Update: Pillar Processing is also part of this settlement.
Buffalo Business First-
The case of embattled foreclosure attorney Steven Baum has taken another turn as the Amherst attorney reached a settlement with the New York State Attorney General over charges his firm mishandled foreclosure filings statewide over many years.
Under terms of the agreement, Baum has agreed not to handle mortgages for two years and will pay a penalty of $4 million.
The deal with Attorney General Eric Schneiderman’s office comes five month after the firm settled with the United States Attorney for the Southern District and paid $2 million while agreeing to drastically overhaul its business practices.
“I am glad the U. S. Attorney completed this phase of the Baum saga and that he is changing his practice,” said New York City attorney Susan Chana Lask
[…]
“I hope homeowners use the settlement to show the courts the foreclosure mill problem was real and damaged a lot of people’s lives. It’s not over.”
Steven J. Baum PC, the Amherst law firm that has been under heavy fire for its foreclosure practices, agreed Thursday to pay a $2 million fine and “extensively” overhaul its practices in a settlement with the U. S. Attorney’s Office in Manhattan that has statewide implications.
The agreement with Baum resolves a federal investigation into whether the state’s largest foreclosure law firm, on behalf of lenders, filed misleading affidavits, mortgage assignments and other documents in state and federal courts.
Action Date: October 7, 2011 Location: New York, NY
On October 6, 2011, a settlement agreement was signed regarding the practices of one of the largest foreclosure mills in the country, Steven J. Baum, P.C., a law firm operating from Amherst, New York. The settlement was obtained by Preet Bharara, the U.S. Attorney for the Southern District of NY. The investigation was conducted by the Civil Frauds Unit of the United States Attorney’s Office for the Southern District of New York which investigated under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA).
Under the settlement, the Baum Firm is required to pay $2 million and make significant reforms, but is still allowed to say (paragraph 4): “This Agreement does not constitute a finding by any Court or Agency that Baum has engaged in any unlawful practice or wrongdoing of any kind.”
Most significantly, Baum employees – including the very prolific robo-signing associate, Elpiniki Bechakas, may no longer sign mortgage assignments as officers of Mortgage Electronic Registration Systems, Inc. (“MERS”). (Bechakas is not specifically named in the Agreement, but has been singled out by NY judges, including the Honorable (and very savvy) Arthur Schack of Brooklyn, as a Baum attorney with very questionable practices.)
The relief provided in the Settlement Agreement is very much prospective relief, and in that regard, is very comprehensive.
For those pending cases, however, the relief in paragraph 15(a) may seem grossly inadequate:
“Baum shall provide the following notification:
a. In any pending foreclosure action where an application for a judgment of foreclosure has not been submitted to a court, if Baum has filed an assignment of mortgage as a corporate officer of MERS, Baum shall disclose that fact to the court in the application for the judgment of foreclosure, or earlier. Such disclosure shall not be required if the Baum firm does not file a proposed judgment of foreclosure (e.g. because another law firm has been substituted as counsel for the matter prior to the filing of a proposed judgment of foreclosure, because the action is dismissed, etc.)”
All that the banks need to do under this settlement in pending cases is to sub in another law firm that may use the Baum assignments to foreclose, without even making any further disclosure to the courts such as “the signers are really employees of the Baum Law Firm who previously represented the banks in this matter.”
While it is true that most defense attorneys will no doubt raise this point, it is also true that most homeowners in foreclosure proceed pro se and are likely to be completely unaware of this Settlement Agreement, and the actual employer of Elpiniki Bechakas and other Baum signers.
Then there is the matter of the tens of thousands of homeowners who have lost their homes in cases where Baum employees signed mortgage assignments as officers of MERS. Most often, they assigned mortgages to mortgage-backed trusts so that the trusts could foreclose, even though such transfers did not take place on the dates and in the manner set forth on the Baum assignments. These Baum Assignments appear throughout the New York courts, but often in the Courts of other states as well.
Two million seems to be the magic number. This is also the amount paid by the Law Offices of Marshall Watson in Florida whose associates engaged in similar practices of signing as MERS officers, assigning mortgages after foreclosure actions were initiated, etc.
Further relief may be forthcoming, from both criminal prosecutions, the NY Bar, and most certainly from private class action and RICO lawsuits brought by private litigants.
Investors in mortgage-backed securities must ask for reports from the Trustees of how much they have paid for these Baum Assignments in the last five years, how much they have lost and how much more they will lose when foreclosures are successfully defended because the loan documents relied on by the trustees were “Baum-made.”
This is a first-of-its-kind settlement with one significant party in the foreclosure fraud morass.
Now you know why people Occupy Wall Street, They are pissed and sick and tired of all the fraud. Bloomberg warned that US unemployment will lead to RIOTS, I think he needs to broaden this statement.
NY POST-
The largest foreclosure mill in New York, under investigation for years by federal authorities for allegedly filing misleading paperwork, affidavits and mortgage documents, yesterday agreed to pay a $2 million fine to settle a probe by Manhattan US Attorney Preet Bharara.
Steven J. Baum PC, which has filed tens of thousands of foreclosure actions across the state over the past several years, promised to change the way it did business and admitted to “occasionally” making “inadvertent errors.”
The Buffalo-based firm, which was used by every major bank in the country, did not admit any wrongdoing in the settlement deal.
UNITED STATES ATTORNEY’S OFFICE Southern District of New York
U.S. ATTORNEY PREET BHARARA
FOR IMMEDIATE RELEASE Thursday, October 6, 2011 http://www.justice.gov/usao/nys
CONTACT: Ellen Davis, Carly Sullivan, Jerika Richardson (212) 637-2600
.
MANHATTAN U.S. ATTORNEY ANNOUNCES AGREEMENT WITH MORTGAGE FORECLOSURE LAW FIRM TO OVERHAUL ITS PRACTICES AND PAY $2 MILLION FINE
PREET BHARARA, the United States Attorney for the Southern District of New York, announced today that the United States has entered into an agreement with the law firm of STEVEN J. BAUM, P.C. (“BAUM”), one of the largest volume mortgage foreclosure firms in New York State, that requires the firm to pay $2 million to the United States and to extensively change its practices with respect to mortgage foreclosure actions (the “Agreement”). The Agreement resolves an investigation into BAUM’s mortgage foreclosure-related practices, specifically whether the firm, on behalf of its lender clients, filed misleading pleadings, affidavits, and mortgage assignments in state and federal courts in New York.
Manhattan U.S. Attorney PREET BHARARA said: “In mortgage foreclosure proceedings, there are no excuses for sloppy practices that could lead to someone mistakenly losing their home. Homeowners facing foreclosure cannot afford to have faulty paperwork or inadequate evidence submitted, and today’s agreement will help minimize that risk.”
The Agreement specifically prohibits BAUM from engaging in certain practices related to the Mortgage Electronic Registration Systems, Inc. (“MERS”), a subscription-based electronic registry system for lenders and other entities that tracks ownership interests in mortgages. MERS members contractually agree to appoint MERS as their agent on all mortgages they register. Until recently, employees of BAUM, with the consent of MERS, had been assigning mortgages on behalf of MERS, even though they had no connection to MERS whatsoever, which resulted in errors in its legal filings in state and federal court. Pursuant to the Agreement, BAUM is prohibited from executing any assignment of a mortgage as an “officer” or “director” of MERS.
The Agreement also requires a general overhaul of BAUM’s practice with respect to its filings in mortgage foreclosure actions. Under the terms of the Agreement, BAUM has agreed to:
Take steps to inform courts of the nature of the assignments in pending foreclosure proceedings it is handling;
Obtain appropriate affidavits from its clients attesting to the fact that they possess original notes or have conducted a diligent search and the original note could not be found;
Have experienced attorneys supervise the preparation of pleadings, and review and approve pleadings before they can be filed;
Implement a 12-24 month training program for its attorneys that includes an overview of the foreclosure process in New York State and a review of the litigation procedures expected at BAUM;
Provide immediate notice to the Government when objections are raised regarding the accuracy of certain court filings related to mortgage foreclosure proceedings; and
Maintain documentation of its compliance with the settlement.
In addition, the Agreement requires BAUM to pay the United States $2 million in exchange for a release from any potential claims pursuant to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). FIRREA authorizes the United States to seek civil penalties for violations of, and conspiracies to violate, certain predicate criminal statutes involving financial fraud, including mail and wire fraud. The release from liability does not preclude any other parties, including individual homeowners, from pursuing any rights they may have.
The Agreement does not constitute a finding by any court or agency that Baum has engaged in any unlawful practice or wrongdoing. In the Agreement, Baum acknowledges, however, that it occasionally made inadvertent errors in its legal filings in state and federal court, which it attributes to human error in light of the high volume of mortgage defaults and foreclosures throughout the State of New York in the wake of the national subprime mortgage crisis.
Mr. BHARARA thanked the U.S. Trustee’s Office for their invaluable assistance in this case. The case is being handled by the Office’s Civil Frauds Unit. Assistant U.S. Attorneys PIERRE ARMAND and LARA ESHKENAZI are in charge of the case.
The Civil Frauds Unit works in coordination with President BARACK OBAMA’s Financial Fraud Enforcement Task Force, on which Mr. BHARARA serves as a Co-Chair of the Securities and Commodities Fraud Working Group. President OBAMA established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.
It’s become a new world in America. No matter how hard one tries, all those families who were thrown out of their homes…how many individuals can settle and get away with this?
Money is the root of all evil.
Bloomberg-
Steven J. Baum’s foreclosure law firm, one of the largest in New York state, will pay the U.S. $2 million and change its practices to resolve a probe into its mortgage-related legal filings.
The agreement resolves an investigation into whether the Baum firm filed misleading pleadings, affidavits and mortgage assignments in courts, according to a statement today by U.S. Attorney Preet Bharara in Manhattan.
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2011
CATHERINE PAIGE PARKER, et. al.,
Appellants,
v.
LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF THE STRUCTURED ASSET SECURITIES CORPORATION, STRUCTURED ASSET INVESTMENT LOAN TRUST, MORTGAGE PASS-THROUGH CERTIFICATES M SERIES 2003-BC8,
Appellee.
EXCERPT:
This case is more akin to Demars v. Village of Sandalwood Lakes
Homeowners Association, 625 So. 2d 1219 (Fla. 4th DCA 1993). In that
case, a homeowners association filed suit to foreclose o n a lien for
unpaid assessments and obtained judgment. The association attempted
personal service twice at the homeowner’s residence. A tenant at the
residence did not know how to contact the homeowner. To establish a
diligent search for constructive service, the association’s attorney called a
mortgage holder a n d th e power company. Neither would divulge
information over the phone, and the association’s attorney did not follow
up with a letter. The court held the association’s search did not meet the
standards of reasonable diligence because the attorney for the
association did not follow up on any of his inquiries. Therefore, the
constructive service was defective, rendering the judgment of foreclosure
voidable.
In this case, the record reflects only one return of service. According
to the affidavit of diligent search and inquiry, Harris next searched credit
information, directory assistance, motor vehicle records, the post office,
property tax records, national death records, and prison records to try
and locate Parker. However, the affidavit shows the search for Parker
was less than diligent. Regarding efforts to locate Parker at her last
known address (the subject property) is a statement that “Process Server
stated: Tenant occupied.” No indication exists as to when the process
server went to the premises or how h e determined it was “tenant occupied.”
Further, no indication exists that the process server inquired
of the tenant the whereabouts of Parker. Under the section of the
affidavit titled “Inquiry of Neighbors at Last Known Address,” it merely
states: “Unable to contact neighbors,” with no statement as to who made
attempt, or on what dates or any description of any attempt made.
Under the section “Freedom of Information Act Inquiry Made to US Postal
Service,” it says “Requested change of address or boxholder information
[at property address] on 2/19/09. Upon receipt of their response, will
promptly revert,” with no follow-up of any information received from the
post office.
“[P]roof of a few attempts at service of process are insufficient to prove
diligent search.” Demars, 625 So. 2d at 1221. In this case, personal
service was attempted only once. As in Demars, the affidavit of diligent
search filed in this case displays a pattern of failure to follow up on
inquiries and leads that could have revealed Parker’s location. Therefore,
we find LaSalle’s search did not meet the standards of reasonable
diligence. Further, this case is distinguishable from Reina in that Parker
was diligent in pursuing the motion to quash. Parker’s trial counsel filed
a special limited appearance to attack the service of process fourteen
days after entry of final judgment and filed an emergency motion to
quash six days later. Therefore, we reverse, finding the final judgment
entered in this case voidable, and remand for further proceedings.
Facebook isn’t just for your “friends” anymore, as unlucky home-owners facing foreclosure are finding out.
After failing to reach an Australian couple who defaulted on their mortgage by mail or phone, the bank’s lawyer served foreclosure documents via Facebook after verifying their identity by matching names and birth dates and “friending” them on the social media Web site.
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
PHH MORTGAGE CORPORATION fka CENTURY 21 MORTGAGE
vs.
MARIA S. ALBUS, et al
EXCERPT:
{6} Appellee also filed the affidavit of Tracy Johnson, the loan supervisor assigned to Appellant’s account. According to the affidavit, Appellant defaulted on the note and Appellee exercised the acceleration option contained in the note. (Johnson Aff., ¶4-5.) Johnson avers that an unpaid principal balance exists in the amount of $56,874.74, with interest to accrue at the rate of 8.308% per annum from November 1, 2006, “plus sums advanced by Plaintiff pursuant to the terms of the Mortgage Deed for real estate taxes, hazard insurance premiums and property protection* * *.” (Johnson Aff., ¶5.) An illegible loan history statement is attached to the affidavit, as well as a customer activity statement and a loan activity statement. No certificate of service is included in the record with the document.
Don’t be a fool. I can assure you, the AG’s that are investigating have this info.
~
2011 NY Slip Op 31747(U)
DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,
v.
DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.
No. 1070/08, Motion Seq. No. 4.
Supreme Court, Queens County.
June 22, 2011.
BERNICE D. SIEGAL, Judge.
EXCERPT:
Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].
While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).
In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.
The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).
Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.
The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.
Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.
[…]
The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is
ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further
ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.
The foregoing constitutes the decision and order of the court.
DEUTSCHE BANK TRUST COMPANY AMERICAS AS TRUSTEE, 9350 Waxie Way San Diego, CA 92123 Plaintiff,
v.
DANILO PICON, MAGALYS T. PICON, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR FIRST NATIONAL BANK OF ARIZONA, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE,
JOHN DANIELS, YVETTE “DOE” Defendants.
No. 1070/08, Motion Seq. No. 4.
Supreme Court, Queens County.
June 22, 2011.
BERNICE D. SIEGAL, Judge.
EXCERPT:
Once the issue of standing is raised by the Defendant, the burden is placed on the Plaintiff to prove, as in the instant matter, that it owns the Note underlying the action and the validity of any associated assignment (TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2d Dep’t 2006]). A demonstration by the Plaintiff that it owns the Mortgage, without a showing that it also owns the Note is a nullity and any action for foreclosure based on the ownership of the mortgage alone must fail (Kluge v Fugazy, 145 AD2d 537, 538 [2d Dept 1988]). This result is mandated because the mortgage is “but an incident to the debt which it is intended to secure,” and without more, it provides the holder with no actionable interest on which to commence a foreclosure action (Merritt v Bartholick, 36 NY 44, 45 [1867].
While a written assignment or physical transfer of the Note is sufficient to result in an implicit transfer of an associated Mortgage, an assignment of the Mortgage, without an explicit assignment of the Note, will not result in an assignment of that Note (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754 [2d Dept 2009]).
In the case before us, Plaintiff only proffers evidence that the mortgage was transferred to the Plaintiff (through MERS, as nominee for Firs National Bank of Arizona [“Arizona”]) via an Assignment of Mortgage dated January 7, 2008. It does not, critically, provide evidence that the Note itself was transferred to the Plaintiff.
The only documents the Plaintiff submits in connection with the issue of the ownership and assignment of the Note are a copy of the original Adjustable Rate Note Agreement between Arizona and the Defendant dated March 8, 2006, and a copy of an undated allonge between Arizona and the First National Bank of Nevada [“Nevada”], seemingly transferring Arizona’s interest in the Note to Nevada. Although not dated, it is only logical for the court to assume that the allonge was executed prior to any purported assignment of the Note to the Plaintiff. If we were to assume otherwise, it would imply that Arizona was assigning to Nevada a Note that it did not own (since such Note had already been purportedly assigned to the Plaintiff).
Critically, Plaintiff does not provide documents demonstrating that the Note itself was assigned to Plaintiff, such as from MERS (as nominee for Arizona), from Arizona itself, or from a third-party such as Nevada.
The only interpretation the court can adduce from such evidence is that although it is possible that Nevada may own both the Mortgage and the Note since a valid transfer of a Note (in this case through the undated allonge), effectively transfers an associated Mortgage, the assignment of the Mortgage from MERS (as nominee for Arizona) to Plaintiff, under New York law, definitively did not transfer ownership of the Note to Plaintiff.
Since the allonge indicates that the Note is the property of Nevada and not Arizona, Arizona was never in a position to assign the Note to Plaintiff. Therefore, even if Plaintiff holds the Mortgage, without evidence that it also owns the Note, it lacks standing to pursue the foreclosure action at bar. Consequently, Plaintiff’s acquisition of the Mortgage without the underlying Note is insufficient to sustain a foreclosure action and Defendant’s motion to dismiss based on the Plaintiff’s lack of standing is granted.
[…]
The other issues raised in Defendant’s Order to Show Cause including the 1) motion to dismiss due to a failure to state a cause of action under CPLR 3211, and 2) a motion to vacate the default judgment and allow an answer under CPLR 317 are deemed moot as they are subsumed or deemed irrelevant in light of this court’s decision above. Based on the forgoing, it is
ORDERED that Defendant’s motion to vacate the default judgment and dismiss the action is granted; it is further
ORDERED that Defendant’s motion to have the case dismissed with prejudice due to fraud is denied.
The foregoing constitutes the decision and order of the court.
DEUTSCHE BANK NATIONAL TRUST CO. As TrusteeUnder Pooling and Servicing Agreement Dated as of November 1, 2006 Securitized Asset Backed Receivables Certificates Series 2006-WM3,
-against-
JOSE QUINONES, JOHNNY FERREIRA, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., As
Nominee for WMC Mortgage Corp., NYCTAB,
NYCPVB, NYCECB, JOHNNY FERREIRA JR.,
MEKIDA AZCONA, CLARENCE FORD,
EXCERPT:
The referee’s deed dated, March 27, 2009, and filed in the Office of the City Register on April 13, 2009, CFRN 2009000107255 is vacated and set aside and the defendant, Johnny Ferreira is restored to possession.
[…]
Finally, it is pointed out that even if, as plaintiff claims, the defendant was served pursuant to CPLR 308(2), no affidavit of service was filed in this action, thus, the defendant is not in default. Service pursuant to CPLR 308(2) is complete, and the defendant’s time to answer begins to run ten days after filing proof of service (see CPLR 320[a]; 3012[c]; Zareef v. Wong, 61 AD3d 749 [2009]; Marazita v. Nelbach, 91 AD2d 604 [1982], appeal withdrawn 58 NY2d 826 [1983]). No affidavit of service has been filed in this action and the plaintiff has never moved for leave to file the affidavit of service. The plaintiff’s actions, or rather inaction, has contributed if not caused the delay it claims is prejudicial.
3 We note that Turner’s argument that Deutsche Bank possessed unclean hands is an equitable defense to the merits of this lawsuit. This is an issue for the chancery court to consider on remand.
ANGELA L. TURNER
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY
Excerpts:
¶1. Deutsche Bank National Trust Company initiated a foreclosure action in the Warren County Chancery Court and attempted to serve Angela Turner by publication. But before doing so, it neither certified Turner was a non-resident of Mississippi nor alleged she could not be located in the state after a diligent inquiry. Because we find service of process did not strictly comply with the governing rules, we reverse the chancellor’s refusal to set aside the default judgment she entered on behalf of Deutsche Bank when Turner did not respond. We remand the case for further proceedings.
[…]
¶11. Although Deutsche Bank published a summons in the newspaper for three consecutive weeks and filed proof of the publication, Deutsche Bank did not comply with Rule 4(c)(4)(A). It is undisputed that Deutsche Bank never filed a sworn petition or affidavit attesting that Turner was a nonresident or could not be found in Mississippi after a diligent inquiry. Therefore, it follows that Deutsche Bank did not comply with any of the remaining requirements for information that must be included in the petition or affidavit.
¶12. “The rules on service of process are to be strictly construed. If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition.” Kolikas v. Kolikas, 821 So. 2d 874, 878 (16) (Miss. Ct. App. 2002) (internal citation omitted). Actual notice does not cure defective process. See, e.g., Mosby v. Gandy, 375 So. 2d 1024, 1027 (Miss. 1979). “Even if a defendant is aware of a suit, the failure to comply with rules for the service of process, coupled with the failure of the defendant voluntarily to appear, prevents a judgment from being entered against him.” Sanghi, 759 So. 2d at 1257 (33).
[…]
¶20. Because service of process in this case failed to comply with Rule 4(c), we find the default judgment entered against Turner is void. Caldwell, 533 So. 2d at 417-18 (finding judgment void for defective process by publication). Thus, the chancery court erred in refusing to set the void judgment aside under Rule 60(b). We reverse and remand for further proceedings in which Deutsche Bank will have the opportunity to serve Turner with process.3
Two years after an Australian lawyer caused a stir by sending a foreclosure notice via Facebook, the practice of online legal service is spreading as a means for courts to keep their dockets moving.
Courts in New Zealand, Canada and the U.K. have adopted the Australian example to avoid having cases stall when people can’t be located and served in person. Lawyers said the U.S. may not be far behind in using the world’s most popular social- networking service.
Ninety-nine times out of a hundred, a struggling homeowner who loses his home to foreclosure will never see it again.
Last month, a judge vacated a bank’s foreclosure sale of Ferreira’s home, effectively handing him back his keys.
As a result, Ferreira is preparing to move back into the same brick two-family with postage stamp front lawn, snug backyard and tidy driveway he’d been evicted from two years ago.
Tailwind, a private equity firm, and investment firm Ares both have financial ties to Pillar Processing LLC, which processes foreclosures for the law firm of Steven J. Baum. Baum handles almost half the foreclosures in New York, according to one of the people. Baum and Pillar were subpoenaed about a month ago, according to the second person. Both declined to be identified because the matter isn’t public.
Hint: This is NOT about borrowers, make sure you read the email in the link below!
“How do you think we can help out those poor defendants today? We may not be able to cure their legal issues, but we’d sure like to help give them some strong legal arguments in their case!”
An investigation by the state attorney general into Steven J. Baum PC is shining a new spotlight on the practices of the prominent Amherst foreclosure law firm, at a time when judges and lawyers downstate are accusing it of filing shoddy court documents.
Once little known outside Western New York, Baum has gained notoriety statewide and nationally, as the firm’s work in the foreclosure crisis placed it in the midst of the controversy over improper legal paperwork and so-called “robo-signing.”
AUBURN — Marie Treat is happy to learn that Attorney General Eric Schneiderman is investigating a Buffalo law firm for questionable strong-arm tactics in its handling of thousands of foreclosures in New York State. Treat says the Steven J. Baum law firm put her through two and a half years of unnecessary anguish when it tried to foreclose on her home in Auburn beginning in 2007.
The New York investigation appears to center on two of the state’s foreclosure industry giants: the Steven J. Baum firm, headquartered in Amherst, N.Y., and Pillar Processing, a default servicing firm set up by Mr. Baum that was spun off in 2007. Representing JPMorgan Chase, Wells Fargo and other large banks, the Baum firm has handled an estimated 40 percent of foreclosure cases in the state. Pillar Processing provides extensive services to the firm.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee for Certificate holders of Bear Sterns
Asset Back Securities I LLC Asset Backed
Certificates, Series 2004-FR3,
v.
UNKNOWN HEIRS AND LEGATEES OF
CANDICE WILLIS, DECEASED, AVANTA R.
WILLIS, ENRICO D. WILLIS, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., as nominee for Fremont Investment & Loan,
UNKNOWN OWNERS and NON-RECORD
Excerpt:
ORDER
Held: The trial court erred in finding defendant Avanta R. Willis waived the issue of personal jurisdiction by filing documents with the court after entry of a default judgment and therefore, the trial court improperly denied defendant’s motion to vacate judgment and to quash service of summons. The judgment of foreclosure
and confirmation of judicial sale are vacated. The cause is remanded to the trial court for further proceedings.
<SNIP>
The motion included defendant’s assertion that she was not a white woman as set forth in the proof of service, that she was not personally served with process in this case, and that a copy of the summons was “stuffed into her mail box.”
<SNIP>
On January 12, 2010, new counsel entered his appearance on defendant’s behalf, and the court continued the cause for hearing. On January 26, 2010, defendant’s new counsel filed a reply to plaintiffs’ response to defendant’s motion to vacate judgment and quash service. In the reply, defendant stated that Karen Crohan, listed as the special process server on plaintiffs’ affidavit of service, was not a licensed detective in the State and was not appointed by the court to serve defendant. According to the reply, Crohan was an employee of Proveset LLC, a licensed detective agency. Also according to the reply, defendant again claimed that she was not served with summons, that plaintiffs failed to rebut defendant’s affidavit that she was not served, and that the trial court’s ex parte order of default was void.
On February 18, 2010, the trial court conducted a hearing on defendant’s motion to vacate judgment and quash service. Defense counsel argued to the court that plaintiffs’ affidavit of service indicated that the process server served a white female, that defendant was African American, that no one else lived with defendant and that the special process server did not comply with the relevant statutes. Plaintiffs’ counsel responded that defendant had waived the issue because defendant filed two prior petitions to vacate and that neither petition attacked personal jurisdiction.
There was no testimony whether the process server ever tried to check the mortgage document which must have included detailed personal information of DALRYMPLE. There was no evidence showing sincere communication between the plaintiff and the process server to find out the actual dwellng place of DALRYMPLE who testified that he made numerous notifications to the plaintiff about his residence since his default in the mortgage payment. The process server did not testify about any effort to find out DALRYMPLE’ s place of employment and to serve him there. The inquiry by the process server to Alex Smith at 96 Meadowbrook Road or to an unidentified neighbor of 184 Beverly Road is no more than a check of D ALR YMPLE’ s residence. The record in the DMV or Post Offce should be the beginning of the search for the whereabout of defendant but not the final answer to the inquiry of the address for the purpose of the nail and mail service. The Court determines that the due diligence requirement to serve under CPLR ~308 (1) or (2) is not satisfied.
The nail and mail service can be made by affixing the summons and complaint to the door of either “the actual place of business, dwellng place or usual place of abode” of the defendant. See CPLR ~308( 4). The process server testified that he affxed the summons and complaint at the premise of 184 Beverly Road and mailed the same to the last known address of DALRYMPLE. However, DALRYMPLE testified that he did not live there but lived at 96 Meadowbrook Road at the time of service. Plaintiff did not offer any evidence or testimony showing that DALRYMPLE actually lived at 184 Beverly Road at the time of service. The alleged statement by an unidentified neighbor of 184 Beverly Road is hearsay and lacks credibility without any information for identification. The reports from DMV or Post Office can be useful as the last known residence but not as the address of actual place of business, dwellng place or usual place of abode. The Cour determines that the purported nail and mail service on DALRYMPLE did not satisfy the statutory requirement under CPLR ~308( 4).
Accordingly, it is
ORDERED, that DALRYMPLE’ S motion to vacate the default judgment is granted.
![[NYSC] Judge F. Dana Winslow Grants Vacatur of Default Judgment Due To “NAIL & MAIL” (Process Service) WELLS FARGO v. DALRYMPLE](https://stopforeclosurefraud.com/wp-content/themes/gazette/thumb.php?src=wp-content/uploads/2011/02/nailandmail4.jpg&w=100&h=57&zc=1&q=90)
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