UTAH ATTORNEY SUCCEEDS IN GETTING REMOVAL TO FEDERAL CT REMANDED BACK TO STATE CT CONVERTING NON-JUDICIAL TO JUDICAL FORECLOSURE

MOST POPULAR ARTICLES

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

LAWYER OVERCOMES PRESUMPTION OF VALIDITY OF TRUSTEE DEED IN UTAH

 EDITOR’S NOTE: BOA and Recontrust, their puppet “substitute trustee” have stumbled into a quagmire and attorney John Christian Barlow has seized the opportunity to shine a light on the illegal foreclosures by BOA and Reconstrust. This might have national implications. 
BOA and Recontrust made all the way through the usual fake auction and some underling signed a Trustee Deed. Under State Law the Trustee is presumed valid, which is to say, properly procured. But Barlow attacked the validity of the sale in the eviction action where BOA sought to obtain possession. As in other cases he recently started fighting, he attacked the validity of the sale. By raising serious issues concerning the auction, “sale” and the pattern of conduct, Barlow succeeded in overcoming the presumption of the validity of the Trustee Deed.
This left BOA with a naked deed that needs to be authenticated and validated by the Utah State Court. BOA and Reconstruct actually stumbled twice by invoking their “right” to Remove the case to Federal Court where the Judges have been friendlier to banks. Tearing apart the arguments one by one, the Federal Judge said that Recontrust and BOA had argued themselves into a corner thus depriving the Federal Court of jurisdiction since this was obviously a matter to be heard in state court, as to whether the eviction could proceed.
The written opinion of the Federal Judge alerted the State Judge to inconsistencies in the positions argued by BOA and Reconstrust. So the whole case now is going to be heard judicially as to whether the eviction is proper — a  finding that is entirely dependent upon whether the Trustee’s Deed will stand up to scrutiny and be sustained — or if the Trustee’s Deed is removed or expunged from the title records because of the various illegal actions with which we are all now too familiar.
Once the Trustee Deed is discredited  (it is already put in doubt by Attorney Barlow and the findings of the Federal Judge), title reverts back to the homeowner and they get to stay in their home and they can negotiate with the real creditor in good faith.
Utah law is not the same, but is similar to many other states. Check with a lawyer before you assume anything or do anything. But the fact remains that removal to state court can be challenged (Motion for remand) and the non-judicial sale can be converted into a judicial foreclosure proceeding — something no banks wants because they must allege and prove things that are simply not true. That it was done in an eviction proceeding is all the more impressive but it is also logical that it occur there because it is not until after the pretender has committed itself in writing to each and every act that they can no longer play musical chairs or musical documents to give the Judge “what he wants.”

(Salt Lake City, UT) – St. George attorney John Christian Barlow, representing homeowners who have lost their home to the Bank of America’s (NYSE: “BAC”) foreclosure machine ReconTrust, may have finally achieved a measure of success in the battle of Utah homeowners against ReconTrust’s illegal foreclosures.

Federal Judge Clark Waddoups Thursday returned to Utah Fifth District Court in St. George a case in which ReconTrust was named as a third-party in the complaint claiming immunity under the National Bank Act in an unlawful detainer action. (ORDER and MEMORANDUM DECISION)

25 Responses

  1. […] Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: Bank of America, bankruptcy, BOA, borrower, countrywide, disclosure, Eviction, foreclosure, foreclosure defense, foreclosure offense, foreclosures, fraud, LOAN MODIFICATION, modification, quiet title, ReconTrust, remand, removal, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND Livinglies’s Weblog […]

  2. @enraged

    I’ve been paying cash, and it has been a pleasure, for 3 years now ever since I drop kicked my credit cards into the trash by defaulting on all of them when they raised my interest rates to 30% after paying on them for years and years. ” A good customer”.

    Customer, remember that means they are a business, and I dropped them, no more business from me.

    I hope others join in and realize this. As the so called economy is 70% consumer, we do have the power, and lets use it.

  3. It’s not so much the news itself. That one is not really news anymore. What matters is the spin put on it. I didn’t realize how crucial California was to that negotiated settlement with banks.

    Now that Californiaq is out, I expect more states will pull out “en-masse”. Already 8 states out of 50. Which one is next?

    http://www.businessinsider.com/california-pulls-out-of-foreclosure-settlement-talks-2011-10

  4. A new and improve way to kick the middle class in the shins, starting… today.

    Time to go buy a safe and to start paying everything cash, the old fashioned way our parents taught us and everyone else untaught us.

    http://community.nasdaq.com/News/2011-09/durbin-takes-effect-oct-1-should-you-care.aspx?storyid=96604

  5. It sure looks like it, A Man…

    After shamelessly profiting from it, stealing our homes, refusing to play by the rules, bumping bank fees to $3.00 (or even $5.00!), they are creating a serious consensus in maybe… 80% of the population that they should never, ever have been bailed out and all of it was deliberate and calculated to destroy world economy and make sure we become so weak and destitute, we never look into their shenanigans.

    They are now doing absolutely everything to asure we start looking at ways to get back our money and finish them up. If it isn’t not shooting oneself in the knees, I don’t know what is… How does the say go again? Give a man enough rope and, eventually, he’ll hang himself.

    Anyone willing to help put them out of their misery quicker (and out of ours, by the same token)? We take no prisoners… No need to crowd our jails with such vermin.

  6. Hey A Man, yeah, that article has the Ministry of Truth’s hands all over it. But what would one expect from a journal of wall streeters?

    On the other hand, read author Chris Hedges take on what’s going down. We’ve been sharpening our pitchforks for long enough. It’s time to take it to the streets. The occupation of Main street’s time has come to an end.

    There are no excuses left. Either you join the revolt taking place on Wall Street and in the financial districts of other cities across the country or you stand on the wrong side of history. Either you obstruct, in the only form left to us, which is civil disobedience, the plundering by the criminal class on Wall Street and accelerated destruction of the ecosystem that sustains the human species, or become the passive enabler of a monstrous evil. Either you taste, feel and smell the intoxication of freedom and revolt or sink into the miasma of despair and apathy. Either you are a rebel or a slave.

    To be declared innocent in a country where the rule of law means nothing, where we have undergone a corporate coup, where the poor and working men and women are reduced to joblessness and hunger, where war, financial speculation and internal surveillance are the only real business of the state, where even habeas corpus no longer exists, where you, as a citizen, are nothing more than a commodity to corporate systems of power, one to be used and discarded, is to be complicit in this radical evil. To stand on the sidelines and say “I am innocent” is to bear the mark of Cain; it is to do nothing to reach out and help the weak, the oppressed and the suffering, to save the planet. To be innocent in times like these is to be a criminal.

    http://www.truthdig.com/report/item/the_best_among_us_20110929/

  7. Wow the banksters are gettting real desperate. This is one of the dumbest articles I have ever read in my life

    http://online.wsj.com/article/SB10001424053111904060604576572532029526792.html?mod=WSJ_hp_LEFTTopStories

    NEVER AGAIN

  8. http://www.huffingtonpost.com/2011/09/30/california-mortgage-settlement_n_989716.html

    “The state of California is pulling out of multi-state negotiations with large U.S. banks to resolve allegations of mortgage abuses, according to a letter obtained by Reuters, dealing a sharp blow to long-running efforts to secure a broad settlement.

    California Attorney General Kamala Harris wrote in a letter on Friday that she will pursue her own investigation.

    “California was being asked for a broader release of claims than we can accept and… the relief contemplated would allow too few California homeowners to stay in their homes,” Harris said in a letter to government officials leading the talks.

    New York exited the talks in August over a disagreement about how much legal immunity the banks should receive in any settlement.”

  9. The laws of this land enslave it’s people to Wall Street and the banks. It is time to be who we are..Rise up and fight these bastards..They offer nothing in return. They are the outlaws…Occupy Wall Street
    Be a patriot and stop your mortgage payment ! We have to shut them down.

  10. http://latimesblogs.latimes.com/money_co/

    This is the actual letter from Kamala Harris to Miller.

  11. Thank you — Ann — great post

    Very odd — “that an employee of American Home, now purporting to act as U.S. Bank’s servicing agent, filed an affidavit…..”

    This is the very issue that has come to light in some courts across country — no direct knowledge. That is, the employee of American Home — has no direct knowledge to file an affidavit on behalf of U.S. Bank.” They merely claim to be a servicing agent.

    And, this is a big problem. Especially, since it is unlikely that any employee of U.S. Bank — would file a similar affidavit.

  12. Yes, I know, A-Man. There was a story about her treachery on market-ticker. I’m concerned that she might be in bed with the banksters, but I’m cautiously optimistic. At least she didn’t throw us under the bus immediately, right? Gad, like THAT’S a good thing…we have the right to expect much better from our public officials. I’m still irritated that she has NEVER ONCE responded to at least 6 e-mails sent to her office. At least old Jerry B (even though his sister was a Countrywide/B of A exec) when he was state AG placated the consumers with a reply.

  13. This is the best news ever. Consumer Reo, LLC, the back up, Is in Utah. Can anyone help me in California with my case, defendants are Saxon, Mers, and Consumer Reo,LLC. Case has been pro per for two years now. Mers just responded, Saxon goes in & out, Consumer Reo has been with the case. Oct 14 & Oct 24 is the case mgt conf. I have a fee waiver. would anyone like to help me respond back & stand to deliver this. Make this another Trophy for us homeowners.
    suttons77@hotmail.com Angela Sutton 562 441 6589
    Orange County, Central Justice, Santa Ana. C12 or C15. Judge S. Moberly.

  14. Hey Thanks leapfrog for the info.
    This Kamala Harris is unpredictable.
    She is being sued in Federal court by California Homeowners. Kamala Harris is suing there Attorneys who are defending them against BofA.

    http://whereisthenote.org/hundreds-of-homeowners-sue-attorney-general-kamala-harris-in-federal-courts/

  15. BOMBSHELL- GEE V. US BANK great job TEAM ICE- (AGAIN!)
    September 30th, 2011 | Author: Matthew D. Weidner, Esq. Incredibly, U.S. Bank argues that “[i]t would be inequitable for [Ms. Gee] to avoid
    foreclosure based on the absence of an endorsement to [it].” But that argument flies in
    the face of well-established precedent requiring the party seeking foreclosure to present
    evidence that it owns and holds the note and mortgage in question in order to proceed
    with a foreclosure action. See Verizzo, 28 So. 3d at 978; Philogene v. ABN Amro
    Mortg. Group Inc., 948 So. 2d 45, 46 (Fla. 4th DCA 2006). When Ms. Gee denied that
    U.S. Bank had an interest in the Mortgage, ownership became an issue that U.S. Bank,
    as the plaintiff, was required to prove. See Lizio, 36 So. 3d at 929; Carapezza v. Pate,
    143 So. 2d 346, 347 (Fla. 3d DCA 1962). As U.S. Bank failed to offer any proof of
    American Home’s authority to assign the Mortgage, we conclude that it failed to establish its standing to bring the foreclosure action as a matter of law.3 See Servedio
    v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105, 1107 (Fla. 4th DCA 2010) (explaining that
    plaintiff may submit evidence of assignment from payee to plaintiff or affidavit of
    ownership to prove its status as holder of note); see also Khan v. Bank of Am., N.A., 58
    So. 3d 927, 928 (Fla. 5th DCA 2011) (holding that bank failed to establish it had
    standing to foreclose mortgage as matter of law where copy of note attached to
    amended complaint bore endorsement assigning note to another bank); Verizzo, 28 So.
    3d at 977 (finding genuine issue of fact as to whether bank owned and held note where
    record did not reflect assignment or endorsement of note to bank). Cf. Isaac v.
    Deutsche Bank Nat’l Trust Co., 36 Fla. L. Weekly D727 (Fla. 4th DCA Apr. 6, 2011)
    (holding that assignee of promissory note and mortgage adequately established its
    ownership of note and mortgage, as necessary to confer standing to bring foreclosure
    action, where assignee filed original note and mortgage, along with allonge payable to
    bearer, and affidavit from representative of successor in interest to previous assignee);
    Taylor v. Deutsche Bank Nat’l Trust Co., 44 So. 3d 618 (Fla. 5th DCA 2010) (holding
    that written assignment of promissory note and mortgage from nominee of original
    lender to bank was sufficient to confer upon bank authority to foreclose mortgage, even though nominee had no beneficial interest in note and note was not endorsed by
    original lender; mortgage gave nominee explicit power to enforce note by foreclosing
    note and nominee assigned that right to bank).
    Ms. Gee also asserts that the trial court improperly entered summary judgment
    on the reestablishment and reformation claims when these claims were not raised in
    U.S. Bank’s summary judgment motion. We agree. A motion for summary judgment
    must “state with particularity the grounds upon which it is based and the substantial
    matters of law to be argued . . . .” Fla. R. Civ. P. 1.510(c). The burden to conclusively
    establish the nonexistence of a disputed issue of material fact and entitlement to
    judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.
    2d 40, 43-44 (Fla. 1966); Bloch v. Berkshire Ins. Co., 585 So. 2d 1137, 1138 (Fla. 3d
    DCA 1991). The purpose of this rule is “to prevent ‘ambush’ by allowing the nonmoving
    party to be prepared for the issues that will be argued at the summary judgment
    hearing.” City of Cooper City v. Sunshine Wireless Co., 654 So. 2d 283, 284 (Fla. 4th
    DCA 1995). “It is reversible error to enter summary judgment on a ground not raised
    with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So. 2d 1091, 1093
    (Fla. 4th DCA 2006).

    Full Opinion at

    http://mattweidnerlaw.com/blog/wp-content/uploads/2011/09/gee.pdf

  16. tnharry, ? Our servicer violated our temporary restraining order and removed our case to federal court. I filed motion for a refund regarding our bond we had to post. The judge believes he does not have the authority to refund our bond since case was removed to federal court. I do not believe state court has the right to keep our money.

  17. tnharry — thanks for reply. I spoke with Mr. Barlow and he said we were in the case, though BAC/Encore were the ones sending notices and a local attorney handled the foreclosure on behalf of B of A. In the lawsuit, there are several named entities and BAC was one of them. But I thought Barlow’s case was for FCRA violations in Utah. Perhaps Barlow is in on the other case with Craig Smay in SLC and this is the case that is getting attention? It’s confusing.

  18. @linda – speak with a local atty about it. assuming you mean that recon did your foreclosure and it’s therefore in question. getting house back may be difficult since the new buyer may be able to claim bona fide purchaser status, but you may be able to turn this into money damages instead. good luck

  19. Does this ability to stay in the home in Utah still apply if one was evicted and B of A sold one’s home to a new buyer?

    Fannie Mae was in control at the time of the eviction.

    If “title reverts back to the homeowner,” then the current “owner” has to move out so we can move back in?

    We’d like to move back into our home or perhaps Barlow will just get us damages so we can find another home?

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

  21. Leave a Reply:

    QUESTION- MERS AND THE LENDER CLAIM MY LOAN WAS NEVER SOLD.

    RESPONSE – WHEN AN ENTITY ENGAGES IN A SALE OR TRANSFER OF ITS HELD TO MATURITY SECURITIES AND THE TRANSACTION REPRESENTS A MATERIAL CONTRADICTION FROM AN ENTITY STATED INTENTION TO HOD TO MATURITY THEN YOU MUST RE CLASSIFY ALL REMAINING HELD TO MATURITY SECURITIES TO THE AVAILABLE FOR SALE CATEGORY.

    YOUR REQUIRED TO IMPLEMENT THE RECLASSIFICATION IN THE REPORTING PERIOD IN WHICH THE SALE OR TRANSFER OCCURRED.

    THE CLAIM THE LOAN NEVER SOLD FAILS UNDER GAAP

    M.Soliman
    expert.witness@live.com

  22. interesting case. incredibly sloppy to continue to use Recon in the face of that statute prohibiting it. but as is often the case, the editorial comments don’t quite match up with the court’s order. the defense atty didn’t get it remanded – it was the court acting sua sponte. also, there are no statements in the order suggesting the deed is improper. let the cases speak for themselves without over-editorialising, particularly when the commentary is misleading

Leave a Reply

%d bloggers like this: