In Re Sutter Appeal in Michigan – No Mortgage Exists

In Re Sutter Appeal in Michigan – No Mortgage Exists

By Daniel Edstrom
DTC Systems, Inc.

Here is another case of a fabricated loan document.  Appellants U.S. National Bank and Saxon Mortgage Services, Inc., appeal the order of the district court overturning a judgment of the bankruptcy court granting them an equitable mortgage on property owned by Debtors Daniel and Sheryl Sutter.  The appeals court decision summary:

The district court correctly held that no mortgage, equitable or otherwise, exists on the Sutters’ property. Therefore, we AFFIRM the judgment of the district court..

Download the order here: http://dtc-systems.net/wp-content/uploads/2012/01/Daniel_Sutter_v._U.S._National_Bank_Forged_Mortgage.pdf

Idaho Takes a Big Bite Out of MERS

Idaho Takes a Big Bite Out of MERS

By Daniel Edstrom
DTC Systems, Inc.

Idaho takes a big bite out of MERS in this ruling.  Summary judgment for the homeowner is granted, summary judgment for the MetLife Home Loans is denied.  Check out this (rather long) excerpt:

B. Defendant Lacks Statutory Authority to Maintain a Non-Judicial Foreclosure Under I.C. 45-1505(1) the trustee may foreclose a trust deed if “The trust deed, any assignments of the trust deed by … the beneficiary … are recorded in mortgage records in counties in which the property described in the deed is situated”. The only recorded assignment of the trust deed is by Mortgage Electronic Registration Systems, Inc. (MERS) to MetLife Bank, N.A. dated February 23, 2009. That document purports to transfer all beneficial interest MERS had to MetLife. Continue reading “Idaho Takes a Big Bite Out of MERS”

Florida Attorney General Says Law Firms are Creating Invalid Assignments

Florida Attorney General Says Law Firms are Creating Invalid Assignments

By Daniel Edstrom
DTC Systems, Inc.

The Florida Attorney General is asking the Florida Supreme Court to certify the following question:

Whether the creation of invalid assignments of mortgages by a law firm and subsequent use of such documents by the firm in foreclosure litigation on behalf of the purported assignee is an unfair or deceptive trade practice under FDUTPA which may be the subject of an investigation by the Office of the Attorney General.

 

 Download the Pleading here: http://dtc-systems.net/wp-content/uploads/2012/01/Stern-Motion-for-Certification-before_FL_Supreme-Court.pdf

Balderas vs Countrywide – Federal Appeals Court Reverses Dismissal

Balderas vs Countrywide – Federal Appeals Court Reverses Dismissal

By Daniel Edstrom
DTC Systems, Inc.

You do not have to win your case to survive the motions to dismiss, you only need to allege facts to support a theory that is not facially implausible.  Here is the last paragraph from this ruling:

[9] As we’ve said before, “so long as the plaintiff alleges facts to support a theory that is not facially implausible, the court’s skepticism is best reserved for later stages of the proceedings when the plaintiff case can be rejected on evidentiary grounds.” In re Gilead Sciences Securities Litigation, 536 F.3d 1049, 1057 (9th Cir. 2008). Here, the Balderases clearly alleged in their complaint that they were never given a Notice of Right to Cancel that complied with TILA. If they can prove up this allegation at trial, they’ll win. A complaint containing allegations that, if proven, present a winning case is not subject to dismissal under 12(b)(6), no matter how unlikely such winning outcome may appear to the district court.

REVERSED and REMANDED.

Download ruling here: http://dtc-systems.net/wp-content/uploads/2011/12/Balderas-v.-Countrywide.pdf

Judge Schack Hammers HSBC for False Paperwork

Judge Schack Hammers HSBC for False Paperwork

By Daniel Edstrom
DTC Systems, Inc.

Here are Neil Garfield’s comments regarding this case from LivingLies (http://livinglies.wordpress.com/2011/12/30/schack-bangs-hsbc-for-false-paperwork/):

Posted on December 30, 2011 by Neil Garfield

EDITOR’S NOTE: Plausible deniability went out the window as HSBC tried to get out of the consequences for submitting false, fabricated papers to the court in support of a fraudulent foreclosure. They tried to say they didn’t know. Schack didn’t buy it and slapped them with a $10,000 fine.

But the real story is yet to be told. We are getting closer to the real question, yet the inquiry into WHY false papers are being submitted on such a widespread basis has not occurred. This is the industry that practically invented dotted i’s and crossed t’s. They processed tens of millions of mortgages just the way they wanted them without error. Now they are claiming that they messed up the paperwork because of the same volume that they processed without a problem. And they are layering the responsibility by outsourcing the fabrication, forgery and fraud. Continue reading “Judge Schack Hammers HSBC for False Paperwork”

Texas Ropes One In: Motion to Dismiss Denied

Texas Ropes One In: Motion to Dismiss Denied

By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net

From April Charney:

…”If the holder of the deed of trust does not own or hold the note, the deed of trust serves no purpose, is impotent, and cannot be a vehicle for depriving the grantor of the deed of trust of ownership of the property described in the deed of trust….[finding that]…inherent in the procedural steps outlined in the Texas Property Code is the assumption that whatever entity qualifies as a “mortgagee” either owns the note or is serving as an agent for the owner or holder of the note; and, the statute assumes that when a foreclosure is conducted by someone other than the owner or holder of the note, the person conducting the foreclosure will be acting as agent or nominee for the owner or holder…Otherwise, the Texas statutory law would make no sense, and would be directly at odds with long-standing, basic principles governing the relationship between real estate borrowers, on the one hand, and their corresponding secured real estate lenders, on the other.” (edited from the below decision):
JANE McCARTHY, Plaintiff, vs. BANK OF AMERICA, NA, BAC HOME LOANS SERVICING, LP, and FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants. NO. 4:11-CV-356-A December 22, 2011
 

The OCC Misses the Point on Toxic Waste

The OCC Misses the Point on Toxic Waste

By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net

We all see what we want to see.  But when others control the conversation, it is easy to miss the point.  As a regulator the Office of the Comptroller of the Currency should be taking the lead and controlling the conversation, but in reality, they have been bridled and are being led around by the nose.  Conspiciously absent are numerous issues they as a regulator have the responsibility of dealing with.  This article is timely in response to an article by Neil F. Garfield (http://livinglies.wordpress.com/2011/12/27/the-big-lie-banks-did-nothing-illegal/), which is a response to Yves Smith of Naked Capitalism article (http://www.nakedcapitalism.com/2011/12/more-msm-criticism-of-obama-nothing-illegal-here-move-along-stance-on-foreclosure-fraud.html), which is a response to a Reuters article (http://www.reuters.com/article/2011/12/22/us-foreclosures-idUSTRE7BL0MC20111222).  But I found none of these articles until I was finished writing this post.  Take the following random and critical issues:

  • Are the loans in the pool?  Were the loans ever in the pool?  Does the pool exist?  Did the pool perfect interest in any of the loans?  This issue is very political and the OCC in our opinion will never address this issue or look into this.
  • What loans are in default?  Can a loan be in default?  What comes first, the default or the loss?
  • Are there any compliance issues?

Continue reading “The OCC Misses the Point on Toxic Waste”

World Savings Bank: Wells Fargo Admits Loans Were Securitized

Wells FargoWorld Savings Bank: Wells Fargo Admits Loans Were Securitized
By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
http://livinglies.wordpress.com

In a huge disclosure, Wells Fargo Bank has admitted that World Savings loans were securitized.  This is a big move for homeowners strapped with Option ARM negative amortization loans.  In recent months we have seen numerous endorsements on World Savings promissory notes showing that the notes were in fact endorsed to The Bank of New York.  This is not an isolated incident as we now have 3 confirmed cases where World Savings notes were endorsed to The Bank of New York.  Foreclosure defense lawyers have been seeking to know what this information means for their clients.  These details are revealed in the LivingLies / Luminaq / AHC combo and in the DTC Systems Securitization Reverse Engineering and Failure Analysis for Lawyers (disclosure: DTC Systems provides their unique and premier Securitization Reverse Engineering and Failure Analysis and also provides services to Attorney Neil F. Garfield’s Securitization Report and Securitization Commentary, which is included in the LivingLies Combo).

Here is the original World Savings post: https://dtc-systems.com/world-savings-bank-loans-were-securitizated/

Lona vs Citibank: Decision from Court of Appeals of California

Edstrom_MortgageSecuritization_POSTER_17_x_22_v4_1Lona vs Citibank: Decision from Court of Appeals of California

By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net
http://livinglies.wordpress.com

Here is this summary judgment reversal from an original ruling against a homeowner.   Download the PDF at the end.

LONA v. CITIBANK, N.A.

JONAS Z. LONA, Plaintiff and Appellant,

v.

CITIBANK, N.A., as Trustee, etc. et al., Defendants and Respondents. 

No. H036140.

Court of Appeals of California, Sixth District.

Filed December 21, 2011.

Law Office of Adlore V. Clarambeau, Adlore V. Clarambeau, Attorneys for Appellant Jonas Z. Lona.

Alvarado Smith, John M. Sorich, S. Christopher Yoo, Geoffrey C. Brethen, Attorneys for Respondent Citibank, N.A.

CERTIFIED FOR PUBLICATION

WALSH, J.*

Responding to a mortgage broker’s “marketing enticement,” a homeowner agreed in January 2007 to refinance his home for $1.5 million. With a monthly income of only $3,333, the homeowner quickly fell behind in his monthly payments of $12,381.36. In August 2008, the home was sold at a nonjudicial foreclosure sale. The homeowner filed an action against the lender, the loan servicer, and others to set aside the trustee’s sale claiming that he was a victim of predatory lending. He claimed the transaction was invalid because the loan broker ignored his inability to repay the loan, and, as a person with limited English fluency, little education, and modest income, he did not understand many of the details of the transaction which was conducted entirely in English.

In response to the homeowner’s claim, the lender and the loan servicer moved for summary judgment, arguing: that the homeowner had failed to tender the amounts due on the loans, which was required to set aside the sale; that none of the exceptions to the tender requirement applied; and that the homeowner voluntarily entered into the loan agreements and was personally responsible for the loss of his home. The trial court granted summary judgment to the lender and loan servicer.

We will reverse the summary judgment. In doing so, we define the elements of an equitable cause of action to set aside a foreclosure sale and exceptions to the requirement that the borrower tender any amounts due under the loan. We hold that summary judgment was improper because: the homeowner presented sufficient evidence of triable issues of material fact with regard to the alleged unconscionability of the transaction; and the motion did not address a pertinent exception to the tender requirement, which the homeowner had raised in his complaint. Continue reading “Lona vs Citibank: Decision from Court of Appeals of California”