- I-Team: Nevada Supreme Court Case Could Impact Homeowners
- Nevada Supreme Court Orders Wells Fargo, First American Loanstar, MERS be Sanctioned for NOT Following Foreclosure Mediation Laws
- Foreclosure Fight | David J. Stern vs CitiMortgage – Bank Accuses Foreclosure Mill of Negligence, Says it won’t Pay for Previous Work
Jan
25
PIAZZA vs CITIMORTGAGE | Nevada Supreme Court – Lenders Must Have Foreclosure Papers to Foreclose
Nevada court: Lenders must have foreclosure papers (AP) LAS VEGAS — A pair of Nevada Supreme Court rulings requiring mortgage lenders to produce all required foreclosure documents before repossessing a house won’t establish a new legal standard because they rely on state high court opinions issued last July, a court official and a lawyer involved … Read more
Related posts:
Oct
24
Down twinkles: OWS at risk of fracturing over … drumming?
"Friends, mediation with the drummers has been called off."
Via Moe Lane. I held off on linking this for an hour because no one on Twitter, including me, could tell if it’s a genuine message or a goof. I still can’t be sure but I think it’s the real deal for a few reasons. One: There are, in fact, tensions within the movement over [...]
Jun
15
Civil Beat Reporter in Hawaii Interviews Mandelman on Fannie Mae Decision to Foreclose Judicially
Civil Beat’s Robert Brown interviews Sen. Baker, Rep. Herkes, FACE’s Kim Harmon… AND ME!
Fannie Mae Skirts Landmark Hawaii Foreclosure Law
6/15/2011
Mortgage giant Fannie Mae has found a way around what some consider the nation’s strongest foreclosure law.
Fannie, a government controlled mortgage finance company, which operates in the secondary mortgage market, announced this week the company will convert all of its new and pending non-judicial foreclosures in Hawaii to judicial foreclosures effective immediately — essentially allowing them to skirt Hawaii’s new law.
“Our announcement is consistent with Hawaii law and was made in response to recent Hawaii legislation,” Andrew Wilson, a Fannie spokesman told Civil Beat in an email. “The judicial foreclosure process allows homeowners to raise any challenges to the foreclosure in court. Fannie continues to encourage homeowners to reach out as early as possible to their servicers to pursue modifications and other foreclosure prevention solutions.”
In May, Gov. Neil Abercrombie signed Act 48, a measure requiring lenders to meet face-to-face with homeowners for mediation before foreclosing on a property. Additionally, the bill places a moratorium on all new non-judicial foreclosure actions until July 1, 2012, for foreclosures covered under Part 1 of the state statute governing foreclosures, and requires lenders to prove they actually have the authority to foreclose on a property.
“It doesn’t seem like (Fannie) really cares much about our homeowners or assisting homeowners stay in their homes,” Sen. Rosalyn Baker, who co-introduced the mortgage bill, said in an email.
Intended to reform Hawaii’s foreclosure process, Act 48 has the potential to impact thousands. But the law only applies to non-judicial foreclosures.
Fannie Change Skirts Proof Requirement
One reason supporters of Act 48 were so pleased with its passing was the requirement that lenders prove they have authority to foreclose on a home.
Kim Harman, policy director for Faith Action for Community Equity (FACE), told Civil Beat in May that lenders processed too many mortgages too quickly, resulting in Hawaii residents being foreclosed on by lenders who don’t have legal standing.
Act 48 was based on a 2009 Nevada law, with the exception of the proof of authority to foreclose requirement. Because Fannie hasn’t adopted the same stance in Nevada, Harmon says, it indicates that Fannie is attempting to avoid having to prove that it has the right to foreclose.
“There are thousands more foreclosures in Nevada than in Hawaii and our foreclosure mediation laws are so similar, Fannie Mae must be reacting to Hawaii’s higher standard for lenders and mortgage servicers to prove their legal standing to pursue foreclosures in our state,” Harmon said in a FACE press release. “If Fannie Mae is worried that there are flaws in their legal standing to foreclosure, they should not be foreclosing at all, they should be addressing problems with their mortgages.”
Baker said Fannie will be disappointed if it is, in fact, trying to avoid the proof requirement.
“If Fannie Mae thinks somehow they’re going to get a better deal going through the courts and that they won’t have to present the same documentation demonstrating their legal ability to foreclose, I believe they will be sadly mistaken,” Baker wrote Civil Beat via email. “I expect the courts to look with great scrutiny on any foreclosure matter that comes before them, especially now.
Wilson, the Fannie spokesman, declined to comment on the issue.
Baker told Civil Beat Fannie’s decision will likely lengthen the foreclosure process and possibly pass on more costs to homeowners, who might feel the need to be represented by counsel. She said lawmakers will keep a close eye on Fannie and will work with the Department of Commerce and Consumer Affairs, as well as the judiciary, “to explore options and how best to keep from overwhelming the resources of the Judiciary.”
Baker said getting a judicial foreclosure hearing in Hawaii can take 12-14 months.
“We intend to continue to stand up for the beleaguered homeowners of Hawaii,” Baker said. “We will also enlist the assistance and support of our Congressional delegation.”
Mortgage Expert: Expect Protests
While Fannie isn’t doing anything illegal with the conversions, at least one mortgage expert thinks Hawaii homeowners will not tolerate the decision.
“In Hawaii, this is not going to fly,” Martin Andelman, operator of the mortgage blog “Mandelman Matters”, told Civil Beat. “If you treated your spouse the way the servicers treat people, you’d get arrested. It’s abuse. It’s awful. We treat people in the criminal justice system better than servicers treat homeowners.”
“I just know Hawaii,” Andelman said. “Hawaii is not a place where you get away with that stuff. I mean, mainland banks are going to treat people rudely and think everyone is just going to do nothing?”
Andelman said that Fannie’s move essentially renders the intent of Act 48 moot, though Baker disagrees.
“The people of Hawaii today are very proud of their Legislature for (Act 48),” Andleman said. “It was a grassroots movement, they felt like they had a real success on a national scale. I mean it was a big deal. They won and they did something good. And then Fannie just went, ‘(expletive) you.’”
READ THE REST HERE… (It’s worth reading… Rep. Herkes is quoted as saying: “Oh my. Now we have to prove we’re the lender. How rude.”
DISCUSSION: What do you think of Fannie Mae’s decision to convert its foreclosures? Share your thoughts in Civil Beat’s Hawaii Politics discussion.
~~~
I don’t usually post what appears in other publications, but I thought my readers would enjoy this. I’m headed to Hawaii next week to meet with Rep. Herkes, Sen. Baker and Kim Harman of FACE… along with many others involved in the battle.
I’m determined to help make a difference here, because if we can show the country an effective program to mitigate foreclosures, I think others will follow.
Wish me luck… pray for us all.
Mandelman out.
Apr
27
SHOCKED! APPALLED! BEFUDDLED! FORECLOSURE MEDIATIONS ARE A DISMAL FAILURE!
So now the press is reporting what we’ve all known since foreclosure mediations began….they’re a dismal failure. Could it be because mediation requires that BOTH parties participate in good faith? Could it be because the banks do not want to settle? Could it be because the banks don’t know who owns the loans and so they cannot settle?
It’s all those reasons and more….so now what?
Tweet this!
Share and Enjoy:
Scridb filter
Sep
16
Foreclosures Surge in St. Petersburg/Tampa Area
New foreclosure filings in the Tampa Bay area surged in the month of August. Foreclosure filings – default notices, scheduled auctions and bank repossessions – were up 26 percent from last year and 22 percent from the previous month, according to Calif.-based RealtyTrac.
At the same time, lenders are setting more foreclosure sales and taking more aggressive actions to set foreclosure sales. See article in today’s St. Petersburg Times.
The abuses that normal Americans are facing in the court system and the unfair settlements they’re receiving through mediation require that homeowners retain competent counsel to assist with their foreclosure defense.
Tweet this!
Share and Enjoy:
Scridb filter
Jul
29
Mass Extinction of Pools Becomes Clearer
Our good friend “Anonymous” has piped up with more vital information and expressed it more succinctly than I did.
“The senior tranches have largely already been paid and closed. Since the junior tranches are paid only if there is left over current payment – after the senior tranches have been paid. Thus, junior tranches are paid nothing (this is evident in investor lawsuits – damages do not deduct foreclosure recovery). If anything remains today from the toxic mortgage loan securitizations, it is the residual tranche – which has likely been resecuritized into a separate Trust – that is not a current pass-through security – but, rather, synthetically derived from a dismantled original Trust structure. “
Editor’s Note: In other words, if you have a high quality loan wherein you have a high credit score and received relatively good terms, it was in the “senior tranches.” The senior tranches were paid and closed. They were paid from the meager proceeds of the junior tranches, from insurance, credit default swaps etc. Bottom Line: If you got one of those mortgages, it has almost certainly been paid in full. So why are they still collecting your payments? Because they can.
Your obligation has most likely been satisfied long ago without any rights of subrogation. If you are in foreclosure now with one of these loans, the “Trustee” is in actuality out of the picture because the “Trust” was closed out (IF IT EVER LEGALLY EXISTED). All of this leads to the politically incorrect conclusion that people gt their houses for “nothing.” But that is not true.
ALL THE MONEY THAT WAS OWED ON THAT LOAN HAS BEEN PAID. WHY SHOULD ANYONE COLLECT ANYTHING FURTHER?
More comments from “Anonymous”
This is a very important post. I have been aware of cases where the defendant is sent to mediation without first identifying the real creditor. Some here have stated that the real party issue is not relevant because eventually the plaintiff will get his “ducks in a row” and proceed with the foreclosure under the real party name.
Not identifying the real party in court is not only fraud but also deprives the defendant of direct and timely negotiation with the real party true creditor. Thus, damages accrue to the defendant.
Although real party, in my opinion, is the single most important issue, I am not seeing courts enforce discovery to ascertain the real party. Once it can be established that the real party is not before the court, all the produced documents are also subject to question. I have seen cases where the real party is at issue – but most of the cases simply state that the plaintiff does not have standing – without attempting to demonstrate why the plaintiff is not the real party.
Since foreclosure cases most often are indicative of securitization, knowing the chain of sale/assignment in a securitization is crucial. Also, knowing what the “investors” are entitled to is important. Again, while I think this post is very important – i disagree with “there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded” 1) any investors who indirectly funded a “pool” – did not directly fund mortgages and 2) tranche “investors” – for which there a limited number of tranches – were only entitled to current income pass-through – not foreclosure recovery (which is not current and not passed on to pass-through security investors. (However, the residual tranche is not a pass-through – and is usually held by the servicer – who may -or may not be the current creditor). 3) the Trust is likely dissolved.
The fact that mediation is being conducted without identification of the current creditor – in whose name any modification must be contracted – is simply additional fraud upon the borrower defendant. This fraud is akin to “loan modification” scams that are being currently investigated by some state Department of Justices.
How and why the courts are allowing this to happen – and actually promoting it – is beyond me.
Editor’s Note: Legally this puts us at the horns of a dilemma. If we want to travel the path of “PAID IN FULL” then we are treading on the thin ice of accepting or admitting that the loan was actually legally and correctly assigned and indorsed into the pool, in addition to the usual “free house” talk. If we travel the path of UNSUCCESSFUL ATTEMPTED ASSIGNMENT then we get to the conclusion that the loan is still owned by the originating lender, who was PAID IN FULL at the time of the loan closing, but still is the owner of record. If we travel both paths, we are presenting a highly complex argument that most judges won’t understand. This is why the winners out there are not making big splashes with exotic legal arguments (even though they would be right), the winners are getting down to the details that any Judge would understand — SHOW ME THE TRUST DOCUMENT, SHOW ME THE NOTE, SHOW ME THE ASSIGNMENT, SHOW ME THE INDORSEMENT, SHOW ME THE ACCOUNTING, SHOW ME THE CREDITOR ETC.
MANY THANKS, ANONYMOUS!!!
Filed under: bubble, CDO, CORRUPTION, Eviction, evidence, expert witness, foreclosure mill, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, securities fraud, Servicer, STATUTES, trustee Tagged: creditor, fraud, mediation, REAL PARTY IN INTEREST
Jul
29
No Mediation Without True Lender
EDITOR’S NOTE: It wasn’t so long ago that I had to practically pulled teeth to get her attorneys to agree with the proposition that nearly all of the foreclosures were fake. Matt Wiedner seems to have his finger on the pulse of what is really happening. I think the most important feature of this article is that mediation is a farce unless the real parties in interest are in the room. It’s really the same issue as we encounter in litigation: STANDING. The fact remains that the great mortgage sting leading to the great recession is still very much in progress. It starts with the servicing companies along with other intermediaries that have no financial interest in either the loan or any mortgage bond purporting to claim ownership of the loan. They have a vested interest in making certain that the home goes all the way through the process of foreclosure because for them that is where the money is. By the time they are done with the foreclosure process they have imposed so many fees, costs and surcharges that there is nothing left to pay the investors who advanced money into a pool from which some mortgages were funded.
When these intermediaries intervene in the process of foreclosure, modification, short sale, or mediation they are merely creating the appearance of good faith when in fact they have no business being involved at all. They continue to waste the time of everyone involved in the process. They are successful in creating the illusion that they are the right people to conduct negotiations or litigation. In fact, their only interest lies in obstructing the process long enough to impose fees that eliminate any value of the loan and eliminate any possibility of a conclusion in which the homeowner is able to achieve a reasonable settlement with the real lender.
Investors, borrowers, and attorneys should aggressively act to enforce the obligation of the party alleging that it is the lender to prove that it is in fact the lender. You can start with a simple question to the company that services the mortgage. To whom have you been paying the borrower’s monthly loan payments? Then ask for proof. Chances are they will do almost anything to avoid answering that question. It is is a simple question. I think that there are many judges that would find it difficult to understand why any “lender” or servicing entity objected to answering that question. It goes to the heart of jurisdiction and to the heart of the illusion which thus far has been successfully created in the minds of most judges and many lawyers.
Matt Weidner Blog
Today, July 28, 2010, 2 hours ago
Fight The Mortgage Servicers Who Bring These Foreclosure Actions
Today, July 28, 2010, 2 hours ago | Matthew D. Weidner, Esq.
The vast majority of foreclosure cases are brought not by the real
parties that have any interest in the outcome of the litigation, but
by nominal, shell Plaintiffs that have been propped up by the
investors or the real parties in interest to pursue the litigation.
Because the vast majority of foreclosures go undefended, this
important point is missed in the vast majority of cases. While it may
be missed in cases, the consequences of this phenomena are profound
and broad reaching.
The failure to identify what parties are really at risk in litigation
prevents courts, policy makers, investors and the general public from
knowing who stands to win or lose in litigation. Concealing the
identity of the real party in interest allows those who made bad
decisions to shirk their responsibility in the litigation, a fact that
is more important when their conduct could very well make them
complicit in creating the situation that led to the litigation. On a
very practical level, litigation pursued by servicers probably
prohibits effective settlement or mediation discussions because they
lack the risk of loss that forces effective resolutions. The
consequences of this are played out hundreds of thousands of times a
day as homeowners try futilely to negotiate a short sale or
modification with the lender. This is especially important now that
circuits across the state are rolling out mediation programs.
FORECLOSURE MEDIATION IS NOT GOING TO WORK UNLESS THE REAL PARTIES IN
INTEREST ARE IN THE COURTROOM
The fact that mediations are not going to work until we have real
players at the table will be borne out in the months to come.
Certainly borrowers will share some of the blame for not actively
participating in the mediation and settlement discussions, but at the
end of the day, another bank owned property is a loss for all parties
involved….there are too many of these properties already.
The key to addressing this problem is to first attack the Plaintiff’s
capacity. The first part of the attack is the fact that most
Plaintiffs are never properly identified in the lawsuit. Courts must
begin to demand knowing just exactly where this company comes from
that is bringing this action. Courts must begin to ask, “Who am I
about to grant this $250,000 judgment to?” then not let the case
proceed until they have a very clear answer to that question.
Our State Division of Corporations or Department of Financial Services
must begin to demand registration of all these nominal and real
plaintiffs. Specific laws are already on the books that demand
registration of foreign corporations and of all trusts, but these
registration requirements are being totally ignored.
OUR STATE IS IGNORING MILLIONS OF DOLLARS IN TAX REVENUE AND FAILING
TO PROVIDE APPROPRIATE REGULATORY OVERSIGHT BY IGNORING THESE LAWS.
Once the nominal plaintiff is properly identified, it’s time to demand
proof that they have the authority to maintain the litigation on
behalf of the real party in interest. This too is addressed by the
capacity argument, but you must also be thinking about this in the
context of preparing discovery, because the proof demanded will come
in the form of the Plaintiffs responses to the discovery requests.
I have previously attached my capacity Motion to Dismiss and I can
tell you that when the facts support this Motion, it is nearly
impossible for the Plaintiffs to wiggle their way around. Even the
most bank-friendly judge will have problems denying this Motion and if
the motion is denied, it sets up a very significant summary judgment
or appeal issue. I’m going to work on this motion again to put some
more recent circuit court cases into it, but as I’ve stated before…
CAPACITY IS A CASE KILLER!
Keep up the good fight!
–
Jake Naumer Union Capital
Licensed Financial Advisor
3187 Morgan Ford
St Louis Missouri 63116
314 961 7600
Fax Voice Mail 314 754 9086
Filed under: foreclosure
Jun
03
In States Requiring Mediation
More and more states are following the example set by the federal government in requiring mediation or modification attempts before going forward with litigation. We think that is a good idea in theory, but without the teeth that is in the enabling rules and statutes in Florida, you are just going to end up playing the same game of “who’s my lender.?”
Even in Florida, as in all cases, YOU must bring up the the issue of the authroity of the person being offered as a decision-maker.” 99 times out of a hundred they are not. The most they have is some authority from a dubious source to agree to some minor adjustments, like adding the payments to the back end of the mortgage.
Make no mistake about it — there is no decision-maker unless they have full power over that mortgage. That means they could if they want to, reduce the principal. They will argue that nobody has that power because the securitization documetns prohibit it. That is their little way of getting your eye off the ball.
Of course the securitization documents don’t allow certain things to be done to the mortgage. Those documents are aimed at restricting the actions of the agents of the principal (i.e. the creditor/lender).
It is ONLY an authorized representative of the investors who DO have the final say over any settlement that is needed in that mediation room and proof of that authority, which means notice to the investors, which means disclosing that notice to the investors and proof that a sufficient number of investors under the documents have approved the grant of decision-making authority to modify, amend, alter or change the obligation, note and/or mortgage.
Unless the person offered for the mediation has the authority to sign a satisfaction of mortgage on whatever terms he/she sees fit, they are not the decision-maker. If the other side refuses to comply move for contempt, sanctions and to strike their pleadings with prejudice.
If the other side fights this and they probably will, you should probably argue that this is a flat out admission that the principal (i.e., real party in interest, creditor, lender) is not represented in the proceedings because the other party in your litigation refuses to disclose them contrary to the requirements of federal law, state law and the rules of civil procedure.
If they can’t produce this authority then they also lack authority to foreclose. It might even be an admission that they are seeking to steal the house, put in their own entity and keep the proceeds of sale contrary to the interests of the investor who is entitled to be paid and contrary to the borrower who is entitled to a credit against the obligation that is due.
Filed under: CASES, CORRUPTION, Eviction, expert witness, foreclosure, foreclosure mill, foreign relations, Forensic Analysis Workshop, GTC | Honor, HERS, investment banking, Investor, MODIFICATION, Mortgage, Motion Practice and Discovery, securities fraud, Securitization Survey, Servicer, trustee, workshop Tagged: authority, decision-maker, Florida Modification, investors, mediation, modification, Mortgage, note, Obligation
Mar
12
MERS Admits NO Interest in Mortgage and No Loss On Default
see MERS INSTRUCTIONS TO TRANSFER RIGHTS OPTION 1
MERS INSTRUCTIONS TO TRANSFER RIGHTS OPTION 2
PRECLOSING REG SHOWS PRE-KNOWLEDGE OF SECURITIZATION
Arnold admitted MERS does not have a beneficial interest in any mortgage; does not loan money; does not suffer a default if monies are not paid; etc...the internal agreement used by MERS expressly disavows any beneficial interest.
By Mark Mausert, Nevada mark@markmausertlaw.com
On September 25, 2009, R.K. Arnold, the President and CEO of MERSCORP, Inc. — the parent corporation of Mortgage Electronic Registration Systems, Inc. was deposed in Alabama. Arnold is also an Officer of MERS. Arnold admitted MERS does not have a beneficial interest in any mortgage; does not loan money; does not suffer a default if monies are not paid; etc. etc. On November 11, 2009, William C. Hultman was deposed in Alabama and made the same admissions. And, of course, the internal agreement used by MERS expressly disavows any beneficial interest.
One tactic, if confronted with a foreclosure in Nevada, is to elect mediation. At the mediation, demand the assignments, i.e., the assignments which would cure the problem (according to Judge Riegle’s March 31, 2009, opinion, as affirmed by Judge Dawson on December 4, 2009). MERS and/or the lender has been unable to produce any such assignments — because they almost certainly do not exist.
Request the Mediator to check the appropriate box, i.e., the box which memorializes a failure by the lender to produce all required documents (all assignments must be produced per AB 149 — incorporated into Chapter 107 of the Nevada Revised Statutes). The requisite Certificate will not issue as a result. The Notice of Default is effectively negated. The “lender” must thereupon issue a new Notice and the borrower is again at liberty to elect mediation within 30 days of receipt thereof. The borrower should pay his or her taxes, and insurance, but not the mortgage — especially if upside down. It is an effective stopgap measure.
If the courts continue to follow the reasoning of Judge Riegle and Dawson a borrowr may, if otherwise eligible, declare bankruptcy; bring an adversary proceeding within the bankruptcy; and discharge the “mortgage” debt (which re a MERS mortgage is not really a mortgage but rather an unsecured debt — per Judge Riegle).
Or the borrower may initiate litigation based on causes of action for breach of contract, fraud by omission and racketeering (Chapter 207 of the Nevada Revised Statutes). By conducting systemic predatory lending, and coupling predatory lending with credit default swaps, i.e., bets homes would be foreclosed upon, the lenders breached the implied duty of good faith and fair dealing — the duty to refrain from frustrating the purpose of the contract. Borrowers generally harbored two main purposes — to secure a place to live and to safeguard/create an investment. By engaging in systemic predatory lending the banks frustrated the second purpose. They devalued the collaterized asset and breached the lending contract. Because this information was not disclosed, fraud by omission occurred. A series of fraudulent act constitutes racketeering, which gives rise to a claim for treble damages, plus fees and costs. Those are the theories.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor, Mortgage, securities fraud Tagged: Alabama, bankruptcy, beneficiary, Chapter 107, Dawson, Judge Riegele, Judge Riegle, Mark Mausert, mediation, MERS, MERSCORP, Nevada, Nevada revised Statutes, Notice of Default, R.K. Arnold, RICO
