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Tag Archive | "Real Estate"

Ingham County, MI to begin collecting taxes from mortgage giants Freddie Mac, Fannie Mae

Ingham County, MI to begin collecting taxes from mortgage giants Freddie Mac, Fannie Mae


M Live-

Ingham County officials expect to see tens of thousands of dollars in new revenue as they begin collecting taxes from two of the nation’s largest mortgage lenders.

Ingham County Register of Deeds Cutris Hertel Jr. said he will begin requiring Fannie Mae and Freddie Mac to pay full transfer taxes on all property transfers in which they are the seller.

The two companies had claimed to be exempt from paying taxes upon filing new deeds, saying they were government entities.

But a recent court ruling found the lenders were private entities, Hertel said.

“We’ve been telling them along the way they need to pay on these, but we haven’t had the legal backing until the Oakland County case was decided,” Hertel said.

[M LIVE]

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Genesee County, MI could net $500,000 from lawsuit decision against Fannie Mae, Freddie Mac

Genesee County, MI could net $500,000 from lawsuit decision against Fannie Mae, Freddie Mac


First posted on SFF last week, Michigan’s Oakland County Victory against the DC Twins.

M-Live-

The county could be in line for a half-million-dollar payout from mortgage giants Fannie Mae and Freddie Mac if a U.S. District Court decision Friday stands up to a likely appeal.

County Treasurer Deb Cherry said today that Friday’s decision by Judge Victoria A. Roberts could provide an unexpected revenue boost to the county and immediately urged that the payout be used to help fix problems that have been created by mortgage and tax foreclosures.

[M LIVE]

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READ OAKLAND COUNTY, MI WINNING ORDER AGAINST FANNIE MAE & FREDDIE MAC

READ OAKLAND COUNTY, MI WINNING ORDER AGAINST FANNIE MAE & FREDDIE MAC


H/T DAN MARSH

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

OAKLAND COUNTY, ET AL.,
Plaintiffs,

vs

FEDERAL HOUSING FINANCE AGENCY
AS CONSERVATOR FOR FEDERAL
NATIONAL MORTGAGE ASSOCIATION AND
FEDERAL HOME LOAN MORTGAGE COMPANY;
FEDERAL NATIONAL MORTGAGE ASSOCIATION;
AND FEDERAL HOME LOAN MORTGAGE COMPANY,
Defendants.
________________________________/

ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

EXCERPT:

IV. CONCLUSION

In the end, this case turns on a single question: whether a statutory exemption
from “all taxation” includes excise taxes such as the Michigan Transfer Taxes. Wells
Fargo dictates that it does not. Accordingly, the Enterprises are liable for the Transfer
Taxes.

Plaintiffs’ and State Plaintiff’s motion for summary judgment is GRANTED.
Defendants’ motion is DENIED. The issue of damages remains.

IT IS ORDERED.

S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: March 23, 2012

[ipaper docId=86577394 access_key=key-m54490sgiuahsuqfggv height=600 width=600 /]

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Oakland County, MI wins lawsuit against Fannie Mae and Freddie Mac

Oakland County, MI wins lawsuit against Fannie Mae and Freddie Mac


Just breaking and will report when the ruling is released…

The lawsuit, filed in U.S. District Court for the Eastern District of Michigan on 6/20/2011, alleged that Fannie Mae and Freddie Mac failed to pay the real estate transfer tax.

Oakland County Treasurer Andy Meisner stated in twitterverse “Just got word Oakland County has won our lawsuit against Fannie Mae and Freddie Mac, one step in fighting to make our taxpayers whole!”

Hopefully, the similar lawsuit filed by Ingham County Register of Deeds Curtis Hertel, Jr. against mortgage lenders for unpaid taxes scores a win too!

[ipaper docId=86577394 access_key=key-m54490sgiuahsuqfggv height=600 width=600 /]

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Foreclosure Lawyer Could Lose Her Home Because Of Alleged Bank Error

Foreclosure Lawyer Could Lose Her Home Because Of Alleged Bank Error


You know it’s going to end badly when these joker of banks screw with the wrong person!

HuffPO-

Christine Jackson’s three-bedroom wood-frame home in Indianapolis is in danger of foreclosure. It’s not because she can’t afford her mortgage, but because of a bank error, she said.

Jackson is one among thousands of homeowners from all walks of life who have complained that the major banks that service their mortgages have made frequent errors in calculating their loans. These errors include slapping unnecessary inspection fees onto accounts, misapplying payments in violation of Fannie Mae and Freddie Mac guidelines and “force-placing” expensive insurance onto homes that are already insured.

Jackson knows all this all too well because she is a lawyer who represents homeowners trying to stave off foreclosure. Often, those clients have claimed that their bank or mortgage servicer made a mistake in tabulating the cost of their loan, triggering a wrongful default. Jackson, 54, a former fraud investigator for the Internal Revenue Service, now understands firsthand the frustration that her clients face.

[HUFFINGTONPOST]

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Defense denies standing in Foreclosure Fraud case

Defense denies standing in Foreclosure Fraud case


Think about this when you read this article:

1. Did the borrower have a choice or was he/she coerced into accepting MERS, who they really had no idea of what or who it was?

2. Was it ever disclosed that many of the lenders are shareholders of MERS, also who may own the first or second position… this includes Fannie Mae who is a shareholder?

3. Since Fannie (GSE) is owned by “taxpayers” why is she acting 100% private – 100% of the time?

4. One may have been coerced into having MERS in their documents but one would never accept forgery or robo-signing because everyone knows this would be fraud and therefore void the transaction…like a check.

5. Exactly why did Fannie fire FL law firms and exactly how long did Fannie know of robo-signing?

Michigan Messenger-

With mounting evidence of robo-signing and other alleged fraud perpetrated by banks, foreclosure law firms and others, Fannie Mae and Flagstar Bank have filed a new defense of such actions in Ingham County Circuit Court — and Ingham County Register of Deeds Curtis Hertel, Jr. is crying foul.

“What they are basically saying is they can forge an assignment and there is nothing the citizen or court can do about it. It is a brazen attempt to legalize robosigning,” says Hertel. “It’s just another example of Fannie Mae thumbing its nose at the American people, and unfortunately while they are under federal bailout we are paying for it.”

This is happening in the case of a Haslett man who suffered a stroke and fell behind on his mortgage payments. As a result, Flagstar Bank and Fannie Mae foreclosed on him and are now in the final stages of evicting him from his Haslett home, says Hertel.

[MICHIGAN MESSENGER]

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Court rulings complicate evictions for lenders in Oregon

Court rulings complicate evictions for lenders in Oregon


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

 

OregonLive-

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

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

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

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

[OREGON LIVE]

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

 

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Handy X-notes allow banks to keep profiting while real estate bonds they sold to investors tank

Handy X-notes allow banks to keep profiting while real estate bonds they sold to investors tank


H/T Pedro da Costa

As always the same players, never fails.

Reuters-

Europe’s muted commercial property debt securitisation market will not return to a multi-billion pounds business until a row is settled over controversial X-Notes, a bond used by issuing banks to protect their slice of profits.

“X-Notes are one of the biggest issues facing European CMBS, because (when the underlying loans fail) investors see the bank that issued the transaction still making a fortune, they’re actually quite hacked off,” one source told Reuters.

[REUTERS]

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INGHAM COUNTY COMPLAINT | HERTEL v. BANK OF AMERICA “Inappropriately Claim ‘R.E. Transfer Taxes’ Exemptions”

INGHAM COUNTY COMPLAINT | HERTEL v. BANK OF AMERICA “Inappropriately Claim ‘R.E. Transfer Taxes’ Exemptions”


STATE OF MICHIGAN
30th CIRCUIT COURT FOR THE COUNTY OF INGHAM

CURTIS HERTEL, JR. individually and as
Register of Feeds for Ingham County,

V

BANK OF AMERICA N.A.;
BAC HOME LOANS SERVICING, LP;
WELLS FARGO BANK, N.A.;
COUNTRYWIDE HOME LOANS SERVICING, LP;
ORLAN ASSOCIATES, PC;
TROTT & TROTT, PC;
FEDERAL NATIONAL MORTGAGE ASSOCIATION
d/b/a FANNIE MAE;
FEDERAL HOME LOAN MORTGAGE CORPORATION
d/b/a FREDDIE MAC

[ipaper docId=58558531 access_key=key-2j0q93d6b73tux1i0v1v height=600 width=600 /]

[scribd id=58558531 key=key-2j0q93d6b73tux1i0v1v mode=list]

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Ingham County Register of Deeds Curtis Hertel, Jr. Files Lawsuit Against Mortgage Lenders For Unpaid Taxes

Ingham County Register of Deeds Curtis Hertel, Jr. Files Lawsuit Against Mortgage Lenders For Unpaid Taxes


FOR IMMEDIATE RELEASE:

CONTACT: Curtis Hertel Jr. Ingham County Register of Deeds Ph 517 281 3574

Ingham County Register of Deeds Curtis Hertel, Jr. Files Lawsuit Against Mortgage Lenders For Unpaid Taxes

Ingham County Register of Deeds Curtis Hertel Jr. has filed a lawsuit today in the 30th Circuit Court, to recover millions in alleged unpaid transfer taxes from mortgage servicers and their attorneys.

“This is money that should have been applied to the county’s general funds, which could have been used for public safety, health programs, or countless other public services,” said Hertel. “Additionally, the state taxes collected would have gone straight to the school aid fund. It’s time for some of the banks responsible for the foreclosure mess to pay their fair share, instead of allowing our county’s taxpayers to bear all of the burden.”

Transfer taxes are the monies paid when a new deed is recorded in the county’s Register of Deeds office. The taxes apply to the sale price of the property being transferred, unless it falls under $100. Many large-scale banks have used Fannie Mae and Freddie Mac to claim an exemption to the taxes by identifying themselves as government entities, which Hertel contests.

”Depending on the amount of the judgment, this could provide a needed boost to our county’s constrained budget,” said Ingham County Treasurer Eric Schertzing. “The foreclosure crisis has drained county tax dollars in many ways – not merely in uncollected property taxes, but also because Fannie Mae and Freddie Mac were claiming these federal exemptions while re-selling foreclosed homes.”

The official transfer tax rate for counties in Michigan is $1.10 for every $1,000 of value being transferred. So the sale of a $100,000 home would typically carry a $110.00 tax. State taxes on the same transactions stretch even further – $7.50 for every $1,000 of value being transferred. It is estimated that the lawsuit could fetch a judgment in the millions of dollars.

“MFI-Miami, an internationally recognized mortgage fraud investigation firm based in Florida, has been instrumental in assisting in our investigation of this,” said Hertel. William Maxwell, Dan Marsh and Brian Parker from the Home Defense League, PLC, working in conjunction with MFI-Miami discovered a pattern of unpaid transfer taxes on foreclosure sales across Michigan. “The fact is banks and mortgage servicers, in concert with their foreclosure firms, failed to pay state and county transfer taxes,” said Steve Dibert of MFI-Miami, who has been part of the document examination.

Hertel is also working with other members of the Michigan Association of Registers of Deeds. “We are cooperating with other municipalities to join us in this fight, because this not just an Ingham County problem, it a problem that affects all 83 counties in the state.”

“Currently, the Michigan Association of Registers of Deeds, Inc. is compiling data from documents representing taxable transfers from these and other entities to determine the potential amount owed Michigan counties,” said president Bambi Somerlott. “Accordingly, each county will, in its discretion, use the information and proceed as they deem appropriate.”

Hertel has received the support of the Ingham County Board of Commissioners, and will announce the lawsuit at a press conference at 1:00 pm today. He has chosen the site of 1117 S Grand Avenue, a home that was recently subject to tax foreclosure, to make the announcement. “The banks should bear their share of responsibility for our current housing climate, and their role in what has happened is becoming more clear as time passes,” said Hertel. “We will do everything we can to pursue financial justice.”

source: Ingham.org

Hertel v. Bank of America N.A., 11-687-CZ

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PRESS RELEASE | Oakland County, MI sues Fannie Mae and Freddie Mac

PRESS RELEASE | Oakland County, MI sues Fannie Mae and Freddie Mac


Press Release

Oakland County sues Fannie Mae and Freddie Mac


Public Date: 06/20/2011
Contact: Bill Mullan, Media and Communications Officer
Phone Number: 248-858-1048

Pontiac, MI. — Oakland County Treasurer Andy Meisner and the Oakland County Corporation Counsel will hold a news conference Thursday to announce the filing of a lawsuit against Fannie Mae and Freddie Mac that alleges the two lenders have failed to pay the county a real estate transfer tax for the privilege of recording various documents with the County Register of Deeds. The news conference will be held at 1:00 p.m. Thursday, June 23, 2011 at the Oakland County Treasurer’s Office, 1200 North Telegraph, Pontiac.

The lawsuit, filed in U.S. District Court for the Eastern District of Michigan on Monday, has the potential to recover more than $1 million for Oakland County based on the number of times Fannie Mae and Freddie Mac failed to pay the real estate transfer tax.

The Oakland County Corporation Counsel discovered Fannie Mae and Freddie Mac’s failure to pay after reading an article titled “Bypassing county fees may cost banks” in the December 2, 2010 edition of the Oakland County Legal News. The Corporation Counsel – along with outside counsel Kenneth Robinson and William Horton – began to take a look at real estate transfer taxes on various documents filed with the Oakland County Register of Deeds. In the course of examining those documents, the Corporation Counsel discovered Fannie Mae and Freddie Mac’s failure to pay.

Further details will be outlined at the news conference.

For media inquiries only, please contact Bill Mullan, Media and Communications Officer, at (248) 858-1048.

source: http://www.oakgov.com

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Foreclosure Mill Sets Off Yet More Florida Counties Into a Nightmare

Foreclosure Mill Sets Off Yet More Florida Counties Into a Nightmare


from the NapleNews:

“It’s really going to bring the courts to its knees,” Allen said. “The court is going to have to find some creative ways to dispose of these cases.”

In Collier County alone, Stern’s firm had more than 1,700 active cases. In Lee County, there are more than 4,500.

“Lee’s a nightmare, especially when you throw the ‘rocket docket’ in there,” Allen s

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

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


Via:

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

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OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI

OHIO JUDGMENT REVERSED FULL Payoff Rejected, Broken Entry (2), FDIC, as Receiver of WAMU v. TRAVERSARI


Don’t you just love it when links and posts go missing for absolutely NO reason whatsoever!

REPOST-

Fed. Deposit Ins. Corp., as Receiver of WAMU v. TRAVERSARI, 2010 Ohio 2406 – Ohio: Court of Appeals, 11th Dist., Geauga 2010
dinsfla | June 5, 2010 at 9:49 am |

2010-Ohio-2406

Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank, Plaintiff-Appellee,
v.
Robert Traversari, et al., Defendants-Appellants.
No. 2008-G-2859.

Court of Appeals of Ohio, Eleventh District, Geauga County.

May 28, 2010.

Karen L. Giffen and Kathleen A. Nitschke, Giffen & Kaminski, L.L.C., 1300 East Ninth Street, #1600, Cleveland, OH 44114 and Donald Swartz, Lerner, Sampson & Rothfuss, P.O. Box 580, Cincinnati, OH 45210-5480 (For Plaintiff-Appellee).

Edward T. Brice, Newman & Brice, L.P.A., 214 East Park Street, Chardon, OH 44024 (For Defendants-Appellants).

OPINION
COLLEEN MARY O’TOOLE, J.

{¶1} Appellants, Robert Traversari (“Traversari”) and B & B Partners (“B & B”), appeal from the August 5, 2008 judgment entry of the Geauga County Court of Common Pleas, granting summary judgment in favor of appellee, Washington Mutual Bank, and entitling appellee to a judgment and decree in foreclosure.

{¶2} In 1994, appellant Traversari borrowed $190,000 from Loan America Financial Corporation which was memorialized by a promissory note and further secured by a mortgage on property located at 9050 Lake-in-the-Woods Trail, Bainbridge Township, Geauga County, Ohio. Appellant Traversari obtained the loan individually and/or in his capacity as the sole member and principal of appellant B & B, a real estate based company. The mortgage at issue was subsequently assigned to appellee.

{¶3} On January 8, 2007, appellee filed a complaint in foreclosure against appellants and defendants, JP Morgan Chase Bank, N.A., Charter One Bank, N.A., Jesse Doe, and Geauga County Treasurer. In count one of its complaint, appellee alleges that it is the holder and owner of a note in which appellant Traversari owes $149,919.96 plus interest at the rate of 7.75 percent per year from September 1, 2006, plus costs. In count two of its complaint, appellee alleges that it is the holder of a mortgage, given to secure payment of the note, which constitutes a valid first lien upon the real estate at issue. Appellee maintains that because the conditions of defeasance have been broken, it is entitled to have the mortgage foreclosed. Appellee indicated that appellant B & B may have claimed an interest in the property by virtue of being a current titleholder.

{¶4} Appellants filed an answer and counterclaim on February 16, 2007. In their defense, appellants maintain that appellee failed to comply with Civ.R. 10(D) and is estopped from asserting a foreclosure by its waiver of accepting payment. According to their counterclaim, appellants allege the following: on or about September 25, 2006, appellant Traversari sent a check in the amount of $150,889.96 to appellee for payment in full on the loan, which included the principal of $149.919.96 plus $970 of interest; on or about November 17, 2006, appellee issued a new home loan statement to appellant Traversari indicating the amount due was $5,608.95; appellant Traversari contacted appellee stating that a check had been sent for payment in full; appellee failed to respond; appellant Traversari mailed a check to appellee in the amount of $155,000; no stop payment was issued on the first check; because the house was vacant, appellant Traversari went to check the residence on December 26, 2006, and discovered that it had been broken into; an orange placard was placed on the premises indicating that a representative from appellee would secure the home; appellant Traversari immediately purchased new lock sets, secured the premises, and called and left a message for appellee to inform them to not enter the home; on December 31, 2006, electronic transmission was sent to appellee concerning the break-in and requested appellee to stop breaking into the home as well as to locate the two checks and to send a copy of a letter to a credit bureau; appellee did not respond; appellant Traversari then mailed a check from a separate account in the amount of the last payment demanded by appellee; appellee sent the $155,000 check back with a form letter to the address of the vacant property stating that personal checks were not accepted for payoff; appellee also rejected the $5,674.41 check; appellant Traversari then contacted appellee regarding the rejected checks; on January 11, 2007, appellant Traversari went to the home again, finding the kitchen door open, furnace running, new lock set taken out, garage door openers unplugged, and worse dings in the steel door; and appellant Traversari emailed appellee again, however, appellee indicated it could not give appellants any information because the case had been moved to foreclosure.

{¶5} Appellee filed a reply to appellants’ counterclaim on March 19, 2007, and an amended reply on September 6, 2007.

{¶6} According to the deposition of Maritza Torres (“Torres”), an employee of appellee in its senior asset recovery, loss prevention department, she was assigned to appellants’ case. Torres testified that appellee has no record of having received a check in the amount of $150,889.96 from appellant Traversari on September 25, 2006. However, she indicated that appellee received a check from appellant Traversari on September 30, 2006, in the amount of $102,538.74 (“Check #1?), which was returned to him due to appellee’s policy not to accept checks for early payoffs that are not certified funds.

{¶7} According to the deposition of Linda Rae Traversari (“Linda”), appellant Traversari’s wife, she is the handler of the family assets. Following the return of Check #1, appellee forwarded a delinquency letter to appellant Traversari in early November of 2006. Later that month, appellee sent a second default letter to him. Linda testified that on or around November 30, 2006, appellant Traversari sent another personal check for early payoff to appellee in the amount of $155,000 (“Check #2?). Appellee returned Check #2 with a letter explaining that noncertified funds are not accepted for early payoff. Linda stated that on January 2, 2007, appellant Traversari sent a third personal check via certified mail to appellee in the amount of $5,674.41 (“Check #3?). By the time appellee received Check #3, the loan had been referred to foreclosure. Check #3 was returned to appellant Traversari as “insufficient.”

{¶8} On March 14, 2008, appellee filed a motion for summary judgment pursuant to Civ.R. 56(b). Appellants filed a response on April 21, 2008.

{¶9} In its July 3, 2008 order, the trial court found, inter alia, that appellee was within its legal rights to reject the personal checks; appellee had the right to institute and maintain the foreclosure because appellants did not cure their default; and appellee had the right to enter the premises. Thus, the trial court indicated that appellee’s motion for summary judgment would be granted in its favor as to all issues and claims against appellants upon appellee’s presentation of an appropriate entry to be provided to the court.

{¶10} Appellee filed a “Motion For Submission Of Its Entry Granting Motion For Summary Judgment And Decree In Foreclosure” on July 11, 2008, and an amended entry on July 21, 2008. Appellants filed objections to appellee’s proposed amended entry the following day.

{¶11} Pursuant to its August 5, 2008 “Amended Entry Granting Summary Judgment And Decree In Foreclosure,” the trial court granted summary judgment in favor of appellee, entitling appellee to a judgment and decree in foreclosure. The trial court ordered, inter alia, that unless the sums found due to appellee are fully paid within 3 days from the date of the decree, the equity of redemption shall be foreclosed, the property sold, and an order of sale issued to the Sheriff directing him to appraise, advertise, and sell the property. The trial court further ordered that the proceeds of the sale follow the following order of priority: (1) to the Clerk of Courts, the costs of the action, including the fees of appraisers; (2) to the County Treasurer, the taxes and assessments, due and payable as of the date of transfer of the property after Sheriff’s Sale; (3) to appellee, the sum of $149,919.96, with interest at the rate of 7.75 percent per annum from September 1, 2006 to February 29, 2008, and 7.25 percent per annum from March 1, 2008 to present, together with advances for taxes, insurance, and costs; and (4) the balance of the sale proceeds, if any, shall be paid by the Sheriff to the Clerk of Court to await further orders. It is from that judgment that appellants filed the instant appeal, raising the following assignment of error for our review:

{¶12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANTSA-PPELLANTS IN ITS ORDER GRANTING IN PLAINTIFF-APPELLEE’S FAVOR AS TO ALL ISSUES AND CLAIMS AND AGAINST DEFENDANTS, AND ITS AMENDED ENTRY GRANTING SUMMARY JUDGMENT AND DECREE IN FORECLOSURE TO PLAINTIFF-APPELLEE AGAINST DEFENDANTS-APPELLANTS.”

{¶13} In their sole assignment of error, appellants argue that the trial court erred by granting summary judgment in favor of appellee, and entitling appellee to a judgment and decree in foreclosure.

{¶14} “This court reviews de novo a trial court’s order granting summary judgment.” Hudspath v. Cafaro Co., 11th Dist. No. 2004-A-0073, 2005-Ohio-6911, at ¶8, citing Hapgood v. Conrad, 11th Dist. No. 2000-T-0058, 2002-Ohio-3363, at ¶13. “`A reviewing court will apply the same standard a trial court is required to apply, which is to determine whether any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law.’” Id.

{¶15} “Since summary judgment denies the party his or her `day in court’ it is not to be viewed lightly as docket control or as a `little trial.’ The jurisprudence of summary judgment standards has placed burdens on both the moving and the nonmoving party. In Dresher v. Burt [(1996), 75 Ohio St.3d 280, 296,] the Supreme Court of Ohio held that the moving party seeking summary judgment bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record before the trial court that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. The evidence must be in the record or the motion cannot succeed. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case but must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) that affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party’s claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal burden outlined in the last sentence of Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial. If the nonmoving party fails to do so, summary judgment, if appropriate shall be entered against the nonmoving party based on the principles that have been firmly established in Ohio for quite some time in Mitseff v. Wheeler (1988), 38 Ohio St.3d 112 ***.” Welch v. Ziccarelli, 11th Dist. No. 2006-L-229, 2007-Ohio-4374, at ¶40.

{¶16} “The court in Dresher went on to say that paragraph three of the syllabus in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 ***, is too broad and fails to account for the burden Civ.R. 56 places upon a moving party. The court, therefore, limited paragraph three of the syllabus in Wing to bring it into conformity with Mitseff. (Emphasis added.)” Id. at ¶41.

{¶17} “The Supreme Court in Dresher went on to hold that when neither the moving nor nonmoving party provides evidentiary materials demonstrating that there are no material facts in dispute, the moving party is not entitled a judgment as a matter of law as the moving party bears the initial responsibility of informing the trial court of the basis for the motion, `and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.’ Id. at 276. (Emphasis added.)” Id. at ¶42.

{¶18} In the case at bar, the record establishes that appellant Traversari sent personal checks to appellee for payment on the loan at issue. However, appellee returned the checks with letters indicating they would not be accepted as payment because they were not certified, and foreclosure proceedings commenced.

{¶19} There is no genuine issue of material fact that appellants executed and delivered a note and mortgage to appellee. However, a genuine issue of material fact does exist with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. See Chase Home Fin., LLC v. Smith, 11th Dist. No. 2007-P-0097, 2008-Ohio-5451, at ¶19. The dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties.

{¶20} “A cause of action exists on behalf of a damaged mortgagor when, in conformity with the terms of his note, he offers to the mortgagee full payment of the balance of the principal and interest, and the mortgagee refuses to present the note and mortgage for payment and cancellation.” Cotofan v. Steiner (1959), 170 Ohio St. 163, paragraph one of the syllabus.

{¶21} Appellant Traversari did not place any conditions on the personal checks tendered to appellee. We note that “[t]he essential characteristics of a tender are an unconditional offer to perform, coupled with ability to carry out the offer and production of the subject matter of the tender.” Walton Commercial Enterprises, Inc. v. Assns. Conventions, Tradeshows, Inc. (June 11, 1992), 10th Dist. No. 91AP-1458, 1992 Ohio App. LEXIS 3081, at 5. (Emphasis sic.)

{¶22} “It is an implied condition of every contract that one party will not prevent or impede performance by the other. If he does prevent or impede performance, whether by his prior breach or other conduct, he may not then insist on performance by the affected party, and he cannot maintain an action for nonperformance if the promises are interdependent.” Fed. Natl. Mtge. Assns. v. Banks (Feb. 20, 1990), 2d Dist. No. 11667, 1990 Ohio App. LEXIS 638, at 8-9, citing 17 American Jurisprudence 2d, Contracts, Sections 425, 426.

{¶23} In the instant matter, paragraph 3 of the Open-End Mortgage provides:

{¶24} “3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third; to interest due; fourth, to principal due; and last, to any late charges due under the Note.”

{¶25} Here, there was no new note and mortgage, nor agreement for application of payments, when the mortgage at issue was subsequently assigned from Loan America Financial Corporation to appellee. Rather, it was the policy of appellee to require mortgagors to pay by certified check for any amounts over $5,000. According to appellee’s employee, Torres, she indicated that any amount over $5,000 not paid by certified funds puts the company at risk because it can take anywhere between 7 to 10 days for a personal check to clear. We note, however, that the mortgagee has up to 90 days to verify the sufficiency of the underlying funds before satisfying and releasing its recorded mortgage. R.C. 5301.36(B). In the instant case, it would have been reasonable for appellee to have either waited 7 to 10 days for appellant Traversari’s checks to clear or to have inquired with his bank, see, generally, Hunter Sav. Assn. v. Kasper (Sept. 25, 1979), 10th Dist. No. 78AP-774, 1979 Ohio App. LEXIS 11777, at 13, if there were sufficient funds before returning any of his 3 personal checks and commencing foreclosure proceedings.

{¶26} The lender in this case unilaterally refused the debtor’s payment by check due to itsinternal policy that an amount over $5,000 had to be made by certified check. The terms and conditions of the mortgage, however, do not impose such a requirement. Under paragraph 3 of the Open-End Mortgage, it appears the lender had an obligation to apply the payment tendered, by personal check or otherwise. Its refusal to present the check for clearance and apply the payment on the ground of internal policy appears to have violated the debtor’s rights.

{¶27} Construing the evidence submitted most strongly in favor of appellants, we must conclude that genuine issues of material fact remain. Again, a genuine issue of material fact exists with regard to the fact that appellant Traversari tendered the entire principal payment and appellee rejected it because the payment was made by personal check. Also, the dates and amounts of the personal checks are conflicting due to the testimony and/or evidence submitted by the parties. Thus, the trial court erred by granting appellee’s motion for summary judgment.

{¶28} For the foregoing reasons, appellants’ sole assignment of error is well-taken. The judgment of the Geauga County Court of Common Pleas is reversed and the matter is remanded for further proceedings consistent with this opinion. It is ordered that appellee is assessed costs herein taxed. The court finds there were reasonable grounds for this appeal.

Trapp, P.J., Rice, J., concur.

Defendants are not named parties to the instant appeal.

The matter was stayed. On November 26, 2008, the Federal Deposit Insurance Corporation was substituted for appellee Washington Mutual Bank. This court instructed the Clerk of Courts to correct the docket by removing “Washington Mutual Bank” and substituting “Federal Deposit Insurance Corporation, as Receiver of Washington Mutual Bank” as appellee in this appeal. The stay order automatically dissolved on August 29, 2009.

[ipaper docId=49949158 access_key=key-16gs2rj75pcangydg3mz height=600 width=600 /]

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The Coming Collapse of Commercial Real Estate is Already Here, Says Davidowitz (VIDEO)

The Coming Collapse of Commercial Real Estate is Already Here, Says Davidowitz (VIDEO)


Posted Feb 01, 2011 10:19am EST by Stacy Curtin in Investing, Recession

The U.S. consumer may be on the mend as we head further into 2011, but the same story of resurgence does not apply to many of the U.S. big-box retailers.

From Wal-Mart to Sears to Target to Best Buy, if you look at what is happening in the retail space, “it looks pretty scary,” says retail expert Howard Davidowitz.

Wal-Mart — the world’s largest retailer – has seen six consecutive quarters of negative same-store sales and is now looking to put the majority of its investment capital towards emerging markets.

In the case of Target and Best Buy, they both recently missed major key earnings expectations. Making matters worse, Best Buy “tanked” even without the competition from the now defunct Circuit City, Davidowitz points out.

Tale of Two Stores


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Stern’s foreclosure mistake leads two to buy same house

Stern’s foreclosure mistake leads two to buy same house


Paperwork error complicates home sale, raises questions about process

By Diane C. Lade and Doreen Hemlock, Sun Sentinel
5:00 p.m. EST, December 4, 2010

Real estate investor Marjorie Oster was pleased when she snagged what looked like a good deal through a Miami-Dade County foreclosure court auction: a four-bedroom house in Cutler Bay, with a swimming pool, for about $95,000.

But when her husband drove by the next day to check on the property, he saw “someone cleaning the pool, a lawn service cutting the grass and a note it was being tented for termites,” said Oster, a Miami resident who has been in real estate for 15 years.

It turns out the house she thought she had purchased had been sold in a short sale the week before to someone else — Osberto Jimenez, a 40-year-old Cuban-born truck driver. The law firm handling the foreclosure for the lender mishandled the paperwork and never canceled the auction sale.

“So we both own the same house and I’m frustrated as hell,” said Oster. “Someone screwed up.”

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in STOP FORECLOSURE FRAUDComments (1)

FORECLOSURE CRISIS by The Daily show with JON STEWART

FORECLOSURE CRISIS by The Daily show with JON STEWART


Foreclosure Crisis

The banks admit to not reading the fine print on the crappy mortgages the American taxpayers now own.

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Foreclosure Crisis
www.thedailyshow.com

DinSFLA

Daily Show Full Episodes Political Humor Rally to Restore Sanity

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Posted in assignment of mortgage, foreclosure, foreclosure fraud, foreclosures, forgery, robo signers, STOP FORECLOSURE FRAUDComments (0)

MICHAEL BURRY: THE HOUSING MARKET IS “ARTIFICIAL”

MICHAEL BURRY: THE HOUSING MARKET IS “ARTIFICIAL”


Michael Burry, the former head of Scion Capital LLC who predicted the housing market’s plunge, talks with Bloomberg’s Jon Erlichman about his investments in agricultural land, real estate and gold.

Michael Lewis made him famous in his book “The Big Short”.

(This is an excerpt. Source: Bloomberg)

“I believe that agricultural land, productive agricultural land with water on site, will be very valuable in the future. And I’ve put a good amount of money into that. So I’m investing in alternative investments as well as stocks.”

“I think there is some value in real estate. You have to buy it right. It’s not in general, that’s the problem. I think that there are an awful lot of people out there looking to buy these distressed properties out there and so you need to find special situations. That is how I’ve invested from the beginning. I’m looking for these special situations, these unique ideas and that’s true in real estate too.”

“In my situation I’d rather go long on housing itself, real estate itself. Depending on how you structure it, in the real market, in the physical market, you can get some pretty good deals and I’ve done some of that too.”

“Paulson is big in gold and that is something is interesting to me and given how I see the world playing out. Other than that, I’m just saying, other than gold I haven’t really bought into the other…

Source: Bloomberg TV

Photographer: Tony Avelar/Bloomberg

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Posted in Bank Owned, bogus, CONTROL FRAUD, corruption, fannie mae, FED FRAUD, federal reserve board, foreclosure, foreclosure fraud, foreclosures, goldman sachs, heloc, insider, investigation, mbs, mortgage, naked short selling, Real Estate, rmbs, STOP FORECLOSURE FRAUD, stopforeclosurefraud.com, sub-prime, trade secrets, Wall StreetComments (1)

‘Jingle Mail’: Developers Are Giving Up On Properties

‘Jingle Mail’: Developers Are Giving Up On Properties


By KRIS HUDSON And A.D. PRUITT

Like homeowners walking away from mortgaged houses that plummeted in value, some of the largest commercial-property owners are defaulting on debts and surrendering buildings worth less than their loans.

Companies such as Macerich Co., Vornado Realty Trust and Simon Property Group Inc. have recently stopped making mortgage payments to put pressure on lenders to restructure debts. In many cases they have walked away, sending keys to properties whose values had fallen far below the mortgage amounts, a process known as “jingle mail.” These companies all have piles of cash to make the payments. They are simply opting to default because they believe it makes good business sense.

“We don’t do this lightly,” said Robert Taubman, chief executive of Taubman Centers Inc. The luxury-mall owner, with upscale properties such as the Beverly Center in Los Angeles, decided earlier this year to stop covering interest payments on its $135 million mortgage on the Pier Shops at Caesars in Atlantic City, N.J.

Taubman, which estimates the mall is now worth only $52 million, gave it back to its mortgage holder.

“Where it’s fairly obvious that the gap is large, as it was with the Pier Shops, individual owners are making very tough decisions,” he said.

These pragmatic decisions by companies to walk away from commercial mortgages come as a debate rages in the residential-real-estate world about “strategic defaults,” when homeowners stop making loan payments even though they can afford them. Instead, they decide to default because the house is “underwater,” meaning its value has fallen to a level less than its debt.

Banking-industry officials and others have argued that homeowners have a moral obligation to pay their debts even when it seems to make good business sense to default. Individuals who walk away from their homes also face blemishes to their credit ratings and, in some states, creditors can sue them for the losses they suffer.

But in the business world, there is less of a stigma even though lenders, including individual investors, get stuck holding a depressed property in a down market. Indeed, investors are rewarding public companies for ditching profit-draining investments. Deutsche Bank AG’s RREEF, which manages $56 billion in real-estate investments, now favors companies that jettison cash-draining properties with nonrecourse debt, loans that don’t allow banks to hold landlords personally responsible if they default. The theory is that those companies fare better by diverting money to shareholders or more lucrative projects.

“To the extent that they give back assets or are able to rework the [mortgage] terms, it just accrues to the benefit” of the real-estate investment trust, says Jerry Ehlinger, RREEF’s co-chief of real-estate securities.

Continue reading…Wall Street Journal

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Posted in Bank Owned, commercial, deutsche bank, walk awayComments (0)

“Foreclosure Mill” David J. Sterns’ (DJSP) OTHER $17 MILLION MEGA ESTATE

“Foreclosure Mill” David J. Sterns’ (DJSP) OTHER $17 MILLION MEGA ESTATE


TampaBay.com recently exposed how some foreclosure mills are striving with wealth. In particular one law firm in the Fort Lauderdale area.

Here is another ‘Mega Estate’ under a “CERTAIN TRUST AGREEMENT” c/o  The Law Offices of David J. Stern, PA 900 S. Pine Island Rd., Suite 400, Plantation Florida 33324. This is not far from his other $15,000,000.00 dollar “Mega Estate” and his $5 million dollar Ft. Lauderdale Beach condo.

This Hillsborough Estate, like his Ft. Lauderdale Estate also features a tennis court. According to BCPA.net this double lot MEGA ESTATE was purchased for a combined total of $17,000,000.00 in 2008.

Mr. Stern’s ‘nonlegal’ company DJSP Enterprises, Inc recently filed their Form S-8 with the SEC. I wonder where all these SHARES are going?

SOURCE: BROWARD COUNTY PROPERTY APPRAISERS

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Posted in djsp enterprises, foreclosure, foreclosure mills, Law Offices Of David J. Stern P.A.Comments (2)

FRANKENSTEIN Real Estate | TRILLIONS in DEBT

FRANKENSTEIN Real Estate | TRILLIONS in DEBT


Frankenstein real estate market – $3.5 trillion in commercial real estate debt and $10.3 trillion in residential real estate debt. Will we reach a 50 percent underwater market where 25 million Americans sit in homes worth less than their mortgage?

The real estate market has morphed into a beast that is largely sinking the overall economy into the ground.  If we combine the commercial real estate market ($3.5 trillion in debt) with residential outstanding mortgages ($10.3 trillion) we arrive at a figure that nears the annual GDP of our country.  What makes the figure even more troubling is the amount of leverage found in the real estate market.  Many of these loans will default yet banks are maintaining the notion that at some point par value will be reached; for many the par value scenario is the worst case they have mapped out, and this is highly optimistic.  We have created a real estate Frankenstein that now has a mind of its own and will do everything it can to stay afloat going forward, even at the expense of the real economy.  In fact, the real estate monster thinks it is the economy.

There is a flip side to housing values falling which seems to be ignored since most of the mainstream rhetoric is guided by the FIRE (finance, insurance, and real estate) experts.  The most obvious benefit is those looking to buy their first home don’t need to put themselves into so much debt that they risk their entire financial future for a home.  The next subtle change is the amount of money diverted from housing related spending to other sectors of the economy.  This last change will take time to sink into the overall economy but there is definitely a benefit of moving away from an economy highly dependent on Wall Street finance and real estate.

If we look at the current nationwide situation, the amount of distressed loans is stunning:

I think that the above disaster in distressed mortgages is causing very little reaction because we have somehow adapted to the current shocking situation.  Over 10 percent of all U.S. mortgages are at least one payment behind and another 4 percent are already in the process of foreclosure.  This figure is incredible given the entire mortgage market is made up of over 51 million active mortgages.  In 2007 if you were to tell someone that prices in California would fall by 50 percent (even 10 percent) many would have ignored you.  Now, it is standard practice for the market.

As a country we are much too reliant on real estate.  Commercial real estate is the next tragic saga in the RE bubble bursting with prices already falling by 42 percent.  At one point, CRE values in the U.S. were up to $6.5 trillion (now this was a rough generous estimate at the time).  Today, CRE values are down closer to $3 to $3.5 trillion; this is roughly the same amount of CRE loans outstanding.  This has pushed defaults through the roof:

The exponential rise is cause for serious concern.  There is little energy or political will to bailout the enormous CRE market.  This probably won’t stop the Federal Reserve and U.S. Treasury to game the system yet again and put taxpayers on the hook.  They created this massive monster and now want the public to fight it off with pitchforks.  The above chart is disturbing and the amount of bank failures we are seeing is directly related to the above trend.  Many smaller banks are deep in the trenches with CRE debt and much of this is now going bad.  How many strip malls do we really need?  Maybe having 20 Taco Bells in a one mile radius probably isn’t such a good idea.  Many of the commercial projects were built in the anticipation of sky high residential prices to justify their absurd underwriting expectations.  The above results have no excuse and are largely a reflection of massive delusional speculation in all things real estate.

Now that expectations are coming more into line and the fantasy world of Alt-A, subprime, and option ARM loans are behind us, most people have to qualify to get a loan with actual real income which many are now finding less of.  Banks lending virtually all government money, are now beholden to stricter (aka basic due diligence) in order to give out loans.  Yet if we look at the negative equity situation, the real estate monster grows scarier:

Over 20 million mortgage holders are underwater.  It is amazing that a few years ago, Deutsche Bank estimated that at the ultimate trough of the housing market, nearly half of all mortgages would be underwater.  This “doomsday” scenario seemed extremely farfetched.  Today, another 10 percent nationwide price decline would put us there.  Even without prices declining further, having 20 million Americans underwater is not a good sign going forward.  You figure over 7 million people are one payment behind or in foreclosure.  But what about the other 13 million?  This enormous group is basically a large cohort of renters but in a worse financial situation.  They are stuck.

Continue reading…DoctorHousingBubble

© 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



Posted in Bank Owned, foreclosure, foreclosures, Real Estate, shadow foreclosuresComments (0)

Video: It’s time for banks to do more to help homeowners in foreclosure

Video: It’s time for banks to do more to help homeowners in foreclosure


This is exactly what is going on with these Scams. Just as in this post I made prior this homeowner tried to do all they can to work with their lender to get help, modify and pay them current market value. Instead they foreclosed.

In this case they owed about 300K, according to tax records LPS, yes Lender Processing Services inc. came in and purchased it for $74,100 at the auction. Now the  home is pending sale for $59K. Sold it for less in a matter of a month??? Okkkaaaay?

How does this make ANY kind of sense? I can only see it making FRAUD sense…these homeowners vouch not to give up contacted the listing agent about the scam as well as mentioning Law Offices of David J. Stern the foreclosing firm for the lender. This does not make ANY sense what so ever and we need to continue exposing this fraud!

David Lazarus June 24, 2010 | 10:56 pm Los Angeles Times

Consumer columnist David Lazarus says banks should end their one-size-fits-all policies and help more homeowners who are in foreclosure.

Take the Fontana woman he writes about In his latest column. She wasn’t obligated to meet the mortgage obligations her husband left when he was killed in a car accident. But she wanted to stay in the home and tried negotiating lower payments with the bank.

Should the bank do more to  help her?

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Posted in auction, Bank Owned, conspiracy, CONTROL FRAUD, foreclosure, foreclosure fraud, foreclosures, mortgage modification, shadow foreclosuresComments (0)

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