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Bank of America raises settlement offer for toxic mortgage deals to $7B cash. DOJ wants $10B

Bank of America raises settlement offer for toxic mortgage deals to $7B cash. DOJ wants $10B

NY TIMES-

Bank of America and federal prosecutors have accelerated their negotiations to resolve an investigation into the bank’s sale of troubled mortgage securities before the financial crisis. The two sides, however, remain far apart on crucial issues and a settlement remained elusive late Wednesday, even after the bank significantly raised its offer.

The bank’s lawyers and Justice Department prosecutors met in Washington on Wednesday to discuss the size of a potential cash penalty, a major sticking point in the settlement talks, according to people briefed on the meeting. Heading into the meeting, the Justice Department was demanding roughly $17 billion to settle the case, more than $10 billion in the form of a cash penalty and the rest in so-called soft dollar payments to help struggling homeowners.

The bank was offering a total of $13 billion, the people said, including $4 billion in cash. The bank narrowed the gap on Wednesday, the people said, raising its cash offer to about $7 billion and its total proposal to roughly $14 billion.

[NEW YORK TIMES]

image: Victoria Will/Reuters

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FANNIE MAE *JUST PUBLISHED THIS 1,334 PAGE SELLER’S GUIDE*

FANNIE MAE *JUST PUBLISHED THIS 1,334 PAGE SELLER’S GUIDE*

https://www.fanniemae.com/content/guide/sel072914.pdf
ATTACHED PDF IS DOWNLOADED FROM ABOVE LINK – YOU CAN DOWNLOAD IT DIRECTLY

Major web page: ” Printed copies may not be the most current version.  For the most current version, go to the onilne version at https://www.fanniemae.com/singlefamily/originating-underwriting

IN THE ATTACHED PDF, SEARCH ON “NOTE ENDORSEMENT” AND “ASSIGNMENT”

CRITICAL SECTIONS:
Page
B8-3-02, Special Note Provisions and Language Requirements (08/20/2013)          974
B8-3-03, Signature Requirements for Notes (10/22/2013)                                                 975
B8-3-04, Note Endorsement (12/20/2011)                                                                                977
- Note Endorsement
- Using an Allonge for the Endorsement
- Signature Requirements for Endorsements
B8-6. Mortgage Assignments                                                                                                           995
B8-7, Mortgage Electronic Registration System (MERS)                                                  1001

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Chavez v. JPMorgan Chase Bank, N.A. | Chase did not acquire the Mortgage loan as part of the sale from the FDIC. Instead, pursuant to a Mortgage Loan Purchase and Sale Agreement (“P&S”) by and between Washington Mutual Bank, FA (“WAMU”) and Bank of America, N.A. (“BOA”)

Chavez v. JPMorgan Chase Bank, N.A. | Chase did not acquire the Mortgage loan as part of the sale from the FDIC. Instead, pursuant to a Mortgage Loan Purchase and Sale Agreement (“P&S”) by and between Washington Mutual Bank, FA (“WAMU”) and Bank of America, N.A. (“BOA”)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

JUAN C. CHAVEZ,
Plaintiff,

v.

JPMORGAN CHASE BANK, N.A.
Defendant.

MOTION OF JPMORGAN CHASE BANK, N.A.
FOR LEAVE TO FILE AMENDED COUNTERCLAIM

EXCERPT:

Chase did not acquire the Mortgage loan as part of the sale from the FDIC. Instead, pursuant to
a Mortgage Loan Purchase and Sale Agreement (“P&S”) by and between Washington Mutual Bank, FA
(“WAMU”) and Bank of America, N.A. (“BOA”), WAMU sold the Plaintiff’s Mortgage loan to BOA
on or about January 26, 2007. Pursuant to the P&S, WAMU retained servicing rights to the Plaintiff’s
Mortgage loan. “On September 25, 2008, the Office of Thrift Supervision (“OTS”) declared WAMU to
be insolvent and appointed the Federal Deposit Insurance Corporation (“FDIC”) as Receiver for
WAMU. The FDIC accepted the appointment as Receiver on September 25, 2008.” Id. at ¶ 5. “On the
same day that the FDIC was appointed as Receiver of WAMU, it sold certain assets and certain
liabilities of WAMU to Chase pursuant to a written Purchase and Assumption Agreement.” Id. at ¶ 6.
Accordingly, Chase acquired the servicing rights to the Plaintiff’s Mortgage loan as part of the asset
sale from the FDIC. “Chase continues to service the plaintiff’s Mortgage loan for [BOA] and is
authorized to bring actions against borrowers for breach of their payment obligations.” Id. at ¶ 9.

[...]

Chavez v. JPMorgan Chase Bank, N.A. MOTION OF JPMORGAN CHASE BANK, N.A. FOR LEAVE TO FILE AMENDED COUNTERCLAIM

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Chavez v. JPMorgan Chase Bank, N.A. AMENDED COUNTERCLAIM OF JPMORGAN CHASE BANK, N.A.

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Judge Rakoff Orders Bank of America’s Countrywide ordered to pay $1.3B “BRAZEN FRAUD”

Judge Rakoff Orders Bank of America’s Countrywide ordered to pay $1.3B “BRAZEN FRAUD”

Bloomberg-

Bank of America Corp.’s Countrywide unit was ordered to pay $1.3 billion in penalties for defective mortgage loans sold to Fannie Mae and Freddie Mac in the run-up to the 2008 financial crisis, a little more than half of what the federal government had requested.

U.S. District Judge Jed Rakoff in Manhattan issued the civil penalty against the Charlotte, North Carolina-based bank today in the first mortgage-fraud case brought by the federal government to go to trial.

Countrywide and Rebecca Mairone, a former executive with the mortgage lender, were found liable by a jury in Manhattan federal court in October for selling thousands of bad loans to the two government-sponsored enterprises. Mairone was ordered to pay $1 million.

[BLOOMBERG]

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Fannie Mae Announcement – All FNMA foreclosures in DC must go judicial — Adverse Action Notices, Allowable Foreclosure Attorney Fees, Evaluation Model Clauses, and the Master Custodial Agreement

Fannie Mae Announcement – All FNMA foreclosures in DC must go judicial — Adverse Action Notices, Allowable Foreclosure Attorney Fees, Evaluation Model Clauses, and the Master Custodial Agreement

Allowable Foreclosure Attorney Fees
Fannie Mae is updating the maximum allowable foreclosure attorney fees for all Fannie Mae mortgage loans secured by properties located in the state of Pennsylvania and the District of Columbia. For purposes of this Notice, the term “active” is defined as a foreclosure matter that has not yet gone to foreclosure sale, and has not been concluded by some other event, for example: a Mortgage Release™, short sale, mortgage loan modification, payoff, or reinstatement.

The updated Allowable Foreclosure Attorney Fees Exhibit is available on Fannie Mae’s website.
.
Pennsylvania
The new maximum allowable attorney fee for judicial foreclosures in the State of Pennsylvania is $2,350.
This fee applies to all matters referred to counsel for initiation of foreclosure on or after June 1, 2012, by the
present or prior servicer, provided the matter is still active as of the date of this Servicing Notice.
.
District of Columbia
The new established maximum allowable attorney fee for judicial foreclosures in the District of Columbia is $2,250.
All new Fannie Mae foreclosures in the District of Columbia must be commenced as judicial foreclosures.
All pending Fannie Mae non-judicial foreclosures in the District of Columbia that have not proceeded to sale must be dismissed and converted to judicial foreclosures.
This fee applies to all matters referred to counsel for initiation of foreclosure on or after April 1, 2014, by the
present or prior servicer, provided the matter is still active as of the date of this Servicing Notice.
.
NOTE:
Hawaii’s non-judicial fee has been updated to “N/A” to reflect the Servicing Notice, dated June 10, 2011,requiring all new Fannie Mae foreclosures in Hawaii to be commenced as judicial foreclosures.
[...]
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SALVATI vs DEUTSCHE BANK NATIONAL TRUST COMPANY, N.A., BANK OF AMERICA HOME LOANS SERVICING,; MCCABE, WEISBERG & CONWAY, P.C., a law firm debt collector —  Class Action Green Light – charging improper attorneys’ fees in foreclosure proceedings

SALVATI vs DEUTSCHE BANK NATIONAL TRUST COMPANY, N.A., BANK OF AMERICA HOME LOANS SERVICING,; MCCABE, WEISBERG & CONWAY, P.C., a law firm debt collector — Class Action Green Light – charging improper attorneys’ fees in foreclosure proceedings

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________
No. 13-1972
_____________
GENE W. SALVATI,
Appellant

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, N.A., a subsidiary of
Deutsche Bank, AG; BANK OF AMERICA HOME LOANS SERVICING, a
subsidiary of Bank of America, N.A.; MCCABE, WEISBERG & CONWAY, P.C.,
a law firm debt collector
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2:12-cv-00971
District Judge: The Honorable Arthur J. Schwab
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 13, 2014
Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

(Filed: July 29, 2014)
_____________________

OPINION
_____________________

SMITH, Circuit Judge.

Gene Salvati (“Salvati”) brought this putative class action lawsuit, on behalf
of himself and other similarly situated former and current homeowners in
Pennsylvania, alleging that defendants, Deutsche Bank National Trust Company,
N.A., a subsidiary of Deutsche Bank AG (“Deutsche Bank”), Bank of America
Home Loans Servicing, a subsidiary of Bank of America, N.A. (“Bank of
America”), and McCabe, Weisberg & Conway, P.C. (“McCabe”) committed acts
in violation of state and federal consumer protection laws in connection with
residential mortgage foreclosure proceedings. The United States District Court for
the Western District of Pennsylvania dismissed the entirety of Salvati’s claims. For
the reasons set forth below, we will affirm in part, reverse in part, and remand.

[...]

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County filing suit against mortgage database M.E.R.S.

County filing suit against mortgage database M.E.R.S.

Keep using Wall Street’s Straw-man MERS and one day you will realize you’ve never owned your home or paid the right entity off!!

YOU’ve been warned!


The Press & Standards-

Colleton County is joining the other counties in the 14th Circuit in a legal challenge to how many mortgages are handled in the United States.

The lawsuit to be filed against Mortgage Electronic Registration Systems seeks to have the database owned by nearly two dozen lenders follow the letter of South Carolina law in recording property records.

Each county’s register of deeds is required to keep records on the liens, like a mortgage, against properties in the county.

[THE PRESS & STANDARDS]

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BANK OF NEW YORK MELLON v. Lopes, NM: Court of Appeals 2014 | Another Bad Day for MERS–This Time in New Mexico (MERS cannot assign the note and thus create standing in RMBS Trust)

BANK OF NEW YORK MELLON v. Lopes, NM: Court of Appeals 2014 | Another Bad Day for MERS–This Time in New Mexico (MERS cannot assign the note and thus create standing in RMBS Trust)

THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS OF THE CWABS INC., ASSET-BACKED CERTIFICATES, SERIES 2006-16, Plaintiff-Appellee,
v.
SUZANNE LOPES, Defendant-Appellant, and
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. (SOLELY AS NOMINEE FOR LENDER AND LENDER’S SUCCESSOR AND ASSIGNS) and OSCAR D. FREITES, Defendants.

Docket No. 32,310.
Court of Appeals of New Mexico.

July 22, 2014.
The Castle Law Group, LLC, Peggy A. Whitmore, Elizabeth Mason, Albuquerque, NM, for Appellee.

Suzanne Lopes, Albuquerque, NM, Pro Se Appellant.

OPINION

VIGIL, Judge.

{1} Defendant, Suzanne Lopes (Homeowner), appeals from the district court order granting summary judgment in favor of Plaintiff, The Bank of New York Mellon (the Bank). Homeowner contends, among other things, that the Bank failed to show that it had standing to bring its foreclosure claim. We agree with Homeowner and reverse.

I. BACKGROUND

{2} Homeowner executed a promissory note to Countrywide Home Loans, Inc. (Countrywide), in the amount of $140,000 for the purchase of a home. Homeowner also signed a mortgage contract with Mortgage Electronic Registration Systems (MERS), as nominee for Countrywide, as security for the loan. On July 6, 2011, MERS assigned Homeowner’s mortgage to the Bank. On August 4, 2011, the Bank filed a complaint for foreclosure, asserting that the loan was in default. The complaint asserted that “[the Bank] is the owner of the [m]ortgage and the holder in due course of the [n]ote.” The Bank attached to the complaint copies of the mortgage and the mortgage assignment. Representing herself, Homeowner answered, asserting that to bring the action, the Bank was required to own both the mortgage and the promissory note. Because there was no evidence that the Bank owned the note, Homeowner contended that the Bank had no standing.

{3} On September 22, 2011, as an exhibit to the Bank’s response to a motion filed by Homeowner to disqualify counsel, the Bank attached a copy of a promissory note from Homeowner to Countrywide. The note was indorsed in blank by Michelle Sjolander, Executive Vice President of Countrywide. The indorsement was undated and appears to be signed by stamp rather than by hand. No evidence was presented to show when or how the Bank came into possession of the note. In any case, the Bank asserted that the assignment of the mortgage by MERS “effectively assign[ed] the [n]ote as well because . . . the [n]ote is secured by the [m]ortgage.” The Bank then filed a motion for summary judgment, which the district court granted, and it filed a decree of foreclosure on the home in favor of the Bank.

{4} Homeowner appeals, arguing that the Bank has no right to foreclose, which we construe to mean it has no standing to bring the action. In its amended answer brief, the Bank asserts that a copy of the mortgage and assignment of mortgage were attached to the original complaint and that substantial evidence supports the finding by the district court that it was a holder under the New Mexico Uniform Commercial Code (UCC) of Homeowner’s note.

II. DISCUSSION

{5} On appeal, Homeowner raises several issues in addition to standing. Because our disposition of the standing issue is dispositive, we do not reach the merits of the other issues.

A. Standard of Review

{6} “Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. We review issues of law de novo. Id. “The movant need only make a prima facie showing that he is entitled to summary judgment. Upon the movant making a prima facie showing, the burden shifts to the party opposing the motion to demonstrate the existence of specific evidentiary facts which would require trial on the merits.” Roth v. Thompson, 1992-NMSC-011, ¶ 17, 113 N.M. 331, 825 P.2d 1241. Because we hold that there are material issues of fact and matters of law that preclude summary judgment, we reverse the order granting summary judgment to the Bank.

B. The Bank Lacks Standing

{7} Our Supreme Court “clarified that standing is a jurisdictional prerequisite.” Deutsche Bank Nat’l Trust Co. v. Beneficial N.M. Inc., 2014-NMCA-___, ___ P.3d ___, ¶ 8 (No. 31,503, May 1, 2014); see also Bank of N.Y. v. Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (“[L]ack of standing is a potential jurisdictional defect.” (alteration, internal quotation marks, and citation omitted)). Therefore, standing must be established as of the commencement of a suit. Bank of N.Y., 2014-NMSC-007, ¶ 17 (“[S]tanding is to be determined as of the commencement of suit.” (alteration in original) (internal quotation marks and citation omitted)); Deutsche Bank, 2014-NMCA-___, ¶ 8 (“[S]tanding . . . must be established at the time the complaint is filed.”); Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992) (“[S]tanding is to be determined as of the commencement of suit[.]“).

{8} In order for the Bank to establish standing to bring a suit for foreclosure against Homeowner, it was required to demonstrate the right to enforce both the promissory note and the mortgage lien on the property at the time it filed its complaint. See Bank of N.Y., 2014-NMSC-007, ¶ 17 (stating that the bank had the burden of establishing ownership of the note and the mortgage under the UCC at the time it filed suit); see also Deutsche Bank, 2014-NMCA-___, ¶ 8 (stating that in order to demonstrate standing in a foreclosure case, a lender must establish at the time of the complaint: “(1) a right to enforce the note, which represents the debt, and (2) ownership of the mortgage lien upon the debtor’s property”). The standing issue in this case pivots on whether the Bank demonstrated that it was entitled to enforce the note.

{9} The right to enforce negotiable instruments, which include notes for home loans like that of Homeowner, is governed by the UCC. See Bank of N.Y., 2014-NMSC-007, ¶ 19 (stating that notes for home loans are negotiable instruments and that the UCC governs enforcement of negotiable instruments). To establish the right to enforce Homeowner’s note under the UCC, the Bank was required to prove that at the time suit was filed, it was: “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument.” NMSA 1978, § 55-3-301 (1992). Because the Bank asserted in its complaint that it was a “holder in due course[,]” and on appeal argues that it was a holder,[1] we consider only whether the Bank had standing to bring suit as a holder, the first of the three ways to establish the right to enforce a negotiable instrument under the UCC.

{10} “Holder” is a term of art within the UCC. While it is necessary to possess a negotiable instrument to qualify as a holder, possession of a negotiable instrument is not of itself necessarily sufficient. See Bank of N.Y., 2014-NMSC-007, ¶ 21 (“The first requirement of being a holder is possession of the instrument. However, possession is not necessarily sufficient to make one a holder.” (internal quotation marks and citation omitted)). Because Homeowner’s note was originally made payable to Countrywide, not the Bank, this case concerns a non-payee to a note asserting the right to enforce as a holder. The UCC provides two paths by which a third party to a note can establish the right to enforce as a holder: (1) possession of the note properly indorsed specifically to the third party; or (2) possession of the note properly indorsed in blank—that is, properly indorsed but not to an identified person or entity. See NMSA 1978 § 55-1-201(b)(21) (2005) (stating that a holder is a person in possession of a negotiable instrument payable: (1) to bearer, or (2) to an identified person and who is that person); see § 55-1-201(b)(5) (identifying bearer paper as a negotiable instrument that has an indorsement in blank).

{11} The Bank argues that because it attached the assignment of mortgage made to the Bank by MERS that the Bank was entitled to enforce the note. This is not consistent with Bank of N.Y., which was decided by our Supreme Court while this case was pending. In Bank of N.Y., our Supreme Court concluded that MERS “is merely a nominee for [the lender] in the underlying [m]ortgage” and, as such, “lacked any authority to assign [the homeowners'] note.” 2014-NMSC-007, ¶ 35 (internal quotation marks omitted). The Court observed that a note and a mortgage serve distinct contractual functions—the note is the debt while the mortgage is a pledged security for the debt. Id. ¶ 17. Accordingly, the MERS assignment of mortgage to the Bank was ineffective to establish the Bank’s right to enforce the note.

{12} Neither the Bank’s attachment of a copy of Homeowner’s note, indorsed in blank, to its September 22, 2011 pleading nor its production of that note at the summary judgment hearing on July 17, 2012 established the Bank’s standing to bring the suit for foreclosure against Homeowner on July 6, 2011. Under the UCC, possession of a note properly indorsed in blank establishes the right to enforce that note. See id. ¶ 24 (stating a blank indorsement makes the negotiable instrument bearer paper and therefore payable to the person who is in possession). But again, in order to establish standing to bring a suit for foreclosure, the right to enforce the note must be established at the time the complaint is filed. See id. ¶ 17 (“Standing is to be determined as of the commencement of the suit . . . . the [bank] had the burden of establishing timely ownership of the note and the mortgage to support its entitlement to pursue a foreclosure action.” (alteration, internal quotation marks, and citation omitted)). In Deutsche Bank, we concluded that a note with an undated indorsement in blank, which was not produced at the time the complaint was filed, but only at trial, was insufficient to establish a bank’s standing to foreclose. 2014-NMCA-___, ¶ 13. As in Deutsche Bank, the Bank’s failure to establish that it had the right to enforce Homeowner’s note as of the date the complaint for foreclosure was filed constitutes a failure to establish the Bank’s standing to bring the suit and a jurisdictional defect.

{13} Because the Bank failed to establish that it had the right to enforce Homeowner’s note as of the time of the complaint, the Bank lacked standing to file a suit for foreclosure against Homeowner.

CONCLUSION

{14} The district court order is reversed, and this case is remanded for further proceedings consistent with this Opinion.

{15} IT IS SO ORDERED.

JAMES J. WECHSLER, Judge and TIMOTHY L. GARCIA, Judge, concurs.

[1] Holders in due course under the UCC are a subset of holders who “took the instrument (i) for value, (ii) in good faith, [and] (iii) without notice that the instrument is overdue or has been dishonored[,]” among other requirements. NMSA 1978, Section 55-3-302(a)(2) (1992). Holders in due course are immunized from certain “personal defenses” generally available to the maker of a note. See Cadle Co., Inc. v. Wallach Concrete, Inc., 1995-NMSC-039, ¶ 8, 120 N.M. 56, 897 P.2d 1104. We do not consider the Bank’s assertion of holder in due course status because the parties ignore it and because disposition of the case does not require our consideration thereof.

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Improper foreclosures have jammed up homeowners who purchased the properties from banks leading to a late-session push for legislation that opponents claim would unfairly bar those who lost their homes from winning back the titles

Improper foreclosures have jammed up homeowners who purchased the properties from banks leading to a late-session push for legislation that opponents claim would unfairly bar those who lost their homes from winning back the titles

Telegram-

Improper foreclosures have jammed up homeowners who purchased the properties from banks leading to a late-session push for legislation that opponents claim would unfairly bar those who lost their homes from winning back the titles.

The bill (S 1987) would create a one-year period starting the day it takes effect as law where those who lost homes because of improper foreclosures could sue to regain the title. Going forward, the House and Senate have differed on the window of time until any discrepancy in title would be cleared by another document. The legislation would not limit those who lost homes from suing banks for monetary damages.

“We’re hoping frankly that the bill goes nowhere,” said Roxanne Reddington-Wilde, treasurer of the Massachusetts Alliance Against Predatory Lending. Though the organization opposes both versions, Reddington-Wilde said the alliance prefers language recently adopted in the House that would provide a 10-year window going forward rather than the 3-year window approved by the Senate in January.

[TELEGRAM]

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DUBIN LAW Homeowners SuperPAC

DUBIN LAW Homeowners SuperPAC

John Waihee a member of Dubin Law firm is the former Governor of Hawaii.

The Super PAC is a unique Homeowners Bill of Rights and Wrongs.

1. a new simplified and flexible, mandatory, five-page maximum, borrower-friendly form of mortgage, abolishing foreclosures in favor of conversion options protecting possession and equity;

 2. A new mandatory state recording system, requiring proof of ownership of mortgage loans, or otherwise their escheat to the state to do with them as the people of each state decide;

 3. The mandatory recording of copies of all promissory notes to end the rampant fraud in the present system and the threat to valid titles, and all of the usual phony chain of title disputes; and

 4. The formation of a specialized mortgage court in each recorder’s jurisdiction staffed by knowledgeable judges to decide mortgage loan challenges.
And much more.

Contact information:

Homeowners Super PAC
Suite 3100
55 Merchant Street
Honolulu, Hawaii 96813
Office: 808-585-8880
Fax:  808-585-8881
.
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Vasquez v. Deutsche Bank | Texas First Circuit – REVERSED & REMANDED for Homeowner to Claim Quiet Title

Vasquez v. Deutsche Bank | Texas First Circuit – REVERSED & REMANDED for Homeowner to Claim Quiet Title

H/T MSFRAUD

Court of Appeals
First District of Texas
NO. 01-13-00220-CV

WINONA FLIPPON VAZQUEZ, Appellant

V.

DEUTSCHE BANK NATIONAL TRUST COMPANY, N.A., Appellee

Appeal from the 281st District Court of Harris County. (Tr. Ct. No. 2012-21582).

This case is an appeal from the final order signed by the trial court on February 18,
2013. After submitting the case on the appellate record and the arguments properly raised
by the parties, the Court holds that there was reversible error in the portion of the trial
court’s order granting summary judgment for the appellee, Deutsche Bank National Trust
Company, N.A., as to the quiet-title claim of the appellant, Winona Flippon Vazquez.

Accordingly, the Court reverses this portion of the trial court’s order and remands the
quiet-title claim.

The Court orders that the appellee, Deutsche Bank National Trust Company, N.A.,
pay all appellate costs.

The Court orders that this decision be certified below for observance.

Judgment rendered July 24, 2014.

Panel consists of Chief Justice Radack, Justice Massengale, and Justice Huddle. Opinion
delivered by Justice Massengale.

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SB1987 | FACT SHEET: OPPOSE ACT TO CLEAR TITLE TO FORECLOSED PROPERTIES

SB1987 | FACT SHEET: OPPOSE ACT TO CLEAR TITLE TO FORECLOSED PROPERTIES

H/T Richard Zombeck

Massachusetts Alliance Against Predatory Lending
www.maapl.info

FACT SHEET: OPPOSE ACT TO CLEAR TITLE TO FORECLOSED PROPERTIES

Senate Bill 1987

Massachusetts’ Supreme Judicial Court has declared thousands of foreclosures void and homeowner rights violated. Massachusetts has a problem going forward with hundreds of thousands of titles to property, 65,000 of which were “foreclosed” homes. S1987’s attempt to deny former owners the right to regain illegally foreclosed property is not the same as clearing titles and is not the solution. It disparately impacts women and communities of color foreclosed on early in the crisis before the SJC recognized the many lender illegalities in foreclosure.

What Does This Bill Do? It does nothing to clear title – it attempts to exclude the party most likely to sue.
The Senate version of the bill shortens the time to overturn an illegal foreclosure after filing a foreclosure deed and accompanying affidavit from the long standing, 20 year statute of limitations to 3 years for future auctions and to only one year for those previously foreclosed. The bill provides no notice to MA homeowners of this curtailing of long-standing, property rights. In passing the bill on July 23rd, 2014, House leadership changed the bill to limit the decrease from 20 years to 10 for both present and future foreclosed homeowners. This change will at least protect homeowners in the present crisis.
The bill offers an exemption only if the former homeowner sues or is sued, knows to ask and can convince a judge to give permission to file a copy of their complaint in the Registry of Deeds. Getting such an allowance can be hard since court rulings on foreclosed homeowners’ claims against lenders’ illegal procedures are still evolving.
While S1987 provides triple, monetary damages if the foreclosing lender is found to have lied on its affidavit, the home in which people raised their children, invested all their incomes and participated in their communities is forever gone. A home is not just a financial investment. S1987 misses that reality: denying our right to fight for and reclaim an illegally foreclosed home and limiting judgment to financial recompense which can never repay what is lost when a home is taken illegally.

Will S1987 protect innocent, new homeowners who purchase post-foreclosure?
The clear majority of new purchasers (58%) are big, cash-only investors – not new owner-occupants or small local investors. Only homeownership and long-term stable rental ensure healthy neighborhoods.
The recording of any legal challenge to title –lis pendens– exists specifically to protect future buyers.
However, only a judge can approve such a filing (G.L. Chapter 184 sect. 15). When legal rulings evolve so quickly, judges are learning like the rest of us. Prior to each recent major SJC ruling in foreclosed homeowners’ favor, most judges ruled against those same legal claims, declaring arguments “frivolous” when homeowners attempted to appeal. Judges have not been able to fully assess what will or will not be determined a “frivolous challenge” in the near future and thus merit recording in the Registry now. If a homeowner is permitted to record the initial claim, they are also laid open to counter-suits that their filing was frivolous.
S1987 does nothing to clear title. The now common problems of broken chains of title to mortgages and missing notes means there may be other parties besides former homeowners who have rights unaffected by S1987. The only sure protection for new or old homeowners will be swift adjudication of or another remedy to the now numerous valid challenges to post-foreclosure titles and broken chains of ownership of mortgages and notes.

Can the foreclosure deed affidavit be considered as “conclusive evidence” of a valid foreclosure?
The foreclosure affidavit filed at the Registry in a foreclosure is a purposefully abbreviated form created by the legislature to memorialize the bare bones of a foreclosure. As has been adjudicated by the Massachusetts Supreme Judicial Court in two decisions in the last two years:
“The statutory form was intended as an alternative to the more lengthy form prescribed by G.L. c. 244, §
15,… The purposes of a statutory form are…: to be recorded with the foreclosure deed and “secure the preservation of evidence that the conditions of the power of sale… have been complied with… Such an
affidavit is not conclusive proof of compliance with G.L. c. 244, § 14.”
The statutory affidavit covers none of the legal challenges that have been the critical breakthrough defenses against illegal foreclosures in the last few years: a mortgage having sub-prime characteristics, a broken chain of title to the mortgage, lacking an enforceable note, proper service on the homeowner of the notice of the auction, strict compliance with the right to cure period, etc. The affidavit S1987 attempts to elevated to a “conclusive evidentiary” status would require creation of a lengthier affidavit to cover the most salient issues. The abbreviated version used for decades cannot be elevated to proof of legal foreclosure. “Evidence” by its very nature must be the subject of scrutiny in court. “Conclusive evidence” without adjudication is a legal impossibility.

Can a curtailed time period to sue be fair when courts broaden the number of winnable offenses monthly?
Can the outcome of a lawsuit best predicted by the date it is brought be fair? If previously foreclosed homeowners had been limited to 1 year in 2008, none of the now common legally successful challenges to foreclosure could win in court then.

What new claims will become winnable in coming months?
S1987 will drown our Civil Court system in legal claims. As the state judiciary has grasped the many problems in the procedures of mortgaging and foreclosure of homes, they have moved to enforce our laws more and more completely. A significant percentage of the 65,000+ households that were foreclosed since 2007 now have valid and potentially winnable legal challenges to regain their title. The Massachusetts courts will be deluged as homeowners and their advocates rush to file suit on now viable claims within one year. A small percentage of such filings (1,300) will mean slightly fewer lawsuits in one year than were filed in the last six!

S1987 unjustly lacks any notification to former or present homeowners of vast cut in right to sue
S1987 provides a one year window for the over 65,000 foreclosed homeowners since 2007 to sue and get a copy of their complaint recorded at the local registry of deeds, rather than the traditional 20, a serious curtailment of traditional rights. The House bill, as amended, improves a still flawed bill by increasing the period to 10 years. Homeowners deserve notification that the state has changed the time period. S1987 includes no provision. Nor would S1987 notify future foreclosed homeowners of their Senate-proposed three year window to sue.
A homeowner will not know when their clock to sue starts. No Massachusetts law requires a deadline for recording a foreclosure deed and subject affidavit. S1987 does not fix this nor require notification to the supposed former homeowner of the filing. Currently deeds are recorded from 1 to 21 months after auction. No ‘foreclosed’ homeowner can be expected to check every week for the date a foreclosure deed is recorded.

Shouldn’t laws reverse the huge economic loss to the state rather than make that impossible?
Conservatively, the 65,000+ Massachusetts foreclosures represent a $20-$40 billion loss in wealth to the state’s households. The vast majority of those foreclosures were done by out of state lenders, who took almost all of those billion out of our state. It is well recognized that the loss of value in a home represents a concomitant loss of spending power representing additional billions of dollars of lost economic activity and spending in the Commonwealth. Studies also show concomitant unemployment and job losses, negative health impacts, much lower school performance by children, the tearing apart of the fabric of our communities, losses in property tax revenue to our municipalities, increase in crime and its concomitant costs. We should support our residents to get their homes back, receive justice they deserve, bring their pillaged wealth back and rebuild our economy.

Our Housing Market is Still Unstable: S1987 does not help
S1987 will not stabilize the housing market. MAAPL, the Mass Bankers Association, and Commissioner of Banks all stated publicly that they do not believe foreclosures are over. Spring 2014 foreclosures spiked again: March, April and May’s petitions to foreclose and June auctions more than doubled. Percentages over the prior year were still far higher than the height of the then believed to be devastating foreclosure crisis of the early 1990s.
While the initial cause of the foreclosures and damage to our housing market appeared to be sub-prime lending policies, evidence now shows that the damage was caused by the huge housing bubble. Now that property prices have dropped down closer to the normal historical curve, those hugely overpriced mortgages are still common place in our state. These continue to destabilize neighborhoods and our housing market as a whole. Surface solutions that allow some properties to be purchased more easily will not address the underlying problems or the continuing accumulation of damages from the foreclosures that have happened already.

S1987 Only Claims to Address a Small Part of the Widespread Ruined Titles in our Registries
In addition to the problems exposed in the Ibanez ruling of “broken chain of title to the mortgage,” numerous additional examples of other chain of title to mortgage problems exist, such as the recent Eaton decision’s on “holding the note” and a dozen others highlighted in seminal, SJC decisions in the last couple years alone. These problems compromise the marketability of title. Their property record contains the same legal violations. What are the homeowners to do who face these problems each and every month over the next 30 to 50 years when they or their heirs go to refinance or sell their home? S1987 is a response to the tip of the Housing Bubble/Housing Crash iceberg. It does not resolve title problems either for those who have been illegally foreclosed or the much larger percentage of homeowners who will face these problems in the decades going forward. Damage to titles can be located. The state should commit to finding them and providing a genuine repair.

maaplinfo@yahoo.com    www.MAAPL.info Legislative Contact: Grace Ross, 617-291-5591

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Who Advised Cuomo on Mortgage Industry Investigation? A Mortgage Lobbyist

Who Advised Cuomo on Mortgage Industry Investigation? A Mortgage Lobbyist

ProPublica-

In early 2007, when he was New York State attorney general, Andrew Cuomo brought on a longtime confidant as a consultant on mortgage industry investigations, a move that has gone undisclosed until now.

The friend was Howard Glaser and he had another job at the same time: consultant and lobbyist for the very industry Cuomo was investigating.

Glaser, who went on to become a top state official in Cuomo’s gubernatorial administration, was operating a lucrative consulting firm, the Glaser Group, with a host of mortgage industry clients.

[PROPUBLICA]

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Goldman Sachs mortgage deal with federal agency FHFA could reach $1.25 billion

Goldman Sachs mortgage deal with federal agency FHFA could reach $1.25 billion

Reuters-

A deal to resolve a U.S. regulator’s claims against Goldman Sachs Group Inc over mortgage-backed securities sold to Fannie Mae and Freddie Mac leading up to the financial crisis could cost the bank between $800 million and $1.25 billion, according to a person familiar with the matter.

The person said Goldman Sachs is discussing a settlement with the Federal Housing Finance Agency (FHFA), which filed 18 lawsuits against Goldman and other banks in 2011 over about $200 billion in mortgage-backed securities that later went sour.

Goldman Sachs and the FHFA declined to comment on Saturday.

[REUTERS]

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NYAG Schneiderman’s SCOTUS brief in Jesinoski v. Countrywide | “Amici states have a compelling interest in ensuring effective enforcement of TILA.  “. …  “Protecting home ownership is vital state policy. “.

NYAG Schneiderman’s SCOTUS brief in Jesinoski v. Countrywide | “Amici states have a compelling interest in ensuring effective enforcement of TILA. “. … “Protecting home ownership is vital state policy. “.

IN THE
Supreme Court of the United States
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH CIRCUIT

LARRY D. JESINOSKI, et ux.,
Petitioners,

V.

COUNTRYWIDE HOME LOANS, INC., et al.,
Respondents.

BRIEF FOR THE STATES OF NEW YORK, ARIZONA, ARKANSAS
CONNECTICUT, DELAWARE, HAWAII, ILLINOIS, INDIANA, IOWA,
KENTUCKY, MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,
MINNESOTA, MISSISSIPPI, NEVADA, NEW HAMPSHIRE, NEW MEXICO,
NORTH CAROLINA, OREGON, RHODE ISLAND, TENNESSEE, VERMONT,
WASHINGTON, WEST VIRGINIA, AND THE DISTRICT OF COLUMBIA,
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

ERIC T. SCHNEIDERMAN
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
STEVEN C. WU
Deputy Solicitor General
CECELIA C. CHANG
Special Counsel
120 Broadway
New York, NY 10271
(212) 416-8020
barbara.underwood@ag.ny.gov
Counsel for Amici Curiae

QUESTION PRESENTED
The Truth in Lending Act provides that
consumers who enter into credit transactions secured
by their principal dwelling shall have the right to
rescind the transaction until three business days
after the delivery of legally mandated “information
and rescission forms” by the creditor. 15 U.S.C.
§ 1635(a). A consumer exercises the statutory right of
rescission “by notifying the creditor, in accordance
with [governing] regulations,” of his or her intent to
rescind. Id. The Act further provides that a
consumer’s “right of rescission shall expire three
years after consummation of the transaction.”
whether or not a creditor has made required
disclosures by that time. Id. § 1635(f).
The question presented is:

Do consumers timely exercise rescission rights
under the Act by notifying creditors of their intent to
rescind within three years of consummation of a
transaction, or must consumers both give notice and
also file a lawsuit seeking rescission within three
years of consummation of a transaction to prevent
statutory rescission rights from expiring?

[...]

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PNC’s Dorothy Thomas Affidavit – For an investor to acquire the right to foreclose, IT MUST obtain and record an assignment

PNC’s Dorothy Thomas Affidavit – For an investor to acquire the right to foreclose, IT MUST obtain and record an assignment

THE PROCESS REQUIRES THAT AN ASSIGNMENT TO THE *SERVICER* AS ***OWNER*** BE RECORDED IN THE PROPERTY RECORDS.

IN THE COURT OF COMMON PLEAS
MONTGOMERY COUNTY, OHIO

PNC Bank, National Association, et al.
Plaintiff,

v.

Peter K. Newman, et al.
Defendants.

I, Dorothy Thomas, being first duly sworn, state that the following facts are true based upon
my personal knowledge and information I have learned through a review of PNC Bank, National
Association’s business records:

1. I am of the age of majority and am competent to testify with respect to the
following matters.

2. I am Mortgage Officer of PNC Mortgage, a division of PNC Bank, National
Association (“PNC”), successor by merger to National City Bank, successor by merger to
National City Mortgage Co (“NCMC). I am authorized to make this Affidavit on behalf of PNC.
I have responsibility for, and knowledge of, the files and documents related to the above captioned
matter and of the procedures involved in foreclosures of loans originated by PNC or its
predecessors that are sold to Federal Home Loan Mortgage Corporation (“Freddie Mac”) as an
investor.

3. I am familiar with and have access to the records of PNC with respect to the loan
referenced herein. These records are kept in the course of PNC’s regularly conducted loan
administration activities and it is the regular practice of PNC to keep these records. I have
personally reviewed the documents, records, and other data relied on to make the statements in
this Affidavit.

4. In general, when a loan originated by one of PNC’s predecessors, such as NCMC,
was sold to an investor, unless the particular investor required assignment and physical transfer
of the mortgage note, the note remained in the possession of the originator and the originator was
responsible for its servicing. Servicing involves collecting and crediting payments from the
borrower, administering the loan, handling escrow, maintaining loan paperwork, etc. A servicer
keeps a percentage of the mortgage payments it collects from the borrowers as its servicing fee
and sends the rest of the funds to the investor. The servicer’s obligations concerning what to do
if the note went into default would be described in the particular investor’s servicing guide or in
the servicer’s contract with the investor. Unless the loan is sold with servicing rights (i.e.
servicing rights are also released to the investor upon sale of the loan), the investor gains only the
right to receive income from the mortgage.

5. With respect to loans purchased by Freddie Mac, when it purchases a loan from
the originator, it does not normally take physical possession of the mortgage note and does not
normally record an assignment of the mortgage note. With respect to loans sold by NCMC to
Freddie Mac, NCMC would historically keep physical possession of the notes evidencing
borrower obligations on those loans and would act as servicers for Freddie Mac.

6. Freddie Mac’s servicing guide, relevant portion of which is attached here as
Exhibit A (Chapter 66: Foreclosure), expressly requires servicers of its loans to initiate and
complete foreclosures on the loans in which Freddie Mac invests. (See Section 66.1 stating “The
Servicer must initiate foreclosure. . . Freddie Mac requires the Servicer to manage the
foreclosure process to acquire clear and marketable title to the property in a cost-effective,
expeditious and efficient manner”; Section 66.2 at diagram titled “Process for all Mortgages that
are delinquent or in default” indicating that Servicer must initiate and complete foreclosures).

7. On the loans it purchases, Freddie Mac never itself initiates foreclosures and does
not otherwise seek to enforce mortgage notes securing borrowers’ obligations on the loans,
unless a written assignment of the particular note and mortgage is executed by the loan originator
assigning the note and mortgage to Freddie Mac. Once an assignment is made, only the party to
whom the note and mortgage are assigned can enforce them.

8. Once the obligations under a mortgage note are enforced by foreclosing on the
mortgage securing the debt evidence by the note, the note is cancelled and can no longer be
enforced by any other entity.

9. With respect to Susan and Peter Newman’s (the “Newmans”) loan, it was
originated by NCMC when the Newmans gave NCMC a Note dated May 16, 2003 for $300,000
that was secured by the Mortgage, also date May 16,2003, on the property located at 594 Garden
Road, Dayton, OH 45419 (the “Property”).

10. On August 3, 2003, sold the Newman’s loan to Freddie Mac, but the Note and
Mortgage remained in NCMC’s possession and were never assigned to Freddie Mac. NCMC
remained the holder and servicer of the Note and Mortgage.

11. With respect to the Newmans’ loan, Freddie Mac bought fromNCMC (a) the
right to receive income from the payments on the Note actually collected by NCMC and (b) in
case of Newmans’ default, the right to receive the proceeds from the foreclosure sale. (See
Exhibit A at Section 66.61). Because no assignment of the Note and Mortgage took place,
Freddie Mac did not buy from NCMC any rights to pursue the Newmans in any way for their
failure to make payments under the Note.

12. On November 9, 2009, through its merger with National City Bank, PNC
acquired all assets and obligations of NCMC, including all of its rights and obligations to service
and enforce the Note. Freddie Mac remained having only the right to receive income from the
payments made by the Newmans under the Note and proceeds of the foreclosure sale in case of
the Newmans’ default.

13. When PNC initiated these proceedings to enforce the Newmans’ obligations
under the Note by foreclosing on the Mortgage, it was both the servicer and holder of the Note.
PNC is the only party that can enforce the terms of the Note and Mortgage because of (1) its
contractual obligation to Freddie Mac to carry out the foreclosure on the Newmans’ Mortgage
and (2) its status as holder of the Note. Once the foreclosure is completed and a judgment is
entered in this case, the Note evidencing the Newmans’ loan obligation will be cancelled and no
other party will be able to enforce it.

[...]

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