Banks Lose Pivotal Foreclosure Case in Massachusetts High Court

Posted by revolt | Banks Lose Pivotal Foreclosure Case in Massachusetts High Court | Wednesday 23 February 2011 6:06 pm

Banks Lose Pivotal Foreclosure Case in Massachusetts High Court

By Thom WeidlichJan 7, 2011 8:44 AM PT  

US Bancorp and Wells Fargo & Co. lost a foreclosure case in Massachusetts’s highest court that will guide lower courts in that state and may influence others in the clash between bank practices and state real estate law. The ruling drove down bank stocks. 

The state Supreme Judicial Court today upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages, which he said were improperly transferred into two mortgage-backed trusts. “We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph D. Gants wrote. 

Wells Fargo, the fourth-largest U.S. lender by assets, dropped $1.10, or 3.4 percent, to $31.05 at 11:41 a.m. in New York Stock Exchange composite trading. US Bancorp declined 28 cents, or 1.1 percent, to $26.01. The 24-company KBW Bank Index fell as much as 2.2 percent after the decision was handed down. 

Claims of wrongdoing by banks and loan servicers triggered a 50-state investigation last year into whether hundreds of thousands of foreclosures were properly documented as the housing market collapsed. The probe came after JPMorgan Chase & Co. and Ally Financial Inc. said they would stop repossessions in 23 states where courts supervise home seizures and Bank of America Corp. froze U.S. foreclosures.

Teri Charest, a spokeswoman for Minneapolis-based US Bancorp, didn’t immediately return a call for comment. Jason Menke, a spokesman for San Francisco-based Wells Fargo, didn’t have an immediate comment. 

Foreclosures Voided 

Charest previously referred questions on the case to the loan servicer for both mortgage-backed trusts, American Home Mortgage Servicing Inc. Philippa Brown, a spokeswoman for Coppell, Texas-based American Home Mortgage, didn’t have an immediate comment. 

In March 2009, Massachusetts Land Court Judge Keith C. Long voided the foreclosures, finding that the mortgage transfers were done months after the house sales. In October of that year, Long declined the banks’ request to reverse that ruling after they argued that the documents that bundled together the mortgages had transferred those instruments to them. 

Today’s court decision held out the possibility of securitization documents properly transferring mortgages. Such documents, along with “a schedule of the pooled mortgage loans that clearly and specifically identifies the mortgage at issue as among those assigned, may suffice to be proof that the assignment was made by a party that itself held the mortgage,” Gants wrote. “However, there must be proof that the assignment was made by a party that itself held the mortgage.” 

The case is U.S. Bank v. Ibanez, 10694, Supreme Judicial Court of Massachusetts (Boston). The lower-court cases are U.S. Bank National Association v. Ibanez, 08-Misc-384283, and Wells Fargo Bank NA v. LaRace, 08-Misc-386755, Commonwealth of Massachusetts, Trial Court, Land Court Department (Boston).

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Judge Reams Citi Housing Lawyer

Posted by revolt | JUDGE REAMS CITI BANK FORECLOSURE ATTORNEY | Wednesday 23 February 2011 5:57 pm

Judge reams Citi housing lawyer

 By JOSH KOSMAN

Last Updated: 8:56 AM, December 17, 2010

Lawyers handling foreclosures in New York will think twice about showing up in court without the proper paperwork after a Brooklyn judge ripped into lender Citigroup and its unprepared lawyer. 

On Monday, Brooklyn Supreme Court Judge Arthur Schack mocked the bank and its lawyer for failing to ensure the accuracy of papers filed in a foreclosure case. 

“The court does not work for Citi and cannot wait for Citi, a multi-billion-dollar financial behemoth to get its act together,” Schack said, in throwing out the case.

The decision follows a new rule implemented by the chief judge of New York’s courts requiring every lawyer handling a foreclosure to sign a form verifying that all paperwork in the case is correct. 

Since the rule was enacted in October, lenders have largely stopped pursuing the 80,000 foreclosure cases pending in the state. 

In February 2009, Citi started proceedings against Angela Nunez, who owns property in the Cypress Hills section of Brooklyn. Bayside lawyer Vincent Surico, who represented Citi, said on Oct. 25 that he would file a written affirmation guaranteeing the paperwork. 

But this week Surico said he could not sign because before Nov. 8 Citi did not have the “procedures to comply” with the order. Schack said if Citi moved to reinstate the foreclosure, a lawyer would need to sign the affirmation. Surico and Citi declined to comment. 

Anne Copps, chairman of the Real Property Law Section of the New York Bar, said she believes this is the first New York case of its kind.

“This will certainly encourage lawyers not to move to foreclosure without affirmations,” she said. “It will take some time for lenders to review their files and pull together their affidavits so attorneys can do affirmations.”

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Where Things Stand: Foreclosure Paperwork Scandal

Posted by revolt | Where Things Stand: Foreclosure Paperwork Scandal | Wednesday 23 February 2011 5:49 pm

Where Things Stand: Foreclosure Paperwork Scandal 

by Marian Wang ProPublica, Dec. 27, 2010, 10:11 a.m.  

Some struggling homeowners are currently getting a temporary reprieve from foreclosure sales and evictions during the holiday season, but that doesn’t mean all foreclosure cases have stopped moving through the courts — and it doesn’t mean we’re done covering the developments in the foreclosure scandal either. Here’s where things stand:

Earlier this year, the discovery of sloppy documentation practices across the mortgage servicing industry caused many banks — first GMAC, then Bank of America, JPMorgan Chase and others — to temporarily freeze foreclosure sales as they conducted reviews of their document processing procedures. Mortgage servicers — often divisions within large banks — handle the day-to-day collection of mortgage payments.

They’re also supposed to provide loan assistance to struggling homeowners. Banks cast the problems as procedural mistakes but asserted that the underlying information in key foreclosure documents was accurate and did not result in any wrongful foreclosures. (As we’ve noted, banks and foreclosure defense attorneys disagree on what constitutes a wrongful foreclosure.) 

One by one, they resumed some or all foreclosures and are re-filing the questionable documents, but attorneys for homeowners have said that the fixes have been inadequate and the result has been “more of the same.” Last week, the Daily Business Review reported that new rules in Florida to remedy the problem of robo-signers — bank employees who had signed foreclosure documents without verifying their accuracy — had given rise to “robo-verifiers” who simply go through the motions of double-checking the documents.  

Iowa’s Attorney General Tom Miller, the point man on a 50-state joint investigation of the foreclosure scandal and mortgage servicing industry, has said that a quick settlement with banks and loan servicers is unlikely and that settlements would be worked out “one bank at a time.” He’s also said that criminal charges are a possibility. “We will put people in jail,” Miller told homeowners and advocates in Des Moines earlier this month. The states’ joint investigation remains ongoing, and some states have separately sued banks for deceiving homeowners fighting foreclosure.  

On the federal level, the status of the investigation by the Office of the Comptroller of the Currency and other banking regulators is less clear. The OCC, the Federal Reserve and the FDIC are currently divided over new rules proposed by the FDIC that would rein in the bank abuses that may be causing improper foreclosures, according to the Huffington Post. 

Last week, a group of more than 50 economists, analysts and academics wrote a letter to these federal regulators, urging them to establish national standards for servicing. In the letter, they said that servicing fraud presents problems for investors, homeowners and the U.S. economy. They also urged regulators to compel servicers to grant loan modifications and principal reductions — or reducing the amount owed by homeowners — when economically possible.  

We’ve noted, however, that for about half of the country’s mortgages, the chances for principal reductions are slim. That’s because the Federal Housing Finance Agency, the regulatory agency for government-controlled Fannie Mae and Freddie Mac, does not permit them to grant principal reductions, even though doing so could save the mortgage giants money in the long term and help homeowners whose mortgage debts have come to exceed what their home is currently worth. (Read our primer for more on how Fannie and Freddie — together with their approved foreclosure law firms — contributed to the foreclosure mess.) 

Reuters also reported that the Senate adjourned last week without confirming a new head for Fannie and Freddie’s regulator. Republican Sen. Richard Shelby put a hold on President Obama’s nominee, Joseph Smith, voicing concerns that Smith would support changing the rules to allow Fannie and Freddie to grant principal reductions. 

The Senate also adjourned last week without appropriating $35 million that had been authorized by the Dodd-Frank financial reform bill for funding legal aid for homeowners fighting foreclosure. That means the money — which legal experts including Miller had said was desperately needed — wasn’t actually set aside for use.  

Though foreclosures continue to speed through courts in some states ($), in recent months some judges have increasingly questioned banks bringing foreclosure cases in court, forcing them to prove their legal standing to foreclose.  

New Jersey’s Supreme Court Justice Stuart J. Rabner last week issued an order calling on six major mortgage lenders and loan servicers to appear before the court next month and demonstrate why the state should not suspend their foreclosure actions, the Associated Press reported. And earlier this month, a justice on New York’s supreme court testified before House lawmakers that he’s seen problems in foreclosure cases “on a recurrent basis” and that questions of legal standing have become “a pervasive issue.” 

But it’s also worth mentioning that foreclosures work differently depending on the state. Most states are “non-judicial foreclosure” states, meaning they don’t even require foreclosure actions to go before a judge. Bloomberg noted that in these states, banks can more easily and quickly process foreclosures, and homeowners have less recourse to fight back.

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FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT

Posted by revolt | FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT | Wednesday 23 February 2011 5:25 pm

FORECLOSURE FRAUD HEADED TO FLORIDA SUPREME COURT

By Peter Franceschina, Sun Sentinel – 7:46 p.m. EST, February 2, 2011 

A South Florida homeowner who is fighting a mortgage foreclosure could end up reshaping state law.

An appeals court on Wednesday asked the Florida Supreme Court to consider Roman Pino’s case as a matter of “great public importance,” a move legal experts say could result in reforms in foreclosure cases where there is evidence of fraud in the way documents were handled by lenders, mortgage servicers and law firms.

The decision by the 4th District Court of Appeal in West Palm Beach to send the case to the state Supreme Court was unusual, because neither the homeowner nor the bank seeking to foreclose on Pino’s home had asked for such a review.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote.

If the case is taken up by the Supreme Court and results in a decision in favor of the homeowner, legal experts who specialize in foreclosure law say the case has the potential to affect thousands of foreclosures across the state where there are allegations of document fraud.

“There is this huge problem that is evident across the state. The District Court of Appeal is handing this up to the Supreme Court because of the importance of this bigger problem,” said South Florida attorney Margery Golant, who works with The Florida Bar to educate attorneys about proper document handling in foreclosure cases.

Pino paid $203,000 for a Greenacres home in July 2006 and took out a $162,400 mortgage, land records show. He fell behind on his payments, and Bank of New York Mellon moved to foreclose in October 2008.

Pino hired Royal Palm Beach attorney Thomas Ice, whose law firm has been at the forefront of uncovering forged and fraudulent foreclosure documents.

The bank alleged in its foreclosure complaint that it was the owner of the mortgage note through an assignment from another lender, but didn’t include the assignment as part of the foreclosure complaint, according to the appellate decision. Ice’s attorneys moved to dismiss the complaint, arguing that the bank needed the assignment in order to foreclose.

Then the bank’s attorney, from the law offices of David J. Stern in Plantation, filed an amended complaint and attached an assignment that had not been recorded in land records and “which happened to be dated just before the original pleading was filed,” the appeals court wrote.

Ice wanted to try to prove Pino was the victim of fraud, but the judge would not allow him to go forward because the bank voluntarily dropped the foreclosure action. The appeals court agreed with the judge, but because of the importance of the issue, sent the case to the state’s highest court in Tallahassee. One appellate judge, Gary Farmer, disagreed, saying he thought the trial judge could have kept the case open so Ice could pursue his claim of fraud.

Ice said Wednesday that the bank dismissed the foreclosure just as his attorneys were set to take depositions of Stern employees to discover how the assignment was created. Stern’s firm is one of four foreclosure law firms in the state under investigation by the Florida Attorney General’s Office for document fabrication.

The case illustrates a problem that is playing out in cases around the state, where problematic documents are discovered, and the foreclosure is dismissed only to be later re-filed with different documents, Ice said.

That is what happened to Pino. The bank re-filed the foreclosure in August 2009, and that case is now going forward. “This seems to be a prevalent problem in foreclosures,” Ice said. “That is why [the appellate judges] want the Florida Supreme Court to rule on it. This is going to be significant to thousands of cases across the state.”

Three attorneys for the bank could not be reached for comment despite phone calls and e-mails seeking comment.

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BANKRUPTCY COURTS ENFORCE “PRODUCE THE NOTE” DEFENSE

Posted by revolt | BANKRUPTCY COURTS ENFORCE "PRODUCE THE NOTE" DEFENSE | Wednesday 23 February 2011 5:15 pm

Bankruptcy Courts Enforce “Produce the Note” Defenses by Borrowers

 (In RE Walker and the MERS Problem)

On May 20, 2010, the Bankruptcy Court for the Eastern District of California followed several other courts in striking claims by lenders who are unable to prove that they are the actual holders or owners of the promissory note. Similar to the Kansas decision of Landmark National Bank v. Kesler, the Walker Court held that because Mortgage Electronic Registration System (MERS) claims no interest in the note, it therefore has no ability to transfer any rights under the note. 

The MERS business model has troubled courts in recent years because MERS is not the lender, nor the servicer, claims no interest in the loan but is the designated “nominee” of the lender for recording and assignment purposes.

As ownership of the promissory note is controlling as to who may collect the debt, any transfer of interest in the deed of trust without transfer of the underlying debt (Note) is void as a matter of law. Since MERS only has an interest in the deed of trust, it lacks the power or standing to effectively transfer the debt from lender to another unless the other elements of perfecting the transfer are met. 

Rickie Walker filed for Chapter 11 bankruptcy in the Eastern District of California, Sacramento division (Case No. 2010-21656). Chapter 11 bankruptcy is a re-organization of debt for high-net worth individuals or businesses. Walker lives in a mansion (~5400 square foot “custom home” on a golf course with butler’s pantry and gourmet chef’s kitchen) that he or she managed to borrow over $1.4M against. Walker also lists another house on the schedules, presumably a rental home or a vacation home. 

During the claims period, creditors may file a proof of claim. Citibank filed a $1.4M proof of claim and Walker objected, noting that the loan was originated by Bayrock Mortgage Corporation and then MERS purported to assign the deed of trust to Citibank. This is the heart of the “MERS problem,” that the debt is split with the Note floating around or remaining with the original Note holder’s vault and the Deed of Trust being “resold” as a security. This creates a question as to who may actually collect the debt. 

The court sustained Walker’s objection to Citibank’s proof of claim. That does not eradicate the debt. The Walker Court is NOT saying that the borrower owns its house free and clear of any debt. The Walker Court noted that the holder of the promissory note could step forward and claim ownership of the mortgage. Further, while the Walker court suggests that physical transference of the note is necessary in order to perfect the claim, it also indicates that where there is a named beneficiary, an endorsement from the named beneficiary will be sufficient to prove the claim. 

These findings were laid out in the Court’s tentative ruling, but are not evident in the final order. Here is the relevant section from the tentative ruling: 

“The Proof of Claim at issue, listed as claim number 5 on the court’s official claims registry, asserts a $1,320,650.52 secured claim. The Debtor objects to the Claim on the basis that the claimant, Citibank, N.A., did not provided any evidence that Citibank has the authority to bring the claim, as required by Federal Rule of Bankruptcy Procedure 3001 (c), rendering the claim facially defective.” 

The court’s review of the claim shows that the Deed of Trust purports to have been assigned to Citibank, N.A. by Mortgage Electronic Registration Systems, Inc. as nominee for Bayrock Mortgage Corporation on March 5, 2010. (Proof of Claim No.5 p.36-37, Mar. 19,2010.) Debtor contends that this does not establish that Citibank is the owner of the underling promissory note since the assignor, Mortgage Electronic Registration Systems, Inc. (“MERS”), had no interest in the note to transfer. 

Debtors loan was originated by Bayrock Mortgage Corporation and no evidence of the current owner of the promissory note is attached to the proof of claim. It is well established law in the Ninth Circuit that the assignment of a trust deed does not assign the underlying promissory note and right to be paid, and that the security interest is incident of the debt. 4 Witkin Summary of California Law, Secured Transactions in Real Property §105 (10th ed). 

MERS AND CITIBANK ARE NOT THE REAL PARTIES IN INTEREST

Under California law, to perfect the transfer of mortgage paper as collateral the owner should physically deliver the note to the transferee. Bear v. Golden Plan of California, Inc., 829 F.2d 705,709 (9th Cir. 1986). Without physical transfer, the sale of the note could be invalid as a fraudulent conveyance, Cal. Civ. Code §3440, or as unperfected, Cal. Com. Code §§9313-9314. See Roger Bernhardt, California Mortgages and Deeds of Trusts, and Foreclosure Litigation §1.26 (4th ed. 2009).

 The note here specifically identified the party to whom it was payable, Bayrock Mortgage Corporation, and the note therefore cannot be transferred unless the note is endorsed. See Cal. Com. Code §§31 09, 3201, 3203, 3204. The attachments to the claim do not establish that Bayrock Mortgage Corporation endorsed and sold the note to any other party. 

TRANSFER OF AN INTEREST IN THE DEED OF TRUST ALONE IS VOID

MERS acted only as a “nominee” for Bayrock Mortgage under the Deed of Trust. Since no evidence has been offered that the promissory note has been transferred, MERS could only transfer whatever interest it had in the Deed of Trust. However, the promissory note and the Deed of Trust are inseparable.

“The note and the mortgage are inseparable; the former as essential, the later as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S. 271, 274 (1872); accord Henley v. Hotaling, 41 Cal. 22, 28 (1871); Seidell v. Tuxedo Land Co., 216 Cal. 165, 170 (1932); Cal. Civ. Code §2936. Therefore, if one party receives the note an another receives the deed of trust, the holder of the note prevails regardless of the order in which the interests were transferred. Adler v. Sargent, 109 Cal. 42, 49-50 (1895). 

Further, several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose upon the property secured by the deed. See In re Foreclosure Cases, 521 F. Supp. 2d 650,653 (S.D. Oh. 2007); In re Vargas, 396 B.R. 511,520 (Bankr. C.D. Cal. 2008); Landmark Nat’l Bank v. Kesler, 216 P.3d 158 (Kan. 2009); LaSalle Bank v. Lamy, 824 NY.S.2d 769 (N.Y. Sup. Ct. 2006). Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank.

Since MERS did not own the underling note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed with out ownership of the underlying note is void under California law. Therefore Citibank has not established that it is entitled to assert a claim in this case. 

MULTIPLE CLAIMS TO THE BENEFICIAL INTEREST IN THE DEED OF TRUST AND OWNERSHIP OF PROMISSORY NOTE SECURED THEREBY

Debtor also points out that four separate entities have claimed beneficial ownership of the deed of trust. (Obj. to Claim 3-5, Apr. 6, 2010.) The true owner of the underling promissory note needs to step forward to settle the cloud that has been created surrounding the relevant parties rights and interests under the trust deed. 

DECISION

11 U.S.C. §502(a) provides that a claim supported by a Proof of Claim is allowed unless a party in interest objects. Once an objection has been filed, the court may determine the amount of the claim after a noticed hearing. 11 U.S.C. §502(b). Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case. The objection is sustained and Claim Number 5 on the court’s official register is disallowed in its entirety, with leave for the owner of the promissory note to file a claim in this case by June 18, 2010. 

The court disallowing the proof of claim does not alter or modify the trust deed or the fact that someone has an interest in the property which can be subject thereto. The order disallowing the proof of claim shall expressly so provide.
The court shall issue a minute order consistent with this ruling.” 

PRACTICE POINTER

Essentially, the court needs proof that only one lender can collect on the debt. Some courts are starting to require the production of the original note showing interest by the collecting party because an assignment by MERS is insufficient evidence of ownership. The original is not always necessary, as evidence by the holder in the form of a declaration attesting that the copy is a true and accurate copy of the original and that the declarant has possession of the original promissory note is sufficient. 

As an additional practice note, it may be critical to make the assignment prior to the filing of the claim. In Ohio, Judge Boyko’s dismissed a series of cases because lenders were unable to prove an interest in the loan at the time of filing. Judge Boyko noted that all of the assignments had been made by the firm which made it unlikely that the assignments had been made prior to the complaint. [See In Re Vargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court).

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BANK OF AMERICA $67M SETTLEMENT

Posted by revolt | BANK OF AMERICA $67M SETTLEMENT | Wednesday 23 February 2011 5:02 pm

FL Attorney General Announces $67 Million National Settlement with Bank of America over Bid-Rigging Scheme

December 8, 2010

TALLAHASSEE, FL – Attorney General Bill McCollum today announced that Bank of America will pay $67 million under a multistate settlement for its involvement in a nationwide scheme to allegedly rig bids and engage in other anticompetitive conduct relating to municipal bond derivatives that defrauded state agencies, local governmental entities and not-for-profit entities.

The multistate settlement is part of a $137 million settlement Bank of America is entering into simultaneously with the Securities and Exchange Commission (SEC), the Office of the Comptroller of the Currency (OCC), the Internal Revenue Service (IRS) and the Federal Reserve.

The investigation focuses on individuals at Bank of America, other major financial institutions, and certain brokers in connection with the marketing and sale of municipal derivative investments, which are typically investment contracts that government issuers and not-for-profit entities use to reinvest the proceeds of tax-exempt bond offerings until the funds are needed or to hedge against interest rate risk. The transactions are often awarded after a competitive bidding process or negotiated directly between the financial institution and the issuer.

Today’s global settlements are the result of an ongoing criminal and civil investigation involving the state Attorneys General, the Department of Justice’s Antitrust Division (DOJ), the SEC, OCC and IRS revealing that from 1998 through 2003, Bank of America and other financial institutions and brokers allegedly rigged bids, improperly assisted in the bidding process and submitted non-competitive “courtesy” bids on these investments. The alleged schemes enriched financial institutions or brokers at the expense of state agencies, local governmental entities, and nonprofit organizations.

Bank of America was the first and only entity in the scheme that voluntarily self-reported the wrong-doing to the DOJ. Under the DOJ’s Corporate Leniency Program, Bank of America was granted conditional leniency based on its acknowledgement of wrongdoing, significant cooperation and making restitution. To date, the DOJ has brought criminal actions against seven individuals and one company and has obtained guilty pleas against eight others involved in the schemes.

The combined settlements will provide restitution to state agencies, local governmental entities, and nonprofit entities both within Florida and throughout the United States who entered into municipal bond derivative investments with Bank of America and were injured by the scheme. Eligible Florida entities will receive a total of approximately $5.2 million under the settlement.

Under the agreement, Bank of America must provide the Attorneys General with written standards of conduct with respect to antitrust and unfair trade practices and provide a copy to employees. Bank of America has represented that it has terminated its illegal conduct, and must also cooperate with the ongoing investigation of the Attorneys General into municipal bond derivatives.

Other states joining Florida in the Bank of America settlement include Alabama, California, Connecticut, Illinois, Kansas, Maryland, Massachusetts, Michigan, Missouri, Montana, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, South Carolina and Texas.

SOURCE: Florida Attorney General

 

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JUDGE DISMISSES FORECLOSURE CASE FOR FRAUD UPON THE COURT

Posted by revolt | JUDGE DISMISSES FORECLOSURE CASE FOR FRAUD UPON THE COURT | Wednesday 23 February 2011 4:53 pm

St. John’s County Judge Dismisses Foreclosure Case For Fraud Upon the Court

 June 22, 2010

Initially M&T Bank claimed that they owned the Note which had been lost. M&T’s second claim was that they found the Note and owned it by assignment. The bank’s third claim was that they did not own the Note, but instead Wells Fargo owned the Note pursuant to an Allonge stamped by First National Bank of Nevada in 2009. 

The court concluded that M&T Bank was attempting to commit a fraud upon the court for the following reasons: 1) Their three claims were all inconsistent with one another; 2) the First National Bank of Nevada could not have stamped the Allonge in 2009 because the FDIC had closed that bank in 2008; and 3) the chain of title on the Allonge and the chain title on the Assignment were inconsistent. 

With the overwhelming amount of Florida foreclosure lawsuits currently being filed, it has not been uncommon for the lenders to try to sneak one past the court and the homeowner. If this type of fraud is not challenged by the homeowner it will oftentimes go unnoticed by the overburdened courts.

Protect yourself by hiring an attorney, or arming yourself with the knowledge and ammunition you’ll need to fight your mortgage WAR and WIN!You, or your Lawyer can defend against this and other types of fraud throughout the foreclosure process.

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HOW TO FIND YOUR SECURITIZED LOAN’S POOLING AND SERVICING AGREEMENT AND KILL YOUR FORECLOSURE CASE!

HOW TO FIND YOUR SECURITIZED LOAN’S POOLING AND SERVICING AGREEMENT AND KILL YOUR FORECLOSURE CASE!


Individual mortgages originated by lenders like New Century and Argent were pooled into groups of approximately 8,000 mortgages from around the country to form a Mortgage Trust which held mortgages which had (on paper at least) cumulative values of between 10-12 million dollars.

These mortgages that were grouped together and given a name like “HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2″.

Interests in these mortgage trusts were then sold to teachers unions, investment funds and other institutional sources around the world. Before selling the interests in these trusts, the institutional investors were required to prepare the contract that would govern the rights between the depositor of the mortgages, trustee of the new trust and the company that would be responsible for collecting payments from homeowners and sending those payments out to those who had invested in the trust.

This contract is called the Pooling and Servicing Agreement. The important thing about the Pooling and Servicing Agreement is you will find in virtually every case that all of the parties who are involved violate nearly every provision of their own Pooling and Servicing Agreement. This has important consequences that we will talk more about later, but the Securities and Exchange Commission rules require these trusts to provide important other reporting information that was widely ignored or worse, falsified by the entities in control of these trusts. Finding such information can be a key to defending your case.

The Securities and Exchange Commission Edgar Database information can be found here at http://www.secinfo.com/$/Search.asp. You can also put the name of your Frakenstein, Alphabet Soup Trust into quotes, “The IXIX 2006-A Trust” into a straight google search and see what comes up. Here are Step-By-Step instructions:

Finding Pooling And Servicing Agreements (PSA’s) For Securitized Mortgage Loans.

The “Pooling and Servicing Agreement” is the legal document that contains the responsibilities and rights of the servicer, the trustee, and others over a pool of mortgage loans.

The Pooling and Servicing Agreement can be a stand-alone document or it can be part of another paper, usually called the “Prospectus.”

If the securitization is public, these documents must be filed with the Securities and Exchange Commission (SEC), and will be available to the public at www.sec.gov. Locating a Pooling and Servicing Agreement on the SEC website can be a challenge, therefore we recommend you exercise your search at www.secinfo.com. It is much easier than searching the SEC EDGAR website.

The most important information you will need to find the Pooling and Servicing Agreement is the name of the original lender, or the name of the Investment Trust listed as the Plaintiff in your foreclosure complaint. We will work through an example below.

Assume that the lender is Ameriquest Mortgage Co. We don’t know the name of the pool that the homeowner’s mortgage ended up in, but we do know that the mortgage was made on June 1, 2002. IMPORTANT TO KNOW THIS DATE. Look at the loan documents you signed at closing. Use the date on your MORTGAGE or DEED OF TRUST.

Step One:

Go to http://www.secinfo.com/$/Search.asp and simply type in the name of the Investment Trust listed as the Plaintiff in your foreclosure complaint. Remember, the Trustee, is not the same as the Investment Trust. click on the “Search” button, and if your Investment Trust is registered, SECinfo.com will provide you with a link to click on in the name of the Investment Trust. Simply click on that link, and you will be provided with a full and complete list of documents filed by the Investment Trust.

Step Two:

Once you have access to the document list, some of the more relevent documents you should look for, and review are the Prospectus 424 B5 document, the 10K filing, the 8K filing, the Pooling And Servicing Agreement, and the Trust Agreement. These are the document that will likely be the ones you want, assuming that the mortgage loan you are concerned about is in this pool.


Step Three:

Now Scroll down to the document titled “Prospectus.” Click on either “htm or text”
the Prospectus will appear. Now, bookmark this document on your web browser, so you can come back to it easily in the future.

Step Four:

Is this likely to be the document you want? Scroll down to page S-2 and you will see a Table of Contents. Included in that is the “Pooling and Servicing Agreement” which starts on page S-76. Also, scroll down one more page, past the Table of Contents, and you will see a “Summary of Prospectus Supplement.” Certain important information is listed there, including the cut-off and closing dates for loans that will be included in this pool.

For example, if the closing date is June 7, 2002,  based on this information, you can assume that this document governs the responsibilities of the servicer of the mortgage loan in question, unless that servicer tells you otherwise and can back it up with a reference to a different agreement or pool.

Other important information listed in this Summary includes
the title of the pool, and the identity of the servicer and trustee. The servicing rights may have been sold since this document was filed and the current servicer may be a different company but the trustee (the legal holder of the mortgage) should be accurate.

Step Five:

Go to the Pooling and Servicing Agreement to find what you need to know. It should describe how the servicer is paid and by how much, who keeps late and other fees, what authority it has to modify the loan or engage in workouts with homeowners, and its obligations to pass mortgage payments on to the trustee.

Some of the best information we get comes from intrepid consumer researchers out there who care enough to dig into these things. Perhaps the most powerful thing about this, and other online forums is the ability for consumers and advocates to share what they’ve found.

In our estimation, what this pro-se Defendant found is enough to blow the lid off his foreclosure case…..read on:

He was served a Lis Pendens, naming the plaintiff Deutsche Bank National Trust Company, As Trustee for HSI ASSETT SECURITIZATION CORPORATION TRUST 2006-OPT2 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-OPT2

He looked into the records for that entity in the SEC EDGAR online database and discovered that the last annual report was filed in 2007, contemporaneously with a FORM 15 filing.That Form 15 filing claimed a standing under 15d-6 of the 1934 SEC regulations which exempts the entity of filing an annual report, whereby the number of claimed investors had fallen below the SEC registration and reporting threshold of 300 persons. ( To my understanding, the same Form 15 filing is also used when a registered, reporting, entity is dissolved.)

He then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. The trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6.

The paper trail for the Trust with the SEC thereby *ends* Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006.

Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors. Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! He also noted that the “agent of record” of many of these trusts have changed many times, and are very infrequently “named”, but list only an address and phone number, (usually in New York).

In several of the cases he looked at in the EDGAR database, he actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank was in his case), or the trust “administrator” as listed in the PSA or any subsequent SEC filings.

He actually got the voicemail of some fellow at HSBC Bank who was the “anonymous” contact in his case! Our point is this; has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST?

We’ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the “plaintiff” has standing to bring the foreclosure action, has anyone thought to see if the “plaintiff trust” is even still active or not?

Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven’t filed anything with anyone in years as far as I can tell.

Certainly, as in his case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to *prove* they still exist?

What happens to a foreclosure case if the plaintiff entity,(the securitized trust, *not* the Trustee for it), no longer exists or cannot prove it exists? It lacks the legal capacity to sue, or foreclose, and the case must be dismissed as a matter of law.

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“The Wall Street Scam: Securitization Is Illegal”

Posted by revolt | “The Wall Street Scam: Securitization Is Illegal” | Thursday 10 February 2011 5:01 pm

“THE WALL STREET SCAM: SECURITIZATION IS ILLEGAL”

 March 12, 2011

 

Along with all of the other revelations of Banks being found guilty of perpetrating fraudulent foreclosures, by forging and fabricating foreclosure documents, the exposure of deposition testimony by Robo-Signers who have admitted their fraud, and the Bank’s corrupt law firms, which were hired, and submitted these fraudulent documents in court, in order to perpetrate their fraud upon the courts, now comes one of the, if not THE biggest SCAM perpetrated by Wall Street to recently be exposed. 

The clever, and complicated process of creating mortgage backed securities, or the securitization of your mortgage loan, has been exposed to be completely ILLEGAL! 

YES, the clever and complicated scheme, which made Wall Street and the Banks Trillionaires several times over, which practically bankrupted the entire United States economy, which caused the United States Government, and the tax payers to bail out the criminals who created the mess in the first place, and which brought the entire world economy to its knees, has been found to be ILLEGAL! 

Now, as we stated, this scheme was designed to be so complicated that not only the average Joe could not understand it, but even those who are fairly sophisticated in finance would not understand it either. But alas, the truth always seems to come to light over time. 

In light of the complexity, we will try to break this scheme down in its simplest form, and outline where and how the laws were broken. 

Lets start with a hopefully simple explanation of the securitization of your mortgage loan. Simply put, this was a process whereby Wall Street pooled together hundreds of mortgage loans, then converted those loans into unregistered securities, and illegally sold the rights and interest in those unregistered securities, to investors all over the world as certificates, (without your permission), which by the way is illegal pursuant to the Securities Act of 1933. 

In order to structure this in a way in which they could avoid double taxation, they created a Pass-Through Trust to place the securities certificates in. This Pass-Through Trust would then qualify as what’s called a Special Purpose Vehicle (“SPV”), which under the IRS Code, would allow the Trust to pass-through the tax liability to the investors, who the securities certificates would ultimately be sold to. Those investors who purchased the securities are referred to as the Certificate holders. Yes, I know. I told you it was complicated, but I’m trying to keep it simple, so hang in here with me.  

As I stated, when Wall Street converted your mortgage into unregistered securities, and then sold the securities, without your permission, it was illegal pursuant to the Securities Act of 1933. Additionally, the selling of your converted, unregistered securities provided you, the homeowner with an automatic right to rescind the loan, meaning the lender would have to give you all of your monthly payments made, and all of your closing cost back. Hold on, more violations to come!  

Next, since the sale of the rights and interest in the unregistered securities was illegal and invalid, no legal or equitable interest was ever transferred to the certificate holders. If the certificate holders have no legal or equitable interest in your property, then the certificate holders have no power of foreclosure of the property, and no rights upon which to pursue foreclosure against you, and their alleged rights of any sale are void. 

Consequently, If your loan was securitized, and the Trustee for the Trust is attempting to foreclose on your property, you can file a civil lawsuit against the Trust, and have their foreclosure stopped, and receive statutory damages in the amount of 3X’s the loan balance amount, for their illegal and fraudulent attempt to foreclose on your property. Yes, that’s right, Its your turn to get bailed out!

If you’re in this situation, and you can’t afford the high price of an attorney, instantly download our “Securities Fraud Lawsuit” document. It’s fully prepared. Just fill in the blanks with your specific information, and its ready to be filed with the court in your jurisdiction. CLICK HERE to download your “Securities Fraud Lawsuit” Document NOW!

This is just a brief overview of the most recently exposed WALL STREET SCAM, THE ILLEGAL SECURITIZATION OF YOUR MORTGAGE LOAN.

However, the jig is up, and you can turn the tables on Wall Street. Once you download your “Securities Fraud Lawsuit” Document, here are just a few of the legal causes of actions you will file against them, providing you with a hefty reward for your efforts upon prevailing, and finally some punishment for the Wall Street gangster violators:

1.)  Participation In A RICO Enterprise Through A Pattern Of Racketeering Activity. Yes, you will treat them like common mafia mob criminal gangsters. This law was enacted to stop organized crime.

2.)  Conspiracy To Commit Fraud And Conversion. Yes, they illegally converting your promissory note into a security instrument.

3.)  Fraudulent Misrepresentation As To Standing To Foreclose. Yes, They knew they had no rights to foreclose on your property, and yet they persisted in perpetrating a fraud upon the court.

In total there are 5 causes of actions upon which you will be entitled to collect damages upon.

Upon the first use of this document by a client of The Homeowners Revolt.Com, located in the state of Maryland, the alleged Investment Trust who was attempting to foreclose on the client’s home, immediately withdrew their foreclosure complaint, and are now running for the hills, as the client is now going after the gangsters for 3X’s the statutory damages. They are already trying to settle out of court with him.

The bottom line is this, your paid off politicians aren’t going to protect you. You the American Citizens have to rise up, as they have recently done in Tunisia, and Egypt. You must arm yourselves with the knowledge, and mortgage ammunition you’ll need, in order to fight your mortgage WAR and WIN! 

As stated, the “Securities Fraud Lawsuit” is the most recent, and one of the most powerful, and exciting legal documents available anywhere on the Internet to assist homeowners in their fight against the banks for Fraud in the securitization of their loan. As stated, It has been established that it is a violation of the Securities Act of 1933 to sell the rights and interests in the homeowner’s loan instrument as unregistered securities to those seeking to make lawful security investments, which is exactly what the banks have done.  

Additionally, the enforceability of the note and deed of trust by conversion in securitization, without the consent of the trustor (homeowner) is an IMPROPER CONVERSION AND ALTERATION OF THE NOTE AND MORTGAGE/TRUST DEED. There are also IRS Code violations committed by the banks in this process.  

However, again, most of these foreclosure cases involve the banks inability to produce the promissory note in order to prove they have any legal rights to foreclosure. Homeowners have additional legal strategies available to them, in order to stop the banks from fraudulently foreclosing on their homes. 

One of the more popular strategies that have been employed is the “Produce The Note” Strategy. As a large percentage of mortgage loans were securitized, and sold to investors all over the world, it has been difficult, if not impossible for the banks to produce the required documents that would establish their right to foreclosure, as those documents have been lost in the Wall Street ether. This is why the banks have attempted to forge and falsify the documents, but have been recently caught, and found guilty of fraud. 

And a final option, but definitely not the least, is the latest, and possibly one of the most powerful strategies available, which does not require a homeowner to go to court at all. It is strictly an administrative process pursuant to the Administrative Procedures Act Of 1946, by which the homeowner is legally authorized to reconvey the property title back into his/her name, thereby revoking any authority by the bank to foreclose on the property, and taking the property back free & clear usually within 90 days.  

This effectively puts the homeowner back in control, and forces the bank to deal with the homeowner, who now is negotiating from a position of strength, instead of begging the bank for help. The bank now has to go to the homeowner to resolve any title issues. 

Until such time as our Government Officials decide that they will uphold, and enforce the rule of law, and the U.S Constitution, and not allow themselves to be bought by the bank’s lobbyist, the American Homeowner must be willing to fight for their Constitutional Rights, and homes by any legal means necessary against the Federal Reserve, The Banks, and the wealthy Wall Street Barons, who created this mess with the full intention of fleecing the American Citizens from all of their remaining wealth in the form of equity in their homes.

 

 

 

Written By:

Matt Brockman

The Homeowners Revolt.Com

 

BANKS FOUND GUILTY OF FORECLOSURE FRAUD – Part 2

Posted by revolt | BANKS FOUND GUILTY OF FORECLOSURE FRAUD – Part 2 | Thursday 10 February 2011 4:40 pm

BANKS FOUND GUILTY OF FORECLOSURE FRAUD – Part 2

February 8, 2011

As discussed in part 1 of this article, as a Result Of The Recent Investigation Launched By The Florida Attorney General’s Office, Bank Of America, GMAC Bank, JP Morgan Chase, and others, have All Been Found Guilty Of Foreclosure Fraud.

Depositions By The Banks Employees Revealed That The Banks Have Been Forging, Falsifying, And Fabricating Documents In Order To Foreclose On Millions Of Homes Owned By Unsuspecting American Homeowners. 

Now, is it possible that our own Government is protecting the massive fraud perpetrated by these greedy banksters, in order to exonerate them from the civil and criminal penalties that could hold these greedy Wall Street bloodsuckers accountable for their criminal behavior? 

It looks like its about to be business as usual. The Attorney General’s of all 50 states are in settlement talks with the banks to make a deal that will allow them to pay off the Federal Government, in exchange for avoiding any criminal prosecutions for fraud.  

WOW! Who says crime doesn’t pay? It pays big time when you’re a greedy Wall Street Baron, and a criminal Bankster in America, who controls the world economy, and subsequently the Government which is supposed to police it.  

In January of 2011, Bank of America (BAC, Fortune 500) just paid a $3 Billion settlement to Fannie Mae and Freddy Mac, for selling them fraudulent loans. Hey, what’s $3 Billion, when you’ve made Tens of Trillions on the fraudulent loans they sold all over the world? Just a drop in the bucket, and the price of doing business if you get caught. Pay a fine, but definitely don’t do any jail time, when you’re obviously above the law in America. 

Next, FL Attorney General Announces a $67 Million National Settlement with Bank of America over its Bid-Rigging Scheme for its involvement in a nationwide scheme to allegedly rig bids and engage in other anticompetitive conduct relating to municipal bond derivatives that defrauded state agencies, local governmental entities, and not-for-profit entities. Does the scandal ever cease? Is this the American you thought you knew?

Again, same broken record, Attorney General Edmund G. Brown Jr. announced in December of 2010, that Wells Fargo had agreed to provide loan modifications worth more than $2 billion, to thousands of California homeowners with “pick-a-pay” loans and to pay an additional $32 million to thousands of borrowers who lost their homes through foreclosure. Again, banks due the crime, but don’t do the time!

The bottom line is this, your paid off politicians aren’t going to protect you. You the American Citizen’s have to rise up, as they have recently done in Tunisia, and Egypt. The greedy banksters have one motivation, GREED! However, if you arm yourselves with the knowledge, and mortgage ammunition you need, you can fight your mortgage WAR and WIN!

The answer is simple! Take the profit out of the bankster’s fraudulent scheme, and they go away! Arm yourselves with the knowledge and power to make the bankster’s fraudulent scheme blow up in their own faces!

Until such time as The Department Of Justice, The SEC, And The Attorney Generals of each state decide to pursue criminal indictments, instead of the menial fines, and slap on the wrist as indicated above, homeowners have no choice but to implement their own available legal strategies to fight to save their homes.  

One of the most recent, and exciting legal options available to homeowners today is a Civil Lawsuit against the banks for Fraud in the securitization of your loan. It has been determined that it is a violation of the Securities Act of 1933 to sell the rights and interests in the homeowner’s loan instrument as un-registered securities to those seeking to make lawful security investments, which is exactly what the banks have done.  

Additionally, the enforceability of the note and deed of trust by conversion in securitization, without the consent of the trustor (homeowner) is an IMPROPER CONVERSION AND ALTERATION OF THE NOTE AND DEED OF TRUST. There are also IRS Code violations committed by the banks in this process. See the upcoming article “The Wall Street Scam: Securitization Is Illegal” at www.thehomeownersrevolt.com 

However, again, most of these foreclosure cases involve the banks inability to produce the promissory note in order to prove they have any legal rights to foreclosure. Homeowners have additional legal strategies available to them, in order to stop the banks from fraudulently foreclosing on their homes. 

One of the more popular strategies that have been employed is the “Produce The Note” Strategy. As a large percentage of mortgage loans were securitized, and sold to investors all over the world, it has been difficult, if not impossible for the banks to produce the required documents that would establish their right to foreclosure, as those documents have been lost in the Wall Street ether. This is why the banks have attempted to forge and falsify the documents, but have been recently caught, and found guilty of fraud.  

And a final option, but definitely not the least, is the latest, and possibly one of the most powerful strategies available, which does not require a homeowner to go to court at all. It is strictly an administrative process pursuant to the Administrative Procedures Act Of 1946, by which the homeowner is legally able to reconvey the property title back into his/her name, thereby revoking any authority by the bank to foreclose on the property, and taking the property back free & clear usually within 90 days.  

This effectively puts the homeowner back in control, and forces the bank to deal with the homeowner, who now is negotiating from a position of strength, instead of begging the bank for help. The bank now has to go to the homeowner to resolve any title issues. 

Until such time as our Government Officials decide that they will uphold, and enforce the rule of law, and the U.S Constitution, and not allow themselves to be bought by the bank’s lobbyist, the American Homeowner must be willing to fight for their Constitutional Rights, and homes by any legal means necessary against the Federal Reserve, The Banks, and the wealthy Wall Street Barons, who created this mess with the full intention of fleecing the American Citizens from all of their remaining wealth in the form of equity in their homes. 

Written By:

Matt Brockman

 

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