Assembly Line, F'closure Mill Law Firm Targeted In Fla. AG Civil Probe Into Allegations Of Manufacturing False, Misleading Documents In Legal Actions

In Fort Lauderdale, Florida, The Wall Street Journal reports:

• The Florida attorney general's office is investigating possible misconduct by a large law firm that files foreclosures for banks, according to a posting on its Web site.(1) The Web site said the office is looking at whether Florida Default Law Group, based in Tampa, was involved in "fabricating and/or presenting false and misleading documents in foreclosure cases."

• Mortgage documents that are used to prove a bank has a right to foreclose "have later been shown to be legally inadequate and/or insufficient," the Web site said. A spokeswoman for Florida Default declined to comment. Ryan Wiggins, a spokeswoman for Attorney General Bill McCollum, said the investigation began last fall.

• The civil probe comes as some judges and federal prosecutors in Florida are paying close attention to how banks—and so-called foreclosure-mill law firms that work for banks—are attempting to take control of homes from borrowers in default. Judges across the country have chastised banks and their attorneys for attempting to seize properties they can't prove they own. Last month, a Florida judge said that a mortgage document filed by a bank in a foreclosure case was part of an "intentional effort to mislead" the court.

• The attorney general's office said on its Web site that Florida Default "appears to be" a client of Lender Processing Services Inc., a Jacksonville company that has said it is being investigated by the federal criminal prosecutors. LPS, which processes and sometimes produces documents needed by banks to prove they own the mortgages, has acknowledged errors with documents they processed that were filed in foreclosure cases and said they have been fixed. An LPS spokeswoman said on Thursday the company is "willing to cooperate with any regulatory body that contacts us." Ms. Wiggins said the attorney general's office recently began investigating conduct by LPS in foreclosures.

• Faulty bank paperwork has been an issue in foreclosure proceedings across the U.S. since the housing crisis took hold a few years ago. It is sometimes difficult for banks, which act on behalf of mortgage-securities investors in most foreclosure cases, to prove they own the loans.

For the story, see Florida Probing Law Firm in Foreclosures (requires paid subscription; if no subscription, TRY HERE, then click link for the story).

Thanks to Michael at 4closureFraud and Deontos .is for the heads up on the story.

(1) For the Florida AG posting, see Active Public Consumer-Related Investigation of Florida Default Law Group, PL - Case # L10-3-1095:

• Appears to be fabricating and/or presenting false and misleading documents in foreclosure cases. These documents have been presented in court before judges as actual assignments of mortgages and have later been shown to be legally inadequate and/or insufficient. Presenting faulty bank paperwork due to the mortgage crisis and thousands of foreclosures per month. This firm is one of the largest foreclosure firms in the State. This firm appears to be one of Docx, LLC a/k/a Lender Processing Services' clients, who this office is also investigating.

Fort Worth Feds Invoke Mail Fraud Statute To Bag Suspect For Allegedly Using Forged Deeds To Acquire, Convey Interests In 100+ Properties

In Fort Worth, Texas, the Star Telegram reports:

• A federal grand jury returned an indictment for mail fraud against an Arlington man accused of stealing houses. The indictment alleges that between January 2007 to Feb. 26, 2010, when he was arrested, Norris Fisher, 62, illegally acquired real estate that did not belong to him by creating and filing forged warranty deeds with the Tarrant County clerk's office.

• The properties were often vacant lots with unpaid back taxes due or they had weed liens filed against them by the city of Fort Worth. After identifying a property, Fisher would often file a forged warranty deed transferring the property to a fictitious buyer, forging the signature of the true property owner, and forging the signature and notary stamp affixed to the documents, according to the U.S. attorney's office.

• After fraudulently transferring the stolen property several times, Fisher identified real buyers and sold the property to them. These buyers were unaware that Fisher had stolen the properties by forging warranty deeds and had sold or leased the properties' mineral rights. According to the affidavit filed with the criminal complaint, Fisher acquired more than 100 real properties in Tarrant County, valued at more than $1 million.

Source: Arlington man indicted on mail fraud charge.

For the U.S. Attorney (Fort Worth) press release, see Federal Grand Jury Indicts Fort Worth, Texas Man For Mail Fraud.

Homeowner May Be Victim Of Fraudulent Title Transfer & Wants To Know What To Do

In Washington, D.C., syndicated columnist and attorney Benny L. Kass recently addessed the following question:

• My father is in his 90s and in frail health. He owns a house in the District [of Columbia], free and clear of any debt, and my cousin just told me that she now owns it. I am concerned that my cousin forged my dad's name on the deed. My father has always assured me that I would inherit the house, and he does not remember signing any documents. What should I do?

For his response, see Addressing concerns about fraudulent property deed transfers.

82-Year Old, Blind, Diabetic, Wheelchair-Bound Mom Accuses Son In Lawsuit Of Using POA To Sell $650K Home Out From Under Her

In Brooklyn, New York, Courthouse News Service reports:

• A blind, wheelchair-bound 82-year-old mother claims her adult son sold her $650,000 home out from under her for nothing - taking only a $6,000 kickback for himself. There was "no contract ... no closing, no closing statement ... nor did plaintiff receive a single dollar ... the only money that was exchanged in this transaction was $6,000" that Bapaz Aderet Properties Corp. ["BAP"] paid her son, Evelyn Popalardo claims in Kings County Court.

• Evelyn Popalardo is 82, diabetic, "legally blind, requires a wheelchair to move around and is housebound." She says that in March 2009 her son Andrew, 52, "acting without [her] knowledge or consent and pursuant to an alleged durable power of attorney allegedly 'sold' - but in reality gave - her house to BAP."

***

• She says that when her attorney called Bapaz Aderet Properties, the company had the brass to try to sell her house back to her for $80,000. She seeks declaratory judgment, return of title, and punitive damages fraud, breach of fiduciary duty, deceptive trade and aiding and abetting. She sued her son, BAP, and Yuval Golan.(1)

For more, see Son of the Year.

For the lawsuit, see Popalardo v. Bapaz Aderet Properties Corp., et al.

(1) She is represented by Diane Lutwak, Steven Banks, and Roger J. Hawke, Of Counsel, with the non-profit law firm, The Legal Aid Society - Brooklyn Office for the Aging.

Oregon Man Accused Of Using POA To Pocket $122K+ In Proceeds From Sale Of Ailing Mom's Home After Getting Medicaid To Foot Her Nursing Home Bills

In Multnomah County, Oregon, The Oregonian reports:

• A 52-year-old man is accused of defrauding his elderly mother, who suffered from dementia and was placed in an adult foster home, and fraudulently applying for Medicaid to cover his mother's nursing home bill while he spent his mother's savings. Richard Dean Stone faces 21 counts of first-degree criminal mistreatment, 14 counts of first-degree theft and 8 counts of second-degree theft.

***

• Stone is accused of spending $122,962 from the sale of his mother's home for his own benefit, according to a court affidavit. He used the money for gambling, trips, shopping and to pay his own bills, Portland police say. His mother had given her son her power of attorney in 2003. She lived on her own until October 2006, when she was placed in an adult foster home due to dementia and her risk of falling. The woman had less then $1,000 in cash assets when she entered the home, according to police.

***

• Police say Stone failed to notify authorities that the home was sold and his mother had access to the money to help pay for her care. "He allowed Medicaid to continue paying his mother's expenses not covered by Social Security and insurance until her death on Oct. 10, 2008," a probable cause affidavit says.

For the story, see Portland man accused of pocketing his elderly mother's assets and fraudulently applying for Medicaid.

BofA Accused Of Jerking Around 91-Year Old WW II Vet On Mortgage Payments

In Martinsburg, West Virginia, The Huffington Post reports:

• Peter Ruplenas, a 91-year-old combat photographer who served in World War II, Korea, and Vietnam, is now battling Bank of America in federal court. The bank pretended not to receive Ruplenas' mortgage payments, which he made through a bankruptcy trustee, and tricked Ruplenas into thinking that he himself had to make the payments directly, the lawsuit alleges.

• Additionally, Ruplenas had applied for a modification under the Obama administration's Making Home Affordable program -- but for months, he received foreclosure notices at his house in Gerrardstown, W.V., causing "extreme emotional distress."

***

• Ruplenas told the American Forces Press Service in 2003 that being a combat photographer in three wars was "a beautiful job." He earned a Purple Heart after being shot in the Korean War.

For more, see Peter Ruplenas, 91-Year-Old Vet, Sues Bank Of America Over Mortgage Malfeasance.

Federal Appeals Court Gives Indian Tribes The "Go-Ahead" To Buy Real Estate, Stiff Counties On Lawfully-Owed Property Taxes & Get Away With It

In Verona, New York, The Oneida Daily Dispatch reports:

• A three-judge panel in the Second Court of Appeals ruled Tuesday that counties cannot foreclose on property owned by the Oneida Indian Nation ["OIN"] for non-payment of taxes and reaffirmed the Nation’s immunity.(1).

***

• The ruling, by Judge Jose Cabranes, Robert Sack and Peter Hall, concludes that the OIN is immune from foreclosure unless Congress authorizes the lawsuit or the Nation waives its immunity.

• “The holding in this case comes down to this: An Indian tribe can purchase land — including land that was never part of a reservation; refuse to pay lawfully-owed taxes; and suffer no consequences because the taxing authority cannot sue to collect the taxes owed,” Cabranes said. “This rule of decision defies common sense. But absent action by our highest court, or by Congress, it is the law.”

***

• While Madison County Attorney John Campanie said he was still reviewing the details of the court’s decision, he said it was clear that the court intends for the case to be heard before the Supreme Court. “It is probable that Madison County will act on the judges’ words and seek action to, as the judges put it, reunite law and logic,” he said. “Further, referring to the right to tax but the absence of the right to foreclose, these judges characterized this result as being ‘so anomalous’ that it ‘calls out’ for the Supreme Court action.”

For more, see Court rules that Madison and Oneida counties can’t foreclose on Oneida Indian Nation land.

For the ruling, see Oneida Indian Nation of New York v. Madison County and Oneida County, New York (2nd Cir. April 27, 2010).

(1) According to the story, the same decision was made in 2005 by U.S. District Judge David Hurd in the lawsuit between the Nation and Madison and Oneida counties. Tuesday’s ruling was a result of a 2007 appeal of the lower court’s decision.

Legal Non-Profits Get Go-Ahead To Claim Prevailing Party Attorney Fees In Successful Civil Lawsuits

Courthouse News Service reports:

• Legal Services Corporation may claim attorneys' fees under federal and state law allowing the fees to be awarded, according to an announcement(1) that an interim rule is final as written. The Feb. 11 interim rule was based on the elimination of the statutory prohibition on attorney's fees for the nonprofit in its fiscal year 2010 appropriate legislation.

Source: It's Final: Nonprofit Keeps Attorney Fees.

(1) For the announcement in the Federal Register (April 26, 2010), see Fee-Generating Cases; Use of Non-LSC Funds, Transfers of LSC Funds, Program Integrity; Attorneys' Fees:

• [LSC] agrees that the restriction [on claiming prevailing party attorney fees] imposes unnecessary burdens on recipients and places clients at a disadvantage with respect to other litigants. Specifically, the ability to make a claim for attorneys' fees is often a strategic tool in the lawyers' arsenal to obtain a favorable settlement from the opposing side. Restricting a recipient's ability to avail itself of this strategic tool puts clients at a disadvantage and undermines clients' ability to obtain equal access to justice. The attorneys' fees restriction can also be said to undermine one of the primary purposes of fee-shifting statutes, namely to punish those who have violated the rights of persons protected under such statutes. In addition, in a time of extremely tight funding, the inability of a recipient to obtain otherwise legally available attorneys' fees places an unnecessary financial strain on the recipient. If a recipient could collect and retain attorneys' fees, it would free up other funding of the recipient to provide services to additional clients and help close the justice gap. More fundamental, the restriction results in clients of grantees being treated differently and less advantageously than all other private litigants, which LSC believes is unwarranted and fundamentally at odds with the Corporation's Equal Justice mission.

***

• With the repeal of the restriction, recipients are permitted to claim and collect and retain attorneys' fees with respect to any work they have performed for which fees are available to them, without regard to when the legal work for which fees are claimed or awarded was performed. LSC considered whether recipients should be limited seek or obtain attorneys fees related to ``new'' work; that is, work done only as of the date of the statutory change or the effective date of the Interim Final Rule. LSC rejected that position because the attorneys' fees prohibition applies to the particular activity of seeking and receiving attorneys' fees, but is irrelevant to the permissibility of the underlying legal work. [...] LSC [] believes that not limiting the work for which recipients may now seek or obtain attorneys' fees will best afford recipients the benefits of the lifting of the restriction. There may well be a number of ongoing cases where the newly available option of the potentiality of attorneys' fees will still be effective to level the playing field and afford recipients additional leverage with respect to opposing counsel in those cases.

Foot-Dragging Mortgage Lender Yields To HOA Demand; Abandons Foreclosure On Unwanted Collateral, Releases Security Interest In Condo Unit

In Miami Beach, Florida, WFOR-TV Channel 4 reports:

• A new tactic in dealing with foreclosed condo units is being used by one attorney in South Florida. [...] Attorney Ben Solomon of the Association Law Group explained, "The bottom line is the banks don't want to assume the liability associated with the unit, including the obligation to pay maintenance assessments to the association."

• Solomon is now challenging the banks to foreclose or get out of the way. "The bank has to make a decision as to if they are going to take title to the financially upside down unit, or release their mortgage," said Solomon. He calls it a mortgage terminator.

• He demanded Citibank to foreclose on unit 14 in [one] building. Surprisingly, instead of an 18 month legal fight, Citibank wrote off the debt, and handed the title over. [...] Solomon believes this case will set a precedent for more cases. "They can't sit on the sidelines anymore. And that's this legal strategy. It's to force them into making a decision," said Solomon.

• Either way the association wins collecting dues or now title from the bank. Solomon says he plans to use this tactic on 12 more properties. It's an interesting concept. Forget foreclosure or refinance. Just ask the bank for the title. Who knows, maybe they'll give it to you.(1)

For the story, see Condos Demanding Foreclosure On Abandoned Units (Condo Associations Plagued With Abandoned Units Demanding Banks To Foreclose Or Give Up Title), (or go here for the video).

See also, Forget Short Sales, Just Hand Over Title:

• In the case of this Miami Beach condo the unit owner actually moved out in 2007 when the association foreclosed on the unit. [...] The association has waited patiently for the bank to foreclose but three years later nothing has happened. Citibank knew they were going to take a bath on the unit mortgaged at $166,000 ... Appraised today under $60k.

(1) Based on the WFOR-TV Channel 4 video report, it appears that, after waiting around for a couple of years after it took title to the unit as a result of conducting its own lien foreclosure action, the condo association filed an action to quiet title against Citibank demanding, essentially, the lender to either "fish or cut bait" with respect to its foreclosure rights (assuming, of course, Citibank had any foreclosure rights in the first place by establishing that it had legal standing to foreclose).

NY Alleged Multi-Billion $ Bogus Lien Racket Used In Intimidation, Extortion, Racket Against Local Officials, Say Plaintiffs In RICO Lawsuit

In Albany, New York, Courthouse News Service reports:

• Ulster County and three towns in New York say they're the targets of a multibillion-dollar revenge and extortion plot aimed at "disrupting the administration of local government," because a town issued two traffic tickets to the plot's alleged ringleader.

***

• The towns say the plot is revenge for two tickets that lead defendant Richard Enrique Ulloa received at a traffic stop in Rosendale, a rural town in Ulster County, in the Hudson Valley. Ulloa was sent to Ulster County Jail after failing to provide identification to Rosendale Town Justice Robert Vosper, a plaintiff in the case.(1)

• "Shortly thereafter, defendant Richard Ulloa began a pattern of harassment and attempted extortion towards plaintiffs, including, but not limited to, filing purported maritime liens and UCC statements containing fraudulent statements asserting that plaintiffs owed defendants amounts totaling several billion dollars," the complaint states. "The liens and UCC statements were not only fraud, but part of a course of intimidation by defendant Richard Ulloa" and others.(2)

***

• They demanded more than $2.8 billion from the plaintiffs through a myriad of phony criminal complaints and invoices, according to the complaint. Adding to Richard Ulloa's fury was the fact that "property owned by defendant Richard was the subject of a foreclosure proceeding venued in Ulster County," according to the complaint. "Ulloa attempted to file a purported 'deed' removing the foreclosing party's interest in his property. The Ulster County Clerk rejected the 'deed' offering."

For more, see Towns, Judges Say They're Being Extorted.

For the lawsuit, see County of Ulster, New York, et al. v. Ulloa, et al.

(1) The plaintiffs in this federal RICO lawsuit include: Ulster County, the Towns of Lloyd, Rosendale and Ulster, and 15 people, including judges, municipal attorneys, and a chief of police.

(2) Sara Ulloa, Jeffrey-Charles Burfeindt, Ed-Charles Parenteau, Raymond Tompkins, Katherine A. Cairo Davis and Kathy Steinhilber are the other defendants.

Consumer Resistance Continues To Mount Against Bill Collectors, Zombie Debt Buyers

The New York Times reports:

• Even as collectors try to recoup debts from millions of Americans struggling to pay their bills, a small but growing number of lawyers and consumers are fighting back against what they describe as harassment, unscrupulous practices — and, most important to their litigiousness, violations of the Fair Debt Collection Practices Act.

• In fact, 8,287 federal lawsuits were filed citing violations of the act in 2009, a 60 percent rise over the previous year, according to WebRecon, a site that tracks collection-related litigation and the most litigious consumers and lawyers on behalf of debt collectors.(1)

***

• Debt collectors and debt buyers are the targets of litigious consumers, since the debt collection law primarily applies to third-party collectors. Peter Barry, a Minneapolis trial lawyer, is so bullish on the future of debt collection litigation that he holds several “boot camps” each year to share his secrets with other lawyers who want in on the action. If the debtor wins a court case under the act, the debt collector must pay the lawyer’s fees.

***

• [58-year-old accountant and ex-bill collector Steven] Katz can also claim some credit for the increase in lawsuits. For six years, he has run a free Web site called Debtorboards.com, where people share tips on topics like keeping a paper trail and recording calls from collectors. He said the site received two million hits in 2009, a 60 percent increase over the previous year.

• “Debtorboards is geared to help people use the laws as they are on the books as both a shield and a sword,” said Mr. Katz, who says he has won $36,000 from his own litigation against collection agencies. (Since many of the settlements are confidential, it is difficult to prove the claims of Mr. Katz and others). Of course, debt collectors are hardly pleased with the litigation trend.

For more, see Learning How to Fight the Collector.

(1) The story points out that the U.S. Supreme Court made it even easier for consumers to use the courts to fight debt collectors, ruling that collectors cannot be shielded from suits by claiming they made a mistake in interpreting the law. See Supremes Reverse Lower Courts; Say Attorney Screw-Up When Pursuing Foreclosure Action Is Indefensible As "Bona Fide Error" Under FDCPA.

Testimony Of MERS CEO, Senior VP Available Online

Available at GetDShirtz.com are depositions of Mortgage Electronic Registration System (MERS) CEO R.K. Arnold and Senior VP and Corporate Secretary William Hultman which were taken in recent litigation, as well as a hearing transcript from Dalton et al v. Citimortgage et al. These documents may be helpful to every borrower with loans involving MERS and should pass along to their legal counsel.

Go here for the links to the above-referenced documents.

Documents available online courtesy of Mike Dillon at GetDShirtz.com.

Lender Accused Of Improper Trash-Out After Selling Former REO To Michigan Homebuyer In All-Cash Deal

In Grand Rapids, Michigan, WOOD-TV Channel 8 reports:

• A Gowen couple is filing a federal suit against Deutsche Bank National Trust Company, saying the bank not only stole their belongings, but also, their sense of security. Rick and Sherry Rought say the same bank that sold them a home for their adult daughter is breaking into the house and treating it as a foreclosure.

• The family's plan was simple. The Roughts bought the foreclosed home in cash and fixed it up, then commuted from their primary home, moving in little by little. But six months after the purchase from Deutsche Bank, things started to get complicated.

• "We just went up there one day and there was a note on the door from this company -- a trash-out company," Rick Rought said. "The doors were broken into." The defendants not only changed the locks on the home, but stole some possessions, the Roughts said. All kinds of things were taken -- from a dining room set to the American flag mounted outside the home. "We looked and the curtains were gone, then we started to panic and when we went in, there was virtually nothing left," Sherry Rought said. "Everything was swept out and gone."

• The couple got the Michigan State Police involved, but the investigation led to dead ends: unreturned messages at Deutsche Bank and a third-party company, Field Asset Services, hired by the bank to maintain the property during foreclosure. Field Asset Services broke into the home two other times, the Rought family said, treating the property as though it was still foreclosed.

For the story, see 'Bank acts like home is a foreclosure' (Gowen couple files lawsuit against Deutsche Bank).

See also, WZZM-TV Channel 13: Family's recently purchased home, gutted by property removal service:

• The Roughts are telling their story with help from Massachusetts attorney's Joseph DeMello and Carlin Phillips. "They have suffered what many people throughout the United States have been suffering and that is unconscionable conduct at the hands of these multi-billion dollar banks," says DeMello.(1)

(1) DeMello currently represents a Massachusetts couple who got similarly screwed when they bought a foreclosing lender's REO on an all-cash basis, only to have the premises trashed out shortly thereafter. See ABC News: No Mortgage, Still Foreclosed? Bank of America Sued for Seizing Wrong Homes (In the Last Four Months, Three Homeowners Have Sued Bank of America for Mistakenly Foreclosing on Their Homes).

Judge Gives Go-Ahead To F'closing Lender Despite Lack Of Conclusive Evidence Of Standing As Ch. 11 Debtors Refuse To Make Adequate Protection Payments

A recent ruling by a U.S. Bankruptcy Court in Northern California allowed for a foreclosure action to continue, despite the lenders' failure to conclusively establish that it had standing to foreclose, where a Chapter 11 debtor/couple adamantly refused to make "adequate protection payments" as apparently required by the bankruptcy law, pending full adjudication of the standing issues. In allowing the lenders to go ahead with foreclosure actions, the court made the following comments (bold text is my emphasis, not in the original text):

• In this chapter 11 case the pro se debtors have steadfastly and repeatedly resisted motions for relief from stay, while at the same time steadfastly and repeatedly refusing to make payments pending resolution of their disputes about the standing of those secured creditors to seek such relief.

• The court is sympathetic with any debtor who finds it difficult, if not sometimes seemingly impossible, to wade through the maze of transferred notes, assigned deeds of trust, ethereal beneficiaries, and information and belief allegations about what some predecessor loan servicing agent did with the original note and deed of trust.

• But it is equally unsympathetic with debtors shedding crocodile tears about making adequate protection payments while at the same time claiming all the benefits the bankruptcy law provides them. If you want to gamble in the casino and hope to hit the jackpot, you can't expect to win by using house money. You've got to put a "little skin in the game". Because these debtors have refused to do so, relief from stay could hardly be more appropriate.

For the ruling, see In Re Aniel, Bankruptcy Case No. 09-30452DM (Bankr. N.D. Cal. April 21, 2010).

(1) The court when on to give this rationale for its ruling (bold text is my emphasis, not in the original text):

• Here, Creditor has made a colorable claim that it has standing by showing that it holds the note, endorsed in blank. Debtors do not dispute that they executed the note and deed of trust which are the subject of the MRS [motion for relief from stay]. If Debtors wish to maintain the status quo pending resolution of matters that require more plenary proceedings than relief from stay motions (e.g., adversary proceedings for declaratory relief to determine the proper holder of a note; objections to the claim of the creditor; confirmation of a Chapter 11 reorganization plan that restructures the claim of the creditor, etc.), the conventional way to do so is to make adequate protection payments in the meantime.

• Because of Debtors' adamant refusal to make such payments the court is less tolerant than the Wilhelm, Jacobson, and Hwang courts in one material respect: whether debtors should provide adequate protection payments to the Creditor until the standing issues are fully adjudicated. They have not made any payment on this note (or the notes secured by the six other properties in which Debtors assert an ownership interest) in over a year while they have been in bankruptcy. They failed to make at least five prepetition payments on the note secured by the Property. They have no equity in the Property. They have used cash collateral without permission.

• Under such circumstances, justice dictates that Debtors make adequate protection payments pending resolution of the standing issues. The court will not continue the stay with all of the risk being borne by the creditor. In circumstances where there is no doubt that the Debtors signed the note that is the subject of the motion, (and, frankly, not much doubt that ultimately Creditor will be able to "connect the dots" by showing the chain of title of the note and deed of trust), denial of relief from stay when adequate protection payments could be made would be patently unfair to Creditor and impose on it all of the risk of further deterioration of its security without protection.

• Since Debtors have no inclination to make payments, it is abundantly clear that once the Creditor (and other similarly situated secured creditors on other properties of Debtors) proves its standing, Debtors will allow the Property to be foreclosed. There is simply no point in delaying the inevitable.

• Debtors were not unprotected or left without remedy if they had made the adequate protection payments as ordered by the court. As the December 31 order provides, the adequate protection payments consist of the monthly payments due under the note undisputedly executed by them, and Creditor's counsel was to hold such payments in trust pending resolution of the standing challenge. If Debtors had ultimately prevailed, the payments (plus interest) would have been returned to Debtors. Moreover, the order granting relief from the automatic stay does not preclude Debtors from challenging in state court the legitimacy of Creditor's right to foreclose.

• Debtors chose not to comply with this court's December 31 order. They chose not to make the adequate protection payments. They must accept the consequences of their decision. Under the circumstances described in this memorandum decision, the court questions whether the Debtors' challenges to standing are made in good faith. The court therefore did not and will not vacate the order granting relief from stay.

MERS "The Veiled Man Wielding The Home Foreclosure Ax" & "A Tax Evasion Broker"?

In Salt Lake County, Utah, The Salt Lake Tribune recently spotlighted Mortgage Electronic Registration Systems (MERS), a loan registry designed to save the home loan industry millions of dollars on paperwork and recording fees, and the role it plays in foreclosure actions:

• Here and nationally, the company's legal status as a party in these actions is increasingly being challenged. "This is one of the buried, yet-to-emerge bombs in the whole mortgage crisis," said Christopher Peterson, a University of Utah law professor and author of the first scholarly analysis of MERS and its legal underpinnings, to be published this spring in the University of Cincinnati Law Review. "This has the potential to fundamentally affect the trajectory of our recovery."

• MERS officials vigorously disagree, but Peterson contends the MERS system has violated a deep-seated principle of American law -- transparency in land-ownership transactions -- by effectively removing much of that information from the public record. In so doing, Peterson says, MERS also has served as "a tax evasion broker," denying counties millions of dollars in recording fees -- revenue that might otherwise have funded essential public services.

• And now, by allowing actual lenders to pursue foreclosures under MERS' name instead of their own, Peterson says the company is acting as a "foreclosure doppelganger." "Throughout history, executioners have always worn masks," the U. professor writes in his article, Foreclosure, Subprime Mortgage Lending, and the Mortgage Electronic Registration System. "In the American mortgage lending industry, MERS has become the veiled man wielding the home foreclosure ax."

***

• Amid the current explosion in foreclosure actions across the country, courts in Nevada, Florida, Minnesota and elsewhere have upheld MERS standing as a foreclosing party. MERS also points to a 2009 federal case in Utah that affirmed its authority to exercise certain legal powers accorded to the lender, including the right to foreclose.

• But several MERS foreclosures have bogged down when parties could not produce the original loan or "blue-ink'' documents on judicial demand. In September, the Kansas Supreme Court ruling took a dim view of the idea of a "nominee'' of the lender filing foreclosures(1) -- a position that some observers see as hostile to the MERS approach.

For more, see Loan registry raises legal questions (Foreclosures: Courts, legal scholars question company's role).

(1) Landmark Nat'l Bank v. Kesler, 289 Kan. 528; 216 P.3d 158, 2009 Kan. LEXIS 834 (2009), affirming Kansas Court of Appeals in Landmark Nat'l Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177, 2008 Kan. App. LEXIS 138 (2008).

Assembly Line Attorney Does "Ralph Kramden" Imitation When Judge Seeks Explanation For Bogus Affidavit Filed In Foreclosure Action

The New York Post reports:

• GMAC Mortgage got slammed by a Florida judge this month -- and that may be good news for some of the 1,234 New York homeowners hit with a foreclosure action by GMAC since the beginning of 2008.

• In that case, Judge Anthony Rondolino voided a GMAC foreclosure win after he found out legal papers filed by the company with the court to steamroll its way over homeowner Debbie Visicaro were faulty. They were filed by an employee of GMAC's law firm who had no personal knowledge of the faulty mortgage's position. In short, they were based entirely on hearsay.

• Lawyers familiar with foreclosure actions filed by law firm mills, as was done in this case, say such instances aren't rare. Visicaro, like most of the New York homeowners, at first decided to fight the foreclosure action without a lawyer. She didn't know that the law firm employee was guessing in his court papers. But Visicaro finally hired a lawyer, Michael Alex Wasylik, who pointed out the flimsy evidence to the judge who then admitted he made a mistake when he first awarded GMAC a quickie legal win.

• When the GMAC lawyer couldn't explain away the bad evidence -- and could only manage a Ralph Kramden-like(1) hamina-hamina-hamina -- the judge barked: "You're going to have to speak up. I know that when you're getting pummeled, it's hard to talk loudly."

• "You know what I'd really like to see?" Rondolino said. "I'd like to see in one of these cases where a defense lawyer cross-examines, takes a deposition of these people, and we can see whether they ought be charged with perjury for all these affidavits."

Source: Fla. judge reverses GMAC loan.

(1) For those of you out there under the age 0f 80, Ralph Kramden is a character in the 1950's TV situation comedy The Honeymooners, played by the late actor Jackie Gleason.

Oklahoma Couple Beats Off Foreclosure As Lender Fails To Produce The Note, Prove Right To Collect

In Forest Park, Oklahoma, The Oklahoman reports:

• The Rev. Horace Scott for six years struggled to keep his house from being foreclosed on. Last week he learned he won’t lose his home. When it came down to it, no one could prove who actually owned what he thought was his.

• "In the old days, you got a loan to buy your house from a nearby bank,” explained Scott’s attorney, Roland Combs. The mortgage note, or the instrument of the debt containing the payment terms and details of it, stayed with the bank along with the mortgage that is signed by the borrower and is filed with the county clerk. The mortgage secures the debt obligation with the property.

• "Then, someone on Wall Street got the idea to use those notes as securities so they could be invested,” Combs said. "Notes were sold and combined and put into a pool to invest in by investors.” And sometimes, along the way, exactly what investor or bank has the original note becomes a mystery.

***

• [L]ike so many mortgage notes pooled and used as investment vehicles, it wasn’t clear who held the original note or had a right to collect on the debt. Combs objected in court to Bank of New York’s claim that they had a connection to the Scotts’ debt because their name wasn’t on the mortgage or the note. On two occasions the bank didn’t respond to the objection. For this reason, a judge ruled the bank couldn’t collect. State law requires banks prove they have a mortgage and note together in order to foreclose on a home.

For the story, see Home loan confusion puts end to foreclosure of Oklahoma reverend (After housing bubble, toil and trouble, preacher wins).

Wells Fargo Sold Home Out From Under Me Despite Payments On Loan Modification Agreement, Says Homeowner In Lawsuit

In Las Vegas, Nevada, the Las Vegas Review Journal reports:

• When W.T. Joseph "Tyree" Brown, a 39-year-old sales manager, lost his job and tried to negotiate a home-loan modification, he became entangled in a situation as strange as science fiction, court documents suggest. Things were not as they seemed to be, according to a lawsuit filed in Clark County District Court. Brown said he now fears he will lose his home.

• In his lawsuit, Brown said he tried to negotiate a permanent loan modification with Wells Fargo Bank. But after several months of payments under a trial loan-modification program, the bank surprised him by foreclosing and selling the house to an investment company.

***

• District Judge Valerie Adair has scheduled a hearing for May 5 to consider a motion for a preliminary injunction to replace the temporary restraining order. Alternatively, she may dismiss the lawsuit.

For more, see Modification and misery: Lawsuit claims house sold from under homeowner after push to alter loan.

California Woman Cops Plea To Duping Mentally Impaired Homeowner Into Deeding Over Title To Property, Then Pocketing $336K On Subsequent Refinance

In Santa Clara County, California, the San Jose Mercury News reports:

• A San Leandro woman who defrauded a vulnerable San Jose woman by illegally refinancing her house and taking an estimated $336,000 pleaded guilty Friday to real estate fraud and grand theft charges, according to the Santa Clara County District Attorney's Office.

• Diana Marks, 45, is facing a four-year prison sentence, according to the district attorney's office. Marks was arrested in May 2009 after a concerned neighbor of the victim's tipped off the district attorney's real estate and elder-dependent adult fraud unit, which investigated the case.

• Prosecutors say Marks persuaded the woman into gift-deeding to her the title of the victim's house. The victim had suffered brain injuries from an accident years earlier and did not understand the transaction, according to prosecutors.

• Marks told the victim she was going to help her get rid of about $26,000 worth of liens levied against her home, which is valued at about $300,000. Except for the liens, the victim owned her house. After removing the liens, Marks refinanced the house and cashed out its remaining equity. Marks gained nearly $336,000, most of which was spent on her family, according to prosecutors.

• When it was time to pay the mortgage, Marks defaulted on the loan and the house went into foreclosure. The victim lost her house and all of its equity and was at risk of eviction. Marks is scheduled to be sentenced Sept. 23, when she will be ordered to pay restitution as a condition to the plea, according to the district attorney's office.(1)

Source: San Leandro woman pleads guilty to defrauding San Jose homeowner.

(1) Unwinding or undoing a scam like this requires the filing of a civil suit in which, among other things, a determination is sought as to whether the deed signed by the unwitting victim is void, or is merely voidable. See Schiavon v. Arnaudo Bros., 84 Cal. App. 4th 374; Cal.Rptr.2d 801 (Cal. App 6th Dist. 2000), for California case law that references the propositions that:

• A deed is void if the grantor's signature is forged or if the grantor is unaware of the nature of what he or she is signing. (Erickson v. Bohne, supra, "130 Cal.App.2d at pp. 555-556.)
  
  A voidable deed, on the other hand, is one where the grantor is aware of what he or she is executing, but has been induced to do so through fraudulent misrepresentations. (Fallon v. Triangle Management Services, Inc. (1985) 169 Cal.App.3d 1103, 1106 [215 Cal.Rptr. 748].) The same rules apply to the reconveyance of the property interest under a deed of trust as to the conveyance of property by grant deed. (Wutzke v. Bill Reid Painting Service, Inc. (1984) 151 Cal.App.3d 36, 43 [198 Cal.Rptr. 418] (Wutzke).)

If the deed is found to be void, a subsequent bona fide purchaser for value is not protected by the state recording statutes, in which case his/her interest is a nullity. If the deed is found to be voidable, a subsequent conveyance to a bona fide purchaser will be recognized as valid. Fallon v. Triangle Management Services, Inc. (1985) 169 Cal.App.3d 1103 [215 Cal.Rptr. 748]:

• A deed obtained as a result of fraud committed against the grantor or by use of undue influence by the grantee may be rescinded by the grantor. (Rogers v. Warden (1942) 20 Cal.2d 286 [125 P.2d 7].) If a grantor is aware that the instrument he is executing is a deed and that it will convey his title, but is induced to sign and deliver by fraudulent misrepresentations or undue influence, the deed is voidable and can be relied upon and enforced by a bona fide purchaser. (Peterson v. Peterson (1946) 74 Cal.App.2d 312 [168 P.2d 474]; Conklin v. Benson (1911) 159 Cal. 785 [116 P. 34].)

• In Conn. Life Ins. Co. v. McCormick (1873) 45 Cal. 580, the Supreme Court held a deed voidable, not void, if obtained as a result of undue influence or compulsion. Such a deed "stands on the same footing as a deed procured by fraud." The court concluded that a deed or mortgage procured by duress cannot be set aside as against a party purchasing in ignorance of the facts constituting the duress, that is to say as against a purchaser for a valuable consideration and without notice of the duress. Until a voidable deed is declared void it is fully operative. (Frink v. Roe (1886) 70 Cal. 296 [11 P. 820].) Civil Code section 1107 provides: "Every grant of an estate in real property is conclusive against the grantor, also against everyone subsequently claiming under him, except a purchaser or incumbrancer who in good faith and for a valuable consideration acquires a title or lien by an instrument that is first duly recorded."

For more, see Unwinding An Abusive Or Fraudulent Real Estate Transaction? Determining If The Deed Is Void, Or Merely Voidable.

Rent Skimming Scam Stings Would-Be Buyer Of Elder Care Home Under Lease-Purchase Deal With Owner; Leaves Unwitting Seniors Facing The Boot

In Northern California, The New York Times reports:

• Sometimes even the licensed administrators managing an elder care home have been blindsided by an eviction notice resulting from a mortgage default. Inocencia Arindaeng, the administrator of a facility in Walnut Creek, Calif., has said in court documents that this happened to her.

• She had signed a “lease to purchase” agreement with the owner of the property in 2007, according to court records, and diligently paid her monthly rent to the owner while caring for her elderly charges, who range in age from 86 to 97. The complaint said the owner did not use Ms. Arindaeng’s money to pay the mortgage. Ms. Arindaeng did not know the extent of the financial mess she was in until she and the elderly tenants she cared for received an eviction notice on March 18, 2009.

Source: Elder-Care Home Foreclosures, Without Warning.

Underwater Homeowner Uses Short Sale, Leaseback Deal To Shed Onerous Bank Debt While Retaining Possession Of Property & Future Right To Repurchase

In Akron, Ohio, WKYC-TV Channel 3 reports:

• Dave Droge had few options when he lost his job in 2008. So he took a chance, a risk that not only kept his family from losing its home to foreclosure but also helped reduce a mammoth debt he likely never would pay off. "I had to either refinance or sell the home or I'd lose it," he said.

• Droge applied for help with American Homeowner Preservation (AHP), a private group that came to Akron 18 months ago offering to help whose mortgages were under water -- owing more than their homes were worth -- a chance to reduce their debt. AHP's plan, which was called too risky by Summit County leaders and others,(1) allowed the group to negotiate a buyout of underwater mortgages with a written commitment to sell the home back to home owner at a reduced rate within five years.

• Droge owed nearly $200,000 on his home, valued at just $160,000. After taking a risk with the AHP program, Droge's home recently closed on a short sale at $51,000. While it's now owned by a private investor, the home is under contract that allows Droge to buy it back within five years at a cost of $59-65,000, less than a third of what he once owed.

For more, see Akron man takes chance, saves home from foreclosure.

(1) Presumably, the plan was considered risky because lenders who OK short sales combined with a leaseback and buyback option are probably doing so unwittingly, being kept in the dark about the short sellers' continuing possession of the premises, and their retention of an option to buy back the home in the future at an amount significantly lower than what the lender is owed. Failure to fully disclose any contemporaneous side deals to the lender/loan servicer approving the short sale, or any lender financing the short sale, could land the participants in these deals in hot water. See:

• U.S. Attorney (Bridgeport, Connecticut) press release: Two Connecticut Real Estate Agents Charged with Engaging In Short Sale Mortgage Fraud Schemes (Feds indict two in alleged short sale flipping scam using straw buyers to dupe lenders into accepting less than full payment on underwater loans),
• U.S. Attorney (Manhattan/NYC) press release: Four Indicted In $3 Million Mortgage Fraud And Foreclosure Rescue Scheme (Feds describe short sale flipping deals and sale leaseback foreclosure rescue arrangements in one recent indictment of ten suspects; for the indictment, see U.S. v. Bills, et al.),
• U.S. Attorney (Phoenix, Arizona) press release: Foreclosure-Rescue Schemers Indicted (Feds indict pair in alleged scheme abusing HUD "short sale" program to pocket illegal profits by flipping homes facing foreclosure).

See also, The Stockton Record: Home program savior or sketchy? (Buyback investor deals risky, some experts say).

Jury Convicts POA Abuser Of Ripping Off 89-Year Old Woman; Care Home Staff's Suspicions Raised After Scammer Put Victim's £300,000 Home Up For Sale

In Exeter, Devon (UK), the Herald Express reports:

• A "greedy" 67-year-old man has been found guilty of defrauding his elderly neighbour out of £40,000. Robert Cole, of Ilsham Marine Drive, Torquay, abused his position as power of attorney over the affairs of Hilda Falk, a jury at Exeter Crown Court found. Cole denied one charge of fraud but the jury returned a unanimous verdict. [...] The verdict brought to an end a five-day trial during which the court was told that Cole had gained control over his neighbour's financial affairs and then exploited that to pay for his failing business.

***

• Suspicions were only raised after Mrs Falk had moved into residential care at Sundial Care Home in Torquay. Staff were puzzled by her diminishing financial assets. Cole put her house on the market and changed the locks.(1) Speaking during a police interview in 2008, Mrs Falk, who has since died, said: "I thought I could trust him but I found I couldn't."

For the story, see Greed 'overcame' man who took £40,000 from elderly neighbour.

(1) See: Man 'put home of neighbour up for sale':

• [Robert Cole] stole £42,000 from his elderly neighbour to pay for his mortgage and failing business[, ... ] then put the 89-year-old's £300,000 house on the market and attempted to auction her belongings when she went into a care home 'with eyes on the main prize', the jury has heard on the first day of his trial for fraud.

Renters Say "You Lend It, You Mend It!" As Lawyers Cite NY Legal Precedent In Attempt To Hold Banks Responsible For Repairing Property In Legal Limbo

In New York City, the Daily News reports:

• Thousands of city tenants living in foreclosed apartment buildings - many with deteriorating conditions - saw a glimmer of hope Wednesday. Lawyers for Legal Service NYC filed a motion in Bronx Supreme Court that would force banks foreclosing on a property to maintain the building's upkeep while the case is pending.

• A foreclosure, especially a contested one, could drag on for years, leaving the building without a tangible owner to make repairs for some things as simple as a runny faucet or as serious as toxic mold. "As complicated as this problem is, we're not going to take it lying down," said City Council Speaker Christine Quinn (D-Manhattan), who was involved in forming a city task force on financially distressed rental housing last year. "We will go building by building. This is a message to lenders that they will be held accountable," Quinn said.

• The judge hearing the case, Justice Stanley Green, will not likely rule on the motion for several weeks. There is legal precedent for the motion, said Legal Services lawyers citing a 1997 New York State appellate court ruling that a bank is responsible for maintaining a property during a foreclosure proceeding.

• About a year ago, banking behemoth Wells Fargo foreclosed on 10 properties in the Bronx owned by Los Angeles-based Milbank Real Estate. Since then, the buildings have been languishing in legal limbo, no longer owned by Milbank, but not yet definitively awarded by a judge to Wells Fargo.

For more, see Judge to rule on maintenance resposibility for foreclosing properties.

See also, The New York Times: Bid to Make Banks Fix Crumbling Bronx Properties (Housing advocates estimate that 4,700 apartments in dozens of buildings across New York City are in foreclosure, and that about 110,000 apartments are at risk).

California State Pension Plan To Cease Predatory Equity Real Estate Investments After Writing Off Million$ In Soured Deals

In Sacramento, California, Bloomberg News reports:

• The California Public Employees’ Retirement System, the largest U.S. public pension, said it will stop investing in real-estate projects that would eliminate rent-regulated apartments, such as New York City’s Stuyvesant Town-Peter Cooper Village. [...] The new policy states that Calpers cannot invest in projects that would eliminate rent-controlled apartments or convert them to market rates.

• Calpers wrote off a $500 million investment with Tishman Speyer Properties LP and BlackRock Inc. after the partnership’s plan to raise rents at Manhattan’s largest apartment complex failed to generate enough income to pay the $3 billion mortgage. The group paid $5.4 billion for Stuyvesant Town-Peter Cooper Village in 2006. The policy change is intended to head off a more restrictive proposal making its way through the California Legislature. That bill might prevent the fund from investing in affordable housing projects, said Brad Pacheco, a Calpers spokesman. Tenant-rights advocates sought the change after Calpers invested $100 million in a project in East Palo Alto, a low-income city in Silicon Valley. Tenants there complained to the Calpers board that if vacancy rates increase enough, the owners would be allowed to end rent-control rules.

Source: Calpers’ Board Approves Policy Shift to Protect Rent Control.

Cops Search For KC Woman Accused Of Forging Elderly Alzheimer's Victim's Signature To Pocket Reverse Mortgage Proceeds

In Kansas Ciy, Missouri, The Associated Press reports:

• A Kansas City woman is accused of using an 89-year-old neighbor with Alzheimer's disease to obtain a reverse-mortgage loan of more than $64,000. Jackson County prosecutors on Thursday announced charges against 55-year-old Marilyn James, including financial exploitation of an elder/disabled person and two counts of forgery.

• James is accused of forging David Cecil's signature to get a $9,000 loan from his life insurance policy. Officials say she also deeded a house that she had inherited over to Cecil, then forged his signature to take out a $64,445 reverse-mortgage loan on the property. Prosecutor Jim Kanatzar says James kept the money from the loan and now Cecil is liable for repayment. The house is in foreclosure and James is still at large.

Source: KC woman accused of using elderly neighbor to land fraudulent reverse-mortgage loan.

Houston Woman Says Lender Foreclosed On Her Twice By Mistake

In Houston, Texas, KVUE-TV reports:

• A Houston woman says Wells Fargo sold her home through foreclosure by mistake last summer, quickly corrected the error, then did the same thing again. Debra Cannon's story began with a divorce in 2007 when she fell behind on her payments and threats of foreclosure followed.

• "In August of 2009 they foreclosed on my home," she said. Cannon says she was in the process of working out a deal with her mortgage holder, Wells Fargo. But she says it was foreclosed on anyway. "They never really said, but it was an error due to Wells Fargo, and they did rescind -- they gave the money back to the man who bought the home," Cannon said.

• Cannon's relief was short lived. The foreclosure process began again -- but this time, she thought she had reached an agreement for loan modification and that ended with a knock at the door. "A gentleman came by and told me my home was foreclosed on and gave me a letter demanding I get out," she said.

• On April 6, Wells Fargo sold her home again through foreclosure. She said she was never notified and has a letter from the bank dated the same day of the foreclosure that states "a system error caused her to be deemed ineligible for the loan modification." "I didn't understand, after Wells Fargo told me everything was fine … I didn't understand it," she said.

For more, see Bank forecloses on woman's home twice.

Homeowner/Couple Say They Owe $20K+ Over $50 Ticket For Texas HOA's Rules Infraction

In Austin, Texas, The Dallas Morning News reports:

• Lawmakers say they have tried to write laws in recent years to prevent homeowners associations from gouging and abusing property owners, but more might need to be done. On Monday, outraged homeowners told a House panel they've been threatened with huge fines and possible foreclosure for what they described as minor infractions of association rules.

• A Houston couple may wind up having to pay more than $20,000 after a feud over a $50 ticket for having gray – instead of black – tape on exterior water lines, leaders of a property owners' rights group told the House Business and Industry Committee. "That was clearly, if it's true, the most egregious thing we heard today," said Rep. Gary Elkins, R-Houston, the panel's vice chairman.

For more, see Outraged homeowners detail HOA fines, foreclosure threats to Austin lawmakers.

Virginia Woman Loses Chance To "Buy Down" Felony Conviction By Failing To Return Entire Ripoff Proceeds To Elderly Victim

In Spotsylvania County, Virginia, The Free Lance Star reports:

• A woman who stole more than $188,000 from an elderly Spotsylvania County woman officially became a felon yesterday. Jerriett A. Bennett, 56, has repaid $143,000, Commonwealth's Attorney Bill Neely said, but so far has been unable to come up with the rest of the money.

• Bennett entered a conditional guilty plea last year in which her embezzlement conviction was deferred in order to give her a chance to repay the money. According to the agreement, if she repaid the whole amount, she would have been convicted of a misdemeanor and gotten a suspended 12-month jail sentence. If not, she'd get the felony conviction and a suspended five-year prison term. Neely said Bennett still has to repay the rest of the money or face the possibility of serving prison time.

• According to the evidence, Bennett stole the money from Maude Scott, a longtime county resident, between October 2007 and April 2008. [...] On Oct. 19, 2007, Scott signed a [] power of attorney giving Bennett control of her affairs. [...] Court records show that Bennett proceeded to cash large annuities belonging to Scott. The money was supposed to provide for Scott's care, and Scott told police she never gave permission for Bennett to spend it.(1)

For the story, see Spotsylvania woman declared a felon in embezzlement case (Woman formally convicted in $188,000 heist; gets suspended sentence).

(1) Reportedly, Bennett's attorney, Claire Caldwell, tried to have Scott declared unfit to testify because of her mental slippage. Neely acknowledged he would have had no case against Bennett had the effort succeeded. But Judge David Beck ruled that Scott could testify and said it would be up to the jury to determine her credibility.