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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”

Court Rules Federal “Protecting Tenants in Foreclosure Act” Requires 90 Days before Commencing UD in California

Court Rules Federal “Protecting Tenants in Foreclosure Act” Requires 90 Days before Commencing UD in California

By Daniel Edstrom
DTC Systems, Inc.

Thank you to Charles Cox for this one, who sent out this information posted by April Charney:

The Court found that the bank must serve bona fide tenants a 90-day notice under the PTFA, even if the eviction is based on non-payment of rent (which required only a 3-day notice under state law). The ruling follows on the heels of a Massachusetts decision with similar reasoning, FNMA v. Vidal.

compliments of :

National Housing Law Project
703 Market Street Suite 2000
San Francisco, CA 94103
415-546-7000 x. 3112
415-546-7007 (fax)

Download ruling here: http://dtc-systems.net/wp-content/uploads/2012/03/stanko.order_.030711.pdf

World Savings Bank and Fannie Mae Securitizations

World Savings Bank and Fannie Mae Securitizations

By Daniel Edstrom
DTC Systems, Inc.

We have already shown that World Savings Bank securitized commercial and residential loans. See the following posts:

http://dtc-systems.net/2010/12/world-savings-bank-living-legacy-subprime-crisis/

http://dtc-systems.net/2011/03/world-savings-bank-loans-were-securitizated/

http://dtc-systems.net/2011/06/internal-revenue-service-publication-938-remics-reporting-information/

http://dtc-systems.net/2011/12/world-savings-bank-wells-fargo-admits-loans-securitized/

http://dtc-systems.net/2012/02/androes-world-savings-bank-lien-avoided-kansas-bankruptcy-february-2008/

Now we show that World Savings securitized multi-family housing into Fannie Mae pools. These “pools” are REMICs. This deal contains 9 multi-family properties with fixed rate balloon loans. That’s right – no option ARM loans, which is what World Savings Bank is known for.

Download part 1 of the Trust Indenture here: 1-FixedRate_TrustIndenture_Part_1_1982_last_updated_1987

Download part 2 of the Trust Indenture here: 2-FixedRate_TrustIndenture_Part_2_1982_last_updated_1987

Download the Prospectus here: 3-Prospectus_2003_09_01

Download the Prospectus Supplement here: 4-Prospectus_Supplement_1_2003_09_01

Download the Prospectus Supplement Pool Statistics here: 5-Prospectus_Supplement_Pool_Statistics_2003_09_01

Download the Pool Loan Schedule here: 6-Pool_Loan_Schedule

Wrongful Foreclosures Work a Widespread and Devastating Injury on Borrowers, Residents and the Economy as a Whole

Wrongful Foreclosures Work a Widespread and Devastating Injury on Borrowers, Residents and the Economy as a Whole

By Daniel Edstrom
DTC Systems, Inc.

Thank you to Blaqrubi for this case.

The State of Nevada, through its Attorney General, Catherine Cortez Masto, filed this parens patriae lawsuit against Bank of America Corporation and several related entities (collectively, “Bank of America”) in Clark County District Court. Nevada alleges that Bank of America misled Nevada consumers about the terms and operation of its home mortgage modification and foreclosure processes, in violation of the Nevada Deceptive Trade Practices Act, Nev. Rev. Stat. §§ 598.0903-.0999. Nevada also alleges that Bank of America violated an existing consent judgment (“Consent Judgment”) in a prior case between Nevada and several of Bank of America’s subsidiaries, entered in Clark County District Court.

Defendants removed the case to Federal court, the state attempted to remand back to state court and was denied. The state appealed and the 9th Circuit granted remand back to state court.

Foreclosures work a widespread and devastating injury not only to those borrowers who are defrauded, but also on other Nevada residents and the Nevada economy as a whole. Nevada has been particularly hardhit by the current mortgage crisis, and has a specific, concrete interest in eliminating any deceptive practices that may have contributed to its cause.

The Complaint alleges (among other things) that Bank of America has engaged in a pattern of misconduct in which it has and continues to:

Mislead consumers with false promises that it will act on their modifications within a set period of time, but keeps them waiting for months, and sometimes more than a year, beyond the promised term;
Mislead consumers with assurances that they will not be foreclosed upon while the Bank considered their requests for modifications.
However Bank of America has sold the homes of some Nevada consumers and sent foreclosure notices to many more while their requests for modifications were still pending;
Misrepresent to consumers that they must be delinquent on their loans in order to qualify for assistance, even though neither Bank of America’s proprietary programs nor the federal HAMP1 program requires that homeowners have missed payments;
Mislead consumers with false promises that their initial, trial modifications would be made permanent if and when they made the
required three payments on those plans, but then failed to convert those modifications;
Tell consumers their modifications were denied for reasons that were untrue, such as that: (i) the owner of the loan refused to allow the modification when Bank of America had full authority to modify the loan without the investor’s approval; (ii) the Bank had tried unsuccessfully to reach the consumer, even though the consumer repeatedly called the Bank; (iii) the loan was previously modified when it was not; (iv) the borrower failed to make trial payments, when they made all payments; and (v) the borrower was current on his or her loan, when delinquency is not a condition of a modification;
Falsely notify consumers or credit reporting agencies that consumers are in default when they are not;
Mislead consumers with offers of modification on one set of terms, and then provide agreements with materially different terms, or
inform consumers that their modifications had been approved, but then tell them that their requests were denied, often months before.

Take note of this quote which is what the author of this blog has been saying for years:

Falsely notify consumers or credit reporting agencies that consumers are in default when they are not

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

Download the complaint here: http://dtc-systems.net/wp-content/uploads/2012/03/State-of-Nevada-vs-Bank-of-America_Complaint.pdf

Download Exhibit A to the complaint here: http://dtc-systems.net/wp-content/uploads/2012/03/State-of-Nevada-vs-Bank-of-America_Complaint_Exhibit_A.pdf

Download Exhibits B, C and D to the complaint here: http://dtc-systems.net/wp-content/uploads/2012/03/State-of-Nevada-vs-Bank-of-America_Complaint_Exhibits_B_to_D.pdf

Download Exhibits E, F, G, H, I, J, K, L, M, N, O and P to the complaint here: http://dtc-systems.net/wp-content/uploads/2012/03/State-of-Nevada-vs-Bank-of-America_Complaint_Exhibits_E_to_P.pdf

Join Kamala Harris and Co-Sponsor the Homeowners Bill of Rights!

Join Kamala Harris and Co-Sponsor the Homeowners Bill of Rights!

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This week, I stood with Assembly Speaker John Pérez and Senate President pro Tem Darrell Steinberg to introduce the California Homeowners Bill of Rights, which will bring fairness and transparency to mortgages in our state.

Today, I’m writing to ask your help with this work.Powerful special interests will oppose closing the mortgage loopholes that hurt homeowners. We need your help to get this bill to the governor’s desk.

Pledge to join myself and the ReFund California Coalition as a Co-Sponsor to pass the California Homeowners Bill of Rights. We’ll keep you informed and updated as the legislation advances. Continue reading “Join Kamala Harris and Co-Sponsor the Homeowners Bill of Rights!”