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FROM THE BRIEFS:
“MERS Cannot be and in fact is not the beneficiary of the
DOT. There is no named beneficiary in the SOT and ANY and ALL beneficiaries
must be named in the SOT. Therefore the SOT (and consequently the NTS) is
seriously defective and void as an instrument to be implemented to supplant
Appellant from his property.”
“Countrywide was an active conspirator as it allowed BondCorp to utilize its
technological assets, its underwriting resources, account numbering system and
other aids and benefits to entrap Appellant into a loan that was damaging, stated
the wrong parties and took illegal and undisclosed fees.”
EDITOR’S NOTE: The 9th Circuit is inching closer and closer to an outright statement that the foreclosures were fraudulent and illegal. And for the first time it is taking issue with the appointment by Bank of America of ReContrust as “trustee” under the deed of trust. Clearly the replacement of the court system with a qualified trustee was intended to expedite due process, not eliminate it. Every time a substitution of trustee is executed it raises the high probability that the would-be forecloser is appointing itself as the trustee in order to escape the reality that it is not a creditor or proper holder of the loan.
CARNEY vs. BANK OF AMERICA | 9th Circuit Ct. Appeals “It is clear that MERS and ReconTrust act to usurp Appellant’s property without lawful authority”
“MERS, something of a phantom entity and ReconTrust, subsidiary of BAC and not an independent entity, acting in BAC/BANA/Countrywide’s interests, now are trying to come in and clean up the mess made by the fraudulent DOT and Note by BondCorp in a conspiracy with Countrywide, not because they are any real beneficiary and have or will experience any real loss, but rather to gain substantial fees from the SARM 2005-19XS Trust for foreclosing on Appellant’s property.
It is truly curious as to why the proper parties in this matter are not named and Appellant posits that other, unrelated legal actions are likely a reason. That said, Appellant has shown good cause why a trustee’s sale should not proceed so that the status quo is maintained while he presses his case in the District Court.”
No. 11-56421
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________________
MICHAEL M. CARNEY
Plaintiff
v.
BANK OF AMERICA CORP., ET AL.
Defendants-Appellees
EXCERPT:
III. Merits Of Case Are Compelling And Clear And Likely to Be Successful.
It is clear that MERS and ReconTrust act to usurp Appellant’s property
without lawful authority. MERS Cannot be and in fact is not the beneficiary of the
DOT. There is no named beneficiary in the SOT and ANY and ALL beneficiaries
must be named in the SOT. Therefore the SOT (and consequently the NTS) is
seriously defective and void as an instrument to be implemented to supplant
Appellant from his property.
Defendants act hurriedly and without authority not because they are
uninformed or have made an excusable mistake, but rather because they wish to
elude the central facts and claims against them, hold the wrongful trustee’s sale
and gain title and possession of Appellant’s property to gain a superior position.
The facts are that BondCorp, who has yet to respond to any complaint or
motion related to this case, was in fact named as “Grantee” when it never proffered
any funds and was used by Countrywide to both gain secret, concealed fees and
allow Countrywide to further gain based on intentional concealments, lies,
misrepresentations and related actions.
As has been stated, the core of this matter is the claims against BondCorp
acting at the behest of Countrywide. If BondCorp was found to have acted
fraudulently, as asserted and supported by facts, every other claim and defense is
affected accordingly.
What this court is presented with is a defendant in BondCorp who has
chosen to remain silent in the face of substantial allegations and facts against it,
and a foreclosing entity defendant (MERS) that is acting without authority and in
clear violation of the law.
Meanwhile, Appellant has had to defend and counter all such actions and to
drag out all the facts, all while in the face of losing his family home and efforts to
understand what options would be available to him to avert such a catastrophic
result.
Up until August/September of 2010, Appellant was resigned to the fact that
his misfortune would likely lead to the loss of his family home. It wasn’t until he
received and further researched the information regarding the assignment/transfer
of his DOT and Note to US BANK (June 2010) that was entirely first time news to
him, that he began to understand and realize the fraud, malfeasance and
misfeasance enacted upon him and then which drove him to seek relief and
damages for.
The facts of the case as pertains to BondCorp are clear and undisputed.
BondCorp was not the “lender”. It only acted as such to attain secret fees.
BondCorp utilized illegal, fraudulent means to sell and convince Appellant that the
loan BondCorp wished to engage him in was in his best interests, when it was not
and that all the facts represented to him regarding the alleged loan were true, when
they were not and the real facts were concealed from him and that he was
defrauded of tens of thousands of dollars in the process.
Countrywide was an active conspirator as it allowed BondCorp to utilize its
technological assets, its underwriting resources, account numbering system and
other aids and benefits to entrap Appellant into a loan that was damaging, stated
the wrong parties and took illegal and undisclosed fees.
MERS, something of a phantom entity and ReconTrust, subsidiary of BAC
and not an independent entity, acting in BAC/BANA/Countrywide’s interests, now
are trying to come in and clean up the mess made by the fraudulent DOT and Note
by BondCorp in a conspiracy with Countrywide, not because they are any real
beneficiary and have or will experience any real loss, but rather to gain substantial
fees from the SARM 2005-19XS Trust for foreclosing on Appellant’s property.
It is truly curious as to why the proper parties in this matter are not named
and Appellant posits that other, unrelated legal actions are likely a reason. That
said, Appellant has shown good cause why a trustee’s sale should not proceed so
that the status quo is maintained while he presses his case in the District Court
- CARNEY v. BANK OF AMERICA | California Dist. Court “TRO, MERS Interest Discrepancies, ReconTrust may NOT be the Proper Trustee w/ Legal Authority” UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION…
- BAKRI v MERS, BONY, TROTT & TROTT PC | Michigan Appeals Court REVERSED “MERS did not have the authority to foreclose by advertisement, No interest in Note” S T A T E O F M I C…
- CERVANTES RE 9th CIRCUIT OPINION CONTAINS ERROR ON MERS’ LEGAL TITLE Via: LIVING LIES DISTINCTION BETWEEN LENDER AND BENEFICIARY ROOT OF…
- BOMBSHELL – JUDGE ORDERS INJUNCTION STOPPING ALL FORECLOSURE PROCEEDINGS BY BANK OF AMERICA; RECONTRUST; HOME LOAN SERVICING; MERS ET AL Via: 4ClosureFraud (St. George, UT) June 5, 2010 – A…
- U.S. Bank Natl. Assn. v Mayala | NY Appeals Court 2nd Jud. Dept. Affirms, Consolidated Case “That certain mortgages held by MERS on the subject real property are invalid in their entirety” Decided on August 23, 2011 SUPREME COURT OF THE STATE…
This post was written by:
dinsfla – who has written 2743 posts on FORECLOSURE FRAUD | by DinSFLA.
CONTROL FRAUD | ‘If you don’t look; you don’t find, Wherever you look; you will find’ -William Black
2 Responses to “CARNEY vs. BANK OF AMERICA | 9th Circuit Ct. Appeals “It is clear that MERS and ReconTrust act to usurp Appellant’s property without lawful authority’
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Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud | Tagged: 9TH CIRCUIT, appeals court, assignment of mortgage, Bank of America, bankruptcy, BondCorp, borrower, CALIFORNIA, countrywide, disclosure, foreclosure, foreclosure defense, foreclosure fraud, foreclosure offense, foreclosures, fraud, interest, LOAN MODIFICATION, MERS, MERS ReconTrust, Michael Carney, modification, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., quiet title, ReconTrust, rescission, RESPA, securitization, TILA audit, trustee, WEISBAND |
@Rick
Would like to know that too.
Just my trying to understand this stuff. Thinking they don’t do it because they can’t do it or won’t do it because they never transfered mortgages to trusts ( no m in the mbs) and the strategy is to ask for it using UCC § 9-607(b) along with other . “Lender” servicer who does not have a security interest is trying to make an assignment directly from A to D which cannot be done for all kinds of strict trust agreement rules, trust laws, taxation lawa, remic- bankruptcy remote – fasb 40, state statutes ect. It’s also fraud for “lender” servicer to pretend he has a beneficial interest he can sell now ” For Value Received” or transfer now to the trust at all. Two or three required “true sales” that purportedly already occurred are ignored. Party with “secured interest” ie trustee for trust has to record the “security interest” and the affadavit under penalty of perjury. Show that A, B, C and D occurred in order to secure its interest and party who can enforce the point of sale and receive payments and satisfy a lien. Just my understanding such as it is. Also thinking this affects the NOD too. There is no default to original “lender” turned servicer (sold without recourse) and not to the successor now also only servicer because the mortgage was sold years ago to the trust. If not actually transferred to trust as represented and warrented to investors and sec ect. – my question is where did the homeowwner payments go? Show the servicer payments to the trust. Show the amount due the trust today. Show if the trust is even operating anymore. Show if the mortgage is still in the trust if it ever was and if not…..ect. But no foreclosure unless ABCD as per Ucc 9-607(b) plus all other ect.
Previous Livinglies post is really clear discussion of UCC 3 and 9 including UCC § 9-607(b) : FROM A LETTER BY RON RYAN, ESQ., TUCSON AZ TO ATTORNEY GENERAL HORNE
Has anyone seen any case where a bank has used a UCC § 9-607(b) affidavit in lieu of a recorded assignment? I am unaware of any here in Oregon.
@ Pat
The link to the Order granting Stay:
http://stopforeclosurefraud.com/wp-content/uploads/2011/11/Order-Granting-Stay.pdf
The clear trend even in appellate decisions is for courts to grant early litigation stays for provable violations of procedure or substantive law and for violations of written promises to forebare or act where evidence is clear a homeowner was taken advantage of in either arena. Losing a TRO is not the end….you still have a right to a OSC re preliminary restraining order about 21 days later under CCP sec. 525, et seq., in Calif. Problem is that even if granted, getting a bond is virtually impossible. Best to file BK and file adversary, at least your stay on foreclosure is guaranteed [for a while, anyway].
Reach out to us at Consurmer Rights Defenders where attorneys and their staff are here to help you in both venues. 818.453.3585. Ask for Sara.
The sudden change of heart with Federal Judges can be easily explained by looking at the current holdings of unmarketable MBS held by Federal Pensions as is reported on the Federal Reserve’s website at being 0.00.
Anyone can look at these reports and compare them with judges’ behaviours in cases they decide around that time and see an obvious connection. The evidence is clear, THE JUDICIARY HAS BEEN TAINTED BY UNDUE INFLUENCE AND CORRUPTION ORIGINATING FROM THEIR PENSIONS.
Enranged, we all want sssoooooooooooooooooooooooo much to see justice done. This order is one more step toward justice. I believe the judges could have done more, if they were asked to. They did what they were asked to do. Their oppionon is great hope to us all in the ninth circit jurisdiction. I and my sons is in the ninth circuit Appeals cour, mine is about to go into be discussed, and my sons I am not sure of it was never handed back to him with a case schedule and was denied because he did not anwer or submit anything until after the dismissal notice cause he was not given his packet and Pro Se info. He was told he needed to file his Appeal as attorneys are required to do, but he is not an attorney, and is Pro Se. At the notice he sent in a notice to them he never submitted anything new because he had not recieved instructions like me his mother and was waiting for the instructions and case schedule. He submitted his brief with the notice. And has not heard anything since. He has had no correspondence or answers to any of his briefs, by the defendants attorneys either for a good six months. It is about time he calles them to see if they have abanded the case as defendants. No answer to the notice of appeal, nor any notices we have given them for over 6 months. I noted this in the last brief to the court, when adding a urgent notice of the Bevildaqua case.
I dont understand why this homeowner did not ask for his case to be granted in Appeals court, and instead asked to have it stayed and fight it out in District court. Looks like it could have been decided in the Appeals court and done, unless the defendants took it to the U. S. Supreme court.
When the truth comes out, then there will not be money to be made for the people that try to “cash in” the foreclosures game. I am not shocked that Pat or anyone would not argue about this ruling or any other one. Just think about it, if you are getting paid from people that are in this mess and something comes that would bust the door wide open why you be happy.
There would be no need for Neil’s site or any other site. This is mortgage problem is paying a lot of people’s bills right now on both sides of the fence. Only person bills that are not getting paid are the people in the middle the homeowners. The time is getting near when this will fade into the sunset and people will have to find another way to sell their services without paying for a website or advertisement. Meaning people are using this blog to promote there business for free. This blog should be about free information, and if the information is useful, use it learn it. Then since you know the information if you get an attorney let him/her know you understand so lets fight this together.
I guess only in a perfect world would this work.Instead everyone wants to play the blame game say its your fault you can not pay your bills not the banks. Then on the other side say but if you give me your email and all your information I have a plan that can get you out the problem you have for only $1000 and sum change.
Pat
It is writing on the wall. Cannot get away with fraud forever. Eventually, all surfaces.
As to Countrywide, thought they were required to do substantial modification by Attorney General settlement quite some time ago.
Nothing was done. Violation of the settlement. And, challenges will go on and on. But, maybe, just maybe, courts are finally get the hang of it.
From Veal v. American Home Mortgage Servicing – US Bankruptcy Appellate Panel of the 9th Circuit – June 10, 2011:
The “transfer” concept is not only bound up in the enforcement of the maker’s obligation to pay the debt evidenced by the note, but also in the ownership of those rights. Put another way, one can be an owner of a note without being a “person entitled to enforce.” This distinction may not be an easy one to draw, but it is one the UCC clearly embraces. While in many cases the owner of a note and the person entitled to enforce it are one and the same, this is not always the case, and those cases are precisely the cases in which Civil Rule 17 would require joinder of the real party in interest.
The converse is also true: one can be a “person entitled to enforce” without having any ownership interest in the negotiable instrument, such as when a thief swipes and absconds with a bearer instrument. See Comment 1 to UCC § 3-301
A bit more re assignments in non judicial from UCC editorial (also discusses “secured party” steps to declare a default has occurred):
On page 9 the PEB Draft Report discusses the further steps that must be taken in non-judicial states:
“In some states, a party without a recorded interest in a mortgage may not enforce the mortgage non-judicially. In such states, even though the buyer of a mortgage note (or a creditor to whom a security interest in the note has been granted to secure an obligation) automatically obtains corresponding rights in the mortgage, this may be insufficient as a matter of applicable real estate law to enable that buyer or secured creditor to enforce the mortgage upon default of the maker if the buyer or secured creditor does not have a recordable assignment. The buyer or other secured creditor may, of course, attempt to obtain such a recordable assignment from the seller or debtor at the time it seeks to enforce the mortgage, but such an attempt may be unsuccessful.”
“Article 9 of the UCC provides such a buyer or secured creditor a mechanism by which it can record its interest in the realty records in order to conduct a non-judicial foreclosure. UCC Section 9-607(b) provides that “if necessary to enable a secured party [including the buyer of a mortgage note] to exercise…the right of [its transferor] to enforce a mortgage non-judicially,” the secured party may record in the office in which the mortgage is recorded (i)a copy of the security agreement transferring an interest in the note to the secured party and (ii)the secured party’s sworn affidavit in recordable form stating that default has occurred and that the secured party is entitled to enforce the mortgage non judicially.”
Money Talks look at the Banksters Stock going down the drain.
http://quotes.wsj.com/BAC
NEVER AGAIN
Admittedly off-topic here, but this is somewhat important to those who love to read: There’s a “new book in town” on the financial crisis, “Vulture’s Picnic,” by Greg Palast. I just ordered a Kindle copy for some Thanksgiving reading.
http://www.nakedcapitalism.com/2011/11/greg-palast-this-is-it-folks.html
April 12, 2011in California, Eleazar Salazar, Debtor, U.S. Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB2:
The outdated distinction between mortgages and deeds of trust is especially moribund in the context of borrower’s rights in the nonjudicial foreclosure context…
…Civil Code section 2932.5 must therefore be applied to deeds of trust to ensure trustors are provided the same protection as mortgagors under California law. The borrower concern addressed by Civil Code section 2932.5-that it be able to identify the assignee of its loan-is more exigent, not less, than it was during the Great Depression, when Bank of Italy was decided. Problems with the residential mortgage foreclosure process have been widely chronicled.
Cirilo E. Cruz, Plaintiff, v. Aurora Loan Services LLC et al ., August 11, 2011:
For the same reasons as a mortgagee must record its interest before it forecloses, so must a beneficiary of a deed of trust under § 2923.5. The ministerial role of the trustee does not justify any distinction between the two instruments for purposes of § 2932.5 because the trustee as agent simply acts at the direction of the beneficiary.
Cirilo E. Cruz, Plaintiff, v. Aurora Loan Services LLC et al., August 11, 2011, the California judge said:
This reasoning of Stockwell is now inapposite. Under Monterey, 49 Cal. 3d at 461, a deed of trust is no longer a conveyance of actual title to the Property, but merely a lien. The borrower now retains actual title to the property. Bank of Italy Nat. Trust Sav. Assn. v. Bentley, 217 Cal. 644, 656 (1933). That this title theory is discredited by the Supreme Court is recognized by the Ninth Circuit. Olympic Federal Sav. LoanAsso. v. Regan, 648 F.2d 1218, 1221 (9th Cir. 1981) (mortgages and deeds of trust are “legally identical,” so that the borrower retains actual title to the property that the Internal Revenue Service can redeem despite the presence of a junior deed of trust). See also Aviel v. Ng, 161 Cal. App. 4th 809, 816 (2008) (to interpret a subordination clause in a lease, the terms mortgages and deeds of trust were treated as synonymous based upon Bank of Italy, 217 Cal. at 656).
Frequently Asked Questions, Sometimes Legal, Sometimes Not
This is a training document used by MERS to train employees of Loan Servicer on how to deal with Title Companies that question the use of MERS on the Deed of Trust or Mortgage. It specifically discusses the exact situation described in the Carney case above dealing with a Broker and MERS as well as other interesting items. What is interesting is the subsequent iterations of this document completely remove any discussion regarding the Pay Off recordings in the name of MERS. I will post the entire training course as soon as I get a chance.
Judge Sargis has ruled in line with Judge Mann in a few other BK cases I have seen in CA in regards to 2932.5.
CA is the Wild Wild West.
Pat, healthy skepticism is good. On the issue of 2932.5 as pertains to DOT’s and Mortgages, I invite you to read the following from a Fed BK Judge in Cal on this issue. Judge Mann very clearly and concisely lays out why 2932.5 applies to DOT’s. Read it here, @ III. C. 2. :
http://stopforeclosurefraud.com/2011/08/22/in-re-cruz-ca-bk-court-2932-5-foreclosure-of-the-property-was-wrongful-due-to-mers-unauthorized-substitution-of-trustee/
I will allow that CA appeals/supreme court may differ, but this case is in the 9th circuit, where they take a different (and more correct) view of the statutes and supporting law.
I suggest you read the entire opinion on 2932.5 by Judge and also then the OLYMPIC decision (9th) that is cited.
That its a BK Judge doesn’t matter. The opinion is very strong.
Haha Pulatie. HAHAHAHAHAHAH!
E Tolle,
Go rest your neck.
There are significant issues with the appeal that could be raised in defense. A couple of them….
2932.5 does not apply to Deed of Trusts. To rule that it does would mean overturning a century of CA law. So the assignment for foreclosure purposes would not be valid for the plaintiff.
The argument that the “funding lender” was not the true lender can be countered by using TILA statutes that specifically address lenders and warehouse lines of credit.
The SOT argument is good for the borrower in that MERS did not identify the Trust.
I plan on fully reviewing the arguments tomorrow. Off right now to consult on a case involving 41 loans. The expert witness and I are going over all findings.
@ Pat, hey pal, what’s the matter, has your little rubber forensics dinghy sprung a leak out in the middle of Lake B of A?
You and your banker pals are soon going to realize that it’s not silk in those cheap ties you’re wearing….it’s jute, and chafing is going to be the least of your problems.
$1000 says that lfi analytics jumps from the dark side to being the borrower’s best friend as soon as rulings start slapping the banks….
I want soooooo much want to believe that justice will soon be rendered in foreclosure cases, systematically and methodically. Once case at a time, I think we’ll get there but I still expect set backs along the way.
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL M. CARNEY,
Plaintiff – Appellant,
v.
BANK OF AMERICA CORPORATION,
a Delaware corporation; et al.,
Defendants – Appellees.
No. 11-56421
D.C. No. 8:11-cv-00571-CJCMLG
Central District of California,
Santa Ana
ORDER
Before: LEAVY and TROTT, Circuit Judges.
Appellant’s emergency motion for a stay of the foreclosure sale pending
appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987); Cal.
Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849-50 (9th Cir. 2009) (order).
Appellees’ motion to dismiss this appeal as moot is denied. See SEC v.
Mount Vernon Mem’l Park, 664 F.2d 1358, 1361 (9th Cir. 1982) (district court’s
entry of final judgment renders pending appeal from preliminary injunction moot)
(emphasis added).
The answering brief is due on December 12, 2011; the optional reply brief is
due within 14 days after service of the answering brief.
FILED
NOV 14 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I’ve got the 1 page Order in PDF format if anyone needs it
Yes, this is great. BAC/BANA/Countrywide is also my foe. In my state, there is case law that a trustee owes equal fiduciary duty to both trustor (i.e., me) and trustee. Nothing about Recontrust’s actions in my case was based on an equal fiduciary to me. I can’t wait to see these parties get their comeuppance.
This is not a ruling by the 9th. It is only the pleading in a request for an Emergency TRO to stop a foreclosure sale.
I do not see anywhere a reply from the 9th Circuit. If someone can direct me to the Stay, then please do so. If no Stay has been issued, then this pleading means nothing.
This is excellent … ESPECIALLY as it’s with the 9th circuit … sure to be challenged and passed up the ladder … with the 9th whenever you get a reasonable ruling it’s a “blind squirrel and acorn” event..
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