ANOTHER AG (NEVADA) DISAVOWS DEAL WITH BANK OF AMERICA

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In her filing, Ms. Masto contends that Bank of America raised interest rates on troubled borrowers when modifying their loans even though the bank had promised in the settlement to lower them. The bank also failed to provide loan modifications to qualified homeowners as required under the deal, improperly proceeded with foreclosures even as borrowers’ modification requests were pending and failed to meet the settlement’s 60-day requirement on granting new loan terms, instead allowing months and in some cases more than a year to go by with no resolution, the filing says.”

EDITOR’S NOTE: It is becoming obvious that the smartest politicians in law enforcement are discovering that the deep well of loathing for the megabanks is a greater source of votes and money than the banks themselves. My advice is : run against the banks. Nobody likes them anyway, and as the facts continue to be revealed, any association with the banks will be tantamount to being a captain in organized crime.

Note that one of the allegations is that the Bank falsely claimed that the investors had turned down the deal for modification or settlement. In fact, it is obvious that investors are, as a matter of routine kept in the dark about any settlement offers and never contacted about modification. This is a ripe area for litigation — especially where modification or mediation is required as an alternative process.

Nevada Says Bank Broke Mortgage Settlement

By

The attorney general of Nevada is accusing Bank of America of repeatedly violating a broad loan modification agreement it struck with state officials in October 2008 and is seeking to rip up the deal so that the state can proceed with a suit against the bank over allegations of deceptive lending, marketing and loan servicing practices.

In a complaint filed Tuesday in United States District Court in Reno, Catherine Cortez Masto, the Nevada attorney general, asked a judge for permission to end Nevada’s participation in the settlement agreement. This would allow her to sue the bank over what the complaint says were dubious practices uncovered by her office in an investigation that began in 2009.

In her filing, Ms. Masto contends that Bank of America raised interest rates on troubled borrowers when modifying their loans even though the bank had promised in the settlement to lower them. The bank also failed to provide loan modifications to qualified homeowners as required under the deal, improperly proceeded with foreclosures even as borrowers’ modification requests were pending and failed to meet the settlement’s 60-day requirement on granting new loan terms, instead allowing months and in some cases more than a year to go by with no resolution, the filing says.

The complaint says such practices violated an agreement Bank of America reached in the fall of 2008 with several states and later, in 2009, with Nevada, to settle lawsuits that accused its Countrywide unit of predatory lending. As the credit crisis grew, the settlement was heralded as a victory by state offices eager to help keep troubled borrowers in their homes and reduce their costs. Bank of America set aside $8.4 billion in the deal and agreed to help 400,000 troubled borrowers with loan modifications and other financial relief, such as lowering interest rates on mortgages.

But foreclosure problems mounted in Nevada, where Countrywide originated 262,622 loans, and complaints about the bank’s loan servicing practices began flooding into Ms. Masto’s office shortly after the settlement was struck. She found that Bank of America had “materially and almost immediately violated” the terms of the settlement, according to the complaint.

Ms. Masto declined to comment beyond the court filing.

Jumana Bauwens, a spokeswoman for Bank of America, said the bank was reviewing Ms. Masto’s complaint. “We disagree that there has been any material breach of the consent decree and will continue to vigorously defend this action,” she said.

Ms. Masto’s request to terminate the 2008 deal could raise further questions about the extent of its liabilities arising from Countrywide’s lending practices and from the bank’s own loan servicing activities in the foreclosure crisis. The move by the Nevada attorney general could also imperil the already shaky negotiations over improper foreclosure practices being conducted by state attorneys general and the four largest banks, including Bank of America.

Those talks, which also involve federal officials, have stalled over the summer with disagreements over whether the deal would allow state regulators to bring future lawsuits against the institutions for questionable practices. Attorneys general who do not want to give up the right to file additional suits against the banks — including Ms. Masto, Eric Schneiderman of New York and Beau Biden of Delaware — have declined to endorse a proposed settlement.

The breadth of the new Nevada complaint indicates that Bank of America’s problems extend throughout its mortgage operations, including origination, loan servicing and securitization. Nevada officials also found broad problems in the bank’s interactions with imperiled borrowers.

For example, the complaint says the bank advised credit reporting agencies that consumers were in default when they were not, and contends that Bank of America employees deceived borrowers about why their requests to modify loans were denied. In addition, it says, the bank falsely claimed that the actual owners of loans had refused to allow changes to their mortgages, and it incorrectly claimed that borrowers had failed to make payments on trial loan modifications when in fact they had. Bank of America also misled borrowers, the Nevada attorney general’s filing noted, by offering loan modifications with one set of terms only to come back with a substantially different deal.

Among the more troubling findings in the Nevada complaint is the contention by several Bank of America employees that the company imposed strict limits on the amount of time they could spend on the phone assisting troubled borrowers seeking help with their loans.

One worker said in a deposition cited in the complaint that employees were punished if they spent more than seven minutes or 10 minutes with a customer. Even though these limits allowed almost no time for assistance, Bank of America employees who did not curtail their conversations were reprimanded, this employee said.

The Nevada filing also maintains that Countrywide, which Bank of America acquired in 2008, did not deliver necessary loan documentation when it put together mortgage securities and sold them to investors during the boom. Under the typical pooling and servicing agreements struck between Countrywide and investors who bought the securities, the bank was required to endorse the mortgage note and deliver it to the trustee overseeing the pool. Countrywide failed to do so, the complaint notes.

These paperwork failures should have barred the bank from foreclosing on borrowers, the Nevada complaint says, but it went ahead nonetheless. This aspect of Ms. Masto’s complaint echoes a lawsuit filed in early August by Mr. Schneiderman, the New York attorney general, to block a settlement between Bank of New York and Bank of America covering 530 Countrywide mortgage pools. In that case, Mr. Schneiderman contends that Countrywide did not deposit loans into the mortgage pools as required and that the bank had no right to bring foreclosure actions against these borrowers.

Ms. Masto’s complaint asks that the court impose civil penalties on Bank of America and order it to cover the costs of caring for foreclosed properties borne by municipalities.

38 Responses

  1. […] ANOTHER AG (NEVADA) DISAVOWS DEAL WITH BANK OF AMERICA Posted on September 20, 2011 by Neil Garfield […]

  2. Oh well….
    It certainly take away from the “I GOT IT!!” excellent presentation. Good work Texas. You should catch up with our Attorney General, Appellate Division, 2nd Dept, and Kings County Supreme Court here in New York in about….50 years.

  3. uuuh….is it just me, or did whoever wrote this pleading has it BACKWARDS?? “lien theory/deed of trust”, “title theory/mortgage”??

    “The law of the state in which property is located generally will determine whether a”mortgage” or a “deed of trust” is used to pledge real property as security on a note. In lien theory states such as
    Texas, a “deed of trust” is used and only creates a lien on the property – the title relnains with the borrower. The lien is removed when all the payments have been made. SeeTaylor v. Brennan, 621 S.W.2d 592,593(Tex.1981).
    In title theory states, a “mortgage” is used and it conveys ownership to the lender. A clause in the mortgage provides that title reverts back to the borrower when the loan is paid. In common parlance, the term “mortgage” is generally used to refer to the instrument creating the security interest, whether formally denominated as a “mortgage” or a “deed of trust.” Unless noted, the terms “mortgage” and “deed of
    trust” are used interchangeably herein.”
    http://www.scribd.com/doc/65706643/Dallas-vs-Mers-Et-Al at Page 8.

  4. @Tim.

    flowers are pretty

  5. @angry & not taking it.

    yes, I know that and agree.

    The media paid by the banks via credit card commercials will spin it. And they will spin it for “competition” thus lowering costs for the consumer, ————all BS. But they will spin it that way or one way or the other.

    There is a non violent way. Stay away from the banks, don’t use CC cards – those plastic demons. Don’t take out car loans. Don’t buy new stuff.

    If you need to , borrow money from friends and family, pay them the interest and pay them back w/o fail.

    How do you convince a friend or family to lend you money? This is easy. You tell them listen, you lend me 1000 bucks and I’ll pay you back 1000 plus 100 in a years time. That is 10% in one year. So friend, can you get 10% return risk free from a savings account, a CD, from the stock market? In a years time? This god damn country was founded on that. It’s only when the banks convinced people to borrow from them………………………and not your family and friends…………..that things are were they are.

    Friends and family are more willing to help then these banks.

    I forget now, what is that thing the power of five or something like that. You know what I mean. You know somebody that knows somebody that knows somebody that can lend you the money.

  6. @ ENRAGED

    I can see why you have lost everything!

    It’s, flour to make bread, not flower

  7. cubed2k
    “What gets me is this. What is there to study. Just do it. No Dakota has been using a state bank for a long time and it works. What is there to study? Anyways………”

    this is allow the money interests to bid on the plan and study to protect the “status quo” of the 1% – if they cant grease the wheels to appease the Ca Gov threat, then the study will take ” years” to figure out how the kuntry of Kaliphonria can fix the endgame and pocket the difference during the “study” . I can not see a non violent way out of the “status quo”. this is sad!

  8. Please read and email your friends this article from The Guardian this morning regarding the peaceful occupation/protests on Wall Street happening NOW! This is important.

    http://www.guardian.co.uk/commentisfree/cifamerica/2011/sep/21/occupy-wall-street-amy-goodman

  9. @enraged,

    yes agree, it’s nice to have ack’s on postings. One at least one knows that somebody is reading the post.

    Here we have Stacy and Max ( maxkeiser dot com) talking about Derivatives which are MBS and housing related. Then half way thru Ben Still on the Fed Res and money. Funny he mentions No. Dakota and their state bank. Calif has a bill stilling on Gov Brown desk right now to start a study into a Calif state Bank. Realize if Calif starts a state bank like No. Dakota we can get rid of Wall St.

    What gets me is this. What is there to study. Just do it. No Dakota has been using a state bank for a long time and it works. What is there to study? Anyways………

  10. […] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, […]

  11. enraged—
    maybe if you weren’t being such a jerk someone might answer your questions—which by the way have all been answered before on this site…we all are trying to have a life outside this blog—believe it or not—and sometimes people get tired of answering the same question over and over. Especially if the person asking the question is insulting first.

  12. Cubed2k,

    Do you get that awkward feeling that you write for the blind? Did anyone answer or even acknowledged any of your posts?

    People in denial, who haven’t answered specific questions, addressed to specific bloggers, such as “Hey, Tim and Carie, how do I find if my loans were securitized and can you walk me through the process or help me figure it out” keep on rehashing the same song about unsecuritized loans, empty trusts and the likes.

    You are absolutely right: it affects everyone, young, old, everyone. Student loans, mortgages, everything. It is all Wall Street doing. And not one word on the news today about a four-day long demonstration on Wall Street and one demonstrator being beat up into a coma. That’s what gave Hitler the chance to win the 1933 elections after 14 years of the “Diktat”. 30 years of Wall Street and denial so thick, it will have to take a few dead to wake up people to reality. By then, it will be too late… there ain’t gona be no America left to fight its self-imposed demons no one with common sense will want to fight against.

    There once was a country called the United-States of America. It self-destructed by complacency and greed.

    So, Carie posts that incredibly accurate video from Catherine Austin Fitts who articulates all the issues and the blessing internet is for revolutions, the lack of transparency, the solutions to apply, etc. And then, Carie rambles about “unsecuritized” student loans and whatever nonsense that will never, ever get her anywhere. Is this a festival of mindless auto satisfaction or what?

    Yeah, Cubed2k. Watch TV and get drunk. It will bring you pleasure this site never will. And get your information elsewhere because here, people shoot from the hip and hardly ever answer when put to the task.

  13. I thought I heard that the student loans were “securitized” also…collection rights sold on those, too??? Hmmm….

  14. Hi all,

    Has anyone heard from [Herman] Jan Van Eck, the attorney from Connecticut?? People are looking for him. Please post if you know his ware about..

  15. Want a good laugh The judge let the Trustee [who is not an attorney] sell a judgement that I sold over 1.5 years before filing.

    It was disclosed and all the property was abandoned 11 U.S.C 544, AND EVEN YET THE NEW JUDGE CLARKSON, allowed it to happen. This is but one of the two appeals for this new judge.

    http://www.scribd.com/doc/64635497/BAP-Reply-Brief-BAP-1353-Davies-v-Trustee-Zimmerman-09112011

  16. cubed2k these college graduatesI think the number is 6.9million have moved in with their parents.
    they even have a name for them boomerang kids

    http://money.cnn.com/2010/10/14/pf/boomerang_kids_move_home/index.htm

  17. Cubed2K

    When it comes, it doesn’t care about republicans, democrates, right, wrong, it’s just a collective anger exploding.

    Camps get sorted out afterwards. We saw it in 1968 in Europe and it was bloody. Really bloody. Huge collective fed up from the population as a whole. Seniors, students, employees, non-employed, state workers, you name it. Extremely well-educated, population having lost so much in such a short time that… it simply exploded. We are getting there and it has nothing to do with banks and securitization, AGs politicking, presidents not doing their job.

    It’s a big, huge ENOUGH. It gets sorted out afterwards. I predicted to my own attorney “Riots and violence, the likes of which America has never seen”. I’m on record as having predicted it in many places.

  18. http://dalehyde.wordpress.com/2011/09/20/could-social-unrest-create-riots-in-united-states/

    It will happen. Don’t know when or how but it is coming.

  19. @enraged

    per your link

    You have a lot of kids graduating college can’t find jobs,”

    Also please note these college grads have student loans. Now what?

    Mr Obama? Education is the key, he says. So do others.

    But they are in debt?????????and no job after now graduating and now in debt.

    debt debt debt ===== money money money

    all the while the debt debt debt is sold on wall st, and those in debt are stressed out, on this make believe debt system. Must have more debt created in the big picture, otherwise the money stops for those that created the debt………….addd more rules………

    jeepers Mr Obama, if education is the answer, and yet those that get a loan for college, and the same then can’t get a job, now what?

    But wait a minute, student loans are not dis chargable in BK. Holly shit Batman. Riddle me that. I’m enslaved to the solution – education. Sign the dotted line here for your student loan to get a education that no jobs will be waiting for you when you graduate………………

    I think I will flip burgers and get drunk and watch TV.

  20. to say it’s big government, to say it’s dems vs repubs vs libs vs tea party is all BS.

    Big gov and dems and repubs and libs and teas is all BS.

    Look, Wall St wants all this BS, so as to add more confusing rules on top of already confusing rules.

    We have the best Government that money can buy.

    It is always about the money! Always. Hence all so called parties: repubs and dems and teas and libs get campaign money from the same, Wall St.

    To say it’s big Gov or small Gov doesn’t matter. Wake up.

    It’s about confusions in the rules and thus we all fight about the rules, and all during the while, Wall St still makes their money.

    You have to separate Wall St and money from the Gov. And that includes local Gov’s at the state level.

    Strip away the power of money to influence and leverage by interest or accounting book keeping entry and replace it with the power of money to produce actual products and magnify that to the public that want it, it being something that can be exchanged.

    Look toward the North Dakota Banking System. They have solved it for 100 years under the Fed Res System. They are smart.

  21. This kind of insanity will not get resolved in courts. They’re running out of time and they make the wrong rulings.

    It will start somewhere and it will spread. Wall Street might be it. Laws of physics. We are there. Too many crushed hopes, too many inequities for too long. AGs won’t change the course of history. Are we in for hot-tempered riots or solid civil disobedience? Don’t know but we sure a hell want change, one way or the other.

    http://www.commondreams.org/view/2011/09/20-9

  22. Dig this:

    http://mortgagemovies.blogspot.com/2011/09/nh-supreme-court-temporarily-helps.html

    TUESDAY, SEPTEMBER 20, 2011

    NH Supreme Court temporarily helps Shawn Masterson avoid ethics complaint in dirty Wells Fargo Mortgage Fraud case.

    So no sooner than I issued by Notarized Affidavit did the NH Supreme Court Disciplinary Counsel dismiss it based on jurisdiction and standing…. so now they give a damn about standing when Attorney Masterson never showed that Wells Fargo had it in the first place. What a bunch of hypocrites. But guess what?

    If I am not a directly affected party, Jeanne Ingress is and she will file. Moreover, I am asking them to instigate a Complaint based on what I showed them. NH Courts might as well be bought and sold by the corporate elite for the most part. Just a bunch of completely lawless thugs IMO. They will in turn probably deny both matters, I am just here to make the record as Ms. Ingress continues on with her Federal Complaint and Petition to Quiet Title. Meanwhile responsible State Actors in Nevada do better. Much mo betta’ thanks to AG Catherine Corez Masto. And oh, in Mississippi we have a real U.S. Trustee doing what NH Trustee Larry Sumski refuses to do, he instead hates on KingCast and Mortgage Movies calling me a “YouTube cohort.” I heard him say it right in front of me when he didn’t know who I was or that I was there in Open Court, the scumbag. Watch the video.

    1. Case No. 10-10518 filed in the U.S. Bankruptcy Court for the Northern District of Mississippi, Chapter 13 Trustee Locke Barkley filed an Objection to proof of claim submitted by Bank of America Home Loan Servicing, LP. Proof of Claim shot down.
    2. In Case # 09-11763 filed in the U.S. Bankruptcy court for the Northern District of Mississippi, chapter 13 Trustee Locke Barkley filed an adversary complaint case # 10-01172-DWH against…..

  23. Personally, I think we are going to see massive changes coming in the next 6 months. The govenment and the banks are getting way to bold, and when the hinges come off…….NONE of them will be able to safely hide. The people of America are TOO BIG TO FAIL!!!

  24. One death is all it will take to blow up.

    And if social security, Medicare and military benefits are being cut while Wall Street lives fat and happy, it will become really, really violent. Not because grand’pa and grand’ma mumble, rumble and grumble but because once a government loses the military, it loses everything… Military don’t have “entitlements”. They just reap the benefit of having fought hard and risked their lives to keep this country together. Don’t, please don’t touch the military. Don’t touch police and firefighters’ unions. You’re playing with fire and you’ll get severely burnt.

    This kind of insanity does not get resolved in courts of law. It gets resolved in the streets. We’ve seen it in Egypt, Tunisia, Lybia and now Yemen. If slow-moving-let’s-be-nice-and-remain-civil Americans take it to the street, it will blow. Part of me hopes it does. Part of me fears it will.

  25. 4 years and nothing has been done to help homeowners and to take away Wall Street’s power. It will become violent. It is just starting… Our government has about 3 months to take a stand people can believe in. Otherwise, it is coming…

    http://www.huffingtonpost.com/2011/09/20/occupy-wall-street-enters_n_972267.html

  26. Lighten up zurenarrh, it was a joke. The following isn’t. The first story is from Housing Wire:

    http://www.housingwire.com/2011/09/20/amherst-to-senate-10-million-more-mortgages-set-to-default?utm_source=feedburner&utm_medium=twitter&utm_campaign=Feed%3A+housingwire%2FuOVI+%28HousingWire%29

    Tuesday, September 20th, 2011

    Roughly 10.4 million mortgages, or one in five outstanding home loans in the U.S., will likely default if Congress refuses to implement new policy changes to prevent and sell more foreclosures, according to analyst Laurie Goodman from Amherst Securities Group. (In addition to the 5 million plus already taken)

    Now there’s a story stating that nearly everyone other than those in Congress or not in upper management of a major bank is heading for foreclosure, and the perils that await us if this is allowed to continue unchecked. Then the very next article, also from Housing Wire:

    http://www.housingwire.com/2011/09/13/bank-of-america-shifts-west-coast-foreclosures-into-overdrive

    Notice of default filings jumped nearly 70% in California from the previous month, led by renewed activity from Bank of America according to the data provider ForeclosureRadar.

    Foreclosure starts increased in five West Coast states from the previous month: California, Arizona, Washington, Oregon and Nevada.

    BofA foreclosure starts more than doubled in August, jumping 116% from the previous month. Wells Fargo and U.S. Bank also showed increases but fell short of the BofA restart, according to ForeclosureRadar, which monitors West Coast states.

    “While it can’t be said for every state in the nation, we are seeing continued improvements in foreclosure volumes in many areas of the country, and that is a potential harbinger for housing market recovery,” a BofA spokesperson said. “Strong gains like that from July to August demonstrate our progress – primarily in non-judicial states like California and Nevada – clearing more volume to advance to foreclosure once we pass the numerous, improved quality controls we have in place and only after all other options with homeowners have been exhausted.”

    The first story discusses the obvious in your face dangers of a nation pursuing foreclosures upon nearly everyone holding a mortgage. The very next story in the same publication quotes B of A as saying that they are experiencing “continued improvements” in ratcheting up the foreclosure machine.

    Have we yet heard the results from the Cease and Desist orders from the OCC? John Walsh demanded corrections on the very same issues that AZ’s AG is itching to sue on as we speak. What’s wrong with this picture? The crooks are again allowed to go back to business as usual, even though absolutely NONE of the defects (read: FRAUD) that were detailed by the normally asleep at the Wheel John Walsh slapped B of A and others for just late spring. This is dereliction of duty on the OCC’s part, and an obvious failure to adhere to a regulators orders on the part of B of A. Where in the world is Congress? Where’s Obama? Where’s the Justice Department? The FBI? Does anyone care about laws any longer?

    It’s a sad state of affairs when we’re reduced to a few AG’s and two county recorders going after the most significant crimes against humanity of all time….and our government watches from the golf course. “Hell of a shot Boehner,….Thanks Barack…”

  27. Simon this is a new story. But the Attorney Generals are all talk and nothing gets done. They have more lawsuits more commitees etc… but nothing really is getting done.

    http://stopforeclosurefraud.com/2011/09/19/nevada-ag-puts-bank-of-america-on-notice-over-foreclosure-fraud/

  28. Wall Street is also getting it Money Talks.

    http://quotes.wsj.com/BAC

    What about Califonria Attorney General and Moon Beam Governor. If Mother Teresa is turning in her Grave (Moon Beam Brown’s Mentor).

    But what do you expect when you dont have Flower to make Bread you loose your morals. California is Broken very sad.

    NEVER AGAIN

  29. Guys, give Neil a break! He is not omnipotent! Some people may have missed the story last month.

  30. This is another example of our great government blowing it by agreeing to a settlement that harmed homeowners by not allowing a “private right of action.”

  31. Very funny, E.Tolle…I think you should write something wonderful for us to read here instead…I always enjoy your witty posts…

  32. Ohio Appeals Court Reverses/Remands Mortgage Foreclosure Case For Trespass and Damage to Personal Property. – 2011-09-19 02:02:54-04

    [Cite as CitiMortgage, Inc. v. Robson, 2011-Ohio-4617.] COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT CITIMORTGAGE, INC. Plaintiff-Appellee -vs- DONALD SCOTT ROBSON, ET AL Defendant-Appellant Excerpts: {¶4} The case began as a mortgage foreclosure case, and appellant counterclaimed for trespass and damage to his personal property. The court found the mortgaged house was unoccupied […]

    Read more at
    \http://stopforeclosurefraud.com/2011/09/19/ohio-appeals-court-reversesremands-mortgage-foreclosure-case-for-trespass-and-damage-to-personal-property/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ForeclosureFraudByDinsfla+%28FORECLOSURE+FRAUD+%7C+by+DinSFLA%29

  33. Nevada AG puts Bank of America on notice over foreclosures

    http://www.vegasinc.com/news/2011/sep/19/fighting-good-fight/

    Monday
    19 September 2011
    3 a.m.

    Call it Nevada’s version of David versus Goliath.

    As foreclosures continue and homeowners cry foul against lenders in their bids to stay in their homes, Nevada’s Attorney General Catherine Cortez Masto is taking on Bank of America in federal court. And the issue is going to heat up as Cortez Masto’s office investigates BofA and other parties in the foreclosure process. She says criminal charges are likely coming to the industry soon, which could provide more ammunition for her foreclosure fraud case.

    Cortez Masto wants to revoke a 2009 settlement with BofA over loan abuses involving its Countrywide Financial Corp., saying the bank has violated its terms. She claims the banking giant has harmed homeowners by failing to modify their mortgages and maliciously deceived some by telling them their loans would be modified, then foreclosing on them. BofA denies the allegations.
    Read more at
    http://www.vegasinc.com/news/2011/sep/19/fighting-good-fight/

  34. Tampa Judges – Expediency Over Accuracy?
    http://www.stayinmyhome.com/blog/?p=1740
    Posted on September 19, 2011 by Mark Stopa Esq.

    Ever since the senior judge system ended in Hillsborough County, I’ve had one frustrating experience after another with the judges in Tampa. It’s gotten so bad recently that I’ve often wondered “do you care about accuracy, or just expediency?”

    Today, for example, I received an Order from Judge Bergmann denying a Motion to Dismiss and Motion to Quash Service without notice and without hearing. Unfortunately, these types of Orders have become all too common in recent weeks, at least so far as Motions to Dismiss go. What particularly irked me about this one, though, was the judge’s ruling that:

    Defendant’s Motion to Quash is denied. Defendant submitted himself to the jurisdiction of the Court by filing a Motion for Extension of Time, before filing the Motion to Quash.

    In layman’s terms, the Court denied my client’s Motion to Quash Service, not because it lacked merit, but because the Court thought my client waived that argument by first filing a Motion for Extension of Time. This was hence a very narrow legal issue – does a Motion for Extension of Time waive a Motion to Quash Service?

    Tellingly, the Court cited no case citations in its Order for the proposition that a Motion for Extension of Time is a waiver of a Motion to Quash Service. Of course, after about two minutes of research, I confirmed what I already knew – a defendant does not waive a Motion to Quash Service by first filing a Motion for Extension of Time. To illustrate, the Third District has ruled:

    The single issue presented by this appeal is whether the filing by Barrios’ attorney of a Motion for Enlargement of Time constituted a general appearance and hence a waiver of Barrios defense of lack of personal jurisdiction and insufficiency of service of process. It does not.

    Barrios v. Sunshine State Bank, 456 So. 2d 590 (Fla. 3d DCA 1984).

    Unfortunately, the Court ruled against me on this issue without a hearing, without notice, and without asking or allowing the parties to provide case citations in written format before making a ruling. And as the Barrios case reflects, the Court was wrong in its ruling. As a result, I had no alternative but to draft this Motion for Rehearing
    http://www.stayinmyhome.com/blog/wp-content/uploads/2011/09/Motion-for-Reconsideration-on-Order-Denying-Motion-to-Quash.pdf and this letter Judge Bergmann enclosing it. http://www.stayinmyhome.com/blog/wp-content/uploads/2011/09/Ltr-to-Judge-Bergmann-encl-Motion-for-Rehearing.pdf

    I’m hopeful the Court will do the right thing here and change its ruling. However, even if it does, I have greater concerns.

    Most significantly, while I totally disagree with the process of denying motions to dismiss without hearings, it’s clear to me that this procedure should be employed, at worst, only to those motions that judges see on a regular basis. In this case, this motion clearly wasn’t one of them.

    In a situation like this, where the Court had before it a motion that is not boilerplate and contained a relatively novel issue (i.e. whether challenges to service of process are waived by a motion for extension of time), it is incumbent upon the Court to conduct a hearing and give both sides a chance to be heard. Otherwise, when the Court rules in the banks’ favor and its ruling is erroneous, as here, it creates the strong impression, rightly or wrongly, that the Court cares only about expediency, not accuracy. That impression, respectfully, is one which the Courts must strive to avoid.

    I’m not perfect, and I don’t expect the Courts to be, either. However, I do expect that the Courts won’t have the attitude of “this is just another foreclosure case; I’m ruling against the defendant.” I’m not saying that’s what happened here, but the dynamics create a reasonable fear among my clients that it could be.

    Finally, bear this in mind – if this is what’s happening in my cases, where I’m fighting for homeowners, how do you think those without an attorney will fare?

    Mark Stopa

    http://www.stayinmyhome.com

  35. Yes Simon, Neil accidentally picked up last month’s NY Times to read with his morning cup. At this rate, he’ll be reposting about the crash of 2008 all over again shortly. I don’t think I can rehash that crap again….

  36. lawsuit after lawsuit, the SEVENTEEN the FHHA just filed; over 10 securities lawsuits; and even FDIC v. K.Hovnanian American Mortgage, the GOVERNMENT themselves accuse the BANKS, and even the builder, (in my case, Hovnanian) of submitting FORGERYS, FRAUDULENT DOCUMENTS, FALSE AFFIDAVITS; FRAUDULENT APPRAISALS.

    Yet, not one case that I can find has been able to seek relief on these very same exact allegations.

    Hovnanian actually switched the MERS NUMBERS on Deeds of Trust, and then forged my name, and on top of that did a simultaneous closing on a Straw-Man home with my husband. All without my knowledge. The FBI even said there were FOUR LOANS, when I went and said I had been defrauded, and the MERS NUMBERS SWITCHED. Yet MANATT, a law FIRM submits, a forged contract, forged by the very same person who forged the Deeds of Trust! Her handwriting is obvious, and they still in the attempt to weasel out of this fraud and CRIME.

    The Govnerment is condoning this, as THATS the pockets that gives them all those political DONATIONS.

    MADOFF was reported with many complaints, over TEN YEARS before they shut him down. THEY KNEW. Its ALL LIES.
    The US is ran by ORGANIZED CRIME. Always has been, and probably always will be.
    We need a new constitution, something about the “right to own property” that would be nice.

  37. uh, wasn’t this posted a couple weeks ago?

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