JUDGE DENNIS BLACKMON NAILS US BANK IN GEORGIA ON HAMP, WRONGFUL FORECLOSURE AND EMOTIONAL DISTRESS DAMAGES

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PhillipsvsUSBankHomeownersare3rdPartyBeneficiariesofHAMP

“Sometimes, only courts of law stand to protect the taxpayer. Somewhere, someone has to stand up. Well, sometimes is now, and the place is the Great State of Georgia. The Defendant’s Motion is hereby Denied”

“The United States Government paid taxpayer dollars to the largest of our financial institutions, and to European Union Banks, in order to prop up those poorly run organizations. Twenty Billion of those dollars were handed over to the defendant, U.S. Bank.”

“The HAMP guidelines require U.S. Bank to perform modification services for all mortgage loans its services. Otis Philips applied to modify his mortgage with U.S. Bank. U..S. Bank denied the request, without numbers, figures, or explanation, reasoning, comparison to the guidelines, or anything.”

“A cynical Judge might believe that this entire motion to dismiss is a desperate attempt to avoid the discovery period, where U.S. Bank would have to tell Mr. Phillips how his financial situation did not qualify him for a modification. Or, perhaps he was [Judge's emphasis, not mine] qualified, yet didn’t receive the modification, in violation of U.S. Bank’s Service Participation Agreement (SPA).”

“U.S. Bank’s silence on this issue might heighten the suspicions of such a cynical jurist.”

“Clearly, U.S. Bank cannot take the money, contract with our government to provide a a service to the taxpayer, violate that agreement, and then say no one on earth can sue them for it. That is not the law in Georgia. In fact, since no administrative review is provided in HAMP [which is something you should put in your OCC letter demanding review], the courts are the only recourse.”

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43 Responses

  1. Unfortunately, the GA Court of Appeals just (11/28/12) reversed Judge Blackmon’s decision on all claims/issues, with the exception of wrongful attempted foreclosure, which it remanded to the trial court, pending the GA Supreme Court’s decision in You v. JP Morgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012). See U.S. Bank, N.A. v. Phillips, A12A0957, 2012 WL 5935993 (Ga. Ct. App. Nov. 28, 2012). Those of us who are experienced consumer law/real estate attorneys were afraid Judge Blackmon’s awesome decision was too good to be true – in the sense of being inconsistent with most (but not all) of the opinions on HAMP in the 11th Circuit and most others in the country. But not in the sense of being legally or morally erroneous; I believe Blackmon’s Order got the law right on most issues, and it’s the other court’s that have gotten it wrong.

    Unfortunately, for reasons I still have a hard time fathoming, a very negative trend began quite early with these HAMP/modification cases, with courts [wrongly] holding that there is no private right of action/intended third-party beneficiary status [for homeowners] and most courts – because I believe many judges don’t like to do any extra thinking, and REALLY don’t like to do any extra thinking that might lead them to a conclusion which is inconsistent with other judges/courts, even if the latter are erroneous – have blindly followed suit. However, I have had some success in mortgage modification cases by focusing on other claims – e.g. FCRA, TILA, RESPA and state law claims such as conversion, etc. See e.g., Stroman v. Bank of America Corp., 852 F.Supp. 2d 1366 (N.D.Ga., Mar 30, 2012)(NO.: 1:10-CV-4080-AT).

    Hopefully the Stroman opinion – and others like it – will create a contrary trend, and I would certainly like to see the GA Supreme Court make the right decision in the pending You v. Chase case.

    Auden L. Grumet, Esq.

  2. I feel so alone… like so many others must feel. We have been betrayed.
    Suicidal feelings… who cannot help it. No one hears us.

    First American Title Company sent their employee Donna K. Demello after me… and she has now pled guilty to 80 loan frauds…yet they want to take my home, a home I did not even sign a deed of trust on. I was just the Wife. They still want it, even knowing that I know that Donna K. Demello forged my name.
    The Government told me.

    They had me committed for “insanity” on the day I went and watched the service of the summons on the HOA, (who the builder controlled.) The HOA rep, He assaulted me, then he told the police…I was Insane… He said, “I was not defrauded”

    They arrested me, and they strapped me to a dirty bed with leather straps, and they injected me and kept me drugged 3 days. All because I claimed this…forger.. a felon of an admitted 80 loan frauds, whom the FBI has indicted… defrauded me.
    They claimed I was imagining it, yet her Indictment was THERE!

    Google her name. Donna K. Demello.

    Tell me world, Tell me why my life is insane? Why they can prey on us, on me…on you?

    Why they can still after 17 months LIE to the COURT, and devastate my world.
    Why they can take my life, as they have.
    I cannot find any attorney who can comprehend this… Who can understand that it was them that took my life.

  3. @johngault…I would definitely be interested in seeing your chapter 13 stuff…Starting that process myself out here in GA, and any help would be greatly appreciated…thanks!!!
    larkbutterfly

  4. dny,

    Because the foreclosure is fraudulent and no debt collector can ever establish rights to collect on charged-off loan/debt. Why?? Because deregulation allows them to conceal their identity.

    Further, any loan modifications considerations or negotiations that homeowners are entitled to under HAMP, have been prevented by concealment of the creditor due to concealment of the debt buyer.

    And, most important, debt buyer “assignment” of collections rights, if they can demonstrate assignment which is unlikely, makes the loan unsecured — no longer a secured mortgage. Famous TARP footnote — “Without the note, a mortgage is unenforceable, while without the mortgage, a note is simply an unsecured debt obligation , no different from cred card debt.”

  5. cubed2k, re 8:07pm: Do you really want to admit that a debt collector has “bought” anything – even if it was for cents on the dollar? Why assume that party is a “junk debt buyer?” Why admit it?

    For instance, what if the supposed debt collector only has a contingency agreement of sorts with an unknown true owner (or even with some party that is still actually not the true owner), perhaps for cents on the dollar, perhaps for a percentage of whatever they can collect?

    I’m not an attorney, so assume I’m wrong.

  6. @cubed2 – hell with that noise. I’d just file chapter 13 and strip the bums as wholley unsecured. They probably won’t even respond to your motion because they know it’s the law – that one may strip them. I have several of these motions in C-13′s around. If anyone wants to see them, say so here and I’ll post at scribd.
    Presumably when a bankster is after a homeowner for non-payment, one’s credit is already trashed. So unless a person gets his yeah-yeah’s
    arguing with those creeps, just dump them in a 13 and see how they like them apples.
    It’s my understanding that in a C-11 on rental properties, you can cram down an existing first to market value and strip the 2nd entirely (assuming the 2nd is all unsecured by virture of the property’s current value). Any bk attorneys tell us if one may do this in a 13 on rentals?

    Best to get a competent bk attorney. Small price to pay.

  7. Wow. A man of the people. I would kiss this judge’s gritz in Times Square. This is at least the third court to rule that the homeowner is an intended beneficiary of HAMP (other courts I know of are MA and NJ), but most noteworthy in this case is the judge’s reference to the bankster
    hoping to avoid discovery. He’s sure got them pegged. I’m going to find this decision and send it to other judges around the country.

    When their backs are against the wall (y.r.n.m.), the banksters will settle or ‘let it slide’ to avoid discovery, etc. They will lose a battle here and there to win their unholy war against the American homeowner. I hope Philips does not settle.

  8. @cubed2k

    Tell them to back off—that you chose to deal with original creditor.

    Cite FDCPA—and send a cease and desist dispute of debt…

  9. @Carrie,

    Welcome to the real world of the BS in the Financial system of the USA and Global.

    I just received a collection letter from a junk debt buyer of our defaulted Heloc.

    Ok, this outfit wants us to pay them 127,000 thousand bucks for something they bought for probably 1 cent on the dollar. Or $1270.00 dollars. Quite the windfall for some debt collector who says they are collecting a debt. and blah blah the usual statements.

    What about the lien on my property? Will that get released? No mention of the lien? What about UCC code on Presentment?

    So, somebody sends me a piece of paper in the mail and demands I pay them 127 thousand fuck’in dollars???????????????/

    Can You Believe IT?????????????/

    And now I am supposed to send them a debt validation letter.

    And maybe they respond back?

    And maybe I see nothing like original note or contract?

    Doesn’t matter, they sue. Now I have to figure it all out or hire a no nothing Lawyer?

    All because some fuk sends me a piece of paper in the mail saying I owe them money? With no proof. When in fact they, the debt collector, bought the name for pennies on the dollar, which was defaulted debt and written off by original creditor. So they are pretender debt collectors, and in fact, they are collecting for their own purchase of defaulted debt,

    and this has been going on for 20 fuk’in years, and finally the truth is getting out.

    The whole system has been corrupted to the court level. It is all about money.

  10. Well Carrie.

    you said – “sorry, cubed2k—I’m super busy right now because they are trying to steal my house—hang in there…”

    I.m hanging in there.

    My concern was YOU and everybody else here that views. Oh well.

    If you poke around the Solano Courts website I instructed you to do, and you click on the blue highlighted areas in actual case’s, why you will discover some interesting stuff……………….

    like collection cases, like people quieting title attempts,

    like people suing for wrongful foreclosure……………

    Jesus Christ already……………it’s fine everybody here gives you their theories and opinions………..I have given you proof of what is really happening,,,,,,,,,,,,,,go to the god damn Solano Courts website and see for yourself………….

    like anonymous says, wiil you people ever learn……………

    Here I give you actual info on the god damn courts, like in Solano County, Calif, USA,,,,,,,,,,,,which would be similar to any County in California…………..

    and you reply I’m busy……………well open your eyes and see the real stuff in the Courts as I posted…………..and maybe it will help you to help yourself

  11. chris, I have the same except the (approved ellington) which REALLY doesn’t matter-none of it does. I’ve been fighting the same with 2 “loans” from the same thieves who by the way are NOW trying to state that THEY never lent you anything. They’re trying anyway. I also got my “lenders instructions”(FROM THE TITLE CO.)-AND THEY DO STATE THAT!-look at every word…………Well I

    Finally “got it” AND have the answer. If your interested send me your email and I’ll let you know.
    Colleen

  12. Does anyone here know how to track your loan? New Century brokered the loan and used Ocwen as a servicer. I have good documents for forgery, not enough. New Century filed BK in 2007 in Delaware and sold its “supposed” loans to Ellington, (Greenwich, CT) approved by the court. Numerous cease and desist orders and filed 8-K with SEC in 2007 around the time of my loan. Can someone here put me in the right place? I think my loan may not have been funded and oh, the trust collapsed in 2005. Any suggestions? I think I am close, but need to connect the dots.

  13. Defending a Foreclosure Lawsuit, Years After the Fact

    Posted on November 11, 2011 by Mark Stopa
    http://www.4dca.org/opinions/Nov%202011/11-09-11/4D10-3538.op.pdf

    Florida’s Fourth District Court of Appeal issued an opinion this week which bears discussion. In the case of Woodrum v. Wells Fargo Mortgage Bank, the Fourth District reversed a trial court order granting a Final Judgment of Foreclosure because the bank did not disprove the homeowner’s affirmative defenses. That’s not a new principle of law; we should all know at this point that the bank must disprove affirmative defenses to prevail at summary judgment.

    What interested me about this case was the bank’s argument that the homeowner was prohibited from raising these defenses because the homeowner did not file its Answer, containing such defenses, in a timely manner. The Fourth District appropriately rejected this argument, citing Fla.R.Civ.P. 1.500(c), ruling:

    [A] party may plead or defend at any time before a default is entered.

    This language takes me back to a foreclosure case I handled just recently. The homeowner had been trying to defend the case pro se since 2008. It was set for trial in October, 2011 and the homeowner realized he was in over his head, so he came to me. In that sort of situation, the first thing I look for is to see whether the homeowner had been defaulted. In that case, he had not. I then checked to see if he had filed an Answer (with affirmative defenses). He had not. As a result, I knew I could file an Answer, with defenses, even though trial was just a few weeks away and even though the Answer was more than two years late.

    That’s worth clarifying:

    The homeowner’s Answer to the Complaint, with affirmative defenses, was more than two years late but I still filed it.

    Not only was this totally permissible, but the judge agreed with my subsequent argument that the trial had been set prematurely because the case was not at issue. See Fla.R.Civ.P. 1.440. Hence, not only did I file an Answer, but the trial was continued.

    How can this happen? It’s a matter of procedure. As the Fourth District explained in Woodrum, when the defendant has not been defaulted, he may defend the case at any time, even years later. The Answer must be filed before Final Judgment is entered, of course, but without a default, and without a Final Judgment, an Answer can be filed at any time.

    This dynamic happens quite often in foreclosure cases. Hence, for the countless pro se homeowners who have not been defending their foreclosure cases, please realize – it’s probably not too late. If a default has not been entered, you can hire an attorney and file an Answer and Affirmative Defenses, even if the case has been pending for many years. And even if you’ve been defaulted, there are a variety of circumstances where such a default can be vacated.

    Don’t walk away, and don’t give up! You have rights, you just have to exercise them.
    Mark Stopa Esq.

    http://www.stayinmyhome.com

  14. to E. Tolle:

    I have had extensive experience in Carroll County and thus speak with considerable personal experience of how its courts (and the population) work and think. Sadly, the rather parochial inversion of the local thinking works against it, as “outsiders” get burned and are reluctant to invest there. Winder, Georgia has a developer with vast numbers of spec factory buildings, very nicely designed and AAA finished. But the man’s mentality so aggrieves “outsiders” that he now has fifty buildings sitting there empty. His bankers in turn went bust and were taken over and liquidated by the FDIC. You see this throughout rural Northern Georgia; they are still chafing over Sherman’s march to the sea. The mental set spills over into Alabama, now ground-zero in the “war” against Latin migrants. In turn, the redneck attitude is bankrupting the State’s potato/squash farmers, as the stoop labor has fled. I have done litigation against these people, and as an outsider, it is very much an uphill struggle.

  15. sorry, cubed2k—I’m super busy right now because they are trying to steal my house—hang in there…

  16. @ Jan van Eck, always appreciate your insights. Normally I would be inclined to take issue with you concerning your broad brush stroke generalizing people in any given locale. But having once lived “just down the road a piece” from Carroll County, I’d say you nailed that description pretty accurately.

    Let me just say that the chances of getting pulled over and ticketed go up in direct relation to the “northerness” of your license plate. No, they haven’t, and they won’t….forget.

  17. What makes this case interesting is the view of the Court as respects “third-party beneficiaries” of a contract. Remember, this is a suit BY the homeowner AGAINST the bank, for damages. The homeowner alleges that (and the Court makes a finding of fact that) the defendant US Bank “signed a service participation agreement” that obliges the bank to comply with the HAMP guidelines. The bank in its Motion to Dismiss argues that the contract is between itself and the US Govt, not the homeowner (true enough) and thus that the homeowner-plaintiff has no “standing” before the Court. So the law question boils down to: is the homeowner a 3rd-party beneficiary of the contract? It looks like a simple question, but this whole issue of who is or is not a 3rd-party beneficiary is one that is surprisingly fuzzy and difficult to pin down. Here, the rural judge says (in crusty style): “Clearly, US Bank cannot take the [TARP] money, contract with our government to provide a service to the taxpayer, violate that agreement, and then say no one on earth can sue them for it.” Yet, this is EXACTLY what US Bank and their counterparties have said in such suits around the country, with differing results. This judge did not agree: “The Bank claims that the intended beneficiaries of HAMP are the very people who CAN’T sue. Such argument is absurd.”

    Now, once he got over that bridge, the rest of the plaintiff’s case fell into place: “Georgia law allows a third party to sue for negligence.” “Georgia law allows claims for breach of duty of good faith and fair dealing.” “Georgia allows claims for negligent Infliction of Emotional distress by persons who are victims of malicious, willful, or wanton conduct specifically directed against them, even if not a party to the contract whose breach causes such injury. This is a question for the jury.” “Compliance with HAMP guidelines is a condition precedent to foreclosure. Georgia prohibits wrongful foreclosures.”

    So, in recap, note specifically that the foundational step was to convince the Judge that the homeowner was a third-party intended beneficiary of the Govt-bank contract. It could easily have gone the other way. This Judge applied “common sense;” the Bank went in there and attempted to skate around it by saying the homeowner was not a signer of the contract, thus only the US Govt could sue on this docket – and they got slammed. Carroll County is North of Atlanta, it is quite conservative, they don’t like Yankees, and they don’t like outsiders.

    Now also remember that defeating the Bank’s Motion to Dismiss is only the first step: the homeowner still has to make his case all the way to the Jury. But he now has the bank on the defensive, if not yet on the ropes. And it is a Ruling that others can and will point to, for persuasive value.

  18. @carrie,

    Or anybody,

    If you tell you me a specific case number on the Solano Court system, like FCM12356, or whatever.

    You tell tell me the specific case number, and I will look it up on the website. If you do not tell me a number or reply back here on LL, I thus know you have followed my posts, and thus I will cease to exist here on LL as nobody cares indeed. And it is all blow and smoke and mirror’s as well. And in deed you not know or anybody else.

  19. @carrie,

    tell me you follow what I say below……………..and have done it?

  20. now if you have read my posts below on solano courts dot com.

    and if you have poked around on the website, and believe me this will apply to you in any state…………

    you have to look at his specifically, I say that because it will apply to you, no matter where you live in the USA and probably globally………….

    In the Solano Courts website I tell you to go, why click on any any case. At the bottom of the page that shows up, scroll down to bottom.

    Yes this is an interactive post, meaning you must the actions I state to do.

    So, scroll down to the bottom of the web page, and click on new search. And then type in “case Id” number, and behold what is happening. Click on any blue colored entry.

  21. Put on those Sunglasses and open your eyes————-

  22. @carrie,

    I believe you live in California.

    I live in Solano County.

    Here is a project for you and others that live in California. Just research your County website, and put some data together that you have learned and connect the dots.

    Somebody here stated, I believe Etolle or anonymous or somebody else, my apologies, stated the whole business model of debt collectors, and that would include cc debt, auto loan debt, mortgage debt – as it is all ABS or MBS. The whole business model is that defaulters will not fight back. Well, lets get specific here and do some research. I can do this for you on the Solano Courts website, probably similar to other County’s in California.

    Here you go:

    Go to solanocourts dot com.

    click on it. Go to website for official Solano Courts dot com.

    Click on Court Calenders on left side at top area, anybody can do this in the world if you have internet connection.

    A page pops up of the daily calender. Note brown colored names and colors. Click on any of that and see the Docket Report Results which means all those that have filed documents with the courts.

    I suggest one poke around and click away and see what is happening in the court system for Solano Couny, I am sure your County is similar in California, just have to figure it out.

    Anyways, now look for specific cases. Inquiry minds what to know.

    Now on the left side, for Daily Calender page, there will be a box called “quick search”. Click on date and pick a date. Go to it, hit search.

    Now search around and click on any case you wish to see. All public records. Right?

    When you click on a specific case, and “docket report results”, why scroll down and see who, plaintiff and defendant, has filed documents in the court case. Click on any blue colored name and see, and see who they are?

    Now go back and poke around and see if there are collection cases, foreclosure cases, and see the results of the courts. Go back to any time period.

    Look at daily calender calender again, click in a date, and see if there is an upcoming case and if so, go and sit in on it, see what happens.

    _____________________

    There you go, I hope that helps somebody to see what is happening, and to see if you can figure out your case and see what happens. and figure it out. Highlight any word or words and do a google search and see what that brings to research YOUR CASE, your situation. Seach Case Management One, etc.

    What say you TNHARRY?

    Hey , TONY, add in any comments. Hey Neil, add in your comments.

    I have given a short roadmap to figure it out. Connect the dots and see for yourself. Then figure out your survival action. That is what I have learned so far in dealing with the court system and the financial system, it is a system of law I guess. It is not a system of morals or ethics. And who passes the laws? Congress? And who influences Congress? The Banks and wall st and the financial system. Surely not the PEOPLE who work for a living.

  23. @Wallawalla

    Once you filed your emergency petition, what did you do? Move out or stay? My understanding would have been that, as long as the petition was filed, the failure on the judge’s part to make a decision was buying me time.

    I have a lousy JDB case in court. $7,000. The judge has been sitting on it since June. I’m not going to push for a decision. It is buying me time. The way I see it, the guy doesn’t know how to rule. So, I imagine that every time he opens the file, he pushes it aside and resolves to rule on it “next time”. The last thing I would want to do is report him to anyone. I realize that a foreclosure is not a JDB debt but there are some uncanny similarities…

  24. Wallawalla,
    Did you have an attorney or go pro se? Mr. Ensign is off the chain explaining why homeowners deserve their day in court. The people in court that day came rushing into the hallway to talk to him asking him to help them. And you know what, he will.

    Pro se representation can be quite tough, and expensive but remember, our mortgage is usually our biggest investment. Get the BEST attorney you can.

  25. Yep —they know nothing.

    “Them” is anyone you are receiving correspondence from — or can communicate with.

    Of course, also ask them if they are in compliance with the TILA Amendment and Federal Reserve Opinion as to the identity of the current creditor (RULE to the law).

  26. @ carie
    Your post 11/11 “INFORMATION FOR ANYONE WHO NEEDS IT”.

    “Right now, INFORM them that they are in violation of federal law….Request from them where you send the correspondence….”

    Who is “them”?? Would that be the “Trustee” (Wells Fargo Bank, NA, as Indenture Trustee For GRP/AG Real Estate Asset Trust 2005-1) or the “Servicer” (GRP Financial Services Corp.) or both??

    Contacted Wells Fargo Trust Div. Told that they know absolutely nothing about the stated “trust”.

  27. Georgia ???? Of all states. Hard to believe. Banks OWN Georgia and ALL of it’s politicians.

  28. Carie

    Do not sign. Have seen the movie Carrie.

    US Bank, NA — acts in trustee capacity — no authority to do a loan mod. No authority to foreclose.

    Judge is angry — but he is NOT putting 2 and 2 together.

    Judge is worried about his own taxes —-is he nearing retirement??? Tea Party — got to him.

  29. WTH, this judge signed an eviction order and they threw us out of our house and ours is against US Bank as well. Filed an Emergency Petition 6/15/2011 to which he still has not answered or made an order on. Filed another petition 7/26/2011, still, nothing. Is it maybe because we reported him to the Judicial Qualifications commission? He is nothing but a smart ass saying in court about how he doesn’t live under a rock and nobody rides for free in my court. Ha! US Bank attorneys walked into that courtroom without one shred of evidence showing that we owed for any loan and yet he still gave them our house. Looks like US Bank got a free house to me!!!

  30. Boy Oh Boy! That’s fabulous! Things are moving!!!!!!!!

  31. Except that the IndyMac/OneWest OCC foreclosure review letter I got asks for my signature at the end with the sentence:

    “I affirm that I am the borrower or co-borrower of the mortgage loan on the property noted within this document…”

    So–isn’t that re-affirming the “debt” that is ultimately disputed?

    By signing this stupid “review”—you are again being scammed…

  32. The plaintiff in this case is one of our clients at Save America Homes, a local non profit organization helping homeowners keep their home. The attorney Peter Ensign works in Georgia and Tennessee. This is his 2nd huge ruling in the last 30 days. He’s like Matlock and does a great job educating the judges at what they’re looking at.

    If you need to know what your legal rights are and who to look to for help, call Peter Ensign at 423-510-0140 and tell them Save America Homes sent you. They seriously can help!!!

  33. Yipeeeeeee. One for the good guys. We’ll take the wins, one at a time a day at a time.

  34. Ever see the movie “Carrie”…?

  35. i reworked my blog article about the government and federal reserves role in home mortgages over the past 10 years.

    http://swarmthebanks.blogspot.com/2011/11/why-did-pension-fund-managers-invest.html

    I just don’t see the blog article’s viewpoint mentioned very much. I minimized the pension fund angle in the final article version.

  36. I’m having the SAME problems with Indymac/One west—IGNORING MY REQUESTS FOR PROOF—

    Here I come—and it ‘aint gonna be pretty…

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