Tag Archives: Clouded Titles

Nothing has changed much in Washington State, post-Bain!

Op-Ed —

August 16, 2012 is a day that will go down in Washington State’s history when it comes to dealing with the issues created by the licensed lenders in that State who rely on MERS to cover up “dead spots” in the chain of title to properties.  I’m attaching the Supreme Court’s en banc ruling to refresh your memory and to fill in any gaps that might be missing in your thought process.

BAIN V METROPOLITAN MORTGAGE GROUP, INC. ET AL

Only a handful of states in the union agreed with the Washington Supreme Court’s decision insofar that MERS was NOT a real “beneficiary” because it didn’t loan any money and therefore, had no interest in the borrower’s promissory note.  In fact, during the oral arguments presented before the Supreme Court, counsel for Mortgage Electronic Registration Systems, Inc. (not “MERS”, which means MERSCORP Holdings, Inc.; I’ll explain in a moment) could NOT identify WHO owned Kristin Bain’s mortgage loan! That didn’t bode well before the justices, who were stunned at the lack of knowledge and almost sheer arrogance of MERSCORP’s counsel.

You see, what the Washington State Supreme Court justices were never presented with, and thus did not have in evidence to be able to make a determination of, is that the Rules enacted by the parent of Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc. (then MERSCORP, Inc.), specifically note that under Rule 1 § 1, when the term “MERS” is used, it means the PARENT, NOT THE CHILD!  Mortgage Electronic Registration Systems, Inc. is THE CHILD. The lack of knowledge by the attorneys for the homeowners (for Bain and Selkowitz) and the deliberate omission of MERS’s own “rules” by its representative counsel should be cause for alarm in the way cases are being litigated all across the country!

THE PARENT AND THE CHILD ARE NOT THE SAME!

In fact, they are two distinctly separate Delaware corporations. This was a contrived scheme of mass proportions, created in favor of the banks, which caused tens of millions of fraudulent and misrepresentative documents to be recorded into the land records of all 3,041 counties, townships and boroughs in the United States, literally clouding titles to over 80-million properties!

Thus, when Mortgage Electronic Registration Systems, Inc. shows up in any legal proceeding, it’s the “empty shell” (a bankruptcy-remote entity with no assets or liabilities; no income or expenses; and no employees) that shows up in court … NOT THE PARENT!  MERSCORP is footing the legal costs in every proceeding (because it is a roughly $2.7-billion a year business model) that operates and argues on the flawed idea that the agent (nominee) and the beneficiary can be one in the same party.

The Tennessee Supreme Court completely gutted the MERS business model in the Ditto decision. MERS v DITTO_TN Supreme Court rules against MERS!  To NOT understand all of the basic tenets of real property and mortgage law could be fatal to you in your foreclosure case!

This is why I am hosting the Foreclosure Defense Workshop in Orlando on September 30-October 1, 2017.  (see below)

Part of the “good fight” in dealing in foreclosure actions is knowing the truth and how to find it (or go after a determination to get at it).  This is a lot of what we are teaching in the workshop, even if you’re going pro se!

You have little time to make reservations, because airfare is going up the closer you get to the date and the number of seats to the event has dramatically shrunk.  If you are even thinking of remotely preparing yourself to “fight the good fight”, you need to be at this event!  Since Hurricane Irma hit Florida and knocked out a lot of the internet connections, many Florida consumers won’t know about this event until this weekend and likely, there will be an onslaught of registrations at the last minute.

FDW ORLANDO REGISTRATION FORM

Meanwhile, back in Washington State … 

It appears that the regulatory agencies that govern the behavior of the banks aren’t falling all over themselves to stop the continual process of recording documents in the land records that makes use of MERS as a “beneficiary”, post-Bain.  Here is one such Consent Order, issued in 2017, that exemplifies my point (sent to me by one of the readers of this blog):

Planet Home Lending

The Consent Order appears to have noted that a violation of the Washington Consumer Protection Act [RCW 31.04.027(2) and (13)] occurred when Planet Home Lending, a lender licensed under Washington law to conduct business in the State, caused several Assignments of Deeds of Trust to be filed in counties all across Washington State, post-Bain, characterizing MERS “as the beneficiary when MERS did not hold the corresponding promissory note.”

While I was not provided with any specific Assignment to review, I would guess (and my guesses are usually pretty right on) that the Assignment was created by employees of the servicer of the loan. Recognizing this scenario is important for two key reasons:

  1. If a consumer is economically affected by the recording of one of these subject, suspect Assignments, the consumer would have to assert a specific violation of the foregoing state statutes; and
  2. If the Assignment of Deed of Trust used MERS to characterize the Assignor as a “beneficiary”, post-Bain, for the purposes of transferring any rights in the note to a REMIC, or even more importantly, to the servicer, who then commences a foreclosure action against the Property, then there may also be a violation of 15 U.S.C. §§ 1641(f) and (g), the Federal Consumer Protection Act.

Through the use of the federal citation, the case then becomes a federal issue, so one would have to get a competent attorney to sort through which would be more effective to prove (as a Plaintiff) against Planet Home Lending, the violation of the Washington Consumer Protection Act (which has a supporting Consent Order to apply to the case as evidence) or the Federal version of the same.

The problem is however, that the Consent Order implies that Planet Home Lending didn’t admit to guilt, even though the State found violations of the foregoing Act (under Agreement and Order Paragraph C). For all intents and purposes, the Order basically said, “Don’t do it again!” and by agreement, any further violations of the Order would be dealt with in the future (to what extent, we do not know).

Now, I can surmise that all of the litigious folk out there affected by the issuance of this Consent Order have realized that there is nothing stopping a consumer from bringing a private right of action against Planet Home Lending (or any other lender or servicer violating the Washington CPA). However, I caution those considering such to use due diligence in determining “damage”, whether actual, compensatory, exemplary or punitive.  Without some sort of financial loss, it may be more difficult to press forward with a CPA violation claim.

That being said, it appears that suit may be brought under the foregoing state statutes in lieu of any decision like Yvanova v New Century Mortgage Corp. et al (California) and Miller v. BAC Home Loans Servicing, LP, 726 F. 3d 717 – Court of Appeals, 5th Circuit 2013 – Google (Texas) that gives consumers the right to challenge the creation of (and subsequent recording of) a suspect document affecting chain of title in the land records of any county in Washington State.  This may also apply in other Consumer Protection Act-related statutes across the country, but it is likely that a consumer would have to conduct some pretty specific discovery (against the mortgage loan servicers’ employees and notaries) to see who ordered the creation of the document and who caused it to be manufactured, for what purpose and determine accountability.

It should also be noted that civil conspiracy is defined in virtually every state statute.  While this term does not in of itself, constitute a cause of action in the literal sense, the act of one or more actors getting together and conspiring to do a thing to scheme that adversely affects the economic or financial well-being of another would certainly be an issue to be considered.

In Florida, for example, Florida Criminal Code § 817.535 makes it a third-degree felony to record a document containing false and misrepresentative information with the intent to deprive another of their property.  While consumers cannot commence criminal proceedings directly, they can file a criminal complaint with the local sheriff’s department (the county land records are the sheriff’s jurisdiction) and pursue a criminal case that way, especially if discovery shows that a civil conspiracy to create the document indeed occurred. You should understand that (based on our past dealings with a certain sheriff’s department) detectives at the county level are either lazy, in defiance of or lack the knowledge to properly and fully investigate such matters, as evidenced by the Osceola County Sheriff’s Department, who could find no wrongdoing in the OSCEOLA COUNTY FORENSIC EXAMINATION.

The foregoing subject matter is only PART OF what we’re going to cover in the upcoming Foreclosure Defense Workshop.  Thus, the tools and weapons that pro se litigants and litigants being represented by counsel are being refined to be more effective and the means by which documents are challenged has also been refined (AND PROVEN) to work!  There are three specific things I’m going to be sharing at the workshop in this regard, in addition to the newly-developed tactics by Rich Kalinoski, the attorney lecturing to those attending this workshop.

Again, this is the ONLY workshop we’re doing in 2017.  We have not decided whether we’re going to do another workshop again. Rich is very busy implementing his new developments and for this reason, may stifle any efforts to conduct a workshop in the future.  Know this … legal tools will be available to all of those who attend!

In the meantime, keep researching and “fighting the good fight”.

Dave Krieger is the author of several books, including Clouded Titles, available on his website.  He consults attorneys in foreclosure matters and drafts pleadings and conducts research for attorneys and litigants. Mr. Krieger is Managing Member of DK Consultants LLC in San Antonio, Texas. 

 

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JOIN DAVE KRIEGER ON CITY SPOTLIGHT … FRIDAY NIGHT AT 6:00 P.M. EDT!

(BREAKING NEWS) — 

Clouded Titles author Dave Krieger hosts his weekly radio show, featuring guest real estate agents Sal Guiliano and Linda Kelly (from Elevate Real Estate Brokers) talking about the “ins and outs” of buying and selling real estate in today’s hot Florida seller’s market.

Dave also has the latest updates from the nation’s courts on foreclosures, new case law and interesting takes on the financial markets, along with R. J. Malloy, retired attorney (and Dave’s “legal voice of reason”), WKDW-FM Station Manager (and former law clerk to a federal district court judge).  You won’t find the “truth” anywhere else but here!   Click the WKDW logo to listen live!

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FOR THOSE WHO MISSED THE FREE WEBINAR … LISTEN FREE NOW!

BREAKING NEWS — (for those who missed or had trouble getting on last night’s FREE webinar call) … from Dave Krieger:
We had a smashing webinar last night with Lou Brown and Al West and myself. I highly recommend that you listen to this webinar if you have any interest in defending against and defeating the Banks. We talked about “End Game” strategies. This should give you some insight into some newly developed solutions that are tried and true. We would love to see you at the end game strategies workshop in Biloxi, Mississippi on June 13 and 14th. Either way, listen to the webinar and let me know what you think.  You can email me directly at cloudedtitles@gmail.com!
To register call 1-800-578-8580. Seating is limited so be sure to reserve your seats today!

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SECOND FDCPA WEBINAR FEATURES LAWSUIT AGAINST OCWEN, TONIGHT!

Remember the five “W’s”?

WHO: Clouded Titles author Dave Krieger, along with special guest retired attorney and former federal law clerk R. J. Malloy!

WHAT: We’re going through drafting content in the framing of an FDCPA lawsuit, and Ocwen is the target!

WHEN:  Thursday, June 22, 2017, 8:00 p.m. (EDT)

WHERE: CloudedTitles.com (go to the webinar link and sign up)

WHY: Because Ocwen appears to have lied to everyone about its servicing practices. Twenty states and the District of Columbia have banned Ocwen from taking on new loan servicing accounts until they can prove they’ve cleaned up their shoddy bookkeeping practices.

 

HOW TO SIGN UP: Go to the Clouded Titles website and click on the webinar link and go to the shopping cart and check out.  You will be sent a code in your email inbox that links you directly to the webinar, which will be recorded and archived for later use.

Don’t miss it!

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SECOND FDCPA WEBINAR FEATURES ACTION AGAINST OCWEN!

BREAKING NEWS, OP-ED — UPDATE (JUNE 19, 2017)

The uniqueness of “kicking someone when they’re down” doesn’t even come to mind here, even in light of the dilemma I created for myself when I delivered a copy of the two-volume, 778-page OSCEOLA COUNTY FORENSIC EXAMINATION to the Clerk of the Circuit Court, Armando Ramirez on December 30, 2014.

This is one of the reasons why bad press is still “press”.  Maybe Ocwen Loan Servicing LLC is delighting in all of this unwanted attention.   As of today, it’s stock is still trading.  I wish I’d have known in advance of the issues confronting the mortgage loan servicer would come to a head on April 20, 2017, as I would have seriously shorted Ocwen’s stock and made thousands of dollars doing it.  Darn!

However, given the issues surrounding Ocwen’s reliance on one of its affiliates, Altisource (headquartered conveniently in Luxembourg) and Ocwen’s REALServicing platform, you can bet that there’s a good chance that any time Ocwen Loan Servicing LLC sends you a Monthly Mortgage Statement, it’s riddled with accounting errors.

Significantly, these errors can result in demands for payment which are erroneous and subject to civil liability under the FDCPA.  If you are actually paying Ocwen money for these errors, based on these statements, later discovering you overpaid or your payments were misapplied to someone else’s account to make up for Ocwen’s accounting shortfalls, this could warrant a case for disgorgement.

I find it incredibly interesting that Ocwen Loan Servicing’s “Sweet 16” (who I call the Florida notaries who sat around a table in West Palm Beach, Florida and took turns “dummying up” documents that would be recorded in real property records all over the United States, further creating issues of clouds on titles to millions of pieces of real property all over America.

Turning to a recent post on this blog, I note that Ocwen’s “Contract Managers” and “Contract Coordinators” have that same ability to “dummy up” affidavits that claim Ocwen has the authority to do “this, that and the other”; however, without a Limited Power of Attorney to back up the significant claims that Ocwen employees make on these affidavits, one would be virtually in the dark on what actual authority Ocwen has to do anything.

RESEARCH NOTES:

(1) You can locate all of Ocwen’s Limited Powers of Attorney (“LPOA”)by going to the Palm Beach County, Florida Clerk of Court’s website and searching for “Power of Attorney (POA)” with Ocwen Loan Servicing LLC as the GRANTEE.

(2) You need to reach every single detail of these powers of attorney when you locate the appropriate one, as there are over 800 of them recorded in the Clerk’s database.  Use the GRANTOR name to isolate your search (e.g., Bank of New York Mellon, U.S. Bank, HSBC Bank USA, N.A., etc.) and hone in on the LPOA that fits your date and time scenario, which specifically states WHICH REMIC is being represented in the LPOA.  You may be surprised to find that Ocwen is limited as to what it can do (e.g., only manufacturing documents and not actually commencing a foreclosure proceeding).  You may also find the LPOA has expired.  It doesn’t mean they’re not still in the public record … it’s just that they’re expired.

(3) You need to specifically research the REMIC on the SECINFO.com website.

Get a complete copy of the 424(b)(5) Prospectus and SEC Form 15d and save them to file.  In the search bar for the particular REMIC, run the name OCWEN in the search engine and see if anything pops up.  Run the term “Sale and Servicing Agreement” and see what pops up.  If you don’t find specific notations to any event relating to Ocwen, it means two things:

(a.) you will need to locate an LPOA that contains such an Agreement; and

(b.) if you can’t find the Agreement listed in the public record, you’ll have to obtain it in discovery under Request for Production of Documents.

This my friends, is legal research and case strategy, NOT legal advice.  If you’re going to jump down rabbit holes, you’d better be prepared to dig deep!

If Ocwen is NOT allowed to enforce the terms of a Mortgage or Deed of Trust because you can show lack of authority vested to it … and you see the customary FDCPA language on the form they send you … then that would indicate, in asking for a sum certain, that they are in the business of collecting debts and thus are subject to the FDCPA. (This of course, has to be determined by a court of competent jurisdiction! I am not the KING of any Court, unlike some on the Internet that would posit such!)

When it comes to suing mortgage loan servicers like Ocwen Loan Servicing LLC, be aware that they have multiple sources to dip into when it comes to fighting their legal battles, even if it means dipping into other peoples’ escrow accounts for that money!  This is why Ocwen wants your house!  They will purposefully rack up so many servicing fees that by the time the house sells and they recoup their expenses, the entire proceeds of the sale is gone and the alleged “lender” Ocwen is supposedly representing, gets nothing.

But wait!   The alleged “lender” got money from credit default swaps, default insurance and title insurance. In fact, we guesstimate about 6 different sources of loss reimbursement, not to mention the FDIC if that corporate federal agency is in play.  Then, there’s the taxpayer.  We won’t go there, for now.

So let’s say we sue Ocwen, for the sake of argument.

UPDATE: The second of four FDCPA webinars on the subject has been re-scheduled for Thursday, June 22, 2017 at 8:00 p.m. EDT.  We will be doing something different in this Webinar, as R. J. Malloy will be walking through the process with me, step by step as we discuss pleadings development and purpose.  This is truly a webinar you DON’T want to miss!  For those of you who are confused about the price … EACH WEBINAR is $39.95!  I cannot do all 4 for that price because of costs.  If I did a live event in Orlando, you’d have to pay anywhere from $495 to $895 to attend a 1-day event, plus airfare and hotel, instead of paying a total of $159.80 for all 4 online workshops and this is a huge savings to you for the same education.

In the second of four FDCPA webinars, we have some new news to update you on about applications of the U. S. Supreme Court’s Spokeo, Inc. v Robins et al_ decision … you have to prove you suffered economic harm in order to make an FDCPA action stick.  I know, it’s the nation’s highest court’s way of impeding class-action lawsuits!  In a class action lawsuit, ALL of the Plaintiffs in the class have to have suffered a similar economic harm before the court will approve the class!

Look for signup information on the CloudedTitles.com.

 

 

 

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