ANTI-MERS DECISION

Finally an ANTI-MERS DECISION

(Judge Nelva Gonzales Ramos)
The judge’s denial of MERS/BoA’s Motion to Dismiss in the case of Nueces County v.  MERS et al. is AMAZING!  Not because it’s novel, but because it actually follows the law!  It’s like Neil Garfield or Matt Weidner or David Rogers wrote it.  Or like I wrote it!   In fact, in my losing case of Kirby v. Bank of America (Southern District of Mississippi, 2012), I did use many of these same arguments–any sane, reasonable person would have!  You have got to read this decision!

Normally I might be tempted to highlight a sentence or two from the judge’s order and then mumble through my understanding of it, but with this brilliant order, all that needs to be done is to provide the blockbuster, bombshell quotes from it (for those who may not have the time or inclination to read it).  The quotes themselves are commentary enough, so here goes:

1. “MERS does not, however, hold any beneficial interest in the deeds of trust, and it is not a beneficiary of the deeds of trust.  It is merely an agent or nominee of the beneficiary.” (p. 14)

2. “By having itself designated as the “beneficiary under the security instrument” in the deeds of trust presented to the County Clerk for recordation in the County’s property records, knowing that it would be listed as the grantee of the security interest in the property, it appears that MERS asserted a legal right in the properties.  The Court concludes that, viewing the FAC’s allegations in the light most favorable to Plaintiff, one could plausibly infer that the recorded deeds of trust [naming MERS as "beneficiary"] constituted fraudulent liens or claims against real property or an interest in real property. ” (p. 14)

3.  “While Defendants may not have acted with the actual purpose or motive to cause harm to the County, the FAC alleges that through their creation of MERS, Defendants intended to establish their own recording system in order to avoid having to record transfers or assignments with the County and paying the associated filing fees. (FAC ¶¶ 2, 3, 17.)  Accordingly, one can reasonably infer from the allegations set forth in the FAC that Defendants were aware of the harmful effects the fraudulent liens would have on the County.  That is sufficient to establish intent.” (p. 16)

4. “Accordingly, the Court concludes that the FAC sets forth sufficient facts to give rise to a plausible inference that Defendants made false statements to the County regarding their rights under the deeds of trust and their relationships to the borrowers in the mortgages issued by MERS members.” (p. 22)

5. “County records as having a security interest in the properties.  Accordingly, viewing the allegations of the FAC in the light most favorable to Plaintiff, the Court concludes that one could plausibly infer that Defendants made material misrepresentations of fact to Plaintiff in the deeds of trust presented to the County for filing.” (p. 23)

I’m so excited I can hardly contain myself!  This judge gets it EXACTLY right!  She even defers to Carpenter v. Longan!  There is obviously a major schism in the Texas federal judiciary, and this judge–Nelva Gonzales Ramos (an Obama appointee)–comes down on exactly the right side!

Source:  http://libertyroadmedia.wordpress.com/2013/07/05/omg-this-anti-mers-decision-is-amazing/

STOP COURT FRAUD

Now is the time to stop these Fraudulent Courts and their minions. I do hope you watch and LISTEN CAREFULLY to what is being said on this video. There is NO JURISDICTION by the courts and their attorneys over you. They are a corporation and as such must follow the international laws of commerce. The UCC (Uniform Commercial Code).   Find out more.    This is from redressright.org and this is his youtube channel. Very knowledgeable fellow.




Source: We Have Been Duped!

FORGERIES in FORECLOSURES

FROM ODIN WILD HUNT: This was posted on Neil Garfield's site - I believe reposted from elsewhere.  But the information is good.

Editor’s Analysis: First of all hats off to April Charney, http://www.nakedcapitalism.com and Yves Smith for the article on Forgery (see link below) James M. Kelley as a forensic document examiner — outstanding work!

This is one of the places where the rubber meets the road, but before you start celebrating take a deep breath: proof of forgery will NOT necessarily stop delay or alter the foreclosure. That is why I start with questioning the monetary transactions before I introduce the document deficiencies, fabrications and forgeries.

You have to put yourself in the Judge’s seat (or more properly, bench). A simple example will suffice to make my point. Suppose I loaned you $100 and you didn’t pay it back the way we agreed. Later I sue you and produce a promissory note you know you never signed but it looks like your signature, but you’ve admitted you owe the $100 and you admit you defaulted. Under those circumstances your evidence of forgery might be excluded from evidence -– because it is already established you owe the money and defaulted. In fact it should be excluded because it is no longer relevant to the proceedings. The debt is not the note — and vica versa.

The note is only evidence of the debt and taking that out of the equation still leaves the admissions, presumptions and witnesses by which the authenticity of the debt and default have already been taken as agreed and irrefutable. Some people look askance as Judges who apply the rules of evidence and accuse them of stupidity or dishonesty. But the truth is the forged fabricated note is at most corroborative evidence of something that is no longer a material issue of fact in dispute. The Judge has little choice but to rule in favor of the forecloser at that point. Hence, we keep pounding on DENY AND DISCOVER.

If you are filing the lawsuit you should, along with the initial summons and and complaint, file whatever discovery requests you have at the same time which all amount to “who are you, what are you doing here, why are you seeking collection of this debt, and by what authority.

Admitting the debt, note, mortgage etc can be either direct (“I admit that”) or indirect/tacit (“I understand what you are saying Judge but there is ample evidence of skullduggery here”). In most cases, either one is enough, especially with a Judge who is already assuming that the bank wouldn’t be there if there was no debt, note and mortgage and the presence of a default.

The borrower, who knows they did get money on loan, knows they did sign papers and knows they didn’t pay, naturally assumes that it is pointless to deny the basic elements of the foreclosure — the debt between the borrower and the forecloser, the note, which is evidence of the debt, and the mortgage, assignments and other instruments used by the banks to get you pointed in the wrong direction. AND THAT is where the defense goes off the deep end every time there is a “bad” decision.

The Judge is going to be looking for admissions by the borrower (not the forecloser) because of a very natural presumption that at one time was a perfectly reasonable assumption — that the bank would not waste time and money enforcing a debt that didn’t exist and a note that was never valid, nor a mortgage that was never perfected.

And the Judge is going to see any avoidance of enforcement on the basis of paperwork as a tacit admission that the debt is real, the default is real, and the note and mortgage were properly executed under proper circumstances —- because that is what banks do! Maybe it isn’t “fair” but it is perfectly understandable why we encountered a mindset that treated borrowers as lunatics when they first came up with the notion that the paperwork was missing, lost, fabricated, forged, robo-signed etc.

The study by Katherine Ann Porter, the San Francisco study and the studies in Massachusetts and Maryland and Massachusetts all point to a credit bid being submitted at foreclosure auction by a party who wasn’t a creditor at all. The San Francisco study said 65% of the credit bidders were strangers to the transaction and strange is the word to use in court. Did it change anything? No!

So where does that leave you? In order to be able to show the relevance of the forgery or fabrication you must attack the debt itself. Where would I be if I sued you on the $100 loan, produced a fabricated, forged note and you DIDN’T admit the debt or the default. The burden falls back on me to prove I gave you the $100.

What if I didn’t give you the $100 but I know someone else did. That doesn’t give me standing to sue you because I am not injured party. Can any of you state with certainty that the loan money you received came from the originator disclosed on the TILA, settlement and closing documents? Probably not because the ONLY way you would know that is if you had seen the actual wire transfer receipt and the wire transfer instructions.

Thus if you don’t know that to be true — that the originator in your mortgage loan was funded by the originator and was not a table-funded loan (which accounts for about 95%-96% of all loans during the mortgage meltdown), why would you admit it, tacitly, directly or any other way?

As a defense posture the first rule is to deny that which you know is untrue and to deny based upon lack of information or deny based upon facts and theory that are contrary to the assertions of the forecloser.Deny the debt. THAT automatically means the note can’t be evidence of anything real, because the note refers to a loan between the originator and the borrower where the borrower unknowingly received the money from a third or fourth party (table funded loan, branded “predatory” by TILA and reg Z).

Your defense is simply “we don’t know these people and we don’t know the debt they are claiming. We were induced to sign papers that withheld vital information about the party with whom I was doing business and left me with corrupt title. The transaction referred to in the note, mortgage, assignments, allonges etc. was never completed. The fact that we received a loan from someone else does not empower this forecloser to enforce the debt of a third party with whom they have had no contact or privity.”

THEN HAMMER THEM WITH THE FORGERY BUT USE SOMEONE AS GOOD AS KELLEY TO DO IT. WATCH OUT FOR CHARLATANS WHO CAN CONVINCE YOU BUT NOT THE COURT. THUS THE DEFICIENT DOCUMENTS CORROBORATE YOUR MAIN DEFENSE RATHER THAN SERVE AS THE CORE OF IT.

Practice Pointer: At this point either opposing counsel or the Judge will ask some questions like who DID give the loan or what proof do you have. If you are at the stage of a motion to dismiss or motion for summary judgment, your answer should be, if you set up case correctly and you have outstanding discovery, that those are evidential questions that require production of witnesses, testimony, documents and cross examination. Since the present hearing is not a trial or evidential hearing and was not noticed as such you are unprepared to present the entire case.

The issues on a motion to dismiss are solely that of the pleadings. At a Motion for Summary Judgment, it is the pleadings plus an affidavit. Submit several affidavits and the Judge will have little choice but to deny the forecloser’s motion for summary judgment.

Attack their affidavit as not being on personal knowledge (voir dire) and if you are successful all that is left is YOUR motion for summary judgment and affidavits which leaves the Judge with little choice but to enter Summary Final Judgment in favor of the homeowner as to this forecloser.

http://www.nakedcapitalism.com/2013/02/expert-witnesses-starting-to-take-on-forgeries-in-foreclosures.html

Judge Rules Against Bank

Judge Rules Against Bank In Mortgage Modification Suit

 A recent ruling by a California appeals court clears the way for fraud charges against a lender that promised a loan modification but then foreclosed on the borrower.

The ruling throws into question the legality of hundreds of thousands of foreclosures.
Not only was the ruling a frontal assault on the empty promises made by servicers and banks, the case highlighted some despicable tactics often employed to force foreclosures.

Claudia Aceves, who originally sued U.S. Bank, NA in the Los Angeles County Superior Court, had taken out an $845,000 mortgage with Option One Mortgage Corporation. Option One later assigned the loan over to U.S. Bank.

The interest on Aceves’ adjustable rate note ratcheted up two years after it was entered into. By January 2008 she was falling behind on her payments. Shortly after March 26, 2008 when the loan’s servicer recorded a “Notice of Default and Election to Sell Under Deed of Trust,” Aceves filed for bankruptcy protection under chapter 7 of the Bankruptcy Code.

The bankruptcy filing imposed an automatic stay on the foreclosure proceedings.

After being offered financial help from her husband, Aceves converted her bankruptcy case from a chapter 7 to a chapter 13 case. Chapter 7, entitled “Liquidation,” would allow Aceves to discharge her debt on the home but not allow her to keep it. Chapter 13, entitled “Adjustment of Debts of an Individual with Regular Income,” has protections for homeowners that allows them to reinstate loan payments, pay arrearages, avoid foreclosure and keep their home.

U.S. Bank, upon learning of the original bankruptcy filing, filed a motion to lift the stay in order to execute a nonjudicial foreclosure and take the house back.

What happens next is indicative of the underhandedness of many servicers and banks.
Aceves’ bankruptcy attorney gets a letter from counsel to the loan’s servicer (American Home Mortgage Servicing, Inc.) that asks for permission to talk directly to Aceves to “explore Loss Mitigation possibilities.”  Aceves calls the servicer’s attorney because she wants a loan modification, which they are promising. But they tell her they can’t do anything or talk to her until their motion to lift the bankruptcy stay is granted.

So, Aceves doesn’t oppose the motion to lift the stay and further decides not to file the chapter 13 bankruptcy. All in the hopes that a modification would be negotiated.

On December 4, 2008 the stay is lifted. And, unbeknownst to Aceves, on December 9, 2008 U.S. Bank schedules the home for public auction one month later on January 9, 2009.

On December 10, 2008 Aceves sends in documents to American Home aiming to modify and reinstate the loan. Then on December 23, 2008 the servicer tells Aceves a “negotiator” will contact her on or before January 13, 2009.

Too bad for Aceves January 13, 2009 is going to be four days after her home is sold at auction. Which it is, with none other than U.S. Bank as the buyer.

But just to cover its promise to modify the loan, one day before the home is to be sold at auction the negotiator for American Home presents a unilateral offer to raise the loan balance from the original $845,000 to $965,926.22 and make the new monthly payments $7,200 as opposed to the original monthly payment amount of $4,857.09.

Aceves told them where to go.

She lost her home and sued. She lost when the Superior Court found that the defendants had met their obligations. The three-judge panel Appeals Court disagreed in its January 27, 2010 ruling.

The crux of the ruling, which in part relied on a decision in a previous case (Garcia v. World Savings, FSB) determined that “To be enforceable, a promise need only be ”’definite enough that a court can determine the scope of the duty.”’

Further illuminating its stance the Court said the point is, “simply whether U.S. Bank made and kept a promise to negotiate with Aceves, not whether the bank promised to make a loan, or more precisely, to modify a loan” is what matters.

As far as the servicer’s offer of a modification, the Appeals Court found that the promise to negotiate is “not based on a promise to make a unilateral offer but on a promise to negotiate in an attempt to reach a mutually agreeable loan modification.”

With all the unkept promises by banks and servicers to negotiate loan modifications that were never entertained, new litigation on top of all the foreclosure cases already being pursued is bound to cloud the future of real estate for the foreseeable future.

Source:  Timothy McCandless