Looks like the Bankruptcy Courts in San Diego are challenging
parties far removed from the original mortgage to provide actual proof
that they own the mortgage, and have standing to engage with the
homeowners.
Kenneth Andrews, a California attorney who also runs the blog San Diego Predatory Lending,explains:
"One of our lawyers was sitting in court waiting on a hearing and heard what happened. This was a relief from stay motion. Something the lender has to do to proceed on a bk. The motion was unopposed meaning the debtor did not defend it. THE JUDGE DID THIS ON HER OWN!!!!. The lawyers fell off the bench when they heard it.
We are now going to oppose every relief from stay if the names on the mortgages don’t match the parities filing in court. Same as the Boyko case in Ohio but in an NON-Judicial foreclosure state.
EVEN BIGGER though is that if the lender has not perfected their lien when the bk is filed, we can avoid it. Meaning they lose their security and stand in line with the rest of the unsecured creditors. The debtors get a 75k homestead that stands in front of the now unsecured lender.
This is a huge problem for securitized mortgages."
No more legal paper free ride — the parties must prove they are a successor in interest to the original mortgage.
Here is the ruling (PDF below).
If you can’t read that:
MOVANT HAS FAILED TO PROVIDE EVIDENCE THAT IT IS ENTITLED TO BRING MOTION
ORIGINAL NOTE AND DEED OF TRUST IN NAME OF MORTGAGE LENDER USA AND NOT MOVANT
NO EVIDENCE OF ASSIGNMENT TO MOVANT
This is becoming bigger and bigger story.
The legal point is indisputable–and so obvious that even POTUS would probably understand it the first time around. It’s called a proof of claim because, after all, to make a claim in a bankruptcy proceeding, you’ve got to be owed the money.
Who knows whether this a one-off or a big deal? During the S&L crisis 20 years ago, sloppy servicing became a real problem–a man named Dean Couch, for instance, went to jail in Texas, numerous home owners found themselves, in effect, liable for payments remitted but never received, etc. etc. And 35 years ago, many of the Wall Street firms of the day foundered on their back offices (anybody remember F.I. Dupont or Glore Forgenstatts?) and their inability to clear trades.
My guess is that the documentation is pretty good from the warehouse forward into the securitization, but coming into the warehouse is anybody’s guess. Stuff was doubtlessly batched, etc. And, if the originator has disappeared, the undertaking to cure any defects in documentation probably isn’t worth the paper it’s printed on (assuming it was ever executed).
I sent this to TBP. What so amazing about this is that it was an unopposed motion for relief from stay. Lenders have to get relief from stay to move forward on foreclosure.
The judge did this all by herself-without prompting from the debtor or the debtor’s attorney.
This could get worse too. There is an argument to be made that the lien has not been perfected. If that is true, it may be possible to avoid the lien. That means the lender would stand in line with the rest of the unsecured creditors and the trustee would stand in front of the lender with the debtor’s homestead exemption in there too.
This has not happened yet, but someone will make that argument soon.
This is getting worse every day for the securitized mortgage business.
Barry, I realize that these are public documents, but still. This story is about the servicer being a bonehead. It’s not about the debtors. Why not take a minute with Adobe to crop the names off?
The debtors didn’t ask for information about their BK to be all over the intertoobz. People who are just curious about their neighbors’ financial distress should be forced to look these things up the hard way, as far as I’m concerned.
As an attorney, I was always a little uncomfortable with the media blanking out the names of sexual assault victims — it almost “criminalized” the victim.
I philosophically disagreed with it, but I understood, and felt it was the party’s own choice to make — not mine.
But whiting out the names of a voluntary bankruptcy filer from a public court document — that you can barely see anyway? I cannot find a valid reason to do that.
calculatedrisk covered this last month. see http://calculatedrisk.blogspot.com/2007/11/in-re-foreclosure-cases.html
Quoting a dismissal in a similar case:
~~~
BR: The NYT extensively covered the Ohio case. This is now part of a broader trend — subsequent parties of interest no longer get an automatic — they actually have to prove their cases, including standing, succession in interest, etc.
Novel concept!
Sounds like it’s time for a Calculated Risk post about privacy rights for debtors!
Thanks for the fuel, Barry!! I’m going to get a spot by the fire! :p
I can see how this would create a hassle re proving up the assignment (i.e., proving that the creditor has standing) but I don’t see how this could have any impact on the question of perfection. If the deed of trust was recorded, and the money advanced, the lien is perfected. Proving who owns the lien isn’t the same as proving that there is a lien.
Note that this is substantively different than the Ohio cases. In those cases the lender was asking for a judgment of foreclosure. Here the lender is just asking for the bankruptcy stay to be lifted. I suppose it makes sense for the bankruptcy judge to want evidence that the creditor really is a creditor before lifting the stay, but it looks a bit “proactive” to me, particularly as there was no opposition to the motion by the debtors.
So if I understand this concept correctly, the next bubble will be in Law Firms?
I remember reading an article six months or so ago (that I can’t find on Google right now) and there was some 27 year old hedgehog commenting on all of this mess (at the time not considered a mess) and he was saying something like, “we’ve sliced and diced and sold and resold the debt so many ways to so many people we have no idea who we own money to at this point”. I thought he was rather foolish to admit that, but he probably makes a lot of money and thus thinks he is doing the right thing because his large paycheck couldn’t possibly go to someone who was an idiot and therefore he can say whatever he wants to and if you haven’t been paying attention, the people on the financial entertainment shows say everything is fine.
There must be some Buffet Wisdom Nugget out there about this sort of thing. Something like, “if someone owes you money, write it down somewhere, maybe a put a post it on the fridge, or depending on the number of zeroes, perhaps a tattoo on your forehead, because some day you might want them to pay it back and contrary to current faith based investing beliefs, loaning people money doesn’t guarantee they will pay it back so you might want to have their contact info handy.”.
12Percentile:
I think Buffet would be more pithy. Something like “If you buy something, keep the receipt in a safe place you won’t forget”
You are probably right. Does that mean I have no hope of being the next Buffet?
dang.
A question for any industry insiders then: How far back in time does this slicing and dicing go? I confess that I’m not aware of when the practice of mortgage securitization really took off. And what about all the mortgages that were fed into it? In other words, are there 10?, 15?, 20? year old mortgages that may predate the practice becoming widespread but eventually got vacuumed up in the rush to create debt securities?
k2163,
Do you mean to imply that the judge in reference is taking on an activist role? Your use of the phrase “All by herself – without prompting” gives me that impression. I can’t imagine that by merely attempting to identify the parties giving presence in court, that a given judge could be considered to be acting “all by herself” in doing so.
What’s so unusual about a judge that denies a motion because the movant can’t prove it’s the secured interest owner and the authorized party to make the motion?
We have an adversarial legal system. An attorney represents the plaintiff and one the defendant. In this case the movant and the respondent.
If one party makes a motion and the other does note respond, the matter is normally granted in favor or the moving party.
This is a form of “default.”
In the Boyko case, I believe there was a party opposing the judicial forecloser. An attorney that briefed the case and said, hey, this is not right.
But in this case, the debtor did not oppose the relief from stay. In other words, they said, “go ahead and foreclose.”
But the Judge said “wait a minute, you don’t seem to be the right party here. There are bigger issues that just this one case. There is the administration of bankruptcy cases in my court. You need to make at least some showing that you own this note.”
That is very unusual. Judges don’t normally act sua sponte.
That’s all I’m saying.
I’m not calling her an activist. I’m pointing out an unusual ruling on an unopposed relief from stay.
Originally posted by Eclectic:
“In the Boyko case, I believe there was a party opposing the judicial forecloser. An attorney that briefed the case and said, hey, this is not right.”
I believe that Eclectic is MISTAKEN. I believe that MOST of the defendants in BOYKO were UNREPRESENTED.
I think that many are failing to appreciate that in BOYKO the Judge had ALREADY ORDERED Deutsche Bank to produce evidence of ownership. And it APPEARS that the plaintiff then FABRICATED the evidence! The Judge then gave the plaintiff the BENEFIT OF THE DOUBT and DISMISSED WITHOUT PREJUDICE on the theory that the fabricated assignments showed on their face that the plaintiff did NOT have ownership at the date that suit was initiated and therefore lacked requisite STANDING.
See: http://www.msfraud.org/law/lounge/Deutsche%20Bank%20Foreclosures%20Dismissed.pdf
There are also two other similar rulings in the SAME District:
http://www.msfraud.org/law/lounge/RoseRuling20071115.pdf
http://www.msfraud.org/law/lounge/Foreclosure_Dismissals.OMalley.pdf
Rather than this being a tough ruling on the plaintiff, it was a GIFT. If I had been sitting on the bench, there would have been a sua sponte further inquiry into the origin of the assignments and probably sanctions, a dismissal WITH PREJUDICE and a disciplinary referral!
ANYONE DEFENDING A BANKRUPTCY PROOF OF CLAIM SHOULD ALWAYS DEMAND PROOF OF OWNERSHIP. AND IF PROOF IS PRESENTED, GET A GOOD EXPERT WITNESS TO TAKE A LOOK AT IT! I CAN PROBABLY PROVE FABRICATION HALF THE TIME! IF YOU ARE NOT REALIZING THAT FABRICATIONS ARE BEING PRESENTED, YOU ARE EITHER NOT LOOKING OR DON’T UNDERSTAND WHAT IT IS YOU ARE LOOKING AT!
If anybody needs expert HELP getting a proof of claim dismissed, drop me a note!
William A. Roper, Jr.,
You erroneously credited a quote to me that was made by k2163. Posters are identified at the bottom of their comments under the dotted blue line.
—
No complaints, just correcting you for the record.
Sorry about that Eclectic! Actually, I noted and realized my mistake when I saw my post go up with the attribution at the bottom rather than at the top. This was my first visit to this site!
can somebody explain this in layman’s terms. What (not so) exactly happened?
The “Long Tail” and the “Weakest Link” –
When the Mortgage was granted on less than adequate “strength” every following holder entered a weaker link – and each successor – even weaker. Let’s call it what it is – White Collar Fraud – and everyone who is involved in passing this document – is part of this fraud knowingly or unknowingly. Government protection of its friends – will be done in the “light of day.”
Nothing will be served and the homeowner needs to be protected and everyone else should lose as much as they can – After all
who does the “let the buyer beware” apply to?
Hard to say without having practiced before that particular judge, he/she could have a standing order that the moving party must file proof that it is entitled to bring the motion.
Bam,
This is maybe longer than you want, but it’s not just for you.
The problem in the Boyko related references:
http://www.google.com/search?hl=en&q=Boyko+ruling&btnG=Search
…centers on the fact that an original mortgage lender sold a particular mortgage contract to a secondary entity. It’s done all the time because a mortgage is generally negotiable much like a bond is. Homeowners typically don’t know or particularly care who owns their mortgages, although they sometimes complain about changes in the servicing agent they have to make payments to because of its level of service. That’s not a factor in this case. One might make mortgage payments to the same original lender for 30 years and never realize they don’t own the mortgage anymore, or never did, but are merely being retained to service it by its subsequent owner.
However, now in foreclosure motions before the BK judge, the secondary entity (subsequent owner) can’t prove to the BK judge’s satisfaction that it bought the mortgage from that lender, and thus the BK judge is not allowing them formal ‘standing’ in BK proceedings, meaning he hasn’t certified them as an authorized party to make the motions. He’s threatened to dismiss the foreclosure if they can’t soon provide the proof.
I suspect that the judge probably accepts the idea that the secondary entity is indeed the valid owner. That matter is not in contention between the original lender and the subsequent owner, who has possession of documents that would be acceptable proof with the original lender, if that were the issue and it’s not. However, the judge must interpret his responsibility according to formal Federal Rules For Bankruptcy Procedure* and, to now at least, he doesn’t accept the proof offered as satisfactory to those rules, and he’s not allowing his court to be told what proof IS necessary, and he’s amusing and entertaining all those who have read his ruling (except of course attorneys for the hapless subsequent owner) and find it suggestive of his high level of sarcasm being used to tell them so. You’ll have to use some links to find and read it for yourself if you want to experience highbrow judicial sarcastic wit, or frustration, and it’s probably mostly frustration.
*The rules I mentioned govern the manner in which a BK judge proceeds. Here’s a link to the rules courtesy of Cornell University Law School. I prefer not to sub-link to those rules for you, which would upstage Cornell’s homepage:
http://www.law.cornell.edu/donors/solicit.php?http_referer=/rules/frbp/rules.htm
Some commentary is being offered by Big Picture readers supporting the notion that the BK judge in the topic story is demonstrating a proactive stance, and further that it may portend a trend for her and with many other BK judges for the same proactivity in favor of defending homeowners, whether they are represented or not, and whether they oppose the forclosures or not, or whether they oppose the motions to lift their stays against foreclosure or not.
It’s typical hyperbole issued by those who want to fan this into a fire at the expense of lenders attempting to foreclose. It’s no such thing. Commenters haven’t taken the time to read and understand the rules I’ve linked for you.
It’ll only be a fire for the *idiots* that didn’t do their diligence and now want to play Kuboke with a BK judge.
Whomever is the true owner of the mortgage will ultimately prevail as having the right to make motions in BK court, wit and sarcasm not-wit-standing. God!… that’s one of my best puns EVER! There should be widespread and worldwide laughter echoing twice ’round the planet, like Krakatoa’s gigantic blast wave was claimed to resound:
http://en.wikipedia.org/wiki/Krakatoa
Finally, Congress, The White House and other institutions of government, even the Supreme Court should clearly understand that there may be cases where traditional proofs needed by BK courts to give bonafide secured lenders ‘standing’ to facilitate their otherwise honorable actions won’t exist in a perfect form, because of the nature of that changed industry that changed the character of their traditional business transactions.
The reason I’ve taken the time to write this long piece is because it is spectacularly supportive of my contention that installing a National Ombudsman and mechanism for voluntary mediated workouts is an absolute must, to avoid all this patent idiocy.
If government doesn’t realize this, and soon, the hilarity of this case will be a commonly observed ball and chain around the neck of the mortgage industry and any attempts to facilitate orderly workouts between willing parties. Don’t you government types understand this?… You’re going to allow w-i-l-l-i-n-g parties to workouts to be thrown into the lion’s den of BK court, if you don’t create a National mechanism and an OMBUDSMAN to run it, to avoid needless cost and delay for those parties who are ready to meet the obvious consequences of their folly.
Are you listening, Congress?… White House?… Get the ombudsman cookin’ then!
Guys/Gals, thanks for the education…interesting stuff to a layman.
Show me another chase where a bk judge declined a non-opposed motion for relief from stay because the mortgage docs did not agree with the moving party’s name.
The FRBPs allow a judge to do this. It just did not happen in un-opposed motions before. At least I’ve never heard of it.
That is what is new and interesting here.
BTW, the judge is a she not a he.
http://www.signonsandiego.com/uniontrib/20071102/news_1n2diocese.html
Eclectic wrote, “….installing a National Ombudsman and mechanism for voluntary mediated workouts is an absolute must, to avoid all this patent idiocy.”
I believe the only patent idiocy that can occur in this situation is for homeowners, with 100%+ loans, to continue to subsidize the losses of lenders by making any payments whatsoever on assets declining in value.
Housing is in a classic recession due to an imbalance of supply/demand – workouts of existing loans cannot and will not resurrect this market.
When there is too much supply with too little demand, prices fall. Any attempt to salvage this market is an attempt to breach this economic principle – and when governments attempt to alter economic realities, it can only be called what it is: nationalization.
For me, I would rather experience a severe 2-3 year recession than to see a nationalized bailout. If the system fails due to systemic risk, perhaps it was not worth saving in the first place.
k2163,
Why don’t you show us another BK case in which the properly identified lender was given standing by the judge and *THEN* the lender’s unopposed motion was denied, or better still, you could even go and find enough of them to build a case in support of your ‘amazing’ statement made here on TBP (quoting you):
“What[s] so amazing about this is that it was an unopposed motion for relief from stay.” end quoting.
—
WowWee!… ZowWee!… Sounds like the End Of Time for the lenders, huh?… And, heck, then you’ve got ’em pinned down under the machine gun fire of “debtor’s homestead exemption” and “all by herself – without prompting” and “avoid the lien.” My my but aren’t you a toasty messenger of ominous tidings for the sinnin’ syndicators.
If I were them I’d just forfeit all my property before the Supernatural SheGod of BK-dom descends on ‘em and guts ‘em with her All-By-Herself-In-The-Flesh biased rulings, plus a razor sharp fingernail file… Ha ha!
It’s not valid to assume a trend in unopposed motion denials from some newly perceived hocus pocus notions of judicial advocacy, when in fact a BK judge will deny any plaintiff’s motion from any party he or she can’t confirm to be the authorized movantin’ plaintiff, whether the motion had been opposed or un-opposed by the debtor, because that’s what the rules require. If John Doe is the owner of a mortgage, then the BK court wants John Doe to prove he’s the owner. It ain’t a whole lot to ask, now is it?
What’s so amazing is how so many can so easily be suckered into notions of BK judges advocating for debtors, in official BK rulings no less!… after they’ve raised their hand and sworn before God and country to be blinded by the luvajustice…
Nothing personal… I just don’t buy the flavor of your music.
Winston, per you:
“I believe the only patent idiocy that can occur in this situation is for homeowners, with 100%+ loans, to continue to subsidize the losses of lenders by making any payments whatsoever on assets declining in value.” end quote.
—
Winston, you might as well get ready… because the patent office is about to go into hyperdrive. The staff will be on overtime and so busy handing out patents that they won’t get to go pee.
I think that everyone in this forum is still failing to appreciate that a VERY GOOD REASON for a Judge to DENY a motion for relief of stay is when the party seeking relief has failed to prove EITHER that it is the “real party in interest” OR that the party has ANY Constitutional STANDING. Nor is what has been being TAKEN for evidence for years evidence AT ALL, EXCEPT evidence of fabrication, forgery and perjury!
What began with three federal court orders last month has further spread to state courts in Ohio.
See Gregory KORTE’s story in the current edition of the Cincinatti Enquirer:
“Judge halts foreclosures
Says banks must prove they hold mortgages”
http://news.enquirer.com/apps/pbcs.dll/article?AID=/20071208/BIZ01/712080349
Anyone that thinks that this is a SMALL issue that is going to blow over hasn’t taken a look at the underlying assignments! Or if they HAVE looked at them, they do NOT know or understand what they are looking at!
If ANY of you are attorneys defending a client in a REAL foreclosure action, you might want to get in touch with me! Wouldn’t it be nice to PROVE that the plaintiff has fabricated the evidence that has been submitted to the Court? It is FAR EASIER than you think!
The problem is NOT securitization. It is laziness, incompetence, arrogance and corruption! There IS a spark in Ohio right now. And it is rapidly developing into a brush fire.
Maybe someone in California ought to take a little closer look. You might be able to start some fires of your OWN!
By the way, does anyone know a REALLY, REALLY GOOD class action lawyer willing to take a $500 billion case?
Barringo,
Have you ever seen a lawyer have 2 orgasms in under 30 seconds? Want to?
—
BTW, *note for wunsacon – please do not show the next link to any of your easily offended friends. It’s a depiction of patent hard-core carnal lust.
—
http://www.youtube.com/watch?v=gtHR530ElzA
Having read through all the posts I have to agree with the last comments by William A. Roper. A lot posters seemed to be focusing too much on what they percieved to be judicial activism. What the judge actually did was to protect a debtor from becoming a victim of what could develop into the next crooked industry – that of sharks and shysters initiating foreclosure proceedings on property they have no legal right to. With all the securitization and repackaging going, on most of the debtors probably have no idea who really holds their mortgage because the process of recording all the transactions is hopelessly behind the speed at which they have taken place.
LOL. Thanks, Eclectic. I’ll try that link.
“can somebody explain this in layman’s terms. What (not so) exactly happened?”
Originally Posted by: bam | Dec 9, 2007 7:20:01 AM
Part I
Let me BACK EVERYONE UP and give some background and context.
Professor Katherine M. PORTER, recently published a study showing an unbelievable rate of ERROR in lender filings in bankruptcy cases and failure of lenders to even document ANY inidicia of ownership. Porter, an associate professor of law at the University of Iowa, showed that questionable fees had been added to almost half of the loans she examined.
See http://www.law.uiowa.edu/faculty/katie-porter.php
“Misbehavior and Mistake in Bankruptcy Mortgage Claims”
By Katherine M. PORTER
University of Iowa College of Law Legal Studies Research Paper Series, #07-29
November 6, 2007
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1027961
“Dubious Fees Hit Borrowers in Foreclosures”
By Gretchen MORGENSON
New York Times
November 6, 2007
http://www.nytimes.com/2007/11/06/business/06mortgage.html
Shortly thereafter Judge Christopher BOYKO issued a ruling DISMISSING fourteen (14) mortgage foreclosures.
See the link to the opinion posted above.
“Foreclosures Hit a Snag for Lenders”
By GRETCHEN MORGENSON
New York Times
November 15, 2007
http://www.nytimes.com/2007/11/15/business/15lend.html
— more —
William A. Roper, Jr.
waroper@pobox.com
Nice touch Barringo. Don’t think I didn’t notice.
Here’s something for you, Barry, if you haven’t seen this yet
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/12/09/IN5BTNJ2V.DTL
There’s something about people that CAPITALIZE random words in their posts…generally, they are IDIOTS. In this case, it looks like Mr. Roper is trying to SPAM the site, and drum up some business.
This situation is actually quite ironic. Typically, defendants are tripping over themselves to get a case in federal court, because the rules and the judges are, in general, better than a state venue. Now it looks like defendants are going to be second guessing that decision.
BK judges are generally debtor-friendly. More importantly, they like their i’s dotted and their t’s crossed. If a creditor can’t do that, then they should expect to get hammered, sua sponte, by the court.
This does have the potential to be a big story. I’m not so sure the end will be any different, but the chapters inbetween may be rewritten (and much longer and more costly).
Apparently nobody here is or knows of a California attorney — if so, you would know two things.
1 — the Judge is actually incorrect under California law in requiring evidence of an assignment here; there is case law to the contrary in standing since 1960 or so.
2 — is anyone really surprised to see BK judges following suit in re: Boyko here? I mean, c’mon. In the past, evidence of assignment wasn’t required; now every judge, even in uncontested cases, is going to push for an assignment.
What’s next? News on a serial BK filer being thrown out of court?
Barry, don’t be so quick to buy into defendant’s counsel next time — of course they’re happy. They can make more fees by contesting every RFS motion now; and the second part about turning secured debt into unsecured debt is absolute horse manure.
**correction**
I have in error referred to Judge Boyko as being a U.S. Federal Bankruptcy Court Judge.
Actually, he is a U.S. District Court Judge for the Northern District of Ohio.
I apologize for my error, although I stand on the general merits of my commentary regarding BK judges and their duties to the rules referenced in my prior comments.
PART II
Additional federal judges in Northern Ohio followed suit in the weeks following the BOYKO Order. Again please see the links to opinions posted above.
“Judge Demands Documentation in Foreclosures”
By Gretchen MORGENSON
NY Times
Nov. 17, 2007
http://www.nytimes.com/2007/11/17/business/17lend.html
Subsequently, Ms. MORGENSON reported that Countrywide was under investigation by the United States Trustee:
“Foreclosure Charges by Lender Investigated”
By Gretchen MORGENSON
NY Times
Nov. 28, 2007
http://www.nytimes.com/2007/11/28/business/28lend.html
This story was picked up by other news outlets:
U.S. Trustee Subpoenas Countrywide
By ALEX VEIGA updated 4:26 p.m. ET, Wed., Nov. 28, 2007
CNBC
http://www.cnbc.com/id/22011783/for/cnbc
…
– more –
William A. Roper, Jr.
waroper@pobox.com
Part III
“Countrywide probed in bankruptcy cases
By Alex Veiga”
Associated Press
Posted on Thu, Nov. 29, 2007
http://www.philly.com/inquirer/business/20071129_Countrywide_probed_in_bankruptcy_cases.html
And people are talking about it:
“U.S. Trustee Program Playing Tough With Countrywide, Others”
Posted by Ashby Jones
Dec. 3, 2007, 10:01 am
http://blogs.wsj.com/law/2007/12/03/us-trustee-program-playing-tough-with-countrywide-others/
Most recently, we see that state courts in Ohio are starting to catch on. See the Gregory KORTE story cited above in the Cincinnati Enquirer – “Judge halts foreclosures: Says banks must prove they hold mortgages”.
Against this backdrop, the Bankruptcy Judge in the case cited above noticed that the entity seeking a relief of stay had offered the court NO EVIDENCE of ownership of the mortgage for which the lender was seeking relief. And, accordingly, the motion was dismissed.
Judge Louisa DeCarl ADLER’s dismissal hardly seems unusual except that it was apparently UNOPPOSED. The ruling is hardly a precedent of any sort, but seems to reflect a new concern on the part of the judiciary to plaintiff misconduct. Perhaps the surprising thing is that such a ruling would be meritworthy of discussion AT ALL. To the contrary, if judges had been looking a little more carefully, they would have found that lenders and their attorneys are now totally out of control and are engaging in massive FRAUD and evidence fabrication!
It seems VERY LIKELY that Judge ADLER is now aware of both documented evidence of widespead MISREPRESENTATIONS to bankruptcy courts nationally AND of the criminal investigation now underway.
Nor is Countrywide the ONLY entity under investigation. One Texas law firm has been sanctioned by bankruptcy courts in Texas several times now.
If YOU were sitting on the bench and were aware of allegations of widespread misconduct by plaintiffs would you grant motions where the motion and pleadings on thier face show a failure to demonstrate standing as the real party in interest?
I am NOT going to otherwise repeat discussion and analysis I have posted elsewhere on this topic. If you desire to read further, see my previous posts on the MS Fraud Message Board at http://www.msfraud.org/forum.htm
I can PROVE extensive fraud on the part of many major mortgage services in any courtroom in the country on any day of the week. I post under my REAL NAME, NOT a pseudenym. And I am a conservative Republican with prior experience as the president of a mortgage company. No radical here. FRAUD and FABRICATION is extensive and permeates foreclosures throughout the country. Most debtor / consumer / consumer bankruptcy attorneys do NOT have the knowledge of financial sophistication to know and understand what is happening. But then again, MOST defaulted borrowers go UNREPRESENTED.
There is a MINT to be made by a really competent lawyer working in foreclosure defense. I am NOT a lawyer. Just an interested bystander.
William A. Roper, Jr.
waroper@pobox.com
“1 — the Judge is actually incorrect under California law in requiring evidence of an assignment here; there is case law to the contrary in standing since 1960 or so.”
Posted by: Legal Guy | Dec 9, 2007 10:47:44 PM
I am NOT an attorney and perhaps I am mistaken, but it has been my impression that while lex situs mat control the substantive issues of the case lex fori controls the procedural issues. I would think that FEDERAL Rules and national law would control procedural issues in federal Bankruptcy Court. This seems to have been precisely what Judge Christopher BOYKO indicated in the case in the Northern District of Ohio (federal District Court, NOT Bankruptcy).
I would think that established California case law relating to standing would control in State Court!
Perhaps someone better familiar with California law and federal Bankruptcy Law and Rules could comment upon this.
Greetings,
While California statutes do not require evidence of an assignment to be recorded in the public land records in order for a party to ” have standing “, what absolutely is required, in a foreclosure action
( judicial or statutory ) and in a Motion for Relief From Stay in bankruptcy, is that the moving party have, and if challenged, be able to prove it has, a legal or an equitable interest in the collateral. That interest is founded on the Mortgage or Deed Of Trust, which is dependent on the Promissory Note, since the ” Mortgage follows the Note “, and a Mortgage without the Note is a nullity.
The question is; what can that party bring forth to show its has the interest required to be the ” real party in interest ” ?
Thank You.
SpyBoy