding, I appreciate your……..

    “Madam,” I said, “please, before we go any further, please don’t lie to me anymore”

    I didn’t lie to you!

    “Well, you just told me there was no insurance on that loan.”

    There is no insurance product on this loan.

    “Yes there is! It’s in the SEC statements. It’s for 35%. You have been dinging the mortgage insurer since the December 06 notice of default!”

    WELL, YOU’RE NOT PAYING FOR IT!

    _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _
    LET ME REPEAT! I know people like you. Mamby pamby, always “nice” to everyone, you want to believe in your fellow man, pure as the wind-driven-snow, you go to church, you’re paying your bills, but the budget just got too tight. If you could just get them to drop a little…., you know, for awhile. Things will get better and then……….., then maybe we can go back to……..

    STOP! STOP RIGHT THERE! THINGS WILL NOT GET BETTER! THAT’S NOT THE SUN ON THE HORIZON, THAT’S THE NEIGHBORHOOD 2 MILES AWAY BURNING DOWN!!!!

    Nothing will be done. It’s in your hands.

    THAT’S IT A-MAN. I’M GOING ALL-CAPS FROM HERE ON OUT!

  128. Foreclosure Delays Provide an Underground Stimulus

    The delays in the foreclosure process are giving what some people are calling a “stealth stimulus” to defaulting home owners who continue to live – or even rent out – their homes.

    The subsidy is worth about $2.6 billion a month, according to an analysis by the Wall Street Journal. That’s about 0.25 percent of U.S. personal income and equivalent to what top earners receive from the Bush-era tax breaks.

    Some defaulters are banking the money in hopes they will get a mortgage mortification, but most are just using the money for things like food, car payments, etc. Others are renting the properties out and making a few dollars.

    Source: The Wall Street Journal, Mark Whitehouse (11/01/2010)

    marcus@foreclosureProSe.com

  129. Title Insurers, Lenders Haggle Over Indemnification

    The four major title insurers that insure 90 percent of the mortgage market are pushing for an indemnification clause in future contracts that places most of the responsibility on banks. Banks are rejecting this proposal.

    The title industry says a blanket agreement is necessary to keep sales moving, but the trade organization, American Bankers Association, insists that the market has operated just fine without these kinds of clauses and is arguing for a limited agreement that would allow for indemnification only when the market demands it.

    In the long run, it is investors that may call the shots. Shares in the segment are down from 3 percent to 7 percent this year while the overall insurance index is up 10.3 percent this year.

    “There is a lot of uncertainty about what’s going to happen, which is why shares are where they are,” said Jerry Bruni, who owns Fidelity National stock and oversees $425 million at J.V. Bruni and Co in Colorado Springs, Colo.

    Source: Reuters News

    marcus@foreclosureProSe.com

  130. FDIC’s Bair Fears Foreclosure Litigation Fallout

    Lawsuits from borrowers booted from their homes by foreclosure could keep people from buying foreclosed homes, Sheila Bair, chair of the Federal Deposit Insurance Corp., said Monday at a housing finance conference.

    Bair called for foreclosure to be a “last resort” after all legal and procedural requirements had been exhausted.

    Bair says she fears that foreclosure litigation would “ultimately be very damaging to our housing markets if it ends up unduly prolonging those foreclosures that are necessary and justified.”

    Source: Associated Press

    marcus@foreclosureProSe.com

  131. Stern’s DJSP announces 300 layoffs

    South Florida Business Journal – by Paul Brinkmann
    Date: Monday, October 25, 2010, 10:45am EDT

    Fallout from the national foreclosure crisis continues to impact companies associated with foreclosure attorney David Stern – one of the leading foreclosure attorneys in the nation.

    His law firm has filed tens of thousands of cases on behalf of lenders and mortgage agencies such as Fannie Mae. The firm has been under investigation by Attorney General Bill McCollum for allegedly creating false documents in foreclosure cases.

    Here’s the latest: The company that conducts support work for Stern’s law firm, Plantation-based DJSP Enterprises (NASDAQ: DJSP), now admits to about 300 layoffs since “recent developments” began.

    I first reported that Stern’s law firm and affiliated companies were laying off hundreds of people on Oct. 12. At that time, Stern’s attorney, Jeffrey Tew, said there were fewer than 100 layoffs from the law firm, and they were temporary positions.

    Another departure from DJSP’s board of directors was announced Monday – that of Mark P. Harmon, a Boston-based foreclosure attorney. We reported on the Oct. 19 departure of several officers and that Stern had relinquished the chairmanship of the board.

    DJSP’s stock slipped briefly below the crucial $1 mark last week. The stock was up 7 cents, to $1.11, in Monday morning trading. NASDAQ’s policy allows it to delist stocks that fall below the $1 mark for 30 days.

    Stern’s law firm has struggled with declining case volume since major lenders started putting a hold on foreclosure action in September, according to DJSP’s news release about the layoffs. Mortgage giants Fannie Mae, Freddie Mac and Bank of America have stopped sending cases to Stern’s firm. The public company, DJSP, is dependent on paperwork processing from Stern’s law firm.

    The law firm has defended itself in court against McCollum’s subpoena, calling his investigation overly broad and illegal. But, a Broward County judge has ruled in favor of the subpoena.

    In broader related news, The Wall Street Journal reported Monday that Bank of America acknowledged some minor mistakes in foreclosure files as it begins to resubmit documents in 102,000 cases. The paper also reported on its website that Federal Reserve Chairman Ben Bernanke said the agency was “seeking to determine whether systematic weaknesses are leading to improper foreclosures.”

    marcus@foreclosureProSe.com

  132. These banksters must think we are idiots.

    ——-
    Foreclosures Had Errors, Bank Finds

    Even as Bank of America begins to restart foreclosure proceedings in 23 states on Monday, the bank confirmed that it had discovered errors, including incorrect data and misspelled names, in the paperwork it has reviewed.
    For weeks, Bank of America has insisted its review had not turned up any serious errors, and emphasized that it had not found a single case where a homeowner was facing foreclosure in error.

    But on Sunday, the bank revised its fairly combative public stance. Bank of America had found errors, but only in a tiny number of cases, Dan Frahm, a spokesman for the bank, said late Sunday.

    “These are examples of exceptions that were caught early in the process through control steps,” Mr. Frahm said. “They do not reflect exceptions in final documents that are being resubmitted to the courts.”

    Bank of America and several other institutions, including JPMorgan Chase and GMAC Mortgage, halted foreclosures in late September and early October amid a growing controversy over problematic documents, including so-called robo-signers — bank employees who say they signed foreclosure affidavits without reviewing the documents. Other foreclosure cases were initiated with missing documents or incorrect information.

    As a result of its review, Bank of America has combined signing and notarization into one step, unlike in the past, when they were separate tasks. “We felt there was greater risk for error before,” Mr. Frahm said.

    On Sunday, Bank of America maintained that no homes were foreclosed in error.

    “The basis for our foreclosure decisions has been accurate,” he said, and he added that the bank would work to correct any problems.

    Initially, Bank of America imposed the freeze in 23 states where judicial approval is required before a foreclosure can go ahead, and the bank extended it nationwide on Oct. 8. But on Oct. 18, the bank confirmed foreclosures would resume in the initial 23 states and declared it was confident in the procedures it had in place.

    “We did a thorough review of the process, and we found the facts underlying the decision to foreclose have been accurate,” Barbara J. Desoer, president of Bank of America Home Loans, said at the time. “We paused while we were doing that, and now we’re moving forward.”

    Since the controversy began, Bank of America shares have been pummeled and the company has repeatedly sought to reassure investors that it does not a deeper financial threat from the controversy.

    What’s more, it is facing pressure from large institutional owners of troubled mortgages, including the Federal Reserve Bank of New York, Pimco and BlackRock, to buy tens of billions in bad loans back from them.

    That has forced analysts to rethink earnings expectations, with some warning that the mortgage mess represents a long-term drain on an industry that only recently has gotten back on its feet.

    As the nation’s largest bank and the servicer of roughly one in five American mortgages, Bank of America is closely watched by the rest of the industry, and its decision to resume foreclosures was seen as an attempt by the big banks to put the growing furor behind them.

    Still, it is far from certain that banks will be able to calm the public controversy easily or quickly. Aside from the robo-signers, lawyers for homeowners have found evidence that documents were lost or even thrown out. Armed with this information, lawyers are gearing up for protracted court battles.

    Bank of America’s troubled mortgage portfolio is a legacy of its July 2008 acquisition of Countrywide, a subprime mortgage specialist that was among the financial institutions with the most troubled loans, as well as its January 2009 merger with Merrill Lynch, which was a major player in the business of taking mortgages and transforming them into securities to be sold to investors.

    In addition, as the beneficiary of two capital infusions by Washington under the federal bailout, Bank of America was among the banks most dependent on Washington to help survive the financial crisis, receiving $45 billion from taxpayers. Of that, $20 billion came in emergency aid after Merrill’s losses were revealed.

    That money has been paid back, but the bank remains eager to maintain good relations with the government, and has emphasized that restoring its public image was a crucial factor throughout the foreclosure controversy.

    Last Wednesday, Bank of America reported that operating earnings in the third quarter hit $3.1 billion, in contrast to a loss a year ago.

    marcus@foreclosureProSe.com

  133. The Nation: Letting The Banks Make The Rules

    Kai Wright

    Friday, October 22, 2010 at 8:26 AM

    As the nation deals with the fallout from the housing crisis, some of the policies that contributed to its downfall remain in place. Kai Wright of The Nation argues that as long as banks are allowed to write their own rules on forclosure, the same practices that brought down the housing market will continue.

    Many homeowners are losing their homes, despite a 10-day freeze on foreclosures by Bank of America and other large banks.

    Many homeowners are losing their homes, despite a 10-day freeze on foreclosures by Bank of America and other large banks.

    Related Articles

    Home Foreclosures Continue Despite Freeze

    Delays over questionable paperwork have not eliminated the threat of foreclosure for homeowners.

    A year and a half ago, I sat in the office of Jim Kowalski, a prosecutor turned defense attorney in Jacksonville, Florida, listening to him describe a crime that was, by then, known to anyone who’d dealt with the foreclosure process.

    Kowalski worked with a small cadre of local attorneys trying to slow the area’s onslaught of foreclosures. In the aggregate, they were monstrously outmatched by banks with subcontractors of subcontractors dedicated to removing families from homes quickly. But on a case-by-case basis, they stole the advantage because they knew the mortgage industry’s secret: it had buckled under the weight of its own corruption. All you had to do was force the banks’ empty hand, and you could keep a client in her home.

    The biggest tell came over list-serves that connected legal aid outfits and small private practices overwhelmed by the sudden demand for foreclosure defenses. As lawyers like Kowalski compared notes on the three big banks whose servicing arms controlled nearly half the mortgage market, they noticed case after case of irregularities. Once they forced the servicers into court, the pattern became clear: everybody involved in the securities process had cut so many corners in pursuit of record profits, had operated with such disregard for the many steps that ensure a safe and sound mortgage market, that they couldn’t even show who owned the debt.

    In April 2008 Kowalski deposed a Citibank residential lending employee, Tamara Price, whose name had recurred on foreclosures. Price described a system for creating bogus mortgage assignments that was baldly deceptive, all the way down to the fake “vice president” title with which Price signed her name. The case was exceptional only in that Price was on record. Already, scattered judges had reached their wits’ end with the legal corner-cutting and were throwing out foreclosures. Lawyers in the trenches clung hopefully to the trend; most national advocates quietly said it would never prompt the sort of federal leadership that the foreclosure crisis demands.

    More than two years and millions of foreclosures later, a deposition similar to Price’s — from a GMAC employee who admits to “robo-signing” 10,000 sworn documents a month — has revealed the fraud to the whole country.

    Federal law enforcement officials have launched an investigation that could lead to a Justice Department suit, though both the probe and the potential suit will certainly be lengthy. In the meantime, some investors in mortgage-backed securities are making noise about wanting their money back, a disaster the banks have clearly feared from the start of this crisis. The banks, for their part, insist that the robo-signing scandal is just a matter of bad paperwork.

    And the defrauded homeowners? They go right on facing foreclosure — at least those who still have homes. The same political advisers who guided Barack Obama into claiming, as a candidate, that he’d freeze foreclosures now fret about “moral hazard” and the systemic threat that protecting borrowers would create. They insist that we accept the fantasy of a mortgage and banking industry in need of tweaks, rather than confront the grotesque beast that ate millions of American dreams before devouring itself.

    Obama’s arguments might be more convincing if the robo-signing fraud was exceptional. But it’s just the latest dirty open secret to make headlines. In the past three years, we’ve learned that originators, desperate for more loans to feed banks, steered borrowers to the no-doc, low-doc and other subprime loans that were required to keep the securities game going. We learned that those originators targeted seniors and people of color — or, in the parlance common at Wells Fargo, “mud people” — because they were the easiest to exploit. We learned that the Office of Thrift Supervision (OTS) found widespread lending fraud and malpractice at one of the largest subprime lenders, Washington Mutual, year after year for five years — and did nothing. Worse, OTS blocked other regulators who wanted to act. And we learned that credit-rating agencies inflated ratings of plainly shoddy loans. All this and more was required to fuel the securities trade that made a very few people very rich.

    A number of big banks have voluntarily suspended foreclosures while they no doubt scramble to falsify more documents. It’s not the first voluntary foreclosure freeze. We last saw such charity when President Obama began crafting his foreclosure policy in early 2009. When it became clear that his policy would be toothless, the foreclosures resumed. Since then, the administration’s audits have confirmed the program’s widely predicted failure. A solution based on the industry’s good will couldn’t work then, and it won’t work now. Bank of America announced recently that it will resume business as usual in the twenty-three states where foreclosures require a judge’s approval. The bank insists that during its ten-day freeze it managed to review its foreclosure process in the relevant states and found nothing that demanded a pause. Just a few papers out of order is all.

    Meanwhile, the president has thus far made it clear he will do nothing to force the banks’ hand. He has said there will be no foreclosure freeze, and his foreclosure prevention program still contains no cudgel to force meaningful rewrites of plainly bad loans. The federal probe into banks’ criminal behavior is welcome news, but millions of homeowners are fighting desperate battles right now and getting no real help from the White House or Congress, which has refused to pass the bankruptcy reform that would, finally, give borrowers the power to demand a fair deal. The president and his advisers tell us instead that holding banks accountable while helping families who are drowning in fraudulent debt is too dangerous for the housing market.

    This position does not differ substantively from that of George W. Bush. Given what we’ve learned lately, it’s even less defensible. Mortgage servicers have shown that they have neither the will nor the ability to fix millions of bad loans. But until those loans are dealt with, there will be no housing recovery, any more than the broader economy will revive without job creation. The situation clearly demands that the government step in and lead. There is sadly not much more than that to add to the foreclosure debate; the solutions have long been clear. As long as banks are left to write their own rules, they will go on flouting law and decency. And as long as President Obama allows them to do so, he’s a willful participant in their ongoing scam.

    [Copyright 2010 The Nation]

    This article is filed in: Economy, US News

    Also in Economy

    Housing Guy Apologizes For Housing Bubble

    A former Freddie Mac employee wants to apologize for encouraging so many people to buy houses.

    Jobless In September: A State-By-State Look

    Unemployment fell in 23 states and Washington, D.C., rose in 11 states and was unchanged in 16.

    Fannie, Freddie Bailout Continues To Cost Taxpayers

    The two mortgage giants — Fannie Mae and Freddie Mac — could end up costing taxpayers another 19 billion dollars over the next three years. That’s according to a new government report.

    Tainted Forecloses Concern State Judges

    Across the country many judges are concerned about the integrity of the foreclosure process, and this week some courts took action. In New York, there are new rules for lawyers in foreclosure cases; and Maryland has made it easier to stop a foreclosure if its based on bad documents. Nonetheless, in the 23 states that have judicial foreclosure, lenders remain in the drivers seat.

  134. We filed an EMERGENCY PETITION FOR
    WRIT OF PROHIBITION in the NV Supreme Court to stop the revolving process of the foreclosure mill that goes around and around in Nevada, even with our special mediation program. The program was set up to give Nevada homeowners a legal judicial process to follow to save their home. The process could work if the banks cooperated, but in most cases they fail to follow the rules because they know any court ruling against them is Moot. if they do follow the rules they offer a loan mediation and trial period, but the loan is so bad it cannot be kept up, and sometimes even if the 3 month trial period if followed perfectly the bank proceeds anyway with foreclosure…

    Once judicial review has been addressed and a judge has ruled a STAY against the banks process of foreclosure because of NON cooperation in the mediation hearing, then the process should stop. But the banks are just filing another NOD and moving on, even though there is a legal
    order from the court to stop. Our Writ went into the Supreme Court this morning. The filing is an emergency filing to stop the process. Hopefully the process will stop and we will have a remedy that actually works. Wish us luck, if we win all Nevada homeowners will win, and have a remedy that will help, if they exercise it.

  135. STILL FIGHTING IN CALI

    Please visit this website for the latest California specific defenses.

    https://sites.google.com/site/mersfatalflawsincalifornia/

  136. Fellow foreclosure defense activists,

    Check out PBS’ News Hour at http://www.pbs.org/newshour/bb/business/july-dec10/foreclosures_10-19.html

    Part II is tonight!

    We need forensic auditors up here in Bean Town.

    America is getting Kafkaesque! Let’s get the VOTE out!

    ALLAN
    BeMoved@AOL.com

  137. Have a hearing coming up in fed court…they are trying to dismiss my case… Lets just say, as Neil says they fix all the docs before hand, even though many have been submitted in court fraudulantly.. What can we say to get the issue off of the obligation and onto the collection rights issue, so we can keep this from getting dismissed? How can this new news of countrywide help me and others use the REMIC issues to our advantage? Thankyou

  138. Buyers: Find Your Title Insurance Certificate
    Buyers who purchased a foreclosed property in the last three years should check their title insurance to make sure that it would cover them if there were a claim on the property from the former owner.

    Former owners are likely to seek payment instead of reinstatement and those claims will go to the title insurer, attorneys say.

    “If you’re a bona fide purchaser with title insurance and no knowledge of any irregularities in the transaction, courts are going to be extremely loath to set aside the sale,” says Diane Thompson, an attorney with the National Consumer Law Center.

    The situation isn’t as clear for buyers who paid cash and didn’t bother with title insurance. “Potentially, you face a legal battle in that situation.” says Tim Dwyer, CEO of Entitle Direct Group, the holding company for EnTitle Insurance Co., an Ohio title insurer.

    Source: Associated Press, Dave Carpenter (10/15/2010)

    marcus @ foreclosureProSe.com

  139. McCollum wins round in foreclosure battle
    Source: South Florida Business Journal

    Florida Attorney General Bill McCollum has won a round in his efforts to subpoena the records of foreclosure attorney David J. Stern’s law firm’s
    records.

    Broward County Circuit Court Judge Eileen O’Connor denied the Plantation attorney’s motion to quash McCollum’s subpoena.

    O’Connor’s ruling was in contrast to a previous ruling in Palm Beach County, in which a judge told McCollum’s lawyers they could not subpoena the records of Tampa-based Shapiro & Fishman.

    In August, McCollum launched an investigation into three South Florida law firms to determine if they engaged in unfair and deceptive actions in their
    handling of foreclosure cases.

    The foreclosure mess has since snowballed, with several banks putting a halt to foreclosures until they can determine if there was any wrongdoing.

    Stern’s attorney’s said he would argue the case to the 4th District Court of Appeal, meaning the difference between the two cases may become an issue at the appellate level.

    “We respectfully disagree with the judge’s ruling and plan to file an appeal,” said attorney Jeffrey Tew, who represents Stern.

    O’Connor did not provide a reason for her ruling.

    In his ruling, Palm Beach County Circuit Court Judge Jack Cox said “only the Supreme Court controls the conduct of lawyers in the courtroom and in court proceedings,” and that McCollum’s office did not have the
    right to subpoena the records.

    Meantime, Stern’s support company, the publicly traded DJSP Enterprises, confirmed in a news release that it was cutting back 10 percent of its workforce. DJSP also said it hired attorneys from Greenberg Traurig to mount an internal investigation into growing allegations that its employees helped fabricate court documents in foreclosure cases.

    The Business Journal reported Tuesday that Stern’s firms laid off up to 100 people. DJSP Enterprises had grown to about 1,100 employees during the height of the foreclosure
    crisis.

    McCollum has been at the forefront of the investigation. Earlier this week, he sent a letter to the heads of several banks and servicing companies, asking to meet to discuss ways to “redeem the integrity of the
    foreclosure process.”

    He also joined with 49 attorneys general in calling for a multistate investigation into foreclosures to determine whether banks and loan services used false documents and
    signatures to push foreclosures through the courts.

    marcus@foreclosureProSe.com

  140. States Plan to Investigate Mortgage Servicers
    A coalition of attorneys general from as many as 40 states is expected to announce Wednesday the launch of a joint investigation of the mortgage-servicing industry.

    The attorneys general say they intend to first determine the scale of the problem and correct the issues. Several of them also have said that they believe one of the results of the investigation could be an agreement that forces lenders and servicers to make mass loan modifications or adopt principal forgiveness plans.

    Ohio Attorney General Richard Cordray says, “I think the mortgage-servicing firms need to understand that they face real exposure now, and they would be well advised to take this very seriously, to clean this up by doing loan workouts to keep people in their homes, which up till now they’ve just paid lip-service to.”

    Source: The Wall Street Journal, Robbie Whelan and Ruth Simon (10/11/2010)

    marcus@foreclosureProSe.com

  141. Foreclosure Logjam Threatens Fannie, Freddie

    Fannie Mae and Freddie Mae will force lenders to pay for any losses that the GSEs incur due to a breakdown in the foreclosure process.

    Interim FHFA director Ed DeMarco said the firms want to take a “tailored approach” to the foreclosure logjam that is fair to delinquent householders, servicers, and mortgage investors and is beneficial to taxpayers and the housing market.

    The mortgage giants could lose billions of dollars in a prolonged delay because they would be unable to sell properties that have slipped into foreclosure, explains George Mason University real estate professor Anthony Sanders.

    Source: Washington Post, Zachary Goldfarb, Dina ElBoghdady, and Ariana Cha (10/12/2010)

    marcus@foreclosureProSe.com

  142. What is the benefit if any, of purchasing the title packages with comments at this time? If documents have been scrubbed already. We can locate all this information ourselves – why would we pay you to give us information we can get for free?

  143. Source:South Florida Business Journal
    10/06/10

    Wells Fargo Bank has agreed to a settlement with attorneys general in Florida and seven other states after an investigation into deceptive marketing practices of loans made by its Wachovia Bank subsidiary.

    That settlement includes a loan modification plan for about 4,000 Florida borrowers and a $10.2 million payment to Florida to help with foreclosure relief.

    Payment option adjustable-rate mortgages, marketed by Wachovia as “pick-a-pay loans,” were one of the most toxic mortgage designs of the financial meltdown. They allowed borrowers to pay less than the monthly interest payments and let the balance of the mortgage increase until, finally, the loan resets and the borrower must make full interest and principal payments. This often causes a huge jump monthly payments and results in a mortgage that is severely underwater.

    Option ARMs played a major role in the downfalls of BankUnited FSB, Washington Mutual Bank and IndyMac Bank.

    Wachovia acquired a big pool of option ARMs by buying Golden West Corp. It stopped originating these loans in 2008 and was acquired by Wells Fargo later that year. Wells Fargo never made these types of loans.

    According to a release from Attorney General Bill McCollum, Wachovia and Golden West’s marketing materials did not fully explain to borrowers that the minimum payments in the first years of the loans wouldn’t fully cover the interest and cause the balance of the loan to grow.

    As part of the settlement agreement, Wells Fargo signed off on a plan to modify its loans starting Dec. 1 and running through June 2013. Borrowers who are either 60 days delinquent or facing imminent default would qualify for the program, which McCollum’s office said could include $388 million in mortgage relief in Florida.

    The first step of the modification would be seeing if borrowers qualify for the federal Home Affordable Modification Program. If not, the bank would use an alternative assistance program in an effort to reduce the mortgage debt payments to less than 31 percent of the borrower’s income. This could be accomplished by reductions of principal and interest rates.

    The attorneys general would monitor the bank’s compliance and receive quarterly reports on the number of modifications granted.

    Read more: Wells Fargo settles deceptive loans claim – South Florida Business Journal

  144. SERVICERS HAVE BEEN NOTIFIED…. TEMPORARY FORECLOSURE MORATORIUM IN MARYLAND!!!

    In response to a request this weekend by U.S. Rep. Elijah E. Cummings (D-Dist. 7) of Baltimore, Gov. Martin O’Malley (D) has a signed joint letter with Cummings and Attorney General Douglas F. Gansler calling on “Maryland mortgage servicers to halt current and future foreclosure proceedings until Maryland homeowners can be assured they’re being treated fairly.”

    The joint letter, a copy of which was contained in a press release from the governor’s office, was dated Oct. 4 and addressed to several companies, including Wells Fargo/Wachovia, PNC Financial Services Group, JP Morgan Chase & Co., Bank of America and CitiMortgage. A spokesman for the governor said the letters will actually be mailed Tuesday morning.

    O’Malley said in the press release, “In recent days, several servicers, including JP Morgan Chase, Bank of America and GMAC/Ally Finance, have acknowledged that they have failed to follow proper procedures by filing affidavits in foreclosure cases without adequate personal knowledge of the underlying cases, trampling laws that were designed specifically to protect homeowners in default. They have recently announced suspension of foreclosures in 23 states.”

    Cummings, a senior member of the House Joint Economic Committee, sent a letter Saturday to O’Malley and Gansler, according to information on Cummings’ website, calling for a 60-day moratorium on foreclosures.

    Cummings said in his letter, “Numerous new reports from multiple states suggest major lending institutions may have committed deceptive and fraudulent actions to initiate foreclosure proceedings against potentially hundreds of thousands of homeowners, including signing affidavits and other legal documents in bulk without confirming the accuracy of the information alleged in those documents …”

    Cummings said on his website, “As a result of practices such as these, families may have been wrongly evicted from properties based on inaccurate or incomplete information. Foreclosed properties may have even been sold to new owners following such proceedings.”

    Calls to mortgage servicers addressed in the joint letter calling signed by O’Malley, Cummings and Gansler were not immediately returned Monday evening.

  145. I am happy to say that I was successful in quieting title on one of my properties. I really think that more homeowners should go on the offensive and file quiet title action while these bozos get their act together. This is an opportunity not to miss. I have documented the procedure at the link below. Keep in mind that this is in Florida.

    xhttp://www.foreclosureprose.com/how-to-quiet-title/

    marcus@foreclosureprose.com

  146. Long story short, we lost on the lenders MSJ in June, and the judge order the foreclosure. We are now on appeal.

    Because the lender was countrywide, Fannie Mae hires a local realtor who works for Century 21 to list the property. The title to the home has not switched and this realtor, while the appeal is still ongoing, comes to my house one day when we are not home and has some guy take my car of the property.

    We immediately filed a police report and reported the car stolen, within an hour, my car is recovered (damaged and being ready to be scrapped) and the guy who took it states that the realtor told him he could have my car because it was abandoned.

    I called the realtor and she denied telling this person to take my car, which is a crock of Sh!t. Cmon lady, the guy took my car in the middle of the day infront of 3 witnesses, whom he told all three what the realtor said he could do.

    I plan to sue Century 21 and Fannie Mae, but does anyone know if this will be worth it to me. What kind of liability and damages can I claim.

  147. I have been actively seeking a knowledgeable, aggressive, true foreclosure fraud defense attorney for > 1 month to assist with active foreclosure litigation in TN. I have contacted everyone I could find online and posted the following message in this forum on 9/8/10:

    “Current foreclosure litigation in TN (Sevier County).
    Injunction filed “pro se” to stop foreclosure sale.
    Attorney for defendants (Bank of America, Countrywide, MERS, et al) has filed a Motion to Dismiss…maintains servicer (Recontrust) has standing to foreclosure even though they don’t and that MERS was a “beneficiary” who could assign/transfer the security instrument.
    I need legal assistance from an aggressive foreclosure defense attorney ASAP. Have been looking for several weeks with no success.”

    I am desperate for legal help but can find none. Either there has been no response to queries, knowledgeable foreclosure defense attorneys do not practice in TN (even through local counsel), or they are simply already swamped and not available.

    If you have any advise as to what else homeowners such as I, who are trying to save their properties and are already in litigation but insecure with proceeding “pro se”, can do to
    find competent legal assistance, please respond.

    Our situation is urgent and time is of the essence.

    Thank you.

  148. Rik,

    You need to ask your HOA if they gave notice to all lienholders. If they did the preliminary report which you should get, should have the title free and clear and the bank has an unsecured loan and you should immediately record a DECLARED HOMESTEAD. If they didn’t give notice then the sale should be void.

  149. Hopefully this will be an easy one for someone with more experience than me.

    My HOA foreclosed and got the default judgement, sold my house to themselves, but I paid the HOA off with savings and am still in my house.

    Does FDLG/Wells Fargo still have a case for Foreclosure if the house has already been sold for a HOA Lien?

    I ask this question because if I had not paid the HOA off, they would have sold the house to regain their costs, and I assume that unless Wells Fargo filed a claim all proceeds would go to the HOA.

    Would this put the HOA in th first position for Liens and displace WF altogether?

    Thank you in advance for your help.

    Rik

  150. Fake Cost-Bond

    In order to circumvent the cost bond requirement (F.S. 57.001) the mill will post a bond with the clerk when challenged. The problem with the cost bond posted by the mill is that the attorney is acting as a surety for the plaintiff. That is illigal. An attorney cannot act as surety according to F.S 454.20 and Florida Rules of Judicial Administration 2.060(f).
    The Fourth Judicial Circuit Court Granted Defendant’s Motion to Dismiss the pending foreclosure case for Plaintiff’s failing to post the statutorily required non-resident cost bond and stated, “The Florida Statutes require that a foreign corporation instituting legal action in the State of Florida post a bond with the clerk of court prior to moving forward with the legal action. Citigroup Global Markets v. Bumbu, 16 Fla. L. Weekly Supp. 737a (Fourth Judicial Circuit, Clay County, June 2, 2009.)

    The mill will have a problem with this requirement because the REAL plaintiff has to obtain a bond from a third party SURETY company. As we all know, servicers use fake entities to foreclosure on people. A surety bond company will certainly not participate in their shell game for liability reasons. So the moral of the story is to keep pressing the issue. Don’t give up on the cost bond.

    marcus@foreclosureProSe.com

  151. Good news for foreclosure defendants on cost bond issue.
    ————————-

    Fourth DCA Denies Petition Challenging Constitutionality Of Section 57.011, Florida Statutes For Lack Of Jurisdiction
    Posted: 02 Sep 2010 06:27 PM PDT
    In Achord v. Osceola Farms Co. (4D09-1906), a divided panel of the Fourth District released an opinion relating to the $100 bond an out of state plaintiff is required to post for defense costs in accordance with section 57.011, Florida Statutes. The majority opinion was written by Judge Warner. With regard to the statute, the majority stated:
    Section 57.011 was first enacted in 1828, well before the enactment of even the earliest Florida constitution containing a provision for access to the courts. Art I, § 9, Fla. Const. (1838). The practical reason for such a statute is to obtain security for a suit being prosecuted by a nonresident plaintiff.
    Notably, the court stated:
    Further, section 57.011 does not set a condition precedent to filing a cause of action. Only the defendant may invoke its provisions. A defendant may also not opt for dismissal of the claim and instead rely on the alternative provided of looking to the plaintiff’s attorney to cover the cost amount.
    The court’s conclusion:
    Petitioners seek second-tier certiorari review of a decision of the circuit court sitting in its appellate capacity affirming a county court’s order dismissing approximately 1500 non-resident plaintiffs from a county court suit, because none of the plaintiffs posted the $100 bond for defense costs in accordance with section 57.011, Florida Statutes. We deny the petition as we conclude that we do not have jurisdiction under these facts.
    ***

    The foregoing explains why we cannot say that the circuit court departed from the essential requirements of law or violated clearly established principles of law. Even the supreme court decisions appear to diverge when analyzing minimal fees or expenses involved in the litigation process. In a proper case brought to us on direct appeal, this issue would be ripe for our consideration. Our scope of review on second-tier certiorari is much narrower. Because there is no clearly established law to apply to this provision, we must decline jurisdiction.
    In a concurring opinion, Judge Levine stated:
    Petitioners make a compelling case for the merits of their position. In our constitution, access to the courts is one of the fundamental rights in the Declaration of Rights. Art. I, § 21, Fla. Const. (“The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”). It would be very easy to brush aside the requirements for second-tier certiorari jurisdiction to get to the merits of this action. But, we are constrained by the law and the limits of our jurisdiction. “There is a great temptation in a case like this one to announce a ‘miscarriage of justice’ simply to provide precedent where precedent is needed.” Stilson, 692 So. 2d at 983. That temptation also exists in this case, but we do not have the authority to succumb to that temptation and exercise jurisdiction.
    The contours of jurisdiction are not so malleable for us to vindicate the rights of petitioners. As Justice Cardozo stated, “Jurisdiction exists that rights may be maintained. Rights are not maintained that jurisdiction may exist.” Berkovitz v. Arbib & Houlberg, 130 N.E. 288, 291 (N.Y. 1921).
    In dissent, Chief Judge Gross stated:
    I agree with Judge Cox’s well-reasoned dissent below that section 57.011, Florida Statutes (2009) is unconstitutional. An unconstitutional statute that barricades the courthouse to a group of indigent defendants is a violation of a “clearly established law” that results in a miscarriage of justice under Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885, 890 (Fla. 2003).

    marcus@foreclosureProSe.com

  152. Dear Attorneys & Friends,

    Take a look at this order we just got back from Lake County Superior Court, Civil Div., Indiana.

    BAC Loan Serving, LP Case# 45D11-1003-MF-207
    V.
    Helen C. Goldman

    The Judge mis-states the facts; because Mom filed her RMSJ on 09/01/2010
    And not the day of the hearing, on 09/03/2010. And the judge had previously
    Stated in the order for the 9/03/2010 hearing, that she would consider both
    Issues on the 3rd.

    But, look what the Judge says at #12: “The Plaintiff has no current title to the real estate and no right
    To displace Defendant from the property.

    And 13: “In such case, the Plaintiff would still have no title to the real estate and and no right
    To displace Defendant from the property.

    WOW,,,,,,

    ** WE are presently seeking an attorney in Lake County, Indiana to take over the case “Pro Bono”
    Now that we have proven that we can do “The Heavy Lifting”. This case is all but won!!!

    This case will change the foreclosure landscape in Indiana……..

    I will post the order as soon as Neil contacts me.

  153. Moses SPEAKS. No, not about a PROMISED LAND. But about Promise DENIED. That’s Moses S. Hall, don’t want any confusion here.

    Don’t know the man, so I am not in anyway endorsing him. But I do AGREE. I DO AGREE. Where Oh WHERE is the California AG?
    Mr. Brown? An Answer PLEASE?

    =======================================

    LAW OFFICES OF MOSES S. HALL, APC
    2651 East Chapman Avenue, Suite 110
    Fullerton, California 92831
    Telephone (714) 738-4830
    Facsimile (714)992-7916

    September 9, 2010

    Attorney General’s Office
    California Department of Justice
    Attn: Edmund G. Brown Jr.
    1300 “I” Street
    Sacramento, CA 95814

    Benjamin G. Diehl
    Office of the California Attorney General
    300 S. Spring Street,. Ste 1702
    Los Angeles, CA 90013

    Kathrin Sears
    Office of the California Attorney General
    455 Golden Gate Ave., Ste 1702
    San Francisco, CA 94102

    Re: Civil Code §§ 2923.52 and 2923.53
    The People of The State of California vs. Countrywide et. al. LC093076
    Petition for Writ of Mandamus

    Dear Colleagues and Attorney General Edmund G. Brown Jr:

    As you are aware, my office represents homeowners caught up in the foreclosure crisis currently occurring in the California housing market.

    You may recall that my office sought your assistance in the matter of Mabry vs. Aurora Loan Services. Wherein the 4th Appellate District Division Three acknowledged a private right of action to prevent foreclosures on a citizen’s primary residence, when the bank and/or mortgage holder has not complied with Civil Code § 2923.5. However, your office opted not to participated in what I believe was a landmark decision for homeowners in the battle against foreclosure prevention here in California.

    Notwithstanding the Stipulated Judgment and Injunction that your office had obtained against Countrywide/Bank of America in the above referenced case, Bank of America filed an Amicus Curia Brief in the Mabry action espousing no private right of action and no obligation to modify distressed loans.

    I am fully aware, grateful and commend your office for its attempts to crackdown on loan modification schemes that have swindled millions of dollars out of frightened and frustrated homeowners. Some homeowners who were and still are willing to believe against all logic or reason that the companies, whom practiced such schemes, could actually get the mortgage holder to give them some sort of State or Federal assistance that could prevent the losing of their homes and becoming homeless.

    I further commend your office for its 2008 lawsuit against then Countrywide Financial, Countrywide Home Loans, Inc., and Spectrum Lending, Inc., who are now commonly referred to as Bank of America N.A. and BAC Home Loans (BAC). An action which ultimately resulted in the successful acquiring of a Stipulated Judgment and Injunction against (BAC) on October 14, 2008.

    The BAC lawsuit’s primary focus was on the predatory lending practices of the Defendants. The Stipulated Judgment and Injunction provides a remedy that creates yet another avenue for BAC borrowers to find relief and even the possibility of preventing the loss of their homes. The loss of a home is a threat that is ever too common, albeit avoidable with help from BAC, for numerous California BAC borrowers in this foreclosure crisis.

    I wish this letter could end here or at least continue to praise your efforts and accomplishments as the present Attorney General of California. However, unfortunately, it must now turn to the present state of affairs and your lack of aggressiveness in the pursuit against the foe you identified and successfully prosecuted in the People vs. Countrywide, et.al. action.

    I believe judgment obtained against BAC was merely the tip of the iceberg. You may or may not be aware that IndyMac Bank, now OneWest Bank, has been sued by their investors for providing false and misleading appraisals along with committing many underwriting violations, which gave thousands of Californians their present unconscionable loans [a copy of the court’s opinion is attached for your edification].

    There are presently hearings scheduled on September 21, 2010 and September 22, 2010, that involve issues that would substantially curtail the foreclosures in California:

    September 22, 2010 at 9:00 a.m. in Department 68 of the Los Angeles Superior Court, Mabry vs. Preston Dufauchard, Commissioner For the California Dept of Corporations, Real Party in Interest Aurora Loan Services, LLC, Case No: BS 127903. Petition for Writ of Mandamus.
    The issue: Whether possessing a HAMP program equates as compliance with California Civil Code § 2923.53.
    September 21, 2010 at 9:00 a.m. at the California 4th Appellate Court Division Three Vuki vs. Superior Court of California, Orange County Case No: GO43533, Real Party in Interest HSBC. Oral Argument.
    The issue: Whether a bad faith compliance with Civil Code § 2923.53 makes the foreclosing beneficiary (HSBC) a bona fide purchaser pursuant to Civil Code §2923.54.
    September 21, 2010 at 9:00 a.m. at the California 4th Appellate Court Division Three Sanchez vs. Superior Court of California, Orange County Case No: G043300, Real Party in Interest Litton Loan Servicing LLC.. Oral Argument.
    The issue: Whether a fully executed and performed loan modification is terminated by the lender’s inadvertent sale of the subject real property in lieu of Civil Code § 2923.54.
    These decisions are being sought by my office to help clarify citizens’ rights under the present Foreclosure Prevention Statutes.

    My office has been very instrumental in not only the prosecution of these issues, on behalf of my clients, but all citizens of the State of California.

    Unfortunately, the BAC Stipulated Judgment and Injunction does not provide a component for a private right of enforcement. Thus, with respect to possible violations by BAC, such Stipulated Judgment and Injunction can only be enforced by your office.

    My office would love to step into your shoes and be granted permission and the rights to enforcement under the Stipulated Judgment and Injunctions. That way we may stop all the Countrywide loan foreclosures presently scheduled and being conducted in California until each

    prior Countrywide and/or BAC California borrower is offered the benefits under the Stipulated Judgment and Injunction your office obtained.

    I do not believe that you could or are able to assign such a right, but I make it as a gesture of sincerity as to my conviction and belief of the wrongdoings of BAC.

    I ask that you immediately seek Court intervention enjoining all Countrywide and/or BAC foreclosures proceedings that fall within the auspices of the Stipulated Judgment/Injunction.

    Alternatively, you leave my office no choice but to seek a Writ of Mandamus asking the Court to instruct you and your office on your obligations as Attorney General of our great State. I realize your business and acknowledge that this may not be your primary priority, but if I do not receive a response indicating your intent by September 17, 2010, I will deem you have no intent to respond, investigate this matter, or take other appropriate action and at that time will seek the Writ of Mandamus.

    Notwithstanding the aforementioned paragraph, I wish you well on your campaign to return to the position of Governor of our great State.

    Sincerely
    Moses S. Hall;
    Msh:
    Attachments.

  154. To Neil Garfield, Matt Weidner, Nye Levalle, or anyone else that is knowledgeable and has the ability to get the word out! Thanks!

    http://www.foreclosurehamlet.org/profiles/blogs/a-hamleteer-w-an

  155. New Rules! New Rules! New Rules!

    =====================================

    SUPREME COURT: CORPORATIONS CAN BUY JUDGES

    x_http://www.zerohedge.com/article/supreme-court-corporations-can-buy-judges

    Submitted by George Washington on 09/09/2010 18:40 -0500

    You’ve heard that a recent Supreme Court decision said that corporations can give unlimited funds to politicians.

    BUT DID YOU REALIZE THAT IT SAID THAT CORPORATIONS CAN GIVE UNLIMITED MONEY TO JUDGES?

    As William K. Black – professor of economics and law, and the senior regulator during the S & L crisis – pointed out last week:

    The Supreme Court’s Citizens United decision allows businesses to make unlimited political contributions to judges and politicians. When judges are elected, the need for these contributions inherently turns judges into politicians. Sympathetic judges are corrupt businesses’ most valuable allies. CORPORATIONS AND THEIR SENIOR OFFICIALS CAN COMMIT CIVIL OR CRIMINAL WRONGS WITH IMPUNITY IF THEIR CASE IS ASSIGNED TO A FRIENDLY JUDGE.

    The Robber Barons often had judges on their payrolls.

    Judges can serve a corporation as both a shield and a sword. They can declare statutes and regulations unlawful. They can issue favorable decisions when corporations sue their critics, which can intimidate, tie up, or even bankrupt the critics.

    The fact that corporations are “investing” so heavily in getting pro-business judges elected demonstrates that their CEOs believe that the election of friendly judges will increase their incomes and decrease the risk that they will ever be sanctioned.

    It’s a business decision – not a decision based on which judicial candidate would be more qualified or better serve justice. CEOs want to win cases when doing so would be unjust and contrary to the law, which is why they hire top attorneys and make the contributions necessary to elect judges they believe will be allies.

    The empirical evidence in Texas shows that judicial elections and contributions produces perverse dynamics. One study showed that hiring the former law firm of a Texas Supreme Court justice markedly increased the chances that the Texas Supreme Court would exercise its discretion and hear your appeal from an adverse decision. Hiring the former law firm of the Chief Justice of the Texas Supreme Court produced an even greater chance of having one’s appeal heard.

    As Yves Smith noted recently:

    A Mother Jones article, “Permission to Encroach the Bench,” (hat tip reader Francois T) discusses how already big ticket battles over state supreme court seats are likely to rocket to a new level of priciness:

    For a down-ballot category that even well-intentioned voters pay little attention to, judicial races are astonishingly expensive. In 2004, $9.3 million was spent in the race for a single seat (pdf) on the Illinois Supreme Court. That’s higher than the price tag of more than half the US Senate races in the nation that year. In 2006, three candidates for chief justice in Alabama raised $8.2 million combined.

    But those sums could look paltry compared to the spending likely to be unleashed in the wake of the Supreme Court’s Citizens United ruling. In all, 39 states elect judges—and with the stakes including everything from major class actions to zoning and contract cases to consumer protection, workplace, and environmental issues, corporations have always taken a major interest in those races.

    The US Chamber of Commerce, Forbes reported in 2003, HAS DEVOTED AT LEAST $100 MILLION TO ELECTING JUDGES SYMPATHETIC TO ITS AGENDA.

    “No organization has had more success in the past 10 years of judicial elections,” says James Sample, a professor at Hofstra University who studies judicial reform issues. “Its winning percentage would be the envy of any sports franchise.” CITIZENS UNITED HAS ESSENTIALLY WIPED OUT NOT JUST FEDERAL RESTRICTIONS ON CAMPAIGN SPENDING, BUT MANY STATE-LEVEL REGULATIONS AS WELL, Sample notes, and that’s “going to increase the ability of corporations, and to a much lesser extent unions, to engage in electioneering that is basically aimed at winning particular cases.” And given the low profile of these races, it may not take that much to sway that outcome, notes Bert Brandenburg, executive director of the advocacy group Justice at Stake. “A judicial election is a better investment for anyone spending money” than, say, a congressional campaign.

    Note the reference to Alabama, a state I know a wee bit about, and my local sources say the Mother Jones figures are greatly understated, and attorneys in the state who’ve turned over a few rocks put the price tag for a state supreme court seat at $12 million. I’ve had a quick look at a Supreme Court justice’s house. It is in an implausibly costly district for his income (and no, there’s no heiress wife to explain the discrepancy).

    Why is Alabama such a valuable state to control? It used to be a favorite venue for class action lawyers, since juries often handed out multi-million-dollar awards. Getting business-friendly jurists in place at the highest court has meant that any verdict, no matter how egregious and damaging the violations, is cut to $1 million.

    And the degree of banana republic behavior is reaching new levels. CONSIDER: A ONCE PROMINENT CORPORATE FIRM HAS BEEN REDUCED TO BECOMING PRIMARILY A FORECLOSURE MILL. However, because longevity counts in the South, and many of the firm’s senior partners still dine with judges, it has clout well in excess of its fallen standing.

    On a case which is now being tried, this fading firm (WE’LL CALL IT BILL’EM) has managed to get the case (which is being heard only by a judge) moved from the court before a decision has been rendered to a sympathetic appeal court judge. In addition, Bill’em is appending four other cases which that have already been decided and are past the time frame for appeal (in Alabama, you have 43 days in which to file an appeal). The rationale is that these cases present similar issues, but that still has the effect of reopening cases which under existing law are settled. For lay reader, if you miss the deadline for appeal, you can’t appeal…..except in when the right people in Alabama want it to occur.

    So this isn’t merely having judges who will provide the opinions big business wants.WE NOW HAVE A COURT RUNNING ROUGHSHOD OVER BASIC ELEMENTS OF PROCEDURE. The last bastion of defense of the individual is being gutted, to the point where even the forms of the law will be ignored if that’s what it takes to produce the outcome the big money interests need.

    I wrote in April:

    As Supreme Court Justice Louis Brandeis said:

    We may have democracy [or you can substitute the word "republic"], or we may have wealth concentrated in the hands of a few, but we can’t have both.
    ***

    OF COURSE, ANTITRUST LAWS WERE ENACTED TO PROTECT THE ECONOMY AND DEMOCRACY, but – like the Depression-era laws separating depository banking from investment banking – ARE NOT BEING ENFORCED.

    AND THE GOVERNMENT COULD USE EXISTING LAWS TO FORCE ILL-GOTTEN GAINS TO BE DISGORGED (SEE THIS AND THIS), FRAUDULENT TRANSFERS TO BE VOIDED AND – PERHAPS – EVEN BONUSES GAINED AT THE EXPENSE OF TAXPAYERS CLAWED BACK. Such actions would make the 800 pound gorillas a little smaller, helping to reduce concentration of wealth somewhat. But that would assume that America is still a nation governed by the rule of law.

    Currently, it’s not. Only courageous prosecutors and brave judges can restore the rule of law to America.

    I WROTE THAT BEFORE I REALIZED THAT THE SUPREME COURT’S CITIZENS UNITED DECISION OPENED THE FLOODGATES TO CORPORATIONS BUYING JUDGES.

  156. Ok, so it has been a while since i posted but here goes. I have a VA Guaranteed Loan with what seems is Wells Fargo as the service although they are the ones who are foreclosing through FDLG.

    The foreclosure started like 2 years ago. Since that time, I assume that Wells has made a claim on either insurance or on the VA for the loan as it has been in default for so long. How would I go about finding if this is the case?

    The reasoning behind my questions is twofold.

    Firstly, if they have been paid either with insurance or the VA Guarantee wouldn’t that negate the loan, and therefore the foreclosure by Wells Fargo?

    Secondly, would this be a basis for a motion to dismiss if it can be proven?

    Added Info – Last action was on my part in mid May of this year with a motion to compel and request for sanctions. No responses or actions by FDLG since.

  157. Current foreclosure litigation in TN (Sevier County).
    Injunction filed “pro se” to stop foreclosure sale.
    Attorney for defendants (Bank of America, Countrywide, MERS, et al) has filed a Motion to Dismiss…maintains servicer (Recontrust) has standing to foreclosure even though they don’t and that MERS was a “beneficiary” who could assign/transfer the security instrument.
    I need legal assistance from an aggressive foreclosure defense attorney ASAP. Have been looking for several weeks
    with no success.

  158. A little update on my yesterday post. I have heart that the unconstitutional restriction on unrepresented parties has been experienced by people all around the state of Florida. This is a potential federal issue that may warrant an investigation by the US Attorney General.

    It is imperative that people file complaints in writing.

    marcus@foreclosureProSe.com

  159. Hillsborough County Court Unconstitutional Restriction on Unrepresented Parties

    Hillsborough county court in Florida has recently instituted an unwritten rule restricting access to court to unrepresented foreclosure defendants. All foreclosure pro se are now required to write a letter to the judge asking permission to schedule a hearing on their motions. This is a blatant attack on people right to due process; it is unconstitutional.
    A new division has been created to handle foreclosure cases only. Those cases are being heard by several retired judges in such an expedient fashion that a defendant has little change to defend his or herself. This tactic is also known as “rocket docket”. It is being implemented throughout the entire state. Expediency should not be at the expense of justice.
    If you’re a pro se and you are being denied due process right, please file a complaint with the State Courts Administrator and appeal to the District Court. This illegal practice must stop.

    Laura Rush
    General Counsel
    Office of the State Courts Administrator
    500 South Duval Street
    Tallahassee, FL 32399-1900
    (850) 488-1824

    marcus@foreclosureProSe.com

  160. MAD AS HELL

    Listen if you had New Century..they still have an active bankruptcy case in Delaware. A handful of us pro se homeonwers are fighting them up there. We filed Proof of Claims (some late, which were accepted as timely filed after motions) and we filed AP or Adversary Proceedings.

    There is money still left. In fact just this past week New Century settled with investors in their stock (NCM) for $125 Million dollars.

    One pro se has done judicial notice of the fraudulent signatures etc by New Century VPs.

    Their bkr was started 4/2/2007 so anything done after that date (such as real property transfers etc) would have had to get Judge Carey’s and/or the bkr trustee’s approval.

    The main case number is 07-10416 (KJC)
    get a free PACER account and look it all up

    (note–PACER charges you small fees once you are in and looking/downloading case filings)

    The pro se’s APs have different case numbers.

    Also go read these regarding New Century:

    http://www.scribd.com/doc/20887303/New-Century-Mortgage-Forgeries-Notarized-Illegal-Stamped-Signatures-Newsletter-Nagy

    This is free guide on how to file an AP against New Century in their bankrupcty case:

    http://www.scribd.com/doc/31013021/FREE-Guide-on-Filing-AP-Against-New-Century-in-Their-Bankruptcy-Case-in-Delaware-or-any-other-lender-in-bankruptcy

    TIME IS OF ESSENCE —

  161. I too am pro se against Deutsche Bank, who foreclosed on my home in Jan 2009, and an Unlawful Detainer, which I lost in Aug. 2009, The original lender now defunct.
    I filed my own suit against eight in June 2009, the case still pending, Deutsche Bank recently won to have the Lis Pendens removed, because the house is supposed to be sold. I have documents that are also recorded in records, that shows the VP for the original lender (New Century), assigning the deed of trust, then the same day and the same VP, signs a substitution of trustee for Deutsche Bank. I also have another recorded document that shows this same VP works for Ameriquest. This person has never worked for any of the three. The judge totally ignores this, as I have had it judicially noticed. Deutsche Bank also claims to have been assigned the deed of trust while I was default, because of a temp layoff in 2006, I defaulted in Nov. 2006 and fortunately was able to cure March 23, 2007, while the alleged assignment took place on March 7, 2007. It was non performing.
    The other obstacle (other than the judge), is that the Attorney for DB has filed declarations of a person that works for him, as the manager of his eviction service, claiming to be an REO manager for DB. He also files proofs of service, that have totally different signatures of persons claiming to be the same, as well as a person that does not exist anywhere in the state of CA. My 3/60 foreclosure notice to quit has the Attorney signing as the ATTY for the new owner Carrington, then files the UD as Atty. for the owner DB. Due to the notice of right to cancel blank, and defective upon its face, it tolled the time to rescind to three years, which by QWR, I did 10 days before sale. The judge, not knowing the operation of a calender, sides with the ATTY, who claims the house was already sold. The sale date Jan.
    29, 2009. The rescission date Jan 20, 2009. I received a response
    from NC, who said Carrington owns the loan, Carringtons untimely response, states DB is the owner but respectfully declines to accept
    the rescission (not their choice). Now DB I still have not heard anything from, except the Atty. and the UD. These issues also have
    been raised. Don’t matter.
    Yet another matter, the foreclosing trustee (Old Republic) filed the
    NOD on June 3, 2008, but they were not executed until July 15, 2008
    or effected (recorded) until Jan 08, 2009. The initiated the NOD 42
    days before actually authorized, with no new notice. Also judicially
    noticed, the deed of trust, the same, don’t matter. What do I do about
    the judge, who is either stupid or paid, and the lawyer who likes to
    evict people and lie, and commit perjury, subornation of perjury and
    commit fraud upon the court, as well as allowing, aiding and abetting the fraud of his client. I am about to completely loose my home of
    24 years, because of liars. If there is an Atty. out there PLEASE
    mad as hell and pro se

  162. Thanks a million Deontos. It is a brilliant defense tactic to use.

    marcus@foreclosureProSe.com

  163. FROM The Market Ticker BLOG

    Being Foreclosed With An Option ARM? **Read This**

    Karl Denninger said,
    “Incidentally, I know this attorney and this was one of the points I laid out for him. He turned it into a legal argument and, well, read this…”

    Order Granting Defendant’s Motion to Dismiss:
    x_http://www.scribd.com/doc/35742964/Order-Granting-Defendant-s-Motion-to-Dismiss

    No, this doesn’t get the guy a free house. It does, however, force the plaintiffs to pay the unpaid doc stamps, pay the homeowner’s attorney fees, and re-file once they’ve done so.

    This is a potential stake in the heart of those banks that have negative-amortized loans on their books and try to foreclose – without paying the tax stamps, they lack standing.

    More importantly if each transfer required payment then it gets worse, AS EACH ASSIGNMENT MAY HAVE TO BE PROVED AND THOSE FEES PAID TOO.

    Welcome to reality.

  164. ANOTHER EXAMPLE IS: MAHER SOLIMAN CAN TALK TILL HE IS BLUE IN THE FACE AND HE IS CORRECT IN HIS ANALYSIS JUST ONE THING

    ENRON WAS TAKEN DOWN WHEN GRAY DAVIS WAS RECALLED AND SHWARZENEGGER CAME IN.

    THIS HURT THE POLITICIANS AND THEY TOOK OUT THEIR VENGENCE OUT ON ENRON.

    IT CAN BE DONE ON THE CITY LEVEL REMOVE THE BANKS LICENSES FROM THE CITY AND GO TO THE CITY ATTORNEY.

    NEVER AGAIN
    WE MUST STOP THIS HOLOCAUST

  165. Abby please do it on the local level where the LOCAL DA OR COUNCIL PEOPLE WHERE YOU CAN SUSTAIN A PROTEST.

    CITY OF BELL CASE STUDY THE WALKS ON WASHINGTON THEY KNOW WILL BE NEWS TODAY AND GONE TOMMOROW.

    IN THREE WEEKS THIS WILL ALL BE OVER

    USE NEIL GARFIELDS ANALYSIS WHICH YOU ARE WELL VERSED IN.

    FOOD FOR THOUGHT

  166. CALLING ALL HOMEOWNERS & OTHERS
    JOIN THE SIT IN!!
    FACEBOOK LINK for Homeowners or other individuals who want to participate in a White
    House ‘sit in’ on 9-11-2010

    http://www.facebook.com/group.php?gid=132524423456615

    AN ADVOCACY GROUP

    This is intended to create a group of homeowners and individuals willing to go to Washington and
    stage a sit in outside the White house in protest. We would stay there until we got answers to
    questions that have something to do with reality; No spin or partisan politics. Just the truth. Why
    are we allowing the banks to destroy so many lives? Why are we allowing predatory practices by
    collection and lending institutions? Why is there not a moratorium in place that freezes all these
    assets that are being systematically stolen by the bank system? Where did the bailout money go?
    We do not leave until we have real answers and real advocacy for the people! Ideally we would
    want 100,000 people but I have been told by a writer at the Huffington Post that if we can get just
    100 people to commit and show up he will write about it. Target date 9/11! So please pass this
    along and help support struggling homeowners and move past the apathy that is allowing these
    corporations to destroy so many lives. Let’s make this message go viral and help change the
    situation!

  167. Read Richard Zombeck’s article of today

    Treasury Used Bogus Information In Report to Homeowners

    http://www.huffingtonpost.com/richard-zombeck/treasury-used-bogus-info_b_665357.html

  168. The Florida Bar has a handbook teaching pro se how to do an appeal. Here is the link below.

    http://prose.flabarappellate.org/toc.asp

    marcus@foreclosureProSe.com

  169. Damage to your FICO score via your damaged credit reports?

    Not only have I asked all 3 credit bureaus to include my consumer statement on my credit reports basically saying that any mortgage loan data being reported is in dispute and that I have filed lawsuits for fraud & predatory lending etc. against the mortgage lender etc.

    All 3 credit bureaus report data back to Fair Isaacs, which is a company with sophisticated analytical software which generates your FICO score (credit worthiness used for obtaining loans etc.).

    I am also contact Fair Isaacs to let them know about my victimization and to ask them to ensure they do NOT continue to report a low FICO due to my damaged credit reports from the lenders which I am suing.

    If you are interested in contacting Fair Isaacs here is the info:

    Dr. Mark N. Greene
    CEO
    FICO (Fair Isaacs)
    CORPORATE HEADQUARTERS
    901 Marquette Avenue
    Suite 3200
    Minneapolis, MN 55402 USA
    TEL: +1 (612) 758 5200
    TEL: +1 (415) 472 2211
    FAX: +1 (612) 758 5201

    Their software also does predictive analysis.

  170. Good Info on Promissory Fraud!!

  171. The’ve already found a way to skirt the new financial reform laws!!!

    7/28/2010
    From Fox Business:

    Goldman Sachs (GS: 147.93 ,+0.84 ,+0.57%) has figured out a novel approach to getting around the Volcker Rule’s restrictions on trading: it’s remaking its risk-taking traders into asset managers, and the rest of Wall Street may soon follow, FOX Business Network has learned.

    The big Wall Street firm has moved about half of its “proprietary” stock-trading operations — which had made market bets using the firm’s own capital — into its asset management division, where these traders can talk to Goldman clients and then place their market bets.

    The move is designed to exploit a loophole in the Volcker Rule, part of the recently signed financial-reform legislation named after presidential economic adviser and former Federal Reserve chief Paul Volcker.

    Business Insider then picked up the story:

    It seems like Goldman isn’t just circumventing the rule, but actually changing the role of prop traders. You’d assume that instead of trading with the firm’s money on prop trading desks, the traders will be trading with the firm’s clients’ money on the asset management team.

    But proprietary trading can easily become related to client operations and very closely resemble the prop trading done on strictly defined “prop trading” desks. Thanks to a line in the Volcker Rule which specifies trading “operations unrelated to customer operations,” as long as the “prop trading” is done for client-related purposes, it’s OK.

  172. Deceit and fraud are defined separately in statutes. Under Civ. Code §§1709 and 1710, deceit is defined in simple terms. See Civ. Code §§1572 for both actual fraud and 1573constructive fraud.

    Loook at Liability for actual fraud is limited to acts committed by or with the connivance of a party to a contract with the intent to deceive another party to the contract and induce that party to enter into the contract. Look under Civ. Code §1572

    Deceit is appropriate under a material beach or perhaps cause of action. The notion of a lender, who willfully deceives its borrowers or customers leading to foreclosure so to remedy an investor issue and to avoid recourse.

    ]I suggest you use it there or for the servicing argument for showing the willful intent to induce the consumer homeowners of a right to modifications ad compliance with 2923. to alter his or her position towards litigation (and eat up the balance of legal reserves their intended for a defense and their attorneys). These guys, I know all too well and it’s all too much. The consumer’s injury or risk is liable for any damage suffered as a result of the deceit. [Civ. Code §1709] etc, etc.

    My take on this is too isolate the actual fraud that consists of any of the following acts, committed by or with the connivance of a party to a contract who is the assignor and its agents and not the successors.

    The argument is it is with willful intent a lost beneficial interest woefully deceives a trustor or mortgagor to the contract, solely to induce the other party to enter into the contract [see Civ. Code §1572]:

    Deceit and Actual Fraud combined

    •Servicing rights violate SEC 1122 AB,
    •Accounting rules violations under FAS 140, FIN 115,
    •Trust assets are restricted to passive investments,
    •Lenders controlling interest revoke the powers of sale and foreclosure,
    •Parties lack standing to bring a foreclosure by appointment,
    •Conspiracy to commit fraud where Trustee, Beneficiary and Transferee are all one in the same
    •Bid rigging at trustee sale
    •Fraud perpetrated against the country recorder
    •A nominal interest has powers that conflict in the original assignment,
    •Violations of the Code of federal regulations “CFR”
    Your feed back will be critical and evident where I have gone as far as I can. It’s not getting through to skilled litigators that still don’t get it. Maybe I am lacking your codifications eloquence and ledger capacity to zero into the abuses of GAAP in more subtle terms; LOL!

    he head of the OCC stated in 2009 “I don’t know why getting relief from offering modifications is not working?”

    It’s simple “BECAUSE LENDERS FORECLOSING DON’T OWN THE ASSETS THEY SOLD ….for starters.

    That said, even after the effort and inability for the US Secretary to further tweak FASB to get them to completely roll over.

    Few are winning here. Even Judges who are deciding the matter favorably are commenting from a wrong perspective. There is no demand on UCC judicial interpretations for perfection in a bonefide sale.

    The District Courts hearing these chapter proceedings provide comments after deciding the matter favorably are merely suggesting it’s all about “get it right next time”. That wrong where it says’s to a lender they can bring it back, even when a decision is favorable.

    The key arguments come down to the fact the lender transfers each receivable as a “whole loan” sale. For Pete’s sake, looks at the general ledger where the asset was entered as a “Receivable” and “Loan Held for Sale”.

    That’s not “Loan Held to Maturity” but “Sale”.

    The cost to capitalize and reserve a 30 year loan held to maturity defeats the arguments lenders are making that “they did not sell the subject loan. It’s the old “blank assignment” gimmick. Its arguments are lost in court where the problem peaks the Judges curiosity and that’s about it.

    We know the value of the open assignment argument is defining for the court where it’s a bank surety and liquidity play. It’s also a GAAP disclosure fraud.

    Therein the consumer is disadvantaged arguing defects after being instrumental in a lenders shuffling of assets for maintaining REPO requirements and in its pursuit for shareholder earnings and profitability.

    My take on the matter is to let them have the consumer’s home. The consumer then makes the lender pay the price of foreclosure claiming recognition, for reclassifying the sales as debt and restating earnings.

    These UD attorneys are so smart that they may cost these bank power houses a debt load totaling about $3 trillion and more in liabilities left off the books. It’s a scary thought actually where you put Citigroup out while not looking and as they still struggle with a $65 billion tax tab carried by consumer taxpayers. BAC may end fighting for their life with a private right to call receivership.

    Foreclosures cannot continue in violation of GAAP and where lenders circumvent basis accounting laws while continuing to force the sale treatment issue and while denying they are controlling assets.

    It’s the best of both worlds with sale on the front side and as if it was leveraged borrowing upon liquidation and egress.

    As we sit I’ll show you the subtle instances of apparently innocent manipulation and confusion befallen o to the courts from errors and omissions which lenders are getting away with. That is happening as the courts say . . . . So what!

    The errors and omissions are the desperate means for seeking to maintain some semblance of SFAS140 adherence while employing lawyers as third parties appointed by agents of agents by a nominal interest.
    I personally have given up on the right MERS arguments as MERS is entitled to act as an accommodation and even a nominal interest, possibly.

    It’s just so easy for one to see the obvious that it has become lost. The nominee cannot execute instruments upon being replaced by the signature below it. Hello guys, right! That’s the purpose of the nominee! And, while one courts rules in favor of the consumer it misses the call.

    Something basic is getting lost and I’m not getting through. Unique “floating” entities cannot appear from nowhere to execute assignments by virtue of meritless appointments.

    If one of your cases is picked up by the Fed it should register a nice settlement . As one District court judge put it with disgust. . . “The SEC is turning into a penalty and fine system where they are to quick to settle the matter for a couple hundred million every time allowing the defendants’ to save face.”

    “That’s not bad!

    The US AG office thinks there is a case for bid rigging but I’m not sure the AG’s office knows where to look. Yet as one Judge told me in court “speak English.”

    The precise and distinct GAAP and FASB rules violation are clearly demonstrated in each foreclosure. Lenders are violating GAAP even with the recent codification, including revisions and interpretation.

    It’s all mind boggling when you consider the distance in communication here and counsel’s alternative to grab the lowest hanging fruit. . . .A RESPA audit (what is that anyway) and a QWR that together are just not going to cut it.

    These bank execs fail to realize maybe that these and other Enron style crimes, like those stated in the Fastow confessional, will gets you 10 years . . .at least.

    M.Soliman
    Witness to Counsel
    Expert.witness@live.com

  173. DO you want to be rid of fear, worry , and anger? See this video and email me if you have any questions: cmysmile00@aol.com

  174. Has anyone checked out the firms such as PrimeFinancialCenter –they are working for a hedge fund that is buying up distressed mortgage notes cheap and then arranging with homeowners who are in foreclosure, under water, etc. to re-paper their mortgage at 90% of current market value. The hedge fund makes the difference on the spread – they can buy the notes for extra cheap since they have the assets to buy in bulk and have the relationships with the banks and the claim is that the homeowner wins since they get a principal reduction, can stay in their home, have a new lender, and restored credit. Is this too good to be true? What are the pitfalls to doing this from the homeowner’s perspective?

  175. Related News:U.S. · Bonds .Fannie Mae Subpoenas May Find $30 Billion of Bad Mortgages, Analyst Says
    By Jody Shenn – Jul 21, 2010
    Email Share
    Business ExchangeTwitterDeliciousDiggFacebookLinkedInNewsvinePropellerYahoo! BuzzPrint Fannie Mae and Freddie Mac’s regulator may identify as much as $30 billion of debt included in mortgage bonds that the companies can force sellers to repurchase, according to Joshua Rosner, an analyst who in 2007 predicted the collapse in the market for the securities.

    The Federal Housing Finance Agency this month said it issued 64 subpoenas seeking loan files and other documents related to so-called non-agency mortgage securities bought by the two government-supported companies. The U.S. is trying to determine whether misrepresentations might require issuers to repurchase debt, producing funds from firms that may include Wall Street’s largest banks to help repay taxpayer money.

    Rosner’s estimate of the amount of bad loans the FHFA might find doesn’t equal how much Fannie Mae and Freddie Mac may recover because banks can argue some misstatements weren’t “material,” the New York-based analyst at independent research firm Graham Fisher & Co. said in a telephone interview. At the same time, the move bolsters other investors’ efforts, he said.

    “The most important thing is probably that the subpoenaed documents will support other private actions and other government-agency actions,” said Rosner, co-author of a May 2007 paper that said the failure of mortgage bonds would roil housing and financial markets. “It will cause a lot of unhappiness on Wall Street.”

    Corinne Russell, an FHFA spokeswoman, declined to comment.

    Fannie Mae, based in Washington, and McLean, Virginia-based Freddie Mac have already been forcing repurchases of loans they insure or hold directly at a pace drawing industry complaints. In the first quarter, the companies required lenders to buy back $3.1 billion, up 63 percent from a year earlier.

    Boosting Reserves

    In 2006 and 2007, Fannie Mae and Freddie Mac bought $227 billion of bonds backed by subprime or Alt-A mortgages, according to a report to Congress by their regulator. Those years produced the worst-performing non-agency securities, which lack guarantees from the companies or federal agency Ginnie Mae.

    JPMorgan Chase & Co., Bank of America Corp. and Citigroup Inc. were among banks that reported adding to reserves for their representations on sold or insured mortgages as they announced quarterly results this month. JPMorgan Chief Financial Officer Michael J. Cavanagh said July 15 on a conference call that his New York-based bank had received an FHFA subpoena, probably along with “all the major broker-dealers.”

    Alex Samuelson, a spokesman for New York-based Citigroup, and Rick Simon, a spokesman for Charlotte, North Carolina-based Bank of America, declined to comment.

    Litigation Over Disclosures

    The FHFA, which is tasked with limiting Fannie Mae and Freddie Mac’s losses after placing them into conservatorships in 2008, also oversees the Federal Home Loan Banks, the 12 government-charted cooperatives owned by U.S. financial firms.

    At least three of the FHLBs have filed lawsuits against Wall Street firms for mortgage-bond disclosures, with the San Francisco FHLB in March suing nine dealers over $19.1 billion in securities. Similar lawsuits by other investors have been dismissed by judges before reaching discovery because bondholders failed to offer enough evidence of inaccurate information.

    Mortgage servicers have hindered investors’ efforts to get debt repurchased by denying them access to loan files, citing a right to do so if they don’t own at least 25 percent of the deals, said Bill Frey, head of Greenwich, Connecticut-based securities firm Greenwich Financial Services LLC.

    “The subpoenas will hopefully stop the silliness,” Frey, who sued Bank of America’s Countrywide unit in 2008 over its servicing practices, said in a telephone interview.

    ‘Fraud Involved’

    Almost 38 percent of subprime mortgages contained in non- agency bonds are at least 60 days late, in foreclosure or already have been turned into seized property, according to Bloomberg data, which doesn’t cover liquidated debt. For loans deemed Alt-A because they fell between prime and subprime in terms of expected defaults, the figure totals almost 29 percent.

    “With what’s happened in the mortgage sector, we realize there was a great deal of fraud involved,” William Sidford, a senior vice president at AllianceBernstein LP, which manages almost $200 billion in fixed-income assets, said July 15 at the Securities Industry and Financial Markets Association conference in New York. “That being said, investors aren’t in a position to enforce the claims on those reps and warranties, rather we’re relying on the trustees and servicers to take action for us.”

    Those parties are often affiliates of the companies that would be forced to buy back bad loans, a conflict of interest that limits their actions, Laurie Goodman, an analyst at Amherst Securities Group, said at the conference.

    “I’ve had situations where a flagrant fraud is flat-out ignored,” Frey said. “A couple of years from now, these subpoenas will be seen as the first concrete step toward the recreation of the U.S. mortgage market.”

  176. Okay, so what do I do now. I re-financed my home woth TBW. They in turn transferred it to B of A. But I was not aware of this until some 3 months later. I had already made two house payments on it. When I lost my job, I was trying to get a loan modification that is when I found out the loan was transferred. How does what TBW legal issues affect me? Is there cause for a class action suit? How do I know if those payments were processed. Or were they included in the HUD/B of A loan modification that did go through. It is my understanding that B of A should not have taken the loan from TBW because TBW was clearly in violation of lending laws.
    Can I negotiate a better rate now with B of A?

  177. Foreclosures Likely to Surpass 2009 Levels

    Repossessions climbed 38 percent in the first six months of 2010 compared 2009 and were up 5 percent from the first quarter, foreclosure listing service RealtyTrac announced Thursday.

    In all, lenders repossessed nearly 528,000 homes in the first six months of the year. If that rate continues through the end of the year, repossessions will likely top 1 million in 2010, up 100,000 from 2009.

    Historically, about 100,000 homes per year in total are repossessed, according to Rick Sharga, senior vice president for RealtyTrac.

    More than 7.3 million home loans are in the foreclosure process, with one in 78 U.S. homes receiving a foreclosure warning in June.

    On average, it takes home owners 15 months to actually lose their property after they receive the initial warning, reports Lender Processing Services Inc.

    Source: Associated Press, Alex Veiga (07/15/2010)

    marcus@foreclosureProSe.com

  178. Neil / Chris , when will you get back to me on my securitization review? It has been since May 26, 2010, when I placed the order.

  179. FGIC default swaps worth 26 pct in auction

    http://www.reuters.com/article/idUSN0712360920100107

  180. U.S. RMBS Ratings Affected By FGIC, MBIA,
    And XL Capital Rating Actions
    The following tables provide the issuers, series, and CUSIPs for the classes of U.S. residential mortgage-backed
    securities (RMBS) transactions affected by the Feb. 26, 2008, insurance-related RMBS rating actions.

    http://www2.standardandpoors.com/spf/pdf/media/subprime_rmbs_fgic_mbia_xl_022608.pdf

  181. CoreLogic: 1Q Foreclosure Run-Rate at 1.23 Million Units

    By National Mortgage News Online

    July 13, 2010

    Residential foreclosures could top 1.23 million units this year, according to figures compiled by CoreLogic, Los Altos, Calif. In the first quarter 309,194 homes went into foreclosure, the company found, a 17% jump from the same period last year. In 2009 1.16 million homes went into foreclosure, a record.

    Meanwhile, figures CoreLogic calculated for The New York Times suggest that more than one in seven homeowners with loans in excess of a million dollars is seriously delinquent.

    The newspaper reported, “Though it is hard to prove, the CoreLogic data suggest that many of the well-to-do are purposely dumping their financially draining properties, just as they would any sour investment.” A CoreLogic senior economist noted, “The rich are different: they are more ruthless.”

    In other housing news, U.S. home prices rose 0.9% in May after a 1.3% monthly increase in April, according to the CoreLogic housing price index. The CoreLogic HPI, which is not seasonally adjusted and includes distressed sales, is up 2.9% since May 2009. Excluding distressed sales, the year-over-year price increase for May was 0.9%.

    “Home price appreciation stabilized as homebuyer tax credit driven sales peaked in late spring,” said Mark Fleming, chief economist for CoreLogic. “But given that the labor market and income growth remain tepid, we expect prices to moderate and possibly decline the rest of the year,” he said.

    The top five states with the highest price appreciation in May, including distressed sales, were: California (7.9%), Virginia (6.8%), Massachusetts (5.7%), Rhode Island (5.5%) and Vermont (5.1%). The top five states with the greatest price depreciation in May, including distressed sales, were: Idaho (-6.6%), Alabama (-5.3%), New Mexico (-4.2%), Maryland (-3.1%) and Wyoming (-3.1%).

  182. Fannie, Freddie U.S. Regulator Subpoenas Firms That Sold Debt to Companies
    By Lorraine Woellert – Jul 12, 2010

    The Federal Housing Finance Agency subpoenaed firms that sold mortgage-backed securities to Fannie Mae and Freddie Mac as the regulator aims to determine whether issuers can be held liable for losses on the debt.

    FHFA, which has overseen the government-sponsored mortgage companies since they were placed under conservatorship in September 2008, issued 64 subpoenas seeking loan files and transaction documents, FHFA said today in a news release. The U.S. is trying to determine whether misrepresentations or omissions might require issuers to repurchase loans, FHFA said.

    “By obtaining these documents we can assess whether contractual violations or other breaches have taken place leading to losses for the enterprises and thus taxpayers,” FHFA Acting Director Edward J. DeMarco said in the statement.

    Fannie Mae and Freddie Mac, the largest sources of funding for U.S. residential mortgages, relied on so-called private- label debt backed by subprime loans to help meet a federal mandate to promote homeownership. The federal government took control of the companies in 2008 after the collapse of the U.S. mortgage market pushed them toward insolvency. They have been sustained by a promise of unlimited Treasury Department aid that has yielded $145 billion for the companies so far.

    FHFA said documents were being sought only for securities the agency plans to review and declined to say which companies were subpoenaed. Recipients have 30 days to provide the requested documents, the agency said in its statement.

    Financial Inquiry

    “This is a financial inquiry, not an investigation or a lawsuit,” FHFA said. “The conservator seeks the information to determine whether losses sustained by the enterprises are the legal responsibility of others and to ensure that the obligations of the various parties involved have been met.”

    Mortgage-backed securities issuers including JPMorgan Chase & Co. and Goldman Sachs Group Inc. are fighting lawsuits from private investors who claim they were misled about the health of loans they packaged and sold.

    Fannie Mae, based in Washington, and Freddie Mac of McLean, Virginia, own or guarantee more than half of the $11 trillion U.S. mortgage market. As of May, Fannie Mae owned $87.1 billion worth of mortgage-backed securities and Freddie Mac held $168.1 billion, according to regulatory filings.

    Given their role in the mortgage market, Fannie and Freddie had the data necessary to determine whether the pools of loans they were buying were healthy, said Anne Canfield, executive director of the Consumer Mortgage Coalition, a Washington trade group of residential mortgage lenders.

    “Of anybody in the market they had the ability to assess what the underlying quality was of those mortgages,” Canfield said today in a telephone interview.

    To contact the reporter on this story: Lorraine Woellert in Washington at lwoellert@bloomberg.net.

  183. Bank of America Says $10.7 Billion of Trades Wrongly Classified
    By David Mildenberg and Dakin Campbell – Jul 10, 2010

    Bank of America Corp., the largest U.S. bank by assets, said it wrongly classified as much as $10.7 billion of short-term repurchase and lending transactions as sales from 2007 to 2009 to reduce its end-of-quarter assets.

    Bank of America said the inaccuracies aren’t material and “don’t stem from any intentional misstatement of the Corporation’s financial statements and was not related to any fraud or deliberate error,” according to a May 13 letter released yesterday from the U.S. Securities and Exchange Commission.

    “A $10.7 billion accounting error would be a material event for about 99.9 percent” of U.S. banks, said Cornelius Hurley, director of the Morin Center for Banking and Financial Law at Boston University School of Law. “It’s hard to see how the SEC can accept BofA’s rejoinder as being sufficient.”

    SEC spokesman John Nester declined to comment.

    The SEC sent letters to finance chiefs at about two dozen firms in March asking whether they employed accounting strategies like those at Lehman Brothers Holdings Inc. The bankrupt securities firm was accused of using repurchase agreements called Repo 105s to move assets off its balance sheet to hide leverage, thereby improving its capital ratios.

    $2.3 Trillion

    Bank of America had disclosed in a March 31 financial filing that “certain sales of agency mortgage-backed securities should have been recorded as secured borrowings rather than sales,” bank spokesman Jerry Dubrowski said. “The handful of transactions did not have a material impact on the company’s balance sheet or earnings. They need to be viewed in the context of our $2.3 trillion balance sheet.”

    In April, the SEC asked Bank of America to disclose whether its transactions were intentionally mislabeled, and to prove that the trades were immaterial. The Charlotte, North Carolina- based bank said in an April 13 letter that it stopped the transactions after the first quarter of 2009, the SEC said.

    The Bank of America transactions involved six so-called dollar-roll trades completed during 2007, 2008 and 2009. The amount of the trades represented 0.1 percent of total assets in the December 2008 quarter and improved the company’s Tier 1 capital leverage ratio by one basis point, or one-hundredth of a percentage point, during the September 2008 quarter, the bank said.

    Bank Review

    The bank said in its May 13 letter it did an “extensive review” of repurchase agreements and similar transactions and didn’t find more errors. The mistakes didn’t affect credit ratings or management compensation, hide any failure to meet analysts’ consensus estimates, “mask” other trends or put the bank out of compliance with loan and capital requirements, the bank said.

    Bank of America was led by Chief Executive Officer Kenneth D. Lewis from 2001 through the end of 2009, when he retired and was succeeded by Brian Moynihan. In January, Moynihan moved Joe Price, the chief financial officer since January 2007, to run the company’s consumer banking unit. In May, the bank hired former Northrup Grumman Corp. executive Charles Noski as CFO.

    The bank transferred mortgage-backed securities to a trading partner with the idea of receiving different securities later and classifying the deals as sales, the Wall Street Journal reported yesterday. The securities the bank received were similar to those it got rid of, meaning the transactions can’t be considered sales, the newspaper said.

    To contact the reporters on this story: Dakin Campbell in San Francisco at dcampbell27@bloomberg.net David Mildenberg in Charlotte at dmildenberg@bloomberg.net

  184. Partial Victory in SB 1137 Case June 7, 2010 Liz Freeman
    in Compliance BulletinCompliance BulletinsPublic
    June 7, 2010
    Comments by M.Soliman
    expert.witness@live.com

    The recent June ruling by the California Court of Appeals renders its decision in a lawsuit filed contending section 2923.5, which was codified by SB1137 in 2008. SB1137 was enacted in response to the significant rise in residential mortgage foreclosures due to the financial crisis.

    In arguments the primary purpose of the statute was to require mortgagees, trustees, beneficiaries, or their authorized agents (hereafter, “lenders”) to explore alternatives to foreclosure with their borrowers before filing a notice of default.

    The primary mechanism established was the requirement by the lender to wait 30 days after contacting the borrower (or 30 days after satisfying specified due diligence requirements) before filing the NOD.

    The borrowers in this case, who seek to act on behalf of a class of similar plaintiffs, sued Aurora Loan Services to prevent foreclosure on the grounds that it did not comply with Section 2923.5.

    In particular, the borrowers alleged that Aurora failed to describe specifically how it attempted to contact them (Aurora used generic language indicating compliance with Section 2923.5) and failed to certify that the declaration was made under penalty of perjury.

    The trial court granted a motion for a preliminary injunction based on the allegation that Aurora did not contact the borrowers as required (the facts are in dispute), but later ruled that the suit was preempted by federal law (Aurora is a subsidiary of a federal savings association), and that plaintiffs were required to tender the full amount of the deficiency as a prerequisite to bringing an action under Section 2923.5.

    CBA filed an amicus curiae brief on behalf of Aurora on the issues of private right of action, specificity of specificity, and the alleged penalty of perjury requirement. Last week, the Appellate Court rendered its decision.

    The following is a summary of that decision.

    Private right of action. Section 2923.5 does not provide that a private right of action to enforce the statute is either allowed or disallowed. In finding that plaintiffs may sue to enforce compliance with Section 2923.5, the Court relied on the disputed precedents that a private right of action may inhere within a statute when such a right is necessary to achieve the statute’s policy objectives.

    It noted that the 2923.5 is imbedded within a series of statutes (from Section 2924, together with Sections 2924a through 2924l) in connection with rules involving foreclosure.

    Section 2924g(c)(1)(A) sets forth the grounds for postponement of foreclosure sales, and includes the possibility that a court may issue an order postponing sale.

    Reading the two statutes together, the Court held that Section 2923.5 allows a remedy of postponement of foreclosure. As the right conferred by Section 2923.5 is for the borrower to be contacted to assess and explore alternatives to foreclosure, it would defeat the purpose of the statute to require the borrower to tender payment as a condition of enforcement.

    Therefore, no tender is required.

    The Court did not adopt authority supporting the proposition that if a defaulting borrower requests a court to exercise its equitable powers to stop or set aside foreclosure proceedings, the borrower must first “do equity” by tendering the entire loan amount prior to the sale.

    The Court also did not respond to the argument that, even if there was a violation, borrowers could not demonstrate what harm is caused.

    However, the Court did hold that an action may not be brought under Section 2923.5 as a class action because the question of the adequacy of the attempted or actual contacts is fact-specific.

    That is, they differ from one member of the class to the next. Thus, it would be nearly impossible to determine whether a lender complied with the contact requirement in any specific instance without an examination of individual claims separately.

    This is an important holding, as viewed by the banking community as it removes much of the incentives and leverage that plaintiffs attorneys need in order to bring these suits.

    Preemption. The Appellate Court rejected Aurora’s argument that Section 2923.5 is federally preempted as to a subsidiary of a federal savings association. As the statute is narrowly drawn, the industry did not discuss preemption when the bill was negotiated in the Legislature. Real property law has traditionally been the exclusive domain of the states, and the Appellate Court did not find any specific provision in the Home Owners’ Loan Act that indicated a legislative intent that the federal law of thrifts preempts state laws on foreclosure procedures.

    The Court arrived at this conclusion in the face of OTS regulations that could easily be construed to preempt Section 2923.5. 12 CFR Section 560.2 lists numerous categories of state laws that are preempted. The Court reasoned weakly that 2923.5 did not require lenders to engage in any of these activities, only that they contact borrowers, assess their condition, and explore other options.

    However, the Court suggested that an action brought under 2923.5 could be deemed preempted to the extent that expansive remedies are sought beyond simply “assessing” and “exploring” alternatives to foreclosure. For example, the Court considered an action under 2923.5 not to survive a preemption challenge if the borrower sought to compel the lender to consider a new loan application or provide loan counseling, as those are preempted servicing and origination activities.

    Specificity of declaration. The Appellate Court agreed with CBA’s argument that the mandatory declaration need only track the language of Section 2923.5(b) and need not delineate precisely how any particular means of contacting the borrower was attempted. From a practical standpoint, the Court recognized that different, multiple persons may be involved in contacting borrowers and preparing declarations, making it unlikely that the Legislature intended that each declaration is required to be custom drafted.

    The upshot is that, because an action under Section 2923.5 may not be brought as a class action, and the only remedy is a delay of foreclosure until the contact and other requirements are satisfied, plaintiffs counsel will have less incentive to bring these actions in the future.

    This is the text of Aurora’s statement: “The Beneficiary or its designated agent declares that it has contacted the borrower, tried with due diligence to contact the borrower as required by California Civil Code section 2923.5, or the borrower has surrendered the property to the beneficiary or authorized agent, or is otherwise exempt from the requirements of section 2923.5.”

    © This CBA Regulatory Compliance Bulletin is copyrighted by the California Bankers Association, and may not be reproduced or distributed without the prior written consent of CBA.

  185. Marcus,

    In Florida, a retired judge has the same authority as an elected judge. We used a retired judge for all our eminent domain cases in Orange County because the case load was very high.

  186. Rocket Docket Spreading Across Florida
    I have noticed that a lot of counties are now bringing retired judges to hear foreclosure cases. If you witness some of the proceedings you will see that justice is not served. Most of time the judge has no knowledge of the case and entirely rely on the oral argument of whom ever happened to be present. He rules with no evidence to support the decision. I am wondering if the order of a retired judge is legally binding; after all he/she is not elected by the people.
    Instead of seeking real solution to the crisis, they are taking the easy road of speed at the expense of justice.

    marcus@foreclosureProSe.com

  187. Palm Beach County Courts Hire Foreclosure Help
    Source: South Florida Business Journal
    07/07/10

    With nearly 53,000 pending foreclosures clogging the courts, Palm Beach County Clerk and Comptroller Sharon Bock is beefing up her payroll.

    The clerk said the court will hire as many as 15 temporary employees devoted solely to helping clear a backlog of foreclosure cases.

    The clerk’s office is using $403,000 it received from the Florida Legislature to hire the temporary helpers. Each of the state’s 67 clerks received a share of $3.6 million the Legislature appropriated earlier this year to help Florida’s courts speed up its handling of foreclosure cases.

    All the temporary posts are expected to be filled by week’s end.

    Bock said the additional funding still falls short of covering the full cost of processing foreclosure cases in Palm Beach County. She estimated the state’s cash would cover about 16 percent, or 8,400 foreclosures.

    “We’re grateful for the money to hire additional employees,” Bock said in a statement. “However, a one-time appropriation is not a long-term solution to the crippling backlog we’ve seen in our courts.”

    After foreclosure judgments are entered, each case requires an average of two hours of additional staff time to complete the paperwork. Then, in about a quarter of the cases, foreclosure sales are canceled and reset, which requires clerks to repeat much of the same work.

    “We’re going to do the best we can to work quickly,” Bock said. “However, people must understand that the role Florida’s clerks play in handling these foreclosure cases is complex and involves multiple steps.”

    Florida’s foreclosure crisis has hammered courts at the same time as many courts faced budget cuts. The Palm Beach County clerk’s office saw $7.1 million in budget cuts last year, prompting the elimination of 109 jobs. Bock estimated that her office faces a $3.2 million budget gap in the current fiscal year.

    marcus @ foreclosureProSe.com

  188. A Must Watch for Everyone

    outstanding!! Indymac, OneWest & FDIC

  189. Comments: The beginning of the fraud was pre-closing and closing of the loans prior to securitization.

    Soliman – Forget the servicing, pooling and salvaging agreement. Its got nothing to do with securities. Claims are liited to the loan that was sold and that is that.

    Whats sold is lost forever to the seller. So who is foreclosing on you?

    M.Soliman
    expert.witness@live.com

  190. We continue to conduct foreclosureinfosearch (LOL) into how lenders legitimize their actions versus uncovering the fraud. What I have seen or attest to know, so shall I witness and that is what I publish.

    Upon reflecting I came up with a few interesting moments:

    • A chain of title after the fact showing the foreclosing parties Deutsche Bank as the buyer and the foreclosed party as the seller on the date of the alleged auction.

    •In trial a major lenders counsel questions a RE Broker (what) on the witness stand for 30 minutes before being asked to sit down by the presiding judge. The Homeowner as Plaintiff won.

    •Upon testifying being asked by how the court can be certain the lender was not ripped off.

    •A trustee’s sale where a county crier comes out and calls out the property address and asks for bids and while bids are made the person runs back into his office and locks the door.

    •Seeing a borrowers transfer the lenders interest out of the lenders name and the court refusing to allow a lender to transfer title back to itself.

    It’s a fact the practices and procedures in foreclosure are tainted and deceptive. A loan sold by the lender, a member bank, is conditioned by a repurchase, precedent to making any offers to assist a borrower in default..

    Now you can see why so many modifications fail!

    My years in this industry have shown where YOU must determine where the lenders actions are verifiably wrongful, impossible and willfully act against the consumers and investors best interest.

    There is your opening and defense against a wrongful foreclsoure.

    M.Soliman
    expert.witness@live.com

  191. Bedbugs attacking Goldman Sachs employees!!

    Huffington Post under the Goldman Sachs tab has the story about the bedbugs!! Floors have had to be evacuated, dogs who sniff out the bugs brought in, major spraying!!

    Let’s hope the bedbugs are spray resistant!!

  192. UPDATE -New Century – Home123 Corp bankruptcy chapter 11 — case 07-10416 (KJC)

    from this mornings hearing: the judge and the trustee in this case are now worried about a ‘floodgate’ opening for a slew of homeowners victimized by the predatory lender (originator) New Century Mortgage or Home123 Corporation, who may file APs or Adversary Proceedings alleging TILA, fraud, fraudulent transfers, RESPA etc.

    There are over 7 pro se’s now who have filed APs up there in New Century-Home123 bankrupcty case. There may be more that are unknown to me.

    We have success with late filed Proof of Claims. Since most homeowners did not even know of the fraudulent and predatory acts by New Century or Home123 Corp until well after New Century-Home123 declared their bankruptcy on 4-02-2007. I don’t think any homeowner was paying attention to whether or not New Century-Home123 declared their bankruptcy. We’ve been filing Motions to Accept Late Filed Proof of Claims.

    MY advice to ANY homeowner victimized by New Century or Home123 Corp is to consult an attorney and consider filing
    an AP or Adversary Proceeding up in their bankruptcy case immediately.

    In a prior hearing it was discussed that the bankruptcy case still has around $140 million dollars and that possibly more $$ might be coming from the New Century bankruptcy trustee’s 2 cases against KPMG (the auditor of New Century). The cases are billion dollar cases.

    Negotiations between the trustee and the larger creditors is ongoing with settlement details not discussed in hearings.

    Strongly advise victims of this predatory lender to contact reputable attorney to discuss APs.

    The beginning of the fraud was pre-closing and closing of the loans prior to securitization.

  193. Did you see this one:

    FROM CALIFORNIA ATTY. GENERAL BROWN re: foreclosure and mortgage servicing fraud

    Brown Issues Warning about Rise of Foreclosure and Mortgage Servicing Fraud…

    Wanna bet this will NEVER happen….

  194. Great graphics and stats and overall comprehensive report, but WHAT has the FBI done when we’ve complained to them about mortgage fraud?

    Does the FBI even have a category for what we are experiencing at the hands of the creative gap-filling “due diligence” firms in the employ of the defrauding foreclosure mills?

    (Aside to MSoliman: where can I find me a structured fiance’?)

    RSVP
    ALLAN
    BeMoved@AOL.com

  195. FROM CALIFORNIA ATTY. GENERAL BROWN re: short sales

    News Release
    June 17, 2010
    For Immediate Release
    Contact: (510) 622-4500
    Contact: Christine Gasparac or Evan Westrup, (510) 622-4500
    Christine.Gasparac@doj.ca.gov or Evan.Westrup@doj.ca.gov
    Print Version

    Brown Issues Warning about Rise of Short Sale Fraud

    LOS ANGELES – Attorney General Edmund G. Brown Jr. today joined the California Department of Real Estate and the State Bar of California to warn homeowners about an alarming rise in short sale fraud across California in a field “rife with scam artists”.

    A short sale is an arrangement in which a homeowner sells his or her home for less than the outstanding mortgage, with the consent of the lender.

    “While short sales can provide homeowners with a last-ditch alternative to foreclosure, this market is rife with scam artists,” Brown said. “Homeowners and buyers, agents, and lenders should beware of short sale negotiators who operate without licenses, use straw buyers or charge illegal fees.”

    With so many homeowners now considering short sales, an entire industry of so-called short sale negotiators has emerged. These individuals solicit homeowners by promising to expedite the process and help coax lenders into taking part in the transaction.

    The Department of Real Estate is investigating more than 40 complaints of short sale fraud, up from “virtually zero” cases only three months ago, a spokesman said.

    In April, the Obama administration launched a new initiative called the Home Affordable Foreclosure Alternatives Program, which encourages homeowners in financial distress — especially those who have failed to complete a trial modification or qualify for a loan modification — to consider a short sale as an alternative to foreclosure.

    Before working with — or paying — any short sale negotiator, homeowners should consider the following red flags:

    No license
    With limited exceptions, only licensed real estate agents or attorneys can engage in short sale negotiations with a homeowner’s lender.

    Up-front fees
    Licensed real estate agents wishing to collect up-front fees from homeowners for short sale transactions must first submit an advance fee contract to the Department of Real Estate and receive a no-objection letter.

    Surcharges
    With many distressed properties listed well below market value, negotiators and agents are charging potential buyers thousands of dollars in surcharges and hidden fees just to place an offer on a home. These illegal fees are frequently not disclosed and are paid outside escrow.

    Straw buyers and house flipping
    In this scheme, short sale negotiators misrepresent the market value of a property to a homeowner’s lender by only submitting offers on the property from an affiliated straw buyer. After the home is purchased below market value, the fraudsters immediately flip it and pocket the difference.

    Short sale negotiators and agents use a number of titles including debt negotiator, debt resolution expert, loss mitigation practitioner, foreclosure rescue negotiator, short sale processor, short sale coordinator and short sale expeditor.

    If you are a homeowner who has been scammed, contact Brown’s office at 1-800-952-5225 or file a complaint online at: http://www.ag.ca.gov/consumers/general.php

    .

    Homeowners can also learn more about avoiding mortgage and real estate fraud by visiting the Department of Real Estate website at: http://www.dre.ca.gov/cons_alerts.html

    . A complaint form can be accessed online at: http://www.dre.ca.gov/frm_consumer.html

    .

    “Short sale fraud appears to be the fraud of the moment, and it is proliferating statewide,” according to Real Estate Commissioner Jeff Davi. “Consumers, licensees and lenders must all arm themselves with the tools necessary to avoid such scams.”

    Homeowners can file a complaint against a lawyer, a legal specialist or a company purporting to operate as a law firm with the State Bar by calling 1-800-843-9053 or visiting: http://www.calbar.ca.gov

    .

    Homeowners can learn more about the federal government’s Home Affordable Foreclosure Alternatives Program by visiting: http://makinghomeaffordable.gov/hafa.html

    .

    Non-profit housing counselors certified by the U.S. Department of Housing and Urban Development are also available to provide free help to homeowners. To find a counselor in your area, call 1-800-569-4287.

    For more information on Brown’s work against loan-modification fraud visit: http://ag.ca.gov/loanmod

  196. House Targets Underwater Homeowners
    First Posted: 06-10-10 02:24 PM | Updated: 06-10-10 03:21 PM

    The House GOP launched an assault Thursday on homeowners who walk away from underwater mortgages, arguing that such foreclosed-on former homeowners are using the money they save to dine out and go on cruises.

    “The Wall Street Journal has reported on families that have chosen to stop paying their mortgage and instead use the extra money they are saving each month to ‘buy season tickets to Disneyland…take a Carnival cruise to Mexico…’ and go out to dinner more often,” says House Republican leadership in an e-mail to colleagues explaining the anti-strategic-default effort.

    In other words, consumers with more money tend to spend it, spurring demand — exactly what the economy needs. More than a few economists argue that the ongoing jobless crisis is a direct result of a lack of consumer demand. A homeowner stuck in an underwater mortgage is, each month, paying off a mortgage that is worth more than their home. The increased cost of housing means that money that could otherwise could be circulated through the economy – at restaurants, Disneyland, or on cruises, for instance – is sent off to Wall Street, whose profits have been soaring despite the economic downturn.

    The GOP offered its provision as “motion to recommit,” which is one of the minority party’s few ways to amend a bill on the floor. Known as an MTR, the motion is generally stripped out in the Senate if it is adopted in the House. Such measures are put forward more to score political points than to craft policy, but the mood of the House can sometimes be gleaned from the vote’s outcome. In this case, Democrats chose not to fight, and accepted the motion with a simple voice vote.

    Mark Zandi, chief economist at Moody’s Economy.com and an adviser to John McCain’s 2008 presidential campaign, says that strategically defaulting is “a form of stimulus, a little tax cut.” Estimates of the number of homeowners are underwater range from 10 to 15 million.

    Dean Baker, an economist with the progressive-leaning Center for Economic Policy and Research, agreed that strategic defaults are good for the economy, but also noted the irony that the GOP effort interferes with the market.

    When Democrats were pushing to enact “cram down,” which would allow judges to rewrite mortgage contracts in bankruptcy court, conservative Democrats and the GOP argued that it would violate the “sanctity of the contract.”

    Story continues belowThere is only sanctity, however, for one side of that contract. “It also disgusts me that the Republicans would use Big Government to interfere with the sanctity of contract,” said Baker in an e-mail. “Those who do a strategic default are complying with their contract. The deal was that the banks get back the house if the homeowner doesn’t pay the mortgage. Now, the Republicans are arguing that the nanny state has to look out for the little boys and girls at the big banks who are too dumb to understand contracts. They are going to use the power of the government to punish people because they acted on the terms of the contract to the disadvantage of the banks.”

    Baker said that the GOP position should put to a rest the assumption that liberals favor big government while conservatives favor free markets. He doubted that it would, however.

    “It’s kind of an overreach by the federal government, isn’t it?” teased Rep. George Miller (D-Calif.), chairman of the Education & Labor Committee, when told of the GOP motion. He said he hadn’t been aware of the voice vote, but said he was sure it wouldn’t become law. The motion, he said, is indicative of GOP priorities.

    “They’re back to punishing the poor guy that got stuck with the subprime mortgage and we haven’t yet figured out what to do with the people who gave them the mortgage,” said Miller.

    This story has been updated to include the Democratic acceptance of the MTR.

    Read the GOP memo on their motion to recommit:

    From: Vieson, Chris Sent: Thursday, June 10, 2010 10:15 AM Subject: WHIP LD Alert: Republican Motion to Recommit FHA Reform

    The Republican Motion to Recommit H.R. 5072, the FHA Reform Act, would amend the bill to prohibit individuals who strategically default on their mortgage from accessing the FHA program and protect taxpayers from financing a bailout of FHA programs.

    Strategic Defaults

    A strategic default occurs when a borrower decides to stop paying their mortgage even though they can still afford their payments. It is usually undertaken by those who owe more on their mortgage than their home is currently worth.

    The Wall Street Journal has reported on families that have chosen to stop paying their mortgage and instead use the extra money they are saving each month to “buy season tickets to Disneyland…take a Carnival cruise to Mexico…” and go out to dinner more often.

    Companies have even sprung up to capitalize on the new trend with websites advising people (for a fee) on how to go about a strategic default. These companies actually advertise that after a few years an individual who chooses to default on their mortgage should be able to buy a home again, including through government loan agencies.

    60 Minutes reported on individuals who defend their decision to strategically default saying, “…with the money savings that I will have in four to six years, I’m confident I’ll have money to buy my way into a house if I want to.”

    Strategic defaults raise costs for responsible borrowers, many of whom may currently be struggling to make their mortgage payment themselves, but who take their obligations to pay their debts seriously. The MTR would ensure that no one who chooses to simply stop paying their mortgage, even though they can afford to do so, is able to benefit in the future from the government’s FHA program.

    Future Bail-Outs

    The Republican motion also protects American taxpayers from possible future bailouts of FHA programs. Washington currently has a bailout culture at the expense of hard-working Americans and this MTR puts into place protections against FHA receiving a taxpayer-backed bailout.

    The Republican MTR is a vote to expose and prevent fraud and abuse from FHA and protect the American taxpayer from another Washington bailout.

  197. MORE FRAUDSTERS CAUGHT BY CALIF ATTY GENERAL BROWN!!!

    News Release
    June 09, 2010
    For Immediate Release
    Contact: (510) 622-4500
    Contact: Christine Gasparac or Evan Westrup, (510) 622-4500
    Christine.Gasparac@doj.ca.gov or Evan.Westrup@doj.ca.gov
    Print Version

    Three More Suspects Nabbed in Million-Dollar Bait-and-Switch Home Refinance Scam

    LOS ANGELES – In a continuing probe into a defunct Southern California mortgage brokerage, Attorney General Edmund G. Brown Jr. today announced the arrests of president and co-owner Sean McConville and two associates who used “deceptive promises and forged documents” to steal almost $1 million from homeowners falsely guaranteed attractive home loan refinancing packages.

    “These criminals employed a classic bait-and-switch in their refinance scheme,” Brown said. “With deceptive promises and forged documents, they maliciously cheated homeowners who trusted them and just wanted a fair deal.”

    Brown’s office initiated its investigation in October 2008 in response to more than 70 complaints against the defendants and their mortgage brokerage business, ALG Capital, Inc. The brokerage operated out of Calabasas from early 2006 until late 2007 and then moved to Mission Hills until it shut its doors in 2008.

    Brown’s investigation found that f! rom April 2007 to October 2008, the owners and their associates lured dozens of borrowers into refinancing home loans by falsely promising low interest rates, minimal broker fees and other attractive terms. The brokerage then negotiated different terms with lenders.

    When homeowners were presented with closing documents, they bore the terms promised, but which the lenders never approved. After homeowners signed the closing documents, key pages were removed and replaced with pages bearing the terms that the lender had actually agreed to. The homeowners’ signatures were then forged on the replacement pages, and ALG forwarded the forged documents to the escrow company.

    Homeowners only discovered they had been defrauded when they received the final loan documents with the true terms and their signatures forged on closing cost disclosures, Truth-in-Lending disclosures, loan applications and other documents.

    Additionally, ALG collected al! most $1 million in undisclosed fees, charging homeowners up to! $57,000 in broker fees. In total, dozens of homeowners were locked into almost $30 million in loans with terms they did not agree to.

    As a result of this scheme, many homeowners were forced to sell their homes, come out of retirement, or tap retirement savings. Others paid significant prepayment penalties, including over $21,000 in one case. Borrowers also rarely received the large cash-outs they were promised as part of the refinance.

    Sean McConville, 30, of Austin, Texas, president and co-owner of the brokerage, was arrested early yesterday morning at his residence. He is being held at the Travis County Jail in Texas pending extradition. He was previously convicted of robbery in November 1997.

    Matthew Bourgo, 27, of Thousand Oaks, who posed as a licensed notary for the brokerage, was arrested yesterday afternoon at his residence. He is being held in Ventura County Jail and will be transferred to Los Angeles County.
    Joseph Nguyen, 37, of Woodland Hills, a former loan officer for the brokerage, was also arrested yesterday afternoon at his business, where he worked as a chiropractor. He is being held by authorities in Los Angeles County.

    The suspects are each being held on $29.5 million bail.

    In September 2009, Brown’s office arrested three others involved in the bait-and-switch scam, including Michael McConville, 32, of Simi Valley, Sean’s brother and co-owner of the brokerage, Alan Ruiz, 29, of Huntington Beach, a former loan officer and Garrett Holdridge, 24, of Palmdale, who was convicted of seven felonies in March for his involvement in the scam.

    Investigators located victims in dozens of California cities, including: Auburn, Altadena, Arroyo Grande, Azusa, Bakersfield, Berkeley, Burbank, Calabasas, Castro Valley, Chino, Compton, Corona, Fairfield, Fontana, Fremont, Fresno, Garden Grove, Glendale, Hemet, Highland, Huntington Beach, La Habra! , La Mesa, La Mirada, La Quinta, Lancaster, Livermore , Los Angeles, Lo! ng Beach, Manteca, Martinez, Monterey, Murrieta, Nice, Northridge, Oakland, Ontario, Palmdale, Pasadena, Perris, Petaluma, Pomona, Quartz Hill, Rancho Cucamonga, Redlands, Reedley, Rialto, Sacramento, San Clemente, San Diego, San Jose, Santa Rosa, Sierra Madre, Spring Valley, Stanton, Temecula, Whittier, and Winnetka.

    The complaint, filed in Los Angeles County Superior Court, includes the following charges: 38 counts of grand theft, 19 counts of forgery, three counts of elder abuse, and one count of conspiracy to commit grand theft.

    Brown also filed suit against the McConville brothers in May 2009 for running a property tax reassessment scam which targeted Californians looking to lower their property taxes. The brothers billed tens of thousands of homeowners throughout California nearly $200 each for property tax reassessment services that were almost never performed and are available free of charge from local tax assessors.
    # # #

    You may view the full account of this posting, including possible attachments, in the News & Alerts section of our website at: http://ag.ca.gov/newsalerts/release.php?id=1933

  198. Another reason to fight your foreclosure. These banksters really got some nerve…
    —————-
    Source: RISMedia (06/08/10)
    Lenders Warn Foreclosure May End in Lawsuit
    The housing crisis will spark a wave of lawsuits filed by lenders seeking to recoup loses on home sales and foreclosure auctions that do not return enough money to pay the mortgages in full, according to real estate and legal experts.
    Experts predict that mortgage companies will begin to sue home owners in the next two years, including borrowers who ransack a house that has been lost to foreclosure and those who walk away from “underwater mortgages,” with hopes of discouraging others from such behavior.

    Lenders are unlikely to target borrowers who negotiate in good faith or have defaulted on their home due to job loss or other unforeseen circumstances; other borrowers could be hounded by collection agencies that have purchased their mortgage debt from their lender.

    marcus@foreclosureProSe.com

  199. No Foreclosure No Way Possible . . .that means they cannot recover losses by liquidating the subject property as in a foreclosure.
    By MSoliman

    Los Angeles/June 8th 2010 —I am often reminded by the claims of soured borrowers that a lender took advantage of them. The court said you took the loan correct?

    It is so important to remain grounded and to continue to study research and better articulate claims that the lender cannot foreclose. Remeber your the holder of title in fee and must protect title from adverse claims and alienation.

    First there are accounting rules that make it near impossible for a pristine clinical approach to structured fiancé to survive the various rules, amendments and other conditions for which a Trust can survive and foreclose on a borrower.

    This is a tricky maneuver which establishes a basis in assets held and that employs gain on sale accounting. The evidence for laying claims in this one area deal with the FASB and the SEC staffs (EITF D-69) determination that gain (or loss) on sale accounting is not elective in a securitization that is accounted for as a sale. This is damaging to a lender who will have to explain how the withheld the assignment under a claim of changing accounting policies to benefit earnings, delinquency reporting and finally foreclosure.

    How to consolidate and realize losses are another issue and the timing of such may be a monumental SEC violation for manipulative reporting of earnings and losses. Here is where prepayment, loss or discount rate assumptions may not be tailored so as to force a zero gain. In order to report zero up-front gain, the securitization must therefore be structured as a financing rather than a sale in virtually every case.

    Little if any press or mention is given to derecognition which will become lost to the registrant lenders reporting subject to having to restate. Herein is where off balance sheet financing “gimmicks” were disastrously employed and required the Federal Savings Bank to release its rights to collateral and recovery.

    Translated that means they cannot recover losses by liquidating the subject property as in a foreclosure.

    What they received was valuable shares of stock and capital received from the sale of that stock which is now valued at market. In other words the stock is worthless.

    A lender will jump back in and be portray to foreclose it does so in a secretive and deceptive manner employing debt collectors and agents in lieu of a fiduciary such as a trustee.

    In doing so it believes it can reverse the structured financing arrangement and return the purchase and sale format into a subprime mortgage lending platform now solely designed to foreclose and replace defaulted consumers with new borrowers.

    Call a qualified CPA and get the facts. Our take on all this is “No Can Do!”

    MSoliman
    Mail to: expert.witness@live.com

  200. Hello Mr. Garfield and/or anyone else having opinion.

    I brought suit over a year ago in Seattle to enjoin the sale of my home. The suit named Wamu, Chase and Deutsche Bank. I gained a TRO through my local small town court, no problem.. And then the case was quickly removed to a Federal setting.. The Federal judge did not care one lick that the bank’s could not produce the note.. That was the end of my case.. but in this non-judicial state, the 120 day rule to foreclose was exceeded resulting in the sale being canceled – good for me for a while..

    Next, I filed Chapter 11 stopping the next sale and then changed my mind and ended up not following through with the chap. 11, which bought me another 5 months…

    Now the vultures are again knocking on my door, taking drive by photo’s and posting recycled paper on my door.. yikes.

    My question for anyone is.. How best to proceed? I guess I could file chapter 11 again giving me time to collecct my BK documents.. (another temp. fix) or bring suit again..

    If I were to bring suit again.. How can I keep the case out of Federal court? That is my main question. I have downloaded Mr. Garfields Objection letter which is a good launching point for a pro se guy like me going it alone and trying to draft up a complaint..

    Any and all input graciously accepted..

    Thank you for an excellent website and resources..

  201. I recently logged into Pacer and I downloaded a Chapter 11 Bankruptcy case where the debtor owns 9 homes from California to New York. The Bankruptcy Judge approved his Chapter 11 Plan which allowed the debtor to Strip Away the unsecured amounts of his mortgage loans. His 1st, 2nd and 3rd TD notes to the fair market value of his properties. Also allowed him to pay 2% interest only payments on the reduced principal amounts for 5 years and then the post I/O payments after 5 years are increased to 4% for 40 years. The unsecured amounts of the Strip Away the debtor pays zero. Therefore the 2nd gets nothing, the 3rd gets nothing and even the 1st is reduced to the fair market value.
    The Case number is 08-bk-16828-MT filed on 09/10/2008 in California.

  202. Lisa D., on June 1, 2010 at 5:40 am Said:
    MSoliman,Subpoena who’s General Ledger … the Originator? The Trustee/Trust, the Servicer/Master Servicer, the Seller, the Depositor???

    Good question. In fact I have not done this for a while . OUTSTANDING QUESTION ! As JFK would say…”let me say this about that!”

    The originator is the lender then seller and then the depsoitor. The trust is a pass through so no trustee or master servicing agent to account for.

    MSoliman
    expert.witness@live.com

  203. TILA violations are a tort and civil violation subject to penalties and other awards. The “recession is a suckers play whereby the lender has an out under a statute of limitations.

    I’ll give you a ten day rescission right now…how will you tender the balance due to restore the parties to the time of the origination.

    I am stuck on the appellate courts comments when denying these cases. (Remember, my deposition in a similar case) before the CA appellate court was enough to grant t a trial.

    I have won my share of cases I was retained or allowed to consult counsel before testifying. There more than any attorney acting alone that I am aware of.

    At a scheduled hearing I went to a hearing last week we had one calendared for the third time since the sale last November. Hmmmmmm.

    At the other, the judge called out to the attendees asking for no more than 15 minutes. We went over an hour and my testimony was heard; the defense fought hard while in the wrong jurisdiction. The loss was inevitable due to lack of jurisdiction.

    The comments made by the court are woefully sufficient to appeal due to jurisdiction over issues such as arguments the court should not have allowed introduced, Judges Lack of understanding by his own admission and plaintiff perjuring himself before the court. Oh yes, that attorney will see us again and have explaining to do I can assure you.

    Collection companies reposes cars get it – not homes. They are debt collectors stepping in for the servicing agents hand off as called for in the indenture. What genius has allowed them to pursue a fiduciary role in a trustee sale? Really, the things I hear and read and the “gems” that get left out a re mindboggling.

    I think the judges facial expressions told us he was begging to get the matter out of his courtroom. This is a general ledger matter and case of wrongfully prosecuting the terms of a note lost to the originator.

    Here is a little freebie:

    •Loans Held – Loans on Line = Gain / Loss on Sale.
    •Loans Held – Loans on Line = Basis in Assets and Contribution value

    I recently heard someone at the hamburger Hamlet say “make him stop? Why….why? Want to know the only was a lender can circumvent the above accounting representation? Get out of here, go away!

    Lending cannot support financing gimmicks such as derecognition and provide a lender the basis in the asset underwritten solely to contribute to a denovo. Basis accounting, De novo and contribution value- still do not understand? Ask one of the other experts will you or your RESPA auditor (What is a forensic RESPA auditor . . . WTF)

    Do you realize these loans were traded for securities 10 times their value and used as a depositor base for “other” preferable lending opportunities by the big three lenders? You (borrowers were nothing more than a source of capital that was tenfold the CD market and borrowers paid for their cost of capital.

    Don’t like what you hear now. Then just turn it off as a TILA argument seeking rescission won’t help you ….AT ALL. It’s called mutual culpability. Instead of loving this fight and defending title you’re looking for a break no one else can find.

    The lender is the servicing agent and cannot influence control over the asset sold as cannot the lender. Their willingness to circumvent the accounting rules FAS 140 (Enron) are subject to a dangerous confidence the public and courts cannot understand the relevance of complex financial structure. Judge Boyko decision and the recent findings of the audit of Lehman Bros. federal investigation yield the same arguments I’ve made since 2002.
    But both miss the brass ring. The delayed assignments by MERS allows for their critical component of so called self insured risk mitigation.

    They can add and subtract loans at will and maintain a zero delinquency in a robust market. Everyone in foreclosure just happens to be an asset owned by the foreclosing bank. Everyone else paying on time is a sold asset.
    Get their Chief Financial Officer in a deposition and that person will incriminate himself and the company. I will force them into a difficult situation causing them to perjure themselves or to incriminate their firms.

    I don’t see any of these attorneys who get it. I know what I am saying here.

    M.Soliman
    Expert.witness@live.com

  204. A side bar to Attorneys that get it,

    Attorneys require the use of an expert. Your expert MUST be capable of having lived through the isuues surrounding the problems that end up in court.

    Case law and theory wont cut it. An audit is a

  205. Marcus: Thanks for your opinion. I just want to make it clear that I cannot vouch for some of these attorneys. I also want to say that there are many more. My experience with George Gingo has been excellent and from what I have seen, I agree completely that Matt Weidner is a person who “Gets it” and a person to go to.

  206. Top Florida Foreclosure Defense Attorneys

    * Matt Weidner P.A
    * Ricardo, Wasylik & Kaniuk PL
    * Ice Legal P.A
    * Jon B. Coats Jr. P.A
    * George M. Gingo P.A
    * Stopa Law Firm

    marcus@foreclosureProSe.com

  207. MSoliman,

    Subpoena who’s General Ledger … the Originator? The Trustee/Trust, the Servicer/Master Servicer, the Seller, the Depositor???

  208. A good defense has nothing to do what so ever with winning back a home you stopped making payments on. FAS 140 are straightforward rules stating a transferor may only derecognize a financial asset, or a component of a financial asset, if it has surrendered ‘control’ over it.

    Know this – upon de-recognition, a gain or loss is recognized for the difference between the carrying amount of the transferred asset and the proceeds received in exchange. Subpeona the genreal ledger for crying out loud.

    To avoid prosecution and criminal indictments by the SEC and under banking and general accounting rules these lenders are using clandestine and secretive means to foreclose through third parties such as MERS and collection agencies.

    Veterans fought for democracy and justice is blind where not made to see the crime. Open your eyes first to the accounting fraud and back off the legal interpretation.

    These courts and judges are CRYING out for a wining argument and there it is …use it!

    m.soliman
    expert.witness@live.com

  209. Barclays Announces HomEq Servicing Sale to Ocwen

    May 28, 2010

    Barclays Bank has agreed to sell HomEq Servicing, its U.S. mortgage servicing business, to Ocwen Loan Servicing, a subsidiary of Ocwen Financial Corp.

    The sale is for a consideration of around $1.3 billion, payable in cash on completion. The consideration is subject to an adjustment mechanism based on the unpaid principal balance of the servicing portfolio and the value of certain other assets at completion of the transaction.

    “After thorough review, we have determined that HomEq is no longer core to our strategy,” Brandon Ashcraft, Barclays spokesperson, said. He added that as part of this transaction, Barclays has secured an agreement with Ocwen that will enable the bank to leverage the Ocwen platform to provide mortgage servicing to its clients when required.

    As part of the deal, Barclays has agreed to provide Ocwen with about $1.0 billion in secured financing and may assist Ocwen in raising added third-party financing. The sale’s completion is subject to customary conditions such as competition clearance and is expected to happen in the third quarter.

    HomEq is the U.S. mortgage servicing business of Barclays Capital and services mortgages with an unpaid principal balance of around $28 billion as at March 31. The principal assets subject to the deal are the mortgage servicing rights and associated servicer advances, as well as the servicing platform based in Sacramento, California and Raleigh, North Carolina.

    Subject to regulatory approval, the sale is expected to have a small positive impact on Barclays core tier one capital ratio, principally as a result of the release of capital deductions. The transaction is not expected to have a material impact on the bank’s earnings per share.

    “Barclays Capital is committed to providing first-class products and capabilities to our clients worldwide,” said Tom Hamilton, securitized products trading head at Barclays Capital. “We look forward to continuing to serve our issuer and investor clients from our position as a leading underwriter and market maker of securitised products.”

    Above from Structured Finance News

  210. May 28, 2010

    Mortgage Bankers Association
    The MBA

    Gentlemen;

    FAS 140 and related summary, conditions and events under codification provides consistent standards for distinguishing transfers of financial assets that are treated to date as sales. This to avoid and differentiate the transfers deemd in reality secured borrowings.

    No GAAP rules interpretation has ever received so much attention.

    The new administration has done all they can to change the “sale” accounting rules under GAAP and various pronouncements made over a decade under FASB.

    Specifically FAS 140 and SFAS 140 are my concerns with no mention here for revised rules and codification. Summary of Statement for Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities-a replacement of FASB Statement No. 125 (Issued 9/00)

    This Statement revised from earlier standards for accounting for securitizations and other transfers of financial assets and collateral requires certain disclosures, carries over most of Statement 125’s provisions without reconsideration.

    Again, we are talking about accounting and reporting standards for bulk asset transfers and servicing receivables whereby the logical accounting practices address offsetting value by liabilities.

    (Financial Assets – Liabilities) = Net Value
    —————————————-
    Servicing Assets

    Controversy surrounds what I opine are two debilitating factors cause for the implosion of the markets. First is dereconginition or for the extinguishments of liabilities based on consistent application of a financial-components approach second focuses on controlling interest in assets sold subsequent to transfer.

    The MBA by its own admission clearly states no modifications are possible but fail to include foreclosure in this discussion. The feasibility or prohibition of one event is linked to the other.

    If a QSPE ceases to be qualifying because it no longer meets the qualifying conditions in FAS 140, a transferor of the loans to the QSPE would be required to record a ‘repurchase’ of any remaining previously transferred loans to the QSPE and recognize any liabilities assumed.

    The effect would be an expansion of the transferor’s balance sheet to include loans to which they no longer have legal title and liabilities they are not legally obligated to pay, with negative financial statement and regulatory capital implications for the company.

    Consequently, if it were determined that estructurings of troubled loans would cause QSPEs to cease to be qualifying, mortgage servicers could be discouraged from restructuring loans that are expected to end up in foreclosure, to the disadvantage of transferors, servicers, investors, borrowers and communities

    The first leg of the transfer has no accounting purpose what so ever. Gain on sale accounting consisting of a proverbial whole loan asset to cash transfer that requires a gain on sale treatment. Therein are the colorful concerns for the “missing” assignments which are mute to this discussion.

    Subpoena the general ledger of the seller. The second leg of travel is the transferring of cash for securities which is what I believe is capitalization of new business segments using tax payer insured deposits.

    Come on FDIC regulatory chiefs of staff. This is a monumental fraud and you’ve known about it. Upon any transfer of financial assets, an entity recognizes the financial and servicing assets it controls and the liabilities it has incurred, derecognizes financial assets when control has been surrendered, and derecognizes liabilities when extinguished.

    Either a “Repo” exists needed to foreclose or no foreclosure is possible. The fact these moron attorneys and brokers are foreclosing will either bankrupt America or continue to foster secretive and fraudulent acts by the parties trying to back door the lender into the asset they lost at sale.

    Please see the clandestine use of MERS and nominal benficiary arguments then see the cause and need to employ this fraud. These mortgages are charged and written down to zero and you cannot recover zero. So the collection agencies are picking up homes from homeowners being diverted by offers of modification and short sales. These homes are up for grams and only the Fee Title holders can fight from a position of strength and fend off adverse claims lacking merit.

    How many homeowners went to their financial death not even knowing the strength of their arguments which were made over two years ago? How many?

    You’re not using these obvious accounting rules to your benefit? FASB and the MBA have evidenced in wiring the acknowledgement a lender who sold the loan cannot foreclose on the borrower.

    Foreclosure equates to major Bank Default while foreclosure restraint equal proper “sale” accounting compliance. Your using these MERS situational conditions and third parties sham sales should result in over one trillion being added to the balance sheets of America’s strongest banks due from recognition and that would spell complete financial disaster.

    Servicing assets a servicing company owned by a lender and whereby it they both control the asset subsequent event means the liabilities must be incurred. Only upon release of the right to foreclose can the lender or NA continue to derecognize financial assets when control has been truly surrendered, and it derecognizes the liabilities when extinguished.

    Respectfully;

    M. Soliman
    Witness to Counsel
    Tel. 213-880-6288
    Mail to:expert.witness@live.com

    Only an licensed attorney can offer or provide legal advice. The parties herein accepts no responsibility for written material, general opinions, comments, open answers and non binding responses to questions when providing information.

    Only an attorney licensed in the state can offer or provide legal advice.

  211. Very great article with lots of great information. The workshops that you’ll be having look excellent! I’ll be sure to find a way so i can get out to one of them. That’s very interesting and shocking that around 11 million households are in the position of being underwater! Hopefully that will change and things will get better.

  212. Lack Of Evidence Of Individual’s Authority To Execute Assignment Of Mortgage Sinks Foreclosing Assignee In Attempt To Lift Stay In Ch. 13 Proceeding

    Home Equity Theft Reporter
    Wednesday, May 26, 2010

    In a recent ruling by a U.S. Bankruptcy Court in Boston, Massachusetts, a foreclosing lender was denied relief from an automatic stay to foreclose on a mortgage. As the basis for its ruling, the court pointed to the failure of the foreclosing lender, Property Asset Management, Inc. (“PAM”), who purportedly acquired its interest in the mortgage via an assignment, to prove that the multiple-corporate-hat-wearing individual who executed the assignment on behalf of the assigning company had authority to do so.(1) Accordingly, the court found that the foreclosing lender failed in its burden of proving that it had authority to foreclose, standing to move for relief from the automatic stay, and therefore denied the lender’s motion for relief from the stay, without prejudice to renewal upon proper proof.

    For the ruling, see In re: Moreno, Case No. 08-17715-FJB (Bankr. D. Mass., Eastern Div. May 24, 2010).

    (1) In denying the lender’s motion for relief from the automatic stay, the court made the following analysis (bold text is my emphasis, not in the original text):

    * As the party seeking relief from stay to foreclose a mortgage on the debtor’s property, PAM bears the burden of proving that it has authority under applicable state law to foreclose the mortgage in question and, by virtue of that authority, standing to move for relief from the automatic stay to foreclose.

    ***

    * To show that it presently holds the mortgage, PAM must show a valid assignment of the mortgage from MERS to itself. PAM contends that it holds the mortgage by assignment from MERS. Accordingly, PAM must show that the assignment, which was executed for MERS by Denise Bailey, was within the scope of Bailey’s limited authority to act for MERS.

    * Ms. Bailey’s authority to act for MERS is defined in the MERS Authorization in seven enumerated paragraphs. In each, Ms. Bailey’s authority to act is dependent on the existence of a specified relationship of Litton, the MERS member by whom she is employed, to the loan in question. PAM has submitted no evidence of the existence of any such relationship. The beneficial owner of the loan at the time of the assignment was Aurora Bank FSB, but there is no evidence that Litton was at the time the servicer of the loan for Aurora Bank FSB or was registered with MERS as such.

    * The Court does not find that Aurora Bank FSB had not retained Litton as its servicer; there is simply no evidence on the issue. But the burden is on PAM to prove that it had, and PAM has not adduced evidence to that effect.

    * Accordingly, by a separate order, the Court will deny PAM’s motion for relief from the automatic stay without prejudice to renewal upon proper proof.

  213. Ancient Historical Quote From Neil Garfield, circa June 30, 2009

    “…… I think we will be seeing more from Judge Bailey but bravo to the Judge for being so insightful ……. ”

    —————————————————-

    via: Matt Weidner Blog:

    BOMBSHELL- Miami Judge Sanctions Florida Default Law-Wipes Out Mortgage on Home

    May 25th, 2010

    FLORIDA DEFAULT LAW IS AMONG THE MOST RUTHLESS FORECLOSURE MILLS OPERATING ACROSS THE COUNTRY- THEY COMMIT GROSS ABUSES EVERY DAY IN COURTROOMS ALL ACROSS THE STATE- READ HOW ONE JUDGE HAS SANCTIONED

    The full transcript can be found here:

    http://mattweidnerlaw.com/blog/wp-content/uploads/2010/05/transcriptmiami.pdf

    FROM THE FLORIDA DAILY BUSINESS REVIEW- MAY 25, 2010

    All Orlando Eslava wanted from his lender was a loan modification to make his payments affordable. Instead, he got his $207,000 mortgage wiped out — and a crash course in the confusing way foreclosures are unfolding in a court system chock-a-blocked with cases. The teacher was Miami-Dade Circuit Court Judge Jennifer Bailey, who cancelled Eslava’s debt after lender HSBC Bank USA ignored her previous order to post a $414,000 bond. Bailey said the actions of William Huffman, HSBC’s lawyer from Tampa-based Florida Default Law Group, were “contemptuous,” according to a court hearing transcript.

    HSBC’s run-in with Bailey began in December 2009 when she granted the lender’s motion for the foreclosure sale of Eslava’s one-bedroom unit at El Dorado Tower in Aventura. But HSBC lost the note on Eslava’s property.

    So the judge ordered the lender to post a $414,000 bond to indemnify Eslava in case another lender filed a claim against the unit.

    According to court records, HSBC and Florida Default
    DID NOT POST THE BOND AND PROCEEDED WITH AN APRIL 9 FORECLOSURE sale that gave the lender title to the condo.

    Eslava and his lawyer, Sheleen Khan, sought to overturn the sale, claiming the lender violated Bailey’s court order.

    At a May 6 hearing, Bailey dismissed the foreclosure case with prejudice, which prevents the lender from suing Eslava again.

    THE JUDGE ALSO CANCELED THE MORTGAGE and ordered HSBC to return title of the condo to Eslava.

    “None of us is above the law,” Khan said. “This is a landmark ruling.”

    In addition to canceling the mortgage, Bailey chastised Huffman, according to a transcript of the hearing obtained by The Daily Business Review. “When the order is simply ignored … at the end of the day, you’re the lawyer, you’re responsible,” she said. Bailey did not sanction Huffman but said he should consider her order a “wake-up call.”

    “Some day, this foreclosure crisis is going to be over, and you need to decide what kind of lawyer you are going to be,” Bailey told him. “Because at the end of the day, you are responsible for your client’s compliance with court orders.” Huffman apologized. He said his client failed to post bond because he had misunderstood the order, according to the transcript. “I don’t want apologies,” Bailey replied. “I want performance. I want responsible attorneys who meet the basic standards of knowing what … is going on in their files.” Huffman did not return a telephone call or e-mail seeking comment. Bailey’s frustration with the lender and Florida Default weren’t limited to Eslava’s case. She complained about the general “chaos and disorganization” of lenders and their lawyers. Suzanne Hill, who represented Huffman and his firm at the hearing, said Florida Default was weighing its options, which include appealing Judge Bailey’s ruling or seeking a rehearing. Hill, who is with the law firm of Rumberger Kirk & Caldwell in Tampa, declined further comment.

    An attempt to buy time

    Eslava, 53, a residential agent with Carden Realty & Investment in Sunny Isles Beach, says he fell behind on his $1,800 monthly mortgage payments when home sales plummeted in 2008 and commissions became scarce. He retained Sheleen Kahn two months before the foreclosure auction and says he never sought to get his mortgage canceled. He just wanted more time to negotiate with the lender. “I wanted to lower the payments because I want to keep my home … this is my home,” said Eslava. He said he spent thousands of dollars to repair the unit after it was damaged by Hurricane Wilma in 2005.

    Last Nov. 6, months before the foreclosure auction, HSBC had placed Eslava into the Obama administration’s Home Affordable Modification Program (HAMP). The lender reduced Eslava’s monthly payments from $1,800 to $620 and put him in a three-month trial. Under such a trial, the reduction is temporary and the bank uses the time to decide whether the borrower can afford to make the reduced payment over the long term. Eslava said he never heard back from the lender after the trial period expired. But he says he continued to send payments to HSBC of $620 a month. Despite making those payments, the bank sold his condo.

    His isn’t an isolated case, according to those who work with distressed homeowners. “It is not infrequent,” said Arden Shank, executive director and president of Neighborhood Housing Services of South Florida in Miami. “We worked with families who had that happen to them.” His organization receives public funding to help owners save their home from foreclosure.

    The agency recently helped another family obtain a loan modification in Miami-Dade County, but the lender did not cancel the foreclosure sale. Four months ago, the family lost the house in an auction. They got the title back after Neighborhood Housing hired a lawyer who convinced a judge to overturn the sale. Shank said actions like that can undermine national efforts of programs like HAMP to keep homeowners in their homes. That was the case of Eslava.

    “If lenders are implementing the HAMP program and then their two different departments don’t communicate and don’t know what each other is doing, then that is kind of problem in implementing HAMP,” Shank said. Initially, Judge Bailey sided with Florida Default’s request to proceed with the sale but ordered HSBC to post the bond by April 2. On April 9, the bank sold the condo without posting the court-ordered bond. Kahn. Eslava’s lawyer, filed an objection to the sale. At the May 6 hearing, Judge Bailey expressed disbelief that HSBC had opposed canceling the sale when Eslava was still in the middle of a loan modification trial.

    She called the bank’s opposition “idiotic,” according to the transcript.

    “You are filing pleadings in court every day and you don’t even know what’s going on with the case,” she told Huffman, the HSBC lawyer. “In no other species or kind of law would that be remotely acceptable, or frankly, anything short of malpractice. But somehow in Foreclosure World everybody thinks that is just fine, that you can know absolutely nothing about your files and walk in here and ask judges for things left and right without even knowing what’s going on.”

    Eslava, who had never been to a courthouse before his foreclosure case, said he never expected he would learn so much about the court system in such a short time. “This was a lesson for me,” said Eslava. Fort Lauderdale attorney Jed Frankel, who witnessed the exchange while awaiting a hearing in his own case, said he was stunned by the judge’s decision to cancel the mortgage, but not by the bank’s actions.

    “It is very unusual to see this type of sanction entered,” said Frankel, who frequently represents condo associations on foreclosure-related matters. “That’s a very severe sanction. But it was a very well thought out ruling.” Frankel said he had a similar experience recently, when Deutsche Bank was sanctioned for not complying with a court order related to the foreclosure of a unit at King Cole Condominium in Miami Beach.

    Frankel said Miami-Dade Circuit Court Judge William Thomas ordered the lender to pay the condo association more than $4,000 for ignoring the judge’s court order to proceed with a foreclosure sale of a condo or pay $1,221 in condo dues. “Judges are looking at these cases a little bit differently than they would have four, five years ago,” said Frankel, who represents King Cole. “They are more aware of what is going on in the foreclosure cases.”

  214. General Question–yes, what you wrote is confusing. I can only comment on this:

    I had a recorded document signed/notarized by a person on
    May 27, 2007 but recorded on June 15, 2007 and it had a hand-written note on it stating ‘effective date April 4, 2007′. Thus they were trying to back-date it by writing ‘effective’.

    I believe in Calif. this is not allowed, especially if the ‘effective’ back-dating was to accommodate the date the NOD was sent out, April 4, 2007.

    The document was a Substitution of Trustee, so one would think it would be very important in a non-judicial state.

    Recorded docs are important but you should have other ‘meat’ to your case.

  215. GQ,
    What state are you in? Some defenses are weaker than others. You may have better chance attacking the problem from another angle.
    In order to beat a MSJ you need to plant seeds of doubt in the Plaintiff case.
    1) is the plaintiff the original lender?
    2) Does the plaintiff have the original note and mortgage/deed of trust?
    3) Is the assignment date post-lawsuit or pre-lawsuit?
    4) Is the notary proper on all affidavits and assignments?
    5) Do you have any discovery pending?

    All these should help you oppose the Motion for Summary Judgment.

    marcus@foreclosureProSe.com

  216. Defective acknowledgments: the judge determined that acknowledgments on a mortgage still renders the document valid as between parties so allowed the MSJ to be granted in favor of the lender. In short, equitable interests in the mortgages.

    ?: Because the document is not recordable, is the effective date the date the document is executed?

    Warranty Deed Defective: we just discovered that the warranty deed that was signed is also defective because of the acknowledgments. The warranty deed is dated April 23, 2004 and not executed by the grantor until April 26..

    ?: the deed was not executed by the grantor until April 26, 2004 or 3 days after it was executed by the grantee. Does this affect the Mortgage if we did not have legal title to the property. (mortgage is lawfully seized of the property) All documents are not recordable and are deemed good as between parties.

    Sorry if this is confusing

  217. Four Arrested, Five Wanted for Fleecing Hundreds of Homeowners Seeking Foreclosure Relief

    **NOTE: Contact information for victims willing to speak with the press is available upon request**

    LOS ANGELES – Attorney General Edmund G. Brown Jr. today announced that nine men engaged in a Southern California boiler room, tricked out in high-roller style with a roulette wheel and other casino equipment, have been charged with 97 criminal counts for stealing at least $2.3 million from more than 1,500 desperate homeowners who were promised loan modifications but received no relief.

    Arrested Tuesday and Wednesday night were Gregg Scott Quinn, 37, of Camarillo and Juan Pierre Washington, 40, of Winnetka, who worked as company sales managers and supervisors. They are being held at Los Angeles County Jail.

    Gary Arnold Eisenberg, 71, of Westwood, a top telemarketer with the company, and Ira Itskowitz, 58, a sales manager, each spent more than five years in federal prison for previous fraud convictions and are already in federal custod! y for violating parole in connection with their participation in the scheme.

    The four principal owners of the business, Niv Iskin, 30, of Reseda, Reviv Karpman, 38, of Tarzana, Tomer Kogman, 29, of Receda and Avraham Yechizkia, 34, of Encino; and a sales manager, Barel Iskin, 23, of Woodland Hills, are still being pursued by law enforcement.

    “This company was just a boiler room, long on promises and upfront fees but short on foreclosure relief,” Brown said. “Its operators cruelly defrauded citizens trying valiantly to hang on to their homes.”

    Brown’s office initiated its investigation in March 2009 in response to numerous consumer complaints against the defendants’ Canoga Park-based loan modification business, which operated as Mason Capital Group, LLC and Gretchen Fox and Associates.

    When agents executed a search warrant at the office, they found a Las Vegas casino-themed sales floor complete with craps, poker and bl! ack jack tables fashioned as workstations, and a roulette whee! l that top-selling telemarketers spun for cash bonuses (see photos attached).

    Between January 2008 and June 2009, the four owners took in at least $2.3 million in up-front fees, which ranged from $1,000 to $5,000, from more than 1,500 homeowners throughout the country. In almost every case, no loan modifications were completed, as promised. Financial records indicate that the four owners spent hundreds of thousands on private school tuition, travel, entertainment, shopping and other personal expenses while running Mason Capital Group, LLC and Gretchen Fox and Associates.

    To corral sales, the four owners used a telemarketing operation that targeted homeowners facing mortgage payment increases or foreclosure. During an initial call, the telemarketers touted the company’s team of “attorneys, forensic accounting personnel, and loan negotiators” available to negotiate reductions in interest rates, monthly payments and principal balances; their suppos! ed 90% to 100% loan modification success rate and refund guarantee. The telemarketers then collected financial information from homeowners to determine if they “qualified” for the company’s services.

    Soon after the initial call, homeowners received a follow-up call to inform them that their case had been “reviewed” and “approved.” Telemarketers closed sales by insisting the approval would expire unless homeowners acted quickly, while reminding them about the refund guarantee if promised results were not achieved.

    In fact, the company completed very few loan modifications, rarely contacted lenders, failed to honor the refund guarantee, employed unlicensed “loan processors” and had no legal staff negotiating with lenders.

    While homeowners waited, they were told their loan modifications, or refunds, would be voided if they tried independently to contact their lender. Many lost their homes to foreclosure as a result.

    To skirt the state’s foreclosure laws, avoid paying refunds and concea! l profits, the owners changed company names, claimed bankruptcy and shifted loan modification files to another business they created called, American Financial Group, LLC.

    Investigators located victims in dozens of California cities, including: American Canyon, Anaheim, Antioch, Artesia, Atwater, Bakersfield, Ceres, Chico, Cotati, Cloverdale, Crestline, Delano, Elk Grove, Encino, Fountain Valley, Fremont, Fresno, Guerneville, Hanford, Hayward, Hercules, Hood, Indio, La Jolla, Lancaster, Laguna Hills, Lodi, Long Beach, Los Angeles, Manteca, Modesto, Montclair, N. Hollywood, Newhall, Newman, North Highlands, Oakdale, Oakland, Ontario, Palmdale, Pittsburg, Pleasanton, Poplar, Porterville, Redding, Richmond, Riverbank, Rodeo, Sacramento, San Jose, San Pablo, Santa Clara, Santa Rosa, Sebastopol, Stanton, Stockton, Tracy, Tulare, Turlock, Union City, Upland, Valley Village, Van Nuys, Visalia, W. Sacramento and Yuba City.

    Brown’s office will seek restit! ution for victims of this scam.

    By law, all individuals and businesses offering mortgage foreclosure consulting or loan modification and foreclosure assistance services must register with Brown’s office and post a $100,000 bond. It is also illegal for loan modification consultants to charge up-front fees for their services.

    Non-profit housing counselors certified by the U.S. Department of Housing and Urban Development provide free help to homeowners. To find a counselor in your area, call 1-800-569-4287.

    If you are a homeowner who has been scammed, contact Brown’s office at 1-800-952-5225 or file a complaint online at: http://www.ag.ca.gov/consumers/general.php

    .

    Brown has sought court orders to shut down more than 30 fraudulent foreclosure relief companies and has brought criminal charges and obtained lengthy prison sentences for dozens of other deceptive loan modif! ication consultants. For more information on Brown’s action against lo! an modification fraud visit: http://ag.ca.gov/loanmod

    .

    The 97 criminal counts filed against the nine defendants, include 63 counts of grand theft, 26 counts of unlawful foreclosure consulting, 7 counts of tax evasion and 1 count of conspiracy.

    The United States Postal Inspection Service assisted in the investigation.

    Copies of the complaint, filed in Los Angeles County Superior Court, and the Arrest Warrant are attached.

  218. AIG Presentation explains their insurance process, tranches etc.

  219. Residential Delinquencies Jump, $1Trillion in Loans Past Due

    By National Mortgage News Online

    May 19, 2010

    Residential delinquencies climbed to yet another new high at March 31 with 10.06% of all mortgagors behind on their payments, according to new figures released by the Mortgage Bankers Association (MBA).

    According to calculations made by National Mortgage News using MBA’s findings, that means $1 trillion in both first and second liens are now in arrears.

    Compared to the same period a year ago, late payments rose 10%. Late payments worsened in all delinquency categories, but there was a slight respite in the “seriously delinquent” bucket which includes loans that are 90-days or more late or in foreclosure.

    The trade group found that 9.54% of all mortgages were seriously delinquent at March 31, a slight improvement from the 9.67% number recorded at yearend.

    At March 31, 7.24% of all loans were seriously delinquent.

    The MBA also reported that first-quarter commercial and multifamily mortgage originations came in higher year-to-year but lower quarter-to-quarter.

    Originations were up 12% compared to the same period last year but down 26% from the fourth quarter of 2009.

    “The results of the survey showed changes in commercial and multifamily mortgage loan origination levels varied significantly between investor groups,” said Jamie Woodwell, MBA’s vice president of commercial real estate research. “However, it’s hard to draw conclusions based on first-quarter numbers given seasonal effects, such as the industry’s usual push to finalize deals before the end of the year, resulting in lower first-quarter origination activity.”

  220. Is there anybody out there who could give the name of a lawyer in Los Angles County who is willing to fight instead of settle? I keep trying to get a good lawyer who is willing to really fight the fight and all they want is money and rush the process after charging their retainer upfront. All they want is easy cases.

    IT’S URGENT!! PLEASE HELP!!

  221. The REAL reason Banks Won’t Modify Your Loan
    Mortgage servicers are ripping off not only homeowners but the pension funds and hedge funds who have invested into Mortgage Backed Securities. What they’re doing is reminiscent of what was portrayed in the Martin Scorsese film, Casino, where the local mob Capos would “skim” large sums of money off the top of the casino revenues before they were counted and sent to the bosses in the mid-west.
    You see many moons ago a group of financial wizards devised a scheme to auction off mortgages owned by the federal government and turn mortgages from long-term commitments (that only financial giants like governments, banks and insurance companies were willing to own) into a commodity that any investor could buy and sell.
    Today, the vast majority of loans are originated with the intent of selling them on the secondary market packaged together in pools called special purpose vehicles or trusts by underwriters who represent government sponsored enterprises, investment banks or commercial banks. These special purpose vehicles are then repackaged and re-disbursed to investors all over the world. Bonds are issued for the different categories of payments, including interest payments, late payments, principal payments and prepayment penalties. Different groups of investors or tranches may get paid from different categories and in a different order.
    Tax and accounting rules were set up to govern these trusts or Real Estate Mortgage Investment Conduits (REMICs) and they were set up to ensure that the assets of the trust are passively managed. This means they are handled by someone else usually a servicer. This type of management is required because the trusts receives preferential tax treatment: so as long as the trust complies with these management guidelines, the TRUST IS NOT REQUIRED TO PAY TAX ON ITS INCOME, thus increasing the profitability of the trust. Compliance also allows investors insulation from the bankruptcy of the entity that transfers the mortgages into the securitized trust. Without this protection, creditors from the originator could seize mortgage loans from the trust to satisfy debts incurred by the originator. This business model morphed into what is essentially a legally run multi-trillion dollar tax-free Ponzi scheme. This scheme is so large it makes Bernie Madoff’s empire look like a kindergarten production of the movie,Wall Street.
    The only problem was the guys at Treasury, the Federal Reserve and the banks never consulted with the guys at NASA about Newton’s theories of gravity when they set this up. Who can blame them, they were bankers not rocket scientists. Once investors stopped buying mortgage backed securities, this created a domino effect across credit markets and eventually reached the homeowner. People stopped buying homes and property values plummeted faster than contestants on a Japanese game show. Overleveraged homeowners now owed more on their mortgages than their house was worth.

    The rise of the MBS industry has created a new generation of loan servicers. Up until the meltdown, loan servicers were dutiful and passive in public, but yet behind closed doors yielded great power.
    The sole purpose of these servicers was to collect and process payments on mortgage loans. While some specialize in subprime loans, some servicers specialize in loans that are already in default (so-called special servicers). There are companies that contain entire families of servicers: prime and subprime, default and performing. Some of these servicers are affiliated with the originating company. Nearly half of all subprime loans are serviced by either the originator or an affiliate of the originator. However even when the servicer is affiliated with the originator, it no longer has exclusive control over the loan or an undivided interest in the loan’s performance. Servicers are usually collecting the payments on loans someone else owns and then pay the Trustees on a quarterly basis and this relationship is governed by the Pooling and Servicing Agreement or PSA. The PSA is essentially the agreement between the servicer and the trust which details the responsibility of both parties.
    Servicers receive their revenue two ways. First, they receive the majority of their revenue from acting as an automated pass-through accounting entity whose mechanical actions are performed offshore or by a computer system. Second, servicers generally profit from servicing fees based on a fixed percentage of the total unpaid principal balance of the loan pool and interest income on homeowners’ payments held by the servicer until the service has to make payments to the investor. They then deduct any pay outs at an inflated rate for taxes and insurance or any affiliated business arrangements from the payments to the investor.
    After the meltdown, mortgage servicers were no longer willing to play a passive role in public. The servicers were smart and they quickly figured out that if they acted quickly they could profit from the financial chaos around them. Servicers were flooded with requests for modifications from upside down homeowners. They quickly seized on the idea that they could exploit their ability to skim off the top of the payments to investors by exaggerating their cost estimates and by increasing the outstanding balances of the loans in the trust. There was one problem with that idea; most homeowners in late 2007 early 2008 were not yet behind on their payments.
    What servicers began doing next is shocking! They began to tell homeowners they would not negotiate a modification unless they were 90 days behind on their payments. Publicly the excuse was because they needed to rescue as many homeowners as possible before moving on to stable homeowners. This wasn’t entirely true. Let’s be honest, this was a blatant lie. What they weren’t saying is how much their profit margins increased by encouraging people to go into default. The longer someone stays in default the more profit they made by misleading both the trustee and the homeowner. This gave the servicers incentive to push homeowners into delinquency and keep them there indefinitely with or without a pending modification.
    When the homeowner would submit the application for the modification, the lender would drag out the approval process by repeatedly claiming they lost the paperwork. Again, this all goes back to their profit margin on loans in default and the outstanding balances of the pool. This is why when HAMP was announced in 2009, servicers were included into the program. HAMP was intended to encourage servicers to modify loans but the cash incentives offered by the federal government were not large enough to entice the servicer to abandon the profitable business model of skimming off the top.
    Another misleading statement made by servicers is that they need approval from the trustee to approve a modification. This is another lie. Due to the passive management requirement of the trust under REMIC guidelines, investors have little control and seldom influence the servicer’s actions when it comes to modifying a homeowner’s loan and thus have full discretion to negotiate a modification of a loan for the homeowner. Most PSA also impose no meaningful restrictions against servicers who negotiate modifications and actually authorize modifications. In most cases, the PSA immunizes the servicer from litigation from investors when they do modifications.
    Servicers also use the excuse that REMIC guidelines penalize them from doing loan modifications. This is also not factual accurate. REMIC rules offer an “escape” clause. REMIC rules state that a loan can be modified when it is in default or a default is reasonably foreseeable.
    The shocking thing about this whole scheme is its not independent companies doing it. It’s the major banks. Wells Fargo, JP Morgan-Chase, Bank of America, HSBC, they all do it. That’s right. These banks who received corporate welfare checks in the billions of dollars are now pocketing money from some sweet old grandmother’s pension fund. So while grandma is forced to eat cold oatmeal because she can’t afford to heat it up, banking executives from Citibank and JP Morgan-Chase go in front of congress and claim they had nothing to do with it.

  222. Thanks Abby, I left my comments. Remember everyone that they concealed, misprepresented and failed to disclose the fact that they would be using your credit and personally identifiable information in the offer and sale of securities to investors. If you doubt this note that they report your FICO score to not only the investors, but to anyone who has gains access to the banks trust investor reporting sites – and this access is freely given to anyone. I only gave permission to share my credit and personal information with any investors who would be purchasing my loan. The investors who purchased certificates issued by the trust did just that – purchased certificates and not my loan. That was not a part of what was disclosed to me before, during or after my loan closing. In my opinion this violates the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act and represents identity theft (and probably numerous other laws). I would think that this information would be material to any investor purchasing securities from any trust. The primary goal of this rule is to protect investors. But we should remind the SEC that they should consider homeowners and borrowers rights also.

    Dan Edstrom
    dmedstrom@hotmail.com

  223. Go to this SEC website and enter your comments

    http://www.sec.gov/news/press/2010/2010-54.htm

    The SEC is proposing new ABS rules and this includes what data about the borrower is to be included and published to the investors and at the SEC website for the world to see.

  224. What is Wrong With This Picture??

    At the same time that the Financial Times is reporting that JPMorgan Chase has made an average of $118 Million Dollars per day in trading profits in a loss free quarter (that is about $5 million dollars per hour), JPMorgan Chase is warning investors that more homeowners may walk away from their homes and mortgages!!

    Francesco Guerrera wrote the article for the Financial Times story of May 10, 2010 titled ‘Goldman and JPMorgan Roar Ahead’

    Shahien Nasirpour wrote the article for the May 11, 2010 Huffington Post on JPMorgan warning its investors.

  225. The World’s Fiat Currency System Risks Collapse

    On February 12th, NIA released an article entitled, “Greece Distracting from Real Debt Crisis in U.S.” in which we said, “We hope that Greece doesn’t get bailed out, because a bailout would cause foreign investors to become more irresponsible than ever and create even greater moral hazards. Unfortunately, not only is it likely that Greece will get bailed out, it’s possible our own Federal Reserve will get involved. The U.S. Federal Reserve has the ability to make loans to foreign central banks without disclosure to the U.S. public. European banks have already benefited $50 billion from the U.S.’s bailouts of AIG, so it’s not out of the realm of possibility that the Federal Reserve will intervene due to euro-zone countries being key U.S. trading partners.”

    NIA was right, late Sunday evening the Federal Reserve announced the re-establishment of U.S. dollar liquidity swap facilities with foreign central banks, as a part of the European Union (EU)’s nearly $1 trillion bailout plan. The Federal Open Market Committee has authorized swap lines through January 2011 with the Bank of Canada, the Bank of England, the European Central Bank (ECB), the Swiss National Bank, and the Bank of Japan.

    While the Federal Reserve may say these swap lines are necessary “to help improve liquidity conditions in U.S. dollar funding markets and to prevent the spread of strains to other markets and financial centers”, NIA recognizes that this is nothing more than another transfer of wealth from the American middle class to bankers around the world through inflation. This program was originally enacted in 2008 when the Federal Reserve loaned $582.8 billion to foreign central banks without any disclosure of which central banks got the money.

    NIA believes it is unconstitutional for the Federal Reserve to make loans to foreign central banks. Most likely, the Federal Reserve was pressured by Wall Street to re-establish the swap facilities because Bank of America, Citigroup, JP Morgan, Goldman Sachs and Morgan Stanley have about $2.5 trillion in exposure to Europe, and Wall Street doesn’t want to see their bets go bad.

    Not only will Americans now be exposed to the European debt crisis through the Federal Reserve’s swap lines, but the U.S. will be giving money away to Europe through the IMF. The IMF is contributing up to 220 billion Euros as a part of the bailout, which equals $283.1 billion at the latest exchange rate. The U.S. represents approximately 20% of IMF funding, which means the bailout is costing U.S. taxpayers $56.7 billion, not including the potential losses from loans made by the Federal Reserve and the inflation it will create.

    The moral hazards of the EU bailout are immeasurable. It sets a dangerous precedent that the ECB won’t allow any eurozone nations to fail, just like the Federal Reserve won’t allow any major financial institutions on Wall Street to fail. Eventually, if you don’t allow the free market to punish countries and financial institutions that recklessly speculated and made poor financial decisions, the financial crisis we are preventing will turn into a currency crisis that the western world will never be able to recover from. Although NIA still believes the U.S. dollar will win its race to the bottom with the Euro, we are now at risk of a total collapse of the world’s fiat currency system.

    Imagine if baseball teams weren’t allowed to fail. You probably remember playing t-ball as a kid and at the end of every game, both teams were declared the winner. Think about what would happen if Major League Baseball declared there will no longer be losers at professional baseball games, both teams will be declared the winners of every game. Would you still pay $300 for a ticket to see a Major League Baseball game? Of course not, the value of the tickets would collapse to nothing, similar to how fiat currencies will soon lose their purchasing power if we don’t allow countries and financial institutions to fail.

    NIA is almost done producing its nearly hour-long documentary ‘Meltup’. We spent quadruple the time and money producing Meltup than we did producing our previous critically acclaimed documentary ‘The Dollar Bubble’, which has already surpassed 710,000 views since November 23rd. We believe Meltup will be the best economic documentary ever produced in world history and a must see for yourself, your friends, and your family.

    Last week, NIA conducted an hour-long interview with Gerald Celente, founder of the Trends Research Institute. We can honestly say that our interview with Mr. Celente was the single most shocking, insightful and informative interview we have ever witnessed or heard. NIA will be using footage from our interview with Mr. Celente in Meltup. We highly recommend that you visit Mr. Celente’s Trends Research Institute web site at http://www.trendsresearch.com and subscribe to his Trends Journal. We just got done reading his latest Trends Journal and it is one of the most compelling pieces of journalism we have ever come across.

    If you would like your friends and family to be the first to see Meltup, please tell them to become a member of NIA for free by subscribing today at http://inflation.us

  226. How can I find a knowledgeable attorney to help me defend a final judgement? i am in process of filing BK to stop the sale on May 13. Lender is contrywide and i am certain there are securitization issues to say the least with the loan. property is located in Miami Florida.

    thank you

  227. No Right to enforce a presumption of interest
    By MSoliman

    1.Although OneWest Bank apparently purchased substantially all of IndyMac’s assets effective March 19, 2009 OneWest has never made a formal statement by affidavit to the successors and right of assignment in any case. The court admits all of the plaintiffs’ exhibits. No exhibits were tendered by the defendants, and the defendants’ list of exhibits stated that they “have no other Exhibits than those referenced by the Plaintiffs.”

    2.The General Motors and Chrysler bankruptcy cases highlights more limitations for companies experiencing financial distress and who use the bankruptcy process to sell their assets “free and clear” of liens pursuant to section 363 of the Bankruptcy Code and pay the net sale proceeds over to their secured creditors. Section 363 also protects secured creditors whose collateral is being sold by enabling secured creditors to “credit bid” their claims at a section 363 sale to protect against a sale at what the creditors perceive is a below-market price.

    3.Nonetheless, the District Court for the Eastern District of Pennsylvania, in In re Philadelphia Newspapers, LLC,2009 WL 3756362 (E.D. Pa. Nov. 10, 2009), recently ruled that debtors can preclude credit bids in asset sales conducted pursuant to a chapter 11 plan (not pursuant to section 363), where secured creditors receive the “indubitable equivalent” of their claims. If followed widely, the Philadelphia Newspapers decision may limit the ability of secured creditors to use secured debt as currency to purchase a debtor’s assets, or to block an asset sale,under a plan for less than the secured debt.

    4.The failure of First Federal was noteworthy not only for the collapse of another large thrift in the Golden State, but it was a key acquisition for OneWest. The federal government took control of Pasadena-based IndyMac Bank in 2008 in what regulators called the second-largest bank failure in U.S. history regulators shut its main branch citing a massive run on deposits. The bank’s 33 branches closed but the Federal Deposit Insurance Corp. reopen the bank on the following Monday as IndyMac Federal Bank, said the Office of Thrift Supervision Federal authorities estimated that the takeover of IndyMac, which had $32 billion in assets, would cost the FDIC $4 billion to $8 billion.

    5.Regulators said deposits of up to $100,000 were safe and insured by the FDIC. The agency’s insurance fund has assets of about $52 billion. The institution First Federal was formed by a group of private-equity investors to take over the operations of failed IndyMac Bank, one of the first large victims of the mortgage debacle. OneWest did not pay a premium to assume all of First Federal’s $4.5 billion of deposits. It also agreed to acquire roughly all of its assets and share losses with the FDIC on a $5.3 billion piece of First Federal’s portfolio

    6.Claims under judicial estoppel: The scope and purpose of the doctrine of judicial estoppel was fully explained in Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990),cert. denied, 501 U.S. 1260, 111 S.Ct. 2915, 115 L.Ed.2d 1078 (1991):The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process. [citation omitted] The policies underlying preclusion of inconsistent positions are”general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.” [citation omitted] Judicial estoppel is intended to protect againsta litigantplaying “fast and loose with the courts.” [citation omitted] Because it is intended to protect the integrity of the judicial process, it is an equitable doctrine invoked by a court at its discretion. Protecting the integrity of the judicial process is at the heart of this matter

    7.Right to enforce a presumption of interest. A court must determine to what extent it can judicially prescribe that an entity or person to have been cloaked with apparent authority to settle certain matters (by right of implied or express assignment). ,

    The appropriate response is that party(ies) if they do not have the authority found in the agreements and or contracts signed amongst a borrower and his or her lender or under the state or federal statute to authorize it on those terms.

  228. Dying truth,

    thank you very much for the support. this article will sure help me a lot. to all homeowners who received a substitution of trustee , please make sure to gogle the names who signed the substitution of trustee and the notary who notarized the documents chances are it was done in the law office who is going after you in the court. mine was done in the law firm of mccarthy & holtus a law firm debt collector, who still insist they are not a debt collector. this is what i discovered
    the lawyers who is filing a lawsuit to foreclose your property either in the BK court or in state & federal court are lawyers that were hired by a debt collectors. so don’t forget to include your causes of action the FDCPA violations. these law firms are also a debt collectors by any means . call their phone number and their message would said we are a debt collectors attempting to collect a debt any information bla bla bla bla. if someone being pursued by mcCarthy & holthus here in ca and other 8 western states, include them in your lawsuit because they are law firm whose main purpose is to collect a debts? you know these lawyers are not the one writing all those pleadings in the court i t was either the PROMiss solutions company,.LPS, quality loan services hiding as a Trustee for foreclosure purposes. be vigilant any documents these impostors submitted in the court are 100 % bogus. thanks

  229. erlinda,
    I came accross some case law that might be helpful for your situation
    Katchen v. Landy, 382 US 323 – Supreme Court (1966) at 329 “This power to allow or to disallow claims includes “full power to inquire into the validity of any alleged debt or obligation of the bankrupt upon which a demand or a claim against the estate is based. This is essential to the performance of the duties imposed upon it.” Lesser v. Gray, 236 U. S. 70, 74. The trustee is enjoined to examine all claims and to present his objections, Bankruptcy Act § 47a (8), 11 U. S. C. § 75 (a) (8) (1964 ed.)”
    full case opinion here> http://scholar.google.com/scholar_case?case=9683721947005602171

  230. Homeowner Handed “Free” House
    By GREG CERGOL
    Updated 9:45 PM EDT, Fri, May 7, 2010

    Print Share Buzz up!retweetFACEBOOK

    Corliss Gittens of Lakeview turned forty-eight Friday.

    Her birthday gift came courtesy of a Nassau County judge.

    “It’s the best present I ever received,” said the smiling Gittens.

    New York Supreme Court justice John Galasso handed the receptionist her home, free and clear of any mortgages or liens. The court decision was ten years in the making.

    Back in 2000, Gittens bought her childhood home from her parents. She used a $144,000 loan from a local lending company to close on the house.

    But when Gittens tried to make her mortgage payments, the lender wouldn’t cash her checks. At one point, she even sent some via certified mail. But the money was never accepted.

    Gittens grew so frustrated she contacted the lender’s customer service department.

    “The manager got on the phone and said, lady, you must be calling the wrong bank because you don’t have an account here,” said Gittens.

    Apparently, all records of her mortgage had vanished.

    “That mortgage is in a black hole,” said Gittens’ lawyer Fred Brewington of Hempstead.

    “It has gone into deep, deep black space. It’s gone.”

    What happened is unclear. Gittens’ original lender went out of business and its assets were bought and sold several times. JP Morgan Chase, said Gittens, is the company that now should be holding her mortgage.

    But when Brewington originated a court action to have Gittens declared the sole owner of her home, no bank representative showed up to contest the case.

    So, the house her late parents bought in 1961 is now hers, free and clear.

    “I think my mom and dad are looking down on me, making sure nothing happens to their house,” said Gittens.

    As for how she planned to celebrate her birthday, Gittens said she would enjoy a quiet dinner in her birthday “present” — enjoying the kind of ending that every homeowner dreams about

  231. VIDEO: SWAT Team Storms Keith Sadler’s Home in Predawn Raid

    http://www.michaelmoore.com/words/latest-news/video-swat-team-storms-keith-sadlers-home-predawn-raid

  232. ATTENTION ALL WITH INDYMAC LOANS & DEUTSCHE TRUST!!!!!!!

    We are looking for all that have a loan with Indymac and/or Deutsche Trust. In an effort to support and substantiate the massive fraud that is being perpetrated by this bank against all homeowners, we need you help. This information will be used and provided to the SEC, FDIC and IRS to aid in their investigations against Indymac and Deutsche. Any and all info will be appreciated, helpful and will only be provided to the SEC, FDIC and IRS. Please contact stopindymac@gmail.com for more info.

    Fighting the Good Fight!!

  233. erlinda,
    whether your property address was 114 Persia, 131 Persia or 925 Persia, it does not come up in qu@liy’$ $ystem ergo they had no standing and it’s a mystery(well not a mystery vis-a-vis the long standing reputation judges in california for being scandalous) why the judge granted relief from stay, especially talking about “skin in the game” when from what I can see neither the judge nor quality had any but was obviously counting on peeling some. All of these judges who are handing down these unjust rulings SHALL reap the consequences by any means necessary justice so requires. we need to start making a judges of injustice list catagorized by jurisdiction, district, court level etc.. especially in cali, iv’e read some opinions from different districts from the one i’m in that OHHH MY GOD pisses me off. Even though none of the parties in the case have nothing to do with mine it infuriates me like when Lawrence J. O’Neill “ADMONISHES plaintiff not to abuse the judicial process to attempt to delay or obstruct rightful foreclosure of her home and that plaintiff is subject to sanctions if she attempts to do so.” that really gets to me. that guy’s number 1 on my list so far

  234. Fair Debt Collection Practices Act
    COLLECTORS contends that motion to dismiss fails to state a claim under the FDCPA, because plaintiff did not allege that he disputed the debtor COLLECTORS. Plaintiff responds that the specific allegation disputing the underlying debt is not required, and that he has otherwise sufficiently plead a FDCPA cause of action under Fed. R. Civ. P. 8notice requirement.

    To state a claim under FDCPA, plaintiff must allege that “(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as Defined by the FDCPA and (3) the defendant has engaged in an actor omission prohibited by the FDCPA.” Kaplan v. Asset care, Inc.,88 F. Supp. 2d 1355, 1360-61 (S.D. Fla. 2000); see also Fuller v.Becker & Poliakoff, P.A., 192 F. Supp. 2d 1360, 1366 (M.D. Fla.2002). Section 1692a(3) defines the term “consumer” as any “natural person obligated or allegedly obligated to pay any debt.”15 U.S.C. § 1692a(3). Section 1692a (5) defines the term “debt” as follows:

    The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

    15 U.S.C. § 1692a (5). Section 1692a (6) defines the term debt collector and states, in pertinent part, as follows: The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another….

    15 U.S.C. § 1692a (6). The FDCPA also enumerates certain prohibited collection practices. See 15 U.S.C. § 1692f.

    Specifically, the FDCPA states, in pertinent part, as follows:

    A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section :( 1) the collection of any amount (including any interest, Fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized byte agreement creating the debt or permitted by law.

    15 U.S.C. § 1692f (1).The Court finds that plaintiff adequately plead a claim under The FDCPA. Plaintiff falls within the statutory definition of consumer, and there is no assertion that COLLECTORS was not a debt collector for purposes of the FDCPA. The Complaint alleges that COLLECTORS attempted to collect an amount greater than what was owed. (Doc. #4-1, p. 2, ¶ 4).

    Having alleged that COLLECTORS engaged in a prohibited collection practice, plaintiff sufficiently stated a FDCPA claim in his Complaint, and the Motion to Dismiss as to Count is due to be denied.

    msoliman
    expert.witness@live.com

  235. A forensic audit has been completed on my mortgage. I have the results but I am not sure if it’s anything worth while pursuing. I have defaulted on my mortgage -last payment since Dec 2008. I have been actively trying to modify my mortgage from a pay up front loan modification company (should have known better, they are no longer and they got my money), to working with my lender my self, to NACA. I am fortunately still in my house. Everyday I worry, that they will foreclose. The bank has advised they have postponed the date. The mortgage audit showed violations- Violations of Federal Statutes, Missing Mortgage Broker agreement Disclosures, Notice of Right to Receive copy of Appraisal missing and Booklet on closing costs not provided within 3 days of application. I am also missing from my closing documents Itemization of amount financed, good faith estimate & controlled Business Arrangement Disclosure. There is also only partial of all state required disclosures. I do not know what any of this means. The audit was done through NACA but I have not had any success with anyone explaining anything to me. I was told to contact an attorney- which financially may not be feasible. Is there anyone able to give me any insight. I am in the Phoenix, AZ area. I am trying so hard to keep my home. I have a first and 2nd mortgage. Thank you.

  236. Following story sent to me by Ed Harness, a superb Milwaukee, Wisconsin, bankruptcy and foreclosure attorney:

    Eight Years of Foreclosed Home Inventory

    Posted: 26 Apr 2010 12:42 PM PDT

    According to the Wall Street Journal an 8 year inventory of foreclosed homes exists, LPS Applied Analytics estimated that foreclosures would create so much market supply that it would take 103 months to liquidate it.

    As of March, banks had an inventory of about 1.1 million foreclosed homes, up 20% from a year earlier, according to estimates from LPS Applied Analytics. Another 4.8 million mortgage holders were at least 60 days behind on their payments or in the foreclosure process, meaning their homes were well on their way to the inventory pile. That “shadow inventory” was up 30% from a year earlier.

    Based on the rate at which banks have been selling those foreclosed homes over the past few months, that entire inventory, real and shadow, would take 103 months to unload. That’s nearly nine years.

    The HAMP (Home Affordable Modification Program) program started by the Obama Administration is trying to modify loans so that lenders will not foreclose:

    According to Goldman Sachs, HAMP started less than 80,000 trial modifications in March, less than half the number in the peak month of October 2009. At the same time, a growing number of modifications are being canceled as borrowers prove unable to pay. By Goldman’s count, about 68,000 were canceled in March.

    All this means that little can stop banks’ inventory of distressed homes from growing. Too many people owe too much more on their homes than they can afford. For the housing market, that could mean a long-lasting hangover.

    http://www.StopWiForeclosures.com

  237. From Brian and Abby,
    This is done for late assignments into a closed trust. It violates the SEC and NY Trust laws as well as the IRS.
    Doing so would create a large tax burden on the actual creditors. This is criminal tax evasion.
    If you have a late assignment the let the IRS shine the light on these creatures of the night.

    Victor S.O. Song
    Chief, Criminal Investigation IRS
    1111 Constitution Ave NW Room 2501
    Washington, DC 20224
    April 27, 2010
    RE: Indymac Residential Asset Securitization Trust 2007-A5, pass through series 2007 E, with the Pooling and Servicing Agreement Dated 3-1-2007. Deutsche Bank National Trust Company as Trustee
    Possible IRS — REMIC 2 tax violations
    .Dear Mr. Song:

    SEC file number 333-132042 Accession Number 905148-6-1500

    I am making this formal complaint for an investigation against Deutsche Bank National Trust Company as Trustee and each of it’s entities involved in the Indymac Residential Asset Securitization Trust 2007-A5, pass through Series 2007 E, with the Pooling and Servicing Agreement Dated 3-1-2007. I am submitting a certified copy of my the Assignment, a public record filed at the Riverside County Recorder’s office in Indio, California, which demonstrates the addition to a closed trust of a defaulted loan by assignment on 8-20-2009.
    The Pooling and Servicing Agreement filed with the SEC shows that this trust was closed 3-29-07. Under IRS and REMIC Law and the terms of the PSA, all assignments were to have been completed within 90 days.

    I would appreciate any information in regards to this issue.

    Thank you.

    Brian Davies
    43277 Sentiero Drive
    Indio, California 92203
    760-904-4928

  238. RIK-I am not a lawyer, but pro se, so from my experiences, you can file Motion to Compel production.

    Also, as an alternative approach, do a Freedom of Information request to the SEC (securities and exchange commission) and you provide loan number(s), address of your property etc…as much info as you can give (names of banks involved etc.) and tell them in the request you need the exact name of the securities trust involving you loan, property etc…..and you’d like copies of an of the related SEC filings.

    See what comes back to you.

    I think at the SEC website there is a FOIA online form. But I like to also send a letter.

  239. Erlinda,
    Everybody can see from the ruling that this judge is more interested in protecting the so-called “creditor” interest than getting to the truth. He certainly made a lot of assumption in favor of the pretender lender.
    Keep up the fight.

    marcus@foreclosureProSe.com

  240. Rik,
    You need to keep hammering them. File a motion to compel and set up a hearing. Discovery is your best change to get to the truth; they will put every road block they can. Be persistent.

    marcus@foreclosureProSe.com

  241. Hi All,

    My effort continues with denied discovery, but it continues. I have some questions that I hope can be answered here without to much trouble.

    To the best of my knowledge, my VA Loan, with Wells Fargo appears not to have been transferred to a trust, nor can I find any references to it in the SEC filings.

    The note, filed by FDLG is just a few pages with two stamps on its front and my signature. No notations or transfers on the back or anything else.

    Is it common practice for Notes to be put into a trust? What would stop this from happening?

    FDLG is denying almost every question I put forward in Discovery, and their answers to other sections are vague or evasive. So finding more info is becoming a real problem to find the trust or the like.

    Thank you in advance for your help.

    Rik

  242. PRO TANTO?

    Timeliness or the statutory term requirements are necessary for making enforceable transfers of title for real property under an alienation of title claim.

    Alienation and or adverse possession shall have been conducted in an “open” and “notorious” manner. Adverse possession maintains its own judicial requirements to be satisfied under a hostile claim brought against the ignorant or unaware property owner for who the claim is against.

    And the mere willingness for a government to bail out its ailing banks does not lend the right to non government institutions to enforce a recovery under eminent domain. http://foreclosureinfosearch.com.

  243. It is absurd to believe the lenders recourse is sufficient to honor each defaulted loan repurchase shortfall which is in fact a recourse provision necessary for a lender to perform a foreclosure, if even possible. Mortgage securitization is a chaotic financial process weighed down by underlying risk illustrated best in a world economic collapse. The misnomer is for a collateralized investment offering security whereby the assets are derivatives traded multiples of the collateral.http://foreclosureinfosearch.com

  244. TOMORROW: Marcy Kaptur to deliver Goldman petition endorsed by 140,000 people and a letter signed by 64 House members to the Justice Department. Both documents call for a criminal investigation into Goldman Sachs, an initiative sponsored by the Progressive Change Campaign Committee and MoveOn.org.

  245. thank you abby for posting my case, when McCathty & Holthus a debt collectors law firm filed for relief from stay we objected it for the same reasons,that everyone here in this blog are fighting for “Legal Standing” to file that motion to lift from stay in BK in other words giving them the right to move forward to foreclosed our property. we disputed it based on “STANDING”. the judge are not interested in discussing the “STANDING” , HE IS MORE INTERESTED IN ADEQUATE PROTECTION ORDER (APO) than rendering his decision based on standing. the court order said we have to give the amount of money and have it send to creditors attorneys with interest until the party in interest has been determined which in his OPINION that the creditor will connect the DOTS in identifying the party in interest who has legal standing to foreclose. knowing of all this judge’s decision, we offered no pay but we want the APO be put to a neutral third party or open an escrow so the money will be safely protected. we don’t trust M&H to receive the APO payment. but the judge never mentioned about this proposal at all on his decision instead he portray us gambling the money to use for our other purposed. i hope no homeowners will go thru him when they filed their BK esp. when you are a Pro-Se. this judge will allow me to be the last t be heard in the hearing so he could say stupids things against me like , whatever the lawyers said he would believe them, even you raise the questions of fraudulent document submitted , JUDGE MONTALI WILL NOT HEAR IT. HE IS MORE INTERESTED IN APO AND IF NOT GRANTED THE MRS. I TOLD HIM HE IS PREJUDICE, BIASED AGAINST ME AND I ASKED TO RECUSE FROM MY CASE AND HE DENIED IT. what can you expect for a JUDGE who is MARRIED TO AN ACTIVE REAL ESTATE BROKER? and give away all those houses to debt collectors? isn’t this a conflict of interest? how could YOU expect a judge giving a decision OUTSIDE OF HIS JURISDICTION IN ONE OF MY PROPERTY? WHICH IS NOW PENDING APPEAL IN 9TH DISTRICT OF APPEAL OF SF. THIS JUDGE ALLOW LITTON TO STEAL OUR PROPERTY EVEN AT TIME THAT PROPERTY IS OMITTED BY MY PREVIOUS ATTORNEY IN MY SCHEDULE A? When we did appeal at BAP is was dismissed by MOOTNESS because the property was sold to LITTON by Quality ans now IM appealing it in the court of appeal. how could you trust this judge when He is also the chief Judge of BAP ? i promise to myself if it goes to the Supreme Court , i will. can i effectively reorganized under chapter 11 with this kind of judge absolutely NOT? i filed my lawsuit against aurora & litton in the federal court so i could exposed this IMPOSTOR to their “FRAUD” but judge monatli shut me off . his court is a “KANGARO COURT” and he is aiding and abetting this fraud through these foreclosure mills attorneys for refusing to give us our due process right. if you read between his writing of his decision you could tell how this judge are so prejudice that you could tell and smell his biased toward a pro-se litigant. i am not giving up for this fight. and maybe , you will ask why i did not file complaint against him? maybe , i will? who knows/? I am right in objecting the APO to M&H? YES, OF COURSE BECAUSE I HAVE PROVEN THAT M& H FILED A BOGOS AND FRAUDULENT DOCUMENTS IN ORDER TO FORECLOSE AND COLLECT THE DEBTS. THAT IS THEIR BIGGEST MISTAKES FILING DOCUMENTS CONTRARY TO EACH OTHER.

  246. FYI — California Bankruptcy Case Ruling — worth a careful read.

    IN RE ANIEL

    In re: FERMIN SOLIS ANIEL and ERLINDA ARIBAS ANIEL aka Erlinda Jose Abibas, Chapter 11, Debtors.

    Bankruptcy Case No. 09-30452DM.

    United States Bankruptcy Court, N.D. California.

    April 21, 2010.
    MEMORANDUM DECISION REGARDING ORDER DENYING EMERGENCY MOTION TO RECONSIDER (PERSIA AVENUE PROPERTY)

    DENNIS MONTALI, Bankruptcy Judge

    In this chapter 11 case the pro se debtors have steadfastly and repeatedly resisted motions for relief from stay, while at the same time steadfastly and repeatedly refusing to make payments pending resolution of their disputes about the standing of those secured creditors to seek such relief.

    The court is sympathetic with any debtor who finds it difficult, if not sometimes seemingly impossible, to wade through the maze of transferred notes, assigned deeds of trust, ethereal beneficiaries, and information and belief allegations about what some predecessor loan servicing agent did with the original note and deed of trust. But it is equally unsympathetic with debtors shedding crocodile tears about making adequate protection payments while at the same time claiming all the benefits the bankruptcy law provides them. If you want to gamble in the casino and hope to hit the jackpot, you can’t expect to win by using house money. You’ve got to put a “little skin in the game”[ 1 ]. Because these debtors have refused to do so, relief from stay could hardly be more appropriate.

    On February 11, 2010, Fermin and Erlinda Aniel (“Debtors”) filed an “Opposition to Motion for Relief from Stay Supplements; Emergency Motion for Reconsideration on the Order for Relief from Automatic Stay; Objection to Claim” (“Emergency Motion for Reconsideration”) regarding the motion for relief from stay (“MRS”) filed by Deutsche Bank National Trust Company, as Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-5, its assignees and/or successors and the servicing agent American Home Mortgage Servicing, Inc. (“Creditor”) as to certain rental property on Persia Avenue in San Francisco (the “Property”). The court entered an order denying the Emergency Motion for Reconsideration on February 17, 2010. This memorandum decision explains the reasoning that led to the February 17 order.
    FACTS
    I. Background Facts

    On January 25, 2009, Debtors filed their chapter 11[ 2 ] petition. According to their Amended Schedule A filed on August 31, 2009, Debtors hold an ownership interest in seven single family residences in San Francisco County and San Mateo County. One of these properties is Debtors’ home; the remaining six are rental properties. Debtors have been collecting the rents on the rental properties since the petition date but have not made any postpetition payments on the debts secured by various deeds of trust against the properties.[ 3 ] According to various proofs of claim and motions for relief from stay filed in this case, Debtors owe significant prepetition arrearages on the various notes secured by the properties.[ 4 ]

    Ms. Aniel admitted at a chapter 11 status conference on January 14, 2010, that Debtors have been using the rental proceeds without obtaining authorization to use cash collateral; Debtors have used the proceeds to, among other things, pay the costs of litigation against many of the alleged deed of trust holders. Debtors have opposed the motions for relief from stay and many of the proofs of claims filed by these lenders for, among other theories, lack of standing. Notwithstanding these objections and oppositions, Ms. Aniel has admitted on the record that Debtors do not dispute executing the various notes and deeds of trust. She has also stated that Debtors do not intend to make any adequate protection payments on these various notes.
    II. History of the Emergency Motion for Reconsideration

    On November 20, 2009, Creditor filed the MRS. Debtors opposed the MRS on the grounds of standing and purported violations of the Fair Debt Collections Act (“FDCA”), state consumer protection laws, and the California Penal Code by Creditor and Creditor’s counsel in filing a proof of claim and the MRS. The court held a hearing on the MRS on December 10, 2009, and took the matter under submission. On December 16, 2009, the court entered an order overruling the FDCA and California Penal Code objections[ 5 ] but permitting the automatic stay to remain in effect as long as Debtors tendered adequate protection payments pending resolution of the standing issue. The adequate protection payments were to be held by Creditor’s counsel in an interest-bearing trust account; if Debtors ultimately prevailed on their standing defenses, the adequate protection payments plus accrued interest would be returned to them.

    On December 23, 2009, Debtors filed a motion to reconsider or amend the December 16 order on the MRS. On December 31, 2009, this court entered an order granting, in part, this motion for reconsideration (the “December 31 Order”). The December 31 Order provided:

    Debtors have a right to assert their substantive standing defense to the MRS, but they must provide adequate protection of Creditor’s asserted security interest pending resolution of the issue, particularly as no equity exists in this rental property and no payments have been made for ten months postpetition. 11 U.S.C. §§ 361 and 362(d). . . . To continue the automatic stay, however, the court requires Debtors to make the regular monthly payments for December, 2009, and January, 2010, in the total amount of $4,865.04, no later than January 11, 2010, and $2,432.52 per month thereafter, on the first business day of each month. All payments must be made to Creditor’s counsel, who shall hold these payments in an interest-bearing trust account pending further order of the court. If Debtors ultimately prevail, these payments plus accrued interest may be returned to them. If Debtors default in making the January 11, 2010 payment and the monthly payments thereafter, Creditor shall provide written notice to Debtors of the nature of the default. If Debtors fail to cure the default within ten days of the date of the notice, Creditor may file an ex parte declaration of default and upload an order granting it full relief from the automatic stay. Upon receipt of any declaration of default from Creditor, the court may grant full relief from the stay without further hearing.

    On February 2, 2010, Creditor filed a declaration of default (at Docket No. 139) stating that Debtors did not make the January 11 payment, even after Creditor’s counsel sent Debtors a notice of default on January 13, 2010.[ 6 ] Therefore, on February 4, the court entered an order granting Creditor’s MRS.

    On February 11, 2010, Debtors filed their Emergency Motion for Reconsideration because, inter alia, Creditor has not established a chain of title showing that it is an assignee of the underlying deed of trust. The December 31 Order directed Creditor to file, no later than February 5, a supplement to its MRS to demonstrate the chain of title. Creditor filed a supplement on February 2, 2010, but that supplement does not show how and when Creditor acquired its rights in the deed of trust.[ 7 ]

    Nonetheless, because Debtors failed to make any effort to tender the adequate protection payment on January 11, the court entered the February 17 order denying the Emergency Motion for Reconsideration. The February 17 order specifically states that it does not preclude Debtors from challenging in state court the Creditor’s right to pursue remedies under the deed of trust and note and that it does not preclude Debtors from filing a separate objection to Creditor’s proof of claim in this chapter 11 case.[ 8 ]
    DISCUSSION

    In the past year or two, several bankruptcy courts have published decisions regarding the standing of creditors and servicing agents acting on the creditors’ behalf to prosecute motions for relief from stay. See, e.g., In re Wilhelm, 407 B.R. 392 (Bankr. D. Id. 2009); In re Jacobson, 402 B.R. 359 (Bankr. W.D. Wash. 2009); In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008). In general, these cases apply Federal Rule of Civil Procedure 17(a)(1) (incorporated by Rule 7017, which is in turn made applicable to motions for relief from stay by Rules 4001(a)(1) and 9014), which provides that an action “must be prosecuted in the name of the real property in interest.” The real property in interest in a relief from stay motion is a party entitled to enforce the right being asserted under applicable law. Jacobson, 402 B.R. at 366.

    Addressing the principles of “real party in interest” and standing in the context of motions for relief from the automatic stay, the Wilhelm court held that movants must show that they have “an interest in the relevant note” and they have been “injured by debtor’s conduct (presumably through a default on the note).” Wilhelm, 407 B.R. at 398. “Beyond that, [m]ovants must also show they have the right, under applicable substantive law, to enforce the notes.” Id. The court identified two threshold questions for establishing standing: (1) Has the movant established an interest in the relevant promissory note? (2) Is the movant entitled to enforce the notes? Id.

    To resolve these threshold questions of standing, the courts have looked to the state law governing negotiable instruments. Hwang, 396 B.R. at 762. In California, section 3301 of the Commercial Code governs who is entitled to enforce a note:

    “Person entitled to enforce” an instrument means (a) the holder of the instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3309 or subdivision (d) of Section 3418. A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

    Cal. Comm. Code § 3301. A “holder” of a note is “the person in possession of a negotiable instrument that is payable either to bearer or, to an identified person that is the person in possession.” Cal. Comm. Code § 1201(B)(21)(a). When endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone. Cal. Comm. Code § 3205.[ 9 ]

    In general, this court agrees with the principle that creditors moving for relief from stay should establish a prima facie case that they have standing to enforce the underlying note or obligation.[ 10 ]

    In this circuit, relief from stay hearings are “limited to issues of the lack of adequate protection, the debtor’s equity in the property, and the necessity of the property to an effective reorganization. Hearings on relief from the automatic stay are thus handled in a summary fashion.” Johnson v. Righetti (In re Johnson), 756 F.2d 738, 740 (9th Cir. 1985) (overruled on other grounds by Travelers Cas. & Sur. Co. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007)). “The validity of the claim or contract underlying the claim is not litigated during the hearing.” Johnson, 756 F.2d at 740 (emphasis added). As noted by the Ninth Circuit BAP in First Fed. Bank of Cal. v. Robbins (In re Robbins), 310 B.R. 626, 631 (9th Cir. BAP 2004) (emphasis added):

    Stay relief hearings do not involve a full adjudication on the merits of claims, defenses, or counterclaims, but simply a determination as to whether a creditor has a colorable claim.

    Here, Creditor has made a colorable claim that it has standing by showing that it holds the note, endorsed in blank. Debtors do not dispute that they executed the note and deed of trust which are the subject of the MRS. If Debtors wish to maintain the status quo pending resolution of matters that require more plenary proceedings than relief from stay motions (e.g., adversary proceedings for declaratory relief to determine the proper holder of a note; objections to the claim of the creditor; confirmation of a Chapter 11 reorganization plan that restructures the claim of the creditor, etc.), the conventional way to do so is to make adequate protection payments in the meantime.[ 11 ]

    Because of Debtors’ adamant refusal to make such payments the court is less tolerant than the Wilhelm, Jacobson, and Hwang courts in one material respect: whether debtors should provide adequate protection payments to the Creditor until the standing issues are fully adjudicated. They have not made any payment on this note (or the notes secured by the six other properties in which Debtors assert an ownership interest) in over a year while they have been in bankruptcy. They failed to make at least five prepetition payments on the note secured by the Property. They have no equity in the Property. They have used cash collateral without permission.

    Under such circumstances, justice dictates that Debtors make adequate protection payments pending resolution of the standing issues. The court will not continue the stay with all of the risk being borne by the creditor. In circumstances where there is no doubt that the Debtors signed the note that is the subject of the motion, (and, frankly, not much doubt that ultimately Creditor will be able to “connect the dots” by showing the chain of title of the note and deed of trust), denial of relief from stay when adequate protection payments could be made would be patently unfair to Creditor and impose on it all of the risk of further deterioration of its security without protection. Since Debtors have no inclination to make payments, it is abundantly clear that once the Creditor (and other similarly situated secured creditors on other properties of Debtors) proves its standing, Debtors will allow the Property to be foreclosed. There is simply no point in delaying the inevitable.

    Debtors were not unprotected or left without remedy if they had made the adequate protection payments as ordered by the court. As the December 31 order provides, the adequate protection payments consist of the monthly payments due under the note undisputedly executed by them, and Creditor’s counsel was to hold such payments in trust pending resolution of the standing challenge. If Debtors had ultimately prevailed, the payments (plus interest) would have been returned to Debtors. Moreover, the order granting relief from the automatic stay does not preclude Debtors from challenging in state court the legitimacy of Creditor’s right to foreclose.

    Debtors chose not to comply with this court’s December 31 order. They chose not to make the adequate protection payments. They must accept the consequences of their decision. Under the circumstances described in this memorandum decision, the court questions whether the Debtors’ challenges to standing are made in good faith. The court therefore did not and will not vacate the order granting relief from stay.

  247. The 2 reasons why nobody will EVER be able to get a case that’s either filed in District Court or ends up there by Removal to get to the Trial phase whether Jury or non-Jury are these 2 Laws: 5 U.S.C. § 8440a and 5 U.S.C. § 8440b. These are the Federal laws which are similar to the pension plan REAL ESTATE investment policies that CalPERS has, these “investment” policies create HEAVY conflict-of-interest provisions because their investment advisory council has made a fortune off of controlling the funds and now is telling(and using as an incentive) that the funds are gone and/or losing value and probably saying: “its those damn lousy borrowers who all got home loans and don’t wanna pay their bills, think the house is free” and “don’t let people rescind their loans, let servicers foreclose on the homes, we can turn around and sell them to make more profit for the fund” oh and don’t forget “oh yeah, make sure that you don’t allow any of these cases to get to trial, because in the event of a trial it will come out that you are a beneficial receipiant financially.” WHAT!?! oh did i forget to mention in the chapter that those 2 sections came from it completely protects the advisement council from liability, it’s like their holding this over judges heads because they know it puts them in a tight spot at the same time it disrpts their “imartiality” thus causing prejudice to all of our rights for a future benefit not guaranteed in and in violation of US Const art III. At this point no judges can hear any Real Estate or Mortgage related case because they all have a financial stake in it, only a Jury can decide and will have to decide all the cases that were heard by judges without juries.

  248. NEXT BUBBLE: $600 TRILLION?

    Cities, states, universities could sink from monster derivatives meltdown

    —————————————————————————
    Posted: April 19, 2010
    9:40 pm Eastern

    By Jerome R. Corsi
    —————————————————————————
    WorldNetDaily

    As interest rates begin to rise worldwide, losses in derivatives may end up bankrupting a wide range of institutions, including municipalities, state governments, major insurance companies, top investment houses, commercial banks and universities.

    Defaults now beginning to occur in a number of European cities prefigure what may end up being the largest financial bubble ever to burst – a bubble that today amounts to more than $600 trillion.

    The Bank of International Settlements in Basel, Switzerland, now estimates derivatives – the complex bets financial institutions and sophisticated institutional investors make with one another on everything from commodities options to credit swaps – topped $604 trillion worldwide at the end of June 2009.

    To comprehend the relative magnitude of derivative contracts globally, the CIA Factbook estimates the 2009 Gross Domestic Product, or GDP, of the world was just under $60 trillion.

    Derivative contracts, therefore, have now reach a level 10 times world GDP, meaning even a 10 percent default in derivatives would equal world GDP.

    The small 800-year-old town of Saint-Etienne in France has just defaulted on a $1.6 million contract owed to Deutsche Bank. The city entered into a complex currency swap arrangement to reduce the cost of borrowing some $30 million.

    To cancel all 10 derivative contracts Saint-Etienne currently holds would cost the town approximately $135 million, more than six times the amount initially borrowed, largely because no bank or institutional investor would want to purchase contracts that are now on the losing side of the bet.

    Saint-Etienne is only one of thousands of EU municipalities that bought into derivative contracts as a way to cut the costs of municipal borrowing.

    A key problem with derivatives is that in the attempt to reduce costs or prevent losses, institutional investors typically accepted complex risks that carried little-understood liabilities widely disproportionate to the any potential savings the derivatives contract may have initially obtained.

    The hedge fund and derivatives markets are so highly complex and technical that even many top economists and investment banking professionals don’t fully understand them.

    Moreover, both the hedge fund and derivatives markets are almost totally unregulated, either by the U.S. government or by any other government worldwide.

    But losses on derivatives are not limited to government entities.

    HARVARD’S BILLIONS

    Obama administration economic guru Larry Summers may end up being best remembered for having destroyed almost single-handedly the Harvard University endowment fund as a result of misguided instructions he gave the fund’s management during his tenure as Harvard University president from 2002 to 2006.

    Summers, currently director of the White House National Economic Council, called for an aggressive investment strategy in which Harvard’ endowment fund engaged in risky strategies, including derivative strategies that have burdened the nation’ largest university endowment with billions of dollars in toxic assets.

    As a result, the Harvard endowment, which peaked at $36.9 billion in June 2008, has since lost some 30 percent of its value, dropping to $26 billion, according to Bloomberg News.

    In October 2009, Harvard University paid $497.6 million to investment banks to get out from $1.1 billion in interest rate swaps that were intended to hedge variable-rate debt for capital projects, Bloomberg reported.

    In what amounted to Harvard’s biggest endowment loss in 40 years, the university also agreed to pay $425 million over the next 30 to 40 years to offset an additional $764 million in credit-swap deals gone bad.

    Citing failed interest rate swaps that forced Harvard to pay banks $1 billion just to terminate the junk contracts, Bloomberg reported the Harvard endowment’s investments have become so toxic that even Summers won’t explain what happened during his watch.

    The Boston Globe squarely put the blame on Summers’ doorstep, noting he came into office with a bold vision to expand the size of its science facilities by more than a third.

    Average yearly expenditures for facilities jumped from under $150 million in 1995-2000 at Harvard, to $495 million from 2001-2005, to $644 million in 2009.

    “Summers told the faculty not to think small,” the Globe wrote. “Its ambitions were limited only by its imagination, he said. “Harvard could always come up with more money from its ‘deeply loyal fans.'”

    Unfortunately, deeply loyal fans and alumni with deep pockets were not enough to bail the university out from Sumner’s ill advised investment advice.

    Bloomberg reported that cash-strapped Harvard recently asked Massachusetts for fast-track approval to borrow $2.5 billion.

    The damage done to Harvard is not limited to plans to expand the science facility into blue-collar Allston. Now, the university is faced with slashing faculty and staff.

    Last year, more than 1,600 of Harvard’s staff were offered early retirement, and more than 500 accepted.

    “Loyal alumni have contributed generously to staunch the bleeding,” the Globe wrote, “but huge deficits remain in spite of all the reductions. Harvard will be a smaller place when the dust settles, with less educational and scholarly reach. It will employ fewer people and will contribute less to local and national prosperity.”

    WHAT ARE DERIVATIVES?

    While the hedge fund market is small in comparison to derivatives, hedge funds in the U.S. are still a $1.5 trillion industry.

    Hedge funds and derivatives share a common characteristic in that both were set up initially by professional investment advisers to assist them in managing the risk contained in institutional investment portfolios, including mutual fund assets or pension funds that typically involved hundreds of millions of dollars.

    One of the original ideas behind derivatives was the realization that professional money managers, including those in banks, investment companies and hedge funds, needed to make bets to offset the possibility of taking losses.

    A popular form of derivative contracts was developed to permit one money manager to “swap” a stream of variable interest payments with another money manager for a stream of fixed interest payments.

    The idea was to use derivative bets on interest rates to “hedge” or balance off the risks taken on interest-rate investments owned in the underlying portfolio.

    If an institutional investment manager held $100 million in fixed-rate bonds, for example, to hedge the risk, should interest rates rise or fall in a manner different than projections, a purchase of a $100 million variable interest rate derivative could be constructed to cover the risk.

    Whichever way interest rates went, one side to the swap might win and the other might lose.

    The money manager losing the bet could expect to get paid on the derivative to compensate for some or all of the losses.

    In the strong stock and mortgage markets experienced beginning in the historically low 1-percent interest rate environments of 2003 through 2004, the number of hedge funds soared, just as the volume of derivative contracts soared from a mere $300 trillion in 2005 to the more than $600 trillion today.

    Bloomberg reported the number of hedge funds tripled in the last decade to a record of 10,233 at the end of June 2008, according to the Chicago-based Hedge Fund Research Inc.

    More than one-third of those funds could be “wiped out” in the economic downturn that began in December 2008, Bloomberg said.

    The Bank of International Settlements, or BIS, in Basel, Switzerland, makes no estimate of how much of the $604 trillion in outstanding derivative contracts are today vulnerable to collapse.

    Losses in derivatives played a major role in the bankruptcies of both AIG and Bear Stearns.
    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

    YIKES!!!

    And some segments of the population do not want financial reform?

    ALLAN
    BeMoved@AOL.com

  249. Tuesday, April 20, 2010

    WND MONEY

    WorldNetDaily Exclusive

    NEXT BUBBLE: $600 TRILLION?

    Cities, states, universities could sink from monster derivatives meltdown
    —————————————————————————
    Posted: April 19, 2010
    9:40 pm Eastern

    By Jerome R. Corsi
    —————————————————————————
    WorldNetDaily

    As interest rates begin to rise worldwide, losses in derivatives may end up bankrupting a wide range of institutions, including municipalities, state governments, major insurance companies, top investment houses, commercial banks and universities.

    Defaults now beginning to occur in a number of European cities prefigure what may end up being the largest financial bubble ever to burst – a bubble that today amounts to more than $600 trillion.

    The Bank of International Settlements in Basel, Switzerland, now estimates derivatives – the complex bets financial institutions and sophisticated institutional investors make with one another on everything from commodities options to credit swaps – topped $604 trillion worldwide at the end of June 2009.

    To comprehend the relative magnitude of derivative contracts globally, the CIA Factbook estimates the 2009 Gross Domestic Product, or GDP, of the world was just under $60 trillion.

    Derivative contracts, therefore, have now reach a level 10 times world GDP, meaning even a 10 percent default in derivatives would equal world GDP.

    The small 800-year-old town of Saint-Etienne in France has just defaulted on a $1.6 million contract owed to Deutsche Bank. The city entered into a complex currency swap arrangement to reduce the cost of borrowing some $30 million.

    To cancel all 10 derivative contracts Saint-Etienne currently holds would cost the town approximately $135 million, more than six times the amount initially borrowed, largely because no bank or institutional investor would want to purchase contracts that are now on the losing side of the bet.

    Saint-Etienne is only one of thousands of EU municipalities that bought into derivative contracts as a way to cut the costs of municipal borrowing.

    A key problem with derivatives is that in the attempt to reduce costs or prevent losses, institutional investors typically accepted complex risks that carried little-understood liabilities widely disproportionate to the any potential savings the derivatives contract may have initially obtained.

    The hedge fund and derivatives markets are so highly complex and technical that even many top economists and investment banking professionals don’t fully understand them.

    Moreover, both the hedge fund and derivatives markets are almost totally unregulated, either by the U.S. government or by any other government worldwide.

    But losses on derivatives are not limited to government entities.

    HARVARD’S BILLIONS

    Obama administration economic guru Larry Summers may end up being best remembered for having destroyed almost single-handedly the Harvard University endowment fund as a result of misguided instructions he gave the fund’s management during his tenure as Harvard University president from 2002 to 2006.

    Summers, currently director of the White House National Economic Council, called for an aggressive investment strategy in which Harvard’ endowment fund engaged in risky strategies, including derivative strategies that have burdened the nation’ largest university endowment with billions of dollars in toxic assets.

    As a result, the Harvard endowment, which peaked at $36.9 billion in June 2008, has since lost some 30 percent of its value, dropping to $26 billion, according to Bloomberg News.

    In October 2009, Harvard University paid $497.6 million to investment banks to get out from $1.1 billion in interest rate swaps that were intended to hedge variable-rate debt for capital projects, Bloomberg reported.

    In what amounted to Harvard’s biggest endowment loss in 40 years, the university also agreed to pay $425 million over the next 30 to 40 years to offset an additional $764 million in credit-swap deals gone bad.

    Citing failed interest rate swaps that forced Harvard to pay banks $1 billion just to terminate the junk contracts, Bloomberg reported the Harvard endowment’s investments have become so toxic that even Summers won’t explain what happened during his watch.

    The Boston Globe squarely put the blame on Summers’ doorstep, noting he came into office with a bold vision to expand the size of its science facilities by more than a third.

    Average yearly expenditures for facilities jumped from under $150 million in 1995-2000 at Harvard, to $495 million from 2001-2005, to $644 million in 2009.

    “Summers told the faculty not to think small,” the Globe wrote. “Its ambitions were limited only by its imagination, he said. “Harvard could always come up with more money from its ‘deeply loyal fans.'”

    Unfortunately, deeply loyal fans and alumni with deep pockets were not enough to bail the university out from Sumner’s ill advised investment advice.

    Bloomberg reported that cash-strapped Harvard recently asked Massachusetts for fast-track approval to borrow $2.5 billion.

    The damage done to Harvard is not limited to plans to expand the science facility into blue-collar Allston. Now, the university is faced with slashing faculty and staff.

    Last year, more than 1,600 of Harvard’s staff were offered early retirement, and more than 500 accepted.

    “Loyal alumni have contributed generously to staunch the bleeding,” the Globe wrote, “but huge deficits remain in spite of all the reductions. Harvard will be a smaller place when the dust settles, with less educational and scholarly reach. It will employ fewer people and will contribute less to local and national prosperity.”

    WHAT ARE DERIVATIVES?

    While the hedge fund market is small in comparison to derivatives, hedge funds in the U.S. are still a $1.5 trillion industry.

    Hedge funds and derivatives share a common characteristic in that both were set up initially by professional investment advisers to assist them in managing the risk contained in institutional investment portfolios, including mutual fund assets or pension funds that typically involved hundreds of millions of dollars.

    One of the original ideas behind derivatives was the realization that professional money managers, including those in banks, investment companies and hedge funds, needed to make bets to offset the possibility of taking losses.

    A popular form of derivative contracts was developed to permit one money manager to “swap” a stream of variable interest payments with another money manager for a stream of fixed interest payments.

    The idea was to use derivative bets on interest rates to “hedge” or balance off the risks taken on interest-rate investments owned in the underlying portfolio.

    If an institutional investment manager held $100 million in fixed-rate bonds, for example, to hedge the risk, should interest rates rise or fall in a manner different than projections, a purchase of a $100 million variable interest rate derivative could be constructed to cover the risk.

    Whichever way interest rates went, one side to the swap might win and the other might lose.

    The money manager losing the bet could expect to get paid on the derivative to compensate for some or all of the losses.

    In the strong stock and mortgage markets experienced beginning in the historically low 1-percent interest rate environments of 2003 through 2004, the number of hedge funds soared, just as the volume of derivative contracts soared from a mere $300 trillion in 2005 to the more than $600 trillion today.

    Bloomberg reported the number of hedge funds tripled in the last decade to a record of 10,233 at the end of June 2008, according to the Chicago-based Hedge Fund Research Inc.

    More than one-third of those funds could be “wiped out” in the economic downturn that began in December 2008, Bloomberg said.

    The Bank of International Settlements, or BIS, in Basel, Switzerland, makes no estimate of how much of the $604 trillion in outstanding derivative contracts are today vulnerable to collapse.

    Losses in derivatives played a major role in the bankruptcies of both AIG and Bear Stearns.

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

  250. hi marcus,

    i’m in florida and have a hearing on in mid-May re: motions directed to complaint & notice o& notice of intent to dismiss under F.S. 57.011.

    i have an attorney (for now, may not be able to afford much longer at $300/hr) and a court reporter will be there. i’m not sure my attorney is especially sympathetic to my cause since he thinks “the investors” are the ones who “really got screwed”.

    am i unreasonable for thinking charging me $300/hour to drive to and from the courthouse is highway robbery? just saying…..

  251. We’re getting some TERRIFIC on spot documents that reveal a widespread pattern of FRAUD UPON THE COURTS to cover up PLAINTIFF LACK OF STANDING, thanks to ICE LAW, WEIDNER LAW, MARCUS, LISA, MIKE and others.

    HOW can we USE these fabulous new decisions/rulings, trial and deposition transcripts to bolster our written and oral arguments? Can we quote from them? If so, how do we lay the proper foundation? How do we cite or reference the source?

    What is NOT hearsay?

    What is admissible?

    Can the decision of a district judge be used to influence another district judge or are they persuaded only by appeals and higher rulings?

    Are newspaper accounts that incorporate quotations from district judges or their rulings something we can incorporate?

    How about if the rulings or cases are outside the state, or in federal courts?

    RSVP

    Allan
    BeMoved@AOL.com

  252. Mike,
    What state are you in and at what stage of the foreclosure process are you in?

    marcus@foreclosureProSe.com

  253. I am a victim of the fraud in Court and presently suffering for the way the foreclosure procedure has been conducted in our case which is horror and extremely painful.
    I am 65 years of age. Since 2008 I have been fighting this foreclosure with my husband, but unfortunately our house was sold on April 8th, 2010. The Judge in Circuit Ninth Orange County Orlando, deffinitely refused to accept that FDLG was lying as well as JPMChase. The Judge’s only concern was that we were living rent free, despite the fact that there is not a single piece of evidence in the complaint. The Judge didn’t care about missing assignments, etc. He didn’t care that I qualified for a Reverse Mortgage due to my age and equity in the house. The Judge didn’t care that my husband is a veteran with a delicate heart condition, two heart attacks and two heart surgeries, diabetic and mental treatment. The Judge didn’t care that Bank declined all our offers of payment in full, and he didn’t care that we lost the car and filed Chapter 7 discharged on Dec. 2008.
    The judge humilliated me in front of other people during our last hearing indicating that he was not going to tolerate anymore that I keep living free and taking advantage of the Bank losses.(Bank Losses? JP Morgan?? )
    The Judge was so mad at us that he practically has punished us by taking advantage of all his power. He denied all our motions, even a request to waive bond during our appeal, which he refused and denied as well, requiring us to find a bond for $105,000 plus $15,000 attorneys fees.
    Our house was sold on February 22nd, and on April 8th we were evicted. I just have no words to explain the pain, confusion, madness, fear, just a mixture of adverse reactions a human can have.
    We were thrown out to the street with no car , little money and all of my art work, materials, equipment, just everything left inside and lost. This is my only source of income.
    The buyers gave us $1,400 to find a tentative place to live. We are being deprived to continue selling our work. This is like being sentenced for a crime we never comitted.
    Today we are in a little room with a computer, still fighting in Court, pending appeal (case is still open) and a discharge injunction in the Bankruptcy Court with an evidentiary hearing scheduled next May 13th. We have a very good case in the appeal, but better yet in the bankruptcy discharged injunction. Of course, we cannot afford an attorney, so we are ProSe.
    We called every single agency in Orlando Florida, Fla. Bar, Orange County Bar, Legal Aid Soc. Seniors First, Senior alliance, Legal Community, The legislators, senators, etc. etc. etc. and no one, had a single idea on how to help us get at leat a part time legal counseling from a pro bono.
    Today, a neighbor just called to inform that all our personal items are out in the street in a huge garage sale, with a sign that says, “State Garage Sale” Our neighbor went into the house and told us that it was a mess, destroyed and looking vandalized. To my knowledge, this is stolen property. This broke my heart, it is terrible, just terrible.I am just running out of strength, but still with hope.
    I read Livinglies blog every single day and hour. Thank You Neil as well as Matt in his blog, you are both my inspiration and light of HOPE.
    If any one has some idea, clue, or whatever legal help in contribution to our case, we will deeply appreciate it.
    We have a good case to sue for losses, suffering, fraud, destruction of property and wonder if there is a contingency fee attorney that could take our case.
    Thank You,
    M. R.
    mistiko13@yahoo.com

  254. Now we are ‘talking’ – Supreme Court Decision article dated 4/21/2010

    “Debt Collectors Can Face Lawsuits for Mistakes, Court Says”

    a short description of the case

    The Supreme Court Wednesday made it easier for consumers to sue debt collectors for sending erroneous collection notices.

    7-2 opinion by Justice Sonia Sotomayor, ruled that debt collectors can’t shield themselves from such lawsuits by arguing that they made a legal error when sending a collection notice.

    An Ohio law firm initiated foreclosure proceedings on behalf of Countrywide.

    Homeowner, disputed that the debt existed.
    Countrywide later acknowledged that Homeowner had in fact paid the debt.
    The law firm withdrew the foreclosure lawsuit.

    Homeowner sued the law firm.
    Argument was that it violated federal debt-collection law by stating in its foreclosure suit that “homeowner” alleged debt would be assumed to be valid unless “””she “”” contested in writing.

    A lower court agreed with omeowner that the firm violated the federal Fair Debt Collection Practices Act.
    Lower court also ruled that the law firm was shielded from liability, because, the violation wasn’t intentional.

    The Supreme Court, ruling that Congress hadn’t explicitly provided a mistake-of-law defense to debt collectors.

    The case is Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, 08-1200.

  255. I need some help! I found the SEC form #8-K report from 2005 where (I believe) my loan was securitized.

    My loan originated with Gateway Funding and was sold to Greenwich Capital Financial Products on 4-26-05.

    This report, dated 7-1-05, was signed by Shakti Radhakishun (VP of Greenwich Capital Acceptance, Inc.)

    According to MERS, the current investor is Deutsche Bank National Trust and it is serviced by OneWest Bank, FSB.

    Now that I have this document…can anybody tell me what I’m looking for in it? I have a hearing soon and appreciate any help! :) ~mike

  256. how Goldman and everybody else did

    http://online.wsj.com/article/SB10001424052748704133804575198120387721724.html?mod=WSJ_hpp_MIDDLENexttoWhatsNewsSecond

    It felt so good to call Goldman, pretending that I was the secretary of Mr. Buffet and tell Mr. Blankfein that his time has come.

  257. JUDGE SCHACK STRIKES AGAIN

    Flushing Sav. Bank, FSB v Chancay
    2010 NY Slip Op 50687(U)
    Decided on April 20, 2010
    Supreme Court, Kings County
    Schack, J.
    Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
    This opinion is uncorrected and will not be published in the printed Official Reports.

    Decided on April 20, 2010

    Supreme Court, Kings County

    Flushing Savings Bank, FSB, Plaintiff,

    against

    Narcizo Chancay, et. al., Defendants.

    34732/08

    Plaintiff

    Grace Y. Lee, Esq.

    Lynch & Associates

    NY NY

    Arthur M. Schack, J.

    In this mortgage foreclosure action, plaintiff’s motion for an order of reference for the premises located at 113 Wilson Avenue, Brooklyn, New York (Block 3197, Lot 6, County of Kings) is denied with prejudice. The complaint is dismissed. The notice of pendency filed against the above-named real property is cancelled. Plaintiff, FLUSHING SAVINGS BANK, FSB (FLUSHING), lacks standing to continue this action because the instant mortgage was satisfied on June 23, 2009. Plaintiff’s counsel never notified the Court that the mortgage had been satisfied and failed to discontinue the instant action with prejudice. I discovered that the mortgage had been satisfied by personally searching the Automated City Register Information System (ACRIS) website of the Office of the City Register, New York City Department of Finance. Plaintiff FLUSHING’s President and Chief Executive Officer, John R. Buran, its counsel, Grace Y. Lee, Esq., and her firm, Lynch & Associates, PLLC, will be given an opportunity to be heard as to why this Court should not sanction them for making a “frivolous motion,” pursuant to 22 NYCRR §130-1.1.

    Background
    Defendant NARCIZO CHANCAY (CHANCAY) borrowed $270,000.00 from

    FLUSHING, on March 30, 2006, and secured by a mortgage, recorded by plaintiff FLUSHING, [*2]at the Office of the City Register of the City of New York, New York City Department of Finance, on April 12, 2006, at City Register File Number (CRFN) 2006000203526. Defendant CHANCAY defaulted in his mortgage loan payments with the September 1, 2008 payment. FLUSHING commenced the instant action with the filing of the summons, complaint and notice of pendency with the Kings County Clerk on December 31, 2008. Plaintiff’s counsel, on April 8, 2009 filed the instant motion for an order of reference with the Court’sForeclosure Department. After reviewing the papers, the Foreclosure Department forwarded the instant motion to me on April 15, 2010.

    On April 19, 2010, I searched ACRIS and discovered that plaintiff FLUSHING executed a satisfaction of the instant mortgage almost ten months ago, on June 23, 2009. The satisfaction was recorded at the Office of the City Register of the City of New York, on July 8, 2009, at CRFN 2009000207047. Further, ACRIS revealed that defendant CHANCAY sold the premises to PERFECT GROUP CONSTRUCTION, INC. (PERFECT), for $585,000.00, with the deed executed on May 19, 2009. The deed was recorded on June 5, 2009, at the Office of the City Register of the City of New York, at CRFN 2009000169790.

    Plaintiff’s counsel never had the courtesy or professionalism to notify the Court that the instant mortgage was satisfied and file a motion to discontinue the instant action. The Court is gravely concerned that: it expended scarce resources on an action that should have been discontinued; and, would have signed an order that could have possibly damaged the credit rating of defendant CHANCAY and put an unfair cloud on the title to the subject premises now owned by PERFECT, causing both defendant CHANCAY and PERFECT much time and effort to correct an error caused by the failure of plaintiff FLUSHING and plaintiff’s counsel to exercise due diligence. If plaintiff FLUSHING is a responsible lender it should have made sure that the Court was notified that the subject mortgage had been satisfied.

    Discussion
    It is clear that plaintiff FLUSHING lacks standing to proceed in the instant action since some time prior to June 23, 2009, when the satisfaction for defendant CHANCAY’s mortgage was executed. The exact date is probably May 19, 2009, when defendant CHANCAY likely paid off the subject mortgage loan as part of his losing with PERFECT for the sale of the subject mortgaged premises. “To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant’s default in payment.” (Campaign v Barba (23 AD3d 327 [2d Dept. 2005]). The instant mortgage was satisfied almost ten months ago and likely paid off eleven months before the instant motion for an order of reference was forwarded to me by the Foreclosure Department.The satisfaction, dated June 23, 2009, states that “FLUSHING SAVINGS BANK, FSB

    . . . certifies that it is the present owner of a mortgage executed by NARCIZO CHANCAY to FLUSHING SAVINGS BANK, FSB on 3/30/2006, to secure payment of the principal sum of $270,000.00 and recorded on 4/12/2006 . . . The above described mortgage is, with the note accompanying it, fully paid, satisfied, and discharged.” (See Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept. 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept. 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept. 2005]; U.S. Bank Trust Nat. Ass’n Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage [*3]Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).

    The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki,

    100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]) declared that “[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.”

    In Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]) the Court held that “[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.” If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

    Since FLUSHING executed the satisfaction for the instant mortgage, the Court must not only deny the instant motion, but also dismiss the complaint and cancel the notice of pendency filed by FLUSHING, with the Kings County Clerk on December 31, 2008. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” Professor David Siegel, in NY Prac, § 334, at 535 [4th ed] observes about a notice of pendency that:

    The plaintiff files it with the county clerk of the real property county,

    putting the world on notice of the plaintiff’s potential rights in the

    action and thereby warning all comers that if they then buy the

    property or lend on the strength of it or otherwise rely on the

    defendant’s right, they do so subject to whatever the action may

    establish as the plaintiff’s right.

    The Court of Appeals, in 5303 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 315 [1984]), commented that “[a] notice of pendency, commonly known as a lis pendens,’ can be a potent shield to litigants claiming an interest in real property.” The Court, at 318-320, outlined the history of the doctrine of lis pendens back to 17th century England. It was formally recognized in New York courts in 1815 and first codified in the Code of Procedure [Field Code] enacted in 1848. At 319, the Court stated that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

    In Israelson v Bradley (308 NY 511, 516 [1955]) the Court observed that with a notice of pendency a plaintiff who has an interest in real property has received from the State:

    an extraordinary privilege which . . . upon the mere filing of the

    notice of a pendency of action, a summons and a complaint and [*4]

    strict compliance with the requirements of section 120 [of the Civil

    Practice Act; now codified in CPLR § § 6501, 6511 and 6512] is

    required. Proper administration of the law by the courts requires

    promptness on the part of a litigant so favored and that he accept

    the shield which has been given him upon the terms imposed and

    that he not be permitted to so use the privilege granted that it

    becomes a sword usable against the owner or possessor of realty.

    If the terms imposed are not met, the privilege is at an end.

    [Emphasis added]

    Article 65 of the CPLR outlines notice of pendency procedures. The Court, in Da Silva v Musso (76 NY2d 436, 442 [1990]), held that “the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title.” The Court of Appeals, quoted Professor Siegel, in holding that “[t]he ability to file a notice of pendency is a privilege that can be lost if abused’ (Siegel, New York Practice § 336, at 512).” (In Re Sakow, 97 NY2d 436, 441 [2002]).

    The instant case, with plaintiff FLUSHING lacking standing to bring this action, and the complaint dismissed, meets the criteria for losing “a privilege that can be lost if abused.” CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

    [t]he court, upon motion of any person aggrieved and upon such

    notice as it may require, shall direct any county clerk to cancel a

    notice of pendency, if service of a summons has not been completed

    within the time limited by section 6512; or if the action has been

    settled, discontinued or abated; or if the time to appeal from a final

    judgment against the plaintiff has expired; or if enforcement of a

    final judgment against the plaintiff has not been stayed pursuant to

    section 5519. [Emphasis added]

    The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. Abatement is defined (Black’s Law Dictionary 3 [7th ed 1999]) as “the act of eliminating or nullifying.” ” An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains’ (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR 6501 (see 5303 Realty Corp. v O & Y Equity Corp. at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1st Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” As plaintiff FLUSHING now lacks standing to sue, the dismissal of the instant complaint must result in the mandatory cancellation of the [*5]December 31, 2008 notice of pendency against the property “in the exercise of the inherent power of the Court.”

    The failure of plaintiff FLUSHING, by its President and Chief Executive Officer, John R. Buran, and its counsel, Grace Y. Lee, Esq. and her firm, Lynch & Associates, PLLC, to discontinue the instant action since the payoff of the CHANCAY mortgage in 2009 appears to be “frivolous.” 22 NYCRR § 130-1.1 (a) states that “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.” Further, it states in 22 NYCRR § 130-1.1 (b), that “sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.”

    22 NYCRR § 130-1.1 (c) states that:

    For purposes of this part, conduct is frivolous if:

    (1) it is completely without merit in law and cannot be supported

    by a reasonable argument for an extension, modification or

    reversal of existing law;

    (2) it is undertaken primarily to delay or prolong the resolution of

    the litigation, or to harass or maliciously injure another; or

    (3) it asserts material factual statements that are false.

    It is clear that since at least June 23, 2009 the instant motion for aan order of reference “is completely without merit in law” and “asserts material factual statements that are false.”

    Several years before the drafting and implementation of the Part 130 Rules for

    costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [1986]) observed that “frivolous litigation is so serious a problem affecting the

    proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] ).”

    Part 130 Rules were subsequently created, effective January 1, 1989, to give the

    courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that:

    Conduct is frivolous and can be sanctioned under the court rule if

    “it is completely without merit . . . and cannot be supported by a

    reasonable argument for an extension, modification or reversal of

    existing law; or . . . it is undertaken primarily to delay or prolong [*6]

    the resolution of the litigation, or to harass or maliciously injure

    another” (22 NYCRR 130-1.1[c] [1], [2] . . . ).

    In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR

    130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . .” Levy at 34, held that “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.”

    The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added].” Since at least June 23, 2009 and probably since May 19, 2009, the instant action is “a waste of judicial resources.” This conduct, as noted in Levy, must be deterred. In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff’s waste of judicial resources [Emphasis added].”

    In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to

    examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent’ (22 NYCRR 130-1.1 [c]).” The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct,

    New York County 2004]), held that “[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992]).” In the instant action, plaintiff’s attorney is responsible for keeping track of whether the mortgage was satisfied. In Sakow at 943, the Court observed that “[a]n attorney cannot safely delegate all duties to others.”

    This Court will examine the conduct of plaintiff FLUSHING and plaintiff’s counsel, in a hearing, pursuant to 22 NYCRR § 130-1.1, to determine if plaintiff FLUSHING, by its President and Chief Executive Officer, John R. Buran, and plaintiff’s counsel Grace Y. Lee, Esq. and her firm Lynch & Associates, PLLC engaged in frivolous conduct, and to allow plaintiff FLUSHING, by its President and Chief Executive Officer John R. Buran, and plaintiff’s counsel Grace Y. Lee, Esq. and her firm Lynch & Associates, PLLC a reasonable opportunity to be heard. (See Mascia v Maresco, 39 AD3d 504 [2d Dept 2007]; Yan v Klein, 35 AD3d 729 [2d [*7]Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept 2004]).

    Conclusion

    Accordingly, it is
    ORDERED that the motion of plaintiff, FLUSHING SAVINGS BANK, FSB, for an order of reference for the premises located at 113 Wilson Avenue, Brooklyn, New York (Block 3197, Lot 6, County of Kings), is denied with prejudice; and it is further

    ORDERED, that since plaintiff, FLUSHING SAVINGS BANK, FSB, lacks standing and is no longer the mortgagee in this foreclosure action, the instant complaint, Index No. 34732/08 is dismissed with prejudice; and it is further

    ORDERED, that the Notice of Pendency filed with the Kings County Clerk on December 31, 2008, by plaintiff, FLUSHING SAVINGS BANK, FSB, in an action to foreclose a mortgage for real property located at 113 Wilson Avenue, Brooklyn, New York (Block 3197, Lot 6, County of Kings), is cancelled; and it is further

    ORDERED that it appearing that plaintiff FLUSHING SAVINGS BANK, FSB, Grace Y. Lee, Esq. and Lynch & Associates, PLLC engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130.1.1 (d), “[a]n award of costs or the imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording: plaintiff FLUSHING SAVINGS BANK, FSB, by its President and Chief Executive Officer, John R. Buran; Grace Y. Lee, Esq.; and, Lynch & Associates, PLLC; “a reasonable opportunity to be heard,” before me in Part 27, on Friday, May 7, 2010, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further

    ORDERED, that Ronald David Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon: John R. Buran, President and Chief Executive Officer of plaintiff FLUSHING SAVINGS BANK, FSB, 144-51 Northern Boulevard, Flushing, New York 11354; and, Grace Y. Lee, Esq. and Lynch & Associates, PLLC, 205 Lexington Avenue, 10th Floor, New York, New York 10016.

    This constitutes the Decision and Order of the Court.

    ENTER

    ___________________________

    HON. ARTHUR M. SCHACK

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  260. NY JUDGE SPINNER “GETS IT”

    Emigrant Mtge. Co. Inc. v Corcione
    2010 NY Slip Op 20133
    Decided on April 16, 2010
    Supreme Court, Suffolk County
    Spinner, J.
    Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
    This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

    Decided on April 16, 2010

    Supreme Court, Suffolk County

    Emigrant Mortgage Co. Inc., Plaintiff

    against

    Anthony J. Corcione and Jane Corcione, Defendants.

    2009-28917

    Joshua Deutsch, Esq.

    Deutsch & Schneider L.L.P.

    Attorneys for Plaintiff

    79-37 Myrtle Avenue

    Glendale, New York 11385

    Sean C. Serpe, Esq.

    Serpe & Associates, P.C.

    Attorneys for Defendants

    450 Seventh Avenue

    New York, New York 10123

    Jeffrey Arlen Spinner, J.

    On July 23, 2009 Plaintiff commenced this action claiming foreclosure of a mortgage by filing its Notice of Pendency and Summons and Complaint with the Clerk of Suffolk County. The mortgage at issue was given by Defendants to Plaintiff on July 5, 2007, in the principal amount of $ 302,500.00 and was recorded with the Clerk of Suffolk County in Liber 21580 of Mortgages at Page 379. Said mortgage was given as collateral security for a simultaneously executed Adjustable Rate Note with interest at the initial rate of 11.625% and it constitutes a first lien upon premises known as 66 Circle Drive, East Northport, Town of Huntington, New York.

    On or about May 1, 2008, owing to a loss of employment, Defendants defaulted upon their monthly installment payments due to Plaintiff under the Adjustable Rate Note. According to Defendants, they had, from the very time of default, assiduously attempted to arrive at an amicable resolution but were met with multiple and varying impediments erected by Plaintiff. They claim to have been ceaselessly trying since the default date, albeit without any success, to obtain a modification from Plaintiff, having proceeded on their own, thence through a modification facilitator and finally through counsel. Plaintiff baldly asserts that Defendants only sought to resolve this matter subsequent to the commencement of the foreclosure action, a position that is belied by the record. Though Plaintiff advances no explanation whatsoever for the fourteen month hiatus between default and suit, its actions, when considered in light of all of the circumstances herein, lead inexorably to the conclusion that this gap in time would indubitably increase the amount of interest Plaintiff could exact from Defendants, hardly a noble or good faith purpose.

    On or about August 3, 2009, initial process was servied upon Defendants and thereafter counsel appeared and interposed a Verified Answer on their behalf. By Notice of Motion dated October 14, 2009 (seq. 001) which was returnable October 28, 2009, Plaintiff applied to this Court for an Order granting summary judgment pursuant to CPLR § 3212 and for the appointment of a referee to compute in accordance with RPAPL § 1321. Thereafter and on October 18, 2009, the first in what evolved into a series of Foreclosure Settlement Conferences was convened. The same was adjourned on no less than five occasions and was ultimately referred to the undersigned by Court Attorney Referee Adrienne Williams Esq., notwithstanding the vociferous and inexplicable objections of Plaintiff’s counsel. A conference was then held by the Court on March 16, 2010 and the entire proceeding was thereafter adjourned for all purposes to April 27, 2010.

    A careful examination of all of the documentation submitted by Plaintiff, both on its motion and at the conference is, at the same time, both starkly revealing and greatly disturbing. While the Adjustable Rate Note contains an initial interest rate of 11.625%, it is subject to change on August 1, 2012 and on the first day of each succeeding August thereafter, until its stated maturity date of August 1, 2037. The basis upon which the interest rate is computed is set forth at some length within Paragraph 4 of the Adjustable Rate Note. Briefly stated, it provides that the holder will determine the rate based upon the average weekly yield on securities issued by the United States Treasury as adjusted to a constant maturity of one year, to which it will then add 6.375% followed by a rounding of the same upward to the nearest one eighth of one percent. Appended thereto (and likewise annexed to the recorded Mortgage) is a document entitled “Default Interest Rate Rider” which, by its express terms, modifies the Adjustable Rate Note by [*2]providing for an upward increase in the rate of interest charged to 18% upon a default by the mortgagors. The default interest rate is triggered by any one of the events of default as they are defined in the Adjustable Rate Note and Mortgage.

    Though not expressly stated, this Court, being fully aware of the customs and practices extant in the mortgage lending industry (including loan origination, warehousing, brokerage, closing, settlement and transfer) must presume that the terms and conditions of the Adjustable Rate Note, Default Interest Rate Ride and Mortgage were the product of unequal bargaining power as between Plaintiff and Defendants. It is a virtual certainty that Defendants were not afforded the opportunity to freely bargain and negotiate in reaching the operative terms that are now subject to this Court’s scrutiny. Since the instruments upon which Plaintiff demands enforcement have obviously been promulgated by the lender to the borrowers and since the operative and binding terms thereof are clearly not negotiable by the borrower, such instruments must be considered to be in the nature of a contract of adhesion, which typically would be construed against the drafter thereof, Belt Painting Corp. v. TIG Insurance Company 100 NY2d 377 (2000).

    On March 16, 2010, in accordance with the provisions of CPLR § 3408, a mandatory foreclosure settlement conference was convened before the Court. Present at that conference were Defendants, their counsel Sean C. Serpe Esq., Millie Rivera as representative of Plaintiff and Plaintiff’s counsel Joshua Deutsch Esq. One of the items produced at that conference was a document entitled “Loan Modification Agreement,” which had been propounded by Plaintiff’s counsel on or about February 23, 2010 and which required an acceptance thereof not later than March 5, 2010 else the offer be revoked and the foreclosure action be continued. This Agreement was intended to effectuate a cure of the arrears over time together with a myriad of other provisions. The amount or arrears to be cured was determined by Plaintiff to total $ 119,330.89 with the sum of $ 84,606.45 to be recapitalized at the rate of 6%. Plaintiff proposed that if the Agreement were fully consummated, after 12 months it would “forgive” default interest of approximately $ 30,000.00.

    According to Plaintiff, the principal balance owed stands at $ 301,721.58 and the interest accrued between May 1, 2008 and March 1, 2010 has reached the not insubstantial sum of $ 95,154.65 with a continuing per diem of $ 132.54 thereafter. According to both Ms. Rivera and Attorney Deutsch, interest was computed at 16% per annum in accordance with the Default Interest Rate Rider described, supra (which, as previously noted, actually provides for default interest to be computed at the rate of 18%, an inconsistency that remains unexplained). In addition to interest, Plaintiff also claimed the sum of $ 19,672.91 for “Other Charges” which Plaintiff declined to explain to Defendants or their counsel. Upon questioning by the Court, it was revealed that these so-called “Other Charges” consisted of some

    $ 1,100.00 in pre-action late charges, unsubstantiated tax and insurance advances of $ 10,000.00, check fees of $ 40.00, legal expenses of $ 3,380.00, unpaid legal expenses of $ 4,515.00 (total claimed legal expenses of $ 7,895.00), property inspection fees of $ 85.00, unpaid inspection fees of $ 40.00 and appraisal fees of $ 350.00.

    The Court questions the entitlement of Plaintiff to claim legal fees, costs and accrued [*3]interest, (especially when computed at a confiscatory rate) inasmuch as not less than fourteen months of accruals were due to Plaintiff’s delay in responding to Defendants’ entreaties toward resolution. Plaintiff’s position appears to be facially unreasonable.

    Although not substantiated, Plaintiff asserts that it has advanced the sum of $ 10,000.00 for taxes and insurance. According to the Tax Collector of the Town of Huntington, the annual tax upon the property at issue is $ 3,209.94, of which only the sum of $ 1,604.97 has been paid for the current levy. According to public records, the taxes for the prior year were $ 2,709.61. Even so, the Affidavit of Joel Marcano, Plaintiff’s Assistant Treasurer, avers that as of September 16, 2009, it had paid $ 6,662.51 for property taxes. These numbers simply do not add up and the amount demanded seems far too round.

    In addition, although reasonable legal fees are customarily allowed in a mortgage foreclosure action where provided for in the instruments of indebtedness, the same are subject to an award by the Court and above all, they must be reasonable and fairly related to the work performed. In this matter, the Court is convinced that the fees demanded by Plaintiff in this matter ($ 7,895.00) are both excessive and unreasonable, especially in light of the paucity of services that appear to have been performed.

    A cursory review of the Agreement at the conference revealed some deplorable particulars. In the paragraph enumerated as 1.02, the language was set out in bold type and reads as follows:

    “Borrowers unconditionally, knowingly, voluntarily, intelligently, and after having obtained

    the advice of counsel or having been given ample opportunity to obtain the advise [sic] of

    counsel and declined to do so, waives any claim, counterclaim, right of recoupment, defenses,

    affirmative defenses or set-off of any kind or nature whatsoever with respect to the Existing

    Default, the Loan Documents, and/or the Indebtedness.”

    Further along, in Paragraph 2.01, the Agreement further provides, in bold and underscored type, that

    “Borrowers submit to the jurisdiction of the Court and confirm that all contractual and

    statutory conditions precedent to such foreclosure proceedings have been satisfied…

    BORROWERS ACKNOWLEDGE THAT ALL PAYMENTS MADE UNDER THIS

    AGREEMENT ARE MADE WITHOUT PREJUDICE TO THE LOAN ACCELERATION OR

    THE PENDING FORECLOSURE PROCEEDINGS AND SHALL NOT CONSTITUTE A

    WAIVER OF ANY OF LENDER’S RIGHTS TO FORECLOSE.”

    Continuing on to Paragraph 2.02 which prescribes that payments must be received by the first day of each month, without grace period, it states, in pertinent part, that [*4]

    “…Emigrant shall, among other things, be immediately entitled, without any notice to the

    Borrowers, to exercise any and all remedies available to it and shall be entitled to collect all

    sums due under the Loan Documents as if this Agreement had not been made…the Borrowers

    shall have no right to cure said default, and Emigrant will be free to pursue all of its rights

    and remedies under the Loan Documents and this Agreement, at law and at equity.”

    Moving along, Paragraph 7.10 is intended to function as a General Release given by “…Borrowers, for themselves and their children, parents, relations…” and running in favor of Plaintiff “and any entities related to it and its past, present and future directors, officers (whether acting in such capacity or individually), shareholders, owners, partners, joint venturers, principals, trustees, creditors, attorneys, representatives, employees, managers…” This clause, employing broad and sweeping language, releases and discharges the cited Releasees from what seems to be every single possible potentiality, including “…(a) any and all claims for violation of the Truth In Lending Act (“TILA”), 15 U.S.C. § 1601, et. seq., or its implementing regulations; (b) any and all claims for unfair and/or deceptive trade practices; ( c) any and all claims for consumer fraud or for fraudulent and/or predatory lending practices; (d) any and all claims for attorney’s fees and costs of any kind or nature, by statute or otherwise; (e) any and all claims that could have been asserted in any legal proceeding or action; and (f) any and all claims that are relating to, concerning, or underlying the Loan, and the brokering, closing, servicing or administration of the Loan.” However, nowhere in the Agreement is there a parallel Release running from Plaintiff to Defendants. The obvious and facially clear intent of this clause is to circumvent each and every state and federal law in the State of New York intended to regulate the mortgage banking industry.

    Perhaps the most distressing section of the Agreement is Paragraph 7.12 which reads verbatim as follows:

    “Borrowers hereby acknowledge, represent and warrant that if they cannot perform in

    accordance with the terms of this Agreement, they will never be able to perform in

    accordance with the Loan Documents, nor will they be able to reorganize under the

    provisions of the United States Bankruptcy Code or any similar law. Accordingly, in

    consideration of this Agreement and in recognition of Emigrant’s willingness to enter

    into this Agreement, Borrowers hereby agree that if a petition in Bankruptcy is filed by

    or against them, as debtor and debtor-in-possession (if applicable), Borrowers hereby

    consent to immediate and unconditional relief from the automatic stay of 11 U.S.C. § 362

    (the “Stay”) in favor of Emigrant, waives their right to oppose a motion for relief from the

    Stay, waives the benefits of the Stay, and hereby admits and agrees that grounds to vacate

    the Stay to permit Emigrant to enforce its rights and remedies under this Agreement, the

    Loan Documents and/or any other documents executed in connection therewith exist and

    shall continue to exist, which grounds include, without limitation, the fact that Emigrant’s

    interests in the Property cannot be adequately protected.” [*5]

    This clause, if given legal effect, effectively attempts to deprive Defendants of any ability, now or at any future date, to act in a legitimate manner to save their home by invoking the protection of the United States Bankruptcy Code (11 U.S.C. § 101 et. seq.). The automatic stay is effective upon the filing of a petition in bankruptcy and is imposed pursuant to 11 U.S.C. § 362. The automatic stay functions as perhaps the most important tool for the protection of the debtor, the creditors and preservation of the estate. It is abundantly clear that vacatur of the automatic stay is exclusively within the province of the Bankruptcy Court, U.S. ex. rel. Fullington v. Parkway Hospital Inc. 351 B.R. 280 (Bankr. E.D.NY, 2006) and that such a purported waiver of the automatic stay is legally inefficacious, M.E.S. Inc. v. M.J. Favorito Electric Inc. 2010 US Dist LEXIS 23809 (E.D.NY, 3/15/2010). By including this clause, it is clear that were it enforceable, Plaintiff would be able to pre-empt the federal insolvency statutes.

    This Court has never been presented with such a waiver, especially when accompanied by absurd representations (drafted by the lender) that amount to what could best be described as an express warranty that Defendants presently are and will forever be insolvent. It is axiomatic that a pre-bankruptcy waiver of such a valuable statutory right, even if freely bargained for (and in this Court’s opinion, this is certainly not the case), should not, under any circumstances, be enforced against consumer debtors such as Defendants. In the view of this Court, such a highly questionable waiver as this one is unconscionable, unreasonable, overreaching and is absolutely void as against public policy. This is even more glaringly true when the Agreement is reviewed in toto and not piece by piece. This Court is constrained to determine that the waiver, the release and indeed the Agreement as a whole is unacceptable for all purposes.

    In 2008, New York’s Assembly and Senate enacted Chapter 472 of the Laws of 2008 which constituted a sweeping reform of the laws regarding sub-prime, high cost and non-traditional home loans. Part and parcel of that legislation included a newly enacted CPLR § 3408 which required a mandatory settlement conference in an action to foreclose such a loan. Since its enactment, this Court, sitting as the Residential Mortgage Foreclosure Conference Part, has mandated that the parties to such an action act and negotiate in good faith. Indeed, in December of 2009, both the Assembly and the Senate amended CPLR § 3408 by, among other things, adding a requirement that the parties act in good faith. Indeed, my learned and distinguished colleague, Justice Timothy J. Walker, in the matter of Wells Fargo Bank N.A. v. Hughes 2010 NY Slip Op (Supreme Court, Erie County; 1/13/2010) declined to approve a settlement proposal where the Plaintiff failed to act in good faith as required by CPLR § 3408. Regrettably, it is patently clear to this Court that Plaintiff has failed to act in good faith in this matter.

    Upon reviewing the totality of the circumstances herein, this Court is driven to the inescapable conclusion that Plaintiff has, by way of calculation and pre-meditation (as evidenced by the terms of its carefully crafted Agreement), created a scenario whereby it is a virtual certainty that Defendants will ultimately be irreparably damaged and further, by way of the Agreement, has gone to extraordinary lengths in an attempt to insulate itself from liability while [*6]at the same time ensuring that it will not sustain any pecuniary loss and that all cost will be borne by Defendants. In short, the conduct of Plaintiff in this matter has been over-reaching, shocking, willful and unconscionable, is wholly devoid of even so much as a scintilla of good faith and cannot be countenanced by this Court.

    Since an action to foreclose a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investing Co. 274 NY 215 (1937), all of the tenets of equity are fully applicable to the proceeding, including the rules governing punitive or exemplary damages, I.H.P. Corp. v. 210 Central Park South Corp. 12 NY2d 329 (1963). Indeed this Court is persuaded that Judge Benjamin Cardozo was most assuredly correct in stating that “The whole body of principles, whether of law or of equity, bearing on the case, becomes the reservoir drawn upon by the court in enlightening its judgment” Susquehannah Steamship Co. Inc. v. A.O. Andersen & Co. Inc. 239 NY 289 at 294 (1925). In a suit in equity, the Court is vested with jurisdiction to do that which ought to be done. While the Court notes that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York (see CPLR 103, Field Code of 1848 §§ 2, 3, 4, 69), the Supreme Court is nevertheless vested with equity jurisdiction and the distinct rules governing equity are still very much applicable, Carroll v. Bullock 207 NY 567 (1913).

    In those rare instances where the conduct of a party is unconscionable, shocking or egregious, a Court of equity is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary to both effectuate punishment as well as to deter the offending party from engaging in such reprehensible conduct in the future. Such an award may also be made to address, as so ably enunciated by our Court of Appeals in Home Insurance Co. v. American Home Products Corp. 75 NY2d 196, 550 NE2d 930, 551 NYS2d 481 (1989) “…gross misbehavior for the good of the public…on the ground of public policy”. Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable, I.H.P. Corp. v. 210 Central Park South Corp. 12 NY2d 329, 189 NE2d 812, 239 NYS2d 547 (1963).

    Under the unique circumstances of this matter, the Court determines that Plaintiff be forever barred and prohibited from collecting any of the claimed interest accrued on the loan between the date of default and March 1, 2010, that Plaintiff be barred and prohibited from recovering any claimed legal fees and expenses as well as any and all claimed advances to date and further that Plaintiff’s debt be determined at this time to be no more than the principal balance of $ 301,721.58. The Court also determines that the imposition of exemplary damages upon Plaintiff is equitable, necessary and appropriate, both in light of Plaintiff’s shockingly inequitable, bad faith conduct as well as to serve as an appropriate deterrent to any future outrageous, improper and wrongful activities.

    The Court hereby fixes the amount of exemplary damages in the sum of $ 100,000.00, recoverable by Defendants from Plaintiff.

    For all of the foregoing reasons, it is, therefore [*7]

    ORDERED, ADJUDGED and DECREED that Plaintiff’s application for summary judgment and appointment of a Referee is denied; and it is further

    ORDERED , ADJUDGED and DECREED that Plaintiff, its successors, assigns and others are forever barred, foreclosed and prohibited from demanding, collecting or attempting to collect, directly or indirectly, any and all of the sums in this proceeding delineated as interest, default interest, attorney’s fees, legal fees, costs, disbursements, advances or any sums other than the principal balance, that may have accrued from May 1, 2008 up to the date of this Order; and it is further

    ORDERED, ADJUDGED and DECREED that Defendants ANTHONY J. CORCIONE and JANE CORCIONE residing at 66 Circle Drive, East Northport, New York 11731 recover judgment against Plaintiff EMIGRANT MORTGAGE COMPANY INC. with an office located at 5 East 42nd Street, New York, New York 10017 in the principal sum of $ 100,000.00 representing exemplary damages, and that Defendants have execution therefor. The Clerk of Suffolk County is directed to enter judgment accordingly.

    This shall constitute the Decision, Judgment and Order of the Court.

    Dated: April 16, 2010

    Riverhead, New York

    ENTER:

    ______________________________________

    JEFFREY ARLEN SPINNER, J.S.C.

  261. Interview with a banker about a foreclosure. The banker was placed on the witness stand and sworn in. The plaintiff’s (borrower’s) attorney asked the banker the routine questions concerning the banker’s education and background.

    The attorney asked the banker, “What is court exhibit A?”
    The banker responded by saying, “This is a promissory note.”
    The attorney then asked, “Is there an agreement between Mr. Smith (borrower) and the defendant?”
    The banker said, “Yes.”
    The attorney asked, “Do you believe the agreement includes a lender and a borrower?”
    The banker responded by saying, “Yes, I am the lender and Mr. Smith is the borrower.”
    The attorney asked, “What do you believe the agreement is?”
    The banker quickly responded, saying, ” We have the borrower sign the note and we give the borrower a check.”
    The attorney asked, “Does this agreement show the words borrower, lender, loan, interest, credit, or money within the agreement?”
    The banker responded by saying, “Sure it does.”
    The attorney asked, `”According to your knowledge, who was to loan what to whom according to the written agreement?”
    The banker responded by saying, “The lender loaned the borrower a $50,000 check. The borrower got the money and the house and has not repaid the money.”
    The attorney noted that the banker never said that the bank received the promissory note as a loan from the borrower to the bank. He asked, “Do you believe an ordinary person can use ordinary terms and understand this written agreement?”
    The banker said, “Yes.”
    The attorney asked, “Do you believe you or your company legally own the promissory note and have the right to enforce payment from the borrower?”
    The banker said, “Absolutely we own it and legally have the right to collect the money.”
    The attorney asked, “Does the $50,000 note have actual cash value of $50,000? Actual cash value means the promissory note can be sold for $50,000 cash in the ordinary course of business.”
    The banker said, “Yes.”
    The attorney asked, “According to your understanding of the alleged agreement, how much actual cash value must the bank loan to the borrower in order for the bank to legally fulfill the agreement and legally own the promissory note?”
    The banker said, “$50,000.”
    The attorney asked, “According to your belief, if the borrower signs the promissory note and the bank refuses to loan the borrower $50,000 actual cash value, would the bank or borrower own the promissory note?”
    The banker said, “The borrower would own it if the bank did not loan the money. The bank gave the borrower a check and that is how the borrower financed the purchase of the house.”
    The attorney asked, “Do you believe that the borrower agreed to provide the bank with $50,000 of actual cash value which was used to fund the $50,000 bank loan check back to the same borrower, and then agreed to pay the bank back $50,000 plus interest?”
    The banker said, “No. If the borrower provided the $50,000 to fund the check, there was no money loaned by the bank so the bank could not charge interest on money it never loaned.”
    The attorney asked, “If this happened, in your opinion would the bank legally own the promissory note and be able to force Mr. Smith to pay the bank interest and principal payments?”
    The banker said, “I am not a lawyer so I cannot answer legal questions.”
    The attorney asked, ” Is it bank policy that when a borrower receives a $50,000 bank loan, the bank receives $50,000 actual cash value from the borrower, that this gives value to a $50,000 bank loan check, and this check is returned to the borrower as a bank loan which the borrower must repay?”
    The banker said, “I do not know the bookkeeping entries.”
    The attorney said, “I am asking you if this is the policy.”
    The banker responded, “I do not recall.”
    The attorney again asked, “Do you believe the agreement
    between Mr. Smith and the bank is that Mr. Smith provides the bank with actual cash value of $50,000 which is used to fund a $50,000 bank loan check back to himself which he is then required to repay plus interest back to the same bank?”
    The banker said, ” I am not a lawyer.”
    The attorney said, “Did you not say earlier that an ordinary person can use ordinary terms and understand this written agreement?”
    The banker said, “Yes.”
    The attorney handed the bank loan agreement marked “Exhibit B” to the banker. He said, “Is there anything in this agreement showing the borrower had knowledge or showing where the borrower gave the bank authorization or permission for the bank to receive $50,000 actual cash value from him and to use this to fund the $50,000 bank loan check which obligates him to give the bank back $50,000 plus interest?”
    The banker said, “No.”
    The lawyer asked, “If the borrower provided the bank with actual cash value of $50,000 which the bank used to fund the $50,000 check and returned the check back to the alleged borrower as a bank loan check, in your opinion, did the bank loan $50,000 to the borrower?”
    The banker said, “No.”
    The attorney asked, “If a bank customer provides actual cash value of $50,000 to the bank and the bank returns $50,000 actual cash value back to the same customer, is this a swap or exchange of $50,000 for $50,000.”
    The banker replied, “Yes.”
    The attorney asked, “Did the agreement call for an exchange of $50,000 swapped for $50,000, or did it call for a $50,000 loan?”
    The banker said, “A $50,000 loan.”
    The attorney asked, “Is the bank to follow the Federal Reserve Bank policies and procedures when banks grant loans.”
    The banker said, “Yes.”
    The attorney asked, “What are the standard bank bookkeeping entries for granting loans according to the Federal Reserve Bank policies and procedures?” The attorney handed the banker FED publication Modern Money Mechanics, marked “Exhibit C”.
    The banker said, “The promissory note is recorded as a bank asset and a new matching deposit (liability) is created. Then we issue a check from the new deposit back to the borrower.”
    The attorney asked, “Is this not a swap or exchange of $50,000 for $50,000?”
    The banker said, “This is the standard way to do it.”
    The attorney said, “Answer the question. Is it a swap or exchange of $50,000 actual cash value for $50,000 actual cash value? If the note funded the check, must they not both have equal value?”
    The banker then pleaded the Fifth Amendment.
    The attorney asked, “If the bank’s deposits (liabilities) increase, do the bank’s assets increase by an asset that has actual cash value?”
    The banker said, “Yes.”
    The attorney asked, “Is there any exception?”
    The banker said, “Not that I know of.”
    The attorney asked, “If the bank records a new deposit and records an asset on the bank’s books having actual cash value, would the actual cash value always come from a customer of the bank or an investor or a lender to the bank?”
    The banker thought for a moment and said, “Yes.”
    The attorney asked, “Is it the bank policy to record the promissory note as a bank asset offset by a new liability?”
    The banker said, “Yes.”
    The attorney said, “Does the promissory note have actual cash value equal to the amount of the bank loan check?”
    The banker said “Yes.”
    The attorney asked, “Does this bookkeeping entry prove that the borrower provided actual cash value to fund the bank loan check?”
    The banker said, “Yes, the bank president told us to do it this way.”
    The attorney asked, “How much actual cash value did the bank loan to obtain the promissory note?”
    The banker said, “Nothing.”
    The attorney asked, “How much actual cash value did the bank receive from the borrower?”
    The banker said, “$50,000.”
    The attorney said, “Is it true you received $50,000 actual cash value from the borrower, plus monthly payments and then you foreclosed and never invested one cent of legal tender or other depositors’ money to obtain the promissory note in the first place? Is it true that the borrower financed the whole transaction?”
    The banker said, “Yes.”
    The attorney asked, “Are you telling me the borrower agreed to give the bank $50,000 actual cash value for free and that the banker returned the actual cash value back to the same person as a bank loan?”
    The banker said, “I was not there when the borrower agreed to the loan.”
    The attorney asked, “Do the standard FED publications show the bank receives actual cash value from the borrower for free and that the bank returns it back to the borrower as a bank loan?”
    The banker said, “Yes.”
    The attorney said, “Do you believe the bank does this without the borrower’s knowledge or written permission or authorization?”
    The banker said, “No.”
    The attorney asked, “To the best of your knowledge, is there written permission or authorization for the bank to transfer $50,000 of actual cash value from the borrower to the bank and for the bank to keep it for free?
    The banker said, “No.”
    Does this allow the bank to use this $50,000 actual cash value to fund the $50,000 bank loan check back to the same borrower, forcing the borrower to pay the bank $50,000 plus interest? ”
    The banker said, “Yes.”
    The attorney said, “If the bank transferred $50,000 actual cash value from the borrower to the bank, in this part of the transaction, did the bank loan anything of value to the borrower?”
    The banker said, “No.” He knew that one must first deposit something having actual cash value (cash, check, or promissory note) to fund a check.
    The attorney asked, “Is it the bank policy to first transfer the actual cash value from the alleged borrower to the lender for the amount of the alleged loan?”
    The banker said, “Yes.”
    The attorney asked, “Does the bank pay IRS tax on the actual cash value transferred from the alleged borrower to the bank?”
    The banker answered, “No, because the actual cash value transferred shows up like a loan from the borrower to the bank, or a deposit which is the same thing, so it is not taxable.”
    The attorney asked, “If a loan is forgiven, is it taxable?”
    The banker agreed by saying, “Yes.”
    The attorney asked, “Is it the bank policy to not return the actual cash value that they received from the alleged borrower unless it is returned as a loan from the bank to the alleged borrower?”
    “Yes”, the banker replied.
    The attorney said, “You never pay taxes on the actual cash value you receive from the alleged borrower and keep as the bank’s property?”
    “No. No tax is paid.”, said the crying banker.
    The attorney asked, “When the lender receives the actual cash value from the alleged borrower, does the bank claim that it then owns it and that it is the property of the lender, without the bank loaning or risking one cent of legal tender or other depositors’ money?”
    The banker said, “Yes.”
    The attorney asked, “Are you telling me the bank policy is that the bank owns the promissory note (actual cash value) without loaning one cent of other depositors’ money or legal tender, that the alleged borrower is the one who provided the funds deposited to fund the bank loan check, and that the bank gets funds from the alleged borrower for free? Is the money then returned back to the same person as a loan which the alleged borrower repays when the bank never gave up any money to obtain the promissory note? Am I hearing this right? I give you the equivalent of $50,000, you return the funds back to me, and I have to repay you $50,000 plus interest? Do you think I am stupid?”
    In a shaking voice the banker cried, saying, “All the banks are doing this. Congress allows this.”
    The attorney quickly responded, “Does Congress allow the banks to breach written agreements, use false and misleading advertising, act without written permission, authorization, and without the alleged borrower’s knowledge to transfer actual cash value from the alleged borrower to the bank and then return it back as a loan?”
    The banker said, “But the borrower got a check and the house.”
    The attorney said, “Is it true that the actual cash value that was used to fund the bank loan check came directly from the borrower and that the bank received the funds from the alleged borrower for free?”
    “It is true”, said the banker.
    The attorney asked, “Is it the bank’s policy to transfer actual cash value from the alleged borrower to the bank and then to keep the funds as the bank’s property, which they loan out as bank loans?”
    The banker, showing tears of regret that he had been caught, confessed, “Yes.”
    The attorney asked, “Was it the bank’s intent to receive actual cash value from the borrower and return the value of the funds back to the borrower as a loan?”
    The banker said, “Yes.” He knew he had to say yes because of the bank policy.
    The attorney asked, “Do you believe that it was the borrower’s intent to fund his own bank loan check?”
    The banker answered, “I was not there at the time and I cannot know what went through the borrower’s mind.”
    The attorney asked, “If a lender loaned a borrower $10,000 and the borrower refused to repay the money, do you believe the lender is damaged?”
    The banker thought. If he said no, it would imply that the borrower does not have to repay. If he said yes, it would imply that the borrower is damaged for the loan to the bank of which the bank never repaid. The banker answered, “If a loan is not repaid, the lender is damaged.”
    The attorney asked, “Is it the bank policy to take actual cash value from the borrower, use it to fund the bank loan check, and never return the actual cash value to the borrower?”
    The banker said, “The bank returns the funds.”
    The attorney asked, “Was the actual cash value the bank received from the alleged borrower returned as a return of the money the bank took or was it returned as a bank loan to the borrower?”
    The banker said, “As a loan.”
    The attorney asked, “How did the bank get the borrower’s money for free?”
    The banker said, “That is how it works.”

  262. ATTENTION…FLORIDIANS AT LARGE…ATTENTION

    I BEG of you to assist us in this matter of DEFEATING the HB1523 & the Senate Bill 2270.These bills will change your state of Florida into a NON-JUDICIAL one.

    ILLLIGAL FORECLOSURE ALERT

    Do YOU want YOUR day in court when it comes right down to it?
    Let’s hypothesize a moment.
    Let’s assume you have asked YOUR Mortgage Servicer for them to PROVE UP THE NOTE.
    Have THEY yet? NO? WHY?
    You’re guess is as good as mine.

    Please Join Us at the Capitol Building in Tallahassee on

    Wednesday April 21’st for the:

    RALLY IN TALLY

    8:00am RALLY begins @ Waller Park

    1:00pm RALLY moves to the Front of the Historical Capitol

    3:00pm RALLY moves to the Courtyard

    http://www.huffingtonpost.com/richard-zombeck/homeowner-road-trip-rally_b_541410.html

    http://www.foreclosurehamlet.org

    http://www.4closurefraud.org

    http://www.livinglies.wordpress.com

  263. Florida–there’s a Rally in Tallahassee on April 21 to tell our legislature to STOP THE FORECLOSURES–several attorneys are sponsoring buses from different cities around the state–GET YOUR VOICE HEARD–these are the freedom rides of our era– (even if you’re not from Florida, come on down and explain to our legislature about the non-judicial foreclosure process)–check out mattweidnerlaw.com –click on blog

  264. Wells Fargo Bank, N.A. v Hunte
    2010 NY Slip Op 50637(U)
    Decided on April 14, 2010
    Supreme Court, Kings County
    Schack, J.
    Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
    This opinion is uncorrected and will not be published in the printed Official Reports.

    Decided on April 14, 2010

    Supreme Court, Kings County

    Wells Fargo Bank, N.A. d/b/a AMERICAS SERVICING COMPANY, Plaintiff,

    against

    Glenda Hunte, et. al., Defendants.

    12705/07

    Appearances:

    Plaintiff

    Peter G. Zavatsky

    Zavatsky Mendelsohn Gross Savino & Levy LLP

    Syosset NY

    Arthur M. Schack, J.

    In this mortgage foreclosure action, plaintiff’s motion for judgment of foreclosure and sale for the premises located at 1917 Bergen Street, Brooklyn, New York (Block 1446, Lot 55, County of Kings) is denied with prejudice. The complaint is dismissed. The notice of pendency filed against the above-named real property is cancelled. Plaintiff, WELLS FARGO BANK, N.A. d/b/a AMERICAS SERVICING COMPANY (WELLS FARGO), lacks standing to continue this action because the instant mortgage was satisfied on May 20, 2009. Plaintiff’s counsel never notified the Court that the mortgage had been satisfied and failed to discontinue the instant action with prejudice. I discovered that the mortgage had been satisfied by personally searching the Automated City Register Information System (ACRIS) website of the Office of the City Register, New York City Department of Finance. Plaintiff’s counsel, Peter G. Zavatsky, Esq., and his firm, Zavatsky, Mendelsohn & Levy, LLP, will be given an opportunity to be heard as to why this Court should not sanction them for making a “frivolous motion,” pursuant to 22 NYCRR §130-1.1.

    Background
    Defendant GLENDA HUNTE (HUNTE) borrowed $480,000.00 from CREDIT

    SUISSE FINANCIAL CORPORATION (CREDIT SUISSE), on May 30, 2006, which was [*2]secured by a mortgage, recorded by MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (MERS), as nominee for CREDIT SUISSE FINANCIAL CORPORATION, at the Office of the City Register of the City of New York, New York City Department of Finance, on June 21, 2006, at City Register File Number (CRFN) 2006000351718. Defendant HUNTE defaulted in her mortgage loan payments with the October 1, 2006 payment. MERS, as nominee for CREDIT SUISSE, commenced the instant action with the filing of the summons, complaint and notice of pendency with the Kings County Clerk on April 17, 2007. Then on May 24, 2007, MERS, as nominee for CREDIT SUISSE, assigned the subject mortgage and note to WELLS FARGO. This was recorded at the Office of the City Register of the City of New York, New York City Department of Finance, on December 12, 2007, at City Register File Number (CRFN) 2007000608207.

    I granted WELLS FARGO’s motion for an order of reference on June 3, 2008, amended the caption to reflect that WELLS FARGO had become the plaintiff by virtue of the assignment from MERS, as nominee for CREDIT SUISSE, and appointed a referee to ascertain and compute the amount due plaintiff. The referee prepared a report, dated July 25, 2008. Plaintiff’s counsel, on August 6, 2008 filed the instant motion for a judgment of foreclosure and sale with the Court’sForeclosure Department. After reviewing the papers, the Foreclosure Department forwarded the instant motion to me on April 5, 2010.

    On April 6, 2010, I searched ACRIS and discovered that WELLS FARGO executed a satisfaction of the instant mortgage more than ten months ago, on May 20, 2009. The satisfaction was recorded at the Office of the City Register of the City of New York, on June 1, 2009, at CRFN 2009000163274. Further, ACRIS revealed that defendant HUNTE sold the premises to Milton R. Linguard for $610,000.00, with the deed executed on March 13, 2009. The deed was recorded on June 16, 2009, at the Office of the City Register of the City of New York, at CRFN 2009000181761. ACRIS also revealed that Mr. Linguard, on March 13, 2009, borrowed $518,500.00 from GOLDEN FIRST MORTGAGE CORP. This was secured by a mortgage recorded at the Office of the City Register of the City of New York, on June 16, 2009, by MERS, as nominee for GOLDEN FIRST MORTGAGE CORP., at CRFN 2009000181762.

    Plaintiff’s counsel never had the courtesy to notify the Court that the instant mortgage was satisfied and file a motion to discontinue the instant action. The Court is gravely concerned that: it expended scarce resources on an action that should have been discontinued; and, would have signed an order that could have possibly damaged the credit rating of defendant HUNTE and put an unfair cloud on the title to the subject premises now owned by Mr. Linguard, causing both defendant HUNTE and Mr. Linguard much time and effort to correct an error caused by the failure of plaintiff’s counsel to exercise due diligence. The Court notes that Mr. Zavatsky, in his affirmation for an award of attorneys’ fees, requests that this Court award him $3,000.00 because, he states in ¶ 8 of his affirmation, that he has “been admitted to the Bar of the State of New York for more than thirty (30) years and have devoted my practice to real estate litigation and mortgage foreclosure practice for that entire time . . . and I have lectured on the subject of mortgage foreclosures.”

    Discussion
    It is clear that plaintiff WELLS FARGO lacks standing to proceed in the instant action since some time prior to May 20, 2009, when the satisfaction for defendant HUNTE’s mortgage was [*3]executed. The exact date is probably March 13, 2009, when defendant HUNTE likely paid off the subject mortgage loan as part of her closing with Mr. Linguard for the sale of the subject mortgaged premises. “To establish a prima facie case in an action to foreclose a mortgage, the plaintiff must establish the existence of the mortgage and the mortgage note, ownership of the mortgage, and the defendant’s default in payment.” (Campaign v Barba (23 AD3d 327 [2d Dept. 2005]). The instant mortgage was satisfied more then ten months ago and likely paid off more than one year before the instant motion for a judgment of foreclosure and sale was forwarded to me by the Foreclosure Department.The satisfaction, dated May 20, 2009, states that “WELLS FARGO BANK, NA, . . . holder of a certain mortgage evidencing an indebtedness in the amount of $480,000.00, plus interest, whose parties, dates and recording information are below [the instant mortgage's amount, the mortgagee, date, CRFN, block number, lot number, assignment, etc. are described in detail] does hereby acknowledge that it has received full payment and satisfaction of the same, and in consideration thereof, does hereby satisfy and discharge said mortgage.” (See Household Finance Realty Corp. of New York v Wynn, 19 AD3d 545 [2d Dept. 2005]; Sears Mortgage Corp. v Yahhobi, 19 AD3d 402 [2d Dept. 2005]; Ocwen Federal Bank FSB v Miller, 18 AD3d 527 [2d Dept. 2005]; U.S. Bank Trust Nat. Ass’n Trustee v Butti, 16 AD3d 408 [2d Dept 2005]; First Union Mortgage Corp. v Fern, 298 AD2d 490 [2d Dept 2002]; Village Bank v Wild Oaks, Holding, Inc., 196 AD2d 812 [2d Dept 1993]).

    The Court of Appeals (Saratoga County Chamber of Commerce, Inc. v Pataki,

    100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003]) declared that “[s]tanding to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress.”

    In Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]) the Court held that “[s]tanding to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request.” If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).

    Since WELLS FARGO executed the satisfaction for the instant mortgage, the Court must not only deny the instant motion, but also dismiss the complaint and cancel the notice of pendency filed by MERS, as nominee for CREDIT SUISSE, with the Kings County Clerk on April 17, 2007. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” Professor David Siegel, in NY Prac, § 334, at 535 [4th ed] observes about a notice of pendency that:

    The plaintiff files it with the county clerk of the real property county,

    putting the world on notice of the plaintiff’s potential rights in the

    action and thereby warning all comers that if they then buy the

    property or lend on the strength of it or otherwise rely on the

    defendant’s right, they do so subject to whatever the action may [*4]

    establish as the plaintiff’s right.

    The Court of Appeals, in 5303 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 315 [1984]), commented that “[a] notice of pendency, commonly known as a lis pendens,’ can be a potent shield to litigants claiming an interest in real property.” The Court, at 318-320, outlined the history of the doctrine of lis pendens back to 17th century England. It was formally recognized in New York courts in 1815 and first codified in the Code of Procedure [Field Code] enacted in 1848. At 319, the Court stated that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

    In Israelson v Bradley (308 NY 511, 516 [1955]) the Court observed that with a notice of pendency a plaintiff who has an interest in real property has received from the State:

    an extraordinary privilege which . . . upon the mere filing of the

    notice of a pendency of action, a summons and a complaint and

    strict compliance with the requirements of section 120 [of the Civil

    Practice Act; now codified in CPLR § § 6501, 6511 and 6512] is

    required. Proper administration of the law by the courts requires

    promptness on the part of a litigant so favored and that he accept

    the shield which has been given him upon the terms imposed and

    that he not be permitted to so use the privilege granted that it

    becomes a sword usable against the owner or possessor of realty.

    If the terms imposed are not met, the privilege is at an end.

    [Emphasis added]

    Article 65 of the CPLR outlines notice of pendency procedures. The Court, in Da Silva v Musso (76 NY2d 436, 442 [1990]), held that “the specific statutorily prescribed mechanisms for implementing this provisional remedy . . . were designed with a view toward balancing the interests of the claimant in the preservation of the status quo against the equally legitimate interests of the property owner in the marketability of his title.” The Court of Appeals, quoted Professor Siegel, in holding that “[t]he ability to file a notice of pendency is a privilege that can be lost if abused’ (Siegel, New York Practice § 336, at 512).” (In Re Sakow, 97 NY2d 436, 441 [2002]).

    The instant case, with plaintiff WELLS FARGO lacking standing to bring this action, and the complaint dismissed, meets the criteria for losing “a privilege that can be lost if abused.” CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

    [t]he court, upon motion of any person aggrieved and upon such

    notice as it may require, shall direct any county clerk to cancel a

    notice of pendency, if service of a summons has not been completed [*5]

    within the time limited by section 6512; or if the action has been

    settled, discontinued or abated; or if the time to appeal from a final

    judgment against the plaintiff has expired; or if enforcement of a

    final judgment against the plaintiff has not been stayed pursuant to

    section 5519. [Emphasis added]

    The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. Abatement is defined (Black’s Law Dictionary 3 [7th ed 1999]) as “the act of eliminating or nullifying.” ” An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains’ (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR 6501 (see 5303 Realty Corp. v O & Y Equity Corp. at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1st Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” As plaintiff WELLS FARGO now lacks standing to sue, the dismissal of the instant complaint must result in the mandatory cancellation of the April 17, 2007 notice of pendency against the property “in the exercise of the inherent power of the Court.”

    The failure of Peter G. Zavatsky, Esq., and his firm, Zavatsky, Mendelsohn & Levy, LLP, to discontinue the instant action since the payoff of the HUNTE mortgage in 2009 appears to be “frivolous.” 22 NYCRR § 130-1.1 (a) states that “the Court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart.” Further, it states in 22 NYCRR § 130-1.1 (2), that “sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated.”

    22 NYCRR § 130-1.1 (c) states that:

    For purposes of this part, conduct is frivolous if:

    (1) it is completely without merit in law and cannot be supported

    by a reasonable argument for an extension, modification or

    reversal of existing law;

    (2) it is undertaken primarily to delay or prolong the resolution of

    the litigation, or to harass or maliciously injure another; or

    (3) it asserts material factual statements that are false.

    It is clear that since January 6, 2010 the instant motion for aan order of reference “is completely without merit in law” and “asserts material factual statements that are false.”

    Several years before the drafting and implementation of the Part 130 Rules for

    costs and sanctions, the Court of Appeals (A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 6 [*6][1986]) observed that “frivolous litigation is so serious a problem affecting the

    proper administration of justice, the courts may proscribe such conduct and impose sanctions in this exercise of their rule-making powers, in the absence of legislation to the contrary (see NY Const, art VI, § 30, Judiciary Law § 211 [1] [b] ).”

    Part 130 Rules were subsequently created, effective January 1, 1989, to give the

    courts an additional remedy to deal with frivolous conduct. These stand beside Appellate Division disciplinary case law against attorneys for abuse of process or malicious prosecution. The Court, in Gordon v Marrone (202 AD2d 104, 110 [2d Dept 1994], lv denied 84 NY2d 813 [1995]), instructed that:

    Conduct is frivolous and can be sanctioned under the court rule if

    “it is completely without merit . . . and cannot be supported by a

    reasonable argument for an extension, modification or reversal of

    existing law; or . . . it is undertaken primarily to delay or prolong

    the resolution of the litigation, or to harass or maliciously injure

    another” (22 NYCRR 130-1.1[c] [1], [2] . . . ).

    In Levy v Carol Management Corporation (260 AD2d 27, 33 [1st Dept 1999]) the Court stated that in determining if sanctions are appropriate the Court must look at the broad pattern of conduct by the offending attorneys or parties. Further, “22 NYCRR

    130-1.1 allows us to exercise our discretion to impose costs and sanctions on an errant party . . .” Levy at 34, held that “[s]anctions are retributive, in that they punish past conduct. They also are goal oriented, in that they are useful in deterring future frivolous conduct not only by the particular parties, but also by the Bar at large.”

    The Court, in Kernisan, M.D. v Taylor (171 AD2d 869 [2d Dept 1991]), noted that the intent of the Part 130 Rules “is to prevent the waste of judicial resources and to deter vexatious litigation and dilatory or malicious litigation tactics (cf. Minister, Elders & Deacons of Refm. Prot. Church of City of New York v 198 Broadway, 76 NY2d 411; see Steiner v Bonhamer, 146 Misc 2d 10) [Emphasis added].” Since at least May 20, 2009 and probably since March 13, 2009, the instant action is “a waste of judicial resources.” This conduct, as noted in Levy, must be deterred. In Weinstock v Weinstock (253 AD2d 873 [2d Dept 1998]) the Court ordered the maximum sanction of $10,000.00 for an attorney who pursued an appeal “completely without merit,” and holding, at 874, that “[w]e therefore award the maximum authorized amount as a sanction for this conduct (see, 22 NYCRR 130-1.1) calling to mind that frivolous litigation causes a substantial waste of judicial resources to the detriment of those litigants who come to the Court with real grievances [Emphasis added].” Citing Weinstock, the Appellate Division, Second Department, in Bernadette Panzella, P.C. v De Santis (36 AD3d 734 [2d Dept 2007]) affirmed a Supreme Court, Richmond County $2,500.00 sanction, at 736, as “appropriate in view of the plaintiff’s waste of judicial resources [Emphasis added].”

    In Navin v Mosquera (30 AD3d 883 [3d Dept 2006]) the Court instructed that when considering if specific conduct is sanctionable as frivolous, “courts are required to [*7]

    examine whether or not the conduct was continued when its lack of legal or factual basis was apparent [or] should have been apparent’ (22 NYCRR 130-1.1 [c]).” The Court, in Sakow ex rel. Columbia Bagel, Inc. v Columbia Bagel, Inc. (6 Misc 3d 939, 943 [Sup Ct,

    New York County 2004]), held that “[i]n assessing whether to award sanctions, the Court must consider whether the attorney adhered to the standards of a reasonable attorney (Principe v Assay Partners, 154 Misc 2d 702 [Sup Ct, NY County 1992]).” In the instant action, plaintiff’s attorney is responsible for keeping track of whether the mortgage was satisfied. In Sakow at 943, the Court observed that “[a]n attorney cannot safely delegate all duties to others.”

    This Court will examine the conduct of plaintiff’s counsel, in a hearing, pursuant to 22 NYCRR § 130-1.1, to determine if plaintiff’s counsel engaged in frivolous conduct, and to allow plaintiff’s counsel a reasonable opportunity to be heard. (See Mascia v Maresco, 39 AD3d 504 [2d Dept 2007]; Yan v Klein, 35 AD3d 729 [2d Dept 2006]; Greene v Doral Conference Center Associates, 18 AD3d 429 [2d Dept 2005]; Kucker v Kaminsky & Rich, 7 AD3d 39 [2d Dept 2004]).

    Conclusion

    Accordingly, it is
    ORDERED that the motion of plaintiff, WELLS FARGO BANK, N.A. d/b/a AMERICAS SERVICING COMPANY, for a judgment of foreclosure and sale for the premises located at 1917 Bergen Street, Brooklyn, New York (Block 1446, Lot 55, County of Kings), is denied with prejudice; and it is further

    ORDERED, that since plaintiff, WELLS FARGO BANK, N.A. d/b/a AMERICAS SERVICING COMPANY, lacks standing and is no longer the mortgagee in this foreclosure action, the instant complaint, Index No. 12705/78 is dismissed with prejudice; and it is further

    ORDERED, that the Notice of Pendency filed with the Kings County Clerk on April 17, 2007 by the original plaintiff, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee for CREDIT SUISSE FINANCIAL CORPORATION, in an action to foreclose a mortgage for real property located at 1917 Bergen Street, Brooklyn, New York (Block 1446, Lot 55, County of Kings), is cancelled; and it is further

    ORDERED that it appearing that Peter G. Zavatsky, Esq., and Zavatsky, Mendelsohn & Levy, LLP, engaged in “frivolous conduct,” as defined in the Rules of the Chief Administrator, 22 NYCRR § 130-1 (c), and that pursuant to the Rules of the Chief Administrator, 22 NYCRR § 130.1.1 (d), “[a]n award of costs or the imposition of sanctions may be made . . . upon the court’s own initiative, after a reasonable opportunity to be heard,” this Court will conduct a hearing affording Mr. Zavatsky and Zavatsky, Mendelsohn & Levy, LLP, “a reasonable opportunity to be heard,” before me in Part 27, on Friday, April 30, 2010, at 2:30 P.M., in Room 479, 360 Adams Street, Brooklyn, NY 11201; and it is further

    ORDERED, that Ronald D. Bratt, Esq., my Principal Law Clerk, is directed to serve this order by first-class mail, upon Peter G. Zavatsky, Esq., and Zavatsky, Mendelsohn & Levy, LLP, 33 Queens Street, Syosset, NewYork 11791-1670.

    This constitutes the Decision and Order of the Court. [*8]

    ENTER

    ___________________________

    HON. ARTHUR M. SCHACKJ. S. C.

  265. Discovery Tips – A summary and reminder!!

    In the discovery for each link in the securitization chain there must be: a note, a purchase and sale agreement; a transfer receipt; a delivery receipt; a bond if the notes are endorsed in blank; a receipt of funds for the purchase of the note; and a disbursement of funds for the acquisition of the note.

    In the very simple RMBS model, there has to be transfers from the originator to the sponsor, from the sponsor to the depositor, from the depositor to the Trustee of the Trust, and from the Trustee to the Master Document Custodian for the Trust. The MDC would have all of the documents referred to above.

  266. Marcus….

    Yes, the appellate court seems to be the place to be heard….for sure. We had a Judge actually rule against defendant in UD matter.

    m.soliman
    expert.witnss@live.com

    Wells Fargo V. Daniels;
    Matter of Unlawful Detainer
    CA SUP CT County Sac
    Pending Appellate hearing

    M.Soliman
    expert.witness@live.com

  267. foreclosureinfosearch.com
    by m.soliman

    Assignment of Assets

    Through the PAS Agreement, the Depositor intends to cause the issuance and sale of the Mortgage Loan Trust Mortgage Pass-Through Certificates, (the “Certificates”) representing in the aggregate the entire beneficial ownership of the Trust, the primary assets of which are the Mortgage Loans

    Since the lender sold your loan, under FAS 140 accounting rules lost the right to control the asset.

    The orchestrated reengineering efforts of the financial statements are seriously deceptive as they are intentional and overemphasize control and ownership of assets.

    The interpretation is effective for auditing procedures related to transfers of financial assets that are required to be accounted for under FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, as amended by FASB Technical Bulletin No. 01-1, Effective Date for Certain Financial Institutions of Certain Provisions of Statement 140 Related to the Isolation of Transferred Financial Assets.

    The terms of the repurchase agreement state the lender, like you must live up to it obligations. A lender sells the loans as a pool with an unconditional guarantee to make good on the entire amount paid in a single monthly payment.

    Therefore the lender merely needs to repurchase the loan and only then may proceed removing you from the home you want to keep. Instead the lender violates state and federal laws and GAAP accounting rules. These same practices you are bound by as a professional.

    The lender forecloses on your home through a slight of hand and will acquire the home at time of sale.

    Who then foreclosed on you and your wife… a boiler room of kids? Perhaps I know this for a fact!

    1) The lender intends to purchase your home at sale as the highest bid
    2) Will win the bid I assure you as the beneficiary seller and buyer who are all one in the same.
    3) Will transfer the home on a credit bid alleging you authorized the transaction and gave them credit for your balance due.
    4) Transfers are made at 0.00 transfer tax
    5) The sale is done using a non transparent means in violation of Sarbanes Oxley (Enron law)
    6) The sale is conducted “pro tanto” meaning to guarantee the loan of another.

    Did you know your loan mandated you co sign for a market leader lender for a botched securities deal? If the securities are charged off and the loan, your loan, is written down to zero the home is up for grabs sort of speak.

    Only the fee owner can protect that ownership interest. Instead they will sell your home in a staged trustee sale, rigged by a debt collector acting as an impartial trustee.

    They appear to be again, selling to themselves an asset at your expense giving you the authority to credit back to them a compensating balance. That balance is required to reestablish the value of the asset which rests a zero basis.

    All you asked for was a chance at an honest workout and modification. But they cannot as they do not own your loan or right to offer anything. Why can they not be honest? They may not own the loan and therefore cannot prosecute the note. But they will set up the sale to own your home…soon. If I am wrong why not one authority has, lawyer for the opposition and or the FDIC come to the lenders aid.

    Why has the special investigator appointed by a district court magistrate pointed out over 2000 pages what I have said all along…that the sale violates FAS 140 for controlling interest in assets sold. Lehman Bros now holds an industry standard per DEpt of Treasury.

    It’s difficult to comprehend and I admire your lack of willingness to stand aside if you elect not to fight back. But you have the right to also pursue full disclosure, ethical and fair business dealings and adherence to basic accounting rules.

    The fraud is used to take advantage of your fee simple interest in real property.

    m.soliman
    expert.witness@live.com

  268. Hey, WAMU was the bank that ‘funded’ the fraudulent loan ‘our’ loan originator presented them! WAMU is also the bank which provided fraudulent assignments, after the fact, after the loan defaulted.

    My challenge: how to set aside the just granted summary judgment and get Miami’s Judge Sigler to not prejudge these cases, and let discovery (thwarted now almost 2 years) substantiate the extent of WAMU’s involvement in fraud ab initio.

    RSVP
    Allan
    BeMoved@AOL.com

  269. Investigation: WAMU Loan Fraud Was Known

    One of the most disturbing things about the fraud at Washington Mutual was that it was known to exist, rampant in some offices, and not contained. Nearly $1 billion in mortgages were produced at these offices. 42% of these loans contained suspect activity or fraud.

    *Examples of Fraud*

    Reports of fraudulent behavior by WAMU employees include misrepresentation of the borrower’s identification and credit qualifications including:

    + fictitious income,
    + fictitious borrower identity,
    + credit package completely fabricated, and
    + process requirements being completely waived.

  270. Thanks Marcus.

    Excellent suggestion.

    Over a year and a half ago, I filed a Request for Production, to which FDLG did not object. They only MOVED for additional time. Perhaps I should have opposed their motion?

    Before the hearing I had also filed a Motion to Dismiss for FDLG’s failure to fulfuill its burden of proof where a signature was forged, failure to file a bond, and failure to abide by special laws related to trusts doing business in FL.

    In prior written arguments in opposition to FDLG’s MSJ and in oral arguments Wednesday April 7 I reminded Judge Sigler what are the standards for granting a MSJ, that there were at least 10 areas where there were significant issues of fact and law that prevent her from granting one. 3 had to do with fraud in the inducement, and 7 with fraud upon the court.

    Judge Victoria Sigler quite sarcastically turned this into a probate matter and did not wish to be bothered with details of fraudulent assignments when I pointed out patently obvious ones. She had “the original” note and mortgage, and needed nothing else to prejudge this dispute. Never mind that the allonge came in years after the default, was manufactured by unauthorized agents such as Cathy Fetner/C.Fetner, and that it was totally redundant to the original note. Next!

  271. Bob,
    It is more likely that the servicer has or will get a force-placed insurance for full coverage of the collateral. Called the servicer and ask to talk to the insurance department.

    Also if they know that the property is vacant, they will send a so-called “Property Preservation Team” to change your locks.

    marcus@foreclosureProSe.com

  272. Hello,

    I am wondering if anyone can shed some light on the following:

    Foreclosure suit 9-9-10 after a discharged Chap 7 bankruptcy in the State of Florida, in a gated community, with an active HOA. Property taxes are being paid by the Plaintiff. The co-owner is on the mortgage but not the note and lives in another state. I have moved out of the premises and no one is occupying right now, as I am taking care of sick family members in another state. I am carrying insurance still on the property but with limited coverage.

    I am wondering if I need to continue to renew property insurance and if anyone who has gone through similar circumstances would comment.

    Thanks so much to anyone who takes time to contribute any insight.

    Bob

  273. Wayne County, Pennsylvania:
    Motion to Discontinue Praecipe Granted without prejudice
    Wayne County Prothonotary BAC v Leb
    Apr-8, 2010

    McCabe, Weisberg & Conway “The Goliath” of Mid-Atlantic Law Firms who boasts to be the “lenders choice” with over 200 employees and thirty years of litigation experience, was slain today by two Brooklyn New York pro se litigants who had never stepped foot into a courtroom. Armed with little more than a Preliminary Objection to Plaintiff’s Complaint from Florida Defense Team, the pro per litigants, in front of a packed courtroom in Wayne County Pennsylvania, crushed the well armed opposing counsel by simply pointing out that Plaintiff, among other defects, had failed to show they had standing to foreclose on their property.

    In need of foreclosure assistance drop us a line at floridadefenseteam@comcast.net.

  274. Allan,
    You can file a Motion To Set Aside Summary Judgment.
    Did you have any motion to dismiss and discovery pending?
    A summary judgment would be improper if there was ongoing discovery.
    To others, make sure you start you discovery as soon as you receive the complaint. You need to inject seeds of doubt in their position from the beginning.

    marcus@foreclosureProSe.com

  275. Would it be possible to confine Soliman’s gems of erudition to a separate tab on this great resource since they, like kudzu, already fill most of the HOMEOWNERS tab, and like that pernicious vine threaten to block much-needed illumination?

    Seeing as the ATTORNEYS tab has disappeared, why not replace it with WISDOM of SOLIMAN?

    Each Soliman submission is superb theatre, such that one knows not for whom the various internal monologues are meant, never mind the many colorful cultural references.

    Every expert witness must lay a proper foundation for their testimony, and explain terms of art and nomenclature in a manner that an average juror or jurist will readily understand, lest their audience be confounded with what could be mistaken for arcane gibberish.

    I say we honor Soliman for his vast experience, insight and selfless volunteer spirit, as well his quest to help us better understand the business he knows from the inside, with a corner office and tab all his own.

    RSVP

    ALLAN
    BeMoved@AOL.com

  276. MARCUS
    Thank you.

    Foolishly I’ll admit I did not follow through on having a court reporter present, though I know better. I had made inquiries and did not have a backup ready when the first got tied up. The record I assume includes all that is written and appearing in the case folder. Maybe I should introduce a written copy of my oral arguments to the folder.

    FDLG cancelled the previous two MSJ hearings, so I got caught off guard, and have nobody to blame but myself for lowering my vigilance. I appeared by phone on account of being stood up twice after making an effort to get down there.

    What’s the time frame for a notice of appeal? What about a motion for rehearing or reconsideration? What other options can one suggest? Hearing was April 7.

    Feel free to communicate offline, in case their eyes are everywhere.

    Thanks,

    ALLAN
    BeMoved@AOL.com

  277. Allan,
    I HOPE you had a court reporter all this time.
    Please say yes…….:-(

    marcus@foreclosureProSe.com

  278. Allan,
    File your notice of appeal as soon as possible.
    Don’t give up.

    marcus@foreclosureProSe.com

  279. Fraud committed by a banker, a broker, and a candlestick maker. So what? Courts say “Suckers”.

    Anyone who portrays a lender as a thief and then tries to get a house for free needs to appraise their glass house; or cease throwing stones.

    The loan origination and transfers of the asset into trust protection for tax purposes by an SEC registrant will survive attack. Show the Judge your PSA, Indenture reps and warranties and childhood diary for consideration.

    Don King said it best about the pontification and unification of the manifestation in support of modification is subject to the dawning of the Age of Aquarius. Add that you’re pleading!

    The time spent by slime attacking this site and its message or discounting my years of work and research while participating in this field of study had only better served themselves by reading what I have offered.

    It’s getting harder to keep coming back to help.
    So here we go again . . .

    1.The servicing role has pursued a plan for recovering assets for its client who “IF” the Beneficiary maybe so entitled.
    2.The homes are recovered under each States authority by establishing a fair and open bid price under the powers provided to a “Debt Collector”
    3.The beneficiary is represented by the successors and assigns by merger or Fed assistance and authority bestowed upon a nominal interest.
    4.The nominee is alleged to be authorized to appoint a debtor collector who is the alleged successor and is assigned its role by further appointment of an agent for the original trustee.
    5.That assignment represented by an agent is often by assignment of another agent endorsed by a notary for the nominal interest – get it! (Stop, please is something is wrong here?)
    6.The transfer of the property at sale is for “At Then” consideration. (Please I cannot take much more)
    7.The sale goes down where the bid price is set by the “Seller”, who is the “Buyer” is one and the same with the “Beneficiary” who is the seller and the buyer at sale. (Right!!!!!!!!!!!!!)
    8.The sale is for lawful US currency and or “Credit Bid” as in blank or post dated check (Someone stop him…please ….stop him, stop hi now…please)
    9.The credit is real backed by the full faith and promise of deceitful act causing you to tender your home for which security is lost and only a moral obligation remains.
    10. These transfers are done “Pro Tanta” as foreclosure sales and are enforced under an old doctrine of debtors court and making the family and friends of the debtor pay up as if cosigners.

    You think I am kidding and wasting your time telling you this. You think I endured the hell I have from select readers bent of hurting my reputation or because I want to waste more time I do not have.

    This said while many good people are left confused from these random attacks on my message, my integrity and desire to give back everything I own and more while investing in correcting this cataclysmic crisis.

    Do your best if you want to argue a RESPA audit and believe your phone is about to ring with a loving offer to modify your loan. Be on guard and question what you read by whoever provides you the alternative for which the courts have said this about the fraud amongst the parties . . .

    “Those who are ignorant to fraud and suffered loss shall leave the court as they entered; ignorant and suffering loss”.

    M.Soliman
    expert.witness@live.com

  280. Allan,
    I am soooo very sorry my friend. It is so very scary to see what is happening to ALL in FL, but, especially to you.
    I am also on this journey of TRUTH and already in a NON situation.
    We Will Get It Right
    I Will Do Anything To Win At This Game Of THEIRS
    To No Avail I Shall Give It 100%
    Again, You Are In My Thoughts

  281. Well, it has happened to a self-described foreclosure defense activist this April 7. This Pro Se low-lying fruit was too irresistible to FDLG.

    Despite that my late mother’s signatures were forged and falsely witnessed in a conspiracy to defraud – set up by a known defrauding real estate agent, despite that I got NOTHING from FDLG in response to my discovery requests, Judge Sigler could see nothing beyond ‘where did the money go?” never mind any nuanced references to USBank NA being the improper party to enforce the void ab initio mortgage, before she lowered the gavel to rubber-stamp the latest notch in her rocket docket.

    ALL suggestions and help WELCOME. I may have lost THIS battle, but NO WAY will I lose the WAR to the likes of FDLG! No way will I let $200K in equity get stolen like that!

    Thanks,
    ALLAN
    Miami & Cambridge

  282. IMPORTANT: Floridians–there is a rally scheduled later this month in Tallahassee to protest the non-judicial foreclosure bill–the bill takes away our rights for due process of law–more information is on this blog– http://mattweidnerlaw.com/blog/

  283. Foreclosure in The Florida Legislature- No One is Safe While The Legislature Is In Session!

    Judge Jennifer Bailey testified before the Florida House of Representatives regarding the Administrative Order issued by the Florida Supreme Court which mandated mediation for foreclosures in Florida.

    Attached here is a link to a podcast of her testimony. The testimony regarding these issues starts about midway through the podcast. What is most troubling about this podcast is the hostility toward the new Supreme Court Order faces before the legislature. Of concern, the legislators were uniformly hostile to the authority of the Florida Supreme Court to issue the Order which mandated mediation. After Judge Bailey testified, Staff appears to testify regarding their “concerns” about the Order. There were several comments regarding potential legislative efforts to challenge the procedural mechanism the Supreme Court used to develop the program.

    Next the Florida Bankers testify and develop their arguments against the bill along with representatives from the Florida Community Associations and testimony from a foreclosure mill.

    Unfortunately no testimony from Foreclosure Defense or the Foreclosure Fraud Fighters.

    foreclosurebillofrights

    foreclosurerevenueestimates

    Attached is also Senate Bill 1778 the Homeowner Bill of Rights sponsored by Senator Aronberg who is currently running for Florida Attorney General.

    Key will be to make sure all elected officials know that non-judicial foreclosure legislation strips consumers of their access to courts is fundamentally anti-consumer and pro-fraud/pro-banker.

    Foreclosure
    Jennifer D. Bailey, Circuit Court Judge (State Employee) – Information Only
    Florida Supreme Court Task Force on Residential Mortgage Foreclosures
    73 W. Flagler Street, #1307
    Miami Florida 33130
    Phone: 305-349-7152

    Foreclosure Mediation
    Anthony DiMarco (Lobbyist) – Information Only
    Florida Bankers Association, EVP
    1001 Thomasville Road
    Tallahassee Florida 32303
    Phone: 850-224-2265

    Supreme Court Administative Order Re: Foreclosures
    David Muller, Co-Executive Director (Lobbyist) – Information Only
    Community Association Leadership Lobby
    6230 University Drive, Suite 204
    Sarasota Florida
    Phone: 941-366-8826

    Who will fight this ;

    Supreme Court Administrative Order Re: Foreclosure Mandatory Mediations
    Marc Ben-Ezra – Opponent
    Ben-Ezra & Katz, P.A.
    2901 Stirling Road, Suite 300
    Ft. Lauderdale Florida 33312
    Phone: 305-770-4100

    http://mattweidnerlaw.com/blog/2010/04/foreclosure-in-the-florida-legislature-no-one-is-safe-while-the-legislature-is-in-session/

  284. IMPORTANT–Foridians–please help fight the non-judicial foreclosure bill HB 1523 –this bill (cloacked as a Homeowner Relief bill is flying through the legislature–go to myfloridahouse.gov — Florida is the state that could make a difference for the entire country, so to lose this puts the entire country in jeopardy–we who are fighting the foreclosures are making waves–this bill would mean that to fight the foreclosure would cost the homeowner $1995 in court fees plus attorney fees(upwards of $2000–) and then a judge has to sign a temporary restraining order to stop the sale (which most judges don’t do)–please please call, call, call all representatives.

  285. Truth,

    Your picking up on something that has value as a defective instrument and for an argument to rescind.

    I think this is far more valuable as evidence to support fraud by showing the proof they moved the asset to and from one entity to another. It’s musical chairs with respect to enforcing an “interest” in anticipation of a recovery versus having standing when prosecuting a lenders rights in a recovery.

    Problems For Lender:
    1)Conceal delinquency
    2) Avoid increasing reserves
    3) Mask high leverage ratios
    4) Dramatically increase earnings

    Violations of FAS 140 and “deceptive business practices” Trailing assignments for loans transferred within 90 days of your loans settlement make absolutely no logic.

    Reckless abandon by grown boys under an SEC private placement are so serious a allegation to deal with. Its also a reality the courts will show a willingness to hear and see claims for allowing these claims to stick.

    Last week we have the special examiner appointed by the Government under the district courts authority hearing the Lehman Bros matter. Now the treasury department (ouch) have jumped in to expand the investigation. I said that the Lehman Bros “cooking of books” was the blue print the rest of the sector was following.

    When a judge asks that you keep Wall Street out of Main Street. . . let the court know that everything done to avoid ensuring the borrowers rights are so to satisfy the greater exposure . . .SEC vs. RESPA

    M.Soliman
    expert.witness@live.com

  286. Listen up florida for those of you in florida
    March 25, 2010
    11th Curuit Court – Judge Simons
    Denied Motion for Summary Judgement
    based on material fact as to standing
    Wells Fargo – as trustee….Cirigliano Case!!
    Get the help you need fight fight fight!!!

  287. Soliman NOBODY’S Sub of Trustee has been recorded. once I noticed this despite and despite the fact that there have been 2 seperate NODs and 2 seperate NOTSs and 2 seperate TDUSs but no SOPs not even 1, I called my recorder’s office and asked him if there was a mistake or something,
    and they(the guy working at the OC Recorder’s Office) said “well that can’t be right maybe you just missed it or something” I said “no I’m pretty sure it has not been recorded even though there has been a NOD and NOTS has been recorded, I’m looking at the screen right now”(for OC you can check online) then he said “no I’m pretty sure that they’re required to record a Substitution of Trustee first, let me just look it up while I’m on the phone with you”. Sure enough, nope no recording of the Sub of Trustee. also with practically all “assignments” in CA they file a TDUS assign the loan to themselves then file a Notice of Rescission of the Sale back to themselves(you should have already known that by now).

    Soliman also if you’ll notice a lot of the documents recorded more particularily NODs and NOTSs right above the recorder’s stamp with the barcode it will say “This Document was electronically recorded by
    LSI TITLE COMPANY”

  288. The protocols(well some of them) of Zion that members of Congress and other people in our Government follow. for more info go to this link http://powerofno.org/books/nwo/9495-the-protocols-of-zion-in-modern-english-

    “It is enough for them to know that we are merciless for any disobedience to cease.

    The principle of balancing accounts (particularly the repayment of debts) is strongly ingrained and one which we will take advantage of. We will use this principle as a means to bring all governments under the control of our super-government.

    We Shall End Liberty
    25. Far back in ancient times we were the first to stand among crowds of people and cry out the words “Liberty, Equality, Fraternity”. The people fell for our bait. They picked up those words and started repeating them parrot-like throughout the world. As a result they have taken away the well-being of the world and the true freedom of the individual, which was formerly well protected from mob pressure.

    The so-called wise men of the Goyim, the intellectuals, could not make anything out of these words. They just cannot see that in nature there is no equality or freedom; that nature herself has established inequality of minds, characters and capacities. They never stopped to consider that the mob is blind thing, and as such, can only elect leaders that must be as blind as the mob itself. And even if the mob does manage to find someone intelligent, that person wouldn’t understand politics, as pointed out earlier. Goyim don’t take any of this into consideration.”

  289. ANOTHER EPISODE OF FRAUD SQUAD!

    Re: Provisions of Section 2924b. /
    Su: The Notice of Default NOD
    ——————————–
    Assume the NOD below
    ——————————–
    Requested by:
    “ABC Trustee”

    MAIL TO
    “ABC Trustee”
    ———————————–
    (look in the upper LEFT hand corner!)
    ———————————–
    If ABC is shown under ” Requested By” on the
    NOD – it is alleged to be substituted in by the lender.

    If Substituted as Trustee and the instrument is executed, (signed) but not recorded, prior to the recording of the NOD [notice of default]; Then
    1. beneficiary or beneficiaries or their authorized agents must prove they mailed the notice of the substitution prior to that date , or
    a. have done so concurrently with the recording [date] thereof,
    b. It is to be mailed to all persons to whom a copy of the notice of default would be required to be mailed
    c. comply according to the provisions of Section 2924b.
    d. An affidavit shall be attached to the substitution that notice has been given to those persons and in the manner required by this subdivision.
    e.. An affidavit shall be filed on record for proof , and be attached to the substitution that notice has been given in the manner required by this subdivision.
    —————————————————————
    That is the California civil code. Or, how about this
    as an alternative . . .

    1. White out the date [preprinted on the substitution]
    2. handwrite a date to match the NOD recording dt.
    3. Then prepare and back date a phony affidavit

    Oh, yeah! Remember to scribble your name with BIG INITIALS only; like a moron. Got it! Done!

    Oh Oh or try this…..if you want to be ethical . . . “buy a rubber stamp with an attorneys name or make up a Title Company name.” Kinkos you know!

    Then stamp it after the fact above in the “Requested By” upper right left side corner. You know what I mean by rubber stamp.It’s what every attorney does after law school right? They buy a Pentium XX Monolith computer that’s state of the art, an Apple “I Phone”, GPS too get you from here to Paris, an Apple Bad Boy Lap Top and ahhh ……a rubber stamp /.one with their name on it ! (Yeah Right!)

    S Shafer
    ———————————————————————-
    The county recorders have to get real and have some minimum threshold of integrity for recorded documents. I once asked a recording office supervisor about the issue….he said i would have to take to their attorney as he could not say anything more to me.

    M.Soliman

  290. QUESTION – GMAC’s failure to demonstrated that it was a holder of the note under under §47-3301 of the Arizona statute , if challenged is based upon a claim brought for an IMPROPER ALLONGE

    I somewhat struggle where a competent jurisdiction hearing arguments for a missing endorsement in denying the obvious parties their rightful assignment as HDC. If a lost note affidavit is not satisfactory for the courts curiosity [lost note], the same challenge emerges woefully irrelevant over a missing endorsement.

    Its a not a difficult discovery, and may in fact be something required by another more curious court.

    My point is evidencing ownership for an aged receivable subject to challenges in a default will benefit from meerly evidencing a certified copy of the endorsement . Perhaps an affidavit prepared by the appropriate person is no more or less sufficient, or further supported if accompanied by notary signature log.

    No court at this juncture in time is willing to see the value of the lost alllonge argument as anything other than a procedural error caused by negligence. The argument is inconsequential towards collateral and likely seen as caused by third party E&O charged with the custodial function.

    The procuring source of the capital from party who wired to settle the transaction had to originate via a bank wire . Therein ownership of the asset early on is verifiable by wire or ABA records obtained from the OCC. The fed office may however have an arduous task of verifying your claims in discovery.

    And remember, the assets are registered under an SEC filing and UCC – although they may be hidden on a companies balance sheet. …”Company Balance Sheet!”

    COMMENT:- Charney said (from a recent article) the critical error was that the originating lenders systematically pledged the loans, and didn’t actually transfer them to the trusts that are supposed to hold them and issue the securities.

    ANSWER – If this statement is true then the lender maintained the right to foreclose from the get go under a hypothetication or leveraged debt business structure. The statement also fuels the argument for parties operating out of trust – at a cost of losing all preferential tax treatment and generous accounting entitlements.

    Loss of GAAP strained accounting rules constitute a serious challenge to a delisted REMIC or Mortgage Backed Asset Trust and for the trustee; if Charney is correct.

    These rules allow for derecognition, transfers into the trust otherwise viewed as less than arms. A breech of compliance with FAS 140 and a significant material misrepresentation of facts published in 8k and 10 k public filings.

    Evidence the registrants were not in compliance with a depositors duties and role is devastating. Neglectful actions that fail to deliver the asset as represented in a private placement is hard to fathom.

    It would fuel a new wave of class suits and surely compound the already stressful domestic economic landscape .

    m.soliman
    expert.witess@live.com

  291. GMAC and old friend Greenpoint and old friend MERS;
    Get the Courthouse door slammed on them. AZ BK Court
    says lack of standing. But Ohh, THE DETAILS are even more interesting!

    A BAD MOON RISING.

    ==========================================

    The Home Equity Theft Reporter:

    GMAC’s failure to demonstrated that it was a holder of the note under under §47-3301 of the Arizona statute …. IMPROPER ALLONGE

    The MERS assignment of the deed of trust (ie. mortgage) did not provide GMAC with standing
    JUDGE: “a number of cases have held that such language confers no economic benefit on MERS”

    And *this* makes me wonder about the BAD MOON I saw the other night……..
    GMAC was unable to establish that it was the servicer of the promissory note (the evidence in this case did not demonstrate that the promissory note and deed of trust were properly transferred to the “special purpose” securitization trust (“Trust”) holding the pool of loans, and, “without that evidence, there is no demonstration that GMAC is the servicer of the Note.” In light of this, the court stated that “it is immaterial that GMAC is the servicer for the Trust.”).

    ==========================================

    “ANONYMOUS” and “Jan Van Eck” the court SEEMS to be kicking GMAC TO THE CURB EVEN AS THE LOAN’S SERVICER? Interesting reading of the Judges point of view below. The BLADE does cut BOTH ways. The Homeowner takes a few HITS also.

    ==========================================

    IN RE WEISBAND

    In re: BARRY WEISBAND, Chapter 13, Debtor.

    Case No. 4:09-bk-05175-EWH.

    United States Bankruptcy Court, D. Arizona.

    March 29, 2010.

    Barry Weisband, Tucson, AZ, Ronald Ryan, Ronald Ryan, P.C., Tucson, AZ, Attorney for Debtor.

    MEMORANDUM DECISION

    EILEEN W. HOLLOWELL, Bankruptcy Judge

    I. INTRODUCTION

    The debtor, Barry Weisband (“Debtor”), has challenged the standing of creditor, GMAC Mortgage, LLC (“GMAC”), to seek stay relief on his residence. After reviewing the documents provided by GMAC and conducting an evidentiary hearing, the court concludes that GMAC, the alleged servicer of the Debtor’s home loan, lacks standing to seek stay relief. The reasons for this conclusion are explained in the balance of this decision.

    II. FACTUAL AND PROCEDURAL HISTORY

    A. Creation of Debtor’s Note And Asserted Subsequent Transfers

    On or about October 6, 2006, the Debtor executed and delivered to GreenPoint Mortgage Funding, Inc. (“GreenPoint”) an adjustable rate promissory note in the principal sum of $540,000 (“Note”) secured by a Deed of Trust (“DOT”) on real property located at 5424 East Placita Apan, Tucson, Arizona 85718 (“Property”).

    On a separate piece of paper, GreenPoint endorsed the Note to GMAC (“Endorsement”). The Endorsement is undated. The DOT was signed by the Debtor on October 9, 2006, and recorded on October 13, 2006. The DOT lists GreenPoint as the lender, and Mortgage Electronic Registration Systems, Inc. (“MERS”) as the beneficiary of the DOT “solely as nominee for [GreenPoint], its successors and assigns.”

    Approximately five months before the creation of the Note and DOT, on April 10, 2006, GreenPoint entered into a Flow Interim Servicing Agreement (“FISA”) (Exhibit D)[ 1 ] with Lehman Capital, a division of Lehman Brothers Holdings, Inc. (collectively “Lehman”), pursuant to which Lehman agreed to purchase conventional, residential, fixed and adjustable rate first and second lien mortgage loans from GreenPoint. Under the FISA, GreenPoint agreed to service the mortgage loans it sold to Lehman. According to GMAC, GreenPoint transferred the Note and DOT to Lehman under the FISA.

    On November 1, 2006, Lehman entered into a Mortgage Loan Sale and Assignment Agreement (“MLSAA”) with Structured Asset Securities Corporation (“SASC”) (Exhibit E). Under that agreement, Lehman transferred a number of the mortgage loans it acquired under the FISA to SASC. GMAC claims that the Note was one of the mortgage loans transferred to SASC. SASC created a trust to hold the transferred mortgages — GreenPoint Mortgage Funding Trust (“Trust”). The MLSAA also transferred the right to receive principal and interest payments under the transferred mortgage loans from Lehman to the Trust.

    Also, on November 1, 2006, SASC entered into a Trust Agreement (Exhibit F) with Aurora Loan Services (“Aurora”) as the master servicer, and U.S. Bank National Association (“U.S. Bank”) as the trustee. A Reconstituted Servicing Agreement (Exhibit G) was executed the same day, which provided that GreenPoint would continue to service the mortgages transferred to the Trust under the MLSAA, but that the Trust could change servicers at any time. Also, according to GMAC, on November 1, 2006, GMAC, Lehman, and Aurora entered into a Securitization Servicing Agreement (“SSA”) (Exhibit H), pursuant to which GMAC would service the loans transferred to the Trust. GMAC claims that under the SSA it is the current servicer of the Note and DOT.

    Thus, according to GMAC, as of November 1, 2006, the Note and DOT had been transferred to the Trust, with SASC as the Trustor, U.S. Bank as the Trustee, Aurora as the master servicer, and GMAC as the sub-servicer. GreenPoint went out of business in 2007. According to GMAC, it remains the sub-servicer of the Note, and that is its only financial interest in the Note and DOT. (Transcript Nov. 10, 2009, pp. 44, 47, 75.)

    B. Bankruptcy Events

    As of March 1, 2009, the Debtor was in default of his obligations under the Note. Debtor filed his petition for relief under Chapter 13 of the Bankruptcy Code on March 19, 2009. On May 16, 2009, GMAC filed a proof of claim (“POC”), which attached the Note and DOT. The Endorsement from GreenPoint to GMAC was not attached to GMAC’s proof of claim. On May 12, 2009, MERS, as nominee for GreenPoint, assigned its interest in the DOT to GMAC (“MERS Assignment”). The MERS Assignment was recorded on July 16, 2009.

    GMAC filed a Motion for Relief from Stay (“Motion”) on May 29, 2009, on the grounds that the Debtor had no equity in the Property and the Property was not necessary for an effective reorganization. The Motion also requested adequate protection payments to protect GMAC’s alleged interest in the Property. GMAC attached the Note with the Endorsement and DOT as exhibits to the Motion.

    The Debtor filed a response challenging GMAC’s standing to seek relief from stay. After various discovery disputes, GMAC sent a letter dated September 17, 2009, to the Debtor which purported to explain the various transfers of the Note and the DOT. (Docket #90). The letter explained that GreenPoint transferred the “subject loan” to Lehman under the FISA, that Lehman sold the “subject loan” to SASC under the MLSAA, that SASC, Aurora Loan Services, and U.S. National Bank entered into a trust agreement, which created the Trust and made Aurora the master servicer for the “subject loan,” and, that GMAC was the servicer of the “subject loan” under the SSA. According to GMAC, its status as servicer, along with the Endorsement of the Note to GMAC and the assignment of the DOT from MERS to GMAC, demonstrated that it had standing to bring the Motion.

    On November 10, 2009, the Court conducted an evidentiary hearing on the Motion. GMAC offered the original Note at the hearing and admitted into evidence a copy of the Note, DOT, copies of the FISA, MLSAA, Trust Agreement, the Reconstituted Servicing Agreement and the SSA. However, GMAC did not offer any documents demonstrating how the Note and DOT were conveyed by GreenPoint to the FISA. No document was offered demonstrating how the Note and DOT were conveyed from the FISA to the MLSAA or from the MLSAA into the Trust. Schedule A-1 of the MLSAA, where the transferred mortgages presumably would have been listed, only has the words “Intentionally Omitted” on it, and Schedule A-2 has the word “None.” (Exhibit F, pp. 19-20). Similarly, there is no evidence that the Note and DOT are subject to the SSA. Exhibit A to the SSA, titled “Mortgage Loan Schedule,” is blank. At the conclusion of the hearing, this Court ordered the Debtor to begin making adequate protection payments commencing on December 1, 2009 to the Chapter 13 Trustee. The Court further ordered GMAC and the Debtor to negotiate the amount of the adequate protection payments. When the parties were unable to reach agreement, the Court set the amount of the monthly payments at $1,000.

    III. ISSUE

    Does GMAC have standing to bring the Motion?

    IV. JURISDICTIONAL STATEMENT

    Jurisdiction is proper under 28 U.S.C. §§ 1334(a) and 157(b)(2)(G).

    V. DISCUSSION

    A. Introduction

    Section 362(a) of the Bankruptcy Code provides that the filing of a bankruptcy petition operates as a stay of collection and enforcement actions. 11 U.S.C. § 362(a). The purpose of the automatic stay is to provide debtors with “protection against hungry creditors” and to assure creditors that the debtor’s other creditors are not “racing to various courthouses to pursue independent remedies to drain the debtor’s assets.” In re Tippett, 542 F.3d 684, 689-90 (9th Cir. 2008) (citing Dean v. Trans World Airlines, Inc., 72 F.3d 754, 755-56 (9th Cir. 1995)); see also In re Johnston, 321 B.R. 262, 2737-4 (D. Ariz. 2005). Despite the broad protection the stay affords, it is not without limits. Section 362(d) allows the court, upon request of a “party in interest,” to grant relief from the stay, “such as terminating, annulling, modifying, or conditioning such stay.” 11 U.S.C. § 362(d)(1). The court may grant relief “for cause, including the lack of adequate protection.” Id. The court may also grant relief from the stay with respect to specific property of the estate if the debtor lacks equity in the property and the property is not necessary to an effective reorganization. 11 U.S.C. § 362(d)(2).

    Any party affected by the stay should be entitled to seek relief. 3 COLLIER’S ON BANKRUPTCY ¶ 362.07[2] (Henry Somers & Alan Resnick, eds. 15th ed., rev. 2009); Matter of Brown Transp. Truckload, Inc., 118 B.R. 889, 893 (Bankr. N.D. Ga. 1990); In re Vieland, 41 B.R. 134, 138 (Bankr. N.D. Ohio 1984)). Relief from stay hearings are limited in scope — the validity of underlying claims is not litigated. In re Johnson, 756 F.2d 738, 740 (9th Cir. 1985). As one court has noted, “[s]tay relief hearings do not involve a full adjudication on the merits of claims, defenses or counterclaims, but simply a determination as to whether a creditor has a colorable claim.” In re Emrich, 2009 WL 3816174, at *1 (Bankr. N.D. Cal. 2009).

    Nevertheless, in order to establish a colorable claim, a movant for relief from stay bears the burden of proof that it has standing to bring the motion. In re Wilhelm, 407 B.R. 392, 400 (Bankr. D. Idaho 2009). The issue of standing involves both “constitutional limitations on federal court jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Constitutional standing concerns whether the plaintiff’s personal stake in the lawsuit is sufficient to have a “case or controversy” to which the federal judicial power may extend under Article III. Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992); Pershing Park Villas Homeowners Ass’n v. United Pac. Ins. Co., 219 F.3d 895, 899 (9th Cir. 2000).

    Additionally, the “prudential doctrine of standing has come to encompass several judicially self-imposed limits on the exercise of federal jurisdiction.'” Pershing Park Villas, 219 F.3d at 899. Such limits are the prohibition on third-party standing and the requirement that suits be maintained by the real party in interest. See Warth v. Seldin, 422 U.S. at 498-99; Gilmartin v. City of Tucson, 2006 WL 5917165, at *4 (D. Ariz. 2006). Thus, prudential standing requires the plaintiff to assert its own claims rather than the claims of another. The requirements of Fed. R. Civ. P. 17, made applicable in stay relief motions by Rule 9014, “generally falls within the prudential standing doctrine.” In re Wilhelm, 407 B.R. at 398.

    B. GMAC’s Standing

    GMAC advances three different arguments in support of its claim to be a “party in interest” with standing to seek relief from stay. First, GMAC asserts it has standing because the Note was endorsed to GMAC and GMAC has physical possession of the Note. Second, GMAC asserts that by virtue of the MERS Assignment, it is a beneficiary of the DOT and entitled to enforce and foreclose the DOT under Arizona law. Third, GMAC asserts it has standing because it is the servicer of the Note. The court addresses each of GMAC’s claims in turn.

    1. GMAC Has Not Demonstrated That It Is A Holder Of The Note

    If GMAC is the holder of the Note, GMAC would be a party injured by the Debtor’s failure to pay it, thereby satisfying the constitutional standing requirement. GMAC would also be the real party in interest under Fed. R. Civ. P. 17 because under ARIZ. REV. STAT. (“A.R.S.’) § 47-3301, the holder of a note has the right to enforce it.[ 2 ] However, as discussed below, GMAC did not prove it is the holder of the Note.

    Under Arizona law, a holder is defined as “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” A.R.S. § 47-1201(B)(21)(a).[ 3 ] GMAC has failed to demonstrate that it is the holder of the Note because, while it was in possession of the Note at the evidentiary hearing, it failed to demonstrate that the Note is properly payable to GMAC. A special endorsement to GMAC was admitted into evidence with the Note. However, for the Endorsement to constitute part of the Note, it must be on “a paper affixed to the instrument.” A.R.S. § 47-3204; see also In re Nash, 49 B.R. 254, 261 (Bankr. D. Ariz. 1985). Here, the evidence did not demonstrate that the Endorsement was affixed to the Note. The Endorsement is on a separate sheet of paper; there was no evidence that it was stapled or otherwise attached to the rest of the Note. Furthermore, when GMAC filed its proof of claim, the Endorsement was not included, which is a further indication that the allonge containing the Endorsement was not affixed to the Note.[ 4 ]

    In Adams v. Madison Realty & Dev., Inc., 853 F.2d 163 (3d Cir. 1988), the plaintiffs executed promissory notes which, after a series of transfers, came into the defendant’s possession. At issue was whether the defendant was the rightful owner of the notes. The court held that the defendant was not entitled to holder in due course status because the endorsements failed to meet the UCC’s fixation requirement. Id. at 168-69. The court relied on UCC section 3-202(2) [A.R.S. § 47-3204]: “An indorsement must be written by or on behalf of the holder and on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” Id. at 165. Since the endorsement page, indicating that the defendant was the holder of the note, was not attached to the note, the court found that the note had not been properly negotiated. Id. at 166-67. Thus, ownership of the note never transferred to the defendant. Applying that principle to the facts here, GMAC did not become a holder of the Note due to the improperly affixed special endorsement.

    While the bankruptcy court in In re Nash, 49 B.R. 254 (Bankr. D. Ariz. 1985) found that holder in due course status existed even though an allonge was not properly affixed to an instrument, the court based its determination on the clear intention that the note assignment be physically attached because: (1) the assignment was signed and notarized the same day as the trust deed; (2) the assignment specifically referenced the escrow number; (3) the assignment identified the original note holder; and (4) the assignment recited that the note was to be attached to the assignment. Id. at 261.

    In this case, however, there is no proof that the allonge containing the special endorsement from GreenPoint to GMAC was executed at or near the time the Note was executed. Furthermore, the Endorsement does not have any identifying numbers on it, such as an account number or an escrow number, nor does it reference the Note in any way. There is simply no indication that the allonge was appropriately affixed to the Note, in contradiction with the mandates of A.R.S. § 47-3204. Thus, there is no basis in this case to depart from the general rule that an endorsement on an allonge must be affixed to the instrument to be valid.

    GMAC cannot overcome the problems with the unaffixed Endorsement by its physical possession of the Note because the Note was not endorsed in blank and, even if it was, the problem of the unaffixed endorsement would remain.[ 5 ] As a result, because GMAC failed to meet its burden of demonstrating that the Endorsement was proper, it has failed to demonstrate that it is the holder of the Note.

    2. The MERS Assignment Of The DOT Did Not Provide GMAC With Standing

    GMAC argues that it has standing to bring the Motion as the assignee of MERS.[ 6 ] In this case, MERS is named in the DOT as a beneficiary, solely as the “nominee” of GreenPoint, holding only “legal title” to the interests granted to GreenPoint under the DOT. A number of cases have held that such language confers no economic benefit on MERS. See, e.g., In re Sheridan, 2009 WL 631355, *4 (Bankr. D. Idaho 2009); In re Mitchell, 2009 WL 1044368, *3-4 (Bankr. D. Nev. 2009); In re Jacobson, 402 B.R. 359, 367 (Bankr. W.D. Wash. 2009). As noted by the Sheridan court, MERS “collect[s] no money from [d]ebtors under the [n]ote, nor will it realize the value of the [p]roperty through foreclosure of the [d]eed of [t]rust in the event the [n]ote is not paid.” 2009 WL 631355 at *4.

    Because MERS has no financial interest in the Note, it will suffer no injury if the Note is not paid and will realize no benefit if the DOT is foreclosed. Accordingly, MERS cannot satisfy the requirements of constitutional standing. GMAC, as MERS’ assignee of the DOT, “stands in the shoes” of the assignor, taking only those rights and remedies the assignor would have had. Hunnicutt Constr., Inc. v. Stewart Title & Trust of Tucson, Trust No. 3496, 187 Ariz. 301, 304 (Ct. App. 1996) citing Van Waters & Rogers v. Interchange Res., Inc., 14 Ariz. App. 414, 417 (1971); In re Boyajian, 367 B.R. 138, 145 (9th Cir. BAP 2007). Because GMAC is MERS’ assignee, it cannot satisfy the requirements of constitutional standing either.[ 7 ]

    3. GMAC Does Not Have Standing As The Servicer Of The Note

    (a) Servicer’s Right To Collect Fees For Securitized Mortgages

    Securitization of residential mortgages is “the process of aggregating a large number of notes secured by deeds of trust in what is called a mortgage pool, and then selling security interests in that pool of mortgages.” Kurt Eggert, Held Up In Due Course: Predatory Lending, Securitization, and the Holder in Due Course Doctrine, 35 CREIGHTON L. REV. 503, 536 (2002). The process begins with a borrower negotiating with a mortgage broker for the terms of the loan. Then, the mortgage broker either originates the loan in its own name or in the name of another entity, which presumably provides the money for the loan. Almost immediately, the broker transfers the loan to the funding entity. “This lender quickly sells the loan to a different financial entity, which pools the loan together with a host of other loans in a mortgage pool.” Id. at 538.

    The assignee then transfers the mortgages in the pool to another entity, which in turn transfers the loans to a special purpose vehicle (“SPV”,) whose sole role is to hold the pool of mortgages. Id. at 539. “The transfer to the special purpose trust must constitute a true sale, so that the party transferring the assets reduces its potential liability on the loans and exchanges the fairly illiquid loans for much more liquid cash.” Id. at 542. Next, the SPV issues securities which the assignee sells to investors. Id. at 539.

    Once the securities have been sold, the SPV is not actively involved. It “does not directly collect payments from the homeowners whose notes and deeds of trust are held by the SPV.” Id. at 544. Rather, servicers collect the principal and interest payments on behalf of the SPV. Id. Fees are associated with the servicing of loans in the pool. Therefore, GMAC would have constitutional standing if it is the servicer for the Note and DOT because it would suffer concrete injury by not being able to collect its servicing fees.[ 8 ] In re O’Kelley, 420 B.R. 18, 23 (D. Haw. 2009). In this case, however, the evidence does not demonstrate that the Note and DOT were transferred to the Trust, and, without that evidence, there is no demonstration that GMAC is the servicer of the Note.

    (b) There Is Insufficient Evidence That The Note Was Sold To Lehman And Became Part Of The Trust

    When the Debtor executed the Note and DOT, GreenPoint was the original holder of the Note and the economic beneficiary of the DOT. GreenPoint, allegedly, transferred the Note to Lehman pursuant to the FISA. However, the term “mortgage loans” is not defined in the FISA and GMAC’s documents regarding the securitization of the Note and DOT provide no evidence of actual transfers of the Note and DOT to either the FISA or the Trust. Because such transfers must be “true sales,” they must be properly documented to be effective. Thus, to use an overused term, GMAC has failed “to connect the dots” to demonstrate that the Note and DOT were securitized. Accordingly, it is immaterial that GMAC is the servicer for the Trust.

    C. Debtor’s Other Arguments

    1. Securities Investors Are Not The Only Individuals Who Can Satisfy Standing Requirements When Dealing With A 362 Motion on a “Securitized” Mortgage

    The Debtor argues that, in an asset securitization scheme, only the securities investors have standing to seek stay relief because they are the only parties with a financial interest in the securitized notes. However, because the Debtor executed the Note and received consideration (which he used to purchase the house), the contract is enforceable regardless of who provided the funding. In other words, the fact that the funds for a borrower’s loan are supplied by someone other than the loan originator, does not invalidate the loan or restrict enforcement of the loan contract to the parties who funded the loan. A number of cases and treatises recognize that consideration for a contract, including a promissory note, can be provided by a third party. See, e.g., DCM Ltd. P’ship v. Wang, 555 F. Supp. 2d 808, 817 (E.D. Mich. 2008); Buffalo County v. Richards, 212 Neb. 826, 828-29 (Neb. 1982); 3 WILLISTON ON CONTRACTS § 7:20 (Richard A. Lord, 4th ed. 2009); RESTATEMENT (SECOND) OF CONTRACTS § 71(4) (2009).

    Notes are regularly assigned and the assignment does not change the nature of the contract. The assignee merely steps into the shoes of the assignor. In re Boyajian, 367 B.R. 138, 145 (9th Cir. BAP 2007); In re Trejos, 374 B.R. 210, 215 (9th Cir. BAP 2007). No additional consideration is required, as opposed to a novation which creates a new obligation. Id. at 216-17 citing RESTATEMENT (SECOND) OF CONTRACTS § 280, cmt. e. Therefore, the Debtor’s argument that the Note is unenforceable because the funder of the Note was not the payee fails. The Note is still valid and can be enforced by the party who has the right to enforce it under applicable Arizona law.

    2. Proof Of A Note’s Entire Chain Of Ownership Is Not Necessary For Stay Relief

    A movant for stay relief need only present evidence sufficient to present a colorable claim — not every piece of evidence that would be required to prove the right to foreclose under a state law judicial foreclosure proceeding is necessary. In re Emrich, 2009 WL 3816174, at *1 (Bankr. N.D. Cal. 2009). Accordingly, not every movant for relief from stay has to provide a complete chain of a note’s assignment to obtain relief.

    Arizona’s deed of trust statute does not require a beneficiary of a deed of trust to produce the underlying note (or its chain of assignment) in order to conduct a Trustee’s Sale. Blau v. Am.’s Serv. Co., 2009 WL 3174823, at *6 (D. Ariz. 2009); Mansour v. Cal-W. Reconveyance Corp., 618 F. Supp. 2d 1178, 1181 (D. Ariz. 2009); Diessner v. Mortg. Elec. Registration Sys., 618 F. Supp. 2d 1184, 1187 (D. Ariz. 2009). It would make no sense to require a creditor to demonstrate more to obtain stay relief than it needs to demonstrate under state law to conduct a judicial or non-judicial foreclosure. Moreover, if a note is endorsed in blank, it is enforceable as a bearer instrument. See In re Hill, 2009 WL 1956174, at *2 (Bankr. D. Ariz. 2009). Therefore, this Court declines to impose a blanket requirement that all movants must offer proof of a note’s entire chain of assignments to have standing to seek relief although there may be circumstances where, in order to establish standing, the movant will have to do so.

    3. The Movant Has Not Violated Rule 9011

    The Debtor argues that GMAC “violated Rule 7011″ by presenting insufficient and misleading evidence. Given that there is no Rule 7011, the Court assumes that the Debtor was actually referring to Bankruptcy Rule 9011. Rule 9011 allows a court to impose sanctions for filing a frivolous suit. FED. R. BANKR. P. 9011(c); see also FED. R. CIV. P. 11(c). As noted at the evidentiary hearing, the Court did not find that GMAC filed its motion for relief stay in bad faith, nor does this Court believe GMAC filed its motion thinking it did not have proper evidentiary support. There are numerous, often conflicting, decisions on the issues of “real party in interest” and constitutional standing, and what evidence must be presented by a servicer seeking stay relief. The record in this case does not support imposition of 9011 sanctions.

    VI. CONCLUSION

    GMAC has not demonstrated that it has constitutional or prudential standing or is the real party in interest entitled to prosecute a motion for relief from stay.

    Accordingly, its motion is DENIED without prejudice.

    1. Exhibits refer to the exhibits admitted into evidence at a November 10, 2009 evidentiary hearing.
    2. Because there is no federal commercial law which defines who is a note holder, the court must look to Arizona law to determine if GMAC is a holder. In re Montagne, 421 B.R. 65, 73 (Bankr. D. Vt. 2009) (“Bankruptcy law does not generally provide for the enforcement of promissory notes. As a result, the legal obligations of the parties are determined by applicable non-bankruptcy law, which is usually state law.”).
    3. Arizona substantially adopted the 1972 revised version of the Uniform Commercial Code (“UCC”) in 1975. See Fin. Mgmt. Servs., Inc. v. Familian Corp., 183 Ariz. 497, 499 n.1 (Ct. App. 1995); Wollenberg v. Phoenix Leasing Inc., 182 Ariz. 4, 7 n. 2 (Ct. App. 1994). In 1993, Arizona adopted the 1990 revision of UCC Article 3. Fin. Mgmt. Servs., Inc., 183 Ariz. at 502 n.2.
    4. The special endorsement to GMAC is also completely inconsistent with the securitization of the note into the Trust which GMAC asserts occurred shortly after it was executed by the Debtor. According to GMAC, the Note and DOT were conveyed by GreenPoint to Lehman and ultimately to a Trust. But if the Note was endorsed to GMAC, GreenPoint would not have been able to convey the Note — only GMAC as the holder of the note could have conveyed it.
    5. If the Note was endorsed in blank (and the Endorsement was properly affixed to the Note), it would be a bearer instrument and, therefore, enforceable by the party in physical possession. See In re Hill, 2009 WL 1956174, *2 (Bankr. D. Ariz. 2009).
    6. MERS’ primary function is to act as a document custodian. Major players in the mortgage lending industry created MERS to simplify the process of transferring mortgages by avoiding the need to re-record liens — and pay court recorder filing fees — each time it is assigned. Christopher L. Peterson, Predatory Structured Finance, 28 CARDOZO L. REV. 2185, 2266-67 (2007).
    7. The Arizona District Court has recently held that MERS, as a named beneficiary under a deed of trust, could appoint a trustee under Arizona’s non-judicial foreclosure statute to conduct a foreclosure sale. Contreras v. U.S. Bank as Trustee for CSMC Mortg. Backed Pass-Through Certificates, Series 2006-5, 2009 WL 4827016 (D. Ariz. 2009); Blau v. Am.’s Serv. Co., 2009 WL 3174823 (D. Ariz. 2009). Those cases, however, focused on whether a non-judicial foreclosure sale can be conducted under Arizona’s non-judicial foreclosure statute without presentation of the original note. This court agrees that non-judicial foreclosures may be conducted under Arizona’s deed of trust statute without presentation of the original note; however, that does not resolve the issue of standing in a motion for relief from stay. Furthermore, while Arizona’s non-judicial foreclosure statute does not require presentation of the note, a deed of trust secures the performance of a contract under A.R.S. § 33-801(8). Therefore, a non-judicial foreclosure is conducted to enforce the rights of the contract holder and, the party conducting such a sale is presumably either the holder of the contract or the holder’s agent.
    8. Even if a servicer has constitutional standing, it may still not be the “real party in interest” under Fed. R. Civ. P. 17 and may not, therefore, be able to satisfy the requirements for prudential standing. See, e.g., In re Jacobson, 402 B.R. 359, 365-66 (Bankr. W.D. Wash. 2009); In re Hwang, 396 B.R. 757, 767 (Bankr. C.D. Cal. 2008).

    This copy provided by Leagle, Inc.

  292. MORTGAGE TRUST LEGAL CONTROVERSY
    M.Soliman

    Defaults are another topic of contention by ex-insiders like Soliman, who complained about the deteriorating condition for which bank loans were sold with recourse to the trust.

    Its no secret that many borrowers were given loans they did not qualify for at time of settlement. Now we have a new era of lender recovery fraud separate from the RESPA issues.

    What do you tell attorneys venturing onto the high stakes game of risk to reward in exchange for disgruntled borrower angst? Lenders are using a credit from the stock certificates to steal the borrower home at the trustees sale.

    I see this all the time now. Transferee is the beneficiary and seller is a nominal interest who appoints a trustee through an agent for the nominee. The sale is for credit from “at then” consideration with a zero transfer tax. Then, heres the best part, the sale is to the beneficiary , “IF” entitled under “Pro Tanto”

    Pro Tanto is a Latin term meaning eminent domain. Another definition is for a moral obligation to pay back a debt of another debt.

    Its all a potential added liability for any borrower default which requires that a trusts manger or “trustee”, promptly notify the relevant bank or “seller”, or banks servicer for breach of any representation or warranty made by it in respect of a mortgage loan it sold. They are not!

    In some cases over 50% of a mortgage pool sold to a trust are delinquent and subject to a “put” back to the bank. Soliman commented “to what extent repos are issued therein is unknown as lenders will continue to avert repos in these instances and rather float payments as if the borrower is current”.

    Soliman stated that “it is not always the case and that will impact a borrowers rights in a default.”

    The master servicer will make cash advances with respect to delinquent payments of principal and interest on the mortgage loans to the extent the master servicer reasonably believes that the cash advances can be repaid from future payments on the mortgage loans.

    The cash advances are solely intended to maintain a regular flow of scheduled interest and principal payments on the certificates and are not intended to guarantee or insure against losses.

    The special purpose entity “SPE” where the assets are deposited controlled by the registrant who will purchase and pool the mortgage loans originated from the contributing source

    i.e. Seller’s Countrywide Home Loans, Inc. and one or more others affiliated with Countrywide Financial Corporation. Each of which is referred to in this prospectus supplement as a “Seller” and together they are referred to as the sellers.

    The arrangements are pursuant to a pooling and servicing agreement among the sellers, master servicer, the depositor and trustee, such as the Bank of New York.

    The trigger for a repo here is delinquency, according Soliman, and that will normally cause the mortgage loans to be assigned to the trustee for the benefit of the holders of the certificates. That mandate is called for in the indenture and violates SEC rules and invites enforcement. It makes no sense when you consider the loans are alleged sold from the onset.

    Now its an IRS issue and lender dilemma.

    According to Soliman, “If the loans were not assigned at the time of delivery and closing for pooling of the assets, then the loans remained the property of the seller”.

    Under FAS 140 these assets must be classified as transferred under a bonefide sale for reporting earnings and for the benefit of the shareholders. Allegedly, its the seller who books its earnings as a “gain on sale.”

    The Wall Street Journal reported that a spokesman for Ernst & Young said the firm regularly reviewed the accounting for the Investment Banks’ Repo 105 deals. It was reported their failure to act upon claims from a whistleblower that Investment Banks’ accounting for a trade known as “Repo 105″ was misleading, as reported in the Wall Street Journal.

    “Our view was, and continues to be, that Investment Banks’ accounting policy for these repo transactions complied with generally accepted accounting principles (GAAP).

    So, now we can look for round two of the Wall Street versus Main Street controversy. It’s Solimans position, when asked …”let the games begin.”

    The lender’s who tender their collateral into stock certificates have, for all intents and purposes, sacrificed their customary remedies in traditional foreclosures.

    The confusion we see is from a lender, no wait, a seller, no, a depositor, or maybe a servicing agent, no a master servicer or how about a trustee? See what I mean?”

    Now the lenders have stepped back to become a liquidator for a nominal interest held by a gang, or I mean, its not a gang it’s a club. The MERS club!”

    These people or “alien lenders” are vile in their material misrepresentations before the court and I believe are forever lost to the original terms and conditions for its collateral.

    From: expert.witness@live.com
    Sent: Saturday, April 03, 2010 8:54 AM

    Look back in time. . .

    arm chair warriors (O.North) often fail (discovery), when poisoned (lies) by these fairy tales (Iran Contra affair). The lawyers (White House) clean up all details (cover up) ….since daddy (Regan) had to lie (in our nations best interest).

    This is the end of the innocence.
    Words by D Henley

  293. MORTGAGE LEGAL CONTROVERSY

    Defaults are another topic of contention by ex-insiders like Soliman, who complained about the deteriorating condition in 2002. These bank loans were sold with recourse to the trust. Its no secret that many borrowers were given loans they did not qualify for at time of settlement.
    A potential liability for any borrower default requires that a trusts manger or “trustee”, promptly notify the relevant bank or “seller”, or banks servicer for breach of any representation or warranty made by it in respect of a mortgage loan it sold. In some cases over 50% of a mortgage pool sold to a trust are delinquent and subject to a “put” back to the bank. Soliman commented “to what extent repos are issued therein is unknown as lenders will continue to avert repos in these instances and rather float payments as if the borrower is current”.

    Soliman stated that “it is not always the case and that can impact a borrowers rights in a default.” The master servicer will make cash advances with respect to delinquent payments of principal and interest on the mortgage loans to the extent the master servicer reasonably believes that the cash advances can be repaid from future payments on the mortgage loans. The cash advances are solely intended to maintain a regular flow of scheduled interest and principal payments on the certificates and are not intended to guarantee or insure against losses. The special purpose entity “SPE” where the assets are deposited are the depositor and will purchase and pool the mortgage loans originated from the contributing source i.e. Seller’s Countrywide Home Loans, Inc. and one or more others affiliated with Countrywide Financial Corporation. Each of which is referred to in this prospectus supplement as a “Seller” and together they are referred to as the sellers. The arrangements are pursuant to a pooling and servicing agreement among the sellers, master servicer, the depositor and trustee, such as the Bank of New York.

    The trigger for a repo here is delinquency, according Soliman, and that will normally cause the mortgage loans to be assigned to the trustee for the benefit of the holders of the certificates. That is called for in the indenture and makes no sense when you consider the loans are alleged sold from the onset.

    According to Soliman, “If the loans were not assigned at the time of delivery and closing for pooling of the assets, then the loans remained the property of the seller”. Under FAS 140 these assets must be classified as transferred under a bonefide sale for reporting earnings and for the benefit of the shareholders. Allegedly, its the seller who books its earnings as a “gain on sale.”

    The Wall Street Journal reported that a spokesman for Ernst & Young said the firm regularly reviewed the accounting for the Investment Banks’ Repo 105 deals. It was reported their failure to act upon claims from a whistleblower that Investment Banks’ accounting for a trade known as “Repo 105″ was misleading, as reported in the Wall Street Journal. “Our view was, and continues to be, that Investment Banks’ accounting policy for these repo transactions complied with generally accepted accounting principles (GAAP).

    So, now we can look for round two of the Wall Street versus Main Street controversy. It’s Solimans position, when asked …”let the games begin. The lender’s who tender their collateral into stock certificates have, for all intents and purposes, sacrificed their customary remedies in traditional foreclosures. The confusion we see is from a lender, no wait, a seller, no, a depositor, or maybe a servicing agent, no a master servicer or how about a trustee? See what I mean?”

    Now the lenders have stepped back to become a liquidator for a nominal interest held by a gang, or I mean its not a gang it’s a club. The MERS club!”

    These people are forever lost to the original terms and conditions for its collateral.

    From: expert.witness@live.com
    Sent: Saturday, April 03, 2010 8:54 AM

  294. Recently had a forensic audit done. Found 1 major and 2 minor violations. Past the 3 year rescission period. What can I do? Does anyone know a good attorney in Memphis, TN?

  295. Mortgages investment trusts used accounting to commit fraud. Displaced homeowners maybe coming back home….
    By M.Soliman

    A U.S bankruptcy court examiner completed a 14 months assignment looking into the failure of Lehman Bros. The report came at a cost to the government and taxpayers of $35 million.

    Anton R. Valukas, the U.S. bankruptcy court-appointed examiner compiled a 2,000 plus page report he issued late last week, alleging that the failed investment bank constructed a highly questionable repurchase agreement known as Repo 105.

    The repo practices relied on a very aggressive interpretation of accounting rule, FAS 140. FASB issues formal statements such as one that replaces FASB125, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities.

    Valukas was charged with unscrambling the largest bankruptcy filing in U.S. History . His report has found among other things that the company used “materially misleading” accounting practices to enhance its balance sheet in order to look stronger than it really was.

    AccountingWEB first posted the story giving a summary account of the findings and cites where Repo 105 agreements differed from ordinary repurchase agreements. This is because investment firms valued the assets pledged in the repurchase agreement at 105 percent of the cash received.

    So then, with regards to assignments, this in and of itself suggests a bonefide transfer and earnings booked as a gain at time of sale. Therefore, based on the report , these trust assets which are mortgages are lost to the control of the seller forever.

    Maher Soliman, a Los Angeles based mortgage backed securities analyst is an expert witness to counsel and homeowners fighting a wrongful foreclosure. According to Soliman, I have not read the entire report but this is none the less a huge development for homeowners and something the government did not expect to see.

    When asked why, Soliman said “the government wants to prosecute culprits in the Lehman matter yet now have evidence of lender foul play across the board by the investment trust registrants.”

    This administration and court can no longer assume status quo in foreclosure with a breach of significant accounting rules. Its willful negligence intending to shield the investors from liabilities and leads to servicer conflict and interference with borrowers who sought relief in a foreclosure.

    A repurchase agreement (or repo) is an agreement between two parties whereby one party sells the other a security at a specified price with a commitment to buy the security back.

    A repurchase agreement is customarily a short-term financing vehicle for the parties managing the trust and has no impact on the balance sheet. For example when a company sells a bond or other, usually liquid, asset to a lender at market value for cash, and then repurchases the asset a few days later.

    The idea of shuffling assets to con regulators and maximize earnings, while a borrower is thrown out, is wrong, wrong wrong.

    msoliman
    expert.witness@live.com

  296. You I once read a Homeowner saying that any judge hearing a case that involves a mortgage(that has a mortgage himself) should have to recuse himself. At that time I didn’t understand, but now everything I know along with this quote from Thomas Jefferson it all makes perfect sense…

    “The judges… should always be men of learning and experience in the laws, ofexemplary morals, great patience, calmness and attention; their minds should not bedistracted with jarring interests; they should not be dependent upon any man orbody of men. To these ends they should hold estates for life in their offices, or, inother words, their commissions should be during good behavior, and their salariesascertained and established by law.” –Thomas Jefferson to George Wythe, 1776. ME4:259, Papers 1:410

    … the only way to keep judges impartial is to give them houses free from any obligation which is what is meant when they say the Judiciary is “Independent” and here as well as under the Constitution it states “commissions should be during good behavior”which makes pensions for all judges un-Constitutional and a conflict-of-interest.

  297. Bill Parish – The video is amazing. Do all judges belong to the same pension fund ?
    Is this a HUGE conflict of interest or what ?

  298. Judge’s Pension Plans are depending on profit from foreclosed homes. wow that sounds like something I would have said. OH THAT’S RIGHT I DID SAY THAT.

  299. TYPE or UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
    In re:JORGE CANELLAS, Case No. 6:09-bk-12240-ABB /Chapter debtor.

    I agree with the decision. The arguments brought by the moving party are off base. Look, you got a guy on here who’s jabbering about IRS this and IRS that. So why the need for a formal assignment.

    The indenture receives the revenue monthly paid to the trust via the Seller / Depositor. That company is a SPE or what I call a capitalized business segment for an FDIC member bank (how wrong is that).

    They are actually serviced by a less than arms agent who is part of a joint business combination.

    So, who cares about the assignment as I have opined and the court has spoken. Consider the following:
    1) who reports earnings as a gain on sale?
    2) Who reports earnings as dividends received (hint hint) to the IRS?
    3) Who publishes a 10 K annually

    There’s your claim to the holder in due course which is a significantly much stronger argument than a missing or defect assignment.

    In fact, talk about a blown case. No mention here of the requirement for recording the substitution or authorizing a she sheriff repossession).

    The terms of a contract preempt the civil code and that is a huge affirmative defense brought by adversary or the argument for diversity brought by inter-pleader.

    There’s a golden set of affirmative defenses or grounds to argue for a continued stay from relief.

    But the assignment as a contentious argument and meritorious defense…..Please!

    Although, but the assignment argument is old…so old I recognize the language used in the pleading from the Boyko matter and published courts comments.

    You people need to give the Judges a break. They are not by any means stupid and I can say that from a lot of time spent in court rooms across California

    Believe it or not….it’s Your home

    expert.witness@live.com

    ….anyone See my car….. Your text here…

  300. AND NOW THIS……….

    And yes the CAPS mean I am SCREAMING.
    Justice being served SOMEWHERE.
    “Due Process” being diligently applied SOMEWHERE.
    Pretenders being DENIED somewhere ……. in Florida.
    Sure hope this is affirmed if it is appealed. All about what Neil,
    Anonymous, Jan and “Wise Others” have been REPEATING
    for some time now.

    Foreclosure Fraud Fighters- New Bankruptcy Opinion from Middle District of Florida

    http://mattweidnerlaw.com/blog/2010/03/foreclosure-fraud-fighters-new-bankruptcy-opinion-from-middle-district-of-florida/

    March 29th, 2010

    IN BRIEF:

    UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

    In re:

    JORGE CANELLAS, Case No. 6:09-bk-12240-ABB
    Chapter 7
    Debtor.

    ……………………………………..

    TRUSTEE’S OBJECTION
    The Trustee opposes Movant’s Motion on the grounds Movant lacks standing to obtain stay relief and it failed to perfect its security interest prior to the Petition Date. Her opposition is grounded on the contention the Assignment is invalid. She has presented various legal theories in support of her position:

    1.Aurora Bank FSB f/k/a Lehman Brothers Bank DID NOT OWN THE MORTGAGE AND PROMISSORY NOTE ON THE DATE OF EXECUTION OF THE ASSIGNMENT and had no authority to assign them to Movant.

    2. By the terms of the two securitized trusts for Lehman Brothers designated 2006-3 registered with the U.S. Securities and Exchange Commission, no assignment occurred.

    3. The ASSIGNMENT WAS EXECUTED AND RECORDED POST-PETITION AND MAY CONSTITUTE A VIOLATION OF THE AUTOMATIC STAY pursuant to 11 U.S.C. Section 362(a)(4).

    4. MOVANT HAS NOT ESTABLISHED THAT ON THE PETITION DATE IT HAD PHYSICAL POSSESSION OF THE ORIGINAL PROMISSORY NOTE PROPERLY ENDORSED IN ITS FAVOR.

    5. LEHMAN BROTHERS’ ABILITY TO ENFORCE THE PROMISSORY NOTE OR MORTGAGE WAS EXTINGUISHED IN 2006 WHEN IT WAS PAID BY THE TRUST FOR THE POOL OF MORTGAGES WHICH FORM THE TRUST’S CORPUS.

    6. Title BETWEEN THE PROMISSORY NOTE AND MORTGAGE WERE BIFURCATED, thereby rendering the Mortgage unenforceable.

    Movant’s Motion, however, is due to be denied because Movant has failed to establish it has standing to seek stay relief. A MOTION FOR RELIEF FROM THE AUTOMATIC STAY MUST BE PROSECUTED IN THE NAME OF THE REAL PARTY IN INTEREST 11 U.S.C. § 362(d); FED. R. 7 CIV. P. 17(a)(1); FED. R. BANKR. P. 7017. “The real party in interest in relief from stay is whoever is entitled to enforce the obligation sought to be enforced.” In re Jacobson, 402 B.R. 359, 366 (Bankr. W.D. Wash. 2009). Only the holder of the Note and Mortgage, or
    its authorized agent, has standing to bring the Motion. Id. at 367.

    Movant asserts in its Motion it is the “owner and holder” of the Note and Mortgage, but has presented no evidence substantiating that assertion. The copies of the Note presented do not contain an endorsement evidencing an assignment of the Note.

    THE AFFIDAVIT EXECUTED BY MOVANT’S LOAN SERVICER MAKES NO MENTION OF THE LOCATION OF THE ORIGINAL NOTE OR WHO HAS POSSESSION OF IT. Movant proffered no business records or testimony tracing ownership of the Note and establishing Movant is the present holder of the Note.

    THE VERACITY OF THE ALLONGE AND ASSIGNMENT IS QUESTIONABLE. The dates contained in the Allonge are chronologically impossible. The Allonge is dated August 1, 2006, but references a trust that came into existence on October 31, 2006. The signature of Jennifer Henninger is undated and not notarized. The Allonge was not referenced in or filed with Movant’s Motion in October 2009, but was presented three months later as an attachment to its post-hearing brief.

    THE ASSIGNMENT WAS EXECUTED AND RECORDED POST-PETITION APPROXIMATELY TWO WEEKS PRIOR TO MOVANT’S FILING OF THE MOTION FOR RELIEF. It was prepared by Jennifer Henninger, who executed the Allonge, and was recorded by the law firm that is representing Movant in this proceeding. Jack Jacob’s execution of the Assignment was notarized by Jennifer Henninger and witnessed by Louis Zaffino, the affiant of Movant’s Affidavit. It appears the Allonge and the Assignment were created post-petition for the purpose of the relief from stay proceeding. Movant did not establish Jennifer Henninger and Jack Jacob had authority to execute the Allonge and Assignment.
    ……………………….

    Accordingly, it is

    ORDERED, ADJUDGED AND DECREED……………….

    that the Movant’s Motion for Relief from Stay (Doc. No. 22) is hereby DENIED due to Movant’s failure to establish it has standing to bring the Motion; and it is further

    ORDERED, ADJUDGED AND DECREED that the Trustee, within twenty-one days of the entry of this Order, is hereby directed, pursuant to 11 U.S.C. Section 704(a) and Federal Rule of Civil Procedure 5009, to file with the Court a Report of No Distribution or to designate this case as an asset case.

    Dated this 9th day of February, 2010.

    /s/ Arthur B. Briskman

    ARTHUR B. BRISKMAN
    United States Bankruptcy Judge

    ———————————-

    And I have a question for “Wise Others”?

    “……pursuant to 11 U.S.C. Section 704(a) and Federal Rule of Civil Procedure 5009, to file with the Court a Report of No Distribution or to designate this case as an asset case…….”

    Could this be translated into everyday language? I am not sure this is a TOTAL WIN for the Debtor or not.

  301. A LITTLE FYI ……..

    BANKRUPTCY DISCHARGE V. DEBT CANCELED: TAXING MATTER

    by Mark Buckley, Rhode Island Bankruptcy Lawyer
    on March 27, 2010

    Under the U.S. Bankruptcy Code, if a debt is discharged in a bankruptcy case, it does NOT count as taxable income. Bankruptcy-discharged debt is, therefore, much more powerful than merely canceled debt. While canceled debt may create an income tax liability, discharged debt does not. See What is a 1099c and what do I do about it?

    CANCELED DEBT SOUNDS GOOD

    We all know that wage income is taxable. Take a look at your latest pay stub and remind yourself just how much the government actually takes.

    But what are the tax ramifications of canceled debt? Is canceled debt treated the same way as regular income? Will you end up owing the IRS because of a debt settled or canceled by a creditor?

    By “canceled debt” I mean that portion of a debt that a creditor is unable to collect from you and is later ”written off.” Its that pile of bills you have no ability to repay and is basically not collectible.

    First, lets consider some examples. What if you borrow $ 100,000 from a bank and then default after only repaying $ 20,000? How should the $ 80,000 unpaid portion be treated by the Internal Revenue Service? Here is another example. If you owe $ 8,000 on a Visa credit card and stop making payments, how should the creditor’s loss be treated on your tax return?

    Generally, a creditor’s loss is your income gain. When a creditor loses hope of collecting a debt, they may cancel the debt and report the amount canceled to the IRS using form 1099-C (Cancellation of Debt). Then, when tax season arrives, you receive your 1099-C and report the canceled debt as additional income subject to the tax ax.

    This is why many debt management, or debt consolidation programs are dangerous. While they may be marginally successful in getting your phone to stop ringing from debt collectors, they cannot prevent the IRS from knocking on your door wanting to tax you on the canceled debt.

    DISCHARGED DEBT IS BETTER

    This is not to say that a creditor won’t still attempt to send a debtor with a bankruptcy discharge a Form 1099-C. The solution for one who has filed bankruptcy, however, is to file IRS Form 982. This can exclude the amount of discharged indebtedness from your gross income.

    In a future post, we will consider the Mortgage Forgiveness Debt Relief Act of 2007. While the act will not prevent a mortgage company from suing you, it may remove the tax liability of canceled debt for a homeowner on his principal residence.

    CHARGE OFFS

    Don’t confuse “canceled” debt with “charged off” or “written off” debt. A “charge off” means the creditor has removed the account from its active books and likely sent the account for collection or sold the account to a debt buyer. You may see “charge off” on your credit report, but that does not mean you don’t owe the debt. You still owe the money unless the debt was canceled with a 1099-C or the debt was discharged in bankruptcy.

  302. WHEN YOU CLASSIFIED ASSETS AND CHARGE THEM TO EARNINGS TO AVOID TAXES YOU ESTABLISH NEW CONSIDERATION .

    The topic of corporate tax breaks has raised questions because of a provision in the 2009 stimulus bill, which allows companies to “carry back” their losses for 2008 and 2009 to the previous five years, instead of just the previous two years.

    Charging off toxic assets as a loss against earnings in order to receive tax breaks means your loan is written down to zero.

    How can you keep assets on the books and seek to foreclose if the assets are valued at a loss. A loan origination sold for cash and then using the cash to purchase stock is one thing. Selling the stock at multiples is another. But then writing off the stock and or underlying assets down for tax credits assumes the assets are liquidated at a loss. Liquidate means gone so whose loans are these anyway where the lender is foreclosing?

    So how do you come back and set a bid price in a sham foreclosure sale whereby you (bank) are the highest bid. And the consideration paid is equal to your basis in the original loan and offered to a trustee as a credit back.Next we have a transferee who is the beneficiary and the seller who is hidden behind a nominee.

    Banks and registrants that suffered big losses in 2008 and 2009, but made a lot of money in the years before that, stand to gain billions in refunds.

    Bank of America and Wells Fargo, companies that received TARP loans are taking huge hits to earnings and the accounting methods must be part of your argument and discovery.

    msoliman
    expert.witness@live.com

  303. Any lawyers in Ohio?

  304. THIS IS A CRIMINAL-OFFENSE AND I DON’T GET IT!
    They can be facing criminal charges (Deontos – I do not get it).

    -2010 Testimony-

    WaMu V Chancey / Case Dismissed with Defendants present
    Corbitt V Aurora / Judge ruled with prejudice in favor if the homeowner
    Wells V Goines / Borrower won at trial
    GMAC v Fanning / Settlement for $25,000
    SPS v Lopez / Settlement offer $50,000
    First Franklin Financial Group v Spicier / Dismissed with Plaintiff present

    More cases won and I am asked not to divulge information pending appeals and so forth…i.e. Recent wins include San Diego Superior Court

    M. Soliman provided witness testimony in each case listed by him.I cannot tell you everything I want as some of these matters are pending trial. For example I recently finished two-days of a difficult deposition.

    Allegations that suggest I am a fraud or from interests who are not winning in court and unknown sources. These people-never have a real-name or telephone. They will not even come forward to identify themselves. Who they work for or their motivation , nameless or not , is the concern.

    Personal attacks like the Rip Off report are sham claims against me and will never end.Various sorts do not want to see me testify. I am normally paid by the attorneys who engage my services anyway.

    Homeowners, it’s the attorneys that win cases in court and not the witness. A witness helps to build a case with testimony obtained over 20 years.

    Traded over one billion as a principal
    Over two years in house with prestigious law firm
    Sold assets to Saxon, GMAC, CitiGroup, B of A and Many Investment trusts
    Written Private Placement memorandums for counsel
    Over seven years with a FDIC lender in Compliance and Acceptance
    Have written the Policies and procedures used to underwrite and deliver

    The negative attacks and comments made publicly are false and solely to discredit a witness who testifies in a court of law. THIS IS A CRIMINAL-OFFENSE AND I DON’T GET IT! They can be facing criminal charges (Deontos – I do not get it).

    These people you will recognize with their doom and gloom messages about judges (libelous) and personal attacks. I do not get it!

    PS. I have a car and I am not homeless… LOL

    God Bless you

    expert.witness@live.com

  305. Below article from Huffington Post By Randall Chase on 3-27-2010

  306. DOVER, Del. — Washington Mutual Inc. filed a Chapter 11 reorganization plan, two weeks after resolving a $4 billion dispute with JPMorgan Chase & Co. and the Federal Deposit Insurance Corp.

    The FDIC seized Washington Mutual’s flagship bank in 2008 and sold its assets to JPMorgan for $1.9 billion. The sale resulted in the two banking companies and the government agency trading lawsuits over roughly $4 billion in disputed deposit accounts following the largest bank failure in U.S. history.

    The bank holding company filed its 521-page plan late Friday in U.S. Bankruptcy Court in Delaware.

    The plan, which still has to be approved by a judge, would set up a $7 billion trust fund for paying creditors, including the $4 billion in deposit accounts that JPMorgan had claimed for itself.

    As part of a compromise reached this month, JPMorgan has agreed to turn over the $4 billion to Washington Mutual in return for 70 percent of the tax refunds expected from WaMu’s prior operating losses, which are valued at about $3 billion.

    WaMu would get about 40 percent of the tax refunds resulting from a second round of operating losses, which are valued at about $2.6 billion. The remaining 60 percent would go to the FDIC

    READ THE PLAN – Se Next Post from me

  307. WAMU Chapter 11 bankruptcy March 26 2010 filed in Delaware.

    WASHINGTON MUTUAL – read below

    http://www.scribd.com/doc/29034013/Main-WAMU-BKR-Chapter-11-Plan-Filed-03262010-With-Exhibits-a-to-I

  308. For those interested in quiet title action, you can find the steps I use. Note that this apply to Florida. It may be different in your state.
    xhttp://foreclosureprose.squarespace.com/how-to-quiet-title/

    marcus@foreclosureProSe.com

  309. U.S. Plans Big Expansion in Effort to Aid Homeowners
    Source: NYTimes 03/26/2010

    The Obama administration on Friday will announce broad new initiatives to help troubled homeowners, potentially refinancing several million of them into fresh government-backed mortgages with lower payments.

    Another element of the new program is meant to temporarily reduce the payments of borrowers who are unemployed and seeking a job. Additionally, the government will encourage lenders to write down the value of loans held by borrowers in modification programs.

    The escalation in aid comes as the administration is under rising pressure from Congress to resolve the foreclosure crisis, which is straining the economy and putting millions of Americans at risk of losing their homes. But the new initiatives could well spur protests among those who have kept up their payments and are not in trouble.

    The administration’s earlier efforts to stem foreclosures have largely been directed at borrowers who were experiencing financial hardship. But the biggest new initiative, which is also likely to be the most controversial, will involve the government, through the Federal Housing Administration, refinancing loans for borrowers who simply owe more than their houses are worth.

    About 11 million households, or a fifth of those with mortgages, are in this position, known as being underwater. Some of these borrowers refinanced their houses during the boom and took cash out, leaving them vulnerable when prices declined. Others simply had the misfortune to buy at the peak.

    Many of these loans have been bundled together and sold to investors. Under the new program, the investors would have to swallow losses, but would probably be assured of getting more in the long run than if the borrowers went into foreclosure. The F.H.A. would insure the new loans against the risk of default. The borrower would once again have a reason to make payments instead of walking away from a property.

    Many details of the administration’s plan remained unclear Thursday night, including the precise scope of the new program and the number of homeowners who might be likely to qualify.

    One administration official cautioned that the investors might not be willing to volunteer any loans from borrowers that seemed solvent. That could set up a battle between borrowers and investors.

    This much was clear, however: the plan, if successful, could put taxpayers at increased risk. If many additional borrowers move into F.H.A. loans, a renewed downturn in the housing market could send that government agency into the red.

    The F.H.A. has already expanded its mortgage-guarantee program substantially in the last three years as the housing crisis deepened. It now insures more than six million borrowers, many of whom made minimal down payments and are now underwater.

    Sources said the agency would use $14 billion in funds from the Troubled Asset Relief Program, some of which it could dangle in front of financial institutions as incentives to participate.

    Another major element of the program, according to several people who described it, will be to encourage lenders to write down the value of loans for borrowers in modification programs. Until now, the government’s modification efforts have focused on lowering interest rates.

    Lenders began offering principal forgiveness last year on loans they held in their own portfolios. In the fourth quarter, however, this process abruptly reversed itself, for reasons that are unclear. The number of modifications that included principal reduction fell by half.

    Bank of America, the country’s biggest bank, announced this week that it would forgive principal balances over a period of years on an initial 45,000 troubled loans.

    Another element of the White House’s housing program will require lenders to offer unemployed borrowers a reduction in their payments for a minimum of three months.

    An administration official declined to speak on the record about the new programs but said they would “better assist responsible homeowners who have been affected by the economic crisis through no fault of their own.”

    The new initiatives would expand the government’s current mortgage modification plan, announced a year ago with great fanfare. It has resulted in fewer than 200,000 people getting permanent new loans. As many as seven million borrowers are seriously delinquent on their loans and at risk of foreclosure.

    While fewer people are beginning default, the number of borrowers who are seriously distressed is rising. In the fourth quarter, the number of households at least 90 days past due on their mortgages swelled by 270,000, according to a report issued Thursday by the comptroller of the currency and the Office of Thrift Supervision.

    “The government is seeking to persuade people to stay in their homes by aligning the mortgage debt with the asset value, which is the only viable path to real housing stability,” said one person who was briefed on the government’s plans.

    The number of foreclosures in the fourth quarter rose 9 percent, to 128,859. An additional 38,000 owners disposed of their homes in short sales, where the lender agreed to accept less than it was owed.

    A person briefed on the new plan said the number of underwater borrowers who qualified for the plan could be in the millions. The government is not planning to solicit loans for the program, stressing that it is voluntary.

    The administration recognizes that some people’s finances have deteriorated so far that they are beyond help, the person said. People in that situation simply cannot afford the houses they are living in, the person said, even if the mortgages were reduced.

    “All these programs are geared toward people for whom it makes sense, for whom it’s workable when all is said and done,” the person said. “Some people are too far gone.”

    marcus@foreclosureProSe.com

  310. Deontos

    Write me at “expert.witness@live.com” or go to http://www.foreclosureinfosearch.com and there I will provide you winning court details. Or you can speak to counsel we are bringing in to the matter to quiet title.

    I am also pleased to introduce a new attorney that really seems to get it. So far it’s been a true pleasure working with Doug. I will share more about his background and success later.

    This is really huge from our vantage. My perspective is there is only one truly effective defense and that is to link the allegations made leading up to sale to the deceptive and misleading transfers by trustee. The first set of arguments are substantiated now by the fraud seen as otherwise unnecessary in a normal lender recovery.

    m.soliman

  311. after filing a lawsuit against my lender, i was able to get the NOD rescinded. I also got an illegal sale rescinded. Does anyone know what would be my next move? Should i file quiet title suit? should i wait for them to re-file NOD? There are other issues but i thought since i have had two major instances where they reversed their wrong that i might have a case to show the court that I have right to quiet title.

    Any suggestions would be greatly appreciated.

  312. Deontos.

    Beware of this Solimon guy. He makes a lot of claims but never seems to back it up. He never appears in court because I hear he doesn’t own a car. His testimony he claims to have done has never been submitted in a case as evidence. I hear he has taken money from people and not given them anything in return. There are a lot of people out there taking advantage of those in distress. Do your homework!!!!!!

  313. Maher,

    Thank you for that GOOD NEWS. As I am sure you saw my post below about SO MANY drowning in Oblivion’s Sea?

    Could you throw us a “life raft” or a “rope”? Anything to give
    some help? I’d sure like to know the actual name of the San Diego case so I can look it up.

    Thanks again for that good news. Your insights and opinions are always thought provoking.

  314. Recent Update

    Case Won by Defendant
    Expert testimony : MSoliman
    Decision: Case dismissed with both side present
    Courthouse: California Superior /County of San Diego
    Counsel : Pro Per

    Comments: Lender as Plaintiff vs Defendant’s
    Claims brought: Lenders right to trustee sale and transfer of fee title held by defendants as community and Lender servicing agent claims to right of possession.

    Action: Filed against defendant early February 2010
    Matter: Court to decide the right of lender recovery and standing for the successors and assigns under the original terms and conditions found in the the security instrument / deed of trust.

    Jurisdiction: Unlimited

    This really is not that hard folks…really!
    expert.witness@live.com

  315. Meanwhile in California we are
    drowning in Oblivion’s Sea. Buford
    seems to be pointing the WAY in
    BK Courts. But the otherwise?

    In Florida their Supreme Court
    has weighed and some homeowners
    are finding their way so shore.

    =================================

    Bankruptcy Court Denies Lender’s Right To Foreclose- Questionable Assignment
    March 23rd, 2010 · No Comments · Foreclosure

    The problem with all the “evidence” being created by pretender lender and foreclosure mills is it often lacks the evidentiary basis to establish the claims the documents purport to support. In a hot of the presses, just released opinion from the Federal Bankruptcy Court in the Middle District of Florida, Judge ARTHUR B. BRISKMAN denied the relief sought by a lender because he questioned the veracity of the “evidence” provided by the alleged lender.

    If the same analysis used by judge Briskman were applied in circuit courts across the state, the pretender lenders would be in a real mess….it’s clear when you examine the “evidence” submitted by plaintiffs and read the deposition transcripts of robo signers that the practices employed by the lenders simply cannot withstand proper judicial scrutiny. The full opinion can be found here, excepts of good case law as follows:

    It appears the Allonge and the Assignment were created post-petition for the purpose of the relief from stay proceeding. Movant did not establish Jennifer Henninger and Jack Jacob had authority to execute the Allonge and Assignment.

    Movant’s submissions are insufficient to establish it is the owner and holder of the Note and Mortgage or is authorized to act for whoever holds these documents. In re Relka, No. 09-20806, 2009 WL 5149262, at *5 (Bankr. D. Wyo. Dec. 22, 2009) (granting stay relief where movant established possession of note through testimony of witness who personally retrieved note from movant’s vault); In re Jacobson, 402 B.R. at 370 (denying movant’s stay relief motion due to movant’s failure to establish it was holder of note); In re Hayes, 393 B.R. 259, 270 (Bankr. D. Mass. 2008) (denying movant’s stay relief motion and sustaining debtor’s claim objection due to movant’s failure to establish it was holder of note). Movant has not established it has standing to bring the Motion and the Motion is due to be denied.

  316. BEWARE THE SUCKER PUNCH “TEMPORARY FORBEARANCE” AGREEMENT
    from Foreclosure Defense Nationwide

    March 17, 2010

    Today, we received three calls from borrowers in three different states, both judicial and non-judicial, who have fallen prey to the alleged “Temporary Forbearance” Agreements currently being offered by “lenders” and servicers. The only thing these agreements do is wind up taking more money from the borrower so that the “lender” or servicer can pay their attorneys to foreclose on the borrower’s home. In each instance, the borrower entered into and complied with the agreement on the representation that it was a prelude to a “more permanent modification agreement”, when in reality the “lender” or servicer had no intention whatsoever of making any such permanent agreement.

    DESPITE BORROWER COMPLIANCE IN EACH INSTANCE, THE “LENDER” OR SERVICER, AFTER CONSTANTLY DEMANDING MORE AND MORE DOCUMENTATION AND INFORMATION FROM THE BORROWER, FORECLOSED ANYWAY: in one instance by selling the borrower’s home with no notice to the borrower (in California); in the second instance by scheduling the property for Trustee’s Sale (in Washington); and the third by pursuing the judicial foreclosure (in Florida).

    In view of the consistent information and fact patterns which we are receiving almost daily as to THESE ALLEGED “AGREEMENTS”, THEY ARE ILLUSORY AT BEST, AND APPEAR TO BE DESIGNED SOLELY TO OBTAIN MONEY FROM THE BORROWER TO FINANCE THE ULTIMATE FORECLOSURE most likely because, as we have written on this website, foreclosure has now become big business and a lot of money is being made (both on paper and in reality) by a select few. Misleading? You bet. Fraudulent? Most likely. Actionable? Absolutely.

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

  317. NY JUDGE JOSEPH J. MALTESE DENIES BAUM FORECLOSURE MILL!!!!

    SUPREME COURT OF THE STATE OF NEW YORK Index. 103711/08
    COUNTY OF RICHMOND DCM PART 3 Motion No.: 002
    001
    WELLS FARGO BANK, N.A.,
    Plaintiffs
    against
    RALPH LEGUILLOW,
    BOARD OF DIRECTORS OF GRYMES HILL ESTATES
    OWNERS ASSOCIATION,
    NEW YORK CITY ENVIRONMENTAL CONTROL
    BOARD,
    NEW YORK CITY TRANSIT ADJUDICATION BUREAU,
    PEOPLE OF THE STATE OF NEW YORK
    Defendants
    The following items were considered in the review of the following motions (1) to Amend the Answer, (2) Compel
    Production of Documents, and (3) for Summary Judgment.
    Papers Numbered
    Notice of Motion and Affidavits Annexed 1
    Notice of Cross-Motion and Answering Affidavits 2
    Answering Affidavits to Cross-Motion 3
    Exhibits Attached to Papers
    Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:
    Plaintiff Wells Fargo Bank’s motion for summary judgment to foreclose on the mortgage of
    the Defendant Ralph Leguillow (“Leguillow”) pursuant to CPLR 3211 is denied with leave to renew.
    Defendant Leguillow’s cross-motion allowing him to submit an amended answer pursuant
    to CPLR 3025(b) is granted.
    Defendant Leguillow’s cross-motion for an Order compelling Plaintiff to respond to
    Defendant’s Request for Production of Documents pursuant to CPLR 3124 is granted, in part, to the
    extent discussed herein.
    [* 1]
    PROCEDURAL HISTORY
    Plaintiff initiated this foreclosure action against Defendant on August 27, 2008. Defendant
    filed an answer pro se on September 30, 2008. No action was taken until May 11, 2009, when
    Defendant sent Plaintiff a Request for Production of Documents. Plaintiff did not respond to
    Defendant’s request. Instead, Plaintiff filed the instant motion for summary judgment to allow
    Plaintiff to foreclose on the mortgage on May 18, 2009.
    FACTS
    Defendant Ralph Leguillow (“Leguillow”) is a retired firefighter and earns a pension of
    approximately $4,200 per month. In addition to his pension, Leguillow worked in construction until
    2008. The total income combined from Leguillow’s pension and construction work totaled
    approximately $6,450 per month. Leguillow contacted an agent named “Don” with Grymes Hills
    Estate about purchasing a house. Don referred Leguillow to a mortgage broker named “Craig” at
    CTX Mortgage Company, LLC (“CTX”). Leguillow provided Craig with documentation of his
    monthly income and disclosed that he could not afford a monthly payment above $3,000. Craig
    assured Leguillow that the monthly payments on his loan would not exceed $2,800. Don then
    referred Leguillow to a closing attorney named Joann Monaco, whom he met a week prior to the
    closing. At no time prior to the closing was Leguillow informed of the terms of the loan. Leguillow
    purchased the property located at 15 Tessa Court, Staten Island, New York (the “Property”) on
    September 11, 2007 with a mortgage originally from CTX. The mortgage was for $464,412 with a
    30-year fixed interest rate of 6.875%. The initial monthly payments began at $3,565 and rose to as
    high as $4,100. Subsequent to the closing, title to the mortgage and the note was assigned to Plaintiff
    Wells Fargo Bank, N.A. When construction work slowed down, Leguillow lost the additional
    income and was left with only his firefighter’s pension. In May 2008, seven months after beginning
    payments, Leguillow defaulted on the mortgage.
    2
    [* 2]
    DISCUSSION
    Plaintiff’s Motion for Summary Judgment
    A motion for summary judgment must be denied if there are “facts sufficient to require a trial
    of any issue of fact” (CPLR §3212[b]). Granting summary judgment is only appropriate where a
    thorough examination of the merits clearly demonstrates the absence of any triable issues of fact.
    “Moreover, the parties competing contentions must be viewed in a light most favorable to the party
    opposing the motion”1 Summary judgment should not be granted where there is any doubt as to the
    existence of a triable issue or where the existence of an issue is arguable.2 On a motion for summary
    judgment, the function of the court is issue finding, and not issue determination.3 In making such
    an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing
    the motion.4
    A prima facie entitlement to summary judgment is shown by providing evidence of the
    assignment, the mortgage, the note, and the defendants’ default.5 In order to demonstrate a valid
    assignment, either a written assignment of the underlying note or the physical delivery of the note
    prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the
    1 Marine Midland Bank, N.A., v. Dino, et al., 168 AD2d 610 (2d Dept 1990)
    2 American Home Assurance Co., v. Amerford International Corp, 200 AD2d 472 (1st
    Dept 1994)
    3 Weiner v. Ga-Ro Die Cutting, 104 AD2d 331 [2d Dept 1984]. Aff’d 65 NY2d 732
    [1985]
    4 Glennon v. Mayo, 148 AD2d 580 [2d Dept 1989]
    5 North Bright Capital, LLC v 705 Flatbush Realty, LLC, 2009 NY Slip Op 7809, 1 (2d
    Dept 2009)
    3
    [* 3]
    mortgage passes with the debt as an inseparable incident.
    Plaintiff has presented sufficient evidence to satisfy its initial burden of demonstrating its
    entitlement to summary judgment. Plaintiff has presented the note along with the mortgage, as well
    as a recordation of the assignment of the mortgage and the note to Plaintiff.6 Further, Plaintiff asserts
    that the mortgage and the note were physically delivered prior to the commencement of the action.
    Defendant also acknowledges being in default on the mortgage payments.7 Once the moving party
    has made a showing of sufficient evidence, the burden shifts to the party opposing summary
    judgment to put forth evidence in admissible form to establish a triable issue of fact.8 The burden
    now shifts to Defendant to come forward with evidence showing the existence of a triable issue of
    material fact.
    Defendant satisfies his burden of establishing the existence of a triable issue of material fact.
    CPLR 3408 states in part,
    “In any residential foreclosure action involving a high-cost home loan consummated
    between January 1, 2003 and September 1, 2008 or a subprime…home loan, as those
    terms are defined under Section 1304 of the Real Property Actions and Proceedings
    Law [RPAPL]…the court shall hold a mandatory conference…for the purpose of
    …determining whether the parties can reach a mutually agreeable resolution.”
    A subprime home loan under Section 1304 of the RPAPL is defined as a loan with an interest
    rate more than three percentage points over the yield on Treasury securities having comparable
    periods of maturity to the loan at issue.9
    6 Exhibit A, Plaintiff’s Affirmation in Opposition to Defendant’s Cross-Motions
    7 ¶ 30, Notice of Cross-Motion, Affidavit of Ralph Leguillow
    8 Zuckerman v. City of New York, 49 NY2d 557 [1980]
    9 See RPAPL §1304(5)(d)
    4
    [* 4]
    Defendant has asserted that his loan qualifies as “subprime” and that, by virtue of the
    subprime classification, he is entitled to a mandatory settlement conference pursuant to CPLR 3408.
    At the time the loan was made on September 11, 2007, the yield on a comparable U.S. Treasury
    security with a 30-year maturity was 4.72%.10 As such, in order to qualify as a “subprime” home
    loan, the Annual Percentage Rate (APR) on Defendant’s loan must have been higher than 7.72%.
    This Court currently does not have the documents necessary to make the determination
    whether the loan at issue qualifies as a “subprime” loan. In order for this court to make such a
    determination, the HUD-1 Settlement Form must be provided because the form contains the accurate
    APR. Such documents necessary for this determination are solely in the possession of Plaintiff. Since
    there is a question of fact whether Defendant is entitled to a mandatory settlement conference, and
    any settlement conference must take place prior to a judgment being rendered, Plaintiff’s motion for
    summary judgment must be denied with leave to renew.11
    Defendant’s Motion to Amend Answer
    Under CPLR 3025(b), leave to amend pleadings is freely granted absent prejudice or surprise
    resulting from delay.12 An amended answer is permitted unless it is patently devoid of merit,
    palpably insufficient, or prejudices the other party.13 Mere lateness or the passage of time alone,
    without a showing of significant prejudice, does not justify the denial of an application for
    amendment.14
    10 Exhibit D, Defendant’s Notice of Cross-Motion
    11 Fremont Inv. & Loan v. Haley, 2009 NY Slip Op 51186U (Queens Cty. 2009)
    12 Edenwald Contracting Co. v. New York, 60 N.Y.2d 957, 959 [1983]
    13 Pelligrini v. Richmond County Ambulance Service, Inc., 48 A.D.3d 436 [2d Dept 2008]
    14 Edenwald, supra; Abrahamian v. Tak Chan, 33 A.D.3d 947 [2d Dept 2006]; Northbay
    Const. Co. v. Bauco Const. Corp., 275 A.D.2d 310 [2d Dept 2000]
    5
    [* 5]
    Plaintiff waited nearly eight months to submit its motion for summary judgment, having
    taken no action between September 30, 2008 and May 18, 2009. Further, Plaintiff filed their motion
    only after being contacted by Defendant in the form of a demand for discovery on May 11, 2009. In
    addition, this court cannot say that the counterclaims asserted in Defendant’s Proposed Amended
    Answer are patently devoid of merit or palpably insufficient. The Proposed Amended Answer
    contains a statement of factual circumstances surrounding the origination of the note and mortgage
    that, if true, may establish that Plaintiff was negligent and thereby entitle Defendant to the relief
    requested.
    Since Plaintiff will not be prejudiced by allowing Defendant to submit an Amended Answer,
    he is permitted to submit an Amended Answer.
    Defendant’s Motion to Compel Production of Documents
    Disclosure of requested documents is not usually required prior to a Court’s ruling on a
    motion for summary judgment. However, summary judgment prior to disclosure is not justified
    where documents in the possession of the movant would be critical to the non-movant’s ability to
    assert potentially meritorious defenses.15
    In this case, Plaintiff is in control of documents and facts that are necessary for Defendant
    to oppose Plaintiff’s motion for summary judgment. For example, Plaintiff is in exclusive possession
    of the entire package of documents that were presented at closing and, more specifically, the HUD-1
    Settlement Form. As discussed above, these documents are critical not only to the determination of
    Defendant’s eligibility for a mandatory settlement conference, but also to establishing the presence
    of any negligent behavior in the consummation of the loan. Therefore, Plaintiff is required to produce
    documents which would allow Defendant to submit an informed opposition to Plaintiff’s motion
    including the documents listed in paragraphs 8 and 16 of Defendant’s Request for Production of
    15 Terranova v. Emil, 20 N.Y.2d 493, 497 [1967]
    6
    [* 6]
    Documents.16
    Accordingly, it is hereby:
    ORDERED, that Plaintiff Wells Fargo Bank’s motion for summary judgment to foreclose
    on the mortgage is denied with leave to renew; and it is further
    ORDERED, that Defendant Ralph Leguillow’s motion to submit an amended answer is
    granted; and it is further
    ORDERED, that Defendant’s motion to compel production of documents is granted to the
    extent that Plaintiff shall provide:
    The complete loan and closing files relating to the subject mortgage, including
    underwriting documentation, file notations, telephone logs, and correspondence.
    All documents notes correspondence or e-mails that were prepared by, commissioned
    by, mention, comment upon, describe, or refer to the originator of the subject
    mortgage, CTX Mortgage Company, LLC or its agents, that relate to the subject
    mortgage, including any loan applications, underwriting documents, appraisals,
    broker price opinions, or loan purchase agreements.
    and it is further;
    ORDERED, that the amended answer annexed to Defendant’s papers as Exhibit A is deemed
    served; and it is further
    16 Exhibit C, Defendant’s Cross-Motion to Permit Amendment and Compel Production
    7
    [* 7]
    ORDERED, that the parties return to DCM Part 3 on Tuesday, April 13, 2010 at 9:30a.m.
    for a preliminary conference.
    ENTER,
    DATED: March 9, 2010
    Joseph J. Maltese
    Justice of the Supreme

  318. NY JUDGE SCHACK DENIES THE BAUM FORECLOSURE MILL AGAIN!!!!!!

    Supreme Court, Kings County

    Lasalle Bank N.A. AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET- BACKED CERTIFICATES, SERIES 2007-1, Plaintiff,

    against

    Hubert Smith, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST FRANKLIN FINANCIAL CORP., et. al., Defendants.

    35207/07

    Appearances:

    Plaintiff

    Heather Johnson, Esq.

    Steven J. Baum, PC

    Amherst NY

    Arthur M. Schack, J.

    The instant motion by plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 (LASALLE), in this mortgage foreclosure action, upon the default of all defendants, for: a judgment of foreclosure and sale; granting subordinate mortgagee defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR FIRST FRANKLIN FINANCIAL CORP. (MERS) relief pursuant to Real Property Actions and Proceedings Law (RPAPL) §§ 1351 (3) and 1354 (3); and related relief; for the premises located at 2741 Fulton Street, Brooklyn, New York (Block 3664, Lot 52, [*2]County of Kings) is denied without prejudice, with leave to renew the instant motion, within sixty (60) days of this decision and order, with submission of:

    (1) an “affidavit of facts,” in compliance with the statutory requirements

    of CPLR § 3215 (f), for the instant first mortgage and note, executed by

    an officer of plaintiff LASALLE or someone who has a valid power of

    attorney from plaintiff LASALLE, and if necessary a properly offered

    copy of a pooling and servicing agreement between LASALLE and its

    mortgage servicer;

    (2) an “affidavit of facts,” in compliance with the statutory requirements

    of CPLR § 3215 (f), for the subordinate mortgage and note, executed by

    an officer of subordinate mortgage defendant MERS or someone who has

    a valid power of attorney from subordinate mortgage MERS; and

    (3) affirmations by both Steven J. Baum, Esq., the principal of Steven J.

    Baum, P.C., plaintiff LASALLE’s counsel, and Elpiniki M. Bechakas,

    attorney of record for subordinate mortgagee defendant MERS, who is

    also an attorney employed by Steven J. Baum, explaining whether

    plaintiff LASALLE and subordinate mortgagee defendant MERS

    consented to simultaneous representation by Steven J. Baum, P.C.,

    with “full disclosure of the implications of the simultaneous representation

    and the advantages and risks involved.”

    Background
    Defendant HUBERT SMITH (SMITH) purchased the subject premises for

    $550,000.00 and closed on February 16, 2007. He received 100 percent financing from FIRST FRANKLIN FINANCIAL CORP. Defendant SMITH executed two notes and mortgages at the February 16, 2007 closing; the subject first mortgage with 80 percent financing, borrowing $440,000.00 from FIRST FRANKLIN FINANCIAL CORP.; and, the subordinate second mortgage and note with 20 percent financing, borrowing $110,000.00 from FIRST FRANKLIN FINANCIAL CORP. MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., recorded the instant $440,000.00 mortgage and note on April 25, 2007, in the Office of the City Register of the City of New York, City Register File Number (CRFN) 2007000213842. The subordinate $110,000.00 mortgage and note were recorded immediately after the subject mortgage and note, on April 25, 2007, in the Office of the City Register of the City of New York, CRFN 2007000213843.

    Defendant SMITH defaulted in his mortgage loan payments after making only one payment, on April 1, 2007. MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP. assigned the instant nonperforming mortgage and note to plaintiff LASALLE, on August 7, 2007. This assignment was recorded in the office of the City Register of the City of New York, on September 26, 2007, CRFN 2007000493535. Plaintiff LASALLE, on September 19, 2007, commenced the instant foreclosure action by filing the summons, complaint and notice of pendency with the Kings County Clerk.

    This action was randomly assigned to an Acting Justice of the Supreme Court, Kings County, who granted plaintiff LASALLE an order of reference on April 3, 2008. The Referee appointed pursuant to the April 3, 2008 order prepared a report, dated April 29, 2008, in which [*3]he found that defendant SMITH owed plaintiff LASALLE $496,128.83 for principal, interest, taxes, hazard insurance, and late fees, through July 9, 2008. Subsequently, plaintiff LASALLE moved, on December 19, 2008, for a judgment of foreclosure and sale. The Acting Justice to which this case had been assigned was assigned to another Court in late 2009. Thus, the instant matter was randomly assigned to me, after a review of the instant motion by the Kings County Supreme Court Foreclosure Department. The Foreclosure Department submitted the instant motion to me on March 16, 2010.

    I reviewed the instant motion and discovered that plaintiff LASALLE’s moving

    papers, for a judgment of foreclosure and sale, failed to present an “affidavit made by the party,” pursuant to CPLR § 3215 (f). The instant motion papers contain an “affidavit of merit and amount due,” dated July 8, 2008, by Bryan Kusich, “Vice President of HOME LOAN SERVICES, INC., Attorney in Fact for” plaintiff LASALLE. Attached to plaintiff’s moving papers is a “Limited Power of Attorney,” dated April 10, 2007, from an entity with a name different from that of the plaintiff, “LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR MERRILL LYNCH FIRST FRANKLIN MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 [Emphasis added].” The instant case does not deal with “MERRILL LYNCH FIRST FRANKLIN MORTGAGE LOAN TRUST” [Emphasis added].
    Further, even if the limited power of attorney allowed for HOME LOAN SERVICES, INC. to act for the correct mortgage loan trust, the limited power of attorney submitted is a photocopy, not an original document. Plaintiff’s counsel failed to certify that the power of attorney had been compared with the original document and found to be a true and complete copy, pursuant to CPLR § 2105.

    Moreover, the limited power of attorney, even if issued by the correct mortgage loan trust, authorizes HOME LOAN SERVICES, INC. to act, pursuant to a December 1, 2006 “Pooling and Servicing Agreement for the purpose of performing all acts and executing all documents in the name of the Trustee.” Plaintiff’s counsel failed to submit with its moving papers the original or a certified copy of the December 1, 2006 Pooling and Servicing Agreement. All that the Court received are several pages, with many redactions, from an uncertified copy of the March 1, 2007 Pooling and Servicing Agreement with respect to the “MERRILL LYNCH FIRST FRANKLIN MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 [Emphasis added]. The defective limited power of attorney submitted to the Court refers to the December 1, 2006 Pooling and Servicing Agreement, not the March 1, 2007 Pooling and Servicing Agreement. The Court requires either the entire original Pooling and Servicing agreement, or a certified copy of the entire document, to determine if HOME LOAN SERVICES, INC., as attorney in fact, is empowered to give an affidavit of facts.

    Also, the moving papers contain an affirmation by Elpiniki M. Bechakas, Esq., “the attorney of record for” defendant subordinate mortgagee MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., requesting that the Court direct the Referee to pay MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., pursuant to RPAPL §§ 1351 (3) and 1354 (3), “the sums necessary to satisfy its mortgage to the extent the surplus proceeds of the sale will allow.” Ms. Bechakas submitted an uncertified copy of a December 26, 2007-“affidavit of merit and amount due subordinate mortgagee,” by Bryan Kusich, “Vice President of HOME LOAN [*4]SERVICES, INC., as servicer for MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., a defendant herein.” Thus, Mr. Kusich is the incestuous servicer for both plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP. Ms. Bechakas’ failed to present to the Court a power of attorney by an officer of MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., granting HOME LOAN SERVICES, INC. a power of attorney to execute affidavits of merit on its behalf.

    Finally, for reasons unknown to this court, Ms. Bechakas, the attorney of record for subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., failed to disclose to the Court that she is employed by plaintiff’s counsel, Steven J. Baum, P.C. My March 17, 2010 examination of the Office of Court Administration’s Attorney Registry reveals that Ms. Bechakas, admitted in the Fourth Department in 1991, lists her business address as “Steven J. Baum, P.C., 220 Northpointe Pkwy, Ste G., Amherst, NY 14228-1894.” As noted above, Steven J. Baum, P.C. is the attorney for plaintiff LASALLE. The Court is concerned that the simultaneous representation by Steven J. Baum, P.C., of both plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., is a conflict of interest in violation of 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” in effect when plaintff LASALLE moved in December 2008 for a judgment of foreclosure and sale.

    Discussion

    Plaintiff LASALLE failed to meet the clear requirements of CPLR § 3215 (f) for a

    default judgment.

    On any application for judgment by default, the applicant
    shall file proof of service of the summons and the complaint, or

    a summons and notice served pursuant to subdivision (b) of rule

    305 or subdivision (a) of rule 316 of this chapter, and proof of

    the facts constituting the claim, the default and the amount due

    by affidavit made by the party . . . Where a verified complaint has

    been served, it may be used as the affidavit of the facts constituting

    the claim and the amount due; in such case, an affidavit as to the

    default shall be made by the party or the party’s attorney. [Emphasis

    added].

    Plaintiff LASALLE failed to submit “proof of the facts” in “an affidavit made by the party.” The affidavit of merit submitted by Bryan Kusich, Vice President of HOME LOAN SERVICES, INC. failed to have a valid power of attorney for that express purpose. The power of attorney is from LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR MERRILL LYNCH FIRST FRANKLIN MORTGAGE LOAN TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1 [Emphasis added],” not from plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1.

    If plaintiff LASALLE renews its motion for a judgment of foreclosure and sale with related relief, within sixty (60) days of this decision and order, it must present a proper power of attorney to the Court, and if the renewed motion refers to a pooling and servicing agreement, the [*5]Court needs a properly offered copy of the pooling and servicing agreement, to determine if the servicing agent may proceed on behalf of plaintiff. (Finnegan v Sheahan, 269 AD2d 491 [2d Dept 2000]; Hazim v Winter, 234 AD2d 422 [2d Dept 1996]; EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 (A), [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201 (A) [Sup Ct, Suffolk County 2006]).

    Further, if plaintiff’s counsel submits copies of documents, such as a power of attorney or a pooling and servicing agreement, counsel must comply with CPLR § 2105, which states that “[w]here a certified copy of a paper is required by law, an attorney may certify that it has been compared by him with the original and found to be a true and complete copy.” Thus, plaintiff’s counsel can certify the genuineness of a copy of a document. (See Security Pacific Nat. Trust Co. v Cuevas, 176 Misc 2d 846 [Civ Ct, Kings County 1998]).

    With respect to directing the Referee to pay subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., “the sums necessary to satisfy its mortgage to the extent the surplus proceeds of the sale will allow,” Ms. Bechakas is correct. My inspection of the New York City Department of Finance’s Automated City Register Information System (ACRIS) shows only two open mortgage liens on the subject premises – plaintiff LASALLE’s senior lien and the junior lien of MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP. Thus, the only subordinate mortgagee, MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., is entitled to any surplus money to satisfy its lien. (RPAPL §§ 1351 (3) and 1354 (3); Washington Mut. Home Loans, Inc. v Jones, 27 AD3d 728 [2d Dept 2006]). RPAPL § 1351 deals with judgments of foreclosure and sale and states in (3):

    If it appears to the satisfaction of the court that there exists

    no more than one other mortgage on the premisis [sic] which is then

    due and which is subordinate only to the plaintiff’s mortgage but is

    entitled to priority over all other liens and encumbrances except those

    described in subdivision 2 of section 1354, upon motion of the holder

    of such mortgage made without valid objection of any other party, the

    final judgment may direct payment of the subordinate mortgage debt

    from the proceeds in accordance with subdivision 3 of section 1354. RPAPL § 1354 deals with the distribution of the proceeds of foreclosure sales and states in (3):

    The officer conducting the sale after fully complying with the

    provisions of subdivisions one and two of this section and if the

    judgment of sale has so directed shall pay to the holder of any

    subordinate mortgage or his attorney from the then remaining proceeds

    the amount then due on such subordinate mortgage, or so much as

    the then remaining proceeds will pay and take the receipt of the holder,

    or his attorney for the amount so paid, and file the same with his report

    of sale. [*6]

    Therefore, if plaintiff LASALLE renews its motion for a judgment of foreclosure and sale with related relief, within sixty (60) days of this decision and order, and submits a properly executed affidavit of merit from an officer of subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., or someone with a valid power of attorney from MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., the Court will direct the Referee in a judgment of foreclosure and sale with related relief to pay any surplus money to MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., to the extent that it will either satisfy fully satisfy the subordinate mortgage or be credited to the balance owed upon the instant subordinate mortgage.

    Last, a conflict of interest exists in the instant action. Plaintiff’s counsel represents both plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP. 22 NYCRR § 1200.24, of the Disciplinary Rules of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” in effect in December 2008, when the instant motion was made, states in relevant part:

    (a) A lawyer shall decline proffered employment if the exercise of

    independent professional judgment in behalf of a client will be or is

    likely to be adversely affected by the acceptance of the proffered

    employment, or if it would be likely to involve the lawyer in representing

    differing interests, except to the extent permitted under subdivision (c)

    of this section. (b) A lawyer shall not continue multiple employment if the

    exercise of independent professional judgment in behalf of a client

    will be or is likely to be adversely affected by the lawyer’s representation

    of another client, or if it would be likely to involve the lawyer in

    representing differing interests, except to the extent permitted under

    subdivision (c) of this section. (c) in the situations covered by subdivisions (a) and (b) of this

    section, a lawyer may represent multiple clients if a disinterested lawyer

    would believe that the lawyer can competently represent the interest

    of each and if each consents to the representation after full disclosure

    of the implications of the simultaneous representation and the

    advantages and risks involved. [Emphasis added]

    For the instant action to proceed, both plaintiff LASALLE and subordinate

    mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., need to explain to the Court, with affirmations by both Steven J. Baum, Esq., the principal of Steven J. Baum, P.C., and Elpiniki M. Bechakas, Esq., whether both plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., consented [*7]to simultaneous representation in the instant action, with “full disclosure of the implications of the simultaneous representation and the advantages and risks involved [22 NYCRR § 1200.24 (c)].”

    The Appellate Division, Fourth Department, the Department where both Mr. Baum and Ms. Bechakas are registered, censured an attorney for, inter alia, violating 22 NYCRR § 1200.24, by representing both a buyer and sellers in the sale of a motel. (In re Rogoff, 31 AD3d 111 [2006]). The Rogoff Court, at 112, found that the attorney, “failed to make appropriate disclosures to either the sellers or the buyer concerning dual representation.” Further, the Court, at 113, censured the attorney, after it considered the matters submitted by respondent in mitigation, including:

    that respondent undertook the dual representation at the insistence of

    the buyer, had no financial interest in the transaction and charged the

    sellers and the buyer one half of his usual fee. Additionally, we note

    that respondent cooperated with the Grievance Committee and has

    expressed remorse for his misconduct.

    If the Court receives upon the renewal of the instant motion for a judgment of foreclosure and sale and related relief, within sixty (60) days of this decision and order, affirmations from both Mr. Baum and Ms. Bechakas, explaining: why Steven J. Baum, P.C. simultaneously represented both plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP.; whether Mr. Baum and Ms. Bechakas violated 22 NYCRR § 1200.24, the Disciplinary Rule of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” in effect when the instant motion for a judgment of foreclosure and sale was made; and, whether plaintiff LASALLE and subordinate mortgage defendant MERS, as nominee for FIRST FRANKLIN FINANCIAL CORP., consented to their simultaneous representation by Steven J. Baum, P.C., with “full disclosure of the implications of the simultaneous representation and the advantages and risks involved.”; the Court will grant plaintiff LASALLE’s renewed motion for a judgment of foreclosure and sale, with related relief.

    Conclusion
    ORDERED, that the application of plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1, for an order of reference for the premises located at 2741 Fulton Street, Brooklyn, New York (Block 3664, Lot 52, County of Kings), is denied without prejudice; and it is further

    ORDERED, that leave is granted to plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1, to renew its application for an order of reference for the premises located at 2741 Fulton Street, Brooklyn, [*8]New York (Block 3664, Lot 52, County of Kings), within sixty (60) days of this decision and order, provided that plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1, submits to the Court:

    (1) an “affidavit of facts,” in compliance with the statutory requirements

    of CPLR § 3215 (f), executed by an officer of plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-

    BACKED CERTIFICATES, SERIES 2007-1, or someone who has a

    valid power of attorney from plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE

    LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED

    CERTIFICATES, SERIES 2007-1, and if necessary a properly offered

    copy of a pooling and servicing agreement between LASALLE and its

    mortgage servicer;

    (2) an “affidavit of facts,” in compliance with the statutory requirements

    of CPLR § 3215 (f), for the subordinate mortgage and note, executed by

    an officer of subordinate mortgage defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., as nominee for FIRST FRANKLIN FINANCIAL CORP., or someone who has a valid power of attorney from subordinate mortgage defendant MORTGAGE ELECTRONIC

    REGISTRATION SYSTEMS INC., as nominee for FIRST FRANKLIN FINANCIAL CORP., and

    (3) affirmations by both Steven J. Baum, Esq., and Elpiniki M. Bechakas,

    Esq. explaining: whether Steven J. Baum, Esq., Elpiniki M. Bechakas, and

    Steven J. Baum, P.C. violated 22 NYCRR § 1200.24, the Disciplinary Rule

    of the Code of Professional Responsibility, entitled “Conflict of Interest; Simultaneous Representation,” in effect when the instant motion for a

    judgment of foreclosure and sale was made, by acting as counsel for both

    plaintiff, LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE

    FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1,

    MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES

    2007-1, and subordinate mortgage defendant MORTGAGE

    ELECTRONIC REGISTRATION SYSTEMS INC., as nominee for FIRST FRANKLIN FINANCIAL CORP.; and, whether plaintiff, LASALLE [*9]

    BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST

    FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN

    ASSET-BACKED CERTIFICATES, SERIES 2007-1, and subordinate

    mortgagee defendant, MORTGAGE ELECTRONIC REGISTRATION

    SYSTEMS INC., as nominee for FIRST FRANKLIN FINANCIAL

    CORP., consented to their simultaneous representation by Steven J.

    Baum, P.C., with “full disclosure of the implications of the simultaneous

    representation and the advantages and risks involved.”

    This constitutes the Decision and Order of the Court.

    ENTER

    ___________________________

    HON. ARTHUR M. SCHACKJ. S.

  319. Former Philadelphia Phillie (and Met) Lenny Dykstra, also known simply as “Nails,” has sued JPMorgan Chase for $100 million over mortgages he obtained during the housing boom.

    Dykstra claims he was “fraudulently induced into borrowing more money than he could afford,” leading to his eventual bankruptcy.

    The lawsuit involves $20.5 million in mortgage loans, $12 million of which came from former lending giant WaMu, now owned by Chase, and another $8.5 million in the form of a second mortgage.

    The loans were used to purchase former hockey great Wayne Gretzky’s six-bedroom, eight-bath mansion in Thousand Oaks, California for $17.4 million in 2007 and pay off loans tied to another home in Simi Valley, CA.

    Per the lawsuit, he was “steered” to a different lender for the second mortgage, though it’s standard practice to get a piggyback second from lenders that specialize in such loan programs.

    The second mortgage was due in full after just one year, and was expected to be refinanced, though WaMu apparently reneged on the deal, likely because of the impending real estate crash.

    The monster super-duper jumbo loans left Dykstra with a massive $135,000-a-month mortgage payment, which eclipsed the $125,000 he made in monthly income.

    Talk about a debt-to-income ratio fail.

    Sounds like he used stated income to get the deal done, considering he was an “entrepreneur” with all types of stuff going on.

    Dykstra says he was eventually forced into a number of unfavorable transactions to make good on the $8.5 million mortgage, causing him to take on even more debt.

    He was also involved in more than 20 lawsuits related to his entrepreneurial activities, which led to his bankruptcy filing last July.

    The Thousand Oaks estate is being listed by Ewing & Associates for a hefty $14.9 million.

    Steven K. Kop
    Attorney at Law
    bluejaylaw@gmail.com

  320. Jim,

    It would be helpful if the owner prior to you “has a dog” in the FIGHT.

    Does his mortgage have a “due on sale” clause? They will likely use that against you. Would the prior owner in a worst case consider going BK? Not sure what state your are in…..but Californians have their best(or only) chance in that proceeding a LOT OF THE TIME.

    Perhaps some kind of POA can be crafted to give you absolute power to litigate. You should talk to an attorney about these options if at all possible.

  321. SECURITIZATION AND FORECLOSURE DO NOT MIX WHEN YOU CONSIDER THE FACTS:
    By M.Soliman
    http://www.foreclosureinfosearch.com

    I believe your loan is owned by the indenture and “managed” by the trust executor or trustee. That means owner of the entire assert whereby anything less is a lease, hypothication or high leverage debt upon debt transaction. The entire cash flow that forms the revenue is from the business entity holding mortgages in a trust.

    Auditing RESPA, TILA and Section 32 violations are worthless and compounded valueless in a limited jurisdiction or bench trial in a judicial foreclosure proceedings. This situation lends itself to racketeering, alleged in the recovery process. Lawyers need to come back to the present to seek cause of action and forget about the loans origination issues. Broadly defined, this collective trustee and lender effort is the operation of an illegal business (racket).

    A lender, bank, mortgage company using commercial lines of credit are all permitted to collateralize their assets. The problems there are twofold.

    1) The lender will pay a normal dividend.
    2) The capitalization structure includes paying off a warehouse lender.

    The first mention offers nothing exciting to a boring banks current stock offering. The second is a problem where the outstanding warehouse bank amount outstanding must be reimbursed making the return on investment even more boring.

    So the idea of offering a Citi or B of A dividend was never an option. Instead, the loans are pooled into one large asset and are sold and transferred from the lender to a new entity. That business entity is a “SPE” or special purpose entity usually reserved for offshore investment and holdings. Thus, here is the reason for appointing a nominee such as MERS (don’t fight it) and the language found in the “deed” about appointing MERS who the nominal beneficiary for the security. That security is stock, black gold, Texas “T”. It’s anything but the deed of trust or mortgage you signed.

    The trust is self contained and impermeable not much different than a closed end fund. The revenue is set based on the weighted average coupon and borrower payments. Your payment is isolated from others yet in no way identifiable the trust. It’s the lender who sold the loans who normally retains the collections efforts.

    It’s the master warehouse agreement that demands a payment in full remuneration under a pass through method of reporting. Here we can see the clandestine and secretive or opaque collections opportunity which lender servicing agents fail to realize are the earnings of a registered offering governed by the Securities Exchange Commission.

    Aside from its silence you have the right to bring inquiry under FDIC regulatory authority and under the passage of FIERRIA. A Defendant will bring this action seeking relief upon which no limitation for jurisdiction can be imposed and whereby the defendant shall state its claim. An official who holds office or agency cannot have transferred a defendants rights or appear to give the impression as to having transferred such rights in accordance with the enforcement that falls under FDIC jurisdiction.

    Again, no government or an officer or employee thereof can be shown to have acted in an official capacity or person in a position of trust or while acting under color of legal authority can circumvent a person or here a homeowners rights.

    Therefore, why are these cases getting thrown out in court while others are not? As prescribed by the law and under certain legislative enactments, these matters shall not be dismissed nor relief therein be denied on the ground that it is against the County and or State of California and or even the United States or that the United States is an indispensable party. The thinking here causes one to reconsider the jurisdictional and highly diverse issues that cannot be left out of the defendant’s arguments.

    The role and function of the SEC and for overseeing the servicing agent pursuant to regulations found over 500 pages of 1122 AB will reinforce the same argument of diversity.

    Therefore, the conflict with a servicing agent who is less than arms and a recourse provision for default is destined to fail in the long run. It does not work where the lenders agent is entitled to collect the payments for assets sold and whereby the most salient piece of the trusts success is from the repurchase provisions for loans that fail or default. The early prepayment mechanism is a “repayment” requirement that includes insurance and from the inside and the out of the trusts and it inner workings.

    The lender who is a seller who then becomes a depositor maintains recourse for any outstanding due for balances on account for the assets held in trust.

    I opine the only feasible and acceptable method of liquidating bad assets is for the trust to eat the loan. I guess if the seller repurchases the loan it may have standing for a foreclosure but that repurchase involves an algorithmic calculation pertaining to multiples of capital, derecongnition at funding, and unwinding stock for securities.

    The concept for a deleted loan suggests the right to enforce a repurchase can only happen upon immediately tagging the loan as impaired or “deleted”. Therein the lender cannot carry a bad loan out over 12 months waiting to foreclose. This bizarre method of sitting on borrower loans those are delinquent is a fraud for sure. Buy it back or don’t but it back but mark the asset “impaired” and classify the asset accordingly. If you cannot buy it back use additional proceeds and pay it off Mr. Trustee. Then YOU can sue the lender, seller, depositor whatever for breach.

    Again, there is no right to foreclose! You certainly cannot foreclose at a more opportune time.

    These indentures are bankrupt insulate but the trust published practices put into place are allowing good attorneys to permeate the indenture. The idea of your loan being replaced by another loan of equal value is predatory, discriminatory and downright unlawful.

    Stalling on a repurchase commitment and waiting for a loan considered to have similar valuation components for the defaulted loan is another example of WTF meaning “Where’s the Fed”.

    Consider where the assets value is established using multiple variables including the note and effective coupon, or WAC, WAM and CPR. The “Culling” practice is wrong and causes the best attorneys in America to envision the score to be made for the damages one could claim against lender discriminatory practices. Not as in denying acceptance but as in overfunding the loan and dropping all credit qualifying standards solely for attracting borrowers and while replacing bad loans with loans the borrower could never afford.

    We have a major statutory problem here Wall Street and the remedy is enforcement. Enforcement efforts are being overlooked by the Secretary of the treasury and other agencies that are known to seek out securities trouble makers. Their objectives appear to be hyper focused on home purchases and refinance activity to cure the problem. That is to say, resume culling bad loans with new loans and continue to pursue an adverse claim for possession under an obscure and ridiculous right by “pro tanto” and eminent domain.

    Not one argument to be made here in this discussion is ever afforded the defendant against a insulated beneficiary in non judicial or even procedurally overbearing judicial foreclosure proceedings.

    My experience to date where broadcasting this massage of is consumer fear, ignorance and benevolence. Those brave enough to venture into the corollary known as securitization will find the same claims for racketeering which can include almost any pattern of illegal activity(, such as illegal gambling, prostitution rings, drug organizations) including “protection rackets.” Protection rackets involve some criminal organization extorting money from businesses for “protection” against crimes, which would be committed by the criminal organization itself.

    The message I deliver is often discarded for hopes of a modification after four failed attempts by the servicing agent who does not own the loan and who offers you help that is impossible. So they call time and time again to say the file you sent in was lost.

    Since January the government is moving these trust assets into Fannie and Freddie confines. What does a bail out plan have to do with the assets of the trust and its shareholders anyway (hint, hint). None the less the entire mortgage industry and the business it booked appear to all have been government insured. The fed has now lowered the rate on long term borrowing to near zero and solely for repurchasing trust assets.

    The assets in default are none the less subject to lender foreclosure until the time they are repurchased. So therefore I ask who foreclosed on you. Read the deed upon sale and see for you where there is zero transfer tax, highest bidder is the transferee and beneficiary who are one in the same with the transferor. You cannot bid at sale under the terms set forth by FASB and under GAAP in an open market transaction using a credit bid or post dated check. You for sure cannot bid using a note as tender.

    I have had repeated success working with attorneys and their clients using these facts for arguments. But referring to lenders as culprits and predatory villains or suggesting judges are less than ethical is an example of the ignorance permeating the market.

    The rush by desperate homeowners to purchase a RESPA audit is even more debilitating and off base.

    The parties selling the loans it originated transfer these assets as closed “Whole Loan” assets. I believe the note you signed was tendered in exchange for stock valued at multiples of 8:1. These lenders are licensed originators who earn a gain on sale for accounting and reporting purposes, but only upon the delivery and transfer of the assets. The party selling the loan, your loan, cannot influence the events of the transaction subsequent to sale. You lender cannot participate in the foreclosure process especially after walking on its recourse provisions. (Make him stop – someone please!)

    In other words, FAP 140 and revised FAS FAP 140 cannot direct, nor redirect, cause to neither shift burden of responsibility nor circumvent a fiscal accountability by influencing a foreclosure.

    The accounting rules set forth under GAAP and various pronouncements by FASB prohibit such actions and constitute the alleged initial sale to be void. Therefore, a lender can be argued in favor of the defense whereby it has no real standing to foreclose. The fact the lender may have no standing considers the loss of the right to a Power-of-sale or the other extreme for a borrower regaining the home free and clear. I won’t say which of the two extremes for arguments I am pursuing for clients.

    I will say the fact is these foreclosures are riveted with strange, unacceptable and judicially challenges to a trustees transfer of title. That’s a simple clue and basis for building your arguments. Under federal law, racketeering is covered by the Racketeer Influenced and Corrupt Organizations (RICO) Act. This law is so broad in scope that almost any criminal who commits multiple crimes can be charged under it. The law lists 35 crimes (murder, illegal gambling, drug dealing, kidnapping, etc.). Any person or group who commits 2 of those crimes in a 10 year period with the same purpose or effect, in a way that affects interstate commerce, can be charged with racketeering.

    Sarbanes Oxley will raise the specter of doubt as to the Trustee’s roles, deceptiveness and having been a victim of the process. The legislation calls for prosecution of the attorney’s office where acting as a trustee and having encouraged a non transparent recovery program in line with the lenders’ desires and considered non compliant.

    If the original sale of the asset (the loan) to the investor stands the lender is lost forever to the transaction. Derecongnition is an accounting term that fails if the lender emerges in a recovery or foreclosure. The effect of derecongnition or loans for cash and cash for securities sale is recast as debt. Therein the lender was borrowing against existing inventory or assets (at time of sale) and therefore will cause the trust to be subject to receivership.

    Lenders are playing a dangerous game with the SEC assuming the enforcement ever arrives. Here’s another WTF award meaning “Where’s the Fed”.

    I am referring to the non transparent and deceptive practices perpetrated against the county and its county recorders across America. There’s a weak lender defense here and it’s called limited jurisdiction. It’s a judicial loophole I am sad to say is being upheld by the courts.

    I believe that attorneys have gone so long relying on jurisdiction and maneuvering in court they no longer understand the merit of the defendant’s response.

    This legislative dilemma makes void the constitutional protections enacted by congress and the senate dating back to Garn St Germain. Even worse is the fact the condition is causing lenders to circumvent the published accounting rules and scrutiny of the courts. This is the situation I believe to be the most damaging component of the long list of affirmative defenses available for the foreclosure victim offers.

    Under RICO, any person who is found guilty of racketeering can get up to 20 years in prison and/or up to $25,000 in fines. Furthermore, any money or property used to commit the crimes, or gained from them, is forfeited to the government. RICO also allows for individuals or businesses harmed by racketeering to sue for compensation. All that needs to be proven is the existence of a criminal enterprise, and some relationship between the enterprise and the defendant.

    The law allows anyone injured to recover 3 times the amount of actual damages suffered. So, if a criminal enterprise causes $1,000 in harm, the person harmed can recover $3,000 against them.

    M.Soliman
    expert.witness.com

  322. Jim,
    In my opinion you have every right to defend the foreclosure.
    1) You are in possession of the property.
    2) You have an interest in the property.

    marcus@foreclosureProSe.com

    —————————————————–
    Author: Jim
    Comment:

    Hi,
    I need to know if I can defend against foreclosure in the following scenerio. A year ago, I acquired a property as my primary residence. I acquired it ’subject to’ the underlying mortgage. That means title transfered, but the mortgage stayed in place. I took over payments at that point. I have faithfully made all payments, and the goal is to refinance it at some point.

    Unfortunately, I recently lost my job and have gotten behind on payments. I need to know if I can defend title against foreclosure, should it come to that. I am the one on title, but the previous owner is the one on the mortgage. Has anyone ever run into this scenerio?? Can I use the strategies on this blog to protect myself?? I put down a big down payment, and I dont want to lose it. I want to keep the house.

  323. Check this lawsuit out…..very interesting……Mers vs Mers

    http://tmportal.uspto.gov/external/PA_1_0_LT/OpenPdfDownloadWindow

  324. John Crom

    http://www.all-foreclosure.com/procedures.htm

    check this list

  325. Servicers Wonder How Long Foreclosures Can Be Delayed

    By Amilda Dymi

    The ever-increasing delinquency-to-foreclosure timeline and the question of whether loan modifications really work, as well as the inevitability of a delayed next-wave of foreclosures were among themes under discussion at the Mortgage Bankers Association’s National Mortgage Servicing Conference in San Diego last week.

    At the conference National Mortgage News convened a roundtable of servicing executives at the show to share their thoughts on these topics and more.

    The participants generally sounded concerned about the current situation, especially given the rules the federal government, as well as many state governments, are imposing. While there has been talk of recovery in the market at large, executives that took part in the roundtable indicated they fear a continuing downward spiral from negative equity situations.

    Participating were Cary Sternberg, president of Excellon REO, a division of Titanium Holdings; Scott Goldstein, president of National Default Exchange Index; Richard Powers, senior vice president of real estate services for Altisource Portfolio Solutions; Ron Deutsch with Cohn, Goldberg and Deutsch; and Jim Satterwhite, EVP with Infusion Technologies.

    STERNBERG: Titanium Solutions, our sister company, has been very involved with in-home outreach for HAMP, also doing a lot of short sales, getting involved with the new HAFA and I’m the guy they’re trying to put out of business and keeping the people in their homes, and hopefully, before it gets to REO, they can do something. From my standpoint, at the conference, I’m interested to see if anybody’s got opinions on what else they can come up with to delay this foreclosure pipeline that has been building up for several years now. And I’m not being critical of the administration or the programs that they’re trying to do, but I think if we look at what’s happened, haven’t we already gone and modified loans for people that could qualify, or that even wanted to? How much longer can we postpone the inevitable? And if anybody’s got any insight, that’s one of the things I was looking forward to here in the meeting. If anybody’s got any good knowledge about that, I’d love to hear it.

    GOLDSTEIN: We do mortgage default processing for law firms in eight states … and we probably service the process files in 75% of a servicer’s portfolio, if they looked at it. And I agree with Cary, I think in the next year, the trend we’re going to be seeing is the term is going to be shadow inventory. And you’re hearing it a lot. It has different meanings all throughout the process. And now, you’re seeing just a long hose, with people stepping on it along the way from a shadow inventory started when they were first talking about the REO homes that hadn’t been put for sale yet. And then, they started talking about the shadow inventory of files that were delinquent, but not put into foreclosure yet. And now you’re seeing the shadow inventory that concerns me.

    There was an article last week where notice of default to sale in California used to be 146 days, now it’s 230 days. So really … this is kind of an inventory problem, where … files are just sitting at different stages, so it’s a long hose that’s being stepped on all along the way. And to address your question directly, how it’s going to shake out is there would be nothing that would surprise me going forward anymore. I sit and I say, half sarcastically, if we ended up with a national mortgage holiday, where they gave everyone two or three months of mortgage-free months, it wouldn’t shock me. And we were headed there because they’re trying to extend this process any way possible to stop all the different shadow inventories from actually coming through. But it does create a problem because the files build up for the servicers, and it’s hard to handle that many files.

    And that excuse for servicers, that we’re not staffed up enough, ended two years ago. You just can’t say that anymore. But the truth is, with these files just sitting and not being able to flush through the process and new ones coming in and not many going out, that is an issue.

    POWERS: I’d like to make a comment, if I could. And Cary, your question is an excellent question. It’s one of those where the question is much easier than the solution. And I think if you step back through the whole issue of modifications, before there was ever HAMP, modifications in general have had just a horrendous track record … right?

    STERNBERG: Right.

    POWERS: I mean they kind of just defer the problem, they never really solve it. And so that’s just the history … of modifications. Now, we’re full blown into doing modifications. It does sort of stem the flow a little bit, but it doesn’t do anything at the end of the line. And for me, the biggest thing is what you do about the negative equity? So the long pipe, the hose that you’re talking about, that’s the stuff that’s already in some degree of distress. There’s another subset that’s unknown, the folks that are still paying that have significant negative equity that are going to be coming into part of that shadow inventory that we haven’t even seen yet because … at some point they go, you know what? You’ve got declining rents. You’ve started looking at “What’s my economically rational decision to make? I walk away from the home and get as nice a home and I’m spending 20%, 30%, 40% less than I am on my housing payment today.” So all those are part of the problem, now.

    As far as the solution, I think the only way to get around it is to address … what’s happening with the equity situation. And that’s painful, it’s certainly painful for those who are paying their mortgages on time because it has a very depressing effect on home values, obviously. But I don’t know, I think that’s part of what has to happen because otherwise, we’re just kind of putting a little bit of a damper on the end of the flow.

    DEUTSCH: To your point that people who are underwater are now going to be walking away from their mortgages, potentially, when that happens, that goes into the pipeline, of course, of the additional foreclosures. That’s going to depress prices further. If prices get depressed further, there will be more people, then, that will walk away from their mortgages, and it’s spiraling down in sort of a pernicious way. So the situation, to me, is very, very serious. And in response to your question of what else can they throw at us, we’re seeing the feds throw things, but in addition to the feds, the states are now throwing. Maryland was a state where we used to be able to foreclose in 40 days. We’re now up to 50 or 60 days. In addition, there’s a new bill going through the legislature right now on an emergency basis to create mediation. What’s worse about the – the mediation, [is that] in and of itself, if it was written correctly, it wouldn’t be so bad. But how they’re writing it is certain forms have to be filed, it’s going to be signed on an emergency basis and the forms haven’t been developed yet. So that puts a complete halt on foreclosures, which I do believe is the legislature’s intention … to halt the foreclosures until after the election in November. And if there are no forms, we won’t be able to go forward, and it’s going to stop the whole system.

    SATTERWHITE: So we’re dealing with a number of our servicing clients, as well as the Realtor business partners, real estate professionals and business partners. The shadow inventory you’re speaking to, I think the next wave of that is going to be the short sale. Those are the ones that have already fallen out of the modification process. … With HAFA coming out, you’re beginning to see more of the servicers retrench back over the same loan that they’ve looked at already from a modification fallout to say, “OK, now there is a standardization and expectation by Treasury, in particular, as to how we should handle a fallout scenario.” So they’re literally going back through those, the fallout, portfolio fallout, to a certain extent, and looking at it.

    One particular servicer we’re talking to … has denials that they’ve done nothing with. So they’re kind of … looking for assistance … ahead of April 5, the start date, if you will, of HAFA. We have another client we’re speaking with has 60,000 of the same thing … So now, here comes some of the creativity. I mean, out of every crisis comes creativity. So I think where you’re going to see them getting ahead of the short sale, or ahead of the foreclosures rather and ahead of the walk always is really two fold.

    One, they’re going to start using more collateral intelligence. They’re going to use more data around actively listed assets, more data around FICO deterioration, and more data around runoff with depreciation in the market. They’re going to jump ahead of the early stage delinquency into the performing asset to say, FICO deteriorated X number of points within the last two quarters, depreciation has had a 20%, 25% hit in this market, this property has been for sale that I didn’t know was for sale prior to now, they’ve already basically said we’re stepping out of this situation, and what they’re beginning to engage upon with us is to put someone on the doorstep to investigate the nonretention act. So we’re going to start seeing more and more, I think on the front side of this, where there’s going to be a door-knock-type service, there’s going to be an extension of the service providers, such as ourselves, that says, Mr. Jones, we’re here, we know this is your situation. We know your house has been for sale for four months, let’s talk about a deed in lieu right now.

    They … would know the circumstances around subordinate liens, and they’ll literally be in capacity of executing a deed-in-lieu on the doorstep to kind of stop that flow on the front side of that. The other thing it does for the servicers, if you think about it, is it takes them out of the realm of debt forgiveness. Nobody likes talking about that topic now, nobody wants to sit there and go, to make this modification, I’m going to have to reduce this debt by $40,000. If you can jump ahead of it in that frame, then you’re avoiding that conversation all together.

    There was a forum in D.C. two or three weeks ago. There were two fairly predominant economists, but their point, ultimately, was unemployment has nothing to do with it. Unemployment compounds an exasperated situation, most certainly, but it’s the LTV that’s the driving force. So they showed quite a bit of data, they ran everything from an 8% to a 12% unemployment rate in markets, that showed the delinquency on a high LTV would be 125, 135, 150, it wasn’t affected by unemployment, it was affected by how upside down they were. So in fact, if you had someone that was 135% LTV or higher, that borrower, once they went 60 days delinquent, only 3% of them ever recovered. At 150% of LTV, it was zero. So it had nothing to do with whether the person had a job or not, it had to do with it was some stress in the family or their situation, the house next door becomes vacant, and they look at themselves going, “I’m $50,000 upside down, at some point, I have to send in the keys.”

    Other Editor’s Note stories.

  326. Marcus,
    Thanks for responding. I will see if there is a “Power to sell” clause. I am going to go to the courthouse and make a copy of everything there. I will also send a Qualified Written Request to the servicer, as you suggest. Thanks very much. You are the first one to actually offer advice and I greatly appreciate it.

    John

  327. Hi,
    I need to know if I can defend against foreclosure in the following scenerio. A year ago, I acquired a property as my primary residence. I acquired it ‘subject to’ the underlying mortgage. That means title transfered, but the mortgage stayed in place. I took over payments at that point. I have faithfully made all payments, and the goal is to refinance it at some point.

    Unfortunately, I recently lost my job and have gotten behind on payments. I need to know if I can defend title against foreclosure, should it come to that. I am the one on title, but the previous owner is the one on the mortgage. Has anyone ever run into this scenerio?? Can I use the strategies on this blog to protect myself?? I put down a big down payment, and I dont want to lose it. I want to keep the house

  328. Hi Everyone,
    I was wondering if anyone can help me with filing a quiet title action? I reside in California. My situation was that I was in a process or doing a loan modification and durning the process the lender forclosed on my property and sold it to a 3rd party. So I fought back and finally they reinstated my property back to me because they realized they made a mistake. ANyway I dont trust them anymore and I want to make sure I file something in court asap. I spoke with someone yesterday and they told me to go to court and file a quiet title action..but im so confused because I have no idea what it is..where to find one..and how it works. Please help.
    Thanks
    E-mail: helgaloans@yahoo.com

  329. John,
    Do you have a “Power of Sale” clause in your mortgage?
    That will determine if your foreclosure will be judicial or non-judicial.
    If I were you, I will first send a Qualified Written Request to the servicer. You can find sample on this site or I can forward you one if you would like.

    marcus@foreclosureProSe.com

  330. Frustrated in NC

    I have contacted three of the four “lawyers that get it” in NC and so far none have any interest in looking at my situation. I have a loan through “MidCarolina Bank” that was immediately snapped up by “CountryWide” and now is processed through Bank of America. The original closing documents list MERS as the ” beneficiary under this security instrument”. I am in a situation that I just can’t pay the payments anymore.

    After exhausting the list of “lawyers that get it” what do I do? None of the “lawyers who get it” expressed enough interest to even want to look at my documents. I am not asking for something for nothing. Is there anything to all this? Has anyone else run into a brick wall?

  331. “BAD FAITH” BY BANK SANCTIONED

    In re CLAWSON v. Indymac Bank Bankruptcy No. 08-45900 Adversary No. 09-4045 AN

    PRESIDING JUDGE NARRATIVE…….

    Protecting the integrity of the judicial process is at the heart of this matter. Over the past two years, the average number of adversary proceedings filed per month in the Oakland Division of this court is 37, and the average number of motions for relief from the automatic stay filed per month is some 318. A large percentage of these motions seek orders allowing lenders to go forward with foreclosures on debtors’ homes. At each weekly calendar of relief from stay motions, debtors plead with the court for assistance in obtaining a loan modification. Sometimes they have been unable to penetrate the lenders’ impenetrable phone tree to talk to a live person; or having reached someone at the other end of the line, they are unable to obtain answers to their inquiries after weeks or months of trying; or they have submitted paperwork to the lender, only to be told that more papers are required, or that the papers they’ve already submitted have been lost.

    Many, perhaps most, of these debtors are not good candidates for a loan modification. But that does not excuse the indifferent and sometimes deplorable treatment they too often receive at the hands of their lenders; nor does it obviate the desperate and helpless condition in which they find themselves. Indeed, never in my 27 years on the bankruptcy bench have I witnessed such financially and emotionally distressed families as I have seen pass through this court over the past two years.

    Ultimately, there is little this court can do to facilitate the loan modification process or right the wrongs that debtors may have suffered from that process. That is particularly true in chapter 7 cases such as this, where the automatic stay lifts upon entry of the discharge, regardless of what the court does with a lender’s motion for relief from the automatic stay. See 11 U.S.C. § 362(c)(2)(C).

    BUT WHEN ATTORNEYS COME BEFORE THE COURT AND PLAY “FAST AND LOOSE” WITH THE TRUTH, OR RELY ON THE BUREAUCRATIC OBFUSCATIONS OF THEIR CLIENTS TO DODGE COMMITMENTS THEY HAVE MADE, THIS COURT IS REQUIRED TO ACT TO PROTECT THE INTEGRITY OF ITS PROCESSES. If the court cannot rely on and trust the authority and words of the lawyers that appear before it, it cannot effectively handle the increasingly heavy volume of work confronting it, thus risking systemic collapse. That trust has been breached in this adversary proceeding, and the remedy of judicial estoppel perfectly suits the facts presented.

    CASE FILE:

    http://www.scribd.com/doc/28277204/Onewest-Essopped-by-Indymac-Federal-Agreements-INDYMAC-FEDERAL-BANK-FSB-JUDICIAL-ESTOPPEL-Sanctions

  332. Hey Marcus: Would you send me the florida cases when you find them.

    Thanks so much

    xbrooklynite21@yahoo.com

  333. Jeff,
    I don’t know what state your from, but I am getting to file my quiet title action in Florida. Next week I will be spending some time at the county court house reviewing past cases.
    Give me your email, and I will keep you updated.

    marcus@foreclosureProSe.com

  334. There has been alot of conversation in reference to “QUIET TITLE” on this blog and others. Has anyone been involved in filing for Quiet Title or know of any cases that are available to review.

    Thank you.

  335. I meant to say, you CAN’T fool everybody all the time. :-)

  336. Drip…drip..the truth is coming out. You can fool everybody all the time.
    ——————————————
    Report Details How Lehman Hid Its Woes
    03/12/10 –NYTimes

    It is the Wall Street equivalent of a coroner’s report — a 2,200-page document that lays out, in new and startling detail, how Lehman Brothers used accounting sleight of hand to conceal the bad investments that led to its undoing.

    The report, compiled by an examiner for the bank, now bankrupt, hit Wall Street with a thud late Thursday. The 158-year-old company, it concluded, died from multiple causes. Among them were bad mortgage holdings and, less directly, demands by rivals like JPMorgan Chase and Citigroup, that the foundering bank post collateral against loans it desperately needed.

    But the examiner, Anton R. Valukas, also for the first time, laid out what the report characterized as “materially misleading” accounting gimmicks that Lehman used to mask the perilous state of its finances. The bank’s bankruptcy, the largest in American history, shook the financial world. Fears that other banks might topple in a cascade of failures eventually led Washington to arrange a sweeping rescue for the nation’s financial system.

    According to the report, Lehman used what amounted to financial engineering to temporarily shuffle $50 billion of assets off its books in the months before its collapse in September 2008 to conceal its dependence on leverage, or borrowed money. Senior Lehman executives, as well as the bank’s accountants at Ernst & Young, were aware of the moves, according to Mr. Valukas, the chairman of the law firm Jenner & Block and a former federal prosecutor, who filed the report in connection with Lehman’s bankruptcy case.

    Richard S. Fuld Jr., Lehman’s former chief executive, certified the misleading accounts, the report said.

    “Unbeknownst to the investing public, rating agencies, government regulators, and Lehman’s board of directors, Lehman reverse engineered the firm’s net leverage ratio for public consumption,” Mr. Valukas wrote.

    Mr. Fuld was “at least grossly negligent,” the report states, adding that Henry M. Paulson Jr., who was then the Treasury secretary, warned Mr. Fuld that Lehman might fail unless it stabilized its finances or found a buyer.

    Lehman executives engaged in what the report characterized as “actionable balance sheet manipulation,” and “nonculpable errors of business judgment.”

    The report draws no conclusions as to whether Lehman executives violated securities laws. But it does suggest that enough evidence exists for potential civil claims. Lehman executives are already defendants in civil suits, but have not been charged with any criminal wrongdoing.

    A large portion of the nine-volume report centers on the accounting maneuvers, known inside Lehman as “Repo 105.”

    First used in 2001, long before the crisis struck, Repo 105 involved transactions that secretly moved billions of dollars off Lehman’s books at a time when the bank was under heavy scrutiny.

    According to Mr. Valukas, Mr. Fuld ordered Lehman executives to reduce the bank’s debt levels, and senior officials sought repeatedly to apply Repo 105 to dress up the firm’s results. Other executives named in the examiner’s report in connection with the use of the accounting tool include three former Lehman chief financial officers: Christopher O’Meara, Erin Callan and Ian Lowitt.

    Patricia Hynes, a lawyer for Mr. Fuld, said in an e-mailed statement that Mr. Fuld “did not know what those transactions were — he didn’t structure or negotiate them, nor was he aware of their accounting treatment.”

    Charles Perkins, a spokesman for Ernst & Young, said in an e-mailed statement: “Our last audit of the company was for the fiscal year ending Nov. 30, 2007. Our opinion indicated that Lehman’s financial statements for that year were fairly presented in accordance with Generally Accepted Accounting Principles (GAAP), and we remain of that view.”

    Bryan Marsal, Lehman’s current chief executive, who is unwinding the firm, said in a statement that he was evaluating the report to assess how it might help in efforts to advance creditor interests.

    Repos, short for repurchase agreements, are a standard practice on Wall Street, representing short-term loans that provide sometimes crucial financing. In them, firms essentially lend assets to other firms in exchange for money for short periods of time, sometimes overnight.

    But Lehman used aggressive accounting in its Repo 105 transactions: it appears to have structured transactions such that they sold securities at the end of the quarter, but planned to buy them back again days later.

    The effect of the accounting was to artificially and temporarily lower the firm’s debt levels to hit certain targets, making the firm look healthier than it really was.

    In a series of e-mail messages cited by the examiner, one Lehman executive writes of Repo 105: “It’s basically window-dressing.” Another responds: “I see … so it’s legally do-able but doesn’t look good when we actually do it? Does the rest of the street do it? Also is that why we have so much BS [balance sheet] to Rates Europe?” The first executive replies: “Yes, No and yes. :)”

    Mr. Valukas was appointed by the United States Trustee in the case in January 2009 to investigate the causes of the Lehman bankruptcy, as well as to find out if any fraud or misconduct took place.

    Mr. Valukas writes in the report that “colorable claims” could be made against some former Lehman executives and Ernst & Young, meaning that enough evidence existed that could lead to the awarding of damages in a trial. He added that Lehman’s directors were not aware of the accounting engineering.

    By his reckoning, Lehman managed to “shed” about $39 billion from its balance sheet at the end of the fourth quarter of 2007, $49 billion in the first quarter of 2008 and $50 billion in the second quarter. At that time, Lehman sought to reassure the public that its finances were fine — despite pressure from short-sellers like the hedge fund manager David Einhorn.

    Executives, including Herbert McDade, who was known internally as the firm’s “balance sheet czar,” seemed aware that repeatedly using Repo 105 was disguising the true health of the investment bank. “I am very aware … it is another drug we r on,” he wrote in an April 2008 e-mail cited by the examiner’s report. At other times, he is described as calling for a limit to the number of Repo 105 transactions.

    By May and June of 2008, a Lehman senior vice president, Matthew Lee, wrote to senior management and the firm’s auditors at Ernst & Young flagging “accounting improprieties.” Neither Lehman executives nor Ernst & Young alerted the firm’s board about Mr. Lee’s allegations, according to the report.

    Mr. Fuld is described in the examiner’s report as denying having knowledge of the Repo 105 transactions, and there is no evidence that he directed subordinates to make use of that aggressive accounting. (He did recall issuing several directives to reduce the firm’s debt levels.) But Mr. McDade is reported as telling Mr. Fuld about using Repo 105 to achieve that goal.

    marcus@foreclosureProSe.com

  337. Decided on March 3, 2010

    Supreme Court, New York County

    U.S. Bank, N.A., as Indenture Trustee for the Benefit of the Insurers and Noteholders of GreenPoint Mortgage Funding Trust 2006-HE1, Home Equity Loan Asset-backed Notes Series-HE1; SYNCORA GUARANTEE INC., formerly known as XL CAPITAL ASSURANCE INC., as Controlling Insurer, Note Controlling Party and Class Ax Insurer; and CIFG ASSURANCE NORTH AMERICA, INC., as Class Ac Insurer, Plaintiffs,

    against

    Greenpoint Mortgage Funding, Inc., Defendant.

    600352/09

    For Plaintiff Syncora Guarantee Inc. and CIFG Assurance North America, Inc.

    Paterson Belknap Webb & Tyler, LLP.

    1133 Avenue of the Americas

    New York, New York 10036

    Philip R. Forlenza, Esq.

    (212) 336-2222

    For Plaintiff U.S. Bank Nat’l Ass’n as Indenture Trustee

    Nixon Peabody LLP

    437 Madison Avenue

    New York, New York 10022

    Constance M. Boland, Esq.

    (212) 940-3111

    For Defendant Greenpoint

    Mortgage Funding, Inc LeClair, a Professional

    Corporation,

    840 Third Avenue, Fifth Floor

    New York, New York 10022

    Michael T. Conway, Esq..

    (212) 430-8032

    Bernard J. Fried, J.

    In this beach of contract action arising out of the recent mortgage-backed securities debacle, defendant GreenPoint Mortgage Funding, Inc. (GreenPoint) moves, pursuant to CPLR 3211 (1) and (7), to dismiss the complaint.

    The transaction among the parties proceeded as follows. GreenPoint originated at least 30,000 home equity lines of credit and other home mortgage loans. The loans were then sold to GMAC Mortgage Corporation (GMAC), as servicer of the loans, pursuant to a “Flow Revolving Credit Loan Purchase and Warranties Agreement” (HELOC), and a “Flow Mortgage Loan Purchase and Warranties Agreement” (Mortgage Loan Sale Agreement), dated September 26, 2005 and July 26, 2006, (together, Sales Agreements) respectively. The term of the two Sales Agreements are substantially the same. The loans were then sold to Lehman Brothers Bank, F.S.B. (Lehman Bank). Lehman Bank, in turn, assigned the loans to Lehman Brothers Holdings (Lehman Holdings), Lehman Bank’s parent company, through an Assignment and Assumption Agreement.

    Lehman Holdings then assigned the loans to Structured Assets Securities Corporation (SASCO), through a Mortgage Loan and Sales Assignment Agreement. The loans were then deposited by SASCO into the GreenPoint Mortgage Trust (Trust), pursuant to a Transfer and Servicing Agreement among the Trust, SASCO, GMAC and U.S. Bank (U.S. Bank) (Transfer Agreement), to form a pool of mortgages.[FN1] U.S. Bank is Indenture Trustee of the Trust, pursuant to an Indenture Agreement. The total value of the loans in the mortgage pool is at least $1.8 billion.

    At this point, the loans became securitized for the benefit of numerous noteholders, who stood to benefit from the interest and cash generated by the loans. The loans are insured by plaintiffs Syncora Guarantee Inc. (Syncora) and CIFG Assurance North America, Inc. (GIFG) (together, Insurers), pursuant to Insurance and Indemnification Agreements among Lehman, SASCO, the Trust and the Insurers. At this time, GreenPoint also entered into Indemnification Agreements with the Insurers. No claims have been brought under these agreements.

    The Indemnification Agreements were followed by the preparation of a prospectus, which was used to sell the interest in the loans to investors. The prospectus was augmented by a document called the Prospectus Supplement (together, ProSupp), of which Lehman Holdings was the sponsor. The ProSupp contained certain other representations concerning GreenPoint’s adherence to its underwriting guidelines. While the ProSupp contains representations and warranties as to the viability of the loans, it is not clear what role GreenPoint played in the preparation or execution of [*2]this document, which apparently was prepared after the original sale of the loans to GMAC, and after the creation of the Trust. GreenPoint is neither a sponsor or issuer of the ProSupp.

    Between the time the loans were securitized in 2005 and 2006 and the present, the home mortgage crisis devastated the value of the loans in the Trust, to the vast detriment of the investors. In this action, plaintiffs attempt to recover the entire loss of the $1.8 billion original value of the loans, based on GreenPoint’s alleged violation of representations and warranties contained in the Sales Agreements and, according to the complaint, the ProSupp. U.S. Bank alleges that the home mortgage loans and lines of credit were based on faulty representations by GreenPoint of such things as the earning potential of the home buyers, and thus, their ability to afford the homes, all of which allegedly rendered the loans unstable and valueless from the time of their origination. U.S. Bank contends that GreenPoint failed to follow its own underwriting guidelines when it allowed these loans to be made.

    The Sales Agreements contain numerous representations and warranties concerning the viability of the original loans. The warranties and liabilities are contained in sections 6 and 7 of the Sales Agreements, and the remedies for breach of the representations and warranties are contained in section 8.

    The dispute is whether, under sections 6, 7 and 8 of the Sales Agreement, GreenPoint was in breach of the Sales Agreements, and whether the breaches require GreenPoint to pay to plaintiffs the entire cost of all of the loans before their disintegration, or merely the original value of any individual loan which might be found to have been made in breach of the representations and warranties found in the Sales Agreements.

    This argument arises from the following facts. On March 14, 2008, U.S. Bank sent a letter to GreenPoint demanding that GreenPoint cure alleged breaches in 655 of the loans, or that GreenPoint repurchase the loans (the March 2008 letter).[FN2] The March 2008 letter alleged that there were breaches of subsection 7 of the Sales Agreements in the case of each of the individual loans. GreenPoint responded with a letter requesting information concerning the basis for the demand, and for copies of the various sales and assignment agreements by means of which U.S. Bank had acquired the loans, claiming that it was unaware of the progress of the loans into the Trust after they had been transferred to GMAC. GreenPoint also asked for the servicing files of each of the 655 loans.

    U.S. Bank allegedly sent a further letter to GreenPoint on July 9, 2008 (July 2008 letter) concerning 308 additional loans which also were allegedly made by GreenPoint in violation of section 7 of the Sales Agreements. GreenPoint maintains that it never received this letter, and, like the 655 loans in the March 2008 letter, has no idea what specific loans are at stake.

    Finally, in a letter dated December 9, 2008 (the December 2008 letter), U.S. Bank claimed that GreenPoint had breached section 6 (h) of the Sales Agreements (as opposed to 7), and, as a result, demanded that GreenPoint repurchase all of the 30,000 plus loans contained in the Trust. According to GreenPoint, U.S. Bank has never identified which loans were to be repurchased, an important lapse, because some loans in the Trust were originated by non-party Impac. [*3]

    GreenPoint responded to the December 2008 letter requesting, as before, the servicing files on the loans which U.S. Bank claimed to be in breach, and, more importantly, denying that any breaches existed under section 6 (h) of the Sales Agreements.

    GreenPoint argues that plaintiffs cannot, by virtue of the plain language of the Sales Agreements, establish any duty on GreenPoint’s part to pay plaintiffs back for the cost of the entire pool of loans. GreenPoint also contends that the insurer plaintiffs lack standing to pursue this action, because Syncora and CIFG were never intended to benefit from the representations and warranties contained in the Sales Agreements.

    GreenPoint also maintains that the present action is premature under the terms of the Sales Agreements, because plaintiffs commenced the action before the 60-day cure period contained in the Sales Agreements, and have never provided GreenPoint with the identities and particulars of the loans alleged to have been made in breach of the representations and warranties in the Sales Agreements, such that GreenPoint cannot evaluate the problems alleged to be contained in the individual loans.

    It is basic that on a motion to dismiss pursuant to CPLR 3211, we must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory.

    Sokoloff v Harriman Estates Development Corp., 96 NY2d 409, 414 (2001); see also Leon v Martinez, 84 NY2d 83 (1994). A motion brought pursuant to CPLR 3211 (a) (1) “may be granted where documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.'” Held v Kaufman, 91 NY2d 425, 430-431 (1998), quoting Leon v Martinez, 84 NY2d at 88; Foster v Kovner, 44 AD3d 23, 28 (1st Dept 2007)(“[t]he documentary evidence must resolve all factual issues and dispose of the plaintiff’s claim as a matter of law”).

    “Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked.” Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 812 (2003). Therefore, it is essential that the matter of the plaintiffs’ standing be addressed, as a threshhold question.

    The Insurers base their standing on a claim that they were the intended third party beneficiaries of the Sale Agreements, the ProSupp, and the Indemnification Agreements with GreenPoint. They argue that the Sales Agreements “expressly fore[saw] the type of securitization transaction that led to the Insurers’ involvement” at the time the Sales Agreements were executed (Plaintiffs’ Memorandum of Law, at 22), and that GreenPoint intended that the Insurers would directly benefit from the warranties and representations contained in the Sales Agreements. They also claim that the representations in the Indemnification Agreements to the effect that “[a]ll material provided in writing to the [Insurers] for inclusion in the Offering Documents … shall be true and correct in all material respects” (Aff. David W. Dykhouse, Ex. C, at section 5 [f] and Ex B, section 3) provide the necessary intent on GreenPoint’s part to benefit the Insurers in the matter of the securitization of the loans.

    The Insurers argue that the rights conferred upon them by the Indemnification Agreements, the Insurers’ Insurance and Indemnity Agreements, the Indenture, and the Transfer and Servicing [*4]Agreements, along with the Sales Agreements, “will allow the fact finder to determine that both GreenPoint and GMAC intended the Sales Agreements to benefit the insurers directly.” Plaintiffs’ Memorandum of Law, at 24.

    A party asserting rights as a third-party beneficiary must establish “(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for his benefit and (3) that the benefit to him is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate him if the benefit is lost.”

    State of California Public Employees’ Retirement System v Shearman & Sterling, 95 NY2d 427, 434-435 (2000), quoting Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 336 (1983). There must be a “clear intention to confer the benefit of the promised performance.” PT. Bank Mizuho Indonesia v PT. Indah Kiat Pulp & Paper Corp., 25 AD3d 470, 471 (1st Dept 2006). “Absent such intent, the third party is merely an incidental beneficiary with no right to enforce the contract.” Strauss v Belle Realty Co., 98 AD2d 424, 426 (2d Dept 1983), affd 65 NY2d 399 (1985).

    “Whether or not a writing is ambiguous is a question of law to be resolved by the courts.” W.W.W. Associates, Inc. v Giancontieri, 77 NY2d 157, 162 (1990); see also Nautilus Insurance Co. v Matthew David Events, Ltd., ___AD3d___, 2010 NY Slip Op 00296 (1st Dept 2010). It is settled that contract terms are to be construed to reflect the parties’ intent. Greenfield v Philles Records, Inc., 98 NY2d 562 (2002). “Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” Id. at 569. Decidedly, “[p]arol evidence cannot be used to create an ambiguity where the words of the parties’ agreement are otherwise clear and unambiguous.” Riverside South Planning Corp. v CRP/Extell Riverside, L.P., 60 AD3d 61, 66 (1st Dept 2008), affd 13 NY3d 398 (2009); see also Innaphos, Inc. v Rhodia, S.A., 38 AD3d 368 (1st Dept 2007), affd 10 NY3d 25 (2008).
    The Insurers have not pointed to anything in the mass of documents, including, especially, the Sales Agreements, which would make them direct beneficiaries to these representations and warranties contained in these agreements. Thus, there cannot be read into the various agreements an intent to apply the warranties and representations contained in the Sales Agreements to the Insurers, sure it is is patently not in the documents (see U.S. Fidelity & Guarantee Company v Annunziata, 67 NY2d 229, 232 [1986]["courts should refrain from rewriting the agreement"]) Moreover, parol evidence contained in other agreements cannot alter the plain terms of the Sales Agreements. W.W.W. Associates, Inc. v Giancontieri, 77 NY2d 157, supra. Evidence “unstated or misstated is generally inadmissible to add to or vary the writing.” Id. at 162. Even aside from the Sales Agreements, the Insurers’ conclusory allegations that they are somehow beneficiaries of these warranties through other, later, documents, such as the ProSupp and Indemnification Agreements, fail to show that they were ever intended beneficiaries to any warranties or representations made by GreenPoint in the original Sales Agreements between GreenPoint and GMAC, or any of the later assignees. The Insurers have shown nothing that would give them direct rights to rely on the Sales Agreements’ warranties emanating from GreenPoint at any stage in the transactions. As such, they have failed to establish they have standing to appear in this action.

    In GreenPoint’s memorandum of law, GreenPoint only addresses the issue of whether the Insurers have standing to pursue this action. However, at oral argument, GreenPoint argued that [*5]U.S. Bank lacks standing as well, this despite the fact that GreenPoint stated that U.S. Bank was the “real party in interest” in its Memorandum of Law. GreenPoint’s Memorandum in Support of Motion, at 24. Since plaintiffs have had the opportunity to respond to GreenPoint’s arguments, the issue of U.S. Bank’s standing is ripe for decision.

    Greenpoint argues that U.S. Bank lacks standing to bring an action based on the representations and warranties contained in the Sales Agreements, because the transactions following GreenPoint sale of the loans to GMAC were made in derogation of the explicit terms of the Sales Agreements, stating that all transfers of the loans must be made to substantially comport with the detailed form annexed to the Sales Agreements. Conway Aff., Ex. D, section 21. This section, which is contained in the Mortgage Loan Purchase Agreement, states, in pertinent part, that:

    the transferee will not be deemed to be a Purchaser hereunder binding upon the Seller unless such transferee shall agree in writing to be bound by the terms of this Agreement and an original counterpart of the instrument of transfer and an assignment and assumption of this Agreement in the form of Exhibit H hereto executed be the transferee shall have been delivered to the Seller.
    It is uncontested that (1) the Lehman entities did not use the form in question; (2) that the forms used were not substantially in the form of Ex. H; and (3) that neither the Lehman entities nor U.S. Bank obtained the loans, and the status of “Purchaser,” pursuant to any such form.

    U.S. Bank counters that GreenPoint is raising form over substance, and that the form supplied in the Sales Agreements was not a necessary part of the transactions which occurred after the loans left GreenPoint’s hands; that GreenPoint waived any right it had to object to the use of other forms of transfer; and that the transaction after the sale of the loans to GMAC, and the assignments which occurred thereafter, were part of a “securitizied transaction,” which did not require the use of any forms in particular.

    U.S. Bank turns to section 21 of the HELOC, which differs, in part, from the language in the Mortgage Loan Purchase Agreement.[FN3] Section 21 also states that a sale of the HELOC loans must be made pursuant to the attached form (Ex. G thereto), “provided that (i) in the case of a Securitization Transfer … Purchaser shall have the right to assign its rights under this Agreement into such Securitization Transfer.”

    U.S. Bank notes that, although a definition of “Securitized Transfer” is not contained in section 21 of the HELOC, in section 28, a “Securitized Transfer[]” is described as a “securitized trust structure.” U.S. Bank explains that “securitized trust structure” does not mean a single entity (such as itself), but an overall transaction with the outcome being a securitization of the loans in question. Thus, U.S. Bank claims that the Lehman entities and SASCO did not need to follow any particular form in transferring the loans, because the transaction from day one always anticipated the securitization of the loans.

    As a result of this argument, U.S. Bank insists that this motion must be denied, as it has yet to be afforded such discovery as would allow a determination whether the transaction GreenPoint [*6]instigated anticipated the eventual securitization of the loans, making the entire HELOC transaction from its inception a “securitized trust structure.” U.S. Bank maintains that discovery would show, for example, that the Sales Agreements comported with industry practice in the sale of securities for eventual securitization.

    GreenPoint, in rebuttal, argues that there is no evidence that the sale of the loans was intended to create a “securitized trust structure,” in that the sale of the loans could have ended in any one of three scenarios, including, but not limited to, the securitization of the loans. According to GreenPoint, the Sales Agreements also contemplated the possibility that GreenPoint might sell the loans as a “whole loan Sales” transaction (Transcript, at 14), or do an “agency transfer,” wherein the loans are taken to Fannie Mae or Freddie Mac, and sold in return for securities from these entities. Id.; see also Sales Agreement, Aff. of Conway, Ex. C, section 28. Thus, GreenPoint insists that the loans only became securitized as a result of the transfers which took place after GreenPoint sold the loans to GMAC, that is, after they were out of GreenPoint’s hands and control.

    While GreenPoint argues that the terms of the HELOC do not anticipate the securitization of the loans, the terms of this agreement fail to clarify the matter. There is an ambiguity as to whether the entire transaction from its inception was meant to be, or became, a “securitized trust structure.” As a result of the ambiguity, U.S. Bank should be allowed to conduct the discovery it needs to determine the intent of the parties in respect to the matter. As a result, GreenPoint cannot, on this motion to dismiss, preclude U.S. Bank from pursuing this matter by claiming that U.S. Bank does not have standing.

    U.S. Bank has afforded less time to the argument that transactions following the Mortgage Loan Purchase Agreementcomport with the requirements of section 21 of this agreement, since it is not questioned that the assignments were not made using the designated form. However, at this stage in the proceedings, it cannot be determined whether the various forms used in the assignments were “substantially” the same as the designated form, incorporated the material in the forms, so as to bring the assignments in compliance with the Sales Agreements, or whether GreenPoint waived any right to require the assignments to comply with the Sales Agreements. Dismissal is not warranted on this point at this time.

    Having established that the complaint sufficiently alleges U.S. Bank’s standing to bring this action, I turn to the allegations in the complaint, the gist of which is that the majority of the 30,000 loans which GreenPoint originated were rife with misrepresentations as to such things as the earning potential of prospective home buyers, and their ability to afford the houses which they purchased with GreenPoint loans; that is, that the loans were made without regard to the purported rigors of GreenPoint’s underwriting procedures. As a result, the precipitous drop in the value of homes caused widespread defaults in the mortgages, by persons who apparently could not afford their homes in the first place, resulting in a catastrophic drop in the value of the loans originated by GreenPoint, all to the detriment of the numerous investors in the Trust.

    The disagreement between the parties involves the interpretation of specific provisions in the Sales Agreements, to determine whether misrepresentation allegedly made by GreenPoint in the origination of discrete loans, however widespread, required GreenPoint merely to repurchase those loans in which fault could be found, or to repurchase the entirety of the 30,000 loans represented in the Sales Agreements.

    Section 7 of the Sales Agreements is entitled “REPRESENTATION AND WARRANTIES [*7]REGARDING INDIVIDUAL MORTGAGE LOANS.” The section, which runs to 12 pages, is essentially summed up in its first paragraph, which reads “[a]s to each Revolving Credit Loan [or Mortgage Loan], The Seller [GreenPoint] hereby represents and warrants to the Purchaser [GMAC] that as of the related Closing Date: (a) Revolving Credit Loans [Mortgage Loans] as Described. The information set forth in the related Revolving Credit Loan Schedule is complete, true and correct.”

    On the other hand, section 6 states that:

    [t]he Seller, as a condition to the consummation of the transactions contemplated hereby, hereby makes the following representations and warranties to the Purchaser as of each Closing Date … (h) No Untrue Information. Neither this Agreement nor any statement, report or other document furnished or to be furnished pursuant to this Agreement or in connections with the transactions contemplated hereby contains any untrue statement of fact or omits to state a fact necessary to make the statements therein not misleading.”
    Section 8 of the Sales Agreements contains different remedies for breaches of section 6 or section 7. Section 8 (b) of the HELOC states, in relevant part, that:

    within 60 days of the earlier of either discovery by, or notice to, the Seller of any breach of the warranties or representations set forth in clauses (qq), (vv), (ww), (xx), (aaa), (bbb) and (ccc) of Section 7, the Seller shall repurchase such Revolving Credit Loan at the Repurchase Price. In the event that a Breach shall involve any representation or warranty set forth in Section 6, and such Breach cannot be cured within 60 days of the earlier of either discovery by or notice to the Seller of such Breach, all of the Revolving Credit Loans shall, at the Purchaser’s option, be repurchased by the Seller at the Repurchase Price [emphasis added].

    The language in the Mortgage Loan Purchase Agreement contains the same language in section 8 (c).
    The confluence of these sections indicates, simply, that a breach of warranties or representations in an individual loan under section 7 calls for the section 8 remedy of the repurchase of that individual loan, while a breach of section 6 calls for the repurchase by GreenPoint of the entire loan pool. GreenPoint argues that U.S. Bank can only seek to compel the repurchase of the individual loans it revealed to GreenPoint as being in derogation of section 7, while U.S. Bank claims that the sheer volume of invalid loans, as indicated in its random sampling of loans,[FN4] amounts to misrepresentations and breaches of warranties under section 6 (h), such as compel the application of the section 8 remedy of the repurchase of all of the 30,000 loans in the loan pool. The breaches highlighted by U.S. Bank involve GreenPoint’s allegedly “pervasive failure to follow its underwriting guidelines during the origination of the Loans” (Plaintiffs’ Memorandum of Law, at 2), raising the severity of the breaches of the individual loans beyond the narrow constraints of section 7, into the [*8]overarching language of section 6 (h).[FN5]

    The question that arises is this: under the language of the Sales Agreements, is there a point at which breaches of the representations and warranties in individual loans rise to a violation of section 6 (h), as opposed to section 7, so as to require the draconian remedy of repurchase of all 30,000 loans, and, has U.S. Bank established that such a limit, if intended by the parties, has been reached? It is evident that the language of the competing sections of the Sales Agreements creates ambiguities, which cannot be deciphered on a motion to dismiss. At the pleading stage, these questions cannot be answered, and discovery is required to address the question. Consequently, dismissal of the complaint as to U.S. Bank is inappropriate at this time.

    In sum, GreenPoint has established that the Insurers have no standing as third-party beneficiaries, or under any other theory, of the Sales Agreements, and must be dismissed as plaintiffs in this action. The action will not be dismissed, however, as against U.S. Bank.

    Accordingly, it is

    ORDERED that the motion to dismiss the complaint is granted only to the extent of dismissing the complaint as to Syncora Guarantee Inc. and CIFG Assurance North America, Inc., and is otherwise denied; and it is further

    ORDERED that defendant GreenPoint Mortgage Funding, Inc. is directed to serve an answer to the complaint within 20 days of service of this order with notice of entry; and it is further

    ORDERED that the remainder of the action shall continue.

    Dated: March3, 2010

    ENTER:

    ______________________________

    J.S.C.

  338. does anyone know what this soliman guy is talking about.? does anyone know if he know what hes talking about? he writes in weird gibberish and is very confusing.

  339. CLASS ACTION SUIT FOR DECEPTIVE MODIFICATION OFFERS BY LENDERS AND CLAIMS OF BREACH
    March 11th, 2010
    By M.Soliman

    The claims are NOT simple, the two filings say: “When a large financial institution promises to modify an eligible loan to prevent foreclosure, homeowners who live up to their end of the bargain expects that promise to be kept.”

    The issue at hand is “tender”. Here is another wasted class action suit lacking substance for the correct and proper arguments.

    Counsel, you have earned my monthly “WTF” award for failing to realize the lenders generous offers are just that. . A source of tender and mere proposition for an offer to assist. God Bless them. But a lack of tender in the foreclosure process will hurt your chances especially if the lender can demonstrate your were BROKE.

    Now the offers are made, albeit under a Fed and State (CC {} 2923.56) mandate. Once again a sucker is born every day. Your original lender is broke and gone, the trustee of record replaced by a debt collector, one of the instruments make logical sense and the grant Deed Upon Sale sticks of something Al Capone would never participate in.

    With the issue of Modifications, I side with the lender.

    HOW YOU DOING!
    We know the matter will always come down to a financial capacity argument. And you are trying to qualify for avoiding the judicial right of a lender to a recovery by going to the “Loan Mod Squad” to asset you.

    Read 1122AB and that’s all I will say about that!

    Look, a lender in an economic bail plan that has “parties of a lost interest sold long ago” with their backs against the wall

    S*U*C*K*E*R*S!

    Questions proposed to set the matter for early hearings and dismissal will be – – – “could the borrower offer recognized tender to either

    a) Cure the foreclosure or
    b) Offer an amount a court could determine to be sufficient consideration.

    A lender that assists in a modification effort is not acting as a fiduciary and how many times has a judge told us this. Under the doctrine of “caveat emptor”, the borrower could not recover from the lenders transfers and securities registration defects on the property that rendered the loan and obligation unaffordable.

    A so too will the court speak to the fact known in Latin as “you-snooze- loose” or pay attention.

    So the property is now unfit for ordinary purposes subject to your lack of capacity and market conditions and appraisal changes and NOT THE LENDERS FAULT!

    The only exception was if the Lender actively concealed material information and you prove latent defects or target material misrepresentations amounting to fraud.

    Okay, hear the judge tell you, call a cop, see the DA and “get out” of your home as you lost possession.
    The caveat emptor rule applies to all other sale situations (i.e. homeowner to buyer) and I am using it for the clients advantage in a “lease to own” botched securitization. Many other jurisdictions have provisions similar to this.

    Before statutory law, the debtor had no warranty of the quality of goods or in these case services. In many jurisdictions now, the law requires that goods or services must be of a condition of earnest and quality.

    However, this implied warranty can be difficult to enforce and may not apply to the exact extent of the law as for mortgage products. Hence, borrowers then and now are still advised to be cautious.

    Funny, when you consider that according to the definitions I researched – – -In addition to the quality of the merchandise, this phrase also applies to the return policy. In most jurisdictions, there is no legal requirement for the vendor to provide a refund or exchange. In many cases, the vendor will not provide a refund but will provide a credit.

    So does a modification fall into to a legal category of judicial question as to tangible assets and defects to title? Tough question I will surrender to my Ivy League bearded scholars can help out with the correct response over the years to come.

    For now the question of tender and capacity will govern these cases and the lender is sitting on prime USDA evidential materia