Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-661863
BEFORE: Gallagher, J., Celebrezze, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: February 10, 2011
excerpts:
{¶ 2} Defendant-appellee CitiMortgage, Inc., filed a foreclosure action
on June 10, 2008, alleging appellants were in default on a note and mortgage,
which was secured by appellants’ home. Appellants filed a counterclaim
raising claims for breach of contract, fraud in the inducement, and intentional
or negligent misrepresentation. The counterclaim arose from a forbearance
agreement entered between the parties in May 2007.
{¶ 3} CitiMortgage was ordered to file evidence that it had standing to
file the case in accordance with the ruling in Wells Fargo Bank, N.A. v.
Jordan, Cuyahoga App. No. 91675, 2009-Ohio-1092. In Jordan, this court
held that a party lacks standing to bring a foreclosure action if the party
cannot prove that it owned the note and mortgage on the date the complaint
was filed. Id.
{¶ 4} CitiMortgage opted to voluntarily dismiss its claims without
prejudice pursuant to Civ.R. 41(A). Thereafter, the trial court ordered
appellants to file a notice of intent to proceed on their counterclaim and to
demonstrate their standing to pursue their claims. Appellants eventually
indicated their intent to proceed, asserted standing to pursue their
counterclaim, and stated that their counterclaim was based solely upon facts
and circumstances arising from the parties’ forbearance agreement.
<SNIP>
{¶ 12} In this case, appellants’ counterclaim did not arise from the note
or mortgage. Rather, appellants asserted claims of breach of contract, fraud,
and misrepresentation arising from a forbearance agreement they entered
with CitiMortgage in an earlier foreclosure action, CitiMortgage, Inc. v. Slack,
Cuyahoga County Common Pleas Court Case No. CV-606916. The
forbearance agreement was entered in May 2007. The record does not reflect
any basis for concluding the trial court could not adjudicate appellants’
counterclaim independently from the complaint. Upon our review, we find
that the trial court had jurisdiction of the parties and of the controversy and
erred by dismissing the counterclaim.4
{¶ 13} Appellants’ sole assignment of error is sustained.
Judgment reversed; case remanded.
By: David Dayen Wednesday February 9, 2011 8:45 am
I attended a Huffington Post Mortgage Madness Meetup in Los Angeles last night, which suffered from some late planning, the buggy nature of the Meetup tool and the general difficulty of self-organizing. Only a half-dozen people showed, and most of them were either media (a guy from NPR’s Marketplace) or interested observers in the foreclosure mess. In fact, the one homeowner with a story to tell arrived late and almost didn’t make it because he went to the wrong location initially. But oh, what a story he had to tell. And while I’ve heard a lot of these HAMP horror stories in the past year, I’ve never heard anything like this.
Jeremy Fletcher is a swimming pool builder from Northridge, California. His business jumped along with the inflation of the housing bubble, as people bought new homes and made improvements. He made enough money in those years to purchase a $900,000 home for him, his wife and two kids in late 2007. “Ironically, the reason I was doing so well ended up tied to the same thing that got me in this mess,” Fletcher, a surfer and former musician who lived with the Lovin’ Spoonful growing up, told the group.
As the bubble popped, his business tanked. He went from $250,000 in sales in 2007 to $40,000 in 2008. By early 2009, “I was totally broke,” paying for his $4,200 mortgage out of savings and barely hanging on.
He called his servicer, Citi Mortgage, early in 2009, when HAMP was announced, to see if he could get help. “I thought I was being responsible, looking forward before I got into trouble,” he said. The servicer didn’t see it that way. Citi told him they wouldn’t help because he hadn’t missed a payment and showed no sign of default.
CITIMORTGAGE, INC. Plaintiff,
v.
REINALDO JOSE PANIAGUA-LATIMER, CYNTHIA MARIE MUÑOZ-ZAYAS, CONJUGAL PARTNERSHIP PANIAGUA-MUÑOZ Defendant(s).
Civil No. 08-1591 (SEC).
United States District Court, D. Puerto Rico.
December 27, 2010.
OPINION and ORDER
SALVADOR E. CASELLAS, Senior District Judge.
Pending before this Court is Defendants Reinaldo Paniagua Latimer, Cynthia Marie Muñoz Zayas, and their conjugal partnership’s (“Defendants”) motion to vacate default judgment. Docket #18. Plaintiff Citimortgage, Inc. (“Plaintiff”) opposed (Docket #20), and Defendants replied (Docket #21 & 24). After reviewing the filings and the applicable law, Defendants’ motion to vacate default judgment is GRANTED.
<SNIP>
We further note that, as Defendants correctly point out, although Plaintiff submitted an affidavit by the process server, they did not file a verified complaint or accompanied the motion for service by publication with an affidavit setting forth factual allegations that justifies that they are entitled to some relief. In light of the applicable case law, this defect deprives this Court of jurisdiction over Defendants, and consequently renders the default judgment void. As a result, this Court’s May 14, 2009 default judgment is VACATED, and the present case is DISMISSED without prejudice for lack of personal jurisdiction.
Conclusion
For the above stated reasons, Defendants’ motion to vacate default judgment is GRANTED, the May 14, 2009 default judgment is VACATED, and the instant case is DISMISSED without prejudice.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 27 day th of December, 2010.
s/Salvador E. Casellas
Salvador E. Casellas
U.S. Senior District Judge
In submitting any future orders of reference said application shall include an affidavit from plaintiff indicating whether this loan is subject to a H.A.M.P. review and whether plaintiff is or is not prevented from proceeding with the instant foreclosure by reason of any applicable federal H.A.M.P. directives.
The Court does not work for CITI and cannot wait for CITI, a multi-billion dollar financial behemoth to get its “act” together.
Conclusion
Accordingly, it is ORDERED, that the instant motion of plaintiff CITIMORTGAGE, INC. for summary
judgment and an order of reference for the premises at 38 Norwood Avenue, Brooklyn, New
[*4]York (Block 3905, Lot 28, County of Kings) is denied; and it is further
ORDERED, that the instant action, Index Number 2558/09, is dismissed without prejudice;
and it is further
ORDERED, that the notice of pendency in the instant action, filed with the Kings County
Clerk on February 2, 2009, by plaintiff, CITIMORTGAGE, INC., to foreclose a mortgage for
real property located at 38 Norwood Avenue, Brooklyn, New York (Block 3905, Lot 28,
County of Kings), is cancelled; and it is further
ORDERED, that if plaintiff, CITIMORTGAGE, INC., moves to restore the instant foreclosure
action and motion for an order of reference for real property located at 38 Norwood Avenue,
Brooklyn, New York (Block 3905, Lot 28, County of Kings), counsel for plaintiff must comply
with the new Court filing requirement, announced by Chief Judge Jonathan Lippman on October
20, 2010, and ordered by Chief Administrative Judge Ann T. Pfau on October 20, 2010, by
submitting an affirmation, using the new standard Court form, pursuant to CPLR Rule 2106 and
under the penalties of perjury, that counsel for plaintiff, CITIMORTGAGE, INC.: has “based
upon my communications [with named representative or representatives of plaintiff], as well as
upon my own inspection and reasonable inquiry under the circumstances, . . .that, to the best of
my knowledge, information, and belief, the Summons, Complaint and other papers filed or
submitted to the Court in this matter contain no false statements of fact or law”; and, is “aware of
my obligations under New York Rules of Professional Conduct (22 NYCRR Part 1200) and 22
NYCRR Part 130.”
This constitutes the Decision and Order of the Court.
“Issues”…Nah no “issues”? If this isn’t sending us a message or 127 messages that there aren’t any “issues”… Let them continue to submit exactly what they were filing before the *New Rule*… don’t stop now! Believe me there is more than these!
EXCERPT:
Pursuant to an Administrative Order of the Chief Judge, dated October 20, 2010, all residential mortgage foreclosure actions require an affirmation from the attorney representing the plaintiff/lender/bank, as stated in the affirmation attached to this order, that he/she has inspected all documents.
The plaintiff is also directed on any future application to provide a copy of this Court’s order, the prior application/motion papers and an updated affidavit of regularity/merit from the plaintiff/lender/bank’s representative that he/she has reviewed the file in this case and that he/she documents that all paperwork is correct. The plaintiff/lender/bank’s representative shall also provide in said affidavit of regularity her/his position, length of service, training, educational background and a listing of the documents and financial records reviewed substantiating the review of the amounts owed. The affidavit should also include that she/he has personally reviewed both the mortgage and the note and any assignments for accuracy.
The plaintiff bears the burden of proof in a summary judgment proceeding and judgment will only be awarded when all doubt is removed as to the existence of any triable issue of fact. Under the present circumstances, where there have been numerous instances alleged as to “robo” signing of documents and a failure to attest to the accuracy of documents in mortgage foreclosure proceedings, the plaintiff must prove its entitlement to foreclose on a mortgage as a matter of law by establishing the regularity and accuracy of the financial documentary evidence submitted and the Court will be scrutinizing all documents for accuracy.
The foregoing constitutes the decision of the Court.
By Kimberly Miller
Palm Beach Post Staff Writer
Posted: 5:54 p.m. Thursday, Dec. 9, 2010
Scores of Palm Beach County homes were sold to investors at foreclosure auction this month for as low as $200 following the collapse of the David J. Stern law firm and ensuing confusion as thousands of its cases are reassigned.
It’s yet another muddle for the already overwhelmed foreclosure courts to sort out as former Stern cases went to auction with no bank representation, bids or proper public notice.
The result on Wednesday was 56 percent of winning offers were from investors or individual buyers who in some cases spent no more than a month’s mortgage payment to get homes that sold for upward of $240,000 during the real estate boom.
During a typical foreclosure auction, investors or individual buyers purchase between 3 percent and 13 percent of the homes, with the majority bought back by the banks.
But it is nowhere near certain the rock bottom prices will stick. Some of the sales were done without the required public advertisement. The Palm Beach County Clerk of Court will not issue a certificate of sale without proof that the auction was advertised once a week for two consecutive weeks before the sale.
Still, it takes a judge’s order to vacate or verify a questionable sale.
Paperwork error complicates home sale, raises questions about process
By Diane C. Lade and Doreen Hemlock, Sun Sentinel
5:00 p.m. EST, December 4, 2010
Real estate investor Marjorie Oster was pleased when she snagged what looked like a good deal through a Miami-Dade County foreclosure court auction: a four-bedroom house in Cutler Bay, with a swimming pool, for about $95,000.
But when her husband drove by the next day to check on the property, he saw “someone cleaning the pool, a lawn service cutting the grass and a note it was being tented for termites,” said Oster, a Miami resident who has been in real estate for 15 years.
It turns out the house she thought she had purchased had been sold in a short sale the week before to someone else — Osberto Jimenez, a 40-year-old Cuban-born truck driver. The law firm handling the foreclosure for the lender mishandled the paperwork and never canceled the auction sale.
“So we both own the same house and I’m frustrated as hell,” said Oster. “Someone screwed up.”
Source: Strauss & Troy Strauss & Troy Investigates HSBC Bank and Citi Mortgage
CINCINNATI, Dec. 1, 2010 (GLOBE NEWSWIRE) — The Cincinnati law firm of Strauss & Troy announced today that it is investigating HSBC Bank and Citi Mortgage for potential violations of state and federal law with regard to foreclosures initiated against homeowners participating in the Home Affordable Modification Program (HAMP) and/or robo-signers who initiated foreclosure actions without adequately reviewing the filings. Strauss & Troy represents homeowners in a pending action against a bank for alleged violations of HAMP.
Individuals who have lost their homes in a foreclosure action or are currently in foreclosure initiated by HSBC or Citi Mortgage: (i) after making payments pursuant to a trial HAMP payment plan that was not made permanent, or (ii) as a result of robo-signers who initiated foreclosure actions without adequately reviewing the filings, may have a claim and are encouraged to contact attorneys Richard Wayne, William Flynn, or John Levy at (513) 621-2120, or by email at: rswayne@strausstroy.com, wkflynn@strausstroy.com or jmlevy@strausstroy.com for further information without any obligation or cost to you.
CONTACT: Strauss & Troy
Richard Wayne, Esq.
William Flynn, Esq.
John Levy, Esq.
(513) 621-2120
1-800-669-9341
Cincinnati, Ohio 45202
PATRICK L. COGSWELL and PATRICK M. O’FLAHERTY, doing business as THE PATRICK GROUP, Plaintiffs-Appellants,
v.
CITIFINANCIAL MORTGAGE COMPANY, INCORPORATED, successor by merger to Associates Finance, Incorporated, Defendant-Appellee.
No. 08-2153.
United States Court of Appeals, Seventh Circuit.
Argued April 15, 2009. Decided October 5, 2010.
Before FLAUM, RIPPLE, and SYKES, Circuit Judges.
SYKES, Circuit Judge.
CitiFinancial Mortgage assigned its interest in a mortgage to two investors—doing business as “The Patrick Group”—but never delivered the original or a copy of the underlying note. When The Patrick Group tried to foreclose on the mortgage in Illinois state court, its action was dismissed because it could not produce the note. After an unsuccessful appeal, The Patrick Group filed this breach-of-contract lawsuit against CitiFinancial. The suit was removed to federal court, and the district court granted summary judgment in favor of CitiFinancial.
We reverse. The district court based its summary-judgment decision primarily on a determination that CitiFinancial never agreed to deliver the note as part of the parties’ agreement to transfer the mortgage. But whether they agreed on this term is a question of fact, and The Patrick Group presented enough evidence from which a reasonable fact finder could conclude that it was a part of the parties’ agreement. The district court’s alternative basis for summary judgment—that CitiFinancial’s alleged breach did not cause The Patrick Group’s damages—was also erroneous. Under the circumstances of this case, the causation question should have been resolved in The Patrick Group’s favor as a matter of law; the state trial and appellate courts rejected The Patrick Group’s foreclosure action because without a copy of the note, it could not prove it was the holder of the debt the mortgage secured.
<SNIP>
In short, as a matter of law, The Patrick Group’s damages were caused by CitiFinancial’s failure to deliver an original or a copy of the note secured by the mortgage.[5] The open factual question is whether the parties’ agreement required CitiFinancial to do so, and on this the evidence is disputed. We therefore REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
Testimony of Harold Lewis
Managing Director, CitiMortgage
Before the Committee on Financial Services
Subcommittee on Housing and Community Opportunity
November 18, 2010
Excerpt:
As an additional quality control measure, Citi is currently reviewing approximately 10,000 affidavits that were executed in pending judicial foreclosures initiated prior to February 2010 to assure that these affidavits are substantively correct and properly executed. Citi expects that affidavits executed prior to the fall of 2009 will need to be re-filed.
Separately, Citi is also reviewing approximately 4,000 pending foreclosure affidavits in judicial states that were executed at our Dallas processing center and may not have been signed in the presence of a notary, to assure that these affidavits are substantively correct and properly executed. Citi expects that it will re-file these affidavits.
Lastly, as previously announced, Citi stopped referring new matters to the Florida law firm David Stern in September of 2010 and has since withdrawn all pending matters from that firm. As an added precaution and quality-control measure, Citi is transferring approximately 8,500 pending foreclosure files from the Stern law firm to new counsel. New affidavits for these cases will be prepared and re-filed by new counsel under Citi’s current procedures.
Brent and Wendy Diers of Fruita thought their foreclosure nightmare would end in April when they sent a check to pay off their mortgage.
.
But more than six months later, CitiMortgage hasn’t followed through on repeated assurances it would release the lien and give them title.
And despite a judge’s ruling that they are not in default, the lender’s law firm, Castle Meinhold & Stawiarski, continues to pursue a foreclosure sale.
“We are not in default and they do not have authorization to sell our house,” a frustrated Wendy Diers said.
Although the Diers case is extreme, it is just one of several stories of borrowers in Colorado and elsewhere who find themselves trapped in a frustrating state of limbo.
A surge in foreclosures has strained the system across the country, creating problems of lost paperwork, uncertain ownership on mortgages, and sloppy processing that has forced some lenders in recent weeks to pull back.
And those individuals who fall through the cracks like the Dierses find it hard to get out.
In a phone conversation, the Dierses recorded a CitiMortgage employee in May telling them “rest assured, we do have the check. Everything is fine.”
In July, the couple were told the title was being contested. Another CitiMortgage representative, named Jennifer, in late July tells them, “We have the title clear. The mortgage has been paid.”
(Updates with spokesman’s comment in second paragraph.)
Oct. 25 (Bloomberg) — Texas Attorney General Greg Abbott sent subpoenas to JPMorgan Chase & Co., Bank of America Corp. and seven other banks or loan servicers seeking information about foreclosure practices, a spokesman said.
“The state is subpoenaing information and documents,” Jerry Strickland, the spokesman, said in an interview. He didn’t elaborate. The state also subpoenaed Ally Financial Inc., CitiMortgage Inc. and Wells Fargo & Co.
Abbott began investigating foreclosure practices in Texas following the disclosure of a December deposition in which an employee of Ally’s GMAC Mortgage unit testified that his team signed about 10,000 documents a month without verifying their accuracy. On Oct. 13, all 50 state attorneys general announced a joint investigation of foreclosures.
The Texas subpoenas followed letters sent by Abbott’s office to 30 loan servicers on Oct. 4, asking them to halt foreclosures in the state pending a review of their practices.
Abbott asked banks then to identify employees who filed faulty affidavits or other documents in the state and identify foreclosures that used such documents. He also asked lenders and servicers to halt all sales of properties previously foreclosed upon and stop all evictions.
Twenty-six of those companies responded to the letters, according to a spreadsheet of answers sent today by Strickland.
FRANCIS R. BALOUN and ANTOINETTE M. BALOUN, Appellant(s),
v.
CITIMORTGAGE, INC., etc., Appellee(s).
Case No. 5D09-2793.
District Court of Appeal of Florida, Fifth District.
Opinion filed October 15, 2010
Michael E. Rodriguez, of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.
Forrest G. McSurdy, of Stern & McSurdy, Law Offices of David J. Stern, P.A., Plantation, for Appellees.
ON CONCESSION OF ERROR
PER CURIAM.
Pursuant to the Appellees’ concession of error, the order granting summary final judgment in foreclosure is reversed and this cause is remanded for further proceedings.
The following documents appear to be either stamped in or scanned in but in no way signed by any human on this earth.
This also backs up Angela Nolan deposition where she states:
Let me explain the process. This is an electronic signature, so there’s certain states that allow electronic signatures. And I believe I sent you documentation on that where we sign our name, it’s scanned into a database, then the signatures are applied electronically.
So here is some of the examples…. and do not ask me to get ALL that are there because I will need an entire year to gather them all.
Coakley begins probe, calls for foreclosure moratorium
By Herald Staff
Saturday, October 2, 2010 –
Massachusetts Attorney General Martha Coakley called on Bank of America and other major creditors to delay all foreclosure proceedings and pledged to begin her own investigation in light of recent revelations that they may not have complied with the law.
Bank of America announced Friday it was delaying foreclosures in 23 states, not including Massachusetts, as it examines whether it rushed the foreclosure process for thousands of homeowners without reading the documents.
“Our office has been extremely active in holding major banks and Wall Street firms accountable during this foreclosure crisis. We are concerned about the revelations that Bank of America and other major lenders have failed to properly review foreclosure documentation,” Coakley said yesterday in a statement. “Our office is now investigating this apparent failure of major creditors to follow state foreclosure law to ensure that Massachusetts homeowners are properly protected. In light of these revelations, we are asking Bank of America and other major creditors to cease foreclosure proceedings for Massachusetts homeowners until they can demonstrate that they have complied with Massachusetts law.”
Documents submitted to a court are supposed to be true as submitted. As an attorney, If I file a document with a court in which I swore I personally verified that the information contained within the document is true, and I didn’t actually do that, I’d get in real trouble. It’s simple: That’s fraud in the eyes of the court.
GMAC, JPMorgan Chase and Bank of America recently admitted that their employees routinely sign thousands of documents without verifying what they’re signing. Those documents are then submitted to courts as if the documents were true, to enable the banks to foreclose on delinquent properties. Wells Fargo and CitiMortgage told the New York Times their employees do not engage in similar practices. Yet new evidence shows they do.
Confusion at Wells Fargo
Herman John Kennerty of Wells Fargo has given a deposition describing the department he oversees for Wells Fargo. It’s a department dedicated to simply signing documents. Kennerty testified that he signs 50 to 150 documents a day, verifying only the date on each. What else might he want to verify? Well, in one document he signed, he supposedly transferred the mortgage from Washington Mutual Bank FA to Wells Fargo on July 12, 2010. But that’s impossible, since Washington Mutual Bank FA changed its name in 2004, and by any name WaMu ceased to exist in 2008, when the FDIC took it over. Making the document even less comprehensible, the debtor had declared bankruptcy a month earlier, according to Linda Tirelli, who represented the debtor. Why would Wells Fargo want a mortgage from someone in bankruptcy? Finally, Tirelli pointed out that the papers Wells Fargo filed included a different transfer of the mortgage dated three days before the debtor took out the loan. The documents are a mess, yet Kennerty signed them regardless. Legal Nonsense at CitiMortgage
Similarly, one M. Matthews signed a number of documents that CitiMortgage has used to try to foreclose on properties. While Matthews may or may not sign hundreds of documents a day — I have not yet found a deposition in which he swears that he does — he certainly does not verify the contents of the documents he’s signing. For example, he signed a document supposedly transferring a mortgage from Lehman Brothers to Citi in 2009. It’s hard to see how that’s possible, since Lehman had already ceased to exist. When confronted with its nonsensical filing, Citigroup decided not to foreclose. Instead, it gave the homeowner a meaningful mortgage modification–$15,000 principal reduction, plus a 30 year fixed mortgage at 3%. Tirelli, who represented the debtor in that case too, notes that she sees bad documents in the vast majority of cases, and she keeps files of “robosigned” documents.
It’s true that in both the WaMu and Lehman Brothers documents, the signers were officially representing an entity called MERS and acting as the “nominee” of WaMu and the “nominee” of Lehman Brothers. But that doesn’t change the fraudulent nature of the documents as filed. MERS can’t continue to be the nominee of an entity that doesn’t exist. Moreover, MERS can’t assign something it doesn’t have, and MERS itself will admit it doesn’t own the underlying note or mortgage.
Possible Sanctions for JPMorgan Chase
Wells Fargo and CitiMortgage aren’t the only big banks to misrepresent their practices in the media; JPMorgan Chase told the New York Times that it had not withdrawn any documents in a pending case. However, Chase has in fact withdrawn robosigned documents in a case Tirelli is currently defending. Chase now faces possible sanctions in the case.
Why are the big, sophisticated banks submitting such problematic documents to the courts? The key reason is that sometimes when a bank wants to foreclose, it has to prove it actually has the right to foreclose — that it owns the note and accompanying mortgage. Unfortunately for the banks, the securitization of mortgages and the changes in property ownership documentation that accompanied it make it hard for the banks to establish clean chains of title and produce original documents. Hard, that is, in an environment where a massive number of foreclosures must be started and completed in a timely manner.
JOHN KENNERTY a/k/a Herman John Kennerty has been employed for many years in the Ft. Mill, SC offices of America’s Servicing Company, a division of Wells Fargo Bank, N.A. He signed many different job titles on mortgage-related documents, often using different titles on the same day. He often signs as an officer of MERS (“Mortgage Electronic Registration Systems, Inc.”) On many Mortgage Assignments signed by Kennerty, Wells Fargo, or the trust serviced by ASC, is shown as acquiring the mortgage weeks or even months AFTER the foreclosure action is filed.
Titles attributed to John Kennerty include the following:
Asst. Secretary, MERS, as Nominee for 1st Continental Mortgage Corp.;
Asst. Secretary, MERS, as Nominee for American Brokers Conduit;
Asst. Secretary, MERS, as Nominee for American Enterprise Bank of Florida;
Asst. Secretary, MERS, as Nominee for American Home Mortgage;
Asst. Secretary, MERS, as Nominee for Amnet Mortgage, Inc. d/b/a American Mortgage Network of Florida;
Asst. Secretary, MERS, as Nominee for Bayside Mortgage Services, Inc.;
Asst. Secretary, MERS, as Nominee for CT Mortgage, Inc.;
Asst. Secretary, MERS, as Nominee for First Magnus Financial Corporation, an Arizona Corp.;
Asst. Secretary, MERS, as Nominee for First National Bank of AZ;
Asst. Secretary, MERS, as Nominee for Fremont Investment & Loan;
Asst. Secretary, MERS, as Nominee for Group One Mortgage, Inc.;
Asst. Secretary, MERS, as Nominee for Guaranty Bank;
Asst. Secretary, MERS, as Nominee for Homebuyers Financial, LLC;
Asst. Secretary, MERS, as Nominee for IndyMac Bank, FSB, a Federally Chartered Savings Bank (in June 2010);
Asst. Secretary, MERS, as Nominee for Irwin Mortgage Corporation;
Asst. Secretary, MERS, as Nominee for Ivanhoe Financial, Inc., a Delaware Corp.;
Asst. Secretary, MERS, as Nominee for Mortgage Network, Inc.;
Asst. Secretary, MERS, as Nominee for Ohio Savings Bank;
Asst. Secretary, MERS, as Nominee for Paramount Financial, Inc.;
Asst. Secretary, MERS, as Nominee for Pinnacle Direct Funding Corp.;
Asst. Secretary, MERS, as Nominee for RBC Mortgage Company;
Asst. Secretary, MERS, as Nominee for Seacoast National Bank;
Asst. Secretary, MERS, as Nominee for Shelter Mortgage Company, LLC;
Asst. Secretary, MERS, as Nominee for Stuart Mortgage Corp.;
Asst. Secretary, MERS, as Nominee for Suntrust Mortgage;
Asst. Secretary, MERS, as Nominee for Transaland Financial Corp.;
Asst. Secretary, MERS, as Nominee for Universal American Mortgage Co., LLC;
Asst. Secretary, MERS, as Nominee for Wachovia Mortgage Corp.;
Vice President of Loan Documentation, Wells Fargo Bank, N.A.;
Vice President of Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc.
By The Palm Beach Post
Updated: 7:45 p.m. Thursday, Sept. 23, 2010
Posted: 7:33 p.m. Thursday, Sept. 23, 2010
Last month, Palm Beach County Senior Judge Roger Colton opened his afternoon foreclosure session by telling homeowners that he’d heard all their stories before, and he would give them a maximum of five months before letting lenders take their homes.
“I know all about the Chinese drywall problems. I know all about sickness,” Judge Colton said. “I know all about divorce. I know all about anything else as to why we find ourselves in this position today.”
In the first case, Judge Colton signed a final summary judgment giving Everhome Mortgage Co. the right to foreclose on a Lake Worth couple’s home despite their attorney’s objections that Everhome had failed to prove that it owns the note. Foreclosure defense lawyers cite the case as an egregious example of Florida’s so-called “rocket docket,” the process of expediting foreclosure cases through the courts by siding with lenders.
That was not the intent of state legislators this year when they appropriated $9.6 million to reduce the foreclosure backlog. Though the state has set a goal of reducing the more than 500,000 cases by 62 percent within a year, that goal should be met by handling each case based on its merit and not by watching the clock. That’s particularly important given the fraud perpetrated by lenders – many of which knowingly issued loans to buyers who couldn’t afford them – and their attorneys.
Tampa-based Florida Default Law Group has been withdrawing legal affidavits in its GMAC Mortgage foreclosure cases, acknowledging that information it gave to courts may have been inaccurate. The affidavits supposedly attest to the validity of documents submitted to verify that a lender has the right to foreclose. Florida law requires that lenders prove ownership of the note underlying the mortgage.
In the case before Judge Colton, attorney Loretta Bangor questioned the validity of affidavits submitted by Everhome’s attorney, a lawyer with Shapiro & Fishman, one of three firms under investigation by the Florida attorney general for “unfair and deceptive actions” in foreclosure cases. Judge Colton, one of two retired judges hired to handle foreclosures under the new state program, did not ask to see the documents. Nor did he question Shapiro & Fishman about the validity of the documents.
In 2006 MERS released a mortgage belonging to the Velez’s. MERS Vice President name is Merhl Gibson and the notary is Jane Eyler. Both from Maryland. It appears that the same individual signed the entire document. See exhibit below.
Now these same individuals are signing this document below as Vice President and Notary for CitiMortgage. But take a close look and compare the signatures to the release above.Both of these are about a few weeks apart. Merhl’s stamp is from New York.
“On 8/30, I had a Summary Judgment Foreclosure hearing on Palm Beach County’s “Rocket Docket”. The judge spoke for 14 minutes to the crowd, of mostly pro se defendants, about how they should just agree to the summary judgment and the plaintiffs, (whose attorneys (Shapiro & Fishman had a dedicated courtroom and to whom he referred to as “my attorneys”) would be gracious (Ha!) enough to allow them to stay in their homes for 120 days if needed (even though the statute says he only has to give them 30). When it came to hearing arguments which were fully briefed and provided to the court (pursuant to the instructions of the Divisions head judge) he only allowed 30-60 seconds for argument, failed to read any of the papers, failed to review the plaintiff’s foreclosure package,flatly ignored the Affidavit filed in Opposition, ignored my plea for a trial, signed the judgment and dismissed me. I never was permitted to even read the proposed judgment or to examine the “newly discovered” allonge which Shapiro’s counsel said I had no right to see. Thank God I had a court reporter!”
Well it just happens to be that Lori is an Attorney and got a transcript of what went down…
INQUIRY CONCERNING A JUDGE NO. 09-01 and 09-578
RE: JUDGE N. JAMES TURNER SC09-1182
Illegal Practice of Law
As a sitting judge, Turner was prohibited from engaging in the practice of law. However, he knowingly acted as his mother’s lawyer in a foreclosure proceeding in Dade County.
THE FLORIDA JUDICIAL QUALIFICATIONS COMMISSION’S SECOND
INTERROGATORIES TO JUDGE N. JAMES TURNER states:
INTERROGATORY NO. 1: Please specifically itemize and describe the source of funds (in excess of $42,000) that you reported as loans from you to your campaign.
ANSWER:
INTERROGATORY NO. 2: Please specifically itemize and describe all funds, however characterized, you received from your mother (Mignon Gordon) which were used for the campaign for the office you now hold, including, the date(s) any such funds were received, the specific amounts of such funds, and the total of such funds.
ANSWER:
INTERROGATORY NO. 3:Please specifically describe the agreement, arrangement or understanding you had with your mother regarding the funds you received from her which were used in the campaign for the office you now hold.
ANSWER:
INTERROGATORY NO. 4: Please describe all communications (written or parole) you had with David J. Stern, Esquire regarding your mother or the foreclosure litigation brought against her by Citimortgage, Inc. in Dade County, Florida, including the nature, substance and approximate dates of all such communications.
ANSWER:
INTERROGATORY NO. 5:Please describe all communications (written or parole) you had with any person other than David J. Stern, Esquireregarding your mother or the foreclosure litigation brought against her by Citimortgage, Inc. in Dade County, Florida, including the nature, substance and approximate dates of all such communications.
ANSWER:
NOTICE OF THIRD AMENDED CONSOLIDATED
FORMAL CHARGES states:
7. During the campaign for the office you now hold, you knowingly accepted and received a very substantial campaign contribution made for the purpose of influencing the results of the election, whether characterized as a gift or loan, far in excess of the $500 limit established by Ch. 106, Florida Statutes, from your mother (Mignon Gordon) which you used to pay for your campaign, in violation of Chapter 106, Florida Statutes, and Canons 1, 2A and 7C(1) of the Code of Judicial Conduct.
8. As a sitting circuit court judge, on or about November 20, 2009, you knowingly filed a notice of appearance in pending litigation in Dade County, Florida (CitiMortgage, Inc. v. Gordon, Case No. 2009-74992-CA- 01) where you purported to appear to represent your mother in foreclosure proceedings brought against her therein, in violation of Canons 1, 2A and 5G of the Code of Judicial Conduct.
9. As a sitting circuit court judge, you knowingly represented and acted as litigation counsel for your mother in the foreclosure proceeding in Dade County, Florida described above by,inter alia, communicating with counsel for the mortgagee on her behalf, in Osceola County, Florida, in violation of Canons 1, 2A and 5G of the Code of Judicial Conduct.
Marcia Heroux Pounds, Sun Sentinel
August 20, 2010
After months of wrangling with CitiMortgage, Dennis and Joyce Brown got fed up and hired an attorney to fight CitiMortgage’s foreclosure on their Lauderdale Lakes home. The Browns claim they are victims of fabricated documents used to foreclose after CitiMortgage failed to credit them for mortgage payments.
“They ran my blood pressure up so bad,” said Dennis Brown, who hired Fort Lauderdale lawyer Kenneth Eric Trent to fight the foreclosure.
CitiMortgage and its lawyers, David Stern Law Offices, voluntarily withdrew the case against the Browns in Broward County Circuit Court on June 16. But the Browns can’t rest easy. Recently, they’ve received newforeclosure letters from another lawyer representing CitiMortgage.
The Browns’ story is just one example of foreclosures resulting from allegedly fraudulent mortgage assignments and other tactics that “eliminate due process for the homeowner,” Trent said.
He also is suing Stern and his Plantation law firm in federal court in a separate foreclosure case with similar allegations.
In that lawsuit, on behalf of Oakland Park homeowner Ignacio Damian Figueroa, Trent contends that Stern and a mortgage registration firmgenerated fraudulent mortgage documents that are intentionally ambiguous to cloud the real ownership of the Figueroa’s mortgage note.
The foreclosure practices of Stern and two other law firms are under investigation by the Florida Attorney General’s Office. The attorney general recently requested records going back to Jan. 1, 2008, from Stern as well as The Law Offices of Marshall C. Watson, P.A., and Shapiro & Fishman, LLP.
Thousands of Florida homeowners may have lost their homes as a result of improper actions by the firms under investigation. In announcing the probe, Attorney General Bill McCollum, a Republican who is a running for governor, said the law firms may have presented fabricated documents in court to speed the foreclosure process and obtain judgments against homeowners.
Jeffrey Tew, a Miami attorney who represents Stern’s firm, said while the attorney general may have received complaints, there “will not be evidence of fraud.” Due to the large volume of foreclosures, there may have been clerical mistakes, he said. “In past two to three years, the Stern law firm has processed probably 100,000 foreclosures.”
But he disputes that Stern’s law firm fabricated any documents. “I haven’t seen any example where a bank didn’t have a mortgage in default,” Tew said.
Stern represents well known mortgage lenders including Bank of America, Chase, CitiMortgage, Inc., Fannie Mae, Freddie Mac, HSBC, SunTrust, and Wells Fargo. These lenders also are the shareholders of Mortgage Electronic Registration Systems (MERS).
MERS is at the heart of the matter for Trent and other lawyers trying to stop what they view as illegal foreclosures in the nation.
The mortgage registry was created by lenders in the early 1990s to track home loans, including those repackaged as securities and sold to investors. When such loans were in foreclosure, MERS – not the original lender — was often the entity foreclosing. Some lawyers have successfully fought foreclosures by contending that MERS doesn’t own the note, or the borrower’s obligation to repay.
University of Utah law professor Christopher Peterson said MERS mortgage processing system goes against long-standing principles of property law in assigning rights to a note or mortgage. He said the “owner” of a mortgage can’t be the same as the “agent” representing the homeowner, for example.
Yet MERS records “false documents” with names of people who are not executives of the registry system, but often paralegals and clerks of law firms, he said. “It’s an extremely controversial and arguably fraudlent practice,” Peterson said.
Merscorp spokeswoman Karmela Lejarde declined to comment on the criticism of MERS or Trent’s lawsuit, citing company policy not to comment on pending lititgation.
Tew, who represents Stern’s Law Offices, called Trent’s lawsuit “fiction.” He points to Florida’s 5th District Court of Appeal that ruled in July against a homeowner who tried to fight foreclosure on the basis that MERS didn’t own the note or mortgage.
For the Browns’, foreclosure troubles began with not getting credit for their payments fromCitiMortgage, their mortgage servicer.
The couple says they couldn’t clear it up with the lender. “They were claiming I was behind in payment, but I was paying every month,” said Brown, a carpenter who works for the Broward County School System and whose three children and four grandchildren also live in his Lauderdale Lakes home.
They stopped paying on their mortgage in late 2007 and sought legal help.
Another issue in Browns’ case isthe signature on the assignment of Brown’s mortgage, giving rights to CitiMortgage, Trent said. The signature is by Cheryl Samons, who is identified as “assistant secretary of Merscorp.” In reality, Samons is an employee of Stern’s law office.
Tew confirmed Samons’ employment by Stern, but said “it’s very common for companies to appoint a registered agent. That process is absolutely legal and normal.”
But Trent contends that mortgage assignments need to be made on personal knowledge, not hearsay, to be admissible in court.
The Browns could be facing another foreclosure action, but Trent said he is confident he can fight it again. “They don’t have the basis to foreclose,” he said.
CitiMortgage spokesman Mark Rodgers said privacy restrictions prevent the financial institution from discussing a customer’s foreclosure action. But Rodgers said procedures may resume in cases “where, despite our best efforts, we have been unable to arrive at a satisfactory resolution acceptable to all the parties involved.”
Tew said foreclosure defense lawyers are portraying homeowners who have defaulted on their mortgages as helpless victims. “Everyone is sympathetic, including us, for the homeowner who can’t pay his mortgage. But it’s not fair to paint the banks and law firms that represent them as wearing the black hats.”
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