Aaron G. Sokolow, with whom Morris R. Battino was on the brief, for appellant.
Stephen O. Hessler for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and NEWMAN, Senior Judge.
Excerpt:
We recognize the “hypertechnical” nature of this regulation and understand that no administrative action was instituted against ESB for its late notification. Nevertheless, we are persuaded that our strict adherence to statutory notice procedures compels a similar result when applying RHC regulations that affect eviction proceedings. See Ayers, 666 A.2d at 52 (strictly construing “hypertechnical” service of process statutory provisions). Therefore, because ESB’s Notice to Quit or Vacate was defective, we reverse the judgment for possession.
[…]
The trial court erred when it ordered the removal of Banks’ lis pendens notice. We therefore reverse its order.
GMAC offers loan modification, accepts payments, and forecloses on homeowners, 5 months into the modification, despite GMAC representative admitting that homeowner was not at fault. Listen to the bank admit to missapplying payments, while foreclosing on Los Angeles, CA homeowners.
2010 NY Slip Op 52003(U)
Decided on November 23, 2010
District Court Of Nassau County, First District
Fairgrieve, J.
Steven J. Baum, P.C., Attorneys for Petitioner, 220 Northpointe Parkway, Suite G, Amherst, New York 14228, 716-204-2400;
Jeffrey A. Seigel, Esq., Volunteer Lawyers Project, Attorneys for Respondent, One Helen Keller Way, Hempstead, New York 11550, 516-292-8299.
Scott Fairgrieve, J.
On January 5, 2010, Wells Fargo Home Mortgage, Inc. (“Wells Fargo”) was the successful bidder at the foreclosure sale of the subject premises known as 360 Stewart Avenue, Unit 1E, Garden City, New York. Wells Fargo received 220 shares of Stewart Franklin Owners Corp., as well as the proprietary lease previously owned by the Respondent, Paul Raia.
On March 12, 2010, Wells Fargo purportedly assigned its January 5, 2010 bid to Petitioner Federal Home Loan Mortgage Corp. (“FHLMC”). However, the “Assignment of Bid” contains only the signature of Steven J. Baum, P.C., and there is no indication for which party the signature was made. Mr. Baum’s office claimed to have the authority to execute the document on behalf of FHLMC by way of a power of attorney attached to the petition. Baum’s office also claimed to have the same authority for Wells Fargo, although Baum’s office provides no evidence in support of that allegation.
EXCERPTS:
Baum has recently faced numerous standing issues concerning assignment, for which its cases were dismissed.
The opinion continues on to state that the “court’s inherent power to impose sanctions is particularly appropriate where fraud, deception, and misrepresentation has been practiced upon the Court.
The fraud perpetrated on the court here occurred when petitioner’s attorney swore that the petition had been read and that the contents of the petition were true to the deponent’s own knowledge. Sanctions may attach to attempts to deceive the court.
CONCLUSION
In view of the foregoing, Steven J. Baum, P.C. must compensate Volunteer Lawyers Project in the amount of $14,532.50 for reasonable attorney’s fees and disbursements within 30 days of the date of this order. Further, this court imposes monetary sanctions in the amount of $5,000.00 on Steven J. Baum, P.C. payable to “Lawyers’ Fund for Client Protection,” established pursuant to section 97-t of the State Finance Law, within 30 days of the date of this order. The clerk of the court is directed to give notice, pursuant to 130-1.3, to the Lawyers’ Fund for Client Protection concerning this award of sanctions.
Supreme Court of the State of New York, held
in and for the County of KINGS, at
the Courthouse located at 360 Adams
Street, Brooklyn, NY on the 2nd day of
June, 2010
“WHY an order should not be made dismissing the within action due to Plaintiffs lack of standing; together with such other and further relief as this Court may deem just and equitable;”
ORDERED, that pending the hearing . . of this motion, the Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees,be and are hereby restrained from implementing or any way pursuing the closing of title on any third party sale of the premisesknown as 81 Woodbine Street, Brooklyn, NY 11221; and Plaintiff Mortgage Electronic Registration System as Nominee for US Bank, N.A., and any of its attorneys, agents, successors and assignees be and are hereby restrained from evicting Liborio Munoz and his family and any other occupants from the premises known as 81 Woodbine Street, Brooklyn, NY 11221.
With no legal training, Zeenat Ali, 23, has been doing battle in court, winning judgments against the bank and two other companies mainly on procedural grounds.
By E. Scott Reckard, Los Angeles Times
August 5, 2010
As foreclosure fights rage in the nation’s courts, the battle over Shahida and Ather Ali’s house in Diamond Bar looks like a classic mismatch.
In one corner, weighing in at $2.5 trillion in assets, sits Deutsche Bank, which is attempting to evict the Alis from their home of 24 years.
In the other is Zeenat Ali, the couple’s diminutive 23-year-old daughter, who dropped out of medical school and sued Deutsche Bank after it foreclosed on the property. Hoping to reclaim title for her parents, Ali has spent half a year litigating in state and federal courts without the help of a lawyer. And though she has no formal legal training, the soft-voiced, 120-pound bantam is more than holding her own.
Using online legal filings as models, she has staved off the eviction and even turned the tables, winning judgments that enabled her to seek $1.7 billion from Deutsche Bank and two other financial firms involved in the deal, Downey Savings and Central Mortgage Co. All three declined to comment on her suit, filed in March in Los Angeles County Superior Court in Pomona. It accuses them of fraud, botching foreclosure paperwork and violating laws requiring lenders to seek alternatives before they put delinquent borrowers out on the street.
Ali’s victories so far have been mainly procedural. Experts say she stands little chance of winning a large damage award. And her parents are likely to lose their home.
Still, legal veterans have been impressed by the smarts and tenacity of the neophyte with the long dark hair and the focused gaze. Ali’s occasionally wavering voice belies exacting preparation and a formidable resolve.
The banks have learned not to underestimate her. In a challenge to her budding legal skills, they sought in May to move her lawsuit to federal court in Los Angeles, where they thought they’d have an easier go of it. Ali responded with 170 pages of legal filings. After reviewing them, U.S. District Judge Gary Feess sided with Ali and last month sent the case back to Pomona Superior.
It was a victory that Elizabeth Mann, chairwoman of the executive committee of the Los Angeles County Bar Assn.’s litigation section, called “remarkable.”
The court held that it “will hold a hearing to determine what sanctions if any, that may be imposed upon Steven J. Baum, P.C. for the false representations made in the petition,” as counsel for Federal Home Loan Mortgage Corp.
Copyright (c) 2010 Pepperdine University School of Law
Pepperdine Law Review
Author: Dale A. Whitman*
The premise of this paper is that the concept of negotiability of promissory notes, which derives in modern law from Article 3 of the Uniform Commercial Code, is not only useless but positively detrimental to the operation of the modern secondary mortgage market. Therefore, the concept ought to be eliminated from the law of mortgage notes.
This is not a new idea. More than a decade ago, Professor Ronald Mann made the point that negotiability is largely irrelevant in every field of consumer and commercial payment systems, including mortgages. 1 But Mann’s article made no specific recommendations for change, and no change has occurred.
I propose here to examine the ways in which negotiability and the holder in due course doctrine of Article 3 actually impair the trading of mortgages. Doing so, I conclude that these legal principles have no practical value to the parties in the mortgage system, but that they impose significant and unnecessary costs on those parties. I conclude with a recommendation for a simple change in Article 3 that would do away with the negotiability of mortgage notes.
I. The Secondary Mortgage Market
In this era, it is a relatively rare mortgage that is held in portfolio for its full term by the originating lender. Instead, the vast majority of mortgages are either traded on the secondary market to an investor who will hold them, 2 or to an issuer (commonly an investment banker) who will securitize them. Securitization …
On June 24, PACT, CCISCO and the PICO National Network hosted a U.S. Treasury Hearing with 500 community members to urge Policy Director Laurie Maggiano: Treasury must do more to hold banks accountable for modifying loans to keep families in their homes. Tax payers bailed out the big banks, and now they need to be a part of stopping preventable foreclosures and rebuilding the economy.
Treasury is responsible for implementing President Obama’s Home Affordable Modification Program (HAMP) that promised to help 3-4 million homeowners avoid foreclosure. Fewer than 10% of these homeowners have received permanent loan modifications. We are working to change that!
Treasury Policy Director Laurie Maggiano agreed to:
• Make the program more inclusive of homeowners in need of loan modifications.
• Get back to PACT in writing within 30 days after taking all the stories, research, and demands for change back to Treasury Secretary Timothy Geithner.
Tyree Brown, the homeowner who complained that Wells Fargo Bank blindsided him with a foreclosure during loan modification negotiations, has won the first round in court.
District Court Judge Douglas Smith signed a preliminary injunction Wednesday, temporarily preventing the buyer from evicting Brown, his two sons and his fiancée from their northwest Las Vegas home.
JFS Management Group, which made the winning bid on the home at a February foreclosure sale, won’t be allowed to take over the house at 1840 Spring Summit Lane and “flip it” for a profit while the case is pending.
Brown and the buyer must negotiate a monthly payment amount or Smith will set the payment amount for them.
The case is unusual because Brown comes from a prominent family. His father, Joe Brown, president of law firm Jones Vargas, sat on the state community board at Wells Fargo Bank and was friends with Wells Fargo’s regional President Kirk Clausen.
Starting to sound like a broken record with these bank “mistakes”!
6/28/2010 12:55 PM By Kelly Holleran
A Groves woman has filed suit against a bank that she says failed to automatically withdraw mortgage payments from her account, causing her to face foreclosure and eviction.
Charlenee Renee Hardee claims she first learned of the foreclosure on her house when she received an eviction notice posted on her door.
According to the complaint filed June 17 in Jefferson County District Court, Hardee had set up automatic withdrawals with defendant Bank of America in December that were supposed to go toward paying off her mortgage.
However, she alleges Bank of America had not been withdrawing payments as scheduled, which Hardee claims she was unaware of until she received the eviction notice, the suit states.
“At that time, Plaintiff checked her bank statement and discovered that no payments had been taken out of her account and that there was sufficient balance to pay the deficiency,” the complaint says. “Plaintiff went to Defendant, Bank of America National Association, and attempted to bring the note current but Defendant, Bank of America National Association, declined to accept her payment because the house had already been sold in foreclosure.”
On April 10, Bank of America executed an appointment of a substitute trustee, who then held a truste’s sale on May 4 and conveyed the property to defendant Estatepro, Hardee claims.
However, before the sale, Estatepro failed to supply Hardee with the required 30-day notice of default or with the notice of foreclosure sale, although it asserts that the required notices were sent, according to the complaint.
It was not until after the sale that Hardee received the notice of eviction, the suit state.s
Hardee alleges breach of contract against Bank of America for its failure to automatically transfer payments from her account. She also claims Estatepro’s deed of the property constitutes an impermissible cloud on Hardee’s premises.
In her complaint, Hardee is asking the court to declare the foreclosure, sale of her property and deed invalid. She is also asking the court to enter an order declaring her to be the rightful owner of the property. She is seeking actual damages, judgment for breach of contract, attorney’s fees, costs and other relief the court deems just.
Bruce Gregory of the Gregory Law Firm in Port Neches will be representing her.
The case has been assigned to Judge Donald Floyd, 172nd District Court.
Jefferson County District Court case number: E187-098.
By Laura Rice TOLEDO24
Monday, May 03, 2010 at 8:23 p.m.
WOOD COUNTY, OH — A Wood County man facing foreclosure has boarded himself up in his home along with five others.
They are refusing to leave, despite a court order, and they say they will be there until Wood County Sheriff’s Officers drag them out.
Protestors are gathered outside Keith Sadler’s home of 20 years in rural Wood County trying to bring public attention to what they say is unfair action by banks and trying to keep the sheriff’s department from kicking him out.
“So far they have not come. Probably because of the strong public presence that has been so basically we can call this a victory for the day and hopefully we can carry that through tomorrow and the rest of the foreclosure,” said Lance Crandall, Toledo Foreclosure Defense League.
But the real action is going on inside, where Sadler and five others are locked up with supplies with no plans to leave.
NBC24 spoke with Sadler over an internet connection.
“They’re going to have to drag us out. We’re not going to willingly walk out,” said Sadler.
Sadler emphasizes that this is a peaceful protest and that they do not have any weapons.
He says he is doing this for himself.
“Because it’s my home,” said Sadler.
But also for all the others that could not keep up with house payments. Sadler was off work after a hand injury.
“I cut all the avenues that I could before that to try to make payments, to try to keep as close to on time as I could and of course it was getting impossible,” said Sadler.
What Sadler wants now is a moratorium on foreclosures. But, in talks with Wood County Sheriff Mark Wasylyshyn, that is not happening.
“(The Sheriff is) basically refusing to do that, saying it’s his duty to uphold the law of the courts even though the laws are immoral and unjust,” said Sadler.
NBC24 spoke with Sheriff Wasylyshyn who said it is Sadler who has broken his word.
Wasylyshyn met with him weeks ago to discuss an eviction plan and he says Sadler agreed to leave peacefully.
Wasylyshyn says sheriff’s deputies will remove the protestors from the property but he would not say when. He says his top priority is keeping his officers safe.
This in via e-mail from the Foreclosure Defense League, they held a press conference on Sunday May 2nd, at 6:00 p.m., in addition to the below release, FOX Toledo reported on this story (link):
On Monday May 3rd, Keith Sadler of Stony Ridge will be evicted from his home. But unlike many in a similar situation, Mr. Sadler intends to resist his foreclosure and stay in his home illegally.
“I am resisting this eviction through non-violent civil disobedience,” states Sadler. “It’s time to make a stand against this corrupt system.”
Alongside Sadler stands a group of community members from the Toledo Foreclosure Defense League, a Northwest Ohio coalition of housing activists. TFDL is also joined by the national group Take Back the Land based out of Miami, Florida.
Sadler, along with the Toledo Foreclosure Defense League, will be peacefully occupying the foreclosed home by sealing themselves inside until the foreclosure is called off and a moratorium on all foreclosures is enacted.
“Housing is a human right. While banks are being bailed out, people are being thrown into the streets. The time has come to take back our land and our communities,” said Sadler.
Following Sunday’s press conference May 2nd at 6pm, activists will lock themselves inside until their demands are met.
Supporters have set up live streaming video and online content at the following web addresses:
LIVE 24 hour coverage from inside the home: (link)
Live coverage goes online at 6:00pm Eastern Standard Time at the scheduled press conference. No broadcasts will be made until then.
RIGHT ON POINT ABOUT WHAT WE WERE JUST TALKING ABOUT IN HEARING YESTERDAY!!
I appeared as expert witness in a case yesterday where the Judge had trouble getting off the idea that it was an accepted fact that the note was in default and that ANY of the participants in the securitization chain should be considered collectively “creditors” or a creditor. Despite the fact that the only witness was a person who admitted she had no knowledge except what was on the documents given to her, the Judge let them in as evidence.
The witness was and is incompetent because she lacked personal knowledge and could not provide any foundation for any records or document. This is the predominant error of Judges today in most cases. Thus the prima facie case is considered “assumed” and the burden to prove a negative falls unfairly on the homeowner.
The Judge, in a familiar refrain, had trouble with the idea of giving the homeowner a free house when the only issue before him was whether the motion to lift stay should be granted. Besides the fact that the effect of granting the motion to lift stay was the gift of a free house to ASC who admits in their promotional website that they have in interest nor involvement in the origination of the loans, and despite the obviously fabricated assignment a few days before the hearing which violated the terms of the securitization document cutoff date, the Judge seems to completely missed the point of the issue before him: whether there was a reason to believe that the movant lacked standing or that the foreclosure would prejudice the debtor or other creditors (since the house would become an important asset of the bankruptcy estate if it was unencumbered).
If you carry over the arguments here, the motion for lift stay is the equivalent motion for summary judgment.
This transcript, citing cases, shows that the prima facie burden of the Movant is even higher than beyond a reasonable doubt. It also shows that the way the movants are using business records violates all standards of hearsay evidence and due process. Read the transcript carefully. You might want to use it for a motion for rehearing or motion for reconsideration to get your arguments on record, clear up the issue of whether you objected on the basis of competence of the witness, and then take it up on appeal with a cleaned up record.
The foreclosure process varies somewhat from state to state, and depends primarily on whether the state uses mortgages or deeds of trust for the purchase of real property. Generally, states that use mortgages conduct judicial foreclosures, using the court system to execute the foreclosure; states that use deeds of trust conduct non-judicial foreclosures, using an out-of-court procedure defined by state law.
To foreclose in accordance with the judicial procedure, a lender must prove in court that the mortgagor is in default. Once the lender has exhausted its attempts to resolve the default with the homeowner, the next step is to contact an attorney to pursue court action. The attorney contacts the mortgagor(homeowner) to try to resolve the default. If the mortgagor is unable to pay off the default, the attorney files a lawsuit against the mortgagor to establish the default amount and the right to have the collateral(home) sold and the sale proceeds applied towards the outstanding loan. The purpose of the action is to provide evidence of a default and get the court’s approval to initiate foreclosure. In connection with the lawsuit, a lis pendens (lawsuit pending notice) is filed with the county clerk or other public property records repository. The lis pendens gives notice to the public that a pending action has been filed against the borrower in default to collect the defaulted debt, including having the collateral (home) sold.
Non-judicial foreclosures are based on deeds of trust that contain a power-of-sale clause. The clause enables the trustee to initiate a foreclosure sale of the collateral(home), without having to file a lawsuit or go to court. The trustee is typically required to issue a notice of default and notify the trustor (borrower) accordingly about the defaulted loan status. If the trustor does not respond, the trustee then initiates the steps for conducting the foreclosure sale of the collateral (home).
A casual conversation about the mechanics of securitization with Neil Garfield MBA JD, Wall Street insider and former trial attorney. Neil is the editor of http://www.LivingLies.Wordpress.com, the leading internet resource on foreclosure defense. He explains how the major banks and Wall Street used securitization to bypass traditional regulatory guidelines, and why it is so difficult for judges, lawyers and borrowers to understand what happened. Neil has just released a 2-disk, 4-hour foreclosure defense DVD set – The Garfield Continuum: Seminar for Laymen. A version for attorneys follows shortly. The DVD and the accompanying Workbook can be purchased at http://www.LivingLies-store.com
Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.
I’ve been fighting OneWest Bank since August of last year here in Colorado. In Colorado they have nonjudicial foreclosures and the laws as so totally banker-biased it’s insane. All the bank has to do is go to the public trustee with a note from an attorney who “certifies” that the bank is the owner of the loan. What they don’t tell you is the bank has to go before a judge and get an order for sale in a 120 hearing. Most only find out about it at the last minute and don’t even show up because the only issue discussed is whether a default has occurred or not.
I discovered however that if you raise the question of whether the foreclosing party is a true party in interest or not, the court has to hear that as well. I raised that issue and demanded the bank produce the original documents and endorsements or assignements. The judge only ordered them to produce originals, which they did.
Long story short, I managed to hold them off for seven months after hiring an attorney. I found a bankruptcy case from CA in 2008 in which IndyMac produced original documents and ended up having to admit they didn’t own them. I had a letter from OneWest that only stated they purchased servicing rights. I had admissions from the bank’s attorney that there were no endorsements. And at the last minute I discovered the FDIC issued a press release in response to a YouTube video that went viral over the sweetheart deal OneWest did with the FDIC. The FDIC stated in their press release that OneWest only owned 7% of the loans they service. I presented all this to the judge but he ended up ignoring it all and gave OneWest an order to sell my home, which they did on the 4th.
About a week before the sale I went directly to the FDIC and filed a FOIA request for any and all records indicating ownership rights and servicing rights related to my loans and gave them my loan numbers. I managed to get the info in about 6 days. I got PROOF from the FDIC that OneWest did not own my loan. Fredie Mac did. And the info came directly from OneWest systems. And just last Friday I got a letter from IndyMac Mortgage services, obviously in compliance with the FOIA request that Freddie Mac owned the loan. So I now have a confession from OneWest themselves that they have been lying all along! I have a motion in to have the sale set aside and once that’s done I’m going to sue the hell out of them and their attorneys in Federal court.
So I found a wonderful little back door to the proof most of us need. If the FDIC is involved, you can do a FOIA request for the info. I don’t know if it applies to all banks since they are all involved in the FDIC. You all should try it to see.
Most of us are trying to get the info from the banks, which they will not do unless forced. Well, now many of us can walk right in through the back door. FOIA requests! I fought for 7 months to get the bank to cough up the info and it only took 6 days by going through the FDIC. So now I’m in the drivers seat. This damned bank has been lying from day one claiming they are the sole beneficiary of my loan. Now they have committed the fraud and done the crime by illegally selling my home. They are now in deep, deep, trouble.
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