Will the Niday & Brandrup Rulings Change How Foreclosures Are Conducted In Oregon? Not Likely!

Will the Niday & Brandrup Rulings Change How Foreclosures Are Conducted In Oregon? Not Likely!

By Daniel Edstrom
DTC Systems, Inc.

This blog post was posted to the Querin Law LLC website (www.q-law.com). Click the link below to read the post.

Will The Niday & Brandrup Rulings Change How Foreclosures Are Conducted In Oregon? Not Likely!

Posted on June 23, 2013 by Phil Querin

Posted in Foreclosure, Litigation, Miscellany, News You Can Use, Real Estate/Distressed, Realtor Risk Management, Residential Housing | Tagged Banks, Foreclosure, MERS, Real Estate

SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date

SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date

By Neil Garfield
Garfield Gwaltney Kelley and White | LivingLies

Maybe this should have been divided into three articles:

Saldivar: Texas BKR Judge finds Assignment Void not voidable. It never happened.
Erobobo: NY Judge rules ownership of note is burden of the banks. Not standing but rather capacity to sue without injury.
SEC Orders Credit Suisse to disgorge illegal profits back to investors. Principal balances of borrowers may be reduced. Defaults might not exist because notices contain demands that include money held by banks that should have been paid to investors.

But these decisions are so interrelated and their effect so far-reaching that it seems to me that if you read only one of them you might head off in the wrong direction. Pay careful attention to the Court’s admonition in Erobobo that these defenses can be waived unless timely raised. Use the logic of these decisions and you will find more and more judges listening with increasing care. The turning point is arriving and foreclosures — past, present and future — might finally get the review and remedies that are required in a nation of laws.

Continue reading “SEC Corroborates Livinglies Position on Third Party Payment While Texas BKR Judge Disallows Assignments After Cut-Off Date”

Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2

Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2

By Daniel Edstrom
DTC Systems, Inc.

Two Oregon Supreme Court Rulings came out yesterday relating to Mortgage Electronic Registration Systems, Inc. The first was Brandrup v. ReconTrust Co. (June 6, 2013), and the subject of this post, which is Niday v. GMAC Mortgage LLC, et al. (June 6, 2013).

Note the following quotes from this ruling:

That is so because, on the present record, MERS’ involvement in the appointment of the current trustee casts doubt on the trustee’s status.

and

But, appointments of a successor trustee may only be made by the trust deed beneficiary, ORS 86.790(3), and, as discussed, MERS is not, and never has been, the beneficiary of the trust deed for purposes of the OTDA.

The ruling is listed in part as follows:

En Banc

On review from the Court of Appeals.*

Argued and submitted on January 8, 2013.

Gregory A. Chaimov, Davis Wright Tremaine LLP, Portland, argued the cause for
petitioner on review Mortgage Electronic Registration Systems, Inc. With him on the
brief were Frederick B. Burnside and Kevin H. Kono.

W. Jeffrey Barnes, pro hac vice, W. J. Barnes, PA, Beverly Hills, argued the cause
for respondent on review. With him on the brief was Elizabeth Lemoine, Makler
Lemoine & Goldberg, PC, Portland.

Hope A. Del Carlo, Portland, filed a brief on behalf of amicus curiae Oregon Trial
Lawyers Association.
Rolf C. Moan, Assistant Attorney General, Salem, filed a brief on behalf of
amicus curiae State of Oregon.

BREWER, J.

The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to that court for further proceedings.

Kistler, J., concurred in part and specially concurred in part and wrote an opinion
in which Balmer, C.J. joined.
*Appeal from Clackamas County Circuit Court, Henry C. Breithaupt, Judge. 251
Or App 278, 284 P3d 1157 (2012).

Continue reading “Niday v. GMAC Mortgage LLC, et al – MERS Ruling in Oregon Part 2”

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”

Full Day CLE Workshop Seminar: New Tools & Strategies for Distressed Homeowners

Full Day CLE Workshop Seminar: New Tools & Strategies for Distressed Homeowners

By Daniel Edstrom
DTC Systems, Inc.

8/25/2012 – Emeryville, CA – Full Day CLE Workshop Seminar: New Tools & Strategies for Distressed Homeowners

August 25th, 2012 – in San Francisco, California

Venue is the Hyatt House in Emeryville, CA http://emeryville.house.hyatt.com

This workshop has been approved for Minimum Continuing Legal Education (MCLE) by the State Bar of California. Total credit hours approved are 6.75 hours.

SECURE DOCUMENT RESEARCH<br>Auburn, CA 95603; ph: 530.888.9600

DTC Systems, Inc.

[email protected]

http://www.dtc-systems.net

Presented by:
Secure Document Research and DTC Systems, Inc.

http://www.dtc-systems.net

in Association with the Garfield Continuum and Neil F. Garfield, Esq. http://livinglies.wordpress.com

Visit us at http://www.dtc-systems.net

If you have any problems paying for this event, you can also pay by sending PayPal payments directly to [email protected]

Problems Registering? Call 530.888.9600

Presented by:
Secure Document Research and DTC Systems, Inc. in Association with the Garfield Continuum and Neil F. Garfield, Esq.
REGISTER EARLY, LIMITED SEATING IS AVAILABLE

Workshop Information
This is a comprehensive 1-day workshop CLE seminar for lawyers and paralegals: Deny and Discover: New Tools & Strategies for Distressed Homeowners

This workshop has been approved for Minimum Continuing Legal Education (MCLE) by the State Bar of California. Total credit hours approved are 6.75 hours.

Speakers:

1. James Macklin

Owner of Secure Document Research providing Securitization Research and Analysis. While working briefly within the securities industry, Mr Macklin has been focused on the study of economics and macro-economics for over fifteen years, gathering professional insight into Generally Accepted Accounting Principles, Financial Accounting Standards, business ethics, securitization and the effects of “Control Fraud” (William Black, Professor; U.M.K.C.,) on market analysis. Mr. Macklin is now committed to the education, en mass, of the legal industry as a tool for the protection of rights of the under-sophisticated investing and borrowing public at large. James Macklin has over 10,000 hours of research into Securitization, Title and Publicly Recorded Instruments.
[email protected]

2. Daniel Edstrom

President of DTC Systems, Inc, having been in Information Technology for the last 18 years as a Systems Architect and Software Architect.The transformation of complex business requirements to complex Wall Street Engineering was an easy one. Securitization Expert, Daniel Edstrom analyzes complex financial engineering securitization transactions as well as providing a failure analysis, with well over 10,000 hours of research into Securitization and Title. Besides working for his own company, Daniel is a Senior Securitization Analyst for the Garfield Firm (www.garfieldfirm.com). [email protected]

3. Neil Garfield

Neil F. Garfield, M.B.A., J.D., 61, is the winner of dozens of academic awards, a popular speaker, and author of technical treatises on law and economics. He has come out of retirement with a bang and financial institutions should take note. He knows them from the inside-out, who the deciders are, and how they arrived at a catastrophic scheme to defraud people, agencies, institutions and governments all over the world. For more information on Neil Garfield visit his website at www.livinglies.wordpress.com

4. Daniel Hanecak

Daniel Hanecak, B.A. J.D., will be speaking on motion practice and recent court experience. Mr. Hanecak is licensed in California and specializes in complex real property litigation. Mr. Hanecak is currently representing homeowners against banks and mortgage servicers for fraud and wrongful foreclosure.

*Both James Macklin and Daniel Edstrom are not attorneys.

THIS WORKSHOP AND/OR ANY MATERIALS DISTRIBUTED AT THE WORKSHOP IS NO SUBSTITUTE FOR LEGAL ADVICE FROM LOCAL COUNSEL LICENSED TO PRACTICE IN THE COUNTY AND STATE WHERE THE SUBJECT PROPERTY IS LOCATED. The information presented is for general information for you to understand the current context of foreclosures and to enable you to ask relevant questions of an attorney of your choosing. Any opinions presented here, along with facts, cases, examples or arguments, may not apply to your case. You should consult with local licensed counsel before employing them.

Venue:

Venue is the Hyatt House in Emeryville, CA

http://emeryville.house.hyatt.com

Registration:
Pre-Registration is required and can be done on this website or over the phone at 530.888.9600, with payment by PayPal to [email protected]. Tickets will be emailed after payment is completed.

Pricing:
$497.00 for the one day workshop.

This workshop has been approved for Minimum Continuing Legal Education (MCLE) by the State Bar of California. Total credit hours approved are 6.75 hours.

Workshop Agenda

8:30–9:15 Introduction: James Macklin / Daniel Edstrom

9:15–10:00 The Securitization Process and Chain of Title: James Macklin

10:00–10:15 Morning Break

10:15–11:00 Prospectus, Pooling/Servicing and Trust Agreements: James Macklin

11:00–11:45 Discovery / Procedure: Neil F. Garfield, J.D., M.B.A.

11:45 to 1:00 Lunch

1:00–1:45 Proprietary Currency, Appraisals and Ratings: Neil F. Garfield, J.D., M.B.A.

1:45–2:30 Law and Motion Practice / Recent Courtroom Experience: Daniel Hanecak, Esq.

2:30–2:45 Afternoon Break

2:45–3:30 Credit Enhancements in Action: Daniel Edstrom

3:30–4:15 Panel Q&A

** Schedule subject to change without notice **

GMAC Residential Capital Lists 200-999 Creditors, Failing to Disclose Tens of Thousands of Homeowner Claims

GMAC Residential Capital Lists 200-999 Creditors, Failing to Disclose Tens of Thousands of Homeowner Claims

By Daniel Edstrom
DTC Systems, Inc.

Note that the original article has been updated to fix my mistake of showing 299 creditors when the number of creditors listed on the Voluntary Petition was 200-999. On April 13, 2011 the Board of Governors of the Federal Reserve System and the Federal Deposit Insurance Corporation issued a Cease and Desist Consent Order against Ally Financial Inc. fka GMAC LLC, Ally Bank fka GMAC Bank, Residential Capital LLC (and its direct and indirect subsidiaries) and GMAC Mortgage LLC. During the period of 1/1/2009 to 12/31/2010, the Mortgage Servicing Companies completed 89,998 foreclosure actions, representing less than 4 percent of the Servicing Portfolio over such such time period. View the attached Voluntary Petition below to see the number of creditors identified. The regulators found the following:

WHEREAS, in connection with the process leading to certain foreclosures involving the Servicing Portfolio, the Mortgage Servicing Companies allegedly:

Filed or caused to be filed in state courts and in connection with bankruptcy proceedings in federal courts numerous affidavits executed by employees of the Mortgage Servicing Companies or employees of third-party providers making various assertions, such as the ownership of the mortgage note and mortgage, 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;

Filed or caused to be filed in courts in various states and in connection with bankruptcy proceedings in federal courts or in the local land record offices, numerous affidavits and other mortgage-related documents that were not properly notarized, including those not signed or affirmed in the presence of a notary;

Litigated foreclosure and bankruptcy proceedings and initiated non-judicial foreclosures without always confirming that documentation of ownership was in order at the appropriate time, including confirming that the promissory note and mortgage document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party;

Failed to respond in a sufficient and timely manner to the increased level of foreclosures by increasing financial, staffing, and managerial resources to ensure that the Mortgage Servicing Companies adequately handled the foreclosure process; and failed to respond in a sufficient and timely manner to the increased level of Loss Mitigation Activities to ensure timely, effective and efficient communication with borrowers with respect to Loss Mitigation Activities and foreclosure activities; and

Failed to have adequate internal controls, policies and procedures, compliance risk management, internal audit, training, and oversight of the foreclosure process, including sufficient oversight of outside counsel and other third-party providers handling foreclosure-related services with respect to the Servicing Portfolio. Continue reading “GMAC Residential Capital Lists 200-999 Creditors, Failing to Disclose Tens of Thousands of Homeowner Claims”

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

By Daniel Edstrom
DTC Systems, Inc.

Following two previous rulings favorable to homeowners, the Supreme Court of Oklahoma rules against another foreclosing bank. This ruling is short and fully excerpted here (or download a PDF at the end of this article).

NTEX REALTY, LP v. TACKER
2012 OK 26
NTEX REALTY, LP, Plaintiff/Appellee,v.CINDY A. TACKER and THERON TACKER, WIFE AND HUSBAND, Defendants/Appellants,
No. 109824.
Supreme Court of Oklahoma.

April 3, 2012.

Phillip A. Taylor, TAYLOR AND ASSOCIATES, Broken Arrow, Oklahoma, for Defendants/Appellants.
Charles C. Ward, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
——————————————————————————–
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
COMBS, J.
FACTUAL BACKGROUND & PROCEDURAL HISTORY.
¶ 1. On January 26, 2007, Appellants executed a promissory note (hereinafter “Note”) payable to Home Funds Direct, Inc. (hereinafter “Lender”). To secure payment of the Note, Appellants executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lender, as mortgagee, a certain mortgage (hereinafter “Mortgage”), which conveyed and mortgaged to the mortgagee certain real property located in Rogers County, Oklahoma. In both the Note and Mortgage, Home Funds Direct, Inc., is named as the Lender and Payee. Appellants defaulted on the Note on July 1, 2010. Appellee initiated foreclosure proceedings on October, 27, 2010. A copy of the non-indorsed Note and Mortgage was included with the petition.
¶ 2. In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment on March 3, 2011. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee’s motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a “full, true, and correct copy of said Note,” the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding. Continue reading “NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks”

New York vs the MERS Scheme

New York vs the MERS Scheme

By Daniel Edstrom
DTC Systems, Inc.

New York Attorney General Eric T. Schneiderman filed a complaint today against JPMorgan Chase Bank, NA, Chase Home Finance, LLC, EMC Mortgage Corporation, Bank of America, NA, BAC Home Loans Servicing, LP, Wells Fargo Bank, NA, Wells Fargo Home Mortgage, Inc., MERSCORP Inc., and Mortgage Electronic Registration Systems, Inc.

Neil Garfield reports:

“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages. Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law,” Continue reading “New York vs the MERS Scheme”

Massachusetts Supreme Judicial Court Deciding Hundreds of Years of Real Property Law Regarding MERS

Massachusetts Supreme Judicial Court Deciding Hundreds of Years of Real Property Law Regarding MERS

By Daniel Edstrom
DTC Systems, Inc.

In Eaton vs. FNMA, the Supreme Judicial Court is asking for additional briefings to help with the following “issue”:

1/16/2012 #17

ORDER :Having heard oral argument and considered the written submissions of the parties and the various amici curiae, the court hereby invites supplemental briefing on the points described below. Supplemental briefs shall not exceed fifteen pages and shall be filed on or before January 23, 2012. 1. It has been claimed that requiring a unity of the mortgage and the underlying promissory note, in order for there to be a valid foreclosure, would cloud any title that has a foreclosure in the chain of title, regardless of how long ago the foreclosure occurred. The parties are invited to address whether they believe that such a requirement would have such an effect, and if so, what legal or practical measures exist that might limit the consequences of such a requirement. 2. It also has been suggested that, if the court were to hold that unity of the mortgage and note is required under existing law, the court’s holding should be applied prospectively only. The parties are invited to indicate on what authority they believe (or do not believe) the court could make such a holding prospective only.

Who is Responsible for the Conduct of Foreclosure Mill Law Firms?

Who is Responsible for the Conduct of Foreclosure Mill Law Firms?

By Daniel Edstrom
DTC Systems, Inc.

Here is the analysis, which comes word for word from the Interagency review of Foreclosure Policies and Practices in 2010 (available here: http://dtc-systems.net/wp-content/uploads/2011/04/InterAgency_Review_4900701.pdf).

The Federal Reserve System, the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the Office of Thrift Supervision (OTS), referred to as the agencies, conducted on-site reviews of foreclosure processing at 14 federally regulated mortgage servicers during the fourth quarter of 2010.

This report provides a summary of the review findings and an overview of the potential impacts associated with instances of foreclosure-processing weaknesses that occurred industrywide. In addition, this report discusses the supervisory response made public simultaneous with the issuance of this report, as well as expectations going forward to address the cited deficiencies. The supervisory measures employed by the agencies are intended to ensure safe and sound mortgage-servicing and foreclosure processing business practices are implemented. The report also provides an overview of how national standards for mortgage servicing can help address specific industrywide weaknesses identified during these reviews. Continue reading “Who is Responsible for the Conduct of Foreclosure Mill Law Firms?”