CALIFORNIA BARS ACCESS TO LAWYERS FOR BORROWERS

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

Notable Quotes: Read NY Times Article

“The revelations three months ago that large banks were sloppy and negligent in preparing foreclosure documents underscore just how important it is for distressed homeowners to have representation, lawyers and consumer advocates say. Homeowners whose cases were handled improperly have little way of knowing it. Even if they found out, they would be hard-pressed to challenge a lender without a lawyer.”

“Lawyers throughout California say they have no choice but to reject clients like Ms. Bell because of a new state law that sharply restricts how they can be paid. Under the measure, passed overwhelmingly by the State Legislature and backed by the state bar association, lawyers who work on loan modifications cannot receive any money until the work is complete. The bar association says that under the law, clients cannot put retainers in trust accounts.”

the honest lawyers can no longer afford to assist Ms. Bell and all the others who feel helpless before lenders that they see as elusive, unyielding and skilled at losing paperwork.”

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EDITOR’S ANALYSIS: If the history of this type of law in other states serves as an example, we can shortly expect an exception for attorneys that will enable homeowners access to lawyers. in the meantime the pretender lenders are having a field day pretending to do modifications that are not even in process as they pursue foreclosure with the threat of criminal sanctions of a lawyer whose retainer includes the possibility of modification.

It is ONLY through devices of this kind that pretender lenders will continue to defy the requirements of due process, fairness and legality as measured under any state or federal law or regulation. In all cases where the loan was securitized the probability is over 99% that the foreclosure proceeding is wholly fraudulent and would not get past the first stage of litigation in California IF ESTABLISHED LAW WAS PROPERLY APPLIED.

The megabanks will continue to divert the courts with new legislation that either legitimizes illegal behavior or prevents borrowers from having an opportunity to show that they were cheated, deceived and used in a whopping PONZI scheme that netted trillions in profits to Wall Street at the expense and to the great detriment of American taxpayers, the U.S. Economy, the world economy, and the bleeding budgets of states, cities and towns.

The one common thread throughout this crisis has been the unwavering full court press by pretender lenders to avoid confronting the facts. Any case heard on the merits, even in discovery, has revealed false statements, perjury, fabricated documents and forgeries.

None of the cases have gone through a trial on the merits where the rules of evidence apply. This California law, like other states is masked as a consumer protection law because of the unscrupulous tactics used by some lawyers and non-lawyers.

The end result is that the pretender lenders — i.e., the parties who have no interest in the property, loan, obligation, note or mortgage — have their lawyers lined up at the courthouse while the borrowers can’t get anyone to represent them BY LAW. The winner of the free house is…… a newly incorporated entity whose sole purpose is to be the bankruptcy remote vehicle on behalf of people and companies submitting fraudulent “credit bids” on behalf of another layer of parties who are neither creditors nor representatives of creditors. California, by greasing the skids for the intermediaries in the false securitization scheme, is facilitating the fraud on the the investors, the homeowners, the taxpayers and the State itself.

The bottom line is that the title chain is hopelessly corrupted, a process that is in effect drawing the lines of a new industry that will be born — correcting the title claims and problems caused by the exercise of raw power and influence to the exclusion of the application of established laws and due process.

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Homes at Risk, and No Help From Lawyers

By DAVID STREITFELD

In California, where foreclosures are more abundant than in any other state, homeowners trying to win a loan modification have always had a tough time.

Now they face yet another obstacle: hiring a lawyer.

Sharon Bell, a retiree who lives in Laguna Niguel, southeast of Los Angeles, needs a modification to keep her home. She says she is scared of her bank and its plentiful resources, so much so that she cannot even open its certified letters inquiring where her mortgage payments may be. Yet the half-dozen lawyers she has called have refused to represent her.

“They said they couldn’t help,” said Ms. Bell, 63. “But I’ve got to find help, because I’m dying every day.”

Lawyers throughout California say they have no choice but to reject clients like Ms. Bell because of a new state law that sharply restricts how they can be paid. Under the measure, passed overwhelmingly by the State Legislature and backed by the state bar association, lawyers who work on loan modifications cannot receive any money until the work is complete. The bar association says that under the law, clients cannot put retainers in trust accounts.

The law, which has few parallels in other states, was devised to eliminate swindles in which modification firms made promises about what their lawyers could do, charged hefty fees and then disappeared. But foreclosure specialists say there has been an unintended consequence: the honest lawyers can no longer afford to assist Ms. Bell and all the others who feel helpless before lenders that they see as elusive, unyielding and skilled at losing paperwork.

The revelations three months ago that large banks were sloppy and negligent in preparing foreclosure documents underscore just how important it is for distressed homeowners to have representation, lawyers and consumer advocates say. Homeowners whose cases were handled improperly have little way of knowing it. Even if they found out, they would be hard-pressed to challenge a lender without a lawyer.

“Consumers just don’t know what is going on,” said Walter Hackett, a former banker who is now a lawyer for a nonprofit service in Riverside. “They get a piece of paper saying they are going to lose their homes and they freak out.”

The problem for lawyers is that even a simple modification, in which the loan is restructured so the borrower can afford the monthly payments, is a marathon, putting off their payday for months if not years. If the bank refuses to come to terms, the client may file for bankruptcy. Then the lawyer will never be paid.

Alice M. Graham, a lawyer in Marina del Rey, said a homeowner in default recently tried to hire her. When Ms. Graham declined, the despairing owner begged her in vain to accept payments under the table.

“The banks have all the lawyers they want, and the consumers are helpless,” Ms. Graham said.

In some states, including New York and Florida, foreclosure proceedings are overseen by courts. In California, the process is more of a private matter between the bank and the homeowner. Through Sept. 30, lenders filed notices of default on 229,843 homes in California this year, according to the research firm MDA DataQuick.

The length of time California households spend in foreclosure, which was rising as owners pursued modifications, fell in the third quarter to 8.7 months, from 9.1 months in the second quarter. That could indicate that the absence of defense lawyers is beginning to accelerate the process.

While lawyers for nonprofits like Mr. Hackett continue to represent clients, they are too overwhelmed to help everyone. “A homeowner in California is going to have an extraordinarily difficult time finding an attorney,” he said.

That group includes Ms. Bell, who owned two properties free and clear and then gave in to a friend’s urging to “put your money to work.” That friend was an agent, and soon Ms. Bell owned two more properties and was making unsecured loans.

The loans went bad, the investments went bust, and Ms. Bell is trying to salvage her home. She wants an advocate but is reluctant to respond to any of the solicitations that fill her mailbox. “I know better,” she said.

Many people did not. Defaulting owners saw television commercials or heard radio ads where a lawyer promised relief. They handed over a few thousand dollars and heard no more.

Two years ago, the state bar association had seven complaints of misconduct in loan modifications. By March 2009, there were more than 100 complaints, and a task force was formed to deal with the problem. Soon, there were thousands of complaints.

It was a public relations disaster. The president of the bar association wrote in a column last year that “hundreds, and perhaps thousands, of California lawyers” were victimizing people “at the most vulnerable point in their lives.”

Politicians heard complaints, too. Ron Calderon, a state senator who represents several communities east of Los Angeles, sponsored a bill that prohibits advance payments for modifications and required lawyers to warn clients that they could do the job themselves without professional assistance. Lenders were supportive of the bill, Senator Calderon said.

It passed 36 to 4 in September 2009. The maximum punishment is a $10,000 fine and a year in jail.

The law is working well, Senator Calderon said. “You do not need a lawyer,” he said.

Mark Stone, a 56-year-old general contractor in Sierra Madre, feels differently. A few years ago, he got sick with hepatitis C. Unable to work full time, he began to miss mortgage payments. The drugs he was taking left him “a little confused,” he said.

Mr. Stone knew that his condition put him at a disadvantage in negotiations with his bank. So he hired Gregory Royston, a real estate lawyer in Redondo Beach. It took Mr. Royston nearly a year, but he restructured the loan.

Without the lawyer, Mr. Stone said, “I’d be living under a bridge.”

The legal bill, paid in advance, was $3,500. “Worth every penny,” said Mr. Stone, who is now back at work.

Mr. Royston said winning modifications was never easy and often impossible. “The banks stymie the borrower, and they really stymie any third party who works on behalf of the borrower,” he said.

A spokesman for the Mortgage Bankers Association said it simply wanted to protect homeowners from fraud. “Be very careful about anyone who wants you to pay them to help you get a loan modification,” said the spokesman, John Mechem.

That advice has never been more true. If any honest lawyers still do modifications, they are lost in a sea of swindles. “This law,” Mr. Royston said, “took the wrong people out of the game.”

Suzan Anderson, supervising trial counsel of the California bar’s special team on loan modification, defended the law, saying that in other types of cases, including personal injury and medical malpractice, the lawyers do not get paid until the end. She acknowledged, however, it was “a very problematical situation.”

As for the swindlers singled out by the law, they appear unfazed. The state bar is investigating 2,000 complaints of modification fraud.

“I wish the law had worked,” Ms. Anderson said.

29 Responses

  1. annoyed, depending on why he has in bad with the Bar, it might be a good thing because he is pushing for the people. We all can investigate the representative. or a right to a public defender.

  2. There is already so much abuse with claims of professionals to help, which is even worse because they reside out of state, Attorney’s wait for settlements all the time. I don’t understand the problem. And how could the bar pass it with out the attorneys agreeing as well. It seems like a connection with the banks. Why else would the state take away the only legal entity allowed to speak the language of the law (theirs).

  3. While lawyers for nonprofits like Mr. Hackett continue to represent clients, they are too overwhelmed to help everyone. “A homeowner in California is going to have an extraordinarily difficult time finding an attorney,” he said.

    About Walter Hackett . I called the law office of Walter Hackett. on the tel # I find under AVO. For my dissapointment it was picked up in another law office. When the person who picked up stated the Law Office name. I asked. Is this the law office of Walter Hackett? She told me this is the law office of …………… and we work with Mr. Hackett.
    I was very dissapointed because this law firm who picked up the telephone has been trouble with the Bar before also when I had an appointment with the law office of .R……the attorney did not even show up for our appointment only his office Mgr wanted to take $3500.00 retainer from me.
    When I made the appointment I specifically asked to speak with the attorney. I was assured he will be there. He was not there. So I cluld only talk to so called office mgr.
    He was telling me all about Forensic loan audit etc. Sounded like a used car salesman.
    After this visit I found out about the State Bar Issue.

    I do not know Mr. Hackett but I would be careful who I trust with my name and reputation as an attorney.The Law office of .R……….. would not be the one for sure.

    Here in L.A. we have a very serious problems about attorneys. I can name a few but better not. Do your home work when you hire an Attorney. I am sure there are some good ones out there however I did not find one yet. Those Big guys who start with a $ 20.000 retainer maybe the good ones I don’t know but even they can’t promise anything.
    Those that I did not want to mention they promise anything you want to hear, Just give them a few thousand dollars.

    Banks know this, Banks also know they above the law. No punishment for what they doing to homeowners.

  4. I feel Nevada is #1 in foreclosures for a reason.. That being there seems to be a defenseless state. I went to the AG with complaint regarding the sale of my home. The sale took place a day before the postponed date, without any possibility that a notice of the sale could have been given. Therefore the sale didn’t comply with NRS 107.080, Furthermore I claimed the sale was an act of conspiracy to commit grand theft, fraud. As the only possible reason the sale took place a day early was to prevent me from filing an emergency bankruptcy petition to protect my home. I was told that if the sale took place a day prior to the postponed date, and without notice a sale would take place on that day, was only a technicality and as such no crime had been committed. Then I was advised not to call their office again. Since then I’ve been unable to find a lawyer willing to help us. Most recently I shocked when a judge granted a Wit of Res. in a hearing for Unlawful Detainer, even after I informed the judge the plaintiff had the wrong Trustee’s Deed. It didn’t matter, and denied giving me a 30 day stay, to allow me time to find an attorney to address the matter in District Court.

    I’ve been told that if we proceed into District Court Pro-Se, we would stand as much a chance of winning as a high school football team would against the NFL.

    Just like so many others in Nevada,

    WE DESPERATELY NEED HELP!!

    This was the 1st of two stolen.
    The 2nd was sold by a party which MERS (as Ben.) had assigned/sold my DOT and the loan to. With a back dated document.

    ANYONE WHO CAN HELP US, PLEASE DO NOT HESITATE TO CONTACT ME.

    Thank you,
    During these
    UN-Happy Holidays

  5. Servicers are getting away with murder – and no one is watching. Servicers are debt collectors — and no one regulates debt collectors. And, Fed Res and OCC oppose regulation —- why would that be??? Because they love debt collectors –or because they have already covered for them??? If we lose proposed regulation — we lose MUCH!!!! Every battle will remain individual and against huge power — even protection by the Fed Res and OCC. Everyone MUST stand up against this — deregulation of debt collectors is the root cause of most of the problems — and the problems range from small to criminal. THIS IS THE FRONT BATTLE LINE.

    See posts under — “RANDALL WRAY: Anatomy of Mortgage Fraud, Part II: The Mother of All Frauds”

  6. John,

    Just checked out the decision in Vida – she did not plead “intended third party beneficiary.” She plead breach of contract based on common contract law outside HAMP, fraud, and promissory estoppel. The complaint was dismissed. She has been given an opportunity to replead, so it’s not a total loss.

  7. Alina, I don’t think Vida pleaded “third party beneficiary”

  8. John,

    While you are correct in saying that “court’s have ruled that HAMP has no “private right of action”, courts have ruled that the homeowner/borrower is an intended third party beneficiary under HAMP. See Marques v. Wells Fargo

  9. Jan Van Eck, The court’s have ruled that HAMP has no “private right of action”. So any mod lawsuit cannot mention HAMP in any way. That way you keep the suit in state court which is good.

  10. Bill Kay, OMG your kidding me. You see everyone’s a charlatan! Even ex mortgage broker’s claiming innocents or seeking salvation.

  11. That word modification just makes by ass twitch how can you modify an invalid fraudulent mortgage I will never trust the banks again the government is controlled our courts and one or two good smart judges are our way forward forget it. Big banks must be stopped Goliath needs s stone to the forehead could it get any worse yes it could and modification is a dirty word it doesn’t fit it can’t fit we have been here befor

  12. Modifications are a boobietrapped fairytale.

  13. Greg Bryl, Esq owes me $1900.

    I sent him money last summer to draft a complaint.

    Never got my complaint and the crooked Esq will not refund my money despite my numerous requests.

    Next, I am getting ready to file a complaint against him with Nevada AG for UPL and also a Virginia AG and Bar for UPL & suspected commingling of funds.

    Has Greg Bryl, Esq ripped you off?

    Be careful with attorneys trolling this site for business.

    I welcome all comments at:

    providencegroup@ymail.com

  14. The crafty attorney’s switched from doing loams mods to suing the banks on behalf of the homeowner’s when this came into effect quite some time ago. The ones I’ve been chatting with, sometime back in June of 2009 if memory serves me correct.

    Obviously, you need to have a case and not end up like United First and Mitchell Roth and get shutdown and disbarred for filing boilermaker complaints.

    Listen to that Jan, guy. That Dutchman knows a thing or two.

  15. To add insult to injury, most securitized loans are unlikely to be modified. Here is an example case showing a glaring lack of incentives for servicers of securitized mortgages to modify loans. In fact, such servicers have every incentive NOT to modify loans in the pool, as they would have to buy back any modified loan at its (inflated) original value.

    http://bryllaw.blogspot.com/2010/12/securitization-case-showing-financial.html

  16. Jan van Eck
    I agree with you.

    thanx

  17. http://www.scribd.com/doc/45768979/Mortgage-Servicing-News-Drops-in-Foreclosure-Activity-is-Insignificant-to-Problem-States

    22% of all foreclosures are in California.
    Judicial foreclosure in Florida down 31%.

    New data reaffirm that state laws have and will continue to have a noticeable effect on foreclosure rates nationwide and even more so in some of the most the problematic states such as Florida.

    Like what you see? Click here to sign up for the Mortgage Servicing News weekly newsletter to get the latest news headlines, statistics and feature stories on the servicing industry, including short-sales and REO.
    The RealtyTrac U.S. Foreclosure Market Report shows 262,339 foreclosure filings that include default notices, scheduled auctions and bank repossessions were filed in November 2010, up 21% from the previous month.

    Nevada reigns supreme as the state with the highest foreclosure rate for the 47th consecutive month—despite a 20% decrease in foreclosure activity during the month.

    While the monthly deterioration was significant, a longer-term view of the marketplace indicates national foreclosure rates improved compared to November 2009 when the number of foreclosure filings was 14% higher than the current.

  18. LPS Default did track 60 million loans now a few million less.

    Lender Processing Services, which tracks loan performance on 40 million mortgages, said delinquencies fell 3% in November from the prior month, but declined almost 16% year-over-year.

    Roughly, 9.2% of all home mortgages are 30-days or more past due, excluding foreclosures.

    Although LPS saw an improvement in late payments, foreclosure “pre-sale” inventories rose 8% year-over-year, with almost 4.8 million mortgages 30 or more days past due (but not in foreclosure.)

    The Jacksonville, Fla.-based analytics firmed noted that its findings are based on a “first look” at November month-end mortgage performance statistics derived from its database. (According to the Quarterly Data Report and National Mortgage News, there are roughly 58.3 million of outstanding home mortgages in the U.S.)

  19. The following is from my OTHER favorite information site, The FDA Law Blog. (Since the bastards at the FDA and big pharma are basically responsible for my current financial problems, by taking my profession away, and forcing me to do battle with the bastards we speak of here). It has to do with what is known as The Park Doctrine. In a nutshell, it mandates that a corporate officer can be held responsible for the acts of anyone in his organization even if he is unaware of the activity. Even I question that logic but it is typical of the rogue activity of the almighty FDA. BUT, if the FDA can prosecute executives for this type of activity, why can we get an agency or congress to do the same in the banking industry. Just read the following and substitute the banking industry for the pharmaceutical industry and see if things run pretty parallel:
    On December 13, 2010, in the form of a U.S. District Court for the District of Columbia decision, three former Purdue executives received news about their future based on their past that is scary enough that many FDA- regulated companies and the executives who work for those companies, aka “responsible corporate officers (“RCOs”), may wish that someone–FDA, DOJ, the HHS OIG, or perhaps even Congress, will change the current enforcement environment by eliminating punitive actions that do not serve the public interest.

    The decision at issue was the latest chapter in the ongoing saga of the government’s battle with Purdue and three of its former executives. The court upheld a decision of HHS to permissively exclude three former executives from participation in Medicare, Medicaid and all other federal health care programs for twelve years.

    While the government and the three former executives agreed to misdemeanors as part of a global plea deal, the district court nevertheless upheld an HHS decision that their conviction was one “relating to fraud.” Under the FDC Act it is well established that a misdemeanor is not a fraud conviction. In fact, one’s intent to defraud or mislead can result in a felony under the Act.

    Monday’s decision allows that not only do RCOs have Park liability for the FDC Act violations of their companies, but through the HHS exclusion authority, they may also be sanctioned for their company’s fraud conviction–without any evidence whatsoever against the RCO relating to fraud.

    This would surely divert some “responsible corporate officers” in Wall St. from worrying about their bonus and start worrying about sanctions and being banner from banking for a decade or so.

  20. I would remind Neil (and others) that while be an Advocate for the actual modification process may seem problematic, this does not bar any Counsel from taking a case from the same person [homeowner] in filing suit against the “Bank.” All contracts carry an implied covenant of good faith and fair dealing; I would argue that a Servicer, acting on behalf of and as an agent or servant of the “Bank,” has that duty as respects all aspects of the “borrower/lender” relationship, including the modification application. When the Servicer screws around, then just file suit and ask for compensatory damages and injunctive relief. The damages predictably will be much more than the house is worth, which is what makes the claim interesting. Let the jury settle their hash.

  21. If you use the word “fraud” somebody might get upset and want to sue you. The mega banks are all committing fraud every day and from the very beginning of the loan. In fact, even before the loan was made by defauding the investors and further endangering the economy and the US of A. The debt and Wall Street are the biggest threats against America. The rest is not that important. Besides, if we have to fight a war against China, they are not going to lend us anymore money. Ha, ha! The stupidity of running a government on debt is truly beyond compare. http://www.challengingforeclosure.com Sirak@challengingforeclosure.com

  22. What is wrong in this country:

    ROSEVILLE, Calif. – Fire officials say a Northern California mall was evacuated after nearly 5,000 holiday revelers showed up for a “flash mob” organized by a local choral society.

    Fire Inspector Tom Dodaro tells KXTV that the spontaneous holiday musical performance at the Roseville Galleria drew a huge crowd.

    Officials say there were reports of the floor and foundation moving and creaking near the food court, which spurred the evacuation.

    Flash mobs are groups of singers or dancers whose surprise performances in public places are often recorded and posted online.

    The group Monday was there to sing Handel’s “Hallelujah Chorus” in an event organized by the Sacramento Choral Society and Orchestra.

    The evacuation was orderly, and the singers planned to sing outside the mall.

    ********
    And only 22 people heard about or showed up for the CHASE protest?

    Do we need to start singing?

  23. It’s a crying shame that no one has ever investigated Ron Calderon. Someone should. They might be quite surprised at what they find.

  24. email correction miketamgates@msn.com

  25. Lost Dec. 20, 2010, in UT Bankruptcy Court. AFCU’s employee testified he seen orininal note on computer screen and that AFCU loaned the money. Cross examinartion witness admitted FM paid them for the loan and the assignment was not recorded in blank and that FM held original note. Judge Thurman ruled case not colorful enough in plaintiffs {AFCU} favor. Please Help.

  26. THE STATE OF CALIFORNIA IS BANKRUPT AND ROTTEN TO THE CORE.

    As a Californian born and raised it is very sad to write this.

    Highest Unemployment Rate in the Nation almost.
    Highest Debt
    School System Sucks

    Even the Illegal immigrants are going back to Mexico and the other countries.

    The only way I can defend this law is that the State already knows that you cannot get a loan modification anyways from the Banksters.

    There is an organization called Naca that might help.

    http://www.naca.com

    The Banksters are parasytes a large tumor in all of our bodies rich and poor.

    NEVER AGAIN

  27. There’s that stupid word again, “sloppy”. Don’t they mean FRAUD? Afraid of the “F” word, I guess.

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