Tag: beneficiary

Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1


Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1

By Daniel Edstrom
DTC Systems, Inc.

The Oregon Supreme Court was asked four questions, and answered as follows:

We accepted the district court’s certification and allowed the parties in the federal cases to
present their views. We answer those questions — in two instances as reframed — as
follows:

(1) “No.” For purposes of ORS 86.735(1), the “beneficiary” is the lender to whom the obligation that the trust deed secures is owed or the lender’s successor in interest. Thus, an entity like MERS, which is not a lender, may not be a trust deed’s “beneficiary,” unless it is a lender’s successor in interest.

(2) We reframe the second question as follows:
Is MERS eligible to serve as beneficiary under the Oregon Trust DeedAct where the trust deed provides that MERS “holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests”?

Continue reading “Brandrup v. ReconTrust Co. – MERS Ruling in Oregon Part 1”

State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations

State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations

By Daniel Edstrom
DTC Systems, Inc.

Thanks to Charles Cox and George Christian for locating this indictment.  Each count lists either a forgery or a misdemeanor.  DOCX LLC is named throughout the indictment.  On April 13, 2011 the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Officer of Comptroller of the Currency, and the Office of Thrift Supervision issued a Cease and Desist Consent Order against Lender Processing Services, Inc., DocX, LLC and LPS Default Solutions, Inc. making the following findings:

WHEREAS, in providing document execution services to Examined Servicers, including services that facilitated completing foreclosures, LPS and its employees allegedly:

(a) Executed numerous affidavits and similar sworn statements (collectively, “Affidavits”) making various assertions, such as the ownership of the mortgage note and mortgage (or deed of trust), the amount of principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the Affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such knowledge or review. LPS executed these Affidavits on behalf of Examined Servicers knowing they would be filed in state courts and in connection with bankruptcy proceedings in federal courts; Continue reading “State of Missouri 136 Count Indictment – 68 Class C Felonies for Forgery and 68 Class B Misdemeanors for False Declarations”

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
 

Show me the Note in California

Show me the Note in California

By Daniel Edstrom
DTC Systems, Inc.

I have seen this topic of interest many times as well as numerous court cases where lawyers and judges profer that the note does not need to be produced. Whether it needs to be produced or not I will not venture to guess but for my own case I used California Civil Code 2943 and received an alleged “true and correct copy” almost immediately – including the alleged allonges and the alleged endorsements. For legal advice as to your own situation and the applicability of this law to any situation consult an attorney. This is only what I did for my own case.

California Civil Code 2943

(a) As used in this section:
(1) “Beneficiary” means a mortgagee or beneficiary of a mortgage
or deed of trust, or his or her assignees.
(2) “Beneficiary statement” means a written statement showing: Continue reading “Show me the Note in California”

Title Crisis

Title Crisis

By Daniel Edstrom
DTC Systems, Inc.

If you thought this was a foreclosure crisis brought about by the Mortgage Meltdown, you would be wrong.  If this were a foreclosure crisis only those in foreclosure would be the ones having problems.  And only those loans in foreclosure would be the ones having title issues and “robo-signer” issues.  I cannot say this loud enough: FORECLOSURE IS NOT THE PROBLEM.  Homeowners not making payments is not the problem.  “Freeing up” credit to stimulate lending is not the problem.  If you didn’t get a subprime loan, and yours is a 30 year fixed, you are at risk of a clouded title almost as much as anyone in foreclosure.  In fact, if you have refinanced or purchased your house from 2000 or later, you could easily have a defect in title.  Since I am not a lawyer and can only give myself legal advice, I will only discuss my own case.  And of course these are only my opinions based on my knowledge, education, training and research.  Apparently my title company thinks my title is good.  I know because somebody asked them and they said it was good.  At the end of the article I will explain why they would say that.  What they meant to say was “Everything is great because we, as a title company, are not at risk at all based on our review of your title”. Continue reading “Title Crisis”

What did the Attorneys for OneWest Learn at Trial?

What did the Attorneys for OneWest Learn at Trial?

By Daniel Edstrom
DTC Systems, Inc.

From the United States Bankruptcy Court Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication).  OneWest submitted a motion for relief from stay as a secured creditor.  This means they are the one with money at risk and there is security for the collateral (a Deed of Trust securing the debtors home).  Attorneys had submitted this information and much more on behalf of OneWest.  OneWest used a Brian Burnett to provide a declaration stating under penalty of perjury that OneWest was the real party in interest in connection with the Stay Motion.  Mr. Burnett also stated under penalty of perjury that: (a) OneWest received an interest in the Trust Deed pursuant to an assignment attached to the OneWest Declaration; and (b) that OneWest is “holder and in actual physical possession of the original Promissory Note dated July 14, 2007 …”.  A copy of the note (unendorsed) was attached to the declaration.  This note was identical to the note attached to the Claim (Proof of Claim).

At trial, Charles Boyle, an Assistant Vice President in the Default Risk Management Group, Litigation Department of OneWest, testified, among other things, that the beneficiary of the Loan is Freddie Mac.  This testimony was not consistent with the OneWest Declaration (by Mr. Burnett).  The court required more information after the trial in order to decide the outcome.

OneWest’s post-trial documents contained factual assertions inconsistent with the OneWest Declaration and claim.  OneWest now provided a new copy of the note with an allonge dated July 24, 2007 evidencing a transfer from Original Lender to “IndyMc Bank, FSB” and bore an endorsement in blank from IndyMac Bank FSB. Continue reading “What did the Attorneys for OneWest Learn at Trial?”

Oregon Does it to MERS Again

Oregon Does it to MERS Again

By Daniel Edstrom
DTC Systems, Inc.

Once again MERS is hammered, this time in Federal District Court by the Honorable Owen M. Panner.  This judge understands clearly what is going on and has some serious questions.  Read this case to understand securitization and foreclosures.  Here are some highlights (there are many others):

Should the beneficiary choose to initiate non-judicial foreclosure proceedings, the Act’s recording requirements mandate the recording of any assignments of the beneficial interest in the trust deed.

Nobody held a gun to the head of the servicers and required them to use non-judicial foreclosure.  They have the right to choose which action they wish to use – non-judicial or judicial.  The problem in this case (and almost all other cases), is that the servicers are making the wrong choices.  Why?  Money, what else?.  It is not their concern that they don’t qualify to use non-judicial foreclosures.  It is not their concern that they have to strictly comply with statutes.  In 90% or more of all cases the homeowners are walking away so nobody will know anyway right?  Oops, now the titles have to be cleaned up because of the mess left behind by the servicers, which have all but destroyed the title records for foreclosed properties.  This means that in the future, somebody else will have to file a judicial lawsuit to clean up the title for a property because the servicer made the wrong choice and failed to strictly comply with non-judicial statutes.  By the way this problem is understated and far worse than anyone actually imagines or understands at this point.

Continue reading “Oregon Does it to MERS Again”

Cease & Desist Orders for: Citigroup, HSBC, JP Morgan Chase, MetLife, PNC, SunTrust, US Bancorp and Wells Fargo Bank

Cease & Desist Orders for: Citigroup, HSBC, JP Morgan Chase, MetLife, PNC, SunTrust, US Bancorp and Wells Fargo Bank

By Daniel Edstrom
DTC Systems, Inc.

The latest round of Cease and Desist orders issued by the Office of the Comptroller of the Currency (OCC) are against some of the largest “too big to fail” banks.  Notably missing so far is Deutsche Bank National Trust Company along with Deutsche Bank Trust Company Americas and of course OneWest Bank.

The gist of these Cease and Desist orders is that certain “deficiencies” were found and the banks are operating with “unsafe or unsound” practices in residential mortgage servicing and in the Bank’s initiation and handling of foreclosure proceedings.

We hail the OCC for these efforts, but the problem is following up.  How are the banks going to immediately comply with this order?  They would have to stop processing nearly every single foreclosure they are working on today.

Continue reading “Cease & Desist Orders for: Citigroup, HSBC, JP Morgan Chase, MetLife, PNC, SunTrust, US Bancorp and Wells Fargo Bank”

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!”

The Wrong Remedy at the Wrong Time, Part 3

The Wrong Remedy at the Wrong Time, Part 3

By Daniel Edstrom
DTC Systems, Inc.

The previous three parts to this topic related to the trustee and the beneficiary having the right to petition the court under California Probate Code 17200.  This section will talk about the rights of the settlor to petition the Court under California Probate Code 17200. 

California Civil Code 2934b says the following:

Sections 15643 and 18102 of the Probate Code apply to trustees under deeds of trust given to secure obligations.

Continue reading “The Wrong Remedy at the Wrong Time, Part 3”