Rocket Docket? Is it Time to Sue the System?

 Is it time to sue the system?

 

A Federal lawsuit against the State for systemic violations of due process is long over due. 

 

The current system in most states includes some version of the rocket docket. Even without that the bias is clearly  there, but with the “expediting” of claims due process is clearly the loser as the banks get richer on the misery of homeowners who legally have every right to win their cases.

 

The current thinking amongst court administrators and the judges who preside is the presumption that the truth lies in the assertions of the party initiating foreclosures in both nonjudicial and judicial states and dilatory tactics amount to lies of the borrower. The opposite is true and if challenged, it could easily be proven that the rocket docket has resulted in millions of wrongful foreclosures by parties who were simply greedy intermediaries using foreclosures to get more and give less to the investors who thought they were buying mortgage bonds.

 

Weidner correctly summarizes the problem in his morning blog. I suggest that each of the leaders in foreclosure defense file joint or separate actions challenging the current systemic denial of due process. The excuse of expediency is just plain wrong. If it wasn’t for a presumption that the forecloser was and is generally right and the borrower is generally wrong, the push for expediency would have first challenged whether the foreclosers had their case in order.

 

Based upon the thousands of studies, investigations, cases, settlements, claims and defenses that are or at least were robustly reported in the public domain, the judicial systems and legislatures have been on notice for years that the fraud was at the top of the chain within a culture of corruption on Wall Street.

 

If the courts wanted to keep their dockets clear, all they needed to do was what they always did — make the foreclosing party prove the loan was made by the originator, prove the processing of payments and disbursements, and make assertions that the loans had a creditor to whom the money was owed, identify the creditor, and show how the creditor — that particular creditor — was protected by the note and mortgage.

 

And let’s not forget the fact that the investors, who are the real lenders are getting paid in settlements with broker dealers (investment banks), paid by loss sharing agreements, insurance, servicer advances (that are probably funded by broker dealers) other hedges and guarantees. Why are the states ignoring the fact that dozens of agencies and courts have determined that fraud lay at the heart of the the whole securitization process, that the securitization process was a ruse that never happened but merely threw up a smoke screen for the fraud committed on investors, the creation of unenforceable loan documents (according to the filings of investor complaints, the DOJ, Fannie, Freddie, insurers and other co-obligors never disclosed by the closing agent or the originator (an obvious violation of TILA, a federal law passed long ago to protect consumers from exactly this type of criminal behavior).

 

The circumstances are such that the statute of limitations runs out on the TILA claims because the borrower doesn’t usually find out that he was screwed until long after the loan “closing” and even then doesn’t quite understand it. If the courts really wanted to clear their dockets all they would need to do is follow the TILA statute as a guide and allow those actions where the discovery of the fraud did did not occur until long afterwards. Judge Hollowell in Arizona in a CLE seminar stated her concern for what was currently being done to tittle chains — that would result in a storm of problems in 10 or 20 years when people realize they can’t sell their homes or refinance because the problems with their title result from systemic problems caused by the intermediaries posing as real parties and the granting of foreclosures in cases where it is obvious that the chain of title is corrupted.

 

 If criminal defendants were treated this way there would be no question that due process of it violated. Other courts have long stated that forfeiture and in particular foreclosure is an extreme remedy that should be closely scrutinized. I frankly don’t see what defense they would be by a state that was continuing to promote expediency over due process —  especially where their basic premise is so wrong. It may have been true at one time that if a foreclosure was filed it would  result in the entry of a foreclosure judgment or sale. Back in the day, that made sense because it really wasn’t any defense other than payment by the borrower. So foreclosures became mostly a clerical activity even for the judges, but the good ones still scrutinize the paperwork and ask some questions to make sure that the property wasn’t being improperly taken. Today the premise needs to be reversed. We know there was fraud on Wall Street, we know there was corruption, and we know it is continuing. Why should we not start off with the presumption that the foreclosures are simply wrong and illegal?

51 Responses

  1. poppy
    who can create money is a federal issue Art 1 Para 10 Cl 1 of our US Constitution, so why not a Federal Lawsuit?

  2. Can I get a straight answer from someone on this issue. I filed a complaint with the OCC indicating to them the there is a Cease and Desist Order out there on the Banks to stop Robo Signing. The complaint was both on Wells Fargo and Citi. Citi has responded with a bunch of crap, but in essence this is what they said, “Our records indicate Geraldine A. Belinski is a certified appointed signor for Mortgage Electronic Registration System, Inc.” Background: On my DOT Geraldine Belinski signed the document as the Vice President. My question to this is; Is she signing the document as Vice President of MERS or Citi Mortgage. I did some research on my own and tracked her down. The individual at Citi who answered the phone were she worked indicated that she was not a Vice President but a mere processor. So what I need to know before I draft a response and go over OCC’s head is Can they do that? If she signed the document as Vice President of MERS, can she be employed by Citi? And vice versa, if she signed the Document as Vice President of Citi, can she work for MERS, my thought is that it has to be one or the other and she cannot perform work for MERS as a Citi employee and cannot perform work for Citi as a MERS employee. Pleas keep it simple Im not as smart as some of you so you have to keep it simple. I just need to know before I draft my letters to respond. jsmith5915@msn.com. PS: I know some of you all think that I wont get anywhere, but If I can get this to the right people it could make a difference. I am an Army Officer and I never give up the fight.

  3. JG … were you not they one who kept saying you can not put land in a Life Estate Trust ?

    ” The (land trust) is expressed in the instrument that creates the Estate ”,,

    Upon creation of the Estate, the estate becomes a Legal Corp.

    Only a party holding Legal Title can bring a Legal action?

    Comments?

  4. @ Poppy ,

    My closing company was a subsidiary of a legal firm that now practices foreclosure defense… they allowed their closing subsidiary to fail and fall into state receivership to distance themselves from it… Look up K.E.L. Title and K.E.L. Attorneys in Orlando FL ,, you can usually get ahold of Matt Englet on the phone or at least get a direct e:mail response from him if you hunt down the radio show that he broadcasts as an advertising gimmick / public service…

    I actually used their foreclosure defense legal services for 2 years before hiring someone competent … and they never did anything I requested as far as being proactive … I might sue them to recover the fees paid in as they were the closing agent and I have found hard evidence of illegality in the file perpetrated by the pretender that the title/closing company should have found and disclosed,, cancelling the sale.

    You’re 100% correct ,,, everybody knew , but because it was in their immediate interest to not see anything they put up walls ,,, rushed through , didn’t ask questions , made assumptions that the next party down the road actually was performing legally despite the hints/clues in the paperwork …

  5. NEW CLASS CERTIFICATION–RECORDER OF DEEDS GOES AFTER MERS, MERSCORP (see two parts)

  6. It all started with the closing attorney, in my opinion, Louise…start from the root cause.

  7. @Poppy, I agree. If I had this to start over, I would be suing the closing atty, title company, seller, mortgage broker, alleged lender, MERS, MERScorp, Trust (entities inside Trust such as Depositor), Master Servicer, Trustee, Notary Public, Servicer, realtor and realty company, appraiser and appraisal company. As many of you have seen, most of these suits that do not include all these entities and have the same atty or law firm representing all defendants. If you sue enough entities, then you have more than one firm representing different defendants. This is an important litigation tactic.

  8. It’s time to sue everyone, including the closing attorney. IMHO

  9. Would the lawsuits have to take place on a state-by-state basis since we’re dealing with state laws?

  10. who is looking out for the home owners? Lawyers and banks dance on our mortgage and plan when is the right time to grab a great piece of asset. No business partnership, just a one way deal. They say they serve you papers that they never did. They refuse to give modification, they refuse to give letter of reinstatement then they go to the court and plan how to steal what you have been paying for years. Now is the time for the lenders to legal banking between consumers and banks.

  11. No better time. My bank rush into foreclosure after refusing for more than three months to give me a reinstatement letter. They wrote saying I am behind, I ask for reinstatement letter since they indicated that I had to pay what wasowed and nothing more or less. They served me no papers as they stated. Sent me every document on the face of the planet except the reinstatement. After they file foreclosure with hugh fees added then they mail me the reinstatement. No one will give me refinance because I am in foreclosure, and the cost increases as I have to go to court and have modification papers given to me to come back. This is a strategy to derail consumers and increase their debt and where possible take their homes.

  12. “If the trustee acts only at the direction of the beneficiary,
    then the trustee is a mere agent of the beneficiary and a deed of trust no longer embodies a three party transaction. If the trustee were truly
    a mere agent of the beneficiary there would be, in effect, only two parties with the beneficiary having tremendous power and no incentive to protect the statutory and constitutional property rights of the borrower. ”

    THANK YOU, WA Supreme Court!

  13. Totally agree, A Man. The reason judges and the banksters mock “produce the note” is because it is a foreclosure-killer.

  14. re the Consumer Protection Act:

    The [first] two elements may be established by a showing that (1) an act or practice which has a capacity to deceive a substantial portion of
    the public (2) has occurred in the conduct of any trade or commerce.”

    Ring any bells?

  15. you file for a “Writ of Mandamus” against the attorney general of your state through superior court, as I understand it. Failure to discharge their duty to prevent and prosecute statewide crimes.

  16. Ed Ofcharsky, the change manager who oversaw the Red Oak Merger and the November 2008 Transactions,
    explained what he meant when he described the assets left behind at CFC and CHL as “toxic” and “bad”:
    Q. Okay. And then at the top you . . . answer the question–“We did not plan to rebrand, as these fall in one of
    three buckets: one, toxic (CFC and CHL),” two, “company in wind-down,” three, “and potential sale (Balboa Re).” So
    with regard to toxic, what were you describing there? A. . . . what was left in CHL after the November transaction
    were loans that we couldn’t get investor consents on. . . . I believe mortgage servicing rights we couldn’t get the
    consents on. And there were past-due loans that . . . legally we couldn’t move over. . . . And kind of classified those,
    just a slang term because it’s past due, kind of call it toxic. Q. And that was your term, “toxic”? A. That’s my term,
    yeah. Oblak Ex. 56 (E. Ofcharsky Dep. Tr., May 18, 2012) at 297:3-298:5.
    Q. Well, was the goal to identify the loans that presented the greatest risk and leave them under the CFC brand? A.
    © 2012 DOAR Privileged and Confid2e9ntial
    No. It was to sequester or to leave the subprime and distressed loans that were 60 days past due, ready to go into
    foreclosure, and leave them with the Countrywide name. Id. at 280:6-12.
    Q. The next sentence says, “Phase I and II were not widely publicized events due to the sensitive nature of the
    activities, separating the good and bad assets.” . . . [W]hat did you mean when you said they “were not widely
    publicized”? . . . A. . . . It was not something that was widely publicized. Q. And . . . in your email here, does “good
    assets” refer to the loans that did transfer as part of the November 7, 2008 transactions? A. There were good
    assets that were there that we couldn’t move because we couldn’t get the consents. And the “bad assets” related
    to, you know, the past due loans, the loans, you know, in default or ready to go to foreclosure. I mean, those
    didn’t get transferred. Q. But your statement here is related to “separating the good and the bad assets.” What
    did you mean by that? A. “Separating” is they didn’t . . . transfer. Bea Ex. 17 (E. Ofcharsky FGIC Dep. Tr., Oct. 19, 2012) at 179:19-

  17. The depo made me chuckle.

  18. From Klem (linked earlier re: QLS):

    “This agreement is, at least, in tension with Quality’s fiduciary duty to both sides and its duty to act impartially. Cox v. Helenius, 103 Wn.2d
    383, 389, 693 P.2d 683 (1985) (citing GEORGE E. OSBORNE,
    GRANTS. NELSON & DALE A. WHITMAN, REAL ESTATE FINANCE LAW § 7.21 (1979) (“[A] trustee of a deed of trust is a fiduciary for both the mortgagee and mortgagor and must act impartially between them.”) end Klem quote

    In Lewis v Jordan Investment, Inc., 725 A.2d 4955 (1999), recognized the long-standing tenet that a trustee has a dual fiduciary:

    “A trustee of deeds has the fiduciary obligation to comply with the powers and duties of the trust instrument, as well as the applicable statute under the District of Columbia Code. Perry v. Virginia Mortgage & Inv. Co., 412 A.2d 1194, 1197 (D.C. 1980) (citations omitted). THIS COURT HAS LONG RECOGNIZED THAT TRUSTEES OWE FIDUCIARY DUTIES TO BOTH THE NOTEHOLDER AND THE BORROWER. S&G Inv., Inc. v. Home Fed. Sav. & Loan Ass’n, 164
    U.S. App. D.C. 263, 270-71 n. 21, 505 F.2d 370, 377-78 n. 21 (1974)”

    But one has to look at one’s state statutes because ‘while we were sleeping’, the banksters have upset the legislative scheme by getting some laws changed to read the dot trustee has no fiduciary to the borrower, which to me is absurd; the borrower, aka the grantor, aka the trustor, is the one who set up the trust. It may be for the ben of the lender, but the dot is also a particular benefit to the borrower, like because of ‘security first’.
    Even if a, to me bs, state law now reads against trustee fid to the trustor, the trustee still has a duty of fair dealing. Plus, of course, he’s not a trustee at all if anyone but the true ben sub’d him. If he’s not a trustee, everything he did is void. imo. That other case is interesting (depo) – it points out that in WA (anyway), a trustee is not permitted to rely on a declaration from one claiming to be the ben if the trustee has otherwise not conformed to the state law.
    lay opinions

  19. Double Pay for Backdating.

  20. JG … were you not they one who kept saying you can not put land in a trust?

    ” The (land trust) is expressed in the instrument that creates the Estate (A Corp)”

    Only a party holding Legal Title can bring a Legal action.

  21. 🙂

  22. from the depo I linked:

    “Witness (W): “Can you please give me a scenario of what you are
    thinking of?

    Q (By Mr. Stafne): Sure. Deutsche Bank goes in as trustee of a trust and the beneficiary is the trust but Deutsche Bank is representing the beneficiary* in the nonjudicial foreclosure that is being brought by Regional Trustee. And I asked you whether you determined that the
    trustee had authority to bring that action on behalf of the
    trust, and if so, how you made that determination.

    W: The referral would not have come from the trustee.
    It would have come from the servicer.”

    So, hey, looks like the answer to the question is a “no”, a situation kind of like servicers acted and act in MERS’ name, only now they are giving orders for a secn trust or its trustee. Not only that, but there is no evidence given to the sub trustee of the secn trustee’s own auth to
    give it to the servicer.
    *It seems the trust is being taken as the beneficiary of the loan (not the secn trustee). Can a trust be its own beneficiary? Seems to me not, that it needs beneficiaries. I know in dot’s the trust is what’s created in and by the dot, and IT needs a ben. Can’t really say, outside logic, that a trust itself couldn’t be the ben of a thing.
    lay opinions

  23. http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=871051.pdf

    This is an interesting case of special interest to UN-fans of Quality Loan Services. Also involves WAMU. it discusses, among other things, the relationship between an (alleged) ben and a dot trustee.

  24. @Jack I believe courts have understood that the holder of the Notes where in fact the owners of the Notes, but now as we know for a fact that the holder of the Note does not mean ownership because the Notes are physically held by the custodian of records, who may or may not be the “holder in due court” but is in court acting in that role, instead of the party they are actually in the possession of.

    So we have the servicer who is also a bank like Wells Fargo, Citi, Chase & BOA however as with the government loan we know for a fact that 95% of these loans are in Ginnie Mae pools, and through strict procedures the Notes must be signed endorsed in blank. The blank endorsement is showing there was probably the transfer, and the Ginnie Mae certification form GMM211B shown the transfer, plus the MERS Transfer Beneficial Rights – Option 1 proof that the transaction occurred.

    Early on in this thing continuing to now people yelling show me the Note did not explain why the Note endorsement being blank meant what? However in recent discussions you see the court are changing course and are determining that there is “No standing” by these fake lenders!

  25. Standing is a threshold issue. Must have it to enter a court, to look to a court to resolve a dispute. Jack says there’s a presumption (“prima facie evidence” as cited in some cases) that when a copy of a note is attached to a complaint, the complainant is the owner of the note. If that’s true, it’s an absurd presumption. Borrowers have copies of their notes, or are supposed to. So how bout the babysitter gets her hands on that copy? All servicing files have copies of the notes in them. Doesn’t make the copy of the copy anything other than just that. The truth is, also, imo that the dot trustee should have either the original or a certified copy made from the original and of course, not from a copy (unless it’s jud f/c, in which case the claimant needs the orig for court). Anyway, even rational, legitimate presumptions are rebuttable.

    Which reminds me, when banksters who didn’t attach a note to their poc in bk court later, or did file one with no endorsements, later attach an alleged copy or one now with ends to say, a mtn for relief from stay, I would move to strike. I think it’s rule 15 which says what, if anything, may be done to amend a poc after the claims-bar date. I would think the only proper time for a bankster in other venues to add a note to its case is at an evidentiary or prove-up hearing. (Docs attached to complaints are part of the record; not so sure that’s true in
    (non-bk) cases.) lay opinions – ask a lawyer you think knows

  26. Jack – how do you suppose those decisions are reconciled with the best evidence rule….or did they not address it (which is how it looks)?

  27. To John Gault, a judge in Bergen County, N.J. who was appointed to the bench with help from a politician who was helped in her election and who is now part of Christie’s lynch mob actually said in court that the bank was not required to produce the Note. judge Thurber(?) was immediately reassigned to family court. The homeowner was a resident of Bogota, N.J. This was late 2010, early 2011.

  28. Spitfire

    There you go…you can win in various ways. It’s all about what you want. I, like you, have spent a boat load of their money for legal fees, back payments, etc…it all comes out the same. Put the money in your pocket and move on, debt free, from these thugs. Just my opinion here…everyone is different!

  29. To John Gault:

    The standards applicable to standing in a foreclosure case are well settled. Standing is an affirmative defense and, as such, it is the defendant’s burden to prove that the plaintiff does not have
    standing. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010). It is not the plaintiff’s burden to prove it does have standing. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 22 (2004); Mortgage Electronic Registration Systems, Inc. v. Barnes, 406 Ill. App. 3d 1, 7
    (2010) (foreclosure case). The mere fact that a copy of the note is attached to the complaint is itself prima facie evidence that the plaintiff owns the note. U.S. Bank, N.A. v. Dunn, No. 12 CV 1963, 2013 WL 1222054, at *3 (N.D. Ill. Mar. 25, 2013).

    ¶ 25 During the peak of the recent mortgage foreclosure crisis, a member of the United States House of Representatives, Marcy Kaptur, of Ohio, led the “show-me-the-note” charge, suggesting that borrowers could halt foreclosure cases and squat for free in their homes until
    the bank shows them the original note. Becky Yerak, Distressed Homeowners Fight Foreclosure By Taking Their Lenders To Court, Chi. Trib. Feb. 22, 2009, at C1. This tactic, however, does not work in Illinois.

    ¶ 26 For over 25 years, the Foreclosure Law has been interpreted as not requiring plaintiffs’ production of the original note, nor any specific documentation demonstrating that it owns the note or the right to foreclose on the mortgage, other than the copy of the mortgage and
    note attached to the complaint. First Federal Savings & Loan Ass’n v. Chicago Title & Trust 4 Co., 155 Ill. App. 3d 664, 665-67 (1987). First Federal interpreted former section 15-201 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, ¶ 15-201), a predecessor to the current section 15-1506(b) of the Foreclosure Law (735 ILCS 5/15-1506(b) (West 2010)).
    http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1130380.pdf

  30. Thanks Christine!

  31. http://stafnetrumbull.com/wp-content/uploads/2013/12/11.19.2013-Deposition-of-Deborah-Kaufman-official-copy.pdf

    This is the depo by att Stafne (a few pages from her attorney) of a woman who identified herself as the vice president of a substituted dot trustee.

  32. Where can I find a recording or transcript of Judge Hollowell’s CLE Seminar?

    Thanks.

  33. Where can I find a recording or transcript of Judge Hollowell’s CLE seminar?

    Thanks.

    Linda V.

  34. Life Estate vs Living Trust

  35. Everything is rigged—EVERYTHING…global unified wake-up calls are the only thing that will change any of it…

    http://globalskywatch.com/featured/How-The-World-Really-Works.html#.UvvVffldVCY

  36. Can anyone point me to a case or two where the court actually said the bankster didn’t have to produce the note? I’d like to read any ruling which said that.

  37. All i can say is my case in Az now both federal and state courts and in appeal 9 th circuit is the date i say it “poster child ” of everything that is wrong
    With how foreclosure cases were processed and the abuse of due process of legal rights that hatched out of that ” power of sale ” in the contract. Thing is its done and it is shameful.
    We must hold those who caused further harm And those parties who acted in concert- accountable for their acts and concealment and fraud upon the court.

  38. The corruption of the rocket docket lies with not accepting “Produce the Note” With the Produce the Note doctrine we solve the problem in 5 minutes.

    NEVER AGAIN
    this just an opinion.

  39. Property Due Process Equal Protection ….. These Are Human Rights under US and International Law. I am CURRENTLY suing Eric Schneiderman and the State of New York and North Carolina Federal Courts for VIOLATION of My Human Rights. I am in the 4th Cir Court of Appeals in Virginia ….. Witham vs New York State see http://dockets.justia.com/docket/circuit-courts/ca4/13-2482

  40. Totally agree with you about never giving up. As I have said before: “what goes up, must come down.” The general laws of the universe cannot be dispensed with. The banks have to go down, or the US dollar goes down. Uh, oh! No more giant, bloated military industrial complex with the corrupted courts attached. Thanks for the heads up about Vince Kahn. I will take a look.

  41. If only that statement regarding “no one sues just for kicks” and how judges relate to this were true. I live in a non judicial state and I cannot tell you how many thousands upon thousands of homeowners have RIGHTFULLY sued pretender lenders coming in trying to foreclose on them with no wet ink note, bogus assignments, no clear chain of title and a host or other highly criminal behavior like forgery and fraud and the judges are still handing over homeowners greatest assets to these thieves. It is beyond disgusting…. people have to STOP walking away in defeat.

    If you cannot fight for your home, think about what your children’s futures are going to look like if this is allowed to continue. There will be no property rights by the time they are grown if we ALL do not start sticking together and fighting the pretender lenders, the courts and even the Judges, if that’s what it takes.

    Educate yourselves. There is a gentleman that goes by the name of Vince Khan and he teaches all about the securitization process from beginning to end. When I first started this journey, I read everything I could get my hands on by him and scant few others that enlightened me enough to find the fraud in my own mortgage.

    I won’t lie, this is not for the faint of heart and you need to make a commitment to the process from the very beginning and STICK to it. Surround yourself with others that are doing the same thing, for support and never back down, never give up.

    By the time I am all said and done with this process, they will have spent ten times the value of the home they are trying to steal, in legal fee’s. And in the end, I will still win.

  42. Court Report

    Thursday, May 23, 2013

    After discovering she received an 18-month commercial loan instead of a 30-year residential mortgage, a Montana woman sued the bank and the title company that conducted the closing for fraud, breach of contract, negligence and slander of title. Among other things, she alleged the title company committed fraud when it revised the legal description to describe a commercial condominium rather than a residential one.

    The case is Mary McCulley v. American Land Title Co. and U.S. Bank of Montana (Supreme Court of Montana, No. DA 12-0117).

    In 2006, Mary McCulley purchased a condominium in Bozeman, Mont., for $395,000. She sought a residential loan from Heritage Bank, predecessor to U.S. Bank of Montana for $300,000. American Land Title Co. (ALTC) provided a commitment for title insurance. McCulley signed a promissory note and signed a deed of trust as collateral. The deed indicated that the condo was for residential purposes only. Subsequently, however, and purportedly without McCulley’s knowledge, ALTC change the designated use of the condo in the deed from residential to commercial.

    After closing in June 206, McCulley asserted she discovered the bank had issued her an 18-month, $300,000 commercial property loan rather than the 30-year residential property loan for which she applied. When she was unable to obtain long-term refinancing on the property, McCulley signed a warranty deed transferring ownership of the condo to the Central Asia Institute. She used the proceeds to pay off the loan.

    In June 2009, McCulley sued ALTC and U.S. Bank for negligence, breach of contract, fraud, slander of title, intentional infliction of emotional distress and malice. All parties motion for summary judgment. The district court granted ALTC’s and U.S. Bank’s motions for summary judgment and denied McCulley’s. McCulley appealed the court’s opinion.

    The Supreme Court of Montana affirmed in part and reversed and remanded in part the lower court’s ruling.

    On appeal, McCulley argued that the district court erred in granting summary judgment to ALTC and the U.S. Bank because genuine issues of material fact exist as to each of her claims.

    The court noted that it is undisputed that after McCulley signed the original deed stating the condo could be used for residential purposes only, ALTC changed the deed to reflect that the condo was to be used for commercial purposes only. ALTC then recorded the revised deed. McCulley argued that this change, unbeknownst to her, later caused her to be unable to obtain refinancing through a conventional long-term residential loan. However, the court noted that the bank and McCulley executed two subsequent modifications to the deed of trust, both of which expressly reflected in the legal description of the property that the condo was to be used for residential purposes only.

    The court agreed with the district court in determining that the legal description in the deed of trust and any subsequent changes thereto did not diminish McCulley’s legal title to the condo nor did it change the use of the property or the zoning classifications of the property.

    “As noted by the district court, while a deed of trust contains a legal description of property subject to transfer, such description does not alter the use, nature or zoning of the property,” the court stated. “Zoning in the City of Bozeman and in Gallatin County is controlled by specific ordinances and regulations. Moreover, the deed was subsequently revised—twice—to correctly reflect the use of the condo as residential. Therefore the original deed was no longer controlling. Under these circumstances, McCulley failed to establish that ALTC’s change to the original deed breached a duty owed to her or that such breach caused her injuries warranting damages. Consequently, the district court did not err in granting summary judgment to ALTC on this issue.”

    McCulley also claimed on appeal that ALTC committed fraud when it revised the original deed. The court noted that McCulley presented no legal argument or authority to support her contention.

    “As we have stated on numerous occasions, under M.R.App. P. 23, we are not obligated to develop arguments on behalf of parties to an appeal, nor are we to guess a party’s precise position or develop legal analysis that may lend support to his position,” the court stated. “Because McCulley has failed to develop any legal argument, authority or analysis for her claim of fraud, we do not address the argument further. We therefore affirm the district court order of summary judgment in favor of ALTC on the issue of fraud.

    “We now turn to McCulley’s various claims against U.S. Bank,” the court continued. “McCulley alleges the bank engaged in negligence, fraud, breach of contract, breach of the covenant of good faith and fair dealing, and infliction of emotional distress. To a significant extent, McCulley attempts throughout her arguments to blame the bank for the actions of ALTC. The district court rejected this proposition, as do we. McCulley appeals only the district court’s rulings pertaining to breach of contract and the covenant of good faith and fair dealing, negligence and fraud. We address her claims against the bank in turn.”

    Turning to McCulley’s allegation of breach of contract, the court noted the district court ruled that because U.S. Bank did not alter the usage restriction change on the deed of trust, U.S. Bank did not breach its contract with McCulley. The court agreed, further noting that the actual loan contracts were not breached.

    “McCulley signed multiple documents at the closing, comprised of close to 100 pages of fine print,” the court stated. “In the three places in the documents where the term of the loan was actually set forth, a maturity date of Dec. 16, 2007, is reflected. Therefore, not withstanding the potential viability of other claims against the bank, the bank cannot be said to have breached the written contracts.”

    The court did reverse and remand the district court’s decision as to McCully’s fraud claim. She argued that the bank committed fraud by engaging in bait and switch tactics to change her approved 30-year residential mortgage to an 18-month balloon construction loan without her knowledge. She argues that the bank was in possession of the buy-sell agreement wherein McCulley indicated that the zoning determination was a condition of purchase; therefore, the ban should have informed her from the beginning that the commercial zoning of the property would preclude her from obtaining the residential 30-year mortgage for which she applied.

    McCulley further argued that the bank untruthfully claimed to have sent her the letter dated May 26, 2006, outlining the terms of her loan and explaining that she was getting an 18-month consumer bridge loan in the amount of $300,000. She denied ever receiving the letter and argued that the letter is formatted as an interoffice memorandum, in contrary to the terms of the Truth in Lending statement and Good Faith Estimate.

    McCulley also testified that she had no idea that the bank was extending only an 18-month commercial loan instead of a 30-year residential loan.

    “Along with her Realtor, she attended the closing just three weeks after applying for her loan and receiving documents from the bank outlining the terms of the 30–year mortgage,” the court said. “Both McCulley and her Realtor swore under oath that no mention was made at the closing of the fact that she was receiving an 18–month commercial loan, and that they both assumed that she was closing on the 30–year residential loan as previously contemplated. In fact, she asserts that she was unaware that she had received an 18–month loan until the bank notified her that her balloon payment was coming due in December 2007.

    “In light of the foregoing chronology of events, and in particular noting McCulley’s arguably legitimate contention that the May 26 ‘letter’ was not a letter to her at all, we cannot conclude that there is no genuine issue of material fact relative to McCulley’s claim of fraud on the part of the bank,” the court continued. “McCulley maintains that the bank sent her documents outlining the terms of a 30–year residential mortgage and that it closed on the loan not three weeks later without a mention that the terms of the loan were radically different than those initially agreed to between the parties. Although inartfully, McCulley has set forth sufficient facts to raise a genuine issue of whether a false and material representation may have been made to her, that she acted upon it in ignorance of the true facts, and that the bank intended her to do so, resulting in damages. She supported these claims with testimony in her deposition that she never received the ‘letter’ and that the bank did not explain to her the change in the terms of her loan. It bears repeating that summary judgment is precluded in cases in which genuine issues of material fact exist.”

  43. Craig Roberts is of the opinion that the Feds must allow a few big banks to croak in order to save the mighty bucks or see it collapse and risk WWIII. I don’t believe it will go that far but one thing is certain: things are happening behind the scene that we don’t know about. And… where is all that money going anyway? Everyone knows it isn’t going toward compensating homeowners. Might there be a scrambling push to repay this country’s debt a.s.a.p.?

    Wednesday, February 12, 2014
    BofA, Goldman among banks facing $16 billion in fines

    NEW YORK (MarketWatch) — The settlements of lawsuits so far with major banks pave the way for some $16 billion in additional penalties to be paid by banks including Bank of America and Goldman Sachs Group over mortgage securities sold to government-seized housing giants Fannie Mae and Freddie Mac.

  44. “The current thinking amongst court administrators and the judges who preside is the presumption that the truth lies in the assertions of the party initiating foreclosures in both nonjudicial and judicial states and dilatory tactics amount to lies of the borrower.”

    I have said it over and over: judges have a visceral knee jerk reaction in any lawsuit initiated: “no one sues just for kicks. Legal actions cost money and business and/or people would, therefore, never file unless they had been wronged. The bank filed. Therefore the bank was wronged.” It holds true for any legal action, foreclosure included.

    Don’t read anymore than that into it. And that’s why attacking the bank first is the best policy.

  45. Agreed where are the class actions

    Sent from my iPhone

    >

  46. If we have a federal lawsuit against the State for systemic violations of due process, what federal statutes are we addressing? This also means that there are criminal charges/matters mixed in there as well. The courts usually shy away from criminal charges IMHO.

  47. It smells like Corruption. But what do I know?
    NEVER AGAIN.

  48. Mr. Garfield, I may be wrong, but a Federal Lawsuit only addresses government’s privilege inherent to its persons, those being the ones contemplated by the fourteenth amendment which does not include those not enfranchised through it lest others permit the presumption of fourteenth amendment standing to stand unrebutted. The non-enfranchised are the men and women who act by unalienable right without the terms of Federal citizenship and without the terms upon which party to a foreclosure action is predicated. Federal lawsuit has not the capacity to bring claim upon injury of unalienable rights of man / state citizen, but only upon privileges (civil rights) violations under either non-positive law or positive law, whichever be the cause of action. So long as a man conducts his affairs in a manner which fails to rebut the presumption that he represents ‘person’ of fourteenth amendment status, the complaint brought under that presumption will advance against the party/’person’ named. The remedy does not lie within the case. The remedy lies by exercise of rights not enfranchised by legal evidence noticed to the men who act as administrators upon the case by authority presumed upon prima facie evidence standing in the absence of superior legal evidence which extinguishes the presumptive evidence.
    Robert Laurence Gavett 02/12/2014 Thank you for taking the time to read.

  49. I got a letter of entry of motion for final judgment i have to write an objection that is going to be part of my argument saying that my lawyer signed a constant order and did not explain it to me that i was giving my right to challenge them in court i want my day in court It violates my due process. Plus there is a lot of fraud to back it up and if they do grant it doing so would harm me and put me in disadvantage. I could defend my self in future proceedings and i am getting it verified through a forensic audit that they have they right to fore-close and all the assignments are invalid. I am going to ask the judge to delay the motion of entry for 45 days. This would not do any harm to them, but it would to me. If they are the true party of interest and have a right to it it should not affect them in anyway. What do you think? Someone respond dammit.

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