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BANKS DUG THEIR OWN GRAVE ON QUIET TITLE ACTION
Whatever they say will be suspect from now on
see ibanez-huge-win-for-borrowers-in-massachusetts-non-judicial-state-high-court
They never did the assignment and later when they tried to correct that problem they found they were in the position of violating the terms spelled out in the PSA wherein the assignment could be accepted by the pool — as to time, content (non-performing loans) etc. As of this point in time, there are approximately 50 million transactions over the past ten years that fit this fact pattern. All of them have fatal defects in title.— Neil Garfield
“In September and October of 2008, U.S. Bank and Wells Fargo brought separate actions in the Land Court under G.L. c. 240, § 6, which authorizes actions “to quiet or establish the title to land situated in the commonwealth or to remove a cloud from the title thereto.” The two complaints sought identical relief: (1) a judgment that the right, title, and interest of the mortgagor (Ibanez or the LaRaces) in the property was extinguished by the foreclosure; (2) a declaration that there was no cloud on title arising from publication of the notice of sale in the Boston Globe; and (3) a declaration that title was vested in the plaintiff trustee in fee simple. U.S. Bank and Wells Fargo each asserted in its complaint that it had become the holder of the respective mortgage through an assignment made after the foreclosure sale.”
EDITOR’S NOTE: The Banks themselves thought they had it made and filed what we have suggesting to borrowers — a lawsuit to quiet title, claiming the foreclosure was valid and that Ibanez was divested from title as a result of the foreclosure. The Supreme Court in Massachusetts said there is nothing wrong with an action to quiet title — it’s just that the banks lose and Ibanez wins. The Banks failed to establish a clear chain showing that they actually and legally had the right to foreclose — meaning that the mortgage was properly assigned to them. Upon failure to do that, the Banks were found to have violated Massachusetts law by foreclosing on property that was not subject to any legal claim by them. They had no right to title and therefore they had no right to quiet title.
In the end this was simple application of age-old title examination. As Max Gardner points out in his ABCDE approach, you either have it or you don’t. The Banks don’t and in my opinion they can’t fix it because factually they did everything wrong, they have already been compensated, and they have cheated not only the borrowers, but the investors who put up the money. Thus this decision helps both investors who filed damage suits against the investment bankers and borrowers who filed slander of title and other tort and statutory claims. This ruling by the Supreme Court corroborates the finding on these pages that the pools are and always were EMPTY.
The big point to take away from this decision is that the Banks must prove they have the right — it will no longer be presumed just because they have some paperwork of dubious authenticity and give an order to foreclose. Trustees around the country better take notice that if they receive an instruction on a Deed of Trust that they should foreclose they may be a tool in a fraudulent scheme.
“The Ibanez mortgage. On December 1, 2005, Antonio Ibanez took out a $103,500 loan for the purchase of property at 20 Crosby Street in Springfield, secured by a mortgage to the lender, Rose Mortgage, Inc. (Rose Mortgage). The mortgage was recorded the following day. Several days later, Rose Mortgage executed an assignment of this mortgage in blank, that is, an assignment that did not specify the name of the assignee. [FN11] The blank space in the assignment was at some point stamped with the name of Option One Mortgage Corporation (Option One) as the assignee, and that assignment was recorded on June 7, 2006. Before the recording, on January 23, 2006, Option One executed an assignment of the Ibanez mortgage in blank.”
EDITOR’S NOTE: This is a classic case of a sham transaction where Rose mortgage was not the source of funds, was not the lender, and never handled the money except for receiving a fee for pretending to be the lender. The Mass. Court decision goes to the heart of how securitization was practiced where the money moved and the documents didn’t and there was no disclosure or proper notice. The effect of naming nobody or a nominee with no interest or power to do anything (which is the same as identifying nobody) is to invalidate the transfer ab initio. There is no transfer and there is nothing that anybody can do to make it a transfer and there is nothing anyone needs to do to void the “transfer” because it did not occur.
What you have left is a homeowner whose title record is clouded (Cleared up mostly by this court decision) where the only record lender was not the factual lender. The note therefore does not describe the transaction and the mortgage, seeking to provide security for the note, is securing an obligation that does not exist. The obligation, if one exists, arises by virtue of the receipt of money by the borrower or the payment on his behalf from a source of funds that is the lender. That actual lender is not described in the closing documents and the identity of the true lender was intentionally withheld from the buyer, depriving him of the right to choose whom he does business with.
Thus the REAL obligation has NO DOCUMENTATION. And under this decision pretender lenders can no longer substitute fabricated documentation for real proof. The fact that this decision took place in a state where court action is not required to commence foreclosure means that the decision is applicable to ALL states. In plain language, the banks are screwed.
“ According to U.S. Bank, the assignment of the Ibanez mortgage to U.S. Bank occurred pursuant to a December 1, 2006, trust agreement, which is not in the record. What is in the record is the private placement memorandum (PPM), dated December 26, 2006, a 273-page, unsigned offer of mortgage-backed securities to potential investors. The PPM describes the mortgage pools and the entities involved, and summarizes the provisions of the trust agreement, including the representation that mortgages “will be” assigned into the trust.”
EDITOR’S NOTE: The Massachusetts Court adeptly picked up on the practice of “selling forward,” a concept that I have been spouting about for over three years. It makes all the difference in the world. The fact is that in most cases when the investors advanced funds, there were no mortgages, there was not even any applications for mortgages that were applicable to that money. The investors were sold shares in empty pools that were going to be filled later by “mortgages that will be assigned.” The terms of the assignment were set forth usually in the PSA. They never did the assignment and later when they tried to correct that problem they found they were in the position of violating the terms spelled out in the PSA wherein the assignment could be accepted by the pool — as to time, content (non-performing loans) etc. As of this point in time, there are approximately 50 million transactions over the past ten years that fit this fact pattern. All of them have fatal defects in title.
“At the foreclosure sale on July 5, 2007, the Ibanez property was purchased by U.S. Bank, as trustee for the securitization trust, for $94,350, a value significantly less than the outstanding debt and the estimated market value of the property. The foreclosure deed (from U.S. Bank, trustee, as the purported holder of the mortgage, to U.S. Bank, trustee, as the purchaser) and the statutory foreclosure affidavit were recorded on May 23, 2008. On September 2, 2008, more than one year after the sale, and more than five months after recording of the sale, American Home Mortgage Servicing, Inc., “as successor-in-interest” to Option One, which was until then the record holder of the Ibanez mortgage, executed a written assignment of that mortgage to U.S. Bank, as trustee for the securitization trust. [FN14] This assignment was recorded on September 11, 2008.”
EDITOR’S NOTE: See how the credit bid was misused. US bank was not a creditor but was allowed by the trustee/auctioneer to accept a dirt low bid from itself to “transfer” title — a transfer that the Massachusetts Supreme Court said never happened because they didn’t own the property. See also how the Court picked up on the issues that lawyers all over the country have been pounding on to the deaf ears of trial judges — that an assignment AFTER the fact is not a way to cure the defect in title. This decision upholds the stability of state laws in all 50 states wherein buyers and mortgage companies may rely on the record at the county recorder’s office and are not subject to claims from third parties who claim to have an interest through an unrecorded instrument that was fabricated at a later time.
“ Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that requires a writing signed by the grantor. See G.L. c. 183, § 3; Saint Patrick’s Religious, Educ. & Charitable Ass’n v. Hale, 227 Mass. 175, 177 (1917). In a “title theory state” like Massachusetts, a mortgage is a transfer of legal title in a property to secure a debt. See Faneuil Investors Group, Ltd. Partnership v. Selectmen of Dennis, 458 Mass. 1, 6 (2010). Therefore, when a person borrows money to purchase a home and gives the lender a mortgage, the homeowner-mortgagor retains only equitable title in the home; the legal title is held by the mortgagee. See Vee Jay Realty Trust Co. v. DiCroce, 360 Mass. 751, 753 (1972), quoting Dolliver v. St. Joseph Fire & Marine Ins. Co., 128 Mass. 315, 316 (1880) (although “as to all the world except the mortgagee, a mortgagor is the owner of the mortgaged lands,” mortgagee has legal title to property); Maglione v. BancBoston Mtge. Corp., 29 Mass.App.Ct. 88, 90 (1990). Where, as here, mortgage loans are pooled together in a trust and converted into mortgage-backed securities, the underlying promissory notes serve as financial instruments generating a potential income stream for investors, but the mortgages securing these notes are still legal title to someone’s home or farm and must be treated as such.
“ The PPM, however, described the trust agreement as an agreement to be executed in the future, so it only furnished evidence of an intent to assign mortgages to U.S. Bank, not proof of their actual assignment. Even if there were an executed trust agreement with language of present assignment, U.S. Bank did not produce the schedule of loans and mortgages that was an exhibit to that agreement, so it failed to show that the Ibanez mortgage was among the mortgages to be assigned by that agreement. Finally, even if there were an executed trust agreement with the required schedule, U.S. Bank failed to furnish any evidence that the entity assigning the mortgage–Structured Asset Securities Corporation–ever held the mortgage to be assigned.”
“ Second, the plaintiffs contend that, because they held the mortgage note, they had a sufficient financial interest in the mortgage to allow them to foreclose. In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage. Barnes v. Boardman, 149 Mass. 106, 114 (1889). Rather, the holder of the mortgage holds the mortgage in trust for the purchaser of the note, who has an equitable right to obtain an assignment of the mortgage, which may be accomplished by filing an action in court and obtaining an equitable order of assignment. Id. (“In some jurisdictions it is held that the mere transfer of the debt, without any assignment or even mention of the mortgage, carries the mortgage with it, so as to enable the assignee to assert his title in an action at law…. This doctrine has not prevailed in Massachusetts, and the tendency of the decisions here has been, that in such cases the mortgagee would hold the legal title in trust for the purchaser of the debt, and that the latter might obtain a conveyance by a bill in equity”). See Young v. Miller, 6 Gray 152, 154 (1856).”
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud |
davidgmills- your action against your “lender” is right on the money. If they cannot prove ownership of the note/standing in a foreclosure action, conversely, why would they be able to prove ownership/standing for any other purpose? Just turn up the heat, make that judge sweat for his having dismissed you with a shrug- YOU ARE IN THE RIGHT HERE. Keep posting here.
Im in a similar position–I was not in default but got fed up with the problems on my loan mod and sued. My investigation led me to believe my note was detached and yes BOA/BAC had no right to collect or loan mod or anything else as I too had the MERS issue. I am a former trial attorney. The defendants have screwed me around procedurally but I finally got part of the case before a state judge who is listening and will let me amend to add back to the state claims the removed qt action on the grounds that the fed qt action does not have all the necessry parties. Like you, I am hoping to create some good case law in Missouri like that in Mass nd Maryland. I will follow you case and I hope you continue to post. I will also ready your link this afternoon. Thanks for sharing.
I have just asked for permission to appeal to the TN. Supreme Court, in my case, Mills v. First Horizon and MERS.
I am not in default on my mortgage. I just firmly believe that my mortgage lien is invalid and unlawful and because I am a lawyer, I decided to do something about it. My lien is similar to millions of others around the country, and if the Court ultimately rules in my favor, it could set a major precedent around the country. Because I am not in default, the bank can’t argue that I am a worthless scumbag who doesn’t pay his debts. That hasn’t stopped the bank from arguing that I am trying to get my house for free; no argument is too unconscionable for a bank, especially when the bank is running scared. Because I am not in default, my case has serious ramifications for all of those mortgages where people have not defaulted, and there are far many more of them than mortgages where the owners face foreclosures. The very last thing banks want is a court telling them that their mortgage notes are unsecured on their mortgages where people are still paying.
My primary claim is that the MERS lien on my property is invalid. MERS is the lienholder now of millions of mortgages, but MERS has never lent anybody a dime. MERS is a corporation with little or no assets and it acts as a strawman lienholder in the place of the real person who is the noteholder. Traditionally, the noteholder and lienholder have been the same entity. But securitzation changed all that. Now the lienholder, in most of the securitized loans from Wall Street, is MERS, an entity the property owner never owes. The note and the lien are now held by separate entities and have become physically separated from each other.
My primary argument is that this physical separation of the noteholder and lienholder creates a huge public deed recordation problem, which I argue makes the lien void as being against public policy. The separation of the note and deed of trust are deliberate and intentional. The public policy nightmare is that through the use of MERS as a strawman lienholder, the recordation process is transformed from a public, transparent and open system to a private, secretive, one.
With these securitized loans, one can no longer go to the deed records and learn the identity of who must be paid to get a release of the lien. All one can find out is that MERS has the lien, but one can’t find out who one owes; so the public deed recordation system now has become a sham. Everybody must now learn what they can from private sources — such as the MERS website and from the websites of entities like Fannie Mae or Freddie Mac who claim to hold many of the mortgages. But in reality, you can’t learn anything from these websites that is of much importance, and you certainly can’t clean up the title problem that is created when a lienholder is not the same person as the noteholder.
I also allege my lien is void or invalid for several other noteworthy reasons. Many of these liens, like mine, state that MERS is the beneficiary of the deed of trust. Several courts have already held that MERS is not a true beneficiary because MERS is never owed anything, and for a deed of trust to be valid it must have a true beneficiary. When a piece of property is sold at foreclosure the proceeds are supposed to go to the noteholder, who is normally the beneficiary. But when the beneficiary is MERS, the proceeds of a foreclosure sale go to an entity that is not owed anything — they do not go to the noteholder who is owed. MERS is really a second trustee or a corporate fiduciary. So one never knows whether MERS actually sends the proceeds of any foreclosure sale to the noteholder. This creates another huge title problem for foreclosed property. But it also creates a problem for the foreclosed owner who has no way of knowing whether the proceeds of the sale of his property actually went to the person who was owed.
I also allege that my note is lost and the lien fails for lack of an enforceable note. A copy of a note is ordinarily not anymore enforceable than a copy of a check is capable of being cashed.
I also allege that the purported noteholder is unknown, and my servicer, as the agent of the noteholder, has no authority to demand payments of me without disclosing the identity of the noteholder, who is its principal. I have asked my servicer for proof of authority to act on behalf of the noteholder, its principal. Until the servicer provides this proof, I have asked for a cease and desist order against the servicer sending me any more payment demands.
And I have asked for many more things – including the return of my payments on my second lien note, which after I paid it off, never had the original note returned to me. Apparently, the bank lost or destroyed my second mortgage note, and thus could not deliver it to me when I paid it off. Without the original note, the bank has no proof that I owed it anything, so I am asking for my money back.
The TN Court of appeals held my case “was not ripe for adjudication” because I am not in default, and because no one is trying to collect against me on my paid off second mortgage lien note. By ruling that my case “was not ripe for adjudication” they avoided all of the critical issues of my case. By every existing legal standard, my case was ripe for adjudication.
My application to the Supreme Court of TN was filed on Friday September, 11, 2011. The Supreme Court of TN does not have to hear my case; it is a discretionary appeal.
I sincerely hope the Supreme Court of TN will take the case because the Court of Appeals reversed/ignored existing law in order to avoid having to address the real issues of my case, and because the opinion is just simply awful and is now the law in TN. Every lawyer I know who reads the Court of Appeals opinion just howls. It is so obvious that the Court of Appeals did everything possible to avoid having to address the real issues of my case; and in so doing, made some really bad law, reversing well established good law.
For those who might be interested, a copy of my application to the TN Sup Ct. can be found here:
http://www.scribd.com/doc/47056911/MillsV-FirstHorizonSupremeCourtBriefAsFiledWithAppendix
See the TN Court of Appeals decision here:
http://www.tsc.state.tn.us/OPINIONS/TCA/PDF/104/David%20G%20Mills%20v%20First%20Horizons%20Home%20Loan%20Corp%20opn.pdf
I have seen trustee’s accept a credit bid from
ABC and then execute a deed to XYZ.. Anyone who has been foreclosed on fairly recently (in time to file a rule 60 ish motion if you still want the fight) might check the recorder’s office to see to whom the trustee actually executed the deed. .
I do not understand why attorneys etal are messing around with QWR’ s when once an action is started, you can begin discovery in 20 days pursuant to Rule 26 or the state version thereof, as demonstrated in Davies, CD CA . I think that’s why some of these pretend lenders prevail in their motions to dismiss – NO discovery.
The only good news is that courts are now more
‘naturally’ suspicious of the pretend lenders’ declarations..
Also, in the Hubbell case in ND CA , when the higher court upheld the bk court’s ruling that’ tender’
was not the first requisite in a rescission action, MERS dropped its proceeding (in my opinion MERS folded) , and I believe the borrower’s loan was modified. This is the only case which I have seen which addressed the true mechanics of
rescission.
Once Wells Fargo filed Motion for an Order for Sale (C.R.C.P. Rule 120), we had a court case in which to file a Response. Because Wells Fargo told property owner that it had to ask the “investor” re forbearance of payments, showing that it no longer truly owns the Note and/or Deed of Trust, we filed to dismiss for fraudulent documentation and have sent Qualified Written RESPA, Section 6, Request to Wells Fargo for full documentation showing chain of title. Wherefore, dismiss foreclosure. Dunno if it will work but am trying. Using Ibanez for “record lender is not the factual lender and has no standing to sue. Good luck out there.
[…] processes. He warns of serious title problems due to gaps in mortgage assignment chains. According to Garfield, “As of this point in time, there are approximately 50 million transactions over the past ten […]
PJ,
I am behind you — AGREE. However, trying to fight it – is like trying to climb a huge mountain!! The reason for this is that — government agencies WILL NOT back you – and courts just do not understand.. Believe me. But, believe this is changing. And, believe your premise is correct.
@ Anonymous… think all, including you can figure out what laws apply here, if people just take the time to look closely at their obligation/loan documents. This is a no brainer, and gets to the root of the problem. First question did “people” get a document/notification that they had to sign when the “servicer” was changed??? Hence endorsing the change of their account number, or where they just “notified” of the change? No further action on their part was required??? have they subjected themselves to ARC payments, direct debits from bank accounts, aka no check, no payment sub/coupon required… aka no records without a tremendous amount of time, effort and financial resources required on the defendant’s part???
Anonymous, let us all know what you will do next time an entity open’s up a credit card in your name without your signature, then fill us in on what law applies!
If I got it correctly, the reason Ibanez was in court was because title companies (finally) would not
insure the deed obtained by the alleged foreclosure. Yahoo!
Gwen Caranchini, please email me.
johngaultwhoam@yahoo.com
Thanks
[…] the title record, especially in view of the IBANEZ Massachusetts Supreme Court Decision, see also ibanez-decision-analyzed, cannot issue a commitment letter much less a policy without adding exceptions to the schedule that […]
P.J.
Much more going on that cannot be posted here.
Not sure about your law — helpful if you post here.
Thanks.
@ Anonymous… wait and see what? Would anyone in there right mind pay a utility bill, credit card bill etc. that made receivables credited to an entity that they did not have a legitimate legal contract with? An entity can not change an account number without written confirmed consent, that is the law.
DyingTruth,
According to Marie McDonnell– means account was sold. And, I agree.
PJ
Ah — good question. Let’s just wait and see.
RE: ACCOUNT NUMBERS. Not quite sure what all are referring to here, but is anyone out there keeping personal records of what they do and who they pay? Would think it rater obvious that sum’thin was up if over the course of time your “account number” to your obligation changed, that indeed would be a home run in court. If your signature was not on a document to which an account was aligned, how then can the you be held “accountable”, and amounts to simple identity theft. Which is a RICO violation.
Why would anyone submit payment to any entity that has changed their “account status”?
reading the order dissing Garfield….how do you claim relief if your are suing someone? what is Relief?
ANONYMOUS,
Yes but what does that red flag mean?
Ian
Marie McDonnell is excellent. And, quite some time ago, – you may recall – I brought up here – that a change in account numbers is “a red flag.”
You guys do realize, that when he says “ARMY OF MAGICAL LEPRECHAUNS”, I think he’s talking about us. So in effect he’s calling us Leprechauns.
I wish Neil would look at things more practically, especially when you can clearly that these judges will never listen to reason or logic. The best thing we can all do is start from scracth, recreate our system of Government and use the mistakes and defects we’ve learned from to not let them happen again.
Our HUGE Government that also “produces nothing” and provides better damage than public service will make our country implode into a slavetrade auction block for China unless we stop them.
Please everyone sign spread around. It takes 30 seconds
Neil post permanent side link or something
http://www.ipetitions.com/petition/alter-and-abolish/
Dying Truth: The mentality of that judge is, “You owe somebody so it might as well be anybody and since these ‘respectable’ big banksters appearing before me would NEVER LIE, there is NO REASON to look further into the case and who cares about due process of law.” I don’t understand why we allow these types of blatant pro-corporate judges on our benches. They should be debenched. I did notice this opinion was rendered before the robo signing, forgery, perjury upon the court and MBS fraud scandal broke loose in MSM. I’ll bet that judge is still singing the same shopworn meme and perjury and fraud upon the court, as long as its done by big bankster’s counsel, is a-ok.
Neil- regarding ‘magical army of leprechauns’- why don’t you send the judge a copy of Dan Edstrom’s securitization flow chart, give him a day to digest it, and then call him up and make sure he understands the whole thing, just to check up, you know. Ask him if he has any questions,or if he is,having read the chart, now qualified to teach a course on the reasons behind the “foreclosure crisis”.
Listen to the unabashed arrogance in this statement concerning the Ibanez ruling from an investement analyst:
“Massachusetts is not the only state where struggling homeowners and their extended families represent a much higher proportion of possible votes than do bankers, so we expect this sort of ruling to appear over and over again,” the analyst wrote in a note Friday.
These people have been totally disconnected from Humanity. The sooner they and their system is undone, the better.
to whoever: 3-603 UCC answers the argument of you want a free house–its not free, its been paid off and that’s the argument you need to make. A LEGAL ONE as well as the one, they did it wrong, they don’t get to profit by their mistakes.
Michelle Nguyen and Lisa Nguyen
SEC consent judgement
Case 8:99-cv-00830
Central Cal US Dist.
NEIL,
JUDGES ARE DISSIN’ YOU!!!!
http://www.scribd.com/doc/46444980/NEIL-GARFIELD-DO-YOU-REALLY-HAVE-AN-ARMY-OF-MAGICAL-LEPRECHAUNS
Dying truth- can you post the names of these charlatans? If you can’t we understand, but if you can, it may help alot of others. I have forged notarial signatures from CA as well as notary being in the employ of the entity filing the assignments,etc.
Abby in CA,
Where have you been?
That link tells a tale similar to mine. I live in OC, the Notary on my Trustee’s Deed, also works at the Partnersip that “bought” the house, recorded it in and works in Westminster, is registered in San Diego and is the sister of the Notary on the Grant Deed on the sale. And get this THEY’VE BOTH BEEN BUSTED FOR FRAUD BY THE SEC TOGETHER.
Gwen and others in nonjudicial states:
If other Non J states follow this ruling it will be a big deal. That’s because this ruling says that the conveyance of a deed of trust to the trustee is a conveyance of real property, and thus it cannot be assigned or conveyed in blank. In judicial states such as NY, we don’t have this problem, because assigning the note and mortgage is not a conveyance of real property, but rather an assignment and conveyance of personal property.
Mass. has it goin on. I remember admiring their state with envy when the AG was suing my lender Fremont while mine cleaned his dentures. The cases that AG Coakley took against them Merrill Lynch and Goldman Sachs were some of the big pieces that helped me put the Fraudclosure/Pen$ion Puzzle together.
Ultimately that insatiable thirst for greed that judges in every state and federal level will begin to wear off (California being the last and even then it never goes away), when they begin not only to realize what @$$hole puppets they look bending over backwards to throw us all under the bus because an Attorney Esq. asked them to, but also when it sinks in the extent of the damage THEY HELPED CAUSE and who’s best interest it was in. This was the same type of pattern that occurred in the Great Depression (don’t know if it will turnout the same), all of the sudden their tunes will change (be a while before that though) after public funding gets cut when they realize that they ate the hand that fead them.
One more item:
take a look at this case on google scholar –
http://stopforeclosurefraud.com/2010/07/26/ny-law-offices-of-steven-j-baum-may-get-sanctions-for-false-representations/
and then the actual sanction judgment –
http://foreclosureblues.wordpress.com/2010/11/26/sanctions-steven-j-baum-pc-for-practice-of-fraud-deception-and-misrepresentation-upon-the-court/
Couple of important things that need to be brought to attention of readers here.
BOA Robosigners? Not even. Received opp papers notarized by a guy in TX. No seal, no stamp, no license number. His notarization confirmed by another guy. Ditto. Check with TX state website for licensed notaries. No such guys.
Second item: UCC 3-603. Collateral source of payment discharges obligation, even if by a stranger to the transaction. Broken record, I know. But use it.
Next item: Bid assignments. BoA credit bids in at the foreclosure sale. Then assigns its bid to Fannie Mae. Referee “sells” to Fannie. Statement of Sale shows all allowances, with nothing left over. BUT WAIT A MINUTE! Bid was assigned to Fannie by atty for BoA at Steven J. Baum’s offices in Buffalo, NY. No authorization from BoA that Baum’s attorney had been given such assignment powers. Further, NO CASH WAS RECEIVED BY THE REFEREE FROM FANNIE MAE. Whoa ! Spoke with the Referee. He says “No cash ever changes hands in these deals.” But judgment of foreclosure and sale says that cash must be received by the Referee at the time he conveys his deed to buyer. Deed conveyance should fail for lack of consideration.
Next item: How did Fannie get into this deal? Hmmm. Well here’s the real deal…Fannie owned the note and mortgage from the get-go. Didn’t pay any cash at the sale because it would have been paying twice. Once when BoA sold it the note and mortgage at inception, and then again at the foreclosure sale.
FRAUD, FRAUD, FRAUD.
Next item: Check out Fannie’s 2009 10-k Report here –
http://www.secinfo.com/dsvr4.rhPk.htm
Read their Business operations pages, 1, 8, 16-25, 43. Fannie is barred by law from originating mortgages by its charter of 1938. Banks back then lobbied to make sure that Fannie and Freddie wouldn’t be able to compete with them in originations, but would have to buy from them in the secondary markets. Fannie does two types of deals: lender swaps and portfolio securitizations. For example, BoA goes to Fan or Fred with a billion in mortgages. They agree to either pay BoA in cash or in Fan Fred MBS. Fan Fred hold the mortgages on their own balance sheets and securitize and sell Fan Fred MBS for their own accounts.
Second option is same as the first, except that Fan Fred securitize the loans for the banks, place them in a trust, and then act as trustee, and issue their own MBS as in first option, and charge trust for guaranteeing timely payment on the MBS certificates. That’s it. That’s all they do. I even called Fan investor services and they confirmed everything in the 10-K as well as clarifying that Fan DOES NOT GUARANTEE THE ACTUAL MORTGAGE AND NOTE to the originator. Only the MBS certificates to their investors.
And note from the 10-K, that both Wells and BoA SOLD about $180 billion each in mortgages to Fan in 2009. Then there is the latest 8-K, wherein Fannie states that BoA is buying back about 12.5K in loans. BoA can’t buy em back if it didn’t sell them to Fannie in the first place.
Re Ibanez-the amicus brief by Marie McDonnell, in the Mass.cases, is a lengthy but concise trail of the Ibanez and LaRace mortgages/notes. These were both private placement securitizations, and she (Ms.McDonnell) could not get copies from Aurora or Lehman,so she got them from Bloomberg Information Services. The Loan #s kept changing throughout her tracking of the paper, indicating a change in owner(not servicer) Her brief was submitted early on, and the atty for the plaintiffs WF & US Bank, used HER COPIES in his briefs! This is perhaps the most thorough chain-of-assignment examination that I have seen.
gwen caranchini,
You make some very good points. But, the reason you may have a valid QT action is because the process of securitization demonstrates invalid mortgage title. This need to be pointed out — as MA did — to judges and courts across the country. There are many judges — like yours — who need to educated. Heard one judge say that elements of securitization “do not register in my brain.”
MA — although only affects MA — resonates across the country — and your judge listened because she recognized that judges in MA do get — what she does not understand. Exposing the fraud in securitization is an education to many judges – who to date — just have not understood. QT and securization fraud are interrelated. We need both. We need continuing exposure of the fraud. MA is a very good start.
Hi Karen Pooley
It was me — technically it is possible — but extremely unlikely.
E. Tolle puts it well!!
I agree that the IBANEZ case is HUGE–but not for the reason that Neil does. Dave Kriegr and I have always felt the way to attack the banks, trustees, mers, etc. and even the value of the notes, was thru Quiet Title/Declaratory Judgment Action for the simple reason that courts can wrap their heads around a qt/dc action and they cannot and do not understand arguments about securitization. You show broken title as Ibanez and you get a declaration that the note is separated from the deedof trust, and you publish for anyone holding the note to come forward, and no one does–well you win hands down. You get a house “free and clear” because that’s the law and THAT’s what Ibanez is about and not some funky securitization argument. Sorry Neil. This proved itself true yesterday afternoon in Court for my own case “Caranchini v. Kozeny & McCubbin (the trustee) et al. Jackson County Circuit Court, Mo. Case no.1016-cv28122, I was there on a motion to dismiss by the trustee of my claims. The judge, educated but not in these cases admitted she did not understand the issues. BUT SHE UNDERSTANDS QT/DC. Part of my case had gottn removed to fed qt, which this judge apparently thinks is wrong. At a scheduling conf when I indicated that I was going to file a new lawsuit in state court and moved to consolidate because the fed case the judge would not remand or add the trustee who I thought was necessary she offered that I should amend the suit in her court and join on claims. Yesterday after hearing about Ibanez (decided 2hrs earlier) she gave me 30 days to amend and add the qt. She had allocated 3 hrs to hear this simple motion because she wanted to undertand the issues in this case and knew I could educate he. At the end she adm she was in kindergartin and I was in graduate school and she did not get a lot of what was going on especially with the securitization, but she got the qt. She also did not understand why the trustees are being held and dismissed the claim against the trustee for attempted wrongful foreclosure but left in the claims against the trustee for breach of fiduciary duty and indicated I could add to those claims. But in my opiinion she asked the key question of the trustee-DO YOU HAVE THE NOTE? WERE YOU GIVEN THE NOTE BY THE BANK? HAVE YOU SEEN THE ORIGINAL NOTE? DO YOU KNOW IF THE NOTE HAS VALUE? The trustee answered no to all of these questions. What does this lengthy hearing tell me? KISS ==She wants the quiet title and declaratory judgment action with everyone in it “up front” in the pleadings, she wants an explanation on why I should not get a “free house” and listened to my arguments (including one that I made that if she left the court house ran a red light because she believedher husband was dying, got caught on camera and told the traffice judge she had a legitimate reason for running the red light and “everyonedoes it” the judge wuld still say–pay up” Its arguments like that that get across the argument of why its not a get rick quick scheme–its about the banks violating the law and having to pay te penalty just like everyone else who violates the law–the argument is attacking the wrong person, the borrower and not the bank. I now have 30 days to amend wichI will do. The fed judge will be ticked that I will move to dismiss that case but he has failed to follow Mo. law and refuses to add necessary parties. I have made my record on that in his court. He has even failed to follow ct rules on processing the case. As Judge M said–these are developing cases with new law and we have to be open o listening and understanding, but we also have to follow the law. A good day and I went home happy but exhausted. For the first time since I started this I have a lawyer who is listening, willing to be educated and understands about paperwork that is wrong (we looked at the paperwork i my case and she undertood that you can’t do a successor assignment when the assigning person did not get the authority to assign to a year AFTER the successor assignment was filed–she got that you don’t have a notary in one state and the peson whose signature they are notaring in another state
I like “Whips” post. I too had a corrupt judge Alice Schlesinger of New York Supreme that gave my two properties, to corrupt title attorneys from Fidelity National Title and Coronet Title that are holding nothing but forged deeds.
How much money do you think she received for that decision?
I can Hear the FLORIDA Circuit Court Judges rolling over in pain on this one!
Most Florida Judges are Owned by Outlaw Bankers these days, and have successfully allowed BANK & BANK LAWYER FRAUD to pass through their Arrogant Courtrooms at the 13th Judicial Court in TAMPA FL !
Hey JUDGE JAMES BARTON! No more hiding under your desk! No more Corruption in your court room! No more playing Stupid, while your Bank Buddies run your court room!
Great decision in MA. Glad to hear it.
To trespass unwanted:
Some people file BK to stave off foreclosure…not because they are getting rid of debts.
BK buys time.
The appraisal was hyper inflated , they ( the banksters) conveniently collapsed the values within neighborhoods to at least 65% of the original closing amount, they will not provide accountability plus they slandered home titles across the US. I can only figure they were not the party in fact who loaned the money, obviously they stole each of the payments
and never paid the real creditor and now they are trying to steal the house from under true home owners feet. Being delinquent is not a crime, Foreclosure is not a crime and neither is bankruptcy.
But fraud and theft are crimes. Some one needs to be jailed and it will not be me !
YEP I am mad as hell. Like the A – MAN states NEVER AGAIN !
from Courthouse News Service
Wells Fargo Loses Bid to Dismiss Fraud Claims
By MATT REYNOLDS
Homeowners who say Wells Fargo Bank duped them into loan-modification programs to stave off foreclosure survived a legal challenge to their case in San Francisco federal court.
U.S. District Judge Joseph Spero pared the class’s suit on Monday, rejecting claims for breach of contract but upholding allegations that the bank’s debt-collection practices were unfair, deceptive and fraudulent. He also permitted the plaintiffs to seek restitution for an installment payment they made in March 2010, since the bank had already foreclosed upon them by that point.
Lead plaintiffs Gustavo Reyes and Maria Teresa Guerrero claimed that, after they defaulted on their mortgage payments, Wells Fargo offered to freeze foreclosure proceedings against them if they signed a modified loan agreement.
But after they signed the loan and made payments over four consecutive months, the bank still foreclosed on their home.
Wells Fargo asked the district court to throw out the suit, arguing that the homeowners’ breach contract and fraud claims were fatally flawed.
Spero instead found that the homeowners may be entitled to damages under California’s Rosenthal Act, which protects consumers from improper debt-collection practices.
“The court cannot say, as a matter of law, that the statements made in the offer letter would not have been misleading to the least sophisticated buyer in light of: the words ‘good news’ at the beginning of the letter; the language in the letter indicating that the agreement was being offered based on a review of the recipient’s financial information; the statement that foreclosure counsel would be instructed to delay foreclosure proceedings as long as the recipients made timely payments under the agreement; and the use of the words ‘trial period’ to describe the agreement,” the ruling states.
While Spero tossed the homeowners’ contract claims for failure to state a claim, he upheld the homeowners’ claims under state law for unfair, unlawful and fraudulent business practices.
“Because plaintiffs in this case made payments to Wells Fargo as a result of the business practice that is the subject of their unfair competition law claim, the court concludes that they have standing to assert such a claim,” Spero wrote.
UDAP (Unfair and Deceptive Acts and Practices)
All states have a “mini-FTC” (Federal Trade Commission Act) has teeth.
Forced to sign a modification because the sheriff’s sale was pending? And the Plaintiff wasn’t the mortgage holder of record at the time the action was commenced?
BINGO
let’s take that one for a drive……..
The Beginning of the End. or the End.
The big avalanche for the Banks is in full swing.
The Wall Street Journal is getting it. The WSJ in all fairness is not a real estate savvy newspaper so this makes it even sweeter. Actually they are more in favor of the Banksters.
http://online.wsj.com/article/SB10001424052748704055204576068273518378108.html?mod=WSJ_hp_LEFTWhatsNewsCollection
Paul R. Collier III, a lawyer in Cambridge, Mass., represented Antonio Ibanez, one borrower in the case. “It’s been pretty clear and becoming ever more clear that the securitization industry has behaved as though it were immune from consumer protection laws, state homeowner protection laws and real estate regulations in its underwriting, securitization and foreclosure practices,” Mr. Collier said. “I am quite confident that this is merely the first petal off the rose with regard to predatory foreclosure practices.”
The banks involved in the matter had asked the Massachusetts court to make its ruling prospective, meaning that it would affect only new foreclosures. The court declined to do so, allowing foreclosure cases that have been completed to be reopened and brought under scrutiny.
Let’s kick some bankers butt!
Let’s look at the simple fact that the Mass Supreme court rejected the “mortgage follows the note” argument. Folks, that’s huge when it come to MERS.
Look at R.K. Arnold, head of Merscorp’s testimony to Congress on 11/16/2010:
A fundamental legal principle is that the mortgage follows the note, which means that as the note changes hands, the mortgage remains connected to it legally even though it is not physically attached. (BOGUS)
In other words, the promissory note is enforceable against the property because of the mortgage, but the mortgage instrument itself is not independently enforceable as a debt. This principle is not changed when MERS is the mortgagee because of the agency relationship between MERS and the lender.
Mers is quietly moving the deck chairs while the bandmembers look for lifeboats. Start sending off the distress signals….Mers is taking on water….
My personal belief is that “Agency” is the next thing to be shredded. Mers is a sham that was successful when the ship was upright. It’s going down now. VP’s who make no money, and yet sign for 20 banks will be soon eviscerated.
Look back in Neil’s posts….Bellistri’s lawyer successfully argued that the Note and Mortgage were split because MERS’ name appeared on the Note but not the Deed of Trust at the time of origination, and therefore, MERS doesn’t have any right to assign the Deed of Trust.
As Neil said, “factually, the note and DOT are split and according to the Restatement 3rd (of the UCC,) they can never be put back together again.
This is way too much fun. Let’s all figure out a way to hand millions of houses back to good, hard working folks who were just doing what they do, raising kids, grilling hot dogs….flag raising on holidays, supporting our vets, just plain old American stuff. Not this crap being foisted upon us.
Let’s end this usury crap here and now. A new day will dawn.
Can’t remember who said this could go to SCOTUS. This is my understanding…..this cannot go to SCOTUS, as foreclosure is a state issue….state by state. Not governed by federal law. So, this decision is the end of the line for MA. This is my understanding.
trespass unwanted, it doesn’t have to be nearly as dreary and heavy as you make it out to be. Only by identifying with the material will folks succumb to the stresses, as too many do. At the same time, many of us, my Self included, see this as simply a game that needs to be played out. No hatred, no losing one’s soul. Read the Gita and realize that all of life is a battle in one’s mind. In reality, all is perfect, and pure peace.
Remember, merrily, merrily, merrily….life is but a dream. I’ve decided to go with this whole thing and it’s working for me. As soon as I’m done with the legals, I plan on opting out, never to set foot in a bank again. The future is so bright, you gotta’ wear shades! Hail Mass! Hail Assange! Let’s get this party rockin’!
Anonymous, I can’t imagine that the banks would risk taking this to SCOTUS. That would signal the end of their world as they know it if upheld. And it probably would be, as the MA Supreme court is, according to Adam Levitin, the best in the land. He writes:
The ruling should (but surely won’t) led to a ratings downgrade of every securitization trust with MA properties in it. The documentation sloppiness in Ibanez was hardly unique.
Notice how MA rejected the “mortgage follows the note” argument and also the “assignment of mortgage in blank” argument that ASF has argued is beyond reproach. There are (in my opinion) stronger arguments about the mortgage notes, but that wasn’t raised in this case.
The MA Supreme Judicial Court is widely considered the best state court in the country. No one questions the quality of the jurists on the court (unlike in some other states). It’s one of the few state supreme courts that can routinely compete with federal appellate courts in recruiting top clerkship candidates and the only state court I know of that has had clerks go on to US Supreme Court clerkships.
As we speak, the bankers, just like Old Man Potter, are wretching their slimy hands trying to figure out who to bribe and how to buy their way out of this debacle. Possibly Obama’s new Chief of Staff, the VP from Chase will make it all better for them.
Although I know the banks have quadrillions of our dollars at their disposal for legal defense, the term disposal (as in garbage disposal, dumping trillions in soured loans) may take on a whole new meaning if this ruling went on up the chain to SCOTUSVILLE. The stakes are so high here as to be unfathomable.
Yeah for the little people. Maybe the meek will inherit the Earth, before it’s foreclosed upon!
First of all, in the language of Love, we have to stop fighting each other. There is more going on to wake us up and we still deal with conflict by wanting more conflict. If they make us whole, let’s let it be.
Second, there was a Bloomberg report that 1.5 million bankruptcies happened last year on top of the 1.4+ the year before…so those people who discharged their debt to keep their home, got their remedy.
This is a time where the wheat is being separated from the chaff. We don’t know who we are and we have animal instincts to fight, fight, fight. But I love you no matter your decision. By Divine Right, you can choose how you want to solve any problem and deal with the consequences of your actions.
This case, they could not sell the homes after all they had done, so they needed a court to clear the title because getting title insurance was a problem.
Before you get all exited watching the right hand of the magician, keep and eye on the left hand too.
These banks have been bailed out. The Fed (private bankers) bought their toxic debt. The govt, Fannie Mae and others have sued for them to take back their bad MBS. The court ruled what titles they thought they have, if gained against the law are void. We’ve already seen them play with the market one day with a huge jump and drop that made some poor people rich and some rich people poor.
All it takes is for them to say they need another bail out or they will go bust taking 401Ks, IRA’s, 401Bs, basic checking and savings with them and Americans will beg for them to be saved.
With clouded titles the people who get their homes back may have a mixed blessing. Imagine trying to sell that thing because you got a job somewhere or want to move closer to family.
I see why we’ve been walked over. We know nothing but conflict and we toss the conflict ball back and forth to each other.
I told a guy the difference between those of us that lost our homes and those that still have their homes is: Our homes were stolen but we still get to keep our money, and their money is being stolen and when they finish paying for the house, they will find out they paid the wrong person and don’t own the house.
This is a time to wake up and move where your heart truly is. It’s all a complex plan that is still going according to plan.
Light and Love,
Trespass Unwanted, adult, allodial, corporeal, live born, born alive, whole blood, life, freeman, free
dny
Biggest reason — public policy. But, believe me, they do not want it there.
What would be the basis for taking this case, arguably about the sanctity of state’s land recording laws, to the US Supreme Court? Interstate commerce? That would be rich.
Ian,
Exactly right — as to Zoe question.
John,
Many have know that.
Many do not know that the Ibanez case COULD go to the Supreme Court of the U.S. But — I doubt it. The banks were killed in decision — and do NOT WANT Supreme Court of U.S. confirmation!!! Such confirmation would kill securitization — forever.
And, despite what readers here — such as Patrick Pulatie think — MA case is a big deal. Affects MA but will be used in other state action as precedent.
From another website:
“This case is important for a variety of reasons. First, it would set a binding precedent in the State of Massachusetts, and could potentially invalidate thousands of foreclosures in that state. Further, it creates a persuasive precedent that other states could look to when deciding similar cases. Last, it sets up the potential that this case could move to the Supreme Court of the United States. If these types of mortgage transfers are deemed invalid, banks could face trillions of dollars in liabilities from incorrectly securitized mortgage backed securities.”
But the banks have already have already been bailed out. Others now have to be bailed out. And, who might they be??
Lost in translation- excellent point- my answer is “I don’t see why not?” Not only short sales, but any (all) unlawful foreclosures in the last 20 years would be okay in my book. Any lawyers out there to weigh in on unjust enrichment? How about plain old fraud on the court? You know, phony evidence, bogus assignments-If someone short saled(sp) their house because they were being threatened by someone WHO DIDN’T OWN THE RIGHT TO DO SO? and took a loss? or split the family up? or worse?
ZOE’s question-“if US Bank and WF were assigned the mortgage (the court says no) then why did they have to PURCHASE the mortgage at the FC sale?
I am not sure of the exact timeline, but when someone at the two banks realized that they didn’t have a clean chain of title,either before or after the FC sale, they thought they could launder it up for resale, not knowing that they were headed to court, where all would be exposed.
I didn’t realize that the federal reserve is a private organization just like federal express. Click to view…..http://www.youtube.com/watch?v=1EWS0yEqWco
lost in translation
Try — fraud on the court.
leapfrog
Yes!! Good answers. Now can someone tell me why — if US Bank and Wells Fargo were “assigned” the mortgage (which court says no) — why did they have to purchase the property AFTER the foreclosure?? (Zoe’s question).
COULD BORROWERS THAT WELLS FARGO, As Trustee for US BANK granted Short Sales, now be sued for filing wrongful foreclsures and UNJUST ENRICHMENT for accepting the money for the short sale, when they owned NOTHING???
Abby in CA,
Great post!!! Cannot fix fraud with more fraud!!!
Discharges in order.
BIG BREAKTHRU ON INVALID ASSIGNMENTS —
http://www.scribd.com/doc/46484089/New-Grandma-in-California-Does-Sleuthing-and-Discovers-Major-Robo-Notary-Operation
First Denial On MA SC Decision: US Bancorp
http://market-ticker.org/akcs-www?post=176753
FINALLY THEY GET IT! YES!
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