Just because someone working for the bank tells you or even swears as to the actions occurring that doesn’t mean you have to accept that testimony.     As you’ll see below, the yahoo that swore as to his involvement in entering this home later has to recant as he is busted for lying.

Thanks to Neil Garfield for his post about this decision.

If you or someone you know is facing a foreclosure situation or a bank is wrongefully entering your home contact our office today.

- The Bank Slayer

NY JUDGE AWARDS $155,092.00 TO HOMEOWNER

By JEFFREY ARLEN SPINNER, J.S.C, New York jfm33137@aol.com

Wells Fargo v Tyson

Decided on March 5, 2010

Supreme Court, Suffolk County

Wells Fargo, Plaintiff

against

Steven E. Tyson, SUSAN L. TYSON, LEITH ANN TYSON, LINDSAY TYSON and KYRA TYSON, Defendants

2007-28042

Richard Femano, Esq.

Fein Such & Crane L.L.P.

Attorneys for Plaintiff

747 Chestnut Ridge Road, Suite 200

Chestnut Ridge, New York 10977

Steven E. Tyson

Defendant Pro Se

2064 Hendricks Avenue

Bellmore, New York 11710

and

3 Danville Court

Greenlawn, New York 11740

Jeffrey Arlen Spinner, J.

On September 7, 2007 Plaintiff commenced this action claiming foreclosure of a mortgage by filing its Notice of Pendency and Summons and Complaint with the Clerk of Suffolk County. The mortgage at issue was originally given in favor of New Century Mortgage Corporation, Plaintiff’s assignor. Said mortgage was given to secure a note and constitutes a first lien upon premises known as 3 Danville Court, Greenlawn, Town of Huntington, New York. On November 30, 2007, Plaintiff filed an application with this Court seeking the appointment of a referee pursuant to RPAPL § 1321 but withdrew that application on December 5, 2007. Subsequently and on September 18, 2009, Plaintiff filed a second application for the same relief which was granted by Order of this Court dated November 4, 2009.

On January 14, 2010, upon the written request of Defendant STEVEN TYSON, this Court convened a conference in order to address certain serious issues which had arisen with respect to the property under foreclosure. Defendant took the time to appear in person while Plaintiff dispatched a per diem attorney who had absolutely no knowledge of the matter inasmuch as she was not regular counsel, was not provided with any information and hence no meaningful progress could occur. The Court was thereupon compelled to continue the conference to February 24, 2010, at which time the Defendant again appeared in person, on this occasion, with counsel of record for the Plaintiff, appearing as instructed by the Court.

The issue that brings these parties before the Court at this time concerns the entry, without permission, into Defendant’s dwelling house, by agents dispatched expressly for that purpose by Plaintiff. Plaintiff vociferously [*2]asserts that it has the absolute and unfettered right, under the express terms of the mortgage, to enter the premises at any time, for purposes of inspection and protection of its security interest and that it is free to do so without having to obtain Defendant’s consent for the same. Defendant counters that Plaintiff has wrongfully and without justification entered the dwelling on at least two separate occasions, causing damage to the premises and resulting in the loss of various items of personalty.

The following facts are not in dispute. Defendant and his wife are the owners, in fee simple absolute, of the premises known as 3 Danville Court, Greenlawn, New York, which are subject to a first lien in favor of Plaintiff. Plaintiff has commenced an action to foreclose that lien, but there has been no devolution of title. Defendant’s personal financial situation is such that he can no longer maintain the high cost of utility service, resulting in the voluntary discontinuance of same. Defendant has previously winterized the plumbing and heating systems in the dwelling, has secured the building, maintains the exterior of the premises and retains virtually all of his personalty in the home including furniture, clothing and foodstuffs. Defendant has, previous to any entry on the premises herein, notified Plaintiff of the discontinuance of utility service and the winterization and securing of the dwelling. Defendant, although he is now residing elsewhere, has not abandoned the property, has not evinced any intent to abandon it and he visits the premises at least once weekly and sometimes with greater frequency. In addition, Defendant has arranged with a neighbor to keep a watchful eye on the property in his absence.

It is also undisputed that without any notice to Defendant, on or about November 13, 2009, Plaintiff dispatched an agent to the premises who thereupon changed the locks, thus barring Defendant from access to his property. When Defendant contacted Plaintiff relative to his wrongful ouster from the dwelling and demanded access, Plaintiff’s representative denied any knowledge of the entry and directed him to contact Fein Such & Crane, their counsel of record. Upon contacting them, Defendant was advised by someone named Matt that the entry into the home was standard procedure but a new key to the premises would be provided to him by Plaintiff, and Defendant expressly directed that they remain away from the property. In spite of Defendant’s requests Plaintiff caused the property to be entered yet again in late December or early January, at which time Defendant, having been telephoned by his neighbor, actually confronted these persons and urged them to immediately leave the premises. Defendant was able to discover that these persons obtained access by use of a key identical to the one that was previously provided by Plaintiff to Defendant . Defendant then secured the premises only to return later that day to find his garage open and the loss of various items of personal property, including an 8 kilowatt portable generator, a 14 foot aluminum sectional extension ladder, an aluminum step ladder, a convertible hand truck, an AquaBot pool cleaning device and other items, valued, according to documentation supplied by Defendant, at $ 4,892.00. Defendant thereafter contacted the Suffolk County Police Department and made a full report, which was docketed under central complaint no. 10-85647.

It is at this point that the accounts begin to diverge. Defendant offered sworn testimony as follows: he arrived at the premises on November 17, 2009 to discover that he had been “locked out,” so to speak; upon communicating with Plaintiff, he was redirected to their attorney who informed him that the property was “inspected and secured” due to its abandoned state; they dispatched a new key to him whereupon he discovered that his door lock cylinders had been drilled out; Plaintiff advised Defendant that he was in possession of the premises, that he had not abandoned the dwelling, that it was replete with his furniture and personal effects and he further instructed them to remain away from the property and to refrain from any entry into the dwelling; according to Defendant, Plaintiff’s representative apologized and stated that they would not enter the premises.

On February 24, 2010, Plaintiff produced a witness, one John Denza, who testified under oath, as follows: at the express direction of Plaintiff, his company (a private property inspection and preservation firm) caused the mortgaged premises to be inspected on November 3, 2009, allegedly found the front door to be wide open and the premises completely unsecured and so notified Plaintiff; Plaintiff faxed his company a work order on November 6, 2009 directing that the locks be changed and the dwelling be secured and winterized and further, that on November 13, 2009 his company caused the locks to be changed; he flatly denied that the locks had been drilled or otherwise forcibly removed, instead asserting that the front door to the premises was ajar and the existing lock cylinders were simply unscrewed and set aside. It was only after a rather probing examination by the Court that Mr. Denza conceded that he had no actual knowledge as to the matters about which he testified since he never visited the premises, relying instead upon another individual to whom he had delegated all responsibility. Placing things into simpler terms, the totality of his testimony consisted of nothing more than self-serving statements constituting [*3]inadmissible hearsay not subject to any exception, Latimer v. Burrows 163 NY 7, 57 NE 95 (1900), People v. Huertas 75 NY2d 487, 554 NYS2d 444 (1990). No testimony or evidence from a party with actual knowledge was proffered by Plaintiff.

The law is clear that it is both the province and the obligation of the trial court to assess and determine all matters of credibility, Matter of Liccione v. Miuchael A. 65 NY2d 826, 482 NE2d 917, 493 NYS2d 121 (1985), Morgan v. McCaffrey 14 AD3d 670, 789 NYS2d 274 (2nd Dept. 2005). It is for the trial court to apply and resolve issues of witness credibility. Here, Plaintiff has produced a witness who has absolutely no firsthand knowledge of the controversy, hence his testimony is devoid of all probative value and cannot be the subject of any serious consideration. On the other hand, upon assessment of Defendant’s demeanor and comportment, the Court is convinced that he is telling the truth and he is worthy of belief.

At the February 24, 2010 conference, Plaintiff’s counsel doggedly insisted that Plaintiff was wholly justified in taking the actions complained of by Defendant (entry upon the property), asserting that it had done so in accordance with the rights conferred upon it under the terms of the mortgage and therefore Plaintiff bore no liability whatsoever to Defendant. At no time was there any denial that Plaintiff had caused Defendant’s property to be entered on more than one occasion, counsel simply asserting that Plaintiff had the right to enter into and protect the property as it saw fit.

Though not specifically enumerated by counsel, the Court presumes that Plaintiff derives its claimed rights from Paragraph 7(b) of the mortgage herein, which states, in pertinent part, that “Lender, and others authorized by Lender may enter on and inspect the Property. They will do so in a reasonable manner and at reasonable times. If it has a reasonable purpose, Lender may inspect the inside of the home or other improvements on the Property. Before or at the time an inspection is made, Lender will give me notice stating a reasonable purpose for such interior inspection.” Though this contractual provision clearly requires some kind of notice to Defendant, there is no indication that any notice at all was provided to Defendant. Indeed Plaintiff does not even advance any claim that it has complied with this section but instead baldly asserts, through counsel and not through any person with actual knowledge, that it has what appears to be an unfettered right to enter the premises at any time.

Presumably, counsel for Plaintiff further relies upon the express provisions of Paragraph 9 of the mortgage which states, in pertinent part, that “If…I have abandoned the Property, then Lender may do and pay for whatever is reasonable and appropriate to protect Lender’s interest in the Property…Lender’s actions may include but are not limited to: (a) protecting and/or assessing the value of the Property; (b) securing and/or repairing the Property;…Lender can also enter the Property to make repairs, change locks…and take any other action to secure the Property.” This section presupposes that Defendant has abandoned the property. It logically follows then that abandonment would be a strict pre-requisite to Plaintiff’s right of entry upon and within the premises. Here, Defendant’s testimony plainly reveals that he has not abandoned the property in any manner whatsoever and therefore the required condition precedent to Plaintiff’s entry does not exist.

A fair reading of the contractual provisions set forth, supra makes it abundantly clear that any and all actions taken by Plaintiff must be reasonable and, where entry into improvements on the property s contemplated, then the same must be accomplished only upon notice to the other party. It is apparent that Plaintiff has breached its own contract by its failure to give notice and further, that its actions are not reasonable under the circumstances presented. This is especially true herein since the condition precedent to Plaintiff’s right of entry has not occurred.

Since the mortgage at issue is an instrument promulgated by the lender to the borrower and since the operative and binding terms thereof are not negotiable by the borrower, such an instrument is considered to be a contract of adhesion which is typically construed against the drafter thereof, Belt Painting Corp. v. TIG Insurance Company 100 NY2d 377 (2000). Under the circumstances presented to this Court, it is appropriate and fair that the terms of the instrument be construed in favor of Defendant.

In the matter before the Court, it is apparent that Plaintiff has perpetrated a trespass against the real property of Defendant, which is actionable and subjects Plaintiff to liability for damages. Distilled to its very essence, trespass is characterized by one’s intentional entry, with neither permission nor legal justification, upon the real property of another, Woodhull v. Town of Riverhead 46 AD3d 802, 849 NYS2d 79 (2nd Dept. 2007). The injury arising [*4]therefrom afflicts the owner’s right of exclusive possession of the property, Steinfeld v. Morris 258 AD 228, 16 NYS2d 155 (1st Dept. 1939), Kaplan v. Incorporated Village of Lynbrook 12 AD3d 410, 784 NYS2d 586 (2nd Dept. 2004). The elements of a claim for trespass are intent coupled with the entry upon the land that is in possession of another. In order for trespass to lie, general intent is legally insufficient. Instead, there must be a specific intent, either to enter the land or to engage in some act whereby it is substantially certain that such entry onto the land will result therefrom, Phillips v. Sun Oil Co. 307 NY 328, 121 NE2d 249 (1954). The intent need not be illegal or unlawful, MacDonald v. Parama Inc. 15 AD2d 797, 224 NYS2d 854 (2nd Dept. 1962) but even one who enters the land upon the erroneous belief that he has the right to enter thereon will be held liable in trespass, Burger v. Singh 28 AD3d 695, 816 NYS2d 478 (2nd Dept. 2006). Trespass will lie against a party if entry upon the land was perpetrated by a third party, such as an independent contractor or other party, at the direction of the party to be charged, Gracey v. Van Kamp 299 AD2d 837, 750 NYS2d 400 (4th Dept. 2002). It follows then, both logically and legally, that the injured party must have been in possession, whether actual or constructive, at the time that the alleged wrongful entry occurred, Cirillo v. Wyker 51 AD2d 758, 379 NYS2d 505 (2nd Dept. 1976). In the matter that is presently sub judice, it is clear that a trespass has occurred on at least two separate occasions. It is apparent to the Court that this trespass was perpetrated against the property of Defendant and was done at the special instance and request and upon the affirmative directive of Plaintiff. Since the Court finds that liability for trespass lies against Plaintiff and in favor of Defendant, the Court must now move forward to consider and to determine the damages, if any, that should properly be awarded to Defendant.

Actual damages may be recovered against the trespasser-tortfeasor though they are not a mandatory component of the claim, Amodeo v. Town of Marlborough 307 AD2d 507, 763 NYS2d 132 (3rd Dept. 2003). The rule applicable herein is that where the invasion is de minimis or the actual amount of damages is not capable of calculation nor is it readily quantifiable, then an award of nominal damages will be appropriate under the circumstances, Town of Guilderland v. Swanson 29 AD2d 717, 286 NYS2d 425 (3rd Dept. 1968), aff’d 24 NY2d 802, 249 NE2d 467, 301 NYS2d 622 (1969). Indeed, the damages that are recoverable by the injured party include those resulting from each and every consequence of the trespass, inclusive of both damage to property and injury to the person but only to the extent that such damages arose as a direct result of the wrongful intrusion by the trespasser-tortfeasor, Vandenburgh v. Truax 4 Denio 464, 1847 LEXIS 157 (Supreme Court Of Judicature Of New York, 1847).

Damages for injury to real property are typically calculated and awarded as the lesser amount of the decline in fair market value versus the cost of restoring the property to its state before the trespass, in other words, the injured party is entitled to recover the amount by which the property has been devalued, Hartshorn v. Chaddock 135 NY 116, 31 NE 997 (1892) Slavin v. State 152 NY 145, 46 NE 321 (1897). In this matter, there is no evidence that the value of the property has been diminished or otherwise adversely affected by the trespass, hence this method of calculation of damages is inapplicable.

In instances where the conduct complained of is willful, wanton or egregious, the Court is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary not only to effectuate punishment but also to deter the offending party from engaging in such conduct in the future. Such an award may also be made to address, as enunciated by the Court of Appeals in Home Insurance Co. v. American Home Products Corp. 75 NY2d 196, 550 NE2d 930, 551 NYS2d 481 (1989) “…gross misbehavior for the good of the public…on the ground of public policy”. Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable, I.H.P. Corp. v. 210 Central Park South Corp. 12 NY2d 329, 189 NE2d 812, 239 NYS2d 547 (1963).

Since an action to foreclose a mortgage is a suit in equity, Jamaica Savings Bank v. M.S. Investing Co. 274 NY 215, 8 NE2d 493 (1937), all of the rules of equity are fully applicable to the proceeding, including those regarding punitive or exemplary damages, I.H.P. Corp. v. 210 Central Park South Corp. , supra . Indeed this Court is persuaded that Judge Benjamin Cardozo was most assuredly correct in stating that “The whole body of principles, whether of law or of equity, bearing on the case, becomes the reservoir drawn upon by the court in enlightening its judgment” Susquehannah Steamship Co. Inc. v. A.O. Andersen & Co. Inc. 239 NY 289 at 294 (1925). In a suit in equity, the Court is empowered with jurisdiction to do that which ought to be done. While the Court notes that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York (see CPLR 103, Field Code of 1848 §§ 2, 3, 4, 69), the Supreme Court is nevertheless vested with equity jurisdiction and [*5]the distinct rules governing equity are still very much applicable, Carroll v. Bullock 207 NY 567, 101 NE 438 (1913). Therefore, in a matter where the conduct of the party to be charged is either willful, wanton or reckless, the Court may invoke the principles of equity so as to make an award of exemplary damages.

Here, the Court is constrained to find that the conduct of Plaintiff in this matter was both willful and wanton, as evidenced by not one but two unauthorized entries into Defendant’s dwelling, occurring in complete derogation of Defendant’s right of possession. This conduct becomes even more glaring when consideration is given to the fact that Defendant affirmatively notified Plaintiff that he had secured the property and that it was not abandoned and still contained his personal property. Even so, Plaintiff maintains that it has entered the property under a color of right, which turns out to be illusory under the circumstances. In spite of these declarations, Plaintiff willfully took it upon itself to enter the property on more than one occasion, doing so unreasonably and without notice, in direct contravention of the terms of its mortgage promulgated to Defendant by its assignor. This is even more distressing when it is considered that Plaintiff breaches its obligations to Defendant under the mortgage, running roughshod over Defendant’s rights with a specious claim that it is acting to protect its rights and the property. In short, the conduct of Plaintiff was nothing short of oppressive and would best be described as heavy handed and egregious, to say the very least. Certainly, the trespass was willful and calculated and was not accidental in any way and the Court finds that Plaintiff did not act in good faith. Under these circumstances, an award of both actual and exemplary damages is necessary and appropriate in order to properly compensate Defendant for the losses he has sustained by way of Plaintiff’s shockingly wrongful conduct as well as to serve as an appropriate deterrent to any future outrageous, improper and unlawful deeds.

The Court finds the appropriate measure of damages for the trespass to Defendant’s possessory interest in the property to be in the amount of $ 200.00. The Court further finds that Defendant is entitled to recover $ 4,892.00 representing the value of the personalty lost as a direct result of Plaintiff’s actions in trespass. Finally, the Court finds that Defendant is entitled to recover exemplary damages from Plaintiff in the amount of $ 150,000.00.

For all of the foregoing reasons, it is, therefore

ORDERED, ADJUDGED and DECREED that the Defendant STEVEN E. TYSON residing at 3 Danville Court, Greenlawn, New York 11740 recover judgment against the Plaintiff WELLS FARGO BANK N.A. with an office located at 3476 Stateview Boulevard, Fort Mill, South Carolina 29715 the sum of $ 200.00 for damages resulting from trespass, together with the sum of $ 4,892.00 for actual loss, together with the sum of $ 150,000.00 for exemplary damages, for a total recovery of $ 155,092.00 and that the Defendant have execution therefor. The Clerk of Suffolk County is directed to enter judgment accordingly.

This shall constitute the Decision, Judgment and Order of this Court.

Dated: March 5, 2010

Riverhead, New York

E N T E R:

______________________________________

JEFFREY ARLEN SPINNER, J.S.C

Bottom line: Nationwide the number of folks facing foreclosure grew by 6% year over year (February to February).  But the 6% growth rate is lower than last year’s growth rate.

But if your, someone you know or a client of yours is facing a foreclosure situation it doesn’t matter if the national average is up or down 1000%.    You need your situation resolved now.  Contact our office for help.

- The Bank Slayer

WASHINGTON - Associated Press : The foreclosure crisis isn’t over, but the pace of growth may finally be slowing down.

RealtyTrac Inc. said Thursday that the number of U.S. households facing foreclosure in February grew 6 percent from the year-ago level, the smallest annual increase in four years.

More than 308,000 households, or one in every 418 homes, received a foreclosure-related notice, the Irvine, Calif.-based foreclosure listings company reported. That was down more than 2 percent from January.

Still, fears remain about the hundreds of thousands of homeowners who are still being evaluated for help under loan modification programs. Many analysts say most of those borrowers will eventually lose their homes, sparking a new round of foreclosures later this year.

“It’s premature to declare victory just yet,” said Rick Sharga, a RealtyTrac senior vice president for RealtyTrac. He did, however, allow that, “If this is the beginning of a slowdown in growth rates, that would be a good thing.”

Banks repossessed nearly 79,000 homes last month, down 10 percent from January but still up 6 percent from February 2009.

The RealtyTrac report follows an encouraging report last month from the Mortgage Bankers Association. It said the percentage of borrowers who had missed just one payment on their home loans fell to 3.6 percent in the October to December quarter, down from 3.8 percent in the third quarter.

While that was a surprising piece of positive news, foreclosures were still at record high levels. The number of borrowers who have either missed a payment or are in foreclosure was at 15 percent.

A record 2.8 million households were threatened with foreclosure last year, RealtyTrac said, and the number is expected to rise to more than 3 million homes this year.

The foreclosure crisis forced the federal government and several states to come up with plans to prolong the process so delinquent borrowers can try to find help. But those efforts have barely dented the problem. Case in point: The Obama administration’s $75 billion foreclosure prevention program has helped only 116,300 homeowners in the past year.

Foreclosed homes are typically sold at steep discounts, lowering the value of surrounding properties. Cities lose property tax dollars from homes that sit empty and lower property values.

Economic woes, such as unemployment or reduced income, are expected to be the main catalysts for foreclosures this year. Initially, lax lending standards were the culprit, but homeowners with good credit who took out conventional, fixed-rate loans are the fastest growing group of foreclosures.

Among states, Nevada posted the nation’s highest foreclosure rate, though foreclosures there were down 7 percent from January and down more than 30 percent from a year earlier. It was followed by Arizona, Florida, California and Michigan. Rounding out the top 10 were Utah, Idaho, Illinois, Georgia and Maryland.

The metro area with the highest foreclosure rate in February was Las Vegas. Though one in every 90 homes there received a foreclosure filing, foreclosures were down 9 percent from a month earlier. Foreclosures in the No. 2. metropolitan area, the Cape Coral-Fort Myers area in Florida, were up 31 percent from a month earlier.

Also topping the list of foreclosure hot spots were the California metro areas of Modesto, Riverside-San Bernardino-Ontario and Stockton.

This is good and bad.

The good news is that hopefully most of the rip-off operations available through the internet will be out of business.  It has always been our belief that you should work only with local, Better Business Bureau-accredited companies.  Local is KEY.  You need professionals that understand your needs and can adjust to your schedule.  Only a local company (with real offices) and experienced personnel will be able to stay in the game and get the results you need.

Bad news is that there are legitimate loan modification companies that have the time, experience and knowledge to successfully hassle with your mortgage company everyday (while you’re at work) until a modification is approved.    These companies will now likely be kaput.

End result is this…HAMP related loan modifications are at times capable of being handled by non-legal personnel but anything beyond a HAMP modification (and even some of these) is a better fit for mortgage litigation.

- The Bank Slayer

The Federal Trade Commission proposed a new rule to prohibit third-party mortgage companies from charging upfront fees for foreclosure rescue and modification services.

The FTC brought 28 cases against companies that charge a fee, promising the borrower a modification from the lender. The cases allege these companies never provided the services promised and that they misrepresent their affiliation with the government and other housing assistance programs, including the Home Affordable Modification Program (HAMP).

“Homeowners facing foreclosure or struggling to make mortgage payments shouldn’t have to contend with fraudulent ‘companies’ that don’t provide what they promise,” said FTC chairman Jon Leibowitz ina press statement ^[1]. “The proposed rule would outlaw up-front fees so companies can’t take the money and run.”

The new FTC rule would also bar the companies from telling borrowers to end communication with their lenders. It would require that the companies notify a potential client of their for-profit status.

“Far too many homeowners have paid up-front fees to bad actors who promised loan modifications but never delivered,” US Treasury Department secretary Timothy Geithner said. “I commend the FTC for proposing a strong set of safeguards to protect consumers from these predatory practices.”

Several states already have similar laws in place, forbidding the upfront fees. Governor Arnold Schwarzenegger signed Senate Bill 94 in October 2009, which banned the fees.

In a story in the November issue ^[2] of HousingWire, a spokesman for the California attorney general’s office said that complaints of modification fraud increased with the same velocity as foreclosures. In 2007, consumers registered 27 complaints for the year, a number that grew to 163 in 2008. In September 2009 alone, the office heard 158 complaints, totaling nearly 2,000 for the year.

In the story, an FTC spokesman warned borrowers against the fraudulent practice.

“People should avoid any company or individual that requires a fee in advance, guarantees to stop a foreclosure or modify a loan, or advises the homeowner to stop paying the mortgage company,” the spokesman said.

As the first step in the rule-making process, the FTC sought comment on the practices of the for-profit mortgage relief companies in June 2009. A month later, the FTC launched Operation Loan Lies ^[3], a coordinated national law enforcement effort to hunt down mortgage modification scams.

The new proposed rule has a 45-day public comment period that ends March 29, 2010.

REALTORS:  Whether you are assisting a homeowner with a short sale or loan modification, it will be for naught if the homeowner is foreclosed upon.     Stopping the foreclosure is critical and one of the best ways to do it is to leverage the hidden gems that appear in a forensic audit of the mortgage and current foreclosure process.

Don’t lose another home to a foreclosure.  Contact our office today!

Thanks to 4closurefraud.org for this interesting find.

- The Bank Slayer

Mortgage Fraud – DOCX, LLC - FEDERAL HOME LOAN MORTGAGE ASSN.

Action Date: March 9, 2010
Location: West Palm Beach, FL

ON MARCH 9, 2010, researchers for Fraud Digest easily found at least 10 Assignments, for combined loan amounts well over $2 million, with the Assignment Effective Date listed as 09/09/9999. These were all prepared by Docx, LLC in Alpharetta, Georgia, a subsidiary of Lender Processing Servicesin Jacksonville, FL. These are the same “document preparers/officers of too many banks” that prepared and filed Assignments where the grantor or grantee was listed as “Bogus Assignee for Intervening ASMTS” and also the same people who listed the grantor or grantee as “A Bad Bene.” All of these documents are witnessed and notarized (by other Docx employees).

Fraud Digest researchers are now attempting to quantify the number of Assignments (in the hundreds or more likely thousands) where MERS is stated to be the original mortgagee. If the assignment is not effective until 09/09/9999, many homeowners will be able to stay in their homes a VERY long time. Each of these assignments effective in 9999 was to the Federal Home Loan Mortgage Assn.

—————————————-

Now I don’t know which is better, having a BOGUS ASSIGNEE, a BAD BENE or a somewhat official looking Assignment of Mortgage that isn’t effective until09/09/9999.

Funny how these types of things keep popping up in LEE County, home of Clerk of Court Charlie Green and his quote “there should be a way to foreclose quickly against deadbeats who are destroying neighborhoods by neglecting or abandoning their homes”

By Lynn Szymoniak, Esq.

The sad morale of this story is captured here: “BoA did make an offer to repair some of the damage caused during the seizure, but only after she retained a lawyer.”

If you are tired of dealing with the numskulls at BofA call our office today.

- The Bank Slayer

Bank Of America Seizes Wrong House, Holds Parrot Hostage

Bank of America finds itself the target of a new lawsuit filed by a woman in Pittsburgh who alleges that the bank not only improperly seized her home and damaged her other property, but also kept her parrot hostage even after they admitted making a mistake.

According to the lawsuit, after mistakenly believing that the property was in default, BoA instructed Snyder Property Services to “enter, seize, padlock, ‘winterize’ and take possession” of the plaintiff’s home. This included turning off the water, cutting power lines, filling her drains with antifreeze… and confiscating her parrot.

As the plaintiff had been paying her mortgage on time, she was shocked to arrive home one day to a house with new locks, damaged furniture and carpets, scattered belongings and a missing parrot.

At first, says the lawsuit, Bank of America acknowledged the seizure and told the plaintiff that they knew of the parrot’s whereabouts. But when she continued to call, she says BoA reps told her to stop calling, hung up on her and said they were “tired of hearing from her.”

After about a week of banging her head against the wall (metaphorically), BoA relented and confessed that they had “made a mistake.” They told her where the bird was being held and she made the 3-hour round trip drive to get the bird back.

The suit alleges that BoA was “knowingly deceptive and lacks a policy to check the validity of its foreclosures or stop wrongful ones from happening.” A Bank of America spokeswoman declined to comment.

BoA did make an offer to repair some of the damage caused during the seizure, but only after she retained a lawyer.

- The Bank Slayer

Paul Egan / The Detroit News – Man Threatens to Fly Plane into Chase building

Utica — A Monday detention hearing is set for a Utica man arrested Friday after he allegedly threatened to fly an airplane into a Chase Bank building in Houston.

“Chase Bank employees were frightened by this threat since several weeks ago, a plane had been flown into an Internal Revenue Service building in Austin, Texas,” FBI Special Agent Juan Herrera said in an affidavit that was attached to documents charging Sean Timothy Donnelly with making an interstate threat.

Donnelly, 40, a real estate appraiser also known as Sean Timothy O’Neill, refused for nearly two hours to come to the front door when federal agents visited his home Friday. He allegedly made the phone threat on Thursday, the affidavit said.  ”After nearly one dozen law enforcement officers, including FBI agents, detectives and officers of the Utica Police Department, were present at the residence, Donnelly exited,” the affidavit said.

Donnelly, who appeared in U.S. District Court in Detroit late Friday and was ordered held for a detention hearing Monday, was reportedly upset about a real estate appraisal Chase Bank had conducted and told the operator at the bank’s Houston call center he was “ready to fly an airplane into your building.”

The 11-minute telephone conversation was recorded, the affidavit said.

Donnelly, a registered sex offender, has an extensive criminal record including two felony arson convictions, officials said. Making an interstate threat is a five-year felony.

If your mortgage is serviced by Wilshire this could be great news for you.  Wilshire has been notorious for not letting homeowners (borrowers) off the hook for the deficiencies created during a short sale or deed in lieu.

If you are facing a short sale situation with Wilshire, call our office today for guidance on the best way to make sure your short sale is closed without leaving you on the hook

-          The Bank Slayer

Until Freddie decides what if anything is going to happen to a loan in default it might take some real firepower to break your deal loose.  Call us today if your short sale with Freddie or Fannie is going nowhere or if your homeowner is facing an imminent foreclosure situation.

– The Bank Slayer

A recent article in The American Banker (focused on an unpleasant fact for Freddie Mac: when it pushes loan sellers to buy back loans, some of them tell Uncle Freddie to “take your loan and shove it, we ain’t buyin’ back no more.”

The GSE said some big-bank customers aren’t honoring its loan repurchase requests “in a timely manner.” A total of $4 billion in loan repurchase requests were unfulfilled as of Dec. 31, up by about a third from a year earlier. Nearly 30% of those requests had been outstanding for more than three months. And though some servicers had financial difficulties, three of the GSE’s “larger, higher credit quality” servicers had more than 30% of their repurchase obligations outstanding that long.

“It’s more like the movie ‘Network,’ where the star says, ‘I’m mad as hell, and I’m not going to take it anymore,’ ” said Larry Platt, a partner in the financial services group at K&L Gates LLP in Washington. “The dollars are too much.”

Fannie Mae recently launched a “Quality Control Initiative” to support its contention that its repurchase requests aren’t the result of nitpicking nor a desire to recoup the massive losses that it (and Freddie Mac) have been taking since they started operating as part of the US Government’s bottomless pit of public money that is being used to support residential mortgage markets without having to appear as part of the wildly widening US government’s deficit, but are, instead, a result of lenders being dumber than a stump. It’s apparent that such public relations ploys aren’t impressing the troops.

Lenders have complained that the GSEs are being too picky, pushing back loans for minor oversights.

“I think why you see resistance is there is this overcorrection going on, in terms of everything being pushed back,” said Paul Anastos, president of Mortgage Master Inc., a Walpole, Mass., lender. (He said he sells loans to Freddie, which has never asked him to buy any back.)

“If they focused in on really what was the problem, they’d gain more traction. I think they’d have more cooperation.”

Observers note that neither side can afford to push the other side to the brink. Fannie and Freddie are the only game in town when it comes to loan purchases, while the GSEs need big loan originators like Wells Fargo, Bank of America, and JP Morgan Chase, so it can’t afford to financially damage them or honk them off to the point that they get really creative and find a way to bypass Fannie and Freddie or simply say “screw it” and focus on something more profitable and less likely to involve the US Government changing the deal on them (again) after the fact. Sooner or later, they’ll have to reach a compromise.

In the meantime, the spat will provide plenty of fodder for chit-chat among those of us who saw this buy-back Armageddon coming years ago.

NEW YORK, March 4 (Reuters) – Moody’s Investors Service on Thursday said it may downgrade portions of 125 residential mortgage bonds based on unusual “cash management arrangements” of GMAC Mortgage LLC, which services loans in the securities.

The rating company said GMAC commingled cash flows from multiple bonds in a single custodial account, Moody’s said in a statement. This allowed GMAC to use cash from loans in one bond for principal and interest payments on another, it said.

By allowing the commingling, it “increases the likelihood that some RMBS deals may not be able to recover the amounts ‘borrowed’ by the servicer to fund advances or another RMBS deal if a servicer bankruptcy were to occur,” Moody’s said.

This could give rise to competing claims in a bankruptcy proceeding, the rater said.

Downgrades based on mortgage servicing, rather than credit, may add to concerns of bond investors who have been long accustomed to harsh rating cuts as delinquencies and foreclosures increase losses.

GMAC Mortgage is a unit of Residential Capital LLC. Residential Capital is owned by GMAC Inc.

Bottom Line:  Tough to buy a new house if you can’t sell your current home.

-       The Bank Slayer

Tax Credit Losing Momentum

By Kevin Chiu, Housing Predictor

First time home buyers are being credited $12.5 billion in government tax credits, according to the Treasury Department. But the federal tax credit with the expansion of the program to move-up home buyers is losing momentum, a Housing Predictor analysis shows.

A boom to first time home buyers and real estate agents amid the highest volume of foreclosures on record, the tax credit was expanded by the federal government in November to include move-up home buyers. But only a small percentage of move-up buyers have been able to take advantage of the $8,000 credit. The majority have had trouble selling their current homes.

A survey of 50 housing markets monitored by Housing Predictor indicates that the heavy volume of purchases triggered by the tax credit has slowed. The credit boosted home sales last summer and during the last part of 2009 only to fizzle, lacking the ability to sustain a real recovery in the majority of housing markets surveyed. Only eight markets of the 50 surveyed demonstrated on-going strengthening with more home sales. The tax credit expires April 30th.

High unemployment in the majority of the country is still hampering any real sort of recovery in housing. Despite low interest rates, which may rise later in 2010, home sales dropped in January and February. Home prices showed signs of stabilizing from government programs in some areas of the country, but the pent up back-log of foreclosures listed for sale and a shadow inventory of properties are pressuring home values in most markets.

The Obama administration has pumped more than $1.4-trillion into the housing market from buying mortgages with tax credits and programs to refinance homes at lower rates, but still hasn’t made a major move to remedy ailing markets. “You’ve got a really big problem that requires big guns and the tax credit is just not big enough,” said Robertson Williams of the Tax Policy Center in Washington, D.C.

Mortgage holders who owe more on their home than it is worth in today’s market are another problem. Under water home owners are helping to eliminate any real recovery in the housing market as more choose to walk away from their homes rather than keep paying the mortgage. Most homeowners have to sell their home before they can move and without equity they are at a loss to do so.

The National Association of Realtors lobbied for and got the tax credit extension from Congress, who asked them not to come back to request an extension for the program again.

A bill to force lenders to modify mortgages for homeowners at risk of foreclosure is bogged down in Congress as an average of 8,600 foreclosures a day are recorded across the nation.