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EDITOR’S NOTE: Every time a Court actually looks at the documents, examines the pleadings and exhibits and asks the most basic questions, they rule in favor of the borrower. It’s not out of bias that they ruled as they did before nor is out of some new bias for borrowers that the latest rulings favor borrowers. It is just application of simple, basic existing law without any need to treat the issues as novel in any way.

The Banks have completed millions of foreclosures side-stepping the issue of whether or not they are in fact the creditor, whether they could submit a credit bid at the auction, whether the money is owed to them, and if they are acting as “agent” whether they will disclose the principal in the transaction. The courts deferred to the banks for too long. Now the Judges are realizing that they have been hoodwinked and that their prior rulings have enabled the worst property title crisis in U.S. history as well as the worst financial scam. The ultimate cost of these errors cannot be calculated in money alone. Ruined lives, divorces and suicides are not just numbers on a page.








This Court has dealt with numerous mortgage-related cases, and in the process of wading through them it has learned that seemingly straightforward transactions -non – judicial foreclosures- are not at all routine. Indeed, all too often they are mystifying, because of the utterly confusing assignments, substitutions, and other transactions (some recorded, some not) conducted by a host of entities. The number and names of the defendants in Plaintiffs’ FAC only hint at what has now been revealed as the tangled story underlying this loan and the other loans involved in many of these cases.


Not only is Gomes distinguishable on it’s facts, the Gomes court actually suggested a cause of action for wrongful foreclosure might survive if “the plaintiff complaint identified a specific factual basis for alleging that the foreclosure was not initiated by the correct party.” Id. (emphasis in original). Here, Plaintiffs have alleged just such a specific factual basis – namely, that RCS was not yet the beneficiary under the DOT when it executed the Substitution of Trustee in favor of Fidelity.


15 Responses

  1. Off subject:
    I am not trying to get a loan “mod” , yet I appear to have done more research on the issue than people here, generally, who ARE trying to get a loan mod. Maybe you will start by readng some “stuff”, becoming informed, if I put it RIGHT HERE.
    From FNMA SVC-2010-04 issued March 3, 2010:

    “Reclassifying Home Affordable Modification Program
    MBS MortgageLoansAnnouncement 09-35,Updates to the Home Affordable Modification Program — MBS Mortgage Loans ,

    revised the Home Affordable Modification Program (HAMP) reclassification and REMOVAL requirements for MBS mortgage loans FROM MBS pools to complete HAMP modifications.

    This Announcement represents a further revision of the reclassification and removal requirements to complete HAMP modifications for mortgage loans that are PART OF an MBS pool that is serviced under the special servicing option or a SHARED-RISK MBS pool for which Fannie Mae markets the acquired property……..

    Servicers are reminded that a mortgage loan that is part of a regular servicing option MBS pool or part of a shared-risk special servicing option MBS pool for which the servicer’s SHARED RISK LIABILITY has not expired must NOT modify the mortgage loan while it remains in the MBS pool.The servicer MUST PURCHASE the mortgage loan from the MBS pool upon completion of the trial period provided the mortgage loan has been in a continuous state of delinquency for at least four consecutive monthly payment due dates (or at least eight consecutive payment due dates in the case of a biweekly mortgage loan) without a full cure of the delinquency during that period.

    Regular servicing option MBS pool mortgage loans and such shared-risk special servicing option MBS pool mortgage loans that have been purchased from an MBS pool for purposes of modification are NOT eligible for re-delivery to Fannie Mae. Performing MBS mortgage loans (and those that do not meet the delinquency criteria described above) are ineligible for repurchase for the purpose of modifying the mortgage loan………….”

    The last sentence is not consistant with other or maybe it was subsequent FNMA bulletins: A loan need not be in default, but must be in imminent danger of default (lost job, santa didn’t make it, whatever is indicative of a homeowner’s likely inability to make future payments)

    Bear in mind that not all loans are GSE’s and didn’t go thru FNMA.

    All these directives which may tell you whether you should qualify for loan modification (which I call a subsidy) are available at FNMA’s website. YOU can remove some of the :”mystifying, utterly confusing”
    actions of your bankster in regard to ‘modification” if you only would.

    Stop getting jerked around by these guys!


  2. So what you’re saying Neil, is their financial stake (pensions) never played any part?

  3. @johngault – that’s pretty much my point. your questions about an agent or a beneficiary foreclosing being improper assumes that someone is paying attention to the rules. in a non-judicial, there is no referee. it’s a complete free for all. in states where a court must confirm the sale, there is a possibility for oversight (albeit after fact), but those usually sail through as defaults

  4. @tnharry – nonjudicial foreclosure laws did not start out as they are now.
    A beneficiary may foreclose? An agent may foreclose? That’s like, as I’ve said, letting Phil Jackson or Koby Bryant referee a Laker’s game.
    Non-jud foreclosure was the result of lobbying by lenders who didn’t want to be bothered with judicial foreclosure and rights of redemption. The trustee
    had a dual fiduciary with the trustor and beneficiary (as I believe he still does).

    Somewhere along the road, while we were sleeping, lobbyists have apparently been at it to where none of the state statutes are recognizable.
    In fact, anyone in the legislative branch who was part of this atrocity should get the same bracelets as the banksters.
    Those rat-b’s were given an inch that they might avoid the time and expense of judicial foreclosure. They and their stinking lobbyists have take more than the proverbial mile. They have massacred the non-judicial rules to the point where it’s pretty much a free-for-all against only the most astute.

  5. and carie, I referred to myself as a “nitwit” as well. that’s the legal disclaimer: “not legal advice, a discussion of nitwits”. Louie just brought that out of me. nothing personal.

    Edge baby, you’re DOIN’ IT! You ARE winning!

  6. Funny how the word “trust” is everywhere with all this stuff, and we feel like we can’t trust any of it…

  7. I know you haven’t–I’m referring to usedkarguy…he likes calling us laypeople nitwits…

  8. and carie, I’ve never called you or anyone else a nitwit.

  9. different trustees. the trustee for the securittization trust is different from the trustee for the deed of trust itself. and the bankruptcy trustee is another guy altogether.

    the trustee appointed substitute (or successor) trustee has virtually nothing to do with the trust you’re referring to when you say the loan never made it into the trust or the trust was closed. this trustee of the deed of trust must be appointed by someone with the authority to do so, and that’s where the psa, trust, and closing date all start to matter

  10. Ok, I have another “nitwit” layperson question for you, tnharry (forgive me if it’s already been answered here before),:

    If the “loan” never made it into a trust—not to mention the trust was “closed” or whatever a long time ago—how can someone be named an SOT, much less have any authority to foreclose in the first place? By saying “I’m the SOT”, doesn’t that imply that there actually IS a trust with a “loan” in there?

  11. definitely something strange on this post

  12. Is it just my computer, or is the comment section waaaaaaaaaaaaay down on the page??

  13. interesting exchange between the counsel and the judge about proving authority to act. the judge clearly wants to take this case an run with it though. the atty did a reasonable job of making his case but fell just short of agreeing with the judge – not having to prove authority to act is EXACTLY the point of non-judicial foreclosure statutes. proving standing and authority to act (to the extent those are separate) is an issue in the courtroom and in judicial sales. for non-judicial, they have no place. who do you think drafted and helped draft the non-judicial statutes in the first place?

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