Category Archives: legal

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Dick Bove: Trump poised to take control of the Federal Reserve

President Trump sharply criticized the Federal Reserve this week, saying interest rate increases are hurting the economy.
Trump will have the opportunity to fashion the central bank in the image he would like as he has four vacancies to fill on the board of governors.
The result could be a more politicized Fed.
Richard X. Bove
Published 11:58 AM ET Fri, 20 July 2018 Updated 6:26 PM ET Fri, 20 July 2018 https://www.cnbc.com/2018/07/20/trump-poised-to-take-control-of-the-federal-reserve.html

https://www.cnbc.com/video/2018/07/19/trump-i-dont-necessarily-agree-with-raising-rates.html

Trump: I don’t necessarily agree with raising rates
Trump: I don’t necessarily agree with raising rates
1:41 PM ET Thu, 19 July 2018 | 01:35

President Donald Trump has multiple reasons as to why he should take control of the Federal Reserve. He will do so both because he can and because his broader policies argue that he should do so. The president is anti-overregulating American industry. The Fed is a leader in pushing stringent regulation on the nation. By raising interest rates and stopping the growth in the money supply it stands in the way of further growth in the American economy.
First, He Can

The Board of Governors of the Federal Reserve is required to have seven members. It has three. Two of the current governors were put into their position by President Trump. Two more have been nominated by the president and are awaiting confirmation by the Senate. After these two are put on the Fed’s board, the president will then nominate two more to follow them. In essence, it is possible that six of the seven Board members will be put in place by Trump.

The Federal Open Market Committee has 12 members and sets the nation’s monetary policy. Seven of the 12 are the members of the Board of Governors. Five additional are Federal Reserve district bank presidents. Other than the head of the Fed bank in New York, who was nominated by the president, the other four can only take their positions as district bank presidents if the board in Washington agrees to their hiring. One of these, the Fed Bank president in Minneapolis, Neel Kashkari, is already arguing for no further rate increases.
Experts react to President Trump’s comments on Federal Reserve hike
Trump’s comments on the Fed were a big deal. Here’s why
6:19 PM ET Fri, 20 July 2018 | 02:05
Second, Regulation

Following the passage of the Dodd Frank Act in July 2010, the Fed was given enormous power to regulate the banking industry. It moved quickly to implement a number of new rules. The Fed set up a system that would penalize banks that failed to obey its new rules. These rules included setting limits as to how big an individual bank could be; how much money the banks had to invest in fed funds and Treasurys as a percent of their assets; which loans were desirable and which were not; where the banks had to obtain their funding and many, many, more up to and including how much a bank could pay its investors in dividends.


These rules have meaningfully slowed bank investments in the economy (the Volcker Rule) and they have had a crippling effect on bank lending in the housing markets (other agencies have had an impact here also).

Thus, of all of the government agencies the Fed has been possibly the most restrictive. The president has already moved to correct these excesses by putting in place a new Fed Governor (Randal Quarles) to regulate the banking industry.

Three, Killing Economic Growth

In the second quarter of 2018, the growth in non-seasonally adjusted money supply (M2) has been zero. That’s right, the money supply did not grow at all. This is because the Fed is shrinking its balance sheet ultimately by $50 billion per month. In addition, the Fed has raised interest rates seven times since Q4 2015. Supposedly there are five more rate increases coming.

This is the tightest monetary policy since Paul Volcker headed the institution in the mid-1980s. It will be recalled his policies led to back-to-back recessions. Current Fed monetary policy is directly in conflict with the president’s economic goals.

Moreover, the Treasury is estimating it will pay $415 billion in interest on the federal debt in this fiscal year. A better estimate might be $450 billion if rates keep going up. There are a lot of bridges and tunnels and jobs that could be created with this money.

Then there is inflation. It is likely to rise if the Fed eases its policies. If that happens paying down the federal debt becomes easier. On a less desirable note, higher interest rates lower real estate values. Lower rates that stimulate inflation increase real estate values.
Bottom Line

The president can and will take control of the Fed. It may be recalled when the law was written creating the Federal Reserve the secretary of the Treasury was designated as the head of the Federal Reserve. We are going to return to that era. Like it or not the Fed is about to be politicized.

https://s25.postimg.cc/4ze62wysf/image.jpg !!!

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Corrupt Attorneys

Courts

Judges Slam More and More Plaintiffs’ Attorneys for Corruption

By  March 13, 2014
Peasants in Leon, Nicaragua, march in 2007 to denounce the use of harmful pesticides at banana plantations

Photograph by Miguel Alvarez/AFP via Getty Images

http://www.businessweek.com/articles/2014-03-13/judges-slam-more-and-more-plaintiffs-attorneys-for-corruption#p1

Peasants in Leon, Nicaragua, march in 2007 to denounce the use of harmful pesticides at banana plantations

On March 7 a California appellate court upheld a trial judge’s finding that what had been billed as a watershed liability verdict against Dole Food over pesticide use in Nicaragua was actually the product of a conspiracy by corrupt plaintiffs’ lawyers. That decision came only three days after a federal judge in New York ruled that a multibillion-dollar pollution judgment against Chevron (CVX) in 2011 was so tainted by bribery and coercion that it wasn’t worth the paper it was written on.

Meanwhile, in Texas, a prominent class-action injury lawyer faces mounting woes because of allegations that he faked thousands of damage claims against BP (BP)related to the 2010 Gulf of Mexico oil spill. When you combine these cases with the criminal convictions several years ago of plaintiffs-bar titans Mel Weiss, Bill Lerach, and Dickie Scruggs—all of whom served time for corrupting the civil justice system—it’s hard to deny that there’s deep dysfunction within a powerful portion of the legal profession that claims to fight corporate abuse on behalf of the little guy.

A look at the Dole ruling illustrates the point. The California Court of Appeal in Los Angeles affirmed dismissal of one of a series of suits filed against Dole, alleging the company’s use of pesticides in Nicaragua left banana workers sterile in the late 1970s. In all, these suits resulted in billions of dollars in judgments against Dole.

STORY: The Coming GM Ignition Litigation Storm: 4 Blunt Points

The case at issue in the March 7 ruling, known as Tellez, went to trial in 2008 and produced a multimillion-dollar verdict for workers. That verdict was thrown out when Dole’s attorneys proved that many of the plaintiffs never worked for the company and weren’t, in fact, sterile. Witnesses and investigators were intimidated in Nicaragua, and plaintiffs were coached to concoct false stories. One supposed victim testified that he was instructed to memorize and repeat phony evidence “like a parrot.”

Plaintiffs’ lawyers and law firms are major political contributors, particularly to Democrats

The California appellate court said the trial judge correctly sent the Tellez plaintiffs packing. The ruling was a win for the Los Angeles firm Gibson, Dunn & Crutcher, which has engineered the negation of multiple pesticide verdicts against Dole. That accomplishment prompted Chevron to hire Gibson Dunn to fight back against a $19 billion oil-contamination judgment imposed by an Ecuadorean court in 2011. In the Chevron case, U.S. District Judge Lewis Kaplan of New York ruled on March 4 that plaintiffs’ attorney Steven Donziger turned his Ecuadorean lawsuit against the oil company into a racketeering scheme, complete with extortion, bribery of judges, and fabrication of evidence. Donziger has denied wrongdoing and vowed to appeal.

STORY: BP Spill Payout Probe Finds Corruption and Lets Money Keep Flowing

Mass-tort and class-action securities-fraud suits reached their apogee in the 1990s, fueled in part by the energy and ingenuity of an elite fraternity of plaintiffs’ firms and individual lawyers, some of whom became phenomenally wealthy as a result of their success. There’s nothing necessarily wrong, of course, with plaintiffs’ attorneys doing well along the path to doing good, just as there’s nothing necessarily improper with corporate-defense lawyers getting richly paid.

But as the plaintiffs’ bar achieved lucrative triumphs in asbestos litigation and the tobacco cases, some of its leaders lost their bearings. Scruggs, who earned a fortune in both of those arenas, pleaded guilty in 2008 to crimes related to a judicial bribery scheme. Weiss and Lerach, impresarios of securities-fraud class actions, went to prison for paying kickbacks to shareholder plaintiffs-for-hire. Last year the Kentucky Supreme Court upheld the disbarment of Stanley Chesley, a scourge of the pharmaceuticals and chemicals industries, among others. Chesley allegedly sought “unreasonable” fees in the settlement of a diet drug class action against Wyeth, now part of Pfizer (PFE).

Mikal Watts of San Antonio ranks among the nation’s most feared mass-injury lawyers. In the wake of the BP oil spill four years ago, his firm filed some 40,000 claims on behalf of deckhands and others alleging economic harm from the disaster that killed 11 rig workers and sullied the Gulf Coast. Last December, BP hit back, accusing Watts of seeking to shake down the company by filing claims for thousands of “phantom” clients who didn’t fit his description of them or didn’t exist at all. Then, in January, another well-known mass-tort attorney, Danny Becnel of Louisiana, filed a separate suit against Watts on behalf of Vietnamese American fishermen and business owners who say Watts used their names without authorization. Watts last year resigned from the plaintiffs’ steering committee helping to direct the litigation against BP after media reports that federal agents had searched his offices in connection with the phantom-claims scandal. The federal criminal probe is continuing. Watts, a major fundraiser for the presidential campaigns of Barack Obama, has denied any wrongdoing—civil or criminal. His lawyers have said all his filings against BP were made in good faith.

Despite the egregiousness of the plaintiffs’ bar abuses, there’s little chance that Congress will enact tort reform anytime soon, says Victor Schwartz, a lobbyist for business on the issue and a partner in Washington with law firm Shook, Hardy & Bacon. Plaintiffs’ lawyers and law firms are major political contributors, particularly to Democrats, who have fought attempts to cap settlements in big corporate liability cases and class actions. Lawyers spent about $135 million in 2012 helping to elect Democrats, compared with $56 million for Republican candidates, according to the Center for Responsive Politics, which tracks political money. “There have been no major business civil justice victories [in Congress] for almost a decade,” Schwartz says. Likewise, President Obama has shown little interest in taking on attorneys who invested $28 million in his reelection effort in 2012, more than twice what they gave Mitt Romney, according to the center. And bar associations and state attorneys general rarely seek to prosecute litigation fraud, which is expensive to pursue and politically fraught. As a result, says Sherman Joyce, president of the corporate-funded American Tort Reform Association, “too many plaintiffs’ lawyers believe there’s not much risk in filing fraudulent suits.”

STORY: The Case Against Class Actions, Kind Of

The bottom line: Dole and Chevron have won major court victories after federal judges ruled that plaintiffs’ lawyers engaged in fraud.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014. His most recent book is GLOCK: The Rise of America’s Gun.
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LivingLies’ Neil Garfield Post on Fannie and Freddie

New post on Livinglies’s Weblog
 

Fannie and Freddie Demand $6 Billion for Sale of “Faulty Mortgage Bonds”

by Neil Garfield

You read the news on one settlement after another, it sounds like the pound of flesh is being exacted from the culprits again and again. This time the FHFA, as owner of Fannie and Freddie, is going for a settlement with Bank of America for sale of “faulty mortgage bonds.” And most people sit back and think that justice is being done. It isn’t. $6 Billion is window dressing on a liability that is at least 100 times that amount. And stock analysts take comfort that the legal problems for the banks has basically been discounted already. It hasn’t.

For practitioners who defend mortgage foreclosures, you must dig a little deeper. The term “faulty mortgage bonds” is a euphemism. Look at the complaints there filed. When they are filed by agencies it means that after investigation they have arrived at the conclusion that something was. very wrong with the sale of mortgage bonds. That is an administrative finding that concluded there was at least probable cause for finding that the mortgage bonds were defective and potentially were criminal.

So what does “defective” or “faulty” mean? Neither the media nor the press releases from the agencies or the banks tell us what was wrong with the bonds. But if you look at the complaints of the agencies, they tell you what they mean. If you look at the investor lawsuits you see that they are alleging that the notes and mortgages were “unenforceable.” Both the agencies and the investors filed complaints alleging that the mortgage bonds were a farce, sham or in other words, a PONZI Scheme.

Why is that important to foreclosure defense? Digging deeper you will find what I have been reporting on this blog. The investors money was not used to fund the REMIC trusts. The unfunded trusts never had the money to buy or fund the origination of bonds. The notes and mortgages were never sold to the Trusts even though “assignments” were executed and shown in court. The assignments themselves were either backdated or violated the 90 day cutoff that under applicable law (the laws of the State of New York) are VOID and not voidable.

What to do? File Freedom of Information Act requests for the findings, allegations and names of investigators for the agency that were involved in the agency action. Take their deposition. Get documents. Find put what mortgages were looked at and which bond series were involved. Get a list of the mortgages and the bonds that were examined. Get the findings on each mortgage and each mortgage bond. Use the the investor allegations as lender admissions admissions in court — that the notes and mortgages are unenforceable.

There is a disconnect between what is going on at the top of the sham securitization chain and what went on in sham mortgage originations and sham sales of loans. They never happened in the real world, no matter how much paper you throw at it.

And that just doesn’t apply to mortgages in default — it applies to all mortgages, which is why all the mortgages that currently exist, and most of the deeds that show ownership of the property have clouded and probably “defective” and “faulty” titles. It’s clear logic that the government and the banks are seeking to avoid, to wit: that if the way in which the money was raised to fund the loans or purchase the loans were defective, then it follows that there are defects in the chain of title and the money trail that were obviously not disclosed, as per the requirements of TILA and Reg Z.

And when you keep digging in discovery you will find out that your client has some clear remedies to collect the profits and compensation paid to undisclosed recipients arising out of the closing of the “loan.” These are offsets to the amount claimed as due. If the loan was not funded by the Trust, then the false paper trail used by the banks in foreclosure is subject to successful attack. If the loans were in fact funded directly by the trust complying with the REMIC provisions of the Internal Revenue Code, then the payee on the note and the mortgagee on the mortgage would be the trust — or if the loan was actually purchased, the Trust would have issued money to the seller (something that never happened).

And lastly, for now, let us look at the capital structure of these banks. A substantial portion of their capital derives from assets in the form of mortgage bonds. This is the most blatant lie of all of them. No underwriter buys the securities issued by the company seeking financing through an offering to investors. It is an oxymoron. The whole purpose of the underwriter was to create securities that would be appealing to investors. The securities are only issued when you have a buyer for them, and then the investor is the owner of the security — in this case mortgage bonds.

The bonds are not issued to the investment bank as an asset of the investment bank. But they ARE issued to the investment bank in “street name.” That is merely to facilitate trading and delivery of certificates which in most cases in the mortgage bond market don’t exist. The issuance in street name does not mean the banks own the mortgage bonds any more than when you a stock and the title is issued in street name mean that you have loaned or gifted the investment to the investment bank.

If you follow the logic of the investment bank then the deposits of money by depository customers could be claimed as assets — without the required entry in the liabilities section of the balance sheet because every dollar on deposit is a liability to pay those monies on demand, which is why checking accounts are referred to as demand deposits.

Hence the “asset” has been entered on the investment bank balance sheet without the corresponding liability on the other side of their balance sheet. And THAT remains that under cover of Federal Reserve purchase of these bonds from the banks, who don’t own the bonds, the value of the bonds is 100 cents on the dollar and the owner is the bank — a living lies fundamental. When the illusion collapses, the banks are coming down with it. You can only go so far lying to the public and the investment community. Eventually the reality is these banks are underfunded, under capitalized and still being propped up by quantitative easing disguised as the purchase of mortgage bonds at the rate of $85 Billion per month.

We need to be preparing for the collapse of the illusion and get the other financial institutions — 7,000 community and regional banks and credit unions — ready to take on the changes caused by the absence of the so-called major banks who are really fictitious entities without a foundation related to economic reality. The backbone is already available — electronic funds transfer is as available to the smallest bank as it is to the largest. It is an outright lie that we need the TBTF banks. They have failed and cannot recover because of the enormity of the lies they told the world. It’s over.
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From Matt Weidner in Florida Foreclosure Hell

A COURT ACTUALLY MADE A BANK FOLLOW THE LAW AND ITS OWN RULES!

KABOOM! Non-Compliance With Pooling And Servicing Agreement (PSA) Voids Assignment of Mortgage….

Posted by: | on May 8, 2013

http://mattweidnerlaw.com/blog/2013/05/kaboom-non-compliance-with-pooling-and-servicing-agreement-psa-voids-assignment-of-mortgage/

Down here in Florida Foreclosure Courts, we are treated to a constant, steady, nearly impenetrable wall of,

“Fraud in Foreclosure Doesn’t Matter at All!”

and

“Banks Can Ignore All Laws, All Rules, All Foreclosure Processes And Still Take Your Home”

and a recent favorite

“Banks Can Spit In The Face of The Attorneys General And Ignore Their Absurd National Mortgage Settlement”

But up in New York, a court reached a stunning result…..

A COURT ACTUALLY MADE A BANK FOLLOW THE LAW AND ITS OWN RULES!

The assignment of the Defendant’s note and mortgage, having not been assigned fromthe Depositor to the Trust, is therefore void as in being in contravention of the PSA. The evidence submitted by Defendant that the note was acquired after the closing date and that assignment was not made by the Depositor, is sufficient to raise questions [*10]of fact as to Whether the Plaintiff owns the note and mortgage, and precludes granting Plaintiff summary judgment.

The assignment of the note and the mortgage which affected the transfer was dated July
16, 2008, however, pursuant to the terms of the PSA the trust closed on November 14, 2006.

Section 9.02 of the PSA specifically prohibits the acquisition of any asset for a REMIC
part of the fund after the closing date unless the party permitting the acquisition and the
NIMS (net interest margin securities) Insurer have received an Opinion letter from counsel, atthe party’s expense, that the acceptance of the asset will not affect the REMIC’s status. No such letter has been provided to show compliance with the requirements of the PSA.Plaintiff has provided no evidence that the trustee had authority to acquire the note and mortgage herein after the trust had closed.

Since the trustee acquired the subject note and mortgage after the closing date, the
trustee’s act in acquiring them exceeded its authority and violated the terms of the trust.The acquisition of a mortgage after 90 days is not a mere technicality but a material violation of
the trust’s terms, which jeopardizes the trust’s REMIC status.

Section 9.01(f) of the PSA provides that neither the Trustee, the Servicer or Holder of
the Certificates shall cause any REMIC formed under the PSA, by action or omission, to
endanger the status of the REMIC or cause any imposition of tax upon the REMIC.

Since the trust was organized as a REMIC, the investors received certain tax benefits on
the income that passed through the trust to them. Section 26 U.S.C.A. § 860D(a)(4) defines a REMIC as an entity that
as of the close of the 3rd month beginning after the startup day and at all times thereafter,
substantially all of the assets of which consist of qualified mortgages and permitted
investments.

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From Our Friends at 4closureFraud.org

CIFG ASSURANCE NORTH AMERICA, INC., V. GOLDMAN SACHS: GOLDMAN SACHS MUST FACE FRAUD CLAIMS FROM INSURER

Posted by 4closureFraud on May 8, 2013 · Leave a Comment

Court

GOLDMAN SACHS MUST FACE FRAUD CLAIMS FROM INSURER

NEW YORK (Reuters) – Goldman Sachs Group Inc (GS.N) must face fraud claims brought by CIFG Assurance North America (CADEGA.UL) over insurance it provided for $275 million in mortgage-backed securities, a New York state appeals court ruled on Tuesday.

CIFG claimed in a 2011 lawsuit that the investment bank fraudulently induced it to provide insurance for a portfolio of more than 6,000 subprime residential mortgages by concealing the shoddy quality of the loans.

A trial judge in Manhattan threw out that claim last year, ruling that CIFG would have uncovered the alleged misrepresentations had it performed proper due diligence.

The New York State Supreme Court’s Appellate Division, First Department, reversed on Tuesday, finding that CIFG had done enough by having an outside consultant analyze the loans.

“There is a question of fact as to whether plaintiff reasonably relied on defendants’ representations,” a five-judge panel wrote in a unanimous decision.

Rest here…

~

4closureFraud.org

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From Living Lies Important Info On Banks!

http://livinglies.wordpress.com/2013/05/07/new-york-getting-ready-to-prosecute-banks-for-violations-of-settlement/

 

New York Getting Ready to Prosecute Banks for Violations of Settlement

Posted on May 7, 2013 by Neil Garfield
At the end of the day everyone knows everything. If you start with the premise that the securitization of debt was a farce and that the necessary element of the false securitization of mortgage loans was the foreclosure of those loans, then you move one step closer to understanding the mortgage and foreclosure mess and a giant step forward to understanding and implementing a solution. All the actions, statements and myths promulgated by the Wall Street banks become clear, including their violation of every consent decree,order and settlement they ever made with respect to mortgage loans.
Attorney General Schneiderman of New York seems to understand this and he is taking the mega banks to task for violating a settlement that looks like pennies on the dollar. He doesn’t care why they violated the $26 Billion settlement but he is taking action for their consistent violation of the settlement. But I care about the reason and so should you. The reason is nothing less than the obvious: the mega banks expose themselves to liability that far exceeds the terms of the settlement.
In any normal circumstances when a big company enters into a settlement that amounts to pennies on the dollar, the company rushes to make the settlement final by paying the money and performing the actions required in the agreement. Thus they commit illegal acts and get away with it by entering into an agreement that looks big but doesn’t put them out of business. They are nothing but anxious to put the settlement behind them.
So why are the mega banks refusing to abide by a $26 billion settlement on a multi- trillion theft? The answer by pure logic and my sources is that if the banks actually performed on the material portions of the agreement they risk going out of business. Why?
The answer is arithmetic. The purpose of the settlement was to stop illegal foreclosure practices and compensate those who lost their homes in illegal Foreclosures (as opposed to simply reversing the Foreclosures and starting over again which is what any court of law would require if there was an admission that the documents and claims in foreclosure were false).
Arithmetic is the answer. Without Foreclosures, the banks cannot support their claim of failure of the mortgages. If the loans are reinstated then the “sales” of loans and mortgage bonds become immediately subject to an accounting and to payback to investors who bought empty bogus bonds issued by a trust that existed in name only. If the loans must be considered performing loans because of any of the reasons contained in those multistage settlements, consent decrees,orders and agency settlements, then the banks must reimburse the insurers, buyers and counter-parties on hedge products like credit default swaps.
Thus satisfactions the settlement agreement exposes the banks to a reduction in their tier 1, tier 2, and tier 3 capital such that the reality and empty underbelly of the banksia displayed for all to see. Those banks and are not nearly as big as they say they are and must be resolved by the FDIC because they actually do not have the minimum capital requirements that all banks must have to continue operations. That is why the Brown bill in the U.S. Senate is dead on right.
If the Foreclosures were invalid there is only one way to correct them, just like any title problem. Correct the defect In Title by reversing the foreclosure or get an affidavit from the homeowner joining in some correction of the corrupted title resulting from fake Foreclosures.
With trillions in liability at stake of course the banks are violating the settlement agreements and consent decrees. All they can do is try to control state and federal action by providing photo opportunities and planted articles around the media to make people feel good. But neither the housing market nor the economy will get the stimulus necessary for a full recovery until the truth is addressed instead of pretending you can fix this mortgage and foreclosure mess with Tiny settlements and promises that nobody intends to keep.

Eric Schneiderman: Banks Have ‘Confidence’ That Law Enforcement Is Not Taking Violations ‘Seriously’
http://www.huffingtonpost.com/2013/05/07/eric-schneiderman-banks_n_3226992.html

 

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DeadlyClear Posted Another Great Story!

JPMorgan Chase Beaten by Beaton, Pro Se! Hallelujah!

http://deadlyclear.wordpress.com/2013/03/29/jpmorgan-chase-beaten-by-beaton-pro-se-hallelujah/

Posted on March 29, 2013

beaten by a girlPro Se Plaintiff Deborah Beaton filed a Complaint against JPMorgan Chase wherein Defendant Northwest Trustee Services, Inc. (“NWTS”) joined in a Motion to Dismiss with Chase. In her Second Amended Complaint (SAC), Beaton alleges three causes of action:

  • (1) Violation of the Federal Debt Collection Practices Act (“FDCPA”) against NWTS,
  • (2) Incomplete Indorsement/Chain of Title, and
  • (3) violations of the Washington Deed of Trust Act (“DTA”).

USDC Honorable Richard A. Jones gave Beaton her causes of action (1) and (2) against the defendants’ Motion to Dismiss… and the beat goes on!

slapIn their normal “too big to get slapped down” modus operandi, Northwest Trustee Services filed additional paperwork well beyond the local rule limits…probably thinking the Judge wouldn’t notice. However, Judge Jones noted in his Order (click for order),

“Allowing NWTS to join in Chase’s motion and provide additional briefing would result in a combined brief of 35 pages. This would violate this District’s Local Rules. NWTS did not file a separate motion or request leave to file an over-length brief, and the court will not treat NWTS’s joinder as a separate motion since it did not follow the requisite procedures regarding noting dates. Accordingly, the court has disregarded all argument beyond the 24-page limit of the opening brief (i.e., page 8 through 15 of NWTS’s motion), and beyond the 12-page limit of the reply (i.e., page 7 through 9).”

wamujpg-063393b01f591f63_largePer the Order, in August 2008, Beaton executed a promissory note for $271,950.00, payable to the order of Washington Mutual Bank, FA (“WaMu”), which was secured by a deed of trust. The deed of trust lists WaMu as “lender,” the lender as “beneficiary,” and Ticor Title Company as “trustee.” The Court also footnoted its Judicial Notice:

“The Court generally may not consider material beyond the pleadings in ruling on a motion to dismiss. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, where documents are referenced extensively in the complaint, form the basis of plaintiffs’ claim, or are subject to judicial notice, the Court may consider those documents in the context of a motion to dismiss. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003). In its prior order, the court took judicial notice of the following exhibits attached to Exhibits 1 (Statutory Warranty Deed), 2 (Note), 3 (Deed of Trust), 5 (Sept. 25, 2008 agreement between FDIC and Chase), 6 (Appointment of Successor Trustee), 7 (Notice of Trustee Sale), 8 & 9 (various publicly recorded instruments/documents by Beaton) because they are publicly recorded documents not reasonably subject to dispute. Chase appears to rely on these same documents in its motion. Additionally, plaintiff incorporates by reference a “Notice of Default” in her SAC. NWTS has attached the Notice of Default as Exhibit 4, and plaintiff does not dispute its authenticity or accuracy. The court takes judicial notice of these documents. The court has disregarded plaintiff’s “Affidavit of Civil Rights Violations Committed” because it is not subject to judicial notice.”

FDCPA – Fair Debt Collection

excellent

Excellent work by a Pro Se. Although the Court footnoted that the “plaintiff does not dispute” theauthenticity or accuracy of the Notice of Default, clearly she did as in the Order later stated on page 3 where Judge Jones points out:

“Beaton alleges that WaMu may have transferred or negotiated the note prior to September 25, 2008, and that it remains undetermined if Chase is in fact the actual beneficiary. On November 14, 2010, NWTS, as Chase’s “duly authorized agent,” sent Beaton a “Notice of Default,” in which NWTS advised that if Beaton disputes the debt or any portion of the debt, it will request that the creditor obtain verification of the debt and mail it to her. Beaton alleges that by letter, she disputed the debt and requested validation, and that NWTS failed to comply with the FDCPA.“

The Order continues, “[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009).”

The Court then describes in detail the definition of a “debt collector”…

no-short-cuts“To the extent that Chase acquired Beaton’s loan in 2008 before she defaulted, it falls within the section 1692a(6)(F) exemption of “debt collector.” NWTS was appointed as successor trustee on November 29, 2010. However, Beaton had been in default since approximately July 1, 2010. Accordingly, NWTS does not fall within the same exemption. Beaton alleges that the identity of the “Note Bearer/Creditor remains unknown[,]” that it remains undetermined if Chase is the actual beneficiary pursuant to RCW 61.24.005(2), and that NWTS violated FDCPA and damaged the Plaintiff by foreclosing her property.

Liberally construed, the court finds that Beaton has plausibly alleged that NWTS attempted to collect on a debt that may not have been owed to Chase, which may have violated the FDCPA. See McDonald II, 2013 WL 858178 at *12 (“At the time [NWTS began the foreclosure process], NWTS had not been appointed successor trustee and was not acting on behalf of the entity that had actual physical possession of the note: it therefore lacked the right to effect dispossession of plaintiff’s property. Plaintiff has established that NWTS violated § 1692f(6)(A) of the FDCPA.”); Michelson v. Chase Home Finance, LLC, Case No. C11-1445MJP, 2012 WL 3240241, *5 (W.D. Wash. Aug. 7, 2012) (“NWTS and RCO may have violated the FDCPA because they did not yet have confirmation of Chase’s right to possess the property, and thus may have violated § 1692f(6)(A)”).

Accordingly, Beaton’s FDCPA claim may proceed against NWTS.“

DTA (Deed of Trust Act)

the-law-office-sign“The DTA regulates mortgage transactions in which a lender issuing a promissory note or other debt instrument to a borrower can secure the debt via a deed of trust. Bain v. Metro. Mortgage Group, Inc., 285 P.3d 34, 38 (Wash. 2012). The borrower becomes the grantor of the deed of trust and the lender becomes the beneficiary of the deed of trust. Id. A trustee holds title to the property in trust for the lender. Id. If the borrower defaults on the loan, the trustee “may usually foreclose the deed of trust and sell the property without judicial supervision.” Id. Because the DTA “dispenses with many protections commonly enjoyed by borrowers under judicial foreclosures, lenders must strictly comply with the statutes and courts must strictly construe the statutes in the borrower’s favor.” Albice v. Premier Mortgage Servs., Inc., 276 P.3d 1277, 1281 (Wash. 2012).

Among the statutory protections requiring strict compliance are the “requisites to a trustee’s sale” enumerated at RCW § 61.24.030. Albice, 276 P.3d at 1281, 1282 (“Without statutory authority, any action taken is invalid.”); see also Schroeder v. Excelsior Mgmt. Group, LLC, No. 86433-1, 2013 WL 791863, *8 (Wash. Feb. 28, 2013). Trustees must also strictly comply with the sale procedures itemized at RCW § 61.24.040. Albice, 276 P.3d at 1282.

Beaton’s SAC places several DTA requirements at issue. Plaintiff alleges that Chase and NWTS materially violated the DTA by providing a defective beneficiary declaration, a defective notice of default, a defective notice of trustee’s sale, defective appointment of successor trustee, and a defective trustee’s deed. Plaintiff alleges that all of the “defects” are for the same reasons that the beneficiary declaration is defective.

The DTA requires the trustee to “have proof that the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust.” RCW § 61.24.030(7)(a); see also Bain, 285 P.3d at 39 (citing trustee’s statutory obligation to obtain proof of beneficiary’s ownership of the note as element of its duty to the grantor of the deed of trust). Defendants complain that courts across the country, including federal courts in Washington, have rejected “show-me-the-note” arguments like Beaton’s. This court recently suggested that in the wake of Bain, it is time to retire the reductive “show-me-the-note” meme, at least in cases arising under Washington law. Knecht v. Fidelity Nat’l Title Ins. Co., Case No. C12-1575RAJ. In Washington, proof that the beneficiary holds the note secured by a deed of trust is a statutory requisite to a trustee’s sale. RCW § 61.24.030(7)(a).” [DC Ed. “Should be that way in every state.”]

wow!“Defendants direct the court to a beneficiary declaration which provides: “JPMorgan Chase Bank, N.A. successor in interest to Washington Mutual Bank fka Washington Mutual Bank, FA is the actual holder of the promissory note or other obligation evidencing the above-referenced loan or has requisite authority under RCW 62A.3-301 to enforce said obligation.” Even if the declaration is properly subject to judicial notice, the Washington Supreme Court has made a clear pronouncement of strict compliance with statutory provisions of the DTA. According to the declaration, Chase could be a nonholder in possession or a person not in possession who is entitled to enforce the instrument (see RCW § 62A.3-301), neither of which is proof that “the beneficiary is the owner of any promissory note or other obligation secured by the deed of trust.” RCW § 61.24.030(7)(a).”

The Court clearly opines:
“If Chase was not the holder of the note, it did not have the authority to appoint NWTS as a successor trustee, and NWTS did not have authority to initiate foreclosure proceedings without knowledge of the beneficiary as required by RCW 61.24.030(7). This would result in a material violation of the DTA. Accordingly, Beaton has plausibly alleged a violation of the DTA that survives dismissal.“

Let's go“IV. CONCLUSION
For all the foregoing reasons, the court GRANTS in part and DENIES in part Chase’s motion. The Clerk is ORDERED to enter an amended case schedule with a trial date of January 6, 2014.”   Let’s buy tickets! Thank you Shelley for the heads up.

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Heard it Through the Grapevine

 

I recently learned that in Forsyth County Georgia, an investigation has begun on the crooked foreclosure mill attorneys in Georgia.  YEA!!!

Wow, there has been continual violations of Georgia’s real property laws ever since Foreclosure Hell began, and should it be proven that these attorneys, signing their names as every bank’s employees, which we know they aren’t maybe the tides will be turning!!!

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CURTIS HERTEL JR: INGHAM COURTS OVERTURN FANNIE MAE EVICTIONS OF COUNTY HOMEOWNERS Posted by 4closureFraud on April 19, 2013 ·

CURTIS HERTEL JR: INGHAM COURTS OVERTURN FANNIE MAE EVICTIONS OF COUNTY HOMEOWNERS

Posted by 4closureFraud on April 19, 2013 · 1 Comment

FannieMayhem

INGHAM COURTS OVERTURN FANNIE MAE EVICTIONS OF COUNTY HOMEOWNERS

Ingham County Register of Deeds Curtis Hertel Jr. praised two recent court decisions against mortgage giants Fannie Mae and Freddie Mac in Ingham County that will overturn the eviction of local residents from their homes, while offering similar hope for citizens across Michigan.

“Fannie Mae and Freddie Mac have been shamelessly manipulating our state’s property laws for years at the expense of innocent citizens,” Hertel Jr. said. “They continue to try and exempt themselves from important local and state taxes by claiming a government exemption, but have continued to foreclose on individuals and families using procedures that are only available to private corporations. I’m thrilled that we now the opportunity to protect our residents from future deceitful foreclosure practices.”

Hertel Jr. has been pleading for the courts to clarify Fannie Mae’s status, as it has positioned itself as a government agency to avoid taxes, but also as a private organization in order to avoid foreclosure regulation. The cases were won against mortgage giant Fannie Mae – one in Ingham County Circuit Court, the other in its District Court.

One of the cases is now being sent to the Michigan Court of Appeals and has the potential to change the way that thousands of foreclosures are handled throughout Michigan. The court case specifically addressesforeclosures that are executed by Fannie Mae, the federally-controlled mortgage corporation that has foreclosed on thousands of Michigan residents since the housing crisis began in 2007.

Both of the overturned evictions were residents who called in to Hertel’s Foreclosure Fraud Hotline, a service he arranged with help from the Ingham County Commissioners. The purpose of the hotline is to obtain legal assistance for citizens who are facing illegal foreclosures, but cannot afford representation. The hotline is active – Ingham County residents may call 517-676-7210 to leave their information.

SOURCE: Curtis Hertel – Ingham County Register of Deeds

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