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JPMorgan Chase Whistleblower: ‘Essentially Suicide’ To Stand Up To Bank

JPMorgan Chase Whistleblower: ‘Essentially Suicide’ To Stand Up To Bank


I hear what she’s saying about googling her name, because I can tell you there were a ton of “Linda Almonte” searches that lead to SFF.

She’s a hero to many.

HuffPO-

When Linda Almonte alerted her boss at JPMorgan Chase about potential fraud in a major deal she was helping to close, she expected him to applaud her great catch.

Instead, he fired her.

“We went down fast,” said Almonte, 41, about her family. She had been making $100,000 a year as a division vice president at Chase, enough to support her stay-at-home husband, their four kids, ages 12 to 22, and rent a three-bedroom house in San Antonio, Texas.

Her move at Chase amounted to “essentially suicide,” Almonte told The Huffington Post. No bank in town would hire her after word spread that she had stood up to the banking giant, she said. After more than a year of fruitless job hunting, Almonte and her family left town, landing at a hotel near Disney World, paying $300 a week for a two-bedroom with a kitchenette.

[HUFFINGTON POST]

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Did Chase (or Chase’s lawyer) fake foreclosure evidence AFTER doing the deal w/ Fed & State law enforcers? You decide:

Did Chase (or Chase’s lawyer) fake foreclosure evidence AFTER doing the deal w/ Fed & State law enforcers? You decide:


Thanks to Abigail Field for the title post and thank you to Joe over at BP Investigative Agency for this submission.

According to a Handwriting Expert… yes, documents were forged and altered.

As if Breaking and Entering weren’t enough, add forgery to the lengths JP Morgan Chase will go to take a home.

When foreclosure proceedings began on William Paatalo’s  Montana property in  January 2010, he, like many homeowners, felt emotionally drained and devastated. “ I couldn’t believe how I got to this place.  I had perfect credit in 2008.  I was making payments on three properties through Washington Mutual, but they began to misapply payments to the wrong accounts and even turned off my ‘auto-pay’ feature in an attempt to sabotage my credit and spin me into default.”

  By the time Paatalo discovered the error, his credit had tanked and things started spiraling downward. “It was brutal. My business lines of credit were shut down, and I couldn’t access any of my lines of credit ; WAMU was slow to acknowledge the problem; the credit agencies ignored me; and then I got the foreclosure notices.  It was a living hell. I spent a lot time being angry. “

In the end, Paatalo did what many home owners  are now doing.  He started pushing back.  “I didn’t want to just roll over.  I figured I still had some rights, so I began the painstaking process of researching my loan in hopes I could modify or delay the action.  The Trustee’s sale wasn’t   scheduled until June, so I figured I had a little bit of time to rectify the situation.”

But unbeknownst to Paatalo, Chase, who had acquired WAMU in 2008, took early action.  In March, they broke into his home, changed all the locks, and stole property, including  personal documents and a handgun.  “I was out of town, and when I found out what they had done I was outraged.” 

Paatalo filed a criminal complaint and took additional action. However, law enforcement sat idle as it was perceived to be a “civil matter.”  Tired of being victimized, he began investigating practices in the mortgage industry and uncovered much of what is now known.  In October of 2010 he filed suit against JP Morgan Chase pro se and has been litigating since then. 

But his case, scheduled for trial in September, took a bizarre turn recently.  “I was reading about the class action suit in California Bakenie v. JPMorgan Chase Bank  and I got to wondering if my note might’ve been forged.  So I got a color copy of the note, and in my office I magnified the signatures 800 fold.”

What he found was astounding.  Even to the layman’s eye, the signatures appeared to have been photo-shopped.  In one instance, even the signature line was colored blue.  “I couldn’t believe what I was seeing.  It looked like something a high school kid did. 

 Paatalo sent the document to Dr. Laurie Hoeltzel  in southern California;  a handwriting / document expert with over 20 years of experience.  Her findings verified what Paatalo suspected, the documents had indeed been forged.  “All along Chase has argued on record they hold the note.  Clearly, they do not.  It’s one thing to claim the note entitles them to foreclose, it’s another to commit a felonious act to illegally take a home they are not entitled to.  It’s absolutely appalling.  This is no longer a civil dispute.”

 Paatalo intends to file a criminal complaint against Chase, along with formal Bar complaints against their attorneys . The expert declaration is now in the hands of Montana’s Federal Magistrate Judge Carolyn  Ostby.   How this new information plays out in court is yet to be determined, but Paatalo is sure of one thing.  “Nothing these banks do surprises me anymore.  I can only hope our judicial system has the backbone to hold these people accountable.”

 Addendum:  Paatalo notified Chase of his discovery last week and was attempting to have the evidence surrendered to the court and sequestered.  After all, attorneys have a duty to uphold justice and refrain from assisting in fraud. He was notified today by Chase’s attorney that the documents had been removed from Butte, Montana and are now in Minneapolis, Minnesota.  Paatalo has objected to the transferring of the documents, and Chase’s attempts to withhold evidence of a crime.


Read the handwriting expert’s affidavit below begin at page 5…

[ipaper docId=86007729 access_key=key-2fuvvomrypzyggrt999p height=600 width=600 /]

 

 

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Linda Almonte | How a Whistleblower Halted JPMorgan Chase’s Card Collections

Linda Almonte | How a Whistleblower Halted JPMorgan Chase’s Card Collections


American Banker-

No sooner did Linda Almonte show up for work on November 30, 2009 than was she escorted out the door by security at JPMorgan Chase’s Credit Card Litigation Support Group in San Antonio. A midlevel Chase executive who oversaw business process execution employees, Almonte says she was fired after just six months on the job for challenging her superiors about the accuracy of the bank’s credit card records.

Colleagues first learned of her dismissal later in the day when operations manager Jason Lazinbat, Almonte’s former boss, gathered bank staff in a conference room and announced she was no longer with the bank. Under no circumstances, Lazinbat warned, were staffers to communicate with Almonte, recalls Carole McGinn, a quality control worker who spent 14 years at Chase. The account was confirmed by second employee, who requested to speak anonymously.

[AMERICAN BANKER]

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OCC Probing JPMorgan Chase Credit Card Collections

OCC Probing JPMorgan Chase Credit Card Collections


:) Credit Cards WILL BE the NEXT robo-signing scandal! :)

American Banker-

JPMorgan Chase & Co. took procedural shortcuts and used faulty account records in suing tens of thousands of delinquent credit card borrowers for at least two years, current and former employees say.

The process flaws sparked a regulatory probe by the Office of the Comptroller of the Currency and forced the bank to stop suing delinquent borrowers altogether last year.

The bank’s errors could call into question the legitimacy of billions of dollars in outstanding claims against debtors and of legal judgments Chase has already won, current and former Chase employees say.

For the banking industry at large, the situation at Chase highlights the risk that shoddy back-office procedures and flawed legal work extends well beyond mortgage servicing.

“We did not verify a single one” of the affidavits attesting to the amounts Chase was seeking to collect, says Howard Hardin, who oversaw a team handling tens of thousands of Chase debt files in San Antonio. “We were told [by superiors] ‘We’re in a hurry. Go ahead and sign them.'”

[AMERICAN BANKER]

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Banks face crisis in bungled commercial mortgages

Banks face crisis in bungled commercial mortgages


Oh yes, MERS is in this rabbit hole as well: From a 10/10 post EXCLUSIVE | NYSC COMMERCIAL (CMBS), MERS and a $65 MILLION NOTE

If this doesn’t do them in then look for the Next Robo-Signing Scandal: RePOST: CHASE BANK v. GERGIS | NY Civ. Court “ROBO-TESTIMONY, WAMU, CREDIT-CARD DEBT” Dismissed w/ PREJUDICE

Either way the banks are screwed on these as well.

CBS-

The nation’s banks are looking at a robo-signing problem with commercial real estate which may dwarf the one for home mortgages, according to a new study.

Research by Harbinger Analytics Group shows the widespread use of inaccurate, fraudulent documents for land title underwriting of commercial real estate financing. According to the report:

This fraud is accomplished through inaccurate and incomplete filings of statutorily required records (commercial land title surveys detailing physical boundaries, encumbrances, encroachments, etc.) on commercial properties in California, many other western states and possibly throughout most of the United States.

[CBS NEWS]

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Lawsuit: Chase And Wells Fargo Overcharged Homeowners As Much As 300% On Mortgage Fees

Lawsuit: Chase And Wells Fargo Overcharged Homeowners As Much As 300% On Mortgage Fees


Business Insider-

Yet another class action suit with the potential to reap millions for consumers has been filed against a pair of the country’s biggest mortgage lenders.

This time, Wells Fargo and Chase have been fingered over allegedly deceptive mortgage default fee practices, law firm Baron and Budd announced. 

The suit claims the lenders charged homeowners over inflated fees once they began to fall behind on mortgage payments

[BUSINESS INSIDER]

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ARKANSAS Bankruptcy case causes title insurance companies to hit “pause”

ARKANSAS Bankruptcy case causes title insurance companies to hit “pause”


Read The BK Order: In Re: JOHNSON – Bank. EDArk – Chase/JP Morgan Chase – No access to Arkansas non-judicial f/c process if not authorized to do business in state

Arkasas Online-

LITTLE ROCK Many title insurance companies in Arkansas are refusing to issue policies in the sale of certain foreclosed-on properties, after a local U.S. Bankruptcy Court ruling in September called into question the validity of the homes’ titles. Sales …

[ARKANSAS ONLINE] subscription

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RePOST: CHASE BANK v. GERGIS | NY Civ. Court “ROBO-TESTIMONY, WAMU, CREDIT-CARD DEBT” Dismissed w/ PREJUDICE

RePOST: CHASE BANK v. GERGIS | NY Civ. Court “ROBO-TESTIMONY, WAMU, CREDIT-CARD DEBT” Dismissed w/ PREJUDICE


Note: This post went missing shortly after it was on the site back in June 2011 and IMO may be a clue as to why the recent massive halts nationwide, but in reality, this began last June :)

This is far worse than the foreclosure fraud robo-signing scandal and they do not want this to get out of control…it’ll spell doom.

I’d also like to point you to another case that they are aware of that deserves credit: “Robo-Affidavit” Class Action Settles for $5.2 Million | MIDLAND FUNDING v. BRENT

 Decided on June 15, 2011

Civil Court of The City of New York, Kings County


Chase Bank USA, N.A.

against

Shady A. Gergis

EXCERPTS:

UNDERLYING FACTS:

For its first witness, plaintiff called Martin Lavergne, who worked for CHASE BANK USA, N.A.(“Chase”) in various roles over a period of approximately 17 years. Presently, he holds the title of “custodian of records.” While Mr. Lavergne maintained that he had personal knowledge of the practices and procedures that Chase utilized in creating and maintaining consumer credit card account records, he never described these practices and procedures and never testified as to how he acquired personal knowledge of them.

[…]

Notably, some of the records that were shown to Mr. Lavergne were apparently created by Washington Mutual Bank. Mr. Lavergne explained this by stating that at some point in time, Chase had acquired Washington Mutual Bank. No testimony was elicited from Mr. Lavergne that he had worked for Washington Mutual Bank or that he had personal knowledge of the practices and procedures that Washington Mutual Bank employed in creating and maintaining consumer credit card account records.

[…]

Here, Mr. Lavergne’s foundational testimony was essentially a verbatim recitation of the statutory elements set forth in CPLR 4518[a]. He gave absolutely no testimony as to how the electronic records concerning defendant’s account statements came into existence nor did he indicate that he even knew how such information was collected. It would appear that credit card statements contain information that is conveyed from multiple entities, from the reporting merchant through various intermediaries, until the information is ultimately incorporated into plaintiff’s business records (see Discover Bank v Williamson, 2007 NY Slip Op 50231[U] [App Term, 9th and 10th Jud Dists]). Certainly, Mr. Lavergne did not demonstrate that the person or persons who inputted the electronic data had actual knowledge of the events inputted or that such person or persons obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events (see Corsi v Town of [*4]Bedford, 58 AD3d 225, 229 [2d Dept 2008]; Capasso v Kleen All of America, Inc., 43 AD3d at 1347).

[…]

Further, Mr. Lavergne’s testimony was highly suspect. As stated above, some of the records that plaintiff sought to introduce into evidence through the testimony of Mr. Lavergne were apparently prepared by Washington Mutual Bank. The foundational testimony given by Mr. Lavergne concerning these records was identical to the foundational testimony he gave concerning the Chase records. It is well settled law that in order for a witness to lay the foundation for the admission of a document as a business record pursuant to CPLR 4518[a], the witness must demonstrate personal knowledge of the business practices and procedures pursuant to which the document was made (see Reiss v Roadhouse Rest., 70 AD3d 1021, 1025 [2d Dept 2010]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007]; Vento v City of New York, 25 AD3d 329, 330 [1st Dept 2006]; Dayanim v Unis, 171 AD2d 579 [1st Dept 1991]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 51879[U] [App. Term, 2d & 11th Jud Dists]). Because Mr. Lavergne never worked for Washington Mutual Bank, it defies logic that he would have personal knowledge of Washington Mutual Bank’s business practices and procedures. For these reasons, the Court gives Mr. Lavergne’s “robo-testimony” and plaintiffs’ no weight or credit (People v Barrett, 14 AD3d 369 [1st Dept 2005]; see also Washington Mut. Bank v Phillip, 2010 NY Slip Op 52034[U] [Sup Ct, Kings County]).

[…]

In sum, the offered “robo-testimony” was insufficient to establish its case by a preponderance of the credible evidence. [*5]

Based on the above, it is hereby

ORDERED that judgment be entered in favor of defendant SHADY A. GERGIS and against plaintiff CHASE BANK USA, N.A. and that plaintiff’s complaint be DISMISSED with prejudice on the merits.

The foregoing constitutes the Decision and Order of the Court.

[ipaper docId=58601475 access_key=key-13b7jr4qpkf19xlbsusy height=600 width=600 /]

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In Re: JOHNSON – Bank. EDArk – Chase/JP Morgan Chase – No access to Arkansas non-judicial f/c process if not authorized to do business in state

In Re: JOHNSON – Bank. EDArk – Chase/JP Morgan Chase – No access to Arkansas non-judicial f/c process if not authorized to do business in state


United States Bankruptcy Court, E.D. Arkansas, Jonesboro Division.

In re DANIEL L. JOHNSON and SUSAN D. JOHNSON, Chapter 13 Debtors.
In re TAMMY R. PEEKS, Chapter 13 Debtor.
In re TRACY L. ESTES, Chapter 13 Debtor.

Case Nos. 3:10-bk-19119, 3:11-bk-10602, 3:10-bk-16541


September 28, 2011.

MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS TO CONFIRMATION

AUDREY R. EVANS, Bankruptcy Judge

In a consolidated hearing on July 14, 2011, the Court heard the Objection to Confirmation of Plan filed by Chase Home Finance, L.L.C. (“Chase”) in the case of Daniel and Susan Johnson, Case No. 3:10-bk-19119 (the “Johnson Objection to Confirmation”); the Objection to Confirmation of Plan filed by J.P. Morgan Chase Bank, N.A. (“J.P. Morgan”) in the case of Tammy Renae Peeks, Case No. 3:11-bk-10602 (the “Peeks Objection to Confirmation”); and the Objection to Confirmation of Plan filed by Chase in the case of Tracy L. Estes, Case No. 3:10-bk-16541 (the “Estes Objection to Confirmation”) (collectively the “Objections to Confirmation”). J.P. Morgan appeared through its counsel, Kimberly Burnette of Wilson & Associates, P.L.L.C.[1] The Debtors in all three cases were represented at the hearing by Joel Hargis of Crawley & DeLoache, P.L.L.C. Kathy A. Cruz of The Cruz Law Firm, P.L.L.C., also appeared as co-counsel for the Debtor, Tracy L. Estes. At the outset of the hearing, the parties agreed that the facts of the cases were not in dispute, and that the same underlying issue of law was present in each case. For that reason, the hearings were consolidated. The Court accepted evidence and heard the arguments of counsel.[2] At the close of the hearing, the Court took the matter under advisement.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Order shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule of Procedure 7052. To the extent that any finding of fact is construed as a conclusion of law, it is adopted as such; to the extent that any conclusion of law is construed as a finding of fact, it is adopted as such. As explained herein, the Court overrules the Objections to Confirmation.

FACTS

The parties stipulated that at the time of the foreclosure proceedings at issue in these cases, neither Chase nor J.P. Morgan was “authorized to do business” in the state of Arkansas as required by § 18-50-117 of the Arkansas Statutory Foreclosure Act of 1987, Ark. Code Ann. §§ 18-50-101, et seq. (the “Statutory Foreclosure Act”). Additionally, the Court finds the following to be the facts of each case:

The Johnson Case

Chase initiated non-judicial foreclosure proceedings, through Arkansas’ Statutory Foreclosure Act, against a property owned by Daniel and Susan Johnson. On December 20, 2010, the Johnsons filed a Chapter 13 bankruptcy bringing that non-judicial foreclosure to a halt. In their bankruptcy case, the Johnsons filed a Chapter 13 plan listing Chase as a long-term secured creditor that was owed an arrearage of $7,485. On March 2, 2011, Chase filed the Johnson Objection to Confirmation claiming that the correct arrearage amount was $14,072.81. Chase filed a proof of claim in the case (the “Johnson Proof of Claim”) claiming a secured debt of $187,468.21, which included the $14,072.81 arrearage, and explained that $1,380 of the arrearage was for foreclosure fees and costs. On July 4, 2011, Chase transferred the Johnson Proof of Claim to J.P. Morgan.

The Peeks Case

J.P. Morgan initiated a non-judicial foreclosure proceeding, through Arkansas’ Statutory Foreclosure Act, against property owned by Tammy Renae Peeks. To initiate the foreclosure process, J.P. Morgan granted Wilson & Associates, P.L.L.C. (“Wilson & Associates”) a limited power of attorney authorizing Wilson & Associates to conduct the foreclosure.[3] On January 31, 2011, Ms. Peeks filed a Chapter 13 bankruptcy bringing the non-judicial foreclosure to a halt. On February 10, 2011, Ms. Peeks filed a proposed Chapter 13 plan that listed J.P. Morgan as a long-term secured creditor that was owed an arrearage of $7,500. On March 21, 2011, J.P. Morgan filed the Peeks Objection to Confirmation asserting that the correct arrearage amount was $10,089.19. J.P. Morgan filed a proof of claim in the Peeks case on July 13, 2011 (the “Peeks Proof of Claim”) claiming a secured debt of $133,172.09, which included an arrearage of $9,516.72, and explained that $2,400.02 of the arrearage was for foreclosure fees and costs.

The Estes Case

Chase initiated non-judicial foreclosure proceedings, through Arkansas’ Statutory Foreclosure Act, against a property owned by Tracy L. Estes. On September 8, 2010, Ms. Estes filed a voluntary petition for bankruptcy under Chapter 13, bringing that non-judicial foreclosure to a halt. On September 21, 2010, Ms. Estes filed a proposed Chapter 13 plan listing Chase as a long-term secured creditor that was owed an arrearage of $8,000. Chase filed the Estes Objection to Confirmation on October 20, 2010, asserting that the correct arrearage amount was $10,537.36. Chase filed a proof of claim in the Estes case on October 28, 2010 (the “Estes Proof of Claim”), claiming a secured debt of $37,041.96, which included an arrearage of $10,509.36, and explained that $2,706.56 of the arrearage was for to foreclosure fees and costs. On May 25, 2011, Chase filed an amended proof of claim adjusting the arrearage from $10,509.36 to $10,502.22. On July 14, 2011, Chase transferred the Estes Proof of Claim to J.P. Morgan.

DISCUSSION

The question before the Court is whether the Debtors owe J.P. Morgan the foreclosure fees and costs listed on its proofs of claims. The Bankruptcy Code allows a debtor in a Chapter 13 bankruptcy case to cure a default on a debt for its home mortgage through the plan. 11 U.S.C. §§ 1322(b)(3), (5). In order for that plan to be confirmed, a debtor must pay the default arrearage amount in full. The amount owed in order to cure a default is “determined in accordance with the underlying agreement and applicable nonbankruptcy law.” 11 U.S.C. § 1322(e). This determination poses two separate inquires: first, what fees and costs are allowed by the agreement between the parties, and second, what fees and costs are allowed by the applicable law. See In re Bumgarner, 225 B.R. 327, 328 (Bankr. D.S.C. 1998).

In these cases, there is no dispute that the foreclosure fees and costs are owed under the parties’ agreements because the instrument used to create each debt gives J.P. Morgan “the right to be paid back by me for all of its costs and expenses in enforcing this Note . . . .” The only question in each of these three cases is whether the foreclosure fees and costs are allowed by the controlling law. The controlling law is Arkansas’ Statutory Foreclosure Act (i.e., Arkansas’ non-judicial foreclosure procedure), and the issue is whether J.P. Morgan was qualified to use Arkansas’ non-judicial foreclosure procedure when it initiated the foreclosure proceedings against these Debtors.

The Debtors argue that J.P. Morgan was not qualified to use the non-judicial foreclosure process because § 18-50-117 of the Statutory Foreclosure Act requires an entity to be authorized to do business in Arkansas, and that J.P. Morgan was not in compliance with that requirement.

J.P. Morgan stipulated that it was not authorized to do business as is required Ark. Code Ann. § 18-50-117. Nonetheless, it maintains that it was qualified to use Arkansas’ non-judicial foreclosure process. J.P. Morgan makes three arguments in support of its position. First, J.P. Morgan argues that its compliance with § 18-50-102 of the Statutory Foreclosure Act enabled it to legitimately employ the non-judicial foreclosure process without being authorized to do business in the state as required by Ark. Code Ann. § 18-50-117. Second, J.P. Morgan argues that the authorized-to-do-business requirement is superseded by a conflicting provision in Arkansas’ Wingo Act, Ark. Code Ann. § 4-27-1501, and finally, that it is preempted by federal law through the provisions of the National Banking Act.

For the reasons discussed below, the Court finds that J.P. Morgan was not qualified to use the Arkansas non-judicial foreclosure process when it initiated the foreclosures against these Debtors. J.P. Morgan failed to comply with the authorized-to-do-business requirement of Ark. Code Ann. § 18-50-117, and nothing in Ark. Code Ann. § 18-50-102, the Wingo Act, or the National Banking Act allowed it to conduct those proceedings without meeting that requirement. Absent compliance with Ark. Code Ann. § 18-50-117, J.P. Morgan’s avenue for foreclosing on these properties was that of judicial foreclosure through the courts, not through Arkansas’ non-judicial foreclosure process. As a result, the foreclosure fees and costs incurred by Chase and J.P. Morgan are not owed by the Debtors, and need not be included in the Debtors’ repayment plans in order for those plans to be confirmed.

Finally, both parties request their attorney fees for pursuing or defending these matters. The Court finds that an award of attorney fees to the Debtors is warranted.

The Statutory Foreclosure Act

In 1987, the Arkansas legislature enacted the Statutory Foreclosure Act, which authorized the use of non-judicial foreclosure proceedings as an alternative to judicial foreclosure proceedings. Ark. Code Ann. §§ 18-50-101, et seq. See also Union Nat’l Bank v. Nichols, 305 Ark. 274, 278, 807 S.W.2d 36, 38 (1991) (“The procedure is designed to be effectuated without resorting to the state’s court system . . . .”). These statutory provisions must be strictly construed. See Robbins v. M.E.R.S., 2006 WL 3507464, at *1 (Ark. Ct. App. 2006) (“It is also true that the Arkansas Statutory Foreclosure Act, being in derogation of common law, must be strictly construed.”).[4]

The parties’ arguments are based on two provisions of the Statutory Foreclosure Act; Ark. Code Ann. § 18-50-117 and Ark. Code Ann. § 18-50-102. Each of these two provisions places a restriction on who can use Arkansas’ non-judicial foreclosure process. The first provision, Ark. Code Ann. § 18-50-117, requires a creditor to be authorized to do business in Arkansas before employing the state’s non-judicial foreclosure process. Ark. Code Ann. § 18-50-117 (“No person, firm, company, association, fiduciary, or partnership, either domestic or foreign shall avail themselves of the procedures under this chapter unless authorized to do business in this state.”) (emphasis added).[5] The second provision, Ark. Code Ann. § 18-50-102, limits who can be a party to a non-judicial foreclosure proceeding to three categories of persons or entities: (1) trustees or attorneys-in-fact, (2) financial institutions, and (3) Arkansas state agencies. See Ark. Code Ann. § 18-50-102.[6] Further, this provision requires that in order to qualify, a “trustee or attorney-in-fact” must be a licensed member of the Arkansas bar, or a law firm who employs a licensed member of the Arkansas bar. Ark. Code Ann. § 18-50-102(a)(1).

The Debtors argued that J.P. Morgan was not qualified to use the non-judicial foreclosure process because § 18-50-117 of the Statutory Foreclosure Act requires an entity to be authorized to do business in Arkansas, and J.P. Morgan stipulated that it was not in compliance with that provision. J.P. Morgan argued that it was not required to comply with Ark. Code Ann. § 18-50-117 because it authorized Wilson & Associates to conduct the foreclosures as its attorney-in-fact, pursuant to Ark. Code Ann. § 18-50-102(a)(1). This argument extends in two directions.[7]

Specifically, one extension of J.P. Morgan’s argument is that when the attorney-in-fact category of § 18-50-102 is used, the authorized-to-do-business requirement of § 18-50-117 does not apply. The Court finds no support for this argument. The language of Ark. Code Ann. § 18-50-117 is broad, specifically stating that it is applicable to every “person, firm, company, association, fiduciary, or partnership, either domestic or foreign . . . .” An emergency clause recorded in the sessions laws of Ark. Code Ann. § 18-50-117 explains the reason that the provision was enacted:

It is found and determined by the General Assembly of the State of Arkansas that foreign entities not authorized to do business in the State of Arkansas are availing themselves to [sic] the provisions of the Statutory Foreclosure Act of 1987; that often times it is to the detriment of Arkansas citizens; and that this act is immediately necessary because these entities should be authorized to do business in the State of Arkansas before being able to use the Statutory Foreclosure Act of 1987.
2003 Ark. Acts 1303, § 3, effective Apr. 14, 2003. The broad language of this provision, and the clear concerns set out in the legislative history, indicate that Ark. Code Ann. § 18-50-117 was meant to apply without regard to which category of person or entity is conducting the foreclosure under Ark. Code Ann. § 18-50-102.

Further, the Court finds nothing in the language of Ark. Code Ann. § 18-50-102 to indicate that it eliminates the need to comply with the authorized-to-do-business requirement of Ark. Code Ann. § 18-50-117, or that the attorney-in-fact party should be treated in any way different from the other categories of persons or entities allowed to conduct a non-judicial foreclosure proceeding. Further, the most recent enactment of Ark. Code Ann. § 18-50-102, now in effect, places several additional requirements on an attorney-in-fact before he can qualify as a party to a non-judicial foreclosure proceeding. In addition to the requirement that the attorney-in-fact be licensed in Arkansas (which was the law at the time of these foreclosure proceedings), an attorney-in-fact must now also have an office located in Arkansas, be accessible during business hours, and be able to accept funds as payment on the subject mortgage. See 2011 Ark. Acts 901, § 2, effective July 27, 2011. These recent additional restrictions to the attorney-in-fact qualification provide further evidence of the Arkansas legislature’s intent to limit access to the Statutory Foreclosure Act, not to further broaden access to that process as J.P. Morgan’s argument would necessarily require.

A second extension of J.P. Morgan’s argument is that, even if Ark. Code Ann. § 18-50-117 applies, J.P. Morgan satisfied the authorized-to-do-business requirement because its attorney-in-fact, Wilson & Associates, satisfied that requirement. This argument also fails. The procedures for appointing an attorney-in-fact to conduct the foreclosure are self-contained within the § 18-50-102 of the Statutory Foreclosure Act. This appointment is accomplished through the use of a power of attorney. Ark. Code Ann. § 18-50-102(e) (“The appointment of an attorney-in-fact by a mortgagee shall be made by a duly executed, acknowledged, and recorded power of attorney . . . .”). That power of attorney provides the attorney-in-fact only with those powers held by the appointing mortgagee. Ark. Code Ann. 18-50-102(d) (“A mortgagee may delegate his or her powers and duties under this chapter to an attorney-in-fact, whose acts shall be done in the name of and on behalf of the mortgagee.”) (emphasis added).

J.P. Morgan appointed Wilson & Associates as its attorney-in-fact through a limited power of attorney. Wilson & Associates did not initiate the foreclosure proceedings on its own behalf, but initiated those proceedings “in the name of and on behalf of” J.P. Morgan. It is J.P. Morgan’s compliance with the authorized-to-do-business requirement that is relevant, not that of Wilson & Associates. Thus, the Court finds that J.P. Morgan’s compliance with Ark. Code Ann. § 18-50-102 by electing to use an attorney-in-fact did not, by substitute, afford it compliance with the authorized-to-do-business requirement in Ark. Code Ann. § 18-50-117.

Therefore, J.P. Morgan has failed to show that its compliance with § 18-50-102 of the Statutory Foreclosure Act enabled it to legitimately employ the non-judicial foreclosure process without being authorized to do business in the state.

The Wingo Act

J.P. Morgan argues that a conflict between the Wingo Act (Ark. Code Ann. §§ 4-27-1501, et seq.), and the Statutory Foreclosure Act (Ark. Code Ann. §§ 18-50-101, et. seq.), allows J.P. Morgan to conduct non-judicial foreclosures without complying with the authorized-to-do-business requirement found in § 18-50-117 of the Statutory Foreclosure Act.

The Wingo Act is a sub-provision of the Arkansas Business Corporation Act, found at Ark. Code Ann. §§ 4-27-101, et seq. The Wingo Act states that “[a] foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.” Ark. Code Ann. § 4-27-1501(a). However, the Wingo Act also contains a non-exhaustive list of actions that do not constitute transacting business. Ark. Code Ann. § 4-27-1501(b). This list includes, among other things, the acts of “[m]aintaining, defending, or settling any proceeding[,]” and “[s]ecuring or collecting debts or enforcing mortgages and security interests in property securing the debts[.]” Ark. Code Ann. §§ 4-27-1501(b)(1), (8).

J.P. Morgan asserts that a conflict exists between the Wingo Act and the Statutory Foreclosure Act because the Wingo Act does not require a creditor to be authorized to do business in order to collect on its debt; the Statutory Foreclosure Act does. J.P. Morgan argues that the Wingo Act controls this conflict, and thus, the authorized-to-do-business requirement of the Statutory Foreclosure Act does not apply.

It is a well-settled principle of construction that where two statutes conflict, the more specific statutory provision controls. See Ozark Gas Pipeline Corp. v. Arkansas Public Service Comm’n, 342 Ark. 591, 602, 29 S.W.3d 730, 736 (2000) (“The rule is well settled that a general statute must yield when there is a specific statute involving the particular matter.”). The exclusions afforded in the Wingo Act address the broad category of “[s]ecuring or collecting debts or enforcing mortgages and security interests . . . .” Ark. Code Ann. § 18-27-1501(b)(8). The Statutory Foreclosure Act, on the other hand, deals with a specific type of collection activity — foreclosure — and an even more specific type of foreclosure — non-judicial foreclosure. Given the greater specificity of Ark. Code Ann. § 18-50-117, the Court finds that the Statutory Foreclosure Act provision carves out the specific statutory procedure of non-judicial foreclosure from the broad category of collecting debts, and as a result, controls any conflict between the two provisions.

Further, J.P. Morgan’s argument ignores the other provisions of the Wingo Act . The provision immediately following the exclusionary provision states that the consequence of transacting business without a certificate of authority is: (1) the foreign corporation is prohibited from maintaining a cause of action in the state courts, and (2) the foreign corporation must pay a monetary penalty. Ark. Code Ann. §§ 4-27-1502(a), (d)(1)(A).[8] As such, the exclusions allowed by § 4-27-1501(b) of the Wingo Act enable a foreign corporation to conduct some activities (including collection activities) without being subject to the consequences found in § 4-27-1502. In other words, under the Wingo Act, a foreign corporation can bring a cause of action in the Arkansas courts in furtherance of its collection activities, without a certificate of authority and without being subject to monetary penalty. This, however, is the full effect of the Wingo Act’s exclusionary provision. While it is true that J.P. Morgan was not required to obtain a certificate of authority in order to collect on its debts in Arkansas under the Wingo Act, it was required to do so if it wanted to employ Arkansas’ non-judicial foreclosure process. J.P. Morgan’s extension of the Wingo Act exclusions to the Statutory Foreclosure Act is far too broad.

Finally, during the hearing, J.P. Morgan argued that Omni Holding and Development Corp. v. C.A.G. Investments, Inc., 370 Ark. 220, 258 S.W.3d 374 (2007), establishes authority for its position. In Omni, a creditor filed a lawsuit against Omni seeking a judgment on its promissory note and claiming that Omni had committed an unlawful detainer of its property. In response, Omni claimed the creditor lacked standing because it did not have a certificate of authority. The Arkansas Supreme Court held that the creditor did not need a certificate of authority because its actions fell within the Wingo Act exclusion for collection activities. See Omni Holding and Development Corp., 370 Ark. at 226. Consistent with the Court’s determination above, the holding in Omni only stands for the proposition that a creditor can file a lawsuit in furtherance of collection activities without a certificate of authority. Id. (“Thus, C.A.G. was not `transacting business’ in Arkansas and its failure to obtain a certificate of authority did not prevent C.A.G. from filing suit in the state.”) (emphasis added). Under the Wingo Act exclusions, J.P. Morgan was allowed to foreclose on these properties through a judicial foreclosure action in the state court, but it was prohibited from using the state’s non-judicial foreclosure process. Omni does not support J.P. Morgan’s argument.

Therefore, the Court finds that no conflict exists between the Wingo Act and the Statutory Foreclosure Act, and to the extent that any conflict is present the more precise provision of the Statutory Foreclosure Act controls.

The National Banking Act

Finally, J.P. Morgan maintains that federal legislation preempts the requirement in Arkansas’ Statutory Foreclosure Act that a bank be authorized to do business in Arkansas before it employs the state’s non-judicial foreclosure process.

The federal law presented as having preemptive authority in this case is the National Banking Act (“NBA”). A brief review of the text, history, and purpose of the NBA is essential to the task of analyzing its preemptive effect. In 1864, Congress placed into law an act that established a national banking system. An Act to Provide a National Currency Secured by a Pledge of United States Bonds, and to Provide for the Circulation and Redemption Thereof, ch. 106, 13 Stat. 99 (1864) (codified as amended at 12 U.S.C. §§ 1 et seq.). Today, that system of laws remains largely intact, and has been renamed the National Banking Act. 12 U.S.C. § 38. See also Watters v. Wachovia Bank, N.A., 550 U.S. 1, 10-11, 127 S.Ct. 1559, 1566, 167 L.Ed.2d 389 (2007). The purpose of the national banking act is to prevent the “[d]iverse and duplicative superintendence of national banks” by the differing laws of the individual states. Watters, 550 U.S. at 13-14. See also Easton v. State of Iowa, 188 U.S. 220, 229, 23 S.Ct. 288, 290, 47 L.Ed. 452 (1903) (describing the goal of the NBA as “the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the states.”).

Preemption occurs under Article VI of the Constitution, the Supremacy Clause, which provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A determination of whether a state law is preempted by federal law “start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). A determination as to the congressional purpose of a law is the “ultimate touchstone” of any preemption analysis. Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963); Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 1107 (1996) (“This question is basically one of congressional intent. Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State? If so, the Supremacy Clause requires courts to follow federal, not state, law.”).

Congressional intent to preempt a state law is typically derived from the language, structure, or purpose of the federal statute. See Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). Accordingly, preemption is classified into three different categories: express preemption, field preemption, and conflict preemption. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983). See also Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008).

Express preemption exists where Congress’s intent to preempt the state law is clearly stated in the language of the federal statute. See Pacific Gas & Elec. Co., 461 U.S. at 203. However, more often than not, Congress does not make such an explicit manifestation of its intent. See Watters v. Wachovia Bank, N.A., 550 U.S. 1, 33, 127 S.Ct. 1559, 1579, 167 L.Ed.2d 389 (2007) (Stevens, J., dissenting). In the absence of such an explicit expression, the courts must determine whether the statutory provision implies a preemptive intent by evaluating the structure and purpose of the statute. See Barnett Bank of Marion County, N.A., v. Nelson, 517 U.S. 25, 32, 116 S.Ct. 1103, 1108, 134 L.Ed.2d 237 (1996). These implied forms of preemption are referred to as field preemption and conflict preemption, respectively. Id. Field preemption exists if the structure of the statute represents a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. at 230. Alternatively, conflict preemption exists where the purpose of the federal law conflicts with the state law. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981) (“It is basic to this constitutional command that all conflicting state provisions be without effect.”). Conflict preemption arises under two different scenarios. The first scenario, referred to as physical impossibility preemption, is when it is physically impossible to comply with both the federal law and the state law at the same time. See Pacific Gas & Elec. Co., 461 U.S. at 204; In re Bate, 2011 WL 2473493, at *2-4 (Bankr. M.D. Fla. June 22, 2011). The second scenario, referred to as obstacle preemption, is when the “state law stands as an obstacle to achieving the objectives of Congress.” Id.

In these cases, there is no real question that express preemption does not apply. There is no specific provision in the NBA clearly stating a congressional intent to preempt state laws regarding non-judicial foreclosure, or moreover, state laws requiring a person or entity to be authorized to do business in the state before employing the non-judicial foreclosure process. Thus, the NBA does not expressly preempt the authorized-to-do-business requirement of the Statutory Foreclosure Act.

Field preemption is also inapplicable. The Supreme Court has specifically identified the activities of the “acquisition and transfer of property,” and the “right to collect their debts,” as areas where banks are generally subject to state law. Watters, 550 U.S. at 11; McClellan, 164 U.S. at 357. Additionally, regulations promulgated by the Office of the Comptroller of Currency (the “OCC”) save certain areas of state law from general preemption by the NBA.[9] See Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 282 (6th Cir. 2009). Those regulations state that state laws on the subjects of the “rights to collect debts[,]” and the “[a]cquisition and transfer of property[,]” are not inconsistent with the national bank’s real estate lending powers, provided those state laws only “incidentally affect” the bank’s exercise of its powers. 12 C.F.R. §§ 34.4, 7.4007(c), 7.4008(e). The collection of debts and transfers of property are the specific types of activities dealt with by the state law in question, the Statutory Foreclosure Act. Thus, the Court is not persuaded that the NBA’s occupation of these areas is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” As a result, field preemption does not apply.

As previously mentioned, conflict preemption is found in two different forms: physical impossibility preemption and obstacle preemption. The first of these types, physical impossibility preemption, is not present in this case. It is not “physically impossible” for J.P. Morgan to comply with the requirements of both the NBA and the authorized-to-do-business requirement of the Statutory Foreclosure Act. Such a scenario might exist if, for example, a provision of the NBA prohibited national banks from being certified to transact business within a state. It might then be physically impossible for J.P. Morgan to comply with both the NBA’s requirement and the authorized-to-do-business requirement of the Statutory Foreclosure Act. However, no such provision is found in the NBA, and as a result, physical impossibility preemption does not apply.

The remaining determination is whether obstacle preemption applies. This determination turns on whether the authorized-to-do-business requirement of the Statutory Foreclosure Act “stands as an obstacle to achieving the objectives of Congress.” Pacific Gas & Elec. Co., 461 U.S. at 204. A state law stands as an obstacle to a federal law when it significantly interferes with the objectives of that federal law. Barnett, 517 U.S. at 33; Watters, 550 U.S. at 12. As previously stated, Congress’s objective in creating the NBA was to prevent the”[d]iverse and duplicative superintendence of national banks” by the differing laws of the individual states. In order to accomplish that objective, the NBA vests national banks with certain enumerated powers. 12 U.S.C. § 24.[10] Those enumerated provisions provide national banks with “all such incidental powers as shall be necessary to carry on the business of banking . . . .” 12 U.S.C. § 24 (Seventh). Additionally, Congress has given national banks the authority to “make, arrange, purchase or sell loans or extensions of credit secured by liens on interest in real estate . . . .” 12 U.S.C. § 371. See also Watters, 550 U.S. at 18 (stating that mortgage lending is one aspect of the “business of banking”).

The question is whether the burden of the requirement that a bank be authorized to do business in Arkansas before using the non-judicial foreclosure process significantly impairs the bank’s ability to conduct its business of banking, which includes its rights to hold and enforce mortgage liens. The Court finds that it does not. Obviously, the Statutory Foreclosure Act requirement places some measure of burden on a national bank holding a mortgage on property in Arkansas if it wants to foreclose on that property through the state’s non-judicial foreclosure process. However, a bank’s failure (or refusal) to comply with the Statutory Foreclosure Act requirement leaves the bank with the option of foreclosing on a property through the state’s judicial process. On that point, the Statutory Foreclosure Act specifically states that “[t]he procedures set forth in this chapter for the foreclosure of a mortgage or deed of trust shall not impair or otherwise affect the right to bring a judicial action to foreclose a mortgage or deed of trust.” Ark. Code Ann. § 18-50-116(a). While this alternative method of collection (judicial foreclosure) may not be as efficient as the non-judicial foreclosure process, the Court finds that it does not significantly impair the bank’s ability to collect on its debt.[11]

Moreover, the process of judicial foreclosure is available in all states, while only approximately 60 percent of the states allow non-judicial foreclosures. See Grant S. Nelson, Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act, 53 Duke L.J. 1399, 1403 (2004).[12] J.P. Morgan’s contention that the provisions of the NBA are significantly impaired by the authorized-to-do-business requirement is undermined by the fact that only slightly more than half of the states authorize such a procedure at all. The Court finds that the powers conferred to J.P. Morgan under the NBA are not significantly impaired by the Statutory Foreclosure Act’s requirement that J.P. Morgan be authorized to do business in Arkansas, and as a result, conflict preemption does not apply.

For the foregoing reasons, the Court finds that the Statutory Foreclosure Act’s requirement that a person or entity be authorized to do business in the state is not preempted by the NBA. As a result, the Court finds that J.P. Morgan was not in compliance with the Statutory Foreclosure Act, and that the Debtors do not owe, nor must they pay, J.P. Morgan for any fees and costs incurred through the non-judicial foreclosure proceedings conducted against these Debtors.

Attorney Fees

Both parties have asked for an award of attorney fees. As a general rule, known as the “American rule,” the parties to litigation must pay their own attorney fees. In re Hunter, 203 B.R. 150, 151 (Bankr. W.D. Ark. 1996). However, certain exceptions to this rule exist, one of which is found in Ark. Code Ann. § 16-22-308, which states,

In any civil action to recover on an open account, statement of account, account stated, promissory note, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
Ark. Code Ann. § 16-22-308. Under Arkansas law, an award of prevailing party attorney fees under this statute are permissive and discretionary. In re Cameron, No. 4:10-bk-14987, 2011 WL 1979503, at *6 (Bankr. E.D. Ark. May 17, 2011).

This action was brought by the Debtors to determine whether they owed the foreclosure fees and costs incurred by J.P. Morgan in conducting non-judicial foreclosure proceedings on its promissory notes. The Debtors are the prevailing party in these matters, and as such, the Court awards the Debtors a reasonable amount for their attorney fees. Counsel for the Debtors shall submit a separate application for those fees to the Court, as further ordered below.

CONCLUSION

For the foregoing reasons, the Court concludes that J.P. Morgan was not in compliance with the authorized-to-do-business requirement of the Statutory Foreclosure Act when it conducted the foreclosures against these Debtors. Additionally, the Court has determined that J.P. Morgan’s failure to comply with Ark. Code Ann. § 18-50-117 was not cured by empowering an attorney-in-fact under Ark. Code Ann. § 18-50-102, was not superceded by the Wingo Act, and was not preempted by the National Banking Act. As a result, the foreclosure fees and costs incurred by Chase and J.P. Morgan are not owed by the Debtors, and need not be included in the Debtors’ repayment plans in order for those plans to be confirmed.

Further, the Court has determined that the Debtors should be awarded their attorney fees incurred in pursuing these actions.

Therefore, it is hereby

ORDERED that the Objections to Confirmation are OVERRULED; it is further,

ORDERED that the Defendant shall pay the reasonable attorney fees incurred by the Debtors in pursuing these actions. The Court will determine the amount of this award on further application by Debtors’ Counsel, which shall include an itemization of the attorney fees incurred in these actions. This application must be filed with the Court within 14 days of the entry of this Order, and shall be served on Counsel for J.P. Morgan. J.P. Morgan shall have 14 days from the date that fee application is filed with the Court in which to file a response, should it wish to do so.

IT IS SO ORDERED.

[1] Although the objections to confirmation were filed by two separate creditors, J.P. Morgan and Chase, as of the date of the hearing all of the claims at issue in this matter had been transferred to J.P. Morgan.

[2] The Court also takes judicial notice of all filings and records in these cases, including the proofs of claim. See Fed. R. Evid. 201; In re Henderson, 197 B.R. 147, 156 (Bankr. N.D. Ala. 1996) (“The court may take judicial notice of its own orders and of records in a case before the court, and of documents filed in another court.”) (citations omitted); see also In re Penny, 243 B.R. 720, 723 n.2 (Bankr. W.D. Ark. 2000).

[3] J.P. Morgan only presented the limited power of attorney filed in the property records for the Peeks case, but J.P. Morgan’s counsel represented to the Court that a similar limited power of attorney was granted and recorded in the property records for each of the three cases.

[4] The Court notes that counsel for the Debtors argued that a determination that the statute had been violated would make any sale under the Statutory Foreclosure Act void ab initio. No property sales actually resulted from the foreclosure proceedings in these cases. The sole dispute in these cases is whether the foreclosure fees and costs incurred through use of Arkansas’ non-judicial foreclosure process are owed.

[5] The Court notes that no explanation is provided by the statute regarding what action is required in order to be authorized to do business under Ark. Code Ann. § 18-50-117. Following a review of other provisions within the Arkansas Code, it appears that this requirement generally demands that a party obtain a certificate of authority from the secretary of state. See Ark. Code Ann. § 23-48-1003 (“A certificate of authority authorizes the out-of-state bank to which it is issued to transact business in the state . . . .”); Ark. Code Ann. § 4-27-1501 (“A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.”). However, no such determination is necessary in these cases because J.P. Morgan stipulated that it was not so authorized.

[6] J.P. Morgan did not argue that it met the requirements of the Statutory Foreclosure Act because it was a “financial institution.” Nonetheless, the Court notes that even if J.P. Morgan qualified as a financial institution under Ark. Code Ann. § 102, it would still be required to comply with the fundamental statutory requirement of Ark. Code Ann. § 18-50-117 for the same reasons discussed herein with regard to its use of an attorney-in-fact.

[7] J.P. Morgan did not provide the Court with the analytical extensions needed to support its argument. As a result, the Court has analyzed all possible extensions of that argument, which include (1) that because J.P. Morgan authorized an attorney-in-fact to conduct the foreclosure, Ark. Code Ann. § 18-50-117 did not apply, or (2) that because J.P. Morgan authorized Wilson & Associates to conduct the foreclosure it satisfied the requirement of Ark. Code Ann. § 18-50-117.

[8] Ark. Code Ann. § 04-27-1502 is titled the “[c]onsequences of transacting business without authority,” and states that:

(a) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.

. . .

(d)(1)(A) A foreign corporation that transacts business in this state without a certificate of authority shall pay a civil penalty to the state for each year and partial year during which it transacts business in this state without a certificate of authority.

Ark. Code Ann. § 4-27-1502.

[9] In many cases, the OCC regulatory interpretations are entitled to substantial deference, commonly known as Chevron deference. Investment Co. Institute v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (“It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.”).

[10] J.P. Morgan did not direct the Court to any specific provision of the NBA to support its argument that the authorized-to-do-business requirement creates an obstacle to achieving Congress’s objectives. Nonetheless, the Court’s review of the NBA has identified several powers granted to national banks that extend to such an argument.

[11] The Court also notes that all a national bank must do in order to meet the requirements of Ark. Code Ann. § 18-50-117 is become authorized to do business in the state.

[12] A list of the types of foreclosure allowed by each state is available at http://www.realty trac.com/foreclosure-laws/foreclosure-laws-comparisons.asp (last visited Sept. 12, 2011).

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A mortgage dispute with a twist

A mortgage dispute with a twist


When the banks get trapped and can’t get out of the hole, all they have to do is rely on MERS because 20,000+ Certified robo-signers Officers can sign, assign, release, satisfy any paperwork they want!

BTW, Whitney K. Cook is an employee of Chase Home Finance, located in Franklin County, OH.

My San Antonio-

In a strange twist in the ongoing saga of shoddy recordkeeping surrounding mortgage documents, Chase bank last month sued a San Antonio couple because they were mistakenly released from having to make any more house payments — nine years ago.

Chase filed suit in U.S. District Court in San Antonio last month against Ramiro and Delia Guerrero Jr. to rescind a mortgage-lien release recorded in 2002. The bank also wants the mortgage declared valid so the couple will have to resume making payments.

.
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California Artist Sells “Chase Burning” Painting for Whopping $25,200 on EbAY!

California Artist Sells “Chase Burning” Painting for Whopping $25,200 on EbAY!


Congratulations Alex!

You can read about this controversial painting HERE.

If you’re not a Not a Chase fan, Alex has also listed a Bank of America painting as well, you can find HERE.


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Please support your local artist…”Fire Sale”

Please support your local artist…”Fire Sale”


UPDATE 9/7:

California Artist Sells “Chase Burning” Painting for Whopping $25,200 on EbAY!

.

Alex Schaefer:

[Chase bank, painting en plein air, and the LAPD]

I started another burning bank painting today, this time the Chase branch in Van Nuys.

If you like, you can also visit his online ebay auction of his painting, oil on canvas, 22 by 28. UPDATE: Not a Chase fan, Alex has also  listed a Bank of America painting as well, you can find HERE.

I think this painting is really touching a nerve so I’m putting it up for auction.   It’s getting a lot of publicity which I’m very excited about!  It started out as a simple urban landscape painting for a series of artworks depicting banks on fire.  But then after a few hours the police arrived and took my information inquiring as to whether I was a terrorist.

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OUTRAGEOUS | How Chase Ruined Lives of People Who Paid Off Their Mortgages

OUTRAGEOUS | How Chase Ruined Lives of People Who Paid Off Their Mortgages


Yves Smith-

Once you read the allegations in the cases included in this post, I strongly suspect you will agree that the “ruining lives” in the headline is not an exaggeration. And as important, these two cases, with very similar fact sets, also suggest that these abuses are not mere “mistakes”. These are clearly well established practices that Chase can’t be bothered to clean up, since cleaning them up costs money and letting them continue is more profitable.

Both cases took place in Alabama. In both cases, the borrowers had made every mortgage payment on time. One was a couple with three children, the Barnetts. The second is a widow, Besty Barlow, but her husband was still alive when this ugly saga started.

[NAKED CAPITALISM]

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When banks voluntarily do principal reductions

When banks voluntarily do principal reductions


2 Things come to mind immediately:

  1. Seek the advice of a knowledgeable attorney before executing any *new* terms on a contract
  2. Make sure they really own it

FELIX SALMON-

The holy grail of mortgage modification is principal reduction — the only thing which gets homeowners out of negative equity hell. And one of the big questions is why it’s not more common: it seems to make sense for all concerned, given that a sensibly modified mortgage is likely to be much more profitable for a bank than forcing a homeowner into a short sale or foreclosure and trying to sell off the home in the current market.

Last week the NYT, in a front-page story, found that Chase is actually doing principal reductions — quietly, on some of the most toxic mortgages written during the subprime bubble. But the mechanism was very mysterious — for one thing, the principal reductions were being done on many mortgages which were actually current and in good standing, rather than on mortgages which were careening towards foreclosure.

Continue reading [REUTERS]

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CHASE BANK v. GERGIS | NY Civ. Court “ROBO-TESTIMONY, WAMU, CREDIT-CARD DEBT” Dismissed w/ PREJUDICE

CHASE BANK v. GERGIS | NY Civ. Court “ROBO-TESTIMONY, WAMU, CREDIT-CARD DEBT” Dismissed w/ PREJUDICE


Decided on June 15, 2011

Civil Court of The City of New York, Kings County


Chase Bank USA, N.A.

against

Shady A. Gergis

EXCERPTS:

UNDERLYING FACTS:

For its first witness, plaintiff called Martin Lavergne, who worked for CHASE BANK USA, N.A.(“Chase”) in various roles over a period of approximately 17 years. Presently, he holds the title of “custodian of records.” While Mr. Lavergne maintained that he had personal knowledge of the practices and procedures that Chase utilized in creating and maintaining consumer credit card account records, he never described these practices and procedures and never testified as to how he acquired personal knowledge of them.

[…]

Notably, some of the records that were shown to Mr. Lavergne were apparently created by Washington Mutual Bank. Mr. Lavergne explained this by stating that at some point in time, Chase had acquired Washington Mutual Bank. No testimony was elicited from Mr. Lavergne that he had worked for Washington Mutual Bank or that he had personal knowledge of the practices and procedures that Washington Mutual Bank employed in creating and maintaining consumer credit card account records.

[…]

Here, Mr. Lavergne’s foundational testimony was essentially a verbatim recitation of the statutory elements set forth in CPLR 4518[a]. He gave absolutely no testimony as to how the electronic records concerning defendant’s account statements came into existence nor did he indicate that he even knew how such information was collected. It would appear that credit card statements contain information that is conveyed from multiple entities, from the reporting merchant through various intermediaries, until the information is ultimately incorporated into plaintiff’s business records (see Discover Bank v Williamson, 2007 NY Slip Op 50231[U] [App Term, 9th and 10th Jud Dists]). Certainly, Mr. Lavergne did not demonstrate that the person or persons who inputted the electronic data had actual knowledge of the events inputted or that such person or persons obtained knowledge of those events from someone with actual knowledge of them and who had a business duty to relay information regarding the events (see Corsi v Town of [*4]Bedford, 58 AD3d 225, 229 [2d Dept 2008]; Capasso v Kleen All of America, Inc., 43 AD3d at 1347).

[…]

Further, Mr. Lavergne’s testimony was highly suspect. As stated above, some of the records that plaintiff sought to introduce into evidence through the testimony of Mr. Lavergne were apparently prepared by Washington Mutual Bank. The foundational testimony given by Mr. Lavergne concerning these records was identical to the foundational testimony he gave concerning the Chase records. It is well settled law that in order for a witness to lay the foundation for the admission of a document as a business record pursuant to CPLR 4518[a], the witness must demonstrate personal knowledge of the business practices and procedures pursuant to which the document was made (see Reiss v Roadhouse Rest., 70 AD3d 1021, 1025 [2d Dept 2010]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495 [2d Dept 2007]; Vento v City of New York, 25 AD3d 329, 330 [1st Dept 2006]; Dayanim v Unis, 171 AD2d 579 [1st Dept 1991]; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 51879[U] [App. Term, 2d & 11th Jud Dists]). Because Mr. Lavergne never worked for Washington Mutual Bank, it defies logic that he would have personal knowledge of Washington Mutual Bank’s business practices and procedures. For these reasons, the Court gives Mr. Lavergne’s “robo-testimony” and plaintiffs’ no weight or credit (People v Barrett, 14 AD3d 369 [1st Dept 2005]; see also Washington Mut. Bank v Phillip, 2010 NY Slip Op 52034[U] [Sup Ct, Kings County]).

[…]

In sum, the offered “robo-testimony” was insufficient to establish its case by a preponderance of the credible evidence. [*5]

Based on the above, it is hereby

ORDERED that judgment be entered in favor of defendant SHADY A. GERGIS and against plaintiff CHASE BANK USA, N.A. and that plaintiff’s complaint be DISMISSED with prejudice on the merits.

The foregoing constitutes the Decision and Order of the Court.

[ipaper docId=58601475 access_key=key-13b7jr4qpkf19xlbsusy height=600 width=600 /]

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



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Even after a loan mod, mortgage servicer errors put homeowners at risk of foreclosure

Even after a loan mod, mortgage servicer errors put homeowners at risk of foreclosure


ProPublica-

Chanel Rosario was supposed to be one of the lucky ones. After years of sending and re-sending documents, waiting on hold and attending court hearings to avoid foreclosure on her Staten Island home, she’d finally received a much-needed reduction on her mortgage. Eagerly, she and her husband signed it and mailed it in last September. “We thought it was over.”

It wasn’t. After months of making payments, Rosario called the bank handling her mortgage, Chase Home Finance, and found out Chase was still reporting her as delinquent, damaging her credit score and putting her home in jeopardy. Despite months of trying to get an explanation with the help of a legal-aid attorney, she still doesn’t know why Chase isn’t abiding by the agreement.



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



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JPMorgan Said to Face SEC Subpoena Along With Credit Suisse

JPMorgan Said to Face SEC Subpoena Along With Credit Suisse


BLOOMBERG-

JPMorgan Chase & Co. (JPM) received a subpoena from the U.S. Securities and Exchange Commission over failed mortgages, a person familiar with the investigation said, as the agency probes banks including Credit Suisse Group AG (CS) for allegedly failing to share refunds from sellers of faulty debt.



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CA CLASS ACTION AGAINST CHASE HOME FINANCE, ARGENT MTG

CA CLASS ACTION AGAINST CHASE HOME FINANCE, ARGENT MTG


via Brian Davies:

Excerpt:

Chase specifically and purposely disregards the Bankruptcy Code and, through false, fraudulent, misleading and undocumented Proofs of Claim, illegally collects or attempts to collect amounts from debtor that Chase cannot document and/or are not actually owed. Defendant’s routine and persistent filing of undocumented and false Proofs of Claim is an abuse of process and is in violation of the Bankruptcy Code and Rules.

[ipaper docId=50608683 access_key=key-1k6f1j7w4nh7lb8ojp2f height=600 width=600 /]

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



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FL 4th DCA APPEALS COURT: “ATTORNEY FEES AWARDED” VALCARCEL v. CHASE BANK

FL 4th DCA APPEALS COURT: “ATTORNEY FEES AWARDED” VALCARCEL v. CHASE BANK


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2010

CARMEN VALCARCEL and VICTOR VALCARCEL,
Appellants,
v.
CHASE BANK USA NA,
Appellee.

No. 4D10-379

[November 24, 2010]

TOWBIN SINGER, MICHELE, Associate Judge.

EXCERPTS:

The trial court granted the Valcarcels’ motion to dismiss as a sanction against Chase for sending a letter regarding the Valcarcels’ mortgage directly to the Valcarcels, rather than the Valcarcels’ lawyer. This mailing was a violation of rule 1.080(b), which requires service to be made upon a party’s attorney when he is represented by counsel.

Florida Rule of Civil Procedure 1.420(b) provides in pertinent part: “(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court.” Rule 1.420(d) provides: “(d) Costs. Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action.”

The trial court erred in denying the Valcarcels’ motion for attorney’s fees and costs based upon its finding that the order was not a judgment. Although the dismissal order was not an adjudication on the merits, the Valcarcels can nonetheless be considered the prevailing party. They are entitled to an award of attorney’s fees because the action against them was dismissed. We, therefore, reverse and remand to the trial court to determine the amount of attorney’s fees that should be awarded to the Valcarcels for both the trial and appellate proceedings.

Reversed and Remanded.

Valcarcel v Chase

[ipaper docId=44312420 access_key=key-oba0qz31mu3naz6701a height=600 width=600 /]

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The Elephant In The Foreclosure Fraud Room: Second Liens

The Elephant In The Foreclosure Fraud Room: Second Liens


There’s been plenty of recent media attention to the prospect of investor lawsuits over fraudulent mortgages and mortgage securities. But investor lawsuits against mortgage servicers could be even more damaging than these other lines of legal inquiry. The four largest banks hold nearly half a trillion dollars worth of second-lien mortgages on their books—loans that could be decimated if investors successfully target improper mortgage servicing operations. The result would be major trouble for the financial system. The result would be major trouble for too-big-to-fail behemoths.

Mortgage servicers are the banking industry’s debt collectors. They accept payments and forward them along to investors who own mortgage securities– servicers themselves don’t actually own the mortgages they handle. This is a recipe for trouble for a variety of reasons, but one of the biggest problems is the fact that the nation’s four largest banks also operate the four largest mortgage servicers. Bank of America, Wells Fargo, JPMorgan Chase and Citigroup service about half of all mortgages in the United States. They also have multi-trillion-dollar businesses whose interests often conflict with those of mortgage security investors.

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



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WAMU ERIKA HERRERA “NOTARY” INVALID 2001-2005

WAMU ERIKA HERRERA “NOTARY” INVALID 2001-2005


I feel this is the beginning of this as well.

Hat Tip to a subscriber on this:

Erika Herrera CA Notary Public No. 1290845 Revocation Cert 9-29-10,

If Erika Herrera Notarized your foreclosure documents the foreclosure is illegal!!

Employed by Washington Mutual and acting as a Notary was not a legal Notary in California where she worked and notarized thousands of foreclosure documents. Please see attached and inform all of your members nationwide!

She has notarized documents including affidavits and assignments.

[ipaper docId=38474072 access_key=key-109r7e20m5mr3d6kyqag height=600 width=600 /]

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



Posted in assignment of mortgage, Erika Herrera, foreclosure, foreclosure fraud, foreclosures, Notary, notary fraud, wamu, washington mutualComments (0)

BREAKING NEWS: SECTRETARY of STATE OHIO:CHASE HOME FINANCE & MERS ABUSE!!

BREAKING NEWS: SECTRETARY of STATE OHIO:CHASE HOME FINANCE & MERS ABUSE!!


For Immediate Release

SECRETARY BRUNNER OUTLINES TWO LINES OF ATTACK IN FIGHTING HIGH OHIO FORECLOSURE RATES

COLUMBUS, Ohio – Ohio Secretary of State Jennifer Brunner, Ohio’s chief elections officer and the state officer responsible for licensing notary publics, today issued a directive to boards of elections that foreclosures cannot be used without further investigation to disqualify voters and revealed that she has referred specific instances of notary abuse occurring at Chase Home Mortgage in Columbus and by the Mortgage Electronic Registration Systems, Inc. (MERS) to a federal prosecutor for investigation.

DIRECTIVE ON VOTERS FACING FORECLOSURES: Secretary Brunner, in Directive 2010-66, instructed Ohio’s 88 county boards of elections that they may not cancel an Ohioan’s voter registration based solely on the fact that the person is involved in the foreclosure process.  The filing of a foreclosure action does not affect a voter’s right to vote until there is a final judgment entry, including the passage of at least 30 days from the date of the entry because of the right of appeal, and verification that the person no longer resides at the property. Ohio continues to experience high residential foreclosure rates.

Those who lose their homes because of foreclosure may wait until Election Day to update their address. Boards are instructed in the directive how to help voters displaced because of foreclosure, based on whether they move (1) within the same precinct, (2) within the same county but to a different precinct, or (3) to a different county in Ohio.  Voters facing foreclosure may use their current location of residence as their residence for the purposes of voting.

REFERRAL OF CHASE HOME MORTGAGE AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. TO FEDERAL PROSECUTOR: Secretary Brunner, in two letters dated Aug. 11, 2010 and Sept. 1, 2010, referred matters of alleged notary abuse in thousands of home mortgage foreclosures by Chase Home Mortgage and the Mortgage Electronic Registration Systems, Inc. to U.S. District Attorney Steven Dettelbach in Cleveland. Citing two depositions, (one & two) of Chase employee Beth Cottrell, taken in Columbus in May of 2010, and a deposition of MERS Secretary and Treasurer, William Hultman taken in New Jersey in April of 2010.  These depositions contain sworn testimony that at Chase Home Mortgage, 18,000 documents per month are executed and notarized per month by eight people, with admissions that:

  1. it is the notary and not the document signer who gives an oath who fills in numbers in the affidavits used in court ordered foreclosures,
  2. no oath is administered for the signing of each document,
  3. notarized documents are not verified by the person signing and giving oath that they have personal knowledge of the contents of the documents, but rather, signers are relying on verification by others,
  4. documents are signed in bulk and notarized in bulk separately,
  5. notaries know this at the time they notarize documents in this process.

The MERS deposition of William Hultman demonstrates that after corporate status changes occurred for MERS, new designations of authority were not executed, leaving one or more individuals for the former MERS corporation continuing to delegate authority on behalf of the new corporation without authorization by the new corporation.

According to its website: “MERS was created by the mortgage banking industry to streamline the mortgage process by using electronic commerce to eliminate paper…MERS acts as nominee in the county land records for the lender and servicer. Any loan registered on the MERS® System is inoculated against future assignments because MERS remains the nominal mortgagee no matter how many times servicing is traded. MERS as original mortgagee (MOM) is approved by Fannie Mae, Freddie Mac, Ginnie Mae, FHA and VA, California and Utah Housing Finance Agencies, as well as all of the major Wall Street rating agencies.”
MERS was created by the mortgage lending industry to:

  1. eliminate frequent re-recording of liens,
  2. avoid paying county recorder fees and other local taxes as mortgage loans are assigned as backing or securitization for derivatives trading by banks and other financial institutions,
  3. monitor and facilitate the transfer of original mortgage notes in the trading of mortgage-backed securities,
  4. foreclose on mortgage notes for unnamed note holders, even though it is not the real financial party in interest and does not hold the original note for the mortgage.

Currently, over half of all new residential mortgage loans in the U.S. are registered with MERS and recorded in county recording offices in MERS’ name, reducing transparency, leaving consumers unable to determine who actually holds the note on their homes.

Secretary Brunner made the following statement on the situation:
“Mortgage foreclosure documents must be notarized according to the law. Requiring this is not an afterthought or an exercise of form over substance—the law must be followed when taking away someone’s home, regardless of the circumstances.

For too long thousands of homes have been taken from consumers without proof that the foreclosing party actually has that right. Our courts must be cautious and require absolute adherence to the law. As the officer in Ohio who licenses notaries, I cannot stand idly by and watch financial institutions concoct a chain of title they never had by abusing the notary process.

It’s not fair to consumers or to the employees who by virtue of their jobs, are signing these documents. I urge the U.S. Department of Justice to take up this investigation with vigor and purpose to protect consumers and hold financial institutions to the standards of scrutiny and exactitude required by law, even if it means prosecuting some of our largest corporations. These apparent violations of state law point to schemes that merit federal investigation of large institution lending practices and use of the U.S. Postal Service.”

Last week, GMAC Mortgage announced it had suspended evictions and post-foreclosure closings in 23 states over concerns about employees preparing foreclosures with affidavits submitted to judges containing information they did not personally verify. Yesterday it was announced that JPMorgan Chase and Co hired external counsel to review its affidavit process based on the depositions of Beth Cottrell and is delaying approximately 56,000 current foreclosure proceedings.

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



Posted in assignment of mortgage, Beth Cottrell, chain in title, chase, conspiracy, CONTROL FRAUD, corruption, deposition, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, GMAC, investigation, MERS, MERSCORP, Moratorium, mortgage, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., STOP FORECLOSURE FRAUD, William C. HultmanComments (3)

GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
Chip Parker, www.jaxlawcenter.com
Kenneth Eric Trent, www.ForeclosureDestroyer.com
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