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CA Court Site Info on Foreclosure

Tuesday, May 9, 2017

Surrendering Property in Bankruptcy, Debtors with Lawsuits

http://www.jdsupra.com/legalnews/surrendering-your-property-in-87101/

Basically, surrendering property in bankruptcy means you must ACTUALLY surrender it.
The case involved the 11th Circuit and Florida cases...if you are NOT in the 11th Circuit, see
a local attorney to find out the current status of such cases in your District.


OCTOBER 2016
The title of this article seems self-evident. Lenders, servicers, and others active in the foreclosure arena these past few years know that it has been anything but. Borrowers surrender property in bankruptcy but, nevertheless, continue to actively 
contest foreclosure, sometimes even successfully. Here’s a situation that may sound familiar:
  • Lender sues to foreclose on mortgaged property. Borrowers deny every substantive allegation in the complaint, including those relating to the loan documents and the default, and raise numerous defenses. The foreclosure action remains pending for months in part because of borrowers’ defensive efforts.
  • Borrowers then file a Chapter 7 or 13 petition for bankruptcy. In their bankruptcy schedules, borrowers don’t dispute the validity of the mortgage, they identify the lender as a secured creditor having an interest in the mortgaged property, and they identify approximately how much the lender is owed.
  • Thereafter, in their Chapter 7 statement of intention or Chapter 13 plan for reorganization, borrowers indicate an intention to surrender the mortgaged property. The automatic stay imposed by the bankruptcy court is then lifted or the trustee abandons the property, and the lender proceeds with its foreclosure action...(see link above for entire article)

Houston Couple Wins $5 Million v WELLS FARGO

Houston couple wins $5.4 million in foreclosure fraud suit against Wells Fargo

Sometimes David beats Goliath

NOTE THE DATE OF ARTICLE--2015......................
legalcosts
It’s a story that’s been seen hundreds, if not thousands of times since the housing crisis. Homeowners fight back against foreclosure, saying that the lender or servicer has no legal authority to foreclose on their home.
And it usually ends the same way, with the little guy losing.
But one Houston couple took on one of nation’s biggest banks – and won. Big.
According to a report from the Houston Chronicle, David and Mary Ellen Wolf received a foreclosure notice in 2011 from Wells Fargo (WFC). There was one problem: They’d never done business with Wells Fargo or their assigned mortgage servicer, Carrington Mortgage Services.
After talking the situation through with a lawyer, W. Craft Hughes, who happened to be their neighbor, they determined that neither Wells Fargo nor Carrington had the legal right to foreclose on them.
And the Wolfs took Wells Fargo and Carrington to court and won.
From the Houston Chronicle:
A state district court jury in Harris County agreed last month and awarded the Wolfs $5.4 million after a four-day trial.
"It's very unusual," said Linda E. Fisher, professor of law at Seton Hall Law School who has testified before Congress on the effect of mortgage fraud on consumers. "Cases like this don't usually get in front of a jury."
Now the issue of mortgage notes being transferred between lien holders and servicers after the mortgage was originated is not a foreign concept at all, but the Wolfs, via their neighbor attorney, argued that Wells Fargo violated Texas law.
Again from the Houston Chronicle:

Hughes argued that when Wells Fargo retroactively attached the Wolfs' mortgage to a securitized trust that was closed and sold to investors three years earlier, the bank violated a Texas law that prohibits fraudulent real estate filings. The jury agreed, although State District Judge Mike Engelhart hasn't formally entered the verdict, and the bank and mortgage company haven't said whether they'll appeal.

The Wolfs’ house is currently on the market for $850,000, and no one seems to know who owns it now.
Again from the Houston Chronicle:
"That's a big question mark," said Hughes. The jury found that neither Wells Fargo nor Carrington owns the mortgage note. But the jury also determined the Wolfs owe $655,000 on the note they signed in 2006.
At least they can use some of that $5.4 million to pay off the note.

Tuesday, August 9, 2016

SCIARRATTA Case...Another HOMEOWNER Helped by Yvanova

http://law.justia.com/cases/california/court-of-appeal/2016/d069439.html

MAY 2016 FOURTH APPELLATE DISTRICT

MONICA SCIARRATTA, Plaintiff and Appellant,

 v. U.S. BANK NATIONAL ASSOCIATION,
 as trustee, etc., et al., Defendants and Respondents



This case presents the question of "prejudice" left open in Yvanova:

Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure?

 Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred? 

Although Yvanova did not address this precise issue, the policy considerations that drove the standing analysis in Yvanova compel a similar result here.   *[At this point, we (blogger) say ..."DUH?!!!"........]

As the Supreme Court stated in Yvanova, it would be an "'odd result' indeed" were a court to conclude a homeowner had no recourse where anyone, even a stranger to the debt, had declared a default and ordered a trustee's sale. (Yvanova, supra, 62 Cal.4th at p. 938.) 

Accordingly, we conclude that a homeowner who has been foreclosed on by one with no right to do so—by those facts alonesustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure.

Yvanova Case "Limited" in Its Application re Pre Foreclosure?

http://www.lockelord.com/newsandevents/publications/2016/03/~/media/64ACC7FA3D024860B99C7DCBC9EF84F5.ashx

California Court Issues Decision Limiting the Reach of the Yvanova Decision 

By: Regina J. McClendon and Matthew B. Nazareth 


On March 16, 2016, California’s Fourth Appellate District issued its opinion in Saterbak v. JPMorgan Chase Bank, N.A., Case No. D066636, finding that a borrower does not have standing to challenge an assignment of her Deed of Trust before a foreclosure sale takes place.

While the California Supreme Court’s recent ruling in Yvanova v. New Century Mortgage Corp. found that borrowers may have standing, after the foreclosure sale has occurred, to pursue wrongful foreclosure claims based on a void assignment of the loan, Saterbak provides a strong basis for preventing preforeclosure sale actions based on securitization or fraudulent assignment theories.

The borrower in Saterbak sought to cancel the assignment of her Deed of Trust based on two familiar theories. She argued that the Assignment was executed and recorded after the closing date of the Pooling and Servicing Agreement (PSA) of the trust. She also argued that the Assignment should be cancelled because the signature was either forged or “robo-signed.

” At the trial court, JPMorgan demurred to the borrower’s complaint on the basis that, as a third party to the PSA and the Assignment, she lacked standing to challenge the Assignment. The trial court agreed and dismissed the complaint.

The central issue on appeal was whether the borrower had “standing to challenge the assignment of the DOT on the grounds that it does not comply with the PSA for the securitized instrument.” The Court first addressed the burden of establishing standing.

The borrower argued that the securitized trust should bear the burden of establishing the validity of the Assignment.
The Court rejected the argument and explained that as the party seeking to cancel the Assignment, the borrower must demonstrate “some such beneficial interest that is concrete and action, and not conjectural or hypothetical.”

The Court also distinguished cases in which an assignee filed a suit to enforce its assigned rights, explaining that those cases are inapplicable when a borrower files suit to challenge an assignment. ................(see link for entire article)

Saturday, July 23, 2016

Fannie Mae "Isn't An FSA" Appeal, First Impression, HBOR Related



It should be known that those who filed this appeal were instrumental in bringing HBOR forward when it was in the legislature.

          One of the attorneys (Ms. Kim) just helped a process server, a friend of ours, stop the sale of her property yesterday...so least we could do was to make it known, that this appeal below will undoubtedly give some other owners out there, more information about  Fannie Mae and the other groups (like banks) that helped to ruin the country with foreclosures.

We know many believe that the foreclosures were all for poor people who didn't deserve a house to begin with. It is true that minorities disproportionately were affected.... Unfortunately, we have seen enough case law to know that many foreclosures were not necessarily against poor people, or small loans; but to the contrary.

http://dudensingkimlaw.com/wp-content/uploads/ratterree-v-fannie-mae-aob.pdf


III. ISSUES PRESENTED 


1) Did the trial court err when it found HBOR’s prohibition against “robo-signing” documents (§2924.17) preempted by the federal HOLA?


 2) Did the trial court err in applying HOLA preemption to Fannie Mae when Fannie Mae is not a federal savings association (FSA) regulated by HOLA? 


3) Did the trial court err when it dismissed Ratterree’s wrongful foreclosure action? 


4) Did the trial court err when it sustained Defendant’s demurrer without leave to amend? 


Although the case may be first impression, it just goes to show that even judges can't figure out when (or not)--- Fannie Mae is wrong. 


                     ..... And People don't like Trump???                      



Thursday, May 19, 2016

NEW CALIFORNIA PUBLISHED "YVANOVA TYPE" CASE IN OWNER'S FAVOR !!!

Just a matter of time before the floodgates start more of the same!!

Void is void, but voidable is not necessarily void, right???






COURT OF APPEAL FOURTH APPELLATE DISTRICT
                                   DIVISION ONE
                        STATE OF CALIFORNIA

D069439
================================================

MONICA SCIARRATTA

V

US BANK NATIONAL ASSN

SUPERIOR CT NO. RIC1301485  Riverside County
--------------------------------------------------------------------------

This time Chase Bank was involved and also WAMU  (in 2005)...
Essentially WAMU subbed Quality Loan Services as successor
trustee then JPM  in 2009 assigned the deed to Deutsche Bank.

As can be seen, this is very similar to the case we mentioned on Chase
Bank for which we have personal knowledge which took 3.5yr and the
shenanigans that Bryan Cave law firm pulled. We were not surprised
because we have seen the same crap all over the state.

"On Dec 28 2009, Chase, as successor in interest to WAMU, recorded
a document entitle "Assignment of Deed of Trust" which states-
"This assignment is being recorded to correct the assignee reflected
on the assignment recorded April 27 2009 as Instrument # XYZ...the
undersigned hereby grants, assigns, and transfers to B of A..all beneficial
interest under that certain DOT dated 6/17/2005 executed by Sciarratta.."

In part, the complaint was first filed in District Ct, but was dismissed in
defendant's favor; Sciarratta then filed a state court action for wrongful
foreclosure, quiet title, and cancellation of instruments. Defendants asserted
res judicata, and failure to assert prejudice.

Plaintiff asserted that prejudice is not an element of wrongful foreclosure
where the foreclosure sale is void; court allowed Plaintiff to amend on
grounds that she must allege element of prejudice. The court eventually
found that under Yvanova, Plaintiff was victim of a void deed of trust by
B of A so she had standing to assert the claim.

Essentially, the court reiterated, the harm (foreclosure) can be directly
traced to the [foreclosing entity's] exercise of the authority purportedly
delegated by the assignment; that policy reason favor this approach and that
a contrary rule would lead to a legally untenable situation --that anyone can
foreclose on a homeowner because someone has the right to foreclose.

"AND SINCE LENDERS CAN AVOID THE COURT SYSTEM ENTIRELY
THROUGH NONJUDICIAL FORECLOSURES, THERE WOULD BE
NO COURT OVERSIGHT WHATSOEVER." (Miles, 236 Cal.App.4th at p.410.)

-------------------------------------------------------------------------------------
Most of such transactions appear in similar wording across CA esp in
view of Yvanova... we have Mr. Antonini to thank for handling that case
in such a great fashion!!


It has taken this many years to bring the cases forward, and even
despite CA HBOR-- many attorneys simply can't take these cases without
upfront money for fees.  It's very sad because in many of the cases with
WAMU, none of the deeds exist, meaning, the assignments were no good
despite what they claim. They trashed everything so that it would be very
difficult to figure out what happened.  Cat's been outta the bag for years--
and now we have at least a START on some justice!!

http://law.justia.com/cases/california/court-of-appeal/2016/d069439.html

True Story: Wamu Chase Mortgage--Settled--Be Forewarned

Having personal knowledge about this particular case, we will share what we learned about how devious this was, and how wrongfully it was done...........by Chase/Fannie Mae.



Owner only owed less than $2,000 in back pay (not including fees/costs) and had at least $65k in equity; and tendered FULL amount to the alleged entity in San Diego, via cashiers check, with certification that such $$ was received in person at the business.

However, after that, owner never received a payment statement and attorney kept trying to get a written answer as to why?  All letters were ignored, despite having been sent to all Chase locations known.

Then attorney went in person to turn in the next month's payment for owner, and Chase bank refused it and claimed there was no full payment made according to "their records." Well--trying to get hold of anyone on phone at either Chase or the entity which received the full tender was insane because they claimed they didn't know anything? Seriously, that was the answer.  After so many calls, it was obvious that full tender was made but they did not care if it was accepted; after 90 days, it was never posted.

At that point, it's either litigation, or free rent. The option of free rent was chosen since they would not accept payments nor would they credit the full tender. Attorney even spoke to the VP of local branch and he couldn't figure it out.  Eventually, attorney found out, 3 years later, than Fannie Mae claimed to have owned the house---by--check this out--"QUIT CLAIM DEED."

And how did that happen? Oh, Fannie Mae says that JPM sold the house at noticed foreclosure sale (not true) and then quitclaimed it to Fannie Mae. What really happened was that there was a bankruptcy in place and when it fell out Chase never followed the law for sales post bankruptcy. The sales post bankruptcy are very tricky and they are not required to give new notice under certain circumstances, one is supposed to call the auction person to find out the date. There was no date because the sale was never set up.

Chase simply told Fannie Mae they never received full tender and gave away the house (on paper) because Chase never owned the house, it was only the "servicer" so that meant that Fannie Mae owned the house to begin with, in theory, and couldn't prove it. Possibly a "servicer" could buy a property, but normally it's the loan holder that buys back the property. And who knew which entity had the loan then? Not Chase.

Recall-- the master list of Wamu owned properties was destroyed (this was determined back East in several litigated cases.)  As to which houses Fannie Mae owned is a problem in and of itself, but clearly Chase refused to take/or credit full tender payment(s) beginning August 2010.  That meant Chase was already in trouble and if it was to keep taking the money, perhaps for Fannie Mae, which was also in trouble, it would just be more evidence of their wrongdoing as no entity held the deed, and they didn't want "securitization" issues, plus, there was a faulty issue involving the assignment.

Well, three years of no rent is ok, and after filing for fraud and negligence, judge allowed counsel to amend complaint to restate the fraud, and negligence was moving forward, but client opted to settle case [after case was 2yr old...] The litigation documents probably weighed (physically) about 73 pounds, and would not fit into a huge rubbermaid tote if you get our drift. The settlement didn't take too long, but then guess what Chase defendants' attorneys did?  They drafted a settlement (998) proposal, got an acceptance, but refused to give client the draft to sign?? Unbelievable.

Then they later tried to force court to enter the dismissal without any signed 998 settlement done and despite refusing to hand it over for many months for signature...counsel read what the offer stated, and did notice that dismissal was to be executed first, BUT clearly executing a dismissal first and filing it,  without having the settlement agreement to sign is a farce. That would be ridiculous but Chase attorneys tried to wait out client, hoping he would file the dismissal and then they would make up some crap like latches or whatever. And there would be no settlement document to sign because there would be nothing? Maybe even no jurisdiction?

Thus counsel had an alleged settlement acceptance, but document was never given by Chase  to client or attorney; then, another  attorney filed a $120,000 new lawsuit (subrogation) against landowner, claiming that a deputy had fallen into a trench on the property and got seriously injured and could not work. In reality, the deputy had fallen into some contrived covered trench that the adjoining 20acre neighbor had devised, apparently to guard his medical MJ crop. That was on the neighbor's land, not client's.

So without a settlement document to sign, Chase tried to force dismissal of the client's case. Counsel was then forced to show why that would or should not be done, since the 2nd lawsuit made a radical change as to the liability, since the liability would obviously fall on client and not Chase or Fannie Mae who was also sued. Such liability would take out all of the settlement proceeds.

The Court then had Chase draft a judgment as to the last order, and Chase finally gave client the "settlement" draft to sign. As we know, it's quite possible that in certain instances, if the 998 hits a snag--the court does not necessarily retain jurisdiction. Therefore counsel did not want to enter the dismissal as early as Chase wanted it. We noted that when the client's opposition was filed, an attorney higher on the chain was used to file the response.

After the pleadings were filed which CLEARLY explained what the Chase/FM attorneys did, client was even further beleaguered because the judge then purportedly ordered that the client should face a sanction of nearly $5,000 for not having paid the fee waiver out of the settlement. (Recall, there was no settlement proceeds at this time)  So counsel then had to do opposition to a nonsensical "sanction" on this code, because a cursory review of the code does not support such an outrageous sanction.

After counsel appeared and explained the entire long winded story, judge dropped the entire sanction.
Now you might wonder how long did this all last? About 3.5yr--for chump change, trust us. BUT it is still a victory, thought hard-won, it was not a loss because the facts of what Chase attorneys (Bryan Cave) did is set in stone in the pleadings. And we can say without any hesitation---beware of how Bryan Cave attorneys handle their work, since what we saw was not only incredulous, but purposefully and knowingly done simply because they know they can get away with it.

We estimate Chase/FM probably conservatively spent more than $135,000+ in time on this plus the 3yr of free rent. It actually started in 2011. If case had not settled prematurely, it would conservatively be a $200k+ case and we know it. No other attorney would touch this case on contingency because they all know bank mortgage litigation. They practically force one into an appeal on purpose.