Plaintiffs discover new findings of Fraud and challenge res judicata in foreclosure case

Posted on April 11, 2017 by Neil Garfield
Here is one example of how not to litigate. Calling the Judge names and pretending to know more about the law than the Judge does is a sure fire way to lose. The Homeowners should have argued that they brought no counterclaims and then argued that they were prevented from litigating properly the issues that they raised in defense of the foreclosure.
Whatever you think of res judicata, they are doctrines that DO exist and not just in mortgage foreclosures and related claims and counterclaims. Blaming the court for applying applicable rules is not a way to turn a loss into victory.
Editor’s note: Keyser v. Stern & Eisenberg PC
see: https://www.pacermonitor.com/public/case/11435878/KEYSER_et_al_v_STERN__EISENBERG_PC_et_al#
by Nicholas Malfitano

PHILADELPHIA – Plaintiffs in a mortgage foreclosure action have challenged the ruling of a federal judge who ruled the doctrine of res judicata effectively barred their claims from proceeding in court.

 On Feb. 27, Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District Court of Pennsylvania ruled to dismiss the federal litigation brought forward by plaintiffs Kathleen and Harry Keyser against defendants Stern & Eisenberg P.C., Edward J. Donnelly, Christina C. Viola, Ocwen Loan Servicing, LLC, Francis S. Hallinan and U.S. Bank National Association.

Initially, the Keysers alleged that the defendants forged a note and mortgage, and subsequently relied upon the fraudulent documents to secure a state court judgment in mortgage foreclosure.

“In the state court action, the Bucks County Court of Common Pleas granted a motion for summary judgment in favor of defendant U.S. Bank, the holder of the note and mortgage in question, and plaintiffs’ property was subsequently sold to U.S. Bank at sheriff’s sale,” Rufe said.

Defendants Ocwen, U.S. Bank National Association, Stern & Eisenberg and Viola moved to dismiss the instant complaint, and Rufe eventually issued a ruling stating the doctrine of res judicata served to bar the plaintiffs’ claims.

“All of plaintiffs’ claims are rooted in the theory that they never executed the note and mortgage at issue, and that the documents relied upon by defendants in the state court action were fraudulent. Plaintiffs’ claims in this action are entirely based on the state court action, which resulted in a final judgment on the merits involving defendants. Because plaintiffs’ grievances could have been raised in the state court action, res judicata bars plaintiffs from re-litigating them in this Court, and the complaint will be dismissed with prejudice,” Rufe said in her February decision.

Now, the Keysers believe Rufe’s ruling utilizing res judicata and the Rooker-Feldman doctrine was “a fallacious interpretation” and filed a statement for reconsideration with the Court to argue as such, sparing no verbiage in doing so.

“This judge ruled and invoked res judicata which is a clear gross sign of incompetence or outright ignorance on the part of this person masquerading as a judge. This judge allowed forged and fraudulent promissory, forged and fraudulent assignments and absolutely no authentic evidence to be in compliance with the Pa. Rules of Evidence 901, 902, 1002, 1003 or 803.6, and violated the bank’s own terms and conditions specifically listed in the fraudulently created promissory note,” the Keysers’ statement read, in part.

“Res judicata, like Rooker-Feldman, is just a protective shield used to protect the debt purchasing bandits in their illegal use of forged and fraudulently created notes. These criminals are making financial contributions to the pensions account and these attorneys sell the property and pocket the lion’s share of the money for them for the bank has collected on a fraudulent mortgage default insurance package,” the statement also read.

The plaintiffs stated their intention to file a fraud complaint with the Federal Bureau of Investigation (FBI) as well with the U.S. Attorney’s Office in response to Rufe’s ruling.

The defendants are represented by Evan Barenbaum of Stern & Eisenberg in Warrington, plus Brett L. Messinger and Brian J. Slipakoff of Duane Morris, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-02298

http://pennrecord.com/stories/511100807-plaintiffs-challenge-federal-s-judge-ruling-of-res-judicata-in-foreclosure-case

Filed under: foreclosure | Tagged: , , , |

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15 Responses

  1. Neil Garfield, on April 19, 2017 at 1:12 am said:

    Thank you for your kind words and keep up the good fight! Never give up hope and we wish you the best.
    The Lending Lies Team

  2. Tim Beeding, on April 18, 2017 at 10:10 pm said:

    yes i would like to go after none best douchebank the realtor who bought my home for nothing and just sold it 496,988.00 $here in cali. aswell! and on a personal note ,neil garfield and team you guys are amazing when all seemed lost hope, finances sanity these postings these comments saved my life ,all bs aside been in a 5 year battle with depression and dealing with ppl looking at us like we were scumbags losing our family home of over 70 years ,all because we wanted to upgrade for the next generation.yeah we owned it outright and got swindled by indymac.ok nuff rambling keep the faith and the good hard fight alive much love and respect to all of you guys!

  3. Almost There..., on April 12, 2017 at 4:07 pm said:

    Neil, We are getting close. We have 100% proof of fraud and lack of standing (if the Judge agrees). Does anyone know of recent case law that awards attorney fees to the Defendant in a successful Summary Judgement, based on lack of standing? I received an opinion that there is recent case law, that if you win your defense for lack of standing, then since the Court agrees that there is no legal contract binding the two parties, then the Plaintiff is not obligated to pay the Defendant’s legal fees.
    Any thoughts?

  4. Iam Lazarus, on April 12, 2017 at 9:48 am said:

    Wow … Godspeed to the “Keysers”!! (putting truth to tale..)

    NOW … do the “Keysers” understand that “res judicata” DOES NOT APPLY in the Bankruptcy Court, when objecting to an alleged creditor’s proof of claim (“POC”)?!?

    It is well established in the Bankruptcy Courts, that “objecting” to an alleged creditors proof of claim, is not subject to “res judicata,” because, even though a state court may have ruled in favor of foreclosure … that ruling has nothing to do with whether or not the claim is allowed as secured under federal bankruptcy law.

    Since the loan was allegedly securitized, [all] assignments of the security instrument following the “cut-off” date, are assignments to alleged “servicers” by definition, since the obligation cannot be transferred or assigned following securitization.

    “Servicing-rights” can be transferred from entity to entity under a servicing-contract, but not the “Note” itself. “Servicing-rights” can never transfer by recorded assignment of the security.

    Title 15 U.S.C. Chapter 41 Section 1641(f)(1) & (2): a “Servicer” [shall not] record an assignment of the security unless the servicer is or was the owner of said secured obligation, and, (2) a “Servicer” [shall not] record an assignment for the convenience of servicing said obligation.

    (“Keyser”) should’ve been allowed to proceed with their FDCPA claim, under section 1692(f)(6) regardless, but, the bankruptcy rules are written to avoid such a scenario from being a “blanket-claim,” when it is not.

    God bless us all…

  5. Al M Murry, on April 12, 2017 at 12:59 am said:

    I am fighting 2 of the worst in Colorado….Wells Fargo and Ocwen…not to mention the court Judges in the Fed arena. They hear nothing and only assist the banks and their attorneys…..Protecting their assets. We need help in the fight … it is tough to win over corruption….they hold all of the jokers in the deck

  6. Sunman, on April 12, 2017 at 12:57 am said:

    Ditto to Jennifers question and comment.
    I lost my home of 32 years to similar fraudulent circumstances. Judge did not care that U.S. Bank had no legal claim to foreclose.

  7. Al M Murry, on April 12, 2017 at 12:53 am said:

    1031 Yes…on Semper Fi……how do we bring in the Marines? Nothing else is working and it is hard to remain faithful anymore. the more evidence you bring into court…the more they disallow or poo poo everthing. Please Neil…help all of us in the 10th

  8. Al M Murry, on April 12, 2017 at 12:43 am said:

    Neil…I have a full examination and investigation from Forgery Fraud…I believe in their outcome after examination…I really like Gary Michaels and I trust his investigation…Sure hope the courts in Colorado like it too.
    The Judges are paid off here in Colorado as they are everywhere. How does one get any justice. Even rescissions are always shut down. They, the judges do not believe in Supreme Court Decisions….Please educate them as well….what do we do Neil????

  9. Al M Murry, on April 12, 2017 at 12:36 am said:

    1031 myself and others are in Colorado…It is very corrupt…please send or post more info on the george case

  10. Neil Garfield, on April 11, 2017 at 8:32 pm said:

    You may want a document examiner to take a look at the copy for signs of fabrication. You might try: http://www.forgeryfraud.com/

  12. anonymous, on April 11, 2017 at 6:47 pm said:

    Our servicer sent us a copy of the promissory note without our signatures ! It’s in black and white print out – for not to be traced. How do we prove this? Anyone have an idea?

  13. Poppy, on April 11, 2017 at 5:12 pm said:

    Same crap, different day. In North Carolina this is the 5 try in State Court with the same players, same paperwork. The Magistrate allowed it. In NC Magistrates need NO legal training, they can be retired school teachers, fireman, fisherman, etc and are appointed…and this nonsense about each missed payment creates a new default, bullshit! After acceleration, there is no payments to be made. These judges need to be sanctioned and fined for incompetence too. 10 years in folks…loan was originally defaulted by New Century, not paying their warehouse line of credit and I can prove it!

  14. 1031frscom, on April 11, 2017 at 4:40 pm said:

    Semper Fi. Thanks for continuing with the grate job Neil. We Americans need to really fight all this racketeering that is going on my all the nasty lenders like Bank of America and all its co-conspirators. I hope to continue a great fight here in Colorado when I file with a great lawfirm on the FIVE (5) loans that Bank of America made all the false claims, had their attorneys provide copies of actual forged, fabricated, phony, and even “robo-signed” documents that the dumb judge in my intitial case to stop a foreclosure were totally ignored and dissallowed. We all have to work together and get more and more people on board to fully support the 10th Circuit Court Ruling in Colorado last year in the George Case and people should be smart and not be sold out in any supposed “class action suit”. That is my humble take on things anyway. Semper Fi

  15. Jennifer Harjo, on April 11, 2017 at 4:39 pm said:

    Would this also apply to California?
    Since we lost our house already. Can we go after them now since this is new details we could have used?

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