Reverse Engineering Wall Street
New York vs the MERS Scheme
By Daniel Edstrom
DTC Systems, Inc.
New York Attorney General Eric T. Schneiderman filed a complaint today against JPMorgan Chase Bank, NA, Chase Home Finance, LLC, EMC Mortgage Corporation, Bank of America, NA, BAC Home Loans Servicing, LP, Wells Fargo Bank, NA, Wells Fargo Home Mortgage, Inc., MERSCORP Inc., and Mortgage Electronic Registration Systems, Inc.
Neil Garfield reports:
In RE Miller – Colorado Bankruptcy Appeal – Deutsche Failed to Conform to UCC Requirements
By Daniel Edstrom
DTC Systems, Inc.
Thanks to Deontos for this bankruptcy appeals decision. In RE: Mark Stanley Miller vs. Deutsche Bank National Trust Company. Uniform Commercial Code (UCC) issues are addressed by the appeals court in this ruling.
Excerpt:
4. Deutsche Bank’s Status as “Party in Interest”
¶5 Deutsche Bank presented evidence that IndyMac had indorsed the Note in
blank. Is proof of this indorsement sufficient under the U.C.C. requirements to
establish Deutsche Bank as the successor holder of the note? As we shall see,
it is not, because Deutsche Bank must also prove it has possession of the
Texas Homeowner Survives Motion to Dismiss Against Bank of America
By Daniel Edstrom
DTC Systems, Inc.
Thanks to Deontos for this ruling. Homeowners in Texas survive motion to dismiss in Swim vs. Bank of America et. al.
Excerpt 1:
Defendants represented to Plaintiffs that they would not foreclose during the loan modification process—but they did. Therefore, since Defendants foreclosed during the loan modification process without contacting Plaintiffs to inform them that their trial modification had been rejected, Plaintiffs state a claim for breach of contract.
Excerpt 2:
Section 392.304(a)(19) prohibits a debt collector, in debt collection or obtaining information concerning a consumer, from using a fraudulent, deceptive, or misleading representation or deceptive means to collect a debt or obtain information concerning a consumer. Plaintiffs allege BOA representatives informed Plaintiffs they had provided the required documents and that it would not foreclose during the loan modification process, that BOA and/or BAC repeatedly required documents Plaintiffs already provided, and that BAC foreclosed on the Property during the loan modification process, despite representations that it would not, because Plaintiffs allegedly did not provide documents Plaintiffs claim they provided. The Court finds that such facts state a claim under TDCPA § 392.304(a)(19), and Defendants’ Motion to Dismiss this claim under that section of the TDCPA is thus DENIED. Continue reading “Texas Homeowner Survives Motion to Dismiss Against Bank of America”
Oregon Case Survives BAC Home Loan Servicing Motion to Dismiss
By Daniel Edstrom
DTC Systems, Inc.
Thanks to Charles Cox for finding this one. This is amazing in and of itself since my information indicates that BAC Home Loans Servicing, LP ceased to exist on 7/1/2011.
Excerpt 1:
Second, Defendants argue that the loan modification agreement is subject to the statute of frauds and Plaintiff failed to plead that the loan modification agreement was subscribed by BAC. Under Oregon’s statute of frauds, an “agreement is void unless it… is in writing and subscribed by the party to be charged[.]” Or. Rev. Stat. § 41.580(1). Partial performance may, however, take a contract out of the statute of frauds. Strong v. Hall, 253 Or. 61, 70 (1969);Royer v. Gailey, 252 Or. 369, 373 (1969). Plaintiff’s allegation that BAC accepted partial payments as described under the loan modification agreement for five months is sufficient pleading at this stage to survive Defendants’ argument that the agreement failed to satisfy the statute of frauds. Continue reading “Oregon Case Survives BAC Home Loan Servicing Motion to Dismiss”
Oklahoma Supreme Court Rules Against Deutsche On Two Different Cases – On the Same Day
By Daniel Edstrom
DTC Systems, Inc.
From 4closurefraud.org – Attorney Phillip Taylor takes the foreclosure fight in Oklahoma to the Oklahoma Supreme Court and gets handed two favorable rulings on the same day.
Deutsche Bank National Trust Company vs. Byram quote:
CONCLUSION
¶11 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).
REVERSED AND REMANDED WITH INSTRUCTIONS Continue reading “Oklahoma Supreme Court Rules Against Deutsche On Two Different Cases – On the Same Day”
Southern Essex Registry of Deeds Robo-Signers List
By Daniel Edstrom
DTC Systems, Inc.
The Massachusetts Southern Essex Registry of Deeds provides a list of the robo-signers identified by McDonnell Property Analytics. The list of robo-signers is as follows:
Last First
ADAMS MURIEL
AGUILAR GREENE ANGELA
ALAGIC SANELA
ALFONSO LUISA
AL-HAMMADI WENDY ALBERTSON
ALLEN CHRISTINA
ALLEN GREG
ALLOTEY LIQUENDA
ALTMAN ROBERT
AMICO CHRISTOPHER
ANDERSON CHRISTINE
ANDERSON EARITHA
ANDERSON SCOTT
ANTONELLI ANITA
ARIAS LETICIA
BACHMAN MICALL
BACKUS DEBORAH
BAGGS LORAINE
BAGLEY BRENT
BAILEY DENISE
BAILEY KIRSTEN
BAILEY-SLYH MARTHA
BALARA LORRIANE
BALDWIN CHRISTIE
BALDWIN LISA
BANASZEWSKI MATTHEW
BARRAZA ASHLEY
BARTOW HAL
BELL LANCE
BENIO DONNA
BENIO JENNIFER
BERZ PAULA
BESE TERESA
BISCHOF MARK
BISHOP MARK
BLACKSTUN NATE
BLECHINGER TONYA
BLY BRYAN
BOLDUC LORI
BORDER TIFFANY
BRIGNAC DABORAH Continue reading “Southern Essex Registry of Deeds Robo-Signers List”
Deeds of Trust in California are Practically and Substantially only Mortgages with a Power of Sale
By Daniel Edstrom
DTC Systems, Inc.
Thanks to Simonee for this one – Monterey SP Partnership v. WL Bangham, Inc., 777 P. 2d 623 – Cal: Supreme Court 1989
The California Supreme Court states:
As we explained in describing “the anomalous nature of deeds of trust in this state” (Bank of Italy etc. Assn. v. Bentley (1933) 217 Cal. 644, 657 [20 P.2d 940]), “deeds of trust, except for the passage of title for the purpose of the trust, are practically and substantially only mortgages with a power of sale….” (Ibid.) In practical effect, if not in legal parlance, a deed of trust is a lien on the property.
And a few other tidbits:
“Just as a panda is not a true bear, a trustee of a deed of trust is not a true trustee.” (Stephens, Partain & Cunningham v. Hollis (1987) 196 Cal. App.3d 948, 955 [242 Cal. Rptr. 251].)
Download opinion here: http://dtc-systems.net/wp-content/uploads/2012/01/Monterey_SP_Partnership_vs_WL_Bangham.pdf
Massachusetts Supreme Judicial Court Deciding Hundreds of Years of Real Property Law Regarding MERS
By Daniel Edstrom
DTC Systems, Inc.
In Eaton vs. FNMA, the Supreme Judicial Court is asking for additional briefings to help with the following “issue”:
1/16/2012 #17
ORDER :Having heard oral argument and considered the written submissions of the parties and the various amici curiae, the court hereby invites supplemental briefing on the points described below. Supplemental briefs shall not exceed fifteen pages and shall be filed on or before January 23, 2012. 1. It has been claimed that requiring a unity of the mortgage and the underlying promissory note, in order for there to be a valid foreclosure, would cloud any title that has a foreclosure in the chain of title, regardless of how long ago the foreclosure occurred. The parties are invited to address whether they believe that such a requirement would have such an effect, and if so, what legal or practical measures exist that might limit the consequences of such a requirement. 2. It also has been suggested that, if the court were to hold that unity of the mortgage and note is required under existing law, the court’s holding should be applied prospectively only. The parties are invited to indicate on what authority they believe (or do not believe) the court could make such a holding prospective only.
Securitized Total Consumer Loans Chart from the St. Louis Federal Reserve
By Daniel Edstrom
DTC Systems, Inc.
The tsunami wave that will be felt for the next 30 years minimum. Securitization rose dramatically and has fallen even more dramatically.
From: http://research.stlouisfed.org/fred2/series/TOTALSEC
California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”
By Daniel Edstrom
DTC Systems, Inc.
Thank you to HYDROGENE for this one. According to this decision, the “if any” in the following of a Notice of Default voids the document:
TOGETHER WITH LATE CHARGES AS SET FORTH IN SAID NOTE AND DEED OF TRUST, ADVANCES, ASSESSMENTS AND ATTORNEY’S FEES, IF ANY
UPDATE NOTE added 1/9/2012: The Supreme Court of California denied review of this case but ordered that the opinion be not officially published (See California Court–Rules 976, 977 and 979)
Excerpt (fairly long):
Validity Of Notice Of Default
EMC sought to exercise the power of sale in the Deed of Trust on Anolik’s home based on Anolik’s alleged breach of various obligations secured by the Deed of Trust. Anolik alleged in the fourth cause of action in his second amended complaint (for wrongful foreclosure) that “the events of default as alleged . . . in the Notice of Default . . . [we]re false and untrue” and that “the Notice of Default and Election to Sell [wa]s void” as a result.The trial court concluded the Notice of Default “was proper and is not invalid or void.” Anolik contends the trial court erred in this conclusion. We agree. “The procedure for foreclosing on security by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924 et seq.”5 (Miller v. Cote (1982) 127 Cal.App.3d 888, 894.) Because nonjudicial foreclosure is a “drastic sanction” and a “draconian remedy” (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 827, 830), “[t]he statutory requirements must be strictly complied with.” (Miller, at p. 894.) Continue reading “California Appeals Court: Notice of Default is Void if Description of Default Includes “if any””