While waiting for a trial today I spent some good time talking to a good foreclosure attorney on the bank side.  He’s the kind of guy  that admits to homeowner foreclosure attorneys, “we’ve got these certain problems with this case, this document is missing, here are the problems with my witness.”  That’s exactly what good lawyers do.  They don’t play games, the don’t cheat and they follow the rules.

In the context of this conversation he described for me how he was completely disgusted by some of the wins that he had accomplished over the last several months and specifically how, in at least one instance, a court allowed him to get a Final Judgment even though he admitted to the court that he didn’t have possession of the original note.  He said, “I asked the court, will you let me get a judgment and I’ll bring the note in later?”  Not dreaming that the court would actually allow this…he told me he was quite sickened when the court was perfectly fine with this.

Can you imagine in any other context? “Your honor we don’t have the murder weapon, but please convict and we’ll get it to you later.” Or, “Your Honor, we don’t have the death certificate, but grant us judgment in this estate and we’ll get you a death certificate later.”

Well, this is happening over and over….appellate courts are even letting these things happen now, not reversing circumstances where no original note was present in court and a defense attorney properly objected.

To hear those on the other side of these arguments recognize just how bad this has become is both alarming and cause for deep concern.

I hate that courts are allowing this to happen.

4 Comments

  • Jenna LaFleur says:

    In a Quiet Title lawsuit, the Judge and wife have 3 (only in my County Recorder’s office) Wells Fargo mortgages. My atty. would not ask him to recuse himself. I filed, he said atty’s had to do it. They would not. I asked twice of him in court to recuse himself for a conflict of interest, and the impropriety. He said nothing, and did not recuse himself. He did a 10.5 pg. Tentative ruling (with prejudice) against every correct aspect of my predatory lending fraudulent foreclosure case, and ended up saying WF was dismissed with prejudice and they could sue me, a disabled elder for 20 yrs, for costs.
    Where does that leave me? My attorney said he could not take any money from me, as I was on disabled but wouldn’t say why or how he could not. He is currently in disbarment hearings at Calbar for another case.

    • Jonathan Klurfeld says:

      Disclosure: This does not constitute legal advice

      1) The judge does not have to recuse himself/herself for merely having a mortgage with that company. All that means is that the judge owes that lender money- not grounds for recusal. If the judge owned stock or had a financial interest in the lender, then recusal would be proper. That is why your lawyer did not do so.

      2) Predatory lending lawsuits never go well for consumers; just the nature of them.

      3) Your attorney should have warned you that a dismissal could lead to you paying the bank’s cost/fees. This applies to most types of cases where there is a statute/contract which provides prevailing party attorney’s fees to the prevailing party. So yes, you may be liable for the bank’s costs.

      4) If your attorney was in disbarment hearings he would have to tell his clients and likely could not have taken you as a new client. More than likely these are disciplinary hearings which could result in anything from a fine all the way up to disbarment.

  • cindy says:

    yeah I’m disgusted too – my family destroyed, all we worked for gone with no chance of coming back – my children destined to be poorer than I.

    We lost our battle, can’t afford to go on with it mentally or financially – they always win. The Chicago Federal judge doesn’t even read our pleadings and it shows (our case is Arriaga v Wells Fargo Bank, NA etal 09C2115 ILNDE. He basically changed the law regarding consumer protection. Then, the State foreclosure judge made his ruling based on the Federal judge’s ruling, ignoring our answer and pleadings.

    Wells Frago never filed FRCP 7 disclosures, ignored discovery and interrogatories in both cases, never filed and answer in either case but got summary judgement in both.

    We had not enough to get a complex litigation attorney, only my husband works, speaks little English we had 5 kids at home – I have a GED so I had to write up all the pleadings – this Judge denied us attorney help but we only had a year to file or forever lose our rights. I got us in the door, an affordable attorney no where to be found for 5 years.

    We were finally forced into bankruptcy March 2013 which is what they wanted since they lied in court – false paperwork, fraudulent backdated MERS affidavit (the affiant was one of the foreclosure attorneys). We had exercised right to rescind in 2008 on a misrepresented 2005 refinance that made our home unsaleable (sent notice to rescind within three years after servicer Wells kept us on a merrygoround of deceit for two and a half years(we were current when we sent 1st notice, and 2nd notice 2 months later). 8 months later, after we again disputed the loan and again demanded rescission so we could sell, the Servicer Wells destroyed our good credit and filed foreclosure.

    In Fed case Wells says it does not own the loan, is not the creditor but merely the servicer (would not disclose for whom) so no authority to rescind and not liable; but, in foreclosure case says it is the original creditor and holder. Its funny because a year later in the Fed case the judge dismissed our failure to rescind claim because we could not allege “current ability” tender an amount we did not know to an entity we did not know. Well how could we if Wells Frago destroyed our credit, didn’t credit all payments to a tender amount, and we were prevented from selling the home for fair value to complete tender? And yet, in that Federal case, no defendant made a specific claim for any tender (I guess because the originator, MERS, and the servicer had no right to a tender amount), and no one would disclose who had a right to be repaid.

    There are 222 docket entries in our Federal case (SJ grnted to defs this October 2013, I did not understand procedure I guess. And the State judge also granted SJ December 2013 based entirely on altered mortgage docs and false affidavits, ignoring our Answer in the matter..

    I think Fannie Mae is in on it – I found out last year that it owns the loan (on loan lookup). Oh, and get this – we refinanced 2 loans into one in 2005 – and the servicers of those mortgages never filed releases; and we received no money at closing.

    I am sure we cannot afford to hire you, but our case may be an interesting read – there were continuing TILA/RESPA violations during the pendency of the case which the judge completely ignored and several orders of the Judge feel like due process violations but who knows. I’m just not smart enough and our family has gone thru hell over all of this.

    It feels all wrong, but we can’t afford to fight – I’m at my limits of understanding procedure – I have always been an undereducated mom. Maybe theres something in our case that could help others or maybe you see to what extent the courts are willing to go to let the banks get thier way here in Chicago (home of President Obama, Mayor Rahm Emmanuel, and AG Lisa Madigan.

    I actually feel bad, because now bank lawyers are citing our case to help the banks win against other homeowners, all because I believed in justice.

    • Jonathan Klurfeld says:

      Disclosure: This does not constitute legal advice

      A few comments:

      FRCP Rule 7 disclosures state that a corporation must disclose any parent company who owns at least a 10% interest in the company involved in the lawsuit. If you sued Wells Fargo Bank, then they are the parent company of many smaller companies and Wells Fargo Bank likely has no parent company to disclose.

      The judge is unlikely to do anything about failure to respond to discovery if you do nothing about it. The judges try not to become involved in case themselves. You should have filed a motion to compel the discovery and then the judge could have ordered it to be produced in a certain time frame.

      The judge could deny you appointment of an attorney and there is no right to counsel in civil cases; only criminal cases.

      You cannot rescind a loan in 2008 you singed in 2005. Rescission is 3 days not 3 years. Therefore, as the summary judgment order says, there was never a valid rescission

      As to the 2 claims for Fair Credit Reporting and RESPA, please read the judge’s opinion. Skip the case law in just look at the explanation . It is clear why summary judgment was granted for Wells Fargo. Briefly:

      Fair Credit Reporting claim- rescission was invalid, thus Wells was entitled to report to the credit agencies.

      RESPA- your letters were not QWRs (Qualified Written Requests) as they inquired as to the origination of the loan and not the servicing. QWRs only apply to the servicing of the loan to elicit a response from the servicer.

      Thus, both claims failed and Wells got summary judgment.

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