ANOTHER CALIFORNIA BANKRUPTCY JUDGE SLAMS PRETENDER LENDERS AND MERS

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SEE MANN order_br_cally_so_dist_salazar_vs_us_bank_denying_mfrs_mers_4_11_2011

Bankruptcy Judge Margaret M. Mann GETS IT!

1 Posted by Dan Edstrom on April 12, 2011 at 8:19 pm

Bankruptcy Judge Margaret M. Mann GETS IT!

By Daniel Edstrom
DTC Systems, Inc.

Coming off of the heels of in re: Agard (http://dtc-systems.net/2011/02/mers-agency-york-bankruptcy-court-agard/), the Honorable Judge Mann from the United States Bankruptcy Court Southern District of California took 76 days to review the Motion for Relief From Automatic Stay for the in re: Salazar Chapter 13 bankruptcy (Bankruptcy No: 10-17456-MM13).   The findings of fact and conclusions of law were an amazing reading that confirms many of the issues we have been discussing in regards to loans, securitization and foreclosure.  Like Judge Grossman in the agard case, Judge Mann goes to great lengths to research the details that are applicable to this case.   Here are some highlights:

  • Assignments must be recorded before the foreclosure sale

  • Civil Code Section 2932.5 applies to Deeds of Trust

  • Recorded assignments are necessary despite MERS’ role

  • The Gomes case does not apply [to the Salazar case]

  • US Bank or MERS cannot contract away their obligations to comply with the foreclosure statutes

  • As a matter of law, Salazar’s acknowledgment cannot be read as a waiver of his right to be informed of a change in beneficiary status.

  • MERS System is not an alternative to statutory foreclosure law

  • US Bank as the foreclosing assignee was obligated to record its interest before the sale despite MERS’ initial role under the DOT, and this role cannot be used to bypass Civil Code section 2932.5.  Since US Bank failed to record its interest, Salazar has a valid property interest in his residence that is entitled to protection through the automatic stay

  • Cause does not exist to grant relief from stay

  • Denying relief from stay at this time is the least prejudicial option for both parties

 

28 Responses

  1. It’s an awesome article in support of all the web visitors; they will take benefit from it I am sure.

  2. Thank you, I’ve recently been looking for information about this subject for ages and yours is the greatest I have came upon till now. However, what in regards to the conclusion? Are you positive concerning the source?

  3. […] ANOTHER CALIFORNIA BANKRUPTCY JUDGE SLAMS PRETENDER LENDERS AND MERS Posted on April 14, 2011 by Neil Garfield […]

  4. P.S.

    5) The Gomes case is also flawed because, the borrower can not grant MERS the right to assign the NOTE, only the owner of note can legally do that.

    Source: https://sites.google.com/site/mersfatalflawsincalifornia

  5. I think that everyone is missing the #1 problem MERS has in CA.
    MERS is a Non-Authorized Agent and can not legally assign the Promissory Note for the following reasons.

    1) Under established and binding Ca law, a Nominee can’t assign the Note. Born V. Koop 1962 200 C. A. 2d 519[200 CalApp2d Page 527, 528

    2) On most Notes, the term Nominee is not included and MERS never takes ownership, making it unenforceable and unassignable by MERS.
    Ott v. Home Savings & Loan Association, 265 F. 2d 643 [647,648

    3) Ca Civil Code §2924, et seq. is exhaustive and a Nominee is never included as an acceptable form of “authorized agent” in a judicial or non-judicial foreclosure.

    4) In regards to the Gomes v. Countrywide, the court simply failed to address and apply these facts and binding definition of a nominee.

    Source: https://sites.google.com/site/mersfatalflawsincalifornia

  6. HERE IS THE MOTION FOR RECONSIDERATION RECENTLY FILED THIS PAST WEEK AGIN NEW CENTURY LIQUIDATING TRUST UP IN THE NEW CENTURY MORTGAGE & HOME123 CORPORATION BKR

    http://www.scribd.com/doc/55961911/MOTION-FOR-RECONSIDERATION-IN-NEW-CENTURY-LIQUIDATING-TRUST-MAY-2011

  7. and..since the assignments are invalid due to the illegal notary acts & negligence by the employee notaries of New Century Mortgage and Home123 Corporation, that means the assignments never proprely made it into the securities trusts on time and the investors bought securities which had nothing in them.

    One pool had over 4200 loans in it which Chase bought. JPMAC2006-NC1.

    This securities trust is in a lawsuit by some institutional investors, such as MISSPERS ( the lead plaintiff) and it is against Chase!!

    The real root of the problem is the loan originator New Century Mortgage and Home123 Corporation, the most notorious subprime and predatory lender in the world.

    Why have they been in bankurptcy since 4-2-2007?

    They still have 50 million in cash after having settled with the likes of Goldman, Morgan, Chase etc. (50 million as of 12-31-2010)

    The Judge constantly worries and says he is worried about the ‘FLOODGATES’ opening, meaning more homeowners filing proof of claiims and adversary proceedings up in his court against the New Century Liquidating Trust.

    The attorneys for the bkr trustee also moan about they hope the ‘FLOODGATES’ DON’T OPEN.’

    Right now there are over 10,000 docket ids in this bkr.

  8. Lets not forget just how ‘badazz’ New Century Mortgage and Home123 Corporation really was

    The Judge in their bkr case ordered an independant examiner to make a report…..here it is and it is known as ‘THE MISSAL REPORT’ AND IS OVER 500 PAGES!

    http://www.scribd.com/doc/31638583/New-Century-Mortgage-Missal-s-Report-to-Judge-Carey

  9. Both California women believe that the mortgages
    remain with the New Century Liquidating Trusts as they were never properly transferred. This could involve thousands upon thousands of mortgages
    that were allegedly transferred even after New Century Mortgage and Home123 Corporation filed for their bkr on 4-2-2007.

    Then there is the court’s problem with the judge’s 2008 orders lifting the bkr stay so servicers can foreclose. The court is trying to say only for servicers to foreclose but not for homeowners to defend against foreclosure.

    http://www.scribd.com/doc/52965973/HAS-THE-DOOR-BEEN-OPENED-FOR-ALL-VICTIMS-TO-SUE-THEM-2008-BLANKET-LIFT-STAY-ORDERS-BY-JUDGE-CAREY-IN-NEW-CENTURY-MORTGAGE-HOME123-CORP-CHPT11

  10. Delaware Bankruptcy “Law” blog talks about
    two fighting women. See blog post below.

    Current update- both women have filed Motions for Reconsideration and are prepared to appeal and go to Supreme Court.

    One of them had discovered new evidence in the form of notary journals by employee- notary of New Century Mortgage and Home123 Corporation. This was discovered shortly after her settlement.. The journals had no individual line items for each assignment, as proscribed by California notary laws.

    She asked the judge for an Order to Show Cause to have the bankruptcy trustee produce all notary journals for the 5 or 6 employee notaries.

    Be aware that these employee-notaries performed their illegal acts, in many many cases (thousands of assignments) AFTER New Century declared bankruptcy on 4-2-2007.

    http://delawarebankruptcy.foxrothschild.com/2011/05/articles/bankruptcy-case-summary/multiple-decisions-in-new-century-trs-holdings-inc-hold-when-you-settle-a-claim-you-get-what-you-contract-for/

  11. […] View the original article here Tags:ANOTHER, BANKRUPTCY, CALIFORNIA, Judge, LENDERS, PRETENDER, SLAMS. This entry was posted on Monday, April 25th, 2011 at 9:21 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a comment, or trackback from your own site. You can . « 11 x Guided Meditations for Spiritual Growth + 18 Free eBooks Leave a comment Name (required) […]

  12. I finally got a response from my board of supervisor’s representative on what my county is doing about the MERS problem. They joined a 2010 suit! YAY! Every time I would complain to the recorder clerk’s office, some clueless clerk would tell me everything MERS was doing (or not doing for that matter) was “just fine”. It was so frustrating to penetrate the layers of bureaucracy and get a response. I feel good about finally getting an answer that I like and seeing that my county officials see MERS as the sham it is. YAY!

  13. I was just going back thru some of the info here and came accross “Congressional Oversight Report (MERS Discussion)” from Novermber 17 2010.

    The report said:
    ‘A mortgage does not need to be recorded to be enforceable as between the mortgagor and the mortgagee or subsequent transferee….”

    Do any of the people who work on these committees have any background in real estate law at all? Do they bother looking any up at all before penning their
    reports? The first part is true – “a mortgage does not need to be recorded to be enforeceable as between the mortgagor and the mortgagee” , but it is NOT
    true -or at least not always true – that a mortgage is enforceable as between the mortgagee (borrower) and a “subsequent transferee”.

    I haven’t checked all states, of course, but I have cited Nevada statute 111.315 numerous times in hopes of inciting readers to look at their own state statutes for what would be called a “mirror statute”.
    Here is NRS 111.315 again:

    “Recording of conveyances and instruments: Notice to third persons. Every conveyance of real property, and every instrument of writing setting forth an
    agreement to convey any real property, or whereby any real property may be affected*, proved, acknowledged and certified in the manner prescribed in this chapter, to operate as notice to third persons, shall be recorded in the office of the recorder of the county in which the real property is situated or
    to the extent permitted by NRS 105.010 to 105.080, inclusive, in the Office of the Secretary of State, but shall be valid and binding between the parties
    thereto without such record.”

    Real property is “affected” by a mortgage or deed of trust (NV uses the dot).
    This statute says that a conveyance (deed, say) or instrument (deed of trust or assignment, say) is binding on the parties to the instrument, like ABC
    assigns to XYZ and the assignment is executed but not recorded. But, this statue also states that it is not binding on third parties.
    The two parties to the assignment are ABC and XYZ. It’s binding on them. It is NOT binding on anyone else, any “third parties”. This includes the borrower – the borrower is not a party to the assignment. Since the unrecorded assignment is not binding on the borrower, it cannot be enforced against the borrower until it is recorded.
    Therefore, XYZ, the ‘subsequent assignee’, may not come after the borrower’s property until the assignment is recorded.

    I’m going to hazard a guess that many states have a mirror statute. Just the fact that Nevada (and God knows how many others) has a statute contradicting this statement in the report makes me crazy. It’s dissemination of false material and that’s just plain
    dangerous.

    All state statutes are online somewhere. Try
    “Maine recording statutes”, for example, to find yours.
    I do not understand why more people don’t do this.

    If you live in a state which has such a statute, you can perhaps shut down your pending foreclosure without much of a fight if the alleged assignment has not been recorded.
    This statute and ones like it in other states are not helpful to those who have already lost their homes because the court will say you could have brought this argument before the sale and didn’t.
    I don’t agree but they didn’t ask me!

  14. @cc hall – You asked if there were cases wherein MERS said it had no interest in notes. Yes, In Mers v Nebraska Dept of Bking and Finance, to which I posted a link. (to MERS Appeal Brief)
    Here is another:
    Stewart v BAC, Deutsche Bank Nat’l Trust Co, and MERS, 10-2033, D.C., N.D. IL

  15. It seems to me that this decision may be saying that assignments must be recorded before the NOD (see p.11, lines 3-5). Does anyone concur?

  16. Don’t get your hopes up yet kiddies, the Fraudclosure industry has many more Aces in the hole and plenty of dirt on all judges state and federal. And I have yet to see any one of them call anybody out on the fact their pensions were defrauded and all homes were foreclosed illegally, because SECURITIZING MORTGAGES IS IMPOSSIBLE AND PAYMENT FOR EVERY LOAN WAS ALREADY RECEIVED IN FULL.

  17. URGENT

    WORDPRESS SERVERS HACKED AT ROOT LEVEL

    http://www.informationweek.com/articles/229401577?cid=RSSfeed_IWK_security

    also:
    http://en.blog.wordpress.com/2011/04/13/security/

    Neil and other WordPress Customers- Please pass on

  18. this is some of the better news..
    thx – kickboxer& “THE A MAN,
    EXCUSE ME MAY G-D ALMIGHTY INFLICT THE 10 PLAGUES ON THE BANKSTERS.”
    I have faith that He will. The entire corrupt system will be destroyed and we will watch the vultures pick the meat off of them.

  19. Quote:

    “THE A MAN, on April 14, 2011 at 8:05 am said:

    EXCUSE ME MAY G-D ALMIGHTY INFLICT THE 10 PLAGUES ON THE BANKSTERS.”

    I have faith that He will. The entire corrupt system will be destroyed and we will watch the vultures pick the meat off of them.

  20. EXCUSE ME MAY G-D ALMIGHTY INFLICT THE 10 PLAGUES ON THE BANKSTERS.

  21. Monday night is the start of Passover. The Pharoahs didnt get it either. We must inflict the 10 plagues on the Banksters.

    HAPPY PASSOVER NEIL GARFIELD FAMILY AND ASSOCIATES.

    TO MY CHRISTIAN BROTHERS AND SISTERS HAPPY EASTER.

    AND TO THE REST OF HUMANITY HAPPY HOLIDAYS.

  22. “Lenders” are not saying “UNCLE.”

    See below quote from the article. “More normal level of foreclosures”?????? Are these guys kidding??? How did foreclosures become a “Goal” to be achieved???

    Why Foreclosures Could Be Set to Rise Again
    By THE ASSOCIATED PRESS

    “The bottleneck is opening up a little bit and we’re starting to see the first inklings that we might be getting back to more normal levels of foreclosures,” said Rick Sharga, a senior vice president at RealtyTrac.

    By normal levels, Sharga means the elevated pace of foreclosure activity that led to more than 1 million homes being taken back by lenders last year.”

  23. California Civil Code Section 2932.5

    Legal Research Home > California Laws > Civil Code > California Civil Code Section 2932.5

    Where a power to sell real property is given to a
    mortgagee, or other encumbrancer, in an instrument intended to secure
    the payment of money, the power is part of the security and vests in
    any person who by assignment becomes entitled to payment of the
    money secured by the instrument. The power of sale may be exercised
    by the assignee if the assignment is duly acknowledged and recorded.

    ASSIGNMENT must be recorded.

  24. Yes, it is about time that California judges start applying the law. I was beginning to think all Cali judges were bought and paid for.

  25. The tide is slowly turning. I have been waiting for this for three years. California has been one of the worst-hit states in the fraudclosure crisis. It is good to see something come around for them. California has very expensive real estate, and the banksters want to get their hands on it. I hope there is a giant surge of lawsuits in or out of bankruptcy court. Kick their butts. Burmese8@yahoo.com

  26. Attorney blog with dozens of motion to dismiss complaint examples.

    http://www.stayinmyhome.com/blog/?p=1310

  27. John posted this 2 days ago. thanx john and thanx dan edstrom.

  28. But this is only one judge and the Appelate courts must recognize.

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