January, 2018 | FORECLOSURE FRAUD | by DinSFLA

Archive | January, 2018

Artis v. District of Columbia | Supreme Court – “Tolling” State claims Statute of Limitations period is suspended during the pendency of the federal suit

Artis v. District of Columbia | Supreme Court – “Tolling” State claims Statute of Limitations period is suspended during the pendency of the federal suit

h/t Dubin Law Offices

 

SUPREME COURT OF THE UNITED STATES
Syllabus
ARTIS v. DISTRICT OF COLUMBIA
CERTIORARI TO THE DISTRICT OF COLUMBIA COURT OF
APPEALS

No. 16–460. Argued November 1, 2017—Decided January 22, 2018

Federal district courts may exercise supplemental jurisdiction over
state claims not otherwise within their adjudicatory authority if
those claims are “part of the same case or controversy” as the federal
claims the plaintiff asserts. 28 U. S. C. §1367(a). When a district
court dismisses all claims independently qualifying for the exercise of
federal jurisdiction, it ordinarily also dismisses all related state
claims. See §1367(c)(3). Section 1367(d) provides that the “period of
limitations for” refiling in state court a state claim so dismissed
“shall be tolled while the claim is pending [in federal court] and for a
period of 30 days after it is dismissed unless State law provides for a
longer tolling period.”
When petitioner Artis filed a federal-court suit against respondent
District of Columbia (District), alleging a federal employmentdiscrimination
claim and three allied claims under D. C. law, nearly
two years remained on the applicable statute of limitations for the
D. C.-law violations. Two and a half years later, the Federal District
Court ruled against Artis on her sole federal claim and dismissed the
D. C.-law claims under §1367(c). Fifty-nine days after the dismissal,
Artis refiled her state-law claims in the D. C. Superior Court, but
that court dismissed them as time barred. The D. C. Court of Appeals
affirmed, holding that §1367(d) accorded Artis only a 30-day
grace period to refile in state court and rejecting her argument that
the word “tolled” in §1367(d) means that the limitations period is
suspended during the pendency of the federal suit.

16-460_bqm2 (1) by DinSFLA on Scribd

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Under Trump’s SEC, Wall Street Secrecy Expands as Enforcement Shrinks

Under Trump’s SEC, Wall Street Secrecy Expands as Enforcement Shrinks

The Intercept-

Late last October, several hundred handsomely suited financiers gathered in the ballroom of a luxury Marriott, just two blocks down Pennsylvania Avenue from the Trump International Hotel. Lisa Kidd Hunt, the new chair of the Securities Industry and Financial Markets Association, practically glowed as she addressed the crowd of bankers, brokers, and other money managers.

“There has never been a better time to be in this industry!” she declared. The economy was strong, she said, there was “real movement on regulatory and tax reform,” and the United States boasts “the best capital markets system in the world.” The audience had every reason to feel elated. The stock market was setting records, and Donald Trump’s pick to regulate the industry — one of his most significant decisions as president from the perspective of those in the room — couldn’t have been better. Jay Clayton was a familiar face, having spent his career as a lawyer representing large Wall Street firms, and he was about to take the stage.

[THE INTERCEPT]

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Jump in late mortgages after Harvey sparks foreclosure fears

Jump in late mortgages after Harvey sparks foreclosure fears

ABC-

As Jacob Lerma surveyed the skeletal beams of his suburban Houston home that was flooded during Hurricane Harvey, he kept muttering three words as he wondered if his family would ever be able to move back in: “I don’t know.”

Like many Texans whose homes were flooded during Harvey, Lerma faces mounting expenses and hasn’t paid his mortgage in months. His insurance payment wasn’t enough to rebuild his home and he was only offered a small loan after applying with the Federal Emergency Management Agency. His last hope is a possible buyout from the city of Friendswood. In the meantime, he, his wife and two daughters will continue living with his parents.

“If the buyout doesn’t work and more money doesn’t come from insurance, walking away from it might be our only option,” said Lerma, 27, who set up a GoFundMe page to help his family. “It’s just crazy to see this all taken away.”

[ABC]

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Bank of America to Pay $3.4M Whistleblower Settlement Over Foreclosure Practices

Bank of America to Pay $3.4M Whistleblower Settlement Over Foreclosure Practices

Bank of America agreed to pay $3.4 million to the federal government to settle whistleblower claims filed by Miami attorney Bruce Jacobs.

The Jan. 5 agreement stems from allegations that the bank didn’t meet documentation standards for foreclosures and bankruptcies even after agreeing to do so as part of a $25 billion consent judgment involving Bank of America and four other mortgage servicers.

“Instead of intending to comply with the servicing standards for foreclosures as provided in the … consent judgment, the defendants intended to commit new misconduct by presenting misleading and deceptive documentation in foreclosure actions promptly after April 4, 2012, and they have done so regularly since then,” the Jacobs Keeley attorney’s complaint alleged.

[DAILY BUSINESS REVIEW]

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UBS, Deutsche Bank and HSBC to pay millions in spoofing settlement, CFTC says

UBS, Deutsche Bank and HSBC to pay millions in spoofing settlement, CFTC says

  • Deutsche Bank will pay $30 million, UBS $15 million and HSBC $1.6 million to settle civil charges that some of their traders engaged in spoofing in the precious metals market.
  • The CFTC charged six individuals, and the Department of Justice charged eight with crimes related to deceptive trading in a wide-ranging investigation

CNBC-

Until now, an illegal trading technique called “spoofing” has been associated with two-bit commodities outfits and lone wolf traders operating in the shadows of the markets.

But prosecutors revealed on Monday that their investigations have hit the big time.

Deutsche BankUBS and HSBC will collectively pay nearly $47 million to settle civil regulatory charges that some of their traders engaged in spoofing in precious metals. Deutsche Bank will pay $30 million and UBS $15 million of that total in a wide-reaching investigation by the Commodity Futures Trading Commission that also names six individuals. HSBC will pay $1.6 million. All three banks cooperated with the probe.

[CNBC]

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No Wells Fargo-Style Sales Practices At Other Banks: OCC

No Wells Fargo-Style Sales Practices At Other Banks: OCC

Law 360-

A review conducted by the Office of the Comptroller of the Currency in the wake of the Wells Fargo & Co. fake account scandal has so far not found similar problems at other large banks, the new chief of the national bank regulator said last week in a letter to Senate Democrats.

Comptroller Joseph Otting said in the letter that the “horizontal review” that the OCC had undertaken to determine whether other large banks had in place sales practices and incentives that led employees to create…

[LAW 360]

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TFH 1/28 | Foreclosure Workshop #53: Validity Versus Finality — The New Frontier in Foreclosure Defense

TFH 1/28 | Foreclosure Workshop #53: Validity Versus Finality — The New Frontier in Foreclosure Defense

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

.

Sunday – January 28, 2018

 ———————
Foreclosure Workshop #53: Validity Versus Finality — The New Frontier in Foreclosure Defense

 

 

 

 

 

State and Federal Courts in recent years have begun the inevitable rethinking and setting aside of prior judicial preedents that have otherwise resulted in the protection of mortgage fraud in the United States since the Mortgage Crisis of 2008.

As a result of such new judicial thinking, tension and friction and conflict have arisen regarding the attempted use of such new case precedent to collaterally attack past adverse foreclosure decisions that have resulted in tens of millions of foreclosures, the vast majority of which have arguably had questionable validity, especially when judged by more recent jurisdictional and evidentiary standards.

That welcome awakening has placed foreclosure defense squarely therefore within one of the most complex of all legal doctrinal controversies: VALIDITY versus FINALITY — the new frontier in foreclosure defense.

In English common law, a past decision’s VALIDITY was much more important than maintaining FINALITY.

That view was adopted in the United States in the landmark 1877 decision of the United States Supreme Court in Pennoyer v. Neff, declaring that a judgment “if void when rendered, will always remain void.”

Yet the Court backed away from that principle in later decisions, until Justice Black in Hazel-Atlas Glass Co. v. Hartford-Empire Co. in 1944 held that there was no time limit in setting aside a final judgment due to it having been procured by fraud on the court, yet that precedent has also been substantially limited by lower federal courts today.

The conceptual protectors of FINALITY overriding VALIDITY, the refusal to allow the reopening of prior judicial decisions even if, for instance, you have conclusive evidence that a prior foreclosing plaintiff did not own your mortgage debt or that the prior court lacked jurisdiction, are such doctrinal giants of status quo theology as: Res Judicata, Rooker-Feldman, Statute of Limitations, Waiver, Laches, Stare Decisis, Prospective Application, Detrimental Reliance, and Full Faith and Credit, depending upon the jurisdiction that you happen to be in and the timing and procedural status of your individual case.

The conceptual protectors of VALIDITY overriding FINALITY, on the other hand, the willingness to allow the reopening of prior judicial decisions where, for instance, you have conclusive evidence that a prior foreclosing plaintiff did not own your mortgage debt or the prior court lacked jurisdiction, are such doctrinal giants of change theology as: Fraud, Illegality, Nullification, Retroactivity, Estoppel, Supervening Authority, Equity, and Public Policy.

Yet all of the above competing doctrines, or what we have called on our show “Rule Statements,” are not “triggers of thought,” but the “conclusions of thought,” as those listeners that have heard our past shows on “The Rule Ritual” well understand.

It is the purposeful goals underlying such doctrines or “Rule Statements” that when applied to the actual facts of each case will or should determine the outcome.

In fact, understanding the underlying triggers of thought behind championing VALIDITY or FINALITY over one another, once correctly understood, harmonize these otherwise seemingly contradictory “Rule Statements.”

The best way to understand this new frontier in foreclosure defense is to analyze specific foreclosure defense situations, which will we do on today’s show, in some of the most significant existing case contexts.

A full understanding of how the tension, friction, and conflict between VALIDITY and FINALITY can be intelligently resolved in individual foreclosure cases will aid our listeners in arguing future individual foreclosure cases on the side of VALIDITY, and Judges to intelligently do Justice.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

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Host: Gary Dubin Co-Host: John Waihee

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CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

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The Foreclosure Hour 12

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Ex-Justice Dept. lawyer offered to sell secret U.S. whistleblower lawsuits to targets of the complaints

Ex-Justice Dept. lawyer offered to sell secret U.S. whistleblower lawsuits to targets of the complaints

Washington Post-

Jeffrey Wertkin had a plot to bring in business and impress his new partners after joining one of Washington’s most influential law firms.

As a former high-stakes corporate-fraud prosecutor with the Department of Justice, he had secretly stockpiled sealed lawsuits brought by whistleblowers. Now, he would sell copies of the suits to the very targets of the pending government investigations — and his services to defend them.

Wertkin carried out his plan for months, right up until the day an FBI agent arrested him in a California hotel lobby.

The 41-year-old partner at Akin Gump Strauss Hauer & Feld …

[WASHINGTON POST]

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Miami Judge Sanctions Albertelli Law Firm, Treasury Secretary Mnuchin’s Former OneWest Bank for ‘Frivolous’ Foreclosure

Miami Judge Sanctions Albertelli Law Firm, Treasury Secretary Mnuchin’s Former OneWest Bank for ‘Frivolous’ Foreclosure

Law-

Miami-Dade Circuit Judge Pedro P. Echarte Jr. sanctioned Treasury Secretary Steven Mnuchin’s former bank, California-based OneWest Bank, and its law firm for filing a frivolous foreclosure against a widow.

The judge granted sanctions against the bank and its attorneys at Tampa-based Albertelli Law, which serves the financial services and mortgage banking industries from offices in Florida, Georgia, Alabama, Arkansas, North Carolina, Tennessee, Texas, South Carolina and the U.S. Virgin Islands. He found the law firm and its client bank prosecuted a frivolous foreclosure and will set a subsequent hearing to determine the penalty.

“I believe the court should impose sanctions sufficient to deter a company like OneWest Bank with $65 billion in assets and vindicate the integrity of the judiciary,” said homeowner attorney Bruce Jacobs of Jacobs Keeley in Miami. “They came after my client a month after her husband died and relentlessly pursued this foreclosure.”

[LAW]

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Targeted by false filings, Pinellas judge takes witness stand

Targeted by false filings, Pinellas judge takes witness stand

TBO-

In his eight years as a circuit judge, Thomas Minkoff has handled family and civil cases. He oversaw more than 14,000 foreclosure hearings at the height of the Great Recession.

He was in court once again on Tuesday, but not in his usual perch at the bench. This time, he was on the witness stand.

Minkoff testified in the trial of a Clearwater woman charged with filing fraudulent documents against the Pinellas-Pasco circuit judge after he presided over her foreclosure.

[TBO]

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CASE WITHDRAWN?!? | U.S. Bank Trust National Association v. Lopez, 2017 IL App (2d) – Bank did not have standing

CASE WITHDRAWN?!? | U.S. Bank Trust National Association v. Lopez, 2017 IL App (2d) – Bank did not have standing

2017 IL App (2d) 160967

No. 2-16-0967

Opinion filed November 14, 2017

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

U.S. BANK TRUST NATIONAL ) Appeal from the Circuit Court

ASSOCIATION, Not in Its Individual ) of Du Page County.

Capacity but Solely as Owner Trustee for
)

Queen’s Park Oval Asset Holding Trust, )

)

Plaintiff-Appellee, )

)

v. ) No. 14-CH-473
)
MARIO A. LOPEZ, a/k/a Mario Augusto )
Lopez-Franco; MARTHA D. LOPEZ; )
UNKNOWN OWNERS; and NONRECORD )
CLAIMANTS, ) Honorable
) Robert G. Gibson,

Defendants-Appellants. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court, with opinion.

Justices McLaren and Schostok concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, U.S. Bank Trust National Association, as owner trustee for Queen’s Park Oval

Asset Holding Trust, filed a foreclosure suit against defendants, Mario A. Lopez, a/k/a Mario

Augusto Lopez-Franco, and Martha D. Lopez. Defendants raised the affirmative defense that

plaintiff lacked standing when it filed the suit. Defendants also raised the affirmative defense

that plaintiff violated Illinois Supreme Court Rule 113 (eff. May 1, 2013) and failed to comply

with Title 24, section 203.604 of the Code of Federal Regulations (Code) (24 C.F.R. § 203.604
2017 IL App (2d) 160967

(2014)). The trial court struck defendants’ affirmative defenses, granted plaintiff summary

judgment, and entered a judgment for foreclosure and sale. On appeal, defendants challenge the

trial court’s orders striking their affirmative defenses and granting plaintiff summary judgment.

For the following reasons, we reverse the judgment of foreclosure, vacate the order approving

the sale, and dismiss the foreclosure action.

¶2 I. BACKGROUND

¶3 A. Initial Foreclosure Proceedings and Amended Complaint

¶4 On March 11, 2014, plaintiff filed a complaint to foreclose the mortgage on property

owned by defendants. The complaint contained a copy of the mortgage and the note. The note

bore two indorsements, one from the original lender to Countrywide Bank, FSB (Countrywide),

and the second from Countrywide to the Secretary of Housing and Urban Development (HUD), a

nonparty to the case. The note included no indorsements or assignments to plaintiff. The

complaint alleged in paragraph “n” that plaintiff was the “legal holder of the indebtedness.”

¶5 Defendants filed an answer with affirmative defenses on May 12, 2014, claiming that

plaintiff lacked standing because the note attached to the complaint was indorsed to HUD and

not to plaintiff, that plaintiff failed to comply with Rule 113 because the note did not show an

indorsement to plaintiff, and that plaintiff failed to comply with Title 21, section 203.604, of the

Code.

¶6 On November 7, 2014, plaintiff amended its complaint to resolve any issue regarding the

note. The allegations were substantially similar to those in the original complaint except that it

alleged at paragraph “n” that “on March 11, 2014[,] Plaintiff was a non-holder in possession of

the Note with rights of a holder. Plaintiff is currently the legal holder of the Note.” Also,

plaintiff attached to the pleading a copy of the note that bore the same two indorsements, one

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2017 IL App (2d) 160967

from the original lender to Countrywide and the second from Countrywide to HUD. The

amended complaint included an “allonge to note” that was not filed with the original complaint.

The allonge, which is undated, contains a special indorsement from HUD to Queen’s Park Oval

Asset Holding Trust, the trust for which plaintiff was the named trustee.

¶7 B. Defendants’ Motion to Dismiss the Amended Complaint

¶8 On December 24, 2014, defendants filed a motion to dismiss plaintiff’s amended

complaint, pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1

(West 2014)). They repeated the arguments they raised in their affirmative defenses, that

plaintiff lacked standing and that the foreclosure action was barred under Rule 113. Defendants

claimed that the defect could not be cured by amendment. Following argument, the court denied

defendants’ motion to dismiss, without prejudice.

¶9 C. Defendants’ Affirmative Defenses to the Amended Complaint

¶ 10 On April 16, 2015, defendants filed an answer to plaintiff’s amended complaint and

repeated their previous affirmative defenses. They argued again that, when the case was filed,

plaintiff lacked standing, as the note attached to the original complaint was indorsed to HUD and

no assignment to plaintiffs was attached. Defendants maintained that the allonge attached to

plaintiff’s amended complaint contained an indorsement executed after the filing of the original

complaint. Defendants supported their answer with judicial admissions made by plaintiff

throughout the proceedings that it was not in possession of an indorsed note at the time of the

original filing. Defendants alleged that plaintiff violated Rule 113 when it amended the

complaint to include the allonge. Defendants also alleged that plaintiff failed to comply with

Title 24, section 203.604, of the Code because plaintiff did not provide for the required face-to­

face meeting with defendants or offer defendants “an opportunity to conduct one.”

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2017 IL App (2d) 160967

¶ 11 D. Striking the Affirmative Defenses, Summary Judgment, and Judicial Sale

¶ 12 Plaintiff filed a motion to strike the affirmative defenses, pursuant to section 2-619.1.

The motion attached a January 16, 2014, assignment of the mortgage without the note, various

affidavits, and a Federal Express tracking label. Plaintiff argued that the standing defense was

insufficiently pleaded because defendants did not properly articulate how plaintiff lacked

standing and defendants failed to support their claim that a violation of Rule 113 compelled

dismissal. Plaintiff maintained that the assignment established its legal capacity as a nonholder

with the rights of a holder when the original complaint was filed.

¶ 13 At the hearing on the motion to strike, plaintiff produced the original note, and the trial

court read a description of it into the record. The trial court determined that plaintiff was a

nonholder with the rights of a holder. Following the hearing, the trial court granted plaintiff’s

motion and struck the affirmative defenses with prejudice.

¶ 14 With the affirmative defenses stricken, the trial court granted plaintiff’s motion for

summary judgment and entered a judgment of foreclosure and sale on July 18, 2016. The

judicial sale occurred, and the court granted plaintiff’s motion to confirm the sale on November

7, 2016. Defendants timely appeal from the trial court’s orders granting plaintiff’s motion to

strike their affirmative defenses pursuant to section 2-619.1 and granting it summary judgment.

¶ 15 II. ANALYSIS

¶ 16 Defendants raise a number of arguments on appeal regarding plaintiff’s legal standing to

bring the foreclosure action, plaintiff’s violation of Rule 113, and plaintiff’s failure to strictly

adhere to the mandated servicing guidelines of Title 24, section 203.604, of the Code. We

initially examine the trial court’s entry of the foreclosure judgment in plaintiff’s favor, the

validity of which rests on whether plaintiff had the ability to bring this suit against defendants.

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2017 IL App (2d) 160967

¶ 17 Plaintiff’s motion to strike defendants’ affirmative defense of standing was brought

pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2016)).

A motion under section 2-619.1 allows a party to combine a section 2-615 (735 ILCS 5/2-615

(West 2016)) motion to dismiss based upon insufficient pleadings with a section 2-619 (735

ILCS 5/2-619 (West 2016)) motion to dismiss based upon certain defects or defenses. 735 ILCS

5/2-619.1 (West 2016); Carr v. Koch, 2011 IL App (4th) 110117, ¶ 25 (citing Edelman, Combs

& Latturner v. Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003)). When the legal

sufficiency of a complaint is challenged by a section 2-615 motion to dismiss, all well-pleaded

facts in the complaint are taken as true and a reviewing court must determine whether the

allegations of the complaint, construed in the light most favorable to the plaintiff, are sufficient

to establish a cause of action upon which relief may be granted. King v. First Capital Financial

Services Corp., 215 Ill. 2d 1, 11-12 (2005). On the other hand, a motion to dismiss under section

2-619 admits the legal sufficiency of the complaint, but asserts affirmative matter that defeats the

claim. Id. at 12. If a cause of action is dismissed due to the affirmative matter asserted in a

section 2-619 motion to dismiss, the question on appeal is whether there is a genuine issue of

material fact and whether the moving party is entitled to judgment as a matter of law. Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 494 (1994). We review de novo an order striking a

pleading pursuant to section 2-619.1. Carr, 2011 IL App (4th) 110117, ¶ 25.

¶ 18 The doctrine of standing requires that a party have a real interest in the action and its

outcome. Wexler v. Wirtz Corp., 211 Ill. 2d 18, 23 (2004). A party’s standing to sue must be

determined as of the time the suit is filed. Deutsche Bank National Trust Co. v. Gilbert, 2012 IL

App (2d) 120164, ¶ 24. “[A] party either has standing at the time the suit is brought or it does

not.” Village of Kildeer v. Village of Lake Zurich, 167 Ill. App. 3d 783, 786 (1988). An action

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2017 IL App (2d) 160967

to foreclose upon a mortgage may be filed by a mortgagee or by an agent or successor of a

mortgagee. Gilbert, 2012 IL App (2d) 120164, ¶ 15.

¶ 19 Typically, lack of standing to bring an action is an affirmative defense, and the burden of

proving the defense is on the party asserting it. Lebron v. Gottlieb Memorial Hospital, 237 Ill.

2d 217, 252 (2010); Bayview Loan Servicing, LLC v. Cornejo, 2015 IL App (3d) 140412, ¶ 12.

¶ 20 To support their argument that plaintiff had no standing to sue them on the date the

foreclosure action was filed, defendants point to the note attached to the original complaint. The

original complaint alleged that plaintiff was the legal holder of the indebtedness of the attached

note. However, the note establishes that it was indorsed to a nonparty to the case. When

plaintiff filed the complaint, the note was indorsed to HUD, not to plaintiff. Indeed, plaintiff

conceded that the note was not indorsed to plaintiff at that time.

¶ 21 In Gilbert, the defendant raised standing as an affirmative defense. In support, the

defendant showed that the note and the mortgage attached to the original complaint identified not

the plaintiff but another mortgagee. Also, the assignment attached to the amended complaint

showed that the interest in the mortgage was not assigned to the plaintiff until several months

after the foreclosure action was filed. Gilbert, 2012 IL App (2d) 120164, ¶ 17. We held that this

evidence met the defendant’s burden to show that the plaintiff lacked standing when the suit was

filed, because the plaintiff was not identified on either the note or the mortgage. The documents

attached to the complaint contradicted the plaintiff’s allegation that it was “the mortgagee” and

they supported the defendant’s argument that the plaintiff did not have an interest in the

mortgage that would confer standing. Because the defendant made a prima facie showing that

the plaintiff lacked standing, the burden shifted to the plaintiff to refute this evidence or

demonstrate a question of fact. Id. ¶ 21.

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2017 IL App (2d) 160967

¶ 22 Similarly here, the note attached to the original complaint showed on its face that it was

not indorsed to plaintiff. At the hearing on defendants’ motion to dismiss plaintiff’s amended

complaint, plaintiff conceded that the note was not indorsed to plaintiff on the date the original

complaint was filed. Plaintiff alleged that the copy of the note attached to its original complaint

was a “copy of the note as it currently exists.” Thus, the allonge, which has no date of execution,

must have been executed after the filing of the original complaint. As defendants observe,

plaintiff’s admission that the note attached to its complaint was in its current form leaves no

other possible interpretation. As in Gilbert, defendants have made a prima facie showing of a

lack of standing, and plaintiff has failed to rebut it.

¶ 23 Defendants further contend that “equally inaccurate” is plaintiff’s position that it was a

“non-holder with rights of a holder” when the action was filed. Plaintiff’s argument rests on the

January 16, 2014, assignment of the mortgage, from HUD to plaintiff. However, “ ‘[a]n

assignment of the mortgage without an assignment of the debt creates no right in the assignee.’ ”

Bristol v. Wells Fargo Bank, National Ass’n, 137 So. 3d 1130, 1133 (Fla. Dist. Ct. App. 2014)

(quoting Vance v. Fields, 172 So. 2d 613, 614 (Fla. Dist. Ct. App. 1965); see also Elvin v.

Wuchetich, 326 Ill. 285, 288-89 (1927) (assignment of mortgage on truck without transferring

note transferred no interest in truck authorizing replevin). Without the assignment of the debt to

plaintiff, which must have occurred after the foreclosure complaint was filed, when the allonge

was executed, the assignment of the mortgage did not give plaintiff the rights of a holder.

¶ 24 Plaintiff also attempts to rebut defendants’ argument by stating that “it proved it

possessed the original note before it filed the lawsuit.” Plaintiff points to its counsel’s affidavit

that established that he possessed the note on plaintiff’s behalf before it filed the foreclosure suit.

A similar contention was raised by the plaintiff in Gilbert. The plaintiff endeavored to challenge

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2017 IL App (2d) 160967

the standing argument by noting that, in an affidavit of an employee of a company that serviced

loans for the plaintiff, he averred that, based on his review of “ ‘the documents contained in the

Gilbert loan file,’ ” the interest was assigned to the plaintiff before the filing of the initial

complaint. Gilbert, 2012 IL App (2d) 120164, ¶ 7. The plaintiff argued that this statement must

be taken as true in the absence of contrary evidence. Id. ¶ 19. Noting that this principle applies

only to admissible evidence, we held that the statement about the date of the assignment was

inadmissible because it was unsupported by any foundation. Id. (citing Complete Conference

Coordinators, Inc. v. Kumon North America, Inc., 394 Ill. App. 3d 105, 108 (2009)).

¶ 25 In this case, plaintiff points to the affidavit of Robert H. Rappe, Jr., managing attorney of

the law firm representing plaintiff. He attached three exhibits to his affidavit. Exhibit 1 is an

image of a computer screen reflecting that the original indorsed note was scanned and imaged

into the firm’s case management system on March 10, 2014, the day before the original

complaint was filed. Exhibit 2 is a copy of the original note, which was also imaged and

electronically stored. Exhibit 3 is the allonge to the note. However, because plaintiff’s name

does not appear on the original note and because the assignment of the note occurred after the

original complaint was filed, these items do not rebut defendants’ standing argument.

¶ 26 Plaintiff cites Cornejo, 2015 IL App (3d) 140412, in support of its argument that

attaching a copy of the note to the foreclosure complaint was prima facie evidence that it owned

the note. In Cornejo, the note attached to the foreclosure complaint was held to be prima facie

evidence that the plaintiff owned the note, even though it lacked an indorsement in blank. Id.

¶ 13. The Third District Appellate Court held that the defendants failed to present any evidence

that the transfer did not occur before the complaint was filed and that the defendants thus failed

to meet their burden of showing that the plaintiff lacked standing. Id. ¶ 14. Here, as in Gilbert,

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2017 IL App (2d) 160967

defendants presented evidence that showed that the assignment of the debt actually took place

after the original complaint was filed and that plaintiff thus lacked standing when the complaint

was filed.

¶ 27 Based on our determination that plaintiff lacked standing, we need not address the other

issues defendants raise.

¶ 28 III. CONCLUSION

¶ 29 For the preceding reasons, we reverse the judgment of foreclosure, vacate the order

approving the sale, and dismiss the foreclosure action.

¶ 30 Judgment reversed; order vacated; action dismissed.

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WELLS FARGO v ELLIS | Hawaii Minute Order HRG MSJ- The significance of challenging the default notice

WELLS FARGO v ELLIS | Hawaii Minute Order HRG MSJ- The significance of challenging the default notice

H/T Dubin Law

WELLS DAVI D FARGO BANK NA

VS.

DAVID WENDELL ELLIS ETAL

 

2018.01.03 Minute Order Hrg Msj by DinSFLA on Scribd

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



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PUERTO RICO CAN’T AFFORD ANOTHER CRISIS, IT NEEDS A MORATORIUM ON ALL FORECLOSURES

PUERTO RICO CAN’T AFFORD ANOTHER CRISIS, IT NEEDS A MORATORIUM ON ALL FORECLOSURES

NewsWeek-

Two days after Hurricane María passed through Puerto Rico, I was able to get in a car and begin what would be the daily task for the next couple of weeks of looking for water and gas. As I stepped outside, I realized that this would not be as with other hurricanes that I had experienced in my childhood. Puerto Rico was destroyed, trees had been stripped out of all their leaves, 100-feet-tall cement poles laying on the ground almost pulverized. It looked like a scene taken out from a movie, and a scary one at that.

Despite this devastating scenario, private equity and other Wall Street companies behind home mortgages continued with their business—filing foreclosures proceedings in Puerto Rican courts to make a profit.

Just last month, Hedge Clippers, a watchdog group I am part of, released an alarming report identifying TPG Capital and its subsidiary Rushmore as the most aggressive company foreclosing families on Puerto Rico. Following the third month anniversary of the devastation left by the tempest, the “Report No. 53: Private Equity and Puerto Rico” was released on December 20, to coincide with protests in several cities calling for an end to all foreclosures on the island.

[NEWSWEEK]

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



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Taibbi: Forget the Memo – Can We Worry About the Banks?

Taibbi: Forget the Memo – Can We Worry About the Banks?

A classic circular kerfuffle in congress this week shifted eyes away from rare bipartisan cooperation on spying powers and bank reform

RollingStone-

The Internet is exploding today with cries of #ReleaseTheMemo, with the GOP throwing a big fat j’accuse at the Democrats. Republicans are pounding the table over what by now is about the millionth news story to be called “worse than Watergate” since the Russia scandal first broke. “People will go to jail!” chirped Florida Republican Matt Gaetz.

The GOP claims congressional committees have been shown a memo detailing shocking Obama-era surveillance abuses involving the Russia case. Dithering town-crier types like Iowa’s Steve King have spent the last day or so insisting to reporters that if only they could see the explosive material, they’d be lighting torches and marching in search of Obama administration security officials to burn as witches.

“The sickening reality has set in,” King yelped.

This trick – i.e. “If only you could see the amazing secret stuff I can’t tell you about, although actually I can” – has been employed with increasing regularity by both sides in the past few years, particularly with regard to #Russiagate.

[ROLLINGSTONE]

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



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Ninth Circuit Clarifies Amount in Controversy Standard Where Borrower Seeks Only “Temporary” Foreclosure Stay Pending Loan Modification Review

Ninth Circuit Clarifies Amount in Controversy Standard Where Borrower Seeks Only “Temporary” Foreclosure Stay Pending Loan Modification Review

NatLawReview-

The Ninth Circuit recently limited the availability of diversity jurisdiction for certain cases with claims involving mortgage loan modifications. Specifically, in Corral v. Select Portfolio Servicing, Inc., the Ninth Circuit held that, where the plaintiff-borrower “seeks only a temporary stay of foreclosure pending review of a loan modification application … the value of the property or amount of indebtedness are not the amounts in controversy.” — F.3d —-, 2017 WL 6601872, at *1 (9th Cir. Dec. 27, 2017). Rather, to satisfy the amount in controversy requirement in such cases, parties must demonstrate that the value of the temporary delay in foreclosure exceeds $75,000, “such as the transactional costs to the lender of delaying foreclosure or a fair rental value of the property during pendency of the injunction” (in addition to any compensatory damages plaintiffs may be seeking). Id. at *5.

In Corral, the plaintiff-borrower filed an action in California state court seeking to enjoin a foreclosure sale until her loan modification application was reviewed and also seeking unidentified compensatory damages and costs. Id. at *2, 3. Defendant removed the action to federal court arguing that the $75,000 amount in controversy requirement had been met because the original principal balance on the loan was $680,000 and the total outstanding indebtedness was in excess of $800,000. Id. at *2. The district court agreed and denied plaintiff’s motion to remand. Id.

[NATLAWREVIEW]

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



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Jared Kushner’s Firm Tied to “Suspicious Transactions” at Deutsche Bank

Jared Kushner’s Firm Tied to “Suspicious Transactions” at Deutsche Bank

Deutsche Bank notified German regulators, and Robert Mueller will likely be given the reports. 

Mother Jones-

A German business magazine is reporting that Deutsche Bank, the German financial giant which is a major lender to both President Donald Trump and his son-in-law Jared Kushner, identified “suspicious transactions” related to Kushner family accounts, and has reported them to German banking regulators. The bank is reportedly willing to provide the information to special prosecutor Robert Mueller’s team of investigators.

Manager Magazin, a respected German business magazine, reported in its latest print edition, which hit German newsstands on Friday, that Paul Achleitner, chairman of Deutsche Bank’s board, had the bank conduct an internal investigation and the results were troubling. Those results have been turned over to the Federal Financial Supervisory Authority—Germany’s bank regulatory agency, which is commonly known as BaFin.

“Achleitner’s internal detectives were embarrassed to deliver their interim report regarding real estate tycoon [Jared] Kushner to the financial regulator BaFin,” the Manager Magazin article, translated from German, reports. “Their finding: There are indications that Donald Trump’s son-in-law or persons or companies close to him could have channeled suspicious monies through Deutsche Bank as part of their business dealings.”

[MOTHER JONES]

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



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TFH 1/21/18 | Exclusive Tell-All Eye-Witness Interview With a Retiring Mainland Big Law Supervising Foreclosure Attorney

TFH 1/21/18 | Exclusive Tell-All Eye-Witness Interview With a Retiring Mainland Big Law Supervising Foreclosure Attorney

COMING TO YOU LIVE DIRECTLY FROM THE DUBIN LAW OFFICES AT HARBOR COURT, DOWNTOWN HONOLULU, HAWAII

LISTEN TO KHVH-AM (830 ON THE AM RADIO DIAL)

ALSO AVAILABLE ON KHVH-AM ON THE iHEART APP ON THE INTERNET

.

.

Sunday – January 21, 2018

 ———————
Exclusive Tell-All Eye-Witness Interview With a Retiring Mainland Big Law Supervising Foreclosure Attorney

 

 

 

 

 

For several years, The Foreclosure Hour has been trying to secure, heretofore unsuccessfully, an interview with an experienced foreclosure attorney willing to reveal the inside story concerning how mortgage fraud is planned and implemented from the highest levels of American Government, through large Mainland law firms, down to the smallest local foreclosure mills.

Finally, we have found one such individual who says he is a regular listener to our show, presently vacationing in Hawaii this week and looking for a home to purchase, planning to retire here, who has expressed his willingness to talk with us and even take questions, if respectful, from our listeners this Sunday.

For obvious reasons our guest, with the highest professional credentials, prefers to keep his identity hidden, who we have agreed only to refer to as “Chuck,” who has promised to reveal the underworld secrets that most of us have heretofore only been guessing about.

Please join us this Sunday provided you can control your emotions and are not susceptible to heart attacks, for otherwise the consequences of listening to what takes place behind the scenes could be dangerous to your health.

Gary Dubin

Please go to our website, www.foreclosurehour.com, and join your fellow homeowners in the Homeowners SuperPac today.

A Membership Application is posted there waiting for your support.

 

 

.
Host: Gary Dubin Co-Host: John Waihee

.

CALL IN AT (808) 521-8383 OR TOLL FREE (888) 565-8383

Have your questions answered on the air.

Submit questions to info@foreclosurehour.com

The Foreclosure Hour is a public service of the Dubin Law Offices

Past Broadcasts

EVERY SUNDAY
3:00 PM HAWAII 
5:00 PM PACIFIC
8:00 PM EASTERN
ON KHVH-AM
(830 ON THE DIAL)
AND ON
iHEART RADIO

The Foreclosure Hour 12

image: The Red Door Studio

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



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Mulvaney requests no funding for Consumer Financial NO-Protection Bureau

Mulvaney requests no funding for Consumer Financial NO-Protection Bureau

Politico-

Every quarter, the Consumer Financial Protection Bureau formally requests its operating funds from the Federal Reserve. Last quarter, former director Richard Cordray asked for $217.1 million. Cordray, an appointee of President Barack Obama, needed just $86.6 million the quarter before that. And yesterday, President Donald Trump’s acting CFPB director, Mick Mulvaney, sent his first request to the Fed.

He requested zero.

In a letter to Fed chair Janet Yellen obtained by POLITICO, Mulvaney wrote that the bureau already has $177 million in the bank, enough to cover the $145 million the bureau has budgeted for its second quarter. Cordray had maintained a “reserve fund” in case of overruns or emergencies, but Mulvaney said he didn’t see any reason for it, since the Fed has always given the bureau the money it needs. Mulvaney, who is also Trump’s budget director, noted that instead of advancing the funds to the bureau, the Fed could return them to the Treasury and reduce the deficit.

[POLITICO]

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



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CFPB says it will reconsider its rule on payday lending

CFPB says it will reconsider its rule on payday lending

CNN-

The Consumer Financial Protection Bureau has taken the first step to killing or revising the payday lending rule it finalized only a few months ago.

The watchdog agency said in a statement Tuesday that it intends to “reconsider” a regulation, issued in October, that would have required payday lenders to vet whether borrower can pay back their loans. It also would have restricted some loan practices.

If the rule is thrown out or rewritten, it would mark a major shift for an agency that had zealously pursued new limits on banks and creditors before Mick Mulvaney, President Trump’s budget director, became the CFPB’s acting director.

[CNN]

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



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Lawsuit in U.S. accuses nine banks of rigging Canadian rate benchmark

Lawsuit in U.S. accuses nine banks of rigging Canadian rate benchmark

Reuters-

Nine large banks, including six from Canada, have been accused in a lawsuit of conspiring to rig a Canadian rate benchmark to improve profits from derivatives trading.

The complaint, filed by a Colorado pension fund in U.S. District Court in Manhattan late on Friday, accused Royal Bank of Canada RY.TO, Toronto-Dominion Bank TD.TO, Bank of Nova Scotia BNS.TO and the other banks of suppressing the Canadian Dealer Offered Rate (CDOR) from Aug. 9, 2007, to June 30, 2014.

According to the Fire & Police Pension Association of Colorado, the banks hoped to reduce interest they would owe investors on CDOR-based derivatives transactions in the United States, including swaps and Canadian dollar futures contracts, and generate potentially billions of dollars of improper profit.

[REUTERS]

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



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A Bad Start on Reforming Fannie and Freddie

A Bad Start on Reforming Fannie and Freddie

The Trump administration’s actions suggest it’s unwilling or unable to fix housing finance.

Bloomberg-

This was supposed to be the year when the U.S. government would finally address one of the biggest pieces of unfinished business from the 2008 financial crisis: reforming Fannie Mae and Freddie Mac, the quasi-state entities that dominate the U.S. mortgage market.

Unfortunately, the Trump administration’s actions so far suggest it’s unwilling or unable to handle the task.

 The collapse of the entities during the financial crisis offers a case study on how public-private partnerships can go wrong. Mandated by Congress to promote home ownership, they operated as privately owned corporations that bought and guaranteed mortgage loans. They delivered big profits for private shareholders, thanks in large part to the market’s assumption that the government would bail them out in a crisis. In 2008, that assumption proved correct: Amid heavy losses, the Treasury had to step in with a $187 billion capital injection and put the entities into a government conservatorship.
© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Castillo v. Nationstar | CA DC- This is one of the few cases where the settlement is public. The order explains some of it, but the Elizabeth Letcher declaration has the meat.

Castillo v. Nationstar | CA DC- This is one of the few cases where the settlement is public. The order explains some of it, but the Elizabeth Letcher declaration has the meat.

H/T Reader

Documents that could not be found were suddenly found. Endless refusals by Nationstar to answer RESPA letters and other inquiries. It is the best picture of how bad Nationstar treats its customers.

Castillo v. Nationstar Summ Jud. Order 11.22.2016 by DinSFLA on Scribd

Castillo ECF 123 Lethcher Dec. 03.28.2017 by DinSFLA on Scribd

Castillo v. Nstar Order Fees 12.20.2017 by DinSFLA on Scribd

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



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