As Neil Garfield says…The Pretender Lenders have now tried to use all the major parties and some of the minor parties in foreclosures and when tested have failed to prove standing.

Standing is a jurisdictional matter and it basically boils down to

“You don’t belong here, you have no rights to enforce, you have no interest in this litigation, so get out of here and don’t come back.”

They tried MERS, Servicers, Foreclosure Specialty processors, Trustees, originating “lenders” and they come up empty. why because they are all intermediaries and as Judge Holloway put it, the note is not payable to them, the mortgage does not secure them, the obligation is not due to them and therefore they can’t proceed. In non-judicial states they get around this requirement unless the homeowner brings suit.

Bottom Line:  These banks lie and fabricate documents to put them in a position to win.  Don’t let them.  If you are sick and tired of fighting the bank and their seemingly endless supply of tricks don’t give up.  We beat the bank every month and you can too.

- The Bank Slayer

Hon. Arthur M. Schack does it again!

JP Morgan Chase Bank, N.A. v George

2010 NY Slip Op 50786(U)
Decided on May 4, 2010

Supreme Court, Kings County
Schack, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 4, 2010
Supreme Court, Kings County

JP Morgan Chase Bank, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, Plaintiff,

v.

Gertrude George, IVY MAY JOHNSON, GMAC MORTGAGE CORPORATION, DANIEL S. PERLMAN, et. al., Defendants.

10865/06

Plaintiff- JP Morgan Chase Bank
Steven J Baum, PC
Amherst NY

Defendant- Gertrude George
Edward Roberts, Esq.
Brooklyn NY

Defendant- Ivy Mae Johnson
Precious L. Williams, Esq.
Brooklyn NY

Judge Arthur M. Schack, J.

_______________________________________________

Accordingly, it is
ORDERED, that the order to show cause of defendant IVY MAE JOHNSON, to vacate the January 16, 2008 judgment of foreclosure and sale for the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings), pursuant to CPLR Rule 5015 (a) (4), because plaintiff, JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4, lacked standing to commence the instant action and thus, the Court never had jurisdiction, is granted; and it is further

ORDERED, the instant complaint of plaintiff JP MORGAN CHASE BANK, N.A., AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-AR4 for the foreclosure on the premises located at 47 Rockaway Parkway, Brooklyn, New York (Block 4600, Lot 55, County of Kings) is dismissed with prejudice.

This constitutes the Decision and Order of the Court.

___________________________

Hon. Arthur M. SchackJ. S. C..

If you have a repayment plan, modification or foreclosure postponement offer get it in writing.  Demanding you agree to an over the phone, verbal agreement is likely worthless and in my opinion proves that they aren’t willing to send it to you in writing.

Does this story sound familiar? A homeowner struggling with his mortgage payment wants to work something out to avoid foreclosure.  On TV and in his local paper he sees that lenders have pledged to help distressed homeowners.   He calls the loan servicer (whom he thinks is the actual owner of his mortgage), asking for the homeowner assistance department.  What follows is a series of transfers, hold music and vague answers.

Currently, the most likely answer is… “We’re here to help.  Please submit 10-15 documents and we’ll review you for a modification.”   Now the game is afoot but the homeowner has no idea he is starting the fax machine black hole game.  After sending documents two or three times, the servicer tells him that his file is now in review and he can skip the current payment.  This is where the homeowner could use a handy-dandy tape recorder.

30, 60, 90 days and few dozen phone calls later all without any payments and now the loan is seriously delinquent.  A trip to the mailbox reveals the Notice of Acceleration.  The homeowner is in a panic, so he calls the law firm at the bottom of the Notice. The law firm eventually puts the homeowner in touch with someone from the servicer that says, “Don’t worry. We’re gonna work this out.”

Now the homeowner is thinking, “Yeh you said that on the 12 previous phone calls and yet you are trying to foreclosure.”  He frantically calls the law firm back “Don’t worry,” they say, “We are just following the wishes of your servicer and if they are almost done with your paperwork and everything looks great.   You’ll be fine.”

The next letter is the Notice of Trustee Sale.  The house is going to be sold in 21 days on the first Tuesday of the next month.

The homeowner asks, “Why did they lie to me?”

Make no mistake, the lender is the enemy.  They are in business to make money.  In most every case, the lender wants the house back, plain and simple.

Why you ask?  Because very likely they either:

a)       Never put out a dime on your house.  (ex.  you borrowed the money from another bank and now the current bank reaps the rewards.)

b)       They bought your loan on the cheap.  (ex. they bought your loan for $0.25 on the $1.00 they want to foreclose and flip it for $0.80 and make a fast buck.)

If you are in default, seek help immediately.

-       The Bank Slayer

When: The first Tuesday of every month.

Where: Usually at County Courthouse.

When: Auction typically starts at either 10am or 1pm

Primary Instruments: Promissory Note & Deed of Trust

Type of Foreclosure: Both Non-Judicial & Judicial

Timeline: Typically 60 days.  As fast as 21 days.

Right of Redemption: No, unless tax only foreclosure

Deficiency Judgments: Yes

In Texas, lenders may foreclose on a Note in default through the powers granted in the Deed of Trust (different from your Warranty Deed).  This can be either a judicial or non-judicial foreclosure process.

What’s the difference?

Judicial Foreclosure
The judicial process of foreclosure, involves the lender filing a lawsuit against you and trying to obtain a court order to foreclose.  This is used mainly for Home Equity loans and Cash out refinances.  Generally, after the Judge grants the lender permission to foreclosure, your property will be auctioned off to the highest bidder the same way as a non-judicial process.   These types of foreclosure can be stopped dead in their tracks if attacked early.

Non-Judicial Foreclosure
The non-judicial process of foreclosure is the default process for purchase loans as well as refinances that did not involve cash out; usually called rate and term refinances (you just wanted a better deal not cash out).    In the deed of trust, you pre-authorized the sale of your property in the event of a default.  The power given to the lender to sell the property will be executed by a Trustee.  This is typically the lawyer’s office sending letters informing you that you are in default the time and place they will sell the property.  These are tough to stop without the right kind of help or you paying them the monies they claim you owe.

What happens?

Prior to proceeding with a foreclosure, Texas laws state that the lender must mail the borrower a letter of demand, informing the buyer he has twenty (20) days to pay the delinquent payments or foreclosure proceedings will begin.

At some point after the borrowers twenty (20) days have expired, but at least twenty one (21) days before the foreclosure sale, a foreclosure notice must be: 1) filed with the county clerk; 2) mailed to the borrower at their last known address; and 3) posted on the county courthouse door.

The foreclosure sale will take place on the first Tuesday of any month, even if said Tuesday falls on a legal holiday.  The sale is by auction to the highest bidder for cash.  Anyone may bid, including the lender.  After the sale, the Trustee records a Deed conveying your property to the buyer even if it is your lender.  If you are still in the house, they will remove you.

The lender may then seek a judgment against you for any remaining balance owed on the Note.  The fact that they “took back” the house doesn’t necessarily relieve you of the money they claim you owe.  If they sell the house for less than you owe, they may track you down and make your life miserable by trying to extract it from you.