From: Charles Cox [mailto:charles@bayliving.com] Sent: Wednesday, November 21, 2012 5:57 AM To: Charles Cox Subject: National Mortgage Database – Promoting the MERS Infection and Model – The Evisceration of State’s Rights Continues
U.S. Federal Housing Finance Agency and Consumer Financial Protection Bureau announce plans for a new national mortgage database
· Patrick D. Dolan , Robert H. Ledig, Ralph R. Mazzeo and Gordon Miller
· USA
·
· November 14 2012
The Federal Housing Finance Agency (FHFA) and the Consumer Financial Protection Bureau (CFPB) have agreed to collaborate to create a National Mortgage Database to chart housing market trends and support policymaking and research efforts. The database is also intended to fulfill a requirement under the Housing and Economic Recovery Act of 2008 for the FHFA to conduct a monthly mortgage market survey.
The mortgage database, which will date back to 1998, will be updated on a monthly basis and will include information such as the borrower’s financial and credit profile; the mortgage product and terms; the property purchased or refinanced; and the ongoing payment history of the loan. The database will create datasets on mortgages by matching informational files, such as property valuation models, to a nationwide sampling of credit bureau files on borrowers’ mortgages and payment histories.
Goals for the Creation of the Mortgage Database
While multiple state and federal databases and private databases currently exist, the FHFA and the CFPB intend to create one large, comprehensive database concerning the mortgage market to accomplish the following goals:
Streamline data for research and policy purposes;
Monitor the health of mortgage markets and consumers by providing detailed mortgage loan performance information regarding payments, modifications, foreclosures and bankruptcies;
Better understand consumer decision making through the use of surveys;
Monitor the volume and performance of new and emerging products in the mortgage market;
Increase transparency regarding first and second mortgages outstanding to a particular borrower and how they are performing; and
Better understand emerging borrower trends and overall consumer debt burdens by providing information regarding a borrower’s other debt obligations.
Concerns Regarding the Database
The FHFA stated that the database will not contain personally identifiable information and that appropriate precautions will be taken by the agencies to ensure that individual consumers cannot be identified through the database or any datasets that may be available to researchers or the public. However, observers have expressed concerns with regard to the level of detailed borrower information that the agencies intend to collect and include in the database, and how the information will be used. Market participants also worry that the database may increase burdens on lenders by requiring them to hire additional personnel to compile information for the government, and expose lenders to potential liability regarding the accuracy of such information.
Conclusion
The FHFA and the CFPB have signed an Inter-Agency Agreement regarding the terms for developing, maintaining and funding the database, and expect an early version of the full dataset to be complete in 2013.
From: Charles Cox [mailto:charles@bayliving.com] Sent: Wednesday, November 28, 2012 6:23 AM To: Charles Cox Subject: Moynihan Depo
Matt Taibbi; Rolling Stone Politics:
Thank God for Bank of America CEO Brian Moynihan. If you’re a court junkie, or have the misfortune (as some of us poor reporters do) of being forced professionally to spend a lot of time reading legal documents, the just-released Moynihan deposition in MBIA v. Bank of America, Countrywide, and a Buttload of Other Shameless Mortgage Fraudsters will go down as one of the great Nixonian-stonewalling efforts ever, and one of the more entertaining reads of the year.
In this long-awaited interrogation – Bank of America has been fighting to keep Moynihan from being deposed in this case for some time – Moynihan does a full Star Trek special, boldly going where no deponent has ever gone before, breaking out the "I don’t recall" line more often and perhaps more ridiculously than was previously thought possible. Moynihan seems to remember his own name, and perhaps his current job title, but beyond that, he’ll have to get back to you.
The MBIA v. Bank of America case is one of the bigger and weightier lawsuits hovering over the financial world. Prior to the crash, MBIA was, along with a company called Ambac, one of the two largest and most reputable names in what’s called the "monoline" insurance business.
Bank of America: Too Crooked to Fail
The monolines sell a kind of investment insurance – if you invest in a municipal bond or in mortgage-backed securities backed or "wrapped" by a monoline, you have backing in case the investment goes south. If a municipality defaults on its bond payments, or homeowners in a mortgage-backed security default on their mortgage payments, the investors in those instruments can collect from the monoline insurer.
When companies like Countrywide issued their giant piles of crappy subprime mortgages and then chopped them up and turned them into AAA-rated securities to sell to suckers around the world, they often had these mortgage-backed securities insured by companies like MBIA or Ambac, to make their customers feel doubly safe about investing in their product.
The pitch firms like Countrywide made went like this: not only are these mortgages triple-A rated by reputable ratings agencies like Moody’s, they’re fully insured by similarly reputable insurance companies like MBIA. You can’t lose!
With protection like that, why shouldn’t your state pension fund or foreign trade union buy billions’ worth of these mortgage-backed products? It’s not like it would ever turn out that Countrywide made those products by trolling the cities of America stuffing mortgages in the pockets of anything with a pulse.
After 2007-8, when all of those mortgage-backed securities started blowing up, suddenly all of those insurance companies started having to pay out billions in claims. Ambac went bankrupt and MBIA was downgraded from AAA to near-junk status. The entire monoline industry was shattered.
The analogy one could make is that Countrywide sold a million flood-insured houses in New Orleans and Biloxi even though they could already see Katrina gathering in the Caribbean. Then, after the storm, the insurers decided to sue.
MBIA sued Bank of America (which acquired Countrywide in 2008), claiming that Countrywide lied to MBIA about its supposedly strict underwriting standards, when in fact the firm was cranking out mortgages hand over fist, without doing any real due diligence at all. (Whether the monolines should have known better, or its agents perhaps did know better and sold the mountains of insurance anyway, is another matter). In its suit, MBIA claimed that Countrywide turned itself into a veritable machine of mortgage approvals:
Countrywide Home Loans’ senior management imposed intense pressure on underwriters to approve mortgage loans, in some instances requiring underwriters to process 60 to 70 mortgage loan applications in a single day and to justify any rejections…
As a result of all of this, MBIA got stuck insuring a Himalayan mountain range of dicey mortgages. When the securities those mortgages backed started to fail, MBIA ended up paying out $2.2 billion in claims, helping crack the hull of the formerly staid, solid, AAA-rated firm.
Suits like this have the whole financial world on edge. The possibility that the banks might still have to pay gigantic claims to companies like MBIA (among a wide range of other claimants) has left Wall Street in a state of uncertainty about the future of some of the better-known, Too-Big-To-Fail companies, whose already-strained balance sheets might eventually be rocked by massive litigation payouts.
In the case of Bank of America, MBIA has long wanted to depose Moynihan because it was precisely Moynihan who went public with comments about how B of A was going to make good on the errors made by its bad-seed acquisition, Countrywide. "At the end of the day, we’ll pay for the things Countrywide did," was one such comment Moynihan made, in November of 2010.
As it turns out, Moynihan was deposed last May 2. But the deposition was only made public this week, when it was filed as an exhibit in a motion for summary judgment. In the deposition, attorney Peter Calamari of Quinn Emmanuel, representing MBIA, attempts to ask Moynihan a series of questions about what exactly Bank of America knew about Countrywide’s operations at various points in time.
Early on, he asks Moynihan if he remembers the B of A audit committee discussing Countrywide. Moynihan says he "doesn’t recall any specific discussion of it."
He’s asked again: In the broadest conceivable sense, do you recall ever attending an audit committee meeting where the word Countrywide or any aspect of the Countrywide transaction was ever discussed? Moynihan: I don’t recall.
Calamari counters: It’s a multi-billion dollar acquisition, was it not?
Moynihan: Yes, it was. Well, isn’t that the kind of thing you would talk about?
Moynihan: not necessarily . . .
This goes on and on for a while, with the Bank of America CEO continually insisting he doesn’t remember ever talking about Countrywide at these meetings, that you’d have to "get the minutes." Incredulous, Calamari, a little sarcastically, finally asks Moynihan if he would say he has a good memory.
"I would – I could remember things, yes," Moynihan deadpans. "I have a good memory."
Calamari presses on, eventually asking him about the state of Countrywide when Moynihan became the CEO, leading to the following remarkable exchange, in which the CEO of one of the biggest companies in the world claims not to know anything about the most significant acquisition in the bank’s history (emphasis mine):
Q: By January 1st, 2010, when you became the CEO of Bank Of America, CFC – and I’m using the initials CFC, Countrywide Financial Corporation – itself was no longer engaged in any revenue-producing activities; is that right?
Moynihan: I wouldn’t be the best person to ask about that because I don’t know.
There are no sound effects in the transcript, but you can almost hear an audible gasp at this response. Calamari presses Moynihan on his answer.
"Sir," he says, "you were CEO of Bank Of America in January, 2010, but you don’t know what Countrywide Financial Corporation was doing at that time?"
In an impressive display of balls, Moynihan essentially replies that Bank of America is a big company, and it’s unrealistic to ask the CEO to know about all of its parts, even the ones that are multi-billion-dollar suckholes about which the firm has been engaged in nearly constant litigation from the moment it acquired the company.
"We have several thousand legal entities," is how Moynihan puts it. "Exactly what subsidiary took place [sic] is not what you do as the CEO. That is [sic] other people’s jobs to make sure."
The exasperated MBIA lawyer tries again: If it’s true that Moynihan somehow managed to not know anything about the bank’s most important and most problematic subsidiary when he became CEO, well, did he ever make an effort to correct that ignorance? "Do you ever come to learn what CFC was doing?" is how the question is posed.
"I’m not sure that I recall exactly what CFC was doing versus other parts," Moynihan sagely concludes.
The deposition rolls on like this for 223 agonizing pages. The entire time, the Bank of America CEO presents himself as a Being There-esque cipher who was placed in charge of a Too-Big-To-Fail global banking giant by some kind of historical accident beyond his control, and appears to know little to nothing at all about the business he is running.
In the end, Moynihan even doubles back on his "we’ll pay for the things Countrywide did" quote. Asked if he said that to a Bloomberg reporter, Moynihan says he doesn’t remember that either, though he guesses the reporter got it right.
Well, he’s asked, assuming he did say it, does the quote accurately reflect Moynihan’s opinion?
"It is what it is," Moynihan says philosophically.
There’s nothing surprising about any of this – it’s natural that a Bank of America executive would do everything he could to deny responsibility for Countrywide’s messes. But that doesn’t mean it’s not funny. By about the thirtieth "I don’t recall," I was laughing out loud.
It’s also more than a little infuriating. In the pre-crash years, Countrywide was the biggest, loudest, most obvious fraud in a marketplace full of them, and the legion of complainants who’ve since sued (ranging from the U.S. government to Norway’s Sovereign Wealth Fund to state pension funds in Iowa and Oregon, among others) have found it painstaking work trying to get Bank of America to do the right thing and pay back the money its subsidiary took in its various ripoffs. And with executives boasting such poor memories, this story is going to drag on and on even longer.
WASHINGTON — Deutsche Bank appears to have retaliated against a high-profile foreclosure fraud expert, whose years-long battle against her own foreclosure helped reveal a wave of apparent malfeasance, by suing her son.
The expert, Lynn Szymoniak, an attorney who specializes in white-collar crime, is widely considered on Capitol Hill to be one of the nation’s top experts on foreclosure law. When Deutsche Bank attempted to jack up the interest rate on the mortgage for her Palm Beach Gardens, Fla., home in May 2008, she contested the move, setting off an investigation which unveiled mountains of forged signatures and fraudulent bank paperwork associated with the foreclosure process.
Szymoniak alerted other attorneys, neighborhood advocates, lawmakers and the media about the apparent rampant fraud. She appeared on “60 Minutes” in April to discuss the broader foreclosure scandal .
Her own home has been in foreclosure since June 2008. A month earlier, she had been notified that the interest rate on her adjustable-rate mortgage was being raised, increasing her monthly payments by about $1,000. But the terms of her mortgage only allowed interest-rate hikes at certain dates.
In an interview with The Huffington Post, Szymoniak noted that Deutsche Bank was not acting within the allowed timeframe.
“They missed my adjustment date, and then when they figured it out, they just slapped that higher payment on anyway,” she said. “I paid one payment at the higher rate and then I said, ‘This is ridiculous.’ And I stopped paying and then they sued me in June ’08.”
After she’d been sued, Szymoniak said, she began investigating the documentation on Florida foreclosures, uncovering alarming irregularities, including signatures that were apparently forged. If so, those signatures allowed banks to push foreclosures through overly quickly, charge improper fees and assert improperly inflated borrower debts.
Shortly after appearing on “60 Minutes” Szymoniak won a major victory in her own foreclosure case. The court found that Deutsche Bank was unable to demonstrate ownership of her mortgage, which had originally been issued by the defunct subprime mortgage lender Option One, and threw the case out.
Deutsche Bank was permitted to refile their case if the bank could obtain proper documentation, however. And on Friday, May 6, Szymoniak received a notification from the bank’s lawyers that she was again being sued for foreclosure.
But Deutsche Bank wasn’t just going after her. The bank was also attempting to sue her son, Mark Cullen, who is currently pursuing a graduate degree in poetry at the New School in New York. Cullen hasn’t lived in Szymoniak’s house for seven years and is not a party to any aspect of her mortgage — he has no interest in either the property or the loan, and never has had any such interest, according to Szymoniak.
“It is just absolute harassment,” Szymoniak said. “He doesn’t own anything, for god’s sake! He’s getting a masters in poetry. He not only doesn’t have any money, he’s never going to have any money.”
And other Florida foreclosure experts say it’s difficult to interpret Deutsche Bank’s move as anything other than retaliation for Szymoniak’s media presence. If it is not, in fact, retaliation, they argue, then Deutsche Bank’s lawyers have demonstrated rank incompetence.
“It sounds crazy,” said Margery Golant, a principal with the foreclosure defense law firm of Golant & Golant PA in Florida. “I can think of no legitimate reason, if he doesn’t have some connection to the property or to the mortgage, to include him in an action to foreclosure.”
“It’s an intimidation tool,” said Matt Englett, a partner at the Florida law firm Kaufman Englett Lynd PLLC. “Most people, they get scared and they get nervous and I think that’s the effect that they’re trying to have on him and his mother.”
“If he’s not an owner of the house, it’s pretty clearly just vindictive,” said Joshua Rosner, the managing director of Graham Fisher & Co., a mortgage investment firm. “If they’re doing it intentionally, that’s one hell of a statement. If they’re doing it randomly, that’s still pretty incredible.”
The experts said the lawsuit against Szymoniak’s son could also have negative implications for him beyond the immediate costs of fighting the foreclosure case, even though he has no financial interest in anything related to it.
“He’s going to have a lawsuit out there against him,” Englett said, “so if someone were to do some kind of background check against him, that would come up.”
Watch Szymoniak’s “60 Minutes” interview:
Update:
Deutsche Bank maintains that it is not to blame, and notes that while it is legally listed as the plaintiff in the Szymoniak foreclosure case, another company directs the actual legal maneuvering.
“Pursuant to the aforementioned contracts for securitization trusts, loan servicers, and not the trustee, are responsible for foreclosure-related legal proceedings. The attorneys and law firms who oversee foreclosure proceedings on behalf of the trusts are engaged by loan servicers rather than the trustee. Loan servicers are obligated to adhere to all legal requirements, and Deutsche Bank, as trustee, has consistently informed servicers that they are required to execute these actions in a proper and timely manner,” said Deutsche Bank spokesman John Gallagher
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From: Charles Cox [mailto:charles@bayliving.com] Sent: Friday, November 16, 2012 7:54 AM To: Charles Cox Subject: Stopa: Summary Judgment for Borrowers!
Have you ever made an argument in a foreclosure case, and you think it’s a solid, well-taken argument, but there is no case law directly on point? It can create a sinking feeling. “I think I’m right, but how will I ever get a judge to agree with me when there aren’t any appellate court decisions which have ruled this way already?” The tendency, when presented with such a situation, can be to shy away from the argument. To back down. To let someone else try to make the argument first. “I don’t want to look foolish.” “I don’t want to be wrong.” “If this is such a good argument, why aren’t there any cases that have ruled this way already?”
While I understand this feeling, this is absolutely and unequivocally the wrong mindset.
As foreclosure defense lawyers, many of the issues with which we are confronted are novel. That’s just the nature of the beast. Just think of it this way – when, prior to now, in the entire history of America, have property values collapsed by half (or more), causing millions of Americans to face foreclosure, essentially all at once? Obviously, the answer is “never.” These are unprecedented times, so it should come as no surprise that, in the history of jurisprudence, our court system has never before been confronted with some of the legal issues with which we now deal on a daily basis. As a result, to defend homeowners the right way, we have no choice but to argue things we may have never argued before – to present arguments to judges they may have never heard before, for which there is no case law.
One such example? Asking a judge to enter summary judgment for a homeowner in a foreclosure case.
In Florida, I know of no appellate decisions that directly authorize this. Such case law may exist, for example, if it’s undisputed the homeowner paid the mortgage in full all along, but that’s not what I’m talking about here. I’m talking about cases where homeowners are behind on their mortgage payments, perhaps significantly behind, and the bank has filed suit for foreclosure, but the homeowner is entitled to prevail on that case anyway.
I introduced this concept a few months ago, via this blog post. In the ensuing months, I’ve made that same argument many times before Florida judges, often before judges who had never heard it before.
Sometimes, quite candidly, it’s not easy. A few times, the judge seemed to think I was nuts, at least at first, when I told the court that I wanted summary judgment for my client. Typically, however, once I get into the argument, and explain why my client should prevail, that initial skepticism is replaced with intrigue at the argument. Often, in fact, these judges have agreed with my position, entering orders granting summary judgment and dismissing the case.
Invariably, do you know what happens when I go back before that same judge a second time? Or a third time? It’s easier. The judge is familiar with the argument. The judge understands the legal issues and knows how they apply. I’m no longer the crazy lawyer asking for a client who hasn’t paid his/her mortgage to prevail, but the lawyer making sound, legitimate arguments that are perfectly consistent with the law.
Do you know what makes all of this a bit easier? When the judge I’m arguing before sees that other judges have agreed with my argument. That’s why, whenever I have a hearing on this issue, I bring the Orders I’ve obtained which entered summary judgments for my clients in other cases. It’s one thing for me to argue something – it’s another for the judge to see that 5, 10, or 15 other, Florida judges have agreed with my argument and dismissed the case as a result.
In the grand scheme of things, my “success” here is limited. I know that this argument isn’t being made everywhere in Florida. I know there are many capable judges who have yet to hear the argument. I can’t argue this for everyone.
It’s time to get the word out, folks.
Below are several of the Orders I’ve obtained upon making these arguments. By posting these Orders, I am not suggesting that the same result will happen in any particular case. That said, it’s certainly possible, and I have to think the chances for any particular homeowner will improve if/when the judge sees that numerous other, Florida judges have agreed with this argument. Hence, that’s the point here – to blaze a trail. To help everyone (including judges unfamiliar with the argument) realize this argument has worked, and can work in the future. Everyone in foreclosure-world should be aware of these arguments.
For those of you counting, that’s 14 different Florida judges who have entered summary judgment for a homeowner in a foreclosure case. (Undoubtedly there may be more of which I’m not aware.)
So take these arguments. Use them and apply them, as appropriate. Keep fighting. And, more than anything, realize that there are virtually always defenses that homeowners can utilize, even those facing foreclosure.
Charles
Charles Wayne Cox
Email: mailto:Charles
Websites: www.BayLiving.com; www.FdnPro.com and www.ForensicLoanAnalyst.com
1969 Camellia Ave.
Medford, OR 97504-5403
(541) 727-2240 direct
(541) 610-1931 eFax
Paralegal; Litigation Support and Expert Witness Services; Forensic Loan Analyst; CA Licensed Real Estate Broker.
From: Charles Cox [mailto:charles@bayliving.com] Sent: Saturday, November 17, 2012 3:25 PM To: Charles Cox Subject: Today’s Legal Research
I found the following I thought interesting as it related to my own case:
As I contend America’s Wholesale Lender was NOT a corporation organized and existing under the laws of New York as stated in the Deed of Trust…
A deed transferred to a corporation having no legal existence does not pass title [Copeland v. Fairview Land (1913) 165 Cal. 148, 162, 131 P. 119;but seeLanktree v. Spring Mt. Acres, Inc. (1931) 213 Cal. 362, 365, 2 P.2d 338(deed executed in favor of nonexistent corporation held to be valid when it was given to third party to be held until corporation came into existence and, subsequently, was delivered to and accepted by existing corporation)]. In California, a corporation attains legal status on the filing of its articles of incorporation. Once the articles have been filed, the corporation is an existing entity and can receive title to real property [Corp. Code §§ 200(c),207;Cavin Memorial Corp. v. Requa (1970) 5 Cal. App. 3d 345, 353, 85 Cal. Rptr. 107.]
And, related to the bogus “verifications” sent with the discovery responses I’m contesting:
Presumption Exists That Documents Signed by Two Specified Officers Were Signed on Behalf of Corporation.
A statutory presumption exists that contracts and other specified documents, when signed by at least two specified corporate officers, were validly signed on the corporation’s behalf. This presumption applies unless there is a showing that the other person had actual knowledge that the signing officers had no authority to execute the instrument [Corp Code § 313]. The presumption applies to contracts signed by the chair of the board, the president, or any vice president, and any of the following officers [Corp Code § 313]:
•Secretary.
•Any assistant secretary.
•Chief financial officer.
•Any assistant treasurer.
The statute provides a conclusive, rather than a merely rebuttable, evidentiary presumption of authority on the part of the specified corporate officers to enter into the agreement [Snukal v. Flightways Mfg., Inc. (2000) 23 C4th 754, 782, 98 CR2d 1, 3 P3d 286].
From: Charles Cox [mailto:charles@bayliving.com] Sent: Saturday, November 17, 2012 3:30 PM To: Charles Cox Subject: Lexis Forms-
Found these on Lexis doing my research today…you might (or might not) find some interesting parts in them…
Charles
Charles Wayne Cox
Email: mailto:Charles
Websites: www.BayLiving.com; www.FdnPro.com and www.ForensicLoanAnalyst.com
1969 Camellia Ave.
Medford, OR 97504-5403
(541) 727-2240 direct
(541) 610-1931 eFax
Paralegal; Litigation Support and Expert Witness Services; Forensic Loan Analyst; CA Licensed Real Estate Broker.
Deb Walden
PO BOX 15919
Wilmington, DE 19850
(302) 594-4000 office
(888) 643-9628 fax
Here is another Chase contact to try to ask for help when you can’t find anyone else to help you:
Mr. Frank Bisignano
Chief Administrative Officer
JPMorgan Chase & Co.
270 Park Avenue
New York, NY 10017-2014
Having a problem with the banking side of Chase? Here is a contact to try:
Heather Joyner
Executive Specialist
800.242.7399 ext. 51279
713-262-1279 Direct Line
FAX: 281-915-0984
heather.joyner@chase.com
Having a problem with Chase? Email Chase’s CEO Jamie Dimon for help at jamie.dimon@jpmchase.com or try executive.office@chase.com or send him snail mail at:
James Dimon
Chairman and Chief Executive Officer
JP Morgan Chase
270 Park Avenue, 39th Floor
New York, NY 10017
Phone: 212-270-1111
Fax : 212-270-1121
E-Mail Address: jamie.dimon@jpmchase.com
Charlie Scharf CEO Retail Financial Services (i.e. head of JPMorgan Chase retail banking)
Phone: 212-270-5447
Fax: 212-270-5448
E-Mail Address: charlie.scharf@chase.com
Here is a handy guide to the Chase phone tree to get to where you want quicker.
Frustrated WaMu customer Alan tells gave me this number to get directly to a live person at WaMu without any prompts: 866-394-4034. He also designed WaMu a new logo:
If you want to record your phone conversations with WaMu/Chase, read this.
Update 8/23/12: A reader gave us the helpful number:
Chase executive office 888 622 7547 ext 6773 Esmeralda Vasquez, she was very helpful and she truly was a customer advocate. She assisted me with a fraud account opened in my name and later charged off and sold to some collection agency that took me to court. She retrieved the account(that was sold over 5 years ago) and had those jerks release the judgment.
Also I got a hold of Ms. Vasquez by first calling the banking side executive office at 800-242-7399 for all of those that have issued related to banking
On this page you will find descriptions and links to various pleadings, orders, and exhibits filed by attorneys as well as individuals representing themselves. Where the outcome is known, that information is included. These documents are public records and are made available for your information, but their accuracy, competency, and effectiveness have not been verified. Only a judge can rule on a pleading and only an appellate court opinion that is certified for publication can be cited as precedent. That said, it can be both educational and entertaining to see how the great race is unfolding in the historic controversy of People v. Banks. For an entertaining public outing of history’s all-time greatest pickpockets, go see the documentary “Inside Job.”
Federal District Court
Carswell v. JPMorgan Chase, Case No. CV10-5152 GW
George Wu, Judge, U.S. District Court, Central District of California, Los Angeles Douglas Gillies, attorney for Margaret Carswell
Plaintiff sued to halt a foreclosure initiated by JPMorgan Chase and California Reconveyance Co. on the grounds of failure to contract, wrongful foreclosure, unjust enrichment, RESPA and TILA violations, and fraud. She asked for quiet title and declaratory relief. Chase responded with a Motion to Dismiss. At a hearing on September 30, 2010, Judge Wu granted defendants’ motion to dismiss with leave to amend. Plaintiff’s First Amended Complaint was filed on October 18. It begins:
It was the biggest financial bubble in history. During the first decade of this century, banks abandoned underwriting practices and caused a frenzy of real estate speculation by issuing predatory loans that ultimately lowered property values in the United States by 30-50%. Banks reaped the harvest. Kerry Killinger, CEO of Washington Mutual, took home more than $100 million during the seven years that he steered WaMu into the ground. Banks issued millions of predatory loans knowing that the borrowers would default and lose their homes. As a direct, foreseeable, proximate result, 15 million families are now in danger of foreclosure. If the legions of dispossessed homeowners cannot present their grievances in the courts of this great nation, their only recourse will be the streets.
Chase responded with yet another Motion to Dismiss, Carswell filed her Opposition to the motion, and a hearing is scheduled for January 6, 2011, 8:30 AM in Courtroom 10, US District Court, 312 N. Spring Street, Los Angeles, CA.
Khast v. Washington Mutual, JPMorgan Chase, and CRC, Case No. CV10-2168 IEG
Irma E. Gonzalez, Chief Judge, U.S. District Court, Southern District of California
Kaveh Khast in pro se
A loan mod nightmare where Khast did everything right except laugh out loud when WaMu told him that he must stop making his mortgage payments for 90 days in order to qualify for a loan modification. As Khast leaped through the constantly shifting hoops tossed in the air, first by WaMu, then by Chase, filing no less than four applications, Chase issued a Notice of Trustee’s Sale.
Khast filed a pro se complaint in federal court. The District Court granted a Temporary Restraining Order to stop the sale. Hearing on a Preliminary Injunction is now scheduled for December 3. The court wrote that the conduct by WAMU appears to be “immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,” and thus satisfies the “unfair” prong of California’s Unfair Competition Law, Cal. Bus.&Prof.Code §17200. Plaintiff has stated that he possesses documents which support his contention that Defendant WAMU instructed Plaintiff to purposefully enter into default and assured Plaintiff that, if he did so, WAMU would restructure his loan. Accordingly, Plaintiff has demonstrated that he is likely to succeed on the merits of his claim.
The court also relied upon the doctrine of promissory estoppel. Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise. He who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted.
Edward M. Chen, U.S. Magistrate, Northern District of California Thomas Spielbauer, attorney for Ruthie Hillery
Hillery obtained a home loan from New Century secured by a Deed of Trust, which named MERS as nominee for New Century and its successors. MERS later attempted to assign the Deed of Trust and the promissory note to Consumer. Consumer and the loan servicer then sued Hillery. The court ruled that Consumer must demonstrate that it is the holder of the deed of trust and the promissory note. In re Foreclosure Cases, 521 F. Supp. 2d 650, 653 (S.D. Oh. 2007) held that to show standing in a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed. For there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. “The note and mortgage are inseparable; the former as essential, the latter as an incident…an assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Carpenter v. Longan, 83 U.S. 271, 274 (1872).
There was no evidence that MERS held the promissory note or was given the authority by New Century to assign the note to Consumer. Without the note, Consumer lacked standing. If Consumer did not have standing, then the loan servicer also lacked standing. A loan servicer cannot bring an action without the holder of the note. In re Hwang, 393 B.R. 701, 712 (2008).
Serrano v. GMAC Mortgage, Case No. 8:09-CV-00861-DOC
David O. Carter, Judge, U.S. District Court, Central District of California, Los Angeles
Moses S. Hall, attorney for Ignacio Serrano
Plaintiff alleged in state court that GMAC initiated a non-judicial foreclosure sale and sold his residence without complying with the notice requirements of Cal. Civil Code Sec. 2923.5 and 2924, and without attaching a declaration to the 2923.5 notice under penalty of perjury stating that defendants tried with due diligence to contact the borrower. Defendants removed the case to federal court on the basis of diversity jurisdiction. The District Court granted defendants’ motion to dismiss without prejudice, and described in detail the defects in the Complaint with directions how to correct the defects. Plaintiff filed his Second Amended Complaint on 4/01/2010.
Sharma v. Provident Funding Associates, Case No. 3:2009-cv-05968
Vaughn R Walker, Judge, U.S. District Court, Northern District of California
Marc A. Fisher, attorney for Anilech and Parma Sharma
Defendants attempted to foreclose and plaintiffs sued in federal court, alleging that defendants did not contact them as required by Cal Civ Code § 2923.5. In considering plaintiffs’ request for an injunction to stop the foreclosure, the court found that plaintiffs had raised “serious questions going to the merits” and would suffer irreparable injury if the sale were to proceed. Property is considered unique. If defendants foreclosed, plaintiffs’ injury would be irreparable because they might be unable to reacquire it. Plaintiffs’ remedy at law, damages, would be inadequate. On the other hand, defendants would not suffer a high degree of harm if a preliminary injunction were ordered. While they would not be able to sell the property immediately and would incur litigation costs, when balanced against plaintiffs’ potential loss, defendants’ harm was outweighed.
The court issued a preliminary injunction enjoining defendants from selling the property while the lawsuit was pending.
In re: Hwang, 396 B.R. 757 (2008), Case No. 08-15337 Chapter 7
Samuel L. Burford, U.S. Bankruptcy Judge, Los Angeles
Robert K. Lee, attorney for Kang Jin Hwang
As the servicer on Hwang’s promissory note, IndyMac was entitled to enforce the secured note under California law, but it must also satisfy the procedural requirements of federal law to obtain relief from the automatic stay in a Chapter 7 bankruptcy proceeding. These requirements include joining the owner of the note, because the owner of the note is the real party in interest under Rule 17, and it is also a required party under Rule 19. IndyMac failed to join the owner of the note, so its motion for relief from the automatic stay was denied.
Reversed on July 21, 2010. District Court Judge Philip Gutierrez reversed the Judge Burford’s determination that IndyMac is not the real party in interest under Rule 17 and that Rule 19 requires the owner of the Note to join the Motion.
Ronald H. Sargis, Judge, U.S. Bankruptcy Court, Sacramento Mitchell L. Abdallah, attorney for Rickie Walker
MERS assigned the Deed of Trust for Debtor’s property to Citibank, which filed a secured claim. Debtor objected to the claim. Judge Sargis ruled that the promissory note and the Deed of Trust are inseparable. An assignment of the note carries the mortgage with it, while an assignment of the Deed of Trust alone is a nullity. MERS was not the owner of the note, so it could not transfer the note or the beneficial interest in the Deed of Trust. The bankruptcy court disallowed Citibank’s claim because it could not establish that it was the owner of the promissory note.
Edstrom v. NDEX West, Wells Fargo Bank, et. al., Case No. 20100314
Superior Court of California, Eldorado County
Richard Hall, attorney for Daniel and Teri Anne Edstrom
A 61-page complaint with 29 causes of action to enjoin a trustee’s sale of plaintiffs’ residence, requesting a judicial sale instead of a non-judicial sale, declaratory relief, compensatory damages including emotional and mental distress, punitive damages, attorneys’ fees, and rescission.
Mabry v. Superior Court and Aurora Loan Services
185 Cal.App.4th 208, 110 Cal. Rptr. 3d 201 (4th Dist. June 2, 2010)
California Court of Appeal, 4th District, Division 3
California Supreme Court, Petition for Review filed July 13, 2010.
Moses S. Hall, attorney for Terry and Michael Mabry
The Mabrys sued to enjoin a trustee’s sale of their home, alleging that Aurora’s notice of default did not include a declaration required by Cal. Civil Code §2923.5, and that the bank did not explore alternatives to foreclosure with the borrowers. The trial court refused to stop the sale. The Mabrys filed a Petition for a Writ of Mandate and the Court of Appeal granted a stay to enjoin the sale. Oral argument was heard in Santa Ana on May 18, 2010.
Aurora argued that a borrower cannot sue a lender that fails to contact the borrower to discuss alternatives to foreclosure before filing a notice of default, as required by §2923.5, because §2923.5 does not explicitly give homeowners a “private right of action.” Aurora also argued that a declaration under penalty of perjury is not required because a trustee, who ordinarily files the notice of default, could not have personal knowledge of a bank’s attempts to contact the borrower. Nobody mentioned that the trustee is not authorized by the statute to make the declaration. §2923.5 states that a notice of default “shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower…”
The Court of Appeal ruled that a borrower has a private right of action under § 2923.5 and is not required to tender the full amount of the mortgage as a prerequisite to filing suit, since that would defeat the purpose of the statute. Under the court’s narrow construction of the statute, §2923.5 merely adds a procedural step in the foreclosure process. Since the statute is not substantive, it is not preempted by federal law. The declaration specified in §2923.5 does not have to be signed under penalty of perjury. The borrower’s remedy is limited to getting a postponement of a foreclosure while the lender files a new notice of default that complies with §2923.5. If the lender ignores the statute and makes no attempt to contact the borrower before selling the property, the violation does not cloud the title acquired by a third party purchaser at the foreclosure sale. Therefore §2923.5 claims must be raised in court before the sale. It is a question of fact for the trial court to determine whether the lender actually attempted to contact the borrower before filing a notice of default. If the lender takes the property at the foreclosure sale, its title is not clouded by its failure to comply with the statute. Finally, the case is not suitable for class action treatment if the lender asserts that it attempted to comply with the statute because each borrower will present “highly-individuated facts.”
In a petition for review to the California Supreme Court, the Mabrys noted that more than 100 federal district court opinions have considered §2923.5 and an overwhelming majority have rejected a private right of action under the statute. The petition for review was denied.
After the case was remanded to the trial court, Mabry’s motion for preliminary injunction was granted. The trial court found that the Notice of Default contained the form language required by the statute, i.e. that the lender contacted the borrower, tried with due diligence to contact the borrower, etc. However, the declaration on the Notice of Default was not made under panalty of perjury, and therefore had no evidentiary value to show whether the defendant satisfied §2923.5
Superior Court of California, Contra Costa County Thomas Spielbauer, attorney for Gloria and Carlos Moreno
Complaint for declaratory relief and fraud against lender for misrepresenting the terms of the loan, promising fixed rate with one small step after two years both orally and in the Truth In Lending Statement. Loan was actually variable rate with negative amortization. Morenos would have qualified for fixed rate 5% for 30 years, but instead received an exploding 7% ARM. Notary rushed plaintiffs through signing of documents with little explanation. Complaint requests a declaration the note is invalid, unconscionable and unenforceable and the Notice of Trustees Sale is invalid.
Changing stories about who owns a mortgage and seemingly fresh evidence from a long-closed bank led a judge to throw out a foreclosure lawsuit. It’s the second time in as many months that Circuit Judge J. Michael Traynor has dismissed with prejudice a foreclosure case where homeowners disputed who owns the mortgage. Lawyers representing New York-based M&T Bank gave three separate accounts of the ownership, with documentation that kept changing.
“The court has been misled by the plaintiff from the beginning,” the judge wrote in his order. He added that documents filed by M&T’s lawyers seemed to contradict each other and “have changed as needed to benefit the plaintiff.”
The latest account was that Wells Fargo owned the note, and M&T was a servicer, a company paid to handle payments and other responsibilities tied to a mortgage. To believe that, the judge wrote, the “plaintiff is asking the court to ignore the documents filed in the first two complaints.” He added that Wells Fargo can still sue on its own, if it has evidence that it owns the mortgage.
More and more foreclosure cases are being argued on shaky evidence, said James Kowalski, a Jacksonville attorney who represented homeowners Lisa and Larry Smith in the fight over their oceanfront home. “I think it’s very representative of what the banks and their lawyers are currently doing in court,” Kowalski said.
He said lawyers bringing the lawsuits are often pressed by their clients to close the cases quickly. But it’s up to lawyers to present solid evidence and arguments. “We are supposed to be better than that,” Kowalski said. “We are supposed to be officers of the court.”
Exhibits
Department of Treasury and FDIC Report on WaMu, 4/16/2010
The Offices of Inspector General for Department of the Treasury and Federal Deposit Insurance Corporation released its evaluation of the regulatory oversight of Washington Mutual on April 16. The table of contents tells the story. WaMu pursued a high-risk lending strategy which included systematic underwriting weaknesses. They didn’t care if borrowers could pay back their loans. WaMu did not have adequate controls in place to manage its reckless “high-risk” strategy. OTS examiners found weaknesses in WaMu’s strategy, operations, and asset portfolio but looked the other way.
How could the regulators allow this breakdown to happen? Was it really fraud when banks arranged loans for homeowners who would inevitably go into defrault, sold them to Wall Street to be bundled into securities, then purchased insurance so that the bank would collect the unpaid balances when the borrowers lost their homes? Did anybody really know that repealing Glass-Steagall and permitting Wall Street banks to get under the covers with Main Street banks would cause so many borrowers to lose their homes? The Glass-Steagall Act, enacted in 1933, barred any institution from acting as any combination of an investment bank, a commercial bank, and an insurance company. It was repealed in 1999, and the repercussions have been immense.
The Office of the Comptroller of the Currency (OCC) issued Advisory Letter 2000-7 only months after Glass-Steagall was repealed. It warned regulators to be on the lookout for indications of predatory or abusive lending practices, including Collateral or Equity Stripping – loans made in reliance on the liquidation value of the borrower’s home or other collateral, rather than the borrower’s independent ability to repay, with the possible or intended result of foreclosure or the need to refinance under duress.
Proving fraud is a painstaking process. Getting inside the mind of a crook requires a careful foundation, and admissable evidence is not always easy to obtain. Many courts will take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. See Cal Evidence Code Sec. 452(c).
Here is a set of smoking guns in the form of a series of Advisory Letters issued by OCC:
Some big numbers start looking smaller when you take a close look. A case in point: The $85 million Missouri has so far reaped from last February’s national mortgage settlement with big banks.
The bulk of it, $30 million, went to short sales. But banks were doing short sales before the settlement. They’ve picked up the pace this year, but it’s not clear if the settlement was part of the reason.
Banks often save money on short sales. They save the cost of foreclosing and maintaining an empty house. That house usually sells for more in a short sale than in a foreclosure.
In metro St. Louis, for instance, short sale homes sell at a 30 percent discount to similar homes. Foreclosed hopes go at a 40 percent discount, according to figures from RealtyTrac. If the home can attract a decent offer on the market, it’s clearly in the bank’s interest to accept a short sale rather than foreclose.
Troubled homeowners prefer short sales because the banks generally forgive the remaining debt – the difference between the sale price and the amount owed on the mortgage. The $30 million from the settlement represents that forgiven debt.
That raises the question: Would the banks have forgiven that debt even without the settlement? Have banks found a nifty way to reduce the amount $25 billion they agreed to pay to settle the suit over their foreclosure practices?
The figures are similar across the nation. At least 60 percent of the money is supposed to go to homeowner relief. But the bulk of that is going for short sales.
In Missouri, 6.6 million has gone to principal reduction on mortgages, and $1.2 million was in mortgage refinancing, according to Attorney General Chris Koster’s figures. Another $7.7 million went to other, unspecified consumer relief. Koster said another $28 million was in the process of being provided to Missouri borrowers as of June 30.
The settlement was reached between five giant banks, the federal government and state attorneys general.
An electronic registry of mortgages has resulted in thousands of home foreclosures nationally. Multnomah County is now preparing to sue the mortgage giant MERS, in part to collect recording fees the county says are being avoided. Associated Press
In an action that has implications for tens of thousands of area homeowners, Multnomah County is taking on a mortgage-industry giant in hopes of recouping potentially millions of dollars in recording fees the county says have been avoided illegally.
County commissioners on Thursday will vote to make Multnomah the first county in Oregon to file a lawsuit against the Mortgage Electronic Registration Systems, a Virginia-based conglomerate created by large national banks to bundle and sell loans without having to record each new transaction.
“What MERS does is take the property recording system we have in Multnomah County and make it worthless,” said Jeff Cogen, commission chairman. “Anyone who buys, sells or owns a home in this county is affected.”
As a result of MERS’ practices, few people know who actually owns their mortgage, he said. Consequently, a public-records search alone on thousands of properties in Multnomah County may be utterly insufficient in identifying a clear title-holder.
Before the rise of MERS’ electronic registry in 1997, anyone buying a house would record the deed with the county. Those recording fees, in turn, provided the public service of making clear who owned which piece of property.
Cogen and others say the outcome of the lawsuit is far from certain. Nationally, MERS has won more suits than it has lost by arguing that it can legally be listed as a “beneficiary” on home-mortgage papers.
“It’s not a sure thing,” said Jenny Morf, Multnomah County counsel. “But we wouldn’t be here if we didn’t think we could succeed.”
The county’s lawsuit will allege that MERS has hopelessly muddied mortgage records by allowing the mortgages to be bought and sold numerous times without a recording fee being paid each time. That process shorts the county what it is due in fees, according to the county’s complaint, in addition to confusing title records.
“Maintaining these records is core to the county’s mission,” Cogen said. “We believe the banks, acting through MERS, have corrupted our public records and deprived the county of money it is entitled to.”
The county, if successful, could collect damages of anywhere from $3 million to $24 million, he said. The actual amount would depend on how many unpaid “conveyances” — selling and re-selling of mortgages among various banking interests — are determined to be involved.
If the county prevails and wins damages, Cogen said, he and other board members would use the proceeds to help county homeowners who have “suffered at the hands of MERS” through non-judicial foreclosures.
Many of the foreclosures that have hit Multnomah County homeowners since the housing meltdown that started in 2007 are a result of MERS being able to stand in as the “beneficiary” on recording documents, Cogen said. Lacking that ability, the housing giant would not have been able to proceed with the raft of non-judicial foreclosures that have left many people on the street.
Jason Lobo, MERS’ corporation communications director, declined to comment on the prospect of the county’s lawsuit.
“As a matter of regular course, we don’t comment on cases outstanding or not yet filed,” he said. “We don’t want to litigate this in the media.”
He did, however, provide information on several cases nationally that have been decided in MERS’ favor. Those include lawsuits filed in Arkansas, Florida, Kentucky and Iowa.
Attorneys advising the county say more recent outcomes have broken in favor of public and private parties suing MERS.
An Oregon Court of Appeals ruling handed down in July, for instance, found that MERS’ controversial document-registry system could not be used to get around state recording law in non-judicial foreclosures.
The Oregon Supreme Court is expected to resolve that lawsuit, filed by Rhododendron real estate agent Rebecca Niday.
A key factor in persuading county commissioners to proceed at this time is the relative lack of risk involved.
Its legal team — a Lake Oswego law firm partnering with an Alabama-based firm that has filed other anti-MERS suits nationally — is working on a contingency basis. Those firms will split one-third of any monetary award, while the county will owe nothing if the case falters.
“The county is only on the hook for a maximum of $20,000 in filing fees and associated court costs,” Cogen said. “In reality, we think the figure will be much less than that.”
Commissioner Deborah Kafoury said it makes sense for the county to take the lead on the issue since it’s county-backed homeless shelters that are now absorbing many who have lost their homes in non-judicial foreclosures over the past few years.
“The system is broken,” she said. “This is one way to start repairing it.”
From: Charles Cox [mailto:charles@bayliving.com] Sent: Tuesday, November 06, 2012 6:47 AM To: Charles Cox Subject: N. California Couple Wins ‘Dual Tracking’ Wrongful Foreclosure Suit, But Gets Hammered Anyway; Damages Limited To ‘Lost Equity’, Leaving Underwater Homeowners Empty-Handed
WELCOME TO THE HOME EQUITY THEFT REPORTER, A BLOG DEDICATED TO INFORMING THE CONSUMER PUBLIC AND THE LEGAL PROFESSION ABOUT HOME EQUITY THEFT ISSUES. THIS BLOG WILL CONSIST OF INFORMATION DESCRIBING THE VARIOUS FORMS OF HOME EQUITY THEFT AND LINKS TO NEWS REPORTS & OTHER INFORMATIONAL SOURCES FROM THROUGHOUT THE COUNTRY ABOUT THE VICTIMS OF HOME EQUITY THEFT AND WHAT GOVERNMENT AUTHORITIES AND OTHERS ARE DOING ABOUT IT.
TUESDAY, NOVEMBER 06, 2012
N. California Couple Wins ‘Dual Tracking’ Wrongful Foreclosure Suit, But Gets Hammered Anyway; Damages Limited To ‘Lost Equity’, Leaving Underwater Homeowners Empty-Handed
In Brisbane, California, the San Francisco Chronicle reports:
While Mark and Jenny Gin were making dozens of calls and submitting reams of paperwork to get a loan modification from OneWest Bank, another department of the bank proceeded to foreclose on their Brisbane home.
That’s not unusual. Thousands of homeowners have complained about such "dual tracking" – so many, in fact, that California will ban the practice starting Jan. 1, when the state Homeowners Bill of Rights takes effect.
What distinguishes the Gin family is that they sued – and won. A San Mateo Superior Court jury last month found that OneWest acted fraudulently. Legal experts said it may be the first instance of a California jury finding that a bank committed wrongful foreclosure by dual tracking.
However, the jury awarded the Gins just $13,500, which didn’t even cover their legal expenses. To get the house back, they’d have to pony up the full amount they owe on the mortgage, which they can’t do.
A cautionary tale
Their story is a cautionary tale that illuminates California’s legal landscape for the many homeowners who feel they were wrongfully foreclosed upon. Even in the rare instances where borrowers prevail against banks in court, the rewards may not be worth their trouble.
***
His attorney, Steven Finley of San Francisco’s Hennefer, Finley & Wood, explained the reasoning. The jury "found that the foreclosure was wrongful and fraudulent, but because the property was underwater, (the Gins) received no damages," he said. "Under wrongful foreclosure actions, you only get lost equity."
California offers just two remedies for wrongful foreclosure, Finley said. One is damages, but they are limited to lost equity. The other is to get the house back, but that requires tendering all the money owed on the mortgage.
"California really screws the borrower. If your house was wrongfully foreclosed and you want it back, you have to offer the whole amount," Finley said.
The jury declined to award punitive damages. "Jurors said, ‘We feel your client has been defrauded but it wasn’t directed maliciously against him,’ " Finley said.
The $13,500 awarded to the Gins was to pay them back for a remodeling project they had started. With their first child on the way, they borrowed money from relatives to make the house more child-friendly after being assured by OneWest that they would receive a loan modification, Gin said.
From: Charles Cox [mailto:charles@bayliving.com] Sent: Saturday, November 03, 2012 11:34 AM To: Charles Cox Subject: Foreclosure Reviews-"Consultants" paid $12.5k to dole out an average
Get ready to be disgusted yet again.
PricewaterhouseCoopers paid $250 million to pay out $35-60 million to harmed homeowners.
Charles
Charles Wayne Cox
Email: mailto:Charles
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An electronic registry of mortgages has resulted in thousands of home foreclosures nationally. Multnomah County is now preparing to sue the mortgage giant MERS, in part to collect recording fees the county says are being avoided. Associated Press
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