OCC REVIEW: Sham, Shame or Opportunity for Social Justice?

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EDITOR’S COMMENT: Let’s start by saying Field is right, as far as it goes. The OCC review process is under the thumb of the Banks, and the cities and states are being extorted into “settlement” agreements that provide no help to homeowners and only a little help to the state budget shortfalls.

But nothing can change the fact that title is corrupted by foreclosure deeds that refer to sales that never happened by non-creditors submitting credit bids, and nothing will remove the fact that the default that was declared was at best declared on the wrong figures and at worst (and the most usual) on a loan that was either already paid off completely or was not in default at all.

But I wouldn’t give up on the OCC Review process at all. It sets in motion  an administrative process that is hard to stop. You just need to understand that the rules in an administrative procedure are different than the rules of court — even if you end up in court getting an order that ratifies or vacates the decision of the agency.

With the OCC consent decrees and the various promises contained in the decrees, consent orders, and settlements, together with the investigations that have been performed by both public law enforcement and private litigants, there is ample ground to challenge the banks and servicers for violations that might be otherwise overlooked by the OCC — but for the fact that you brought it up.

In my opinion that OCC Review process should be pursued vigorously and it might lead to remedies that are still remote in civil courts. It’s true that the pattern of the banks is to promise them anything and then do nothing — but that only works if the people do nothing. That is where readers like you, members of the Occupy movement and other nascent movements across the country come into play.

The bottom line is that the worst WILL happen — but only if you let it. Get yourself an attorney, get the analytical reports like our COMBO that will arm you with data that contradicts the assertions made in court by the banks and their attorneys, and file every administrative complaint that applies for forged notaries, for violation of OCC orders, for violation of statute and even common law.

This isn’t like 4 years ago when all that we were saying here was considered theory at best and the ravings of a conspiracy theorist at worst. Now everything we said — from mortgage defects, lack of perfection of the lien, slander of title, pretender lenders submitting credit bid at rigged auctions, and evictions by non-creditors are all well known along with a long list of other violations.

Pick the violations that apply to your case, and then go after the so called banks and servicers who claim to have rights over your loan. In the end, all you need is an order for a Judge or an administrative hearing officer that commands them to prove their proffers — to put up or shut up — for them to fold their tents and leave you in your home or allowing you to recover your home.

Abigail Field: Insider Says Promontory’s OCC Foreclosure Reviews for Wells are Frauds. Brought to You by HUD Sec. Donovan

By Abigail Caplovitz Field, a freelance writer and attorney who blogs at Reality Check

U.S. Housing Secretary Shaun Donovan has embarrassed himself yet again. This time, though, he’s gone in for total humiliation. See, he praised the bank-run Office of the Comptroller of the Currency’s (OCC) foreclosure reviews as an important part of the social justice delivered by the mortgage “settlement“. But thanks to an insider working on an OCC review, we know that process is a sham. Worse, the insider’s story shows that enforcement of the settlement is likely to be similar, which is to say, meaningless. Doesn’t matter how pretty the new servicing standards are if the bankers don’t have to follow them.

Let’s start with Donovan’s sales pitch for the OCC reviews:

For families who suffered much deeper harmwho may have been improperly foreclosed on and lost their homes and could therefore be owed hundreds of thousands of dollars in damages — the settlement preserves their ability to get justice in two key ways.

First, it recognizes that the federal banking regulators have established a process through which these families can receive help by requesting a review of their file. [ACF: That’s the OCC process] If a borrower can document that they were improperly foreclosed on, they can receive every cent of the compensation they are entitled to through that process.

Second, the agreement preserves the right of homeowners to take their servicer to court. Indeed, if banks or other financial institutions broke the law or treated the families they served unfairly, they should pay the price — and with this settlement they will. [bold throughout mine]

Now, the justice of the settlement has been debunked many times over. And David Dayen debunks Donovan’s OCC pitch here. What’s important is that Bank Housing Secretary Donovan wants you to believe the Wells Fargo OCC process is a meaningful contribution to holding bankers accountable and compensating victims.

Wells Fargo’s Fraudulent OCC ‘Independent’ Foreclosure Reviews

Right around the time our Bank Housing Secretary was pitching the OCC reviews as social justice, a person temping for Promontory Compliance Solutions LLC (an affiliate of Promontory Financial Group) on the Wells Fargo OCC “independent” review project was telling Mandelman what a complete charade it was. The insider’s description exposes the reviews as the fraud on the public that they are.

The full revelations of the temp hired, trained and supervised by Promontory Compliance Solutions, working on the Wells Fargo’s OCC independent foreclosure reviews project, are available as a Mandelman blog post and a Mandelman Podcast. But here’s a few highlights to show how rigged the process is:

“I have found errors that should be moved up through the ranks, but am told “quit digging so deep”…”put your shovel away”…Focus on the questions “in scope”… The review forms are set up so no harm could ever be found. It’s equivalent of an attorney presenting his case to a judge with just 20% of the evidence.”

and

“The foreclosed victims don’t realize if they do not provide specific dates on the intake forms… their complaints are considered “general comments” out of scope.

The kicker? The forms don’t tell people their information will be ignored if the complaints are not dated.

Mandelman reports that the insider

“also says that the questions on Promontory’s form are worded in such a way that it makes it very difficult to ever find fault. For example, by using compound questions, he is often told to answer “no,” when the first part of the question would be a “yes.””

A last, flashing neon sign announcing the reviews will protect banks and do no justice is who has been hired to do the reviews. See, here’s the insider that’s willing to talk, and it’s probably why he’s willing to talk:

I have 15 years industry experience in all facets of the mortgage & title industry, and just needed a job at the moment.

But this is who he’s working with and for:

some of the people brought in with me do not know the difference between a truth in lending statement, and a note. It’s a shame, these are your reviewers!!! The supervisors don’t want any trouble…they are mostly temps too, just trying to get a promotion to full time.

Sounds like no bailed-out bank will be held accountable and no homeowner compensated. Nice product you’re selling there “U.S.” Housing Secretary Donovan.

Indeed, Wells Fargo’s Promontory process apparently found no wrong doing in 9,996 cases out of 10,000 examined. The other four were sent to Wells Fargo for further review but came back as no problem. At least, 0 problems out of 10,000 files is what the insider’s supervisors announced to everybody. I don’t know if the supervisors were telling the truth or just trying to message everyone to not find any problems in any files. Either way it tells you the same thing: the reviewers won’t find anything wrong with the files.

Hey Secretary Donovan, want to try that ‘”settlement” with OCC reviews as justice’ pitch again?

Can’t Just Be Stumpf’s Wells Fargo

I don’t think Wells is alone in concocting an elaborate sham to check the ‘atonement’ box on the consent decree/settlement checklist.

First, all the banks subject to the decrees have all cooperated in manufacturing profits in ways that have deeply distorted our social fabric and our nation’s public policies. Second, since the OCC’s willing to let John Stumpf’s Wells Fargo do a thoroughly fraudulent process, surely it’s willing to let the rest of them do it too. I say “Bank-run OCC” quite deliberately. Third, Promontory is engaged to do three reviews; Wells, Bank of America, and PNC. Now, the insider only worked on the Wells Fargo Promontory project, so I can’t be sure the other two set ups are equally rigged. But what are the odds?

As to banker-driven distortion of our national government’s priorities, you can see it clearly if you know where to look. Generally it’s in the serial banker-centric responses to the financial meltdown and the ensuing housing crisis. But a concrete example is how our federal government has handled unsustainable liabilities.

Just More Proof Our Government Represents Bankers, Not Us

The bankers got and still have troubled asset “relief.” Without that help they’d all be bankrupt today. But homeowners are still denied mortgage principal relief on their their homes, even in bankruptcy. Don’t tell me that the moral hazard of troubled asset relief is smaller or less systemically important than the moral hazard of mortgage principal relief, in bankruptcy or out. There’s absolutely no way to justify that disparate treatment on the merits.

Underwater, toxic mortgages aren’t the only Wall Street created, unsustainable liability affecting our nation. Nationwide local governments are locked into extremely expensive Wall Street products called interest rate swaps. These deals turn our tax dollars into windfall profits for the bailed-out bankers. Taxpayers are trapped in the deals by high early termination fees. Worst of all, the reason these deals are so bad for municipalities is the Fed’s free money response to the banker-caused financial meltdown. That is, our government trying to help the bankers is facilitating the profiteering from municipalities. And yet I’ve heard no one in the Obama administration suggest helping municipalities cope with the bankers’ greed. At least Team Obama talks a good game about helping on mortgages.

(Btw, are you anti-union? Well, consider who did the dynamite research documenting the swaps problem: SEIU.)

What the Fraudulent OCC Review Means for “Settlement” Enforcement

But our federal government’s willingness to help banks and not people isn’t confined to disparate treatment of unsustainable liabilities. In the face of a worsening mortgage servicing, foreclosure fraud, and rule of law crisis we get a toothless settlement between the bankers and all meaningful law enforcers. A toothless settlement is no settlement. The bankers’ recidivism on SEC injunctions makes that clear.

Why do I say the settlement is toothless? Yes, as of writing, two weeks after the deal was announced, there’s no settlement text to look at. However, the “Executive Summary” of the deal says this about compliance: “The banks will report on their compliance in the form of agreed-upon metrics and outcome measures.” (Bold mine)

How do you think the banks will do that reporting? Surely they’ll hire firms like Promontory Compliance Solutions LLC; after all, by doing Wells’s OCC reviews, Promontory’s got pole position on doing its settlement compliance too, right? And if Promontory’s rigging the review to ensure Wells Fargo doesn’t pay homeowners a dime in restitution, it’ll be even more thoroughly protective of the bank when theoretically big fines ($1-5 million/each) are at stake.

Who IS Promontory Financial Group?

If Promontory Financial is going to be allowed to conduct officially-condoned compliance theater, let’s take a look at the actors in the production. From the firm’s website’s “Our Firm” page:

“Led by our Founder and CEO, Eugene A. Ludwig, former U.S. Comptroller of the Currency, our professionals have deep and varied expertise gained through decades of experience as senior leaders of regulatory bodies, financial institutions and Fortune 100 corporations.”

Ok, that makes sense: Ludwig’s a former head of the bank-run OCC, so of course his firm was lined up to do OCC reviews. And from his long form bio on the company’s site, we learn: “Before becoming Comptroller, Gene was a partner in the law firm of Covington & Burling, specializing in banking law.”

Do you remember Covington & Burling, and its connection to federal law enforcement, MERS, and implicitly the Justice Deparment’s failure to prosecute the bankers that are Covington & Burling’s clients? Not really? Well check out Covington’s “Financial Institutions” practice, and its White Collar Criminal Defense page. Note Covington’s partnership includes John Dugan, who returned to the firm after his recent years as Comptroller of the Currency, Edward Yingling, recent head of the American Bankers Association, James Garland, recent Deputy Chief of Staff to AG Eric Holder and Steve Fagell, also a recent Deputy Chief of Staff to AG Eric Holder. Though their current bios don’t show it as clearly as they once did, Garland and Fagell were instrumental in structuring the Justice Department’s response to financial meltdown crimes before returning to Covington’s white collar criminal defense practice. Finally, remember that AG Holder is himself a former Covington partner, as is Lanny Breuer, his head of the Criminal Division. Presumably both will return to Covington when they’re done at Justice.

Doing a complete list of the connections between Covington, our government and the bankers the Feds regulate and “prosecutes” takes too much time, and besides, I really want to talk about Promontory. Covington’s in this post purely because Promontory has deep roots at the firm, beyond Founder and CEO Eugene Ludwig’s time as a partner there.

From Promontory’s “Firm Leadership” page, we get:

Alfred H. Moses is Promontory’s Co-Founder, Senior Partner and Chief Strategy Officer.

Alfred was a Partner at the Washington, D.C., law firm of Covington & Burling for much of his career.

Here are other Covington alumni at Promontory: Managing Director Barak Sanford, Managing Director Michael Dawson (who also worked in the Treasury Department), Managing Director Joyce Payne Yette, and Principal and Deputy General Counsel Pat Gage. Paul Tagliabue, currently Of Cousnel at Covington, serves on Promontory’s Advisory Board.

Promontory’s also wired into Capitol Hill and the OCC beyond Ludwig. For example, Managing Director Amy Friend worked for Senator Chris Dodd and the Senate Banking Committee for years, as well as for the OCC. Konrad Alt, who is point person for Promontory on at least one of these reviews, once was counsel to the Senate Banking Committee

To sum up: the law firm most hardwired into the Justice Department under AG Holder, with deep ties to the OCC, is also thoroughly hardwired into Promontory Financial, which is helping Wells Fargo, a Covington client, “comply” with the OCC’s consent decree. And Promontory also employs veterans of our government’s bank regulating and law writing institutions who somehow managed never to work for Covington.

I’m beginning to think that “revolving door” doesn’t describe Covington & Burling’s relationship to the power, at least anything bank or law enforcement related. It’s more like Covington & Burling is the nerve center through which bailed-out bankers shape banker law enforcement and regulatory policy.

What a Real Compliance Firm Looks Like

For an article on internal investigations I wrote for Corporate Secretary Magazine, I had the pleasure of interviewing Toby Thacher. Here’s how his firm presents itself on its webpage:

Thacher Associates, LLC is one of the premier corporate intelligence, investigative and integrity risk-management firms in the United States. …

Although Thacher Associates is not a law firm, most of our senior managers are attorneys with considerable experience as prosecutors. …

Each year corporations, government and regulatory agencies, school districts, and charitable and religious institutions lose billions of dollars due to breaches of fiduciary duties, self-dealing by untrustworthy employees, and unethical actions by unscrupulous or unqualified vendors and contractors. Thacher Associates helps clients protect and enhance their reputation—and their bottom line.

For that article, Thacher told me that his firm is prepared to resign rather than look the other way:

“We were involved in one investigation where we believed there was criminal activity on the part of one of the corporate officers, which needed to be reported to the SEC and prosecutors,’ he recalls. ‘We asked for permission to tell the audit committee, but the client refused. Our only alternative was to resign from the investigation.’”

Here’s the bios of the three Thacher principals. All three prosecuted organized crime; none have practiced white-collar criminal defense. And this page shows they do the kind of work needed for both the OCC reviews and compliance assessment for the mortgage settlement. Can you imagine a Thatcher Associates-type firm implementing a Promontory-type charade? I can’t.

Now, I know about Thacher Associates only because the article I wrote. Surely there are other Thacher-type firms. You can spot them because they won’t be choc-a-bloc full of serial Covington alumni or similar folks from other big DC lobby/law firms. I include Thacher just to show what could be, what would be, if the Attorneys General signing the “settlement” or the OCC were remotely serious about ensuring the bailed-out bankers obey the law or honor their agreements.

So that’s the big tell: as so long as firms like Promontory (or Allonhill, see Michael Olenick) are allowed to do the ‘compliance’ work, the mortgage settlement and the OCC review process are meaningless. And don’t let the fervent marketing efforts of Housing Secretary Donovan convince you otherwise.

 

38 Responses

  1. If my home loan doesn’t qualify for the OCC IFR then no ones does.

    I called the IFR Hotline for Bank of America on February 28, 2012 to inquire why I hadn’t received a notice before the 12-2011 deadline and was informed that it must have been an oversite because my loan fit the criteria. I was told a package containing the review materials would be forthcoming.

    After that conversation with BAC I sent an e-mail to the OCC highlighting my concerns over another consent decree with the Banksters wherein they were permitted to pick and choose who to use for the IFR (the fox and the hen house story all over again).

    To my surprise i received an e-mail back from Monica Fuentes Freas
    Assistant Director of the Enforcement and Compliance Division of the OCC and she wanted to set up a time to call me to discuss the issues I had raised and my other concerns.

    I got the teleconference call a couple days later and 3 or 4 other individuals were present in the room with Ms. Freas, attorneys for one departyment or another, She explained to me that it sounded like I would qualify for compensation, something in the area of $1800.

    It was all i could do to keep from laughing. I’ve posted here many times but rather than going through it all again the short version is: I been fighting foreclosure and pretender lenders since December of 2006: 5 foreclosure filings, same law firm but each time claiming to represent a different party with rights developed through mergers, takeovers, successor in interest, etc., etc. And not once have they presented the note.

    My DOT was assigned on May 31, 2011 by one of MERS secretaries (almost 7 years after the party named in the DOT disolved its corporation) to Bank of America HomeLoans Servicing LP., just one day before BAC merged itself with BACHLS LP.

    So yes, the Independent Foreclosure Review is just another government attempt at the smoke and mirrors routine to keep the public distracted while the clock runs out on the statute of limitations for the crimes committed by the Banksters……..

    There never has been any help for the homeowners, there never will be any help for the homeowners and soon there won’t be any homeowners in America….. This is the end game….

    TheGrey

    Enforcement and Compliance Division (Mail Stop: 7-1)
    Office of the Comptroller of the Currency

  2. @ Bart

    Go get-em Dude. Take us “Back To The Future” – The Constitution Of The United States Of America.

  3. DEBBIE – MAHER SOLIMAN EXPERTWITNESS

  4. @Bart
    Everything happens for a reason. Good Luck to you, we need more good people like you!

  5. God bless you, Bart…best of luck in your journey to do the right thing, in a world full of darkness.

  6. Neil, ive been with you from the beginning, and I agree that this occ thing is a scam on the property owner, till title in courts is focused on not mortgage this narrow minded thinking will continue. Title is the key.and if there is proof that the title is not held with the banks and all the robo signing to cover that that is a good focus. Also, if and when you find your true parties of interest and they cannot prove out it is dead. I applied to law school today, tired of attys that are dishonest and unethical, this country is due to become homeless America the way things are heading,I plan a lot of pro bono in my career and will take care of the underprivileged, and yes honest and ethical.

  7. Can anyone suggest a banking industry expert to testify to the defects in a servicer’s payment history? Need testimony that a homeowner’s payments were misapplied by the servicer and should have gone into a different place. Any suggestions posed here would be greately appreciated.

  8. Shared a story similar to this one yesterday somewhere in the topics he posted.

    http://mobile.reuters.com/article/idUSTRE81R1ZG20120228?irpc=986

  9. I called that OCC foreclosure review twice just to verify there was no confusion. I asked, if this applies to American Home Mortgage Servicing Inc. They said they’ve never heard of them and this only applies to the 14 participating servicers and their branches. I asked if it would make any difference if Wells Fargo was the Master Servicer of the Trust. They replied, “No this only for the loan servicer.”

    I hope some of you post the outcome replies. Like to hear how it went.

  10. http://www.dailyfinance.com/2012/02/28/fdic-bank-earnings-hit-five-year-high-in-2011/

    Maybe they’ll start reimbursing our money…?

    No shame in dreaming.

  11. MTuner

    I hired an attorney on this list and I am in your area would love to talk with you pmbva at yahoo

  12. Our so-called leaders in power in America, every one of them benefited from the bailouts when their risky bets went south, at taxpayer expense, would like to see us pay yet again. Remember folks, these people are “in charge”. The following blowhard, David Walker, served as United States Comptroller General from 1998 to 2008, and in my opinion should be tarred and feathered just for being him. What did he do on his watch to stop all the criminality? Dereliction of duty? Ya’ reckon?

    He considered himself senator material. Just that last statement explains why the whole thing needs to be hastened towards its demise. According to Wikipedia:

    He favorably compares the thrift of Revolutionary-era Americans, who, if excessively in debt, would “merit time in debtors’ prison”, with modern times, where “we now have something closer to debtors’ pardons, and that’s not good.”

    This at a time when Americans from coast to coast are struggling just to feed and clothe themselves. FEMA camps anyone?

  13. http://www.youtube.com/watch?v=tGk5ioEXlIM

    The American Dream

    Trespass Unwanted, Corporeal, Life, Free and Independent People, In Jure Proprio, Jure Divino

  14. I think all who submit their cases to the OCC should post their submissions publicy for all to see. Make all this public not just for the Reviewers and the Banks but for everyone else. Most people unless they are going through this or know someone who is really are unaware of what is really happening which is dangerous because this is our children’s future. This whole Review Process sounds just like a broken record. Why should anyone expect the banking industry to be honest or have any integrity, they wouldn’t know how. When we sent in our Review for IndyMac/ One West Bank I attached 10 pages of the chronology from our discontinued lawsuit with a letter asking them to find the “errors” and “wrong doing” regarding our case told to me and our attorney by Joseph Kiaune, Escalation Specialist of One West Bank, who would not disclose what the “errors” and “wrong doing” were. I really would like to know.

  15. Enraged you understand you can’t have a SHAM when the OCC does not have powers to enforce laws. CONGRESS is the sham. Congress concealled mortgage loans sold in secondary market are unregulated. Closed End Mortgage held by Property Trust and Real Estate Investement Trust Broker of Title insures sale of collection right and agrees to issue in name of SERVICER ANYBANK NA dba Correspondent of Servicer ‘Loan’ to you in exchange for a Sales Contract, your promissory note held in blank pending your coveted default! When you defaul their self-insurance fund each REMIC settles us the short-sale. The harm to you happened after the Sheriff/Trustee Sale. LOOK Back, at the orders – look very carefully at all the orders you were not copied on!

  16. @E. Tolle
    “We the people are being sacrificed in the wide open just to save their lifestyle of corruption”

    Where are the mainstream voices who can articulate this to the American people? Your post listing these instances of a travesty of justice outside the Rule of Law is effective. Many, many more could be brought to light – as could the still few exceptions that follow the law which grow daily. These differences in rulings jurisdiction to jurisdiction county to county state to state judge to judge are a nightmare. This must continue to be exposed. Homeowners past and present, paying on time or not need to keep filing lawsuits in greater and greater numbers even if in vain. Our government is not coming to the rescue. Our elected leaders and administrators are beholding to the overlords. Attorneys who understand this and care about this need to facilitate opposition to this any way they can even if in vain. This must be remembered by history if nothing else. Even if the belief is that the only thing that matters is that a homeowner is delinquent on a “legitimate” obligation they “signed” – the reason for the laws already in place (that are not being followed or enforced) is to prevent the outright theft of money, life and property. It seems it is open season for anyone who says they are a “bank” to grab a home just because a fabricated document got recorded (or not recorded). What would prevent anyone from producing fabricated computer records that show someone was late on payments, say they are a “bank” and sieze a home? That scenario is made possible when clear “title” and verifiable “writings” are not required anymore.

    Laws are there to protect homeowners equally in real property transactions – not just “banks” (who are not even banks). Since this is not happening maybe we need new laws now not later (a law that says laws must be followed – enforced?)…..pathetic.

    What have we come to if there is no Rule of Law? How many centuries of civilization and law are we destroying as a society now? It will backfire on those who have looked the other way…..including the bankster enablers and the judges. All will be foreclosed later if not sooner. The fraud itself is unsustainable.

  17. http://www.stayinmyhome.com/blog/2012/02/standing-at-inception-appropriately-raised-via-motion-to-dismiss/

    Standing at Inception, Appropriately Raised Via Motion to Dismiss
    Posted on February 27th, 2012 by Mark Stopa

    Foreclosure defense attorneys see this fact-pattern frequently. The Note attached to the original Complaint contains no endorsements, yet the Note attached to an Amended Complaint is specially endorsed to the Plaintiff or endorsed in blank. This prompts an obvious question – “When was the Note endorsed?”

    Plaintiffs’ attorneys love to argue this doesn’t matter because they have the original Note, with an endorsement, so they’re the holder. However, as I’ve been arguing for many years, including here, here, and here,
    http://www.stayinmyhome.com/blog/2010/12/when-foreclosure-lawsuits-are-frivolous/
    http://www.stayinmyhome.com/blog/2011/08/the-solution-to-court-funding-problems-case-dismissed/
    http://www.stayinmyhome.com/blog/2011/12/not-just-standing-standing-at-inception/
    that’s not sufficient – foreclosure plaintiffs must show they had standing at the inception of the case. Specifically, foreclosure plaintiffs must show they had an endorsement (or an assignment, as the case may be) and possession of the original Note before filing the underlying lawsuit.

    In recent months, Florida’s appellate courts have borne out this distinction, requiring plaintiffs to prove ”standing at inception” to prevail in a foreclosure case. See Feltus v. U.S. Bank, N.A., Case No. 2D10-3272 (Fla. 2d DCA 2012); McLean v. J.P. Morgan Chase Bank, N.A., Case No. 4D10-3429 (Fla. 4th DCA 2012); Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d 773 (Fla. 4th DCA 2012). Notably, these cases make it clear that an outright dismissal (without leave to amend) is the only proper remedy for a foreclosure plaintiff which lacks standing when suit was filed.

    Admittedly, it’s easy to cite a case and assert it stands for a proposition of law when that may or may not be the case. So don’t take my word for it. Read McLean:

    While it is true that standing to foreclose can be demonstrated by the filing of the original note with a special indorsement in favor of the plaintiff, this does not alter the rule that a
    party’s standing is determined at the time a lawsuit was filed. See Progressive Exp. Ins. Co. v. McGrath Cmty. Chiro., 913 So. 2d 1281 (Fla. 2d DCA 2005). Stated another way, “the plaintiff’s standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed.” …

    To summarize, the plaintiff must prove it had standing to foreclose when the complaint was filed. …

    Where the plaintiff contends that its standing to foreclose derives from an indorsement of the note, the plaintiff must show that the indorsement occurred prior to the inception of the lawsuit. If the Note or allonge reflects on its face that the endorsement occurred before the filing of the complaint, this is sufficient to establish
    standing. …

    In the present case, as is common in recent foreclosure cases, Chase did not attach a copy of the original note to its complaint, but instead brought a count to re-establish a lost Note. Later, however, Chase filed with the circuit court the original promissory note, which bore a special indorsement in favor of Chase. Because Chase presented to the trial court the original promissory note, which contained a special endorsement in its favor, it obtained standing to foreclose, at least at some point.

    Nonetheless, the record evidence is insufficient to demonstrate that Chase had standing to foreclose at the time the lawsuit was filed. The mortgage was assigned to Chase three days after Chase filed the instant foreclosure complaint. While the original note contained an undated special endorsement in Chase’s favor, the affidavit filed in support of summary judgment did not state when the endorsement was made to Chase. Furthermore, the affidavit, which was dated after the lawsuit was filed, did not specifically state when Chase became the owner of the note, nor did the affidavit indicate that Chase was the owner of the note before suit was filed. Therefore, Chase failed to submit any record evidence proving that it had the right to enforce the note on the date the complaint was filed.

    We therefore reverse the summary judgment and corresponding final judgment of foreclosure. On remand, in order for Chase to be entitled to summary judgment, it must show, without genuine issue of material fact, that it was the holder of the note on the date the complaint was filed (i.e., that the note was endorsed to Chase on or before the date the lawsuit was filed). By contrast, if the evidence shows that the note was endorsed to Chase after the lawsuit was filed, then Chase had no standing at the time the complaint was filed, in which case the trial court should dismiss the instant lawsuit and Chase must file a new complaint. See Jeff-Ray Corp., 566 So. 2d at 886. An evidentiary hearing may also be required if there is disputed evidence on an issue, such as to the date the note was endorsed to Chase.

    I’m pleased to say the judges before whom I appear are really starting to understand this principle of law and apply it in foreclosure cases. However, one issue I’ve begun encountering (in response to motions to dismiss) is when plaintiffs’ attorneys to say ”yeah, but those are summary judgment cases.” In a motion to dimiss, they argue, the Court is confined to the four corners of the Amended Complaint, and the absence of an endorsement on the original Complaint (when the plaintiff has filed an Amended Complaint) is outside the court’s purview at the motion to dismiss stage of a lawsuit.

    I’ve thought about this fact-pattern a lot, and I think the solution is clear. In cases where they’re traveling under an Amended Complaint that has an endorsement on the Note that was not on the Note attached to the original Complaint, foreclosure plaintiffs need to plead the date in which the endorsement was entered. Let’s say that again:

    Foreclosure plaintiffs need to plead the date in which an endorsement was entered.

    Think about it. Is this really that unreasonable? If an endorsement shows up on a Note attached to an Amended Complaint, when the endorsement wasn’t on versions of the Note filed previously, and the plaintiff’s standing is predicated entirely on that endorsement, is it really that unreasonable to force plaintiffs to plead when the endorsement was created in their Amended Complaints? Florida requires ultimate facts. Isn’t an allegation as to when the endorsement was entered the bare minimum required to get over the “standing at inception” hurdle?

    For anyone who thinks this would only serve to further burden our courts, look at it this way … which is the better use of judicial resources, forcing plaintiffs to plead the date these endorsements were created, or allowing cases to proceed to an Answer, a summary judgment hearing, and potentially a trial, without any allegation on this issue? Remember, if the plaintiff can’t show the endorsement was created before the lawsuit was filed, then the case is dismissed – case over. And if the plaintiff can so allege, then this helps the parties frame the issue as they proceed forward on the merits.

    Isn’t it more efficient to require the date of the endorsement any time there’s an Amended Complaint? To prevail in a foreclosure case, the plaintiff must prove the “endorsement occurred prior to the inception of the lawsuit,” see McLean; shouldn’t they have to plead that as well?

    With this backdrop in place, I’m very pleased to see this Order, http://www.stayinmyhome.com/blog/wp-content/uploads/2012/02/Order-Dismissing-AC.pdf
    which Judge Lee Haworth in Sarasota drafted himself, dismissing an Amended Complaint with instructions that the plaintiff, upon amendment, include allegations showing when the endorsement was put on the Note. The judge cited all of the appropriate cases regarding standing at inception and basically said “I’m not going to let this case proceed further if plaintiff can’t show when the endorsement upon which it relies for standing was entered.”

    This should be happening across the board, in all Florida courts. There are far too many junk pleadings where endorsements magically show up after-the-fact. These garbage pleadings should stop. When foreclosure plaintiffs rely on an endorsement that wasn’t on the Note attached to the original Complaint, they should be made to plead the date that endorsement occurred in an Amended Complaint, failing which their cases should be dismissed and they should be ordered to re-file a new lawsuit. See cases, supra.

    Mark Stopa Esq.

    http://www.stayinmyhome.com

  18. No body is getting CRAP in the from of settlemnents. and Garfields list of crooked Lawyers simply take your money and run. Check out Wilfredo Pesante, DC lawyer who was disbarred from Ga. and Garfield had him on his list. I’ve had 3 on this list in the DC area rip me off! No good bums! Complete shamsters!

  19. Enraged, while I hope you’re right, it’s still all conjecture. What I’m spouting are facts. You can imagine all kinds of things that you hope will happen, while at the same time witnessing what’s going down in real time. They’re miles apart.

    I hope I’m wrong.

  20. E. Toile,

    America might be the only country trying to save its skin by condoning fraud and corruption but it will not fly in the face of the world. We are ONLY 320 people. Less than 5% of the world population.

    I am keeping faith.

  21. It’s happening behind the scenes slowly but surely in courts all across the land. And Americans don’t care, because they naively believe that their lawmakers take care of such issues and work for the people.

    MI Supremes overturned and now loves MERS. Today, New Hampshire’s Superior court ruled that MERS has the authority to both hold and assign its interest in mortgages under New Hampshire law. We all know that the facts point towards a different ruling altogether.

    Just last week, the United States District Court for the District of Idaho affirmed MERS as the beneficiary, ruling that MERS has the authority to assign its interest in deeds of trust under Idaho law.

    The kicker here is this, “Judge Winmill also dismissed the plaintiff’s claim that in order to foreclose non-judicially under Idaho law the trustee must provide evidence of an ownership interest in the underlying promissory note.”

    That last part is the same as in MN and AZ and probably others (I’m not up on it), where you’re just totally out of luck, and Longan be damned, like an historic but useless relic of the past. The note is no business of the borrower in these judges eyes.

    Just recently the U.S. Court of Appeals for the 10th Circuit, which has jurisdiction over federal cases originating in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming, ruled in Scarborough v. LaSalle Bank that securitizing a promissory note does not invalidate a borrower’s debt, nor does it cancel the note holder and its agent’s authority from enforcing the deed of trust.

    So it’s plain as day that in order to further their leverage and risk taking, they’re having the courts validate the splitting of the note and deed through the use of MERS, even though there’s a plethora of academic and enforcement validation that shows without a doubt that that is plain wrong, and flies in the face of age old law.

    Similar to how obvious it was that there was a federal plan to squash the occupation movements around the country last year, the same would appear to be underway within the courts. These people all operate from the same script, that of saving their system no matter the cost. We the people are being sacrificed in the wide open just to save their lifestyle of corruption. Fuck them all.

  22. For some reason, this site is blocking the important news.

    81 BANK RESIGNATIONS SO FAR AND COUNTING. Google “Bank resignations worlwide” and you’ll have the update. Or go to Charleston Voice website.

  23. @Jordana and E. Toile,

    Bad idea. From someone who’s used printed paper in the past, the last thing you want is a decal of Dimon’s face on your butt: it takes forever to wash off. Man, that printing ink is a pain to remove! Try changing a leaky cartridge. See how long it will take to wash off your fingers!

    Plus… imagine you get into a car crash with Dimon’s butt face on your backside. Talk about embarrassment!!!
    .

  24. hman- while the servicer doesn’t have to record assignments prior to a foreclosure, they do have to have the assignments in hand in order to prove up the chain of ownership. In other words, how did they end up with this mortgage/dot/note? Through a perfected chain of title. No other way, if contested.

  25. Is the servicer and trustee notified or contacted about these investigations? I wonder what happens if the “investigagtion” comes back and states that no fraud was commited? Does the servicer/trustee (whoever) now have that piece of paper to bring to court to show there was no wrong doing?

    What really sucks is that in NonJudicial states the burden of proff is on you. So in AZ they’ve determinded that the “forecloser” don’t have to record assignments prior to trustee sales.

    Arizona Supreme Court answered unanimously in Vasquez v. Saxon Mortgage Inc., No. CV-11-0091-CQ (Ariz. Nov. 18, 2011), that lenders are not required to record assignments prior to noticing a trustee’s sale.

    So AZ has “legitimized” MERS and decided assignments don’t have to be recorded. Hogan v Washington was heard in Jan but I don’t yet know the verdict. This case is to determine if you need the note to foreclose. If Hogan loses AZ loses big.

  26. Let’s get backers (oooh pardon the run on puns here). Let’s get some push to this movement. Oh, I hate myself right about now. New meaning to run on the banks? Ugh.

  27. @ jordana, now there’s an idea I can get behind! Just the thought of Dimon’s face coming up to greet me sends shivers! Capital idea!

  28. Perhaps we should suggest Wells start using softer paper so we can use it to wipe our own butts. Wait, great invention idea…. bankster toilet paper. Anyone?

  29. @ Jordana, ink’s food grade these days.

    Another tip for the down on their “regulator’s lack of action” (luck)….shredded collection letters work great for cat litter also. Just a ¼” of clay litter in the bottom of the tray keeps the paper from sticking. A take it from me, there’s nothing more exhilarating than adding a nasty letter from Wells Fargo into the bottom of a cat litter tray and watching the action ensue.

    Fun for the whole family. Tomorrows tip….Origami and Eviction notices.

  30. I also submitted my independent foreclosure review request to Promontory Jan 16th 2012. Like most I have this sinking feeling in my stomach I will not receive a penny for the injustice committed by my servicer PNC. Enough to say I begged these people to give me a break and I beleived I was qualified. I will just say I paid off 4 mortgages to this same bank in the previous several years. I would suggest to all who have applied for the review, finish the job by submitting a Qualified Written Request to your servicer. Look at your review form on the last page there are instructions on who to send it to. Ask me to show you my mine if you want an example of what one likes like. Mine addresses the fact PNC may/is responsible for my home being wrongly foreclosed on. My Qualified Written Request asks for a 100% plus review & audit of my loan history is base on RESP sec 6 and PNC has basically acknowledged they are going to follow up. Or at least I have a response letter to that effect. I am also praying my QWR will get their attention and hopefully have some effect on the independent foreclosure review. My email is felix@stocktonbroker.net and anyone is welcomed to contact me re the QWR I am reffering to.

  31. I’d be afraid to eat any s’more cooked over a roasting bankster. I do like the organic vegetable idea for the OCC review papers, but I would check how toxic the ink is first. Don’t want to let them kill us…. though they’d like to.

  32. I received one of the review packets. I carefully shredded it into millions of tiny pieces and fed it to my worms, where it will be digested and become a useable form of shit, instead of the non-utilitarian version of shit the OCC sent me. The organic vegetables I grow and eat from the review, as well as from all of the other correspondence from wanna be creditors and collection firms will sustain me and my worms quite well. It’s most valid use for any and all the crap originating from Wall Street and D.C.

    Today, Mitt Romney admitted his mistake in drawing unwanted attention to his wealth. IMO, it’s not his wealth that’s unwanted, it’s him and all of his cohorts. He said that he was unwilling “to light my hair on fire” to win. Awe come on Romney, don’t let a financial gaff get in the way of a good Spontaneous Elite Combustion event. If you ask me, that’s something we need more of. Guaranteed you’d bring in a bigger crowd than the Daytona 500 any day.

    Yesterday, Warring Baffoon said:

    >“Large numbers of people who have ‘lost’ their house through foreclosure have actually realized a profit because they carried out refinancings earlier that gave them cash in excess of their cost. In these cases, the evicted homeowner was the winner, and the victim was the lender.”

    I’d also like to see him go up in flames, slowly, for maximum effect. Nothing can replace a billionaire oracle sizzle in the hearts and minds of deadbeat borrowers. A century from now, our grandchildren will fondly tell their children of what it was like when the first banker pyre festival was held. S’mores?

    It’s our solemn duty for our children and their children, that we do everything humanly possible to take these morons down. They have proven themselves totally unworthy of sharing a seat at mankind’s table. They’re a blight upon the planet. Besides, they’re overburdening my vermiculture bins. Death to Wall Street.

  33. If the people hired to do the review are not allowed to ask the victim any questions directly and can only ask the victim questions through the party being investigated, would speak volumes in itself as to the true intent of the investigation. Say no more!

    If the temp employees don’t have a banking or legal back ground when the intent of the investigation is clear. Say no more!

    If the investigators are being instructed to “stop digging” so problems will be ignored. Say no more!

    Yes, I think the OCC covered everything. No contact with the victim, incompetent investigators, limited scope of questions, job description: the less you accomplish the better. Thank God for whistleblowers, the internet, Garfield & Mandelman!

  34. I don’t think any human being actually works at the OCC. I only get automated responses from them. Let us know if a “real live person” ever responds.

  35. This is a copy of the e-mail I sent to the OCC just minutes ago after I called the Independant Foreclosure Review hotline earlier this morning. How many other serious foreclosure accounts have been overlooked in this review?

    To the OCC..

    Dear Sir or Madam:

    The purpose of this e-mail to the OCC is to express my concerns regarding the Independent Foreclosure Review system and the process used to determine which consumers would be sent letters of eligibility by the December 2011 deadline.

    As a consumer who has been deeply involved in the housing and mortgage crisis since October of 2006 (before many knew there was a crisis) I have seen a great many programs initiated by the Banking Industry and the Federal Government, programs that falsely raised the hopes of homeowners such as myself that we might actually receive some much needed help due in large part to the predatory lending practices that a great many of us had fallen victim to only to have those hopes smashed against the pillars of justice as all of those programs failed miserably.

    If my mortgage didn’t raise some red flags causing a letter to be sent out to me in regards to the Independent Foreclosure Review (IFR) then I doubt that anyone would have gotten a letter regardless of who their servicer was. But, apparently the following occurrences didn’t raise any alarms or concerns:

    Mortgage had been serviced by Countrywide Home Loans Inc., since December 2003.
    Mortgage has been in foreclosure, almost continuously, since December of 2006.
    Two Home Loan Modification requests initiated by Homeowner, one by Bank of America,
    none were successful in reaching an honest attempt at a modification.
    Five different foreclosure filings, three after BAC acquired Countrywide in 2008.
    Active foreclosures leading into 2009 and withdrawn in April of 2009 only to be refilled
    by BAC in October of 2009 with a first sale date of February 17, 2010.
    This foreclosure was continued week after week until the last listed sale date of February
    17, 2011, when the Public Trustee for Jefferson County, Colorado requested that the
    Banks Attorneys submit a withdrawal of the NED for failure to prosecute foreclosure.
    Three months later BAC again filed a NED and I am currently doing everything I can to
    prevent this sale from taking place.

    Because I never received an invitation to have my mortgage reviewed… Just today, the 28th of February,2012, I placed a call to the IFR hotline and after just a short time and only one transfer of my call later I got to speak with a live agent who assured me that a package of documents would be sent out immediately, in large part because the system showed that I should have been included in the mailing list sometime last year and that my mortgage most definitely qualified for review.

    My point is this: It would appear that some selective screening is taking place with the so called Independent Foreclosure Review process and I say this because anytime in the past that the Banksters have been allowed to participate in its own checks and balances there have been documented and numerous instances of inappropriate behavior on the part of the Banks.

    While one oversight on the part of the Independent Reviewers does not a conspiracy make, the phrase, “Just a little trouble with the paperwork.” spouted by the Banks a few years ago turned out to be the biggest understatement of this and the last Century.

    As consumers, we can no longer trust others to do what is legally required of them (we won’t discuss the moral issues) nor can we trust in those organizations and government entities whose job it is to provide oversight of these programs because the track record here is long and dismal.

    So there you have it, oh, one more thing. The Judge who presided over the Colorado Rule 120 Hearing back in December of 2011 in regards to Bank of America’s recent foreclosure filling stated for the record that the Note that had been submitted to the Court by BAC did not contain any assignments leading to BAC, in fact, the Judge stated that it appeared to missing two if not several assignments that would have been necessary to support BAC’s claim that it was the holder of the note. The Judge then proceeded to grant BAC’s petition for “Order Authorizing Sale” despite the fact that BAC and its Lawyers failed to even show up for the hearing.

    Is it any wonder that we who have suffered through this and those around us have lost faith in the system and expect only to be taken for a day trip to Disneyland at the end of which, when the adrenaline wears off, you discover that what little money you had left is now gone.

    My reference number is 1811646449 with the Independent Foreclosure Review group for BAC if you’d care to keep an eye on how this particular case plays out.

    Thank you for your time,

    DL Clementson

  36. I submitted my case to the OCC for its review, and it is a Wells case. I expect nothing largely because I think there is a large dartboard in the Wells executive dining room with my face on it (of this I am quite proud) and I think Stumpf would rather give up a yacht or two before he gives me a dime of my money back. However, someone is going to have to benefit from this consent order and review process. It simply won’t do for the entire process to run and have the banks find “no wrongdoing” as is implied in Mandelman’s blog report (and I’m a huge Mandelman fan. He makes me laugh when I want to cry). I’m certain some recovery will be forthcoming for some people. I must say I don’t know how a “forensic audit” will do any good. The OCC review, at least for Promontory is so limited. The questions are extremely narrow and recovery will most likely only be afforded wrongful military foreclosures. I submitted extra documents but it was not easy and I suspect no one is going to even look at them once it falls outside the review’s narrow scope.

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