Archive | January, 2013

paragraph 22 Condition precedent

31 Jan

In standard FNMA deed of trust in paragraph 22 there exists a condition precedent of contact prior to Notice of Default that is routinely ignored by most lenders and or servicers and it is a defense to Foreclosure see attached ruling in Florida

Final Judgment Paragraph 22 Judge Tepper Brendan Riley.pdf

Suarez case – set for jury trial

31 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Monday, January 28, 2013 5:27 AM
To: Charles Cox
Subject: Suarez case – set for jury trial

This is the first one I know of actually set for jury trial. Almost the same dirt bags as in our own case (they’ve got Bryan Cave, the S. California counter-part to our Severson & Werson group of scum bags.) Looks like Prosper is making some headway.

Good on 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.

PrintCase.pdf
121066708-Suarez-v-Bank-of-New-York-Mellon.pdf

Suarez Case – Complaint

31 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 31, 2013 5:19 AM
To: Charles Cox
Subject: Suarez Case – Complaint

Initial complaint attached.

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.

SuarezCase Complaint.pdf

Follow up-Williamson County Texas – Clerk Report and findings

31 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 31, 2013 6:21 AM
To: Charles Cox
Subject: Follow up-Williamson County Texas – Clerk Report and findings

Follow up to the Williamson County Clerk Audit Findings…link here to posting on my website due to file size: http://www.fdnpro.com/reference-material/documents/TexasRecorder-Audit.pdf (about 21mb…177 pages)

Remember Phil Ting and the similar report done in San Francisco? I think you’ll like this one even more.

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.

If her allegations are taken as true, she has satisfied the tender requirement

25 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 24, 2013 5:22 AM
To: Charles Cox
Subject: If her allegations are taken as true, she has satisfied the tender requirement

From Deontos (I’ve attached the Order):

Martin v. LITTON LOAN SERVICING LP, Dist. Court, ED California 2013

RENEE’L. MARTIN, Plaintiff,
v.
LITTON LOAN SERVICING LP, et al., Defendants.

No. 2:12-cv-00970-MCE-EFB PS.

United States District Court, E.D. California.

January 16, 2013.

ORDER AND FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN, Magistrate Judge.

I. BACKGROUND

Defendants have submitted a request for judicial notice which indicates that the deed of trust was assigned to defendant Deutsche Bank on March 19, 2004 and that Western Progressive is an agent for Deutsche Bank; the assignment was recorded on August 16, 2012. Defs.’ Req. for Jud. Notice, Dckt. No. 33, Exs. B, C. Although not specifically alleged in plaintiff’s first amended complaint, plaintiff contends that the assignment is fraudulent. Dckt. No. 42.

b. Failure to Respond to QWR

Here, plaintiff vaguely alleges that she sent Litton and Ocwen a QWR for an accounting and those defendants failed to respond, and defendants failed to disclose to plaintiff the true holders of the loan, after repeated attempts by plaintiff to ascertain that information. As an initial matter, those allegations lack specificity and are too speculative under Twombly andIqbal. Plaintiff does not allege, among other things, when the QWR or other requests were sent. Nonetheless, as discussed above, alleging a breach of RESPA duties alone does not state a claim under RESPA. Plaintiff must, at a minimum, also allege that the breach resulted in actual damages. See 12 U.S.C. § 2605(f)(1)(A) ("Whoever fails to comply with this section shall be liable to the borrower . . . [for] any actual damages to the borrower as a result of the failure."); Hutchinson v. Delaware Savings Bank FSB, 410 F. Supp. 2d 374, 383 (D.N.J. 2006)(citations omitted) (a claimant under 12 U.S.C. § 2605 must allege a pecuniary loss attributable to the alleged violation). Here, plaintiff does not specify any damages resulting from an alleged failure to respond to her QWR or requests regarding the true holder of the loan. Therefore, plaintiff’s RESPA claim against Litton and Ocwen based on a failure to respond to a QWR and/or requests for information about the true holders of the loan should be dismissed with leave to amend.

5. Quiet Title

Plaintiff seeks to quiet title as of March 8, 2004. Plaintiff seeks a judicial declaration that the title to the subject property is vested in plaintiff alone and that the defendants have no interest, right, or title to the property. First Am. Compl. ¶ 99. Defendants move to dismiss this claim, arguing that it fails because plaintiff has not alleged valid and/or viable tender of the indebtedness. Dckt. No. 32 at 17.

To establish a claim for quiet title, plaintiff must file a verified complaint that alleges: (a) a description of the property; (b) plaintiff’s title as to which a determination is sought; (c) the adverse claims to the title; (d) the date as to which the determination is sought; and (e) a prayer for the determination of title. Cal. Civ. Proc. Code § 761.020. Additionally, plaintiff must allege that she has tendered her indebtedness. See Kelley v. Mortg. Elec. Registration, 642 F. Supp. 2d 1048, 1057 (N.D. Cal. 2009) ("Plaintiffs have not alleged . . . that they have satisfied their obligation under the Deed of Trust. As such, they have not stated a claim to quiet title.");see also Distor v. U.S. Bank, NA, 2009 WL 3429700, at *6 (N.D. Cal. Oct. 22, 2009) ("plaintiff has no basis to quiet title without first discharging her debt, and . . . she has not alleged that she has done so and is therefore the rightful owner of the property").

Here, defendants contend that plaintiff fails to allege tender or the ability to tender. However, plaintiff’s first amended complaint specifically alleges that she does not owe anything to any of the defendants. The fundamental essence of her claim is that she sent the regular payment of her mortgage every month but defendants wrongfully refused to process those payments because of the dispute over the amount and, because defendants did not have the authority to pay taxes on her behalf, they lacked authority to alter the amount due on her payments. Therefore, according to plaintiff, she has submitted her payments as due and there is nothing further to tender.

At the hearing, plaintiff specifically stated that she did not agree to paragraphs 4 or 9 of the deed of trust, which required her to pay taxes and which authorized the lender to pay the taxes on her behalf, nor did she agree to paragraph 10 of the loan modification agreement, which also reaffirmed plaintiff’s obligation to pay her taxes. If her allegations are taken as true, she has satisfied the tender requirement.[2] In light of plaintiff’s allegations that she has timely submitted her payments, and her allegations that she did not agree to all of the terms in the deed of trust, plaintiff’s quiet title claim is sufficient to withstand defendants’ motion to dismiss.

Martin v. Litton Loan Servicing.docx

Well well well…what do we have here?

25 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 24, 2013 5:22 AM
To: Charles Cox
Subject: Well well well…what do we have here?

From PI Bill Paatalo in Portland.

Assignment of DOT – Manos.pdf

MERSCORP Shell Game Attacked by Kentucky Attorney General Jack Conway

25 Jan

From: Charles Cox [mailto:charles@bayliving.com]
Sent: Thursday, January 24, 2013 8:20 AM
To: Charles Cox
Subject: MERSCORP Shell Game Attacked by Kentucky Attorney General Jack Conway

One more try!

Posted by Neil Garfield:

EDITOR’S NOTES AND COMMENTS: My congratulations to Kentucky Attorney General Jack Conway and his staff. They nailed one of the key issues that cut revenues on transfers of interests in real property AND they nailed one of the key issues in perfecting the mortgage lien.

As we all know now MERSCORP has been playing a shell game with multiple corporate identities, the purpose of which, as explained in Conway’s complaint, was to add mud to the waters already polluted by predatory loan practices and outright fraud in the appraisal and identification of the lender. This of course is in addition to the very gnarly issue of using a nominee that explicitly disclaims any interest in the property or loan.

The use of MERS, just like the use of fabricated, forged, robo-signed documents doesn’t necessarily wipe out the debt. The debt is created when the borrower accepts the money, regardless of what the paperwork says — unless the state’s usury laws penalize the lender by eliminating the debt entirely and adding treble damages.

But the use of a nominee that has no interest in the loan or the property creates a problem in the perfection of the mortgage lien. The use of TWO nominees doubles the problem. It eliminates the most basic disclosure required by Federal and state lending laws — who is the creditor?

By intentionally naming the originator as the lender when it was merely a nominee and by using MERS, as nominee to have the rights under the security interest, the Banks created layers of bankruptcy remote protection as they intended, as well as the moral hazard of stealing or "borrowing" the loan to create fictitious transactions in which the bank kept part of the money intended for mortgage funding. Since the mortgage or deed of trust contains no stakeholders other than the homeowner and the note fails to name any actual creditor with a loan receivable account, the mortgage lien is fatally defective rendering the loan unsecured.

When you take into consideration that the funding of the loan came from a source unrelated (stranger tot he transaction) then the debt doesn’t exist either — as it relates to any of the parties named at the "closing" of the mortgage loan. So you end up with no debt, no note, and no mortgage. You also end up with a debt that is undocumented wherein the homeowner is the debtor and the source of funds is the creditor — in a transaction that neither of them knew took place and neither of them had agreed.

The lender/investors were expecting to participate in a REMIC trust which was routinely ignored as the money was diverted by the banks to their own pockets before they made increasingly toxic over-priced loans on over-valued property. The borrower ended up in limbo with no place to go to settle, modify or even litigate their loan, mortgage or foreclosure. This is not the statutory scheme in any state and Conway in Kentucky spotted it. Besides the usual "dark side" rhetoric, the plan as executed by the banks creates fatal uncertainty that cannot be cured as to who owns the loan or the lien or the debt, note or mortgage. The answer clearly does not lie in the documents presented to the borrower.

Now Conway has added the hidden issue of the MERS shell game. Confirming what we have been saying for years, the Banks, using the MERS model, have made it nearly impossible for ANY borrower to know the identity of the actual lender/creditor before during and even one day after the "closing" of the loan (which I have postulated may never have been completed because the money didn’t come from MERS nor the other nominee identified as the "lender").

The Banks are trying to run the clock on the statute of limitations with these settlements, like the the last one in which Bank of America would have owed tens of millions of dollars had the review process continued, and instead they cancelled the program with a minor settlement in which homeowners will get some pocket change while BofA walks off with the a mouthful of ill-gotten gains.

The plain truth is that in most cases BofA never paid a dime for the funding or purchase of the loan. That is called lack of consideration and in order for the rules of negotiable paper to apply, there must be transfer for value. There was no value, there was no cancelled check and there was no wire transfer receipt in which BofA was the lender or acquirer of the loan. Now add this ingredient: more than 50% of the REMIC trusts BofA says it "represents no longer exist, having been long since dissolved and settled.

The same holds true for US Bank, Mellon, Chase, Deutsch and others. Applying basic black letter law, the only possible conclusion here is that the mortgages cannot be foreclosed, the notes cannot be enforced, the debt can be collected ONLY upon proof of payment and proof of loss. This is how it always was, for obvious reasons, and this is what we should re turn to, providing a degree of certainty to the marketplace that does not and will never exist without the massive correction in title corruption and the wrongful foreclosures conducted by what the reviewers in the San Francisco audit called "strangers to the transaction."

See Louisville Morning Call here

See Bloomberg Article here

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