Tag: federal court

City of Springfield Banned all Foreclosures! How Will The Supreme Court Rule On That?

by nootkabear, posted in Alert, Attorneys, Banksters, Censorship, Court Cases, Courts, Disasters, Feds, foreclosure, Fraud Upon the Court, globalists, Health, Injustice, Japan, Judges, Judicial Corruption, Judicial Rulings, law, Legal, manifest injustice, Radiation, Raidoanalytical, US Bank
 

BOSTON – A group of Western Massachusetts banks argued before the state’s highest court on Thursday that the city of Springfield’s anti-foreclosure ordinances should be overturned.

The banks say the local ordinances contradict state laws, and a bond levied on lenders constitutes an illegal tax. “It’s not that banks are opposed to mortgage laws and reform, but to how it’s being done,” said Craig Kaylor, general counsel for Hampden Bank, one of the banks that brought the lawsuit. “These are for the state to decide, not city by city.”

But the city disagrees and says the laws are necessary to avoid blight and protect neighborhoods that have high rates of foreclosure.

“This is the city’s response to the foreclosure crisis,” said Springfield Assistant City Solicitor Thomas Moore, who argued the case before the Supreme Judicial Court. “It’s a response from the city council and mayor based on what they see every day in the city. They’ve taken the strongest stance to protect homeowners and the city itself.”

The city of Springfield passed two anti-foreclosure ordinances in 2011 as the city was being hit hard by the mortgage foreclosure crisis. One ordinance requires a bank that forecloses on a home to pay for a $10,000 bond, which can be used by the city to maintain the foreclosed properties, if the bank fails to do so.

The other ordinance requires the establishment of a mandatory mediation program to help homeowners facing foreclosure. The bank would be responsible for paying most of the cost of the mediation.

Springfield is among the top cities in the state in the number of distressed properties it has. The city says high rates of foreclosures lead to health and education problems for children in families that lose their homes, and high rates of blighted or vacant properties lead to crime and violence in those neighborhoods.

Six western Massachusetts banks, with Easthampton Savings Bank as the lead plaintiff, challenged the ordinances. A U.S. District court judge upheld the ordinances. However, on appeal, the U.S. Court of Appeals issued a stay preventing Springfield from enforcing them. The federal court then asked the Supreme Judicial Court, the state’s highest court, to answer two questions related to state law before the federal court makes its ruling. The case is Easthampton Savings Bank and others vs. City of Springfield.

The SJC must decide whether the local foreclosure ordinances are preempted by existing state foreclosure laws. The court must also decide whether the $10,000 bond is a legal fee or an illegal tax. Cities and towns cannot create taxes without legislative approval.

The banks also argue that the ordinances violate the contract clause of the U.S. Constitution by impairing the contract between the homeowner and the mortgage-holder, a question that remains before the federal court.

During Thursday’s arguments, Tani Sapirstein, an attorney representing the banks, argued that the bond is a tax because banks do not get any particular benefit from paying it – which is the criteria for calling something a fee. The way the bond works is when a foreclosed property is sold, if the city did not have to use the bond money to maintain it, $9,500 would be returned to the bank and $500 is kept by the city as an administrative fee, used to maintain blighted properties and implement the foreclosure laws.

Chief Justice Ralph Gants questioned Sapirstein on whether the bank does not actually receive benefits. “You have an interest in preserving the value of your property,” Gants said. “If there are foreclosed properties going to hell all around your property, it diminishes the value of your property and diminishes the value of what you receive on the foreclosure. Why is this concern about avoiding blight not something that would benefit the bank as well as the city?”

Sapirstein replied that eliminating blight would benefit the bank “as well as the city and other property owners in the neighborhood.” “How is that a particularized benefit?” she said.

Moore argued that the bond is a fee, which the city needs to hire code inspectors and create a database of who controls foreclosed properties.

But Justice Geraldine Hines said if she pays for a copy of her birth certificate, she gets a document in return for the fee. “Here I don’t see that,” she said. “The property owners, the mortgagees, don’t have something tangible.”

Moore said the banks get a “well-regulated industry” and preservation of their property values. In addition, when a bank registers ownership in the database, the city knows who is responsible and problems can be resolved more easily.

Sapirstein also argued that local law cannot require more than state law in an area that is regulated by the state or the result would be “a patchwork of ordinances.”

Gants indicated that the court may move to narrow the ordinances – for example, applying them only to a bank that has taken possession of a house, not a bank that is in the process of foreclosure when the homeowner is still living there. Gants said the ordinance as written could fine a bank for not maintaining a property where the homeowner still lives. As a homeowner, Gants said, “I’d say I’m still living here. This is my home. How can they be punished for not invading what’s still my home just because they happen to be foreclosing on it?” Gants said.

Moore acknowledged that the ordinance may be overbroad and said the city does not anticipate pursuing a violation in a case like that. Moore said the lenders’ lawsuit is premature because there is no information yet about how the city will enforce the laws. “We have the lenders essentially saying the sky will be falling, we are worried about x, y, z happening. None of that has happened and none of that may happen,” Moore said.

Moore said the city is still writing the regulations for the ordinances and if they are upheld, “The city is ready to go forward with implementation within a period of weeks.”

Similar foreclosure ordinances were established in Lynn and Worcester, and local banks challenged those as well. That lawsuit is pending in U.S. District Court in Worcester. The case involving Lynn and Worcester could be affected by the SJC’s ruling in the Springfield case.

Several activists supporting homeowners came in from Lynn and Springfield to hear the arguments. Candejah Pink, a Springfield homeowner and community organizer battled foreclosure for four years before reaching an agreement to keep her home. She helped write the Springfield ordinances. Pink said the bond is there to ensure that homes are maintained, which keeps crime and violence down. The mediation program, she said, is important to help homeowners come to an agreement with lenders. “We’re not asking to live in our homes for free. We’re asking for some mediation,” she said.

Wrongful Foreclosure Complaints

by nootkabear, posted in Attorneys, Court Cases, Courts, Disasters, foreclosure, Fraud Upon the Court, Judicial Corruption, Judicial Rulings, law, Legal, manifest injustice, the web

 

It is truly amazing, the number of wrongful foreclosure complaints that are on the internet.  People search around for a complaint to copy and file in the Court, and wallah!  That one looks like a winner! 

Ever do a google search on "wrongful foreclosure"?  Amazingly… there are millions of returns on that phrase.

The other thing that no one considers, is who really puts all those sample complaints on the web?  Is every site on the up and up, or do the banks contribute their share with mis-information.  It would have to be that way. 

I have noticed some of the complaints that have ended up in the Courts, filed by pro se litigants.  Obviously, someone put that complaint out there, just so that these people would file it and fail.  Like… Well, there is another we won’t have to worry about fighting us in the courts.  So who?  Who would do such a thing?

Clearly another pro se litigant would not take an unproven complaint and suggest to others that it is a winner. 

And God knows, the plethora of bad case law already created from the rulings of federal courts, ESPECIALLY rulings from US District Court or the Northern District of Georgia, with the exception of course of Amy Totenberg’s rulings.  Those are actually the only ones worth readings. 

If you have a case in front of any other judge in NDGa., why even wait till its over to read the ruling, you know what it will say.

The Securitization Curtain is Lifting in Hawaii! | Deadly Clear

by nootkabear, posted in Attorneys, Court Cases, Courts, foreclosure, Judicial Rulings, law, Legal

Deadly Clear

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

The Securitization Curtain is Lifting in Hawaii!

Posted on March 29, 2012 by Deadly Clear

“One of the most important decisions for Borrowers Rights in the history of Hawaii has been made with this decision,” remarked Honolulu attorney Gary Dubin. Honorable Judge J. Michael Seabright of the Hawaii United States District Court, today GRANTED the homeowners’ Motion to Dismiss the case filed against them in federal district court by Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1.

The Williamses (Leigafoalii Tafue Williams and Papu Christopher Williams), who were represented by Honolulu attorney, James J. Bickerton (Jim), of Bickerton Lee Dang & Sullivan, filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), in which they argue, among other things, that Plaintiff has no standing to foreclose because it has not established that it was validly assigned the Mortgage and Note.

The Court noted that: “Because the court finds that Plaintiff has failed to establish its standing to bring this action, the court need not reach the Williamses’ other arguments for dismissal.”

Honorable Judge J. Michael Seabright gets it! And his ORDER was detailed. In the Discussion, Judge Seabright notes an argument that homeowners have being trying to persuade the courts (especially at the lower state levels) to grasp: STANDING and JURISDICTION.

“Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to “show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12. In comparison, “prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights.” Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).”

Let’s continue – but we’ll get back to that injury issue later in the post.

The WILLIAMSES’ ORDER continues: “The Williamses factually attack Plaintiff’s prudential standing to foreclose, arguing that there is no evidence establishing that Plaintiff was validly assigned the Mortgage and Note on the subject property. The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined with the merits of the Plaintiffs claims seeking to foreclose…”

Of course, this was a New Century Mortgage (Home123) and the Plaintiffs were taking part in a fabricated assignment in 2009 to a 2007 Trust… (that boat had sailed 2 years before because theTrust had long since closed) – but even more compelling in the Motion to Dismiss-Memorandum was the Williamses assertion that New Century aka Home123 was in a liquidating bankruptcy as of August 1, 2008 and they had nothing to assign in January 2009.

Deutsche argued that the Williamses were not parties or beneficiaries to the assignment such that they cannot challenge it… [we’ve heard that before, yeah?]. However, the Judge Seabright clarifies a valid point:

“Plaintiffs argument confuses a borrower’s, as opposed to a lender’s, standing to raise affirmative claims. In Williams v. Rickard, 2011 WL 2116995, at *5 (D. Haw. May 25, 2011), — which involved the same parties in this action and in which Lei Williams asserted affirmative claims against Deutsche Bank – Chief Judge Susan Oki Mollway explained the difference between the two:

“…Standing” is a plaintiff’s requirement, and … Defendants must establish “standing” to defend themselves.”“

Judge Seabright continues: ”Deutsche Bank asserts affirmative claims against the Williamses seeking to enforce the Mortgage and Note, and therefore must establish its legal right (i.e., standing) to do so. See, e.g., IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821, 828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have “a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor’s] default”).”

Attorney Bickerton faced off in court and explained to the Judge in oral argument that the banks didn’t just miss the date to file their assignments or needed to tidy up paperwork, this was a ‘Business model using the loans for overnight lending.’ Bickerton told the Court that if this wasn’t dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williamses’ loan.

Understanding the premeditated intentions of these banks, how they pledge, collaterize, swap, sell, lease,and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard – the fraud upon the homeowners, the courts and the state.

Jim Bickerton profoundly says that, “every foreclosure in the state is a victim of this shadow banking scam.”

James J. Bickerton
Bickerton Lee Dang & Sullivan
Fort St Tower
745 Fort St Ste 801
Honolulu, HI 96813
808-599-3811
Email: bickerton@bsds.com

“Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary,” praises Gary Dubin.

INJURY – Remember that issue from above?

Let’s discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID. The REMIC has failed. But maybe the investors ARE getting paid with the behind the scenes shadow banking scheme.

And let’s suppose we can see the trading in the trust is active, numerous investors have already been paid off – where is the “injury”….hmmm?

We’re connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in… and eventually we’ll know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to “off” us)… it’s coming soon – to a court room near you…

…and the Securitization curtain will be lifting for the big show.

___________________________________________________________________

Details by DeadlyClear

Honorable Judge J. Michael Seabright – Thank you. Mahalo!
This is why he gets the “Gets It” award:

http://archives.starbulletin.com/2005/04/28/news/story5.html

An assistant U.S. attorney who prosecuted several high-profile white-collar criminal cases here is on his way to becoming Hawaii’s fourth full-time federal judge. Michael Seabright: As an assistant U.S. attorney, he put three isle politicians behind bars.

The U.S. Senate voted 98-0 yesterday to confirm J. Michael Seabright as a U.S. district judge for the District of Hawaii. ”I’m very honored to have received that vote,” said Seabright, 46, an assistant U.S. attorney since 1990 and head of the white-collar crime section since 2002.

Image of the Honorable John Michael Seabright from http://www.grainnet.com/articles/usda_cited_by_federal_judge_for_permitting_violations_in_hawaii-36404.html