Showing posts with label State court (United States). Show all posts
Showing posts with label State court (United States). Show all posts

Monday, August 15, 2011

THE FORECLOSURE DETONATOR BLOG -- FILLED WITH EXCELLENT INFORMATION


New Foreclosure Blogs Posted

Our purpose here at TheForeclosureDetonatorFORUM has always been to encourage people to fight against injustice by fighting their foreclosures.  In keeping with our purpose our aim is to keep you informed.   If you have an attorney some of what we present to you may be of use to them.  If you are representing yourself Pro Se then the information is definitely useful.
ADDING TWO NEW LINKS
We have added two new links.  One – Foreclosure Industry – I have just come across and found it of value.   The other –LivingLies – by Neil Garfield has been around for quite some time and is probably the most read foreclosure defense blog around.  It is chock full of information.  You must take time to navigate through it but there is much valuable information that can be used by your attorney or yourself as Pro Se.
The foreclosure crisis is not yet over.  Foreclosures are on the rise again and there are literally millions of foreclosure cases around the country that have yet to make their way through the bogged down court systems.
As an introduction to Foreclosure Industry I offer this clip and link from a story I found very interesting.

How Fraudulent Joinder is Used to Remove Cases to Federal Court

This weekend, I worked on a Motion to Remand. The bank removed my case to federal court, which is standard procedure these days, at least here in Arizona. The issue of fraudulent joinder was raised, which led me to some interesting information on the subject.
I’m posting this because I don’t know how many lawyers are familiar with fraudulent joinder, and it’s increasingly being used in foreclosures in removals to federal court.
Essentially, fraudulent joinder is an emerging doctrine being used by bank defendants who don’t want to litigate in state courts.
Removal based on general diversity jurisdiction is proper only when there is complete diversity among the parties and there is no properly joined and served in-state defendant.
In plain language, this means that removal from a state court to a federal court is allowable only when all parties are not citizens of the state where they lawsuit it filed.
So, if a plaintiff wants to defeat diversity jurisdiction, they may add (sue) a non-diverse or in-state defendant along with the diverse defendants.
This makes the non-diverse or in-state defendant a “jurisdictional spoiler” because it “spoils” the diversity of all defendants, which would normally keep the case in state courts.
This means that the case cannot be removed unless ALL defendants are diverse, and if one party is NOT diverse, removal is not appropriate.
But this doesn’t stop the banks. They simply allege that the non-diverse party was fraudulently joined. In other words, the only reason the plaintiff added the non-diverse party was to keep the case in state courts.
Read More…click here
Refer to these sites and others in your fight against injustice that is destroying the American way of life … and our Republic.
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Monday, August 1, 2011

PRO PER LITIGANT, AFTER BEING HAMMERED BY THE JUDGE AND BEING TOLD SHE WAS CRAZY, HAS BEEN OBJECTING LIKE CRAZY. NOW IT HAS PAID OFF. THIS IS A GREAT EXAMPLE OF WHAT IT TAKES TO SUCCEED AS A PRO SE (PRO PER IN CALIFORNIA) LITITGANT.

Cal. BKR: No Trust Identified, No Relief From Stay

Posted on August 1, 2011 by Neil Garfield

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PRO SE LITIGANT NAILS US BANK — NDEX WEST SHELL GAME

see in RE Deamicis – Real Party in Interest – For Publication

NOTABLE QUOTES FROM CASE:
“A motion for relief from the automatic stay must be prosecuted by the real party in interest… “party in interest” under section 362 must be determined on a case by case basis, with reference to the interest asserted and how that interest is affected by the automatic stay.” [Court refers to In re Veal, 9th Circuit, BAP 2011].
“The problem with this Motion lies in the fact that three different proceedings have now been prosecuted in the state court and in this bankruptcy court by three different entities.
“If USBNA was the wrong party to bring the first 362 motion, then by the same logic the court is not persuaded that the Terwin Trust is the right party to enforce the U.D. Judgment which was not issued in its name.

“The Terwin Trust offers no evidence to suggest that the entity identified in the court pleadings and the U.D. Judgment as “U.S. Bank National Association as indenture Trustee” even exists separate from the specific trust(s) for which it is supposed to serve.” (e.s.)

__________________________________________________________________________________________________
By Dan Edstrom, Senior Securitization Analyst, Livinglies
I am not a lawyer and this is not legal advice.  This email contains my opinions and is for educational purposes only.
This case is HUGE for what it says, which is exactly what Jim Macklin and I have been saying.  In my (non-legal) opinion, California Civil Code 1558 applies (although it was not mentioned directly in this case).  This case will have an impact in a HUGE number of cases where loans were securitized.  This is because in a large number of cases we have analyzed (including our own cases), no trust is identified.  Or where a “trust” is identified, the name given is not the actual name of any trust.  In many cases they list the names of the certificates and not the legal name of the trust.
This case shows that you should focus on these issues where they apply.  Also remember that where a trust is private, there is no publicly available document showing that the trust was actually created.  In my opinion, without presenting the trust document (Pooling and Servicing Agreement, Trust Agreement, etc.), there is no proof that the trust itself actually exists.  For the in RE Deamicis case, the trust is a private trust and the documents showing that the trust was formed and constituted are not available through the SEC.  So even if they somehow overcome the obstacles in front of them now, they will have to prove the trust itself exists and what it can actually do (capacity).
Speaking of where they apply, in Fannie, Freddie and Ginnie cases this is HUGE.  Because they each securitized the loans and do not even identify that a trust actually exists.
In my case I have an assignment of my loan from Mortgage Lenders Network (the originator) to US Bank, NA as Trustee by Residential Funding Company, LLC FKA Residential Funding Corporation Attorney in Fact.  How this would relate to the trust my loan was allegedly conveyed to is beyond my understanding.  The name of the Trust is RASC Series 2005-EMX4.  Residential Funding was the sponsor of the trust.  The attorney in fact is (allegedly) Wells Fargo Bank.  By failing to identify the trust, this assignment is meaningless.
I have a 2nd assignment done some 5 months later.  The assignment this time was from Mortgage Lenders Network to U S Bank NA, as Trustee.  This time they completely changed it, but it is still meaningless.  Plus they never rescinded the first assignment.
My Substitution of Trustee was done by “Wells Fargo Bank NA, attorney in fact for U S Bank National Association, as Trustee” …   Again, a meaningless entry that fails to actual name any entity.
Attached is this case, plus my two assignments and my Substitution of Trustee for reference.
[EDITOR'S NOTE: THE FIRST ASSIGNMENT WAS PROBABLY ROBO-SIGNED. The substitution of trustee, a document often just glanced over, tells a story that will plague  the banks and those in the title business for decades unless the truth be known and told, to wit: Edstrom, homeowner, signed a deed of trust to MERS and his original "lender." The substitution is signed by (probably robo-signed, forged in other words) Karen Abernathy as "assistant secretary." (A sure sign of robo-signing is when someone is identified as "assistant secretary" on a document as important as substitution of trustee with the power of sale over hundreds of thousands of dollars in real property.
Karen Abernathy is thus said to have signed this document and is said to be an assistant secretary. The question is “assistant secretary to what and to whom?” It doesn’t say. Above her signature is Wells Fargo Bank, NA, but it is not saying it is acting as a bank. It says it is acting as “attorney in fact.” Any title writer will tell you that without the written power of attorney in recordable form, that signature is worthless. It immediately clouds and probably slanders the title of Edstrom.
But it doesn’t stop there. Karen Abernathy, assistant secretary to somebody somewhere is signing on the signature line for Wells Fargo who in turn is signing for “U.S. Bank National Association, as Trustee.” The question first is “Who is U.S. Bank, and since they are not appearing as a bank, but instead appearing as “trustee” what is the name of the trust for whom they are signing” (see above case). Is U.S. Bank., Trustee an actual entity? The answer is no it isn’t unless it identifies the Trust, which this document does not.
But wait, there’s more. There is nothing in the document that recites the authority of US Bank, Wells Fargo or Karen Abernathy to sign anything in this chain of title since before this time none of them were mentioned anywhere in the chain of title. So what we have here is a document that looks official but says nothing. And that means that ALL ACTIONS FLOWING FROM THE “SUBSTITUTION OF TRUSTEE” ARE VOID, WHETHER IT IS FORECLOSURE, EVICTION, SATISFACTION OF MORTGAGE OR SALE OF PROPERTY TO A THIRD PARTY AFTER A SUPPOSED AUCTION SALE WHICH WAS ALSO NOT REAL.
By the way this judge HAMMERED Ruth in the beginning, basically telling her she was crazy and she could not list the property as part of her estate.  She has been fighting all of her cases in pro per and objecting like crazy – and now it has paid off.  But she still needs a good lawyer.  When Wells Fargo changed their mind as to who the real party in interest was (I think this was a case in Mass. or somewhere on the East coast), they were sanctioned $800,000).Thank you,
Daniel EdstromDTC-Systems
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | , , , , ,, , , , , , , , , , , , , ,, , , 
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5 Responses

  1. leapfrog, on August 1, 2011 at 2:20 pm said:
    Yes, great job, Dan! And hello, Gwen, long-time no see. Did you pass your bar exam? Hope so! And hello to Carie too, still fighting & feisty, I see. I’m in a good mood, what the heck I’ll even say hi to TN too.
  2. carie, on August 1, 2011 at 1:49 pm said:
    tn—in layman terms what do you mean by that?
  3. tnharry, on August 1, 2011 at 1:18 pm said:
    wow – this one gets very close to Rooker Feldman
  4. Gwen Caranchini, on August 1, 2011 at 1:07 pm said:
    good post, but you are an expert and know what you are talking about. Not everyone can do what you do and do well I might add. That is the problem with pro se. You don’t know what you are doing and get a bad decision it affects others cases and the banks will go after you and use that case. I saw that in three cases on the eastern side of mo–its a killer. Good job Dan
  5. carie, on August 1, 2011 at 1:01 pm said:
    AWESOME!
















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MOTION TO PROVE AUTHORITY TO REPRESENT is an effective tool. READ A MOTION FOR REMAND.

Motion for Remand: Tool for Counteracting the Notice of Removal

Posted on August 1, 2011 by Neil Garfield

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The form attached is from a pro se litigant whom I consider to be particularly savvy in the ways of Court and the issues at hand. I present it, not as the perfect model, but something that I think is well drafted and potentially successful as a vehicle for reversing the removal of a state court action to federal court. It goes without saying that every Judge wants to clear his docket. The removal notice takes the case off of the State Judge’s calendar, making him happy and places on the calendar of the assigned federal judge, which makes him/her unhappy.
Assumption is the enemy of good tactics. Most pro se litigants and lawyers alike see a notice of removal as the kiss of death in terms of the case ever being heard in state court. And most attorneys are a little more reluctant to take on a federal case, in which all motions and filings must be accompanied by a good memorandum of law, with a few exceptions. It is a fatal error in most instances if you Fail to attach a memorandum of law arguing (a) why what you are filing is the right thing to file and (b) arguing why the merits of the pending matter (not the whole case!) should be decided in your favor.
But the notice of removal while seemingly bulletproof is far from it. Reports from all over the country prove that point, where the Notice of removal is met with a Motion to Remand back to state court and the motion to remand is granted. Getting your case back to state court puts the pretenders at greater risk because the state court judges are more concerned with state laws than the federal judges, just by virtue of what they do every day.
The basis for removal is often specious (false). And like all the other pleadings and exhibits and proffering by lawyers it is often a fraud upon the court. Witness the case at hand where the lawyer who filed the notice stated in the notice that the other defendants were in agreement with removal, but they had already elected to file motions in the state court, thus waiving their right to removal.
In addition to being blatantly false (cause for a Rule 11 frivolous pleading), the filing also might be evidence of the fact that in truth, most pretenders’ lawyers don’t know who they represent. They say they do but they don’t. And that is because of the shell game being played out every day during the litigation process where one party pops up one place as the “creditor” and then another pops up when the first one is knocked down. It’s like a child’s game but the stakes are very high and the practice is contrary to the rules of ethics and discipline of every attorney.
The reason why the lawyers don’t know who they represent is because the banks themselves are confused and the command center, mostly out of Chicago, is poorly designed and works inefficiently. So a law firm gets a request from someone who is NOT the client or potential client in the case at bar, asking for them to defend the case, but the lawyer never actually hears from the actual client or anyone authorized to speak for the actual client. That is why I am a proponent of the Motion to Prove Authority to represent — which nails down the actual client, and prevents the lawyer from asserting representation of other pretenders who obviously have adverse interests. I have seen cases simply disappear when that motion is filed.
Lawyers who represent BOA and other such banks would do well to remember that these cases might come back  and haunt them for knowingly presenting false information and frivolous pleadings to the court. While it is true that only a handful of states have passed rules that require the lawyer to vouch for the proffers made in court and the actual evidence offered, it is already in the rules of ethics and conduct of every state that a lawyer may not present evidence or make any statement that he knows is false or that he would know if he had done the due diligence that is required of every lawyer before they go into court.
At this point it seems that lawyers for the pretender banks are ignoring the basic elements of their ethical duties and disciplinary rules and should be held tot ask administratively through the Bar Association grievance procedure as well as being held financially accountable by the Courts for having breached an element so basic to court procedure.
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | , , , ,, , , , , , , , , , , , , ,, , , , , 
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