9th Circuit Inches Toward Decision of “America’s Wholesale Lender”

The issue is jurisdiction. Lawyers filed papers for AWL but AWL was dissolved as a corporation. The lawyers countered with the allegation, on appeal, that AWL was a fictitious name for Countrywide without specifying the location of CW. Hence no diversity of jurisdiction could be supported by the allegations in the notice for removal.

The claim of diversity was not supported by either facts or allegations establishing diversity. This is the common practice of foreclosure mills and their defenders. They simply make a claim and leave it as “implied” that the grounds exist. Attack that, and you can win.

So the issue before the 9th Circuit was whether the Federal District Court had jurisdiction to enter a dismissal of the claims for wrongful foreclosure. That in turn depended upon whether the case had been properly removed from state court by AWL. If it hadn’t been properly removed then the District Judge had no jurisdiction to enter any order other than the ministerial act of remand to the state court.

The 9th Circuit Court of Appeals approached the subject gingerly. Since AWL didn’t exist and there was no viable supporting allegation that it was the fictitious name of Countrywide the answer was obvious. AWL could not remove because it didn’t exist.

The hidden story is (a) the number of times AWL was named by lawyers as the foreclosing party with no reference to CW or anyone else claiming to use AWL as a fictitious name and (b) the number  of entities claiming that AWL was a fictitious name for them.

The real question is why should lawyers enjoy immunity from litigation under “litigation Privilege” when they file not for an actual legal entity  but for a group of vendors who all stand to benefit from the foreclosure? If there is no client why should lawyers be immunized?

see Martinez v AWL Remand

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 EDITOR’S NOTE: BOA and Recontrust, their puppet “substitute trustee” have stumbled into a quagmire and attorney John Christian Barlow has seized the opportunity to shine a light on the illegal foreclosures by BOA and Reconstrust. This might have national implications. 
BOA and Recontrust made all the way through the usual fake auction and some underling signed a Trustee Deed. Under State Law the Trustee is presumed valid, which is to say, properly procured. But Barlow attacked the validity of the sale in the eviction action where BOA sought to obtain possession. As in other cases he recently started fighting, he attacked the validity of the sale. By raising serious issues concerning the auction, “sale” and the pattern of conduct, Barlow succeeded in overcoming the presumption of the validity of the Trustee Deed.
This left BOA with a naked deed that needs to be authenticated and validated by the Utah State Court. BOA and Reconstruct actually stumbled twice by invoking their “right” to Remove the case to Federal Court where the Judges have been friendlier to banks. Tearing apart the arguments one by one, the Federal Judge said that Recontrust and BOA had argued themselves into a corner thus depriving the Federal Court of jurisdiction since this was obviously a matter to be heard in state court, as to whether the eviction could proceed.
The written opinion of the Federal Judge alerted the State Judge to inconsistencies in the positions argued by BOA and Reconstrust. So the whole case now is going to be heard judicially as to whether the eviction is proper — a  finding that is entirely dependent upon whether the Trustee’s Deed will stand up to scrutiny and be sustained — or if the Trustee’s Deed is removed or expunged from the title records because of the various illegal actions with which we are all now too familiar.
Once the Trustee Deed is discredited  (it is already put in doubt by Attorney Barlow and the findings of the Federal Judge), title reverts back to the homeowner and they get to stay in their home and they can negotiate with the real creditor in good faith.
Utah law is not the same, but is similar to many other states. Check with a lawyer before you assume anything or do anything. But the fact remains that removal to state court can be challenged (Motion for remand) and the non-judicial sale can be converted into a judicial foreclosure proceeding — something no banks wants because they must allege and prove things that are simply not true. That it was done in an eviction proceeding is all the more impressive but it is also logical that it occur there because it is not until after the pretender has committed itself in writing to each and every act that they can no longer play musical chairs or musical documents to give the Judge “what he wants.”

(Salt Lake City, UT) – St. George attorney John Christian Barlow, representing homeowners who have lost their home to the Bank of America’s (NYSE: “BAC”) foreclosure machine ReconTrust, may have finally achieved a measure of success in the battle of Utah homeowners against ReconTrust’s illegal foreclosures.

Federal Judge Clark Waddoups Thursday returned to Utah Fifth District Court in St. George a case in which ReconTrust was named as a third-party in the complaint claiming immunity under the National Bank Act in an unlawful detainer action. (ORDER and MEMORANDUM DECISION)

Motion for Remand: Tool for Counteracting the Notice of Removal


COMBO Title and Securitization Search, Report, Documents, Analysis & Commentary GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

SEE FULL MOTION FOR REMAND HERE—> 2011-08-01, Motion to Remand to the Arizona Superior Court for Maricopa County – 2

The form attached is from a pro se litigant whom I consider to be particularly savvy in the ways of Court and the issues at hand. I present it, not as the perfect model, but something that I think is well drafted and potentially successful as a vehicle for reversing the removal of a state court action to federal court. It goes without saying that every Judge wants to clear his docket. The removal notice takes the case off of the State Judge’s calendar, making him happy and places on the calendar of the assigned federal judge, which makes him/her unhappy.

Assumption is the enemy of good tactics. Most pro se litigants and lawyers alike see a notice of removal as the kiss of death in terms of the case ever being heard in state court. And most attorneys are a little more reluctant to take on a federal case, in which all motions and filings must be accompanied by a good memorandum of law, with a few exceptions. It is a fatal error in most instances if you Fail to attach a memorandum of law arguing (a) why what you are filing is the right thing to file and (b) arguing why the merits of the pending matter (not the whole case!) should be decided in your favor.

But the notice of removal while seemingly bulletproof is far from it. Reports from all over the country prove that point, where the Notice of removal is met with a Motion to Remand back to state court and the motion to remand is granted. Getting your case back to state court puts the pretenders at greater risk because the state court judges are more concerned with state laws than the federal judges, just by virtue of what they do every day.

The basis for removal is often specious (false). And like all the other pleadings and exhibits and proffering by lawyers it is often a fraud upon the court. Witness the case at hand where the lawyer who filed the notice stated in the notice that the other defendants were in agreement with removal, but they had already elected to file motions in the state court, thus waiving their right to removal.

In addition to being blatantly false (cause for a Rule 11 frivolous pleading), the filing also might be evidence of the fact that in truth, most pretenders’ lawyers don’t know who they represent. They say they do but they don’t. And that is because of the shell game being played out every day during the litigation process where one party pops up one place as the “creditor” and then another pops up when the first one is knocked down. It’s like a child’s game but the stakes are very high and the practice is contrary to the rules of ethics and discipline of every attorney.

The reason why the lawyers don’t know who they represent is because the banks themselves are confused and the command center, mostly out of Chicago, is poorly designed and works inefficiently. So a law firm gets a request from someone who is NOT the client or potential client in the case at bar, asking for them to defend the case, but the lawyer never actually hears from the actual client or anyone authorized to speak for the actual client. That is why I am a proponent of the Motion to Prove Authority to represent — which nails down the actual client, and prevents the lawyer from asserting representation of other pretenders who obviously have adverse interests. I have seen cases simply disappear when that motion is filed.

Lawyers who represent BOA and other such banks would do well to remember that these cases might come back  and haunt them for knowingly presenting false information and frivolous pleadings to the court. While it is true that only a handful of states have passed rules that require the lawyer to vouch for the proffers made in court and the actual evidence offered, it is already in the rules of ethics and conduct of every state that a lawyer may not present evidence or make any statement that he knows is false or that he would know if he had done the due diligence that is required of every lawyer before they go into court.

At this point it seems that lawyers for the pretender banks are ignoring the basic elements of their ethical duties and disciplinary rules and should be held to task administratively through the Bar Association grievance procedure as well as being held financially accountable by the Courts for having breached an element so basic to court procedure.

I will not stop until Justice Prevails!!

by Tracey T. Wilson

The Wells Fargo Bank, N.A. vs. Sandra A. Ford was NOT a Pro Se case. Sandra A. Ford was defended by Legal Services of New Jersey, Inc., attorneys; Ms. Jurow and Rebecca Schore and the case was decided January 28th 2011. The case in New Jersey that WAS defended and won Pro Se was Deutsche Bank vs. Tracey T. Wilson. Tracey T. Wilson was the Pro Se defendant and the case was decided ninedays earlier on January 19th 2011 in favor of the Pro Se defendant.
To ignore the case Deutsche Bank vs. Tracey T. Wilson allows concealment of the following facts and truths in the case not disclosed to the public:
• Tracey T. Wilson et al, Pro Se defendant was the first Appellate case decided in the State of NJ in a foreclosure matter in favor of the Defendant. The appellate decision was on January 19th, 2011 and was not approved for publication since defendant was Pro Se and not an attorney.
• Defendant was Pro Se due to the fact that upon the onset of the initial foreclosure action in October 2007 every attorney she contacted in the State of NJ refused to take the case to defend the foreclosure action and told her that there was nothing she could do. Defendants did not qualify for free Legal Services of New Jersey due to family incomes being over the Legal Aid Services guidelines. Finally, an attorney who actually accepted the case in August of 2008 was never heard in the court when his Motion to Reconsider Summary Judgment was not granted by the court. Judge quoted that “defendant did not deserve a second “bite at the apple” simply because they now have an attorney.
• Defendants owned the property with her husband of 25 years since 1994 and had previously paid over $370k in mortgage payments through the years.
• Plaintiff’s counsel submitted a Certification with a signature from the plaintiff’s attorney. This submission / signed document was not based upon personal knowledge, but was based upon incompetent hearsay by the plaintiff’s attorney.
• Attorneys’ for plaintiff never proved that they were the lawful holder to the note and mortgage prior to their commencement of foreclosure action. As of today Plaintiff has still not proved that they were a holder in due course.
• The court did not dismiss foreclosure complaint filed by plaintiff, but however within the next six months from March 2008 through August 2008 were allowed several adjournments for plaintiff to produce assignment of mortgage and original mortgage note. As the months progressed awaiting the plaintiff to produce valid documentation, within those six months plaintiff produced an assignment that was signed by Laura Hescott, alleged AVP of Washington Mutual and notarized by Bethany Hood, in the State of MN; A certification from Ann Garbis; and a final certification from Janine Timmons on August 29th 2008. Laura Hescott and Bethany Hood were at that time employees of LPS and are now known to the public as Robo-signers who have admitted fraud and not having any personal knowledge. The certification from Janine Timmons was accepted by the court on August 29th 2008, without allowing defendant discovery. The court granted Summary Judgment to the Plaintiff. Defendant was denied due process.
• Defendant obtained attorney to file a Motion to Reconsider, however, as mentioned in earlier bullet points this motion was denied in October 2009.
• Defendant asked her attorney to Appeal the Final decision and attorney told her he would NOT write appeal and then provided incorrect dates of final decision, documentation, due dates, etc.
• With no other choice defendant Tracey T. Wilson filed her own appeal Pro Se in December 2009.
• Plaintiff never responded to Appeal.
• The case was placed on the calendar for the Appellate Judges on November 3rd, 2010.
• The Appellate Court rendered their decision on January 19th 2011 in favor of Pro Se Defendant and the case was REVERSED AND REMANDED back to the lower court. Same Judge who presided over the case since 2007.
• Unfortunately, within the thirteen month time period when the appeal was submitted December 2009 and Appellate Court decision on January 19th 2011, a Sheriffs sale notice was placed on my home December 16th 2009 less than two weeks after my appeal was submitted with a sale date of January 6, 2010.
• Findings reveal that my home was sold to the bank at sheriffs’ sale in February 17th 2010 for $100.00.
• The home was sold to a third party (believed to be an investor) in June 2010 for $262,000.00 to cure the debt to prevent the sheriff sale, the plaintiff was asked to pay in excess of $550,000.00 which included tagged on erroneous fees b y the bank.
• Other illegal tactics such as the mortgage never being filed in the County Clerk’s office and altered files of tax record lot and block numbers exist.
• As of today, there is no property and I have been told there is nothing I can do to ever get my home back. The case should be dismissed since my home was foreclosed upon illegally and there is no property however the Judge has now requested a trail for June 2011 for the “Discovery” that was never granted to me in the first place. The court no longer has jurisdiction since there is no equitable property, however plaintiff will once again be given the chance to produce documents he was not able to produce to the Appellate Court nor during the four years this case has gone on for.
• The banks want a pass on the law and want to skirt the law; there are no laws currently on the books that have allowed for the injustice done to our society. – Standing is a major issue.
• The Republic has to be for the people and by the people. The banks are attacking a main component of the constitution which is protection of its citizen’s property rights. They did not take care of their due diligence. The whole premise of home ownership has been eroded.
• This is why they want to conceal my case and not hear the truth.
• I will not stop until Justice Prevails!!

Tracey T. Wilson

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