WRIGHT DECISION: CA FED CT ALLOWS CLAIMS FOR Failure to Contact, Wrongful Foreclosure, Quiet Title, Unjust Enrichment, Declaratory and Injunctive Relief

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A LESSON IN PLEADING

 

 

Javaheri35Order-1

Editor’s Comment: The lesson in this decision is that a well-plead complaint will get over the goal line. A badly worded complaint, after a couple tries may be dismissed with prejudice even if you could have drafted a better claim. The Court would have allowed a claim for fraud if Plaintiff (homeowner) had been more specific as to who said what, where, when and how it resulted in damage.

JPM ACQUISITION OF WAMU DOES NOT TRANSFER THE MORTGAGE, NOTE OR OBLIGATION

The other thing in this decision worthy of comment is that if you plead properly, you prevent JPM from saying they own the loan just by virtue of their WAMU acquisition. Drilling down in discovery you will discover that they did not acquire the loans, that they paid a fraction of of the total assets now claimed, and that the idea that they could sell the loans into pool AND still claim ownership of the obligation is just plain stupid and unacceptable.

I would add that the allegation by them (and well written by you in your complaint for Clients) that the loans were sold into the secondary market for securitization and sale to investors (a) defeats the usual allegation that WAMU loans are not securitized and (b) that discovery is required as to the money trail which will show that the transfers were not accompanied by payment. Nor were they accompanied by documentation and delivery of documents as required by the REMIC statute and the PSA.

The fact that the money trail will show that the loan was treated as though it was securitized shows that the obligation left the table and went to Wall Street. But the security instrument remained on the title registry in the name of WAMU. The homeowner was on the right track here in pleading that the note did not properly express a  meeting of the minds but should have had more specificity, which means that you need more knowledge about securitization — or you need to get a COMBO report and attach it as part of your position, summarizing the key points in your complaint.

Following the money trail will probably lead to the conclusion that the loan was not in default as to the creditor who was still getting paid despite the homeowner’s cessation of payments. It may also lead to the conclusion that the obligation was reduced or eliminated by bailout, insurance or other credit enhancements. For that you need to drill down to the loan level accounting report that our team produces or get it on your own.

 

37 Responses

  1. MUST READ for California:
    PAY ATTENTION TO DISSENTING OPINION

    Quiet Title Ruling Filed 2/14/13 Maconick v. Chase Home Finance

    http://www.courts.ca.gov/opinions/nonpub/B239093.PDF

  2. I couldn’t agree more with E. Tolle’s comment:

    “I’ve said it before, and I’ll say it again, all of these players need to be fitted for matching bracelets and shown new living quarters in rooms with toilets for furniture and bars blocking the view. And a lost key to boot.”

    Only when these criminals are prosecuted and doing time will it truly be safe to become a homeowner again. Until then, why bother? At any moment your lender might decide to steal your home and ruin your credit. Anyone and everyone’s home is up for grabs… even those homes that are not in default, and even those homes that are paid in full. This a time one is considered lucky NOT to be a homeowner.

  3. Carie,

    “By the way, if Chase “took over” WaMu, don’t they have to show “assignment” for a HELOC from WaMu to Chase? Is that supposed to be recorded?”

    They don’t own it if it was securitized and any assignment would be bogus.

    Here’s what the judge said regarding the securitization of the loan:

    “Furthermore, in the face of these specific factual allegations, JPMorgan’s assertion that the P&A Agreement suffices to establish their ownership of the Note is no longer viable. Indeed, the P&A Agreement does not specifically identify Plaintiff’s Note. (See Dkt. No. 10, Exh. 2.) The Court finds that Plaintiff has now sufficiently alleged that JPMorgan did not own his Note and therefore did not have the right to foreclose. Accordingly, the Court DENIES Defendant’s Motion to Dismiss with respect to Plaintiff’s second claim for wrongful foreclosure and fifth claim to quiet title. “

  4. Chase is going down…

    http://www.huffingtonpost.com/2011/06/25/madoff-jpmorgan-lawsuit-irving-picard_n_884540.html

    By the way, if Chase “took over” WaMu, don’t they have to show “assignment” for a HELOC from WaMu to Chase? Is that supposed to be recorded?

  5. Thanks, Mr.Gault…I asked re. that case because I was wondering if “rescission” had anything to do with a previous commenter who said a lawyer in Huston had “threatened their Securities licenses and got them to pony up EVERY single dime the homeowner had paid in to the ‘servicing company’ from the date the securitized audit showed the loan had been assigned to a REMIC Trust and according to the PSA.”

  6. Well, heck. I swear I edited out the business about the 30k, but what made me so mad about it was that the attorney didn’t know jack and the case was dismissed quickly, the 30k to the homeowner later.

  7. I really think it’s important that people understand rescission, at least some of the mechanics, the ones I’m a little familiara with. So, I’d like to add one more.
    Say you got a loan for 100k, but you paid 5k to get it. (closing costs, points, whatever). You then made 6k in payments before you rescinded under TILA.
    The lender must give you back 5k + 6k = 11k before you are obligated to give back the 100k you borrowed. If these things happened, you each would be even, right? Where you were before you got the loan and before they gave it to you.
    Whatever both parties had in their wallets before the loan was made is now back in the wallets.

    But, as far as I know, borrowers usually ask for damages or like that for the violations of TILA.
    Because I have never seen a successful case that I can think of, I don’t know how the rest of it works. But I will say this. One of the reasons I know what I know is that I saw an attorney take 30k from a homeowner to prosecute a tila case. Rescission is a consequence to the lender and a remedy for the borrower for TILA violations, but it’s not the entire remedy for the homeowner.

  8. @carie – Wachovia is calling what they want to do the “conditional rescission”, I guess, and saying they would release the lien concurrently with the borrow paying off the loan. Like, I said , Wach wanted to skip litigation and not honor its own obligations. Once the lender performs pursuant to the appl rules of rescission, then the borrower has to tender “the property” it received out of the deal, which was the loan. That “property”is not the house – it’s the money the borrowers received, the loan proceeds.
    I guess to do a rescission properly, the lender must first give back all the dough paid in, maybe release the lien, then the borrower has to pay off the loan. But in this case, as in all I’ve ever seen, that is not all the borrower wants, He wants damages, etc. for the Tila violations and like that.
    There may be a right of offset which would preclude the borrower from having to pay off the loan even if the lender gave back everything, incuding pts and closing costs, the borrower paid for the loan. I dont know about that part of it, having never seen a successful case. Most banksters pull a Wachovia or more likely even, get it dismissed for lack of tender by the borrower, which is cr– since they have to act first.
    It’d be my thought the ‘lender’ aint ever going to give those funds back. They’d probably cut a legitimate deal first., like better terms, knock off some principal, in other words actually negotiate.

  9. @carie,
    On that FL rescission case: best I can tell is the homeowner filed a rescission case. Wachovia didn’t want to litigate so tried to say, as do most of them, that in order to rescind, the h.o. had to ‘tender’ the balance owing on the loan, Wachovia would then release the lien. Gee, isnt that generous? Nice try, Wachovia. This is one of the few courts which have actually followed the rules. Before the h.o. has to “tender” the balance, the lender has to fork over every dime ever paid on the loan.
    Wachovia wanted to skip everthing, its own obligatons which come first, and just make the h.o. pay off the loan. The court said no, not happening.
    He said we’re following the rules.
    It looks like the h.o. rescinded, Wachovia did not
    fork over the dough the h.o. had paid so I think the court said so now we’re going to litigate. I’ll read it again for anything else. This is only the second time I have seen a court so rule in a rescission case.

  10. Right on, E.Tolle…by the way, are you “the” E.Tolle?

  11. http://mariokenny.files.wordpress.com/2011/06/recission-case-in-tampa.pdf

    Can anyone here describe this case in simple layman’s terms? Thanks.

  12. My 1st was originated by Greenpoint Services in 04. Greenpoint (Capital One?) disappeared in 07. It then went to Countrywide and now with B of A who is happily taking the money and charging 6 bucks per month for “the convenience” of paying on line. While the loan is presently current, I can see the day coming pretty soon when the payment is going to be very difficult to make. If my loan was securitized what does that mean for me?

  13. Wow. I am truely impressed. Thax for the help. I believe there is good advice here. It sounds like the voice of experience to me…and I AM a fighter. Thank you so much.

  14. spankieblue, welcome to the servicer merry-go-round. reach way out and try and grab the brass ring….oh….you just missed it. Keep trying.

    And then just keep documenting their fraud as they lead you down the path to foreclosure. I’d make a million bucks if I could sell this backstory to unsuspecting folks who actually believe that: 1. ….the servicer is actually working in your best interest to achieve a workable modification that will keep you and your deserving family in your sweet little home, and 2…..that the servicer even has the capability to do a modification in the first place.

    These attorneys who don’t understand securitization will gladly take the homeowner’s money in a lackluster attempt at defense, only to end up suggesting a modification, believing this to be the only way for the homeowner to go. Little do any of them know that they are participating in a fraudulent scheme that attempts at correcting or at least covering up the criminal behaviour of slews of dastardly jerks in finance. I’ve said it before, and I’ll say it again, all of these players need to be fitted for matching bracelets and shown new living quarters in rooms with toilets for furniture and bars blocking the view. And a lost key to boot.

  15. Yeah, spankieblue, I’ve got an idea. Call your “point of contact”, fax your point of contact, and plan on meeting their tails in court. Even tho you are the homeowner, file a ‘request for notice’ with your recorder, and get on with your life. If they try anything sneaky with f/c docs, they darn well better notify you as a matter of law and also pursuant to your recorded request for notice. Have your mom and your brother file a request for notice, also. Hell, ask your co-workers. Don’t have any? Ask your neighbors. The county recorder needs the revenue. Don’t know if they’ll get noticed, but prob couldnt’ hurt. Get a paralegal to type one up for you.
    There are enough pleadings filed online at this site and that so you should be able to fashion some kind of pleading in state court if they try to f/c. Or get a paralegal to help you if no funds for attorney. If you have done anything by way of consideration for modification, which I think you have by sending in the docs requested and I don’t now what else, you should have some grounds to say wait your honor, I’ve been acting in good faith here. Document everything.
    I’m not an attorney and this is not legal advice! People who can’t pay or find good representation have just got to start somewhere. Stop being held hostage by these yeahoo -anti-modification loan servicers. It might be a mistake to try to act smarter than you are before a judge, so don’t. Many f/c attorneys who represent the homeowner have sample pleadings at their web sites. Scribd is probably full of them. Print some and take them to your local knowledgeable paralegal. That or get used to renting. I think it’s that simple.

  16. I have been posting in these forums for a bit. I am trying to get a hamp loan with wells fargo. After confirming that all paper work had been turned in a week ago and no more was needed. I get mail saying they need more documents and are not being specific. I can’t quess which documents they need now. They have lost whole sections…asked for documents that are not in the orignal hamp requests. I have supplied it all. My single point of contact is failing the new point of contact rules. So, I am pressing for the paper work they say they dont have. I am simply going to fax all the info they have asked for…updated….everyday untill the faxes are coming out of their ears. It wont cost me anything. any suggestions please email me or comment here. ty spankieblue@live.com

  17. Read Transcrip of a Foreclosure …Trial

    mattweidnerlaw.com/blog

    Our courtrooms are public spaces. Historically, courtrooms are among the most sacred of public grounds and our founding fathers, and generations of lawyers and statesmen since our country’s founding took great risk and fought long odds to protect the foundation and legacy that in this country trials occur in the full view of the public glare.

    Our country has been lost, in large measure by my estimation, because the people took too much for granted. In the good times we, the public, the stewards of the Constitution, the keepers of our own liberty turned our backs on staying involved, remaining vigilant and holding people, officials and the entire system accountable.

    When We The People abandoned the public square and conceded the sacred territory of our statehouses, our courtrooms all of that territory, all of those spaces were consumed by partisan activists, corporations and officials, both elected and appointed who used our government our republic, our freedoms to fulfill their own self interest. In prior epochs of our nation’s history our legislators, our elected and appointed leaders and the leaders of business respected a common interest in protecting liberty and the rule of law and conforming their own self interest to that of the body politic. The memories of that age fade like the fuzzy picture on a small black and white television, a clothes hanger rabbit ear antenna perched and unstable on top.

    The statesmen are gone and the patriots and protectors of our most sacred values must choose between daily survival and the consequences of daring to remind others that our liberty and freedom were once symbolized by a torch, a flame held high and proud and brightly, but that flame is dim. And as a commentator noted…..

    “Given the current state of things, I’m sure there are a lot of people deliberately deciding to adopt a low profile, politically or socially. A lot of this has to do not so much with politics but what your neighbors or your coworkers will say about you, right? If you tell them something that is actually happening in the world, you will be labeled a conspiracy theorist; they’ll look at you as if you’re crazy. But what about the activists? At a certain stage, the great mass of people will look around for leadership figures. When the economic crisis comes, they’re going to want someone to tell them how to get out of it. They’re not going to know the answers themselves. The question is, will there be activists, leadership figures, proposing the right solutions – and how soon will they come along?”

    And now the transcript:

    KRAMER-1
    http://www.scribd.com/my_document_collections/3011910

  18. THERE IS A CAMPAIGN ON TO RESHAPE AMERICA’S COURTS. $45MILLION AND COUNTING BEING SPENT. SEE REPORT HERE

    http://www.scribd.com/doc/58657917/IS-JUSTICE-IN-THE-USA-BEING-HIJACKED-A-REPORT-VIA-SOROS

  19. “The other thing in this decision worthy of comment is that if you plead properly, you prevent JPM from saying they own the loan just by virtue of their WAMU acquisition.”

    Does that go for my Chase HELOC–formerly WaMu—they are threatening foreclosure on me because I had to default on the HELOC-the “loan” numbers aren’t even the same–underwater house–haven’t filed Chap 7 yet—what should I say in a letter to get them to back off—???

  20. Joanne thank you for the compliment. It is the UD attorneys that deal with similar cases. They know how to get straight to the point. What works. and what doesnt work.

  21. Here is the second amended complaint:

    http://www.scribd.com/doc/58645741/Javaheri-v-JP-Morgan-Chase-Post-Foreclosure-Case-Judge-Wright

    The ruling is at scribd, also.

  22. If the ‘trust’ had purchased the ‘mortgage loan’ they would have updated themselves on the lien, deed, homeowners, etc.

  23. Yes, the Note recorded with County Recorder/Clerk is without rubber stamp. They don’t endorse to anyone unless special servicer picks up in foreclosure they rubber stamp endorsements.

    What about bankruptcy same thing?

  24. The A Man

    Good suggestion. In my town there is legal aid for tenants but not for homeowners in or out of foreclosure. Don’t get that. Maybe we could say we are tenant fake debt slaves to a feudal landlord fraud creditor getting away with the biggest land grab in history.

  25. i wonder if the purchase of countrywide by Bank of America falls withing the same sham claiming ownership for those properties as Wells fargo is doing with Wamu properties, can anyone tell me ?

  26. We need a simple list of the cases of the last several months and those that break daily with a one line description that spells out the significance or with selected quotes that can get those asleep at the switch to wake up and look deeper including the majority of attorneys and law firms that still do not have a clue. Homeowners trying to have an informed conversation with anyone get nowhere. The widespread ignorance is staggering. Even those attorneys who are supposedly defending foreclosures just recommend modification intervention and other. All of the powers that be – not just attorneys are stuck on “mere paperwork errors that will be fixed”, “owes someone”, “no free house”.

  27. REgarding getting Attorneys onboard. I would look at getting in touch with Attorneys that represent Tenants in Unlawful Detainer cases. or even Attorneys that represent Landlords. Find out who the tough ones are.

  28. Very instructive. Yesterday a motion to dismiss my adversary was granted in part and denied in part, which was expected. So I have to amend and allege sufficient facts to make the complaint fly.

    Read the civil minutes over and over. Its better than law school and easy to understand if you have with a minimal legal foundation.

    It would be interesting to read the plaintiff’s original and amended pleadings to see how he made the corrections and converted conclusory allegations to factual ones.

  29. Does anyone here know how a lawyer could “threaten” the securities licenses of these people—and get them to “pony up” all money paid to servicer from the time the securitized audit showed the loan had been assigned to a REMIC Trust and according to the PSA. This happening with some lawyers—why not here???
    If any lawyer in the So Cal area knows how to do that, please contact me: cariemac9@gmail.com

  30. this case is:
    UNITED STATES DISTRICT COURT
    CENTRAL DISTRICT OF CALIFORNIA
    Javaheri v. JPMorgan Chase Bank, N.A., et al.
    Case 2:10-cv-08185-ODW -FFM June 2, 2011

    available at:
    http://www.chasechase.org/doxcc/Javaheri35Order.pdf

  31. I have a foreclosure and the plaintiff is Bank of ny mellon as trustee for RAMP 2005RS9 has anyone heard this???

  32. You are so right Neil, this case was recited better than many cases I had read, it could have been even better if as you said the Plaintiff had more details on certain issues. the more cases like this one come out the better we learn from them as to what to cover and what not to cover. Things are turning around, and yes we need to get to the nitty gritty about the specific loans. Neil, thank you for being there for the homeowners and for pointing things out that were not obvious enough for many of us, we appreciate you and your comments more than you know, thank you!

  33. I would guest this defense should work against Countrywide/Bac loan.

  34. Makes sense people should use this defense if you have a Indymac loan with Onewest claim they purchase everything. Or any other bank that the FDIC took over and sold the “portfolio” to another bank.

    Once used properly no bank will be able to have subject matter jurisdiction and take control of the res of there own profit gain.

  35. Very interesting commentary! Has anyone else noted that the parent of, or the originating lender has signed off or stamped as a “borrower” on your Deed of Trust or Note?

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