LESSONS: Interesting Maryland Decision Goes Both Ways

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

Azzam v Brunson Opinion

“Because the Defendants’ Petition does not comply with the requirements of Rule 14- 209(b)( 1), the court will grant the Plaintiffs’ Motion to Alter or Amend the order issued on October 16, 2008 and vacate the stay on the foreclosure action. The court’s decision in this regard, however, should not be read as a blanket approval of the foreclosure proceedings against the Defendants. Several documents required under section 7-105.1 of the Real Property Article and Rule 14-207 are not present in the case file. The Plaintiffs should review the requirements of those sections and submit the required documents accordingly.”

Editor’s Notes: This case is a lesson in not reading the bullet points without reading the opinion. On its face, the opinion goes against the homeowners straight down the line, even granting MERS the right to “initiate” foreclosure proceedings. The fact that MERS is not a creditor is not really addressed, and what would happen at an auction of the house after foreclosure is anyone’s guess. Would MERS submit a “bid” as a creditor (i.e., no money changes hands)? Probably, and it will be accepted because it LOOKS like they are the creditor from the court file. Would title be issued to MERS? Probably not as MERS cannot accept title pursuant to its agreement with members. These points were clearly missed by the court and I have no way of knowing all the points raised by the homeowners.

But one thing stands out to me — admissions by the homeowner that pretty much settled the matter in the mind of the Judge from the outset. —

  • It appears as though the homeowners rolled over on whether the note and deed of trust were transferred. We all know that they were not and any attempt to do so now would neither be supported by facts or law — the securitization documents preventing such a transfer, the REMIC statute creating a giant tax problem, and the delivery of the documents being non-existent until the litigation came along — which is why the caveat at the end of the opinion is so important. The Judge saw that the documentation chain was incomplete and instructed the would-be foreclosers to submit the documentation before they go forward with any sale of the property.
  • It appears that the homeowners rolled over on the question of whether payment was due, although they raised the question of to whom the payment might be due. As Katherine Porter has pointed out, the Judges seem to be taking the position that if the homeowner is liable, it doesn’t much matter to whom — that is a matter for the various parties in the securitization chain to work out. The owners of the mortgage bonds beg to differ of course as do several other parties not present in these proceedings and so any argument by the would-be foreclosers is pure sophistry — which the court seemed to have accepted. This is the method by which MERS and other parties finesse what would be requirements under rules of evidence; these are all parties who have absolutely no interest in the financial transaction and in fact are contractually and legally bound not to assert such an interest in the transaction or the ownership of the property, obligation, note or mortgage.
  • “The Brunsons apparently do not dispute the fact that they owe the Plaintiffs over $400,000.00.” If in fact the homeowners made that admission either by pleading it in their case or through other means, the case is over and why shouldn’t it be? They admit they owe money, they admit the amount, they admit they owe it to MERS and they admit they owe it to the transferees, which is an admission that the transfer occurred and that it was done properly. So the court says after that, quite understandably, “Instead, they contest various aspects of the foreclosure procedure pending against them. The Brunsons’ allegations are at times difficult to understand. As best the court can determine, the Brunsons assert that the Plaintiffs have no standing to bring the action, that certain documents filed with the court are improper, that the Plaintiffs failed to file an Affidavit of Ownership, that it was defamatory and emotionally distressing to see their names and their property in the local newspaper foreclosure section and that they were never properly served.” So the Judge is left with the impression that the homeowner admits they owe the money but doesn’t want to pay it because they think they can use legal technicalities to get out of the obligation.

So the moral of the story for homeowners and their lawyers, is get your facts straight, get to know what the essential arguments are that you wish to present to the court and make damn sure you don’t first admit something that you later wish to make an issue of fact. No Judge has very much discretion on the facts if both sides are saying the same thing.

The moral of the story for Judges is that attorneys AND pro se litigants are fallible and your obligation to the state supersedes the rules of court if the laws of the state are about to be broken in ways that will corrupt the legal system and recorded title chains indefinitely. As dozens of Judges in many states have already concluded, the ineffectiveness of the presentation on behalf of the homeowner does not make recorded documents valid. Each time you allow these foreclosures to proceed you are creating the appearance that the parties are properly aligned even if your order says otherwise. This leads to auction sales and “credit bids” that are made by non-creditors, corrupting the title chain. Your question to those that wish to foreclose should be very simple and straightforward: what is the identity of the creditor(s) and how are we protecting both the interests of the creditor and the rights of the borrowers? Or, if you like it phrased another way, will my order be used to corrupt or clear title on this property?

$100 million Class Action Robo Suit Against HSBC and Wells Fargo

jones v hsbc 09-2904rwt Maryland

Reginald Jones is the lead Class Action Plaintiff in a Maryland case alleging robo-signed documents. The well-written complaint was filed by Jon D. Pels, Esq. Bar No. 11883
Lawrence J. Anderson, Esq. Bar No. 11390 Justin Reiner, Esquire Bar NO. 16403 Jennifer O. Schiffer, Esquire 4833 Rugby Avenue, 4th Floor
Bethesda, MD 20814 (301) 986-5570 (T) (301) 986-5571 (F) e-mail: jpels@pallaw.com Counsel for the Plaintiffs

The action is filed October 26, 2010 in Federal District Court, District of Maryland, Greenbelt division. Case # 09-2904 RWT. It recites, as many of these cases now do, actual testimony from witnesses who signed documents they knew nothing about. It lists as causes of action the following:

FIRST CAUSE OF ACTION
–    Solely Against Buonassissi, Henning & Lash, P.C    –
Violation of the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692, et seq.)

SECOND CAUSE OF ACTION
–    All Defendants –
Wrongful Foreclosure: Failure to Comply with Maryland Real Property Article, §§ 7-105.1 or 7-105.2

THIRD CAUSE OF ACTION
–    All Defendants    –
VIOLATION OF THE MARYLAND CONSUMER PROTECTION ACT

FOURTH CAUSE OF ACTION
–    All Defendants    –
BREACH OF CONTRACT – IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

FIFTH CAUSE OF ACTION
–    All Defendants    –
UNJUST ENRICHMENT/CONSTRUCTIVE TRUST

SIXTH CAUSE OF ACTION
–    All Defendants    –
INJUNCTIVE / DECLARATORY RELIEF

SEVENTH CAUSE OF ACTION
–    All Defendants    –
COMMON LAW FRAUD

Mortgage Meltdown: State and Local Action Could Save Everyone

 

  • By slowing down the progression of foreclosures in the courts, judicial sales and bankruptcies, states can effectively bring the fall of housing to a point of equilibrium where at least the opportunity will arise for recovery. It is distinctly possible, particularly with the effect of inflation and devaluation of the dollar, that the numbers can work out even without a strong market. 
  • Borrowers, lenders, investment bankers and owners of CMOs might breathe a sigh of relief in a few years if they cooperate in these procedural mechanisms designed to slow down foreclosures. Kudos to Philadelphia Sheriff John Green who took the stand. That’s not just politics, it is courage. 
  • And it’s not socialism, it is reality: those people who would oppose these measures are arguing against their own interests. These measures are what Government is for — to step in and NOT let the the fabric of society get ripped apart and by the way, to prevent the precipitous decline in YOUR equity in YOUR home even though YOU are not in foreclosure. Do you really think that this mortgage meltdown is not going to cost YOU?
Philadelphia suspends sales of foreclosed homes (more socialism will fix it).

Reuters ^ | March 28th, 2008 | Jon Hurdle 

Posted on March 31, 2008 6:50:08 AM MST by 2banana

PHILADELPHIA (Reuters) – Authorities in Philadelphia will suspend foreclosure sales of homes whose owners have fallen behind on adjustable-rate subprime loan payments — potential relief for tens of thousands of struggling debtors.

Sheriff John Green said on Friday he would halt sales of foreclosed properties in April and would seek a court order extending a moratorium for an unspecified period.

His action follows a nonbinding resolution passed unanimously by the Philadelphia City Council on Thursday calling on Green to stop the sales to give borrowers more time to seek a settlement that would prevent them from losing their homes.

Philadelphia becomes the first U.S. city to halt foreclosure sales in the current crisis, although Cleveland and Baltimore are considering similar measures, said ACORN, an advocacy group for low-income families.

The group said 45,470 subprime foreclosures are expected in Pennsylvania between the third quarter of 2007 and the end of 2009.

Green, the sheriff of Philadelphia city and county, is trying to identify and track homeowners with weak credit histories who took out the loans with initially low repayments but who are no longer able to afford them because their rates have adjusted sharply higher.

Such loans are expected to lead to a flood of foreclosures throughout the United States this year, and have led to severe losses among financial firms trading in securities backed by the mortgages. ACORN estimates 2.2 million mortgage loans will go into foreclosure in 2008 due to the subprime crisis.

“Given the severity and complexity of mortgage foreclosures, a moratorium will allow for more time to identify and help distressed home owners,” Green said in a statement.

  • There is a most interesting by-product of all this is that the refusal of the Federal Government to get involved in the remedy to a problem that was created by intentional non-regulation and non-enforcement at the Federal level: 
  • States are rediscovering their power, their rights and their obligations. The fact is that the Federal government cannot be be trusted (or at least IS not trusted) by most participants in the mortgage meltdown. 
  • The unintended consequence of the mortgage meltdown, which adds to the Katrina fall-out is that states will take action on their own and that they might form regional unions through agreements that will look very much like treaties between sovereign nations.

 

 

States Tackle Foreclosures In Absence of Federal Help

By Dina ElBoghdady and Renae Merle
Washington Post Staff Writers
Wednesday, April 16, 2008; A01

 

This month alone, Philadelphia‘s sheriff delayed foreclosure auctions of 759 homes at the city council’s urging. Maryland extended the time it takes to complete a foreclosure. State leaders in Ohio recruited more than 1,000 lawyers to aid distressed borrowers.

Frustrated by the slow pace of federal action on behalf of struggling homeowners, some states and cities have struck out on their own to stem an alarming rise in foreclosures that has depressed home prices in most parts of the country and eroded local governments’ revenues as property taxes and utility bills go unpaid.

Nine states have committed more than $450 million to “loan funds” aimed at refinancing the mortgages of at-risk borrowers, according to a study by the Pew Charitable Trusts. A handful have brokered deals with major lenders who have pledged to ease terms for some troubled loans. A few states have lengthened the time it takes to complete a foreclosure.

“What the states are saying is: ‘We can’t wait any longer for the federal government. We have to get ahead of this,’ ” said Tobi Walker, a senior officer at the Pew Charitable Trusts. “The states are experiencing this pain more directly than the federal government is.”

 

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