Lots of Homeowner “Friends of Court” Swinging Into Yvanova Case in California Supreme Court

There have been several amicus curiae briefs filed in the last few days in the Yvanova case, currently pending before the California Supreme Court on Glaski-type issues of a borrower’s ability to challenge the foreclosing party’s authority, whether it came from a bad assignment, or from a hallucination from the Dalai Lama.

California Attorney General FINAL-Amicus Brief-Yvanova pdf pdf (Attachment) Copy

National Consumer Law Center (NCLC) and National Association of Consumer Advocates (NACA)NCLC amicus brief Yvanova

Consumer Attorneys of California (CAOC)CAOC brief Consumer Attorneys Amicus Yvanova

 

And let’s not forget this doozie filed by the Banker’s Association.  2015-04-20_Yvanova_v _New_Century_Amicus_Cal_Bankers_Assoc (2)

Maybe I’m not being entirely fair but it seems to consist mainly of a major distraction tactic of showing false concern for homeowners.  You see, guys, these are just homeowner “delay” tactics (these pesky laws as set forth in the statutes and the contracts governing the loan transaction), and “studies” (no doubt commissioned by the Banker’s Aid Relief Charitable Society) show that giving distressed homeowners more time in their homes does not improve their chance of successful reinstatement.”  Huh?  What does that have to do with the issue of whether a foreclosing party is civilly liable for exercising authority he does not have to take real property that does not belong to him?

Two Million Dollar Jury Award in Federal Court in Illinois for Modification Misconduct

OAK BROOK, Ill., April 22, 2015 /SATPR.COM/ — Alena Hammer secured a jury verdict against Residential Credit Solutions, Inc. (RCS), a national mortgage loan servicer headquartered in Fort Worth, Texas, for its breach of contract, violations of the Real Estate Settlement Procedures Act (RESPA), and violations of the unfairness and deception provisions of the Illinois Consumer Fraud and Deceptive Business Practices Act. All of Hammer’s claims dealt with RCS’s misconduct in handling and servicing the mortgage loan on Hammer’s home in DuPage County, Illinois, where Hammer has resided for the last 27 years.

Hammer’s mortgage loan was serviced by AmTrust Bank (AmTrust) until AmTrust failed and was taken over by the FDIC in December 2009. In June 2010, Hammer entered into a loan modification agreement with the FDIC as receiver for AmTrust. Hammer’s home mortgage loan was then transferred to RCS in August 2010. In September 2010, RCS began rejecting Hammer’s monthly payments and refused to acknowledge the existence of the loan modification. RCS then proceeded to prosecute two separate foreclosure actions against Hammer, despite the fact that Hammer, still to this day, has tendered all of her monthly payments as required under the loan modification agreement. The first foreclosure case was dismissed in favor of Hammer and against RCS in March 2011. However, RCScontinued to reject Hammer’s payments and continued to deny the existence of the loan modification agreement; RCS filed a second foreclosure action against Hammer in September 2011 and prosecuted that case through December 2013. Hammer had complained of improper fees and costs assessed to her loan account, the attorney’s fees and costs she incurred to defend two improper foreclosure proceedings, damages for mental anguish and emotional distress, and other damages that were incurred during the nearly three and a half year ordeal.

The six (6) day federal trial concluded on April 20, 2015 in Chicago, Illinois at the Everett McKinley Dirksen United States Court House. The jury, after deliberating for approximately two hours, determined that RCS breached the loan modification agreement, violated RESPA for failing to adequately respond to Hammer’s Qualified Written Request, and committed both unfair and deceptive acts in violation of the Illinois Consumer Fraud Act. Alena Hammer was awarded $500,000 in compensatory damages and $1,500,000 in punitive damages. Nicholas Heath Wooten, Esq., Ross Michael Zambon, Esq., and Mara Ann Baltabols, Esq. led the litigation team on behalf of Hammer. Each attorney is a student of the nationally renowned and esteemed North Carolina attorney, O. Max Gardner III, and each is a graduate of his highly acclaimed Consumer Bankruptcy and Litigation Boot Camps.

The outcome of this trial should come as good news to all consumers who have struggled with aggressive mortgage servicing tactics throughout the ongoing financial crisis.  The litigation team was meticulous and methodical in its litigation approach, and was able to obtain a punitive damages award for Hammer and against RCS – an award that is meant to punish and deter future misconduct – under the Illinois Consumer Fraud Act.

Leading Attorneys in Consumer Law:

Ahmad Sulaiman, Esq. is the managing partner of Sulaiman Law Group, Ltd. and is also a highly regarded graduate of Gardner’s Consumer Litigation and Bankruptcy Boot Camps. Ahmad is recognized as a thought leader in foreclosure defense, consumer and commercial bankruptcy, and consumer law by his peers. He was designated as a Super Lawyer Rising Star from 2010 through 2015.

Nicholas Heath Wooten, Esq. is the managing partner of Nick Wooten, LLC and is nationally known for his work in mortgage servicing and foreclosure defense litigation. Nick’s courtroom work and writings led to his recognition as a national thought leader on issues of securitization with respect to foreclosure and bankruptcy.

Ross Michael Zambon is the managing partner of Zambon Law, Ltd. and is highly regarded by his peers and adversaries for his litigation work on behalf of consumers. He has been designated as a Super Lawyer Rising Star from 2010 through 2015.

Mara Ann Baltabols, Esq. of Sulaiman Law Group, Ltd. is well known for her work in foreclosure defenseand consumer law.  She has been designated as a Super Lawyer Rising Star by her peers.

About Sulaiman Law Group, Ltd.

Founded in 2005, Sulaiman Law Group Ltd. is a consumer litigation firm in Oak Brook, Illinois that focuses on foreclosure defense, bankruptcy, FDCPA, TCPA, FCRA, and other consumer fraud cases. (http://www.sulaimanlaw.com)

Foreclosure and Suicide

Suicides Doubled During Housing Crisis says article in the Atlantic:

In 2010, just as the U.S. was beginning to climb out of the global financial crisis, suicide was the second-leading cause of death for adults aged 25 to 34 in the U.S., and the fourth-leading cause of death for adults aged 35 to 54. With the Great Recession behind us, public health officials are now trying to measure the toll of the housing crisis in terms of lost life and psychological distress.

A new study released this month in the American Journal of Public Health offers one answer to this complex question. The report finds that suicides spurred by severe housing stress—evictions and foreclosures—doubled between 2005 and 2010.

The study is the work of researchers from the Division of Violence Prevention at the U.S. Centers for Disease Control and Prevention. Led by Katherine A. Fowler, five researchers analyzed suicide findings from 16 states that participate in the National Violent Death Reporting System. The NVDRS is an epidemiological surveillance system that abstracts data from a variety of sources, including death certificates, law-enforcement agencies, coroners, medical examiners, forensic laboratories, and other vital-statistics providers.

“This study was the first to our knowledge to systematically examine suicides linked with eviction and foreclosure,” the report reads.

. . .

The increase in suicides for homeowners (foreclosure-related) was much larger than the increase in suicides for renters (eviction-related). Foreclosure-related suicides more than tripled between 2005 and 2010. “This further suggests a relationship between these suicides and the housing crisis, which resulted in a national 389 percent increase in foreclosures between 2005 and 2010,” the report reads.

Disturbingly, the study suggests that the mechanism of foreclosure proceedings might actually lead to increased risk for suicide:

Foreclosure may be exceptionally stressful because of its protracted nature and multiple negative events that constitute the process, particularly given the evidence that situational depression may respond in a dose-response fashion to negative life events. In addition, depression is more strongly related to stressful life events for which individuals perceive personal responsibility and lack of control over outcomes. All of these factors are mechanisms that make the foreclosure process a potent psychological stressor.

Reports of suicides related to evictions or foreclosures began to surface in national media early into the housing crisis, of course; but details explaining the frequency or circumstances of housing-related suicides remain elusive, even today. No research explains directly the link between home eviction and foreclosure proceedings and suicide.

Recently, however, researchers have begun to describe this relationship. According to the CDC analysis, mortgage delinquency has been shown to be linked to serious psychological adversity, including major depression (two times greater odds) and “elevated depressive symptoms related to acute stress” (eight times greater odds).

Department of Justice Investigates Deutsche Bank for False Documents Presented to Court in Bankruptcy Foreclosure Case

This was reported by Reuters, in an article entitled US investigates Deutsche Bank in foreclosure case.  Excerpt below but read the whole case at the link (prior):

NEW YORK, Jan 28 (Reuters) – A branch of the U.S. Department of Justice is investigating whether Deutsche Bank (DBKGn.DE) filed false documents and attempted to mislead a bankruptcyjudge in a foreclosure action.

Although the investigation involves the case of only one homeowner in Connecticut, a court document filed on Jan. 26 by the United States Trustee’s Office said it wants to elicit information about Deutsche Bank’s practices in general in foreclosure cases.

The inquiry involves Deutsche Bank National Trust Co, the Deutsche Bank unit that acts as trustee for thousands of trusts that invested in mortgage-backed securities. The U.S. Trustees’ Office is a division of the Department of Justice responsible for overseeing administration of bankruptcy cases.

In recent months, the office has stepped up efforts around the United States to block banks and law firms from using false or fabricated documents in home foreclosure actions. The effort follows disclosures in October 2010 of large-scale “robo-signing”, the mass signing of foreclosure affidavits containing “facts” that had never been checked, and wide production of false mortgage assignments.

The Jan. 26 court motion stated that “The United States Trustee has reviewed the documents filed by Deutsche in this case and has concerns about the integrity of those documents and the process utilized by Deutsche in” filing to foreclose.”

(emphasis added).  Join the club U.S. Trustee.  “Concerns about the integrity of those documents” understates the problem but we’ll take it.

Wells Fargo Takes a Hit for Forged Foreclosure Documents

Federal Judge Slams Wells Fargo for Forged Mortgage Docs

http://nypost.com/2015/01/31/ny-federal-judge-slams-wells-fargo-for-forged-mortgage-docs/

Two Judges Who Get It About the Banks NY Times

http://www.nytimes.com/2015/02/01/business/01gret.html

(1) “Defendant Wells Fargo’s deceptive and intentional conduct displayed a complete and total disregard for the rights of David and Crystal Holm,” wrote R. Brent Elliott, a circuit judge in Missouri’s 43rd Judicial District, in a Jan. 26 opinion. “Wells Fargo took its money and moved on, with complete disregard to the human damage left in its wake.”

In addition to $2.9 million in punitive damages awarded to the Holms, Judge Elliot gave them clear title to their home and almost $96,000 to be paid by Freddie Mac, representing the difference between the amount it paid for the property in 2008 and its current value.

(2)  The Holms were also awarded $200,000 for emotional distress. Mr. Holm, who is 40, had heart problems that were worsened by anxiety over the case, the judge concluded. Finally, $33,000 of the couple’s legal fees must be paid by Freddie Mac and Wells.

The judge ordered these sanctions because lawyers for Wells and Freddie Mac “have demonstrated a pattern of contempt for the Missouri Supreme Court rules as well as this court’s rules and orders.”

In the other case, presided over by Judge Robert D. Drain at a Bankruptcy Court in White Plains, Wells lost a five-year-old foreclosure dispute involving a $170,000 property owned by Cynthia Carrsow-Franklin.

Her lawyers contended that the bank, after initiating foreclosure proceedings, had simply created a missing document that it needed in order to foreclose. That document, known as an indorsement, transferred the underlying note to Wells Fargo.

On Thursday, Judge Drain sided with the borrower. He wrote that testimony from a Wells Fargo manager in charge of the bank’s default documents and part of its assignment team “constitutes substantial evidence that Wells Fargo’s administrative group responsible for the documentary aspects of enforcing defaulted loan documents created new mortgage assignments and forged indorsements when it was determined by outside counsel that they were required to enforce loans.”

A Comparison Study of Prosecution of Bank Fraud vs. Prosecution of Unarmed “Suspects” in America

We have posted extensively on the lack of criminal accountability for the masterminds of the financial crisis, the crisis “profiteers” and engineers.   Save Lee Farkas, former CEO of Taylor, Bean & Whitaker, almost no financial executive has been indicted.  Instead, our “mortgage task forces” have turned to the “street level pushers,” prosecuting borrowers for so-called liar’s loan, despite scads of evidence that the Countrywides and EMCs of the era were filling in income FOR the borrower after phone interviews,  bank-owned brokers were inflating income figures to originate any loan that could help fill the securitization machine, and badly underwritten loans were knowingly put into mortgage-backed-securities, often with the issuing bank taking the opposite side of the trade on the side, via credit default swaps, or shorting CDOs.  In the new age of No-Prosecution, where Justice whines that prosecution is too hard (see Lanny Breur on 60 Minutes), although the reporters at 60 Minutes were able to interview several people and uncover significant evidence in a period of weeks.  Even when banking giants like Bank of America or Chase are “fined” in widely touted Justice Department cases involving “civil penalties” (anybody remember HSBC getting to pay a fine for money laundering drug cartel money, and the executives kept their handsomely paid jobs?), the banks don’t have to admit any liability, they can pay in all sorts of creative ways that amount to more government (aka taxpayer) subsidies and bailouts, and scant resources reach the homeowners actually affected by the harms.

But this old story becomes rage-inducing when starkly compared with the treatment of minorities and socially powerless individuals by police and the justice system.  This trend was highlighted in Matt Taibbi’s last book, “The Divide.”

Bill Black has also drawn comparisons to the treatment of minor crimes and criminals versus the well-heeled white collar crimes of the elite.  This is particularly compelling given the ongoing protests relating to police killings of unarmed black males.  On these lines, here is an excerpt of an article by Bill Black, criminologist, ex-S&L regulator, and law professor,  that I found on Naked Capitalism but that originally appeared on New Economics Perspective, full article at those links:

By Bill Black, the author of The Best Way to Rob a Bank is to Own One and an associate professor of economics and law at the University of Missouri-Kansas City. Originally published at New Economic Perspectives

New York City exemplifies two perverse criminal justice policies that drive many criminologists to distraction. It is the home of the most destructive epidemics of elite financial frauds in history. Those fraud epidemics hyper-inflated the housing bubble and drove the financial crisis and the Great Recession. The best estimate is that the U.S. GDP loss will be $21 trillion and that 10 million Americans lost their jobs. Both numbers are far larger in Europe. The elite “C Suite” leaders of these fraud epidemics were made wealthy by those frauds through bonuses that measured in the billions of dollars annually.

The most extraordinary facts about the catastrophic fraud epidemics, however, is New York City’s reaction to the fraud epidemics. Not a single Wall Street bankster who led the fraud epidemics has been prosecuted or had their fraud proceeds “clawed back.” Not a single Wall Street bankster who led the fraud epidemics is treated as a pariah by his peers or New York City elites. New York City’s elected leaders have made occasional criticisms of the banksters, but Mayor Bloomberg was famous for his sycophancy for the Wall Street banksters that made him wealthy. In 2011, Mayor Bloomberg attacked the “Occupy Wall Street” movement for daring to protest the banksters.

“I don’t appreciate the bashing of all the hard working people who live and work here and pay the taxes that support our city,” said Bloomberg, during a press conference in a Bronx library.

“The city depends on Wall Street.”

“Jamie Dimon is one of the great bankers,” said Bloomberg. “He’s brought more business to this city than any banker in (the) modern day. To go and picket him, I don’t know what that achieves. Jamie Dimon is an honorable person, working very hard, paying his taxes.”

Bloomberg also questioned why the protestors were picking on wealthy bankers and other corporate titans.

It is, of course, depraved to claim that because banksters are made wealthy through fraud and pays a small portion of that wealth in taxes they should not be held accountable for those frauds because they are important to local finances. The claim becomes all the more risible when we take into account that under Dimon’s leadership JPMorgan became infamous for engaging in and facilitating billions of dollars in tax evasion that cost many governments, including NYC, enormous amounts of tax revenues. As a final indignity, most of the purported amounts that JPMorgan paid in settlements with DOJ are actually paid by the U.S. Treasury because DOJ allowed JPMorgan to treat large amounts of those payments as tax deductible. DOJ’s senior leadership used this as one of their cynical means of making the settlements paid by the banks appear far larger than they actually were.

. . .

The crisis is marked by exceptional recidivism by these banks and banksters, the rapid progression of fraud in terms of severity and its spread through the elite banks, and the creation of a massively corrupt culture in banking and their political allies in which even the largest and most destructive frauds are ignored and the perpetrators are shielded from even the mildest forms of accountability. To sum it up, NYC exemplifies the moral depravity, endemic criminality, and resultant breakdown of the criminal justice system that “broken windows” theory predicts. “Broken windows” theory, however, is not applied by its conservative proponents to elite white-collar crime. When the SEC (purportedly) adopted the “broken windows”) theory, the same conservatives that give the theory rapturous support when it leads to the mass arrests of poor minorities for the most trivial of offenses become apoplectic in their rage against holding elites accountable for lesser offenses.

This class-based rush to shield elite white-collar criminals from even the mildest forms of administrative accountability (the SEC uses “broken windows” as a PR slogan, not a reality) while simultaneously adopting an ultra-aggressive policy of arresting mostly poorer Blacks and Latinos for the most minor of offenses (e.g., selling small numbers of cigarettes from broken packs). The proponents of using “broken windows” to arrest large numbers of minorities for minor property offenses almost never demonstrate any awareness of the obvious obscenity and disaster of allowing banksters to grow wealthy by defrauding with impunity. Eric Garner ends up dead because the police arrest him for selling goods without paying sales tax (amounting to several hundred dollars in lost government revenue over the course of a year). The fraud epidemics cost that drove the financial crisis and the Great Recession cost our Nation $21 trillion – and no senior banker who led the frauds in even arrested. (As I have explained, the Department of Justice and the FBI do target a tiny slice of the mortgage fraud “mice” – particularly those of disfavored minorities like Russian-Americans – for prosecution.)

Sausage Links

 

Thanksgiving

Lots of interesting links before Thanksgiving:

The Ferguson Lie — the Grand Jury was Kabuki Theatre at its worst:

That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion.  To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury.  Wachtler’s “ham sandwich” has grown trite in this discussion.

The Ferguson Lie is an appeal to our sense of fairness and transparency.  We were played.  McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie.  To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence.  The grand jury transcript will be disclosed to provide complete transparency.  Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.

The grand jury did the dirty work that America needed done.  The grand jury has spoken.

This is the lie.

The description of what happened with the grand jury, how it heard all the evidence, how it will be transparent, is intended to appease our innate sense of fairness. Americans love things that appear fair, even if we don’t quite understand what actual fairness means. This sounds as if it was done as well, as fairly, as it could possibly be done.  But it’s a lie.

“All the evidence” is a phrase that applies to a trial.  A trial is a procedure that happens in an open courtroom, where adversaries zealously present their case and challenge the other side’s case.  It is transparent because we can watch it unfold, develop, happen before our eyes. We hear the questions and answers, the objections and rulings. We hear the request to admit evidence and the voir dire and challenge to its admission.  We hear the opening arguments and summations.

McCulloch put on a play in Ferguson.  His press conference announcing the foregone conclusion was remarkably in many ways, not the least of which was how he sold the argument for “no true bill” rather than the position he, as prosecutor, was duty-bound to champion.  The man charged with prosecuting killers argued the case for not indicting Wilson.

McCulloch didn’t have to go to the grand jury at all. He could have prosecuted Wilson by fiat had he wanted to do so.  He did not.  He was not going to be the person who charged Wilson with any variation of homicide.  But in deciding to take the case to the grand jury, the lie was born.

Links to the Evidence Heard By the Ferguson Grand Jury

When you review the evidence in the link above, remember, this evidence was allowed to go unchallenged by other evidence.  The important evidence is the evidence that was NOT introduced because this was not an adversarial proceeding.

Student Loan Debt Explodes

Executive Order on Immigration: The  33-page legal memorandum by the Justice Department’s Office of Legal Counsel (OLC) concludef that the president’s policy is “a permissible exercise of [the Department of Homeland Security’s] discretion to enforce the immigration laws.”