March, 2013 | FORECLOSURE FRAUD | by DinSFLA

Archive | March, 2013

Foreclosed ‘Zombie’ Homes Exceed 300,000 Properties: Study

Foreclosed ‘Zombie’ Homes Exceed 300,000 Properties: Study

You know how this always ends…it will soon be 1,000,000 properties and then 2 etc…

The only ones that are loving this more than anyone will be the MOSQUITOES this summer.

I also predict there will be communities suing the crap out of the banksters.

HuffPO-

A national survey found 301,874 “zombie” properties dotting the U.S. landscape in which homeowners in foreclosure have moved out, leaving vacant property susceptible to vandalism and degradation.

Florida tops the list of zombie properties with 90,556 vacant homes in foreclosure, according to a foreclosure inventory released on Thursday by RealtyTrac, a real estate information company in Irvine, California.

Illinois and California ranked a distant second and third with 31,668 and 28,821 zombie properties respectively on the list.

The number of homes overall in foreclosure or bank-owned rose by 9 percent to 1.5 million properties nationally in the first quarter of 2013 compared to a year ago, according to RealtyTrac.

[HUFFINGTON POST]

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Why Are Big Banks Going To War With A Federal Judge?

Why Are Big Banks Going To War With A Federal Judge?

Because this judge isn’t corrupt like the ones they’re used to dealing with. They finally met one that knows how to apply the law.

The National Memo-

The nation’s largest banks have devised a novel way to protect their interests and save themselves from hundreds of billions of dollars in legal exposure. They’re taking a judge to court.

Lawyers for 17 banks submitted an unusual filing in the Second Circuit Court of Appeals this week (just listing all the corporate lawyers involved takes up the first four pages). The banks – including JPMorgan Chase, Bank of America, Wells Fargo, Goldman Sachs, Citigroup and Morgan Stanley – stand accused of ripping off the mortgage giants Fannie Mae and Freddie Mac. The Federal Housing Finance Agency, Fannie and Freddie’s conservator, alleges that these banks improperly sold $200 billion worth of mortgage-backed securities without disclosing the shoddy underwriting of the underlying loans. FHFA argues the banks knew the loans in the securities were bad, yet sold them to Fannie and Freddie anyway, leading to massive losses and the need for a government bailout. So FHFA wants the banks to buy back the securities they improperly sold under false pretenses.

[THE NATIONAL MEMO]

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Global Banking Crisis – How & Why YOU Will Get “Cyprus’d” As This Bank Scrambled For Capital!!!

Global Banking Crisis – How & Why YOU Will Get “Cyprus’d” As This Bank Scrambled For Capital!!!

Boom Bust Blog-

It is my opinion that banks worldwide are simply not safe anymore, and we are on the precipice of a banking crisis that will make the Lehman fiasco look like a test run. For one, interest rates will definitely have to rise. Yes, I know Bernanke is running ZIRP, the ECB is QE to infinity and beyond, yada, yada… But these entities are not the end all and be all for market rates. They can manipulate rates, but they can’t ultimately control them for the long term. After 6 years, it’s been long term…  With banks failing and taking depositor’s and bondholder’s funds with them, there’s simply not enough people stupid enough to accept .7% returns in exchange for the very likely possibility of losing a large chunk of (the majority of, or possibly all of) their principal to go around!!! This central bank Ponzi scheme of printing more money to pay for the debt that you couldn’t afford to pay back because you didn’t have the money relies on the “Greater Fool Theory”. Common sense dictates that this theory is predicated on an ample supply of “Greater Fools”. What you will read below should shake the foundations of your belief in the EU banking system, and hopefully will start a dearth in “Greater Fools”! Even more alarming, it actually gets worse from here. Oh yeah, if you have believe that the information below actually identifies a gross misrepresentation of fact, omission or outright fraud, simply contact the SEC and let them know that Reggie Middleton suggested they look into it. You can actually use this form to convery my message.

[BOOM BUST BLOG]

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Babcock Law effectively promotes Attorney General Kilmartin’s MERS bill during Rhode Island Legislative Hearings

Babcock Law effectively promotes Attorney General Kilmartin’s MERS bill during Rhode Island Legislative Hearings

Babcock Law-

Hearings took place on Wednesday night on two separate MERS bills written by Attorney General Peter Kilmartin. Supporters and Opponents of the Rhode Island House of Representative’s sponsored bill met and testified for over an hour before the House Corporations Committee in hearing room 203 at the Rhode Island State House. Supporters and Opponents of the Senate Sponsored bill testified concurrently before the Senate Judiciary Committee.

Attorney General Peter Kilmartin’s office testified first and stated that “this bill is about transparency, recording fees, and the right for the consumer to know who owns your mortgage”

MERS Vice President of Legislative Affairs Bill Hultman followed Kilmartin’s office and testified in opposition to the bill. Hultman’s testimony focused on his belief that in requiring promissory notes to be recorded, this legislation is a first of this kind in the country. Hultman’s belief is erroneous. Further even if Rhode Island were the first state to require recording of promissory notes that alone does nothing to speak against the necessity for or legitimacy of a policy of this kind.

[BABCOCK LAW]

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WILLIAMS & CONNOLLY, LLP v. OFFICE OF COMPTROLLER OF CURRENCY (OCC) – Battle Over Botched Foreclosure Reviews

WILLIAMS & CONNOLLY, LLP v. OFFICE OF COMPTROLLER OF CURRENCY (OCC) – Battle Over Botched Foreclosure Reviews

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAMS & CONNOLLY LLP
725 Twelfth St., NW
Washington, DC 20005
Plaintiff,

v.

OFFICE OF THE COMPTROLLER OF
THE CURRENCY
250 E Street, SW
Washington, DC 20219
Defendant.

COMPLAINT FOR INJUNCTIVE
RELIEF

CASE NO. 1:13-cv-00396

[ipaper docId=133051671 access_key=key-kau9hi32evkbgmpoc8j height=600 width=600 /]

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HSBC Bank, USA v Gashi | NYSC – Borrower playing shell game trying to get a modification, Judge had enough

HSBC Bank, USA v Gashi | NYSC – Borrower playing shell game trying to get a modification, Judge had enough

Decided on March 26, 2013

Supreme Court, Dutchess County

 

HSBC Bank, USA, Plaintiff,

against

Nazmi Gashi, et al., Defendants

2820/2012

McCABE, WEISBERG AND CONWAY, P.C.

Attorneys for Plaintiff

145 Huguenot Street, Suite 499

New Rochelle, New York 10801

NAZMI GASHI

Defendant, Pro Se

James D. Pagones, J.

A further settlement conference in the above-captioned foreclosure action is scheduled for April 5, 2013 at 11:30 a.m., before Court Attorney Referee Juliana Maugeri at the Dutchess County Supreme Court, 10 Market Street, 1st floor, Poughkeepsie, New York. Adjournments are only granted with leave of the Court. The homeowner Nazmi Gashi has appeared at each and every one of the six settlement conferences with his cousin, who has been assisting him in the mediation process.

At the first settlement conference on August 20, 2012, the homeowner believed that American Servicing Company (ASC) took over as the servicer of the loan in place of Greenpoint. However, plaintiff’s local counsel stated that Wells Fargo was the servicer.

By letter dated August 22, 2012, plaintiff’s counsel advised the homeowner that the servicer was in fact ACS. However, at the last conference, plaintiff’s local counsel again stated that the servicer for loan was Wells Fargo.

In addition to this confusion, prior to the next conference, plaintiff’s counsel advised the homeowner that the modification application packet was complete. However, at the next conference on November 19, 2012, local counsel advised the homeowner that the packet was not complete. Local counsel then reviewed the application packet in detail with the homeowner and his cousin and advised them what specific documents or information were missing. The borrower promptly complied and submitted the missing information. However, at the next conference on January 7, 2013, plaintiff again requested further documents.

On February 25, 2013, local counsel advised the borrower that the file was complete; that [*2]plaintiff had completed BPO of the premises; that no further documents were missing; and that the file was under review.

Prior to the latest conference, the borrower again spoke with the law firm and was advised that nothing further was needed. However, at the latest March 21 conference, local counsel came to court with a laundry list of documents which plaintiff claimed were still required to complete the packet. The homeowner expressed his increasing frustration at the fact that he has promptly sent plaintiff all requested documents in a timely manner after each conference.

The purpose of these settlement conferences is for the parties to try to resolve the matter without litigation which “would have the immediate salutary effect of restoring the homeowner to his home” (Aames Funding Corp. v Dudley, NYLJ, Dec 7, 2009, at 42, col 3 [Sup Ct, Kings County, Kramer, J.]), thereby avoiding “[d]elays in the foreclosure context [which would] inevitably leave viable properties in a virtually ownerless limbo state and create the potential for a landscape filled with vacant, decaying edifices which could well invite further foreclosures and decreasing property values” (Mtge. Electronic Registration Sys. Inc., v Lizima, 15 Misc 3d 1118[A] [Sup. Ct, Kings County 2007]; see also CPLR 3408[a] [purpose of mandatory conference to hold settlement discussions pertaining to respective rights of the parties including a determination whether the parties can reach mutually agreeable resolution to help homeowner avoid losing his or her home]).

CPLR 3408(f) requires that “[b]oth the plaintiff and defendant shall negotiate in good faith.” The Uniform Rules of the Trial Court impose an affirmative obligation upon the court to ensure that the primary statutory goal of keeping homeowners in their homes (see CPLR R3408[a]) and the concomitant obligation to”ensure that each party fulfills [the] obligation to negotiate in good faith” (22 NYCRR 202.12-a[c][4]) are met. Toward that end, this court has the power, upon a finding of bad faith, to impose a equitable remedy commensurate with plaintiff’s conduct.Based on the record to date, plaintiff’s unnecessary and dilatory tactics have had the inexorable effect of plunging this homeowner deeper and deeper into arrears, raising the very real probability that he will never be able to extricate himself from this debt and work out an affordable loan modification. This homeowner has appeared at every conference and has provided every document plaintiff has requested in a timely manner. Plaintiff’s piecemeal requests at each conference only serve to unnecessarily delay the modification application process while racking up interest, fees, and penalties to plaintiff’s benefit and the homeowner’s detriment. Moreover, there was no explanation offered at the last conference as to the diametrically opposed updates that the borrower and local counsel had received, especially in light of the update at the prior conference that all documents had been received, and the file was under review.

In order to avoid a hearing on whether plaintiff is negotiating with this borrower in good faith, based on the foregoing, it is hereby

ORDERED that plaintiff is barred from collecting any interest incurred from February 25, 2013, until further order of the court; and it is further

ORDERED that any unpaid late fees are waived; and it is further

ORDERED that any loan modification fees are to be either waived or refunded to the homeowner; and it is further;

ORDERED that any attorneys’ fees claimed to have been incurred from the date of the [*3]default until the date of this order are not to be included in the calculation of the homeowner’s modified mortgage payment or otherwise imposed on the homeowner’s, but, rather, any request for attorneys fees is hereby severed and must be submitted to the court for a separate, independent review as to their reasonableness; and it is further

ORDERED that a bank representative fully familiar with the file and with full authority to settle the matter must appear at the next settlement conference and at all future settlement conferences until the case is released from the settlement part or until further order of the court; and it is further

ORDERED that local counsel may not appear at this conference or at any future settlement conferences until the case is released from the settlement part or until further order of the court; and it is further

ORDERED that the parties appear for a further conference in the Foreclosure Settlement Part on April 5, 2013 at 11:30 a.m.

Failure to comply with this order may result in sanctions.

Adjournments are granted only with leave of the court.

This constitutes the order of the court.

Dated:Poughkeepsie, New York

March 26, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

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Dylan Ratigan: Washington is ‘more corrupt than it’s ever been’

Dylan Ratigan: Washington is ‘more corrupt than it’s ever been’

[Source: TYT-CURRENT]

Cenk and former MSNBC host Dylan Ratigan talk about Washington’s continued inability to get anything done in Congress, even when polls clearly show that American citizens want. Cenk asks, “Since you’ve been off TV, has it gotten any better, or is Washington just as corrupt as it’s ever been?” Ratigan says, “I would say it’s more corrupt than it’s ever been. There’s a smugness now, a comfort in both President Obama and the democratic leadership as well as the Republican leadership that they have so thoroughly gerrymandered every electoral district, that they have so thoroughly rigged every significant policy… that they believe that they are, in effect, untouchable.”

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Top Washington law firm, Williams & Connolly sues bank regulator over BOTCHED foreclosure reviews

Top Washington law firm, Williams & Connolly sues bank regulator over BOTCHED foreclosure reviews

Subpoena both these characters – The OCC and Promontory are now trading employees. Julie Williams to Promontory & Amy Friend to OCC

 

Reuters-

A top Washington law firm is suing regulators to hand over information about how it selected consulting firms to participate in a multibillion-dollar review of banks’ past foreclosures.

The reviews, mandated by regulators in 2011 after widespread foreclosure shortcuts came to light, proved slow and expensive, and earlier this year 13 banks agreed to pay $9.3 billion to end them and compensate foreclosed borrowers.

But in a lawsuit in federal court in Washington, D.C., the law firm Williams & Connolly revisited the original reviews.

It is seeking documents explaining how the Office of the Comptroller of the Currency defined “independent” in its requirements for mortgage servicers to hire “independent consultants” to conduct the reviews.

 [REUTERS]

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Boumarate v. HSBC | Fla 5th DCA – (Lost Note Affidavit) It is the bank’s burden to prove its right to enforce the note at the time of summary judgment.

Boumarate v. HSBC | Fla 5th DCA – (Lost Note Affidavit) It is the bank’s burden to prove its right to enforce the note at the time of summary judgment.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 2013

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

ABDALLAH BOUMARATE, ET AL., ,
Appellant,

v.

HSBC BANK USA, N.A., ETC., ,
Appellee.
________________________________/
Opinion filed March 28, 2013

Case No. 5D12-1269

Appeal from the Circuit Court
for Seminole County,

Alan A. Dickey, Judge.

Richard W. Withers, Craig L. Lynd and
Angela M. Domenech, of Kaufman,
Englett, Lynd, PLLC, Orlando, for
Appellant.

Kimberly N. Hopkins, of Shapiro, Fishman,
and Gaché. LLP, Tampa, for Appellee.
GRIFFIN, J.

Abdallah Boumarate and Jennifer Bratchell-Boumarate [“Appellants”] appeal a
summary final judgment entered by the trial court in favor of HSBC Bank, N.A. [“the
Bank”] to foreclose a residential mortgage and recover on a promissory note executed
in favor of Novelle Financial Services, Inc. in connection with the mortgage. The
complaint contained both a count for foreclosure and a second count to re-establish a
lost instrument (the note) pursuant to section 673.3091, Florida Statutes.

In order to be entitled to judgment, the Bank must prove its right to enforce the
note as of the date of the summary judgment hearing, including how it obtained the
Novelle Financial Services note and the circumstances of its loss.1 Beaumont v. Bank
of New York Mellon, 81 So. 3d 553, 554-55 (Fla. 5th DCA 2012). The Bank did file a
“lost instrument affidavit,” but it merely averred that it currently held the note, but could
not find it. The Bank does not dispute its burden of proof on this point; it merely argues
that by failing to raise this issue in its pleading, Appellants lost their right to complain of
the defect. However, this burden remained with the bank. Beaumont, 81 So. 3d 555;
Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So. 3d
773 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

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Stunning Facts About How the Banking System Really Works … And How It Is Destroying America

Stunning Facts About How the Banking System Really Works … And How It Is Destroying America

Paintings by Anthony Freda: www.AnthonyFreda.com.

Washington’s Blog

Reclaiming the Founding Fathers’ Vision of Prosperity

To understand the core problem in America today, we have to look back to the very founding of our country.

The Founding Fathers fought for liberty and justice. But they also fought for a sound economy and freedom from the tyranny of big banks:

“[It was] the poverty caused by the bad influence of the English bankers on the Parliament which has caused in the colonies hatred of the English and . . . the Revolutionary War.”
– Benjamin Franklin

“There are two ways to conquer and enslave a nation. One is by the sword. The other is by debt.”
– John Adams

“All the perplexities, confusion and distress in America arise, not from defects in their Constitution or Confederation, not from want of honor or virtue, so much as from the downright ignorance of the nature of coin, credit and circulation.”
– John Adams

“If the American people ever allow the banks to control issuance of their currency, first by inflation and then by deflation, the banks and corporations that grow up around them will deprive the people of all property until their children will wake up homeless on the continent their fathers occupied”.
— Thomas Jefferson

“I believe that banking institutions are more dangerous to our liberties than standing armies…The issuing power should be taken from the banks and restored to the Government, to whom it properly belongs.”
– Thomas Jefferson

“The Founding Fathers of this great land had no difficulty whatsoever understanding the agenda of bankers, and they frequently referred to them and their kind as, quote, ‘friends of paper money. They hated the Bank of England, in particular, and felt that even were we successful in winning our independence from England and King George, we could never truly be a nation of freemen, unless we had an honest money system. ”
-Peter Kershaw, author of the 1994 booklet “Economic Solutions”

Indeed, everyone knows that the American colonists revolted largely because of taxation without representation and related forms of oppression by the British. See this and this. But – according to Benjamin Franklin and others in the thick of the action – a little-known factor was actually the main reason for the revolution.

To give some background on the issue, when Benjamin Franklin went to London in 1764, this is what he observed:

When he arrived, he was surprised to find rampant unemployment and poverty among the British working classes… Franklin was then asked how the American colonies managed to collect enough money to support their poor houses. He reportedly replied:

“We have no poor houses in the Colonies; and if we had some, there would be nobody to put in them, since there is, in the Colonies, not a single unemployed person, neither beggars nor tramps.”

In 1764, the Bank of England used its influence on Parliament to get a Currency Act passed that made it illegal for any of the colonies to print their own money. The colonists were forced to pay all future taxes to Britain in silver or gold. Anyone lacking in those precious metals had to borrow them at interest from the banks.

Only a year later, Franklin said, the streets of the colonies were filled with unemployed beggars, just as they were in England. The money supply had suddenly been reduced by half, leaving insufficient funds to pay for the goods and services these workers could have provided. He maintained that it was “the poverty caused by the bad influence of the English bankers on the Parliament which has caused in the colonies hatred of the English and . . . the Revolutionary War.” This, he said, was the real reason for the Revolution: “the colonies would gladly have borne the little tax on tea and other matters had it not been that England took away from the colonies their money, which created unemployment and dissatisfaction.”

(for more on the Currency Act, see this.)

Alexander Hamilton echoed similar sentiments:

Alexander Hamilton, the nation’s first treasury secretary, said that paper money had composed three-fourths of the total money supply before the American Revolution. When the colonists could not issue their own currency, the money supply had suddenly shrunk, leaving widespread unemployment, hunger and poverty in its wake. Unlike the Great Depression of the 1930s, people in the 1770s were keenly aware of who was responsible for their distress.

As historian Alexander Del Mar wrote in 1895:

[T]he creation and circulation of bills of credit by revolutionary assemblies…coming as they did upon the heels of the strenuous efforts made by the Crown to suppress paper money in America [were] acts of defiance so contemptuous and insulting to the Crown that forgiveness was thereafter impossible . . . [T]here was but one course for the crown to pursue and that was to suppress and punish these acts of rebellion…Thus the Bills of Credit of this era, which ignorance and prejudice have attempted to belittle into the mere instruments of a reckless financial policy were really the standards of the Revolution. they were more than this: they were the Revolution itself!

And British historian John Twells said the same thing:

The British Parliament took away from America its representative money, forbade any further issue of bills of credit, these bills ceasing to be legal tender, and ordered that all taxes should be paid in coins … Ruin took place in these once flourishing Colonies . . . discontent became desperation, and reached a point . . . when human nature rises up and asserts itself.

In fact, the Americans ignored the British ban on American currency, and:

“Succeeded in financing a war against a major power, with virtually no ‘hard’ currency of their own, without taxing the people.”

Indeed, the first act of the New Continental Congress was to issue its own paper scrip, popularly called the Continental.

Franklin and Thomas Paine later praised the local currency as a “corner stone” of the Revolution. And Franklin consistently wrote that the American ability to create its own credit led to prosperity, as it allowed the creation of ample credit, with low interest rates to borrowers, and no interest to pay to private or foreign bankers .

Not Ancient History … One of the Most Vital Issues of Today

Is this just ancient history?

No.

The ability for America and the 50 states to create its own credit has largely been lost to private bankers. The lion’s share of new credit creation is done by private banks, so – instead of being able to itself create money without owing interest – the government owes unfathomable trillions in interest to private banks.

Read this background to understand how money is really created in our crazy current banking system. And read this and this to learn why we are paying trillions of dollars to the big banks in unnecessary interest costs.

America may have won the Revolutionary War, but it has since lost one of the main things it fought for: the freedom to create its own credit instead of having to beg for credit from private banks at a usurious cost.

No More Federal than Federal Express

While many Americans assume that the Federal Reserve is a federal agency, the Fed itself admits that the 12 Federal Reserve banks are private. See this, this, this and this.

Indeed, the money-center banks in New York control the New York Fed, the most powerful Fed bank. Until recently, Jamie Dimon – the head of JP Morgan Chase – was a Director of the New York Fed. Everyone knows that the Fed is riddled with conflicts of interest and corruption.

The long-time Chairman of the House Banking and Currency Committee (Charles McFadden) said on June 10, 1932:

Some people think that the Federal Reserve Banks are United States Government institutions. They are private monopolies ….

And congressman Dennis Kucinich said:

The Federal Reserve is no more federal than Federal Express!

The Fed Is Owned By – And Is Enabling – The Worst Behavior of the Big Banks

Most people now realize that the big banks have become little more than criminal enterprises.

No wonder a stunning list of economists, financial experts and bankers are calling for them to be broken up.

But the Federal Reserve is enabling the banks. Indeed, the giant banks and the Fed are part of a malignant, symbiotic relationship.

Specifically:

The corrupt, giant banks would never have gotten so big and powerful on their own. In a free market, the leaner banks with sounder business models would be growing, while the giants who made reckless speculative gambles would have gone bust. See this, this and this.

It is the Federal Reserve, Treasury and Congress who have repeatedly bailed out the big banks, ensured they make money at taxpayer expense, exempted them from standard accounting practices and the criminal and fraud laws which govern the little guy, encouraged insane amounts of leverage, and enabled the too big to fail banks – through “moral hazard” – to become even more reckless.

Indeed, the government made them big in the first place. As I noted in 2009:

As MIT economics professor and former IMF chief economist Simon Johnson points out today, the official White House position is that:

(1) The government created the mega-giants, and they are not the product of free market competition

***

(3) Giant banks are good for the economy

***

The [corrupt, captured government “regulators”] and the giant banks are part of a single malignant, symbiotic relationship.

Indeed, the Fed and their big bank owners form a crony capitalist cartel that is destroying the economy for most Americans. The Fed has been bailing out the giant banks while shafting the little guy.

Fed boss Bernanke falsely stated that the big banks receiving bailout money were healthy, when they were not. They were insolvent. By choosing the big banks over the little guy, the Fed is dooming both.

No wonder many top economists say that we should end – or strip most of the powers from – the Federal Reserve.

Even long-time Fed Chairman Alan Greenspan says that we should end the Fed.

A Better Alternative

Conservative and liberal economists both point out that the big banks are already state-sponsored institutions … so the government should create a little competition through public banking.

State-owned public banks – like North Dakota has – would take the power away from the big banks, and give it back to the people … as the Founding Fathers intended.

Even a 12-year old sees the wisdom of public banking.

And see this.


Paintings by Anthony Freda: www.AnthonyFreda.com.
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Alison Frankel: Extraordinary filing shows banks are on the ropes in FHFA cases

Alison Frankel: Extraordinary filing shows banks are on the ropes in FHFA cases

Reuters-

There’s a cloud of desperation over most petitions for a writ of mandamus. These are, by definition, extraordinary filings, asserting that trial judges have committed such egregious abuses of discretion that their appellate overseers must immediately step in and undo the damage. Mandamus petitions are a last resort. They present the downside risk of inciting a trial judge who’s already ill disposed toward you and compromising your credibility at the appeals court. The upside, meanwhile, is remote. Appeals courts grant mandamus very, very rarely.

You can be sure that all of these considerations were taken into account by the 15 banks that filed a stunning joint mandamus petition late Tuesday night, asking the 2nd Circuit Court of Appeals to reverse “gravely prejudicial” pretrial discovery rulings by U.S. District Judge Denise Cote in the Federal Housing Finance Agency’s mortgage-backed securities litigation. It’s my understanding that the banks and their lawyers have been debating the pros and cons of a mandamus petition for months and have been honing the language of the filing for weeks. (Can you imagine the billable hours expended on the conference calls for this joint filing?) Certainly, the banks knew that the odds of succeeding with their petition only got longer in January, when the 2nd Circuit denied mandamus to Arab Bank, reiterating the appeals court’s “expressed reluctance to issue writs of mandamus to overturn discovery rulings” – which is exactly what the banks are asking the court to do in the FHFA cases.

[REUTERS ON THE CASE]

image: rage against the machine/ unknown

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VOMIT | Fla. committee approves mortgage foreclosure bill

VOMIT | Fla. committee approves mortgage foreclosure bill

Bill seeking to speed up Florida’s residential mortgage foreclosure process headed to House

 

YAHOO-

A bill to speed up Florida’s residential mortgage foreclosure process is headed to the state House floor.

The measure (HB 87) won approval from the House Judiciary Committee on a 12-6 vote Thursday in its last committee stop before a looming vote in the full House.

Rep. Kathleen Passidomo, R-Naples, says her bill is aimed at unclogging the foreclosure process in a state that’s been swamped by foreclosures.

[YAHOO]

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Corporations, pro-business nonprofits foot bill for judicial seminars

Corporations, pro-business nonprofits foot bill for judicial seminars

Public Integrity-

Conservative foundations, multinational oil companies and a prescription drug maker were the most frequent sponsors of more than 100 expense-paid educational seminars attended by federal judges over a 4 1/2-year period, according to a Center for Public Integrity investigation.

Among the seminar titles were “The Moral Foundations of Capitalism,” “Corporations and the Limits of Criminal Law” and “Terrorism, Climate & Central Planning: Challenges to Liberty & the Rule of Law.”

Leading the list of sponsors of the 109 seminars identified by the Center were the conservative Charles G. Koch Charitable Foundation, The Searle Freedom Trust, also a supporter of conservative causes, ExxonMobil Corp., Shell Oil Co., pharmaceutical giant Pfizer Inc. and State Farm Insurance Cos. Each were sponsors of 54 seminars.

[PUBLIC INTEGRITY]

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It Can Happen Here: The Confiscation Scheme Planned For U.S. And U.K. Depositors

It Can Happen Here: The Confiscation Scheme Planned For U.S. And U.K. Depositors

I really hope by now all of you reading this have learned not to trust. PERIOD.

It’s not if but when.

Wanna move that money now? Wanna bet?

Seeking Alpha-

Although few depositors realize it, legally the bank owns the depositor’s funds as soon as they are put in the bank. Our money becomes the bank’s, and we become unsecured creditors holding IOUs or promises to pay (see here and here). But until now the bank has been obligated to pay the money back on demand in the form of cash. Under the FDIC-BOE plan, our IOUs will be converted into “bank equity.” The bank will get the money and we will get stock in the bank. With any luck we may be able to sell the stock to someone else, but when and at what price? Most people keep a deposit account so they can have ready cash to pay the bills.

[SEEKING ALPHA]

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Lanny Breuer, chief of DOJ’s criminal division, returns to Covington & Burling

Lanny Breuer, chief of DOJ’s criminal division, returns to Covington & Burling

NOT like anything is going to change leaving the DOJ.

 

WaPO-

Lanny Breuer, one of the longest-serving heads of the Justice Department’s criminal division, is returning to Covington & Burling, the law firm plans to announce today.

The firm’s partners voted Monday to approve Breuer’s return. He will step into the newly created position of vice chair, working with the firm’s senior leaders on long-term strategy and international growth, and will also practice in white collar defense and investigations.

Covington has represented corporations that were investigated by the criminal division during Breuer’s time as division chief. Breuer said he will not be representing any companies on any matters that went before the Justice Department during his tenure. Ethics rules bar him from appearing before the DOJ on a client’s behalf for two years. He can, however, counsel a client on a new matter before the department from behind the scenes.

“I’m sure that if we have a client that has a new matter and we’re able to get that work, I would get involved,” Breuer said in an interview.

[WASHINGTON POST]

image: Politico/AP

Video of what really went down

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MARSHALL v JP Morgan | JPMC and LPS Agents get WHACKED . . . In this case, plaintiffs have alleged facts that support a claim of false imprisonment

MARSHALL v JP Morgan | JPMC and LPS Agents get WHACKED . . . In this case, plaintiffs have alleged facts that support a claim of false imprisonment

 

J. JOHN MARSHALL, ESTATE OF MARJORIE MARSHALL, and KIMBERLY WILEY Plaintiffs,
v.
JP MORGAN CHASE BANK, AMERIPRISE BANK, FIDELITY NATIONAL FIELD SERVICES, INC., JAKK MORTGAGE COMPANY, LPS, FIELD SERVICES, ROBERT HASBERGER, CITY OF ELKHART, CHIEF DALE PFLIBSEN, CPL. MICHAEL WINDMILLER, PTLMN. BRANDON ROUNDTREE, SGT. TRAVIS SNIDER, PTLMN. MICHAEL JANIS, Defendants.

No. 3:11 CV 332.
United States District Court, N.D. Indiana, South Bend Division.
March 19, 2013.

OPINION AND ORDER

JAMES T. MOODY, District Judge.

EXCERPT:

In this case, plaintiffs have alleged facts that support a claim of false imprisonment. Specifically, plaintiffs have alleged that defendant Hashberger reported that a burglary was taking place at the property, despite plaintiffs telling Hashberger that Marshall was the owner of the property. Therefore, Jakk and Hashberger’s motion to dismiss plaintiffs’ false imprisonment claim is denied.

Defendant JP Morgan Chase Bank (“Chase”) (DE #49) and defendants Jakk Mortgage Company (“Jakk”) and Robert Hashberger (DE #46) have filed separate motions to dismiss plaintiffs’ amended complaint under FED. R. CIV. P. 12(b)(6).[1] For the following reasons, those motions are granted in part, and denied in part.

I. Facts[2]

On August 20, 2009, plaintiffs J. John Marshall (“Marshall”) and Kimberly Wiley (“Wiley”) (collectively “plaintiffs”) were working at Marshall’s residence located at 1625 Brookwood Drive, Elkhart, IN (“the property”). The property was in foreclosure, but the foreclosure had not been completed. While plaintiffs were working at the property, an individual who did not identify himself entered the house in an aggressive manner, questioned plaintiffs about their right to be in the house, and demanded plaintiffs leave the house. This individual was later identified as defendant Robert Hashberger (“Hashberger”). Hashberger told plaintiffs that he owned and controlled the property, and also told plaintiffs that they should not be at the property.

At that point, Marshall identified himself as one of the owners of the property, and peacefully removed Hashberger. After Hashberger was gone, plaintiffs went back to work. Shortly thereafter, four City of Elkhart police officers arrived at the property with their guns drawn. Plaintiffs believe the officers arrived at the property after receiving a call from Hashberger reporting a burglary. The officers pointed their guns at Wiley, handcuffed her, and dragged her outside. Once outside, the officers questioned Wiley about Marshall.

The officers then entered the room where Marshall was working, pointed their guns at him, and told him to get down on the floor. Marshall informed the officers that he could not get on the floor because of a disability. The officers grabbed Marshall and handcuffed him instead. After Marshall was handcuffed, the officers dragged him outside for questioning.

At some point, it became apparent to plaintiffs that the officers presence at the property was due to an alleged breaking and entering committed by plaintiffs. Plaintiffs therefore told the officers that Marshall was the owner of the property. Even with this information, however, the officers made plaintiffs stand outside in the sun for almost an hour. The officers eventually told plaintiffs that they were being taken to jail, and read plaintiffs their Miranda rights. Marshall asked the officers if he could contact his attorney, but the officers ignored his request. Marshall eventually began to lose consciousness because he was forced to stand in the sun for such a lengthy period of time. Plaintiffs were released from police custody without any charges being filed.

On August 19, 2011, plaintiffs initiated the current action against several defendants, including Chase, Jakk, and Hashberger. Chase holds the first mortgage on the property, and was in the process of foreclosing on that mortgage at the time of the alleged incident. Jakk and Hashberger manage properties for Chase. In their amended complaint, plaintiffs bring a federal claim under 42 U.S.C. § 1983 and state-law claims of negligence, wrongful eviction, trespass, property damage, and theft against Chase. Plaintiffs contend that Chase is vicariously liable for the actions of its agents, including Jakk and Hashberger. Plaintiffs bring a federal claim under 42 U.S.C. § 1983 and statelaw claims of negligence and false imprisonment against Jakk and Hashberger. Defendants Chase, Hashberger, and Jakk have now moved to dismiss plaintiffs’ claims against them.

II. Legal Standard

Defendants have moved to dismiss plaintiffs’ claims under RULE 12(b)(6) of the FEDERAL RULES OF CIVIL PROCEDURE for failure to state a claim upon which relief may be granted. RULE 8 of the FEDERAL RULES OF CIVIL PROCEDURE sets forth the pleading standard for complaints filed in federal court; specifically, that rule requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8. “The RULE reflects a liberal notice pleading regime, which is intended to focus litigation on the merits of a claim rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) (internal quotation marks omitted). “While the federal pleading standard is quite forgiving . . . `the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Ray v. City of Chicago, 629 F.3d 660, 662-63 (7th Cir. 2011) (quoting Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010)); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

For purposes of deciding defendants’ RULE 12(b)(6) motion, the court accepts plaintiffs’ factual allegations as true. Pardus, 551 U.S. at 93.

III. Analysis

A. Chase’s Motion to Dismiss

1. Federal Claim

Plaintiffs have agreed to voluntarily dismiss their federal claim against Chase. (DE #51.) Therefore, plaintiffs’ claim under 42 U.S.C. § 1983 against Chase is dismissed.

2. State Claims

Chase moves to dismiss all of plaintiffs’ state-law claims. Each claim will be addressed in turn.[3]

A. Negligence

To prevail on a claim of negligence under Indiana law, “a plaintiff is required to prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; and (3) an injury to the plaintiff proximately caused by the breach.” Ford Motor Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007). Chase argues that there are no facts alleged in plaintiffs’ amended complaint that would support a claim of negligence against Chase. (DE #50 at 6.) Chase is correct that there are no factual allegations in the complaint that Chase was negligent itself.

Plaintiffs, however, argue that Chase is liable for negligence under a respondeat superior or agency theory of liability. Chase argues that plaintiffs have failed to allege sufficient facts to show that any of the entities listed in the complaint are Chase’s agents.[4] (Id.) Plaintiffs have alleged that several defendants, including defendants Jakk and Hashberger, managed properties for Chase (DE #37 at 4), and have also alleged that Chase instructed these defendants to go to the property (Id. at 9). Plaintiffs, therefore, have alleged a sufficient factual basis to support a finding that these defendants were acting on Chase’s behalf, and thus, have alleged facts that support a respondeat superior theory of liability.[5] Twombly, 550 U.S. at 555 (“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests. . . .” (citation and quotation omitted)). Chase’s motion to dismiss is therefore denied as it relates to plaintiffs’ negligence claim.

B. Wrongful Eviction

In its memorandum in support of its motion to dismiss, Chase argues that plaintiffs have not alleged any facts that would support a claim for wrongful eviction. (DE #50 at 7.) “[T]he tort of wrongful eviction only arises in the context of a landlordtenant relationship. . . .” Allstate Ins. Co. v. Dana Corp., 737 N.E.2d 1177, 1202 (Ind. Ct. App. 2000), aff’d in relevant part, 759 N.E.2d 1049, 1056 (Ind. 2001). There are no allegations anywhere in the amended complaint detailing a landlord-tenant relationship, and plaintiffs’ wrongful eviction claim is therefore dismissed.

C. Trespass

To succeed on a claim for trespass under Indiana law, a plaintiff must prove two elements: “(1) the plaintiff must show that he possessed the land when the alleged trespass occurred, and (2) the plaintiff must demonstrate that the alleged trespasser entered the land without a legal right to do so.” Holland v. Steele, 961 N.E.2d 516, 525 (Ind. Ct. App. 2012). Chase moves to dismiss plaintiffs’ trespass claim because plaintiffs have failed to allege that Chase entered the property in any way. (DE #50 at 7.) While Chase is correct that plaintiffs have not alleged that Chase entered the property in any way, plaintiffs have alleged facts to support a vicarious liability theory, and Chase’s motion to dismiss is therefore denied as it relates to plaintiffs’ trespass claim.

D. Property Damage

Chase argues that plaintiffs have failed to allege facts regarding any property damage in their amended complaint. (DE #50 at 8.) The court agrees. There are no allegations that any defendant in this case caused any damage to plaintiffs’ property, and plaintiffs have therefore failed to plead “`factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Arnett v. Webster, 658 F.3d 742, 751-52 (7th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Chase’s motion to dismiss as it relates to plaintiffs’ property damage claim is therefore granted.

E. Theft

To succeed in a civil action for theft under Indiana law, a plaintiff must prove a violation of the criminal theft statute by a preponderance of the evidence. Sapp v. Flagstar Bank, FSB, 956 N.E.2d 660, 667 (Ind. Ct. App. 2011). A person commits theft under Indiana law when they “knowingly or intentionally exert[] unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use. . . .” IND. CODE § 35-43-4-2(a). Chase argues that plaintiffs have not alleged facts that support a claim for theft against any defendant.[6]

The term “exert control over property” in Indiana’s theft statute means “to obtain, take, carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or extend a right to property.” IND. CODE § 35-43-4-1(a). There are no factual allegations in plaintiffs’ amended complaint that any defendant exerted control over any property owned by the plaintiffs. Chase’s motion to dismiss as it relates to plaintiffs’ theft claim is therefore granted.

B. Jakk and Hashberger’s Motion to Dismiss

1. Federal Claim

In their motion to dismiss, Jakk and Hashberger argue that plaintiffs’ claim under 42 U.S.C. § 1983 must be dismissed because plaintiffs have not alleged that either Jakk or Hashberger acted under color of state law. (DE #46 at 2-3.) In order to succeed on a claim under § 1983, a plaintiff must show: “(1) that defendants deprived him of a federal constitutional right; and (2) that the defendants acted under color of state law.” Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). There are two ways in which a defendant may be found to have acted under color of state law. “The first is when the state has cloaked the defendants in some degree of authority-normally through employment or some other agency relationship.” Case v. Milewski, 327 F.3d 564, 567 (7th Cir. 2003); see also Wilson v. Price, 624 F.3d 389, 394 (7th Cir. 2010). There is no allegation in plaintiffs’ complaint that either Jakk or Hashberger was given authority by the state.

“The second circumstance in which . . . defendants may be found to act under color of state law is when the defendants have conspired or acted in concert with state officials to deprive a person of his civil rights.” Id. “[M]ere allegations of joint action or a conspiracy do not demonstrate that the defendants acted under color of state law and are not sufficient to survive a motion to dismiss.” Fries v. Helsper, 146 F.3d 452, 458 (7th Cir. 1998); see also Cooney v. Rossiter, 583 F.3d 967, 970-71 (7th Cir. 2009). In this case, plaintiffs do not allege that Jakk and Hashberger conspired or acted in concert with the police. Instead, plaintiffs merely allege that by contacting the police, Jakk “caused a chain of events that was certainly foreseeable on their part[.]” (DE #37 at 10.) This allegation is not sufficient to demonstrate that either defendant Jakk or defendant Hashberger acted under color of state law.[7] Therefore, Jakk and Hashberger’s motion to dismiss as it relates to plaintiffs’ federal claim is granted.

2. State Claims

A. False Imprisonment

Defendants Jakk and Hashberger argue that plaintiffs’ false imprisonment claim must be dismissed because plaintiffs have failed to allege that either Jakk or Hashberger restrained plaintiffs’ freedom of movement or deprived their liberty. (DE #47.) Under Indiana law, false imprisonment is defined as either “the unlawful restraint upon one’s freedom of movement or the deprivation of one’s liberty without consent.” Bentz v. City of Kendallville, 577 F.3d 776, 779 (7th Cir. 2009) (citation and quotation omitted). It is possible, however, for someone who contacts the police to report a crime to be held liable for false imprisonment if the statement the person made to the police was motivated by an ill will or the person knowingly gave false information to police. Veneman v. Jones, 20 N.E. 644, 646 (Ind. 1889); see also Williams v. Tharp, 914 N.E.2d 756, 759-62, 769 (Ind. 2009); Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195, 197-99 (Ind. Ct. App. 1982).

In this case, plaintiffs have alleged facts that support a claim of false imprisonment. Specifically, plaintiffs have alleged that defendant Hashberger reported that a burglary was taking place at the property, despite plaintiffs telling Hashberger that Marshall was the owner of the property. Therefore, Jakk and Hashberger’s motion to dismiss plaintiffs’ false imprisonment claim is denied.

B. Negligence

Defendants Jakk and Hashberger also argue that plaintiffs have failed to properly allege a claim of negligence. (DE #47.) Specifically, defendants argue that plaintiffs have provided no factual allegations as to the basis for their negligence claim. In their amended complaint, plaintiffs allege that Jakk was negligent by failing to confirm the ownership of the property and failing to obtain a court order granting permission to enter the property. (DE #37 at 10.) Defendants Jakk and Hashberger make no argument regarding these allegations,[8] and their motion to dismiss is therefore denied as it relates to plaintiffs’ negligence claim.

IV. Other Motions

On August 29, 2012, the parties agreed that plaintiffs would have until October 1, 2012 to file an amended complaint or voluntarily dismiss defendants. (DE #27.) Plaintiffs failed to do either by that deadline. Plaintiffs did eventually file an amended complaint and a motion to dismiss defendant Ameriprise Bank on November 1, 2012. (DE ##35, 37.) The court grants plaintiffs leave to file their amended complaint (DE #37). An amended complaint “becomes controlling once it is filed because the prior pleading is withdrawn by operation of law.” Ransom v. Lemmon, No. 3:12-CV-065, 2012 WL 3292897, at *1 (N.D. Ind. Aug. 9, 2012) (citing Johnson v. Dossey, 515 F.3d 778, 780 (7th Cir. 2008)). Therefore, the motions to dismiss filed by Chase (DE #8) and Ameriprise Bank (DE #19) that were directed at plaintiffs’ original complaint are DENIED AS MOOT.[9]

Plaintiffs have moved to dismiss defendant Ameriprise Bank with prejudice. (DE #35.) That motion is GRANTED. Plaintiffs have also moved to dismiss the Estate of Marjorie J. Marshall as a plaintiff in this case. (DE #36.) None of the defendants have objected to that motion, and it is therefore GRANTED.

V. Conclusion

For the foregoing reasons:

1. Defendant JP Morgan Chase Bank’s motion to dismiss (DE #8) is DENIED AS MOOT.

2. Defendant Ameriprise Bank’s motion to dismiss (DE #19) is DENIED AS MOOT.

3. Plaintiffs are granted leave to file their amended complaint. (DE #37.)

4. Plaintiffs’ motion to dismiss Ameriprise Bank with prejudice (DE #35) is GRANTED. The Clerk is directed to dismiss defendant Ameriprise Bank from this case with prejudice.

5. Plaintiffs’ motion to dismiss the Estate of Marjorie J. Marshall (DE #36) as a plaintiff is GRANTED. The Clerk is directed to dismiss the Estate of Marjorie J. Marshall as a plaintiff in this case.

6. Defendants Jakk Mortgage Company and Robert Hashberger’s motion to dismiss (DE #46) is GRANTED as it relates to plaintiffs’ federal claim, and DENIED as it relates to plaintiffs’ state-law claims.

7. Defendant JP Morgan Chase Bank’s motion to dismiss (DE #49) is GRANTED as it relates to plaintiffs’ federal claim and plaintiffs’ state-law claims of wrongful eviction, property damage, and theft, and DENIED as it relates to plaintiffs’ state-law claims of negligence and trespass.

SO ORDERED.

[1] Plaintiffs filed responses to both of these motions. Neither response was timely filed, and neither response addressed the arguments defendants’ make in their motions to dismiss. (DE ##51, 52.)

[2] The following facts are taken from plaintiffs’ amended complaint (DE #37), and are accepted as true for purposes of defendants’ motions. Erickson v. Pardus, 551 U.S. 89, 93 (2007).

[3] In its reply brief, Chase argues that because plaintiffs failed to respond to its motion to dismiss, plaintiffs have waived their claims and Chase’s motion to dismiss should be granted. (DE #55 at 3-4.) The cases Chase cites for this proposition, however, dealt with situations where plaintiffs failed to respond to motions to dismiss attacking the legal merits of a complaint’s underlying claims, not the sufficiency of the complaint under RULE 8, as Chase does here. See, e.g., Lekas v. Briley, 405 F.3d 602, 614-15 (7th Cir. 2005); see also Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999). Chase’s argument therefore fails.

[4] Chase argues that plaintiffs allege guesses, as opposed to facts, regarding their agency and respondeat superior liability theories. (DE #50 at 6-7.) The allegations Chase is referring to are the equivalent of allegations made “upon information and belief.” While there are cases that indicate that allegations made “upon information and belief” are insufficient to plead fraud under RULE 9, Bankers Trust Co. v. Old Republic Ins. Co., 959 F.2d 677, 683-84 (7th Cir. 1992), Chase makes no argument that plaintiffs were required to comply with that rule. See also Lewis v. Taylor, No. 1:10-CV-00108, 2010 WL 3785109, at *2-3 (S.D. Ohio Sept. 21, 2010) (discussing allegations made “upon information and belief”).

[5] “The existence of a master-servant or agency relationship gives rise to the application of respondeat superior, which is a tort theory of vicarious liability.” TMC Transp., Inc. v. Maslanka, 744 N.E.2d 1052, 1055 n.3 (Ind. Ct. App. 2001).

[6] Chase actually states that plaintiffs have not alleged that any defendants’ actions constituted property damage. (DE #50 at 9.) This statement is made in the theft section of Chase’s brief, and there court will therefore assume this was a mistake.

[7] The complaint also fails to allege that Jakk and Hashberger deprived plaintiffs of a federal constitutional right.

[8] In their motion to dismiss, Jakk and Hashberger briefly mention that the facts alleged in plaintiffs’ complaint fail to establish a duty of care. Jakk and Hashberger have not, however, developed this argument in a meaningful way, and the court will not make the parties’ arguments for them. Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986) (“It is not the obligation of this court to research and construct the legal arguments open to parties, especially when they are represented by counsel.”).

[9] Defendants Jakk Mortgage Company and Robert Hashberger also moved to dismiss plaintiffs’ original complaint. (DE ##16, 17.) Although the CM/ECF system does not reflect a pending motion for this motion to dismiss, that motion to dismiss is also DENIED AS MOOT.

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Big Banks Face $100 Billion Legal Tab (And That’s If They’re Lucky)

Big Banks Face $100 Billion Legal Tab (And That’s If They’re Lucky)

I’d venture to say it will be much more than this and this is only the tip of an iceberg…but with big government perks lurking around the corner as always to watch their backs.

HuffPO-

You may think that being a too-big-to-fail bank is just one long, consequence-free romp, but it does come at some cost: an enormous and growing legal tab that will probably swell beyond $100 billion, all told.

See, when you’re an immense sea-creature of a bank, you naturally have your tendrils in a lot of different holes, which means you’re ever more likely to get yourself into trouble by doing stuff like accidentally-on-purpose manipulating interest rates or lying to investors about the quality of putrid mortgage junk you sell them.

Of course, you’re far too big to go to jail, so you don’t ever have to worry about that. But that doesn’t mean your victims won’t come after you with the one thing they have at their disposal: lawyers.

[HUFFINGTON POST]

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OUTRAGEOUS! 15 banks ask 2nd Cir. for mandamus against Judge Cote in FHFA cases, claim she’s prejudiced against them

OUTRAGEOUS! 15 banks ask 2nd Cir. for mandamus against Judge Cote in FHFA cases, claim she’s prejudiced against them

Via Reuters on the Case Alison Frankel-

Sure Alison is working on an article on this and will be up as soon as she does.

United States Court of Appeals
for the
Second Circuit

IN RE FHFA COORDINATED SECURITIES LITIGATION
_______________________________
PETITION FOR A WRIT OF MANDAMUS RELATING TO DECISIONS OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK NOS. 11 CIV. 5201, 11 CIV. 6188, 11 CIV. 6189, 11 CIV. 6190, 11 CIV. 6192, 11 CIV. 6193, 11 CIV. 6195, 11 CIV. 6196, 11 CIV. 6198, 11 CIV. 6200, 11 CIV. 6201, 11 CIV. 6202, 11 CIV. 6203, 11 CIV. 6739, 11 CIV. 7010 (HONORABLE DENISE L. COTE)

JOINT PETITION FOR WRIT OF MANDAMUS

[ipaper docId=132704810 access_key=key-2f7b7xuhk129xsb4j3le height=600 width=600 /]

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MERS | RI Legislation to require clean chain of title for residential properties heard in Senate, House committees

MERS | RI Legislation to require clean chain of title for residential properties heard in Senate, House committees

Attorney General cites mortgage recording irregularities in requesting bill

STATE HOUSE — Citing the irregularities with the recording of mortgages and assignments that negatively impact municipalities and consumers, Attorney General Peter F. Kilmartin has requested the introduction of legislation to require that all transfers of a mortgage interest on residential property be recorded to provide a clean chain of title.

The legislation, (2013-S0547) sponsored by Sen. William Conley (District 18, East Providence, Pawtucket) and (2013-H5512) sponsored by Rep. Brian Patrick Kennedy (District 38, Hopkinton, Westerly), was scheduled to be heard before both the Senate Committee on Judiciary and House Corporations Committee today.

The legislation makes it easier for borrowers and regulators to determine who owns loans secured by mortgages on Rhode Island property. Borrowers facing foreclosure will be able to more easily discover who owns their loans before it is too late, and municipalities will be able to identify lenders who are responsible for abandoned homes. The legislation will alter the practice of having the vast majority of mortgages held in the name of a private registry with no interest in the loans known as Mortgage Electronic Registration Systems, Inc., or “MERS.”

Since 1997, the banking industry has been using MERS, which lenders claim has minimized their administrative and financial burdens of the recording process. However, this practice has basically privatized the local land recording process, thereby undermining the accuracy of public records and leading to negative consequences for consumers and municipalities.

“Rhode Island has experienced a record number of foreclosure and short sales since the mortgage crisis,” said Representative Kennedy, “This legislation will assist homeowners in knowing who maintains the note on their property while also ensuring that local cities and towns will know the potential owner of a property after a forced sale has occurred, to ensure that municipalities have the proper information available on the documentation for taxation and municipal recording fees.”

“With this legislation, we are taking another step toward easing the pain of the housing and mortgage foreclosure crisis, which has affected both the state’s municipalities and individual consumers,” Senator Conley said. “It is common sense to record these transfers and take out the unnecessary middle man. Rhode Islanders need to know exactly who they are dealing with and how they can protect themselves. The foreclosure process is tough enough already without adding the frustration of MERS.”

“The changing of servicing and subservicing rights within the lending history often leaves the borrower confused regarding which entity they are supposed to be dealing with on a monthly basis and why,” said Attorney General Kilmartin. “The legislation is designed to give borrowers a public record of who ultimately owns their loans, increasing the ability of homeowners to negotiate with their lenders and their ability to have full knowledge of their rights, counterclaims and defenses if they are faced with litigation.

By having a nominee entity listed as the mortgagee, the banking industry has privatized Rhode Island’s mortgage recording system, and left the accuracy of public land records at the mercy of a private company’s database. Federal banking authorities have already concluded that the private mortgage system contains numerous inaccuracies and has not been accessible to homeowners. Moreover, the nominee frequently has no contractual relationship with the actual noteowner, despite the contention in the mortgage documents of a nominee relationship.

Not only has this private system deprived cities and towns the recording fees that they are owed for over 15 years, it has also hampered the ability of municipalities to adequately address abandoned property and nuisance issues because the mortgagee liable for these issues is not clear from the chain of title.
Consumers are adversely impacted due to the fact that their mortgage loans change hands multiple times through the life of the loan without proper recording. The lack of a contemporaneous public record hampers their ability to deal directly with their lenders and enforce their legal rights.

The banking industry’s practice of using a nominee entity process for recording deeds has become a highly litigated issue by consumers, municipalities and counties throughout the country. This very issue is currently being litigated in Rhode Island with private citizens and municipalities calling into question the legality of using the nominee process to record mortgage interests. The multitude of legal issues surrounding the nominee process has caused confusion and delay in foreclosure proceedings in our State, and has raised the critical issue of whether a nominee entity can enforce the power of sale. High Courts in other States, including Massachusetts and Washington, have already ruled that a nominee cannot utilize the power of sale. This legislation resolves this issue in Rhode Island by simply eliminating the nominee recording process and restoring accuracy and transparency to the public land records.

“The housing and mortgage foreclosure crisis in Rhode Island and the country did not happen overnight,” added Kilmartin. “It is going to take time, as well as reforms to existing systems like MERS to right the housing market and to eliminate past bad practices from happening again.”

For more information, contact:
Larry Berman, Communications Director for the Office of Speaker Gordon D. Fox
State House Room 331A
Providence, RI 02903
(401) 222-2466

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FHFA Announces New Streamlined Modification Initiative Borrowers and Servicers to Benefit From Simplified Program

FHFA Announces New Streamlined Modification Initiative Borrowers and Servicers to Benefit From Simplified Program

Washington, DC – The Federal Housing Finance Agency (FHFA) today announced that Fannie Mae and Freddie Mac will offer a new, simplified loan modification initiative to minimize losses and to help troubled borrowers avoid foreclosure and stay in their homes. Beginning July 1, servicers will be required to offer eligible borrowers who are at least 90 days delinquent on their mortgage an easy way to lower their monthly payments and modify their mortgage without requiring financial or hardship documentation.

The new Streamlined Modification Initiative eliminates the administrative barriers associated with document collection and evaluation. Eligible borrowers must demonstrate a willingness and ability to pay by making three on-time trial payments, after which the mortgage will be permanently modified. Homeowners are encouraged to continue working with their servicer to evaluate all of their foreclosure prevention options. Documenting income and financial hardship could result in a modification with additional savings for the borrower.

“The Streamlined Modification Initiative adds to the suite of home retention tools offered by Fannie Mae and Freddie Mac,” said FHFA Acting Director Edward J. DeMarco.

“This new option gives delinquent borrowers another path to avoid foreclosure. We will still encourage such borrowers to provide documentation to support other modification options that would likely result in additional borrower savings.”

The Streamlined Modification Initiative builds on the principles of the Servicing Alignment Initiative by encouraging servicers to resolve delinquencies earlier and in a more consistent and expeditious manner to keep more people in their homes and to minimize losses to Fannie Mae, Freddie Mac and taxpayers. The program expires August 1, 2015.

The program is available to those homeowners with loans owned or guaranteed by Fannie Mae or Freddie Mac. Since being placed into conservatorships, Fannie Mae and Freddie Mac have completed 2.7 million foreclosure prevention transactions, including 1.3 million loan modifications.

Attached: Frequently Asked Questions

Link to Fannie Mae Guidance to Lenders
Link to Freddie Mac Guidance to Lenders

Frequently Asked Questions
Streamlined Modification Initiative

1. What is the Streamlined Modification Initiative?

The new Streamlined Modification Initiative is designed to help more borrowers with mortgages owned or guaranteed by Fannie Mae and Freddie Mac maintain homeownership. The initiative builds on lessons learned with the Servicing Alignment Initiative (SAI) – namely that early, effective borrower outreach and engagement is critical for successful modification solutions. Under the Streamlined Modification Initiative, many borrowers who are at least 90 days delinquent will be sent a Streamlined Modification Solicitation Offer that includes a Trial Period Plan specifying the dollar amount of the new mortgage payment based upon a fixed interest rate, extending the payment terms to 40 years, and providing principal forbearance for certain underwater borrowers. Borrowers will not be required to document their hardship or financial situations to receive the Streamlined Modification.

2. Why is FHFA directing Fannie Mae and Freddie Mac (the Enterprises) to launch the Streamlined Modification Initiative?

Throughout the financial crisis, one of the biggest challenges in assisting troubled homeowners has been the administrative challenge of document collection. Since the inception of the Making Home Affordable (MHA) program, FHFA, Fannie Mae and Freddie Mac have been measuring and monitoring borrower and servicer responsiveness to borrower assistance programs to understand why many borrowers are not able to get a loan modification. Removing the administrative barriers associated with document collection and servicer evaluation should enable significantly more borrowers to access the available options for home retention.

3. When will the Streamlined Modification Initiative be available?

The Streamlined Modification Initiative will begin July 1, 2013 and end August 1, 2015. Fannie Mae and Freddie Mac are issuing guidance to their mortgage servicers to implement the Streamlined Modification Initiative.

4. What are the eligibility requirements?

The loan must be owned or guaranteed by Fannie Mae or Freddie Mac. Homeowners must be 90 days to 24 months delinquent, and have a first-lien mortgage that is at least 12 months old with a loan-to-value ratio equal to or greater than 80 percent. Loans that have been modified at least two times previously are not eligible. Click on these links to see if your loan is owned or guaranteed by Fannie Mae or Freddie Mac.

5. How is the Streamlined Modification Initiative different from other Fannie Mae or
Freddie Mac mortgage modification options?

The Streamlined Modification builds on the success of the Standard Modification program that Freddie Mac and Fannie Mae announced last year under the Servicing Alignment Initiative. Starting July 1, 2013, servicers will be required to send a Streamlined Modification Solicitation Offer to borrowers who are at least 90 days delinquent and meet the initiative’s eligibility requirements. The key difference is that borrowers will not be required to document their hardship or financial situation, but will be able to accept a Streamlined Modification Offer by simply making the trial period payments and agreeing to the terms of the modification. Borrowers will also be advised that more beneficial terms may be available if they document their financial situation and work with their servicer to pursue the full range of foreclosure prevention options.

6. How does the Streamlined Modification Initiative differ from the Home Affordable Modification Program (HAMP)?

Borrowers can look to take advantage of HAMP as soon as they run into financial troubles, but must provide financial, income and hardship documentation to their servicer to be considered for the program. The Streamlined Modification Initiative is only available for borrowers who are at least 90 days delinquent and it does not require borrowers to provide financial or hardship documentation. HAMP enables servicers to evaluate the borrower for modification terms based on an affordable payment that is 31 percent of the borrower’s gross monthly income. HAMP may provide a more affordable monthly payment than the Streamlined Modification Initiative. In addition, borrowers may be eligible to receive financial incentive payments under HAMP.

7. Will all delinquent borrowers with Fannie Mae or Freddie Mac mortgages receive a Streamlined Modification Trial Period Plan after July 1, 2013 if he or she is 90+ days delinquent?

As of July 1, 2013, servicers must identify eligible borrowers who are 90 days to 24 months delinquent and send them an offer letter that states the terms of the modification, including the monthly payment required for a Streamlined Modification. These eligible borrowers can accept a Streamlined Modification Trial Period Plan by sending the specified payment to the loan servicer.

8. How long will the Trial Period last?

Similar to the Standard Modification, the Streamlined Modification Trial Period Plan will last three months. If the borrower makes on-time payments during the trial period and meets necessary criteria, the borrower will be asked to sign an agreement making the terms of the mortgage modification permanent.

9. What happens if a borrower misses a payment during the Streamlined Modification Trial Period Plan?

If the borrower misses a payment during the Streamlined Modification Trial Period Plan, the borrower will not be eligible for a permanent Streamlined Modification. However, the borrower may submit a Borrower Response Package to the servicer and will be evaluated for other alternatives to foreclosure, including other modification options.

10. Should struggling borrowers wait until the Streamlined Modification takes effect on July 1, 2013 to contact their servicer when they miss a payment?

For borrowers struggling to make their payments, calling the servicer as early as possible is the best option to ensure they are evaluated for the most appropriate alternative to foreclosure. When the borrower documents their financial situation, the servicer will be able to evaluate the borrower for alternative modification options with more beneficial terms. Calling the servicer will not exclude a borrower from receiving the Streamlined Modification solicitation.

11. When should I expect a letter from my servicer?

Servicers will be required to begin evaluating borrowers for a solicitation on July 1, 2013. Depending on the volume of delinquent borrowers and servicer capacity and systems, letters should be sent within a timely period.

12. What steps are Fannie Mae and Freddie Mac taking to discourage strategic defaults by borrowers who stop paying their loans to get a Streamlined Modification?

Fannie Mae and Freddie Mac have existing proprietary screening measures to prevent strategic defaulters from taking advantage of a Streamlined Modification. Additionally, only those borrowers with loans more than 12 months old with a mark-to market loan-to-value ratio greater than 80 percent and who have not had two or more previous loan modifications will be solicited for participation.

13. Why limit eligibility to borrowers who have missed three or more monthly payments?

Because many borrowers who miss one or two payments have a temporary hardship and often reinstate their mortgage to current status, it is most effective to target borrowers who are at least 90 days delinquent. Borrowers who are current or less than 90 days delinquent and have a permanent hardship should contact their servicer to submit a Borrower Response Package so they can be evaluated for a mortgage modification or other alternative to foreclosure.

14. Does the Streamlined Modification cover borrowers with delinquent Freddie Mac or Fannie Mae mortgages secured by second homes and/or investment properties?

Yes. Delinquent borrowers with Fannie Mae or Freddie Mac mortgages secured by second homes or investment properties are eligible to participate in the Streamlined Modification Initiative and may receive trial period plan offers, provided they also meet other eligibility criteria.

# # #

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© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Jamie Feels Terrible — JPMorgan Chase Faces Full-Court Press of Federal Investigations

Jamie Feels Terrible — JPMorgan Chase Faces Full-Court Press of Federal Investigations

“Jamie and other executives feel terrible that the bank’s self-inflicted mistakes have put regulators in an awkward position,” Mr. Evangelisti said. He added, “We are wholly to blame for our errors and are fully cooperating with all authorities to make things right.”

Oh and by this you…. mean the same authorities that were caught kissing his arse!

 

NYT-

As the nation’s strongest bank, JPMorgan Chase used to be known for carrying special sway with regulators. Now it increasingly finds itself in the cross hairs of federal authorities.

At least two board members are worried about the mounting problems, and some top executives fear that the bank’s relationships in Washington have frayed as JPMorgan becomes a focus of federal investigations.

[NEW YORK TIMES]

image: AP

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

DEPOSITION OF FRANK A. DEAN – JP MORGAN CHASE – Home loan research officer

DEPOSITION OF FRANK A. DEAN – JP MORGAN CHASE – Home loan research officer

Did you talk to anybody at NovaStar
about xxxxxxxxx note?

No.

Did you talk to anybody at
Deutsche Bank about his note?

No.

Did you talk to anybody at
Financial Asset Securities Corporation about
xxxxxxxxxxxxxx note?

No.

Did you talk to anybody at Wells
Fargo about xxxxxxxxxxxx note?

MR. FRESHWATER: Objection.
You can answer if you can.

THE WITNESS: No.

BY MS. DOBERDRUK:
Did you talk to anybody at MERS
about xxxxxxxxx note?

No.

Have you ever talked to anybody at
Deutsche Bank about xxxxxxxxxxx and
their loan documents?

No.

Have you ever talked to anybody at
the Soundview Home Loan Trust about xxxxxx
xxxxxxxxxxxx documents?

No.

How did you find out that you were
going to appear here for deposition?

By e-mail.

And do you know how the decision
was made to choose you personally to come here?

I have a vague understanding of how
our process works, yes.

[…]

Have you ever used a program called
LPS Desktop?

Yes.

And what do you use that for?

Looking up contact information.

Did the request from counsel come
through LPS Desktop?

Not that I’m aware of.

Do you see documents on the
LPS Desktop screens, notes and mortgage
documents?

MR. FRESHWATER: Grace, I’m going
to object. Are you talking in general? And if
you are, I would object to relevance. If
you’re talking about a specific case, that’s
okay.

BY MS. DOBERDRUK:
Have you viewed xxxxxxxxx note
on any computer screen?

Yes.

In LPS Desktop?

No.

What computer screen did you look
at?

My laptop’s.

[…]

[ipaper docId=132563624 access_key=key-1k6ype1szi6mk8kpvb7t height=600 width=600 /]

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD2 Comments

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
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Kenneth Eric Trent, www.ForeclosureDestroyer.com

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