Foreclosure Rights | War on the Home Front

Mar

The article that appears in today’s edition of Daily Finance is the most comprehensive and most accurate analysis of the failure of the Attorney General and their investigation of Fraudclosuregate done by any reporter yet. Everyone is sitting, watching, waiting for some grand solution to this multi dimensional problem. Everyone just assumes that someone will come up with the solution. No one is prepared for the very real possibility that there may not be a solution to this mess. I have spent years now fighting in this mess of a war, and I am absolutely prepared to say that there is no solution…..at least no solution that is anything short of revolutionary and very destabilizing…..but don’t take it from me….listen to the expert….

Ever since this fall, when the mortgage industry’s robo-signing scandal first broke, people have been aware that banks have been illegally foreclosing on homes.

Now there’s a huge fight over what to do about that, mostly focused on a 27-page proposal that was supposed to represent the consensus of the 50 state attorneys general, but apparently doesn’t. On top of that effort came a report of a “shock and awe” modification push from the federal government, but as Yves Smith at Naked Capitalism details, it’s neither good policy nor practical.

One feature of both the attorneys general’s proposal and the “shock and awe” maneuver is speed.

The attorneys general are in such a hurry to find a solution that they haven’t even investigated the banks: They’re just relying on consumer complaints to define the problem. Similarly, the shock-and-awe plan involves an impossible six month deadline. As Treasury Secretary Timothy Geitner explained to Congress: “All parties have a stake in bringing this to resolution as quickly as possible” and “It’s very important that we try to bring this to bed as quickly as we can.”

See full article from DailyFinance: http://srph.it/epe9SQ

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Feb

The Foreclosure Mills and The Florida Legislature Want To Change The Florida Constitution!

By Matthew D. Weidner, Esq. | Foreclosure Rights, Weidner

21951Leave a Comment2011-02-28+12%3A34%3A23Matthew+D.+Weidner%2C+Esq.

The Florida SUPREME Court passed a rule. A very simple rule really. It said, “Foreclosure mills and banks, please, pretty please, tell the truth.” That’s all the rule is. And despite how simple and basic this rule is, the banks and foreclosure mills have gone nuts. First then just ignored this rule all across the state. To this day, some of the foreclosure mills continue to ignore the rule or play games with it. Far too often they get away with it. Letting them get away with it is a dramatic example of the breakdown in our entire system of government because judges were the last line of defense against corporations gone wild. When judges refuse to enforce laws designed to protect the common man, the corporation’s Rule of Law becomes institutionalized.

And now the Florida Legislature wants in on the action. The legislature is bought and paid for by the banks and foreclosure mills. The legislature is incensed that judges might a) pass rules to require truth and integrity and b) pass rules that impede the foreclosure mills from grinding along with their misdeeds. Never mind that this is the Florida SUPREME Court we’re talking about here. After all, what do they know? And so the response of the Florida Legislature is to introduce a proposed amendment to the Florida Constitution that would gut the Florida Supreme Court and the third branch of government.

“No court shall have the power, express or implied, to adopt rules for practice and procedure in any court. Court rules of practice and procedure may be recommended by the Supreme Court to be adopted, amended or rejected by the legislature in a manner prescribed by general law. If there is a conflict between general law and a court rule, the general law supersedes the court rule.”

Scary really, and hopefully the Florida Senate will realize just how obscene this amendment is. But it is a dramatic example of just how powerful the foreclosure mills and the banks are in the state. They’re angry because Florida’s courts are attempting to do just what our founding forefathers intended that they do….protect us all from overreaching corporations and their supreme influence.

Florida Bar News

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Feb

First They Came for the Homeowner in Foreclosure, and I didn’t Speak Up…

By Matthew D. Weidner, Esq. | Foreclosure Rights, Weidner

20522Leave a Comment2011-02-03+02%3A33%3A21Matthew+D.+Weidner%2C+Esq.

“They came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for me and by that time no one was left to speak up.

Click on this link for more about this quote from Wikipedia

At times it’s a struggle to explain to some people, even some judges, why the honorable and ethical defense attorneys fight so hard for homeowners and for respect of rules and the basic rights. I know that the exceptional attorneys that are our brothers and sisters in the foreclosure battle fight this fight not for the money and not because it’s just a job. They fight this battle because deep within the professional soul, your voice of conscience tells you that you must fight to keep the flicker of justice burning.

The generosity, the openness, the professionalism and courtesy of the unsung fighters illustrates the very best qualities that our society wishes all attorneys exhibited. Every day more attorneys join this good and principled fight and every day more and more judges join in with recognition and awareness that what is at stake in every foreclosure case is far greater than just the individual wrongdoing in that case…fundamental liberties are at stake.

The Pino decision is pivotal moment in our state and in our country’s history. Will the highest court in the land seize upon the awesome responsibility to take charge of this chaos or will this state continue down deeper into this pit? In my mind, there is only one option. It’s time to lance this boil that covers the state. We’ve got to open it up, excize the cancer and let it all drain out. Only then can we begin to begin to rebuild, to earn the public’s trust again and move forward.

As a profession, as a society, as a country, we cannot just sit back and let these wrongs that are occurring continue to happen to those among us who are suffering the most. We cannot continue to allow this full frontal assault on them is an assault on our courts, our laws and on our basic liberties. We must understand that this assault upon all of them is just the latest wave of attacks and assault on every one of us.

It’s not to late to stop the worst of this from coming, but we’ve got to understand the magnitude of these attacks and work together to ensure that they do not continue….the alternative is not acceptable in any fashion.

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Jan

BOMBSHELL- Florida Circuit Court Judge’s Orders Save Jobs and Reclaim Millions in Lost Taxpayer Dollars

By Matthew D. Weidner, Esq. | Foreclosure Rights, Weidner

20384Leave a Comment2011-01-31+23%3A47%3A17Matthew+D.+Weidner%2C+Esq.

The State of Florida is in the grips of what is perhaps the greatest financial crisis in history. Facing a projected $3 billion budget deficit deficit, we will have fewer law enforcement officers on the street. Violent criminals will be released from prisons. Medicine and medical care for the sick and elderly will be limited. Vital programs that protect children and the most vulnerable among us will be cut or eliminated. The innocents among us will suffer the most. In spite of all this suffering, the banks, the Wall Street Wizards and the foreclosure mills are making BILLIONS.

Our Courts Are Tragically Underfunded

As recently noted by the Florida Supreme Court in the January 20th, 2011 decision Crist v. Ervin (go to page 13), the Florida Court system is “Operationally Underfunded”. The Supreme Court questioned whether this meant our courts are “Constitutionally Underfunded” and while the court couldn’t quite make that determination, I am convinced we will reach this point when all of the facts from Fraudclosuregate are revealed. The banks, the Wall Street Wizards and their foreclosure mills dumped a crisis into our courthouses all across this country and our courts simply lack the necessary resources to deal with the full magnitude of the crisis. At the same time, legislators and policy makers demand that our courts:

“CLEAR THIS FORECLOSURE DOCKET!”

Until we make the formal announcement that Florida’s courts are constitutionally underfunded, let’s just say that they are tragically underfunded….perhaps we’ll get around to making the formal determination that when basic rights are violated all in the aim of rewarding the banks that run this country, our courts have become constitutionally underfunded. There are very real bright spots all across this state….shining examples of judges standing up for consumers, for the Rule of Law and for the Constitution. Last week I received an order that is just one example of a judge doing all of that. The order is based on the failure of the foreclosure mills to comply with the clear rules of the Florida Supreme Court. They took a gamble that they could break the rules and get away with it, and they’ve lost that gamble. But their gamble cost us all millions in wasted court time and effort. More importantly the flagrant violation of the rules violated fundamental rights, and you cannot put a price tag on those. Our courts should not have to spend time enforcing basic rules over and over again, but don’t listen to me…read the text from the order:

1. It is confiscatory of the Court’s time to have to address this matter. Repeat violations by the same firm, or by the same attorney, may result in imposition of personal sanctions, and issuance of an orderdirected to the attorney or firm to show cause why that attorney or firm should not be prohibited from filing further foreclosure cases in this Court.

Below is a pdf of the order, along with the word version of it. I’ve included the Word version so the order can be disseminated to every circuit court judge in this state. Just stop and think for a moment what would happen if our judges used this order to clear their foreclosure docket……

IndianRiverDismissal

Order Dismissing Separate Verification-1

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Nov

Deposition of Expert Witness (Yours Truly) in a Securitized Trust/Trustee Foreclosure Case

By LH | Foreclosure Defense Research, Foreclosure Rights, Homeowner Resources, Securitization-MBS

157681 Comment2010-11-12+22%3A26%3A49LH

By Lane Houk
November 11, 2010

It took an Act of Congress to finally get a copy of my own deposition. Go figure… I was retained by an attorney and client in a New Jersey case to conduct a securitization analysis and investigation on this case and then quantify my opinion in an Affidavit. The Affidavit was filed in the instant case and the judge relied on my Affidavit in his ruling on the Plaintiff’s Motion for Summary Judgment – which he denied after carefully considering my opinion in the Affidavit.

The case was set for trial and the Plaintiff, Deutsche Bank National Trust Company (DBNTC) as Trustee For Argent Securities Inc. Series 2004-PW1, wanted to depose me, presumably, to get an idea of what they were going to have to deal with at trial in my testimony.

Here is the 62-Page Deposition taken by DBNTC and their attorney on September 17, 2010 in New York.

Here is the Affidavit filed in the instant case.

Mind you, this work was done by me back in early 2010. I have advanced considerably in my analyses and how I structure my Affidavits now versus how I used to structure them – with the gracious help of some of the attorneys I work with on a regular basis.

Here is a much more recent live sample of an Affidavit of Expert Opinion with all Exhibits recently filed in a Duval County, Jacksonville, FL case. One thing for sure… this work and the affidavit filed in a foreclosure case is successful almost 100% of the time in defeating summary judgment and getting to trial and advanced discovery phases. It also sets up a deposition(s) of corporate reps very nicely. There are so many issues of fact presented in my affidavits that a judge is going to have go rogue in a major way to still grant summary judgment.

If you would like more information on this, please feel free to contact me at 800-985-4685.

Nov

Hot Off the Press – CA Federal Judge Grants Homeowner TRO against Chase

By LH | Foreclosure Defense Research, Foreclosure Rights, Homeowner Resources

15387Leave a Comment2010-11-04+15%3A01%3A07LH

Alright… so not every federal judge in CA is in the tank for the banks. Surprising but refreshing. At least the judges around this country seem to be “getting it” as well. By getting it I mean starting to understand that the banks, servicers and secondary mortgage market players are generally deceptive, dubious, misleading, unfair, immoral, unethical, oppressive, unscrupulous – oh my goodness… I’m in adjective heaven here!

Seriously, though, the servicers are bottom-dwellers in every sense of the word and it’s nice to see a judge actually recognize that their collection tactics are oppressive and immoral and, when pleaded with specificity, accepted by the judge as true. In this case, a pro se homeowner went on the offense (as needed in California) and filed a complaint (23 pages) and also motioned for a Temporary Restraining Order (TRO) and a Preliminary Injunction. The judge granted the homeowner’s request for a TRO in her order. All of these documents can be downloaded below as well. Read and Learn… if you’re a pro se homeowner, this is some really good research for you. Way to go Mr. Khast!

Complaint with Motion for TRO

Motion for Preliminary Injunction

Memorandum in Support of Motion for Prelim Injunction

Order Granting TRO

Opposition by Chase and CA Reconveyance Company

Oh and by the way, I didn’t know this until I read Chase’s Certification of Interested Parties that JP Morgan Chase Bank, NA actually purchased CA Reconveyance Company. Isn’t that convenient? Our tax bailout dollars hard at work making home seizure even more convenient and easy for Chase. Seriously, if you have any bank account of any sort with Chase, B of A, Wells Fargo, Citi, you have got to be out of your mind. I ABSOLUTELY REFUSE TO PATRONIZE THESE LARGE BANKS AND GIVE THEM ANY OF MY MONEY, PAY THEIR FEES OR LET THEM KNOW ANYTHING ABOUT ME. YOU SHOULD DO THE SAME. IMAGINE HOW GREAT IT WOULD BE IF WE STARTED A MOVEMENT TO REMOVE OUR DEPOSITORY ACCOUNTS FROM THESE LARGE BANKS!

For over two years now, my banking is done exclusively with a small community bank. You know, the old face to face, relationship banking that used to be the norm. These large banks can kiss my ass. They are horrendous in how they treat their customers. Use the power of choice and abandon the big banks. Start a trend in your neighborhood and community. I would just love to see one of the big banks fail because of a run on their bank deposits.

Oct

BOMBSHELL- Tampa Tribune Article on Service of Process and Overbilling Fraud

By MattWeidner | Foreclosure Rights, Weidner

150361 Comment2010-10-28+10%3A10%3A20MattWeidner

Fraud, sidestepping and abuses permeate the entire foreclosure process. And oh yeah, inflated and billing and charges for services that were not performed. But none of that matters because it’s foreclosure right? And who cares about homeowners in foreclosure anyway? Well how about all of us because every single American is going to absorb both the larger societal and individual costs of the systemic failures and abuses that are now being exposed all across this country.

Read the attached article that appears in the Tampa Tribune very carefully. Read the admissions and quotes by the lawyers and parties involved in this conduct. Ask yourself, “How many times was all of this repeated across the State of Florida?”, “What is the aggregate total of adding a few hundred dollars here, a few thousand dollars there?” Consider very carefully the cumulative impact of just the conduct these firms are admitting to, the ask yourself, “If this is what they are admitting to what else is out there?”

EVENTUALLY YOU’RE TALKING ABOUT A WHOLE BIG STEAMING POT OF MONEY

MORE IMPORTANTLY, CONSIDER THE IMPACT OF FLAWS IN THE SERVICE OF PROCESS PROCESS

Remember, we all, every one of us, eventually pay these bills. Not the lenders, not the attorneys, you and me and our kids and Grandkids….every single one of us.

Finally, remember that failed service of process means VOID JUDGMENTS. There are no statutes of limitations on failed service of process claims because if there is not proper service of process, the court never had jurisdiction over the party and the foreclosure judgment has no legal force or effect. BEGIN RESEARCHING THE TERM VOID AB INITIO

Tampa Tribune Article

THIS IS BOMBSHELL JOURNALISM PEOPLE. NATIONAL PRESS START FOLLOWING THIS TRAIL OF CRUMBS….BIG STORIES AWAIT.

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Oct

Scathing Testimony by former employee of David J. Stern

By LH | Foreclosure Rights

14005Leave a Comment2010-10-08+16%3A31%3A45LH

Oh boy… the snowball is rolling downhill folks. For the record, this deposition by Tammie Kapusta simply uncovers what we have known for over two years. It’s just that this deposition is of an insider at the Law Offices of David J. Stern who also happened to report directly to Cheryl Samons and who’s office/cubicle was directly outside of Stern’s office and Samons’ office.

Let me tell you that this deposition is unreal. It’s both unbelievable and believable all at the same time. If the Florida Attorney General AND the Florida Bar do not take action and put several of these attorneys out of business, for good, and send people to jail for these fraudulent practices then you can bet your bottom dollar that the folks at the Florida Bar and the Attorney General’s office are simply on the take too and complicit in the illegalities that are running rampant through Florida courtrooms and the foreclosure mills here in Florida.

I’m disgusted that the Lee County judges are still sitting on the bench. Judge John Carlin who is the chief administrative judge needs to be called out. I met with him personally by my request two years ago and voiced my concern. His response? The Lee County Rocket Docket… which was also mentioned by name in this deposition by Tammie Kapusta. Apparently, there was some level of partnership, collusion or whatever you want to call it in establishing the rocket docket in Lee County between the judges and Stern’s office. No surprise, these judges absolutely ignore the basic constiutional rights of homeowners everyday. They ignore the basic rules of Florida Civil Procedure and they fail to uphold the basic rules of pleading, evidence and ethics and they justify this malpractice and abuse of discretion because they say the homeowner isn’t paying so he/she/they don’t deserve to stay in the home. Nevermind if the Plaintiff isn’t the legal owner of the obligation… nevermind if the Plaintiff has committed fraud to make it appear as if they do… nevermind… oh, I have a list a mile long regarding these abuses.

All I’m left to say is “shame on you” all Florida judges who let this happen. There are a noble few with “few” being the key word. Thank you to those few who actually care about the honor and integrity of the bench. Shame on the rest of you. You sleep with the devil and your day of public shame is coming. The blight and dark cloud on Florida property can be blamed directly on these judges for failing to be the keeper of the integrity of the system. They come across as calloused and basically “inconvenienced” by this whole mess. The Florida Legislature stands next to them with the the blame for basically telling them to clear their dockets as fast as possible.

Is there no one in this state that can actually see the Forest with the Trees? Can anyone actually see beyond the moment and see what you are doing to this state long-term? What will you do when title insurance companies refuse to insure title on any foreclosed home because the rampant fraud reveals too much risk? Oh, I’ll tell you exactly what they’ll likely do. They’ll create “Citizens Title Insurance Company” funded by Florida taxpayers to write the title insurance and Florida citizens will assume all the risk of this negligent and criminal behavior!

I really encourage you to write to your state representatives to demand their repentance on this issue. It is way beyond time that the collective leadership in this state be held COMPLETELY accountable for their actions and inactions and we are just a few short weeks away from sending a clear message with our votes that we no longer will tolerate this. Enough!

Aug

Florida Law Firms Subpoenaed Over Foreclosure Filing Practices

By LH | Corporate Greed & Corruption, Featured, Foreclosure Rights, Housing & Economic Research

11600Leave a Comment2010-08-10+16%3A02%3A36LH

Even though this is 18 months late, it’s a positive sign that the Florida Attorney General is finally getting it, or, more likely just making a political move to try and win some votes for November. Of course, this “investigation” will last well past November so voters will have to consider whether this is just political feint or if the stalwart AG McCollum actually posesses the balls to actually put someone in jail for all the fraud that’s been committed to date using the Florida judciary as pawns in the chess game called Wall Street and Banking. Mr. McCollum, ball’s in your court… pun intended. – mdn

Attorney General Bill McCollum News Release

August 10, 2010
Media Contact: Sandi Copes
Phone: (850) 245-0150

Florida Law Firms Subpoenaed Over Foreclosure Filing Practices

TALLAHASSEE, FL – Attorney General Bill McCollum today announced his office has launched three new investigations into allegations of unfair and deceptive actions by Florida law firms handling foreclosure cases. The Attorney General’s Economic Crimes Division is investigating whether improper documentation may have been created and filed with Florida courts to speed up foreclosure processes, potentially without the knowledge or consent of the homeowners involved. – (gee ya think?)

The new investigations name The Law Offices of Marshall C. Watson, P.A.; Shapiro & Fishman, LLP; and the Law Offices of David J. Stern, P.A. The law firms were hired by loan servicers to begin foreclosure proceedings when consumers were in arrears on their mortgages.

Because many mortgages have been bought and sold by different institutions multiple times, key paperwork involved in the process to obtain foreclosure judgments is often missing. On numerous occasions, allegedly fabricated documents have been presented to the courts in foreclosure actions to obtain final judgments against homeowners. Thousands of final judgments of foreclosure against Florida homeowners may have been the result of the allegedly improper actions of the law firms under investigation.

The Attorney General’s Office is also investigating whether the law firms have created affiliated companies outside the United States where the allegedly false documents are being prepared and then submitted to the law firms for use.

Subpoenas have been served on each of the law firms listed above, and the investigations are ongoing.

Nov

Finally, a Judge Willing to Hold Lenders/Servicers Accountable!

By LH | Court Cases, Featured, Foreclosure Defense Research, Foreclosure Rights

29722 Comments2009-11-09+19%3A47%3A38LH

I have to say that reading the below order from Judge Arthur Schack is refreshing. It’s also disappointing because there are so few judges out there today willing to do what he is doing. The majority of Florida judges are cowboys who don’t really care about legal standards and rules of civil procedure. They routinely grant motions for Summary Judgment even when there are clear issues of material fact in the case or even when there is still outstanding disovery that the Plaintiff servicer/trustee hasn’t complied with. They routinely hear a Motion to Dismiss AND a Motion for Summary Judgment on the same day/time! It’s ridiculous and despicable all at the same time.

The bottom line is that most judges in Florida and other states trample on the civil rights of homeowners and deny them due process because of their “personal views” on the issues of foreclosure. I highly encourage homeowners to organize in their communities and march on the steps of their local courthouse and protest what their elected judges are doing and not doing to uphold the law as Judge Schack is doing in this case.

Judge Schack also provides some great points that attorneys and pro se litigants should focus on in their case(s). Read carefully and learn the elements that he is stipulating because there are fine points of law that he his holding the plaintiff in this case to. Enjoy…

HSBC Bank USA, N.A. v. Valentin N.Y.Sup.,2008. NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE. Supreme Court, Kings County, New York.
HSBC BANK USA, N.A., as Indenture Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2005-3, Renaissance Home Equity Loan Asset-Backed Notes, Series 2005-3,, Plaintiff, v. Candida VALENTIN, Candide Ruiz, et. al., Defendants. No. 15968/07. Jan. 30, 2008. Vincent P. Surico, Esq., De Rose & Surico, Bayside, for Plaintiff. No Opposition submitted by defendants to plaintiff’s Judgment of Foreclosure and Sale. ARTHUR M. SCHACK, J. *
1 Plaintiff’s application, upon the default of all defendants, for an order of reference, for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings) is denied without prejudice. The “affidavit of merit” submitted in support of this application for a default judgment is not by an officer of the plaintiff or someone with a power of attorney from the plaintiff.
Leave is granted to plaintiff, HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3 (HSBC), to renew its application for an order of reference upon presentation to the Court of compliance with the statutory requirements of CPLR § 3215(f), with “an affidavit of facts” executed by someone who is an officer of HSBC or has a valid power of attorney from HSBC.
Further, the Court, upon renewal of the application for an order of reference requires a satisfactory explanation to questions with respect to: the assignment of the instant nonperforming mortgage loan from the original lender, Delta Funding Corporation to HSBC Bank; the employment history of one Scott Anderson, who assigned the instant mortgage to HSBC, yet in a case I decided last month, HSBC Bank, N .A. v. Cherry, 18 Misc.3d 1102(A), swore in an affidavit to be HSBC’s servicing agent; and the relationship between HSBC, Ocwen Federal Bank, FSB (OCWEN), Deutsche Bank and Goldman Sachs, who all seem to share office space at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409 (Suite 100). Background Defendants, Candida Valentin and Candide Ruiz, borrowed $340,000 from Delta Funding Corporation, on June 23, 2005.
The note and mortgage were recorded in the Office of the City Register, New York City Department of Finance on July 14, 2005, at City Register File Number (CRFN) 2005000395517. Delta Funding Corporation, by Mortgage Electronic Registration Systems, Inc. (MERS), its nominee for the purpose of recording the mortgage, assigned the note and mortgage to plaintiff HSBC, on May 1, 2007, with the assignment recorded on June 13, 2007 at CRFN 2007000306260.
Plaintiff’s moving papers for an order of reference fails to present an “affidavit made by the party,” pursuant to CPLR § 3215(f). The application contains an April 23, 2007-affidavit by Jessica Dybas, who states that she is “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.”On that date, the note and mortgage were still held by MERS, as nominee of Delta Funding Corporation. For reasons unknown to the Court, MERS, as nominee of Delta Funding Corporation, or plaintiff HSBC failed to provide any power of attorney authorizing OCWEN to go forward with the instant foreclosure action.
Further, even if HSBC authorized OCWEN to be its attorney in fact, Ms. Dybas is not an officer of OCWEN. She is a “Foreclosure Facilitator,” a job title unknown to this Court. Therefore, the proposed order of reference must be denied without prejudice. Leave is granted to plaintiff HSBC to comply with CPLR § 3215(f) by providing an “affidavit made by the party,” whether by an officer of HSBC or someone with a valid power of attorney from HSBC. *2 Further, according to plaintiff’s application, the default of defendants Valentin and Ruiz began with the nonpayment of principal and interest due on January 1, 2007. Yet, four months later, plaintiff HSBC was willing to take an assignment of the instant nonperforming loan. The Court wonders why HSBC would purchase a nonperforming loan, four months in arrears?
Additionally, plaintiff HSBC must address a third matter if it renews its application for an order of reference. In the instant action, as noted above, Scott Anderson, as Vice President of MERS, assigned the instant mortgage to HSBC on May 1, 2007. Doris Chapman, the Notary Public, stated that on May 1, 2007, “personally appeared Scott Anderson, of 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.”In HSBC Bank, N.A. v. Cherry, at 3, I observed that: Scott Anderson, in his affidavit, executed on June 15, 2007, states he is Vice President of OCWEN. Yet, the June 13, 2007 assignment from MERS to HSBC is signed by the same Scott Anderson as Vice President of MERS. Did Mr. Anderson change his employer between June 13, 2007 and June 15, 2007. The Court is concerned that there may be fraud on the part of HSBC, or at least malfeasance. Before granting an application for an order of reference, the Court requires an affidavit from Mr. Anderson describing his employment history for the past three years. Lastly, the court notes that Scott Anderson, in the MERS to HSBC assignment gave his address as Suite 100. This is also the address listed for HSBC in the assignment. In a foreclosure action that I decided on May 11, 2007 (Deutsche Bank Nat. Trust Company v. Castellanos, 15 Misc.3d 1134[A] ), Deutsche Bank assigned the mortgage to MTGLQ Investors, L.P. I noted, at 4-5, that MTGLQ Investors, L.P.: According to Exhibit 21.1 of the November 25, 2006 Goldman Sachs 10-K filing with the Securities and Exchange Commission … is a “significant subsidiary” of Goldman Sachs…. [T]he January 19, 2007 assignment has the same address for both the assignor Deutsche Bank and the assignee MTGLQ Investors, L.P., at 1661 Worthington Road, Suite 100, West Palm Beach, Florida 33409.
The Court will not speculate about why two major financial behemoths, Deutsche Bank and Goldman Sachs share space in a West Palm Beach, Florida office suite In the instant action, with HSBC, OCWEN and MERS, joining with Deutsche Bank and Goldman Sachs at Suite 100, the Court is now concerned as to why so many financial goliaths are in the same space. The Court ponders if Suite 100 is the size of Madison Square Garden to house all of these financial behemoths or if there is a more nefarious reason for this corporate togetherness.
If HSBC seeks to renew its application for an order to reference, the Court needs to know, in the form of an affidavit, why Suite 100 is such a popular venue for these corporations. Discussion Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, plaintiff’s application for an order of reference is a preliminary step to obtaining a default judgment of foreclosure and sale. (Home Sav. Of Am., F.A. v. Gkanios, 230 A.D.2d 770 [2d Dept 1996] ). *3 Plaintiff has failed to meet the requirements of CPLR § 3215(f) for a default judgment. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party… Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party’s attorney. [Emphasis added]. Plaintiff has failed to submit “proof of the facts” in “an affidavit made by the party.”The affidavit is submitted by Jessica Dybas, “a Foreclosure Facilitator of OCWEN LOAN SERVICING, LLC, servicing agent and attorney in fact to the holder of the bond and mortgage sought to be foreclosed herein.” There must be an affidavit by an officer of HSBC or a servicing agent, possessing a valid power of attorney from HSBC for that express purpose. Additionally, if a power of attorney is presented to this Court and it refers to pooling and servicing agreements, the Court needs a properly offered copy of the pooling and servicing agreements, to determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v. Batista, 15 Misc.3d 1143(A) [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v. Lewis, 14 Misc.3d 1201(A) [Sup Ct, Suffolk County 2006] ).
Also, the instant application upon defendants’ default must be denied because even though it contains a verified complaint, the attorney’s verification is insufficient to meet the requirements of CPLR § 3215(f). The Court, in Mullins v. Di Lorenzo, 199 A.D.2d 218 [1st Dept 1993], instructed that “a complaint verified by counsel amounts to no more than an attorney’s affidavit and is therefore insufficient to support entry of judgment pursuant to CPLR 3215.”Citing Mullins v. Di Lorenzo, the Court, in Feffer v. Malpeso, 210 A.D.2d 60, 61 [1st Dept 1994], held that a complaint with not more than an attorney’s affidavit, for purposes of entering a default judgment “was erroneous and must be deemed a nullity.” Professor David Siegel, in his Practice Commentaries (McKinney’s Cons Laws of NY, Book 7B, CPLR C3215: 16) explains that Mullins v. Di Lorenzo is in point here. Perhaps the verified complaint can do service as an affidavit for various purposes within the litigation while the contest is on … but it will not suffice to put an end to the contest with as drastic a step as a default at the outset. It must be kept in mind that even an outright “affidavit” by the plaintiff’s attorney on the merits of the case-except in the relatively rare circumstances in which the attorney happens to have first-hand knowledge of the facts – lacks probative force and is usually deemed inadequate by the courts to establish the merits. A fortiori, a verified pleading tendered as proof of the merits would also lack probative force when the verification is the attorney’s. [Emphasis added ] *4 In Blam v. Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that: In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (seeCPLR 3215(f): Goodman v. New York City Health & Hosps. Corp. 2 AD3d 581 [2d Dept 2003]; Drake v. Drake, 296 A.D.2d 566 [2d Dept 2002]; Parratta v. McAllister, 283 A.D.2d 625 [2d Dept 2001] ). Accordingly, the plaintiff’s motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 A.D.2d 337, 338 [2d Dept 1997] ). (See Hazim v. Winter, 234 A.D.2d 422 [2d Dept 1996]; Finnegan v. Sheahan, 269 A.D.2d 491 [2d Dept 2000]; De Vivo v. Spargo, 287 A.D.2d 535 [2d Dept 2001]; Peniston v. Epstein, 10 AD3d 450 [2d Dept 2004]; Taebong Choi v. JKS Dry Cleaning Eqip. Corp., 15 AD3d 566 [2d Dept 2005]; Matone v. Sycamore Realty Corp., 31 AD3d 721 [2d Dept 2006]; Crimmins v. Sagona Landscaping, Ltd., 33 AD3d 580 [2d Dept 2006] ). Therefore, the instant application for an order of reference is denied without prejudice, with leave to renew.
The Court will grant plaintiff HSBC an order of reference when it presents: an affidavit by either an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson clarifying his employment history for the past three years and what corporation he serves as an officer; and, an affidavit by an officer of HSBC explaining why HSBC would purchase a nonperforming loan from Delta Funding Corporation, and why HSBC, OCWEN, MERS, Deutsche Bank and Goldman Sachs all share office space in Suite 100.
Conclusion Accordingly, it is ORDERED, that the application of plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 29, County of Kings), is denied without prejudice; and it is further ORDERED, that leave is granted to plaintiff, HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, to renew its application for an order of reference for the premises located at 572 Riverdale Avenue, Brooklyn, New York (Block 3838, Lot 39, County of Kings), upon presentation to the Court, within forty-five (45) days of this decision and order, of: an affidavit of facts either by an officer of HSBC or someone with a valid power of attorney from HSBC, possessing personal knowledge of the facts; an affidavit from Scott Anderson, describing his employment history for the past three years; an affidavit from an officer of plaintiff HSBC BANK N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2005-3, RENAISSANCE HOME EQUITY LOAN ASSET-BACKED NOTES, SERIES 2005-3, explaining why plaintiff would purchase a nonperforming loan from Delta Funding Corporation and why plaintiff *5 HSBC BANK N.A., shares office space at Suite 100, 1661 Worthington Road, West Palm Beach, Florida 33409, with Ocwen Federal Bank FSB, MortgageElectronicRegistrationSystems, Inc., Deutsche Bank and Goldman Sachs. This constitutes the Decision and Order of the Court. N.Y.Sup.,2008. HSBC Bank USA, N.A. v. Valentin Slip Copy, 18 Misc.3d 1123(A), 2008 WL 239932 (N.Y.Sup.), 2008 N.Y. Slip Op. 50164(U) END OF DOCUMENT

Aug

Bank of America loses in Federal Ruling – Judge says investors own the loans

By LH | Court Cases, Featured, Foreclosure Defense Research, Foreclosure Rights

1642Leave a Comment2009-08-20+20%3A20%3A29LH

The report of the ruling below by this Federal Judge has several implications:

Mortgage modifications may come to a halt again
Attorney’s and anyone supposedly “helping” with modifications should be very, very wary
The federal court in Manhattan is recognizing a couple very important issues:
1. Servicers are NOT the owners of the loans (in the case of a securitized loan)
2. Investors own the loans
3. Servicers MAY be liable to buy back modified loans (subject to the terms of the PSA)

This ruling could ultimately end up being the demise of ALL foreclosure actions involving securitized loans. One thing is clear in that the federal court identifies the investors as the owners of the loan and is so doing the court also recognizes that the servicer/intermediaries/pretender lender have no authority to do ANYTHING in the way of enforcement, modification, collection through legal means such as a foreclosure action because they simply have no standing (the alleged debt is not owed to anyone other than the investors).

Just because a secret deal between Wall Street, servicers, banks and MERS occurred to obscure the ownership and the transfers of mortgages doesn’t mean their deal will hold up under the careful eye of diligent judge who understands AND cares about the law being upheld.

Source: Reuters

BofA’s Countrywide loses court ruling on mortgages

Thu Aug 20, 2009 7:37am EDT

* Federal judge lacks jurisdiction, moves case to states

* Loan modifications can hurt mortgage investors

NEW YORK, Aug 20 (Reuters) – A federal judge has ruled that Bank of America Corp (BAC.N: Quote, Profile, Research, Stock Buzz) cannot have a lawsuit by investors seeking to force it to buy back mortgages heard in federal court, saying he lacks jurisdiction to decide the case.

Tuesday’s ruling by Judge Richard Holwell of the U.S. District Court in Manhattan means the case will move to state court. Holwell did not decide the merits of the case.

“Congress passed two statutes within a year of each other to address the mortgage crisis,” the judge wrote. “In neither of these statutes did Congress federalize the case.”

The ruling is a win for investors, to the extent that Holwell rejected a claim by the bank’s Countrywide Financial Corp unit that new federal laws to encourage loan modifications to help struggling borrowers stay in their homes govern this case.

Countrywide had argued that the laws negated obligations it might have had to buy back modified loans. In 2008, Countrywide agreed with some 11 state attorneys general to modify $8.4 billion of loans made to roughly 400,000 borrowers.

Investors who own mortgage securities typically receive interest and principal payments. If servicers modified the underlying loans to reduce borrower obligations, investors would be harmed because they would receive lower payments.

Holwell did rule that investors bear the burden of showing that pooling and servicing agreements for their loans, taken “as a whole,” require Countrywide to buy back the loans.

Bank of America could not immediately be reached for comment. A published report said a spokeswoman agreed that the court did not rule on the merits of the plaintiffs’ claims.

The current case was brought by two investment funds holding Countrywide mortgages, Greenwich Financial Services Distressed Mortgage Fund 3 LLC and QED LLC.

These investors complained they would be harmed if Countrywide shifted the burdens of loan modifications to 374 trusts into which loans had been repackaged and securitized.

These investors would rather Countrywide repurchase modified loans for the full unpaid amounts.

Countrywide had been the largest U.S. mortgage lender before Bank of America acquired it last July for $2.5 billion.

The case is Greenwich Financial Services Distressed Mortgage Fund 3 LLC and QED LLC v. Countrywide Financial Corp, U.S. District Court, Southern District of New York (Manhattan), No. 08-11343. (Reporting by Jonathan Stempel, with additional reporting by John Tilak in Bangalore)

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Thomson Reuters journalists are subject to an Editorial Handbook which requires fair presentation and disclosure of relevant interests.

Aug

Bankruptcy Judges & DOJ Rip Mortgage Companies

By LH | Featured, Foreclosure Rights, Housing & Economic Research, Loan Modification

1592Leave a Comment2009-08-17+16%3A10%3A47LH

Below is another story about Servicer abuses… At least some judges see the issues and are not allowing personal viewpoints or prejudices to cloud their assessment of how terrible the situation is for a homeowner in mortgage hardship or distress.

The servicers are also the main players in the massive foreclosure fraud that is occurring around this country.

One would think that at some point, the legal system is going to stop the train of abuses justice suffers because of the systemic fraud that is committed by servicers trying to foreclose on homes they have no financial stake in.

Bankruptcy Judges & DOJ Rip Mortgage Companies

by Karen Weise, ProPublica

“Systemic abuse.” “Extraordinary incompetence.” “Reckless.” In a growing body of legal cases, judges and the Justice Department are breaking from legal jargon to starkly chastise mortgage companies.

As mortgage delinquencies rise, more and more homeowners are learning the central role that mortgage servicers play in their lives. The legal cases show that role can be distressing. Judges have found that major mortgages servicers regularly mess up basic accounting, improperly credit payments and charge unwarranted fees. They’ve “not done a very good job of keeping the records,” said Judge Samuel Bufford of California.

Mortgage servicers — typically either bank subsidiaries or independent companies — handle the day-to-day work with homeowners, ranging from collecting monthly payments to determining when to modify or foreclose. Problems with servicing often, but not always, occur once homeowners start having trouble making payments.

Complaints to the government about mortgage servicers have soared in recent years. They’ve risen from 31 percent of the complaints that the Department of Housing and Urban Development received in 2006 to 78 percent in 2008, according to HUD spokesman Lemar Wooley.

Problems Exposed in Bankruptcies

Many homeowners in bankruptcy have legal representation and must settle claims with servicers. As a result, the process has revealed and documented a slew of servicer problems.

In many rulings, judges have shown frustration and even outrage. They’ve ruled that servicers have attempted to collect unjustified fees, charged homeowners for unnecessary insurance, failed to properly credit homeowners’ payments and failed to provide evidence to back up fee requests. In most cases, judges demand that servicers fix the problems and unwind the unjustified fees; sometimes, judges award damages and attorneys’ fees. In one extraordinary case, a judge issued $750,000 in emotional and punitive damages. (We’ve compiled five sample cases and rulings for you to see here.)

The Moffits with their grandchildren.

Take the case of Donald and Phyllis Moffitt of Arkansas. In June 2008, bankruptcy Judge Audrey Evans issued a restraining order against America’s Servicing Company, a division of Wells Fargo, saying it must stop attempting to collect payments that the Moffitts did not owe. In a 41-page ruling (PDF), the judge wrote:

“The evidence supports the premise that ASC’s servicing procedures, as exemplified by the Moffitts’ account, are not organized to assure accuracy and accountability. … ASC misapplied these payments, failed to record the correct information even though Mrs. Moffitt constantly called and talked to ASC’s agents, failed to follow her written instructions, failed to communicate with the Moffitts, sent mortgage statements that were incomprehensible and frightening, began collection calls, and engaged in a litany of mismanagement of the Moffitts’ loan.”

Wells Fargo did not respond to a call for comment.

A 2007 study looked at a majority of Chapter 13 bankruptcy filings in 2006 and found that in 70 percent of the cases studied, mortgage companies claimed homeowners owed an average of $6,309 more on their loans than homeowners believed.

Problems with servicing are not limited to families filing for bankruptcy, Katherine Porter, an author of the study and an associate professor at the University of Iowa’s law school, testified before Congress last year. She said servicers commonly foreclose when they do not have the legal right to do so, impose unwarranted or illegal fees, and miscalculate how much families owe.

In several instances, judges have taken broad action to address persistent problems with a servicer. This May, Judge Elizabeth Magner in Louisiana said her review of multiple cases involving Ocwen Loan Servicing had shown the servicer regularly acted in “bad faith.” The judge said Ocwen had charged improper fees and attempted to collect bankruptcy-related fees after the court closed a case. In one of the cases, Ocwen took 10 months to provide a full accounting of fees.

The judge wrote that Ocwen’s “systematic abuse” required more than monetary sanctions, which had not stopped the behavior in the past, so Magner issued an order (PDF) forcing Ocwen to follow specific accounting procedures. (We’ve noted before that Ocwen’s servicing procedures have raised eyebrows in the past). Ocwen’s general counsel, Paul Koches, said the company disagrees with the ruling and is pursuing an appeal in U.S. District Court.

Justice Department Takes Action

The Justice Department’s United States Trustee Program is a watchdog over the bankruptcy process. Its 21 regional offices oversee more than 1,300 private trustees who mediate between debtors and creditors in individual bankruptcy cases.

The Trustee Program’s annual report said combating servicer abuse (PDF) was a top priority last year. The program initiated 68 actions (PDF) against what it calls “systemic abuse” by mortgage servicers, including 25 large servicers such as Countrywide, HSBC and JPMorgan Chase, according to public documents (PDF) and speeches (PDF). The Trustee Program has sued Countrywide in at least six states.

Countrywide, now owned by Bank of America, is the largest participant in the federal Making Home Affordable program to modify troubled mortgages. A recent analysis by the Associated Press found that at least 30 of the 38 mortgage companies that have signed up for the program have been sued over their servicing practices.

In response to one U.S. trustee’s suit in Ohio, Judge Marilyn Shea-Stonum ruled in May (PDF) that Countrywide had charged fees with “no factual basis” and wrote: “Countrywide’s system is reckless. It appears to me designed to allow each actor in the process to act with indifference to the truth, and to rely solely on the limited information made available at each step. … [The errors in this case] evidence Countrywide’s disregard for diligence and accuracy.”

The judge is currently determining monetary and other sanctions. Countrywide spokeswoman Shirley Norton said, “We are reviewing the ruling and considering our options.”

Private trustees have sued servicers as well. Debra Miller, a private trustee in Indiana, has been active in litigation where servicers haven’t complied with federal regulations. Typically, she said, private trustees try to obtain settlements that are more about changing practices than monetary compensation. “Our job is to force mortgage companies to improve their systems,” she said.

Both the Justice Department and private trustees have stepped in to fill what they see as a regulatory void covering mortgage servicers, according to Andrea Celli, a private trustee in upstate New York.

Future Oversight Under Debate

Currently, a hodgepodge of agencies oversees mortgage servicing. HUD, the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the Federal Trade Commission and the Federal Reserve all have partial authority.

Concern over mortgage servicing was part of the early discussions about the proposed new Consumer Financial Protection Agency, according to Eric Stein, the Treasury Department’s deputy assistant secretary for consumer protection. The CFPA, as proposed by the Obama administration, would be the primary watchdog for servicer abuses.

Servicers are resisting the new consumer agency. Paul Leonard, a lobbyist for the Financial Services Roundtable, said his organization’s members believe that there should be better coordination among regulators and that existing agencies can handle the responsibility.

Tara Twomey, a lecturer at Standford Law School who co-authored the large study of bankruptcy cases, says that more regulation would help, but it would only be a “Band-Aid.” “The more fundamental problem is one of market structure,” she said. “Borrowers don’t get to choose their servicer.”

Aug

Mortgage Hardship: Solutions to Avoid Foreclosure

By LH | Foreclosure Rights, Forensic Loan Audits, Homeowner Resources

1110Leave a Comment2009-08-05+01%3A35%3A09LH

Here’s a link to my similar article at EZinesArticles.com: http://ezinearticles.com/?Mortgage-Hardship—Solutions-to-Avoid-Foreclosure&id=2710389

If you are facing a hardship with making your mortgage payments, you’re not alone. The national foreclosure rate is now at one in every 555 households. If you live in the Ft. Myers/Cape Coral area, that statistic jumps to 1 in every 18 households now in foreclosure.

A mortgage hardship is very common with unemployment numbers rising daily and US homeowners losing the values in their homes on a monthly basis as well

When someone loses their income they go through all sorts of emotions when they cease to have the ability to pay their bills. Fear can easily be all-consuming when facing a mortgage hardship and foreclosure.

The first thing I tell my clients is to not be afraid. Fear can take a root in our lives and cripple us from taking action and acting wisely.

Don’t cave in to the fear tactics of your mortgage servicer or lender – or any other creditor for that matter. You’re still in control even though you may not feel like it.

There are precise steps you can take to protect yourself and your interests. There are legal rights that you possess and can use to help yourself in difficult times. The biggest challenge is that most American consumers and homeowners don’t know they have legal rights. You have foreclosure rights…when you’re facing a mortgage hardship, all hope is not lost.

We have helped families stay in their home for an extra 6 months, 8 months and over a year. We never provide a precise time frame or outcome. There are so many variables… if you have a company giving you a bunch of promises and charging a lot of money upfront for now finite service, be extremely wary and cautious.

Another very likely issue is that the financial institution attempting to collect and/or foreclose doesn’t even own your loan or have the legal right to collect. Over 80% of all foreclosures filed in Florida right now contain a “Lost Note” count alleging that they (the plaintiff) have lost the most important document as evidence of the debt they claim you owe – the Note

There are several affirmative defenses that a qualified and competent foreclosure attorney will know how to bring in your case.

A TILA mortgage rescission may be something that you can assert if there are material disclosure violations found in a forensic loan audit of your loan documents. Obtaining a true forensic loan audit is probably the best first step you as a homeowner in mortgage hardship can take.

A forensic loan auditor will truly break down the entire package of loan documents and examine them for state and federal loan violations along with a forensic examination for fraud and failure to disclose, appraisal fraud and loan application and underwriting fraud.

Be certain that you are truly dealing with a reputable and knowledgeable auditor. I find that a very select few of us really know what to look for and truly know the laws. So many people will tell you what you want to hear without preserving integrity and honesty.

There is a litany of scams out there so be careful. Take your time, ask questions, find a professional who will help and educate you. Knowledge is truly power. The more you know and understand your foreclosure rights, the better off you’ll be.

Quantified violations of the Truth in Lending Act (TILA) and other federal violations can be used a Claims in Defense by Recoupment in any foreclosure action brought against you. A forensic loan audit (done right) is highly valuable for you.

You’ll land on your feet. You’ll make it through this tough time. Be a sponge for information, read it with common sense in mind and find a person or two who can be your mentor or advisor through this time. You’ll make it… I promise.

Aug

Revive the BK Cramdown Bill?

By LH | Featured, Foreclosure Rights, Housing & Economic Research

1072Leave a CommentRevive+the+BK+Cramdown+Bill%3F2009-08-04+16%3A09%3A26LH

The report below from Bloomberg.com demonstrates how bad we need a revival of the mortgage cramdown provisions proposed a few months ago. These corporate institutions are run by greedy bastards. They are elitist. They care nothing for people. They steal and they cheat and they commit fraud at will. Their attitude is “sue us, we don’t care that we violate federal law with regularity and we really don’t care about you or your kids. Just get out of the home you’re behind in payments on. Nevermind that we really don’t have a financial stake in this anymore since we were paid in whole on your loan years ago.”

I even love the name “cramdown.” This is exactly what homeowners and consumers need to do these institutions… cram it down their throats. Use the resources on this blog and elsewhere and fight. Give ‘em hell.

Also, important note. Bloomberg.com reports that Bank of America and Wells Fargo & Co. are the worst. There are PLENTY of really bad companies out there. Some that come to mind from first hand experience helping homeowners are:

Taylor Bean and Whitaker (which also happened to be raided by the FBI yesterday in their corporate office in Ocala, FL)
Suncoast Schools Federal Credit Union - considering that their client base is made up of teachers, nurses, police officers and the like, you’d think they be pretty good about working with their members who have run into difficulty. Think again. Suncoast is HORRIBLE! I would never have my bank account with them. Not in a million years.
Countrywide – yes, it’s Bank of America now but you still have to deal with Countrywide people and these guys are nothing short of a disaster.
Fifth Third Bank - Terrible. Bastards. If you have money in an account with them, I’d pull it. Exercise your right to NOT support an institution that simply does NOT care about people.

You have foreclosure rights if you’re facing foreclosure. Exercise those rights vigorously. Contact me if you need help…

Aug. 4 (Bloomberg) — Bank of America Corp. and Wells Fargo & Co. were the worst performers among the biggest U.S. banks in modifying loans for struggling homeowners, according to a Treasury Department report.

Bank of America began 27,985 trial loan modifications, or 4 percent of its eligible loans, under the government’s Making Home Affordable program started in March, the report today shows. Wells Fargo had a 6 percent rate, trailing JPMorgan Chase & Co.’s pace of 20 percent, and Citigroup Inc.’s 15 percent.

“Some of the servicers could have ramped up better, faster, more consistently,” Michael Barr, the assistant Treasury secretary for financial institutions, told reporters in a conference call today. “We expect them to do more.”

The government is trying squeeze better results out of its main anti-foreclosure program, which has put about 235,000 borrowers on the path to loan modifications out of the 4 million targeted for help. National Economic Council Director Lawrence Summers has said the Treasury report is an effort to create transparency about which mortgage servicers are helping most.

“The biggest servicers certainly have the biggest ships to turn,” Seth Wheeler, a deputy assistant Treasury secretary for federal finance said in an interview yesterday before the report was released. “Some of the strongest performers are smaller servicers, but it’s not a uniform correlation.”

The report shows the levels of homeowner assistance for the 38 companies participating in President Barack Obama’s $75 billion loan modification program. The Obama administration said last month that it’s setting a goal of starting at least 500,000 trial modifications by Nov. 1.

‘A Little Nimbler’

Wachovia Corp., which San Francisco-based Wells Fargo acquired, had a rate of 2 percent, the data shows.

Many banks don’t yet have the capacity to process the volume of loan modifications being demanded, said David Sisko, the head of default management services for Deloitte & Touche LLP. He said modification specialists have gone from processing an average of 50 to 100 loans a month to 200 to 300.

“The smaller banks and servicers are probably a little nimbler,” Sisko said.

Pasadena, California-based Wescom Central Credit Union had a 28 percent rate for its 136 eligible loans, the best performer on the list. Morgan Stanley’s Saxon Mortgage Services had begun trials on 25 percent of 84,130 eligible loans, the second-best performance. Aurora Loan Services, a former unit of Lehman Brothers Holdings Inc., had started modifications for 21 percent of 72,838 eligible loans. GMAC Mortgage Inc. was at 20 percent.

Eligible Loans

Eligible loans are those that are at least 60 days past due, in foreclosure or bankruptcy, and originated prior to 2009. The underlying property must be owner occupied and conform to Fannie Mae and Freddie Mac loan limits, which can be as high as $729,750 in some areas. The data excludes Federal Housing Administration and Veterans Affairs loans.

The Making Home Affordable program requires banks that received federal aid from the Treasury’s Troubled Asset Relief Program, or TARP, as well as mortgage-finance companies Fannie Mae and Freddie Mac to lower the monthly payments for borrowers at “imminent risk” of default. Banks can lengthen repayment terms, lower interest rates to as low as 2 percent and forbear outstanding principal, among other methods.

“A lot of these modifications are very hard to do, it takes time and you can’t rush it,” said Paul Miller, a bank analyst for FBR Capital Markets in Arlington, Virginia.

Bank of America modified 150,000 loans through other programs in the first half “as we ramped up to make” Obama’s program operational, Dan Frahm, a spokesman for the Charlotte, North Carolina-based company, said yesterday.

Bank of America, Citigroup

“Just as you can’t judge a student’s performance for the semester by looking at their grade for one class, Making Home Affordable is one component of a comprehensive program Bank of America has in place to support homeowners,” Frahm said.

Citigroup is “pleased with our numbers and with what we have been able to accomplish in the past two months,” Mark Rodgers, a spokesman for the New York-based bank, said. “But we can, and want to, do more. We look forward to continuing to work with the government, industry participants, non-profits and others to help keep more distressed American borrowers out of foreclosure and in their homes.”

Citigroup and Bank of America each received about $45 billion from TARP, while Wells Fargo took $25 billion.

Faster Pace

Loan servicers send out bills, collect debts and keep records for mortgage lenders. A group of servicers met with Obama administration officials on July 28 and pledged to step up the pace of loan modifications to keep more homeowners from sliding into foreclosure, according to the Treasury.

JPMorgan Chase is happy with its progress so far, said Christine Holevas, a spokeswoman for the New York-based company.

“That always has to be tempered with the fact that the demand is great; we know that we have more to do,” Holevas said. “We believe we’ve made significant progress. We’ve ramped up, we’ve hired people, we’ve added office space, we’ve invested in technology.”

JPMorgan Chase said June 30 that it approved 87,100 loans for modification under the administration’s plan since April 6.

Under Pressure

Senate Banking Committee Chairman Christopher Dodd, a Connecticut Democrat, assailed the administration at a hearing last month for the sluggish results from anti-foreclosure programs, while industry executives spoke of “confusion and delay” from how the government sets rules for the programs.

“The government is under a lot of pressure to react and they announce these programs where the infrastructure is not in place to service the program,” Miller said.

More than 1.5 million properties received a default or auction notice or were seized by banks in the six months through June, Irvine, California-based RealtyTrac Inc. said July 16 in a statement. That’s a 15 percent increase from a year earlier.

Barr said officials are seeing some “encouraging signs” that “our mortgage markets may be beginning to reach a point of stabilization.”

“It’s obviously still early to tell the nature of the mortgage markets what direction they may be headed,” Barr said on the conference call. “These encouraging signs are helpful, but it took a long time to create the financial crisis we are in and it will take a long time to get out of it.”

To contact the reporter on this story: Dawn Kopecki in Washington at dkopecki@bloomberg.net;

Jul

Fighting the Foreclosure War – Get the Media Involved

By LH | Featured, Foreclosure Rights

619Leave a Comment2009-07-25+17%3A58%3A26LH

The chips are stacked against the regular folk who by the way are the backbone of our country. We are the majority and we do have power. It’s the regular people who are protecting our country and freedoms abroad. It’s regular people who take care of us in our local hospitals. Its the regular guy who fights fires, protects our neighborhood… and its these same regular people who are being abused by the system every single day. Who are being lied to by local, state and federal politicians who care more about the lobby that funds their re-election campaigns than you!

The war on foreclosures is really, in some ways, the epicenter of this larger fight for our rights as citizens. It’s the fight for representation because I really don’t see any elected official willing to fight for us no matter what it takes.

Getting attention of more and more people as to what is happening is one way to shift some of the chips in this game over to the regular folk. Getting the attention of the media is one way to create more awareness and put pressure on elected officials to actually do the JOB they were elected to do. That job is literally and truly – representation – of those in their community, state and country who ELECTED them in the first place.

Politicians (I call them elected officials) only have power because it was granted them by our vote. Our vote next time around is how we take power back. But that requires a majority and that requires attention… getting the attention of a majority as to what is really happening. So take your voice to the media as part of the way you fight this war!

I have done precisely that in our local community – Ft. Myers/Cape Coral, Florida. The Ft. Myers News Press is now running a series on foreclosure. Last Sunday, July 19th the News Press ran several articles on the foreclosure situation here to which I was a contributor. I followed that series of articles with a response to some comments our local Clerk of Court had regarding foreclosures. Those comments were featured in a Guest Editorial.

The articles and my guest editorial can be read by using the links below. I’m also including a video of a nice woman I helped as well. The News Press interviewed her. Linda’s message was simply, “You gotta fight…” I hope this encourages more of you reading this to take your fight, and your opinions, to your local media. Get them to help you. The squeaky wheel gets the grease as they say…

“Still Hope for Homeowners in Foreclosure” – Ft. Myers News Press, July 19, 2009

“Foreclosures Create Human Drama” - Ft. Myers News Press, July 19, 2009

“Court Ordered Mediation can cut foreclosures” - Ft. Myers News Press, July 19, 2009

“Comments by Lee County Clerk of Court Miss the Human Reality of Foreclosures” – Guest Editorial by Lane Houk, Ft. Myers News, July 22, 2009

May

Foreclosure Rights – Basics in Homeowner Foreclosure Defense

By LH | Foreclosure Defense Research, Foreclosure Rights, Forensic Loan Audits, Truth in Lending

5623 Comments2009-05-19+13%3A50%3A29LH

By Lane Houk
May 19, 2009

I realized this morning that it’s been a while since I’ve covered the basics of foreclosure defense. For those of you readers who are behind in their mortgage and trying to work something out with the lender (who is usually just the servicer of your loan, not the owner), you should beware that MOST of these institutions do not deal with you, the homeowner in good faith. Every time I see the news media covering some ridiculous thing they call “reporting” of the facts, fair and balanced or whatever, what they “report” is that banks are hurting, the government is going to save the “people” from this mess and servicers are doing everything they can to help. Call this number, call that number and you’ll get help. Go to this government site, or that for more information… yadda yadda yadda.

If you’re reading this right now then you or someone you know is in serious hard times, you’re thinking that it must just be you and your family having such a hard time because the news is telling you how many people are getting help, you’re just not one of them.

Try again. I’m in this fight everyday with regular American people. Hard working types… and they’re trying to survive right now. But it’s not easy. Hopefully this blog can help you get pointed in the right direction…

Regarding foreclosure, you first need to know: If you’re state is a judicial state or non-judicial state. It makes a big difference in HOW the foreclosure process plays itself out. CLICK HERE for a great resource chart on this.

Basically, if you’re in a judicial state, the party claiming a right to foreclose files a lawsuit in the local court system and you’ll get served with that lawsuit. Defend yourself. In what other lawsuit would you just lay down and die. A wise person defends them self against any and all lawsuits that are filed against them. Right?

If you’re in a non-judicial state, no court case is needed. It usually starts by the part serving you with a Notice of Default. The deed in your name is probably being held in trust and will be turned over within a statutory time frame once the state laws have been followed to do so.

My expertise is in the Florida process. Florida is a judicial state. So for this article’s sake, I’ll go through the foreclosure process for Florida.

Step Two: You’ve been served with foreclosure papers (ie. the complaint). Now what? You have 20 days to respond to this lawsuit (30 days in some states). You also have 30 days to dispute the debt under your federal rights found in the Fair Debt Collection Practices Act (you may also have state collection laws that afford your rights as well). So, in other words, you have a right to dispute the exact amount they claim that you owe THEM.

Remember. You have 20 days to respond. Don’t mess around with this. If you’re in danger of missing that deadline, at least file a Motion for Enlargement of Time which is legalese for “I need more time to get my answer filed because I’m still searching for counsel to take my case.”

Which leads me to Step Three: Get an attorney! Hire one, find one but please make sure they know foreclosure defense, really. Ask them how many cases they’ve taken. Be wise, hire an attorney. If they’re being fair to you and not gouging you on the fees, hiring them will save you money, not cost you. Contact me if you don’t understand why or how…

Step Four: Read the entire complaint you were served. You need to read it and try to understand it. Don’t be fool in life… there are far too many people who just don’t take the time to learn and understand how things work. Some because of fear, some become of laziness. Neither is good, ever, but especially when you’re being sued for a lot of money.

What comes next is kind of like a game of ping pong. They file the complaint… you answer the complaint, ball is back on their side, you wait to see what they hit back at you, etc. etc.

This is also the point where every case takes on a life of its own. There’s really no set way that a foreclosure case goes from here. However, generally speaking, the Plaintiff in the case is going to attempt to get a “Summary Judgment” in the case. This is legalese for quick judgment against you. No issues of material fact present. They win, you lose and you have future financial liability with the deficiency if one will exist after they sell the home.

I’ll make the biggest point of the article right here: Most of the Plaintiff’s in these cases DO NOT, I repeat, DO NOT own the Note that they say you defaulted on. These plaintiffs are either servicers or trustees – both agents for a securitized trust. More than this, I see sloppy, missing and even fabricated paperwork filed by the attorneys representing these big institutions; or they have outsourcing companies to do their dirty (paper) work. You know, plausible deniability stuff. Just beware… if they don’t own the loan, they’ll act like they do and create documents (like an assignment of mortgage) out of thin air to make it look like they do. If you think I’m kidding, just CLICK HERE to read an article by Peg Brickley from Dow Jones and posted online at the Wall Street Journal; this article briefly exposes just a bit of what companies like Fidelity National Information Services are doing in the loan default business boon.

A good auditor/investigator knows what to look for, what documents to inspect and where to find the securitized trust documents – or how to get them.

If you and your attorney are successful in defeating summary judgment, this is a big victory. This is what a good attorney is going to do first. Win the smaller battles and you might win the war. Summary judgment is the first battle in a foreclosure case. Look at every other type of civil or criminal case in our court systems and you’ll find that Summary Judgment is rarely granted. I said rarely and you can check that.

Now compare that with civil foreclosure cases… what you’ll find is that Florida judges are granting plaintiff’s motion for summary judgment in MOST cases. Foreclosure is just another type of civil case… why the MAJOR disparity in this? You think the judges don’t have an opinion about this. There are some rare good ones who actually appreciate the law and respect due process rights of citizens and aren’t going to let these institutions just walk into court and do whatever they want with no respect for the lawful process a foreclosure is supposed to go through.

So to have the best chance at defeating summary judgment, the defendant needs to establish (for the record) genuine issues of material fact. These are your affirmative defenses and there are many standard ones that attorneys should be using and there are some “big bullets” if you will that can be quantified through a forensic analysis and audit of all loan documents, notices and disclosures by the lender, servicer, broker, title company, etc. It’s a rare occasion that I don’t find violations. These violations are absolute issues of material fact. Summary judgment would be improper and there is well established case law on this in Florida.

Once summary judgment is denied, this foreclosure case has to go to a full trial. A good attorney files comprehensive discovery on your case. I mean comprehensive too. I want every document that pertains to this loan. It’s all material… I want the transfer records of the Note, the PSA, the Prospectus and Registration Statement, the accounting records, etc. etc. etc.

These documents once requested need to be produced or the court can be moved to compel the plaintiff to produce. Yes, their attorney will try to make some garbage up about the information requested is proprietary or can’t be produced due to privilege or whatever. This is when you can tell these guys just thumb their nose at due process and say we don’t think the consumer deserves it or has a right to it. This is also when you know they’re hiding something. First off, it’s not proprietary knowledge, its PUBLIC DISCLOSURE! It’s a loan that you say some six to seven figure number is owed by the defendant, the documents for these transactions have to be disclosed to the SEC, the IRS, shareholders, certificate holders, trustees, servicers, custodians, master servicers, depositors, issuers and several other federal agencies. But the borrower has no right to see these documents and have them produced for the record in the lawsuit against them. Right. Give me a break.

This game of ping pong can carry on for many months and often times a year and more. The bottom line to this: YOU HAVE FORECLOSURE RIGHTS! You have a right to due process. You have a right to defend yourself and you should! Find the professionals to help you and fight the war on the home front!

May

Recoupment: A Powerful Claim in Foreclosure Defense

By LH | Foreclosure Defense Research, Foreclosure Rights, Forensic Loan Audits, Homeowner Resources, Truth in Lending

495Leave a Comment2009-05-18+01%3A51%3A49LH

By Lane Houk
May 18, 2009

If you are a practicing attorney: Are you using Defense by Recoupment under 15 U.S.C. 1640(e) as a strong affirmative defense for your clients?

If you are a consumer: Have you had your loan (from day of application to current) audited by a forensic consumer debt analyst?

I get a fair amount of “conspiracy theory ” calls or emails people who would swear that the CIA was covertly involved in the loan they signed for and that all measures of fraud occurred against them by everyone involved and… you get the point. My first question to this person is always: “Great, so are you prepared for the $15,000+ retainer a good attorney is going to want to spend their time investigating, quantifying, pleading and trying a case like that? Well, you know the answer…

Others have read (or have heard) that a loan audit and violations of the TILA can only help you if it’s a refinance loan on a primary residence in the last three (3) years. To have the EXTENDED RIGHT TO RESCIND, these conditions must be in place but rescission isn’t the only thing that can help someone in (or in danger of) foreclosure.

When it comes to defending yourself against foreclosure the first order of business is to establish clear and genuine issues of material fact in the case. In a Florida foreclosure defense strategy, the client wants to quantify these genuine issues of material fact in the foreclosure case because no judge should ever grant a motion for summary judgment. Why?

In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men’s Christian Association of Lake Wales, Inc., 974 So.2d 565. A “material fact,” for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214.

Successfully defeating summary judgment is a big score in favor of the consumer and can greatly improve the chances of obtaining a viable and fair workout and thus ultimately, avoiding foreclosure.

So, one area of practice Lane Houk and his team help consumer attorneys with is by completing a forensic loan audit on the client’s loan documents from the day they applied for that loan through to current day. Why would a foreclosure client want this done? Let’s think about it…

Often times, the client did not receive proper “pre-closing disclosures” under both Truth in Lending laws (TILA) and Real Estate Settlement Procedures Act (RESPA);
Especially when there was a mortgage broker or interim lender involved
The actual “lender” in the transaction was under same timeframe obligations to make specific disclosures to client from the day they received application
The many servicing abuses which could have taken place from day of closing to current
Insufficient amount of certain disclosure violations
Escrow mishandling abuses (I’ve seen people nearly lose their house to a bona fide mistake the bank made but wouldn’t budge until a good attorney got involved)
The list goes on…

Under the TILA civil liability section [15 U.S.C. 1640(e)] regarding violations it says that any action under that section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation. But, that subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment…

A consumer can only bring an action for damages within one year from the date of closing. However, the consumer is not barred from bringing a claim as a “matter of defense by recoupment” in a foreclosure action because a foreclosure action is an action to collect the debt. (ie. almost all foreclosure complaints are served with some level of disclosure that “this is an action to collect on a debt”) however NOT disclosing that does not necessarily preclude that any such action is NOT an attempt to collect on the debt.)

Any such quantified claim of a violation of the TILA (Truth in Lending Act) from an expert audit report should be brought as an affirmative defense by the attorney. This is a rock solid issue of material fact. No summary judgment. The lender will have to bring the action all the way through to trial. This should give you much greater leverage to obtain a workout. At the very least, this give you/your client much greater time in the house and time to try to work something out that works for both parties; something that is much needed these days because I still see a great deal of servicer abuse/misprepresenations happening every single day.

When it comes to auditors, remember that as with any professional, most often you will get what you pay for. If you have some company offering you an audit for a couple hundred bucks, you’re going to get that level of expertise and report back. A good expert auditor and their service should be in the $750.00-1000 price range. More or less than that just be careful.

I hope this little insight gives you some ideas on how you can help yourself in a foreclosure case. If you want more information on forensic loan audit, please call me at (800) 985-4685 ext. 2 or by email at Lane@thePatriotsWar.com

May

Foreclosure Rights – What You Need to Know!

By LH | Featured, Foreclosure Defense Research, Foreclosure Rights, Forensic Loan Audits, Homeowner Resources, Loan Modification

511Leave a Comment2009-05-06+02%3A26%3A25LH

What you need to know about your Foreclosure Rights

by Lane Houk
May 5, 2009

Did you know that over 98% of all people who are served with a foreclosure suit or notice of default do NOTHING to defend themself in the process? That’s a fact.

If you were sued today by someone for $150,00 would you just ignore the lawsuit? No way! You’d run out, talk to an attorney and defend yourself against the allegations. But this is exactly what most people do when they get sued in foreclosure…NOTHING!

I think this happens because most people just don’t know they have legal rights, foreclosure rights. Yes they owe the money and they know that; and, a legal defense isn’t about denying that the money was borrowed. By now, the “Produce the Note” strategy has become more common knowledge; and, by all measures that’s a great piece of the puzzle but is by no means the entire enchilada in a comprehensive legal defense to foreclosure.

So let me simplify the message… you have Legal Rights in Foreclosure! Claim them! In Florida, if you don’t claim these rights in the first twenty (20) days, you automatically waive them. Ouch! Don’t do that. You also don’t want to waive them by pretending you know what you’re doing and writing your own defense. Pro Se foreclosure defense isn’t what it’s all cracked up to be. What are you going to say to a judge in a Summary Judgment hearing? What answer will you have for the first piece of foreclosure case law opposing counsel throws at you. Hire an expert foreclosure defense attorney. Trust me, it won’t cost you money, it will save you money – if you hire the right one.

Next, hire an expert to complete a forensic loan audit. You’re foreclosure rights are extended when violations of the Truth in Lending Act (TILA), the Real Estate Settlement Procedures Act (RESPA), the Home Ownership & Equity Protection Act (HOEPA) and state law violations can be found and quantified in a well structured Forensic Audit Report. Beware of all the folks popping up on the radar doing this. Most of them are only software driven and thus, aren’t “forensic” in any kind of way. Remember a age-old golden rule… “don’t believe everything you hear” and “cheaper isn’t usually better.” A true forensic auditor takes a couple hundred documents and forensically analyzes them, looks for the idiosyncracies, the story if you will, and pieces the violations together to make a case. One a real, practicing attorney can use as evidence in court.

Your foreclosure rights are there… you just have to know what to do, where to go, who to see and why. Trust me, it will save you money, save your home and mitigate your liability.

If you have further questions, contact me.

MSNBC.com

New foreclosure defense: Prove I owe you Homeowners demand lenders produce original documents – some can’t
The Associated Press updated 3:59 p.m. ET, Tues., Feb. 17, 2009

ZEPHYRHILLS, Fla. – Kathy Lovelace lost her job and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork.

And just like that, the foreclosure proceedings came to a standstill.

Lovelace and other homeowners around the country are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

During the real estate frenzy of the past decade, mortgages were sold and resold, bundled into securities and peddled to investors. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed.

Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, buying the homeowner some time and turning up the pressure on the lender to renegotiate the mortgage.

“I’m going to hang on for dear life until they can prove to me it belongs to them,” said Lovelace, a 50-year-old divorced mother who owns a $200,000 home in Zephyrhills, near Tampa. “I’ll try everything I can because it’s all I have left.”

In interviews with The Associated Press, lawyers, homeowners and advocates outlined the produce-the-note strategy. Exactly how many homeowners have employed it is unknown. Nor is it clear how successful it has been; some judges are more sympathetic than others.

More than 2.3 million homeowners faced foreclosure proceedings last year and millions more are in danger of losing their homes. On Wednesday, President Obama will unveil a plan to spend at least $50 billion to help homeowners fend off foreclosure.

Chris Hoyer, a Tampa lawyer whose Consumer Warning Network Web site offers the free court documents Lovelace used to file her request, has played a major role in promoting the produce-the-note strategy.

“We knew early on that the only relief that would ever come to people would be to the people who were in their houses,” Hoyer said. “Nobody was going to fashion any relief for people who have already lost their houses. So your only hope was to hang on any way you could.”

Tom Deutsch, deputy executive director of the American Securitization Forum, a group that represents banks, law firms and investors, dismissed the strategy as merely a stalling tactic, saying homeowners are “making lawyers jump through procedural hoops to delay what’s likely to be inevitable.”

Deutsch said the original note is almost always electronically retained and can eventually be found.

Judges are often willing to accept electronic documentation. And lenders are sometimes allowed to produce other paperwork to establish they are the holder of a loan. Still, assembling such documents to a judge’s satisfaction takes time, which to homeowners is the point.

Lovelace filed her produce-the-note demand last fall after the bank acknowledged that her original mortgage document had been lost or destroyed. Since then, there has been no activity on the foreclosure – no letters from the lender, no court filings.

The law firm handling the foreclosure for the lender refused to comment.

A University of Iowa study last year suggested that companies servicing mortgages are often negligent when it comes to producing the documentation to support foreclosure. In the study of more than 1,700 bankruptcy cases stemming from home foreclosures, the original note was missing more than 40 percent of the time, and other pieces of required documentation also were routinely left out.

The first big success of the produce-the-note movement came in 2007 when a federal judge in Cleveland threw out 14 foreclosures by Deutsche Bank National Trust Co. because the bank failed to produce the original notes.

Michael Silver, a lawyer for two of the families in that case, said at least one eventually lost their home. Still, he considers that a success.

“From the perspective of the person who’s in the home, you may have kept them in the house another 10 or 12 months,” he said. “If I can get a result with economic benefits to a client, then I think I won.”

Democratic Rep. Marcy Kaptur of Ohio endorsed the strategy in a fiery speech on the House floor during debate on the federal bank bailout last month.

“Don’t leave your home,” she said. “Because you know what? When those companies say they have your mortgage, unless you have a lawyer that can put his or her finger on that mortgage, you don’t have that mortgage, and you are going to find they can’t find the paper up there on Wall Street.”

April Charney, head of foreclosure defense for Jacksonville Area Legal Aid in Florida, said the strategy has been so successful for her that she now travels around the country to train other lawyers in how to use it. She said she has gotten cases delayed for years by demanding that lenders produce paperwork they cannot find.

“This is an army of lawyers getting out there to stop foreclosures so we can get to the serious business of creating solutions,” Charney said. “Nothing good is going to happen as long as we continue to bleed homeowners.”

Daily Finance- Why The Foreclosure Mess Cannot Be Solved….

The Foreclosure Mills and The Florida Legislature Want To Change The Florida Constitution!

First They Came for the Homeowner in Foreclosure, and I didn’t Speak Up…

BOMBSHELL- Florida Circuit Court Judge’s Orders Save Jobs and Reclaim Millions in Lost Taxpayer Dollars

Deposition of Expert Witness (Yours Truly) in a Securitized Trust/Trustee Foreclosure Case

By Lane Houk
November 11, 2010

If you would like more information on this, please feel free to contact me at 800-985-4685.

Hot Off the Press – CA Federal Judge Grants Homeowner TRO against Chase

BOMBSHELL- Tampa Tribune Article on Service of Process and Overbilling Fraud

Scathing Testimony by former employee of David J. Stern

Florida Law Firms Subpoenaed Over Foreclosure Filing Practices

Finally, a Judge Willing to Hold Lenders/Servicers Accountable!

Bank of America loses in Federal Ruling – Judge says investors own the loans

Bankruptcy Judges & DOJ Rip Mortgage Companies

Mortgage Hardship: Solutions to Avoid Foreclosure

Revive the BK Cramdown Bill?

Fighting the Foreclosure War – Get the Media Involved

Foreclosure Rights – Basics in Homeowner Foreclosure Defense

Recoupment: A Powerful Claim in Foreclosure Defense

Foreclosure Rights – What You Need to Know!

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By Lane Houk November 11, 2010

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November 11, 2010