LAWYERS WAKE UP! THERE IS GOLD IN THESE HILLS!
The Sundquist decision stands out as the clearest denunciation of Bank of America yet. In this colorfully written opinion Judge Klein in California burst out of a shell of false orthodoxy plaguing the courts and gave us rays of sunshine.
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Wikipedia says that Franz Kafka, a Czech writer at the turn of the 20th century, “fuses elements of realism and the fantastic, typically features isolated protagonists faced by bizarre or surrealistic predicaments and incomprehensible social-bureaucratic powers, and has been interpreted as exploring themes of alienation, existential anxiety, guilt, and absurdity.”
Judge Klein starts his opinion with “Franz Kafka lives. This automatic stay violation case reveals that he works at Bank of America.” What he then describes is virtually identical for all the banks who make claims based upon (or related to) the patently false premise of securitization.
In short, this is another case where bank representatives were given a script in which they lured homeowners into default by misinforming them that the only way they could modify is if they were at least 90 days behind in payments. Any lawyer who has practiced for at least a year defending foreclosures knows this story — over and over again. Despite volumes of evidence corroborating this fact pattern, Judges have persisted in disregarding such evidence as so much bulls–t.
But lately as you have seen on these pages, judges are taking this more seriously. And many judges might find themselves in a bind when they are reversed on appeal, to wit: when the appellate court points out that there was no evidence that contradicted the testimony of the homeowner. Of course the reader is reminded that on appeal a decision can be affirmed anyway if the appellate panel finds that the judgment would have been granted on other grounds anyway — so be careful how you phrase this and use this.
Here you have a fact pattern that is all too common. The homeowners are not rich but they are struggling to get by. They are current on the payments as stated in the note.
[NOTE: The court assumes that the transfers were all the result of actual transactions, which is erroneous].
Then starts the nightmare of bobbing and weaving and making homeowners crazy enough to give up a home in which they made a down payment in 6 figures. They are “current.” They are told that they should stop paying in order to qualify for consideration of a modification. The bank’s plan is simple, to wit: lure the homeowner into default and drag it out long enough so that the bank’s claim for “servicer advances” piles up — along with the “arrearage” accruing from the the date the homeowner stopped paying. If you wait long enough the “recovery” of “servicer advances” (actually paid from the investors’ own money) becomes quite a chunk of change. And the amount required to reinstate slowly falls out of reach of the homeowners who stopped paying the bank and started paying professionals to help them through the modification process.
Judge Klein does not deal with the issue of real party in interest arising from the false claim for “recovery” of “servicer advances.” Instead he focuses on something more important — the persistent absurdity and unreality of the world in which Bank of America acted as though they WERE the law, not subject to it. He is addressing the twilight zone in which the banks and servicers are operating.
But another major issue corroborates what I have been suggesting fro years. Keep a journal and record, as best you can, word for word, the content of your conversation and interaction with the bank or servicer. Judge Klein found that the homeowner’s record of conversations were “non-hearsay statements by an opposing party” and accordingly admitted them under Fed R Evid 802.(d)91). Without that ruling on evidence the case would have turned out much differently. The problem appears to be that with exception of Judge Klein, very few judges know or care about those rules of evidence which make or break the homeowner’s case.
This case also contains under the same rules of evidence that were allowed into evidence the admission by a BOA employee that mortgage modification is “not real.” Some readers will remember that the BOA manager in Massachusetts was heard to say that the goal was foreclosure, not modification. “we are not in the modification business. We are in the foreclosure business.”
Then comes the trespassing, the harassing and frightening — all to inflict pain on the homeowners so they will give up. And most homeowners do exactly that because there are too few lawyers who are willing to fight for them.
READ THE DECISION — TWICE OR MORE IF NECESSARY.