Financial Double Jeopardy and Illegality of Securitization

Editor’s Note: to most Judges and most lawyers the thought that a home could be foreclosed by the wrong party, or that there could be a declaration of default on a satisfied mortgage, and that these things could lead to sale of a home by a bank or other party that doesn’t own it to someone who also doesn’t own it — all these things are counter-intuitive. If certainty is a measure of confidence in the marketplace everyone has been certain about real property transactions which must be recorded in the property recording office of each county  in which the property is located.

So when you go into court or challenge the pretender lender out of court, they have the advantage of knowing that any Judge who hears your pleas is first going to assume that your defenses are technical, not real, and designed to delay the inevitable. It is stories like the one below you must keep in mind along with the quote from Beth Findsen who always reminds us that “you can be right as rain on the law, but if the Judge refuses to apply it, you lose anyway.”

That is why it is so important to get your act together (use the free intake form on this blog), get a forensic analysis done that includes securitization, and get an expert declaration that you or your lawyer can use in court. In the first round of motions you won’t convince the judge you’re right and the other side is wrong. But you CAN convince him that your case possibly has merit, that you are entitled to discovery, that you are entitled to a temporary injunction or temporary retraining order, and that you have a right to a hearing on the merits.

Having third party reports and declarations in your hand that you can lay down in front of the judge goes a long way to convince the judge that you at least have the right to be heard on the merits even if, at the moment, he or she doesn’t think it likely you will prevail. If you properly plead and show the Judge something he or she can hold in their hand that, if proven, means you would win the case, then the judge is more likely to follow the law and allow you to proceed.

NAPLES — It was retirement incarnate. Then, the foreclosure lawsuit came.

Warren Nyerges, 45, left his law enforcement career and moved to Golden Gate Estates late last year with his wife. He was spending his days preparing his backyard for grass, painting the interior of his home and joking about the snow he abandoned in Cleveland.

“I’ve had nothing but a ball. To come down here, it’s a life dream,” Nyerges said.

To top it all off, the couple’s single-story, 2,700-square-foot home was paid off. Nyerges said he even offered $5,000 more than Bank of America was asking, quickly sealing the deal with title insurance.

But on Feb. 18, a man came to the couple’s home with a lawsuit. Bank of America had begun foreclosing on the property, and Nyerges’ dream was temporarily put on hold.

“I wish I could have taken my blood pressure the day I got served that thing, because I was livid,” Nyerges said. “I told my wife it shortened my life by 10 years.”

Nyerges said he called the process server, who told him to call the courthouse, where officials told him to call the lawyer, who then told him the issue was between him and Bank of America. Nyerges said he felt like many of the officials thought he was trying to get out of paying a mortgage.

After he was served, Nyerges said in a March 1 interview, “each and every day thereafter, excluding Saturdays and Sundays, I’ve been in contact with someone from the bank or the law firm.”

After unsuccessful calls to Bank of America’s main number, Nyerges said he went to one of the bank’s branches, found a manager, and “plopped this mess down on his desk.”

“I work for Bank of America. I am with these people. This lawsuit has no merit. It needs to stop,” Nyerges said the bank manager told others at the company after reviewing Nyerges’ documents. Nyerges said the bank didn’t believe their own employee.

On Feb. 22, he went back to the bank branch and had the documents faxed to the company. By March, an employee at the bank said they were researching the case, Nyerges said.

“They’re researching it,” Nyerges said the bank employee told him. “Calm down.”

“She just couldn’t understand why I was so upset about this,” Nyerges said, adding that he was nice at first, but later became more frustrated.

With multiple trips to the bank branch and the courthouse and about 25 hours dealing with the suit, which he had 20 days to respond to in order to avoid acknowledging the facts as accurate, Nyerges said he had no choice but to file a motion.

Acting as his own attorney, Nyerges’ first motion demanded the suit be dismissed with damages and he later filed a second motion seeking $2,500 for his time and expenses.

In a statement, Bank of America said officials are still trying to determine what happened.

“Bank of America sincerely apologizes to Mr. Nyerges for this inconvenience. We are currently researching the matter and are stopping the foreclosure,” the statement said. “We are still in the process of identifying the root cause that created this issue.”

Public records filed for Nyerges’ property add only more confusion to the situation. According to the records, the previous owners are Henry and Nelly M. Imbachi, who bought the home in July 2005. The lawsuit is related to the first of two mortgages they took on the property by August 2005.

When her husband lost his job, Nelly Imbachi said Bank of America foreclosed on the second mortgage. That foreclosure began in September 2008, Bank of America obtained title to the home in April 2009 and the second mortgage — not the first mortgage — was satisfied in August 2009, according to official records filed with the Collier Clerk of Court.

Nelly Imbachi said the unemployment insurance she had with Bank of America didn’t help. She said the company told her she didn’t file the necessary papers. She said the family never got a lawyer, later filed for bankruptcy and have not been notified of the current lawsuit.

“When they told us we lost the house, that is when we stopped paying,” Nelly Imbachi said of the first mortgage.

Tuan Van Ho, a Macro Island man who did not return a request for comment, then purchased the home for $155,000 on July 17, 2009, according to official records.

A month later, Nyerges purchased the home for $165,000, just three days after the Imbachi’s second mortgage was satisfied, the records indicate. In November, Nyerges said he looked up the property on the Collier County Property Appraiser’s Web site, discovered Ho was still listed as the owner, and asked for the situation to be corrected.

Indeed, on Nov. 13, 2009, Ho transferred the property back to Bank of America for no cost, two-and-a-half months after Nyerges had bought the home from Bank of America and while the Imbachi’s first mortgage still wasn’t satisfied.

So, what led to Nyerges being named in the suit remains a mystery. For the most part, Nyerges is more concerned, he said, with having his family’s name cleared, damages for the time he has spent and expenses paid fighting the suit, and a return to the relative serenity he once had.

“As I explained in my pleading today, they cost me long distance phone calls, gas, time and do you know how far my house is from the court house?” Nyerges said. “A lawyer would charge you $200 or $250. I’m charging $100. Just cut me a check for $2500 and we’ll act like the whole thing never happened.”