October, 2013 - FORECLOSURE FRAUD - Page 2

Archive | October, 2013

CaseAware | LPS and KMC Information Systems Form Strategic Alliance

CaseAware | LPS and KMC Information Systems Form Strategic Alliance

LPS-

Lender Processing Services, Inc. (NYSE: LPS), a leading provider of integrated technology, data and analytics to the mortgage and real estate industries, and KMC Information Systems (KMCIS), the leading provider of case management and integration technology to law firms and trustees, have formed a strategic alliance that will more fully integrate select LPS technologies with KMCIS’ CaseAware® platform and create an end-to-end foreclosure processing solution for loan servicers.

As part of its suite of industry solutions, LPS delivers technologies that support default servicing, including robust enterprise workflow solutions, title ordering applications, invoice management tools and other systems that help servicers, attorneys and trustees reduce expenses and increase operational efficiencies.

The CaseAware platform provides the law firms/trustees with a highly configurable case management system that allows them to rapidly adapt business processes (without programmer intervention) based on changes in regulations, client service level agreements (SLAs) or investor requirements.

The enhanced integration between LPS and CaseAware will offer improved process functionality for both the servicer and the law firm/trustee, and provide seamless connectivity from the servicer’s system into the more than 100 law firms/trustees utilizing CaseAware as their operating system of record.

[LPS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

Gretchen Morgenson on Bill Moyers: If DOJ was tough they would be bringing criminal cases…not settlements

Gretchen Morgenson on Bill Moyers: If DOJ was tough they would be bringing criminal cases…not settlements

Bill Moyers-

“If the Justice Department were being tough on Wall Street they would be talking about bringing criminal cases against individuals who helped to perpetrate this immense crisis.” she said. Morgenson adds that the investigations into JPMorgan Chase show that it and many other financial institutions are still ‘too big to fail,’ which means taxpayers could once again be forced to bail them out.

[BILL MOYERS]

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD4 Comments

Settlement Agreement | FHFA Announces $5.1 Billion in Settlements with J.P. Morgan Chase & Co

Settlement Agreement | FHFA Announces $5.1 Billion in Settlements with J.P. Morgan Chase & Co

The problem I have with this is that omitted filings are being kept confidential. Taxpayers are entitled to this information.

 

For Immediate Release Contact: Corinne Russell (202) 649-3032
October 25, 2013 Stefanie Johnson (202) 649-3030

FHFA Announces $5.1 Billion in Settlements
with J.P. Morgan Chase & Co.

Settlements include private-label securities and representation and
warranty claims

Washington, DC – The Federal Housing Finance Agency (FHFA), as conservator of Fannie
Mae and Freddie Mac, today announced it has reached a settlement with J.P. Morgan Chase &
Co. and related companies for $ 4 billion to address claims of alleged violations of federal and
state securities laws in connection with private-label, residential mortgage-backed securities
(PLS) purchased by Fannie Mae and Freddie Mac. Under the terms of the agreement, J.P.
Morgan Chase & Co. will pay approximately $2.74 billion to Freddie Mac and $1.26 billion to
Fannie Mae to resolve certain claims related to securities sold to the companies between 2005
and 2007 by J.P. Morgan Chase & Co., Bear Stearns & Co., Inc. and Washington Mutual.

In separate settlements, J.P. Morgan Chase & Co. resolved representation and warranty claims
with Fannie Mae and Freddie Mac related to single-family mortgage purchases by the two
companies. Under the terms of the agreements, J.P. Morgan Chase Bank N.A. will pay a total of
approximately $1.1 billion — $670 million to Fannie Mae and $480 million to Freddie Mac.

“The satisfactory resolution of the private-label securities litigation with J.P. Morgan Chase &
Co. provides greater certainty in the marketplace and is in line with our responsibility for
preserving and conserving Fannie Mae’s and Freddie Mac’s assets on behalf of taxpayers. This
is a significant step as the government and J. P. Morgan Chase move to address outstanding
mortgage-related issues,” said FHFA Acting Director Edward J. DeMarco. “Further, I am
pleased that a resolution of single family, whole loan representation and warranty claims could
be achieved at the same time. This, too, will have a beneficial impact for taxpayers and the
housing finance market.”

FHFA’s General Counsel noted, “Our lead representation by Philippe Selendy and the firm of
Quinn Emanuel Urquhart & Sullivan was central to reaching this landmark settlement and
their work continues in the remaining PLS cases. I want to cite the strong work of the FHFA
Office of General Counsel’s litigation group under Stephen Hart and the legal and business
teams at Freddie Mac and Fannie Mae.

“The settlement of the PLS litigation was initiated by U.S. District Court Judge Denise Cote’s
direction to undertake mediation of the PLS cases under her jurisdiction. The settlement also is
aligned with the working group of federal and state authorities addressing claims related to
private-label securities and FHFA has and continues to work with all the government entities
involved.”

FHFA has now settled four of the 18 PLS suits it filed in 2011, and remains committed to
satisfactory resolution of the pending actions.

The settlement agreement regarding private label securities claims between FHFA and
J.P. Morgan Chase & Co. involves the following cases: FHFA v. JP Morgan Chase & Co.,
et al., No. 121 CIV. 6188 (DLC) (S.D.N.Y.)(and other named defendants); FHFA v. Ally
Financial Inc., et al., 11 CIV. 7010 (DLC) (S.D.N.Y.); FHFA v. First Horizon National
Corp., et al., No. 11 Civ. 6193 (DLC)(S.D.N.Y.) and FHFA v. SG Americas, Inc., et al.,
No. 11 CIV. 6203 (DLC)(S.D.N.Y.)

(Settlement Agreement follows; confidential filings omitted)

###

The Federal Housing Finance Agency regulates Fannie Mae, Freddie Mac and the 12 Federal Home Loan Banks. These government-sponsored enterprises provide more than $5.5 trillion in funding for the U.S. mortgage markets and financial institutions.

Down Load PDF of This Case

Exhibit A
THE COVERED SECURITIES

Security Name CUSIP Action

AABST 2005-5 2A 00764MHD2 JPMorgan
AHM 2005-1 6A 02660TDH3 JPMorgan
AHM 2005-4 4A 02660TGV9 JPMorgan
ARSI 2006-M2 A1 04013BAR3 JPMorgan
BALTA 2005-10 22A1 07386HZE4 JPMorgan
BALTA 2005-10 23A1 07386HZG9 JPMorgan
BALTA 2006-1 21A1 07386HB75 JPMorgan
BALTA 2006-2 22A1 07386HF30 JPMorgan
BALTA 2006-3 21A1 07386HK83 JPMorgan
BALTA 2006-4 12A1 073871AC9 JPMorgan
BALTA 2006-4 31A1 073871BL8 JPMorgan
BSABS 2005-HE12 2A 0738795P9 JPMorgan
BSABS 2006-AQ1 12A 07389PAD2 JPMorgan
BSABS 2006-HE10 22A 07389RAR7 JPMorgan
BSABS 2006-HE10 23A 07389RAS5 JPMorgan
BSABS 2006-HE2 2A 07387UEL1 JPMorgan
BSABS 2006-HE4 2A 07388AAD6 JPMorgan
BSABS 2006-HE5 2A 07388CAD2 JPMorgan
BSABS 2006-HE7 2A 07388HAR0 JPMorgan
BSABS 2006-HE8 22A 07388JAR6 JPMorgan
BSABS 2006-HE9 2A 07389MAD9 JPMorgan
BSABS 2006-HE9 3A 07389MAE7 JPMorgan
BSABS 2007-FS1 2A 073855AG3 JPMorgan
BSABS 2007-HE1 22A 07389UAR0 JPMorgan
BSABS 2007-HE1 23A 07389UAS8 JPMorgan
BSABS 2007-HE2 22A 07389YAE1 JPMorgan
BSABS 2007-HE2 23A 07389YAF8 JPMorgan
BSABS 2007-HE3 2A 073852AE5 JPMorgan
BSABS 2007-HE3 3A 073852AF2 JPMorgan
BSABS 2007-HE4 2A 07386RAE9 JPMorgan
BSABS 2007-HE5 2A 073859AE0 JPMorgan
BSABS 2007-HE5 3A 073859AF7 JPMorgan
BSABS 2007-HE6 2A 07387YAE3 JPMorgan
BSABS 2007-HE7 2A1 07387VAC3 JPMorgan
BSABS 2007-HE7 3A1 07387VAE9 JPMorgan
BSMF 2006-SL5 2A 07401HAB8 JPMorgan
BSMF 2006-SL6 2A 07400LAT1 JPMorgan
BSMF 2007-AR3 22A1 07401VAS0 JPMorgan
BSMF 2007-SL1 2A 07401PAB0 JPMorgan
BSMF 2007-SL2 2A 07401RAB6 JPMorgan
CBASS 2006-CB2 AV 12498NAW3 JPMorgan
CBASS 2006-CB7 A1 12479DAA6 JPMorgan
GPMF 2005-AR5 2A1 39538WEE4 JPMorgan
GPMF 2006-AR3 2A1 39538WHA9 JPMorgan
GPMF 2006-AR3 2A2 39538WHB7 JPMorgan
JPALT 2005-A2 2A1 46627MBS5 JPMorgan
JPALT 2007-A2 11A1 466278AA6 JPMorgan
JPMAC 2005-FRE1 A1 46626LBU3 JPMorgan
JPMAC 2005-OPT2 A1A 46626LEF3 JPMorgan
JPMAC 2005-WMC1 A1 46626LBD1 JPMorgan
JPMAC 2006-ACC1 A1 46628RAA3 JPMorgan
JPMAC 2006-CH1 A1 46629TAA8 JPMorgan
JPMAC 2006-CH2 AV1 46629QAS5 JPMorgan
JPMAC 2006-CW1 A1A 46628MAA4 JPMorgan
JPMAC 2006-CW2 AV1 46629BAN9 JPMorgan
JPMAC 2006-FRE1 A1 46626LFX3 JPMorgan
JPMAC 2006-FRE2 A1 46626LGX2 JPMorgan
JPMAC 2006-HE1 A1 46626LGT1 JPMorgan
JPMAC 2006-HE2 A1 46625SAA4 JPMorgan
JPMAC 2006-HE3 A1 46629VAA3 JPMorgan
JPMAC 2006-NC1 A1 46626LJL5 JPMorgan
JPMAC 2006-NC2 A1A 46629HAA4 JPMorgan
JPMAC 2006-RM1 A1A 46629NAA1 JPMorgan
JPMAC 2006-RM1 A1B 46629NAB9 JPMorgan
JPMAC 2006-WMC1 A1 46626LJK7 JPMorgan
JPMAC 2006-WMC2 A1 46628TAA9 JPMorgan
JPMAC 2006-WMC3 A1MZ 46629KAB5 JPMorgan
JPMAC 2006-WMC3 A1SS 46629KAA7 JPMorgan
JPMAC 2006-WMC4 A1A 46630BAA4 JPMorgan
JPMAC 2006-WMC4 A1B 46630BAB2 JPMorgan
JPMAC 2007-CH2 AV1 46630MAS1 JPMorgan
JPMAC 2007-CH3 A1A 46630XAA6 JPMorgan
JPMAC 2007-CH3 A1B 46630XAB4 JPMorgan
JPMAC 2007-CH4 A1 46630CAA2 JPMorgan
JPMAC 2007-CH5 A1 46631KAA3 JPMorgan
JPMMT 2006-A3 1A1 46628KAA8 JPMorgan
LBMLT 2005-3 1A 542514NT7 JPMorgan
LBMLT 2006-1 1A 542514RH9 JPMorgan
LBMLT 2006-10 1A 54251YAA6 JPMorgan
LBMLT 2006-11 1A 542512AA6 JPMorgan
LBMLT 2006-2 1A 542514TQ7 JPMorgan
LBMLT 2006-3 1A 542514UG7 JPMorgan
LBMLT 2006-4 1A 54251MAA2 JPMorgan
LBMLT 2006-5 1A 54251PAA5 JPMorgan
LBMLT 2006-6 1A 54251RAA1 JPMorgan
LBMLT 2006-7 1A 54251TAA7 JPMorgan
LBMLT 2006-8 1A 54251UAA4 JPMorgan
LBMLT 2006-9 1A 54251WAA0 JPMorgan
LBMLT 2006-WL1 1A1 542514QP2 JPMorgan
LBMLT 2006-WL1 1A2 542514QQ0 JPMorgan
LBMLT 2006-WL2 1A 542514RZ9 JPMorgan
LBMLT 2006-WL3 1A 542514SS4 JPMorgan
LUM 2006-3 22A1 55027AAD2 JPMorgan
NCMT 2007-1 1A1 65106FAA0 JPMorgan
PCHLT 2005-4 2A1 71085PDF7 JPMorgan
SACO 2007-1 A2 785814AB0 JPMorgan
SACO 2007-2 A2 78581NAB8 JPMorgan
SAMI 2006-AR4 1A1 86360QAA3 JPMorgan
WAMU 2007-OA3 1A 93364AAA0 JPMorgan
WMABS 2006-HE1 1A 92925CEP3 JPMorgan
WMABS 2006-HE3 1A 93934MAA5 JPMorgan
WMABS 2006-HE4 1A 93934QAA6 JPMorgan
WMABS 2006-HE5 1A 93934XAA1 JPMorgan
WMABS 2007-HE1 1A 93935KAA8 JPMorgan
WMABS 2007-HE2 1A 93934TAA0 JPMorgan
WMALT 2005-10 1CB 93934FFY3 JPMorgan
WMALT 2005-9 1CB 93934FEL2 JPMorgan
WMALT 2006-AR4 1A 939345AA2 JPMorgan
WMALT 2006-AR4 2A 939345AB0 JPMorgan
WMALT 2006-AR4 3A 939345AC8 JPMorgan
WMALT 2006-AR5 1A 93935AAA0 JPMorgan
WMALT 2006-AR5 2A 93935AAB8 JPMorgan
WMALT 2006-AR8 1A 93935LAA6 JPMorgan
WMALT 2006-AR9 1A 939346AA0 JPMorgan
WMALT 2007-OA1 1A 93935NAA2 JPMorgan
WMALT 2007-OA2 1A 93935QAA5 JPMorgan
WMALT 2007-OA3 1A 939355AA1 JPMorgan
WMALT 2007-OA3 3A 939355AC7 JPMorgan
WMHE 2007-HE1 1A 933631AA1 JPMorgan
WMHE 2007-HE2 1A 92926SAA4 JPMorgan
WMHE 2007-HE3 1A 93364EAA2 JPMorgan
WMHE 2007-HE4 1A 93363XAA1 JPMorgan
RAMP 2005-EFC6 A2 76112BL32 Ally
RAMP 2005-RS9 AII 76112BL99 Ally
RASC 2005-KS10 A2 75405WAD4 Ally
RASC 2007-KS2 AII 74924WAE7 Ally
RASC 2007-KS3 AII 74924YAE3 Ally
FHAMS 2005-AA12 2A1 32051GQ81 First Horizon
SGMS 2006-FRE2 A1 784208AA8 SocGen

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Lainey Hashorva: Best Intentions

Lainey Hashorva: Best Intentions

Our Collective Intentions

What if we all embraced the same underlying intent for our actions individually and collectively, personally, nationally, globally?

What if that intent was to reduce the suffering for each of us as human beings, animals and the Earth as a whole? Every action we take, with that intent in mind would cause a shift in consciousness regardless of everyone embracing the intent or not because witnesses to it would consciously or unconsciously be affected by it as well. Imagine, if every person in their pocket of home, community and the bigger picture of their lives kept that intent. My intent is to reduce suffering for all beings. Imagine the politics from that view, imagine the state of world hunger and those that have so much excess. Imagine communities based on that philosophy. I know it sounds hippy dippy or (gasp) socialist. But it?s a method of bringing peace to every situation and if you can?t bring peace, bring comfort to alleviate, bring an open heart to sit with, bring noodle soup. Bring your best self.

We are on the verge of real change in our country and our world. So much
comes down to our individual actions, judgement calls, reactions in words, deeds
and intent. Suffering is unavoidable – the only thing we can change is our reaction
to it.

My advocacy and activism to help homeowners fight for their rights, their homes
and their sanity during this massive shift in our global economy and power structures
has been dark and cavernous to say the least. Some times you can?t offer
solutions, but empathy and being listened to/heard is an amazingly healing gift to
someone that feels the world is crumbling all around them. Some times you can
offer suggestions, tangible stepping stones toward the path of understanding
complicated messy contractual legal terms and a light for where the treasure is.
Some times you can?t. We are all on our own journey but we can walk with each
other and we can try to diminish each other?s suffering on the road.

The road of discovery in this foreclosure madness is paved with our dreams, our
struggle to keep our lives on track, and our realization that we have been abandoned
by our own justice system in righting these patterns of economical and
psychological harm, abuse and lawlessness, that is the soul of the matrix and the
underlying significance of the metrics in attempts to “fix” it.

We have had our own law enforcement, govt. officials and judicial system working
against our rights as citizens to free speech, to gather, to protest, to claim our
rights and our property, to have our rights served and respected as US citizens.

At the same time I have to believe a renaissance is occurring as well to bring
about a new system of being in our country and world that will serve the many
not just the few. Literal, metaphorical and societal birth and death are painful
messy expansive things, especially at this magnitude. So many catastrophes, so
much resistance by the few to keep so many of us at bay, but the ground is shaking
and the walls are breaking. We can all feel it. These are the pesky details and
casualties to hopefully bring about a system that will work for all of us. Occupy
was a metaphor and still exists in groups, communities and outreach in so many
ways. We just need to keep showing up for each other again and again and
again, speak the truth, try to set some of the emotion aside, but stand firm as to
what we can no longer tolerate in a peaceful way. Assist each other, wherever
and when ever in alleviating suffering, in being present where harm is being done
to anyone or living thing.

A release from suffering is what we all want for ourselves and each other in life
and in the battle to save our homes from a corrupt tsunami of wealth redistribution
and fraud.

So we stay relentless and we stick together, we show up for each other, we
share, we stay awake, we take turns, we rest and we come back again tomorrow.
We do the best we can and we try and try again. We offer kindness and our willingness
to show up. We wake up and be awesome.

If you get a moment – or 51 minutes – please watch this link:

http://billmoyers.com/content/pema-chadron/

.

Lainey Hashorva is a Social Media Activist, Investigative Journalist and Entrepreneur. Join the discussion on Facebook in her group, Fraudclosure Fighters with like minded others. Please visit her ETSY store LaineyBean.

 

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

James Scheider, Jr. v. Deutsche Bank National Trust | Fourth Circuit Petitioner Wants to Ask New York Court of Appeals: Is Glaski, et al “on point”?

James Scheider, Jr. v. Deutsche Bank National Trust | Fourth Circuit Petitioner Wants to Ask New York Court of Appeals: Is Glaski, et al “on point”?

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1821
(9: ll-cv-00395-SB)

JAMES P. SCHEIDER, JR.; TAFFY G. SCHEIDER
Plaintiffs – Appellants

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of the IndyMac
INDA Mortgage Loan 2006-AR2 Mortgage Pass-through Certificates, Series 2006-
AR2 under the Pooling and Servicing Agreement dated August 1, 2006;
INDYMAC MORTGAGE SERVICES; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INCORPORATED; ONEWEST BANK, F.S.B.;
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHARLESTON
Defendants – Appellees

and

INDYMAC BANK FEDERAL BANK; MERS, INCORPORATED; MORTGAGE
NETWORK INCORPORATED; INTERNAL REVENUE SERVICE; JOHN DOE
1-1000, inclusive, representing a class of unknown persons who claim or have the
right to claim an interest in certain real property located in Beaufort County, South
Carolina; INDYMAC MBS INCORPORATED
Defendants

MOTION FOR CERTIFICATION OF QUESTIONS TO
NEW YORK STATE COURT OF APPEALS

 . . .

Appeal: 13-1821 Doc: 23-1 Filed: 10/21/2013Pg: 2 of 21 Total Pages: (2 of 1019)

Pursuant to Article VI Section 3(b)(9) of the New York State Constitution, the Plaintiffs-

Appellants, James P. Scheider, Jr. and TaffY G. Scheider (hereinafter referred to as “Appellants”)

hereby move before this Court for an Order certifying the following questions to the New York

State Court of Appeals.

1. Do Appellants have standing to challenge Appellee, Deutsche National Bank

Trust Company’s (hereinafter referred to as “Deutsche Bank”) failure to honor the

specific delivery, time sensitive, and transfer requirements for notes and mortgages under

the applicable Pooling and Servicing Agreement (hereinafter referred to as “PSA”), the

governing document for the trust supposedly holding Appellants’ note and mortgage?

2. Does New York law control the enforceability of Appellants’ note and mortgage?

3. Did the delivery and transfer of the Appellants’ note to Appellee, Deutsche Bank,

as trustee, after the trust’s closing date render this transfer “void” as opposed to

“voidable’?

4. Did the assignment of the Appellants’ mortgage after the commencement of this

action and contrary to the mandates of 26 U.S.C. Section 860D, render this assignment

“void” as opposed to “voidable”?

5. Do Appellants have standing to challenge their loan with Mortgage Electronic

Registrations Systems, Inc. (hereinafter referred to as “MERS”),

6. Do Appellants have standing to challenge the securitization of their mortgage?

Appellants respectfully submit that these issues will be determinative of the pending

Appeal, may be determinative of the entire action, and have not been decided by the New York

State Court of Appeals, the jurisdiction of the controlling law.

1

_________________________

Appeal: 13-1821 Doc: 23-1 Filed: 10/21/2013Pg: 7 of 21 Total Pages: (2 of 1019)



LEGAL ARGUMENTS

POINT I
THE EVILS OF SECURITIZATION UNDERLIE THE CASE AT BAR

POINT II
NEW YORK LAW GOVERNS THE TRANSFERS OF THE APPELLANTS’ NOTE AND
MORTGAGE

POINT III
APPELLANTS’ HAVE STANDING TO CHALLENGE APPELLEES
NON-COMPLIANCE WITH THE PSA

 . . .

Appeal: 13-1821 Doc: 23-1 Filed: 10/21/2013Pg: 12 of 21 Total Pages: (2 of 1019)


COURT ORDER OF APRIL 11, 2013 AND SUBSEQUENT CASE LAW TO THE

CONTRARY

On April 11, 2013, the District Court dismissed the Appellants’ Complaint and their

argument with regard to standing. While the Court recognized the case of Bank of America, NA.

v. Bassman FBT, LLC, supra., which for the most part advanced Appellants’ arguments, the

District Court adopted the Bassman Court’s finding that a transfer in contravention of n trust’s

tenns is voidable rather than void. A New York court has subsequently spoken with regard to

this issue. New York law controls the governing PSA (Exhibit “22”, Section 10.03).

In the case of Wells Fargo Bank, NA. v Erobobo, supra., (a copy of said decision is

attached hereto and marked as Exhibit “23”), Judge Wayne P. Saitta of the New York Supreme

County for Kings County reasoned as follows…..

11

. . .

Even though the Erobobo case is relatively recent, having been decided on April 29,

2013, it has already been cited with approval and its reasoning is being followed.

In the case of Saldivar v. JPMorgan Chase Bank, NA., et al., United States Bankruptcy

Court, Case No. 11-10689 (S.D. Texas June 5, 2013) (a copy of which is attached hereto and

13

marked as Exhibit “24”), the Defendants moved to dismiss the Plaintiffs’ complaint on the basis

that the Plaintiffs lacked standing to challenge the validity of the assignment of their mortgage to

a securitized trust. The Plaintiffs alleged that the note was not timely transferred into the trust in

accordance with the governing PSA. The court reasoned as follows….

14

Again in Hendricks v. US Bank National Association, as Successor Trustee to Bank of

 

America, et aI., State of Michigan Washtenaw County Trial Court, Case No. 10-849-CH. (a copy

of which is annexed hereto and marked as Exhibit “25”), the Court held that because the

Defendants failed to strictly comply with the terms of the governing PSA, the loan at issue in that

case was not properly transferred to the trust. Consequently, New York Trust Law rendered the

conveyance of the note and mortgage a nullity. Then, on June 20, 2013, the United States

District Court for the Southern District of Texas in the case of Ortiz v. CitiMortgage, Inc., 2013

U.S. Dist. LEXIS 86484, ( a copy of which is annexed hereto as Exhibit “26”), decided that a

debtor has standing to challenge the validity of a note based on a gap in the chain of title – much

like the Appellee, Deutsche Bank’s failure, in the case of bar, to adhere to the chain of

endorsements of the note required by the governing PSA.

Most recently, on July 31, 2013, the California Court of Appeals recently decided the

case of Glaski v Bank of America, National Association, 218 Cal. App. 41h 1079, Cal. Rptr. 3d

(Cal. Ct. App. July 31,2013). The Appellants in that case argued that the foreclosing bank was

not the true owner of the land because its chain of ownership had been broken by a defective

transfer of the loan to the securitized trust established for the mortgage backed securities. This

specific defect alleged that the attempted transfers were made after the closing date of the

securitized trust and therefore the transfers were ineffective and void. Citing with approval both

the Erobobo and Saldivar cases, the Court held….

16

 . . .

Appeal: 13-1821 Doc: 23-1 Filed: 10/21/2013Pg: 19 of 21 Total Pages: (2 of 1019)

GROUNDS FOR CERTIFICATION

<EXCERPT>

It is imperative that the New York State Court of Appeals determine whether Appellants

have standing to challenge the Appellees’ non-compliance with the applicable pooling and

servicing agreement. There is obviously a difference of opinion on this issue which has far

reaching consequences for the homeowners of this state. The decisions of the District Court in

this case were based on a then existing line of cases. Since those decisions, the legal landscape

has changed dramatically.

18

[…]

Down Load PDF of This Case

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

DOJ probes nine banks on mortage-backed securities

DOJ probes nine banks on mortage-backed securities

This is a bunch of bull. You mean to tell me after all these years of the fraud, bribes, manipulation and money laundering etc etc etc etc these banks are now being probed. Don’t expect much of what has been done before.

How many of these banks were former AG Holders clients? When is he scheduled to leave?

Clean Sweep…………………. before the next AG steps in.


Reuters-

At least nine banks face probes by the U.S. Department of Justice into their sales of mortgage-backed securities as part of an effort by the task force that reached the $13 billion agreement with JPMorgan Chase & Co, the Financial Times reported.

Citing people familiar with the matter, the newspaper said the banks include Bank of America Corp, Citigroup Inc , Credit Suisse Group, Deutsche Bank, Goldman Sachs Group Inc, Morgan Stanley, Royal Bank of Scotland, UBS, and Wells Fargo & Co .

Document requests and discussions between the banks and government have picked up recently after Eric Holder, the U.S. attorney-general, indicated publicly that more mortgage-backed security lawsuits were coming by the end of the year, the FT said.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

REMIC | Banks set to roadshow Blackstone home-rental bond

REMIC | Banks set to roadshow Blackstone home-rental bond

As if we haven’t had an inclination as to where this is heading already! Just knowing the players involved.


Reuters-

Deutsche Bank, Credit Suisse and JP Morgan will begin marketing the first-ever bond backed by US home-rental cashflows, a US$500 million trade for private-equity giant Blackstone, next Wednesday.

The banks will meet with investors in New York on October 30, and then visit Boston and Los Angeles the following two days.

Deutsche bank is the lead structurer, while Credit Suisse and JP Morgan will be acting as joint leads for the transaction.

The deal, titled Invitation Homes 2013-SFR1, will receive ratings from Kroll, Morningstar, and Moody’s. At least one of those ratings will be Triple A.

The deal will be secured by individual mortgage liens on each underlying property rather than an equity pledge in the property-owning special purpose vehicle (SPV), allowing for the creation of a so-called real estate mortgage investment conduit (Remic) structure, according to sources close to the deal.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD0 Comments

BREAKING: Citigroup said to offer $63 billion in mortgage-servicing rights

BREAKING: Citigroup said to offer $63 billion in mortgage-servicing rights

They are also facing U.S. MBS probe.

 

Bloomberg-

Citigrouproup Inc., the third-biggest U.S. bank, is selling mortgage-servicing rights on $63 billion of loans, its largest potential sale of this type since the 2008 financial crisis, according to two people briefed on the offer.

The servicing rights, or MSRs, represent about 21 percent of Citigroup’s total contracts as of midyear, and could be sold in pieces, said the people, who asked not to be identified because the sale is private.

[BLOOMBERG]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUD1 Comment

Russell Brand May Have Started a Revolution Last Night

Russell Brand May Have Started a Revolution Last Night

Via – GAWKER –

The revolution itself may not be televised, but on last night’s edition of the BBC’s Newsnight, viewers may have witnessed the start of one.

Actor-slash-comedian-slash-Messiah Russell Brand, in his capacity as guest editor of the New Statesman‘s just-published revolution-themed issue, was invited to explain to Jeremy Paxman why anyone should listen to a man who has never voted in his life.

“I don’t get my authority from this preexisting paradigm which is quite narrow and only serves a few people,” Russell responded. “I look elsewhere for alternatives that might be of service to humanity.”

And with that, the first shots of Russell’s revolutionary interview were fired.

[GAWKER]

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Posted in STOP FORECLOSURE FRAUD1 Comment

Don’t Negotiate with Chase — Prosecute Them!

Don’t Negotiate with Chase — Prosecute Them!

Dear Attorney General Eric Holder:

No one should be above the law, no matter how much money they pay in fines. We call on you to (1) Stop negotiating with JPMorgan Chase over what their punishment will be for securities fraud and (2) Charge JPMorgan Chase with CRIMINAL securities fraud NOW. Do not let a $13 Billion civil settlement impede or delay criminal charges for the losses they cost investors, and the economy as a whole.

Continue to sign the petition

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Posted in STOP FORECLOSURE FRAUD1 Comment

Statement Of Manhattan U.S. Attorney Preet Bharara On The Countrywide, Bank Of America, And Rebecca Mairone Verdict

Statement Of Manhattan U.S. Attorney Preet Bharara On The Countrywide, Bank Of America, And Rebecca Mairone Verdict

FOR IMMEDIATE RELEASE

Wednesday, October 23, 2013

“Almost a year to the day after we brought suit, a unanimous jury has found Countrywide, Bank of America, and senior executive Rebecca Mairone liable for making disastrously bad loans and systematically removing quality checks in favor of its own balance. As demonstrated at trial, they adopted a program that they called “the Hustle,” which treated quality control and underwriting as a joke.

In a rush to feed at the trough of easy mortgage money on the eve of the financial crisis, Bank of America purchased Countrywide, thinking it had gobbled up a cash cow. That profit, however, was built on fraud, as the jury unanimously found.

In this case, Bank of America chose to defend Countrywide’s conduct with all its might and money, claiming there was no case here. The jury disagreed. This Office will never hesitate to go to trial to expose fraudulent corporate conduct and to hold companies accountable, particularly when it has caused such harm to the public.

I want to thank the members of the jury for their service in this important trial. And I commend the Assistant U.S. Attorneys in the Office’s Civil Division for their dedication, skill, and tireless efforts.”

13-319

source: http://www.justice.gov/usao/nys/pressreleases/October13/BoAVerdictStatement.php

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Posted in STOP FORECLOSURE FRAUD1 Comment

BOOM GOES THE DYNAMITE! Bank of America loses fraud trial over U.S. mortgages

BOOM GOES THE DYNAMITE! Bank of America loses fraud trial over U.S. mortgages

AND how will affected homeowners be notified?

Excellent…NOW they can go after Angelo Mozilo.


Reuters-

Bank of America Corp was found liable for fraud on Wednesday on claims related to defective mortgages sold by its Countrywide unit, a major win for the U.S. government in one of the few big trials stemming from the financial crisis.

Following a four-week trial, a federal jury in Manhattan found the Charlotte, North Carolina bank liable on one civil fraud charge in connection with shoddy home loans that the former Countrywide Financial Corp sold to Fannie Mae and Freddie Mac and originated in a process called “Hustle.”

[REUTERS]

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Posted in STOP FORECLOSURE FRAUD3 Comments

VERY IMPORTANT STORY: The Fed is about to make owning physical assets a game all banks can play

VERY IMPORTANT STORY: The Fed is about to make owning physical assets a game all banks can play

I’m telling you, the more you continue to support these criminals the more powerful they will become.

END. Of. Story.

 

QZ.–

Last week, Federal Reserve officials leaked to the Wall Street Journal their tentative plan to limit the ability of Goldman Sachs and big banks to own metals warehouses, power plants, and other physical commodity assets.

But experts say that, if implemented, the policy the Fed is floating would actually expand the rights of all banks to enter these physical markets, by creating an official entrance instead of locking the door shut. Presented like a deterrent, it would also be a novel enabler.

According to the Wall Street Journal, the Fed’s plan would call for balancing out the new right to hold assets with a requirement that banks hold more capital to cover the potential risks posed by these activities. The Fed declined to comment on the report but is expected to make a decision in the coming weeks.

Some experts believe that this additional cost will lead most banks to abandon these lines of business. But it’s an unsafe bet. Not only is it not clear how the Fed would structure these surcharges, there is no guarantee that a steep fee would push banks out. “When you have regulatory costs associated with highly lucrative businesses, the banks just typically pass them through to customers and end users,” said Josh Rosner, managing director of Graham Fisher & Co, who testified in July on a Senate hearing about whether banks should be doubling as oil refiners and coal miners.

[QUARTZ]

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Posted in STOP FORECLOSURE FRAUD0 Comments

Senator Warren’s letter to OCC, SEC & Fed asking for number of criminal convictions they’ve gotten for the 2008 crisis

Senator Warren’s letter to OCC, SEC & Fed asking for number of criminal convictions they’ve gotten for the 2008 crisis

October 23, 2013

The Honorable Ben Bernanke
Chairman
Board of Governors of the Federal Reserve System
20th Street and Constitution Avenue, NW
Washington, D.C. 20551

The Honorable Mary Jo White
Chair
U.S. Securities & Exchange Commission
100 F Street, NE
Washington, D.C. 20549

The Honorable Thomas J. Curry
Comptroller of the Currency
Office of the Comptroller of the Currency
250 E Street, SW
Washington, D.C. 20219

Dear Chairman Bernanke, Chair White, and Comptroller Curry:

As you know, last month marked the fifth anniversary of the 2008 financial crisis. The crisis took an enormous toll on this country’s economy. According to a recent analysis by the Federal Reserve Bank of Dallas, the crisis cost the United States up to $14 trillion in lost economic recovery, we also must look back to ensure that those who engaged in illegal activity during the crisis and its aftermath are held accountable.

[…]

[ipaper docId=178423443 access_key=key-4hhmi7azqg0emtxwkux height=600 width=600 /]

 

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Posted in STOP FORECLOSURE FRAUD3 Comments

NOW we know who is buying as many as 200,000 foreclosures with defective titles

NOW we know who is buying as many as 200,000 foreclosures with defective titles

Recovery? What recovery? Real Estate stabilization? What stabilization?

Perhaps when you’re about to buy $20 billion and as many as 200,000 homes.

Why are they willing to buy when they KNOW FOR A FACT that many of these homes have title defects due to fraudulent documents?

Mark my words… there is trouble on the horizon with these.

Bloomberg-

Steve Schwarzman’s Blackstone Group LP has spent $7.5 billion acquiring 40,000 houses in the past two years to create the largest single-family rental business in the U.S. The private-equity firm is now planning to sell bonds backed by lease payments, the latest step in turning a small business into a mature industry.

Deutsche Bank AG may start marketing almost $500 million of the securities as soon as this week, according to a person with knowledge of the transaction. The debt will include a portion with an investment grade from at least one ratings company, according to two separate people, who asked not to be identified because the deal isn’t public.

[BLOOMBERG]

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Posted in STOP FORECLOSURE FRAUD0 Comments

William Black: JPMorgan: Fish Rot from the Head

William Black: JPMorgan: Fish Rot from the Head

New Economic Perspectives-

The New York Times’ spin of the tentative settlement of JPMorgan’s latest myriad felonies begins early and runs throughout the article. JPMorgan and Attorney General Eric Holder have reached a common meme on their settlement: the Department of Justice (DOJ) and Holder are stalwarts who have demonstrated their toughness and JPMorgan is a model corporate citizen. The inconvenient facts that the senior officers of JPMorgan, Bear Stearns (Bear), and Washington Mutual’s (WaMu) grew wealthy through the frauds that drove the financial crisis and that JPMorgan’s senior officers will not be prosecuted and will not even have to repay the proceeds of their crimes never appear in the article.

A word of caution is in order: I am discussing an article that is the product of leaks from DOJ and JPMorgan’s press flacks about a tentative deal, so reality is certain to differ from the spin. This article is a longer discussion of the settlement than my October 22, 2013 CNN op ed.

I am writing a side piece on the irony and implications of the civil and criminal investigation led by the U.S. Attorney for Eastern District of California, Benjamin Wagner. The NYT article suggests that his investigation is of former WaMu officers.

[NEW ECONOMIC PERSPECTIVES]

image: www.sodahead.com

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Posted in STOP FORECLOSURE FRAUD0 Comments

Bushell v. JPMorgan Chase Bank, N.A. | CA 3rd Appellate Dist. – H.A.M.P … We conclude plaintiffs have sufficiently alleged causes of action for breach of contract, promissory estoppel, and fraud based on false promise

Bushell v. JPMorgan Chase Bank, N.A. | CA 3rd Appellate Dist. – H.A.M.P … We conclude plaintiffs have sufficiently alleged causes of action for breach of contract, promissory estoppel, and fraud based on false promise

Filed 10/22/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)

—-

RICHARD BUSHELL et al.,
Plaintiffs and Appellants,

v.

JPMORGAN CHASE BANK, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Placer County, Michael A. Jacques, Court Commissioner. Reversed.

United Law Center, John S. Sargetis and Jon L. Oldenburg for Plaintiffs and Appellants.
AlvaradoSmith, Theodore E. Bacon and Ricardo Diego Navarrette for Defendant and Respondent.

In this action arising from a home foreclosure, the trial court sustained, without leave to amend, defendant lender?s demurrer to plaintiff borrowers? complaint. The complaint alleges causes of action for breach of contract, promissory estoppel, and fraud based on intentional misrepresentation or false promise. Specifically, plaintiffs allege that defendant, under a trial modification mortgage plan, offered to permanently modify the plaintiffs? mortgage loan, provided plaintiffs complied with the terms of the trial modification plan by returning certain requested documents, making timely trial modification payments, and qualifying under a federal program that seeks to reduce home foreclosures, the Home Affordable Mortgage Program (hereafter, HAMP).

Two recent appellate decisions provide guidance on this subject, one from the California Court of Appeal, Fourth Appellate District, Division Three (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780 (West)) and the other from the federal Seventh Circuit Court of Appeals (Wigod v. Wells Fargo Bank, N.A. (7th.Cir. 2012) 673 F.3d 547 (Wigod)). These two decisions, which were issued after the trial court ruled here, concluded that when a borrower has alleged that he or she has complied with all the terms of a trial modification plan offered under HAMP—including making all required payments and providing all required documentation—and if the borrower?s representations on which the modification is based remain true and correct, the lender or loan servicer (collectively hereafter, the lender) must offer the borrower a good faith permanent modification; and if the lender fails to do so, the borrower may sue the lender, under state law, for breach of contract of the trial modification plan, among other causes of action.

We conclude plaintiffs have sufficiently alleged causes of action for breach of contract, promissory estoppel, and fraud based on false promise. Therefore, we shall reverse on those bases.1

[…]

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Posted in STOP FORECLOSURE FRAUD1 Comment

No you did not! You THOUGHT you knew when “Robo-signing” started. Well now you will . . .

No you did not! You THOUGHT you knew when “Robo-signing” started. Well now you will . . .

From the BBC programme Mechanical Marvels: Clockwork Dreams, Professor Simon Schaffer examines a clockwork creation of Pierre Jaquet-Droz.

The Writer Automaton, Switzerland

A 240 year old doll that can write, a clockwork creation by Pierre Jaquet-Droz, a Swiss watchmaker Video by BBC and lesterfontayne.

Some more for your viewing pleasure.

image: en.wikipedia.org

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Posted in STOP FORECLOSURE FRAUD0 Comments

Bank of America Braces for 3 Additional U.S. Probes [VIDEO]

Bank of America Braces for 3 Additional U.S. Probes [VIDEO]

Oct. 22 (Bloomberg) — Bloomberg’s Betty Liu reports on today’s top stories in “Top Headlines.” She speaks on Bloomberg Television’s “In The Loop.”

 

 

 

.

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Posted in STOP FORECLOSURE FRAUD0 Comments

AG Beaumont 1, LLC v. LSREF2 Oreo (Direct) | FL 2nd DCA – $16.8 Million foreclosure… The note that Wells Fargo filed as the original note was an altered note

AG Beaumont 1, LLC v. LSREF2 Oreo (Direct) | FL 2nd DCA – $16.8 Million foreclosure… The note that Wells Fargo filed as the original note was an altered note

FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT

AG BEAUMONT 1, LLC, a Delaware )
limited liability company; AG BEAUMONT )
2, LLC, a Delaware limited liability )
company; AG BEAUMONT 3, LLC, a )
Delaware limited liability company; AG )
BEAUMONT 4, LLC, a Delaware limited )
liability company; AG BEAUMONT 5, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 6, LLC, a Delaware limited )
liability company; AG BEAUMONT 7, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 8, LLC, a Delaware limited )
liability company; AG BEAUMONT 9, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 10, LLC, a Delaware limited )
liability company; AG BEAUMONT 11, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 12, LLC, a Delaware limited )
liability company; AG BEAUMONT 13, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 14, LLC, a Delaware limited )
liability company; AG BEAUMONT 15, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 16, LLC, a Delaware limited )
liability company; AG BEAUMONT 17, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 18, LLC, a Delaware limited )
liability company; AG BEAUMONT 19, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 20, LLC, a Delaware limited )
liability company; AG BEAUMONT 21, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 22, LLC, a Delaware limited )
liability company; AG BEAUMONT 23, LLC, )
a Delaware limited liability company; AG )
BEAUMONT 24, LLC, a Delaware limited )
liability company; AG BEAUMONT 26, LLC, )
a Delaware limited liability company, )
Appellants,

v.

LSREF2 OREO (DIRECT), a Delaware )
limited liability company, )
Appellee.

Opinion filed October 18, 2013.

Appeal from the Circuit Court for
Hillsborough County; Sam D. Pendino,
Judge.

Richard A. Schlosser, Jon P. Tasso, and
Michael R. Rocha of Bricklemyer Smolker,
P.A., Tampa, for Appellants.

Lee D. Mackson, Stephen T. Maher, and
Michelle G. Hendler of Shutts & Bowen, LLC,
Miami, for Appellee.

DAVIS, Chief Judge.

The several Beaumont LLCs collectively challenge the final summary
judgment of foreclosure entered by the trial court in favor of LSREF2 Oreo (Direct), LLC
(herein referred to as “the Bank”).1 Because there remains a disputed issue of material
fact, we reverse the final summary judgment and remand for further proceedings.

On February 12, 2004, Bank of America made a loan to Adler Group
Beaumont Investors, LLC, in the amount of $16.8 million. The proceeds were used to
secure a commercial complex consisting of eleven office buildings. Adler executed a
mortgage on the complex in favor of the bank as security for the loan. Adler later sold
the complex to the occupying tenants, the several individual Beaumont LLCs. As a part
of the purchase of the business units, the Beaumont LLCs assumed the indebtedness
on the buildings.

Bank of America subsequently assigned its interest in the note and
mortgage to LaSalle Bank National Association as trustee for Banc of America
Commercial Mortgage, Inc. The loan documents were subsequently assigned to Wells
Fargo, which initiated the underlying foreclosure action.

In the initial complaint and the amended complaint, the Bank alleged that
the Beaumont LLCs were in default because the note matured on March 1, 2011, and
the Beaumont LLCs had failed to pay the balance of the note due on that date. The
Beaumont LLCs answered the complaint by denying that the note matured on March 1,
2011, and alleging as an affirmative defense that the maturity date of the original note
was actually March 1, 2012.

In October 2012, the trial court held a hearing on the Bank’s motion for
summary judgment. Prior to the hearing, the Bank filed with the trial court what it
alleged to be the “original” note which clearly stated on the first page that the maturity
date was March 1, 2011. However, in their sworn answers to interrogatories, the
Beaumont LLCs asserted that the original note actually contained a maturity date of
March 1, 2012, and that the note the Bank filed as the original note was an altered note.

Attached to their answers to interrogatories was a copy of what the Beaumont LLCs
argue is the original note. Also, in response to the motion for summary judgment, the
Beaumont LLCs filed a memorandum in opposition to summary judgment with the same
explanation, and they attempted to make the argument at the summary judgment
hearing.

The Beaumont LLCs also submitted two affidavits from individuals who
were members of two of the LLCs. A copy of the note the members alleged they
received when they purchased their unit and assumed the debt was attached to each
affidavit. These copies show a maturity date of March 1, 2012. The affidavits also
included language stating that the affiant “believed” the maturity date was March 1,
2012, based on the information provided by the seller of the property at the time of
purchase. The trial court struck the affidavits, concluding that the “believed” language
was not relevant evidence of the actual maturity date.

The trial court also determined that because the note submitted by the
Bank was not visibly altered on its face, there was no factual issue as to the validity of
that note. Accordingly, the trial court found the Beaumont LLCs in default and granted
final summary judgment in favor of the Bank.

On appeal, we review the granting of a final summary judgment de novo.
Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). To grant
summary judgment, the trial court must determine that there are no material issues of
fact remaining to be resolved and that the movant is entitled to a judgment as a matter
of law. Snyder v. Cheezem Dev. Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979).

On appeal, the Beaumont LLCs argue that there is a remaining issue of
fact as to the maturity date of the original note. We agree. The original note filed by the
Bank in support of its foreclosure complaint is a document that consists of thirteen
pages. The only handwriting on any of the pages is the signature of the borrower and
the signatures of the two witnesses on the last page (signature page). As the
Beaumont LLCs point out, the first twelve pages each bear a typewritten scrivener’s
word processing identifier number NCLIB1 203080.4 in the lower left corner. However,
the number printed on the signature page is NCLIB1 203080.3.

The copy of the note that the Beaumont LLCs allege they received upon
assumption of the debt also consists of thirteen pages, but all of the pages bear the
identifier number NLCIB1 203080.3. That is, the twelve pages of the note that contain
the terms bear the same identifier number as the signature page, and the maturity date
contained in the terms is the March 1, 2012, date.

Arguably, these facts might be explained by several different theories.
However, one reasonable inference that may be drawn from these facts, as argued by
the Beaumont LLCs below, is that the true original note is the note in which all the
pages bear the identifier number NLCIB1 203080.3 and that the note submitted by the
Bank as the original note is actually a subsequently created note—one that consists of
newly typed pages one through twelve, indicating the March 1, 2011, maturity date,
attached to the original signature page. As noted, there may be other explanations as
to how this occurred, and the inference may be rebutted by other documents showing
the maturity date to be March 1, 2011. However, because the inference put forth by the
Beaumont LLCs is a reasonable one, a factual issue was presented and summary
judgment was improper. See Reed v. Schutz Litig. LLC, 117 So. 3d 486, 488 (Fla. 2d
DCA 2013) (” ‘[I]f material facts are conflicting, i.e., if facts permit different reasonable
inferences to be drawn, . . . then summary judgment may not be granted.’ ” (quoting
Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. 5th DCA 2012))). We therefore reverse the
final judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.

1The final judgment was entered in favor of foreclosure plaintiff Wells
Fargo Bank, but during the pendency of this appeal, Wells Fargo sold its interest in the
foreclosed property, loan documents, foreclosure judgment, and this appeal to LSREF2
Oreo (Direct), LLC. As such, we will refer to the appellee in this proceeding as “the
Bank” no matter whether the action specifically being referred to was taken by LSREF2
Oreo (Direct) or Wells Fargo.

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DOLLENS v WELLS FARGO | NM 2nd Judicial District – Wrongful Foreclosure = $3.1 Million in Actual & Punitive Damages

DOLLENS v WELLS FARGO | NM 2nd Judicial District – Wrongful Foreclosure = $3.1 Million in Actual & Punitive Damages

STATE OF NEW MEXICO
SECOND JUDICIAL DISTRICT

Christopher Dollens et al.,

v

Wells Fargo Bank, N.A. et al.

LETTER DECISION

FACTUAL BACKGROUND

Decedent James Dollens (Decedent) purchased a home in 2003, with a loan from Wells Fargo
Home Mortgage (Wells Fargo) for $133,700. Decedent’s loan was in good standing until his
accidental death on August 18,2010 at his workplace.

Prior to Decedent’s death, he purchased a mortgage accidental death insurance policy in January
2010. The policy was marketed and sold through Wells Fargo, and underwritten by Minnesota
Life Insurance Company (Minnesota Life). The policy premium was $15.12 monthly, and was
added to Decedent’s monthly mortgage payment and collected by Wells Fargo. Wells Fargo was
both the insured and the policyholder.

After Decedent’s death his son, Christopher Dollens (Dollens), notified Wells Fargo and
Minnesota Life via telephone call of his death. He also made a claim under the accidental death
policy to Minnesota Life, and told Wells Fargo that he would be appointed personal
representative of his father’s estate. Additionally, Decedent’s widow, Dina Dollens, contacted
Wells Fargo and notified them of his death and the accidental death policy.

As a result of the death of Decedent, no payments were made for several months on the
mortgage. Wells Fargo sent monthly statements regarding the loan being in default. In
December 2010 counsel for Wells Fargo sent a demand and cure letter regarding the missed
mortgage payments. Dollens retained counsel to provide the necessary documentation to Wells
Fargo showing that he was the personal representative of his father’s estate, and to notify them
that a claim was being made under the accidental death policy. In a letter dated January 10,2011
Dollens’ counsel requested that Wells Fargo not pursue collections and foreclosure while the
claim was pending. Wells Fargo did not respond to the letter.

In February 2011 Minnesota Life also requested that Wells Fargo delay any adverse action on
the account while the claim was pending. Again, there was no response from Wells Fargo.
Minnesota Life initially denied the claim under the accidental death policy, but subsequently
reversed its decision and approved the claim. It sent a Notice of Death form to Wells Fargo
requesting the balance due on the account. Wells Fargo completed the form on February 16,
2011 and stated that the amount due on the account at the time of Decedent’s death was
$121,082.31.

Also, in February 2011, Wells Fargo initiated a foreclosure against Decedent’s home, in spite of
the request by the Personal Representative’s counsel and Minnesota Life to delay adverse action
on the mortgage. Wells Fargo hired foreclosure counsel, and costs and fees accrued as a result of
the foreclosure action being filed.

On October 5,2011 Wells Fargo received a check for $133,559.15 from Minnesota Life for the
proceeds due under the accidental death policy. Rather than post and apply the funds
immediately, Wells Fargo posted the funds five days later, on October 10, 2011, placed them
into a suspense account and paid costs and fees, before applying the payment to interest and the
outstanding principal. Applying the Minnesota Life payment in this manner led to a balance of
$4,416.45 still being owed on the account.

Although the investor, Freddie Mac, in August 2012 authorized a charge-off due to the low
balance on the account, Wells Fargo continued collection efforts for some time. As part of the
collection efforts, Wells Fargo demanded amounts due which were not owed or valid. Beverly
DeCaro (DeCaro), a Wells Fargo employee, testified that continuing collection efforts after the
charge-off and demanding amounts which were not owed, were “mistakes”. She also testified
that the manner in which this account was handled was in keeping with the customary practices
and procedures of Wells Fargo.

With regards to the manner in which the insurance proceeds were applied, Wells Fargo posited
that because of the fees and costs which accrued due to the default and foreclosure action, it did
not consider the insurance proceeds to be sufficient to payoff the account in full, thus it applied
the funds as if the account were reinstated rather than being paid off. However, Wells Fargo did
not notify the Estate that the account was reinstated, and, more significantly, did not dismiss the
foreclosure action.

Despite the October payment of$133,559.15 and testimony that Wells Fargo considered the loan
reinstated, the order of dismissal in the foreclosure action was not entered until March 20, 2012,
months after the insurance proceeds were applied to the account. Wells Fargo offered no valid
justification for its continuation of the foreclosure action for five months after being paid.

CLAIM FOR WRONGFUL FORECLOSURE AND BREACH OF THE COVENANT OF
GOOD FAITH AND FAIR DEALING

The Court was persuaded by Plaintiffs’ evidence as to this claim. The Court finds numerous
willful breaches of the covenant of good faith and fair dealing and the Court also finds that Wells
Fargo committed a wrongful foreclosure.

Plaintiffs presented significant and credible evidence that Wells Fargo marketed and sold
decedent the mortgage accidental death policy. After decedent purchased the policy, Defendant
sent decedent an acknowledgement letter stating that his application was approved and enclosing
the policy. In addition, the letter informed decedent that the policy “helps protect your family
family’s financial security”. (Stipulated Exhibit 3) There can be no doubt that the insurance
policy was marketed to homeowners and created an expectation that the balance of their
mortgage would be paid in the event of their death and was done to provide peace of mind to
decedent and to prevent financial hardship to decedent’s heirs. There can also be no doubt that
such an expectation is reasonable. Wells Fargo admitted that payment of the mortgage balance
was the purpose of the insurance. (Wells Fargo’s Answer to Request for Admission No.3)

In light of the fact that Wells Fargo represented and sold the insurance policy on behalfofMLlC,
collected the monthly premiums for the policy, and had proof of decedent’s death, it should have
taken into consideration the policy before proceeding to foreclose on the property. Wells Fargo
sold the insurance to prevent this very scenario.

In spite of the fact that Wells Fargo sold decedent the mortgage accidental death policy, and was
the policyholder and insured, upon receiving news of decedent’s death, it did nothing to assist
the Estate insofar as making a claim or appealing the denial of the claim. The Court finds that
upon learning of the death of decedent, Wells Fargo should have made a claim with MLlC for
the death benefit. Apparently, ignoring its ability to make a death benefit claim is typical of how
Wells Fargo deals with such situations. DeCaro testified that while many mortgagors die prior to
the expiration of the term of the mortgage, Wells Fargo has no policies or procedures in place to
make claims or otherwise assist estates. This is a systemic failure on the part of Wells Fargo.
Beyond the fact that it has no policies or procedures with regards to accounts with mortgage
accidental death polices, it failed in this case to even take that fact into account. The evidence
showed that both MLlC and counsel for the personal representative requested that Wells Fargo
delay adverse action on the account while the accidental death claim was pending. Instead,
Wells Fargo proceeded to foreclosure on February 9, 2011. Wells Fargo’s inability,
unwillingness, and failure to take action when requested by MLlC is shocking, particularly in
light of Wells Fargo’s ongoing commercial relationship with MLlC.

The Court also finds that Wells Fargo failed to follow the Freddie Mac servicer guidelines, to the
detriment of the Estate. As testified to by Plaintiff’s expert, Andrew Pizor, and Wells Fargo
witness DeCaro, the servicer guidelines are for the benefit of the borrower. Specifically, Wells
Fargo should have granted the Estate a forbearance on the mortgage, and it failed to do so.
Plaintiffs’ expert, Pizor, testified credibly that Wells Fargo should have granted forbearance
based on the Freddie Mac guidelines, and had it done so, late fees, attorneys’ fees, and costs
would not have been incurred, and the foreclosure would not have occurred. Furthermore, the
Estate would not have had to hire counsel to represent it in the foreclosure and incur attorneys’
fees. Thus, this misconduct by Wells Fargo caused the damages to the Estate.

The Court further finds that Wells Fargo’s application of the insurance proceeds was improper
and again to the detriment of the Estate. Rather than apply the proceeds to interest and principal,
as required by the Note, Wells Fargo paid its fees and expenses, which led to the result of the
insurance proceeds being insufficient to payoff the outstanding balance under the Note. This
practice, according to Wells Fargo employees, should not have occurred.

The typical procedure when such a check is received is to only use the funds to payoff the loan.
Wells Fargo employee , Luann Tupa, testified to the practice and procedure. In addition,
Stipulated Exhibit 27 is a series of emails among Wells Fargo employees that discusses the
practice. Apparently, the normal Wells Fargo practice is that when optional product funds (i.e.,
mortgage accidental death proceeds) are received, attorneys’ fees are waived so that the funds
can be used to payoff the loan. As noted in the emails, the reason for the practice is because of
“the incredibly high reputational risk associated with these loans. Wells Fargo actually markets
these Life Insurance products with our mortgage portfolio and we service them attached to the
loan itself…we are honoring those benefits and doing as much as we can to have the loan paid in
full per that policy.”

Yet, in this case, that practice was not followed. Instead, Wells Fargo put its interests before the
Estate and paid numerous other fees, many of which were not proper, with the result that the
insurance proceeds were insufficient to payoff the loan balance. Clearly, Wells Fargo did not
honor the trust and confidence decedent placed in it when he purchased the policy with the intent
of avoiding this very scenario. Wells Fargo Vice President, Robert Dudacek, stated that
decedent’s decision to purchase the mortgage accidental death policy ensured his “family’s
financial security.” (Stip. Exhibit 3) Unfortunately, Wells Fargo took a course of action that
was for its benefit rather than decedent’s family’s financial security. The conduct by Wells
Fargo was a breach of the covenant of good faith and fair dealing and resulted in a wrongful
foreclosure. Plaintiffs’ entitlement to damages is discussed separately.

CLAIM FOR VIOLATION OF THE UNFAIR PRACTICES ACT

The Court was persuaded by Plaintiffs’ evidence with regards to this claim. Specifically, the
Court finds that Wells Fargo violated the Act by marketing and selling mortgage accidental death
insurance to decedent for the purposes of protecting his “family’s financial security”, and then
after it received notice of decedent’s death, attempted to collect the mortgage payments, and
then instituted a foreclosure when it knew there was a mortgage accidental death policy in place,
for which it had collected premiums for some months. The Court finds that because Wells Fargo
was the “licensed agency representing … the insurer”, it had knowledge that the purpose of the
policy was to pay the mortgage balance in the event of the mortgagor’s accidental death. The
Court further finds that Wells Fargo also knew that the decedent’s Estate would not be liable for
the debt unless the claim was denied, after all appeals.

Wells Fargo marketed the life insurance policy knowing at the time it sold the policy that it had
no policies or procedures in place to make claims or otherwise assist estates. Wells Fargo took
advantage of a lack of knowledge, ability, experience or capacity of decedent’ and his family
members, and its actions tended to or did deceive decedent.

The previously set forth acts by Wells Fargo are also a violation of the UPA. In particular the
improper fees and costs assessed against the account and continuing to try to collect on the
account after the charge-off of the loan, and improperly claiming that the Estate owed more
money than was due are violations of the UPA.

There is no doubt that Wells Fargo’s conduct was intended to take advantage of a lack of
knowledge, ability, experience or capacity of decedent’s family members, and tended to or did
deceive. Further, its conduct caused damages to Plaintiffs for which they are entitled to
compensation.

CLAIM FOR BREACH OF CONTRACT

The previously set forth acts by Wells Fargo are also a breach of contract. Plaintiffs met their
burden on this claim. The Court finds that Wells Fargo breached the terms of the Note by
improperly assessing fees and costs, which resulted in assessment of additional interest, fees and
costs against the account. In fact, Wells Fargo concedes that approximately $400.00 of
inspections fees paid by the Estate shall be reimbursed by it. (Pretrial Order and #51 of Wells
Fargo’s closing argument)

The evidence established that Wells Fargo violated the terms of the Note by using the insurance
proceeds to pay its fees and costs first instead of interest and the balance due. This
misapplication of the insurance proceeds caused the Note to keep a balance after the proceeds
were applied, which resulted in the account going into default again, and Wells Fargo claiming a
debt when none would have existed, but for its misapplication of the insurance proceeds.
Plaintiffs are entitled to damages.

DAMAGES

Wells Fargo’s contention that Plaintiffs failed to mitigate their damages is unpersuasive. Wells
Fargo admits that the Estate should be reimbursed approximately $400.00 for improper fees, but
Wells Fargo has not paid that amount. Wells Fargo has not taken its own action that could have
lowered its damages or displayed any consideration for its customer/decedent’s heirs.

Plaintiffs I presented credible evidence of damages of$15,633.42 in improper late fees, improper
property preservation fees, corporate advance fees, monthly payments that would not have been
due had Wells Fargo properly applied the insurance proceeds and otherwise acted in compliance
with its duties to its customer. The Court finds each of these causes of action, Wrongful
Foreclosure; Breach of the Covenant of Good Faith and Fair Dealing; Breach of Contract; and
Unfair Trade Practices have identical damages of$15,633.42.

Undoubtedly, there was sufficient evidence presented to justify imposition of punitive damages
against Wells Fargo, or treble damages under the UPA. The evidence of Wells Fargo’s
misconduct was staggering. Certain evidence in particular highlights Wells Fargo’s indifference
to its customers. Wells Fargo charged the Estate for lawn care of the property (i.e., cutting the
grass), even though no grass was actually cut. The reason for this was that Wells Fargo claimed
that pursuant to the Freddie Mac guidelines, it was required to have the grass cut every 25-30
days; thus, it believed it was appropriate to bill the Estate for this regardless of whether it was
necessary. The property at issue did not have a lawn. This is but one of many facts supporting an
award of punitive damages.

Compelling evidence was presented that Wells Fargo acted intentionally by improperly assessing
fees and costs against the estate, misapplying the MLIC insurance proceeds check, failing to
follow the Freddie Mac servicer guidelines, failing to credit the account with the MLIC check
when it was received and assessing interest against the account for the five days it did not credit
the MLIC check, improperly initiating a foreclosure action, misrepresenting the status of the
foreclosure to the Court in pleadings, sending collection letters/monthly statements to the estate
claiming amounts not due, and improperly assessing fees against the estate for inspections which
were not necessary. All of Wells Fargo’s actions were designed to increase its profits without
regard for the decedent or his family, and in many instances, violated the terms of the Note.

Contrary to Wells Fargo’s arguments, the mistakes were not “minor.” During the pendency of the
litigation, and at trial, Wells Fargo used its computer-driven systems as an excuse for its
“mistakes”. However, the evidence established that this misconduct was systematic and not the
result of an isolated error, or an error because of some unique fact.

Plaintiffs expert testified that Wells Fargo has previously been assessed with significant punitive
damages or fines for improper behavior similar to the conduct that occurred in this matter. No
evidence was offered that Wells Fargo has changed its behavior as a result of any prior sanction
or punitive damage award. Instead the evidence was of ongoing systematic misconduct that
Wells Fargo prefers to label as “minor.”

The evidence in this case established that the type of conduct exhibited by Wells Fargo in this
case has happened repeatedly across the country. See e.g., In re Jones, 2012 WL 1155715
(Bkrtcy.E.D.La.,2012) (Wells Fargo assessed improper fees and charges, including for property
inspections and misapplied payments. Attorney fees and punitive damages awarded.); In Re
Stewart, 647 F.3 553 (5th Cir. 2011) (Assessed fees and costs against account prior to applying
mortgage payment, contrary to terms of the note.); Filson v. Wells Fargo Home Morg., Inc.,
2008 WL 3914899 (Tenn.Ct.App., 2008) (Wells Fargo wrongfully held funds in suspense
account instead of applying to mortgage balance which resulted in default and their subsequent
attempt to foreclose.); In Re Nibbelink, 403 B.R. 113 (M.D.Fla. 2009) (Wells Fargo charged
improper fees. Punitive damages and attorney fees awarded.); and De La Fuente v. Wells Fargo,
430 B.R. 764 (Bankr.S.D.Tex.2010) (Wells Fargo used bad accounting practices and failed to
correct its loan records. Punitive damages and attorney fees awarded).

Plaintiffs expert testified to an Office of the Comptroller of the Currency’s Consent Order which
found that Wells Fargo systematically mishandled foreclosures and applied payments
improperly. He further testified that what happened in this case is not an isolated incident.

While the Court cannot punish Wells Fargo for being “an unsavory individual or business”, it
nonetheless may consider its similar conduct when assessing reprehensibility as it relates to the
imposition of punitive damages. State Farm Mut. Auto. Ins. Co., v. Campbell, 538 U.S. 408,
422-23(2003). In addition, under New Mexico law, the conduct of the Defendant towards others
may be considered in the determining the nature and enormity of the wrongful conduct. UJI131827A,
NMRA.

The Court is aware that it cannot punish Wells Fargo for acts in other cases, or for conduct
outside this case. Likewise, Wells Fargo cannot be punished for acts for which it has already
been punished. However, the Court can consider the reprehensibility of Wells Fargo’s systemic
misconduct, Wells Fargo’s net worth, and the need for deterrence. The evidence of wrongful
conduct in this case merits significant punitive damages.

This Court finds that Plaintiffs’ argument is persuasive that the attorneys’ fees which were
incurred by them should be considered in factoring the amount of punitive damages that should
be awarded. Due to the egregious nature of the conduct of Wells Fargo, the Court will consider
the fees in its calculation of punitive damages.

This Court finds that but-for this misconduct by Wells Fargo, Plaintiffs would have incurred a
small amount of attorney fees. Attorney fees are a recoverable damage under the UPA and under
NMSA §48-7-24.

Despite having multiple opportunities to contest the reasonableness of Plaintiffs’ attorneys’ fees,
Defendant raised no objection to their hourly rate or the time expended on each task. In spite of
Defendant’s failure to object to the reasonableness of the fees claim, the Court reviewed each
page of the Attorney Fee Affidavit and finds that the fees claimed shall be reduced by
$15,164.00 due to the fact that there appeared to be duplication of work among the Plaintiffs’
counsel, or the work did not require the efforts of more than one counsel. The claimed 1470
hours was reduced by 51 hours for total hours expended of 1419 hours’. The Court denies the
request for costs for electronic filing and attorney travel expenses with the exception of travel
expenses incurred to depose Wells Fargo’s 30(b)(6) witnesses in St. Paul, Minnesota, but
otherwise awards all fees and costs as requested by Plaintiffs for an award of $439,051.44, plus
gross receipts taxes on the fees.

As for the attorneys’ travel expenses incurred for the deposition of Wells Fargo’s 30(b)(6)
witnesses, the Court finds that those expenses are recoverable in this circumstance. The
depositions were the subject of Plaintiffs’ Motion to Compel 30(b)(6) depositions, filed on
September 10, 2012. In response to the motion, Wells Fargo filed a Response and Motion for
Protective Order protesting the taking of the witnesses’ deposition in Albuquerque. The Court,
at that time, decided that Plaintiffs’ counsel would travel to St. Paul, Minnesota to take the
depositions. Plaintiffs’ counsel reserved the right to seek re-allocation of the costs. The Court
believes that it is appropriate for these expenses to be a recoverable cost due to Wells Fargo’s
unwillingness to reduce fees and expenses by objecting to the witnesses’ deposition being taken
in Albuquerque, in spite of Wells Fargo’s presence in Albuquerque. Further, Wells Fargo
brought two of the three witnesses to Albuquerque for trial. It was only when Plaintiffs wished
to reduce the fees/expenses in the litigation that Wells Fargo objected to them traveling to New
Mexico. Accordingly, the Court finds that the travel expenses of $3,071.07 for travel to St. Paul,
Minnesota, are recoverable and included that amount in the award of $439,051.44. The Court
finds damages of $15,633.42, plus attorneys’ fees and costs of $439,051.44, for a total of
$454,684.86.

The Court awards $2,728,109.16 in punitive damages. As stated above, the Court considered
attorneys’ fees and costs incurred in factoring the award of punitive damages. By the time of the
completion of the briefing on the attorney fees issue and responding to Defendant’s Motion to
Strike, attorneys’ fees and costs amounted to $439,051.44.

Mindful of the ratios to be considered with regards to punitive damages, the Court believes that
Wells Fargo’s conduct justifies a higher ratio. In light of the repeated, systematic nature of
Wells Fargo’s misconduct, the Court calculated the punitive damages at six times the
compensatory damages of $454,684.86. Awarding a ratio of 6 results in a punitive damages
award of $2,728,109.16. Total damages, without treble damages under the UPA, are
compensatory damages of $15,633.42, attorneys’ fees and costs of $439,051.44, and punitive
damages of$2,728,109.16, for a total damages award of$3,182,794.02.

If Plaintiffs elect to recover all of their relief under the UPA, the Court believes that pursuant to
Atherton v. Gopin, 272 P. 3d 700 (Ct. App. 2012), the fee award may also be trebled. Thus, if
Plaintiffs elect for a recovery under the UPA, the total award would be $1,364,054.58.

DEFENDANT’S MOTON TO WITHDRAW ADMISSIONS

At the time of trial, in response to Plaintiffs’ Motion for an Order Showing Admitted Facts As
Uncontroverted, Wells Fargo requested that it be allowed to withdraw the following admissions:

(2) In January of2010 Wells Fargo sold Mr. Dollens mortgage accidental death insurance under
the group policy with Minnesota Life. (Wells Fargo’s Answer to Plaintiffs’ Second Amended
Complaint, ‘il4, 73 and 99)

(18) Wells Fargo applied the Minnesota Life payment first to fees and costs assessed on
mortgage loan [sic], then to accrued interest and outstanding principal. (Wells Fargo’s Answer
to Plaintiffs’ Second Amended Complaint, ‘il51 and Ill.)

With regards to (2), Wells Fargo argued that this issue was contested by it and was mistakenly
admitted in its Answer. While Wells Fargo argued that its admission in the Answer to the
Second Amended Complaint was a mistake, the Court believes the facts belie the admission
being a mistake. For example, in the Answer to the Second Amended Complaint, Wells Fargo
admitted the fact three times. Also, in its Answer to the Amended Complaint, filed on March 12,
2012, (several months earlier) it admitted the very same fact. The Court believes that due to
Wells Fargo’s admission of this fact numerous times during the pendency of the litigation,
Plaintiffs were entitled to rely on it. Additionally, the admissions, coupled with the last-minute
request to withdraw the admissions, lead the Court to believe that Wells Fargo was attempting to
place Plaintiffs at a disadvantage for trial by attempting to change its defense strategy at a time
when Plaintiffs would have no opportunity to challenge the denial.

As for (18), Wells Fargo admitted the fact two separate times, and claims, yet again, that the
admission was a mistake. The Court was not persuaded that the admission was a mistake, but a
last-minute attempt to change strategy at trial. The Motion is denied.

DEFENDANT’S MOTION TO RECONSIDER RULING IN DUHIGG LAW FIRM V.
WELLS FARGO

At the conclusion of Plaintiffs’ evidence at trial, Wells Fargo moved for reconsideration of the
Court’s ruling in this companion case. 3 The Court denies the motion and its ruling stands as to
its denial of Defendant’s Motion to Dismiss the Unjust Enrichment claim.

As a result of that ruling, Plaintiffs’ counsel submitted an attorney fee affidavit to establish its
attorneys’ fees incurred due to pursuing the insurance proceeds under the Minnesota Life policy,
and fees incurred for having to file the lawsuit for unjust enrichment. The Court overrules Wells
Fargo’s objections as to the fees and concludes that the fees are reasonable, and prejudgment
interest of 15% is allowed. As for the costs, the Court finds that the itemized costs are
recoverable, with the exception of $26.00 in e-filing fees. Accordingly, fees and costs totaling
$51,879.08 up through April 16, 2013 should be awarded to Plaintiffs for those claims.

DEFENDANT’S MOTION TO STRIKE AND FOR SANCTIONS

In response to Plaintiffs filing an Attorney Fee Affidavit for attorneys’ fees incurred as an
element of damages due to Wells Fargo’s misconduct, rather than address the reasonableness of
the fees, Wells Fargo’s counsel instead chose to file the above-referenced Motion. The Court
deems Wells Fargo’s failure to object to the reasonableness of the fees as a waiver. For the
record, Wells Fargo misconstrued the Court’s ruling as to the issue of attorneys’ fees when the
matter was briefly discussed at the conclusion of trial. The Court does not believe that Plaintiffs’
counsel submission of the attorney fee affidavit is in violation of any ruling, nor does it merit
sanctions.

To the extent that an argument can be made that the evidence of the attorneys’ fees incurred
during the litigation was submitted after the close of evidence, the Court finds that neither of the
statutes under which the Court is awarding fees limit the recovery to the time evidence closes.
Even if this was the law, Plaintiffs’ counsel presented good cause for the evidence to be reopened
for this limited purpose. Wells Fargo failed to establish prejudice as a result of this
attorney fee affidavit being submitted during the closing argument briefing period. Moreover,
prior to Plaintiffs’ counsel filing the affidavit, they offered to counsel for Wells Fargo the
opportunity to file a sur-reply to the Closing Argument Reply. Wells Fargo’s counsel’s response
to this offer was that they were “not interested.” Thus, Wells Fargo waived the right to provide
rebuttal argument/evidence to the Court on this issue.

As for the remaining arguments that portions of Plaintiffs’ Closing Argument should be stricken,
the Court was not persuaded, except with regards to Footnote 8 of the Closing Argument Reply,
which Plaintiff s counsel agreed should not be considered by the Court.

The Motion to Strike and for Sanctions is denied.

EXHIBIT CE

The Court withheld ruling on the admissibility of this document to allow Plaintiffs’ counsel an
opportunity to review it. Plaintiffs’ counsel has informed the Court that it does not object to the
admission of the document, thus it is admitted.

Finally, the judgment that is entered in this matter should carry post-judgment interest at 15%.

A copy of this letter decision shall be placed in the Court file.

Beatrice . Brickhouse
District Judge

BJBlbjw

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New York Foreclosure Update: Junk Banks: Bank Attorney’s Affidavits CanNot Authenticate the Note

New York Foreclosure Update: Junk Banks: Bank Attorney’s Affidavits CanNot Authenticate the Note

By Susan Chana Lask, Esq.

Recently a bank’s new foreclosure attorney complained to me about the now defunct Baum Foreclosure Mills files as so slovenly that, and I quote, ““The way they coded, you have no idea what this file looks like, it makes no rhyme or reason, conference-note, conference-note aom…” The documents do not exist to support the foreclosure complaints Baum filed years before that remain on the courts’ dockets. The latest set of attorneys representing the bank’s with those slovenly files apparently have marching orders to do whatever it takes, even fabricate facts, to keep the shadow docket alive. Their present attorneys defending the banks position now file affidavits attesting that they know the Bank has the Note because….well, ummm,…embarrassingly…not because the attorneys have personal knowledge but just because they are attorneys? Here’s what such an attorney’s affidavit looks like in opposition to a homeowners motion for summary judgment filed that the banks has no standing to sue:

“the Note and the Mortgage was subsequently transferred to Plaintiff (the bank) prior to the commencement of the foreclosure action pursuant to the Pooling and
Servicing Agreement…”, “…your affirmant has personal knowledge that the original endorsed Note does exist.”,” “Plaintiff is in possession of the Note…prior to and at the time of commencement of the subject Action (sic)”,“…there is no question concerning Plaintiff’s possession of the original Note and the original Mortgage” and “Plaintiff is in possession of the original endorsed Note and has been since the inception of the PSA…”

The law holds an attorney’s affirmation is improper and fatal to oppose a summary judgment motion. Giaccio v. Kiamesha Concord, Inc., 22 A.D.2d 723, 253 N.Y.S.2d 168 (3d Dep’t 1964), Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718. There is a high evidentiary standard needed to oppose and someone with personal knowledge of the facts is needed, to wit:

“While, as we have held, the affidavit need not be made by the plaintiff (Sznukowski v. B. F. Goodrich Company, 18 A.D.2d 861, 236 N.Y.S.2d 413), it must be by a person having knowledge of the facts and must be as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact (Sortino v. Fisher, 20 A.D.2d 25, 32, 245 N.Y.S.2d 186, 195). The only affidavit which has been submitted is the obviously hearsay affidavit of counsel. Such an affidavit is insufficient (Keating v. Smith, 20 A.D.2d 141, 245 N.Y.S.2d 909.).”

An attorney’s affidavit is accorded no probative value unless accompanied by documentary evidence that constitutes admissible proof. Zuckerman.

You will also note that the attorney affidavit example above does not assert any personal knowledge of delivery to, or possession by, either the plaintiff bank or any of the other many entities involved. What about the entities involved in the PSA, the trusts, the servicers, and the in between banks and investors, including the FDIC that acts as administrator when the original bank lenders fail. Just where did the Note pass from entity to entity and how? Or were they all transferring air when they decided the mandates of the UCC regarding proper endorsements and transfers did not exist anymore? The above affidavit does not attach nor describe any of the many entities, including the plaintiff bank’s, “regularly maintained records” nor render them admissible as evidence. JP Morgan Chase, N.A. v. RADS Group, Inc., 88 A.D.3d 766, 767, 930 N.Y.S.2d 899 [2d Dept. 2011]; HSBC Bank USA, N.A. v. Betts, 67 A.D.3d 735, 736, 888 N.Y.S.2d 203 [2d Dept. 2009]; Unifund CCR Partners v. Youngman, 89 A.D.3d 1377, 1377–78, 932 N.Y.S.2d 609 [4th Dept. 2011]; Reiss v. Roadhouse Rest., 70 A.D.3d 1021, 1024, 897 N.Y.S.2d 450 [2d Dept. 2010]; Lodato v. Greyhawk North America, LLC, 39 A.D.3d 494, 495, 834 N.Y.S.2d 239 [2d Dept. 2007]; Whitfield v. City of New York, 16 Misc.3d 1115[A], 2007 N.Y. Slip Op. 51433 [U], 2007 WL 2142300 [Sup. Ct., Kings County 2007]; aff’d 48 A.D.3d 798, 853 N.Y.S.2d 117 [2d Dept. 2008].) The affidavit does not state that any “regularly maintained records” show delivery of the Note from anyone. There is no evidence that the plaintiff bank ever had possession of the Note except for the attorney trying to win the case for his bank client saying so because,…ummm, embarrassingly, because he is an attorney so we should believe whatever he says to events that he never was present at, was never a party to and he has absolutely no personal knowledge about

The days when an attorney’s word or even a handshake were good are long gone. The practice of law has become a childish game of who can fool the court the longest based on fabricating facts and misrepresenting the law. Now attorneys’ stooping so low to testify for the very clients they represent by their own conclusory hearsay makes the practice of law just junk.

By Susan Chana Lask, Esq.

Susan Chana LaskSusan Chana Lask is an author, lecturer and accomplished attorney litigating in State and Federal Courts, including the United States Supreme Court for the past 25 years. She is named by the media as “New York’s High Profile Attorney” who consistently makes headlines worldwide and changes history with her controversial dogged lawsuits. Her 2010 lawsuit shut down the country’s most notorious Foreclosure Mill in New York State for the benefit of the public suffering from fraudulent foreclosure filings. In 2011 she appeared before the Supreme Court of the United States with the support of five Attorneys General where she obtained a historical decision that strip searching non-criminal offenders is unacceptable unless they are in the general population. Her 2006 lawsuit against the makers of Ambien resulted in the FDA complying with her demands to change prescription drug warnings to protect some 26 Million consumers. Her cases are monumental and have changed history.

Follow Ms. Lask on twitter @SusanChanaLask

This article is for informational purposes only. It is not legal advice. You should seek counsel from a licensed attorney if you have legal questions.

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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