Thoughts on Foreclosures

James and I were working outside, and he called me over and we began talking about that which occupies most of out time…  

Foreclosures.  

Many people don’t realize it, but there are many unseen reasons that people are foreclosed on.  After putting people into  toxic loans, and putting those toxic loans into pools with numerous other toxic loans, there was just a matter of time before the loans would go default, we all know that, the payments would become unmanageable.  

But many people, those who came to a better standing than they had been before, and being more prosperous, and even those who were not,  would have gone on to refinance those loans.  That could not be allowed to happen, because the loans would be paid off and the loans dissolved.  How do you stop someone from refinancing their loan?  Foreclose before they can.

They could not have anyone pulling the loans out of the Trusts that the loans had allegedly gone into, there was no money in the Trusts anyway.  The Banksters have a way of turning everything into a matter of profit.

Foreclosure Defense Nationwide – Jeff Barnes, Esq

 

Jeff Barnes, Esq. On the Ball! 

http://foreclosuredefensenationwide.com/?p=533

US BANK ADMITS, IN WRITING FROM THEIR CORPORATE OFFICE, THAT THE BORROWER IS A PARTY TO AN MBS TRANSACTION; THAT SECURITIZATION TRUSTEES ARE NOT INVOLVED IN THE FORECLOSURE PROCESS; HAVE NO ADVANCE KNOWLEDGE OF WHEN A LOAN HAS DEFAULTED; THAT THE “TRUE BENEFICIAL OWNERS” OF A SECURITIZED MORTGAGE ARE THE INVESTORS IN THE MBS; AND THAT THE GOAL OF A SERVICER IS TO “MAXIMIZE THE RETURN TO INVESTORS”                                                                                                                                                                                                 November 6, 2013

 We have been provided with a copy of U.S. Bank Global Corporate Trust Services’ “Role of the Corporate Trustee” brochure which makes certain incredible admissions, several of which squarely disprove and nullify the holdings of various courts around the country which have taken the position that the borrower “is not a party to” the securitization and is thus not entitled to discovery or challenges to the mortgage loan transfer process. The brochure accompanied a letter from US Bank to one of our clients which states: “Your account is governed by your loan documents and the Trust’s governing documents”, which admission clearly demonstrates that the borrower’s loan is directly related to documents governing whatever securitized mortgage loan trust the loan has allegedly been transferred to. This brochure proves that Courts which have held to the contrary are wrong on the facts. 

The first heading of the brochure is styled “Distinct Party Roles”. The first sentence of this heading states: “Parties involved in a MBS transaction include the borrower, the originator, the servicer and the trustee, each with their own distinct roles, responsibilities and limitations.” MBS is defined at the beginning of the brochure as the sale of “Mortgage Backed Securities in the capital markets”. The fourth page of the brochure also identifies the “Parties to a Mortgage Backed Securities Transaction”, with the first being the “Borrower”, followed by the Investment Bank/Sponsor, the Investor, the Originator, the Servicer, the Trust (referred to “generally as a special purpose entity, such as a Real Estate Mortgage Investment Conduit (REMIC)”), and the Trustee (stating that “the trustee does not have an economic or beneficial interest in the loans”). 

The second page sets forth that U.S. Bank, as Trustee, “does not have any discretion or authority in the foreclosure process.” If this is true, how can U.S. Bank as Trustee be the Plaintiff in judicial foreclosures or the foreclosing party in non-judicial foreclosures if it has “no authority in the foreclosure process”? 

The second page also states: “All trustees for MBS transactions, including U.S. Bank, have no advance knowledge of when a mortgage loan has defaulted.” Really? So when, for example, MERS assigns, in 2011, a loan to a 2004 Trust where the loan has been in default since 2008, no MBS “trustee” bank (and note that it says “All” trustees) do not know that a loan coming into the trust is in default? The trust just blindly accepts loans which may or may not be in default without any advanced due diligence? Right. Sure. Of course. LOL. 

However, that may be true, because the trustee banks do not want to know, for then they can take advantage of the numerous insurances, credit default swaps, reserve pools, etc. set up to pay the trust when loans are in default, as discussed below. 

The same page states that “Any action taken by the servicer must maximize the return on the investment made by the ‘beneficial owners of the trust’ — the investors.” The fourth page of the brochure states that the investors are “the true beneficial owners of the mortgages”, and the third page of the brochure states “Whether the servicer pursues a foreclosure or considers a modification of the loan, the goal is still to maximize the return to investors” (who, again, are the true beneficial owners of the mortgage loans). 

This is a critical admission in terms of what happens when a loan is securitized. The borrower initiated a mortgage loan with a regulated mortgage banking institution, which is subject to mortgage banking rules, regulations, and conditions, with the obligation evidenced by the loan documents being one of simple loaning of money and repayment, period. Once a loan is sold off into a securitization, the homeowner is no longer dealing with a regulated mortgage banking institution, but with an unregulated private equity investor which is under no obligation to act in the best interest to maintain the loan relationship, but to “maximize the return”. This, as we know, almost always involves foreclosure and denial of a loan mod, as a foreclosure (a) results in the acquisition of a tangible asset (the property); and (b) permits the trust to take advantage of reserve pools, credit default swaps, first loss reserves, and other insurances to reap even more monies in connection with the claimed “default” (with no right of setoff as to the value of the property against any such insurance claims), and in a situation where the same risk was permitted to be underwritten many times over, as there was no corresponding legislation or regulation which precluded a MBS insurer (such as AIG, MGIC, etc.) from writing a policy on the same risk more than once. 

As those of you know who have had Bloomberg reports done on securitized loans, the screens show loans which have been placed into many tranches (we saw one where the same loan was collateralized in 41 separate tranches, each of which corresponded to a different class of MBS), and with each class of MBS having its own insurance, the “trust” could make 41 separate insurance claims AND foreclose on the house as well! Talk about “maximizing return for the investor”! What has happened is that the securitization parties have unilaterally changed the entire nature of the mortgage loan contract without any prior notice to or approval from the borrower. 

There is no language in any Note or Mortgage document (DOT, Security Deed, or Mortgage) by which the borrower is put on notice that the entire nature of the mortgage loan contract and the other contracting party may be unilaterally changed from a loan with a regulated mortgage lender to an “investment” contract with a private equity investor. This, in our business, is called “fraud by omission” for purposes of inducing someone to sign a contract, with material nondisclosure of matters which the borrower had to have to make the proper decision as to whether to sign the contract or not. 

U.S. Bank has now confirmed, in writing from its own corporate offices in St. Paul, Minnesota, so much of what we have been arguing for years. This brochure should be filed in every securitization case for discovery purposes and opposing summary judgments or motions to dismiss where the securitized trustee “bank” takes the position that “the borrower is not part of the securitization and thus has no standing to question it.” U. S. Bank has confirmed that the borrower is in fact a party to an MBS transaction, period, and that the mortgage loan is in fact governed, in part, by “the Trust’s governing documents”, which are thus absolutely relevant for discovery purposes. 

Jeff Barnes, Esq.,

http://www.ForeclosureDefenseNationwide.com

From Living Lies – On Stopa’s Courage, and Appellate Court’s Bias

Attorney Mark Stopa Shows Guts Confronting Appellate Court Bias

Posted on October 4, 2013 by Neil Garfield 

http://livinglies.wordpress.com/2013/10/04/attorney-mark-stopa-shows-guts-confronting-appellate-court-bias/ 

I have just received a copy of a daring and tempestuous motion for rehearing en banc filed by the winner of the appeal. The homeowner won because of precedent, law and common sense; but the court didn’t like their own decision and certified an absurd question to the Florida Supreme Court. The question was whether the Plaintiff in a foreclosure case needs to have standing at the commencement of the action. Whether it is jurisdictional or not (I think it is clearly jurisdictional) Stopa is both right on the law and right on his challenge to the Court on the grounds of BIAS. 

The concurring opinion of the court actually says that the court is ruling for the homeowner because it must — but asserts that it is leading to a result that fails to expedite cases where the outcome of the inevitable foreclosure is never in doubt. In other words, the appellate court has officially taken the position that we know before we look at a foreclosure case that the bank should win and the homeowner should lose. The entire court should be recused for bias that they have put in writing. What homeowner can bring an action or defend an action where the outcome desired by the courts in that district have already decided that homeowners are deadbeats and their defenses are quite literally a waste of time? Under the rules, the Court should not hear the the motion for rehearing en banc, should vacate that part of the decision that sets up the rube certified question, and the justices who participated must be recused from hearing further appeals on foreclosure cases. 

Lest their be any mistake, and without any attempt to step on the toes of Stopa’s courageous brief on an appeal he already won, I wish to piggy back on his brief and expand certain points. The problem here might be the subject of a federal due process action against the state. Judges who have already decided foreclosure or mortgage litigation cases before they even see them are not fit to hear them. It IS that simple.

The question here was stated as the issue of standing at the commencement of the lawsuit. Does the bank need to have a claim before it files it? The question is so absurd that it is difficult to address without a joke. But this is not funny. The courts have rapidly evolved into a position that expedited decisions are better than fair decisions. There is NOTHING in the law that supports that position and thousands of cases that say the opposite is true under our system of law. Any judge who leans the other way should be recused or taken off the bench entirely. 

In lay terms, the Appellate Court’s certified question would allow anyone who thinks they might have a claim in the future to file the lawsuit now. And the Court believes this will relieve the clogged court calendars. If this matter is taken seriously and the Supreme Court accepts the certified question for serious review it will merely by acceptance be making a statement that makes it possible for all kinds of claims that anticipate an injury. 

It is bad enough that judges appear to be ignoring the requirement that there must be an allegation that a loan was made by the originating party and that the Plaintiff actually bought the loan. This was an obvious requirement that was consistently required in pleading until the courts were clogged with mortgage litigation, at which point the court system tilted far past due process and said that if the borrower stopped paying there were no conditions under which the borrower could win the case. 

It is bad enough that Judges appear to be ignoring the requirement that the allegation that the Plaintiff will suffer financial damage unless relief is granted. This was an obvious requirement that was consistently required in pleading until the mortgage meltdown. 

Why is this important? Because the facts will show that lenders consistently violated basic and advanced protections that have been federal and State law for decades. These violations more often than not produced an unenforceable loan — as pointed out in law suits by federal and state regulators, and as pointed out by the lawsuits of investors who were real lenders who are screwed each time the court enters foreclosure judgment in favor of the bank instead of the investor lenders. 

It is not the fault of borrowers that this mess was created. It is the fault of Wall Street Bankers who were working a scheme to defraud investors by diverting the real transaction and making it appear that the banks were principals in the loan transaction when in fact they were never real parties in interest. Nobody would seriously argue that this eliminates the debt. But why are we enforcing that debt with completely defective mortgage instruments in a process that confirms the fraud and ratifies it to the damage of investors who put up the money in the first place? The courts have made a choice that is unavailable in our system of law. 

This is also judicial laziness. If these justices want to weigh in on the mortgage mess, then they should have the facts and not the stories put forward by Wall Street that have been proven to be pure fiction, fabrication, lies and perjury. That the Court ignores what is plainly documented in hundreds of thousands of defective mortgage transactions and the behavior of banks that resulted in “strangers to the transaction” being awarded title to property — that presents sufficient grounds to challenge any court in the system on grounds of bias and due process. If ever we had a mass hysteria for prejudging cases, this is it. 

Neil Garfield | October 4, 2013 at 9:26 am | Tags: bias, Mark Stopa, motion for rehearing en banc, recusal, removal of judge, standing | Categories: CORRUPTION, Eviction, foreclosure, foreclosure mill, investment banking, Investor, MODIFICATION, Mortgage, Motions, Pleading, politics, securities fraud, Servicer | URL: http://wp.me/p7SnH-5GX

Why Does No One Do Anything?

Protesters Turned Into Those Whom They Were Protesting SUX!

BY NOOTKABEAR ON SEPTEMBER 30, 2013

You know, I have been thinking a lot lately about why it is that the Protesters from the 60′s and early 70′s are really pissing me off nowadays.   They act like a bunch of sheep or cattle.  The whole country is running amock and nobody says a damned thing about it.  IT SUX!  

I have come to the realization that the Protesters from the 60′-70′s turned into the very thing they were protesting, except even more so.  It SUX!

You would have thought that those protesters would have gone on to make a difference, and that there would not be all of this corruption that we deal with on a daily basis.  The flower children, peace – love and rock & roll.  What the hell happened?  Those people forgot everything about why they were protesting in the first place.  They forgot “let’s love one another”, forgot about “live and let live”.  Hell they are worse than the people they were protesting, because they are hypocrites.  

Now, they go sludging along, fuck it if everyone is being foreclosed upon, even if they paid for the property in full.  Fuck it if we have WWIII because our president is a fuck up.  Fuck it if Russia nukes us.  Fuck it if the Japanese have ended life on earth with their meltdown problem.  Fuck it if Russia’s Putin now speaks when the United States should have been speaking.  Fuck it if the Christians are being slaughtered.   Fuck it if there are no jobs.  Fuck it if Obamacare causes all of us to be denied healthcare we are entitled to.

Fuck it, Fuck it, fuck it.  THIS SUX!  This is not who we are.  This is not what are forefathers would have accepted.  This is not how we got to where we were.

So this week, the Protesters, turned cattle, sheep and couch potatoes are what SUX!!!

From the Very Well Known Foreclosure Defense Attorney, Stopa

Foreclosure Court: The Erosion of the Judiciary

http://www.stayinmyhome.com/foreclosure-court-the-erosion-of-the-judiciary/                                                                                                           Posted on September 2nd, 2013 by Mark Stopa 

I’m a big believer in the justice system.  In fact, that’s part of why I became a lawyer.  I believe in every litigant’s right to obtain a fair hearing and trial before a neutral judge and/or impartial jury.  It sounds cliché, but that’s what I do – help people navigate the judicial system in their time of need. 

In recent months, though, the judiciary in many parts of Florida (not all, but many) has turned into something I don’t recognize.  The change has been so sudden and so extreme that it’s altering the face of the judiciary and hindering that which I hold so dear – the right to fair hearings and due process.  Yes, what I consider the “core” of a fully-functioning judicial system is eroding. 

If you’re a Florida lawyer but you don’t handle foreclosure cases, you likely have no idea what I’m talking about.  After all, outside of foreclosure-world, Florida’s courts are operating like normal, business as usual.  Sure, the down economy has brought some minor changes, but all in all, our courts are functioning in a normal way. 

Foreclosure cases, though, are a totally different animal. 

I was chatting with a colleague the other day, an attorney who doesn’t handle foreclosure lawsuits, and he was shocked as I described the things I see in foreclosure court on a daily basis.  This is a seasoned attorney who was SHOCKED at what I see every day.  That made me realize … I’m not doing a good enough job of explaining the travesties I see every day in foreclosure-world. 

It’s a tough line to toe, frankly.  Bar rules prohibit me from disparaging any particular judge, so it’s sometimes difficult to explain what’s happening in foreclosure court without crossing that line.  In this blog, though, I’m going to toe that line.  Don’t misunderstand – I’m not criticizing anyone in particular.  Rather, my critique – and that’s what I see this as, a constructive critique, coupled with a hope that everyone will realize just how flawed our system has become – is aimed at the entire institution.  My concerns aren’t with any particular judge or any one ruling – they lie with the entire judicial system, the way the entire judiciary is operating right now, at least as it pertains to foreclosure cases. 

I know what you’re thinking.  I’m just a self-interested, foreclosure defense attorney who’s trying to delay foreclosures and let people live for free.  I’m upset because the courts are making that more difficult.  Right?

Before you blow off my concerns in that manner, you tell me.  Are my concerns legitimate?  Is this how a judicial system should operate?  You tell me … 

As a foreclosure defense lawyer, I’ve seen pro se homeowners attend hearings in their cases and not be allowed to speak.  Not one word.  It wasn’t that the judge didn’t hear the homeowner or didn’t realize he/she was present, either – the homeowner asked the judge to speak at a duly-noticed hearing and was not permitted to do so.  Homeowner loses, yet couldn’t say one word.  Isolated incident, you say?  I’ve personally seen it more than once. 

Not being permitted to speak has not been limited to pro se homeowners.  I have personally been threatened with criminal contempt – criminal contempt – for moving to disqualify a judge after striking my defenses without letting me say one word about those defenses.  Your defenses are stricken, you can’t talk, and if you complain about it, I’ll throw you in jail. 

In many parts of Florida, attorneys are not permitted to attend foreclosure hearings by phone – regardless of how insignificant or short the hearing may be.  Never mind that the Florida Supreme Court created a rule of judicial administration which requires phone appearances be permitted for hearings that are 15 minutes or less absent “good cause” – in many parts of Florida, attendance by phone is simply not permitted. 

I’ve heard some justify this procedure by explaining how it’s difficult to deal with phone appearances in foreclosure cases.  Really?  How is it any more difficult than in other types of cases?  Frankly, I can’t help but wonder if the prohibition on phone appearances is designed to make it harder for defense lawyers to appear in cases for homeowners, enabling the courts to push through those cases faster.  (Prohibiting phone appearances obviously makes it harder and more expensive to attend hearings, often making the difference in a homeowner’s ability to afford counsel.) 

That’s an absurd proposition, though, right?  Why would our courts care how quickly foreclosure lawsuits are litigated?  Judges are neutral arbiters – they don’t care how quickly the cases are adjudicated.  Do they? 

The answer to that question is at the heart of the problem.  In recent months, the Florida legislature has been putting immense pressure on Florida judges to clear the backlog of foreclosure lawsuits.  How much pressure?  Well, the legislature controls the amount of funding that goes to our courts – funding that is needed to retain new judges, senior judges, court staff, and clerks (basically, the funding necessary to keep all judges and JAs from being totally overwhelmed).  Unfortunately, the legislature has been giving these judges an ultimatum, kind of like parents do to their children regarding allowance.  Basically, it works like this … “if you don’t finish these foreclosure cases, we won’t give you more funding.”  As such, the legislature holds the judiciary hostage … if the judiciary doesn’t clear cases, then the legislature doesn’t give the judiciary the funding necessary to manage the many thousands of foreclosure lawsuits pending before it. 

Perhaps worse yet, and to my sheer disgust, I’m told the legislature recently cut the pay of Florida judges (for the first time in years), and the clear understanding was that it was done as a way to punish/blame the judges for not clearing up the backlog of foreclosure cases faster.  “You won’t enter judgments fast enough for our liking … we’ll cut your pay.” 

(The pay of Florida judges is public record, right?  Why is nobody talking about this?) 

The judicial system shouldn’t operate this way.  We all learned it in elementary school, how the three branches of government exist as “separate but equal” branches of government, employing a system of “checks and balances” to ensure a fully-functioning government.  But that’s not what’s happening right now, certainly not in foreclosure court.  In foreclosure-world, the legislature is king. 

You might think this is conjecture and speculation on my part.  It’s not.  I can’t go a week without hearing how the legislature is forcing judges to move cases.  Judges discuss it openly in open court, and not just to me – to everyone.  As a result of this dynamic – judges wanting to move cases – I see all sorts of crazy things I’d never see in any other area of law. 

I’ve mentioned the homeowners who can’t speak, the threats of incarcertaion, and the prohibition on phone appearances, but let’s get to some more egregious concerns. 

Judges sua sponte set trials in foreclosure cases (without a Notice of Trial having been filed, without a CMC or pretrial conference, and without discussing/clearing the date with an counsel).  This is now routine, virtually everywhere in the state. 

Judges sua sponte set trials in foreclosure cases where a motion to dismiss is outstanding and the defendant has not filed an answer. 

Judges sua sponte set trials with less than 30 days’ notice (such that, as defense counsel, you randomly receive a trial Order in the mail, reflecting you have a trial in 2 weeks). 

The sua sponte setting of trials dominates the landscape of foreclosure-world.  Banks often don’t want trials in foreclosure cases, but the judges will set them anyway.  Then, even when the plaintiffs are vocal about not wanting a trial in that particular case, judges often insist they go forward anyway.  Even stipulated/agreed Orders to continue a trial or vacate a trial Order often go unsigned. 

Sometimes, where trial has been set in violation of Rule 1.440, judges will recognize the error and fix it.  (The judges in Pinellas and Hillsborough in particular are good about this, striving to follow the law.)  In many others cases, though, judges will proceed with trial anyway.  In foreclosure circles, one county has become known for using a stamp – DENIED – right on the motion to vacate trial Order, without a hearing.  Case not at issue?  Doesn’t matter.  Less than 30 days’ notice?  Doesn’t matter.  Bank doesn’t want a trial?  Doesn’t matter.  We’re going to trial! 

Often, judges won’t proceed with trial where the defendant hasn’t filed an Answer but will essentially force the Answer to be filed forthwith.  How is this accomplished?  Easily – either deny the motion to dismiss (often without a hearing), or sua sponte set a CMC to ensure the case gets at issue.   Some courts use CMCs as a way to, in my view, browbeat parties into settling.  One county, for example, has started setting three CMCs at once – one per week for three consecutive weeks, requiring in-person attendance, at mass-motion calendars that last an hour or more, with no input from counsel on when the CMCs are scheduled.  You’re not available?  Too bad.  You don’t need a CMC three weeks in a row?  Yes, you do.  Your case will get at issue and it will be set for trial. 

Oh, and if you want to set a hearing in this county, you have to mail in a form – MAIL IN A FORM – and wait for them to respond to you, by mail, with a form that gives you a set hearing date, without any input from you on when that hearing takes place. 

What dominates the thinking from the judiciary – again, not my speculation, but something the judges openly discuss – is their desire to “close” cases.  That’s the monster that the legislature has created – evaluating the performance of judges not based on their work as judges but based on the results set forth in an Excel spreadsheet.  How many foreclosure lawsuits were filed in that county?  How many judgments have been entered?  If the ratio of judgments entered to cases filed is high enough, then the judges in that county are doing a good job and deserve more funding from the legislature.  If not, then those judges and JAs can all suffer through the many thousands of cases without more help. 

The dynamic is so perverse that I’ve seen judges refuse to cancel foreclosure sales even when both sides ask them to. 

Plaintiff’s lawyer:  “We don’t want this foreclosure sale to go forward, judge.” 

Defendant’s lawyer:  “We are living in this house.  We don’t want this foreclosure sale to go forward, judge.” 

Judge:  “Foreclosure sale will go forward as scheduled.” 

Huh? 

This dynamic is particularly difficult to take when the parties have reached a settlement.  For example, loan modifications sometimes happen after a judgment but before a sale.  That means, essentially, that both sides are willing to forego foreclosure with the homeowner resuming monthly mortgage payments.  Incredibly, based partly on their desire to “close” a case, some judges will force a foreclosure sale to go forward even when both parties don’t want it to, having settled their dispute via a loan modification. 

Plaintiff’s lawyer:  “We have agreed to a loan modification.  We want the foreclosure sale cancelled.” 

Defendant’s lawyer:  “We have agreed to a loan modification.  We want the foreclosure sale cancelled.” 

Judge:  “Foreclosure sale will go forward as scheduled.” 

Huh? 

Even when both sides are able to resolve disputes before trial, even then they sometimes can’t escape a dress-down from the judiciary.  For instance, I’ve watched judges threaten Bar grievances against lawyers – yes, Bar grievances – where they settled the lawsuit by consenting to a foreclosure judgment with a deficiency waiver and extended sale date.  Mind you, that’s a perfectly legitimate way to compromise and settle a foreclosure lawsuit – bank gets the house, homeowner avoids any further liability and gets to stay in the house longer so as to pack up and move – but the prospect of the sale date getting pushed out 4-5 months angers some judges.  “No, you can’t settle that way.  The sale has to happen sooner.”  Yes, I’ve seen settlements like this rejected with the sale set sooner than the parties agreed.

Huh? 

There’s absolutely no rule or law that requires a sale to happen sooner where the parties agree.  Unfortunately, the judges are motivated by having that case “closed” so the numbers on the spreadsheet look better for the legislature. 

My natural response is to lament the unfairness of it all.  After all, that homeowner gave up the chances of winning at trial predicated on getting more time in the house.  I find it terribly unfair that the homeowner gave up a right to trial in exchange for an extended sale date that the judge took away … right?  Some judges would scoff at that notion.  After all, I’ve heard several times, in open court, ”there is no defense to foreclosure,” or “I’ve never seen a valid defense to foreclosure,” or words of that ilk.  Never mind that I’ve had many dozens of foreclosure cases dismissed throughout Florida, including several at trial (25 different judges have dismissed a lawsuit of mine on paragraph 22 noncompliance, for example) … there is no valid defense to foreclosure and, hence, no reason for an extended sale date. 

Another county has become known for punishing any defendants who force a trial to proceed.  I personally observed the judge begin every hearing by telling the homeowners and their counsel that they “better” accept a 120-day extended sale date, as if that “offer” was rejected then it would be “off the table” after the trial.  The implication here was obvious to everyone in the room … You want to show up and force the bank to prove its case?  You’ll lose, and I’ll punish you by ruling against you and forcing you to move out sooner. 

Some would say that the way to deal with this madness is to appeal.  Easier said than done.  Homeowners facing foreclosure are often in no position to fund an appeal.  I’ve taken some appeals for free, but there’s only so many I can handle that way.  Oh, and even if you get beyond the issue of funding, go look for published decisions that are pro-homeowner in the First DCA, Third DCA, or Fifth DCA.  Many thousands of foreclosure cases have been adjudicated in those areas in the past several years.  How many favorable rulings do you think have come out of those jurisdictions during that time?  I’ll give you a hint – not many.  In many ways, appealing in those parts of the state is like standing at the bottom of Mount Everest and being told “climb.” 

Dealing with this dynamic has been very difficult in recent months.  It’s a hard pill to swallow.  It’s difficult to watch the judicial system bend at the direction of the legislature.  It’s tough to know the concept of “separation of powers” that we all learned in elementary school is being cast aside.  It’s hard to feel like the most fundamental concepts of due process are being sacrificed to push lawsuits faster when even the plaintiffs in those lawsuits don’t so desire.  It’s hard to feel like these procedures have made it impossible for me to help homeowners in certain parts of the state.  It’s frustrating that many reading this will be upset at the entire judiciary, not realizing there are many circuit judges – particularly in Hillsborough, Pinellas, and other areas within the ambit of Florida’s Second District – who are striving to be fair and follow the law notwithstanding all of the pressure from the legislature. 

Mostly, though, I’m disappointed.  I’m disappointed that such perverse procedures are happening in our courts every day yet nobody is talking about it – and many don’t even realize it’s happening.  I’m disappointed that the justice system I knew is eroding.  I’m not going to find a dictionary definition, but that’s what erosion is – a slow process of deterioration such that, before too long, that thing which previously existed is no more. 

I hope everyone shares this blog.  I hope my friends, colleagues, attorneys and homeowners all understand what’s happening in our courts.  I hope everyone stands up to the legislature and demands it stop this madness.  Most of all, I hope the erosion of our judiciary stops … soon.

 

Another Great Article From Living Lies, Telling It Like It Is!

 

LAST CHANCE FOR JUSTICE

Posted on August 19, 2013 by Neil Garfield

“We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy.” Neil Garfield, livinglies.me

We all know that dozens of people rose to power in Europe and Asia in the 1930′s and 1940′s who turned the world on its head and were responsible for the extermination of tens of millions of people. World War II still haunts us as it projected us into an arms race in which we were the first and only country to kill all the people who lived in two cities in Japan. The losses on both sides of the war were horrendous.
Some of us remember the revelations in 1982 that the United States actively recruited unrepentant Nazi officers and scientists for intelligence and technological advantages in the coming showdown with what was known as the Soviet Union. Amongst the things done for the worst war criminals was safe passage (no prosecution for war crimes) and even new identities created by the United States Department of Justice. Policy was created that diverted richly deserved consequences into rich rewards for knowledge. With WWII in the rear view mirror policy-makers decided to look ahead and prepare for new challenges.

Some of us remember the savings and loans scandals where banks nearly destroyed everything in the U.S. marketplace in the 1970′s and 1980′s. Law enforcement went into high gear, investigated, and pieced together the methods and complex transactions meant to hide the guilt of the main perpetrators in and out of government and the business world. More than 800 people went to jail. Of course, none of the banks had achieved the size that now exists in our financial marketplace.

Increasing the mass of individual financial institutions produced a corresponding capacity for destruction that eclipsed anything imagined by anyone outside of Wall Street. The exponentially increasing threat was ignored as the knowledge of Einstein’s famous equation faded into obscurity. The possibilities for mass destruction of our societies was increasing exponentially as the mass of giant financial service companies grew and the accountability dropped off when they were allowed to incorporate and even sell their shares publicly, replacing a system, hundreds of years old in which partners were ultimately liable for losses they created.

The next generation of world dominators would be able to bring the world to its knees without firing a shot or gassing anyone. Institutions grew as malignancies on steroids and created the illusion of contributing half our gross domestic product while real work, real production and real inventions were constrained to function in a marketplace that had been reduced by 1/3 of its capacity — leaving the banks in control of  $7 trillion per year in what was counted as gross domestic product. Our primary output by far was trading paper based upon dubious and fictitious underlying transactions; if those transactions had existed, the share of GDP attributed to financial services would have remained at a constant 16%. Instead it grew to half of GDP.  The “paradox” of financial services becoming increasingly powerful and generating more revenues than any other sector while the rest of the economy was stagnating was noted by many, but nothing was done. The truth of this “paradox” is that it was a lie — a grand illusion created by the greatest salesmen on Wall Street.

So even minimum wage lost 1/3 of its value adjusted for inflation while salaries, profits and bonuses were conferred upon people deemed as financial geniuses as a natural consequence of believing the myths promulgated by Wall Street with its control over all forms of information, including information from the government.

But calling out Wall Street would mean admitting that the United States had made a wrong turn with horrendous results. No longer the supreme leader in education, medical care, crime, safety, happiness and most of all prospects for social and economic mobility, the United States had become supreme only through its military strength and the appearance of strength in the world of high finance, its currency being the world’s reserve despite the reality of the ailing economy and widening inequality of wealth and opportunity — the attributes of a banana republic.

All of us remember the great crash of 2008-2009. It was as close as could be imagined to a world wide nuclear attack, resulting in the apparent collapse of economies, tens of millions of people being reduced to poverty, tossed out of their homes, sleeping in cars, divorces, murder, riots, suicide and the loss of millions of jobs on a rising scale (over 700,000 per month when Obama took office) that did not stop rising until 2010 and which has yet to be corrected to figures that economists say would mean that our economy is functioning at proper levels. Month after month more than 700,000 people lost their jobs instead of a net gain of 300,000 jobs. It was a reversal of 1 million jobs per month that could clean out the country and every myth about us in less than a year.

The cause lay with misbehavior of the banks — again. This time the destruction was so wide and so deep that all conditions necessary for the collapse of our society and our government were present. Policy makers, law enforcement and regulators decided that it was better to maintain the illusion of business as usual in a last ditch effort to maintain the fabric of our society even if it meant that guilty people would go free and even be rewarded. It was a decision that was probably correct at the time given the available information, but it was a policy based upon an inaccurate description of the disaster written and produced by the banks themselves. Once the true information was discovered the government made another wrong turn — staying the course when the threat of collapse was over. In a sense it was worse than giving Nazi war criminals asylum because at the time they were protected by the Department of Justice their crimes were complete and there existed little opportunity for them to repeat those crimes. It could be fairly stated that they posed no existing threat to safety of the country. Not so for the banks.

Now as all the theft, deceit and arrogance are revealed, the original premise of the DOJ in granting the immunity from prosecution was based upon fraudulent information from the very people to whom they were granting safe passage. We have lost 5 million homes in foreclosure from their past crimes, but we remain in the midst of the commission of crimes — another 5 million illegal, wrongful foreclosures is continuing to wind its way through the courts.

Not one person has been prosecuted, not one statement has been made acknowledging the crimes, the continuing deceit in sworn filings with regulators, and the continuing drain on the economy and our ability to finance and capitalize on innovation to replace the lost productivity in real goods and services.

We are still in the death grip of the banks as they attempt to portray themselves as the bulwarks of society even as they continue to rob us of homes, lives, jobs and vitally needed capital which is being channeled into natural resources so that when we commence the gargantuan task of repairing our infrastructure we can no longer afford it and must borrow the money from the thieves who created the gaping hole in our economy threatening the soul of our democracy. If the crimes were in the rear view mirror one could argue that the policy makers could make decisions to protect our future. But the crimes are not just in the rear view mirror. More crimes lie ahead with the theft of an equal number of millions of homes based on false and wrongful foreclosures deriving their legitimacy from an illusion of debt — an illusion so artfully created that most people still believe the debts exist. Without a very sophisticated knowledge of exotic finance it seems inconceivable that a homeowner could receive the benefits of a loan and at the same time or shortly thereafter have the debt extinguished by third parties who were paid richly for doing so.

Job creation would be unleashed if we had the courage to stop the continuing fraud. It is time for the government to step forward and call them out, stop the virtual genocide and let the chips fall where they might when the paper giants collapse. It’s complicated, but that is your job. Few people lack the understanding that the bankers behind this mess belong in jail. This includes regulators, law enforcement and even judges. but the “secret” tacit message is not to mess with the status quo until we are sure it won’t topple our whole society and economy.

The time is now. If we leave the bankers alone they are highly likely to cause another crash in both financial instruments and economically by hoarding natural resources until the prices are intolerably high and we all end up pleading for payment terms on basic raw materials for the rebuilding of infrastructure. If we leave them alone another 20 million people will be displaced as more than 5 million foreclosures get processed in the next 3-4 years. If we leave them alone, we are allowing a clear and present danger to the future of our society and the prospects for safety and world peace. Don’t blame Wall Street — they are just doing what they were sent to do — make money. You don’t hold the soldier responsible for firing a bullet when he was ordered to do so. But you do blame the policy makers that him or her there. And you stop them when the policy is threatening another crash.

Stop them now, jail the ones who can be prosecuted, and take apart the large banks. IMF economists and central bankers around the world are looking on in horror at the new order of things hoping that when the United States has exhausted all other options, they will finally do the right thing. (see Winston Churchill quote to that effect).

But forget not that the ultimate power of government is in the hands of the people at large and that the regulators and law enforcement and judges are working for us, on our nickle. Action like Occupy Wall Street is required and you can see the growing nature of that movement in a sweep that is entirely missed by those who arrogantly pull the levers of power now. OWS despite criticism is proving the point — it isn’t new leaders that will get us out of this — it is the withdrawal of consent of the governed one by one without political affiliation or worshiping sound sound biting, hate mongering politicians.

People have asked me why I have not until now endorsed the OWS movement. The reason was that I wanted to give them time to see if they could actually accomplish the counter-intuitive result of exercising power without direct involvement in a corrupt political process. They have proven the point and they are likely to be a major force undermining the demagogues and greedy bankers and businesses who care more about their bottom line than their society that gives them the opportunity to earn that bottom line.

New Fraud Evidence Shows Trillions Of Dollars In Mortgages Have No Owner
http://thinkprogress.org/economy/2013/08/13/2460891/new-fraud-evidence-shows-trillions-of-dollars-in-mortgages-have-no-owner/

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Bank of America whistle-blowers By David Dayen Great Story!

(Credit: Sashkin via Shutterstock/Salon)

Bank of America’s mortgage servicing unit systematically lied to homeowners, fraudulently denied loan modifications, and paid their staff bonuses for deliberately pushing people into foreclosure: Yes, these allegations were suspected by any homeowner who ever had to deal with the bank to try to get a loan modification – but now they come from six former employees and one contractor, whose sworn statements were added last week to a civil lawsuit filed in federal court in Massachusetts.

“Bank of America’s practice is to string homeowners along with no apparent intention of providing the permanent loan modifications it promises,” said Erika Brown, one of the former employees. The damning evidence would spur a series of criminal investigations of BofA executives, if we still had a rule of law in this country for Wall Street banks.

The government’s Home Affordable Modification Program (HAMP), which gave banks cash incentives to modify loans under certain standards, was supposed to streamline the process and help up to 4 million struggling homeowners (to date, active permanent modifications numberabout 870,000). In reality, Bank of America used it as a tool, say these former employees, to squeeze as much money as possible out of struggling borrowers before eventually foreclosing on them. Borrowers were supposed to make three trial payments before the loan modification became permanent; in actuality, many borrowers would make payments for a year or more, only to find themselves rejected for a permanent modification, and then owing the difference between the trial modification and their original payment. Former Treasury Secretary Timothy Geithner famously described HAMP as a means to “foam the runway” for the banks, spreading out foreclosures so banks could more readily absorb them.

These Bank of America employees offer the first glimpse into how they pulled it off. Employees, many of whom allege they were given no basic training on how to even use HAMP, were instructed to tell borrowers that documents were incomplete or missing when they were not, or that the file was “under review” when it hadn’t been accessed in months. Former loan-level representative Simone Gordon says flat-out in her affidavit that “we were told to lie to customers” about the receipt of documents and trial payments. She added that the bank would hold financial documents borrowers submitted for review for at least 30 days. “Once thirty days passed, Bank of America would consider many of these documents to be ‘stale’ and the homeowner would have to re-apply for a modification,” Gordon writes. Theresa Terrelonge, another ex-employee, said that the company would consistently tell homeowners to resubmit information, restarting the clock on the HAMP process.

Worse than this, Bank of America would simply throw out documents on a consistent basis. Former case management supervisor William Wilson alleged that, during bimonthly sessions called the “blitz,” case managers and underwriters would simply deny any file with financial documents that were more than 60 days old. “During a blitz, a single team would decline between 600 and 1,500 modification files at a time,” Wilson wrote. “I personally reviewed hundreds of files in which the computer systems showed that the homeowner had fulfilled a Trial Period Plan and was entitled to a permanent loan modification, but was nevertheless declined for a permanent modification during a blitz.” Employees were then instructed to make up a reason for the denial to submit to the Treasury Department, which monitored the program. Others say that bank employees falsified records in the computer system and removed documents from homeowner files to make it look like the borrower did not qualify for a permanent modification.

Senior managers provided carrots and sticks for employees to lie to customers and push them into foreclosure. Simone Gordon described meetings where managers created quotas for lower-level employees, and a bonus system for reaching those quotas. Employees “who placed ten or more accounts into foreclosure in a given month received a $500 bonus,” Gordon wrote. “Bank of America also gave employees gift cards to retail stores like Target or Bed Bath and Beyond as rewards for placing accounts into foreclosure.” Employees were closely monitored, and those who didn’t meet quotas, or who dared to give borrowers accurate information, were fired, as was anyone who “questioned the ethics … of declining loan modifications for false and fraudulent reasons,” according to William Wilson.

Bank of America characterized the affidavits as “rife with factual inaccuracies.” But they match complaints from borrowers having to resubmit documents multiple times, and getting denied for permanent modifications despite making all trial payments. And these statements come from all over the country from ex-employees without a relationship to one another. It did not result from one “rogue” bank branch.

Simply put, Bank of America didn’t want to hire enough staff to handle the crush of loan modification requests, and used these delaying tactics as a shortcut. They also pushed people into foreclosure to collect additional fees from them. And after rejecting borrowers for HAMP modifications, they would offer an in-house modification with a higher interest rate. This was all about profit maximization. “We were regularly drilled that it was our job to maximize fees for the Bank by fostering and extending delay of the HAMP modification process by any means we could,” wrote Simone Gordon in her affidavit.

It is a testament to the corruption of the federal regulatory and law enforcement apparatus that we’re only hearing evidence from inside Bank of America now, in a civil class-action lawsuit from wronged homeowners, when the behavior was so rampant for years. For example, the Treasury Department, charged with specific oversight for HAMP, didn’t sanction a single bank for failing to follow program guidelines for three years, and certainly did not uncover any of this criminal conduct. Steven Cupples, a former underwriter at Bank of America, explained in his statement how the bank falsified records to Treasury to make it look like they granted more modifications. But Treasury never investigated. Meanwhile, the Justice Department joined with state Attorneys General and other federal regulators to essentially bless this conduct in a series of weak settlements that incorporated other bank crimes as well, like “robo-signing” and submitting false documents to courts.

These affidavits, however, should return law enforcement to the case. William Wilson, the case management supervisor, alleges in his statement that this “ridiculous and immoral” conduct continued through August of 2012, when he was eventually fired for speaking up. That means Bank of America persisted with these activities for at least six months AFTER the main, $25 billion settlement to which they were a party. So state and federal regulators could sue Bank of America over this new criminal conduct, which post-dates the actions for which they released liability under the main settlement. Attorneys general in New York and Florida have accused Bank of America of violating the terms of the settlement, but they could simply open new cases about these new deceptive practices.

They would have no shortage of evidence, in addition to the sworn affidavits. According to Theresa Terrelonge, most loan-level representatives conducted their business through email; in fact, various email communications have already been submitted under seal in the Massachusetts civil case. State Attorneys General or US Attorneys would have subpoena power to gather many more emails.

And they would have very specific targets: the ex-employees listed specific executives by name who authorized and directed the fraudulent process. “The delay and rejection programs were methodically carried out under the overall direction of Patrick Kerry, a Vice President who oversaw the entire eastern region’s loan modification process,” wrote William Wilson. Other executives mentioned by name include John Berens, Patricia Feltch and Rebecca Mairone (now at JPMorgan Chase, and already named in a separate financial fraud case). These are senior executives who, if this alleged conduct is true, should face criminal liability.

Bank accountability activists have already seized on the revelations. “This is not surprising, but absolutely sickening,” said Peggy Mears, organizer for the Home Defenders League. “Maybe finally our courts and elected officials will stand with communities over Wall Street and prosecute, and then lock up, these criminals.”

Sadly, it’s hard to raise hopes of that happening. Past experience shows that our top regulatory and law enforcement officials are primarily interested in covering for Wall Street’s crimes. These well-sourced allegations amount to an accusation of Bank of America stealing thousands of homes, and lying to the government about it. Homeowners who did everything asked of them were nevertheless pushed into foreclosure, all to fortify profits on Wall Street. There’s a clear path to punish Bank of America for this conduct. If it doesn’t result in prosecutions, it will once again confirm the sorry excuse for justice we have in America.

Update: Read the full affidavits from the active court case here.

David Dayen is a freelance writer based in Los Angeles, CA. Follow him on Twitter at @ddayen.MORE DAVID DAYEN.