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
Eric Schneiderman: Banks Have ‘Confidence’ That Law Enforcement Is Not Taking Violations ‘Seriously’
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!!!
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.
By Michael Bathon – Mar 18, 2013 3:29 PM E
The company, based in Atlanta, listed debt of more than $50 million and assets of as much as $50 million in Chapter 11 documents filed today in U.S. Bankruptcy Court in Wilmington, Delaware. Ten affiliates also filed for bankruptcy.
Prommis officials determined that it’s “in the best interests of the company, its creditors, and other parties in interest,” to seek court protection under Chapter 11 of the U.S. Bankruptcy Code, according to court documents.
The company said in the filing that it plans to sell virtually all its assets in a court-supervised auction. No terms were disclosed.
Prommis is also seeking to implement retention and incentive plans for key employees, singling out those “who are essential to both the company’s ongoing business operations and their sale and wind-down efforts.”
The company helps mortgage servicers and law firms with foreclosure proceedings in 19 states and provides bankruptcy and loss-mitigation services throughout the U.S., according to its website.
Ares Capital Corp. (ARCC), a New York-based investment firm, owns 17.3 percent of the Prommis’ common stock and 43.2 percent of its Class B units, according to court papers.
Steven K. Kortanek, a lawyer representing Prommis, didn’t immediately return a phone call seeking comment on the bankruptcy filing.
The 30 largest unsecured creditors of the company and its affiliates are owed about $3.3 million, according to court filings.
The case is In re Prommis Holdings LLC, 13-10551, U.S. Bankruptcy Court, District of Delaware (Wilmington).
To contact the reporter on this story: Michael Bathon in Wilmington, Delaware, at firstname.lastname@example.org
FORSYTH COUNTY, Ga. —
A metro Atlanta consumer attorney said he has already been able to halt a dozen foreclosures using a new ruling from the Georgia Court of Appeals.
The latest case involves a Forsyth County home and lending giant Wells Fargo.
“Having to move out of the dream home that my son and I built is the worst thing I could think of,” said homeowner David Stripland.
The recession hit his car
dealership around the same time the housing crisis, cutting his home’s value more than 60 percent.
“You can’t sell it, you can’t re-fi, you have to get a modification,” said his
The Striplands said the process went on for more than a year. They then received a string of foreclosure notices from Wells Fargo.
“Foreclosure. It’s a shame,” said
Paulette through a stream of tears.
The foreclosure has now been halted, after a recent ruling by the state appellate court.
Wells Fargo does not hold the note. It only services the loan. The note holder is not clearly stated.
The Striplands paid forensic auditors who found the loan has been divided up into dozens of securities sold to investors.
“Once these notes are chopped up and turned into bonds, securities, whatever; who really owns
it?” asked their attorney, Bob Thompson.
But the Georgia Court of Appeals ruling in a case involving a Cobb County family and servicers Provident Funding, LLC, ruled homeowners have “a right to know” to whom they actually owe the money, lest they be “misled or confused.”
“Even a dog in Georgia has the right to know who’s kicking him,” Emory law professor Frank Alexander told Channel 2’s reporting partners at the Atlanta Journal Constitution.
“These big banks and Wall Street have to follow the law of the land, just like I do,” said
Channel 2’s Jim Strickland learned just before 5 p.m. Thursday, Wells Fargo had halted the foreclosure.
Thompson said most homeowners in peril should take action on their own.
Call and get it stopped and get yourself some time, because with time most people can work things out,” he said.
It is likely Provident will appeal to the state supreme court.
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