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1640(e) as a strong affirmative defense for your clients? If you are a consumer: Have you had your loan (from day of application to current) audited by a forensic consumer debt analyst? I get a fair amount of "conspiracy theory " calls or emails people who would swear that the CIA was covertly involved in the loan they signed for and that all measures of fraud occurred against them by everyone involved and... you get the point. My first question to this person is always: "Great, so are you prepared for the $15,000+ retainer a good attorney is going to want to spend their time investigating, quantifying, pleading and trying a case like that? Well, you know the answer... Others have read (or have heard) that a loan audit and violations of the TILA can only help you if it's a refinance loan on a primary residence in the last three (3) years. To have the EXTENDED RIGHT TO RESCIND, these conditions must be in place but rescission isn't the only thing that can help someone in (or in danger of) foreclosure. When it comes to defending yourself against foreclosure the first order of business is to establish clear and genuine issues of material fact in the case. In a Florida foreclosure defense strategy, the client wants to quantify these genuine issues of material fact in the foreclosure case because no judge should ever grant a motion for summary judgment. Why? In the state of Florida, there is extensive established law that prevents summary judgment from being granted when there are outstanding issues of material fact. Johnson v. Boca Raton Community Hosp., Inc., 985 So.2d 141, Murphy v. Young Men's Christian Association of Lake Wales, Inc., 974 So.2d 565. A "material fact," for summary judgment purposes, is a fact that is essential to the resolution of the legal questions raised in the case, Continental Concrete, Inc. v. Lakes at La Paz III Ltd. Partnership, 758 So.2d 1214. Successfully defeating summary judgment is a big score in favor of the consumer and can greatly improve the chances of obtaining a viable and fair workout and thus ultimately, avoiding foreclosure. So, one area of practice Lane Houk and his team help consumer attorneys with is by completing a forensic loan audit on the client's loan documents from the day they applied for that loan through to current day. Why would a foreclosure client want this done? Let's think about it... 1. Often times, the client did not receive proper "pre-closing disclosures" under both Truth in Lending laws (TILA) and Real Estate Settlement Procedures Act (RESPA); 2. Especially when there was a mortgage broker or interim lender involved 3. The actual "lender" in the transaction was under same timeframe obligations to make specific disclosures to client from the day they received application 4. The many servicing abuses which could have taken place from day of closing to current
But. I hope this little insight gives you some ideas on how you can help yourself in a foreclosure case. Houk .) Any such quantified claim of a violation of the TILA (Truth in Lending Act) from an expert audit report should be brought as an affirmative defense by the attorney. almost all foreclosure complaints are served with some level of disclosure that "this is an action to collect on a debt") however NOT disclosing that does not necessarily preclude that any such action is NOT an attempt to collect on the debt. something that is much needed these days because I still see a great deal of servicer abuse/misprepresenations happening every single day. A consumer can only bring an action for damages within one year from the date of closing. Insufficient amount of certain disclosure violations 6. within one year from the date of the occurrence of the violation..2009. If you want more information on forensic loan audit. Lane has done well over 400 hours of research on Foreclosure Defense and Consumer Rights Issues in the areas of Fair Credit Reporting Act. that subsection does not bar a person from asserting a violation of this subchapter in an action to collect the debt which was brought more than one year from the date of the occurrence of the violation as a matter of defense by recoupment.com Article Source: http://EzineArticles. this give you/your client much greater time in the house and time to try to work something out that works for both parties. Fair Debt Collection Practices Act. The lender will have to bring the action all the way through to trial. Under the TILA civil liability section [15 U.S. please call me at (800) 985-4685 ext. reading and experience in the real estate and finance industries to develop resources to help others who find themselves in a tough situation.com © Lane A. or in any other court of competent jurisdiction. 2 or by email at Lane@thePatriotsWar.All Rights Reserved Author Info: Lane Houk has 8 years of mortgage banking and finance experience and also maintains an active real estate license in Florida. Escrow mishandling abuses (I've seen people nearly lose their house to a bona fide mistake the bank made but wouldn't budge until a good attorney got involved) 7. RESPA and more. At the very least.5. 1640(e)] regarding violations it says that any action under that section may be brought in any United States district court. This is a rock solid issue of material fact. the consumer is not barred from bringing a claim as a "matter of defense by recoupment" in a foreclosure action because a foreclosure action is an action to collect the debt. The list goes on.. However..C. You care read more on Lane's Educational Blog at http://www. No summary judgment.thePatriotsWar.com/?expert=Lane_Houk . (ie.. This should give you much greater leverage to obtain a workout. He has combined his research. Truth in Lending Act.
the pooling and servicing agreement. I started hearing a few months ago about a sudden and suspicious increase in the number of foreclosures Bank of America was making in its own name.000 cases in a few weeks and nothing was amiss. and everything else about foreclosures is just fine. When foreclosure defense attorneys started contesting these assignments. and when it is used. The bank position so far has been that problems so far are mere mistakes and “sloppiness”. The problem is that an allonge is supposed to be used only when there is no space left on the note for endorsements. 2010 Bank of America Allegedly Foreclosing Fraudulently in Kentucky If you were to believe the banks.Thursday. the New York trust statutes that govern virtually all mortgage securitization trusts. But as we’ve described repeatedly. In the example we .. the banks just need to redo some paperwork. suddenly a new ruse started to show up: allonges. Why would the courts see such an explosion in foreclosures in the relatively small proportion of mortgage that BofA had kept on its books? Lawyers suspected that BofA was falsely claiming that it owned the loan to circumvent questions about standing (if the note had not been conveyed to the trust properly. it is supposed to be so firmly attached to the original as to be inseparable. BofA was in effect saying that it owned these loans and had never securitized them. and Countrywide has said in its SEC filings that it securitized 96% of them. would magically appear out of nowhere. having made the implausible claim that it had reviewed 102. the bank has been filing deficiency judgments for the remaining mortgage balance. then the trust might not be able to foreclose). November 11. That seemed questionable. quite separate from the note. We now have some evidence that these suspicions are correct. including margins and the reverse side. Yet Bank of America. which are sheets of paper that contained the needed endorsements. was forced to retreat and acknowledge that it’s review hadn’t been comprehensive. They claim that the robo signers really weren’t doing anything seriously wrong. and it was finding errors at a rate that could exceed 5%. the concern over foreclosure “improprieties” is way overdone. But these “ta da” allonges were always somehow discovered at the custodian. After taking the house. a trust. since the bulk of Bank of America’s mortgages had been originated by Countrywide. And that had to take place by closing or at most 90 days thereafter. Many foreclosures show this process was not observed on a widespread basis: the notes were assigned (as in transferred) to the trust right before closing. the problems with securitzations run much deeper than that. Bank of America appears to have improved the state of the art in the creative foreclosure procedures department. The attorney files a Chapter 13 bankruptcy. A bankruptcy attorney in Kentucky has been working with clients who have lost their homes in foreclosures in the name of Bank of America. The PSA required that each note in the deal had to be signed by multiple intermediary parties before it got to its supposed final resting place. a violation of the PSA. It appears that the parties to the deal often failed to take the time consuming steps necessary to convey the note (the borrower IOU) to the trust as stipulated in the contract governing the deal. and IRS rules for these trusts (REMIC).
Bank of Americ Proof of Claim– Suedkamp This sort of abuse is far more serious than robo signing. This means the odds are awfully high that Bank of America committed multiple frauds on the court. Before the confirmation hearing. The attorney for the borrower. So the trust does not now own the note either. The assignments are legally void by virtue of being out of time and by being inconsistent with conveyance chain stipulated in the PSA (which would have been from Countrywide through at least one intermediary entity to the trust. raises all kinds of hell in the hearing. It’s high time we see some attorneys disbarred and some law firms go out of business as a result of foreclosure chicanery. The second assignment is from Bank of America to trust CWABS 2003-B6. the law be damned. as well as serious investigations of the people involved in foreclosure litigation at the servicers and the banks’ general counsel’s office. the allonges look odd. By contrast. the attorneys at the law firm and the parties at the servicer had to be aware of this device. The steps undertaken here look to be a deliberate. The assignment is from MERS to Bank of America executed on September 29. and now on the Federal bankruptcy court. . The attorney for Bank of America makes a response to the objection. A Proof of Claim is filed later that day. each representing the same debt obligation. Which would you believe? 2.have here. It shows a series of assignments that were executed after the judgment (meaning after the house was taken by BofA) and after the borrower’s attorney filed the bankruptcy petition. Bank of America next files an objection to the bankruptcy plan. and wants an explanation of how two creditors. At a minimum. And if our reading of this document is correct. this practice has all the appearances of multiple coverups of the fact that Countrywide trust did not have standing to foreclose on the house. when neither has yet filed a Proof of Claim. pure and simple. Either Countrywide lied in its 2003 SEC filings or the loan was never on Bank of America’s books. And even more fun. And this clearly took more parties and more thought than the robo signing abuses. As much as the likely misconduct here and robo signing would both be considered frauds on the court. needless to say. So we have: 1. can each object to the plan. the same attorney files a second objection to the plan in the name of a Countrywide trust. the robo signing is arguably cost cutting gone mad and riding roughshod over proper legal procedures. this is fraud. SEC filings show the loan as asset of CWABS 2003-BC6. first on the state court in the foreclosures process. concerted effort for the bank to get its way. it appears never to have completed the steps. Even though Countrywide appears to have intended to convey the loan to its CWABS 2003BC6 trust. Here is the juicy part. This assignment has not been recorded in the land office as of November 10.
it does appear that BofA may be able to get off on a series of technicalities on this one. defendant BofA notes “Plaintiffs assert that these affidavits were “necessarily perjured” because Ms. regardless of whether the affidavits contained some inaccurate statements. Indeed.. does it present a verifiable case that it does in fact own the underlying mortgage note. i.” Having read the motion to dismiss. In addition. In other words. Some of the disclosed weaknesses in the Davis case. making a technicality-based defense that much more difficult. And the main thing BofA does not defend against is the underlying allegation that fraudulent affidavits were used to evict the Davis family. examined all of the documents or exhibits “and still read all of the accompanying documentation to all of the other affidavits [ ] signed the same day. Stuns RoboChurners.e. Plaintiffs plead no facts to support their claim that the result. . once the technicalities are all resolved in the next RICO lawsuit. Thus. there is little it can do to defend itself against an onslaught of comparable legal claims. and therefore do not have standing to assert a claim under RICO.” The bulk of BofA’s defense is centered around a technicality: it says Plaintiffs do not “seek to reopen or disturb the judgments in [the Foreclosure Action].” The Davises also have some choice words about MERS saying it is “widely reported” that MERS was “poorly conceived and sloppily run. Plaintiffs fail to plead that the allegedly improper activities of Defendants caused them any harm. In its Motion to Dismiss. Viveros could not have read the allegations in the complaints. more importantly. Plaintiffs plead no facts to show they were injured by reason of the allegedly false affidavits. but Plaintiffs take no issue with the facts and figures showing Plaintiffs’ default on their mortgage. Misses. seeking monetary damages for what they now claim is a fraudulent eviction on the ground that the affidavit was signed by two Robosigners: one Keri Selman and one Melissa Viveros. Sends Market Lower Bullish Smoke Signals Detected at Human Genome Sciences BofA Reveals Its Fraudclosure RICO Defense Strategy Courtesy of Tyler Durden Today. all the holes presented by BofA’s attorneys will be filled. these judgments are valid and binding on them. and exposed how it plans on defending itself to the recently launched RICO case by the Davis family (Southern Illinois. Selman and Ms. Plaintiffs’ issue with the affidavits is that the affiants did not have personal knowledge and the affiants’ titles were misstated. Bank of America filed its first official response. a judgment of foreclosure. nor. 10-01303).Disney Releases Earnings Early. yet that will only enable subsequent RICO suits to emerge using the weaknesses of the Davis case. as presented by BofA’s Dismissal Motion: Because Plaintiffs expressly disclaim any attempt to upset the foreclosure judgments. As such. since if BofA/CFC indeed does not own the mortgage note. would have been any different had the alleged inaccuracies in the underlying affidavit been discovered in the state court proceeding. and instead seek only monetary damages as a result of being prematurely evicted from their houses based on perjured affidavits.
The core of BofA’s defense revolves around the following argument: Plaintiffs plead no facts to support their claim that the result. Sept.. would have been any different had the alleged inaccuracies in the underlying affidavit been discovered in the state court proceeding. not in possession of a mortgage title. Plaintiffs plead no facts to show they were injured by reason of the allegedly false affidavits. If Judge Jane Magnus-Stinson sides with the plaintiffs. is a merely sideshow to the main issue here. Ariz. Dist. LEXIS 87997. a judgment of foreclosure. to seek a RICO case against BofA.S. the servicer does not have legal recourse to foreclose in any capacity. footnote 2 on page 4 is very relevant as it seems to reference an interesting case law of “alleged MERS deficiencies”: Despite Plaintiffs’ devotion of a significant portion of their Complaint to discussion of the alleged deficiencies involved with MERS. Ultimately. And that case will serve as the basis for the required series of steps to backtrack. Thus. Eventually there will materialize a case where BofA is found to be note deficient. as the defendant claim. and therefore do not have standing to assert a claim under RICO. which means unwinding a prior state-level decision. then the plaintiffs’ case is weak. 2009) (order granting motion to dismiss) (dismissing a claim that the MERS system was fraudulent because plaintiffs failed to plead that the MERS system had any affect on the their obligations under their mortgages or that MERS’ system fraudulently induced consumers to enter into loans). Plaintiffs’ issue with the affidavits is that the affiants did not have personal knowledge and the affiants’ titles were misstated. Dist. Cervantes v. if so desired. at *59 (D. the MERS system has recently been upheld as a valid recording system. 2010) (order granting motion to dismiss) (dismissing plaintiffs’ claim that . i. Until then. and then proceeding with a RICO suit. look for BofA stock to plunge by 10% the second it becomes public. 2010 U. Indeed. LEXIS 106345. at *29-34 (D. As an aside. This will at best buy the bank a few months. 23. and then. 30. BofA has decided to hide behind technicalities. If on the other hand. is the much more relevant issue of whether BofA did in fact have the right to accelerate and seek a foreclosure judgment. Ariz. affidavit fraud in any dimension. but Plaintiffs take no issue with the facts and figures showing Plaintiffs’ default on their mortgage. Inc. 2009 U. and refuses to dismiss the case. Which it would not if it is. We will follow this case closely to see if the Judge grants BofA its motion to dismiss.e. namely that without claim to the actual mortgage. if Bank of America as successor to Countrywide does in fact have ownership of the note. Countrywide Home Loans. and merely embolden more foreclosure fraud victims to step up and sue the bank.. yet on the other.S. And this is the one issue that is glaringly avoided by BofA. In Re MERS Litig. In other words there are two very opposing processes here: on one hand the fact that the mortgage borrowers did not have money (which appears to be undisputed) and that they did in fact stop making payments. To be sure. Sept. to set case precedent with the unwinding of a prior foreclosure. such a note is not in possession. We are confident that is only a matter of time. then the plaintiff should have challenged he vary validity of the foreclosure judgment.
Illinois. (Wealth Daily. It would be useful if some of our legal readers chime in with their view on just how strong this case is and if it has any chance of being appealed. Full filing (pdf) BofA V Davis 11. Danny K. You can leave a response.defendants used MERS to conspire to commit fraud because it was “an attack on the legitimacy of the MERS system itself. Illinois. 14th Gutierrez. Bill. Luis.. Foreclosure at Wikinvest This entry was posted on Thursday. or trackback from your own site. Illinois. Jerry.10. Illinois.pdf 60.. Judy. It appears the Cervantes v. NY Fed Pressuring BofA to Repurchase Dud Mortgages (Empty Threats Edition) (naked capitalism. Illinois.. 11/11/10) PIMCO. Illinois – House of Representatives • • • • • • Bean. 7th Foster. 2010 at 4:48 pm and is filed under Immediately available to public. 10/19/10) New York Fed Suing Bank of America. 13th Costello.10 Attachment Size BofA V Davis 11. Countrywide Home Loan will be used often in future cases where the validity of MERS is questioned. Melissa L. 8th Biggert.” which had already been resolved in Cervantes). 4th . 10/19/10) Read more on Bank of America.19 KB More on this topic (What's this?) Bank of America Allegedly Foreclosing Fraudulently in Kentucky (naked capitalism.. 12th Davis. November 11th. Illinois.
Richard J. 2nd Johnson.(D .. 18th Shimkus. Illinois. has DEFRAUDED our state of millions (possibly BILLIONS) of dollars in revenue in the past 12 years. Illinois.senate. Timothy V. 16th Quigley. I expect you to stand with Obama’s veto of HR 3808. Roland W. Jan. 15th Kirk. and is explicitly barred by The Constitution. 10th Lipinski. 5th Roskam. 3rd Manzullo. Peter J. John. HR 3808 is a way to legalize mortgage electronic registration system (MERS). My family and . Our notarization rights should be within OUR STATE and not in control of the Feds.senate. Mark. Aaron. .cfm Class III Durbin. MERS must be left to crumble and so should the big banksters.gov/contact/contact. .. 1st Schakowsky. 11th Jackson Jr. 9th Schock. cooked up by the big banksters. Illinois. Illinois. Such a bill. Phil. Daniel.• • • • • • • • • • • • • Hare. Deborah "Debbie".(D . Illinois. 6th Rush. This pernicious entity.. Donald. Illinois. If such a law is in fact introduced it would turn the rule of law on its ear and make clear that we now live in a nation where literal theft will be made legal retroactively by the Congress and President in an explicit form and with the impact of literally stealing millions of privately-held homes. Illinois. were it to be promulgated. Illinois. 17th Halvorson. Illinois. Jesse L. would be an act of intentional subversion of The Constitution and a violation of the oath of office of every Congressperson who votes or argues for it.. Furthermore.IL) 309 HART SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-2152 Web Form: durbin. Illinois. 19th Senators of the 111th Congress þÿ þÿ þÿ What is a class? Burris..IL) – to be replaced by Mark Kirk 387 RUSSELL SENATE OFFICE BUILDING WASHINGTON DC 20510 (202) 224-2854 Web Form: burris. Illinois.cfm Class II Message about legalizing MERS ALERT: Congress is Considering Retroactively Making MERS ‘Legal’ That would be an ex-post-facto law. Mike.gov/contact. Illinois. Bobby L. Illinois.
VERY TIRED of the bailouts to “Too Big To Fail. 2010 at 1:11 PM I agree if the securitization voids the contract thats that. There are over 7. BAC Home Loan Servicing LP . Naomi Dudek and Unknown Parties 2:2010cv01829 August 26.I are VERY. Bank of New York Mellon et al Share | Plaintiffs: Defendants: Van M Robinson and Polly R Robinson Bank of New York Mellon . MERSCORP Incorporated .justia.000 HEALTHY local and community banks who are equipped to handle the fallout. Loni says: August 12. etc.com/docket/arizona/azdce/2:2010cv01829/547491/ Robinson et al v. A subscription to PACER is required. Darla Sproles . 2010 Arizona District Court Phoenix Division Office [ Court Info ] Maricopa Frederick J Martone Real Property .” and in NO WAY should MERS be legitimized or the big banksters subsidized ANY LONGER. Why should homeowners not benefit just as much as the banks when it comes to this whole situation? My issue is I . Access this case on the Arizona District Court's Electronic Court Filings (ECF) System 1.) http://dockets. On Q Financial Incorporated . Mortgage Electronic Registration Systems Incorporated .Foreclosure 28:1331 Federal Question Plaintiff Case Number: Filed: Court: Office: County: Presiding Judge: Nature of Suit: Cause: Jurisdiction: Jury Demanded By: Access additional case information on PACER Use the links below to access additional information about this case on the US Court's PACER system. ReconTrust Company NA . Let Too Big To Fail FAIL! To see Robinson case below use this link: (Good complaint – MERs – securitization.
Reply 2. Just read any of the SEC filings these banks used when packaging the notes and they even state the mortgage was not collateral for the notes. If it has then the notes been canceled. credit default swaps and even TARP. I’m just an interested party looking in? . then the next thing is to make them show how they ended up with the note. insurance. Otherwise I and others like me are pathfinders. Mike says: May 3. 2010 at 11:18 PM Interesting opinion but I think you’re missing the boat on the whole deal. What else do you need? What do I know. The real issue is UCC 3 statutes and the separation of the note from the mortgage from inception. If the note has been securitized then the mortgage is no longer security for the note.can’t take speculation and opinion into court. If they can do that. Up until this point. You also make them prove the note hasn’t already been paid for through cross collateralization. I have the UCC3 however it would be helpful to have the SEC requirements and a copy of the Secutization and pooling agreement contract and (I could get that in discovery I suppose) and it would be super helpful to have case law in support of this position. the easy way to go is challenge the standing to file suit or foreclose. As has been pointed out the paperwork is no where in line. So make them get it right.
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