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Lawyers Take Note: Wells Fargo Slammed with $3.1 Million Punitive Damages on One Wrongful Foreclosure

Lawyers Take Note: Wells Fargo Slammed with $3.1 Million Punitive Damages on One Wrongful Foreclosure

By Daniel Edstrom
DTC Systems, Inc.

Posted by Neil F. Garfield on livinglies.wordpress.com (http://livinglies.wordpress.com/2012/04/12/lawyers-take-note-wells-fargo-slammed-with-3-1-million-punitive-damages-on-one-wrongful-foreclosure/).

GARFIELD PROPOSES NATIONAL LAW FIRM FOR COUNTER-ATTACK
Editor’s Comment:

The most perplexing part of this mortgage mess has been the unwillingness of the legal community to take on the Banks. Besides the intimidation factor the primary source of resistance has been the lack of confidence that any money could be made, ESPECIALLY on contingency. If you were the lawyer in the case reported below, you would be getting a check for fees alone of over $1.2 million on a single case. And as this article and hundreds of others have reported, based upon objective surveys, most of the 5 million homes lost since 2007 were wrongful foreclosures.

So the inventory for lawyers is 5 million homes plus the next 5 million everyone is expecting. Let’s due some simple arithmetic: if 4 million homes were wrongfully foreclosed and the punitive damages were $1 million per house the total take would be $4 Billion with contingency fees at $1.6 Billion. If each house carried $200,000 in compensatory damages, then the total would be increased by $800 Million with Lawyers taking home $320 Million. These figures exceed personal injury and malpractice awards. Why is the legal profession ignoring this opportunity to do something right and make a fortune at the same time?

Right now I’m a little under the weather (open heart surgery) but that hasn’t stopped my associates from rolling out a plan for a national anti-foreclosure firm. I’m only doing this because nobody else will. If you have had a home wrongfully foreclosed or suspect that your current foreclosure is wrongful, write to [email protected] (remember the “F”) and ask for help. Lawyers and victims of wrongful foreclosures should be able to pool their resources to attack the massive foreclosure attack with a massive anti-foreclosure attack.

DTC Systems readers can write to [email protected] and ask for help. We will see that your request is sent to the lawyers working on this new program.

Here is the Conclusion from the Order (download below):

Wells Fargo’s actions were not only highly reprehensible, but its subsequent reaction on their exposure has been less than satisfactory. There is a strong societal interest in preventing such future conduct through a punitive award. The total monetary judgment to date is $24,441.65, plus legal interest,$166,873.00 in legal fees and $3,951.96 in costs. Other fees and costs incurred by Jones through the first remand were also incurred and are not included in the foregoing amounts. Because the Court cannot reveal the sealed amount stipulated to by the parties when they settled Jones’ Application for Award of Fees and Costs Related to Remand (“Application”),70 the Court will use Jones’ Application itself as evidence of fees and costs actually incurred up to the date of the Application. The Application and supporting documentation establish that an additional $118,251.93 in attorneys’ fees and $3,596.95 in costs was also incurred by Jones.71 The amounts previously awarded plus the additional amounts incurred establish that the cost to litigate the compensatory portion of this award was $292,673.84. After considering the compensatory damages of $24,441.65 awarded in this case, along with the litigation costs of $292,673.84; awards against Wells Fargo in other cases for the same behavior which did not deter its conduct; and the previous judgments in this case none of which deterred its actions; the Court finds that a punitive damage award of $3,171,154.00 is warranted to deter Wells Fargo from similar conduct in the future. This Court hopes that the relief granted will finally motivate Wells Fargo to rectify its practices and comply with the terms of court orders, plans and the automatic stay.

Download the bankruptcy ruling here: http://dtc-systems.net/wp-content/uploads/2012/04/Jones_vs_Wells_Fargo.pdf

Homeowner Takes Goldman Sachs to Task and Gets a Favorable Loan Modification in Bankruptcy

Homeowner Takes Goldman Sachs to Task and Gets a Favorable Loan Modification in Bankruptcy

By Daniel Edstrom
DTC Systems, Inc.

This bankruptcy case is a few years old (bankruptcy filed on 6/11/2007 and loan mod dated approx. 2009). The Homeowners fight to find the identity of MTGLQ Investors, LP – a Goldman Sachs subsidiary. They end up forcing Goldman Sachs to abandon foreclosure and accept a loan modification. This is a complex case and the debtors acted as their own attorney.

Read the Motion for Relief from Stay here: http://dtc-systems.net/wp-content/uploads/2012/04/22-Motion-for-Relief-from-Stay.pdf

– filed by Attorneys for WMC MORTGAGE CORP., its successors and/or assigns

Read the Amended Motion for Relief from Stay here: http://dtc-systems.net/wp-content/uploads/2012/04/34-Amended-Motion-for-Relief-from-Stay.pdf

– filed by Attorneys for MTGLQ INVESTORS, L.P., its successors and/or assigns

(Yes that is right, one creditor files the motion, then another creditor amends the motion)

Read the Amended Motion for Relief from Stay exhibits here: http://dtc-systems.net/wp-content/uploads/2012/04/34-Amended-Motion-for-Relief-from-Stay_Exhibits.pdf

Read the Motion for Loan Mod Approval here: http://dtc-systems.net/wp-content/uploads/2012/04/96-Motion-for-Loan-Mod-Approval.pdf

Read the Notice of Recorded Loan Mod Agreement here: http://dtc-systems.net/wp-content/uploads/2012/04/102-Notice-of-Recording-of-Loan-Mod-Agreement.pdf

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

By Daniel Edstrom
DTC Systems, Inc.

Following two previous rulings favorable to homeowners, the Supreme Court of Oklahoma rules against another foreclosing bank. This ruling is short and fully excerpted here (or download a PDF at the end of this article).

NTEX REALTY, LP v. TACKER
2012 OK 26
NTEX REALTY, LP, Plaintiff/Appellee,v.CINDY A. TACKER and THERON TACKER, WIFE AND HUSBAND, Defendants/Appellants,
No. 109824.
Supreme Court of Oklahoma.

April 3, 2012.

Phillip A. Taylor, TAYLOR AND ASSOCIATES, Broken Arrow, Oklahoma, for Defendants/Appellants.
Charles C. Ward, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
——————————————————————————–
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
COMBS, J.
FACTUAL BACKGROUND & PROCEDURAL HISTORY.
¶ 1. On January 26, 2007, Appellants executed a promissory note (hereinafter “Note”) payable to Home Funds Direct, Inc. (hereinafter “Lender”). To secure payment of the Note, Appellants executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lender, as mortgagee, a certain mortgage (hereinafter “Mortgage”), which conveyed and mortgaged to the mortgagee certain real property located in Rogers County, Oklahoma. In both the Note and Mortgage, Home Funds Direct, Inc., is named as the Lender and Payee. Appellants defaulted on the Note on July 1, 2010. Appellee initiated foreclosure proceedings on October, 27, 2010. A copy of the non-indorsed Note and Mortgage was included with the petition.
¶ 2. In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment on March 3, 2011. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee’s motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a “full, true, and correct copy of said Note,” the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding. Continue reading “NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks”

Force-Placed Insurance Class Action Lawsuit Initiated in Federal Court

Force-Placed Insurance Class Action Lawsuit Initiated in Federal Court

By Daniel Edstrom
DTC Systems, Inc.

Mortgage Servicers are taking advantage of there position to increase fees by calling homeowners insurance providers and asking them to cancel the policy and send the refund to the servicer. They then place insurance with very low coverage costing typically four times as much. This is a common story we hear over and over again. Allegations in this case detail what happens behind the scenes. Chris Maxwell files this class action complaint against HSBC Mortgage Corporation (USA), Assurant, Inc. and Tracksure Insurance Agency, Inc.

Download case here: http://dtc-systems.net/wp-content/uploads/2012/04/MAXWELL-v-HSBC-MORTGAGE-CORP-COMPLAINT_FPI-FRAUD.pdf

You Know You Are Going To Lose When …

You Know You Are Going To Lose When …

By Daniel Edstrom
DTC Systems, Inc.

Posted by Neil F. Garfield on livinglies.wordpress.com on 3/31/2012 (http://livinglies.wordpress.com/2012/03/31/you-know-you-are-losing-when/). Study this until you have it committed items 1 through 10 to memory.

Taking a line from Jeff Foxworthy, I have compiled the following guidelines of how to know when you are going to lose against the thieving bank seeking to steal your property. You might call it, “You know your screwed when…”

Note: The premise of this article is taken from various points made on this blog and others. The main point is that the obligation to repay the loan arose when the money transaction took place. When money exchanged hands it is presumed that the expectation was that it would be repaid. So the only defenses that exist and the only two defenses that will get the judge’s attention are PAYMENT and WAIVER. Failing to address these issues head on right at the beginning of the first pleading and the first hearing, will most likely lead to failure in the case. Read the appellate decisions that are in favor of the banks and servicers; they all start with a recitation of “facts” that are not true but which nonetheless are taken as true because the borrower failed to put them in issue as contested facts.

Start with the origination documents. If you don’t know whether they have merely reproduced the note and mortgage, then deny it and make them prove it. They could be fabricated from whole cloth. Continue reading “You Know You Are Going To Lose When …”

Ninth Circuit Appeals Court Ruling for Hawaii – Foreclosure Sale Avoided for Lack of Public Announcement

Ninth Circuit Appeals Court Ruling for Hawaii – Foreclosure Sale Avoided for Lack of Public Announcement

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Deontos for this one. The bankruptcy court ruled the foreclosure was invalid. The Bankruptcy Appellate Panel reversed. The US Court of Appeals for the Ninth Circuit affirms “the bankruptcy court’s avoidance of the foreclosure sale.” This ruling is FOR PUBLICATION.

Excerpt

We hold that (1) the lack of public announcement did violate Hawaii’s nonjudicial foreclosure statute, and (2) this defect was a deceptive practice under state law. Accordingly, we affirm the bankruptcy court’s avoidance of the foreclosure sale. However, we remand to the bankruptcy court for a proper calculation of attorneys’ fees and damages under HRS § 480-13.

Download the ruling here: http://dtc-systems.net/wp-content/uploads/2012/03/9th_Circuit_Hawaii_For_Publication_No_Advertisement_and_Foreclosure_Invalid.pdf

All Causes of Action Survive Motion to Dismiss in California Federal Case Against Bank of America

All Causes of Action Survive Motion to Dismiss in California Federal Case Against Bank of America

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Brian Davies for this one. Prosper Law Group’s complaint in Johnson vs. HSBC Bank USA, NA as Trustee for the Ellington Trust Series 2007-1, Bank of America, NA and does 1 – 10 inclusive contains 7 causes of action. The conclusion and order from Federal Judge Jeffrey T. Miller is:

For the reasons stated above, the motion to dismiss is DENIED. Defendants’ motion has failed to demonstrate that Plaintiff’s claims were implausible or precluded as a matter of law.

The following is an excerpt, but the rest is great reading also.

Excerpt

A. Viability of Attack on Loan Securitization
1. Ability to Challenge Loan Securitization
The threshold issue of whether Plaintiff can make any claim related to the loan’s securitization affects the viability of many of the individual claims discussed below. BOA cites Rodenhurst v. Bank of America, 773 F.Supp.2d 886, 899 (D. Haw. 2011) for its statement that “[t]he overwhelming authority does not support a cause of action based upon improper securitization.” However, the discussion cited in that case centers on plaintiffs who claim that securitization itself violates the agreement between the mortgagor and mortgagee. Here, Plaintiff does not dispute the right to securitize the mortgage, but alleges that as a result of improper procedures, the true owner of his mortgage is unclear. As a result, he has allegedly been paying improper entities an excess amount. Continue reading “All Causes of Action Survive Motion to Dismiss in California Federal Case Against Bank of America”

in RE Crawford – No Chapter 13 Payments Required

in RE Crawford – No Chapter 13 Payments Required

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Deontos for this case. The property is not underwater and the debtor has agreed to pay all claims upon sale of the property in a reasonable time. Until the property is sold, no payments will be made on the loan. Plan approved by the bankruptcy judge.

Excerpt 1

The central question in this case is whether a Chapter 13 plan is confirmable where (a) the plan provides for payment in full of a first-mortgage lienholder upon sale of real property in which a debtor has substantial equity, but (b) where the debtor fails to provide for regular payments during the life of the plan. Put another way, may a debtor’s plan be confirmed where the debtor makes no regular payments through the plan, but, instead, makes payment, in full, to all creditors – secured an unsecured – upon sale of her real property under the plan, which property is valued far in excess of all creditors’ claims – secured and unsecured. Continue reading “in RE Crawford – No Chapter 13 Payments Required”

An Excellent Unconscionability, Adhesion, Rescission, Unenforceability and Arbitration Appeals Court Case

An Excellent Unconscionability, Adhesion, Rescission, Unenforceability and Arbitration Appeals Court Case

By Daniel Edstrom
DTC Systems, Inc.

This appeals court case, FOR PUBLICATION, provides an excellent discussion of unconscionable contract terms. Although this case does not relate to mortgage loans, it does discuss this as a contractual issue.

Excerpt 1

Turning to the case at hand, we first address petitioners’ argument the mandatory arbitration provisions contained in their franchise agreements were unconscionable and therefore unenforceable. The doctrine of unconscionability is a judicially created doctrine which was codified in 1979 when the Legislature enacted Civil Code section 1670.5. (Armendariz v. Foundation Health Psychcare Services, Inc, supra, 24 Cal.4th at pp. 113-114.) That section provides in relevant part, “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract . . . .” (Civ. Code, § 1670.5, subd. (a).) While the statute does not attempt to precisely define “unconscionable,” there is a large body of case law recognizing the term has “both a procedural and a substantive element, both of which must be present to render a contract unenforceable. [Citation.] The procedural element focuses on the unequal bargaining positions and hidden terms common in the context of adhesion contracts. [Citation.] While courts have defined the substantive element in various ways, it traditionally involves contract terms that are so one-sided as to ‘shock the conscience,’ or that impose harsh or oppressive terms. [Cit ation.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App. 4th 1199, 1212-1213.)
Both elements need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114.) Additionally, a “claim of unconscionability often cannot be determined merely by examining the face of a contract, but will require inquiry into its [commercial] setting, purpose and effect.” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 926.) Continue reading “An Excellent Unconscionability, Adhesion, Rescission, Unenforceability and Arbitration Appeals Court Case”

Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale

Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale

By Daniel Edstrom
DTC Systems, Inc.

Information from Nye Lavalle and stopforeclosurefraud.com (http://stopforeclosurefraud.com/2012/03/18/stubbs-v-bank-of-america-bac-fannie-mae-ga-nothern-district-court-bac-was-not-the-secured-creditor-entitled-to-foreclose/). Read the entire 14 page ruling for everything, or the following notable excerpts.

Excerpt 1

In a letter dated July 20, 2010, McCurdy & Candler, L.L.C., informed Plaintiff that the property was scheduled for public foreclosure sale on September 7, 2010, before the courthouse door in Fulton County, Georgia. (Id. at Ex. B.) The letter identified BAC Home Loans Servicing as the creditor and stated that the entity with the full authority to discuss, negotiate, or change all terms of the mortgage was Bank of America. (Id.) The foreclosure occurred, and Fannie Mae is now representing to Plaintiff that it owns his home pursuant to the foreclosure sale and demanding that he vacate the property. (Id. ¶ 8.)

In his amended complaint Plaintiff specifically asserts that Fannie Mae owned his loan at the time of the foreclosure and BAC was merely the servicer. (Id. at ¶ 11.) He attaches to the complaint letters from Bank of America and its counsel, dated June 28 and October 13, 2010, which state that Fannie Mae (or in the second letter “FNMA AA MST/SUB CW Bank REO”) is the owner of his mortgage loan and Bank of America/BAC is the servicer. (Id. at Exs. D and E.) These letters identifying Fannie Mae as the secured creditor considered alongside the foreclosure notice letter identifying BAC as the secured creditor created confusion about the identity of the holder of the loan. Plaintiff alleges that no assignment to Fannie Mae was recorded in the county deed records prior to the foreclosure sale. (Id. at 12.) Continue reading “Georgia Rules Secured Creditor Must Be In Chain of Title Prior To Foreclosure Sale”