Statute of Limitations: Dade County — Deutsche Loses Foreclosure — Cited for 7 years of delays

For further information please call 954*495*9867 or 520-405-1688

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see Deutsch Crashes on Statute of Limitations in Dade County

For many years judges have turned delays in foreclosures against borrowers usually making some comment about having lived for free without making payments. Those judges have ignored the fact that the delay was caused by the Plaintiff who initiated the foreclosure, who for their own reasons delayed, obfuscated and continually delayed the progress of the case that they were supposed to prosecute, since they filed the lawsuit. In this case, Deutsch lost based upon a statute of limitations that had run and based upon the fact that Deutsch was the reason for the delays.

The fact remains that in most cases, homeowners were urgently asking for modifications in which they would have paid for terms that were based upon economic and legal realities. Those homeowners, usually paying attorneys fees throughout the period of delays, were not getting any “free ride.” They were set to lose their down payment, cost of improvements and the costs of forensic audits and attorney fees. But the item to notice, as we have discussed before, is that where the adversaries are a bank or servicer on the plaintiff side and the condo or homeowners association on the other, the decisions are more likely to run against the bank.

So it behooves the attorneys for the associations as well as the homeowners to act in concert where the possibility exists for defeating the claims of a party like Deutsch who seems to lack ownership and lack authority to collect or enforce.

The case shows the “negative consequences that lenders can face if they go too far with their delay tactics in foreclosure cases,” condo association attorneys Nicholas and Steven Siegfried said in a statement.

Loan servicer American Home Mortgage Servicing Inc. filed suit in January 2007, demanding accelerated payments for the full $1.44 million.

Ironically it was this move for upfront payments that would unravel the lender’s case and cost the bank the million-dollar property, because the condo association successfully argued the demand started a five-year clock for resolving the foreclosure.

The Mystery of Servicer Non Stop Advances

Since I entered the fray as the actual attorney for clients, we are getting down to the nitty gritty. Judges are surprised to learn that the foreclosure case in front of them was filed despite the payments actually received by the alleged creditor through third parties. In other words the case in front of them does not actually present a default from the creditor’s point of view even tough the borrower stopped paying.

The primary payment we are focusing on today is servicer advances which come in different flavors — non-stop, limited and none. Most loans (96%) are subject to claims of securitization regardless of what the current servicer or trustee is telling you. And most of those (my guess is around 75%-90%) come with third party obligors, which is why there is so much confusion. Besides servicer advances, the agents for the trust beneficiaries at the investment bank who sold them the bonds received on behalf of the bond holders, insurance payments and other funds from other contracts designed to limit the risk associated with the terms of the bond repayment of interest and principal.

When you do the math, you can easily see how the “lender” could be overpaid by a multiple that averages 3-5 times, even while the borrower is being pursued for yet another payment or else losing a home. The dirty little secret, the mystery behind these payments is that under common law and statutory law there are potential causes of action against the borrower for such payments, but the actual creditor on the loan has been fully satisfied.

Worse yet, those third parties have waived subrogation or any right of action against the borrower to prevent multiple parties from suing the same defendant on the same debt. The insurers are mad as hell. But the servicers are curiously silent — possibly because they are not really paying the servicer advances which are instead coming from the pool of funds held by the investment banker from the original investment of the trust beneficiaries and the receipt of insurance, credit default swaps, guarantors and even sales to the Federal Reserve.

The lender (Trust beneficiaries) have agreed to lend money on the basis of interest only payments at a particular rate that rarely coincides with any of the loans alleged to be in the pool. Since they were sold the bonds first before the loan was made (see “selling forward”), you can assume fairly safely that the actual lender is the trust or trust beneficiaries, regardless of what was put on the loan documents — which is why I say that none of the loan documents are valid enforceable documents and why the investors have sued the real culprits (investment banks) stating the exact same thing.

In one case I have currently pending in Dade County, Florida, US Bank is putting itself through a ringer because servicer advances have been paid in full to the creditor that they acknowledge is the creditor. The Judge instantly recognized that this defeats the allegation of default, if the creditor has received and accepted payment. The attorney for US Bank allegedly as trustee for the trust beneficiaries is pursuing a strategy of getting the assignment of rents enforced. The statutory requirement is that there be a written demand for rents, which nobody ever made. And it turns out that the Trustee was unwilling to go on record demanding assignment of rents because the beneficiaries were paid in full exactly as set forth in the prospectus and pooling and servicing agreement. A call to the servicer confirmed they were not interested in the rents, but curiously, despite PSA restrictions to the contrary, the new “Trustee” US BANK is pursuing the foreclosure.

The Judge, who wants more proof of the advances which we are only too happy to provide, instantly recognized that if the trust beneficiaries were receiving their expected payment, then there can be no default on the principal, which is prerequisite to BOTH foreclosure and the assignment of rents. In this case there were 52 payments received and accepted by the trust beneficiaries after the alleged borrower default. We were able to get this information through drilling down to loan level accounting in our title and securitization reports. If there is money owed it is not owed to the plaintiff in foreclosure and it is not secured by a mortgage. see www.livingliesstore.com

We have since done the reports on other properties owned by the same client and found out that the same pattern holds true. In the one case we have already argued, more than $70,000 has been received by the trust beneficiaries from servicer non stop advances. Payment is the ultimate defense for an action to recover money. The fun part comes when the Judge starts asking why these payments were not disclosed by the attorney or his client.

There are other sources of third party payments from co-obligors at the inception of the loan. The mystery comes from the fact that the homeowner who signs loan papers has no idea, because it was never disclosed to him/her/them that the lender is not the payee on the note, not the mortgagee on the mortgage, not the beneficiary on the trust deed, but rather the trust beneficiaries who own bonds issued from the REMIC trust (which as I have already reported was never actually funded and never actually received title to the loan).

In other words, the lender has agreed to one set of terms that were never disclosed to the borrower in violation of the truth in lending act, and the borrower has agreed to an entirely different deal — which means that there is no “meeting of the minds.” Both the lender and borrower wanted a completed contract that would be enforceable and where title was clear, but neither of them got it. The solution is to get rid of the servicer and get rid of the investment banker, get an accounting of all funds, repay the investors and work out a reasonable deal with borrowers, most of whom would be willing to sign a mortgage that was enforceable based upon economic reality.

Florida Wrongful Foreclosure Victims Get $2k, Banks get $2,000k

If you are looking for legal representation in S Florida, please call 520-405-1688 where Neil has established an office again after 30 years of practicing trial law in S. Florida.

Editor’s Note: For those who have given, up, moved on and don’t want to fight about it, the $2,000 check they are about to receive is like found money. But it is a surrender to greed, bullying and criminal behavior. The banks are giving the paltry sum of $2,000 in exchange for an average loan of $200,000 which they neither funded nor purchased, but which they sold multiple times, 1000 cents on the dollar.

As I understand it, you can take the $2,000 and also sue for wrongful foreclosure, but you can be sure that despite that, most people will not sue and those who do are going to be met with the argument that we already settled that.

For those interested in getting their check, read the article below or go to the Sun Sentinel or WPTV.com. You’ll get the information you need.

From WPTV.Com by Donna Gehrke-White, Sun Sentinel

Some 167,398 Floridians who lost homes to foreclosure may each get about $2,000 as part of the nation’s largest consumer financial protection settlement.

The checks will be sent out in early 2013, with more than a third going to people who lost homes in Broward, Palm Beach and Miami-Dade counties, estimated Jack McCabe, a housing analyst based in Deerfield Beach.

People need to send in forms to receive the money by Jan. 18. How much people will receive depends on how many borrowers participate.

Already, Minneapolis-based Rust Consulting has “sent out notification postcards to eligible borrowers nationwide,” said John Lucas, a spokesman for the Florida Attorney General’s Office that is helping administer the historic federal, 49-state settlement.

“A low percentage of those postcards were returned, and Rust is conducting further research to locate those borrowers,” Lucas added in an e-mail. People can call toll-free 866-430-8358 to see if they qualify to be part of the settlement.

A former Pompano Beach homeowner who would only give his first name, Mike, said he called and found that he was on the list to get a check. He said he hired too late an attorney to fight his foreclosure. “I was in denial,” he said. “Divorce, job and house — I lost all three.”

In all, about $1.5 billion will be given nationwide to people who lost homes to foreclosure, with Floridians getting about $334 million.

The agreement covers borrowers who lost their homes to foreclosure from 2008 to 2011 and whose mortgage were serviced by Ally/GMAC, Bank of America, Citi, JPMorgan Chase and Wells Fargo.

The five lenders agreed to a massive $25 billion national settlement earlier this year. By August more than 23,000 struggling Floridians had received $1.7 billion in mortgage relief, including principal forgiveness, loan modifications and the suspension of mortgage payments until a later date, according to an interim report by the independent National Mortgage Settlement Administrator. Floridians will ultimately receive about $8 billion in relief.

Part of that includes money to owners who already have lost homes to foreclosure, including those Floridians served fraudulent “robo-signing” foreclosure notices by the five lenders. State and federal investigations found that the banks had routinely signed foreclosure-related documents outside the presence of a notary public and without really knowing whether the facts they contained were correct.

Roy Oppenheim, a foreclosure defense lawyer in Weston, said the projected $2,000 settlement to each foreclosed homeowner doesn’t go far enough in helping those South Floridians who were tossed out of their homes with such fraudulent paperwork.

“They should have been given more money,” Oppenheim said. “Those were criminal acts.”

But the settlement makes no distinction and gives the same amount, regardless of the circumstances of how people were foreclosed on, Oppenheim said.

Other foreclosure victims have been given much more money, he added. Another unrelated foreclosure settlement, for example, gave $25,000 to each soldier who was foreclosed on while fighting overseas, Oppenheim said.

Real estate analyst Jack McCabe agreed that the estimated $2,000 settlement doesn’t fully resolve the pain of foreclosure. “It’s like pocket change,” he said. Some homeowners, for example, lost tens of thousands of dollars in home equity when they were foreclosed on, McCabe said.

Still, it’s some cash: Most Floridians who lost homes to foreclosure won’t get anything, McCabe added. About 400,000 Floridians were foreclosed on between 2008 and 2011 but the settlement affects only 167,398 of them, he said. About 233,000 others had lenders who aren’t part of the agreement.

In addition, there are now about 339,000 more Floridians fighting foreclosure in court. More than a third — or 38 percent— live in Broward, Palm Beach or Miami-Dade counties, McCabe estimated.

In addition another 530,000 Floridians are more than 90 days late in paying their mortgage and face losing their home, he said.

“We’ve still got a full ways to go before we resolve this foreclosure crisis — another two to three years,” McCabe said.

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If you believe that you are eligible for relief and have not received a Claim Form, please contact the National Mortgage Settlement Administrator at 1-866-430-8358, Monday through Friday 7 a.m. – 7 p.m. Central Time

Deny and Discover Strategy Working

For representation in South Florida, where I am both licensed and familiar with the courts and Judges, call 520-405-1688. If you live in another state we provide direct support to attorneys. call the same number.

Having watched botched cases work their way to losing conclusions and knowing there is a better way, I have been getting more involved in individual cases — pleading, memos, motions, strategies and tactics — and we are already seeing some good results. Getting into discovery levels the playing field and forces the other side to put up or shut up. Since they can’t put up, they must shut up.

If you start with the premise that the original mortgage was defective for the primary reason that it was unfunded by the payee on the note, the party identified as “Lender” or the mortgagee or beneficiary, we are denying the transaction, denying the signature where possible (or pleading that the signature was procured by fraud), and thus denying that any “transfer” afterwards could not have conveyed any more than what the “originator” had, which is nothing.

This is not a new concept. Investors are suing the investment banks saying exactly what we have been saying on these pages — that the origination process was fatally defective, the notes and mortgages unenforceable and the predatory lending practices lowering the value of even being a “lender.”

We’ve see hostile judges turn on the banks and rule for the homeowner thus getting past motions to lift stay, motions to dismiss and motions for summary judgment in the last week.

The best line we have been using is “Judge, if you were lending the money wouldn’t you want YOUR name on the note and mortgage?” Getting the wire transfer instructions often is the kiss of death for the banks because the originator of the wire transfer is not the payee and the instructions do not say that this is for benefit of the “originator.”

As far as I can tell there is no legal definition of “originator.” It is one step DOWN from mortgage broker whose name should also not be on the note or mortgage. An originator is a salesman, and if you look behind the scenes at SEC filings or other regulatory filings you will see your “lender” identified not as a lender, which is what they told you, but as an originator. That means they were a placeholder or nominee just like the MERS situation.

TILA and Regulation Z make it clear that even if there was nexus of connection between the source of funds and the originator, it would till be an improper predatory table-funded loan where the borrower was denied the disclosure and information to know and choose the source of a loan, thus enabling consumers to shop around.

In order of importance, we are demanding through subpoena duces tecum, that parties involved in the fake securitization chain come for examination of the wire transfer, check, ACH or other money transfer showing the original funding of the loan and any other money transactions in which the loan was involved INCLUDING but not limited to transactions with or for the fake pool of mortgages that seems to always be empty with no bank account, no trustee account, and no actual trustee with any powers. These transactions don’t exist. The red herring is that the money showed up at closing which led everyone to the mistaken conclusion that the originator made the loan.

Second we ask for the accounting records showing the establishment on the books and records of the originator, and any assignees, of a loan receivable together with the name and address of the bookkeeper and the auditing firm for that entity. No such entries exist because the loan receivable was converted into a bond receivable, but he bond was worthless because it was based on an empty pool.

And third we ask for the documentation, correspondence and all other communications between the originator and the closing agent and between each “assignor” and “assignee” which, as we have seen they are only too happy to fabricate and produce. But the documentation is NOT supported by underlying transactions where money exchanged hands.

The net goals are to attack the mortgage as not having been perfected because the transaction was and remains incomplete as recited in the note, mortgage and other “closing” documents. The “lender” never fulfilled their part of the bargain — loaning the money. Hence the mortgage secures an obligation that does not exist. The note is then attacked as being fatally defective partly because the names were used as nominees leaving the borrower with nobody to talk to about the loan status — there being a nominee payee, nominee lender, and nominee mortgagee or beneficiary.

The other part, just as serious is that the terms of repayment on the note do NOT match up to the terms agreed upon with the institutional investors that purchased mortgage bonds to which the borrower was NOT a party and did not issue. Hence the basic tenets of contract law — offer, acceptance and consideration are all missing.

The Deny and Discover strategy is better because it attacks the root of the transaction and enables the borrower to deny everything the forecloser is trying to put over on the Court with the appearance of reality but nothing to back it up.

The attacks on the foreclosers based upon faulty or fraudulent or even forged documentation make for interesting reading but if in the final analysis the borrower is admitting the loan, admitting the note and mortgage, admitting the default then all the other stuff leads a Judge to conclude that there is error in the ways of the banks but no harm because they were entitled to foreclose anyway.

People are getting on board with this strategy and they have the support from an unlikely source — the investors who thought they were purchasing mortgage bonds with value instead of a sham bond based upon an empty pool with no money and no assets and no loans. Their allegation of damages is based upon the fact that despite the provisions of the pooling and servicing agreement, the prospectus and their reasonable expectations, that the closings were defective, the underwriting was defective and that there is no way to legally enforce the notes and mortgages, notwithstanding the fact that so many foreclosures have been allowed to proceed.

Call 520-405-1688 for customer service and you will get guidance on how to get help.

  1. Do we agree that creditors should be paid only once?
  2. Do we agree that pretending to borrow money for mortgages sand then using it at the race track is wrong?
  3. Do we agree that if the lender and the borrower sign two different documents each containing different terms, they don’t have a deal?
  4. Can we agree that if you were lending money you would want your name on the note and mortgage and not someone else’s?
  5. Can we agree that banks who loaned nothing and bought nothing should be worth nothing when the chips are counted in mortgage assets?

 

Here it Comes!: Banks Commence Aggressive Foreclosure Strategy in South Florida

Starting last month, the mega banks began an aggressive campaign to avoid modification, settlements or principal reductions and seek foreclosures before they are forced to modify.

Yes, we can help at livinglies, but the numbers are so high that there is no way we have the resources to help everyone. I am pitching in too, having become attorney of record for some South Florida residents and with plans to open a Florida office. I have arranged for offices in Hialeah, Coral Springs and Tallahassee. Like you, I am tired of waiting for lawyers who get it. I get it and I am licensed in Florida.

Lawyers, accountants, analysts and others should be seeing this as a major opportunity to do well for themselves and for the owners of these homes by challenging the rights of the those collectors who are taking their money now, or demanding payment or threatening foreclosure. Lawyers have been slow on the uptake and in so doing are potentially setting themselves up for future malpractice claims for anyone, whether they aid or not, who received advice from the lawyer that was not based upon the realities of the securitization scam.

Call 520-405-1688, where you can get help in documenting the fraud, help in drafting the documents, and help in finding a lawyer. If you are a lawyer involved in foreclosure defense, bankruptcy or family law, you need to to start studying the real facts and the strategies that get traction in court.

We are planning a possible new South Florida seminar for lawyers, paralegals and sophisticated investors or homeowners. But we will only schedule it if we get enough calls to indicate that the workshop will at least pay for itself. It is a full day of information, strategy, role-playing and tactics to use in the court room.

Editor’s Analysis: Despite loosening standards for principal reductions and modifications, the foreclosure activity across the country is increasing or about to increase due to many factors.

The bizarre reason why the titans of Wall Street want these homes underwater combined with the miscalculation of the real number does not bode well for the housing market nor the economy. With median income now reported by the Wall Street Journal at 1995 levels, and the direct correlation between median income and housing prices you only need a good memory or a computer to see the level of housing prices in 1995 — which is currently where we are headed. As the situation gets worse, the foreclosure and housing problem will become a disaster beyond the proportions seen today. And that is exactly what Wall Street wants and needs — the investors be damned. Millions of proposals far  in excess of foreclosure proceeds have been rejected and forced into foreclosure and millions more will follow.

Wall Street NEEDS foreclosures — not modifications, principal write-downs or settlements. The reason is simple. They have already received trillions in bailouts from the Federal Government. All of that was predicated upon the homes going into foreclosure. If the loans turn out to be capable of performing, many of those trillion of dollars ( generally reported at $17 trillion, which is more than the total principal loaned out to all borrowers during the meltdown period), the mega banks could be facing trillions of  dollars in liability as the demands are properly made for payback. The banks should not be allowed to collect the money and the houses too. Neither should they be allowed to collect the bailout money and keep the mortgages.

The “underwater” calculation is far off the mark. If selling expenses and discounts are taken into consideration, the value of homes used in that calculation is at least 10% less than what is used in the underwater calculation, which would increase the number of underwater homes by at least 15% bringing the total to nearly 10,000,000 homeowners who know now that they will never see valuation even coming close to the amount owed. The prospect for strategic defaults is staggering —- totaling more than 10 million homes  — or nearly twice the number of foreclosures already “completed”, albeit defectively.

Collier County is getting hit hard, as the foreclosure menace spreads. Wall Street wants the foreclosures, needs the foreclosures and is going to get them — unless they are stopped in the courts. Don’t think you won’t end up in foreclosure just because you are current in mortgage payments. They have playbook that will trick you too into a foreclosure. If anyone tells you to stop making payments, watch out!

by Laura Layden, www.naplesnews.com

Foreclosures are trending up in Southwest Florida.

They’ve been on the rise year-over-year since January in Collier County, hitting their highest number in August — at 295 for the month. In August 2011, there were 229 new foreclosures, 66 fewer than this year, according to the Collier County Clerk’s office.

In Lee County, new foreclosure cases have also ticked up, with monthly increases year-over-year since January. They hit a high of 799 in March, then slowed for four months before spiking up again, according to the county clerk’s office. In August, they jumped to 701 — up from 518 a year ago.

Experts say much of the increase over 2011 is due to a slowdown in filings after last year’s “robo-signing” debacle, which saw mortgage holders and their law firms accused of falsifying documents to speed up the foreclosure process. Now, major banks across the country are moving again on distressed properties, following a $25 billion robo-signing settlement in April.

“What we are seeing now is what they bottled up during the robo-signing controversy. They let it loose once the settlement was done,” said Jeff Tumbarello, director of the Southwest Florida Real Estate Investment Association, which tracks foreclosure trends in Lee County.

Wells Fargo, Bank of America and JPMorgan Chase & Co. were among the big banks that halted their filings last year and they account for more than 60 percent of the filings now, he said.

While new filings rose in Lee and Collier counties in August, nationwide they fell 13 percent after three straight months of year-over-year increases, according to a report by RealtyTrac, based in Irvine, Calif.

However, some states, including Florida, saw sizable increases in new foreclosure filings — or starts — last month.

“Bucking the national trend, deferred foreclosure activity boiled over in several states in August,” said Daren Blomquist, RealtyTrac’s vice president, in a statement. “In judicial states, such as Florida, Illinois, New Jersey and New York, this was a continuation of a trend we’ve been seeing for several months now.”

Increases in new filings in Florida and Illinois pushed their state foreclosure rates to the two highest in the country in August. In most “nonjudicial” states, where foreclosures are usually dealt with outside of the courts, activity continued to slow.

According to RealtyTrac’s most recent monthly report released today , there were foreclosure-related filings on 193,508 U.S. properties in August, up 1 percent from July, but down 15 percent from a year ago. The report tracks three types of filings: default notices, scheduled auctions and bank repossessions.

In August, Cape Coral-Fort Myers ranked 14th in the nation for its foreclosure activity. There were 1,255 properties with foreclosure-related filings, up more than 40 percent from July, but down more than 8.6 percent from a year ago, according to RealtyTrac.

Naples-Marco Island ranked 49th in the nation for its foreclosure activity, with a total of 375 filings of all three types.

From January to August, there were 5,359 foreclosure cases filed in Lee County and another 2,007 were recorded in Collier, according to clerk records.

In all of last year, Collier had 2,270 foreclosure cases filed. Lee reported 5,417. It appears those numbers will easily be surpassed within a month or two, if the current pace of new cases continues.

Marc Shapiro, a Naples foreclosure defense attorney, said some homeowners in Southwest Florida who defaulted on their loans in 2011 haven’t been foreclosed on yet because of the delays that happened after widespread robo-signing was revealed.

“The banks just now are getting to the point where they are getting back on track and getting things rolling again,” he said.

Some of his clients, he said, haven’t paid their mortgage for a year and still haven’t seen their lender take action. He said the uptick in foreclosure filings locally can also be blamed on adjustable rates mortgages, known for short as ARMs. The first five years, there’s a fixed interest rate on the mortgages, then the rate adjusts annually, usually upward.

In Collier, Shapiro estimates there are 8,000 to 10,000 foreclosure cases pending.

In Lee, there’s a backlog of 9,677 cases, according to the Lee County Clerk’s office.

In some instances, Shapiro said, big banks are dragging their feet on cases because they don’t want too many foreclosure properties to hit the market at once, which would only drive down prices and demand. If demand and prices fall off, it will only lead to more foreclosures, encouraging more homeowners to stop making payments on homes that aren’t worth what they owe on them, he said.

“There is a lot of buyers,” Shapiro said. “I think the only exception is gated golf course communities, or communities that have high association dues. I think those are tough to sell … because people are getting away from properties that have high monthly expenses on them.”

Michael Puchalla, an assistant director for the Housing Development Corp. of Southwest Florida, a not-for-profit that offers free assistance to homeowners facing foreclosure, said at an affordable housing conference in Orlando this week representatives for Bank of America, Fannie Mae and Freddie Mac reported their 30-, 60- and 90-day delinquencies were down over last year, but there were more borrowers who are more behind on payments by as much as 36 months.

Through Florida’s Hardest-Hit Fund program, homeowners who are unemployed or underemployed and qualify for assistance can get up to $18,000 to catch up on missed payments and up to $24,000 to make a year of payments. The Housing Development Corp. has helped local homeowners sign up for the program, but its federal funding is limited and may run out by the end of the year.

“We definitely like to help people when we can,” Puchalla said.

Connect with Laura Layden at www.naplesnews.com/staff/laura_layden

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