Are these going to be the docs they signed at DOCX, LPS, NTC and most using MERS…in other words anything that was signed by 20,000!
Is this even permitted by the PSA’s?
LinkedIn-
Job Description
Title Examiner
Description
Reviews residential titles and their documentation in a timely and thorough manner, per Company standard operating procedures. Emphasis will be on verifying that the information in the title search and accompanying documentation is accurate and complete, thereby providing an accurate and complete foreclosure report/title product for our attorney/client database. Key functions will include resolving problems relating to missing, incomplete, inaccurate or contradictory information contained in the title or accompanying documentation, in addition to communicating effectively and in a proactive manner with our clients so issues regarding the title will be resolved.
Rachel Maddow reports on one North Carolina town standing up to the big banks that destroyed the housing market and the lives of many local families with foreclosures that may turn out to be fraudulent.
IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION
COUNTY OF GUILFORD
GUILFORD COUNTY, ex rel. JEFF L. THIGPEN, GUILFORD COUNTY REGISTER OF DEEDS, Plaintiff,
v.
LENDER PROCESSING SERVICES, INC.; DOCX, LLC; LPS DEFAULT SOLUTIONS, INC.; MERSCORP HOLDINGS, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; WELLS FARGO BANK, N.A.; WELLS FARGO HOME MORTGAGE, INC.; BANK OF AMERICA, N.A.; JPMORGAN CHASE BANK, N.A.; CHASE HOME FINANCE LLC; EMC MORTGAGE CORPORATION; MIDFIRST BANK; SAND CANYON CORPORATION; CITI RESIDENTIAL LENDING, INC.; GREEN TREE SERVICING, LLC; AMERIQUEST MORTGAGE COMPANY; USAA FEDERAL SAVINGS BANK; AMERICAN HOME MORTGAGE SERVICING, INC.; MOREQUITY, INC.; U.S. BANK NATIONAL ASSOCIATION; EQUICREDIT CORPORATION OF AMERICA; NATIONSCREDIT FINANCIAL SERVICES CORP.; ARGENT MORTGAGE COMPANY, LLC; THE BANK OF NEW YORK MELLON; THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.; CAPITAL ONE, N.A.; FIRST FRANKLIN FINANCIAL CORP.; NAVY FEDERAL CREDIT UNION; and WEICHERT FINANCIAL SERVICES; Defendants.
For Immediate Release: March 13, 2012 Contact: Ginger Cavanaugh (704) 246-3896 ginger@talcottfranklin.com
Guilford County Sues To Clean Up Banks’ “Mess” at the Register of Deeds
Guilford County, ex rel. Jeff L. Thigpen, Guilford County Register of Deeds, filed suit today against LPS/DocX, MERSCORP, MERS, Inc., and numerous banks, loan servicers, and foreclosure specialists seeking to clean up the “mess” Defendants created in the County’s property records registry.
“Our office uncovered an abundance of falsified, forged, and fraudulently executed mortgage documents,” said Thigpen. “But our investigation only found the tip of the iceberg. We need the banks to clean up their mess.”
The suit cites as evidence, Thigpen’s identification of over 6,100 mortgage documents (4,519 of those by DocX) which were filed with the Register of Deeds and signed in the names of known robo-signer aliases: “Linda Green,” “Christie Baldwin,” “Pat Kingston,” “Korell Harp,” “Jessica Ohde,” “Rita Knowles,” “Linda Thoresen,” and “Brent Bagley.”
“How can we maintain accurate records of title with fraudulent documents? The banks are also maintaining their own private registry called ‘MERS’ that prevents the public from discovering who owns what loans. Because there is no accountability for MERS, its records are also a mess,” said Thigpen. “The system is broken and it needs to be fixed. We’re telling MERS and the banks: you broke it, you fix it.”
In an April 6, 2011 letter, Thigpen and Southern Essex (MA) District Registry of Deeds John O’Brien urged Iowa Attorney General Tom Miller to investigate MERS and its impact on Registers of Deeds as part of the national attorneys general robo-signing investigation. The suit cites numerous reasons why MERS fails to keep reliable chains of title, and notes that the recent attorneys general settlement did not address MERS’s and robo-signing’s impact on Registers of Deeds.
“When you combine the fraudulent documents with MERS, it is difficult if not impossible to trace title for property. Potential title defects hurt Guilford County homeowners and businesses by impacting property values,” said Thigpen. “We need to clean up chains of title to ensure certainty in the land records system.”
Under Thigpen, the Guilford County Register of Deeds strives to serve as a model register. The Register of Deeds implemented electronic filing, created an audit software program to improve indexing and correct filing errors, intensified staff training, redacted social security numbers from land records, and significantly upgraded technology.
In 2009, the Register of Deeds received a Local Government Federal Credit Union Productivity Award from the North Carolina Association of County Commissioners for technological innovations.
“It is unbelievably frustrating to expend County resources in an attempt to create an efficient, accurate registry and have these banks wreak havoc on our efforts through fraudulent documents and a secret registry. If we don’t fix this now, the future impact on land records and property values could be severe and incurable.”
“Registries of deeds pre-date the founding of this country and are essential functions of government,” said Guilford County Attorney Mark Payne. “The Guilford County
Register of Deeds has created an outstanding infrastructure, but no registry can work if it is filled with falsified documents.”
The lawsuit, filed by Payne and Deputy County Attorney Matthew Turcola, describes the process by which the Defendants made and sold loans, created and maintained MERS, filed robo-signed documents, and damaged the Register of Deeds and the people of Guilford County. Among other things, the suit seeks the appointment of a special master to oversee an audit of the mortgage documents on file at the Register of Deeds and make necessary corrections.
“While the suit goes into detail on a complex series of transactions, the message is pretty simple,” said Payne. “We’re saying to the banks: ‘You made the mess, you clean it up.’”
Guilford County is located in central North Carolina. Its population is approximately 500,000. Greensboro is the largest city within Guilford County. Guilford County was established in 1771, the same year it began its Registry of Deeds. To assist with the suit, Guilford County retained Talcott Franklin P.C., the nation’s preeminent securitization litigation law firm. Talcott Franklin P.C. has offices in Dallas, Texas and Davidson, North Carolina. Links:
Michigan Attorney General Bill Schuette has issued a second criminal investigative subpoena against national mortgage servicing support provider DocX as his office continues to investigate questionable mortgage documentation filed with Michigan’s Register of Deeds offices during the current foreclosure crisis.
“We are moving forward with our investigative efforts to find answers on behalf of Michigan homeowners,” said Schuette.
Schuette’s office has requested documents and information regarding DocX operations in relation to foreclosure and/or bankruptcy-related document processing. The subpoena was approved by the 54B District Court in Ingham County, and the information must be provided to the Attorney General’s Office on or before April 4.
This is the second criminal subpoena filed during the course of Schuette’s investigation. Schuette previously filed a criminal subpoena against DocX on June 12, 2011.
“It’s troubling to know that in each of our offices, are thousands — and I mean thousands — of fraudulent documents,” said Brown County Register of Deeds Cathy Williquette Lindsay
Madison-
It used to be that if you wanted to find out who owned your mortgage, you could go to the office of your local register of deeds, the final authority on questions of property ownership.
But when banks set up their own private registration system to help them bundle and resell mortgages in a whirlwind of securities exchanges, the land offices of record had no hope of keeping up.
And when some banks later foreclosed on many of those properties, often cutting corners or worse — creating phony documents — it left register of deeds offices across Wisconsin awash in forged and fraudulent documents.
That’s a “serious problem” for registrars charged with maintaining property records, said Brown County Register of Deeds Cathy Williquette Lindsay, who heads a committee studying foreclosure fraud on behalf of the Wisconsin Register of Deeds Association.
It’s one thing when a small-time litigator from Jacksonville, Florida makes accusations (that’s me), and then it is another thing when 60 Minutes does it. It’s something even more when the federal regulators recognize LPS’s shenanigans, but when a federal judge confirms everything I (and many other lawyers) have been saying for years about LPS, you know LPS is in trouble.
Who is LPS? LPS (formerly known as Fidelity National Default Solutions) is a default servicer for one out of every two mortgages in this country. It lurks in the shadows of the mortgage industry like a hit-man for the mob, and when LPS whacks you, you never see it coming.
Action Date: February 7, 2012
Location: Boone Country, MO
DocX, LLC, a mortgage document company and a subsidiary of Lender Processing Services (“LPS”) in Jacksonville, Florida, was indicted on February 6, 2012, by a grand jury in Boone County, Missouri. Lorraine O’Reilly Brown, a former Senior Vice President of Lender Processing Services, and the founder of DocX, was also indicted. This was the first case in which a senior officer of a mortgage document company was charged with crimes relating to mortgage document preparation.
Brown and DocX were each charged with 68 counts of forgery, a class C felony in Missouri and 67 counts of False Declaration, a Class B misdemeanor.
The felony charges can each carry a term of imprisonment not to exceed seven years and a fine not to exceed $5,000 or double the gain from the crime up to $20,000. The misdemeanor charges each carry a term not to exceed six months, and a fine of $500 or double the gain up to $20,000.
The case will be prosecuted by Missouri Attorney General Chris Koster. “Today’s indictment reflects our firm conviction that when you sign your name to a legal document, it matters,” Koster said. “Mass-producing fraudulent signatures on millions of real estate documents across America constitutes forgery. When you file those documents in our state, you are committing a crime under Missouri law.
The indictment focuses on Deeds of Release, documents issued by banks and mortgage companies when a homeowner/borrower successfully pays off their loan. In some states, these are also called Satisfaction of Mortgages. The documents examined by the grand jury and identified in the indictments were signed by many different people signing the name Linda Green. This practice was first exposed in a segment of 60 Minutes that aired in 2011.
Other employees of a subsidiary of Lender Processing Services were indicted in 2011 in Nevada by Attorney General Catherine Cortez Masto. These employees notarized mortgage documents that had been signed by LPS employees using false names and false job titles.
LPS has steadfastly defended these practices and even coined a term, calling the forgeries “surrogate signing.” Regarding the use of false job titles, LPS has defended this practice by saying such titles were authorized by corporate resolutions from many different banks and mortgage companies.
But while publicly defending these practices, lawyers working for LPS have been filing thousands of “corrective” mortgage assignments in county records throughout the country. In tens of thousands of cases, employees signed the name Linda Green to mortgage documents and identified Green as an officer of Mortgage Electronic Registration Systems (“MERS”) though the real Linda Green did not qualify to serve as a MERS certifying officer because she was not an officer of her actual employer.
Conferring of officer titles to non-employees via corporate resolutions was one of the many practices challenged in a civil lawsuit brought by Illinois Attorney General Lisa Madigan against another mortgage document mill, Nationwide Title Clearing, on February 2, 2012.
Employees in the DocX office signed names to mortgage documents 4,000 times a day for several years. They most often signed false names and false officer titles to mortgage satisfactions and mortgage assignments. The assignments were very often used in foreclosure cases to prove that residential mortgage-backed trusts owned the mortgages and had the right to foreclose even though the trusts had never obtained the necessary documents during the securitization process.
These practices will be a significant part of the examination to be conducted by the mortgage securitization fraud task force, announced by President Obama during the State of the Union address. The taskforce will be co-chaired by New York Attorney General Eric Schneiderman who filed a lawsuit against MERS and three major banks on February 3, 2012. The New York lawsuit was similar to the lawsuits filed by Delaware Attorney General Beau Biden on October 27, 2011 and by Massachusetts Attorney General Martha Coakley in December, 2011.
According to the lawsuit filed by Attorney General Biden, “MERS engaged and continues to engage in a range of deceptive trade practices that sow confusion among consumers, investors, and other stakeholders in the mortgage finance system, damage the integrity of Delaware’s land records, and lead to unlawful foreclosure practices.”
The DocX mortgage documents permeate the records of almost every county recorder in the country. From July 1, 2008 through December 31, 2009, 1,742 DocX mortgage assignments were filed in Palm Beach County, transferring mortgages valued at $560,239,797. Deutsche Bank National Trust Company and American Home Mortgage Servicing were two of the most frequent users of the DocX documents, but over 30 banks and mortgage companies were clients of DocX.
Jefferson City, Mo. – Attorney General Chris Koster today announced that a Boone County grand jury has handed down 136-count indictments against DOCX, LLC and its founder and former president, Lorraine Brown, for forgery and making a false declaration related to mortgage documents processed by DOCX.
“The grand jury indictment alleges that mass-produced fraudulent signatures on notarized real estate documents constitutes forgery,” Koster said. “Today’s indictment reflects our firm conviction that when you sign your name to a legal document, it matters,” Koster said.
The forgery and false declaration counts each allege that the person whose name appears on 68 notarized deeds of release on behalf of the lender is not the person who actually signed the paperwork. The documents were then submitted to the Boone County Recorder of Deeds as though they were genuine.
Koster’s office requested the indictment, and the Attorney General’s Office will prosecute the case.
The indictments are the result of months of investigation by the Attorney General’s Office into the robo-signing scandal that injected thousands of questionable mortgage documents into the market. When the practice began to come to light, several major lenders temporarily suspended foreclosures in 2010. DOCX’s role in the robo-signing process came to national attention when 60 Minutes reported that Linda Green, an employee of DOCX, purportedly signed thousands of mortgage-related documents on behalf of several different banks and in multiple handwritings. The 68 documents on which the indictments are based were purportedly signed by Linda Green, but were allegedly signed by someone else.
Forgery is a Class C felony and False Declaration is a Class B misdemeanor. If convicted on the most serious count, Brown could face up to seven years in prison for each count. DOCX could be fined up to $10,000 for each forgery conviction and $2,000 for each false declaration conviction.
The charges against DOCX and Lorraine Brown are merely accusations and, as in all criminal cases, the defendant is innocent until or unless proved guilty in a court of law.
The Attorney General’s investigation into this practice continues.
Some tid-bits for you all from DOCX’s website in 1998:
DOCX was established in March of 1993 by its president, Lorraine O. Brown. It’s a privately held Colorado Limited Liability Company. DOCX set up headquarters in Springfield, Ohio. In October 1994, DOCX merged forces with Ontrak Services. Ontrak was a pioneer in the development of outsourcing services for assignment and satisfaction processing. With the acquisition of Ontrak, DOCX expanded its operations to Frederick Maryland. DOCX has recently established a marketing/sales office in Atlanta, Georgia. DOCX operations continue to run in both the Springfield, Ohio and Frederick, Maryland locations.
[…]
DOCX developed two software products; DOCX RID™ (Recorders Information Database) which keeps track of County Recorder fees, and the requirements for recording assignment and satisfaction documents, UCC’s, and to obtain certified true copies of recorded documents. DOCX’s latest software development, DOCX in a BOX™, takes the DOCX RID program significantly further by providing the software to produce the completed and legally-sufficient documents required to process
NYT-
One of the largest companies that provided home foreclosure services to lenders across the nation, DocX, has been indicted on forgery charges by a Missouri grand jury — one of the few criminal actions to follow reports of widespread improprieties against homeowners.
A grand jury in Boone County, Mo., handed up an indictment Friday accusing DocX of 136 counts of forgery in the preparation of documents used to evict financially strained borrowers from their homes. Lorraine O. Brown, the company’s founder and former president, was indicted on the same charges.
Employees of DocX, a unit of Lender Processing Services of Jacksonville, Fla., executed and notarized millions of mortgage documents for big banks and loan servicers over the years. Lender Processing closed the company in April 2010, after evidence emerged of apparent forgeries in these documents, a practice now called robo-signing.
Q Do you have any knowledge of why American Home Servicing, Inc. no longer does business with DOCX?
A There were deficiencies in the documents that they were producing.
Q What sort of deficiencies in general?
A They weren’t deficiencies. They weren’t prepared correctly
Q Can you give me any more detail about that? I’m not asking about this specific case yet. Just in general what sort of deficiencies?
A Some of the assignments weren’t properly conveying the assignor/assignee appropriate parties.
Q As to the present mortgage that we’re here on today, do you know whether American Home Servicing, Inc. has ever had any ownership of the beneficial interest in the payments due under the note and secured by the mortgage?
A No, we’re strictly the servicer.
Q So at no time has American Home Servicing, Inc. actually owned any interest in the mortgage; is that correct?
MR. COOK: Object to the form.
THE WITNESS: No, we have not.
[…]
Q Now, do you know a person by the name of Tywanna Thomas?
A No.
Q Have you ever heard that name?
A Yes.
Q In what context have you heard or become familiar with that name?
A I’ve seen her name on assignments that they prepared.
Q That DOCX prepared?
A Yes.
Q Has it ever come to your attention that there are some irregularities with assignments allegedly signed by Ms. Thomas and prepared by DOCX?
Mr. COOK: Object to the form.
THE WITNESS: Yes.
BY MR. TRENT:
Q What about Korell Harp, K-O-R-E-L-L, H-A-R-P? Same question. Do you know Korell Harp? that particular assignment came about?
MR. COOK: Object to the form.
THE WITNESS: How it came about?
BY MR. TRENT:
Q Yes. Isn’t it a fact, ma’am, that this is a DOCX assignment? I’ll just hand you the exhibit.
MR. TRENT: It’s Exhibit —
THE WITNESS: Two.
MR. TRENT: — two. (Thereupon, Defendants’ Exhibit Number 2 was marked for identification.)
BY MR. TRENT:
Q It has the Notice of Filing in the front, but skip that.
MR. COOK: Do you want some time to review the document?
THE WITNESS: I forgot the question.
BY MR. TRENT:
Q Isn’t it a fact, ma’am, that this document was prepared by DOCX?
The stink is growing around the state’s largest foreclosure mill.
The Steven J. Baum law firm, which last month agreed to pay a $2 million fine to settle a federal probe into bogus foreclosure case filings, has now been barred by federal mortgage giants Fannie Mae and Freddie Mac from getting any more referrals of home loan defaults owned by either company.
In addition, the 70-lawyer firm is linked to the first criminal case brought against alleged robo-signers.
The criminal case was brought by the Nevada attorney general against two title officers — Gary Trafford and Gerri Sheppard — charged with forging signatures on 606 foreclosure-related mortgage documents.
“‘Linda Green’ is on documents as vice president of Wells Fargo. She’s (on other documents as) vice president of (Mortgage Electronic Registration Systems Inc.). She is vice president of Optical Mortgage Co. as well, and all of the signatures are completely different,” McPherson said. “Another name to take notice of is ‘Pat Kingston.’ She or he has several different titles. Lately, (the lenders or document providers) haven’t been using ‘Linda Green’ as much. There’s a new set of fake names. ‘Brian Blaine’ is the vice president of Chase Mortgage Bank. He is vice president of Washington Mutual Bank. He is vice president of Nations Credit Financial Services Corp. He’s vice president and attorney in fact for IndyMac Federal Bank.”
RRSTAR-
In late 2010, the furor over “robo-signers” revealed the complicated — and occasionally sloppy, if not entirely negligent — mountains of paperwork that accompany mortgages and the process of foreclosure.
Attorneys representing homeowners in several states uncovered the fact that many banks, or the companies the banks used to process paperwork, were authorizing documents without checking their accuracy or even giving them more than a cursory glance. In some cases, these “robo-signers” fraudulently signed the names of bank officials, attorneys and notaries.
Action Date: October 24, 2011 Location: West Palm Beach, FL
HURRICANE CHERYL DESTROYS LAND RECORDS IN PALM BEACH COUNTY
In the six month period from September 1, 2008 through February 28, 2009, 502 mortgage assignments, signed by Cheryl Samons, were filed in the official records of Palm Beach County, FL.
Samons was the office manager for the Law Offices of David J. Stern, but she signed as a MERS officer.
Mortgage-backed trusts were the primary beneficiary of these Samons Assignments.
Mortgage Assignments Signed by Cheryl Samons Filed in Palm Beach County from September, 2008, through February, 2009:
Multiplied by three, in the 18-month period from July 4, 2008 though January 4, 2009, Samons is likely to have signed 1,506 Assignments.
This is the same 18-month period that 1,742 Docx Assignments were being filed in Palm Beach County. These had a stated mortgage value of $560,239,797 or an average mortgage value of $321,607 per assignment.
Samons Palm Beach County assignments filed from July 4, 2008 through January 4, 2009 have an estimated value of $484,340,182, nearly half a billion dollars.
This does not include the assignments signed by other Stern employees, associate Beth Cerni or paralegal Carol Wasserman.
The combined value of mortgages, primarily transferred to mortgage-backed trusts, for one county for one 18-month period: $1,044,579,939.
While Docx Assignments were only filed for 18 months in Palm Beach County, Samons assignments appeared regularly from 2007 through 2010.
A few email discussions of the FL AG’s office that show what went on behind closed doors. Go thru them and thanks to Foreclosure Hamlet for these gems.
NOTE: Korell Harp misspelled, also see signature variations below.
In re: RICHARD AND KAREN CHALGREN, Chapter 13, Debtors. RICHARD AND KAREN CHALGREN, Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, ET AL., Defendants.
Case No. 09-56729 ASW, Adv. Proc. No. 10-5057.
United States Bankruptcy Court, N.D. California.
October 7, 2011.
MEMORANDUM DECISION ON MOTIONS TO DISMISS
ARTHUR S. WEISSBRODT, Bankruptcy Judge.
Before this Court are two motions to dismiss the First Amended Complaint of debtors Richard Scott Chalgren and Karen Chalgren (” Plaintiffs”). For the following reasons, this Court grants Defendants’ motions with leave to amend with regard to the first, second, third, and sixth causes of action. This Court denies Defendants’ motions to dismiss with regard to the fifth cause of action and grants the motions in part with regard to the fourth cause of action.
This Memorandum Decision constitutes the Court’s findings of fact and conclusions of law, pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
A. PROCEDURAL HISTORY
Plaintiffs initiated this adversary proceeding on February 25, 2010. On July 27, 2010, defendants American Home Mortgage Corp. d/b/a American Brokers Conduit and AHM SV, Inc. f/k/a American Home Mortgage Servicing, Inc. filed a Suggestion of Bankruptcy in this adversary proceeding. Prior motions to dismiss were granted in part and denied in part at a hearing on September 20, 2010. Plaintiffs filed an amended complaint on November 2, 2010 (“First Amended Complaint”). The First Amended Complaint alleges six causes of action. The first cause of action is for violation of California Civil Code section 2923.5. The second cause of action is for violation of Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (“RESPA”). The third cause of action is for violation of the automatic stay of the Bankruptcy Code. The fourth cause of action is for declaratory relief. The fifth cause of action is for injunctive relief. The sixth cause of action is for cancellation of the deed of trust and other instruments and records.
On November 16, 2010, Defendants Deutsche Bank National Trust Company, Deutsche Bank National Trust Company as Trustee of the GSR Mortgage Loan Trust 2006-OA1 (“Deutsche Bank as Trustee”), and American Home Mortgage Servicing, Inc. (“AHMSI”) filed a motion to dismiss the First Amended Complaint (“First Motion to Dismiss”). On November 29, 2010, Defendants Fidelity National Title Company and Default Resolution Network filed a motion to dismiss the First Amended Complaint (“Second Motion to Dismiss”).
The First Motion to Dismiss asserts that Plaintiffs’ response to the First Motion to Dismiss should not be considered by this Court because the response is late-filed, and that Plaintiffs have failed to meet the pleading requirements of Federal Rule of Civil Procedure 8(a). Both motions to dismiss also allege that the First Amended Complaint should be dismissed on the merits for various reasons.
Regarding the purported late-filing of Plaintiffs’ response to the First Motion to Dismiss, the hearing on the First Motion to Dismiss was originally set for December 16, 2010, meaning that Plaintiffs’ response should have been filed by December 2, 2010. No such response was filed. On December 6, 2010, Plaintiffs filed an opposition to a motion for relief from stay with a caption containing this adversary proceeding’s number. On December 10, 2010, pursuant to an amended notice of hearing, the hearing on the First Motion to Dismiss was continued to January 14, 2011. Plaintiffs’ response was filed on December 30, 2010, which is timely under the local rules with respect to the continued hearing date. While Plaintiffs should abide in the future with the deadlines set out in the local rules, there is no prejudice such that the First Amended Complaint should be dismissed and the merits of Plaintiffs’ opposition ignored.
In Plaintiff’s opposition filed on December 30, 2010, Plaintiffs agreed to amend the First Amended Complaint with regard to the first, second, and third causes of action in response to the motions of defendants Fidelity National Title Company, Default Resolution Network, Deutsche Bank National Trust Company, Deutsche Bank as Trustee, and AHMSI (collectively,” Defendants”), as well as to delete the sixth cause of action. The Court held a hearing on both motions to dismiss on January 14, 2011.
At the hearing on January 14, 2011, the Court provided the parties with the Suggestion of Bankruptcy filed by American Brokers Conduit and American Home Mortgage Servicing, Inc. in this adversary proceeding and asked the parties to submit supplemental briefs regarding why the motions to dismiss should proceed notwithstanding the automatic stay of the bankruptcy case of Defendant American Brokers Conduit. The matter was continued to March 1, 2011 with the parties to file a joint statement prior to the hearing.
On February 18, 2011, the parties filed a joint statement which the Court reviewed. The Court subsequently issued an order on February 23, 2011 taking the motions to dismiss off calendar without prejudice to being restored upon the filing of appropriate legal authority and/or declarations showing that this Court can proceed notwithstanding the automatic stay in Defendant American Brokers Conduit’s bankruptcy case.
On May 2, 2011, Plaintiffs dismissed American Brokers Conduit from this adversary proceeding. The motions to dismiss were re-set for hearing on June 30, 2011 at a Case Management Conference held on May 6, 2011. The June 30, 2011 hearing was continued to July 14, 2011 by stipulation of the parties. The July 14, 2011 hearing was taken off calendar to allow the Court to issue a written decision.
Meanwhile, on May 18, 2011, attorney Mitchell Abdallah substituted in as counsel for Plaintiffs.
On July 11, 2011, Plaintiffs filed a Second Amended Complaint.[1] The Second Amended Complaint named American Brokers Conduit as a defendant and did not make any substantive changes to the third, fourth, or sixth causes of action that Plaintiffs had said would be made. The Court suggests that if Plaintiffs file another amended complaint, Plaintiffs should consider that it appears to the Court that the bankruptcy case of American Brokers Conduit, case number 07-11051, is still pending in the District of Delaware. Plaintiffs should also consider that: (1) a cause of action under the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2601-2617 (” RESPA”) should specify which section(s) of RESPA Defendants allegedly violated; and (2) Plaintiffs should allege sufficient facts about the contents of Plaintiffs’ alleged letters to AHMSI to show that the letters qualify as “qualified written requests” under RESPA.
B. FACTUAL BACKGROUND
The following facts are drawn from the First Amended Complaint, as alleged by Plaintiffs, but have not yet been proven. On or about April 4, 2006, Plaintiffs obtained a home loan and executed a promissory note in favor of American Brokers Conduit. The note was secured by a deed of trust on 411 Quail Run in Aptos, California (the “Property”). Defendant Mortgage Electronic Registration Systems (“MERS”) was listed as the beneficiary of the deed of trust, but MERS never held the note.
On February 1, 2009, Plaintiff Richard Chalgren became unable to work due to a physical disability and suffered a loss of income. Plaintiffs were unable to make the monthly payment on the note. Plaintiffs wrote letters to the loan servicer, AHMSI, requesting the name, address, and telephone number of the holder of the note and the name and address of any agent of the holder of the note which could discuss loan modification options with Plaintiffs. However, AHMSI did not respond to Plaintiffs’ letters and still, to this day, has failed to respond to Plaintiffs’ letters. The failure of AHMSI to respond caused Plaintiffs to suffer emotional distress.
On May 5, 2009, AHMSI, Default Resolution Network, and Fidelity National Title Company acted in concert to cause a notice of default to be recorded in the official records of the county of Santa Cruz. The notice of default falsely stated that Default Resolution Network had contacted Plaintiffs before the notice of default was recorded as required by California Civil Code section 2923.5.
On June 25, 2009, MERS as nominee for defendant American Brokers Conduit assigned the deed of trust to Deutsche Bank as Trustee. Kolrell Harper signed this document on June 30, 2009 as Vice President of MERS. The assignment was produced by defendant DOCX, LLC which is a subsidiary of defendant Lender Processing Services. Lender Processing Services has admitted that there were faults in the documents produced by the DOCX office and Plaintiffs are informed and believe that there was widespread document fraud.
The note was bundled into a pool of home mortgages which were securitized and sold to investors. At the time the note was assigned to the trust, the trust was closed. Also, at the time of the assignment, American Brokers Conduit was in a Chapter 11 bankruptcy proceeding, but the assignment was made without approval from the bankruptcy court overseeing the American Brokers Conduit bankruptcy case.
On July 6, 2009, an instrument was recorded in the official records of the county of Santa Cruz purporting to be an assignment of the deed of trust from MERS to Deutsche Bank National Trust Company.
On July 17, 2009, Plaintiffs sent demand letters via certified mail to Defendants pursuant to RESPA, wherein Plaintiffs requested the name of the holder of the note or the agent for such holder with authority to discuss loan modifications. Defendants have failed to respond to those demand letters, causing Plaintiffs to be unable to communicate with anyone with the authority to modify Plaintiffs’ loan and threatening Plaintiffs with the loss of Plaintiffs’ home of 15 years.
On August 14, 2009, Plaintiffs filed this chapter 13 bankruptcy petition.
On September 4, 2009, defendants Fidelity National Title Company, AHMSI, and Power Default Services acted in concert to cause a notice of trustee’s sale to be recorded in the official records of the county of Santa Cruz in violation of the automatic stay. This recordation caused Plaintiffs emotional distress.
C. LEGAL STANDARD
The Ninth Circuit has stated that the standard of review for motions to dismiss is:
The nature of dismissal requires us to accept all allegations of fact in the complaint as true and construe them in the light most favorable to the plaintiffs. However we are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not . . . necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.
The First Motion to Dismiss asserts that the First Amended Complaint fails to differentiate between Defendants in violation of Federal Rule of Civil Procedure 8 (a), as incorporated by Federal Rule of Bankruptcy Procedure 7008. The Court has reviewed the First Amended Complaint and has determined that the First Amended Complaint identifies the transactions giving rise to the causes of action and puts each Defendant on notice of each Defendant’s alleged conduct. The First Motion to Dismiss is denied on this basis.
(1) Plaintiffs’ First Cause of Action
The first cause of action is against AHMSI, Default Resolution Network, and Fidelity National Title Company for violation of California Civil Code section 2923.5. Plaintiffs assert that Default Resolution Network did not contact Plaintiffs about alternatives to foreclosure prior to recording the notice of trustee’s sale. The First Amended Complaint only requests damages for this statutory violation.
The First Motion to Dismiss asserts that Plaintiffs need to allege tender before obtaining a postponement of the foreclosure sale. However, the case of Mabry v. Superior Court, 185 Cal. App. 4th 208, 214 (2010), relied on by Defendants, explicitly held that tender was not required to postpone a foreclosure sale under California Civil Code section 2923.5. Mabry, 185 Cal. App. 4th at 213. In any event, Plaintiffs are only required to allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances existed that conditioning rescission on any tender would be inappropriate. Mangindin v. Washington Mutual Bank, 637 F. Supp. 2d 700, 706 (N.D. Cal. 2009).
However, as conceded by Plaintiffs, the remedy for a violation of California Civil Code section 2923.5 is not damages, but a postponement of the foreclosure sale to allow such communications to take place. Mabry, 185 Cal. App. 4th at 214. Because the requested damages are not available, this Court dismisses this cause of action with leave to amend.
(2) Second Cause of Action
The second cause of action is against AHMSI for violation of RESPA for failure to respond to Plaintiffs’ letters requesting information relating to the identity of the holder of the note and such holder’s authorized agent. Plaintiffs have not provided copies of the letters to this Court. The First Motion to Dismiss asserts that Plaintiffs need to specify which section of RESPA AHMSI allegedly violated, and Plaintiffs have indicated, in Plaintiffs’ opposition to that motion, that Plaintiffs plan to specify 12 U.S.C. section 2605(f)(1) in any amended complaint.
While the First Motion to Dismiss asserts that the First Amended Complaint fails to allege damages caused by AHMSI’s failure to respond, the First Amended Complaint’s statement of facts alleges that the failure of AHMSI to respond caused Plaintiffs great emotional distress. This Court notes that the courts are divided on whether emotional distress damages are recoverable under section 2605(f)(1). Compare Allen v. United Financial Mortg. Corp., 660 F. Supp. 2d 1089, 1097 (N.D. Cal. 2009), with Espinoza v. Recontrust Co., N.A., 2010 WL 2775753, *4 (S.D. Cal. July 13, 2010). However, this Court will not decide this legal issue at the pleading stage. Therefore, the cause of action is not dismissed on this basis.
The First Motion to Dismiss also asserts that Plaintiffs’ letters do not qualify as “Qualified Written Requests” under RESPA. The statute defines a Qualified Written Request as either (1) a letter saying that the account is in error, or (2) a letter requesting other information. 12 U.S.C. § 2605(e)(1)(b). The RESPA statute provides that a response is required when the letter requests information relating to the servicing of the loan. 12 U.S.C. § 2605(e) (1) (a). Servicing is defined as: “receiving any scheduled periodic payments from a borrower pursuant to the terms of any loan, . . . and making the payments of principal and interest and such other payments with respect to the amounts received from the borrower as may be required pursuant to the terms of the loan.” 12 U.S.C. § 2605(i).
While the First Motion to Dismiss asserts that Plaintiffs must allege that the letters stated that the account was in error, the statute defining what constitutes a Qualified Written Response is written in the disjunctive, and Plaintiffs have asserted that the letters contained requests for other information. This Court agrees with United States District Judge Fogel’s reading of 12 U.S.C. § 2605(e)(1)(b) found in Luciw v. Bank of America, N.A., 2010 WL 3958715, *3 (N.D. Cal. Oct. 7, 2010), which holds that a letter can be a Qualified Written Request even if the letter does not state that the account is in error. The Court notes that the statute does not clearly state that a letter is not a Qualified Written Response if the letter requests information both about the servicing of the loan and information not related to the servicing of the loan. Luciw, 2010 WL 3958715 at *3.
However, the First Amended Complaint fails to allege sufficient facts about the contents of the letters to show that Plaintiffs’ letters were related to the servicing of the loan such as to give rise to a statutory obligation by AHMSI to respond. The First Amended Complaint alleges that the letters request the identity of the holder of the note or such holder’s agent, which does not appear to relate to the receipt or application by AHMSI of periodic payments received from Plaintiffs. While Plaintiffs’ December 6, 2010 opposition to a motion for relief from stay provides a copy of the letter sent by Plaintiffs to Defendants, the Court is not considering that letter at this time because the letter was not incorporated into the First Amended Complaint.
The Court dismisses the second cause of action with leave to amend.
(3) Third Cause of Action
The third cause of action is against Fidelity National Title Company and AHMSI for violation of the automatic stay pursuant to Bankruptcy Code section 362(k). While the Second Motion to Dismiss asserts that this cause of action should be dismissed for failure to allege conduct rising to a requisite level of outrageousness, the determination of outrageousness is a factual issue, and the case relied upon in the Second Motion to Dismiss is a California state law case not involving Bankruptcy Code section 362(k).
However, both motions to dismiss assert that the First Amended Complaint fails to allege that the two defendants willfully violated the automatic stay. Bankruptcy Code section 362(k) clearly requires a willful violation. In re Bloom, 875 F.2d 224, 227 (9th Cir. 1989). The First Amended Complaint contains no allegations of willfulness and/or knowledge of the bankruptcy case on the part of Fidelity National Title Company and/or AHMSI, and Plaintiffs have indicated that Plaintiffs plan to amend the First Amended Complaint to so allege. The Court dismisses the third cause of action with leave to amend.
(4) Fourth Cause of Action
The fourth cause of action is against all Defendants for declaratory relief. The First Amended Complaint requests the following declaratory relief: (1) a finding that the deed of trust is unenforceable because the deed of trust was severed from the note, rendering the note unsecured; (2) a finding that the notice of default is void because the deed of trust was unenforceable; (3) a finding that assignment of the deed of trust to Deutsche Bank as Trustee is of no effect because the assignment was (a) made while American Brokers Conduit was in bankruptcy and (b) made after the securitized trust had closed; and (4) a finding that the notice of trustee’s sale is void for being in violation of the automatic stay. This cause of action does not request that the note and deed of trust be rescinded or otherwise set aside.
Both motions to dismiss assert that the fourth cause of action must be dismissed because the First Amended Complaint fails to allege that Plaintiffs either have tendered, or can tender, the amount of the outstanding loan balance. All but one of the cases cited by Defendants are cases in which a party requested quiet title or declaratory relief rescinding a loan contract, and those cases are not applicable.
The reasoning of Chavez v. Recontrust Co., 2008 WL 5210893 (E.D. Cal. Dec. 11, 2008), is not disposative here and this Court does not agree with it in any event. In Chavez, a plaintiff requested — among other things — an injunction against a foreclosure sale without either alleging that the plaintiff had tendered, or was able to tender, the amount outstanding on the loan. The Chavez court held: “[t]he law is long-established that a trustor or his successor must tender the obligation in full as a prerequisite to challenge of the foreclosure sale.” Chavez, 2008 WL 5210893 at *6 (quoting U.S. Cold Storage v. Great Western Savings & Loan Assn., 165 Cal. App. 3d 1214, 1222, (1985)). The quoted language is inapposite because the language of U.S. Cold Storage refers to an attempt to undo a foreclosure sale after the fact, rather than a request for declaratory relief based on a finding that a foreclosure sale cannot proceed because the wrong party is seeking to foreclose.
Notably absent from Plaintiffs’ Complaint is any allegation that they attempted to tender, or are capable of tendering, the value of the property pursuant to the rescission framework established by TILA. Nor do Plaintiffs allege that such equitable circumstances exist that conditioning rescission on any tender would be inappropriate. Thus, the Court finds that Plaintiffs have failed to adequately allege that they are entitled to rescission under TILA.
Mangindin, 637 F. Supp. 2d at 706. Thus, Plaintiffs are only required to allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances existed that conditioning rescission on any tender would be inappropriate.
The First Motion to Dismiss also asserts that the California nonjudicial foreclosure statutes do not require a foreclosing lender to produce the original copy of the note in order to foreclose. However, the First Amended Complaint does not request declaratory relief based on a finding that a foreclosure cannot take place because no party holds an original copy of the note. The First Amended Complaint seeks declaratory relief regarding whether the note is secured; whether the assignment of the note is of any legal effect; and whether the notice of trustee’s sale is void.
The First Motion to Dismiss next asserts that the First Amended Complaint fails to allege with sufficient specificity that the purported transfer of the note from American Brokers Conduit took place while American Brokers Conduit was a debtor in a bankruptcy proceeding. The First Amended Complaint clearly alleges that: “at the time of the assignment, American Broker’s Conduit was in a bankruptcy proceeding under chapter 11 of the U.S. Bankruptcy Code. Plaintiffs are informed and believe that the bankruptcy court did not authorize or approve the assignment of the deed of trust. . . .” First Amended Complaint at page 6, ¶ 20. This allegation is more than a mere threadbare recital and is sufficient to withstand this motion to dismiss. Therefore, the cause of action is not dismissed on this basis.
The First Motion to Dismiss asserts that American Brokers Conduit transferred the note and deed of trust on June 5, 2006 and provides a copy of a loan history for the property. This Court will not take judicial notice of the copy at this time because Plaintiffs have objected to the admissibility of this document and the copy was not part of an official record or court decision.
The First Motion to Dismiss also argues that — even if the deed of trust was transferred out of the bankruptcy estate of American Brokers Conduit without bankruptcy court approval — Plaintiffs have no standing to challenge the transfer. Plaintiffs assert that Plaintiffs have standing because the legal effect of the transfer directly affects Defendants’ ability to foreclose on Plaintiffs’ home. American Brokers Conduit filed for relief under chapter 11 as case number 07-11047 in the Bankruptcy Court for the District of Delaware. Bankruptcy Code section 1109(b) provides: “a party in interest . . . may raise and may appear and be heard on any issue in a case under this chapter.” 11 U.S.C. § 1109(b). The term party in interest is meant to be elastic, and whether a party is a party in interest is determined by the facts of the case. In re Amatex Corp., 755 F.2d 1034, 1042 (3d Cir. 1985). The First Amended Complaint clearly alleges that Plaintiffs have a very practical stake in the legal effectiveness of the transfer of the deed of trust. At least insofar as Plaintiffs seek to challenge that transfer, Plaintiffs’ interest in the American Brokers Conduit bankruptcy proceeding is sufficient to make Plaintiffs a party in interest.
The First Motion to Dismiss further asserts that, even if the assignment took place after American Brokers Conduit filed for bankruptcy, the assignment was in the ordinary course of business and did not require bankruptcy court approval. Under these circumstances, any assignment would be valid. 11 U.S.C. § 363(c)(1). The First Amended Complaint only alleges that the assignment was made when American Broker’s Conduit was in bankruptcy and that there was no authorization from the bankruptcy court, which is only required if the assignment was made outside of the ordinary course of business. Because the First Amended Complaint fails to allege that the assignment was not in the ordinary course of business, this Court dismisses the fourth cause of action with leave to amend with respect to the fact that the assignment from American Brokers Conduit was invalid as an unauthorized post-petition transfer from a bankruptcy debtor.
Finally, the First Motion to Dismiss asserts that the First Amended Complaint must be dismissed because Plaintiffs’ bad faith — as evidenced by Plaintiffs’ failure to tender or to make post-petition payments on the note — estops Plaintiffs from seeking equitable relief. However, the issue of Plaintiffs’ bad faith is a factual issue which this Court will not decide at the motion to dismiss stage. Also, as previously mentioned, this Court does not hold — and leaves for trial, a possible summary judgment motion or other context — Defendants’ contention that alleging tender in the particular manner that Defendants say is mandatory is a requirement to obtaining the declaratory relief sought in Plaintiffs’ First Amended Complaint. Mangindin, 637 F. Supp. 2d at 706.
For the above reasons, this Court dismisses the fourth cause of action with leave to amend only insofar as the fourth cause of action requests a finding that the assignment from American Brokers Conduit was without legal effect for being an unauthorized post-petition transfer from a bankruptcy debtor.
(5) Fifth Cause of Action
The fifth cause of action is against all Defendants for injunctive relief. Plaintiffs request an injunction against a foreclosure sale of the property. Both motions to dismiss assert that this cause of action should be dismissed because injunctive relief cannot be granted without the existence of a substantive cause of action. Shell Oil Co. v. Richter, 52 Cal. App. 2d 164, 168 (Cal. App. 1942). The First Amended Complaint has adequately pled a substantive cause of action for declaratory relief, so the motions to dismiss are denied as to the fifth cause of action.
(6) Sixth Cause of Action
The sixth cause of action is against all Defendants for cancellation of the deed of trust and other instruments and records. In Plaintiffs’ responses to both motions to dismiss, Plaintiffs have agreed to delete the sixth cause of action from future amended complaints based on Defendants’ arguments. Because, as noted earlier, Plaintiffs could allege that Plaintiffs attempted to tender — or were capable of tendering — the value of the property, or that such equitable circumstances exist that conditioning rescission on any tender would be inappropriate, this Court dismisses the sixth cause of action with leave to amend.
E. CONCLUSION
For the forgoing reasons, Defendants’ motions are granted in part with leave to amend and denied in part. Counsel for each set of moving parties shall prepare a form of order consistent with this ruling and submit the proposed order to the Court after service on counsel for Plaintiffs. The Court prefers for all counsel to sign off on the form of order.
[1] Defendants oppose Plaintiffs’ filing of the Second Amended Complaint. Plaintiffs filed the Second Amended Complaint without leave from the Court or consent from Defendants as required by Federal Rule of Civil Procedure Rule 15(a)(2), incorporated by Federal Rule of Bankruptcy Procedure Rule 7015. The Court is deciding these motions to dismiss as to the First Amended Compliant only, and not as to the Second Amended Complaint.
This involvesTywanna Thomas, who we all know worked for Lender Processing Services’ DocX.We learned a lot from the deposition of Cheryl Denise Thomasaka Tywanna’s Mother who also worked with her.
My San Antonio-
Ezequiel Martinez, a San Antonio real estate investor who helps homeowners avoid foreclosure, recently found himself in the same predicament as his clients.
Rather than simply fight to stop the foreclosure on his Live Oak investment home, Martinez filed suit against his lender, saying the mortgage should be voided because of phony loan documents and because he doesn’t think the bank can prove it owns the mortgage note.
If Martinez wins the case, he just might be done making mortgage payments on the house at 7502 Forest Fern.
“We’re not trying to get a free house,” he explained. “We’re trying to save the house from foreclosure fraud.”
_Hmmm good reason for each & every county recorder to examine his/hers private residences don’t you think?
It’s a great time for everyone!
Journal Gazette-
FORT WAYNE – Allen County Recorder John McGauley knew property documents with suspect signatures were prevalent. After all, there were so many that a year ago the nation’s largest banks had to halt foreclosures to deal with the sea of paperwork that could not be trusted.
The problem was so big it spawned a new word to describe it: “robo-signing,” meaning offices filled with low-paid workers signing documents they had never read, documents they were not qualified to sign and often signing someone else’s name.
Still, McGauley was surprised to hear that robo-signing was not limited to foreclosure documents but was being found on thousands of homeownership documents having nothing to do with seized homes.
To no surprise Alltell was part of this, if you dig deep enough you might also find they took some form with MERS.
Jax Daily Record-
After Jeff Carbiener resigned as CEO of Lender Processing Services Inc. in June for health reasons, the Jacksonville-based company promised a comprehensive search for a replacement that would take as long as necessary.
As it turns out, it didn’t have to look very far.
LPS last week named Hugh Harris to replace Carbiener. And it’s not the first time the company has turned to Harris.
LPS provides processing services to mortgage lenders through all phases of the loan process, from origination to foreclosure if the loan goes bad.
It’s a company that traces its roots back nearly half a century to a Jacksonville company called Computing & Statistical Services that was eventually bought out by Alltel Corp. in 1992.
This is a study of the DOCX mortgage assignments in just one county – Palm Beach County, FL.
In just 18 months, 1,742 such assignments were filed with a total value of mortgages of $560,239,797.
Most of these assignments transferred mortgages to residential mortgage-backed trusts.
Deutsche Bank was the number one beneficiary.
The trusts that most often used these forged documents were:
American Home Mortgage Asset Trusts American Home Mortgage Investment Trusts Soundview Home Loan Trusts Option One Mortgage Loan Trusts
and
HSI Asset Securitization Trusts
When considering also the assignments from LPS/MN and from LPS Network Law firm – David Stern – nearly $2 billion in mortgages were transferred in just 18 months in one county.
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