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Florida Supreme Court hears landmark Foreclosure Fraud suit

Florida Supreme Court hears landmark Foreclosure Fraud suit


Does the rule of law matter?

Why hasn’t David J. Stern not been disbarred? Suspended?

Is Fraud upon the court 100,000’s of time & to the face of a judge not a crime?

Why would the original judge not sanction anyone?

Will the Supreme Court allow fraud to slap it in its face 2nd time around?

Where has justice gone?

Reuters-

The Florida Supreme Court heard arguments on Thursday in a landmark lawsuit that could undo hundreds of thousands of foreclosures and open up banks to severe financial penalties in the state where they face the bulk of their foreclosure-fraud litigation.

Legal experts say the lawsuit is one of the most important foreclosure fraud cases in the country and could help resolve an issue that has vexed Florida’s foreclosure courts for the past five years: Can banks that file fraudulent documents in foreclosure proceedings voluntarily dismiss the cases only to refile them later with different paperwork?

The decision, which may take up to eight months, could influence judges in the other 26 states that require judicial approval for foreclosures.

The case at issue, known as Roman Pino v. Bank of New York Mellon, stems from the so-called robo-signing scandal that emerged in 2010 when it was revealed that banks and their law firms had hired low-wage workers to sign legal documents without checking their accuracy, as is required by law.

If the state Supreme Court rules against the banks, “a broad universe of mortgages could be rendered unenforceable,” said former U.S. Attorney Kendall Coffey, author of the book, “Foreclosures in Florida.”

[REUTERS]

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Florida foreclosure case could SLAM banks

Florida foreclosure case could SLAM banks


Reuters-

The Florida Supreme Court is set to hear oral arguments Thursday in a lawsuit that could undo hundreds of thousands of foreclosures and open up banks to severe financial liabilities in the state where they face the bulk of their foreclosure-fraud litigation.

The court is deciding whether banks who used fraudulent documents to file foreclosure lawsuits can dismiss the cases and refile them later with different paperwork.

The decision, which may take up to eight months to render, could affect hundreds of thousands of homeowners in Florida, and could also influence judges in the other 26 states that require lawsuits in foreclosures.

Of all the foreclosure filings in those states, sixty three percent, a total of 138,288, are concentrated in five states, according to RealtyTrac, an online foreclosure marketplace. Of those, nearly half are in Florida. In Congressional testimony last year, Bank of America, the U.S.’s largest mortgage servicer, said that 70 percent of its foreclosure-related lawsuits were in Florida.

The case at issue, known as Roman Pino v. Bank of New York Mellon, stems from the so-called robo-signing scandal that emerged in 2010 when it was revealed that banks and their law firms had hired low-wage workers to sign legal documents without checking their accuracy as is required by law.

This was a case of an intentionally fraudulent document fabricated to use in a court proceeding,” says former U.S. Attorney Kendall Coffey, author of the book Foreclosures in Florida.

[REUTERS]

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PINO v. BONY Oral Argument set for Thursday May 10, 2012 at 9:00 am

PINO v. BONY Oral Argument set for Thursday May 10, 2012 at 9:00 am


The Oral Arguments in Roman Pino v. Bank of New York will be heard before the Florida Supreme Court on Thursday, May 10, 2012  at 9:00 AM.  In this case the court will be addressing the circumstances under which a voluntary dismissal (a final judgment or other court action) can be set aside long after the case is over, based on underlying fraud on the court.

The Oral Arguments can be watched live on http://thefloridachannel.org/watch/web3/1336655014.

As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55.

Supreme Court of Florida

No. SC11-697

ROMAN PINO,
Petitioner,

vs.

THE BANK OF NEW YORK, etc., et al.,
Respondents.

[December 8, 2011]

PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.1 This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

[…]

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Florida Supreme Court to review dismissed foreclosure lawsuit against Greenacres man

Florida Supreme Court to review dismissed foreclosure lawsuit against Greenacres man


This shouldn’t be so difficult, David J. Stern has TONS of fraudulent documents out there. Pick any County, any documents his firm filed and you’re sure to find fraud. Just read the depositions from his former employees.

“We conclude that this is a question of great public importance, as many, many mortgage foreclosures appear tainted with suspect documents,” the appeals court wrote in certification to the Supreme Court.

PALM BEACH POST-

An unassuming drywall hanger from Greenacres has banks warning of a “widespread financial crisis” if the Florida Supreme Court favors him in a landmark foreclosure case justices will hear this week.

Plucked out of the 4th District Court of Appeal, Roman Pino v. the Bank of New York is the first significant foreclosure complaint to be heard by the high court since the state’s legendary housing collapse.

It’s particularly unusual because the 41-year-old Pino had already settled the case when the Supreme Court decided in December to take up a legal question it said could affect the mortgage foreclosure crisis statewide.

At issue is whether a bank can escape punishment for filing flawed or fraudulent documents in a case by voluntarily dismissing it. (A voluntary dismissal allows the bank to refile at a later date.)

That’s what Royal Palm Beach-based foreclosure defense attorney Tom Ice said happened when he challenged a document created by the Law Offices of David J. Stern and sought to question employees about its veracity. On the eve of those depositions, the bank moved to dismiss the case, blocking the court’s ability to address any sanctions.

“The objective here was to hide from punishment for the wrongdoing,” Ice said.

[PALM BEACH POST]

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PINO vs BONY | BRIEF OF AMICUS CURIAE FLORIDA LAND TITLE ASSOCIATION AND AMERICAN LAND TITLE ASSOCIATION

PINO vs BONY | BRIEF OF AMICUS CURIAE FLORIDA LAND TITLE ASSOCIATION AND AMERICAN LAND TITLE ASSOCIATION


Via MATT WEIDNER

EXCERPT:

INTRODUCTION
The Court retained this case so that it could give needed guidance to trial courts and other litigants by its answer to a certified question arising from a mortgage foreclosure action. As the Court wrote: The question certified . . . transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions.
Pino v. Bank of New York, 36 Fla. L. Weekly S711 (Fla. Dec. 8, 2011). Florida Land Title Association (“FLTA”) and American Land Title Association (“ALTA”) file this brief to address the need for this Court to give guidance to trial courts and litigants on the importance of protecting the rights of third parties that have justifiably relied on the finality of a prior court action when buying, extending financing on, or insuring title to real property.

SUMMARY OF ARGUMENT
The Court can expressly limit its decision in this case to the setting aside of a voluntary dismissal in a case where no third party interest in real estate is implicated. Should it choose to do so, FLTA and ALTA have no issues to address. However, if the Court decides to write more broadly, we respectfully ask the Court to emphasize the need to protect the rights of affected third parties when collateral attacks are brought against otherwise final court judgments, orders, decrees or proceedings. The residential mortgage foreclosure crisis has caused a host of problems for homeowners, lenders, and Florida’s court system. The Court addressed many of these problems by forming the Task Force on Residential Mortgage Foreclosures in 2009 and by adopting its recommended amendments to the Florida Rules of Civil Procedure in 2010. However, unlike some other states, the Court has not adequately addressed the protection of third party interests when otherwise final court proceedings are collaterally attacked, especially the interest of those who have purchased foreclosed real estate.

Respectfully, if the Court is to give guidance to trial courts and litigants regarding collateral attacks against foreclosure actions (whether relief is sought under rule 1.540(b) or the use of inherent judicial powers) beyond the narrow facts of this case, it should give guidance on protecting the interests of third parties that purchase, finance and insure title to foreclosed properties. Recognition and protection of these neglected interests is vital to the integrity of our judicial system and to the ultimate resolution of the mortgage foreclosure crisis.

[…]

Download PDF Below

Down Load PDF of This Case

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Big news in BofA MBS litig: Kapnick tosses Walnut vs Counrtywide case

Big news in BofA MBS litig: Kapnick tosses Walnut vs Counrtywide case


Alison Frankel via Reuters Legal/ On the Case is working on this story.

Please check back.

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Full Deposition of Michele Sjolander, Executive Vice President of Countrywide Home Loans, Inc. “Stamp Endorsement”

Full Deposition of Michele Sjolander, Executive Vice President of Countrywide Home Loans, Inc. “Stamp Endorsement”


Remember Michele Sjolander? Well, you can read about her in MERS, Endorsed Note Get SLAMMED by Kings County NY Supreme Court | BANK of NEW YORK v. ALDERAZI -

As well as in ARIZONA BK COURT ORDERS BONY MELLON TO PRODUCE ORIGINAL CUSTODIAN DOCUMENTS

and finally in the FULL DEPOSITION OF BANK OF AMERICA ROBO SIGNER RENEE D. HERTZLER

Fresh off the depo wagon comes her Full Deposition courtesy of 4closurefraud.

Excerpts:

Q It’s employees at Recontrust that stamp the
7 endorsements on the notes in general, including this one;
8 is that right?
9 A Yes.
10 Q And you’ve seen that taking place?
11 A Yes.
12 Q In Simi Valley?
13 A Yes.
14 Q Is there some type of manual or set of
15 instructions?
16 A They have my power of attorney.
17 Q Well, okay. That’s not what I’m asking. But I
18 do want to know about that. But what I’m saying: Is
19 there some sort of manual or instructions or –
20 A If you want to know the desk procedures, you
21 would have to speak with an associate of Recontrust.
22 Q Okay. Okay. Sorry. I’m just reading the notes
23 again. Now, I’m going to try to explain this. I may
24 have to do it a couple of times, but just bear with me.
25 And you’ve been very helpful so far. I appreciate it,
1 there it sat is I guess what I’m asking.
2 A In safekeeping, yes.
3 Q Okay. All right. Now, this is something you
4 touched on a minute ago. I’m going to try to phrase it
5 in a way that makes sense. Who — and let’s just deal
6 with Countrywide in 2007.
7 Who is allowed to be an endorser as you were? I
8 mean, who — let me leave it at that and see if that
9 makes sense to you.
10 A I don’t know what you’re asking.
11 Q What I’m saying is: Are there people other than
12 you at Countrywide in 2007 whose names would appear on a
13 note as an endorsement?
14 A For Countrywide Home Loans, Inc.?
15 Q Yes.
16 A In 2007, I was the endorser for Countrywide Home
17 Loans, Inc.
18 Q Okay. And, I mean, can you explain why you, in
19 particular? I mean, how is that established?
20 A Just lucky.
21 Q I mean, I know this is going to sound silly, but
22 was there some competition for it? Did they come to you
23 and say, “Ms. Sjolander, we choose you?” I mean, how did
24 you come to be designated the person?
25 A It is the position I held within Countrywide.
1 Q Okay. And did you know that going in; you know,
2 if you take this job, you’re going to be the endorser?
3 Was that explained to you at some point?
4 A I knew that my previous boss was the endorser,
5 yes.
6 Q Oh, okay. Now, we covered this, that other
7 people stamped your signature and the other — her name
8 is — oh, it’s Laurie Meder?
9 A Meder.
10 Q Okay. So other people have a stamp with her
11 name and your name on it, and how do those people have
12 the authority to put her name and your name on a note for
13 it to be an effective endorsement?
14 A With my name, they have a power of attorney.
15 Q And what does the power of attorney say?
16 A The power of attorney allows them to place my
17 endorsement stamp on collateral.
18 Q How do they come to have your power of attorney?
19 A I gave that to them.
20 Q But, I mean, in what sort of process? You know,
21 how does someone at Recontrust — I mean, I understand
22 that a power of attorney document exists, I’m assuming;
23 correct?
24 A Yes.
25 Q And how do those people come to operate under
1 it?
2 A It’s common, standard practice.
3 Q I may not be asking it quite right. I guess
4 what I’m asking is: Do they — the people who actually
5 use the stamps — is there more than one, or is there
6 just one stamp? I said “stamps” multiple. Is there only
7 one, or is there –
8 A No, there’s multiple stamps.
9 Q So do these people sign something that says, “I
10 understand I’m under Michele Sjolander’s power of
11 attorney”?
12 A Once again, you would have to look at the desk
13 procedures for Recontrust, and you would have to talk to
14 someone at Recontrust.
15 Q So that’s your understanding that you — did you
16 sign a power of attorney document?
17 A Yes, I did.
18 Q And, I mean, can you explain just in — you
19 know, in general, not word for word what it says, but
20 what does it purport to grant as power of attorney?
21 A It grants Recontrust. They can endorse and
22 assign notes on behalf of myself.
23 Q And do you know if this applies to a select
24 group of people?
25 A I do not have — I would have to read the
1 document.
2 Q Okay. But just to clarify, once again, you
3 don’t actually know the legal mechanism by which these
4 people with the stamps operate under this power of
5 attorney?
6 A As I said, I would have to go back through all
7 of the documentation that surrounds the power of
8 attorney, and Recontrust has desk procedures, and it
9 would be their procedures for them to assign that, to
10 place the stamp on the collateral.
11 Q And this was a procedure in 2007, what we’re
12 talking here is 2007?
13 A Correct.
14 Q And to the present?
15 A No.

<SNIP>

4 Q All of it, okay. Let’s see. Now, you mentioned
5 documents that you had reviewed. The AS-400, that’s a –
6 can you just refresh my memory? What was that again?
7 A A servicing system.
8 Q A servicing system, okay. Now, when you looked
9 over these records and documents before that you
10 mentioned before, where were you when you looked at
11 those?
12 A Simi Valley.
13 Q Simi Valley. And where were the documents that
14 you were looking at?
15 A At that time, they were brought into my office.
16 Q Do you have any idea where they were brought
17 from?
18 A They were printed off the system.
19 Q Printed off the system.
20 A From one of my associates.
21 Q Is that a computer system?
22 A As I said, the collateral tracking is printed
23 off the AS-400, which is our servicing system. The
24 investor number commitment was printed off — it’s a
25 web-based application from secondary marketing. It’s
1 printed off of that. The note was printed off of our
2 imaging system. And I think in this case I asked for a
3 copy of the note showing the endorsements, because in our
4 imaging system it does not — the note is actually imaged
5 prior to my endorsement stamp being in place. So I had
6 my associate contact the bank, which is Recontrust, to
7 get a copy of the original note to show my endorsement
8 stamps, because in imaging it is not shown.
9 Q So if a copy is made of a note that you got from
10 Recontrust, it doesn’t have an endorsement? Is that what
11 you’re saying?
12 A From our bank, it does. In our imaging system,
13 it does not. The note is imaged prior to an
14 endorsement — in ’07, the note is imaged prior to an
15 endorsement being placed on the note. So if you look in
16 our imaging system, you wouldn’t see the chain of title
17 of endorsement.
18 Q And where would you see that?
19 A On the original note.
20 Q Which is — which is where?
21 A In this case, it was in the Fannie Mae vault in
22 Simi Valley, California.
23 Q We’ll come back to the Fannie Mae vault. Okay.
24 So they’re printed off in AS-400 imaging system.
25 A AS-400 and the imaging system are two different
systems.
2 Q Oh, you said AS-400 is a servicing software
3 platform of some type?
4 A Yes.
5 Q And the imaging system, what — can you describe
6 that?
7 A It’s a –
8 Q You know –
9 A It’s when all of the collateral documents and
10 credit file documents are imaged after the closing of a
11 loan, and they are put in our imaging system, and we can
12 go into the system by loan number and pull up the
13 documentation of a loan –
14 Q I guess –
15 A — if you have access to the system.
16 Q But imaging, I mean, I’m imagining a scanner of
17 some sort. Is that what it is?
18 A It is not my area. I cannot tell you.

continue below…

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YVES SMITH: The Legal Lie at the Heart of the $8.5 Billion Bank of America and Federal/State Mortgage Settlements

YVES SMITH: The Legal Lie at the Heart of the $8.5 Billion Bank of America and Federal/State Mortgage Settlements


H/T Abigail – If you had any doubts about whether ‘your’ federal gov’t works for you or BofA, read Yves Smith’s latest:

One in a while, you can discern a linchpin lie on which other important lies hinge. We can point to quite a few in America: the notion of a permanent war on terror, which somehow justifies vitiating not just the Constitution, but even the Magna Carta, or the idea of an imperial executive branch.

Now the apparently-to-be-filed-in-court-today Federal/state attorneys general mortgage settlement is less consequential than matters of life and limb. But it still show the lengths to which the officialdom is willing to go to vitiate the law in order to get its way.

HUD Secretary Donovan, the propagandist in chief for the Federal/state mortgage pact, has claimed he has investor approval to do the mortgage modifications that are a significant portion of the value of the settlement. We’ll eventually see what is actually in the settlement, but the early PR was that “no less than $10 billion” of the $25 billion headline total was to come from principal reductions. Modifications of mortgages not owned by banks, meaning in securitized trusts, are counted only 50% and before Donovan realized he was committing a faux pas, he said he expected 85% of the mods to be from securitizations, so that means $17 billion.

[NAKED CAPITALISM]

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BANK OF NEW YORK v. Cupo | NJ Appellate Div. “plaintiff here does not have standing as an assignee to prosecute this foreclosure action”

BANK OF NEW YORK v. Cupo | NJ Appellate Div. “plaintiff here does not have standing as an assignee to prosecute this foreclosure action”


BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2006-23, Plaintiff-Respondent,
v.
ALEXANDER T.J. CUPO, Defendant-Appellant,
MRS. ALEXANDER T.J. CUPO, WIFE OF ALEXANDER T.J. CUPO AND CITIBANK SOUTH DAKOTA N.A., Defendants.

No. A-1212-10T2.
Superior Court of New Jersey, Appellate Division.

Argued October 5, 2011.
Decided February 28, 2012.
Gerald J. Monahan argued the cause for appellant.

Kristina G. Murtha argued the cause for respondent.

Before Judges Fuentes, Graves and Koblitz.

NOT FOR PUBLICATION

PER CURIAM.

In this mortgage foreclosure action, defendant Alexander Cupo appeals from the decision of the Chancery Division, General Equity Part, denying his motion to vacate default judgment and dismiss the complaint filed by plaintiff Bank of New York, as Trustees for the Certificate-Holders CWABS, Inc., Asset-Banked Certificates, Series 2006-23. Defendant argues that the trial court erred when it denied his motion because: (1) plaintiff did not have physical possession of the promissory note at the time it filed its complaint for foreclosure; (2) plaintiff did not have standing to prosecute the foreclosure because the original lender, Countrywide Home Loans, assigned the promissory note and mortgage to plaintiff thirty-nine days after the complaint was filed; and (3) both plaintiff and its assignor Countrywide Home Loans failed to satisfy the requirements under N.J.S.A. 2A:50-56.

After reviewing the record before us, we reverse and remand this matter to the General Equity Part for a hearing to determine whether plaintiff has standing to file the complaint. As we made clear in Deutsche Bank Nat’l Trust Co. v. Mitchell, 422 N.J. Super. 214, 224 (App. Div. 2011), a foreclosing mortgagee must demonstrate that it had the legal authority to enforce the promissory note at the time it filed the original complaint for foreclosure. As correctly noted by defendant here, the record shows that the original lender, Countrywide Home Loans, assigned the promissory note and mortgage to plaintiff on May 10, 2007, thirty-nine days after the complaint was filed.

The following facts will inform our analysis of the issues raised by the parties.

I

On December 22, 2006, defendant signed a promissory note to Countrywide Home Loans, Inc., memorializing a $245,000 loan. To secure payment of the note, defendant executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), acting solely as a nominee for Countrywide Home Loans, Inc. The mortgage was recorded on January 11, 2007. Defendant failed to make the first payment on the loan that was due on February 1, 2007. In fact, to date, defendant has not made any payments on the loan. Pursuant to the terms of the loan, defendant defaulted on March 1, 2007. Countrywide mailed defendant a notice of intent to foreclose dated March 5, 2007.

On May 10, 2007, plaintiff Bank of New York filed a complaint in foreclosure, seeking to sell the mortgaged lands to satisfy the amount due. The complaint indicated that “[b]y assignment of mortgage, Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for Countrywide Home Loans, Inc. assigned its mortgage to Bank of New York as Trustee for the Certificateholders CWABS, Inc., Asset-Backed Certificates, Series 2006-03 which assignment has been sent for recording in the office of the clerk of Hudson County.” Plaintiff served the summons and complaint on defendant on June 14, 2007.

The record shows that MERS assigned its mortgage to Bank of New York as Trustee for the Certificateholders CWABS, Inc., Asset-Backed Certificates, Series 2006-23, on June 19, 2007. The assignment was recorded on July 5, 2007. Plaintiff filed a request to enter default against defendant on August 20, 2007. Plaintiff mailed a notice of intent to enter final judgment on August 29, 2007. In this light, the matter was deemed uncontested and the court entered final judgment by default on November 15, 2007.

Despite the entry of final judgment, plaintiff and defendant continued to discuss a possible settlement of the suit. Sheriff sales were postponed a number of times during these negotiations.[1] The parties eventually proceeded to mediation. After two sessions, the parties reached an apparent impasse. Although a third session was scheduled for September 28, 2010,[2] defendant moved to vacate the default judgment and dismiss plaintiff’s complaint on August 26, 2010, arguing that plaintiff lacked standing to prosecute the foreclosure action, and failed to comply with the notice requirements in N.J.S.A. 2A:50-56. Plaintiff argued that defendant had not established excusable neglect nor raised a meritorious defense. The trial court denied defendant’s motion to vacate the default judgment as well as his subsequent motion for reconsideration.

II

We start our analysis by reaffirming certain bedrock principles of appellate review. The decision to vacate a judgment lies within the sound discretion of the trial court, guided by principles of equity. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Under Rule 4:50-1:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party’s legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

The trial court’s decision to vacate a judgment under Rule 4:50-1 “will be left undisturbed unless it represents a clear abuse of discretion.” Hous. Auth. of Morristown, supra, 135 N.J. at 283 (citing Mancini v. EDS, 132 N.J. 330, 334 (1993)). To vacate a default judgment, the defendant “must show that the neglect to answer was excusable under the circumstances and that he has a meritorious defense.” Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff’d, 43 N.J. 508 (1964). Because a default judgment is not predicated on a determination that plaintiff has met its burden of proof after providing a defendant his or her day in court, the trial court should review a motion to set aside a default judgment “with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.” Hous. Auth. of Morristown, supra, 135 N.J. at 283-84 (quoting Marder, supra, 84 N.J. Super. at 318-19).

Here, defendant’s argument challenges directly the power of the court to grant the relief requested by plaintiff. Defendant argues that the default judgment obtained by plaintiff is utterly void from its inception because plaintiff did not have standing to prosecute the case at the time it filed the foreclosure complaint.

A mortgagee may establish standing by showing “that it is the holder of the note and the mortgage at the time the complaint was filed.” Deutsche Bank, supra, 422 N.J. Super. at 224-25 (internal quotation marks omitted). Plaintiff must have “presented an authenticated assignment” dated prior to its filing of the original complaint. See id. at 225. Here, the only evidence of the assignment is the assignment document dated June 19, 2007, which is dated thirty-nine days after plaintiff filed the complaint. As was the case in Deutsche Bank, plaintiff here does not have standing as an assignee to prosecute this foreclosure action.

Because the record before us does not include a certified copy of the original promissory note, we do not address plaintiff’s potential standing under the provisions of the Uniform Commercial Code (UCC) governing the transfer of negotiable instruments. N.J.S.A. 12A:3-101 to-605. We thus remand this matter to the trial court to conduct a hearing to determine whether, before filing the original complaint, plaintiff was in possession of the note or had another basis to achieve standing to foreclose, pursuant to N.J.S.A. 12A:3-301.

Finally, defendant argues that plaintiff failed to provide notice, pursuant to N.J.S.A. 2A:50-56(c), that defendant could sell his home prior to going into foreclosure. We reject this argument substantially for the reasons expressed by the trial court.

N.J.S.A. 2A:50-56(c) requires, in relevant part:

The written notice shall clearly and conspicuously state in a manner calculated to make the debtor aware of the situation

….

(8) the right, if any, of the debtor to transfer the real estate to another person subject to the security interest and that the transferee may have the right to cure the default as provided in this act, subject to the mortgage documents[.]

[(Emphasis added).]

The plain language of the statute only requires inclusion of the right to transfer the real estate if the mortgagor actually has the right to transfer the real estate subject to the security interest. If the mortgage documents do not provide that right, the mortgagee does not have to include that language in its notice of foreclosure.

Here, defendant’s mortgage states:

If all or any part of the Property or any Interest in the Property is sold or transferred… without Lender’s prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument.

[(Emphasis added).]

Thus, although the mortgage permits defendant to transfer the property, a nonconsensual transfer is treated as a default, authorizing plaintiff to accelerate the payment of the outstanding principal.

In this light, the trial judge gave the following explanation for rejecting defendant’s argument:

[T]he statute only requires that language to be in [the notice under N.J.S.A. 2A:50-56(c)] if that right exists, and in this case, as I understand it, the mortgage specifically provides that the defendant does not have the right to have anyone else assume the debt or to transfer his interest in the property without the lender’s consent.

….

There is language in the notice of intent, as I read it…, if you are willing to sell your property, your home, in order to avoid foreclosure, it is possible that the sale of your home can be approved through Countrywide, even if your home is worth less than what is owed on it.

So it tells him he can convey his home, it has to be approved by Countrywide, but to have it sold to anyone or to have someone else assume the debt is precluded by virtue of the mortgage instrument itself.

So… that would actually be misleading if that language were in there, because he doesn’t have that right…. [T]he language that you’re saying should be in the notice of intent is in violation of the mortgage document itself.

We agree with the trial judge’s analysis and ultimate conclusion. N.J.S.A. 2A:50-56(c) does not require the lender to notify the borrower of his or her right to transfer the property; it only requires notice of the right to transfer the property subject to the mortgage. Here, the mortgage document prohibits transfer of the property subject to the mortgage without consent. Under these circumstances, plaintiff was not required to provide defendant with notice of an unequivocal right to transfer the property.

Reversed on the issue of standing and remanded for such further proceedings as may be warranted. We do not retain jurisdiction.

[1] Defendant is an intellectually challenged young man who also suffers from a digestive disorder. His father John Cupo, a realtor, has assumed the responsibility to advocate for his son. The record thus includes a certification by defendant’s father in support of defendant’s application to adjourn a court-ordered sheriff’s sale. According to John Cupo, after extensive negotiations on behalf of his son with representatives of Countrywide, the parties reached a tentative settlement in June 2008, whereby Countrywide agreed to restructure defendant’s outstanding debt “by consolidating the loan balance, late fees and penalties with a[n] 11% interest rate going forward.” John Cupo expressed his frustration that despite “innumerable attempts” to inform the lender of his son’s willingness to accept this settlement, “Countrywide… failed to respond to the acceptance of their proposal….”

[2] The parties met for a third and final mediation session on September 28, 2010. The mediation ended without a settlement.

[ipaper docId=83718961 access_key=key-1d4khihroisgfw14dqs1 height=600 width=600 /]

 

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2nd Circuit greenlights novel vehicle for BofA’s MBS settlement

2nd Circuit greenlights novel vehicle for BofA’s MBS settlement


Alison Frankel-

Way back in June, a day or so after Bank of America announced its proposed $8.5 billion settlement with Countrywide mortgage-backed securities investors, I wrote about the very peculiar vehicle through which the bank was seeking judicial approval of the arrangement. The settlement was filed by the Countrywide MBS trustee, Bank of New York Mellon, under Article 77 of the New York state code. Article 77, which allows a trustee to seek a judicial endorsement of trust-related decisions, is usually invoked in garden-variety trust disputes, not in an $8.5 billion deal affecting thousands of beneficiaries in 530 trusts. But the law offered distinct advantages for BofA, BNY Mellon, and the group of 22 institutional investors that negotiated the Countrywide MBS settlement. Under New York trust law, trustees have broad discretion to make decisions on behalf of the trusts they oversee. As long as the judge presiding over an Article 77 proceeding determines that the trustee has acted reasonably and hasn’t abused its discretion, the trustee’s decision gets a stamp of judicial approval. Anyone who disagrees with the trustee — and the banks and institutional investors that negotiated the BofA proposed settlement knew that there would be many investors who didn’t like it — bears the heavy burden of proving that the trustee acted outside the bounds of reason.

[REUTERS LEGAL]

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Bank of N.Y. v Spadafora | NY APPELLATE DIVISION : 2nd JUDICIAL DEPARTMENT “SC Rendered Deed & Mortgage Invalid, Forged Signature”

Bank of N.Y. v Spadafora | NY APPELLATE DIVISION : 2nd JUDICIAL DEPARTMENT “SC Rendered Deed & Mortgage Invalid, Forged Signature”


Decided on February 7, 2012

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2011-01986
2011-01987
(Index No. 06-03395)

[*1]Bank of New York, etc., appellant-respondent,

v

John Spadafora, et al., defendants, Lucy Spadafora, respondent-appellant.

 

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White
Plains, N.Y. (Robert Hermann, Lee S. Wiederkehr, Jacob E. Amir,
and Eliot Schuman of counsel), for appellant-respondent.
McMahon, McCarthy & Verrelli, Bronx, N.Y. (Matthew J.
McMahon of counsel), for respondent-
appellant.

DECISION & ORDER

In an action to foreclose a mortgage on certain real property, the plaintiff appeals from (1) a decision of the Supreme Court, Westchester County (Friedman, J.H.O.), dated February 12, 2010, made after a nonjury trial, and (2) so much of a judgment of the same court dated August 18, 2010, as, upon the decision, declared that a certain deed and the subject mortgage are null and void, and is in favor of the defendants and against it dismissing the complaint, and the defendant Lucy Spadafora cross-appeals (1) from the same decision, and (2), as limited by her brief, from so much of the same judgment as imposed an equitable lien against the subject property in favor of the plaintiff in the sum of $328,796.97.

ORDERED that the appeal and cross appeal from the decision are dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510); and it is further,

ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced the instant action against, amongst others, the defendant John Spadafora (hereinafter John) seeking to foreclose a mortgage (hereinafter the subject mortgage) on certain real property allegedly owned by John (hereinafter the subject premises). Sometime thereafter, Lucy Spadafora (hereinafter Lucy), John’s wife, was granted leave to intervene in the action as a party defendant, claiming that her signature was forged on the deed by which she allegedly had conveyed title to the subject premises to John (hereinafter the subject deed).

The Supreme Court conducted a nonjury trial, after which it issued a decision in which it explained its conclusion, inter alia, that Lucy’s signature on the subject deed was forged, and that title to the subject premises remained with her, but that the plaintiff is entitled to an equitable lien against the subject premises.

Thereafter, the Supreme Court entered a judgment upon the decision in which it declared that both the subject deed and the subject mortgage on the premises are null and void, and [*2]dismissed the complaint. The plaintiff appeals from those portions of the judgment. The judgment also, inter alia, imposed an equitable lien against the subject premises in favor of the plaintiff in the sum of $328,796.97. Lucy cross-appeals from that portion of the judgment.

Contrary to the plaintiff’s contention, under the circumstances, the Supreme Court providently exercised its discretion in limiting the rebuttal testimony of the plaintiff’s handwriting expert (see Farrell v Gelwan, 30 AD3d 563, 563-564; American Linen Supply Co. v M.W.S. Enters., 6 AD3d 1079, 1081; Gobbelet v Hit Cycle Corp., 121 AD2d 682, 683; cf. Simpson v Bellew, 161 AD2d 693, 698), and in refusing to allow two notaries public to testify as rebuttal witnesses (see Farrell v Gelwan, 30 AD3d at 563; see also Hageman v Jacobson, 202 AD2d 160, 161; Kaminsky v Segura, 4 Misc 3d 1019[A], 2004 NY Slip Op 50963[U][2004], affd 26 AD3d 188).

“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s authority is as broad as that of the trial court and includes the power to render the judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial judge who was in the position to assess the evidence and the credibility of the witnesses” (D’Argenio v Ashland Bldg., LLC, 78 AD3d 758, 758; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; A. Montilli Plumbing & Heating Corp. v Valentino, 90 AD3d 961, 961).

Here, the Supreme Court’s determinations that the signature on the subject deed was forged, rendering it and the subject mortgage invalid (see Bryant v Bryant, 58 AD3d 496, 496; cf. John Deere Ins. Co. v GBE/Alasia Corp., 57 AD3d 620, 622), and that the plaintiff is entitled to an equitable lien against the subject premises (see King v Pelkofski, 20 NY2d 326, 333; Federal Natl. Mtge. Assn. v Woodbury, 254 AD2d 182, 182; cf. Crispino v Greenpoint Mtge. Corp., 304 AD2d 608, 609-610), are warranted by the facts. Thus, we decline to disturb those determinations.
RIVERA, J.P., ENG, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”

In Re: ALGER | MA BK Court Denies Countrywide & BONY’s Motion For Summary Judgment “NOTICE of RIGHT TO CANCEL”


UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
CENTRAL DIVISION

 In re:
JAMES E ALGER, JR. and
DEBORAH J ALGER
Debtors

 

JAMES E. ALGER, JR. and DEBORAH J. ALGER, Plaintiffs,

v.

COUNTRYWIDE HOME LOANS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-11CB MORTGAGE PASS-THROUGH CERTIFICATES, 11CB, Defendants.

Excerpt:

Each acknowledgment form that the Algers signed contained the following language: “The undersigned each acknowledge receipt of two copies of NOTICE of RIGHT TO CANCEL and one copy of the Federal Truth in Lending Disclosure Statement.” It is unclear whether the Algers acknowledged that each of them received two copies for a total of four or whether they each acknowledged receipt of two copies in total. In analyzing the identical acknowledgment language in In re Cromwell, Judge Hillman, too, found the language ambiguous:

The placement of the word “each” before “acknowledge” renders the phrase susceptible to two meanings. First, that the Debtors acknowledged each receiving two copies as the Defendants[] assert, or second, that they each acknowledged receipt of a total of two copies as the Debtors suggest. While I understand that Countrywide intended the former as that is what the law required, the average consumer would not have necessarily known that. 2011 WL 4498875, at *17. The existence of this ambiguity neutralizes any presumption created by the acknowledgment in favor of delivery of the requisite number of Notices. See id. (resolving the ambiguity “against the drafter of the Acknowledgment such that it did not create a presumption of adequate delivery of a total of four copies”).

In the absence of a presumption of adequate delivery, the burden shifts to the defendants to prove that the Algers each received two copies of the Notice for a total of four for the couple. See id. While the defendants rely on the deposition testimony of Ms. Manugian as evidence of her general practice during closings to establish that the Algers received four copies, the Algers have attested through their affidavits that the first time their loan file was opened after the closing it contained a total of three Notices. The question of how many copies of the Notice the Algers received remains a genuine and material fact in dispute. The defendants’ motion for summary judgment is therefore DENIED.

[…]

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Whistleblower Records Shed Light On BNY Mellon Case

Whistleblower Records Shed Light On BNY Mellon Case


We all would agree that all the banks share the same protocols in how they conduct business. All frauds.

HuffPO-

Confidential whistleblower documents that helped spark a massive state and federal investigation into how Bank of New York Mellon Corp charged pension funds for currency exchange, provide a rare window into how a bank insider aided a lawsuit against the bank.

The information provided by whistleblower Grant Wilson, who worked at BNY Mellon, included a detailed analysis of how the bank allegedly provided “fictitious” foreign-currency costs for pension funds.

The analysis included a step-by-step guide to how currencies were traded and internal profits generated by the bank, according to documents seen by Reuters. A memo detailing fellow employees also was provided.

[HUFFINGTONPOST]

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Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons

Mortgage Fraud: Bank of America, Bank of New York Mellon, Countrywide Home Loans Servicing, Law Offices of David Stern, Cheryl Samons


Mortgage Fraud

Bank of America
Bank of New York Mellon
Countrywide Home Loans Servicing
Law Offices of David Stern
Cheryl Samons

Action Date: December 10, 2011
Location: West Palm Beach, FL

In a very unusual move, the FL Supreme Court rejected the settlement in the PINO case last week and will issue a decision about fraudulent mortgage documents.

Florida’s Fourth District Court of Appeals had certified a procedural foreclosure question to the Supreme Court, stating: “This is a question of great public importance” since “many, many mortgage foreclosures appear tainted with suspect documents.”

At the trial court level, PINO’s attorneys had asked the court to sanction BNY Mellon by denying it the equitable right to foreclose the mortgage at all. The district court observed that if this sanction were available after a voluntary dismissal, “it may dramatically affect the mortgage crisis in this state.”

The Fourth District Court of Appeals decision seemed to recognize that very frequently, bank lawyers used dismissals when homeowners raised a question regarding the legitimacy of the documents filed by the banks.

Advocates for homeowners were encouraged by the Supreme Court’s action denying the settlement as the final resolution.

So who exactly is NOT happy?

Perhaps the preparers and signers of the two mortgage assignments in the PINO case.

One of the Assignments was prepared by the Law Offices of David J. Stern, Esq. This is signed by Stern’s office manager, Cheryl Samons who signs as an Asst. Sect. of MERS.

This is dated September 19, 2008 – though not filed until February 18, 2009.

The Lis Pendens (beginning of the foreclosure in judicial states) was dated October 8, 2008.

This is an assignment of the Mortgage and the Note to:

The Bank of New York Mellon F/K/A The Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust 2006-OC8.

For anyone unfamiliar with Cheryl Samons many acts in the Law Offices of David Stern (a law firm that spent a lot of $$ entertaining officials from FANNIE), the sworn statements from paralegals and notaries from the investigation of then Asst. A.G.s June Clarkson & Theresa Edwards (those overly aggressive FORMER prosecutors) are available for review at StopForeclosureFraud.com.

According to these sworn statements, Samons signed thousands of documents each week, allowed other people to sign her name, did not read what she signed, signed other names, etc. She did these things because her boss, David Stern, was very generous (see the articles by Andy Kroll in Mother Jones for more details on this).

The second assignment was notarized July 14, 2009 and filed July 29, 2009.

It seems they forgot all about the first assignment because once again it is an assignment from MERS to the same trust. This Assignment was also prepared by the Law Offices of David Stern. (If the first assignment was effective, of course, MERS had nothing to convey).

The signer this time was Melissa Viveros in Tarrant County, TX.

While she signs as a MERS officer, Viveros in many other reported cases appears as an officer of Countrywide Home Loans Servicing, N/K/A BAC Home Loans Servicing.

So, once again, Bank of America (then the parent of BAC Home Loans Servicing) and Bank of New York Mellon have the most to lose in the short run – and in the long run, investors in CWALT and CWABS trusts.

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NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY

NUCLEAR, NUCLEAR BOMBSHELL!!!!! FLORIDA SUPREME COURT RESURRECTS PINO v. BONY


H/T Matt Weidner

As reflected above, the Fourth District certified this issue to be one of great public importance, and in doing so, noted that “many, many mortgage foreclosures appear tainted with suspect documents” and that Pino’s requested remedy, if imposed, “may dramatically affect the mortgage foreclosure crisis in this State.” Pino, 57 So. 3d at 954-55.


Supreme Court of Florida

No. SC11-697

ROMAN PINO,
Petitioner,

vs.

THE BANK OF NEW YORK, etc., et al.,
Respondents.

[December 8, 2011]

PER CURIAM.

The issue we address is whether Florida Rule of Appellate Procedure 9.350 requires this Court to dismiss a case after we have accepted jurisdiction based on a question certified to be one of great public importance and after the petitioner has filed his initial brief on the merits.1 This narrow question arose after the parties to this action filed a joint Stipulated Dismissal, which advised that they had settled this matter and stipulated to the dismissal of the review proceeding pending before this Court. It cannot be questioned that our well-established precedent authorizes this Court to exercise its discretion to deny the requested dismissal of a review proceeding, even where both parties to the action agree to the dismissal in light of an agreed-upon settlement. The question certified to us by the Fourth District Court of Appeal in this case transcends the individual parties to this action because it has the potential to impact the mortgage foreclosure crisis throughout this state and is one on which Florida’s trial courts and litigants need guidance. The legal issue also has implications beyond mortgage foreclosure actions. Because we agree with the Fourth District that this issue is indeed one of great public importance and in need of resolution by this Court, we deny the parties’ request to dismiss this proceeding.

[…]

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Future of foreclosures in N.J. hinges on state Supreme Court decision | US Bank N.A. v. Guillaume

Future of foreclosures in N.J. hinges on state Supreme Court decision | US Bank N.A. v. Guillaume


I disagree with the judge’s motion words below and see video below as to why even attorney’s have a difficult time.

“I have a lot of problems with saying that all that’s going, with all this evidence of [c]ourt process for over a year, to just rely on trying to negotiate something with the bank was like sticking your head in the sand.

This wasn’t going to go away and they
didn’t get any assurance from the bank that
they were succeeding in their negotiation
efforts or that an answer to the complaint
was not required. I mean they just focused
on one path. And they ignored the
negotiation path and they ignored the
litigation side of things. You can’t do
that.

And I have to say that . . . Mrs.
Guillaume was being so aggressive and so
persistent in trying to negotiate and going
to all these different places to get help,
but the one place she wasn’t going was a
member of the bar, a lawyer which is usually
what you do when you get [c]ourt papers.

Or if you absolutely can’t afford a
lawyer and that’s the case of many
foreclosures, a very heavy self-represented
area of the law to at least contact the
[c]ourt yourself and you send in some
rudimentary answer. And it doesn’t have to
be fancy. I mean you write a letter to the
foreclosure unit, they’ll stamp contested on
it.

Because I’ve seen so many of them long
hand. But nothing was done. And I don’t
regard that as excusable neglect. So that
prong is lacking.”  

(emphasis added).

Simply wrong, one does NOT understand how frustrating it is to even try to get anyone from the “bank” on the phone, attempting a modification as we have read time and time again were nothing but DISASTROUS and GOING ABSOLUTELY NO PLACE!

[Please watch Michigan Atty Vanessa Fluker and you’ll understand why].

Lets not forget, this reversal that goes to the heart of this from out of New Jersey: BANK OF NEW YORK vs. LAKS | NJ Appeals Court Reversal “A notice of intention is deficient…if it does not provide the name and address of the lender”

NJ.COM-

In the nearly five months since the state Supreme Court effectively allowed six of the country’s biggest banks to begin filing foreclosures again, attorneys and court officials have been expecting a flood of new filings to hit the courts.

Except it hasn’t happened. Foreclosure filings are down 83 percent as of October this year, compared with the same time period last year, according to court figures, and there are at least 100,000 cases either pending in the system or waiting to be submitted.

Attorneys involved in the work in New Jersey point to at least one reason for the significant delay: a court case that has reached the state Supreme Court, with oral arguments on Wednesday.

The case, US Bank National Association v. Guillaume, is important because the court …

[NJ.COM]

[ipaper docId=74692087 access_key=key-1xrvd0kemha1r7mycu2h height=600 width=600 /]

 

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NY, Delaware AGs may intervene in BofA, BNY Mellon MBS settlement

NY, Delaware AGs may intervene in BofA, BNY Mellon MBS settlement


What a team!

HW-

Attorneys General for Delaware and New York secured permission from a U.S. District Judge to intervene in court proceedings discussing the Bank of New York Mellon (BK: 18.03 -0.33%) $8.5 billion settlement with Bank of America (BAC: 5.045 -3.90%) over toxic mortgage-backed securities.

The AGs are eager to get a presence in the proceedings, so they can represent the interests of the investing public in their respective states before a final deal is reached. Admission to the process gives the AGs a chance to hear where talks are going and an opportunity to object to provisions of the deal.

[HOUSING WIRE]

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NY, Delaware AGs Allowed To Intervene In $8.5B Bank of America Settlement

NY, Delaware AGs Allowed To Intervene In $8.5B Bank of America Settlement


“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

 WSJ-

The federal judge presiding over the landmark $8.5 billion settlement between Bank of America Corp. (BAC) and major investors in mortgage-backed securities has allowed the state attorneys general of New York and Delaware to intervene in the case.

In a ruling dated Friday, Judge William H. Pauley agreed with the state lawmakers that the massive settlement carries implications for the nation’s financial markets, not just the investors who will be impacted by the pact.

“This action concerns far more than the financial interests of a few sophisticated investors,” Pauley wrote. “And the intervention of the State AGs in this action will protect the interests of absent investors.”

[WALL STREET JOURNAL]

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Critics call Michigan Supreme Court ruling on foreclosures ‘intellectually dishonest’

Critics call Michigan Supreme Court ruling on foreclosures ‘intellectually dishonest’


I think we all can agree with this post… but those who benefit from real estate.

Where is Bill Hultman these days?

MLive-

A ruling this week by the Michigan Supreme Court put an end to some uncertainty in the real estate market, but it was a disappointment to local housing advocates.

The high court reversed an April state Court of Appeals decision that prevented the Mortgage Electronic Registration System, or MERS, from bringing foreclosures against Michigan homeowners.

The system was widely used by the lending industry to streamline the packaging and selling of mortgages as securities without recording the deeds at county offices. In that role, it also started countless foreclosure proceedings.

The appeals court ruled that MERS did not own legal title to the properties and could not be the foreclosing party. That decision called into question the validity of thousands of foreclosures across the state, wreaking havoc in the housing market. Closings were canceled and homeowners who had purchased foreclosed houses wondered whether they had clear title to the property.

[MLIVE]

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Adam Levitin | Soured on Saurman

Adam Levitin | Soured on Saurman


Credit Slips -

Elected justice moves swiftly. The Michigan Supreme Court handed down its opinion in Residential Funding Co. v. Saurman on Wednesday, a couple of weeks after oral argument. They were in a rush to get the opinion out, it seems. Unfortunately, it’s a terrible opinion. The Michigan Supreme Court reversed the appellate court to hold that MERS has the power to conduct non-judicial foreclosures (foreclosure by advertisement) in Michigan.

To reach this conclusion, the Michigan Supreme Court had to conclude that MERS had an interest in the indebtedness–that is an interest in the note.  MERS, however, expressly disclaims any interest in the note. So it took some acrobatics and legerdemain and outright tautology to get no to mean yes. Here’s how they did it:

[CREDIT SLIPS]

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Ingham County Register of Deeds, Curtis Hertel Jr. statement on Michigan Supreme Court’s MERS decision

Ingham County Register of Deeds, Curtis Hertel Jr. statement on Michigan Supreme Court’s MERS decision


“The Michigan Supreme Court decision on Mers is an embarrassment, to those of us who care about the property records of this state, and more importantly the citizens who are affected by these foreclosures. Mers created a shadow registry system that makes it impossible for individual citizens and their government officials to track who owns a mortgage. At the Michigan Chambers request, they now have the right to masquerade as a bank and take a citizen’s home . It is unfortunate that Justices Young, Markman, Zahra and Mary Beth Kelly decided to side with special interest groups instead of Michigan citizens.“

- Curtis Hertel Jr.

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Legal issues slow foreclosures in New Jersey

Legal issues slow foreclosures in New Jersey


I think this is the case in every state and all will agree


North Jersey-

In a small Bergen County courtroom one recent Friday, a sheriff’s officer auctioned off two foreclosed properties in a matter of minutes, as a handful of investors kept their eyes open for bargains.

It was a far cry from the typical sheriff’s auction of mid-2010, when 15 or more properties were auctioned weekly and up to 100 investors crowded the courthouse’s large jury room.

[…]

The reason: an August appellate court decision, Bank of New York v. Laks, according to Kevin Wolfe, head of the state’s Office of Foreclosure. In that case, the court dismissed a foreclosure, finding the lender violated the state Fair Foreclosure Act because it didn’t properly identify itself in a notice sent to the troubled homeowners.

[NORTH JERSEY]

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