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Tag Archive | "assignmnet of mortgage"

GMAC LLC vs. LAW OFFICES OF DAVID J. STERN Battle it out in Federal Court

GMAC LLC vs. LAW OFFICES OF DAVID J. STERN Battle it out in Federal Court


Mortgage Fraud

GMAC Mortgage, LLC
Law Offices of David J. Stern

Action Date: August 12, 2011
Location: FT. Lauderdale, FL

GMAC Mortgage, LLC filed counterclaims in a federal court lawsuit brought against GMAC by its former lawyers, The Law Offices of David J. Stern, P.A. (“Stern”). The case, No. 11-CV-61526, was filed in federal court in the Southern District of Florida, where Stern’s offices were located.

GMAC accuses Stern of gross legal malpractice, breach of contract, breach of fiduciary duty, violating Florida’s Deceptive and Unfair Trade Practice Act and Misrepresentation/Suppression. GMAC seeks unspecified compensatory and punitive damages.

GMAC alleges that Stern:

1. caused or permitted Stern employees to execute, witness and/or notarize assignments of mortgage that were back-dated;

2. caused or permitted Stern’s employees to witness and/or notarize assignments of mortgages, affidavits of indebtedness and/or other affidavits on a daily basis prior to and without actually witnessing execution of the document by the person whose signature was to be witnessed and/or notarized;

3. caused or permitted Stern’s employees to prepare and execute affidavits of indebtedness for submission to the foreclosure court that failed to follow appropriate professional practices and procedures;

4. caused or permitted Stern’s employees to sign the name of another person on various foreclosure-related documents without any indication of that fact on the documents;

5. charged GMAC substantial fees and costs for legal services that Stern knew or should have known fell below the minimum standard of professional care owed by Stern to GMAC; and

6. committed acts or omissions that have subjected GMAC to claims, losses and liabilities of third-parties.

Essentially, GMAC claims that Stern’s malpractice carrier should be held responsible for all of the allegedly fraudulent acts of Stern’s office manager, Cheryl Samons, and other Stern employees who signed mortgage assignments and affidavits to push through foreclosures at record-breaking speed.

On July 27, 2011, Stern filed its Answer to these GMAC claims including the following:

“ 9. GMACM’s claims are barred, in whole or in part, by the doctrine of unclean hands because of GMACM’s: breach of contract; failure to retain replacement counsel in a timely manner; signing inaccurate affidavits; affidavits that were not properly notarized; not confirming whether loan and mortgage documents were properly endorsed; assigned or in possession of the appropriate party; and other misconduct identified in the Consent Order entered on April 13, 2011 by Order of the Board of Governors of the Federal Reserve System and the FDIC, and because, to the extent DJSPA committed legal malpractice, which is expressly denied, any such malpractice was the result of GMACM’s own actions and/or instructions.”

Homeowners and investors are lost in this battle of the giants. Tens of thousands of Florida homeowners lost their foreclosure cases because of the fraudulent documents produced by GMAC.

These documents most certainly came from Stern, but they also came from GMAC’s own employees, including master-signer Jeffrey Stephan, and employees in many other major foreclosure mills used by GMAC. The Stern defense that “Everybody was doing it” is unfortunately true.

An important question for homeowners and investors is whether GMAC has instructed its new lawyers to advise the Courts and homeowners of these findings.

Malpractice insurance carriers throughout the country could not imagine a more ominous case. Copies of the Counterclaim and Answer are available in the Pleadings section of Fraud Digest.


© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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Re: EXPOSING THE LAW FIRMS AND BANKS IN THE DOCX SCHEME (and then the many others)

Re: EXPOSING THE LAW FIRMS AND BANKS IN THE DOCX SCHEME (and then the many others)


Dear Friends,

After the 60 Minutes Segment on Foreclosure Fraud on April 3, 2011, I was contacted by over 2,000 individuals, seeking help or wanting to help.

FOR ALL THOSE WHO WANT TO HELP RESEARCH THE DOCX FORGERY SCHEME:

1. Search the official records of your county and find all the Mortgage Assignments filed by Docx in 2009. Search by bank: Deutsche Bank, Bank of NY Mellon, U.S. Bank, HSBC, Wells Fargo, etc.

These are very recognizable. On each form, in the left hand corner, there is a statement that the Assignment was prepared by Docx in Alpharetta, GA.

For examples, click on the word PLEADINGS on the Home Page of www.frauddigest.com (my online magazine) – then click on the second entry – 10 Versions of Linda Green signatures on mortgage documents.

Print each example you find in your county Official Records. Identify and circle the name of the borrorwer/homeowner on each record.

2. Go Back to the Official Records. Search the name of each homeowner on the Docx Assignments for Lis Pendens.

Print the Lis Pendens that corresponds to the Assignment and staple these together.

Note that there will not be a Lis Pendens for every Assignment – many homeowners will have already handed over the keys or agreed to a short sale to avoid litigation.

3. Sort by Law Firm Preparing the Lis Pendens.

In Florida, for example, the firms using these Assignments will include Law Offices of David Stern, Law Offices of Marshall Watson, Shapiro & Fishman, Florida Default Law Group, Law Offices of Daniel Consuegra, Akerman & Senterfitt, Gladstone Law Group and many others.

These are the firms that continued to use the forged documents, never “noticing” that:

(1) the signatures varied so significantly that forgeries were likely;

(2) the same individuals used so many different job titles that the validity was unlikely;

(3) the dates of the Assignments indicated a fraudulent document because the Assignments came after the Lis Pendens.

4. Compile a report of these findings – LAW FIRMS USING FORGED AND FABRICATED DOCUMENTS TO FORECLOSE.

State plainly which law firms used these documents and attach the documents supporting your conclusions.

5. Send your reports to the following:

(1) your local State Attorney;

(2) the Disciplinary Committee of the Bar Association in your state;

(3) the FBI/attention: Mortgage Fraud Taskforce;

(4) the U.S. Attorney for your district;

(5) the Attorney General for your state;

(6) your country recorder;

(7) your area newspaper/television investigative reporter.

6. You may also sort by the BANK that used these fraudulent documents to take homes, and include that information in your reports.

Please send a .pdf file of your letter (without attachments) to szymoniak@mac.com.

If you are very ambitious, you may also add the face value of all of the Docx Assignments you locate so that you can report the total amount that banks took or tried to take using these forged and fabricated documents in 2009.

WHEN WE ALL COMPLETE THIS PROJECT, WE WILL MOVE ON TO FORGED AND FABRICATED ASSIGNMENTS  PREPARED BY LAW FIRMS (such as David Stern in Florida and Baum in NY) AND OTHER SERVICERS.

Thank you for joining this effort.

Best regards,

LYNN E. SZYMONIAK


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Freddie Mac Tells Servicers NOT To Foreclose In MERS

Freddie Mac Tells Servicers NOT To Foreclose In MERS


Effective April 1, servicers managing Freddie Mac loans will no longer be allowed to foreclose on properties in the name of Mortgage Electronic Registration Systems (MERS).

Freddi Mac’s announcement  states

We have updated the Guide to eliminate the option for the foreclosure counsel or trustee to conduct a
foreclosure in the name of MERS. Effective for Mortgages registered with MERS that are referred to
foreclosure on or after April 1, 2011, Servicers must prepare an assignment of the Security Instrument
from MERS to the Servicer and instruct the foreclosure counsel or trustee to foreclose in the Servicer’s
name and take title in Freddie Mac’s name.

As required in Section 66.17, Foreclosing in the Servicer’s Name, Servicers must record the prepared
assignment where required by State law. State mandated recording fees are not reimbursable by Freddie
Mac, are not considered part of the Freddie Mac allowable attorney fees and must not be billed to the
Borrower.

Servicers should refer to updated Section 66.17 and Section 66.54, Vesting the Title and Avoiding
Transfer Taxes, for additional information.


[ipaper docId=51478894 access_key=key-uycf5vbb5ste8n2go4r height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



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MUST READ | VERMONT BK COURT DENIES SUMMARY JUDGMENT MOTION OF U.S. BANK NATIONAL ASSOCIATION In Re: PARKER

MUST READ | VERMONT BK COURT DENIES SUMMARY JUDGMENT MOTION OF U.S. BANK NATIONAL ASSOCIATION In Re: PARKER


In re: Barry Alton Parker, Chapter 13, Debtor.

Barry Alton Parker, Plaintiff,

v.

U.S. Bank National Association, as Trustee on behalf of the Holder of the Adjustable Rate Mortgage Trust 2007-1, et al. Defendants.

Case No. 09-10186, Adversary Proceeding No. 09-1022.

United States Bankruptcy Court, D. Vermont.

March 18, 2011.

Rebecca A. Rice, Esq., Cohen & Rice Rutland, VT For Barry Alton Parker.
Douglas J. Wolinsky, Esq., Kevin Michael Henry, Esq., Primmer Piper Eggleston & Cramer PC, Burlington, VT For U.S. Bank National Association

MEMORANDUM OF DECISION
DENYING SUMMARY JUDGMENT MOTION OF U.S. BANK NATIONAL ASSOCIATION

COLLEEN A. BROWN, Bankruptcy Judge

Barry Alton Parker (the “Debtor”) filed a complaint (doc. # 1) to initiate this adversary proceeding on May 18, 2009. On August 27, 2009, U.S. Bank National Association (the “Bank”) filed its answer (doc. # 3). The Bank filed the instant motion for summary judgment on December 15, 2010 (doc. ## 49, 50, 51), seeking dismissal of the Debtor’s claim that the Bank lacks standing to enforce the mortgage note against the Debtor. For the reasons set forth below, the Court denies the Bank’s motion.

JURISDICTION
This Court has jurisdiction over this adversary proceeding and the Bank’s motion for summary judgment under 28 U.S.C. §§ 1334 and 157(b)(2)(B).

UNDISPUTED MATERIAL FACTS
Based upon the record in this proceeding, the Court finds the following facts to be material and undisputed:

1. On November 10, 2006, the Debtor executed and delivered to Credit Suisse Financial Corporation (“Credit Suisse”) two promissory notes; the note at issue was made in the original amount of $231,200 (the “Note”) (doc. # 40, ¶ 1; doc. # 45, Undisputed Material Facts ¶ 1).
2. Also on November 10, 2006, the Debtor executed a mortgage deed in favor of Mortgage Electronic Registration System, Inc. (“MERS”) as nominee for Credit Suisse, as security for the Note (doc. # 40, ¶ 2; doc. # 45, Undisputed Material Facts ¶ 2).
3. The Note was subsequently endorsed in blank by Patrick Brown, Post Closing-Manager for Lydian Data Services, as Attorney-in-Fact for Credit Suisse (doc. # 40, ¶ 7; doc. # 45, Undisputed Material Facts ¶ 3).
4. After the Note was endorsed, it was transferred to the Bank, and the Bank is in possession of the original Note (doc. # 40, ¶ 8; doc. # 45, Undisputed Material Facts ¶ 6-7).
5. The original Note was received by counsel for the Bank from the Bank with the allonge attached by a staple, and the Note was provided to counsel for the Debtor for review in the same condition (doc. # 51, ¶ 7; doc. # 56).
6. On December 11, 2008, MERS assigned the mortgage to the Bank (doc. # 40, ¶ 9; doc. # 45, Undisputed Material Facts ¶ 8; doc. # 51, ¶ 6; doc. # 56).
7. The assignment of mortgage was executed by Bill Koch, acting in the capacity of an officer of MERS, pursuant to a Corporate Resolution dated July 11, 2002 (doc. # 51, ¶ 6; doc. # 56).
8. On December 19, 2008, the Bank filed a foreclosure complaint against the Debtor in Vermont state court (doc. # 40, ¶ 10).
9. On February 25, 2009, the Debtor filed his bankruptcy petition (doc. # 40, ¶ 11).
10. At the time the Debtor filed his petition, no judgment had been entered in the state court action (doc. # 40, ¶ 12).
11. The Bank is trustee to the Adjustable Rate Mortgage Trust 2007-1, Adjustable Rate Mortgage-Backed Pass-Through Certificates, Series 2007-1 (the “Trust”) (doc. # 45, Undisputed Material Facts ¶ 4).
12. The Trust is governed by a Pooling and Servicing Agreement dated February 1, 2007 (doc. # 40, ¶
13; doc. # 45, Undisputed Material Facts ¶ 5).
13. On April 13, 2009, the Bank filed a proof of claim in the Debtor’s bankruptcy case, based upon the Note (doc. # 40, ¶ 14).
14. The Note attached to the proof of claim was endorsed by an allonge in blank, even though there was room on the original Note to endorse it, and no original of the Note has been produced (doc. # 40, ¶ 15).
15. Although the allonge was signed by Patrick Brown, post-closing manager for Lydian Data Services, as Attorney-in-Fact for Credit Suisse, no power of attorney is attached to the proof of claim (doc. # 40, ¶ 16).
16. The Bank did not file an assignment of mortgage with its proof of claim (doc. # 40, ¶ 17).
17. On May 28, 2009, the Debtor filed his complaint in this adversary proceeding (doc. # 40, ¶ 18).
18. On December 14, 2010, Credit Suisse ratified the endorsement of Patrick Brown, Post Closing-Manager for Lydian Data Services, as Attorney-in-Fact for Credit Suisse; the Debtor contests the effectiveness of the ratification (doc. # 51, ¶ 8; doc. # 56).

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the record shows no genuine issue as to any material fact such that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Fed. R. Bankr. P. 7056; see also Bronx Household of Faith v. Bd. of Educ. of the City of New York, 492 F.3d 89, 96 (2d Cir. 2007). The moving party bears the burden of showing that no genuine issue of material fact exists. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). A genuine issue exists only when “the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The substantive law identifies those facts that are material; only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 248. Factual disputes that are irrelevant or unnecessary are not material. Id. In making its determination, the court’s sole function is to determine whether there is any material dispute of fact that requires a trial. Id. at 249; see also Palmieri v. Lynch, 392 F.3d 73, 82 (2d Cir. 2004). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the moving party. See Beth Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of New Jersey, Inc., 448 F.3d 573, 579 (2d Cir 2006). If the nonmoving party does not come forward with specific facts to establish an essential element of that party’s claim on which it has the burden of proof at trial, the moving party is entitled to summary judgment. See Celotex Corp., 477 U.S. at 323-25 (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses . . . the burden on the moving party may be discharged by `showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case”); see also Tufariello v. Long Island R. Co., 458 F.3d 80, 85 (2d Cir. 2006).

DISCUSSION

In his complaint, the Debtor objects to the Bank’s proof of claim “on the basis of standing” (doc. # 1, ¶ 27). The Bank’s position is that this argument fails as a matter of law because the Bank is the holder of the Note and the assignee of the mortgage (doc. # 50, p. 4).
Bankruptcy law does not specify the requirements for the enforcement of promissory notes. As a result, the legal obligations of parties disputing the validity of a promissory note are determined by applicable non-bankruptcy law, which is usually state law. See Butner v. United States 440 U.S. 48, 54-55 (1979).
Vermont has adopted a version of the Uniform Commercial Code (“UCC”) concerning negotiable instruments that applies to promissory notes. The relevant provision of Article 3, 9A V.S.A. § 3-101, et seq., describes a “[p]erson entitled to enforce” an instrument, in relevant part, as “(i) the holder of the instrument.” 9A V.S.A. § 3-301. The general definitions section of Vermont’s UCC defines a “holder,” in relevant part, as “(A) the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” 9A V.S.A. § 1-201(21)(A). The section pertaining to unauthorized signatures provides, in relevant part, that:
(a) Unless otherwise provided in this article or article 4, an unauthorized signature is ineffective except as the signature of the unauthorized signer in favor of a person who in good faith pays the instrument or takes it for value. An unauthorized signature may be ratified for all purposes of this article.
9A V.SA. § 3-403(a).
It is undisputed that the Bank is in possession of the original Note (see Undisputed Material Facts ¶ 4, supra). At issue is whether the endorsement is valid, whether the Note is payable to the Bank as bearer, and thus whether the Bank is a holder under the Vermont UCC entitled to enforce the Note. The Debtor originally executed the Note in favor of Credit Suisse (see Undisputed Material Facts ¶ 1, supra); the Note was subsequently endorsed by an allonge in blank by Patrick Brown, Post Closing-Manager for Lydian Data Services as Attorney-in-Fact for Credit Suisse (see Undisputed Material Facts ¶¶ 3, 14, supra). The Bank did not attach to its proof of claim a copy of the power of attorney authorizing Mr. Brown to endorse the Note (see Undisputed Material Facts ¶ 15, supra), and that power of attorney is not part of the record in this adversary proceeding. On December 14, 2010, nearly twenty-two months after the Debtor filed his bankruptcy petition, Credit Suisse ratified the endorsement of Patrick Brown (see Undisputed Material Facts ¶¶ 9, 18, supra
The Debtor argues that there is a genuine issue of material fact as to whether Mr. Brown was authorized to sign on behalf of Credit Suisse at the time the allonge was endorsed; the Debtor also contests the effectiveness of the ratification to cure the defective endorsement. There is no evidence in the record that Mr. Brown was authorized to sign on behalf of Credit Suisse at the time the allonge was endorsed. However, on December 14, 2010, Credit Suisse expressly ratified Mr. Brown’s endorsement. See Undisputed Material Facts ¶ 18, supra; see also doc. # 51-3 (“Credit Suisse . . . ratifies and approves the indorsement of the Note by Patrick Brown, post Closing Manager for Lydian Data Services as the attorney-in-fact for Credit Suisse”). The leading commercial law treatises shed light on the issue of the effectiveness of ratification. An unauthorized signature may be ratified expressly, thus binding the ratifying principal. See 2 White & Summers, Uniform Commercial Code § 16-4 (5th ed. 2010). A signature by an agent in excess of his or her authority may be ratified. See 4 Hawkland UCC Series § 34-04:2 (2010). Once a signature is ratified, it becomes effective as if authorized at the time made. See id; see also 9A V.S.A. § 3-403, Official Comment 3 (“[r]atification is a retroactive adoption of the unauthorized signature . . .”) (emphasis added). Thus, the Court finds that upon ratification by Credit Suisse, the endorsement by Mr. Brown became effective as if it had been authorized at the time made.
This raises the question of when the allonge was endorsed, as the allonge endorsed by Mr. Brown is not dated. The Bank argues that the timing of the endorsement is immaterial to the question of whether the Bank is the holder of the Note because regardless of when the Note was endorsed, it is now endorsed and in the Bank’s possession. See In re Wilson, 442 B.R. 10, 15, 2010 Bankr. LEXIS 4252, * 9-11 (Bankr. D. Mass. Nov. 29, 2010). However, under relevant Vermont jurisprudence pertaining to foreclosure actions, “[i]n order to enforce a mortgage note, a plaintiff must show that it was the holder of the note at the time the Complaint was filed.U.S. Bank Nat’l Assoc. as Trustee for RASC 2005 AHL1 v. Kimball, No. 6-1-09 Gicv (Vt. Super. Ct. Oct. 27, 2009) (Joseph, J.) (on appeal) (citing In re Gilpin, No. 09-10696 (Bankr. D. Vt. Oct. 7, 2009)) (emphasis added); see also In re Foreclosure Cases, 521 F.Supp.2d 650, 653 (S.D. Ohio 2007) (“[t]o show standing . . . the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed”); In re Hwang, 396 B.R. 757 (Bankr. C.D. Cal. 2008), reversed on other grounds, 438 B.R. 661 (C.D. Cal. 2010); U.S. Bank Nat’l Assoc. v. White, 880 N.Y.S.2d 227 (Table), 2009 N.Y. Slip Op. 50100(U) (N.Y. Super. Ct. Jan. 23, 2009). Another recent Vermont case addressed the “propositions that a party must have standing at the outset of litigation, and that a defect in standing at that time cannot be cured,” Deutsche Bank Nat’l Trust Co. v. Parisella, No. S0758-09, 2010 Vt. Super. LEXIS 59, *5 (Vt. Super. Ct. Oct. 25, 2010) (Toor, J.). There, the state court took great pains to thoroughly articulate the requirements of both constitutional and prudential standing, and concluded that “a plaintiff seeking foreclosure lacks standing unless it can show it was entitled to enforce the mortgage at the time it filed its complaint for foreclosure.” Id. at *6-10. Notably, the Vermont Rule of Civil Procedure governing foreclosure proceedings likewise imposes this requirement:
The plaintiff shall attach to the complaint copies of the original note and mortgage deed and proof of ownership thereof, including copies of all original endorsements and assignments of the note and mortgage deed. The plaintiff shall plead in its complaint that the originals are in the possession and control of the plaintiff or that the plaintiff is otherwise entitled to enforce the mortgage note pursuant to the Uniform Commercial Code.
Vt. R. Civ. P. 80.1(b)(1).
Here, the document the creditor has filed to enforce its rights is a proof of claim, rather than a complaint or motion, and the seminal date for analysis and allowance of a proof of claim, including the question of standing, is the date the bankruptcy case was commenced. See Official Form 10. Therefore, the critical inquiry is whether the Bank was the holder of the Note as of the date of Debtor’s bankruptcy filing. Since the date the Note was endorsed is a material fact essential to the determination of whether the Bank is entitled to judgment as a matter of law, and since the record of undisputed material facts does not include any information about the date of the endorsement, the Court cannot adjudicate this issue on summary judgment.1

CONCLUSION

For the reasons set forth above, the Bank’s motion for summary judgment is denied. Unless the parties present undisputed evidence showing the date the allonge was executed, the Court will set a trial date to determine whether the Bank had standing to file the proof of claim.

This memorandum of decision constitutes the Court’s findings of facts and conclusions of law.

March 18, 2011…………………………… Colleen A. Brown
Burlington, Vermont……………………. United States Bankruptcy Judge

1 As the Court has denied the Bank’s second motion for summary judgment on the basis that there is a genuine issue of material fact regarding the date of the endorsement, there is no need for the Court to consider the Debtor’s additional arguments in opposition to the motion.
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MERS Tells Servicers to Stop Foreclosing in Their Name

MERS Tells Servicers to Stop Foreclosing in Their Name


excerpt:

MERS is providing the following guidance to all Members to strengthen business practices, and minimize reputation, legal and compliance risk to MERS and its Members. In recent months legal challenges have arisen regarding alleged inadequacies and improprieties in the foreclosure process including allegations of insufficient or incorrect supporting documentation and challenges to the legal capacity of parties’ right to foreclose. MERS is committed to reevaluate and strengthen its systems and procedures to protect against these types of legal challenges. Consistent with this approach we have enhanced the Corporate Resolution Management System (CRMS) and instituted related policies and procedures designed to strengthen MERS’ business practices and limit compliance risks. To comply with this guidance, MERS Members should implement the following practices, effective immediately.

continue below…

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Former Va. AG on Bank of America foreclosure legal team

Former Va. AG on Bank of America foreclosure legal team


By Dan Levine

SAN FRANCISCO | Wed Oct 27, 2010 6:58pm EDT

SAN FRANCISCO (Reuters) -Bank of America (BAC.N) is bringing in the former Attorney General of Virginia as well as law firms with deep Washington experience to help defend against a probe by U.S. states into its foreclosure practices.

Richard Cullen, chairman of the McGuireWoods law firm and Virginia attorney general from 1997-1998, is one of the lawyers representing the nation’s largest mortgage servicer. Cullen has already been communicating with the offices of various state attorneys general, according to a source familiar with the investigation.

All 50 state AGs recently announced a joint probe of the banking industry amid reports of faulty foreclosure affidavits submitted to U.S. courts. Besides Bank of America, other servicers such as JPMorgan Chase & Co (JPM.N) and Ally Financial have also been under the microscope over the use of “robo-signers” — people who sign hundreds of affidavits a day.

“It makes a lot of sense for a company to hire people who have concentrated experience in dealing with state AGs,” said Nicholas Gess, a former Department of Justice attorney who worked with state attorneys general.

Cullen served on President George W. Bush’s legal team during the Florida vote recount after the 2000 presidential election. He also represented Republican Tom DeLay in a recent federal probe that did not result in any charges being filed against the former U.S. House of Representatives majority leader.

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Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988

Kluge v. Fugazy, 145 AD 2d 537 – NY: Appellate Div., 2nd Dept. 1988


This is a case you may not recognize but NY is very lucky to have.

Thank you for paving the way.

.

145 A.D.2d 537 (1988)

John W. Kluge, Respondent,
v.
William D. Fugazy et al., Appellants, et al., Defendants

Appellate Division of the Supreme Court of the State of New York, Second Department.
December 19, 1988

Mangano, J. P., Thompson, Brown and Kunzeman, JJ., concur.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

As the result of a series of financial transactions, the 538*538 plaintiff received an assignment of a mortgage as collateral security for a promise of indemnification. The underlying note was not assigned and was expressly excluded from transfer.

The plaintiff’s first and second causes of action for foreclosure and a deficiency judgment, respectively, must fail since foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity (Merritt v Bartholick, 36 N.Y. 44, 45; Flyer v Sullivan, 284 App Div 697, 698; Beak v Walts, 266 App Div 900; Manne v Carlson, 49 App Div 276, 278). Moreover, we find that the written agreement and assignment between the parties were clear and unambiguous. They indicate that no delivery of the underlying obligation was intended, and they were entered into by sophisticated, counseled businessmen (see, Chimart Assocs. v Paul, 66 N.Y.2d 570, 573; Nau v Vulcan Rail & Constr. Co., 286 N.Y. 188, 198-199, rearg denied 287 N.Y. 630). As a result, the plaintiff’s third cause of action, for specific performance, must fail.

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