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IN RE: BALDERRAMA | 2nd allonge includes an endorsement from RFC (Judy Faber) to Deutsche that did not exist in the first allonge…3 different Promissory Notes

IN RE: BALDERRAMA | 2nd allonge includes an endorsement from RFC (Judy Faber) to Deutsche that did not exist in the first allonge…3 different Promissory Notes


**Judy Faber has a history on this site and named in some important cases…check it out!

 

UNITED STATES BANKRUPTCY COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

In re
MARIA RENEE BALDERRAMA
Debtor.

CARLA P. MUSSELMAN, TRUSTEE
Plaintiff,

vs.

DEUTSCHE BANK TRSUTE COMPANY
AMERICAS, in trust for Residential
Accredit Loans, Inc. Mortgage Asset-
Backed Pass-Through Certificates, Series
2007-QH5,
Defendant.

MEMORANDUM OPINION PARTIALLY GRANTING AND
PARTIALLY DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT

EXCERPT:

In response, the trustee filed her own cross motion for summary judgment arguing the
various documents Deutsche has provided to support its position, including three different
versions of the note and two versions of the allonge, were ineffective to transfer any interest to
Deutsche and evidence Deutsche‘s bad faith in purporting to own the note.17 The trustee‘s
argument primarily is based on the second allonge provided by Deutsche upon the Court‘s order
compelling discovery. The second allonge includes an endorsement from RFC to Deutsche that
did not exist in the first allonge, and, according to the trustee, Deutsche caused this endorsement
to be made fraudulently to meet the needs of litigation.18 The trustee urges the Court to find
Deutsche has not adequately explained the discrepancies between the two allonges, has not met
its burden to prove it is the legitimate owner of the note, and title to the Property should vest in
the trustee.

[…]

Neither version of the allonge, however, includes dates of the alleged transfers as stated
by Ms. Faber. Even assuming she had the authority to endorse the note to Deutsche, Ms. Faber
does not explain why RFC initially failed to produce the second allonge with the RFC
endorsement in its motion to lift stay, even though it allegedly existed at that time. These ?holes?
present substantial questions of fact as to Deutsche‘s good faith and the second allonge‘s
authenticity. The Court cannot avoid suspecting that the second allonge indeed was created
solely to rebut the trustee‘s assertions in this litigation and did not previously exist. If so, the
Court suggests Deutsche and Ms. Faber individually consider the possible consequences of
propounding potentially false evidence and perjured testimony to the Court.

[ipaper docId=81975432 access_key=key-1kab3johohtn0eshfdqc height=600 width=600 /]

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In RE: BASS | North Carolina Appeals Court Affirms U.S. Bank c/o Wells Fargo ‘Judy Faber’s Invalid Stamp Indorsement, Not the legal holder of a promissory note’

In RE: BASS | North Carolina Appeals Court Affirms U.S. Bank c/o Wells Fargo ‘Judy Faber’s Invalid Stamp Indorsement, Not the legal holder of a promissory note’


NORTH CAROLINA COURT OF APPEALS

In the Matter of the foreclosure
of a Deed of Trust executed by
Tonya R. Bass in the original
amount of $139,988.00 dated
October 12, 2005, recorded in Book
4982, Page 86, Durham County
Registry,

Substitute Trustee Services, Inc.,
as Substitute Trustee,

Appeal by Petitioner from order entered 14 September 2010
by Judge Abraham Penn Jones in Durham County Superior Court.
Heard in the Court of Appeals 27 October 2011.

K&L Gates, LLP, by A. Lee Hogewood, III and Brian C. Fork,
for Petitioner-appellant.

Legal Aid of North Carolina, Inc., by E. Maccene Brown,
Gregory E. Pawlowski, John Christopher Lloyd, and Andre C.
Brown, for Respondent-appellee.

HUNTER, JR., Robert N., Judge.

U.S. Bank, National Association, as Trustee, c/o Wells
Fargo Bank, N.A. (“Petitioner”) appeals the trial court’s order
dismissing foreclosure proceedings against Respondent Tonya R.
Bass. Petitioner assigns error to the trial court’s
determination that Petitioner is not the legal holder of a
promissory note executed by Respondent and therefore lacks
authorization to foreclose on Respondent’s property securing the
note under a deed of trust. After careful review, we affirm.

Excerpt:

Furthermore, Comment 1 to North Carolina General Statutes
§ 25-3-308 defines “presumed” to mean “that until some evidence
is introduced which would support a finding that the signature
is forged or unauthorized, the plaintiff is not required to
prove that it is valid.” Id. In contrast to the stamp at
issue, a handwritten signature accompanies each of the other
stamps on the Note introduced by Petitioner before the trial
court. The stamp purporting to transfer the Note from
Residential to Petitioner, for example, bears the apparent
handwritten signature of Judy Faber, identified as Residential’s
vice president. This signature provides at least some evidence
that this stamp was executed with the requisite intent and
authority. Whether a stamp bearing an apparent handwritten
signature is sufficient competent evidence of the purported
indorsement, however, is not before this Court as Respondent
challenges the only stamp without a handwritten signature. The
omission of a handwritten signature with respect to the
challenged stamp is competent evidence from which the trial
court could conclude that this particular stamp was not executed
by an authorized individual and is therefore facially invalid
indorsement. Thus, even if Respondent had failed to object to
the stamp, which it did not, the burden properly remained upon
Petitioner to prove its validity.

[ipaper docId=75081797 access_key=key-1zz3byrbex3zpcm5knnv height=600 width=600 /]

MUST READ:

FULL_DEPOSITION_OF_GMAC_JUDY_FABER

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U.S. BANK NA v. KIMBALL | VT Supreme Court Affirms w/Prejudice “AFFIDAVIT FAIL, Jeffrey Stephan, Scott Zeitz, Accredited, Allonge, MERS, RFC, Homecomings, GMAC”

U.S. BANK NA v. KIMBALL | VT Supreme Court Affirms w/Prejudice “AFFIDAVIT FAIL, Jeffrey Stephan, Scott Zeitz, Accredited, Allonge, MERS, RFC, Homecomings, GMAC”


U.S. Bank National Association (2010-169)

2011 VT 81

[Filed 22-Jul-2011]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports.  Readers are requested to notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in order that corrections may be made before this opinion goes to press.

2011 VT 81

No. 2010-169

U.S. Bank National Association

Supreme Court




On Appeal from

v.

Grand Isle Superior Court




Christine Kimball

January Term, 2011





Ben W. Joseph, J.

Andre D. Bouffard of Downs Rachlin Martin PLLC, Burlington, for Plaintiff-Appellant.

Grace B. Pazdan, Vermont Legal Aid, Inc., Montpelier, for Defendant-Appellee.

PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

¶ 1. BURGESS, J. Plaintiff US Bank National Association, as trustee for RASC 2005 AHL1, appeals from a trial court order granting summary judgment for defendant homeowner and dismissing with prejudice US Bank’s foreclosure complaint for lack of standing.  On appeal, US Bank argues that it had standing to prosecute the foreclosure claim and the court’s dismissal with prejudice was in error.  Homeowner cross-appeals, arguing that the court erred in not addressing her claim for attorney’s fees.  We affirm the dismissal and remand for consideration of homeowner’s motion for attorney’s fees.

¶ 2. On appeal from a grant of summary judgment, “the nonmoving party receives the benefit of all reasonable doubts and inferences.”  Samplid Enters., Inc. v. First Vt. Bank, 165 Vt. 22, 25, 676 A.2d 774, 776 (1996). We review the decision de novo under the same standard as the trial court.  Id.  Summary judgment is appropriate if there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.  Id.; see V.R.C.P. 56(c)(3).

¶ 3. So viewed, the record reveals the following facts.  Homeowner purchased property on June 16, 2005.  To finance the purchase, she executed an adjustable rate promissory note in favor of Accredited Home Lenders, Inc. (Accredited) in the amount of $185,520.  The note was secured by a mortgage deed to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Accredited.

¶ 4. On January 12, 2009, US Bank filed a foreclosure complaint for homeowner’s failure to make required payments.  The complaint alleged that the mortgage and note were assigned to US Bank by MERS, as nominee for Accredited, by an instrument dated January 6, 2009.  Attached to the complaint was a copy of the instrument entitled “Assignment of Mortgage,” signed by Jeffrey Stephan, identified therein as Duly Authorized Agent and Vice President of MERS.  The promissory note was also attached to the complaint, and appended to it was an undated allonge[1] signed by a corporate officer of Accredited, endorsing the note in blank.

¶ 5. Homeowner initially filed a pro se answer.  After procuring counsel, homeowner filed an amended answer, claiming, among other things, that US Bank failed to present sufficient evidence that it held homeowner’s note and corresponding mortgage.  Homeowner also filed a counterclaim alleging consumer fraud.  In March 2005, homeowner filed a motion for summary judgment arguing that US Bank lacked standing to bring the foreclosure complaint because it failed to establish that it held an interest in the debt secured by homeowner’s property.  Homeowner argued that US Bank had not established proper assignment of the mortgage because MERS as nominee for Accredited lacked authority to assign the mortgage.  Homeowner further argued that US Bank failed to demonstrate that it held or had a right to enforce the promissory note.  In July 2009, in support of the motion for summary judgment, homeowner submitted an affidavit, averring that in mid-June 2009 she received a letter from her mortgage servicer, Homecomings Financial, notifying her that the servicing rights to her loan were being assigned not to US Bank, but to GMAC Mortgage, LLC effective July 1, 2009.  She also averred that she received a concurrent letter from GMAC, confirming that it was servicing the loan on behalf of Residential Funding Corporation (RFC).  The letters referred to in the affidavit were attached.

¶ 6. US Bank opposed the request and responded with its own cross-motion for summary judgment on the merits, claiming that whatever deficiencies were present in its original complaint were now resolved because it had produced and sent to homeowner “a copy of the fully endorsed note specifically payable to [US Bank].”  In its statement of undisputed facts, US Bank asserted that it had the original note, and that it was endorsed from Accredited to RFC and then to US Bank.  No dates, however, were provided for these endorsements.  In support, US Bank attached an affidavit attesting to these facts, but still devoid of any dates for the purported assignments.  The affidavit was signed by Jeffrey Stephan, the same man who had signed the assignment attached to original complaint, but this time identifying himself as a “Limited Signing Officer” for GMAC, the mortgage servicer for homeowner’s loan.  In the affidavit, Stephan claims that he has “familiarity with the loan documentation underlying the mortgage loan entered at issue in the present foreclosure case.”  The copy of the note attached had an allonge, appearing to be the same allonge previously submitted as endorsed in blank, but this time with “RFC” stamped in the blank spot and containing a second endorsement from RFC to US Bank.  Neither endorsement was dated.

¶ 7. The court held a hearing on the summary judgment motions.  Following the hearing, the court issued a written order on October 27, 2009.  The court concluded that to enforce a mortgage note, “a plaintiff must show that it was the holder of the note at the time the Complaint was filed,” and here there was “simply no evidence of an assignment to a party in interest.”  Because neither note submitted by US Bank was dated, the court concluded that there was no evidence that the note was endorsed to US Bank before the complaint was filed.  Therefore, the court held that US Bank lacked standing to bring the foreclosure action.  The court granted homeowner’s motion for summary judgment, dismissed the foreclosure action, and set the matter for hearing on homeowner’s counterclaim.

¶ 8. On November 23, 2009, US Bank moved for reconsideration.[2] US Bank acknowledged that it had created “confusion” by attaching to the complaint “an outdated copy of the note prior to its transfer to [US Bank], and a mortgage assignment that purports to assign the note along with the mortgage.”  It claimed, however, that because it now held the original note, it was entitled to enforce it.  Homeowner did not dispute that US Bank possessed what appeared to be the original note, but she insisted US Bank was required to authenticate the endorsements through credible affidavits and to demonstrate that it had possession when the complaint was filed.  As to this timing issue, US Bank contended that homeowner’s mortgage had been endorsed to it in September 2005.  In support, US Bank submitted an affidavit signed by Scott Zeitz, who is identified as a litigation analyst with GMAC.  In the affidavit, ZeitzZeitz avers that homeowner’s mortgage note was endorsed to RFC and then to US Bank in September 2005.  The affidavit does not explain the obvious inconsistencies with the prior affidavits offered by US Bank or with the letter homeowner received from GMAC identifying RFC as the holder of her note in June 2009.  It also does not explain how obtained this knowledge given that GMAC did not begin servicing the loan until July 1, 2009.  In the alternative, US Bank argued that, even if did not hold an interest in the note at the time the complaint was filed, it could cure the deficiency by now substituting itself as the real party in interest under Rule of Civil Procedure 17(a).  US Bank also filed a motion to amend its complaint to properly reflect the manner in which it now alleged that it acquired an interest in homeowner’s note and mortgage.

¶ 9. Homeowner opposed the motions, contending that the numerous inconsistencies in the information offered by US Bank made it unreliable.  In addition, homeowner argued that the Zeitz affidavit was not based on personal knowledge and therefore insufficient to support the motion.  Homeowner moved for reasonable attorney’s fees under Rule 56(g), claiming that US Bank acted in bad faith by filing affidavits lacking a basis in personal knowledge and contradicting undisputed evidence.[3] Homeowner explained that as a result her attorney “spent numerous hours responding to and refuting the validity of the affidavits.”

¶ 10. Following a hearing, the court denied the motions for reconsideration and to amend the complaint.  The court concluded that US Bank had submitted a defective complaint and the deficiencies therein were not mere technicalities, but essential items, without which the case could not proceed.  The court held that US Bank lacked standing when the complaint was filed, and dismissed the complaint “with prejudice.”  US Bank appeals.

¶ 11. On appeal, US Bank argues that the court erred in (1) dismissing the complaint with prejudice; (2) concluding there was no standing when there was evidence demonstrating that US Bank was the holder of the note before the complaint was filed; and (3) denying US Bank’s request to substitute itself as the real party in interest.  Homeowner cross-appeals, arguing that the court failed to address her request for attorney’s fees and requesting a remand.

¶ 12. We begin with the issue of standing.  “[O]ur review of dismissal for lack of standing is the same as that for lack of subject matter jurisdiction.  We review the lower court’s decision de novo, accepting all factual allegations in the complaint as true.”  Brod v. Agency of Natural Res., 2007 VT 87, ¶ 2, 182 Vt. 234, 936 A.2d 1286.  We have the same standing requirement as the federal courts in that our jurisdiction is limited to “actual cases or controversies.”  Parker v. Town of Milton, 169 Vt. 74, 76-77, 726 A.2d 477, 480 (1998). Therefore, to bring a case “[a] plaintiff must, at a minimum, show (1) injury in fact, (2) causation, and (3) redressability.”  Id. at 77, 726 A.2d at 480 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).  This means a plaintiff “must have suffered a particular injury that is attributable to the defendant,” id. at 77, 726 A.2d at 480, and a party who is not injured has no standing to bring a suit.  Bischoff v. Bletz, 2008 VT 16, ¶¶ 15-16, 183 Vt. 235, 939 A.2d 420.  And, as the U.S. Supreme Court has explained, “standing is to be determined as of the commencement of suit.”  Lujan, 504 U.S. at 570 n.5.

¶ 13. To foreclose a mortgage, a plaintiff must demonstrate that it has a right to enforce the note, and without such ownership, the plaintiff lacks standing.  Wells Fargo Bank, N.A. v. Ford, 15 A.3d 327, 329 (N.J. Super. Ct. App. Div. 2011).  While a plaintiff in a foreclosure should also have assignment of the mortgage, it is the note that is important because “[w]here a promissory note is secured by a mortgage, the mortgage is an incident to the note.”  Huntington v. McCarty, 174 Vt. 69, 70, 807 A.2d 950, 952 (2002). Because the note is a negotiable instrument, it is subject to the requirements of the UCC.  Thus, US Bank had the burden of demonstrating that it was a “ ‘[p]erson entitled to enforce’ ” the note, by showing it was “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument.”  9A V.S.A. § 3-301.  On appeal, US Bank asserts that it is entitled to enforce the note under the first category—as a holder of the instrument.

¶ 14. A person becomes the holder of an instrument when it is issued or later negotiated to that person.  9A V.S.A. § 3-201(a). Negotiation always requires a transfer of possession of the instrument.  Id. § 3-201 cmt. When the instrument is made payable to bearer, it can be negotiated by transfer alone.  Id. §§ 3-201(b), 3-205(a). If it is payable to order—that is, to an identified person—then negotiation is completed by transfer and endorsement of the instrument.  Id. § 3-201(b). An instrument payable to order can become a bearer instrument if endorsed in blank.  Id. § 3-205(b).See Bank of N.Y. v. Raftogianis, 13 A.3d 435, 439-40 (N.J. Super. Ct. Ch. Div. 2010) (reciting requirements for bank to demonstrate that it was holder of note at time complaint was filed). Therefore, in this case, because the note was not issued to US Bank, to be a holder, US Bank was required to show that at the time the complaint was filed it possessed the original note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to US Bank.

¶ 15. US Bank lacked standing because it has failed to demonstrate either requirement.  Initially, US Bank’s suit was based solely on an assignment of the mortgage by MERS.  The complaint did not allege that US Bank held the original note.  US Bank simply attached a copy of the note with an allonge endorsement in blank.  Homeowner challenged this evidence as insufficient to show that US Bank held an interest in her note.  Because homeowner supported her position with an affidavit and documentary evidence, US Bank was required to “come forward with an opposing affidavit or other evidence that raises a dispute as to the fact or facts in issue.”  Alpstetten Ass’n, Inc. v. Kelly, 137 Vt. 508, 514, 408 A.2d 644, 647 (1979). At this point, US Bank abandoned its claim of assignment of the mortgage and instead asserted that it held the original note.  It submitted the note with an allonge containing two undated specific endorsements, one to US Bank.  The supporting affidavit claimed that the note had been endorsed to US Bank, but provided no information about when and failed to explain why a note with a blank endorsement was the basis for the complaint.

¶ 16. Based on this contradictory and uncertain documentation, the trial court did not err in concluding that there was no evidence to show that US Bank was a holder of the note at the time it filed the complaint.  US Bank failed to allege or demonstrate that it held the original note endorsed in blank when it commenced the foreclosure action.  In fact, US Bank asserted that the note with the blank endorsement was an earlier copy that was mistakenly attached to the complaint.  It also alleged that the blank endorsement was stamped with RFC’s name in 2005.  Therefore, it could not possibly have held the original note with a blank endorsement when the complaint was filed.  Further, there is no evidence to show that US Bank held the original note endorsed to its name before the complaint was filed.  While US Bank eventually produced the original note with an endorsement to it, none of the evidence submitted at summary judgment by US Bank established the timing of the endorsement.  Given US Bank’s failure to show it had standing, the foreclosure complaint was properly dismissed.

¶ 17. US Bank argues that whatever shortcomings were present in its earlier filings were cured by the documents attached to its motion to reconsider, and, therefore, the court erred in denying this motion.  We disagree.  The additional affidavit submitted with the motion to reconsider did nothing to establish the timing of the endorsement to US Bank because it was not based on personal knowledge and contained conclusions rather than facts.  Affidavits must be “made on personal knowledge [and] set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”  V.R.C.P. 56(e). The affiant, Zeitz, declared himself to be an employee of GMAC, the servicer of homeowner’s loan.  Zeitz averred that the note was endorsed to US Bank in September 2005 but provided no explanation of how he gained personal knowledge about this endorsement that supposedly took place several years before his company began servicing homeowner’s loan.  Further, the affidavit failed to explain the obvious contradictions with other evidence.  Specifically, Zeitz did not account for the letter from his company, submitted by homeowner, that identifies RFC, the predecessor-in-interest to US Bank, as the holder of the loan in July 2009, months after the complaint was filed.  Having already failed to succeed on its summary judgment motion, reconsideration of the same issues on new evidence was up to the court’s sound discretion.  See Crosby v. Great Atl. & Pac. Tea Co., 143 Vt. 537, 539, 468 A.2d 567, 568 (1983) (per curiam) (affirming court’s denial of plaintiffs’ motion to reconsider summary judgment ruling using an abuse-of-discretion standard).  Fraught with contradictions and evidently lacking information based on personal knowledge, the affidavit was insufficient to establish that US Bank had an interest in the note prior to the time the complaint was filed.  Thus, it was no abuse of discretion for the court to deny the motion to reconsider.

¶ 18. In the alternative, US Bank argues that even if it did not hold the note at the time the complaint was filed, this should be overlooked because it has now produced the original note with a chain of endorsements ending in US Bank.[4] Thus, US Bank contends it can now be substituted as the real party in interest under Rule 17(a).  US Bank argues that this Court allows liberal substitution of parties, citing Korda v. Chicago Insurance Co., 2006 VT 81, 180 Vt. 173, 908 A.2d 1018.  In that case, the trial court dismissed an estate’s claims against a tortfeasor’s employer’s insurance company where the employer did not assign its rights to the estate until three years after the complaint was filed.  This Court reversed, holding that “where, as here, a plaintiff acquires capacity to sue after the suit is filed, and before the action is dismissed for lack of capacity, the acquisition of capacity relates back to the filing of the action for all purposes, including compliance with the statute of limitations.”  Id. ¶ 16. US Bank contends it is similarly situated and is entitled to substitution as the real party in interest now that it has obtained an interest in the note.

¶ 19. The merit of this argument might have been better received by the trial court had it been supported by the necessary documentation and proffered before summary judgment was granted for defendant.  US Bank had notice of the standing deficiency from the start of the litigation and had an opportunity to prove its case.  It was unable to do so.  Having failed to support its position, the court was not required to give US Bank another opportunity to prove its case following the grant of summary judgment, and did not abuse its discretion in denying the request at that late stage in the proceeding.  See V.R.C.P. 17(a) (directing that action not be dismissed for absence of real party in interest “until a reasonable time has been allowed”).

¶ 20. US Bank argues that for reasons of policy it should be permitted to proceed because it would be wasteful to prevent it from being able to “cure” its standing problem.  While we are sympathetic to the desire to avoid wasteful and duplicative litigation, the source of the unnecessary proceedings in this case was not an overly wooden application of the rules, but US Bank’s failure to abide by them.  It is neither irrational nor wasteful to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit.[5] Nor is it irrationally demanding to expect the foreclosing party to provide adequate, satisfying proof in response to a motion for summary judgment challenging standing to bring suit.  What should have here been a fairly straightforward, if not a summary, proceeding under the rules, was rendered inefficient by US Bank’s failure to marshal its case before compelling homeowner and the court to waste time and resources, twice, by responding to what could not be proven.  There was nothing inequitable in dismissing this matter.

¶ 21. We turn next to the question of whether the court erred in dismissing the complaint “with prejudice.”  US Bank argues this was in error and homeowner contends that the court’s determination bars US Bank from filing again to foreclose.  At a minimum, the court certainly intended to put an end to US Bank’s instant foreclosure action and dismissal was appropriate because, as another court explained, when a plaintiff is not able to establish that it possessed the note on the date the complaint was filed, the complaint should be subject to dismissal “if only to provide a clear incentive to plaintiffs to see that the issue of standing is properly addressed before any complaint is filed.”  Raftogianis, 13 A.3d at 455.

¶ 22. Nevertheless, and despite the court’s invocation of “with prejudice” in its dismissal order, US Bank cannot be precluded from pursuing foreclosure on the merits should it be prepared to prove the necessary elements.  Although postured as cross-motions for summary judgment, the motion practice addressed only whether the bank had standing for jurisdictional purposes.  The merits of foreclosure were not, and on this record could not have been, litigated.  The court’s dismissal on just jurisdictional grounds was no adjudication on the merits.  See V.R.C.P. 41(b)(3) (providing that any involuntary dismissal, “other than a dismissal for lack of jurisdiction, . . . operates as an adjudication upon the merits” (emphasis added)); see also Wells Fargo Bank, N.A. v. Byrd, 2008-Ohio-4603, ¶¶ 18-20, 897 N.E.2d 722 (Ct. App.) (reversing trial court’s dismissal with prejudice of foreclosure complaint as inappropriate where dismissal was for lack of standing).

¶ 23. Thus, this may be but an ephemeral victory for homeowner.  Absent adjudication on the underlying indebtedness, the dismissal cannot cancel her obligation arising from an authenticated note, or insulate her from foreclosure proceedings based on proven delinquency.  Cf. Indymac Bank, F.S.B. v. Yano-Horoski, 912 N.Y.S.2d 239, 240 (App. Div. 2010) (reversing trial court’s order canceling mortgage and debt).  Homeowner’s arguments supporting a dismissal with prejudice are not convincing.[6] Homeowner relies on Nolen v. State, but that unpublished three-justice decision simply affirmed the trial court’s decision to dismiss with prejudice plaintiff’s constitutional claim for lack of standing without a challenge to or any analysis of the “with prejudice” designation.  No. 08-131, 2009 WL 2411832, at *2 (Vt. May 29, 2009) (unpub. mem.), available at http://www.vermontjudiciary.org/d-upeo/upeo.aspx.New Eng. Educ. Training Serv., Inc. v. Silver St. P’ship, 156 Vt. 604, 613, 595 A.2d 1341, 1345-46 (1991) (affirming dismissal of foreclosure action where recovery on the underlying note would be unconscionable).  While the trial court may have had discretion to exert its equitable powers in this manner, no findings were made to support such a conclusion, and we will not speculate on a matter of such importance. Further, the court’s order does not support plaintiff’s assertion that the court was warranted in dismissing with prejudice on equitable grounds given what homeowner characterizes as inconsistent and “likely fraudulent filings” submitted by US Bank.  See

¶ 24. Finally, we address homeowner’s cross-appeal.  In response to US Bank’s motion to reconsider, homeowner filed a motion for attorney’s fees asserting that US Bank had filed affidavits in bad faith.  We agree that the request for attorney’s fees under Rule 56(g) was timely and properly raised in the trial court, and that the court erred in failing to consider the motion.  Therefore, we remand for consideration of homeowner’s request.

The foreclosure complaint is dismissed and the case is remanded for consideration of defendant’s motion for attorney’s fees.




FOR THE COURT:












Associate Justice




[1] An allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.”  Black’s Law Dictionary 83 (8th ed. 2004).  The Uniform Commercial Code (UCC) accepts the use of such endorsements, explaining that “a paper affixed to the instrument is a part of the instrument.”  9A V.S.A. § 3-204(a). Although at one time an allonge could be used only when there was no room on the original document, the official comment to the UCC explains that now an allonge “is valid even though there is sufficient space on the instrument for an indorsement.”  Id. § 3-204 cmt.

[2] Because final judgment had not yet been entered, the motion was filed pursuant to Rule of Civil Procedure 56.  See Kelly v. Town of Barnard, 155 Vt. 296, 307, 583 A.2d 614, 620 (1990) (holding that trial court retains jurisdiction to modify or rescind order prior to entry of final decree and may grant summary judgment motion after denying prior similar motion).

[3] In pertinent part, Rule of Civil Procedure 56(g) states:


Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith . . . , the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged in contempt.

[4] This argument in and of itself underscores the extent of confusion created by US Bank’s evidence.  While, on the one hand, US Bank wishes us to accept that it has uncontroverted evidence that it has held homeowner’s note since September 2005, on the other hand, it argues that it has acquired an interest in the note recently and can now be substituted as the real party in interest.  It appears that even US Bank is unsure of when the note was endorsed to it.

[5] We note that the foreclosure rule as amended now specifically requires a plaintiff to attach to the complaint “the original note and mortgage deed and proof of ownership thereof, including copies of all original endorsements and assignments of the note and mortgage deed.”  V.R.C.P. 80.1(b)(1) (Cum. Supp. 2010); see 2009, No. 132 (Adj. Sess.) § 1.

[6] We note that two cases cited by homeowner to support dismissal of a foreclosure complaint with prejudice have since been reversed.  U.S. Bank N.A. v. Emmanuel, No.  19271/09, 2010 WL 1856016  (N.Y. Sup. Ct. May 11, 2010), reversed by 921 N.Y.S.2d 320 (App. Div. 2011); IndyMac Bank F.S.B. v. Yano-Horoski, 890 N.Y.S.2d 313 (Sup. Ct. 2009), reversed by 912 N.Y.S.2d 239 (App. Div. 2010).

[ipaper docId=60868554 access_key=key-7wasg9bn6sta85c6ged height=600 width=600 /]

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MUST READ! NY Judge Vacates NOTE Over Confusion, LQQK And SEE WHY! JPMorgan Chase v. RAMIREZ

MUST READ! NY Judge Vacates NOTE Over Confusion, LQQK And SEE WHY! JPMorgan Chase v. RAMIREZ


CA Retired Judge Samuel L. Bufford said it best

“Lenders passed around the deed to Vargas’ house as if it were a whiskey bottle at a frat party”

Jp MORGAN CHASE BANK, N.A. f/k/a Jp
MORGAN CHASE BANK f/k/a THE CHASE
MANHA TTAN BANK, AS TRUSTEE,

against

INDI flRA RAMIREZ, JOSEPH JAMES, KEISH
McCLOUD a/k/a KEISHA McLEOD, MYRNA
JAMES, NORTH FORK BANK,

Excerpt:

Finally, a court may vacate a note of issue at any time on its own motion if it appears that a material fact in the certificate of readiness is incorrect (see, 22 NYCRR 202.21 [e]; Simon v City of Syracuse Police Dept., 13 AD3d 1228, 787 NYS2d 577 [4th Oept 2004], Iv dismissed 5 NY2d 746, 800 NYS2d 375 [2005]). Here, based on the evidence submitted with the moving papers and the confusion regarding plaintiff’s standing and prosecution of this foreclosure action, the Court concludes that the certificate of readiness contains a misstatement of material fact, namely, that
disclosure is complete and the action is ready for trial. Accordingly, the Court, sua sponte, vacates the note of issue filed by plaintiff and strikes this action from the trial calendar (see 22 NYCRR 202.21 [e]).

This is a MUST read below…

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



Posted in STOP FORECLOSURE FRAUDComments (0)

Do You Know Exactly Who Is Receiving Info When You Apply For HAMP?

Do You Know Exactly Who Is Receiving Info When You Apply For HAMP?


Via: Anonymous

This is fascinating. It showed up on the American Banker site this morning, which is not readable without subscription.

Contrary to the statement that these ‘counselors’ do not “track” follow-up, I recently received a request to fill-in a follow up e-survey which was oddly pre-filled out stating erroneously that I had not disclosed the identity of my bank during my “counseling” session.

I forwarded it to SIGTARP, COP, and the President with the relevant questions.

So… Could it be that counsel-obtained info via Hope hotlines could corrupt HAMP performance data, and/or disadvantage borrowers in litigation/settlement?

http://www.collectionscreditrisk.com/news/lender-tie-to-borrower-aid-3004375-1.html

Excerpt from article:

Some industry experts have questioned why a nonprofit affiliated with servicers is receiving government funding to resolve disputes between borrowers and the same servicers who are denying modifications. Several distressed homeowners who contacted American Banker said servicers refuse to give explanations for denied mods. Many were put into trial mods at a reduced payment but were later denied and are now in worse shape because servicers demand that any arrearages be paid in full for the loan to become current.

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



Posted in STOP FORECLOSURE FRAUDComments (3)

MIND-BLOWING!! NY JUDGE DENIES 127 FORECLOSURES PURSUANT TO ADMINISTRATIVE ORDERS FROM CHIEF JUDGE, ROBO SIGNING

MIND-BLOWING!! NY JUDGE DENIES 127 FORECLOSURES PURSUANT TO ADMINISTRATIVE ORDERS FROM CHIEF JUDGE, ROBO SIGNING


JUDGE COHALAN IS JUDGE OF THE WEEK!!!

“Issues”…Nah no “issues”? If this isn’t sending us a message or 127 messages that there aren’t any “issues”… Let them continue to submit exactly what they were filing before the *New Rule*… don’t stop now! Believe me there is more than these!

EXCERPT:

Pursuant to an Administrative Order of the Chief Judge, dated October 20, 2010, all residential mortgage foreclosure actions require an affirmation from the attorney representing the plaintiff/lender/bank, as stated in the affirmation attached to this order, that he/she has inspected all documents.

The plaintiff is also directed on any future application to provide a copy of this Court’s order, the prior application/motion papers and an updated affidavit of regularity/merit from the plaintiff/lender/bank’s representative that he/she has reviewed the file in this case and that he/she documents that all paperwork is correct. The plaintiff/lender/bank’s representative shall also provide in said affidavit of regularity her/his position, length of service, training, educational background and a listing of the documents and financial records reviewed substantiating the review of the amounts owed. The affidavit should also include that she/he has personally reviewed both the mortgage and the note and any assignments for accuracy.

The plaintiff bears the burden of proof in a summary judgment proceeding and judgment will only be awarded when all doubt is removed as to the existence of any triable issue of fact. Under the present circumstances, where there have been numerous instances alleged as to “robo” signing of documents and a failure to attest to the accuracy of documents in mortgage foreclosure proceedings, the plaintiff must prove its entitlement to foreclose on a mortgage as a matter of law by establishing the regularity and accuracy of the financial documentary evidence submitted and the Court will be scrutinizing all documents for accuracy.

The foregoing constitutes the decision of the Court.

SEE ALL 127  Below…


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



Posted in STOP FORECLOSURE FRAUDComments (13)

Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook

Full Deposition of Residential Funding/GMAC JUDY FABER: US BANK v. Cook


Make sure you read this carefully…This is a transcript of an employee of Residential Funding Company who is in charge of record keeping of original documents. Don’t miss the full deposition down below.

Follow the assets, don’t get lost in the trail…

17 Q. Now, when you said you’re the Director of
18 Records Management for the Minnesota office?

19 A. Uh-huh.

20 Q. Are there other offices of Residential
21 Funding that maintain records that you are
22 not responsible for?

23 A. There are records services sites in Iowa and
24 in Pennsylvania. Those deal mostly with the
25 GMAC mortgage assets.

<snip>

11 Q. And what, if anything, is your responsibility
12 with regard to those records?

13 A. To track the physical paper for those
14 assets — or that asset.

15 Q. Are you what you consider to be the keeper of
16 the records for those documents?

17 A. Sure, yep.

5 Q. Okay. And then when somebody wants to view
6 specific records from your system, is that
7 something that you’re responsible for
8 obtaining as part of your day-to-day
9 responsibilities?

10 A. The people that report to me, yes, or the
11 vendor that — that we have retained to do
12 those functions, yes. I don’t do that
13 myself.

14 Q. Who’s the vendor that you retain to do that?

15 A. A company called ACS.

16 Q. ACS?

17 A. Yep.

18 Q. And what does ACS do with regard to the
19 records?

20 A. They fulfill the request. So if somebody
21 needs a credit folder or a legal folder, they
22 research where those documents are, obtain
23 the documents and then provide that requestor
24 with either the paper documents or images.

<snip>

21 Q. There’s a file folder that shows it came from
22 the outside vendor?

23 A. Yes. Their sticker is affixed to the front
24 of the folder, so I know it came from them.

25 Q. Okay. And then is there anything on the
1 documents themselves that show where they
2 came from?

3 A. No.

4 Q. And by the outside vendor, do you mean ACS?

5 A. No. Actually, the vendor that stores the
6 actual folder is Iron Mountain.

7 Q. So there’s a sticker on that file that shows
8 it came from Iron Mountain?

9 A. Correct, yes.

10 Q. Does Iron Mountain maintain your system or do
11 they just maintain hard copies of documents?

12 A. They maintain the hard copies of the
13 documents.

14 Q. Not any records on your computer system,
15 correct?

16 A. No.

17 Q. Is that correct?

18 A. Correct.

<snip>

18 Q. What’s the relationship between Residential
19 Funding Company, LLC and U.S. Bank National
20 Association?

21 A. In — in this instance, U.S. Bank is the
22 trustee on the security that this loan is in.
23 And RFC was the issuer of the security that
24 was created.

25 Q. Who was the issuer of the security?

1 A. RFC was the issuer of the security.

2 Q. Oh, RFC is what you call Residential Funding
3 Company?

4 A. Yes.

5 Q. So RFC issued the security?

6 A. Right.

7 Q. Can you explain to me what that means?

8 A. No, I can’t.

9 Q. Okay. How do you know RFC issued the
10 security?

11 A. It’s the normal course of business as to how
12 our — our business works. RFC is in the
13 business of acquiring assets and putting them
14 together into securities to sell in the — in
15 the market.

16 MR. SHAW: I would like to
17 register a general objection to this line of
18 questioning. There’s not been a foundation
19 laid for Judy Faber being competent to reach
20 some of these conclusions that are being
21 stated on the record.

22 BY MR. HOLLANDER:
23 Q. So in this particular instance, do you have
24 any personal knowledge of the relationship
25 between RFC and U.S. Bank National
1 Association as trustee?

2 A. No.

3 Q. For whom is U.S. Bank National Association
4 acting as the trustee?

5 A. I believe it would be for the investors of
6 the — that have bought the securities.

7 Q. I’m sorry. Something happened with the phone
8 and I didn’t hear your answer. I’m sorry.

9 A. I believe it would be for the different
10 investors who have bought pieces of that
11 security that was issued.

12 Q. Are there different investors that have
13 purchased the Peter Cook note?

14 A. I don’t think I’m qualified to answer that.
15 You know, I can tell you from what my basic
16 understanding is from the process, but I’m
17 not an expert.

18 MR. SHAW: Once again, I’d like to
19 raise a continuing general objection that she
20 being — testifying with respect to what her
21 job is, and I believe you’re getting into
22 areas that is other than what her job is and
23 you’re asking for possibly even legal
24 conclusions here. So I would like to raise
25 that objection again.

[…]

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



Posted in assignment of mortgage, bifurcate, conspiracy, deposition, foreclosure, foreclosure fraud, foreclosures, GMAC, mbs, securitization, STOP FORECLOSURE FRAUD, trade secrets, trustee, Trusts, us bankComments (2)

Follow the Trail —Don’t get lost in the documents

Follow the Trail —Don’t get lost in the documents


Posted on March 25, 2010 by Neil Garfield

I THOUGHT THIS COMMENT WAS WORTHY OF MAKING INTO A POST.

See for Deutsch bank references Prospectus offered all over the world: Anyone who had a Deed of Trust with: Indymac, Wells Fargo, Countrywide, GMAC, Ocwen, American Home, Residential Funding Company, Washington Mutual Bank, BofA, and many others you might want to check this link out.

Editor’s Note: The only thing I would add is that the obligation arose when the borrower executed a note, but the creditor got a securitized bond with different terms, deriving its value from your note and thousands of others. Once you realize that the obligation is NOT the same as the Note, which is only EVIDENCE of the obligation, and that the MORTGAGE is NOT the obligation, it is only incident to the note, THEN you will understand that following the money means following the obligation, not the note or the mortgage. And figuring out what effect there was on the obligation at each step that the note was transferred, bought or paid, is the key to understanding whether the note became a negotiable instrument, and if it did, if it retained that status as a negotiable instrument.

FROM Jan van Eck
dutchman4753@gmail.com

to foreclosurefight:

What you are missing in your attempt to analyze this is that you are trying to follow the “mortgage,” not the Note. the reason you are doing this is that only the “mortgage,” as the Security Instrument, is being recorded on the land records – so it is all you get to see.

the reason your adversaries, whoever they really are, “withdrew” from the relief from Stay Motion in the BK Court is that they do not have the Note. Somebody else does. And you have no clue as to who that is.

You have to start by determining what has happened to the Note, and how the Indorsements on the Note flow. And you have not seen the Note, not in years, so the raw truth is that you have no clue.

the “mortgage” never went into any “Trust.” Mortgages do not go into trusts. Only the Note (“maybe”) went into a trust – and only if it had proper Indorsement. Since Deutsche is involved, you can safely bet that it did not. Deutsche is NOTORIOUS for perpetrating fraud on the Courts and by fabricating documents. You may assume that EVERYTHING that Deutsche shows up with is a fraud, and has been fraudulently fabricated, typically in their offices on Liberty Street in Downtown Manhattan NY.

What is missing in your convoluted chain of title is that there was a ton of other parties involved in setting up that “Trust”, including some Delaware sham entity known as the “Depositor,” and then another sham known as the “Seller,” and more. When you burrow through that Prospectus you will find those entities listed. Now you have to dig out the Note, and find if those entities are individually and sequentially listed on the Note by consecutive Indorsements. Since Deutsche had their sticky fingers in the pie, you already know that they did not.

What State are you in? Yes, you need new counsel. You should never have gotten into this with old counsel.

You can still defeat them, but you probably will have to go file in District (Federal ) Court. You will have to sue Deutsche. Think in terms of suing them in the USDC for the Sou.Distr. NY, in White Plains, NY. Now you are not tangled up in the State-Fed politics of your local judges.

You cannot ask for Quiet title as you are asking for that in the State Court. You have to go in with entirely new grounds or they will not hear your case. So you sue them for fraud in interstate commerce. Try the “Commerce Clause” in the US Constitution (Amendment 16? I forget), to try to get “jurisdiction.” You get “venue” easily as Deutsche Bank is in NY. You do not need to show up; you just file and do your papers by mail. If yo ask for enough money, e.g. 40 million, then DB has something to start worrying about.

Right now, DB has no downside. If they lose, all they lose is some paper on some worthless piece of property in some state that is flooded with empty foreclosed houses that nobody can sell. So what do they care? DB probably does not even know or care that your lawsuit is going on; you are just dealing with lawyers that are running up their tab with DB, and DB has so many tabs that they do not try to keep track of it all. So you have to expose them to some serious hurt. A gigantic lawsuit is a good place to start.

You may assume that everything DB and those attys produce is utterly fraudulent. I have seen documents produced where the entire Trust Agreement was fabricated, and notarized by a notary who did not even get his first commission until two years after he swore that the parties were standing in front of him. Welcome to Wall Street banks – the international predator banks.

Besides Deutsche, Credit Suisse is also notorious for this type of flagrant fraud upon our Courts.

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