News, Research & Insights for American Homeowners, Patriots & Constitutional Conservatives
"I can't understand how a man that has children of his own could do this."
Is the gubernatorial power to pardon free from judicial jurisdiction in Mississippi? Haley Barbour’s flurry of pardons at the end of his term as governor in Mississippi has the victims and their families of the pardoned worried about retribution and the state’s Attorney General accusing him of abuse of power. Last night, a state judge [...]
Will Greece reach a voluntary deal with its creditors to write down its debt by 50% in the coming weeks? Will it default? ... or will its official patrons blink, pay up, and let the creditors off the hook? I hear at least two uber-expert Euro-watchers have taken opposite sides of the bet on that one. I bet nobody wins.
This Wall Street Journal article is rather optimistic, and somewhat incoherent on the trade-offs. Apparently private creditors are willing to take a lower interest rate in exchange for a change in governing law from Greek to English (and presumably the ability to sue in London/submission to jurisdiction) in the exit instruments--which makes some sense. But the piece then proceeds to equate English law with available collateral, which comes right out of nowhere. Emerging market sovereigns routinely submit to foreign law, but virtually no one puts up collateral. As a result, all can sue, but none can levy. Just ask Argentina's creditors, who just celebrated the tenth anniversary of the sovereign asset chase under New York, English, and all manner of other foreign laws. But if all it takes is a switch to English law, we have a deal. I doubt it is that simple.
The article is also muddled on the now-notorious business of collective action clauses and their implications for Greek Credit Default Swaps. Although the vast majority of Greece's debt contracts are under Greek law and have no amendment provisions, and although Greece could try to amend these by legislative fiat (risking lawsuits at home and in Europe), the dominant scenario appears to meld contract and legislation: pass a law that allows a super majority of creditors to bind the dissenting minority. The effect of such a law would be to retrofit majority amendment clauses across the Greek debt stock. If the majority binds the minority, the deal goes forward. (The treatment of Greek debt in official hands would be crucial here).
Such a move almost certainly triggers a credit event under Greek CDS contracts: the new terms would be "binding on all" creditors, which is the litmus test under ISDA documentation. Until now, avoiding CDS triggers has been the line in the sand for key official and private players in this drama. Hence the obsession with characterizing the deal as "voluntary." But if coersion is now on the table, why mess around with the inadequate 50% and contract-legislation hybrids? (I suspect the answer is Euro politics.)
As an aside, the article suggests that major banks are lobbying against a credit event--does this mean that they are not hedged? ... that they sold CDS? ... to whom?
One split-the-baby scenario might be to pass the law grafting collective action clauses onto Greek bonds, but then to refrain from using the clauses to coerce creditors into the deal. Plenty of debtors who had collective acion clauses in their contracts did not use them for various reasons; however, the fact that the option was available might have helped creditors make up their minds. I think this route would be too cute to be seriously considered, but you never know.
Mitu Gulati and Jeromin Zettelmeyer have the only sensible take I have seen on the voluntary/involuntary dance: creditors will take a deep haircut voluntarily if they think the alternative is worse. The alternative could be a default, or another restructuring soon, and on nastier terms. Most sovereign restructurings until now have taken place in the shadow of default. In Greece, default was formally taken off the table at the outset for political reasons. But no one can eliminate the possibility of another restructuring--whether that one is voluntary or involuntary need not be decided today. All you need to know is that the next deal would be worse than the deal now on offer. Under the circumstances, the proposition seems like a no-brainer. Can it last?
Signage, signage, everywhere there's signage.
It’s not for the first time, either — and not even the first time for a defense authorization bill. Under fire from civil libertarians on his left, Barack Obama will add a signing statement objecting to the McCain-Levin amendment on the jurisdiction of terror suspects captured in or out of the US. Attorney General Eric [...]
Foreclosure statistics obviously vary from local jurisdiction to jurisdiction, as well as from one time period to the next. For example, sometime back in 2008, New Mexico was 36th in the nation in the number of foreclosures, obviously lower than average. Now it is 11th in the nation. Right now, one in every 452 Santa Fe homes and one in every 550 Albuquerque homes is in foreclosure, and about 15,000 cases are filed each year, about half in Albuquerque. The lack of lawyers reported by the New York Times in February of 2011 is still palpable. Attorney Angelica Anaya-Allen, from the United South Broadway Corporation, which defends foreclosures in New Mexico, did an analysis of the reported decisions in all foreclosure cases in Santa Fe over a two year period. She found that of the 828 reported decisions that favored lenders during the one-year period in which she looked, 600 were default judgments. Ms. Anaya-Allen reports that out of the 15,000 cases filed per year, she’d be surprised if more than 500 borrowers, or roughly 3%, were represented.
Read carefully. Most allonges that get dropped into court files are just dropped in….I’ve yet to see one that is “permanently” attached to the note it purports to endorse. Most allonges are just floating around in the court file….not “permanent” by any stretch of the imagination. I argue that stapling an allonge to the note does not comply with the UCC….but if you ever start looking at these things, pay particular attention to the staple holes between the allonge and the original note. Kinda hard to make the argument that the allonge is permanently affixed when the staple holes don’t even match up.
If the allonge don’t line up, ownership don’t hold up, standing don’t hold up. Standing confers jurisdiction and if no standing, no jurisdiction. A judgment without jurisdiction is void or voidable…..FOREVER.
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Read carefully. Most allonges that get dropped into court files are just dropped in….I’ve yet to see one that is “permanently” attached to the note it purports to endorse. Most allonges are just floating around in the court file….not “permanent” by any stretch of the imagination. I argue that stapling an allonge to the note does not comply with the UCC….but if you ever start looking at these things, pay particular attention to the staple holes between the allonge and the original note. Kinda hard to make the argument that the allonge is permanently affixed when the staple holes don’t even match up.
If the allonge don’t line up, ownership don’t hold up, standing don’t hold up. Standing confers jurisdiction and if no standing, no jurisdiction. A judgment without jurisdiction is void or voidable…..FOREVER.
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The battle lines are drawn, the issues are clear. Florida’s Attorney General asserts that this state’s top attorney has the jurisdiction and authority to investigate the activities and allegations. How dare the Attorney General think she has any authority over the law firms acting in this state! The OUTRAGE! THE INSULT! THE AUDACITY OF THAT ELECTED OFFICIAL! Doesn’t our attorney general know that banks and law firms are above the law?
I cannot wait to hear the arguments in this case, and fortunately we won’t have to wait too long….the date for oral arguments is 2/22/11!
http://www.4dca.org/calendar/2-22-11OA.pdf
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I’m increasingly concerned that the banks and institutions, the Wall Street Fat Cats are too powerful, that they in fact own and control this country, everyone in it and that even our courts….the highest courts in the land…are not above being bullied and intimidated by the forces aligned against our fundamental American values like due process, fairness and liberty.
My latest fear comes in the form of the following disturbing Order released by the court in the case:
For more evidence of my fears, visit 4ClosureFraud for their analysis.
I fear the leadership and those that (theoretically at least) run this county, along with the banks and Wall Street Wizards that are destroying this country (and that really do run this country) are all huddled together and they’re buying into the mantra that WE’VE GOT TO KEEP THIS FORECLOSURE TRAIN MOVING…FULL STEAM AHEAD, DAMN THE TORPEDOES!
The thing that I find most disturbing about all of this is the threats of the institutions to the courts and the arguments that the very courts that are pushing these issues lack the authority or jurisdiction to pursue these institutions. If this position is allowed to develop, then we really are in desperate trouble in this country. Think about it. These banks and multi-national trusts and corporations file foreclosures against real property located within a state, then take the position that because they are banks and multi-national trusts, they are not subject to the laws, jurisdiction and regulations of the states in which they prosecute their claims….
ORWELLIAN, KAFKAESQUE, TOTALITARIAN
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As most of you know, the courts in New Jersey have threatened to suspend foreclosure proceedings in that state. I want to give a big hat tip to 4ClosureFraud for putting together the bank’s responses to the courts questions about the integrity of their procedures. I’m going to give the responses a read all over again tonight then sleep on them, but there are many, many terrifying and troubling things in the combined responses. The thing that bothers me most are the repeated suggestions that the proposed actions exceed the jurisdiction of the court or that they are unconstitutional. This is a terrifying argument…among other scary things in the reports….but read them for yourself and draw your own conclusions….
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WHAT IN GOD’S NAME IS HAPPENING IN THIS COUNTRY? First New Jersey’s Supreme Court Chief Justice slams the foreclosure mills, now go over to 4ClosureFraud and see what the good judges in Ohio are doing.
Meanwhile in Florida, the foreclosure mills have appealed the Florida Attorney’s investigation of them claiming that acts of law firms were not within the Florida Attorney General’s jurisdiction. On another front, the foreclosure mills appealed the application of rules that were established by the Florida Supreme Court. When the appeal didn’t work they just ignored the Florida Supreme Court’s Verified Complaint Rule.
I wonder how this will all play out. Will our courts uphold the rule of law and slam the mills operating across the country or will our courts wimper down in the face of the absurd challenges to their authority that the mills will continue to present?
Are we not a nation of laws?
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I cannot verify the accuracy of this, and given the magnitude of the issue presented, I’m not going to stick my head out to much, but this Order appears to cancel ALL FORECLOSURE SALES IN AT LEAST ONE DIVISION IN ONE OF FLORIDA’S BIGGEST COUNTIES.
Now I know it’s only for a short period of time and it may only be for some sales and not all, but the extraordinary thing about this Order is it shows how one judge is exercising the broad discretion and power within his jurisdiction to address what has got to be hundreds of cases.
Regardless of the scope of this Order or the number of families impacted, it is so significant because it is a powerful, very significant counter balance to the prevailing judicial wisdom that all courts can do is sign foreclosure judgments and set sales. This Order makes it clear that this judge at least believes he can (for whatever reasons led him to sign this Order) stand up for consumers and homeowners and make bold statements about cases in his courtroom.
These kinds of Orders need to get the attention of press, other judges, the lenders and attorneys. We need more Orders and More Judges Like This.
We Need Judges to Stand Up Like This For Floridians, For Our Neighbors, For Our Families!
If someone can figure out this judge’s address, please get it to me then I will ask everyone in this community to send this good judge some Holiday Cards and honest, good Christmas Cheer!
For You Reporters Out There….WHAT A CHRISTMAS STORY…what a dramatic contrast to that depressing old “It’s a Wonderful Life Story!”
Broward+Foreclosure+Sales+Canceled
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The press is starting to pick up on what will be an unavoidable and unresolvable conflict in foreclosure cases….fraud in service of process.
Forget about Jeffrey Stephan and the other “technical” problems with foreclosure files, because when you don’t have good service of process, you don’t have jurisdiction and if you don’t have jurisdiction any judgment is VOID.
This is a massive issue and we’re going to start picking apart the process servers just like we’ve been taking down all the other conning/fraudulent elements that have infected the entire foreclosure process.
Examine all your summonses carefully and let’s all start comparing the alleged “signatures” on summonses…oh and the affidavits of diligent search and inquiries….wonder just how diligent they really were? Were the summons actually served by the licensed process server or were others doing service? (That’s void service.)
How many attempts were actually made by process servers? Who exactly are the “neighbors” that the process servers always seem to talk with but never identify? Exactly how many mobile homes do they try and serve at? How much is over billed for service of process charges (but no one is looking right, and I mean it’s only foreclosure right)?
Are the summons actually real, authentic and issued by the court?
Read the first in what will be many more stories here.
This is an issue that will not go away and cannot just be swept under the rug. There is no statute of limitations on fraud in service of process. (Hello title insurers, just how confident are you in the process servers and your law firms?)
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Now that Florida has a new Attorney General, the question everyone is asking is just how aggressively will she pursue the investigation? I believe she will move even more aggressively than former Attorney General Bill McCollum…I don’t believe she has any choice but to move even more aggressively.
In support of this argument, I invite you all to consider all that we’ve learned just since the investigations were announced just a few short months ago. Think of all the details that have emerged in the national and even international press. Consider the details contained within the deposition transcripts….There really is no turning back.
Attached below is a transcript from a hearing that was recently held in Broward County. Stern’s defenders were arguing (presumably with a straight face) that the Florida Attorney General did not have the authority of jurisdiction to investigate the law firm. The AG’s attorneys and investigators responded by providing details of the hundreds of complaints investigators had been receiving from all across the state.
Read the transcript carefully and consider the case the Florida Attorney General has already built against these firms.
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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
THIS IS BOMBSHELL JOURNALISM PEOPLE. NATIONAL PRESS START FOLLOWING THIS TRAIL OF CRUMBS….BIG STORIES AWAIT.
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I will write much more on this later, for now based on what happened today, I’m busy going through my files to make sure they’re all in order and reviewing my office and court procedures from top to bottom. Attached here is the Motion for Contempt that started all of this:
Later, I will post the judge’s actual order and a transcript of the proceedings. Importantly, the judge in this case has acknowledged what a tremendous drain on taxpayer resources the current foreclosure mill operations represent. She reserved jurisdiction on this case to pursue in direct criminal contempt charges and held open an Order imposing fines of $7,000 per day against the firm for failing to take immediate corrective action.
Perhaps the most important point to take from all of this is that judges are not obliged to simply enter Summary Judgment in every case. There are additional options. Our judges and our courts have powers and steps they can take to insure cases either proceed or are dismissed by the court.
I’m going back to reviewing my files….much more on this later!
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It’s part of motion practice and part of other preparation for an evidentiary hearing. Although it is rare that these matters are set for hearings where witnesses testify and documents are proffered in evidence, they are becoming more common. That’s why I am considering doing the “OBJECTION! Workshop” in August or November which is the companion to the Discovery and Motion Practice Workshop this coming Sunday and Monday. In fact I would like some feedback as to whether there is an appetite for a three-day workshop that includes, Discovery, Motion Practice and Trial Practice.
Repetition bears repeating as Yogi Berra is said to have opined. So far, these cases are won or lost in Motion Practice and Enforcement of Discovery demands. If you have a strong set of Discovery Requests that the Judge cannot disagree with (without risking getting slammed by an appellate court) then you should be able to direct the Court’s anger toward your opposition. Remember their weak point is that a full and truthful response to your Discovery Response would open up a can of worms for them with regulatory authority, the Department of Justice, Law enforcement in each state and civil suits. And it wouldn’t hurt to repeat that a few times when you get your chance at each hearing leading up to an evidentiary hearing or trial.
Remember that each jurisdiction has its own rules regarding limits on discovery, but eh over-riding one that has always exited since before there were written rules, is whether the Judge will see that your request is not meant to be annoying. It is meant to lead to the discovery of admissible evidence. The test of leading to the discovery of admissible evidence is important in that (1) that is why they call it “Discovery” instead of “pre-evidence review” and (2) you can ask broader questions than those which would be allowable in the evidentiary hearing, simply because you are searching for what WOULD be allowed in an evidentiary hearing.
The BIG mistake that many lawyers and especially pro se litigants make is that they think that discovery and motions are the time to win the case on its merits. No such thing exists. Unless the Judge strikes the pleadings of your opposition because he has had enough stalling and delay from them, you are not going to win anything by conducting discovery, filing a motion or responding to a motion.
So why do I say these cases are won or lost at the stage of discovery and Motion Practice? because it is at this point, or on the eve of a true evidential hearing, that the other side collapses IF they think you are going to draw blood in that hearing. Remember that experience shows that they give no hint of collapse until the hearing is underway or about to occur. They are not stupid and. Treating your opponent like an idiot, treating the Judge like a dunce, guarantees you more hurdles to jump than you came in with. Since you are already in an uphill battle, first do no harm, as they say in medicine.
The more specific you are, the easier it will be to explain to the Judge why their objection is nonsense. The less specific you are, the more room you give the other side to dance around you.
The tools of discovery applicable to these actions include the following:
Make certain you have a memorandum ready to explain each request or question or subpoena. The memorandum should address
The report of the ruling below by this Federal Judge has several implications:
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.
* 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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