Tag: Daniel Edstrom

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/

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?

Deed of Trust Example Language

[Picture: MERS Shareholders]
Deed of Trust Example Language

By Daniel Edstrom
DTC System, Inc.

I have read numerous cases including appeals court cases (both Federal and State).  It appears to me that the actual language from the Security Instrument regarding MERS is being brought up or argued in a very general way and without a thorough analysis.  I am not an attorney and will not provide legal advice to anyone.  This is not legal advice but provided only for educational and informational purposes only.  This is simply what a standard CALIFORNIA-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT WITH MERS Form 3005 looks like, in relation to the main MERS language (not all inclusive).

  • This security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note; and (ii) the performance of Borrower’s covenants and agreements under this Security Instrument and the Note.
  • For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property […]
  • “MERS” is Mortgage Electronic Registration Systems, Inc.
  • MERS is the beneficiary under this Security Instrument
  • MERS is a separate corporation that is acting solely as nominee for Lender and Lender’s successors and assigns. 
  • The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender’s successors and assigns) and the successors and assigns of MERS.
  • Borrower understands and agrees 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, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument 

    •