18th Judicial Circuit of FL_BofA v. Nash_Void Mortgage, Void Note & Reverse Judgment for Payments Made

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Posted on by Neil Garfield

Hat Tip to Patrick Giunta, Esq., Senior litigator and manager of litigation for the livinglies team.

When I said that lawyers should be counterclaiming for unlawful collection of payments by the servicer and related parties back in 2008, most people simply thought I was nuts and others were more generously skeptical. Everyone said “show me a case” which of course I could not because this scheme had never been played before and it has taken 7 years for courts to piece it together.

In the case we will discuss tonight briefly as I take more time to answer questions from the audience, we will see how the senior Judge in Seminole County carefully detailed the events and documents and concluded that the foreclosure was a farce — but more than that, the mortgage and note were a farce and declared them void. In addition, the Judge not only entered judgment for the homeowner on the issue of foreclosure but also granted a money judgment FOR THE BORROWER AGAINST BANK OF AMERICA for all payments made to Bank of America as successor or formerly known as Countrywide formerly known, but not registered or incorporated as America’s Wholesale Lender — which did not exist.

The conclusion of the Judge is that if the entity named on the note or mortgage does not exist, then neither does the note or mortgage. And any payments squeezed out of unwary borrowers are due back to the borrower because he might need them some day if someone actually makes a claim that is true. Thus at common law we have the very same remedy that was intended by the Truth in Lending Act under the right of rescission.

Hence the upcoming US Supreme Court decision probably doesn’t matter all that much although they should affirm the express wording of the statute even if they think the homeowner is getting a windfall. That is an erroneous assumption against the borrower — just as erroneous as assuming the loan documents were ever valid.

Sorry to be so immature, but I TOLD YOU SO!!!

Now when bankruptcy lawyers and foreclosure defense lawyers are preparing their pleadings and schedules they best look at whether there is an actual loan from an actual entity at the base of the chain relied upon by the foreclosing party.

Debt collectors harass Americans even after they have lost their homes to banks

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Reuters – Michelle Conlin

NEW YORK, (Reuters) – Many thousands of Americans who lost their homes in the housing bust, but have since begun to rebuild their finances, are suddenly facing a new foreclosure nightmare: debt collectors are chasing them down for the money they still owe by freezing their bank accounts, garnishing their wages and seizing their assets.

Dept. of common sense

By now, banks have usually sold the houses. But the proceeds of those sales were often not enough to cover the amount of the loan, plus penalties, legal bills and fees. The two big government-controlled housing finance companies, Fannie Mae and Freddie Mac, as well as other mortgage players, are increasingly pressing borrowers to pay whatever they still owe on mortgages they defaulted on years ago.

Using a legal tool known as a “deficiency judgment,” lenders can ensure that borrowers are haunted by these zombie-like debts for years, and sometimes decades, to come. Before the housing bubble, banks often refrained from seeking deficiency judgments, which were seen as costly and an invitation for bad publicity. Some of the biggest banks still feel that way.

But the housing crisis saddled lenders with more than $1 trillion of foreclosed loans, leading to unprecedented losses. Now, at least some large lenders want their money back, and they figure it’s the perfect time to pursue borrowers: many of those who went through foreclosure have gotten new jobs, paid off old debts and even, in some cases, bought new homes.

Just because they don’t have the money to pay the entire mortgage, doesn’t mean they don’t have enough for a deficiency judgment,” said Florida foreclosure defense attorney Michael Wayslik.

Advocates for the banks say that the former homeowners ought to pay what they owe. Consumer advocates counter that deficiency judgments blast those who have just recovered from financial collapse back into debt – and that the banks bear culpability because they made the unsustainable loans in the first place.

“SLAPPED TO THE FLOOR”

Borrowers are usually astonished to find out they still owe thousands of dollars on homes they haven’t thought about for years. In 2008, bank teller Danell Huthsing broke up with her boyfriend and moved out of the concrete bungalow they shared in Jacksonville, Florida. Her name was on the mortgage even after she moved out, and when her boyfriend defaulted on the loan, her name was on the foreclosure papers, too.

She moved to St. Louis, Missouri, where she managed to amass $20,000 of savings and restore her previously stellar credit score in her job as a service worker at an Amtrak station.

But on July 5, a process server showed up on her doorstep with a lawsuit demanding $91,000 for the portion of her mortgage that was still unpaid after the home was foreclosed and sold. If she loses, the debt collector that filed the suit can freeze her bank account, garnish up to 25 percent of her wages, and seize her paid-off 2005 Honda Accord.

For seven years you think you’re good to go, that you’ve put this behind you,” said Huthsing, who cleared her savings out of the bank and stowed the money in a safe to protect it from getting seized. “Then wham, you get slapped to the floor again.”

Bankruptcy is one way out for consumers in this rub. But it has serious drawbacks: it can trash a consumer’s credit report for up to ten years, making it difficult to get credit cards, car loans or home financing. Oftentimes, borrowers will instead go on a repayment plan or simply settle the suits – without questioning the filings or hiring a lawyer – in exchange for paying a lower amount.

Though court officials and attorneys in foreclosure-ravaged regions like Florida, Ohio and Illinois all say the cases are surging, no one keeps official tabs on the number nationally. “Statistically, this is a real difficult task to get a handle on,” said Geoff Walsh, an attorney with the National Consumer Law Center.

Link to full story here

Do Banks Lose Money or Make Money on Foreclosures?

Originally posted on Real Estate Justice For ALL!:

Reality NOT on TV – Banks Make Money on Foreclosures

by Mario Kenny
http://mariokenny.wordpress.com

DETROIT, MI – Wouldn’t it be fun to take the CEO’s of Chase, Bank
of America, Citibank and Wells Fargo, hold them somewhere with just the
bare living essentials and force them to negotiate loan modifications
and short sales with their own customer service departments to earn
their freedom? Imagine their frustration as they have to wait on hold forever,
speak with poorly trained, clueless staff who can’t find the documents
they’ve faxed or emailed for the umpteenth time and have to keep
starting over.

It’d make a great movie! We could call it, “Groundhog Accountability Day for Bank Executives”.

“Sigh”. Unfortunately, that’s a fantasy and reality is what we have to deal with. Why are the big banks so difficult to deal with? Why don’t they seem
to understand that they lose more money when they…

View original 484 more words

Virginia drops JPMorgan from mortgage securities fraud lawsuit

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Sept. 22, 2014
Full link here

Virginia Attorney General Mark R. Herring (D) on Monday dropped JPMorgan Chase from a mortgage securities lawsuit against the country’s biggest banks, after learning that his predecessor Ken Cuccinelli (R) had already struck a “confidential” settlement with the bank.

JP Morgan

The decision comes a week after Herring announced a $1.15 billion lawsuit against 13 of the country’s biggest banks for misleading a state retirement fund about the quality of bonds made up of residential mortgages.

JPMorgan and its Washington Mutual subsidiary were named in the suit, along with Citigroup and Bank of America, for packaging faulty home loans into securities sold to the Virginia Retirement System (VRS).

jpMorgan-pic2-224x300

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*What the story does not tell you is that in order to obtain 90 x 1 leverage the same securities were sold many Many times over to retirement funds, pensions AND securities investors. See here for more info: http://tawebster.wordpress.com/2010/11/22/what-is-jp-morgan-chase/ for more info.

*A better explanation of the reason for the lawsuit.
http://stellionata.com/in-the-news/8935-virginia-sues-13-banks-for-1-15b-alleging-rmbs-fraud-national-mortgage-news

*Why it is important to understand documentation and possible deficiencies.
http://livinglies.wordpress.com/2014/10/15/breakdown-of-the-robo-signing-scandal-settlement-another-elephant-in-the-living-room/

Bank Of America Settlement Looks Impressive But Maybe Its Time To Take One Of These Cases To Trial

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August 21, 2014dannlaw

I should be excited about the nearly $17 Billion Settlement agreement between Bank of America and the U.S. Department of Justice announced yesterday. I am happy for our clients here in Ohio facing foreclosure because according to initial press reports, the agreement, like previous agreements with Citibank ($7 Billion) and Chase ($13 Billion)

boa_whistleblower

 Anyone facing difficulty paying their Bank of America, Countrywide or America’s Wholesale Lender originated mortgage or who is in foreclosure currently, even though those companies are no longer involved as an investor or servicer of their loan should wait if possible until this new settlement agreement takes hold to see if there is an opportunity to negotiate a better outcome. If this agreement is anything like the National Mortgage Settlement it may require persistence and the assistance of a lawyer to access the benefits that the government has negotiated for you in this settlement.

 

My guess is that as in prior settlements DOJ left too much discretion in the hands of the Defendant in the case Bank of America to pick and choose who they will help.

 

But despite the good news, I have some serious concerns about these settlements. These pacts are about the origination and securitization of hundreds of thousand of fraudulent and unsuitable mortgages to American Consumers and their sale to unsuspecting investors throughout the world that nearly caused the collapse of the US economy in 2008. The illegal and possibly criminal conduct of these bad actors left millions of Americans financially insecure, caused a depression of the housing market that continues to this day and have cost investors and homeowners billions of their hard earned dollars.

 

What disturbs me the most is that theses settlements have been reached before a lawsuit was filed against the banks. If a complaint laying out the government’s case against Chase, and Citi and BOA had been filed before settlement, the public and future generations would have had a chance to see the unfiltered findings about the conduct of these bad actors by the Department of Justice and 50 State Attorneys General who participated in the settlement. If any of these cases had actually gone to trial, whether the government had won or lost, the adversary process would have revealed a much more realistic picture of what actually happened between 2001 and 2008 that caused the apocalyptic collapse in 2008.

 

For the agreements to come to fruition, a formal complaint and consent judgment entry will have to be filed but that complaint will be carefully drafted with the consent of Bank of America. Just as the complaints and agreements in the Chase and Citi cases were drafted jointly by lawyers for the DOJ and those banks. Historians, legal scholars and future market participants trying to determine the parameters of proper conduct will be left without the guidance that a contested trial, judgment and decision of a court of appeals could provide to how such market participants acted to incur such massive liability and how they should act in the future to avoid causing such pain and hardship to future consumers and investors. The New York Times addressed this risk of the Bank of America Settlement and other settlement on the eve of yesterday’s announcements.

 

In defending individual homeowners in foreclosure, bringing claims under state and federal consumer protection laws and civil tort claims we are taking cases to trial in Ohio every day setting standards for everything for who has standing to enforce a note and mortgage to what kind evidence a lender is required to proffer to establish a default on a mortgage or compliance with federal regulations that govern the enforcement of FHA or VA loans. These trials, decisions and appeals will provide a chronicle of the abuses of the past and a roadmap for proper conduct for mortgage lenders for the future.

 

We should expect no less from the United States Department of Justice and the State Attorney General Partners.

 

Marc Dann

 

mdann@dannlaw.com

 

877-475-8100

 

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