Month: September 2011

Are Temporary Loan And Mortgage Modifications A Scam?

As part of the Troubled Asset Relief Program financial bailout, many large national banks accepted huge sums of money from the United States government. Many of these large banks also signed agreements with the United States Treasury, in which they agreed to participate in the Home Affordable Modification Program. This program provides participating banks and mortgage servicers incentives to provide affordable mortgage loan modifications and other alternatives to foreclosure to eligible borrowers who are in danger of losing their homes.

Many banks have worked hard with homeowners to provide the homeowners with temporary trial modifications of their loans. These trial modifications, which are basically temporary modifications to the loan, are designed to lead to homeowners entering into permanent loan modifications with their banks, in order to save their homes permanently. Many homeowners have complied with temporary loan modifications on a trial basis, by providing the required documentation and making all agreed-upon payments towards the loan as it has been temporarily modified. However, many banks have not lived up to their promise to provide homeowners who have satisfied all requirements of a temporary loan modification with a permanent loan modification. This has resulted in thousands of residents across the country being deprived of the opportunity to permanently cure their delinquencies and save their homes.

The Home Affordable Modification Program has allocated to it approximately $75 billion dollars of government funds. Unfortunately, many banks have not gone far enough to make sure that their homeowners can obtain a permanent mortgage modification, even after the homeowners have satisfied all of the requirements of a temporary mortgage modification, which is supposed to lead to a permanent modification. Many of the agreements that the banks have with the homeowners state specifically that if the homeowner is in compliance with the loan modification trial period and makes all payments during the trial period, then the bank will provide the homeowner with a loan modification agreement on a permanent basis, but in practice this has not always happened.

 

These practices are not only contrary to the spirit of the federal legislation that created the Troubled Asset Relief Program, but may also violate the agreements between the banks and the homeowners. If you or someone you know has been effected by this practice, please contact us to discuss your legal options.

Forget Mass Joinder just use Consumer Legal Remedies Act Civil Code 1750

CALIFORNIA CIVIL CODE
SECTION 1750 et seq
Consumers Legal Remedies Act

1750. This title may be cited as the Consumers Legal Remedies Act.

1751. Any waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void.

1752. The provisions of this title are not exclusive. The remedies provided herein for violation of any section of this title or for conduct proscribed by any section of this title shall be in addition to any other procedures or remedies for any violation or conduct provided for in any other law.
Nothing in this title shall limit any other statutory or any common law rights of the Attorney General or any other person to bring class actions. Class actions by consumers brought under the specific provisions of Chapter 3 (commencing with Section 1770) of this title shall be governed exclusively by the provisions of Chapter 4 (commencing with Section 1780); however, this shall not be construed so as to deprive a consumer of any statutory or common law right to bring a class action without resort to this title. If any act or practice proscribed under this title also constitutes a cause of action in common law or a violation of another statute, the consumer may assert such common law or statutory cause of action under the procedures and with the remedies provided for in such law.

1753. If any provision of this title or the application thereof to any person or circumstance is held to be unconstitutional, the remainder of the title and the application of such provision to other persons or circumstances shall not be affected thereby.

1754. The provisions of this title shall not apply to any transaction which provides for the construction, sale, or construction and sale of an entire residence or all or part of a structure designed for commercial or industrial occupancy, with or without a parcel of real property or an interest therein, or for the sale of a lot or parcel of real property, including any site preparation incidental to such sale.

1755. Nothing in this title shall apply to the owners or employees of any advertising medium, including, but not limited to, newspapers, magazines, broadcast stations, billboards and transit ads, by whom any advertisement in violation of this title is published or disseminated, unless it is established that such owners or employees had knowledge of the deceptive methods, acts or practices declared to be unlawful by Section 1770.

1756. The substantive and procedural provisions of this title shall only apply to actions filed on or after January 1, 1971.

1760. This title shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.

1761. As used in this title:

  • (a) “Goods” means tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods which, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not severable therefrom.
  • (b) “Services” means work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.
  • (c) “Person” means an individual, partnership, corporation, limited liability company, association, or other group, however organized.
  • (d) “Consumer” means an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.
  • (e) “Transaction” means an agreement between a consumer and any other person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.
  • (f) “Senior citizen” means a person who is 65 years of age or older.
  • (g) “Disabled person” means any person who has a physical or mental impairment which substantially limits one or more major life activities.
    • (1) As used in this subdivision, “physical or mental impairment” means any of the following:
      • A. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss substantially affecting one or more of the following body systems: neurological; muscoloskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; or endocrine.
      • B. Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairment, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional illness.
    • (2) “Major life activities” means functions such as caring for one’ s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
  • (h) “Home solicitation” means any transaction made at the consumer’ s primary residence, except those transactions initiated by the consumer. A consumer response to an advertisement is not a home solicitation.

1770.

  • (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful:
    • (1) Passing off goods or services as those of another.
    • (2) Misrepresenting the source, sponsorship, approval, or certification of goods or services.
    • (3) Misrepresenting the affiliation, connection, or association with, or certification by, another. (MERS)and Securitization
    • (4) Using deceptive representations or designations of geographic origin in connection with goods or services.
    • (5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.
    • (6) Representing that goods are original or new if they have deteriorated unreasonably or are altered, reconditioned, reclaimed, used, or secondhand.
    • (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
    • (8) Disparaging the goods, services, or business of another by false or misleading representation of fact.
    • (9) Advertising goods or services with intent not to sell them as advertised.
    • (10) Advertising goods or services with intent not to supply reasonably expectable demand, unless the advertisement discloses a limitation of quantity.
    • (11) Advertising furniture without clearly indicating that it is unassembled if that is the case.
    • (12) Advertising the price of unassembled furniture without clearly indicating the assembled price of that furniture if the same furniture is available assembled from the seller.
    • (13) Making false or misleading statements of fact concerning reasons for, existence of, or amounts of price reductions.
    • (14) Representing that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.
    • (15) Representing that a part, replacement, or repair service is needed when it is not.
    • (16) Representing that the subject of a transaction has been supplied in accordance with a previous representation when it has not. Sign this transaction now and when the option ARM adjusts we will refinance at no cost to you
    • (17) Representing that the consumer will receive a rebate, discount, or other economic benefit, if the earning of the benefit is contingent on an event to occur subsequent to the consummation of the transaction.
    • (18) Misrepresenting the authority of a salesperson, representative, or agent to negotiate the final terms of a transaction with a consumer.
    • (19) Inserting an unconscionable provision in the contract.
    • (20) Advertising that a product is being offered at a specific price plus a specific percentage of that price unless (1) the total price is set forth in the advertisement, which may include, but is not limited to, shelf tags, displays, and media advertising, in a size larger than any other price in that advertisement, and (2) the specific price plus a specific percentage of that price represents a markup from the seller’s costs or from the wholesale price of the product. This subdivision shall not apply to in-store advertising by businesses which are open only to members or cooperative organizations organized pursuant to Division 3 (commencing with Section 12000) of Title 1 of the Corporations Code where more than 50 percent of purchases are made at the specific price set forth in the advertisement.
    • (21) Selling or leasing goods in violation of Chapter 4 (commencing with Section 1797.8) of Title 1.7.
    • (22)
      • (A) Disseminating an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone of the name of the caller or the organization being represented, and either the address or the telephone number of the caller, and without obtaining the consent of that person to listen to the prerecorded message.
      • (B) This subdivision does not apply to a message disseminated to a business associate, customer, or other person having an established relationship with the person or organization making the call, to a call for the purpose of collecting an existing obligation, or to any call generated at the request of the recipient.
    • (23) The home solicitation, as defined in subdivision (h) of Section 1761, of a consumer who is a senior citizen where a loan is made encumbering the primary residence of that consumer for the purposes of paying for home improvements and where the transaction is part of a pattern or practice in violation of either subsection (h) or (i) of Section 1639 of Title 15 of the United States Code or subsection (e) of Section 226.32 of Title 12 of the Code of Federal Regulations.
      A third party shall not be liable under this subdivision unless (1) there was an agency relationship between the party who engaged in home solicitation and the third party or (2) the third party had actual knowledge of, or participated in, the unfair or deceptive transaction. A third party who is a holder in due course under a home solicitation transaction shall not be liable under this subdivision.

(b)

    • (1) It is an unfair or deceptive act or practice for a mortgage broker or lender, directly or indirectly, to use a home improvement contractor to negotiate the terms of any loan that is secured, whether in whole or in part, by the residence of the borrower and which is used to finance a home improvement contract or any portion thereof. For purposes of this subdivision, “mortgage broker or lender” includes a finance lender licensed pursuant to the California Finance Lenders Law (Division 9 (commencing with Section 22000) of the Financial Code), a residential mortgage lender licensed pursuant to the California Residential Mortgage Lending Act (Division 20 (commencing with Section 50000) of the Financial Code), or a real estate broker licensed under the Real Estate Law (Division 4 (commencing with Section 10000) of the Business and Professions Code).
    • (2) This section shall not be construed to either authorize or prohibit a home improvement contractor from referring a consumer to a mortgage broker or lender by this subdivision. However, a home improvement contractor may refer a consumer to a mortgage lender or broker if that referral does not violate Section 7157 of the Business and Professions Code or any other provision of law. A mortgage lender or broker may purchase an executed home improvement contract if that purchase does not violate Section 7157 of the Business and Professions Code or any other provision of law. Nothing in this paragraph shall have any effect on the application of Chapter 1 (commencing with Section 1801) of Title 2 to a home improvement transaction or the financing thereof.

1780.

  • (a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against such person to recover or obtain any of the following:
    • (1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).
    • (2) An order enjoining such methods, acts, or practices.
    • (3) Restitution of property.
    • (4) Punitive damages.
    • (5) Any other relief which the court deems proper.
  • (b) Any consumer who is a senior citizen or a disabled person, as defined in subdivisions (f) and (g) of Section 1761, as part of an action under subdivision (a), may seek and be awarded, in addition to the remedies specified therein, up to five thousand dollars ($5,000) where the trier of fact (1) finds that the consumer has suffered substantial physical, emotional, or economic damage resulting from the defendant’s conduct, (2) makes an affirmative finding in regard to one or more of the factors set forth in subdivision (b) of Section 3345, and (3) finds that an additional award is appropriate. Judgment in a class action by senior citizens or disabled persons under Section 1781 may award each class member such an additional award where the trier of fact has made the foregoing findings.
  • (c) An action under subdivision (a) or (b) may be commenced in the county in which the person against whom it is brought resides, has his or her principal place of business, or is doing business, or in the county where the transaction or any substantial portion thereof occurred.
    If within any such county there is a municipal or justice court, having jurisdiction of the subject matter, established in the city and county or judicial district in which the person against whom the action is brought resides, has his or her principal place of business, or is doing business, or in which the transaction or any substantial portion thereof occurred, then such court is the proper court for the trial of such action. Otherwise, any municipal or justice court in such county having jurisdiction of the subject matter is the proper court for the trial thereof.
    In any action subject to the provisions of this section, concurrently with the filing of the complaint, the plaintiff shall file an affidavit stating facts showing that the action has been commenced in a county or judicial district described in this section as a proper place for the trial of the action. If a plaintiff fails to file the affidavit required by this section, the court shall, upon its own motion or upon motion of any party, dismiss any such action without prejudice.
  • (d) The court shall award court costs and attorney’s fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney’s fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff’s prosecution of the action was not in good faith.

1781.

  • (a) Any consumer entitled to bring an action under Section 1780 may, if the unlawful method, act, or practice has caused damage to other consumers similarly situated, bring an action on behalf of himself and such other consumers to recover damages or obtain other relief as provided for in Section 1780.
  • (b) The court shall permit the suit to be maintained on behalf of all members of the represented class if all of the following conditions exist:
    • (1) It is impracticable to bring all members of the class before the court.
    • (2) The questions of law or fact common to the class are substantially similar and predominate over the questions affecting the individual members.
    • (3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class.
    • (4) The representative plaintiffs will fairly and adequately protect the interests of the class.
  • (c) If notice of the time and place of the hearing is served upon the other parties at least 10 days prior thereto, the court shall hold a hearing, upon motion of any party to the action which is supported by affidavit of any person or persons having knowledge of the facts, to determine if any of the following apply to the action:
    • (1) A class action pursuant to subdivision (b) is proper.
    • (2) Published notice pursuant to subdivision (d) is necessary to adjudicate the claims of the class.
    • (3) The action is without merit or there is no defense to the action.
      A motion based upon Section 437c of the Code of Civil Procedure shall not be granted in any action commenced as a class action pursuant to subdivision (a).
    • (d) If the action is permitted as a class action, the court may direct either party to notify each member of the class of the action.
      The party required to serve notice may, with the consent of the court, if personal notification is unreasonably expensive or it appears that all members of the class cannot be notified personally, give notice as prescribed herein by publication in accordance with Section 6064 of the Government Code in a newspaper of general circulation in the county in which the transaction occurred.
    • (e) The notice required by subdivision (d) shall include the following:
      • (1) The court will exclude the member notified from the class if he so requests by a specified date.
      • (2) The judgment, whether favorable or not, will include all members who do not request exclusion.
      • (3) Any member who does not request exclusion, may, if he desires, enter an appearance through counsel.
    • (f) A class action shall not be dismissed, settled, or compromised without the approval of the court, and notice of the proposed dismissal, settlement, or compromise shall be given in such manner as the court directs to each member who was given notice pursuant to subdivision (d) and did not request exclusion.
    • (g) The judgment in a class action shall describe those to whom the notice was directed and who have not requested exclusion and those the court finds to be members of the class. The best possible notice of the judgment shall be given in such manner as the court directs to each member who was personally served with notice pursuant to subdivision (d) and did not request exclusion.

1782.

  • (a) Thirty days or more prior to the commencement of an action for damages pursuant to the provisions of this title, the consumer shall do the following:
    • (1) Notify the person alleged to have employed or committed methods, acts or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.
    • (2) Demand that such person correct, repair, replace or otherwise rectify the goods or services alleged to be in violation of Section 1770.
      Such notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred, such person’s principal place of business within California, or, if neither will effect actual notice, the office of the Secretary of State of California.
  • (b) Except as provided in subdivision (c), no action for damages may be maintained under the provisions of Section 1780 if an appropriate correction, repair, replacement or other remedy is given, or agreed to be given within a reasonable time, to the consumer within 30 days after receipt of such notice.
  • (c) No action for damages may be maintained under the provisions of Section 1781 upon a showing by a person alleged to have employed or committed methods, acts or practices declared unlawful by Section 1770 that all of the following exist:
    • (1) All consumers similarly situated have been identified, or a reasonable effort to identify such other consumers has been made.
    • (2) All consumers so identified have been notified that upon their request such person shall make the appropriate correction, repair, replacement or other remedy of the goods and services.
    • (3) The correction, repair, replacement or other remedy requested by such consumers has been, or, in a reasonable time, shall be, given.
    • (4) Such person has ceased from engaging, or if immediate cessation is impossible or unreasonably expensive under the circumstances, such person will, within a reasonable time, cease to engage, in such methods, act, or practices.
  • (d) An action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without compliance with the provisions of subdivision (a). Not less than 30 days after the commencement of an action for injunctive relief, and after compliance with the provisions of subdivision (a), the consumer may amend his complaint without leave of court to include a request for damages. The appropriate provisions of subdivision (b) or (c) shall be applicable if the complaint for injunctive relief is amended to request damages.
  • (e) Attempts to comply with the provisions of this section by a person receiving a demand shall be construed to be an offer to compromise and shall be inadmissible as evidence pursuant to Section 1152 of the Evidence Code; furthermore, such attempts to comply with a demand shall not be considered an admission of engaging in an act or practice declared unlawful by Section 1770. Evidence of compliance or attempts to comply with the provisions of this section may be introduced by a defendant for the purpose of establishing good faith or to show compliance with the provisions of this section.

1783. Any action brought under the specific provisions of Section 1770 shall be commenced not more than three years from the date of the commission of such method, act, or practice.

1784. No award of damages may be given in any action based on a method, act, or practice declared to be unlawful by Section 1770 if the person alleged to have employed or committed such method, act, or practice

  • (a) proves that such violation was not intentional and resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid any such error and
  • (b) makes an appropriate correction, repair or replacement or other remedy of the goods and services according to the provisions of subdivisions (b) and (c) of Section 1782.

 

Small claims has equitable powers…….. this could work! ….. Could this Work????

Here is a crazy idea

In 2009 the California legislature gave equitable powers to the small claims court

We make up a little package that includes the deed of trust and the notice of default and show they are not the party in interest ie… The original Bank…… is not the pretender lender……… and ask the small claims court to rescind the Notice of Default

Banks have to defend without their lawyers and without demurs

Then there would be a court order rescinding the notice no damages just rescission

Here is the amended code pay close attention to (b)

California Code of Civil Procedure Section 116.220

Legal Research Home > California Laws > Code of Civil Procedure > California Code of Civil Procedure Section 116.220

(a) The small claims court has jurisdiction in the
following actions:
   (1) Except as provided in subdivisions (c), (e), and (f), for
recovery of money, if the amount of the demand does not exceed five
thousand dollars ($5,000).
   (2) Except as provided in subdivisions (c), (e), and (f), to
enforce payment of delinquent unsecured personal property taxes in an
amount not to exceed five thousand dollars ($5,000), if the legality
of the tax is not contested by the defendant.
   (3) To issue the writ of possession authorized by Sections 1861.5
and 1861.10 of the Civil Code if the amount of the demand does not
exceed five thousand dollars ($5,000).
   (4) To confirm, correct, or vacate a fee arbitration award not
exceeding five thousand dollars ($5,000) between an attorney and
client that is binding or has become binding, or to conduct a hearing
de novo between an attorney and client after nonbinding arbitration
of a fee dispute involving no more than five thousand dollars
($5,000) in controversy, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code.
   (5) For an injunction or other equitable relief only when a
statute expressly authorizes a small claims court to award that
relief.
   (b) In any action seeking relief authorized by paragraphs (1) to
(4), inclusive, of subdivision (a), the court may grant equitable
relief in the form of rescission, restitution, reformation, and
specific performance, in lieu of, or in addition to, money damages.
The court may issue a conditional judgment. The court shall retain
jurisdiction until full payment and performance of any judgment or
order.
   (c) Notwithstanding subdivision (a), the small claims court has
jurisdiction over a defendant guarantor as follows:
   (1) For any action brought by a natural person against the
Registrar of the Contractors' State License Board as the defendant
guarantor, the small claims jurisdictional limit stated in Section
116.221 shall apply.
   (2) For any action against a defendant guarantor that does not
charge a fee for its guarantor or surety services, if the amount of
the demand does not exceed two thousand five hundred dollars
($2,500).
   (3) For any action brought by a natural person against a defendant
guarantor that charges a fee for its guarantor or surety services,
if the amount of the demand does not exceed six thousand five hundred
dollars ($6,500).
   (4) For any action brought by an entity other than a natural
person against a defendant guarantor that charges a fee for its
guarantor or surety services or against the Registrar of the
Contractors' State License Board as the defendant guarantor, if the
amount of the demand does not exceed four thousand dollars ($4,000).
   (d) In any case in which the lack of jurisdiction is due solely to
an excess in the amount of the demand, the excess may be waived, but
any waiver is not operative until judgment.
   (e) Notwithstanding subdivision (a), in any action filed by a
plaintiff incarcerated in a Department of Corrections and
Rehabilitation facility, the small claims court has jurisdiction over
a defendant only if the plaintiff has alleged in the complaint that
he or she has exhausted his or her administrative remedies against
that department, including compliance with Sections 905.2 and 905.4
of the Government Code. The final administrative adjudication or
determination of the plaintiff's administrative claim by the
department may be attached to the complaint at the time of filing in
lieu of that allegation.
   (f) In any action governed by subdivision (e), if the plaintiff
fails to provide proof of compliance with the requirements of
subdivision (e) at the time of trial, the judicial officer shall, at
his or her discretion, either dismiss the action or continue the
action to give the plaintiff an opportunity to provide that proof.
   (g) For purposes of this section, "department" includes an
employee of a department against whom a claim has been filed under
this chapter arising out of his or her duties as an employee of that
department.

Please let me know what you think on this one

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An individual Chapter 11 bankruptcy may be better for you than Chapter 13

 

In my 21 years of practicing bankruptcy law, I have never been as excited by anything as the development of the individual Chapter 11 case.

Traditionally, Chapter 13 has been used for personal reorganizations while Chapter 11 has been reserved for more complex corporate reorganizations.� However, a small handful of sophisticated bankruptcy lawyers, like Brett Mearkle of Jacksonville, Florida and BLN contributors Brett Weiss and Kurt O�Keefe, are taking advantage of the debtor-friendly rules of Chapter 11, to provide more meaningful debt restructuring for individual consumers.

Before 2005, individual Chapter 11 cases were virtually non-existent. However, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which has generally been horrible for individual debtors, changed a critical rule in Chapter 11 that has made it the choice for bankruptcy lawyers seeking the best restructuring options for many middle-class Americans.� That rule, known as the Absolute Priority Rule, no longer applies to individuals filing under Chapter 11.� The result is that, unlike corporate debtors, an individual (or married couple) filing under Chapter 11 does not have to repay 100% of his unsecured debts.� Rather, the individual need only pay his �disposable income� over a 5 year period, just like in Chapter 13 cases.

The challenge for bankruptcy lawyers is streamlining the Chapter 11 case for consumers to bring the overall cost of filing down.� Currently, my firm has managed to bring down the cost of a typical Chapter 11, but even so, the individual Chapter 11 case costs $10,000 to $30,000, depending on the facts.� However, in as many as half of all consumer reorganizations, these increased fees and costs are far outweighed by the savings and convenience of Chapter 11.

These savings, like �cram down� of automobiles and elimination of the trustee�s administrative fee, will be discussed in more detail in my upcoming articles.

The change to the Absolute Priority Rule has gone widely unnoticed by consumer bankruptcy lawyers, largely because so few understand Chapter 11.� However, we are starting to realize the power of Chapter 11 for consumers, and a concerted effort is being made by many to understand this complicated area of bankruptcy law.� I’ll be in Tucson next week, attending a three day seminar conducted by The National Association of Consumer Bankruptcy Attorneys to learn how to identify which consumers will benefit from Chapter 11 and how to file these types of bankruptcies.� Of course a three-day seminar is really the beginning of an education in Chapter 11, and I predict there will be more advanced seminars to follow.

Be on the lookout for more articles and videos by me and other BLNers on the advantages and nuances of the individual Chapter 11.

CAL. CCP. CODE § 473 After default judgement against lender… then what… WAIT 6 months

California Code – Section 473

(a)(1)The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(2)When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.

(b)The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

(c)(1)Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following:

(A)Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party.

(B)Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund.

(C)Grant other relief as is appropriate.

(2)However, where the court grants relief from a default or default judgment pursuant to this section based upon the affidavit of the defaulting party’s attorney attesting to the attorney’s mistake, inadvertence, surprise, or neglect, the relief shall not be made conditional upon the attorney’s payment of compensatory legal fees or costs or monetary penalties imposed by the court or upon compliance with other sanctions ordered by the court.

(d)The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

Civil War Erupts On Wall Street: As Reality Finally Hits The Financial Elite, They Start Turning On Each Other

Full-Blown

September 3rd, 2011 | Filed under Economy, Feature, Hot List, News . Follow comments through RSS 2.0 feed. Click here to comment, or trackback.
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By David DeGraw

Full-Blown Civil War Erupts On Wall Street: As Reality Finally Hits The Financial Elite, They Turn On Each OtherFinally, after trillions in fraudulent activity, trillions in bailouts, trillions in printed money, billions in political bribing and billions in bonuses, the criminal cartel members on Wall Street are beginning to get what they deserve. As the Eurozone is coming apart at the seams and as the US economy grinds to a halt, the financial elite are starting to turn on each other. The lawsuits are piling up fast. Here’s an extensive roundup:

As I reported last week:

Collapse Roundup #5: Goliath On The Ropes, Big Banks Getting Hit Hard, It’s A “Bloodbath” As Wall Street’s Crimes Blow Up In Their Face

Time to put your Big Bank shorts on! Get ready for a run… The chickens are coming home to roost… The Global Banking Cartel’s crimes are being exposed left & right… Prepare for Shock & Awe…

Well, well… here’s your Shock & Awe:

First up, this shockingly huge $196 billion lawsuit just filed against 17 major banks on behalf of Fannie Mae and Freddie Mac. Bank of America is severely exposed in this lawsuit. As the parent company of Countrywide and Merrill Lynch they are on the hook for $57.4 billion. JP Morgan is next in the line of fire with $33 billion. And many death spiraling European banks are facing billions in losses as well.

FHA Files a $196 Billion Lawsuit Against 17 Banks

The Federal Housing Finance Agency (FHFA), as conservator for Fannie Mae and Freddie Mac (the Enterprises), today filed lawsuits against 17 financial institutions, certain of their officers and various unaffiliated lead underwriters. The suits allege violations of federal securities laws and common law in the sale of residential private-label mortgage-backed securities (PLS) to the Enterprises.

Complaints have been filed against the following lead defendants, in alphabetical order:

1. Ally Financial Inc. f/k/a GMAC, LLC – $6 billion
2. Bank of America Corporation – $6 billion
3. Barclays Bank PLC – $4.9 billion
4. Citigroup, Inc. – $3.5 billion
5. Countrywide Financial Corporation -$26.6 billion
6. Credit Suisse Holdings (USA), Inc. – $14.1 billion
7. Deutsche Bank AG – $14.2 billion
8. First Horizon National Corporation – $883 million
9. General Electric Company – $549 million
10. Goldman Sachs & Co. – $11.1 billion
11. HSBC North America Holdings, Inc. – $6.2 billion
12. JPMorgan Chase & Co. – $33 billion
13. Merrill Lynch & Co. / First Franklin Financial Corp. – $24.8 billion
14. Morgan Stanley – $10.6 billion
15. Nomura Holding America Inc. – $2 billion
16. The Royal Bank of Scotland Group PLC – $30.4 billion
17. Société Générale – $1.3 billion

These complaints were filed in federal or state court in New York or the federal court in Connecticut. The complaints seek damages and civil penalties under the Securities Act of 1933, similar in content to the complaint FHFA filed against UBS Americas, Inc. on July 27, 2011. In addition, each complaint seeks compensatory damages for negligent misrepresentation. Certain complaints also allege state securities law violations or common law fraud. [read full FHFA release]

You can read the suits filed against each individual bank here. For some more information read Bloomberg: BofA, JPMorgan Among 17 Banks Sued by U.S. for $196 Billion. Noticeably absent from the list of companies being sued is Wells Fargo.

And the suits just keep coming…

BofA sued over $1.75 billion Countrywide mortgage pool

Bank of America Corp (BAC.N) was sued by the trustee of a $1.75 billion mortgage pool, which seeks to force the bank to buy back the underlying loans because of alleged misrepresentations in how they were made. The lawsuit by the banking unit of US Bancorp (USB.N) is the latest of a number of suits seeking to recover investor losses tied to risky mortgage loans issued by Countrywide Financial Corp, which Bank of America bought in 2008. In a complaint filed in a New York state court in Manhattan, U.S. Bank said Countrywide, which issued the 4,484 loans in the HarborView Mortgage Loan Trust 2005-10, materially breached its obligations by systemically misrepresenting the quality of its underwriting and loan documentation. [read more]

Bank of America kept AIG legal threat under wraps

Top Bank of America Corp lawyers knew as early as January that American International Group Inc was prepared to sue the bank for more than $10 billion, seven months before the lawsuit was filed, according to sources familiar with the matter. Bank of America shares fell more than 20 percent on August 8, the day the lawsuit was filed, adding to worries about the stability of the largest U.S. bank…. The bank made no mention of the lawsuit threat in a quarterly regulatory filing with the U.S. Securities and Exchange Commission just four days earlier. Nor did management discuss it on conference calls about quarterly results and other pending legal claims. [read more]

Nevada Lawsuit Shows Bank of America’s Criminal Incompetence

As we’ve stated before, litigation by attorney general is significant not merely due to the damages and remedies sought, but because it paves the way for private lawsuits. And make no mistake about it, this filing is a doozy. It shows the Federal/state attorney general mortgage settlement effort to be a complete travesty. The claim describes, in considerable detail, how various Bank of America units engaged in misconduct in virtually every aspect of its residential mortgage business. [read more]

Nevada Wallops Bank of America With Sweeping Suit; Nationwide Foreclosure Settlement in Peril

The sweeping new suit could have repercussions far beyond Nevada’s borders. It further jeopardizes a possible nationwide settlement with the five largest U.S. banks over their foreclosure practices, especially given concerns voiced by other attorneys general, New York’s foremost among them…. In a statement, Bank of America spokeswoman Jumana Bauwens said reaching a settlement would bring a better outcome for homeowners than litigation. “We believe that the best way to get the housing market going again in every state is a global settlement that addresses these issues fairly, comprehensively and with finality. [read more]

FDIC Objects to Bank of America’s $8.5 Billion Mortgage-Bond Accord

The Federal Deposit Insurance Corp. is objecting to Bank of America Corp. (BAC)’s proposed $8.5 billion mortgage-bond settlement with investors, joining investors and states that are challenging the agreement. The FDIC owns securities covered by the settlement and said it doesn’t have enough information to evaluate the accord, according to a filing today in federal court in Manhattan. Bank of America has agreed to pay $8.5 billion to resolve claims from investors in Countrywide Financial mortgage bonds. The settlement was negotiated with a group of institutional investors and would apply to investors outside that group. [read more]

Fed asks Bank of America to list contingency plan: report

The Federal Reserve has asked Bank of America Corp to show what measures it could take if business conditions worsen, the Wall Street Journal said, citing people familiar with the situation. BofA executives recently responded to the unusual request from the Federal Reserve with a list of options that includes the issuance of a separate class of shares tied to the performance of its Merrill Lynch securities unit, the people told the paper. Bank of America and the Fed declined to comment to the Journal. Both could not immediately be reached for comment by Reuters outside regular U.S. business hours. [
read more]

Bombshell Admission of Failed Securitization Process in American Home Mortgage Servicing/LPS Lawsuit

Wow, Jones Day just created a huge mess for its client and banks generally if anyone is alert enough to act on it. The lawsuit in question is American Home Mortgage Servicing Inc. v Lender Processing Services. It hasn’t gotten all that much attention (unless you are on the LPS deathwatch beat) because to most, it looks like yet another beauty contest between Cinderella’s two ugly sisters. AHMSI is a servicer (the successor to Option One, and it may also still have some Ameriquest servicing).

AHMSI is mad at LPS because LPS was supposed to prepare certain types of documentation AHMSI used in foreclosures. AHMSI authorized the use of certain designated staffers signing with the authority of AHSI (what we call robosinging, since the people signing these documents didn’t have personal knowledge, which is required if any of the documents were affidavits). But it did not authorize the use of surrogate signers, which were (I kid you not) people hired to forge the signatures of robosigners. The lawsuit rather matter of factly makes a stunning admission… [read more]

Fraudclosure: MERS Case Filed With Supreme Court

Before readers get worried by virtue of the headline that the Supreme Court will use its magic legal wand to make the dubious MERS mortgage registry system viable, consider the following:

1. The Supreme Court hears only a very small portion of the cases filed with it, and is less likely to take one with these demographics (filed by a private party, and an appeal out of a state court system, as opposed to Federal court). This case, Gomes v. Countywide, was decided against the plaintiff in lower and appellate court and the California state supreme court declined to hear it

2. If MERS or the various servicers who have had foreclosures overturned based on challenges to MERS thought they’d get a sympathetic hearing at the Supreme Court, they probably would have filed some time ago. MERS have apparently been settling cases rather than pursue ones where it though the judge would issue an unfavorable precedent

3. The case in question, from what the experts I consulted with and I can tell, is not the sort the Supreme Court would intervene in based on the issue raised, which is due process (14th Amendment). But none of us have seen the underlying lower and appellate court cases, and the summaries we’ve seen are unusually unclear as to what the legal argument is. [read more]

Iowa Says State AG Accord Won’t Release Banks From Liability

The 50-state attorney general group investigating mortgage foreclosure practices won’t release banks from all civil, or any criminal, liability in a settlement, Iowa Attorney General Tom Miller said. [read more]

Fed Launches New Formal Enforcement Action Against Goldman Sachs To Review Foreclosure Practices

The Federal Reserve Board has just launched a formal enforcement action against Goldman Sachs related to Litton Loan Services. Litton Loan is the nightmare-ridden mortgage servicing unit, a subsidiary of Goldman, that Goldman has been trying to sell for months. They penned a deal to recently, but the Fed stepped in and required Goldman to end robo-signing taking place at the unit before the sale could be completed. Sounds like this enforcement action is an extension of that requirement. [read more]

Goldman Sachs, Firms Agree With Regulator To End ‘Robo-Signing’ Foreclosure Practices

Goldman Sachs and two other firms have agreed with the New York banking regulator to end the practice known as robo-signing, in which bank employees signed foreclosure documents without reviewing case files as required by law, the Wall Street Journal said. In an agreement with New York’s financial-services superintendent, Goldman, its Litton Loan Servicing unit and Ocwen Financial Corp also agreed to scrutinize loan files for evidence they mishandled borrowers’ paperwork and to cut mortgage payments for some New York homeowners, the Journal said. [read more]

Banks still robo-signing, filing doubtful foreclosure documents

Reuters has found that some of the biggest U.S. banks and other “loan servicers” continue to file questionable foreclosure documents with courts and county clerks. They are using tactics that late last year triggered an outcry, multiple investigations and temporary moratoriums on foreclosures. In recent months, servicers have filed thousands of documents that appear to have been fabricated or improperly altered, or have sworn to false facts. Reuters also identified at least six “robo-signers,” individuals who in recent months have each signed thousands of mortgage assignments — legal documents which pinpoint ownership of a property. These same individuals have been identified — in depositions, court testimony or court rulings — as previously having signed vast numbers of foreclosure documents that they never read or checked. [read more]

JPMorgan fined for contravening Iran, Cuba sanctions

JPMorgan Chase Bank has been fined $88.3 million for contravening US sanctions against regimes in Iran, Cuba and Sudan, and the former Liberian government, the US Treasury Department announced Thursday. The Treasury said that the bank had engaged in a number of “egregious” financial transfers, loans and other facilities involving those countries but, in announcing a settlement with the bank, said they were “apparent” violations of various sanctions regulations. [read more]

This Is Considered Punishment? The Federal Reserve Wells Fargo Farce

What made the news surprising, of course, was that the Federal Reserve has rarely, if ever, taken action against a bank for making predatory loans. Alan Greenspan, the former Fed chairman, didn’t believe in regulation and turned a blind eye to subprime abuses. His successor, Ben Bernanke, is not the ideologue that Greenspan is, but, as an institution, the Fed prefers to coddle banks rather than punish them.

That the Fed would crack down on Wells Fargo would seem to suggest a long-overdue awakening. Yet, for anyone still hoping for justice in the wake of the financial crisis, the news was hardly encouraging. First, the Fed did not force Wells Fargo to admit guilt — and even let the company issue a press release blaming its wrongdoing on a “relatively small group.”

The $85 million fine was a joke; in just the last quarter, Wells Fargo’s revenues exceeded $20 billion. And compensating borrowers isn’t going to hurt much either. By my calculation, it won’t top $20 million. [read more]

Exclusive: Regulators seek high-frequency trading secrets

U.S. securities regulators have taken the unprecedented step of asking high-frequency trading firms to hand over the details of their trading strategies, and in some cases, their secret computer codes. The requests for proprietary code and algorithm parameters by the Financial Industry Regulatory Authority (FINRA), a Wall Street brokerage regulator, are part of investigations into suspicious market activity, said Tom Gira, executive vice president of FINRA’s market regulation unit. [read more]

And here’s part of the Collapse Roundup I wrote on August 25th, referenced in the beginning of this report – as you will see, I would probably make a lot more money as an investment adviser:

Collapse Roundup #5: Goliath On The Ropes, Big Banks Getting Hit Hard, It’s A “Bloodbath” As Wall Street’s Crimes Blow Up In Their Face

Collapse Roundup #5: Goliath On The Ropes, Big Banks Getting Hit Hard, Banking Cartel's Crimes Blowing Up In Their FaceTime to put your Big Bank shorts on! Get ready for a run…

The chickens are coming home to roost. Reality is catching up with the market riggers (Fed, ECB, PPT, CIA) and the “too big to fail” banks are getting whacked. Trillions of dollars in bailouts and legalized (FASB) accounting fraud cannot save these insolvent zombie banks any longer. The Grim Reaper is on the horizon and his sickle will do what paid off politicians won’t, cut ‘em down to size. So get your silver stake ready, time to plunge it into their vampire squid hearts….

What about Warren Buffet? He saved Goldman Sachs with a bailout in 2008. Can he save Bank of America?…

Warren’s bailout will help BofA over the short run, but $5 billion is just a drop in the bucket when it comes to their problems. The only thing his $5 billion will accomplish is a temporary run up in stock value so everyone who has been killed on the plummeting stock price can then jump out without complete loss….

Trouble a-comin’…

Goldman Sachs TANKS After CEO Lloyd Blankfein Hires Famous Defense Lawyer

Collapse Roundup #5: Goliath On The Ropes, Big Banks Getting Hit Hard, Banking Cartel's Crimes Blowing Up In Their FaceIs the Goldman Sachs CEO facing a new lawsuit?

The market seems to think so. Goldman Sachs just tanked in minutes before the close after news that Lloyd Blankfein hired a lawyer famous for defending vilified execs. It’s back up a bit since dropping over 5%, but the news is still concerning.

It’s unclear whether the lawyer is for him, Goldman Sachs, or both, but Goldman Sachs’s CEO Lloyd Blankfein hired Reid Weingarten, a high profile defense attorney who says “I’m used to these monstrously difficult cases where everybody hates my clients,” according to Reuters.

Reuters says the hire might have something to do with accusations of Blankfein’s committing perjury. Or something else:

One former federal prosecutor, who was not authorized to speak publicly, said Blankfein may have hired outside counsel after receiving a request from investigators for documents or other information. [read full report]

Speaking of hiring lawyers…

The Global Banking Cartel’s Crimes Are Being Exposed Left & Right…

Blowing Up In Their Face… Prepare for Shock & Awe…

BOOM! Moody’s exposed:

MOODY’S ANALYST BREAKS SILENCE: Says Ratings Agency Rotten To Core With Conflicts

A former senior analyst at Moody’s has gone public with his story of how one of the country’s most important rating agencies is corrupted to the core.

The analyst, William J. Harrington, worked for Moody’s for 11 years, from 1999 until his resignation last year.

From 2006 to 2010, Harrington was a Senior Vice President in the derivative products group, which was responsible for producing many of the disastrous ratings Moody’s issued during the housing bubble.

Harrington has made his story public in the form of a 78-page “comment” to the SEC’s proposed rules about rating agency reform….

Here are some key points:

* Moody’s ratings often do not reflect its analysts’ private conclusions. Instead, rating committees privately conclude that certain securities deserve certain ratings–but then vote with management to give the securities the higher ratings that issuer clients want.

* Moody’s management and “compliance” officers do everything possible to make issuer clients happy–and they view analysts who do not do the same as “troublesome.” Management employs a variety of tactics to transform these troublesome analysts into “pliant corporate citizens” who have Moody’s best interests at heart.

* Moody’s product managers participate in–and vote on–ratings decisions. These product managers are the same people who are directly responsible for keeping clients happy and growing Moody’s business.

* At least one senior executive lied under oath at the hearings into rating agency conduct. Another executive, who Harrington says exemplified management’s emphasis on giving issuers what they wanted, skipped the hearings altogether. [read full report]

BOOM! The SEC Caught Covering Up Wall Street Crimes:

Matt Taibbi Exposes How SEC Shredded Thousands of Investigations

An explosive new report in Rolling Stone magazine exposes how the U.S. Securities and Exchange Commission destroyed records of thousands of investigations, whitewashing the files of some of the nation’s largest banks and hedge funds, including AIG, Wells Fargo, Lehman Brothers, Goldman Sachs, Bank of America and top Wall Street broker Bernard Madoff. Last week, Republican Sen. Chuck Grassley of Iowa said an agency whistleblower had sent him a letter detailing the unlawful destruction of records detailing more than 9,000 information investigations. We speak with Matt Taibbi, the political reporter for Rolling Stone magazine who broke this story in his latest article….

KA-BOOM! The Fed And All Their Crony-Capitalist Cartel Members Exposed, Yet Again:

Wall Street Pentagon Papers Part III – Are The Federal Reserve’s Crimes Still Too Big To Comprehend?

Collapse Roundup #5: Goliath On The Ropes, Big Banks Getting Hit Hard, Banking Cartel's Crimes Blowing Up In Their FaceAnother day, another trillion plus in secret Federal Reserve “bailouts” revealed. Bloomberg News exposes this latest Fed “deal” after winning a long Freedom of Information Act (FOIA) legal battle to get the details on what was done with the American people’s money. Their report runs with an AmpedStatus style headline: “Wall Street Aristocracy Got $1.2 Trillion From Fed.”

The aristocracy is alive and well… thanks to the Fed, of course.

Keep in mind, this $1.2 trillion is in addition to the $16 trillion the Government Accountability Office (GAO) audit revealed and the over $2 trillion in Quantitative Easing the Fed dished out, not to mention the now continued promise of the Zero Interest Rate Policy (ZIRP). This is also separate from the $700 billion TARP program that Congress approved. This is yet another unknown secret program, throwing another mere $1.2 trillion in public money at the Wall Street elite (global banking cartel), just being revealed now.

Those of us paying attention over the past three years have had Fed crony-capitalism on steroids fatigue for awhile now. Nonetheless, this is deja vu all over again as another mindbogglingly huge story that must be covered comes to light.

Here are the details of this latest revelation:

[read full report]

Speaking of the $16 trillion GAO audit…

BOOM! GAO audit exposed, missing some vital details:

More on how the GAO’s Fed audit failed to disclose some dirty secrets about BlackRock and JP Morgan

In its review of the Fed’s outsourcing practices, it failed to mention the most damaging and suspicious sole-source (no bid) contract awarded to BlackRock, which was for handling the New York Fed’s toxic Bear Stearns portfolio, otherwise known as Maiden Lane. This contract would generate $108,000,000 in fees and was one of the largest awarded during the bailout period, but it might also have saved JP Morgan $1.1 billion in losses from its Bear Stearns acquisition….

Also, BlackRock was also one of the managers of the NY Fed’s separate $1.25 trillion MBS purchase program as part of QE1. Contrary to the lie on the NY Fed’s webpage (that the MBS auctions were conducted via competitive bidding), the NY Fed’s own purchasing manager, Brian Sack, admitted in a paper that, “the MBS purchases were arranged with primary dealer counterparties directly, [and] there was no auction mechanism to provide a measure of market supply.”

Putting it all together, it looks like Jamie Dimon signed off on hiring BlackRock for no justifiable reason to trade the very Maiden Lane portfolio that could have caused his bank, JP Morgan, to lose up to $1.1 billion. And, it was entirely possible that BlackRock saved the portfolio by trading the MBS portion of ML with the New York Fed directly as QE1 was underway. [read full report]

BOOM! Bear Stearns exposed:

Report Says Bear Stearns Executives Sold Illegal RMBS and Covered It Up

Former back office employees from Bear Stearns are coming out of the woodwork to explain how Tom Marano’s mortgage group cheated their own clients out of billions. This week I reported at The Distressed Debt Report, EMC insiders say they were told to make up the classification for whole loans, packaged into mortgage securities, to get them switched out of the trust. By classifying the loans as ‘prepaid’ or having ‘subsequent recoveries’ Bear employees were able to fool the trustee into giving them back loans they were not able to legally service. A move New York Attorney General Eric Schneiderman is actively investigating now.

In my latest DealFlow story we hear from EMC staffers who describe how subprime loans, that would have been sold by Bear Stearns trader Jeff Verschleiser’s team, never had a proper servicing license in West Virginia when they were packaged into the residential mortgage backed security. In 2003 Bear/EMC put $100 million of subprime loans from West Virginia into a few RMBS transactions. EMC, the banks wholly owned mortgage servicing shop, would service all of Bear’s RMBS after they were sold.

A year latter, when senior executies realized the mishap instead of Bear going out and informing their regulator and applying for a license, they orchestrated a cover up and even threaten EMC employees not to talk about it. [read full report]

The big banks are getting lit up!

You shall reap what you sow.

Karma is a … bit@h. [read full report]

Let’s end with this video. We need to keep in mind that the Federal Reserve has known about all of this criminal activity from the start. Yet, they have done everything they could, and are still trying, to keep this criminal operation up and running. As all these criminal banks begin to blow up, let’s not forget who their central bank is and what they have done to the American people.

Cenk, take it away and drive the point home:

– David DeGraw is the founder and editor of AmpedStatus.com. His long-awaited book, The Road Through 2012: Revolution or World War III, will finally be released on September 28th. He can be emailed at David[@]AmpedStatus.com. You can follow David’s reporting daily on his new personal website: DavidDeGraw.org

~ We are fighting to remain 100% independent, completely free from partisan influence. If you respect our work, please donate to support our efforts here.

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Eighth Circuit BAP Allows Strip Off of Wholly Unsecured Lien in Chapter 20 (7+13)

The Eighth Circuit BAP found that a chapter 13 debtor may strip off a wholly unsecured lien on his principal residence even where the debtor is otherwise not entitled to discharge. In re Fisette, 11-6012 (B.A.P. 8th Cir., August 29, 2011). In so holding the court joined the majority of Circuit and BAP courts that have held that the reasoning in Nobelman v. Am. Savings Bank, 508 U.S. 324 (1993) establishes the right to strip off wholly unsecured residential liens. Turning to the issue of whether ineligibility for discharge under section 1328(f)(1) precludes the otherwise permissible lien stripping, the court stated: “We hold that the strip off of a wholly unsecured lien on a debtor’s principal residence is effective upon completion of the debtor’s obligations under his plan, and it is not contingent on his receipt of a Chapter 13 discharge.” Unlike the courts that have found that section 1325(a)(5) precludes lien-stripping in a chapter 20, the Fisette court found that, pursuant to the statutory language, the requirements of section 1325(a)(5) were not applicable to a lien which was unsecured. The court concluded its analysis with a finding that the creditors whose liens were stripped would be entitled to distribution of the estate along with the other unsecured creditors.

$196 Billion LawsuitAgainst 17 Banks

FHA Files a $196 Billion LawsuitAgainst 17 Banks
The Federal Housing Finance Agency (FHFA), as conservator forFannie Mae and Freddie Mac (the Enterprises), today filed lawsuitsagainst 17 financial institutions, certain of their officers and variousunaffiliated lead underwriters. The suits allege violations of federalsecurities laws and common law in the sale of residential private-label mortgage-backed securities (PLS) to the Enterprises.Complaints have been filed against the following lead defendants, inalphabetical order:1. Ally Financial Inc. f/k/a GMAC, LLC – $6 billion2. Bank of America Corporation – $6 billion3. Barclays Bank PLC – $4.9 billion4. Citigroup, Inc. – $3.5 billion5. Countrywide Financial Corporation -$26.6 billion6. Credit Suisse Holdings (USA), Inc. – $14.1 billion7. Deutsche Bank AG – $14.2 billion8. First Horizon National Corporation – $883 million9. General Electric Company – $549 million10. Goldman Sachs & Co. – $11.1 billion11. HSBC North America Holdings, Inc. – $6.2 billion12. JPMorgan Chase & Co. – $33 billion13. Merrill Lynch & Co. / First Franklin Financial Corp. – $24.8 billion14. Morgan Stanley – $10.6 billion15. Nomura Holding America Inc. – $2 billion16. The Royal Bank of Scotland Group PLC – $30.4 billion17. Société Générale – $1.3 billion
Some links to actual lawsuits:
Here is the press release from FHFA:

If the loan was not perfected; then there is no lien; and if the servicer was obligated to make the payment as a co-obligor; then there was no default

SEE 42-in RE Cruz vs Aurora
AURORA LOAN SERVICES LLC, SCME MORTGAGE BANKERS INC, ING BANK FSB, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS ALL BITE THE DUST, SUBJECT TO LIABILITY AND NO ABILITY TO FORECLOSE WITHOUT COMPLYING WITH LAW.
Salient points of Judge Mann’s Decision:

TRUTH IN LENDING was dismissed because they were time-barred. LESSON: Don’t ignore TILA claims or TILA audits. Get a forensic Analysis as early as possible, assert them immediately, assert rescission as soon as possible. TILA has teeth, but if you assert it late in the game.
YOU CAN’T FORECLOSE ON UNRECORDED INSTRUMENTS: Judge Mann came right out and said the California Supreme Court would not and could not decide otherwise. Any other holding would defeat the purpose of recording and create uncertainty in the marketplace. This will cause a lot of grief to pretenders. It is getting harder for them to come up with people who are willing to lie, forge or fabricate documents. Getting a notary to affix their signature and seal will soon be a thing of the past unless the signature, the person and the document is real.
THE ASSUMPTION THAT THE LOAN IS IN DEFAULT IS STILL A PROBLEM: As long as lawyers and pro se litigants are willing to concede that the obligation was in default, they are giving up their largest chip — i.e., that the loan was not in default and the loan was not subject to a perfected lien for the same reason that the court cites in its opinion. Our loan level analysis shows repeatedly that in most cases the servicer is continuing to make payments and reporting to investors that the loan is performing even as they send delinquency letter’s notices of default and notices of sales. The Court missed this point because nobody brought it up. Don’t expect the Court to do your work for you. If you have reason to believe that the servicer is still paying on your loan you should be stating that the loan is not in de fault, denying any delinquency to the creditor and objecting to any action that is based upon the premise of “default.” Note that if the servicer is paying your bills, the servicer MIGHT have a right of action against you, but it certainly isn’t under the terms of the note or mortgage.
THE ASSUMPTION THAT A VALID PERFECTED MORTGAGE LIEN EXISTS IS STILL A PROBLEM: Again, the problem is not with the Courts but with the lawyers and pro se litigants who simply assume that this is not an issue. Put yourself in the banks’ shoes. If all you had were nominees for undisclosed principals on the note and mortgage would you be OK with that? No? Then the lien was never perfected, which means for legal purposes it doesn’t exist. Just because it shows in black and white doesn’t make it true. LESSON: Deny the lien exists, deny it was perfected and make them prove how it was perfected. They can’t. In most cases neither the mortgage originator nor the nominee beneficiary (MERS) had a disclosed lender or beneficiary, nor did they incorporate the real terms of the payment to the investor/lenders. If this was a law school exam and the student wrote that the loan was perfected, the grade would be “F”.
THE ISSUE OF FEDERAL PREEMPTION AND THEREFORE JURISDICTION AND VENUE ARE STILL IN FLUX: This Judge found that federal preemption prevents the homeowner from alleging TILA as state claims. The courts are not decided on this and the issue of res judicata and Rooker -Feldman will come into play once the issue is really resolved with finality. Beware then how you assert a claim and that you don’t let the statute of limitations run out by failing to assert the right claim under TILA in the right court. better to get dismissed than to find out that you are time-barred.
WRONGFUL FORECLOSURE IS A TITLE ISSUE NOT A FAIRNESS OR TECHNICAL ISSUE: Judge Mann, correctly in my opinion, states that an assignment from MERS must be allowed in order to clear up title. But, she states that without recording an interest within the chain of title, you have no right to foreclose under the states recording laws. I think this is right, and I think it applies in all 50 states. LESSON: Plead your wrongful foreclosure, slander of title and quiet title cases as title cases and stop adding extra things that you think may them juicier. Either the title is right or it is wrong. There is no middle ground.
MERS ISSUE IS STILL OBSCURE: While the assignment from MERS, if recorded clears up one part it leaves another part undecided again because it wasn’t raised properly. There is a difference between “bare record title” and an “interest in the land.” The MERS assignment is like a quit-claim deed from someone without any interest in the land and used to clear up the chain of title on paper, but it does not convey any interest. MERS on its website and in the public domain specifically disclaims any interest in the obligation, note or mortgage. That is its selling point to members who use its “Service.” And that is why it can’t foreclose and it is subject to cease and desist orders from regulators. As with other affidavits or quit-claims to clear up apparent clouds on title, the recorded assignment or quitclaim does nothing to convey a larger interest than that possessed by the grantor. LESSON: If the pretenders want to foreclose they can’t rely on the MERS assignment. They must file a credible affidavit that states that the affiant was the undisclosed principal in the original transaction with the borrower and that it joins in or separately assigns the actual interest in the obligation, note or mortgage. In my opinion, this is the only way to perfect the original “lien.” Whether it will relate back to the original transaction is an issue the courts must decide.
NO DIFFERENCE BETWEEN A DEED OF TRUST AND A MORTGAGE: Pretenders who try to elevate a deed of trust above a mortgage are headed for a brick wall. Courts never liked non-judicial foreclosure in the first place. They are not about to to reverse centuries of law and provide higher status to a non-judicial foreclosure or the instruments that allow it. ONLY the statutes that provide for extra care on the part of the trustee are constitutional, since due process is the only way anyone in this country can be deprived of life, liberty or property. LESSON: Pound on the issue that the pretender cannot prevail in a judicial foreclosure so they are trying to get away with it in a non-judicial foreclosure. If you want to see how this will eventually unfold, look at Florida and other states that had similar issues in their “Contracts for deed.” Despite clear contractual language the courts have universally held they are mortgages and that they must be foreclosed as mortgages.

Tim McCandless Blogs its amazing what you can do if you don’t watch TV

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Mortgage Assignments to Washington Mutual Trusts Are Fraudulent

Posted on August 7, 2011 by Neil Garfield
EDITOR’S NOTE: We know the foreclosures were gross misrepresentations of fact to the Courts, to the Borrowers and to the Investors. This article shows the crossover between the MegaBanks — sharing and diluting the responsibility for these fabrications as they went along. If you are talking about one big bank you are talking about all the megabanks.
The evidence is overwhelming. The reasons are many. But the fundamental theme here is that Banks are committing widespread fraud using the appearance of credibility just because they are banks.
Thus the strategy of pushing hard in discovery and persevering through adverse rulings appears to be getting increasing traction. Every time anyone, including judges, take a close look at this mess the conclusion is the same — the Banks’ foreclosures have been a sham. The homeowners still legally own their home and the lien is unenforceable or non-existent.
What part of the obligation of the borrower still exists? To whom is it payable? These are questions the Banks as servicers refuse to answer. It’s a simple set of questions that never had any bite to them until now.
From Lynn Symoniak
Mortgage Fraud
Bank of America
JP Morgan Chase
Lender Processing Services
WaMu Trusts
Washington Mutual
WMABS Trusts
WMALT Trusts
Action Date: August 6, 2011
Location: Jacksonville, FL
An examination of over 5,000 Mortgage Assignments to Washington Mutual
Trusts shows that these Trusts (WaMu, WMALT and WMABS) used Mortgage
Assignments signed by employees of JP Morgan Chase to foreclose. The
most prolific of the Chase signers, all from Jacksonville, Florida,
include Elizabeth Boulton, Margaret Dalton, Barbara Hindman, Patricia
Miner, Roderick Seda and Shelley Thieven. These Chase employees sign
as MERS officers on behalf of at least 30 different mortgage companies
to convey mortgages AND NOTES to Washington Mutual trusts that closed
years earlier.
In the vast majority of these cases, Bank of America is the Trustee.
Because the original loan documents are missing, Bank of America
allows Chase to make up new documents as needed to foreclose. The vast
majority of these Assignments state that the Trusts acquired these
mortgages in 2009 and 2010.
There are two separate frauds here:
1. not having the documents despite the promises to investors that the
documents were obtained and safely held; and
2. fabricating the replacement documents to foreclose.
In almost every case, Bank of America is the Trustee.
Did the FDIC just not notice any of this? There are thousands of these
specially-made Assignments signed by Chase employees for WaMu, WMALT
and WMABS trusts used across the country.
When Bank of America did not use documents fabricated by Chase to
foreclose, it used documents fabricated by LPS in Dakota County, MN.

A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN ‘T EXIST

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

I then began looking at many other securitized trusts in the EDGAR database. Literally dozens and dozens of these securitized trusts have done exactly the same thing. The trust is established and appropriate SEC documents are filed for a period of time, usually 1 or 2 years. The trust then files a Form 15 claiming exemption of the obligation to file reports with the SEC under 15d-6
The paper trail for the Trust with the SEC thereby ends. Many of these trusts have not filed anything with the SEC for years. Many as far back as 2005 and 2006. Some of the SEC Form 15d-6 filings disclosed as few as 15 or less investors . Bear in mind, these are for trusts that purportedly hold well over $1 BILLION in mortgages, and there are dozens and dozens of these trusts with a mere hand full of investors! I also noted that the agents of record of many of these trusts have changed many times, and are very infrequently named, but list only an address and phone number, (usually in New York). In several of the cases I ‘ve looked at in the EDGAR database, I actually called some of the phone number listed at 3:00am EST and got the voicemail of someone at a bank in N.Y. Note that the answering party was NEVER a bank listed as the Trustee, (as Deutsche Bank is in my case), or the trust administrator as listed in the PSA or any subsequent SEC filings. I actually got the voicemail of some fellow at HSBC Bank who was the anonymous contact in my case! My point is this — Has anyone actually verified that the securitized trusts claimed to be under the trusteeship of some of these banks still ACTUALLY EXIST? We ‘ve been so focused on the NOTE and the fraudulent paper being slung about for assignment of those notes, and whether or not the plaintiff has standing to bring the foreclosure action, has anyone thought to see if the plaintiff trust is even still active or not? Were many of these trusts actually dissolved after payouts from credit default swaps and TARP funds and the actual investors now long gone? We have no records to show whether they are alive or dead. Most of these trusts haven ‘t filed anything with anyone in years as far as I can tell. Certainly, as in my case, Deutsche Bank, (as Trustee), still exists, but can these plaintiff securitized trusts be made to prove they still exist? What happens to a foreclosure case if the plaintiff entity,(the securitized trust, not the Trustee for it), no longer exists or cannot prove it exists? IT ‘S TIME FOR ME TO GET BACK TO AN ISSUE THAT I HAVEN ‘T TALKED ABOUT FOR A WHILE AND IT IS THIS CAPACITY ISSUE BECAUSE IT STRIKES AT THE HEART OF THESE CASES. SIMPLY PUT, A TRUSTEE CANNOT MAINTAIN AN ACTION ON BEHALF OF A TRUST THAT DOESN ‘T EXIST.