EILEEN W. HOLLOWELL | FORECLOSURE FRAUD | by DinSFLA

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LETTER TO AZ ATTORNEY GENERAL HORNE RE: VASQUEZ CERTIFIED QUESTION

LETTER TO AZ ATTORNEY GENERAL HORNE RE: VASQUEZ CERTIFIED QUESTION


REQUIRED READING.

 

RE:

Brief of Amicus Curiae State of Arizona, Constituting the Opinion of the Arizona Attorney General, to the Arizona Supreme Court in Vasquez Deutsche Bank National Trust Company, as Trustee for Saxon Asset Securities Trust 2005-3; Saxon Mortgage, Inc. (“DBNTC”), No. CV 11-0091-CQ (Ariz. S. Ct. 2011), Certified Question from Bankruptcy Case, In re Vasquez, 4:08-bk-15510-EWH (Bky. D. Ariz Tucson)

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AZ AG Horne Files Amicus Brief With Supreme Court Favoring Homeowners – IN RE: VASQUEZ

AZ AG Horne Files Amicus Brief With Supreme Court Favoring Homeowners – IN RE: VASQUEZ


Read this entirely. It’s all about the TITLE today, tomorrow and the future to come.

H/T ForeclosureBlues & LivingLies

CASE IS SCHEDULED FOR ORAL ARGUMENT ON SEPTEMBER 22, 20011 IN TUCSON, AZ. CONTRARY TO RUMOR, DO NOT EXPECT A RULING FROM THE COURT ON THAT DATE. THE SUPREME COURT OF ARIZONA WILL TAKE AS MUCH TIME AS IT NEEDS TO MAKE THE DECISION.

JUDGE HOLLOWELL HAS CERTIFIED TWO QUESTIONS ESSENTIAL TO THE OUT COME OF HUNDRED OF THOUSANDS OF FORECLOSURE CASES. ATTORNEY GENERAL THOMAS C HORNE HAS SUBMITTED AN AMICUS (FRIEND OF THE COURT) BRIEF ADVOCATING A FAVORABLE RESULT FOR THE PROTECTION OF THE TITLE SYSTEM, THE MARKETPLACE AND BORROWERS.

The case is Julia Vasquez v Deutsch Bank National Trust Company, as Trustee for Saxon Asset Securities Trust 2005-3; Saxon Mortgage, Inc., and Saxon Mortgage Services, Inc. Supreme Court Case No CV 11-0091-CQ, U.S. Bankruptcy Court Case No: 4:08-bk-15510-EWH. Assisting in the writing of the Amicus Brief were Carolyn R. Matthews, Esq., Dena R. Epstein, Esq., and Donnelly A. Dybus, Esq..

In a a very well -written and well reasoned brief, the Arizona Attorney general takes and stand and makes a very persuasive case contrary to the tricks and shell games of the pretender lenders. It also addresses head-on the contention that that a negative ruling to the banks will cause financial disaster. Just as we have been saying for years here on these pages, the AG makes short shrift of that argument. And the AG takes the bank to task on their “spin” that stopping the foreclosures will have a chilling effect on the housing market and therefore the economy. The absurdity of both positions is exposed for what they are — naked aggression and greed justifying the means to defraud and corrupt the entire housing market, financial industry and the whole of the consumer buying base in this and other countries.

Of particular note is the detailed discussion in the Amicus Brief regarding the recordation of interests in real property. While the brief does not directly attach perfection of liens that violate the provisions of Arizona Statutes, the implications are clear: If the public record does not contain adequate disclosure as to the identity of the interested parties, the document is neither properly recorded, nor is the party seeking to enforce such a document entitled to use that document as though it had been recorded.

The use of a double nominee method of identifying the straw-man beneficiary (usually MERS) and a straw-man “lender” (usually the mortgage originator  that was acting only as a conduit or broker) leaves the public without any knowledge as to the identities of the real parties in interest. In the case of a mortgage lien, if it is impossible to know the identity of the party who can satisfy the lien, then the lien is not perfected. The same reasoning holds true with any other document required to be recorded, to wit:

PUBLIC POLICY OF ARIZONA AGAINST FORECLOSURES: The AG also meets head on the obvious bias in the courts in which the assumption is made that that it is somehow better for society to speed along the foreclosures. Not so, says the AG:

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IN RE: VASQUEZ | ORDER CERTIFYING STATE LAW QUESTIONS TO THE ARIZONA 16 V. SUPREME COURT “Who Owns the Note?”

IN RE: VASQUEZ | ORDER CERTIFYING STATE LAW QUESTIONS TO THE ARIZONA 16 V. SUPREME COURT “Who Owns the Note?”


Show some love to Judge Eileen W. Hollowell!

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ARIZONA

JULIA V. VASQUEZ,
Plaintiff

vs.

SAXON MORTGAGE, INC.;
SAXON MORTGAGE SERVICES,
INC.; DEUTSCHE BANK
NATIONAL TRUST COMPANY
AS TRUSTEE FOR SAXON
ASSET SECURITIES TRUST
2005-3
Defendants.


EXCERPT:

The Certifying Court has reviewed the proposals by the parties and certifies the following questions to the Arizona Supreme Court under A.R.S. § 12-1861 and Ariz. S. Ct. Rule 27(a)(3)(A):

(1) Is the recording of an assignment of deed of trust required prior to
the filing of a notice of trustee’s sale under A.R.S. § 33-808 when
the assignee holds a promissory note payable to bearer?

(2) Must the beneficiary of a deed of trust being foreclosed pursuant to
A.R.S. § 33-807 have the right to enforce the secured obligation?


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IN RE FONTES | Arizona Bankr. Court Appellate Panel Slams Standing “MERS Assignment, HSBC Affidavit”

IN RE FONTES | Arizona Bankr. Court Appellate Panel Slams Standing “MERS Assignment, HSBC Affidavit”


In re: CARLOS RAMON FONTES and EVA MARIE FONTES, Debtors.
CARLOS RAMON FONTES; EVA MARIE FONTES, Appellants,
v.
HSBC BANK, USA, NA; DIANNE CRANDELL KERNS, Chapter 13 Trustee, Appellees.

BAP No. AZ-10-1345-JUMKPa, Bk. No. 08-13133.

United States Bankruptcy Appellate Panel, Ninth Circuit.

.

Argued and Submitted on February 17, 2011 at Phoenix, Arizona. April 22, 2011.

Ronald Ryan, Esq. argued for Appellants Carlos and Eva Fontes Steven D. Jerome, Esq. of Snell & Wilmer LLP argued for Appellee HSBC Bank USA, NA Craig Morris, Esq. argued for Appellee Dianne Crandell Kerns.

Before: JURY, MARKELL, and PAPPAS, Bankruptcy Judges.

EXCERPT:

A. HSBC’s Theories

HSBC argues that we should affirm the court’s decision on the ground that debtors’ statements in their schedules and confirmed plan regarding ASC were judicial admissions[9] that HSBC had standing to bring the motion for relief from stay because ASC was HSBC’s loan servicer. HSBC further argues that the doctrine of judicial estoppel[10] should bar debtors from challenging HSBC’s standing because debtors acknowledged their debt to ASC, HSBC’s loan servicer, in their schedules and plan. Thus, HSBC maintains that debtors should not be able to take an inconsistent position in the context of the relief from stay proceeding. Finally, HSBC contends that despite these grounds for affirming the bankruptcy court’s ruling, it independently met its burden of proof that it had a colorable claim to debtors’ property.[11]

Although we may affirm the bankruptcy court’s decision on any ground fairly supported by the record, Wirum v. Warren (In re Warren), 568 F.3d 1113, 1116 (9th Cir. 2009), we disagree with HSBC that it should prevail under any of these theories.

We first address HSBC’s argument that it proved it had a colorable claim to debtors’ property. The record shows that the bankruptcy court did not directly address this question because it relied on debtors’ confirmed plan for its decision. Regardless, we review standing issues de novo and there is no evidence in the record that supports HSBC’s contention.

The assignment of the deed of trust from MERS, as nominee for Infinity, to HSBC also purported to assign the note. However, HSBC, as MER’S assignee, would take subject to the rights and remedies of its assignor. HSBC overlooks the fact that there is no evidence in the record that shows MERS had any interest in the note to assign. Although the deed of trust gave MERS, as nominee, the power to assign the deed of trust, it did not mention the note, nor did the note itself name MERS as nominee, so MERS could not take this right from the documents themselves. Further, there is no independent evidence that Infinity conveyed the note to MERS. Finally, debtors were not obligated under the note to make payments to MERS. In short, the language in the deed of trust which names MERS as a beneficiary, solely as nominee of Infinity, was insufficient to confer any economic benefit on MERS. In re Weisband, 427 B.R. 13, 20 (Bankr. D. Ariz. 2010).

In Weisband, the bankruptcy court considered whether a MERS assignment of a deed of trust provided the loan servicer with standing for purposes of obtaining relief from stay. The court concluded that MERS had no interest in the note and would suffer no injury if the note was not paid and the deed of trust not foreclosed. As a result, the court concluded that MERS did not have constitutional standing and, if MERS did not have constitutional standing, its assignee could not satisfy the requirements for constitutional standing either. Id.; see also Wilhelm, 407 B.R. at 404[12] (discussing validity of MERS’s assignments related to the note). We do not perceive a different result is warranted under these circumstances.

Moreover, HSBC gives the Williams’ declaration more credence than the rules of evidence allow. Williams’ declaration was conclusory, simply stating that she was familiar with the business records of HSBC and that HSBC was the “holder or servicer” of the note. Williams also stated that HSBC had a contractual right to collect payments and maintain legal actions for the beneficial note holder, either as the current note holder or pursuant to either a Master Servicing Agreement or Power of Attorney. However, neither of those documents were attached to her declaration and there is no other foundation for her to have made these equivocal statements. Finally, the declaration creates an ambiguity because Williams stated that HSBC was “the holder or servicer” of the Note. Which is it? If HSBC was a servicer of the note, it does not necessarily follow that HSBC was the holder of the note under Ariz. Rev. Stat. § 47-1201(B)(21)(a).[13]Weisband, 427 B.R. at 21 (noting that “[E]ven if a servicer has constitutional standing, it may still not be the `real party in interest’ under Fed. R. Civ. P. 17 and may not, therefore be able to satisfy the requirements for prudential standing.”). In short, Williams’ declaration did not establish that HSBC had constitutional or prudential standing or that HSBC had authority to act for any entity that did have standing. See

HSBC’s judicial admission and estoppel theories as grounds for affirmance are also unpersuasive. HSBC seeks to have these doctrines applied to itself vis-a-vis ASC. The only manner in which HSBC links itself to ASC in the record is through its repeated assertion without reference to any evidence that ASC was its “servicer.”[14] No further details are given. Does HSBC mean that ASC was its agent at the time of debtors’ filing? Or, does HSBC mean it somehow became the successor in interest to ASC? The record does not support either theory.

Generally, a loan servicer acts only as the agent of the owner of the instrument. We do not find any evidence in the record that establishes an agency relationship between HSBC and ASC that existed when debtors filed their petition and proposed their plan. The record contains no servicing agreement between ASC and HSBC indicating that ASC was HSBC’s agent, and ASC’s proof of claim did not state that it was acting as the authorized agent for HSBC. Further, MERS’s assignment to HSBC of the trust deed and note is dated September 11, 2009 — a date well past the petition and plan confirmation dates. Thus, the only inference to be drawn from the record is that ASC was acting as servicer for some party other than HSBC when debtors filed their petition.

We also cannot conclude on this record that HSBC established that it was ASC’s successor in interest. A successor in interest is “one who follows another in ownership or control of property. A successor in interest retains the same rights as the original owner, with no change in substance.” Black’s Law Dictionary, (9th ed. 2009). Nothing in the record shows ASC was in the line of assignments of the note or trust deed. In reality, ASC and HSBC appear to be separate unrelated entities at the time of debtors’ filing. Without a direct link to ASC, HSBC cannot take advantage of the judicial admission or estoppel doctrines to bar debtors’ challenge to its standing.

In sum, the record is devoid of evidence that would support any of HSBC’s theories.

[…]

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AZ Bankruptcy Judge Eileen W. Hollowell Sanctions Tiffany & Bosco, Saxon Mortgage

AZ Bankruptcy Judge Eileen W. Hollowell Sanctions Tiffany & Bosco, Saxon Mortgage


Hat Tip to a subscriber on this!

UNITED STATES BANKRUPTCY COURT
Minute Entry
FOR THE DISTRICT OF ARIZONA

Hearing Information:

Date / Time / Room:
Case Number: 4:08-BK-15510-EWH Chapter: 13
Debtor: JULIA V. VASQUEZ
Hearing Information:
THURSDAY, OCTOBER 07, 2010 11:30 AM COURTROOM 430

Bankruptcy Judge: EILEEN W. HOLLOWELL
Reporter / ECR: ALICIA JOHNS
Courtroom Clerk: TERESA MATTINGLY

Matter:

ORDER TO SHOW CAUSE WHY SANCTIONS SHOULD NOT BE IMPOSED PURSUANT TO FED. R. BANKR. P. 9011, 3001, LOCAL BANKRUPTCY RULES 4001 (e) AND 9011-1 AND 11 U.S.C. SEC. 105 FOR CONDUCT RELATED TO A PROOF OF CLAIM FILED 11/28/08 AND MOTION FOR RELIEF FROM STAY FILED ON 1/6/09. (reset from 9/2/10) R / M #: 90 / 0

Appearances:

BEVERLY B. PARKER, ATTORNEY FOR JULIA V. VASQUEZ, Appearing in Phoenix
ERIC J MCNEILUS, ATTORNEY FOR JULIA V. VASQUEZ
LEONARD MCDONALD, ATTORNEY FOR TIFFANY & BOSCO, Appearing in Phoenix
DAVID GOSS FROM SAXON MORTGAGE, ASSISTANT VICE-PRESIDENT OF BANKRUPTCY DEPARTMENT, Present in courtroom in Phoenix

Proceedings:

Mr. McDonald filed a pre-hearing statement yesterday and provides a copy to Ms. Parker.

The court expresses its concerns and explains why the order was issued.

Mr. McDonald walks the court through what he has learned about the matter. Admittedly the proof of claim nor stay relief motion were plead to say that they were done in the name of Saxon Mortgage Servicer as servicer for the beneficial interest of Deutsche.

Court asks Mr. McDonald if his office knew who held the deed of trust.

Mr. McDonald responds that the electronic referral was asked to be done in the name of Saxon. They were not prosecuting a non-judicial trustee sale. They noticed up the trustee sale in the name of Deutsche. If you look at the note and deed of trust they are in the name of Saxon Mortgage.

Court points out that the proof of claim was never withdrawn. No one had the courtesy to inform the debtor that Deutsche Bank should have been served.

Mr. McDonald responds that he did not represent Saxon in the adversary. When they received push back they did not go forward with a trustee sale or prosecute the motion for relief from stay.

Mr. David Goss is sworn and examined by the court. Ms. Parker cross-examines the witness and Mr. McDonald objects.

The witness is excused.

COURT PLACES ITS FINDINGS ON THE RECORD. SAXON TO PAY MS. VASQUEZ’S LAWYERS $5000.00 WITHIN TEN DAYS FROM TODAY OR A NOTICE OF APPEAL IS FILED.

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Another ARIZONA BEAT DOWN from U.S. BK Judge EILEEN W. HOLLOWELL! In RE: JULIA V. VASQUEZ

Another ARIZONA BEAT DOWN from U.S. BK Judge EILEEN W. HOLLOWELL! In RE: JULIA V. VASQUEZ


DinSFLA here: Notice the address Saxon Mortgage Services, Inc. 1270 Northland Drive., Suite 200 Mendota Heights, MN 55120….THIS IS Lender Processing Services address in which I wrote about in this post below..

LENDER PROCESSING SERVICES (LPS) BUYING UP HOMES AT AUCTIONS? Take a look to see if this address is on your documents!

TO: Saxon Mortgage Services, Inc. (“Saxon”) Natalia Shasko, Corey M. Robertus, Tiffany & Bosco, Mark Bosco, Leonard J. McDonald, Jr.

YOU ARE HEREBY ORDERED to appear before this court on Thursday, September 2, 2010 at 1:30 p.m., U.S. Bankruptcy Court, 38 South Scott Avenue, Courtroom 446, Tucson, AZ 85701 and show cause, if any, why sanctions should not be imposed on you pursuant to Fed. R. Bankr. P. 9011, 3001, Local Bankruptcy Rules 4001(e) and 9011-1 and 11 U.S.C. § 105 for the following conduct relating to a proof of claim (“POC”) filed on November 28, 2008, and a Motion for Relief from Stay (“MRS”) filed on January 6, 2009:?

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Posted in conspiracy, CONTROL FRAUD, corruption, deutsche bank, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, Lender Processing Services Inc., LPS, saxon mortgage, securitization, servicers, STOP FORECLOSURE FRAUD, trusteeComments (2)

DEUTSCHE GETS AN ARIZONA BEAT DOWN! In RE: Tarantola

DEUTSCHE GETS AN ARIZONA BEAT DOWN! In RE: Tarantola


U.S. Bankruptcy Judge EILEEN W. HOLLOWELL knew exactly where this was going and put an immediate stop to it.

Deutsche not only created the Allonge after it filed its MRS and falsely represented that it was affixed to the Original, but it also relied on the LPA authorizing the transfer of the Note when substantially identical powers of attorney have been held to be ineffective in reported decisions involving Deutsche.

Deutsche, AHMSI and counsel should, however, treat this decision as a warning. If, in the future, the court is confronted with filings as deficient and incorrect as filed in this case, the court will issue an order to show cause and consider imposing sanctions including, but not limited to, an award of fees to debtors’ counsel for having to oppose motions filed without proper evidence or worse with improper evidence.


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Posted in chain in title, citi, conflict of interest, conspiracy, CONTROL FRAUD, corruption, deutsche bank, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, note, originator, securitization, servicers, trusteeComments (1)


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