In RE Miller – Colorado Bankruptcy Appeal – Deutsche Failed to Conform to UCC Requirements

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

Note. Continue reading “In RE Miller – Colorado Bankruptcy Appeal – Deutsche Failed to Conform to UCC Requirements”

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

Legal Standing At Inception

Legal Standing At Inception

By Daniel Edstrom
DTC Systems, Inc.

No I am not an attorney and no I am not providing legal advice. This is the name of an article I just read posted on Neil Garfield’s LivingLies blog. The article is from Mark Stopa, an attorney in Florida. Read this article first and then come back and read my comments below: http://livinglies.wordpress.com/2011/12/19/legal-standing-at-inception/

When I saw the title, I thought awesome, they will go back to the origination of the loan. But they went back to the time the judicial foreclosure case was filed. This is a good argument and it should be fairly straight forward, or at least as straight forward as anything can be in a legal proceeding. What I was looking for was what I heard this last week from somebody. They went to bankruptcy court and told the judge that they had evidence that their loan was table funded, which means the named lender did not provide the money to fund the loan. The money to fund the loan came from an unknown and undisclosed third party. The bankruptcy judge made a simple statement. The judge said that if the named originator did not fund the loan, then they have nothing to transfer, and the movant in the motion for relief from stay (the bank) would therefore have nothing. This judge understands that the note is only evidence of the obligation, it is not the actual obligation. Transfer of the note or the security instrument (Mortgage, Deed of Trust, Security Deed or Mortgage Deed) without an interest in the obligation itself, is meaningless. That is the type of standing issue that I would like to see attorneys make in all states.

Is this why under Regulation “Z” table funded loans have the presumption of being predatory?

Interagency Independent Foreclosure Review – File Your CLAIM

Interagency Independent Foreclosure Review – File Your CLAIM

By Daniel Edstrom
DTC Systems, Inc.

The following regarding the numerous Cease and Desist Consent Orders issued against servicers and others for unsafe or unsound foreclosure policies and practices is available here: http://www.independentforeclosurereview.com/

Independent Foreclosure Review

Looking for information about the Independent Foreclosure Review? Si usted habla español, tenemos representantes que pueden asistirle en su idioma.

Homeowners whose primary residence was part of a foreclosure action between January 1, 2009 and December 31, 2010, and whose home loan was serviced by a participating servicer, may be eligible for an Independent Foreclosure Review.

The Board of Governors of the Federal Reserve System and the Office of the Comptroller of the Currency (federal bank regulators) have required an Independent Foreclosure Review by an independent consultant to identify eligible customers who may have been financially injured due to errors, misrepresentations or other deficiencies in their foreclosure process. If the review finds that financial injury occurred, the customer may receive compensation or other remedy.

To qualify, your mortgage loan would need to meet the initial eligibility criteria: Continue reading “Interagency Independent Foreclosure Review – File Your CLAIM”

Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis

Pro Per Debtor Stops Attorneys for US Bank – in RE Deamicis

By Daniel Edstrom
DTC Systems, Inc.

She has been fighting toothe and nail. Nobody was listening. The current bankruptcy judge was skeptical when she showed up in bankruptcy. But now his ruling on a motion for relief from stay blows the doors off her case. It seems that bank attorneys are confused by something that should be very simple for an attorney. The issue is who is the real party in interest? Many have failed to comprehend what is in a name. If a very large bank is included in the name, most just glaze over it and go right to the pleadings. Here it is in a nutshell: US Bank, NA as Indenture Trustee is MEANINGLESS. This is because when a trust is involved, the trust is the real party, not the bank. US Bank is a trustee of hundreds if not thousands of trusts. Naming them as Trustee does not identify an entity that is real. In the debtors case, the bank foreclosed on her home in the name of US Bank as Indenture Trustee of [some Terwin Trust]. This was a non-judicial foreclosure. In the UD (unlawful detainer), which is a judicial case to evict her, the name used was US Bank as Indenture Trustee. The lawyers did not specify a specific trust. She lost that case in state court and before she was evicted she filed bankruptcy. She had to keep objecting and protesting. Eventually the judge came to the realization that something was wrong. In fact the judge ruled as follows:

“The defect cannot be cured, either directly or implicitly, by any ruling this court can make on behalf of the Terwin Trust in the Second 362 Motion.”

I almost fell out of my chair when I read that. If they put the wrong name, they have to cure the problem. Based on my research, in a very large number of cases the wrong party is named. Including yours truly. Have a nice day, I know I will.

Download the case here: http://dtc-systems.net/wp-content/uploads/2011/08/in-RE-Deamicis-Real-Party-in-Interest-For-Publication.pdf

Bankruptcy Cram-Downs Being Used on Primary Residences

Bankruptcy Cram-Downs Being Used on Primary Residences

By Daniel Edstrom
DTC Systems, Inc.

A “cram-down” is where the principal balance is reduced, usually to fair market value. DSNews.com is reporting that the research firm and ratings agency DBRS has learned from various servicers that cram-downs are being done in some bankruptcy courts. We have seen the occasional cram-down but this shows that it is far more prevalent then most people realize. The effect of a cram-down is that the loan principal balance is reduced to fair market value and all amounts over that are “unsecured”, meaning they could be fully discharged. For example if a homeowner owes $750,000.00 on their primary residence, but the actual market value is $440,000.00, the bankruptcy court could cram-down the loan so that the actual principal balance is $440,000.00 and the rest ($310,000.00) is unsecured debt.

For more, read the DSNews.com article here: http://www.dsnews.com/articles/mortgage-cram-downs-by-bankruptcy-judges-are-taking-place-dbrs-2011-05-02

You can view more about DBRS here: http://dbrs.com/

Bankruptcy Judge Margaret M. Mann Strikes Down Deutsche

Bankruptcy Judge Margaret M. Mann Strikes Down Deutsche

By Daniel Edstrom
DTC Systems, Inc.

The Honorable Judge Mann in Southern California brings the MERS issue up hard against Deutsche Bank National Trust Company.

Read the ruling – in re: Doble, Doble v. Deutsche Bank National Trust Company as Trustee: http://dtc-systems.net/wp-content/uploads/2011/04/Doble-v-Deutsche-Bank.pdf

Bankruptcy Judge Margaret M. Mann GETS IT!

Bankruptcy Judge Margaret M. Mann GETS IT!

By Daniel Edstrom
DTC Systems, Inc.

Coming off of the heels of in re: Agard (http://dtc-systems.net/2011/02/mers-agency-york-bankruptcy-court-agard/), the Honorable Judge Mann from the United States Bankruptcy Court Southern District of California took 76 days to review the Motion for Relief From Automatic Stay for the in re: Salazar Chapter 13 bankruptcy (Bankruptcy No: 10-17456-MM13). The findings of fact and conclusions of law were an amazing reading that confirms many of the issues we have been discussing in regards to loans, securitization and foreclosure. Like Judge Grossman in the agard case, Judge Mann goes to great lengths to research the details that are applicable to this case. Here are some highlights: Continue reading “Bankruptcy Judge Margaret M. Mann GETS IT!”

LAWYERS CLE WORKSHOP ON FORECLOSURE DEFENSE AND OFFENSE

LAWYERS CLE WORKSHOP ON FORECLOSURE DEFENSE AND OFFENSE

April 30 to May 1, 2011 – in Phoenix, Arizona

Venue is to be determined

Wells Fargo will Freeze your Accounts if you Declare Bankruptcy

Wells Fargo will Freeze your Accounts if you Declare Bankruptcy

By Daniel Edstrom
DTC Systems, Inc.

We are receiving numerous reports that when bankruptcy is filed by a consumer, their accounts with Wells Fargo are frozen. This is just a warning to all of those with any type of accounts at Wells Fargo. Be prepared to lose access to your accounts for at least 30 days, probably longer. Too big to fail? No, too big to keep.