text:
$High$ Priced Attorneys Don't Necessarily Buy Truth
Posted on October 10, 2013 by Deadly Clear
The GLASKI opinion has made the Wall Street banking industry crazy. There was an outcry for publication of this case as it allowed homeowners to challenge fabricated assignments. The Court agreed to publish the opinion.
The securitization case was briefed and argued as a New York law trust case when in fact it was actually a Delaware trust. While the outcome may have likely been the same, the Court's opinion was based upon New York Trust Law. Thereafter, the banks (that it appears failed to raise these issues during or after the hearings) wanted the opinion to be de-certified for publication.
Apparently, no one realized that the WaMu Mortgage Pass-Through Certificates Series 2005-AR17 Trust was a Delaware trust. Frankly, it is hard to believe that anybody even bothered to read the PSA. As a seasoned researcher, right after you verify the Closing Date, the next stop is usually Article II – Conveyances of Mortgages and then you go to Governing Law. The first full paragraph of Section 2.01. Creation of the Trust reads:
LaSalle Bank National Association is hereby appointed as the trustee of the Trust, to have all the rights, duties and obligations of the Trustee with respect to the Trust expressly set forth hereunder, and LaSalle Bank National Association hereby accepts such appointment and the trust created hereby. Christiana Bank & Trust Company is hereby appointed as the Delaware trustee of the Trust, to have all the rights, duties and obligations of the Delaware Trustee with respect to the Trust hereunder, and Christiana Bank & Trust Company hereby accepts such appointment and the trust created hereby. It is the intention of the Company, the Servicer, the Trustee and the Delaware Trustee that the Trust constitute a statutory trust under the Statutory Trust Statute, that this Agreement constitute the governing instrument of the Trust, and that this Agreement amend and restate the Original Trust Agreement. The parties hereto acknowledge and agree that, prior to the execution and delivery hereof, the Delaware Trustee has filed the Certificate of Trust. [emphasis added]
C'mon guys – Delaware Trustee is mentioned 4 times in one paragraph. Nevertheless, the point that the Court was making was that challenge to the assignment by the homeowner should be permitted and even though New York Trust Law was used in the decision, had Delaware trust law been on the table the Court may have reached the same conclusion as Delaware trust law appears even more stringent.
What is amazing is that the banks attorneys tried to use correspondence to re-argue the case and made some disingenuous statements in order to ultimately request depublication of Glaski v. Bank of America, N.A. The depublication rules allow for any person to argue why an opinion should not be published.
While the banks hired their flashy high-priced attorneys to make their depublication requests, it has caused several excellent letters to be written in support of maintaining the publication that the public originally requested to be published.
Michael T. Pines' letter can be found on Stopforeclosurefraud.com Letter to CA Supreme Court from Michael T. Pines in Response and Opposition to the Requests to Depublish Glaski v. Bank of America N.A. Opinion. "I am writing in opposition to the request by Deutsche Bank National Trust Company's request to depublish in the above matter. I will only address one issue – the wrongful conduct of counsel seeking depublication," writes Pines and continues, "A problem with the securitization of loans, is that the banks and their attorneys, that were, and are, involved in securitization serve no one but their own interests. They have violated countless laws. There are of course countless government and private cases pending regarding such. There are government actions, including criminal investigations against foreclosure law firms."
Charles Cox, a California Contract Paralegal penned another brilliant letter to the Court [Click HERE for PDF version]:
and Associate Justices
350 McAllister Street
Re: Glaski v. Bank of America, National Association et al.
Supreme Court Case No. 5213814;
Appellate Case No. F064556, Disposition Date 07/31/2013;
Trial Court Case No. 09CECG03601
CORRECTED RESPONSE AND OPPOSITION TO REQUEST FOR DEPUBLICATION
Dear Justices of the Supreme Court:
Pursuant to California Rules of Court ("CRC"), Rule 8.1125(b) et seq., the undersigned
writes to respectfully and timely oppose and object to the requests to depublish the published opinion of the appellate court for the above referenced case by providing the following corrected response.
STATEMENT OF INTEREST AND INTRODUCTION
The undersigned's interest in this response to the depublication request, relates to clients
served in the undersigned's practice as a California Bus & Prof. Code qualified paralegal which consists of working on these types of cases with attorneys on a regular basis. We represent many clients who will be affected by this currently citable appellate court Opinion with some cases having already cited Glaski as applicable authority.
The clarity the appellate court provided in its well-reasoned Opinion was qualified for
publication, certified for publication and accordingly, was rightfully published. The undersigned respectfully requests that the Glaski appellate court Opinion not be upset for the following additional reasons.
THE DEPUBLICATION REQUEST PROCESS IS NOT A FORUM TO RE-TRY THE CASE A DEPUBLICATION REQUEST SHOULD ONLY BE UTILIZED TO CONFIRM THAT THE APPELLATE COURT'S OPINION MET THE STANDARD FOR PUBLICATION1
The depublication process should not be used as a forum to re-try the case. Supreme
Court review was an available option to the defendants but no petition was filed.
Justice Joseph R. Grodin wrote in 1984 confirming earlier explanations by the late Chief
Justice Donald R. Wright 2 and then Chief Justice Rose Elizabeth Bird,3 that depublication is only ordered because the majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained citable as precedent.4 Such is not the case here.
The appellate court had no choice but to assume the purported "Trust" was formed under
New York Trust Laws because Plaintiff claimed it was and the defendants failed to refute or object to this stated fact in the instant case. The law under which the trust was purportedly formed does not change the general concept the appellate court established, that assets are prohibited from entering a trust after the trust closing-date. This is in order to mitigate tax liability and the potential of losing the trust's tax exempt status by utilizing the restrictive requirements required to maintain limited liability for the trust as a pass through entity.
Regardless of whether or not organized under New York Trust Laws, it was still a Real
Estate Mortgage Investment Conduit ("REMIC") trust where I.R.S. Code § 860 et seq., and
Delaware Code, Title 12, Chapters 35 and 38 et seq., each provides similar if not more comprehensive requirements related to the actual purpose of the trust; for instance:
"Every direct or indirect assignment, or act having the effect of an assignment,whether voluntary or involuntary, by a beneficiary of a trust of the beneficiary's interest in the trust or the trust property or the income or other distribution therefrom that is unassignable by the terms of the instrument that creates or defines the trust is void."5
Statements in the requests for depublication that Delaware Statutes provide no
comparable provision that would render a belated assignment to a trust void is simply untrue.
The appellate justices' Opinion was sound, applicable and well-reasoned. Defendants' Petition for Rehearing was rightfully denied and the numerous requests for publication were properly considered and the case was certified for publication.
THE APPELLATE COURT'S OPINION MET THE STANDARDS
FOR CERTIFICATION AND PUBLICATION
The appellate court's Opinion met the standard for certification and publication as
authorized by Cal. Rules of Court, Rule 8.1105(c) which provides that an opinion of a court of appeal or a superior court appellate division – whether it affirms or reverses a trial court order or judgment – should be certified for publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated
in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of
a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either the
development of a common law rule or the legislative or judicial history of a provision
of a constitution, statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied
in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and
publication of the majority and separate opinions would make a significant
contribution to the development of the law.
The undersigned contends the appellate court's well-reasoned Opinion was published on
the grounds of sub-sections 2, 3, 5, 6, and 8 referenced above and more specifically related to Sections III. sub-sections A-H and Section IV. sub-section B of the appellate court's Opinion. 6
Section III.A. The appellate court's Opinion clarifies securitization issues related to the
lack of transfer of the deed of trust into securitized trusts after the closing date, which was
deemed not acceptable due to the controlling "pooling and servicing agreement" and statutory requirements applicable to REMIC trusts, which is further clarified in FN 12 of the opinion? This meets the standard for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
Section III.B. Clarifies previous issues and opinions related to wrongful foreclosure by a
nonholder of the deed of trust; or when a party alleged not to be the true beneficiary, instructs the trustee to file a Notice of Default and initiate nonjudicial foreclosure which conflicts with other holdings; adopts more applicable holdings and further clarifies that a plaintiff must allege facts that show the defendant who invoked the power of sale was not the true beneficiary. This meets the standard for publication per CRC, Rules 8.1105(c) (3), (5), (6) and (8).
Section III. C. This is an important opinion not previously held by other courts clarifying
the question of whether the purported assignment was void, not dependent on whether the
borrower was a party to, or third party beneficiary of the assignment agreement. This meets the standard for publication per CRC, Rules 8.1105(c)(2), (3), (5), (6) and (8).
Section lII.E. This section distinguishes the Gomes 8 case which seems to be universally
utilized by other courts and defendant attorneys in California whether the application applies to the actual facts of the case at bar or not. Of particular note is the appellate court's interpretation allowing borrowers to pursue questions regarding the chain of ownership and consolidation with the Herrera 9 case as opposed to Gomes which applies to not only Glaski but many other cases. The Opinion of the appellate court clarifies important characteristics authorized by the standards for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
Section III.F. Banks raise failure to tender as a defense in virtually every case whether applicable or not. The Glaski opinion correctly holds that tender is not required where the
foreclosure sale is void, rather than voidable which meets the standard for publication per CRC, Rules 8.1105(c)(3), (5), (6) and (8).
GLASKI WAS CORRECTLY DECIDED
Whether Glaski was a party or third-party beneficiary to the purported securitized trust agreement or Pooling and Servicing Agreement ("PSA") is irrelevant. The PSA itself did NOT allow transfer into the purported trust AFTER the closing-date whether the borrower invokes standing to challenge assignment into the trust or not. The same holds true whether or not the borrower was a party or third-party beneficiary of the PSA. The appellate court ruled that such a transfer after the closing-date was not allowed as it would violate the purpose of the securitized trust as a REMIC as further addressed herein.
Professor Adam Levitin 10 of Georgetown Law School states the following, regarding the view (as expressed in the requests for depublication) that a homeowner has no standing to challenge assignments into a trust because of not being a party to the PSA:
"I think that view is plain wrong. It fails to understand what PSA-based foreclosure defenses are about and to recognize a pair of real and cognizable Article III interests of homeowners: the right to be protected against duplicative claims and the right to litigate against the real party in interest because of settlement incentives and abilities.
The homeowner is obviously not party to the securitization contracts like the PSA (query, though whether securitization gives rise to a tortious interference with the mortgage contract claim because of PSA modification limitations•••). This means that the homeowner can't enforce the terms of the PSA. The homeowner can't prosecute putbacks and the like. But there's a major difference between claiming that sort of right under a PSA and pointing to noncompliance with the PSA as evidence that the foreclosing party doesn't have standing (and after Ibanez, it's just incomprehensible to me how this sort of decision could be coming out of the 1st Circuit BAP with a MA mortgage).
Let me put it another way. Homeowners are not complaining about breaches of the PSA for the purposes of enforcing the PSA contract. They are pointing to breaches of the PSA as evidence that the loan was not transferred to the securitization trust. The PSA is being invoked because it is the document that purports to transfer the mortgage to the trust. Adherence to the PSA determines whether there was a transfer effected or not because under NY trust law (which governs most PSAs), a transfer not in compliance with a trust's documents is void. And if there isn't a valid transfer, there's no standing. This is simply a factual question-does the trust own the loan or not? (Or in UCC terms, is the trust a "party entitled to enforce the note"-query whether enforcement rights in the note also mean enforcement rights in the mortgage•••) If not, then it lacks standing to foreclosure.
It's important to understand that this is not an attempt to invoke investors' rights under a PSA. One can see this by considering the other PSA violations that homeowners are not invoking because they have no bearing whatsoever on the validity of the transfer, and thus on standing. For example, if a servicer has been violating servicing standards under the PSA, that's not a foreclosure defense, although it's a breach of contract with the trust (and thus the MBS investors). If the trust doesn't own the loan because the transfer was never properly done, however, that's a very different thing than trying to invoke rights under the
I would have thought it rather obvious that a homeowner could argue that the foreclosing party isn't the mortgagee and that the lack of a proper transfer of the mortgage to the foreclosing party would be evidence of that point. But some courts aren't understanding this critical distinction. Even if courts don't buy this distinction, there are at least two good theories under which a homeowner should have the ability to challenge the foreclosing party's standing. Both of these theories point to a cognizable interest of the homeowner that is being harmed, and thus Article III standing. First, there is the possibility of duplicative claims. This is unlikely, although with the presence of warehouse fraud (Taylor Bean and Colonial Bank, eg), it can hardly be discounted as an impossibility. The same mortgage loan might have been sold multiple times by the same lender as part of a warehouse fraud. That could conceivably result in multiple claimants. The homeowner should only have to pay once. Similarly, if the loan wasn't properly securitized, then the depositor or seller could claim the loan as its property. Again, potentially multiple claimants, but the homeowner should only have to pay one satisfaction.
Consider a case in which Bank A securitized a bunch of loans, but did not do the transfers properly. Bank A ends up in FDIC receivership. FDIC could claim those loans as property of Bank A, leaving the securitization trust with an unsecured claim for a refund of the money it paid Bank A. Indeed, I'd urge Harvey Miller to be looking at this as a way to claw back a lot of money into the Lehman estate.
Second. the homeowner had a real interest in dealing with the right plaintiff because different plaintiffs have different incentives and ability to settle. We'd rather see negotiated outcomes than foreclosures, but servicers and trustees have very different incentives and ability to settle than banks that hold loans in portfolio. PSA terms, liquidity, capital requirements, credit risk exposure, and compensation differ between services/trustees and portfolio lenders. If the loans weren't properly transferred via the securitization, then they are still held in portfolio by someone. This means homeowners have a strong interest in litigating against the real party in interest.11
The arguments proffered supporting depublication are nothing more than meritless
attempts to re-argue the Glaski case. The appellate court's Opinion was well-reasoned and correctly decided. The appellate court's opinion promotes the requirement that in order to foreclose on an owner's property, the foreclosing entity must have obtained standing to foreclose properly, not based on a void assignment in contravention of the foreclosing entity's controlling documents. In this case an assignment into a securitized trust after the closing-date of the trust has been properly deemed invalid and void by the appellate court.
For the foregoing reasons and on behalf of clients and persons this case affects, the
undersigned respectfully request this Honorable Court NOT depublish the above referenced appellate court Opinion due to the importance that the continued ability to cite this well reasoned Opinion has provided and will continue to provide in the future.
1 See Joseph R. Grodin, The Depublication Practice o/the California Supreme Court, 72 Cal. L. Rev. 514, 514 n.1 (1984).
See Julie H. Biggs, Note 8. at 1185 n.20, Decertification of Appellate Opinions: The Need for Articulated Judicial Reasoning and Certain Precedent in California Law, 50 S. Cal. L. Rev. 1181, 1200 (1977) quoting Chief Justice Wright.
In Justice Bird's address at the State Bar Convention in San Francisco, CA Sept. 10, 1978, in Report, LA. Daily J., Oct. 6, 1978, at 4, 8, speaking of depublished opinions as ones "with which the court does not agree" and as "erroneous ruling[s]".
Grodin, supra, note 7, at 514-15.
Delaware Decedents' Estates and Fiduciary Relations, Chapter 35, Trusts, Subchapter III. General Provisions § 3536.
The "Section" stated herein and below, relate to the applicable Sections of the appellate court's Opinion.
"This allegation comports with the following view of pooling and servicing agreements and the federal tax code provisions applicable to REMIC trusts. "Once the bundled mortgages are given to a depositor, the [pooling and servicing agreement] and IRS tax code provisions require that the mortgages be transferred to the trust within a certain time frame, usually ninety dates from the date the trust is created. After such time, the trust closes and any subsequent transfers are invalid. The reason for this is purely economic for the trust. If the mortgages are properly transferred within the ninety-day open period, and then the trust properly closes, the trust is allowed to maintain REMIC tax status." (Deconstrueting Securitized Trusts, supra, 41 Stetson L.Rev. at pp. 757-758.)" Glaski, supra fn 12.
Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.
Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366.
See: http://www.law.georgetown.edu/faculty/levitin-adam-j.cfm.
http://www.creditslips.arg/creditslips/2011/07/standing-ta-challenge-standing.html.
Thank you Charles for allowing DC to post your letter and to Anita, Shelley, Deontos and Steve for their research and heads-up!
This entry was posted in Foreclosure Defense and tagged "Adam Levitin", "Bank of America", "New York trust law", "Wall Street", APPELLATE COURT, Article III, California Rules of Court, Charles Cox, Chief Justice Donald R. Wright, Chief Justice Rose Elizabeth Bird, Chief Justice Tani G. Cantil.Sakauye, Christiana Bank & Trust Company, Colonial Bank, Conveyances of Mortgages, criminal investigations, Decertification of Appellate Opinions, Delaware Decedents' Estates and Fiduciary Relations, Delaware Statutes, Delaware Trust, depublication, Deutsche Bank, fabricated assignments, FDIC, foreclosures, Glaski, Harvey Miller, Homer, I.R.S. Code § 860, Ibanez, IRS tax code, Joseph R. Grodin, Julie H. Biggs, Justice Bird, Justice Joseph R. Grodin, Justices of the Supreme Court, LaSalle Bank, MBS, Michael T. Pines, NY Trust law, Pooling and Servicing Agreement, PSA, REMIC, securitization, servicers, Supreme Court, Taylor Bean, The Depublication Practice o/the California Supreme Court, Trustees, WaMu Mortgage Pass-Through Certificates Series 2005-AR17 Trust, warehouse fraud by Deadly Clear. Bookmark the permalink.
135 thoughts on "$High$ Priced Attorneys Don't Necessarily Buy Truth"
shelter1banks0 on October 11, 2013 at 7:23 am said:
BRAVISSIMO!!! Outstanding work Charles and Deadly Clear for this excellent post!!!
Papergate
Oh and Michael Pines letter was AWESOME you guys!!!!
Shelley Erickson on October 11, 2013 at 9:28 am said:
Yes thanks for all you do to stop this organized crime against Americans. The public deserves this case law to protect our property rights. The banks are obviously afraid of this case law. I for one will send these letters in showing my support and signature at the bottom.
Sharon Nettleton on October 11, 2013 at 9:45 am said:
Thank you all for the hard work and due diligence displayed and exerted in this rebuttal. This is way over the heads and hearts of the foreclosure mill attorney's as it states the TRUTH….a concept that the foreclosure mill attorney's have "raped and violated" to their own demise, as they continue to work hard everyday trying to "robo-sign the fraud and lies" into existence. Bravo, Bravo!
We should all send the letters, show the banksters' and their corrupt attorney's that they have "awoken the sleeping giant" i.e. the American people's righteous indignation.
Shelley Erickson on October 11, 2013 at 12:31 pm said:
"Although Plaintiff wishes to focus on Defendants' standing to challenge the MERS assignment, Defendants also have an essential contractual obligation to defend generally the title. From the mortgage, Section (Q), BORROWER COVENANTS: "Borrower warrants and will defend the title to the Property against all claims and demands, subject to any encumbrances of record." Yep, it's an obligation.
Adding a short blip sent to me by a friend, folks as when they say you are a "deadbeat" and do not have the right to questions them….read your deed of trust….BORROWER'S COVENANTS….. most I have read state that you swear to defend this deed against any and all recorded emcumbrances….SO, with that you not only have the right BUT THE CONTRACTUAL DUTY TO CHALLENGE AND DEFEND…. use it, it is the document you signed…..and your duty to protect…..
I should say both blimps are from a freind. And I agree and have read this. We have an obligation to protect our titles and the article above points out the reasons we have the right to challenge the valid or invalid transfers. Both my home and my sons and all assignments I have seen are years after the PSA could have accepted the transfer. This is a killer issue for the banks and will be contested again I am sure. The judges need to wake up to the roses and allow due process, instead of enabling the crime.
Bob G. on October 12, 2013 at 9:23 am said:
Shelley,
You're misconstruing the purpose of the cited language. The borrower warrants to defend title, subject to any encumbrances of record. The subject mortgage or deed of trust is an encumbrance of record. After a hundred years of drafting such mortgage instruments, the banks would have figured this one out and changed it, if it meant what you thought it meant.
We can not defend our title without being allowed discovery of who owns the loan and who has standing and jurisdiction. We are blocked from defending our title with the real party that has standing and jurisdiction. Lack of proof of standing allows mis-rulings in courts where the judge had no jurisdiction to rule. The wrong party had no standing to be in the court room. It allows crime scenes in the courts. That is what is happening.
Bob Hurt on October 12, 2013 at 10:32 am said:
But, nobody forced you to stop making your mortgage payments. So …
Shelley Erickson on October 12, 2013 at 10:54 am said:
Are you saying we should have known we can not trust our banks? Not to listen to them and make sure we always take a lawyer with us? Took three servicers to tell me this to convince me I needed to listen to the bank I mistook I should trust. Been decades since the people were taught not to trust the banks. Unfortunately the history books dont warn you never to trust banks or politicians to always monitor and bring trusted counsel. Trust no one is the rule now! I have sat with people who paid their houses in full five years before the bank foreclosed on them with false claims and affidavits. Paid in full. Who should they have trusted? They should expect this due to we live in a dog eat dog world of crime and deception. The government is telling you the HAMP program is to help you and the bank is telling you to stop making payments to qualify. You can not even trust the government with the HAMP program that was to foam the runway for the banks not meant to help the people they deceived. http://washingtonexaminer.com/video-geithner-sacrificed-homeowners-to-foam-the-runway-for-the-banks/article/2502982. Once I realized I had been deceived I went flying to an attorney. Never will trust a bank without having an attorney by mty side. I tell anyone looking at purchasing a house never to do it without a trusted attorney with them. Learned my lesson the very hard way.
Sharon on October 12, 2013 at 9:49 am said:
If you are going to quote something, then quote it correctly Bob G. i.e. "Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record." unquote; you forgot the part about "against all claims and demands subject to any encumbrances of record" now in my experience the only one that would leave that part out would be a attorney or banker as the borrower has already acknowledged any "past" encumbrances, this is stating in regards to any "future" claims and demands that are recorded upon the title and that would be "subject" to the standing recorded encumbrances (the day you signed, the protection of their recordation encumbrance" . If you quote, quote the entire thing not simply the words that you want to use in your defense. Attorney's LOVE to quote "parts" of sentences, paragraphs, LAWS and STATUTES….just does not work that way however. Sorry
Bob G. on October 12, 2013 at 11:15 am said:
OK, so just go try the argument in court and let us know how it works. I'm serious. Just try it. If it works, I'll be all over it with you.
Sharon on October 12, 2013 at 11:48 am said:
I plan on arguing that in court, and I will let you know how it works out for me, the lower courts will probably ignore the facts and the law, let them, I can hang with that however the higher the court the more you get, and the lower courts denying me all those arguments and ruling incorrectly only makes it easier to get it to the higher courts and more for them to consider when looking at the lower courts rulings….wala….
and smell the roses. Ok so I make mistakes. Lots of them. Not perfect and never will be. =)
Mike Work on October 11, 2013 at 1:35 pm said:
New letter requesting depublication on behalf of Mortgage Bankers Association filed. Is there a copy available for viewing?
Shelley Erickson on October 11, 2013 at 3:09 pm said:
http://stopforeclosurefraud.com/2013/10/08/letter-to-supreme-court-dated-10713-from-law-firm-morgan-lewis-obo-deutsche-bank-requesting-to-depublish-glaski-v-bank-of-america-n-a-opinion/
The exposure of this crime is new even though the crime has been going on for a long time even centuries. The awareness of the facts are new enough the lawyers are just now seeing case law and hope. So many good attorneys are not going to be able to tell they have successful cases. Once this crime waive become public the long path to prove it and gain case law takes a long time. This is no over night success story here. Not to mention the judges blocking justice. To question the cases won would be futile. To expect more and more cases won in the within the next few years is very probable. We are dealing with organized crime and a bar association that discourages lawyers from protecting homeowners. Judges with conflict of interest doing the ruling in the federal court. NEXT TO NO JUSTICE, the honorable lawyers are breaking ice. The exposure and justice coming from the Appeals Courts and Supreme Courts is exciting and promising. The banksters did not plan on the homeowners getting this far. They are hurting. Even crying out unfair! http://seekingalpha.com/article/1741862-is-jpmorgan-being-unfairly-singled-out?source=email_rt_article_readmore
Catherine Bryan Ibarra on October 20, 2013 at 12:06 pm said:
Our Project ( Kokopelli Community Workshop ) studies and reviews mortgage fraud cases that prevail and those cases that fail and undertakes legal analysis to understand why. If anyone can provide evidence that since 2008, a wrongful foreclosure or mortgage fraud victim; who is self-represented and a non-attorney (pro se litigant) has ever prevailed with their appeal of an unfavorable District Court Ruling; this would be of great interest to our project.
I have reviewed Mr. Hurts comments and associated legal analysis with interest……..
I must comment that I disagree with those who contend that all loans which have been sold to downstream to Mortgage-backed securities stand to be legally reversed. In my opinion this false idea encourages consumers who are financially stressed to invest in litigation instead of making mortgage payments; with three unfortunate results; 1) they inevitably loose their homes 2) they provide instant business to a slew of "securitization auditors" who sometimes take advantage of unwary consumers along with unscrupulous attorneys partners who seek to profit from the housing crises by misleading mortgage consumers whose loans have been sold downstream as to their chances to "unwind their mortgage" in our Courts of Law. 3) this type of frivolous litigation is not only doomed to fail but increasingly overwhelms and prejudices our Courts preventing relief to those millions of mortgage consumers who may be truly be victims of mortgage fraud and/or abusive loan modification fraud.
I would also like to comment that the cases we have analyzed tell us that Florida is a much more encouraging venue for wrongful foreclosure rights than California.
Our statistical analysis tells us that Ninth Circuit Rulings favorable to mortgage fraud victims are almost non-existent since 2008.If you have research that indicates otherwise, we would appreciate the case reference for further study.
Also, will someone explain why the Letters in Response and Opposition to Request for Depublication are NOT showing on the CA Supreme Court Docket for Case #S213814?
Just a guess possibly not posted by the clerk yet Sent the question to Cox.
bobhurt on October 11, 2013 at 2:18 pm said:
The Cox letter seems lucid and sound from a perspective internal to the foreclosure mechanics. But it is ultimately irrelevant from the external perspective of the validity of ANY foreclosure defense. Essentially, all foreclosure defenses for reasons other than a lender's or agent's injury to the borrower at the inception of the mortgage should fail, and eventually do. NOTHING that happens in the assignment of the note has aught to do with whether the mortgagor owes the debt and must forfeit the mortgaged collateral as a consequence of breaching the note. It does not matter to the borrower who receives the proceeds of the forfeiture, and therefore the borrower has no position disputing about the assignment into the trust or elsewhere. THAT remains an issue for the assignor and assignees and taxing authorities to dispute. In the end, Glaski will lose the house as Glaski should. Thus it seems inane to clog the courts with messes like the Glaski dispute over violation of the PSA nullifying the assignment. As I see it, the assignment after the trust closing date remains valid because the legislature has no authority to impair the obligation of the note and mortgage, for the constitutions prohibit it. The trustee assignee simply receives the beneficial interest in the note in a private capacity, not the capacity of the trustee. The non-judicial foreclosure laws in the several states exist to keep such matters out of the courts, and stymieing foreclosure as in Glaski defeats that important purpose to the detriment of everyone, even Glaski. In the end, the depositor will assign or hand the note to an entity who will foreclose with proper standing, and Glaski will lose the house after having wasted tens of thousands of dollars and a lot of time and stress on a pointless legal battle. Seeing the issue in that light, who cares whether the court publishes Glaski or not?
You are obviously a bankers advocate. Or a banker. People have rights and the law is the law. My feelings are the banks are responsible for economic terrorism, therefore they should all be subject to prosecution and failing to comply to CPA laws. Among so much more, But arguing with you is obviously a waste of my time. If the party does not have the authority to represent they dont have the authority to represent they are committing fraud upon the court. Also any court allowing standing by a fraud has no jurisdiction to be ruling. All kinds of complications allowing a fraud to stand in the court room. You make no sense at all. The homeowner has the duty and the right to protect their title.
I advocate kicking banks in the nuts, so to speak, by proving they injured the borrower and then demanding settlement or suing. But the borrower who breaches the note has a legal duty to GET OUT OF THE HOUSE. California's legislature felt so strongly about this that they created a non-judicial foreclosure process based on CONFESSED JUDGMENT of the defaulting borrower. They wanted a simple way for the bank to force sale of the realty to satisfy the debt. Glaski behaved like a BOZO. Instead of getting a mortgage exam, Glaski sued for quiet title. The bank will take the house. I wrote to Glaski to explain this. No response. Glaski will get tossed from the house as Glaski deserves.
The state of Washington has RCW law that makes the debtor accountable to pay the proper party or the proper party is still due the funds when you pay the wrong party.
As to paying the proper party, the mortgage and note and notices pursuant thereto make clear whom the mortgagor must pay. Normally, NOBODY has ANY CONFUSION about whom to pay the mortgage payment.
Bobhurt,
The problem with your argument is that you fail to see the forest for the trees. Sure, the loan originator, assuming he is the real creditor, could just assign the mortgage and negotiate the note to the bank trustee in its non-trustee capacity. But that's not what's happening. The allegation is that the depositor deposited the note and mortgage into the trust, and the trust is the entity plaintiff, by way of its trustee. The bank trustee is not suing in its individual capacity as a national bank, but rather in its representative capacity as trustee. In that case, it has to abide by the provisions of its trust agreement. But according to your logice, the depositor could just negotiate the note to the bank in its individual capacity instead of its representative capacity, and that would be the end of that. So why doesn't it do that?
The answer is simple: No lawfully created REMIC. No tax exemption, no lawfully issued certificates, etc., etc., etc. Go Directly to Jail, Do not Collect $200 billion. And that's why this isn't rolling the way you state it should.
Rather than trying to play lawyer or legal scholar here and elsewhere around the internet, you should actually buy up some underwater mortgages and start litigating them out. Then get back to us with experienced, operational arguments, and not just passive armchair theories.
LIKE! =)
Bob Hurt on October 12, 2013 at 9:45 am said:
Bob G., your answer boils down to tomfoolery. The depositor WILL give (or by now has given) beneficial interest in the note to a person who will reinitiate the foreclosure, and Glaski will lose the house in due course. NOTHING you have written undermines that harsh reality. The US Attorney or State Attorney will have to deal with any criminal matter related to the foreclosure dispute. Glaski has nothing of merit say about that.
I and many never defaulted on our loans. Millions of us were told by the servicer to fall behind on purpose to qualify for the mod. I refused until the third servicer told me to do it. Then after being approved and paying five mod payments the servicier sends me a letter unapproving me telling me the mod payments are partial payments and I am in default. I am among thousands upon thousands. Many more friends of mine were paying their mortgages and the bank misappropriated the funds and claimed default on them. They did nothing wrong. Many defaulted due to the economic harm by the very banks taking their homes. If the wrong party is authourizing the wrong servicer you sure do not know whom you should be paying. Fraud assignments in the millions whom have no authority to appoint a servicer.
You didn't pay because the lender told you to breach the note so you could qualify for a loan mod? That looks to me like excusable neglect and promissory estoppel.
Yes and as a pro se the judge Pechman whom is notorious to war against all attorneys in this state and tiple war against pro se's dismissed my case without due process. As she has done to every attorney for the homeowner here in this state. My first attorney did nothing so I went Pro se and now I have discovered great attorneys in our area. Forced to defend my property against crooks and not being able to find a good attorney with zero case law in our state. Lawyers telling me i did not have enough money to fight the banks that did not care what my income was, and lawyers telling me if they helped me they would be disbarred and the one that took seven thousand down left me in limbo. I have defended my property since the letter unapproving me after paying five modification payments to Chase then being told I was unapproved and the mod payments were now considered partial payments and I was in (manufactured) default. I was just told by a friend his neighbor went to the banks and asked for a refi. He was told they would do a modification not a refi but he has to stop making payments for three months inorder to qualify for the modification and it was only last week this happened. So the banks are still at the same deceptive fraud as we speak. No reason for the banks to change, no prosecution no accountability. Just sanctions of trinket money when the sanctions should be in the billions upon billion or trillions.
Shelly, contact me personally here: http://fe.gd/IlE
Is a note valid when purposely disposed of? The law is the law. The homeowner has the right to protect their castle against theives in this state. When a person is paying their bills and has an income destroyed by the very people defrauding you robbing the contents and the house we have the right in this state to protect our property. Economic terrorism is harm and damage of the worst kind. Not considered by the judges. This is not a natural catastrophe. The homeowners have been harmed by the very institutions manipulating defaults.
Wall Street and the Financial Crisis: Anatomy of a Financial Collapse is a report on the financial crisis of 2007–2008 issued on April 13, 2011 by the United States Senate Permanent Subcommittee on Investigations. The 639 page report was issued under the chairmanship of Senators Carl Levin and Tom Coburn, and is colloquially known as the Levin-Coburn Report. After conducting "over 150 interviews and depositions, consulting with dozens of government, academic, and private sector experts" found that "the crisis was not a natural disaster, but the result of high risk, complex financial products, undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street." [1] In an interview, Senator Levin noted that "The overwhelming evidence is that those institutions deceived their clients and deceived the public, and they were aided and abetted by deferential regulators and credit ratings agencies who had conflicts of interest."[2] By the end of their two-year investigation, the staff amassed 56 million pages of memos, documents, prospectuses and e-mails.[3] The report, which contains 2,800 footnotes and references thousands of internal documents [4] focused on four major areas of concern regarding the failure of the financial system: high risk mortgage lending, failure of regulators to stop such practices, inflated credit ratings, and abuses of the system by investment banks. The Report also issued several recommendations for future action regarding each of these categories.
The Financial Crisis Inquiry Commission released its report on the financial crisis in January 2011.
1 Report findings
1.1 High Risk Lending: Case Study of Washington Mutual Bank
1.2 Regulatory Failures: Case Study of the Office of Thrift Supervision
1.3 Inflated Credit Ratings: Case Study of Moody's and Standard & Poor's
1.4 Investment Bank Abuses: Case Study of Goldman Sachs and Deutsche Bank
2 Report recommendations
2.1 Recommendations on high risk lending
2.2 Recommendations on regulatory failures
2.3 Recommendations on inflated credit ratings
2.4 Recommendations on investment bank abuses
3 Impact and reactions
3.1 Media reaction
3.2 Wall Street reaction
3.3 Legislative reaction
The Report found that the four causative aspects of the crisis were all interconnected in facilitating the risky practices that ultimately led to the collapse of the global financial system. Lenders sold and securitized high risk and complex home loans while practicing subpar underwriting, preying on unqualified buyers to maximize profits. The credit rating agencies granted these securities safe investment ratings, which facilitated their sale to investors around the globe. Federal securities regulators failed to execute their duty to ensure safe and sound lending and risk management by lenders and investment banks. Investment banks engineered and promoted complex and poor quality financial products composed of these high risk home loans. They allowed investors to use credit default swaps to bet on the failure of these financial products, and in cases disregarded conflicts of interest by themselves betting against products they marketed and sold to their own clients. The collusion of these four institutions led to the rise of a massive bubble of securities based on high risk home loans. When the unqualified buyers finally defaulted on their mortgages, the entire global financial system incurred massive losses.
High Risk Lending: Case Study of Washington Mutual Bank
Through a case study of Washington Mutual Bank (WaMu), the Report found that in 2006, WaMu began pursuing high risk loans to pursue higher profits. A year later, these mortgages began to fail, along with the mortgage-backed securities the bank offered. As shareholders lost confidence, stock prices fell and the bank suffered a liquidity crisis.[5] The Office of Thrift Supervision, the chief regulator of WaMu, placed the bank under receivership of the Federal Deposit Insurance Corporation (FDIC), who then sold the bank to JPMorgan. If the sale had not gone through, the toxic assets held by WaMu would have exhausted the FDIC's insurance fund completely.
The report found that WaMu sold high risk Option Adjustable-Rate Mortgages (Option ARMs) in bulk, specifically to the Federal National Mortgage Association (Fannie Mae) and Federal Home Loan Mortgage Corporation (Freddie Mac).[6] WaMu often sold these loans to unqualified buyers and would attract buyers with short term "teaser" rates that would skyrocket later on in the term. The Report found that WaMu and other big banks were inclined to make these risky sales because the higher risk loans and mortgage backed securities sold for higher prices on Wall Street. These lenders, however, simply passed the risk on to investors rather than absorbing them themselves.
Regulatory Failures: Case Study of the Office of Thrift Supervision
The Office of Thrift Supervision (OTS) was cited in the Report as a major culprit in financial collapse, for their "failure to stop the unsafe and unsound practices that led to the demise of Washington Mutual" While OTS identified over 500 deficiencies at WaMu, they did not take any regulatory action against the bank. OTS repeatedly requested corrective action, but the bank never followed through on their promises. The Report also cites the regulatory culture within OTS as an issue that exacerbated the lack of oversight. OTS consistently referred to the banks it oversaw as its "constituents." They favored asking banks to correct problems rather than enforcing regulation, even though the banks rarely followed through on the agreements.[7]
Inflated Credit Ratings: Case Study of Moody's and Standard & Poor's
The case study of Moody's Investors Service, Inc. (Moody's) and Standard & Poor's Financial Services LLC (S&P) exposed a combination of inaccurate readings and conflicts of interest within the credit rating agency community. Due to a lack of regulation, agencies were able to place quantity over quality in rating of securities. Credit rating agencies were paid by Wall Street firms for their rating service. If credit rating agencies were to issue anything less than a AAA rating, they could be run out of business by the Wall Street firms they depended on.[8] In the years leading up to the 2008 crisis, Moody's and S&P rated tens of thousands of U.S. residential mortgage-backed securities (RMBS) and collateralized debt obligations (CDOs). They regularly inflated the ratings, giving AAA grade ratings to the majority of RMBS and CDO securities, even though many were based off high risk home loans. In 2006, the high risk home loans began to fail, yet Moody's and S&P continued, for 6 months, to issue AAA ratings to the same quality securities. After the CDOs and RMBS securities that consisted of these home loans began to incur losses, the rating agencies turned around and quickly began to downgrade the high risk securities. Now saturated with toxic and unmarketable assets, the RMBS and CDO securities market collapsed. Traditionally, AAA rated securities had less than a 1% probability of default. In 2007, the majority of RMBS and CDO securities with AAA ratings suffered losses. 90% of AAA ratings given to subprime RMBS securities originated in 2006 and 2007 were later downgraded to junk status by credit rating agencies.[9]
Investment Bank Abuses: Case Study of Goldman Sachs and Deutsche Bank
The Report cites investment banks as a major player in the lead up to the crisis, and uses a case study of two leading participants in the U.S. mortgage market, Goldman Sachs and Deutsche Bank. The case study found that from 2004 to 2008, banks focused their efforts heavily on RMBS and CDO securities, complex and high risk financial products that they could bundle and sell to investors who did not necessarily know the composition of the product. Financial institutions issued $2.5 trillion in RMBS and $1.4 trillion in CDO securities. They created large trading desks that dealt strictly in RMBS and CDO securities. More alarmingly, their trading desks began to take out insurance policies against the RMBS and CDO securities, allowing them to wager on the fall in value of their own asset. They acted in many instances as an intermediary between two opposing parties who wished to bet on either side of the future value of a security. This practice led to a blatant conflict of interest in the securities market, as the banks used "net short" positions, in which they wagered on the fall of a security, to profit off the failure of a security they had sold to their own client.[10]
The FCIC report generalizes the causes of the crisis, but those generalities require specific proof to apply to a given loan. That's why mortgagors ought to get their mortgages comprehensively examined by a competent professional, so as to find the specific causes of action underlying the loan. I can explain all about that in detail, FREE. 727 669 5511.
Check out my foreclosure related articles at http://lixe.org.
Senator Roger Goodman had told the senate the banks dont know who own the loans, and Stu Hulsman testified there are no authentice notes. See this article. https://deadlyclear.wordpress.com/2013/09/16/mr-potter-and-the-state-of-washington-legislate-no-need-for-original-note-just-take-the-land-bye-bye/
So what? It does not matter who owns beneficial interest in the note. A note indorsed in blank becomes like cash. Whoever has it can collect payments or enforce it.
Deadly Clear on October 12, 2013 at 10:15 am said:
Except if it is allegedly actively trading in a trust in order to get there (securitization) it had some hurdles to overcome and "in blank" is only one of them. To take a negotiable instrument from an Art. 3 to an Art. 9 securities the note must qualify under Art. 8 (aka the "gateway" to Art. 9). Article 8:501(d) says the note must be specifically endorsed and that a holder can collect as an agent if the note is not "in blank" –
This is where I think it gets sticky for lower circuit courts because most local court judges barely understand Article 3. Same applies for attorneys – most of them claim they slept through UCC.
There are so many potholes in the securitization process because this was a "NEW" paradigm in lending. These were not tradition mortgages. These were called NTMs (nontraditional mortgages); however, this was not disclosed to the borrower.
Aside from the fact that these notes were untraditionally sliced and diced, they were never properly assigned to the trusts. There was no meeting of the minds at the time the contracts were forms and there was a ton of non-disclosure. And after that it appears there were material alterations, lack of explicit consent and breaches, so much so it makes it unclear as to whether or not this was even a promissory note. And that's why most of these cases go to appeal – much too complicated for lower courts that deal primarily with petty theft.
I know you hate the securitzation shenanigans, but they have no effect on your obligation to pay your mortgage payments timely or forfeit the mortgaged collateral.
Yes PSA contracts state they can not be left in blank. So any that were not entered into the trust that should have been are stolen. However possibly a thief holding a note like a hundred dollar bill can get a way with cashing it. There again they can not cash counterfeits, which include photo copies with wet stamps and attached allonges when there is all kinds of room on the doc to endorse it. The notes dont exist anymore. Counterfeits are dangerous to cash, They will be caught eventually. The deceit and the lies are public knowledge and evidenced over and over and will take them down.
You got that right and they dont have it only counterfeits. Lost note affidavits are note the notes but hearsay by people whom are not trust worth, and they do have to prove they hold the note that does not exist. One shredded they are invalid. Unenforceable. No one holds them. Just lies.
not so fast on that one Bob, Supreme Court says Fed Law trumps state law and to foreclose they have to own the note AND the mortgage/deed.at the time they file, …not just one and a blank endorsement on the note is NOT sufficient, neither is a MERS assignment of the dot…July 2013 Deutsche Bank v. Heinrich
Bob Hurt on October 12, 2013 at 12:00 pm said:
The Heinrich court's opinion would get overturned on appeal because, according to
http://www.law.cornell.edu/supremecourt/text/83/271
Carpenter v Longan, the note and mortgage are inseparable. Owning beneficial interest in the note constitutes the right to foreclose the note and enforce the mortgage. What a waste of time and resources.
Sharon on October 12, 2013 at 12:28 pm said:
but if you consider that fact that legally they were never "put together", then legally they were never together, always split from the moment of inception, and as such cannot be joined several years after the fact. with fraud and deception……and Bob with your fatalist attitude why do you even bother to discuss this? if case law never changes then we should all just go back to the original cases that are out there, and they support everything that is being (rather trying to be) re-activated today. The cases the past few years PROVE that case law does change, but it takes time, effort and diligence to make it happen, which the banks were willing to do and started long before we realized what was happening. The creation of the "new" case law that has been prevailing these last few years is what is the cancer that corrupts the judicial system…..back to the constitution, back to the law and statutes and not to what these lower judges "think" they have the right to rule on and over because the banks "reward" them for their loyalty. YOU are a dangerous person as you are the ultimate fatalist, chicken little yelling the sky is falling the sky is falling, and you actively work at making others believe you are correct…..the more you convince others to not bother, the longer the banks and the corrupt courts will prevail. Shame on you.. I hope that they are paying you well for the destruction of others. Good bye
Yes and Carpenter V Longan 1872, US Supreme Court, a 130 year old distinguished case law, states the deed can not be separated from the note. Most including my deed of trust were separated from the note. It does not state the note follows the deed of trust or visa versa. It says it can not be separated. The deed of trust on my note was left in the originators name until as late as an alleged transfer took place on January 03, 2013. The note was endorsed into blank and allegedly put into a Duetsche Bank trust. The Duetsche Bank Trust has no record of the note being transferred into the trust until January 03, 2013. The loan was signed in June of 2006. Over six years later. Never in MERS but no where until 2013. WAMU and Duetsch Trust are not the same party. There is no chain of transfer from WAMU to The trust nor to Chase nor to SPS. As a matter of fact the Lawrence Nardi deposition states there never was a transfer on notes or assignments or allonges from WAMU to Chase ever, they simply do not exist. As for the courts in the State of Washington. There is no due process in the federal courts here. It takes going to the Appeals court to have justice in this state. Separation of the two void the note.
Somebody doesn't understand Carpenter v. Longan. The court wrote:
"The question presented for our determination is, whether an assignee, under the circumstances of this case, takes the mortgage as he takes the note, free from the objections to which it was liable in the hands of the mortgagee. We hold the affirmative….The mortgaged premises are pledged as security for the debt. In proportion as a remedy is denied the contract is violated, and the rights of the assignee are set at naught. In other words, the mortgage ceases to be security for a part or the whole of the debt, its express provisions to the contrary notwithstanding. The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity."
Get it? Assignment of the mortgage (to a party other than owner of beneficial interest in the note) becomes a nullity. The owner of beneficial interest in the note ALWAYS HAS THE RIGHT both to enforce the note and to benefit from the remedy in the mortgage security instrument.
Thus, "inseparable" means INSEPARABLE: CANNOT be separated, even if they appear separate or have different beneficiaries on them.
I maintain that an assignment or indorsement in blank of the note to the trustee, if invalid/void as an operation of law with respect to limitations in the PSA becomes an assignment or indorsement to the entity identified as trustee in that entity's individual capacity, and not as the trustee. That's how the Glaski court erred in its opinion. A legislative act cannot impair the obligations of contracts, especially the note and mortgage. That would violate the State and US Constitutions. Thus, an assignment of a negotiable instrument under the terms of the note and mortgage cannot be undone by the legislature. Your mortgage or note clearly states the owner of beneficial interest may sell the note, and both custom and the UCC stand in accord with that principle.
You bark up the wrong tree when you take up a position in opposition to those principles above. NOTHING can substitute for knowing the law. It means what the highest courts of jurisdiction say it means, not what you or I think it means. And you MUST learn how to read and comprehend the law and its interpretations of meaning by those courts.
I don't say those things as a smart-Alec or know-it-all. I say them having had my nose rubbed in my own misunderstandings of law. When you think there is no due process, the first thing you should contemplate is HOW YOU MISUNDERSTOOD the law or rules and WHY the court ruled as it did. For one reason, you are usually wrong if you disagree with the court. For another, only a higher appeal court can unravel your dispute with the lower court. For yet another, appeals courts sometimes get it wrong, and later panels in the same court reverse earlier rulings by that court. That's what I think happened in the Glaski appeal. I have explained above why they opined wrongly, but the bank has no choices other than to appeal or fix the standing issue and resubmit the foreclosure.
@bobhurt
there are limitations to your argument/theory that legislatures cannot impair contracts. if the contract are clearly against public policy, they can certainly be impaired. For example, gambling contracts are not enforceable unless the legislature has so authorized them (Nevada). Moreover, a contract between two people to kill another person is clearly illegal in all states, constitutional arguments to the contrary.
Additionally, the constitutions restrict legislatures from impairing the rights of contracts, not judges. You need to get your nose rubbed in a tad more. Go down to bankruptcy court for a good nose rubbing regarding the sanctity of contracts, particularly as they relate to debtors and creditors. Surrogate courts are another great place to get your nose rubbed.
The key to your position lies in the VALIDITY of the contract. Certain attempted contracts lack VALIDITY, so naturally the proscription against impairment does not apply to them. And then the Statute of Frauds makes certain oral agreements unenforceable, thereby creating a practical impairment based on people's tendency to forget or lie about what their agreements, a lesson we learn well in any marriage. And then, there's the practical side of the performance of a contract made impossible by a turn of events or twist of fate or act of God or force of nature. Bankruptcy courts make provision for them. And then there's the welfare of innocent children who could become the victims of parental contract disputes/breaches, and the welfare of marriage partners who must leave the marriage and break that till-death-do-us-part contract to avoid suffering murder or mayhem or humiliation or mental torture at the hands of the spouse. Courts impair such contracts too. And we have business and national/local economic circumstances that make it impossible to fulfill certain contracts. But all of these circumstances constitute reasonable exceptions. Except for those, courts and legislatures should not impair the obligation of contracts. Of course that's why we have courts of equity and chancery – to settle related disputes FAIRLY.
We're talking about notes and mortgages here, not marriages, etc. Relative to those, the courts will gladly relieve a party of the obligation to perform according to contract if the other party breaches it first or if the contract has a voidable nature because of fraudulent inducement. When people gain a little, but not enough, knowledge about the law, they jump to all kinds of inappropriate conclusions, like misconstruing Supreme Court rulings by claiming federal law trumps state law or the the owner of beneficial interest in the note cannot enforce the mortgage. They will foolishly believe they can win a foreclosure dispute by complaining about lack of standing of the foreclosure plaintiff, or making some securitization-related argument, or whining about the shabby state of the US Money system or fractional reserve lending practices, or vapor money theories, or "the note is my chattel" theories.
Here's my point in all this: in the end virtually (that is statistically) ALL foreclosures go through to completion and the borrower loses the house. Only a short sale or deed in lieu of foreclosure, or loan mod arrangement can avert 10-year damage to the foreclosure victim's credit. All of that remains true UNLESS the mortgagor can find and prove how the lender or lender's agents injured the mortgagor. THAT can provide the mortgagor with a huge negotiation/litigation hammer with which to turn the tables on the bank.
Compare the results here.
#1. WIN THE FORECLOSURE BATTLE. If you fight foreclosure and by some miracle get a dismissal of the foreclosure complaint with prejudice the mortgagor ends up with an underwater loan with a lot of unpaid interest and legal fees on top of it, and the same old house in need of repairs.
#2. WIN THE MORTGAGE BATTLE. If you fight the lender over the torts, breaches, and errors (causes of action) underlying the mortgage and win in negotiation or litigation, the mortgagor gets one or more of these: house free and clear, dramatically reduced loan balance and refi at low fixed interest for 30 years, financial setoff, compensatory damages paid by the bank, lawyer fees and costs paid by the bank, punitive damages paid by the bank.
From my perspective only a BOZO fights the foreclosure battle when an opportunity exists to fight and win the mortgage battle.
One can win the mortgage battle only by gathering up the ammunition for that battle. That requires hiring a competent professional to conduct a comprehensive examination of all mortgage-related documents.
Here's a little more perspective. Any foreclosure defense attorney who FAILS to examine the mortgage for causes of action before answering a foreclosure complaint opens a potential doorway for the client to sue for legal malpractice. Such failure could set the stage for losing the mortgage battle by allowing the statute of limitations to toll on some causes of action.
On top of this the fraud and deception including LIBOR rigged rates breaches contracts.
Kelley Horan on October 12, 2013 at 5:36 am said:
One must not forget this is the crime against Americans http://stopforeclosurefraud.com/2012/03/12/read-the-smoking-hot-banks-intentionally-and-thoroughly-violated-the-law-complaint-usa-vs-foreclosure-fraud/
Advocates to kick the butts of banks, and to belittle the general public harmed by the banks, forced into a default or a fraud default by the harm done by the banking world I am guessing are advocates for the investors. Not that all investors would think this way. To think millions of people decided to get behind on their mortgages or that this is an act of natural causes, is dead wrong. Homeowners and their families are victims of the banks. To think the government created this problem for the banks is dead wrong. The bankers use a revolving door between the White House and the financial institutes to set up the people for the harvest of the wealth. This is a pre designed well organized robbery of the 99 percent.
A quote from a friend I wish you all to remember each day!
"One, standing alone, is a pebble in the banksters' shoe. Several pebbles become gravel, in which gravel is capable of sliding and diverting an object off of it desired path. Many more then become mountains of pebbles, becoming rocks that are impossible for them to climb as the very base crumbles beneath them. A force that CRUMBLES the mountains of injustice we face today, so…..Together we are capable of changing the entire landscape of their world and Ours.
Let's rock their world together and get this landscape changed." -Sharon
The pebbles are beginning to swamp the banksters!
http://justiceleaguetaskforce.wordpress.com/2013/10/12/jpm-hammered-by-massive-9-2-billion-in-legal-expenses-posts-first-loss-under-dimon-takes-1-6-billion-reserve-release/comment-page-1/#comment-4633
http://seekingalpha.com/article/1741862-is-jpmorgan-being-unfairly-singled-out?source=email_rt_article_readmore
After the bank has deceived you they are in breach of their contract and you should not continue to pay on a breached contract.
How did the bank deceive you, Shelley? About what? How does it constitute a breach of contract? Did you get it in writing? In what way does an oral contract become unenforceable? What law or court opinion justifies your breaching your note?
In my experience ( in by far too many cases) high priced attorneys all to frequently ultimately fail to serve their clients interests. Almost like prize fighters who will agree to go down in a certain round they drop the ball. Before giving an attorney substantial (or any money) ask him how many cases he has actually won or settled in the borrowers favor and ask for the case numbers and verify. Don't buy the excuse this information is privileged, law suits are always public information unless the records are sealed for some reason.
Storm Bradford on October 13, 2013 at 3:55 am said:
HERE IS PROOF THE LEGAL ILLITERATES AND SCAMMERS THAT ARE HAILING THE GLASKI DECISION AND WRITING NONSENSE LETTERS TO THE COURT NOT TO DE-PUBLISH THE DECISION HAVE NO CLUE WHAT THEY'RE TALKING ABOUT.
http://www.mortgagefraudexaminers.com/blog/2013/10/here-is-proof-the-legal-illiterates-and-scammers-that-are-hailing-the-glaski-decision-and-writing-nonsense-letters-to-the-court-not-to-de-publish-the-decision-have-no-clue-what-theyre-talking-about/?goback=%2Egmr_4427890%2Egde_4427890_member_5794811139330162688#%21
Catherine Bryan Ibarra on October 14, 2013 at 11:17 am said:
REGARDLESS OF ALL THE ONGOING LEGAL THEORIZING AS PROVIDED BY SELF-PROCLAIMED EXPERTS; as result of our U.S. Court's unwillingness to uphold the law; legal theorizing is not only ineffectual but has become a waste of time!
This conclusion has been generated through our non-profit organization's ( KOKOPELLI COMMUNITY WORKSHOP CORPORATION )RAW DATA: resulting from our seven year screening of literally thousands of mortgage fraud and mortgage fraud abuse cases ( both attorney and self represented) on a case by case basis by qualified volunteer paralegal activists ( and by non-profit I mean public service at no charge to the consumer whatsoever.)
If you should desire to review interesting and informative discussions of the KEY influences that prevent our courts and lawmakers from upholding this country's laws; Please go to http://communiversity.groupsite.com a discussion forum with 249 participating and deeply concerned advocates and activists;
Or alternatively you can just Google my full name: Catherine Bryan Ibarra:
Talk about a breach and deception in every contract with LIBOR rates which is on my mortgage and most likely yours. And the international interest rate effecting every man woman and child on the planet. http://justiceleaguetaskforce.wordpress.com/2013/10/13/doj-said-to-open-criminal-probe-of-fx-market-rigging/
http://www.mortgagefraudexaminers.com/blog/2013/10/here-is-proof-the-legal-illiterates-and-scammers-that-are-hailing-the-glaski-decision-and-writing-nonsense-letters-to-the-court-not-to-de-publish-the-decision-have-no-clue-what-theyre-talking-about/?goback=%2Egde_4427890_member_5794811139330162688#%21
Even assuming, as Glaski insisted, that New York law governs interpretation of the PSA, which it did not because the PSA was under Delaware law, and further assuming that the transfer of Glaskis' loan to the Trust violated the terms of the PSA, that after-the-deadline transactions would merely be voidable at the election of one or more of the parties—not void as Glaski and the illiterates would have everyone believe. Consequently, Glaski, was not a party to the PSA, and did not have standing to challenge it.
This concurs with time-honored principles of contract law. A void contract is "invalid or unlawful from its inception" and therefore cannot be enforced. 17A C.J.S. Contracts § 169. Thus, a mortgagor who was not a party to an assignment between mortgagees may nevertheless challenge the enforcement of a void assignment. A voidable contract, on the other hand, "is one where one or more of the parties have the power, by the manifestation of an election to do so, to avoid the legal relations created by the contract." Id. Therefore, only one who was a party to a voidable contract has standing to challenge it.
It is true that New York Estate Powers & Trusts Law § 7-2.4 states: "every act in contravention of the Trust is void." New York case law, however, makes clear "that section 7-2.4 is not applied literally in New York."Bank of Am. Nat'l Ass'n v. Bassman FBT, LLC, 366 Ill. Dec. 936, 981 N.E.2d 1 (Ill. App. Ct. 2012). Instead, New York courts have held that a beneficiary can ratify a trustee's ultra vires act. See, e.g., Mooney v. Madden, 597 N.Y.S.2d 775 (N.Y. App. 1993) (holding that trustee may bind trust to an otherwise invalid act or agreement that is outside scope of trustee's power when beneficiary or beneficiaries consent or ratify trustee's ultra vires act or agreement); Matter of Estate of Janes, 630 N.Y.S.2d 472, 477 (Sur. 1995), aff'd as modified sub nom. Matter of Janes, 643 N.Y.S.2d 972 (N.Y. App. Div. 1996), aff'd sub nom. Matter of Estate of Janes, 90 N.Y.2d 41 (N.Y. 1997)(acknowledging that a beneficiary may ratify a trustee's ultra vires act if "the ratification was done with knowledge of material facts"); Leasing Serv. Corp. v. Vita Italian Restaurant, 566 N.Y.S.2d 796, 797-98 (N.Y. App. Div. 1991) ("It is hornbook law that a contract entered into by . . . an unauthorized agent, corporate officer, trustee or other person purporting to act in a representative capacity . . . is voidable."); Hine v. Huntington, 103 N.Y.S. 535, 540 (1907) ("We have before this called attention to the fact that the cestui que trust is at perfect liberty to elect to approve an unauthorized investment and enjoy its profits, or to reject it at his option."); 106 N.Y. Jur. 2d Trusts § 431 ("[T]rustee may bind trust to an otherwise invalid act or agreement which is outside the scope of the trustee's power when beneficiary consents to or ratifies the trustee's ultra vires act or agreement.");see also In re Levy, 893 N.Y.S.2d 142, 144 (N.Y. App. Div. 2010) (explaining that "[t]he essence of ratification 'is that the beneficiary unequivocally declares that he does not regard the act in question as a breach of trust but rather elects to treat it as a lawful transaction under the trust'") (quoting Bogert, Law of Trusts and Trustees § 942).
If an act may be ratified, it is voidable rather than void. See Hacket v. Hackett, 950 N.Y.S.2d 608, 2012 WL 669525, at *20 (N.Y. Sup. Ct. Feb. 21, 2012) ("A void contract cannot be ratified; it binds no one and is a nullity.
However, an agreement that is merely voidable by one party leaves both parties at liberty to ratify the transaction and insist upon its performance.") (quoting 27 Williston on Contracts § 70:13 [4th ed.]) (internal quotation marks omitted); 17 C.J.S. Contracts § 4 (noting that "a void contract . . . is no contract whatsoever" and "cannot be validated by ratification") (emphasis added); id. ("A contract that is merely voidable is capable of being confirmed or ratified by the party having the right to avoid it . . . .").
These cases above make it obvious that, under New York law, a trustee's unauthorized transactions may be ratified; such transactions, voidable—not void.
That being the case, if the trustee of the securitized trust can't, on its own, decide to accept these late-delivered notes, then it's clear the beneficiaries can. They can ratify or waive anything they want. Common sense dictates that they can either, accept the notes/mortgages even though they were delivered late, giving the trust power to enforce, but theoretically putting the trust's tax-exempt REMIC status at risk; or not allowing the trustee to accept the notes/mortgages, keeping their REMIC status alive, but denying themselves the income from the notes/mortgages they bought.
Common sense would also dictate that if there are enormous numbers of late-delivered notes/mortgages, does anyone really believe that the holders of these notes/mortgages would rather lose the tax benefits by virtue of it becoming a taxable event, which is highly unlikely because the IRS has failed to take any action so far, or lose the income from the notes/mortgages. Anyone who got out of the third grade can figure this one out.
From Mortgage Fraud Examiners:
Common sense would also dictate that if there are enormous numbers of late-delivered notes/mortgages, does anyone really believe that the holders of these notes/mortgages would rather lose the tax benefits by virtue of it becoming a taxable event, which is highly unlikely because the IRS has failed to take any action so far, or lose the income from the notes/mortgages.
Can everyone on this thread see the point now? The court was wrong in Glaski. Glaski will lose the house if the bank pursues the foreclosure.
A nerve button has been pushed. When the going gets tough the attacks to confuse begin, I ask everyone on this site blogging or watching to carefully separate the true facts from the atacks and do what your heart and reason tell you do do. The tighter the rope the more aggressive the attackers. An important reminder today is the deadline to get your letters to the Supreme Court to oppose the depublishing of the Glaski Case. If this was not a hughe thorn in the banks buttocks one the banks would not be trying to depublish it and two there would not be so many attacks against it. Keep up the good fight through our judicial system.
Thank you Shelley and everyone who continues to stand fast in this battle. The banksters' are worried and as such, having no "legal' standing they want to destroy the resolve of the people through lies and deception. DO NOT GIVE IN TO THEM……the very fact that they are trying so hard to confuse and divide us in our resolve IS all the PROOF that we need to feed our righteous indignation….not let it die. DO NOT BE FOOLED BY THE WOLF IN SHEEP'S CLOTHING.
Write the letters kids, mine is in the mail already….Let the Justices hear the peoples voice loud and clear…..and let the banksters' beware their schemes and tricks are not and will not succeed!
All twelve copies of mine are on their way to the court and all addressed on the case.
Sharon on October 14, 2013 at 2:11 pm said:
All twelve copies of mine are on their way to the courts and all addressed on the case…..go team!
Pingback: Why the Glaski Foreclosure Reversal Means NOTHING and Charles Cox Got It Wrong | Bob Hurt's Blog
Catherine Bryan Ibarra on October 20, 2013 at 1:09 pm said:
Re Mr. Hurts comment; "Essentially, all foreclosure defenses for reasons other than a lender's or agent's injury to the borrower at the inception of the mortgage should fail, and eventually do."
I STRONGLY DISAGREE!
For instance…. a successful wrongful foreclosure litigation may proceed when the servicer violates its contract with the U.S. government to modify the loan under HAMP. Individual lawsuits, a number of class actions and even mass torts have prevailed on this basis.
" Courts have long complained about servicers attempting to foreclose when it appears that no foreclosure is justified." ( See In re Gorshtein, 285 B.R.. 118, 124 (Bankr. S.D.N.Y. 2002) where the court noted three examples of where servicers falsely claimed borrowers were in default and sanctioned the creditors.
" Servicers often have a great financial incentive pushing them toward foreclosure. For example, servicers may be attempting to recover advances or costs for a loan as they are paid first from the proceeds of the foreclosure. Also, servicers may have a conflict of interest with the investor that could encourage them to foreclose on a loan quickly, in that the servicers' parent organization may benefit from a foreclosure." (see Law Professor Kurt Eggert, article : Limiting Abuse and Opportunism by Mortgage Servicers, 15 HOUSING POL'Y DEBATE 753, 756 (2004.) SSRN: http://ssrn.com/abstract=992095.) (also see Why Servicers Foreclose When They Should Modify and Other Puzzles of Servicer Behavior, Servicers Compensation & Its Consequences (2009), Diane E. Thompson, Nat'l Consumer Law Center. http://www.consumerlaw.org/issues/mortgage_servicing/content/Servicer-Report1009.pdf
Also our independent analysis of servicer abuses tells us that a huge number of consumers have been tricked into default by mortgage servicers who lead them to believe the borrower cannot qualify for a loan modification until they stop making monthly mortgage payments under the Obama Plan. Frequently the phoney modification offer has been directly solicited by a telephone call or flyer from the servicer.
In many cases a trial modification is temporarily approved by the servicer; and after three payments are made; the trial offer is withdrawn without explanation and the servicer becomes non-responsive to all further communication. Why???
1)	Because the servicer only needs to prove the borrower made three monthly payments to qualify for it Obama Money
2)	Review of these cases tell us the sevicer finds it more profitable to collect on its default insurance and arbitrarily start rejecting the lower "trial modification" payments and can make even more enhanced profits through the foreclosure fees and fines ( $90,000 to 200,000) available to be added to the non-judicial foreclosure sale price.
3)	The servicer insures its profits by transferring the loan to a new creditor ( investor) without notifying the borrower just subsequent to recording the default
4)	Meanwhile the servicer typically encourages the borrower to keep resubmitting new loan modification applications while the new identified creditor forecloses for enhanced mutual profits.
A loan mod constitutes a renegotiation mortgage, so the principles apply to it too.
Tattoo this on the left butt cheek:
When the lender or lender's agent injures the borrower in a mortgage deal, the borrower has a reason to negotiate settlement or to sue. MORTGAGE ATTACK works reliably. Foreclosure defense doesn't
You may place my response below on your other butt cheek (lol) Mr Hurt:
1. When it has been more than three years since a homeowner's loan was funded; a forensic loan audit may waste of the homeowners time and money because court's typically hold a loan is past statutes of limitations for filing a litigation for the purpose of crying foul; unless A SUCCESSFUL Modification that modifies the contract has been confirmed! ( not trial mod which has been carefully drafted by the servicer's attorneys not to be construed as a true contract!
2. If you choose to invest in an audit; make certain the money that you give your hard earned cash to is licensed as Certified Forensic Loan Examiner with plenty of court experience as a judiciary expert witness, and ask him if his testimony in court INCLUDED in his price?
3. The require your potential auditor to provide you with at least two cases ( including case numbers for verification- this public information not confidential ) where a distressed borrower saved their home as a result of paying your auditor substantial fees? ( In my opinion all auditing firms (licensed or not) who charge substantial fees and cannot show the information they provide has EVER led to a homeowner retaining his home; are clearly predatory)
Catherine:
1. The three year (or other statutes of limitations) might have expired, but it does not expire on fraud until 2 to 4 years after it starts, and it starts when you find our should have found the fraud. And fraud has become rampant in mortgages over the past 15 years.
2. A loan mod is generally an insane option and I recommend against it for a variety of reasons which we can take up later.
3. There is no such thing as a Certified Forensic Loan Examiner because there is no government certification process and everyone who pretends to certify is just another scammer.
4. One need not have court experience to recognize fraud. One needs NO expert witness except when the court cannot understand the evidence, and in the case of provable fraud in the mortgage the documents always show it; the judge and jury can easily understand that evidence, so no expert becomes necessary.
5. You need only one case to prove the methodology:
http://search.incredimail.com/search.php?q=brown+v+quicken+loans&lang=english&source=012051022&u=820155887986626094&a=YAk0kRNDye&cid=1&loc=search_box
More to the point, the examination report is one thing, and what the user does with it is another thing. Some people cannot afford to litigate, some reports show that the user committed bank fraud, some don't show causes of action, some show outrageous causes of action, and in some cases where the lender won't negotiate and lawsuit becomes necessary, the mortgagor cannot find a competent or affordable attorney to take the case. None of these realities have aught to do with the validity of the service. Look at Brown v Quicken Loans links above and understand: this hapless woman took her problems to a competent law firm, the lawyers examined the mortgage and found egregious causes of action, negotiated a settlement which fell through, sued, and ultimately obtained a judgment of $116K compensatory, $3.5 million punitive, and 850K lawyer fees/costs. The case has not finished yet, and I expect QUicken will owe well over $5 million before the dust settles. The house has a value of only $86K. THAT's what the methodology does with a competent examination and competent lawyers.
Mr. Hurt; In my capacity of homeowner's advocate I have personally attended well over one hundred hearings related to claims of mortgage lending fraud. In a number of these hearing's as part of the homeowners evidentiary foundation; the homeowner has called upon an expert witness who provides the court with evidence of his qualification as a forensic loan auditor a who has found evidence of lender misdoings in the course of his examination of the loan documents. In circumstances where the auditor cannot convince the Court of the nature of his background and qualifications the banking industry attorney in opposition easily excludes the auditor's testimony and all the alleged related evidence of mortgage fraud; and naturally the borrower loses his/her case. KCKC research indicates when homeowners pays a substantial fee for a loan audit, they need to Be on Guard and Check Them Out and Know Who They Are Dealing With. Am auditor who cannot establish his track record of solid results in achieving either long-term and sustainable loan modification, or several successful and beneficial legal action against the lender that results in settlement or award is just another predator. In addition to looking at the license records of those who claim to be "licensed" to do forensic loan audits, and asking hard and probing questions of those offering the loan audit services, a borrower considering retaining the services of an auditor should contact the Better Business Bureau to see if they have received any complaints about the person or company offering the loan auditing.
I mean no disrespect with my comments: Whoever provides such services as you described to foreclosure victims has no skill at identifying causes of action, or no clue how to attack the lender after discovering causes of action in the mortgage related documents, papers any judge can plainly see without the aid of an expert to explain it to them. Whoever guides such foreclosure victims as you described MISGUIDES them. You have my email address, so why don't you send me a sample of the exam report one of the foreclosure victims has presented to the court, whereupon the court demanded an expert witness?
Here is the working, bulletproof strategy for foreclosure victims
1. Get the mortgage comprehensively examined by a competent professional 2. If no causes of action, walk from the house with deed in lieu or short sale to preserve credit rating 3. Otherwise demand that the lender correct the causes of action 4. If the lender balks, call in the government regulatory agencies (CFPB, OCC, Freddie Mac, HUD) 5. Sue as a last resort
The mortgage exam I recommend results in a report showing the specific causes of action in the paperwork of the loan or related documents. Any judge can understand that without an expert.
You must be working with some incompetent service providers who have no idea how to do a proper mortgage examination.
Maybe you should call me and discuss this personally. I have emailed you my contact info. In case you did not get it:
Bob Hurt 727 669 5511 Email: http://r.beetagg.com/?48F181
FYI; Over the last seven years I have both consulted and retained over 14 separate attorneys including well known law professor Pamela Simmons who is nationally recognized as a Truth In Lending expert, Professor Kurt Eggurt who teaches law at Chapman University and has testified to the House of Congress as an expert on the national problems of servicer abuses and Mortgage Securitization. The last attorney I retained on contingency was Michael J. Aguirre who prevailed years ago in the famous Cesar Chavez case and who is involved with national suits against Goldman on behalf of the investors they cheated. I have employed the auditors and expert witnesses recommended by the above referenced experts. I suppose Mr. Hurt that your extensive knowledge connections and expertise exceeds that of all these individuals.
I have had crooked federal clerks make my pleadings and evidence disappear instead of properly entering them into the docket, my motion hearings arbitrarily cancelled, and I even had a sheriff come to my house to arrest me on a phoney charge to keep me from showing up at a very critical hearing. Said sheriff actually told my son this happened because; " I had a federal judge who didn't like me! My case involves my claim for 20,000,000 against Goldman Sachs. The District Court was not interested in my genuine evidence that Goldman's attorney recently forged my name on clearly altered and falsified TILA disclosure documents.
I suggest perhaps it is more likely you are naive and inexperienced Mr. Hurt with no real clue as to the multiple and complex way our prejudicial courts are swayed and influenced by banking industry interests!
bobhurt on October 25, 2013 at 12:33 pm said:
Catherine, we can discuss this privately if you like. I don't have your experiences, of course. But I know several attorneys whom I consider Kool-Aid drinkers because they all refuse to get mortgages examined for their clients, and I know they UNIVERSALLY cause their clients to lose their houses after bilking them for months to years $500 to $1000 a month. You cannot expect me to kowtow to their vast experience LOSING when they could WIN if they only used the right methodology.
So the issue boils down not merely to experience, but to experience WINNING, and one needn't have that experience to know how to win and how to lose. I have shown you the Brown v Quicken Loans article as proof of the WINNING EFFECTIVENESS of the methodology I recommend. I don't DO mortgage exams, I don't LITIGATE, I don't NEGOTIATE with lenders, and I don't WIN or LOSE cases. I study law issues, write about them, and educate those readers who call or write seeking my help. I have hosted related seminars, and might do so again.
Just remember: foreclosure is a dispute over breach of contract. Prove the contract lacks validity or the lender breached it first or injured the borrower in some other way, and keep pushing the proof in the lender's and court's faces, TIMELY, according to rules. Most prevail who do that artfully. As to general crookedness you allege in California courts, that is a political issue.
I remind you and others of the obvious: one needn't suffer a snake bite to know snake bites can kill you or make you sick, know how to avoid snake bites, know how to eliminate dangerous snakes, and know how to administer anti-snake-venom medicine. Some people might misinterpret my sense of certainty as arrogance. But generally know whereof I write, and when I discover weaknesses in my understanding, I quickly correct it. So I try to encourage everyone: PUT YOUR FINGER ON THE Snake of the LAW. Those who fail to do that often end up with snake bite.
Catherine Bryan Ibarra on October 27, 2013 at 9:38 am said:
My quick review of Mr Hurt's activism indicates Hurt may provide public service as a strong advocate of Pro Se litigant right; who provides useful case law those individual who seek to file complaints without the benefit of counsel. To some extent I appreciate Mr. Hurts advocacy because in at least 80% of the state of California cases I have reviewed, "Predatory Lending" specialist attorneys find it far easier to make backroom (chambers) deals selling out their clients' interests than to aggressively oppose banking industry interests in our Courts of law.
Mr. Hurts primary purpose seems to be to provide advocacy and information
For example see his site: http://www.leitgebindustries.com/prose_caselaw.htm)
My purpose on the other hand is to provide homeowner's advocacy by ensuring that those who might manage to keep their mortgage current do not invest in audits and litigation instead in the mistaken belief that they can simply make a choice to judicially unwind their mortgage through filing a litigation alleging procedural defects in the loan origination, assignments or chain of of title or use the common "no one can prove they owned my note" legal theory to avoid remitting the balance owed on their mortgage. I hope to assist financially stressed homeowners to only pursue ligation; IF ABSOLUTELY NECESSARY AND WITH THEIR EYES WIDE OPEN!
Catherine, I support your noble motive. I'll help you any way I can to enlighten people about their opportunities and how to avoid becoming a victim of scam lawyers, securitization auditors, loan auditors, and loan mod brokers.
My quick review of Mr Hurt's activism indicates Hurt does provide public service as a strong advocate of Pro Se litigant right; who provides useful case law those individual who seek to file complaints without the benefit of counsel. To some extent I appreciate Mr. Hurts advocacy because in at least 80% of the state of California cases we have reviewed, "Predatory Lending" specialist attorneys find it far easier to make backroom (chambers) deals selling out their clients' interests than to aggressively oppose banking industry interests in our Courts of law. For example see his site: (http://www.leitgebindustries.com/prose_caselaw.htm)
Mr. Hurts primary purpose seems to be to provide advocacy and information; what I question is his practice is advocating Mr. Strom's expensive audits ( from my experience a qualified TILA audit when justified should not cost over $500 ) and it would be reasonable to assume Mr. Hurt is getting a kickback.
My purpose on the other hand is to provide distressed homeowner's with advocacy by ensuring that those who might manage to keep their mortgage current do not invest in audits and litigation instead in the mistaken belief that they can simply make a choice to judicially unwind their mortgage through filing a litigation alleging procedural defects in the loan origination, assignments or chain of of title or use the common "no one can prove they owned my note" legal theory to avoid remitting the balance owed on their mortgage. I hope to assist financially stressed homeowners to avoid this horrible mistake!
Bob G. on October 24, 2013 at 12:27 pm said:
your quicken loans link doesn't seem to load. can u help us out with a viable link source?
Catherine Ibarra on October 24, 2013 at 1:12 pm said:
Very good; I have personally attempted to uphold fraud claims against Goldman Sachs and their individual employees and learned why it is very challenging; my complaint was attorney drafted! I hope you can support the reasonableness of your contention by providing me with -even one – recent ( since 2008) case challenging validity or a mortgage where an individual successfully pleaded fraud against mortgage industry players. (I'm not saying it has never happened just saying my extensive and highly motivated research has not found any such case)The heightened pleading standards for pleading fraud against corporations hold corporate misstatements may not be alleged against a corporate entity and only be charged to one or more corporate officers when specific factual allegations link the individual to the statement at issue, such as a signature on a document or particular factual allegations explaining the individual's involvement in the formation of a document. In light of the Patterson decision, (a securities fraud complaint filed in Minnesota) a federal court must distinguish between defendants and specifically plead the manner in which each defendant made a fraudulent misrepresentation or omission. Seventh Circuit held in Makor, requires plaintiffs to distinguish among those they sue and enlighten each defendant as to his or her particular part in the alleged fraud. As such, corporate officers may not be held responsible for unattributed corporate statements solely on the basis of their titles, even if their general level of day-to-day involvement in the corporation's affairs is pleaded. I have been litigating my fraud case in federal court against skilled banking industry attorneys for almost six years now. (currently in the 9th Circuit ) I am famous locally as the only pro se litigant in southern Cal. to ever keep possession of their home at an eviction (jury) trial where I locked horns with Goldman Sachs' attorney so there is reason to expect I am no dilettante.
bobhurt on October 25, 2013 at 11:25 am said:
Catherine, you'll find the Brown v Quicken article linked here:
*How to Beat Your Mortgage Like It Owes You Money.pdf * http://lixe.org/How%20to%20Beat%20Your%20Mortgage%20Like%20It%20Owes%20You%20Money.pdf
See in this article four links to humongous wins because of fraud:
*How to Solve Your Mortgage and Foreclosure Woes.pdf * http://lixe.org/How%20to%20Solve%20Your%20Mortgage%20and%20Foreclosure%20Woes.pdf
Catherine, I know you are smart, savvy, slick, a smooth operator, an activist extraordinaire, a busy and able woman. I just try to offer encouragement to stick to basic principles and let them guide you. If your lender or lender's agents injured you at the inception of the mortgage, that might have made the mortgage loan void or voidable, so that becomes the very first place to look for opportunities to collect some form of damages from the lender or lender's agents. If you don't have the ability to examine the mortgage and all related documents and find those causes of action, then you should hire a competent professional to do it for you. I have given you the contact information for the only firm I know of with the reliable competence to do the job.
For determining whether fraud exists, you need NO expert witness. For determining the amount of damages, for example if an appraiser overvalued your house, you might need an expert appraiser to review the appraisal and tell the court HOW MUCH the other appraiser overvalued it.
recent suits that prevailed on appeal of wrongful foreclosure issues
FAIR DEBT COLLECTION PRACTICES ACT (FDCPA)
A loan servicer and loan assignee can be subject to the FDCPA if the loan was in default when acquired. Bridge v. Ocwen Fed. Bank, FSB, PDF External Link 681 F.3d 355 (6th Cir. 2012). The Sixth Circuit reversed the dismissal of a lawsuit under the FDCPA against Ocwen, a loan servicer, and Deutsche Bank, which had purchased the loan. The lawsuit filed by a husband and wife, concerning a mortgage on which only the wife was liable, alleged that the defendants violated the FDCPA by attempting to collect payment when it was not in default and by attempting to collect the loan from the husband, who was not an obligor. At issue in the appeal was whether the defendants, who had not originated the loan, were debt collectors or creditors. The FDCPA generally does not apply to creditors. The court concluded that under the FDCPA, a person acquiring a loan or loan servicing rights is a debt collector if the loan was in default when acquired and a creditor if the loan was not in default. Because the plaintiffs alleged that the defendant treated the loan as if it were in default when it was acquired, the court held that the plaintiffs had stated a valid claim. The court also determined that the husband could have a claim under the FDCPA against the defendants for attempting to collect a debt he did not owe because the FDCPA covers consumers who are mistakenly alleged to have owed a debt. The case was remanded for further proceedings.
The Eleventh Circuit rules that the FDCPA can apply in foreclosure proceedings. Reese v. Ellis, Painter, Ratterree & Adams, LLP, PDF External Link678 F.3d 1211 (11th Cir. 2012). The Eleventh Circuit reversed the dismissal of a lawsuit against a law firm under the FDCPA. After the plaintiffs defaulted on a mortgage loan, a law firm representing the creditor sent them a dunning notice and threatened foreclosure unless the loan was satisfied. The plaintiffs alleged that the law firm's communication violated the FDCPA because it contained deceptive and misleading representations. The lower court dismissed the case because it concluded that the law firm was enforcing a security interest, which does not constitute debt collection under the FDCPA. On appeal, the Eleventh Circuit reversed the decision because it determined that the law firm was both trying to enforce a security interest and attempting to collect a debt owed under the Promissory note. For example, the law firm's dunning letter stated: "Lender hereby demands full and immediate payment of all amounts due…. THIS LAW FIRM IS ACTING AS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT." The case was remanded for further proceedings.
Google "Brown v Quicken Loans" It's a West Virginia case – $3.5 million puni., $875K Legal, $116K compens., Brown owes no debt but must give up to $144K of proceeds from sale of house worth $86K to Quicken WHEN Brown decides to sell.
An example of a qualified Forensic Auditor- In City of Los Angeles; is Attorney Andrew Lehman; who is the Managing Member at Certified Forensic Loan Auditors, LLC. (This is not a referral or recommendation just an example.) A review of Andrew Lehman's credential's tell me his testimony would likely be accepted in Court because Andrew is a real estate attorney who studied law at Southwestern College of Law. Andrew is also member of the CFLA.
(see link at http://www.certifiedforensicloanauditors.com) Is Andrew related in some way to the
notorious Lehman Bros. – I just don't know but its a important question (lol)
Why would any judge need Lehman's testimony in a tort or contract breach claim against the lender?? What expertise does he have in appraisals???
Isn't Certified Forensic Loan Auditors just another SCAM company doing fake audits that avail foreclosure victims NOTHING? What credentials does that enterprise have that qualifies it to certify anybody except in how to cheat people out of their hard earned money for a service that does them no good whatsoever, except perhaps in a TILA violation? Who has won a house free and clear or financial compensation using one of CFLA's audit reports?
Again….. when a homeowner invest their hard earned cash a qualified Audit ; they should make certain it is provided by an individual who is a qualified expert witness; An expert who is also an attorney may be considered more qualified precisely because he is also an officer of the Court!
Our project has reviewed the outcome of numerous suits where the homeowner alleges appraisal fraud as evidence of fraud in the loan origination; my observations are two. (1) This strategy CAN backfire!
A homeowner who determines to make an allegation that their loan was based on a fraudulent appraisal needs to be very careful that their opposition does not turn this allegation around and accuse the borrower of fraudulently obtaining their loan by purchase of a bogus appraisal.
If the bank can allege that the homeowner had Constructive Knowledge of a falsely elevated appraisal then the bank may recover damages for the homeowners crime of obtaining a mortgage loan through intentional submission of fraudulent documents supporting the loan; (2) for a homeowner to prove appraisal fraud at trial what is called for is an expert witness with trial experience who is also a licensed auditor who provides the trial Court with a current and retroactive appraisal with comps at the time of the loan; and current comps for comparison showing that the appraiser not only illegally inflated the home value but worked for the LENDER and not for the borrower.! BEWARE! Bank attorneys are very skilled at making this type of claim reflect badly on the homeowner; so by all means consult with and be advised by an expert witness who is also a licensed real estate auditor before bringing this type of claim. ( this should not cost more than $500.00) a QUALIFIED EXPERT WITNESS in southern CA. in John C. Carlson (with 35 years of experience-Carlson's main office is located in Victorville, CA 92395, CA approximately 25 miles North of San Bernardino. ) Carlson has a – Certified Fraud Examiner with a specialty an an expert witness. Caution;like any qualified expert witness Carlson provides the Court with a neutral evaluation of your appraisal for fraud not an opinion expressly generated for supporting the homeowner's interests. THIS IS WHY THE COURT RESPECTS Mr. Carlson's TESTIMONY! (see http://www.jccrea.com/)
bobhurt on October 31, 2013 at 5:16 am said:
Catherine, you have made an incorrect assertion. A mortgage examiner need NOT be an expert witness. I repeat that you have been dealing with incompetent attorneys. Why don't you pick up the phone and call so we can discuss this personally? 727 669 5511
Catherine Bryan Ibarra on November 1, 2013 at 8:06 am said:
Mr. Hurt ; Lets stop all this gamesmanship and get to the point!
To be perfectly frank I interacted extensively by telephone with Mr. Strom arguing these points back in 2009; and still cannot substantiate or verify exactly how and why his audits are worth $2,000! So please prove your point by providing us with a list of cases were can verify in which Mr. Stroms Audits have actually resulted in the borrowers home being saved!
( not random winning cases that have NOTHING TO DO WITH HIS AUDITS!)
Also Please review my comment. I NEVER suggested a mortgage examiner HAD to also serve as an expert witness. I only made the observation that mortgage consumers who hope prevail against banks in our Courts of Law and for that purpose retain the services of an examiner who will produce qualified findings of illegal or questionable lender misconduct should shop around and find the most qualified expert they can; One with a solid record of references from satisfied customers "who actually saved their homes" after paying said auditor substantial money!
(cases must be verified avoid ringers who are simply performing the task of salesmen and getting kickback for doing so. and whose findings court will consider credible. AFTER ALL! Anyone can claim to be an examiner and start charging homeowners for audits; and the housing crises is rife with fraud!
To be perfectly frank I interacted extensively by telephone with Mr. Strom arguing these points back in 2009; and substantiate exactly how and why these audits are worth $2,000!
prove you point by providing us with a list of cases were can verify in which Mr. Stroms Audits have actually resulted in the borrowers home being saved!
My task as an advocate is simply to;
EXPOSE ALL FRAUDULENT PRACTICES ASSOCIATED WITH THE HOUSING CRISES
including (1) lender and mortgage servicer fraud; telemarketers who sell phoney loan mo0difications; crooked attorneys who grandstand to get their names in the news, conduct phoney seminars for the purpose of collecting substantial money from distressed homeowners and HAVE NOT AND CANNOT save a single home, not even their own real property. ( yes Mr. Attorney we know who you are and plan to be exposed) (3) those who charge substantial sums for auditing services; ( like the notorious Property Law Group with impressive big glass multimillion dollar office buildings in several states filled with attorneys) but who cannot show their clients have ever won a single case. (4) those who charge substantial sums to teach homeowners to record frivolous documents at the County Records like Commercial Code Liens or even a creative assignment of the note back to themselves.
My organization in the midst of compiling data for the purpose of statistically documenting ALL THESE QUESTIONABLE PRACTICES that defraud distressed and desperate homeowners of their hard-earned dollars!
So I officially demand that you and your partner ( Mr. Strom) ; verify that his audits have resulted in positive results for homeowners since 2009 or admit you cannot do so!
Bob G. on November 1, 2013 at 8:33 am said:
Catherine…save your breath (and keyboard). This guy is a world class bloviator. You might as well be talking to the man in the moon.
Just For Clarification- My posts here are not made for the purpose of butting heads with Mr. Hurt or for communicating with him or his affiliates;
My comments are made solely for KCWC (see http://communiversity.groupsite.com/beta/discussion/topics/495749/messages) non-profit community-service purpose of consumer advocacy through sharing knowledge and information solely for educational purposes. I have no affiliation nor do i recommend the services of Real Estate Professional Mr. John Carlson. I provide Mr. Calson's name as example of a qualified expert witness; for educational purposes on the basis of observing his competent expert witness testimony as to his retroactive appraisals at appraisal fraud investigative hearings I have attended for research purposes. I clearly and strongly point out that neither I nor my organization recommends any for profit attorney or organization; who charges homeowners for services related to their mortgages no matter how qualified to avoid conflict of interest with our non-profit advocacy. (FYI Mr. Carlson lost his own home to predatory lending issues; and he simply stated to KCWC researchers that there was no issue of appraisal fraud available in his situation.)
Just Today I received the email below from an organization called
Certified Forensic Loan Auditors L.L.C.
which I provide without comment or recommendation solely for educational purposes.
(FYI: I do not recommend Certified Forensic Loan Auditors L.L.C. ; Mr. Strom; or any other auditing service for all the above stated reasons)
content of email communication from CFLA:
Certified Forensic Loan Auditors L.L.C. was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle. Call us today to obtain samples of work product, including Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and to get more information about our Nationally Accredited and Industry Acclaimed "Forensic Loan Auditor Training Certification Classes (3 days). The Nation's Only Certification Training Class for Auditors in this industry!
SEE BELOW- http://www.certifiedforensicloanauditors.com
Read more: http://www.certifiedforensicloanauditors.com/articles/10.13/more-legal-headaches-from-the-mortgage-mess-and-bernie-madoff.html#ixzz2jVycbldh
Under Creative Commons License: Attribution No Derivatives
bobhurt on November 3, 2013 at 5:56 pm said:
Catherine, every client of Mortgage Fraud Examiners (MFE) signs a non-disclosure agreement. So I have no liberty to tell you about their examinations. I know the outcomes of some clients' cases, but I don't attribute any so far to the validity or lack thereof of the mortgage examinations. However, I have read several of his examinations, with permission of the client and Storm, and I can say from my observations that all of those I have seen reveal causes of action that the client could use to attack the lender for injuries. Some have revealed bank fraud by the client. Some have revealed substantial causes of actions that expired with the statute of limitations because of incompetence or malpractice of their attorneys.
But here's the key that YOU seem to stumble over. The Brown v. Quicken Loans case shows what a competent attorney can do with causes of action typical of those revealed in the mortgage examination reports by MFE. That case should satisfactorily prove to you the value of the mortgage examination as a METHOD of obtaining a negotiation/litigation HAMMER for obtaining relief from the lender.
I know of two clients presently working on their cases with causes of action revealed in the exam report. But I would violate their confidence and jeopardize any potential settlement by broadcasting their contact or case details. So I won't do it.
The outcome of such cases depends upon the resolve and resources of the client, and the competence and integrity of the attorney FAR more than on the content of the mortgage examination. A competent examiner can find appraisal fraud, loan application fraud, loan modification fraud, contract breaches, and violation of state and federal regulations. No matter how good the exam or report, an incompetent attorney or irresolute or broke client can ruin the opportunity for a client win.
On top of that, the majority of clients with exam reports showing causes of action can negotiate a satisfactory settlement with the bank, making litigation unnecessary. The vast majority settle to avoid litigation. So your worry about litigation has no merit in such situations.
I'll end my response to your comments by pointing out that if you want to beat a dog, you can always find a stick. It seems to me that you just want to hunt for reasons to express disdain for the services of MFE, and you have no practical basis for doing so. MFE has helped hundreds of clients learn about the evidence of torts, breaches, and errors in their mortgage related documents. Some have obtained favorable settlements they would never have obtained without showing the causes of action to the bank and demanding relief. And I don't know a single professional practitioner who will breach their ethics by giving you testimonials of or from their clients. That would endanger their relationships, expose them to litigation risk, and put their clients at risk and it would constitute utter foolishness.
You might want to direct your suspicion and diffidence at the proven scammers among securitization/loan auditors, lenders, and foreclosure defense lawyers, not at the only truly competent mortgage examiner in America.
I tell you and everyone else with an eye for reading that I as an independent student of law and journalist I owe no allegiance to any law firm or practitioner, I have no contracts for employment or income with any entity, and I am not in business. I tell you that I see profound value in MFE's service to mortgagors, whether or not in foreclosure, I have seen proof of numerous substantial causes of action in several of MFE's exam reports, and I personally believe a competent attorney could use them to obtain financial concessions for the mortgage victims from banks and practitioners associated with those mortgages.
 Bob Hurt
Let me take up your allegations one at time:
Cash. The real money foreclosure victims waste is that spent on foreclosure defense attorneys. They virtually always lose and always sell a loan mod to the client or use a failing strategy to cause the client to lose the house, and bilk the client for the privilege. A temporary dismissal is not a win. A win is financial compensation, cram-down, or house free and clear for lender's injury to the borrower. ONLY a proper mortgage examination has any chance of providing the necessary evidence to effect such a win. NOTHING else has permanent success in compensating the borrower for the injuries by the lender or lender's agents.
ExpertWitness. You NEVER need an expert to explain to the trier of facts what the court can easily ascertain and comprehend from the evidence at hand. A mortgage document examination shows with crystal clarity the causes of action, once someone points them out to the lender or the court. The judge Always has sufficient expertise to understand those. Appraisers are almost NEVER attorneys, so they are not officers of the court. And history shows that officers lie quite often. Experts in foreclosures are needed only to explain how MUCH the appraiser misvalued the property, unless some fool brings up securitization.
Appraisal.
The retrospective appraisalanalysis cannot backfire because the mortgagor does not hire the original appraiser.The lender or agent does that.Furthermore the lender's underwriter bears responsibility for reviewing and endorsing the appraisal.So that leaves the lender and appraiserculpable for appraisal fraud.
Proving appraisal fraud does not require an expert UNLESS it involves intricate calculations or special knowledge.For example, if the comparables lack sufficient similarity, the judge can see that clearly enough to render a fraud judgment.A house in the bowel of a neighborhood has a much lower value than a similar house on a golf course, waterway, hillside, etc.A look at Google Maps can suffice to show the fraud in such situations.
A retrospective appraisal review can easily cost $1000.
Do you receive a commission for sending clients to John C. Carlson?
What is a "Certified Fraud Examiner," who issues the certificate, what education or experience does the certification require, what KIND of fraud?
Deadly Clear on October 31, 2013 at 8:42 pm said:
Wouldn't a retrospective appraisal be difficult in markets where Countrywide, for example, had their own appraisal companies who intentionally skewed the market? That has been brought out in several of the investor lawsuits. All it takes is one or two inflated appraisals in a market to sour everything thereafter. Banks in Hawaii tried to argue that appraisal values are based on what the market is willing to pay. Well, hell yeah… You're gonna give me $1 million home appraisal value on an $800,000 home – ain't that a swell deal?! I'd have $200,000 of equity that I could supposedly tap at any time!
That, in addition to our Maui County tax assessments are also skewed high due its loss of about $42+ million in ARS invested in AFTER the market had already begun its crash… So, to actually try to assess more accurate values you'd have to climb back to the 1990s and begin a gradual adjustment forward and not the 100%-200% quarterly increases we saw in 2006/2007. Is that even doable when the truth is so suppressed?
Yes retrospective appraisal reviews in a time of industry-wide false elevation of realty values has a hard time proving the culpability of the industry. But the Financial Crisis Inquiry Commission report might have some value in educating judges about the problem. Nevertheless, someone who overpaid 30% for a $10 million house probably has the resources to prove industry-wide malfeasance. Or it could be done as a class action.
Look at the bump in the alleged value of a house in Southeast Florida https://www.facebook.com/photo.php?fbid=10152362459769966
This anomaly does not fit with the scarcity of houses or a change in actual value. This shows a problem with the appraisal model. To begin with, the FED lowered interest rates, and many rushed to refinance. Then appraisers never consider income capitalization in home mortgages, and they seem to give replacement cost short shrift. They should consider income capitalization in all appraisals because that keeps market value from dominating unfairly. The fact that USPAP.org guidelines allows appraisers to ignore income capitalization shows a generalized corruption in the entire home appraisal standards and practice.
It seems to me that a competent law team could take the appraisal industry to task in court over that. But what appraisers would admit they had cheated home buyers for decades by ignoring important factors in appraisals?
For reference here I provide the qualifications of the auditors who reviewed my case and my loan documents (who you have causally labeled as inept crooks)
Law Professor Pamela Simmons
Attorney at Law, since 1992
Mortgage Lending Law
Bar Admission:
Lincoln University School of Law, San Jose, California, 1992 Juris Doctorate
Honors: Outstanding Graduate Award
Law Review: Editor, Lincoln University School of Law Review
Major: European Law Studies
Major: Mass Tort Litigation
Classes/Seminars Taught:
Professor of Law, Secured Real Property Law, Lincoln University, San Jose, CA
2006 ABA 17th Annual Real Estate Symposium – Protecting Borrowers from Predatory Lenders and Lenders from Predatory Lending Laws – April 2, 2006
2008 ABA 19th Annual Real Estate Symposium – Subprime Mortgage Meltdown: Turning Down the Heat, Washington D.C
The American Bar Association Section of Real Property, Probate and Trust Law and the ABA Center for Continuing Legal Education 90-Minute Teleconference and Live Audio Webcast March 20, 2007 Protecting Borrowers from Predatory Lending
Santa Cruz County Housing Expo – Mortgage Fraud, April 21, 2007.
Law Professor Kurt Eggert Chapman University School of Law
Is Director of the Elder Law Clinic in Orange California
his specialty of law is
Legal and Equitable Remedies
Legal Research and Writing
Depositions/Discovery Complex Litigation
Law Professor Kurt Eggert Expertise is in providing Legal and Equitable Remedies for Elder Financial Abuse
Below is a Brief History of Kurt Eggert highly respected Articles and related testimony to Congress:
Foreclosing on the Federal Power Grab: Dodd-Frank, Preemption, and the State Role in Mortgage Servicing Regulation, Chapman Law Rev. (2011)
The Great Collapse: How Securitization Caused the Subprime Meltdown, Connecticut Law Review (2009); This Article builds on existing criticism of securitizing subprime loans and argues that one of…
What Prevents Loan Modifications?, Housing Policy Debate (2007)This article describes the barriers to preventive servicing for securitized residential loans and assesses predatory servicing.
Limiting Abuse and Opportunism by Mortgage Servicers, Housing Policy Debate (2004);
This article discusses the opportunistic and abusive behavior of some servicers of residential mortgages.
.In 2007 Professor Eggurt Testified before the House of Congress on 'Subprime Mortgage Market Turmoil: Examining the Role of Securitization' (2007) and before the Senate Subcommittee on Securities, Insurance, and Investments, April 17, 2007,
In 2003 Professor Eggurt Testified on Securitization and Predatory Lending in a Hearing on 'Protecting Homeowners: Preventing Abusive Lending While Preserving Access to Credit' (2003.) His 2003 Congressional Testimony warns of the dangers of securitizing subprime loans. Officially defining "predatory. lending.
Catherine, those credentials mean nothing in view of the reality that every attorney has a bachelor's degree and Juris Doctor degree, and many suffer from substance abuse, corruption, crookedness, and incompetence. And California has its fair share of corrupt judges. The foreclosure defense industry attracts crooked lawyers and related practitioners like manure attracts flies. One only rarely finds someone with the integrity, law knowledge, and litigation competence of Storm Bradford of Mortgage Fraud Examiners. Show me a professor with over 700 criminal trial acquittals to his or her credit over the past 35 years or a history of having performed hundreds of comprehensive mortgage examinations over the past 7 years. Storm Bradford has those credentials and none of the people you mentioned can hold a candle to him in his areas of specialty.
Foreclosure defense DOES NOT WORK to save a house from foreclosure or bring financial compensation to the mortgagor. The reason should seem clear to you. Foreclosure sales occur as a contractual remedy for the mortgagor's breach of the valid contract. But an invalid contract becomes subject to declaration of its void or voidable nature, and proves an injury to the mortgagor that might have resulted in substantial damages. Therefore, it has become colossally important for mortgagors to find such injuries and prove such damages. If they do, they can negotiate a settlement or sue the lender and receive compensation and legal fees/costs. Banks' lawyers know this, so they encourage settlements to avoid litigation that will expose them as crooks and embarrass them.
By contrast, foreclosure defenders simply waste the client's money by bilking the client for cookie-cutter pleadings that fail to bring the client relief or remedy. THey merely drag out the foreclosure process. Most of them commit legal malpractice because lenders or their agents have cheated or otherwise injured 9 out of 10 mortgagors, and the lawyer's failure to examine the mortgage causes the the client to lose the house.
I don't know what competence your professors have exhibited in the realm of mortgage attack, but I assure you they will have had ZERO wins of compensation without a competent mortgage examination first, and NO financial wins at all from foreclosure defenses alone.
Catherine, it seems to me that you have set out to denigrate Storm Bradford and Mortgage Fraud Examiners by complaining when he does not provide customer case histories and testimonials to gratify you. You have yet to identify a single flaw in the strategy Storm uses because it contains NO flaw. It is the ONLY thing that reliably gives mortgage victims a tool for beating the snot out of crooked lenders in settlement negotiation or lawsuit. Stellar proof of the viability of his methodology lies in the result of the Brown v Quicken Loans case. The law firm Bordas and Bordas won upwards of $5 million for the client because of the torts, breaches, and errors they found when they examined the mortgage, and because they litigated it properly. You simply cannot fault the mortgage exam as the ideal means of gathering evidence, or the litigation as a means of forcing the culprit to compensate the mortgagor for the injuries. It's that simple.
Mr. Hurt…would you please tell us about your legal experiences and credentials. It's hard to take you seriously without knowing something about your legal background.
Why don't YOU start, Bob G.. First identify yourself fully, and then tell us about your credentials and qualifications.
MBA, Wharton. Pro Se litigant as a principal for 22 years. All close friends are attys for over 30 years. Work with them weekly on various projects and strategies. Have been in appellate courts 4 or 5 times. Beat Wells Fargo on a mortgage case at both the trial and appellate levels. Presently have JPMorgan and Deutsche Bank on the run in two NY cases. W-L record over 80%. Even on cases that I've lost, no cash left my pocket. In virtually all of those cases the adverse party paid me to stop and/or go away. Have qui tams and whistleblower actions pending at the federal level.
Okay, Pal…you're up.
http://bobhurt.com will give you the basics. Law studies since 2000 in income tax issues, litigation practice, adverse possession, mortgages/foreclosure Research project 2006 Loyalty Oaths in Florida (http://bobhurt.com/articles/law%20-%20Loyalty%20Oaths%20in%20Florida.pdf). See articles at http://bobhurt.com/articles and http://lixe.org and http://bobhurt.blogspot.com. I study law issues and write articles and guide people to practitioners I trust when they call me. I do not charge money for anything I do. Nobody to whom I have given free guidance has complained against me with respect to that guidance, as far as I know. I maintain a public presence, and do not hide.
I treat others with love and respect as a rule, and avoid those who don't treat me that way. I have no qualms about reporting as scammers those service providers who cheat or mislead their clients. In particular, I believe foreclosure defense attorneys, securitization auditors, and most loan auditors sell essentially worthless services to their clients. And, most belong in jail.
Oh, and if you are a foreclosure defender, please tell us the number of clients for whom you have won the house free and clear, a cramdown to the present value and refi at the going rate with no balloon, or compensatory and punitive damages. If your answer is ZERO, please explain why anyone should care about your related legal theories.
As to me, please don't shoot too quickly. I'm just the messenger. I don't INVENT the news.
Law Strategist Proves Glaski Panel & Cox wrong:
Click to access Law%20Strategist%20Proves%20Glaski%20Panel%20&%20Cox%20Wrong.pdf
http://bobhurt.wordpress.com/2013/10/19/charleston-judge-in-heinrich-foreclosure-dismissal-misconstrues-carpenter-v-longan/
Mr. Hurt:
I have gotten one house free and clear of a Wells Fargo mortgage. I presently have JPM and DB on the run in 3 cases.
Now you owe us a tell-all of your credentials and litigation experience. Are you going to do the honorable thing and show us your bona fides?
As for your blog, it is clear that you do not know the law. And I think that we have been through this before.
The notes are being assigned to the trustees and the trustees are bringing the foreclosure actions in the name of the trust. Now if the originator could just negotiate the note over to the bank trustee in its capacity as a national bank, and not in its capacity as trustee, don't you think the dealsters would be doing this by now? But they're not, are they?
They claim that they are transferring them over to the trust so that the deal principals don't go to jail for securities fraud. As for your silly arguments that the court got Glaski wrong, your arguments are the ones that are wrong. One does not have to be a third-party beneficiary to challenge an unlawful contract action. And there is no way a trustee is going to round up the majority or all of the certificateholder investors that existed in the past to ratify certain ultra vires acts that occurred in the past. And the present certificateholder investors have no power to ratify such acts that would adversely impact the prior and former certificate holders. If I were a major investor in a deal when $50 million in notes were transferred to the trust by an ultra vires act, and the IRS stripped the trust and its investors of their tax exempt REMIC status, imposing double taxation and a 100% tax penalty on the $50 million in prohibited transactions, I would be suing the players that caused my damages…even though I was no longer an investor and party to the PSA. And tax counsel would not provide the required opinion that such ultra vires acts would not adversely impair the taxable status of the REMIC trust.
If you were a licensed attorney, Mr. Hurt, I would assume that the only bar exam that you ever passed required a cover charge and 2 drink minimum.
Now provide us with your legal and litigation credentials, sir.
Bob. G on October 23, 2013 at 1:30 pm said:
Mr. Hurt,
Couple of other things I forgot to mention re my background…
1. 16 years working for a $100+ billion public pension fund in the area of investment planning and accounting, the last of those three years being responsible for the investment accounting of the fund's $7 billion mortgage backed securities portfolio.
2. Twelve years litigating my own family trust actions in surrogate court in NY.
And you, sir, pray tell us what you've been up to and what you've accomplished over the past 20 years, so that your credibility can be established with respect to the subject litigation matters at hand.
Clear to *whom* that I don't know the law? RELEVANT law, that is. I believe you did allege some related point once. What came of that? Did you suppose I'd wilt or wither and slither away from the shadow of your knowledge? I didn't.
As for Glaski, we have the reality that the appeals court screwed up royally, not only by proclaiming NY law the controlling law, but also by interfering with the assignment of the note in the absence of any complaint by a party of interest, specifically the trustee or beneficiaries of the trust or other parties to the PSA. NONE complained that I know of. The NOTE is the controlling law, and the maker agreed the lender could sell the note. Assuming that fact, the legislature has no authority to declare the indorsement in blank invalid. A note indorsed in blank and HANDED to the trustee still functions as a bearer negotiable instrument. The trustee operates in a personal capacity (bank) and in an official capacity (trustee). Two solutions exist. The transfer to the bank becomes valid personally but not officially. The bank still has the bearer instrument in hand. READ THE UCC. The bank, as holder, may negotiate it and enforce it. PERIOD.
Take note that courts around the US, including in California, have disagreed with Glaski by upholding the foreclosure in identical circumstances.
Here's the reality I deal with every day. People call me complaining that they face foreclosure after buying a loan audit or securitization audit, or blowing thousands over months or years on feckless foreclosure defenders, and now they face eviction. Today for the first time someone called me to tell me he did not face foreclosure and had no problem paying the mortgage but believed the lender had cheated him and wanted to get to the bottom of it.
Usually if people get a mortgage examination done, they have to face other onerous tasks like writing to the lender to demand correction of their grievances, negotiating for something "fair", or finding a lawyer to take the case who won't charge them a kilobuck just to read the examination report, or who actually has a clue what to do with it.
Maybe you are precisely the whizbang lawster to whom I should send such prospects.
Maybe you understand that I don't fancy myself a practitioner. But I do educate and strategize how to win against crooked lenders. I have concluded it makes little sense to fight a foreclosure of a valid mortgage because traditionally the lenders win. If the mortgage lacks validity because of underlying torts or breaches, that justifies a good back-alley fistfight, so to speak, with the lender.
But I don't promote litigation except as a last resort because of the psychic and fiscal toll it takes on the mortgagor. I promote negotiation and settlement instead.
Maybe I should send people needing such help to you. Do you feel competent to handle them?
As it happens numerous investor groups have sued the trustee for cheating them by false bond ratings.But I don't know of the IRS taking away REMIC benefits for putting assets in the trust after the closing date, do you?Let me know if you find any instances of that and I'll modify my opinion.With no such instances WHY WOULD the beneficiaries care if the assets breached the closing date?Show me some law on this if you have it.I'm all eyes.
FYI, I am not an attorney and I have not attended law school or taken a bar exam.I readily admit I have much to learn about law. Apparently you do too.Regardless of that, I congratulate you on your wins.Free and clear of a mortgage is indeed a peachy win that you should hire airplanes to write in the sky.
When you denounce my understanding of the law, realize that I have simply summarized the position of other courts in my disagreement with the Glaski panel opinion, and I have explained why.Your gainsaying me does not make me wrong.We have different opinions, just like the panel courts in California do.Only the Supreme Court of California or the US can resolve the difference.I assert that the Supremes will agree with my analysis, and I have read nothing from you to demonstrate otherwise.Calling my arguments silly does not reflect well on your otherwise gentlemanly qualities.Since other courts agree with me, you effectively call them silly as well.Not cool at all, Bob G.
Kay on October 23, 2013 at 3:58 am said:
Wow Bob, impressive resume I must say. I am new to all of this so could you explain to me what you mean by "Pro Sec litigant as a principal for 22 years".? I was a little confused by this. Principle what? the principle homeowner? It must be nice to have close friends that are attorneys' for so long and to be able to "work with them weekly on various projects and strategies" as you state, would be very helpful in locating the correct laws and rules that are so tedious yet important. Do you ever have any one challenging your statements of "I offer this of my own free will and personal knowledge, etc. etc. etc. that are made on declarations and affidavits in your cases?" Just asking as I am challenged constantly. An impressive W-L record of over 80%, how many case have you litigated as you must own a lot or real estate to be involved so deeply….as a Pro Sec litigant. I find it interesting as I do good to keep up with only 1 property, but that is just me. So you mention NY, is that where your properties and yourself are located? I have never been to NY but hear that it is beautiful in the fall with all the colors. Cudos' to you for being so proactive and successful !
@ Kay
email me and i will respond privately. GRG @ gmail
sorry…GRG2615 at gmail
Kay on October 23, 2013 at 12:40 pm said:
Bob I tried, both email addresses you gave me were returned as undeliverable???? you can send it to my email address…Talking.To.You@bendbroadband.com if you want, other than that I am not sure what to do.
My own credentials and history for the record: Like many others who participate here; my family's personal battle with banking industry corruption; led to my political activism and resulted in my current role as volunteer director of of a public benefit non-profit who for the purpose of increasing public knowledge through compilation of Statistical Data. Has screened a large number of mortgage fraud cases filed in three counties of California. For the purpose of compiling statistical data; Kokopelli Community Workshop ( see related news article: https://thecoastnews.com/2009/02/community-group-works-on-new-home/)
Kokopelli Community Workshop Project staff spent the months from January 2008- January 2011 interviewing multiple pro se (self-represented) plaintiffs and also for comparison interviewing those who used the services of attorneys. The purpose of our ongoing statistical analysis is to support our projects' December 2011; Federal Grant Application, and its supporting budget and proposal, applying for funds to be allocated in 2012-2015 to assist San Diego County, Orange County and Riverside County property owners potentially facing loss of their homes due to the housing crisis with legal advocacy where screening indicates that they are victims of commercial real estate lending fraud and/or deceptive lending and unfair debt collection practices and may remain without legal representation for financial reasons. Our project has recently submitted grant proposal requests that pilot projects should established in three counties of Southern California for experimenting with teams of screening volunteers acting as liaisons between property owners facing wrongful foreclosure for the purpose of accessing their legal claims against their creditors through pre-screening. Our project if funded will connect litigants with strong to medium predatory lending claims with individual attorneys and law firms whose services will be paid for and funded through our anticipated grant funding. Between 1500-2000 volunteer eviction defendants were interviewed in each judicial division of San Diego County, in addition, between 600 -1500 volunteer eviction defendants were interviewed in both Orange and Riverside Counties. Volunteer eviction defendants were screened on multiple parameters creating rigorous data collection, including data on case location, alleged amount in controversy, and defendant issues contested e.g. creditor violations of CA foreclosure statues, procedural violation in the Trustee Sale; lender fraud in violation of the Consumer protection Act, e.g. TILA and RESPA, case outcomes and types of disposition rendered. Our statistical analysis of over a thousand final dispositions rendered reviewing those of (self-represented) eviction defendants revealed that pro se defendants are unanimously defeated regardless of their particular allegations of fraud or procedural violation. MY PERSONAL STORY OF CORPORATE TERRORISM. I grew up in California in the coast resort city of Carlsbad, where my parents built a unique adobe home on two acres of property they purchased in 1950. The property was owned free and clear by by parents from 1950-2005. My father passed away in 1991; and subsequently a scheme to leverage my 87- year old mother's valuable coastal property, involved involuntary building inspections ( of her 50 year-old home) at the requests of the would be lender; resulting in multiple very expensive code violations used to induce her to accept an unfavorable loan. The facts that the lender actually requested the building inspections was all unknown to us until we conducted discovery of City of Carlsbad records. My elderly mother was a victim of a commercial predatory lending swindle in which she in fact- never actually received any actual loan money. My subsequent investigation into the activities of the loan officer and his associates uncovered other local properties leveraged by the method and same players. All these facts were reported to the local District Attorney and the FBI. These facts did NOT keep the bank from foreclosing! My records show that Goldman Sachs Bank aka MTGLQ Investors L.P. was fully informed of that my mother was a victim of an elder financial predatory lending swindle but NEVERTHELESS ruthlessly pursued foreclosure followed by a quick lawsuit for summary eviction to force her out of her home. At the time of her eviction trial, my then 87-year-old mother was ill; in bed and just of the Hospital after undergoing a major surgery. In full knowledge of her medical condition and having been advised of all the facts of the swindle; Goldman Sachs Bank AKA MTGLQ Investors L.P. went for a judicial default judgment for possession of her home on the basis of her non-appearance at the hearing.
I was shocked and sickened to learn that one of the wealthiest banks in the world would so callously seek to quickly profit through an 87-year-old lending fraud victims tragic circumstances. Kokopelli Community Workshop Project five year ongoing screening of loan fraud cases and resultant compilation of evidence clearly demonstrates that local San Diego authorities are just not inclined to investigate or prosecute Real Estate Fraud especially predatory lending cases. Amazingly local research of close to a hundred outright bunko and elder financial fraud cases in Southern California reveal a shocking story of close to 100% loss of homes and property subsequent to lending fraud as both our Federal and State Courts in Southern California are notoriously unsupportive of Real Estate Fraud victims no matter how flagrant and abusive the crime. This type of abuse is ongoing as more and more folks become financial stressed and these predators know they have a clear playing field. After working full-time for more than six years as a full-time homeowners advocate; I can assure you that once a default is initiated by the creditor in Southern California – loss of property is inevitable regardless of any issues of fraud as the mortgage servicing and banking industry lobbyists and their attorneys are very powerfully involved in motivating judges to stay on their side banking industry interests. A year previous to the foreclosure itself my mother and I filed a lawsuit against the creditor and its servicer attaching her open criminal complaint with the San Diego Department of Real Estate Fraud. Goldman Sachs responded by passing ownership of our home to their Investor partner ; MTGLQ Investors L.P. who is just a division of Goldman like the Servicer Litton Loan Service and forclosing. At one pre-trial hearing Goldman Sachs aka MTGLQ Investors L.P attorney said they sympathized and understood that my mother's predatory lending situation was a terrible tragedy and very unfortunate situation but then stated this tragedy simply was "NOT THEIR PROBLEM!" My families' tragedy along with my professional skills as a scientific researcher Led to my ongoing career as an activists and an advocate. Our five year ongoing screening of parallel predatory lending swindles and resultant compilation of evidence clearly demonstrates That California law enforcement authorities is just not inclined to investigate or prosecute Real Estate Fraud especially predatory lending cases.Amazingly local research of close to a hundred outright bunko and elder financial fraud cases in Southern California reveal a shocking story of close to 100% loss of homes and property subsequent to lending fraud as both our Federal and State Courts in Southern California are notoriously unsupportive of Real Estate Fraud victims no matter how flagrant and abusive the crime. This type of abuse is ongoing as these real estate predators know they have a clear playing field.
Storm Bradford on November 4, 2013 at 2:04 am said:
Mr. Hurt, you're clearly wasting your time trying to have a rational discussion with Ms. Ibarra.
She has made so many comments that are not remotely correct I don't know where to start.
Firstly, I have never "interacted extensively by telephone" with Ms. Ibarra, I don't know who she believes she spoke with, but it certainly wasn't me.
Secondly we don't provide forensic loan audits or securitization audits, they are known worthless services. http://www.veteranstoday.com/2012/03/27/beware-of-the-latest-foreclosure-rescue-scam-securitization-audits/
Thirdly, most homeowners and anyone knowledgeable in the prevention of foreclosures are beginning to understand that those holding themselves out as foreclosure defense attorneys have no clue and are committing malpractice. http://www.veteranstoday.com/2012/03/21/mortgage-fraud-examiners-warns/
Fourthly, she made a comment that Andrew Lehman of CFLA is a real estate attorney, he doesn't even practice law, so much for her investigatory prowess.
Fifthly, Its a proven and documentable fact that the homeowners or their attorneys that use our methodologies/services get multimillion dollar awards, free & clear properties, and/or every settlement imaginable almost on a daily basis.
Lastly, anyone that doesn't understand that a foreclosure is an allegation the homeowner has breached the contract, and the only methodology for combatting the homeowners breach is to attack the contract is either a moron that can't be made to understand, or because they do understand, but admitting it proves they've been wrong all along and have been misinforming everyone with some sort of nonsense they've been spewing.
Dear Mr. Bradford:
I can't speak to many of the issues that you raised in your post, as I wasn't a party to them nor do I have any personal knowledge of them.
However, I would think that if you want people to subscribe to your services in substantial volume, then you ought to disclose just exactly what it is that you're offering for your fees. The "Black Box" argument doesn't really cut it.
Indeed, if I thought that you had something of value to offer, I would subscribe to your service as well as refer others to you. So if this is just the fraudulent acts alleged in the Quicken loan case in W. VA., these acts are now matters of public record, and are unpatentable, if you will.
So I think that we would all appreciate your showing us what's behind the curtain so that we can make an informed decision as to whether we wish to purchase your offering.
Well, for hundreds of people, the black box approach does cut it. I see no point in explaining details of a trade secret to prospective clients when competitors intend to use the information to lie to prospects or denigrate the process. Lawyers and Doctors don't do that, so why should any other professional?
If MFE's service didn't please people, you'd read scads of complaints on-line. That's proof number 1. Storm's own professional litigation experience has stretched over 35+ years. You won't read any complaints about that except from prosecutors he skunked in over 700 acquittals. He knows what it takes to win in court, and he provides the requisite proof in his mortgage examinations reports. I can attest to that because I have seen several of them.
As to whether a client can use the information in the report to get a house free and clear or win financial compensation for injuries by the lender, that depends upon the skill of the negotiator or litigator, and frankly, many attorneys haven't the requisite skill to litigate.
Remember that this thread started from the ballyhoo about Glaski's appellate win, and descended from my denigration of that win as pyrrhic because the right plaintiff in order will resubmit and win the foreclosure in due course. In my comments I condemn foreclosure defense as a bad and failing strategy that unjustly enriches malpracticing attorneys who never bother examining the mortgage for causes of action that justify an attack on the lender or lender's agents for cheating the mortgagor at the beginning of the loan. I have said that a competent examiner's comprehensive mortgage examination provides the only reliable tool for beating banks at the mortgage or foreclosure game, and that it applies to 90% of all home mortgagors, whether or not in foreclosure.
I have received no end of guff for my assertions, but I have proven the validity of the methodology of mortgage examinations by showing off the Brown victory over Quicken Loans with a 3.5 million dollar punitive damage award. And now you and Catherine still want to take me (and now the chief examiner himself) to task, IGNORING the fundamental realities.
NOBODY owes Bob G or Catherine proof of the method or its workability, nor of MFE's particular competence and integrity. You have obtained all the proof I'll give on the subject.
If you want to find out, put up the money, get a mortgage examined, and read the report for yourself. From what I understand, Catherine could use the service herself, PERSONALLY.
Bob Hurt, Concerned
*Bob Hurt* *Blog 1 2 3 **f t *** 2460 Persian Drive #70 Clearwater, FL 33763 Email ; Call: (727) 669-5511 Law Studies: Donate Subscribe Learn to Litigate with Jurisdictionary
Bob G. on November 6, 2013 at 12:23 am said:
Mr. Hurt
1. I was addressing my comments and requests to Mr. Bradford, not you. I was unaware that you were his agent or spokesperson. My apologies.
2. Everything anyone needs to know about your or Mr. Bradford's "services" is in your response to my post. If folks wish to purchase Mr. Bradford's "services" based upon your testimonial, then they will get what they deserve, I guess.
3. In my opinion, the fraud that I see with you guys jumps right out at me. If you had hundreds of successes, then you wouldn't keep touting only 1 case, i.e., Quicken Loans. Quicken is a matter of public record, as would be your other "hundreds" of successes. Point us to the public record.
4. Quicken was unique, involving a unique set of facts and circumstances. They are not likely to be found in a significant number of other cases affecting folks here. But I could be wrong, of course, and will stand corrected if you can prove up your assertions.
5. Your criticisms of the Glaski court and decision are unavailing. According to your logic, since Glaski was not a party or third party beneficiary to the contract or trust agreement, he lacked standing. But Glaski was a third party beneficiary. Without the trust, Glaski's loan would not have been funded. The trust's servicers and trustee were also empowered per the PSA to modify Glaski's loan, to forebear legal action against Glaski, to act as Glaski's agent with respect to the escrow and payment of property taxes, and to ensure that Glaski's property was properly hazard insured. All the foregoing made Glaski a third party beneficiary with respect to the trust. And of course Glaski could always have called his stock broker and bought a certificate of beneficial interest for several hundred dollars, making him a party to the PSA, and providing him with the standing that you claim is necessary for him to challenge the mortgage and note assignment to the trust in violation of the PSA. Additionally, it should be noted that Glaski was not some guy walking in off the street trying to enforce the terms of a contract that he was not a party to. Glaski was an involuntary third-party obligor who was dragged in off the street, and that alone should give him as much standing as a junior lienor. Would you claim that a junior mortgagee, not a party to a PSA, lacked standing to challenge the bogus assignment that jeopardized its mortgage interest in a foreclosure action?
6. NY trust law. EPTL 7-2.4 says "void" not "voidable." If the legislature meant voidable, they could have said so. They did not. Also, EPTL 7-2.4 was copied verbatim from RPL 105, which no longer exists. 7-2.4 became effective 9-1-67, so I would argue it negates any common law decisions to the contrary prior to that date. But there are a number of decisions since then that subscribe to the voidable as opposed to the void interpretation. An application to a federal court has been made requesting that the federal court certify the question to the NY Court of Appeals. We shall see how that plays out.
7. See Matter of Pepi 268 AD 2d 477, (2d Dept 2000). Banks lose because the actions taken were against the terms of the trust and were void.
8. NY trust law is slightly more complicated than most folks, including you, appreciate. NY trust law recognizes express trusts, implied trusts, impressed trusts and constructive trusts. We are concerned with express trusts, or trusts that are expressed in a written document. There is a further categorization into lifetime trusts and indenture trusts. A lifetime trust is your garden variety estate planning trust, consisting mostly of noninvestor family members. The indenture trust is what we are concerned with. Rules that apply to lifetime trusts, do not necessarily apply to indenture trusts. No case that I know of other than Erobobo has addressed the void vs. voidable issue with respect to indenture trusts.
9. You state that at best, a mortgagor gets a dismissal without prejudice, and that the bank just comes back and refiles its foreclosure action correctly and gets the house anyway. That's just what I'm looking for. A dismissal without prejudice means that the bank, its servicers and their attorneys lacked standing to bring the action in the first place. If the mortgage loan was in default at the time it was acquired by the bank, then the bank and all its aforementioned agents are debt collectors pursuant to the FDCPA, and can be sued in federal court with a jury for violation of the FDCPA. The fact that the bank can come back with proper paperwork at a later date is of no moment. When they initially brought the foreclosure action, they had no right to do so, and that is all that is necessary to trigger the provisions of the FDCPA. That's where the big money is, in my opinion.
P.S. Have you found in any PSA where it says that the certificateholders can ratify an ultra vires act of the trustee? If so, please give us a citation. Thank you.
I stand corrected on a couple of issues and cite them herewith.
Apparently, Wells Fargo has appealed the Erobobo decision. In the New York Appellate Division, Second Department, the appellant has 6 months in which to perfect the appeal. (Each appellate department has its own rules. The Third Dept., for example, allows for 9 months for an appellant to perfect. Why the differences? Cuz this is NY, and everybody's ego is the size of the Empire State Building.) The date for Wells Fargo to perfect is December 26, 2013. No briefs have yet been filed.
Apparently, four other non-NY courts have been motioned seeking to have the question certified to the NY Court of Appeals, as to the application of EPTL 7-2.4 with respect to RMBS indenture trusts.
It will be interesting to see how this plays out.
bobhurt on November 13, 2013 at 10:09 pm said:
Thank you for that feedback, Bob G. It is interesting to watch the ebb and flow of legal theories in foreclosure cases. Debbie Focht acted pretty upset with me when I pronounced Pyrrhic her win in Florida's 2nd DCA. But the panel said it reluctantly reversed and remanded to undo the foreclosure because they knew she'd get a few more months of use of the house before the right plaintiff refiled and won the foreclosure. And the panel certified the question to the Florida Supremes: "Is standing really necessary in such cases?"
This shows a serious problem in Florida's foreclosure process. EVERYBODY hates the predatory lending that destroyed equities and believes the courts should punish the banks for it. But then everybody also hates the idea of deadbeats getting their houses free. And every judge knows the foreclosure sale inevitably must happen for valid mortgages. So that leaves us with only one chance to beat the bank: prove that the lender or lender's agents injured the borrower, typically at the inception of the loan. And I maintain that such injury occurred in at least 90% of the family home mortgages over the past 10 to 12 years.
That's why I suggest that Glaski and Erobobo were anomalous rulings by judges with a screw loose. Those rulings prove that some judges badly want to beat the banks up. Imagine what they will do when some clever lawyer brings them a decent case in which a mortgage examiner found numerous causes of action against the lender.
Mr. Bradford…P.S.
Can you provide us with references and citations to these multimillion dollar awards, free houses, etc., etc. that you claim attorneys get when using your methodologies? Would be useful to be able to talk to your references.
bobhurt on February 9, 2014 at 5:40 pm said:
Quicken Loans ordered to pay $3.5M in mortgage case
Bob G. on February 9, 2014 at 6:31 pm said:
Bob, you and Bradford appear to be one trick ponies with your sole quicken loan case. Why won't you address the issues that I have raised in my posts?
And quicken had a unique set of facts and circumstances, otherwise u would be citing a host of similar cases and wins.
johngault on February 7, 2014 at 2:08 pm said:
Bob Hurt said:
"As I see it, the assignment after the trust closing date remains valid because the legislature has no authority to impair the obligation of the note and mortgage, for the constitutions prohibit it."
What the heck, Bob? First of all, the legislature doesn't try to exercise "authority to impair the obligation of the note and mortgage". What legislation does is allow a vehicle, a trust, a preferential tax treatment AS LONG AS (as a seemingly well-seasoned researcher, you should be well aware of the import of an "as long as") certain rules are followed. This is a privilege, not a right. The rules say what they say. If the rules for that privilege say a tardy assignment is void, then that's what it is. That doesn't impede, necessarily, the obligation or enforcement of the note and mortgage, as you say. It simply means it won't be to or by a trust. But, if what I posit below about security interest is accurate, as to whom is going to go after a Glaski, the security interests of the trust have to be considered. imo.
I noticed elsewhere you cited some material by Levitin, who says a bk trustee could try to claw back loans from a bk entity when there were no transfer to a trust. He opines that could find investors with unsecured claims. I don"t agree with that fwiw, because one who paid for but didn't receive a note imo has an equitable interest as well as a security interest. He also has a security interest in the collateral instrument. However, it could changes things, long and short, for that investor who is without the collateral instrument if the loan contract spells out security first and or if the state statutes demand security first. What it would change is the rights of the investor against the note maker, but not necessarily against the seller who didn't transfer and then filed bk; in the case of trusts which must adhere to trust law, since transfer is not possible post-cut-off, the remedy for non delivery seems like it would be a refund. But that, too, may not be possible with a trust (not to mention taxes are due on monies paid for an asset not belonging to the trust). And again, the security interests of one who paid for but didn't receive a note have to be considered. I believe a party who pays for a note has a security interest in both the note any any collateral. How that shapes up for tax-preferential trusts is unknown to me. It may be first impression in courts, but chances are those involved with trusts know the answer and it isn't good – for them.
bobhurt on February 8, 2014 at 10:46 am said:
John, you make interesting points. I have such fun interacting with smart people like you.
I write to remind you that the whole basis of an investment in a securitization trust lies in promissory note (security) and the backing for the security, the mortgage. The note only has validity if something binds the mortgagor to pay. Nothing in the securitization trust or process alters the obligation of the borrower to pay the note, and if the borrower does not pay, then the mortgagee (the trustee, by name or position) may foreclose according to the mortgage, and force a sale of the mortgaged property to discharge the debt.
If the assignment to the trustee becomes invalid by law, that only affects the trust, but not the trustee's ownership of the note in a personal/private non-trust capacity. The law cannot rightly prevent the assignment by one person to another when the note prescribes it. And, bear in mind that an indorsement in blank http://www.law.cornell.edu/ucc/3/3-205 allows the indorser to hand the note to anybody, and the recipient, or even a THIEF, may enforce it http://www.law.cornell.edu/ucc/3/3-301, even if the original gets lost or destroyed http://www.law.cornell.edu/ucc/3/3-309.
So, when a foreclosure plaintiff seeks to enforce a valid note by foreclosing and forcing a sale of the property for the purpose of discharging the note and recovering money, the courts, or the trustee, will always eventually enforce the note. The spurious and frivolous securitization arguments will always ultimately fail, as I proved with abundant court opinion citations in this article.
America has only one methodology for dealing with foreclosures effectively: DON'T. Instead, attack the lender or lender's agents for contract breaches, tortious conduct, and legal errors underlying the mortgage. When you attack the validity of an invalid note, the court must give redress of the injury.
You might extrapolate an axiom from this demonstrable reality. Every foreclosure defense lawyer is a charlatan for bilking clients for the privilege of ultimately losing the house to foreclosure sale INSTEAD of examining the mortgage and attacking the lender for the underlying causes of action. To find those causes, one must examine the mortgage comprehensively and professionally. Those (including lawyers) unable to do that should call me, Bob Hurt, 727 669 5511 for FREE discussion of all the issues and how to examine that mortgage the right way.
John, if you want really to help mortgage and foreclosure victims with your blog, send them to me. I'll improve your reputation because I always explain precisely and completely to those who call me, and I do it at NO cost to them (FREE). I don't charge money for anything. I simply enjoy helping people whom banks and other lenders have abused.
If you want to do them a disservice, keep harping on securitization nonsense which virtually never wins in court, and then only wins temporarily. Foreclosures within the statute of limitations of valid, breached mortgage notes ALWAYS go through to completion. You can beat the banks only by proving the lender or lender's agents injured the mortgagor.
Burn this into your brain:
Fight the foreclosure of a valid mortgage and LOSE.
Fight the lender or agents for a flawed mortgage and WIN.
Deadly Clear on February 8, 2014 at 1:33 pm said:
The assignments are not just "invalid" – they are fraudulent documents. No clean hands in any court where those documents are filed. As the Phoenix cases develop we'll begin to see just how much fraud has been committed, because as Phoenix stated – none of the NTMs were assigned to the trusts – therefore, were the trusts even legal – and if not – how can the trustees even exist? I think Wall Street would like to have the Trustees survive a dead trust… but legally that is a question for the courts.
Moreover, the facts are coming forward that the homeowner's "1003 application", his credit and promise to pay were sold to the investment banks before the homeowner signed the NTMs – which would make these "securities" transactions with no disclosure to the homeowner that this was not a traditional mortgage – but a Wall Street securities scheme.
IMHO – We'd be seeing more of this entire scheme if the investors weren't so culpable – look at who "owns" the top tranches – the big boys… and the pension fund investors didn't even bother with due diligence and got caught with their pants down – or hands in the cookie jars. The investors couldn't scream about the fact that the loans weren't assigned to the trusts – because they needed liquidity – and I'd be willing to bet they were promised liquidity along with their Triple A ratings and insurance.
Eventually, smart attorneys will expose the fact that all of this scheme was patented – and it was a seamless automation of securities sale transactions – before the quasi-mortgage loan documents were even signed. And who was at the helm of these "new" business innovation USPTO patents? Why Queen Fannie and King Freddie, of course.
John, you seem determined not to "get it." NOTHING (not even fraudulent filings) will derail the foreclosure of a valid mortgage for long. Courts across America keep on ruling to that effect one way or another, with rare exceptions. Yes, lack of standing can delay the matter, but eventually the foreclosure goes through. Besides, the fraud did not hurt anybody, DID IT? Who's complaining? NOBODY. Fraud is NOT fraud unless it results in injury AND DAMAGES. So, get over it.
You have only ONE WAY way to beat the banks: get the mortgage examined, then attack the lender and lender's agents for underlying causes of action.
PERIOD. Try to burn that into your noggin, will you? NOTHING ELSE WORKS RELIABLY.
You would be right except for the context involved here.
No, I'm right ALWAYS with only a few exceptions that I won't get into. As I showed in the article I cited above, which you apparently ignored, even California state and federal courts repeatedly deprecate Glski in favor or a prior opinion, calling Glaski a "minority opinion". Even though the trial court returns a ruling favorable to Glaski in the second round, he will never get his house back because the holder of the note will simply resubmit the foreclosure and take the house. Furthermore, the appeal panel might reverse their own opinion if the matter comes back to them for adjudication after the trial, now that they've had a chance to read senior wisdom on the subject. Courts everywhere opine that NOTHING that happened with a valid note matters when someone in authority presents it for enforcement, and courts opine, unlike the 5th District in Glaski, that robosigning and bad assignments only matter to the parties to the assignment, not to a foreclosure court or trustee.
Bob1365 on February 8, 2014 at 11:30 pm said:
What article are you talking about?
Why securitization auditors should hang their heads in shame.
"Frankly, the Court is astonished by Plaintiff's audacity. Instead of providing the "short and plain statement" of facts required by the Federal Rules of Civil Procedure,Plaintiff requires the Court to scour a poorly-copied, 45-page "Certified Forensic Loan Audit" in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff's attempt to incorporate such an "audit," which is more than likely the product of "charlatans who prey upon people in economically dire situation," rather than a legitimate recitation of Plaintiff's factual allegations. As one bankruptcy judge bluntly explained, "[the Court] is quite confident there is no such thing as a 'Certified Forensic Loan Audit' or a 'certified forensic auditor.'" In fact, the Federal Trade Commission has issued a "Consumer Alert" regarding such "Forensic Loan Audits." The Court will not, in good conscience, consider any facts recited by such a questionable authority." Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013)
Courts Deprecate Glaski – Only parties to the PSA may enforce it, etc.
California Court follows well-established case law in ruling – borrower cannot challenge validity of loan securitization
Nina Huerta, Regina J. McClendon and Stephanie Chambers
Glaski v. Bank of America, N.A., 218 Cal. App. 4th 1079 (July 31, 2013) – "a borrower may challenge [a] securitized trust's chain of ownership by alleging the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust's closing date."
Diunugala is the first case coming out of a California court to expressly reject the California Court of Appeal's reasoning inGlaski and deem Glaski unpersuasive. While not binding authority, other State and Federal Courts in California may followDiunugala as persuasive authority and similarly follow well-established case law holding that a borrower lacks standing to challenge an allegedly invalid assignment of a deed trust.
The Glaski opinion contradicted Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497 (May 17, 2013 – borrowers lack standing to challenge the validity of an assignment to which they are neither party nor beneficiary. "As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, [plaintiff] lacks standing to enforce any agreements, including the investment trust's pooling and servicing agreement, relating to such transactions."
Gomes v. Countrywide Home Loans, Inc., 192 Cal. App. 4th 1149, (2011) – California non-judicial foreclosure statutes do not "provide for a judicial action to determine whether the person initiating the foreclosure process is indeed authorized."
Diunugala v. JP Morgan Chase Bank, N.A. (Case No. 12-cv-02106-WQH-NLS) (October 3, 2013) – "[we find] the reasoning in [cases such as Jenkins and Gomes] to be more persuasive than that in Glaski." Even if the Glaski court correctly decided the case, a plaintiff cannot assert a claim based upon an allegedly ineffective assignment of a deed of trust without alleging facts demonstrating that the deed of trust was not assigned in any manner or alleging resulting prejudice to the borrower.
Do you see now? I don't just make this stuff up. The legal theory in the GLASKI appeal opinion is OVER in California. The courts will keep on ganging up against that opinion, as has virtually every court with a related opinion in America.
johngault on February 8, 2014 at 11:05 am said:
"This shows a serious problem in Florida's foreclosure process. EVERYBODY hates the predatory lending that destroyed equities and believes the courts should punish the banks for it. But then everybody also hates the idea of deadbeats getting their houses free."
You may be right about the (current) inevitability of most foreclosures, but as to this particular comment, I'd add that one is illegal and one isn't. The bad actor has to bear the brunt of his misdeeds, and since there aren't any hidc's these days, the current claimant can bear that brunt, and if he doesn't like it, he can go after the bad actor. The finanical institutions involved in predatory lending SHOULD be punished for it. It was their mandate not to make predatory loans and they, among players, were and are charged with that responsibility.
Bob G. on February 9, 2014 at 6:34 am said:
Ok, I found your article and read it. Notably absent from your case cites are any citing to New York authority. So where are they? Other than Erobobo, I know of none.
I think you need to step back and look at the big picture here. I don't believe that most folks are saying that they don't owe on the mortgage note. They are saying that they don't owe to the plaintiff that's showing up in court suing them on the note. And they are saying that the plaintiff lacks standing because of a failed securitization, per NY EPTL 7-2.4. The Erobobo court is the only NY court to apply 7-2.4 to an indenture trust. And as you know, Wells Fargo has appealed the decision to the New York State Appellate Division, Second Department. In my opinion, this was a strategic blunder on the part of WF. If the decision gets affirmed, it will cost WF and other trustees in NY millions (perhaps hundreds of millions) of dollars in tossed foreclosures. It would have been better to have left this holding at the trial level.
WF filed its appellant's brief on Dec. 23, 2013. I've read it. It's good, but not so good as to win necessarily. Thereafter WF and Erobobo stipulated to filing the subsequent briefs as follows: Erobobo's respondent's brief to be filed by Feb. 11 and WF reply brief by Feb. 28.
The long string of court cases that you cite in support of your position remind me of the long string of cases regarding civil rights and abortion prior to Roe v. Wade or Brown v. Board of Education. Sometimes it takes decades for courts to come around to seeing things differently.
In any event, your position as I continue to understand it is that the mortgagors do not have standing to challenge the failed securitizations because they are not signatories to the PSA nor are they third-party beneficiaries. But doesn't having their mortgage loan funded by the trust make them a beneficiary of the trust? There seems to be no question in the minds of courts that the certificateholders are third-party beneficiaries entitled to enforce the terms of the trust. (In actuality they can't, because the PSA bars them from so doing, but that's a discussion for later.) But consider this: the two absolutely indispensable parties to the trust are the investor/certificateholders and the mortgagor/borrowers. Absent either of these two parties, there is no trust. The signatories to the trust (originators, servicers, custodians, trustees, sellers, depositors) are deal principals to each other, but merely agents of and to the real parties, i.e., the mortgagors and investors. The entire trust structure is designed principally as a fee generation machine for the internal deal principals, and the investors and mortgagors sole purpose is to fund the fee generation.
Ok, so back to third-party beneficiaries. I contend that the structure of the trusts does indeed make the mortgagors third-party beneficiaries. The NY Court of Appeals, the U.S. Supreme Court and the Restatement (Second) Contracts describe what is necessary to confer third-party beneficiary rights upon a non-signatory. The description fits the mortgagors to a tee. Further, if you contend that only the certificateholders have such status, the foregoing argument notwithstanding, then the solution for the mortgagors is very simple. They can just go to Fidelity's website, open a brokergage account, enter their tranche CUSIP, pull up the bid-ask prices, and buy 1 certificate.
See Fidelity's CUSIP entry section here: https://www.fidelity.com/fixed-income-bonds/overview.
Third-Party Beneficiary problem solved.
Now you are correct that the PETE can enforce the note against the mortgagor. You've stated that the trustee could just enforce the note in its non-trustee status. But that is impossible, because the trustee specifically claims in the PSA that it is acting in its capacity of a corporate trustee and not as a national bank. So this would beg the question of how did a mortgage note that was supposed to be securitized, going from originator, to seller, to depositor, to trustee, end up in the hands of a non-trustee PETE? How did it not get into the trust as was warranted and represented to investors in the documents filed with the SEC and that were conveyed to investors via wires and U.S. mails? You see the problem with your argument, Bob? They can't do that without exposing themselves to securities fraud, tax fraud and RICO liability. That's why they don't do what you suggest that they could do to solve their problem.
One other thing. The notes were never transferred late to the trusts. Never. If they were, they'd be subject to the REMIC 100% Prohibited Contributions Tax. See IRS Form 1066, Schedule J, Part III. So what would be the purpose of that? It would make no sense, would it. Think about this Bob. There are thousands of these trusts, and hundreds of thousands of late transfers of the notes to the trusts. Yet there is not even a single case where the IRS applied the 100% Prohibited Contributions Tax, is there? Now why do you suppose that is? I will tell you. It is because the notes were never late transferred.
The trustee typically gets .0075% of the trust's value as an annual fee. So on a trust that started out with $1 billion, the trustee received only $75,000 per year as its fee. Now that the trust is only valued at $200 million (Erobobo trust), WF is only getting $15,000 per year, or $41 per day. WF is not even going to get out of bed for $41 a day, let alone assume any trust action liability or federal tax fraud liability. If the notes that were allegedly transferred into the trusts late were omitted from the annual Form 1066 REMIC tax return, the trustee would face a federal tax fraud felony charge. Not going to happen.
So why do the trustees say in foreclosure actions that the mortgage notes were transferred to the trusts late? Simple, because they know that they can con judges and the other parties with your argument: a non-party or a non-third-party beneficiary cannot challenge violations of the PSA.
On a final note, if you feel so strongly about your arguments, why not submit an Amicus Curiae brief to the Erobobo appellate court?
Bob G, I don't have a dog in the securitization hunt, and I don't care what the parties to it do. People who get injured and suffer damages because of another's breach of legal duty have the right to sue the injurer. Simple as that. Home mortgagors have no such right because nothing that happens with the trust injures them, and they are not a party to it or beneficiary of it. I don't know where you got the idea that investment in the trust funded the loan, but it does not matter WHERE a lender gets money. If you borrow and agree to repay it or forfeit the collateral, you must abide by that agreement.
I don't know why you say almost ANYTHING to avoid that reality. Yes, I find the points you raise vaguely interesting, but I feel MOST interested in helping mortgagors find out how the lender and lender's agents injured them so the mortgagors have any kind of chance at all of obtaining redress in negotiated settlement or in a favorable court opinion and damages award. To me, all the rest of the stuff is utterly irrelevant to our discussion.
By the way, the Brown v Quicken Loans opinions don't stand alone as proof of the critical importance of mortgage examinations to winning damages awards. But it isn't my job or choice to prove to you what a little of your diligence in the news media will accomplish.
On top of that, you have not shown ANY case in which a securitization argument has won ANY MONEY for ANYONE other than the lawyers bilking clients to fight that losing battle. I think you should jump for joy and hoot and holler at the discovery of the MONUMENTAL Brown v Quicken win and others like it that PROVE UNQUESTIONABLY the validity of the mortgage Exam methodology. Why don't you? What are you waiting for? Cat got your tongue? Somebody tie you to your chair?
Take note also that even on the rare occasions where the borrower keeps a house in spite of foreclosure of a valid mortgage, that house is usually trashed from years of neglect and the borrower still owes repayment of an underwater loan that will endure for 20 years unless discharged in bankruptcy. The Government has declared as a scam any bankruptcy to avoid foreclosure, just another delaying tactic to feed lawyers.
Where is your moral outrage over the legal malpractice foreclosure pretender defender lawyers who bilk their clients for monthly payments over a period of years while KNOWING the client will lose the house? Why don't you rant and rave at them, knowing that a mortgage exam would give them a hammer for beating the bank into submission, and they just ignore it?
STAND UP AND BE COUNTED, Bob G. If you want to save people from foreclosure whom the lenders or their agents have cheated, why don't you advocate comprehensive mortgage exams for EVERY MORTGAGOR?
johngault on February 10, 2014 at 8:01 pm said:
My dearest Mr. Hurt re: your comment on the 8th to me. I really don't want to get it? First of
all, i am not the author of the comment to which I believe you responded. I won't argue
that, disregarding any SOL for certain allegations, it may be of value to attack the mtg.
'Having said that', when I have more time, I will in fact respond to your response to
material I didn't write as well as your response to that material!
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sandrashultz805 on May 14, 2016 at 7:50 am said:
Reblogged this on sandrakblog.
Beware on December 19, 2019 at 11:51 am said:
SCAM:Certified Forensic Loan Auditors, LLC, Andrew Lehman, and Michael Carrigan Compliant by CFPB:
https://www.consumerfinance.gov/policy-compliance/enforcement/actions/certified-forensic-loan-auditors-llc-andrew-lehman-michael-carrigan/