DENIED | FORECLOSURE FRAUD | by DinSFLA

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Bondi says court ruling puts foreclosure fraud investigations in jeopardy

Bondi says court ruling puts foreclosure fraud investigations in jeopardy


As if she didn’t know this…hmm

Miami Herald-

An appeals court has denied Attorney General Pam Bondi‘s request to allow the state Supreme Court to review a ruling she says limits her ability to fight foreclosure fraud. Because of this decision, seven pending cases are now threatened, Bondi said Thursday.

In December, the state’s 4th District Court of Appeals ruled that Bondi does not have the authority to investigate a law firm for alleged fraud under the Florida Deceptive and Unfair Trade Practices Act because attorneys’ work on behalf of lenders did not constitute trade or commerce. She asked the court to certify that its decision in the  Law Offices of David Stern, P.A. v. State of Florida case passes upon a question of great public importance so that she could appeal to the Supreme Court.

[MIAMI HERALD]

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Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another

Squires v. BAC | SD Alabama Court Denies BAC MTD – TILA case alleging violation of §1641(g)(1) which is notice of the sale or transfer of a loan from one entity to another


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

WILLIAM C. SQUIRES, et al.,

Plaintiffs,

v.

BAC HOME LOANS SERVICING, LP,

Defendant.

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Attorney General Pam Bondi Asks Fourth District Court of Appeal to Certify Important Foreclosure Investigation Case for Florida Supreme Court Review

Attorney General Pam Bondi Asks Fourth District Court of Appeal to Certify Important Foreclosure Investigation Case for Florida Supreme Court Review


NOTE: Below in her request appears a reference to a link @ #4 Nevada v. LPS, but where is her lawsuit against LPS??

Attorney General Pam Bondi today filed a motion asking the Fourth District Court of Appeal to certify that its recent decision in Law Offices of David Stern, P.A. v. State of Florida passes upon a question of great public importance. In Stern, the Fourth DCA held that the Attorney General’s Office lacked authority under the Florida Deceptive and Unfair Trade Practices Act (“FDUPTA”) to subpoena records of the Stern firm as part of an investigation into possible misconduct in the firm’s handling of foreclosure cases.

Applicable court rules require certification from the Fourth DCA before this office may appeal the Stern decision to the Florida Supreme Court. The Attorney General’s motion asks the Fourth DCA to certify that its decision in Stern passes upon the following question of great public importance: whether the creation of invalid assignments of mortgages by a law firm and subsequent use of such documents by the firm in foreclosure litigation on behalf of the purported assignee is an unfair and deceptive trade practice which may be the subject of an investigation by the Office of the Attorney General.

.
source:  http://www.myfloridalegal.com

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U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment

U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment


NEW YORK SUPREME COURT – QUEENS COUNTY

U.S. BANK N.A.,
Plaintiff,

-against-

MOHAMMED MOLLAH, et al.,
Defendants.

Excerpt:
Defendant, Wells Fargo Home Mortgage s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Record’s motion for an order pursuant to RPAPL 1521 granting summary judgment on its twenty-second affirmative defense that said defendant’s lien is superior to plaintiffs by virtue of the fact that said defendant’s lien is recorded prior to plaintiffs is hereby denied.

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NJDC denies foreclosure law firm’s motion for a gag order silencing homeowners’ counsel in proposed RICO class action against Phelan Hallinan & Schmieg and Wells Fargo

NJDC denies foreclosure law firm’s motion for a gag order silencing homeowners’ counsel in proposed RICO class action against Phelan Hallinan & Schmieg and Wells Fargo


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CHARLES GILES, et al.,
Plaintiffs,

v.

PHELAN, HALLINAN & SCHMIEG,
L.L.P., et al.,
Defendants.

This matter is before the Court on the motion for temporary
restraints and entry of a protective order by Defendants Phelan
Hallinan & Schmieg, P.C., Francis S. Hallinan, Rosemarie Diamond,
Full Spectrum Services, Inc., and Land Title Services of New
Jersey, Inc. (“Moving Defendants”) [Docket Item 5]; the Court
having received briefing in support of the motion by the Moving
Defendants on November 21, 2011 and in opposition to the motion
by Plaintiffs on November 28, 2011; the Court having heard oral
argument on the motion from the Parties at a hearing on November
28, 2011;

For the reasons articulated in the Oral Opinion read into
the record at the November 28, 2011 hearing; and for good cause
shown

IT IS, this 28th day of November, 2011, ORDERED that the motion for temporary restraints and entry
of a protective order shall be, and hereby is, DENIED without
prejudice.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION FOR PROTECTIVE ORDER

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FL 4DCA Says FL AG lacked authority under FDUTPA to issue the subpoena, Reversed

FL 4DCA Says FL AG lacked authority under FDUTPA to issue the subpoena, Reversed


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2011

LAW OFFICE OF DAVID J. STERN, P.A.,
Appellant,

v.

STATE OF FLORIDA, DEPARTMENT OF LEGAL AFFAIRS,
Appellee.

No. 4D10-4708

[December 14, 2011]

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NY Appellate Div – 2nd Dept. “Deutsche Bank Affidavit Fail, Submitted Two Different Versions of an Undated Allonge … Purportedly Affixed to the Original Note”

NY Appellate Div – 2nd Dept. “Deutsche Bank Affidavit Fail, Submitted Two Different Versions of an Undated Allonge … Purportedly Affixed to the Original Note”


Decided on October 4, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

.

REINALDO E. RIVERA, J.P.
ANITA R. FLORIO
JOHN M. LEVENTHAL
SHERI S. ROMAN, JJ.
2010-06483
(Index No. 38303/07)

[*1]Deutsche Bank National Trust Company, etc., respondent,
v
Joell C. Barnett, appellant, et al., defendants.

Joell C. Barnett, Brooklyn, N.Y., appellant pro se.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Joell C. Barnett appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated February 23, 2010, as granted those branches of the plaintiff’s motion which were to strike the answer, for summary judgment on the complaint, and for an order of reference, and denied her cross motion pursuant to CPLR 3211(a)(3) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the plaintiff’s motion which were to strike the answer, for summary judgment on the complaint, and for an order of reference, and substituting therefor provisions denying those branches the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.

In order to commence a foreclosure action, a plaintiff must have a legal or equitable interest in the mortgage. A plaintiff has standing where it is the holder or assignee of both the subject mortgage and of the underlying note at the time the action is commenced (see Bank of N.Y. v Silverberg, 86 AD3d 274; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207; U.S. Bank, N.A. v Collymore, 68 AD3d 752; Countrywide Home Loans, Inc. v Gress, 68 AD3d 709). An assignment of a mortgage without assignment of the underlying note or bond is a nullity, and no interest is acquired by it (see Merritt v Bartholick, 36 NY 44, 45; Bank of N.Y. v Silverberg, 86 AD3d 274; LaSalle Bank Natl. Assn. v Ahearn, 59 AD3d 911, 912). “Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation” (U.S. Bank, N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 108). [*2]Here, the plaintiff failed to establish, as a matter of law, that it had standing to commence the action. The Supreme Court thus erred in awarding the plaintiff summary judgment.

Contrary to the contention of the defendant Joell C. Barnett, an affidavit made by the plaintiff was not required, since the plaintiff was not proceeding upon Barnett’s default (cf. CPLR 3215[f]). However, the documentation submitted failed to establish that, prior to commencement of the action, the plaintiff was the holder or assignee of both the note and mortgage. The plaintiff submitted copies of two different versions of an undated allonge which was purportedly affixed to the original note pursuant to UCC 3-202(2) (see Slutsky v Blooming Grove Inn, Inc., 147 AD2d 208, 212). Moreover, these allonges purporting to endorse the note from First Franklin, A Division of National City Bank of Indiana (hereinafter Franklin of Indiana) to the plaintiff conflict with the copy of the note submitted, which contains undated endorsements from Franklin of Indiana to First Franklin Financial Corporation (hereinafter Franklin Financial), then from Franklin Financial in blank.

The plaintiff also failed to establish that the note was physically delivered to it prior to the commencement of this action. The vice president of the plaintiff’s servicing agent and the plaintiff’s counsel both affirmed that the original note is in the possession of the plaintiff’s counsel. However, the affidavits did not state any factual details concerning when the plaintiff received physical possession of the note and, thus, failed to establish that the plaintiff had physical possession of the note prior to commencing this action (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 108; U.S. Bank, N.A. v Collymore, 68 AD3d at 754). Finally, the Certificates of Resolution and Incumbency submitted to establish the authority of one Eileen Gonzales to execute a September 14, 2007, assignment of mortgage from Franklin Financial to the plaintiff were executed after the subject assignment and, thus, cannot establish that she had such authority at the time the mortgage assignment was made. These inconsistencies raise an issue of fact as to the plaintiff’s standing to commence this action. Thus, the Supreme Court should have denied those branches of the plaintiff’s motion which were to strike the answer, for summary judgment on the complaint, and for an order of reference; the cross motion was properly denied (see US Bank N.A. v Madero, 80 AD3d 751, 753).
RIVERA, J.P., FLORIO, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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Fannie Mae promises to keep families in homes, but instead pressures banks to foreclose

Fannie Mae promises to keep families in homes, but instead pressures banks to foreclose


StopForeclosureFraud received a similar memo from Fannie to GMAC, but this one addressed to JPMorgan Chase [see below]

Feep.com

In early December, a senior executive at Fannie Mae assured members of the Senate Banking Committee in Washington that the mortgage giant was doing everything possible to address the foreclosure crisis.

“Preventing foreclosures is a top priority for Fannie Mae,” Terence Edwards, an executive vice president, told the panel. “Foreclosures hurt families and destabilize communities.”

[FREEP]

“Smoking Gun” letter sent anonymously to SFF.

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NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel

NY Judge Spinner Denies 86 Applications for JUDGMENT OF FORECLOSURE AND SALE Due to No Affirmation by Plaintiff Counsel


Excerpt:

Plaintiff has applied to this Court for the granting of a Judgment of Foreclosure & Sale pursuant to RPAPL § 1351. The express provisions of the Administrative Order of the Chief Administrative Judge of the Courts, no. A0548/10 require the filing of an Affirmation by Plaintiff’s counsel. No such Affirmation has been filed in this proceeding, in derogation of the aforesaid mandate. Accordingly, this application must be denied.

It is, therefore,

ORDERED that the within application by the Plaintiff shall be and the same is hereby denied without prejudice.

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NY Fed probing Goldman Sachs mortgage servicing unit Litton Loan Servicing

NY Fed probing Goldman Sachs mortgage servicing unit Litton Loan Servicing


REUTERS-

The Federal Reserve Bank of New York is investigating whether Goldman Sachs’ (GS.N) mortgage servicing arm did not conduct proper reviews before denying borrowers the option to lower their payments under a government loan modification programme.

In its quarterly filing with the SEC earlier this month, Goldman said regulators had sought information on the foreclosure and servicing protocols and activities of its mortgage servicing unit Litton Loan Servicing.

“We are in possession of the letter and are conducting an inquiry,” a NY Fed spokesperson told Reuters, referring to a letter from a Litton employee sent to the NY Fed by the Financial Times. A spokesperson for Goldman Sachs declined to comment when contacted by Reuters.


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NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT

NJ Appellate Div. Denies U.S. BANK “Vacate Default Judgment, Foreclosing Interest of MERS in Residential Realty” | WACHOVIA BANK v WRIGHT


SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1422-09T2

WACHOVIA BANK, N.A.,
Plaintiff-Respondent,

v.

GREGORY WRIGHT a/k/a
GREG WRIGHT, MRS. GREGORY
WRIGHT
, his wife, and
LAKES AT LARCHMONT
CONDOMINIUM ASSOCIATION
,
Defendants,
and
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC
.,
Defendant-Appellant.
_______________________________

EXCERPT:

PER CURIAM

U.S. Bank National Association (US Bank), as successor in interest to defendant Mortgage Electronic Registration Systems, Inc. (MERS), appeals from a Chancery Division order denying its request to vacate the default judgment against it and foreclosing the interest of MERS in residential realty.1 We affirm.

These facts are taken from the motion record. Defendant Gregory Wright purchased real property on Albridge Way in Mt. Laurel Township (the subject realty) on September 2, 2003. On December 2, 2005, Wright contracted with JP Morgan Chase, N.A. (Chase) for a mortgage and a line of credit secured by a second mortgage on the subject realty. On August 9, 2006, Wright refinanced the Chase debts and withdrew additional equitable value from the realty. He borrowed $210,000 from MERS through its agent, Accredited Home Lenders, Inc. (AHL). Inexplicably, the MERS mortgage was not recorded for over a year, until September 17, 2007.

Continue below…

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MA Dist. Court “Breach of Good Faith, Concerns Over Scheduled Foreclosure Sale” ALPINO v. JPMORGAN

MA Dist. Court “Breach of Good Faith, Concerns Over Scheduled Foreclosure Sale” ALPINO v. JPMORGAN


RONALDO ALPINO and ILMA ALPINO, Plaintiffs,
v.
JPMORGAN CHASE BANK, NATIONAL ASS’N Defendants.

Civil No. 1:10-12040-PBS.United States District Court, D. Massachusetts.

April 21, 2011.

MEMORANDUM AND ORDER

PATTI B. SARIS, District Judge.

I. Introduction

This cases arises after the defendant’s foreclosure of the plaintiffs’ home. The plaintiffs have alleged the following: the defendant breached the duty of good faith and reasonable diligence inherent in every mortgage contract in Massachusetts (Count I); the defendant breached its contract with the United States under the Home Affordable Modification Program (Count II); the defendant violated Mass. Gen. L. c. 244, § 14, regarding the operation of a foreclosure sale (Count III); and the defendant intentionally inflicted emotional distress (Count IV).

On November 24, 2010, the case was removed to federal court on the basis of diversity and federal question jurisdiction, see 28 U.S.C. §§ 1331, 1332, the federal question being the defendant’s alleged breach of the HAMP government contract. The defendant then filed a motion to dismiss. After considering the record, the Court DENIES the motion in part and ALLOWS the motion in part without prejudice to the filing of an amended complaint.

II. Factual Background

A) The Alpinos’ Mortgage:

The Court derives the following facts from the complaint (“Compl.”). For the purposes of this motion to dismiss, the facts are taken to be true. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1941 (2009).

The Alpinos purchased their home in December of 2002. In early 2004, they refinanced their original mortgage loan with a new loan from Washington Mutual Bank, Federal Association (“Washington Mutual”) in the amount of $366,000, secured by a first mortgage on their property. The loan is a 30 year, adjustable rate mortgage, which annually adjusts to 2.65% above the average of the prior 12 monthly yields of the one year United States Treasury Securities.

Like many Americans, when the economy began failing in 2008, the Alpinos had difficulty keeping up on their mortgage payments. Meanwhile in September 2008, Washington Mutual collapsed, and JPMorgan Chase Bank (“JPMorgan”) became its successor in interest to a number of financial interests, including the Alpinos’ mortgage and refinancing loan. The Alpinos contacted JPMorgan to see about adjusting their payments in order to avoid default. They “diligently provided JPMorgan with all the information requested” and “negotiated in good faith for a forbearance agreement, loan modification, or any other way to save their home from foreclosure.” (Compl. ¶ 15.) JPMorgan refused to modify, and when the Alpinos failed to stay current on their mortgage, the bank scheduled a foreclosure sale.

Besides the failure to consider a mortgage payment modification, this action also concerns events occurring at the scheduled foreclosure sale. The Alpinos allege that they arrived at their property around 4:15 pm on March 2, 2010 — fifteen minutes after the scheduled foreclosure auction was supposed to take place — and found a group of approximately twenty people. Mr. Alpino asked some of the people gathered whether the sale had already occurred. He was told that it had not. At that point he went inside the home to call a lawyer. Ms. Alpino remained outside waiting for the auction. After about ten minutes, all but two of the potential purchasers had left. After several more minutes, these remaining two individuals had left as well. According to Ms. Alpino, at no time during this period did an auctioneer appear to fly an auction flag or hold an auction. Nonetheless, the defendant asserts that it conducted a sale and that it “became the absolute title holder to the [Alpinos’ home].” (Def. Mem. at 3.)

B) The Home Affordable Modification Program (HAMP):

In February 2009 the President announced the Homeowner Affordability and Stability Plan to help millions of Americans restructure their mortgages and stay in their homes in the face of impending default and foreclosure. (See Doc. 7, Ex. A (“Supp. Directive”) at 1.) As part of that plan the government created the Home Affordable Modification Program (HAMP).

Among other things, HAMP creates a cost sharing system, whereby the government helps reduce the impact of mortgage modifications on lenders. In exchange, the program asks servicers to standardize and systemize a process for mortgage modification, including the implementation of the net present value (NPV) test. NPV compares the expected cash flow from a modified loan with the cash flow from the unmodified loan. If the expected cash flow from the modified loan exceeds the amount from the unmodified loan, then the loan servicer must modify the loan. Id. at 4. In considering a loan for modification, servicers must perform a “Standard Modification Waterfall.” Id. at 8. This process requires servicers to apply a series of modification steps that work to reduce loan monthly payments to as close as possible to 31 percent of the homeowners gross monthly income. See generally Morris at 10 n.3.

Servicers opt into HAMP by executing Servicer Participation Agreements (SPAs). These agreements between servicers and Fannie Mae, in its capacity as a financial agent for the United States, require servicers to consider all eligible mortgage loans for modification unless prohibited by the rules of an application pooling and servicing agreement (PSA), which establish private label securitizations of mortgages. See id. at 1. But even in the face of PSAs that prohibit modification, “[p]articipating servicers are required to use reasonable efforts to remove any prohibitions and obtain waivers or approvals from all necessary parties in order to carry out any modification under HAMP.” Id.

Despite these provisions, homeowners have not always seen the benefits HAMP was intended to foster. During the first year of operation, HAMP resulted in the permanent modification of only 230,801 mortgages, well below the target objective of three to four million borrowers. See Jean Braucher, Humpty Dumpty and the Foreclosure Crisis: Lessons from the Lackluster First Year of the Home Affordable Modification Program (HAMP), 52 Ariz. L. Rev. 727, 739 (2010). In June 2010, the Government Accountability Office traced some of this underperformance to servicers’ failure to adequately solicit HAMP eligible borrowers and to promptly respond to borrower inquiries regarding HAMP modifications. See U.S. Gov’t Accountability Office, GAO-10-634, Troubled Asset Relief Program, Further Actions Needed to Fully and Equitably Implement Foreclosure Mitigation Programs i (2010).

The defendant allegedly signed an SPA with the government and is a HAMP participant. (Comp. ¶ 19.)

III. Standard

The plaintiffs’ burden is to plead “sufficient matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). “A case has `facial plausibility’ when plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of `entitlement to relief.'” Id. In considering the adequacy of pleadings, a court must take as true the factual allegations in the plaintiff’s pleadings and must make all reasonable inferences in favor of the plaintiff. Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005).

IV. Claims

Because it colors the resolution of the plaintiffs’ state law claims, the Court begins by discussing Count II, the plaintiffs’ claim for breach of the SPA between JPMorgan and the United States.

A) Count II

In order to bring a claim for breach of the SPA between the defendant and the United States Department of Treasury, the Alpinos must demonstrate that they are the third party beneficiaries of this agreement. See Speleos v. BAC Home Loans Servicing, 10-11503, 2010 WL 5174510, * 4 (D. Mass. Dec. 14, 2010)(“Speleos”). Of the number of federal courts to have considered this issue, the majority have held that homeowners are not the intended beneficiaries of these agreements and, thus, do not have a claim for breach of contract arising from lenders or servicers’ failures to abide by the terms of HAMP in considering inquiries related to mortgage modifications. See Speleos at * 3 (collecting cases). Only one court has held to the contrary. See Marques v. Wells Fargo Home Mortgage, Inc., 09-1985-L, 2010 WL 3212131 (S.D. Calif. Aug. 12, 2010) (“Marques”).

In December, this court denied a homeowner third party beneficiary status under HAMP. See Speleos (Gorton, J.). Quoting at length from the HAMP guidelines and Treasury announcements explaining the program, the court held that the borrower could make out a “colorable” claim that HAMP was intended to benefit homeowners. Id. at *5. However, the court ultimately concluded that a finding that homeowners could sue for the breach of an SPA was not consistent with the terms of the contract, which stated that the rights and remedies outlined in the SPA were “for our benefit and that of our successors and assigns.” Id.

The court in Marques arrived at the opposite conclusion after highlighting the numerous requirements HAMP imposes on servicers with regard to their interactions with borrowers. For example, the court noted that the “agreement expressly provides that the `[s]ervicer shall perform the Services for all mortgage loans it services. . . .'” Marques at *5 (quoting SPA at § 2(A)). Thus, the court held: “The Agreement on its face expresses a clear intent to directly benefit the eligible borrowers.'” Marques at *6.

There is compelling evidence that the government intended to benefit homeowners when it implemented the HAMP program, and the contractual language highlighted by the court in Marques requiring servicers to consider all eligible mortgages for HAMP modifications is illustrative of this design. But on its own, this language merely stresses that servicers are required to perform these obligations, not that private parties necessarily have third party beneficiary status to enforce them. As the Supreme Court recently illuminated in reversing the Ninth Circuit’s decision in Cnty. of Santa Clara v. Astra USA, Inc., 588 F.3d 1237 (9th Cir. 2009), rev’d, 131 S.Ct. 1342 (2011), the test for determining whether a plaintiff is a third party beneficiary to a government contract must focus on whether the contract intended to provide the plaintiff with a legal cause of action, not just whether the plaintiff falls within a class of individuals that the contract and its underlying policies seek to benefit. See Astra USA, Inc. v. Santa Clara Cnty., 131 S.Ct. 1342, 1348 (2011)(“The distinction between an intention to benefit a third party and an intention that the third party should have the right to enforce that intention is emphasized where the promisee is a governmental entity.” (quoting 9 J. Murray, Corbin on Contracts §45.6, p. 92 (rev. ed. 2007)(internal quotation marks omitted)).

Guided by this principle, the Court adopts the reasoning in Speleos. Despite HAMP’s general purpose to benefit homeowners, the SPA contains clear language limiting the class of actors who can enforce its terms. It states: “The Agreement shall inure to the benefit of and be binding upon the parties to the Agreement and their permitted successors-in-interest.” (See Pl. Ex. A (“SPA”) at § 11(B).) In the face of this language, and the Supreme Court’s recent holding in Astra, the Alpinos cannot demonstrate that they are the intended beneficiaries of the SPA. For this reason, Count II must be dismissed.

In dismissing Count II, the Court recognizes the difficulty homeowners have had in realizing the benefits of HAMP. HAMP enforcement tends to focus on servicers’ responsibilities after a loan has been modified and seek to protect “the Treasury for overpaying [incentives].” Marques at * 6. There has been little enforcement of the requirement that servicers consider eligible loans for modification. One recent article has noted that part of the problem Treasury has had in encouraging HAMP compliance may lie in the conflict between the incentives of loan servicers and mortgage loan holders. Servicers, who often administer mortgage loans that have been packaged and sold off to third-party holders in complicated securities instruments, will sometimes see greater returns from a foreclosure than a modification, even if the modification increases cash flows to mortgage holders. See, Adam J. Levitin & Tara Twomey, Mortgage Servicing, 28 Yale J. on Reg. 1 (2011).

This does not mean that homeowners like the Alpinos are without a means of redress. Even though the Alpinos cannot bring a claim directly for breach of the SPA agreement, the defendant’s failure to abide by HAMP’s terms may give rise to other causes of action under state law. Specifically, as this Court held in Morris, the Alpinos may have a cause of action under Mass. Gen. L. ch. 93A, the Consumer Protection Act, for the defendant’s failure to consider them for a HAMP modification, as long as they can show that this failure was deceptive or unfair under § 93A. See Morris at 7-8; see also Bosque v. Wells Fargo Bank, N.A., No. 10-10311, 2011 WL 304725, at *7-*8 (D. Mass. Jan. 26, 2011) (denying motion to dismiss Chapter 93A claim arising out of HAMP application). They may also be able to allege that the defendant’s failures amounted to negligence, for HAMP affects the mortgage lender’s legal duties. Speleos at *6 (stating, with regard to HAMP, that a “claim for negligence based on a statutory or regulatory violation can survive even where there is no private cause of action under that statute or regulation.”). In other words, even if the Alpinos do not have a federal cause of action under HAMP, some violations of HAMP may form the basis of state law causes of action. Count II is dismissed without prejudice.

B) Counts I and III

The Alpinos also allege that the defendant breached its “duty of good faith and reasonable diligence.” This claim does not concern HAMP or the SPA; rather, it posits the violation of independent state-law duties inherent in every mortgage contract in Massachusetts. Along with this claim, in Count III, the Alpinos allege that the defendant violated the Massachusetts foreclosure statute by failing to conduct an open public auction under the mortgage’s power of sale. See Mass. Gen. L. c. 244 § 14.

In Massachusetts “the basic rule of law applicable to the foreclosure of real estate mortgages is that `a mortgagee in exercising a power of sale in a mortgage must act in good faith and must use reasonable diligence to protect the interests of the mortgagor.'” Seppala & Aho Const. Co., Inc. v. Petersen, 373 Mass. 316, 367 N.E.2d 613, 616 (Mass 1977)(citations omitted). Technical compliance with the rules governing the foreclosure procedure does not necessarily ensure that a mortgagee has met its obligations under the law. If the mortgagee does not exercise good faith in the execution of a foreclosure, then the foreclosure sale is invalid. See Edry v. Rhode Island Hospital Trust Bank, 201 B.R. 604, 607 (Bankr. D. Mass. 1996) (finding that a mortgagee’s failure to make reasonable efforts to sell the property for the highest value possible invalidated a foreclosure sale). “[T]his responsibility is [even] `more exacting’ where the mortgage holder becomes the buyer at the foreclosure sale. .. .” U.S. Nat. Bank Ass’n v. Ibanez, 458 Mass. 637, 941 N.E.2d 40, 50 n. 16 (citations omitted).

Here, the Alpinos press two different theories of liability under Count I. First, they allege that the defendant breached its duties by failing to consider the Alpinos for a mortgage modification. Second, they argue that the defendant’s alleged failure to hold the auction in a reasonable manner is a violation of the inherent duty of good faith and reasonable diligence.

The Court need not address the first theory of liability, for it finds that the Alpinos have alleged sufficient facts to surpass a motion to dismiss on their second theory. In claims for a breach of the duty of good faith and reasonable diligence, Massachusetts courts have placed emphasis on a mortgagee’s duty to protect the mortgagor’s interests by seeking a reasonable foreclosure price and ensuring that the mortgagor has notice of the sale. For example, in Bon v. Graves, 216 Mass. 440, 130 N.E. 1023 (1914), the Supreme Judicial Court held that the fact that a mortgagee gave notice of a foreclosure sale in publications of limited circulation, along with the mortgagee’s failure to provide the mortgagor with personal notice of the sale, amounted to a breach of its duties under state law. Id. at 1026 (“The duty of one acting under a power of sale in a mortgage is to use that reasonable degree of effort and diligence to secure and protect the interests of the mortgagor, the owner of the equity of redemption and junior lienors, to the observance of which he is bound by the obligation in good faith.”).

Here, the Alpinos have alleged sufficient facts to raise a plausible claim that the defendant failed to make reasonable efforts to protect the Alpinos’ interests by conducting a fair and open foreclosure sale. See Aurea Aspasia Corp. v. Crosby, 331 Mass. 515, 120 N.E.2d 759, 760-61 (Mass. 1954)(finding that the appearance of an auctioneer, who announced the terms of the sale, and flew a red flag was sufficient to conclude that a foreclosure action had occurred). This would implicate the defendant’s duty to protect the plaintiff’s interests by securing the highest possible price in the foreclosure sale and its duty to ensure that the homeowner had adequate notice of the auction, a duty that is heightened in this case because the defendant allegedly purchased the property at issue.

The plaintiffs have also alleged sufficient facts to establish that the defendant may have violated the Massachusetts foreclosure statute. Mass. Gen. L. c. 244, § 14 addresses a mortgagee’s “foreclosure under power of sale.” Id. Among other things, this section assumes the conducting of a public auction. See id. (providing a model form for the “Mortgagee’s Sale of Real Estate,” which includes specific mention of a “Public Auction” and leaves space for the time, date, and location of the auction.). If the defendant indeed failed to hold a public auction at the time and date noticed, then it violated both the letter and the spirit of the provision.

The fact that the foreclosure sale may not have been properly conducted does not necessarily mean that the Alpinos have asserted valid claims for relief. The plaintiffs allege that the defendant’s actions entitle them to, among other things, the issuance of a preliminary injunction preventing their eviction, a preliminary injunction preventing JPMorgan from selling the property, the granting of “unclouded title” in the property, reasonable damages, and a lis pendens. At a hearing before this Court, the plaintiffs stated that they were also seeking rescission of the mortgage contract. The defendant argues that the only cause of action available to the Alpinos is one in equity for redemption of the mortgage and seeks to dismiss Counts I and III because the Alpinos have not explicitly made a claim for redemption.

Massachusetts law recognizes two different types of actions that can be brought by a mortgagor alleging that his property has been transferred in a wrongful foreclosure sale: “[a]n action of tort, and a proceeding to set aside the foreclosure.” Cambridge Sav. Bank v. Cronin, 289 Mass. 379, 194 N.E. 289, 290 (Mass. 1935). The plaintiffs appear not to be pursuing a tort claim, for such a claim would be inconsistent with their stated desire to retain title to their home. See Rogers v. Barnes, 169 Mass. 179, 47 N.E. 602, 604 (Mass. 1897) (explaining that in cases where the plaintiff successfully brings an action in tort for wrongful foreclosure, which is similar to an action for conversion of personal property, the plaintiff surrenders legal title to the property at issue). Instead, the Court understands them to be seeking an invalidation of the foreclosure sale. Historically, this type of claim was styled as a “bill to set aside the foreclosure and redeem.” See Cambridge Savings Bank, 194 N.E. at 290. Nowhere in their complaint do the Alpinos explicitly state their intent to exercise their right of redemption. But, even assuming that this is the only form of relief available, a failure to explicitly seek a right of redemption does not require dismissal of a claim for equitable relief from an allegedly invalid foreclosure sale. Cf. State Realty Co. of Boston v. MacNeil Bros., Co., 334 Mass. 294, 135 N.E.2d 291, 294-95 (Mass. 1956)(finding that there “was no error in overruling the demurrer of” the mortgagee in a suit for redemption where the “bill for redemption [was] somewhat inartifically drawn” but identified the “mortgage and the parties interested in it, allege[d] that the mortgage is upon property of the plaintiff, and offer[ed] redeem.”). A determination that the foreclosure sale was unlawful will void the sale and return the plaintiffs to the position they were in before the sale allegedly occurred. See Ibanez, 941 N.E.2d at 50 (“[O]ne who sells under a power of sale must follow strictly its terms. If he fails to do so there is no valid execution of the power, and the sale is wholly void.” (internal quotation marks and citations omitted)); see also Rogers v. Barnes, 169 Mass. 179, 47 N.E. 602, 603 (Mass. 1897)(noting that a wrongful foreclosure sale gives rise to a “cloud upon the title of the plaintiff to an equity of redemption in the premises, which cannot be removed without some expense to the plaintiff, and the damages might be more than nominal.”).

D) Count IV: Intentional Infliction of Emotional Distress:

As explained by the First Circuit, “[u]nder Massachusetts law, an individual is liable for intentional infliction of emotional distress when he, `by extreme and outrageous conduct and without privilege, causes severe emotional distress to another.'” Limone v. U.S., 579 F.3d 79, 91 (1st Cir. 2009) (quoting Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315, 318 (1976)).

Though the defendant may have engaged in some legally cognizable wrongdoing, and though the Alpinos may have suffered greatly, there is no indication that the defendant’s actions were extreme and outrageous. “The usage of the terms outrageous and extreme have become commonplace in today’s society, however, as used by the Agis Court they mean more than `annoyances, or even threats and petty oppressions.'” Harvard Univ. v. Goldstein, No. 961020, 2000 WL 282537, * 2 (Mass. Super. Ct. Feb. 15, 2000) (quoting Conway v. Smerling, 635 N.E.2d 268, 273 (1994)). The plaintiffs have not alleged that the defendant ever asked for more money than they actually owed on the mortgage, see Beecy v. Pucciarelli, 387 Mass. 589, 441 N.E.2d 1035, 1045 (D. Mass. 1982)(finding that attorney’s negligent actions in bringing a collection action against the wrong defendant did not constitute extreme and outrageous conduct), nor do they claim that they have been removed from their home in the wake of the wrongful foreclosure. At most, the defendant failed to consider the plaintiff for a mortgage modification under HAMP and then failed to operate an open and fair foreclosure sale. The Alpinos claim for intentional infliction of emotional distress is dismissed.

ORDER

The Court ALLOWS the motion to dismiss Count II and Count IV. The Court ALLOWS the request for a lis pendens. The Court DENIES the motion to dismiss the remaining counts.

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[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV. CORP v. STEELE

[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV. CORP v. STEELE


2011 NY Slip Op 50015(U)

BENEFICIAL HOMEOWNER SERVICE CORPORATION, Plaintiff,
v.
STEPHEN STEELE, SUSAN STEELE, OCEAN BANK FSB, “JOHN DOE” AND “MARY ROE” (SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF THE PREMISES BEING FORECLOSED HEREIN), Defendants.

2010-01996.Supreme Court, Suffolk County.

Decided January 7, 2011.Jonathan D. Pincus, Esq, 95 Allens Creek Road, Rochester, New York 14618, Attorneys for Plaintiff.

Steven Tekulsky, Esq., 113 Cedar Street, East Hampton, New York 11937, Attorneys for Defendants Steele.

JEFFREY ARLEN SPINNER, J.

Plaintiff has commenced this action pursuant to Real Property Actions and Proceedings Law Article 13, claiming foreclosure of a mortgage which encumbers real property located at 634 Stephen Hands Path, East Hampton, Suffolk County, New York. In both its Verified Complaint both and the present motion papers, Plaintiff alleges that it is the owner and holder of a Loan Agreement executed by STEPHEN STEELE and SUSAN STEELE dated October 26, 2006 in the principal amount of $92,696.60 which is secured by a Mortgage of the same date and executed by both STEPHEN STEELE and SUSAN STEELE, recorded with the Suffolk County Clerk in Liber 21410 of Mortgages at Page 639. Plaintiff further alleges that Defendants STEELE are in default of their obligations under the Loan Agreement (though the nature and extent of the default is nowhere specified) and it is claimed that the principal sum of $91,614.34 is due and owing, together with interest at the rate of 5.250% per annum as computed from October 1, 2008. Defendants STEELE, through counsel, have timely appeared and have interposed an Answer consisting of general denials as to the allegations of the Plaintiff’s Complaint together with eight affirmative defenses.

Plaintiff has moved for summary judgment in accordance with the provisions of CPLR 3212, having filed a Notice of Motion and supporting papers dated May 18, 2010 and containing a CPLR § 2214(b) seven day notice as well as a request for appointment of a Referee pursuant to RPAPL § 1921. Curiously and in direct derogation of the mandatory provisions of 22 NYCRR § 202.7, Plaintiff has failed to specify or insert a return date for the application and has apparently served its papers with no return date. Not surprisingly, counsel for Defendants has neither answered nor responded thereto, presumably due to the lack of both a stated return date and appropriate notice. The Clerk of the Court apparently scheduled the motion for June 10, 2010, which was administratively adjourned by the Court to November 17, 2010. In the interim period, mandatory foreclosure settlement conferences in accordance with CPLR § 3408 were convened on September 2, 2010 and November 9, 2010 respectively. Thereafter and on December 22, 2010, the Court received an Affidavit from Plaintiff’s counsel which purports to comply with the provisions of Administrative Order no. AO548/10.

It is settled law in New York that the initial burden is placed upon the proponent of an application for summary judgment as to making a prima facie case for entitlement to the relief sought, Norwest Bank Minnesota N.A. vs. Sabloff, 297 AD2d 722 (2nd Dept. 2002). Where Plaintiff comes forward with the mortgage at issue together with the underlying note or bond coupled with evidence of the alleged default, it establishes its prima facie right to judgment as a matter of law, Household Finance Realty Corporation of New York vs. Winn, 19 AD3d 544 (2nd Dept. 2005), Fleet National Bank vs. Olasov, 16 AD3d 374 (2nd Dept. 2005), leave to appeal dismissed 5 NY3d 849 (2005), Gateway State Bank vs. Shangri-La Private Club For Women, 113 AD2d 791 (2nd Dept. 1985), aff’d 67 NY2d 627 (1986). Once such a prima facie showing has been made, the burden shifts to the party opposing the application to come forward with sufficient evidence to controvert the summary judgment motion by demonstrating the existence of a genuine triable issue of fact, Barcov Holding Corp. vs. Bexin Realty Corp., 16 AD3d 282 (1st Dept. 2005). For the reasons hereinafter set forth, the Court finds that Plaintiff has failed to satisfy its burden of setting forth a prima facie case for entitlement to the relief it seeks.

The copy of the mortgage appended to Plaintiff’s moving papers bears the signatures of both STEPHEN STEELE and SUSAN STEELE and contains an acknowledgment by a notary public. However, the copy of the Loan Agreement that is appended to Plaintiff’s papers raises disturbing issues. That instrument bears the date of October 26, 2006 and recites a principal amount of $92,696.60. The Loan Agreement clearly reflects Defendant STEPHEN STEELE as the sole obligor thereunder but, most glaring of all, the Loan Agreement bears no signature whatsoever. General Obligations Law § 5-701 requires promises such as those contained in the Loan Agreement to be both in writing and signed by the party to be charged [G.O.L. § 5-701(a)(1)]. This Court must question how, under the circumstances presented here, Plaintiff can, with unbridled temerity, demand enforcement of the Loan Agreement against Defendant STEPHEN STEELE, who has not executed that instrument and against Defendant SUSAN STEELE, who is not even a party to that agreement. The most cursory reading of these instruments reveal the obvious facts as set forth above. This posture by Plaintiff strains credulity and causes the Court to seriously question Plaintiff’s good faith in commencing this action.

Distilled to its essence, a mortgage is a conveyance of an interest in land that is expressly intended to constitute security for some obligation, most commonly an indebtedness, Burnett v. Wright 135 NY 543, 32 NE 253 (1895). It follows logically then that in order for a mortgage to be valid and subsisting, there must be an underlying obligation that is to be secured by an interest in the real property, owed by the obligor to the obligee, which contains both the right of the obligee to foreclose and the right of the obligor to redeem, Baird v. Baird 145 NY 659, 40 NE 222 (1895), R.H. Macy & Co. v. Bates 280 AD 292, 114 NYS 2d 143 (3rd Dept. 1952). Absent these essential elements, a valid mortgage cannot exist because it is the underlying obligation which gives rise to the validity of the mortgage as a lien upon the real property. Here, the Loan Agreement that has been presented to the Court facially appears to run counter to New York’s Statute of Frauds, G.O. L. § 5-701. Since there has been presented to this Court no valid underlying obligation and no further explanation, the mortgage appears to fail as a matter of law.

This situation is all the more disturbing when it is considered that the sworn statements contained in the both the Complaint and the Affidavit in Support Of the Motion for Summary Judgment expressly and falsely assert that Defendant SUSAN STEELE executed the Loan Agreement. This is compounded by the sworn statement of Shana Richmond, Plaintiff’s foreclosure specialist, which is dated April 28, 2010 and which contains the same painfully obvious mis-statements of fact. Going further, Plaintiff’s counsel has submitted an Affirmation dated December 2, 2010 which purports to comply with Administrative Order no. AO548/10 in which he ratifies and confirms, in essence, the incorrect assertions in the Complaint and the Summary Judgment application. Aside from the papers themselves, it appears that counsel’s affirmation runs afoul of the provisions of 22 NYCRR § 130-1.1.

An action claiming foreclosure of a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investment Co. 274 NY 215 (1937), and the very commencement of the proceeding invokes the equity jurisdiction of the Supreme Court. Thus, in order to obtain equitable relief, the applicant must come before the Court with clean hands, else such relief will be denied. Thus, where a party comes before the Court and is shown to have acted in a manner which is offensive to good conscience, fairness and justice, that party will be completely without recourse in a court of equity, no matter what his legal rights may be, York v. Searles 97 AD 331 92nd Dept. 1904), aff’d 189 NY 573 (1907). Stated a bit differently, in order to obtain equity, one must do equity.

Here, it is irrefutable that Defendant SUSAN STEELE was not a party to the Loan Agreement and certainly did not execute the same. It is equally indubitable that Defendant STEPHEN STEELE did not execute the Loan Agreement that has been presented on this application. Nonetheless, Plaintiff has vigorously prosecuted this action, demanding foreclosure of the mortgage as well as money damages against both named Defendants. Under these circumstances, the Court is compelled to conduct a hearing to determine whether or not Plaintiff has proceeded in good faith and what sanction, if any should be imposed should the Court find a lack of good faith.

It is, therefore,

ORDERED that the Plaintiff’s application for summary judgment and other relief is hereby denied; and it is further

ORDERED that a hearing shall be held in this matter, at which all counsel and parties shall appear, which shall not be adjourned except by the Court; and it is further

ORDERED that said hearing shall be held on March 16, 2011 at 2:30 p.m. in Courtroom 229-A, Supreme Court, 1 Court Street, Riverhead, New York; and it is further

ORDERED that Plaintiffs’ counsel shall, within ten days after entry hereof, serve a copy of this Order with Notice of Entry upon all parties in this action as well as all counsel who have appeared in this action.

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Minnesota Dist. Court DENIES BAC, MERS MTD “TILA VIOLATION” LABELLE v. AMERCIAN BROKERS CONDUIT

Minnesota Dist. Court DENIES BAC, MERS MTD “TILA VIOLATION” LABELLE v. AMERCIAN BROKERS CONDUIT


UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Ann LaBelle and Daniel LaBelle,
Plaintiffs,
v.
American Brokers Conduit; BAC
Home Loans Servicing, LP, a Texas
Limited Partnership as Successor in
Interest to Countrywide Home Loans
Servicing, LP; Mortgage Electronic
Registration Systems, Inc., a Delaware corporation
; John and Jane Does 1-10,
Defendants.

Excerpts:

Thus, the authenticity of BAC’s and MERS’ submitted documents is questioned by Plaintiffs. Consequently, at this motion to dismiss stage, the Court will not consider the signed documents which BAC and MERS have submitted. Therefore, holding the Plaintiffs’ allegations as true, the Court finds that Plaintiffs have alleged a violation of TILA which would extend Plaintiffs’ right to rescind to three years. Plaintiffs’ notice of rescission was sent June 13, 2009, within three years of the transaction.

<SNIP>

BAC contends that it is simply a servicer of the loan and has never owned a pecuniary interest, and that the true owner of the obligation is Freddie Mac. Once again however, Defendants rely on documents outside of the pleadings to prove their point. Defendants have submitted an affidavit stating that Freddie Mac is the true owner of the mortgage. This Court will not consider this affidavit for the purposes of this motion to dismiss. Plaintiffs Amended Complaint alleges that BAC maintains a pecuniary interest in the loan. Furthermore, Plaintiffs’ Amended Complaint references a letter from BAC’s counsel which states that BAC is the true owner of mortgage obligation. Taking Plaintiffs’ allegations as true, Plaintiffs have pled facts sufficient to establish that BAC is an assignee, against whom Plaintiffs may seek rescission.

Continue reading below…

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WA STATE | In Re: JACOBSON “No Real Party In Interest, No Standing” RELIEF FROM STAY DENIED

WA STATE | In Re: JACOBSON “No Real Party In Interest, No Standing” RELIEF FROM STAY DENIED


Via: BankClassActions

UNITED STATES BANKRUPTCY COURT
WESTERN DISTRICT OF WASHINGTON

FOR PUBLICATION
In re:
PETER A. JACOBSON and
MARIA E. JACOBSON,

Debtors.

No. 08-45120

DECISION ON RELIEF FROM STAY

Excerpts:

Before the court is a motion for relief from the automatic stay of § 362(a)2 to enforce a deed of trust on the Debtors’ residence. As it was neither brought in the name of the real party in interest, nor by anyone with standing, the motion for relief from stay will be DENIED.

<SNIP>

Assuming the exhibits to the motion are authentic and are the same as those intended to have been attached to the declaration, the note is indorsed in blank. Without more, that and possession (rather than mere custody) suggests that Wells Fargo is the holder of the note. RCW 62A.3-20114 and 3-30115. Nothing in the record establishes on whose behalf (if other than its own) Wells Fargo Document Custody possesses the note; that (and verification of current possession and present ability to produce the original, if required) would have to come from Wells Fargo.

Nor does anything in the record establish UBS AG’s authority to enforce the Debtors’ note, for whomever holds it; and thus to foreclose the deed of trust. The declaration states that UBS AG is “servicing agent,” a term with no uniform meaning, and no definition cited. At a minimum, there must be an unambiguous representation or declaration setting forth the servicer’s authority from the present holder of the note to collect on the note and enforce the deed of trust. If questioned, the servicer must be able to produce and authenticate that authority.

UBS AG has not shown that it has standing to bring the motion for relief from stay or authority to act for whomever does.

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S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING

S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING


JAMES KEITH HOOTEN, et al. GERRY RENEE HOOTEN, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

Cause No. 1:09cv491-LG-RHW.

United States District Court, S.D. Mississippi, Southern Division.

January 11, 2011.

MEMORANDUM OPINION AND ORDER DENYING SUMMARY JUDGMENT

LOUIS GUIROLA Jr., District Judge.

BEFORE THE COURT is Defendant Ocwen Loan Servicing, LLC’s Motion for Summary Judgment [30]. Plaintiffs James Keith and Gerry Renee Hooten initiated this action against their mortgage holder after their home was lost in a tax sale. Ocwen argues (1) it owed no contractual duty to pay the past due taxes, (2) the Statute of Frauds bars any oral modifications, (3) the Hootens released Ocwen from all claims, (4) and the taxes were not escrowed. The Court has considered the parties’ submissions[1] and the relevant legal authority. The motion is denied.

Continue below…

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Wells Fargo Loses Bid to Dismiss Fraud Claims: GUSTAVO REYES, ET AL., v. WELLS FARGO

Wells Fargo Loses Bid to Dismiss Fraud Claims: GUSTAVO REYES, ET AL., v. WELLS FARGO


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

GUSTAVO REYES, ET AL., Plaintiffs,

v.

WELLS FARGO BANK, N.A., Defendant

[…]

IV. CONCLUSION

For the reasons stated above, Defendant’s Motion is GRANTED in part and DENIED in part
as follows: 1) the Motion is GRANTED as to Plaintiffs’ claim for breach of contract/breach of the
implied covenant of good faith and fair dealing, which is dismissed for failure to state a claim.
Because the Court concludes that Plaintiffs cannot state a claim by amending their complaint, this
claim is dismissed without leave to amend; 2) the Motion is GRANTED as to Plaintiffs’ claim for
restitution/rescission except as to Plaintiffs’ March payment, as to which Plaintiffs state a claim.
Otherwise, the claim is dismissed without leave to amend; 3) the Motion is DENIED as to Plaintiffs’
claim under the Rosenthal Act; and 4) the Motion is DENIED as to Plaintiffs’ unfair competition
claim under Cal. Bus. & Prof. Code §§ 17200 et seq.

IT IS SO ORDERED.

Dated: January 3, 2011

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[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES

[NYSC] NY JUDGE DENIES 42 FORECLOSURE CASES “HAMP, AFFIDAVIT” ISSUES


EXCERPT:

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.

Read each below as some are worded differently…

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Law Offices of David J. Stern Files a Notice of Appeal with 4th DCA of Florida Against AG Subpoena

Law Offices of David J. Stern Files a Notice of Appeal with 4th DCA of Florida Against AG Subpoena


LAW OFFICES OF DAVID J. STERN, P.A.
vs.
THE STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS,

NOTICE OF APPEAL

NOTICE IS GIVEN that Petitioner/Appellant LAW OFFICES OF DAVID J. STERN, P.A. appeals to the Fourth Court of Appeal the Order on Petitioner’s Amended Petition to Quash the Investigative Subpoena Duces Tectum Issued by Florida’s Attorney General

Continue below…

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*BREAKING* Florida judge denies Law Office of David J. Stern motion to quash subpoena

*BREAKING* Florida judge denies Law Office of David J. Stern motion to quash subpoena


This is a major victory for Florida residents.

Florida Judge Eileen O’Connor denied Law Office of David J. Stern motion to quash a subpoena from Florida Attorney General Bill McCollum in connection with the AG’s investigation into several of the state’s foreclosure firms.

Will add more to this as it comes in.

.

.

David-J-Stern-AG-Subpoena

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Posted in foreclosure, foreclosure fraud, foreclosure mills, foreclosures, Law Offices Of David J. Stern P.A., STOP FORECLOSURE FRAUDComments (3)

Countrywide’s Angelo Mozilo Must Face Trial in SEC Suit, U.S. Judge Rules

Countrywide’s Angelo Mozilo Must Face Trial in SEC Suit, U.S. Judge Rules


I’m really waiting to see who else will join Madoff with “Racketeering”?

By Edvard Pettersson – Sep 17, 2010 12:01 AM ET

Countrywide Financial Corp. former Chief Executive Officer Angelo Mozilo must face trial on regulators’ claims he misled investors about risks tied to subprime lending, a judge ruled.

U.S. District Judge John F. Walter in Los Angeles yesterday denied requests by Mozilo and two other former senior Countrywide executives, David Sambol and Eric Sieracki, for a ruling that there were no genuine issues to be tried. The case is now set for a jury trial in October.

“It remains to be seen whether the Securities and Exchange Commission will be able to convince a jury that defendants’ statements were indeed misleading and material,” Walter said in his decision. “At the summary judgment stage, the judge’s function is not himself to weigh the evidence and determine the truth of the matter.”

The SEC sued Mozilo, 71, in June 2009, saying he publicly reassured investors about the quality of Countrywide’s loans while he issued “dire” internal warnings and sold about $140 million of his own shares.

Mozilo is the most prominent executive targeted by U.S. regulators examining the subprime mortgage crisis. He co-founded Countrywide in 1969 and built it into the nation’s biggest mortgage lender, helping trigger the subprime bubble by offering loans to customers with below-average credit scores.

‘Flying Blind’

He wrote in an e-mail that Countrywide was “flying blind” and had “no way” to determine the risks of some adjustable- rate mortgages, according to the SEC complaint.

Continue reading…. BLOOMBERG

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Posted in bloomberg, concealment, CONTROL FRAUD, corruption, countrywide, foreclosure, foreclosure fraud, foreclosures, investigation, mbs, mozillo, rmbs, stopforeclosurefraud.com, sub-prime, trade secrets, Violations, Wall StreetComments (0)

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!

MERS FAILS AS NOMINEE, AUTHORITY TO TRANSFER OWNERSHIP OF NOTE!


NEW YORK SUPREME COURT NASSAU

In support of its standing to maintain the action when the action was commenced is an “Assignment of Mortgage” executed by MERS as nominee of Home Funds Direct which includes a provision indicating the assignment is TOGETHER with the bond or note. . . ” . Not only has plaintiff failed to establish MERS’ right as a nominee for purposes of recording to assign the mortgage, more importantly, no effort has been made to establish the authority of MERS, a non-party to the note, to transfer its ownership. Without establishing ownership of the note at the time the action was instituted, the plaintiff lacked a right to maintain the action.

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Posted in bank of new york, chain in title, concealment, conspiracy, CONTROL FRAUD, corruption, dismissed, foreclosure, foreclosure fraud, foreclosures, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, rmbs, securitization, servicers, stopforeclosurefraud.com, Supreme Court, trusteeComments (0)

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