Category: Attorneys
For America’s hard-hit homeowners, little relief from settlement | Reuters
http://www.reuters.com/article/2012/02/10/us-mortgage-settlement-homeowners-idUSTRE81907T20120210
For America’s hard-hit homeowners, little relief from settlement
Houses under construction are seen in Phoenix, Arizona, August 23, 2011. Credit: Reuters/Joshua Lott
NEW YORK | Fri Feb 10, 2012 12:15am EST
NEW YORK (Reuters) – Crystal Morello’s family pleaded for months with their lender for a cheaper mortgage on their family home in Belleville, Michigan. But time ran out last summer, and they left before they were evicted.
"The bank was reassuring us that it was helping us out," says Morello, 26. "While we were getting a loan modification in one department, we were getting foreclosed in another."
Nothing will get Morello back to the house she lived in since she was three, certainly not the small part her family might receive of a record $25 billion settlement announced Thursday between the government and five big U.S. banks accused of abusive mortgage practices.
Checks of up to $2,000 each are expected to reach 750,000 households who lost homes through the foreclosure process between 2008 and 2011.
As part of the deal, the banks also agreed to cut the amount of principal owed by homeowners and provide lower-interest rate loans to the tune of $17 billion for borrowers who are behind on their payments and who are at risk of foreclosure.
A further $3 billion is on tap to help homeowners who are current on their mortgages but are unable to refinance because they owe more than their homes are worth.
Critics of Thursday’s agreement, like Margaret Becker, director of the homeowner defense project at Staten Island Legal Services in New York, say the deal is "paltry", at best.
"I don’t think it’s going to have a lot of meaning for consumers," she says. The $25 billion settlement "is a miniscule amount of money and doesn’t begin to approach the banks’ legal liability for the fraud."
New York state alone has 250,000 mortgages that are in foreclosure or more than 60 days late, Becker noted.
An estimated 10.7 million U.S. borrowers, or 22.1 percent, of all borrowers are ‘underwater’, according to Corelogic, a company that tracks real estate data.
They are believed to owe $700 billion more than their houses are worth as a result of the crash in U.S. housing prices.
Thursday’s agreement paves the way for the process of deciding which homeowners qualify for the $25 billion and many hurdles remain.
Borrowers have to be behind on their payments, and, in most cases, the loans have to be owned by the banks. Homeowners with mortgages held by state-run U.S. housing finance giants Fannie Mae and Freddie Mac are not eligible.
Even those who stand to benefit from the settlement aren’t convinced it will work. Some like Roger Duke, 41, plan to remain in the courts. "We’ve given up altogether on modifications," says Duke, 41, whose Wellington, Florida home is in foreclosure. "We’ve tried everything the government has put out."
When Duke, a sales manager at an industrial firm, purchased his home in 2005, he never imagined its value would plummet to $230,000 from $420,000. But Duke’s problems began almost immediately when he tried to refinance an adjustable-rate mortgage. One battle lead to another as the original lender fell into bankruptcy and the loan papers went missing.
"Our case is a perfect example of what is wrong with any kind of settlement because people need to go to jail for something like this," he says. "It’s been a nightmare, but we’re in it for the long haul."
In the meantime, people like Kathleen Dalton wait, worry and hope their banks will also settle with the government.
Dalton, who once owned her own insurance business, has spent the last three years battling for a permanent loan modification for her West Palm Beach, Florida condominium, which has dropped in value to $50,000 from $100,000.
Most recently, the lender sent her an offer for a temporary modification at a higher rate than her original mortgage with no terms nor explanation.
"I just want to save my home," says Dalton, 61. "I hope that’s going to happen, but I don’t know because I’ve had my hopes go through the roof and then let down so many times that it’s affected me physically."
For borrowers like Morello, the settlement is too little, too late. While it’s up to her parents, her family likely would use any money they get to repair the roof of the 1940s bungalow they purchased in Dearborn Heights, Michigan for $10,000 by pooling cash. Morello now lives there with her two-year-old daughter, her parents, a cousin, a dog and a cat.
"I’ll never get a mortgage again for any reason," Morello says.
(Additional reporting by Margaret Chadbourn; Editing by Richard Pullin)
For America’s hard-hit homeowners, little relief from settlement | Reuters
Special report: Legal woes mount for a foreclosure kingpin | Reuters
http://www.reuters.com/article/2010/12/06/us-foreclosures-lps-idUSTRE6B547N20101206
Lest We Not Forget…
Special report: Legal woes mount for a foreclosure kingpin
Fall leaves blow past an empty home (C) seen in a well kept neighborhood where the house is listed on the auction block during the Wayne County tax foreclosures auction of almost 9,000 properties in Detroit, Michigan, October 22, 2009. Credit: Reuters/Rebecca Cook
By Scot J. Paltrow
JACKSONVILLE, Florida | Mon Dec 6, 2010 2:10pm EST
JACKSONVILLE, Florida (Reuters) – Lender Processing Services is riding the waves of foreclosures sweeping the United States, but in late October its CEO, Jeff Carbiener, found himself needing to reassure investors in the $2.8 billion company.
Although profits were rolling in, LPS’s stock had taken a hit in the wake of revelations that mortgage companies across the country had filed fraudulent documents in foreclosures cases. Earlier in the year, the company, which handles more than half of the nation’s foreclosures, had disclosed that it was under federal criminal investigation and admitted that employees at a small subsidiary had falsely signed foreclosure documents.
Still, Carbiener told the Wall Street analysts in an October 29 conference call that LPS’s legal concerns were overblown, and the stock has jumped 13 percent since its close the day before the call.
But a Reuters investigation shows that LPS’s legal woes are more serious than he let on. Public records reveal that the company’s LPS Default Solutions unit produced documents of dubious authenticity in far larger quantities than it has disclosed, and over a much longer timespan.
Questionable signing and notarization practices weren’t limited to its subsidiary, called DocX, but occurred in at least one of LPS’s own offices, mortgage assignments filed in county recorders’ offices show. And rather than halt such practices after the federal investigation got underway, the company shifted the signing to firms with which it has close business ties. LPS provided personnel to work in the new signing operations, according to information from an LPS spokeswoman and court records including an October 21 ruling by a judge in Brooklyn, New York. Records in county recorders’ offices, and in the judge’s opinion, show that "robosigning" and preparation of apparently false documents went on at these sites on a large scale.
In one instance, it helped set up a massive signing operation at the nearby office of a major client, a spokeswoman for the client, American Home Mortgage Servicing, confirmed. LPS-hired notaries who worked there said in interviews that troves of documents were improperly handled. They said that about 200 affidavits per day were robosigned during the two months the two notaries remained there.
A spokeswoman for LPS confirmed to Reuters that it had helped other firms establish operations that performed the same function. LPS spokeswoman Michelle Kersch didn’t specify which firms. But beginning early in 2010, county recorders’ records show, signing shifted also to law firms under contract with LPS.
Interviews with key players and court records also show that pending investigations and lawsuits pose a bigger threat to the company than Carbiener let on.
The criminal investigation in Jacksonville by federal prosecutors and the Federal Bureau of Investigation is intensifying. The same goes for a separate inquiry by the Florida attorney general’s office. Individuals with direct knowledge of the federal inquiry said that prosecutors have impaneled a grand jury, begun calling witnesses and subpoenaed records from LPS.
The company confirmed to Reuters that it has hired Paul McNulty, former deputy U.S. attorney general in the George W. Bush administration, to represent it in the investigation. A spokeswoman for the U.S. Attorney’s office declined to comment on the probe.
The U.S. Comptroller of the Currency’s office, which is responsible for supervising national banks, also announced in November that it had teamed up with the Federal Reserve to conduct an on-site examination of LPS.
Meanwhile, the threats from four class action lawsuits filed in federal courts appear to be greater than the company has indicated, especially one filed in Mississippi. In a highly unusual move, a unit of the U.S. Justice Department has joined that suit as a plaintiff. The lawsuit alleges that LPS extracted many millions of dollars in kickbacks from law firms through an illegal fee-sharing arrangement, in exchange for doling out lucrative foreclosure work to them.
The lawsuit also charges that LPS illegally practices law and routinely misleads homeowners and federal bankruptcy judges. Carbiener has said there is little reason to worry about the Mississippi suit because the company already prevailed in a federal lawsuit in Texas that had made nearly identical accusations. But court records in that case show that the lawsuit was dropped without any ruling on the merits of the allegations.
Copies of LPS internal documents obtained by Reuters and testimony in lawsuits shed new light on the company’s unusual dealings with its vast network of law firms. LPS relentlessly pressed them for speed. The result was almost instant filing of foreclosure documents, mostly prepared by clerical workers, not lawyers, according to court records, including deposition testimony by LPS officials. Several judicial opinions from around the country and evidence from investigations in Florida show that these documents often were riddled with inaccurate information about the amount homeowners owed, and were signed and notarized en masse without anyone at the firms checking the information in them.
Under LPS’s system, law firms that were slower, often because their lawyers carefully prepared and reviewed court documents before filing them, were effectively punished, according to deposition testimony and other sources. The computer automatically assigned bad ratings to these firms, and the flow of work assignments to them dried up.
A BOOMING BUSINESS
Few firms benefited more from the collapse of the U.S. housing boom than LPS. Spun off as an independent company in 2008, the company has seen its profits, with big help from its mortgage default services business, reach $232 million for the first nine months of 2010. That is a nearly 15 percent increase from the same period in 2009. Its revenue last year was $2.4 billion, up from $1.8 billion in 2008.
And business continues to surge. Carbiener told analysts on the October 29 call that "we continue to gain market share across all key business segments." In a November 23 report prepared for investors and clients, LPS said banks are pushing to foreclose on properties as rapidly as possible, driving "the foreclosure inventory rate to all-time highs." It said that at the end of October, the number of properties going into foreclosure is "7.4 times historical averages and rising."
The banks’ push to evict homeowners faster and in bigger numbers than ever before makes LPS’s services even more crucial to them. LPS’s success is built on its advanced, super-automated system that is highly efficient, low-cost, and speeds foreclosures through to completion. The "LPS Desktop" starts foreclosure actions, assigns work to law firms and supervises the cases to conclusion with almost no intervention by humans. (LPS says foreclosure actions are started by its clients, the loan servicers. But copies of agreements with servicers obtained by Reuters show that LPS has direct access to the banks’ and other servicers’ computer systems, and LPS detects defaults and initiates foreclosures based on parameters given to it by the banks.)
Few loan servicers could resist handing over key tasks to the company. Today, LPS boasts a client list that includes 14 of the 15 biggest loan servicers, with household names such as Wells Fargo and JPMorgan Chase — its two biggest clients, according to LPS’s most recent 10K filing with the Securities and Exchange Commission. The company has said that Bank of America joined as a client earlier this year. LPS says that all 50 of the nation’s largest banks use at least some of its services.
In essence, LPS is a giant electronic butler for the big banks and other companies in the industry. It attends to routine tasks the loan servicers prefer not to do themselves. These include tracking mortgage payments, calculating amounts owed to investors who purchased bundles of mortgages, ensuring that property taxes and insurance get paid — and automatically filing foreclosure actions when homeowners go into default.
The pending investigations and lawsuits, however, are focusing on whether LPS, in its zeal to serve its clients, broke the rules, in part by replacing missing bank documents with fictitious ones to make foreclosure cases go through.
SIGNATURE TROUBLE
The first sign of legal problems for LPS emerged earlier this year, when the company disclosed that federal prosecutors in Florida had opened a criminal investigation into apparently forged signatures on foreclosure documents prepared by DocX, the shuttered subsidiary located in a small office park in Alpharetta, Georgia.
Fidelity National Financial, LPS’s former parent, had bought DocX in 2005. The unit soon became a high-speed mill, churning out mortgage assignments — many of which are now known to be of doubtful validity — on behalf of banks and investor trusts, helping them to foreclose on homeowners.
Mortgage assignments are documents transferring ownership, usually from the original lenders to trusts owned by investors who bought securitized packages of mortgages. Loan servicers typically file foreclosure actions on behalf of the trusts when any of their mortgages go into default. But cases popping up all over the country show that the original lenders never handed over ownership of mortgages to the trusts. Assignments establishing ownership of a mortgage are required as evidence in foreclosure cases.
DocX turned out tens of thousands of newly-minted mortgage assignments, purporting to show transfers of ownership long after the mortgages should have been handed over to the trusts, according to the standard provisions in trust agreements.
Thousands of these bore the signature of DocX employee Linda Green. The signatures didn’t look alike, however, and LPS eventually confirmed that multiple DocX employees had signed her name. Some of the assignments stood out because they listed the new owner of the mortgages as "bogus assignee" or "bad bene."
LPS spokeswoman Michelle Kersch said "bogus assignee" and "bad bene" were simply standard placeholders on document templates which the employees inadvertently had neglected to fill in with the proper names.
In his October 29 conference call with analysts, Carbiener said that when the company discovered the DocX wrongdoing in December 2009, it immediately stopped it and soon shut DocX down. But it turns out that DocX continued operating much longer than LPS originally had acknowledged. In a written response last week to questions from Reuters, LPS’s Kersch confirmed that DocX actually wasn’t closed until August 2010. She said: "The last document signed by DocX was on May 14, 2010." But she said no improper signing had occurred there since 2009.
DUBIOUS DOCUMENTS
Hundreds of public records examined by Reuters show that production of suspect mortgage assignments was not limited to DocX.
The records indicate that employees in one of LPS’s own offices, in Mendota Heights, Minnesota, signed and notarized large numbers of documents which for multiple reasons appear invalid. Records filed with county recorders’ offices show that the Minnesota office continued to turn out these documents at least through the end of January 2010.
Dozens of assignments were signed by LPS Minnesota office employees who listed themselves as corporate officers of banks and other loan servicers, a sampling of public records from counties in five states shows. As at DocX, the assignments were signed years after the mortgages should have been transferred to the investment trusts.
The signature of one of these LPS employees, Liquenda Allotey, appears on thousands of mortgage assignments. Homeowners’ lawyers and at least one judge — federal bankruptcy judge Joel B. Rosenthal in Massachusetts — have noted that Allotey’s signature is a simple zigzag line, raising questions about whether other individuals may have signed his name. Titles listed below the signature identify him variously as "vice president" or "attorney in fact" for at least 13 banks and mortgage companies.
LPS spokeswoman Kersch said Allotey signed all of the documents himself, and said all mortgage assignments prepared in the Minnesota office "were executed under a lawful grant of authority." She didn’t spell out, however, how such authority was given.
In any event, two other aspects of many mortgage assignments signed by Minnesota employees raise strong doubts about the documents’ legitimacy.
State laws, backed up by court decisions, require that mortgage investment trusts and others filing to foreclose on houses possess a valid mortgage assignment at the time they file for foreclosure. If it doesn’t, the laws require that the case be dismissed.
An examination of county recorders’ records turned up dozens of mortgage assignments signed and notarized by the Minnesota office weeks or months after a foreclosure case had been filed. Records show that even though invalid, the belated mortgage assignments often enabled foreclosure cases to sail through.
April Charney, an attorney who represents homeowners at Jacksonville Area Legal Aid, said in a Reuters interview that in most instances homeowners can’t afford lawyers and don’t challenge the foreclosures.
In many states, judges often approve the foreclosures without carefully examining the documents, she said. And at least until recently, when widespread questions were raised about the legitimacy of mortgage documents, judges routinely accepted belated mortgage assignments — even in cases contested by the homeowners, she said.
Equally difficult to explain are mortgage assignments signed by LPS Minnesota employees purporting to be officers of lenders that no longer existed. For example, in January 2010, two Minnesota employees jointly signed one as officers of Encore Credit Corp., defunct since 2008.
On other occasions, LPS employees signed as authorized officers of American Brokers Conduit, well after the subprime lender had been liquidated in bankruptcy. And in many instances they signed as officers of Sand Canyon Corp. In a March 18, 2009 affidavit, Sand Canyon’s president, Dale M. Sugimoto, said the company had completely exited the mortgage business in 2008 and had no mortgages to assign.
In written answers to questions, LPS spokeswoman Kersch didn’t respond directly to questions about the employees signing mortgage assignments after the foreclosures had been filed, or about signing on behalf of defunct companies. Instead, she said that the LPS employees signed mortgage assignments because lawyers who had filed foreclosure cases asked them to. She said the lawyers "decide when and if an assignment of mortgage is required."
Shortly after the federal investigation was launched in December 2009, LPS began moving to curtail document-signing activities at the company itself. LPS says that the Minnesota office stopped signing mortgage assignments at the end of January 2010, and public records appear to confirm that. Carbiener said during the analysts meeting that LPS has now ended all signing of mortgage assignments and affidavits at the company.
Without someone to draw up replacement documents, though, LPS’s clients faced potential hardship, because so many mortgages were never assigned by lenders, as required, in the first place. Without these documents, thousands of foreclosures all over the country would come to a halt.
Reuters has learned that rather than stamping out the practice, LPS in December 2009 began transferring signing operations out of its own offices and into those of firms it has close relationships with. Kersch confirmed that LPS sent personnel to work "at client locations to assist clients during this period."
For example, LPS arranged through a local employment service to hire about a dozen notaries, sending them to work at a new signing operation set up in the Jacksonville office of American Home Mortgage Servicing, one of LPS’s biggest clients.
Records from county recorders’ offices show that at least as recently as October, American Home Mortgage Servicing employees signed exactly the same type of questionable mortgages assignments that LPS staffers at DocX and in Minnesota had signed. These included assignments done on behalf of defunct companies like American Brokers Conduit, and after foreclosure actions already had been filed. Reuters obtained a partial list of the names of the LPS-hired notaries. Copies of mortgage assignments available publicly show that these notaries notarized many of these assignments, including ones signed on behalf of defunct companies.
In interviews, two of the notaries, who asked that they not be identified, said the American Home Mortgage Servicing office also set up a "robosigning" operation for affidavits, another type of document required in foreclosure cases. The employees who signed the affidavits were swearing that they had verified the facts listed in them, such as the specific amounts owed by homeowners.
But the two notaries, who said they were dismissed after raising questions with supervisors about the practices, said that each morning about a half-dozen American Home Mortgage Servicing employees in about an hour would sign some 200 affidavits received via LPS’s computer system, without reading them, let alone verifying the facts they contained. "In that time, come on, you have not verified figures in 200 documents. That’s impossible," one of the notaries said.
Philippa Brown, spokeswoman for American Home Mortgage Servicing, said in an e-mailed statement that "We recently had independent audits conducted on our processes and it was found that at no time was AHMSI (American Home Mortgage Servicing Inc.) ‘robosigning’." She confirmed that the company had used DocX until December 2009, and then "contracted with LPS" to provide it with notaries "in connection with execution of affidavits and other documents" in American Home Mortgage Servicing’s office. Concerning assignments the company signed for defunct lenders, Brown said American Home Mortgage Servicing "obtains authorization from the previous parties," but did not explain how.
LPS acknowledged that it had sent notaries to several companies to help them set up signing operations. Kersch said: "When LPS Default Solutions group transitioned away from signing documents on behalf of its customers, in some cases it employed notaries who worked on-site at client locations to assist clients during this period." The spokeswoman confirmed that LPS provided training at these sites, but said it was only "technical" training on using the LPS Desktop system.
TROLLING FOR CASES
It remains unclear whether LPS faces more legal risks because of its document-signing operations or because of its odd arrangement with the lawyers assigned to file foreclosure actions.
Reuters has obtained new details of how the relationship worked from copies of the "network agreements" the law firms sign with LPS, among other sources. Interviews and records from court cases show that this system often worked to the detriment of homeowners struggling to keep their homes.
LPS says that clients are the ones who pick law firms to represent them in foreclosure cases. But copies of its agreements with clients reviewed by Reuters state that the company’s clients sign up to use LPS’s network of lawyer. The agreements and depositions from lawsuits show that when a homeowner goes into default, the LPS system automatically selects a law firm in its network, sometimes using criteria set by a client, and transmits an offer of work that pops up on the law firm’s LPS Desktop screen.
The firm has no more than a couple of hours to accept the job. And if it does, it immediately agrees to pay an up-front fee to LPS. The law firms also pay LPS a monthly fee for use of the LPS Desktop system.
The company denies that it charges fees to lawyers in exchange for assignments of work. Kersch said the company charges fees strictly for the use of LPS’s computer system. Carbiener on October 29 said: "Our services are nonlegal, and are similar to any other operational cost of a law firm such as the licensing costs they pay for word-processing software or accounting software."
But in a lawsuit deposition on January 13, 2010, Christian Hymer, an LPS first vice president, testified that the company often signs up the law firms that are part of its network. In addition, until recently, lawyers signed work agreements only with LPS, not with the loan servicers. Kersch said that currently lawyers are required to sign separate agreements both with LPS and the servicers.
Laws in nearly all states forbid lawyers to share legal fees with nonlawyers. The laws are intended to prevent kickbacks for funneling legal work to an attorney, the cost of which would be passed on to unsuspecting clients or, as in foreclosure cases, billed to homeowners.
LPS isn’t a law firm. The Mississippi class action suit alleges that LPS is a nonlawyer middleman between the servicers (acting on behalf of trusts that own the mortgages) and the lawyers. It alleges that the company illegally decides which law firms get to file foreclosure cases, and makes decisions about what they file.
RED, YELLOW, GREEN
Interviews, deposition transcripts and LPS’s own records underline that the company keeps its clients happy and maximizes its own fee income by whipping law firms to gallop cases through the courts.
The law firms are on a stopwatch: Kersch confirmed that the LPS Desktop system automatically times how long each firm takes to complete a task. It assigns firms that turn out work the fastest a "green" rating; slower ones "yellow" and "red" for those that take the longest.
Court records show that green ratings go to firms that jump on offered assignments from their LPS computer screens and almost instantly turn out ready-to-file court pleadings, often using teams of low-skilled clerical workers with little oversight from the lawyers. Copies of company newsletters from shortly before LPS was spun off show that the company each year gave awards to the law firms that were consistently the fastest.
Firms that move more slowly were slapped with "red" designations. For them, work offers dried up.
LPS denies that the rating system is used to punish slower firms. Kersch said the ratings are generated so that law firms can compare their speed and efficiency with an average calculated for a wide group of firms.
LEGAL AFFAIRS
The term "robosigners" was coined to describe the low-level clerical workers who signed many thousands of affidavits for foreclosure cases, swearing to the truth of facts they had never checked. But it turns out that the professionals at these firms — the attorneys who have strict legal and ethical obligations to file truthful documents in court — have carried out similar activities on a large scale. They allowed others to sign their names to multiple types of court pleadings they had never read or bothered to check, involving many types of documents.
In an April 2009 court decision, Diane Weiss Sigmund, a federal bankruptcy judge in Philadelphia, specifically faulted lawyers whose firm filed LPS-transmitted documents in court using clerical workers to sign the name of a lawyer who hadn’t looked at them.
In that case, it turned out that, contrary to the documents supplied via the LPS system, the homeowners weren’t in default on their mortgage.
Referring to the LPS computer system, the judge stated, "the flaws in this automated process become apparent." She added: "An attorney must cease processing files and act like a lawyer."
Jacksonville legal aid attorney Charney says that carelessly prepared documents, containing basic errors, have been used to foreclose on a big portion of the homeowners who have lost their houses.
LPS denies that its system encourages carelessness by law firms. In the October 29 conference call, Chief Executive Carbiener said that based on routine internal reviews, "we are not aware of any defects in our signing and review processes that resulted in the wrongful foreclosure of any borrower."
(Editing by Jim Impoco and Claudia Parsons)
Special report: Legal woes mount for a foreclosure kingpin | Reuters
The Soldier Accused of Leaking Military Cables to WikiLeaks Is in Court Right Now « Above the Law: A Legal Web Site – News, Commentary, and Opinions on Law Firms, Lawyers, Law School, Law Suits, Judges and Courts
19 Dec 2011 at 5:09 PM
- Posted in:
Cyberlaw, Department of Justice, Laurence Tribe, Military / Military Law, TechnologyThe Soldier Accused of Leaking Military Cables to WikiLeaks Is in Court Right Now
The former military intelligence analyst accused of leaking hundreds of thousands of documents to WikiLeaks has spent the last four days in a Maryland military court, undergoing a hearing to determine whether or not his case will proceed to court-martial.
For those new to the party, 24-year-old Bradley Manning is accused of committing the biggest security breach in American history. He has been in detainment for the last 19 months, and he faces a multitude of military charges.
The Article 32 hearings, which began on Friday, are something akin to grand jury proceedings in civilian court. At the end, Investigating Officer Colonel Paul Almanza, an Army Reserve officer and Justice Department prosecutor, will
deciderecommend whether Manning’s case will proceed to court-martial.So far, the hearings have been interesting to say the least. Let’s see what’s going on….
Kim Zetter at Wired’s Threat Level is blogging extensively about the hearings (and tweeting some color commentary from court):
Manning, who turned 24 Saturday, is charged with 22 violations of military law and faces possible life imprisonment. Manning, who at the time was an Army intelligence analyst, is accused of abusing his access to classified computer systems to leak diplomatic cables, Iraq and Afghanistan action reports and the so-called Collateral Murder video to WikiLeaks. In chat logs published by Wired, Manning allegedly told Lamo that he leaked the documents as an act of political protest against a corrupt system and the he snuck files out of a shared workroom using rewritable CDs labeled with pop stars names, such as Lady Gaga.
One of the bigger revelations from the hearings is that the government produced chat logs from Manning’s own computer, where the soldier allegedly discussed leaking the cables. The messages had previously been made public, but Julian Assange and other Manning supporters claimed the chat messages could have been fabricated. Because the government found the logs on Manning’s own computer, forgery seems less likely.
The hearings have been understandably tense. Manning has a lot of supporters in the technology community. Although he has spent the last year and a half in custody, many say he is a whistleblower, not a traitor.
Back in April, more than 250 legal scholars signed a letter protesting the way the Justice Department was treating Manning. In the letter, signatories including Harvard Law professor Laurence Tribe protested Manning’s “degrading and inhumane conditions.” The letter called the military’s conduct illegal and unconstitutional.
On Friday, the hearing started with a bang when defense attorneys accused Investigating Officer Colonel Almanza (the equivalent of a judge in the case) of bias, because of his work as a Justice Department prosecutor. The defense unsuccessfully asked Almanza to recuse himself. (Hmm, I wonder where we’ve seen that before?)
Earlier today, retired lieutenant and prominent Don’t Ask Don’t Tell activist Dan Choi told Politico he was wrestled to the ground and handcuffed while trying to attend the hearing.
Zetter reported another dramatic moment on Sunday, which reads like something out of A Few Good Men:
Proceedings in the court this morning continued in a contentious manner between defense attorney Coombs and the proceeding’s equivalent of a judge, Investigating Officer Capt. Paul Almanza. At one point, when the IO tried to stop a line of questioning with a witness, questioning the relevancy. Coombs abruptly walked to the defense table and grabbed a book containing Article 32 procedural rules and brandished it to Almanza.
“I would caution the investigating officer as to case law,” he said, adding that the defense should be given wide latitude in questioning to obtain evidence.
“The IO should not arbitrarily limit cross-examination, ” he said. “I am not going off into the ozone layer about this. . . I should be allowed to ask questions about what this witness saw so I can have this testimony under oath as part of discovery.”
Zetter reports that the defense is trying to show that the Army should have responded better to behavioral problems Manning exhibited early in his enlistment. He should have never been deployed, or he should have lost his security clearance earlier, “both of which would have made it impossible for him to obtain the documents he allegedly leaked to WikiLeaks.”
So which is it? Traitor or courageous hero? Should the government put him in jail and throw away the key, or throw him a parade?
Army Arrested Manning Based on Unconfirmed Chat Logs [Threat Level / Wired]
DADT activist Dan Choi barred from Bradley Manning hearing [Politico]
Request for Recusal Denied in Case Against Manning [Associated Press]
Christopher Danzig is a writer in Oakland, California. He covers legal technology and the West Coast for Above the Law. Follow Chris on Twitter @chrisdanzig or email him at cdanziggmail.com. You can read more of his work at chrisdanzig.com.
Nye Lavalle, We Applaud You for Your Efforts to Expose Robo-Judges Signing Robo-Orders!!!
Message for My Friends & Colleagues –From: Nye Lavalle
Sent: Friday, October 28, 2011 3:50 PM
Please Read Entire Email
NOTE: to all blogs!!!
Please post the email to the AGs, I wrote last week that I did not send you. I wrote them in confidence.
However, since they have failed to act and respond I think the way to get to them AND GET RESPONSES AND ACTION is to publicly publish all my warnings and my letters so there is a VERY public record of notices and warnings to them.
They may wish to ignore me again, but I and hopefully each of YOU, won’t let them! So, please read You may also publish and post, separately, my letter attached to FHFA’s OIG.
Dear friends,
I am taking the gloves off, its that time! Attorney General Beau Biden did us all proud and right yesterday, despite the political reality that he faces in a state that hosts as corporations, the banks, Wall St. firms, and system he is attacking. I would ask that each of you kindly read the entirety of this letter and to assist me help each of you and this nation of ours and force the other AGs and elements of our government and the media to be as bold and brave as Beau Biden!
Beau knows MERS! LOL He certainly not only vindicated me and my decade-old fight against MERS and my predictions, but all of us, especially Max, April, Judges Logan and Gordon (would love to interview each now) and let me not forget our favorite jurist, Judge Schack!
Let us not forget the crooked judges too, like Craig Schwall and Louis Levenson in Fulton Co who will be getting their comeuppance next month in both courts of law and public opinion (the media). We need to have media focus on the Judges who get it and the judges we have evidence of corruption on. (including our tapes) This will be one of our new objectives. We also need to expose Robo-Judges™ who issue Robo-Orders™!
We’re starting a new movement in America. Our new movement will complement the Occupy Wall Street and Occupy the Internet movements by assisting those trying to help or most importantly IGNORING TO HELP our nation and states. That is the media who is trying to help and some in government like Beau Biden. The other AGs and regulators that ignore us will be publicly noticed and later publicly embarrassed if they fail to act, since a "record" of notices, warnings, and actions or inactions will be publicly displayed now and for the years to come that anyone can access. We shall begin with Names!!
The name for these new movements shall be Occupy The Government & Occupy The Media! As for the media, we shall and I request that you respect their time and their space.
The first step is that I want each of you to provide me, Lisa, Michael, Matt and everyone of our colleagues and comrades in arms with an email list of ALL media and government contacts you have in two separate email address books for Outlook or AOL. We will then discuss content to send by each of us to these contacts. For the media, we will target great story ideas for each journalist and editor we have befriended and has supported the cause. We will also provide a host of information, facts, and evidence for their investigative needs. The media is not only our friend, but our greatest ally in this movement, next to the Internet!
For government, we will create letters and petitions and forward to them in masse! Also, we will document and forward complaints, and evidence of fraudulent bank behavior. They are either with us, or against us! They get to choose and so do we, by a vote. It’s time to stop picking leaders by social issues, but real life issues. You’re either a bank bitch and for them or you’re not (like Beau).
I want to do to the AGs, all regulators, and politicians, what I did to CEOs and boards years ago, paper them and "put them on notice" to act. Let’s see if they ignore our warnings this time around since doing so, will surely jeopardize their political and/or professional aspirations. As they move up the political food chain, we will have a record of what they were warned of and what they did or didn’t do so that their prior actions can be judged by voters and regulators alike.
I am reminded of Gandhi’s quote "First they ignore you, then they laugh at you, then they fight you, then you win." We’re now winning, so it’s time to pile in on as the bankster’s lawyers would say. Over the years, I have created a "hit list" and "target list" of enemies and foes and have guarded carefully very personal information about them. While information is power, knowledge of what to do with that information, and the wisdom to know when its right to use, is key. I suggest you each do the same!
Next, I will begin writing more letters and more warnings based on my experience and I will start doing some polling with the help of supporters and sponsors I will seek from law firms. This will accomplish a few goals. First, it will bring national media attention and coverage to the issues and second, media attention, business and leads to the law firms than sponsor my research. My research has traditionally garnered national media attention and the front pages of virtually every newspaper as well as television and radio. It will once more, do so again.
As for Beau Biden, his complaint is a masterpiece and must read and pins the tail on the ASS (sorry, Donkey was way too kind) so to speak in MERS. In effect, he is not only seeking to shut down every MERS foreclosure in DE, but seeking to foreclose on MERS itself! I wonder what ASSet protection MERSCORP and its enablers have in place.
I have previously called the racketeering acts of the servicers the "default servicing enterprise." However, Beau kept it simple and called it the "foreclosure enterprise." I agree. From this day forward, when we discuss or refer to this racketeering enterprise, let’s all agree to call it and refer to it as the FORECLOSURE ENTERPRISE! Let’s get that mantra up and explain it for what it is, an enterprise which is key for RICO actions, both state and federal, which is where we will be going next with the evidence we have all uncovered. Make Foreclosure enterprise as widely known and accepted as robo-signing and fraudclosure!
In his complaint and his exhibits, Beau Biden has laid the foundation for attacking MERS and every lender. In every case where MERS is ANYWHERE in the chain (current or prior loans) you must file his complaint and exhibits with the court with a notice for the Court to take "judicial notice" of the complaint. Next, you must also file all of the county recorder lawsuits. Remember, building a record is the most important thing you can do in a case. This is how we will also expose the corrupt judges we have evidence on. An analysis of their record and rulings will assist media and also how we vote them out. We shall approve and disprove of judges and politicians and make our voices known, regardless of party affiliation. We will make them sign pledges and contracts, so we know where stand.
We will get our friends in person, email, and on Facebook, to work with us, petition, send emails, make phone calls and focus attention on issues and those who fight and oppose us. We will gather lists of names too and personal and email addresses for protesters.
Our first petition will be the abolishment of MERS and I am drafting Lisa Epstein to create the first draft using the relief that Beau seeks in his lawsuit to be the first petition of our group. Lisa, please copy me, Jacqs, April, Dan, and Max on it and we’ll get out soon!
Friends, its time! 2012, the Mayans predicted would be the end of the world "as we know it!" I’m reminded of the song "its the end of the world as we know it, its the end of the world as we know it. If we believe and act, we can do it! I know we can and i know we will!
It’s time my friends, time to get immediate attention and use the legal strategy the the banks and foreclosure mills created called "piling on" after football piling on. Let’s get to the media, get to the government, get to judges, and get to the people. Let’s Occupy Government and The Media and take control of the destiny God has given each of us! 2012 is upon us. The Mayans were right, its the end of the world as we know it, and the start of a new world, not new world order, as we desire and want it to be free of banks, political influence, and corruption!
Nye
Foreclosure Hell…
Important Evidence & Affidavit in Foreclosure Law Firm, Robo-Signing, & MBS Investigation
From Nye Lavalle
Thu, Oct 20, 2011 1:18pm
From Nye Lavalle
Dear Attorneys General:
Recently, the Office of Inspector General for the Federal Housing Finance Agency released reports about a special counsel investigation by Fannie Mae and that a shareholder had warned and provided Fannie Mae and others as far back as 2003 about robo-signing and foreclosure abuses. This story was picked up by the NY Times’ Gretchen Mogenson and a plethora of other news media. While Gretchen and the FHFA didn’t name me, I was nonetheless ousted since she and many others, including some of you, knew this shareholder was me.
I have been working hard behind the scenes to warn and stop the catastrophic events of the past few years which I first forecast in 1996! I have spent almost $1 million and spent over 40,000 hours since 1994 investigating, researching, and documenting these frauds. I have millions of pages of documents and a history like a bear in the woods who has left a trail all the way up to personally warning and communicating to the CEOs of virtually every bank, servicer, and Wall Street firm of these abuses. I took shares in each of these companies in the late 90s to warn them. Jaime Dimon, William Harrison, Kerry Killinger, Ace Greenberg, and James Cayne are just a few. However, the ratings agencies were warned as well as law firms and accounting firms, especially Deloitte!
As the shareholder that in 2003 warned Fannie Mae and worked with the independent counsel they appointed, Mark Cymrot, of Baker Hostetler in Washington DC, I have a unique perspective as well as set of facts that each of you could never obtain due to the cost and time limitations, that I have accumulated since 1993, almost 20-years!
However, as you will see by the attached letter to FHFA and links to reports and warnings I have authored since the mid-nineties, many were warned, including some of your offices since the mid to late nineties. I am also the individual that first discovered robo-signing and foreclosure fraud in the mid-nineties and authored reports documenting such abuses starting in the mid-nineties, until a "visiting judge" in Dallas, TX gagged me from telling this story.
It wasn’t until 2000, at the National Consumer Law Center conference in Colorado when I released reports on these frauds and abuses. Some of your lawyers were in attendance and were provided two reports. Only Max Gardner, a bankruptcy lawyer from North Carolina, took the reports to heart and began a decade-old fight to expose this corruption.
Robo-signing and foreclosure fraud and the intentional fraudulent filing of lawsuit complaints, advertisements of sale, assignments of mortgage, satisfactions of mortgage, and affidavits, as you will see from my well-documented reports, are not a recent phenomenon or the result of the securitization craze that swept America and the world from the late nineties to mid-2000’s.
They were carefully planned and orchestrated after the RTC debacle in the late 80s wherein a select group of "special servicers," commonly referred to in the industry as the industry’s "toxic waste dumps," were created to push these newly developed and even "patented" foreclosure factory processes that the four major special servicers "tested" and then "perfected" for the rest of the industry. These special servicers are known to many of you, but their names were EMC Mortgage, SPS f/k/a Conti-Fairbanks Capital, Ocwen, and Litton Loan.
Through "partnerships" with firms like the Barrett Burke operation in Texas, the LOGs group (Shapiro) out of Illinois, the McCalla Raymer group in Georgia and many others, they created an automated foreclosure machine that threw all caution to the wind when it not only came to ethics, but the law. In a newly expanding "virtual" world, they, along with vendors and third parties such as title insurers Fidelity National and First American created patented and marketable "cradle-to-grave" systems and processes to expand the housing and mortgage markets and cover-up and conceal the known fraud to all of them perpetrated mostly by aggressive loan brokers and occasionally borrowers and factored such losses and circumstances into their system. I can provide each of you with mens rea and scienter to prosecute for frauds.
As they tested these systems and perfected their fraud via such practices as intentionally concealing the real ownership of a promissory note and first foreclosing in the names of servicers who claimed to "own" the notes and then MERS, they really were double and multi-pledging the promissory notes to themselves and others to obtain servicing advances as well as take gain on sale accounting treatments on the notes they originated with no risk to them, since they had already forward sold the notes to our respective mutual, trust, and pension funds.
As you each take your own collective and individual approaches towards your investigations, I would whole-heartedly agree with Attorneys General Scheiderman, Biden, Harris, and others who want to continue this investigation. If you don’t continue and right the wrongs, I will boldly predict that each of you will have blood on your hands. I say this as no threat of any means whatsoever, but as a warning based on my understanding as a social scientist and advocate of the human psyche that for some is weak, but for others is broken. If you look at my forecasts and predictions over the years, I have one heck of a batting average in getting it right. As my former partner, Dr. Roy Stout who was featured in the book Blink, would say, I see things and data that others want to ignore. For the first time in my life, I am scared – – scared, not for me, but for our nation and our nation’s youth and those who might have to endure the consequence of the excesses of my generation.
Today, its mortgages, but when these young students, like an ex-girlfriend who at 22 left school with $150,000 in student debt realize what has occurred, all bets will be off. Today, they are peaceful – – tomorrow, they may be vengeful! The Occupy Wall Street movement is only the start. The American public and world, want to see accountability. They want to see perps walk. They want the intentional bankers, hedge funds, and Wall Street executives who intentionally created and manipulated this world-wide financial debacle prosecuted. If you don’t do it, I fear as the nation and the world’s economy suffers even more, there will be total anarchy in the streets as well as assaults and even "non-political" assassinations against banking CEOs, Wall St executives, and foreclosure lawyers, by para-military right and left wing extremists that were former Army Rangers and Navy Seals who are not only disenchanted with the current situation, but disenfranchised. Living in Savannah, GA last year, I met many Rangers each evening who were angry, very angry for fighting a war that they realized was not for Americans, but for other interests. The discussions I would have in the evenings were illuminating and gave me a great respect for our nation’s military men and women.
However, as they lose more friends, limbs, spouses, their sanity and now their homes, a combustible mixture that is not only flammable, but toxic is spreading. You can see it in the OWS movement and some of the videos. I say these things not to scare you, but to warn you once again and most importantly, to EMPOWER EACH OF YOU, collectively or individually.
You have each been give a god-given opportunity at a vital point in our nation and the world’s history. Each of you, if you do your jobs and ignore the politics, political influence, and lobbying from both banks and the federal government, have a special moment in time to leave a mark. A mark that historians will one day write was the day America and the world decided to be free of political and banking influence and truly helped create a world democracy.
The money now, whether it is $20 billion or $50 billion in the scheme of trillion dollar losses is really not what the people are angry at. They was to see accountability and those who not only created the situation, but manipulated it or ignored it to their personal gain be prosecuted. I hear their voices each day and that’s why I am coming out of the closet, so to speak, despite the threats against my family and I to offer my help and assistance in doing what is right for this nation, our people, and those youths protesting for what they know, that many in our generation simply ignored as they drove their BMWs, put dope up their noses, and lived it up at the expense of their children and grand children.
Now is the time. I can give you the goods on many of these if you want to really follow the patented fraud. Have you all read the patents as yet of all these so-called "processes?" The most human element in the entire automated factory were the actual ignorant robo-signers! In fact, when I discovered and reported on robo-signing, I did so just to give one "minor example of the overall fraudulent scheme that was designed not to defraud borrowers who were only pawns in the "game" as it was called, but our respective pension funds and extraction of our so-called excess wealth.
Think about it, for a moment if you will. Robo-signing is such an elementary fraud, so simple, so stupid, so petty! The real fraud and why the banks want to settle with you so quickly is the securitization and the fact that none of these deals were "true sales," but the financing of receivables whereby investors were defrauded and multi-pledging of paid off notes occurred to inflate their earnings, stock prices, and bonuses.
How many of you have had your original wet-ink promissory note returned to you canceled and paid in full upon its payoff or refinancing? Ask around the office? Then, check your lien release or satisfaction and see if it was robo-signed? Who is your real lender?
Open the black Pandora’s box of financial alchemy in securitization and you will find the multi-pledging and sale of paid off notes, the same notes, and even "ghost notes" that were created with Photoshop and never even executed by a real live borrower. I will save the death threats, break-ins, arsons, computer hacks, and millions of dollars of vexatious litigation by the banks and its foreclosure lawyers against my family, myself, our trusts, and the select group of advocates who were the first to take the baton from my hand for another day. I will even save the bribery of judicial officers, court reporters, and local judges for another day. All I ask is for each of you to think long and very hard, before letting the banks, their servicers, vendors, and lawyers off the hook.
I’ll come to see any of you and give any of you my deposition as well as access to whatever I possess in terms of evidence. I would also suggest that you ask each bank you are investigating and law firm to preserve all evidence and provide to you everything they have in their possession that contains my name "Nye Lavalle" or "Aneurin Lavalle" or this email address that I have had since the mid-nineties. <mortgagefrauds@aol.com> I am also more than willing to take polygraph exams, should you find that necessary. In essence, all I personally want is the real and true story told by a real and true investigation and the subsequent civil and criminal prosecution of those responsible for this nation’s morass.
I pray some, or all of you, will take me up on my offer. Please feel free to call or email me at any time if I can be of assistance to you or any of your collective or respective investigations!
Nye Lavalle
SEC Investigates S&P in Mortgage Crisis
Law.com
SEC Investigating Standard & Poor’s Role in Mortgage-Crisis CDO
Brian Glaser Contact
Corporate Counsel
September 27, 2011
On Monday, Standard & Poor’s parent company McGraw-Hill reported its receipt of a Wells notice from the U.S. Securities and Exchange Commission, warning of potential civil charges against the ratings agency for its role in the recent mortgage crisis.
According to CNN/Money, "the commission could fine the company for alleged securities violations related to a 2007 collateralized debt obligation deal that S&P rated. . . The CDO deal in question, known as Delphinus CDO 2007-1, was arranged by Mizuho International and Delaware Investments acted as the collateral manager. In 2007, S&P had a AAA rating on the security, which was backed largely by subprime mortgages."
McGraw-Hill was notified by the SEC on September 22 and, according to Financial Times, the move by the regulatory agency "marks the first time the SEC has sought to pursue charges against a ratings company in connection with its rating of a CDO, linked to pools of residential mortgages." S&P’s is also facing an ongoing investigation by the Department of Justice into its rating procedures.
The SEC’s action comes nearly two months after S&P’s downgraded the U.S. government’s credit rating.
As the SEC looks into possible charges against the company, The New York Times reports that the outcome is not clear-cut:
Standard & Poor’s and other rating agencies were not generally the architects of deals like Delphinus, but the AAA ratings they placed on parts of those deals were critical to the banks’ abilities to sell them to investors. S.& P. and other agencies made record profits placing ratings on mortgage securities like Delphinus, but they did not provide any sort of promises to investors that their ratings were accurate. If investigators at the S.E.C. or the Justice Department find that analysts at S.&P. intentionally gave out inaccurate ratings, that could be a violation of the law.
The news had an immediate effect on S&P’s and its parent company in one regard. Forbes reports of McGraw-Hill stock on Monday: "Shares slid 42 cents to $42.51 in afternoon trading. Earlier, the stock traded as low as $41.50."
See also, "Standard & Poor’s Sees Risk of U.S. Debt Default as Risk to U.S. Business," CorpCounsel, July 2011; and "The U.S. Credit-Rating Downgrade Will Keep In-House Lawyers Busy," CorpCounsel, August 2011.
Failure to show ownership
HSBC Bank USA, N.A. v. Gabay
Court: Maine Supreme Court
Opinion Date: September 15, 2011
Judge: Alexander
Areas of Law: Commercial Law, Consumer Law, Real Estate & Property Law
Janelle Gabay defaulted on a promissory note secured by a mortgage of her real property. HSBC Bank USA, the holder of the mortgage, filed a complaint for foreclosure and sale against Gabay. The district court granted HSBC’s motion for summary judgment. The Supreme Court vacated the judgment of the district court, holding that entry of judgment as a matter of law was precluded where (1) HSBC’s statement of material facts failed to properly present proof of ownership of the mortgage note; (2) HSBC’s statement of material facts did not contain an adequate description of the mortgaged premises including a street address; (3) a genuine issue of material fact existed as to the order of priority and amounts due to other parties-in-interest; and (4) the amount of costs due as part of the amount due on the mortgage was not included in the summary judgment record as required. Remanded.
BuzzNet Tags: foreclosure
Utah Supreme Court
Pyper v. Bond
http://law.justia.com/cases/utah/supreme-court/2011/20091025-11.html
Docket: 20091025
Opinion Date: July 29, 2011
Judge: Durrant
Areas of Law: Commercial Law, Consumer Law, Trusts & Estates
David Pyper hired attorney Justin Bond to represent him in a probate matter. Bond’s law firm subsequently sued Pyper to obtain payment of the attorney fees. The district court entered a judgment in favor of the law firm for $10,577. To satisfy the judgment, Bond filed a lien against a house owned by Pyper that was worth approximately $125,000. Bond was the only bidder at the sheriff’s sale auctioning Pyper’s home and purchased Pyper’s home for $329. Pyper later communicated his desire to redeem his property to Dale Dorius, another attorney at the firm, but was unable to speak to Bond after several attempts. After the redemption period expired, the deed to Pyper’s home was transferred to Bond. Pyper subsequently filed a petition seeking to set aside the sheriff’s sale of his property. The district court set aside the sheriff’s sale. The court of appeals affirmed. The Supreme Court affirmed, holding the court of appeals did not err in (1) concluding that gross inadequacy of price together with slight circumstances of unfairness may justify setting aside a sheriff’s sale and (2) affirming the district court’s conclusion that Bond and Dorius’s conduct created, at least, slight circumstances of unfairness.
DEKALB COUNTY GOES FROM BAD TO WORSE. NOW, THE ELECTED ENTITIES, ARE STABBING EACH OTHER IN THE BACK, THEN WHEN THAT PERSON IS GONE, THE PREDATOR TAKES THE JOB, AND SHE BRAGS ABOUT WHAT SHE HAS DONE; What the hell is this county, and the state of GEORGIA coming to?
http://www.atlawblog.com/2011/04/former-dekalb-court-clerk-sues-successor/
Former DeKalb Court Clerk Sues Successor
9:16 am, April 20th, 2011
Former DeKalb County Superior Court Clerk Linda Carter has sued the woman who now holds that title, Debra DeBerry, alleging that DeBerry tricked her into resigning from the job.
Carter sued DeBerry in her official capacity and individually, and seeks unspecified damages. Carter also sued Gov. Nathan Deal, seeking a writ of mandamus to remove DeBerry from office and to compel official recognition of Carter’s “status as the rightful elected Clerk.” The complaint alleges that Deal accepted the letter of resignation without knowing it was “null and void.”
Carter is represented by A. Lee Parks and James E. Radford Jr. of Parks, Chesin & Walbert. The suit, filed in DeKalb Superior Court, does not list counsel for DeBerry.
DeBerry’s chief deputy clerk, Rick Setser, who also serves as her public information officer, said the county attorney had advised both him and DeBerry not to comment.
“It’s unfortunate,” he said. “I’ve spoken to Ms. DeBerry, and she is eager to clear her name.”
Parks, in an earlier conversation with the Daily Report, said Carter suffers from Alzheimer’s disease and would not have left willingly, as she was two years shy of vesting in her pension and medical benefits. The complaint alleges that on the afternoon of March 24, Deputy Clerk Lisa Oakley—who is not a defendant in the suit—“acting on instructions from DeBerry” and with knowledge that “Carter was suffering from a temporary episode of dementia,” asked her to sign a letter of resignation.
“The letter was presented to Carter as a routine business document … its contents were obscured from Carter’s view. Oakley, acting on DeBerry’s instructions, did not inform Carter that she was being asked to sign a letter of resignation. … Oakley, acting on DeBerry’s instructions, and knowing that Carter did not know or understand the document’s content … indicated some urgency in having Carter sign the document.”
Oakley was not immediately available for comment.
The complaint alleges that on the evening that Carter signed her resignation letter, her husband, John Carter, came to pick her up from work and Oakley escorted her to the car. Oakley told Carter’s husband that “DeBerry had ordered that Oakley have Carter sign a letter of resignation.”
Also, allegedly on DeBerry’s instructions, Oakley said that Chief Judge Mark Anthony Scott “had ordered the Sheriff of DeKalb County, Georgia, to forcibly remove Carter from office.”
Scott said he did not even learn about Carter’s resignation until after it had been tendered and that he neither attempted to remove Carter from office nor ordered the sheriff to do so. He said he did not even have that authority. “I read those allegations. I do not know where they come from,” he said.
According to the complaint, when Carter’s husband called Setser, the chief deputy clerk, to discuss the circumstances of the resignation, Setser allegedly said he and DeBerry jointly created the letter and agreed to have Carter sign it “to avoid media inquiries into Carter’s medical condition.”
The case, Carter v. DeBerry, 11cv4584, has been assigned to DeKalb Superior Judge Daniel R. Coursey Jr.
Big Banks Save Billions As Homeowners Suffer, Internal Federal Report By CFPB Finds
Release Date:
March 28, 2011
Source: Shahien Nasiripour, The Huffington Post
NEW YORK — The nation’s five largest mortgage firms have saved more than $20 billion since the housing crisis began in 2007 by taking shortcuts in processing troubled borrowers’ home loans, according to a confidential presentation prepared for state attorneys general by the nascent consumer bureau inside the Treasury Department.
That estimate suggests large banks have reaped tremendous benefits from under-serving distressed homeowners, a complaint frequent enough among borrowers that federal regulators have begun to acknowledge the industry’s fundamental shortcomings.
The dollar figure also provides a basis for regulators’ internal discussions regarding how best to penalize Bank of America, JPMorgan Chase, Wells Fargo, Citigroup and Ally Financial in a settlement of wide-ranging allegations of wrongful and occasionally illegal foreclosures. People involved in the talks say some regulators want to levy a $5 billion penalty on the five firms, while others seek as much as $30 billion, with most of the money going toward reducing troubled homeowners’ mortgage payments and lowering loan balances for underwater borrowers, those who owe more on their home than it’s worth.
Even the highest of those figures, however, pales in comparison to the likely cost of reducing mortgage principal for the three million homeowners some federal agencies hope to reach. Lowering loan balances for that many underwater borrowers who owe less than $1.15 for every dollar their home is worth would cost as much as $135 billion, according to the internal presentation, dated Feb. 14, obtained by The Huffington Post.
But perhaps most important to some lawmakers in Washington, the mere existence of the report suggests a much deeper link between the Bureau of Consumer Financial Protection, led by Harvard professor Elizabeth Warren, and the 50 state attorneys general who are leading the nationwide probe into the five firms’ improper foreclosure practices, a development sure to anger Republicans in Congress and a banking industry intent on diminishing the fledgling CFPB’s legitimacy by questioning its authority to act before it’s officially launched in July.
Earlier this month, Warren told the House Financial Services Committee, under intense questioning, that her agency has provided limited assistance to the various state and federal agencies involved in the industry probes. At one point, she was asked whether she made any recommendations regarding proposed penalties. She replied that her agency has only provided “advice.”
A representative of the consumer agency declined to comment on the presentation, citing the law enforcement nature of the federal investigation into the mortgage industry’s leading firms.
The seven-page presentation begins by stating that a deal to settle claims of improper foreclosures “provides the potential for broad reform.”
In it, the consumer agency outlines possibilities offered by the settlement — a minimum number of mortgage modifications, a boost to the housing market — and how it could reform the industry going forward so that investors in home loans and the borrowers who owe them would be able to resolve situations in which borrowers fall behind on their payments without the complications of a large mortgage company acting in its own interest.
The presentation also details how much certain firms likely saved in lieu of making the necessary loan-processing adjustments as delinquencies and foreclosures rose. Bank of America, for example, has saved more than $6 billion since 2007 by not upgrading its procedures or hiring more workers, according to the report. Wells Fargo saved about as much, with JPMorgan close behind. Citigroup and Ally bring the total saved to nearly $25 billion.
The presentation adds that the under-investment far exceeds the proposed $5 billion penalty that has been on the table. People familiar with the matter say the Office of the Comptroller of the Currency wants to fine the industry less than $5 billion.
The alleged shortchanging of homeowners has prolonged the housing market’s woes, experts say, because distressed homeowners who are prime candidates to have their payments reduced aren’t getting loan modifications and lenders are taking up to two years to seize borrowers’ homes.
The average borrower in foreclosure has been delinquent for 537 days before actually being evicted, up from 319 days in January 2009, according to Lender Processing Services, a data provider.
The prolonged housing pain has manifested itself in various ways.
Purchases of new U.S. homes dropped last month to the slowest pace on record, according to the Commerce Department. Prices declined to the lowest level since 2003, according to the National Association of Realtors. About 6.9 million homeowners were either delinquent or in foreclosure proceedings through February, according to LPS.
A penalty of about $25 billion — based on mortgage servicing costs avoided — would have “little effect” on the five firms’ capital levels, according to the presentation, since the five banks collectively hold about $500 billion in tangible common equity, the highest form of capital. Those numbers notwithstanding, banks and Republicans in Congress have complained that such a large penalty would have a disproportionate impact on bank balance sheets, hurting their ability to lend or pay dividends to investors.
The presentation adds that given the extent of negative equity — underwater homeowners owe $751 billion more than their homes are worth, according to data provider CoreLogic — “we have gravitated towards settlement solutions that enable asset liquidity and cast a wide net.” The solution is an emphasis on reducing mortgage debt and enabling short sales, thus allowing borrowers to refinance into more affordable loans or to sell their homes and move on.
Top Federal Reserve officials and other economists have pointed to the large numbers of underwater homeowners as being one of the reasons behind high unemployment, as underwater homeowners are unable to move to where the jobs are. More than 23 percent of homeowners with a mortgage are underwater, according to CoreLogic.
The proposed settlement, as envisioned by the consumer agency, could reduce loan balances for up to three million homeowners. If mortgage firms targeted their efforts at reducing mortgage debt for three million homeowners who owe as much as their homes are worth or have less than 5 percent equity, the total cost would be $41.8 billion, according to estimates cited in the presentation.
If firms lowered total mortgage debt for three million homeowners who are underwater by as much as 15 percent and brought them to 5 percent equity, that would cost more than $135 billion, according to the presentation. That would include reducing second mortgages and home equity lines of credit.
In its presentation, the consumer agency said the new program, titled “Principal Reduction Mandate,” could be “meaningfully additive to HAMP” — the Home Affordable Modification Program, the Obama administration’s primary mortgage modification effort.
The CFPB estimates that there are about 12 million U.S. homeowners underwater, most of whom are not delinquent, according to its presentation. Of those, nine million would be eligible for this new principal-reduction scheme born from the foreclosure deal. The new initiative would then “mandate” three million permanent modifications.
News of the level of the consumer agency’s involvement in the state investigation would likely be welcomed by consumer and homeowner advocates, who have long complained of the lack of attention paid to distressed borrowers by federal bank regulators like the OCC and the Federal Reserve.
But Republicans will pounce on the news, creating yet another distraction for a fledgling bureau that was the centerpiece of the Obama administration’s efforts to reform the financial industry in the wake of the worst economic crisis since the Great Depression.
Meanwhile, the banking industry will likely celebrate government infighting as attention is diverted away from allegations of bank wrongdoing and towards the level of involvement of Elizabeth Warren, a fierce consumer advocate and the principal original proponent of an agency solely dedicated to protecting borrowers from abusive lenders.
Warren is standing up the agency on an interim basis. It formally launches in July, at which point it will need a Senate-confirmed director in order to carry out its full authority. One of those areas will be how mortgage firms process home loans for distressed borrowers.
A spokeswoman for JPMorgan Chase declined to comment. Spokespeople for the other four banks were not immediately available for comment.
GA Court of Appeals Does It Again!
Judge William S. Duffey, Jr. Edited this Book on the Calling to Be A Lawyer? That Explains the Corruption
New Title! A Life In The Law: Advice For Young Lawyers, edited by William S. Duffey, Jr. and Richard A. Schneider American Bar Association, 2009
Call Number: KF 372 .L54 2009
In this book’s nineteen essays, editors Duffey (U.S. District Judge for the Northern District of Georgia) and Schneider (senior partner at King & Spalding in Atlanta) examine the calling to be a lawyer. Contributing authors include Griffin Bell, Fifth Circuit Court of Appeals Judge who was appointed by President Kennedy and served as Attorney General under President Carter; Paul Clement, former Solicitor General under George W. Bush; and Leah Sears, who at age 36 was the youngest lawyer and the first woman to sit on the Georgia Supreme Court, and later became its first Black female Chief Justice. These and many others write about the values of the profession, the responsibility of lawyers to their communities, and their duty of service to clients, to the public, and to each other. Also addressed are the troublesome issues of how hard lawyers are expected to work, and what sacrifices they should and shouldn’t make.
Georgia Citizens Rights to the Courts
http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=1202473818462
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Georgia Mulls Citizens’ Right to Access Courts via E-File
Greg Land
10-25-2010
A DeKalb County judge expressed surprise Tuesday when an attorney representing the parent company of LexisNexis asserted that the public has no constitutional right of access to the courts. The exchange came in a hearing before DeKalb Superior Court Judge Robert J. Castellani on a motion for summary judgment in a case that seeks to have Fulton County’s e-filing system declared unconstitutional.
The case is the fourth iteration of a potential class action against Fulton County and its e-filing system, and charges that the Fulton court’s requirement that documents be filed via the fee-based LexisNexis File & Serve system declared an unconstitutional violation of citizens’ right to access the courts. The suit also says the Fulton court’s requirement violates Georgia law that stipulates the method by which legal documents must be filed and constitutes an “illegal scheme” between the county and LexisNexis’ parent company, Reed Elsevier, to “impose an unlawful mandatory e-filing system upon litigants in Fulton County State and Superior Court and to charge excessive and unauthorized fees in connection therewith.”
In a series of orders beginning in 1999, approved by the Fulton County Board of Commissioners and signed by then-State Court Chief Judge Albert L. Thompson, cases must be e-filed if they involve asbestos, Fen-Phen, mercury or lead, silicosis, welding rods, medical or legal malpractice, personal injury, cases with four or more plaintiffs or defendants, cases in which more than $50,000 in damages is being sought, torts cases, and those in which no specific dollar figure is demanded.
In Superior Court, certain asbestos and silicosis cases must e-file, and all filings in the criminal case against convicted Fulton County Courthouse shooter Brian Nichols also are required to be e-filed.
The complaint says that LexisNexis charges administrative fees of between $7 and $12 for each document filed in addition to the courts’ statutory filing fees, according to the complaint. A public access terminal at the courthouse allows pro se litigants to register and file documents without paying the fee.
The plaintiffs include three attorneys; a non-attorney who, as administrator of his father’s estate, “has been subjected to the Lexis fees”; and a corporate entity, Best Jewelry Manufacturing, which was a party to a suit in Fulton County State Court in 2008.
At one point, according to the complaint, Best’s attorney “was ‘locked out’ of defendant Lexis’ e-filing due to counsel’s alleged failure to pay fees,” and was thus unable to file a motion in the case.
The original eight-count complaint included charging Fulton County and Reed Elsevier with violating Georgia laws that require any court to accept paper filings, and forbidding “usage fees, interest, finance charges, administrative fees and other assessments not authorized by Georgia law.” Other counts allege violations of the rules governing state courts, and of the Georgia Constitution’s guarantee of access to the courts.
An amended complaint in March added counts of conversion and money had and received, which pertains to the fees already collected from the system’s users.
Atlanta attorney Steven J. Newton previously filed two similar suits in federal court; he voluntarily dismissed the first one in 2007, and the court dismissed the second last year. He also filed and voluntarily dismissed a 2007 suit in Fulton County Superior Court where the current suit, with two additional plaintiffs, was filed in January. The Fulton bench recused, and the case was assigned to Castellani.
At Tuesday’s hearing, the court heard arguments concerning Reed Elsevier’s motion to dismiss the suit. Paul, Hastings, Janofsky & Walker partner William K. Whitner, representing the company, argued that the dismissals of the earlier suits, and the submission of several amended complaints to them, indicated that the case has no merit and should be dismissed.
Further, he said, several of the allegations had no bearing on his client.
Reed “is a private party,” he said, and assertions that it could violate laws and regulations relating to the behavior of courts, clerks, or state agencies “have nothing to do with a contractual supplier like Reed Elsevier.”
Whitner pointed to the March 23, 2009, order dismissing the second federal case authored by U.S. District Judge William S. Duffey Jr., which includes the statement that “[p]laintiffs’ state law claims, to the extent they can be discerned at all, repeatedly allege violations of Georgia statutes and court rules that could be broken, if at all, only by the government defendants in this case.”
That order, said Whitner, “while not binding on this court, is certainly instructional.”
“It’s clear that, even if the e-filing were instituted improperly — which we do not believe — Reed has no control,” he said.
But it was Whitner’s statement on the constitutional claims that got Castellani’s attention.
“On the constitutional claims,” said Whitner, “they repeatedly refer to it as a ‘right to access to the courts.’ … The Georgia Supreme Court has repeatedly held that there is no constitutional right to access to the courts.”
“Did you just say there’s no right of access to the courts?” asked Castellani.
“No constitutional right,” said Whitner.
“So a court could establish a filing fee of $1,000, and if somebody didn’t have it, that would be OK?” asked the judge.
“It’s not even a close call,” said Whitner, citing Article 1 of the state Constitution, which states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”
“This provides a right to representation,” he said. “That’s the what the case law says; I’m not saying it’s right or wrong.”
“I hope that’s not what your case rests on,” replied Castellani.
Newton’s co-counsel, associate Shuli L. Green, rose for the plaintiffs, first arguing that Georgia’s voluntary dismissal doctrine clearly allows a case to be voluntarily dismissed and refiled, and that the addition of the new plaintiffs meant that they should certainly have their chance in court.
“Does that mean that no class action could ever be subject to the voluntary dismissal doctrine” as long as new plaintiffs were added? asked Castellani.
“Not until the putative class members are certified by the court,” Green replied.
“That makes sense,” she added, “since we don’t even know who the class members are yet.”
As to Reed’s assertions that it could not be held responsible for the actions of state actors, Green replied that the company is “the functional equivalent of Fulton County as far as setting these filing fees.”
But she saved her harshest critique for the defense argument that the state Constitution affords no right to access to the courts.
She cited the Georgia Supreme Court’s ruling in Nelms v. Georgia Manor Condo Association (253 Ga. 410), which held that while the right to access to the courts is not unfettered, “it is axiomatic that an individual must have access to the courts in order to assert the right of self-representation provided by [the right to the courts provision].”
The requirement that all attorneys pay the fees and may not file by mail or in person is onerous enough, she said, but the burden on pro se filers — who have to either sign up with Lexis to pursue their case, or make their way to the Fulton County Courthouse, perhaps at considerable expense, to use the free PAT terminals creates a hardship that breaches constitutional strictures, she said.
Further, she said, the necessity to make that choice itself impacts a citizen’s right to select his or her choice of representation.
She also noted that, under the defense interpretation, there is no limit as to what fees can be charged.
“That proposition does concern me a little bit,” said Castellani, although “I don’t think it’s relevant here. There are alternatives available.”
“Their argument is that you don’t have to pay [to use the PATs],” she said, “but if you do have a lawyer your only option is to either have your lawyer file orders and pay him for his time, or pay a lawyer to use the free terminal, so it’s not free.”
Castellani did not issue any rulings, nor did he indicate when he might do so.
In response to an inquiry, a Reed Elsevier spokesman provided an e-mailed statement.
“LexisNexis has worked with the Fulton County courts since 1999 to provide court personnel and legal professionals with an efficient way to handle the exchange of legal documents through File & Serve,” it said. “The service allows for increased control over case file management, quicker and more cost effective filing and service, improved access to information and enhanced case monitoring. We believe the residents of Fulton County also benefit by the Court’s ability to more efficiently manage documents and reduce costs for document storage and administration.”
The case is McCurdy v. Fulton County, No. 2010CV179757.
A similar case is proceeding in federal court in Texas, where a class action was filed earlier this year against a judge, court clerk and county. In 2003, Montgomery County District Court Judge Frederick E. Edwards issued an order requiring that civil case documents be filed only through LexisNexis, exempting only filings filed by the state, Child Protective Services, adoptive actions, and new divorce and annulment cases that are resolved within 90 days, according to the complaint.
The Texas suit alleges constitutional equal protection and due process violations, and asserts that the arrangement between the company and county constitutes a violation of the federal Racketeer Influenced and Corrupt Organizations law.
The case in U.S. District Court for the Southern District of Texas is McPeters v. Edwards, No. 4:10-CV-1103.
Beware of Court’s Clerks
Georgia Supreme Court Opinions Database: Direct Appeal Opinions
Georgia Supreme Court Opinion: Smith et al. v. Baptiste et al.
Georgia Supreme Court Opinion: State of Georgia ex rel. Doyle v. Frederick J.Hanna
Court Thwarts Governor’s Attempt to Investigate Debt Collection Firm (via Georgia Supreme Court Blog)
In the Domain Name World
For all of those who are involved in domain names, visits Domain news websites, and/or keeps up with the Rick Latona auctions…
All I have to say is the following in support of John Zuccarini in the DS Holdings v Zuccarini and/or the Zuccarini v NameJet, Network Solutions, Verisign, Enom cases:
“Equal Justice for All”????
If you go back to the original Office Depot v Zuccarini suit, the Court lacked jurisdiction and venue. They claimed quasi in rem jurisdiction under ACPA, but still a problem… In that case they should have had to go to VA to do the suit.
Then Office Depot gets this judgment, and never tried to collect on it, yea DSH has repeatedly claimed that Office Depot couldn’t ever collect because of Zuccarini and his notorious way of moving around and not being able to find him. That too is hogwash.
The facts clearly show that Zuccarini was living in FL since 2001 and was fairly easy to find (most of the time); nevertheless, Office Depot never bothered to file the Judgment in FL, so that means they never tried to collect on it.
And for everyone else that wants to say some really bad things about Zuccarini… he may be alot of things, but really people “criminal notorious cybersquatter”; “serial cybersquatter”, and other references, which are really quite worse… Then you have some asshole attorney, Kronie, who claims that the Shields case is where some of the worse comes from. I read the Shields Appellate Court Opinion, it didn’t say that at all. It said:
“Although Zuccarini’s sites did not involve pornography, his intent was the same as that mentioned in the legislative history above — to register a domain name in anticipation that consumers would make a mistake, thereby increasing the number of hits his site would receive, and, consequently, the number of advertising dollars he would gain.”
So John was given a bad time, and there are a lot of wild rumors out there, and a lot of people want to say a lot of BullShit, but really… does that make DS Holdings, Rick Latona, or any other number of entities better? They are actually bigger crooks than Zuccarini could ever be… Kronie does it under the guise of being an attorney.
Maybe that is why attorneys have bad names (not all attorneys, Berryhill has shown to not be quite like the rest, and I hear good things about several others that run domain news websites)
Then you have this Judge…Illston. What the hell kind of Judge allows that much fraud upon the Court in their Courtroom? Is she just stupid, or is she in on it too?
Does DS Holdings somehow own Illston?
Hell, now I have more questions than I had before I found out that Kronie is DSH!
The Invention of a criminal statute in order to arrest a citizen
Basically that is exactly what happened. I don’t really know onto who’s Birthday cake John Zuccarini shit so many years ago, but the whole incident has had the Domain world talking about it off and on for more than ten years.
Yes, the gov’t did invent a new crime in order to arrest Zuccarini; why? Because they could. Where in the hell is due process of law when that happens?
Don’t take my word for it, John Berryhill is an attorney, and well known in the “Domain” world… Berryhill was responding to one of my questions on the matter as I was trying to learn more about the situation…
John Berryhill
June 9th, 2010 | 3:38 pm
“My question is this… If Zuccarini was prosecuted for using these particular domain names, are they not illegal?”
There are several legal actions involving what might be termed “Zuccarini domains”.
The basic lay of the land in THIS case is that an attorney in California bought uncollected civil judgments against Zuccarini and used those judgments to levy against his *other* domain names. In that view, *these* domain names were not the ones which triggered the civil judgments (which I believe also transferred the infringing domains). It is something like my putting a lien against your house because I obtained a judgment against you for hitting me with your car.
Now, there is another shoe to drop here, because the US government also has some outstanding issues, and has filed to intervene in the case. The US issues relate, IMHO, to back taxes and to a judgment with the FTC obtained against Zuccarini at some time in the murky past. Interestingly, the FTC order prevented him from engaging in a laundry list of activities involving trafficking in the entire set of his domain names.
Apart from all of that, there was a criminal conviction of Mr. Zuccarini resulting from an alleged violation of the Truth in Domain Names Act (or whatever it was called). Oddly, the indictment in that case relied on acts committed prior to the effective date of the statute, but Mr. Z took a plea deal for reasons unknown. US Attorneys can be very persuasive.
While the US has not completely dropped its shoe yet (the last time I checked the docket), it is not outside of the range of possibilities for the US to see things your way – i.e. that the collection of domains itself (cybersquatted or not) is somehow tainted as “instruments of crime” or some other theory that will snatch defeat from that clever California attorney’s hands.
Needless to say, the US government has large shoes.
The decade-long sweep of this story is epic.
DeKalb Superior Court Judge Mark Anthony Scott
Keep in mind, Judge Scott has had an Appeal and Void Judgment in front of him for over three years. He set it for Jury Trial that was to begin January 26, 2009. He failed to send Notice of trial to any of the parties.
Monday, January 26, 2009 in a wheelchair, I attended a “Jury Trial” calendar call in Superior Court before Judge Mark Anthony Scott for an Appeal from Probate Court, which was filed three years ago. When my name was called I responded; Judge asked if I was ready for trial, I responded that I was. Judge asked if I was proceeding Pro Se, I responded that I was. Judge asked if I was represented by counsel, I responded that No, I am proceeding Pro Se. The Judge asked me two more times if I was represented, and/or if I was proceeding Pro Se, I responded that I am proceeding Pro Se both times.
The clerk, very quietly spoke to the Judge. The Judge stated that there are “technical difficulties” in the file. I asked what the technical difficulties are. The Judge, very irritated stated to the Bailiff “take him out back!” I stated to the Judge: “All I did was ask what the difficulties are”; Judge responded: “I didn’t like your tone of voice!”; I responded: “I am in constant pain, I wasn’t rude”; Judge said: “Why didn’t you tell me that to begin with, I was having you arrested for contempt!”; I said nothing. The Judge then said: “Bailiffs take him out of my Courtroom!”
At that point the Bailiffs, one grabbing the handles of my wheelchair physically removed me from the courtroom. I waited outside approximately 30 minutes, decided I should go in case this Judge decided to have me arrested for contempt. I have heard nothing sense.
The BlackRobed Mafia 