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Georgia Supreme Court Says The Servicer, And Anyone Else Can Collect on the Debt. Georgia Is Just Stupid
Living Lies Weblog:
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Wednesday, 25 June 2014 09:59
By Darwin BondGraham, Truthout | News Analysis
DARWIN BONDGRAHAM (Darwin BondGraham is a sociologist and journalist who covers political economy. He blogs at http://darwinbondgraham.blogspot.com and for washingtonspectator.org.)
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Sue your bank in California over a wrongful foreclosure, and the best you’re likely to get – if you have ironclad evidence that it broke the law – is a loan modification. That is, a “win” for the borrower usually means the bank keeps another customer and collects interest payments that are thousands of basis points above the level at which the bank is able to borrow from the Fed. Very often, however, homeowner lawsuits against the banks end in dismissal. In the parlance of the courts, the defendant’s demurrer is sustained. Judges in California’s superior courts often rule in favor of the banks, and the few lawsuits that filter up to the appeals courts and Supreme Court don’t fare any better.
Why do the banks keep winning in court against borrowers alleging wrongful foreclosure, fraud and other abuses? Many borrowers and their lawyers say there’s a judicial bias favoring the banks over homeowners, and that this bias is revealed by the economic position of the judges themselves. Most California judges are wealthy, and many of them hold significant investments in financial corporations and bonds, oftentimes even in the very same banks and mortgage lenders that have been sued by thousands of Californians over alleged fraud, deception and wrongful foreclosure.
Case in point: Baldwin v. Bank of America, a borrower lawsuit alleging wrongful foreclosure that battled all the way to the steps of California’s Supreme Court. In 2007, Marvin Baldwin borrowed half a million dollars from J&R Lending to purchase a small three-unit apartment building in Long Beach, California. It was the height of the real estate bubble. Things quickly fell apart, and Baldwin ran into financial troubles.
In 2009, Bank of America, which by this point had acquired Baldwin’s loan, notified him that he qualified for a federally sponsored HomeSaver Forbearance Program, a temporary bridge toward a permanent loan modification. Baldwin assumed that this was how the taxpayer-funded bank bailouts were translating into assistance for small landlords, so he cooperated with Bank of America and made payments under the program. But late in 2010, Bank of America recorded a notice of default against Baldwin’s loan. Things looked dire.
Then in October, two months after filing the notice of default, Bank of America spun around again and appeared to be offering Baldwin a rescue plan. Bank of America announced a national moratorium on foreclosures due to the bank’s acknowledgement of “irregularities” in its own internal processes. But then Bank of America reversed course yet again. In spite of announcing a moratorium on foreclosures – a moratorium stemming from the robo-signing scandal in which it was revealed Bank of America was routinely breaking the law – Marvin Baldwin’s home was suddenly sold at auction on December 8, 2010.
He filed a lawsuit alleging breach of contract and fraud and sought injunctive relief to save his property. Baldwin alleged in his lawsuit that Bank of America violated California’s Unfair Competition Law, which states, among other things, that a company cannot act in ways that would be likely to deceive a reasonable customer. The foreclosure “moratorium” Bank of America announced was one such deceptive practice because the bank lulled its borrowers into inaction, but then in fact continued to foreclose on properties and sell them, argued Baldwin and his lawyer. A year later, a trial court in Los Angeles sided with Bank of America, ruling the foreclosure and auction were perfectly legal, and that the bank’s actions weren’t deceptive.
Marvin Baldwin and his lawyer Lenore Albert appealed and argued their case before California’s 2nd District Appellate Court. They lost again. The court’s reasoning waded deep into gray areas, interpreting California’s business laws, fraud laws, and real estate laws liberally in the Bank of America’s favor.
Broad Pattern of Bias Seen
Plaintiffs’ attorneys see a broad pattern in California in which the judiciary has routinely sided with the banks, even when the law could be interpreted to prevent or reverse a foreclosure.
“They don’t want to be the judge that allows 40 million mortgages to go back to the borrowers,” said Patricia Rodriguez, a lawyer who has filed homeowner lawsuits against banks and mortgage servicers in multiple California superior courts. “They don’t want to possibly set a precedent.” A single ruling against Bank of America that reverses a foreclosure sale because the bank didn’t follow the letter of the law, for example, could spill over into thousands of other cases and potentially impact the profitability of the entire banking and loan servicing industry in Calfiornia, said Rodriguez.
“It was very clear that there is one form of justice for the small borrower and another form of justice for the moneyed interests,” said Donald Adams, a retired California attorney. “It pains me to say that, but having seen the real estate debacle and the judiciary’s protection of these fraudulent practices, I have reluctantly come to that conclusion.”
As to why the banks so often come out winners, some point to the economic interests of the judges. The average superior court judge in California is paid a salary of about $150,000, but many of the judges are appointed to the bench after years of lucrative private practice where they earned many times this amount of money. Most judges worked as lawyers at large law firms and boutique offices whose clients include major corporations, real estate companies, banks, and others that can pay top dollar. By the time they become judges, most of these lawyers have amassed considerable financial wealth, and like other members of the top 1% of income earners and wealth holders, most judges invest their fortunes in stocks and bonds. And after years of working for corporate clients, many judges have also been steeped in legal and social philosophies that favor the interests of the wealthy above those of consumers and debtors.
It’s impossible to really know why California’s judges have decided so many mortgage fraud and wrongful foreclosure cases in favor of the banks. Certainly it’s a mix of factors, including ideology, but also the existing structure of the legal system that favors wealthy defendants like the banks over isolated and indebted plaintiffs; the banks can afford the best lawyers to represent them, and the biggest banks spend several billion each year lobbying the legislatures of all 50 states and the federal government to shape laws and regulations in their favor. It’s an uneven playing field from the very start. But one possible way to gauge the possibility of bias in the legal system is to look at the economic interests of California’s judges. Unlike ideology, the material interests of the judiciary can be observed and measured. Through their ownership of bonds in financial and mortgage lending companies, many judges own senior claims on debt, debt that is directly tied to the loans of homeowners. Judges also own equity stakes in corporations, the value of which hinges very much on residential mortgage loans and loan-servicing activities.
For example, 42 of California’s 105 appeals court judges own stocks or bonds in financial companies. Seventeen of California’s appeals court judges own stock in Bank of America, while 10 own stock in Citibank, 6 in US Bank, 5 in JPMorgan Chase, and 4 in Wells Fargo. These judges own significant numbers of shares, on average amounting to about $10,000, but some California appeals court judges have revealed in their financial disclosure reports that they own perhaps as much as $1 million in stock in these banks.
The implication here is that many of California’s judges have a financial stake in the profitability of the largest mortgage servicers in the state, the same banks that have been brought before the courts in thousands of cases alleging wrongful foreclosure.
For example, in the Baldwin case, one of the appeals court judges who ruled in favor of Bank of America, Steven Suzukawa, owned as much as $100,000 in Bank of America stock, according to public records. Another of the judges on the three-judge appellate panel that heard the Baldwin case, Norman Epstein, owned as much as $10,000 in Bank of America stock. This was not disclosed, according to parties involved in the case. Under California’s judicial ethics standards, a judge owning more than $1,500 in stock of a company that is party to a lawsuit should recuse themselves from the case.
Baldwin fought on after the setback in the appeals court which was decided in February of this year, petitioning the Supreme Court of California to hear the case. California’s highest court refused to consider the lawsuit, dismissing the petition on May 21.
“I am a bit shocked at the failure to review such a new issue that affects thousands,” wrote Lenore Albert, Baldwin’s counsel, in an email.
One of the Supreme Court judges who was set to decide whether or not Baldwin would be heard had to recuse himself from even making that preliminary decision. Ming Chin, appointed to the California Supreme Court by former Governor Pete Wilson in 1996, disclosed as much as $100,000 worth of stock in Bank of America. Judge Chin also owns stock in Morgan Stanley, the investment bank that sold billions in mortgage-backed securities during the real estate bubble of the 2000s.
Majority of Justices Major Stakeholders in Banks
A majority of California’s Supreme Court justices own major stakes in the banks that service the majority of mortgage loans in the state. Justice Marvin Baxter owns shares of Wells Fargo Bank and Citibank. Justice Carol Corrigan owns shares of Citigroup and part of a business called Redwood Mortgage Investors, a private investment company that owns tens of millions of dollars worth of residential mortgage loans in California. Justice Joyce Kennard owns stock in JPMorgan Chase and Citibank. Justice Kathryn Werdegar owns as much as $1 million in Wells Fargo stock. That makes five of California’s seven Supreme Court justices major investors in the mortgage lending and loan servicing industries.
“I’m so frustrated,” said one lawyer, speaking on the condition of anonymity, about decisions of California’s judges. “I have my team putting together the wall of shame for the judges, how they’re not enforcing the law.”
The state courts, many of them, were individually biased against the consumers,” said retired attorney Don Adams. “The courts were not going to let individual borrowers escape mortgage payments, and were less concerned with stopping the fraudulent and predatory activities that got us into the mess in the first place.”
In 2009, Adams sued Countrywide on behalf of a client who sought to quiet title to their home after a tangled deal of loans involving Countrywide, Citibank, and Bank of America led Countrywide to wrongfully foreclose. Countrywide admitted to foreclosing “in error,” but a trial court found in favor of the bank, forcing the borrowers to sign a new loan agreement with Countrywide. Adams and his clients appealed the decision, but then lost before a panel of three judges in California’s Second Appellate District court. One of the judges, Arthur Gilbert, owned stock in Bank of America and Citibank. Another one of the judges, Kenneth Yegan, disclosed two loans for over $1 million he had taken from Countrywide.
According to Adams, the bias of the courts in favor of the banks existed long before the foreclosure crisis. “Had courts enforced the law against the lenders, the great recession did not have to occur,” he said. “Many of us were after the New Centurys, the Ameriquests, and Countrywides well before the collapse. Even after the economy imploded, most judges did their best to protect the business interests of the predatory lenders by cynically not wanting to let the consumers ‘off the hook’ without recognizing that borrowers would still have to pay a mortgage, but the lenders would have to unwind the loans and do it again. The courts felt that was too much for the fraudsters – and accordingly protected them.”
http://law.justia.com/cases/georgia/supreme-court/2014/s14a0391.html
(It did not copy across very well, but click the link to get there from here).
In the Supreme Court of Georgia
Decided: July 11, 2014
S14A0391. MITCHELL et al. v. WELLS FARGO BANK, N.A. et al.
HUNSTEIN, Justice.
Appellants Richard and Deborah Mitchell appeal from the dismissal of
their lawsuit against Appellees Wells Fargo Bank, N.A., Mortgage Electronic
Registration Systems, Inc. (“MERS”), and their successors.1 We find that the
trial court properly granted Appellees’ motion to dismiss based on a bill of
peace, which barred Appellant Richard Mitchell from filing future lawsuits
without prior court approval. Therefore, we affirm.2
In November 2005, Richard Mitchell (“Mitchell”) obtained title to
property located at 455 St. Regis Drive, Alpharetta, Georgia, and executed a
security deed in favor of MERS, who subsequently assigned the security deed
1Appellants specifically named as defendants “any unknown heirs, devisees,
grantees, creditors, successors in interest, and other unknown persons, or unknown
spouses claiming by, through and under any of the . . . named defendants.”
2Appellants filed their appeal in the Court of Appeals, which transferred this
case to this Court because a substantive issue on appeal involved the legality or
propriety of an equitable bill of peace.
to Wells Fargo as trustee. The property was foreclosed upon after Appellants
became delinquent on their mortgage payments, and Wells Fargo purchased the
property at a foreclosure sale on February 3, 2009. Since that time, Appellants
admit that they have made numerous “dilatory filings,” proceeding pro se, in
state, federal, and bankruptcy courts.
In May 2010, Mitchell filed a complaint against Wells Fargo in Fulton
County Superior Court in case number 2010-CV-185623. Wells Fargo moved
to dismiss the complaint and moved for a bill of peace pursuant to OCGA § 23-
3-110 against Mitchell as a measure to end Mitchell’s “meritless filings” in state
court. On July 21, 2011, the trial court issued an order granting Wells Fargo’s
motion to dismiss for lack of jurisdiction because Mitchell had not properly
served Wells Fargo. The court also granted Wells Fargo’s motion for a bill of
peace, finding that the records of Fulton County courts reflected “nothing less
than repeated and contemptuous behavior in the courts of this State” and that the
lengthy history of filings in federal court showed a pattern of behavior by
Mitchell consistent with his state filings. The court concluded that pursuant to
OCGA § 23-3-110, “a bill of peace [was] warranted, in order to stop [Mitchell’s] abuse of the courts of Georgia.” The court permanently enjoined Mitchell from filing any pleading or complaint related to the foreclosure and eviction from the property at issue for a period of five years unless Mitchell first received written approval from the court. The court continued that if Mitchell did file such a complaint, Wells Fargo was under no duty to respond, and the complaint or any pleading would be subject to dismissal immediately.
Mitchell moved to set aside the order granting the bill of peace, which the court denied rally during a hearing on February 19, 2013.
3OCGA § 23-3-110 provides as follows:
(a) It being the interest of this state that there shall be an end of
litigation, equity will entertain a bill of peace:
(1) To confirm some right which has been previously satisfactorily
established by more than one legal trial and is likely to be litigated
again;
(2) To avoid a multiplicity of actions by establishing a right, in favor
of or against several persons, which is likely to be the subject of legal
controversy; or
(3) In other similar cases.
(b) As ancillary to this jurisdiction, equity will grant perpetual
injunctions.
4The court also ordered Mitchell to pay Wells Fargo $4,000 in attorney fees.
5At the time of the filing of this appeal, the trial court had not issued a written
order memorializing its oral ruling denying Mitchell’s motion to set aside.
3
Meanwhile, on May 24, 2012, Appellants, proceeding pro se, filed a
complaint to quiet title and for injunctive relief with regard to the property
against Appellees in Fulton County Superior Court in case number
2012-CV-215444. Wells Fargo moved to dismiss the complaint, arguing inter
alia that Mitchell had failed to receive prior written court approval in violation
of the bill of peace. Appellants did not respond. On October 18, 2012, the court
granted Wells Fargo’s motion to dismiss based on good cause, including the fact
that Mitchell was barred from filing the complaint pursuant to the bill of peace.
Thereafter, Appellants, represented by counsel, filed a motion to reconsider the
order dismissing their complaint, a motion to set aside the dismissal order, and
an emergency motion for stay of execution of writs of possession pending a
ruling on Appellants’ previously filed motions. On November 2, 2012, the court
denied all three of Appellants’ motions.
Appellants now appeal the dismissal of their complaint, contending that
because the court dismissed Mitchell’s complaint for lack of jurisdiction over
Wells Fargo in case number 2010-CV-185623, the court had no jurisdiction over
Wells Fargo to grant them the relief sought in the bill of peace. They assert that
because the court lacked jurisdiction over Wells Fargo, the bill of peace was
4
facially void and a nullity, and they may collaterally attack this void order in this
appeal. Appellants thus assert that the trial court erred in dismissing their
complaint in case number 2012-CV-215444 by relying on a void bill of peace.
Appellees respond that the bill of peace was not void because the court had
jurisdiction over Mitchell, and therefore, that the dismissal based on the bill of
peace was not in error.
We agree with Appellees. In case number 2010-CV-185623, Wells Fargo
made a special appearance and thereby consented to the court’s jurisdiction for
the limited purpose of filing its motion for a bill of peace, while at the same time
contesting the court’s personal jurisdiction over it with respect to Mitchell’s
complaint. Additionally, the court had personal jurisdiction over Mitchell, and
Appellants do not argue to the contrary. Therefore, the trial court had
jurisdiction to issue the bill of peace, and it is not void on its face.6 See Nally
v. Bartow County Grand Jurors, 280 Ga. 790 (1) (633 SE2d 337) (2006) (order
was not void where the appellant failed to show that the court lacked personal
or subject matter jurisdiction).
6We make no ruling on the propriety of the merits of the bill of peace.
Without any order setting aside the bill of peace or a reversal thereof on
appeal, it remains binding on Mitchell. Accordingly, we find that the court’s
dismissal of Appellants’ complaint in case number 2012-CV-215444 based on
Mitchell’s failure to comply with the bill of peace was proper. See Rolleston v.
Kennedy, 277 Ga. 541, 542 (591 SE2d 834) (2004) (summary dismissal of
complaint was correct due to a previously issued bill of peace, which enjoined
the plaintiff from claiming an adverse interest in certain property or filing any
lawsuit without prior written court approval).8
Judgment affirmed. All the Justices concur.
We note that the bill of peace names only Richard Mitchell. Deborah
Mitchell, however, makes no argument that the bill of peace does not apply to her as
well. In any event, we note that an injunction – which is like an equitable bill of
peace in many respects – binds not only the persons named in the injunction, but
“their officers, agents, servants, employees, and attorneys,” as well as “those persons
in active concert or participation with them who receive notice of the order by
personal service or otherwise.” OCGA § 9-11-65 (d).
8Appellees’ motion to dismiss for lack of jurisdiction is hereby denied.
WTF?
The Georgia Supreme Court determined back when they made the ruling on the You case, that the foreclosing entity does not have to hold the Note, does not have to hold the security deed, and does not have to have an interest in the loan.’
It should not surprise anyone, they had been allowing it to go on for a long time. Now, I am seeing the people who were foreclosed upon between 4 and 6 years ago, are being foreclosed upon again, but this time, by someone new, a different Lender, that never existed. One day the real Lender will come, and they too will foreclose on the borrower.
Has everything gotten so bad, that the courts just don’t care? What ever happened to contract law? Are they going to allow all contracts to be violated by lenders, or just when it comes to real property?
I saw someone the other day, Bank of America had allegedly foreclosed upon the man. Bank of America not only foreclosed, but evicted the man as well. Bank of Americas name is on the Deed Under Power. Bank of America swore under Oath that they were the current party with right to foreclose. A month and a half later, US Bank sold the property to a third party, because they claim that they were the party with rights to the property.
So lets’s get this straight, when did Bank of America turn into US Bank? There was nothing in the record showing Bank of America had any claim to the Note or Deed, nothing showing that Bank of America is anything to the loan. The Deed Under Power of Sale, has Bank of America’s name on it, with some of those squiggly marks that the foreclosing attorneys have been signing for years, to create a fictional assignment. But… US Bank be damned, they were going to get some of that action. So without any documentation recorded anywhere, of any kind, US Bank sold the property to a third party.
By le biscuette
Ah, Dekalb County, what a thriving bastion of the American spirit. We’ve been blessed with such American heroes as Congresswoman Cynthia McKinney, who proudly took to Libyan state television to decry US involvement in the movement against brutal dictator Moammar Gaddafi; there’s former Dekalb CEO Vernon Jones, for whom Dekalb taxpayers are on the hook for upwards of five million dollars in legal fees for a reverse discrimination lawsuit; we’ve got Dekalb school superintendent Crawford Lewis, indicted for operating a “crime ring” from his post. And these are just the most visible of our trusted public servants. Beneath the crusty surface of Dekalb County’s political life–embodied by McKinney, Jones, Lewis, and the like–is a colorful cast of crooks and con artists whose power to defraud derives from their elected or appointed post.
The July 31, 2012 political primary election has brought forth at least two fun new characters. And that’s sort of exciting, isn’t it? It’s like getting a new Angry Bird, or a zany addition to the cast of the Simpsons. It’s a fun addition to what is already a colorful and hilarious mix of deviants, a new car full of clowns to delight and entertain us as they bilk our precious tax dollars, and wreck our sacred institutions, for their own corrupt ends.
Let’s turn first to Debra DeBerry, who currently sits as the Clerk of Superior Court of Dekalb County. This is basically the person in charge of administering the functions of the highest county court, where death penalties can be issued, huge civil verdicts reached, marriages dissolved–basically, all the most important and consequential events that can happen in the life of a county. How did DeBerry become the Clerk? You’d assume she was elected, right? Nope. Or appointed by the governor, something to that effect? Not exactly. Deberry became Clerk in 2011 after the long-term Clerk, Linda Carter, resigned. No big deal, right? Well…
According to lawyers representing Linda Carter, Carter didn’t write her resignation letter. It was written by–guess who?–Debra DeBerry, signed by Carter, and then delivered to the governor’s office that very day by one of DeBerry’s subordinates. At the time, Carter was suffering from an Alzheimer’s-like mental illness. The kicker: not only did the DeBerry-drafted letter announce Carter’s resignation, it also named DeBerry as Carter’s replacement. Some coverage of the scandal below:
Now, of course, DeBerry denied wrongdoing. And apparently the lawsuit was settled before trial, so we’ll never know who was “right or wrong” here. But the entire situation smells incredibly nasty, doesn’t it?
Wake Up Georgia: Courts Are Opening the Door on Wrongful Foreclosure
Posted on March 15, 2013 by Neil Garfield
PRACTICE AND PROCEDURE IN GEORGIA
If you are seeking legal representation or other services call our Florida customer service number at 954-495-9867 (East Coast, including Georgia – the Atlanta Area) and for the West coast the number remains 520-405-1688. Customer service for the livinglies store with workbooks, services and analysis remains the same at 520-405-1688. The people who answer the phone are NOT attorneys and NOT permitted to provide any legal advice, but they can guide you toward some of our products and services.
The selection of an attorney is an important decision and should only be made after you have interviewed licensed attorneys familiar with investment banking, securities, property law, consumer law, mortgages, foreclosures, and collection procedures. This site is dedicated to providing those services directly or indirectly through attorneys seeking guidance or assistance in representing consumers and homeowners. We are available to any lawyer seeking assistance anywhere in the country, U.S. possessions and territories. Neil Garfield is a licensed member of the Florida Bar and is qualified to appear as an expert witness or litigator in in several states including the district of Columbia. The information on this blog is general information and should NEVER be considered to be advice on one specific case. Consultation with a licensed attorney is required in this highly complex field.
Editor’s Note: For years Georgia has been considered by most attorneys to be a “red” state that, along with states like Tennessee showed no mercy on borrowers because of the prejudgment that the foreclosure mess was the fault of borrowers. For years they have ignored the now obvious truth that the defective mortgages and wrongful foreclosures do make a difference.
Now, reflecting inquiries from Courts below who are studying the the issue instead of issuing orders based upon a knee-jerk response, the State has taken a decided turn toward the application of law over presumption and bias. There is even reason to believe that the door is open a crack for past wrongful foreclosures, as the Courts grapple with the fact that thousands of foreclosures were forced through the system by strangers to the transaction and thousands of wrongful foreclosure suits have been dismissed because of the assumption by judges that no bank would lie directly to the court. It was a big lie and apparently the banks were right in thinking there was little risk to them.
Look at Pratt’s Journal of Bankruptcy Law February/ March Issue for an article on “Foreclosure Law in the Wake of Recent Decisions on Residential Mortgage Loans: The Situation in Georgia” by Ashby Kent Fox, Shea Sullivan and Amanda Wilson. Our own lawyers have out in front on these issues for a couple of years but encountering a lot of resistance — although lately they are reporting that the Courts are listening more closely.
The Georgia Supreme Court has now weighed in (Reese v Provident) and decided quite obviously that something is rotten in Georgia. Focusing on Georgia’s foreclosure notice statute but actually speaking to the substantive defects in the mortgages and foreclosures, the majority held, as a matter of law, that
o.c.G.a. § 44-14- 162.2(a), requires the person or entity conducting a non-judicial foreclosure of a residential mortgage loan to provide the borrower/debtor with a written notice of the foreclosure sale that discloses not only “the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor” (the language that appears in the statute), but also the identity of the “secured creditor” (not required by the statutory language, but which the majority inferred based on legislative intent). the majority further found that the failure to identify the “secured creditor” in the foreclosure notice renders the notice, and any subsequent foreclosure sale, invalid as a matter of law.
Once again I caution litigators that this will not dispose of your case permanently and that such rulings be used strategically so that you are not another hallway lawyer explaining how you were right but the judge ruled against you anyway. Notice provisions can be cured, non-existent transactions cannot be cured. Leading with the numbers (the money trail” and THEN using decisions like this to corroborate your argument will get you a lot more traction than leading with defective paperwork.
As I have said repeatedly, no judge, no matter how sympathetic to borrowers is going to give much relief when the borrower has admitted the debt, note, mortgage and default. These must be denied and lawyers should study up on the subject as to why they can and should be denied, and to persevere through discovery to show that the note, mortgage, default and even the debt have all been faked by strangers to the transaction.
Forcing the opposing side to show that they are a bona fide holder FOR VALUE will flush out the truth — that originator in nearly all cases was never the lender, creditor or even broker. They were simply paid naked nominees just like MERS, leaving no real party in interest on the note or mortgage, no consideration between the parties stated on the note and mortgage or notice of default, and no meeting of minds between the real lender (who is NOT in privity with the nominee lender) who, as an investor received a prospectus and Pooling and Servicing Agreement and advanced money under the mistaken belief they were buying bonds of an entity that either did not exist or was simply ignored by the investment banker and the other participants in the false securitization scheme that was used to cover-up a PONZI scheme.
Practice tips: DENY and DISCOVER. Ask for proof of payment and proof of loss. The assignments, the note and the mortgage are not proof of the debt, they are potentially evidence of the debt and the security agreement ONLY if the foundation is there (testimony by witness with personal knowledge, with exhibits of wire transfer receipts and wire transfer instructions, cancelled checks etc.) to show that the originator shown as payee and “Secured party” or “beneficiary” was lender of money.
Make them show that they booked the loan as a receivable with a reserve for default. Discover that they actually booked the transaction as a fee for service (shown on the income statement) and never entered it on their balance sheet.
And PLEASE study up on voir dire, objections and cross examination. If you are not quick and ready objections to leading questions and other issues might well be waived unless you interrupt the questioning as fast as you can stand up. If you study up on hearsay and the business records exception to hearsay you will discover that in practically no case were the business records qualified as exceptions to the hearsay rule. But if you don’t raise it, if you don’t have statutory and case law and even a memo on the subject the judge is going to rule against you. We are talking about good lawyering here and not bias amongst judges.
<a href="http://www.gopetition.com/petitions/mandated-national-land-record-audit.html">National Land Records Audit Petition | GoPetition</a>
3am Home Eviction in DeKalb Sparks Outrage
Written By: APN STAFF
5-9-2012
By Scott Brown, Special to the Atlanta Progressive News
(APN) DEKALB COUNTY — In the early morning hours of Wednesday, May 02, 2012, over twenty deputies from the Dekalb County Sheriff’s Department, under orders from Sheriff Thomas Brown, drilled the locks and kicked in the doors of the Christine Frazer’s home with guns drawn in order to evict four generations of family members.
Frazer, the homeowner, had fallen behind on her mortgage payments and was foreclosed upon in October 2011.
According to Frazer, her family members, including her 85-year-old mother and 3-year-old grandson, were told by officers to "act like it was a fire drill" and grab what they could and get out.
Frazer said they were not even allowed a shower before being escorted from her home of eighteen years at three in the morning.
She described the event as "literally a nightmare."
Her three dogs were taken to the pound and all of her belongings were put out on the street, which police had completely closed off.
At a press conference in front of her belongings hours after the eviction, Frazer lamented, "I’ve been in this home eighteen years. My daughter was raised here. My husband died here. My grandson came home here. This is my home."
"They came in as if they were executing a warrant to find drugs. It makes no sense,” Frazer’s lawyer, Joshua Davis, said of the eviction.
Sheriff Thomas Brown told Fox 5 television news that he attributed the unusual timing and the large number of officers used in the eviction to the presence of Occupy Atlanta protesters who had been camping in the yard for the past four months in an attempt to prevent what they described as an illegal eviction based on an illegal foreclosure.
Frazer has filed a lawsuit, which is currently pending in the Federal District Court for the Northern District of Georgia, against the company that foreclosed on her home last October, Investors One Corporation.
Ownership of the mortgage has changed three times in the past six months and, according to Frazer’s lawyer, the chain of title was broken when the previous owner of the mortgage, a bank based in Indiana, failed to uphold their legal obligation to transfer the title, rendering the foreclosure by Investors One Corporation fraudulent.
"There are judges that are in place that could have done a little research, if they’d done a little title search they’d have seen that something in the milk wasn’t clean,” Frazer said.
Frazer, 63, began to fall behind on her mortgage payments after losing her husband and her job in 2009. She has been unable to find a job ever since and is currently on early retirement social security.
Sheriff Brown told Fox 5 he gave the homeowner ample time to reach a settlement with the mortgage holder before serving the eviction notice.
Frazer said she tried to restructure the mortgage, but Investors One Corporation was uncooperative and intent on foreclosure, only offering to reinstate the loan if she was able to pay 20,000 dollars in cash. Currently she has paid over 240,000 dollars on the mortgage on a house currently appraised at only 40,000 dollars.
On Monday, May 07, 2012, in response to the early morning eviction ordered by Sheriff Thomas Brown, Occupy Atlanta held a protest in front of the Dekalb County Sheriff’s office.
At one point, more protesters pulled up in a van full of Frazer’s belongings, and Occupy Atlanta unloaded mattresses, furniture, and bags of other items that deputies had left on the curb nearly one week prior and piled them in front of the doors to the Sheriff’s Office, along with signs reading “Fraudclosure” and “Wall St. criminals are not convicted. The people are evicted.”
Standing before a pile of her belongings in front of the Sheriff’s Office during a press conference, Frazer said, "This is not just about me and my family, this is about families across America."
Frazer is certainly not alone in her struggle to keep her home. According to Corelogic, Inc., a company specializing in financial analysis, over 1.4 million homes in the US are currently in the foreclosure process, and states like Georgia have been ground zero in the housing crisis.
A recent Case-Shiller Home Price Indices report shows Metro Atlanta home prices fell 17.3 percent between February 2011 and February 2012, a fact that is fueling the continuing foreclosure crisis in the state.
Occupy Atlanta has taken up home defense as a tactic for combating what protesters view as unfair and illegal practices by banks and the financial industry as a whole.
Leila Abadir, one of the Occupy Atlanta protesters who had been camping on the lawn at the Frazer household, says the fight is not over. Occupy Atlanta will continue to assist the Frazer family in finding proper housing, she said.
They will also keep working to shed light on what she believes to be unethical and potentially criminal activity on the part of Investors One Corporation.
According to Fox 5, after most of the protesters left the sheriff’s office, police surrounded a remaining protester’s vehicle, which they impounded for possible evidence. They issued two citations to two people for littering and arrested one of them because he did not have identification on him.
It is truly amazing, the number of wrongful foreclosure complaints that are on the internet. People search around for a complaint to copy and file in the Court, and wallah! That one looks like a winner!
Ever do a google search on "wrongful foreclosure"? Amazingly… there are millions of returns on that phrase.
The other thing that no one considers, is who really puts all those sample complaints on the web? Is every site on the up and up, or do the banks contribute their share with mis-information. It would have to be that way.
I have noticed some of the complaints that have ended up in the Courts, filed by pro se litigants. Obviously, someone put that complaint out there, just so that these people would file it and fail. Like… Well, there is another we won’t have to worry about fighting us in the courts. So who? Who would do such a thing?
Clearly another pro se litigant would not take an unproven complaint and suggest to others that it is a winner.
And God knows, the plethora of bad case law already created from the rulings of federal courts, ESPECIALLY rulings from US District Court or the Northern District of Georgia, with the exception of course of Amy Totenberg’s rulings. Those are actually the only ones worth readings.
If you have a case in front of any other judge in NDGa., why even wait till its over to read the ruling, you know what it will say.
http://www.wsbtv.com/news/news/local/new-rule-allowing-ga-homeowners-halt-foreclosures/nP4wb/
FORSYTH COUNTY, Ga. —
A metro Atlanta consumer attorney said he has already been able to halt a dozen foreclosures using a new ruling from the Georgia Court of Appeals.
The latest case involves a Forsyth County home and lending giant Wells Fargo.
"Having to move out of the dream home that my son and I built is the worst thing I could think of," said homeowner David Stripland.
The recession hit his car dealership around the same time the housing crisis, cutting his home’s value more than 60 percent.
"You can’t sell it, you can’t re-fi, you have to get a modification," said his wife, Paulette.
The Striplands said the process went on for more than a year. They then received a string of foreclosure notices from Wells Fargo.
"Foreclosure. It’s a shame," said Paulette through a stream of tears.
The foreclosure has now been halted, after a recent ruling by the state appellate court.
Wells Fargo does not hold the note. It only services the loan. The note holder is not clearly stated.
The Striplands paid forensic auditors who found the loan has been divided up into dozens of securities sold to investors.
"Once these notes are chopped up and turned into bonds, securities, whatever; who really owns it?" asked their attorney, Bob Thompson.
But the Georgia Court of Appeals ruling in a case involving a Cobb County family and servicers Provident Funding, LLC, ruled homeowners have "a right to know" to whom they actually owe the money, lest they be "misled or confused."
"Even a dog in Georgia has the right to know who’s kicking him," Emory law professor Frank Alexander told Channel 2’s reporting partners at the Atlanta Journal Constitution.
"These big banks and Wall Street have to follow the law of the land, just like I do," said Paulette Stripland.
Channel 2’s Jim Strickland learned just before 5 p.m. Thursday, Wells Fargo had halted the foreclosure.
Thompson said most homeowners in peril should take action on their own.
Call and get it stopped and get yourself some time, because with time most people can work things out," he said.
It is likely Provident will appeal to the state supreme court.
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Evolution isn't working fast enough. More dumbasses need to be shot.
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Dog Training Guidance
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Your "Pro Se" Foreclosure Fight Solution!
Change is possible
Where Deplorables Hang Out
A Finance Education Website
Badge, Gun, Attitude. Yep, I'm Ready. Don't like my opinions? Go away, read another blog.
Research and writing about the Mutiny of 1857
A gathering of ‘Prager-like people’ seeking together to identify and clarify the issues challenging our contemporary America.
Evolution isn't working fast enough. More dumbasses need to be shot.
Bringing Social Issues To The Forefront
A study of judges' unaccountability and consequent riskless abuse of power: advocating exposure, compensation of abusees, and reform
friend-thru-the-storm
All you need to know about life, the universe, everything
<3's
Just a Farmer & Farmher, inspiring others to live the homesteading dream!
For Dog Lovers Only
Dog Training Guidance
Where we keep you up to date with the latest information in the 2A community!
Your "Pro Se" Foreclosure Fight Solution!
Change is possible
Where Deplorables Hang Out
Georgia's Corrupt Judicial System 
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