F'closed Washington State Couple Blows State Homestead Exemption Eligibility By Abandoning Home Before Auction; Premature Move To Florida Costs $116K

A recent ruling from a 3-judge panel of a division of the Washington State Court of Appeals should serve as a reminder to homeowners facing foreclosure to be damned sure they don't have any equity in their home before deciding to abandon it.

In this case, the couple facing foreclosure left their Clarkston, Washington home and moved to Florida over six months before a nonjudicial foreclosure sale was carried out which generated surplus proceeds (aka "the overage") over and above the amount owed to the foreclosing mortgage holder of $116,377.85.

In a nutshell, the appeals court said that the couple abandoned their homestead rights by leaving the home over six months before the sale, and failed to file a notice of nonabandonment of their homestead rights.

Accordingly, they left themselves ineligible to pocket the surplus funds of $116,000+ in cold cash that was generated by the foreclosure sale by exempting them, pursuant to the state homestead exemption statute, from the slimy clutches of their other creditors.(1)

For the ruling, see In re the Trustee's Sale of the Real Property of Brown, ___ Wn. App. ___, ___ P.3d ___ (Wn. Ct. App, Div. 3, April 21, 2011) (for publication) (when link expires, GO HERE).

(1) The court addressed the homestead issue in this case in the following text (bold text is my emphasis):

• Homestead Abandonment. The Browns first argue that the trial court erred in concluding that they had abandoned their Clarkston home; instead, they were on an extended holiday in Florida. The evidence supports the trial court’s view of the matter.
  
  RCW 6.13.070 exempts homesteads from execution on judgments against the owner of the homestead in an amount up to $125,000. A homestead is “the real or personal property that the owner uses as a residence.” RCW 6.13.010. An owner is presumed to have abandoned a homestead when the owner vacates the property for six months or longer. RCW 6.13.050.
  
  However, an owner may execute and file a declaration of nonabandonment with the county recording officer in the county where the property is situated. Id. Abandonment of a legal right is generally a question of fact. See Moore v. Nw. Fabricators, Inc., 51 Wn.2d 26, 27, 314 P.2d 941 (1957).

***

• In the present case, there is no real dispute that the Browns had vacated the property for over six months. There is also no dispute that they did not file a notice of nonabandonment of their homestead rights.
  
  The trial court noted that a permanent shutoff of water to the property at the end of May indicated intent not to return. The Browns’ acquisition of Florida driver’s licenses and licensing vehicles in Texas was also persuasive evidence that the Browns had abandoned their homestead. They quit making payments on the Clarkston residence in favor of paying rent in Florida.
  
  The statement of Florida domicile, although not before the trial court, is further compelling evidence that the Browns had abandoned the Clarkston home. There was substantial evidence to support the trial court’s finding. The Browns also contend that they must affirmatively abandon the homestead. The argument is without merit in light of the plain language of RCW 6.13.050 that mere absence from the property for six months constitutes a presumption of abandonment.
  
  The trial court’s determination of abandonment is supported by substantial evidence in the record as well as the statutory presumption of abandonment. There was no error.

Lead AG In 50-State AG Probe Into Robosigning, Foreclosure Fraud Scored Big Bucks From Lawyers Representing Big Banks

TIME Magazine reports:

• Iowa’s Democratic Attorney General Tom Miller is known for taking on big business. Elected to eight four-year terms, he led a multi-state anti-trust case against Microsoft in 2001 and filed a suit against 79 drug companies in 2007, alleging they illegally profited by inflating prices for drugs purchased through Medicaid.
• Most recently, Miller took the lead on the investigation by all 50 state attorneys general into the “robo-signing” foreclosure scandal, where several big banks allegedly approved taking away people’s homes without adequately verifying the facts in court, as required by law in some states.
• Last fall, just after he made the announcement that he would look into the foreclosure mess, contributions to Miller’s campaign coffers for November’s election soared, thanks in large part to out-of-state lawyers who make a living representing big banks, a new report from the National Institute for Money in State Politics finds.
• “Nearly half of the money Miller raised in 2010,” NIMSP reports, “was donated after the October 13 announcement that he would be coordinating the 50-state attorneys general investigation.”
• Two Miller contributors have become directly involved in defending the banks in the probe. One, Meyer Koplow(1) of Wachtell Lipton in New York, gave Miller $5,000 and is representing Bank of America in direct negotiations with Miller, the attorney general tells TIME.
• Another, Elizabeth McCaul(2) of Promontory Financial Group, gave Miller $10,000 and is consulting Bank of America in the negotiations, Miller says. Bank of America was one of the first and most prominent institutions accused in the foreclosure investigation. It gave more than $80,000 to the Democratic Attorney Generals Association, which spent more than $200,000 on Miller’s campaign, Miller says.

***

• Neither McCaul nor Koplow would comment for this story.

For more, see Bank of America Lawyer, Consultant Gave Foreclosure Probe Chief $15,000.

For Miller's response, see Iowa AG slams report on campaign contributions.

(1) According to the new National Institute for Money in State Politics report, Koplow is most famous for negotiating Philip Morris’ $206 billion class action settlement with state attorneys general in 1998. See also, “Why is This Guy Smiling?,”American Lawyer, January/Feburary 2011, accessed April 24, 2011.

(2) Acording to the new report, McCaul is the former Superintendent of Banks for the State of New York Banking Department, the regulatory agency that oversees the banking industry in New York State, including Wall Street firms.

California Foreclosure Rescue Operator Pinched, Held In Lieu Of $500K Bail On Allegations Of Upfront Fee, Title-Deeding Ripoffs

From the Office of the San Bernardino County, California District Attorney:

• On Wednesday, April 20, 2011, Investigators from the San Bernardino County District Attorney’s Office-Real Estate Fraud Prosecution Unit arrested, Luis Miguel Macias, 40, of Rialto, California in the hallway of the San Bernardino County Superior Courthouse.
• Macias had been out on bail facing felony charges in another real estate related fraud case when investigators discovered that he was still operating his fraudulent business under the name of Home Recovery Trust in Ontario, California, victimizing others.
• The scheme involved victims already in foreclosure, who paid large upfront fees, signed agreements, powers of attorney, and a quitclaim deed, all which are illegal in the State of California.
• The fees collected were deposited in the banking account under the name of Home Recovery Trust. The particular victims in this case were evicted out of their home and no loan modification was ever done.
• Macias’ victims are typically unaware of the California Loan Modification Law, under California Civil Code, §2944.7. Macias has a bail in the amount of $500,000.00.

For the San Bernardino County DA press release, see Man Arrested for Real Estate Fraud.

Condo Residents Allege Fraudulent Mishandling Of Insurance Claim For Hurricane Damage Led Insurer To Stiff HOA; Owners Left With $100K+ Assessment

In Collier County, Florida, the Naples Daily News reports:

• After paying huge assessments for repairs after Hurricane Wilma, condo owners at the Monaco Beach Club have filed a class-action lawsuit, seeking damages for an insurance claim gone wrong.
• The lawsuit, filed in Collier Circuit Court, is against the condo association and former members of its board of directors, who were in office when the insurance claim for hurricane damages was made.
• Hurricane Wilma hit in 2005. Every owner at the time of the storm – whether they had damage or not to their condo – ended up with an assessment of more than $100,000 to pay for repairs to the 18-story building off Gulf Shore Boulevard in Naples.
• QBE Insurance,(1) the building’s insurer, paid nothing after it accused the condominium association of inflating its claim, which originally came in at more than $20 million. After a long legal battle in Collier Circuit Court, a jury sided with QBE.

***

• When fraud is found in a claim, an insurer isn’t required to pay a penny, even when there are real damages that exceed the deductible. Condo owners had to pick up the tab for millions in repairs.

For more, see Monaco Beach Club residents sue condo association over Hurricane Wilma damages.

For the lawsuit, see Bultinck, et al. v. Klein, et al.

(1) The story is silent whether this QBE Insurance, which successfully dodged having to cough up the cash for any portion of the condo association's damage claim, has any connection with the QBE Insurance Corporation recently named in a lawsuit accusing it of participating with Wells Fargo in an alleged force-placed insurance racket that screwed over financially strapped homeowners. See:

• South Florida Homeowners Seek Class Action Status In Lawsuit Tagging Loan Servicer Over Dubious, Force-Placed Insurance 'Gravy Train',
• Williams, et al. v. Wells Fargo Financial Inc., et al.

Homeowner Unable To Promptly Repair H2O-Damaged Home Says Loan Servicer Squeezed Him By Pocketing Insurance Proceeds, Dragging Feet On Fix-Up Pay-Outs

In Orlando, North Carolina, WSOC-TV Channel 9 reports:

• More homeowners are finding their lenders are holding money and calling the shots when it comes to insurance settlement checks for repairs. Action 9’s Don Griffin said it’s a growing trend prompted by the foreclosure crisis.
• Danielle Goodall and her family have been camping in their Orlando home for nearly six months. “I'm at a loss right now,” Goodall said. “Just throw my hands up, don't know what to do.” Last October, a huge plumbing leak soaked their wood floors, walls and kitchen cabinets. The leak was fixed and, within 10 days, the couple had a check from their insurance company that covered all repairs.
• The $18,000 check was made out to the Goodalls and their lender, US Bank Home Mortgage. Instead of endorsing the check, the lender kept the money, Goodall said. Then, Goodall said, the lender insisted on seeing every contract, approving every contractor and inspecting each phase.
• Goodall said she never expected the lender to be in charge of her renovation. She said there were constant delays and that she once waited a month for the lender's inspection before work could continue.
• Consumer groups say situations like this one are the new normal. Since the foreclose crisis, lenders that rarely exercised control over insurance settlements routinely get involved. "The bank certainly has an interest in making certain that their asset that collateralizes their loan is repaired the way it should be,” one advocate said.
• But despite never missing a mortgage payment and having a good credit rating, homeowners like Goodall will now have to wait for their lender's approval to get repairs done. “How am I supposed to fix the rest of the house without the money?” Goodall said.

Source: Homeowner Surprised By Lender’s Role In Renovation.

Group Seeks Ouster Of S. Florida Mayor After Accusations Surface That She Falsely Claimed Homestead Property Tax Exemption

In North Bay Village, Florida, The Miami Herald reports:

• A group headed by a former city commissioner is seeking the resignation of North Bay Village Mayor Corina Esquijarosa after she was ordered this week to pay more than $3,000 in back taxes and penalities for falsely claiming a homestead exemption on a Miami condo she rented out.
• Florida law states that a homeowner can take the $50,000 homestead exemption from property taxes only on a primary residence, not an income-producing property.

***

• Esquijarosa, who won the November election by six votes, has not commented publicly on the matter. She did not return telephone calls or respond to an email from The Miami Herald on Friday.
• The Miami-Dade Property Appraiser’s Office on Wednesday filed a lien notice, ordering her to pay $3,109.70 in back taxes by and penalties by May 20 or face a lien for falsely claiming a homestead exemption from 2009-2010 for a condo she rented out.
• Property records show that for the past two years, Esquijarosa, 38, claimed a homestead exemption for Unit #102 in the River Lofts Condominium at 1021 NW Third St. in Miami, a one-bedroom/one-bath condominium she has owned since 2008. Osmany Ramos said he has been living there since the end of 2010 with his wife and 1-year-old son and pays $675 a month in rent. He said another person had been renting the unit before he moved in.
• State law states that if a homeowner fails to notify the Property Appraiser’s Office of any changes in the status of a property, the owner can be back assessed for 10 years of exempted taxes, plus pay 15 percent interest per year and a penalty of 50 percent of the taxes exempted.
• Esquijarosa also did not report the unit as an asset on her financial disclosure forms that she filed last year to run for office, nor she did report any rental income. She works for the City of Miami and is paid $58,085.

For more, see Mayor’s resignation sought (Some residents are seeking the ouster of the mayor after the property appraiser levied a more than $3,000 fine on her).

1st Family Relegated To FEMA Trailer As Bank Of China Forecloses On White House; Commander-In-Chief Blames Payment Screw-Up Caused By Budget Cuts

In Washington, D.C., The Spoof reports:

• In the most embarrassing snafu of his administration, U. S. President Barack Obama announced at a press conference this afternoon, "The White House has been reposessed.""This is Orwellian," President Obama hastened to explain.
• "Due to congressional mandated budget cuts, the person in charge of actually sending the mortgage check to the bank was let go last summer. I am told the job was recently outsourced to a company in India."
• "After 120 days of non-payment, the bank's computer automatically filed foreclosure documents with the 1st Circuit Court of Washington, D.C., which in turn automatically processed the foreclosure application without human intervention, and consequently, title to the White House automatically reverted back to the lender, The Bank of China."
• "This is a simple clerical mistake," President Obama opined.
• "As we speak, government lawyers are negotiating a settlement. Let me assure you, Michelle and I, and the girls, fully expect to move back into the White House, in a couple of weeks."
• Representatives of The Bank of China could not be reached for comment.

Source: Bank of China Forecloses on White House (Historic Landmark Reposessed; Obama Family Moves into FEMA Trailer on East Lawn).

BofA At Center Of N'borhood Nuisance; Bees Swarm Into F'closed Home; Cops Use Crime Scene Tape To Ward Off Young Kids From Danger As Servicer Fiddles

In Winter Haven, Florida, The Ledger reports:

• Thousands of bees have settled into an abandoned house in a children-filled neighborhood in southwest Winter Haven. Parents on both sides of the home each have two children and said Thursday they are concerned their children could be swarmed by the bees.
• At some point, a gate post was attached to the cement block home at 209 Summerview Drive, off Thornhill Road. But now there's a bolt hole in the cement and bees fly in and out of the house all day.
• Bondi Washington lives next to the side of the home where the bees are thriving. She said about a month ago the family noticed the bees and the bee population has grown considerably since then. The hum of bees behind the wall is audible.
• A deputy visited the home Wednesday evening and put crime scene tape around the area where the hole is to keep people away.

***

• Polk property records show the house is owned by Faith Maulding, but neighbors say she moved away about three years ago. Maulding could not be reached to comment.
• In 2008, Countrywide Home Loans began foreclosure proceeding against Maulding. That company merged with Bank of America in 2008. For the past two years, records show that BAC Tax Services Corp. has paid the property taxes on the home. That company is a subsidiary of Bank of America. A man who visited the home Thursday to cut the grass said he was being paid by Bank of America.
• Christina Beyer Toth, spokeswoman for Bank of America in the southeastern states, said Thursday afternoon that she would find and peruse documents about the ownership of the property. She said she would contact company supervisors, but said that may not happen until this morning.

For the story, see Bees Invade Abandoned Winter Haven House (The bees become more active in the afternoons, neighbors of the house on Summerview Drive say. They are worried about their children being stung).

Ex-Keys Commissioner Pinched, Faces Year In Jail Over Alleged Use Of Dead Man's Social Security Number To Score Bogus Homestead Exemption Tax Claim

The Florida Keys Keynoter reports:

• Former Florida Keys Mosquito Control Board Commissioner Charles Langstaff has been charged with misdemeanor homestead-exemption fraud in Levy County. A commissioner representing the Upper Keys for 12 years, the 66-year-old Langstaff allegedly used the Social Security number of a dead Islamorada man to secure a homestead on his Morriston property near Gainesville.

***

• Levy County State Attorney William Cervone filed the charge April 7. The charging document says that on Jan. 29, 2001, and continuing through March 1, 2010, Langstaff "did knowingly and willfully give false information for the purpose of claiming homestead exemption."
• Florida homeowners are allowed one homestead exemption, which allows for a property tax break on their permanent residence. Langstaff already had a homestead exemption on his Key Largo home.
• The charge is a first-degree misdemeanor that carries penalties up to a year in county jail and a $5,000 fine.

For more, see Langstaff to answer homestead-exemption charge.

Fannie Increases Rental Building Holdings As Sour Loans On Residential Apartment Houses Ending In Foreclosure Begin To Pile Up

The Wall Street Journal reports:

• For more than three years, Fannie Mae has faced surging foreclosures on deteriorating home loans. Now, it also has to deal with an uptick in souring loans backing apartment buildings made as the market peaked four years ago.
• Last year, Fannie acquired 232 properties through foreclosure—more than double the amount in 2009—and loans backing another 481 properties were seriously delinquent. The rise is a reminder that despite the rebound in apartment-building prices in leading markets, owners and their lenders are still hurting in many parts of the country.

For more, see Apartment-Building Foreclosures Piling Up (requires subscription; if no subscription, TRY HERE, then click appropriate link for the story).

NYC Housing Advocates To Ramp Up Efforts Against Predatory Equity Investments Involving Residential Apartments Buildings

In New York City, the Brooklyn Daily Eagle reports:

• The Urban Homesteading Assistance Board (UHAB), an organization that has assisted in the preservation of more than 1,700 buildings and created homeownership opportunities for 30,000 households in the city since it was established in 1973, reports that it is ramping up its fight against predatory equity.
• Predatory equity is a process in which banks make unsupportable loans to speculative buyers, enabling them to purchase buildings with the explicit purpose of removing regulation, raising rents and displacing low- and moderate-income families.

For more, see Housing Preservation Organization Ramps Up Fight Against Predatory Equity.

Booting Connecticut Renters From Foreclosed Homes Subject To Various Legal Hurdles

Connecticut Watchdog reports:

• Persons who rent an apartment in a property that is going through foreclosure have legal protections that safeguard them from unfair treatment and upheaval, the Commissioner of the Department of Consumer Protection said []. Since some of these protections have been enhanced by recent legislation, it is a good time to remind property owners, property managing and servicing companies and real estate brokers of their legal obligations.
• “At least a half-dozen state and federal laws have protections for tenants of rental properties going through foreclosure. The owners of foreclosed properties — often banks — as well as property managing and servicing companies and real estate brokers must adhere to these protections so that tenants are not improperly uprooted from their homes,” Consumer Protection Commissioner William M. Rubenstein said.

Among these laws are:

• The Federal Protecting Tenants at Foreclosure Act of 2009;
• The Connecticut Identification of Landlord Law (Conn. Gen. Stat. §47a-6);
• The Connecticut Cash for Keys Law (Conn. Gen. Stat. §47a-20f, as amended by Section 3 of Public Act 10-181);
• The Connecticut Security Deposit Act — Conn. Gen. Stat. §47a-21(e);
• The Connecticut Just Cause Eviction Law (Conn. Gen. Stat. §47a-23c).

The new owner of a foreclosed property is also subject to the terms of any existing Section 8 lease and Housing Assistance Payments (“HAP”) contract between the prior owner and the public housing authority. If a tenant in a foreclosed property is a Section 8 tenant, then the new owner must assume the HAP Contract.

For more on each law, see Tenants In Foreclosed Housing Have Rights In Connecticut.

Title Insurance Issues For Foreclosing Lenders

Lexology reports:

• Lenders who make loans secured by real estate routinely obtain a loan title insurance policy insuring their lien position. Owners of real estate routinely obtain an owner’s title insurance policy insuring their title to the property.
• But what about when a lender becomes an owner by foreclosure or deed in lieu of foreclosure of their insured deed of trust? Can a lender rely on its loan title policy to insure its title to the property? If so, then should a lender rely on its loan policy, or should it obtain an owner’s policy?

For more, see Lenders taking title by foreclosure or deed in lieu: the advantages of obtaining an owner’s title insurance policy (requires subscription; if no subscription, GO HERE, then click appropriate link for the story).

Oregon AG Clips Minnesota Bill Collector For $90K In Settlement Of Consumer Allegations Of Harrassment

From the Office of the Oregon Attorney General:

• Attorney General John Kroger [] announced an agreement that requires a Minnesota debt collector that has prompted hundreds of consumer complaints to pay $90,000 and put a stop to its abusive practices.

***

• Roughly 200 consumer complaints have been filed with the Department of Justice against Allied Interstate in the past five years, accusing the company of systematically violating numerous prohibitions under the Oregon and federal Debt Collection Practices Acts.

Among other things, according to the Oregon AG press release, the complaints allege that Allied Interstate:

1. repeatedly called Oregon consumers even after being told they were not the intended debtor;
2. repeatedly calling and hanging up when someone answered the phone;
3. revealing alleged debts to third parties without permission to do so;
4. threatening legal action the company was not authorized to take; and
5. using obscene or profane language and harassing third parties with repeated phone calls.

Allied Interstate agreed not to engage in any of the acts complained about, and must also pay $90,000 dollars to the Oregon Department of Justice and an additional $50,000 if it fails to abide by any terms set forth in the agreement.

For the Oregon AG press release, see Minnesota Debt Collector Required To Pay $90,000.

For the Oregon AG agreement with Allied Interstate.

Citigroup Shareholder's Lawsuit Demands Directors To 'Ante Up' In Connection w/ Sloppy Mortgage & F'closure Practices; Robosigning, Putback Litigation

Reuters reports:

• The board of Citigroup Inc was sued by an individual shareholder for the damage done to the bank by years of shoddy mortgage and foreclosure practices, which recently led to a costly fix agreed with regulators.
• The lawsuit, filed on Wednesday in New York federal court, seeks to recover the spiraling costs stemming from numerous housing-related legal battles, from "robo-signing" lawsuits to "putback" litigation.

***

• The lawsuit by Michael Brautigam, who according to court papers owns 380 shares of Citigroup, notes that the directors did not contribute any money as part of a recent agreement with the regulators. The agreement required 14 financial institutions to overhaul mortgage operations and to compensate borrowers who were wrongly foreclosed upon. Costs are expected to run into the billions of dollars, and financial penalties are still to be decided.
• The lawsuit said that the current board, as well as four former directors including former U.S. Treasury Secretary Robert Rubin, breached their fiduciary duty to shareholders by failing to properly oversee the country's third-largest bank.

For the story, see Investor sues Citi board over shoddy mortgage ops (Shareholder wants board to pay for damage to company; Cites cost of poor oversight of mortgage activities; Seeks to tighten internal controls).

Massachusetts Attorney Targeted By State AG For Allegedly Ripping Off 1000+ Homeowners In Loan Mod Racket Hit With Protest Outside Law Office

In Lynn, Massachusetts, The Daily Item of Lynn reports:

• Claiming attorney David Zak did little to keep them away from foreclosure and charged them $4,500 for his services, Emilio Jimenez and his wife Dominica Mendez joined other foreclosure protesters in demonstrating outside Zak's Revere office on Wednesday.
• The protest is not the only pressure Zak's law firm and loan modification service is facing. A civil complaint filed by the state Attorney General's office in Suffolk Superior Court states Zak "misled over 1,000 homeowners" since February 2009 by promising them legal assistance and mortgage loan modification help.
• Zak, the complaint states, "sought to capitalize on the foreclosure and economic crisis and to prey upon Latino homeowners who are facing the imminent loss of their homes." [...] The AG's office is seeking to block Zak and Loan Modification Group, Inc. from doing foreclosure-related business.

For more, see Lawyer on defense as AG, foreclosure group take aim.

Court Documents In 'Mass Joinder' Contingency Fee Lawsuit Suggest One Attorney May Be Pocketing Upfront Fees From Clients Without Telling Co-Counsels

Court documents filed in a Los Angeles, California Superior Court in connection with a 'contingency fee' (ie. no upfront fees) mass joinder lawsuit on behalf of homeowners who were allegedly screwed-over by Bank of America and others indicate that an all-out brawl has apparently broken out involving the attorneys from separate law firms who initially came together, as co-counsel, to represent the multitude of homeowners bringing the case.

More specifically, the subject documents represent a motion filed by one group of the plaintiffs' attorneys essentially requesting that the court boot two specific attorneys from any further involvement in the case, at least with respect to certain specified plaintiffs.

Among the concerns of the attorneys filing the request with the court is that they have received reports from some of the homeowner/clients that at least one of the other two attorneys is pocketing upfront fees from them for joining this 'mass joinder' lawsuit without the knowledge or consent of the motion-filing attorneys which, according to them, is a case that is a contingency fee case requiring no upfront fees from the homeowners.

For the court documents, see Ronald v. Bank of America, et al. - Motion to Remove Mitchell J. Stein.

See Brookstone Law, SML and Apex Join to Protect Homeowners for a recent press release issued by the motion-filing attorneys in this case which, in part, addresses the racket some other attorneys are perpetratrting in connection with collectiing up front fees from bankster-defrauded homeowners in exchange for allowing them to sign up for 'mass joinder' lawsuits.

Thanks to Deontos for the heads-up on the court documents.

BofA F'closes On Homeowner After Promising To Hold Off During Loan Modification Review; Home Auctioned Out From Under Him While On Phone w/ Servicer

In Arvada, Colorado, KMGH-TV Channel 7 reports:

• An Arvada man’s foreclosed home was auctioned off, while he was on the phone with the bank. The sale comes after reassurances that his case was under review. "It's not just property to me. It represents my life's work,” said Ray Vigil, who has owned his home for nearly 14 years.

***

• Vigil said he went through tough times but said Bank of America agreed to possibly modify his mortgage. In March a spokesperson sent 7NEWS confirmation that the sale was on hold. "As long as the modification was under review, that foreclosure sale will not go through," said Vigil.
• On Wednesday afternoon, the home was sold at an auction as Vigil pleaded for help from the bank. He said he was never told that anything had changed. "As recently as this morning, they still requested documentation,” said Vigil.

For more, see Foreclosed Home Sold While Owner On Phone With Bank (Man Says Bank Told Him Sale Was On Hold).

Suit: Couple Threatened With F'closure Despite Having Made All Payments; BofA Blamed For Failing To Acknowledge Servicer Screw-Up During Loan Takeover

In Wagoner, Oklahoma, KOTV Channel 6 reports:

• Fallout from a fraud in the mortgage business creates a headache for a couple in Wagoner. Their mortgage lender went bankrupt because of fraud - in fact a top executive was convicted just Tuesday. But the chaos the fraud created has led to a lawsuit here in Green Country.
• It might seem like the mortgage mess is far away with huge companies - but it's way too close to home for a lady in Wagoner who just wants credit for making every payment, on time, but instead - she's being threatened with foreclosure.
• Janna Metzger is a paramedic in Wagoner, but she spends a lot of time playing banker - because of a mortgage company that claims she owes them money she says she's paid. "One payment and I get letters of possible foreclosure," homeowner Janna Metzger said.
• Metzger says the problem started with one house payment made just as their original lender, Taylor Bean & Whitaker, went bankrupt because of fraud, and her loan was sold. "They didn't send my last payment, Taylor Bean and Whitaker didn't, to Bank of America, when they took over," Metzger said.
• In the 22 months since, Metzger has compiled a stack of phone records, canceled checks and letters, she says amount to harassment over money she doesn't owe. She's hired an attorney to try to get it stopped. "I mean this has gone on 20 months. It's not like it happened and the next day my clients filed a lawsuit," said Attorney Luke Wallace. "They tried to deal with this on their own, for 20 months of collection calls and letters saying we're foreclosing on your home, or that's in the process."
• Wallace filed a lawsuit demanding at least $75,000 and an end to the collection letters. "If you don't stand up, and acknowledge it, and fight it, they'll take your home; that's the problem here," the attorney said. And it's left Metzger frustrated and angry.
• "I have no idea what I owe on my house mortgage," said Wagoner resident Janna Metzger. Bank of America acknowledges the payments she's made, but in their letters claim she's a payment behind - because of the one missing payment from almost two years ago.

Source: Mortgage Fraud Creates Headache For Wagoner Couple.

For the lawsuit, see Metzger v. BAC Home Loan Servicing, L.P.

State Appeals Court Orders Lee County Officials To Respond To Foreclosure Rocket Docket 'Indictment'

From the a press release issued by the American Civil Liberties Union:

• Florida’s Second District Court of Appeal today ordered the state’s 20th Judicial Circuit to respond within 20 days to claims in an American Civil Liberties Union lawsuit that a special foreclosure court system systematically denies homeowners a fair chance at defending their homes against foreclosure.
• The ACLU filed a lawsuit April 7 charging that the special “mass foreclosure docket” established in Lee County, FL in December 2008 operates under rules that differ substantially from those that govern the rest of the county’s civil cases. That docket was designed to speed through as many foreclosure cases as possible without providing homeowners facing foreclosure a meaningful opportunity to develop their cases or present defenses, according to the petition.
• The following can be attributed to Rachel Goodman, an attorney with the ACLU Racial Justice Program:

  “By ordering the circuit court to account for its practice of prioritizing speed over accuracy, which robs homeowners of their due process rights, the appellate court clearly recognizes that there are serious issues at play here. It is incumbent upon the courts to ensure that the rights of homeowners are protected and that they get a fair opportunity to protect their homes.”

Source: Florida Appellate Court Orders Lee County Officials To Respond To ACLU Lawsuit (Lawsuit Charges That “Mass Foreclosure Docket” Ignores Procedural Safeguards In Rush To Clear Cases).

See this Affidavit of attorney Todd Allen for some of the specifics of the 'indictment' describing how the rubber-stamping, 'rocket docket' judges ram through foreclosures in Florida's 20th Judicial Circuit. Essentially, Todd Allen blows the whistle on the rocket docket by detailing how he tried everything to work within the system before supporting a suit to end it.

MERS Takes Hit From California Bankruptcy Court On Standing To Foreclose On Homeowner

Housing Wire reports:

• A California bankruptcy court says Mortgage Electronic Registration Systems cannot help a trustee establish legal standing to foreclose on a securitized mortgage unless the trustee already possesses an actual assignment of interest in the loan.
• The case — Salazar v. U.S. Bank — comes out of California's Southern District U.S. Bankruptcy Court and is attracting attention from foreclosure attorneys as it seems to contradict another ruling, Gomes v. Countrywide.(1)

***

• The bankruptcy court's decision is gaining attention from foreclosure attorneys in the state because it seems on the surface to contradict the Gomes v. Countrywide decision. In that case, the Court of Appeals of the 4th Appellate District said the language in a deed of trust gives MERS the authority to initiate a foreclosure.

***

• [The Debtor's attorney, Francisco] Aldana[,] says the Salazar case is different from Gomes in that "in Gomes, the borrower, actually acknowledged that MERS can foreclose."
• "In the Salazar case, MERS was the beneficiary at the time of inception," but by the time, the deed of trust was foreclosed, "MERS was no longer the beneficiary," Aldana said.
• Comparatively, "in the Gomes case, MERS was the beneficiary at the same time," and the appellate court "did not want to interfere in a nonjudicial foreclosure."

For the story, see California bankruptcy court rules against MERS.

For the bankruptcy court ruling, see In re Salazar, ___ B.R. ___ (Bankr. S.D. Cal. April 11, 2011) (for publication).

(1) See California Appeals Court: Homeowner Can't File Lawsuit To Stop Foreclosure Process Based On Claim That Noteholder Did Not Authorize It.

BBB Says Steer Clear Of Nat'l 'Mass Joinder' Lawsuit Invites; Some Claim Offers Merely A Bogus End-Run Around Loan Mod Upfront Fee Prohibitions

From a press release from the Better Business Bureau:

• The Better Business Bureau (BBB) warns homeowners to steer clear of mailings asking them to join national “mass joinder” lawsuits to force their mortgage companies to cut their loan payments. Michelle Corey, BBB president and CEO, says the mailings are a new twist on schemes to obtain up-front payments of $5,000 or more from homeowners struggling to pay their mortgages.

***

• Several property owners in Boone County, Mo., recently got letters saying that their loans “may be eligible for national litigation aimed at fraudulent lender actions.” The letters listed no company name or return address. A nearly identical notice sent to a homeowner in Long Beach, Calif., came from the Litigation Settlement Department at 3829 Veterans Memorial Parkway, St. Peters, Mo.
• Missouri secretary of state records list the St. Peters address as home to Diversified Financial Protection Agency and Capital Debt Management. The records list John Jacob Ehlinger as president of Capital Debt Management. John J. Ehlinger is registered agent and the only incorporator of Diversified Financial Protection Agency. Capital Debt Management filed for incorporation in October 2009; Diversified Financial Protection Agency filed on Feb. 16, 2011.
• The BBB has issued two warnings on Ehlinger and Capital Debt Management since last summer. The company has an “F” grade with the BBB, the lowest grade possible.

***

• Officials of Diversified Financial Protection Agency, Capital Debt Management, or both firms, apparently are now partnering with Mass Litigation Alliance of Hawthorne, Calif. The same toll-free phone number is on the Boone County and California solicitations and is one of several listed on a website for Mass Litigation Alliance.
• Mass Litigation Alliance filed corporate papers with the California secretary of state on Feb. 14, listing Philip A. Kramer of Calabasas, Calif., as the company’s agent.Mass Litigation Alliance’s website describes Kramer as senior partner of Kramer & Kaslow, a Calabasas law firm with an “F” grade from the Los Angeles BBB.
• Consumers have filed more than 30 complaints about the firm. Most allege the firm didn’t fulfill contracts for loan modification or foreclosure related services, that the firm misrepresented its ability to provide service, or that the complainant was unable to obtain refunds of advance fees.
• The company has disputed the allegations and said contracts are based on hourly rates or flat fees, not on performance.

For the press release, see BBB Warns Homeowners: 'Mass Joinder' Lawsuit Mailings May Be Latest Advance Fee Mortgage Modification Scheme.

See also, State Bar Investigator: "Now We're Seeing The Loan Mod People Morph Into The Sue-Your-Bank People" As Scammers Circumvent Upfont Fee Prohibitions.

Key To Fending Off Foreclosures - Get The Right Judge

In a recent column in Fortune Magazine, columnist Abigail Field writes:

• Since last fall, the judicial system has been confronting foreclosure fraud across the country. As the scale of the problem became publicized, it's been increasingly hard for judges not to notice that the banks have consistently filed robo-signed documents and other problematic files in many of their foreclosure cases.
• Not all judges are confronting the issues in the same way. Many are adopting procedures to stop any fraudulent behavior by the banks and are investigating questionable documents submitted in their cases. Other judges are turning a blind eye, at best.
• Several state Supreme Courts have adopted procedures to stop fraud statewide, including New York, New Jersey, Florida and Maryland. For example, last October New York's chief justice started requiring the banks' attorneys to personally swear they had examined the banks' claims and verified that they were true. As a result, foreclosure filings plunged in New York, and many have been dismissed for failure to file the required certification.
• In other states, groups of judges or even individual judges have adopted procedures to end the fraud. For example, last November, three Franklin County, Ohio judges, (John Bender, Kimberly Cocroft, and Guy Reece) adopted a New York-style procedure, and ordered attorneys representing foreclosing banks to verify the accuracy and authenticity of the their documents.
• In bankruptcies, the problems surface when the bank asks the court for permission to foreclose. Some bankruptcy judges have been so frustrated with the problematic documents they have done deep investigations into the processes behind their creation.
• The most recent example of this kind is a decision on April 6 by Judge Elizabeth Magner in Louisiana. Judge Magner investigated how the documents submitted by Option One were in fact created by a company called Lender Processing Services (LPS), and how LPS's practices were so bad, the documents constituted a "fraud perpetrated on the Court."

***

• People in jurisdictions protected by these judicial efforts to stop foreclosure fraud should be grateful, because the consequences of foreclosure fraud can reach far past the individual homeowner. Most problematically, it leaves land records in jeopardy.
• But not all homeowners are so fortunate. One of the most common types of fraud is when documents purport to show that the bank has the right to foreclose. If the bank is allowed to foreclose, but didn't really have the right to do it, the property's title becomes clouded. Clouded titles damage the real estate market in profound ways. The only way to limit the damage that already has occurred is to stop further fraud in its tracks.
• Such is the case of a kangaroo court set up in Lee County, Florida. A recent ACLU lawsuit asks a Florida Appeals Court to declare the special mass foreclosure court in Lee County unconstitutional. As the suit details, the Lee County system emphasizes speed to such an extent that it prevents homeowners from having a chance to save their homes, regardless of bank fraud or any other legitimate defense.
• Things are so bad, according to homeowner attorney Todd Allen's affidavit, which partially supports the ACLU lawsuit, three Lee County judges have apparently decided that being in default on your mortgage payments is indefensible, no matter what. Those judges routinely deny homeowners' requests to investigate the banks' evidence after asking if the homeowner is in default, and being told yes. It's the ultimate in judicial activism: the outcome is pre-determined by the judges' bias.
• Lee County isn't blind to the problems its process creates. A few months ago, the clerk of the Lee County Courts admitted that clouded titles were a real problem but said it was one for the legislature to fix.
• Lee County, Florida isn't the only place where judges aren't standing up to the banks' fraud. I've talked to various attorneys who say some, even many, of the judges they practice before don't want to hear about fraudulent documents.

For the story, see Fighting a foreclosure suit? Hope for the right judge (Many judges presiding over the countless foreclosure cases around the country are taking steps to stop fraud, but in a few key courts, the bench takes the opposite track).

More On Federal "Regulator" That Cut Banksters A Pass In Recent Foreclosure Fraud Settlement

From the opinion pages of The New York Times, author and op-ed columnist Joe Nocera writes:

• Judging by last week’s performance, it sure looks as though the country’s top bank regulator is back to its old tricks. Though, to be honest, calling the Office of the Comptroller of the Currency a “regulator” is almost laughable. The Environmental Protection Agency is a regulator. The O.C.C. is a coddler, a protector, an outright enabler of the institutions it oversees.
• Back during the subprime bubble, for instance, it was so eager to please its “clients” — yes, that’s how O.C.C. executives used to describe the banks — that it steamrolled anyone who tried to stop lending abuses.
• States and cities around the country would pass laws requiring consumer-friendly measures such as mandatory counseling for subprime borrowers, or the listing of the fees the banks were going to charge for the loan. The O.C.C. would then use its power to either block or roll back the legislation.
• It relied on the doctrine of pre-emption, which holds, in essence, that federal rules pre-empt state laws. More than 20 times, states and municipalities passed laws aimed at making subprime loans less predatory; every time, the O.C.C. ruled that national banks were exempt. Which, of course, rendered the new laws moot.
• You’d think the financial crisis would have knocked some sense into the agency, exposing the awful consequences of its regulatory negligence. But you would be wrong. Like the banks themselves, the O.C.C. seems to have forgotten that the financial crisis ever took place.

For more, see Letting the Banks Off the Hook.

Michigan Lawmakers Propose Move To Slash Post-Foreclosure Redemption Period In Half

The Grand Rapids Press reports:

• When Saxon Mortgage foreclosed on Thomas Price’s home of nearly 30 years, the disabled Vietnam veteran was able to raise $6,000 to regain his [...] house during a six month redemption period. It took the 61-year-old man — who suffers from an incurable respiratory illness — five months to raise that money. That would be two months too late under a new bill in the state House.
• The state-mandated redemption period would be permanently shortened to three months from six under the bill.

For more, see Does proposed Michigan foreclosure law kick owners out too quickly?

Court Officials' Internal E-Mails Support Allegations Of An Out-Of-Control Foreclosure Rocket Docket

North Country Gazette reports:

• Documents made public by the American Civil Liberties Union reveal a startling rush by judges in Lee County, FL to force as many foreclosure cases as possible through a specially created court system.
• The documents, obtained by the ACLU through a public records request filed in October with judicial officials across Florida, provided part of the basis for a petition filed last week by the ACLU charging that the special “mass foreclosure docket” in Lee County systematically denies homeowners a fair opportunity to defend their homes against foreclosure.

***

• Among the documents made public are internal emails sent among Lee County foreclosure court officials. One of the emails outlined the court’s specific numerical goal for clearing foreclosure cases, which the court had not previously made public. According to a court administrator, “our goal for this project is to “dispose of” the number of cases filed each month “plus 1,040 additional cases.”
• In another email from September 2010, one judge says she “uniformly” denies motions to continue foreclosure cases in instances where homeowners argue there is additional discovery that needs to be undertaken or they are pursuing a settlement agreement.
• And in an August 2010 email, one judge reports to another his concern that particular plaintiffs’ attorneys are “getting burned out” by the pace of the foreclosure court’s docket and asking for ways in which judges might “give them some relief or help them in some way.”

For more, see Florida Judges Rushing Foreclosures.

Fast-Thinking Cop Stops Illegal Foreclosure Boot Of Unwitting Renter, Family; Eviction Notice To Ex-Owner Failed To Name Tenants

In Providence, Rhode Island, The Providence Journal reports:

• You can’t do it this way. You can’t just show up at a family’s door and tell them to get out with no notice. It’s thuggery. But it almost happened. If not for some fast moving lawyers who know the territory and a compassionate cop, Angela Martinez and her three children and granddaughter would have been out on Lenox Avenue in Providence Tuesday morning.

***

• [Providence Police Capt. David] Lapatin arrived at 31 Lenox Ave. Tuesday morning to find a constable, a moving crew and police officers overseeing an eviction that he quickly figured out should not be happening.
• “Basically, it was an eviction notice sent to the owner of the house but not in the name of the tenant,” said Lapatin. “It’s pretty clear. You have to get them out separately.”
• He told the movers, who looked as if they really didn’t want to be there, to stop what they were doing. He told the constable and the police the eviction was off.
• Lapatin is also a lawyer and has done some work in landlord-tenant disputes. He knows the territory. And he said that since the landlord does not live in the house, an eviction notice to him is not an eviction notice to his tenants.

For more, see A cruel attempt to put a family on the street.

Unfavorable Engineering Report Citing Structural, Foundation Problems Leads To Midnight 'Eviction' For 300+ Condo Residents

In Fort McMurray, Alberta, The Edmonton Journal reports:

• Seven Fort McMurray condominium complexes have been condemned and residents will not be allowed to return to pick up belongings. A letter to more than 300 residents [] said it was highly unlikely that anyone would be allowed to ever enter the buildings.
• The decision came after an on-site remediation team of engineers and construction specialists found evidence of further structural deterioration, additional risks and fire code contraventions. In addition, the roofs have started to fail, the letter said.
• “This is an extremely dangerous environment,” Al Penner, spokesman for the Condominium Corp., said in the letter. “Do not consider attempting to access your unit to remove your treasured belongings.”
• The 168-unit complex was evacuated in the late evening of March 11 after a structural engineering report issued earlier that day detailed the foundation problems. Penner [said] the structural problems will be exacerbated by the spring thaw. Plans for short-term stabilization were abandoned, he said.
• It’s not yet clear if the company will tear down the buildings or if the city will order them demolished. The apartments on Penhorwood Street have had ongoing problems since they were built in 2004.
• Residents were given brief access on March 16 to gather belongings from the building after signing liability waivers.

Source: Seven Fort McMurray condo complexes condemmed (Residents will not be able to pick up belongings).

See also, Why a young mom was evicted from her Fort McMurray condo at midnight (Structural concerns forced 300 people from their Fort Mac condos in March. How did this happen, who is at fault and what are the lessons for Alberta?).

More On "Bottom Of the Barrel" Mortgage Loan Servicing Practices

The New York Times reports:

• “ONE too many times, this court has been witness to the shoddy practices and sloppy accountings of the mortgage service industry. With each revelation, one hopes that the bottom of the barrel has been reached and that the industry will self correct. Sadly, this does not appear to be reality.”
• This trenchant take comes courtesy of Elizabeth W. Magner, a bankruptcy court judge in the Eastern District of Louisiana. In an April 7 opinion involving a couple whose bank tried to foreclose on them even though they were current on their mortgage, you can sense Ms. Magner’s frustration with financial institutions that administer home loan payments and records.
• Ms. Magner is just one of many judges overseeing cases involving troubled borrowers, of course. But because her judicial duties seem to have made her an expert on mortgage servicing, Ms. Magner’s views could not be more timely and important. This is especially true, given that state attorneys general seem intent on striking a settlement with servicers before they have conducted a comprehensive and thorough examination of industry practices.
• By presiding over a variety of cases involving borrower abuse, Ms. Magner has probably done more investigating than some of the attorneys general who are so eager to cut a deal with the banks.

***

• THE use of a robo-signer in the Wilson matter seemed to be the last straw for Ms. Magner. In sanctioning Lender Processing, she wrote: “The fraud perpetrated on the court, debtors and trustee would be shocking if this court had less experience concerning the conduct of mortgage services.”
• She added: “Serious problems persist in mortgage loan administration. But for the dogged determination of the United States Trustee’s office and debtors’ counsel, these issues would not come to light and countless debtors would suffer.”
• For those who argue that servicing errors encountered by troubled borrowers are rare mistakes, Ms. Magner’s rulings should be required reading. “The deference afforded the lending community has resulted in an abuse of trust,”(1) she wrote in the Wilson ruling. Truer words were never spoken.

For more, see Homework Regulators Aren’t Doing.

(1) Judge Magner's further comments in her ruling on this abuse of trust also bear repeating (see In re Wilson, Case 07-11862 (Bankr. E.D. La. April 6, 2011) (p. 21-22, 25):

• The abuse begins with a title. In this case, Ms. Goebel was cloaked with the position of "Assistant Secretary,” in a purposeful attempt to convey an experience level and importance beyond her actual abilities. Ms. Goebel is an earnest young woman, but with no training or experience in banking or lending. By her own account, she has rocketed through the LPS hierarchy receiving promotions at a pace of one (1) promotion per six (6) to eight (8) month period. Her ability to slavishly adhere to LPS’ procedures has not only been rewarded, but has assured the development of her tunnel vision. Ms. Goebel does not understand the importance of her duties, and LPS failed to provide her with the tools to question the information to which she attests.

***

• In this case the lender and LPS cloaked Ms. Goebel with a title that implied knowledge and gravity. LPS could have identified Ms. Goebel as a document execution clerk but it didn’t. The reason is evident, LPS wanted to perpetrate the illusion that she was both Option One’s employee and a person with personal and detailed knowledge of the loan. Neither was the case.

State Bar Investigator: "Now We're Seeing The Loan Mod People Morph Into The Sue-Your-Bank People" As Scammers Circumvent Upfont Fee Prohibitions

In Sacramento, California, The Sacramento Bee reports:

• Sacramentans struggling to keep their homes increasingly are suing their lenders for fraud, even though judges rarely rule in their favor. Desperation has led some of these homeowners to pay thousands of dollars to people who are not lawyers to help prepare their cases. Others hire attorneys in lawsuit mills that aggressively solicit for clients. "It's the new scam," said Tom Layton, an investigator for the State Bar of California.
• The number of lawsuits filed by individuals against banks and mortgage companies in the Sacramento region has more than doubled, rising to about 250 in the last six months, up from about 115 from the same period two years ago, according to a Bee review of court records in Sacramento and Placer counties.
• Many of the lawsuits are filed by frustrated owners tired of dealing with banks that repeatedly transfer calls or reject loan modifications after a successful trial. But homeowners don't always know what they're getting into when they go to court. Some unscrupulous operators, Layton said, are charging large fees for little work.
• The Legislature barred lawyers and non-lawyers alike from charging upfront fees to file a loan modification; however, there is no ban on collecting such fees for preparing a lawsuit.
• "Now we're seeing the loan mod people morph into the sue-your-bank people," Layton said.

***

• Jim Towery, the State Bar's chief trial counsel, said people without a law license should not be preparing lawsuits. "It is illegal," he said. "It falls under the category of the unlicensed practice of law."(1)

For more, see Sacramentans sue lenders to save homes – but few succeed.

(1) See also: Loan Modification and Mass Joinder Lawsuit Scams:

• These charlatans align themselves with unethical and inexperienced attorneys who pay them generous referral fees for signing up clients attorneys. They get these clients to pay thousands of dollars upfront to join mass joinder plaintiff lawsuits without ever meeting an attorney.
• They get these people to pay by guarantying that these lawsuits will be successful. They tell these clients that no mortgage payments are to be made during the several years that it will take for the lawsuit to wind through the court system. They promise balance reductions to below market value. They give their word that the attorneys have already won similar cases and have saved hundreds of family homes through these lawsuits. They are quite convincing as they explain how lenders are afraid of the negative publicity that these mass joinder plaintiff lawsuits generate.

Sale Leaseback Foreclosure Rescue Peddler Gets 10 Years After Jury Finds Guilt On Charges Of Obtaining Goods By False Pretense

In Horry County, South Carolina, The Horry Independent reports:

• A Lexington, N.C., man was sentenced to 10 years in jail and fined $500 for each of two counts of obtaining goods by false pretense [] after an Horry County jury found that he had been involved in questionable mortgage transactions.
• Robert Steve Jolly, 61, [...] will serve the two sentences concurrently. An Horry County jury was unable to agree on a third charge of practicing law without a license and was declared hung on that issue.
• Several Horry County homeowners testified in a two-day trial that they turned to Jolly for help with their mortgages, but ended up with nothing but trouble. Jolly’s attorney Wesley Locklair told the jury that what Jolly did was not criminal and his intentions were not to cheat or defraud distressed homeowners. “He was trying to assist in saving their home from banks with bad lending practices,” Locklair said.
• The case went to the jury late Wednesday after Jolly took the stand in his own defense. At one point Jolly was named as a defendant in 45 mortgage foreclosure cases.

Source: Jolly gets 10 years.

See also The Sun News: Three more caught in Myrtle Beach area mortgage fraud:

• Jolly had been operating a foreclosure rescue scam since March 2007, according to a lawsuit filed against him by the state attorney general's office. At least 45 people were taken in by the scam, court records show.
• Jolly told home owners that he could suspend foreclosure proceedings if they would sign their home over to him and then start making monthly payments to him, according to court documents. Jolly, however had no authority to stop the foreclosures. Instead, he kept the monthly payments for himself as the foreclosures proceeded.

***

• "Mr. Jolly instructed that if I would sign my properties to him he would take over ownership, avoid foreclosure, rent the properties back to me at a rate I could afford based on my income and offered to sell the properties back to me in the future if and when I could afford them," [one homeowner] said.