IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE
MORGAN STANLEY ABS CAPITAL
I INC. TRUST 2007-NC1 MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2007-NC1,

Plaintiff,

vs

LEIGAFOALII TAFUE WILLIAMS,
aka LEIGAFOALII TAFUE
KOEHNEN; PAPU CHRISTOPHER
WILLIAMS; REAL TIME
RESOLUTIONS, INC.; CAROLYN
RUTH KOEHNEN, AS TRUSTEE OF
THE CAROLYN R. KOEHNEN
REVOCABLE LIVING TRUST U/A,
DATED APRIL 14, 1986; and JOHN
DOES 1-5,

Defendants.

Excerpt:

Standing is a requirement grounded in Article III of the United States
Constitution, and a defect in standing cannot be waived by the parties. Chapman v.
Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have
both constitutional standing and prudential standing for a federal court to exercise
jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11
(2004). Constitutional standing requires the plaintiff to “show that the conduct of
which he complains has caused him to suffer an ‘injury in fact’ that a favorable
judgment will redress.” Id. at 12. In comparison, “prudential standing
encompasses the general prohibition on a litigant’s raising another person’s legal
rights.” Id. (citation and quotation signals omitted); see also Oregon v. Legal
Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).

[…]

The basis of Plaintiffs standing to foreclose on the subject property
(at least as alleged in the Complaint) is a January 13,2009 assignment of the
Mortgage and Note from Home 123 to Plaintiff. The assignment, attached to the
Complaint, provides:

This Assignment, made this 13th day of January,
2009, by and between Home 123 Corporation, a
California corporation, hereinafter called the “Assignor”,
and Deutsche Bank National Trust Company, as trustee
for Morgan Stanley ABS Capital I Inc., MSAC 2007NC1,
whose principal place of business and post office
address is c/o Saxon Mortgage Services, Inc., 4708
Mercantile Dr. N., Forth Worth TX 76137-3605,
hereinafter called the “Assignee.”
WITNESSETH:
In consideration of the sum of ONE DOLLAR
($1.00) and other valuable consideration paid by the
Assignee, the receipt of which is hereby acknowledged,
the Assignor does hereby, without recourse, sell, assign,
transfer, set over and deliver unto the Assignee, its
successors and assigns, the mortgage and note hereinafter
described ….CompI. Ex. 4.

The Williamses argue that this assignment cannot be valid because
Home 123 was in bankruptcy liquidation as of January 13,2009. Specifically,
Home 123 filed for Chapter 11 bankruptcy in 2007, Home 123 filed a liquidation
plan in March 2008, and the bankruptcy court confirmed the liquidation plan in
July 2008. In re New Century TRS Holdings, Inc., 407 B.R. 576, 579-80 (Bankr.
D. Del. 2009). Effective August 1, 2008, the liquidation plan:

was created with Alan M. Jacobs as trustee. Also on that
date, the Creditors’ Committee was dissolved; the Plan
Advisory Committee (the “PAC”) was formed; debtors’
officers and directors ceased serving and were replaced
by Jacobs; debtors’ assets were distributed to the
liquidating trust; and NCFC’s outstanding common and
preferred stock, as well as all notes, securities, and
indentures, were cancelled.

Id. at 585-86 (citations omitted). Given this liquidation, it appears that Home 123
could not have validly assigned the Mortgage and Note to Plaintiff on January 13,
2009. And in Opposition, Plaintiff presents no evidence (or even argument)
explaining how this January 13,2009 assignment is valid despite Home 123 ‘s
bankruptcy and liquidation. In fact, Plaintiff argues — without factual support —
that NC Capital Corporation (“NC Capital”) first bought the Note from Home 123
and Plaintiff subsequently received it through a securitized trust. See PI. ‘s Opp’n
at 20. And at the hearing, Plaintiff’s counsel inexplicably stated that discovery is
required to deternrine the Note’s assignment, even though all facts concerning any
valid assignment should certainly be known to Plaintiff without having to conduct
discovery. In other words, even Plaintiff, who is master of its Complaint and by all
accounts should know the basis of its claims, apparently disclaims the allegations
in the Complaint and at this time cannot establish its legal right to enforce the
Mortgage and Note.

The Complaint’s assertion that Plaintiff obtained the Mortgage and
Note through the January 13,2009 assignment is further called into doubt by the
fact that Plaintiff brings this action as “Trustee Morgan Stanley ABS Capital I Inc.
Trust 2007-NCI Mortgage Pass-Through Certificates, Series 2007-NC-I”–
suggesting (as Plaintiffnow argues) that Plaintiffmay have received the Mortgage
and/or Note through a Pooling and Servicing Agreement (“PSA”) in 2007. From
the evidence presented by the Williamses (Plaintiff presented no evidence on
standing in Opposition), Home 123 generally sold mortgages to its affiliate NC
Capital, who then resold the mortgages for inclusion into securitized trusts. See
Williamses’ Ex. Gat 4,-r,-r 9, 11. And NC Capital and Morgan Stanley ABS
Capital I Inc., with Plaintiff as trustee, entered into a PSA dated January 1, 2007.
See Williamses’ Ex. U. The PSA requires NC Capital to deliver to Plaintiff
assignments of mortgage for each mortgage loan, and for Plaintiff to certify
“receipt of a Mortgage Note and Assignment of Mortgage for each applicable
Mortgage Loan.” Id. at 41-42.

This evidence presents two problems for Plaintiff. First, if Plaintiff
did indeed obtain the Mortgage and Note through a 2007 PSA, then the 2007 PSA
is yet another reason why the January 13,2009 assignment is a nullity and the
Complaint’s assertion that Plaintiff obtained the Mortgage and Note from Home
123 is untrue. Second, the evidence presented does not actually establish that
Plaintiff received the Mortgage and Note through the PSA — there is no evidence
on the record establishing what mortgages were included in the PSA. Thus,
although Plaintiff might have obtained the Mortgage and Note through this PSA,
there is no evidence showing or even suggesting that this is indeed the case. As a
result, there is no evidence — at least on the record presented before the court —
creating a genuine issue of material fact that Plaintiffwas assigned the Mortgage
and Note on which it now seeks to foreclose.

In opposition, Plaintiff argues that the Williamses are not parties or
beneficiaries to the assignment such that they cannot challenge it. In making this
argument, Plaintiff relies on caselaw from this court rejecting that a
plaintiff/mortgagee can assert claims raising assignment irregularities and/or
noncompliance with a PSA. See Fed. Nat’! Mortg. Ass’n v. Kamakau, 2012 WL
622169, at *3-4 (D. Haw. Feb. 23, 2012) (relying on Velasco v. Sec. Nat’l Mortg.
Co., — F. Supp. 2d —-, 2011 WL 4899935, at *4 (D. Haw. Oct. 14,2011), to
reject “slander of title” claim challenging assignment of the note and mortgage
because where the borrower is not a party or intended beneficiary of the
assignment, he cannot dispute the validity of the assignment); Abubo v. Bank of
New York Mellon, 2011 WL 6011787, at *8 (D. Haw. Nov. 30,2011) (rejecting
claim asserting violation of a PSA because a third party lacks standing to raise a
violation of a PSA and noncompliance with terms of a PSA is irrelevant to the
validity of the assignment).

Plaintiffs argument confuses a borrower’s, as opposed to a
lender’s, standing to raise affirmative claims. In Williams v. Rickard, 2011 WL
2116995, at *5 (D. Haw. May 25,2011), — which involved the same parties in this
action and in which Lei Williams asserted affirmative claims against Deutsche
Bank — Chief Judge Susan Oki Mollway explained the difference between the two:

[Lei Williams is] confused about the doctrine of legal
standing. [Lei Williams] believers] that, because
Deutsche Bank and Real Time have not proven that they
have standing to enforce the loan documents, they lack
standing to seek summary judgment on the affirmative
claims asserted against them. Had Deutsche Bank or
Real Time filed affirmative claims to enforce the notes
and mortgages, they would have had to establish their
legal right to enforce those documents. However,
Williams has sued Deutsche Bank and Real Time, and
the banks are merely seeking a determination that they
are not liable to Williams for the claims Williams asserts
against them. The banks need not establish that they are
the legal owners of Williams’s loans before they defend
against Williams’s claims. “Standing” is a plaintiff’s
requirement, and Williams misconstrues the concept in
arguing that Defendants must establish “standing” to
defend themselves.

(emphasis added). In this action, the proverbial shoe is on the other foot —
Deutsche Bank asserts affirmative claims against the Williamses seeking to enforce
the Mortgage and Note, and therefore must establish its legal right (i.e., standing)
to do so. See, e.g., IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821,
828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have “a
sufficient interest in the Mortgage to have suffered an injury from [the
mortgagor’s] default”). As explained above, Deutsche Bank has failed to do so.

The court therefore GRANTS the Williamses’ Motion to Dismiss.

[ipaper docId=87466582 access_key=key-1szk77peen8kvkve052f height=600 width=600 /]

H/T Deontos

From Deadly Clear-

“One of the most important decisions for Borrowers Rights in the history of Hawaii has been made with this decision,” remarked Honolulu attorney Gary Dubin.  Honorable Judge J. Michael Seabright of the Hawaii United States District Court, today GRANTED the homeowners’ Motion to Dismiss the case filed against them in federal district court by Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1.

[…]

Honorable Judge J. Michael Seabright gets it!  And his ORDER was detailed.  In the Discussion, Judge Seabright notes an argument that homeowners have being trying to persuade the courts (especially at the lower state levels) to grasp: STANDING and JURISDICTION.

“Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to “show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12. In comparison, “prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights.” Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).”

Let’s continue – but we’ll get back to that injury issue later in the post…

[DEADLY CLEAR]

This is wrong in many levels. Make sure you have a barf bag handy!!

MPRNEWS-

MPR News received a tip about a complicated story involving an attorney, a judge and the state’s foreclosure laws.

U.S. District Judge Patrick J. Schiltz has taken the unusual step of sanctioning Minneapolis attorney William Butler for filing what the judge calls frivolous show-me-the-note actions. That’s where a homeowner facing foreclosure argues that because the mortgage and note are held by different entities, the home’s mortgage or foreclosure on that mortgage is invalid.

Separating the note from the mortgage contributed to the practice of mortgage securitization, one culprit in the housing bubble and crash.

Some courts in other states have ruled in favor of homeowners in cases like these. But here, Judge Schiltz says it’s been established under Minnesota law (he references Jackson v. Mortgage Electronic Registration Systems, Inc.) that the entity that holds the mortgage can foreclose on the mortgage even if that entity does not also hold the note. Showing the note is not necessary under foreclosure by advertisement, which is how most of Minnesota’s foreclosures are processed.

Butler, of Butler Liberty Law, LLC, brought nearly 30 of such cases on behalf of several hundred people and apparently never won.

Among other things, Judge Schiltz alleges Butler solicited homeowners facing foreclosure for frivolous cases and then “judge shopped” for sympathetic judges while his cases dragged on for months, allowing him to collect fees from clients and allowing those clients to continue living in their homes rent-free.

As punishment, the court ordered Butler to pay a $50,000 penalty and cover attorneys fees for some of the largest firms representing clients like GMAC Mortgage, Deutsche Bank, The Bank of New York and others. People familiar with the case expect these penalties to rise well into the six figures. Butler also risks losing his license to practice law.

[MPR NEWS]

“Texas does not pass banking laws for Utah,” Assist. AG Jerrold Jensen wrote. “And Utah does not pass banking laws for Texas.”

The Salt Lake Tribune-

The Attorney General’s Office is seeking to intervene in a lawsuit in which a federal judge has ruled that Texas law governs foreclosures carried out by a unit of Bank of America in Utah.

The Feb. 8 ruling by U.S. District Judge Ted Stewart “is not something the State of Utah can let pass,” Assistant Attorney General Jerrold Jensen wrote in seeking to intervene in the lawsuit.

Federal judges in Utah have split over the question of whether BofA’s foreclosure arm, ReconTrust, may have violated state law in thousands of actions taken in recent years against Utah homeowners.

Stewart ruled that because ReconTrust is headquartered in Texas, where it carries out many of its foreclosure functions, the National Bank Act says the bank’s actions are governed by that state’s laws.

[THE SALT LAKE TRIBUNE]

“requires courts to enforce agreements to arbitrate according to their terms . . . even when the claims at issue are federal statutory claims, unless the FAA’s mandate has been ‘overridden by contrary congressional command.’”

.

SUPREME COURT OF THE UNITED STATES
Syllabus

COMPUCREDIT CORP. ET AL. v. GREENWOOD ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–948. Argued October 11, 2011—Decided January 10, 2012

[ipaper docId=87396392 access_key=key-l9l73t0vwkdubqrki5a height=600 width=600 /]

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND

ONEWEST BANK, FSB, as successor in interest to
INDYMAC BANK, FSB,

Plaintiff

against

JOHN A. GALLI,
GEORGANN GALLI, and
“JOHN DOE #1″ through “JOHN DOE #10″,
inclusive the last ten names being fictitious and unknown
to the plaintiff, the persons or parties intended being the persons,
tenants, occupants, or corporations, if any, having or claiming
an interest in or lien upon the mortgaged premises described
in the complaint

Defendants

The plaintiff moves for partial summary judgment dismissing the defendants’ third,
fourth, sixth, seventh, eighth, tenth, eleventh, twelfth, thirteenth, fifteenth and sixteenth
affirmative defenses. In opposition, the defendants cross-move for summary judgment arguing
that the plaintiff lacks standing; lacks capacity to commence and maintain this action; failed to
elect remedies pursuant to RPAPL § 1301; and failed to provide each defendant with the
requisite acceleration notices. The plaintiff’s motion is denied, and the defendants’ motion is
granted.

Facts

This is an action to foreclose real property known as 231 Douglas Road, Staten Island,
New York. On August 26, 2003 John A. Galli and Georgann Galli executed a promissory note
and mortgage in favor of WMC Mortgage Corp. (“WMC”) in the amount of $550,000. The
mortgage contained the following language concerning the business entity known as Mortgage
Electronic Registration Systems, Inc. (“MERS”):

I understand and agree that MERS holds legal title to the rights
granted by me in this Security Instrument, but, if necessary to
comply with law or custom, MERS (as nominee for Lender and
Lender’s successor and assigns) has the right:
(A) to exercise any or all of those rights, including, but not
limited to, the right to foreclose and sell the Property; and
(B) to take any action required of Lender including, but not
limited to, releasing and canceling this Security Instrument.

In addition the Promissory Note submitted in connection with these motions contain an
undated Allonge to Promissory Note stating: “Pay to the Order of INDYMAC BANK, FSB
Without Recourse WASHINGTON MUTUAL BANK”. On October 22, 2004, MERS
purportedly assigned this mortgage as nominee for WMC to Washington Mutual Bank, FA.

On November 16, 2004 the defendants executed a promissory note and mortgage in favor
of Washington Mutual Bank, F.A. in the amount of $457,050.77. Once again, the Promissory
Note submitted for consideration in connection with these motions contains an undated Allonge
to Promissory Note that states “Pay to the Order of IndyMac Bank, FSB Without Recourse
Washington Mutual Bank”. Simultaneously, the defendants executed a Consolidation, Extension
and Modification Agreement (“CEMA”) with Washington Mutual Bank, F.A. on the same day.
Exhibit A of the CEMA lists the 2003 WMC mortgage executed by the defendants as well as the
concurrently executed Washington Mutual Bank, FA mortgage as being consolidated, extended
and modified by this agreement. However, WMC was not a signatory to the November 16, 2004
CEMA.

Two years later on April 5, 2006, MERS as nominee for Washington Mutual Bank, FA
purportedly assigned the 2003 WMC mortgage and the 2004 Washington Mutual Bank, FA
mortgage to Washington Mutual Bank. A second assignment on the same day had Washington
Mutual Bank, F/K/A Washington Mutual Bank, FA purportedly made the following assignments
to MERS as nomminee for Indymac Bank, FSB:

Mortgage dated 08/26/2003 made by John A. Galli and Georgeann
Galli, Husband and Wife to Mortgage Electronic Registration
Systems, Inc. as nominee for WMC Mortgage Corporation in the
principal sum of $550,000.00 and recorded on 01/28/2004, in the
office of the CLERK of the County of RICHMOND, in Book
17109 of Mortgages, page 242.

ASSIGNMENT FROM: Mortgage Electronic Registration
Systems, Inc. as nominee for WMC Mortgage Corporation to
Mortgage Electronic Registration Systems, Inc. as nominee for
Washington Mutual Bank, FA dated 10/22/2004 recorded
6/2/2005.

ASSIGNMENT FROM: Mortgage Electronic Registration
Systems, Inc. As nominee for Washington Mutual Bank FA to
Washington Mutual Bank dated 4/4/2006 to be recorded
concurrently.

2nd Mortgage dated 11/16/2004 recorded 6/2/2005 in document
control 48484 between John A. Galli and Georgeann Galli, aka
Georgeann Galli husband and wife and Washington Mutual Bank,
FA in the amount of $457,050.77

Consolidation, Extension, and Modification Agreement made by
John A. Galli and Georgeann Galli, aka Georeann Galli husband
and wife and Washington mutual Bank, FA dated 11/16/2004
recorded 6/2/2005 in document number 48485 consolidated
mortgages 1 & 2 to form a single lien in the amount of
$1,000,000.00

On April 14, 2006 the defendants executed another Promissory Note and Mortgage this
time in favor of IndyMac Bank, FSB in the amount of $143,595.50. Concurrently with the third
mortgage, the defendants executed a Consolidation, Extension and Modification Agreement in
favor of IndyMac Bank, FSB. Once again, neither WMC, nor Washington Mutual Bank f/k/a
Washington Mutual Bank, FA were signatories to this second CEMA.

According to the affidavit of Brian Burnett, an Assistant Vice President of OneWest
Bank, FSB (“OneWest”) that on or about July 11, 2008, IndyMac Bank, FSB failed and went into
receivership. Upon entering receivership it changed its name to IndyMac Federal Bank, FSB and
on or about March 19, 2009 merged with OneWest. According to Mr. Burnett, OneWest
acquired all of IndyMac’s assets. However, notably absent from the record is a copy of the
purchase and assumption agreement between OneWest and IndyMac.

On or about September 1, 2008 the defendants allegedly defaulted on the notes and
mortgages.

The plaintiff moved for partial summary judgment dismissing the defendants third,
fourth, sixth, seventh, eighth, tenth, twelfth, thirteenth, fifteenth and sixteenth affirmative
defenses. The defendant cross moves to dismiss the plaintiff’s action arguing that the plaintiff:
1) lacks standing; 2) lacks capacity to commence and maintain this action; and 3) failed to elect
remedies pursuant to RPAPL § 1301. In opposition to the defendants’ cross motion, the plaintiff
submits attorney certified copies of the relevant notes and mortgages encumbering 231 Douglas
Road, Staten Island, New York.

Discussion

The court will address the defendants’ cross-motion to dismiss the complaint pursuant to
CPLR § 3211(a). The record in this case shows that MERS assigned the mortgage several times
before the original notes and mortgages found their way to the plaintiff in this action. Here the
court must determine whether the plaintiff in a foreclosure action must establish a clear chain of
title of the relevant notes and mortgages prior to commencing the foreclosure proceeding. This
court concludes that a foreclosing plaintiff must establish how it came to possess the relevant
notes and mortgages it wishes to foreclose.

On June 7, 2011 the Appellate Division, Second Department issued its decision in the
Bank of New York v. Silverberg case.1 In that case the court was called to resolve the issue of,
“. . . whether a party has standing to commence a foreclosure action when that party’s
assignor–in this case, Mortgage Electronic Registration Systems, Inc. . . . was listed as a nominee
and mortgagee for the purposes of recording, but was never the actual holder or assignee of the
underlying notes.”2 The Appellate Division, Second Department held that such a party did not
have standing to commence a foreclosure action.

In a mortgage foreclosure action, a plaintiff must be both the holder or assignee of the
mortgage and the underlying note at the time the action is commenced.3 Here, as was the case in
Silverberg, MERS purportedly transferred the WMC mortgage to Washington Mutual Bank, FA
in connection with a consolidation as nominee. In turn, MERS as the nominee of Washington
Mutual Bank, FA assigned the mortgage to Washington Mutual Bank. Subsequently,
Washington Mutual Bank assigned the mortgages, prior assignments and CEMAs to MERS as
nominee of IndyMac Bank, FSB. The Appellate Division, Second Department found in
Silverberg that “. . . as ‘nominee,’ MERS’s authority was limited to only those powers which
were specifically conferred to it and authorized by the lender.” Here, as was the case in
Silverberg, MERS lacked the authority to assign the underlying notes. Consequently, how the
plaintiff came into possession of the mortgages and notes in this case is suspect.

The plaintiff cites a multitude of cases purportedly holding that possession of the physical
notes establishes its standing to commence this action.4 But each of these cases predate the
Appellate Division, Second Department’s decision in Silverberg. Consequently, this court finds
that the initial transfer between WMC Mortgage and Washington Mutual Bank, F.A. is a nullity
and therefore the plaintiff must establish how it procured the notes and mortgages for 231
Douglas Road, Staten Island, New York.

Given this court’s decision on the cross-motion the plaintiff’s motion for summary
judgment is denied.

Accordingly, it is hereby:

ORDERED, that John A. Galli and Georgann Galli’s cross-motion dismissing the
plaintiff’s complaint is granted and the complaint is dismissed without prejudice; and it is further
ORDERED, that the plaintiff’s motion to foreclose is denied.

ENTER,
DATED: March 23, 2012

Joseph J. Maltese
Justice of the Supreme Court

[ipaper docId=87290268 access_key=key-19tmms9jprudutzdbinb height=600 width=600 /]

Oregon Live-

With Oregon’s state and federal courts singing a variety of different tunes on the mortgage industry’s controversial nationwide document-registration system, someone has finally asked the state Supreme Court to step in.

If the high court gives the system a thumbs down, it could throw a wrench into thousands of pending foreclosures in Oregon and potentially upend thousands more already completed.

An order filed this week in the U.S. District Court in Portland said that court’s chief judge will certify questions for the Supreme Court. The Supreme Court has to formally accept the questions, and it has the latitude to reject or even reword them.

[OREGON LIVE]

via: Alina

e-discovery is a must. Everything was transmitted electronically. An electronic database where its members “shake hands” to make transfers. Preservation letters must be sent out to the foreclosing entities. Most states have stringent spoliation laws. If evidence is destroyed, it goes against the entity doing the destroying.

Law.Com-

Advanced forensic ability leads to advanced law enforcement capability. That’s not a particularly insightful theorem but, nevertheless, an accurate one.

Probably no forensic realm has seen a more expansive increase in capabilities than the analysis of digital devices, and this reality was brought home in what were certainly the two most prominent trials of 2011 — State of Florida v. Casey Anthony and People of the State of California v. Conrad Murray. In both cases, the timelines generated by digital forensic evidence played significant roles in the prosecutions’ respective attempts to prove guilt.

FORENSIC TIMELINE ANALYSIS …

In the Conrad Murray case, a recording of a cell phone conversation between Michael Jackson and the defendant stored on the latter’s phone was introduced into evidence, which forensic testimony demonstrated occurred six weeks prior to Jackson’s death. Jackson’s obviously slurred and …

[LAW.COM]

Via: Discovery Tactics aka Anthony Martinez & Assoc.

Latest Electronically Stored Information (ESI) Cases

I’ve been harping on the importance of demanding and acessing ESI from foreclosing parties for quite some time now.  A properly made ESI discovery request will provide numerous “smoking gun” documents that are sure to place the opposing party in a uncomfortable position.  Below I’ve identifed some of the most recent and more important cases that involve ESI.

—————————————————-

Court Precludes Offering of Evidence as Sanction for Discovery Evasion

In re LTV Steel Co., Inc., 307 B.R. 37 (N.D. Ohio 2004) In bankruptcy proceeding, a creditor (“C&K”) submitted a claim for $1.9 million against the estate, a portion of which the debtor agreed was due. When the debtor sought…

American Banker-

Karen Stevens spent nearly $1,900 paying off delinquent credit card debt she owed Bank of America in 2006. She then spent another three years fending off demands from collections agencies that she repay the debt all over again. Neither a cancelled check or creditor’s letter stating that she’d fulfilled her obligations deterred the collectors.

Stevens ended the nightmare only by hiring a lawyer and counter-suing her pursuers. Bank of America was not directly involved in the legal contretemps, but it appears to have set them off by selling rights to Stevens’ account, even after assuring her she’d paid up in full.

[AMERICAN BANKER]

After all, Sharon Horstkamp has served as Vice President, Secretary and General Counsel.

Market Watch-

Putting that same proven leadership to work, Skalka will relocate to Virginia to join Mortgage Electronic Registration Systems (MERS®) as their General Counsel. MERS operates an electronic registry of mortgage loan servicing rights and ownership, and is presently addressing the challenging issues associated with foreclosures and mortgage record holding, areas in which Skalka’s background and knowledge is uniquely suited.

Skalka joined Stewart in 1988 as the founding president of our New York subsidiary, Stewart Title Insurance Company (STIC). Shortly thereafter, in the early 1990s, he helped establish our operations in the United Kingdom, and then relocated from New York to Houston in 1993 to serve as executive vice president and general counsel until 2005.

[MARKET WATCH]

Thousands of homeowners in South Florida are fighting to keep their homes in the wake of the robo-signing foreclosure scandal.

Thousands more have already lost their houses.

“We never did anything wrong from the start. We got caught up in the system,” said Lavoid Johnson, a homeowner in Boca Raton.

Johnson and his wife Lisa are fighting to hold on to their dream after they say foreclosure paperwork moved through the Palm Beach County court system without their knowledge.

Lavoid says they sent their payments but for some reason the money was not received properly by the mortgage service provider back in 2008.

M Live-

Ingham County officials expect to see tens of thousands of dollars in new revenue as they begin collecting taxes from two of the nation’s largest mortgage lenders.

Ingham County Register of Deeds Cutris Hertel Jr. said he will begin requiring Fannie Mae and Freddie Mac to pay full transfer taxes on all property transfers in which they are the seller.

The two companies had claimed to be exempt from paying taxes upon filing new deeds, saying they were government entities.

But a recent court ruling found the lenders were private entities, Hertel said.

“We’ve been telling them along the way they need to pay on these, but we haven’t had the legal backing until the Oakland County case was decided,” Hertel said.

[M LIVE]

Abigail C. Field-

The mortgage settlement signed by 49 states and every Federal law enforcer allows the rampant foreclosure fraud currently choking our courts to continue unabated. Yes, I realize the pretty language of Exhibit A promises the banks will completely overhaul their standard operating procedures and totally clean up their acts. Promises are empty if they’re not honored, and worthless if not enforceable.

We know Bailed-Out Bankers’ promises are empty, so what matters is if the agreement is enforceable. And when it comes to all things foreclosure fraud, the enforcement provisions are laughable. But before I detail why, let’s be clear: I’m not being hyperbolic. The bankers running and profiting most from our bailed-out banks are totally dishonest when dealing with the public, and their promises are meaningless.

To see their dishonesty in the mortgage context, read the complaint filed in the mortgage deal, or my take on it here. But the bankers don’t limit their lying, cheating and stealing to homeowners. They abuse their clients the same way. Most broadly damaging, the bankers steal from taxpayers on a federal, state and local level and practically everybody else too. Fraud is just how they do business. When dealing with bankers, you can’t do business on a handshake.

[REALITY CHECK]

Alison Frankel via Reuters Legal/ On the Case is working on this story.

Please check back.

[ipaper docId=87228073 access_key=key-17ov3m0kj8ag4nlsvh0h height=600 width=600 /]

WKYC-

Foreclosure is a nightmare in itself and now a Parma woman says Wells Fargo closed up her house and cleaned her out illegally.

“It was my first home, it was my children’s first home that we owned,” says Elizabeth Kennedy.

It was her American dream: A home on a quiet street in Parma. But the nightmare of the recession hit her family hard.

“About a year ago, year and a half ago, my husband lost his job. It was supposed to be a month long thing, it ended up being almost a year,” she explained. 

Despite attempts to get the house back, Kennedy’s home went into foreclosure and sold back to the bank at auction. Then going through divorce, this legally blind mother of two relied on friends to slowly move her possessions out of her home.

[WKYC]

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

COUNTRYWIDE HOME LOANS, INC.;
BANK OF AMERICA CORPORATION;
BANK OF AMERICA, N.A.,

Plaintiffs,

v.

AMERICA’S WHOLESALE LENDER, INC., a
New York Corporation…

Defendants

Excerpt:

Plaintiff Countrywide Home Loans, Inc. (“CHLI”) will arguably go down in history as the most prolific predatory lenders of all time. One would think this is a matter beyond reasonable dispute by way of a few examples, this point will be illustrated:

PDF LINK BELOW

[AWL v Countrywide]

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PB Public Affairs –

West Palm Beach Attorney Lynn Szymoniak who uncovered the “robo-signing” fraud perpetrated by some of the nation’s largest mortgage banks, will share her personal story with the Gerald A Williams Esq. Law Academy students at Palm Beach Lakes Community High School. 

Ms. Szymoniak will address the students on Tuesday, April 3, 2012 from 9:00am -10:40am. Her presentation will focus on public interest law and her successful whistleblower case where she uncovered fake documents in regards to foreclosure cases. There will also be a question and answer period.

Ms. Szymoniak first appeared on 60 Minutes in April of 2011, claiming that the country’s four largest mortgage services had defrauded the federal government by creating fake documents to replace lost or nonexistent ones in order to receive government-funded payments. Recently those banks settled and under the False Claims Act, a private person, also known as a “whistleblower,” is entitled to a share of the money recovered by the U.S. Government.

[PB PUBLIC AFFAIRS]

SF Business Times-

Wells Fargo  is shutting down its 3-year-old vSafe document-storage service after it failed to gain traction in the marketplace.

“Wells Fargo is discontinuing vSafe due to low customer interest and adoption,” said Wells spokesman Ruben Pulido. “When the company introduced the vSafe service in 2008, we were addressing a trend that more electronic documents were becoming available and people wanted a way to organize and store electronic information. Now many more options exist.”

[SF BUSINESS TIMES]

Crain’s-

The U.S. Treasury Department, which put $17.2 billion into a bailout of Ally Financial Inc., has indicated it would prefer a breakup and sale of the lender — including selling the company’s captive finance auto business back to General Motors Co., its original owner.

People familiar with the matter told Bloomberg that Treasury wants to make such moves because it no longer believes an initial public offering of Ally stock would succeed.

GM previously owned Ally when it was known as GMAC Financial Services. GM spokesman Jim Cain declined to comment on the report.

Treasury officials are telling Ally executives, directors and financial advisers that an IPO is unlikely soon because of the company’s high cost of capital relative to other banks, the potential bankruptcy of a mortgage unit, and its recent performance in Federal Reserve Board stress tests, said the people, who asked not to be identified because the talks are private.

[CRAIN’S DETROIT]

In the REAL WORLD these things do not ever happen!

AP-

Bank of America gave its CEO a pay package worth $7.5 million last year, six times as large as the year before. It happened while the company’s stock lost more than half its value and the bank lost its claim as the biggest in the country.

The package for CEO Brian Moynihan included a salary of $950,000, a $6.1 million stock award and about $420,000 worth of use of company aircraft and tax and financial advice.

The figures are according to an Associated Press analysis of a regulatory filing Wednesday. In 2010, Moynihan’s pay package totaled $1.2 million.

The board said the stock award to Moynihan was justified because the bank turned a profit after losing money in 2010, and because it ended the year with a stronger balance sheet.

Moynihan, 52, took over as CEO in 2010. Besides the lawsuits, his first year was marked by mounting losses in credit cards and vastly reduced income from checking accounts. Bank of America lost $2.2 billion.

Last year, it fought a tide of lawsuits that cost the company $14 billion. Worried over how deep the mortgage problems were, the Federal Reserve refused to let Bank of America increase its stock dividend.

[ASSOCIATED PRESS]

HuffPO-

How many hoops do homeowners have to jump through to shake off a bad mortgage?

This question is at the heart of a growing area of law as judges across the country try to determine whether borrowers who took out loans at the height of the subprime bubble, under shady terms that they weren’t told about, can cancel their mortgage and walk away debt-free.

Under the federal Truth in Lending Act, homebuyers who aren’t properly informed of the terms of their mortgage have up to three years to cancel or “rescind” the loan. What’s unclear now is whether borrowers, to ensure the debt is canceled, also have to file a lawsuit within that three-year window against whoever owns the loan.

On Tuesday, the Consumer Financial Protection Bureau weighed in, filing a friend of the court brief in a …

[HUFFINGTON POST]