AURORA LOAN SERVICES
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On Wednesday, January 9, Attorney George Babcock will be arguing on appeal Culhane vs. Aurora Loan Services of Nebraska, C.A.No. 11-11098-WGY in front of the United States Court of Appeals for the First Circuit
Arguments in the case will be heard by Chief Judge, the Hon. Sandra L. Lynch, retired Supreme Court Justice, the Hon. David Souter, and Rhode Island Senior Circuit Judge, the Hon. Bruce M. Selya. The central issue being argued consists of whether the mortgage was properly assigned from Mortgage Electronic Registration Systems, Inc. (MERS) to the foreclosing entity (Aurora Loan Services), and whether this granted Aurora the legal ability to foreclose on Culhane’s property. The mortgage assignment and how it plays into the foreclosing entities right to foreclose is one of the key issues in many of the cases Attorney Babcock and his team of lawyers work on each day.
The memorandum, raises another issue central to this case; the conflict of interest posed by the certifying officers, who effectively wear “two hats” simultaneously: that of assignor (as an agent for MERS) and assignee (as an employee of the note holder or its servicing agent).
FIND OUT IF YOUR LOAN IS COVERED BY THE FRAUDCLOSURE SETTLEMENT
FORECLOSURE FILINGS WILL INCREASE! The Banks Coerce Another Sweetheart Fraudclosure Settlement- Regulators Cave, Consumers Get Kicked In The Teeth.
Far too many consumers have been going it alone, resolving to try and work out their foreclosure case with the banks directly, hoping that government investigations and interventions would provide them with some relief. But this was clearly delusional thinking, as the latest fraudclosure settlement terms are revealed. The bankers meet in private with lapdog government officials and sign onto a settlement agreement that involves them paying back just some small percentage of the money already gifted to them from taxpayers. Not even close to any penalty or punishment for wrongdoing, and consumers are left out in the cold….in many cases quite literally.
And what will be the impact of this settlement? Just like after they announced the 49 State Attorney General Sellout, once this one gets inked, the gloves are coming off for the following servicers and they are going to be pursuing their cases with a fury:
America’s Servicing Co.
Aurora Loan Services
BAC Home Loans Servicing
Bank of America
EverBank/EverHome Mortgage Company
IndyMac Mortgage Services
National City Mortgage
Wilshire Credit Corporation
CNN STORY ON FRAUDCLOSURE SETTLEMENT
It’s been more than a year now since the Florida Supreme Court passed a very simple rule. The Rule requires Plaintiffs to verify their complaint. All that means is they must be willing to say the allegations are TRUE AND CORRECT. That’s it folks. Nothing more. This isn’t the moonshot. And the effective date is February 11, 2010!!! Nothing mindblowing about that.
What is mind-blowing is the fact that the foreclosure mills continue to file complaints that are not even verified at all and if they are they are often not verified correctly. I think courts should be independently verifying that the complaints are verified correctly and dismissing them if they are not. Here are the synopsis of the orders, which are in Florida Law Weekly Supplement:
AURORA LOAN SERVICES, Plaintiff, v. TODD A. FLEETWOOD AND KRISTI FLEETWOOD, Defendant. Circuit Court, 19th Judicial Circuit in and for Indian River County. Case No. 31-2010-CA-073506. January 26, 2011. Cynthia L. Cox, Judge.
FINAL ORDER OF DISMISSAL
The verification must be included in the complaint itself for the Court to be certain that the affiant has read the actual allegations and to make it clear what is being verified. The purpose of the verification is to create accuracy and accountability. There is no provision in the rule for the filing of a separate verification in a separate document. Common sense dictates that without verification in the complaint itself, it would never be clear what the affiant reviewed and what allegations they verified. The rule does not permit qualifying or limiting language. The complaint needs to be verified by an employee or officer of the plaintiff, by an employee or officer of its loan servicer, or by the attorney who files the case. Designations such as”authorized agent”, “authorized signatory”, “authorized officer”, “representative of the plaintiff’s servicer”, “representative of the plaintiff” and the like are meaningless, insufficient and tell the reader nothing. The rule requires a clean, plain statement of accuracy by a person who actually verifies the truth of the claims made, and who is identified as being in a position to actually do so. This case seeks to foreclose a residential mortgage and was filed after the effective date of the rule amendment.
IT IS THEREFORE ORDERED AND ADJUDGED as follows:
1. This case is DISMISSED without prejudice. No other pleadings by the plaintiff will be permitted in this case, other than a request for rehearing if appropriate. If the plaintiff elects to file a new action to foreclose on the same property, it must be filed under a new case number and a new filing fee will be required.
2. The plaintiff may move for reconsideration within ten days, on the sole ground that the subject property is not residential property. A copy of the motion and any supporting memorandum must be provided to the undersigned. The Court may rule on the motion without a hearing. No hearing will be set unless determined by the Court to be necessary.
3. It is confiscatory of the Court’s time to have to address this matter. Repeat violations by the same firm, or by the same attorney, may result in imposition of personal sanctions, and issuance of an order directed to the attorney or firm to show cause why that attorney or firm should not be prohibited from filing further foreclosure cases in this Court.
Online Reference: FLWSUPP 1804NATI
Mortgages — Foreclosure — Complaint — Verification — Unverified foreclosure complaint filed after February 11, 2010, effective date of rule 1.110(b) is dismissed with leave to amend
NATIONSTAR MORTGAGE LLC, PLAINTIFF, v. CRAIG K. LUNT AND DOROTHEA C. LUNT, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 10-6330-CI-20. February 7, 2011. Honorable George Jirotka, Judge. Counsel: Karen Thompson, for Plaintiff. Matthew D. Weidner, for Defendant.
THIS CAUSE came to be considered upon the Defendant’s Motion to Dismiss, this court having reviewed the Defendant’s motion and accepted the argument of counsel for Defendant who appeared in person and counsel for Plaintiff who appeared via telephone, it is hereby:
ORDERED AND ADJUDGED as follows:
1. The Defendant’s Motion To Dismiss/Motion For More Definite Statement asserted that the Florida Supreme Court, pursuant to Rule 1.110(b), mandated that residential foreclosure complaints shall be verified and that the effective date of the requirement was February 11, 2010.
2. Plaintiff argued that the change to Florida Rule of Civil Procedure was not effective until June 2, 2010 and that because the instant complaint was filed prior to June 2, 2010, the instant complaint was not required to be verified.
3. This court finds that the effective date of Florida Rule of Civil Procedure Rule 1.110(b) is February 11, 2010 and that all residential complaints defined by the Rule must be verified beginning February 11, 2010.
4. Because the instant complaint is not verified in any manner, by any party, the Defendant’s Motion to Dismiss/Motion For More Definite Statement is GRANTED and the case is dismissed except that the Plaintiff shall have thirty (30) days to amend their complaint.