HAWAII S. CT. REVERSES US BANK JUDGMENT

The courts continue to start with the wrong premise. It is no wonder that they keep coming up with either the wrong result or the right result only after confusing all the issues.

Get a consult! 202-838-6345
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments.
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
—————-

see US Bank v Mattos – No Standing 06-06-17

The first thing that jumps out at me from this decision is the failure to address the caption (“the style”) of the case, which asserts:

U.S. Bank N.A. in its Capacity as
Trustee for the registered holders of MASTR Asset Backed

Securities Trust 2005-NC1, Mortgage Pass-Through Certificates, Series 2005-NC1” (“U.S. Bank”)

The first problem is that U.S. Bank is asserting that it is the trustee for the “registered holders” of certificates. If there are truly registered holders then why care they not identified? Why are we met with claims of privacy and privilege when we ask who they are, in order to confirm the “fact” that U.S. Bank is authorized to represent them?

The second problem is the use of the word “Trustee.” Simple logic dictates that if someone is claiming to be a “Trustee” there MUST be a Trust. If there is a trust then it is much more probable that U.S. Bank’s assertion is false and that it is claiming a trustee relationship with a Trust.

If so, the Trustee does not have any direct agency or authorized relationship with the certificate holders. So why does US Bank assert they appear for the certificate holders instead of the Trust? Most likely because the Trust either doesn’t exist or has never had any business operations in which assets (i.e., loans) were purchased by the Trust. Thus any “assignments” to the putative trust would merely be self serving declarations designed to mislead the court into thinking that the trust does own loans when it doesn’t. If I assign a debt to Donald Duck the debt does not move (unless it is Donald Duck, Inc. a Delaware corporation).

And the third problem is whether “MASTR Asset Backed Securities Trust 2005-NC-1” exists or if the reference is to “Securities” owned by the Trust rather than the loans, which obviously would be owned elsewhere and managed elsewhere. It turns out that there is a prospectus on the Sec.gov website but that is not subject to judicial notice because while it is on a Government website the document is not a Government document.  This is a common trick of the securitization players. They can file whatever they want on the SEC website but none of it is subject to review, approval or even stamps like you would find in the recording office of any county.

And the 4th problem I have is that the courts continue to overlook the obvious. Somebody is the Plaintiff or a group of Plaintiffs. Those actual plaintiffs or parties in interest must not only be present to even have a lawsuit in court, but they must also have records.

Even if the proper foundation exists and witness competency exists, Ocwen’s records are not the records of the alleged trust. Ocwen’s records are not the records of the investors or holders of certificates. Ocwen’s records are not the records of anyone except Ocwen which means that they can only show that THEY have no record of payment from the borrower. But did they make payments from proceeds of payments made by the borrower? If so, to whom? Is Ocwen the real party in interest seeking money that is not secured by a mortgage?

What is the difference? See what the court does with admissibility of records on page 13 of the opinion. The intersection of the error of using US Bank’s name instead of the Trust name combined with confusion of over when one company’s records become the records of another, makes this case far more complex than necessary. In the end the court decided in favor of the borrower — but not without bending itself into a pretzel.

Ultimately the Court decided in this case that the declaration of Richard Work of Ocwen Loan Servicing did not contain the required representations of a qualified witness, to wit: a witness who takes an oath, personally perceived something that happened, remembers it, and can communicate it.

Pursuant to HRCP Rule 56(e) (2000)5 and Rules of the Circuit Courts of the

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

A declaration in support of a summary judgment motion must be based on personal knowledge, contain facts that would be admissible in evidence, and show that the declarant is competent to testify as to the matters contained within the declaration

 

In addition, U.S. Bank failed to establish that it was a holder entitled to enforce the note at the time the foreclosure complaint was filed. See Bank of America, N.A. v. Reyes-Toledo, 139 Hawaii 361, 370-71, 390 P.3d

Addressing the factual allegations underlying the “robo-signing"gning” claim,
however, we conclude there is a genuine issue of material fact
as to whether Ocwen had the authority to sign the second
assignment of mortgage to U.S. Bank.

The case really turned on the following  in my opinion:

On July 21, 2011, U.S. Bank filed a foreclosure complaint. U.S. Bank alleged it was the owner of the mortgage by virtue of an Assignment of Mortgage dated January 3, 2007 (“first assignment”) and an Assignment of Mortgage dated September 10, 2010 (“second assignment”), both of which were recorded in the Land Court (the mortgage, first assignment, and second assignment are sometimes collectively referred to as “the mortgage documents”). Attached to the complaint were copies of the note with an allonge4 and the mortgage documents. The allonge was apparently executed by Ocwen as New Century’s attorney-in-fact pursuant to a Limited Power of Attorney. The allonge was dated June 22, 2010, although it stated it was effective January 31, 2005.

First I don’t care for the way the Hawaii Supreme Court simply conflates the Plaintiff into “US Bank” who is obviously not the Plaintiff. It is the trust, or the unidentified “holders of certificates” if anyone, that is in court not US Bank. Using the name of US Bank reveals a subtle bias that this case is about Bank vs Homeowner. it isn’t. It is about unidentified private lenders vs homeowner. US Bank has nothing to do with the loan, lending practices, or payments or even distributions. US Bank has no purpose, no duties, no obligations and is prohibited from even asking questions about the status of any loan or the portfolio in general.

Second note the now common place practice of the same party getting multiple assignments because, truth be told, they don’t know the identity of the creditor or any party authorized to assign the note, given that there was no sale of the note a conclusion easily reached because there was no purchase — i.e., no transaction in which the note was negotiated in the real world.

As usual Ocwen signs the endorsement on an allonge as “attorney in fact” for New Century in 2010, 2 years after New Century ceased to exist. The allonge is backdated in the sense that it asserts to be effective in 2005 when New Century existed. Of course the word “allonge” has virtually lost all meaning over the past 15 years. It is now routinely used inapposite to the requirements of the UCC;  an allonge has a very specific statutory definition ignored by most courts, to wit: a piece of paper attached to the original note where there is not enough room to place an endorsement or an additional endorsement.

This practice of coming up with the term “attorney in fact” without demonstrating that such a relationship exists or even existed in the past is just one of the many ways that wrongful foreclosures are successfully completed.

 


4 Responses

  1. iwantmynpv, I truthfully testified in court, under penalty of perjury that what they purport to be “an original” is not an original bearing my wet-ink signature. They still have not gotten around that statement under oath in court nine years ago – BECAUSE IT IS THE TRUTH, and I refuse to let their innuendo and claims (some of which Neil has been posting about) stand and oppose EVERYTHING they put into the case

  2. Roger wait, til the Court hits you with the possession of the note at the time the action is commenced is sufficient to prove standing under the UCC framework.

  3. I’ll post my motion to dismiss on my website….roger,.rinaldi at wordpress

  4. I have been watching your blog for years now Neil, and I must say, lately you’ve been nailing even better in ways that I would think even none attorney’s would easily understand. The post about hiring X as an attorney, and this blog about is there really any “attorney in fact” and is there a real party before the court, and the deliberate deception about “the bank” vs the homeowner (ie deadbeat perception). Thank you Neil!!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: