- TILA Rescission Success Without Tender – HENRY BOTELHO, Plaintiff, v. U.S. BANK, N.A., as Trustee for the LXS 2007-4N Trust, Defendant
- Full Deposition of Angela Nolan Robo Signer at Chase Home Finance – Foreclosure Fraud on Record – DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR JPMAC 2007-CH5 – J.P. MORGAN CHASE BANK NATIONAL ASSOCIATION, Plaintiff, VERSUS ROBERT H. OBRIEN CASE NO. 50 2008 CA 018964XXXX MB
- Deutsche Bank National Trust Company, As Trustee for FFMLT 2006-FF13, Plaintiff, v. Terry A. McRae a/k/a Terry McRae, et. al., Defendants.
Jan
19
FL 3rd DCA Bank of New York Trust v Rodgers | Ex Parte Motions to Substitute Party Plaintiff
“This was a foreclosure case that advanced to trial. The presiding judge thought the bank presented insufficient evidence at trial to prevail. But two appellate judges disagreed based on an Order substituting plaintiff that was entered ex parte, without notice, and without hearing. Hence, according to these two judges, evidence to justify foreclosure is never … Read more
Related posts:
Jun
06
US TRUSTEE Louisiana sanctions motion memo v LPS
GET LOAN SPECIFIC RECORDS PROPERTY SEARCH AND SECURITIZATION SUMMARY
Editor’s Note: Every time a lawyer, Judge, US Bankruptcy Trustee stops to actually look at the paperwork, the result is the same. The game is your would-be forecloser to get the Judge to avoid scrutinizing the documents. It works in most cases because either the debtor does nothing or his lawyer, not up to speed on securitization, doesn’t quite no what to say.
YOUR JOB: GET THE LAWYER, US BANKRUPTCY TRUSTEE OR OTHER JUDGE ON THE SAME PAGE: Set a reasonable goal. Your goal is to get everyone to follow the rules of evidence. Your goal is to get everyone to scrutinize those documents.
The game is that the pretender lender presents documentation that appears to be valid on its face. They figure first of all that you or your lawyer are going to give up right there so the Judge will never rule on it because he hasn’t been asked to do so. Their ace in the hole is the perception and belief of the presiding Judge that the debtor must be in default either because the debtor already admits it directly or indirectly or just because “why else would a financial institution foreclose?”
In every case where the homeowner has succeeded in getting the Judge to allow testing of the veracity of the pretender lender’s representations, the homeowner has won or settled on very favorable terms. No case has ever actually gone to trial that has been reported to me.
The moral of the story is as I have said for three years now, assume nothing, accept nothing at face value, make them attempt to prove every element of what they are proffering to the court. They can’t do it.
Louisiana sanctions motion memo
MEMORANDUM OF LAW IN SUPPORT OF UNITED STATES TRUSTEE’S
MOTION FOR SANCTIONS AGAINST LENDER PROCESSING SERVICES, INC. AND
THE BOLES LAW FIRM
Filed under: foreclosure
Apr
03
California Judges Bail Out on Court Hearings
We wish this story was an April Fool’s joke, but sadly it is not. Several borrowers who have filed challenges to nonjudicial foreclosures in Northern California and sought a Temporary Restraining Order to cancel a Trustee’s Sale were denied such relief by a “clerk” or “law clerk” who “appeared” at the hearing in lieu of the presiding Judge, who never even appeared in court. The “clerks”, obviously not attuned to foreclosure defense litigation and not understanding the legal arguments being made, simply denied the TRO requests without even the issuance of an Order (as Clerks cannot sign court orders), so the borrower has no Order to take to an appeals court! The borrowers were left with having to file Bankruptcy and thus litigate their issues in the Bankruptcy Court.
Which is not necessarily a bad thing. Many of the decisions which support borrower’s concerns such as legal standing, real party in interest, and chain of title defenses have emanated from the Bankruptcy Courts, including two decisions from the Bankruptcy Court for the District of Idaho and one from the Bankruptcy Court for the District of Nevada (which we previously discussed on this website which said NO to MERS on multiple fronts).
As such, expect more and more filings in Bankruptcy Court, and more and more adversary proceedings inside of the borrower bankruptcies challenging the foreclosure attempts.
Jeff Barnes, Esq.,
Filed under: foreclosure
Feb
01
Important Florida Case – one way to get a foreclosure dismissed
There is a recent decision out of the Sixth Judicial Circuit in FL (Pinellas County) that I believe warrants focus and analysis for homeowners and their attorneys. In Wachovia Mortgage v. Matacchiero, the Defendant filed a Motion to Dismiss (MTD) the case through her attorney. The basic premise of the MTD was that the Plaintiff lacked the “capacity to sue” the Defendant for foreclosure under Fla. Civ. Pro., Rule 1.120(a).
Most foreclosure attorneys are used to hearing (and arguing) the legal issue of “standing” and while standing is a very valid issue that should be questioned in every foreclosure case, the “capacity to sue” is different. ‘Capacity to sue’ is an absence or legal disability which would deprive a party of the right to come into court.” Judge Rondolino, the presiding judge who signed the order granting the Defendant’s MTD, made the distinction right in his order.
In this case, the Plaintiff was, “Wachovia Mortgage FSB, F/K/A World Savings Bank.” The argument was simply that the Plaintiff failed to properly identify itself in the pleadings (complaint) and therefore the Defendant was deprived of knowing exactly who to answer or frame her responsive pleading to.
The Defendant’s argument: “Because the Plaintiff failed to “plead or specify in what capacity the Plaintiff brings suit and by failing to define or identify in any way the nature of its legal entity the Plaintiff has not plead that it has the capacity to maintain suit before this court.”
Notice point 4 of the Judge’s order where he specifically compares capacity to standing and note the differences.
The attorney in this case did a great job really analyzing the Defendant’s case and he obviously has a firm grasp on and working knowledge of the rules of civil procedure. He successfully attacked the legal deficiencies in this case and won on the merits of his well plead argument.
The majority of foreclosure cases are fraught with legal deficiencies. The problem I see is that few are truly analyzing the complaint, pleadings and allegations made by these institutional fraudsters to find these deficiencies and use them against the Plaintiffs. You know the old saying, “the devil is in the details.”
Hopefully, you’ll read the judge’s order and dive into the rules of civil procedure in your state and really learn something as to how “we should think” about foreclosure cases. The lesson here is to learn how to “frame” our thinking regarding foreclosure cases and to learn to look at the details. Look at what these Plaintiffs are truly alleging. The words they are using are not accidental and often we will find conflicting statements, inconsistencies and the like.
Use the rules of civil procedure as the guide and attack the missteps of these institutions. The rules define how the game is played. If a party fails to follow the rules they have a problem and if you have a rogue judge who doesn’t care about ensuring the rules are followed, these things need to be identifed, recorded and quantified so that you can set a case up for an appeal. The Appellate courts are in a position where they have to hold the parties (and judges) to following the well-established rules of civil procedure.
Now, what you are waiting for? If you need legal representation in a foreclosure matter (or even think you might), call Houk Law today to speak with us about all the reasons why you should consider retaining us to represent you… and why it makes complete economic sense as well!
We can be reached at 1-877-508-4848 ext. 0
