These judges thought this was an unfair settlement for consumers and get this, all class members would also release Midland from any future lawsuits related to affidavits.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
MARTHA VASSALLE; JEROME JOHNSON; HOPE FRANKLIN; ANDREA BRENT, Plaintiffs-Appellees,
ROBERT CLAWSON, CHRISTOPHER GUEST, and MANUELA RIVERA (11-3961); KELLI GRAY (11-4016); LADON HERRING, GILBERT JAMES, and ANN RUBIO (11-4019), Objectors-Appellants,
ELAINE PELZER (11-3814 and 11-4021), Intervenor-Appellant,
v.
MIDLAND FUNDING LLC;MIDLAND CREDIT MANAGEMENT, INC.; ENCORE CAPITAL GROUP, INC., Defendants-Appellees.
—————-
Appeal from the United States District Court for the Northern District of Ohio at Toledo.
No. 3:11-cv-00096—David A. Katz, District Judge.
Argued: October 2, 2012
Decided and Filed: February 26, 2013
Before: MOORE and COLE, Circuit Judges; and ROSE, District Judge.*
______________ COLE, Circuit Judge. Midland Funding LLC, Midland Credit Management, Inc., and Encore Capital Group, Inc., the defendants-appellees, along with four plaintiffsappellees, Andrea Brent, Martha Vassalle, Jerome Johnson, and Hope Franklin, sought approval in district court of a nationwide class settlement that settled three related lawsuits. The district court certified the class and approved the settlement. Eight objectors-appellants objected to the settlement, arguing that the settlement was unfair, unreasonable, and inadequate, that the district court abused its discretion in certifying the nationwide settlement class, and that the notice to prospective class members did not satisfy due process. For the following reasons, we REVERSE the district court’s order approving the settlement, VACATE the judgment certifying the nationwide settlement class and the award of attorney fees, and REMAND for further proceedings consistent with this opinion.
[…]
The settlement provided for both monetary and injunctive relief. Midland agreed to pay $5.2 million into a common fund for the benefit of the class. From this fund, class counsel would receive attorney fees of no more than $1.5 million, and the costs of administration. From the remainder of the fund, eligible class members who timely returned a claim form would receive payments of $10.00 each. In fact, however, the response rate was such that each class member would receive $17.38. In addition, the four named plaintiffs were to receive $8,000 collectively.
footnote 11. We have not had occasion to fully analyze whether the nonjudicial foreclosure act, on its face or as applied, violates article I, section 3 of our state constitution’s command that “[n]o person shall be deprived of life, liberty, or property, without due process of law.”
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DIANNE KLEM, as Administrator of the Estate of Dorothy Halstien,
Petitioner,
v.
WASHINGTON MUTUAL BANK, a Washington Corporation,
Defendant,
QUALITY LOAN SERVICE CORPORATION OF WASHINGTON, a Washington Corporation; and QUALITY LOAN SERVICE CORPORATION, a California Corporation,
Respondents.
CHAMBERS, J. * -Dorothy Halstien, an aging woman suffering from dementia, owned a home worth somewhere between $235,000 and $320,000. At about the time she developed dementia, she owed approximately $75,000 to Washington Mutual Bank (WaMu ), secured by a deed of trust on her home. Because of the cost of her care, her guardian did not have the funds to pay her mortgage, and Quality Loan Services (Quality), acting as the trustee of the deed of trust, foreclosed on her home. On the first day it could, Quality sold her home for $83,087.67, one dollar more than she owed, including fees and costs. A notary, employed by Quality, had falsely notarized the notice of sale by predating the notary acknowledgment. This falsification permitted the sale to take place earlier than it could have had the notice of sale been dated when it was actually signed.
[…]
Before the foreclosure sale, Halstien’s court appointed guardian secured a signed purchase and sale agreement from a buyer willing to pay $23 5, 000 for the house. Unfortunately, there was not enough time before the scheduled foreclosure sale to close the sale with that buyer. In Washington, the trustee has the discretion to postpone foreclosure sales. This trustee declined to consider exercising that discretion, and instead deferred the decision to the lender, WaMu. Despite numerous requests by the guardian, WaMu did not postpone the sale. A jury found that the trustee was negligent; that the trustee’s acts or practices violated the Consumer Protection Act (CPA), chapter 19.86 RCW; and that the trustee breached its contractual obligations. The Court of Appeals reversed all but the negligence claim. We reverse the Court of Appeals in part and restore the award based upon the CPA. We award the guardian reasonable attorney fees and remand to the trial court to order appropriate injunctive relief.
[…]
This notice of sale was one of apparently many foreclosure documents that were falsely notarized by Quality and its employees around that time. There was considerable evidence that falsifying notarizations was a common practice, and one that Quality employees had been trained to do. While Quality employees steadfastly refused to speculate under oath how or why this practice existed, the evidence suggests that documents were falsely dated and notarized to expedite foreclosures and thereby keep their clients, the lenders, beneficiaries, and other participants in the secondary market for mortgage debt happy with their work. Ott acknowledged on the stand that if the notice of sale had been correctly dated, the sale would not have taken place until at least one week later.
[…]
By contrast, Ott, representing Quality as trustee in this case, testified that he did not take into account whether the house was worth more than the debt when conducting foreclosures. When asked why, Ott responded, “My job was to process the foreclosure … according to the state statutes.” VRP (Jan. 19, 2010) at 348. When pressed, Ott explained that he counted the days, prepared the forms, saw they were filed, and nothing more. He acknowledged that, prior to 2009, he would sometimes incorrectly date documents. He testified that he had been trained to do that. He also testified that Quality, as trustee, would not delay trustee sales without the lender’s permission. And he testified that he had never actually read Washington’s deed of trust statutes.5
[…]
We hold that the act of false dating by a notary employee of the trustee in a nonjudicial foreclosure is an unfair or deceptive act or practice and satisfies the first three elements under the Washington CPA.
The trustee argues as a matter of law that the falsely notarized documents did not cause harm. The trustee is wrong; a false notarization is a crime and undermines the integrity of our institutions upon which all must rely upon the faithful fulfillment of the notary’s oath.
The trustee argues as a matter of law that the falsely notarized documents did not cause harm. The trustee is wrong; a false notarization is a crime and undermines the integrity of our institutions upon which all must rely upon the faithful fulfillment of the notary’s oath. There remains, however, the factual issue of whether the false notarization was a cause of plaintiffs damages. That is, of course, a question for the jury. Wash. State Physicians Ins. Exch. & Ass ‘n v. Fisons Corp., 122 Wn.2d 299,314,858 P.2d 1054 (1993) (citing Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 753-56, 818 P.2d 1337 (1991)). We note that the plaintiff submitted evidence that the purpose of predated notarizations was to expedite the date of sale to please the beneficiary. Given the evidence that if the documents had been properly dated, the earliest the sale could have taken place was one week later. The plaintiff also submitted evidence that with one more week, it was “very possible” Puget Sound Guardians could have closed the sale. This additional time would also have provided the guardian more time to persuade WaMu to postpone the sale. But given that the trustee’s failure to fulfill its fiduciary duty to postpone the sale, there is sufficient evidence to support the juries CPA violation verdict, and we need not reach whether this deceptive act was a cause of plaintiffs damages.16
Bank of America Corp (BAC.N) said in a securities filing Thursday that the New York State Attorney General is investigating the bank over the purchase, securitization and underwriting of home loans and mortgage-backed securities.
The second-largest U.S. bank said it was cooperating with the investigation and other similar inquiries. A Bank of America spokesman declined to comment beyond the filing.
Residential Capital LLC, the mortgage subsidiary of government-owned lender Ally Financial Inc., wants a bankruptcy judge’s assurance that the Federal Reserve and other government agencies can’t force it to continue conducting foreclosure reviews under a 2011 agreement.
ResCap, also known as GMAC Mortgage, says its costs for conducting independent reviews of foreclosures on borrowers is skyrocketing as the timeframe for reviews has been extended, depleting potential recoveries for creditors. ResCap also argues its obligations under the agreement should be treated as an unsecured claim in its Chapter 11 bankruptcy, according to a filing in U.S. Bankruptcy Court on Wednesday.
A recent study confirmed that control fraud was endemic among our most elite financial institutions: Asset Quality Misrepresentation by Financial Intermediaries: Evidence from RMBS Market. Tomasz Piskorski, Amit Seru & James Witkin (February 2013) (“PSW 2013”).
The key conclusion of the study is that control fraud was “pervasive.”
[A]lthough there is substantial heterogeneity across underwriters, a significant degree of misrepresentation exists across all underwriters, which includes the most reputable financial institutions.
Finance scholars are not known for their sense of humor, but the irony of calling the world’s largest and most harmful financial control frauds our “most reputable” banks is quite wondrous. The point the financial scholars make is one Edwin Sutherland emphasized from the beginning when he announced the concept of “white-collar” crime. It is the officers who control seemingly legitimate, elite business organizations that pose unique fraud risks because we are so loath to see them as frauds.
Flips.No-Look Bids.300 Percent Returns.What Could Possibly Go Wrong?
UPDATE — Bloomberg Businessweek editor Josh Tyrangiel says: “Our cover illustration last week got strong reactions, which we regret. Our intention was not to incite or offend. If we had to do it over again we’d do it differently.”
Joint Release Board of Governors of the Federal Reserve System Office of the Comptroller of the Currency
.
.
For immediate release
February 28, 2013
.
Amendments to Consent Orders Memorialize $9.3 Billion Foreclosure Agreement
WASHINGTON–The Office of the Comptroller of the Currency (OCC) and the Federal Reserve Board today released amendments to their enforcement actions against 13 mortgage servicers for deficient practices in mortgage loan servicing and foreclosure processing. The amendments require the servicers to provide $9.3 billion in payments and other assistance to borrowers.
The amendments memorialize agreements in principle announced in January with Aurora, Bank of America, Citibank, Goldman Sachs, HSBC, JPMorgan Chase, MetLife Bank, Morgan Stanley, PNC, Sovereign, SunTrust, U.S. Bank, and Wells Fargo. The amount includes $3.6 billion in cash payments and $5.7 billion in other assistance to borrowers such as loan modifications and forgiveness of deficiency judgments.
Borrowers covered by the amendments include 4.2 million people whose homes were in any stage of the foreclosure process in 2009 or 2010 and whose mortgages were serviced by one of the companies listed above. These borrowers are expected to be contacted by the Paying Agent–Rust Consulting, Inc.–by the end of March 2013 with payment details. The Paying Agent will send payments and correspondence.
Borrowers covered by the amendments are expected to receive compensation ranging from hundreds of dollars up to $125,000. Borrowers are not required to take any additional steps to receive the payments. In addition, borrowers will not be required to execute a waiver of any legal claims they may have against their servicer as a condition for receiving payment.
Borrowers can call the Paying Agent at 1-888-952-9105 to update their contact information or to verify that they are covered by the amendments.
In providing the $5.7 billion in assistance, the 13 servicers are expected to undertake well-structured loss mitigation efforts focused on foreclosure prevention, with preference given to activities designed to keep borrowers in their homes through affordable, sustainable, and meaningful home preservation actions.
Borrowers seeking assistance should work directly with their servicer or a counselor approved by the U.S. Department of Housing and Urban Development (HUD). Borrowers can reach HUD-approved counselors by calling 888-995-HOPE (4673).
OCC and Federal Reserve examiners continue to monitor the servicers’ implementation of corrective actions required by the original enforcement actions to address unsafe and unsound mortgage servicing and foreclosure practices.
For the 13 servicers, these amendments to the enforcement actions replace the requirements related to the Independent Foreclosure Review. For GMAC Mortgage, Everbank, and OneWest, which did not enter agreements in principle with federal regulators, the Independent Foreclosure Review process continues. Regulators expect the reviews for these servicers to be completed over the course of the coming year. These companies service 457,000 mortgages that were in some stage of foreclosure in 2009 or 2010.
S 1218 Residential Foreclosure Proceedings– Senator Soto and Representative Jose Rodriguez (D-Miami) Last Action: 02/27/2013 S Filed
Residential Foreclosure Proceedings; Citing this act as the “Florida Mortgage Collection Fairness Act”; prohibiting a mortgage collection firm from offering false evidence in a mortgage foreclosure proceeding; providing that a violation is a deceptive and unfair trade practice; providing penalties and remedies; providing for the award of attorney fees and costs under certain circumstances, etc.
Last Action: 02/27/2013 Filed
Effective Date: July 1, 2013
S 1226 Homestead Foreclosure Relief Last Action: 02/27/2013 S Filed
Homestead Foreclosure Relief; Providing for application to homestead property mortgaged within a certain time period; providing a statute of limitations for entering a deficiency judgment; limiting the time period the lienholder can collect moneys owed; providing that the collection time may be tolled if the debtor commits fraud or if the debtor is held in contempt of court, etc.
Last Action: 02/27/2013 Filed
Effective Date: July 1, 2013
S 1228 Short Sale Debt Relief Last Action: 02/27/2013 S Filed
Short Sale Debt Relief; Creating the “Short Sale Debt Relief Act”; providing that a debtor does not owe a deficiency to a lienholder related to an eligible real property sold pursuant to a bona fide short sale if an offer is received by a debtor within a specified time period and under specified conditions; requiring a lienholder to approve the short sale of property and execute any document necessary to close the sale within a specified time period if a debtor procures a buyer who makes an offer in writing equal to the fair market value of the eligible property, etc.
Last Action: 02/27/2013 Filed
Effective Date: July 1, 2013
S 1236 Mortgage Principal Reduction Program Last Action: 02/27/2013 S Filed
Mortgage Principal Reduction Program; Creating the “Mortgage Principal Reduction Act”; requiring that the Florida Housing Finance Corporation apply to the United States Department of the Treasury by a specified date to request funds not to exceed a specified amount from the federal Hardest-Hit Fund program to establish a new state program to reduce the principal on mortgages for persons whose homestead property in this state is in foreclosure; requiring the corporation to use the allocated funds to purchase delinquent mortgages on such property from lenders at a discount to reduce the mortgage principal amount due on the mortgage, etc.
IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA
JAMES K. LINDSEY, Appellant,
v.
WELLS FARGO BANK, N.A., AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2007-OPT1, JULIE ANN MACDONALD UNKNOWN, SPOUSE OF JULIE ANN MACDONALD; COUNTY CREEK V111 HOMEOWNERS ASSOCIATION, INC.; UNKNOWN PERSON(S) IN POSSESSION OF THE SUBJECT PROPERTY, Appellees.
Opinion filed February 27, 2013.
An appeal from the Circuit Court for Duval County.
Michael R. Weatherby, Judge.
Jay B. Watson and Joshua T. Kaleel of The Law Office of Jay B. Watson, P.A., Jacksonville, for Appellant. H. Michael Muniz of Kahane & Associates, P.A., Plantation, for Appellee Wells Fargo Bank, N.A., As Trustee for the Certificateholders of Soundview Home Loan Trust 2007-OPT1.
WETHERELL, J.
James K. Lindsey appeals the final summary judgment entered in favor of Wells Fargo Bank in this mortgage foreclosure case. We reverse and remand for further proceedings because Wells Fargo failed to establish its standing to foreclose and, likewise, failed to refute Lindsey’s affirmative defense contesting Wells Fargo’s standing.
In March 2007, Lindsey executed and delivered a promissory note to Option One Mortgage. The note was secured by a mortgage on property owned by Lindsey in Duval County. Lindsey stopped making payments on the note in January 2009, and he was thereafter given due notice that he was in default on his obligations under the note.
On April 2, 2009, Wells Fargo filed a complaint to foreclose the mortgage in which it alleged that it “owns and holds the Note and Mortgage or is a person entitled to enforce the Note.” The copy of the note and mortgage attached to the complaint named Option One as the lender and mortgagee. Wells Fargo subsequently filed the original note with the court along with an Assignment of Mortgage dated April 10, 2009, showing the transfer of the mortgage from Option One to Wells Fargo effective March 26, 2009. The Assignment of Mortgage did not purport to transfer the note, and the original note filed with the court did not include a special endorsement to Wells Fargo or a blank endorsement.
Lindsey answered the complaint in due course. The answer specifically denied the allegation that Wells Fargo owns and holds the note and mortgage. The answer also raised several affirmative defenses, including a claim that Wells Fargo lacked standing because it did not own the note and mortgage when the foreclosure complaint was filed.1 Wells Fargo filed a motion to strike this defense as baseless, but the trial court denied the motion.
In February 2012, Wells Fargo moved for summary judgment. In support of the motion, Wells Fargo filed affidavits attesting to Lindsey’s payment history, the default letter sent to Lindsey, the total amount owed on the note, and the attorney’s fees and costs incurred in this action. The affidavits did not attest to Wells Fargo’s ownership of the note. Wells Fargo did file a “Certification of Compliance” form completed by its attorney stating that Wells Fargo “holds the note and the rights there under through assignment by the previous note holder” and indicating that the original note had been filed with the court; however, the form was unsworn and the space provided on the form for the date the purported note assignment was filed with the court was blank.
Wells Fargo asserted in its motion for summary judgment that the affirmative defense challenging its standing was legally insufficient because the note was a “bearer instrument” that Wells Fargo was entitled to enforce as the holder of the note. The argument in support of the motion (which simply incorporated by reference the argument in Wells Fargo’s previously denied motion to strike Lindsey’s affirmative defenses) relied heavily on Riggs v. Aurora Loan Services, LLC, in which the court explained that “possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.” See 36 So. 3d 932, 933 (Fla. 4th DCA 2010) (emphasis added).
On April 10, 2012, following a hearing on Wells Fargo’s motion for summary judgment, the trial court entered a Final Judgment of Mortgage Foreclosure. 2 The judgment made no findings on Wells Fargo’s standing, but by virtue of the relief granted, the court necessarily found that Wells Fargo had the requisite standing to initiate and maintain this action. The judgment set the foreclosure sale for the property secured by the note for June 4, 2012, but upon Lindsey’s motion, the trial court stayed the sale pending this appeal.
We review the trial court’s ruling on a motion for summary judgment de novo. See Chen v. Whitney Nat’l Bank, 65 So. 3d 1170, 1172 (Fla. 1st DCA 2011). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Id. The party seeking summary judgment must also factually refute any affirmative defenses or establish that they are legally insufficient. Id.; see also Thomas v. Ocwen Loan Servicing, LLC, 84 So. 3d 1246 (Fla. 1st DCA 2012).
“To have standing to foreclose, it must be demonstrated that the plaintiff holds the note and mortgage in question.” Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011); see also BAC Funding Consortium, Inc. v. Jean-Jacques, 28 So. 3d 936, 938 (Fla. 2d DCA 2010). The plaintiff must have the requisite standing when the foreclosure complaint is filed. See Rigby v. Wells Fargo Bank, N.A., 84 So. 3d 1195, 1196 (Fla. 4th DCA 2012) (quoting Venture Holdings & Acquisitions Grp., LLC v. A.I.M. Funding Grp., LLC, 75 So. 3d 773, 776 (Fla. 4th DCA 2011)).
Thus, in this case, Wells Fargo had the burden to demonstrate that it held Lindsey’s note and mortgage on April 2, 2009, the date it filed its complaint for foreclosure. We agree with Lindsey that, on the record presented, summary judgment was improper because Wells Fargo did not establish its standing or refute Lindsey’s affirmative defense claiming lack of standing. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So. 3d 251, 253-54 (Fla. 2d DCA 2012) (reversing summary judgment because plaintiff failed to establish that it held the note when the foreclosure complaint was filed); Rigby, 84 So. 3d at 1196 (same); Gee v. U.S. Bank Nat’l Ass’n, 72 So. 3d 211, 213-14 (Fla. 5th DCA 2011) (same); BAC Funding Consortium, 28 So. 3d at 938 (same).
The original note names Option One (not Wells Fargo) as the lender and, contrary to Wells Fargo’s argument, the note is not a “bearer instrument” because it was payable to Option One. See § 673.1091, Fla. Stat. (2011) (defining “payable to bearer,” and distinguishing instruments that are “payable to order”). Moreover, unlike the note in the Riggs case relied on by Wells Fargo, the original note in this case was not endorsed in blank or otherwise assigned to Wells Fargo. See Gee, 72 So. 3d at 213 (explaining that if the note being sued upon in a foreclosure action does not name the plaintiff, the note must bear an endorsement in favor of the plaintiff or a blank endorsement or the plaintiff must submit evidence of an assignment of the note from the payee or an affidavit of ownership); see also § 671.201(5), Fla. Stat. (2011) (defining “bearer” as person in possession of negotiable instrument payable to such person or endorsed in blank).
The cases relied on by Wells Fargo in support of the trial court’s ruling do not sway us from our conclusion that Wells Fargo failed to establish its standing to foreclose; the cited cases are factually distinguishable from this case. In Taylor v. Deutsche Bank National Trust Company, 44 So. 3d 618 (Fla. 5th DCA 2010), for example, the note included the same language as the note in this case: “I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under the Note is called the ‘Note Holder.’” But, unlike this case, the summary judgment evidence in Taylor included a document assigning Deutsche Bank the original lender’s interest in both the mortgage and the note. Id. at 621. It was the assignment of the note, not the “note holder” language in the note, that gave Deutsche Bank standing to foreclose. Id. at 623. Similarly, in Harvey v. Deutsche Bank National Trust Company, 69 So. 3d 300, 304 (Fla. 4th DCA 2011), the court held that the bank had standing to foreclose because it had possession of the original note that had been endorsed in blank. Likewise, in Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1117-18 (Fla. 2d DCA 2011), the court held that the plaintiff had standing to foreclose even without a written assignment of the mortgage because the mortgage follows the note and, as reflected in an allonge, the note was “endorsed without recourse” to the plaintiff prior to the filing of the foreclosure complaint.
Here, Wells Fargo filed a document showing that the mortgage was assigned to it by Option One. The document did not, however, assign the note. Moreover, even if the document could somehow be construed to have also assigned the note, it would raise a disputed issue of fact (thereby precluding summary judgment) as to whether the note was assigned before or after the foreclosure complaint was filed. See Vidal v. Liquidation Props., Inc., 38 Fla. L. Weekly D116 (Fla. 4th DCA Jan. 9, 2013); McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So. 3d 170, 173 (Fla. 4th DCA 2012); and cf. Gonzalez, 95 So. 3d at 253 (noting that because the mortgage follows the note, the date the mortgage was assigned to the plaintiff is irrelevant so long as the record demonstrates that the note was assigned to the plaintiff before the foreclosure complaint was filed).
In sum, because the evidence of record failed to establish that Wells Fargo was the holder of the note and mortgage at the time the foreclosure complaint was filed, Wells Fargo failed to prove its standing (and failed to refute Lindsey’s affirmative defense challenging its standing) and, thus, the trial court erred in entering summary judgment in favor of Wells Fargo. Accordingly, we reverse the Final Judgment of Mortgage Foreclosure and remand for further proceedings.
REVERSED and REMANDED for further proceedings.
ROBERTS and MARSTILLER, JJ., CONCUR.
Footnotes: 1 We find no merit in Wells Fargo’s argument that Lindsey waived this defense by not raising it in his motion to dismiss. First, lack of standing is not one of the issues listed in Florida Rule of Civil Procedure 1.140(b) that is waived if not raised in a motion to dismiss; it is an affirmative defense that is waived if not raised in the answer to the complaint. See Wells Fargo Bank, N.A. v. Reeves, 92 So. 3d 249, 253 (Fla. 1st DCA 2012); Phadael v. Deutsche Bank Trust Co., 83 So. 3d 893, 894 (Fla. 4th DCA 2012). Second, Wells Fargo did not argue below that the standing issue was not properly before the court because the issue was not raised in Lindsey’s motion to dismiss, but rather it argued that the issue was refuted by its summary judgment evidence. Third, because Lindsey’s answer denied the allegation in the complaint that Wells Fargo owns and holds the note, Wells Fargo had the burden to establish that it was the owner and holder of the note in order to obtain summary judgment. See Lizio v. McCullom, 36 So. 3d 927, 929 (Fla. 4th DCA 2010) (“Where the defendant denies that the party seeking foreclosure has an ownership interest in the mortgage, the issue of ownership becomes an issue the plaintiff must prove.”) (citing Carapezza v. Pate, 143 So. 2d 346, 347 (Fla. 3d DCA 1962)).
2 The judgment was entered three years after the complaint was filed (and 39 months after Lindsey last made a payment on the note), but there were significant The judgment made no findings on Wells Fargo’s standing, but by periods of time – 7/18/09 to 5/13/10, 2/10/11 to 10/23/11, and 10/25/11 to 2/20/12 – during which there was inexplicably no record activity by the parties.
Every week, I am contacted by consumers presenting odd, creative and sometimes off the wall foreclosure defenses. Occasionally, some of these creative defenses have some kind of merit, but more often than not, especially in the case of most of the quiet title, copyright, admiralty and other bizarre concepts that are being sold to consumers, they are simply scams.
I have seen consumers that have been convinced to record all sorts of documents in the public records, things like, “notice of name copyright” or “notice of revocation of trustee power” or “satisfaction of mortgage” and all kinds of things that sound too good to be true and in fact are because they are not real.
Well, Florida’s Legislators, who have made it entirely clear that they will not do one single thing to punish the banks for all their fraud, their lies, their surrogate signing and robosigning and just plain old fraud, are instead turning their attention to the kinds of things that I mentioned first….while clearly ignoring all the big bank and institutional fraud. The bill they will pass this legislative session, (a bill entirely different than Florida’s new (un)Fair Foreclosure bill, could make a whole lot of pro se filings felonies.
“If judges are going to accept the spoils of big money politics, they must accept a new duty: deciding when to step aside to assure justice. After all, judges are supposed to be accountable to the Constitution, not special-interest supporters. They take an oath to deliver due process under the law without regard to who voted for them or spent the most to help elect them.”
– Justice at Stake Executive Director, Bert Brandenburg
The letter is from Barry Richard, a well-connected lawyer at Greenberg Traurig (he was part of the Bush 2000 team in Florida.) Richard attacks June Clarkson for her conduct during a meeting with his client. Specifically, he felt she was too aggressive with her questioning. In the key sentence he says:
“I have represented many clients being investigated by the Attorney General’s
Office over the past 30 years and I do not recall a single instance in which the
Office requested or subpoenaed a client for a sworn statement in a civil case of
Jan 31, 2012 – LPS is represented in the lawsuit by the law firm Snell & Wilmer LLP in Las Vegas and the firm Berger Singerman in Miami. LPS is based in …
Harry Mohney (born May 30, 1943) is the founder of Déjà Vu, a U.S. company which (as of 2006) owns about 75 strip clubs in 16 U.S. states, as well as one club …
Nevada District Judge Brent Adams has recused himself from a case for the second time after concerns that campaign money he received from one of the parties created an “appearance of impropriety.”
“If judges are going to accept the spoils of big money politics, they must accept a new duty: deciding when to step aside to assure justice. After all, judges are supposed to be accountable to the Constitution, not special-interest supporters. They take an oath to deliver due process under the law without regard to who voted for them or spent the most to help elect them.”
New evidence bearing on allegations that Attorney General Catherine Cortez Masto and her top deputies engaged in repeated and systemic prosecutorial misconduct to indict two Lender Processing Services employees is scheduled to go before Nevada’s Eighth Judicial District Court today.
Defense attorneys for the employees say photographs now submitted to the court provide “potent proof” of the falsity of sworn testimony by Masto’s former chief deputy and head criminal prosecutor in the case, John P. Kelleher — as well as the falsity of assurances that Masto’s office gave to the court.
Gary Trafford and Gerry Sheppard, two LPS title officers, were indicted by a Clark County grand jury in November 2011 on charges of so-called robo-signing “forgery,” having authorized certain LPS employees they supervised to sign the title officers’ names to legal documents.
A Nevada judge has gutted a marquee criminal complaint filed in 2011 against two mortgage lending company employees, ruling that state prosecutors improperly presented information to a grand jury to obtain an indictment in what they called a massive mortgage fraud “robosigning” scheme.
A lawyer for defendant Gary Randall Trafford on Tuesday hailed Clark County District Judge Carolyn Ellsworth’s ruling as “extraordinary” and accused Nevada Attorney General Catherine Cortez Masto and her deputies of prosecutorial misconduct.
They created the Ponzi now they have pay for the fraud….wait until MERS loses big time and I mean big time…follow the money is all I say.
No amount of money they pay will undo the millions of families that have been destroyed by the action of the banks and the government combined.
HuffPO-
A verdict delivered earlier this month by a prominent federal judge heightens the prospect that the nation’s largest financial institutions will be forced to pay as much as $250 billion to compensate investors who bought bundles of fraudulently marketed mortgage-related securities, according to financial and legal experts.
The Feb. 5 decision in New York Southern District Court issued by Judge Jed. S. Rakoff involved only one relatively minor lender: Michigan-based Flagstar Bank. Rakoff found that Flagstar had failed to disclose the real risks of the mortgages it was selling, and he ordered the lender to pay $90 million to an aggrieved insurer, Assured Guaranty Municipal Corporation.
But experts zeroed in on Rakoff’s reasoning as a potentially damaging precedent for other lenders contending with scores of similar lawsuits, many involving fraudulent assurances claims from the investors who bought mortgage-backed securities during the U.S. housing boom.
Warren: “Excuse me, though, Mr. Chairman…You did not wipe out the shareholders of the largest financial institutions, did you, the big banks?
Bernanke: “Because we didn’t have the tools…”Now we could — now we have the tools.”
…
Warren: CHAIRMAN, IS UNTIL WE DO, SHOULD THOSE BIGGEST FINANCIAL INSTITUTIONS BE REPAYING THE AMERICAN TAXPAYER THAT $83 BILLION SUBSIDY THAT THEY ARE GETTING?
I’m working on getting the video clip for you…now available
Bloomberg-
The Federal Reserve’s semi-annual testimony to Congress rarely offers any surprises, and the first day of Chairman Ben Bernanke’s appearance this week mostly fits the pattern.
Bernanke confined himself almost entirely to restating things he’s said before. He told the Senate Banking Committee that the current stance of “highly accommodative” monetary policy met the Fed’s cost-benefit test. It’s supporting a “moderate if somewhat uneven pace” of economic expansion, he said, with inflation safely anchored and other financial risks under control. He gave no sign of a near-term change in the policy.
The liveliest moment came when Senator Elizabeth Warren went after Bernanke over implicit subsidies to the banks, citing Bloomberg View calculations that the benefit of expected bailouts is more than $80 billion a year. How can that be justified, the Massachusetts Democrat asked? Whatever the exact figure, it can’t be, he said. The challenge is to attack the underlying expectations — which the Dodd-Frank Act and the reforms it will usher in should help to do.
Banksters are from Mars, Regulators are from Uranus.
How does one call a settlement appropriate when these so-called settlements clearly benefit one side and ALWAYS the one committing the fraud over and over and over…
Reuters-
A top U.S. bank regulator on Tuesday offered a lengthy defense of entering into settlements with banks, taking a swipe at critics who have questioned whether regulators are aggressive enough in taking banks to trial.
Comptroller of the Currency Thomas Curry said his agency’s main goal as a prudential supervisor is to fix problems and make sure that federal banks operate in a safe and sound manner.
“The purpose of our actions is not to punish banks or make examples of anyone,” Curry said in a speech before state attorneys general in Washington.
“We are very different from agencies like the Department of Justice, which is authorized under the law to bring actions for punitive purposes, including criminal actions, against institutions and individuals,” he said, according to prepared remarks.
Top execs from the Failed [& Fraudulent] Washington Mutual have taken on key roles at growing Vericrest Financial of Texas; also, Starbucks chairman Howard Schultz stars in a comic-book biography.
From the “If at First You Don’t Succeed” Department: DavidSchneider, who headed Washington Mutual’s home-loans unit during the peak of the mortgage bubble, was running another sizable mortgage company until this past Friday.
Though Schneider is now out, several other WaMu veterans, including former chief operating officer Stephen Rotella, are still involved with the company, Vericrest Financial of Irving, Texas.
Vericrest, wholly owned by private equity firm Lone Star, specializes in servicing subprime mortgages and delinquent or otherwise troubled loans, of the sort that WaMu became notorious for peddling. It services some 55,600 mortgages with total outstanding principal balances of $10.1 billion.
In-House Counsel’s Role in the Structuring of Mortgage-Backed Securities
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Steven L. Schwarcz, Duke Law School*** Shaun Barnes* Kathleen G. Cully**
Abstract
The authors introduce the financial crisis and the role played by mortgage-backed securities. Then describe the controversy at issue: whether, in order to own and enforce the mortgage loans backing those securities, a special-purpose vehicle “purchasing” mortgage loans must take physical delivery of the notes and security instruments in the precise manner specified by the sale agreement. Focusing on this controversy, the authors analyze (i) the extent, if any, that the controversy has merit; (ii) whether in-house counsel should have anticipated the controversy; and (iii) what, if anything, in-house counsel could have done to avert or, after it arose, to mitigate the controversy. Finally, the authors examine how the foregoing analysis can help to inform the broader issue of how in-house counsel should address complex legal transactions.
Note: This isn’t the first time this is happening for instance back in 2011. The requests, by trustees liquidating Mortgage Lenders Network USA and American Home Mortgage had to put off destroying as many as 18,000 boxes full of documents in them because the prosecutors said they may be needed as evidence in more than 50 criminal investigations. Eventually the US judge temporarily delayed the loan document shredding, the outcome is unknown.
Deadly Clear-
ATTENTION ALL NEW CENTURY MORTGAGE HOMEOWNERS AND FORECLOSURE DEFENSE ATTORNEYS: NOTICE OF MOTION TO DESTROY NEW CENTURY MORTGAGE LOAN FILES
On February 14, 2013, New Century Mortgage Liquidating Trust Trustee, Alan M. Jacobs motioned the court to allow him to destroy and abandon “certain” Mortgage Loan and Business files (Order Authorizing the Immediate Abandonmentand Destruction of Certain Mortgage Loan Files and Non-Mortgage Loan Business Files). It is so immediate that respondents have only until February 28, 2013 to answer! Click here for the Destruction of Files Motion.
Apparently, another ministerial act to eliminate evidence that New Century Mortgage failed to timely assign mortgage loans to securitized trusts. Thousands (if not millions) of New Century Mortgage loans have fraudulent assignments filed in state recordation offices across the United States – and a lot of unknowing homeowners have clouded titles that with the destruction of their files – they may never be able to sort out the truth.
Have you ever landed a new job with a private employer who bought you a $1.3 million house and paid you a bigger salary than your boss. Did you ever have an employment contract that called for awarding you a bonus of $940,000 if you could somehow advance yourself from shepherding an insolvent bank to a “full time high level position with the U.S. government or regulatory body.” How about getting a deal where your company will leverage your investment in a Cayman Islands fund by chipping in $2 for every $1 you put in and let you keep all the winnings. Did you ever refinance a mortgage loan, take out $352,195 in new cash and not have to pay a legally mandated mortgage recording tax?
I don’t know of anyone in America who has these kinds of skeletons popping out of their closets daily except the one man that President Obama continues to support for a “full time high level position” on one of the highest perches in America: his nominee, Jack Lew, for U.S. Treasury Secretary.
The Treasury Department is not some little nickel and dime operation where screaming conflicts and funny money games in your past don’t matter. It’s the Federal agency that collects the Nation’s taxes, pays the Nation’s bills, prints our currency and oversees the stability of the financial system. (And if the past is prologue, it can run the Nation into deep debt throwing money at insolvent institutions on Wall Street.) If you don’t have trust and confidence in the man running the U.S. Treasury Department, you don’t have trust and confidence in anything to do with money in America. If you follow some excruciatingly bad advice and nominate a man who can’t pass the smell test from the get-go, have the good sense to yank the nomination before your reputation follows that of the nominee.
Our calculation, in a Feb. 21 editorial, showing that the top 10 U.S. banks receive a taxpayer subsidy worth $83 billion a year has generated some, um, discussion. It’s a big number, and the subsidy is a big issue for the banks.
How did we get there? To recap, the largest banks can borrow money at a lower rate because creditors assume the government, on behalf of taxpayers, will rescue them in an emergency. In a 2012 study, two economists — Kenichi Ueda of the International Monetary Fund and Beatrice Weder di Mauro of the University of Mainz — estimated the value of that too-big-to-fail subsidy at about 0.8 percentage point. We multiplied that number by the top 10 U.S. banks’ total liabilities to come up with $83 billion a year.
Some said that we shouldn’t have used total liabilities in the calculation. A lot of those liabilities are customer deposits, the argument went. Since these are explicitly guaranteed by the Federal Deposit Insurance Corp., why would the subsidy apply to them?
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