4th DCA Florida: Exploding the Merger Myth

Achieving standing via merger also requires that the surviving entity prove that it “acquired all of [the absorbed entity’s] assets, including [the] note and mortgage, by virtue of the merger.”Fiorito v. JP Morgan Chase Bank, Nat’l Ass’n, 174 So. 3d 519, 521 (Fla. 4th DCA 2015).

see http://4closurefraud.org/2016/06/07/fl-4th-dca-segall-v-wachovia-bank-na-reversed-wachovia-failed-to-prove-standing-to-foreclose/

Finally the courts are turning back to the simple rules of law that always applied until the era of false claims of securitization. Hopefully this decision will be persuasive authority in all jurisdictions. As stated in other cases, the banks can’t continue to operate using multiple choice assertions. Either their entity is real or it isn’t. Either they acquired the loan or they didn’t — and the fact that there was a merger does NOTHING for them in asserting transfer of the loan. They must show that the subject loan was in fact acquired by the surviving entity in the merger. This was always the law before and now we are simply turning back to it.

12 Responses

  1. @ David Belanger ,

    I don’t want to sound like a broken record but there is a single “trust” that is by far the best test case for a class action… Option One Mortgage Loan Trust 2007-FXD2 , it has one attribute that makes it unique… Bank of America lost the case with AIG ( 11 CV 10549 US District Ct , Central District CA) because AIG proved that BAC was the underwriter and not Option One,,, every stinking note in the trust is VOID as the named lander has already been proven to be a total and complete stranger to the note…

    We get that one ,, set some precedents and move on to another…

  2. I am of the opinion that, at least, if one supreme state court in a State of the UNITED STATES OF AMERICA finds that banks cannot foreclose with defective assignment, then it applies to all states of the USA as otherwise it would be a discrimination on the people in that state under equal protection law guaranteed by the 14th Amendment to the constitution. Same thing applies to all other States with no anti-deficiency statute when there are 11 states prohibiting anti-deficiency law. What’s the point in going after poor for thousands of dollars? It’s mere waste of time and clogging the court system. Why are different laws in different states when it comes housing in a nation when politicians talk about unity.

    President Obama needs to use his executive power on this matter before he leaves office. Otherwise I’m afraid that no one is going to fix the housing problem and the country may plunge into depression.

  3. Not a Class Action, but many of the same arguments are made….wonder whatever became of this one (it has no case number). Was it part of the Settlement somehow?

    http://www.fhfa.gov/SupervisionRegulation/LegalDocuments/Documents/Litigation/FHFA_v_Royal_Bank_of_Scotland_Complaint.pdf

    Has extensive list of Trusts involved (along with their alt names).

  4. i agree david belanger (@revolutionnow1) we need a class action that would include a refund of all mortgages paid, a debt jubilee on all existing mortgages, those in foreclosure, and homes stolen by fraudclosure. then they need to regroup and start over with regulations in place so this can not happen again to another generation. for example look at me and my husband 50 something 10-15 yrs from retirement in manufactured default on folks with 760+ credit scores for the past 30 years ???? 1st of all in Florida a state of emergency should have been called on the coast of Florida, and all other gulf states aftre the BP oil spill. we all lost alot of income. just take my 2008 and compare to my 2011 Tax return is 30k less in 2011. yet hey have allowed most of Florida to be foreclosed on and BP they do not want to pay restitution for lost wages. they have 20 billion but want to keep as much as possible. . also this happened because mortgage servicing was not making any banks any money but what did make them money is PMI, LPMI, shorts, derivatives , credit default swaps. it is such a shame that this continues to occur.

  5. Joe Brown may enter a contract as Joe Smith and it may stand up. But Mary Esther can’t make up a person who doesn’t exist to have a contract with. “MERS” nor anyone else may purport to assign anything to a non-existant party. Not only does it convey nothing, imo, its also a slander on title if for no other reason than because it’s recorded for the purpose of reliance thereon.
    lay opinions

  6. One may contract under a false name, but one who doesn’t exist (by any name) may not contract as a matter of law. There’s never any evidence showing that any particular trust even existed in the first place AND that it exists today.
    This isn’t to say that people who are really, say, merely a group of individuals, may contract as “XYZ Trust” (to gain the benefit of the trust a san entity, whatever that might be, even if there’s no benefit, actually – iimo). Where’s the evidence XYZ Trust is an ongoing concern? I’ve never seen any.

  7. WHERE ARE ALL THE HONEST LAWYERS WILLING TO MAKE A CLASS ACTION FOR ALL OF US IN AMERICA. ????? THE FEW OF THEM FROM EACH STATE IS ALL THAT WOULD BE NEEDED.

    SO WHY HASN’T ALL ATTORNEY NOW, THAT THE FBI AND DOJ HAVE SAID THAT THERE IS NO WAY TO FIND OUT WHO OWN LOANS IN A SECURITZATION OF MORTGAGES.
    COME TOGETHER AND DO A CLASS ACTION SUIT TO INCLUDE ALL AND EVERY ONE THAT HAS BEEN FORECLOSED ON OR GOING THRU FORECLOSURE. ALL AG’S
    In a filing unsealed on June 3, 2016, the Department of Justice (DOJ) confirms what many of us have known for years. Nobody, not even the U.S. Government, with massive resources, can determine who owns your loan and has the right to collect on your mortgage.
    The information comes from case files unsealed on June 3, 2016 by federal Judge Yvonne Gonzalez Rogers of the Northern District of California in the case of the United States v. Discovery Sales, Inc. The case involves some 325 fraudulent loans originated by Discovery Sales, Inc. (DSI) between 2006 and 2008, many of which were then sold toWells Fargo Bank and JP Morgan Chase to securitize.
    The Discovery Sentencing document on page 9 states:
    The originating lenders who made loans to purchase DSI properties, including Wells Fargo and J.P. Morgan Chase, generally would not keep the mortgages and thus did not end up losing money as a result of the DSI fraud scheme. Instead, they would sell the mortgages to other banks who would package them in securities that were sold to other investors. These securities failed when the underlying mortgages went into default. It was impossible to trace the majority of the mortgage loans on the over 300 homes sold by DSI that were the subject of the FBI investigation; it would have been harder yet to identify individual victims of the fraud given that the mortgages were securitized and traded. (Emphasis added.)
    To add more outrage to this case, while the government acknowledges the damages from the fraud scheme resulted in $75 million in damages, the amount being paid by DSI in restitution is $3 million to Fannie Mae and Freddie Mac. That is all, along with an $8.5 million fine that the government will pocket. Once again the government is taking all of the money from a settlement with a fraudulent mortgage lender, and giving nothing to the people who were damaged.
    Oh, and one more thing. The “preferred lenders,” Wells Fargo Bank and J.P. Morgan Chase, who were also involved in the scheme, were not charged even though it states they knew about DSI’s “shenanigans to inflate the value of their homes” in the sentencing document:
    The parties agree that the preferred mortgage lenders, Wells Fargo and J.P. Morgan Chase, were on some notice that DSI was engaged in various shenanigans to inflate the value of their homes. (Emphasis added.)

    During the time of the information, DSI worked with two “preferred lenders,” Wells Fargo Bank and J.P. Morgan Chase. Certain employees and managersof those two preferred lenders knew about the incentive programs offered by DSI and the builders, and knew that the incentives were not being disclosed in the loan files. (Emphasis added.)
    Even though Wells Fargo and JP Morgan Chase had the information that the loans were fraudulent, as per what has become standard procedure, the DOJ brought no charges against the banks. There is nothing new about banks selling off defective, fraudulent loans to securitized trusts, and once again the DOJ has found no reason to prosecute too big to fail banks for fraud.
    There is much more to this story which we will not delve into at the moment, including the history of the Seeno family who owns DSI and their connection to other funny business…

  8. BAC Home and Bank Of America !! Keep asking why the original loan account number was changed ??? Still no answers.

  9. Reblogged this on Deadly Clear.

  10. And, this one from FDIC indicating dates:
    https://www.fdic.gov/bank/individual/merger/2011/2011.pdf

  11. Found this link on Merger of Chase Bank and Chase Home Finance, LLC:

    http://www.occ.gov/topics/licensing/interpretations-and-actions/2011/ca996.pdf

  12. What documents would we be looking for that would define a legal merger? Is that a simple ‘purchase’ type contract that defines the terms of the merger? It seems so many of these wholly-owned subsidiaries are formed, then operated like a ‘department’ of the parent their whole lives. The setup seems arranged only for tax purposes, rather than operational organization.

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