Monthly Archives: February 2022

February 26, 2022 · 12:43 PM

Vindication Comes In Small Packages

(BREAKING NEWS) — The author of this post is also the author of the Forensic Examination of the Osceola County, Florida public records. The Examination was conducted in July of 2014 by an 8-member team, with the information compiled and delivered to the Osceola County Clerk of the Circuit Court, Hon. Armando Ramirez (now retired) by the author of this post on December 30, 2014 by DK Consultants LLC of Texas. The examination was supervised by a bar-licensed attorney, Allen D. West, Esq. (Redondo Beach, California) and paid for out of Osceola County funds. The results are made a part of this post. This is a report, not an indictment; however, the author has been getting calls from attorneys and homeowners all over the U.S. who have downloaded this report and discovered similarities between the information contained in this report and their own legal scenarios. The author of this post serves as a consultant to homeowners and their attorneys in foreclosure and title matters.

NOTE: The report does not constitute legal advice and the exhibits that were attached to this report are voluminous; thus, any request by the readers of this post for viewing of the exhibits should be sent to cloudedtitles@gmail.com. Because some of the exhibits are NOT in PDF format, there may be a charge assessed for procurement of certain exhibits.

osceola-county-forensic-examinationDownload

The reason for the article on vindication is due to recent events occurring within a court case in the State of Kansas in the U.S. District Court, Wichita Division, where the Osceola County Forensic Examination was cited, under protest, with a motion to strike made by attorneys for the Bank of New York Mellon, which was denied by the Court. This means the Osceola County Forensic Examination sticks as evidence in the case. Needless to say, the lawyers for BONY Mellon were not happy. The Amended Complaint is shown below:

first-amended-complaint-doc-40Download

The interesting thing about court cases is that homeowners get discovery. The author of this post sees certain things he would have suggested been done differently. The author is expecting a call from chief counsel for the Plaintiffs. This attorney (at one time) was the U.S. Attorney for the District of Kansas, so he clearly understands the national gravity of the gravamen of this case.

This is not the author’s only audit of county land records. See below:

williamson-county-real-property-records-audit_january-29-2013Download

Ever since the 49 states attorneys general inked an agreement with the mortgage loan servicers, who were found to be the overseers of the suspect document manufacturing that most homeowners and their attorneys deem suspect, not soon after the ink was dry the servicers started up these fraudulent practices again. The only thing servicers understand is the threat of jail time. They have so much in their war chests they can fight multiple lawsuits in multiple venues. This worked in a case this author put together for an attorney in Florida, where the Lee County Circuit Court judge was directed (through a prayer in the pleadings) to order the Clerk of that Circuit Court to produce certified copies of the assignment of mortgage and power of attorney and submit it to the State’s Attorney for criminal referral and investigation. Soon after the counterclaim was filed, the homeowner’s attorney moved for depositions of the Defendants (the actual author, signer and notary of the assignment). This prompted a move by the servicer’s attorney to move for a settlement, which included a withdrawal of the counterclaim with prejudice. What scared the servicer and its attorney is that they faced implications as accessories to the fraudulent documents complained about. The actual complaint was only 11 pages, plus 6 pages of exhibits. Do you think a judge would actually be in favor of reading such a short complaint? Easily explained. Easy to get through. No bitching. Just stated facts supported by two publicly-recorded documents and citations of the law supporting the action and requests for criminal referral. THAT is what scared the other side into submission.

By virtue of the fact (Paragraph 67 of the Amended Complaint shown in this post) that the Osceola County Forensic Examination was cited and allowed to remain in the complaint (which didn’t go far enough (IMHO) in going after the actual perpetrators themselves) clearly demonstrates vindication for all the crap the author and his team took in bring the Forensic Examination to light. The Kansas Court chose to recognize the report’s value, even though the bank’s attorneys referred to it (similarly to what Florida attorney Matt Weidner referred to it as on an Orlando TV station interview) as, “not worth the paper it was printed on.”

Again, the similarities contained in the report and the assertions made of the suspect fraud contained within the records themselves was enough to convince a federal judge to allow the report to remain on the record. Again, the 758-page report is a “report”, not an indictment. It was a legitimate report, considered fully legitimate by the Clerk of the Circuit Court of Osceola County, Florida, to be published on his website during his tenure in office. That report and the attorney opinion letter accompanying that report is still on the Clerk’s website, even though the Clerk changed hands when Hon. Armando Ramirez (84) retired. The new Clerk, Kelvin Soto, kept the documents in place, including the warning about filing false documents that pops up on the website (osceolaclerk.com) when you access it, which the author of this post helped to draft. Whether the filing of fraudulent documents in that county’s records still continues would be the subject of another forensic examination.

This is one of the reasons that this post’s author and attorney Allen D. West, Esq. taught a class in Las Vegas on The C & E on Steroids! which contains a book and an 8-DVD educational set with accompanying notes and templates on how the author and attorney West constructed the actual declaratory relief complaint. There are only 18 copies left of this kit (hint, hint). This author will not reprint any more of them. Those who are serious about pursuing this option will entertain its legal value.

Every aggrieved homeowner wants to see the signers of these fraudulent documents “hung from the gallows”; however, this will not happen unless you actually make the signers and creators of these documents themselves actual targets. They will “sing for their supper” and rat out their supervisors if put in the hot seat. It’s a small price to pay to see justice done, isn’t it? If you want to see a potential criminal RICO action spawn out of something so trivial, then entertaining an option like this might be well worth your time, effort and expense.

Most people don’t care about a single homeowner’s foreclosure action; however, this case in chief is not that. The homeowners paid off their mortgage! It’s WHO they paid is what’s at issue. They may have paid the wrong party! They can’t even get a legitimate satisfaction of mortgage! A title company examiner claimed their recorded release was suspect! How can they have marketable title? No reasonable person would buy their home, knowing that the wrong party might have been paid and that another party could come back in the future and attempt foreclosure on that same property. Slander of title is an actual damage. A criminal referral within such a case is more than just a slap on the wrist to a mortgage loan servicer. It’s damning and could open a Pandora’s Box the likes of which the servicing industry has yet to see but is all to necessary to vindicate everyone whose mortgage loans were securitized.

The foreclosure mess created by the banks is still plaguing the courts. The political corruption within the court systems in America continues to be exposed with the challenge by homeowners of each of their foreclosure cases, even bringing forth corrupt justices who continually side with the banks despite the overwhelming evidence of suspect documents being offered. The number of lawsuits, according to L. Randall Wray, Professor of Economics at the University of Missouri-Kansas City (in his past article, “Memo to Banks: You are Toast”), has exposed the fact that “the banks are getting sued from here to Pluto by homeowners, soldiers and sailors, Fannie and Freddie, PIMCO, the NYFed, and just about anybody with access to a lawyer. And, increasingly, the banks are losing.”

Even though this article was published in 2011, the suits continue and banks don’t want to lose more cases. They would rather settle than create bad case law for themselves. Can you blame them for not wanting to go to jail in addition to pay out fines and restitution. The day of real judgment is coming.

Vindication, no matter how small, is still sweet.

Dave Krieger is also a national talk show host on The Power Hour, which airs Monday-Friday from 11:00 a.m. to 1:00 p.m. (Central Time) on radio stations across America, as well as rebroadcasted worldwide on shortwave (7.490 mHz) and streaming live on The Power Hour’s website. Programs are archived daily on the website.

5 Comments

Filed under I'm not posting any more stuff on here!

Tagged as , , , , , , , , , , , , ,

February 15, 2022 · 11:29 AM

The FDCPA, Debt Collection and Standing

BREAKING NEWS) — The author of this post is a paralegal and consultant to attorneys regarding real property, foreclosure and consumer issues. The concepts contained within this post are for educational and research purposes only and should not be construed as legal advice. In the event one should find this material useful, it is highly recommended that one consult with an attorney who is not only well versed in these matters, but with an attorney who has a winning track record on debt collection issues, like the cases discussed herein.

The last debt collection case we discussed was won by the consumers; however, this case took just the opposite turn because of failure to prove a “concrete injury in fact” under Spokeo and other case law.

In the case of Benjamin Ojogwu v. Rodenberg Law Firm, this matter involved a garnishment, which was disputed by the consumer, who retained counsel to defend it, despite being served individually instead of through counsel. This matter also involved a disagreement amongst the judges of the very same District Court in Minnesota. This is referred to by the appellate court as an “intradistrict conflict.” The consumer won the initial round in this event, only to be overturned after the law firm appealed the lower court’s decision. You can read the case below:

ojogwu-v-rodenberg-law-firm-8th-app-cir-no-20-2879-feb-14-2022Download

What actual harm came to Ojogwu (the consumer)? The 8th Circuit U.S. Court of Appeals overturned the lower court’s ruling, citing the fact that the consumer lacked Article III standing because he failed to allege and the record didn’t show he suffered concrete injury in fact; thus, the appellate court reversed the decision and sent the complaint back to the lower court for dismissal.

The takeaway from this case, as compared to the previous one cited on this blog, is that counsel for the plaintiff knew or should have known whether or not all of the tenets of Spokeo v. Robins did in fact exist before spending time and money wasting the courts’ time and resources litigating the matter. The law firm was representing Portfolio Recovery Associates, a third party debt collection agency, wherein a judgment was rendered in the matter. The plaintiff argued that the direct mailing violation under 15 U.S.C. § 1692(a)(2) was an “intangible injury” (“actual damages in the form of fear of answering the telephone, nervousness, restlessness, irritability, amongst other negative emotions.”) None of the allegations was deemed cognizable by the appellate court in its ruling.

This would lead the author of this post to believe that your mental state regarding dunning debt collection phone calls is not enough to establish standing. Spending money retaining counsel doesn’t constitute a “tangible injury” because of the expense of the suit itself. No qualified medical diagnosis was rendered and alleged and because the plaintiff failed to prove any medical harm, there was no concrete injury in fact.

Let this also be a warning to consumers that unless you want your private mental state aired in public like dirty laundry, because the other side gets to cross examine your shrink and smear you as a nut job in front of the court, you might think about actual “concrete” harm before proceeding with an FDCPA suit.

Leave a comment

Filed under I'm not posting any more stuff on here!

Tagged as , , ,

February 5, 2022 · 3:15 AM

The FDCPA, Debt Collection and Bona Fide Errors

(BREAKING NEWS) — The author of this post is a paralegal and consultant to attorneys regarding real property, foreclosure and consumer issues. The concepts contained within this post are for educational and research purposes only and should not be construed as legal advice. In the event one should find this material useful, it is highly recommended that one consult with an attorney who is not only well versed in these matters, but with an attorney who has a winning track record on debt collection issues, like the cases discussed herein.

Every so often, a debt collection case comes across my desk that contains multiple plaintiffs and thus warrants attention, especially because the federal appellate circuit reversed and remanded the cases back to the district courts from whence they came because the panel agreed that the federal district court erred in its 16-page ruling on particular facets of the cases in chief.

This particular case centers around what is termed “bona fide error” caused by the debt collector and/or its attorney(s). See the case below:

ewing-v-med-1-solutions-llc-7th-app-cir-no-21-1299-feb-2-2022Download

In this particular case, both Plaintiffs decisions were rendered by judges within the same division of the same district … the Southern District of Indiana, Indianapolis Division (including the Chief Judge). The cases were merged because of their similarities in arguments. Both cases were argued before the 7th Appellate Circuit Court of Appeals on December 14, 2021 and the ruling was issued on February 2, 2022. The backgrounds in each case are pretty self-explanatory.

In Ewing’s case, it took the debt collector two years to acknowledge that the alleged debtor disputed the debt collection claim. When Ewing looked at her credit report and saw the alleged debt was misrepresented, she decided that the misrepresentation of the debt under 15 U.S.C. § 1692e(8) was violated by the debt collector and filed suit. In Ewing’s case, as typical, the federal district judge ruled for the debt collector, who claimed that the error was unintentional, thus invoking the bona fide error as its affirmative defense.

In Webster’s case, she discovered an error on her credit report she did not believed she owed. Through counsel, a dispute notice was faxed to the debt collector. However, the dispute notice was faxed to a number the attorney thought was a viable fax number, which turned out not to be the case because the debt collector, on its own volition, decided to remove the fax number from its website and stopped checking its inbox for new disputes. Webster sued because the debt collector misrepresented the fact her account was in dispute, which in turn harmed her credit score. The debt collector of course, claimed it was excused from 15 U.S.C. 1692k(c) because of a bone fide error as its affirmative defense.

Both cases involved negative reporting by each debt collector on the consumer’s credit bureau reports, which was part of the issue discussed in both cases because each had a “published injury” (misrepresentation of the actual facts of the matter).

Significantly, both debt collectors raised a “standing issue” argument. Both claimed there was not sufficient enough of a “concrete injury in fact” (as outlined within the U.S Supreme Court) and alleged there was no case or controversy for the court to rule on.

The appellate court discussed the issue of what constitutes “a concrete injury”, bringing to bear several U.S. Supreme Court issues, including Spokeo, Inc. v. Robins, which this author brought forward to some degree in his FDCPA book (see the website for details by clicking this link). While the nation’s highest court generally rules within very narrow margins, the discussions within this case are quite lengthy in explaining the various “harms” and whether they constitute an injury in fact, a requirement for any federally-based debt collection action, whether tangible or intangible.

The cases then turned on the key issue here of “bona fide defense”, citing multiple cases, including the infamous Jerman v. Carlisle case (cited within). As the cases drew to their conclusions, the appellate court determined that the errors in both instances could have been avoided if reasonable procedures had been in place and thus disclosed and identified by the parties as reasonable. Such was not the case in either instance according to what this paralegal read (see Pages 15 and 16 of the ruling for the double whammy on both debt collectors).

And this is why we have appellate courts (because the district courts have a propensity to misinterpret the law as it is written, in this case, the Fair Debt Collection Practices Act. What most folks don’t realize when initiating these suits, are the following takeaways:

  1. A person filing an FDCPA suit has to have a legitimate “injury-in-fact”, whether tangible or intangible, that can easily be interpreted by the court;
  2. The injury-in-fact must be “concrete, particularized and actual or imminent” in order to stick;
  3. When examining case law, especially regarding the FDCPA, understand that these suits are normally brought in U.S. District Court in the district in which the Plaintiff resides because cases in controversy (many times) cross state lines;
  4. That an attorney bringing these claims needs to fully understand the principles discussed within the cited cases in this instance, which is why this author decided to bring this case forward for further discussion;
  5. There was no evidence that any state-based claims were brought forward in either instance, because the Plaintiffs’ attorneys knew that the debt collectors were out of state; thus, both claims were federal matters; and
  6. As noted in cases like Jerman, this author constantly sees the application of the bona fide error defense used affirmatively by debt collectors whenever possible because of the narrow ruling by the U.S. Supreme Court “walks a fine line” in the district courts, where district and circuit judges (like those judges in foreclosure cases) in most instances, rule on behalf of the defendant debt collector (bank, alleged lender) a majority of the time, which requires an appeal.

Despite the fact appeals can be costly, they are more effective in setting good case law, which is why this author chose to post THIS case to enhance one’s “learning curve” when it comes to understanding and recognizing when one has a case versus when one doesn’t.

As a footnote, one should be prepared to litigate this case to its final conclusion; thus, cases like this, which can turn on a dime, are not for the faint of heart and those without the budget to do so.

Listen to Dave Krieger on The Power Hour, Monday-Friday from 11:00 a.m – 1:00 p.m. Central Time.

Leave a comment

Filed under BREAKING NEWS, Other Relevant Issues

Tagged as , , , , , , , , , , , , , , ,