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;
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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 ...
First they reverse a legal order to deport Obama’s aunt, now telling the banks not to foreclose. Enter stage left....Kagan.. The judiciary is out of control. BTW, which Obama apparatchik is Cuffy Miegs?
The Court Order if allowed to become permanent will force Bank of America and other mortgage companies with home loans in Utah to adhere to the Utah laws requiring lenders to register in the state and have offices where home owners can negotiate face-to-face with their lenders as the state lawmakers intended (Utah Code ' 57-1-21(1)(a)(i).). Telephone calls by KCSG News for comment to the law office of Bank of America counsel Sean D. Muntz and attorney Amir Shlesinger of Reed Smith, LLP, Los Angeles, CA and Richard Ensor, Esq. of Vantus Law Group, Salt Lake City, UT were not returned.
Barlow said Bank of America claims because it’s a national chartered institution, state laws are trumped, or not applicable to the bank. That was before the case was brought before Judge Shumate who read the petition, supporting case history and the state statute asking for an injunctive relief hearing filed by Barlow. The Judge felt so strong about the case before him, he issued the preliminary injunction order without a hearing halting the foreclosure process. 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.
The legal gamesmanship has begun with the case moved to federal court and Barlow’s motion filed to remand the case to Fifth District Court. Barlow said it only seems fair the Bank be required to play by the rules that every mortgage lender in Utah is required to adhere; Barlow said, “can you imagine the audacity of the Bank of America and other big mortgage lenders that took billions in bailout funds to help resolve the mortgage mess and the financial institutions now are profiting by kicking people out of them homes without due process under the law of the State of Utah.
One would have to be here, to believe the turn of events in St. George, UT. When I got here in fall of 2006, things were booming. Fortunately, I am a procrastinator, and didn’t take my real estate expert sister’s advice to hurry up and BUY NOW. The truthful answer is that I was working so many hours, I was too damn tired to go house-hunting. Lucky for me, or I’d be prolly penniless and homeless.
Hard to see what good comes out of the judge’s order, though. There are so many vacant homes and commercial parcels.
And it’s only going to get worse here, as the amigos seeking to elude the new AZ immigration law are not only on their way.....they are now here. In full force.
You won’t GET them, because the way the left wingers in D.C. wrote the “mortgage adjustment” rules, the banks get subsidized whether or not they help the customers. There is no impetus for the banks to cooperate, period!
Since when,
can a judge dictate civil law between a private loan contract and individuals involved in legal default proceedings covered under the terms of a legal and binding loan agreement?
This “judge” just declared all previously legal and binding sales contracts to be void. He has appointed himself to be above the law and in essence, he now IS the law.
OUTRAGEOUS!!!!
If you read the article, the right of banks to foreclose is not the issue. The question is whether the banks must adhere to the laws of Utah while doing so.
The judge is enforcing the laws of Utah. Read the article.
Since when did bank America, stop giving credit cards and loans to illegals.
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).
If he is successful on this point the secondary mkt for mortgages will be crippled.
My first thought was in favor of BOA because if you borrow money you should pay it back or return the collateral. However, the judge does have a point about state laws being respected and if a bank does not want to abide by the state laws they should stop doing business in that state.
‘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).’
Interesting,very interesting indeed.
“So Judicial activision is bad cept when it’s something you like. Good grief.”
I presume you meant “activism”. No it isn’t right. I just found it humorous that the crooks at B of A got hoisted by their own petard. I have been in banking and high finance all of my life, and co-founded a bank in Los Angeles, so I have a pretty good feel for B of A.
It could be just as easy to say he's telling an arrogant out-of-state bank doing an enormous amount of business in Utah that it must remember that it is doing business in Utah and that Utah laws needs to be complied with. Apparently, the Utah legislature passed some laws to level the playing field for its "little people" and the Bank of America has ignored those laws.
Bank of America: "Badges? Badges?!? We don' need no steenkin' hadges!"
Judge Shumate: "I'm sorry, but I'm a state judge sworn to uphold state law, and state law clearly says you need steenkin' badges."
I don't have a problem with that.
” Since when did bank America, stop giving credit cards and loans to illegals.”
They STILL are, and mortgages too, despite the melt down.
Recontrust is a subsidiary of Bank of America that apparently is in the business of "owning" troubled mortgages. I don't think the company has ever lent a single penny directly to a home owner.
Under these circumstances there is likely to be a lot of dispute over which entity actually holds the mortgage on a piece of property, and therefore which entity has the right to foreclose on the property.
Why are Freepers so set on the idea that banks should have to tear up their mortgage contracts with their customers and give concessions or ‘make adjustments’?
Meanwhile, is this a local ‘states rights’ judge taking on the banking regulation order whereby national banks are indeed regulated nationally?
When I read about BA giving credit cards/mortgages to illegals, I immediate refinanced my mortgage with someone else and canceled my card with them. Of course they asked why, and when I told them, there was a long bit of silent disbelief on the other end. It was awesome.
Are you suggesting that with all the sales of mortgages the right to foreclose hasn’t gone with it?
A Utah resident who makes a legal and binding contract in another state is still held accountable to that state in which the contract was made, under the terms of the contract. This case has very little to do with Utah State laws superseding all other legal contracts in other states; On the contrary.
Try taking out a contract or lease in another state yourself if you think that BOA has no case. You will learn a lesson the hard way if you do.
” Under these circumstances there is likely to be a lot of dispute over which entity actually holds the mortgage on a piece of property, and therefore which entity has the right to foreclose on the property. “
That is as good of a guess as we are likely to find here today.
” when I told them, there was a long bit of silent disbelief on the other end. It was awesome.”
LOL! They think we are all stupid, and don’t know what they have been doing for the past 20 years.
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