notice of default - FORECLOSURE FRAUD

Tag Archive | "notice of default"

Robosigning focuses attention on title companies

Robosigning focuses attention on title companies


TIC-TOC…

SFGATE-

Chain of title – proof of who really owns a house – underpins the entire U.S. system of real estate.

Broken chain of title due to slipshod paperwork was a serious issue uncovered in the nationwide robosigning scandal and again last month in a city report that found San Francisco foreclosure paperwork riddled with errors.

Those revelations draw new attention to title companies, which insure a home’s clear title for both buyers and lenders.

“If there is not a clear chain of title in the foreclosure process, how can there be a clear chain of title for the person buying foreclosed property?” said San Francisco Assessor-Recorder Phil Ting, who commissioned the audit. “Given our report, it calls into question whether entities selling a foreclosure really have the right to transfer that property to somebody else.”

Read more: [SFGATE]

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Adam Levitin: Pushback on the San Francisco City Assessor-Recorder Foreclosure Audit

Adam Levitin: Pushback on the San Francisco City Assessor-Recorder Foreclosure Audit


Credit Slips-

Not surprisingly, there’s been some attempts to downplay the significance of the SF City Assessor-Recorder foreclosure audit. The attacks have come in three flavors:  questions about the auditors’ own background; questions about the accuracy of the report; and the “who cares, as these are just lousy deadbeats” argument. Even if we acknowledge that there is something to each of these attacks, they don’t take away from the core finding of the report, which is that things are FUBAR in mortgage documentation, and that is going to inevitably result in some honest, but unfortunate homeowners being harmed.

The first attack is on the credentials and former activities of the auditors. Given the deeply compromised background of the OCC foreclosure review auditors, this is a chutzpadik attack. The sad truth is that there isn’t a huge pool of people who can do this sort of audit. (Yes, takes it takes a thief and all that…) 

[CREDIT SLIPS]

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[VIDEO] SF Assessor-Recorder Phil Ting Uncovers Widespread (FRAUD) Mortgage Industry Irregularity

[VIDEO] SF Assessor-Recorder Phil Ting Uncovers Widespread (FRAUD) Mortgage Industry Irregularity


This is an explosive video and the AG’s better listen carefully because titles are in serious jeopardy. Forget the settlement… HOW do they prepare to correct the DEFECTS in YOUR TITLE?

Watch the video and listen to how the “New Lender” is stealing assigning Your Home to themselves… I hope AG Kamala Harris follows up and why haven’t the AG’s conducted these investigations? Truly sad.

58% of conflicts with MERS.

by on Feb 15, 2012

Assessor-Recorder Phil Ting Uncovers Widespread Mortgage Industry Irregularity in San Francisco Foreclosures

 

[Click on Image Below]

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Pelosi, Speier Request Justice Department Examination into Possible Violations of Federal Law in San Francisco Foreclosures

Pelosi, Speier Request Justice Department Examination into Possible Violations of Federal Law in San Francisco Foreclosures


Washington, D.C. – Democratic Leader Nancy Pelosi and Congresswoman Jackie Speier sent a letter today to Attorney General Eric Holder requesting he direct the Justice Department’s Financial Fraud Enforcement Task Force to examine whether any violations of Federal law occurred in the processing of foreclosures in San Francisco. 

The County of San Francisco’s Office of the Assessor-Recorder recently commissioned a report assessing compliance with applicable foreclosure laws by certain entities in the mortgage industry operating in San Francisco.

Below is the full text of the letter. 

February 17, 2012

The Honorable Eric H. Holder, Jr.
Attorney General
Robert F. Kennedy Department of Justice Building
950 Pennsylvania Ave., NW
Washington, DC 20530

Dear Attorney General Holder:

We are writing to request that you direct the Justice Department’s Financial Fraud Enforcement Task Force to examine whether any violations of Federal law occurred in the processing of foreclosures in San Francisco.

The County of San Francisco’s Office of the Assessor-Recorder recently commissioned a report, which is enclosed, assessing compliance with applicable foreclosure laws by certain entities in the mortgage industry operating in San Francisco. The report, based on a review of a random sample of mortgage loans that entered into foreclosure between January 2009 and October 2011, found that 99 percent of the San Francisco mortgages reviewed showed irregularities in the foreclosure process, and 84 percent showed potential violations of California non-judicial foreclosure laws.  In addition, foreclosures involving mortgages that were part of the Mortgage Electronic Registration System (MERS), which are more likely to have been securitized, showed a high rate of conflicting information regarding the actual beneficiary, which raises questions about whether homeowners were denied their due process rights.  We find these findings very troubling. 

Because the report does not specify the mortgage servicers involved, it is not possible to determine whether affected borrowers can seek remedies under provisions in the multi-state mortgage settlement. However, even if some borrowers can seek redress through the settlement process, or through private rights of action, the irregularities and violations cited in the report convince us that further investigation at the Federal level is warranted to determine whether any violations of Federal civil and criminal laws might have occurred.

The Assessor-Recorder has already referred the report’s findings to California Attorney General, Kamala Harris, for her review.  We believe the severity of the report’s conclusions also warrant a thorough review at the Federal level by the Task Force. 

We appreciate the hard work of the Obama Administration and the state Attorneys General, including the helpful protections for borrowers secured by California Attorney General Kamala Harris, in achieving a multi-state mortgage settlement. We are hopeful that preserving the ability of the states and the Federal government to continue to pursue actions not covered by the terms of the settlement will ensure that homeowners who experienced losses unfairly, particularly where abusive practices were the cause, will be able to seek a remedy.

Thank you for your attention to this matter.

best regards,

Nancy Pelosi
Democratic Leader

Jackie Speier
Member of Congress

Cc:           The Honorable Kamala Harris, Attorney General, State of California
                The Honorable Edwin M. Lee, Mayor, San Francisco, California
                The Honorable Phil Ting, Assessor-Recorder, City & County of San Francisco

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Adam Levitin: Why No Investigation?

Adam Levitin: Why No Investigation?


The robosigning itself and similar lack of internal controls are the small potatoes. There are much more serious things in the SF City Assessor report.


Credit Slips-

Here’s a bombshell: the San Francisco City Assessor commissioned a serious audit of foreclosure documentation filed in the past few years. The audit examined 400 foreclosures.  It found problems with 85% of them, often multiple problems. What’s more, some of the problems are pretty serious as they implicate not only borrowers’ rights, but the integrity of mortgage-backed securities and the property title system.  

The San Francisco City Assessor’s audit also serves as a benchmark for evaluating the Federal-State servicing settlement.  The San Francisco City Assessor managed to accomplish in a few months what the Federal government and state Attorneys General weren’t able to do in nearly a year and a half with far greater resources at their disposal:  perform a credible investigation of foreclosure documentation with serious implications about the securitization process in general.  That’s a lot of egg on the face of Shaun Donovan, Eric Holder, Tom Miller, et al.  The SF City Assessor report shows that it really wasn’t so hard for a motivated party to undertake a serious investigation. And that raises the question of why the largest consumer fraud settlement in history proceeded with virtually no investigation. 

The lack of investigation was the compelling criticism that led the NY and DE AGs to stay out of the settlement for quite a while. I’ve never heard an answer as to why no serious investigation. As the SF City Assessor’s audit shows, the documentation is all a matter of public record.  It’s not that hard to do, especially if you have the resources of the federal government.  So the resources were there. The capability was there. So why no investigation?  The answer has to lie with lack of motivation. Were the Feds and AGs scared of what they would find if they delved too deeply into the issue? 

I hope that members of Congress will question the Attorney General and HUD Secretary the next time they show up to testify on the Hill.  The issue is also worthy of a GAO or IG examination. 

[…]

[CREDIT SLIPS]

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Foreclosure Fraud, Abuse Rampant Across U.S., experts say

Foreclosure Fraud, Abuse Rampant Across U.S., experts say


* Report found 84 pct of San Francisco disclosures illegal

* High levels found across the country, experts say

REUTERS-

A report this week showing rampant foreclosure abuse in San Francisco reflects similar levels of lender fraud and faulty documentation across the United States, say experts and officials who have done studies in other parts of the country.

The audit of almost 400 foreclosures in San Francisco found that 84 percent of them appeared to be illegal, according to the study released by the California city on Wednesday.

“The audit in San Francisco is the most detailed and comprehensive that has been done – but it’s likely those numbers are comparable nationally,” Diane Thompson, an attorney at the National Consumer Law Center, told Reuters.

Across the country from California, Jeff Thingpen, register of deeds in Guildford County, North Carolina, examined 6,100 mortgage documents last year, from loan notes to foreclosure paperwork.

[REUTERS]

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AEQUITAS REPORT: FORECLOSURE IN CALIFORNIA A CRISIS OF COMPLIANCE

AEQUITAS REPORT: FORECLOSURE IN CALIFORNIA A CRISIS OF COMPLIANCE


1. Introduction

The City and County of San Francisco’s Office of the Assessor-Recorder retained Aequitas Compliance Solutions, Inc. to review 382 residential mortgage loan transactions (the “subject loans”) that resulted in foreclosure sales that occurred from January 2009 through October 2011.1 Over this period, there were 2,405 foreclosure sales. The subject loans thus represent approximately 16% of the total. (See Appendix B – Methodology.)

We analyzed the subject loans to determine the mortgage industry’s compliance with applicable laws. Specifically, we focused our analysis on important topics relating to six Subject Areas:

Assignments
Notice of Default
Substitution of Trustee
Notice of Trustee Sale
Suspicious Activities Indicative of
Potential Fraud
Conflicts Relating to MERS

[ipaper docId=81783176 access_key=key-23u7jv139fdxzsk3ytub height=600 width=600 /]

 

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MASSIVE: California Audit Finds Broad Irregularities in Foreclosures

MASSIVE: California Audit Finds Broad Irregularities in Foreclosures


“Almost all involved either legal violations or suspicious documentation”

Gretchen Morgenson-

An audit by San Francisco county officials of about 400 recent foreclosures there determined that almost all involved either legal violations or suspicious documentation, according to a report released Wednesday.

Commissioned by Phil Ting, the San Francisco assessor-recorder, the report examined files of properties subject to foreclosure sales in the county from January 2009 to November 2011. About 84 percent of the files contained what appear to be clear violations of law, it said, and fully two-thirds had at least four violations or irregularities.

The report comes just days after the $26 billion settlement over foreclosure improprieties between five major banks and 49 state attorneys general, including California’s. Among other things, that settlement requires participating banks to reduce mortgage amounts outstanding on a wide array of loans and provide $1.5 billion in reparations for borrowers who were improperly removed from their homes.

[NEW YORK TIMES]

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Bryson v. BRANCH BANKING AND TRUST COMPANY – FL 2DCA Reversal “The unauthenticated copies of default letters purportedly sent by BB&T were insufficient for summary judgment”

Bryson v. BRANCH BANKING AND TRUST COMPANY – FL 2DCA Reversal “The unauthenticated copies of default letters purportedly sent by BB&T were insufficient for summary judgment”


JAMES D. BRYSON, Appellant,
v.
BRANCH BANKING AND TRUST COMPANY, Appellee.

 Case No. 2D10-3360.

District Court of Appeal of Florida, Second District.
Opinion filed November 30, 2011.
.
Michael E. Rodriguez of Foreclosure Defense Law Firm, PL, Tampa, for Appellant.Miguel A. Gonzalez of Spear and Hoffman, P.A., Miami, for Appellee.VILLANTI, Judge.James D. Bryson appeals the final summary judgment of foreclosure entered in favor of Branch Banking and Trust Company (BB&T). Because BB&T did not meet its burden of conclusively showing that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law, we reverse the summary judgment and remand for further proceedings.

BB&T filed a complaint on July 16, 2008, seeking foreclosure, alleging that Bryson had not made any payments on his mortgage since February 1, 2008. Thereafter, BB&T filed a motion for summary judgment. Bryson answered the complaint and admitted that he had executed the mortgage in question and that he had missed at least one payment. However, he asserted as an affirmative defense that BB&T had not provided a notice to cure as required by section 22 of the mortgage. Paragraph 22 of the mortgage, which was attached to the complaint, required BB&T to give notice to Bryson prior to accelerating the debt:

Acceleration, Remedies[.] Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise)[.] The notice shall specify (a) the default, (b) the action required to cure the default, (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured, and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non existence of a default or any other defense of Borrower to acceleration and foreclosure[.] If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Agreement by judicial proceeding[.] Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys’ fees and costs of title evidence[.]

On April 27, 2009, BB&T filed a copy of two default letters purportedly sent to Bryson on April 28, 2008, at two different addresses. However, the letters were not attached to an affidavit or authenticated in any way. BB&T then filed a revised summary judgment motion.

At a hearing held on the summary judgment motion, Bryson argued that BB&T had not refuted the affirmative defenses related to paragraph 22 of the mortgage and that the two default notice letters were not authenticated and could not be considered for summary judgment purposes. BB&T responded that the letters were “self-authenticating” because they were created by the bank. The court granted summary judgment. This appeal followed.

“A movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). The party moving for summary judgment bears the burden of establishing irrefutably that the nonmoving party cannot prevail. See Hervey v. Alfonso, 650 So. 2d 644, 645-46 (Fla. 2d DCA 1995). “[I]t is only after the moving party has met this heavy burden that the nonmoving party is called upon to show the existence of genuine issues of material fact.” Id. at 646; see also Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966) (“Until it is determined that the movant has successfully met this burden, the opposing party is under no obligation to show that issues do remain to be tried.”); Deutsch v. Global Fin. Servs., LLC, 976 So. 2d 680, 682 (Fla. 2d DCA 2008) (“The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.”); Berenson v. S. Baptist Hosp. of Fla., Inc., 646 So. 2d 809, 810 (Fla. 1st DCA 1994) (noting that “the nonmoving party need make no showing in support of his claim until the moving party has, by affidavit or otherwise, completely negated all allegations and inferences raised by the nonmoving party”).

On summary judgment, the trial court’s function “is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, `the nonexistence of a genuine issue of a material fact.'” Winston Park, Ltd. v. City of Coconut Creek, 872 So. 2d 415, 418 (Fla. 4th DCA 2004) (quoting Besco USA Int’l Corp. v. Home Sav. of Am. FSB, 675 So. 2d 687, 688 (Fla. 5th DCA 1996)). Where a defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009); Newton v. Overseas Private Inv. Corp., 544 So. 2d 224, 225 (Fla. 3d DCA 1989).

In numerous foreclosure cases summary judgment has been reversed because the defendant has pleaded lack of notice and opportunity to cure as an affirmative defense and nothing in the bank’s complaint, motion for summary judgment, or affidavits established that the bank gave the homeowners the notice and opportunity to cure required by the mortgage. See, e.g., Laurencio v. Deutsche Bank Nat’l Trust Co., 65 So. 3d 1190, 1192 (Fla. 2d DCA 2011); Konsulian v. Busey Bank, N.A., 61 So. 3d 1283, 1285 (Fla. 2d DCA 2011) (“[N]othing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsulian the notice which the mortgage required. . . . Further, Busey did not refute Konsulian’s defenses nor did it establish that [they] were legally insufficient.”); Frost, 15 So. 3d at 906. We reach the same conclusion in this case.

The unauthenticated copies of default letters purportedly sent to Bryson by BB&T were insufficient for summary judgment purposes because only competent evidence may be considered in ruling on a motion for summary judgment. Daeda v. Blue Cross & Blue Shield of Fla., Inc., 698 So. 2d 617, 618 (Fla. 2d DCA 1997); Tunnell v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (explaining that court could not consider certain documents in its summary judgment decision because “Tunnell failed to attach either document to affidavits that presumably would have ensured their admissibility”).

At the summary judgment hearing, BB&T took the position that the letters were self-authenticating because they were the bank’s own letters. Self-authentication is a concept that, due to a document’s very nature of being notarized or certified in some fashion, eliminates hearsay and other extrinsic objections to admissibility. However, a document bereft of genuineness, such as a purported copy, cannot be said to be self-authenticating because extrinsic evidence to establish its truthfulness is still required. With this in mind, BB&T’s letters are clearly not self-authenticated. Hence, we reject BB&T’s argument in this regard. See, e.g., Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So. 2d 707, 709 (Fla. 4th DCA 1997) (“Merely attaching documents which are not `sworn to or certified’ to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Fla. R. Civ. P. 1.510(e).”); Morrison v. U.S. Bank, N.A., 66 So. 3d 387, 387 (Fla. 5th DCA 2011) (reversing summary judgment of foreclosure where defendant asserted she had not received a notice of default as required by the mortgage and the bank had simply filed an unauthenticated notice letter). In this case, the letters at issue were not admitted by the pleadings, nor were they accompanied by an affidavit of a record custodian or other proper person attesting to their authenticity or correctness. See id.

Finally, BB&T argues that it was entitled to summary judgment because “Bryson did not file any affidavits in opposition or tender sufficient evidence to demonstrate to the court that a genuine issue of material fact existed.” BB&T has misunderstood the summary judgment standard. If the defendant pleads affirmative defenses, the plaintiff moving for summary judgment must either factually refute the affirmative defenses by affidavit or establish their legal insufficiency. Frost, 15 So. 3d at 906; Newton, 544 So. 2d at 225. “The burden of proving the existence of genuine issues of material fact does not shift to the opposing party until the moving party has met its burden of proof.” Deutsch, 976 So. 2d at 682. Because BB&T did not tender any competent evidence on the issue of Bryson’s notice of the default, it did not meet its burden of proof on summary judgment.

Reversed and remanded.

ALTENBERND and KHOUZAM, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

[ipaper docId=74853116 access_key=key-16p6zod69a0l71iv1vrg height=600 width=600 /]

 

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MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment “Notice of Default as Required by Language of Mortgage”

MORRISON v. U.S. BANK | FL 5DCA REVERSES Final Summary Judgment “Notice of Default as Required by Language of Mortgage”


IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

JULY TERM 2011

DIANNE MORRISON AND
MICHAEL HERBERT,
Appellants,

v.

US BANK, N.A., AS TRUSTEE
FOR CSAB, ETC.,
Appellee.

Case No. 5D10-556

________________________________/
Opinion filed July 29, 2011

Appeal from the Circuit Court
for Seminole County,

Alan A. Dickey, Judge.

Michael E. Rodriguez of Foreclosure
Defense Law Firm, PL, Tampa,
for Appellants.

Andrew D. Manko of Carlton Fields, P.A.,
Tallahassee, Michael K. Winston and
Dean A. Morande of Carlton Fields, P.A.,
West Palm Beach, for Appellee.

PER CURIAM.

Appellants challenge the final summary judgment in foreclosure entered in favor of Appellee. Appellants’ sole argument on appeal is that a disputed issue of material fact exists as to whether Appellee provided notice of default, as required by the language in the mortgage. Appellants denied that the notice had been provided, specifically quoting the language of the mortgage that pertained to the notice. Although Appellee attached a copy of the notice to its motion, the notice was not authenticated by affidavit or otherwise. The trial court overruled Appellants’ objection to the unauthenticated document. Appellee concedes that this was error, but nevertheless, contends that Appellants failed to raise the lack of notice in their pleading with the requisite specificity. We disagree and accordingly reverse and remand this cause for further proceedings.

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

[ipaper docId=61414747 access_key=key-2ek2iszlj95821iesr8b height=600 width=600 /]

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WRAY | Requiem for MERS (and the Banks That Created the Frankenstein Monster)

WRAY | Requiem for MERS (and the Banks That Created the Frankenstein Monster)


L. Randall Wray

Professor of Economics and Research Director of the Center for Full Employment and Price Stability, University of Missouri–Kansas City
Posted: January 24, 2011 09:01 AM

It is now widely recognized that MERS facilitated fraud by lenders, servicers, foreclosers and securitizers. Even on the most charitable interpretation it is very difficult to believe that MERS was not fraudulent by design. So much of the story has already been told that we do not need to rehash all of it here. Let me first concisely summarize the two main problems, and then move on to the most recent developments that put the final nails in MERS’s coffin. I’ll conclude with my argument that there really was some “not so intelligent” design behind all of this. But it is coming back to bite the hand that feeds. The big banks will not survive the monster they created.

Whenever those who are critical of MERS and the banksters post blogs about the multiple frauds, we are attacked by commentators — presumably industry hacks — who try to obfuscate the issues. But recent court cases as well as testimonies before elected representatives confirm our two main claims. First, many or most foreclosures that are taking place are illegal because those doing the foreclosing do not have legal standing. And, second, the practices that created the foreclosure problems also mean that the mortgage backed securities are actually unsecured debt. That means banks must take them back, so they are toast. It all comes back to MERS’s business model: it destroyed the chain of title.

Much of the rest of the fraud and scandal we are witnessing follows on from that because the banks want to foreclose the properties before the securities holders put back the fraudulent securities. The problem is that the destruction of the clear chain of title makes it impossible to foreclose, so the banks used robo-signers to forge documents in the hope they could paper over their home thefts. But homeowners, courts, legislators, securities investors, and title insurers have caught on to the scam. In addition to the forgeries, MERS and bank officials and lawyers are committing perjury in court in the hope that they can confuse the issues sufficiently that they can complete the home thefts.

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