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.

Padget v OneWest – IndyMac Provides some insight into RESPA remedies

The Ocwen Court provided an example for clarity: “Suppose an S & L signs a mortgage agreement with a homeowner that specifies annual interest rate of 6 percent and a year later bills the homeowner at a rate of 10 percent and when the homeowner refuses to pay institutes foreclosure proceedings. It would be surprising for a federal regulation to forbid the homeowner’s state to give the homeowner a defense based on the mortgagee’s breach of contract.” Ocwen, 491 F.3d at 643-44.

Padget-One west bank dba Indymac

Editor’s Note: The assumption was made that One West owned the loan when it was clearly securitized. One West used the fact that Plaintiff admitted that One West was the owner of the loan and therefore undermined Plaintiff’s case against One West as a debt collector which requires the actor to be collecting for the benefit of a third party.

This is where the rubber meets the road. either you are going to master the nuance introduced by securitization or you are going to let the other side have a field day with misrepresentations that you have admitted are true.

PADGETT, Plaintiff,

Civil Action No. 3:10-CV-08
United States District Court, Northern District of West Virginia, Martinsburg

parties filed an Agreed Order in the bankruptcy court resolving IndyMac’s motion to lift the automatic stay. (Id. at ¶ 14). Pursuant to this Agreed Order, the plaintiff’s mortgage was deemed current as of May 1, 2008, and the one payment for which the plaintiff was in arrears was added onto the end of the mortgage. (Id. at ¶¶ 15-
16). The first payment due under the Agreed Order was due in May 2008. (Id. at ¶ 17). The plaintiff made the May 2008 payment in a timely fashion and has made his monthly mortgage payment each month after May 2008, up to and including the date of the filing of the plaintiff’s First Amended Complaint. (Id. at ¶¶ 18-19).

In March 2009, Defendant OneWest Bank, F.S.B. (“OneWest”) purchased IndyMac, whereupon IndyMac Mortgage Services (“IndyMac MS”) became a division of OneWest. (Id. at ¶¶ 20-21). On July 16, 2009, OneWest, doing business as IndyMac MS, sent the plaintiff a letter claiming he was one month behind on his payments. (Id. at ¶ 22). In response, on July 28, 2009, the plaintiff wrote to OneWest, enclosing a copy of the Agreed Order from his bankruptcy proceeding and requesting that OneWest supply him with documentation that he nevertheless remained one month behind. (Id. at
¶¶ 24-26). Again, on August 3, 2009, and September 16, 2009, IndyMac MS sent letters to the plaintiff alleging he was behind on his mortgage payments. (Id. at ¶¶ 28-29).

OneWest continues to assess monthly late fees against his account and has informed credit reporting agencies that the plaintiff’s mortgage is delinquent, though plaintiff alleges he is current on his monthly mortgage payments.

OneWest argued that all of the plaintiff’s claims for relief were preempted by the Home Owners’ Loan Act of 1933, 12 U.S.C. § 1461, et seq. (“HOLA”). (Id. at 4).

Motion to Dismiss denied in part and granted in part. Motion to Strike denied. Plaintiff was allowed to proceed.

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