UTAH BOA BATTLEGROUND

by Morgan Skinner, KCSG News

Notice of Appeal Filed – Stay of Court Order to Vacate Injunction
Stopping Bank of America Foreclosures in Utah Requested
by Morgan Skinner, KCSG News1 day 14 hrs ago | 511 views | 0  | 8  |  |
10th Circuit Court, Denver (USC/photo)slideshow (St. George, UT) – A
Notice of Appeal to Federal Judge Clark Waddoups court order vacating
an Injunction against Bank of America and its subsidiary ReconTrust
Company halting all foreclosures in Utah was filed Friday, June 25,
2010 by St. George attorney John Christian Barlow.

Barlow told KCSG News he was “troubled by Court ruling but unrelenting
in pursuit of redress for his client (Cox) and other homeowners who
have become victims of mortgage lending gone mad.” Barlow said he has
motioned the court to allow Cox’s complaint to include a “Class of
Citizens” currently in foreclosure in Utah. Barlow contends his
client’s rights to remedies were taken away from her by a faceless
lender who continues to overwhelm homeowners and the judicial system
with motions and petitions as a remedy instead of making a good-faith
effort in face-to-face negotiations to help homeowners as the Utah
legislature intended. The David and Goliath legal battle over federal
versus states-citizens rights is headed to the 10th Circuit Court.

Judge Waddoups’ Memorandum of Explanation in support of vacating a
statewide Preliminary Injunction halting all foreclosures by the Bank
of America only served to raise more questions.

Some of the questions include:

1.) Why is the judge’s ruling at variance with his previous rulings
this year as noted in a Letter to Judge Waddoups submitted to the
court June 10th, 2010 by the Plaintiff’s counsel John Christian
Barlow, Esq. and E. Craig Smay, Esq. and posted June 21, 2010 in the
court docket, after the Ruling and Memorandum of Explanation.

2.) Why did Judge Waddoups essentially brush aside the Plaintiff’s
pleading that included the Supreme Court decision Cuomo vs. Clearing
House Association in which the Court said…“If a State chooses to
pursue enforcement of its laws in court, its targets are protected by
discovery and procedural rules” meaning a state has a right to enforce
its own laws against national banks.

3.) Why hasn’t Judge Waddoups recused himself from all Bank of America
or ReconTrust Company related cases since he was a senior partner in
the law firm Parr, Waddoups, Brown, Gee & Loveless now Parr, Brown,
Gee & Loveless that represented the Bank of America in Utah Fourth
District Court, Case No. 070402786 before he took the bench. And, the
law firm continues to represent the Bank of America and its
subsidiaries. According to the Code of Conduct for US Judges, a judge
should recuse himself when there may be a conflict of interest.

4.) Why shouldn’t Judge Waddoups recuse himself from any case in which
his old law firm represents either the plaintiff or the defendant
until he takes full distribution of his retirement fund with the law
firm as disclosed in Judge Waddoups most recent Financial Disclosure
Statement that shows he only took a partial distribution of his
retirement from the firm’s 401K

“Bank of America acquired the bankrupt Countrywide Home Loan portfolio
in a stock deal June 3, 2009. And, according to the ReconTrust
website, the Bank of America has over 1113 Utah homeowners in
foreclosure this month, and the numbers keep growing,” Barlow said.

The second part of the Plaintiff’s complaint has yet to be addressed.
It alleges neither the lender, nor MERS*, nor Bank of America, nor any
other Defendant, has any remaining interest in the mortgage promissory
note. The note was bundled with other notes and sold as
mortgage-backed securities or otherwise assigned and split from the
Trust Deed. Barlow said he has begun a quiet title action and expects
the court to adjudicate it according to the facts of evidence which
will clearly demonstrate lenders bundling notes into securities and
trading in the financial markets have created the underlying
homeowner’s mortgage nightmare.

*MERS(Mortgage Electronic Registration System) is a process designed
to simplify the way mortgage ownership and servicing rights are
originated, sold and tracked created by the real estate finance
industry. MERS eliminates the need to prepare and record assignments
when trading residential and commercial mortgage loans as securities.

Read more: KCSG Television – Notice of Appeal Filed and Stay of Court
Order Vacating Injunction Stopping Bank of America Foreclosures in
Utah Requested

16 Responses

  1. … The fraud we have witnessed.

    M.Soliman -stay away from fraud. Your case will go to hell if you bring that up and these web sites are public domain. Trust me on this from depositions and hours of discrediting my testimony.

    … They failed to answer all the requests for documentation, records accounting, etc.
    M.Soliman -Accounting? What are you looking for? FAS 140 capital gain on sale .income recognition. Interest accrual to the cutoff date!

    …., as well as every single piece of paper we sent those clowns.
    M.Soliman – These web sites are no place to make pejorative statements showing contempt for opposition and hostile claims.

    Get it done now. Slam it home!

    M.Soliman
    expert.witness@live.com

  2. Your situation is similar to mine.

    I have been fighting to keep my home for 16 months and have lost money working with folks who really did not have my interest in mind.

    When I read your post, it was if you were reading my mind.

    Would you be willing to share the name of your attorney with me? pmbva@yahoo.com

  3. It may appear as narrow, however it does apply to all creditors, including those hiding behind all the fraud we have witnessed.

    I had two loans on my home one from HSBC a second mortgage of $250,000 and another loan for $1,100,000. HSBC showed in BK court but was unable to foreclose since it lacked standing their 2nd trust equity line of credit was securitized and the failed to answer all the requests for documentation, records accounting, etc.

    The other loan is from First Magnus Financial, who went broke, and the U.S. trustee handling their BK never bothered to file a claim for the debt in our BK, and has not come back into the game field since. The BK chapter seven was discharged and both HSBC and First Magnus lost all rights to foreclose or enforce the sliced up notes and the unsecured “deed of trust” prior to the BK , we did rescind on both loans and filed all the rescission papers on our land records, as well as every single piece of paper we sent those clowns.

    One very prominent lawyer here in the Northern VA area went over the Supreme Court case and conferred with others and he believes that the impact is right between the lines. The fact that this happened with a student loan does not make it any different from any other type of mortgage or debt

    I am in the process of getting all my ducks in a row for an action to quiet title. and I will do that knowing that the battle is not just for me and my family’s rights and future but because, we were cheated by several lawyers and lost a great deal of money in the process by believing that some of this so called lawyers were going to do the professional thing and work for us. But they were only interested in setting us up on retainer and monthly payment plan to milk us dry. For two years there were no law suits , no battle, no rights. We had to take matters in our own hands.

    I do believe that if you really look into the meat of the case. if any creditor fails to show up and assert their rights for a piece of your estate. they have in essence they gave up their claims future, past and present. and the Supreme court does thik the same way unanimously.

    What is right is right, if you owe and do not pay you have to face the consequences, if you lend and believe that because you are a lender and student loans are not that easy to get rid off in BK, then you as a creditor are in for a surprise.

    We all have to build our case like a LEGO, there are many similar pieces, however, your loan is unique for many different reasons as well.

    Sometimes there is more than the eye can see.

  4. Hi jose,
    Thanks for giving this information,It’s just I looking for:)

    Regards

  5. Jose
    IMHO…i would pay you to reread this opinion again.

    the decision is very narrow in scope.. §1328(a). A debtor may obtain a discharge of government-sponsored student loan debts only if failure to discharge that debt would impose an “undue hardship” on the debtor and his dependents. §§523(a)(8).

    altho POC was not filed [ i dont think ] the objection to discharge of the debt was regarding “service & adversary ”

    but specifically in relation to..
    “government-sponsored student loan” this is key in this decision as is [chapter 13] in as much as the plain language [ bankruptcy law oxymoron ] of the opinion does recite chapter 13 in particular – my reading of the code appears it does not apply to chptr ,7 11,12. from the exemption of discharge.

    mortgage loans/and liens are addressed differently in title11.

    law is so convoluted esp bk law… requires rereading the same thing 5x to define every except instance written into” title 11″

  6. Slip Opinion) OCTOBER TERM, 2009
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    UNITED STUDENT AID FUNDS, INC. v. ESPINOSA
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 08–1134. Argued December 1, 2009—Decided March 23, 2010
    A plan proposed under Bankruptcy Code (Code) Chapter 13 becomeseffective upon confirmation, see 11 U. S. C. §§1324, 1325, and will re-sult in a discharge of the debts listed in the plan if the debtor com-pletes the payments the plan requires, see §1328(a). A debtor mayobtain a discharge of government-sponsored student loan debts only if failure to discharge that debt would impose an “undue hardship” on the debtor and his dependents. §§523(a)(8); 1328. Bankruptcy courtsmust make this undue hardship determination in an adversary pro-ceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), which the party seekingthe determination must initiate by serving a summons and complainton his adversary, see Rules 7003, 7004, 7008. Respondent Espinosa’s plan proposed repaying the principal on his student loan debt anddischarging the interest once the principal was repaid, but he did notinitiate the required adversary proceeding. The student loan credi-tor, petitioner United, received notice of the plan from the Bank-ruptcy Court and did not object to the plan or to Espinosa’s failure toinitiate the required proceeding. The Bankruptcy Court confirmedthe plan without holding such a proceeding or making a finding ofundue hardship. Once Espinosa paid his student loan principal, the court discharged the interest. A few years later, the Department ofEducation sought to collect that interest. In response, Espinosa asked the court to enforce the confirmation order by directing the Department and United to cease any collection efforts. United op-posed the motion and filed a cross-motion under Federal Rule of Civil Procedure 60(b)(4), seeking to set aside as void the confirmation or-der because the plan provision authorizing discharge of Espinosa’s student loan interest was inconsistent with the Code and the Bank-ruptcy Rules, and because United’s due process rights were violated
    2 UNITED STUDENT AID FUNDS, INC. v. ESPINOSA
    Syllabus
    when Espinosa failed to serve it with the required summons and complaint. Rejecting those arguments, the Bankruptcy Court granted Espinosa’s motion in relevant part and denied the cross-motion. The District Court reversed, holding that United was denied due process when the confirmation order was issued without the re-quired service. The Ninth Circuit ultimately reversed. It concluded that by confirming Espinosa’s plan without first finding undue hard-ship in an adversary proceeding, the Bankruptcy Court at mostcommitted a legal error that United might have successfully ap-pealed, but that such error was no basis for setting aside the order as void under Rule 60(b)(4). It also held that Espinosa’s failure to serve United was not a basis upon which to declare the judgment void be-cause United received actual notice of the plan and failed to object.
    Held:
    1. The Bankruptcy Court’s confirmation order is not void underRule 60(b)(4). Pp. 6–14.
    (a)
    That order was a final judgment from which United did notappeal. Such finality ordinarily would “stan[d] in the way of chal-lenging [the order’s] enforceability,” Travelers Indemnity Co. v. Bai-ley, 557 U. S. ___, ___. However, Rule 60(b)(4) allows a party to seekrelief from a final judgment that “is void,” but only in the rare in-stance where a judgment is premised either on a certain type of ju-risdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard. United’s alleged error falls in neither category. Conceding that the Bankruptcy Court hadjurisdiction to enter the confirmation order, United contends that thejudgment is void because United did not receive adequate notice of Espinosa’s proposed discharge. Espinosa’s failure to serve the sum-mons and complaint as required by the Bankruptcy Rules deprivedUnited of a right granted by a procedural rule. United could have timely objected to this deprivation and appealed from an adverse rul-ing on its objection. But this deprivation did not amount to a viola-tion of due process, which requires notice “reasonably calculated, un-der all the circumstances, to apprise interested parties of thependency of the action and afford them an opportunity to present their objections,” Mullane v. Central Hanover Bank & Trust Co., 339
    U.
    S. 306, 314. Here, United’s actual notice of the filing and contents of Espinosa’s plan more than satisfied its due process rights. Thus, Espinosa’s failure to make the required service does not entitleUnited to relief under Rule 60(b)(4). Pp. 7–10.
    (b)
    Contrary to United’s claim, the confirmation order is not voidbecause the Bankruptcy Court lacked statutory authority to confirm Espinosa’s plan absent an undue hardship finding under §523(a)(8).Such failure is not on par with the jurisdictional and notice failings
    Cite as: 559 U. S. ____ (2010) 3
    Syllabus
    that define void judgments qualifying for Rule 60(b)(4) relief. Section 523(a)(8) does not limit a bankruptcy court’s jurisdiction over studentloan debts or impose requirements that, if violated, would result in a denial of due process. Instead, it requires a court to make a certainfindings before confirming a student loan debt’s discharge. ‘That this requirement is “ ‘self-executing,’ ” Tennessee Student Assistance Cor-poration v. Hood, 541 U. S. 440, 450, means only that the bankruptcy court must make an undue hardship finding even if the creditor doesnot request one; it does not mean that a bankruptcy court’s failure to make the finding renders its subsequent confirmation order void for Rule 60(b)(4) purposes. Although the Bankruptcy Court’s failure tofind undue hardship was a legal error, the confirmation order is en-forceable and binding on United because it had actual notice of the error and failed to object or timely appeal. Pp. 10–14.
    2.
    The Ninth Circuit erred in holding that bankruptcy courts must confirm a plan proposing the discharge of a student loan debt without an undue hardship determination in an adversary proceeding unlessthe creditor timely raises a specific objection. A Chapter 13 plan pro-posing such a discharge without the required determination violates§§1328(a)(2) and 523(a)(8). Failure to comply with this self-executingrequirement should prevent confirmation even if the creditor fails toobject, or to appear in the proceeding at all, since a bankruptcy courtmay confirm only a plan that, inter alia, complies with the “applica-ble provisions” of the Code. §1325(a). Neither the Code nor the Rules prevent parties from stipulating to the underlying facts of undue hardship or prevent the creditor from waiving service of a summons and complaint. Pp. 14–16.
    3.
    Expanding the availability of Rule 60(b)(4) relief is not an ap-propriate prophylaxis for discouraging unscrupulous debtors from fil-ing Chapter 13 plans proposing to dispense with the undue hardshiprequirement in hopes that the bankruptcy court will overlook the proposal and the creditor will not object. Such bad-faith efforts should be deterred by the specter of penalties that “[d]ebtors andtheir attorneys face . . . under various provisions for engaging in im-proper conduct in bankruptcy proceedings,” Taylor v. Freeland & Kronz, 503 U. S. 638, 644. And Congress may enact additional provi-sions to address any difficulties should existing sanctions prove in-adequate. Pp. 16–17.
    553 F. 3d 1193, affirmed.
    THOMAS, J., delivered the opinion for a unanimous Court.

  7. Dear Angelo and everyone fighting for your house. This is the Supreme Case I was talking about. Just think about those MBS, CDO’s, CDS, etc,

    Mr. Garfield can you review and comment, Thanks

    (Slip Opinion) OCTOBER TERM, 2009
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    UNITED STUDENT AID FUNDS, INC. v. ESPINOSA
    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
    No. 08–1134. Argued December 1, 2009—Decided March 23, 2010
    A plan proposed under Bankruptcy Code (Code) Chapter 13 becomeseffective upon confirmation, see 11 U. S. C. §§1324, 1325, and will re-sult in a discharge of the debts listed in the plan if the debtor com-pletes the payments the plan requires, see §1328(a). A debtor mayobtain a discharge of government-sponsored student loan debts only if failure to discharge that debt would impose an “undue hardship” on the debtor and his dependents. §§523(a)(8); 1328. Bankruptcy courtsmust make this undue hardship determination in an adversary pro-ceeding, see Fed. Rule Bkrtcy. Proc. 7001(6), which the party seekingthe determination must initiate by serving a summons and complaint on his adversary, see Rules 7003, 7004, 7008. Respondent Espinosa’s plan proposed repaying the principal on his student loan debt and discharging the interest once the principal was repaid, but he did not initiate the required adversary proceeding. The student loan credi-tor, petitioner United, received notice of the plan from the Bank-ruptcy Court and did not object to the plan or to Espinosa’s failure to initiate the required proceeding. The Bankruptcy Court confirmedthe plan without holding such a proceeding or making a finding ofundue hardship. Once Espinosa paid his student loan principal, the court discharged the interest. A few years later, the Department of Education sought to collect that interest. In response, Espinosa asked the court to enforce the confirmation order by directing the Department and United to cease any collection efforts. United op-posed the motion and filed a cross-motion under Federal Rule of Civil Procedure 60(b)(4), seeking to set aside as void the confirmation or-der because the plan provision authorizing discharge of Espinosa’s student loan interest was inconsistent with the Code and the Bank-ruptcy Rules, and because United’s due process rights were violated

  8. Dear Angelo,

    I will get that info for you soon, but it is a case that was decided about two months ago. There was even several broadcast news offered by NPR. The decision was based on a gentleman who filed for BK, and one of his student loan creditors did not file a claim. The alleged creditor tried to coma back after the BK was discharged and sued the borrower. The borrower fought back al the way to the Supreme Court and won, even with a very conservative leaning Supreme Court he won his case out right.

  9. FWIW … even if the is no poc the ca bankruptcy judge can & [as in my adversary – case ] abstain from hearing the case, ” i am inclined to abstain for hearing this case , I feel this case is better heard in the district state court” …” In My 25 years of bankruptcy i have never seen the the court this busy”

    This old lazy wanker will choke on a chicken bone,too bad i wont be there to abstain from kindly helping him out while he turns blue!
    [ personal note ] – i was abstaining from language of love here. ; [ my bad.

    nooo… I’m not toooo angry – at the dereliction of duty, denial of the oath ; ” I do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ________ under the Constitution and laws of the United States. So help me God.”…. yea Right! Our liberty & urinejustice for all.

  10. Jose is exactly right! where your mortgage is a MBS through a PSA!!

    It does not matter who shows up on the Poof of Claim! You have a 99% chance IT WILL NOT BE THE TRUE CREDITOR!

    Challenge their standing, and get them dismissed!

    Weird thing is, Bankruptcy Court judges & Trustee’s understand this better than the Idiot Judges on the Foreclosure side!!

    Wonder why?? Probably wouldn’t have anything to do with Bank, and Wall Street Lobbyist efforts of campaign contributions as a quid pro quo?

  11. BofA-what pieces of work.

    Kept us in short sale underwriting for 17 months. Loan has been sold beyond belief and they know i know…worn them out with letters and RESPA dispute letters. The property was worth $800 now worth $350k.

    NOW they want to PAY us HUSH money. We all the sudden have a great file and qualify for HAFA; $3,000 to walk away, forgive the debt, and pay off the second mortgage…all is foregiven.

    DO YOU THINK THE BANKS WOULD DO THAT IF they could legally prove ownership and get a judgment or get the property back. It is nothing less than a payoff to get ride of us. I want to fight for a free house, but my wife wants to be done with BofA.

  12. jose
    what supreme case stated such?
    thanks in advance

  13. We all must be very careful with the bankruptcy filings and which creditor files claims and which does not. If a creditor does not file a claim in the Bankruptcy process, and your bankruptcy goes through, that creditor has in effect according to the Supreme Court decision forfeited their rights under the law.
    In other words if none of the actual true creditors do not file and only the pretender lenders do. The deeds of trust, the debts, the claims from the actual and true creditors are no longer enforceable, they null and void.

    ALL foreclosure defense lawyers and those doing their cases pro se should look into this. The decision came about regarding student loans where the alleged creditor did not properly file their claim in time and tried to enforce the note after the bankruptcy was discharged, the Supreme Court decided in favor of the debtor and makes all those unfilled claims unenforceable.

    In bankruptcy challenge them to bring forth the true creditors, they will not show up, bring an adversarial proceeding.

    We are doing that just now. They cannot come and take your house if they did not file a claim with in the time limits of the process.

    I have no argument with that.

  14. I HAVE MY FIRST CANDIDATE FOR A SUMMARY QUICK FIELD COURT.

    http://4closurefraud.org/2010/06/29/did-palm-beach-county-florida-just-announce-it-is-a-non-judicial-county/

    I KNOW A NAZI COURT WHEN I SEE ONE.

    GOD BLESS AMERICA
    WE GOT TO FIGHT FOR OUR RIGHTS.

  15. WE NEED SOME CHINESE JUSTICE.

    THE JUDGE SHOULD HAVE RECLUSED HIMSELF VIOLONTARILY HE CAN NOT CLAIM IGNORANCE.

    A FEW JUDGES IN FRONT OF A FIREING SQUAD WILL GET THE ATTENTION NEEDED. JUST LIKE IN CHINA. IN CHINA THEY SELL YOUR BODY PARTS.

    UTAH HAS A FIRING SQUAD DOESNT IT.

    “Be Strong and Courageous”

    (Deut. 31:6)

    GOD BLESS AMERICA.

  16. Go get them Utah!!!

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