RENDERED: MAY 9, 2014; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2012-CA-001221-MR

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE MARTIN J. SHEEHAN, JUDGE

TRACY ACUFF AND
TAMMY ACUFF APPELLANTS

v.

WELLS FARGO BANK, N.A., AND
THIRD-PARTY DEFENDANTS KENTON
COUNTY KENTUCKY; CITY OF
INDEPENDENCE, KENTUCKY; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS;
FLAGSTAR BANK; AND SHAW ESTATES
HOME OWNER’S ASSOCIATION APPELLEES

EXCERPT:

As the party moving for summary judgment, it was incumbent upon
Wells Fargo to demonstrate that there existed no genuine issues of material fact.
Steelevest, 807 S.W.2d at 480. We must conclude that the evidence in the record,
as it currently stands and viewed in the light most favorable to the Acuffs, is
insufficient to establish whether Wells Fargo was the holder of the Acuffs’ original
note and thus, the real party in interest at the time the foreclosure action was filed.
Because genuine issues of material fact existed, the trial court erred in granting
summary judgment.

HW-

For the last two years, MBIA Insurance Corp. and J.P. Morgan Securities have been fighting in court. In September 2012, MBIA sued JPMorgan (and Bear Stearns, which was acquired by JP Morgan in 2008), alleging that Bear Stearns altered a third-party due diligence report so that MBIA would insure a $1.16 billion mortgage securitization.

The securitization in question, 2006-HE4 Securitization, originated from a pool of risky mortgages and MBIA alleged that Bear Stearns, as lead underwriter, manipulated the deal’s due diligence report to make the securitization look safer than it actually was.

And according to New York State Supreme Court Justice Alan Scheinkman, that’s exactly what Bear Stearns did. But Scheinkman dismissed the case anyway because MBIA could not prove that it used the fraudulent information in its decision to insure the securitization.

[HOUSING WIRE]

Via 83jjmack

http://www.scribd.com/doc/222985488/Helen-Galope-s-LIBOR-appeal-case-Order-for-Rehearing-Denied-to-the-banks

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HELEN GALOPE, an individual,
Plaintiff – Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee under Pooling and
Servicing Agreement dated as of May 1,
2007 Securitized Asset Backed
Receivables LLC Trust 2007-BR4; et al.,
Defendants – Appellees.

No. 12-56892
D.C. No. 8:12-cv-00323-CJCRNB
Central District of California,
Santa Ana

ORDER

Before: D.W. NELSON, PAEZ, and NGUYEN, Circuit Judges.
A majority of the panel has voted to deny the petition for rehearing.
The full court has been advised of the petition for rehearing en banc and no
judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.

The petition for panel rehearing and the petition for rehearing en banc are
therefore DENIED.

FILED
MAY 8 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

______________________________________________
RELATED POST:

Helen Galope v. Deutsche Bank National Trust | Court of Appeals for the 9th Cir. – LIBOR Lies Liability May Have Just Turned LETHAL

.

cross posted with permission of Liberty Road Media

NOTE: This interview was conducted in late February 2014, before a sentencing hearing that was eventually postponed.  Ms. McCulley was then sentenced to a year each of prison and probation on April 25, 2014.  She is now requesting a Reconsideration of her sentence, and this request will be heard on May 8, 2014.

Originally published: May 7, 2014

By Clinton Kirby and Glenn Augenstein

If you follow the news of foreclosure fraud and bad banks, you have certainly heard that on February 7, 2014, a Gallatin County, Montana jury awarded Ms. Mary McCulley an incredible $6 million verdict against US Bank of Montana, with $5 million of that figure being awarded for punitive damages.

It’s the kind of victory that foreclosure fighters have long dreamed of, yet rarely (if ever) seen:  a bank being found liable for actual fraud as well as constructive fraud. Indeed, the fact that banks have committed fraud related to foreclosures (among other things) is common knowledge to both the public and the government, but the banks usually get away with it because judges inexplicably let them off the hook in any number of lawsuits (usually performing extraordinary feats of legal gymnastics to do so), or there are undisclosed settlements with homeowners, or the regulators give them a slap on the wrist in the form of either fines (that are proportionally miniscule to the banks’ financial gain from their illegal behavior) or essentially toothless settlements (sometimes both).

So in that context, the jury’s verdict in Ms. McCulley’s case is remarkable to say the least and it provides hope that all is not lost, and that the tide is turning—or has turned—against the banks.

Perseverance and fighting spirit

However, Ms. McCulley’s road to victory was not an easy one.  If she had given up the fight at any number of stops along the way, it would have been completely understandable.  And the depressing part is that, even though she has this monumental victory under her belt, she is now incarcerated in a Montana correctional facility on what many believe are dubious charges.  Those charges apparently stem from complaints filed by Tom Cahill, formerly of American Land Title Company, and Attorney J. Robert Planalp, who made appearances on behalf of American Land Title Company.  American Land Title Company, and U.S. Bank of Montana, were named as Defendants in a civil suit brought by Ms. McCulley in June of 2009.  That is to say, even though U.S. Bank of Montana was found to have defrauded her, Ms. McCulley is the one doing jail time—not anyone at the bank, or anyone else who may have been involved in the fraud against her.

“By throwing me in jail for investigating my own fraud, when the FBI wouldn’t help me, and to punish me instead of the actual people that did forgeries and stuff, I think that is a very sad statement,” Ms. McCulley said in an interview conducted in late February 2014, shortly after she won the $6 million jury verdict, but before she was sentenced on April 25, 2014.  “So that’s what’s kind of keeping me down.  There needs to be a happy ending here, and not just for me, but for all of us that are fighting these banks, you know?  Millions of us.  Millions of us!”

What makes Ms. McCulley such an admirable woman is that she knows we’re all in this together.

Like many people fighting foreclosure, Ms. McCulley first contacted government agencies for help. It was later discovered that prior to recording, the deed of trust to her property had been altered by Tom Cahill (formerly of American Land Title Company) without her knowledge or consent.   Among the agencies she contacted was the FBI.  “So the sad thing to me is that I had undisputed facts that there was a forgery.  And the FBI just [said], you know–’Have a nice day’–and they shoved me under the bus.  And so did pretty much every other government agency that I went to.”

Understandably dissatisfied with the response she received from the government, in June 2009 Ms. McCulley sued American Land Title Company and U.S. Bank of Montana.  Her case was heard in District Court of the Eighteenth Judicial District, In and For the County of Gallatin (Cause No. DV-09-562C), Honorable John C. Brown, Presiding Judge.  Despite compelling evidence that her deed of trust was altered after she signed it—but before it was recorded with the county—on January 12, 2012, the District Court granted motions for summary judgment in favor of U.S. Bank of Montana and American Land Title Company.

During this time, Ms. McCulley almost gave up.  “At my trial with US Bank, it was proven that their actions were so malicious and heinous—they drove me to a suicide attempt.  And you know who I wrote my letter to when I was going to kill myself?  The judge.  I didn’t write it to my mom or my brother—I said, ‘Dear Judge Brown, I quit.  They win.’  And went on to explain the fact that the title company’s lying, the bank’s lying, the lawyers are lying—how can I possibly fight this case when officers of the court are going to lie under oath?”

On April 25, 2012, Ms. McCulley was arrested on several charges, including a felony Assault with a Weapon.  Ms. McCulley was held on a $1 million bond.  At trial the jury passed on all but one of the charges, and came in with a guilty verdict for a misdemeanor assault charge.  Ms. McCulley was sentenced to 6 days.  After serving 309 days (303 more than the sentence), she was released.

Undeterred, Ms. McCulley did not give up the fight.  While incarcerated she contacted a paralegal who agreed to help her write an appeal of her unfavorable court decision, which was eventually heard by the Supreme Court of Montana.  “So I’m in jail, and I’m filing the appeal—and you don’t have anything but an ink pen—but I had a pay phone and I found a paralegal, this guy Alex.  And he came, and I told him the story and he helped me write it and we got it to the Supreme Court.”

Alex is deserving of some gold stars, and perhaps an adult beverage, or two.

Ms. McCulley was released in early March 2013.  On April 9, 2013, the Supreme Court of Montana ruled in Ms. McCulley’s favor, stating in part: “For these reasons, we reverse the District Court’s order of summary judgment in favor of the Bank on the issue of fraud and remand the matter to the District Court for further proceedings.”  American Land Title Company was dismissed from the suit, but U.S. Bank of Montana was not.

Upon remand, and through the trial of February 7, 2014, the jury recognized the defendant had been, to put it mildly, considerably less than honest and forthcoming.  Judge Brown, in his April 14, 2014 “Findings of Fact, Conclusions of Law and Order re: Punitive Damages,” said:

At page 10, par. 37, “The Bank made these false statements to the Court in 2011, and the Court relied on the false statements in its summary judgment order.”

At page 13, par. 7, “When, as here, there is concealment of evidence of improper motive the Court will consider this in assessing reprehensibility of the Bank’s conduct.”

At page 13, par. 8, “Further, US Bank ‘blatantly misrepresented an important fact’ in one of its briefs filed with this Court.”

In the same par. 8, “This egregious behavior by the Bank constitutes intentional deceit and supports the conclusion that the Bank’s conduct was reprehensible.”

In a 1913 Harper’s Weekly article Louis D. Brandeis said, “Sunlight is said to be the best of disinfectants.”  Clearly Honorable Judge Brown is in agreement.

Perseverance pays off

“I’ve always kind of known I would win the suit against the bank because of the documents,” Ms. McCulley said.  “Like I said, it’s a document case; it’s not a hearsay case.  The documents speak for themselves.”  The Gallatin County jury agreed, in a big way. “That was a complete—just bombshell dropped.  That’s a huge verdict for Montana,” Ms. McCulley said.  “I think the money shows that banks can be evil, to get those kind of punitive damages, you know?”

Despite the ordeal she has already endured–and will continue to endure unless she is (hopefully) released from prison in the next couple of days–Ms. McCulley is keenly aware of what her victory means and the potential impact it could have:  “I don’t know if I’ll ever see a dime.  But I want this to be something that somebody else can use.  Or that we could parlay into some kind of political—something, you know–’Hey wake up!  The banks do lie, cheat, and steal.  That’s the whole goal, you know.”

Ms. McCulley is currently incarcerated in the Cascade County Correctional Facility, Great Falls, MT.  Her reconsideration hearing is scheduled for tomorrow—Thursday, May 8 at 3:00 MDT.

To contact the reporters on this story:

Clinton Kirby: leftbehindchild@gmail.com, Glenn Augenstein: mrgl7enn@yahoo.com

#FREEMARYMCCULLEY

May 8 (Bloomberg) — Neil Barofsky, partner at Jenner & Block, examines the potential risk to the financial industry of bringing criminal charges against banks and whether or not U.S. banks could be next in line for charges on Bloomberg Television’s “Bloomberg Surveillance.”

.

DA 13-0241
IN THE SUPREME COURT OF THE STATE OF MONTANA
2014 MT 117

ABRAHAM B. MORROW and BETTY JEAN MORROW,
Plaintiffs and Appellants,

v.

BANK OF AMERICA, N.A., BAC HOME LOANS
SERVICING, LP, fka COUNTRYWIDE HOME
LOANS SERVICING, LP,
Defendants and Appellees.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 2011-491
Honorable Kathy Seeley, Presiding Judge

Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Abraham B. Morrow and Betty Jean Morrow appeal from an order of the First
Judicial District Court, Lewis and Clark County, granting Defendant Bank of America’s
motion for summary judgment. We affirm in part, reverse in part, and remand.
¶2 The following issues are presented for review:
¶3 Issue One: Whether the District Court erred in finding the Morrows failed to
establish the existence of an oral contract for modification of their loan.
¶4 Issue Two: Whether the District Court erred in finding that Bank of America owed
no common law or fiduciary duty to the Morrows.
¶5 Issue Three: Whether the District Court erred in granting summary judgment to
Bank of America on the Morrows’ claim of negligent misrepresentation.
¶6 Issue Four: Whether the District Court erred in finding that the Statute of Frauds
precluded the Morrows’ claims of actual fraud, constructive fraud, and violations of the
Montana Consumer Protection Act.
¶7 Issue Five: Whether the District Court erred in granting summary judgment to
Bank of America on the Morrows’ claim of actual fraud.
¶8 Issue Six: Whether the District Court erred in granting summary judgment to Bank
of America on the Morrows’ claim of constructive fraud.
¶9 Issue Seven: Whether the District Court erred in granting summary judgment to
Bank of America on the Morrows’ claim under the Montana Consumer Protection Act.

LOL.. Yep, trust us just like we did in the past =)!

HW-

When American Homes 4 Rent (AMH) announced that it would be offering a single-family rental securitization, the details were sparse. Now, a day later, ratings agencies have gotten a look at the deal and released their presale reports.

Kroll Bond Rating Agency, Morningstar and Moody’s Investor Service have each weighed in on the AHR package and given it a sterling AAA rating.

The offering, called American Homes 4 Rent 2014-SFR1, is a $482.7 million single-family rental securitization. The transaction is collateralized by a single loan that is secured by mortgages on 3,871 income-producing single-family homes.

[HOUSING WIRE]

Bloomberg-

The chief operating officer of the Federal Housing Finance Agency is facing a felony charge for threatening to kill the agency’s former top official, according to Washington, D.C. police and Superior Court records.

Richard Hornsby last week threatened to shoot former FHFA Acting Director Edward J. DeMarco and then kill himself, according to an April 29 police report. DeMarco, who retired from the agency that regulates Fannie Mae (FNMA:US) and Freddie Mac (FMCC:US) on April 30, was taken to a secure location while Hornsby was arrested.

Hornsby, 58, was released under the condition that he not assault, threaten, harass or stalk DeMarco, 53, who hired him in 2011.

[BLOOMBERG]

WZZm13-

You may remember the Grand Rapids area couple we told you about having trouble with the new company now servicing their mortgage. Ocwen almost immediately raised their monthly payment but the company could not or would not tell them why.

While trying to clear up the confusion,the homeowners were hit with late fees and a negative credit report; it’s a story that’s happened all around the country. In fact late last year, Ocwen reached a settlement with 48 states including Michigan to provide over $2 billion to customers for certain alleged practices. They include contributing to premature and unauthorized foreclosures, violating homeowners rights, and the use of false and deceptive documents.

[WZZm13]

Marinka Peschmann-

You better find out now!

Imagine pulling up to your driveway with your kids laughing in the backseat, having come home from a baseball game, to see a foreclosure notice tacked on your front door. Maybe all of your belongings have been tossed out onto the street. You are in shock. It doesn’t make sense. There must be a mistake. Why is the bank taking your house? Your home was your security, your retirement. It was the American dream. You had played by the rules. It’s where your children have been growing up. Their smiling faces hang in the beautifully framed photographs on your hallway walls and are carefully placed on your fireplace mantle. Now, incredibly, suddenly, without warning, your entire world has been ripped apart, shattered.

Despite having never missed a mortgage payment and even paying early, the bank is coming to take away your home. They are coming to throw you out onto the street. Panic, disbelief—a tidal wave of emotions nearly knock you over as your heart beats faster and faster. The walls start closing in around you. You cannot breathe. The clock is ticking. Why is the bank coming to take away your house? You did everything you were told to do. Where will your children sleep in a few weeks from now?

Think this can’t be you? Oh no, think again. This nightmare has been occurring across the country for years. As the Wall Street Journal’s Alan Zibel reported, bank files show that more foreclosure errors are happening than regulators have reported to the public.

[Marinka Peschmann]

Contacts

Kahn Swick & Foti, LLC
Lewis Kahn, Managing Partner, 1-877-515-1850
lewis.kahn@ksfcounsel.com
or
Melinda Nicholson, Partner, 1-877-515-1850
melinda.nicholson@ksfcounsel.com

Consumer Law and Policy Blog-

Many people’s eyes probably start to glaze over at the mention of amendments to the Federal Rules of Civil Procedure. But a recent action by the federal Advisory Committee on Civil Rules bears mentioning, and not just for civil procedure nerds.

First, the context: the Federal Rules of Civil Procedure govern civil cases in federal court. They determine what a plaintiff must claim to get in the courthouse door, what procedures and time limits apply to steps that move the litigation forward, and (of particular importance to this set of amendments) the rules governing discovery — that is, what information the opposing sides must share with each other through written questions, requests for documents, and in-person questioning of witnesses under oath.

Next, consider the proposals before the Committee: for several months, the Committee has been considering amending the rules to limit discovery (specifically, to reduce the presumptive numbers of depositions and interrogatories; to limit the number of requests to admit; and to reduce deposition length). What these amendments would mean in practical terms is that the opposing sides are entitled to ask fewer questions of each other, question fewer witnesses under oath, and generally obtain less information.

 [Consumer Law and Policy Blog]

Law360-

The U.S. Supreme Court on Monday asked the federal government to weigh in on whether it believes states can bar out-of-state banks from conducting foreclosures or whether the National Bank Act trumps state law on that jurisdictional matter.

In the case at hand, Fannie Mae argues that the Utah Supreme Court went against the express meaning of both the National Bank Act and the authority of the Office of the Comptroller of the Currency when it barred a Texas-based unit of Bank of America Corp. from…

[LAW360] subscription

ZZZZZZZZZZZzzzzzzzzzzzzzzzzzzzzzzzz

Politico-

Attorney General Eric Holder declared Monday that no banks are too big to be prosecuted if they engage in criminal activity, while another law enforcement official said a pair of cases against major banks may culminate in guilty pleas in the near future.

“There is no such thing as ‘too big to jail,” Holder declared in a weekly video message. “No individual or company, no matter how large or how profitable, is above the law.”

Cases against Swiss bank Credit Suisse for helping Americans evade taxes through secret accounts and against French bank BNP Paribas (for dodging U.S. sanctions against Sudan and Iran) are expected to be resolved in the next couple of weeks, possibly with guilty pleas, said a law enforcement official who asked not to be named.

[POLITICO]

HA!! What a joke! What took soooo long??

What about the law firms that are in cahoots with the banks from day one?

Bloomberg-

U.S. Attorney General Eric Holder said his department is readying criminal cases against banks that show financial institutions aren’t too big to prosecute.

Holder, in a video message posted today on the department’s website, said improved coordination with regulators is creating a relationship that “will prove key in the coming weeks and months” as prosecutors pursue charges. The government is nearing decisions on whether to charge Credit Suisse Group AG (CSGN) and BNP Paribas SA, (BNP) people familiar with those probes said. Holder didn’t specify any banks.

“I am personally monitoring the status of these ongoing investigations,” he said, speaking generally. “I am resolved to seeing them through, and in doing so, I intend to reaffirm the principle that no individual or entity that does harm to our economy is ever above the law.”

[BLOOMBERG]

Williams & Connolly, LLP v. Office of Comptroller of Currency (D.D.C. 2014)

Status: Precedential
View original: From the court

<excerpt>

One of the consultants, Allonhill, LLC (“Allonhill”), was engaged as an independent consultant for Aurora Bank until its termination at the direction of the OCC due to a conflict presented by Allonhill’s previous work and the independence requirements of the OCC
in connection with the IFR. See Ex. 1 (Walker Decl.) at Ex. D, p. 15.

__________________

5 Williams & Connolly is counsel for the terminated consultant, Allonhill.

-5-

 . . .

Accordingly, for the foregoing reasons, the Court grants the Comptroller’s motion for summary judgment and denies the plaintiff’s motion for summary judgment and also its request for a hearing in the matter.

SO ORDERED this 30 day of April, 2014.11

REGGIE B. WALTON
United States District Judge

More…

WILLIAMS & CONNOLLY, LLP v. OFFICE OF COMPTROLLER OF CURRENCY
District Of Columbia District Court, Case No. 1:13-cv-00396

12	Filed: 7/29/2013, Entered: None
	RESPONSE re 10 Cross MOTION for Summary Judgment MOTION for Hearing filed by OFFICE OF COMPTROLLER OF CURRENCY.

11	Filed: 7/29/2013, Entered: None
	Memorandum in opposition to re 9 Cross MOTION for Summary Judgment filed by WILLIAMS & CONNOLLY, LLP.

9	Filed: 6/28/2013, Entered: None
	Cross MOTION for Summary Judgment by OFFICE OF COMPTROLLER OF CURRENCY

Docket
Complaint
Complaint attachment 1
Complaint attachment 2