Tag Archives: FDCPA

GUTTING THE UNDERBELLY OF THE BEAST – PART 7

(OP-ED, first posted: September 18, 2018) —

The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing.  The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.  Any use of the theories or ideas suggested in this post is entirely at your discretion and will probably result in disaster without the proper legal help.

This is one of those sections which describes HOW “the system of things” is supposed to work.  We all know that it doesn’t always work the way it’s supposed to.  As a matter of fact, we know that in most instances, especially involving the prosecution of foreclosures, it hardly works the way it’s supposed to, especially if judges have “an agenda” or are “incentivized” to act in the best interests of the banks.  We simply can’t have the banks collapse now, can we?  It is this kind of fallacy that has screwed up our entire chains of title, as well as our legal system, with bad legislation and bad case law.

What I focus on in this segment is past cases that reflect the way things are supposed to work versus when they don’t.

“UNCLEAN HANDS” VERSUS “FRAUD ON THE COURT”

This is a slippery slope for not only foreclose mill attorneys but also the courts that hear their complaints.  The Appellate Courts of course can only rule on matters of error in the cases presented to them.  They cannot hear the entire case re-litigated again; in fact, they won’t stand for it.  Appellate Courts in Florida for example, especially the 3rd and 4th District Courts of Appeal, are famous for issuing “PCAs”, which basically means they are declining to hear the case and that the lower courts ruling stands as adjudicated.  This is one of the reasons why I bring this subject matter up now, which is due to the inept behavior of some judges in the lower courts to “clear their dockets” in the interest of justice, when in fact, many of these judges are “seniors”, already drawing a pension, that have nothing to lose by kicking you to the curb.  This is a serious false assumption on their part (the senior judges).  I don’t care whether these judges are drawing a pension or not … they are not protected by sovereign immunity (and neither is the county that they are acting as an employee of, within the course and scope of ruling on foreclosure cases), when they step “outside of the box” and appear as an accessory to something more sinister.  Sovereign immunity does not necessarily go away if an error is made.  However, if the court gets notice of statutory and ethical violations and does nothing to stop it, sovereign immunity goes away and liability for some sort of “wrong” kicks in.  Yet, no one is addressing this part of “the system of things” when in fact, it should rightfully be addressed and properly dealt with to the fullest extent of the law.

For the purposes of arguendo here, I focus on the state courts as well as the bankruptcy courts, because this is not something that can really apply to the extent that one would think in the federal court system because the federal judges are appointed for life.  One attorney in Hawaii, Gary Victor Dubin, has likened being in federal court to committing suicide.  I find no solace in federal court, given the dismal number of foreclosure cases successfully defended while bankrupting the debtors (borrowers of mortgage loans) who all came into the federal system seeking to “delay the inevitable”.  Only an egregious act by the bank would warrant sanctions and there is no singular case that I can reflect on in a U.S. District Court wherein the judge superbly did “the right thing” the first time, without having to be reprimanded for his abusive rulings by the Appellate Court.  Besides, federal courts do not like pro se litigants, as we discussed earlier.  So why are you thinking federal court?   While the FDCPA and FCRA take up a lot of the consumer-oriented litigation, it is safe to assume that these are mostly initiated in class-action form.

STATE COURT ACTIONS

JPMorgan Chase Bank NA v Pocopanni et al, 4th Jud Cir Ct No 16-2008CA-3989

In the foregoing case, the Hon. Jean Johnson did the right thing by calling the bank attorney’s behavior what it was … fraud on the court by Chase and Shapiro & Fishman.

US Bank NA v Harpster, Pasco Co Cir Ct No 51-2007-CA-6684 (Mar 25, 2010)

US Bank’s lawyers could not stand up to the scrutiny of an Affidavit submitted by the bonding company for Terry Rice, the employee who was notarizing documents within the David J. Stern law firm without having a valid commission by the Floria Secretary of State.  The documents he notarized would come back to haunt him years later in another case in Pinellas County, Florida.

M&T Bank v Lisa D. Smith, St. Johns County, FL No CA09-0418

This case was submitted by Attorney Lynn Szymoniak in her review of dozens of cases where fraud on the court was met by Circuit Judge J. Michael Traynor’s Order of an evidentiary hearing with overtones of sanctions for not one, but three separate violations of behavior by the then-Marshall C. Watson law firm.  The outcome is shown below:

M & T Bank v Smith_Order (Jun 10, 2010)

This is significant because Judge Traynor quoted Rule 4-3.3(a)(1) of the Rules Regulating the Florida Bar … “a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”  (Dismissed with prejudice!)

OneWest Bank FSB v Drayton, 2010 NY Slip Op 20429, Sup Ct Kings County (Oct 21, 2010)

The late judge Arthur Schack had seen enough banking malarkey to last him a lifetime, calling out robosigner Erica A. Johnson-Seck and demanding an affidavit under oath of her employment history for the past three years and why a conflict of interest doesn’t exit in this case involving being a signer for MERS, a VP of IndyMac Bank and a VP of OneWest Bank, all in one felled swoop, warning the bank’s counsel that: “… the new standard Court affirmation form states that “[t]he wrongful filing and prosecution of foreclosure proceedings which are discovered to suffer from these defects may be cause for disciplinary and other sanctions upon participating counsel.”

BANKRUPTCY COURT ACTIONS

Sadly, homeowners are put between a rock and a hard place when it comes to phony assignments.  Rather than believe the state court would entertain motions for fraud, which most homeowner litigants come running into court screaming, they think that filing bankruptcy will stop their foreclosure.  One thing is for certain, whether the homeowner wins or not, bankruptcy court judges especially do NOT like to be lied to or have facts that are fraudulent or misleading proffered into evidence, as you shall see below in three different cases.

In re Taylor_US Bkpt Ct E.D. Penn No 07-15385-DWS (Apr 15, 2009)

This Pennsylvania bankruptcy case revealed that Fidelity (LPS) had (at that time) 39 of the 50 major banking institutions’ business in formulating documents for bringing foreclosures against homeowners (and just when you thought title companies only handled closings).  Further, the Udren Law Firm got whacked for sanctions under Rule 9011 for attempting to “hide behind” LPS’s NewTrak computer system in processing HSBC’s proof of claim.  While this is a rather lengthy opinion, the conclusion is clear!

In Re Tarantola, US Bkpt Ct D. Ariz No 4-09-bk-09703 (Jul 29, 2010)

If anything can be more blatant, Judge Eileen Hollowell is not one to f**k with.  In one of several Memorandum Decisions, this case really “takes the cake” in the “movant filed its motion without evidentiary support of its claims, attempted to create such evidentiary support after the fact, and only disclosed its “real” evidence on the day of the final evidentiary hearing.” (Relief from stay DENIED!)  My understanding is that the court was packed with attorneys who got to witness Deutsche Bank’s counsel literally attempt to backpedal when cornered.  The judge had the goods on them (and their lawyers)!   I’m surprised that “the system of things” didn’t go further than it did and take them out of practice permanently.  Sadly, McCarthy-Holthus (or some form of them) still exists; however, Brice, Vander Linden * Wernick, PC dissolved right after they became aware of their repeated “mentions” for illicit behavior in the Williamson County Real Property Records Audit in January of 2013.  None of these attorneys were ever brought up on charges before their respective state bars and their E & O insurance policies still apparently exist.  In my book, Judge Hollowell was being too kind.

In re Wilson_Show Cause Order, US Bkpt Ct E.D. La. No 11862 (Apr 4, 2012)

IN RE WILSON_LOUISIANA BK13_MOTION FOR SANCTIONS

Again, in the foregoing case, Fidelity and the Boles Law Firm got waylaid by Judge Elizabeth Magner, who tagged Wells Fargo Bank with a $1.3-million sanction (because the loss of money is the only thing that seems to get a bank’s attention).  This case also illustrates how the major title companies are no friend of the homeowner.  Title companies have to answer to state authorities (State Insurance Commissioners) too!  Do you see where “the system of things” is going with this?

I realize I’m giving you a lot of reading to do in the foregoing scenarios … but I’m trying to illustrate how “the system of things” is supposed to work when the bank, through its attorneys, rely on phony documents that are manufactured to create standing to steal a home.

FORECLOSURE DEFENSE ATTORNEYS ARE SCARED OF THE JUDGE!  BOO!  (… and the attorney shits his shorts!) 

I wrote in the 40-page piece (in which the expert witness attorney concurred) that foreclosure defense attorneys face a real dilemma.  Like many foreclosure mill attorneys, they all have student loan debt into the tens, maybe even hundreds of thousands of dollars.  They got a 4-year degree in addition to 3+ years of law school, had to study and then sit for the state bar exam and face moral turpitude scrutiny in order to get a license to practice law from the state (what the state giveth, the state can taketh away)!

It’s no wonder they’re all scared.  They don’t want to face sanctions.  They want to be a friend to everybody, including the other side’s lawyers that are trying to steal their clients’ homes.  No attorney has the set of cajones to stand up to these shysters unless they have a snoot-full of evidence that can conclusively prove that the other side has come to court with unclean hands.  Which brings me to the HSBC v. Buset case:

HSBC Bank USA NA v Buset_Final Order Granting Mtn for Involuntary Dismis…

HSBC Bank USA NA et al v Buset et al, 3D16-1383 (Feb 7, 2018)

Sadly, Florida’s 3rd DCA reversed Judge Butchko’s ruling, to which Buset’s attorney, Bruce Jacobs told me, “This is war!”  (in other words, “this ain’t over yet”).

Part of the problem might be that the expert witness in this case was NOT an attorney with the capability of reporting the fraudulent and misrepresentative assignments to the Florida Bar.  Attacking an appellate court is virtually unheard of … that is, until we find out who cuts their paychecks and who bonds them.  Every judge is supposed to be bonded, even the senior “fossils” brought out of mothballs that have no problem throwing homeowners out of their homes because they can, without retribution (or so they think).  If the judge commits an illegal act, not only can he be removed from the bench, the county he serves as a judicial officer in can be held liable in certain cases!

We are not asking the homeowner’s attorney to stand up and be counted (challenging the other side’s credibility, screaming “fraud on the court”, etc.).  We let the expert witness attorney do that.  The bank’s lawyer has every opportunity to recant his testimony in both his pleadings and in his oral statements.  If he refuses to do so, then he can pay the price.  We just want the homeowner’s attorney to get the expert witness attorney on the stand and ask him a series of questions.  In other words, we just want the attorney for the homeowner to do his job!

In previous posts of this nature, we talked about the insurance factor.  The direct frauds promulgated by these law firms could have resulted in attacks against their E & O policies, but didn’t.  Any judge who didn’t do the right thing in running a proper tribunal could have faced a judicial review board and lost his bond because it would have been “attacked” and challenged as well.  If a law firm doesn’t get payment for legal fees when its lawyers face the music before their respective bar disciplinary panels, then they have to come up with that money out of their own pockets, which while not being a benefit to the homeowner, it is a bitter detriment to the lawyer, who now has to think about how he’s going to pay off that big student loan debt he’s got in addition to $10-$20K in legal fees incurred as the result of his disciplinary proceeding!

The judge who can’t “do the right thing” represents the county government’s judicial process and has the privilege of sovereign immunity, UNLESS he condones felony behavior in his court.  Then his sovereign immunity can not only be at risk, the county’s general treasury may be raided to pay for the damage he caused!  How’s THAT for justice!

But wait, there’s more … stay tuned!

 

 

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U.S. NINTH CIRCUIT REVERSES FDCPA DISMISSAL; CAN’T USE STATE LAWSUIT TO CONFOUND FEDERAL LAW!

BREAKING NEWS — 

While not presidential, the U. S. Ninth Circuit Court of Appeals has reversed a Nevada FDCPA case, declaring in part:

The panel reversed the district court’s dismissal of an action brought against a debt collector under the Fair Debt Collection Practices Act.

The panel held that a debt collector cannot avoid liability under the FDCPA by obtaining the debtor’s lawsuit through a state court writ of execution.

The panel concluded that such a procedure frustrates the Act’s purpose and is thus conflict- preempted. The panel remanded the case for further proceedings.

To read the case, click here: Arrellano v Clark Co Coll Svc LLC et al, 9th App Cir No 16-15467 (Nov 17, 2017)

OP-ED —

Sadly, too many U.S. District Court judges are quick to dismiss debtor claims.  They appear to treat these types of actions as if the debtor is trying to escape debt, which in many cases, is NOT the point.

The first point here is: The debt collector bought its own lawsuit from the Clark County, Nevada Sheriff for $250 in order to avoid the appearance of an FDCPA violation.

The second point here is: The debt collector cannot give the alleged debtor a 30-day notice to dispute the validity of the debt (or any portion thereof) while engaged in litigation that requires a 20-day response (answer).

See Ellis v. Solomon and Solomon, PC, 591 F. 3d 130 – Court of Appeals, 2nd Circuit 2010 – Google Schola (a Connecticut-originated debt collection case) for further clarification on the improper use of lawsuits).

In my opinion, the 9th Circuit did the right thing.

COMING SOON: FDCPA Webinar #3 … Class Actions in FDCPA Claims!  

ALSO COMING SOON: Chain of Title Assessment (COTA) Online Webinar … a one-day, online webinar workshop (divided into (5) 90-minute sessions (all presented on the same day).

Sit in the comfort of your home at your computer and learn how to analyze chain of title!

Learn how to recognize chain of title issues and what the purpose of the various legal remedies are to combat them!

Save time and money by learning to avoid making foolish investments in property that will require exorbitant legal fees to “fix” the title!

Learn how to do COTAs to do your own legal research to save money on attorney’s fees in case development!

Learn how to do COTAs to make money in the future helping others in their “good fight”!

… and BTW, Happy Thanksgiving!  Blessings to you and yours for your health, wisdom and prosperity.

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BREAKING NEWS! SCUMBAG EX-FORECLOSURE MILL ATTORNEY IN CONGRESS TRYING TO AMEND THE FDCPA TO EXEMPT ATTORNEYS FROM LIABILITY!

BREAKING NEWS, OP-ED — 

Three items just crossed my desk that you should be aware of:

FIRST:

Congressman David Trott (of the foreclosure mill law firm Trott & Trott) is “hot to Trott” this legislative session, again trying to proffer amendments to the Fair Debt Collection Practices Act to exempt attorneys from liability.  Here is a pdf downloadable copy of this scumbag’s bill (sponsored only by him): H.R. 1849 (FDCPA Amendments, 2017).

The language speaks for itself and you should be speaking out against it!   Call your Congressperson and Senator immediately and tell them NOT to support this bill.  This bill takes all of the fairness out of debt collection and once again attempts to make it easier for attorneys to break the law!

SECOND: 

If you are facing Bank of America in court during your foreclosure proceeding, you should know that:

  1. Bank of America will likely produce a “robo-witness” to testify against you at trial.

This reporter has just learned from inside sources that Bank of America flies its designated key witnesses to Dallas, Texas to participate in “mock trials”, both jury and non-jury, to run its key “witnesses” through the proceedings to educate them as to what to say and how to say it in order to avoid scrutiny in cross examination.

2.  Bank of America has a “stable” of these “robo-witnesses” who spend little time looking at actual files (potentially the day before they give testimony, or the day of in some cases), working on actual case loads for a considerable length of time in order to gain the experience necessary to truthfully testify that they have actual, personal knowledge of the bank’s business records.

This reporter has further learned that witnesses are ostracized, punished and/or demoted or transferred to an administrative position within the BofA banking structure if they lose their credibility by failing to help outside counsel win their foreclosure case too many times.  Thus, it is reasonably certain that if Bank of America has a stable of whores who fabricate and embellish the truth on the witness stand, it is likely other banks are doing this too and the homeowner’s counsel should focus on the witnesses’ actual training, including time spent in front of a mock jury learning to adequately “testify” (which may have repercussions if they don’t adequately testify) to screw homeowners out of their homes!

Not only are the business records and the personal knowledge of them at risk as testimony, but the process by which these “employees” who do nothing but roam the country on a minute’s notice and do nothing but testify at trials in favor of Bank of America, should be impeached by further cross-examination and scrutiny of their real training … including, WHO trained them, HOW they were trained, HOW they are punished if they don’t “hold up” in court and WHERE they are trained.  These people cannot be believed and this is just one more reason homeowners need to have this information in their arsenal to “fight the good fight”.

NOTE: The people that attended last weekend’s Foreclosure Defense Workshop in Orlando, Florida know more than what you know.  If you didn’t attend, you didn’t find out about our new “secret tactical weapon” that will not only potentially “shut down” any foreclosure case, but force investigations by state bar associations all across the country of the parties responsible for furthering the fraud brought upon the courts across America in 99.9% of these cases! 

Knowledge is power!

Remember the saying, “My people perish for lack of knowledge”

Don’t be one of those people.  “Study to show thyself approved!”

God’s Blessings to you all!

and THIRD: 

Nationstar Mortgage LLC has changed its name to “Mr. Cooper”:

 

Mr. Cooper?  Seriously?  This sounds like the pedophile down the street.  It’s a wonderful day in the neighborhood.

We are also learning that Select Portfolio Servicing has changed its name to “EXCELERAS”!   If you have received notice of this, please email it to me at cloudedtitles@gmail.com.

 

 

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U.S. 9TH CIRCUIT RULES ROBINS HAS ARTICLE 3 STANDING!

BREAKING NEWS — 

For those of you that haven’t been keeping track of the differences of opinion between the U.S. Supreme Court and the U.S. 9th Circuit Court of Appeals in the Spokeo v. Robins case, the 9th Circuit panel has issued an opinion that the Plaintiff (Robins) did in fact allege a “concrete injury”.  I posited this dilemma in my book FDCPA, Debt Collection and Foreclosures to some extent.  Now it appears that the 9th Circuit’s holding played in fact off of the Big Top’s decision, which was narrow, wherein a violation of the FCRA (according to this decision), an acronym for the Fair Credit Reporting Act, was enough to include this in an FDCPA action to establish that when servicers (who act as lenders) wrongfully put information on your credit report or in the alternative, debt collectors report things to the credit bureaus that are known to be false (or wrongfully reported by servicers during a period of time wherein a Qualified Written Request is pending), prevents the consumer from moving forward by hampering their credit scores, which results in future credit damage, which is an actionable injury, enough to establish Article III standing.

As you may remember, the U.S. Supreme Court issued a May 16, 2017 ruling declaring that the 9th Circuit failed to address whether the statutory provisions at issue were established to protect Robins’s concrete interests, as opposed to purely procedural issues. The 9th Circuit responded that the FCRA was created to protect consumers’ interests in mandating that credit reporting agencies issue truthful and accurate credit reports, which affect a consumer’s future lifestyle changes, the ability to obtain credit and employment potential.

The 9th Circuit remanded the case back down to the Central District of California for further action.  For those of you in the 9th Circuit states, you should be jumping for joy, because the little guy has won another round.  To see the opinion, click the link: Robins v Spokeo Inc, 9th App Cir No 11-56843 (August 15, 2017)

It stands to reason that we will be discussing this in more detail in our third of four FDCPA webinars, coming soon to the CloudedTitles.com website.

In the meantime, for those of you continuing to fight foreclosures pro se, you may wish to pay attention to the following and inquire about attending our upcoming foreclosure defense workshop in Orlando, Florida:

Download the Registration Form here: FDW ORLANDO REGISTRATION FORM

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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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