Friday, December 27, 2013

Lainey Hashorva: Stealing Home

From:  Stop Foreclosure Fraud

by Lainey Hashorva


Well at this point it’s pretty common knowledge that all the bloated banksters in the cartel are literally sucking the soul out of us, homeowner by homeowner, house by house, city by city, state by state. Puffing themselves up like the Pillsbury Doughboy that ate Godzilla and Manhattan. Picking their teeth with our land records.

So where are the Attorneys General? Where is that, oh geez, what was it called again? Oh yeah, The Mortgage Fraud Task Force. What ever happened to that? Maybe Jamie Dimon bought it for his daughter and commemorated it into a nice little holiday snow globe for his 2013 holiday party give away bags.

In California we have the oh so special California Homeowner Bill of Rights. AG Kamala Harris beamed, eyes glistening at the signing of that photo op behind Gov Jerry Brown, as if she’d just handed over the mega lottery loot to a homeless family of twelve. Kamala Harris is always camera ready, always ready for her next sound bite on CNN or PR release in front of the state flag. Her career path looks promising, maybe the Supreme Court, DOJ or Governor. But try to engage her in anything that actually has any real teeth to it, like say for example, millions of Californians losing their homes to Fraudclosure, neighborhoods being decimated by empty homes and neglected properties, a second tsunami of fraudclosures looming, and she’ll block you from her Facebook page. The Homeowner “Bill of Rights” offers Californians false hope of surviving the Homeowner Hunger Games. New rules and all that. It’s like telling Tony Soprano’s men that they can’t whack you while Pauly Walnuts is still raping you. Wait your turn.

But I digress. Where does a homeowner actually get anyone to really hear them out? To fully understand the soul sucking misery that we find ourselves in when trying to work with these mega banks that are on robotic search and destroy mode? Who really understands the complexities? The anguish and the insanity of the matrix we are placed in when following the “rules” in place to try to save what is ours in these unprecedented times; Our homes. Our investment. Our legal rights in a complex bloody labyrinth of red tape and manufactured BS.
We try our congressional office, they smile and nod with compassion and knowing. Tsk tsk sigh. They act as if they’ll try their best to intervene on our behalf, set you up with a special Single Point Of Contact (aka SPOC) in the “executive offices” that have a little more accountability since it’s a US Congressional office letterhead and all. Sorta put more time constraints on Pauly Walnuts to respond to our requests and the infinite supply of paperwork we fax, mail, Fed Ex and produce time after time after time after time after time.

 We have turned into a paper producing incoherent human copy machine, holding the tiniest pessimistic optimism somewhere in the back of our minds that this time we have a “complete package” with every T crossed. We have become wild eyed Vegas strip junkies gambling the entire nest egg at this point. Come on baby, ten times is the charm. I’m due damn it I’m due. Alright one more time….  MORE

Thursday, December 19, 2013

BANK OF AMERICA, N.A. vs. Ceferino S. ROSA | The decisions of the Housing Court are affirmed, and the cases are remanded for further proceedings consistent with this opinion

From:  Mario Kenny



Summary
Summary Process; Mortgage Foreclosure-- This case deals with the scope of counterclaims and affirmative defenses available to a defendant in a summary process action brought against the former owner of a home after a mortgage foreclosure.

__________________________________________________

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SJC Rules Housing Court Can Hear Title Challenges In Post-Foreclosure Evictions

In another favorable ruling for foreclosed homeowners, the Supreme Judicial Court today ruled that a distressed homeowner may challenge a bank’s title and foreclosure sale irregularities through counterclaims brought in the Housing Courts in response to a post-foreclosure eviction, rather than being forced to file separate lawsuits in the Superior Court. The case is Bank of America v. Rosa, SJC-11330 (Dec. 18, 2013).
__________________________________________________


BANK OF AMERICA, N.A. vs. Ceferino S. ROSA
(and three consolidated cases[FN1]).

SJC-11330.

Essex. Sept. 9, 2013. - Dec. 18, 2013.


In each of these consolidated appeals the plaintiff bank brought a summary process action against the former homeowner-mortgagor in the Housing Court after foreclosure. Each former homeowner raised various defenses and counterclaims in his or her answer to the complaint that challenged the bank's right to both possession and title as derived through foreclosure sale, as well as other defenses and counterclaims. In each case the bank filed a motion to strike the affirmative defenses and to dismiss the counterclaims on grounds that the only defenses and counterclaims available in summary process are (1) those allowed by G.L. c. 239, § 8A, which does not apply here because there was no landlord-tenant relationship between the parties, and (2) a challenge to title (and thereby possession) based only on a failure to comply strictly with the power of sale provided in the mortgage.
 . . .

We turn to the question whether claims that historically were required to be raised in a separate action in equity may be raised by counterclaim in the Housing Court. As discussed above, there is no question that the former homeowners can challenge the title of the banks in these summary process actions, and that they can require the banks to establish that title was acquired strictly according to the power of sale provided in the mortgage. It also is undisputed that a foreclosure sale may be set aside for other reasons in a separate action filed in a court of equity. Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 775 (1966); New England Mut. Life Ins. Co. v. Wing, 191 Mass. 192, 196 (1906). Such an action challenges the title of one claiming ownership under a foreclosure deed, and if successful, a former homeowner could preclude or defeat an eviction. Since Abbott and Wing were decided there have been many changes in the jurisdiction of courts hearing summary process cases, including the Housing Court.
 . . .
Although the equitable jurisdiction of the Housing Court is limited, see St. Joseph's Polish Nat'l Catholic Church v. Lawn Care Assocs., Inc., 414 Mass. 1003, 1003 (1993), it necessarily includes the power to grant affirmative equitable relief in summary process actions where an equitable defense to the plaintiff's title has been raised under G.L. c. 231, § 31. [FN9] Thus, when the jurisdiction of the Housing Court has been invoked in a summary process action and the validity of a mortgage foreclosure has been made an issue insofar as it affects the plaintiff's title, the Housing Court has equitable jurisdiction to enjoin or set aside a foreclosure sale that could have been ordered by the Superior Court in an independent action. A judge in the Housing Court is not constrained simply to deny the plaintiff possession of the premises. The "affirmative relief in equity," which was required by New England Mut. Life Ins. Co. v. Wing, supra, in 1906, and affirmed by Wayne Inv. Corp. v. Abbott, supra, in 1966, to set aside a foreclosure sale for reasons other than failure to comply strictly with the power of sale provided in the mortgage, formerly available only in the Superior Court, is now available in the Housing Court as well. [FN10]
 . . .

This approach was anticipated in the recent case of Bank of N.Y. v. Bailey, 460 Mass. 327, 334 (2011), and it is consistent with desirable considerations of judicial economy. We conclude that the Housing Court has jurisdiction to hear defenses and counterclaims that challenge the title of a postforeclosure summary process plaintiff, which previously only could have been the subject of an independent equity action in the Superior Court, and that the Housing Court has authority to award damages in conjunction with such counterclaims.

The decisions of the Housing Court are affirmed, and the cases are remanded for further proceedings consistent with this opinion.

So ordered.

SJC-11330, Massachusetts Supreme Judicial Court Oral Arguments

Sep 9, 2013 - Bank of America, N.A. v. Rosa, Massachusetts Supreme Judicial Court docket SJC-11330


BRIEFS
Appellant Home Loan Brief Appellant Home Loan Brief Appellant Home Loan Reply Brief Appellant Home Loan Reply Brief
Appellants Bank Of New York Brief Appellants Bank Of New York Brief Appellants Bank Of New York Reply Brief Appellants Bank Of New York Reply Brief
Appellees Rosa Ogbemudia And Bautista Brief Appellees Rosa Ogbemudia And Bautista Brief Appellee Cioffi Brief Appellee Cioffi Brief
Amicus Real Estate Bar Brief Amicus Real Estate Bar Brief Amicus National Consumer Law Brief Amicus National Consumer Law Brief

View Docket

Tuesday, December 17, 2013

Bank of America Faces Lawsuit for Violating Consumer Protection Act and Vermont Foreclosure Laws

From:  LoanSafe


(Source: Attorney General William H. Sorrell) – The Office of Vermont Attorney General William H. Sorrell has filed suit against Bank of America for violating Vermont’s foreclosure mediation statute and Consumer Protection Act in foreclosure actions brought by the Bank against local homeowners.

According to the complaint filed in Washington Superior Court in Montpelier, Bank of America, based in Charlotte, North Carolina, (a) failed or refused to comply with mediation settlements in Vermont state court foreclosure actions to which it previously agreed; (b) billed foreclosure defendants (the homeowners) for more money than their mediation settlements provided; and (c) sent mailings to homeowners containing misrepresentations, including misrepresentations about the amount of money due the Bank and the status of the foreclosure action.

The complaint describes two such foreclosure cases involving repeated breaches by the Bank of negotiated settlements reached during the course of mediation. It asks the court to prohibit future violations of law, award appropriate monetary relief to affected Vermont homeowners, impose $10,000 in civil penalties for each violation of law, reimburse the State’s fees and costs, and grant other appropriate relief. Any Vermont homeowner who was sued in foreclosure by Bank of America and entered into a settlement of the case through mediation, but where the Bank did not comply with the terms of the settlement, is asked to contact the Attorney General’s Office at (802) 828-5507, or by email to glavely@atg.state.vt.us.
Source: Attorney General William H. Sorrell

Saturday, December 14, 2013

Tipline Investigation: Foreclosure Activists Claim Billions Stolen Using Fraudulent Records

From:  News Channel KEYT

Group alleges bogus real estate documents led to foreclosures

C.J. Ward, NewsChannel 3 Anchor, cj.ward@keyt.com
 
 
SANTA BARBARA COUNTY, Calif. - Is it possible that one of the biggest local scams of all-time is playing out right now, under our noses?


One group says it can prove it. Members claim billions of dollars have been stolen in Santa Barbara County and those who have the power to stop it are just letting it happen.
Losing your home to foreclosure is devastating beyond belief.
A group called "Save Our Homes Santa Barbara" was born from that type of  tragedy. It's purpose - to stop illegal home foreclosures.
Marina Read, who lost her home and other investment properties to foreclosure, is one of the group's founders.
In October, Read and another member of the group, Candace Jones, took their fight to the Santa Barbara County Board of Supervisors.
Jones is a former bank executive with 40 years experience. She also spent decades working as an expert for the FDIC and other government agencies uncovering bank fraud.
"We have gone on numerous occasions to ask that an audit be done of the county recorder's office to show them where the fraud is. We were always told they didn't have the funds to do so. But yet, these funds have been there." said Jones as she address the Board of Supervisors during its Oct. 15 meeting.
Jones and Read claim Santa Barbara County has collected about $750,000 over the last six years in fees under Government Code 27388. Most people have never heard of that obscure law. But, if you've ever bought or sold real estate in the county, you've probably paid the fee. It used to be $3.00, but just recently it more than tripled to $10.00. The money collected goes into the county's Real Estate Prosecution Trust Fund. As the name implies, the District Attorney's office is supposed to spend that money to stop real estate fraud.
"I think they've completely shrugged their responsibilities as far as reading the code and implementing the code," said Read during an interview with NewsChannel 3.
"Save Our Homes Santa Barbara" put together a 104-page report that it claims proves the county misspent the $750,000 meant to fight real estate fraud.
Kelly Scott, chief deputy district attorney in charge of the trust fund says the group is wrong.

"The criticisms in the report are incorrect and contain a number of misinterpretations of the law." said Scott.
Specifically, the activist group claims all the money collected for the prosecution trust fund must be spent to investigate and prosecute fraud involving only recorded documents, nothing else.
"That would be one tiny fraction of the real estate fraud that exists in California. The state legislature intended for county prosecutors to investigate and prosecute real estate crimes in general," said Scott during an interview from the D.A.'s main office in downtown Santa Barbara.
Scott, who is based out of the D.A.'s Santa Maria office, also said that ultimately every real estate fraud case is connected to recorded documents.
Read and Jones claim so many fraudulent documents have been filed at the County Recorder's office that they estimate $4.3 billion worth of real estate has been stolen from homeowners through illegal foreclosures.
They point out one title document in particular as a glaring example. It's a deed of trust for a home in Santa Barbara. It was recorded by IndyMac Federal Bank on April 15, 2013. But IndyMac went out of business in July 2008. Why would a bank official file a deed for a bank that no longer exists and five years late?
We showed the document to Kelly Scott who didn't know the answer. But, she said so far no one has filed a complaint with her office.
Jones said they discovered hundreds of questionable recorded documents.
"Out of the 505, we went in and did an audit on, I have to say that all 505 were fraudulent," said Jones.
Jones and Read also blame Santa Barbara County Clerk Recorder Joe Holland. They say Holland has the power to stop the fraud at the source before the documents are recorded. They believe if all of the documents are accurate and filed properly, fewer people would be thrown out of their homes.
"These documents are being used to foreclose on people and it's his responsibility to ensure our land title and that's what he is not doing," said Jones.
"If a document meets the basic recording requirements, we record it. We don't check for fraud, but if we do see something suspicious we'll forward it on the DA," Holland told us during an interview outside the Hall of Records in downtown Santa Barbara.
Holland said he has met with the group and read the report, but he didn't find any fraud.
"They've said well, we'd like you to conduct an audit. Well, we don't do audits. I'm not going to audit myself and I'm not even sure what they would have us audit?" said Holland.

MORE
 

NOTE DISCREPENCY IN REPORTING - Deadly Clear on MERS

From:  Deadly Clear 

COMMENT - This article, which ran today on a case verdict which occurred three years ago ignores the partial reversal of the original verdict occuring March 28, 2012.  See below the article published on Deadly Clear Friday, December 13th, 2013.


December 13, 2013

New York's U.S. Bankruptcy Court Rules MERS's Business Model Is Illegal

United States Bankruptcy Judge Robert Grossman has ruled that MERS's business practices are unlawful. He explicitly acknowledged that this ruling sets a precedent that has far-reaching implications for half of the mortgages in this country. MERS is dead. The banks are in big trouble. And all foreclosures should be stopped immediately while the legislative branch comes up with a solution.
Little did that Judge know then what we know now!! You can only imagine how illegal he would view the MERS Blur.

Verdict Overturned - March 28, 2012

2012 WL 1043690
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Ferrel L. AGARD, Appellant,
v.
SELECT PORTFOLIO SERVICING, INC. and Mortgage Electronic Registration Systems, Inc., Appellee.
Mortgage Electronic Registration Systems, Inc., Appellant,
v.
Ferrel L. Agard, Robert L. Pryor, U.S. Trustee, Select Portfolio Servicing, Inc., Appellee.
E.D. Bankr.Case No. 8–10–77338(REG). | Nos. 11–CV–1826(JS), 11–CV–2366(JS). | March 28, 2012.
Attorneys and Law Firms
George E. Bassias, Esq., Astoria, NY, Karamvir Dahiya, Esq., Dahiya Law Offices LLP, New York, NY, for Agard.
Amy E. Polowy, Esq., Steven J. Baum, P.C., Buffalo, NY, Joseph N. Froehlich, Esq., Ford Bissell & Brook LLP, New York, NY, for Select Portfolio Servicing, Inc.
Charles C. Martorana, Esq., Jessica Marie Baker, Esq., Hiscock & Barclay, LLP, Buffalo, NY, for MERS.
Robert L. Pryor, Esq., Pryor & Mandelup, LLP, Westbury, NY, for Pryor.
Alfred M. Dimino, Esq., U.S. Department of Justice, Office of the United States Trustee, Central Islip, NY, for U.S. Trustee.
Opinion

MEMORANDUM & ORDER
SEYBERT, District Judge.
*1 Pending before the Court are two appeals arising out of a Chapter 7 bankruptcy petition filed in the United States Bankruptcy Court for the Eastern District of New York by debtor Ferrel L. Agard (the “Debtor”). On October 14, 2010, Select Portfolio Servicing, Inc. (“Select”) filed a motion to terminate the automatic stay, which Bankruptcy Judge Robert E. Grossman granted on February 10, 2011, see In re Agard, 444 B.R. 231 (Bankr.E.D.N.Y.2011). On February 25, 2011, Mortgage Electronic Registration Systems, Inc. (“MERS”), an intervening party, filed a motion for reconsideration, which was denied on April 8, 2011. MERS now appeals Judge Grossman’s opinion granting Select’s motion to terminate the automatic stay and the order denying MERS’ motion for reconsideration. For the following reasons, MERS’ appeal is GRANTED, and Judge Grossman’s opinions are VACATED IN PART.


BACKGROUND
I. Factual Background
On June 9, 2006, the Debtor executed a promissory note (the “Note”) and mortgage (the “Mortgage”) secured by residential real property located in Westbury, New York (the “Property”). First Franklin, a division of National City Bank of Indiana, is the “Lender” named in both the Mortgage and the Note. The Mortgage also names the Appellant MERS, stating that “MERS is a separate entity that is acting solely as a nominee for Lender and Lender’s successors and assigns” (Mortgage at 1), and that “MERS (as nominee for Lender and Lenders’ successors and assigns) has the right: (A) to exercise any or all those rights, including, but not limited to, the right to foreclose and sell the Property; and (B) to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument” (Mortgage at 3).

On February 1, 2008, MERS executed an Assignment of Mortgage from MERS as nominee for First Franklin to U.S. Bank National Association, as Trustee for First Franklin Mortgage Loan Trust 2006–FF12, Mortgage Pass–Through Certificates, Series 2006–FF12 (“U .S. Bank”). Subsequent to the Assignment of Mortgage, the Debtor defaulted under the terms of the Mortgage and Note, and U.S. Bank commenced a foreclosure action on March 24, 2008 in New York State Supreme Court, Nassau County. The Debtor failed to answer or otherwise appear in that action, and a Judgment of Foreclosure and Sale was entered in favor of U.S. Bank on November 24, 2008.


II. The Bankruptcy Proceeding
On September 20, 2010, the Debtor filed for relief under Chapter 7 of the Bankruptcy Code. In a schedule attached to her bankruptcy petition, the Debtor listed her interest in the Property, stating that she defaulted on the Mortgage and a foreclosure sale was scheduled for September 21, 2010. On October 14, 2010, Select, as servicer for U.S. Bank, filed a motion seeking relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to foreclose on the Property.

On October 27, 2010, the Debtor filed a “limited opposition” to the motion, arguing that Select/U.S. Bank lacked standing to seek the relief requested because MERS’ nominee status did not give it authority to assign the Mortgage to U.S. Bank, so the Assignment of Mortgage was invalid. This would mean that U.S. Bank does not have a bona fide interest in the Property and, accordingly, is not a secured creditor. The issue was fully briefed, and Judge Grossman heard oral argument. Before a decision could be rendered on the motion, MERS moved to intervene in the matter because:
*2 [1] The Court’s determination of the MERS Issue directly affects the business model of MERS. Additionally, approximately 50% of all customer mortgages in the United States are held in the name of MERS, as the mortgagee of record.
[2] The Court’s determination of the MERS Issue will have significant impact on MERS as well as the mortgage industry in New York and the United States.
[3] MERS has a direct financial stake in the outcome of this contested matter, and any determination of the MERS Issue has direct impact on MERS.
(Motion to Intervene ¶¶ 12–14.) Judge Grossman granted MERS’ motion to intervene after a hearing on December 13, 2010.

After an additional round of briefing, on February 10, 2011, Judge Grossman issued an opinion granting Select’s motion (the “Stay Opinion”) and an Order terminating the automatic stay and permitting Select to continue with a foreclosure sale of the Property (the “Stay Order”). Judge Grossman held that U.S. Bank’s status as a secured creditor was already determined by the state court that issued the Judgment of Foreclosure in its favor, and, accordingly, pursuant to the doctrines of res judicata and Rooker–Feldman, that issue could not be revisited by the Bankruptcy Court. See In re Agard, 444 B.R. at 244 (“The state court already has determined that U.S. Bank is a secured creditor with standing to foreclose and this Court cannot alter that determination in order to deny U.S. Bank standing to seek relief from the automatic stay.”). “On that basis, and because [Select] ha[d] established grounds for relief from stay under Section 362(d),” Judge Grossman granted Select’s motion. See id.

Judge Grossman continued:
Because of the broad applicability of the issues raised in this case the Court believes that it is appropriate to set forth its analysis on the issue of whether [Select/U.S. Bank], absent the Judgment of Foreclosure, would have standing to bring the instant motion. Specifically MERS’s role in the ownership and transfer of real property notes and mortgages is at issue in dozens of cases before this Court. As a result, the Court has deferred ruling on motions for relief from stay where the movants’ standing may be affected by MERS’s participation in the transfer of real property notes and mortgages. In the instant case, the issues were resolved under the Rooker–Feldman doctrine and the application of res judicata. Most, if not all, of the remainder of the “MERS cases” before the Court cannot be resolved on the same basis. For that reason, and because MERS has intervened in this proceeding arguing that the validity of MERS[’s] assignments directly affects its business model and will have significant impact on the national mortgage industry, this Court will give a reasoned opinion as to [Select/U.S. Bank]’s standing to seek relief from the stay and how that standing is affected by the fact that U.S. Bank acquired its rights in the Mortgage by way of assignment from MERS.
*3 Id. at 244–45. Judge Grossman then made the following findings: (1) U.S. Bank is not the holder of the Note, see id. at 246 (“[T]he Court finds that the Assignment of the Mortgage is not sufficient to establish an effective assignment of the Note.”); (2) the Mortgage, by naming MERS as a “nominee,” did not bestow authority upon MERS to assign the Mortgage, see id. at 252; (3) neither MERS’ membership rules nor New York agency laws conferred upon MERS the authority to assign the Mortgage, see id. at 252–54; and (4) accordingly, U.S. Bank is not the holder of the Mortgage and, absent the Judgment of Foreclosure, would not have had standing as a secured creditor, see id. The court concluded stating that “in all future cases which involve MERS, the moving party must show that it validly holds both the mortgage and the underlying note in order to prove standing.” Id. at 254.

On February 25, 2011, MERS filed a motion to reconsider Judge Grossman’s decision granting the stay. Judge Grossman heard oral argument on March 30, 2011 and on April 8, 2011 issued an order denying the motion (the “Reconsideration Order”).


III. The Pending Appeals
On February 22, 2011, the Debtor filed a Notice of Appeal from the Stay Order. On March 8, 2011, MERS filed a notice of cross-appeal, and on April 8, 2011, MERS filed a notice of another appeal of the Reconsideration Order. Debtor withdrew her appeal on April 21, 2011, and on November 16, 2011, the Court consolidated the remaining appeals-MERS’ cross-appeal of the Stay Order and MERS’ appeal of the Reconsideration Order. This consolidated appeal is presently pending before the Court. MERS’ filed its brief on December 16, 2011. No party filed a brief in opposition.


DISCUSSION
MERS argues that the Stay Order (which incorporates by reference the Stay Opinion detailing the court’s rationale) must be vacated in part to the extent that it goes beyond the application of the Rooker–Feldman doctrine and res judicata to terminate the stay because: (1) the Bankruptcy Court lacked jurisdiction under the “case or controversy” requirement of Article III of the United States Constitution to address the alleged issues arising out of MERS’ participation in the transfer; (2) even if the Bankruptcy Court had jurisdiction, it was an error of law for the Bankruptcy Court to reach these issues; and (3) even if the issues were properly before the Bankruptcy Court, there were significant errors of law and fact in the court’s analysis which warrant vacatur.1

1

The Court notes that MERS is not seeking any relief with respect to the Reconsideration Order. As such, the Court finds that any issues MERS may have had with such order are considered waived and will not be addressed in this Memorandum and Order. See In re Emanuel, Nos. 11–BK–2272, 11–BK–2716, 2012 WL 386433, at *2 (2d Cir. Feb. 8, 2012) (“[Appellant] abandoned any challenge to the district court’s denial of his motion for reconsideration by failing to raise any such challenge in his appellate brief.” (citing Hutchinson v. Deutsche Bank Sec. Inc., 647 F.3d 479, 491 n. 5 (2d Cir.2011)); Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).



I. Standard of Review on Bankruptcy Appeal
Federal district courts have jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy judges. FED. R. BANKR. P. 8013. The Bankruptcy Court’s “[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.” Id.; see also Momentum Mfg. Corp. v. Emp. Creditors Comm. (In re Momentum Mfg. Corp.), 25 F.3d 1132, 1136 (2d Cir.1994). The Bankruptcy Court’s legal conclusions, however, are reviewed de novo. See Momentum Mfg. Co., 25 F.3d at 1136.


II. “Case or Controversy” Requirement
*4 “[T]he exercise of federal jurisdiction under [Article III of] the Constitution ‘depends on the existence of a case or controversy, and a federal court lacks the power to render advisory opinions.’ “ U.S. v. Leon, 203 F.3d 162, 164 (2d Cir.2000) (quoting U.S. Nat’l Bank v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)); see also Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (“Article III denies federal courts the power to decide questions that cannot affect the rights of litigants in the case before them and confines them to resolving real and substantial controversies admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.”).2 The Supreme Court has emphasized that “[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’ t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (internal quotation marks and citation omitted).

2

Bankruptcy courts derive their jurisdiction from Article III courts, and like these Article III courts, bankruptcy courts cannot issue advisory opinions.” In re Nunez, Nos. 98–CV–7077, 98–CV–7078, 2000 WL 655983, at *6 (E.D.N.Y. Mar. 17, 2000) (citations omitted); accord N.J. Dep’t of Envtl. Prot. & Energy v. Heldor Indus., Inc., 989 F.2d 702, 707 n. 8 (3d Cir.1993).


MERS argues that to the extent that the Stay Opinion addresses and attempts to resolve issues beyond the application of Rooker–Feldman and res judicata, it is an improper advisory opinion and should be vacated. The Court agrees. In holding that Rooker–Feldman (or in the alternative, res judicata) barred revisiting the issue of Select/U.S. Bank’s standing as a secured creditor, the Bankruptcy Court recognized that it lacked subject matter jurisdiction over the dispute, see Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 83 (2d Cir.2005) (recognizing that the Rooker–Feldman doctrine “goes to subject-matter jurisdiction”), thus the issue of whether MERS had authority to assign the Mortgage was no longer before the Bankruptcy Court. In other words, there was no longer a live case or controversy. Judge Grossman’s discussion and analysis addressed a now-hypothetical issue: whether Select/U.S. Bank would have had standing absent the Judgment of Foreclosure, see In re Agard, 444 B.R. at 245. And Judge Grossman’s conclusion-that MERS did not have authority to assign the Mortgage-had no effect on the parties or the bankruptcy.

Accordingly, this portion of the Stay Order constitutes an unconstitutional advisory opinion and must be vacated. See Unalachtigo Band of the Nanticoke Lenni Lenape Nation v. Corzine, 606 F.3d 126 (3d Cir.2010) (vacating in part a district court’s opinion that addressed an intervenor’s motion to dismiss after sua sponte dismissing the complaint for lack of standing); Heldor, 989 F.2d at 709 (vacating an order entered by the bankruptcy court after the issue was mooted by the withdrawal of the objections to the motion); In re Nunez, 2000 WL 655983, at *7 (vacating a decision of the bankruptcy court addressing a standing issue raised by the court sua sponte after all motions had been granted or withdrawn and the underlying bankruptcies terminated).


CONCLUSION
*5 For the foregoing reasons, the Court GRANTS MERS’ appeal and VACATES the portion of the Stay Decision and Order addressing the hypothetical question of whether Select/U.S. Bank would have had standing absent the Judgment of Foreclosure.

The Clerk of the Court is directed to mark both actions in this consolidated appeal CLOSED.

SO ORDERED.


 There is also a PDF related to this which is not posted here.  Email us and we will send a copy. 



Wednesday, December 11, 2013

WELLS FARGO’S “NOTE ENDORSEMENT TEAM” DOCUMENTATION FORM – EXHIBIT

From:  Deadly Clear 

Click to visit the original post

Attached is an Exhibit that was submitted in a NY bankruptcy case for a trial which settled. In newer foreclosures, there are likely to be robo-redux endorsements fabricated per specs directed by procedures and processes set in place by the entities dealing with loan documentation failures and gaps. These entities direct the lawyers and the Loan Documentation or Note Endorsement units or teams.

From the same people who brought you "pick-a-pay" ...

Tuesday, December 10, 2013

Amend the Fed: We Need a Central Bank that Serves Main Street

From:  Oped News 

by Ellen Brown 

Fed under the microscope by sanders.senate.gov

December 23rd marks the 100th anniversary of the Federal Reserve. Dissatisfaction with its track record has prompted calls to audit the Fed and end the Fed. At the least, Congress needs to amend the Fed, modifying the Federal Reserve Act to give the central bank the tools necessary to carry out its mandates.

The Federal Reserve is the only central bank with a dual mandate. It is charged not only with maintaining low, stable inflation but with promoting maximum sustainable employment. Yet unemployment remains stubbornly high, despite four years of radical tinkering with interest rates and quantitative easing (creating money on the Fed's books). After pushing interest rates as low as they can go, the Fed has admitted that it has run out of tools.
At an IMF conference on November 8, 2013, former Treasury Secretary Larry Summers suggested that since near-zero interest rates were not adequately promoting people to borrow and spend, it might now be necessary to set interest at below zero. This idea was lauded and expanded upon by other ivory-tower inside-the-box thinkers, including Paul Krugman.
Negative interest would mean that banks would charge the depositor for holding his deposits rather than paying interest on them. Runs on the banks would no doubt follow, but the pundits have a solution for that: move to a cashless society, in which all money would be electronic. "This would make it impossible to hoard cash outside the bank," wrote Danny Vinik in Business Insider, "allowing the Fed to cut interest rates to below zero, spurring people to spend more." He concluded:
". . . Summers' speech is a reminder to all liberals that he is a brilliant economist who grasps the long-term issues of monetary policy and would likely have made an exemplary Fed chair."  MORE

Saturday, December 7, 2013

Amend the Federal Reserve: We Need a Central Bank that Serves Main Street


by Ellen Brown 

Dollar
December 23rd marks the 100th anniversary of the Federal Reserve. Dissatisfaction with its track record has prompted calls to audit the Fed and end the Fed.  At the least, Congress needs to amend the Fed, modifying the Federal Reserve Act to give the central bank the tools necessary to carry out its mandates.

The Federal Reserve is the only central bank with a dual mandate. It is charged not only with maintaining low, stable inflation but with promoting maximum sustainable employment. Yet unemployment remains stubbornly high, despite four years of radical tinkering with interest rates and quantitative easing (creating money on the Fed’s books). After pushing interest rates as low as they can go, the Fed has admitted that it has run out of tools.
At an IMF conference on November 8, 2013, former Treasury Secretary Larry Summers suggested that since near-zero interest rates were not adequately promoting people to borrow and spend, it might now be necessary to set interest at below zero. This idea was lauded and expanded upon by other ivory-tower inside-the-box thinkers, including Paul Krugman.
Negative interest would mean that banks would charge the depositor for holding his deposits rather than paying interest on them. Runs on the banks would no doubt follow, but the pundits have a solution for that: move to a cashless society, in which all money would be electronic. “This would make it impossible to hoard cash outside the bank,” wrote Danny Vinik in Business Insider, “allowing the Fed to cut interest rates to below zero, spurring people to spend more.” He concluded:
. . . Summers’ speech is a reminder to all liberals that he is a brilliant economist who grasps the long-term issues of monetary policy and would likely have made an exemplary Fed chair.
Maybe; but to ordinary mortals living in the less rarefied atmosphere of the real world, the proposal to impose negative interest rates looks either inane or like the next giant step toward the totalitarian New World Order. Business Week quotes Douglas Holtz-Eakin, a former director of the Congressional Budget Office: “We’ve had four years of extraordinarily loose monetary policy without satisfactory results, and the only thing they come up with is we need more?” MORE

Small Town Judge – Major Ethics Issues – Plots Against Homeowner with Bank’s Attorney

From:  Deadly Clear 

By Sydney Sullivan

wickedWitchHave you ever felt that the judge in your case was not treating you or your attorney fairly, especially when the facts of bankster fraud were clear? Or when you have shown the judge a fabricated assignment of mortgage and an obviously fake endorsement on your so-called note? When you walk into the courtroom does your stomach sink and you imagine you hear a faint theme from the wicked witch of the west in the Wizard of Oz?
In a small Kentucky county, a homeowner just like you encountered the unthinkable – proof that his judge was prejudice and even worse – the judge was assisting the opposing counsel for the bank in a plot against him.  
KyhenryIt is one thing for a judge to own stock in the company that you are opposing and fails to recuse himself from your case; but when a judge actually conspires with the opposition to your detriment and eventual loss – well, reprehensible doesn’t quite cover it.
What makes this impropriety so particularly heinous is the blatant stupidity of how the action occurred. In small towns across the country many times judges will sit on the bench in several counties. In this case, the judge was on the bench in a neighboring county when she had ex parte communication with the opposing counsel plotting against the homeowner and the conversation was caught on video tape still running in the court room!  MORE

Friday, November 29, 2013

Three State Attorneys General In Serious Investigations Against Mortgage Fraud

From:  LaRochePac

In separate actions, investigations were announced in recent days against Bank of America, Bank of New York Mellon and Deutsche Bank, for violations in the mortgage securitization fraud. In what could be a significant development, the Attorneys General of New York, Eric Schneiderman, has teamed up with his counterpart in Delaware, Joseph "Beau" Biden III. Between the two states, they account for 100% of the "trust law" (New York 80%) applicable to banks, who acted as "trustees" in the multibillion-dollar mortgage securitization theft. The two, acting together, have requested documents from Bank of New York Mellon and Deutsche Bank. Separately, Schneiderman has expanded his probe to include Bank of America. 

These means a total of three states' Attorneys General, those of New York, California and Delaware, are conducting parallel investigations into mortgage fraud by Wall Street. 

The two AGs are looking into the paper trail when the mortgages were transferred under the "securitization" process. The rules for property transfer under "trust" law are detailed and explicit; a failure under any aspect of the transfer process would result in the invalidation of the entire "collateralized" security, leaving the banks on the hook for the billions they thought they "sold." As described by Georgetown University bankruptcy expert Adam Levitin, in testimony to subcommittee of the House Financial Services Committee, "If mortgages were not properly transferred in the securitization process, then mortgage-backed securities would in fact not be backed by any mortgages whatsoever, [and] could cloud title to nearly every property in the United States." It would also raise the question of the legality of the resulting millions of foreclosures on American homeowners, since the banks cannot prove "ownership" of the foreclosed property. 

In reality, the entire process needs to be "frozen;" the derivatives declared null and void; the mortgages are examined in their original condition, to keep people in their houses, while we find out who owns what. Glass-Steagall would help this process.

Monday, November 25, 2013

Derivatives are financial weapons of mass destruction… potentially lethal. — Warren Buffet


How to Search the SEC for a Securitized Trust

SEC webWhen a unknown bank named as a Trustee for a securitized trust (usually Deutsche Bank, Bank of NY Mellon, US Bank National, etc.) sends you a letter stating you owe them money and you are in default, the first thing you should do is contact a local title company and have them look for an Assignment of Mortgage under your address or tax key number (it won’t likely be under your name).  Chances are the Assignment of Mortgage is fabricated and void; however, this is the breeder document that allows the banksters to foreclose.

The following information will assist you in searching the Securities and Exchange Commission (SEC) for the alleged trust.   

Once you have the name of the trust and a copy of the Assignment (if any), the next move is to research the securitized trust on the Securities and Exchange Commission (SEC) website. Here is an example of an Assignment of Mortgage with Deutsche Bank National Trust Company, as Trustee of the IndyMac INDX Mortgage Trust 2007-FLX3, Mortgage Pass-Through Series 2007-FLX3 under the Pooling and Servicing Agreement Dated April 1, 2007. This assignment was made 3 years after the trust closed.  MORE