Posted on 06/06/2010 6:42:28 AM PDT by Chunga85
(St. George, UT) June 5, 2010 – A court order issued by Fifth District Court Judge James L. Shumate May 22, 2010 in St. George, Utah has stopped all foreclosure proceedings in the State of Utah by Bank of America Corporation, ; Recontrust Company, N.A; Home Loans Serving, LP; Bank of America, FSB;
snip>
The attorney’s for Bank of America promptly filed to move the case to federal court to avoid having to deal with the Judge who is not unaccustomed to high profile cases and has a history of watching out for the “little people” and citizen’s rights.
(Excerpt) Read more at kcsg.com ...
I'm not disputing the need to abide by the State banking laws. The problem is if you separate the legal position of the note holder and the loan processor then it will become very difficult to foreclose. If Banks can't recapitalize home loans will dry up, or Fannie & Freddie will dictate terms on a national basis. Today Fannie & Freddie buy about 92% of the residential loans.
Another classmate of NObama at Columbia or Harvard?
It’s FORECLOSURE OF THE WEEK! A new, exciting, EXTREME Reality Show!
Welcome to the debut episode of a new and exciting reality game show!
This idea came about when I was reviewing this long list of properties up for auction, shaking my head in great disbelief over this weekly abomination in one county, in one state.
Contestants! Are you ready?
{Cue theme music from The Shining}
FORECLOSURE OF THE WEEK!
This ain’t no Candyland game.
Each week, right here in our own Foreclosure Hamlet, we’ll be randomly picking a recent foreclosure, plucked right out of the public records, and doing a little check into the background of that specific foreclosure. Doubt that we’ll ever find anything not quite on the up-n-up, but in the event that we do........well, then a check of the court file might be in order! Some fellow internet sleuths might want to join in on the fun and games to help solve some of the mystique and intrigue that defines whole of the Foreclosure Catastrophe.
Contestants may use any of the following tools at their disposal:
* court dockets
* court files
* documents recorded with the county clerk’s office
* property appraiser’s records
* MERS MIN Look Up Tool
* Freddie Mac Look Up Tool
* Fannie Mae Look Up Tool
* the whole of the internet
*
*
So without further ado........................
The Foreclosure of the Week The DeLima home
FROM PROPERTY APPRAISER WEBSITE:
All Sales
Sales Date Book/page Price Sale Type Owner
Jun-2009 $142,000 WARRANTY DEED STORKEL KURT
May-2009 $100 CERT OF TITLE BANK OF NEW YORK MELLON
Aug-2005 $349,900 WARRANTY DEED DELIMA DANIEL
Jul-2001 $150,000 WARRANTY DEED FILHO TRAJANO C
Jul-1995 $113,000 WARRANTY DEED
May-1988 $106,000 WARRANTY DEED
Dec-1986 $95,000 WARRANTY DEED
FROM OFFICIAL RECORDS WEBSITE
Here are DeLima’s original mortgages that were recorded on 9/13/09, his Lis Pendens filed on 10/15/09 and then his judgment filed on 3/24/09.
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC 09/13/2005 MTG
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC 09/13/2005 MTG
BANK OF NEW YORK MELLON TRUSTEE 10/15/2008 LP
BANK OF NEW YORK MELLON TRUSTEE 03/24/2009 JUD
Looking at the documents, DeLima purchased the home for (2005 Sept 13 Dilima 349.9K.pdf) $349,900 on 8/9/2009. He was given two mortgages to total 100% of the purchase price. I know many people who were given their home financing this way, without ever receiving a clear explanation from their mortgage brokers.
8/9/2005 (2005 Aug 9 279.9K.pdf) First Mortgage MERS as Nominee for SouthStar Funding for $279,900 (apparently an ARM)
8/9/05 (2005 Aug 9 70K.pdf) Second Mortgage MERS as Nominee for SouthStar Funding for $70,000 (apparently a HELOC)
10/7/08 (2008 Oct 7 LP.pdf) Lis Pendens was filed on the First Mortgage
10/7/08 Foreclosure suit was filed on for the first mortgage _______ (will have to check the court file to get the exact amount for which DeLima was being sued.
10/11/08 DeLima was served
1/12/09 Default entered (DeLima did not respond in any way to the complaint)
3/16/09 Summary Judgment Granted
3/19/09 Bank filed “Loan Documents” with the court. I’ll have to check the court file to see if that’s some cute euphemism for the “Original Note”?
22 NOF - NOTICE OF FILING
Filing Date: 19-MAR-2009
Filing Party: BANK OF NEW YORK MELLON,
Disposition Amount:
Docket Text: LOAN DOCUMENTS
3/19/09 (2009 Mar 16 Delima Judgment first mort 349K.pdf) Final Judgment Entered for $347,712.36 (? I’m not quite sure how the total judgment amount got to be this high! The (2005 Aug 9 279.9K.pdf) original first mortgage in 2005 was for $279,900. Contestants, click the link and let’s figure that out!)
5/12/09 Home sold at “auction” (2009 May 13 Title to Bank by Foreclosure 100 dollars.pdf) to Bank for $100
7/17/09 (2009 July 17 Storkel 142K.pdf) Home sold to new owner for $142K. Wow! Superfast turn around time in this overloaded market! And, lookie at that free fall of value! Hmmmm, wonder about the 2005 appraisal?
I’m a little confused by the second page of the new Mortgage though. Contestants, again, please help me out.
Okay, follow along with me here:
Plaintiff was The Bank of New York Mellon Formerly Known as the Bank of New York as Successor Trustee to JP Morgan Chase Bank NA as Trustee for Structured Asset Mortgage Investments III Trust 2005-AR7 Mortgage Pass-Through Certificates Series 2005-AR7 (WHEW! Contestants, please allow me to use “Plaintiff” instead of typing that out each time I refer to the foreclosing entity.)
Plaintiff got the title.
Then, EMC Mortgage Corporation “as attorney in fact for”, which I *think* is a mortage servicer company, executes (2009 July 17 Storkel 142K.pdf) the new Deed to the new owner.
EMC, a Delaware Corporation per their corporate seal, executed this document in Dalton, Texas. The document was prepared by Sunbelt Title Agency in Clearwater, Florida. The deed is for a property in Boca Raton, Florida. The Plaintiff is a New York entity and was represented on this deed by a Vice President, Terence Free, who apparently flew to Texas to execute this document. I mean, it sounds awfully messed up, but it’s gotta be clean because......well, we all know that it’s a 2nd degree felony to fool around with recorded mortgages.
817.545 Mortgage fraud.–
(2) (d) Files or causes to be filed with the clerk of the circuit court for any county of this state a document involved in the mortgage lending process which contains a material misstatement, misrepresentation, or omission.
(5)(a) Any person who violates subsection (2) commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Any person who violates subsection (2), and the loan value stated on documents used in the mortgage lending process exceeds $100,000, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
I’m sure this makes perfect sense to all of you in the know out there in Blogosphere! Of course, I’m sure there’s a reasonable explanation, right?
Please!
Quick!
Enlighten me!
And, while you’re at it: I wonder how EMC transmitted the $142,000 in funds from the new buyer to the Plaintiff (seeing as how the Plaintiff was represented in a state court of law in front of a judge to be the holder in due course and due the proceeds from any foreclosure action)?
Plus, Florida being a deficiency state, DeLima owes $230,000 deficiency! Oh, would that be owed to Plaintiff Bank or to EMC? Again, so confusing!
OH, and what about that $70K “second mortgage”?
And, seriously, how does one take out a loan for $279,000 in 2005, make monthly payments for 2.5 years, and then end up with a foreclosure judgment for $347,712? That foreclosure cost DeLima $68,712 (which is factored into that $230K deficiency), on top of the loss of the home & the payments he’d made over the previous 2.5 years!
* Loss of home
* Deficiency of $230K (includes $68,712 strangely added to the first mortgage balance)
* Pending collection of $70K second mortgage
* ___________________________________
And there you have it Ladies and Gentlemen!
Our first episode of FORECLOSURE OF THE WEEK!
How’s that for an Extreme Reality Show?
Please join in! There’s a brainteaser puzzle here. Most every foreclosure today holds secrets, a maze of behind-the-scenes profit taking and illegalities.
Contestants, the starting gun has been fired! YOUR home may be next up on FORECLOSURE OF THE WEEK!
http://www.foreclosurehamlet.org/profiles/blogs/122009-its-foreclosure-of-the
It’s not my work but that of another member on our site.
If you click the link you will find it is completely interactive and will bring you to the actual court filings.
If it weren’t true it would be funny!
What happens if your mortgage and promissory note were properly issued and recorded along with a lien on the property. The mortgage was subsequently sold and collateralized and payments collected by a loan servicing company with no ownership in the actual note. When the final note is paid, what entity is responsible for and has the legal authority to release the recorded lien? Is there a real possibility that when many homeowners think they have paid off their mortgages, they will have problems receiving clear title to the property?
The item I highlighted has some startling implications, doesn't it?
I see the point of the State Laws...
The trust deed secures the note. If someone SELLS the note but retains the trust deed, the person who owns the NOTE has recourse ONLY to the holder of the TRUST DEED. Not to the property owner. The note - split - becomes unsecured, as written in the statute.
Doing things this way was a shortcut, to make a MARKET out of bundled notes. Not the original intent of the transaction, for sure on the part of the borrower. But something the big bank wanted to do to make mass money off of individualized transactions.
Splitting the note from the deed leaves the note unsecured. If they wanted to sell the bundled notes, they needed to and should have transfered all the supporting deeds, to follow the rules.
They took this shortcut and now are getting burned. BUT it IS a shortcut, and they took it - perhaps un-aware of the consequences (like Arizona - did they read the law?), OR hoping that no one would catch on.
THIS is similar to the shortcuts and corner cutting BP took in engineering and operations in the Gulf blowout. They have done this a lot - for a long time - and finally have gotten bit in the ass. Drilling deepwater IS safe if properly engineered and executed. But if you cut seven corners and blow off four safety issues, and then do something stupid on top of it - you can finally pile up enough idiocy to result in disaster.
The banks want to treat this as a mass market, but for each homeowner / borrower, it is their life’s biggest spending commitment and obligation. They deserve to be treated as individuals, to have their case heard by someone - a PERSON - with authority to act and understanding to take each transaction for its facts and circumstances - not just foreclosure number 4079 in a list of 10,000 to be processed.
I rarely am pro-lawsuit - but in this case I believe the state law’s intent and the guy filing the suit are right, and BofA and the MERS and bundling market were gaming the system and are NOT following the law in letter nor intent.
IMHO
The nationally used standard form Deed of Trust places the obligation to file a reconveyance on the mortgage holder, and failure to do so leaves them vulnerable for almost unlimited damages in a Slander of Title if they fail to do so promptly.
.
I agree with you. This is why (in my humble opinion) the state where the loan was originally cast should have jurisdiction over any legal proceedings involving the property. Otherwise you end up with a situation where the governing jurisdiction gets changed "behind the borrower's back" simply because the original lender decided to sell the loan to someone outside the state. What alternative is there to having the "home" state of the loan serve as the governing jurisdiction?
The following is the basis of the motion in front of the judge:
“The second part of the motion, Barlow filed, claims that neither the lender, nor MERS*, nor Bank of America, nor any other Defendant, has any remaining interest in the mortgage Promissory Note. The note has been bundled with other notes and sold as mortgage-backed securities or otherwise assigned and split from the Trust Deed. When the note is split from the trust deed, “the note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgages) § 5.4 cmt. a (1997). A person or entity only holding the trust deed suffers no default because only the Note holder is entitled to payment. Basically, “[t]he security is worthless in the hands of anyone except a person who has the right to enforce the obligation; it cannot be foreclosed or otherwise enforced.” Real Estate Finance Law (Fourth) § 5.27 (2002).”
From another poster on http://www.foreclosurehamlet.org/
“TRUSTEES” for Securitized Trusts May Not Have Standing in Florida Courts!
Trustees for some of these securitized trusts intimate or even claim be able to bring action on behalf of the trust by virtue of the the notion that they are a “National Bank” or some other entity registered in the State of Florida for other purposes, i.e. HSBC, Deutsche Bank N.A., Chase, etc.
That supposed standing may likely not be valid when the “National Bank” is acting in the capacity of “Trustee” for the securitized trust.
As mentioned many times before, check the POOLING AND SERVICING AGREEMENT for the plaintiff trust carefully. Take note of it’s PRINCIPLE PLACE OF ADMINISTRATION as defined in that PSA.
Be familiar with the following:
http://www.foreclosurehamlet.org/profiles/blogs/trustees-for-securitized
“When the final note is paid”
I’ll put this under “Quaint Notions” in the nostalgia file
No question it could be difficult, and according to this judge, unless your mortgage holder is registered with the state, you can’t establish property ownership anyway.
Maybe you have a case for “adverse possession”?
Yes, we need more lawyers involved.
Thing is, most illegals deal in cash and don’t use banks.”
Banks will transfer money to Mexico, tho. Western Union is not the only provider for those services.
This is a good point.
In this case, I'm worried about the secondary mkt being destroyed because when all banks have to sell their loans to the govt run Fannie & Freddie there will be no room for young entrepreneurs in real estate. If that happens one more slice of the american dream gets destroyed by the nanny state.
On this question, it would seem appropriate to quote Sir Walter Scott: “Oh what a tangled web we weave when first we practice to deceive.”
This mortgage mess has the possibility of being more difficult to unwind than the Spanish and Mexican land grants in the southwest.
I know this will not fly with the "By God everyone should have their homes foreclosed and anyone who ever signs a contract for anything and doesn't live off the grid by cash only with six thousand pounds of cornmeal in the storm cellar is an idiot" Freepers. However, these meganational corporations do a lot of underhanded tricks. BOA bought a lot of mortgages. They are now attempting to rewrite the conditions of the original contracts by claiming that because they're a national corporation, they do not have to abide by the state laws in effect when the original contracts were written.
One of these tricks is making it impossible to talk to anyone. If you call their toll free number, the person you talk to only has authorization to take a payment. The number to talk to someone who CAN negotiate usually rings for forty-five minutes or so an then disconnects without anyone answering.
Any corporation that does business in a state has to abide by the rules of that state. The move to take it to Federal court is a cheap ploy. BOA isn't violating Federal law. They are in violation of state law. If BOA bought the contracts, they are legally bound by the original provisions of the contract.
Which has happened to many people, myself included. Just because that happens does not absolve the loan recipient of having to pay back the loan.
My mortgage was with First Bank of Tennessee, I live in Illinois. By doing business in Illinois, First Bank of Tennessee is subject to the established banking rules in Illinois, just as any other lender in Illinois would be.
First Bank of Tennessee sold my loan after holding it 8 years to another bank, who sold it to another bank, who sold it to Wells Fargo in California. All these transactions occurred within the 2009 calendar year.
I was notified by Wells Fargo in June of 2009 that they held my paper. Up to that point, my mortgage payments went to First Bank of Tennessee who was responsible to administer any mortgage payments I made, even if my loan was sold, until I received notice that my mortgage was held by another lender/processor. That's the law.
When I received the Wells Fargo notice, I requested and received proof that they held my mortgage, and my payments went un-interrupted.
It's not rocket science to figure these things out, and a bank or other mortgage holder is required to provide proof that they hold the paper when a mortgage is sold.
As I said above in a previous post, the issue that keeps coming up is a burden of proof. Some courts/states demand the original paper and physical transfer documents. Others are satisified with digitized images of those documents. Until there is a standard by which the courts across the country will accept "proof" then we're going to have this kind of crap.
Please consider the implications of UCC 3-501.
Not sure if this is true in every state but I do know this to be true here in Illinois, so this would make sense to me.
......(snip) If BOA bought the contracts, they are legally bound by the original provisions of the contract.
As somone who worked for a major mortgage lender I know this to be exactly correct. If BofA is not able to meet the original provisions as set out in Utah law then they are the ones in violation of the contract and must remedy the situation by either opening up offices and having physical presence, or sell off those loans to a mortgager/processor/holder within the state. By the way, I didn't know BofA didn't have physical offices in Utah.
I suspect you're focusing on this specific language:
(2) Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable evidence of authority to do so, and (iii) sign a receipt on the instrument for any payment made or surrender the instrument if full payment is made.
(3) Without dishonoring the instrument, the party to whom presentment is made may (i) return the instrument for lack of a necessary indorsement, or (ii) refuse payment or acceptance for failure of the presentment to comply with the terms of the instrument, an agreement of the parties, or other applicable law or rule.
Am I correct?
Thanks. I wrote because I did not know, and BOA has bought my home loan.
Very good point. Thanks for pointing that out.
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