Eric Mains: #MeToo- Is Social Justice a Viable Alternative to a Flawed and Compromised Judicial System?

La Revolucion

# MeToo and #MineToo revolución!

By Eric Mains, J.D, Former Federal Bank Regulator

In the last few months we have seen a literal wave of the wealthy and influential falling from grace, losing their positions of power and ducking for cover as their conduct becomes scrutinized in media and social media. They have become keenly aware if they have something to hide in their past or present that maybe, just maybe, the specter of justice, fate, retribution… call it what you will, but a reckoning of some sort may finally be coming for them.

The key difference from what we have experienced in the recent past is this is not just a few token individuals who are intentionally being sacrificed by other peers just to placate the masses, to give us a sense that there is justice out there, while a majority of the remaining transgressors remain free to go about business as usual. Until recently perpetrators of sexual harassment could expect their violations to either go unreported, or if reported by a victim to a typically “helpful” HR representative at a major corporation, would likely result in that persons termination shortly afterwards or a hushed payout and dismissal from employment. So, what’s changed? Why this sudden firestorm in the specific areas of sexual harassment & civil rights?

Well for one, the rise of social media giving voice to those who were previously either too intimidated or too ashamed to go through the regular channels of our justice system or report incidents to mainstream media. The lessening of any stigma attached with coming forward over allegations of sexual misconduct or workplace harassment to be sure; but perhaps more overlooked has been the slowly building tension from all corners of America with a justice system that over the past few decades has become ever more inaccessible and ever more compromised for certain victims.

The courts in America have slowly devolved (or evolved, depending on your perspective) into a long, drawn-out, pay-for-play system which favors those with the most money and connections. They can hire consultants to figure out how to pick and influence juries, and to try and maneuver into the most favorable venues with the most sympathetic judges. Whether the offense is sexual misconduct, civil rights violations, foreclosure fraud, etc., in many cases if the transgressors have enough resources, they are likely to see a deminimus sentence and little punishment handed out. This disparity in a lack of justice for victims, as compared with other areas of the law, has long existed due to the perceptions surrounding the victims by those in the public and in the system as well.

The above may sound cynical to some, or simply a self-evident statement of the way things are to others.  Those in the former category, who are true believers in our current justice system, may think that movements like #MeToo are just mob justice, devoid of the kind of impartial and logical dissemination of fact based justice they believe our current system provides.  To them, it represents chaos, it threatens the foundational platitude that, “We are a nation of laws”, with a system that meets out justice in a generally fair and impartial manner while ensuring the innocent aren’t wrongly accused or convicted.  That would be a valid sentiment-IF backed factually by a system that did function as such a majority of the time. Most would simply point out to the supporters of our current system that unless they have had blinders on for the past 200 years, they would notice our system has done a pretty haphazard job at providing for such an idealized form of justice in practice.

Don’t get me wrong, having a law degree and having worked as a government regulator I want to be able to have more faith in our justice system and the rule of law, faith that we do have mostly impartial and fair judges, and a court system accessible and open for equal justice to all. I still remember from my law school days something that particularly offended me at the time, when one of my professors stated matter-of-factly to our property law class the futility of assuming case law or precedent was necessarily going to ensure victory in the court room, “Unfortunately, most of the time the law is what the judge says it is, heh, heh, haauurrgh”. In hindsight, Professor Rooney was right, and the reality of our justice system keeps smacking I & my former classmates in the face daily just to drive home that point. Looking at a crosscut of some recent data and analysis of our nations various court systems shows the general problems petitioners/consumers/victims run into once inside it.

Consider access to the judicial system: In a Propublica study of bankruptcy filings, it found for those residing in majority black zip codes who file for bankruptcy, the odds of having their cases dismissed (and failing to attain lasting relief) were more than twice as high as those of debtors living in mostly white zip codes. Why? In general, it was driven by money. Impoverished filers could not afford to file for the costlier Chapter 7 cases as opposed to Chapter 13’s, resulting in less of their unaffordable debt loads being relieved. They, ironically, could not afford to get lasting relief from the bankruptcy system because of immediate financial distress. See https://projects.propublica.org/graphics/bankruptcy-data-analysis . A facial review of our justice system shows one in which only those with income below stated poverty lines can access free legal help in general, and that help is generally outgunned and outmanned. Got $200-$350 to file your court case and pay for your attorney fees/retainer in a civil matter otherwise? Not likely, and a pretty good chunk of those between the $20K-50K range really can’t afford the cost of entry in civil litigation, and are quickly priced out of the game when litigating against corporations. Why not take advantage of some impartial arbitration if you can’t sue?….don’t make me laugh.

How about impartiality in judicial decisionmaking? In a recent paper, Judging the Judiciary by the Numbers: Empirical Research on Judges, by Jeffrey Rachlinski (Cornell) & Andrew Wistrich (CA Central Dist. Ct.), the authors found that just like most humans, judges succumb to various “mental shortcuts” that can lead them to mistakes. The paper’s abstract reads “Do judges make decisions that are truly impartial? A wide range of experimental and field studies reveal that several extra-legal factors influence judicial decision making. Demographic characteristics of judges and litigants affect judges’ decisions.

Judges also rely heavily on intuitive reasoning in deciding cases, making them vulnerable to the use of mental shortcuts that can lead to mistakes. Furthermore, judges sometimes rely on facts outside the record and rule more favorably towards litigants who are more sympathetic or with whom they share demographic characteristics. On the whole, judges are excellent decision makers, and sometimes resist common errors of judgment that influence ordinary adults. The weight of the evidence, however, suggests that judges are vulnerable to systematic deviations from the ideal of judicial impartiality.” See Cornell Legal Studies Research Paper No. 17-32, July 2017 at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2979342

Racial and gender discrimination in decisionmaking? In Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking, by Laura Beth Nielsen & Jill Weinberg of Northwestern University, a 2012 paper at http://www.americanbarfoundation.org/uploads/cms/documents/weinberg_nielsen_-_examining_empathy.pdf , the researchers reported that white federal judges are about four times more likely to dismiss race discrimination cases outright, and are half as likely as black federal judges to rule in favor of people alleging racial harassment in the workplace.

The authors argue this is because African American judges have likely experienced discrimination themselves, and therefore they can recognize more complex and subtle forms of racial harassment. How about gender bias in sexual assault cases? “A Baltimore detective said 90% of sexual-assault cases are ‘bulls—,’ but that’s just the start of the department’s problems” from  http://www.businessinsider.com/justice-department-slams-baltimore-police-department-gender-bias-2016-8  …and here https://www.justice.gov/opa/pr/justice-department-finds-substantial-evidence-gender-bias-missoula-county-attorney-s-office .

A DOJ investigation in Missoula in 2014 noted the following “Despite their prevalence in the community, sexual assaults of adult women are given low priority in the County Attorney’s Office; The County Attorney does not provide Deputy County Attorneys with the basic knowledge and training about sexual assault necessary to effectively and impartially investigate and prosecute these cases; The County Attorney’s Office generally does not develop evidence in support of sexual assault prosecutions, either on its own or in cooperation with other law enforcement agencies; Adult women victims, particularly victims of non-stranger sexual assault and rape, are often treated with disrespect, not informed of the status of their case and revictimized by the process;  and The County Attorney’s Office routinely fails to engage in the most basic communication about its cases of sexual assault with law enforcement and advocacy partners.” This is a 2014 report of just one city…ever wonder why women from the 1970’s, 80’s & 90’s often never bothered/dared reporting any assaults until now? Enough said.

Racial discrimination in sentencing? In a first of its kind report from 2014-2015 found here http://projects.heraldtribune.com/bias/sentencing/ The Herald-Tribune in Florida spent a year reviewing tens of millions of records in two state databases. Among the stated findings: “Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota. • There’s little oversight of judges in FL. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies. Across FL, when a white and black defendant score the same points for the same offense, judges give the black defendant a longer prison stay in 60% of felony cases. For the most serious first-degree crimes, judges sentence blacks to 68% more time than whites with identical points. For burglary, it’s 45% more. For battery, it’s 30%.”

Consistency in decision making and opinions based on case precedent?  In a Nevada Law Journal paper entitled Stare Decisis In The Inferior Courts Of The United States, by Joseph W. Mead, his abstract notes “While circuit courts are bound to follow circuit precedent under “law of the circuit” the practice among federal district courts is more varied and uncertain, routinely involving little or no deference to their own precedent”  While I simply don’t have room for his full analysis here, I will note he concludes his paper in part as follows “But we are now left with a puzzle. If district courts indeed possess the power to either adopt the law of the district or require some other level of deference to precedent, and there are good reasons to do so, why have so few followed this path? I think the answer is not that district courts are choosing not to, but that they have not yet given the matter consideration.”

Foreclosure Bias? That’s an entire book, just ask David Dayen who wrote Chain of Title, or Abigail Field who accurately noted back in 2011 http://fortune.com/2011/04/18/fighting-a-foreclosure-suit-hope-for-the-right-judge/ “Not all judges are confronting the issues in the same way. Many are adopting procedures to stop any fraudulent behavior by the banks and are investigating questionable documents submitted in their cases. Other judges are turning a blind eye, at best.”

While I will save that aspect for a near future article, I will simply note that some judges going beyond turning a blind eye; they are straying into obstruction of justice, using a “selectively creative” doctoring of fact patterns from homeowner complaints to suit their narratives when issuing rulings, or just outright failing to address motions to correct error or address black letter law when challenged by attorneys. Par for the course, especially in the federal court system, which took a shamefully compromised former AG Eric Holder’s call to consider his TBTF/sympathy for the devil ideology in favor of Wall Street banks, and the fed courts ran like Usain Bolt with it (All while Holder’s temporarily vacant office was being kept warm at Covington & Burling, and Fannie Mae & Freddie Mac were being systemically looted by the Obama administration). A recent article discusses how the black community and consumers suffered in the name of this flawed ideology  http://peoplespolicyproject.org/2017/12/07/destruction-of-black-wealth-during-the-obama-presidency/ by Ryan Cooper and Matt Bruenig)

I know what many are thinking at this point: “So What? What are you telling us we don’t already know? The justice system is not perfect, it never will be, but it’s functional, and it’s the best we have to work with!” It would be the last part of that sentence that I would wholeheartedly disagree with, and why a platform like #MeToo is now becoming an important, and I think very valid, social justice alternative. Our system is not the best it can be in part because we have come to accept the fallacy that judges, politicians, prosecutors, police, CEO’s, talk news hosts, etc., those who help to shape, influence, or enforce our justice system in different ways, should be held to a different level of accountability, job performance, and social review than the rest of society.

You screw up on your job, make a bad decision that costs the company, hurts clients/constituents, and choose to allow an illegal or immoral activity to take place?-FIRED! Those in the aforementioned categories? Insider trading based on stock tips you get in office, OK! Screw over constituents/rear end a petitioner because his mother dresses him funny? That’s valid! Harass your office assistant or underling? You gave them a job, and they knew the game, grin and bear it! I could go on, but need not. Not only do those with access and who benefit from the system not want change, but those who work within it often don’t recognize the need for change (See Mead & FL Herald Tribune report, supra). Those within it don’t tend to question the biases that have been ingrained in them when they do make decisions (See Rachlinski, Nielsen, etc., supra). They are subject to undue influence by those with access and money who know how to “work” the justice system.

I routinely quote, and will continue to quote Frederick Douglass, because 150 years later the reality he highlighted has not changed one iota, “Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress.” Church Frederick! If we must accept that our system is biased, broken, and not soon to change, how the hell can we expect to wrangle justice out of it when all avenues for influencing seem out of our control? That’s where Douglass recognized the simplicity of the truth, and so does #MeToo-It’s demand! It’s fear of a collective and sizeable retribution for ignoring social justice & common morality. It’s creating consequences outside of a non-functional system that ultimately can lead to change in that system. Social media has given a voice to those who have not had a simple, affordable, accessible platform to demand justice denied them. Technology has now made that possible, and another old adage has proven itself to be as true as ever-“Cockroaches scurry under the light”

Can the wrong perpetrators of alleged crimes be identified or wrongly harassed by a # MeToo movement? Yes, but that risk is also true in the current system. Laws are in place to protect or compensate the innocent or wrongly accused, as well as punish those who knowingly make false statements. If the law and our justice system is a search for truth and justice, then maybe # MeToo will help expedite the administration of this in a system where it has been delayed and denied those without money and a voice. Maybe it’s time for a few more platforms like it from civil rights violations to fraudulent foreclosure….Maybe it’s time to remind those in our system who they are there to work for, and demand they do a better job of it… to demand a change from them and our system instead of quietly submitting…. Viva la # MeToo revolución!

Editor’s note:  Perhaps the wronged homeowner’s call to arms simply starts with a simple hashtag called #MineToo.  If you have been victimized by a loan servicer or foreclosed on fraudulently tweet #MineToo!!!

 

 

 

The West Coast Foreclosure Show with Charles Marshall: The Power of FOIA requests to uncover Foreclosure Data with Eric Mains

Thursdays LIVE! Click in to the The Neil Garfield Show

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

Tonight Southern California attorney Charles Marshall will host the new West Coast Radio Show with Attorney Charles Marshall with guest Eric Mains, former FDIC Team Leader.

The West Coast Radio Show will run the first and third Thursday of each month, while Neil Garfield will continue to host the second and fourth Thursday.  This change will allow us to bring more relevant foreclosure news from both Coasts, and in-between.

Neil Garfield has been working diligently on his technological platform that he hopes will empower both attorneys and pro se litigants facing foreclosure to access automated court documents.  He will also publish his latest foreclosure defense book in the Fall.

This episode features Eric Mains, a former FDIC Team Leader who resigned when he discovered the federal government was unwilling to go after banks that were participating in illegal conduct.  Mains studied to be a lawyer, but ended up as a banker with large regional firms like PNC and National City. He was a vice president of special assets, dealing with commercial loans for multifamily housing units.  If anyone knows how this game is played it is Eric Mains.

For more information about Eric Mains and his foreclosure battle see Vice article here.

Eric Mains currently has a writ of cert that has been submitted to SCOTUS appealing a recent decision in his 7th circuit court of appeals case where the federal court ruled that it lacked jurisdiction to hear his case under the Rooker Feldman doctrine.  Eric is using the FOIA laws to obtain data in his own case. He was recently able to stop a sheriff’s sale on his own home just 5 hours after he issued a complaint to the Indiana State Attorney General’s office supported by an FOAI request submitted just weeks before.

The Power of FOIAs to uncover Foreclosure Data

By Eric Mains, former FDIC Team Leader

Read about Eric Mains here.

LPS Consent Judgement

In the fight for discovery of information related to wrongful foreclosure actions, many attorneys and consumers find that they run into a gamut of obstacles preventing them from garnering basic facts about what happened with their loan transactions. This ranges from the cost of trying to conduct discovery, willful non-disclosure by opposing parties, judges who either hinder needed discovery or bounce cases on motions to dismiss before discovery can be obtained, and of course, the often-heard objection from opposing counsel that items requested in discovery are somehow “privileged” or contain non-disclosable data.

Many cases are withdrawn or settled based solely on the impending threat of discovery actually being allowed by the few judges who side with homeowners to pursue the disclosure of relevant information in their cases.

While discovery in individual cases can be complex, burdensome, and costly, one simple and easy resource that can lead to potentially large benefits on a mass scale outside of traditional discovery is the use of Freedom of Information Act (FOIA) requests to seek data held by government institutions.

Many consumers and their attorneys may scoff and assume FOIA requests are not relevant to their individual cases, so why bother? There are a few reasons for bothering. First, depending on the players involved in your individual case, there may be data that is held by governmental agencies that can be obtained by FOIA requests more cheaply and easily than can be obtained otherwise, and who knows what you may find? It may be relevant to you, it may not, BUT don’t assume anything!

Second, the State agencies such as the Attorney General’s offices have already done the legwork of squeezing the servicers and obtaining potentially useful and relevant information for prosecuting offenders.  Why not use it if it’s there? There could be names, dates, and other data of use, and who knows where that information may lead or if it may become of use later.

Lastly, the information you uncover may not just save you, it may save someone else…and even if it doesn’t help you specifically, you may save hundreds of other people’s homes with the data you uncover. What if someone else a few months down the road doing a similar FOIA request/research uncovers data that saves you? This goes to a “crowd funding” concept of data mining…but more on that in a bit.

While it is true that the federal government has been inclined to do everything in its power to try and block documentation related to large bank misconduct and settlements it has reached with national banks, not all useful and relevant information is held solely by federal agencies or regulators.

In the case of mortgage loan servicers, such as Ocwen, LPS/Black Knight, Green Tree, Caliber, etc., State AG’s were also very active in litigation that reached various settlements. Unlike federal entities, State entities who have data relevant to wrongful actions committed against consumers may not be as tight lipped, or as able and willing to avoid the release of information under their various FOIA/Open Records statutes. A good list of the various State FOIA laws can be found at this website: http://www.nfoic.org/state-freedom-of-information-laws .

The good news is that with a little detective work, if relevant information is suspected to be held by any of your state governmental agencies, a simple fax/letter you can send for a few dollars requesting said information is all that it takes to get the ball rolling. Most turn around periods for a response on such requests is around 30 days.

So, what if they refuse to release the records you request citing various privileges? What if they say they only can release a few of the records?  Without going into long detail, just the response from the agency in and of itself may confirm that they do indeed hold suspected information of use to yourself (or other homeowners) whether they are willing to release the records or not. Even a partial release of records from the governmental agency involved may leave a bread crumb trail leading to other records that may become useful. If an agency does unlawfully or unreasonably withhold records, it may turn out that going to court to force release of the relevant records receives a much more consumer friendly response under FOIA laws as well.

Another potentially beneficial side effect- the results of the FOIA may also get the attention of local news agencies/other consumer advocacy groups if brought to their attiention. Nothing garners attention like smoke, and other interested parties may be inclined to file FOIA request of their own when they find out that there appears to be something…. some records, some data, that appears to be inherently newsworthy and publicly disclosable…but that it is being unreasonably withheld for some strange reason…..hmmmmm. If it’s one thing banks and uncooperative political entities are afraid of, it’s the nations true highest court–that of public opinion and its instantly damaging spotlight.

One last point to remember is that in an age of crowd sourcing, crowd funding, and social media driven group campaigns, something as cheap and powerful as a mass group FOIA campaign to release and share information should be central in helping to fight against wrongful foreclosures. The banks and servicers are unendingly willing to go into court and lie and produce false documentation, while the courts turn a blind eye most times…. but keeping up a lie and producing false documents leaves a trail, and it’s a hundred times harder to keep up a lie and cover for it than to simply be armed with facts and the truth.

Things start to slip, documents come out, and the next thing you know you have a smoking gun and evidence of mass fraud that can’t be ignored or denied. The simple truth of the matter is we don’t know where some of the breadcrumbs discovered in FOIA requests might lead, or how they might help us all. There are plenty of angry consumers willing to yell at TV sets, send out angry Tweets or join blog communities, but not many that are willing to invest time in actually doing something that has potential mass benefit and a real potential impact. FOIA requests are one way to do that cheaply and effectively, and it FORCES the governmental agency involved to respond to YOUR demand, usually for under $5 on your end. Where else can you get that kind of bang for your buck in an age of unaccountable government, media, and courts?

When Crime Pays: Bankers Behind Financial Crisis were Promoted, not Jailed

 

https://www.vice.com/en_us/article/the-bankers-behind-the-financial-crisis-actually-got-promoted?curator=MediaREDEF

The Bankers Behind the Financial Crisis Actually Got Promoted
David Dayen

Millions lost their homes and jobs, and not only did the bankers not go to jail, most of them got new and better gigs, according to a new study.

By now it’s well known that no senior bank executives went to jail for the fraudulent activities that spurred the financial crisis. But a new study shows many of the senior bankers most closely tied to pre-crisis fraud didn’t suffer one bit in the aftermath. They mostly kept their jobs, enjoying the same kinds of opportunities and promotions as their colleagues.

Worst of all, the most plausible explanation the researchers came up with for why senior management didn’t fire the people who blew up the economy is that they didn’t want to admit their own failure as bosses. And if nobody on Wall Street is willing to see the problem, and the Trump administration is stocked with bankers and corporate cheerleaders, you can bet fraud will continue to shift into other products, harming consumers and investors while executives look the other way.

The study comes from John Griffin and Samuel Kruger of the University of Texas-Austin, and Gonzalo Maturana of Emory University. They tracked 715 individuals involved in issuing residential mortgage-backed securities (RMBS) from the key housing bubble years of 2004 to 2006, including the senior managers who actually signed off on the deals.

RMBS were the building blocks of the crisis, bundles of toxic loans passed on to investors who were not told about their poor quality. Since the crash, major banks that issued RMBS have paid over $300 billion in government penalties, at least implicitly acknowledging they fucked up.

With settlements and deferred prosecution agreements, federal law enforcement tried to influence corporate culture so banks would discourage bad behavior and punish those responsible within their own ranks. But until now, nobody had studied whether the large civil fines actually did lead to internal discipline. So the researchers compared the careers of RMBS bankers after the crisis to other bank employees whose work was relatively free of fraud.

“We find no evidence that senior RMBS bankers at top banks suffered from lower job retention, fewer promotions, or worse job opportunities at other firms compared to their counterparts,” Griffin, Kruger, and Maturana write.

By 2016, according to the study, 85 percent of RMBS bankers remained in the financial industry, and 63 percent received a promotion in job title, a similar ratio to non-RMBS colleagues. They were also able to move freely to join competitors, with Bank of America, JPMorgan Chase, and Citigroup “particularly aggressive” in hiring RMBS bankers. The dynamic was true for every major underwriter. There was simply no evidence of any large-scale punishment.

Employees at smaller firms were hit marginally harder after the crisis. But there’s an easy explanation for that: The market for residential mortgage-backed securities disappeared after the crisis. While bigger banks had the ability to fold RMBS bankers into their larger operations, smaller firms couldn’t.

The study doesn’t just lay out this lack of consequences, but tries to explain the reasons why. The evidence contradicts the idea that the most culpable senior managers or those who caused the biggest penalties were held accountable, or that discipline was merely delayed until after public knowledge of fraud, or that employees were kept at their companies so they wouldn’t turn on their employers in future litigation.

The researchers concluded that one main explanation is that upper management “is concerned that large-scale discipline would implicitly acknowledge widespread wrongdoing and lack of oversight.” In other words, if the executives fired too many bankers for fraud, they would point the finger back at their own loss of control, and risk their own job.

We don’t necessarily see such fear with smaller-scale bank crimes. But, Griffin, Kruger, and Maturana write, “An important difference is that RMBS fraud was widespread.” While executives can cultivate a zero-tolerance reputation through disciplining small-time frauds, they’re less willing to do so when their own lack of awareness or oversight would come into question. So they accepted self-serving explanations that the crisis resulted from mass hysteria, that nobody was truly “responsible,” and moved the employees seamlessly into other parts of their business.

In other words, these bankers were too big to fail—too entrenched to get in real trouble.

This totally alters the perception of whether Wall Street is safer now than it was before 2008. If the response to industry-wide fraud was to pretend it didn’t exist, of course you would expect more fraud to occur in the future. And that’s exactly what seems to be happening. Banks have started to run screaming from the subprime auto-loan market, after spiking defaults raised questions about the same deceptions foisted on auto borrowers that we saw with mortgage borrowers a decade ago. The long post-crisis rap sheet, from rigging foreign exchange rates to saddling customers with fake accounts, suggests the same triumph of short-term profits over ethics. And these are just the abuses we know about today.

This all stems from the failure to hold individuals directly accountable. As the researchers conclude, “these employment outcomes send a message to current and future finance professionals that there is little, if any, price to pay for participating in fraudulent and abusive practices.” If you can help generate the worst meltdown since the Great Depression—arguably helping set the stage for a populist demagogue to take the presidency—and keep your job, why would you care about the implications of your next great swindle?

Follow David Dayen on Twitter.

Florida Attorney Mark Stopa: The party seeking foreclosure must demonstrate that it has standing to foreclose.

 

Editor’s Note:  Mark Stopa is an excellent foreclosure attorney located in Tampa, Florida.  We highly recommend his foreclosure blog a www.stayinmyhome.com.
https://scholar.google.com/scholar_case?case=16000307729425709560&hl=en&as_sdt=2006

PATRICK WALSH AND CATHERINE WALSH, Appellants,
v.
BANK OF NEW YORK MELLON TRUST, ETC., ET AL., Appellees.

Case No. 5D15-1898.District Court of Appeal of Florida, Fifth District.Opinion filed April 21, 2017.Appeal from the Circuit Court for Lake County, Carven D. Angel, Judge.

Mark P. Stopa, of Stopa Law Firm, Tampa, for Appellants.

Matthew A. Ciccio, of Aldridge/Pite, LLP, Delray Beach, for Appellee, Bank of New York Mellon Trust.

No appearance for other appellees.

PALMER, J.

Patrick and Catherine Walsh (borrowers) appeal the trial court’s final judgment of foreclosure entered in favor of Bank of New York Trust (the bank). Determining that the bank failed to prove standing, we reverse and remand for the entry of an involuntary dismissal.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012) (citations omitted). Additionally, a “party must have standing to file suit at its inception and may not remedy this defect by subsequently obtaining standing.” Venture Holdings & Acquisitions Grp., LLC v. A.I.M Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011). Thus, in order to prove standing, the bank was required to introduce admissible evidence that it (or its agent) possessed a properly-indorsed note at the inception of the case. Focht v. Wells Fargo Bank, N.A, 124 So. 3d 308, 310-11 (Fla. 2d DCA 2013).

Here, the copy of the note attached to the original complaint did not contain any indorsements, and the copy of the note attached to the amended complaint contained an undated blank indorsement. Such proof was insufficient to demonstrate standing because “standing cannot be established by simply filing a note with an undated indorsement or allonge months after the original complaint was filed.” Sorrell v. U.S. Bank Nat’l Ass’n, 198 So. 3d 845, 847 (Fla. 2d DCA 2016) (citing Focht, 124 So. 3d at 310; Cutler v. U.S. Bank Nat’l Ass’n, 109 So. 3d 224, 226 (Fla. 2d DCA 2012)). In addition to introducing the note, the bank presented a witness who testified that, based on his review of the business records, the bank had possession of the note at the time the bank filed its complaint. Yet, his testimony was not based on personal knowledge, but rather, on his review of a screenshot, which was not offered or admitted into evidence. Thus, that testimony was also insufficient to prove standing. Therefore, the trial court committed reversible error in entering final judgment of foreclosure in favor of the bank. See Gonzalez v. BAC Home Loans Servicing, L.P., 180 So. 3d 1106 (Fla. 5th DCA 2015) (holding that the testimony of a witness regarding business records that are not entered into evidence at trial is insufficient to prove standing in a foreclosure case).

Accordingly, we reverse and remand for the entry of an involuntary dismissal. REVERSED and REMANDED.

COHEN, C.J., and SAWAYA, J., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

 

Bank of America fined $45 million for Abusive Foreclosure

A bankruptcy judge issued a $45 million fine against Bank of America Corp. , calling the bank’s treatment of a California couple who fought to save their home “brazen” and “heartless” and should have added the words “illegal”, “fraudulent” and “unconscionable”.

Judge Christopher Klein of the U.S. Bankruptcy Court in Sacramento said the bank’s mortgage modification process and mistaken foreclosure on Erik and Renee Sundquist’s home left them in “a state of battle-fatigued demoralization.”

The case brings renewed attention to the mortgage industry’s loan servicing business. Klein alluded to systemic problems, saying the bank had little incentive to alter the mortgage terms and “kill a goose that keeps laying 6% golden eggs,” referring to the interest rate that the bank collected.

 

 
The fine money, earmarked mostly for law schools and consumer advocacy organizations, is meant to be large enough that it won’t “be laughed off in the boardroom as petty cash or ‘chump change,’” Klein said in the ruling, published Thursday. “It is apparent that the engine of Bank of America’s problem in this case is one of corporate culture…not rogue employees betraying an upstanding employer,” he added.

An expanded version of this report appears on WSJ.com.

To read the entire opinion go here: sundquist-opinion

The FBI convicts a small time operator while the Big Banks continue their Crime Spree unabated

The FBI proudly announces they have convicted a California mortgage rescue operation but pays no attention to the fact that banks are continuing their unabated crime spree that way surpasses a small time mortgage rescue operation.  The government has hard evidence that bank servicers are participating in criminal conduct that includes forging instruments, perjured affidavits, predatory servicing and modification scams and does nothing of impact to address the rampant fraud.

To date no executive calling the shots has gone to prison, further emboldening their illegal behavior.  In fact, most executives who designed the greatest financial fraud scheme the world has ever seen, are promoted or enter government.  Steven Mnuchin perfectly executed the OneWest master crime spree and instead of a stint in federal prison he was promoted to Secretary of Treasury.

The government has sanctioned and fined the banks hundreds of millions of dollars.   The paltry fines have done nothing to curtail their fraudulent behaviors.  A fine of $500 million is simply a tax write-off and a cost of doing business for the big servicers who are collecting billions in profits for foreclosing on loans they can’t prove they own.

At this point, servicing fraud, securitization fraud, foreclosure fraud and modification fraud are considered acceptable operating procedures for the big banks.    The Federal Bureau of Investigation has not done their job and are part of the cover up.  Meanwhile the FBI tries to distract people with stories about saving vulnerable homeowners from small time operators while the guilty go free.

In fact, if you have hard proof of fraud or criminal behavior and report it to the FBI, you will be told that your problem is a civil matter.   If the FBI is interested we would be happy to share dozens of cases where the bank and their counsel forged documents, submitted fraudulent affidavits to the court and foreclosed on homes they didn’t own by resorting to forgery and fraud.  The evidence we have is 100% conclusive and yet no governmental agency has any interest in what the big banks are doing to steal homes.

False Promises

California Man Sentenced for Operating Foreclosure Rescue Scheme

When California homeowners couldn’t make their mortgage payments and faced foreclosures during the Great Recession in 2008, some turned to a Long Beach church pastor for help.

For almost six years, Karl Robinson offered mortgage rescue services under his name and through companies such as Stay in Your Home Today, 21st Century Development, and Genesis Ventures Corporation. Now he’s serving four years in federal prison for his role in a scheme that brought in nearly $3 million in fees from unknowing clients.

Robinson and a group of co-conspirators attracted distressed homeowners with the promise of delaying foreclosures and evictions. They claimed to offer services that connected clients to experienced consultants who could keep them in their homes for an affordable fee.

It was all too good to be true—until an FBI-led investigation in 2013 determined that the mortgage rescue programs were far from legitimate.

“Robinson joined a growing number of con artists surfacing throughout the country during the subprime mortgage crisis focused on lining their own pockets instead of actually helping clients,” said FBI Special Agent Kevin Danford, who investigated the case out of the Bureau’s Los Angeles Field Office.

During the housing crisis, opportunistic groups like Robinson’s preyed on vulnerable and desperate homeowners through common scams such as offering affordable refinancing with lower monthly payments, low-interest deals, and delinquent mortgage pay-offs.

In 2008, Robinson began offering fraudulent foreclosure delay solutions by taking part in what were known as partial-interest bankruptcy scams (see sidebar). The process went on for months, providing Robinson with a steady flow of income as long as his clients were willing to pay.

Another scam delayed evictions for Robinson’s clients whose homes had been sold in foreclosure proceedings. Robinson falsely claimed in state court eviction actions that his clients still had tenants in those homes. Robinson would then file bankruptcies for the fictional tenants, postponing the evictions.

By 2011, clients and lenders were starting to catch on to Robinson’s scams. They turned to their local police, who confirmed the suspected fraud and alerted the FBI.

“Robinson joined a growing number of con artists surfacing throughout the country during the subprime mortgage crisis focused on lining their own pockets instead of actually helping clients.”

Kevin Danford, special agent, FBI Los Angeles

The Bureau opened an investigation on Robinson in August 2013 and subsequently obtained an external hard drive from his home that contained documents such as fake driver’s licenses, false identities, and incomplete bankruptcy petition drafts—which revealed the steps he was using to carry out his fraud scheme.

Following his arrest, Robinson confessed to knowingly defrauding his clients and the state and federal courts. Robinson pleaded guilty in August 2016 to the role he played in running the multi-year foreclosure rescue scheme.

“Robinson was able to delay foreclosure sales for more than 100 properties, and he filed at least 200 bankruptcy petitions,” said Danford. “His scheme not only impacted more than 60 lenders and clogged both federal bankruptcy court and state and local eviction court systems but also caused undue stress to numerous purchasers.”

Partial-Interest Bankruptcy Scams

The scam operator asks you to give a partial interest in your home to one or more persons. You then make mortgage payments to the scam operator in lieu of paying the delinquent mortgage. However, the scam operator does not pay the existing mortgage or seek new financing. Each holder of a partial interest then files bankruptcy, one after another, without your knowledge. The bankruptcy court will issue a “stay” order each time to stop foreclosure temporarily. However, the stay does not excuse you from making payments or from repaying the full amount of your loan. This complicates and delays foreclosure, while allowing the scam operator to maintain a stream of income by collecting payments from you, the victim. (Source: FDIC)

USA v. Minas Litos and Adrian and Daniela Tartareanu | 7th Circuit halts fraud restitution, urges fine for ‘reckless’ Bank of America

http://stopforeclosurefraud.com/2017/02/13/usa-v-minas-litos-and-adrian-and-daniela-tartareanu-7th-circuit-halts-fraud-restitution-urges-fine-for-reckless-bank-of-america/?utm_source=feedburner&utm_medium=twitterutm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+%7C+by+DinSFLA%29

The Indiana Lawyer-

Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order against them and urged the district court in Hammond to consider fining Bank of America for “facilitating a massive fraud.”

“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.

The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.

[THE INDIANA LAWYER]

http://www.theindianalawyer.com/th-circuit-halts-fraud-restitution-urges-fine-for-reckless-bank-of-america/PARAMS/article/42783

Editor’s note: This article has been corrected. In reversing a restitution order for Bank of America, the 7th Circuit urged a fine against the criminal defendants in this case.

Three defendants convicted of wire fraud in the purchase of 16 properties in Gary were clearly guilty of the crimes, but the 7th Circuit Court of Appeals Friday threw out a restitution order in favor of Bank of America and urged the district court in Hammond to consider fining the defendants instead.

“The bank was reckless,” Judge Richard Posner wrote in United States of America v. Minas Litos and Adrian and Daniela Tartareanu, 16-1384, -1385, 2248, 2249, 2330. The defendants were convicted of wire fraud, and the 7th Circuit affirmed those convictions, but reversed an order that they pay the bank restitution of $893,015, the amount it claimed was lost in the scheme.

The defendants were convicted on wire fraud charges filed in 2012 for a scheme in which home buyers were provided down payment kickbacks from the defendants after mortgages were secured on loan applications that provided false information. The defendants then walked away with the purchase price of the properties. But the 7th Circuit wrote Bank of America didn’t have clean hands, and there was little evidence that the bank would not have made the loans had it know the true source of the down payments — the defendants, not the buyers.

Posner detailed the bank’s dubious mortgage-lending history during the real-estate bubble leading up to the Great Recession, noting for instance one woman to whom the bank issued six mortgages in a 10-day period. Posner noted that District Judge Philip Simon said during sentencing in this case, “Bank of America knew [what] was going on. They’re playing this dance and papering it. Everybody knows it is a sham because no one is assuming any risk. So what’s wrong with saying they’re [of] equal culpability?”

“Indeed,” Posner continued, “and we are puzzled that after saying this the judge awarded Bank of America restitution — and in the exact amount that the government had sought.”

“Restitution for a reckless bank? A dubious remedy indeed — which is not to say that the defendants should be allowed to retain the $893,015. That is stolen money,” he wrote. “We don’t understand why the district judge, given his skepticism concerning the entitlement of Bank of America to an award for its facilitating a massive fraud, did not levy on the defendants a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any of  $893,015. 18  U.S.C. § 3571(d) authorizes a fine of not more than the greater of twice the gross gain or the gross loss caused by an offense from which any person either derives pecuniary gain or suffers pecuniary loss.”

The 7th Circuit vacated the restitution order as to the Tartareanus and remanded for full resentencing with the alternative remedy of a heavy fine on the defendants. The panel remanded Litos’ sentencing for the limited purpose of reconsideration of the restitution order with direction to consider whether a fine is possible.

 

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