United States Bankruptcy Court, E.D. Arkansas, Jonesboro Division.

In re DANIEL L. JOHNSON and SUSAN D. JOHNSON, Chapter 13 Debtors.
In re TAMMY R. PEEKS, Chapter 13 Debtor.
In re TRACY L. ESTES, Chapter 13 Debtor.

Case Nos. 3:10-bk-19119, 3:11-bk-10602, 3:10-bk-16541

September 28, 2011.

MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS TO CONFIRMATION

AUDREY R. EVANS, Bankruptcy Judge

In a consolidated hearing on July 14, 2011, the Court heard the Objection to Confirmation of Plan filed by Chase Home Finance, L.L.C. (“Chase”) in the case of Daniel and Susan Johnson, Case No. 3:10-bk-19119 (the “Johnson Objection to Confirmation”); the Objection to Confirmation of Plan filed by J.P. Morgan Chase Bank, N.A. (“J.P. Morgan”) in the case of Tammy Renae Peeks, Case No. 3:11-bk-10602 (the “Peeks Objection to Confirmation”); and the Objection to Confirmation of Plan filed by Chase in the case of Tracy L. Estes, Case No. 3:10-bk-16541 (the “Estes Objection to Confirmation”) (collectively the “Objections to Confirmation”). J.P. Morgan appeared through its counsel, Kimberly Burnette of Wilson & Associates, P.L.L.C.[1] The Debtors in all three cases were represented at the hearing by Joel Hargis of Crawley & DeLoache, P.L.L.C. Kathy A. Cruz of The Cruz Law Firm, P.L.L.C., also appeared as co-counsel for the Debtor, Tracy L. Estes. At the outset of the hearing, the parties agreed that the facts of the cases were not in dispute, and that the same underlying issue of law was present in each case. For that reason, the hearings were consolidated. The Court accepted evidence and heard the arguments of counsel.[2] At the close of the hearing, the Court took the matter under advisement.

This is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This Order shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule of Procedure 7052. To the extent that any finding of fact is construed as a conclusion of law, it is adopted as such; to the extent that any conclusion of law is construed as a finding of fact, it is adopted as such. As explained herein, the Court overrules the Objections to Confirmation.

FACTS

The parties stipulated that at the time of the foreclosure proceedings at issue in these cases, neither Chase nor J.P. Morgan was “authorized to do business” in the state of Arkansas as required by § 18-50-117 of the Arkansas Statutory Foreclosure Act of 1987, Ark. Code Ann. §§ 18-50-101, et seq. (the “Statutory Foreclosure Act”). Additionally, the Court finds the following to be the facts of each case:

The Johnson Case

Chase initiated non-judicial foreclosure proceedings, through Arkansas’ Statutory Foreclosure Act, against a property owned by Daniel and Susan Johnson. On December 20, 2010, the Johnsons filed a Chapter 13 bankruptcy bringing that non-judicial foreclosure to a halt. In their bankruptcy case, the Johnsons filed a Chapter 13 plan listing Chase as a long-term secured creditor that was owed an arrearage of $7,485. On March 2, 2011, Chase filed the Johnson Objection to Confirmation claiming that the correct arrearage amount was $14,072.81. Chase filed a proof of claim in the case (the “Johnson Proof of Claim”) claiming a secured debt of $187,468.21, which included the $14,072.81 arrearage, and explained that $1,380 of the arrearage was for foreclosure fees and costs. On July 4, 2011, Chase transferred the Johnson Proof of Claim to J.P. Morgan.

The Peeks Case

J.P. Morgan initiated a non-judicial foreclosure proceeding, through Arkansas’ Statutory Foreclosure Act, against property owned by Tammy Renae Peeks. To initiate the foreclosure process, J.P. Morgan granted Wilson & Associates, P.L.L.C. (“Wilson & Associates”) a limited power of attorney authorizing Wilson & Associates to conduct the foreclosure.[3] On January 31, 2011, Ms. Peeks filed a Chapter 13 bankruptcy bringing the non-judicial foreclosure to a halt. On February 10, 2011, Ms. Peeks filed a proposed Chapter 13 plan that listed J.P. Morgan as a long-term secured creditor that was owed an arrearage of $7,500. On March 21, 2011, J.P. Morgan filed the Peeks Objection to Confirmation asserting that the correct arrearage amount was $10,089.19. J.P. Morgan filed a proof of claim in the Peeks case on July 13, 2011 (the “Peeks Proof of Claim”) claiming a secured debt of $133,172.09, which included an arrearage of $9,516.72, and explained that $2,400.02 of the arrearage was for foreclosure fees and costs.

The Estes Case

Chase initiated non-judicial foreclosure proceedings, through Arkansas’ Statutory Foreclosure Act, against a property owned by Tracy L. Estes. On September 8, 2010, Ms. Estes filed a voluntary petition for bankruptcy under Chapter 13, bringing that non-judicial foreclosure to a halt. On September 21, 2010, Ms. Estes filed a proposed Chapter 13 plan listing Chase as a long-term secured creditor that was owed an arrearage of $8,000. Chase filed the Estes Objection to Confirmation on October 20, 2010, asserting that the correct arrearage amount was $10,537.36. Chase filed a proof of claim in the Estes case on October 28, 2010 (the “Estes Proof of Claim”), claiming a secured debt of $37,041.96, which included an arrearage of $10,509.36, and explained that $2,706.56 of the arrearage was for to foreclosure fees and costs. On May 25, 2011, Chase filed an amended proof of claim adjusting the arrearage from $10,509.36 to $10,502.22. On July 14, 2011, Chase transferred the Estes Proof of Claim to J.P. Morgan.

DISCUSSION

The question before the Court is whether the Debtors owe J.P. Morgan the foreclosure fees and costs listed on its proofs of claims. The Bankruptcy Code allows a debtor in a Chapter 13 bankruptcy case to cure a default on a debt for its home mortgage through the plan. 11 U.S.C. §§ 1322(b)(3), (5). In order for that plan to be confirmed, a debtor must pay the default arrearage amount in full. The amount owed in order to cure a default is “determined in accordance with the underlying agreement and applicable nonbankruptcy law.” 11 U.S.C. § 1322(e). This determination poses two separate inquires: first, what fees and costs are allowed by the agreement between the parties, and second, what fees and costs are allowed by the applicable law. See In re Bumgarner, 225 B.R. 327, 328 (Bankr. D.S.C. 1998).

In these cases, there is no dispute that the foreclosure fees and costs are owed under the parties’ agreements because the instrument used to create each debt gives J.P. Morgan “the right to be paid back by me for all of its costs and expenses in enforcing this Note . . . .” The only question in each of these three cases is whether the foreclosure fees and costs are allowed by the controlling law. The controlling law is Arkansas’ Statutory Foreclosure Act (i.e., Arkansas’ non-judicial foreclosure procedure), and the issue is whether J.P. Morgan was qualified to use Arkansas’ non-judicial foreclosure procedure when it initiated the foreclosure proceedings against these Debtors.

The Debtors argue that J.P. Morgan was not qualified to use the non-judicial foreclosure process because § 18-50-117 of the Statutory Foreclosure Act requires an entity to be authorized to do business in Arkansas, and that J.P. Morgan was not in compliance with that requirement.

J.P. Morgan stipulated that it was not authorized to do business as is required Ark. Code Ann. § 18-50-117. Nonetheless, it maintains that it was qualified to use Arkansas’ non-judicial foreclosure process. J.P. Morgan makes three arguments in support of its position. First, J.P. Morgan argues that its compliance with § 18-50-102 of the Statutory Foreclosure Act enabled it to legitimately employ the non-judicial foreclosure process without being authorized to do business in the state as required by Ark. Code Ann. § 18-50-117. Second, J.P. Morgan argues that the authorized-to-do-business requirement is superseded by a conflicting provision in Arkansas’ Wingo Act, Ark. Code Ann. § 4-27-1501, and finally, that it is preempted by federal law through the provisions of the National Banking Act.

For the reasons discussed below, the Court finds that J.P. Morgan was not qualified to use the Arkansas non-judicial foreclosure process when it initiated the foreclosures against these Debtors. J.P. Morgan failed to comply with the authorized-to-do-business requirement of Ark. Code Ann. § 18-50-117, and nothing in Ark. Code Ann. § 18-50-102, the Wingo Act, or the National Banking Act allowed it to conduct those proceedings without meeting that requirement. Absent compliance with Ark. Code Ann. § 18-50-117, J.P. Morgan’s avenue for foreclosing on these properties was that of judicial foreclosure through the courts, not through Arkansas’ non-judicial foreclosure process. As a result, the foreclosure fees and costs incurred by Chase and J.P. Morgan are not owed by the Debtors, and need not be included in the Debtors’ repayment plans in order for those plans to be confirmed.

Finally, both parties request their attorney fees for pursuing or defending these matters. The Court finds that an award of attorney fees to the Debtors is warranted.

The Statutory Foreclosure Act

In 1987, the Arkansas legislature enacted the Statutory Foreclosure Act, which authorized the use of non-judicial foreclosure proceedings as an alternative to judicial foreclosure proceedings. Ark. Code Ann. §§ 18-50-101, et seq. See also Union Nat’l Bank v. Nichols, 305 Ark. 274, 278, 807 S.W.2d 36, 38 (1991) (“The procedure is designed to be effectuated without resorting to the state’s court system . . . .”). These statutory provisions must be strictly construed. See Robbins v. M.E.R.S., 2006 WL 3507464, at *1 (Ark. Ct. App. 2006) (“It is also true that the Arkansas Statutory Foreclosure Act, being in derogation of common law, must be strictly construed.”).[4]

The parties’ arguments are based on two provisions of the Statutory Foreclosure Act; Ark. Code Ann. § 18-50-117 and Ark. Code Ann. § 18-50-102. Each of these two provisions places a restriction on who can use Arkansas’ non-judicial foreclosure process. The first provision, Ark. Code Ann. § 18-50-117, requires a creditor to be authorized to do business in Arkansas before employing the state’s non-judicial foreclosure process. Ark. Code Ann. § 18-50-117 (“No person, firm, company, association, fiduciary, or partnership, either domestic or foreign shall avail themselves of the procedures under this chapter unless authorized to do business in this state.”) (emphasis added).[5] The second provision, Ark. Code Ann. § 18-50-102, limits who can be a party to a non-judicial foreclosure proceeding to three categories of persons or entities: (1) trustees or attorneys-in-fact, (2) financial institutions, and (3) Arkansas state agencies. See Ark. Code Ann. § 18-50-102.[6] Further, this provision requires that in order to qualify, a “trustee or attorney-in-fact” must be a licensed member of the Arkansas bar, or a law firm who employs a licensed member of the Arkansas bar. Ark. Code Ann. § 18-50-102(a)(1).

The Debtors argued that J.P. Morgan was not qualified to use the non-judicial foreclosure process because § 18-50-117 of the Statutory Foreclosure Act requires an entity to be authorized to do business in Arkansas, and J.P. Morgan stipulated that it was not in compliance with that provision. J.P. Morgan argued that it was not required to comply with Ark. Code Ann. § 18-50-117 because it authorized Wilson & Associates to conduct the foreclosures as its attorney-in-fact, pursuant to Ark. Code Ann. § 18-50-102(a)(1). This argument extends in two directions.[7]

Specifically, one extension of J.P. Morgan’s argument is that when the attorney-in-fact category of § 18-50-102 is used, the authorized-to-do-business requirement of § 18-50-117 does not apply. The Court finds no support for this argument. The language of Ark. Code Ann. § 18-50-117 is broad, specifically stating that it is applicable to every “person, firm, company, association, fiduciary, or partnership, either domestic or foreign . . . .” An emergency clause recorded in the sessions laws of Ark. Code Ann. § 18-50-117 explains the reason that the provision was enacted:

It is found and determined by the General Assembly of the State of Arkansas that foreign entities not authorized to do business in the State of Arkansas are availing themselves to [sic] the provisions of the Statutory Foreclosure Act of 1987; that often times it is to the detriment of Arkansas citizens; and that this act is immediately necessary because these entities should be authorized to do business in the State of Arkansas before being able to use the Statutory Foreclosure Act of 1987.
2003 Ark. Acts 1303, § 3, effective Apr. 14, 2003. The broad language of this provision, and the clear concerns set out in the legislative history, indicate that Ark. Code Ann. § 18-50-117 was meant to apply without regard to which category of person or entity is conducting the foreclosure under Ark. Code Ann. § 18-50-102.

Further, the Court finds nothing in the language of Ark. Code Ann. § 18-50-102 to indicate that it eliminates the need to comply with the authorized-to-do-business requirement of Ark. Code Ann. § 18-50-117, or that the attorney-in-fact party should be treated in any way different from the other categories of persons or entities allowed to conduct a non-judicial foreclosure proceeding. Further, the most recent enactment of Ark. Code Ann. § 18-50-102, now in effect, places several additional requirements on an attorney-in-fact before he can qualify as a party to a non-judicial foreclosure proceeding. In addition to the requirement that the attorney-in-fact be licensed in Arkansas (which was the law at the time of these foreclosure proceedings), an attorney-in-fact must now also have an office located in Arkansas, be accessible during business hours, and be able to accept funds as payment on the subject mortgage. See 2011 Ark. Acts 901, § 2, effective July 27, 2011. These recent additional restrictions to the attorney-in-fact qualification provide further evidence of the Arkansas legislature’s intent to limit access to the Statutory Foreclosure Act, not to further broaden access to that process as J.P. Morgan’s argument would necessarily require.

A second extension of J.P. Morgan’s argument is that, even if Ark. Code Ann. § 18-50-117 applies, J.P. Morgan satisfied the authorized-to-do-business requirement because its attorney-in-fact, Wilson & Associates, satisfied that requirement. This argument also fails. The procedures for appointing an attorney-in-fact to conduct the foreclosure are self-contained within the § 18-50-102 of the Statutory Foreclosure Act. This appointment is accomplished through the use of a power of attorney. Ark. Code Ann. § 18-50-102(e) (“The appointment of an attorney-in-fact by a mortgagee shall be made by a duly executed, acknowledged, and recorded power of attorney . . . .”). That power of attorney provides the attorney-in-fact only with those powers held by the appointing mortgagee. Ark. Code Ann. 18-50-102(d) (“A mortgagee may delegate his or her powers and duties under this chapter to an attorney-in-fact, whose acts shall be done in the name of and on behalf of the mortgagee.”) (emphasis added).

J.P. Morgan appointed Wilson & Associates as its attorney-in-fact through a limited power of attorney. Wilson & Associates did not initiate the foreclosure proceedings on its own behalf, but initiated those proceedings “in the name of and on behalf of” J.P. Morgan. It is J.P. Morgan’s compliance with the authorized-to-do-business requirement that is relevant, not that of Wilson & Associates. Thus, the Court finds that J.P. Morgan’s compliance with Ark. Code Ann. § 18-50-102 by electing to use an attorney-in-fact did not, by substitute, afford it compliance with the authorized-to-do-business requirement in Ark. Code Ann. § 18-50-117.

Therefore, J.P. Morgan has failed to show that its compliance with § 18-50-102 of the Statutory Foreclosure Act enabled it to legitimately employ the non-judicial foreclosure process without being authorized to do business in the state.

The Wingo Act

J.P. Morgan argues that a conflict between the Wingo Act (Ark. Code Ann. §§ 4-27-1501, et seq.), and the Statutory Foreclosure Act (Ark. Code Ann. §§ 18-50-101, et. seq.), allows J.P. Morgan to conduct non-judicial foreclosures without complying with the authorized-to-do-business requirement found in § 18-50-117 of the Statutory Foreclosure Act.

The Wingo Act is a sub-provision of the Arkansas Business Corporation Act, found at Ark. Code Ann. §§ 4-27-101, et seq. The Wingo Act states that “[a] foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.” Ark. Code Ann. § 4-27-1501(a). However, the Wingo Act also contains a non-exhaustive list of actions that do not constitute transacting business. Ark. Code Ann. § 4-27-1501(b). This list includes, among other things, the acts of “[m]aintaining, defending, or settling any proceeding[,]” and “[s]ecuring or collecting debts or enforcing mortgages and security interests in property securing the debts[.]” Ark. Code Ann. §§ 4-27-1501(b)(1), (8).

J.P. Morgan asserts that a conflict exists between the Wingo Act and the Statutory Foreclosure Act because the Wingo Act does not require a creditor to be authorized to do business in order to collect on its debt; the Statutory Foreclosure Act does. J.P. Morgan argues that the Wingo Act controls this conflict, and thus, the authorized-to-do-business requirement of the Statutory Foreclosure Act does not apply.

It is a well-settled principle of construction that where two statutes conflict, the more specific statutory provision controls. See Ozark Gas Pipeline Corp. v. Arkansas Public Service Comm’n, 342 Ark. 591, 602, 29 S.W.3d 730, 736 (2000) (“The rule is well settled that a general statute must yield when there is a specific statute involving the particular matter.”). The exclusions afforded in the Wingo Act address the broad category of “[s]ecuring or collecting debts or enforcing mortgages and security interests . . . .” Ark. Code Ann. § 18-27-1501(b)(8). The Statutory Foreclosure Act, on the other hand, deals with a specific type of collection activity — foreclosure — and an even more specific type of foreclosure — non-judicial foreclosure. Given the greater specificity of Ark. Code Ann. § 18-50-117, the Court finds that the Statutory Foreclosure Act provision carves out the specific statutory procedure of non-judicial foreclosure from the broad category of collecting debts, and as a result, controls any conflict between the two provisions.

Further, J.P. Morgan’s argument ignores the other provisions of the Wingo Act . The provision immediately following the exclusionary provision states that the consequence of transacting business without a certificate of authority is: (1) the foreign corporation is prohibited from maintaining a cause of action in the state courts, and (2) the foreign corporation must pay a monetary penalty. Ark. Code Ann. §§ 4-27-1502(a), (d)(1)(A).[8] As such, the exclusions allowed by § 4-27-1501(b) of the Wingo Act enable a foreign corporation to conduct some activities (including collection activities) without being subject to the consequences found in § 4-27-1502. In other words, under the Wingo Act, a foreign corporation can bring a cause of action in the Arkansas courts in furtherance of its collection activities, without a certificate of authority and without being subject to monetary penalty. This, however, is the full effect of the Wingo Act’s exclusionary provision. While it is true that J.P. Morgan was not required to obtain a certificate of authority in order to collect on its debts in Arkansas under the Wingo Act, it was required to do so if it wanted to employ Arkansas’ non-judicial foreclosure process. J.P. Morgan’s extension of the Wingo Act exclusions to the Statutory Foreclosure Act is far too broad.

Finally, during the hearing, J.P. Morgan argued that Omni Holding and Development Corp. v. C.A.G. Investments, Inc., 370 Ark. 220, 258 S.W.3d 374 (2007), establishes authority for its position. In Omni, a creditor filed a lawsuit against Omni seeking a judgment on its promissory note and claiming that Omni had committed an unlawful detainer of its property. In response, Omni claimed the creditor lacked standing because it did not have a certificate of authority. The Arkansas Supreme Court held that the creditor did not need a certificate of authority because its actions fell within the Wingo Act exclusion for collection activities. See Omni Holding and Development Corp., 370 Ark. at 226. Consistent with the Court’s determination above, the holding in Omni only stands for the proposition that a creditor can file a lawsuit in furtherance of collection activities without a certificate of authority. Id. (“Thus, C.A.G. was not `transacting business’ in Arkansas and its failure to obtain a certificate of authority did not prevent C.A.G. from filing suit in the state.”) (emphasis added). Under the Wingo Act exclusions, J.P. Morgan was allowed to foreclose on these properties through a judicial foreclosure action in the state court, but it was prohibited from using the state’s non-judicial foreclosure process. Omni does not support J.P. Morgan’s argument.

Therefore, the Court finds that no conflict exists between the Wingo Act and the Statutory Foreclosure Act, and to the extent that any conflict is present the more precise provision of the Statutory Foreclosure Act controls.

The National Banking Act

Finally, J.P. Morgan maintains that federal legislation preempts the requirement in Arkansas’ Statutory Foreclosure Act that a bank be authorized to do business in Arkansas before it employs the state’s non-judicial foreclosure process.

The federal law presented as having preemptive authority in this case is the National Banking Act (“NBA”). A brief review of the text, history, and purpose of the NBA is essential to the task of analyzing its preemptive effect. In 1864, Congress placed into law an act that established a national banking system. An Act to Provide a National Currency Secured by a Pledge of United States Bonds, and to Provide for the Circulation and Redemption Thereof, ch. 106, 13 Stat. 99 (1864) (codified as amended at 12 U.S.C. §§ 1 et seq.). Today, that system of laws remains largely intact, and has been renamed the National Banking Act. 12 U.S.C. § 38. See also Watters v. Wachovia Bank, N.A., 550 U.S. 1, 10-11, 127 S.Ct. 1559, 1566, 167 L.Ed.2d 389 (2007). The purpose of the national banking act is to prevent the “[d]iverse and duplicative superintendence of national banks” by the differing laws of the individual states. Watters, 550 U.S. at 13-14. See also Easton v. State of Iowa, 188 U.S. 220, 229, 23 S.Ct. 288, 290, 47 L.Ed. 452 (1903) (describing the goal of the NBA as “the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the states.”).

Preemption occurs under Article VI of the Constitution, the Supremacy Clause, which provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A determination of whether a state law is preempted by federal law “start[s] with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). A determination as to the congressional purpose of a law is the “ultimate touchstone” of any preemption analysis. Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963); Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 30, 116 S.Ct. 1103, 1107 (1996) (“This question is basically one of congressional intent. Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State? If so, the Supremacy Clause requires courts to follow federal, not state, law.”).

Congressional intent to preempt a state law is typically derived from the language, structure, or purpose of the federal statute. See Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). Accordingly, preemption is classified into three different categories: express preemption, field preemption, and conflict preemption. See Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1721-22, 75 L.Ed.2d 752 (1983). See also Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 543, 172 L.Ed.2d 398 (2008).

Express preemption exists where Congress’s intent to preempt the state law is clearly stated in the language of the federal statute. See Pacific Gas & Elec. Co., 461 U.S. at 203. However, more often than not, Congress does not make such an explicit manifestation of its intent. See Watters v. Wachovia Bank, N.A., 550 U.S. 1, 33, 127 S.Ct. 1559, 1579, 167 L.Ed.2d 389 (2007) (Stevens, J., dissenting). In the absence of such an explicit expression, the courts must determine whether the statutory provision implies a preemptive intent by evaluating the structure and purpose of the statute. See Barnett Bank of Marion County, N.A., v. Nelson, 517 U.S. 25, 32, 116 S.Ct. 1103, 1108, 134 L.Ed.2d 237 (1996). These implied forms of preemption are referred to as field preemption and conflict preemption, respectively. Id. Field preemption exists if the structure of the statute represents a “scheme of federal regulation . . . so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. at 230. Alternatively, conflict preemption exists where the purpose of the federal law conflicts with the state law. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981) (“It is basic to this constitutional command that all conflicting state provisions be without effect.”). Conflict preemption arises under two different scenarios. The first scenario, referred to as physical impossibility preemption, is when it is physically impossible to comply with both the federal law and the state law at the same time. See Pacific Gas & Elec. Co., 461 U.S. at 204; In re Bate, 2011 WL 2473493, at *2-4 (Bankr. M.D. Fla. June 22, 2011). The second scenario, referred to as obstacle preemption, is when the “state law stands as an obstacle to achieving the objectives of Congress.” Id.

In these cases, there is no real question that express preemption does not apply. There is no specific provision in the NBA clearly stating a congressional intent to preempt state laws regarding non-judicial foreclosure, or moreover, state laws requiring a person or entity to be authorized to do business in the state before employing the non-judicial foreclosure process. Thus, the NBA does not expressly preempt the authorized-to-do-business requirement of the Statutory Foreclosure Act.

Field preemption is also inapplicable. The Supreme Court has specifically identified the activities of the “acquisition and transfer of property,” and the “right to collect their debts,” as areas where banks are generally subject to state law. Watters, 550 U.S. at 11; McClellan, 164 U.S. at 357. Additionally, regulations promulgated by the Office of the Comptroller of Currency (the “OCC”) save certain areas of state law from general preemption by the NBA.[9] See Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 282 (6th Cir. 2009). Those regulations state that state laws on the subjects of the “rights to collect debts[,]” and the “[a]cquisition and transfer of property[,]” are not inconsistent with the national bank’s real estate lending powers, provided those state laws only “incidentally affect” the bank’s exercise of its powers. 12 C.F.R. §§ 34.4, 7.4007(c), 7.4008(e). The collection of debts and transfers of property are the specific types of activities dealt with by the state law in question, the Statutory Foreclosure Act. Thus, the Court is not persuaded that the NBA’s occupation of these areas is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” As a result, field preemption does not apply.

As previously mentioned, conflict preemption is found in two different forms: physical impossibility preemption and obstacle preemption. The first of these types, physical impossibility preemption, is not present in this case. It is not “physically impossible” for J.P. Morgan to comply with the requirements of both the NBA and the authorized-to-do-business requirement of the Statutory Foreclosure Act. Such a scenario might exist if, for example, a provision of the NBA prohibited national banks from being certified to transact business within a state. It might then be physically impossible for J.P. Morgan to comply with both the NBA’s requirement and the authorized-to-do-business requirement of the Statutory Foreclosure Act. However, no such provision is found in the NBA, and as a result, physical impossibility preemption does not apply.

The remaining determination is whether obstacle preemption applies. This determination turns on whether the authorized-to-do-business requirement of the Statutory Foreclosure Act “stands as an obstacle to achieving the objectives of Congress.” Pacific Gas & Elec. Co., 461 U.S. at 204. A state law stands as an obstacle to a federal law when it significantly interferes with the objectives of that federal law. Barnett, 517 U.S. at 33; Watters, 550 U.S. at 12. As previously stated, Congress’s objective in creating the NBA was to prevent the”[d]iverse and duplicative superintendence of national banks” by the differing laws of the individual states. In order to accomplish that objective, the NBA vests national banks with certain enumerated powers. 12 U.S.C. § 24.[10] Those enumerated provisions provide national banks with “all such incidental powers as shall be necessary to carry on the business of banking . . . .” 12 U.S.C. § 24 (Seventh). Additionally, Congress has given national banks the authority to “make, arrange, purchase or sell loans or extensions of credit secured by liens on interest in real estate . . . .” 12 U.S.C. § 371. See also Watters, 550 U.S. at 18 (stating that mortgage lending is one aspect of the “business of banking”).

The question is whether the burden of the requirement that a bank be authorized to do business in Arkansas before using the non-judicial foreclosure process significantly impairs the bank’s ability to conduct its business of banking, which includes its rights to hold and enforce mortgage liens. The Court finds that it does not. Obviously, the Statutory Foreclosure Act requirement places some measure of burden on a national bank holding a mortgage on property in Arkansas if it wants to foreclose on that property through the state’s non-judicial foreclosure process. However, a bank’s failure (or refusal) to comply with the Statutory Foreclosure Act requirement leaves the bank with the option of foreclosing on a property through the state’s judicial process. On that point, the Statutory Foreclosure Act specifically states that “[t]he procedures set forth in this chapter for the foreclosure of a mortgage or deed of trust shall not impair or otherwise affect the right to bring a judicial action to foreclose a mortgage or deed of trust.” Ark. Code Ann. § 18-50-116(a). While this alternative method of collection (judicial foreclosure) may not be as efficient as the non-judicial foreclosure process, the Court finds that it does not significantly impair the bank’s ability to collect on its debt.[11]

Moreover, the process of judicial foreclosure is available in all states, while only approximately 60 percent of the states allow non-judicial foreclosures. See Grant S. Nelson, Reforming Foreclosure: The Uniform Nonjudicial Foreclosure Act, 53 Duke L.J. 1399, 1403 (2004).[12] J.P. Morgan’s contention that the provisions of the NBA are significantly impaired by the authorized-to-do-business requirement is undermined by the fact that only slightly more than half of the states authorize such a procedure at all. The Court finds that the powers conferred to J.P. Morgan under the NBA are not significantly impaired by the Statutory Foreclosure Act’s requirement that J.P. Morgan be authorized to do business in Arkansas, and as a result, conflict preemption does not apply.

For the foregoing reasons, the Court finds that the Statutory Foreclosure Act’s requirement that a person or entity be authorized to do business in the state is not preempted by the NBA. As a result, the Court finds that J.P. Morgan was not in compliance with the Statutory Foreclosure Act, and that the Debtors do not owe, nor must they pay, J.P. Morgan for any fees and costs incurred through the non-judicial foreclosure proceedings conducted against these Debtors.

Attorney Fees

Both parties have asked for an award of attorney fees. As a general rule, known as the “American rule,” the parties to litigation must pay their own attorney fees. In re Hunter, 203 B.R. 150, 151 (Bankr. W.D. Ark. 1996). However, certain exceptions to this rule exist, one of which is found in Ark. Code Ann. § 16-22-308, which states,

In any civil action to recover on an open account, statement of account, account stated, promissory note, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
Ark. Code Ann. § 16-22-308. Under Arkansas law, an award of prevailing party attorney fees under this statute are permissive and discretionary. In re Cameron, No. 4:10-bk-14987, 2011 WL 1979503, at *6 (Bankr. E.D. Ark. May 17, 2011).

This action was brought by the Debtors to determine whether they owed the foreclosure fees and costs incurred by J.P. Morgan in conducting non-judicial foreclosure proceedings on its promissory notes. The Debtors are the prevailing party in these matters, and as such, the Court awards the Debtors a reasonable amount for their attorney fees. Counsel for the Debtors shall submit a separate application for those fees to the Court, as further ordered below.

CONCLUSION

For the foregoing reasons, the Court concludes that J.P. Morgan was not in compliance with the authorized-to-do-business requirement of the Statutory Foreclosure Act when it conducted the foreclosures against these Debtors. Additionally, the Court has determined that J.P. Morgan’s failure to comply with Ark. Code Ann. § 18-50-117 was not cured by empowering an attorney-in-fact under Ark. Code Ann. § 18-50-102, was not superceded by the Wingo Act, and was not preempted by the National Banking Act. As a result, the foreclosure fees and costs incurred by Chase and J.P. Morgan are not owed by the Debtors, and need not be included in the Debtors’ repayment plans in order for those plans to be confirmed.

Further, the Court has determined that the Debtors should be awarded their attorney fees incurred in pursuing these actions.

Therefore, it is hereby

ORDERED that the Objections to Confirmation are OVERRULED; it is further,

ORDERED that the Defendant shall pay the reasonable attorney fees incurred by the Debtors in pursuing these actions. The Court will determine the amount of this award on further application by Debtors’ Counsel, which shall include an itemization of the attorney fees incurred in these actions. This application must be filed with the Court within 14 days of the entry of this Order, and shall be served on Counsel for J.P. Morgan. J.P. Morgan shall have 14 days from the date that fee application is filed with the Court in which to file a response, should it wish to do so.

IT IS SO ORDERED.

[1] Although the objections to confirmation were filed by two separate creditors, J.P. Morgan and Chase, as of the date of the hearing all of the claims at issue in this matter had been transferred to J.P. Morgan.

[2] The Court also takes judicial notice of all filings and records in these cases, including the proofs of claim. See Fed. R. Evid. 201; In re Henderson, 197 B.R. 147, 156 (Bankr. N.D. Ala. 1996) (“The court may take judicial notice of its own orders and of records in a case before the court, and of documents filed in another court.”) (citations omitted); see also In re Penny, 243 B.R. 720, 723 n.2 (Bankr. W.D. Ark. 2000).

[3] J.P. Morgan only presented the limited power of attorney filed in the property records for the Peeks case, but J.P. Morgan’s counsel represented to the Court that a similar limited power of attorney was granted and recorded in the property records for each of the three cases.

[4] The Court notes that counsel for the Debtors argued that a determination that the statute had been violated would make any sale under the Statutory Foreclosure Act void ab initio. No property sales actually resulted from the foreclosure proceedings in these cases. The sole dispute in these cases is whether the foreclosure fees and costs incurred through use of Arkansas’ non-judicial foreclosure process are owed.

[5] The Court notes that no explanation is provided by the statute regarding what action is required in order to be authorized to do business under Ark. Code Ann. § 18-50-117. Following a review of other provisions within the Arkansas Code, it appears that this requirement generally demands that a party obtain a certificate of authority from the secretary of state. See Ark. Code Ann. § 23-48-1003 (“A certificate of authority authorizes the out-of-state bank to which it is issued to transact business in the state . . . .”); Ark. Code Ann. § 4-27-1501 (“A foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.”). However, no such determination is necessary in these cases because J.P. Morgan stipulated that it was not so authorized.

[6] J.P. Morgan did not argue that it met the requirements of the Statutory Foreclosure Act because it was a “financial institution.” Nonetheless, the Court notes that even if J.P. Morgan qualified as a financial institution under Ark. Code Ann. § 102, it would still be required to comply with the fundamental statutory requirement of Ark. Code Ann. § 18-50-117 for the same reasons discussed herein with regard to its use of an attorney-in-fact.

[7] J.P. Morgan did not provide the Court with the analytical extensions needed to support its argument. As a result, the Court has analyzed all possible extensions of that argument, which include (1) that because J.P. Morgan authorized an attorney-in-fact to conduct the foreclosure, Ark. Code Ann. § 18-50-117 did not apply, or (2) that because J.P. Morgan authorized Wilson & Associates to conduct the foreclosure it satisfied the requirement of Ark. Code Ann. § 18-50-117.

[8] Ark. Code Ann. § 04-27-1502 is titled the “[c]onsequences of transacting business without authority,” and states that:

(a) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.

. . .

(d)(1)(A) A foreign corporation that transacts business in this state without a certificate of authority shall pay a civil penalty to the state for each year and partial year during which it transacts business in this state without a certificate of authority.

Ark. Code Ann. § 4-27-1502.

[9] In many cases, the OCC regulatory interpretations are entitled to substantial deference, commonly known as Chevron deference. Investment Co. Institute v. Camp, 401 U.S. 617, 626-27, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971) (“It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute.”).

[10] J.P. Morgan did not direct the Court to any specific provision of the NBA to support its argument that the authorized-to-do-business requirement creates an obstacle to achieving Congress’s objectives. Nonetheless, the Court’s review of the NBA has identified several powers granted to national banks that extend to such an argument.

[11] The Court also notes that all a national bank must do in order to meet the requirements of Ark. Code Ann. § 18-50-117 is become authorized to do business in the state.

[12] A list of the types of foreclosure allowed by each state is available at http://www.realty trac.com/foreclosure-laws/foreclosure-laws-comparisons.asp (last visited Sept. 12, 2011).

Marie McDonnell, President of McDonnell Property Analytics, Inc., and a pioneer in exposing fraudulent and illegal practices in the mortgage industry through her forensic audits, today commends Attorney General Martha Coakley and her staff for filing a comprehensive lawsuit against Bank of America Corp., Wells Fargo & Co., J.P. Morgan Chase & Co., Citigroup, Ally Financial Inc., MERS and MERSCORP, Inc.

“Today, AG Coakley took strong and decisive action to enforce the rule of law and obtain meaningful
relief for Massachusetts consumers. As someone who has worked extensively with homeowners who
have faced the threat of foreclosure due to unforeseen circumstances such as illness and job loss, or
because they were intentionally victimized by these banks for profit motives, I feel it is imperative that
the banks be held responsible for the damage they have caused to people’s lives, their communities and
the Commonwealth at large. I applaud AG Coakley for having the courage to stand up to these rogues
and hold them accountable for what they have done, and I look forward to the relief and restitution that
this will bring families moving forward.”

McDonnell was tapped by John O’Brien, Register of the Essex Southern District Registry of Deeds in
Salem, to perform an in-depth forensic examination of assignments of mortgage recorded during 2010
to and from JPMorgan Chase Bank, N.A., Wells Fargo Bank, N.A., and Bank of America, N.A. to test the
transparency and integrity of his registry. The audit gained national attention and uncovered massive
fraud and defects in title, such as:

• · Only 16% of all mortgage assignments examined are valid

• · 75% of all assignments examined are invalid and 8.7% are questionable

• · 27% of the invalid assignments are fraudulent, 35% are “robo-signed” and 10% violate the

Massachusetts Mortgage Fraud Statute.

• · 683 assignments are missing, translating to approximately $180,000 in lost recording fees per

1,000 mortgages whose current ownership can be traced.

The audit also revealed the pervasive role of MERS in the mortgage industry:

• · 46% of mortgages are MERS registered

• · 47% are owned by Government Sponsored Enterprises (Fannie Mae, Freddie Mac, Ginnie Mae)

• · Typically ownership of these mortgages is obscure

One little-known fact revealed by McDonnell’s audit is that when JPMorgan Chase Bank, N.A., Wells
Fargo Bank, N.A. and Bank of America, N.A. issue mortgage loans directly to consumers, they do not
register them into the MERS System. McDonnell also found that these banks do not record interim
assignments of mortgage and are in large part responsible for corrupting the chain of title in John
O’Brien’s registry.

McDonnell’s audit supports Attorney General Coakley’s allegations that these banks committed unlawful
foreclosures and engaged in deceptive practices.

McDonnell Property Analytics has and will continue to assist individual homeowners facing foreclosure
and the attorneys who represent them.

[ipaper docId=74648926 access_key=key-hy53up5vs4or89m2vcw height=600 width=600 /]

SO WHAT WHO CARES… There are credit unions!

Mass AG: “In this state, banks must follow laws. It appears GMAC acknowledges it has a problem following those laws & being held accountable.”

WSJ-

GMAC Mortgage, the mortgage lender of Ally Financial Inc., is exiting the vast majority of its lending in Massachusetts a day after the state sued it over its foreclosure practices.

The nation’s fifth-largest mortgage originator said it “has taken this action because recent developments have led mortgage lending in Massachusetts to no longer be viable,” ratcheting up the high-stakes mortgage fight there.

Attorney General Martha Coakley sued the five biggest mortgage servicers Thursday, in the first government lawsuit targeting all five for alleged improper foreclosure practices including so-called robo-signing. The practice involves people who allegedly signed many foreclosure documents …

[WALL STREET JOURNAL]

“The single most important thing we can do to return to a healthy economy is to address this foreclosure crisis,” said AG Coakley.  “Our suit alleges that the banks have charted a destructive path by cutting corners and rushing to foreclose on homeowners without following the rule of law. Our action today seeks real accountability for the banks illegal behavior and real relief for homeowners.”

Abigail C. Field-

The posse of Wall Street Sheriffs just got bigger: Massachusetts Attorney General Martha Coakley joined Nevada Attorney General Catherine Cortez Masto, New York Attorney General Eric Schneiderman and Delaware Attorney General Beau Biden. AG Coakley’s effort is the most comprehensive to date by far, in that she sues five major banks (Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally) and MERS for unlawful and deceptive conduct. (AG Masto still retains the title as the only AG bold enough to indict people.) Her suit does not include all the kinds of claims other AGs have alleged, however, and some of the claims are uniquely provable under Massachusetts law.

[REALITY CHECK]

First Comprehensive Lawsuit to Address Foreclosure Crisis Seeks to Hold Banks Accountable For Illegal and Deceptiv

Bank of America, Wells Fargo, JP Morgan Chase, Citi, and GMAC All Named As Defendants; Mortgage Electronic Registration System (“MERS”) Also Sued 

BOSTON – Five national banks have been sued in connection with their roles in allegedly pursuing illegal foreclosures on properties in Massachusetts as well as deceptive loan servicing, Attorney General Martha Coakley announced today.  The lawsuit was filed today in Suffolk Superior Court against Bank of America, Wells Fargo, JP Morgan Chase, Citi, and GMAC.  It also names Mortgage Electronic Registration System, Inc. (“MERS”) and its parent, MERSCORP Inc., as defendants.

“The single most important thing we can do to return to a healthy economy is to address this foreclosure crisis,” said AG Coakley.  “Our suit alleges that the banks have charted a destructive path by cutting corners and rushing to foreclose on homeowners without following the rule of law. Our action today seeks real accountability for the banks illegal behavior and real relief for homeowners.”

In the complaint  , the Attorney General alleges these five entities engaged in unfair and deceptive trade practices in violation of Massachusetts’ law by:

• Pervasive use of fraudulent documentation in the foreclosure process, including so-called “robo-signing”;
• Foreclosing without holding the actual mortgage (“Ibanez” violations);
• Corrupting Massachusetts’ land recording system through the use of MERS;
• Failing to uphold loan modification promises to Massachusetts homeowners.

USE OF FALSE DOCUMENTS TO EXPEDITE FORECLOSURES “ROBO-SIGNING”:

According to the complaint, the banks used false documentation in the foreclosure process, including so-called “robo-signing”, whereby bank personnel signed affidavits that were untrue, or not based on the signor’s actual knowledge.  An entity wishing to foreclose on a property must demonstrate it has filed an affidavit in compliance with Massachusetts law.  By  October 2010, the banks’ flagrant disregard of affidavit and notary process requirements became widely known.  Filings with various Registers of Deeds provided to the Attorney General’s Office revealed the pervasive use of mortgage service employees to sign hundreds of affidavits and sworn statements without personal knowledge of the information contained in those affidavits.   Evidence also suggests these practices were not confined to the foreclosure process, but also used in the assignment, transfer and modification of mortgages secured by property in Massachusetts.

FORECLOSING WITHOUT LEGAL AUTHORITY “IBANEZ VIOLATIONS”:

Second, these five entities participated in unlawful foreclosures when they commenced foreclosures on mortgages where they were not the holders of those mortgages.  The Supreme Judicial Court (SJC), in Commonwealth v Ibanez, recently upheld Massachusetts law and stated that “only the present holder of a mortgage is authorized to foreclose on the mortgaged property.”  The complaint alleges that these entities ignored this fundamental legal mandate and proceeded to foreclosure even though they did not hold the mortgage, and thus had no legal authority to conduct the foreclosure.  The banks’ failure to obtain a valid assignment of the mortgage prior to foreclosure has adversely impacted titles to hundreds, if not thousands, of properties in the Commonwealth.  The complaint alleges that the banks falsely claimed to be the holder of a mortgage in several foreclosure documents even though they failed to obtain a valid assignment of the mortgage.

UNDERMINING PUBLIC RECORDS “MERS”:

Third, the complaint alleges that these banks have undermined our public land record system through the use of MERS, a private electronic registry system.  According to the complaint, the creation and use of MERS was adopted by these defendants primarily to avoid land registration and recording requirements, including payment of recording and registration fees, and to facilitate sales of mortgage loans.  The use of MERS has resulted in a lack of transparency as to the entities that have the legal authority to enforce mortgages, and unfairly conceals from borrowers the true identity of the holder of the debt.  Since 1997, more than 63 million home loans have been registered on the MERS System, accounting for more than 60 percent of all newly-originated mortgage loans.  The complaint also alleges that through the use of the MERS system, the banks unlawfully failed to register assignments of mortgages and transfers of the beneficial interests in mortgages.

MISREPRESENTING LOAN MODIFICATION PROGRAMS:

Finally, the complaint alleges the banks deceived and misrepresented to borrowers the process, requirements, and availability of loan modifications.   The banks publically claimed to be engaged in widespread loan modifications aimed at preserving home ownership and avoiding unnecessary foreclosures.   Through the National Homeownership Retention Program, which commenced on November 6, 2008, these banks represented that they would work with borrowers to help them avoid unnecessary foreclosures by reducing monthly mortgage payments to affordable and sustainable levels.  The complaint alleges these banks misled borrowers about their eligibility for this program and the amount of relief available, failed to achieve a significant level of modifications, and often strung along borrowers for months in trial modifications that were ultimately rejected. 

The AG’s lawsuit seeks civil penalties, restitution for harm to borrowers and compensation for registration fees that were avoided. The lawsuit also seeks to hold the banks accountable through permanent injunctive relief to provide a solution for prior unlawful foreclosures and to require that the banks, going forward, register assignments and other documents in accordance with Massachusetts law.

The lawsuit follows more than a year of negotiations with the banks over a 50-state settlement focused around the issues of fraudulent documents, including “robo-signing.”  AG Coakley had made clear that she would not sign on to an agreement with the banks if it included broad liability release regarding MERS and other issues or if she did not believe the banks had come to the table with an offer in the best interest of Massachusetts.

AG Coakley’s office has been a national leader in holding banks and investment giants accountable for their roles in the economic crisis.  AG Coakley has obtained recoveries from Morgan Stanley, Goldman Sachs, Royal Bank of Scotland, Countrywide, Fremont Investment & Loan, Option One, and others on behalf of Massachusetts homeowners.  As a result of these actions, her office has recovered more than $600 million in relief for investors and borrowers, helped keep more than 25,400 people in their homes, and returned nearly $60 million in taxpayer funds back to the Commonwealth.

More information about AG Coakley’s work during the lending crisis can be found here  .

The lawsuit is being handled by Attorney General Martha Coakley’s Consumer Protection Division, including Assistant Attorneys General Amber Villa, John Stephan, Sara Cable, and Justin Lowe; Acting Division Chief David Monahan; Chris Barry-Smith, Chief of the Public Protection & Advocacy Bureau and Stephanie Kahn, Deputy Chief of the Public Protection & Advocacy Bureau.

######################

[ipaper docId=74404114 access_key=key-1am5u5umyvfcaay5kqzo height=600 width=600 /]

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK COUNTY SUPERIOR COURT DEPART

COMMONWEALTH OF MASSACHUSETTS
PLAINTIFF

vs.

BANK OF AMERICA, NA., BAC HOME
LOANS SERVICING, LP, BAC GP, LLC,
JPMORGAN CHASE BANK, N.A:, CrrIBANK,
NA., CITIMORTGAGE, rNC., GMAC
MORTGAGE, LLC, WELLS FARGO BANK,
N.A., MORTGAGE ELECTRONIC
REGISTRATION SYSTEK INC„ and
MERSCORP, INC.,
DEFENDANTS

[ipaper docId=74404114 access_key=key-1am5u5umyvfcaay5kqzo height=600 width=600 /]

Developing Story… Come Back and check real soon!

WE SAW THIS COMING!

WILL NEW YORK BE NEXT?

.

.

 The Commonwealth of Massachusetts

Office of the Attorney General

ONE ASHBURTON PLACE

BOSTON, MASSACHUSETTS 02108

(617) 727-2200

 (617) 727-4765 TTY

www.mass.gov/ago

FOR IMMEDIATE RELEASE:                                           MEDIA CONTACT:

December 1, 2011                                                                  Press Office

                                                                                                (617) 727-2543

MEDIA ADVISORY

AG COAKLEY TO HOLD PRESS CONFERENCE TO ANNOUNCE NATION’S FIRST COMPREHENSIVE LAWSUIT AGAINST 5 NATIONAL BANKS TO ADDRESS FORECLOSURE CRISIS

Files Suit After More Than Year of 50-State Negotiations

WHAT:           Massachusetts Attorney General Martha Coakley will hold a press conference this afternoon to announce that her office has filed the nation’s first comprehensive lawsuit against the five major national banks regarding the foreclosure crisis.  The lawsuit was filed today in Suffolk Superior Court against Bank of America, Wells Fargo, JP Morgan Chase, Citi, and Ally Financial.  It also names Mortgage Electronic Registration System, Inc. and its parent, MERSCORP Inc, as defendants. 

The AG’s lawsuit seeks accountability for the banks’ unlawful and deceptive conduct in the foreclosure process, including unlawful foreclosures, false documentation and robo-signing, MERS, and deceptive practices related to loan modifications.

WHO:             Massachusetts Attorney General Martha Coakley

WHEN:          TODAY at 1:00 PM              

WHERE:     Massachusetts Attorney General’s Office

   One Ashburton Place

                        20^th Floor

                        Boston, MA   

CALL IN:       For those who cannot attend the press conference, you may listen to the audio by dialing into the conference number below. A prompt will then ask you for the Access Code. Please note that you will not be able to ask questions via the conference line.

PHONE NUMBER     877-820-7831

ACCESS CODE          379877

##########

This will never end and the fraud will go on forever with no end in sight.

REUTERS-

Bond insurer Assured Guaranty Ltd filed new claims against JPMorgan Chase & Co over a mortgage-backed security sold by Bear Stearns, saying more than 35 witnesses have come forward to testify about how loans in the $337 million transaction were misrepresented.

The lawsuit contends Bear Stearns and its EMC mortgage arm, acquired by JPMorgan after their collapse in 2008, knew the pool of more than 6,000 home-equity lines of credit that served as collateral for the investment was filled with defective loans.

[REUTERS]

Excellent!

SS-Training –

Bill Butler writes: The untold story in the foreclosure crisis unfolding across America is that, following a foreclosure perpetrated by one of the October 2008 Bailout Banks (e.g. Bank of America, Citibank, JPMorgan, Wells Fargo) Fannie Mae or Freddie Mac suddenly appear as the record owner of Average Joe’s home. These federal government sponsored entities then go into local housing court and get a court order authorizing them to evict Joe. If Joe resists, these supposedly charitable institutions obtain a writ ordering the local sheriff to forcibly remove Joe from his home.

[SS-TRAINING]

In case you wish to read the transcripts from this story check it out: FULL DEPOSITION TRANSCRIPT OF LENDER PROCESSING SERVICES “LPS” SCOTT A. WALTER PART 1 &

FULL DEPOSITION TRANSCRIPT OF LENDER PROCESSING SERVICES SCOTT A. WALTER PART 2 “STEVEN J. BAUM, P.C.”, “O. MAX GARDNER”, “US TRUSTEE”

NY POST-

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.

Something strange is going on here and it looks like a complete set up… Don’t ask me why it just seems like risky business.

Wanna Bet?

The M Report–

JPMorgan Chase & Co. has a buyer for $15 billion in mortgage servicing rights from the financial institution, with the announcement that Ocwen Financial Corp. would purchase the bank’s MSRs for a rumored $950 million. Ocwen’s acquisition follows the company’s decision to raise $375 million in new equity through offering 25 million shares of public common stock.

The equity transaction is set to close on November 16, prior to the finalization of the MSR deal with JPMorgan, and Ocwen’s public common stock will be priced at $13 per unit. The company has previously stated that it intended to use proceeds from the sale to purchase JPMorgan’s MSRs, and that acquisition will close on January 1, 2012.

[THE M REPORT]

Conway Daily Sun-

EFFINGHAM — A major Wall Street bank is apologizing to a Maine couple who allege that the bank wrongfully claimed ownership of their second home on Green Mountain Road in Effingham. But the apology rings hollow for the Drew family.

Apparently, J.P. Morgan Chase & Co. confused a little red house, owned by Travis and Paula Drew, at 529 Green Mountain Road, for a no-longer-existent mobile home at 519 Green Mountain Road.

The structures were owned by different people even though they once shared the same lot. The confusion led the bank’s agents to change the locks on the Drews’ home and remove $14,000 worth of belongings from the property.

The Drews don’t live in the Effingham house. They live in Stow, Maine.

[CONWAY DAILY SUN]

If you recall from the previous unsealed complaint, “Top JPMorgan Execs. Were Warned of Madoff Scheme”, this appears to be similar…certainly if there is one, there must be others.

This is just slightly south of the entire settlement package of the Foreclosure Fraud settlement, which is also nilch for the acts committed.

Reuters-

Former customers of Bernard Madoff’s massive Ponzi scheme filed a class action lawsuit on Monday seeking to recover $19 billion from JPMorgan Chase & Co, claiming the bank willfully ignored signs of fraud.

JPMorgan was Madoff’s bank for two decades. The lawsuit, filed in federal court in Manhattan, claims the bank was “thoroughly complicit” in concealing Madoff’s fraud.

[REUTERS]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

This isn’t the first and afraid not going to be the last

HuffPO-

How could a home be repossessed when it’s no longer in the homeowner’s possession? One family in Utah asked itself the same question.

Shantell Curtis and her family were threatened with foreclosure months after they had sold their Vernal, Utah house. What’s more, the problem revolved around a single dollar, Connect2Utah.com reports (h/t The Consumerist). Months after the Curtises sold and moved out of the home in August of last year, their lender, Bank of America, reportedly sent them a foreclosure notice.

Bank of America claimed the family owed months of missed mortgage payments, before realizing a $1 coding error had held up the Curtises’ title transfer. While BofA has taken months to resolving the issue, the Curtises’ credit report has taken a beating since then.

[HUFFINGTONPOST]

© 2010-19 FORECLOSURE FRAUD | by DinSFLA. All rights reserved.

Rolling Stone-

Just a quick all-points bulletin, and please excuse my use of this space to make up for research failures. I’m working on a pair of corruption stories and I’m looking for people who may have ended up having consumer problems with certain companies. I’m particularly interested in people from central and northern New Jersey. So I’m looking for people who had either of the following issues:

• Problems with a Chase credit card (or a Chase-related card, like for instance a Circuit City card). Especially if you had, or know someone who had, a court judgment over a delinquent Chase account, please drop me a note.

• A foreclosure involving a home loan originally issued by the now-defunct New Century Co.

Read more: [ROLLING STONE]

The best address to which to write is matt.taibbi@rollingstone.com

Absolutely do not miss this piece from Abigail Field – So head over and please absorb the information.

Abigail C. Field-

If you want to cut through some of the nonsense the banks have managed to sell as information about the housing situation, robosigning, mortgage modifications, check out this very accessible interview of attorney Talcott Franklin by Martin Andelman.

Tal represents the majority of investors hosed once by Wall Streeers selling AAA-rated mortgage backed junk, and constantly being hosed again by the big bank servicers of those mortgages. Interestingly, his perspective sounds very much like homeowners’. Yes, a couple of times it gets a little too legalistic, but only for about 5 minutes of the slightly longer than the hour chat—when you hit the overview of the contracts structuring securitization, or any other topic that is more in the weeds than you want to go, take a deep breath and keep going. Most of the interview is in a rhythm and a language that creates clarity I’ve not seen or heard elsewhere.

[REALITY CHECK]

Please find some time today or over the weekend to listen to this excellent podcast of Martin Andelman’s interview with Attorney Talcott Franklin, who represents more than half of all the investors in mortgage-backed securities on the planet.  Tal’s the co-author of the “Mortgage and Asset-backed Securities Litigation Handbook,” and he’s a very experienced and highly sophisticated litigator. You will learn a whole lot and many thanks to Martin for this super interview.

Please head over to Mandelman Matters for the full article.

The podcast is available in two versions… MP4 and MP3.  The MP4 version includes a couple of slides that show diagrams of the basic securitization process, but the MP4 format may not play on some computers.  The MP3 version is audio only, and should play on most any computer.  Most listeners will have no trouble following along either way.

So, turn up the volume on your speakers, and click the MP4 or MP3 version.  I loved recoding this podcast.  If you want to know more about the foreclosure crisis, you’re about to learn from an expert on the other side of the foreclosures, the investor side… it doesn’t get any better than this!

CLICK HERE TO PLAY THE ENHANCED MP4 VERSION

… INCLUDES SLIDES ON SECURITIZATION

 OR

CLICK HERE TO PLAY THE MP3 VERSION

Mandelman out.

BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT

In re: ELIZABETH R. COLLINS,

Debtor.
No. 10-8085

_____________________________________

J. JAMES ROGAN, Trustee,

Appellant,

v.

LITTON LOAN SERVICING, L.P.,
THE BANK OF NEW YORK, MELLON FKA
THE BANK OF NEW YORK AS SUCCESSOR
TO JP MORGAN CHASE BANK, N.A., AS
TRUSTEE FOR THE BENEFIT OF THE
CERTIFICATE HOLDERS OF POPULAR, ABS,
INC. MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2005-3,

AIG FEDERAL SAVINGS BANK DBA
WILMINGTON FINANCE,

CITIBANK, NA, and

GMAC MORTGAGE LLC,

Appellees.

Appeal from the United States Bankruptcy Court
for the Eastern District of Kentucky
Bankruptcy Case No. 10-50990; Adv. Proceeding No. 10-05065

EXCERPT:

STEVEN RHODES, Bankruptcy Appellate Panel Judge. J. James Rogan, the trustee in this
chapter 7 case, appeals an opinion and order of the bankruptcy court dismissing his complaint. The
complaint sought a declaratory judgment to determine the validity, extent, and priority of liens on
the real property of the debtor, Elizabeth Collins, held by defendants Litton Loan Servicing, Bank
of New York, GMAC Mortgage, and Wilmington Finance. The trustee also appeals an opinion and
order of the bankruptcy court granting a motion to vacate the default judgment entered against
Wilmington Finance.

For the reasons that follow, as to defendants Litton Loan Servicing and Bank of New York,
the Panel vacates the dismissal and remands the matter for further proceedings to determine who was
the holder of the first mortgage on the date of filing, and if it was either Litton Loan Servicing or
Bank of New York, then whether either was the holder of a fully and properly indorsed note.

[…]

On the day after the first mortgage was recorded, February 5, 2005, Wilmington Finance
assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (“MERS”). On June 16,
2005, this assignment was recorded. (Addendum to Br. of Bank of New York, February 16, 2011,
app. case no. 10-8085, ex. 2.)

The record also includes an assignment dated March 26, 2010, the day after the debtor filed
bankruptcy. MERS assigned this mortgage to the Bank of New York Mellon f/k/a The Bank of New
York, as successor to JPMorgan Chase Bank, N.A. as trustee for the benefit of the certificate holders
of Popular ABS, Inc. Mortgage Pass-Through Certificates Series 2005-3 c/o Litton Loan Servicing.
(bankr. claim 1-1.) On April 7, 2010, which was twelve days after the debtor filed bankruptcy, this
assignment was recorded. Thus, on the day that the debtor filed bankruptcy, it appears that neither
Bank of New York nor Litton Loan Servicing held any interest in the first mortgage. Inexplicably
however, the debtor listed Bank of New York/Litton Loan Servicing on schedule D as the secured
creditor holding the first mortgage. (bankr. dkt. #1.) Schedule D appears to have been filed on the
date of the petition. The record does not provide an explanation for how the debtor would have
known that Bank of New York/Litton Loan Servicing would be the secured creditor prior to the
assignment.

[…]

[ipaper docId=70278657 access_key=key-2vekkki5b1mumnt9ak9 height=600 width=600 /]

The Sanders Report on the GAO Audit on Major Conflicts of Interest at the Federal Reserve

U.S. Senator Bernie Sanders (I-Vt.)
Washington, DC
October 19, 2011

[ipaper docId=69476603 access_key=key-26etn7unk59fdnkzkrp7 height=600 width=600 /]

Excerpt via Senator Sanders–

The report by the non-partisan research arm of Congress did not name but unambiguously described several individual cases involving Fed directors that created the appearance of a conflict of interest, including:

• Stephen Friedman In 2008, the New York Fed approved an application from Goldman Sachs to become a bank holding company giving it access to cheap Fed loans. During the same period, Friedman, chairman of the New York Fed, sat on the Goldman Sachs board of directors and owned Goldman stock, something the Fed’s rules prohibited. He received a waiver in late 2008 that was not made public. After Friedman received the waiver, he continued to purchase stock in Goldman from November 2008 through January of 2009 unbeknownst to the Fed, according to the GAO.
• Jeffrey Immelt The Federal Reserve Bank of New York consulted with General Electric on the creation of the Commercial Paper Funding Facility. The Fed later provided $16 billion in financing for GE under the emergency lending program while Immelt, GE’s CEO, served as a director on the board of the Federal Reserve Bank of New York.
• Jamie Dimon The CEO of JP Morgan Chase served on the board of the Federal Reserve Bank of New York at the same time that his bank received emergency loans from the Fed and was used by the Fed as a clearing bank for the Fed’s emergency lending programs. In 2008, the Fed provided JP Morgan Chase with $29 billion in financing to acquire Bear Stearns.At the time, Dimon persuaded the Fed to provide JP Morgan Chase with an 18-month exemption from risk-based leverage and capital requirements. He also convinced the Fed to take risky mortgage-related assets off of Bear Stearns balance sheet before JP Morgan Chase acquired this troubled investment bank.

Gretchen Morgenson tears this one up… gotta love this piece of the story

“Only Lender Processing Services had more — 91 — than Fannie and Freddie. (Perhaps they robo-signed their registrations.)”

NYT-

THE mortgage business is moribund. New loans are down. New foreclosures are up.

But why let a little sorry news get in the way of a good party? Last week, almost 3,000 people descended on the Hyatt Regency in Chicago for the 98th annual convention of the Mortgage Bankers Association.

The price of admission: about $1,000 a head. But for that grand, you got to hear the band Chicago play hits from the ’70s. And David Axelrod and Jeb Bush give speeches. And experts discuss things like demographics, the politics of housing and the future of the mortgage industry, according to a flier for the event.

[NEW YORK TIMES]