Public Access to Law; Discipline for Foreclosure Pretender Defenders

To:

Professor Dale A. Whitman, Dean Emeritus
University of Missouri-Columbia Law School

Dear Professor Whitman:

I saw your article “Learning from the Mortgage Crisis” in a friend’s magazine.  I thought I’d write and ask you to send me a copy of the pdf file.  Will you send it to me, please, by return email?  Why haven’t you posted that article on your site?

In reading your UCC law journal article (April 2013) recommending a proper nationwide standard of electronic registration for mortgages and notes, I noted several issues which I believe warrant comment.

1.  I fully agree with you.  I don’t blame banks for creating MERS in order to reduce their costs related to recording loan security instruments with county clerks.  But the problems related to the musical chairs game with notes, the robosigning, the securitization, the phony bond ratings, the questionable assignments, the foreclosure plaintiffs who lack standing, and the note assignment after suing all beg for a standardized solution.  That system you recommend should also mandate notice from the court clerk of any lis pendens regarding a registered mortgage or deed of trust, and of any foreclosure complaint and of any related final judgment encumbering or freeing the mortgage.

2.  I doubt seriously that anyone but an idiot would destroy the note, and I believe none of the banks did.  I believe they stashed those notes in their warehouse file cabinets and did not want to risk their lost by giving handing them to the courts; furthermore, they wanted the freedom to use them commercially by assigning or handing them to others without the fetter of the court’s having possessions, SIMPLY BECAUSE of the UCC requirement that possession alone entitles enforcement.

From your footnote 16 about the article Naked Capitalism, FUBAR Mortgage Behavior; Florida Banks Destroyed Notes;  Others Never Transferred Them, Sept. 27, 2010, available at http://www.nakedcapitalism.com/2010/09/more-evidence-of-bank-fubar-mortgage-behavior-orida-banks-destroyed-notes-others-never-transferred-them.html.
3. I don’t believe the destroyed note allegation of the article because, in spite of Florida Statute 673.3091 permitting enforcement of the lost or destroyed note, we have the issue of admission of evidence in Florida courts.  I hope you will address it in a future commentary.

From Florida’s Evidence Code in Florida Statute 90.953:

90.953 Admissibility of duplicates.—A duplicate is admissible to the same extent as an original, unless:
(1) The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.1021, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
(2) A genuine question is raised about the authenticity of the original or any other document or writing.
(3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.

4.  If the court cannot admit the copy of the lost note into evidence, how does the note become a fact before the court so that the court can enforce it?  Well, how about this handy statute that allows re-establishment?

71.011 Reestablishment of papers, records, and files.—All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided.
(1) WHO MAY REESTABLISH.—Any person interested in the paper, file or record to be reestablished may reestablish it.
(2) VENUE.—If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires.
(3) REMEDY CONCURRENT.—Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner.
(4) EFFECT.—
(a) Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded.
(b) When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence to reestablish the deed if the deed has been so recorded for 20 years.
(5) COMPLAINT.—A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment.

Apparently, a Plaintiff can re-establish the lost note and then enforce it so long as he indemnifies the Defendant against some other party’s effort to enforce the original note.  Unfortunately, not many plaintiffs claiming to have lost the note have reestablished it in order to admit it into evidence.  In fact, I don’t know of any, but I have imperfect access to court records for conducting a research into the question.

FYI, I am not an attorney and have not attended law school.  I’d love to attend, but it isn’t likely to produce any benefit at this stage of my life except to satisfy my curiosity.  I study law issues as an avocation.

Since 2007 I have focused on Mortgage issues.  I started by inquiring into the means to beat foreclosures.  Eventually I abandoned that interest in favor of a principle I call “Mortgage Attack.”  I have fleshed out the principle in my web site http://MortgageAttack.com.  As I see it, a borrower who breached a valid note cannot defeat a mortgage foreclosure generally.  However, a colossal foreclosure defense legal industry has arisen by which attorneys deceive foreclosure victims with a contrary suggestion.   In actuality, they bilk their clients out of, for example, $2500 retainer plus $500 per month “for as long as we can keep you in the house.”  In my opinion, all those attorneys belong in prison for fraud.  To begin with, they KNOW the client will lose the house unless they con the client into a loan modification or short sale.  And then they continue using the same tired and frivolous arguments in the foreclosure pretense defense which they know will fail – complaining about statute of limitation tolling, robosigning, vapor money, no original note, conditions precedent, etc. They use copy-machine pleadings and motions in a dilatory effort to make it seem that they earn their fees.  And worst of all they NEVER bother examining the mortgage transaction documents for evidence of borrower injury by the lender and lender’s agents and associates.

If I came to you and said “Professor, I just got accused of breaching the note, and now they want to take my house.  Will you help me please?” what would you suggest?  Wouldn’t you say something like this:

Well did you take out a loan?  Did you sign the papers?  Did you breach the note by failing to pay timely?  Let me see those papers, and tell me a little about the events surrounding that loan.  Let me see the appraisal and original loan application, and HUD-1 report, and your TILA notices.?”

Wouldn’t you interview the supplicant to determine whether any shady activities happened?  Wouldn’t you verify that the appraiser, mortgage broker, and lender had proper licenses and operated from offices registered with the Secretary of State? Wouldn’t you ascertain whether the broker promised one set of terms, but hoodwinked the borrower into signing papers with a different set of terms.  Wouldn’t you look for broker lies on the loan application that made the borrower seem more than actually qualified?  Wouldn’t you look at the interest rates and origination fees to determine whether they exceeded standards?  Wouldn’t you look for patterns of misbehavior that might justify offsets even in the event the statute of limitations had tolled on the behaviors? Wouldn’t you look for evidence of violations of the FCRA, FDCPA, TILA, RESPA, HOEPA, ECOA, etc? Wouldn’t you look for contract breaches, fraud and other tortious conduct, legal errors, and regulatory violations that injured the borrower?

Normal foreclosure pretender defender attorneys might give those efforts lip service, but virtually never do them. They don’t do them because they don’t know how, a byproduct of lack of intimate familiarity with the regulations and tort/contract/mortgage law, and because of laziness and greed.  A competent mortgage examination team might spend 40 to 60 hours on such a project.  A typical. lawyer would want to charge a broke foreclosure victim $12,000 to $18,000 for the service.  As a result, the lawyer would have to get out of the business of foreclosure defense.

But, that is exactly what it will take for lawyers actually to give their foreclosure victim clients any hope of convincing the lender to modify the loan to the borrower’s benefit, or of convincing the court to order set-offs from the debt or compensatory and punitive damages to salve the borrower’s injuries.

Such winning awards do happen, but they are exceedingly rare.  And we shall never know how many such cases settle out of court because the borrower managed to convince the lender to avoid the related litigation.

Here’s an anomalous case for your reference:

http://mortgageattack.com/2014/07/10/brown-v-quicken-loans-shows-how-to-punish-abusive-mortgagees/

In that small article, I provided a link to all of the case documents I could find on the web.  You might find more using your WestLaw resources.  I have expected a final resolution of the case for several days.  The appraiser settled for $700K, and the trial court ordered Quicken Loans to pay nearly $5 million in damages, fees, and costs.  Quicken appealed.  Maybe you can find out when the West Virginia Supreme Court will issue its final opinion.

I consider Brown v Quicken Loans the “Poster Child” Mortgage Attack methodology case from which all pretender defender lawyers should learn.  But I estimate that lenders and their agents and associates have injured or cheated at least 80%, and upwards of 95% of mortgage borrowers in the past 15 years.  Precious few attorneys hold them accountable for that maleficent behavior.  And let’s face reality.  Brown’s lawyer took the case on contingency because he knew the judge and his sentiments well and knew his client had suffered extraordinary injuries, and he knew the client as decent person.  Few lawyers will take any foreclosure case on contingency until after having made it ready for trial.  That means the injured borrower must handle the case personally, if anyone handles it at all.

And this brings me to my final point.

You have wisely suggested a dramatic and electronic improvement to the loan registration problem.  But we have two far worse problems:

  1. Bad ethics in the foreclosure “Pretense Defense” attorney business model – it should be outlawed.
  2. Lack of availability of online resources for pro se litigants who should not need a lawyer for “mortgage attack,” coupled with the exorbitant cost imposed by the legal services monopoly.

I know of no cure for the bad ethics other than widespread class actions against foreclosure pretender defenders and State Attorneys attacking them for fraud.  Any attorney commits fraud by re-using frivolous legal arguments that he knows will lose.  Obviously, judges will not punish them, or they already would have.  And just as obviously, law school ethics professors have had little impact on the greed factor that drives attorneys to cheat their clients .

People would find it easier to prevail against crooked banks if they could afford an aggressive, competent attorney. But people cannot afford them generally because the attorneys enjoy a monopoly on legal services. Unauthorized Practice of Law statutes (UPL is a felony in Florida) have made possible that legal services monopoly.   But the law does not protect people against incompetent, lazy, or crooked attorneys. Legal writers have recognized this as an outrage for decades:

And of course many people would fare well in court on their own if they only learned the basics of litigation, civil procedure, and evidence code in high school.  Unfortunately, it has become exceedingly difficult to obtain a decent legal education in high school, college, or on one’s own because of the practice of hiding the law or making it inordinately expensive to discover.  Yes, we have the laws.  But government has posted them on a sign 20 feet in the air, and only attorneys have the ladder needed to read that sign.  By this I mean the actual law has become out of reach, not because people cannot find it, but because of the skill they need to locate the relevant part – court rulings.

Good attorneys support their legal arguments in their court filings with case law.  They generally find that case law using a legal search engine to which they subscribe for a monthly fee.  But the filings that resulted in that case law sit in a clerk’s file cabinet in courts across America, or in law books in law libraries that most people simply cannot access.

And that law which people can access suffers from exiguity or poor organization. In Florida only parties to the case and their lawyers can access the electronic filings in the case.  This seem more than a little strange in light of the reality that the constitution mandates that nearly all proceedings remain open to the public.

Thank God for Google Scholar and Google Books.  Google has made many old law books available, and many if not most of the appellate opinions across America available to the public without requiring that people browse the court sites.  Google has done the job that rightly belongs to government, particularly the courts, of making the law available and visible to, and through the search engine somewhat well-organized for, the masses.

I realize that you personally can do nothing about the terrible ethics in the mortgage foreclosure and foreclosure defense industry.

But perhaps you can propose an electronic means of solving the problem of relative unavailability of the law to non-attorneys.  Some federally coordinated electronic repository should exist akin to PACER, but free, and fully searchable by topic, party, judge, attorney, clerk, and bailiff, nationwide, making all court dockets and filings, from traffic and all other administrative courts, county and other trial courts, and appellate courts, available to the public, particularly to Americans and students in public and private schools.  And that access should cost the public nothing, for the law and the documents leading up to it, should become and remain free for all to read at home through internet access.

And need only one good reason for this.  People can easily commit a vast array of “infractions” and crimes without ever leaving home, and become most susceptible to harassment and arrest for alleged infractions and criminal acts upon setting foot outside the home.  It seems only fair that people should have the benefit of finding, reading, learning, and knowing the law before venturing out of the privacy of one’s home, if any such privacy remains.

Sincerely,

Bob Hurt

Why Mortgagors Lack Standing to Dispute or Enforce Note Assignment or PSA

These two opinions (excerpts from the list below) show why securitization and assignment arguments MUST fail in a foreclosure dispute.  Borrower suffered no injury, has no interest in, and never became a party to the Pooling and Servicing Agreement (PSA) or any assignment of the note.  So, the borrower has no standing to dispute or enforce the assignment or PSA.

  1. Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.).
  2. Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”).

Cases Where Homeowners Lost by Arguing Securitization

  1. Rodenhurst v. Bank of Am., 773 F. Supp. 2d 886, 899 (D. Haw. 2011) (“The overwhelming authority does not support a [claim] based upon improper securitization.”) “[S]ince the securitization merely creates a separate contract, distinct from plaintiffs’ debt obligations under the Note and does not change the relationship of the parties in any way, plaintiffs’ claims arising out of securitization fail.” Lamb V. Mers, Inc., 2011 WL 5827813, *6 (W.D. Wash. 2011) (citing cases);
  2. Bhatti, 2011 WL 6300229, *5 (citing cases);
  3. In re Veal, 450 B.R. at 912 (“[Plaintiffs] should not care who actually owns the Note-and it is thus irrelevant whether the Note has been fractionalized or securitized-so long as they do know who they should pay.”);
  4. Horvath v. Bank of NY, N.A., 641 F.3d 617, 626 n.4 (4th Cir. 2011) (securitization irrelevant to debt);
  5. Commonwealth Prop. Advocates, LLC v. MERS, 263 P.3d 397, 401-02 (Utah Ct. App. 2011) (securitization has no effect on debt);
  6. Henkels v. J.P. Morgan Chase, 2011 WL 2357874, at *7 (D.Ariz. June 14, 2011) (denying the plaintiff’s claim for unauthorized securitization of his loan because he “cited no authority for the assertion that securitization has had any impact on [his] obligations under the loan, and district courts in Arizona have rejected similar arguments”);
  7. Johnson v. Homecomings Financial, 2011 WL 4373975, at *7 (S.D.Cal. Sep.20, 2011) (refusing to recognize the “discredited theory” that a deed of trust ” ‘split’ from the note through securitization, render[s] the note unenforceable”);
  8. Frame v. Cal-W. Reconveyance Corp., 2011 WL 3876012, *10 (D. Ariz. 2011) (granting motion to dismiss: “Plaintiff’s allegations of promissory note destruction and securitization are speculative and unsupported. Plaintiff has cited no authority for his assertions that securitization has any impact on his obligations under the loan”).”The Court also rejects Plaintiffs’ contention that securitization in general somehow gives rise to a cause of action – Plaintiffs point to no law or provision in the mortgage preventing this practice, and cite to no law indicating that securitization can be the basis of a cause of action. Indeed, courts have uniformly rejected the argument that securitization of a mortgage loan provides the mortgagor a cause of action.”
  9. See Joyner V. Bank Of Am. Home Loans, No. 2:09-CV-2406-RCJ-RJJ, 2010 WL 2953969, at *2 (D. Nev. July 26, 2010) (rejecting breach of contract claim based on securitization of loan);
  10. Haskins V. Moynihan, No. CV-10-1000-PHX-GMS, 2010 WL 2691562, at *2 (D. Ariz. July 6, 2010) (rejecting claims based on securitization because plaintiffs could point to no law indicating that securitization of a mortgage is unlawful, and “[p]laintiffs fail to set forth facts suggesting that Defendants ever indicated that they would not bundle or sell the note in conjunction with the sale of mortgage-backed securities”);
  11. Lariviere V. Bank Of N.Y. As Tr., Civ. No. 9-515-P-S, 2010 WL 2399583, at *4 (D. Me. May 7, 2010) (“Many people in this country are dissatisfied and upset by [the securitization] process, but it does not mean that the [plaintiffs] have stated legally cognizable claims against these defendants in their amended complaint.”);
  12. Upperman V. Deutsche Bank Nat’l Trust Co., No. 01:10-cv-149, 2010 WL 1610414, at *3 (E.D. Va. Apr. 16, 2010) (rejecting claims because they are based on an “erroneous legal theory that the securitization of a mortgage loan renders a note and corresponding security interest unenforceable and unsecured”);
  13. Silvas V. Gmac Mortg., Llc, No. CV-09-265-PHX-GMS, 2009 WL 4573234, at *5 (D. Ariz. Dec. 1, 2009) (rejecting a claim that a lending institution breached a loan agreement by securitizing and cross-collateralizing a borrower’s loan). The overwhelming authority does not support a cause of action based upon improper securitization. Accordingly, the Court concludes that Plaintiffs cannot maintain a claim that “improper restrictions resulting from securitization leaves the note and mortgage unenforceable);
  14. Summers V. Pennymac Corp. (N.D.Tex. 11-28-2012) (any securitization of Plaintiffs’ Note did not affect their obligations under the Note or PennyMac’s authority as mortgagee to enforce the Note and foreclose on the property if Plaintiffs defaulted).;
  15. Nguyen V. Jp Morgan Chase Bank (N.D.Cal. 10-17-2012) (“Numerous courts have recognized that a defendant bank does not lose its ability to enforce the terms of its deed of trust simply because the loan is assigned to a trust pool. In fact, ‘securitization merely creates a separate contract, distinct from [p]laintiffs[‘] debt obligations under the note, and does not change the relationship of the parties in any way. Therefore, such an argument would fail as a matter of law”);
  16. Flores v. Deutsche Bank Nat’l Trust Co., 2010 WL 2719848, at *4 (D. Md. July 7, 2010), the borrower argued that his lender “already recovered for [the borrower’s] default on her mortgage payments, because various ‘credit enhancement policies,’” such as “a credit default swap or default insurance,” “compensated the injured parties in full.” The court rejected the argument, explaining that the fact that a “mortgage may have been combined with many others into a securitized pool on which a credit default swap, or some other insuring-financial product, was purchased, does not absolve [the borrower] of responsibility for the Note.” Id. at *5;
  17. see also Fourness v. Mortg. Elec. Registration Sys., 2010 WL 5071049, at *2 (D. Nev. Dec. 6, 2010) (dismissing claim that borrowers’ obligations were discharged where “the investors of the mortgage backed securities were paid as a result of . . . credit default swaps and/or federal bailout funds);
  18. Warren v. Sierra Pac. Mortg. Servs., 2010 WL 4716760, at *3 (D. Ariz. Nov. 15, 2010) (“Plaintiffs’ claims regarding the impact of any possible credit default swap on their obligations under the loan . . . do not provide a basis for a claim for relief”).
  19. Welk v. GMAC Mortg., LLC., 850 F. Supp. 2d 976 (D. Minn., 2012) (“At the end of the day, then, most of what Butler offers is smoke and mirrors. Butler’s fundamental claim that his clients’ mortgages are invalid and that the mortgagees cannot foreclose because they do not hold the notes is utterly frivolous.);
  20. Vanderhoof v. Deutsche Bank Nat’l Trust (E.D. Mich., 2013) (internal citations omitted) (“s]ecuritization” does not impact the foreclosure. This Court has previously rejected an attempt to assert a claim based upon the securitization of a mortgage loan. Further, MERS acts as nominee for both the originating lender and its successors and assigns. Therefore, the mortgage and note are not split when the note is sold.”);
  21. Chan Tang v. Bank of America, N.A. (C.D. Cal., 2012) (internal citations omitted) (“Plaintiffs’ contention that the securitization of their mortgage somehow affects Defendants’ rights to foreclose is likewise meritless. Plaintiffs have identified no authority supporting their position that securitization voids the power of sale contained in a deed of trust. Other courts have dismissed similar arguments. Thus, the claim that Defendants lack the authority to foreclose because the Tangs’ mortgage was pooled into a security instrument is Dismissed With Prejudice.);
  22. Wells v. BAC Home Loans Servicing, L.P., 2011 WL 2163987, *2 (W.D. Tex. Apr. 26, 2011) (This claim—colloquially called the “show-me-the-note” theory— began circulating in courts across the country in 2009. Advocates of this theory believe that only the holder of the original wet-ink signature note has the lawful power to initiate a non-judicial foreclosure. The courts, however, have roundly rejected this theory and dismissed the claims, because foreclosure statutes simply do not require possession or production of the original note. The “show me the note” theory fares no better under Texas law.);
  23. Maynard v. Wells Fargo Bank, N.A. (S.D. Cal., 2013) (“Plaintiffs also allege that they conducted a Securitization Audit of Plaintiffs’ chain of title and Wachovia’s PSA, and as a result, determined that Plaintiffs’ Note and DOT were not properly conveyed into the Wells Fargo Trust on or before July 29, 2004, the closing date listed in the Trust Agreement. (Id. at ¶ 34.)… To the extent Plaintiffs challenge the validity of the securitization of the Loan because Wells Fargo and U.S. Bank failed to comply with the terms of the PSA or the Trust Agreement, Plaintiffs are not investors of the Loan, nor are Plaintiffs parties to the PSA or Trust Agreement. Therefore, as many courts have already held, Plaintiffs lack standing to challenge the validity of the securitization of the Loan…Furthermore, although Plaintiffs contend they have standing to challenge the validity of the Assignment because they were parties to the DOT with the original lender (Wells Fargo), this argument also fails. (Doc. No. 49 at 11-12.);
  24. Jenkins v. JP Morgan Chase Bank, N.A., 216 Cal. App. 4th 497, 511-13, 156 Cal. Rptr. 3d 912 (Cal. Ct. App. 2013) (“[E]ven if any subsequent transfers of the promissory note were invalid, [the borrower] is not the victim of such invalid transfers because her obligations under the note remained unchanged.”). As stated above, these exact arguments have been dismissed by countless other courts in this circuit. Accordingly, Plaintiffs’ contentions that the Assignment is void due to a failure in the securitization process fails.”);
  25. Demilio v. Citizens Home Loans, Inc. (M.D. Ga., 2013) (“Frankly, the Court is astonished by Plaintiff’s audacity… Plaintiff requires the Court to scour a poorly-copied, 45-page “Certified Forensic Loan Audit” in an attempt to discern the basic facts of his case. This alone would be sufficient for dismissal. However, the Court is equally concerned by Plaintiff’s attempt to incorporate such an “audit,” which is more than likely the product of “charlatans who prey upon people in economically dire situation,”… As one bankruptcy judge bluntly explained, “[the Court] is quite confident there is no such thing as a ‘Certified Forensic Loan Audit’ or a ‘certified forensic auditor…. The Court will not, in good conscience, consider any facts recited by such a questionable authority.”);
  26. Leong v. JPMorgan Chase (D. Nev., 2013) (“Plaintiff insists that Defendant failed to provide the original note. The only possibly relevant Nevada statute requiring the presentation of the original note or a certified copy is at a Foreclosure Mediation. Nev. Rev. Stat. § 107.086(4). Moreover, the Court treats copies the same as originals: “a duplicate is admissible to the same extent as an original.” Nev. Rev. Stat. § 52.245. Defendants correctly point out that Plaintiff fails to cite to any authority that requires Defendants to produce the original Note, and Defendants additionally provide non-binding legal authority to the contrary. As such, this cause of action is dismissed with prejudice.’);
  27. Rivac v. NDEX W. LLC (N.D. Cal., 2013) (This court is persuaded by the “majority position” of courts within this district, which is that Glaski is unpersuasive, and that “plaintiffs lack standing to challenge noncompliance with a PSA in securitization unless they are parties to the PSA or third party beneficiaries of the PSA.” Shkolnikov v. JPMorgan Chase Bank, 2012 WL 6553988 at *13 (N.D. Cal. Dec. 14, 2012);
  28. see also, e.g., Zapata v. Wells Fargo Bank, N.A., 2013 WL 6491377 at *2 (N.D. Cal. Dec. 10, 2013); Apostol v. CitiMortgage, Inc., 2013 WL 6328256 at *7 (N.D. Cal. Nov. 21, 2013); Dahnken v. Wells Fargo Bank, N.A., 2013 WL 5979356 at *2 (N.D. Cal. Nov. 8, 2013);
  29. Almutarreb v. Bank of New York Trust Co., N.A., 2012 WL 4371410 at *2 (N.D. Cal. Sept. 24, 2012);
  30. Rivac v. NDEX W. LLC (N.D. Cal., 2013) (District courts have consistently found that conclusory allegations of robo-signing are insufficient to state a claim, absent some factual support. See Baldoza v. Bank of America, N.A., 2013 WL 978268 at *13 (N.D. Cal. Mar. 12, 2013);
  31. see also Chan Tang v. Bank of America, N.A., 2012 WL 960373 at *10-11 (C.D. Cal. March 19, 2012);
  32. Sohal v. Fed. Home Loan Mortg. Corp., 2011 WL 3842195 at *5 (N.D. Cal. Aug. 30, 2011);
  33. Chua v. IB Property Holdings, LLC, 2011 WL 3322884 at *2 (C.D. Cal. Aug. 1, 2011))…Further, where a plaintiff alleges that a document is void due to robo-signing, yet does not contest the validity of the underlying debt, and is not a party to the assignment, the plaintiff does not have standing to contest the alleged fraudulent transfer.
  34. See Elliott v. Mortgage Electronic Registration Systems, Inc., 2013 WL 1820904 at *2 (N.D. Cal. Apr. 30, 2013);
  35. Javaheri v. JPMorgan Chase Bank N.A., 2012 WL 3426278 at *6 (C.D. Cal. Aug. 13, 2012). (Plaintiffs here do not dispute that they defaulted on the loan payments, and the robo-signing allegations are without effect on the validity of the foreclosure process);
  36. Deutsche Bank Nat’l Trust Co. v. Tibbs, 2014 WL 280365, at *5 (M.D. Tenn. Jan. 24, 2014) (“[a] Deed of Trust need not be separately assigned so that the holder may enforce the note; as goes the note, so goes the Deed of Trust.’”)

Fight the Right Battle to Cure Your Mortgage Crisis

How to Solve Mortgage and Foreclosure Woes

Do you have an underwater mortgage (you owe more than the value of the property)?

Do you face foreclosure?

You can solve those problems with relative ease and minimize damage to your credit rating if you follow the below decision tree.

You have two battles to fight in the war against the bank over your mortgage.

1.  Foreclosure Defense –  On one side of the hill you have the foreclosure.  If you fight the foreclosure battle, you always lose because of several factors – you signed the note and mortgage, failed to pay, and must forfeit the collateral.

2.  Mortgage Attack – On the other you have the mortgage itself.  When you fight the mortgage (challenge its validity), you can get the loan balance reduced (a “cram-down” loan mod) or get financial compensation or the house free and clear IF you find sufficient causes of action and prosecute them effectively.  The mortgage examination  finds those causes of action.  The examination report shows the causes of action so you can point them out to the bank or judge.

It’s that simple.

Now you face a variety of courses of action depending on your financial condition and the mortgage exam results:

Mortgage Examination Decision Tree

  1. If you are broke
    1. go to Minimize Loss
  2. Else (you are not broke)
    1. get the mortgage examined
    2. If the exam shows causes of action
      1. Negotiate settlement with lender (may need to hire lawyer for $1000)
      2. If you can accept the settlement
        1. embrace the settlement
        2. go to Enjoy Life
      3. else (settlement unacceptable)
        1. Sue lender for causes of action or file counter/cross claim
        2. embrace the result
        3. go to Enjoy Life
    3. else (no causes of action)
      1. go to Minimize Loss
  3. Minimize Loss:
    1. Do Short Sale, Deed in Lieu, or beneficial Loan Mod
    2. go to Enjoy Life
  4. Enjoy Life:
    1. Live happily ever after

I imagine you signed a note and mortgage in which you admitted receiving a loan, having seisen (possession) of the estate, and conveying the estate to the mortgagee for purposes of the mortgage.  Article I Section 10 of the Florida Constitution forbids any law from impairing the obligation of contracts (like the note and mortgage) and Section 21 grants injured persons (including banks) the right to use the courts for redress and justice.  You must forfeit the house for defaulting on the note.  You might drag out the process through legal shenanigans, but I guess you will lose the house in the end at great expense to your fortune and peace of mind…

Unless you can prove that the lender or lender’s agents injured you first.

The key to saving a house from foreclosure AND obtaining financial compensation lies in a comprehensive, competent mortgage examination, and negotiating with or suing the originating lender for the related causes of actions.  If the exam report reveals tortious conduct, legal errors, or contract breaches underlying the mortgage loan, those will provide a measure of opportunity to hammer the lender into a settlement.  Otherwise you don’t negotiate from a position of power, and you lose.  Done right, settling or suing stops the foreclosure, of course.

I know only one mortgage examiner with any degree of competence.  He does not negotiate on price, period.  You fill in a non-disclosure agreement and a questionnaire.  You scan and zip them and all your mortgage and foreclosure related documents (plus loan app and appraisal) and upload the file to the examiner.  He invoices you by PayPal.  You pay with Credit Card or PayPal account.  7 business days later you receive the report.  If it shows causes of action (red ink), you or your attorney negotiate settlement with the originating lender and plaintiff.  If you like the settlement, you settle.  If you don’t, you hire another attorney (fee or contingency) and sue.  The process might drag out a couple of years, but you will probably win (just like the mortgagee wins foreclosures).

  • Click the Contact menu item on the Mortgage Attack web site.
  • Email a request for the Non-Disclosure and Services Agreement, and the  QUESTIONNAIRE.
  • When you receive them, fill them in and execute the agreement.
  • Scan those with all mortgage and foreclosure related documents (closing docs plus appraisal, loan application, etc.) and compress them in a ZIP archive file.
  • Contact Mortgage Attack again for an explanation of how to send the archive file.  You will receive necessary details.
  • Upload the archive to the location provided.  The examination firm will invoice you.  Pay the fee, then receive the report in 7 business days
  • Settle or sue for the causes of action in the report, or (if no causes) walk from the  house with short sale, deed in lieu, keys for cash, etc.

Some gentle reminders…

Contact me by phone (727 669 5511) or Email for further details. I’ll put you in touch with the Chief Examiner after I have answered all your questions.

Yes, you may distribute this article Far and Wide.

Mort Gezzam photo
Mort Gezzam

Brown v Quicken Loans Shows How to Punish Abusive Mortgagees

Here’s Proof that A Talented Attorney Can Beat the Stuffing out of a Crooked Mortgage Lender

Okay to distribute this freely.

THE BEAUTY OF BROWN V QUICKEN LOANS

The outcome of the Brown v Quicken Loans case gives hope to all mortgage victims and should embarrass all Foreclosure Pretense Defense Attorneys.  This compilation  shows the public and the legal community HOW TO BEAT THE ABUSIVE MORTGAGE LENDER and obtain a nearly $5 million judgment.  I challenge every Mortgagor to READ the above-linked document COMPLETELY.

https://archive.org/details/BrownVQuickenLoansOverviewAndCaseFiles

Hats off to Jim Bordas and Jason Causey of Bordas & Bordas Law firm, Wheeling WV, for engineering the defeat of Quicken Loans and using the LAW to bludgeon them into submission.  I expect the final opinion in Quicken’s second appeal from the WV Supreme Court soon.

THE KEY TO WINNING – ATTACK THE MORTGAGE, NOT THE FORECLOSURE.

How did the Bordas team win?  They examined the mortgage and discovered a horror story of criminal and civil abuses by lender Quicken Loans.  Quicken made the loan so toxic they couldn’t sell or securitize it.

Quicken refused to offer Brown a reasonable settlement, so Bordas sued, and won a whopping $2+ million judgment.  Quicken appealed, the Supreme Court of WV remanded, the trial court upped the judgment to nearly $5 million.  Quicken appealed again, and the Supreme Court of WV will soon end the case with a final opinion against Quicken.

What lesson shall we learn from this?  Just this… If you face foreclosure, you need a comprehensive mortgage examination to prove the causes of action against the lender, and you need a lawyer willing and able to attack the mortgage, not merely defend against the foreclosure.

If your lawyer won’t seek and find the causes of action underlying your mortgage and then attack the lender on that basis, you need to FIRE that attorney.  Don’t rest until you have found a competent litigator like Jim Bordas.

LEGAL MALPRACTICE LAWSUIT OPPORTUNITIES FOR FORECLOSURE VICTIMS

If you have already lost your home to foreclosure AND you had a lawyer helping you who FAILED to seek causes of action or to attack on that basis, you may have a valid legal malpractice claim against that attorney. Call me at 727 669 5511 to discuss your issues.

STEP-BY-STEP PLAN FOR COMING OUT AHEAD

In order to save your home from foreclosure, or become able to negotiate a cram-down of the loan balance (and other favorable terms), or to sue the lender for injuring you, you must do one thing first:

  1. HIRE A COMPETENT MORTGAGE EXAMINER OR ATTORNEY to examine your mortgage and find all the causes of action.

Of course, a good mortgage examiner will charge you a fraction of what the lawyer will charge, IF you can find an examiner or lawyer with the requisite competence.  Which worries me.  Which is why I have gone to the trouble of writing this message.

Read http://MortgageAttack.com then call 727 669 5511 for more info.  I know the only competent professional mortgage examiner in America.

What?  You want to know steps 2 and 3?  Okay, I’ll give you the other steps…

  1. If the examination report reveals causes of action (torts, breaches, legal errors) against the lender or lender’s agents (title company,  mortgage broker, appraiser, servicer)…
    1. Notify the servicer and then attempt to negotiate a settlement.  I suggest finding a “CLOSER” type of lawyer to negotiate for you.  I suggest a “loan mod” type of settlement where the lender lowers the balance to the present market value, gives a favorable fixed interest rate, sets the term for 30 years, no prepayment penalty, assumable, no balloon, forgive arrears and legal fees/costs.  If this fails…
    2. Sue via complaint, counter complaint, cross complaint as necessary.  I suggest hiring a COMPETENT lawyer (not a foreclosure pretender defender) for this purpose.  If possible, find one to take your case on contingency.  The lawyer will use the causes of action from the mortgage examination report to formulate the pleading.
    3. Go to next step if you have no money or no causes of action.
  2. DO NOT let your home go to foreclosure final judgment.  If you do, it will haunt your credit record for 10 years AND (depending on your state) leave you owing a huge deficiency judgment when the auction does not bring enough money to discharge your debt.  Instead, try to work with the lender to do one of these:
    1. Short-Sale:  Bank agrees that you may sell the house at a discounted price in order to end the foreclosure, and hand over all the proceeds from the sale to the bank.  This imposes some work and stress on you, but if you have equity in the house (it has higher resale value than you owe on the mortgage note), this should be your first choice
    2. Keys-for-Cash:  Bank pays you cash ($2,000 to $20,000, depending on the value of the home) to move out, leave the home broom clean, and deed the property to the bank.   This can save a huge litigation cost for the bank, and make leaving the property less stressful for you.  Sometimes a mortgage examination can reveal weak causes of action that can pressure the bank to give you a Keys-for-Cash deal.
    3. Deed-in-Lieu-of-Foreclosure:  Same as Keys-for-Cash, except the bank gives you no cash.

TAKE THE RIGHT ACTION – CONTACT ME NOW

Okay, I have given you the proof that you can beat your abusive lender, and I have shown you the strategic plan for doing so.  If you simply refuse to do what I have outlined above, then you really deserve to lose your home to foreclosure, or to make underwater loan payments.  But if you feel READY TO ACT SENSIBLY, contact me immediately for help.

And if you don’t need help, SOMEBODY you know DOES.  Pass on this message and encourage your friends, associates, family members, loved ones to call me or write me for help.  And send them to http://MortgageAttack.com for an education on the issues.

No, I have no authorization to practice law or give legal advice, so I refrain from both.  But I’ll discuss the academic and strategic business aspects of your situation as necessary.

Yes, if you fit into the category of “Foreclosure Pretender Defender,”  you can contact me too, and I’ll help you the best I can.  Believe it or not, training for kool-aid drinkers like you has become available.  Sorry, no CLE credits.

AND… I don’t charge money for giving business guidance.  So, what do you have to lose?  Give me a call.  727 669 5511

Mort Gezzam photo
Mort Gezzam

Mortgage-Related Laws, Regs, Rules, Cases

Whether or not a person can afford an attorney, it makes good sense to know the law, rules, regulations related to the case, and to know how and where to find case law.  OBVIOUSLY, you should go to a law library or consult an attorney if you can find a competent one willing to fight for you and with some kind of proven track record.

It also makes sense to have a subscription to prepaid legal service like Legal Shield so you can talk to a lawyer inexpensively about your rights and options.

Unfortunately I have learned better than to trust an attorney to develop a sound strategy or to manage a case efficiently  or to advocate my cause aggressively.  In the end YOU are responsible for winning or losing your case, and YOU suffer (the lawyer doesn’t) if you lose your case.   So, you need to keep your “thumb on the pulse” of the case at all times, to keep the lawyer “honest” so to speak, particularly if you have had the sad misfortune of hiring a foreclosure pretender defender (don’t make me name names).

In order to remain aware and capable, you need to learn the law and become disposed to using it.  And you should learn about litigation practice   – rules of procedure and evidence.  I have collected some links to federal and Florida laws, and legal research sites.  Enjoy.

Federal mortgage related Law/Regulations

ConsumerFinancialProtectionBureau Chapter X

  • Equity skimming on HUD property or VA loan property a Federal Crime – 12 USC 1709-2
12 USC 1709-2
Whoever, with intent to defraud, willfully engages in a pattern or practice of—
(1) purchasing one- to four-family dwellings (including condominiums and cooperatives) which are subject to a loan in default at time of purchase or in default within one year subsequent to the purchase and the loan is secured by a mortgage or deed of trust insured or held by the Secretary of Housing and Urban Development or guaranteed by the Department of Veterans Affairs, or the loan is made by the Department of Veterans Affairs,
(2) failing to make payments under the mortgage or deed of trust as the payments become due, regardless of whether the purchaser is obligated on the loan, and
(3) applying or authorizing the application of rents from such dwellings for his own use,
shall be fined not more than $250,000 or imprisoned not more than 5 years, or both. This section shall apply to a purchaser of such a dwelling, or a beneficial owner under any business organization or trust purchasing such dwelling, or to an officer, director, or agent of any such purchaser. Nothing in this section shall apply to the purchaser of only one such dwelling.

Florida Mortgage Related Civil Litigation

Florida Evidence code Chapter 90
Witnesses, Records, Documents Code Chapter 92
Civil Practice
Rules of Civil procedure and Judicial Admin – http://floridabar.org
Go to Florida Judicial Circuit web site to find local court rules and administrative orders
Florida Code of judicial conduct
Oath of Admission to the Florida Bar
Rules regulating Florida Bar

Florida Consumer Collection Practices Act
Article III Chapter 673 and IX Chapter 679 UCC
marketable titles Chapter 712
Foreclosure Chapter 702
Florida Equity Skimming Chapter 697,

Books:

Trawick’s Florida Practice and Procedure
Florida Causes of Action
Florida Evidence Code with Objections
https://pushlegal.com/ online/phone law, rules, etc $1 per book per month rent.

Cheap legal research

http://www.stetson.edu/law/library/ –  Sometimes one can call with a question and get it answered

LII / Legal Information Institute

http://www.law.cornell.edu/wex legal dictionary/encyclopedia
http://law.lexisnexis.com/infopro/zimmermans/  Zimmerman research guide

http://constitution.org – founding documents, scholarly articles, searchable Statutes at Large
Google Scholar
http://Archive.org
Federal Digital System (laws etc)
Florida Appellate court web sites
  Florida appellate Opinions

http://www.findlaw.com/casecode/
http://www.justia.com/
http://www.plol.org/Pages/Search.aspx
http://www.lawguru.com/ilawlib/
http://thelawengine.com/
ABA Free Full-text Online Law Review/Law Journal Search Engine
Law Journals: Submissions and Rankings
http://www.fastcase.com/
http://www.versuslaw.com/
http://estore.loislaw.com/
http://www.lexisweb.com/ – Expensive
http://westlaw.com – Expensive
http://www.lexisone.com/freecaselaw/formulatingsearches.html
http://www.law.gmu.edu/library/research
http://www.law.duke.edu/lib/researchguides/intresearch
Federal case dockets and documents:  http://pacer.gov (you’ll need a credit card)