News and Announcements

Does the Trust Exist? Did it Ever Exist?

Posted by John, Thursday, September 27th, 2012 @ 9:30am

  • Does the Trust Exist? Did it Ever Exist?

    Posted on September 24, 2012 by Neil Garfield

    http://livinglies.wordpress.com/2012/09/24/does-the-trust-exist-did-it-ever-exist/

    Based upon the latest info coming into us I have no doubt that in most cases there was no trust and that no court would find that there was a trust. There is no trustor, beneficiary, funding, assets, bank accounts or even the appearance of being managed by the trust departments of banks whose trust departments fill multiple floors of their buildings. The trust was an excellent sham (even I fell for it for a long while) when in fact, nobody was moving the money through or even with reference to the trust or its “holders.”

    I would challenge whether ASBC 1234-1 exists and therefore whether there could be holders. Despite your previous statutory requests for information there is no trail of MONEY in which the loan was originated with the ASBC name attached to it and no assignment where money was transferred. On the contrary, it appears as though they are claiming ownership by a trustee that was never funded and may never have actually been created where, for example, US Bank is a self appointed “trustee” with no duties, powers or obligations. Note that US Bank like Deutsch Bank does not administer this trust through its “trust department” indicating that there was nothing to exercise control over.

    Also the PSA and the note do not state the same repayment terms. Hence, the basic ingredients of a written contract — offer, acceptance of the offer and consideration are all absent. That means there is a common law duty to repay, the terms of which might be that it is a demand loan, meaning the total is due now, but it is not secured by a mortgage — particularly in this case where you didn’t sign the mortgage.

    The point needs to be made that the investors are suing US Bank in dozens of cases stating the same thing. That they have no way to enforce notes and mortgages with fatal defects, where the notes do not properly recite the terms of the actual money transaction, name the wrong payee, lender and beneficiary. The fact that the investors refuse to attempt to enforce what they contend, as we contend, instruments that are fatally defective is NOT a license for a stranger to the transaction to claim collection or mortgage enforcement rights.

    The chain of participants in this sham securitization have failed to show a nexus between the money and the documents. Instead they have papered over the fatal defects with more defective, fabricated and forged documents. This in fact worked initially as the debtor was unaware of the reality of the transaction in which her name was being used by these chain participants in order to trade, sell and hedge the loan that they had neither funded nor purchased.

    If they received money on these trades or sales, then they did so without accounting to this court or the investors as to their receipt, which would decrease the amount due to the creditor and hence decrease the amount due from the borrower — albeit with the possibility that that payors might have a common law contribution claim against the debtor that is also unsecured.

    But these parties — AIG, AMBAC as insurers, Fannie Mae and Freddie Mac, and other counter-parties to credit default swaps, insurance, and federal purchase bailouts are suing the investment bank who received this money under false pretenses and failed to apply it against the loan balance.

    Like the investor-lenders, they have concluded that they were defrauded by false origination claims, with fatally defective underwriting and fatally defective instruments, exacerbated in this case that the debtor never signed the deed of trust. finding that the debtor had not signed the deed of trust and that the deal was not yet complete, they intentionally forged a signature badly in a way that was easily perceived by the debtor and easily corroborated by the handwriting expert.

    Like the investor-lenders they allege that there is no way for them to collect on this fake chain of documents from anyone other than the investment bank that sold them on the idea that the investment bank was the owner of the mortgage bonds and hence was the owner of fractional shares of the loans, when nothing could have been further from the truth. These cases are being settled with hundreds of millions of dollars in each suit corroborating the fact that the investment bank received money under false pretenses and failed to account for the money properly, to wit: that the loans might well have been paid in whole or in part but not reflected on any statements sent to the investor-lenders.

    My information, especially where US bank is concerned is that there is no bank account, brokerage account or any other account held by “U.S. Bank as Trustee for ASBC” You are basically saying that they filed for the wrong creditors because they didn’t due their due diligence. Either another pool is the proper claimant or no pool is the claimant, in which case it would be up to the Master Service to provide a nexus between individual investor-lenders and this loan. They can’t do it because the funds were commingled in a single account with the “holders” of other pools who were similarly fooled. These investors thought they were getting a mortgage bond issued by a pool that owned loans or would have acquired them before the cutoff date and if acquired would have done so with the required signatures, delivery, payment, and assignment recordable and recorded in the county records.

BOA’s Recontrust Thrown Out of Washington State as Substitute Trustee

Posted by Ari, Tuesday, August 21st, 2012 @ 12:23pm


  •  

    BOA’s Recontrust Thrown Out of Washington State as Substitute Trustee

    by Neil Garfield

    Editor's Note: Same caveat as before --- this consent ruling, although potentially persuasive to other courts is not evidence of the violations in and of itself, but provides a good pep talk to attorneys out there who are too timid to make statements about the treachery in the acts of the Bank of America, and all others who use the 'substitution of trustee" as a vehicle to foreclose on properties.

    Second caveat: this does not mean that the mortgages are invalid which is a separate subject. Nor does it necessarily mean that Joe Banker (see prior post) has problems when it comes to identifying the creditor and establishing the status of the loan receivable account (primarily because no such account exists, except at the subservicer level which is at best only a partial snapshot of the entire list of transactions concerning each loan subject to claims of securitization.

    What it DOES mean is that Recontrust is not doing business in Washington anymore and can't come back. If it wants to come back, and alternatively one might infer if ANYONE wants to be a substitute trustee or foreclosing trustee, they must meet the following requirements:

    1. Maintain physical presence in the State with adequate staffing and knowledgeable people who can actually answer substantive questions about the loan status or so-called default status.

    2. The office must be authorized to accept payments to reinstate a mortgage.

    3. The office must be authorized in all respects to postpone, reschedule or cancel the foreclosures (this taking out the layers of corporate bureaucracy) which means that someone with real decision-making authority must be physically present in the office during normal business hours.

    4. Discloses the contact information for the State office to the borrower.

    5. Identifies the actual creditor with a loan receivable that is due and the same information for the authorized servicer for that loan.

    6. Provides proof that the "note holder" actually has an enforceable interest. That means they must show and prove the existence of the actual loan receivable and the person or entity to whom the obligation is owed.

    7. Applies fees and costs only as allowed by law.

    8. Acts in good faith toward the borrower. "For purposes of this Consent Judgment only, it is a breach of good faith to enter into an agreement with a note owner, beneficiary or its agent wherein Defendant agrees to stop or postpone a foreclosure only when approved by the note owner, beneficiary or agent, or to defy solely to a single party when acting as a trustee." [That is because it is a breach of the statutory duties of the trustee to bind itself contractually to following the orders of the beneficiary only and not include the duties of good faith toward the Trustor].

    9. They cannot act as both trustee and beneficiary. [Implication: if the Trustee that is substituted is owned or controlled, contractually or otherwise, by the beneficiary they may not serve as Trustee.]

    10. Trustees cannot only refer to defaults in fact, not as reported. What this means in terms the degree of due diligence required is yet to be determined.

Stuff Your Foreclosure, We Ain't Moving!

Posted by Ari, Monday, August 20th, 2012 @ 12:22pm

Judicial Ethics & Self-Represented Litigants

Posted by Wendy S., Thursday, July 26th, 2012 @ 10:05am

  • From the Executive Summary:


    The responsibility of ensuring a fair trial in cases involving self-represented litigants requires patience, skill, and understanding on the part of the trial judge. Under the code of judicial conduct, no reasonable question is raised about a judge’s impartiality when the judge, in an exercise of discretion, makes procedural accommodations that will provide a self-represented litigant acting in good faith the opportunity to have his or her case fairly heard — and, therefore, a judge should do so. The concept of judicial impartiality does not require an inflexible approach to courtroom procedures that sacrifices fairness, courtesy, and effectiveness. Providing reasonable accommodations for pro se litigants is consistent with the discretion a judge has to control parties and proceedings and with the role of a judge as more than a mere functionary who preserves order and lends ceremonial dignity. Moreover, the principles that the rules of procedure do not require sacrifice of fundamental justice and that cases should be decided on the merits support judicial intervention to ensure that a pro se litigant gets at least a fair chance to present his or her case.

    A judge is required to set an example of courtesy toward self-represented litigants for others to follow, to ensure that court staff receive the training necessary to provide patient, helpful service to self-represented litigants, and to prevent attorneys from taking advantage of self-represented litigants. Thus, a judge should not use a tone or manner that is intimidating or disdainful or make negative comments regarding the wisdom of self-representation. Moreover, a judge should address self- represented litigants with titles comparable to those used for counsel and avoid over-familiar conduct toward attorneys.

    No reasonable question is raised about a judge’s impartiality if the judge avoids legal jargon, abbreviations, acronyms, shorthand, and slang that would con- fuse a self-represented litigant. Moreover, giving a rationale for a decision is inherently part of the duty of a judge, and doing so in a case involving a self-represented litigant could not reasonably be considered evidence of partiality even if explaining the basis for a ruling incidentally assists a self-represented litigant.

    A judge should take pains to protect self-represented litigants against the consequences of technical errors. Moreover, liberal construction of pleadings filed by self-represented litigants and freely allowing amendment of pleadings are not special accommodations for self-represented litigants but simply an application of the rule for all cases under the modern notice-pleading practice that is even more justified in cases involving self-represented litigants. The liberal construction rule requires that a judge give effect to the substance, rather than the label, of a self-represented litigant’s papers, recognizing any obvious possible cause of action or defense suggested by the facts alleged even if the litigant does not expressly invoke that theory. However, the liberal construction rule does not relieve a self-represented litigant of the responsibility of making sufficient factual allegations to give the other side fair notice or permit a judge to apply a more sympathetic view of the substantive law or relieve a self-represented litigant of the usual burden or standard of proof.

    It does not raise reasonable questions about a judge’s impartiality for the judge to explain to all parties how the proceedings will be conducted, for example, to explain the process, the elements, that the party bringing the action has the burden to present evidence in support of the relief sought, the kind of evidence that may be presented, and the kind of evidence that cannot be considered. In a logical extension of the majority rule that a self-represented litigant should be instructed how to respond to a motion for summary judgment, a trial judge should instruct a self-represented litigant in the proper procedures for any action he or she is obviously attempting to accomplish. Facilitating an unrepresented litigant’s presentation of his or her own case, as the litigant has conceived it, is the provision of legal information, not legal advice.

    In all cases, including those with self-represented litigants, a judge has the discretion to ask questions of witnesses to clarify testimony and develop facts. A judge’s clarifying questions do not unfairly disadvantage the represented party by altering the evidence but simply eliminate the unfair advantage a represented party might gain if a self-represented party is unable to present the facts in a way the judge or jury can comprehend. A judge may also use questions to fill a gap in the evidence that is likely to result in a decision other than on the merits. Moreover, a judge may create an informal atmosphere for the acceptance of evidence and testimony, relaxing the formal rules of procedure and evidence for cases involving self-represented litigants. A judge should ensure that a settlement presented for entry as a court order is not unduly one-sided and is understood by all litigants.

    A judge’s ability to make reasonable accommodations for pro se litigants does not oblige a judge to overlook a self-represented litigant’s violation of a clear order, to repeatedly excuse a self-represented litigant’s failure to comply with deadlines, or to allow a self-represented litigant to use the process to harass the other side.

    To suggest techniques judges may effectively and ethically use to fairly handle litigation involving self-represented parties, included are Proposed Best Practices for Cases Involving Self-Represented Litigants for consideration and adaptation by jurisdictions as guidance for their judges.

    Read the entire report here:

    Judicial Ethics & Self-Represented Litigants.pdf

California Homeowners Bill of Rights

Posted by Wendy S., Thursday, July 19th, 2012 @ 12:44pm

  • This link is for the Homeowners Bill of Rights (AB-278) that was just signed off on by Governor Brown and goes into effect on January 1, 2013.  This is for California.  It ammends the state statutes.  It includes the legislatures statement of intent and adds quite a bit of langauge.  It repeals 2924 of the Civil Code, as amended by Section 2 of Chapter 180 of the Statutes of 2010.  Section 2924.9 is added to the Civl Code.

    While it doesn't take effect until 2013 it can be used to show "intent" of the legislature and such in current lawsuits.  It really needs to be studied before applying as there is a lot added, ammended and "clarified" - not all of which is good.  

    http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB278

GMAC Files Bankruptcy - Homeowners in Luck!

Posted by Wendy S., Thursday, June 14th, 2012 @ 4:19pm

  • Homeowners who are in foreclosure with GMAC as a plaintiff are in luck!  GMAC filed bankruptcy on June 12, 2012, naming a list of more than six thousand creditors.

    GMAC no longer has standing to sue a homeowner in foreclosure as their assets are now controlled by the United States Trustee and the Bankruptcy Court.

    I have a feeling courts are going to be receiving many notices of this bankruptcy with many quiet title actions to follow!

    At this time, we are asking anyone with a GMAC lawsuit to contact us directly.  We need to discuss some more particulars about this with you.

    Thanks!  And we look forward to hearing from you!

    GMAC Bankruptcy Filing 6-12-2012.pdf

Fannie Mae & Freddie Mac Swooping In To Steal Homes After Foreclosure

Posted by Wendy S., Friday, June 1st, 2012 @ 1:59pm

  • This is an old news item, but one we thought we should share with the foreclosure community.  In a nutshell, after you've been foreclosed on by one of the Big Banks that received a bailout in October 2008 (you know, Wells Fargo, Bank of America, JPMorgan, Citibank), Fannie Mae and Freddie Mac are swooping in to get you evicted from your home.  They become the owner of record and if they can't get you to leave after obtaining a court order, the sheriff will forceably remove you.

    Here's what happened.  While the banks were being bailed out, the Federal Reserve printed new money (you knew they did that, right? yeah - printed money out of thin air ...) to buy their bad assets.  What the Fed bought were Mortgage Backed Securities (MBS).  Why did the Fed do that?  Because it was the "Fannie/Freddie/Wall Street mortgage 'daisy chain' of securitization scheme" that really collapsed.  More and more of the MBS went into default.  So the Fed came in, paid off the insurance obligations and walked away with more than a trillion in MBS on their balance sheets.

    You heard that, right?  Paid off the insurance obligations.  Yup.  That's right.  Your note (which isn't really a note anymore, but you'll have to read the article to get a better handle on that one) was satisfied because the investors got paid by the Fed.  So the Fed, technically, became your investor.

    There's a lot here.  And it's great stuff.  Rather than regurgitate it all for you, Ithink you should read the article for yourself: U.S. Foreclosure Fraud in a Nutshell - How Average Joe's Home Was Stolen.

Judicial Notice in NJ - Help Fighting Foreclosure

Posted by Wendy S., Saturday, May 12th, 2012 @ 9:29am

  • Judicial Notice in NJ is one way to help you in fighting your foreclosure.  But first you need to understand what Judicial Notice means.

    As a side note, a couple members were in court yesterday with another member who had filed Judicial Notice with the Court.  This member was asked directly by the judge to explain what Judicial Notice means.  This explanation is what he could have used to explain why he had submitted a Judicial Notice in his foreclosure case.

    The common law doctrine of judicial notice is codified in N.J.R.E. 201.  Subsection (b)(3) describes the rationale of the rule.

    The purpose of judicial notice is to save time and promote judicial economy by precluding the necessity  of proving facts that cannot seriously  be disputed and are either generally or  universally known. Judicial notice cannot be used "to circumvent the rule against hearsay and thereby deprive a party of the right of cross-examination  on a contested material issue of fact." Because  judicial notice may not be used to deprive a party of crossexamination regarding a contested fact, the doctrine also cannot be used to take notice of the ultimate legal issue in dispute. [State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007) (quoting RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 711 (App. Div. 1988)).]

    Thomas-fo-Federal-National-Mortage-BAP-10th-Cir.-May-7.2012.No-Standing-MFRS-w.pdf

Help For Foreclosure - Challenging Assignments

Posted by Wendy S., Saturday, May 12th, 2012 @ 8:47am

  • Homeowners are often at a loss in finding help for foreclosure. Inside and outside the courtroom, we're running into roadblock after roadblock.  In court recently we've been running into issues when we try to challenge the assignment the bank is using to help them foreclose on our homes.  Your ability to effectively challenge an invalid assignment is critical to proving the bank doesn't have standing.  This article may give you the help for foreclosure you're looking for.

    This is a reprint.  You'll notice about half way through I have added a note to help you understand what this is all about.

    The Securitization Curtain is Lifting in Hawaii!

    Posted on March 29, 2012

    “One of the most important decisions for Borrowers Rights in the history of Hawaii has been made with this decision,” remarked Honolulu attorney Gary Dubin.  Honorable Judge J. Michael Seabright of the Hawaii United States District Court, today GRANTED the homeowners’ Motion to Dismiss the case filed against them in federal district court by Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1. 

    The Williams’ (Leigafoalii Tafue Williams and Papu Christopher Williams), who were epresented by Honolulu attorney, James J. Bickerton (Jim), of Bickerton Lee Dang & Sullivan, filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), in which they argue, among other things, that Plaintiff has no standing to foreclose because it has not established that it was validly assigned the Mortgage and Note.

    The Court noted that: “Because the court finds that Plaintiff has failed to establish its standing to bring this action, the court need not reach the Williams’s other arguments for dismissal.”

    Honorable Judge J. Michael Seabright gets it!  And his ORDER was detailed.  In the Discussion, Judge Seabright notes an argument that homeowners have being trying to persuade the courts (especially at the lower state levels) to grasp: STANDING and JURISDICTION.

    “Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to “show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12. In comparison, “prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights.” Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).”

    Let’s continue – but we’ll get back to that injury issue later in the post.

    The WILLIAMSES’ ORDER continues: “The Williams’s factually attack Plaintiff’s prudential standing to foreclose, arguing that there is no evidence establishing that Plaintiff was validly assigned the Mortgage and Note on the subject property. The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined with the merits of the Plaintiffs claims seeking to foreclose…”

    Of course, this was a New Century Mortgage (Home123) and the Plaintiffs were taking part in a fabricated assignment in 2009 to a 2007 Trust… (that boat had sailed 2 years before because the Trust had long since closed) – but even more compelling in the Motion to Dismiss-Memorandum was the Williams’s assertion that New Century aka Home123 was in a liquidating bankruptcy as of August 1, 2008 and they had nothing to assign in January 2009.

    Deutsche argued that the Williams’ were not parties or beneficiaries to the assignment such that they cannot challenge it… [we've heard that before, yeah?].  However, the Judge Seabright clarifies a valid point:

    (Editor’s Note: The above is a common challenge.  Homeowner attacks the validity of the assignment and bank says homeowner doesn’t have the right – only lender who is named on the assignment can challenge the validity of the assignment.  So at times, homeowners are being shut down from making the challenge and the court accepts the assignment as valid.  The following decision(s) may help a homeowner when challenging the validity of an assignment in the face of this ridiculous defense by the banks.)

    “Plaintiff’s argument confuses a borrowers, as opposed to a lenders, standing to raise affirmative claims. In Williams v. Rickard, 2011 WL 2116995, at *5 (D. Haw. May 25, 2011), — which involved the same parties in this action and in which Lei Williams asserted affirmative claims against Deutsche Bank – Chief Judge Susan Oki Mollway explained the difference between the two:

    “…Standing is a plaintiff’s requirement, and … Defendants must establish “standing” to defend themselves.”

    Judge Seabright continues:  “Deutsche Bank asserts affirmative claims against the Williams’ seeking to enforce the Mortgage and Note, and therefore must establish its legal right (i.e., standing) to do so. See, e.g., IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821, 828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have “a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor's] default”).”

    Attorney Bickerton faced off in court and explained to the Judge in oral argument that the banks didn’t just miss the date to file their assignments or needed to tidy up paperwork, this was a ‘Business model using the loans for overnight lending.’  Bickerton told the Court that if this wasn’t dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williams’ loan.

    Understanding the premeditated intentions of these banks, how they pledge, collateralize, swap, sell, lease, and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard – the fraud upon the homeowners, the courts and the state.

    Jim Bickerton profoundly says that, “every foreclosure in the state is a victim of this shadow banking scam.”

    James J. Bickerton
    Bickerton Lee Dang & Sullivan
    Fort St Tower
    745 Fort St Ste 801
    Honolulu, HI 96813
    808-599-3811‪ 
    Email: bickerton@bsds.com

    “Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary,” praises Gary Dubin.

    INJURY – Remember that issue from above?

    Let’s discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID. The REMIC has failed. But maybe the investors ARE getting paid with the behind the scenes shadow banking scheme.

    And let’s suppose we can see the trading in the trust is active, numerous investors have already been paid off – where is the “injury”….hmmm?

    We’re connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in… and eventually we’ll know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to “off” us)… it’s coming soon – to a court room near you…

    …and the Securitization curtain will be lifting for the big show.

Sewer Service

Posted by Wendy S., Saturday, April 14th, 2012 @ 1:16pm

  • Odd as it may sound, in foreclosures there is actually a term called "sewer service."  Sewer service is when the plaintiff doesn't serve a defendant with a complaint, files a fraudulent affidavit of service (meaning they file the papers saying you were served) and then obtain judgment against you because you never showed up in court.

    Well how in the world could you show up in court if you didn't even know there was a lawsuit pending against you?

    That's the point. As we see in many fraudclosures, this is yet another tactic the banks are using to steal homes away from us.

    There are a number of claims contained in this United States (federal) Court decision, including:

    • FDCPA (Fair Debt Collection Practices Act)
    • RICO (Racketeer Influenced and Corrupt Organizations Act)
    • claims under New York General Business Law (GBL), and 
    • claims under New York Judiciary Law.

    There are issues covered under "equitable tolling," which is discussed at length in this decision. Equitable tolling means there is a time limit (arguments are time-barred) from the time the fraud was discovered and the time a party can sue based on a fraud claim.

    Also discussed is the Rooker-Feldman doctrine and the Noerr-Pennington doctrine.

    This is a federal class action foreclosure fraud case, that is well worth reading.

Wells Fargo Misapplies Payments For Every Mortgage Loan in Bankruptcy

Posted by Wendy S., Tuesday, April 10th, 2012 @ 1:35pm

  • It should come as no surprise that one of our country's largest mortgage loan servicers, Wells Fargo, misapplies payments, resulting in an incorrect amortization of mortgage loans.

    Unfortunately for many of us, we don't have the resources, stamina or understanding  of the amortization process to catch them.

    But Mr. Jones did.  In fact, he had all of the above - resources (he spent nearly $300k in attorney's fees), stamina (he spent more than 5 years in litigation) and understanding (he caught them in misapplication of fees on numerous occassions throughout his case).

    And as a result, he was awarded more than $3 million in punitive damages!!

    You have to read this opinion from the 5th Circuit Court of Appeals in Louisiana.  It's actually quite amusing.  This judge all but asks Wells F^&*go to bend over and drop their drawers while she paddles them with the biggest, hardest board she can find!

    For those of us who are involved in litigation with Wells F&*^go, what should we take from this?  Insist on getting an accounting of all fees and how they are being applied, including all fees since you have gone into foreclosure.  You should do this during discovery.  Get a court order demanding they produce discovery if you have to.  Then, if you have to, get a forensic accounting of the records.  Use this case to help back up your case.

    Stick it to em!  It can be done as Mr. Jones has proven in his case!

Have a World Savings Bank Loan?

Posted by Wendy S., Tuesday, April 10th, 2012 @ 12:42pm

Testimony of Legal Services of NYC to Congress | The State of the Housing Markets, Mortgage Servicing Practices and Foreclosures

Posted by Wendy S., Friday, March 23rd, 2012 @ 1:20pm

  • Legal Services NYC (LS-NYC) is the larges provider of free civil legal services to the poor. They provided testimony to the Congress of the United States Committee on Oversight and Government Reform, which they titled:

    Failure to Recover: The State of the Housing Markets, Mortgage Servicing Practices, and Foreclosures

    Their testimony is dated March 19, 2012. Testimony covers three distinct areas:

    1. current impact of foreclosures in the communities they serve;
    2. servicer practices that have exacerbated and prolonged the foreclosure crisis and increased the likelihood of wrongful foreclosures; and
    3. reforms they believe will shape a healthier and more just economic recovery for homeonwners and all of New York State.

    Foreclosure Crisis - Impact on Communities in NY

    Historically, low-income communities of color were targeted for predatory mortgages. LS-NYC identifies the fundamental problem to be not only economic hardship resulting in a default, but more importantly the problem is high-cost mortgage loans. Which leads to the next issue.

    Foreclosure Crisis - Unscrupulous Practices of Lenders and Their Servicing Agents

    Lenders often refuse to negotiate affordable modifications. They employ a number of different tactics to barr distressed homeowners from seeking relief, thereby forcing foreclosures. Some of the unscrupulous tactics these pretender lenders and their servicing agents use are:

    • Unnecessary delays
    • Unexplained and excessive fees
    • Improper denials
    • "Supposed" investor restrictions

    Foreclosure Crisis - Aggressive Enforcement of Strong Servicing Standards Needed

    The LS-NYC makes recommendations for mandatory National standards which are needed to stop servicers from abusing homeowners. Some of these include:

    • Evaluating homeowners for modification PRIOR to foreclosure
    • Homeowners should be allowed to use the failure to offer a loan modification in their foreclosure defense
    • Need to standardize and make available to the public Net Present Values tests for modifications
    • Hardship modifications should be permanent, affordable and available without waiver of homeowner's legal rights
    • Loan modification denials should be accompanied by documents backing up the denial
    • Homeowners deserve to have access to FULL documentation as to investor restrictions barring loan modification and documents related to servicers' attempts to obtain a waiver from investors
    • Servicers must be required to seek waivers and investors should be encouraged to grant the waivers
    • Fees to servicers must be limited
    • Force-placed insurance should be replaced by default reliance on replacing or continuing existing coverage at a reasonable price
    • Servicing transparency via transfer notices and periodic statements
    • Application of payments and use of suspense accounts should be fair and reasonable

    Principal Reduction is Necessary to
    Restabilize Housing Market

    Especially for homeowners who are upsidedown in their mortgage, principal reduction is not only in the homeowner's best interest, but it is also in the best interests of investors. Loan modifications with principal reductions have lower re-default rates. Yet servicers refuse to offer principal reduction as a remedy to eventual foreclosure.

    See the full report on The State of the Housing Markets, Mortgage Servicing Practices and Foreclosures.


     

New Bankruptcy Proof of Claim Rules

Posted by Wendy S., Wednesday, March 21st, 2012 @ 10:10am

  • As a result of concerns over residential mortgage servicers and the issues that have arisen as a result of servicers' actions in mortgage foreclosures, the rules in bankruptcy proof of claim have changed.

    Now, the new bankruptcy forms require a claimant to file proof of their claim. Only a "creditor or other person authorized" to file the proof of claim may do so.

    Bankruptcy Proof of Claim Requires Affirmation

    When a creditor or other person authorized to file the proof of claim does so, s/he must affirm under penalty of perjury that s/he is"

    • the creditor
    • the creditor's authorized agent (with an attached power of attorney, if any)
    • the trustee, debtor or their authorized agent
    • the guarantor, surety, indorser or other codebtor

    The penalty for filing a fraudulent claim is prominently displayed, stating a "fine of up to $500,000 or imprisonment for up to 5 years, or both" may be imposed.

    Read more about the new bankruptcy proof of claim rules here.

Debt Collection ToolBox

Posted by Wendy S., Friday, March 16th, 2012 @ 1:29pm

  • This debt collection toolbox will help you fight debt collectors. Knowing what your rights are and what they can and cannot do it of paramount importance in disputing and fighting creditors. First and foremost, DOCUMENT EVERYTHING. 

    Here is a sample phone script that can be used to catch debt collectors in FDCPA (Fair Debt Collection Practices Act) violations. 

    Here is a debt validation (FDCPA) flow chart to help you visualize the debt collection procedure you can follow to dispute your debt and sue for violations of FDCPA.

    These are some frequently violated FDCPA Guidelines. This includes basic definitions, FDCPA guidelines on contacting third parties, prohibited communications, harassment or abuse, false or misleading representations in communications, unfair practices, 30-day validation notice and legal actions.

    If you have creditors calling you on a frequent basis, you may consider getting a recorder to attach to your phone so you can record the phone calls from the collectors.

    Here you can read about the Fair Credit Reporting Act (FCRA), a document prepared by the Federal Trade Commission (FTC) to help consumers understand what and how credit reporting is done, especially when it comes to debt collection.

    If you have additional materials you believe would be helpful when dealing with debt collection, please contact us.

OIG Report on Wells Fargo Foreclosure Practices

Posted by Wendy S., Thursday, March 15th, 2012 @ 7:48am

  • The Office of the Inspector General undertook a nationwide effort to review the foreclosure practices of the five largest FHA mortgage servicers including Wells Fargo, Bank of America, CitiMortgage, JP Morgan Chase and Ally Financial (formerly GMAC). As part of the process, a report was issued for each bank separately.

    The banks were not aware of the results while the investigation was underway. The reports are different for each servicer given the amount of information the auditors were given access to, differing procedures and processes between the banks and scope limitations imposed by some of the servicers.

    In particular, the OIG's review of Wells Fargo's foreclosure and claims processes included procedures for signing and notarizing sworn affidavits used to obtain judgments in foreclosure cases. 

    Shockingly, Wells Fargo restricted access to robo-signers and refused to provide information and data in a timely manner. Eventually, access to all 14 affidavit signers (read: robo-signers) was allowed, but only with Wells Fargo management and legal counsel present. Oh, and they were prepped beforehand by legal counsel, before the OIG was able to gain access to them.

    Suprisingly, in the process of talking to the 14 robo-signers Wells Fargo identified in their offices, more were uncovered by the OIG - robo-signers not initially identified by Wells Fargo. Eventually 33 of 35 identified foreclosure robo-signers were interviewed under the watchful eye of Wells Fargo mangement and legal counsel.

    Results of the Foreclosure / Fraudclosure Inquiry

    Here is a brief overview of the results. You should read the entire report on Wells Fargo's foreclosure practices. It's quite entertaining.

    • Robo-signers had no personal knowledge of foreclosure documents or data they were signing
    • Robo-signers signed up to 600 affidavits for foreclosure cases per day
    • Many foreclosure robo-signers had little to no education beyond high school
    • Many foreclosure robo-signers had no banking or real estate knowledge
    • Most robo-signers did not have the qualifications to hold titles such as "vice president of loan documentation," a designation which came with no other authority than to robo-sign foreclosure documents
    • Foreclosure notaries notarized up to 1000 documents and affidavits per day

    Make sure you read the results for the other fraudclosure banks:

    • Bank of America
    • CitiMortgage
    • JP Morgan Chase
    • Ally Financial (the newly branded name GMAC is hiding behind)

NJ Directory of Appellate Judges and Pro Se Kit

Posted by Wendy S., Thursday, March 15th, 2012 @ 7:25am

  • This is the directory of Appellate Judges in New Jersey. For those of you going to appeal in New Jersey foreclosure, the directory may be helpful.

    See the NJ Directory of Appellate Judges

    There is also an appellate and foreclosure pro se kit provided by the New Jersey office of foreclosure. The kit may be helpful in fighting foreclosure.

Washington AG Robert McKenna Attacks MERS

Posted by Wendy S., Saturday, March 10th, 2012 @ 9:31am

  • Washington State's Attorney General, Robert McKenna, submitted an amicus brief in the matter of Bain v. Metropolitan Mortgage Group Inc., et al.  He answered two questions in relation to this foreclosure case and foreclosures in general involving MERS:

    1. Whether MERS is a lawful "beneficiary" within the terms of Washington's Deed of Trust Act, RCW 61.24.005(2), given the fact that it never held the promissory note secured by the deed of trust.
    2. Whether homeowners can institute a cause of action under Washington's Consumer Protection Act against MERS when MERS acts as an unlawful beneficiary under the terms of Washington's Deed of Trust Act.

    The AG concluded in this foreclosure amicus brief that MERS is not a lawful beneficiary under Washington's Deed of Trust Act and homeowners are entitled to remedy when MERS unlawfully acts as beneficiary.

    The Attorney General makes a number of different statements damning MERS, which may be helpful to Washington homeowners facing foreclosure. Some of these statements include:

    • Severing the note from the deed of trust creates havoc in the marketplace
    • MERS acts are unfair or deceptive
    • MERS acts impact the public interest
    • MERS acts injure consumers
    • MERS business practices cause consumer injury

    Read the Attorney General's amicus brief in the Bain v. Metropolitan Mortgage Group foreclosure case for more detail.

MoveOn.org Needs Hosts for Save Our Homes Rallies March 15th

Posted by Wendy S., Wednesday, March 7th, 2012 @ 4:51pm

  • MoveOn.org is a political action group many of you may be familiar with. I recently received an email from them asking me to host a rally next Thursday, March 15, 2012. 

    Use this link if you would like to host a Save Our Homes event next Thursday.

    More information on how to host an event is located on the Save Our Homes Host Guide page.

    Here's the content of the email I received, which will give you a little more information.

    Dear MoveOn member,

    My name is Lisa F., and I'm a MoveOn member in Philadelphia. For years, I lived the American Dream: I had a successful career and became a proud homeowner. Then, like millions of Americans, I saw the economic collapse turn my dream into a nightmare.

    After I lost my job and could no longer afford my monthly mortgage payment with Freddie Mac, I applied for a loan modification. But they repeatedly denied my application due to "missing paperwork." And more recently, I almost lost my home because a call agent made a 35-cent error when processing my payment.

    It makes no sense for Freddie Mac to sabotage homeowners like me. The housing crisis caused the economic collapse, and it's time Freddie Mac and Fannie Mae worked for, not against, millions of homeowners. But they're not going to do it on their own. 

    That's why it's so important that we take action now. Can you organize a simple rally in Ambler next Thursday, March 15 to Save Our Homes?

    Yes, I can lead an event!

    President Obama has the power to change this—by forcing government-run Freddie Mac and Fannie Mae to help homeowners reset their mortgages to the current value of their homes. That's why on Thursday, March 15, thousands of people will rally and deliver petitions to Obama for America campaign offices asking the president to throw underwater homeowners a lifeline. In places where there aren't OFA offices, we'll gather in front of Wall St. bank branches, city centers, and homes facing foreclosure.

    Being able to afford my home would mean I could sleep at night and not worry where I'll go if I lose my house. And since 60% of mortgages are held by Fannie and Freddie, millions of hardworking Americans could be helped if the president takes immediate action. I'm lucky enough to still be in my home, and it's time we come together to make sure no one else loses theirs. Hosting an event is easy—MoveOn will provide you with the petitions and other support materials.

    But there still isn't an event near you.

    Can you organize an event next Thursday to make sure your community's voice is heard?  

    Yes, I can lead an event on Thursday, March 15!

    Thanks for all you do. 

    –Lisa F., MoveOn member

    Want to support our work? We're entirely funded by our 5 million members—no corporate contributions, no big checks from CEOs. And our tiny staff ensures that small contributions go a long way. Chip in here.

Stop Foreclosure Using Quiet Title

Posted by Wendy S., Wednesday, March 7th, 2012 @ 11:32am

  • Below we're attaching a general article on using quiet title to stop foreclosure. Quiet Title Actions are being used in cases where a lien-holder cannot lay legal claim to a property, so the homeowner goes through the courts to quiet the title on their home.

    This article goes into a little more detail about the grounds a homeowner can use in a Quiet Title Action.

    Quiet Title: An Offensive Weapon To
    Stop Foreclosure Fraud


    August 21, 2011 By Vanessa Duvale

    Quiet title is an offensive weapon to Stop Foreclosure Fraud that closes any disputes over claims, encumbrances, or liens to a property. This legal action is resorted to put to court the eligibility of the claim in a property and let the law scrutinize and decide whoever must own the property. In instances involving foreclosure fraud, a quiet title action could be the greatest offensive action a consumer could take if the desired goal is tostop foreclosure and save the home.

    The plaintiff of a quiet title action can either be the owner of the property being defended or a lien- holder who claims that the property should be theirs to own. After the decision is made by the court, all the records will then be put to account in the property’s title registry as well as the civil court clerk’s office to solve whatever further impeding disputes that might come again. According toForeclosureFraudExposed.com, a quiet title action is brought to remove a cloud on the title so that plaintiff and those in conflict with her may forever be free of claims against the property.

    The grounds for a consumer to file quiet title action are numerous and they vary depending on the foreclosure situations. The more common reasons for consumers to seek quiet title action deal with adverse possession, where the true and real party with interest wants to the full possession of the property; Torrens title registration: an action which terminates all unrecorded claims; treaty disputes between nation boundaries; surveying errors; and fraudulent passage of property caused by a possible coercion or falsified deeds, transfers and assignments such as in cases that involve Mortgage Electronic Registration Systems and other Pretender Lenders.

    According to ForeclosureFraudExposed.com, for consumers’ nationwide who have attempted and failed to stop foreclosure fraud, the biggest factors in most instances of failure were due to a consumers’ lack of preparation, research, and understanding of the facts in their arsenal of legitimate evidences. Whether the consumer fighting to stop foreclosure fraud is new to the various aspect of foreclosure offensive and defensive techniques or a savvy professional that practices in this specific field, the most valuable piece of information to keep in mind that in order to have a solid plan attack to stop foreclosure fraud, a consumer or savvy professional must have a solid plan of defense lined with all evidences of foreclosure fraud.

    Preparing to stop foreclosure fraud with a quiet title action, although time consuming, can be a rewarding experience if the evidences in a consumers’ claim are valid and structured properly. A consumer or savvy hired professional has to take in mind all the miniscule details like visiting the Register of Deeds, combing through all files to find out if the loan made was securitized, and checking and double checking all documents on record for any traces of fraud. Furthermore, a consumer must also be willing to do extensive case studies research to determine the best case strategy that matches their situation and has provided victories to other consumers’ who have fought to stop foreclosure fraud on the same grounds.

    According to ForeclosureFraudExposed.com, keeping note of all points mentioned above will serve as a great factor in delaying and stopping foreclosure fraud, while placing the consumer in the best possible position to come out victoriously.

    To learn more about Quiet Title, Securitization, Uniform Commercial Code, and the various other successful methods available to Stop Foreclosure Fraud, please visit: 

    ForeclosureFraudExposed.com is the leading website that provides consumers’ with a complete A-Z step by step stop foreclosure defense tutorial library backed with case victories based on information that has helped 1000’s of consumers Stop Foreclosure and Save Their Homes.


    Media= For Information Contact Vanessa Duvale – support@foreclosurefraudexposed.com


    To learn more about Securitization, Uniform Commercial Code, Quiet Title and the various other successful methods available to Stop Foreclosure Fraud Please Visit: http://foreclosurefraudexposed.com

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