DISCOVERY: BKR JUDGE FINDS CITI EVIDENCE “INCONSISTENT” AND ORDERS REAL ANSWERS

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“Regardless of decisions on standing and whether or not “real party in interest” is jurisdictional, a favorable decision to the “bank” (pretender) on those issues no longer means that they can bootstrap their position into making a credit bid at an auction or get adequate protection payments in bankruptcy or get supercedeas bond. Those things require proof that the loss is real and neither imaginery nor in the hands of someone else. And the presumption that the loss exists because of the presence of a note no longer abides. That presumption is coming under increasing attack simply because there is no truth to the pretender’s position.” — Neil Garfield

6.11.2011 Kansas BK Citi MT Compel JMK_10-41685-45

EDITOR’S NOTE: This case is important. The question is adequate protection payments in bankruptcy, which is now going against Citi because they are not going to be able to prove that they have an actual monetary loss that needs protection. The same holds true for supercedeas bond on appeal, when the same Citi or other “bank” states that they need bond or payments into the court registry to protect their “loss,” which we now know does not exist. They don’t have one dime in the deal. So what is there to protect? This Court says outright that the answer is nothing.

There is a distinction to be made that is coming to the foreground now: on the one there are technical arguments that might allow entities to initiate foreclosure actions; on the other hand there is the money trail, and the courts are getting increasingly interested in the money because they know that “follow the money” leads closer to the truth than “follow the documents.”.

Regardless of decisions on standing and whether or not “real party in interest” is jurisdictional, a favorable decision to the “bank” (pretender) on those issues no longer means that they can bootstrap their position into making a credit bid at an auction or get adequate protection payments in bankruptcy or get supercedeas bond. Those things require proof that the loss is real and neither imaginary nor in the hands of someone else. And the presumption that the loss exists because of the presence of a note no longer abides. That presumption is coming under increasing attack simply because there is no truth to the pretender’s position.

At the seminar on Saturday, we’ll talk more about this and what it means for strategy. It just might be that the pretenders are paving the way for a successful outcome for the homeowner. I think they are painting themselves into a corner. By arguing successfully for “standing” and not joining the real party in interest, there is nobody to submit a credit bid at auction, there is no loss on the table for the Judge to protect, and there is no way out of the auction sale except to pay actual cash instead of submitting a credit bid, which means, as pointed out in my private letter to the members that there are strategies available at auction which might be overlooked by most litigants and attorneys.

See go-to-the-auction-and-submit-a-bid-before-you-attack-the-foreclosure-sale-members-only-newsletter

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF KANSAS
IN RE: DAVID ANTONIO CAMPOVERDE.    Case No. 10-41685
Chapter 7
Debtor.
ORDER GRANTING TRUSTEE’S MOTION TO SET MOTION TO COMPEL FOR EXPEDITED HEARING AND TO REQUIRE RESPONSE FROM CITIMORTGAGE

Quotes from the Court’s decision:

“The Motion does not indicate in what capacity CitiMortgage “held” those instruments. For that reason, this Court originally assumed CitiMortgage was claiming to be the beneficial owner of the instruments since no other capacity was stated.”

“CitiMortgage’s motion also states that a copy of the note is attached, but is silent on whether it is an authentic copy of the original in existence on the date of the filing of the motion. The Trustee suggests that in light of what she has found on a public website about this loan, it cannot be true that it is an authentic copy because the note contains no endorsements.”

“CitiMortgage also claimed in its Motion that “[b]y reason of the aforesaid facts, Movant lacks adequate protection of its interest in said property.”4    In so stating, again, the Court assumed that CitiMortgage held the beneficial interest in the note, because if it did not, it is unclear why it (as opposed to its principal if it is serving as an agent) would be deserving of adequate protection.”

“The contents of this Motion, however, are inconsistent with information that the Trustee has been required (in order to do her job) to ferret from a public website suggesting that CitiMortgage is, at best, the servicer of the documents in this case. Because of that perceived inconsistency, for which counsel for CitiMortgage had no explanation at the hearing, the Court ordered CitiMortgage to provide additional information to the Trustee within 30 days of a lengthy hearing conducted on February 9, 2011.”

Interestingly, CitiMortgage never alleges that any of this $158,615.90 is owed to it. It also does not plead (if it is really merely the servicer, as the Fannie Mae documents suggest) that the true beneficial owner of the note has authorized it to file this action on its behalf.
4Id. at ¶ 9 (emphasis added).

17 Responses

  1. My judge just granted a servicer relief from stay based on possession of a bearer note under the UCC. He didn’t say they were the real party, just that they were entitled to enforce the bearer note . I don’t see how this squares w/ rule 17 that says actions must be prosecuted by the real party. Does anyone?

    In June of 2010 MERS made a change to their m.o. of only showing servicers.
    Someone sent me this info last week.
    MERS issued id numbers to ‘investors’ and now shows more than just the servicers. So I looked up my min number – again – and was surprised to see as investor “U.S. Bank as Trustee”. No trustee is an investor, but still this indicates U S Bank is the trustee of some trust which if anyone must own the note. The svcr is Aurora Loan who claimed to own the bearer note. I guess they don’t.

    I don’t see how I could have known this any earlier, nor do I know the date US BK was entered in the MERS system. But it was after my case went into submission. I’m not obligated to look at MERS webiste every day, right? Anyway, isn’t this “newly discovered evidence”? Does anyone think the judge will give a hoot or will he just rely on the UCC and still say they have a bearer note so tough?
    Isn’t it the trustee who is the one who should be filing a claim and getting relief from stay? I just don’t know if I should try again, but I suppose I better hurry.
    Thanks

  2. “[T]his Court originally assumed CitiMortgage was claiming to be the beneficial owner.”
    The court ASSUMED? What kind of BS is that? And then the judge wrote “authentic copy”? That is an oxymoron. A copy may be accurate or inaccurate, but there is nothing “authentic” about a copy.

    This just goes to show that even in friendly courts we have s@$%load of work to do…

  3. E Tolle

    It’s almost too much to bear.

    All this anger, mine and so many others, and no strategies on the horizon to fix any of this. Much of the time I feel numb, hopeless, until I read a posting such as your latest one, and then the rage resurfaces. For awhile. A pernicious cycle.

  4. I am having trouble finding the Washington State statute for the Power of Sale that requires the existence of a creditor in the document. Help to find this statute by anyone would be very much appreciated.

  5. Sign the Stop Foreclosures NOW Petition an pass it on!
    http://www.ipetitions.com/petition/smokeandmers911/signatures

  6. I’m not sure our so-called representatives in D.C. could stoop any lower without spelunking gear. Every stinking one of them needs to be sent packing. Too bad we’re too civilized for tar and feather parties these days. Not only are they being paid off by lobbyists, they’re trading the ill-gotten gains on inside information….and it’s legal. Not for us, just for them.

    In the 2011 study “Abnormal Returns From the Common Stock Investments of Members of the U.S. House of Representatives,” four university professors found that a portfolio that mimics the purchases of House Members beats the market by 55 basis points per month, or approximately 6 percent annually. That study looked at 16,000 common stock transactions made by approximately 300 House delegates from 1985 to 2001.

    “Overall we find that the common stocks purchased by Members of the U.S. House of Representatives earn statistically significant positive abnormal returns. Our results indicate that Representatives, like Senators, also trade with a substantial information advantage,” wrote the study’s authors.

    And it’s widespread and accepted behaviour.

    http://www.cnbc.com/id/43471561?par=ft

  7. http://www.huffingtonpost.com/2011/06/21/jpmorgan-to-settle-for-15-million_n_881388.html

    “Tuesday’s announcement came less than a year after Goldman Sachs Group Inc agreed to pay $550 million to settle SEC charges that it did not tell investors in the Abacus CDO that hedge fund investor John Paulson helped choose the underlying securities and bet against them.

    According to the SEC, JPMorgan in 2007 structured a collateralized debt obligation, Squared CDO 2007-1, mainly with credit default swaps tied to other CDO securities whose value was tied to the nation’s housing market.

    It said the Squared CDO’s marketing materials said the underlying investments were chosen by a GSC affiliate. But in fact, Magnetar played a significant role and would benefit from defaults because of a nearly $600 million short position, it said.

    In a conference call, SEC enforcement chief Robert Khuzami said he did not anticipate the agency bringing charges against any JPMorgan executives in connection with the CDO case.”

    NO CHARGES AGAINST EXECS—JUST KEEP ASSAULTING THE HOMEOWNERS THAT YOU RAPED—BUSINESS AS USUAL—

  8. JUDGES ARE YOU REALLY THAT STUPID OR ARE ALL OF YOU PAID OFF???
    A small child could understand how the FRAUD on Wall Street connects DIRECTLY to the FRAUD with the HOUSES, IE.— fake titles, fake mortgages, recordings, robosigners, fake assignments, MERS, ETC., ETC., ETC.!!!
    The investors get paid, and the HOMEOWNERS GET ASSAULTED—over and over and over…Where do I protest? Whom do I yell at???

  9. HOMEOWNERS GET LEFT IN THE DUST BUT THE INVESTORS GET PAID BACK!
    JPMORGAN TO PAY BACK BILKED INVESTORS $126 MILLION AND SOME MORE MONEY GOES INTO OUR US TREASURY. JUNE 21 2011

    http://www.scribd.com/doc/58420661/JPMORGAN-TO-PAY-126-MILLION-BACK-TO-BILKED-INVESTORS-JUNE-21-2011-REST-GOES-TO-US-TREASURY

  10. Timely decision for me. On June 16th my Bk judge in Ca ordered adequate protection out of a motion for relief from stay wherein he found color of title primarily because of an assignment from MERS and declaration by “bankruptcy specialists”. This was after 3 continued hearings to inquire into Citimortgage standing. On the note there is an alleged endorsement from originator but Citi admits that they do not own the note but claims UCC 3 holder of note with power to enforce. Another copy of note turned up later by court order displaying another endorsement which indicates it was turned over to another party like Freddie Mac (who claims to own the note), or another trust. Citi explained their curious endorsement as an act to convert the note to a bearer instrument (and thus strengthen their Bk claims to be the creditor).

    With this chain of title mess, the judge still decided for the pretender with no evidence. So I must appeal within 8-9 days, or motion to reconsider.

    Any comments or suggestions, appropriate pleadings?

    davidwood100@yahoo.com

  11. Well here I go on the hamp hump. Last Thursday we supposedly got all of our papers in and accounted for. I cant wait to see what the response will be. The person handling our account works 2nd shift 4 days a week which means that when she starts work at 2 pm PST it is already 5 pm my time which is EST. So all business here are starting to close.. That also means she really only has 3 days a week she can work on my case. She works from Tuesday to Friday. Well Fargo has done this on purpose just to help delay things. Any help contact me at spankieblue@live.com I will keep you all posted with my progress or lack there of.

  12. Thanks for that post re. the homeless beauty queen, Ann…she is very courageous.
    What happened to her is the unfathomable legacy of the Wall Street/Banksters/Government’s GREED.

    A sheriff with trash bags…wonderful…and our government and judicial system CONTINUES to ENCOURAGE THE OBFUSCATION OF TRUTH.

  13. Miss Colorado / Miss USA Contestant- Listen to Her Traumatic Foreclosure Story
    http://mattweidnerlaw.com/blog/2011/06/miss-coloradomiss-usa-contestant-listen-to-her-traumatic-foreclosure-story/

    Medical debt catapults this family into debt and ultimately foreclosure after dad is diagnosed with prostate cancer and mom gets sick and loses her health insurance.

    Just listen to this girl’s story…talk about bootstrapping, talk about courage, talk about standing up….a sad but inspirational story of America.

    20/20 Story

  14. THIS IS THE VEAL FILINGS FOR MOTION FOR STAY OF ORDER PENDING APPEAL IN US BANKRUPTCY COURT. VEAL WON THE APPEAL AND WELLS FARGO HAD NOT STANDING. THESE MIGHT BE HANDY AS A TEMPLATE IN CASE YOU NEED TO FILE SIMILAR.

    http://www.scribd.com/doc/58400734/Motion-for-Stay-of-Order-Pending-Appeal-Us-Bankruptcy-Court-Veal-can-use-as-template

  15. I’ve designed and created a “homeowner warrior” “got mers?” bumper sticker for anyone that’s interested (quantity discounts):

    http://www.zazzle.com/got_m_e_r_s_homeowner_warrior_bumpersticker-128060858974589013

    Also a t-shirt:

    http://www.zazzle.com/homeowner_warrior_got_mers_t_shirt_women_men-235131489799966513

    I can make stickers, buttons, postcards etc., available also, if anyone is interested—let me know! cariemac9@gmail.com

  16. CALL TO ACTION – NEW PROPOSED SENATE BILL TO REGULATE SERVICERS OF MORTGAGES. PLEASE READ AND WHETHER YOU AGREE OR NOT, CONTACT YOUR SENATOR.

    http://www.scribd.com/doc/58396409/CALL-TO-ACTION-BETTER-READ-AND-UNDERSTAND-THIS-NEW-PROPOSED-SENATE-BILL-FOR-THE-REGULATION-OF-MORTGAGE-SERVICING-2011

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