DOES THAT LAWYER REALLY REPRESENT THE “BANK” — REALLY?

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EDITOR’S NOTE: One of the first things that happens in any foreclosure case is that someone contacts the borrower saying who they are or who they represent. I contend that those representations should be confronted. It often happens, as Charles points out below, that more than one law firm asserts representation of a particular would-be forecloser. It happens even more that the party in whose name the foreclosure is initiated knows nothing about the law firm or even the foreclosure. And in the case of assignments or substitution of trustees and so forth, there is every possibility, if not probability that the assignment is void, and that the substitution is invalid because of robo-signing and other issues. Don’t give an inch.

I think that amongst the causes of action supporting a temporary restraining order, is a demand for authority to represent levied against the lawyers involved and a challenge to the authority of the “new” trustee as having been appointed in violation of the original deed of trust. A demand letter to the substitute trustee and/or lawyer requiring production of proof that they are who they say they are and that they have the actual authority to act on behalf of anyone is appropriate. If appropriate (check with lawyer licensed in the right jurisdiction) accuse them of violating a specific cited statute in your letter since you will use the letter as an attachment to your lawsuit. You might also want to add that you believe the creditor is still being paid by the servicer and there is no default in the obligation set forth in the note. 

This is why a COMBO title and securitization report, attached to your complaint, will give you more traction, along with your denial of the default, denial that they are the creditor, denial that they have the authority to initiate foreclosure, and denial that they are the party empowered to submit a credit bid. On this score, a declaratory action seeking a declaration of rights in the event of an auction sale would be appropriate.

The would-be forecloser might prevail on the issue of whether they have the power to initiate the foreclosure proceedings — but your allegation could be that even if that is true, they are not the creditor and that they intend to make a credit bid at the auction in lieu of cash. It being a present controversy because of their initiation of foreclosure, the Judge would be forced to rule on the issue of the identity of the creditor and an accounting for the amount due to determine the proper amount of a credit bid.

This could force them to start paying cash at auction sales, which we all know they won’t do since they are intent on getting their free house on a loan transaction they never funded or paid for.

If they follow true to form, they will correct prior correspondence, giving you more ammunition to ask why and how they made such a mistake and why you should believe them now. If they cancel a sale date, I would suggest a self-serving letter acknowledging the cancellation of the sale date and stating that it was because of the defects in prior correspondence. .

submitted by Charles Cox

Interestingly, after being told in the email from the Severson & Werson attorney that he was “handling the defense of defendants” and having been told by Tim that we are unable to grant his request for an extension of time to answer the complaint (due by today)…Tim got another call from an attorney from a different firm saying they were representing Bank of America and they wanted an extension as well.  Hmmm…right hand not knowing what the left hand is doing?   Nahhhhhhhh  And yes, they were told to go pound sand as well.

I am one to jack with those guys as much as possible and as such, I didn’t want to serve the Adversary Complaint until the requisite 14 days after the summons was issued (they had 30 days from the date the summons was issued to answer the complaint, not from date of service!).  I wanted to give them as little time as possible.  At Tim’s insistence, I went ahead and served them on the very day the summons was issued giving them an extra 14 days which obviously didn’t do them any good.  It will be interesting to see what they produce today (I assume they’ll produce something).  If not, Entry of Default will be filed hopefully tomorrow even if it can’t be dealt with until Monday.

Should be “interesting”.

30 Responses

  1. pattie, are you in california? i have a pending case against pite duncan and hsbc, wells fargo, mers and ets. the attorneys represented defendants is a law firm namen severson and werson here in sf. i have hearing on friday .

  2. I am facing Pite Duncan from San Diego, representing Citigroup on the objection to proof of claim in my bankruptcy. However in the adversary that I have filed against both Wells Fargo and Citigroup, Severson & Werson is representing both banks. Seems strange to have to seperate attorneys for Citigroup.

  3. MERS Ruling in Michigan Leaves Title Companies Hesitant on REO Sales
    The Michigan Court of Appeals has ruled that MERS does not meet the requirements under state statute to foreclose by advertisement because the company does not own any interest in the debt. The judgment does not apply to judicial foreclosures conducted by MERS, but observers warn the decision could void thousands of foreclosures in the state, including properties that have already been sold to new buyers. Local reports say title companies are canceling closings on some bank-owned homes in light of the ruling.

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    Freddie Mac Offering Selling Agent Bonuses to Move REOs
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    MERS Ruling in Michigan Leaves Title Companies Hesitant on REO Sales
    The Michigan Court of Appeals has ruled that MERS does not meet the requirements under state statute to foreclose by advertisement because the company does not own any interest in the debt. The judgment does not apply to judicial foreclosures conducted by MERS, but observers warn the decision could void thousands of foreclosures in the state, including properties that have already been sold to new buyers. Local reports say title companies are canceling closings on some bank-owned homes in light of the ruling.

  5. .
    tnharry

    Your point is taken, but it must not distract from the focus of this post:

    The racketeering fraud of a BOGUS client/atty relationships!

    They should be challenged BEFORE the (bogus) complaint is even filed!
    .

  6. Whatever @carie. I was trying to offer a little insight and you went back to belligerent…

  7. I personally don’t think challenging ANY illegal BS is a “waste of time”…

  8. My point was that challenging representational authority is a waste of time. Determining real party in interest (which Neil has devoted article space to recently) is the right direction to go and is completely attainable.

  9. .
    Thanks tnharry. An impostor, by definition does not represent the bona fide creditor nor the real party in interest, which supports your point.

    An impostor is usually a self-dealing debt buyer hiding behind a BOGUS client/atty relationship.
    .

  10. tnharry

    The issue of WHO is paying WHO is ALWAYS material, in any dispute, and again, Neil says correctly: FOLLOW THE MONEY.

    “Don’t tell me where your priorities are. Show me where you spend your money and I’ll tell you what they are.” ~James W. Frick

  11. I’m sorry CEA, but that argument doesn’t make sense either. Your issue has nothing to do with whether the attys are representing the plaintiffs with authority. It really is whether the plaintiffs are the “real parties in interest”. Trying to fight the lender shell game at the atty representational level is a waste of resources and one you can’t win. Frankly, even if they’re retained and paid by servicers or someone else, they could still be representing the plaintiff/lenders. If I pay a lawyer to represent you, his representational authority extends to you, not me. No real difference in corporate arena.

  12. .
    Neil, great post! Let’s have more about the root issue of the scam:

    Only bona fide creditors have creditors’ rights.

    I agree that the debt predation industry is based on fraud, on lawyers posing as counsel and usurping rights they do not have.

    The fact is that BORROWERS’ rights are violated!

    Proof: Real world Hearing in a Florida Circuit Court on 4/6/11:

    DEFENDANT, asserting bona fide BORROWERS’ RIGHTS: “Where is the Plaintiff”?

    JUDGE: (helping the impostors out of a tough corner): “These gentlemen are representing the Plaintiff”

    DEFENDANT: “hmm.. but before we proceed, we demand proof that these “gentlemen” have authority to represent Plaintiff”

    JUDGE: (giving testimony for Plaintiff) “They filed a notice of appearance”

    IMPOSTOR: (confirming testimony by the “impartial” judge): “Yes, your honor”

    JUDGE: (making a legal determination): “That’s all that is required by the rules of judicial administration”

    JUDGE: (giving further testimony for plaintiff and for impostor: “The gentleman filed the complaint on behalf of Bogus Bank which is sufficient for notice of appearance and the rules of Jud. Admin.”

    Abuse of discretion, violation of judicial canon(s) or both?
    Circus court or circuit court?

    YOU are the judge!

    Can we keep the impostor issue open please?
    .

  13. But your opinion differs in one key way: As Neil has pointed out, the stated value of the collateral is by the LENDER not the BORROWER. And the LENDER wants to take the collateral back (even though he has already collected payment in full via insurance) and gain ADDITIONAL income by selling it in a foreclosure sale-rather than doing what would make sense if the lender truly DID want to “keep people in their homes” which is to renegotiate the debt to a level that is supported by the collateral. It’s because the LENDER is making money in ways he is not disclosing… And THAT is NOT on the STUPID PIECE OF PAPER and the borrower did NOT SIGN IT.

  14. yes, cubed2k rocks, lol. especially with all the caps “screaming” and foul language…

    he and i agree on one thing though – “contract law at its basic. I gave you money, you promised to pay back plus interest, the stupid property is collateral, I have stupid piece of paper saying so, so pay up or lose the collateral” there’s enough valid fodder for complaints and lawsuits out there without the tax protestor mentality of just quitting paying for no real reason

  15. cubed2K,

    You rock!

  16. I always admire the way you present your blog site posts.They are always so informative and neatly placed with the simplest of words used.Thanks a lot for sharing.

  17. i asked that questions when my case was removed to federal court about the lawyers who represented all the defendants in one of my case. the judge said their representations are enough proof that they were or else their gambling with their license. the federal judge remanded back my case to the court which is still pending. my understanding is , if the lawyers said they are representing the defendants then that is a enough evidence, if i found out they are not actually the lawyers of the defendants then their license could be compromise.

  18. Manipulation at it’s best. Look at number 2 or 3 = banks.

    ma·nip·u·la·tion   
    [muh-nip-yuh-ley-shuhn] Show IPA
    –noun
    1.
    the act of manipulating.
    2.
    the state or fact of being manipulated.
    3.
    skillful or artful management.
    Use manipulation in a Sentence
    Origin:
    1720–30; < French, equivalent to manipule handful (of grains, etc.; see maniple) + -ation -ation
    Dictionary.com Unabridged
    Based on the Random House Dictionary, © Random House, Inc. 2011.
    Cite This Source | Link To manipulation

    Explore the Visual Thesaurus »
    Related Words for : manipulation
    use, handling
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    World English Dictionary
    manipulate (məˈnɪpjʊˌleɪt)

    — vb
    1. ( tr ) to handle or use, esp with some skill, in a process or action: to manipulate a pair of scissors
    2. to negotiate, control, or influence (something or someone) cleverly, skilfully, or deviously
    3. to falsify (a bill, accounts, etc) for one's own advantage
    4. (in physiotherapy) to examine or treat manually, as in loosening a joint

  19. Well, yes, that’s putting it another way, but I have to agree…

    {{{smile}}}

    Tell us what you REALLY mean cubed2K. I’ll probably agree with you.

  20. AND WITH MY STUPID SIGNATURE ON IT. STUPID PIECE OF FUCKING PIECE OF PAPER. JESUS CHRIST ALREADY, WHAT IS WRONG WITH JUDGES, CONGRESS, AMERICA. FUUUUCK.

  21. tnharry,

    SCREW YOUR FUCKINg “standard practice”, WHAT IS THE FUCKING LAW. GOD DAMN mortgages are supposed to be FUCKING RECORDED TO SHOW GOD DAMN OWNERSHIP. WHAT IS ALL THIS FUCKING AROUND>

    god damn stupid contract law at its basic. I gave you money, you promised to pay back plus interest, the stupid property is collateral, I have stupid piece of paper saying so, so pay up or lose the collateral. JESUS CHRIST ALREADY – where’s the god damn piece of paper. Fucking Assholes.

  22. @submitted by Charles Cox

    ” am one to jack with those guys as much as possible and as such, I didn’t want to serve the Adversary Complaint until the requisite 14 days after the summons was issued”

    I try to do my best to objectively look at this material –not adversarial—more maybe like a judge might–i try to think that way given my lack of practice in these forums —but iv been listening to judges giving ethics and practice lectures for about 2 hours every other year since 1977.

    The term they used was “cowboy ethics” big city TV stuff—–the courts, staff included, hate it. In fact it eats up your energy from looking at the wide and deep range of what has happened and make a record—-it also generates more legal fees for opposing counsel-lots more fees. Remember it is their business to respond to you suffering your actions all the way to the bank at $150-500 /hr depending on how dangerous your facts are.

    They just keep on grinding -objective is to present your facts –all of them , reserve your rights, judges are public employees –not paid fortunes like opposing counsel. make it easy for the judge so he/she knows exactly what stack you belong in until mediators are appointed—or special magistrates to apply independent reviews —and that is going to happen if we all are lucky

    you dont want a nasty record behind you–you want to be businesslike–be heard–call me “Middle of the Road”

  23. So, are we talking insurance FRAUD, somewhere in there??? Where is the FBI? Oh, wait, they’re “working on it”…

  24. Love it — said this awhile ago.

    Representing who?? Insurance companies — OH—and these guys have limits — and are relentless.

    So — you are negotiating for a valid mod — with an insurance company?? You – betcha.

    Same as if you slipped on a banana peel in front of store — insurance co. will fight your claim as if there is no tomorrow.

    Insurance. Insurance. Insurance. Over and Over.

    Debt buyer “investors” — insurance insurance –over and over. Oh yeah — then there is “reinsurance”. But, collection rights always remain. And, where are these “investors” hiding??

  25. tnharry
    Thx for reply. Not surprised by it, surprised it’s being allowed to happen. It’s not about the trustee being hired by the lender (although that has it’s own obvious connotations) it’s about the borrower in non-judicial foreclosure states having NOBODY checking their foreclosure action for errors or fraud UNLESS the borrower brings a lawsuit (and this is out of reach for the great majority).

    If the advocate of the lender IS the trustee… (and it usually IS in Washington State) I think you can see why everyone is so dumbfounded by the obvious conclusion. An attorney who represents client has a LEGAL DUTY OF ADVOCACY to that client. It is therefore IMPOSSIBLE for him to serve as both (and unethical).

    My “trustee” has never actually surfaced, Only the lender’s advocate who also happens to be the TRUSTEE’s advocate as well.

  26. Social – it’s pretty standard practice for the substitute or successor trustee to be an atty hired by the foreclosing entity. Not sure why you’re so surprised by that aspect of it.

  27. WORD!

  28. Gee, what a surprise—A TRUE PIG AT THE TOP!!!

    http://gothamist.com/2011/05/16/imf_head_denied_bail_lawyers_sugges.php#photo-1

  29. GREAT POST.

    The complete CLUSTER of violations of the Deed of Trust Acts (or equivalent) AND Codes of Ethics violations currently going on with these “STRAW TRUSTEES” I like to call them is APPALLING in 27 states, as Jan van Eck has pointed out on numerous blog posts.

    I have been writing specifically about my own case extensively and naming names (they have already threatened to sue me) and I have a lawsuit pending for JUST THESE PROBLEMS. My state’s Attorney General is involved though, and I fully expect something to come of it.

    I JUST posted an entry about this very thing, which is very relevant. MOST states are non-judicial.. which often means, the servicers can (and do) put down ANYTHING THEY WANT on the amounts due and for the chain of title and proof of standing declarations (they don’t even have to show docs unless SUED!!) and are taking homes hand over fist, and billing OUTRAGEOUSLY inflated fees to the investor/borrower’s home at auction.

    ***Remember, these guys get paid FIRST!***

    IT’S A HUGE SHAM ad needs to be stopped NOW.

    In my state, the Trustee and the Lender/Servicer’s Law firm is AT THE SAME ADDRESS!!! My GOD.

    I am very much taking this one to the mattresses on this, and it’s costing me a LOT, but I am beyond coherent thought.

    Foreclosure should not be able to be initiated, facilitated, perpetuated or adjudicated by ANY entity who PROFITS from it. Period

    I’m at socialapocalypse.com

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