Posts Tagged ‘deutsche bank’

Homeowners and consumers have got to love Florida’s Second District Court of Appeals.  Here is a court that is strictly and fairly applying the law and simply holding the banks to follow the contracts and the rules that they drafted.

These are tough times in this battle, but when decisions like this come out, it should give us all hope and faith in the good men and women who serve this country, sitting on the bench and belting out good law.

And what is the ultimate outcome of decisions like this that correctly apply the law to foreclosure cases?  Stability, consistent application of rules, a more equitable negotiating and mediation environment for all parties. This country, this state does not need one single other foreclosure to be filed.  What we need is cooperation, mediation, the banks and the people that taxpayers that bailed them out working together to make mortgage payments that are equitable given the facts of each individual case.

There is hope for all of this yet……

In this case, Deutsche Bank failed to meet its summary judgment burden
because the record before the trial court reflected a genuine issue of material fact as to
whether Deutsche Bank had complied with conditions precedent to filing the foreclosure
action.

In Konsulian, we concluded that the bank was not entitled to summary
judgment because it had not established that it had met the conditions precedent to
filing suit. Id. at 1285. The record in that case did not establish that the bank had given
the defendant the notice which the mortgage required. Id. We reach the same
conclusion in this case.

LaurenciovDeutscheBank

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Elizabeth Warren is about the only person I’ve heard in the middle of this year’s long debate over the attack of the White Collar Criminal Oligarchy that seems to be standing up for real people.  And because of that she’s been getting hammered, crushed, beat up and kicked.

Famously by that little twit Patrick McHenry, little man with a Congressional seat from North Carolina.  And once again, it appears that the big shot bankers have won this fight….if the Bloomberg report is correct, a former Deutsche Bank Exec might be appointed to lead the agency tasked with protecting consumers….wow…just think about that….

I find myself continually wondering, “What event or events will finally cause the great sleeping giant called the American People to wake up?”

BLOOMBERG

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How  Can You Get Divorced If You’ve Never Been Married?

That’s a question a wildly experienced attorney asks anytime anyone talks about entering into a loan modification or litigating against a trust.  Her point is (and it has been for years) is that the trusts do not have the authority to enter into modifications or litigation because they do not own many of the mortgages they are purportedly acting on behalf of.  Attorneys like her and a handful of others across the country have been screaming about the glaringly obvious problems with the failures of the securitized trusts for years now, and finally the larger world is starting to wake up.

The latest indication comes from today’s edition of the New York Times.  In today’s edition, Gretchen Morgenson advises that two state attorneys general have now expanded their investigations to determine how many loans were not properly transferred into the alleged Mortgage Backed Securities Trusts (Nothing Backed Securities Trusts).

The rules governing the securitization process are labyrinthine, and there are steps required if the investment is to comply with tax laws and promises made by the issuer in its offering document. If the trusts did not comply with tax laws, for example, the beneficial treatment given to investors could be rescinded, causing taxes to be levied on the transactions.  Here’s the basic scoop, from Gretchen’s article:

The terms of these mortgage deals varied, but many of them required that the trustee examine each of the loan files as soon as they came in from the Wall Street firm or bank issuing the security. For a file to be complete, it would typically have to include all of the information necessary to establish a chain of ownership through the various steps of the bundling process, as when the originator transferred it to the issuer of the security who then moved it to the trustee. (Full Article Here)

The reality for people who are down here fighting on the ground is that precious few of the mortgages that are being foreclosed on comply with their own contracts.  As I dig into each one of my files to confirm whether the basics of securitization were complied with, I find that very few have…..evidence of this failure can be found in virtually every file….the post-dated assignments, the mysteriously appearing endorsements on notes, the substitution of party plaintiff.  And contrary to what some courts think, all of this is dead relevant to our homeowner.

Why should my homeowner be negotiating at all with a plaintiff that cannot prove it complied with its own contract and which may lack the authority to participate in his negotiation?

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Tonight’s revelation that Deutsche Bank is suing the son of one of this country’s most important fraud fighters, Lynn Syzmoniak sent a chill running down my spine….and all of America should wake up and understand just what a terrifying country we live in because virtually every activists and attorney that has spoken out has been targeted…..

Lynn is just the most recent example, but there are far many other examples….especially in the State of Florida.  It is time for all of America to WAKE UP….

PLEASE CLICK HERE, READ THE STORY, SHARE THE STORY WITH FRIENDS AND LEAVE COMMENTS

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When I started defending foreclosures years ago there was no real defense.  The homeowner did not pay, the plaintiff was suing and they were eventually going to win.   My how things have changed in a short period of time.  Today there are widespread and well substantiated allegations of fraud and improper practices on the part of banks, mortgage companies and the law firms and other agents working to throw Americans out into the streets.  In so many cases the question is not whether your client is going to lose the case, but how many questionable things can you find in the foreclosure lawsuit.

This leads us to the emerging line of legal questioning the community of Foreclosure Defense Warriors are engaged in and that is whether previously entered judgments are Void or merely Voidable.  That question looms like a 800 pound Gorrilla in courtrooms all across this state.  When the full specter of issues related to flawed Service of Process is raised, we will have a real sense of how big the most glaring issues of blatantly Void judgments are.  All judgments based on fraudulent service are VOID.  They don’t exist, they did not happen.  To the homeowner living in that new home after purchasing from the bank…..sorry, but you don’t actually own that home, your deed is worthless.  To the bank that gave that mortgage to purchase that home, your lien is not valid.  This line of inquiry is shaking the title industry to the core as they struggle to play a game of “Not my problem; it’s yours”…trying to pass the liability off on the lenders who foreclosed.  Next, the investors are trying to hold the servicers and lenders accountable as evidenced by the recent letter from Deutsche Bank to the servicers stating, “we ain’t gonna be liable for your screw ups”.  This showdown is also a focal point of investor lawsuits against the major servicers, most especially Bank of America.  They’re all saying, you guys screwed this up and we’re not going to hold the bag. (Bank of America is saying “Screw You” you’re on your own.  Obama is saying, “foreclosures are good, we don’t need no moratorium.)

These are not abstract questions that will have no consequences.  In fact, during a recent meeting of the judges and attorneys in Florida’s Sixth Judicial Circuit, it was acknowledged that these questions are going to plague our courts for years to come, as you can read in the attached article in the St. Petersburg Times.

“Even when judgments have been entered and sales have happened, they may say, ‘Whoa, that may have been sold improperly,’ ” McGrady said. “We’re going to have title issues and all those things. And every motion, everything that’s brought to the attention of the court will require a hearing of some sort. We’re working through it, but it will take that much longer.”

This issue is part of the larger and important work of a highly specialized group of foreclosure defense attorneys who have a broad range of experiences and who meet in secret locations regularly to discuss such issues and work through the much deeper and more significantly troubling aspects of this foreclosure insanity.  The JEDTIS (Jurists Engaged in Defense of Title Integrity) are a group formed by Clearwater attorney Greg Clark and include some of the brightest minds in all areas of the law.  If you’re looking to determine whether you have title claims, void (or voidable) judgments or have any number of other claims related to your foreclosure suit, especially any potential appellate cases, contact me for a referral to one of the JEDTI Masters.

For those attorneys who are just beginning your inquiry into VOID or VOIDABLE  judgments, please see some of the initial case law research and discussions on the issues.  The following is intended to assist attorneys in reviewing and intake of cases, please forward your cases to me for review and consideration by the JEDTI masters who are standing by ready to return the rightful owners to their property after proving up that the current “owners” of homes are merely posessors of the home subject to VOID deeds.

Judgments which are void at the outset, may on motion at any time be vacated. See Fla.R.Civ.P. 1.540 (b).

Diligence to serve by publication: Wiggam v. Bamford, 562 So. 2d 389 (4 DCA 1990), Gans v. Heathgate-Sunflower Homeowners, 593 So. 2d 549 (4 DCA 1992), Hobe Sound Ind. Park v. 1st Union Nat. Bank, 594 So. 2d 334 (4 DCA 1992); Batchin v. Barnett Bank, 647 So. 2d 211 (2 DCA 1994).  Forecl judgment entered where sworn statement defective on its face voids sale, even as to non-party bidder.  Gans; HOWEVER, see later 4th DCA case Demars, which says it is only voidable.  See also Fund Concept, Forecls V. Absentee Owners, Jan 93; and III Fla. Real Property Practice (CLE 1976), s. 5.26.  Sworn statement need not set out search facts, but judgment voidable if insuffic diligence, so better practice to set out.  Demars v. Village of Sandalwood LAkes, 625 So. 2d 1219 (4 DCA 1993).

If the trial judge were to find the affidavit to be defective on its face, service would be void as to the bona fide purchaser. If the trial judge finds the affidavit sufficient on its face, but were to determine that a diligent search was not performed, the foreclosure would be voidable, not void, as to the bona fide purchaser. See generally 33 Fla. Jur. 2d Judicial Sales § 13 (2009). On the face of the affidavit of diligent search before us, we find that the affidavit is sufficient for purposes of service by publication and that the trial court did not grossly abuse its discretion in so holding. In light of the necessary reliance on the public record by a bona fide purchaser, the affidavit of diligent search was sufficient on its face to establish that an adequate search had been made to locate an address for service upon Lewis prior to effecting constructive service. The resultant foreclosure sale to the bona fide purchaser cannot be set aside. First Home View Corp. v. Guggino, 10 So. 3d 164 (Fla. 3d DCA 2009) (holding that trial court errs in vacating final judgment of foreclosure in sale of property to bona fide purchaser where homeowner is constructively served by publication and affidavit of diligent search is legally sufficient to establish that an adequate search has been made prior to constructive service); Southeast & Assoc. v. Fox Run Homeowners Ass’n, 704 So. 2d 694 (Fla. 4th DCA 1997) (holding that notice by publication is adequate where affidavit of diligent search is facially sufficient and foreclosure sale to bona fide purchaser is merely voidable, and not void, and cannot be set aside)

847 So.2d 555 RINAS v.RINAS; 1D09-2170 SOUTHEAST LAND DEVELOPERS v. ALL FLORIDA SITE AND UTILITIES, INC.,; 625 So.2d 1219 18 Fla. L. Weekly D911, DEMARS v. SANDALWOOD LAKES; 168 So.2d 183 EVANS v.  HYDEMAN

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Click here for one of the best articles on current issues affecting foreclosure in Florida

Rocket Docket Breakdown: Will borrowers get due process?

Adolfo Pesquera

Daily Business Review

November 08, 2010

Last October, attorney Josh Bleil was being threatened with fines by a Miami-Dade circuit judge for presenting general defense motions on behalf of a client going through foreclosure.

Judge Ronald Friedman struck all defense motions, handed the house back to the lender and told Bleil, “Tell your client the free ride is over.”

Bleil’s firm, Ticktin Law Group, raised issues on appeal, mostly regarding a lack of due process. Homeowner Martha Y. Gonzalez claimed legitimate defenses were ignored, and her foreclosed house was sold last December.

On appeal, Jessica Ticktin found that the 3rd District Court of Appeal’s unsigned decision, simply stating “affirmed,” was especially troubling.

“The trial judge agreed we had not had time to take depositions,” Ticktin said. “He said you can have 30 days; the very next week, he entered summary judgment anyway. The 3rd DCA turned our appeal down without explaining how that was OK.”

The appellate court denial without explanation gives the defense no way to appeal to the Florida Supreme Court, she said.

One year later, a national foreclosure controversy has exposed shoddy and allegedly illegal practices by lenders, services and their law firms, and has also raised questions about the role of the judiciary and Bar groups.

There are signs that consumer defenses are holding ground:

? Two October opinions from the 4th District Court of Appeal reversed trial judges, insisting affirmative defenses must be considered and a copy of the mortgage note must be produced by the lender. The appellate opinions permitted access to documents and testimony needed to refine homeowner’s defenses.

? The American Civil Liberties Union requested records from Florida courts to see if procedures for so-called “rocket dockets” violate due process.

? Lawsuits filed against three major lenders seek class action status, demanding titles be returned to ousted homeowners on properties taken by wrongful foreclosure.

? The 50 state attorneys general have stepped in to exercise their roles as consumer advocates and investigate foreclosure processing in response to claims of doctored and backdated documents.

Lawyers with the Ticktin firm in Deerfield Beach see this as a significant shift on the issue of due process for borrowers that had been moving at a glacier-like pace. At the same time, individual foreclosure cases were gaining speed with judges under pressure to clear backlogs.

A year ago, Florida judges in general favored sentiments Friedman expressed — homeowners should not get away with living in houses where they weren’t making payments, said senior managing partner Peter Ticktin.

Defenses Ignored

Most judges don’t believe institutions like JPMorgan Chase and Wells Fargo commit fraud or use underhanded practices. “At this point, I think the judiciary is now realizing the truth,” Peter Ticktin said. “There are viable defenses to mortgage foreclosure. Some judges took a little bit longer, but they seem to be catching on.”

Foreclosure defense attorneys have been crying over a lack of due process as their defenses were repeatedly ignored.

But the Gonzalez case perhaps exemplifies why.

Miami attorney Gaspar Forteza, advocating for Eastern Financial Federal Credit Union, noted in exasperating detail how defense delaying tactics kept Gonzalez in a house even though she had not made a payment in more than two years.

Demands for depositions might have been relevant had the note been assigned to a pool in the secondary market, the Blaxberg Grayson & Kukoff attorney said. A huge population of the homeowner defenses question the ownership of notes that migrated into mortgage-backed securities. But Eastern Financial never sold the note to another institution.

“Clearly, Gonzalez did not read the complaint, the two motions for summary judgment or the affidavit … all of which establish that Eastern Financial originated the loan, still owned the loan,” Forteza told the appeals court.

The Gonzalez case, however, was about more than just the ownership of the note; in addition, her attorneys raised issues about the lender’s practices.

Eastern Financial still owned the loan, Peter Ticktin said, because the terms were so onerous that Gonzalez stopped paying within three months.

On appeal, Jessica Ticktin accused the lender of violating lending laws. Her brief said the appraisal was ordered and certified by the lender, not a third party. The loan officer falsified facts to avoid the 55 percent debt-to-income ratio; Gonzalez’s ratio was 61 percent. The subprime loan increased her monthly payments by $479.

When she was asked to come to the closing with $969, she told the lender all she had in her bank account was $155. The lender knew the loan was risky and predatory, but cared only about collecting its fee, he said.

Other lender practices have come to light involving questionable and allegedly false documentation filed in foreclosure cases.

If lender arguments always persuaded judges, Ticktin said, the public would not know today that robo-signers processed thousands of affidavits monthly without reading them.

“Unless we actually dig in and see how this transpired … we’re not able to defend our client,” he said.

Critics of Florida’s judicial system question whether extra funding for foreclosure courts starting in July hurt or preserved consumer rights. Senior judges were recruited to clear a backlog of cases choking the courts.

On Oct. 19, the ACLU of Florida teamed up with the national office to request records from all judicial circuits, and the Office of State Court Administrator advocating on behalf of minority homeowners it contends have been disproportionately affected by the foreclosure crisis.

“We have not filed records requests in any other state,” said Larry Schwartztol, staff attorney with the ACLU Racial Justice Program in New York. “Florida caught our attention because of its auxiliary court system. We’re concerned that the procedures in place in Florida are less rigorous than in a regular court proceeding.”

The ACLU is seeking all documents that would shed light on how Florida judges set up procedures to clear away the foreclosure pileup.

“We know that the foreclosure system is permeated with disarray and fraud,” Schwartztol said. “We think this is a situation where the need for rigorous procedures is more important than usual.”

The concern is that rather than ramp up oversight, the Florida courts went in the other direction, he said.

‘Minimal Due Process’

Expedited dockets are not necessarily a bad thing, said Greenberg Traurig shareholder Arthur England Jr., former chief justice of the Florida Supreme Court. Municipal traffic courts typically dispose of a case every few minutes, he said.

“One wouldn’t argue there was no due process even though disposition was quick,” he said. “People don’t generally question the honesty of the traffic officer. But from what I read in the papers, something in the foreclosure process is different from that.”

Different enough that Bank of America, Deutsche Bank and U.S. Bank were sued Oct. 28 in Miami federal court by three law firms representing homeowners seeking class certification. They accuse the banks of abuse of process and are demanding the return of property titles on wrongfully foreclosed homes.

Due process violations in the 23 states with judicial review raise a red flag that points to a fundamental defect in foreclosure courts, said Geoffrey Walsh, a foreclosure defense attorney at Boston’s National Consumer Law Center.

“There’s a problem with the dependency of courts in trusting foreclosure mills,” he said.

These law firms are designed to expedite foreclosures with utmost speed. Judges realized courts would break down completely if they had to scrutinize every mortgage, given the volume of documents in each case.

Walsh suggested the fix the courts needed may be something completely out of their hands — a revamp of foreclosure mill operations.

“It’s completely wrong for servicers to say we’ll just continue these foreclosures as we did before,” he said.

To the extent these pressures affect homeowners’ due process right, Walsh concluded, “Florida probably meets some very minimal due process standard. Keep in mind in other states you don’t even go to court.”

Seven states have some limited judicial access, but 20 states — including California and Texas — have nonjudicial foreclosures.

Since a lender in California need not enter a courtroom to enforce a foreclosure, homeowners challenging foreclosure must hire a lawyer, prepare a case and file a lawsuit to overcome state laws on nonjudicial foreclosures, said Aidan Butler, a Los Angeles foreclosure defense attorney.

“I’m envious of lawyers who get to practice in states where you have judicial foreclosure,” he said. “I’m meeting a lot of judicial resistance. … Virtually every judge is a former (state prosecutor), and they tend to be conservative. It’s such an uphill battle. Judges have the misconception that if the consumer is here making these arguments, they must have defaulted and therefore are not worthy of help.”

Fraud Claims

California judges will insist owners get current on their mortgages to halt a foreclosure, disregarding arguments that the amount owed is in dispute or that the lender may have committed fraud on the original loan, during servicing or in court filings, Butler said.

Judges looking for an easy out may dispose of cases by ruling that the statute of limitations has expired, Butler said. The great majority of consumers don’t have the resources to fight back, he added. They give up at the start, even if they have meritorious claims.

A few national banks adopted self-imposed foreclosure moratoriums in states with judicial review but have resumed their cases.

Homeowners in all states got an assist last month when the 50 state attorneys general aligned to get equitable treatment for homeowners. Ohio Attorney General Richard Cordray, who has taken a lead role, demanded banks vacate any court orders or motions based on improper paperwork and advised them to modify loans and work out payments.

But banks threatened with new costs from homeowner lawsuits and buyouts in the secondary mortgage-backed securities market have said they will vigorously defend their foreclosure rights. Risks to bank solvency are real, with estimates of refunds to investors reaching a potential $200 billion.

The Obama administration sees no systemic problem with bank practices, but contradictory testimony before the Congressional Oversight Panel on the TARP foreclosure mitigation program has been compelling.

“Robo-signing is only one of a number of alleged deficiencies,” explained Katherine Porter, a Harvard Law School professor who testified before the panel Oct. 27.

Systemic Flaws

Other common occurrences reported by defense attorneys around the nation include collection of improper fees, a lack of standing to foreclose, pursuit of foreclosure without rights in the note, mortgage origination fraud, liability to investors for poor underwriting and improper servicing.

“The key point is the vast majority of the alleged problems cannot accurately be described as ‘technicalities.’ The flaws in foreclosure systems go well beyond improper affidavits,” Porter said.

In the year since attorney Bleil was scolded by Judge Friedman, consumers have dented the bankers’ armor. But given where they started, the proper allegory might be Indians in canoes flinging arrows at battleships.

When Bleil met Friedman on Oct. 7, 2009, he was fighting for the right to put up general defenses such as unclean hands and usury because he couldn’t get the evidence he needed to be more specific. This is a standard procedure lawyers use to protect their right to discovery. Friedman saw it all as frivolous delay tactics.

On the motion on unclean hands, Friedman said: “It’s not going to happen again, is it? Because I’m hitting you with $1,000 on that one alone.”

Friedman then looked at a defense barring the lender because of usury and said: “Guess what? That’s no good, either. I’m not going to deal with crap like this, and that is what it is. That’s $1,000.”

Maybe it was just theater on Friedman’s part, but at the end of the day, the judge did not issue a sanctions order. For whatever reason, Bleil said the judge didn’t force him to pay.

One year later, Friedman is preparing to leave the bench, in part he told the Daily Business Review due to job dissatisfaction based on foreclosures.

Adolfo Pesquera can be reached at (954) 468-2616.

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