Decided on January 30, 2013

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

PETER B. SKELOS, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2011-10558
(Index No. 6034/10)

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y.
(Thomas M. Smith of counsel), for appellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Schuyler B.
Kraus and Annmarie D’Amour of
counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Isadora Sidroula Spanos appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated August 29, 2011, which granted the plaintiff’s application, in effect, to compel her to accept its reply to her counterclaim, and granted the plaintiff’s motion for summary judgment dismissing her affirmative defenses and counterclaims, and denied her cross motion, inter alia, for leave to enter judgment against the plaintiff on its default in replying to her counterclaims and for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that on the Court’s own motion, the notice of appeal from so much of the order as granted the plaintiff’s application, in effect, to compel the defendant Isadora Sidroula Spanos to accept its reply to her counterclaim is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c]); and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were for summary judgment dismissing the second and third affirmative defenses asserted by the defendant Isadora Sidroula Spanos, and substituting therefor a provision denying those branches of the plaintiff’s motion; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court erred in granting that branch of the plaintiff’s motion which was for summary judgment dismissing the second affirmative defense asserted by the defendant Isadora Sidroula Spanos (hereinafter the appellant). In her second affirmative defense, the appellant alleged, inter alia, that the plaintiff failed to comply with the mortgage foreclosure notice requirements mandated by RPAPL 1304. RPAPL 1304 provides that, “at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower in at least fourteen-point type” (RPAPL 1304[1]). RPAPL 1304 sets forth the requirements for the content of such notice (see RPAPL 1304[1]), and further provides that such notice must be sent by registered or certified mail, and also by first-class mail, to the last known address of the [*2]borrower (see RPAPL 1304[2]).

RPAPL 1304 currently applies to any “home loan,” as defined in RPAPL 1304(5)(a). When the statute was first enacted, it applied only to “high cost,” “subprime,” and “non-traditional” home loans (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 104 [citing L 2008, ch 472, § 2]). In 2009, the Legislature amended the statute, “effective January 14, 2010, to take its current form, by deleting all references to high-cost, subprime, and non-traditional home loans” (Aurora Loan Servs., LLC, 85 AD3d at 105 [citing L 2009, ch 507, § 1-a]). Since the instant action was commenced on March 26, 2010, the 90-day notice requirement set forth in the statute is applicable.

“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC, 85 AD3d at 106). Here, the plaintiff failed to submit an affidavit of service evincing that it properly served the appellant pursuant to RPAPL 1304 (see id.). Thus, it failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law in connection with this affirmative defense (see Aurora Loan Servs., LLC, 85 AD3d at 106). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the second affirmative defense alleging that the plaintiff failed to comply with RPAPL 1304 without regard to the sufficiency of the appellant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

However, the appellant’s contention that the Supreme Court should have granted that branch of her cross motion which was for summary judgment dismissing the complaint insofar as asserted against her based on the plaintiff’s failure to comply with the notice requirements set forth in RPAPL 1304 is without merit. The appellant failed to meet her burden of establishing, prima facie, that the plaintiff did not properly serve her with notice pursuant to RPAPL 1304. In support of her cross motion, the appellant’s counsel merely argued that the plaintiff failed to submit any proof that such notice was served. However, as the moving party, the appellant needed to affirmatively demonstrate that the pre-condition was not satisfied. Indeed, “[a] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent’s proof, but must affirmatively demonstrate the merit of its claim or defense” (Velasquez v Gomez, 44 AD3d 649, 650-651, quoting George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615; see Fields v Village of Sag Harbor, 92 AD3d 718; Calderone v Town of Cortlandt, 15 AD3d 602). The plaintiff alleged in the complaint that it complied with the provision of RPAPL 1304. Having failed to submit evidence which disproved this allegation, the appellant failed to satisfy her initial burden on this branch of her cross motion.

The Supreme Court also erred in granting that branch of the plaintiff’s motion which was for summary judgment dismissing the appellant’s third affirmative defense alleging that the plaintiff lacked standing to commence this action. In a mortgage foreclosure action, “[a] plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced” (HSBC Bank USA v Hernandez, 92 AD3d 843, 843; see U.S. Bank, N.A. v Collymore, 68 AD3d 752, 753; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709, 709). A mortgage “is merely security for a debt or other obligation and cannot exist independently of the debt or obligation”‘ (Bank of N.Y. v Silverberg, 86 AD3d 274, 280, quoting FGB Realty Advisors v Parisi, 265 AD2d 297, 298; see Weaver Hardware Co. v Solomovitz, 235 NY 321, 331-332). Consequently, where a note is transferred, a mortgage securing the debt passes as an incident to the note. By contrast, an assignment of a mortgage without assignment of the underlying note or bond is a nullity (see Merritt v Bartholick, 36 NY 44, 45; Bank of N.Y. v Silverberg, 86 AD3d at 280; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911). ” Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation'” (HSBC Bank USA v Hernandez, 92 AD3d at 844, quoting U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Bank of N.Y. v Silverberg, 86 AD3d at 281).

Here, the plaintiff failed to establish, prima facie, that it had standing to commence the action. Contrary to the plaintiff’s contention, the evidence it submitted did not demonstrate that [*3]the adjustable rate note executed by the defendant Demetres Spanos was physically delivered to it prior to the commencement of the action, or that it was the assignee of the note by execution of a written assignment prior to the commencement of the action. Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment dismissing the appellant’s third affirmative defense alleging that the plaintiff lacked standing without regard to the sufficiency of the appellant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). However, since, as the appellant concedes, questions of fact exist in this regard, the appellant was not entitled to summary judgment dismissing the complaint insofar as asserted against her on the ground that the plaintiff lacked standing.

The appellant’s remaining contentions either have been rendered academic in light of our determination or are without merit.
SKELOS, J.P., HALL, ROMAN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

So why buy from those who have been caught red handed selling toxic fraudulent securities? How about shitty deals? [see video below]

NBS – Nothing Backed Securities is exactly whatcha buy!

HW-

The Federal Open Market Committee has another distinct opportunity in its latest Federal Open Market Committee statement to argue its third-round of open-ended quantitative easing is working, according to Bank of America Merrill Lynch ($11.38 0%).

The FOMC wraps up the meeting today and will release the minutes weeks from now, but analysts already expect ongoing FOMC support for mortgage-backed securities purchases.

[HOUSING WIRE]

You can read the TESTIMONY OF REBECCA MAIRONE DEFAULT SERVICING EXECUTIVE BANK OF AMERICA HOME LOANS Before the HOUSE FINANCIAL SERVICES HOUSING AND COMMUNITY OPPORTUNITY SUBCOMMITTEE 

And you might also find this interesting as well: Rebecca Mairone, BofA Exec Who Allegedly Enabled Fraud, Now Head Of JPMorgan Chase Foreclosure Review

Reuters-

The Justice Department has added a former top executive at Countrywide Financial Corp as a defendant in a lawsuit accusing Bank of America Corp of causing taxpayers $1 billion in losses to Fannie Mae and Freddie Mac.

Rebecca Mairone was added as a defendant in an amended civil lawsuit dated January 11 and filed in U.S. District Court in New York. The filing was not made available in electronic court records until later in the month.

The complaint says it was at Mairone’s direction that the bank implemented a program to speed up the processing of home loans and remove barriers intended to ensure loans are not tainted by fraud. The program was known internally at Countrywide as the “Hustle,” the Justice Department said in the complaint.

[REUTERS]

Washington, D.C. (Jan. 31, 2013) — Today, Senator Elizabeth Warren (D-MA) and Rep. Elijah E. Cummings (D-MD) sent a letter to Federal Reserve Chairman Ben Bernanke and Comptroller of the Currency Thomas Curry seeking documents relating to their recent settlement with mortgage servicers that ended the Independent Foreclosure Review (IFR) process. 

“We believe that public confidence in the settlement – the confidence necessary to speed recovery of the housing markets – will exist only if the OCC and the Federal Reserve provide additional transparency into the process used and information gathered during the Independent Foreclosure Review process,” wrote Warren and Cummings.  “It is critical that the OCC and the Federal Reserve disclose additional information about the scope of the harms found to establish confidence in the sufficiency and integrity of the settlement.”

The IFR was established under consent orders issued by these agencies in 2011 to 14 mortgage servicers that engaged in unsafe and unsound practices related to residential mortgage servicing and foreclosure processing.  The new settlement, announced on January 7, abruptly ended the IFR process and required banks to provide cash payments and other assistance to borrowers who had homes in foreclosure in 2009 and 2010.

The Members requested documents and information including:

•    The results of all IFR performance reviews by the Federal Reserve or the OCC, including all documents reviewing the performance of each of the independent contractors that conducted reviews of borrower files under the terms of the consent orders issued in April 2011;

•    All documents compiled by the Federal Reserve or the OCC indicating the total amount of settlement funds paid to each independent contractor; and

•    The total number of reviews of borrower files initiated by each of the independent contractors, and the number of borrower files in which unsafe or unsound practices were found.

source: http://democrats.oversight.house.gov

image: BusinessWeek.com

[ipaper docId=123204966 access_key=key-ot2yaq2baja6xgnpnhi height=600 width=600 /]

Reuters-

Ocwen Financial Corp (OCN.N) is in the lead to buy mortgage servicing rights on $122 billion of loans from Ally Bank, three people familiar with the situation said on Thursday.

The deal is expected to be valued at around $1 billion and could be announced soon, said one of the sources, who declined to be identified because details of the auction are not public.

Ally, the U.S. auto lender that is 74 percent-owned by the U.S. government, received five offers for the mortgage servicing rights and the outcome of the auction is not certain, the source said.

While Ocwen is currently the lead bidder, its offer is “neck and neck” with that of another bidder, a second source said.

[REUTERS]

By Lender Processing Services, Inc.

JACKSONVILLE, Fla., Jan. 31, 2013 — /PRNewswire/ — Lender Processing Services, Inc. (NYSE:LPS), a leading provider of integrated technology and services to the mortgage and real estate industries, today announced that it has entered into settlement agreements with the attorneys general of 46 states and the District of Columbia.

(Logo:  http://photos.prnewswire.com/prnh/20120802/FL50731LOGO )

The multi-state settlement, which includes an aggregated payment by LPS of $127 million, resolves inquiries surrounding the company’s default operations, including former document preparation, verification, signing and notarization practices of certain operations.  The company previously announced settlements of similar inquiries with the states of Missouri, Delaware and Colorado, leaving the complaint filed by the state of Nevada as the only unresolved attorney general inquiry. As part of the settlements, LPS confirmed its ongoing commitment to stronger compliance and oversight of its operations – and to continue its remediation efforts.

“Today’s settlements are another major step toward putting issues related to past business practices behind us,” said LPS President and Chief Executive Officer Hugh Harris. “As LPS continues to grow and exercise its leadership in the mortgage industry, we remain committed to enhanced regulatory compliance and operational excellence, which are crucial in our changing industry.”

LPS has also continued to resolve outstanding civil litigation. Notably, on Jan. 28, 2013, the company settled the securities fraud litigation brought by St. Clair Shores General Employees’ Retirement System, subject to entry of a final order by the federal district court. Additionally, in December 2012, LPS resolved litigation filed by American Home Mortgage Servicing, Inc. (AHMSI).

“We look forward to favorably resolving our remaining regulatory and legal issues in the near future,” said Harris.

As a result of these settlements, as well as progress on other outstanding legal issues, LPS increased its legal and regulatory reserve in the quarter ended Dec. 31, 2012, by $48 million (which includes $14 million for the securities fraud settlement that was not previously included in the reserve). As of Dec. 31, 2012, the balance in the company’s legal reserve, after the payment of expenses, was $223 million.

In addition to the District of Columbia, the 46 states participating in this settlement are: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.

LPS will announce its complete fourth quarter 2012 financial results after 4 p.m. EST on Thursday, Feb. 7, 2013, and will host a conference call at 10 a.m. EST on Friday, Feb. 8, 2013, to discuss these results.

About Lender Processing Services

Lender Processing Services (NYSE: LPS) delivers comprehensive technology solutions and services, as well as powerful data and analytics, to the nation’s top mortgage lenders, servicers and investors. As a proven and trusted partner with deep client relationships, LPS offers the only end-to-end suite of solutions that provides major U.S. banks and many federal government agencies the technology and data needed to support mortgage lending and servicing operations, meet unique regulatory and compliance requirements and mitigate risk.

These integrated solutions support origination, servicing, portfolio retention and default servicing. LPS’ servicing solutions include MSP, the industry’s leading loan-servicing platform, which is used to service approximately 50 percent of all U.S. mortgages by dollar volume. The company also provides proprietary data and analytics for the mortgage, real estate and capital markets industries.

LPS is a Fortune 1000 company headquartered in Jacksonville, Fla., and employs approximately 8,000 professionals. For more information, please visit www.lpsvcs.com.

SOURCE Lender Processing Services, Inc.

Via: MATTHEW WEIDNER LAW

SOUTH BAY LAKES HOMEOWNERS ASSOCIATION INC

v.

WELLS FARGO BANK

SOUTH BAY LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. WELLS FARGO BANK, N.A., Appellee.

No. 2D10-148.

— February 18, 2011

Leslie M. Conklin, Clearwater, for Appellant.

Forrest G. McSurdy of Law Office of David J. Stern, P.A., Plantation, for Appellee.

South Bay Lakes Homeowners Association, Inc., appeals an order denying its motion for attorney’s fees pursuant to section 57.105(1), Florida Statutes (2008). We conclude that the trial court abused its discretion in denying fees under the unusual circumstances of this case. Accordingly, we reverse and remand for an award of fees to be paid in equal amounts by Wells Fargo Bank, N.A., and its attorneys.

Kosta and Ljubica Jankovski obtained a loan, secured by a mortgage, to purchase a home in Hillsborough County in 2005. The documents in our record show the lender as Beazer Mortgage Corporation. Allegedly, the Jankovskis defaulted on the loan.

In March 2009, the Law Offices of David J. Stern, P.A., filed a mortgage foreclosure action on behalf of Wells Fargo, naming the Jankovskis and South Bay Lakes Homeowners Association as parties. The complaint alleged that Wells Fargo filed the action “by virtue of an assignment to be recorded.” As is common in recent foreclosure actions, the complaint contained a second count to enforce a lost, destroyed, or stolen promissory note.

The complaint itself does not contain a legal description of the property on which Wells Fargo sought to foreclose. It alleges a recorded mortgage on January 18, 2006, and a modification on July 13, 2006. The mortgage identified the relevant property as Lot 6, Block 7, Valhalla Phase 3-4. The modification changed the description to Lot 60, Block 2, South Bay Lakes, Unit # 2. The notice of lis pendens that Wells Fargo recorded when it commenced this action identified the property it sought to foreclose as the original description and not the modified description. The property described in the modification is within South Bay Lakes Homeowners Association. However, the property described in the lis pendens and the original mortgage is not within the association.

The Jankovskis did not file a formal answer. Instead, they submitted a letter claiming that they disputed the amount owed and were trying to resolve the matter with America’s Servicing Company.

South Bay Lakes Homeowners Association filed an answer disputing that Wells Fargo had standing to bring the action, raising other defenses, and pointing out the confusion associated with the legal description. It also served the attorneys for Wells Fargo with requests for admission, asking the bank to admit that it did not have an assignment of the mortgage in its possession or recorded in Hillsborough County. One of the requests for an admission asked Wells Fargo to admit that it had no documentary evidence to show that it was an equitable owner of the note and mortgage. Wells Fargo did not respond to the requests for admission.

In May 2009, South Bay Lakes Homeowners Association filed a motion for summary judgment based on the admissions. At the same time, the attorney for the association filed an affidavit explaining that he had searched the public records and had not found an assignment of the mortgage. He also explained that the description on the lis pendens was not the encumbered property. Finally, the association served, but did not file, a motion for attorney’s fees pursuant to section 57.105 in order to give the bank an opportunity to resolve the matter within the statutory twenty-one-day period. The bank took no action.

On July 29, 2009, the attorney for the association attended the hearing on its motion for summary judgment. Wells Fargo made no appearance. Based on the admissions and the affidavit, the trial court entered a final judgment dismissing the entire action without leave to amend.

Thereafter, the association filed its motion for attorney’s fees and scheduled a hearing for November 2009. Wells Fargo sent a local attorney, who had not reviewed the file, to the hearing. He had “no idea” whether the legal description in the complaint had been inaccurate. The trial court denied the motion for fees, reasoning that some lender was entitled to file an action to foreclose on the parcel described in the modification and owned by the Jankovskis and that the action was, therefore, not one entitling the association to attorney’s fees. The association has appealed that order.

The issue in this case is not whether the owners would have been entitled to attorney’s fees. Instead, the issue is the association’s entitlement to fees. It is noteworthy, however, that the owners were the prevailing party in this action by virtue of the efforts of the association’s attorney. By contract, the owners would have been entitled to recover fees in this case if the prevailing attorney had been their attorney.

In this case, it is undisputed that Wells Fargo filed a foreclosure action without an assignment or other legal basis to file the action. Nothing in the record suggests that it or its attorneys took any steps to confirm that Wells Fargo had the legal right to file this action. It has relied on the association’s attorney to perform the legal research and public records examination that its own attorney should have performed before it filed the action.

We emphasize that a failure to respond to a request for admissions is not automatically grounds for attorney’s fees. In this case, however, the bank never attempted to explain why it admitted that it lacked standing, and there is no reason to believe that it had standing to bring the lawsuit. The bank also never sought to be relieved from its admissions and did not seek rehearing of the judgment that the trial court entered at a hearing it declined to attend.

At oral argument, the bank’s attorney tried to justify this improper filing due to the vast volume of foreclosure cases in the judicial system. While this court is well aware of the volume of these cases, that circumstance is not a matter that relieves the bank and its attorneys of their obligation to file pleadings that are adequately supported by a reasonable investigation prior to suit. If anything, the volume of these cases and the obvious detrimental effect that such volume has upon the legal system should be a factor requiring attorneys who file the actions to engage in a higher degree of professionalism.¹

Section 57.105 entitles a party to attorney’s fees if the losing party, or the losing party’s attorney, knew or should have known that a claim was not supported by the material facts necessary to establish the claim when the party initially presented the claim to the court or at any time before trial. At a minimum, the association established a prima facie case that the bank or its attorneys knew or should have known that the bank had no standing to bring this lawsuit before the association served its motion for attorney’s fees. See, e.g., Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.”); Bank of New York v. Williams, 979 So.2d 347, 348 (Fla. 1st DCA 2008) (awarding the defendant attorney’s fees after dismissing a residential foreclosure complaint because the mortgagor failed to prove it owned the note and mortgage). If the bank or its attorneys had any evidence to refute this claim, they did not present that evidence at the hearing on the motion for attorney’s fees. The undisputed facts at the hearing established that Wells Fargo was required to take a voluntary dismissal of this action or some other appropriate action during the allotted twenty-one days and that it had no right to compel the association to proceed to judgment on the motion for summary judgment.

Although the trial court has discretion in awarding fees under section 57.105, we conclude that the trial court abused its discretion when it declined to award fees in these circumstances.

Reversed and remanded.

FOOTNOTES

1.  At oral argument, the bank’s attorney claimed for the first time that the association’s attorney had not served the requests for admissions on the bank’s law firm and that the trial court had not properly served the judgment on the law firm. These unsworn allegations more than a year after the entry of the final judgment are outside the record and otherwise entirely improper.

ALTENBERND, Judge.

DAVIS and VILLANTI, JJ., Concur.

[MATTHEW WEIDNER LAW]

I know exactly what you’re thinking. Will Equifax face the same fate the hackers did for security breach?

HuffPO-

Financial information is considered by most to be very private, but that isn’t stopping one credit reporting agency from sharing it without your knowledge, according to a report by NBC News.

Equifax, one of the nation’s largest credit reporting agencies with one of the most expansive private databases of information, has accumulated the salary and employment records of more than one-third of U.S. adults, according to NBC. In turn, the agency has sold some of this information to debt collectors and other financial service companies. That data can make debt collectors’ jobs easier by giving them access to information individuals thought only their employers knew.

“It’s the biggest privacy breach in our time,” Robert Mather of Pre-Employ.com, an employment background company, told NBC.

[HUFFINGTON POST]

image: Experian.com

Everyone knows by now the government is a disaster. The games they play with the neither admit nor deny crap.

Rolling Stone-

A few more things about Mary Jo White, the former prosecutor and corporate lawyer recently chosen by Barack Obama to head the SEC. Last week, I wrote about White’s involvement in the notorious Gary Aguirre episode, wherein the former U.S. Attorney and then-partner at the hotshot white-shoe defense firm Debevoise and Plimpton helped squelch then-SEC investigator Aguirre’s insider trading case against future Morgan Stanley CEO John Mack.

[ROLLINGSTONE]

Naked Capitalism-

As we described in earlier posts in this series (Executive Summary, Part II, Part IIIA and Part IIIB), OCC/Federal Reserve foreclosure reviews meant to provide compensation to abused homeowners were abruptly shut down at the beginning of January as the result of a settlement with ten major servicers. Whistleblowers from the biggest, Bank of America, provide compelling evidence that the bank and its independent consultant, Promontory Financial Group, went to considerable lengths to suppress any findings of borrower harm.

These whistleblowers, who reviewed over 1600 files and tested hundreds more in the attenuated start up period, saw abundant evidence of serious damage to borrowers. Their estimates vary because they performed different tests and thus focused on different records and issues. When asked to estimate the percentage of harm and serious harm they found, the lowest estimate of harm was 30% and the majority estimated harm at or over 90%. Their estimates of serious harm ranged from 10% to 80%.

We found four basic problems:

The reviews showed that Bank of America engaged in certain types of abuses systematically

The review process itself lacked integrity due to Promontory delegating most of its work to Bank of America, and that work in turn depended on records that were often incomplete and unreliable. Chaotic implementation of the project itself only made a bad situation worse

Bank of America strove to suppress and minimize evidence of damage to borrowers

Promontory had multiple conflicts of interest and little to no relevant expertise

We discuss the third major finding below.

[NAKED CAPITALISM]

Go here for the audit results: Full 177 Page Report | Audit reveals $1 million revenue loss in Williamson County due to MERS

.

Does MERS Have Standing to Foreclose?: Neighborly Advice from Michigan to Illinois

January 31, 2012

Abstract:     

If one purchased real property during the last two decades with a loan from a trusted local bank, there is a good chance that bank is no longer listed in real property records as the legal holder of the loan. In fact, the chances are greater than one in two that a single Delaware corporation purports to be the legal holder of the mortgage securing that loan. As of October 2010, approximately sixty percent of all mortgage contracts in the United States appear in local records as being owned by Mortgage Electronic Registration System, Inc. (“MERS”). In total, this percentage equates to approximately sixty-five million mortgage loans. While the size of these numbers may be astounding, one can still expect the percentage, as well as the absolute number, of American homes registered under MERS’s corporate name to rise.

Considering the pervasiveness of MERS in the national real estate market, this Comment examines the legal implications of MERS’ role in the ownership of financial instruments fundamental to loan origination and subsequent loan repayment or foreclosure, and proposes a revised analysis of a leading Illinois case on the subject in light of the persuasive theory of loan notes and mortgage contracts as separate documents expressed by Michigan appellate courts. In order to provide an adequate perspective on the matter, Part I of this Comment gives a brief history of the mortgage recordation process, a description of how MERS operates, as well as a brief explanation of the traditional mortgage recordation and foreclosure practices in Michigan and Illinois. Part II considers two recent Michigan court cases, Residential Funding Co., LLC v. Saurman and Richard v. Schneiderman & Sherman, P.C., that reject MERS’ right to foreclose by advertisement, holding that MERS is the only the legal holder of the mortgage, and thus it has no right to the mortgage indebtedness. Part III will also examine an Illinois case, Mortgage Electronic Registration System, Inc. v. Barnes, in which an appellate court held that MERS did in fact have standing to bring a judicial foreclosure. Then, Part III will discuss why the Michigan cases were decided correctly, and will examine the reasoning in Barnes, providing an analysis in line with the Michigan cases’ theory of MERS’ loan and mortgage contract ownership which would deny MERS standing to foreclose upon a homeowner because it does not have an interest in the indebtedness. Part IV will recommend that, in an expectant future suit, Illinois courts should disallow MERS, Inc. from bringing judicial foreclosure proceedings because it lacks standing to bring such a suit, taking into account legal standing questions, legal formality, and homeowner protection rationales.

[…]

Via- Capitalism Without Failure

Jaime Falcon

Lanny Breuer appearing on the PBS production of The Untouchables

.

Via- Dave Krieger – CloudedTitles.com

UPDATED to post the Audit.

——-

NEWS RELEASE
Contact: Connie Watson

FOR IMMEDIATE RELEASE
512-943-1663 (office)
512-844-3542 (cell)

COUNTY CLERK CONDUCTS AUDIT OF REAL PROPERTY RECORDS

January 24, 2013 (Williamson County, TX) –Williamson County Clerk Nancy Rister has had an audit conducted of the County’s Official Public Records (OPR). This audit is the first of its type for the State of Texas; however, these audits have been conducted in other states.

The County hired DK Consultants out of San Antonio to perform the audit last October. The process took one week to audit official public records including trustees’ deeds, deeds, assignments of deed of trust, and other documents. On Tuesday, January 29, 2013, the Williamson County Commissioners Court will hear a presentation of the findings of the real property records audit during its regular court meeting starting at 9:30 a.m. in the Commissioners Courtroom on the second floor of the historic county courthouse, 710 S. Main Street, in Georgetown.

“During the audit, they are reviewing the documents for errors created by third party document manufacturers which can create a chain of title problem,” stated County Clerk Nancy Rister. “These errors are violations of state law and will be referred to the Attorney General’s Office.” The results of the audit revealed hundreds of issues involving suspect robosigning, suspect surrogate signing, suspect notary fraud and suspect forgery.

The Williamson County Clerk’s Office estimates that it has lost more than $957,000 because of documents that have not been recorded and should have been according to Texas law.

In addition, the public is being victimized by the lack of accurate records and in some cases the loss of their home. The OPR audit cost $12,500 and was paid for from the County Clerk’s records management fund. In addition, County Clerk Nancy Rister pointed out that some of these issues can be detected through Property Fraud Alert Software recently purchased and available on the Clerk’s website.

The new software allows Williamson County residents to sign up for notifications if documents are filed in Official Public Records with their names on them.

###

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This all rings familiar from back in 2010 – WANTED: COUNTRYWIDE’S “I-PORTAL”,”C-SAD”, “AS400” INFORMATION

Naked Capitalism-

This post is the second half of Part III in our Bank of America foreclosure review whistleblower series. Part III focuses on how the confusion and high cost of the foreclosure reviews weren’t simply the result of overly ambitious targets and poor design, oversight, and implementation of the reviews. These reviews never could have been done properly due to significant gaps and inaccuracies in the borrower records at Bank of America. That meant the only possible course of action was a cover-up.

Here we’ll discuss:

“Garbage in-garbage out” problem of unintegrated, unreliable records

“Fire, aim, ready” approach to launching the tests

“Garbage in-garbage out” problem of unintegrated, unreliable records

The foreclosure review revealed one of the root problems of the foreclosure crisis: unreliable, difficult to use, and in too many cases incomplete records.

[NAKED CAPITALISM]

Naked Capitalism-

As we described in earlier posts in this series (Executive Summary and Part II), OCC/Federal Reserve foreclosure reviews meant to provide compensation to abused homeowners were abruptly shut down at the beginning of January as the result of a settlement with ten major servicers. Whistleblowers from the biggest, Bank of America, provide compelling evidence that the bank and its independent consultant, Promontory Financial Group, went to considerable lengths to suppress any findings of harm to homeowners.

These whistleblowers, who reviewed over 1600 files and tested hundreds more in the attenuated start up period, saw abundant evidence of serious damage to borrowers. Their estimates vary because they performed different tests and thus focused on different records and issues. When asked to estimate the percentage of harm and serious harm they found, the lowest estimate of harm was 30% and the majority estimated harm at or over 90%. Their estimates of serious harm ranged from 10% to 80%.

We found four basic problems:

The reviews showed that Bank of America engaged in certain types of abuses systematically

The review process itself lacked integrity due to Promontory delegating most of its work to Bank of America, and that work in turn depended on records that were often incomplete and unreliable. Chaotic implementation of the project itself only made a bad situation worse

Bank of America strove to suppress and minimize evidence of damage to borrowers

Promontory had multiple conflicts of interest and little to no relevant expertise

[NAKED CAPITALISM]

IN THE DISTRICT COURT OF APPEAL OF FLORIDA
FIRST DISTRICT

CASE NO. 1D12-1513

JERRY COLEMAN, individually,

and

JERRY COLEMAN, P.L.
Appellants,

V.

ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND
JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

L.T. CASE NO. 2008-CA-3218

AMENDED REPLY BRIEF OF APPELLANTS TO
ANSWER BRIEF OF COUNTRYWIDE HOME LOANS, INC.

EXCERPTS:

The United States Court of Appeals for the 11th1 Circuit not long ago
decided a case dealing with facts sufficiently close in relevant respects to those we
respectfully ask this Court to resolve, Alley v. US. Dept. of Health & Human
Services, 590 F.3d 1195 (11th Cir. 2009)(citation omitted). In Alley an Alabama
resident made a Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”) request for
documents a Florida federal district court had enjoined a federal agency from
releasing pursuant to a FOIA request made 30 years earlier.

[…]

As we argued, both to this Court and below, it is undisputable that the
documents at issue are Florida public records as long as the Attorney General’s
office has them. Nat? Collegiate Athletic Ass ‘n v. Associated Press, 18 So.3d
1201 (Fla. 1st DCA 2009). And the office still possesses them.

2. THIS COURT HAS JURISDICTION TO ADDRESS EVERY
MATTER THAT COULD AFFECT THE RESOLUTION OF THE
CASE BE IT ONE RAISED BY THE PARTIES OR BY THE
COURT ON ITS OWN INITIATIVE AND IT SHOULD DO SO IN
THIS CASE

We believe this Court can readily discern which matters it should for
various reasons address now, despite Countrywide’s repeated but untrue claims
of Appellants’ “failure to preserve for appellate review” bona fide issues
presented to this Court and Countrywide’s mischaracterization that what we ask
this court to do is render an “Advisory Opinion”. See, e.g., Florida Dept. of
Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 962 (Fla,
2005)(nothing requires a court to “turn a blind eye” to the facts laid before it);
Layne v. Tribune Co., 146 So. 234, 237 (FlEa. 1933)(“What everybody knows the
courts are assumed to know, and of such matters may take judicial
cognizance”(citation omitted)). What Countrywide urges this Court to do is to
turn a blind eye to, as Marvin Gaye’s famous lyrics call it, “what’s going on”
(e.g., at best, the at best unseemly machinations below: the AG suing
Countrywide in Broward Circuit court, but Countrywide bringing the action
below to seal the relevant AG investigative records up in Leon County, away
from glare of press and public alike; a brief hearing prohibiting Chapter 119 AG
disclosure of 88,000+ pages of documents without the court ever seeing more
than a “sampling’ of whatever Countrywide brought to that hearing and just how
many documents could realistically have been reviewed in ten minutes)’what
went on’ was about as “secret[] [of a] proceeding[s]” as one can pull off in a
Florida court. See Nat’i Collegiate Athletic Ass ‘n v. Associated Press, 18 So. 3d
1201, 1214 (FIa. Dist. Ct. App. 2009). Well, so far. Countrywide mistakenly
contends that this Court lacks jurisdiction to weigh in on issues beyond simply
whether or not the lower proceeding must be reopened. This Court can and
should not hold back regarding the scenario that played out in late 2008.

[…]

Additionally, while appellate courts usually defer to a trial court’s
interpretations and many factual conclusions regarding the trial court’s own
injunctions and protective orders, “‘[t]o the extent [a trial court judge]
interpreted the terms of [an earlier] judgment, which was entered by a different
[trial] judge, we accord [the latter judge’s] interpretation no deference and
review the requirements of that judgment de novo.” Alley, supra at 1202. Here,
just as in Alley, the judge who refused to reopen the case below was not the
judge who first entered the protective order drafted by Countrywide’s counsel.
That order found almost 90,000 pages of public records to be trade secrets after
what appears to have been a 10-minute “inspection of sample records”. (R25-27)

[…]

Office of the special inspector general
For the Troubled Asset Relief Program
1801 L Street, NW, 4th Floor
Washington, D.C. 20220

SIGTARP 13-001 January 28, 2013

January 28, 2013

MEMORANDUM FOR: The Honorable Timothy F. Geithner – Secretary of the Treasury

FROM: Ms. Christy L. Romero – Special Inspector
General for the Troubled Asset Relief Program

SUBJECT: Treasury Continues Approving Excessive Pay for Top Executives at Bailed-Out Companies (SIGTARP 13-001)

We are providing this report for your information and use. It discusses Treasury’s 2012 executive compensation decisions for Top 25 employees of American International Group, Inc., General Motors Corporation, and Ally Financial Inc.

The Office of the Special Inspector General for the Troubled Asset Relief Program conducted this evaluation (engagement code 003), under the authority of the Emergency Economic Stabilization Act of 2008 and Public Law 110-343, as amended, which also incorporates the duties and responsibilities of inspectors general under the Inspector General Act of 1978, as amended.

We considered comments from the Department of the Treasury when preparing the report. Treasury’s comments are addressed in the report, where applicable.
We appreciate the courtesies extended to our staff. For additional information on this report, please contact me or Mr. Bruce Gimbel, Acting Assistant Deputy Special Inspector General for Audit and Evaluation (Bruce.Gimbel@treasury.gov / 202-927-8978).

[ipaper docId=122781701 access_key=key-12msfqscg1gwj7vsw7po height=600 width=600 /]

Courtesy of Jed Berliner, Lawyer, Bankruptcy Law Network

You’ll learn from these nine videos published by the federal government which are a good entry into a pretty scary subject.  They certainly do not substitute for sound legal advice, but they get you started on your path to a Fresh Start.

Part 1: Introduction (2:50)

What is bankruptcy? What happens in a bankruptcy case? Bankruptcy is a legal process that provides relief for individuals who can no longer pay all of their debts. If you are considering bankruptcy, this video will give you basic information about the process, the relief it offers, and how to find the legal help you may need.

Part 2: Types of Bankruptcy (4:06)

A brief review of the three main types of bankruptcy cases for individuals –– chapters 7, 11, and 13. The most common types of bankruptcy are chapter 7, which are liquidating bankruptcy, and chapter 13 cases, often used by individuals who want to catch up on past due mortgage or car loan payments and keep their assets.

Part 3: Limits of Bankruptcy (4:44)

Certain types of debt, such as child support, alimony, and most student loans, cannot be discharged in bankruptcy. Wrongful conduct may make some debts non-dischargeable. Examples of such conduct are incurring credit card charges without the intent or ability to repay, or obtaining loans using false financial information.

Part 4: Filing for Bankruptcy (3:08)

How does someone file a bankruptcy case? In order to file for bankruptcy, an individual must take a credit counseling course –– to learn about alternatives to bankruptcy –– as well as accurately complete and file a number of documents.

Part 5: Creditors’ Meeting (1:39)

Every debtor is required to appear at a creditors’ meeting conducted by a trustee who asks the debtor questions about the debtor’s financial condition and gives creditors the opportunity to do the same.

Part 6: Bankruptcy Crime (3:36)

A debtor must be honest and accurate in dealing with the court or face serious consequences, including being charged with a bankruptcy crime.

Part 7: Court Hearings (3:52)

In some cases, a debtor may be required to appear at hearings before a bankruptcy judge.

Part 8: The Discharge (1:39)

Debtors are usually able to discharge most or all of their debts. Once a debt is discharged, a creditor may not attempt to collect it from the debtor.

Part 9: Legal Assistance (5:10)

When does someone need a lawyer for a bankruptcy case? Individuals have a right to represent themselves in court, but bankruptcy is a complex area that involves many considerations –– including whether to file, what chapter to file under, and what exemptions to claim. It is important to understand all of the protections of the bankruptcy code in order to make full use of them.

Bankruptcy Law Network

Bloomberg-

A judge refused to throw out a lawsuit accusing Bank of New York Mellon of mismanaging The Salvation Army assets by investing nearly $22 million of the charity’s funds in mortgage-backed securities and other risky investments.

The Salvation Army, one of the largest U.S. charities, claims in its lawsuit that the bank didn’t abide by its obligation to invest in conservative assets and failed to take steps to protect the charity as market conditions deteriorated.

The charity, which filed the lawsuit in 2011 in New York State Supreme Court, is seeking damages for breach of fiduciary duty and other claims.

The Salvation Army must only “state a claim at this juncture, not prove it,” Justice Barbara Kapnick wrote in her Jan. 25 decision denying the bank’s motion to dismiss the breach of fiduciary duty claim.

[BLOOMBERG]

SD NY-

FOR IMMEDIATE RELEASE

Monday, January 28, 2013

Preet Bharara, the United States Attorney for the Southern District of New York, Kathryn Keneally, the Assistant Attorney General for the Justice Department’s Tax Division, and Steven T. Miller, the Acting Commissioner of the Internal Revenue Service (“IRS”) announced today that U.S. District Judge William H. Pauley III entered an order authorizing the Internal Revenue Service to issue a summons requiring UBS AG (“UBS”) to produce information about U.S. taxpayers who may hold accounts at the Swiss bank Wegelin & Co. (“Wegelin”) and other banks based in Switzerland to evade federal income taxes. Specifically, the IRS summons seeks records of Wegelin’s United States correspondent account at UBS, which will allow the United States to determine the identity of the U.S. taxpayers who hold or held interests in financial accounts at Wegelin and other Swiss financial institutions that used Wegelin’s UBS account. Wegelin pled guilty in Manhattan federal court on January 3, 2013, to conspiring with U.S. taxpayers and others to hide more than $1.2 billion in secret Swiss bank accounts and to conceal the income they generated from the IRS. As part of its guilty plea, Wegelin agreed to pay approximately $20 million in restitution to the IRS and an additional $22.05 million criminal fine. In addition, Wegelin also agreed to a civil forfeiture of $32 million, $16.2 million of which was seized and forfeited by the Government from Wegelin’s correspondent account with UBS in Stamford, Connecticut (the “Correspondent Account”) in April 2012.

Manhattan U.S. Attorney Preet Bharara said: “Today’s summons is the latest step in our efforts to identify and prosecute U.S. taxpayers who think they can evade their legal responsibility to pay taxes by secreting their money away in anonymous off-shore accounts at Wegelin and other banks, and to recover the hundreds of millions of dollars that is owed to the IRS. Wegelin’s recent guilty plea for facilitating this conduct – the first such plea by a Swiss financial institution – made it possible for us to take this step and our work continues in earnest.”

Kathryn Keneally, Assistant Attorney General for the Justice Department’s Tax Division said: “The Department of Justice will use all means available, and there are many, to pursue U.S. taxpayers who continue to attempt to evade their tax obligations by using foreign bank accounts. Today’s John Doe summons is just one of many actions that we are taking. The world is shrinking, and time is running out for taxpayers to come into voluntary compliance before either the IRS or the Justice Department finds them.”

Steven T. Miller, IRS Acting Commissioner said: “The summons provides an important tool to help with international tax enforcement efforts and detect U.S. taxpayers hiding offshore accounts to evade taxes. This effort reflects a long-term strategy by the IRS and Justice Department to break through international bank secrecy and protect our nation’s taxpayers.”

According to the Government’s Indictment and forfeiture Complaint:

Wegelin and at least two other Swiss banks used Wegelin’s Correspondent Account to covertly launder U.S. taxpayers’ funds from their undeclared accounts in Switzerland. As set forth in the papers filed with the district court, the IRS has reason to believe that these funds were transferred in a manner designed to reduce the risk of detection by U.S. authorities, so that the account holders could continue to avoid paying taxes due and owing to the IRS.

In this action, the Court granted the IRS permission to serve what is known as a “John Doe” summons on UBS. The IRS uses John Doe summonses to obtain information about possible tax fraud by individuals whose identities are unknown. This John Doe summons directs UBS to produce records identifying U.S. taxpayers with accounts at Wegelin and other Swiss banks that used Wegelin’s Correspondent Account. Wegelin has admitted that certain of its U.S. taxpayer clients were maintaining accounts at Wegelin in order to evade their U.S. tax obligations.

Federal tax law requires U.S. taxpayers to pay taxes on all income earned worldwide. U.S. taxpayers must also report foreign financial accounts if the total value of the accounts exceeds $10,000 at any time during the calendar year. A deliberate failure to report a foreign account can result in a penalty of up to 50 percent of the amount in the account at the time of the violation.

*                      *                      *

This case is being handled by the Office’s Tax and Bankruptcy Unit. Assistant U.S. Attorney Natalie N. Kuehler is in charge of this case.

13-033

U.S. v. Wegelin & Co. Signed Order

U.S. v. Wegelin & Co. Notice of Petition

U.S. v. Wegelin & Co. Memo of Law in Support of Petition

Kiger Declaration

U.S. v. Wegelin & Co. Exhibit A – S1 Indictment

U.S. v. Wegelin & Co. Exhibit B – Forfeiture Complaint

U.S. v. Wegelin & Co Exhibit C – Plea Agreement

U.S. v. Wegelin & Co. Exhibit D – Guilty Plea Transcript

U.S. v. Wegelin & Co Exhibit E – Summons

Via: http://www.justice.gov/usao/nys/

PBS FrontLine-

One year after President Obama launched a new task force to investigate fraud during the subprime mortgage crisis, a co-chair of the group says a desire is now growing among prosecutors for a more aggressive response to the meltdown.

New York Attorney General Eric Schneiderman says there is little question fraud played a role in the 2008 financial crisis. In October, his office filed the task force’s first case, a civil suit alleging “a systemic fraud on thousands of investors” by JPMorgan Chase between 2005 and 2007.

As FRONTLINE reported in The Untouchables, the case also marked the government’s first major fraud suit against a Wall Street bank for the crisis.

“I think what we’ve expanded and what we have done is to increase the appetite for these broader-platform cases that address systemic patterns of fraud rather than going on a deal-by-deal basis,” Schneiderman told FRONTLINE correspondent Martin Smith. “I think that’s a huge step … And that’s what we are seeking accountability for, and that’s what we’ll continue to pursue.”

[FRONTLINE]