Eviction | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "Eviction"

Evicted woman, 101, can’t go home as promised

Evicted woman, 101, can’t go home as promised


HUD says foreclosed Detroit home is unsafe; options being explored

MSNBC-

The federal government now says a 101-year-old Detroit woman it promised could move back into her foreclosed home four months ago can’t return because the building’s unsanitary and unsafe.

Texana Hollis was evicted Sept. 12 and her belongings placed outside after her 65-year-old son failed to pay property taxes linked to a reverse mortgage, The Detroit News reported Sunday. Two days later, the U.S. Department of Housing and Urban Development said she could return.

But now, HUD said it won’t let Hollis move back in because of the house’s condition. She had lived there about 60 years.

[MSNBC]

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Disabled man may be evicted from Oakland, CA home

Disabled man may be evicted from Oakland, CA home


It took one person Tanya Dennis who almost lost her home to come to his rescue and…NOT the government!

Banks got Bailed Out and homeowners got Sold Out!

ABC-

An East Bay homeowner is poised and ready for Alameda County Sheriff’s deputies to arrive to evict him from his foreclosed home. It’s a David versus Goliath story with a legal loophole. The disabled community activist says the bank committed fraud and he’s using an unusual legal tactic to stay in his home.

“I’m not nervous, I’m mad,” said Leonard Wilson.

Wilson has lived in the house for 26 years, but he says an increase in his monthly mortgage payment from $2,000 to $3,900, combined with identity theft, has left him on the verge of homelessness.

“It would be different if I had a place to go. I don’t have anybody left here that’s helping me. The only person that is helping me is Tanya Dennis,” said Wilson.

[ABC]

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Mandi Shaw, Utah Woman With Multiple Disabilities, Asks YouTube To Help Save Her Home (VIDEO)

Mandi Shaw, Utah Woman With Multiple Disabilities, Asks YouTube To Help Save Her Home (VIDEO)


HuffPO-

Mandi Shaw was dealt a seemingly insurmountable hand.

The 47-year-old Utah woman’s heart is at only 20 percent of normal capacity, and the results of her birth defects include clubbed feet, no fingers on her right hand and teeth so soft they fell out, according to Deseret News.

Her disabilities are making it impossible for her to work and nearly impossible to pay her mortgage, according to the news site. Now, Shaw is turning to YouTube for help in keeping their home.

To anyone willing to help, Shaw says in the video: “I would be forever grateful and indebted.”

[HUFFINGTONPOST]

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Must Watch: Rachel Maddow Highlights the Eviction Defence Movement

Must Watch: Rachel Maddow Highlights the Eviction Defence Movement


 by

Rachel Maddow segment focuses on Americas struggle with home foreclosures from the Great Depression to today’s Great Recession. Including how the banks and Wall Street received bail outs and record profits while working families are being throw out of their homes. In defense to the people, Occupy and other community organizations are campaigning to stop foreclosures on families and initiating ‘Occupy Our Homes.’ A nationwide effort to put a moratorium on these foreclosures, showing local efforts from Occupy Rochester and the Steidel’s victory to keep their home.

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Freddie Mac to Suspend Evictions From December 19 to January 2, 2012

Freddie Mac to Suspend Evictions From December 19 to January 2, 2012


Freddie Mac has ordered all evictions involving foreclosed occupied single family and 2-4 unit properties that had Freddie Mac mortgages to be suspended from December 19, 2011 to January 2, 2012.

“If the property is occupied, our foreclosure attorneys will suspend the eviction to provide families a greater measure of certainty during the holidays,” said Tracy Mooney, Senior Vice President of Servicing and REO at Freddie Mac.

The suspension will apply only to eviction lockouts related to Freddie Mac-owned REO properties and will not affect other pre- or post-foreclosure processes.

 

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Fannie Mae will suspend evictions of foreclosed properties from 12/19 to Jan. 2.

Fannie Mae will suspend evictions of foreclosed properties from 12/19 to Jan. 2.


Fannie Mae will suspend evictions of foreclosed properties from 12/19 to Jan. 2. Legal and admin proceedings for evictions may continue-

H/T  Diana Olick

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Cops, movers refuse to foreclose on 103-year-old woman

Cops, movers refuse to foreclose on 103-year-old woman


HEROS! Similar Story: Texana Hollis, 101-year-old woman evicted from her home, Gets Home Back!

RAW STORY-

In a heart warming story just in time for the holiday season, a 103-year-old woman in Atlanta avoided foreclosure of her home Tuesday afternoon, thanks entirely to the kindness of strangers.

According to WSBTV Atlanta, movers hired by Deutsche Bank AG and police were ready to go through with the bank’s request to remove Vita Lee and her 83-year old daughter from their home.

However, when they first got sight of Lee, they had a change of heart and declined to go through with it.

[RAW STORY]

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Dear Mayor Bloomberg, here’s 166,000 reasons not to evict Occupy Wall Street tomorrow

Dear Mayor Bloomberg, here’s 166,000 reasons not to evict Occupy Wall Street tomorrow


166,000 people tell Mayor Bloomberg and Police Commissioner Kelly: Respect the peaceful Occupy Wall Street protesters’ constitution…

The list continues to grow, it may be passing 250K!

.

Russell Simmons even offered to pay!

Looks like things are about to pop off between now and Friday morning, stay tuned for any further developments.

 Click link below for 166,000 signatures

http://www.scribd.com/doc/68702795/166K-OWS-Signatures

 

Even Mark Ruffalo actor/director has shown up for support!

 

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Foreclosure Complaint? Stand By for New Toll-Free Number

Foreclosure Complaint? Stand By for New Toll-Free Number


Like everything else….umm… oh yea! Those things called modifications. This ain’t gonna happen either!

 

WSJ-

It probably won’t include “1-800-ROBO,” but big banks are preparing to launch a toll-free number to find consumers harmed by problems in foreclosure processing.

The effort to find consumers is an outgrowth of the controversy over so-called robo-signing and other problematic foreclosure practices. Last spring, regulators ordered major banks and thrifts to overhaul their foreclosure practices, finding that 14 lenders filed foreclosures with improper documentation and lacked sufficient staff to properly handle distressed borrowers. The banks have now picked independent consultants to identify any borrowers who were harmed by foreclosure-processing problems.

[WALL STREET JOURNAL]

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Texana Hollis, 101-year-old woman evicted from her home, Gets Home Back!

Texana Hollis, 101-year-old woman evicted from her home, Gets Home Back!


Thanks to HUD and Brian Sullivan who was thunderstruck when they understood that a 101-year-old woman was put out of her home!


HuffPo-

DETROIT — A 101-year-old woman who was evicted from her longtime Detroit home after her 65-year-old son failed to pay the mortgage is getting it back, the U.S. Department of Housing and Urban Development said Wednesday.

Texana Hollis was evicted Monday and her belongings were placed outside the home where she had lived for nearly six decades. Her son Warren Hollis said he didn’t pay the bill for several years and disregarded eviction notices.

[…]

[HUFFINGTON POST]

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Helping Texana Hollis, 101-year-old woman evicted from her home

Helping Texana Hollis, 101-year-old woman evicted from her home


Absolutely disgusting, how does anyone allow this to happen? Why didn’t they postpone the eviction? This is wrong and Obama needs to hear about this, one way or another. He has failed her…all Americans (not the bankers).

He is the President and he has the power to stop all of this. 

Instead, it took neighbors to come to her rescue…while evicted out on the curb on a wheelchair!

WXYZ-

DETROIT (WXYZ) – At 101-years-old, Texana Hollis is completely broken hearted.

She has good reason to be. She was evicted from her Southwest Detroit home where she has lived for the past 58 years.

In a wheelchair and suffering from high blood pressure and heart trouble – neighbors say court officers kicked her out of her home and left her sitting on the sidewalk, alongside all of her furniture and belongings.

Texana’s close friend and neighbor, Laurie Ridgell says, “We don’t even treat animals like that in the city of Detroit.”

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Court rulings complicate evictions for lenders in Oregon

Court rulings complicate evictions for lenders in Oregon


“Those issues give credence to Defendan’t argument that this case is better brought as one to quiet title and then for ejectment.”

 

OregonLive-

Another Oregon woman successfully halted a post-foreclosure eviction after a judge in Hood River found the bank could not prove it held title to the home.

Sara Michelotti’s victory over Wells Fargo late last week carries no weight in other Oregon courts, attorneys say. But it illustrates a growing problem for banks  — if the loans’s ownership history isn’t recorded properly, foreclosed homeowners might be able to fight even an eviction.

“There’s this real uncertainty from county to county about what that eviction process is going to look like for the lender,” said Brian Cox, a real estate attorney in Eugene who represented Wells Fargo.

Michelotti’s case revolved around a subprime mortgage lender, Option One Mortgage Corp., that went out of business during the housing crisis. Circuit Court Judge Paul Crowley ruled that it was not clear when or how Option One transferred Michelotti’s mortgage to American Home Mortgage Servicing Inc., which foreclosed on her home and later sold it to Wells Fargo.

[OREGON LIVE]

[ipaper docId=64758413 access_key=key-1wgv40jymxhu95iu3qr6 height=600 width=600 /]

 

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BANK OF NEW YORK vs. KC BAILEY SJC-10801 | MASS. SJC Vacates Summary JDGMT “Housing Court has jurisdiction to consider the validity of the plaintiff’s title as a defense to a summary process action after a foreclosure sale”

BANK OF NEW YORK vs. KC BAILEY SJC-10801 | MASS. SJC Vacates Summary JDGMT “Housing Court has jurisdiction to consider the validity of the plaintiff’s title as a defense to a summary process action after a foreclosure sale”


NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

BANK OF NEW YORK, trustee, [FN1]

vs.

KC BAILEY.

SJC-10801.

April 4, 2011. – August 4, 2011.

Summary Process. Housing Court, Jurisdiction. Jurisdiction, Housing Court, Summary process. Real Property, Record title. Mortgage, Foreclosure. Practice, Civil, Summary process, Summary judgment.

SUMMARY PROCESS. Complaint filed in the Boston Division of the Housing Court Department on January 13, 2009.

The case was heard by Mary Lou Muirhead, J., on a motion for summary judgment.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jennifer Tarr (H. Esme Caramello with her) for the defendant.

Peter Guaetta (Victor Manougian with him) for the plaintiff.

Pamela S. Kogut, for Chelsea Collaborative & others, amici curiae, submitted a brief.

Ilana Gelfman, Richard M.W. Bauer, Nadine Cohen, & Ann Jochnick, for City Life/Vida Urbana, amicus curiae, submitted a brief.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.

DUFFLY, J.

The question we address in this case is whether the Housing Court has jurisdiction to decide the validity of a challenge to a title, raised by a former homeowner as a defense to a summary process eviction action by a party acquiring the property pursuant to a foreclosure sale. The plaintiff, Bank of New York (BNY), asserts that it acquired title to the home of the defendant, KC Bailey, pursuant to foreclosure proceedings. [FN2] Seeking to evict Bailey, BNY filed an action for summary process pursuant to G.L. c. 239, § 1. Bailey’s answer to the complaint alleged, among other claims and defenses, that BNY was not the owner because the sale was not in compliance with the foreclosure statute, due to defective notice, and the deed was thus void. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011). In its motion for summary judgment, BNY argued that the Housing Court lacked jurisdiction to address the claim raised by Bailey’s defense, and that it had made out a prima facie claim for superior possession by virtue of the deed, a copy of which was attached to the complaint. The motion judge agreed; she allowed BNY’s motion, and entered summary judgment in favor of BNY. Bailey appealed from that judgment and we transferred the case to this court on our own motion. Because we conclude that the Housing Court has jurisdiction to consider the validity of the plaintiff’s title as a defense to a summary process action after a foreclosure sale pursuant to G.L. c. 239, § 1, we vacate the allowance of summary judgment and remand for further proceedings.

1. Background and prior proceedings. In 2005, Bailey obtained a mortgage on a home on West Selden Street in the Mattapan section of Boston, a home he had owned and in which he had lived since 1979. The mortgage was obtained from an entity identified as “Mortgage Electronic Registration Systems, Inc. (‘MERS’), solely as nominee for the Lender (America’s Wholesale Lender)” (MERS as “nominee” [FN3]). The record reflects that on March 6, 2007, proceedings for foreclosure by sale were instituted by MERS as “nominee,” and that MERS as “nominee” was the highest bidder at the foreclosure sale. [FN4] Bailey asserts that on March 26, 2007, he discovered that a notice to evict had been affixed by duct tape to the fence surrounding his West Selden Street property.

[FN5] He thereafter filed an action against MERS as “nominee” in the Superior Court seeking to set aside the foreclosure sale. That complaint eventually was dismissed without prejudice for failure to effect timely service. No further description of the Superior Court proceedings is necessary to an understanding of the issues before us, or the context in which they arose.


Returning to the circumstances that led to this Housing Court action, Bailey asserts that he received no notice of, and was unaware of, the sale by foreclosure that took place on March 6, 2007. [FN6] On December 30, 2008, BNY served Bailey with a notice of its intention to terminate his occupancy. When Bailey failed to vacate the property, BNY instituted the underlying action in the Housing Court and, on January 9, 2009, served Bailey with a summary process (eviction) summons. Bailey answered the summary process complaint, alleging in part that his home was “foreclosed without legally sufficient notice under [G.L. c. 244, § 17B.]” [FN7] Bailey asserted in his answer that he had received all personal, business, and legal correspondence for over thirty years at his United States post office box, the same post office box to which all previous correspondence regarding his mortgage had been sent; but he had received at that post office box no notice of an impending foreclosure.


[FN8] Thereafter, BNY filed its motion for summary judgment, claiming that MERS as “nominee” had assigned to BNY the note and the mortgage; that on Bailey’s default BNY had, on March 6, 2007, foreclosed; that BNY was the highest bidder at the foreclosure sale; and that BNY had served Bailey with a notice to quit and a summary process complaint and summons. [FN9] In a memorandum opposing the motion, Bailey contended that BNY’s “ownership” of Bailey’s home “remains in dispute, because notice of the foreclosure sale … was legally insufficient.” Concluding that Bailey’s challenge to the validity of the foreclosure was not within the Housing Court’s jurisdiction, the judge allowed BNY’s motion. The judge reasoned that “[t]he only issue before the [c]ourt is whether the [p]laintiff is entitled to possession,” and because BNY showed that “its deed was recorded prior to the service of the [n]otice to [q]uit,” BNY had established a prima face case for possession.

2. Discussion. We review a decision to grant summary judgment de novo. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

a. Subject matter jurisdiction. [FN10] That the Housing Court has jurisdiction over summary process actions pursuant to G.L. c. 239 is not in dispute. The Housing Court may hear summary process actions brought by those who acquire ownership of property via foreclosure by sale. See G.L. c. 185C, § 3. See also Bech v. Cuevas, 404 Mass. 249 (1989); Duggan v. Gonsalves, 65 Mass.App.Ct. 250, 254 n. 6 (2005) (Housing Court has appropriate jurisdiction over summary process action pursuant to G.L. c. 185C, § 3); Metropolitan Credit Union v. Matthes, 46 Mass.App.Ct. 326, 330 (1999); Commentary to Rule 1 of the Uniform Summary Process Rules, Mass. Ann. Laws Court Rules 705 (LexisNexis 2010-2011) (“Four Departments of the Massachusetts Trial Court have jurisdiction over summary process actions [Superior Court, District Court, Boston Municipal Court and Housing Court]”).

The question, as stated above, is whether, in the course of a summary process action brought in the Housing Court by a party acquiring the property pursuant to a foreclosure by sale, the judge may consider the former homeowner’s defense that the plaintiff’s title is invalid because the foreclosure was not conducted strictly according to the statute. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011). The answer to this question is informed by the historical context of the action for summary process.

Although the Housing Court has only been in existence since 1972, see G.L. c. 185A, inserted by St.1971, c. 843, §§ 1, 27, summary process is a long-standing cause of action. The current summary process statute, G.L. c. 239, § 1, derives from the “summary remedy” statute that has its roots in the beginning of the Eighteenth Century in the Province Laws 1700-1701. See Page v. Dwight, 170 Mass. 29, 31-37 (1897) (discussing evolution of “summary remedy,” St. 1825, c. 89, that provided remedies to “persons having the right of possession of houses and tenements”).

The summary remedy statute was in force when the General Statutes were revised in 1835 and was retained through later revisions, to provide a cause of action to those not in a traditional landlord-tenant relationship. See Page v. Dwight, supra at 34 (statute revised in part so that “in all such cases the like proceedings might be had as if the relation of landlord and tenant had theretofore existed between them. St. 1835, c. 114″). The summary remedy statute, codified in Rev. St. (1836) c. 104, “gave the process only to a ‘person entitled to the premises,’ which required him to prove that he was entitled to this possession, and which said that the defendant should have judgment if the plaintiff failed to prove his right to possession.” Id. at 37. In 1879, legislation was enacted specifically directed at those attempting to gain possession who had acquired property pursuant to foreclosure of the mortgage by sale. See id., citing St. 1879, c. 237.

Challenging a plaintiff’s entitlement to possession has long been considered a valid defense to a summary process action for eviction where the property was purchased at a foreclosure sale. See New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 195 (1906) (in summary process action “by the purchaser at a mortgagee’s sale, the legal title may be put in issue, and it therefore became incumbent upon the plaintiff to establish its right of possession to the land demanded”). See also Sheehan Constr. Co. v. Dudley, 299 Mass. 51, 53 (1937) (in summary process action available to purchaser at foreclosure sale “it is incumbent upon such purchaser to establish his right of possession. The legal title in those circumstances plainly may be put in issue”). We have upheld that principle as recently as 1966, when we said, “The purpose of summary process is to enable the holder of the legal title to gain possession of premises wrongfully withheld. Right to possession must be shown and legal title may be put in issue…. Legal title is established in summary process by proof that the title was acquired strictly according to the power of sale provided in the mortgage; and that alone is subject to challenge.” Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966), citing Sheehan Constr. Co. v. Dudley, supra, and New England Mut. Life Ins. Co. v. Wing, supra.

The Housing Court was established in order to provide “a specialized forum to handle criminal and civil matters regarding housing that arise in the city of Boston.” LeBlanc v. Sherwin Williams Co., 406 Mass. 888, 891-892 (1990). In 1979, the Legislature enacted St.1979, c. 72, § 3, which further defined and expanded the Housing Court’s jurisdiction. See Tedford v. Massachusetts Hous. Fin. Agency, 390 Mass. 688, 693 n. 7 (1984); Boston v. Kouns, 22 Mass.App.Ct. 506, 510-511 (1986). The Housing Court’s jurisdiction over summary process actions is concurrent with that of the District Court and Superior Court. There is nothing in this jurisdictional scheme that supports a conclusion that the Legislature intended to give the Housing Court concurrent jurisdiction over summary process actions, yet preclude its consideration of the long-recognized validity of title defense to summary process.

Our conclusion that the Housing Court may consider the defense promotes the legislative goal of “just, speedy, and inexpensive” resolution of summary process cases. See Rule 1 of the Rules of Summary Process, supra. The pursuit of “speedy and inexpensive” summary process actions is compromised if the Housing Court must stay summary process proceedings while litigation on the validity of the foreclosure proceedings continues in another court. This creates precisely the type of unnecessary delay and inefficiency that the Legislature intended to eliminate when it reorganized the trial courts in the Commonwealth. See G.L. c. 211B; Konstantopoulos v. Whately, 384 Mass. 123, 129-130 (1981).

b. Proof of possession. Having determined that the Housing Court has jurisdiction to decide Bailey’s defense to the summary process action, we now address BNY’s contention that it nevertheless established possession and that the grant of summary judgment in its favor was appropriate.

To prevail on its motion for summary judgment, BNY “had the burden of showing that there are no material facts in dispute regarding its legal title to the property.” Metropolitan Credit Union v. Matthes, 46 Mass.App.Ct. 326, 330 (1999), citing Mass. R. Civ. P. 56(c), 365 Mass. 824 (1974), and Sheehan Constr. Co. v. Dudley, supra at 53-54. BNY contends, without citation to relevant authority, that to meet its burden it had only to prove that the foreclosure deed was recorded prior to service on Bailey of the notice to quit.
[FN11]

[FN11]

In a summary process action for possession after foreclosure by sale, the plaintiff is required to make a prima facie showing that it obtained a deed to the property at issue and that the deed and affidavit of sale, showing compliance with statutory foreclosure requirements, were recorded. See Lewis v. Jackson, 165 Mass. 481, 486-487 (1896); G.L. c. 244, § 15.
[FN12] BNY failed to submit an affidavit of sale “show[ing] that the requirements of the power of sale and of the statute have in all respects been complied with.” Id. [FN13]

Because BNY failed to make out a prima facie showing of possession, and the issues are disputed, the motion for summary judgment should not have been granted.

Conclusion. The decision granting summary judgment for the plaintiff is vacated. The case is remanded to the Housing Court for further proceedings consistent with this opinion.

So ordered.

FN1. For the certificateholders CWABS, Inc., Asset-Based Certificates Series 2005-13.

FN2. We acknowledge the amicus brief of City Life/Vida Urbana, and the amicus brief of the Chelsea Collaborative, Lynn United for Change, and the Merrimack Valley Project, both in support of the defendant.

FN3. Mortgage Electronic Registration Systems acts as nominee and as mortgagee of record for its members and appoints itself nominee, as mortgagee, for its members’ successors and assigns. See Mortgage Elec. Registration Sys. v. Saunders, 2 A.3d 289, 294 (Me.2010), quoting MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 100 (2006) (Kaye, C.J., dissenting in part). In this case, we are not faced with the issue whether MERS may properly be both the mortgagee and an agent of the mortgagee, and we do not decide in which capacity MERS acted here.

FN4. A copy of the notice placed in the newspaper is in the record, but the date is illegible. MERS as “nominee” noticed the foreclosure in the newspaper. In its appellate brief, the Bank of New York (BNY) included a copy of an affidavit from MERS as “nominee,” which states that MERS as “nominee” provided notice of the foreclosure to Bailey via certified mail. The affidavit was not included in the summary judgment record that was before the motion judge, and we do not consider it in our analysis on appeal. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 458-459 (1997); note 13, infra.

FN5. The notice was not included in the record.

FN6. BNY had previously filed a summary process action against Bailey in the Housing Court. On May 10, 2007, however, that action was dismissed without prejudice by agreement of the parties. That action, and the notice preceding it, is dated several months before the June 29, 2007, date of an “assignment of bid for value” purporting to transfer to BNY, as trustee for the certificateholders CWABS, Inc., Asset-Backed Certificates, Series 2005-13, all of the interests of MERS as “nominee” in the West Selden Street property.

FN7. BNY makes much of the fact that Bailey, in his original answer and on appeal, cited G.L. c. 244, § 17B, in support of his claim that notice of the foreclosure was deficient. This statute governs the manner in which notice must be provided in an action for deficiency. It is apparent from his pleadings and arguments that Bailey’s intended reference was to G.L. c. 244, § 14, which sets forth the requirements of notice in connection with a foreclosure by sale. That statute provides, in relevant part:

“The mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person, may, upon breach of condition and without action, do all the acts authorized or required by the power; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners to the address set forth in [G.L. c. 185, § 61], if the land is then registered or, in the case of unregistered land, to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage …” (emphasis added).

Because we look to the substance, rather than the form, of Bailey’s asserted defense, his incorrect citation is not fatal to his claim. See Quinn v. Walsh, 49 Mass.App.Ct. 696, 704 (2000) (label attached to pleadings should not govern their substance). Bailey argued repeatedly that the foreclosing agent failed to provide him proper notice before conducting the foreclosure sale and thus provided sufficient notice to the plaintiff of the defense being asserted. See Clark v. Greenhalge, 411 Mass. 410, 413 n. 6 (1991).

FN8. Bailey’s answer also set forth various counterclaims which were dismissed and are not a subject of this appeal.

FN9. As earlier stated, the record reflects that MERS as “nominee,” not BNY, was the holder of the mortgage on March 6, 2007, and that the foreclosure was conducted by MERS as “nominee,” which was the highest bidder at the foreclosure sale.

FN10. During oral argument, BNY contended that the case might be moot because BNY had foreclosed the mortgage by entry pursuant to G.L. c. 244, § 2, and Bailey therefore could no longer contest BNY’s title based on defective notice of the foreclosure sale. See Grabiel v. Michelson, 297 Mass. 227, 228-229 (1937) (any defect in foreclosure by sale irrelevant after proper foreclosure by entry completed).

In order to foreclose on a mortgage by entry, BNY must have been the mortgagee at the time of entry. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 n. 15 (2011); G.L. c. 244, §§ 1-2. Nothing in the record indicates when or by what means the entry was made, and whether at the time of entry BNY was the mortgagee of the West Selden Street property. It may well be that BNY can establish that it has acquired an assignment of the mortgage despite defects in the foreclosure by sale. On the record before us, we are unable to make this determination.

FN11. In support of its motion for summary judgment, BNY submitted only the foreclosure deed and the eviction notice.

FN12. General Laws c. 244, § 15, provides: “The person selling, or the attorney duly authorized by a writing or the legal guardian or conservator of such person, shall, after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, or the acts of his principal or ward, to be recorded in the registry of deeds for the county or district where the land lies, with a note or reference thereto on the margin of the record of the mortgage deed, if it is recorded in the same registry. If
the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.”

FN13. We do not consider the affidavit submitted by BNY on appeal, which it conceded was not part of the record before the judge. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 458-459 (1997).

END OF DOCUMENT

FULL CASE DOCKET: http://www.ma-appellatecourts.org/display_docket.php?dno=SJC-10801

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Attorneys Save 90-Year Old Woman From Being Evicted After Watching CBS-ATL News Report

Attorneys Save 90-Year Old Woman From Being Evicted After Watching CBS-ATL News Report


CBSATLANTA-

SOUTH FULTON CO, GA (CBS ATLANTA) -

A 90-year old woman was scheduled to be thrown out of her home tomorrow at 1 p.m.

Fulton County Marshals arrived on Katherine Brealond’s doorstep of this morning. They were there to figure out what possessions they were going to have to throw out on the curb tomorrow.

“She was unaware that her home was being foreclosed on,” Fulton County Marshal Antonio Johnson told CBS Atlanta News.

Continue reading [CBS ATLANTA]

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Court delays foreclosure action to Milwaukee ex-marine for six months

Court delays foreclosure action to Milwaukee ex-marine for six months


Talk about stress! Read all about Keon Williams here, then catch up on the latest developments.

JSOnline-

A six-month reprieve has been issued to Keon Williams, the north side man whose home was sold at a sheriff’s sale in January even though he is current on the only mortgage he knew he had.

The agreement filed in court Monday between Williams and attorneys for Harris Bank prevents the bank from concluding its purchase and evicting Williams from the N. 44th St. home until Nov. 12.

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The Foreclosure Crisis Comes To “Glee”

The Foreclosure Crisis Comes To “Glee”


Yes, even “Hollywood” pays a visit to this site from time to time and does a little research! :)’

Expect some commercials coming soon. This is far from over…

Business Insider:

“Glee” last night used the foreclosure-gate crisis that started sweeping the nation after the housing bubble burst to brand one of its newest characters.


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Locks changed on disputed home of ex-marine in Milwaukee

Locks changed on disputed home of ex-marine in Milwaukee


There is a new development to Paying on time, yet facing eviction: an ex-Marine caught in the mortgage meltdown…

From JSOnline-

Keon Williams’ fight to keep his house has taken another strange twist: The Milwaukee man arrived home Monday night to find that the locks had been changed on one of his doors on orders from Harris Bank, even though a court order says he can stay in the house for now.

“They admitted they had sent somebody to change the locks,” Williams’ lawyer, Geoffrey Gnadt, said after an emergency court hearing Tuesday. “They did apologize profusely – but there are costs.”


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Paying on time, yet facing eviction: an ex-Marine caught in the mortgage meltdown

Paying on time, yet facing eviction: an ex-Marine caught in the mortgage meltdown


Same Scenarios…Over and Over and Over again!

JSOnline-

Keon Williams is on the verge of being thrown out of his house – a startling turn of events, considering that for nearly three years since refinancing in 2008, he faithfully paid his monthly mortgage and his property taxes.

“I did everything I was supposed to do, but I’m being evicted,” says Williams, 38, sitting in his neat but sparsely furnished dining room on N. 44th St. “I never would have imagined something like this could happen.”


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ProJO | RI Eviction Stopped By Quick Thinking Providence Police Captain, Attorney

ProJO | RI Eviction Stopped By Quick Thinking Providence Police Captain, Attorney


Lets NOT forget Harmon Law Offices the foreclosure firm in the middle of this is being investigated by Attorney General Martha Coakley.

Providence Journal:

You can’t do it this way. You can’t just show up at a family’s door and tell them to get out with no notice. It’s thuggery.

But it almost happened. If not for some fast moving lawyers who know the territory and a compassionate cop, Angela Martinez and her three children and granddaughter would have been out on Lenox Avenue in Providence Tuesday morning.

“I get up early,” says Martinez. “I was getting my son ready for school, and I saw a big truck out front. There was a guy on the porch with a paper in his hand.”

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If you are buying a Bank of America Short Sale, WATCH THIS

If you are buying a Bank of America Short Sale, WATCH THIS


Via:

If you are buying a Bank of America short sale, you need to watch this to know what to guard against. They have a flaw in the system, they admit it, and they are rather nonplussed about it!!!

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[NYSC] Judge Restrains EMC MTG, MERS From Foreclosing For FRAUDULENT ASSIGNMENTS

[NYSC] Judge Restrains EMC MTG, MERS From Foreclosing For FRAUDULENT ASSIGNMENTS


Helene Hamilton and Sheikh Bey,
Plaintiff( s)

-AGAINST

EMC MORTGAGE CORPORATION, AND
MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC., (“MERS”) AS NOMINEE FOR:
FIRST NATIONAL BANK OF ARIZONA,
Patricia M. Esdinsky, Esq., as an individual,
Janan Weeks, as an individual,

Excerpt:

WHY an Order should not be made and entered herein:

1. Granting Plaintiff Stay, restraining order and vacatur of foreclosure action due to
the lack of standing associated with Assignments of FRAUD. The Defendants did not have
assignment rights to foreclose on the property. The Defendants received foreclosure sale
subject to presentment of Assignments, but failed to address the fact that the Assignments must
precede the filing of the Complaint of the subject property. The Referee sale would not have
taken place if Plaintiffs had discovered this FRAUD earlier.

<SNIP>

ORDERED, that until such time as this matter is heard  that defendants, their agents or attorneys’ actions are restrained from moving forward from pursuing further foreclosure proceedings under Index No. 93 19/03

Read the complete order below…


[ipaper docId=46420291 access_key=key-1j970so6de2vk6ge5u20 height=600 width=600 /]

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`Twilight Zone’ Foreclosure Law Firm Draws Fine, Suits in New York Courts

`Twilight Zone’ Foreclosure Law Firm Draws Fine, Suits in New York Courts


By Thom Weidlich and Karen Freifeld – Dec 8, 2010 12:01 AM ET

Steven J. Baum’s New York foreclosure law firm has attracted lawsuits and fines for its actions during the housing crisis, with one judge likening its conduct to something out of the “Twilight Zone.”

As recently as last month, Baum’s firm, which one lawyer for homeowners said processes about half the foreclosures in New York state, was ordered to pay $14,532.50 in legal fees and costs and a $5,000 fine by Nassau County District Court Judge Scott Fairgrieve in Hempstead, New York.

The judge said that when Paul Raia refused to vacate a Garden City co-op after foreclosure, Baum’s firm filed an eviction petition that misidentified the lender.

“Falsities were contained in five paragraphs out of only ten paragraphs in the entire petition,” Fairgrieve wrote in his Nov. 23 decision.

All 50 U.S. state attorneys general are investigating whether banks, loan servicers and law firms properly prepared documents to justify hundreds of thousands of foreclosures. The probe came after JPMorgan Chase & Co. and Ally Financial Inc.’s GMAC mortgage unit said they would stop repossessions in 23 states where courts supervise home seizures and Bank of America Corp. froze foreclosures nationwide.

Steven J. Baum PC, located in Amherst, New York, just north of Buffalo, has been accused of overcharging, filing false documents and representing parties on both sides of a mortgage transfer. Baum runs the firm his father founded in 1972, according to a fact-sheet provided by Earl V. Wells III, his spokesman.

Syracuse Grad

Baum is a graduate of Syracuse University, got his law degree from the State University of New York at Buffalo and was admitted to practice law in 1987, according to Martindale.com, a legal directory. Baum answered some questions via e-mails.

“Consumer activists and attorneys representing homeowners have their own agenda in this process, including degrading the legal work we conduct on behalf of our clients by using terms like ‘foreclosure mill’ which I find personally and professionally insulting,” he wrote.

At a continuing-education training session a couple of years ago, “Steven Baum himself said they did 49 percent of foreclosures” in the state, Rebecca Case-Grammatico, staff attorney at Rochester, New York-based Empire Justice Center, which represents poor people in foreclosures, said in a phone interview. A complaint in one lawsuit against Baum’s firm says it is “believed to be the largest foreclosure mill in the State of New York.”

Baum declined to comment on the size of his business.

Pillar Processing

A company that processes foreclosure documents shares an address with his law firm. That company, Pillar Processing LLC, is owned by Manhattan private-equity firm Tailwind Capital LLC, according to its website. Brooke Gordon, spokeswoman for Tailwind Capital, declined to comment.

“He’s opposing counsel for us on a huge percentage of our cases,” Meghan Faux, project director of the Foreclosure Prevention Project at South Brooklyn Legal Services, who represents homeowners in predatory-lending cases, said in a phone interview.

New York State Supreme Court Justice Arthur M. Schack in Brooklyn called the firm’s explanations in one case “so incredible, outrageous, ludicrous and disingenuous that they should have been authored by the late Rod Serling.”

Schack threw out the case in part because he said the assignment of the loan had been done improperly. The assignment was made by a Baum lawyer on behalf of Mortgage Electronic Registration Systems Inc. as the nominee for the mortgage bank, according to the judge’s opinion. The same day, the Baum firm represented the buyer of the loan by filing the foreclosure action, the judge said. Schack said it was a conflict for the firm to represent both sides.

‘Parallel Mortgage Universe’

“Steven J. Baum PC appears to be operating in a parallel mortgage universe, unrelated to the real universe,” the judge wrote in that May decision. “Next stop, the Twilight Zone,” he said, quoting from Serling’s TV series about science fiction and the supernatural.

Below you will find  an archive of these cases PLUS many more…

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