Fla. Supreme Court Takes Jurisdiction Over Attorney Fees Controversy

Under current doctrine, banks can continually file baseless claims against homeowners until they win — mostly because the homeowner does not have infinite resources. In the meanwhile each time the banks lose they are not liable for attorney fees. But if they win they get attorney fees under F.S. §57.105. If the homeowner prevails on the theory that the named Plaintiff is an imposter having nothing to do with the loan, then, according to current doctrine, the basis for recovery of attorney fees (as set forth in the mortgage and note) does not apply.

The basic injustice of this doctrine has attracted the attention of the Florida Supremes. The logic should apply both for the homeowner and for the bank. That is what we mean by blind justice. If someone takes a position in court and ultimately prevails then they are entitled to fees if the contract provides for fees. The appellate courts have erroneously concluded that this can only be applied for the banks, not the borrower.

Let us help you plan your case narrative and strategy: 202-838-6345. Ask for a Consult.
Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.
Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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See Fla. Supreme Court Weighs in on Homeowner’s right to Recover Attorney

The current doctrine is that once you have prevailed on the issue of standing you have also disproved your right to recover attorney fees. The problem is that the decisions have focused on the wrong thing: the contract exists regardless of who is asserting rights for or against the contract. If the finding of the court was that no contract ever existed, then it would make sense that neither party could claim any benefit from a contract that never existed.

But that is not what is happening. The courts have gone off the tracks and hopefully the Florida Supremes will fix the problem. The current doctrine assumes that for purposes of the case the contract does not apply to the party who filed the case seeking relief pursuant to the contract (the note and mortgage). The current process requires a homeowner to defend a baseless action. But having asserted rights under the contract, the banks should die by their own sword. Otherwise the banks can keep coming into court under the same named Plaintiff forcing the homeowner to defend the same action repeatedly — until they run out of money.

Failure to award fees to the homeowners presents a clear strategy to the banks. Since there is no risk of loss, they will keep filing actions in which their named Plaintiff has no standing until they win by default because the homeowner simply can’t afford to litigate forever.

If fees were awarded, as they always were until the courts  invented a doctrine to deny the fees, then the banks would have risk of loss and would therefore be inclined to file only file actions that had merit.

THE CURRENT BIAS: EVEN IF HOMEOWNER WINS, NO FEE RECOVERY

The continuing bias in favor of the banks’ fraudulent scheme of mortgages and foreclosures gives rise now to a nutty theory. The logic seems so obvious to the courts and yet it is erroneous. In a nutshell the theory goes, if a homeowner eventually proves that the parties attempting to foreclose have nothing to do with the loan, then the homeowner is barred from receiving fees under the contract.

The fact that the foreclosing party represented and fought for status as a party with standing and was entirely dependent upon their ability to enforce contract (note and mortgage) means nothing to the courts. They want to set up whatever obstacles they can to valid defenses  showing the homeowner owes nothing to the parties who are foreclosing.

Let us help you plan your narrative and strategy: 202-838-6345. Ask for a Consult.

Register now for Neil Garfield’s Mastering Discovery and Evidence in Foreclosure Defense webinar.

Get a Consult and TEAR (Title & Encumbrances Analysis and & Report) 202-838-6345. The TEAR replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).
https://www.vcita.com/v/lendinglies to schedule CONSULT, leave message or make payments. It’s better than calling!
THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.
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see 4th DCA Reaffirms No Fees to Prevailing Homeowner

Essentially the courts are punishing homeowners for winning the case and letting the real offender go free without any form of sanctions or payment to the homeowner. By disallowing fees to the homeowner they make it less likely for homeowners to raise meritorious defenses including the key defense that the parties seeking foreclosure are scamming the court.

The logic of the court is that once you prove that the foreclosing party has no factual or legal relationship to the loan, you have destroyed your claim to enforce fees via statute, contract or both. This is also in keeping with the finding that fraud, forgery and fabrication once proven, means nothing in terms of clean hands.

The Courts could have shut down the flood of foreclosures that started 12 years ago and continues to this day. All they needed to do is continue their procedure of making absolutely certain that the foreclosing party actually had a right to foreclose. Instead of being worried about fraudulent claims, the courts are worried about meritorious defenses. THAT is the opposite of due process. It is a political decision instead of a legal one.

First the basis of this modern “doctrine” is that proof that the forecloser is a stranger means that there are no remedies to the victim of fraudulent behavior. That is simply due process in reverse. Once someone files something in the courts or county records, they are submitting themselves to the jurisdiction of the court, even if it is based upon fraudulent claims based upon forgeries and fabrications. If this “doctrine” were true and sustainable it  would present an optional basis to avoid penalty for lies told in court. They can do it and if they are caught they pay nothing.

Second, the forecloser has hoisted itself on its own petard. By proclaiming that it is the only party to a contract entitled to enforce it, it must suffer the consequences of failing to prove that — especially if the evidence shows, as in the case cited above in the link, that the failure was not just wrong or negligent, but rather intentional and fraudulent. The courts are rewarding bad behavior.

Third, fees, costs and other sanctions should be available against a party who lies to the court about a transaction and loses the case because they were found to be lying.

The entire concept of denying the existence of a contract when both parties agreed in court that the contract existed, is out of Gulliver’s Travels. Perhaps what is needed is some pleading in affirmative defenses or counterclaim that the action is frivolous and fraudulent, seeking fees for abuse of process or wrong full foreclosure. But that again puts the intolerable burden of litigating the right to title and possession of a homestead on the homeowner.

The courts are interposing an issue that should never come up, to wit: if you own your home and you have obvious defenses against foreclosure that shows that the party attempting to foreclose is lying to the court, you need to factor in the high cost of litigation before you defend — or get out and let the the liar enter the house.

Attorney Fee Award: Heads the Bank Wins, Tails the Homeowner Loses

Appellate courts stepping on a rake: This thread of decisions makes it extremely important for attorneys representing homeowners to establish the earliest possible safe harbor period so they can recover fees when they win.

These decisions are essentially punishing homeowners on the grounds that they won on an issue that revealed the underhanded, fictitious narratives that are cooked up by central repositories of fabricated data and documents in order to obtain a foreclosure judgment to which the banks and servicers are not entitled.

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.
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see Attorney Fees 57-105 DOC030317

The bottom line is that Judge Jennifer Bailey was right and the appellate court was wrong. Another case of the rules being used to twist the court system against itself. There are consequences arising from the Courts making policy (a legislative function). One of them may well be that even the highest court in a state could be subject to obvious reprimand from courts in the Federal system.

Since 2001, foreclosure litigation has been a strange world combining Opposite Day with twisted legal opinions based upon the single premise that the Banks must win and the homeowners must lose. Nowhere is that more obvious than in Florida, where a homeowner can win the case, with Final judgment entered in the Homeowner’s favor, but still lose the case on the issue of recovery of reasonable attorney fees and costs.

Under the logic of the Alexander case and now this third district opinion, the Bank can assert rights under what is an existing contract and, if it wins, recover attorney fees and costs. But the homeowner cannot recover fees if the homeowner wins. Despite the provisions of F.S. §57.105(7) that expressly states that if one party is entitled to recovery of fees in a contract then the provision becomes reciprocal — i.e., if the party using the contract for suit loses the prevailing party gets fees upon winning the case.

As in other decisions the court is hell bent on making it more difficult for homeowners to defend their homes by denying them recovery for their attorney fees. The obvious impact is to increase the risk of challenging the core defect in all foreclosures — standing. The DEBT is simply not owned by any of the parties who have been acting as “servicers”, “collectors” or “lenders” or “investors.”

The logic of the courts is defective and twisted. If US Bank, for example, is defeated in a foreclosure action because it was never a party to any loan contract, written, implied or otherwise, then it nevertheless does not need to pay for attorney fees for the opposition homeowner BECAUSE the homeowner won on standing.

Thus a party like US Bank et al who invokes a presumably valid contract, stands to lose nothing if it loses. The simplicity of the decisions is misleading. The appellate courts are making a finding of fact contrary to that of the trial judge. In this case the trial judge found that the Plaintiff was not a party to the contract and never became one. Hence the court entered judgment for the homeowner and then ruled that the homeowner was entitled to attorney fees and costs and awarded over $40,000 to the defendant as recovery of fees and costs.

But the appellate courts invented a concept that simply does not exist. They are finding that the contract does not exist rather than the trial court’s finding that the Plaintiff never became a party to the contract despite its allegations to the contrary. Either the contract exists or it doesn’t. If it doesn’t exist then nobody gets to enforce it and the the homeowner is now free to quiet title and get the mythological “free house.”

The correct decision under these cases should be that the Plaintiff, having invoked the contract including an award of attorney fees, was admitting that the reciprocity provisions of F.S. §57.105(7) apply and is now bound by the contractual provisions regardless of the outcome of litigation. Having failed to prove their rights under the contract, they are subject to the consequences set forth in the contract that formed the entire basis of their lawsuit in foreclosure.

This issue should be taken up with the Florida Supreme Court. These decisions are essentially punishing homeowners on the grounds that they won on an issue that revealed the underhanded, fictitious narratives that are cooked up by central repositories of fabricated data and documents in order to obtain a foreclosure judgment to which the banks and servicers are not entitled.

But the interesting thing about this reasoning, is that the issue of whether the contract exists or not might lead to a quiet title action for the homeowner.

Having established that the Plaintiff had no right to bring the action, the trial court must then vault such a decision into a rule, per se, that therefore there is no contract. This can only be prevented in the event that the next step in this thread is to suggest that the contract DOES exist but not as to the Homeowner in connection with this Plaintiff. But that will muddy title even more, inasmuch as all the evidence adduced to date was that the loan was somehow under the control of the Plaintiff or Plaintiff’s agents. How does another creditor/predator come along and say “OK, it was really us all along?”

A plain reading of the doctrine of estoppel in a court of equity would clearly allow the award of fees to the homeowner who wins on the issue of standing.

None of this discounts my prime directive that there is no contract at all to enforce becasue the debt was never merged into the note and the mortgage only serves as collateral for the alleged obligations under the note. In the absence of merging the debt (owed to an undisclosed, unidentified third party) into the note, the note represents only a contingent liability — if the note ends up in the hands of a holder in due course who purchased the note in good faith and without knowledge of the borrower’s defenses.

I might add that in the case of the so-called purchase or transfer of loan documents in which the homeowner is already declared in default, the rights of any holder or any possessor of the note are dubious at best, since the note is no longer a negotiable instrument under the UCC.

FDCPA and FCCPA: Temperatures rising

FDCPA and FCCPA (or similar state legislation) claims are getting traction across the country. Bank of America violated the federal Fair Debt Collection Practices Act (“FDCPA”) and the related Florida Consumer Collection Practices Act (“FCCPA”). (Doc. 26). The Goodin case is a fair representation of the experience of hundreds of thousands of homeowners who have tried to reconcile the numbers given to them by Bank of America and others.

In a carefully worded opinion from Federal District Court Judge Corrigan in Jacksonville, the Court laid out the right to damages under the FDCPA and FCCPA. The Court found that BOA acted with gross negligence because they continued their behavior long after being put on notice of a mistake on their part and awarded the 2 homeowners:

  • Statutory damages of $2,000
  • Actual damages for emotional distress of $100,000 ($50,000 per person)
  • Punitive damages of $100,000
  • Attorneys fees and costs

 

See http://www.leagle.com/decision/In%20FDCO%2020150623E16/GOODIN%20v.%20BANK%20OF%20AMERICA,%20N.A.

The story is the same as I have heard from thousands of other homeowners. The “servicer” or “bank” misapplies payments, negligently posts payments to the wrong place and refuses to make any correction despite multiple attempts by the homeowners to get their account straightened out. Then the bank refuses to take any more payments because the homeowners are “late, ” “delinquent”, or in “default”, following which they send a default notice, intent to accelerate and then file suit in foreclosure.

The subtext here is that there is no “default” if the “borrower” tenders payment timely with good funds. The fact that the servicer/bank does not accept them or post them to the right ledger does not create a default on the part of the borrower, who has obviously done nothing wrong. There is no default and there is no delinquency. The wrongful act was clearly committed by the servicer/bank. Hence there is no default by the borrower in any sense by any standard. It might be said that if there is a default, it is a default by Bank of America or whoever the servicer/bank is in another case.

Using the logic and law of yesteryear, we frequently make the mistake of assuming that if there is no posting of a payment, no cashing of a check or no acceptance of the tender of payment, that the borrower is in default but it is refutable or excusable — putting the burden on the borrower to show that he/she/they tendered payment. In fact, it is none of those things. When you parse out the “default” none of the elements are present as to the borrower.

This case stands out as a good discussion of damages for emotional distress — including cases, like this one, where there is no evidence from medical experts nor medical bills resulting from the anguish of trying to sleep for years knowing that the bank or servicer is out to get your house. The feeling of being powerless is a huge factor. If an institution like BOA fails to act fairly and refuses to correct its own “errors,” it is not hard to see how the distress is real.

I of course believe that BOA had no procedures in place to deal with calls, visits, letters and emails from the homeowner because they want the foreclosure in all events — or at least as many as possible. The reason is simple: the foreclosure judgment is the first legally valid instrument in a long chain of misdeeds. It creates the presumption that all the events, documents, letters and claims were valid before the judgment was entered and makes all those misdeeds enforceable.

The Judge also details the requirements for punitive damages — i.e., aggravating circumstances involving gross negligence and intentional acts. The Judge doesn’t quite say that the acts of BOA were intentional. But he describes BOA’s actions as so grossly negligent that it must approach an intentional, malicious act for the sole benefit of the actor.

 

PRACTICE NOTE ON MERGER DOCTRINE AND EXISTENCE OF DEFAULT:

It has always been a basic rule of negotiable instruments law that once a promissory note is given for an underlying obligation (like the mortgage contract), the underlying obligation is merged into the note and is suspended while the note is still outstanding. Discharge on the note would (due to the rule that the two are merged) result in discharge discharge of the underlying obligation. Thus paying the note would also pay the obligation. Because of the merger rule, the underlying obligation is not available as a separate course of action until the note is dishonored.

 

The problem here is that most lawyers and most judges are not very familiar with the UCC even though it constitutes state law in whatever state they are in. They see the UCC as a problem when in fact it is a solution. it answers the hairy details without requiring any interpretation. It just needs to be applied. But just then the banks make their “free house” argument and the judge “interprets a statute that is only vaguely understood.

The banks know that judges are not accustomed to using the UCC and they come in with a presumed default simply because they show the judge that on their own books no payment was posted. And of course they have no record of tender and refusal by the bank. The court then usually erroneously shifts the burden of proof, as to whether tender of the payment was made, onto the homeowner who of course does not  have millions of dollars of computer equipment, IT platforms and access to the computer generated “accounts” on multiple platforms.

This merger rule, with its suspension of the underlying obligation until this honor of the note cut is codified in §3-310 of the UCC:

(b) unless otherwise agreed and except as provided in subsection (a), if a note or an uncertified check is taken for an obligation, the obligation is suspended to the same extent the obligation would be discharged if an amount of money equal to the amount of the instruments were taken, and the following rules apply:

(2) in the case of a note, suspension of the obligation continues until dishonor of the note or until it is paid. Payment of the note results in the discharge of the obligation to the extent of the payment.

thus until the note is dishonored there can be no default on the underlying obligation (the mortgage contract). All foreclosure statutes, whether permitting self-help or requiring the involvement of court, forbid foreclosure unless the underlying debt is in”Default.” That means that the maker of the promissory note must have failed to make the payments required by the note itself, and thus the node has been dishonored. Under UCC §3-502(a)(3) a hello promissory note is dishonored when the maker does not pay it when the footnote first becomes payable.

Banks Use Trial Modifications as a Pathway to Foreclosure — Neil Garfield Show 6 P.M. EDT Thursdays

Banks Use Modifications Against Homeowners

Click in or phone in at The Neil Garfield Show

Or call in at (347) 850-1260, 6pm EDT Thursdays

It is bad enough that they outright lie to homeowners and tell them they MUST be 90 days behind in payments to get a modification. That isn’t true and it is a ruse to get the homeowner to stop paying and get into a default situation. But the reports from across the country show that the banks are using a variety of tricks and scams to dishonor modification agreements. First they say that just because they did the underwriting and approved the trial modification doesn’t mean that they are bound to make the modification permanent. Most courts disagree. If you make a deal with offer, acceptance and consideration, and one side performs (the homeowner made the trial payments) then the other side must perform (the Bank).

What is really happening is that the bank is converting the loan from a loan funded by investors to a loan NOT funded by the bank. They are steering people into “in house” loans. The hubris of these people is incredible. Why are the investors sitting on their hands? Do they STILL not get it?
Regardless of whether the modification is enforced or forced into foreclosure or converted to an in house loan, the investor loses with the stamp of approval from the court. And the borrower is now paying a party that already collected his loan principal several times over while the real lender is getting birdseed. The investors lose no matter how the case is decided. And the Courts are failing to realize that the fate of the money from a Pension Fund is being decided without any opportunity for the investors to have notice, much less be heard.
Why is this important? Because the banks converted one debt from the borrower into many debts — all secured by the same mortgage. It doesn’t work that way in real life — except now, when courts still refuse to educate themselves on the theory and reality of securitization of debt.
http://www.occupy.com/article/when-fighting-your-home-becomes-biggest-fight-your-life
——————————-FROM RECENTSHOWHOW DO YOU KNOW THAT? — Introducing two upcomingCLE Seminars from the Garfield Continuum onVoir Dire of corporate representatives in foreclosure litigation. The first is atwo hour telephone conference devoted exclusively tovoir dire examination and the second is a full day on onlyvoir dire pluscross examination. The show is free. Topreregister for the mini seminar onvoir dire or the full seminar onvoir dire andcross examination (at a discount) call 954-495-9867.

  • Overview of Foreclosure Litigation in Florida and Other States
  • The need for copies of actual case law and even memoranda supporting your line of questioning
  • The Three Rules for Questioning
  • —– (1) Know why you want to inquire
  • —– (2) Listen to the Answer
  • —– (3) Follow up and comment
  • What to ask, and when to ask it
  • The difference between voir dire and cross examination
  • Getting traction with the presiding Judge
  • Developing your goals and strategies
  • Developing a narrative
  • Impeaching the witness before he or she gets started
  • Preparing your own witnesses for voir dire questions

 

IF YOU MISSED IT: Go to blog radio link and click on the Neil Garfield Show — past shows include—-

News abounds as we hear of purchases of loans and bonds. Some of these are repurchases. Some are in litigation, like $1.1 Billion worth in suit brought by Trustees against the broker dealer Merrill Lynch, which was purchased by Bank of America. What do these purchases mean for people in litigation. If the loan was repurchased or all the loan claims were settled, does the trust still exist? Did it ever exist? Was it ever funded? Did it ever own the loans? Why are lawyers unwilling to make representations that the Trust is a holder in due course? Wouldn’t that settle everything? And what is the significance of the $3 trillion in bonds purchased by the Federal Reserve, mostly mortgage backed bonds? This and more tonight with questions and answers:

Adding the list of questions I posted last week (see below), I put these questions ahead of all others:

  1. If the party on the note and mortgage is NOT REALLY the lender, why should they be allowed to have their name on the note or mortgage, why are those documents distributed instead of returned to the borrower because he signed in anticipation of receiving a loan from the party disclosed, as per Federal and state law. Hint: think of your loan as a used car. Where is the contract (offer, acceptance and consideration).
  2. If the party receiving an assignment from the false payee on the note does NOT pay for it, why are we treating the assignment as a cure for documents that were worthless in the first place. Hint: Paper Chase — the more paper you throw at a worthless transaction the more real it appears in the eyes of others.
  3. If the party receiving the assignment from the false payee has no relationship with the real lender, and neither does the false payee on the note, why are we allowing their successors to force people out of their homes on a debt the “bank” never owned? Hint: POLITICS: What is the position of the Federal reserve that has now purchased trillions of dollars of the “mortgage bonds” from banks who never owned the bonds that were issued by REMIC trusts that never received the proceeds of sale of the bonds.
  4. If the lenders (investors) are receiving payments from settlements with the institutions that created this mess, why is the balance owed by the borrower the same after the settlement, when the lender’s balance has been reduced? Hint: Arithmetic. John owes Sally 5 bananas. Hank gives Sally 3 bananas and says this is for John. How many bananas does John owe Sally now?
  5. And for extra credit: are the broker dealers who said they were brokering and underwriting the issuance of mortgage bonds from REMIC trusts guilty of anything when they don’t give the proceeds from the sale of the bonds to the Trusts that issued those bonds? What is the effect on the contractual relationship between the lenders and the borrowers? Hint: VANISHING MONEY replaced by volumes of paper — the same at both ends of the transaction, to wit: the borrower and the investor/lender.

1. What is a holder in due course? When can an HDC enforce a note even when there are problems with the original loan? What does it mean to be a purchaser for value, in good faith, without notice of borrower’s defenses?

2. What is a holder and how is that different from a holder with rights to enforce? What does it mean to be a holder subject to all the maker’s defenses including lack of consideration (i.e. no loan from the Payee).

3. What is a possessor of a note?

4. What is a bailee of a note?

5. If the note cannot be enforced, can the mortgage still be foreclosed? It seems that many people don’t know the answer to this question.

6. The question confronting us is FORECLOSURE (ENFORCEMENT) OF A MORTGAGE. If the status of a holder of a note is in Article III of the UCC, why are we even discussing “holder” when enforcement of mortgages is governed by Article IV of the UCC?

7. Does the question of “holder” or holder in due course or any of that even apply in the original loan transaction? Hint: NO.

8. Homework assignment: Google “Infinite rehypothecation”

For more information call 954-495-9867 or 520-405-1688.

 

About Those Attorney Fees Awards to Bank Attorneys: Double Dipping+?

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When I was litigating 24/7 I used to say that all the best ideas I ever had for the Courtroom came from my clients. I think the reason is fairly simple: they had to live with the result I didn’t. No matter how passionate I was about their cause, nobody cared more about their case than they did. And that’s a good thing because, as any lawyer who has represented himself knows, getting too close removes your objectivity and tactical advantages. You are more likely to think through the consequences of adopting one strategy over another if you have the longer view.

But sometimes you we miss the simple questions as we speed toward our desired victory. It’s when you lose that you start realizing some things that maybe you should have brought up before. One highly educated pro se litigant asked me a simple question relating to a current case and it stopped me dead in my tracks.

The litigant had brought all the usual claims for quiet title, lack of standing and fabricated documents and, as is the tendency still, especially in Arizona, judges tend not to believe that these claims and defense are anything more than a gimmick to defeat an otherwise valid debt. So the homeowner lost and is now on appeal. The homeowner also lost the eviction (FED) action and now that is up on appeal but not before they were actually evicted. There was an issue about supersedeas bond and the timing of when it could be posted.

Supersedeas bond is meant to provide some measure of protection to the the winning side in the event the appeal fails. So for example if the rental value fo the property is $1,000 per month, the court might estimate the length of the appeal and set supersedeas at the rental value so the other side wouldn’t be prejudiced by a frivolous or losing appeal. The banks have been using supersedeas as a weapon against homeowners knowing that they have limited resources and they have sought to raise the bar on supersedeas as high as it can go.

In their effort to increase the supersedeas bond and thus further demoralize the homeowner they have gone one step too far, I think. But I missed the point until the litigant himself asked me about it. His question was essentially this: “if the mortgage and note state that in the event it becomes necessary to sell the property to satisfy the borrower’s obligation, the proceeds shall be first applied to attorneys fees and costs of foreclosure. Why then does supersedeas include attorneys fees and costs (with some judges)?

His question got my brain moving. The property already has been sold, at least according to pretender lender bank doctrine, and the trustee deed has been issued. The bid is whatever is stated on the Trustee deed, and in some cases, the property is even sold a third party. So the if the bid was $100,000 and the fee award was $50,000, isn’t that already covered? Isn’t that attorney fee award improper as applied against the homeowner — especially in a non-deficiency state like Arizona? In most cases, the “lender” can’t pursue the homeowner for a deficiency judgment if they elect non-judicial procedure. Why are attorneys fees an exception to this rule?

The answer appears to be that attorneys fees and court costs are not an exception to the rule regarding the prohibition against the banks against pursuing a non-deficiency judgment, but hey are doing it anyway through these attorney fees awards. And then they are bootstrapping it into a demand for supersedeas bond that includes attorney fees and costs. This is improper.

In a declining market, such as we have, where the rental values are dubious at best and where the marketability of title and property is dead in the water, supersedeas should be nominal — a few hundred dollars. But lawyers are making the mistake of not raising this issue at the hearing on supersedeas and of course pro se litigants are making all kinds of mistakes because they didn’t go through 3 years of law school and decades worth of practice in the courtroom.

The moral of the story is that when opposing counsel comes in asking for a fee award against the homeowner, the homeowner or counsel should object based upon the the prohibition against pursuing deficiency judgments. That legal bill is for the bank to pay and not for the homeowner to pay. Even if the Judge were somehow inclined to enter an order setting the amount of fees, it would still be for the bank to pay and not the homeowner. And frankly even if it was the homeowner’s bill, the amount would ordinarily be covered by whatever the value is of the property, low though it might be.

So these awards are actually double dipping — because the investors are not getting complete reports. The award is first used against the homeowner illegally and then used against the investor pool so that the house goes to the servicing bank, which was the their goal all along. The reason these pretenders are fighting for homes that were not financed by these pretenders and where the obligation was never purchased by these non-lenders is that they know that the investors have abandoned the claim against the homeowners as hopeless and they are instead demanding that the investment bank pay them back 100 cents on the dollar because of the fraudulent sale of mortgage bonds.

The abandonment by the investors has caused a vacuum which has spawned “moral hazard” as they say on Wall Street and “theft” as they say on Main Street. People and entities who had nothing to do with the loan transaction and who might, in certain cases have served as conduits for a small part of the money that flowed from the borrower, have stepped in with immunity from any liability because the investors who have the claim don’t want any part of the claim.

Why? Because the amount the investors advanced was (a) far less than the amount that was loaned which was (b) far less than the value of the loan which was (c) depreciated further by the appraisal fraud at origination of the loan which was (d) even further depreciated by the fall in property values caused by millions of homes being dumped on the market. Add counterclaims by homeowners for predatory and deceptive lending and you have essentially a negative value for going after homeowners — unless of course you have nothing to lose because you invested nothing, like the pretender lenders.

And if anyone questions my assertion that investors have abandoned their rightful claims against homeowners, just ask them.

Forensic analysis, DISCOVERY: BofA Hides Behind Reconstrust Subsidiary

Editor’s Notes: Bank of America is smarter than most. It has created a web of companies whose function is to perform activities that hide the fact that it is Bank of America, and there are other pretender lenders who hide behind this entity who suddenly appears as “trustee” or some other entity claiming the right to enforce the note, foreclose the mortgage, lift the stay or whatever. Recontrust is one of them, and it agrees with its “customers” that it will never make a REAL claim to the obligation, note or mortgage. But it also agrees to make claims and pursue foreclosures as though they were the creditor, reporting back later on what happened.

RECONTRUST APPARENTLY HAS 12 EMPLOYEES. Yet it handles virtually the whole country for Countrywide Loans, BofA and others. From what I can see it is a sham corporation with sham functions much the same as MERS and other players invented to make this process more complicated. Taking the cue from one of our readers, I did some additional research and found no less than four addresses in four states for this company, obviously designed to give you the run-around. So if you contact one office you are told to contact another. And if you contest their right to issue a notice of default, notice of sale or file a foreclosure lawsuit or defend your own lawsuit to stop them they have plenty of newly fabricated paperwork to justify their position, because that is apparently all they do.

If you want to test this, just call them and ask about a property that is not in foreclosure. They have nothing. So the only reason we see them is to provide cover for the pretender lenders and give them plausible deniability if they come up against a judge or has their number and now wants to award damages, attorney fees, or fines.

Lien Release Services: Consistent. Accurate. Timely.

Lien Release Services

Phone:1-866-207-0573

Address:

1330 West Southern Avenue
Tempe, AZ 85282-4545
Mail Stop: TPSA-88

Default and Special Release Services

Phone:1-800-281-8219

Address:

2380 Performance Drive,
Richardson, TX 75082
Mail Stop: RGV-C4-450

Real Estate Owned (REO)
If you have questions or inquiries regarding REO purchases, unlisted purchases, investor-owned information, city violations, REO broker applications, REO vendor management, or broker complaints please call the REO Customer Escalation Team at: (866) 781-0029.

The following states have sold properties.
Click on the state to view information.

State Number of Properties
Alaska 18
Arizona 1783
Arkansas 66
California 4430
Idaho 214
Mississippi 50
Montana 47
Nebraska 26
Nevada 586
Oregon 114
Tennessee 107
Texas 99
Utah 185
Virginia 156
Washington 135
The following states have properties
listed for Trustee Sale.
State Number of Properties
Alaska 200
Arizona 18956
Arkansas 697
California 29862
Idaho 1528
Mississippi 190
Montana 493
Nebraska 129
Nevada 1560
Oregon 4584
Tennessee 480
Texas 1158
Utah 983
Virginia 515
Washington 1245

Our lien release departments, located in Simi Valley, CA, and Tempe, AZ, record documents in more than 3,600 jurisdictions.

Expertise when you need it most.

Let our experienced staff handle your lien release from start to finish. We’ll help you achieve timely releases and reinstatements and improve productivity and efficiency while reducing expenses and boosting your bottom line. We have the capabilities and experience to process reconveyances and lien releases nationwide, regardless of location or volume.

Timely, accurate results.

Lien releases must be filed and recorded within a very short time following the satisfaction of a lien. We don’t just promise timely turnarounds—we deliver on that promise. When you outsource your lien release program to ReconTrust, you get a partner that’s committed to reducing your liability and administrative costs while providing accurate, compliant results.
We control financial risk by adhering to strict compliance standards at state and local levels. That means your files are processed on time within compliance statutes in all jurisdictions. Using state-of-the-art technology, we also provide accurate, efficient document preparation and management to help you meet required deadlines.

Reduced costs. Improved productivity.

Our team of experts handles releases nationwide, resolves exception files and clears backlogs. We offer an array of customized solutions to resolve your lien release concerns.
We also handle partial release requests. We review, analyze and process each request based on your lender guidelines, and ensure that the outcome will have a positive impact on your business.
The benefits of lien release outsourcing are many. You save time and money, because we help mitigate rising staffing costs and fluctuating workloads. When you need a partner in lien release services, turn to ReconTrust.

Looking for a JOB?:

Job Description:

Review and audit Trustee’s Sale Guarantees (TSG’s) for accuracy; correct deficiencies; input data from the TSG into ReconTrust operating system (FPS); Trustee’s Sale Processors may assist Trustee’s Sale Officers with file audits;This position requires fairly continuous data entry for several hours each day. MUST HAVE Mortgage &/or Title Experience – NO EXCEPTIONS Keywords: Company Confidential, Dallas, Data Entry – MUST HAVE TITLE EXPERIENCE, Sales / Marketing / Pr, Dallas, Texas

ReconTrust’s Employees

Join to view all (12)

Jim Taylor

President

Sam Shmikler

VP, Risk Management

Kailash Bhuckory

Sr. Bus. Analyst,…

Lorena Castillo-Ruiz

Avp

Denise Sletten

Assistant Team Le…

Eva Tapia

Jeffrey Aiken

Rebecca Baney

Automatic review of recontrust.com
recontrust.com has been automatically reviewed at 2010-03-29 by robtex

Check Result
NS on different IP networks YES
NS delegation consistent with zone YES
Listed in DMOZ NO
Listed in Alexa top 100000 NO
Good WOT rating YES

Total score 30/50 normalized to 3/5 stars
This is experimental beta, more checks are added shortly

SEO Analysis

Organic keywords

Keyword Position
recontrust 14
recon trust 14
custody documents 19

Organic competitors

Domain Common Keywords
recontrustco.com 6
bankofamericastore.com 2

Rising foreclosure activities can be a distraction for any servicer. If you’re not positive your business is prepared to handle the rising numbers, let’s talk. ReconTrust’s default management services could take the weight off your operations, so you can focus on your core business.
We provide foreclosure services in 16 states.

If you are having difficulty making your mortgage payments, there may be options available to help you avoid foreclosure. Please click the link below for more information.

Contact Us |
About Us |
FAQ |
Privacy & Security

ReconTrust Company, N.A. is a wholly-owned subsidiary of Bank of America, N.A.
Bank of America, N.A. Member FDIC. Equal Housing Lenders  Some products may not be available in all states.

© 2010 Bank of America Corporation. All rights reserved.

Unaffiliated companies or web sites may report on ReconTrust’s business activities. However, for the most reliable and current information regarding ReconTrust’s business, please contact us directly at (800) 281-8219 or by mail at 1800 Tapo Canyon Road, Simi Valley, CA 93063.

Home > Contact Us
Corporate Headquarters:
Default and Special Release Services

Phone:1-800-281-8219
Address:
2380 Performance Drive,
Richardson, TX 75082
Mail Stop: RGV-C4-450

Real Estate Owned (REO)
If you have questions or inquiries regarding REO purchases, unlisted purchases, investor-owned information, city violations, REO broker applications, REO vendor management, or broker complaints please call the REO Customer Escalation Team at: (866) 781-0029.

Headquartered in Thousand Oaks, CA, ReconTrust is a member of the Bank of America family of companies. That means when you turn to ReconTrust, you leverage the resources, technology, scale, and strength of one of the largest financial services companies in the world.
We understand the needs of the mortgage industry, and we are committed to delivering top-flight results. What is more, we share our parent company’s dedication to quality and continuous improvement. To that end, we are committed to offering our clients the highest levels of service, responsiveness, and accuracy.
Our goal is to boost your bottom line by reducing costs, increasing the efficiency of your business and improving the effectiveness of your mortgage operations. In short, we make your best execution happen.
ReconTrust is the name you can trust, and a partner you can rely on. Call us today to find out how to put our expertise to work for you.

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