Attorneys Admit No Authority to Represent US Bank in Foreclosure

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EDITOR’S COMMENT: When I raised this issue some years back, most lawyers thought I was stretching for a technicality. But in fact the lack of authority to represent a forecloser in litigation lies at the core of the “plausible deniability” defense that the Banks raise when confronted with a lawsuit over a wrongful foreclosure.

The challenge should be in the form of a Motion for Proof of Authority to Represent. Whether they come up with the proof or not, you are in a better position. If they admit no authority the case is over, at least for the moment. If they show the proof, then the Bank can’t say they didn’t know what was going on.

The exchange below shows clearly that the foreclosure would have proceeded with a rubber stamp from the Judge had the borrower not raised defenses and challenged US Bank on its right to foreclose. Attorneys for the Banks are getting a little more careful now about what they say in court since there is a movement afoot to hold them responsible for fraudulent foreclosures. So in this exchange with the Court, the lawyer for the Bank admitted that he had no contact with US Bank nor did he represent the Bank.

BOMBSHELL- Your Honor, We Don’t Represent The Plaintiff….EXACTLY!
January 10th, 2012 | Author: Matthew D. Weidner, Esq.

http://mattweidnerlaw.com/blog/2012/01/bombshell-your-honor-we-dont-represent-the-plaintiff-exactly/

The following is a transcript from a hearing when I was sitting in a courtroom where a most extraordinary exchange occurred.

The Plaintiff in the case is, “US Bank”. “US Bank” is suing a homeowner, trying to throw them into the street. There is an attorney standing in the courtroom arguing on behalf of “US BANK”….the judge is upset because she’s been trying to figure out who to hold responsible when the Plaintiffs who are foreclosing are ignoring rules of the Florida Supreme Court, abusing homeowners and just generally making a real mess of things and the responses out of the Plaintiff sound like an Abbott and Costello Routine called, “Who’s On First”….

Who owns the note? We don’t own the note, “they” own the note. Who’s “they”? “They” who? The who that owns the note.

And then that’s when this exchange occurs:

“U.S. Bank is not our client. We have no communication with them on this loan.”

Whoa, say what?

“U.S. Bank is not our client. We have no communication with them on this loan.”

WHICH IS PRECISELY WHAT IS WRONG WITH THIS ENTIRE STINKING SYSTEM CALLED THE AMERICAN LEGAL, FINANCIAL AND FORECLOSURE MESS.

A bank, US BANK, is foreclosing, but they are not represented by an attorney. US Bank is the Wizard Behind The Curtain, somewhere there’s someone else calling the shots. Someone else deciding not to accept a modification. Someone else not accepting a short sale. Someone else pulling the strings. To which my friend Rand, quite correctly responds:

MR. PEACOCK: Your Honor, I’m a little bit
troubled because plaintiff’s counsel just said
that the plaintiff — she is not their client or
vice versa. That makes a real representation
issue. If they are not represented by her firm,
she cannot advocate on their behalf, and they
can’t continue this lawsuit.

This is precisely what is wrong with this country. Exactly what what is wrong with what is choking our court system. Exactly why our court system has such problems with what is happening.

Full transcript below:

March 11 CL
http://mattweidnerlaw.com/blog/wp-content/uploads/2012/01/March-11-CL.pdf

 

21 Responses

  1. Shelley A. Erickson, on January 13, 2012 at 4:04 pm said:
    can you send us the case # or a sample of your motion for proof of authority I cant find one anywhere
    dneilander@sbcglobal.net

  2. And, by the way — was a trustee to so-called REMIC pass-through trust.

  3. Oh — this is a goody. Know of an attorney who wins a dismissal of foreclosure. Brings counter-claims, court says no — because the foreclosure was dismissed — as the creditor was unidentified in the foreclosure. Thus, cannot bring counter- claims — creditor unknown.

  4. What code would a motion for authority to represent be in Ohio? I’m looking over the ORC and don’t see where it fits.

  5. Shelley, would you please contact me @ mortgagefrauddeadbeatclub “the @ symbol” gmail.com Thanks!!

  6. Can you fight foreclosure in Magistrates Court, or does it have to been done in Superior Court?

  7. I have sent a Motion for Proof of Authority to Represent. and So did my son. I have not heard back from Deutsche bank lawyers, my son has heard back from the BOA , RECONTRUST, & MERS, lawyers whom is Lane Powell law firm in Washington state, whom claims to have a reputable law firm, working for mortgage fraud, YEP for it not against it. The assistant attorney general from Oregon just quit his position to work in the Lane Powell firm, due to their position working for mortgage fraud. Interesting working for justice in mortgage fraud, when they are the represenatives for RECONTRUST AND MERS AND COUNTRYWIDE AND NOW ASKING TO BE JUST REPRESENTING COUNTRYWIDE. NOPE! AND NOPE! Trying to dig themselves out of the dirt hole they made representing MERS and RECONTRUST, foreclosing for MERS, Hello! Lane Powell firm sent my son a letter asking him to approve of the name change on the face of the Appeals brief. NOPE! OBJECTION! A friend I have met in Delaware, because of this mortgage corruption , tells me he and his wife were sent a notice of a name change for the lender being represented by the law firm attempting to steal his house. So I recommended what Neil Garfield had recommended on line, that I and my son did do, the above and sent a copy of the article to him. The debt collector is threatening to ask for fees for repairs to a house he has been evicted from and has deteriorated, cause of the fraud predator ousting him and his wife, leaving his home to the elements. What a crock of nasties! Now these unscrupulous parasites are threatening in court to cause the harmed homeowner to repair the damages caused by the predator parasites. What next? they are unbelievably corrupt, with no conscious at all. Kick us to the gutter and kick us again over and over again. Harmed homeowners are looking at taxes cause of short sales forced into by these predators, and bankruptcy caused by them and stolen homes, homelessness, and suicide and death by stress, ruined family life and living in unhealthy circumstances. Stressed to the max, sleepless nights, litigation cost or Pro Se Propria Persona litigation, scared to death you are not doing it right, or that the courts are corrupt. I pray for the Appeals courts to do the right thing, cause the district and state courts sure do not in most cases. A spiraling economy with very worried Americans. 99% of Seattle citizens are now sleepless at night! and throughout the entire U.S. Keep on fighting for justice and don’t give up an inch!

  8. @iwantmyntv

    “impossible to convey to a Trust that when you are not listed as an Originator”

    Successor servicer collectors might like to say they are the same thing as the “originator” (who became a servicer only when it was suposedly already sold years ago) but the sale can’t be originator directly to trust anyway – it has to be the Depositor selling it to the to trust and Depositor is the only one who can make the assignments. Depositor was last owner be for the trust.

  9. @joann – guess which member of the old boys securitization club gets a paid a hefty fee to manage the cash-flow.

    I worked in this industry and used to laugh when they told us to sell to the clients calming securitization is now different than the 80’s because we actually assign the assets to the pool. I can remember my supervisor in 2002 reminding me to be a team player. I simply asked, what happens to the assets once they have been pooled. Will they convey, and will the swaps be conveyed to the Trust as well for protection.

    When anything in writing resembles that the sub-servicer is required to make payments to the certificate holders if a loan default occurs – guess what.. it is exactly the same as a credit card pool and the only folks getting paid are the administrators of the trust.

    The sub-servicers are all gone as intended, with no jail time for anyone, and the Seller Bank is killing it before the unwind. Once Greece fails and is forced from the Euro the real shit will hit the fan over here. Bank of America will need another 60 billion form the FRC to open the doors, Citi will be chomping at the bit, and everyone will complain again the The New York Fed Board Member, James Dimon is getting preferential treatment.

    Sorry, for the run on. Ultimately, it is factually impossible to convey to a Trust that when you are not listed as an Originator in the Prospectus. Failure to omit such a material fact would open the tax issue and lawsuits. They merely stick it in and see what sticks. You have to remember, most folks do not fight the foreclosure, so it slips through.

  10. @M Soliman – of course they do it that way. Hell, the FDIC created it for them with the PPIP. I mean… why ruin a great decade of coordinated currency and swap unwind with something as pesky as tax. My approach, introduced last year was simple.

    No benefit to modify the loan, mark the asset to the aisle and raise reserves to full liquidation exposure. Jamie Dimon would shit his cornflakes.

    Expert Reformist – http://www.mynpv.com

  11. @iwantmynpv

    “the Seller does not convey, you have a mass fraud. The assets are still sitting on the balance sheet of the “Seller Bank” and they are hedged through default swaps and synthetics to unjustly enrich themselves.”

    It seems to me and I don’t know if there have been any cases that have said this- would like to know – but when the late date assignment is made to the trust by the servicer-collector(lender not) and this false-fraud asssignment “For Value Received” is now accepted by the trustee bank for the trust – against a ton of laws and rules (and the trustee bank for the trust does not show up in court to represent itself as beneficiay under perjury and instead lets the servicer collector do it as if he has authority to represent the trust when he does not and then the foreclosure proceeds in the name of the trust…..

    By accepting that assignment – first it means the trust never had ownership before that date even though the sale and transfer is completely impossible and second they are complicit in a sham transfer by a non owner when they accept it in the name of the trust. The trust investors may not care if they have received a write off but they ought to care if they never had ownership in the first place and maybe they don’t want this exposed. The acceptance of the fraud assignment by the trustee bank for the trust and the non appearance in court and the illegal foreclosure that follows….

    Have these trustee banks been brought to task by anyone and I mean not just for lack of ownership but for the fraud of accepting the bogus assignment? Chances are they barely pay attention or even know about it – just let the servicer collector get on with his dirty business as usual – no concern to them – no more ownership anyway (if ever and another reason they stay far away) but what if it was possible to put the fraud claims squarely on them (trustee banks) for “accepting” these fraud assignments – .just wondering.

  12. as to the challenge should be in the form of a Motion for Proof of Authority to Represent. Whether they come up with the proof or not, you are in a better position. If they admit no authority the case is over, at least for the moment. If they show the proof, then the Bank can’t say they didn’t know what was going on.

    Your challenging the full , backing and power of the US federal Government under the Economic Recovery and stimulus plan under the department of the Treasury. Now what emerges is a consitituional question.

    Can the US governement impose its will upon homeonwers for the benefit of the economy while avoiding emeinant domain or even a right under the land patenent act. A repurchase agreement, also known as a repo, RP, or sale and repurchase agreement, is the sale of securities together with an agreement for the seller to buy back the securities at a later date. The repurchase price should be greater than the original sale price, the difference effectively representing interest, sometimes called the repo rate. The party that originally buys the securities effectively acts as a lender. The original seller is effectively acting as a borrower, using their security as collateral for a secured cash loan at a fixed rate of interest.

    What I testify to is fact and thatis your seeing a repo in every foreclosure for mark to market purposes. This is equivalent to experieincing a cash transaction combined with a forward contract.

    In the cash transaction you have the transfer of money to the borrower in exchange for legal transfer of the security to the lender, while the forward contract ensures repayment of the loan to the lender and return of the collateral of the borrower. This is the basis in assets subject to the difference between the forward price and the spot price.

    It is effectively the interest on the loan while the settlement date of the forward contract is the maturity date of the loan. The nature of the contracts though are eneforcable as arm length transactions and the foreclosure is a highly manipulative liquidation.

    It does not stand the test of an open market transaction…unless the dent collector is acting alone and hoding the sole right of the beneficiary claims.

    For more info

    expert.witness@live.com
    M.Soliman

  13. This truly should not even be a question before the Court. Every prospectus registered with the SEC, REMIC and Trust law requires the two to be conveyed simultaneously. This is done to protect certificate holders who purchased asset backed securities, not cash flow which is currently the case. Trusts do not buy derivatives, the SPV which pools the loans buys them, along with the necessary credit enhancement to get the “A” Stamp.

    If the PSA requires all collateral documents to be assigned to the Trustee by the cut-off date, or 90 days thereafter and the Seller does not convey, you have a mass fraud. The assets are still sitting on the balance sheet of the “Seller Bank” and they are hedged through default swaps and synthetics to unjustly enrich themselves.

    We need to follow the cash-flow, it tells the true story. Property Owners in foreclosure and otherwise must now band together and demand an entire investigation for the most massive fraud since the introduction of the fractional gold standard. It may also explain who shot Kennedy!

  14. I have been fighting the fight since June 2009 with numerous lenders.
    Here is a thought.
    I just got off the phone with Aurora LS. I made a phone pmt on 12/20 to them and asked for mailing address to mail my pmts as I am in active CH 11. The rep gave me PO Box 173930,
    Denver. I mailed my Jan pmt on Dec 20. It came back. I called, and the discovered my Dec pmt was not credited till 1/6! Need I say WTF?
    AFTER 20 min on the phone, she finally found another PO Box. Rep said they could not put in another “forward” with the PO. I cry bullshit…..you can put a forward in anytime.
    .
    They are purposefully attempting to get two payments 60 days down. Then they can take the loan out of the trust or SPV it is in. Dirty bastards.
    I think we need to start a NATIONAL harass your SERVICER DAY each week . Tell these reps that they are disgusting for getting a paycheck from crooks.

  15. Going through HELL…Keep GOING…!!!

    Light,Love,and Power upon the People and upon RIGHT vs. “Might”…

    http://www.youtube.com/watch?v=KXCIgYtnrj8&feature=related

    “Harder They Come”/Jimmy Cliff…didn’t see the movie;the point is the Proud and Oppressive…do fall…it ain’t easy to Love mine “enemies”;I know well the urge to give’em what for and more…

    “Forgive them they know not what they do…”a waaay stretch for me;I keep getting an image of Yeshua/Christ overturning tables on the money-lenders…for me it all comes to USURY being the single most dangerous force on Earth…I’m not inclined to think these guys are innocent of knowing the malice they eat sleep and breathe but” the System” has brain-washed generations….if we have to have money and banks/lending institutions(I dunno-do you wanna be committed to an institution???!!! …anyhow if we’re forced/choose to do those exchanges,Value for Value,no adhesion contracts and total honest disclosure would seem the first requisite in Law…just sayin’…as a mere Peasant wait I was a Ryot now Imma Peasant…check it out”ryot” food for thought…I look to the Dawning of the day where we transcend this and hear”ALL debts are hereby Forgiven…”We need remedy ewe need a world wide Jubilee of total forgiveness…a clean slate…could mankind withstand such??
    No I’m NOT smoking any herbs!

    That too seems quite involved in this meltdown…I refer to the other strains of HEMP;the sorts that offer food and Medicine and material for cars,housing,clothing….I have been ignoring my Elder too long….

    “I am no Man!!!”

    The letter of the law kills but the SPIRIT gives Life…indeed….
    TRUTH in lending and Justice for all the Earth…let the People go,let the 2nd discovery of Fire spread across the Earth:Brotherly love…
    It is now Time.

  16. In all honestly I AM NOT happy with this judge OR EITHER ATTORNEY in reading this transcript. When that issue was pointed out by the defense attorney, that judge should have ORDERED the purported bank attorney to explain why it should not immediately be dismissed, PERIOD. The judge and BOTH attorneys should all have bar and JQC complaints filed against them. The judge for failure to dismiss the case. The bank attorney for claiming to be there on behalf of the bank yet making such a statement, and the defense attorney for not DEMANDING it be dismissed BECAUSE of what the purported bank attorney said, and thereby failure to properly represent HIS client.

  17. This fascinates me bec I am in Pinellas. I like the judge’s thinking over all.

    I wrote WFargo 3 QWRs asking them to show they were authorized to represent the true creditor so that we could negotiate HAMP etc. I was current on mortgage. They ofcourse refused.

    I would have accepted a letter from WF saying hey we are authorized servicer via Fannie Mae for trust xyz. Is that too much to ask????

    you can not negotiate, modify, hampify, harpify or hafafy a loan with somebody who is not authorized to do so.

    So then homeowner just stops paying and a year later or so they go to court with lawyer who is not even authorized by the true creditor.

    I would hope that the defense lawyer would point this out to the judge.

    It is so blantantly obviously the banks are wasting the courts time.

    Miffed.

  18. “Motion for Proof of Authority to Represent.”

    At what point in case should you make this challenge?

  19. It is clear from this transcript that one of the gses is lurking in the background.

    The shell game to divert attention as to the identity of the “plaintiff” is part and parcel of the “GSE Business Model” which has been called by every creditable scholar “fatally flawed”.

    If the bank is not the plaintiiff what are they doing in court? A simple matter for ther court.

  20. .
    Great post, thanks!

    However, what is the next step if the motion is denied, and the judge makes a judicial determination that the impostor is not an impostor, and then forever after the impostor states that the matter has “been dealt with”.
    .

  21. From the Boston Globe, Real Estate

    Supreme Judicial Court concerned with toxic foreclosure fallout

    Attorney Richard D. Vetstein reports on another court case about foreclosure paperwork problems.

    The Supreme Judicial Court has just issued an unusual order in the very important Eaton v. Federal National Mortgage Association case, indicating its deep concern over whether an adverse ruling against foreclosing lenders will have a disastrous impact on foreclosure titles and, if so, whether its ruling should be applied prospectively rather than retroactively. The Court is seeking supplemental briefing and friend-of-the-court briefs on these decisive issues. A final decision is expected in February or March.
    As outlined in my prior post on the case, the Court is considering the controversial question of whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. If the SJC rules against lenders, it could render the vast majority of securitized mortgage foreclosures defective, thereby creating mass chaos in the Massachusetts land recording and title community. If you thought U.S. Bank v. Ibanez was bad, Eaton v. FNMA could be Apocalypse Now.

    The court is requesting supplemental briefing on whether requiring a unity of the mortgage and the underlying promissory note, in order for there to be a valid foreclosure, would cloud any title that has a foreclosure in the chain of title, regardless of how long ago the foreclosure occurred, and if so, what legal or practical measures exist that might limit the consequences of such a requirement. The court is also concerned that if it were to hold that unity of the mortgage and note is required under existing law, whether the court’s holding should be applied prospectively only.
    Reading into this order, perhaps a majority of the justices are already leaning towards ruling against the lenders and want to limit the potentially disastrous effect it could have on existing titles and foreclosures, pending and future. Interestingly, lenders in the U.S. Bank v. Ibanez case asked the SJC to apply its ruling prospectively, but it declined, thereby leaving hundreds to thousands of property owners and title insurers to clean up toxic foreclosure titles.

    In my opinion, an adverse ruling against lenders in Eaton could be the apocalyptic scenario, rendering open to challenge any title with a previous foreclosure in it and inserting a fatal wedge into the current securitized mortgage system. Hopefully this time around the Court is more sensitive to how its ruling will impact the real estate community. It will be interesting to see how this case continues to develop. We will continue to monitor it.

    COMMENT: yes, it COULD BE Armageddon for the banksters!

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