Florida 4th DCA: JPMorgan Chase Fails Standing

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See Wright v JPMorgan Chase 4th DCA Fla 2015 Case No 4D14-565

This is a case we will be talking about tonight on the Neil Garfield Show. Appellate courts are starting to apply “science” to their ruling and they are rejecting the sloppy application of general concepts like “the holder.” If they had done this to begin with several million foreclosures would never have happened.  Bravo to Matthew Bavaro and Laura Hoy of Loan Lawyers, LLC in Plantation Florida — my old stomping ground.

Here the 4th DCA not only reversed but ordered judgment in favor of the homeowner — no new trial. Chase made the usual argument about being a wholly owned subsidiary of JP Morgan Chase, attempting to blur the lines of legal entities. You can’t pick up one end of a stick without picking up the other. If you want to say that Chase Bank is a separate entity then they will be treated as a separate entity. And THAT means if you want to say that a loan was sold from Chase to JPMorgan Chase the rules are the same as any other sale — contract, consideration, offer and acceptance. This is the first case I have seen where that transfer was not “presumed” based upon absolutely no facts.

And the other thing that the 4th DCA caught was the tactic of using a document but “forgetting” to proffer it into evidence. This has been a successful tactic for servicers and banks for the last 10 years. The reason for it is that they get to use something from a document in court but they are not stuck with rest of the contents. The PSA is one such example and powers of attorney and assignments and endorsements lead the list. So they get the advantage of pretending it is in evidence just like they are pretending to be a lender or an authorized representative of the lender. The 4th DCA caught them on this and said if you don’t introduce it in evidence (allowing for inspection and cross examination on the WHOLE DOCUMENT) then no judgment can be based upon it. Such a document is not “competent evidence.”

And it is time to review the difference between information and evidence, data and proof. One may be very persuasive but irrelevant and the other might be relevant and not persuasive. Tune in tonight on the Neil Garfield Show.

42 Responses

  1. If the trusts existed….the Warranty Deed. To the capital asset funding. Co. Would need to be filed…Right?

    Now if they go and record the notes….oh boy!

    So witch is it?

    If MortgagyMortgagyou were old and unlikely to repay before death…you wouldn’t know they stole the titles….

    If they set you up to fail….you wouldn’t notice t stole thebtitle to the estate ….after all…you would be bK

  2. Well that..and being pressed to forge documents…
    LPS….

  3. The realestate tax bill and insurance bills come in his name and my name. Hint Hint

    I stopped closings loans because of the homestead exemption waivers. People bite the messenger…

  4. Lets talk about the case Neil posted above.
    Title is further slandered by Chase….
    Everybody is going to court sooner or later. Sooner if you sell to a family member. I have no use for liars or thieves!

  5. The kicker..I am not on title at the recorders office…I am not a borrower on the note.

    But the Mortgage Note….OMH! !!
    Public Records said and they tried to get me (a non borrower) to refi my mortgage (notice I did not say note).

    Nahhh….I will just pay off his note…..
    BUT I WANT FULL LEGAL AND EQUITABLE TITLE IN THE FORM OF A SALE FROM HIM.

  6. The common thread between the parties was the…..
    Lawfirm Trust and the CapitAl Asset Funding .the party I granted a WD to at closing….silly me…I thought they were the grantors.
    MISREPRESENTATION

  7. At closing there were 2 deeds….
    One fraud was recorded..One that was induced under misrepresentation. ….
    The Warranty Deed we granted to the Grantee.

    What gOT the ball rolling was me asking the sellers estate why the warranty deed she granted us was not filed and why was there a trust deed granted to my husband and her deceased parents law firm. Basically why was her deceased parents revocable trust still doing business?

    Shit only got deeper from that point….

  8. MERS corp…google their capital asset funding lines members.
    Of course..many are now gone.
    A search of the companies they do business with or merge

  9. Yes we are…..
    The Grantee was the Capital Asset Funding cancer.
    Long Arm of the Broker
    So just what did we irrevocably transfer to Mers?
    They separated legal and equitable title.

  10. Assuming a trust may “fail” (all I can do since I know nada), then there is no trust to which to assign anything, right? If trusts can actually fail, and thus there’s no trust to BE an assignee, why are we missing this critical argument? As to a failure, I mean, what? a trust fails when X% of its assets fail to perform (and the derivatives become worthless unless insured or guaranteed)? Then, yes, what of the loans in that trust? Does anyone actually KNOW trusts can fail? If it fails as a remic,
    can it now be something else or as an entity is it toast? Generally, I think, a common trust wouldn’t be or might not be toast simply because its assets are toast. I wonder…. and partly because the assignments are NOT generally to the trust – they’re being done to the trustee, which I find ‘odd’. If you formed a family trust, say, you would NOT convey jack to the trustee – you’d convey whatever to the trust, itself, like say you put title to your house into a trust for your kids. A trust is simply another form of legal entity and it may have and own assets just like a corporation or any other legal formation. So why are these assgts being executed to the trustEE? Are we getting duped worse than we think?

  11. SC: “JG …. The Higher Ups stated….
    There are NO trusts.
    What happens if the trust fails?
    Do the assets go back to the depositor..granter…?
    Unclaimed assets escheat…Abandoned!”

    I have no idea what happens if a trust fails nor how one fails. No one around here who does know ever articulates the ‘how’ and ‘what happens’. I’d LIKE to know. Fwiw, I’d also like to hear anything knew that small group (?) has learned about false defaults. Way I got it, that was entirely do-able (not to be confused with lawful or ethical) and rotten to the core…..could charge a trust, say, for a 500k note when only 50k of it was new money.
    Yes, unclaimed assets may go to the state by abandonment mechanism, but doubt that would happen with these loans. Maybe that’s another reason ‘Mers’ is the beneficiary – keep a path to unclaimed assets or otherwise available assets, if any. Cute (not).
    That’s just speculation, but still imo a glimmer of a plan which wouldn’t surprise most of us one bit.

  12. If I recall even irrevocable can be undone if a trust is not profitable enough to pay ….for services.

    No Trusts…No Escrows

  13. JG …. The Higher Ups stated….
    There are NO trusts.
    What happens if the trust fails?
    Do the assets go back to the depositor..granter…?
    Unclaimed assets escheat…Abandoned!

  14. If notes are regulated by 9 as Mers swore, they’re sold and assigned by a writing and that’s why ‘mers’ purports to sell and assign them with the deeds of trust / mortgages.* The reason it’s ‘mers’ instead of Joe Shmoe is (almost) singularly to keep the identity of Joe Schmoe and any of his predecessors secret. Not private – SECRET. We won’t get a writing out of Joe Schmoe because Joe Schmoe would have to produce the writing by which he (okay, “it” really) acquired the note and so on, pus we’d know his id – which is supposed to be the depositor. They don’t have those. They likely relied on electronic entries (voluntary with no oversight I might add) into the mers’ database. There is no chain from Originator X to the trusts for these notes. There is only an alleged assignment from a computer program known as mers (executed by a member of the cp’s owner). But that’s distracting here, actually: there’s no chain for these notes.

    An assignment is a culmination of an agreement to buy and sell, just as a deed is the culmination of our agreement for me to buy your house. Where’s that agreement? The agreement is the document, if any, which would demonstrate that a trust agreed to buy, and particularly to 1) make a late purchase of 2) a loan in default.

  15. 9th Circuit Court of Appeals

    In RE Palmdale Hills Property, Llc., 654 F.3d 868 (9th Cir. 2011)

    “Whether Lehman satisfies the “person aggrieved” test is a question of fact that is reviewed for clear error. Duckor Spradling & Metzger v. Baum Trust (In re P.R.T.C., Inc.), 177 F.3d 774, 777 (9th Cir. 1999).

    A. Article III (constitutional – sic) Standing

    Article III standing is a necessary component of subject matter jurisdiction. (the other is prudential standing – sic) To have Article III standing, Lehman must show:

    (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
    hypothetical;
    (2) the injury is fairly traceable to the challenged action (here non-payment – sic) of the defendant; [fn4] and
    (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
    Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOO, Inc., 528 U.S. 167, 180-81, 120 S.C.

    The U.S. Constitution vests our courts with the power to hear and adjudicate disputes between litigants, i.e., it gives courts authority. A caveat of that authority and jurisdiction is that the claimant before a court must have suffered its own injury caused by the other party.

    jg: A person in possession of a bearer note, say, has not demonstrated (or generally even alleged) his injury by its non-payment. (He just says ‘I’ve got this bearer note and art III of the UCC says I may enforce’) His injury is the only thing which may invoke the juris of the court, not his possession or his alleged right to enforce under the UCC.. He is not aggrieved for not being able to enforce a bearer note, having suffered no injury by its non-payment. Also, as to THESE notes, he has other bars to meet, those recited in the governing instruments of the loan.

  16. Lest we forget:

    Phyllis Horace v. LaSalle Bank National Association as trustee for Certificateholders of Bear Stearns Asset Backed Securities I LLC Asset Backed Certificates Series 2006-EC2, MERS, Encore Credit Corporation, EMC Mortgage Company, and Bank of America as successor in interest to LaSalle Bank National Association, Case No. CV-2008-362 (Alabama )
    Order:

    “First, the Court is surprised to the point of astonishment that the defendant trust (LaSalle Bank National Association) did not comply with the terms of its own Pooling and Servicing Agreement and further did not comply with New York LAW in attempting to obtain assignment of the plaintiff Horace’s note and mortgage.

    Second, plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement created by the defendant trust (LaSalle Bank National Association). Indeed without such Pooling and Servicing Agreement, plaintiff Horace and other mortgagors similarly situated would never have been able to obtain financing”.

  17. Hilmon v MERS et al 06-13055 Dkt 19 02/01/07 ED MI SD,
    From “MERS” mtd or alternatively for SJ:

    “Additionally, in a “brief” attached to his complaint, Plaintiff
    alleges that the promissory note is a negotiable instrument,
    and that MERS was not a holder in due course and therefore
    could not collect on the debt owed under the note.

    I. PROMISSORY NOTES ARE NOT GOVERNED BY ARTICLES 3 OR 4 OF THE UNIFORM COMMERCIAL CODE.

    PROMISSORY NOTES ARE NOT NEGOTIALBE INSTRUMENTS under the UCC Article 4; rather they are
    security interests under Article 9. Specifically, pursuant to MCL Section 440.9102 (mmm) promissory note means an instrument that evidences a promise to pay a monetary obligation, and does not evidence an order to pay, nor does not contain an acknowledgment by a bank that the banks has received for deposit a sum of money or funds.

    Plaintiff’s argument seems to be that the promissory note
    held by MERS is not valid because MERS is not a holder in due
    course. Under UCC Article 3, a holder in due course is used to
    describe a valid property ownership interest in a negotiable
    instrument. As stated above, a promissory note is not a
    negotiable instrument to which the Uniform Commercial Code’s
    holder in due course analysis applies. Diversified Financial
    Systems, Inc. v Schanhals, 203 Mich. App. 589; 513 N.W.2d 210
    (1994). As such, Plaintiff has failed to state a claim upon
    which relief may be granted.”

    Oh.

  18. I’ve been listing some cases wherein MERS has made some “pretty interesting” assertions in sworn testimony or whatnot. In this one, it claimed to have a bankruptcy department!!

    “NV BK 08 – 16180 (X. Michelle Wxxxx, debtor)

    Creditor: (3543032)

    Mortgage Electronic Registration System
    ATTN: Bankruptcy Department (jg: here)
    P.O. Box 293150
    Lewisville, TX 75029-3150 Claim No: 1

    Original Filed Date: 06/27/2008
    Original Entered Date: 06/27/2008

    Status:
    Filed by: CR
    Entered by: MOSS, CODILIS, L.L.P. (cr)
    Modified:
    Amount claimed: $1099466.53

    Secured claimed: $1099466.53

    History:
    Details
    1-1 06/27/2008 Claim #1 filed by Mortgage Electronic Registration System, Amount claimed: $1099466.53 (MOSS, CODILIS, L.L.P. (cr))

    On info and belief, Mers has and had no address nor presence in Texas and further, any mail sent to “Mers” is forwarded to the member-servicer. Now, one may choose to get mail at an address other than one’s real address, but one may NOT pretend to 1) have a bk department in 2) a state in which it has zero presence. It’s willfully misleading to the court and the borrower aka gaming the system aka playing fast and loose. There just isn’t anything these guys won’t say to get what they want. Notice that Mers is identified as the CREDITOR! Do tell, Biil dearest and Ms Horstcamp, how’s that? (Hey, Nebraska, this would’ve been about the same time they were swearing mers had no interest in loans)
    How can any court or anyone with even half a brain grant these people one iota of credibility????
    (And I’m tellin ya, something’s rotten in that Lewisville, TX and has been for many years, starting with title insurance scams.)

  19. So Cal. … Got Proof?
    No…I knew you didn’t.
    That is a bankster game of hearsay and conjecture.

    I have successfully rescinded a mortgage….have you?

    I knew about standing back when you were in diapers.
    Its a not a so new subject..I have successfully defended a case on lack of standing….Have You?

  20. Casual or interested readers: SHADOW CAT is a TROLL. Its only purpose is to cheapen and denigrate this blog/site….and on the bank’s payroll. It only shows up and freaks out when something noteworthy occurs, spreading confusion and misinformation.

    Reader be wise.

  21. A trustee agreement is ineffective without the deed.

  22. Oh…the creditor exists alright .
    But think about this..why when MERs was created did they stop filing the notes with the mortgages? And how is a mortgage a encumbrance yet not a lien. And why have they not filed the deeds ? Trustee Agreements?

    The trust deed is ineffective without a trustee agreement recorded with it. But the Warranty Deeds????

  23. Investors got the mortgages but not the notes…
    CW testified they didn’t forward them to the trusts..they held them all fuzzy like..during the conversion process.

  24. Deb, I think it will not take years for the rescission issue to be hashed out. I think it will take one year or sooner because it is something that really goes to bankster/servicer proving the are paying the creditor who does not exist. Allegedly, the trust is the owner/creditor, but trusts do not own notes. The issue of securitization fail dovetails nicely here.

  25. In the beginning I went to payoff my husbands loan. Not rescind.
    We don’t do business with people like that. But when I applied for title INS on the house…I shook my head…I could not believe I had not done a title abstract on my own title after I was ccertified.

    The Mortgage says it all..Make them take a position. ..
    They can not have it both ways…then you Nail them!

  26. And furtherance thereof

  27. And its called concealing material facts

  28. Yep july 31 2010 i filed suit i rescinded in 09 it should be over

  29. Right SC and innthere lies my almost 6 yr battle

  30. Its called Conversion

  31. DW… Its not about the true creditor…..
    Its about the Original Creditor…..

    When they sue..its their claim…its the Plaintiffs note…
    When you sue…its your claim….its the Plaintiffs note..

    Lost Notes my Grass!
    Abandonment my Grass!

  32. right SC
    If you rescind that is the contract and you are asking for a payoff amount to tender to the true creditor …the SERVIcer collects payments their job when informed of rescission is to inform the party ( ies) with a SECURED interest that You rescinded then the clock ticks
    If they do not disclose why, anyhoo its a safe bet its going to be hashed out in court for a few years yet, pending a few more jesinoski SCOTUS decisions.
    I think i got it right, we shall see.

    Lay opinion Not a lawyer not legal advice, always consult with professional legal council.

  33. “And it is time to review the difference between information and evidence, data and proof. One may be very persuasive but irrelevant and the other might be relevant and not persuasive. Tune in tonight on the Neil Garfield Show.”

    It’s way past time. Dwight, if you’re around here, you might particularly benefit from NG’s deal today if they actually get into this issue.
    If courts take x or y as evidence when it’s not, of course they shouldn’t, but someone LET them generally. It’s been massively disheartening when that someone has been 1) an attorney who’s 2) getting paid.
    I do understand this isn’t a lightweight issue, but it’s nonetheless info one needs or one is toast. Many of us don’t or didn’t have attorneys (and if we did, would it help, or do the attorneys who take on homeowner defense more often than not fold because they slept thru evidence?) This is borne of the number of cases I’ve read, and one in particular which I read a couple days ago, where I felt the homeowner’s attorney did in fact roll over after what was no more than smoke and mirrors got thrown at him. Maybe it’s easier to be objective when one isn’t ‘involved’ and if that’s the case, attorneys should have ‘play dates’ with peers or get the h out of the sand box. imo.

  34. Did you send them any money???
    Hahaha…read TILA…it talks about how the exchange is to take place.

    No your Honor..but I did try to. They obstructed payment by refusing to provide me with a payoff. I hired an attorney and I still didn’t get one.

    PROOF! Its all about TRUTH!
    When you go into a courtroom…You better be prepared to show proof!
    That goes for Both sides!

  35. David,
    Yes me and the attorney for the plaintiff appeared in court.
    In my last trial, the plaintiffs attorney appeared via phone, said very little, till the trial date. when a attorney did attend.
    They never said much, accept to state their names, the judge asked all the questions.
    In Florida the Judge prosecutes the case.

  36. was settled as always, for big $$$$$$$$$$$$ . under seal.

  37. Good work David.
    I think this was shot down, or reduced by the Beach decision, that said that the party filling had to return the funds, or file court action to rescind. This conflict in the higher Federal courts, is what compelled, the Supreme Court to review the law and give us the
    Jesinoski v Countrywide decision.
    In my case I filed rescission on Feb 11 2009, on the so called loan of April 21 2006.
    I filed this via certified mail to the plaintiffs Attorneys, the court, and to the home offices of Liquidation Properties Inc AKA City Holdings Inc.
    At the next hearing, the Judge asked me “DID YOU SEND THEM ANY MONEY?”. I said “no your Honor, I did not”. He threw it back on his desk. This was within the twenty day time time allowed. I think it helped them to ignore the notice. I won the case, years later on the least issue, of significance that I had filed, the non controversial issue of standing.
    They refiled, and I am in round 2. I filed a notice to the court, giving the documents, and a copy of the Supreme Court decision.
    This was a week before a Summary Judgement hearing. They postponed it for two weeks, and at that hearing, the Judge who said that he had not received it, although I hand delivered it to the clerk of the court. I gave him my copy to read. He asked me “DID YOU SEND THEM ANY MONEY?”. I said “that’s the same question Judge Rondolino asked me back in 2009”. He said “at least we are consistent” I told him that we had already fought a over five year court battle on this, and that I had won on the issue of standing. he told the plaintiffs attorney ” I am not going to grant a Summary Judgement on a case that lost a five year court case on standing, this will have to go to trial.
    Now I am looking for a lawyer to sue them for damages for the last case and this one two.
    Any suggestions anybody?

  38. David, what is the outcome on this case? I am going to say the same thing I have said before: what is the mechanism that allows lawyers and judges across multiple courts in multiple cases to use the same nefarious methods to throw the borrower under the bus. I have seen it in my cases across the board. Showing me the Note outside of the courtroom so the judge could not see it and entering it into the record without cross-examination and without the judge looking at it. Just sayin…

  39. Break A Leg …. Leave them without Standing.
    I have been saying this for years……
    Judges do get it!

    They also understand the SOL…..

  40. I think we are seeing some light at the end if the very dark tunnel, its a good day.

  41. IN THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
    WMC MORTGAGE LLC : CIVIL ACTION
    :
    v. : No. 10-3118
    :
    SARAH E. BAKER, et al. :
    MEMORANDUM
    Juan R. Sánchez, J. February 28, 2012
    This case concerns the consequences of a lender’s failure to honor a borrower’s timely
    exercise of the right to rescind a mortgage refinancing loan under the Truth in Lending Act (TILA),
    15 U.S.C. § 1601 et seq., more than six years ago.

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