Colorado Moves Forward with Legislation to Prevent Fraudulent Foreclosures

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Editor’s Comment: 

Once upon a time it was a simple thing. If you sued someone, you had to say why, plead facts that supported the relief you wanted, and then demand the relief. Today it is considered nearly revolutionary to require foreclosers to prove the loan, prove the facts supporting foreclosures, using real evidence and not suppositions. As Colorado moves closer to Nevada’s law there is ample reason to hope that foreclosures will plummet there too. Isn’t it odd though that mediated settlements are not rising substantially either? 

We can only assume that there is something the Banks and servicers are not telling the pensioners who rely upon funds that were heavily invested in the bogus mortgage bonds. Could it be that if the pensioners collectively and the homeowners collectively got together and compared notes they would discover the problem: that when their fund manager put up the money for loans, there were no loans? Or that the investment bank removed 20%–40% of the funds and converted them to fees and profits leaving only a fraction of the money of the pensioners to fund mortgages?

Pensioners and homeowners have more in common than they might realize. In fact they might even be the same person.  Someone whose pension funds are going down because of losses on mortgage bonds in their pension fund and someone who is losing their house in foreclosure because of the decrease in pension income and trickery used by the Banks in securing their signature in bogus loan deals. Many pensioners are going to hear soon that the benefits they were expecting must be reduced because of chicanery on Wall Street. Some of those same people are angry at the thought of providing relief to homeowners who were also tricked into these bogus loan deals. Now that you see the effect, are still sure that borrowers in distress are deadbeats?

Foreclosure: Initiative 84 changes language, pushes for signatures

By Kelsey Whipple

Initiative 84, a proposed constitutional amendment that would require lenders to prove ownership of property before foreclosing on it, has passed another hurdle in its move toward legalization. On Friday, proponents and opponents met before the state title board to discuss its language, which made it through relatively unchanged. The next step, however, might prove the hardest.

Before the potential amendment makes it to a statewide ballot, the Colorado Progressive Coalition, the body heading up its support, must collect a minimum of 87,000 signatures — which could cost $200,000 or more, CPC economic justice director Corrine Fowler says. Now that the effort’s language has been cemented, the coalition is gathering volunteers and paid representatives to launch its signature drive.

Initiative 84, which was created after House Bill 1156, a similar foreclosure measure, died in committee before making it to the floor, seeks to reverse 2006 legislation that changed the standards for legally processing Colorado foreclosures. Since that year, it has been legal for lawyers to sign a “statement of qualified holder,” which indicates ownership without a pattern of proof, and it is no longer mandatory to show a paperwork chain.

If approved, the amendment would require financial institutions to verify ownership of any property through a county note or a certified copy presented during the court stage of a foreclosure.

So far, the language has come under fire from a handful of financial institutions, and while both sides made arguments regarding the initiative’s appropriateness on Friday, most were rejected because they did not apply to title board proceedings. In the meantime, the board denied efforts to stage a rehearing to slow down the initiative.

Fowler says the CPC is satisfied with the slight change in wording, which now reads, “An amendment to the Colorado Constitution changing the existing evidentiary requirements for foreclosure of real property and in connection there with requiring the evidence be filed to sufficiently establish a party’s right to enforce a valid recorded security interest prior to the foreclosure of any real property.”

The central change here is that now sufficient evidence is required, rather than “complete” evidence. The difference could become a significant one at court in the future.

“Special interests like the Colorado Bankers Association won’t be able to come back and change it in future years,” Fowler told Westword. “This is going to affect the bottom line of the lawyers and the bankers, and we know that and don’t take this lightly. We believe that the foreclosure crisis is the biggest issue our national economy is facing.”


15 Responses

  1. I situtation in Colorado. I wish the best for the Denver Progressive colition in getting the initiative on the ballot to change the law. Mason L Ramsey in the 10th Circuit #11-1578. We are challenging the constitutionality of the Rle 120. We are Currently seeking $2000.00 to hire an attorney for oral arguments. This case could stop the banks and the Rule 120.

    To the People in Colorado if you can help call me at 916 214 3942

    Here is our brief and argument

    REPLY TO DEFENDANTS’ RESPONSE
    Reply to Defendant’s arguments that claim preclusion and issue preclusion renders this appeal moot.
    THIS COURT SHOULD DECLINE TO ADDRESS
    DEFENDANTS’ RES JUDICATA ARGUMENTS THAT WERE NOT RAISED IN THE COURT BELOW

    At p. 12 of Defendants’ response, defendants state:

    Citimortgage as one of many defendants. The state court action was based on the same subject matter, arose from the same transaction or series of related transactions underlying the District Court judgment on appeal, and conclusively determined Ramsey and Neville cannot state a claim based on any ruling from the Rule 120 proceeding. The state court entered an order that resulted in a judgment against Ramsey and Neville and in favor of Citimortgage on July 13, 2011, dismissing Ramsey’s and Neville’s state court action against Citimortgage with prejudice. Ramsey and Neville did not appeal the state court judgment. That judgment is now final. As a result of Ramsey’s and Neville’s failure to appeal the state court judgment and by operation of the doctrines of claim or issue preclusion, this appeal has become moot because the Court can no longer grant any effective relief.

    Defendants brought the motion to dismiss for failure to state a claim under 12(b) (6) raising both the Rooker- Feldman Doctrine and the Younger Abstention. CitiBank was not a party to the state court proceedings and therefore the Younger Abstention is not applicable to CitiBank. Gottfried v Medical Planning Serv, Inc, 142 F3d 326, 329 (CA 6, 1998) Moreover, defendants’ argument that the doctrine of claim preclusion, issue preclusion attaches from the state court case # 2101 CV 2671, renders this appeal moot. These are arguments that are raised for the first time on appeal. These arguments were not submitted to the district court.
    In RANDALL WILLIAMS v U-HAUL COMPANY OF COLORADO, No. 98-1046 (D.C. No. 96-WY-1845-CB) (D. Colo.) the court said:
    On appeal, Mr. Williams raises the new issue that management did not attempt to adjust his work duties to accommodate his foot and back pain. Mr. Williams also submits materials not presented to the district court to support this argument. As we do not consider arguments raised for the first time on appeal, see MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir. 1995), we will not address any issues Mr. Williams raises regarding his physical impairments.

    at p. 14 of Defendants’ response defendants’ state:

    . Second, in Defendants admit motion to dismiss at p.3, section (C) (1) document 38, filed 03/10/11 defendant Citimortgage states “Citibank and Citimortgage Are Distinct Corporate Entities Citibank did not foreclose on plaintiffs’ former property, and is not a party to the FED action.”

    In Headley v. Bacon, 828 F2d 1272 the court said:
    The defendants’ contention that privity is established because the City’s liability rested upon their actions confuses the privity analysis with that of the doctrine of respondeat superior. The two are far from coextensive. Section 49 of the Restatement (Second) of Judgments (1982) states that “[a] judgment against one person liable for a loss does not terminate a claim against another person who may be liable therefore.” Comment (a) to that section specifically states that the rule applies to conduct “legally chargeable to more than one person, as … under the principle of respondeat superior,” and goes on to note that in general joinder of all those potentially liable is permissive, not mandatory, stating:
    19
    When the claimant thus brings consecutive actions against different persons liable for the same harm, the rendition of the judgment in the first action does not terminate the claims against other persons who may be liable for the loss in question…. No reason suggests itself why the legal confirmation of one obligation should limit or extinguish the other.

    In sum, although we agree with the district court that for the purpose of res judicata Headley’s cause of action is identical to that brought to judgment in Headley I, the defendants in the present case were not in their individual capacity in privity with the defendant City in Headley I. As to whether they are in privity in their official capacity with the City remains to be determined by the district court when the record is developed. Therefore, Headley’s present claims are not barred by the doctrine of res judicata.

    Defendant Citibank is liable under the doctrine of Respondeat Superior in accordance with the court in Headley.
    ISSUE PRECLUSION IS INAPPLICABLE WITH RESPECT TO THE 5TH AMENDMENT , EQUAL PROTECTION CLAIM, AND THE 42 US 1983 CLAIM IN THE FED ACTION

    The doctrine of issue preclusion or collateral estoppel provides that a
    Court’s final decision on an issue actually litigated and necessarily decided
    in a previous suit is conclusive of that issue in a subsequent suit. Rantz v. Kaufman, 109 P.3d 132, 138 (Colo. 2005). This doctrine is “intended to relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.” Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 84 (Colo.1999)
    Issue preclusion is both broader and narrower than claim preclusion—
    broader in that it applies to claims for relief different from those litigated in
    the first action and narrower in that it applies only to issues actually
    litigated4. Rantz v. Kaufman, 109 P.3d 132, 138 -139(Colo. 2005).
    The Colorado Supreme Court has defined the scope of the “actually determined” element by looking to whether the issue was “actually raised and necessarily adjudicated.” Bennett College v. United Bank of Denver, 799 P.2d 364, 366 (Colo.1990). For an issue to be actually raised, a party by appropriate pleading must have asserted the issue through a claim or cause of action against the other party. Michaelson v. Michaelson, 884 P.2d 695, 701 (Colo. 1994).
    If an issue could have been raised but was not, issue preclusion is inapplicable… Indus. Comm’n v. Moffat County Sch. Dist. , 732 P.2d 616, 620 (Colo. 1987). Also, the issue actually raised must have been submitted for determination and then actually determined by the adjudicatory body. Restatement (Second) of Judgments, § 27. An issue is necessarily adjudicated when a determination on the issue is necessary to a judgment. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 86(Colo. 1999)
    Party or Non-Party in Privity: Issue preclusion can be asserted against
    a party or a non-party in privity; issue preclusion cannot be asserted if the
    defendant was neither a party nor in privity with a party. Quist v. Specialties Supply Co., 12 P.3d 863, 867 (Colo.App 2000)
    Issue preclusion is treated as an affirmative defense that ordinarily must be pleaded in the answer, as provided in C.R.C.P. 8(c). Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 86 (Colo.1999). citing C.R.C.P. 8(c).
    However, in some instances, an affirmative defense asserted for the first
    time in a motion for summary judgment will be deemed incorporated into
    the answer. Id. The burden of establishing the elements of issue preclusion
    rests with the party asserting preclusion. People v. Conley, 804 P.2d 240, 244 (Colo.App. 1990).
    Although issue preclusion typically is explained in the context of “adjudication,” an issue decided on a motion for summary judgment can preclude re-litigation of that issue in a subsequent proceeding. Defendants Citibank and Citimortgage have the burden of establishing the elements of issue preclusion. Defendant Citimortgage never filed an answer in the state case, nor moved for a motion for summary judgment. Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 86 (Colo.1999) citing C.R.C.P. 8(c).
    Issue preclusion would not bar the subsequent federal action based on the First Cause of Action-5th Amendment Violation (Biven’s Claim) for Denial of Due procedural due process as applied, the Equal Protection Clause of the 14th Amendment, or 42 US 1983 regarding the FED action which were not a part of the state court.
    At pgs 16 and 17 of Plaintiffs Opening Brief plaintiffs said were subjected to denial of procedural due process under the 5th amendment as well as being denied procedural due process und the 14th amendment. Plaintiff state:
    At p.1 of the report (APPENDIX C), the magistrate took judicial notice of the defendant’s trust deed which stated that both state law and federal law is applicable to the parties “rights and obligations” which is central to plaintiffs’ argument in this case:

    The Deed of Trust states that the parties’ rights and obligations “shall be governed by federal law and the law of the jurisdiction in which the Property is located.” See Exhibit 2 (doc.#32-2), at p. 14 of 60, attached to Defendants’ Motion to Dismiss Plaintiffs’ First Amended Complaint.[B ]

    The “controlling federal law” over the “parties’ rights and obligations” in the Deed of Trust would be the National Bank Act and the 5th Amendment. The “parties” referred to in the Deed of Trust would be the defendants, CitiBank N.A. and CitiMortgage which implicates the government through the National Bank Act; and Plaintiffs, Mason L Ramsey and Judith Mae Neville. The “rights” referred to in the Deed of Trust is the defendants’ rights as authorized as an incidental power of the expressed lending powers of a bank pursuant to the powers granted through the National Bank Act, such as the right to put a “Power of Sale” provision which leads to a 5th Amendment denial of procedural due process. It also involves the right of plaintiffs NOT to be deprived of property without procedural due process under the 14th amendment.

    In allegation 32 of the 1st amended complaint, (APPENDIX, PT 1) plaintiffs alleged:
    32. Plaintiff submits that the use of non-judicial foreclosures by power of sale provisions violate the 5th Amendment when the remedy is sought by federally chartered corporations like national banks like CITIBANK and its subsidiary CITIMORTGAGE

    While claim preclusion might be effective to bar plaintiffs’ due process under the 14th Amendment in this case, it is not effective against plaintiffs’ claims of denial of due process under the 5th Amendment & Equal Protection. The 5th Amendment Due process and Equal Protection not submitted in the state court. Therefore, Under Colorado law, Citimortgage would have had to file an answer or summary judgment in order to invoke issue preclusion to bar plaintiffs’ 5th Amendment and Equal Protection claims. As it stands now, Plaintiffs 5th Amendment Due Process claim survives even though plaintiffs’ 14th Amendment due process claim would be subject to claim preclusion, as distinct from issue preclusion. Issue preclusion is treated as an affirmative defense that ordinarily must be pleaded in the answer, as provided in C.R.C.P. 8(c)… Bebo Constr. Co. v. Mattox & O’Brien, P.C., 990 P.2d 78, 86 (Colo.1999). citing C.R.C.P. 8(c). Both Citibank and Citimortgage remain liable under the 5th Amendment & Equal Protection claims.
    THE CLAIMS IN THE STATE COURT WERE NOT IDENTICAL
    EXCEPT FOR THE 14th AMENDMENT DUE PROCESS CLAIM

    In the state case (2010 CV 2671) the claims were as follow:
    FIRST CAUSE OF ACTION (Breach of Contract); SECOND CAUSE OF ACTION (Tortious Interference), and

    THIRD CAUSE OF ACTION
    (Fraud in Factum-Mortgage Fraud)

    In the federal case, the causes were as follows

    FIRST AMENDED VERIFIED COMPLAINT

    Case No. 10 CV 02653 WYD CBS

    (1)FIRST CAUSE OF ACTION

    5th AMENDMENT VIOLATION (BIVENS CLAIM) for
    Denial of Due procedural due process AS APPLIED

    (2) SECOND CAUSE OF ACTION
    42 US 1983, 1988 (14TH AMENDMENT VIOLATION OF
    PROCEDURAL DUE PROCESS UNDER COLOR OF STATE
    LAW AS APPLIED)

    (3) THIRD CAUSE OF ACTION
    NEGLIGENT OR INTENTIONAL
    INFLICTION OF EMOTIONAL DISTRESS

    FOURTH CAUSE OF ACTION UNDER 42 USC 1483
    (14th Amendment Violation)

    The only similar cause is the procedural due process claim.
    THE RULE 120 FORECLOSURE HEARING
    HAS NO PRECLUSIVE EFFECT

    In Re MARK STANLEY MILLER No. 11-1232, February 1, 2012 the court

    said at pg s11, 12:

    We must therefore consider the preclusive effect under Colorado law of the
    standing determination the Colorado state court reached in the Rule 120
    proceeding. We note that Rule 120 itself provides that “[t]he granting of [a Rule 120 motion] shall be without prejudice to the right of any person aggrieved to seek injunctive or other relief in any court of competent jurisdiction[.]” Colo. R. Civ. P. 120(d) (emphasis added). By filing their bankruptcy petition, the Millers sought and obtained injunctive relief in a court of competent jurisdiction, in the form of the automatic stay.
    We further note indications that the Colorado courts would limit the effect
    of determinations in Rule 120 proceedings. The Colorado Court of Appeals has stated that “proceedings pursuant to C.R.C.P. 120 are not adversarial in nature, are not final, and generally no appeal may be taken to review the resulting orders.” United Guar. Residential Ins. Co. v. Vanderlaan, 819 P.2d 1103, 1105 (Colo. Ct. App. 1991).6 Accordingly, no final judgment is entered in Rule 120 proceedings and the rulings of the court in such proceedings do not have preclusive effect. Id.

    DEUTCSH BANK tried to convince that the determination in the rule 120 which didn’t require “clear and convincing” proof that they had the note to show that it was the real party in interest with standing to foreclose was sufficiently conclusive to allow the bankruptcy to lift the automatic stay. It is a universal tactic of the banks. They never did produce the note which would have been conclusive, and the court didn’t buy it.
    PIERCING THE CORPORATE VEIL
    The Michigan Supreme Court has repeatedly held:

    *** That veil piercing is not limited to instances of fraud or illegality. In Potter v. Michigan Bell Telephone Co., 246 Mich. 198, 224 N.W. 438 (1929), the court disregarded the corporate form despite recognizing that “[f]raud [wa] s expressly disclaimed.” Id., 224 N.W. at 439. In Herman v. Mobile Homes Corp., 317 Mich. 233, 26 N.W.2d 757 (1947), the court held that when a parent corporation’s control of its limited purpose subsidiary is so complete as to result in the subsidiary being a “mere instrumentalit[y],” piercing is appropriate to avoid an injustice, even in the absence of fraud. Id., 26 N.W.2d at 762-63

    Citimortgage is considered as a separate division or department of CitiBank. The Office of the Comptroller of Currency issued opinion letter 971 attached as Exhibit A, p. 2, which states in part:
    *** Because the activities of an operating subsidiary are limited to activities in which the parent bank could engage directly, an operating subsidiary is in practice a separately incorporated division or department of the parent bank [B, U]

    Because the activities of Citimortgage as an operating subsidiary can be considered as the OCC’s Opinion Letter states “***limited to activities in which the parent bank could engage directly, an operating subsidiary is in practice a separately incorporated division or department of the parent bank” plaintiffs should be able to piercing the corporate veil. Citimortgage is in effect an instrumentality of Citibank by which Citibank conducts “the business of banking”. 24(SEVENTH) as the court in Watters said: “For the past four decades operating subsidiaries have emerged as important instrumentalities of national banks”. Watters vs Wachovia, 05-1342, at p. 15
    At p. 3, document 38(C) (1) of Defendants’ motion to dismiss filed 03/10/11 defendants state:
    C Plaintiffs’ Constitutional Claims Fail as a Matter of Law

    1. Citibank and CitiMortgage Are Distinct Corporate Entities

    Citibank did not foreclose on plaintiffs’ former property, and is
    not a party to the FED action.

    In Watters, pg. 2, the court said:

    The NBA specifically authorizes federally chartered
    banks to engage in real estate lending. 12 U. S. C. §371.
    It also provides that banks shall have power “[t]o exercise
    . . . all such incidental powers as shall be necessary to
    carry on the business of banking.” §24 Seventh. Among
    2 WATTERS v. WACHOVIA BANK, N. A.

    Opinion of the Court

    incidental powers, national banks may conduct certain
    activities through “operating subsidiaries,” discrete entities
    authorized to engage solely in activities the bank itself
    could undertake, and subject to the same terms and conditions
    as those applicable to the bank. See §24a (g) (3) (A);
    12 CFR §5.34(e)

    As the OCC’s stated in the Opinion Letter # 971:

    *** Because the activities of an operating subsidiary are limited to activities in which the parent bank could engage directly, an operating subsidiary is in practice a separately incorporated division or department of the parent bank [B,U] (exhibit A)

    It is clear that CitiMortgage that CitiBank performs the same unconstitutional foreclosures as Citimortgage whose activities are limited to those that Citibank can perform.
    At p. 48 of Plaintiffs’ Opening Brief plaintiffs said:

    ***defendants are governmental bodies, which have denied plaintiffs due process and the equal protection by being subjected to a Rule 120 by CitiBank, a national bank through its instrumentality CitiMortgage.

    In plaintiffs’ First Amended Verified Complaint (APPENDIX, PT 1, allegations 3-5) plaintiffs allege:
    3. As an operating subsidiary of CITIBANK, CITIMORTGAGE the Comptroller of the Currency treats a State-chartered nonbank operating subsidiary of a national bank as equivalent to a national bank and, thus, as a national corporation. 12 C.F.R. § 7.4006 Watters vs Wachovia Supreme Court No. 05-1352.
    4. Plaintiffs do not know the true names and capacities of the defendants sued herein as DOES 1 through 10 (“DOE Defendants”), inclusive, and therefore sues said DOE Defendants by fictitious names. Plaintiffs are informed and believe and based on such information and belief aver that each of the DOE Defendants is contractually, strictly, negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner for the acts and omissions described herein. Plaintiffs will amend this Complaint to set forth the true names and capacities of each DOE Defendant when same are ascertained.
    5. Plaintiffs are informed and believe and based on such information and belief aver that Defendants CITIBANK & CITIMORTGAGE and Defendants 1 through 10, inclusive, and each of them, are and at all material times have been, the agents, servants or employees of each other, purporting to act within the scope of said agency, service or employment in performing the acts and omitting to act as averred herein. CITIBANK & CITIMORTGAGE and DOE Defendants 1 through 10, inclusive, are hereinafter collectively referred to as the “Foreclosing Defendants.”

    At pgs. 22, 23 of defendants’ response, defendants state “Citibank could only be liable to the extent Citimortgage were found liable, and then only if the corporate veil were pierced.”
    Plaintiffs have alleged enough facts to be able to pierce the corporate veil for otherwise as justice Scalia in Lebron vs. National Passenger Car Railway, 513 U.S. 374, 375 A contrary holding would allow the government to evade its most solemn constitutional obligations by simply resorting to the corporate form.[B,U ]
    The reality is that there is a “Concert of Action” between Citibank and Citimortgage to commit a tortious act pursuant to a common design. (See Restatement (Second) of Torts, it is defined in §876:
    For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he:
    (a) does a tortuous act in concert with the other
    Or pursuant to a common design with him, or
    (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
    (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person
    The common design is made apparent when, as the OCC’s Opinion Letter #971 *** Because the activities of an operating subsidiary are limited to activities in which the parent bank could engage directly.”***
    Depriving a party of procedural due process is a Constitutional Tort.
    Under that theory defendant Citibank is jointly and severally liable for the tortious act of Citimortgage
    THE RULE 120 IS AN AFFRONT TO
    FUNDAMENTAL FAIRNESS

    SECTION 2. 38-38-101 (1), (4) (g), (4) (j), (6), (9), and (10),
    Colorado Revised Statutes, are amended, and the said 38-38-101 (4) is
    further amended BY THE ADDITION OF A NEW PARAGRAPH, to read:
    38-38-101. Holder of evidence of debt may elect to foreclose.
    (1) Documents required. Whenever a holder of an evidence of debt
    declares a violation of a covenant of a deed of trust and elects to publish all
    or a portion of the property therein described for sale, the holder or the
    attorney for the holder shall file the following with the public trustee of the
    county where the property is located:

    ***or (II) A copy of the evidence of debt and a certification signed and properly acknowledged by a holder of an evidence of debt acting for itself or as agent, nominee, or trustee under subsection (2) of this section or a statement signed by the attorney for such holder, citing the paragraph of section 38-38-100.3 (20) under which the holder claims to be a qualified holder and certifying or stating that the copy of the evidence of debt is true and correct and that the use of the copy is subject to the conditions described in paragraph (a) of subsection (2)
    It is flagrantly and patently unconstitutional because it in effect allows the lender to foreclose on a homeowner’s property without any proof that the lender is the real party in interest. The issue of proof required in a rule 120 hearing has been the basis of outrage by homeowners and legal commentators throughout Colorado. Plaintiffs Mason L Ramsey and Judith Mae Neville ask this court to take judicial notice under rule 201 of an article in the Denver Post published on September 25th, 2011 exposing the events which led to amending the Rule 120 foreclosure statute in 2006. The article entitled “Colorado Public Trustees pushed to make it easier to foreclose on homes” (attached as exhibit A). Reporter David Migoya wrote in part:
    ***Interviews and documents reveal that the changes to foreclosure due process in Colorado were drafted and promoted by county public trustees***
    Unique trustee system
    Colorado foreclosure laws require a judge to review and approve the public auction of a house. Called a Rule 120 hearing, it’s the only time a judge is part of Colorado’s foreclosure process
    The governor appoints 10 of the trustees, two others are appointed by county officials where they serve and the remaining 52 are the county’s elected treasurer.
    Until 1989 Colorado homeowners could only defend themselves against a foreclosure at a Rule 120 hearing by proving they weren’t in default on the loan or were in the active military.
    That changed, however, with a Colorado Supreme Court decision that said homeowners had the right to challenge whether the foreclosing party was legally entitled to go after their house.
    “We were dealing with parties who knew the process and all their documents had the appearance of validity,” Colorado law was crystal clear: Foreclosing parties had to provide original documents in order to take someone’s house: notes, deeds of trust and their assignments.
    But subtle changes in favor of the banks began in 2002.
    Taking cues from the public trustees, the Colorado legislature passed a bill that re-wrote significant portions of the foreclosure statutes. The bill was drafted largely by Colorado’s top foreclosure lawyers in conjunction with the trustees***
    ***, [T]he legislation included a critical new provision: foreclosure attorneys could attest in writing that their client — a bank or other lender — actually possessed the note or deed of trust to a house they were foreclosing.
    For the first time, a bank no longer had to provide an original deed of trust or note in order to foreclose, though they still had to show the original assignments — the proof that one bank sold a note to another, giving it the right to foreclose.
    Undocumented leanings
    ***By then, the buying and selling of mortgages had become a common practice. *** The buyers of those loans bundled them into securities and sold them to other investors, often making it difficult to determine who actually owned the mortgage on an individual home.
    The super-heated housing market collapsed in Colorado in 2006. ***
    *** Suddenly, with just a lawyer’s signature, a bank could foreclose on a house without ever showing any proof that it had the right to do so. ***
    The reporter, David Migoya wrote “Critics say Colorado has since become a state where it takes little more than a lawyer’s signature to take someone’s home.” Indeed, the pen is mightier than the sword. With a stroke of the pen, the Colorado legislature had erased the protections to property our founding fathers had sought to defend.
    Plaintiffs also ask this court to take judicial notice under Rule 201 of an admission of a former lender’s attorney, Keith Gantenbein , Jr. (Exhibit C) who worked for Castle Meinhold & Stawiarski, LLC when he wrote:
    As one of Colorado’s main Foreclosure attorneys, I was employed by Colorado’s largest Foreclosure Law Firm, in Denver, from 2009-2011.
    I am now in private practice specializing in Foreclosure Defense.

    During my employment with this firm, my signature alone was sufficient to take away a person’s home – and – I was involved in tens of thousands of Colorado foreclosures. This was compliant with the law as it stood, and still stands.***
    Often, I was the face of the foreclosure industry. I conversed with thousands of borrowers, both in and out of court. I listened to their concerns, conflicts and struggles. In short time, I realized there was a huge discrepancy in power.

    Colorado’s current laws unfairly allow lenders and law firms/attorneys railroad through the foreclosure process and hide (or gloss) over substantive issues.

    When presented with an opportunity to open my own practice, I recognized, through the result of my experiences, I could help even the playing field by assisting homeowners struggling through an unfair system.

    I have intimate working knowledge of the public trustee system, and have personally executed tens of thousands of qualified holder statements. I have used that signature and document as evidence of standing to foreclose on those tens of thousands of homes.

    The current foreclosure process in Colorado is one of blind faith.

    The foreclosure referral is typically nothing more than a one to two-page document simply stating the loan is in default, please foreclose. The referral is provided by the servicing company or a sub serving company. Servicing companies often provide copies of the note with a single line stating please foreclose in the name of xxx. Attorneys rarely inspect the original note or make any additional attempt to determine who the proper party is to initiate the foreclosure.

    Further, the qualified holder statement avows the copy of the note is a true and correct copy of the original. In reality, this copy is rarely true or correct. More times than not, after inspection of original notes, there were additional endorsements that were NOT on the certified true and correct copy. I was extremely and personally concerned how, in the majority of foreclosures, these copies were being used as originals.

    Colorado homeowners deserve more of an equal balance. I currently have many clients who have struggled to determine ownership of the note and have had to fight through the modification process. They shouldn’t have to go through this battle

    Because the Rule 120 hearing involves a fundamental property interest (plaintiffs’ home) the standard of proof before a person’s property is taken should be by “clear and convincing evidence” which should extend to the determination of who is the real party in interest with standing to foreclose. But the Public Trustee in the Rule 120 only requires that the foreclosing Lender present a copy of the Trust Deed and an Affidavit, a form generated by the Lender or its attorney that the lender is the “real party in interest” without requiring that it be attested to under penalty of perjury. No notarized assignment by the original lender to the foreclosing lender of the note need be provided, nor did Citimortgage show that it had actual possession of the note as this court recently held necessary on the issue of who is the real party in interest with standing . In Re MARK STANLEY MILLER No. 11-1232, February 1, 2012. In Carpenter v. Longan, 83 U.S. 271, 274 (1872) the Supreme Court decided a case from Colorado and said “The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Why then is the issue of standing not based on whether the lender could show that it has the original note in his possession to evidence that it is the real party in interest with standing to foreclose? The prevailing requirement, as it now stands in a Rule 120, is in fact no proof supported by an attorney’s affidavit of Qualified Holder which is merely an illusory pronouncement to support a presumption that the lender is the real party in interest with standing to foreclose.
    Moreover, the whole 120 foreclosure process is flagrantly and patently unconstitutional under the 5th and 14th Due Process and Equal Protection Clause of Amendment because it does not allow an appeal, or a jury trial or a counter-claim as explained in Appellants Opening Brief pgs 45 and 46 citing Lindsey vs Normet.
    .ALL OF THE ISSUES AND ARGUMENTS THAT
    ARE IN THE OPENING BRIEF WERE BEFORE THE DISTRICT
    COURT SUFFICIENTLY FOR THE COURT TO DECIDE

    Judge Daniels in his order on the Rule 59e (APPENDIX, pt A)held that he did not misapprehend the cases cited by plaintiffs which supported plaintiffs claim that national banks were governmental actors or that denied plaintiffs’ due process and equal protection arguments. At pgs. 2, 3, Judge Daniels states:
    Thus, a motion seeking reconsideration of the judgment “is appropriate where the court has misapprehended the facts, a party’s Case 1:10-cv-02653-WYD-CBS Document 49 Filed 12/21/11 USDC Colorado position, or the controlling law.” Id. Such a motion “is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.”
    Plaintiffs attempt to make new arguments that could and should have been raised before, such as their argument that they were deprived of due process in Case 1:10-cv-02653-WYD-CBS Document 49 Filed 12/21/11 USDC Colorado Page 2 of 3 the Rule 120 proceeding in state court because Defendants were not required to show standing by clear and convincing evidence. They also improperly attempt to revive an equal protection claim that was not asserted in their First Amended Verified Complaint and which the Recommendation declined to consider.

    [T]hough there is no bright-line rule to determine whether a matter has been raised below, “a workable standard is that the argument must be raised sufficiently for the trial court to rule on it.” In In Re E.R. Fegert, Inc., 887 F.2d 955.
    At Id. P 957 the court said:
    The bankruptcy court did not rule on the applicability of Pearlman or invoke Pearlman in its decision. Nonetheless, it could have. The transcript of the February 13, 1986 hearing clearly shows that Seaboard argued the applicability of Pearlman.

    This court could determine the issues since all the issues and arguments were before the court in “prior briefing” before the order and judgment was rendered.
    In Lebron v. National Railroad Passenger Corporation – 513 U.S. 374, 79 (1995) the court said:
    Our traditional rule is that “[o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below.” Yee v. Escondido, 503 U. S. 519, 534 (1992); see also Dewey v. Des Moines, 173 U. S. 193, 198 (1899). Lebron’s contention that Amtrak is part of the Government is in our view not a new claim within the meaning of that rule, but a new argument to support what has been his consistent claim: that Amtrak did not accord him the rights it was obliged to provide by the First Amendment. Cf. Yee, supra, at 534-535. In fact, even if this were a claim not raised by petitioner below, we would ordinarily feel free to address it, since it was addressed by the court below. Our practice “permits[s] review of an issue not pressed so long as it has been passed upon …. ” United States v. Williams, 504 U. S. 36, 41 (1992). See Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1099, n. 8 (1991); Stevens v. Department of Treasury, 500 U. S. 1, 8 (1991).

    This court can follow the Supreme Court practice in this case because all of the issues and arguments were before the court.
    A ruling on a motion to dismiss for failure to state a claim under 12(b) (6) presents a question of law that the 10th Circuit reviews de novo. Lambert v. Ritter Inaugural Committee, Inc., 218 P.3d 1115, 1119 (Colo. App. 2009). The court must accept as true the plaintiff’s well-pleaded factual allegations and all reasonable inferences must be indulged in favor of the plaintiff. Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984).
    A complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face” in order to survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
    A claim is facially plausible if the “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Plausibility does not depend on any showing of probable or likely success: to the contrary, a claim may proceed even if actual proof is “improbable” and ultimate recovery “unlikely.” Twombly, 550 U.S. at 556; see also Iqbal, 129 S. Ct. at 1949; Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009). Judge Daniels and the magistrate abdicated their duty to draw the reasonable inferences in favor of plaintiffs from the facts and the Supreme Court decisions relied by plaintiffs as was required by the standard of review.
    In Braden v. Wal-Mart Stores, Inc., 588 F.3d 585(8th Cir. 2009) the court said:

    The district court erred in two ways. It ignored reasonable inferences supported by the facts alleged. ***[O]n a motion to dismiss, inferences are to be drawn in favor of the non-moving party.***Twombly and Iqbal did not change this fundamental tenet of Rule 12(b)(6) practice. See Iqbal, 129 S. Ct. at 1949.(B,I,U)

    In Reeves v. Sanderson Plumbing Inc., 536 U.S. 133, 136(2000) the court said in considering summary dismissal, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.
    CITIBANK IS GOVERNMENT CREATED AND
    CONTROLLED CORPORATION AND PART OF
    THE GOVERNMENT ITSELF

    At p. 30 of Defendants Response, defendants state:
    C. The National Bank Act Does Not Convert Private Banking
    Entities Such As Citibank And CitiMortgage Into Federal
    Instrumentalities For Purposes Of Individual Constitutional
    Rights

    The Court in Lebron, at pgs 378-380 said:

    We have held once, Burton v. Wilmington Parking Authority, 365 U.S. 715, 6 L. Ed. 2d 45, 81 S. Ct. 856 (1961), and said many times, that actions of private entities can sometimes be regarded as governmental action for constitutional purpose

    Justice Scalia in Lebron vs National Passenger Railway Car, 513 U.S. 374, 397 said:
    That Government-created and controlled corporations are (for many purposes at least) part of the Government itself has a strong basis, not merely in past practice and understanding, but in reason itself. It surely cannot be that government, state or federal, is able to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form. [B, U]
    In Lebron, at p. 399:
    But it does not contradict those statements to hold that a corporation is an agency of the Government for purposes of the constitutional obligations of Government rather than the “privileges of the government,” when the State has specifically created that corporation for the furtherance of governmental objectives, and not merely holds some shares but controls the operation of the corporation through its appointees.

    In American Bankers Mortgage Corp. v Federal Home Loan Corp. (D.C. No. 94-55967 1995, 9th Cir.) the court decided the issue against the framework of Lebron. The court applied the two prong test that the court in Lebron determined that Amtrak was a federal instrumentality subject to constitutional constraints.
    The first prong required that there was a governmental objective and the second prong required control by the government over the corporation.
    The court held that Freddie Mac satisfied the first prong but not the second prong so as to subject Freddie Mac to the due process clause of the 5th Amendment because the government control over the operations was much less.
    In this case governmental objective was to use national banks to advance the economic public policies of the nations which satisfy the first prong.
    The second prong based on control was satisfied because, as the court in. Easton v. Iowa, 188 U.S.220 (1903) at p. 239: said:
    Our conclusions, upon principle and authority, are that Congress, having power to create a system of national banks, is the judge as to the extent of the powers which should be conferred upon such banks, and has the sole power to regulate and control the exercise of their operations[B,I,U]

    Since the elements which led the Court in Lebron to attach the constitutional constraints to Amtrak could be attributed to CitiBank in this case, Judge Daniels and the magistrate could have reasonably inferred that CitiBank, acting through its subsidiary, is a governmental actor for the purpose of attaching the 5th Amendment Due Process Clause.
    For the first time the Supreme Court clarified the obligations of government by holding Amtrak an instrumentality subject to constitutional constraints. The decision in Lebron presented a new line of inquiry that in the past, and to this day, has shown courts resistant to applying the rationale of Lebron to federal instrumentalities, like national banks, as governmental actors subject to the due process clause when foreclosing against homeowners. Corporations, like CitiBank are federally chartered corporations created under the National Bank Act of 1864(NBA) . CitiBank, as a national bank, is a public not private corporation because it was created for public and national purposes. Osborn vs Bank of the United States 22 U.S. 822, p. 823.
    CitiBank N.A., acting through CitiMortgage, Performs a Public Function
    Where Government Control Over the Corporation is as a Policymaker

    National banks are among the agencies of the United States created to advance the government’s public economic policy goals under the Commerce Clause to engage in fostering commerce throughout the nation which is a purely public function exclusive to the government. At Id p. 861, the court said:
    ***[T]he case of M’Culloch v. Maryland is founded on, and sustained by, the idea that the Bank is an instrument which is “necessary and proper for carrying into effect the powers vested in the government of the United States.”***

    In the OCC’s publication — National Banks and the Dual Banking System (2003) p. 3 it was stated:
    Although a system of national banks would not be created until 1863, the need for and desirability of federal banks and their potential role in shaping a national economy were evident from the very beginning of the United States***

    In First National Bank v. Missouri, 263 U.S. 640 (1924) p.664 the court said:
    “The national banks organized under the act are instruments designed to be used to aid the government in the administration of an important branch of the public service. They are means appropriate to that end. ***”

    “Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations. The public function test is satisfied only on a showing that the function at issue is both traditionally and exclusively governmental.” Kirtley v. Rainey, 326 F.3d 1088, 1093 (9th Cir. 2003)
    At the motion to dismiss stage, plaintiffs need not prove their case only that they advance a plausibly credible scenario.
    CONCLUSION
    The only thing precluded from the state case would be a denial of procedural due process in the foreclosure proceeding under the 14th Amendment. Issue preclusion would not bar any other claim such as the 5th Amendment denial of due process, Equal Protection under the 14th Amendment, and, an action under 42 U.S. 1983 in the eviction process following the foreclosure.
    The Tenth Circuit has never ruled on whether a national bank is a federal instrumentality for the purpose of constitutional rights guaranteed by the Constitution. This is a case of First Impression. The arguments that plaintiffs have presented in the Opening Brief demonstrates they are plausible and rationale. Defendants’ arguments otherwise conflicts with the Supreme Court rationale in Lebron and other closely analogous precedents cited.
    Dismissal is a harsh penalty when plaintiff can remedy any deficiency by amending the complaint. Certainly issue preclusion should not be applied to relieve Citibank and CitiMortgage against plaintiffs’ 5th amendment claim & Equal Protection Claims(arbitrary and disparate treatment with the Colorado FED action)
    Citibank committed a tortious act either in concert or through its instrument-tality with Citimortgage pursuant to a common design. (See Restatement (Second) of Torts, it is defined in §876 “For harm resulting to a third person from the tortuous conduct of another pursuant to a common design*** under that theory Citibank can be jointly and severally liable. Banks will continue through the Foreclosure statute to inflict deep constitutional injuries on homeowners who have constitutional property rights worth defending. If they are not allowed to defend those rights in a Rule 120, they have no rights at all. Homeowners have suffered much already. A proper consideration can avoid the continuing harm to homeowners. Plaintiffs’ should pierce the corporate veil.
    Respectfully submitted,
    ___________________ Date:___________, 2012
    MASON L. RAMSEY

    _________________ Date:___________, 2012
    Judith Mae Neville

  2. UCC 3-420(a) comment 1———-maker-drawer must pay –this rule could be described as “stolen fair and square”

    huge loophole that has caused this mess–a change when ucc wss rewritten–wonder who wanted the change?

  3. This is not legislation, it is a ballot initiative. There was a bill introduced recently to do the same but the banks killed it. So the initiative is Plan B.

  4. @JOANN
    “doesn’t the ability of the modifier to mod need to be determined first? Does the mod legitimize a debt is owed to a party to whom there was no debt owed before the “agreement” that gives up rights is signed? Or legitimize an amount of debt that is not correct? Same question for short sales, deed in lieu and even the reo sales with no clear titl”

    You are correct to be very nervous about waivers each and every time that you engae in a communication with a collection agency representative. You should expect that they will attempt to extract waivers—express and implied. Be wary of the names used—of the facts that they state–often they will state “unless you indicate otherwise then ABC” ——–tricks–bait and switch —it is their stock in trade. ESPECIALLY where they have engaged in a civil fraud–or really have no claim or right—then they will try to bootstrap themselves into power over you by obtaining your unknowing consent–or waivers etc—be espeacially careful of phone conversations with emails supposedly “confirming” your agreement

    you might find one of these that says per our conversation you have agree to deliver a deed to your house —-next thing you know you will receive a motion to compel delivery of your house to them –which states your verbal agreement to transfer your house to X Y or Z——-in exchange for some loose promise to do some flimsy event in the future–guaranteed by some supposed entity that does not even have an office in your state—–

    These things happen–its shocking–its unconscoinable–but they will do it if they think they can get away with it because you fail to state the right defense at the right time—–they really should start every call with a miranda type warning——–the state share of the $25 billion should go to public defense attys—-

  5. from link:

    “If a clerk can come in and say the buck stops here, anything coming through can be reviewed for accuracy,” then banks will be deterred from committing foreclosure fraud, Gardi said. “In a nutshell, I really think there’s been widespread rampant fraud with mortgage securitization.”

    Other than his own experience, however, Gardi said it’s people like Lisa Epstein and foreclosure-focused websites like 4closurefraud and foreclosurehamlet that have kept him in the loop on foreclosure news.

    Gardi, currently an IT director for the state attorney’s office, is one of four Republicans seeking the job. He hopes to bring the clerk’s office up to speed on electronic filing and to make banks pay filing fees when transferring mortgages, which he estimates would bring the county as much as $2 million in revenue.

    Epstein, if elected, would ask her legal team to examine actions and lawsuits being filed by governments against the banks and against Mortgage Electronic Registration Systems (MERS), which created space for mortgages to be traded without recording deeds. Bock said she has already looked at those cases and doesn’t think they’d be successful.

    “I have been cut over 25 percent since 2009. The issue of money is very near and dear,” Bock said. “I’m so underfunded I’m barely able to do what I’m legally required to do, so believe me, if a lawsuit would bring in money, i’d jump on it.”

    Epstein also said she’d call for an audit of all mortgage records. Bock said such an operation would be prohibitively expensive, while Epstein argued it would pay for itself as a result of increased fees — to which Bock countered that such fees range between $6 and $10.

    “Lisa is basically saying she would go through and look at all assignments of mortgages and see if any were improperly signed or perhaps notaries were wrong,” said Bock. “It only arises in defense of a foreclosure action. Why would one go ahead and attempt to find all of the improper assignments of mortgages for people who are paying and not in foreclosure? The cost overweighs the reward for having to look at every document. I have hundreds of millions of documents.”

    To Epstein, the integrity of the records is worth the effort, because disputes are bound to arise. Her campaign, she said, is also an expression of a basic sensibility. “Someone has to start saying: This is fraud,” said Epstein.

  6. test

  7. jan its like saying if there were no bad women there would be no bad men, but i say hold their feet to the fire – theres choice- the color green, or do the right thing

  8. When it comes to mediation and mods and settlements…..doesn’t the ability of the modifier to mod need to be determined first? Does the mod legitimize a debt is owed to a party to whom there was no debt owed before the “agreement” that gives up rights is signed? Or legitimize an amount of debt that is not correct? Same question for short sales, deed in lieu and even the reo sales with no clear title to the buyer. When you apply for the mod or short sale who gets your info and for what purpose?

  9. A bit more CA dreaming:

    Don’t know about MERS DOT or Fannie Freddie mortgages….don’t have any of those. I wonder how many out there like that – maybe many in CA (and the affiliate trustee sales computer doc foreclosure mill attorney companies – operate the same as the mers curtains anyway)….but the “lender” and “beneficiary is clearly one and the same on my DOT. The DOT says:

    “20. Sale of note; Change of Loan Servicer; Notice of Grievance. The note or a partial interest in the note (together with this Security Instrument) can be sold one or more times ….(paren is in the original)

    (A) “Security Instrument” means this document, which is dated October 6, 2006 together with all Riders to this document.….

    Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security….

    23. Reconveyance. Upon payment of all sums secured by this Security Instrument, Lender shall request Trustee to reconvey the Property and shall surrender this Security Instrument, and all notes evidencing debt secured by this Security Instrument to Trustee. Trustee shall reconvey the Property without warranty to the person or persons legally entitled to it”

    The DOT and the note clearly show one party and only one party is entitled to be paid or take a house or when paid reconvey. “(together with this Security Instrument)” Who is that right now and who got paid how much by who and for what in the past?

  10. California dreaming:

    Contingency for CA. Just a sketch of a question by a perhaps idiot. Just saying – just wondering….

    Join 20 or 50 or 100 or 1000. Pick a trust any trust. Anyone in default, in foreclosure or already foreclosed. Same ADOT and NOD. Read Vogan and Johnson . Tila in federal court. (“TILA” 15 U.S.C. § 1641(g) Liability of Assignees. Puts it squarely in that jurisdiction. Bypass state court. Statutory penalty plus fees a done deal times how many. No notice of change in beneficiary by trustee for trust who has the liability. Not necessary to prove harm. Federal claim makes the state claims including wrongful foreclosure and quiet title and other pendant and within federal jurisdiction (see Vogan). No tender because standing and beneficiary status and lawful recipient of benefit of homeowner’s payments (see Johnson) is question not just procedure (Vogan).

    There was harm in the violation of 15 U.S.C. § 1641(g) because there was no way to request beneficiary statement (see Civil Code 2943). The only protection against theft of a mortgage asset that encumbers their home was stripped as if it never existed. Is 2943 ( see 2943(b)) supposed to be equivalent protection for trustors to UCC 3-502 (see also (UCC 3-501(B)(2)(a)) and (UCC 3-310(b)) that is supposed to protect mortgagors in judicial? Strip it away and fraudulent transfers, fraudulent recordings and fraudulent seizure of homes can proceed undetected and unnoticed automatically in 111 days in non-judicial CA. Debt is left unpaid if wrong party got paid or got a house. Payments made from any source to lawful beneficiary reduce the amount owed. Who is that and how much is owned? Did they receive homeowner payments or not? Was there fraud by the assignor? Did they acquire anything “For Value Received” they could sell to a trust “For Value Received at this late date when a mortgage is in default? Who signed the docs and who do they work for? Did they or their bosses know they had no ownership of the mortgage asset they were purporting to sell? What are the statutory penalties for false recording in CA? Does a fraudulent transfer make it possible for the indentured trustee bank to foreclose now?

    Who is on the NOD? Are they servicers and collectors naming defunct institutions who were paid in full long ago as beneficiary? Is there any default to those institutions? Is the servicer and their affiliate trustee sales co governed by Fair Debt Collections Practices Act (15 USC 1692g)? (Regulation Z, Sec. 226.39, Mortgage transfer disclosures. (a) (1) states: “For purposes of this section, a servicer of a mortgage loan shall not be treated as the owner of the obligation”) Who is the right party to comply with California Civil Code Section 2923.5-292? Does a servicer/collector non-beneficary with records 10 times removed with no link to beneficary (even no knowledge of beneficary) qualify as authorized rep of beneficiary? Who is the beneficiary and who is authorized with first hand authority to represent that beneficiary and the records of that beneficiary and declare the default and the amount of the default?

    “What do you want homowners?
    We want to verify payments reached the party entitled to be paid, verify the amount now due the party entitled to be paid, pay the party entitled to be paid or give up the house to the party entitled to receive it. Anyone who has unlawfully received any of the above should be discovered and the rule of law should be applied.

  11. I just filed a RICO and FDCPA lawwuit against Bank of America, MERS and a “signing law firm” for a client yesterday. This is the second RICO and FDCPA suit filed in that state, the first one also being mine. We will see how these go. In the first filed suit, a motion to dismiss was brought upon claim preclusion (res judicata) grounds, despite the fact that the time for motions to vacate and new actions for fraud, in addition to appeals were still pending. That matter has not been dismissed. In the second case, where the issues were pleaded in the foreclosure action directly, the attorneys are likely to claim “litigation privilege,” which I contend, cannot include intentionally committing fraud on the court. NY AG Eric Schneiderman’s case against Wells, Citi, BofA, Chase and MERS is in the stage of briefing on motions to dismiss for claim preclusion (as to homeowner’s being harmed by the practices of MERS and the banks) and something akin to litigation privilege. The original MERS business plan was to act as a veil for bank foreclosures in MERS’ name to conceal the securitization scheme and was stated as a vehicle to save recording fees. (Louisiana, Kentucky and Guilford County, NC are suing MERS on the basis of the stated business plan. We will see how those cases develop.

  12. “Could it be that if the pensioners collectively and the homeowners collectively got together and compared notes they would discover the problem: that when their fund manager put up the money for loans, there were no loans? Or that the investment bank removed 20%–40% of the funds and converted them to fees and profits leaving only a fraction of the money of the pensioners to fund mortgages? Pensioners and homeowners have more in common than they might realize. In fact they might even be the same person. ”

    Investors who are serious about suing for put backs need to “discover” the real reason they are lost money. Shoddy underwriting and inflated appraisals were used for a bigger fraud against them. They were sophisticated enough in the eyes of courts to do their homework for the underwriting and appraisals. When it comes to ownership of a mortgage asset, shoddy or otherwise did they get anything for their trillions on the pennies for dollars or or did they get nothing at all?

    Time for judges to get discovery on their own pensions in “trusts” before they go underwater and have to “sell” short with no clear title and no money still owed to “someone” or before having to pay taxes on their windfall “gain” on the underwater deal. Who did they pay when they made those mortgage payments on time?

  13. QUESTION
    I AM SEARCHING FOR AN EXPERT WITNESS TO DESCRIBE THE OPERATION OF A PARTICULAR TRUST THAT HAS ALREADY BEEN THOROUGHLY RESEARCHED BY COUNSEL—AND JUDICIAL NOTICE OF THE DOCUMENTS FILED

    THE PURPOSE OF THE WITNESS WILL BE TO REVIEW EXISTING AFFIDAVITS AND SECURITIZATION DOCUMENTS ALREADY ASSEMBLED AND FORM AN OPINION AND FACE QUESTIONS IN A TRIAL EXPECTED IN EARLY FEBRUARY.

    THE WITNESS SHOULD HAVE PRIOR EXPERIENCE IN TESTIFYING AND BE ABLE TO RELATE EXAMPLES. THE WITNESS NEED NOT BE AN ATTORNEY–but A RETIRED ATTORNEY WOULD BE HELPFUL.

    THE TRIAL WILL BE IN NOERTHWESTERN OHIO COURT OF COMMON PLEAS/ PREPARATION DOES NOT REQUIRE OHIO PRESENCE–TRAVEL TO TRIAL MAY BE REQUIRED OR MAY TAKE PLACE BY VIDEO DEPOSITION.

    ANY THOUGHTS PLEASE email dcbreidenbach@aol.com

  14. Noting that this changes the previous Colorado set-up where a foreclosing attorney could sign and submit a “statement of qualified holder” since 2006, and noting also the continuing revelations that the “banks” doing the foreclosing are mere officious intermeddlers, with no stake in the liens they recorded anyway, I would shudder to be such attorney, as personal liability is coming back to haunt them for the dollar value of those properties plus substantial damages. I would also shudder to be the insurer on contracts of professional liability insurance for those lawyers. Stick around, folks, the next big wave will be furious lawsuits against the signing attorneys. General maxim: if you are dumb enough to sign a Statement on behalf of a client and not do a due-diligence investigation, expect to be massively sued personally by the victims of your client’s deceit. Ouch.

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