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JUDGE ORDERS DISCOVERY | AMBAC Assurance Corporation v EMC Mortgage Corp, EDNY

JUDGE ORDERS DISCOVERY | AMBAC Assurance Corporation v EMC Mortgage Corp, EDNY


Via: Livinglies

Now that these venerable institutions have turned into ankle biter’s, their claims to compel production and other forms of discovery are being heard by the same judges that turn down similar claims from borrowers. In this case AMBAC is suing one of the mortgage aggregators alleging that the aggregator  caused loans to be originated without regard to the ability of of the borrower to repay the loan. They allege that despite the claim that the mortgage “pools” were sampled, many of the loans consisted of transactions in which the borrower was known not to have the capability of even making the first payment. In other cases, as we know, the loans were “qualified” simply on the ability of the borrower to make the first payment, which was substantially reduced by allowing the borrower to pay less than the accrued interest and not of the principal. AMBAC is therefore making the same claims as borrowers and investors.

It is clear from this case and other recent decisions at the trial court level that the defensive stonewalling tactics which were used successfully against borrowers are not working when the litigants are both institutions. This particular case was submitted to me by Max Gardner, who recognizes the significance of this development. It may seem like technical procedure to most people but the fact remains that these “pretender lenders” simply do not have a factual defense. The only thing they have our lawyers who are skilled in using civil procedure to avoid any possibility that the case will be  heard on the merits. This tactic, while successful against borrowers, is obviously going down the tubes in connection with litigation between institutions.

This will have an obvious and palpable effect on litigation with borrowers. Borrowers or their attorneys that represent them will merely cite  rulings in the same or nearby jurisdiction wherein discovery was allowed to proceed. Our experience in monitoring thousands of cases indicates that in the relatively few cases where judges allow discovery to proceed the matter was quickly settled or the party seeking foreclosure simply vanished, allowing the borrower to either get a judgment for quiet title by default or to sit in limbo with no party seeking payments or foreclosure.

[ipaper docId=34218867 access_key=key-2b903o42cdjk7ti4nw45 height=600 width=600 /]


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Posted in discovery, emc, foreclosure, foreclosures, livinglies, reversed court decision, securitization, servicers, STOP FORECLOSURE FRAUDComments (0)

ANOTHER ONE BITES THE DUST!! IN RE BRIGID In re: MARY BRIGID, Chapter 7, Debtor. MARY ANN RABIN, Plaintiff, v. MARY BRIGID, et al., Defendants. Case No. 08-18750, Adversary Proceeding No. 09-1062. United States Bankruptcy Court, N.D. Ohio.

ANOTHER ONE BITES THE DUST!! IN RE BRIGID In re: MARY BRIGID, Chapter 7, Debtor. MARY ANN RABIN, Plaintiff, v. MARY BRIGID, et al., Defendants. Case No. 08-18750, Adversary Proceeding No. 09-1062. United States Bankruptcy Court, N.D. Ohio.


SAFE!

Via: Livinglies

More and more Judges are finding ways to destroy the entire mortgage — a message to those “lenders” who refuse to reduce principal as settlement of the dispute.

Submitted by Max Gardner

In re: MARY BRIGID, Chapter 7, Debtor.
MARY ANN RABIN, Plaintiff,
v.
MARY BRIGID, et al., Defendants
.

Case No. 08-18750.

Adversary Proceeding No. 09-1062.

United States Bankruptcy Court, N.D. Ohio.

May 21, 2010.

MEMORANDUM OF OPINION

ARTHUR I. HARRIS, Bankruptcy Judge

This matter is currently before the Court on the cross-motions for summary judgment of the plaintiff-trustee, Mary Ann Rabin, and defendant RBC Mortgage Company. At issue is whether the trustee is entitled to avoid a mortgage because the notary’s certificate of acknowledgment failed to recite the name of the party whose signature was acknowledged, notwithstanding a postpetition attempt to correct this omission. For the reasons that follow, the Court holds that the mortgage was not executed in accordance with Ohio’s statutory requirements and can be avoided by the trustee as it relates to the undivided half interest of the debtor Mary Brigid. Accordingly, the trustee’s motion for summary judgment is granted, and RBC Mortgage’s motion for summary judgment is denied.

FACTS AND PROCEDURAL BACKGROUND

Unless otherwise indicated, the following facts are not in dispute. The debtor Mary Brigid and non-debtor Susan Radbourne are joint owners of the real property located at 3000 Yorkshire Road, Cleveland Heights Ohio, 44118. The deed was recorded on September 10, 1999, and provides “Mary Brigid, unmarried and Susan M. Radbourne, unmarried remainder to the survivor of them.” On July 9, 2003, RBC Mortgage extended a loan to Radbourne. The loan was secured by a mortgage of the real property, which was recorded in the Cuyahoga County Recorder’s office, Instrument No. 20030110552 on July 11, 2003.

Page 26 of the mortgage (Docket # 38 Ex. D ) provides in pertinent part:

BY SIGNING BELOW, Borrower accepts and agrees to the terms and 
covenants contained in this Security Instrument and in any riders 
executed by Borrower and recorded with it.

WITNESSES:

X/s/ Brent A. White             /s/ Susan M. Radbourne     
 Brent A. White                Susan M. Radbourne  — Borrower

                                 /s/ Mary Brigid            
                                    — Borrower

STATE OF OHIO

COUNTY OF Cuyahoga   

 On this 9  day of July 2003 , before me, a Notary Public in and for 
said County and State, personally appeared
 Susan M. Radbourne                                             
 Unmarried                                
 ___________________________________________________________________
the individual(s) who executed the foregoing instrument and 
acknowledged that he/she/they did examine and read the same and
did sign the foregoing instrument, and that the same is 
his/her/their free act and deed.

IN WITNESS WHEREOF, I have hereunto set my hand and official seal.

                                    /s/ Brent A. White         
                                    Notary Public

                                                          (Seal)

                                 *   *   *

On November 7, 2008, the debtor filed a petition under Chapter 7 of the Bankruptcy Code (case # 08-18750). On February 5, 2009, the trustee of the Chapter 7 estate initiated this adversary proceeding seeking to avoid the mortgage of RBC Mortgage as it relates to the debtor’s half interest pursuant to section 544 of the Bankruptcy Code and to determine the interests of all parties in the property.

The complaint named as defendants Mary Brigid, Susan Radbourne, Mortgage Electronic Registration System,  RBC Mortgage Company, Chase Home Finance, Huntington National Bank, the Cuyahoga County Treasurer, and the City of Cleveland Heights. The treasurer, City of Cleveland Heights, Mary Brigid, Susan Radbourne, and RBC Mortgage filed answers to the complaint. In its answer, the City of Cleveland Heights asserted a judgment lien in the amount of $1,316.80 at the rate of 5% interest from February 26, 2009, No. JL06258471. Radbourne asserted an undivided half interest in the property in question. She also brought a cross-claim for negligence against RBC Mortgage and requested a reservation of her right to purchase the real estate pursuant to Section 363(i). In its answer, RBC Mortgage asserted that the debtor held only bare legal title and that the trustee had constructive notice.

On June 4, 2009, all parties stipulated that the Cuyahoga County Treasurer has the first and best lien on the subject property for taxes and assessments. On December 27, 2009, the debtor’s deposition was taken, at which the debtor acknowledged signing the mortgage outlined above. On January 13, 2010, attorney David A. Freeburg filed an affidavit of facts regarding the acknowledgment of the mortgage by Mary Brigid. On January 14, 2010, the trustee filed a motion for summary judgment seeking to avoid the mortgage held by RBC Mortgage. On January 21, 2010, RBC Mortgage filed a cross-motion for summary judgment and a response. Briefing on the cross-motions for summary judgment is complete, and the Court is ready to rule.

JURISDICTION

Determinations of the validity, extent, or priority of liens are core proceedings under 28 U.S.C. section 157(b)(2)(K). The Court has jurisdiction over core proceedings under 28 U.S.C. sections 1334 and 157(a) and Local General Order No. 84, entered on July 16, 1984, by the United States District Court for the Northern District of Ohio.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(c), as made applicable to bankruptcy proceedings by Bankruptcy Rule 7056, provides that a court shall render summary judgment, if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The moving party bears the burden of showing that “there is no genuine issue as to any material fact and that [the moving party] is entitled to judgment as a matter of law.” Jones v. Union County, 296 F.3d 417, 423 (6th Cir. 2002). See generally Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party meets that burden, the nonmoving party “must identify specific facts supported by affidavits, or by depositions, answers to interrogatories, and admissions on file that show there is a genuine issue for trial.” Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997). See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”). The Court shall view all evidence in a light most favorable to the nonmoving party when determining the existence or nonexistence of a material fact. See Tenn. Dep’t of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir. 1996).

DISCUSSION

Under the “strong arm” clause of the Bankruptcy Code, the bankruptcy trustee has the power to avoid transfers that would be avoidable by certain hypothetical parties. See 11 U.S.C. § 544(a). Section 544 provides in pertinent part:

(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by —

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. . . .

(3) a bona fide purchaser of real property, other than fixtures, from the debtor, against whom applicable law permits such transfer to be perfected, that obtains the status of a bona fide purchaser and has perfected such transfer at the time of the commencement of the case, whether or not such a purchaser exists.

11 U.S.C. §544. Any transfer under section 544 is preserved for the benefit of the estate. See 11 U.S.C. § 551.

The mortgage provides that federal law and the law of the jurisdiction in which the property is located will control. Because the real property in question is located in Ohio, the Court will apply Ohio law to determine whether the trustee can avoid the mortgages using the “strong arm” clause. See Simon v. Chase Manhattan Bank (In re Zaptocky), 250 F.3d 1020, 1024 (6th Cir. 2001) (applicable state law governs determination whether hypothetical bona fide purchaser can avoid mortgage).

Under Ohio law, a bona fide purchaser is a purchaser who “`takes in good faith, for value, and without actual or constructive knowledge of any defect.'” Stubbins v. Am. Gen. Fin. Serv., Inc. (In re Easter), 367 B.R. 608, 612 (Bankr. S.D. Ohio 2007), quoting Terlecky v. Beneficial Ohio, Inc. (In re Key), 292 B.R. 879, 883 (Bankr. S.D. Ohio 2003); see also Shaker Corlett Land Co. v. Cleveland, 139 Ohio St. 536 (1942). The Bankruptcy

Code expressly provides that a bankruptcy trustee is a bona fide purchaser regardless of actual knowledge. See In re Zaptocky, 25,0 F.3d at 1027 (“actual knowledge does not undermine [trustee’s] right to avoid a prior defectively executed mortgage.”). Because actual knowledge does not affect the trustee’s strong-arm power, the Court need only determine whether the trustee had constructive knowledge of the prior interests held by the defendant RBC Mortgage.

Ohio law provides that “an improperly executed mortgage does not put a subsequent bona fide purchaser on constructive notice.” Zaptocky, 250 F.3d at 1028. Ohio courts have refused to allow a recorded mortgage to give constructive notice when the mortgage has been executed in violation of a statute. See In re Nowak, 10,4 Ohio St. 3d 466 (2004) (listing cases). The first question, then, is whether the mortgage was executed in compliance with, or substantially conforms to applicable statutory law. A second question, if the mortgage was not executed in compliance, is whether the December 27, 2009, acknowledgment by Mary Brigid and the January 13, 2010, affidavit filed by attorney Freeburg corrected the defect. A third question, if the lien remains defective, is what interest the trustee is entitled to avoid.

The Mortgage Was Not Properly Executed in Accordance with Ohio Revised Code § 5301.01

Ohio Revised Code § 5301.01 requires four separate acts to properly execute a mortgage: (1) the mortgage shall be signed by the mortgagor; (2) the mortgagor shall acknowledge his signing in front of a notary public, or other qualified official; (3) the official shall certify the acknowledgment; and (4) the official shall subscribe his name to the certificate of acknowledgment. OHIO REV. CODE ANN. § 5301.01(A) (2004); see Drown v. GreenPoint Mortgage Funding, Inc. (In re Leahy), 376 B.R. 826, 832 (Bankr. S.D. Ohio 2007) (listing four requirements provided by Ohio Rev. Code. § 5301.01).2 At issue in this case is whether the certificate of acknowledgment, which omitted the name of Mary Brigid, satisfies the third requirement to proper execution of a mortgage.

Certification of an acknowledgment is governed by Ohio Revised Code sections 147.53-147.58. Ohio Revised Code section 147.53 provides:

The person taking an acknowledgment shall certify that:

(A) The person acknowledging appeared before him and acknowledged he executed the instrument;

(B) The person acknowledging was known to the person taking the acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.

The Ohio Revised Code further provides that a certificate of acknowledgment is acceptable in Ohio if it is in a form prescribed by the laws or regulations of Ohio or contains the words “acknowledged before me,” or their substantial equivalent. OHIO REV. CODE § 147.54. Ohio’s statutory short form acknowledgment for an individual is as follows:

      State of ________

      County of ________

      The foregoing instrument was acknowledged before me this (date) by
      (name of person acknowledged.)

      (Signature of person taking acknowledgment)
      (Title or rank) (Serial number, if any)

OHIO REV. CODE § 147.55(A).

The trustee argues that the mortgage was improperly recorded because the certification of acknowledgment does not conform to section 5301.01 of the Ohio Revised Code with respect to the debtor. Specifically, the trustee asserts that the clause fails to identify the name of the debtor. The Court agrees. Recent case law, including a 2008 decision from the Sixth Circuit BAP, supports the trustee’s position that an acknowledgment is defective if it fails to identify the person whose signature is being acknowledged. See In re Nolan, 38,3 B.R. 391 (6th Cir. B.A.P. 2008)In re Sauer, 41,7 B.R. 523 (Bankr. S.D. Ohio 2009); Daneman v. Nat’l City Mortg. Co. (In re Cornelius), 408 B.R. 704, 708 (Bankr. S.D. Ohio 2009) (“The absence of the name of the mortgagee acknowledging election is the functional equivalent of no certificate of acknowledgment and renders an acknowledgment insufficient.”); Drown v. Countrywide Home Loans, Inc. (In re Peed), 403 B.R. 525, 531 (Bankr. S.D. Ohio 2009) affirmed at No. 2:09cv347 (S.D. Ohio Feb. 18, 2010); Terlecky v. Countrywide Home Loans, Inc. (In re Baruch), No. 07-57212, Adv. No. 08-2069, 2009 Bankr. Lexis 608 at *22 (Bankr. S.D. Ohio Feb. 23, 2009) (“An acknowledgment clause containing nothing relative to the mortgagor’s identity is insufficient; rather, an acknowledgment clause must either identify the mortgagor by name or contain information that permits the mortgagor to be identified by reference to the mortgage.”); In re Leahy, 37,6 B.R. at 832. See also Smith’s Lessee v. Hunt, 13 Ohio 260, 269 (1844) (holding that court was unable to infer name of grantor when acknowledgment was blank as to the grantor and, thus, the mortgage was defective and did not convey title).

The holdings in Nolan, Smith’s Lessee, and similar cases are also supported by case law interpreting almost identical statutory provisions for acknowledgment clauses in Kentucky and Tennessee. See, e.g., Gregory v. Ocwen Fed. Bank (In re Biggs), 377 F.3d 515 (6th Cir. 2004) (affirming bankruptcy court’s decision avoiding deed of trust under section 544 and Tennessee law when deed of trust omitted names of acknowledging parties); Select Portfolio Servs. v. Burden (In re Trujillo), 378 B.R. 526 (6th Cir. B.A.P. 2007) (affirming bankruptcy court’s decision avoiding mortgage under section 544 and Kentucky law when debtor was not named or identified in certificate of acknowledgment).

Because RBC Mortgage conceded that at the time of execution the mortgage was defective, and because no argument was made regarding substantial compliance, this Court holds that the mortgage failed to substantially comply with the filing requirements. Therefore, the mortgage was improperly executed with respect to the debtor because the certification of acknowledgment failed to indicate who appeared before the notary public as required under Ohio Revised Code section 5301.01.

RBC Mortgage’s Attempt to Validate the Defective Mortgage via Section 5301.45 is Ineffective

The Court rejects the argument of RBC Mortgage that Ohio Revised Code section 5301.45 and Bankruptcy Code section 546(a)(1) allow it to correct a defective acknowledgment and defeat the trustee’s strong arm powers by using the debtor’s testimony taken at a deposition postpetition. First, section 5301.45 simply does not apply to any situation other than the correction of pagination of acknowledgment clauses. Second, even if section 5301.45 did apply, the postpetition acknowledgment by the debtor was not voluntary. These issues are discussed more fully below.

1. Section 5301.45 is meant as a mechanism to correct pagination only

While older versions of the statutes at issue in this case date back as early as the 1800’s, the Court begins its analysis with the 1910 version of the Ohio General Code. See THE GENERAL CODE OF THE STATE OF OHIO (The Commissioners of Public Printing of Ohio 1910) (“Being an Act entitled `An Act to revise and consolidate the general statutes of Ohio”). Section 8510 of the 1910 Ohio General Code provided:

A deed, mortgage, or lease of any estate or interest in real property, must be signed by the grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. Such signing also must be acknowledged by the grantor,

mortgagor, or lessor before a judge of a court of record in this state, or a clerk thereof, a county auditor, county surveyor, notary public, mayor, or justice of the peace, who shall certify the acknowledgment on the same sheet on which the instrument is written or printed, and subscribe his name thereto.   (Emphasis added). This 1910 statute outlined the requirements to validate a deed, mortgage, or lease, including the necessity for two witnesses and that the acknowledgment page be on the same page as the instrument, and is the precursor to Ohio Revised Code section 5301.01.

The original version of what is now Ohio Revised Code section 5301.45 is provided in Local Laws and Joint Resolutions, 57 v 10, and was titled as section 8559 of the Ohio General Code. The current version of the statute is substantially identical to its 1910 version and provides in full:

When a deed, mortgage, lease, or other instrument of writing intended to convey or encumber an interest in real estate is not printed or written on a single sheet, or when the certificate of acknowledgment thereof is not printed or written on the same sheet with the instrument, and such defective conveyance is corrected by the judgment of a court, or by the voluntary act of the parties thereto, such judgment or act shall relate back so as to be operative from the time of filing the original conveyance in the county recorder’s office.

OHIO REV. CODE § 5301.45.

Thus, the state of the law regarding the formal requirements of a valid mortgage in 1910 was that although section 8510 required the instrument and acknowledgment clause to be on the same page, section 8559 allowed for correction of this deficiency through voluntary act of the parties or judgment by the court. However, the Ohio Supreme Court held in 1939 that certificates bound to an instrument substantially complied with the statute. The Court explained that:

When the provision now found in Section 8510, General Code, was enacted, more than a hundred years ago, deeds, mortgages and leases were usually and could easily be written in their entirety on a single sheet of paper. In recent years many of such instruments are so long that to write or print them on one sheet would require a roll of paper. Often, too, the acknowledgments are so numerous as to present the same difficulty. What the Legislature sought by the enactment of the provisions now found in Section 8510 was no doubt the prevention of fraud that might be readily perpetrated if the certificate of acknowledgment were on a sheet separate from the instrument itself. With respect to the lease in litigation this danger is eliminated because the certificates are bound to the other parts by rivets so as to make a unified whole.

S.S. Kresge Co., v. Butte, 136 Ohio St. 85, 89-90 (1939).

Noticeably missing from later versions of section 8510 (now 5301.01 of the Ohio Revised Code), is the requirement that the notary certify the acknowledgment on the same sheet as the instrument. See OHIO REV. CODE § 1.01 (“All statutes of a permanent and general nature of the state as revised and consolidated into general provisions, titles, chapters, and sections shall be known and designated as the `Revised Code'”); OHIO GENERAL CODE § 8510, OHIO REV.CODE § 5301.01. In fact, the current version of section 5301.07 specifically provides that no instrument conveying real estate is defective or invalid because “the certificate of acknowledgment is not on the same sheet of paper as the instrument.”

It appears that section 5301.45 was enacted to afford an opportunity for parties to physically affix separate pages of an instrument and an acknowledgment clause to enable substantial compliance with section 5301.01. The Ohio Jurisprudence 3d contains an analysis of the interplay between these statutes.

[Section 5301.45] assumes that the certificate of acknowledgment must be printed or written on the same sheet with the mortgage, or else the mortgage is defective; but there is now no statute specifically requiring the acknowledgment to be on the same sheet. The reason for the above provision, so far as acknowledgments are concerned, undoubtedly lies in the fact that under an earlier from of RC section 5301.01, it was required that the acknowledgment be on the same sheet of paper as that on which the conveyance was written. It seems likely that the omission from the statute in this respect was due to judicial construction of the former statute, in regard to which the courts, recognizing the ever-increasing length of instruments such as mortgages, held that the instrument was valid where the sheets were securely fastened together and a certificate of acknowledgment was on the last page. In some cases, emphasis was placed upon the sheets being so fastened together that the one bearing the certificate of acknowledgment could not be removed without showing evidence of mutilation.

69 O. Jur. 3d Mortgages § 102 (1986).

The Ohio Transaction Guide, a multi-volume set that has provided

practitioners with research tools and practice tips for over thirty years is instructive and consistent with this Court’s understanding of the intention of the statute. Section 188.30 of the Ohio Transaction Guide provides that “if a deed is not printed or written on the same sheet with the instrument, the conveyance may be corrected by the judgment of a court or by the voluntary act of the parties.” It continues by providing that “[a]lthough it is not necessary to the validity of the deed that the acknowledgment appear on the same sheet of paper as the deed, the usual practice is to convey the property with the necessary acknowledgments on the same sheet.” Thus, the original and later versions of section 5301.45 were designed as a mechanism for correcting failure to adhere to a repealed requirement of section 5301.01. This Court holds that section 5301.45 was enacted to amend mortgages and deeds where the execution and acknowledgment clauses were on separate pieces of paper, at a time in history when such documents were required to appear on the same page, and the parties wished to physically bind them together. Therefore, section 5301.45 cannot be used to correct the type of acknowledgment clause defect at issue in this case.

2. The debtor’s postpetition acknowledgment was not voluntary

Even if this Court were to find that section 5301.45 can be utilized to cure a defective mortgage certification clause under section 546(b)(1), the debtor’s postpetition acknowledgment was not voluntary. Specifically, the debtor testified at a deposition after being served with process and was required to answer questions under oath. This is not the type of voluntary behavior provided for by the statute, especially because both the deposition and “re-recording” of the mortgage took place after the trustee had initiated this adversary proceeding, and served the debtor with a summons and complaint.

In summary, this Court holds that section 5301.45 can only retroactively perfect a mortgage where the instrument and acknowledgment clause are on separate pages, the parties voluntarily act to attach those pages, and the mortgage is otherwise a validly executed document. Therefore, the Court rejects RBC Mortgage’s attempt to use section 5301.45 and the debtor’s postpetition deposition testimony to correct the type of acknowledgment clause defect at issue in this case.

The Trustee May Avoid the Debtor’s Undivided Half Interest in the Subject Property

Although it is well established that a trustee may avoid a debtor’s half interest when a mortgage is found to be valid as to one co-owner and defective as to the other co-owner, RBC Mortgage asserts that the title of the tenancy held by the debtor and Radbourne somehow mandates a different result. This Court finds that Radbourne and the debtor held the property as joint tenants, as evidenced by the deed’s use of the language to “Mary Brigid, unmarried and Susan Radbourne, unmarried, remainder to the survivor of them,” (emphasis added). Section 5302.20 provides that a deed showing a clear intent to create a joint tenancy with rights of survivorship “shall be liberally construed to do so.” OHIO REV. CODE § 5302.20. This Court finds that based on the clear reading of the deed in question, the intention of the parties was to create a joint tenancy with rights of survivorship.

Further, joint tenants hold “an equal share of the title during their joint lives unless otherwise provided in the instrument creating the survivorship tenancy.” OHIO REV. CODE § 5302.20. Although this statute provides that joint tenants are subject to a proportionate share of the costs related to ownership, it also provides that when a creditor of a survivorship tenant enforces a lien against the debtor’s interest, the interest “shall be equal unless otherwise provided in the instrument creating the survivorship tenancy.” OHIO REV. CODE § 5302.20. This proposition is supported by recent case law. In Simon v. CitiMortgage, Inc., (In re Doubov), 423 B.R. 505 (N.D. Ohio 2010), the bankruptcy trustee sought to avoid the debtor wife’s half interest in property that both spouses mortgaged as joint tenants. The trustee argued that a defective acknowledgment rendered the mortgage avoidable as to the debtor wife. Judge Morgernstern-Clarren held:

When the debtors granted the mortgage, they held the property under a survivorship tenancy. See Ohio Rev. Code §§ 5302.17, 5302.20. Under this form of ownership each survivorship tenant holds an equal share of the title to the property during their joint lives (unless the instrument creating the tenancy provides otherwise, which this one does not.) Ohio Rev. Code 5302.20(B). . . .

. . . .

Under Ohio law, a person is precluded from granting a mortgage on property in which he has no interest. See Ins. Co. Of N. Am. v. First Nat’l Bank of Cincinnati, 444 N.E. 2d 456, 459 (Ohio Ct. App. 1981). Additionally “a mortgagor can only bind the estate or property he has, and a `mortgagee can take no greater title than that held by the mortgagor.'” Stein v. Creter (In re Creter), Adv. No 06-2042, 2007 WL 2615214, at *4 (Bankr. N.D. Ohio Sept. 5, 2007) (quoting 69 Ohio Jur. 3d Mortgages and Deeds of Trusts § 17); see also Stubbins v. HSBC Mortgage Servs., Inc. (In re Slack), 394 B.R. 164, 170 (Bankr. S.D. Ohio 2008). When Mr. Doubov gave the mortgage to Citifinancial, he only held title to the property under a survivorship tenancy; that one-half interest is what he mortgaged.

In re Doubov, 42,3 B.R. at 513-14.

Similarly, when the debtor and Radbourne mortgaged the property, they did so as joint tenants with rights of survivorship. The instrument creating the tenancy did not provide for other treatment of ownership, and thus the debtor, as a matter of law, held an undivided half interest in the property at the time it was mortgaged. When Radbourne gave the mortgage to RBC Mortgage, she only held a half interest, and that is what RBC Mortgage received. This conclusion is supported by the fact that both the debtor and Radbourne answered the trustee’s complaint by claiming an undivided half interest in the property, and this Court declines to consider any argument by RBC Mortgage that the debtor owes Radbourne some equitable relief as a result of her filing for a petition for bankruptcy. This Court holds that the certificate of acknowledgment is defective and the trustee can avoid themortgage as it relates to the undivided half interest of Mary Brigid.

Unresolved Matters Including Radbourne’s Cross-Claim

While it appears that this decision resolves most of the claims at issue in this adversary proceeding, one matter not yet addressed in this decision is Radbourne’s cross-claim against RBC Mortgage. In her cross-claim, Radbourne alleges that she was damaged as a result of negligence by RBC Mortgage in the preparation of the loan documentation and closing of the loan transaction that are the subject of this adversary proceeding. In its cross-motion for summary judgment, RBC Mortgage also seeks summary judgment on Radbourne’s cross-claim. Radbourne has not filed a response.

The Court is reluctant to decide the merits of Radbourne’s cross-claim absent further argument from the parties on the question of jurisdiction to hear this claim. For example, even if the parties were to consent to the undersigned judge entering a final judgment on the cross-claim, the Court has serious doubts as to whether it has “related to” subject matter jurisdiction over a non-debtor’s tort claim against another non-debtor. See 28 U.S.C. § 1334; In re Dow Corning Corp., 8,6 F.3d 482 (6th Cir. 1996).

An action is “related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.”  86 F.3d at 489 (quoting Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)). For example, any recovery to the non-debtor Radbourne is unlikely to affect the debtor’s estate, either positively or negatively. Accordingly, any party wishing to have this Court decide the cross-claim should be prepared to address the issue of subject matter jurisdiction at a status conference at 1:30 P.M. on June 8, 2010.

In addition, while not included as a separate count, the trustee does seek, in her prayer for relief, authority to sell the real property, including the interest of the non-debtor co-owner. Therefore, counsel shall be prepared to advise the Court at the status conference as to what additional steps are needed to resolve all remaining claims in this adversary proceeding. Until there is a final decision on Radbourne’s cross-claim and any other unresolved claims, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed. R. Civ. P. 54(b).

CONCLUSION

For the reasons stated above, the Court holds that the certificate of acknowledgment is defective and the trustee can avoid the mortgage as it relates to the half interest of the debtor. Accordingly, the trustee’s motion for summary judgment is granted. While it appears that this decision is largely dispositive, until there is a final decision on Radbourne’s cross-claim, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed R. Civ. P. 54(b). The Court will conduct a status conference at 1:30 p.m. on June 8, 2010. Counsel shall be prepared to advise the Court as to what additional steps are needed to resolve all remaining claims in this adversary proceeding.

Page 24

JUDGMENT

For the reasons stated in the separate Memorandum of Opinion, the Court holds that the certificate of acknowledgment is defective and the trustee can avoid themortgage as it relates to the half interest of the debtor. Accordingly, the trustee’s motion for summary judgment is granted. While it appears that this decision is largely dispositive, until there is a final decision on Radbourne’s cross-claim, this is not a final judgment for purposes of 28 U.S.C. § 158. See Bankr. Rule 7054 and Fed R. Civ. P. 54(b). The Court will conduct a status conference at 1:30 p.m. on June 8, 2010. Counsel shall be prepared to advise the Court as to what additional steps are needed to resolve all remaining claims in this adversary proceeding.

IT IS SO ORDERED.

—————

Notes:

1. This Memorandum of Opinion is not intended for official publication.

2. In Zaptocky, the Sixth Circuit identified “three major prerequisites for the proper execution of a mortgage: (1) the mortgagor must sign the mortgage deed; (2) the mortgagor’s signature must be attested by two witnesses; and (3) the mortgagor’s signature must be acknowledged or certified by a notary public.” Zaptocky, 250 F.3d at 1024. The differences between Zaptocky’s three requirements and Leahy’s four requirements are (A) the deletion in Leahy of Zaptocky’s second requirement — attestation by two witnesses — due to a change in the statute, and (B) the Leahy court’s breaking down of Zaptocky’s third requirement — certification of acknowledgment — into three separate parts.

—————

Posted in foreclosure, reversed court decisionComments (0)

Produce the Note and Deficiency Judgments

Produce the Note and Deficiency Judgments


Some Magically Produce Some Not!

Via: Foreclosure Industry

May 6, 2010 by christine

In speaking with Michael Hirschtick yesterday, he raised a very interesting point that I don’t think a lot of people realize: that enforcement of the Note and foreclosing on the Mortgage are two separate things.

I’ll say that again.

There are two parts to a home loan: the Mortgage and the Note. They are two separate and distinct things. A Mortgage (or Deed of Trust) is basically the instructions on what to do if a borrower defaults on a loan; the Note gives them the right to collect money.

Continue reading… FORECLOSURE INDUSTRY

Related Story: new-mers-standing-case-splits-note-and-mortgage-bellistri-v-ocwen-loan-servicing-mo-app-20100309

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in case, foreclosure fraud, livinglies, MERS, mortgage electronic registration system, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., Mortgage Foreclosure Fraud, neil garfieldComments (1)

Foreclosure FRAUD?: Tell it to the Attorney General Bill McCollum 5/8 MIAMI

Foreclosure FRAUD?: Tell it to the Attorney General Bill McCollum 5/8 MIAMI


PICKET…anyone??

Posted by Harriet Brackey on April 30, 2010 10:46 AM SunSentinel

If you want to speak to Florida’s Attorney General about foreclosure or loan modifications or mortgage fraud, here’s your chance.4823741.thl.jpg

Saturday, May 8, in Miami, Attorney General Bill McCollum will be on hand for a Mortgage Fraud Community Forum. He’s hosting the event with Florida’s Interagency Mortgage Task Force.

The session is on “The Housing Crisis, Who to Trust and Where to Turn.”

It’s open to the public and free, but reservations are required. Call 877-385-1621.
It will be held from 10 a.m. to 4 p.m. at Miami Dade College, Wolfson Campus, Chapman Conference Center, 300 N.E. Second Ave.

The AG’s office says you can get help on how to face foreclosure, housing scams, mortgage fraud, loan modifications and finding legal assistance.

Certified housing counselors, volunteer lawyers, as well as representatives of Bank of America, JP Morgan Chase, Wells Fargo/Wachovia and SunTrust will be on hand.

Also attending will be representatives of:
Florida Department of Law Enforcement, Office of Financial Regulation, Department of Business and Professional Regulation, Florida Bar, Dade County Bar Legal Aid Society, Cuban American Bar and the Collins Center Foreclosure Mediation Program.

For more information, go to www.myfloridalegal.com/mortgagefraud.

Posted in foreclosure fraudComments (0)

Attorney general investigating Tampa foreclosure firm: TBO.com

Attorney general investigating Tampa foreclosure firm: TBO.com


Florida Default Law Group, a huge foreclosure law firm has angered judges with its practices.
Florida Default Law Group, a huge foreclosure law firm has angered judges with its practices.

By MICHAEL SASSO | The Tampa Tribune

Published: April 30, 2010

TAMPA – The Florida Attorney General’s Office is investigating a Tampa-based foreclosure law firm that has become one of the state’s largest foreclosure mills.

On the agency’s Web site, the attorney general showed it has an “active public consumer-related investigation” into Florida Default Law Group. The agency notes that it is a civil investigation, rather than a criminal one, and the fact that is has an investigation isn’t proof of any violation of law.

Without going into much detail, the attorney general’s Web site says Florida Default Law Group, “Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases.

“These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month.”

Attempts to reach the Attorney General’s Office and Michael Echevarria, the head of Florida Default Law Group, were unsuccessful Thursday.

Based in a business park just off the Veteran’s Expressway, Florida Default Law Group files hundreds of foreclosure lawsuits alone in Hillsborough County on behalf of banks and mortgage servicing companies. The Tribune profiled Florida Default Law Group in January.

According to the Tribune’s review of 1,994 circuit court records, the firm filed initial legal documents for 323 foreclosure lawsuits in October. That was second only to the Law Offices of David J. Stern, a Broward County-based foreclosure firm that filed 352 foreclosure cases in October.

Florida Default Law Group operates in numerous counties in Florida, but it’s not clear how many lawsuits it files outside of Hillsborough County.

Reporter Michael Sasso can be reached at (813) 259-7865.

Posted in concealment, conspiracy, corruption, DOCX, FDLG, florida default law group, foreclosure fraud, foreclosure mills, forensic mortgage investigation audit, Lender Processing Services Inc., LPS, MERS, Mortgage Foreclosure Fraud, scamComments (0)

!BAM! Foreclosure Lawyers Face New Heat In Florida: Wall Street Journal AMIR EFRATI

!BAM! Foreclosure Lawyers Face New Heat In Florida: Wall Street Journal AMIR EFRATI


Again…AMIR…SETS IT OFF!!

April 29, 2010, 12:46 PM ET

By Amir Efrati The Wall Street Journal

Foreclosure DrThese are precarious times for lawyers in the business of filing foreclosure cases for banks. This is particularly true in one of the epicenters of the foreclosure crisis, Florida.

As we’ve noted before, the feds in Jacksonville recently started a criminal investigation of a company that is a top provider of the documentation used by banks in the foreclosure process. And a state-court judge ruled that a bank submitted a “fraudulent” document in support of its foreclosure case. That document was prepared by a local law firm.

For more Law Blog background on the foreclosure mess in our nation’s courts, this post will help.

The news today: the Florida Attorney General’s office said it has launched a civil investigation of Florida Default Law Group, based in Tampa, which is one of the largest so-called foreclosure-mill law firms in the state.

According to the AG’s website, it’s looking at whether the firm is “fabricating and/or presenting false and misleading documents in foreclosure cases.” It added: “These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient.”

The issue: judges are increasingly running into situations in which banks are claiming ownership of properties they actually don’t own. Some of them end up chewing out the lawyers representing the banks.

The AG’s office said Florida Default Law Group appears to work closely with Lender Processing Services — the company we referenced earlier that is being investigated by the Justice Department.

LPS processes and sometimes produces documents needed by banks to prove they own the mortgages. LPS often works with local lawyers who litigate the foreclosure cases in court. Sometimes those same law firms produce documents that are required to prove ownership.

We’ve reached out to Florida Default Law Group and LPS and will let you know if we hear back.

Posted in concealment, conspiracy, corruption, DOCX, FDLG, florida default law group, foreclosure fraud, foreclosure mills, Lender Processing Services Inc., LPSComments (0)

*BREAKING NEWS* Economic Crimes Division in Ft. Lauderdale, Florida *INVESTIGATING* FLORIDA DEFAULT LAW GROUP “FORECLOSURE MILL” & LENDER PROCESSING SERVICES “DOCx, LLC”

*BREAKING NEWS* Economic Crimes Division in Ft. Lauderdale, Florida *INVESTIGATING* FLORIDA DEFAULT LAW GROUP “FORECLOSURE MILL” & LENDER PROCESSING SERVICES “DOCx, LLC”


UPDATE: Cannot confirm YET but others might be as well! Stay Tuned!

FDLG, LPS’ DocX is being investigated…lets see who’s next!

If you have evidence of Fraud make sure you contact them.

Active Public Consumer-Related Investigation

The case file cited below relates to a civil — not a criminal — investigation. The existence of an investigation does not constitute proof of any violation of law.
Case Number: L10-3-1095
Subject of investigation: Florida Default Law Group, PL
Subject’s address: 9119 Corporate Lake Drive, Suite 300, Tampa, Florida 33634
Subject’s business: Law Firm, Foreclosures
Allegation or issue being investigated:
Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms in the State. This firm appears to be one of Docx, LLC a/k/a Lender Processing Services’ clients, who this office is also investigating.
AG unit handling case: Economic Crimes Division in Ft. Lauderdale, Florida
View contact information for Ft. Lauderdale.
Related Stories:

MISSION: VOID Lender Processing Services “Assignments” (LPS)

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in DOCX, florida default law group, foreclosure fraud, Lender Processing Services Inc., LPSComments (4)

Borrower Bailout?: Goldman Sachs Conveyor Belt

Borrower Bailout?: Goldman Sachs Conveyor Belt


 Via: Livinglies

Borrower Bailout?: Goldman Sachs Conveyor Belt

  • If you have a GSAMP securitized loan you might want to pay particular attention here. In fact, if you ever had a securitized loan of any kind you should be very interested.
  • Hudson Mezzanine: The use of the word “mezzanine” is like the use of the word “Trust.” There is no mezzanine and there is no trust in the legal sense. It is merely meant to convey the fact that a conduit was being used to front multiple transactions — any one of which could be later moved around because the reference to the conduit entity does not specifically incorporate the exhibits to the conduit.
  • The real legal issue here is who owns the profit from these deals? The profit is derived from insurance. The cost of insurance was funded from the securitized chain starting with the sale of securities to investors for money that was pooled.
  • That pool was used in part to fund mortgages and insurance bets that those mortgages would fail. 93% of the sub-prime mortgages rated Triple AAA got marked down to junk level even if they did not fail, and insurance paid off because of the markdown. That means money was paid based upon loans executed by borrowers, whether they were or are default or not.
  • If enough of the pool consisted of sub-prime mortgages, the the entire pool was marked down and insurance paid off. So whether you have a sub-prime mortgage or a conventional mortgage, whether you are up to date or in default, there is HIGH PROBABILITY that a payment has been made from insurance which should be allocated to your loan, whether foreclosed or not.
  • The rest of the proceeds of investments by investors went as fees and profits to middlemen. If you accept the notion that the entire securitization chain was a single transaction in which fraud was the principal ingredient on both ends (homeowners and ivnestors), then BOTH the homeowner borrowers and the investors have a claim to that money.
  • Homeowners have a claim for undisclosed compensation under the Truth in Lending Act and Investors have a claim under the Securities laws.  (That is where these investor lawsuits and settlements come from).
  • What nobody has done YET is file a claim for borrowers. The probable reason for this is that the securities transactions giving rise to these profits seem remote from the loan transaction. But if they arose BECAUSE of the execution of the loan documents by the borrower, then lending laws apply, along with REG Z from the Federal reserve. The payoff to borrowers is huge, potentially involving treble damages, interest, court costs and attorney fees.
  • Under common law fraud and just plain common sense, there is no legal basis for allowing the perpetrator of a fraud to keep the benefits arising out of the the fraud. So who gets the money?
April 26, 2010

Mortgage Deals Under Scrutiny as Goldman Faces Senators

By LOUISE STORY

WASHINGTON — The legal storm buffeting Goldman Sachs continued to rage Tuesday just ahead of what is expected to be a contentious Senate hearing at which bank executives plan to defend their actions during the housing crisis.

Senate investigators on Monday claimed that Goldman Sachs had devised not one but a series of complex deals to profit from the collapse of the home mortgage market. The claims suggested for the first time that the inquiries into Goldman were stretching beyond the sole mortgage deal singled out by the Securities and Exchange Commission. The S.E.C. has accused Goldman of defrauding investors in that single transaction, Abacus 2007-AC1, have thrust the bank into a legal whirlwind.

The stage for Tuesday’s hearing was set with a flurry of new documents from the panel, the Permanent Senate Subcommittee on Investigations. That was preceded by a press briefing in Washington, where the accusations against Goldman have transformed the politics of financial reform.

In the midst of this storm, Lloyd C. Blankfein, Goldman’s chairman and chief executive, plans to sound a conciliatory note on Tuesday.

In a statement prepared for the hearing and released on Monday, Mr. Blankfein said the news 10 days ago that the S.E.C. had filed a civil fraud suit against Goldman had shaken the bank’s employees.

“It was one of the worst days of my professional life, as I know it was for every person at our firm,” Mr. Blankfein said. “We have been a client-centered firm for 140 years, and if our clients believe that we don’t deserve their trust we cannot survive.”

Mr. Blankfein will also testify that Goldman did not have a substantial, consistent short position in the mortgage market.

But at the press briefing in Washington, Carl Levin, the Democrat of Michigan who heads the Senate committee, insisted that Goldman had bet against its clients repeatedly. He held up a binder the size of two breadboxes that he said contained copies of e-mail messages and other documents that showed Goldman had put its own interests first.

“The evidence shows that Goldman repeatedly put its own interests and profits ahead of the interests of its clients,” Mr. Levin said.

Mr. Levin’s investigative staff released a summary of those documents, which are to be released in full on Tuesday. The summary included information on Abacus as well as new details about other complex mortgage deals.

On a page titled “The Goldman Sachs Conveyor Belt,” the subcommittee described five other transactions beyond the Abacus investment.

One, called Hudson Mezzanine, was put together in the fall of 2006 expressly as a way to create more short positions for Goldman, the subcommittee claims. The $2 billion deal was one of the first for which Goldman sales staff began to face dubious clients, according to former Goldman employees.

“Here we are selling this, but we think the market is going the other way,” a former Goldman salesman told The New York Times in December.

Hudson, like Goldman’s 25 Abacus deals, was a synthetic collateralized debt obligation, which is a bundle of insurance contracts on mortgage bonds. Like other banks, Goldman turned to synthetic C.D.O.’s to allow it to complete deals faster than the sort of mortgage securities that required actual mortgage bonds. These deals also created a new avenue for Goldman and some of its hedge fund clients to make negative bets on housing.

Goldman also had an unusual and powerful role in the Hudson deal that the Senate committee did not highlight: According to Hudson marketing documents, which were reviewed on Monday by The Times, Goldman was also the liquidation agent in the deal, which is the party that took it apart when it hit trouble.

The Senate subcommittee also studied two deals from early 2007 called Anderson Mezzanine 2007-1 and Timberwolf I. In total, these two deals were worth $1.3 billion, and Goldman held about $380 million of the negative bets associated with the two deals.

The subcommittee pointed to these deals as examples of how Goldman put its own interests ahead of clients. Mr. Levin read from several Goldman documents on Monday to underscore the point, including one in October 2007 that said, “Real bad feeling across European sales about some of the trades we did with clients. The damage this has done to our franchise is very significant.”

As the mortgage market collapsed, Goldman turned its back on clients who came knocking with older Goldman-issued bonds they had bought. One example was a series of mortgage bonds known as Gsamp.

“I said ‘no’ to clients who demanded that GS should ‘support the Gsamp’ program as clients tried to gain leverage over us,” a mortgage trader, Michael Swenson, wrote in his self-evaluation at the end of 2007. “Those were unpopular decisions but they saved the firm hundreds of millions of dollars.”

The Gsamp program was also involved in a dispute in the summer of 2007 that Goldman had with a client, Peleton Partners, a hedge fund founded by former Goldman workers that has since collapsed because of mortgage losses.

According to court documents reviewed by The Times on Monday, in June 2007, Goldman refused to accept a Gsamp bond from Peleton in a dispute over the securities that backed up a mortgage security called Broadwick. A Peleton partner was pointed in his response after Goldman refused the Gsamp bond.

“We do appreciate the unintended irony,” wrote Peter Howard, a partner at Peleton, in an e-mail message about the Gsamp bond.

Bank of America ended up suing Goldman over the Broadwick deal. The parties are awaiting a written ruling in that suit. Broadwick was one of a dozen or so so-called hybrid C.D.O.’s that Goldman created in 2006 and 2007. Such investments were made up of both mortgage bonds and insurance contracts on mortgage bonds.

While such hybrids have received little attention, one mortgage researcher, Gary Kopff of Everest Management, has pointed to a dozen other Goldman C.D.O.’s, including Broadwick, that were mixes of mortgage bonds and insurance policies. Those deals — with names like Fortius I and Altius I — may have been another method for Goldman to obtain negative bets on housing.

“It was like an insurance policy that Goldman stuck in the middle of the sandwich with all the other subprime bonds,” Mr. Kopff said. “And it was an insurance policy designed to protect them.”

An earlier version of this article misidentified Senator Levin’s home state.

Relatated Stories:

Shareholders Sue Goldman, Blankfein Confirming Trusts Do NOT Own the Loans

Posted in cdo, concealment, conspiracy, corruption, foreclosure fraud, goldman sachs, hank paulson, john paulson, livinglies, matt taibbi, neil garfield, S.E.C., securitizationComments (1)

REO FRAUD: "I told you…I was trouble, You know that I'm (title) No GOOD!"

REO FRAUD: "I told you…I was trouble, You know that I'm (title) No GOOD!"


All over the US there is mass title defects that have been created to our homes…we are being evicted and titles to our stolen homes are being fabricated by means of Forgery/FRAUD! If these homes have been stolen from us…we have the right to claim them back! Let the unsuspecting homeowner who buys your home that it was fraudulently taken from you! What happens when your car is stolen and reclaimed? It goes back to it’s owner!

Stop by, say hello to the new owner of your stolen home and welcome them to the bogus neighborhood! Oh make sure to show some hospitality and bring them a gift…Umm your Foreclosure Mill Docs!

[youtube=http://www.youtube.com/watch?v=zQ9p6ZFquNY]

 

 

Posted in concealment, conspiracy, corruption, foreclosure fraud, foreclosure mills, robo signer, robo signers, roger stottsComments (0)

Judge Bashes Bank in Foreclosure Case: The Wall Street Journal

Judge Bashes Bank in Foreclosure Case: The Wall Street Journal


Now you know when the Law Offices of David J. Stern reaches the Wall Street Journal, we certainly are getting our point A C R O S S! Thank You AMIR!

LAW APRIL 16, 2010, 11:20 P.M. ET

Judge Bashes Bank in Foreclosure Case

By AMIR EFRATI

A Florida state-court judge, in a rare ruling, said a major national bank perpetrated a “fraud” in a foreclosure lawsuit, raising questions about how banks are attempting to claim homes from borrowers in default.

The ruling, made last month in Pasco County, Fla., comes amid increased scrutiny of foreclosures by the prosecutors and judges in regions hurt by the recession. Judges have said in hearings they are increasingly concerned that banks are attempting to seize properties they don’t own.

Case Documents

Cases handled by the Law Offices of David Stern

The Florida case began in December 2007 when U.S. Bank N.A. sued a homeowner, Ernest E. Harpster, after he defaulted on a $190,000 loan he received in January of that year.

The Law Offices of David J. Stern, which represented the bank, prepared a document called an assignment of mortgage” showing that the bank received ownership of the mortgage in December 2007. The document was dated December 2007.

But after investigating the matter, Circuit Court Judge Lynn Tepper ruled that the document couldn’t have been prepared until 2008. Thus, she ruled, the bank couldn’t prove it owned the mortgage at the time the suit was filed.

The document filed by the plaintiff, Judge Tepper wrote last month, “did not exist at the time of the filing of this action…was subsequently created and…fraudulently backdated, in a purposeful, intentional effort to mislead.” She dismissed the case.

Forrest McSurdy, a lawyer at the David Stern firm that handled the U.S. Bank case, said the mistake was due to “carelessness.” The mortgage document was initially prepared and signed in 2007 but wasn’t notarized until months later, he said. After discovering similar problems in other foreclosure cases, he said, the firm voluntarily withdrew the suits and later re-filed them using appropriate documents.

“Judges get in a whirl about technicalities because the courts are overwhelmed,” he said. “The merits of the cases are the same: people aren’t paying their mortgages.”

Steve Dale, a spokesman for U.S. Bank, said the company played a passive role in the matter because it represents investors who own a mortgage-securities trust that includes the Harpster loan. He said a division of Wells Fargo & Co., which collected payments from Mr. Harpster, initiated the foreclosure on behalf of the investors.

Wells Fargo said in a statement it “does not condone, accept, nor instruct counsel to take actions such as those taken in this case.” The company said it was “troubled” by the “conclusions the Court found as to the actions of this foreclosure attorney. We will review these circumstances closely and take appropriate action as necessary.”

Since the housing crisis began several years ago, judges across the U.S. have found that documents submitted by banks to support foreclosure claims were wrong. Mistakes by banks and their representatives have also led to an ongoing federal criminal probe in Florida.

Some of the problems stem from the difficulty banks face in proving they own the loans, thanks to the complexity of the mortgage market.

The Florida ruling against U.S. Bank was also a critique of law firms that handle foreclosure cases on behalf of banks, dubbed “foreclosure mills.”

Lawyers operating foreclosure mills often are paid based on the volume of cases they complete. Some receive $1,000 per case, court records show. Firms compete for business in part based on how quickly they can foreclose. The David Stern firm had about 900 employees as of last year, court records show.

“The pure volume of foreclosures has a tendency perhaps to encourage sloppiness, boilerplate paperwork or a lack of thoroughness” by attorneys for banks, said Judge Tepper of Florida, in an interview. The deluge of foreclosures makes the process “fraught with potential for fraud,” she said.

At an unrelated hearing in a separate matter last week, Anthony Rondolino, a state-court judge in St. Petersburg, Fla., said that an affidavit submitted by the David Stern law firm on behalf of GMAC Mortgage LLC in a foreclosure case wasn’t necessarily sufficient to establish that GMAC was the owner of the mortgage.

“I don’t have any confidence that any of the documents the Court’s receiving on these mass foreclosures are valid,” the judge said at the hearing.

A spokesman for GMAC declined to comment and a lawyer at the David Stern firm declined to comment.

Write to Amir Efrati at amir.efrati@wsj.com

Related Articles

U.S. Probes Foreclosure-Data Provider
4/3/2010

Two Different Plaintiffs Claim to Own Same Mortgage
11/14/2008

Some Judges Stiffen Foreclosure Standards
7/26/2008

The Court House: How One Family Fought Foreclosure
11/28/2007

Judges Tackle “Foreclosure Mills”
11/30/2007

Wells Fargo Is Sanctioned For Role in Mortgage Woes
4/30/2008

Judge reversed his own ruling that had granted summary judgment to GMAC Mortgage (DAVID J. STERN)

GMAC v Visicaro Case No 07013084CI: florida judge reverses himself: applies basic rules of evidence and overturns his own order granting motion for summary judgment

OVERRULED!!! Florida Judge Reverses His own Summary Judgment Order!

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, CONTROL FRAUD, corruption, djsp enterprises, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forensic mortgage investigation audit, Law Offices Of David J. Stern P.A., MERS, us bankComments (2)

Dylan Ratigan does a great job explaining the con: GOLDMAN SACHS

Dylan Ratigan does a great job explaining the con: GOLDMAN SACHS


The SEC’s complaint charges Goldman Sachs and Tourre with violations of Section 17(a) of the Securities Act of 1933, Section 10(b) of the Securities Exchange Act of 1934, and Exchange Act Rule 10b-5. The Commission seeks injunctive relief, disgorgement of profits, prejudgment interest, and financial penalties.

[youtube=http://www.youtube.com/watch?v=V4_v2kREE-o]

[youtube=http://www.youtube.com/watch?v=copoiSMihL8]

 

Many recall this post below:

Move over GOLDMAN SACHS…WE have a New Player to this Housing “Betting” Crisis…NASDAQ Presenting the Law Offices of David J. Stern, P.A. (“DJS”)

Posted in concealment, conspiracy, corruption, geithner, goldman sachs, hank paulson, john paulson, S.E.C., scamComments (0)

U.S. Accuses Goldman Sachs of Fraud: THE NEW YORK TIMES

U.S. Accuses Goldman Sachs of Fraud: THE NEW YORK TIMES


U.S. Accuses Goldman Sachs of Fraud

Brendan McDermid/Reuters The new Goldman Sachs global headquarters in Manhattan.
By LOUISE STORY and GRETCHEN MORGENSON “GOTTA LOVE THESE TWO FOR THEIR EXCELLENT WORK”
Published: April 16, 2010

Goldman Sachs, which emerged relatively unscathed from the financial crisis, was accused of securities fraud in a civil suit filed Friday by the Securities and Exchange Commission, which claims the bank created and sold a mortgage investment that was secretly devised to fail.

The move marks the first time that regulators have taken action against a Wall Street deal that helped investors capitalize on the collapse of the housing market. Goldman itself profited by betting against the very mortgage investments that it sold to its customers.

The suit also named Fabrice Tourre, a vice president at Goldman who helped create and sell the investment.

The instrument in the S.E.C. case, called Abacus 2007-AC1, was one of 25 deals that Goldman created so the bank and select clients could bet against the housing market. Those deals, which were the subject of an article in The New York Times in December, initially protected Goldman from losses when the mortgage market disintegrated and later yielded profits for the bank.

As the Abacus deals plunged in value, Goldman and certain hedge funds made money on their negative bets, while the Goldman clients who bought the $10.9 billion in investments lost billions of dollars.

According to the complaint, Goldman created Abacus 2007-AC1 in February 2007, at the request of John A. Paulson, a prominent hedge fund manager who earned an estimated $3.7 billion in 2007 by correctly wagering that the housing bubble would burst.

Goldman let Mr. Paulson select mortgage bonds that he wanted to bet against — the ones he believed were most likely to lose value — and packaged those bonds into Abacus 2007-AC1, according to the S.E.C. complaint. Goldman then sold the Abacus deal to investors like foreign banks, pension funds, insurance companies and other hedge funds.

But the deck was stacked against the Abacus investors, the complaint contends, because the investment was filled with bonds chosen by Mr. Paulson as likely to default. Goldman told investors in Abacus marketing materials reviewed by The Times that the bonds would be chosen by an independent manager.

“The product was new and complex, but the deception and conflicts are old and simple,” Robert Khuzami, the director of the S.E.C.’s division of enforcement, said in a statement. “Goldman wrongly permitted a client that was betting against the mortgage market to heavily influence which mortgage securities to include in an investment portfolio, while telling other investors that the securities were selected by an independent, objective third party.”

Mr. Paulson is not being named in the lawsuit. In the half-hour after the suit was announced, Goldman Sachs’s stock fell by more than 10 percent.

In recent months, Goldman has repeatedly defended its actions in the mortgage market, including its own bets against it. In a letter published last week in Goldman’s annual report, the bank rebutted criticism that it had created, and sold to its clients, mortgage-linked securities that it had little confidence in.

“We certainly did not know the future of the residential housing market in the first half of 2007 anymore than we can predict the future of markets today,” Goldman wrote. “We also did not know whether the value of the instruments we sold would increase or decrease.”

The letter continued: “Although Goldman Sachs held various positions in residential mortgage-related products in 2007, our short positions were not a ‘bet against our clients.’ ” Instead, the trades were used to hedge other trading positions, the bank said.

In a statement provided in December to The Times as it prepared the article on the Abacus deals, Goldman said that it had sold the instruments to sophisticated investors and that these securities “were popular with many investors prior to the financial crisis because they gave investors the ability to work with banks to design tailored securities which met their particular criteria, whether it be ratings, leverage or other aspects of the transaction.”

Goldman was one of many Wall Street firms that created complex mortgage securities — known as synthetic collateralized debt obligations — as the housing wave was cresting. At the time, traders like Mr. Paulson, as well as those within Goldman, were looking for ways to short the overheated market.

Such investments consisted of insurance-like policies written on mortgage bonds. If the mortgage market held up and those bonds did well, investors who bought Abacus notes would have made money from the insurance premiums paid by investors like Mr. Paulson, who were negative on housing and had bought insurance on mortgage bonds. Instead, defaults spread and the bonds plunged, generating billion of dollars in losses for Abacus investors and billions in profits for Mr. Paulson.

For months, S.E.C. officials have been examining mortgage bundles like Abacus that were created across Wall Street. The commission has been interviewing people who structured Goldman mortgage deals about Abacus and other, similar instruments. The S.E.C. advised Goldman that it was likely to face a civil suit in the matter, sending the bank what is known as a Wells notice.

Mr. Tourre was one of Goldman’s top workers running the Abacus deal, peddling the investment to investors across Europe. Raised in France, Mr. Tourre moved to the United States in 2000 to earn his master’s in operations at Stanford. The next year, he began working at Goldman, according to his profile in LinkedIn.

He rose to prominence working on the Abacus deals under a trader named Jonathan M. Egol. Now a managing director at Goldman, Mr. Egol is not being named in the S.E.C. suit.

Goldman structured the Abacus deals with a sharp eye on the credit ratings assigned to the mortgage bonds associated with the instrument, the S.E.C. said. In the Abacus deal in the S.E.C. complaint, Mr. Paulson pinpointed those mortgage bonds that he believed carried higher ratings than the underlying loans deserved. Goldman placed insurance on those bonds — called credit-default swaps — inside Abacus, allowing Mr. Paulson to short them while clients on the other side of the trade wagered that they would not fail.

But when Goldman sold shares in Abacus to investors, the bank and Mr. Tourre only disclosed the ratings of those bonds and did not disclose that Mr. Paulson was on other side, betting those ratings were wrong.

Mr. Tourre at one point complained to an investor who was buying shares in Abacus that he was having trouble persuading Moody’s to give the deal the rating he desired, according to the investor’s notes, which were provided to The Times by a colleague who asked for anonymity because he was not authorized to release them.

In seven of Goldman’s Abacus deals, the bank went to the American International Group for insurance on the bonds. Those deals have led to billions of dollars in losses at A.I.G., which was the subject of an $180 billion taxpayer rescue. The Abacus deal in the S.E.C. complaint was not one of them.

That deal was managed by ACA Management, a part of ACA Capital Holdings, which changed its name in 2008 to Manifold Capital Holdings.

Goldman at first intended for the deal to contain $2 billion of mortgage exposure, according to the deal’s marketing documents, which were given to The Times by an Abacus investor.

On the cover of that flip-book, it says that the mortgage bond portfolio would be “selected by ACA Management.”

In that flip-book, it says that Goldman may have long or short positions in the bonds. It does not mention Mr. Paulson or say that Goldman was in fact short.

The Abacus deals deteriorated rapidly when the housing market hit trouble. For instance, in the Abacus deal in the S.E.C. complaint, 84 percent of the mortgage bonds underlying it were downgraded by rating agencies just five months later, according to a UBS report.

It takes time for such mortgage investments to pay out for investors who short them, like Mr. Paulson. Each deal is structured differently, but generally, the bonds underlying the investment must deteriorate to a certain point before short-sellers get paid. By the end of 2007, Mr. Paulson’s credit hedge fund was up 590 percent.

Mr. Paulson’s firm, Paulson & Company, is paid a management fee and 20 percent of the annual profits that its funds generate, according to a Paulson investor document from late 2008 titled “Navigating Through the Crisis.”

Posted in concealment, conspiracy, corruption, goldman sachs, john paulsonComments (2)

GATH' AROUND…Stocks Fall, Treasurys, Dollar Rise, On SEC Goldman Charges

GATH' AROUND…Stocks Fall, Treasurys, Dollar Rise, On SEC Goldman Charges


Lets not act surprised…GS is going to turn into Butta’ all the wealth created is/was all an illusion…I bet “oil” is next…watch!

This might be the key that opens up Pandora’s Little Big Box! “John Paulson”

APRIL 16, 2010, 11:26 A.M. ET

Stocks Fall, Treasurys, Dollar Rise, On SEC Goldman Charges

By Michael J. Casey Of DOW JONES NEWSWIRES

NEW YORK (Dow Jones)–Stocks fell and Treasurys rose as news of Securities and Exchange Commission charges against Goldman Sachs Group Inc. (GS) sparked a flight out of risky assets.

The SEC said Goldman Sachs failed to disclose to investors vital information about a synthetic collateralized debt obligation, or CDO, based on subprime mortgage-backed securities–in particular the role played by a major hedge fund that had bet against the CDO. Subprime CDOs were at the heart of the recent financial crisis.

In response, investors moved into safe haven assets and out of riskier securities, buying Treasurys and the dollar, while selling stocks and commodities.

“The revival of risk aversion has benefited traditional safe-haven assets, like the dollar and the Japanese yen,” said Omer Esiner, senior market analyst at Travelex Global Business Payments in Washington.

Noting that the complaint is focused on a specific incident, he said the broad flight out of risk appeared to be a “knee-jerk reaction.”

Golmdan stock was down 12.45% to $161.33 on the news. The Dow Jones Industrial Average was down 86 points at 11057, while the 10-year Treasury note was up 17/32 to yield 3.778%. Gold futures, which have tended to rise with commodities and other risk assets over the past year, were down 1.4%, according the most active June contract.

The euro plummeted to $1.3486 from $1.3577 late Thursday, according to EBS via CQG, while the dollar fell to Y92.11 from Y93.04.

“That word ‘fraud’ is the key. When you throw that word fraud in there, all bets are off then,” said Jay Suskind, senior vice president of Duncan-Williams.

-By Michael Casey; Dow Jones Newswires; 212-416-2209; michael.j.casey@dowjones.com

 (Bradley Davis and Kristina Peterson contributed to this report.)

Posted in goldman sachs, john paulsonComments (0)

OVERRULED!!! Florida Judge Reverses His own Summary Judgment Order!

OVERRULED!!! Florida Judge Reverses His own Summary Judgment Order!


Lets See if the END IS NEAR for these FRAUD MILLS!

THIS WAS MY CASE!!! SAME FRAUD MILL!!! SAME AS EVERYONE!!!

From 4closureFraud

Another Great Contribution by Matthew Weidner.

Search this blog and you will see that for months now I’ve been arguing that the “evidence” submitted by Plaintiffs in foreclosure cases does not even come close to meeting the legal and evidentiary requirements for courts to grant summary judgment.

After performing extensive legal research to confirm this hunch, I have drafted and filed detailed memoranda, supported by all available case law, that stands for the proposition that the practices used by virtually every foreclosure mill in the state do not provide the evidentiary basis for a court to grant summary judgment.

So why are courts across this state continuing to grant summary judgment?  There really is NO LEGAL BASIS TO SUPPORT THE GRANTING OF SUMMARY JUDGMENT IN THE VAST MAJORITY OF FORECLOSURE CASES CURRENTLY FILED IN COURTS ACROSS THIS STATE.

I attach here the most fantastic transcript of a hearing I’ve heard in a long time.  This transcript shows a couple things:

First, the judges in the Sixth Circuit of Florida really, really get it.

Second, this particular judge goes far and above to do his job and deliver real, hard, honest legal work.

Third, as I mentioned above…the current processes and procedures used by the foreclosure mills do not provide courts the evidentiary or legal basis required to grant summary judgment.

But now the big question that comes to mind….now that this judge gets it…and now that my memos and others like my friend and fellow Foreclosure Fighter Mike Wasylik are starting to leak out there…

What happens to all the hundreds of thousands of homes that have been foreclose on by improper evidence?

Some excerpts from the begging of the transcript… Be sure to read it in its entirety. It is an absolute must read…

Gmac Mortgage LLC

v

Debbie Visicaro, et al.

April 7, 2010

THE COURT: Okay, we are here today in GMAC v Visicaro. This is a motion for rehearing the previously drafted motion for summary judgement…

MR. WASYLIK: I am here for Defendants… We have submitted a fairly detailed brief…

THE COURT: What’s the Plaintiff’s position regarding the motion…

MR FRAISER: I object… You’ve considered all the evidence before when you entered the summary judgment back in January 2010. The opposing party then could not support their position on any genuine material facts. Right now, Your Honor, there are no convincing exigent, you know, circumstances being offered up at the time.

THE COURT: Did you not read the motion? It sounds liker you’re making a very generalized argument, and this is an, as I viewed it, extremely targeted motion which basically elaborates on the assertions that were raised at the time of the motion for summary judgment.

As I recall that, counsel appeared on behalf of his clients, I think it was by phone and made arguments that the Court really gave short shrift to it, did not review the case…

Since that time, the Court delved further into it

I’ve had several events which have occurred in cases which cause the Court to have great concern about the validity of fillings in our mortgage foreclosure cases, and that precipitated my reevaluation of the evidentiary considerations.

I’ll give you an example of that. I have one case that was called up for summary judgment hearing, and I thought it was going to be the typical granted situation, and then a lawyer showed up for the defendant homeowner.

I was beginning to recite to the lawyer what I had typically recited, that there was no affidavit in opposition. And the lawyer said, “Well, I thought you might want to see this,” and handed me some documents which were from another file in our circuit, and it turned out, it was the same note and mortgage that was in a separate and independent file.

There was a different plaintiff pursuing a foreclosure proceeding on the same note and mortgage as the one that was being proceeded on. Both of the cases contained allegations in the original complaints that the separate plaintiffs were owners and holders of the note. Both of them had gone so far to have affidavits filed in support of a summary judgment whereby an individual represented to the court in the affidavit that the separate plaintiffs had possessed the note and had lost the note while it was in their possession.

Interestedly, both affidavits, although they were different plaintiffs, purported the same facts and they were executed by the same individual in alleged capacity as a director of two separate corporations, one of which was ultimately found to me to be an assignee of the original note…

So that really increased my interest in this subject matter, because

I really honestly don’t have any confidence that any of the documents the Courts are receiving on these mass foreclosures are valid…

So I’ve said enough…

Honorable
Anthony Rondolino

Be sure to read the transcript in its entirety below…

Judge reversed his own ruling that had granted summary judgment to GMAC Mortgage (DAVID J. STERN)

Posted in concealment, conspiracy, corruption, foreclosure mills, Law Offices Of David J. Stern P.A., matt weidner blog, Mortgage Foreclosure Fraud, noteComments (1)

Mortgage series part 8—they are trying to steal your house after they already stole your money

Mortgage series part 8—they are trying to steal your house after they already stole your money


user

Mortgage series part 8—they are trying to steal your house after they already stole your money

By: Cynthia Kouril Tuesday April 6, 2010 4:19 am

Imagine, if you will, a bank sets up a mortgage backed security.  The security is backed by a trust that holds all the mortgages and notes. The trust document says that all of the mortgages that would be included in that particular security had to be transferred into the trust by a particular date. That date is long since passed.

You are now in foreclosure, and attached to the summons and complaint is a copy of an assignment of your mortgage, within the last few days before the date of the summons and complaint, transferring your mortgage into the trust. What does that all mean?

It could  mean that the trustee did not actually own your mortgage and that all the money that you have paid on that mortgage that went to pay the holders of the security associated with that trust was paid to the wrong party.

Why? Because the mortgage was not transferred into the trust before your payments were directed to it. And the after the fact assignment doesn’t remedy it, because the trust was required to close the book on adding new mortgages into the trust, on a date long since passed. So, the trustee accepted payments from you even though your mortgage was not a part of that trust. You were paying the wrong party.

Then to add insult to injury, the trustee is trying to take your home away.

Oh, and the last minute assignment –may be a forgery.  Ain’t that just the icing on the cake?

These are the cranium exploding allegations being made by white collar fraud expert Lynn Szymoniak, Esq.

In a letter to an Assistant United States Attorney, Ms. Szymoniak alleges

This letter concerns possible fabricated and forged mortgage-related documents that are being filed by banks in foreclosure actions in Massachusetts, Florida and throughout the country.

These documents were prepared by a company known as DOCX, LLC, a company that claims to “expedite” the mortgage foreclosure process for banks and mortgage lenders. DOCX is located in Alpharetta, Georgia, and is owned by a Jacksonville, Florida company, Fidelity National Financial, Inc.

In many cases, DOCX has provided Assignments so that banks that have purchased mortgages from the original lender may pursue foreclosure even when the proper documents have not been prepared, executed and filed. These documents very often appear in cases where the mortgage has been purchased, and combined with others to create to an asset-back security. Deutsche Bank National Trust Company is one of the banks that have frequently used mortgage-related documents prepared by DOCX.

 

Similar letters have been sent to Phil Angelides, Sheila Bair, Barnie Frank, a Clerk of the Court in Florida, and a Florida State’s Attorney.

Ms. Szymoniak goes on to reveal that clerks at DOCX are signing these documents pretending to be employees of varies banks and other financial institutions. For example:

… on mortgage documents prepared by DOCX, since January 1, 2006, Linda Green has signed as a Vice President of at least eight different banks and mortgage companies, including: Bank of America, Wells Fargo Bank, Option One Mortgage Corporation, American Home Mortgage Servicing, American Home Mortgage Acceptance, Argent Mortgage Company, LLC, Sand Canyon Corporation, and Mortgage Electronic Registration Systems, Inc., acting solely as a nominee for HLB Mortgage.

Korell Harp’s purported signature appears on documents where he is identified as Vice President of MERS as nominee for Quick Loan Funding, Vice president and Assistant Secretary for Argent Mortgage Company, Authorized Signer for USAA Federal Savings Bank, Vice President of American Home Mortgage Servicing, Inc., as successor-in- interest to Option One Mortgage Corporation, Vice President of American Home Mortgage Acceptance, Inc., and Vice President of Sand Canyon Corporation.

 Tywanna Thomas’s purported signature appears on documents where she is identified as Assistant Vice President of MERS, as nominee for Quick Loan Funding, Inc.; Assistant Secretary of MERS, as nominee for American Home Mortgage Acceptance, Inc.; Assistant Vice President of Sand Canyon Corporation, formerly known as Option One Mortgage; and Vice President & Assistant Secretary of Argent Mortgage Company.

 Other names that appear on hundreds of DOCX assignments, as officers of many different banks, include Jessica Odhe, Brent Bagley, Christie Baldwin, Cheryl Thomas and Linda Thoresen. These documents have all been notarized in Fulton County, Georgia. An examination of the signatures also reveals that the signatures of the same person vary significantly.

Via: http://seminal.firedoglake.com/diary/39238

Posted in concealment, conspiracy, corruption, DOCX, erica johnson seck, FIS, foreclosure fraud, foreclosure mills, fraud digest, Lender Processing Services Inc., LPS, Lynn Szymoniak ESQ, robo signer, robo signersComments (0)

LPS Offers Clarification to Recent Article: PRNewsWire

LPS Offers Clarification to Recent Article: PRNewsWire


Not Sooooo Fast! What corrections have you made here… exactly?? Have you corrected the families who are torn apart? Have you made corrections to notified all the many who lost their home by this? Have you made corrections to notify the lenders? Click Here

LPS Offers Clarification to Recent Article 

JACKSONVILLE, Fla., April 5 /PRNewswire-FirstCall/ — Lender Processing Services, Inc. (NYSE: LPS), a leading provider of integrated technology and services to the mortgage industry, today provided clarification to a recent article published by the Wall Street Journal.

As indicated in LPS’ most recent Form 10-K, filed in February 2010, LPS reported that during an internal review of the business processes used by its document solutions subsidiary, the Company identified a business process that caused an error in the notarization of certain documents, some of which were used in foreclosure proceedings in various jurisdictions around the country.

The services performed by this subsidiary were offered to a limited number of customers, were unrelated to the Company’s core default management services and were immaterial to the Company’s financial results. LPS immediately corrected the business process and has completed the remedial actions necessary to minimize the impact of the error.

LPS subsequently received an inquiry relating to this matter from the Clerk of Court of Fulton County, Georgia, which is the regulatory body responsible for licensing the notaries used by the Company’s document solutions subsidiary. In response, LPS met with the Clerk of Court, along with members of her staff, and reported on the Company’s identification of the error and the status of the corrective actions that were underway. LPS has since completed its remediation efforts with respect to all of the affected documents and believes the Clerk of the Court has completed its review and closed the matter.

As stated in the Company’s Form 10-K, the U.S. Attorney’s office for the Middle District of Florida is reviewing the business processes of this subsidiary. LPS has expressed its willingness to fully cooperate with the U.S. Attorney. LPS continues to believe that it has taken necessary remedial action with respect to this matter.

About Lender Processing Services

LPS is a leading provider of integrated technology and services to the mortgage industry. LPS offers solutions that span the mortgage continuum, including lead generation, origination, servicing, portfolio retention, risk management and default, augmented by the company’s award-winning customer support and professional services. Approximately 50 percent of all U.S. mortgages are serviced using LPS’ MSP. LPS also offers proprietary mortgage and real estate data and analytics for the mortgage and capital markets industries. For more information about LPS, please visit www.lpsvcs.com.

SOURCE Lender Processing Services, Inc.

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RELATED LINKS
http://www.lpsvcs.com

PRNewsWire.com

Posted in fraud digest, Lender Processing Services Inc., LPS, Lynn Szymoniak ESQComments (0)

Mortgage Fraud: Lender Processing Services by Lynn Szymoniak, ESQ.

Mortgage Fraud: Lender Processing Services by Lynn Szymoniak, ESQ.


Mortgage Fraud 

Lender Processing Services
 

Action Date: April 4, 2010 
Location: Jacksonville, FL 

In the first 3 days of April, 2010, the Wall Street Journal and the Jacksonville Business Journal both reported that Lender Processing Services was the subject of a federal criminal investigation involving a subsidiary company, Docx, LLC in Alpharetta, Georgia. A representative of the company reportedly acknowledged the investigation. Foreclosure defense blogs, and this website, have reported some of the problems with mortgage assignments prepared by Docx including Assignments where the grantor or grantee was described as “Bogus Assignee for Intervening Asmts” or “A Bad Bene.” Docx also produced many assignments with an effective date of 9/9/9999. In other cases, the effective date was listed as 1950. Other Assignments listed the amount of the original mortgage as $.00 or $.01. Still other assignments were missing signatures. The Docx office has produced over one million mortgage assignments in the last few years and filed these assignments in recorders’ offices across the country. How many Assignments were defective? Did any foreclosures occur based on the defective documents? Were court clerks notified of the defective assignments? Were borrowers notified? Were mortgage companies and banks notified? The company disclosures to date raise even more questions regarding the role of document mills in the national foreclosure crisis. Courts and litigants everywhere will be waiting for more complete disclosures. 

Posted in concealment, conspiracy, corruption, DOCX, FIS, foreclosure fraud, foreclosure mills, forensic mortgage investigation audit, fraud digest, Lender Processing Services Inc., LPS, Lynn Szymoniak ESQ, robo signer, robo signersComments (8)

U.S. Probing LPS Unit Docx LLC: Report REUTERS

U.S. Probing LPS Unit Docx LLC: Report REUTERS


By REUTERS Published: April 3, 2010
Reuters

CHICAGO (Reuters) – A unit of Lender Processing Services Inc, a U.S. provider of paperwork used by banks in the foreclosure process, is being investigated by federal prosecutors, the Wall Street Journal reported on Saturday.

Citing people familiar with the matter, the newspaper said a government probe into the business practices of the LPS unit was “criminal in nature.” According to the report, the probe was disclosed in LPS’s annual report in February.

The subsidiary being investigated is Docx LLC, which processes and sometimes produces documents used by banks to prove they own mortgages, the report said.

According to the report, among Docx documents being reviewed was one that incorrectly claimed an entity called “Bogus Assignee” was the owner of the loan.

The report cited LPS spokeswoman Michelle Kersch as saying that the “bogus” phrase was used as a placeholder and that some documents had been “inadvertently recorded before the field was updated.”

(Writing by James B. Kelleher)

Posted in concealment, conspiracy, corruption, DOCX, foreclosure fraud, foreclosure mills, Lender Processing Services Inc., LPS, Lynn Szymoniak ESQComments (2)

U.S. Probes Foreclosure-Data Provider:Lender Processing Services Unit Draws Inquiry Over the Steps That Led to Faulty Bank Paperwork (LPS VIDEOS)

U.S. Probes Foreclosure-Data Provider:Lender Processing Services Unit Draws Inquiry Over the Steps That Led to Faulty Bank Paperwork (LPS VIDEOS)


Keep in mind this is only on the Georgia Subsidiary “DocX” mean while back at the ranch in Minnesota much, much, much more fraud has been created see the videos below.

APRIL 3, 2010 The Wall Street Journal

U.S. Probes Foreclosure-Data Provider

Lender Processing Services Unit Draws Inquiry Over the Steps That Led to Faulty Bank Paperwork

By AMIR EFRATI and CARRICK MOLLENKAMP

A subsidiary of a company that is a top provider of the documentation used by banks in the foreclosure process is under investigation by federal prosecutors.

The prosecutors are “reviewing the business processes” of the subsidiary of Lender Processing Services Inc., based in Jacksonville, Fla., according to the company’s annual securities filing released in February. People familiar with the matter say the probe is criminal in nature.

Michelle Kersch, an LPS spokeswoman, said the subsidiary being investigated is Docx LLC. Docx processes and sometimes produces documents needed by banks to prove they own the mortgages. LPS’s annual report said that the processes under review have been “terminated,” and that the company has expressed its willingness to cooperate. Ms. Kersch declined to comment further on the probe.

A spokesman for the U.S. attorney’s office for the middle district of Florida, which the annual report says is handling the matter, declined to comment.

The case follows on the dismissal of numerous foreclosure cases in which judges across the U.S. have found that the materials banks had submitted to support their claims were wrong. Faulty bank paperwork has been an issue in foreclosure proceedings since the housing crisis took hold a few years ago. It is often difficult to pin down who the real owner of a mortgage is, thanks to the complexity of the mortgage market.

During the housing boom, mortgages were originated by lenders, quickly sold to Wall Street firms that bundled them into debt pools and then sold to investors as securities. The loans were supposed to change hands but the documents and contracts between borrowers and lenders often weren’t altered to show changes in ownership, judges have ruled.

That has made it hard for banks, which act on behalf of mortgage-securities investors in most foreclosure cases, to prove they own the loans in some instances.

LPS has said its software is used by banks to track the majority of U.S. residential mortgages from the time they are originated until the debt is satisfied or a borrower defaults. When a borrower defaults and a bank needs to foreclose, LPS helps process paperwork the bank uses in court.

LPS was recently referenced in a bankruptcy case involving Sylvia Nuer, a Bronx, N.Y., homeowner who had filed for protection from creditors in 2008.

Continue reading … The Wall Street Journal

[youtube=http://www.youtube.com/watch?v=hY4aRn6bWKg]

[youtube=http://www.youtube.com/watch?v=3tL8mNL4bYw]

[youtube=http://www.youtube.com/watch?v=9UbE6ryohJY]

and this is their video of the Minnesota Branch where they worry about “security”. I wonder if Christina Allen, Topako Love, Eric Tate, Laura Hescott were in this video?? Listen towards (4:41), they use “Delivery” or “Destruction“.

[youtube=http://www.youtube.com/watch?v=Ec4LpBa5nsk]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, DOCX, FIS, foreclosure fraud, foreclosure mills, Lender Processing Services Inc., LPSComments (5)

Feds Investigating LPS Subsidiary DOCX: Jacksonville Business Journal

Feds Investigating LPS Subsidiary DOCX: Jacksonville Business Journal


LPS statement “Technical Error” how about “HUMAN Robo-Signors FORGING, FABRICATING ERROR” to many tens-of- thousands (possibly in the miilions) of Assignmnet FRAUD “errors”. Preparing Docs in one state, Executing them in another and Notarizing in another? How about the signatures not matching the people who are signing? What about the folks in Minnesota where most of these were signed?

Via 4ClosureFraud

Well well well…

I wonder if this has anything to do with The Whole Country is BOGUS – Fabricated Mortgage Assignments All Over the Country???

Jacksonville Business Journal – by Rachel Witkowski Staff reporter

The U.S. Attorney’s Office in Tampa is investigating a subsidiary of Lender Processing Services Inc. that processes mortgage documents for lenders.

Jacksonville-based company (NYSE: LPS) stated in its 2009 annual report that the U.S. Attorney’s Office of the Middle District of Florida recently began inquiring about the business processes of a subsidiary, DOCX LLC, based in Alpharetta, Ga.

LPS also acknowledged that there was an “error” in DOCX’s business processes and LPS immediately corrected it, according to the annual report filed with the U.S. Securities and Exchange Commission.

“We have representatives speaking with the U.S. Attorney’s Office and we are cooperating with all inquiries made by the U.S. Attorney’s Office,” said Michelle Kersch, LPS’ senior vice president of marketing and corporate communications, in an e-mailed response. “We changed the business process that created the technical error, provided additional training to our employees and corrected documents.”

The U.S. Attorney’s Office declined to comment on its investigation.

Kersch said LPS was contacted by the U.S. Attorney’s Office in February. That same month, another investigation by the Clerk of Superior Court in Fulton County, Ga. into DOCX had closed without taking any further action, officials said.

LPS has become a dominant player in the mortgage servicing market since it spun off from Fidelity National Information Services in July, 2008. LPS serviced about 70 percent of the non-performing loan market and 40 percent of foreclosed loans nationwide as of Dec. 31, according to LPS’ latest “mortgage monitor” report.

LPS increased revenue to nearly $2.4 billion in 2009 and recently announcing it will add 350 jobs through 2011. The Jacksonville Economic Development Commission has recommended nearly $3 million in city and state incentives for LPS to add those jobs in Jacksonville.

More to come…

Sample of their work “in-house” Minnesota…not only Alpharetta, GA

[youtube=http://www.youtube.com/watch?v=3tL8mNL4bYw]


© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in concealment, conspiracy, corruption, DOCX, FIS, foreclosure fraud, foreclosure mills, Former Fidelity National Information Services, Lender Processing Services Inc., LPS, robo signer, robo signers, scamComments (1)

Full Deposition of Krystal Hall – Security Connections Inc. 400 Assignments a Day

Full Deposition of Krystal Hall – Security Connections Inc. 400 Assignments a Day


Source: 4ClosureFraud

Full Deposition of Krystal Hall – Security Connections Inc

[ipaper docId=29177122 access_key=key-fwbfujgaz6wn1qkdq55 height=600 width=600 /]

© 2010-15 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in robo signer, robo signersComments (0)

Neil Garfield- Steps to Securitization

Neil Garfield- Steps to Securitization


Mr. Garfield is a GENIUS
CameronBaxterFilms09
March 26, 2010
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
[youtube=http://www.youtube.com/watch?v=d_02YPLYzMs]
Wells Fargo’s Attorney- “We are the HOLDER of THE NOTE!
Later the attorney stated “Excuse me, I MISSTATED…We are ONLY the SERVICER”
Mr. Garfield “At which point I gave the lawyer an elbow, and I said “That means WE DON’T HAVE A HOLDER OF THE NOTE in this court room.” 

Posted in livinglies, neil garfieldComments (0)

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