New post on Livinglies’s Weblog
New post on Livinglies’s Weblog
Posted by: Matthew D. Weidner, Esq. | on May 8, 2013
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!”
“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
‘Robin Hood’ lawyer fights foreclosures with a passion
Katheryn Hayes Tucker
For 34 years, Robert Thompson Jr. had been a business and labor lawyer — as was his father before him — defending corporations and financial institutions and even serving on several banks’ boards of directors.
But something happened to him two and half years ago that changed his entire practice. Now, he challenges banks and financial institutions in court, accusing them of wrongful foreclosure and outright fraud on behalf of individuals who are a step away from losing their homes.
The turning point for Thompson came at Christmas time, 2009. His mortgage servicer — with whom he had been embroiled in disputes over what he said were misapplied or lost checks, late fees for payments that had been made on time, unnecessary insurance costs and double billings for taxes — moved to foreclose on his home.
“I was a single father with three young children living with me in that house,” the silver-haired Thompson said during an interview in his Buckhead Thompson Law Group office filled with books about the financial industry and the economic crisis. “It was very upsetting.”
But, he added, “I was the wrong person to pick on about injunctions and bank law.”
On Dec. 28, 2009, he went before Fulton County Superior Court Judge John Goger, asking for an order enjoining the mortgage company from proceeding with the foreclosure. The judge’s first question was, “How much do you owe?” Thompson recalled.
“I told him I didn’t owe anything, that my payments had all been made on time, and that in fact they owed me more than $50,000 in overpayments and mystery fees,” Thompson recalled.
“Can you prove it?” the judge asked.
Thompson recalled he pointed the judge to canceled checks and FedEx receipts, and the judge granted Thompson’s injunction. Thompson filed a lawsuit against his loan servicer for mortgage fraud and abuse, wrongful foreclosure, unjust enrichment, breach of contract, conversion, misrepresentation, defamation, libel and deceit.
“People started talking about it,” Thompson said. “I thought it was just me, but then people started calling saying they had the same problem and wanting to know if I could help them.”
Now, Thompson is a man obsessed. And he said he’s had success halting foreclosures — but acknowledged securing such an injunction for a client is only the first step.
Thompson said he still has new clients coming to his office daily. Most don’t have the exact situation as his, where the payments were current but not applied to the account. The biggest percentage, he said, are struggling because of a loss of income and are seeking loan modifications to make payments more manageable, but were told by their mortgage holder they weren’t eligible either because they weren’t behind or far enough behind.
Thompson said being behind on mortgage payments isn’t a requirement of federally funded modification programs. But, on the assumption that it was, he said, his clients missed payments in hopes of qualifying for modifications, then found themselves in foreclosure with their lender refusing to accept more payments. Thompson calls that being “lured into default.”
Out of hundreds of cases he’s reviewed in the past two and a half years, he said, there wasn’t a single one where he didn’t find fraud or at least errors in the records. So far, he said, he has not yet been able to say to a homeowner, “I can’t help you because the bank did everything right.”
Bank representatives say it’s absurd to suggest banks want to foreclose if there are other options. They admit some paperwork mistakes happen but suggest it’s not right to make those a basis for loan forgiveness.
Meanwhile, Thompson is ordering up forensic audits — at a minimum of $1,000 each — to ferret out problems so that he can go to court to block foreclosures. A forensic auditing company analyzes the loan activity and tracks the transfers of deed and title as the loan has been sold by one financial company to another — and sometimes to several others.
Sometimes, Thompson said, he finds the foreclosing lender has already sold the note and collected the balance, and thus doesn’t have the legal right to foreclose. Often Thompson finds what he calls a “break in the chain of title” because the deed and the note have not been kept together in the transactions, which he said is illegal.
He can’t charge the homeowners the hourly rates he used to bill his corporate clients. Some can hardly pay anything. Occasionally, he said, he just offers free advice on how to fight a foreclosure pro se. Most of the time he negotiates a flat fee varying in amounts according to the work that needs to be done and the client’s ability to pay. “I have to make it affordable or they can’t do it,” he said. “But I can’t do it for free.”
He is especially busy the week before the first Tuesday of every month, when crowds gather on the courthouse steps for the auctioning of foreclosed homes. This month alone, he went to court for 25 injunctions to stop foreclosures.
Asked how many he won, he said, “All of them. But the injunction is only the first step.”
The next step varies, but often includes lawsuits against the lenders or servicers who initiated the foreclosure.
Lender representatives said Thompson’s charges about banks’ motivations don’t make sense.
“Do you really think the lender wants that house back?” asked Mo Thrash, a lobbyist for the Mortgage Bankers Association of Georgia and McCalla Raymer, a law firm with offices in Georgia that represents lenders. “It is absolutely ridiculous to think the lender would want the home back.”
Thrash said the conventional wisdom — that the best outcome for the lender is for the homeowner to make all their payments until the loan is paid in full — is still true, maybe more so now because of falling real estate prices and difficulty in selling homes. “I admit mistakes do happen, but I’d be willing to bet that the majority of these cases are a two-way street,” he said. “It takes two to tango.”
The majority of mortgage banks — 99 percent — are ethical and honest, Thrash added. To suggest otherwise, he said, is “absolutely crazy.”
If the personal foreclosure experiences of Thompson and some of his clients are as they described them, “It was a mistake,” said J.D. Crowe, senior vice president of Southeast Mortgage of Georgia Inc. and a member of the Mortgage Bankers Association of Georgia Board of Governors.
“If that’s the case, that’s why he won an injunction and will probably win his lawsuit. With the number of foreclosures in the last few years, there’s a lot of paper going back and forth,” Crowe said.
But like Thrash, Crowe said it’s “ridiculous” to suggest that a lender would want to foreclose if there were an alternative. “Lenders want to work with borrowers. They don’t want to foreclose,” he said.
Crowe also suggested that when homeowners win their foreclosure fights, they usually win on a technicality — a mistake in the paperwork or the separation of the deed and note in the selling of the loan by one financial institution to another. In such cases, if homeowners win damages or loan forgiveness, allowing them to walk away from their mortgage payments, said Crowe, “I think it is unconscionable.”
Disbelief, said Thompson, is the biggest challenge he faces in fighting foreclosure fraud. “People who have never suffered through it cannot believe it. It challenges the fundamentals of everything you want to believe about the banks being honest and the government protecting you.”
He cited the case of client LaVonda DeWitt, a patent lawyer whose income was reduced because her firm’s revenue dropped. In an interview, she said she contacted her mortgage company to discuss a loan modification so she could lower her payments.
“They said I wasn’t eligible because I still had a job,” she said.
Then she was laid off. She called her lender again about the modification and was told she wasn’t eligible because didn’t have a job. She said she was also told she wasn’t eligible unless she was three months behind. She stopped making payments in December 2010. She also filed a complaint with the U.S. Treasury Department over being denied a loan modification. The lender responded with a document she had never seen saying she had been offered a modification and rejected it, but later admitted that claim was a mistake, according to DeWitt. She still wasn’t offered a modification. She received a foreclosure notice in March of this year.
She met with Thompson, who went to court with her to block the sale on the first Tuesday in April. She won the injunction but still wasn’t able to negotiate a loan modification. So, on Thompson’s advice, she filed a lawsuit in federal court.
DeWitt said Thompson reminds her of the fictional Atticus Finch, taking on jobs that other lawyers don’t want.
Another client of Thompson’s, Patricia Sibley, won an injunction a year ago, then filed a lawsuit against the lender for wrongful foreclosure. The suit is pending in the Northern District of Georgia. Sibley and her husband are still in their home — “because of Bob Thompson,” she said.
As with DeWitt, Sibley’s suit is based on what Thompson calls “luring into default.” When the recession hit and slashed revenue for her advertising company, Sibley said she had to close her business. She and her husband had paid down by half their $950,000 15-year mortgage on their north Atlanta home near the Chattahoochee River, and their payments were current, she said in an interview.
She contacted the lender to ask about changing the terms to lower the payments. Since they still had some income, they felt they could afford the loan if they could spread it back to 30 years. They were told they weren’t eligible for a modification because they weren’t behind. They skipped one payment and called again, but were told they were not far enough behind to be eligible, according to Sibley and the lawsuit. After the third missed payment, they received a foreclosure notice. They tried to talk to the lender’s customer service department many times and offered to pay the loan current and cover fees in return for restructuring, she said, but heard no response.
The house was advertised for foreclosure. The weekend before the first Tuesday in June 2011, cars were driving by the house and stopping to take pictures, Sibley said. It was an experience she said she wouldn’t wish on anyone.
A friend called and said she had a friend who knew someone who might be able to help — Thompson. The friend said, “I have somebody who’s like Robin Hood. He takes from the banks and gives to the poor.”
“Not that we’re the poor,” Sibley added. But, she said, “I never would have dreamed I’d be in this position.”
Sibley’s case is unresolved, but Thompson was able to get an injunction to prevent foreclosure while it’s pending.
McCurdy & Candler, which has offices in Decatur and Atlanta, handled Sibley’s foreclosure for PNC Mortgage, as well as DeWitt’s foreclosure for Chase. Managing partner Sidney Gelernter said the firm couldn’t comment on any pending case or even discuss foreclosures generally. Sibley’s suit is being defended by Ballard Spahr. One of the lawyers working on the case in Atlanta, Christopher Willis, said the firm couldn’t comment on any matter involving any of its clients.
Sibley’s lawsuit is against National City Mortgage Company, National City Bank, PNC Mortgage, Bank of America and unidentified investors. Sibley said she tried repeatedly to find out the identity of the investors who now own the loan — in order to work out payment terms — but PNC, the servicer, wouldn’t tell her.
A spokeswoman for PNC said the company couldn’t comment on any lawsuit. “We do work with customers,” said Amy Vargo, noting modification programs described on the PNC website.
In his own personal case, Thompson sued BAC Home Loans Servicing, which is a subsidiary of Bank of America, and Bank of New York Mellon, formerly known as Bank of New York, successor in interest to JP Morgan Chase Bank. Bank of America acquired Countrywide Mortgage Company, which was Thompson’s loan servicer. Thompson’s lawsuit names four companies that owned his note successively. Thompson’s case — which he has withdrawn for now — was defended by Monica Gilroy of Alpharetta’s Dickenson Gilroy, who said she couldn’t discuss it.
The foreclosing firm in Thompson’s case was Shuping, Morse & Ross, based in Riverdale. Neither the managing partner, Sheltan Andrew Shuping Jr., nor the lawyer who handled the foreclosure, Kevin Duda, could be reached for comment.
Thompson’s lawsuit — moved from Fulton Superior Court to federal district court in Atlanta — seeks damages for overpayments and unauthorized fees, harassment and injury to his credit and reputation, naming a figure of $5 million.
Thompson said he has stopped making mortgage payments, and BAC has stopped trying to foreclose. He moved to withdraw his complaint, while keeping the door open to refiling it later, and the judge agreed. He said he believes the courts are evolving in their understanding of foreclosure fraud, and he plans to reinitiate the suit at a time that will be advantageous. For now, he said, “It’s an armed truce.”
Thompson’s case in federal court is Thompson v. BAC Home Loans, No. 1:10-CV-3205-TCB.
Sibley’s case in federal court is Sibley v. National City Mortgage Co., No. 1:12-cv-00305-SCJ-JFK.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
NATURE AND SUMMARY OF THIS ACTION
1. This lawsuit seeks to have Defendants clean up the mess they created in
Guilford County’s public property records and to hold Defendants accountable for their unfair and deceptive trade practices.
COUNTY OF GUILFORD GUILFORD COUNTY, ex rel. JEFF L.
THIGPEN, GUILFORD COUNTY REGISTER OF DEEDS,
LENDER PROCESSING SERVICES, INC.;
DOCX, LLC; LPS DEFAULT SOLUTIONS,
INC.; MERSCORP HOLDINGS, INC.;
REGISTRATION SYSTEMS, INC.; WELLS
FARGO BANK, N.A.; WELLS FARGO
HOME MORTGAGE, INC.; BANK OF
AMERICA, N.A.; JPMORGAN CHASE
BANK, N.A.; CHASE HOME FINANCE
LLC; EMC MORTGAGE CORPORATION;
MIDFIRST BANK; SAND CANYON
CORPORATION; CITI RESIDENTIAL
LENDING, INC.; GREEN TREE
SERVICING, LLC; AMERIQUEST
MORTGAGE COMPANY; USAA
FEDERAL SAVINGS BANK; AMERICAN
HOME MORTGAGE SERVICING, INC.;
MOREQUITY, INC.; U.S. BANK
EQUICREDIT CORPORATION OF
FINANCIAL SERVICES CORP.; ARGENT
MORTGAGE COMPANY, LLC; THE
BANK OF NEW YORK MELLON; THE
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.; CAPITAL ONE, N.A.;
FIRST FRANKLIN FINANCIAL CORP.;
NAVY FEDERAL CREDIT UNION; and
WEICHERT FINANCIAL SERVICES;
New York sues banks over foreclosures
- By Jennifer Liberto@CNNMoneyFebruary 3, 2012: 3:15 PM ET
New York Attorney General Eric Schneiderman has sued the big banks over their use of a private electronic mortgage registry.
WASHINGTON (CNNMoney) — The New York attorney general sued some of the nation’s biggest banks on Friday, accusing them of unlawful and deceptive practices for relying on a private electronic registry that tracks mortgages.
Attorney General Eric Schneiderman on Friday sued Bank of America (BAC, Fortune 500), Wells Fargo (WFC, Fortune 500), JPMorgan Chase (JPM, Fortune 500), as well as the Mortgage Electronic Registration System Inc. (MERS) in New York state court.
Schneiderman says that the banks created the electronic registry as an “end-run” around the public property recording system to help them more quickly buy and sell parts of mortgages. He said the system helped banks create “deceptive and fraudulent court submissions” and improperly foreclose on homeowners.
“Our action demonstrates that there is one set of rules for all — no matter how big or powerful the institution may be — and that those rules will be enforced vigorously,” said Attorney General Schneiderman in a statement.
MERS runs a database created in the 1995 to digitize and centralize the paperwork surrounding the bundling and selling of the loans. MERS members include most of the large banks in the mortgage industry. More than 70 million loans are registered in the MERS system, including 30 million that are active, according to the New York attorney general’s office.
The New York suit alleges that the database was used by the big banks to transfer ownership of mortgage debt without paying government registration fees and properly recording the transactions. The system also concealed the identities of the holders of mortgage debt from borrowers, the suit claims.
“MERS’ conduct, as well as the servicers’ use of the MERS System, has resulted in the filing of improper New York foreclosure proceedings, undermined the integrity of the judicial process, created confusion and uncertainty concerning property ownership interests, and potentially clouded titles on properties throughout the State of New York,” according to a statement by the New York Attorney General.
MERSCORP, parent company for Mortgage Electronic Registration System Inc., said the company refutes the attorney general’s claims, adding that federal and state courts nationwide have already upheld the MERS’ business model, according to a statement.
One Washington research analyst notes that the New York charges are similar to past cases brought against MERS, and that so far, “the industry has won most of those challenges,” said Jaret Seiberg, of Guggenheim’s Washington Research Group “The ones they lost tend to be on narrow issues.
In December the Massachusetts attorney general filed a lawsuit against the same banks, as well as Citigroup (C, Fortune 500) and GMAC Mortgage, alleging similar complaints. That case is still pending.
Schneiderman is also leading a working group of federal and state officials that the president put together to investigate mortgage securities fraud.
At the same time, Schneiderman is also considering whether New York should sign on to a mortgage servicing settlement agreement that federal officials and state attorneys general have been negotiating for a year with the nation’s largest banks that service mortgages.
Court: Indiana Supreme Court
Opinion Date: September 15, 2011
Areas of Law: Bankruptcy, Commercial Law, Consumer Law
Loan borrowers entered into a residential mortgage loan. After a dispute about whether the borrowers paid the proper amount of property taxes, the mortgage holder filed a foreclosure action, alleging that the borrowers failed to pay monthly mortgage payments and fees. The borrowers asserted numerous legal defenses and claims against the mortgage holder and loan servicer. The borrowers asked for a jury trial on these defenses and claims, but the trial court denied the request, reasoning that foreclosure was an “essentially equitable” cause of action. The court of appeals reversed, concluding that the essential features of this case were not equitable. The Supreme Court affirmed the trial court’s denial of the borrowers’ request for a jury trial, holding that the borrowers’ claims and defenses shall be tried in equity because the core legal questions presented by the borrowers’ defenses and claims were significantly intertwined with the subject matter of the foreclosure action.
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