MUST READ…

EXPLOSIVE

SUPREME JUDICIAL COURT
for the Commonwealth
Case Docket
FRANCIS J. BEVILACQUA, III vs. PABLO RODRIGUEZ
SJC-10880

Excerpt:

There is no contention in this case that U.S. Bank, N.A., the trustee of the securitization trust that claimed to hold the Rodriguez note and associated security instrument did not properly foreclose on the Rodriguez property. U . S . Bank, N,A. failed to show that it was the mortgagee, just as it did in United States Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (MaSS. 2011). Accordingly, U.S. Bank, N.A., was no more capable of passing on good title to the Rodriguez property than a common thief.2

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Knowing what the world knows now on the way they conduct business. If this was a baby stroller or an air bag, do you think they would even question this at all? Selling defective merchandise usually has a mandatory recall.

Now read this carefully and ask yourself this, was this even sound to begin with?

RULES are RULES…

BLOOMBERG-

A Massachusetts man should be allowed to keep property he bought from U.S. Bancorp even though the bank didn’t have the right to foreclose on the previous owner, a lawyer argued before the state’s highest court.

[...]

“If the decision is upheld, and generally applied, it likely will have adverse implications for hundreds or even thousands of Massachusetts property owners if they find themselves in Bevilacqua’s shoes,” the Mortgage Bankers Association wrote in a friend-of-the-court brief.

Read the case below…

Next in the Massachusetts Pipeline: Francis J. Bevilacqua vs. Pablo Rodriguez

On March 30, an Alabama judge issued a short, conclusory order that stopped foreclosure on the home of a beleaguered family, and also prevents the same bank in the case from trying to foreclose against that couple, ever again. This may not seem like big news — but upon review of the underlying documents, the extraordinarily important nature of the decision and the case becomes obvious.

No Securitization, No Foreclosure

From the Baltimore Sun [link]

Freddie Mac has instructed its mortgage servicers to stop referring foreclosure cases to Shapiro & Burson, the Virginia law firm accused of improper handling of more than 1,000 deeds for Maryland homes in foreclosure, the mortgage giant reported this week.

Prosecutors in Prince George’s County began investigating the firm in March after a paralegal formerly employed there filed a complaint alleging that deeds and foreclosure paperwork contained fraudulent signatures.

SFF took a challenge and wanted to see if there were any cases in past years identical to what is plaguing the court systems today. Sure enough the following cases below are ONLY a fraction of what was in store. Just imagine if someone was paying any attention to these cases, perhaps something could have changed the way the lending industry used an electronic device that without a doubt bifurcated the mortgage (deed of trust) from the note!

Same players, same tricks, years later…

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. DUVAL 2004

The moving papers reflect that the plaintiff is not the owner of the subject mortgage nor the note for which said mortgage was given as security. Nor is the plaintiff the lender named in the note and mortgage attached the moving papers. In addition, there is no evidence that the plaintiff was the owner of the note and mortgage at the time this action was commenced by reason of assignment or otherwise. The failure to establish the plaintiff’s ownership of the note and mortgage at the time of the commencement of this action precludes the granting of the instant motion since the plaintiff is unable to establish “the facts constituting the claim(s)” against the known defendants as required by CPLR 3215(f) (Kluge u Fugaqy, 145 AD2d 537,53 6 NYS2d 92; cJ, Federal National Mortgage Association v Yonkelsone, 303 AD2d 546,755 NYS2d 730).

2004

AURORA v. FITZGERALD 2004

MERS v. BAXTER 2004

MERS v. DUVAL 2004

MERS v. EDWARDS 2004

MERS v. PALERMO 2004

MERS v. PARKER 2004

MERS v. POBLETE 2004

MERS v. SCHOENSTER 2004

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. DELZATTO 2005

The moving papers reflect that the above named plaintiff, a/k/a MERS, is not the owner of the subject mortgage nor the note for which said mortgage was given as security. The plaintiff was not the named as the lender in either the note or mortgagee sought to be foreclosed herein. Instead, the plaintiff is identified in the mortgage indenture as a “separate corporation acting solely as nominee for the Lender and Lender’s successors and assigns” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD”

Nor is there any proof that the plaintiff was the owner of the note and mortgage at the time this action was commenced by reason of assignment or otherwise. The failure to establish the plaintiffs ownership of the note and mortgage at the time of the commencement of this action precludes the granting of the instant motion since the plaintiff is unable to establish “the facts constituting the claim(s)” against the defaulting defendants as required by CPLR 3215(f) (Kluge v Fugazy, 145 AD2d 5 37,536 NYS2d 92; a:, Federal National MortgageAssociation v Youkelsone, 303 AD2d 546,755 NYS2d 730).

2005

Aurora v. Fitzgerald 2005

MERS v. DELZATTO 2005

MERS v. GARCIA 2005

MERS v. ROMERO 2005

MERS v. Trapani 2005

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. RAMDOOLAR 2006

As indicated in a prior order dated December 6, 2005 (Burke, J.), the plaintiff, Mortgage Electronic Registration Systems, Inc., was not the owner of the note and mortgage at the titme this action was commenced. The court thus found that the plaintiffs complaint failed to state cognizable claims against the defendants (Kluge v Fugazy, 145 AD2d 537, 536 NYS2d 92; see, also, Katz v East-Ville Realty Company, 249 AD2d 243, 672 NYS2d 308) and that the plaintiff was thus not entitled to the default judgment it demanded on is prior application (CPLR 3215[f1).

On the instant application, the plaintiff purportedly assigned its interest in this subject note and mortgage to an entity known as HSBC Bank USA, National Association as Trustee for MLMI Series 2005-WMC. Since, however, the plaintiff, Mortgage Electronic Services, Inc. was not the owner of the note and mortgage at the time of the purported assignment, the named assignee, HSBC Bank USA, National Association as Trustee for MLMI Series 2005-WMC, acquired no title thereto. The plaintiffs demand for substitution of said entity as the plaintiff in this action is thus denied.

In addition, a substitution of a party plaintiff, such as that demanded here, may not be accomplished by a mere caption amendment. Rather, the substitution of a new party plaintiff would require its participation by its consent andor its formal joinder in this action as contemplated by CPLR 1003 and the filing of an amended complaint by the proposed new plaintiff wherein it alleges facts which constitute cognizable claims against the defendants. Since there was no joinder of the proposed new plaintiff, by consent or service, nor was that any demand by it for leave to serve an amended complaint, the substitution of HSBC Bank USA, National Association as Trustee for MLMI‘ Series 2005-WMC as a party plaintiff would have been precluded even if a valid and recorded assignment by the owner of the note and mortgage had been attached to the moving papers.

2006

MERS v. BIAS 2006

MERS v. Hatwood 2006

MERS v. LONG 2006

MERS v. MORRIS 2006

MERS v. RAMDOOLAR 2006

MERS v. SANFILIPPO 2006

MERS v. WELLS 2006

Excerpt from MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. v. WILLIAMS 2007

The claimant, J.P. Morgan Chase Bank as Trustee for the Home Equity Trust Series 2004- 3, purports to be the assignee, pursuant to a corporate assignment of mortgage/deed of trust executld by Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Decision One Mortgage Company, LLC, of a certain mortgage executed by defendant-mortgagor JULIA WILLIAMS and delivered to MERS as nominee for Intervale Mortgage Corp., which mortgage is alleged to be a subordinate lien to the mortgage previously foreclosed in this action. The claimant’s submissions do not establish the chain of assignments from the original mortgagee, Intervale Mortgage Corp., and the proofs submitted by the claimant are insufficient to establish that it .s the current owner and holder of the note and mortgage that purportedly entitle it to the surplus monics deposited with the Suffolk County Treasurer. The Court notes that even if MERS has authority to assign the subject mortgage (which is not apparent from the submissions), there is no prod2fof its authority to assign the underlying note, which it apparently does not own. Since a mortgage may not be separated from the underlying debt (Merritt v. Bartholick, 36 N.Y. 44,45, 34 HOW. Pr. 129 (1 867), the issue of the claimant’s standing to claim the surplus monies is not established by the record before the Court.

2007

EMC v. WINK-THILMAN 2007

MERS v. WILLIAMS 2007

U.S. BANK v. MOSS 2007

WELLS FARGO v. GISONDA 2007

WELLS FARGO v. GOLDEN 2007

WHOA! Don’t stop here the image below will take you to 2008, 2009, 2010 and 2011 cases…

Excerpts:

Upon resolution of the jurisdictional issue raised by Murphy, he also seeks to add Luciano as a party defendant  because of his alleged “bona fide purchase” of the Millstone Road premises from the plaintiff after foreclosure. The application is granted and Luciano is added as a party defendant to this action because he is a necessary party in order for the Court to grant the proper and necessary relief in this lawsuit. CPLR §1001 provides that persons “who might be inequitably affected by a judgment” shall be made a party. Clearly, Luciano as the present owner of the Millstone Road premises may be “inequitably affected” by the jurisdiction question to be decided. Further, the events surrounding the dates of contract and sale of this property and the sale price are all issues requiring Court scrutiny as to Luciano’s claim to be a “bona fide purchaser” of the property for value.

Here, the closing on the sale of the Millstone Road premises occurred just 3 days prior to Murphy’s order to show cause seeking injunctive relief asserting the lack of knowledge of and Court jurisdiction over this foreclosure action. Obviously, any conversations, discussions, settlement negotiations or other communications between the plaintiff, Murphy and possibly Luciano concerning Murphy’s prospective actions as to this foreclosure action in which Luciano claims no knowledge as well as possible “bad faith” on the part of plaintiff are all issues which the Court needs to explore to assure the foreclosure process was fair and equitable.

Real Property Law §266 provides an innocent “bona fide purchaser” for value is protected in his/her title to property unless he/she had previous notice of the alleged fraud by the seller. See, Karan v. Hoskins. 22 AD3d 638, 803 NYS2d 666 (2nd Dept. 2005); Barnes v. West, 29 Misc3d 1230(A), WL 4941987 (2010). In the event, the Court finds that jurisdiction was not acquired over Murphy, Murphy’s remedy is to be put back into possession of the Millstone Road premises unless it has been purchased by a “bona fide” innocent and good faith purchaser, in which case Murphy’s remedy is limited to damages against the plaintiff.

<SNIP>

Finally, Murphy cannot be charged with equitable estoppel as his actions through his attorney have all been to avoid the very sale which the plaintiff conducted to Luciano. The Court in Bank of America, NA v 414 Midland Ave. Associates, LLC, AD3d ,911 NYS2d 157 (2nd Dept 2010) noted:

“Where an owner knows of a defect in title and fails to address it,
laches does not apply unless the facts are sufficient to constitute equitable
estoppel (see, Krakerv. Roll, 100 AD2d 424,433,474 NYS2d 527;
Washington Temple Church of God in Christ, Inc. v. Global Props &
Assoc., Inc., 15 Misc3d 1142[A], 2007 N.Y. Slip Op 51114[U], 2007 WL
1558884, aff’d. 55 AD2d 727, 865 NYS2d 641). Equitable estoppel arises when
a property owner stands by without objection while an opposing party asserts an
ownership interest in the property and incurs expense in reliance on that belief
(see, Andrews v. Cohen, 221 NY 148, 153, 116 NE 862). The property owner
must ‘inexcusably’ delay in asserting a claim to property knowing that ‘the
opposing party has changed his position to irreversible detriment’ ( Orange &
Rockland Utils v. Philwold Estates, 70 AD2d 338, 343,421 NYS2d 640,
mod. on other grounds 52 NY2d 253, 437 NYS2d 291, 418 NE2d 1310.”

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By ABIGAIL FIELD Posted 4:47 PM 01/26/11

Among the many legal problems now being discovered with the foreclosure documents that banks have been using are false notarizations. The most typical variety of this problem occurs when a notary certifies that the person whose signature appears on a document really did sign it, even though the notary didn’t witness the signing.

While such false notarizing is criminal, I’ve not yet heard of any notaries being charged. However, in Maryland, Steve Lash of The Daily Record reports that 18 current and former notaries have invoked their Fifth Amendment right against self-incrimination in a foreclosure case.

The notaries were brought before the court in proceedings involving a lawyer who didn’t actually sign numerous foreclosure documents that were nonetheless notarized saying he did. The judge excused the notaries from the proceedings after they took the Fifth, and apparently, they aren’t facing prosecution.

L. Randall Wray

Professor of Economics and Research Director of the Center for Full Employment and Price Stability, University of Missouri–Kansas City
Posted: January 24, 2011 09:01 AM

It is now widely recognized that MERS facilitated fraud by lenders, servicers, foreclosers and securitizers. Even on the most charitable interpretation it is very difficult to believe that MERS was not fraudulent by design. So much of the story has already been told that we do not need to rehash all of it here. Let me first concisely summarize the two main problems, and then move on to the most recent developments that put the final nails in MERS’s coffin. I’ll conclude with my argument that there really was some “not so intelligent” design behind all of this. But it is coming back to bite the hand that feeds. The big banks will not survive the monster they created.

Whenever those who are critical of MERS and the banksters post blogs about the multiple frauds, we are attacked by commentators — presumably industry hacks — who try to obfuscate the issues. But recent court cases as well as testimonies before elected representatives confirm our two main claims. First, many or most foreclosures that are taking place are illegal because those doing the foreclosing do not have legal standing. And, second, the practices that created the foreclosure problems also mean that the mortgage backed securities are actually unsecured debt. That means banks must take them back, so they are toast. It all comes back to MERS’s business model: it destroyed the chain of title.

Much of the rest of the fraud and scandal we are witnessing follows on from that because the banks want to foreclose the properties before the securities holders put back the fraudulent securities. The problem is that the destruction of the clear chain of title makes it impossible to foreclose, so the banks used robo-signers to forge documents in the hope they could paper over their home thefts. But homeowners, courts, legislators, securities investors, and title insurers have caught on to the scam. In addition to the forgeries, MERS and bank officials and lawyers are committing perjury in court in the hope that they can confuse the issues sufficiently that they can complete the home thefts.

Via: William Alexander Roper, JR.

By Thom Weidlich – Jan 21, 2011 12:01 AM ET

Massachusetts’ highest court will consider whether a home buyer can rightfully own a property if the bank that sold it to him didn’t have the right to foreclose on the original owner.

The state’s Supreme Judicial Court, which agreed last month to take the appeal, already ruled Jan. 7 that banks can’t foreclose on a house if they don’t own the mortgage. The lower- court decision now under review said the buyer of residential property in Haverhill, Massachusetts, never really owned it because U.S. Bancorp foreclosed before it got the mortgage.

“It appears to be the next step in the conversation,” Paul R. Collier III, who represented the borrower in the earlier case, U.S. Bank v. Ibanez, said in a phone interview.

Like the Ibanez case, the court’s decision may resonate with other states as they grapple with the rights of new homebuyers who may be hesitant to complete a purchase for fear of uncertain title, and with how such a trend may hobble the broader housing market.

Claims of wrongdoing by banks and loan servicers triggered a 50-state investigation last year into whether thousands of U.S. foreclosures were properly documented during the housing collapse. Last year, completed foreclosures in Massachusetts rose 32 percent to 12,233 from 9,269 in 2009, according to Boston-based Warren Group, which tracks local real estate.

Mike “Mish” Shedlock

Monday, January 17, 2011 1:33 AM

The Salt Lake Tribune has an interesting article on Utah’s “Quiet Title Laws”, MERS, clouded titles, and record keeping. Several people won titles free and clear to their houses or condos when debts as great as $417,000 were dismissed in court. Here are a few snips.

A Utah court case in which the owner of a Draper townhouse got clear title to the property, even though he still owed $132,000 on it, raises new legal and financial questions about a property-records database created by mortgage bankers.

The award of a title free of liens means that whoever owns the promissory note on the Draper property — likely a group of faraway investors — no longer has the right to foreclose to collect on a delinquent loan. Indeed, the townhouse owner has sold the property and kept the money. Those who own the promissory note probably don’t even know what occurred.

Last year, the owner of the Draper property contacted attorney Walter T. Keane to help him deal with lenders, though Keane won’t say what the problem was and the owner declined an interview request.

The lawsuit over the title to the townhouse named Garbett Mortgage and Citibank FSB as the holders of promissory notes as recorded on trust deeds filed with the recorder’s office. Integrated Title Services was listed as trustee of the Garbett Mortgage trust deed, while First American Title was the trustee of the CitiBank trust deed.

But there also was another entity listed on the trust deeds called the Mortgage Electronic Registration Systems (MERS). The Mortgage Bankers Association, the Washington, D.C.-based trade group that represents major mortgage lenders, created MERS in the mid-1990s.

Under the state’s quiet title laws, Keane said he did not have to name MERS or serve it legal papers in the lawsuit because it was not the legal owner of title to the property. Those were title companies. In addition, attorneys contend, MERS cannot be the “beneficiary” or holder of the promissory note because it readily has admitted it has no financial interest in any notes or mortgages.

By Paul McMorrow
January 14, 2011

LAST WEEK’S Supreme Judicial Court decision, in which the court upended a pair of Springfield foreclosures and upbraided Wells Fargo and US Bank for maintaining sloppy records is great news for homeowners facing foreclosure. Mortgage-servicing banks, which were in the habit of trading mortgages around like cheap baseball cards, will be forced to slow the pace of foreclosures even more, and carefully verify that they actually own the mortgages on the properties they want to foreclose on. But the decision brings uncertainty to buyers of foreclosed properties — buyers who might not have clear title to their homes anymore.

The SJC decision in Ibanez vs. US Bancorp justifiably beat up on a pair of banks that couldn’t prove they owned mortgages they foreclosed on. The reverberations should be especially strong for mortgage investors and big banks.

Investors who bought up bonds backed by huge pools of mortgages have already been pressuring banks to buy back pools of bad mortgages that they sold before the housing bubble collapsed. These cases only cover a relatively small universe of poorly underwritten loans, but billions of dollars are at stake. Investors burned by mortgage bets have been trying to line up a much more expansive set of lawsuits challenging not the mortgages themselves, but the way big banks handled them after they were sold. The Ibanez decision gives serious weight to those investors, who are eying massive potential payouts.

Below is a document that Lender Processing Services, Inc. or it’s many subsidiaries submits by wire transmission to the foreclosure mill with instructions NOT to name the actual owner of the note on the foreclosure but in the name of the servicer!

“FORECLOSURE SHOULD BE IN THE NAME OF ”

It clearly states the names of the real parties:

• SERVICER
• TRUST
• TRUSTEE/NOTE-OWNER
• BORROWER

A foreclosure is rarely commenced under the “Real Entity.” So why do they keep this from us when they knew all along the real parties of interest? This was only discovered during an actual case or we would have never found this.

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.”

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