Summary Judgment | FORECLOSURE FRAUD | by DinSFLA

Tag Archive | "summary judgment"

Computer Forensic Advances Raise Complex Issues

Computer Forensic Advances Raise Complex Issues


via: Alina

e-discovery is a must. Everything was transmitted electronically. An electronic database where its members “shake hands” to make transfers. Preservation letters must be sent out to the foreclosing entities. Most states have stringent spoliation laws. If evidence is destroyed, it goes against the entity doing the destroying.

Law.Com-

Advanced forensic ability leads to advanced law enforcement capability. That’s not a particularly insightful theorem but, nevertheless, an accurate one.

Probably no forensic realm has seen a more expansive increase in capabilities than the analysis of digital devices, and this reality was brought home in what were certainly the two most prominent trials of 2011 — State of Florida v. Casey Anthony and People of the State of California v. Conrad Murray. In both cases, the timelines generated by digital forensic evidence played significant roles in the prosecutions’ respective attempts to prove guilt.

FORENSIC TIMELINE ANALYSIS …

In the Conrad Murray case, a recording of a cell phone conversation between Michael Jackson and the defendant stored on the latter’s phone was introduced into evidence, which forensic testimony demonstrated occurred six weeks prior to Jackson’s death. Jackson’s obviously slurred and …

[LAW.COM]

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Re-POST: E-Discovery …Electronic Registration Systems WORST NIGHTMARE!

Re-POST: E-Discovery …Electronic Registration Systems WORST NIGHTMARE!


Via: Discovery Tactics aka Anthony Martinez & Assoc.

Latest Electronically Stored Information (ESI) Cases

I’ve been harping on the importance of demanding and acessing ESI from foreclosing parties for quite some time now.  A properly made ESI discovery request will provide numerous “smoking gun” documents that are sure to place the opposing party in a uncomfortable position.  Below I’ve identifed some of the most recent and more important cases that involve ESI.

—————————————————-

Court Grants Defendant’s Motion for Entry of Clawback Provision

Rajala v. McGuire Woods LLP, 2010 WL 2649582 (D. Kan. July 22, 2010) Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims. The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the…

Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve

Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010) Finding “willful” spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary…

Judge Scheindlin Amends Recent Pension Opinion

On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC. The order provides important clarification regarding the scope of a party’s obligation…

Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve

Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) In this case, the court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records…

Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems

GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A & M Fla. Props. II, LLC), 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010) Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in…

Court Rules Communications with Attorney Using Work Computer are Protected as Privileged

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010) In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received…

Despite Malaysian Blocking Statute, Court Compels Third Party’s Production of Foreign Banking Information Pursuant to Subpoena

Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency…

Court Provides Detailed Analysis of Law of Spoliation, Orders Adverse Inference Instruction, Monetary Sanctions for Intentional Spoliation of ESI

Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010) For intentional spoliation, the court declined to order terminating sanctions but ordered an adverse inference instruction and for defendants to pay plaintiff’s attorneys fees and costs….

Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010) In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost”…

“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion

Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan…

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009) Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of…

Swiss Government Says It Would Seize UBS Data Sought by U.S.

Bloomberg.com, July 8, 2009 By David Voreacos and Mort Lucoff July 8 (Bloomberg) — Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American…

Finding Defendants’ Behavior “a Textbook Case of Discovery Abuse,” Court Orders $1,022,700 in Monetary Sanctions

Kipperman v. Onex Corp., 2009 WL 1473708 (N.D. Ga. May 27, 2009) In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought…

Court Declines to Compel Production of Documents from Foreign Jurisdiction upon Finding a Lack of Personal Jurisdiction and where Certain Documents are Protected from Production by Israeli Law

Linde v. Arab Bank, PLC, 2009 WL 1456573 (E.D.N.Y. May 22, 2009) In this case, defendant Arab Bank moved to compel production of documents, pursuant to subpoena, by non-parties Israel Discount Bank, Ltd. (“IDB”), its indirect, wholly –owned subsidiary, Israel…

Granting Motion to Compel, Court Orders Appointment of Independent Expert “to Retrieve any Deleted Responsive Files from Defendants’ Computers”

Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009) In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely…

Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code…

Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created…

Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication) In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions…

Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor

In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008) In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of…

No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations

In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008) In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for…

Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test

Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) In this wage and hour employment case, plaintiff sought documents about class members’ employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files. Rite…

Inadequate Preservation Efforts Necessitate Restoration and Production of Email from Backup Tapes, and Forensic Search of CEO’s Laptop

Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008) In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a “smear campaign” that destroyed plaintiff’s career as a securities analyst. He asserted…

Magistrate Judge Sets Protocol for Plaintiff’s Forensic Examination of Former Employee’s Computer and Requests Affidavit from Expert Explaining Certain Issues

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008) In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired. Defendant explained that another Equity employee had…

Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court

On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5.2,…

The Biggest Data Disaster Ever

From The Red Tape Chronicles, Posted: Friday, November 30 at 05:15 am CT by Bob Sullivan: “It’s being called the worst data leak of the information age. Earlier this month, U.K. officials had to admit they’d lost hard drives containing…

Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine

Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007) Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”). Under the contract at issue, BI…

Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions

In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007) In this opinion, Magistrate Judge Andrew J. Peck granted plaintiffs’ motion for sanctions in the form of an adverse inference instruction and awarded plaintiffs their costs and…

Court Allows Plaintiffs to Conduct Expedited Discovery Regarding Possible Spoliation

Roberts v. Canadian Pac. R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007) In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis….

Condemning Defendant’s Gamesmanship, Court Orders Production of Database

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL 3803152 (S.D. Ohio Nov. 14, 2006) In this case involving UCC claims stemming from defendant’s internet-based check service, defendant disputed that it did sufficient business with Ohio residents to subject it…

Court Grants Plaintiff Access to Defendant’s Database

Bianchi v. The Bureaus, Inc., 2006 WL 3802758 (N.D. Ill. Nov. 1, 2006) In this brief order, the court granted plaintiff’s motion to allow her computer expert access a database maintained by defendant, for the purpose of determining whether the…

Citing Conference of Chief Justices’ Guidelines to State Courts, North Carolina Court Refuses to Compel Nonparty to Produce Deleted Emails from Backup Tapes

Bank of America Corp. v. SR Int’l Bus. Ins. Co., Ltd., 2006 WL 3093174, 2006 NCBC 15 (N.C. Super. Nov. 1, 2006) In its introductory remarks, the court advised: This opinion should be read in conjunction with the opinion in…

North Carolina Court Orders Production of Email from Backup Tapes; Parties to Share Restoration Costs Equally

Analog Devices, Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1, 2006) (Unpublished) In this misappropriation of trade secrets case, defendants moved to compel the production of emails of the originators of the trade secrets at issue relating to…

North Carolina Court Relies on Conference of Chief Justices’ Guidelines in Two Decisions Involving the Production of Email from Backup Tapes

These two opinions, both filed on November 1, 2006, discuss for the first time the extent to which inaccessible electronic data is discoverable and who should pay for its production under the North Carolina Rules of Civil Procedure. Bank of…

$1.888 Million Judgment Entered in Favor of Bankruptcy Trustee Based on Adverse Party’s Spoliation of Financial Records

In re Quintus Corp., 353 B.R. 77 (Bankr. D. Del. 2006) Avaya, Inc. purchased the assets of the debtors in bankruptcy, and agreed to assume certain of the debtors’ liabilities. Thereafter, the trustee filed an adversary complaint against Avaya asserting…

Failure to Conduct Reasonable Investigation for Responsive Documents and Other Discovery Abuses Warrant Adverse Inference Instruction

3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006) In this patent infringement litigation, the district court judge affirmed the magistrate’s report and recommendation that plaintiff’s motion for sanctions against the defendant be granted…

Party Not Entitled to Shift Costs of Restoring Emails that were Converted to Inaccessible Format After Duty to Preserve was Triggered

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Like the plaintiff in the Zubulake v. UBS Warburg LLC, the plaintiff in this case was a highly-paid investment banker who accused her employer of gender discrimination and illegal…

Crime-Fraud Exception to Attorney-Client Privilege Invoked to Allow Testimony and Production of Notes by Attorney, Where Executive’s Deletion of Email Sought by Grand Jury Could Constitute Obstruction of Justice

In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006) This opinion relates to an ongoing grand jury investigation of suspected federal criminal activity; because of the secrecy of the proceeding, the court’s opinion lacks specific details. The grand…

Second Circuit Reverses Frank Quattrone Conviction for Obstruction of Justice and Witness Tampering

In 2000, Credit Suisse First Boston Corporation (“CSFB”) employed Frank Quattrone as head of its Global Technology Group (the “Tech Group”). In that capacity, Quattrone managed approximately 400 technology investment bankers from the firm’s Palo Alto, California office. The Tech…

Florida Court Affirms $75,000 Coercive Civil Contempt Sanction Against Defendants For Prolonged Discovery Abuse

Channel Components, Inc. v. Am. II Electronics, Inc., 915 So. 2d 1278 (Fla. Dist. Ct. App. 2005) In this case alleging tortious interference and related claims against two former employees, the plaintiff sought intervention by the court several times in…

Defendant Sanctioned for Negligent Failure to Institute and Communicate Legal Hold

In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005) In this opinion, the District Court adopted in full the Magistrate’s Report and Recommendation regarding plaintiffs’ motion for sanctions based upon the defendant’s failure…

Bank of America Corporation Ordered to Provide Discovery on Behalf of Non-Party Wholly-Owned Subsidiaries

In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005) In this class action, plaintiffs propounded requests for production of documents and a request for admissions to all named defendants, including Bank of America Corporation (“BAC”)….

Despite Evidence of Intentional and Negligent Concealment, Bankruptcy Court Dismisses Trustee’s Spoliation of Evidence Counterclaims Because No Injury Was Shown

In re Tri-State Armored Services, Inc., 332 B.R. 690 (Bankr. D.N.J. 2005) Insurance company brought adversary proceeding against Chapter 7 trustee, seeking either equitable rescission of employee dishonesty, crime, and disappearance insurance policies issued to debtor armored car company, or…

Court Orders Production of Home Office Backup Tape Created in Connection with CFTC Receivership

Commodity Futures Trading Commission v. Equity Financial Group, LLC, et al., 2005 WL 2205789 (D.N.J. Sept. 9, 2005) In April 2004, the U.S. Commodity Futures Trading Commission (“CFTC”) filed an enforcement action against Equity Financial Group, LLC (“Equity”) and others…

UBS Securities to Pay $2.1 Million in Penalties and Fines for Failure to Preserve Email

On July 13, 2005 the Securities and Exchange Commission (“Commission”) issued an Order in connection with the alleged failure of UBS Securities LLC (“UBS”) to preserve email. The Commission accepted an Offer of Settlement and UBS consented to entry of…

Spoliation Instruction Appropriate where Defendants Failed to Preserve Email

Arndt v. First Union Nat’l Bank, 613 S.E.2d 274 (N.C. Ct.App. 2005) Donald Arndt (“Arndt”) was hired by First Union National Bank (“First Union”) in June 1996 with an initial salary of $90,000 per year and a guaranteed minimum incentive…

Seventh Circuit Reverses Sanction Requiring Production of Documents Listed on Privilege Log

American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of the United States, 406 F.3d 867 (7th Cir. 2005) American National Bank and Trust Co. of Chicago, as Trustee f/b/o Emerald Investments LP, and Emerald Investments…

Privilege Not Necessarily Waived Where Email Between Employee and Personal Attorney Maintained on Corporate Email System

In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005) Asia Global Crossing, Ltd. and Asia Global Crossing Development Co. (collectively “Asia Global”) were pan-Asian telecommunication carriers which filed for bankruptcy under Chapter 11 on November 17, 2002. Asia…

Magistrate Recommends Adverse Inference Instruction and Monetary Sanctions for Failure to Preserve Hard Drives, Audio Recordings and Email

E*Trade Securities LLC v. Deutsche Bank AG, et al., Civil No. 02-3711 RHK/AJB and Civil No. 02-3682 RHK/AJB (D. Minn. Feb. 17, 2005) United States Magistrate Judge Arthur J. Boylan filed a Report and Recommendation regarding several electronic discovery disputes…

Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents

Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004) Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged…

Court Precludes Offering of Evidence as Sanction for Discovery Evasion

In re LTV Steel Co., Inc., 307 B.R. 37 (N.D. Ohio 2004) In bankruptcy proceeding, a creditor (“C&K”) submitted a claim for $1.9 million against the estate, a portion of which the debtor agreed was due. When the debtor sought…

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U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment

U.S. Bank N.A. v Mollah | NYSC Denies Wells Fargo s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Records Summary Judgment


NEW YORK SUPREME COURT – QUEENS COUNTY

U.S. BANK N.A.,
Plaintiff,

-against-

MOHAMMED MOLLAH, et al.,
Defendants.

Excerpt:
Defendant, Wells Fargo Home Mortgage s/h/a Mortgage Electronic Registration Systems, Inc. As Nominee and Mortgagee of Record’s motion for an order pursuant to RPAPL 1521 granting summary judgment on its twenty-second affirmative defense that said defendant’s lien is superior to plaintiffs by virtue of the fact that said defendant’s lien is recorded prior to plaintiffs is hereby denied.

[ipaper docId=76193823 access_key=key-9vtffm9a40zflgd2ztx height=600 width=600 /]

 

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Foreclosure Ruling Irks Banks

Foreclosure Ruling Irks Banks


Since they can’t find someone with real knowledge, they probably are stuck because the majority of the originating companies are long gone and so are the employees…just as planned.

Palm Beach Post-

WEST PALM BEACH — An appeals court ruling in favor of Wellington homeowners in foreclosure is causing “calamitous confusion,” according to bank attorneys who say it could snarl hundreds of thousands of pending foreclosure cases.

The bank is asking for a rehearing and clarification of the Sept. 7 decision by the 4th District Court of Appeal, which said a foreclosure affidavit submitted by a bank employee was hearsay because the person relied on computerized information and did not have personal knowledge of the case.

The lack of personal knowledge of foreclosure documents is the foundation of the robo-signing controversy that continues to delay foreclosure proceedings.

The bank is not challenging the court’s decision in Gary and Anita Glarum vs. LaSalle Bank, but it said the ruling has been misinterpreted to mean that the person relying on computerized records must be the one who actually entered them into the computer or the direct custodian of the record.

[PALM BEACH POST]

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GLARUM v. LASALLE BANK | FL 4DCA Reverses SJ “Home Loan Services Inc.’s Ralph Orsini Affidavit Fail”

GLARUM v. LASALLE BANK | FL 4DCA Reverses SJ “Home Loan Services Inc.’s Ralph Orsini Affidavit Fail”


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

July Term 2011

GARY GLARUM and ANITA GLARUM,
Appellants,

v.

LASALLE BANK NATIONAL ASSOCIATION, as Trustee for
Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-FFI, FIRST WELLINGTON, INC., a dissolved
corporation, WELLINGTON SHORES HOMEOWNERS ASSOCIATION,
GREENVIEW SHORES NO.2 AT WELLINGTON HOMEOWNERS
ASSOCIATION, GREENVIEW SHORES HOMEOWNERS ASSOCIATION,
FIRST FRANKLIN FINANCIAL CORPORATION, and any unknown
heirs, devisees, grantees, creditors, and other unknown persons or
unknown spouses claiming by, through and under any of the abovenamed
parties,
Appellees.

No. 4D10-1372

[September 7, 2011]

PER CURIAM.

This appeal presents two issues. First, we consider whether the trial
court improperly granted a summary judgment of foreclosure in favor of
LaSalle Bank. We also consider whether the trial court erred in
sanctioning appellants’ counsel for filing frivolous pleadings pursuant to
section 57.105, Florida Statutes. We reverse the trial court’s entry of
summary judgment in favor of LaSalle in part, as LaSalle’s summary
judgment evidence was insufficient to establish the amount due to
LaSalle under the note and mortgage. We likewise reverse the entry of
sanctions against appellants’ counsel as improper. However, we find no
merit in appellants’ contention that LaSalle lacked standing to seek
foreclosure.

Appellants admitted in their answer that they had not made payments
according to the terms of the note, and as such, they were in default.
Appellants, however, denied LaSalle’s allegations regarding the amount
of the default. To establish the amount of appellants’ indebtedness for
summary judgment, LaSalle filed the affidavit of Ralph Orsini, a “specialist”
at the loan servicer, Home Loan Services, Inc. Orsini claimed
in the affidavit that appellants were in default of their payment
obligations and owed in excess of $340,000 on the note. In opposition to
the motion for summary judgment, appellants filed Orsini’s deposition,
wherein Orsini explained that he derived the $340,000 figure from his
company’s computer system. However, Orsini did not know who entered
the data into the computer, and he could not verify that the entries were
correct at the time they were made. To calculate appellants’ payment
history, Orsini relied in part on data retrieved from Litton Loan Servicing,
a prior servicer of appellants’ loan.

Florida Rule of Civil Procedure 1.510(c) requires a party moving for
summary judgment to “identify any affidavits, answers to interrogatories,
admissions, depositions, and other materials as would be admissible in
evidence.” If this evidence, taken in the light most favorable to the nonmoving
party, shows no genuine issue of material fact, the moving party
is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at
Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).

We find that Orsini’s affidavit constituted inadmissible hearsay and,
as such, could not support LaSalle’s motion for summary judgment.
Pursuant to section 90.803(6)(a), Florida Statutes, documentary evidence
may be admitted into evidence as business records if the proponent of
the evidence demonstrates the following through a record’s custodian:
(1) the record was made at or near the time of the event; (2)
was made by or from information transmitted by a person
with knowledge; (3) was kept in the ordinary course of a
regularly conducted business activity; and (4) that it was a
regular practice of that business to make such a record.
Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).

Orsini did not know who, how, or when the data entries were made
into Home Loan Services’s computer system. He could not state if the
records were made in the regular course of business. He relied on data
supplied by Litton Loan Servicing, with whose procedures he was even
less familiar. Orsini could state that the data in the affidavit was
accurate only insofar as it replicated the numbers derived from the
company’s computer system. Despite Orsini’s intimate knowledge of how
his company’s computer system works, he had no knowledge of how that
data was produced, and he was not competent to authenticate that data.
Accordingly, Orsini’s statements could not be admitted under section
90.803(6)(a), and the affidavit of indebtedness constituted inadmissible
hearsay. Because LaSalle presented no competent evidence to show
$422,677.85 in damages, the amount of the judgment to which LaSalle is
entitled remains at issue. Therefore, we reverse the entry of judgment in
favor of LaSalle and remand for further proceedings.

The trial court also entered sanctions against appellants’ counsel for
filing a “form affidavit” from an expert, Rita Lord, who opined on the
ability of lay persons to distinguish between original and high-quality
copies of promissory notes. Lord did not represent in the affidavit that
she reviewed the papers at issue in this case. Nevertheless, the trial
court was distressed by appellants’ counsel’s habit of filing “the same
affidavit in ten different cases, when [Lord] hasn’t seen the documents in
this case.” The court awarded LaSalle its reasonable attorney’s fees for
having to file a motion to strike Lord’s affidavit.

We note that LaSalle moved for sanctions under section 57.105,
Florida Statutes. That statute permits a trial court to award a
“reasonable attorney’s fee” to the “prevailing party” where the plaintiff’s
claim was frivolous or to a party to compensate for the opposing party’s
dilatory conduct. § 57.105(1)-(2), Fla. Stat. The trial court did not find
that appellants’ claims were frivolous, a n d th e trial court did not
conclude that Lord’s affidavit was filed to cause unreasonable delay.
Thus, section 57.105 could not serve as a basis for the award of
attorney’s fees to LaSalle.

To the extent that the trial court may have been exercising its
inherent authority to sanction parties or their attorneys, we also find
error. “[A] trial court possesses the inherent authority to impose
attorneys’ fees against an attorney for bad faith conduct.” Moakley v.
Smallwood, 826 So. 2d 221, 226 (Fla. 2002). To impose attorney’s fees
as a sanction under its inherent authority, the trial court must make an
“express finding of bad faith conduct” that is “supported by detailed
factual findings describing the specific acts of bad faith conduct that
resulted in the unnecessary incurrence of attorneys’ fees.” Id. at 227.
The trial court did not make any specific findings of bad faith on the
record, and the sanctions order must be reversed without prejudice. See
Finol v. Finol, 912 So. 2d 627, 629 (Fla. 4th DCA 2005). “Upon remand,
should the court be asked to reconsider the issue, any future hearing
and order must comply with the requirements of Moakley.” Id.

In summary, we reverse the judgment of foreclosure and the entry of
sanctions against appellants’ counsel a n d remand for further
proceedings consistent with this opinion.

Reversed and remanded.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.

* * *

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. CA08-028930 AW.

Thomas Ice of Ice legal, P.A., Royal Palm Beach, for appellant.

Thomasina F. Moore and Dennis W. Moore of Butler & Hosch, P.A.,
Orlando, for appellee LaSalle Bank National Association.

Not final until disposition of timely filed motion for rehearing

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

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


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

JULY TERM 2011

DIANNE MORRISON AND
MICHAEL HERBERT,
Appellants,

v.

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

Case No. 5D10-556

________________________________/
Opinion filed July 29, 2011

Appeal from the Circuit Court
for Seminole County,

Alan A. Dickey, Judge.

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

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

PER CURIAM.

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

REVERSED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

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FL 2DCA Reverses SJ “acceleration letter failed to state the default as required by the mortgage terms” | KONSULIAN v. BUSEY BANK, NA

FL 2DCA Reverses SJ “acceleration letter failed to state the default as required by the mortgage terms” | KONSULIAN v. BUSEY BANK, NA


SARKIS KONSULIAN, Appellant,
v.
BUSEY BANK, N.A. AS SUCCESSOR IN INTEREST BY ACQUISITION OF TARPON COAST NATIONAL BANK, Appellee.

Case No. 2D10-2163.

District Court of Appeal of Florida, Second District.

Opinion filed June 1, 2011.

Gregg Horowitz, Sarasota, for Appellant.

Mark A. Horowitz of Warchol, Merchant & Rollings, LLP, Cape Coral, for Appellee.

BLACK, Judge.

Sarkis Konsulian appeals the trial court’s order granting summary judgment in favor of Busey Bank (“Busey”). On appeal, Konsulian argues that Busey failed to meet a condition precedent to the filing of the complaint. Specifically, Konsulian asserts that Busey filed suit prematurely, giving Konsulian incomplete and inadequate notice and opportunity to cure. In addition to being prematurely filed, Konsulian claims that the acceleration letter failed to state the default as required by the mortgage terms. We agree and reverse. Because our ruling is based on the conditions precedent issue, we do not reach the issue of the accuracy of the damages calculation as challenged in Konsulian’s affidavit.

On October 6, 2008, Busey sent a preacceleration letter to Konsulian. On October 9, 2008, only three days later, the bank filed a mortgage foreclosure action against Konsulian. However, pursuant to paragraph twenty-two of the mortgage, Busey was required to give Konsulian thirty days notice prior to filing suit. Paragraph twenty-two of Konsulian’s mortgage provides as follows:

22. Acceleration; Remedies. Lenders shall give notice to the Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than thirty (30) days from the date the notice is given to Borrower, by which the default must be cured; and, (d) that the failure to cure the default on or before the date specified in the notice may result in an acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceedings the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, a Lender, at its option, may require immediate payment in full of all sums secured by this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to all attorneys’ fees and costs of title evidence.

Konsulian appropriately raised both the timeliness argument and the sufficiency of the acceleration letter argument in his affirmative defenses. In addition, Konsulian filed an affidavit in opposition to the summary judgment motion contesting the amounts claimed by Busey. Konsulian challenged the interest and late fee calculation, as well as whether all payments were credited. At the time of the summary judgment hearing, the affirmative defenses were still viable.

On April 19, 2010, the trial court entered final judgment of foreclosure, which resulted in the sale of the property to Busey. The final judgment does not address the merits or disposition of Konsulian’s defenses.

Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The standard of review for an order granting summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). When reviewing a ruling on summary judgment, an appellate court must examine the record in the light most favorable to the nonmoving party. See Suarez v. City of Tampa, 987 So. 2d 681, 682-83 (Fla. 2d DCA 2008)Garden St. Iron & Metal, Inc. v. Tanner, 789 So. 2d 1148, 1149 (Fla. 2d DCA 2001)). “The party moving for summary judgment has the burden of showing the nonexistence of [a] genuine issue of material fact.” Richardson v. Wal-Mark Contracting Group, LLC, 814 So. 2d 534, 535 (Fla. 2d DCA 2002) (citing Holl v. Talcott, 191 So. 2d 40, 43-44 (Fla. 1966)). A summary judgment must not only establish that no genuine issues of material fact exist as to the parties’ claims, but it also must either factually refute the affirmative defenses or establish that they are legally insufficient. Moroni v. Household Fin. Corp. III, 903 So. 2d 311, 312 (Fla. 2d DCA 2005). (citing

Here, nothing in Busey’s complaint, motion for summary judgment, or affidavits indicates that Busey gave Konsulian the notice which the mortgage required. The language in the mortgage is clear and unambiguous. The word “shall” in the mortgage created conditions precedent to foreclosure, which were not satisfied. See Frost v. Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009). Under Florida law, contracts are construed in accordance with their plain language, as bargained for by the parties. Auto-Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Further, Busey did not refute Konsulian’s defenses nor did it establish that Konsulian’s defenses were legally insufficient. Because Busey did not prove that it met the conditions precedent to filing for foreclosure, it failed to meet its burden, and it is not entitled to judgment as a matter of law.

Reversed and remanded.

CASANUEVA, C.J., and WHATLEY, J., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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In RE SHAW | Ohio BK Court Grants Debtor Summary Judgment, Awards $71,539.46 Against Green Tree

In RE SHAW | Ohio BK Court Grants Debtor Summary Judgment, Awards $71,539.46 Against Green Tree


In re: Richard E. and Mary Shaw, Chapter 7, Debtor(s).
Eric W. Goering, Trustee, Plaintiff,
v.
Green Tree Financial Services Corp. et al., Defendants.

Case No. 09-10277, Adv No. 10-1020.

United States Bankruptcy Court, S.D. Ohio, Western Division.


May 2, 2011.

John A. Schuh, Esq., Adam M. Schwartz, Esq., David Demers, Esq., David H. Yunghans, Esq., for Debtors.

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT

BURTON PERLMAN, Bankruptcy Judge

In this adversary proceeding, arising in a chapter 7 bankruptcy case, Plaintiff Trustee seeks to avoid a first mortgage lien held by Green Tree Financial Services Corp. (“Green Tree”.)

Now before the Court is a Motion for Summary Judgment brought by Plaintiff, and a Cross Motion by Defendant Green Tree. Plaintiff’s Motion is supported by the Stipulation of Facts (Doc. 35), Plaintiff’s affidavit, and the claims register contained in Appendix No. 4. Green Tree’s cross motion also looks to the Stipulation of Facts and the Entry Confirming Sale and Ordering Deed and Distribution, entered by the Brown County Court of Common Pleas of Ohio with attachments, including a copy of the subject mortgage. The issues before the Court are 1) whether a certificate of acknowledgment which fails to recite the grantor’s name renders the mortgage avoidable; 2) whether the establishment of lis pendens within the 90-day preference period provides constructive notice of the mortgage to the Trustee; and 3) the effect of the sale of the property via the foreclosure process to Green Tree and Green Tree’s subsequent sale of the property to a third party.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K), (F) and (O).

Motions for summary judgment are governed by F.R.Civ.P. 56 which is incorporated into bankruptcy practice by F.R.B.P. 7056. That rule provides in part that a motion for summary judgment is to be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of showing that there is no issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). The nonmoving party, however, bears the ultimate burden of showing that a genuine issue of material fact exists. In doing so, the nonmoving party cannot rest on its pleadings, but must, in response, offer some evidence which demonstrates a genuine issue of material fact for trial. Id.

FACTS

The material facts are not in dispute. On January 13, 1999, Debtor Richard E. Shaw granted a mortgage on the subject property, 1719 Kress Road, Mt. Orab, Ohio, in favor of Green Tree. The certificate of acknowledgment on the mortgage is blank as to the grantor’s name. On December 9, 2008, Green Tree initiated a foreclosure action in state court on the property.

On January 21, 2009, the Debtor filed his bankruptcy petition. Green Tree then filed its Motion for Relief From Stay. On February 27, 2009, the clerk entered a default order granting Green Tree’s Motion for Relief From Stay. Green Tree did not seek an abandonment from the Trustee and the Trustee did not abandon the property[1] The Trustee was never added as a party to the state court foreclosure action.

On April 17, 2009, a judgment entry and decree in foreclosure was entered in the state court action. The property was appraised by the sheriff for $85,000.00. At the July 13, 2009 sheriff’s sale, Green Tree was the highest bidder, with a credit bid of $56,667.00. The foreclosure sale was confirmed on August 25, 2009. Soon thereafter, Green Tree sold the property to Jared Smith for $79,900.00. Green Tree received net proceeds of $71,539.46 from the subsequent sale of the property.

DISCUSSION

A. Mortgage Validity.

Included in the record before the Court is a copy of the mortgage document. The mortgage concludes with a signature by Debtor Richard E. Shaw and the names of two witnesses. Following this is an Acknowledgment, the printed form stating: “This instrument was acknowledged before me this”, followed by the date. The second line contains the word “by” followed by a blank. In the blank, the notary has stamped his name. The Acknowledgment concludes with the signature of the notary. Nowhere in the Acknowledgment does the name of either debtor appear.

The law is well-settled in this district that the failure to identify the grantor as an acknowledging party in the acknowledgment clause renders the mortgage defective and, therefore, avoidable under 11 U.S.C. § 544(a)(3). In re Nolan, 383 B.R. 391 (B.A.P. 6th Cir. 2008); Countrywide Home Loans, Inc. v. Spaeth, Case No. 3-10-CV-120 (S.D. Ohio entered July 8, 2010)(Rose, J.)(affirming In re Highland, Adv. No. 09-3006)(Bankr. S.D. Ohio entered January 27, 2010)(Walter, J.)); In re Burns, 2010 WL 3081338 (Bankr. S.D. Ohio 2010)(Humphrey, J.); In re Sauer, 417 B.R. 523 (Bankr. S.D. Ohio 2009)(Hoffman, J.). Therefore, the mortgage here in question is fatally defective, and is avoidable under 11 U.S.C. § 544(a)(3).

B. Lis Pendens.

Normally, the establishment of lis pendens prior to the petition filing date imparts constructive knowledge of a defective mortgage to the Trustee, therefore protecting a mortgage from avoidance under 11 U.S.C. § 544(a)(3). In re Periandri, 266 B.R. 651 (B.A.P. 6th Cir. 2001). However, if the establishment of lis pendens occurs within the 90-day preference period, then the mortgage may be avoided as a preferential transfer, provided the Trustee satisfies his burden of proof as to all elements of 11 U.S.C. § 547(b). In re Gruseck & Son, Inc., 385 B.R. 799 at *9 (B.A.P. 6th Cir. 2008). In the present case, the Plaintiff has established all six elements of a preferential transfer under § 547(b). Green Tree does not contest this position. Therefore, lis pendens is avoided and the defense fails.

C. Damages.

Pursuant to 11 U.S.C. § 550, to the extent that a transfer is avoided under either § 544 or § 547, the trustee may recover, for the benefit of the estate, either the property transferred or the value of the property from the initial transferee. In the present case, because the property was subsequently conveyed by the initial transferee, Green Tree, to a third party, Plaintiff is seeking to recover the value of the transferred property from Green Tree rather than the property itself. Plaintiff contends that the best measure of the value of the property is the sale price of the property from Green Tree to the third party purchaser. We agree. That value here is $71,539.46.

D. Remaining Defenses.

Green Tree contends that it no longer has any interest in the subject property. This may be true, but it is not a defense to an avoidance action. See 11 U.S.C. § 550 (trustee may recover the property or the value of the property). Citing In re Spaude, 112 B.R. 304 (Bankr. D. Minn. 1990), Green Tree contends that as a part of the state court foreclosure process, the state court “ordered” Green Tree to release its mortgage, and therefore, that there is no mortgage for Plaintiff to avoid. In re Spaude is distinguishable. In Spaude, the debtor wished to strip down a wholly unsecured second mortgage. The court held that because the property had been purchased by the second mortgage holder at the sheriff’s sale and the second mortgage holder was now the owner of the property, the debtor had lost his right to strip the mortgage under 11 U.S.C. § 506(d). In contrast to the instant action, Spaude did not involve an avoidance action by Trustee.

Green Tree also contends that the estate has no interest in the property. Specifically, Green Tree contends that since there were no proceeds to be distributed from the foreclosure sale, the property was effectively abandoned by the Plaintiff. Green Tree cites numerous cases for the proposition that if a foreclosure sale results in excess proceeds, the excess proceeds normally belong to the estate. While Green Tree has correctly cited the law, the cases cited do not support Green Tree’s position that a lack of proceeds from a foreclosure sale equates to an abandonment. Green Tree also asserts that because it obtained relief from the automatic stay, it was free to exercise its rights in the property free from any restrictions under 11 U.S.C. § 362(g). Again, Green Tree has correctly cited the law, but the cases cited do not support its position. The lifting of the stay under 11 U.S.C. § 362 does not equate to an abandonment of the property by Plaintiff under 11 U.S.C. § 544.

Lastly, Green Tree contends that its mortgage is insulated from avoidance because a defective mortgage is valid and enforceable between the bank and its borrower, absent fraud. That proposition may be valid in actions by a debtor, as demonstrated by the cases relied upon by Green Tree. The proposition does not hold true, however, where it is a trustee who raises the question in a § 547 action.

* * *

Accordingly, Plaintiff’s Motion for Summary Judgment is GRANTED. Green Tree’s Cross Motion for Summary Judgment is denied. Plaintiff is awarded a money judgment in the amount of $71, 539.46 against Green Tree.

IT IS SO ORDERED.

[1] This district has a streamlined procedure for obtaining an abandonment from a trustee. See Local Bankruptcy Rule 6007-1.

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DailyFinance | COURT: Busted Securitization Prevents Foreclosure

DailyFinance | COURT: Busted Securitization Prevents Foreclosure


On March 30, an Alabama judge issued a short, conclusory order that stopped foreclosure on the home of a beleaguered family, and also prevents the same bank in the case from trying to foreclose against that couple, ever again. This may not seem like big news — but upon review of the underlying documents, the extraordinarily important nature of the decision and the case becomes obvious.

No Securitization, No Foreclosure



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Ka-B°oO°M!!! Alabama Judge Denies Securitization Trustee Standing To Foreclose HORACE v. LaSALLE BANK NA

Ka-B°oO°M!!! Alabama Judge Denies Securitization Trustee Standing To Foreclose HORACE v. LaSALLE BANK NA


Attorney Nick Wooten does it again and again!

PHYLLIS HORACE

v.

LASALLE BANK NATIONAL
ASSOCIATION, et al

EXCERPT:

ORDERED, ADJUDGED, AND DECREED:

Following hearing and review of all submissions from the parties the Court has come to two conclusions necessary for the disposition of this case:

First, the Court is surprised to the point of astonishment that the defendant trust (LaSalle Bank National Association) did not comply with the terms of it’s own Pooling and Servicing Agreement and further did not comply with the New York Law in attempting to obtain assignment of plaintiff Horac’s note and mortgage.

Second, the plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement created by the defendant trust (Lasalle Bank National Association). Indeed without such Pooling and Servicing Agreements, plaintiff Horace and other mortgages similarly situated would never have been able to obtain financing.

[…]

Continue below…

[Full Docs]

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OHIO Appeals Court Reverses Judgment ‘Clerical Errors, Misstatement, Trial Court Entry Nullity’ LaSALLE BANK v. SCOLARO

OHIO Appeals Court Reverses Judgment ‘Clerical Errors, Misstatement, Trial Court Entry Nullity’ LaSALLE BANK v. SCOLARO


LASALLE BANK NATIONAL ASSOCIATION AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007-1, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-1, Appellee,

v.

JOSEPH M. SCOLARO, et al., Appellants.

C.A. No. 25084.

Court of Appeals of Ohio, Ninth District, Summit County.

March 16, 2011.

CARR, Judge.

{¶ 1} Appellant, Joseph Scolaro, appeals the judgment of the Summit County Court of Common Pleas. This Court reverses.

I.

{¶ 2} On July 18, 2008, LaSalle Bank National Association (hereinafter referred to as “LaSalle”), the original plaintiff, brought this action against Scolaro seeking money judgment against Scolaro based on a January 10, 2007 promissory note in the amount of $225,250.00 plus interest at a rate of 9.60 percent per year from February 1, 2008, plus court costs, advances, and other charges allowed by law. LaSalle also sought to foreclose upon Scolaro’s property based on the mortgage dated January 10, 2007. LaSalle also sued Judy E. Scolaro and the unknown spouse of Joseph Scolaro.

{¶ 3} The parties subsequently participated in resolution and settlement conferences. On April 16, 2009, Joseph Scolaro filed an answer in which he asserted multiple affirmative defenses. The affirmative defenses alleged LaSalle was not the proper party plaintiff, that LaSalle lacked standing, and that LaSalle failed to give proper and requisite notice to Scolaro prior to initiating foreclosure. On April 29, 2009, LaSalle filed a motion to substitute Bank of America, National Association (hereinafter referred to as “Bank of America”) as the plaintiff. This motion was granted by the trial court on April 30, 2009. On June 22, 2009, Bank of America filed a motion for summary judgment, along with an affidavit in support. On August 20, 2009, after being granted an extension of time, Joseph Scolaro filed a brief in opposition with supporting affidavit, as well as his own motion for summary judgment. On September 30, 2009, Bank of America filed a reply in support of its motion for summary judgment and a response to Joseph Scolaro’s motion for summary judgment. On that same day, Bank of America filed a motion for default judgment against Judy E. Scolaro and the unknown spouse of Joseph Scolaro.

{¶ 4} On October 9, 2009, the trial court entered a default judgment against Judy E. Scolaro and the unknown spouse. Also on October 9, 2009, the trial court granted summary judgment against Joseph Scolaro, finding that the substituted plaintiff, Bank of America, had filed a motion for summary judgment and Joseph Scolaro had filed no opposition to the motion. On November 6, 2009, Scolaro filed a notice of appeal.

{¶ 5} On January 28, 2010, Bank of America moved to stay the appeal and remand the matter to the trial court to correct what it described as a “clerical error” in the judgment entry from which the appeal was taken. Bank of America also requested leave to file a motion with the trial court to correct the omission of the motion for summary judgment from the record. On February 8, 2010, Scolaro responded in opposition, asking this Court to deny the portion of Bank of America’s motion requesting a remand to correct a clerical error in the judgment entry. Scolaro argued that the trial court’s finding that he had not filed a response to the motion for summary judgment was not a clerical error and, thus, could not be cured upon the filing of a Civ.R. 60(A) motion. On February 19, 2010, this Court granted the motion to stay the appellate proceedings and ordered the matter “remanded to the trial court for 30 days to rule on Bank of America’s anticipated Civ.R. 60(A) motion.” This Court’s journal entry specifically noted that the “stay and remand [would] automatically expire 30 days from the journalization of [the] order” and required that Bank of America move this Court to continue the stay if the trial court needed additional time to rule on the motion.

{¶ 6} On February 26, 2010, Bank of America filed with the trial court a “motion for an amended and restated judgment nunc pro tunc and revised transcript to correct clerical errors.” In its motion, Bank of America invoked Civ.R. 60(A) and requested that the trial court correct its statement in the October 9, 2009 journal entry that Scolaro had not filed an opposition in response to Bank of America’s motion for summary judgment. Bank of America also requested that the trial court correct the record which failed to reflect that Bank of America had filed a motion for summary judgment on June 22, 2009. Also filed on February 26, 2010, was the affidavit of Attorney April Brown, co-counsel for Bank of America. In the affidavit, Attorney Brown acknowledged that she had prepared a draft of the order granting summary judgment for the convenience of the trial court. Attorney Brown averred that in preparing this entry, she worked from a Summit County form she had previously used. Attorney Brown averred that she accidentally failed to delete the erroneous sentence from the foundational form which stated, “There has been no opposition filed in response to the *** Motion for Summary Judgment.” Attorney Brown averred that “[t]he inclusion of this sentence was accidental, and it did not reflect the procedural history of the case now before this Court.” On March 15, 2010, Joseph Scolaro filed a brief in opposition to Bank of America’s motion. In his brief, Scolaro argued that the aforementioned error in the judgment entry was not mistake or omission which was mechanical in nature and could not be corrected pursuant to Civ.R. 60(A). Scolaro also requested in his motion that the trial court vacate the order for sale of his property which has been issued on October 23, 2009.

{¶ 7} On March 19, 2010, Bank of America filed a motion to continue the stay with this Court. On March 22, 2010, the trial court issued an entry captioned “nunc pro tunc amended and restated judgment and decree in foreclosure and reformation of mortgage and deed.” In the nunc pro tunc entry, the trial court noted that Scolaro had filed an answer to the complaint as well as a memorandum and affidavit in opposition to Bank of America’s motion for summary judgment. The entry stated that “[a]fter due consideration of the submissions of the parties, the Court further finds that there is no genuine issue of material fact and that Bank of America is entitled to summary judgment as a matter of law.”

{¶ 8} On March 29, 2010, Bank of America filed with this Court a notice of correction of record and motion to lift stay. On April 6, 2010, this Court issued a journal entry granting Bank of America’s motion and allowing twenty days for Scolaro to either file a new merit brief or a notice of reliance upon his prior brief. On April 26, 2010, Scolaro filed a notice that he intended to rely on his prior brief.

{¶ 9} On appeal, Scolaro raises two assignments of error.

II.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE SUBSTITUTED PLAINTIFF BANK OF AMERICA, NATIONAL ASSOCIATION AS IT FAILED TO CONSIDER JOSEPH SCOLARO’S RESPONSE IN OPPOSITION TO THE SUBSTITUTED PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND INCORRECTLY FOUND THAT NO RESPONSE HAD BEEN FILED EVEN THOUGH A TIMELY RESPONSE AND AFFIDAVIT HAD BEEN FILED.”

{¶ 10} In his first assignment of error, Scolaro argues the trial court erred in granting summary judgment in favor of Bank of America because it failed to consider Scolaro’s response to the motion and found that no response had been filed. This Court agrees.

{¶ 11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.

{¶ 12} Pursuant to Civ.R. 56(C), summary judgment is proper if:
“(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{¶ 13} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party’s pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine triable issue” exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449.

{¶ 14} It is axiomatic that the non-moving party’s reciprocal burden does not arise until after the moving party has met its initial evidentiary burden. To do so, the moving party must set forth evidence of the limited types enumerated in Civ.R. 56(C), specifically, “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact[.]” Civ.R. 56(C) further provides that “[n]o evidence or stipulation may be considered except as stated in this rule.”

{¶ 15} On February 26, 2011, Bank of America filed a motion for an amended judgment pursuant to Civ.R. 60(A). In its motion, Bank of America noted the trial court’s original judgment entry incorrectly stated that Scolaro had not filed a brief in opposition to Bank of America’s motion for summary judgment. Bank of America characterized this error as a “misstatement” and argued that the “[t]he Judgment and Decree was not entered until several weeks after Bank of America filed its Reply to Scolaro’s Memorandum in Opposition to Bank of America’s Motion for Summary Judgment, thus affording this Court ample time to review and evaluate the parties’ arguments.” In an affidavit which was filed simultaneously to the Civ.R. 60(A) motion, counsel for Bank of America, April Brown, averred that she had prepared a draft of the judgment entry, but failed to delete the erroneous sentence.

{¶ 16} Civ.R. 60(A) states:
“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.”

Within the context of Civ.R. 60(A), a “clerical mistake” is “a type of mistake or omission mechanical in nature which is apparent on the record and which does not involve a legal decision or judgment by an attorney.” Paris v. Georgetown Homes, Inc. (1996), 113 Ohio App.3d 501, 503, quoting Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116, 118. The Tenth District has stated, “The decision whether a submitted entry accurately reflects a decision rendered by the court involves the exercise of discretion by the court, and therefore is not subject to correction under Civ.R. 60(A).” Dokari Invests., LLC v. DFG2, LLC, 10th Dist. No. 08AP-664, 2009-Ohio-1048, at ¶ 16.

{¶ 17} In this case, the trial court’s actions on remand went beyond the scope of merely correcting a clerical mistake in its original judgment entry. As noted above, once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence, the non-moving party has a reciprocal burden of responding by setting forth specific facts to demonstrate that a “genuine triable issue” exists to be litigated for trial. Tompkins, 75 Ohio St.3d at 449. Under this standard, the trial court’s erroneous finding in its October 9, 2009 judgment entry that Scolaro had not filed a response to Bank of America’s motion for summary judgment was not merely a mechanical error. Rather, it was a significant finding that was relevant in resolving the legal issue before the court. “A trial court may or may not sign prepared entries at its discretion.” State v. Sapp, 5th Dist. No. 07CA11, 2008-Ohio-5083, at ¶ 27. In exercising its discretion to sign the October 9, 2009 judgment entry, the trial court confirmed that the content of the entry accurately reflected the basis for its ruling. It follows that the erroneous finding that Scolaro had not filed a response to the motion for summary judgment was not subject to correction under Civ.R. 60(A). See Dokari at ¶ 16. By requesting that the trial court issue “an amended and restated judgment nunc pro tunc,” Bank of America was, in effect, asking the trial court to reconsider a final order. It is well-settled that “motions for reconsideration of a final judgment in the trial court are a nullity.” Price v. Carter Lumber Co., 9th Dist. No. 24991, 2010-Ohio-4328, at ¶ 11, quoting Pitts v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 378, paragraph one of the syllabus. This Court has stated that “any order granting such a motion is likewise a nullity.” State v. Keith, 9th Dist. No. 08CA009362, 2009-Ohio-76, at ¶ 8. Therefore, as the trial court’s judgment entry issued on March 22, 2010 was a nullity, this Court must look to the trial court’s October 9, 2009 judgment entry in reviewing Scolaro’s first assignment of error.

{¶ 18} Turning to the merits of Scolaro’s assignment of error, this Court concludes that the trial court’s judgment must be reversed. As discussed above, the trial court found that Bank of America’s motion for summary judgment was unopposed. The record indicates that Scolaro filed a brief in opposition to the motion for summary judgment, along with an affidavit in support, as well as a cross-motion for summary judgment, on August 20, 2009. Subsequently, on September 30, 2009, Bank of America filed a reply in support of its motion for summary judgment and a response to Joseph Scolaro’s motion for summary judgment. On remand, the trial court must make substantive determinations on the competing motions for summary judgment giving consideration to all relevant submissions by the parties.

{¶ 19} Scolaro’s first assignment of error is sustained.

ASSIGNMENT OF ERROR II

“THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY JUDGMENT TO THE SUBSTITUTED PLAINTIFF BANK OF AMERICA, NATIONAL ASSOCIATION AS THERE WERE GENUINE ISSUES OF MATERIAL FACT AND THE SUBSTITUTED PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT AS A MATTER OF LAW.”

{¶ 20} In his second assignment of error, Scolaro argues the trial court erred in granting summary judgment to Bank of America because there were genuine issues of material fact. Because our resolution of the first assignment of error is dispositive of this appeal, this Court declines to address the Scolaro’s second assignment of error as it is rendered moot. See App.R. 12(A)(1)(c).

III.

{¶ 21} Scolaro’s first assignment of error is sustained. Scolaro’s second assignment of error is rendered moot. The judgment of the Summit County Court of Common Pleas is reversed, and the cause remanded for further proceedings consistent with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.

DICKINSON, P. J., MOORE, J., CONCUR.

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WI Appeals Court Reverses SJ “Affidavit Submissions, Do Not Authenticate Assignment and Note” PHH MTG v. KOLODZIEJ

WI Appeals Court Reverses SJ “Affidavit Submissions, Do Not Authenticate Assignment and Note” PHH MTG v. KOLODZIEJ


COURT OF APPEALS
DECISION
DATED AND FILED

March 10, 2011

STATE OF WISCONSIN

PHH MORTGAGE CORPORATION

v.

ROBERT L. KOLODZIEJ AND DEBRA SNOBL, AS CO-PERSONAL REPRESENTATIVES OF THE ESTATE OFMARCELLA L. KOLODZIEJ,
DECEASED

Excerpts:

¶21 Because the assignment of the mortgage is neither authenticated by averments in an affidavit that would suffice at trial nor self-authenticated by means of a certified copy, it cannot be considered in determining whether PHH made a prima facie case for summary judgment.4

<SNIP>

¶28 Because PHH’s submissions do not provide authentication for the mortgage assignment and for the endorsed note, its submissions do not make a prima facie showing that it is the holder of the mortgage and note. The court therefore erred in granting summary judgment in PHH’s favor. This conclusion makes it unnecessary to address the Estate’s argument that, even assuming these documents were authenticated, PHH still did not make a prima facie case for foreclosure.7

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FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK

FL 2nd DCA Reverses SJ, “Genuine Issues of Material FACT, Purported Assignment of Mortgage” SANDORO v. HSBC BANK


DAVID J. SANDORO, Appellant,

v.

HSBC BANK, USA NATIONAL ASSOCIATION, AS TRUSTEE FOR WELLS FARGO HOME EQUITY ASSET BACKED CERTIFICATES, SERIES 2005-4, Appellee.

Opinion filed March 9, 2011.

Appeal from the Circuit Court for Manatee
County; Edward Nicholas, Judge.

John P. Fleck, Jr., Bradenton, for Appellant.

Joshua D. Moore of Carlton Fields, P.A.,
Orlando, and Michael K. Winston and Dean
A. Morande of Carlton Fields, P.A., West
Palm Beach, for Appellee.

KHOUZAM, Judge.

Excerpt:

We review the summary judgment de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment `if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Id. (quoting Fla. R. Civ. P. 1.510(c)). When a plaintiff moves for summary judgment before the defendant answers the complaint, the plaintiff “must not only establish that no genuine issue of material fact is present in the record as it stands, but also that the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010).

Here, the record reflected genuine issues of material fact regarding the purported assignment of mortgage and whether Mr. Sandoro had been provided with a notice of acceleration. Therefore, the trial court erred in granting HSBC Bank’s motion for summary judgment and we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

WHATLEY and KELLY, JJ., Concur.

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KENTUCKY APPEALS COURT VACATES SJ “DEUTSCHE BANK DID NOT HAVE STANDING” AUGENSTEIN v. DEUTSCHE BANK

KENTUCKY APPEALS COURT VACATES SJ “DEUTSCHE BANK DID NOT HAVE STANDING” AUGENSTEIN v. DEUTSCHE BANK


Commonwealth of Kentucky
Court of Appeals

NO. 2009-CA-000058-MR

GLENN D. AUGENSTEIN

v.

DEUTSCHE BANK NATIONAL
TRUST COMPANY
, AS TRUSTEE
FOR THE CERTIFICATEHOLDERS
OF SOUNDVIEW HOME LOAN TRUST
2005-OPT4, ASSET BACKED
CERTIFICATES, SERIES 2005-OPT4;
PAMELA FOREE; AND
DONALD T. PRATHER

OPINION
VACATING AND REMANDING

** ** ** ** **
BEFORE: DIXON AND MOORE, JUDGES; ISAAC,1 SENIOR JUDGE.

excerpt:

In light of our analysis, we vacate the entry of summary judgment because Deutsche Bank did not have standing to commence this action when it did.

This matter is therefore remanded to the circuit court for the purpose of entering an order consistent with this opinion removing this case from its docket.

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[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV. CORP v. STEELE

[NYSC] Judge Spinner “Plaintiff’s Papers Raises Disturbing Issues”, “Appears To Run Counter To New York’s Statute of Frauds” BENEFICIAL HOMEOWNER SERV. CORP v. STEELE


2011 NY Slip Op 50015(U)

BENEFICIAL HOMEOWNER SERVICE CORPORATION, Plaintiff,
v.
STEPHEN STEELE, SUSAN STEELE, OCEAN BANK FSB, “JOHN DOE” AND “MARY ROE” (SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF THE PREMISES BEING FORECLOSED HEREIN), Defendants.

2010-01996.Supreme Court, Suffolk County.

Decided January 7, 2011.Jonathan D. Pincus, Esq, 95 Allens Creek Road, Rochester, New York 14618, Attorneys for Plaintiff.

Steven Tekulsky, Esq., 113 Cedar Street, East Hampton, New York 11937, Attorneys for Defendants Steele.

JEFFREY ARLEN SPINNER, J.

Plaintiff has commenced this action pursuant to Real Property Actions and Proceedings Law Article 13, claiming foreclosure of a mortgage which encumbers real property located at 634 Stephen Hands Path, East Hampton, Suffolk County, New York. In both its Verified Complaint both and the present motion papers, Plaintiff alleges that it is the owner and holder of a Loan Agreement executed by STEPHEN STEELE and SUSAN STEELE dated October 26, 2006 in the principal amount of $92,696.60 which is secured by a Mortgage of the same date and executed by both STEPHEN STEELE and SUSAN STEELE, recorded with the Suffolk County Clerk in Liber 21410 of Mortgages at Page 639. Plaintiff further alleges that Defendants STEELE are in default of their obligations under the Loan Agreement (though the nature and extent of the default is nowhere specified) and it is claimed that the principal sum of $91,614.34 is due and owing, together with interest at the rate of 5.250% per annum as computed from October 1, 2008. Defendants STEELE, through counsel, have timely appeared and have interposed an Answer consisting of general denials as to the allegations of the Plaintiff’s Complaint together with eight affirmative defenses.

Plaintiff has moved for summary judgment in accordance with the provisions of CPLR 3212, having filed a Notice of Motion and supporting papers dated May 18, 2010 and containing a CPLR § 2214(b) seven day notice as well as a request for appointment of a Referee pursuant to RPAPL § 1921. Curiously and in direct derogation of the mandatory provisions of 22 NYCRR § 202.7, Plaintiff has failed to specify or insert a return date for the application and has apparently served its papers with no return date. Not surprisingly, counsel for Defendants has neither answered nor responded thereto, presumably due to the lack of both a stated return date and appropriate notice. The Clerk of the Court apparently scheduled the motion for June 10, 2010, which was administratively adjourned by the Court to November 17, 2010. In the interim period, mandatory foreclosure settlement conferences in accordance with CPLR § 3408 were convened on September 2, 2010 and November 9, 2010 respectively. Thereafter and on December 22, 2010, the Court received an Affidavit from Plaintiff’s counsel which purports to comply with the provisions of Administrative Order no. AO548/10.

It is settled law in New York that the initial burden is placed upon the proponent of an application for summary judgment as to making a prima facie case for entitlement to the relief sought, Norwest Bank Minnesota N.A. vs. Sabloff, 297 AD2d 722 (2nd Dept. 2002). Where Plaintiff comes forward with the mortgage at issue together with the underlying note or bond coupled with evidence of the alleged default, it establishes its prima facie right to judgment as a matter of law, Household Finance Realty Corporation of New York vs. Winn, 19 AD3d 544 (2nd Dept. 2005), Fleet National Bank vs. Olasov, 16 AD3d 374 (2nd Dept. 2005), leave to appeal dismissed 5 NY3d 849 (2005), Gateway State Bank vs. Shangri-La Private Club For Women, 113 AD2d 791 (2nd Dept. 1985), aff’d 67 NY2d 627 (1986). Once such a prima facie showing has been made, the burden shifts to the party opposing the application to come forward with sufficient evidence to controvert the summary judgment motion by demonstrating the existence of a genuine triable issue of fact, Barcov Holding Corp. vs. Bexin Realty Corp., 16 AD3d 282 (1st Dept. 2005). For the reasons hereinafter set forth, the Court finds that Plaintiff has failed to satisfy its burden of setting forth a prima facie case for entitlement to the relief it seeks.

The copy of the mortgage appended to Plaintiff’s moving papers bears the signatures of both STEPHEN STEELE and SUSAN STEELE and contains an acknowledgment by a notary public. However, the copy of the Loan Agreement that is appended to Plaintiff’s papers raises disturbing issues. That instrument bears the date of October 26, 2006 and recites a principal amount of $92,696.60. The Loan Agreement clearly reflects Defendant STEPHEN STEELE as the sole obligor thereunder but, most glaring of all, the Loan Agreement bears no signature whatsoever. General Obligations Law § 5-701 requires promises such as those contained in the Loan Agreement to be both in writing and signed by the party to be charged [G.O.L. § 5-701(a)(1)]. This Court must question how, under the circumstances presented here, Plaintiff can, with unbridled temerity, demand enforcement of the Loan Agreement against Defendant STEPHEN STEELE, who has not executed that instrument and against Defendant SUSAN STEELE, who is not even a party to that agreement. The most cursory reading of these instruments reveal the obvious facts as set forth above. This posture by Plaintiff strains credulity and causes the Court to seriously question Plaintiff’s good faith in commencing this action.

Distilled to its essence, a mortgage is a conveyance of an interest in land that is expressly intended to constitute security for some obligation, most commonly an indebtedness, Burnett v. Wright 135 NY 543, 32 NE 253 (1895). It follows logically then that in order for a mortgage to be valid and subsisting, there must be an underlying obligation that is to be secured by an interest in the real property, owed by the obligor to the obligee, which contains both the right of the obligee to foreclose and the right of the obligor to redeem, Baird v. Baird 145 NY 659, 40 NE 222 (1895), R.H. Macy & Co. v. Bates 280 AD 292, 114 NYS 2d 143 (3rd Dept. 1952). Absent these essential elements, a valid mortgage cannot exist because it is the underlying obligation which gives rise to the validity of the mortgage as a lien upon the real property. Here, the Loan Agreement that has been presented to the Court facially appears to run counter to New York’s Statute of Frauds, G.O. L. § 5-701. Since there has been presented to this Court no valid underlying obligation and no further explanation, the mortgage appears to fail as a matter of law.

This situation is all the more disturbing when it is considered that the sworn statements contained in the both the Complaint and the Affidavit in Support Of the Motion for Summary Judgment expressly and falsely assert that Defendant SUSAN STEELE executed the Loan Agreement. This is compounded by the sworn statement of Shana Richmond, Plaintiff’s foreclosure specialist, which is dated April 28, 2010 and which contains the same painfully obvious mis-statements of fact. Going further, Plaintiff’s counsel has submitted an Affirmation dated December 2, 2010 which purports to comply with Administrative Order no. AO548/10 in which he ratifies and confirms, in essence, the incorrect assertions in the Complaint and the Summary Judgment application. Aside from the papers themselves, it appears that counsel’s affirmation runs afoul of the provisions of 22 NYCRR § 130-1.1.

An action claiming foreclosure of a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investment Co. 274 NY 215 (1937), and the very commencement of the proceeding invokes the equity jurisdiction of the Supreme Court. Thus, in order to obtain equitable relief, the applicant must come before the Court with clean hands, else such relief will be denied. Thus, where a party comes before the Court and is shown to have acted in a manner which is offensive to good conscience, fairness and justice, that party will be completely without recourse in a court of equity, no matter what his legal rights may be, York v. Searles 97 AD 331 92nd Dept. 1904), aff’d 189 NY 573 (1907). Stated a bit differently, in order to obtain equity, one must do equity.

Here, it is irrefutable that Defendant SUSAN STEELE was not a party to the Loan Agreement and certainly did not execute the same. It is equally indubitable that Defendant STEPHEN STEELE did not execute the Loan Agreement that has been presented on this application. Nonetheless, Plaintiff has vigorously prosecuted this action, demanding foreclosure of the mortgage as well as money damages against both named Defendants. Under these circumstances, the Court is compelled to conduct a hearing to determine whether or not Plaintiff has proceeded in good faith and what sanction, if any should be imposed should the Court find a lack of good faith.

It is, therefore,

ORDERED that the Plaintiff’s application for summary judgment and other relief is hereby denied; and it is further

ORDERED that a hearing shall be held in this matter, at which all counsel and parties shall appear, which shall not be adjourned except by the Court; and it is further

ORDERED that said hearing shall be held on March 16, 2011 at 2:30 p.m. in Courtroom 229-A, Supreme Court, 1 Court Street, Riverhead, New York; and it is further

ORDERED that Plaintiffs’ counsel shall, within ten days after entry hereof, serve a copy of this Order with Notice of Entry upon all parties in this action as well as all counsel who have appeared in this action.

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REUTERS | NJ mortgage ruling departs from other U.S. courts

REUTERS | NJ mortgage ruling departs from other U.S. courts


Tue Jan 25, 2011 7:58pm EST

* Lender need not show physical possession of note

* Homeowner challenge Bank of America’s foreclosure right

By Grant McCool

NEW YORK, Jan 25 (Reuters) – A lender need not show physical possession of a note on underlying debt in order to seek foreclosure of a mortgage that has been securitized, a New Jersey court ordered, departing from previous court rulings in the United States.

In the case decided on Jan. 7, Bank of America Corp (BAC.N) sought to foreclose on the home of Janett Alvarado of Bogota, New Jersey, but the note and mortgage for $292,000 had been lost by Washington Mutual Bank [WMPDC.UL] before the loan obligation was transferred to Bank of America.

Courts in the United States have been unwilling to allow banks to enforce their interests without showing that they possessed the physical note.

A Superior Court judge in New Jersey, Mary Thurber, ruled that Bank of America was entitled to enforce Alvarado’s note obligation and was entitled to summary judgment.

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WISCONSIN ‘Flawed Affidavits, SJ Reversed” BANK OF NEW YORK (BONY) v. CANO

WISCONSIN ‘Flawed Affidavits, SJ Reversed” BANK OF NEW YORK (BONY) v. CANO


BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE-HOLDERS CWABS, INC. ASSET-BACKED CERTIFICATES SERIES 2006-14, C/O BAC HOME LOANS SERVICING, L.P., PLAINTIFF-RESPONDENT,
v.
DIANE G. CANO AND UNKNOWN SPOUSE OF DIANE G. CANO [MARIO CANO], DEFENDANTS-APPELLANTS,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR S&L INVESTMENT LENDING, INC., DEFENDANT.

No. 2010AP477.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: January 20, 2011.

Before Vergeront, P.J., Lundsten and Blanchard, JJ.

¶ 1 PER CURIAM.

Diane and Mario Cano appeal a foreclosure judgment. The Canos contend that (1) the circuit court erroneously exercised its discretion in granting the Bank of New York’s motion to reopen its foreclosure action against the Canos; and (2) the court erred in granting summary judgment to the Bank. We conclude that the court properly reopened the foreclosure action, but that the Bank did not establish a prima facie case for summary judgment. Accordingly, we reverse and remand for further proceedings.

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S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING

S.D. Mississippi Order Denying Summary Judgment HOOTEN v. OCWEN LOAN SERVICING


JAMES KEITH HOOTEN, et al. GERRY RENEE HOOTEN, Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

Cause No. 1:09cv491-LG-RHW.

United States District Court, S.D. Mississippi, Southern Division.

January 11, 2011.

MEMORANDUM OPINION AND ORDER DENYING SUMMARY JUDGMENT

LOUIS GUIROLA Jr., District Judge.

BEFORE THE COURT is Defendant Ocwen Loan Servicing, LLC’s Motion for Summary Judgment [30]. Plaintiffs James Keith and Gerry Renee Hooten initiated this action against their mortgage holder after their home was lost in a tax sale. Ocwen argues (1) it owed no contractual duty to pay the past due taxes, (2) the Statute of Frauds bars any oral modifications, (3) the Hootens released Ocwen from all claims, (4) and the taxes were not escrowed. The Court has considered the parties’ submissions[1] and the relevant legal authority. The motion is denied.

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OHIO 2nd APPELLATE DIST. REVERSES SUMMARY JUDGMENT; BANK OF AMERICA v. LITTERAL

OHIO 2nd APPELLATE DIST. REVERSES SUMMARY JUDGMENT; BANK OF AMERICA v. LITTERAL


Bank of America, Plaintiff-Appellee,

v.
Rodney K. Litteral, et al., Defendant-Appellant.

Appellate No. 23900.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on December 3, 2010.

Excerpt:

{¶ 1} Defendant-appellant Rodney Litteral appeals from a summary judgment rendered against him and in favor of plaintiff-appellee Bank of America. Litteral contends that the trial court abused its discretion and denied Litteral due process by failing to grant a motion for additional time to obtain counsel and respond, prior to granting the motion for summary judgment. Litteral also argues that the trial court erred by granting summary judgment before the deadline fixed by the trial court for Litteral’s response to the motion had passed.

{¶ 2} We conclude that the trial court erred in prematurely rendering summary judgment in favor of Bank of America. By prematurely entering the judgment the trial court erroneously removed Litteral’s timely filed motion for a continuance from its consideration. By depriving Litteral of the consideration of his motion within its sound discretion, the trial court erred to Litteral’s prejudice. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings consistent with this opinion.

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FORECLOSURE DEFENSE ATTORNEYS…TIME TO TAKE OFF THE GLOVES!!!

FORECLOSURE DEFENSE ATTORNEYS…TIME TO TAKE OFF THE GLOVES!!!


I have to apologize to Mr. Martinez as I normally do not post full content unless it is one of those post that you must read without being navigated to another place or distracted. Please visit the link below as it is a great source from an insider stand point.

FORECLOSURE DEFENSE ATTORNEYS…TIME TO TAKE OFF THE GLOVES!!!

.

Ok I get it… ….Attorney’s are to hold themselves to a higher standard…professionalism…professional courtesy…courtroom edicate…yada yada yada!  I get it I really do!  But my fellow legal advocates…it really is time to take off the gloves.

.

In hearing after hearing I’m seeing these defense attorneys walk in with the same timid attitude of sorts trying to be nice, trying to maintain their professionalism while across the table I’m seeing these foreclosure mill runners (I call them runners because they’re not even the attorney on the case just the runner appearing before the judge on behalf of the foreclosure mill) being extremely flagrant, arrogant and flat-out bully like to a large degree.  And what I’ve noticed is that the moment they get tripped up by the more aggressive defense lawyer, they tend to quickly tell the judge how they’re not the attorney assigned to the case and how they’re just present for the hearing and will have to check back or ask for a continuance or make the defense feel like they’ve won something by postponing the sale.  Amazing how on the fly these runners are making decisions for their clients about postponements without making a call.

.

Quite frankly for those who know me personally I give you what you dish out.  If you act like a bully I’m going to treat you like a bully.  I personally don’t like these foreclosure mills and what they stand for on a moral and ethical front.  I believe that any attorney that can stomach putting families in masses in the street for money is morally challenged and any lawyer that’s willing to commit fraud upon the court doesn’t deserve my professional courtesy.  Defense attorneys need to stop treating these foreclosure mill attorneys as their equal brothers and sisters of the profession and start treating them like enemies of the state.  That may seem a bit harsh but for every homeowner that seeks our assistance does so with a passion unseen or felt by our profession.  We need to harvest that same passion, translate it into legal argument and bring it right into the courtroom.  We cannot allow for families to lose their home as a matter of course through runners!  RUNNERS!!! Are you kidding me!  We should be kicking their ass’s right out the courtroom down out to the street and we aren’t.  We are giving them professional courtesy.

.

I think it’s time to get aggressive and outright scary in these courtrooms.  Why should a judge take us seriously when we’re not bringing the passion and seriousness of the issues to the forefront?  I walk into courtrooms and see judges laughing, I see lawyers talking while waiting their turn and a hearing is going on.  I see judges making jokes and then saying your motion to dismiss is denied.  I am nothing short of AMAZED at how unimportant kicking a family out of their home is.  Let me tell you that it’s one thing to see an adult client in front of you but it is something completely different to visit their home and see a child 4 or 5 holding a toy or a 12-year-old ask you if you’re going to save his family.  I recently traveled to New York on another case and let me tell you that in these judges courtroom, intimidation is not the word.  NO ONE is talking in the courtroom.  These judges in New York are not playing and neither are the defense attorneys.  I see great passion and argument and I see judges looking squarely at the merits of the case.  So why is this not happening in Florida courts?

.

When I see my legal associates like Matt Weidner put up a post of frustration and fear that we are losing the battle I get angry and begin calling members of my legal team to have a strategy session and figure out new ways to take back the momentum.  Defense attorneys need to silence the courtroom with their passion and sound legal arguments.  They need to create the platform in which judges and other defense attorneys stay quiet to learn.  We need to own the room when we’re in it and speaking and we need to spank these little foreclosure mill runners and make them run back to daddy Stern or daddy Watson.  Walk into court every time knowing they’ve committed fraud.  Stop being so scared to say it and use every other word you know to describe it.  Say it loud…FRAUD FRAUD FRAUD!!!  Move for sanctions!  They’re crooks…treat them like it!  Stop treating them like your equal, stop giving them professional courtesy and start treating them like they deserve to be treated!

.

TIME TO TAKE OFF THE GLOVES!!!

.  

Source: DISCOVERY TACTICS

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Posted in assignment of mortgage, chain in title, conflict of interest, CONTROL FRAUD, corruption, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., note, robo signers, servicersComments (5)

MUST READ |E-Discovery…Electronic Registration Systems WORST NIGHTMARE!

MUST READ |E-Discovery…Electronic Registration Systems WORST NIGHTMARE!


Via: Discovery Tactics aka Anthony Martinez & Assoc.

Latest Electronically Stored Information (ESI) Cases

I’ve been harping on the importance of demanding and acessing ESI from foreclosing parties for quite some time now.  A properly made ESI discovery request will provide numerous “smoking gun” documents that are sure to place the opposing party in a uncomfortable position.  Below I’ve identifed some of the most recent and more important cases that involve ESI.

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Court Grants Defendant’s Motion for Entry of Clawback Provision

Rajala v. McGuire Woods LLP, 2010 WL 2649582 (D. Kan. July 22, 2010) Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims. The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the…

Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve

Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010) Finding “willful” spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary…

Judge Scheindlin Amends Recent Pension Opinion

On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC. The order provides important clarification regarding the scope of a party’s obligation…

Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve

Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) In this case, the court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records…

Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems

GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A & M Fla. Props. II, LLC), 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010) Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in…

Court Rules Communications with Attorney Using Work Computer are Protected as Privileged

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010) In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received…

Despite Malaysian Blocking Statute, Court Compels Third Party’s Production of Foreign Banking Information Pursuant to Subpoena

Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) Plaintiff sought to compel the production of documents and information regarding defendants’ Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank’s New York Agency…

Court Provides Detailed Analysis of Law of Spoliation, Orders Adverse Inference Instruction, Monetary Sanctions for Intentional Spoliation of ESI

Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010) For intentional spoliation, the court declined to order terminating sanctions but ordered an adverse inference instruction and for defendants to pay plaintiff’s attorneys fees and costs….

Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010) In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost”…

“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion

Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010) (Amended Order) Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan…

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009) Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of…

Swiss Government Says It Would Seize UBS Data Sought by U.S.

Bloomberg.com, July 8, 2009 By David Voreacos and Mort Lucoff July 8 (Bloomberg) — Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American…

Finding Defendants’ Behavior “a Textbook Case of Discovery Abuse,” Court Orders $1,022,700 in Monetary Sanctions

Kipperman v. Onex Corp., 2009 WL 1473708 (N.D. Ga. May 27, 2009) In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought…

Court Declines to Compel Production of Documents from Foreign Jurisdiction upon Finding a Lack of Personal Jurisdiction and where Certain Documents are Protected from Production by Israeli Law

Linde v. Arab Bank, PLC, 2009 WL 1456573 (E.D.N.Y. May 22, 2009) In this case, defendant Arab Bank moved to compel production of documents, pursuant to subpoena, by non-parties Israel Discount Bank, Ltd. (“IDB”), its indirect, wholly –owned subsidiary, Israel…

Granting Motion to Compel, Court Orders Appointment of Independent Expert “to Retrieve any Deleted Responsive Files from Defendants’ Computers”

Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009) In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely…

Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code…

Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created…

Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication) In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions…

Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor

In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008) In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of…

No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations

In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008) In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for…

Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test

Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) In this wage and hour employment case, plaintiff sought documents about class members’ employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files. Rite…

Inadequate Preservation Efforts Necessitate Restoration and Production of Email from Backup Tapes, and Forensic Search of CEO’s Laptop

Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008) In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a “smear campaign” that destroyed plaintiff’s career as a securities analyst. He asserted…

Magistrate Judge Sets Protocol for Plaintiff’s Forensic Examination of Former Employee’s Computer and Requests Affidavit from Expert Explaining Certain Issues

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. 2008) In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired. Defendant explained that another Equity employee had…

Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court

On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5.2,…

The Biggest Data Disaster Ever

From The Red Tape Chronicles, Posted: Friday, November 30 at 05:15 am CT by Bob Sullivan: “It’s being called the worst data leak of the information age. Earlier this month, U.K. officials had to admit they’d lost hard drives containing…

Email Communications Between Physician and His Attorney Exchanged Over Hospital’s Email System Not Protected by Attorney-Client Privilege or Work Product Doctrine

Scott v. Beth Israel Med. Center Inc., 2007 WL 3053351 (N.Y. Sup. Ct. Oct. 17, 2007) Plaintiff is a physician who sued for breach of contract based upon his termination from defendant hospital (“BI”). Under the contract at issue, BI…

Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions

In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007) In this opinion, Magistrate Judge Andrew J. Peck granted plaintiffs’ motion for sanctions in the form of an adverse inference instruction and awarded plaintiffs their costs and…

Court Allows Plaintiffs to Conduct Expedited Discovery Regarding Possible Spoliation

Roberts v. Canadian Pac. R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007) In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis….

Condemning Defendant’s Gamesmanship, Court Orders Production of Database

JPMorgan Chase Bank, N.A. v. Neovi, Inc., 2006 WL 3803152 (S.D. Ohio Nov. 14, 2006) In this case involving UCC claims stemming from defendant’s internet-based check service, defendant disputed that it did sufficient business with Ohio residents to subject it…

Court Grants Plaintiff Access to Defendant’s Database

Bianchi v. The Bureaus, Inc., 2006 WL 3802758 (N.D. Ill. Nov. 1, 2006) In this brief order, the court granted plaintiff’s motion to allow her computer expert access a database maintained by defendant, for the purpose of determining whether the…

Citing Conference of Chief Justices’ Guidelines to State Courts, North Carolina Court Refuses to Compel Nonparty to Produce Deleted Emails from Backup Tapes

Bank of America Corp. v. SR Int’l Bus. Ins. Co., Ltd., 2006 WL 3093174, 2006 NCBC 15 (N.C. Super. Nov. 1, 2006) In its introductory remarks, the court advised: This opinion should be read in conjunction with the opinion in…

North Carolina Court Orders Production of Email from Backup Tapes; Parties to Share Restoration Costs Equally

Analog Devices, Inc. v. Michalski, 2006 WL 3287382 (N.C. Super. Nov. 1, 2006) (Unpublished) In this misappropriation of trade secrets case, defendants moved to compel the production of emails of the originators of the trade secrets at issue relating to…

North Carolina Court Relies on Conference of Chief Justices’ Guidelines in Two Decisions Involving the Production of Email from Backup Tapes

These two opinions, both filed on November 1, 2006, discuss for the first time the extent to which inaccessible electronic data is discoverable and who should pay for its production under the North Carolina Rules of Civil Procedure. Bank of…

$1.888 Million Judgment Entered in Favor of Bankruptcy Trustee Based on Adverse Party’s Spoliation of Financial Records

In re Quintus Corp., 353 B.R. 77 (Bankr. D. Del. 2006) Avaya, Inc. purchased the assets of the debtors in bankruptcy, and agreed to assume certain of the debtors’ liabilities. Thereafter, the trustee filed an adversary complaint against Avaya asserting…

Failure to Conduct Reasonable Investigation for Responsive Documents and Other Discovery Abuses Warrant Adverse Inference Instruction

3M Innovative Props. Co. v. Tomar Elecs., 2006 WL 2670038 (D. Minn. Sept. 18, 2006) In this patent infringement litigation, the district court judge affirmed the magistrate’s report and recommendation that plaintiff’s motion for sanctions against the defendant be granted…

Party Not Entitled to Shift Costs of Restoring Emails that were Converted to Inaccessible Format After Duty to Preserve was Triggered

Quinby v. WestLB AG, 2006 WL 2597900 (S.D.N.Y. Sept. 5, 2006) Like the plaintiff in the Zubulake v. UBS Warburg LLC, the plaintiff in this case was a highly-paid investment banker who accused her employer of gender discrimination and illegal…

Crime-Fraud Exception to Attorney-Client Privilege Invoked to Allow Testimony and Production of Notes by Attorney, Where Executive’s Deletion of Email Sought by Grand Jury Could Constitute Obstruction of Justice

In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006) This opinion relates to an ongoing grand jury investigation of suspected federal criminal activity; because of the secrecy of the proceeding, the court’s opinion lacks specific details. The grand…

Second Circuit Reverses Frank Quattrone Conviction for Obstruction of Justice and Witness Tampering

In 2000, Credit Suisse First Boston Corporation (“CSFB”) employed Frank Quattrone as head of its Global Technology Group (the “Tech Group”). In that capacity, Quattrone managed approximately 400 technology investment bankers from the firm’s Palo Alto, California office. The Tech…

Florida Court Affirms $75,000 Coercive Civil Contempt Sanction Against Defendants For Prolonged Discovery Abuse

Channel Components, Inc. v. Am. II Electronics, Inc., 915 So. 2d 1278 (Fla. Dist. Ct. App. 2005) In this case alleging tortious interference and related claims against two former employees, the plaintiff sought intervention by the court several times in…

Defendant Sanctioned for Negligent Failure to Institute and Communicate Legal Hold

In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005) In this opinion, the District Court adopted in full the Magistrate’s Report and Recommendation regarding plaintiffs’ motion for sanctions based upon the defendant’s failure…

Bank of America Corporation Ordered to Provide Discovery on Behalf of Non-Party Wholly-Owned Subsidiaries

In re ATM Fee Antitrust Litig., 2005 WL 3299763 (N.D. Cal. Dec. 5, 2005) In this class action, plaintiffs propounded requests for production of documents and a request for admissions to all named defendants, including Bank of America Corporation (“BAC”)….

Despite Evidence of Intentional and Negligent Concealment, Bankruptcy Court Dismisses Trustee’s Spoliation of Evidence Counterclaims Because No Injury Was Shown

In re Tri-State Armored Services, Inc., 332 B.R. 690 (Bankr. D.N.J. 2005) Insurance company brought adversary proceeding against Chapter 7 trustee, seeking either equitable rescission of employee dishonesty, crime, and disappearance insurance policies issued to debtor armored car company, or…

Court Orders Production of Home Office Backup Tape Created in Connection with CFTC Receivership

Commodity Futures Trading Commission v. Equity Financial Group, LLC, et al., 2005 WL 2205789 (D.N.J. Sept. 9, 2005) In April 2004, the U.S. Commodity Futures Trading Commission (“CFTC”) filed an enforcement action against Equity Financial Group, LLC (“Equity”) and others…

UBS Securities to Pay $2.1 Million in Penalties and Fines for Failure to Preserve Email

On July 13, 2005 the Securities and Exchange Commission (“Commission”) issued an Order in connection with the alleged failure of UBS Securities LLC (“UBS”) to preserve email. The Commission accepted an Offer of Settlement and UBS consented to entry of…

Spoliation Instruction Appropriate where Defendants Failed to Preserve Email

Arndt v. First Union Nat’l Bank, 613 S.E.2d 274 (N.C. Ct.App. 2005) Donald Arndt (“Arndt”) was hired by First Union National Bank (“First Union”) in June 1996 with an initial salary of $90,000 per year and a guaranteed minimum incentive…

Seventh Circuit Reverses Sanction Requiring Production of Documents Listed on Privilege Log

American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of the United States, 406 F.3d 867 (7th Cir. 2005) American National Bank and Trust Co. of Chicago, as Trustee f/b/o Emerald Investments LP, and Emerald Investments…

Privilege Not Necessarily Waived Where Email Between Employee and Personal Attorney Maintained on Corporate Email System

In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005) Asia Global Crossing, Ltd. and Asia Global Crossing Development Co. (collectively “Asia Global”) were pan-Asian telecommunication carriers which filed for bankruptcy under Chapter 11 on November 17, 2002. Asia…

Magistrate Recommends Adverse Inference Instruction and Monetary Sanctions for Failure to Preserve Hard Drives, Audio Recordings and Email

E*Trade Securities LLC v. Deutsche Bank AG, et al., Civil No. 02-3711 RHK/AJB and Civil No. 02-3682 RHK/AJB (D. Minn. Feb. 17, 2005) United States Magistrate Judge Arthur J. Boylan filed a Report and Recommendation regarding several electronic discovery disputes…

Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents

Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004) Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged…

Court Precludes Offering of Evidence as Sanction for Discovery Evasion

In re LTV Steel Co., Inc., 307 B.R. 37 (N.D. Ohio 2004) In bankruptcy proceeding, a creditor (“C&K”) submitted a claim for $1.9 million against the estate, a portion of which the debtor agreed was due. When the debtor sought…

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



Posted in breach of contract, chain in title, concealment, conflict of interest, conspiracy, CONTROL FRAUD, corruption, discovery, foreclosure, foreclosure fraud, foreclosure mills, foreclosures, forgery, investigation, lawsuit, mail fraud, MERS, MERSCORP, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., non disclosure, notary fraud, note, originator, RICO, robo signers, securitization, servicers, trade secrets, Trusts, ViolationsComments (0)

1st Annual Mortgage Foreclosure Defense Symposium (FL) 8/27

1st Annual Mortgage Foreclosure Defense Symposium (FL) 8/27


Friday, August 27th   Pricing & Registration

8.5 General credits or 8.5 Real Estate credits – Florida Bar Approved Course: 7687-0

Friday, August 27th, 2010   8:30 am – 5:30 pm     (8:30 check-in, 9:00 start)
PGA National Resort & Spa, Palm Beach Gardens, FL
Map and Directions

Co-sponsored by the Legal Aid Society of Palm Beach County

This seminar is designed to update mortgage foreclosure practitioners with the latest case law and practice pointers on how to defend a home secured mortgage foreclosure, and give them some insight into their local court’s practice and procedure for foreclosure cases.

A $100 refund will be given to any attorney who signs up for a pro bono case while at the seminar or before the seminar with evidence that they have taken a case.

Special Offer – Escape & Play from $139! Learn more
A special package for symposium participants is available at the PGA National Resort & Spa, including:

  • unlimited golf for 2
  • Spa access for 2
  • breakfast for 2
  • 2 for 1 drinks, plus more…Learn more about this great package!
  • ___________________________

    COURSE HIGHLIGHTS

    · Foreclosure Defense from Initial Client Interview, Preparing for Litigation, the Summons Complaint, Motion Practice, Pleading Answers, Affirmative Defenses and Counterclaims, Discovery, Motions to Strike, Summary Judgment and Trial – James A. Bonfiglio, Esq.
    · Mortgage Foreclosure & Mediation Issues – Hon. Walter N. Colbath (Ret.)
    · Local Practice and Procedure – Circuit Court Judge (Tentative)
    · Mortgage Foreclosure Defense in a Bankruptcy Context – Tom Abrams, Esq.
    · Foreclosure Defense Mortgage Assignments & Fraud Issues – Lynn E. Szymoniak, Esq.
    · Litigating Mortgage Securitization issues – Lynn E. Szymoniak, Esq.
    © 2010-17 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.



    Posted in foreclosure, foreclosures, Lynn Szymoniak ESQComments (1)

    GARY DUBIN LAW OFFICES FORECLOSURE DEFENSE HAWAII and CALIFORNIA
    Kenneth Eric Trent, www.ForeclosureDestroyer.com

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