WEISBAND APPEAL: IS EVIDENCE REQUIRED OR CAN WE JUST TAKE THE BANKS’ WORD FOR IT?

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SEE WEISBAND STATEMENT OF ISSUES ON APPEAL 10-1239

FILED BY RONALD RYAN, ESQ. IN TUCSON, AZ

Debtor informed the Bankruptcy Court (herein, “Court” as the trial court) that it had expert testimony to support Debtor’s challenge to the Motion, and informed the Court that the evidence in the record contained certain indicators that also supported Debtor’s challenge. Primarily Debtor contends that the Loan, Note and Deed of Trust (“DOT”) were intended for Securitization into a Mortgage Backed Security (“MBS”) Trust, and that Appellee was not, either at the time the bankruptcy case was filed, nor at the time the motion for relief from stay was filed: the real Article 3 Holder of the Note; nor the owner of the Loan; nor the party possessed of the DOT rights, including the security interest in the Property. Debtor alleged that the merger agreement was irrelevant. Debtor alleged that the Loan, Note and DOT rights had been sold or otherwise transferred to a completely separate entity, within weeks after the original loan closed, to a completely separate entity from either FHHLC, FTBNA and FHHL.

The Court did not hold a single evidentiary hearing. It did not require a single piece of evidence or testimony to be admitted in a legal proceeding, subject to cross examination and the right to present controverting evidence. The Court did not require that the evidence and the purport of said evidence met even the standard of summary judgment evidence. Debtor was not afforded an opportunity to perform reasonable discovery, despite the fact that Debtor informed the Court that they intended to immediately serve written discovery requests.

  1. Did the Court err in finding that FHHL proved itself to have Constitutional Standing and Real Party in Interest status (“RPI”) (Prudential Standing), without having to present any evidence in an admissible form, over Debtor’s objection?
  2. Even if FHHL had established a prima faci case that it had Constitutional Standing and Prudential Standing, was it a denial of due process, or in contravention of statutory law or the applicable rules of procedure to deny Debtor an evidentiary hearing?
  3. was it error to deny Debtor the right to a reasonable amount of discovery within a reasonable period of time in this case?
  4. What evidence is necessary to prove Constitutional Standing and Prudential Standing in the context of a Motion for Relief from Stay in Bankruptcy Court on residential real estate?

25 Responses

  1. […] WEISBAND APPEAL: IS EVIDENCE REQUIRED OR CAN WE JUST TAKE THE BANKS’ WORD FOR IT? Posted on August 10, 2011 by Neil Garfield […]

  2. This is in fact a lot of work, but: we HAVE to start keeping track of what stories an HSBC or B of A tells over here and there and use it against them in our own litigations. I’m not that computer savvy. Scribd is okay, but cumbersome, and most importantly leaves these pleadings (read bankster stories) scattered. It would be great to have ONE site which keeps track of this bs, and the different stories that gang tells about who is doing what and who MAY do what. So there’s an opportunity for someone with the computer skills to create such a a site. Not a site like this one, just a site where the pleadings can be uploaded in one place. Some posters here seem pretty knowledgeable about computers and have the energy. Just a thought…..

  3. “This is all around HSBC’s role as a trustee in foreclosure cases,” Brazil said. “A trustee in these cases plays a

    very limited

    role.”

    “…Its name is on the court docket for the case because of that ADMINISTRATIVE role….”

    Oh. We’ll try to remember this.
    So now we’re back to the servicer, as in it’s the servicer (not us, they cried!) trying to foreclose? From MERS to the trustee and now it’s the servicer (again) who’s doing the foreclosure. No, they can’t take the scrutiny. The judge is likely grappling with just whom he may sanction as well as a bottom line of what he’s going to do with this sorry cast.
    Dunno who brought this to our attention again – but thanks. And keep us posted! For anyone who missed it, as I recall the good judge said the buck stops at the CEO of HSBC and ordered her to appear at a show cause hearing. She didn’t, and HSBC is telling the judge she didn’t have to so eat a rock.

  4. she didn’t appear

  5. tnharry- you are correct, the CEO/pres was ordered to appear. Don’t know if she did or not. Schack was getting increasingly irritated with their documentation irregularities, and wanted her to explain why HSBC shouldn’t be sanctioned

  6. i was trying to remember the name Irene Dorner, CEO of HSBC that was ordered to appear and show cause why she should not be sanctioned. here’s an update i found :

    Dorner did not appear at the hearing, but the bank and law firm were each represented by attorneys. Schack has not issued a ruling on any sanctions, but said he hopes to do so by Labor Day.

    “HSBC was represented appropriately, and we would say that Irene was not required to attend,” said spokesman Neil Brazil. “We do not believe the law authorizes sanctions on nonparties such as HSBC senior management.”

    Brazil noted that HSBC is neither the lender nor the loan servicer in this case, but is the trustee for a large package of unrelated loans in a mortgage-backed security investment. Its name is on the court docket for the case because of that administrative role, but Atlanta-based Ocwen Financial Corp. is the servicer on the loan that made the decision to foreclose, controlled the process and drafted the paperwork, he said.

    “This is all around HSBC’s role as a trustee in foreclosure cases,” Brazil said. “A trustee in these cases plays a very limited role.”

  7. wasn’t someone from HSBC supposed to appear in front of schack in the last few weeks though?

  8. Imagine, if you will (that sounds like Rod Serling on TheTwilight Zone), Scott Anderson doesn’t exist. Wouldn’t that be an eye-opener(!?!).

  9. In the lawsuit titled “Ocwen v.MERS”, attys for Ocwen stated that Scott Anderson was the only “employee” of Ocwen who was authorized to sign for Ocwen in f/c proceedings. In Guy Lavalle’s Pew Mortgage Institute (Pew Charitable Trusts) website, he identified 42 known variations of Anderson’s signature.

  10. johngault,
    Why wait a month? We need “Scott Anderson”(if he actually exists) exposed ASAP!!!

  11. tnharry- Judge Shack noticed that Scott Anderson’s name and signature had appeared in a number of f/c as vp of many different cos.,and the one in question, think it was in 2008. He wanted Anderson to produce W2’s or 1099s for the previous 3 or 4 years to prove who he worked for, who was paying him. He didn’t submit the docs or show up. Will try to find the case and post later.

  12. Ian. if you can remind me in about a month or so, I may actually be able to try to find Mr. Anderson. Know that sounds weird, but it’s true. Where is he alleged to have signed something?

  13. @ian – no, sorry, never heard of this Anderson fellow. He probably, as you guess, doesn’t exist. I had a signature and the name was printed below it – illegible. The notary penned in his printed name (instead of typing it) – illegible. And I’m still looking for Theodore Schultz who self-assigns dot’s to Aurora as a MERS straw-officer.

  14. i was wondering about the “rest of the story” on that one as Paul Harvey would say. so no one appeared for the show cause in Shack’s court?

  15. johngault- speaking of liars for hire, do you have any personal knowledge as to the existence of Scott Anderson, of Ocwen,Option One, HSBC, Deutschebank,MERS to name a few. He never showed up in Judge Schack’s court as ordered, so HSBC lost a 385k free house on that one. I am of the opinion that he doesn’t exist as a human being. He was deposed in absentia, his ‘attorney’ answering for him. I’ll even consider 2nd hand information. Hearsay would be acceptable as well. Unsubstantiated rumors a plus. Thanks

  16. I swear this is a day I feel like throwing in the towel on this stuff.
    A bk ruling regarding a mtn to compel discovery from Deutsche (original def was Aurora Loan Services or they were named and then dropped) was posted here at LL by Mr G on 5-14-11.
    In re Balderamma, Musselman (bk trustee) v Deutsche – MD FL

    Everyone was happy that the court sustained discovery at least on the note alleged to be owned by Deutsche as trustee for blah blah trust.
    Deutsch messed around and then filed for and got an extension on disc deadline. Then, they turned around and filed a mtn for SJ based on affidavits from guess who? Employees of Aurora swearing that
    Deutsche owns the note! After swearing in great detail to this and that regarding the allonge which is not stapled, apparently, to the note, including who endorsed it and when, they are leaving most of the explaining to an ALS’ employee affidavit, from one Neva Hall, with whom I am familiar and consider a liar for hire. Deutsche now admits for the FIRST time the signature on the allonge is only a facsimile and says this is cool per the psa, etc., as if the psa now overrides the UCC. ALS who generally claims it owns more notes than it services, which is bs, is the alleged servicer, but no longer a party to the action. (ALS is also generally very quick to point out it is ‘just a servicer’ when faced with a tila, say, claim.)

    Further, the affidavits of the little missy who supposedly executed the allonge (NOW known to be only a fax signature) did a bang up job of leaving this tidbit out in her affidavits in support against the motion to compel disc filed by the bk trustee. Did her damnedest to make it sound like everything was just fine.
    There just isn’t anything these guys won’t do or come up with to avoid discovery. They are trying to ‘affidavit’ their way out of the discovery the court granted and ordered. All of the bs they are now alleging as ‘evidence’ could have been introduced by Deutsche in its opposition to the mtn to compel discovery. Deutsche chose not to (for obvious reasons) and now they should be stuck with that decision.

    If they get away with this crap, I’m gonna be really sick.
    Any attorney who reads this blog should volunteer assistance for that trustee (see if she’ll receive it). This has got to stop.

    Here is Deutsche’s outrageous mtn for summary judgment:

    http://www.scribd.com/doc/62134815/Deutsche-Motion-for-SJ-in-Musselman-v-Deutsche

  17. tnharry – thanks. It’s dismaying to see people try to raise arguments on appeal not raised in the lower court, as you noted. They might have tried to get in arguments under the provisions of rule 59 or 60 first, then appealed that denial. At least had a shot. All may not be lost, however. They can come back in under 9024, I think, or maybe could have in the absence of the appeal. Like I said, I think.

  18. @john – the linked item is weisband’s statement of issues presented for appeal from the BAP to the 9th Circuit Ct of Appeals. Not too instructive. More telling is the memorandum opinion from the BAP. The borrower had some not so great facts and they missed some key procedural issues. i think i linked it properly below.

    https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B0peT6gpzblUNzY4NGM3N2QtYzE3Yi00YTZiLTk5ZWEtZjZhN2UzMTBmNDBk&hl=en_US

  19. tnharry – oops I see you hunted it down. Any chance you’d park it somewhere and link it? thanks

  20. READ THE OPINION. the article and the headline misrepresent what happened entirely. it’s not that the court didn’t require or didn’t allow evidence – the atty didn’t request an evidentiary hearing per local rule and procedure and the atty didn’t actually have any evidence to contradict what the bank had. apparently misrepresenting the facts isn’t limited solely to the banksters…

  21. well, it’s juts a motion for relief hearing, so it’s a far cry from a “free house’. I think he unfortunately had some terrible facts to work with, coupled with some procedural problems. this wasn’t the case to make the whole securitization argument in I suspect. the players on the creditor side lined up too easily with the documentary evidence. and although it shouldn’t matter, the sympathy factor from the court isn’t working in your favor for rental property…

  22. tnharry- thanks for reality check for those seeking a ‘free house’. Don’t you think that the case you just mentioned failed mostly due to an inept atty making the wrong arguments at the wrong time? There certainly seems to be enough case law out there to substantiate any claims a homeowner would care to make. I have read plenty of rambling, pie-in-the-sky complaints which annoyed the judge. “just the facts, ma’am” would be a good rule of thumb.

  23. for some reason we’re only telling a small part of the story in this posting. if you have a pacer account, read the memorandum opinion from the BAP. very interesting read. the debtor’s atty made several bad moves at and before the MFR hearings. then he tried to submit Neil’s resume and the expert declaration at the appellate stage. both were stricken due to appellate rules (you can’t generally introduce evidence not presented at the trial level). despite his assertions regarding securitization, the atty lacked any real evidence and the moving party was the original lender on the note. the court held that they had proven a colorable claim and had carried their burden

  24. Nancy Drewe, on August 10, 2011 at 4:42 pm said:
    Paul Allen’s stunning revelation about Steve Ballmer CEO & President of Microsoft technolgies at the time duly accountable for the technology revolution with internet channel licensed to MSN, regulator FCC, and facilites the filing of falsified documents. Please visit 60 Minutes and post your comments.

    Here is mine taking 2000 announcement so you all will focus on how the transactions were/are happening:

    by protectuspeople August 10, 2011 7:38 PM EDT
    Steve Ballmer CEO & President, Microsoft’s HomeAdvisor Technologies Inc. partnerships with FREDDIE MAC Chase.com GMAC-RFC, Norwest Mortgage & Bank of America automated manual 30 days into 10 days skipping recording recording mortgage deed of trust and collateral. Revolutionized real estate industry, sadly, Steve forgot to include ‘integrity’ in automated open platform. Stunning revelation by Paul that Steve Ballme & Bill Gates conspired to ‘steal’ Paul’s stock . No surprise then the virtual real estate industry channelwhich joined forces with Steve Ballmer & executives of Freddie Mac; Chase.com; GMAC-Residential Funding Corp (GMAC-RFC); Norwest Mortgage Inc., a Wells Fargo company; and Bank of America joined MSN(TM)as strategic partners and owners of the open software platform global network connect financial universe mortgage transactions. Widespread adoption of partners insures distribution to their partners, representing the majority of the nation’s real estate and mortgage professionals and integrates funding Alt-A non-conforming real estate transactions around credit checks, appraisals and underwriting decisions.

    Acquisition of Tuttle Decision Systems Inc., mortgage technology loan platform integrates depositors, sellers, purchasers, temporary lenders, underwriters unrelated third partys, insurance companies, title companies, attorneys.

    3 divisions, formed the nation’s leading consumer and business-to-business real estate and mortgage e-commerce company:

    Transaction Platform Div combines Microsoft(R) technology w/electronic loan decision processing tools (credit, underwriting & property valuation) partners streamline and automate all aspects of the mortgagereal estate transactions eliminating paperwork and red tape.

    Microsoft developed and maintains platform technologies distributed by partners to banks, lenders and real estate professionals, allowing real estate and mortgage professionals to pass along significant savings in time and cost to their own commercial brokers, dealers, distributors, brokers, attorneys, title & settlement agencies.

    Productivity Tools Div real estate professional tools expanding businesses while enabling industry professionals to fully utilize customized versions developed Realty Desktop, complete suite of tools specifically for the nation’s leading real estate companies.

    HomeAdvisor.com Div incorporate consumers with every aspect of buying, financing, moving into, maintaining, improving and selling their home. First site to offer loan platform promoted through aggressive consumer marketing campaigns.

    Jonathan Gaw, research manager of consumer e-commerce at IDC bless technology binding mortgage quotes in real time boosts the development of online real estate industry

    Microsoft’s majority stake in HomeAdvisor Technologies Inc.; Chase.com, Capital Partners, GMAC-RFC, Norwest Mortgage and Bank of America equity interest.

    Freddie Mac provided significant technology contributions, with financial interest in the new co. with strong ties back to industry partners and parent companies in the form of commercial agreements for technology sharing and distribution through online and offline channels–Leland C. Brendsel, chairman and CEO of Freddie Mac makes suite of innovative tools available to our lending partners, and enabling them to deliver a faster, mortgage process to consumers.

    Tuttle’s technology in 2000 networks over 800 mortgage banks across the country to the nation’s largest mortgage conduits and facilitated the electronic registrations via seamless data exchanges,integration of key underwriting engines,d loan origination systems unique venture is a natural extension of Chase’s long-standing relationship with Microsoft and brings together highly trusted companies and industry leaders that share a clear vision for creating new business models for the Internet economy,” said Denis O’Leary, executive vice president of Chase Manhattan and head of Chase.com.

    Chase Home Finance, the nation’s leading mortgage originator and servicer, using Internet for Chase’s entire financing correspondents, brokers, realtors and corporate customers with strong ties to MSN through a long-term commercial agreement that makes HomeAdvisor.com the network’s exclusive channel for home, real estate and mortgage decisions customers access to the most integrated shopping and e-commerce experience available on the Web today.

    Chase.com said Microsoft is the mortgage technology company best positioned to deliver real value said Bruce Paradis, president of GMAC-RFC. Microsoft’s technology leadership with our deep relationships& expertise in finance industry will be extremely tough to beat.

    wfhm.com largest direct lender to consumers, enters into this virtual relationship,” said Pete Wissinger, president and CEO of Norwest Mortgage Inc.

    Microsofts’ HomeAdvisor Technologies dramatically changed real estate industry into global network and harmed economy

  25. I think the answer depends first of all on whether or not relief from stay
    is predicated on the poc. If the poc is deficient as a matter of law and relief is predicated on the poc, then seems to me no bankster is entitled to relief.
    Courts imo are heinously overlooking deficient poc’s and they are similarly heinously overlooking the need for either stipulation or leave of court to
    amend deficient poc’s past the bar date (is that under rule 15? I forget) – see amendments to poc’s. Courts are allowing “missing” and unauthenticated documents attached to a relief from stay motion to stand in for the deficient poc( and this is past the bar date).
    If a poc, for instance, did not have an assignment of the dot or an authenticated copy of the note with endorsements, why are these courts granting relief from stay? (We have to look to rule 3001, I think it is, for what constitutes a valid poc.) So if this is the case, objections to motions for relief from stay must include an objection to the poc. I’d head them off at the pass with an objection to poc prior to filing the mtn for relief from stay, but there’s strategy involved unfortunately and you don’t want to give them any more wiggle room than necessary. In my lay opinion.

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