How to Beat the Shell Game

The bottom line is that the foreclosures are a sham. The proceeds of the foreclosure never go into a REMIC Trust because there is neither a REMIC election nor a Trust, much less any entity that outright owns the debt, note or mortgage. In order to win, you must know that the securitization players use sham conduits and fictitious names at will, leaving an ever widening gap between the real and the unreal. It’s the gap that enables so many homeowners to win.

Without getting too metaphysical about it, I am reminded by what Ghandi said when he won India’s independence against all perceived odds. He said that in the end truth always wins out. Always. Of course he didn’t say when that happens.

Let us help you plan for trial and draft your foreclosure defense strategy, discovery requests and defense narrative: 202-838-6345. Ask for a Consult.

I provide advice and consultation to many people and lawyers so they can spot the key required elements of a scam — in and out of court. If you have a deal you want skimmed for red flags order the Consult and fill out the REGISTRATION FORM. A few hundred dollars well spent is worth a lifetime of financial ruin.

PLEASE FILL OUT AND SUBMIT OUR FREE REGISTRATION FORM WITHOUT ANY OBLIGATION. OUR PRIVACY POLICY IS THAT WE DON’T USE THE FORM EXCEPT TO SPEAK WITH YOU OR PERFORM WORK FOR YOU. THE INFORMATION ON THE FORMS ARE NOT SOLD NOR LICENSED IN ANY MANNER, SHAPE OR FORM. NO EXCEPTIONS.

Get a Consult and TERA (Title & Encumbrances Analysis and & Report) 202-838-6345 or 954-451-1230. The TERA replaces and greatly enhances the former COTA (Chain of Title Analysis, including a one page summary of Title History and Gaps).

THIS ARTICLE IS NOT A LEGAL OPINION UPON WHICH YOU CAN RELY IN ANY INDIVIDUAL CASE. HIRE A LAWYER.

===========================

I recently received an email from someone dealing with “Shellpoint” servicing. I thought it might be beneficial for everyone to see my response, to which I have added some edits.

Shellpoint is an apt name. It is a Shell company organized to deflect inquiries and claims from the real actors. The “point” is how they stab homeowners. Modifications are pointless in most cases, designed to place the homeowner in a hopeless economic situation in which they cannot avoid foreclosure.

Mods are intentionally convoluted and virtually nothing is happening on their side except the process of asking for more documentation when you have already sent or they already have it. Some mods are “granted” but only after they have raked the homeowner over the coals and they offer ice in the inter, along with their outright theft of the debt from the actual legal or equitable owner.

The new lender, effectively, is the so-called servicer who in turn has a Purchase and Assumption Agreement with the underwriters of so-called mortgage bonds or certificates. They are not bonds and they are not actual certificates. While those underwriters do business in the  fictitious name described as a REMIC trust when dealing with homeowners, they do not use the fictitious name when they create the illusion of ownership of the debt, note or mortgage.

CWABS is Countrywide. CW was an aggregator only in the loosest sense of the word. Most believe that CW acquired the loans and then was the seller to REMIC Trusts. The entire scheme was a sham. CW did not acquire any loans and was therefore not the seller of the debt, note or mortgage. The REMIC Trust was legally nonexistent and /or had no transaction conducted in its name in which the Trustee of the so-called REMIC Trust was entrusted with your loan to manage on behalf of beneficiaries who also were nonexistent.

The investors who purchased certificates issued in the name of the fake trust are not beneficiaries. The Trustee has absolutely no power to even inquire as to the affairs of the Trust much less actively manage them. Read the PSA — all the way through.

Although there are a few exceptions the investors disclaim any right, title or interest to the debt, note or mortgage. If they were beneficiaries they would have rights to the loans and rights regarding the management of those loans.  The named Trustee would have fiduciary duty to the investors regarding those loans. In truth the underwriter of the certificates was actually the issuer acting under the name of the nonexistent trust which was neither the direct nor indirect owner of any assets, much less loans. And the Trustee is merely a rent-a-name to make it look like a serious financial institution was at the head of this scheme.

Companies like Shellpoint claim their power is derived from the nonexistent trust that does not own the debt, note or mortgage and which will not receive the proceeds of foreclosure.

If their powers and rights are said to derive from the existence of the Trust, then they have no power. They have no right to collect anything or enforce anything unless a specific owner of the debt, note and mortgage is (a) identified and (b) the owner gives specific rights and direction to an agent (servicer) to conduct business in the name of the owner or for the benefit of the owner of the debt, note and mortgage.

Proving this to a judge who is at best skeptical of such claims is essentially impossible. That is because the defense narrative would require digging deep into the books and records of the trust (there are none) and deep into the records of the previous and current servicers to determine where they sent money that they collected from homeowners supposedly pursuant to the terms of a promissory note. The current state of such narratives is that they are deemed not credible or “not proven” even though they are true. And accordingly the attempts at such discovery and investigation are thwarted by the court sustaining objections to such discovery.

Those objections are lodged by lawyers who claim that they represent the named claimant. That is also a misrepresentation in many cases because the claimant they have named does not exist and has no direct or indirect power or rights over the debt, note mor mortgage. Since the claimant does not exist, that should be the end of the matter. But once again rebuttable presumptions come to the rescue of the lawyers of nonexistent clients. And once again those presumptions are not rebuttable without getting proof from sources who simply will never comply even if ordered by a court.

But just to be clear, this is a possible basis for suing the lawyers who filed such claims either knowingly or by failing to conduct basic due diligence. Any normal lawyer would not knowingly take directions from a third party in which they were to file suit or start a nonjudicial foreclosure on behalf of a nonexistent entity that neither exists nor has any interest in the subject matter of litigation. So later when you file suit for wrongful foreclosure, abuse of process, RICO or whatever you decide are proper grounds and causes of action, consider the foreclosure litigation to be  a vehicle for laying the groundwork for actions in fraud, misrepresentation and negligence.

So the lawyers who win these cases enter the courtroom knowing that the defense narrative is true but they do not assert it as a claim they must prove.  They are adept at keeping the burden of proof away from their client homeowner. The winning lawyers basically follow the track of keeping the burden of proof on the claimant who seeks foreclosure. The lawyers know that the the claimant simply will not and cannot answer certain questions that can be used to undermine the legal presumptions on which the entire claim is based, contrary to the actual facts. The winning defense lawyers are the ones who use timely objections and good cross examination (i.e., constant follow-up). In the end the witness or the document will collapse under its own weight.

 

Fl S.Ct: Roman Pino vs. Bank of New York

CHECK OUT OUR EXTENDED DECEMBER SPECIAL!

What’s the Next Step? Consult with Neil Garfield

For assistance with presenting a case for wrongful foreclosure or to challenge whoever is taking your money every month, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, Tennessee, Georgia, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s Analysis: Lawyers and Homeowners like to curse out the judicial system every time they get a decision they don’t like. The Pino case is one of them. “HOMEOWNERS LOSE” is the headline across the board in all media. Homeowners did not lose. Civil procedure won, and the homeowners were, once again, on the wrong side of it, although they were inadvertently encouraged by the Florida Supreme Court who took jurisdiction even after the case was dismissed and settled.

My guess is that the justices who decided to take the case thought there was some meat in there that would prevent false claims in court. This court, composed of progressive judges, was clearly looking for a way to chastise the banks for filing forged, false, fabricated and misleading documents. After reviewing it, they realized they couldn’t do that without throwing the whole judicial system out of whack — something that didn’t bother the banks but does bother the Supreme Court of any state.

But in every opinion that seems negative to homeowners there are oft-ignored instructions on how to do it right. Here we have Tom Ice, attorney for the homeowner and a competent one at that, against David Stern’s operation that was so dirty his own investors sued him for selling them a bunch of crap. Stern’s firm was known to have a full fledged document fabrication and forgery system which was used with impunity because once they got caught they dismissed the claim.

The issue taken up by the Florida Supreme Court was whether the Court could retain jurisdiction of a case that was dismissed and settled for the sole purpose of punishing a party who lied or submitted false documents into evidence. Much as the court probably would have liked to impose kangaroo justice on the banks and Stern, it reluctantly concluded that it just didn’t have the power (jurisdiction) to do that. To say otherwise would make every voluntary dismissal non-final. Thus any settlement would never be final.

Ice is wrong when he says that the Supreme Court doesn’t care about fraud in the judicial system. They cared enough to take a shot at stopping it with an ill-advised grab at jurisdiction to end this madness. We can’t change the law, the rules of procedure or the laws of evidence to suit the result we think should be the outcome. We are required, in a nation of laws, to arrive at the destination of justice using existing law and procedure. There is little doubt that the Florida Supreme court is very concerned about fraud in the judicial system and that it will do something about it as soon as the the existing laws and rules allow it.

There is a hidden good message in this decision. If the party who committed the fraud got nothing as a result of it, then the dismissal cannot be reversed. THAT is precisely the center of gravity of the homeowner defense: the banks did get millions of homes submitting fraudulent  documents and therefore are subject to various causes of action for having done so. In addition, the fact that the original transaction, for the most part, was never supported by consideration, making both the note invalid and nullifying the illusion of a lien imposed by the mortgage, means that the homeowner who attacks directly the basic premises of the foreclosure action using established law and procedure will be greeted by a friendly audience a the Florida Supreme Court. The headline should have been “Florida Supreme Court Opens door to damage claims for fraudulent documents.”

In short, the borrowers didn’t lose and the Court, far from being unsympathetic to the light of borrowers made that abundantly clear:

Because Pino sought no other available sanctions, and the case has since been resolved between the parties, we need not reach the question of whether the trial court should be able to award monetary sanctions under the circumstances of this case. We therefore approve the result reached by the Fourth District affirming the trial court’s denial of Pino’s motion.

“While affirming the decision of the Fourth District, we also understand the concerns of those who discuss the multiple abuses that can occur from fraudulent pleadings being filed with the trial courts in this state. While rule 1.420(a)(1) has well served the litigants and courts of this state, we request the Civil Procedure Rules Committee review this concern and make a recommendation to this Court regarding whether (a) explicit sanction authority should be provided to a trial court pursuant to rule 1.110(b), even after a case is voluntarily dismissed, (b) rule 1.420(a)(1) should be amended to expressly allow the trial court to retain jurisdiction to rule on any pending sanction motions that seek monetary sanctions for abuses committed by either party during the litigation process, or to allow the trial court explicit authority to include attorney’s fees in any award to a party when the dismissed action is reinstated, or (c) to adopt a rule similar to Federal Rule 11 to provide explicit authority for the trial court to impose sanctions.”

Florida Appellate Courts Are Getting It — and so is everyone else

COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary

LIVINGLIES BLOG

41737977-Servedio-v-Us-Bank

LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL

EDITOR’S COMMENT: It all comes down to “black letter law.” None of this is new. It’s just that the pretender lenders thought they could side-step the process by making it LOOK like they were complying with the law. The failure to comply is not just indicative that they tried to short-cut the process like many people are saying in the media.

  • That would mean that they actually DO “own and hold and the note,”
  • that they COULD “tender the original promissory note to the trial court,” or
  • that they COULD prove a case to “re-establish the lost note under [Florida] State statute [673.3091].
  • It would also mean that they could show and prove that the original note was payable to the would-be forecloser OR
  • that the note had a special indorsement in favor of the forecloser
  • [OR, if it isn’t subject to the restrictions against blank indorsements in the securitization documents, that they had a blank indorsement.
  • In the securitization environment it would mean that they could show and prove that the would-be forecloser was the assignee of an assignment “from the payee to the plaintiff”
  • OR in a motion for summary judgment that is unopposed (no questions of fact in dispute) that they have an affidavit from a competent witness to prove the would-be forecloser is the owner and holder of the note.

There are several common-sense presumptions behind each one of these black letter law requirements. This isn’t technical stuff. It is substantive. If the party seeking foreclosure is not the creditor and doesn’t lawfully hold and own the note then THEY can’t foreclose no matter when the last payment was received from anyone including but not limited to the borrower, third party co-obligors set up in the securitization documents or government bailouts. If the loan is subject to foreclosure it can ONLY be by a party fitting the above description as stated in the above case in a per curium (unanimous) opinion of the appellate panel. The reason is not just that we have rules and you can’t pick and choose which rules you will follow and which you can’t.

The reason is that in foreclosure there is a change of ownership and title to the property. Any subsequent party, innocent or otherwise, must know with certainty that if they buy that property or lend money using that property as collateral, that the title is clear, marketable and free from any cloud or defect. Without that certainty, commerce comes to a virtual standstill. Not only would real estate transactions be thrown into chaos, but the principles behind the requirements for foreclosure also are applied to any other debt or the transfer of anything else, tangible or intangible. So if ANY court allows for even the possibility that disinterested parties could legally intervene in the chain without proving their right to do so, all of commerce comes to a halt.

Which brings us to my final point in this article: in the context of securitization, there is no such proof. That’s why they are faking it. If they had it, they would show it. The reason they don’t have it is that it never existed. What they want the courts to do NOW is to allow them to substitute fiction for fact. They want courts to allow them to submit either fake documents or documents that have no legal effect. The basic problem they have is that the evidence of transfers and change of ownership of the note does not reflect the original liability of the borrower nor the existence of the original real creditor. The original payee was not the lender. Thus the mortgage or deed of trust secures a note that is invalid. They can’t bring a legal action to modify the note to reflect the real lender because that would be admitting that they ever made the proper disclosures required under federal (TILA) and state lending laws.

The ONLY way they can correct the title problem, the chain of ownership problem (title and obligation) is by getting BOTH real parties in interest to agree and sign something ratifying such an arrangement or by getting a court to issue a judgment cramming such an arrangement down the throats of investors and borrowers alike. Since their problem is that the property was never worth what was represented and the loan terms, now revealed in all their glory, are not viable, it is impossible to imagine that the investors would agree to anything other than getting their money back or that the borrowers would agree to anything other than a correction of the terms and principal of the obligation to reflect the true value of the property and the losses incurred between the time of closing and the present time.

As brilliant as some of the schemers are, they based their entire framework on a completely unworkable presumption and thought they had the “risk” problem solved. Now Wall Street finds itself the cowardly owner of the risk — because they tried to split the obligation, note and mortgage each from the others in such a complex way, with repeated iterations of “assignment” of receivables that it is in reality not possible to correct in the real world. They convinced the government to be the lender of last resort when the crisis started, but now the FED is asking for its money back , as are the investors. The borrowers are filing individual and class action suits, and the opinions from the bench are turning against Wall Street in strong, angry language from the bench.

Every day it gets worse for Wall Street’s prospects. All eyes are on Wall Street and how they could survive. The answer is that Wall Street will survive because there are hundreds of investment banking firms that would be only too happy to fill the void left by the resolution of the megabanks. There are 7,000 community banks and credit unions, many with assets in the tens of billions, that could and would easily fill the retail banking void. The electronic funds transfer backbone already exists and is in use in all of these firms and banks.

LLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLLL

“It is the culmination of the worst civil procedure nightmare we’ve ever imagined,” said Anne L. Weintraub, a real estate attorney at Sarasota’s Syprett Meshad law firm, referring to the recent appellate rulings.

From Stopforeclosurefraud.com

florida-ruling-might-further-complicate-loan-crisis

RULING MAY COMPLICATE LOAN CRISIS

Ruling might further complicate loan crisis

Published: Tuesday, November 9, 2010 at 1:00 a.m.
Last Modified: Monday, November 8, 2010 at 10:04 p.m.
.

( page of 4 )

Appellate courts in Tallahassee and West Palm Beach have admonished lower courts for allowing foreclosures to proceed without the proper paperwork and kicked the cases back to circuit judges in a move some experts say could further complicate the foreclosure crisis.

At issue is the use of sworn affidavits that convinced circuit judges the borrower’s original promissory note had been lost in the shuffle but that the lender still had a right to foreclose. Experts likened it to a used car dealer selling a vehicle using a photocopy of the title.

Circuit court judges have been using such promises to issue summary judgments, which have sped cases along at a time when the courts have been inundated.

Observers say the rulings from the 1st District Court of Appeal in Tallahassee and the 4th District Court of Appeal in West Palm Beach could become templates for more challenges.

It is unclear just how many cases could be affected — the chief judge in this region’s circuit says foreclosure paperwork is carefully scrutinized by teams of case managers — but the rulings come as the system already is dealing with disruptions from self-imposed bank moratoriums to deal with questionable paperwork.

“It is the culmination of the worst civil procedure nightmare we’ve ever imagined,” said Anne L. Weintraub, a real estate attorney at Sarasota’s Syprett Meshad law firm, referring to the recent appellate rulings.

What happens next could have widespread implications for the more than 200,000 Floridians who have lost their homes to foreclosure since January 2007, including the more than 12,000 in Manatee, Sarasota and Charlotte counties.

GOLDMAN FRAUD DECISION: a watershed — ramifications across the financial sector.

EDITOR’S NOTE: This decision is buried in the flurry of articles regarding the liability of investment banks for fraud in connection with upstream or downstream activity. This decision stands for the proposition that Goodman had sufficient knowledge to know or it SHOULD have known that there was fraud in the activities that were subject of the lawsuit. The position is that the megabanks didn’t commit fraud — somebody else did it. But that position is now undermined by the judgment that was entered in this case and the affirmation of the judgment. The appraisal fraud and other predatory, deceptive and fraudulent lending tactics that occurred in connection with the underwriting “loans” as part of the issuance and selling of the bogus mortgage bonds that in fact had nothing attached to them is now fair game.

From the wording of the decision from the Judge, he will have more to say about the parties at some future time. We’ll be watching for it.

November 8, 2010, 11:29 am Investment Banking | Legal/Regulatory

Judge Upholds Award Against Goldman

By SUSANNE CRAIG

A federal judge on Monday denied a request by the investment firm Goldman Sachs to throw out a record-setting arbitration award that was levied this year.

Goldman was ordered in June to pay $20.6 million to unsecured creditors of the failed hedge fund manager Bayou Group to settle claims that the bank had ignored signs of fraud at the fund.

The bank appealed the decision in July, and on Monday, Judge Jed S. Rakoff of Federal District Court in Lower Manhattan rejected Goldman’s request to vacate the award.

“After full consideration of the parties’ briefs and oral argument, the court hereby denies the petition to vacate the arbitration award and grants the cross-petition to confirm the award,” Judge Rakoff wrote. “However, final judgment will not be entered in this case until the court issues an opinion setting forth the reasons for this ruling.”

A Goldman spokesman declined to comment on Monday.

Ross Intelisano, a partner at New York law firm Rich & Intelisano who represented Bayou creditors, said, “We are looking forward to investors finally getting some of their money back from this tragic fraud.”

Bayou collapsed in 2005, and the firm’s former chief executive,
Samuel Israel III, is serving 20 years in prison for fraud. Mr. Israel pleaded guilty to misrepresenting the value of Bayou’s funds and defrauding clients out of more than $400 million. Goldman cleared trades for Bayou, which was based in Connecticut, before it collapsed. Bayou’s unsecured creditors’ committee filed the arbitration claim against Goldman in 2008.

During the arbitration, Goldman denied accusations that it had ignored signs of wrongdoing. Goldman is not out of options; it can appeal the decision to the United States Court of Appeals for the Second Circuit.

The award was considered a watershed and could have ramifications across the financial sector.

Wall Street firms, which handle billions of dollars in trades, assert that their job is simply to clear trades, not police the clients. If upheld, the award could raise the standard among banks for clearing trades.

FORM: BAC ASSIGNMENT FRAUD ON THE COURT COMPLAINT‏

SERVICES YOU NEED

9.29.10Florida-Motion-Fraud-on-the-Court-Bank-of-America-vs-Julme-Case-CACE09-21933-05[1]

Editor’s Note: Matis Abravanel, practicing in South Florida has drafted and filed a motion that is a classic in its construction. The result was that BAC caved, which is good, but what really draws my attention to this work is its masterful presentation. Lawyers would do well to look carefully at this pleading. He carefully weaves the securitization facts into a language and context that any Judge can understand. And unlike the opposition he has the goods. So do you, if you know how to use them.


Matis H. Abravanel, Esq.

4closureFraud

A Smith Hiatt and Diaz case in Broward County Florida…

Some short background information on this pleading, it’s an emergency
motion to cancel a final sale based upon Fraud on the Court. This
client came to us a month before his final sale date, and already had
a default and a final summary judgment entered against him. Besides
non-compliance with the pooling and servicing agreement, we uncovered
notary fraud (see paragraphs 1-4 and attached exhibits) and a
fraudulent assignment and endorsement of a note that was dated in
January of 2006, to U.S. Bank National Association, as successor
Trustee to Bank of America, National Association as successor by
merger to LaSalle Bank, N.A.. However its interesting to note that
Bank of America didn’t take over LaSalle Bank until October of 2007,
over 1 and 1/2 years later! (see paragraph 17 and attached exhibits).
Once the ‘pretender lender’ received our motion they immediately
called us and canceled the sale, and we haven’t heard back from them
since. We are waiting to have our evidentiary hearing for Fraud on
the Court.

Matis H. Abravanel, Esq.

4closureFraud

Fla Ct Finds JP Morgan Intentionally and Knowingly Committed Fraud on The Court

SERVICES YOU NEED

As basis for the legal case, WaMu had submitted an assignment of mortgage, which however the court just found never actually belonged to WaMu, and instead was carried on the books of Fannie Mae.”

EDITOR’S NOTE: It’s an old story to us but it’s news to everyone else. Yes it IS fraud, and all you have to do is look, inquire and aggressively press the opposition.

Just like Wells Fargo in Massachusetts, GMAC now in 23 states so far, the story is always the same — the lawyer doesn’t know who he/she represents and doesn’t care, the documents submitted are fabricated and forged and the representation that the would-be forecloser is a creditor is a plan and simple lie — only revealed AFTER they are pressed to support their claim of standing, real party in interest, holder of the note etc.

ALL the foreclosures and notices of sale, motions to lift stay, motions for summary judgment start the same way. Some party picked at random from the securitization chain comes in and starts a foreclosure sale (non-judicial) or a foreclosure lawsuit after documents are fabricated showing a chain of title that never happened and doesn’t exist.

MOST of the time borrowers and the Courts are intimidated by the presence of a “Bank” (which is neither acting as a bank nor was it the lender, creditor, or payee at any point in the process of the closing of the transaction between the homeowner as borrower and the investor as lender).

SOME of the time, borrowers are successful in their challenges to the foreclosure. The reason is not that the rest of the foreclosures are proper, right, legal or equitable. The reason is that in those cases where the borrower is successful they managed to get the Judge to pause long enough to actually look at the documents being presented and to allow the borrower to inquire as to their authenticity and authority. If there is such an inquiry the borrower wins. If there is no such inquiry, the borrower loses.

ALL of the proceedings in which foreclosures were initiated in both non-judicial and judicial states are fatally defective and has resulted in a pile of debris called “title” when in fact no title has been transferred, no credit bid was ever submitted and no deed was issued with authority from a party who possessed the right to convey title.

Each day an angry judge realizes he/she has been duped for years by these antics of people he knew and trusted. Criminal acts, contemptuous of the law and the Courts have been committed in millions of foreclosures.

None of the agencies that are charged with responsibility to regulate the activities of these banks, institutions or companies has lifted a finger to impose existing rules and regulations that were designed to prevent this behavior and punish it when it occurs. None of the Courts want to apply clear Federal law on the subject in the Truth in Lending Act and the Real Estate Settlement and Procedures Act. Because when it comes right down to it, the facts unfolding in the lead news stories and in the court orders being entered are downright unthinkable.

We have now come to that fork in the road where we must stop anyone who asks”why would they lie?” and simply admit that it has ALL been a BIG LIE and we have been living this lie for 10 years, hence the name of this blog.

So there is no mistake about it I am stating the opinion that NONE of the foreclosure sales on residential property in which the loan was originated as part of a securitization scheme are valid. They are void. If you think you lost your home you’re wrong no matter what anyone tells you. Any lawyer who studies this instead of responding from a knee-jerk “I remember that issue from law school” will come to the same conclusion — the title chain is not just clouded, it is fatally defective. That means the foreclosures were void according to existing law. It is the same effect as if I signed a warranty deed conveying title to YOUR home now. Such a document might LOOK good, but it is fraudulent, because I don’t have the title to convey much less warrant that it is good title. But if Judge won’t let you speak or won’t even consider the possibility that I would flat out lie and file a totally fraudulent deed, I’ll win and you’ll lose. That’s what is happening.

JPMorgan Brings Foreclosure Case In Mortgage In Which It Was Just A Servicer, Court Finds Bank Committed Fraud

Tyler Durden's picture

Submitted by Tyler Durden on 09/16/2010 16:37 -0500

An interesting development out of Jean Johnson, Circuit Judge in Duval Country, Florida, where in a case filed by JPMorgan/WaMu, as Plaintiff, and law firm of Shapiro and Fishman, attempted to evict defendants Hank and Marilyn Pocopanni. As basis for the legal case, WaMu had submitted an assignment of mortgage, which however the court just found never actually belonged to WaMu, and instead was carried on the books of Fannie Mae.

Once this was uncovered is where this case gets really interesting: In point 5 of the filing we read that the “plaintiff predecessor counsel made “clerical errors” when it represented to the Court that the plaintiff was the owner and holder of the note and mortgage rather than the servicer for the owner.”  Which means that only Fannie had the right to foreclose upon the Pocopannis, yet JPM, as servicer, decided to take that liberty itself.

And here the Judge got really angry: “The court finds WAMU, with the assistance of its previous counsel, Shapiro and Fishman, submitted the assignment when [they] knew that only Fannie Mae was entitled to foreclose on the Mortgage, and that WAMU never owned or held the note and Mortgage.” And, oops, “the Court finds by clear and convincing evidence that WAMU, Chase and Shapiro & Fishman committed fraud on this Court” and that these “acts committed by WAMU, Chase and Shapiro amount to a “knowing deception intended to prevent the defendants from discovery essential to defending the claim” and are therefore fraud.

While the Judge in this case did not also find declaratory damages against the plaintiff, and while the case of the defendants is unclear (we would expect Fannie to file a foreclosure act on its own soon enough), the question of just how pervasive this form of “fraud” in the judicial system is certainly relevant. Because if JPM takes the liberty of foreclosing on mortgages as merely servicer, when it has no legal ground for such an action, who knows how many such cases the legal system is currently clogged up with. The implications for the REO and foreclosures track for banks could be dire as a result of this ruling, as this could severely impact the ongoing attempt by banks to hide as much excess inventory in their books in the quietest way possible.

Our advice to any party caught in a foreclosure process is to immediately go to www.fnma.com and use the Lookup Tool to see if Fannie is still mortgage owner of record, if a foreclosure suit has been brought up by a plaintiff other than the GSE. (Editor’s Note: He’s not exactly right here. All you will know is that FNMA claims on its site that it is the owner. The “owner of record” is the party who shows up in the title search of the only place that counts — the county recording office — which is why we tell everyone to get that from us or another party. 99 times out of 100 the “owner of record” is the originating lender who is often out of business — and THAT is why I insist on repeating that these loans are not and never were secured and that no security instrument has ever or could be filed for perfecting a lien on the home.)

We are confident quite a few other such cases will promptly appear.

MERS-Deutsch Slammed on Quiet Title

9.09.10 NY MERS NO AUTHORIY DISMISSED

MERS tried to Quiet Title. In so doing they paved the way for millions of homeowners to sue MERS to quiet title. The net result is that the encumbrance is invalid. That means the debt, the obligation, MIGHT exist, but it is NOT secured by the home. I’d say I told you so, but that would be immature. 🙂

All of that is important but Judge Jeffrey Arlen Spinner went a lot further and made his mark on the issue of bogus affidavits that say nothing but which are used by foreclosure mill attorneys who spout off about what the affidavit says or what it proves. Judge Spinner flatly says the affidavit would be insufficient even if MERS had an interest, which it does not. He clearly states the law which is valid not only in New York, but EVERY state and federal jurisidiction, but which has been ignored by a majority of judges until now:

To establish a claim of lien by a lost mortgage there must be certain evidence (e.s.) demonstrating that the mortgage was properly executed with all the formalities required by law and proof of the contents (e.s.) of such instrument. … Here Burnett’s affidavit simply states that the original mortgage is not in Deutsch Bank’s files, and that he is advised (e.s.) that the title company is out of business. Burnett gives no specifics as to what efforts were made to locate the lost mortgage…. More importantly, there is no affidavit from MLN by an individual with personal knowledge of the facts that the complete file concerning this mortgage was transferred to Deutsch Bank and that the copy of the mortgage submitted to the court is an authentic copy of Torr’s Mortgage.” (e.s.)

EDITOR’S NOTE: The importance of this decision and its citations cannot be over-stated. Now we are getting down to the nub of it. It isn’t enough for the  foreclosure lawyer to make empty allegations contained nowhere in pleadings, affidavit or proof. The foreclosure lawyer is seeking affirmative relief — enforcement of the note and sale of the property. If he can’t plead the case in good faith then he doesn’t belong in court. And if he does plead the case he must prove it within the boundaries of ordinary rules of evidence. A competent witness must exist who is wiling to testify under oath and who actually appears to do so. They musts possess PERSONAL knowledge (not what someone told them) of the facts about which they are going to testify. Business records exceptions are very restrictive as they prevent the other side from cross examining a live witness (a basic constitutional right of due process).

  • “Trust me” is not a substitute for real evidence.
  • If they want to prove the obligation, they need evidence.
  • If they want to prove a default, they need evidence,
  • if they want to prove the note is evidence of the obligation, they must prove that assertion with evidence that the note is the whole deal (which is NEVER the case in a securitized loan).
  • If they want to prove a lost note they need evidence that the note was in existence, when it was in existence, how it came into existence, and what happened to it — not just say we had it, but now we don’t.
  • And watch out for those “original notes.” Many of them are fabricated using simple software and a color printer. If there are no impressions on the back of the page, even the note they present is probably NOT the original and is probably a fabrication printed off a laser or dot matrix printer. Close examination will show even a novice the truth of this statement.

SUBSCRIBE TO LIVINGLIES FOR DISCOUNTED SERVICES, NEWSLETTER AND FREE TELECONFERENCES

ORDER LOAN SPECIFIC TITLE REPORT, COPIES OF DOCUMENTATION AND ANALYSIS HERE

ORDER SECURITIZATION REPORT COPIES OF DOCUMENTATION AND ANALYSIS HERE

The MERS Mortgage Twilight Zone- Judges Not Afraid to Do What’s Right

GREAT POST BY MATT WEIDNER

even if the instant motion was timely, the explanations offered by plaintiff’s counsel,
in his affirmation in support of the instant motion and various documents attached to exhibit F of
the instant motion, attempting to cure the four defects explained by the Court in the prior May 2,
2008 decision and order, are so incredible, outrageous, ludicrous and disingenuous that they
should have been authored by the late Rod Serling, creator of the famous science-fiction
televison series, The Twilight Zone. Plaintiff’s counsel, Steven J. Baum, P.C., appears to be
operating in a parallel mortgage universe, unrelated to the real universe.

plaintiff’s counsel claims that the assignment is valid because Ms. Gazzo is an officer of MERS, not an agent of MERS. Putting aside Ms. Gazzo’s conflicted status as both assignor attorney and employee of assignee’s counsel, Steven J. Baum, P.C., how would the Court have known from the plain language of the September 10, 2007 assignment that the assignor, Ms. Gazzo, is an officer of MERS? She does not state in the assignment that she is an officer of MERS and the corporate resolution is not attached.

The MERS Mortgage Twilight Zone- Judges Not Afraid to Do What’s Right
Posted on July 17, 2010 by Foreclosureblues
Editor’s Note…This discusses the newly famous “Twilight Zone” decision by a judge in favor of a NY homeowner. What it would be like to be the first attorney or homeowner on your block to enter….”The Twilight Zone.”

http://foreclosureblues.wordpress.com

The MERS Mortgage Twilight Zone- Judges Not Afraid to Do What’s Right
Today, July 17, 2010, 2 hours ago | Matthew D. Weidner, Esq.

http://www.4closureFraud.org
Discussion
“The instant renewed motion is dismissed for untimeliness. Plaintiff made its renewed motion for
an order of reference 204 days late, in violation of the Court’s May 2, 2008 decision and order.
Moreover, even if the instant motion was timely, the explanations offered by plaintiff’s counsel,
in his affirmation in support of the instant motion and various documents attached to exhibit F of
the instant motion, attempting to cure the four defects explained by the Court in the prior May 2,
2008 decision and order, are so incredible, outrageous, ludicrous and disingenuous that they
should have been authored by the late Rod Serling, creator of the famous science-fiction
televison series, The Twilight Zone. Plaintiff’s counsel, Steven J. Baum, P.C., appears to be
operating in a parallel mortgage universe, unrelated to the real universe.
Rod Serling’s opening
narration, to episodes in the 1961 – 1962 season of The Twilight Zone (found at
http://www.imdb.com/title/tt005250/quotes), could have been an introduction to the arguments
presented in support of the instant motion by plaintiff’s counsel, Steven J. Baum, P.C. – “You are
[*7]traveling through another dimension, a dimension not only of sight and sound but of mind. A
journey into a wondrous land of imagination. Next stop, the Twilight Zone.”
With respect to the first issue for the renewed motion for an order of reference, the validity of the
September 10, 2007 assignment of the subject mortgage and note by MERS, as nominee for
CAMBRIDGE, to plaintiff HSBC by “Nicole Gazzo, Esq., on behalf of MERS, by Corporate
Resolution dated 7/19/07,” plaintiff’s counsel claims that the assignment is valid because Ms.
Gazzo is an officer of MERS, not an agent of MERS. Putting aside Ms. Gazzo’s conflicted status
as both assignor attorney and employee of assignee’s counsel, Steven J. Baum, P.C., how would
the Court have known from the plain language of the September 10, 2007 assignment that the
assignor, Ms. Gazzo, is an officer of MERS? She does not state in the assignment that she is an
officer of MERS and the corporate resolution is not attached.
Thus, counsel’s claim of a valid
assignment takes the Court into “another dimension” with a “journey into a wondrous land of
imagination,” the mortgage twilight zone.”

New York trial court judges Arthur Schack and Jeffrey Spinner have received international attention for their “courageous” opinions denying foreclosure to banks when the banks present absurd foreclosure cases in front of them and demand judgment.

The really absurd thing about all the attention these judges have gotten is that there isn’t anything courageous about the opinions at all. Not to diminish at all the good work of these judges and the other judges that are actually challenging the absurd standards of the foreclosure mills–because they really are acting courageously–the point is that opinions like the ones they get attention for could be written by every single circuit court judge in this state if the judges would take a deep breath, step back from their courtrooms and really think about what they are doing.

Sometimes we all need to take a step back and view our world and our work from a different perspective. I implore each of you to read the attached MERS Mortgage Twilight Zone opinion. Print this opinion out and share it with every judge you come in front of. Share the opinion with the new senior judges.

They may scoff and disregard you at first, but you’re not seeking a “kill” right there. You may not convince that judge to change his or her perspective on the spot, but I am convinced that if the judges take this opinion home and read it not in the pressured environment of their courtrooms, but in the quiet space of their homes, they will start to see absurdity playing out in their courtrooms. I’ve learned how important it is to share my work with my significant other and with folks who are not immersed in this world. Recognition is the first step. Solutions come next. Read the opinion in its entirety and think about how it applies directly to each of the cases you find yourself involved in…

Excellent Motion for Fraud on Court

motion for fraud on court Matis Abravanel

by  Matis H. Abravanel, Esq.

Some short background information on this pleading, it’s an emergency motion to cancel a final sale based upon Fraud on the Court.  This client came to us a month before his final sale date, and already had a default and a final summary judgment entered against him.  Besides non-compliance with the pooling and servicing agreement, we uncovered notary fraud (see paragraphs 1-4 and attached exhibits) and a fraudulent assignment and endorsement of a note that was dated in January of 2006, to U.S. Bank National Association, as successor Trustee to Bank of America, National Association as successor by merger to LaSalle Bank, N.A..  However its interesting to note that Bank of America didn’t take over LaSalle Bank until October of 2007, over 1 and 1/2 years later!  (see paragraph 17 and attached exhibits).   Once the ‘pretender lender’ received our motion they immediately called us and cancelled the sale, and we haven’t heard back from them since.  We are waiting to have our evidentiary hearing for Fraud on the Court.

Matis H. Abravanel, Esq.
Loan Lawyers, LLC.
www.FIGHT13.com
1 888 FIGHT 13

MOTION PRACTICE: US Bank Tossed Out for Fabrication of Documents, Failure to Respond to Discovery and Fraud Upon the Court

harpster US BAnk Tossed Out for Failure to Respond to Discovery and Fraud Upon the Court

Plaintiff has failed to produce answers to the Interrogatories for a period of 26 months, between the time the Interrogatories and the Request for Production were served on January 8, 2008 and the date of the hearing on the Motion to Compel took place on March 1,2010. Additionally, the court finds that the Plaintiff failed to produce responses to the Request for Production propounded in July 2009.

Defendant’s Motion in Limine/Motion to Strike was based on an allegation that the Assignment of Mortgage was created after the tiling of this action, but the document date and notarial date were purposely backdated by the Plaintiff to a date prior the filing of this foreclosure action.

The court specifically finds that the purported Assignment did not exist at the time of filing ofthis action; that the purported Assignment was subsequently created and the execution date and notarial date were fraudulently backdated, in a purposeful, intentional effort to mislead the Defendant and this Court. The Court rejects the Assignment and finds that is not entitled to introduction in evidence for any purpose. The Court finds that the Plaintiff does not have standing to bring its action. (See BAC Funding Consortium, Inc. ISOAIATIMA v. Genelle Jean-Jacques, Serge Jean-Jacques, Jr. and U.S. Bank National Association, as Trustee fo rthe C-Bass Mortgage Loan Asset Backed Certificates, Series 2006-CBS (2nd DCA Case No. 2f)~08-3553) Feb. 12,2012.)

The Assignment, as an instrument of fraud in this Court intentionally perpetrated upon this court by the Plaintiff, was made to appear as though it was created and notarized on December 5, 2007. However, that purported creation/notarization date was facially impossible: the stamp on the notary was dated May 19,2012. Since Notary commissions only last four years in Florida (see F .S. Section 117.01 (l )), the notary stamp used on this instrument did not even exist until approximately five months after the purported date on the Assignment.

%d bloggers like this: