What did the Attorneys for OneWest Learn at Trial?
By Daniel Edstrom
DTC Systems, Inc.
From the United States Bankruptcy Court Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication). OneWest submitted a motion for relief from stay as a secured creditor. This means they are the one with money at risk and there is security for the collateral (a Deed of Trust securing the debtors home). Attorneys had submitted this information and much more on behalf of OneWest. OneWest used a Brian Burnett to provide a declaration stating under penalty of perjury that OneWest was the real party in interest in connection with the Stay Motion. Mr. Burnett also stated under penalty of perjury that: (a) OneWest received an interest in the Trust Deed pursuant to an assignment attached to the OneWest Declaration; and (b) that OneWest is “holder and in actual physical possession of the original Promissory Note dated July 14, 2007 …”. A copy of the note (unendorsed) was attached to the declaration. This note was identical to the note attached to the Claim (Proof of Claim).
At trial, Charles Boyle, an Assistant Vice President in the Default Risk Management Group, Litigation Department of OneWest, testified, among other things, that the beneficiary of the Loan is Freddie Mac. This testimony was not consistent with the OneWest Declaration (by Mr. Burnett). The court required more information after the trial in order to decide the outcome.
OneWest’s post-trial documents contained factual assertions inconsistent with the OneWest Declaration and claim. OneWest now provided a new copy of the note with an allonge dated July 24, 2007 evidencing a transfer from Original Lender to “IndyMc Bank, FSB” and bore an endorsement in blank from IndyMac Bank FSB.
The judge stated:
The Court was in a position to observe the demeanor of the lawyers handling this matter when the witness stated that OneWest was a mere servicer. The Court concludes based on this observation that they were unaware of this fact and unaware that OneWest supplied questionable documentary evidence.
Other quotes from the judge:
But, the Court also finds that OneWest placed expediency and cost reduction far above its obligation of candor with the Court and, thus, provided the Court with misinformation during the course of this proceeding.
Apparently, however, Freddie Mac ceded the decision making power to OneWest, an entity which was unaware that it was receiving the Cure Payment and an entity with procedures in such disarray that it appears possible that it denied the HAMP modification based on the erroneous belief that it never received any documents in connection therewith.
The Court is left to shake its head in amazement.
At the trial on this matter, the Court heard testimony that was frankly astonishing.
Further, this is not the first time that OneWest has provided less than complete information in the Southern District of California. See “Memorandum Decision Re Motion to Vacate Clerk’s Entry of Default and Motion to Dismiss Complaint; Order to Show Cause for Contempt of Court”, docket no. 39, Adv. Pro. 10-90308-MM (In re Doble; Bk. Case No. 10-11296) (Defendants, including OneWest, were neither candid nor credible in explaining failure to respond timely to complaint and submitted multiple and different notes as “true and correct”); “Order to Show Cause Why OneWest Bank, FSB and Its Attorneys Law Offices of Randall Miller and Christopher Hoo Should Not Appear Before the Court to Explain Why They Should Not Be Held in Contempt or Sanctioned”, docket no. 47, In re Carter, Bk. Case No. 10-10257-MM13 (among other things OneWest provides inconsistent evidence as to its servicer status); and “Order After Hearing to Show Cause Why Indymac Mortgage Services; OneWest Bank, FSB; Randall S. Miller & Associates, P.C.; Christopher J. Hoo; Barrett Daffin Frappier Treder & Weiss, LLP; and Darlene C. Vigil Should Not Appear Before the Court to Explain Why They Should Not Be Held in Contempt or Sanctioned”, docket no. 47, In re Telebrico, Bk. No. 10-07643-LA13 (Court concerned that OneWest provided evidence that was either intentionally or recklessly false).
And finally, to give credit where credit is due, here is what the judge stated about the two attorneys working for OneWest in this particular case:
Note 11: At this point in time, the best thing OneWest has going for it is the character and integrity of the two attorneys who handled this matter in the courtroom. They did so with compassion, they so with skill, and they did so with all the candor they were capable of given the fact that they work for this entity. They are certainly free to defend OneWest in the next phase of this action.
did you guys know who killed SB1259? http://mandelman.ml-implode.com/2011/05/kill-bill-arizona-mortgage-lender%E2%80%99s-association-takes-credit-for-killing-sb-1259/
One West, Indy Mac and Deutsche Bank all cheater, lier and fraud on the earth.
I’m a homeowner doing battle with these crooks right now. I had a heart attack, and missed my 1st house payment the following month. I asked for HELP, but instead of getting help – the “loan asset” on my home was transferred from IndyMac to OneWest to Deutsche Bank. DB pressed forward to have a trustee’s sale – while hiding their alleged ownership interest in the loan asset for months. Then they claimed they “bought” the property at the trustee’s sale, and therefore were “bona-fide purchasers;” they also claimed that any NOTICE requirements per California Civil Code Section 2923.5 did not apply to them, they should not be held accountable for any errors in amounts published on the N.O.D. & N.O.T.S. because these were not their fault because they weren’t the ones who did them (they were merely a “Holder in Due Course”) – and so on and so forth… All of the recorded documents are ROBO-SIGNED and contain falsified statements declared under penalty of perjury. These guys actually WANTED to take our property – so that they can submit more falsified documents to the FEDS, claiming the property’s loan was a federally insured loan. By doing that, instead of having losses like they usually do on REO property, they’ll get a windfall. The hardest thing to stomach is that opposing these guys – with three teams of high-priced lawyers – is extremely burdensome, very costly and just about the hardest thing you could ask from a guy recovering from recent major open heart surgery. Talk about shameless! These people who have the term TRUST in their formal name, demand TRUST in the very foundation of how they do business with the public – have no TRUST to give… Does anyone out there have any good “counter-measure” ideas for handling this kind of thing?
I really felt sad that One West Bank seems very helpful listening to my story that I fall behind on my payments due to my disability went further than expected and causing my worker’s compensation coverage to stop. They then advised me to be careful of acquiring outside help that may end up ripping me off for more money. I made arrangement to to modify my loan but was denied. They had a modification before I was disabled approved through HAMP. Since I was approved then so I am not approved now regardless of my disability. They told me to short-sale the house or face foreclosure. Since my income was depleted because of disability, I service retire pending medical retirement so I will have enough income to start paying my regular payments. I made arrangement to continue paying my mortgage plus more if I get extra income through selling life insurance. They denied me by offering their own terms of which I have to put down $10,000 and a monthly payment plus about $1000 more for 6 months. I was wowed for not being to afford that. Then they came out of a monthly payment plus $2,000 dollars more for 6 months. Now we are on this boat waiting for would be the best to do. Well I went on reading through the internet about all this fraud things and their real intentions. I felt so bad that after all their intention is for me to go more on default so they could foreclose in hurry so they can get their sweetheart deal with FDIC. Well folks, I will fight them to death and stop paying them so I can get good representation for their fraud and scams. All this ROBO-Signatures and no proof of ownership, shoot! I just make me mad. Anyway my total mortgage balance is around 820,000 and the appraised value of the house is around $435,000 to $475,000. This whole neighborhood are now learning and almost everyone will be going in default because this assholes are wanting us to get modification harder and short-sale harder so we end up in foreclosure. They want their huge profit from the foreclosure because of their guarantees with FDIC of which is our money, the tax payer’s money.