Saturday, May 14, 2011

Foreclosure 'Happy Hour' A Forum For Exchange Of War Stories For Homeowners Screwed Over By Illegal Bankster Take-Back Attempts

In West Palm Beach, Florida, TC Palm reports:
  • Several Treasure Coast residents scribbled the name “Linda Green” in black permanent marker on their temporary name tags at a recent happy hour gathering in West Palm Beach.
  • That name and others have become synonymous with the nationwide foreclosure robo-signing crisis that’s rocked the foundation of several major banks and mortgage lending institutions. Several foreclosure law firms and lenders have been accused of improperly preparing and filing foreclosure documents by allegedly bulk-signing names of bank employees on court documents, questioning the validity of past foreclosures and cases that are still in active litigation.
  • It’s one of the bonds shared by the half dozen Treasure Coast residents and 30 others from South Florida who meet monthly at what they call the Foreclosure Hamlet Happy Hour. Almost all attendees claim their foreclosure documents were robo-signed.
  • The banks created this fabricated propaganda that framed us like deadbeats. Irresponsible Americans that scammed the banks out of trillions of dollars by signing on loans we knew we couldn’t pay, ” said West Palm Beach activist and founder Lisa Epstein.
  • She and Michael Redman, founder of started the group that plans to expand north and hopes to organize a Treasure Coast meeting soon.

For more, see Treasure Coast residents exchange sad stories at foreclosure happy hour.

Texas Man Bagged For Allegedly Pocketing Cash, Passing Himself Off As Lawyer Providing Foreclosure Rescue Services

In Williamson County, Texas, KXAN-TV Channel 36 reports:
  • A Williamson County man is arrested after allegedly fraudulently posing as an attorney. The Williamson County Sheriffs office was contacted after Ray Echavez filed several documents with the Williamson County Clerk’s Office. Clerks in the office did not believe that Echavez was a lawyer.
  • Deputies contacted the man named in the document. According to the affidavit, the victim said that he met Echavez through a realtor and agreed to pay $2,500 for help in stopping the foreclosure of his Cedar Park home. The victim said he received legal advice and even appeared in court with Echavez, where a judge refused to grant an application for a restraining order against the foreclosure company.
  • The victim also said there was paperwork where his signature was forged. Investigators also believe that Echavez at one point called deputies attempting to impersonate the victim. Echavez is charged with falsely holding oneself out as a lawyer, a third degree felony.

Source: Man posing as attorney arrested (Man allegedly paid $2500 for legal advice).

Victim Of Home Refinance Gone Haywire Who Never Missed Any Mortgage Payments Gets 6-Month Hold On F'closure Eviction As Parties Work Toward Resolution

In Milwaukee, Wisconsin, the Milwaukee Journal Sentinel reports:
  • A six-month reprieve has been issued to Keon Williams, the north side man whose home was sold at a sheriff's sale in January even though he was current on the only mortgage he knew he had.


  • The delay provides time to try to resolve the mortgage issues swirling around Williams either through negotiations or court action.
  • Williams, whose dilemma was the subject of a Journal Sentinel report last month, has been teetering on the edge of eviction for months because he is caught in a vise created by the national mortgage meltdown and some fast dealings by the now-defunct Central States Mortgage Co. and an affiliated company.
  • In 2008, Williams, a single father of three, refinanced his home through Central States, which had been the state's largest mortgage broker. However, unknown to Williams, the proceeds from that 2008 refinancing were not used to pay off his previous lender, Amcore Bank. Amcore was bought by Harris last year.
  • Instead, Interim Funding LLC - an affiliate of Central States - used the money to pay off a different lender, said Stephen Kravit, an attorney for Richard Jungen, an owner of Interim and the founder and former chief executive of Central States. The FBI has been investigating Central States and some of its former executives since 2009.

For more, see Eviction postponed for six months (Caught up in mortgage mess, Milwaukee man gets a reprieve).

Lawsuit: Current Philly Sheriff Not Legal, Void All Foreclosures Conducted By Her

In Philadelphia, Pennsylvania, the Philadelphia Daily News reports:
  • A candidate in next week's primary election for sheriff filed a lawsuit in U.S. District Court last week seeking to void all mortgage-foreclosure sales conducted under acting Sheriff Barbara Deeley.
  • The suit, which names as its plaintiffs Democratic candidate Jacque Whaumbush and former West Philadelphia homeowner Glenda Sanders, seeks an order from the court declaring that Deeley "is not, and never was, the Sheriff or 'Acting Sheriff' " of Philadelphia and overturning the sheriff sale held April 5.
  • The suit claims that the sale shouldn't be recognized because Deeley was never confirmed by the state Senate after she took over the office on an interim basis to fill in for Sheriff John Green, who retired in December.

For more, see Suit seeks to void sheriff sale; says current sheriff not legal.

Ohio AG Tags Foreclosure Rescue Operator With Civil Suit Alleging Upfront Fee Ripoffs

In Cleveland, Ohio, WEWS-TV Channel 5 reports:
  • An exclusive 5 On Your Side investigation has uncovered rising complaints against an Ohio company offering mortgage relief for struggling homeowners. A review of complaints contained filed with the Ohio Attorney General's Office found at least 71 homeowners alleging they paid thousands for loan modifications that never happened.
  • Consumers identified "The Modification Group" or "TMG" as offering to lower their monthly payments through a process called home loan modification.
  • Bob Miller and his wife said they gave the company $4,000 to obtain a home loan modification that never happened. The Millers said they signed a contract that they said offered to refund 80 percent of their up-front payment if the loan was not approved. But after waiting 14 months, the Millers said they have no loan and no refund. "And then, the end of April, I come and there's a foreclosure notice on our door," said Paula Miller. "Now what?"
  • Lynn Franks is another homeowner who withdrew $2,000 from her retirement account to pay for a loan modification she says she never received. "They told me I would be a perfect candidate," said Franks.
  • Three homeowners took "TMG" to small claims court and won. In one case, a judge wrote, "They (TMG) accomplished nothing...nor does it appear they exerted any effort to try to do so."
  • Tracie Lee is another homeowner who won her court case as well. In her case, Lee said she spoke on several occassion to Gregory D. Lewis about her loan modification. It turns out that Lewis has a criminal background. A mortgage fraud task force in Cuyahoga County convicted Lewis and six others in 2009 for obtaining $3 million worth of fraudulent loans. He was sentenced to five years probation.

For the story, see Homeowners complain Ohio loan company took thousands in cash (Loans preventing foreclosure never happened).

For the Ohio Attorney General press release, see Attorney General DeWine Files Suit Against Cleveland Foreclosure Rescue Company.

For the Ohio AG lawsuit, see State of Ohio v. The Modification Group, LLC, et ano.

New Mexico AG Accuses Purported Mobile Home Peddler Of Targeting Immigrants With Downpayment Ripoffs

From the Office of the New Mexico Attorney General:
  • Attorney General Gary King says an apparent scam is being perpetrated against mobile home buyers in Albuquerque who never take delivery or get their deposit money back.
  • "We filed a civil lawsuit today against Fernando Chavez-Guillen, who we believe is targeting immigrant consumers," says AG King. "He is charged with misrepresenting mobile homes he is selling; failing to deliver; taking cash deposits and failing to return them when delivery is not made; all without a proper state license."

For more, see AG Alleges Misrepresentation in Mobile Home Sales... Lawsuit Filed Seeks Restitution & Civil Penalties.

DeKalb County Declares War On Roadside 'Bandit' Signs Peddling Foreclosure Rescue, Junk Car Buyers, Etc.

In DeKalb County, Georgia, The Atlanta Journal Constitution reports:
  • The brightly colored signs shoved into the ground next to DeKalb County roads have a new enemy: all county workers. Any county employee assigned a vehicle – including sanitation workers and animal control officers -- soon will be authorized to remove illegal signs and placards along roadsides countywide under a law approved Tuesday by the Board of County Commissioners.
  • I’m seeing a whole lot of ‘We Buy Junk Cars” out there," said Commissioner Larry Johnson, who pushed for the law. “Removing these kinds of signs helps keep DeKalb beautiful.”
  • The county’s code enforcement division is charged with handling the nuisance signs, which also appear tacked to utility poles and slathered on buildings. That office, though, is overwhelmed with keeping an eye on properties, officials say. DeKalb is among top three counties in the state for foreclosures, with more than 13,000 in its borders.
  • Empowering other county workers to yank out illicit signs will give those enforcement officers a hand in battling the problem. Johnson said he also plans a crackdown on violators, who faces civil fines when caught.
  • The county will spend the next few months training workers on how to spot illegal signs, such as the ones advertising ways to avoid foreclosure, versus proper ones such those for real estate. County workers will be allowed to start removing signs in the fall. "The truth is, these illegal signs are a lot like graffiti,” said Commissioner Jeff Rader. “The quicker you can get them down, the more you deny them any benefit of being up.”

Source: DeKalb enlists county workers to police signs.

Friday, May 13, 2011

NC Appeals Court: Insufficient Proof Of Promissory Note Ownership Sinks Foreclosure; "Stephan" Affidavit At Center Of Crappy Paperwork

In Raleigh, North Carolina, The Charlotte Observer reports:
  • Lenders statewide may have to work harder to get their paperwork right in foreclosure cases after an N.C. Court of Appeals decision. The court has ruled against a lender in a 2009 Hyde County foreclosure, saying the documents presented did not prove the lender was the legal holder of the homeowners' promissory note to repay. The court's decision stopped the foreclosure, at least for now.
  • The $525,000 home loan to Rex and Daniela Gilbert - like many mortgages in the nation in recent years - was passed among several lenders. N.C. law requires "that the party seeking to foreclose on a promissory note is the holder of said note....and the debtor is entitled to demand strict proof," according to the 3-0 opinion written by Judge Robert Hunter.
  • The court found that two affidavits by GMAC Mortgage employees did not explain how the signers had knowledge of some testimony. One affidavit was signed by Jeffrey Stephan. The appeals court opinion noted GMAC "recently was found to have submitted a false affidavit ... by signing officer Stephan" in U.S. District Court in Maine. His name also has been cited in reports about lenders whose workers robo-signed hundreds of documents without knowing what they contained.


  • Katherine Parker-Lowe of Ocracoke, the Gilberts' attorney, said of the court opinion filed last week: "I think it's a great day for homeowners." [...] Jerry Hartzell, a Raleigh lawyer who consulted with the Gilberts' attorney, applauded the appeals court "about how picky they're getting with affidavits. That seems to be a consequence of the robo-signing stuff - about how mortgage servicers are swearing to things they don't really know about. Who knows how many foreclosures that could affect?"


  • [Mecklenburg Clerk of Superior Court Martha Curran] sees the ruling as a strict application of existing law, a message from the courts to "get it right, get it right." The N.C. attorney general's office "is carefully reviewing" the Gilbert case, said a spokesman. "It's a significant issue."

For more, see Homeowners favored in court ruling (N.C. appeals court: Lenders must have solid foreclosure documents).

For the court ruling, see In re Foreclosure of Gilbert, NO. COA10-361 (NC App. May 3, 2011).

(1) The appeals court made this observation on the importance of establishing, by sufficient evidence, the ownership of the promissory note before proceeding with a foreclosure (except where noted, bold text is my emphasis):
  • Respondents also argue the trial court erred in ordering the foreclosure to proceed, as Petitioner did not prove that it was the holder of the Note with the right to foreclose under the instrument as required by section 45-21.16(d)(i) and (iii). We agree.

    A “foreclosure under a power of sale is not favored in the law and its exercise will be watched with jealousy.” In re Foreclosure of Goforth Props., Inc., 334 N.C. 369, 375, 432 S.E.2d 855, 859 (1993) (citations and internal quotation marks omitted). That the party seeking to foreclose on a promissory note is the holder of said note is an essential element of the action and the debtor is “entitled to demand strict proof of this element.” Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978).

    For the trial court to find sufficient evidence that Petitioner is the holder of a valid debt in accordance with section 45-21.16(d), “this Court has determined that the following two questions must be answered in the affirmative: (1) ―is there sufficient competent evidence of a valid debt?'; and (2) ―is there sufficient competent evidence that [the party seeking to foreclose is] the holder[ ] of the notes [that evidence that debt]?'” Adams, __ N.C. App. at __, 693 S.E.2d at 709 (quoting In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 804–05 (1978)); see N.C. Gen. Stat. § 45-21.16(d) (2009) (in order for the foreclosure to proceed, the clerk of court must find, inter alia, the existence of a “valid debt of which the party seeking to foreclose is the holder,” and a “right to foreclose under the instrument” securing the debt) (emphasis added).

    Establishing that a party is the holder of the note is essential to protect the debtor from the threat of multiple judgments on the same note.

    If such proof were not required, the plaintiff could negotiate the instrument to a third party who would become a holder in due course, bring a suit upon the note in her own name and obtain a judgment in her favor. . . . Requiring proof that the plaintiff is the holder of the note at the time of her suit reduces the possibility of such an inequitable occurrence. Liles, 38 N.C. App. at 527, 248 S.E.2d at 387.

MI Suit Seeks Hundred$ Of Million$ From MERS Over Allegedly "Illegally Prosecuted" F'closures; Points To Recent State Appeals Court Ruling For Support

In Detroit, Michigan, Bloomberg reports:
  • Mortgage Electronic Registration Systems Inc. "illegally prosecuted" non-judicial foreclosures in Michigan and owes more than $100 million to people who lost their homes, lawyers for three homeowners said in a lawsuit.
  • The homeowners said Merscorp Inc.'s MERS, which runs an electronic registry of mortgages, used Michigan's so-called foreclosure by advertisement process illegally and "misappropriated" their homes. Any foreclosures by MERS using this process in Michigan should be voided, they said in their complaint filed in federal court in Detroit.
  • Michigan is one of 27 states where banks don't have to get a court's permission to seize a property, meaning homeowners have to bring their own lawsuit to halt a foreclosure. Michigan law lets mortgage lenders or servicers foreclose after advertising a default in a newspaper for four consecutive weeks.
  • MERS "lacked the authority to foreclose by advertisement" because it didn't own or have any interest in the underlying debt and "was not the servicing agent of the mortgage," Maryla Depauw and Sharon and Terrance Lafrance, the homeowners said, in their complaint filed yesterday. MERS "knowingly, fraudulently and illegally" foreclosed on homes for years using a law it "had no authority or right to utilize," they claim.
  • MERS is required to take foreclosures to court, their lawyers said, citing an April 21 decision by Michigan's Court of Appeals.(1) The decision, which voided two property seizures, said state law requires a foreclosing party to own the legal title to the debt.


  • Depauw and the Lafrances filed their suit as a class action, seeking to represent all other Michigan property owners "whose property was illegally foreclosed upon by MERS." They're asking for more than $100 million in actual damages on multiple counts including fraud and wrongful foreclosure, as well as more than $300 million in punitive damages.

For the story, see Merscorp Mortgage Registry Sued Over Michigan Foreclosures.

For the lawsuit, see Depauw v. Mortgage Electronic Registration Systems Inc.

(1) For the Michigan appeals court 2-1 majority ruling, see Residential Funding Co, LLC v Saurman, ___ Mich App ___, ___ NW2d ___ (April 21, 2011) (for publication).

Go here for the dissenting opinion.

Elderly, Infirm Foreclosure Rescue Scammer Dodges Prison Time After Guilty Plea In Fractional Interest Deed Transfer Bankruptcy Ripoff

In Los Angeles, California, the Contra Costa Times reports:
  • 75-year-old Van Nuys man was ordered [] to spend a total of eight months in a halfway house and under home confinement for his role in a scheme that used phony bankruptcy filings to stall foreclosures of nearly 1,500 homes. Darwin Bowman pleaded guilty in February in Los Angeles federal court to bankruptcy fraud.

  • U.S. District Judge Stephen V. Wilson, noting Bowman's age and ill health, sentenced him to four months in a halfway house and four months in home confinement, followed by three years under supervised release.

  • "I don't think you ought to give him gold stars ... to my way of thinking he's a crook," Wilson said, but added that he would have a hard time sending Bowman to prison when the defendant's condition was taken into consideration. Bowman was the third person to plead guilty in the case.

  • According to Assistant U.S. Attorney Evan J. Davis, the perpetrators of the scheme improperly postponed foreclosures on $725 million worth of mortgages and caused banks and lenders to lose out on loan payments from homeowners.

  • Bowman -- and co-defendants Irving Cohen and Robin Phillips-- advertised a foreclosure rescue service that promised at-risk homeowners their properties could be saved in exchange for monthly payments of about $1,500, Davis said.

  • After collecting the first fee installment, the defendants had the property owner sign a deed that granted a one-eighth interest in the home to a fictitious person. They would then file a bankruptcy petition in the name of the non-existent individual without the homeowner's knowledge, Davis said. The fraudulent bankruptcy filing triggered an automatic stay of the foreclosure proceedings in each instance.

  • When a lender would succeed in having the bankruptcy case dismissed, the defendants would have their client sign another deed that granted another interest in the home to a different fictitious person. They would then file another bankruptcy case in the new fictitious person's name, according to the U.S. Attorney's Office.

  • The fraudulent deeds and bankruptcy filings allowed the defendants to repeatedly postpone foreclosures while collecting $550,000 in fees from homeowners, prosecutors said.
For the story, see Van Nuys man sentenced to probation in foreclosure-rescue scam.

See Final Report Of The Bankruptcy Foreclosure Scam Task Force for a discussion of fractional interest deed transfer scams and other foreclosure rescue rackets involving the abuse of the bankruptcy courts.

Go here for other posts on fractional interest deed transfer, foreclosure rescue bankruptcy scams.

Wednesday, May 11, 2011

Baltimore Judge Questions Foreclosure Mill Over Robosigned Paperwork As Voided Maryland Foreclosure Sales Over False Affidavits Begin To Hit Fan

In Baltimore, Maryland, The Baltimore Sun reports:
  • A Baltimore judge summoned attorneys from a large foreclosure law firm Monday to explain whether signatures on key documents were genuine, part of the fallout from revelations last year that foreclosures nationwide were being processed based on deficient — or fraudulent — paperwork.
  • Virginia-based Shapiro & Burson was the third law firm called this year before Baltimore Circuit Judge W. Michel Pierson. He has heard admissions from several attorneys — at Shapiro & Burson and elsewhere — that their signatures on affidavits required to foreclose on homeowners were sometimes made by other people.


  • Some cases have been dismissed, voluntarily or by order of a judge. Last week a Kent County judge threw out a case — after the home was auctioned and that sale was ratified — because an affidavit misrepresented the nature of the borrower's debt, though the amount itself was likely correct. The mortgage servicer can file a new foreclosure case but will have to start from square one.
  • Attorney Mike Morin, who represented the Kent County homeowner pro bono, said it's the first such Maryland foreclosure he knows of that was dismissed after a ratified sale because of a "false or fraudulent affidavit." "It may seem like a minor victory, but to say I was tickled is an understatement," he said Monday.
  • Attorney Phillip Robinson of Civil Justice, a Baltimore nonprofit that has challenged mortgage servicers to get them to drop foreclosure cases with improper documentation, fears the true ownership of homes that go to foreclosure auction on the basis of false affidavits could be called into question later.(1)

For more, see Foreclosure attorneys called in to answer to judge (In Baltimore and elsewhere, questions arise about which signatures are genuine and which aren't).

See also, The Daily Record: Attorneys, notaries on the hot seat over foreclosure filings (requires paid subscription) (if no subscription, GO HERE).

See also, Lawyers questioned in Baltimore City Circuit Court on foreclosure.

(1) It's only a matter of time before the 'quagmire' infection that's been reported hitting the Massachusetts and Michigan real estate resale markets begins hitting the newspapers in Maryland (and elsewhere), See Michigan To Join Massachusetts As Real Estate Resale Market Quagmire After Recent State Appeals Court 'Anti-MERS' Ruling?

Computer Keystroke Error Costs Foreclosing Lender $400K As Winning Bidder Snags Home Out From Under Citibank For Pennies On The Dollar

The following facts have been taken from a recent Washington State Court of Appeals ruling:
  1. Citibank moves to carry out a non-judicial foreclosure sale in which it is owed $487,000+.

  2. Citibank intends to post an opening bid to be $442,837.50.

  3. Through the magic of a computer keystroke error, a Citibank employee dropped the "2" and miscommunicated an opening bid in the amount of $44,837.50 to the trustee, which it posted on its website.

  4. An employee of a foreclosure research company contacted the trustee to confirm the opening bid amount. The employee pointed out to the person with whom she spoke that she thought the bid seemed low, but the trustee confirmed that the bid was correct.
  5. The next day, the foreclosure research company employee contacted the trustee again, who again confirmed that the bid amount was $44,837.50.

  6. On the day of the foreclosure sale and upon the trustee's announcement of the beginning of the sale, an interested bidder asked that the trustee confirm the opening bid. The trustee confirmed the bid again to be $44,837.50.

  7. But as the trustee began the recitation for the sale, he suspended the sale, stating he was going to make a phone call to confirm the opening bid. The trustee went into an adjacent building and, when he returned, confirmed the opening bid.

  8. The interested bidder bid $45,000, which was the only, and winning, bid.

  9. Upon discovery of the error, the presumably horrified Citibank instructed the trustee not to deliver the deed to the winning bidder.

  10. The trustee notified the winning bidder, stating that the bidding was defective and "the sale would be deemed a nullity."

  11. The winning bidder's counsel sent a letter to the trustee demanding the issuance of the deed.

  12. The trustee advised the winning bidder that it would not deliver the deed due to defective bidding and it attempted to refund the bid amount to the winning bidder.

  13. The same day, the winning bidder filed a complaint seeking to quiet title to the property in himself and damages.

  14. After litigation of the issues, the lower court ruled in Citibank's favor, possibly telling the winning bidder "Nice try, but take a hike!"

  15. Heeding the judge's advice, the winning bidder took a hike - directly to the appeals court for a review of the ruling.

On appeal, the three-judge panel saw the case differently from the trial judge, finding that the lender's

  • "unilateral mistake in the bid price and relaying the erroneous bid price to the trustee does not constitute "defective" bidding under the deed of trust act's consumer protection provision."

Accordingly, the appeals court reversed the trial court's order granting summary judgment in Citibank's favor and remanded with instructions to enter summary judgment quieting title in favor of the winning bidder.

Congratulations to Citibank for another screw-up well done.

For the ruling, see Breiwick v. First American Title Insurance Company, No. 65004-1-I (Wn. App., Div. 1, May 9, 2011) (unpublished).

Banksters Continue Burying Lawsuit Waiver Clauses In Fine Print Of Loan Modification Agreements

Pro Publica and Slate report:
  • A few months ago, Bank of America offered Sergio Cortez of Staten Island, N.Y., the help he desperately needed to stay in his home: a break on his mortgage. Like millions of others, he was facing foreclosure. But there was a catch buried in the fine print. Cortez had to waive any possibility of ever suing the bank for anything relating to the loan.
  • Cortez isn't alone. While regulators have banned the practice, some banks and others who handle mortgages have still been forcing homeowners into a corner: You want a chance at saving your home? Then you'll have to waive your rights.


  • We identified eight banks and other mortgage servicers who offer help that limits homeowners' ability to sue or fight foreclosure. When we contacted them, they offered a variety of responses. Some said the inclusion of the waivers had been a mistake and would stop. Some argued that language that seemed to waive the homeowner's rights didn't actually do so. One argued that a loophole in a rule barring the practice meant their inclusion in certain agreements was proper.

For more, see In Fine Print, Banks Require Struggling Homeowners to Waive Rights.

Go here for a few examples of the clauses banksters bury deep in the fine print of loan modification agreements.

'Lien Stripping' In Bankruptcy Proceedings A Quick, Easy Way For Homeowners To Void Completely Underwater 2nd Mortgages; Helps Avoid Foreclosure

The San Jose Merury News reports:
  • Stung by the crash of the housing market, some struggling homeowners are using a little known but increasingly popular provision of the bankruptcy code to eliminate second mortgages and avoid foreclosure.
  • Statistics are hard to come by, but bankruptcy lawyers say the provision has been used effectively on hundreds, if not thousands, of cases in the [San Francisco] Bay Area during the past two years.
  • "It's a big thing in our valley," said James "Ike" Shulman, a San Jose bankruptcy lawyer. "But it's not widely known." Shulman, co-founder of the National Association of Consumer Bankruptcy Attorneys, said he has helped a number of clients who have filed for personal bankruptcy use the law to hold on to their houses -- including three last week.
  • Cathy Moran, a Mountain View bankruptcy lawyer, said one of her clients had a $132,000 second mortgage voided by the court. "This is a really big-ticket issue that allows people to keep a home and conform the mortgage to something closer to real value," Moran said.
  • Bankruptcy laws prevent homeowners from eliminating the debt of a first mortgage if they plan to stay in their home. But second mortgages are treated differently. They can be declared unsecured debt when there is no equity to cover them, as is the case for millions of houses that are now worth far less than a few years ago.
  • When that happens in a personal bankruptcy proceeding, the second mortgage is put on hold and no payments are required while the homeowner completes a repayment plan for other debts -- which typically takes three to five years. At that point, the second mortgage is eliminated.


  • One of Shulman's clients, [...] was struggling to keep the San Jose house she bought in 2005 for $612,000. Her home's value has dropped to about $367,000 -- less than her first mortgage of $489,000 -- which allowed her to petition the bankruptcy court to set aside her $122,000 second mortgage. The court granted her motion. She successfully completed her payment plan for other debts two months ago, and her second mortgage is now eliminated.


  • The law has been like this for years, bankruptcy lawyers say. It's just never been used as much because in the past there was usually enough equity in a home to cover the second mortgage.
  • "We're having great results" using the rule, said Brette Evans, a San Jose bankruptcy lawyer. In one recent case, a small-business owner was able to hang on to her home by setting aside a $240,000 second mortgage, she said. That put the borrower in "a safe zone" where she could work out a modification of her first mortgage, Evans said.

For the story, see Bankrupt Bay Area homeowners shed second mortgages.

Go here for more on 2nd mortgage lien stripping in bankruptcy proceedings.

Tuesday, May 10, 2011

Bagged Again: State Appeals Court Reverses Another Rubber-Stamped Ruling From C. Florida Judge; Judgment Obtained Thru 'Sewer Service' Gets The Boot

In a straightforward, two-paragraph ruling, a three-judge panel of Florida's Fifth District Court of Appeal recently reversed another foreclosure judgment from an Orange County Circuit Court issued by Senior Judge Emerson R. Thompson, Jr.

As was the case in an earlier ruling from this rubber-stamper,(1) the dearth of extensive legal analysis in this case in which the three-judge appeals panel needed only two paragraphs to dispose of, coupled with the fact that no attorney bothered to appear on appeal on behalf of the foreclosing bankster, is an indicator that the foreclosure judgment was so obviously flawed on its face that it shouldn't have required the effort and expense to seek an appeals court correction to arrive at the proper result in the first place.(2)

Again representing another screwed-over homeowner was Kaufman, Englett & Lynd, PLLC, of Orlando, Florida.

For the ruling, see Silva v. BAC Home Loans Servicing, L.P., 5D10-3511 (Fla. 5th DCA, May 6, 2011).

(1) See Florida Appeals Court Reverses Foreclosure Judgment, Boots Case Back To Lower Court As 'Senior' Judge Gets 'Nabbed' For Empty-Headed, Rubber-Stamping.

(2) The court ruling follows:

  • Abner Silva, the defendant below, seeks review of an order denying his motion to set aside a default final judgment entered against him. We reverse.

    In this foreclosure case, substituted service of process was secured on Silva under section 48.031, Florida Statutes (2010), by serving a “Luz Rodriguez”, who purportedly lived at the mortgaged property. However, the affidavits and other information submitted in support of Silva’s motion below established that the mortgaged property had been vacant for some time prior to the purported service, that he did not know anyone by the name of Luz Rodriguez, and that his usual place of abode was, and had been for eighteen months prior to the purported service, in Miami.

    The party seeking to invoke the court’s jurisdiction has the burden to prove the validity of service of process. See Torres v. Arnco Constr., Inc., 867 So. 2d 583, 587 (Fla. 5th DCA 2004). This record does not reflect competent evidence that BAC Home Loans Servicing L.P., the plaintiff below, met that burden. The default judgment was, therefore, void and must be set aside. See Alvarez v. State Farm Mut. Auto. Ins. Co., 635 So. 2d 131 (Fla. 3d DCA 1994).


Another Bankster Jumps Gun With Premature Lockout - Another Homeowner Left On Outside Looking In

In Oakdale, Minnesota, the Oakdale Patch reports:
  • An Oakdale homeowner whose home was is in the foreclosure/short sale process called police Wednesday, May 5, to report that someone had changed the locks on her home, according to an Oakdale police report.
  • The resident, whose home is in the 6300 block of 11th Street said she still had legal rights to the property until at least July 5. However, when she went to the house, there was a notice on the door from Mortgage Contracting Services that said the property was determined abandoned/vacant and so the locks were changed, the report says.
  • The complainant had last been to the home about two weeks ago, the report says. Police called a representative from the company, but because it was after-hours, limited information was available, according to the report.

Source: Mortgage Company Locks Out Homeowner.

Georgia Woman Faces Heat For Allegedly Recording Bogus Land Documents Claiming Ownership To One Vacant Home, Cancelling Mortgage On Another

In DeKalb, County, Georgia, WSB-TV Channel 2 reports:
  • A Channel 2 Action News investigation has put a north Georgia woman under the spotlight for allegations that she tried to steal a $1 million Decatur home. The woman now faces a criminal investigation by the DeKalb County District Attorney.
  • Channel 2 investigative reporter Jodie Fleischer uncovered paperwork the woman filed, claiming ownership of the home, but the home is actually owned by a bank. [... A] document filed at the DeKalb County courthouse showed a woman named Susan Weidman claimed possession of the house because of its “apparent abandonment.”


  • In March, prosecutors indicted twelve people for racketeering after Channel 2 exposed their scheme to steal houses last summer. Records show the same district attorney has now opened a criminal case against Weidman for her actions.
  • He said the case could also include her cancelling her own mortgage in Cobb County. The mortgage company has since filed paperwork declaring the cancellation invalid.

For more, see Woman Accused Of Trying To Rent Foreclosed Home.

Tennessee Banksters Finance Major Campaign To Make Easy Foreclosures Even Easier Throughout State

The Knoxville News Sentinel reports:
  • Legislation to cut back on the number and length of home foreclosure legal notices now required in Tennessee is being pushed by bankers who stand to save money if the bill passes and opposed by newspapers that stand to lose money.
  • While that is clear, the two sides - both aided by a contingent of lobbyists - clashed sharply over whether the proposed change would benefit financially strapped homeowners and the general public as the bill advanced in the House last week.
  • As drafted and introduced at the behest of the Tennessee Bankers Association, HB1920 would require that just one notice of a pending foreclosure be published in a newspaper based in the county where the property is located.
  • Current law requires three notices. That has been the case for more than 125 years in Tennessee, according to Steve Baker, a Nashville foreclosure attorney who testified before committee in support of sticking with the "tried and true" three-time publication rule.


  • Indeed, others say that, politically speaking, legislators may have more to fear from the bankers who collectively gave more than $200,000 to state political candidates last year, according to a review of records by The Tennessean. That includes $184,750 donated by the Tennessee Bankers Association political action committee to candidates for the Legislature.


  • [H]enry Hildebrand, a bankruptcy trustee in Middle Tennessee, told legislators that he has seen "hundreds" of cases over the past 20 years of legally defective foreclosure moves by banks that were never detected until they reached U.S. Bankruptcy Court. He opposed the bill for reducing one of the few safeguards now benefiting homeowners in Tennessee.
  • "Tennessee already has one of easiest foreclosure processes in the country for banks," said Mary Mancini, executive director of Tennessee Citizen Action, a consumer advocacy group. "To remove a notice or two in the newspaper, which is still the only source of information from the outside world for some people, is a very bad idea."

For more, see Foreclosure bill fight rages (Publishing info in newspapers costly, bankers group says).

Monday, May 09, 2011

Another MERS Mess: Unrecorded Mortgage Assignment Sinks Idaho Foreclosure Attempt; Ruling Could Affect 1000s, Say Homeowner's Attorneys

In Coeur d'Alene, Idaho, the Coeur d'Alene Press reports:
  • For Cynthia Griffin, the court victory is a small step in what has been a long fight. Nevertheless, for the first time in months, the stress of not knowing if she and husband Matthew Griffin will lose their home is gone.


  • That burden was erased thanks to a First District judge ruling this week that the lending company which claimed it owned the mortgage on the home didn't follow the proper steps to obtain it, so didn't have the legal right to foreclose on the Coeur d'Alene couple's East Summit Drive house. A small, but important step for the husband and wife.
  • But the Griffins' attorneys, Jeff Crandall and Regina McCrea, think the order could affect thousands of Idaho homeowners who have already foreclosed or are in the process of doing so.
  • They said the same steps that Texas-based Residential Credit Services Inc. skipped when it acquired the mortgage from the former lender and now bankrupted American Home Mortgage are being done by other lenders across the state.
  • "It could be a fairly significant issue," Crandall said. "It does call into question foreclosures that are pending and those that have already been completed."
  • The suit stems from MERS, or the Mortgage Electronic Registration Systems, Inc. MERS, created by the mortgage banking industry, is a privately held company which operates an electronic registry for servicing rights and mortgage loan ownership. It was created, according to its website, to streamline the mortgage process by using electronic commerce to eliminate paper.
  • The problem, at least according to First District Judge Benjamin Simpson's Tuesday ruling, is that electronic filing of MERS didn't register the lien transfer in the Kootenai County records department. Since documenting ownership at the county level is required by state law, RCS wasn't the legal owner of the mortgage and couldn't foreclose. "It's crazy," Cynthia Griffin said. "I think people should check their mortgages and see who really owns it."


  • MERS has come under the microscope since the financial fallout of 2008. It has been the focal point of court cases, including a 2010 ruling by Washington, D.C., Attorney General Peter Nickels that stated a foreclosure couldn't happen unless the "current noteholder is properly supported by public filings with the District's Recorder of Deeds."


  • Simpson's order to stay the foreclosure was entered as part of a quiet title action brought by the homeowners against RSC. That suit, filed in March, seeks to have the mortgage lien invalidated and removed from the title records since it was illegitimately transferred. Crandall and McCrea said the order bodes well for the rest of the case since it's challenging on the same set of facts.
  • And in their research for the case, the attorneys estimated around 50 percent of mortgages have been filed with MERS in the state, so the effects could be far-reaching in Idaho. They called the electronic process a step the banking world skipped in order to avoid paying filing fees at the county records department.

For the story, see Premature foreclosure (Judge rules lending company didn’t follow proper steps to obtain couple’s home).

Michigan To Join Massachusetts As Real Estate Resale Market Quagmire After Recent State Appeals Court 'Anti-MERS' Ruling?

The Detroit Free Press reports:
  • Local Realtors say title companies are canceling closings on some bank-owned homes after a recent Michigan Court of Appeals decision made it more risky to insure them. Late last month, the court ruled the Mortgage Electronic Registration System lacks authority to foreclose by advertisement in Michigan.(1) The system is an electronic record-keeper of mortgages.


  • Raymond DeBates, president of Colonial Title in St. Clair Shores, said that he has not had to cancel any closings yet, but he has put some files aside and is waiting for underwriters to indicate whether the deals can close or not. "This invalidates every foreclosure where MERS was involved," DeBates said. "They could set aside all these MERS transactions. It would be a catastrophe. And that's what we have."


  • Joan Downing, broker/owner of Re/Max in the Hills in Bloomfield Hills, said the ruling's impact started becoming apparent late last week with panicky calls from agents saying deals were unraveling at the closing table as title companies withdrew insurance on the titles.
  • "Some of these people have sold their other homes and now they are in limbo," Downing said. "What impact is it going to have on people who have already closed and have put money into the homes? Title companies are also saying they aren't sure they want to get involved in refinances of homes that were foreclosed by MERS."
  • And Marshall Mandell, a foreclosure specialist with Re/Max Classic in Farmington Hills, said many buyers will be affected including moving delays, lost fees paid for appraisals, inspections and financing as well.
  • "We are having closings canceled to a meaningful extent, which is scary because we're losing essential closings and we can't yet tell how deeply or how long this will affect us," Mandell said. "So far it seems to be about 20% of my personal inventory, but it's too early to know for sure."(2)


  • Terry Cramer, a Troy attorney whose firm Orlans Associates represents Bank of New York Trust, said the lender had not made a decision about whether to appeal to the Michigan Supreme Court. "The fact that there was a dissenting opinion indicates there is a little room there to interpret it a number of different ways," Cramer said.(3)

For the story, see Closings canceled on some bank-owned homes after court rules against MERS.

For an earlier post, see MI Appeals Court: MERS' Screw-Up Makes F'closure Proceedings Void Ab Initio (Does State Now Have 'Ibanez' Problem w/ Respect To Future Titleholders?).

(1) For the Michigan appeals court 11-page majority ruling, see Residential Funding Co, LLC v Saurman, ___ Mich App ___, ___ NW2d ___ (April 21, 2011) (for publication).

(2) The Commonwealth of Massachusetts has already been going through the 'quagmire' problem in its real estate resale market as a result of the 'Ibanez' court ruling. See:

(3) Go here for Judge Kurtis T. Wilder's 6-page dissent.

An appeals court judge's vigorous dissent, in which he/she carefully lays out the reasons why he/she believes the majority ruling is in error, can reasonably be interpreted as an implicit 'invitation' by the dissenting judge to the losing party to either:

  • Request an en banc rehearing of the case (before the entire appellate court), or alternatively,
  • File an appeal with the state's highest court (in this case, the Michigan Supreme Court).

Memphis, Shelby County Get Green Light In 'Reverse Redlining' Fair Housing Litigation Against Alleged "Ghetto Loans" Peddler

In Shelby County, Tennessee, the Memphis Daily News reports:
  • One week after a federal judge in Baltimore denied an effort by Wells Fargo to dismiss that city’s mortgage discrimination lawsuit against the lender,(1) a federal judge in Memphis has done the same thing.
  • U.S. District Judge S. Thomas Anderson has denied a motion by Wells to dismiss a lawsuit Memphis and Shelby County jointly filed against Wells in late 2009. That means both governments can now move forward with their suit that alleges Wells improperly pushed black borrowers into high-cost loans. The suit also claims black homeowners were targeted for burdensome refinance and home equity loans.
  • The court holds that plaintiffs have alleged sufficient facts to establish standing to pursue claims for violations of the Fair Housing Act and the Tennessee Consumer Protection Act,” Anderson wrote in his ruling.
  • Additionally, plaintiffs have adequately pled their claim that Wells Fargo’s lending practices had a disparate impact on African-Americans in Memphis and Shelby County in violation of the FHA.” The local lawsuit against Wells has been pending for almost a year and a half.

For more, see Federal Judge Denies Local Wells Fargo Suit Dismissal.

(1) See Baltimore Finally Gets Green Light To Continue Against Alleged "Ghetto Loans" Peddler In Reverse Redlining Suit; Ruling May Help Similar Memphis Case.

Baltimore's earlier complaints included testimony from two former high-ranking Wells Fargo employees stating that Wells Fargo intentionally made bad loans to African-Americans. The employees, who worked out of Virginia and Maryland but knowledgeable about the company's national lending practices, according to the complaints, said Wells Fargo marketed subprime loans to predominantly African-American ZIP codes and churches, used software to "translate" marketing materials into African-American vernacular, and that company officials referred to the loans in minority communities as "ghetto loans" and to the borrowers as "mud people." See The Daily Record: Ex-workers allege race-based loan approach at Wells Fargo.

Go here to read more about the Baltimore case, and here to read more about the Memphis case, and here for earlier posts on the "ghetto loans" allegations made against Wells Fargo.

Sobbing Sale Leaseback Peddler Falls Short In Failed Attempt To Bawl Her Way Out Of Four Years In Federal Prison For Running Equity Stripping Racket

In Norfolk, Virginia, The Virginian Pilot reports:
  • Despite tearful pleas for leniency, a Chesapeake woman who orchestrated a mortgage fraud scheme received four years in prison for the crime. "My apology and expression of repentance is long overdue," Shanita Lacy told U.S. District Judge Henry Coke Morgan Jr. "Today I offer no excuses for my actions. I know what I did was wrong. I know that I messed up the lives of so many others."
  • Morgan said her apologies came too late, sentencing Lacy to near the top end of federal sentencing guidelines. "Your apology would have been better presented to victims before today," Morgan told her.
  • Lacy operated Clean Slate Financial Services in 2007 and 2008, when she defrauded banks and homeowners of $1.5 million. Lacy claimed to repair distressed homeowners' credit by refinancing their homes but instead sold the homes to straw buyers and lied to banks to obtain new, larger mortgages. She then paid off the old mortgages and kept the difference for herself.
  • As the real estate market collapsed, the loans went into default and the homeowners lost their properties. Morgan also ordered Lacy to repay $884,000 - the amount the banks and eight homeowners lost because of foreclosures. Officials said they have recovered nothing from Lacy. Her own home in Chesapeake, assessed at more than $500,000, is in foreclosure.(1)

Source: Chesapeake woman gets 4 years in mortgage scam.

Go here for links to other posts on Criminal Prosecutions Of Sale Leaseback Peddlers In Equity Stripping Foreclosure Rescue Deals.

(1) For earlier stories on Shanita Lacy, see:

Sunday, May 08, 2011

Sale Leaseback Peddler Dodges Major Penalties After Missouri AG Probe; Agrees To Pay $51K Restitution To Screwed-Over Victims Of Equity Stripping Scam

From the Office of the Missouri Attorney General:
  • Attorney General Chris Koster said [] he has obtained a consent judgment against a Greene County man who allegedly engaged in a foreclosure scam to trick vulnerable homeowners into transferring ownership of their homes to him and his associates.
  • Koster filed an amended petition against Brian Thompson, of Greene County, in 2009, contending that he engaged in a “foreclosure rescue” scheme to gain the equity in homes that were subject to foreclosure.
  • According to the amended petition filed by Koster’s office, Thompson would search foreclosure listings in a periodical called “The Daily Events.” He would then contact homeowners promising to stop their foreclosures by purchasing the home or finding a buyer for the home who would pay off their mortgage. Thompson and his associates kept the equity in the homes as profit.
  • Thompson then told homeowners he would lease the home back to them and would resell them the home if they could obtain a new mortgage. There was no written contract between Thompson and the homeowners setting out the terms of his services or the amount of his fees.
  • Some homeowners ended up losing title to their homes or the equity in their homes; others were evicted from their homes when they were unable to make their lease payments.


  • Koster said under the consent judgment, Thompson is required to pay $51,000 restitution and is prohibited from violating Missouri’s Merchandising Practices Law in the future.

For the Missouri AG press release, see Attorney General Koster announces settlement in foreclosure scheme.

Michigan AG Probe Leads To 'False Pretenses' Conviction, At Least 30 Months Incarceration For Head Of Loan Modification Racket

From the Office of the Michigan Attorney General:
  • Attorney General Bill Schuette [] announced the sentencing of a DeWitt man who pled guilty to five felony charges in connection with his role in an illegal advanced fee "foreclosure rescue" operation. Isaac Modert, 28, defrauded four Michigan homeowners with homes in Lansing and Benton Harbor. As a result of Modert's actions, the four victims lost more than $20,000 and one Lansing couple ultimately lost their home to foreclosure.


  • Modert told victims that his company, LCN Mortgage, would work with their lenders to secure a loan modification. To execute the scam, Modert enlisted the help of two employees, Aaron Teachout and Ben Walcott. Teachout assisted by arranging deposits of victims' funds into a bank account. Walcott pretended to be a loan officer who met with victims and collected payments for fabricated fees and costs related to the alleged loan modifications. Despite assurances to the contrary, Modert made no attempt to modify victims' mortgages after defrauding them of more than $20,000.

For the Michigan AG press release, see Schuette Announces Sentence for Mid-Michigan Foreclosure Rescue Scam Case.

(1) Isaac Modert was sentenced to the following:

  • Serve 30 months to 84 months for one count of Using a Computer to Commit a Crime, and
  • Serve 30 months to 60 months for four counts of False Pretenses ($1,000 - $20,000).

(The two sentences will be served concurrently).

  • Pay restitution in the amount of $20,751.40. Modert previously paid $2,000 when he entered his guilty plea on February 10, 2011, which will be applied to his total restitution payment.

Modert's company, LCN Mortgage, was also sentenced for four counts of False Pretenses ($1,000 - $20,000) and must pay a fine of $1,000 and restitution in the amount of $20,751.40.

Modert's two employees have already been convicted for their roles in the foreclosure scam:

  • Aaron Teachout, 26, of Charlotte pled guilty to one count of False Pretenses (Less than $200), was sentenced to twelve months probation, and was ordered to pay $1,000 in restitution by June 1, 2011, and he previously paid $200 on the day of sentencing.
  • Ben Walcott, 26, of Grand Rapids, pled guilty to one count of False Pretenses ($1,000 - $20,000), agreed to pay restitution of $4,100, and was sentenced to five years probation and 220 days in jail.

Convicted Sticky-Fingered Escrow Agent Who Used Check-Kiting Scheme To Pocket $1.5M Among Three Tagged w/ Administrative Charges By Minn. Regulator

From the Minnesota Department of Commerce:
  • The Minnesota Department of Commerce is continuing its crackdown on title insurance companies and mortgage originators in the state for allegedly misappropriating funds, charging fees for services not rendered, paying illegal rebates and misleading both lenders and borrowers in order to drum up business. Commerce Commissioner Mike Rothman last week signed three separate enforcement actions against mortgage originators and title agencies for alleged abuses and violations of Minnesota law.

The Commerce Department describes one administrative action against an allegedly sticky-fingered real estate closing agent:

  • The Department charged Linda Tuttle-Olson, owner of Albert Lea Abstract Co. (aka Freeborn County Abstract Co.), with allegedly misappropriating about $1.5 million in client funds. Tuttle-Olson allegedly used a portion of the misappropriated funds for her own use, spending large amounts gambling at the casino.
  • The department's investigation, which began in May 2010, found that in at least 37 cases, Tuttle-Olson misappropriated funds from escrow accounts and moved them to other bank accounts and to herself by "kiting" checks and issuing checks on accounts without sufficient funds. Check kiting is a systematic pattern of depositing non-sufficient funds (NSF) checks between two or more banks, resulting in the books and records of those banks showing inflated balances that allow NSF checks to be honored rather than returned unpaid. Examples of Tuttle-Olson's check kiting scheme can be found in the department's statement of charges.
  • A prehearing conference will be held Thursday, June 16 at the Office of Administrative Hearings in St. Paul. Tuttle-Olson and her company may be subject to a fine of up to $10,000 per violation.
  • Tuttle Olson pleaded guilty to wire fraud last week in U.S. District Court. She faces up to 20 years in federal prison. The federal case was built on the Department of Commerce's investigation.

For more, see Check Kiting, Operating a Bait-and-Switch Scheme and Paying Illegal Rebates, Kickbacks Among List of Charges.

Finding Attorneys To Replace Dumped Foreclosure Mills A Chaos-Creating Struggle

The Wall Street Journal reports:
  • Moves by banks to ditch law firms snared in the "robo-signing" mess are spreading delays and confusion to borrowers, while angering judges grappling with thousands of foreclosure cases now trapped in limbo.
  • The trouble began when U.S. banks and government-owned mortgage giants lost confidence in some law firms that handled a huge volume of foreclosures. After controversy erupted last fall over the shoddy review of loan documents known as robo-signing, banks dropped some law firms.
  • Finding replacement lawyers who can pick up the slack quickly has been a struggle. While the resulting slowdown means that fewer houses are being seized, late fees are piling up for homeowners seeking a loan modifications. Investors who own bonds backed by those mortgages could face higher costs from the snags.
  • "It's causing chaos because nobody knows who's representing whom," says Thomas Ice, a foreclosure defense lawyer in Royal Palm Beach, Fla.

For more, see Foreclosures Trapped by a Lack of Lawyers.

C. Florida Judge Spanks Two Foreclosure Mill Chiefs, Revokes Phone Privileges Over Lack Of Diligence In Prosecuting Cases, Using Unprepared Lawyers

In St. Petersburg, Florida, The Tampa Tribune reports:
  • St. Petersburg foreclosure court judge Pamela Campbell is fed up with foreclosure law firms' errors and missed hearings. So today, she ordered the heads of two major law firms that handle foreclosures on behalf of banks to show up in her Pinellas County courtroom to explain themselves. It didn't matter that they're based in Ft. Lauderdale.
  • Roy Diaz, Of Smith, Hiatt & Diaz and Marshall Watson, of the firm Marshall C. Watson both appeared before Judge Campbell, who asked them about problematic foreclosure documentation and reports of their firm sending homeowners to the wrong courthouse. "Go to your basic roots of when you were in law school," she said, chastising the lawyers.


  • The judge wanted to know why some cases were languishing and blamed the attorneys for not paying better attention. Campbell said she called them to court because she's tired of them blocking off time for cases, then sending unprepared junior lawyers.


  • Judge Campbell's verdict: She revoked phone privileges for both firms that allowed them to appear in court by phone. In other words, the South Florida firms will have to send a lawyer in person to present cases from now on.

For the story, see Judge chastises foreclosure law firm chiefs.