Tag Archives: Hawaii Supreme Court

HAWAII SUPREMES TELL U.S. SUPREMES TO PISS OFF … AND OTHER STUFF!

(BREAKING NEWS — OP-ED) — The author of this post does not posit legal advice here.  It’s is food for thought for your own educational value! 

Honolulu … Gary Victor Dubin has done it again!   This time, it’s a rehash of the Reyes-Toledo case “perfected”!

Bank of America, NA v Reyes-Toledo et al, Hi Sup Ct No SCWC-15-0000005 (Oct 9, 2018)

I know it’s a week old case, but it’s worth the commentary because of something the Hawaii Supreme Court basically told the U.S. Supreme Court (who basically came up with their own “plausibility” pleadings scenario when they ruled in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal.  It basically gave attorneys that represent the banks the opportunity to get 12(b)(6) dismissals of foreclosure cases simply by removing them to federal court and citing the two foregoing cases, which basically … in layman’s terms … requires a pleading to contain facts that are totally “fact”, enough to substantially prove their case.  That also meant (in Hawaii) that their “Notice” pleadings weren’t sufficient.  In the foregoing ruling, the Hawaii Supremes said otherwise!   That is significant for homeowners living in Aloha because the judicial foreclosures commenced there (because Hawaii is a mortgage state) get to review cases that have minimal allegations instead of having to write a non-fictional “book” every time an attorney had to answer or file a complaint to shut down the other side’s foreclosure attack.

In the foregoing instance, the Hawaii Supremes told the Hawaii Appellate Court and the Circuit Court, “You BOTH got it wrong!”

First, understand that the entire merger scenario presented by Bank of America, N.A. is false.  It did NOT happen that way.  Every time Countrywide Home Loans is mentioned (in any form), Bank of America conveniently neglected to mention Red Oak Capital or any other entity involved in the actual acquisition of Countrywide Home Loans, Inc.  That in of itself is false and misrepresentative and Bank of America had to have relied on an Assignment of Mortgage that was “manufactured” to create standing in order to bring its claim in the first place!  Therefore, B of A’s attorneys should be brought up on charges to the Hawaii Bar and either get heavily sanctioned for wasting the Court’s time or face disbarment for committing repeated ethical violations!  Yes, Hawaii does have “Misconduct” as a section in its Rules of Professional Conduct that mirror the ABA’s own set of rules.

Page 3 of this 44-page Ruling clearly cites how the Appellate Court applied the “plausibility” standard set by the U.S. Supreme Court, when in fact, Hawaii has its own set of pleading standards!  Page 4 at Paragraph 2 REJECTS the plausibility standard.  If this doesn’t send a clear message to all of the Circuit Court justices in Hawaii, nothing will.  In fact, this Ruling should be shoved up every one of their asses until they “get it”!  Otherwise, the system of things could see to it that each county in the State of Hawaii “pays dearly” out of its own coffers and each circuit judge is removed from the bench.  This is why we have Appellate Courts (because Circuit Judges do not always, in fact almost always, DON’T DO THE RIGHT THING!) and in this case, the Appellates applied the wrong standard as well.

As to where MERS is concerned … I don’t believe that any Court in the land has been tasked with having MERS and its representatives answer to HOW an agency relationship was established and HOW MERS had any right to transfer a mortgage loan, given the fact that on its own website (owned now by ICE), MERS declares that it has no interest in loans and doesn’t take any monthly payments.  Only one judge in Florida (that I am aware of) did the RIGHT THING in knocking out a servicer’s phony document from the land records because MERS never gave any rights to HSBC Bank USA N.A.!  How then can MERS transfer interests it doesn’t have?  It’s the phony document scam again.  It always has been.  And the banks’ attorneys keep relying on these phony documents to foreclose and no one does the right thing to expose the document for what it is and hold the attorneys liable.

You see, great discovery is like an enema.  It’s supposed to help flush out the shit!   Can I be any more succinct than that?

The problem is, MERS hardly answers any of the discovery propounded against it.  And now that MERS is owned lock, stock and server by the parent company of the New York Stock Exchange, how much of a conflict of interest is there in our court systems now?!?!?!?!?!?!?!?!?  MERS and its counsel seemingly don’t believe they have to answer any of the discovery served upon it.  If it does, it’s with an objection.  Homeowners would rather waste thousands of dollars plying discovery on MERS rather than go after the notary and the executor(s) of the phony document that contains the false representations the bank’s attorneys keep relying on!   It’s no wonder they’re losing!  Sadly, in one particular case I’m personally aware of, an attorney was paid $6,000 (by his client) to take the depositions of a notary and a robosigner that clearly lied on the assignment … and he took the money and spent it and did nothing.  In fact, the attorney didn’t even plead the phony document was phony!  When you have homeowner’s attorneys that can’t or won’t do their jobs properly, you wonder how homeowners are getting wins at all!

Such was the case in Alabama.  The attached case made its way to the 11th Circuit Court of Appeals.

Jackson v Bank of America NA, 11th App Cir No 16-16685 (Aug 3, 2018)

Needless to say, the attorney for the homeowners in this case is in real trouble!  To my personal knowledge, this is not the first case he’s had that has been mishandled or improperly filed.  (Let’s see what the 11th Circuit does!)

The foregoing represents a sheer waste of homeowner money and resources.  The foregoing represents a delay game gone wrong.  The foregoing represents clear attorney misconduct.  The foregoing represents an opportunity for a federal appellate court to really mete out a severe punishment hefty enough to put the attorney out of business for good without even having to bring him on on State Bar ethical violations!

The irony of the fact that both cases involve Bank of America NA … and they ended up with different results.

The system of things worked superbly in one instance … and clearly failed in the other.  Ah, the “learning curve” we all must face.  At least the Hawaii Supreme Court appears to have its stuff straight!

For those dealing in Bank of America merger issues, it’s all going to be about the assignments and all of the false and misleading statements contained within them!  Chase isn’t much better with its self-dealing assignments.  Sadly, title companies and the U.S. government are all “in bed” with them.  This is what happens when we move away from the truth and the liars are allowed to get away with it.  They get arrogant and believe they can keep doing the same thing over and over again.

History Repeats Itself … get ready for another round of subprime mortgage lending … a New York attorney just sent me the linked article.  Read it and weep.

SUBPRIME MORTGAGE LOANS BACK ON MARKET … 

Listen to Dave Krieger on City Spotlight – Special Edition on WKDW-FM, 97.5 FM, every Friday night at 6:00 p.m. Eastern.  This week, Dave will be discussing the attached article with co-host, R. J. Malloy (retired attorney and former Clerk to a U.S. District Court judge), along with Jacob Gil regarding Florida’s Amendment 2 campaign.  If attorneys and judges are listening to Dave’s show, you should too!  In fact, over 7,000 listeners dial us up every week on kdwradio.com from all over the globe!  Knowledge is power!

 

 

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STRIKE TWO AGAINST OCWEN’S “QUALIFIED WITNESS”; SAY ALOHA OCWEN!

BREAKING NEWS, OP-ED … 

(Honolulu, HI) — For those of you looking for ammunition against Real Estate Mortgage Investment Conduits (REMICs) and the servicers and subservicers who screw homeowners on their behalf, a new case out of Hawaii has surfaced that should put more securitization and civil procedure into greater detail, courtesy of foreclosure defense attorney Gary Victor Dubin.  You can download the .pdf of the Hawaii Supreme Court ruling here:

US Bank NA v Mattos, Sup Ct HI No SCWC-14-0001134 (Jun 6, 2017)

For those of you battling against U.S. Bank, NA as a Trustee of a REMIC, you should know that U.S. Bank has admitted in a 4-page brochure that they do NOT know when a Borrower is in default:

US Bank Brochure – Role of the Corporate Trustee

Further, U. S. Bank (in the same brochure) admits that the Borrower is in fact a part of the securitization chain!

The Office of the Comptroller of the Currency, long before the Glass-Stegall Act was repealed in 1999, issued a Comptroller’s Handbook on Asset Securitization that also stated the Borrower was a party to the securitization chain (see Page 8 of 92), contemplating in advance of how the chain actually was supposed to work:

OCC Asset Securitization Handbook

Ocwen, as you may recall, admitted to the United States Government (via 6 different federal agencies) in writing that when Borrowers don’t make their payments (to the REMIC), Ocwen, as servicer through the Sales and Servicing Agreement, makes their payment for them, in an article I just posted, see page 2 (bottom) and 3 (top) of  EXHIBIT 29

The Hawaii Supreme Court reversed an appellate court ruling, which upheld the district court’s ruling that U.S. Bank, as Trustee of a REMIC, had the right to foreclose on a property belonging to a Hawaii property owner, which other courts across the land have dared to lightly tread upon these same similar issues. Sadly, borrowers seldom ever follow through on getting to the nation’s highest courts (the state Supreme Courts) to achieve finality.

I beg of you to read Gary Dubin’s case, because part of the equation in securitization failure has been examined and ruled upon by a state Supreme Court (Hawaii).  I am singularly surprised that other state’s haven’t made the same glaring rulings finitely (Florida’s 4th DCA is close, but NOT THIS CIGAR!).

This case is a rarity that should be examined in more detail because the Pooling and Servicing Agreement (“PSA”) was included in the attack.  What’s worse, Ocwen’s “Contract” witness, who tendered an affidavit claiming he was a “know-it-all” about Ocwen’s business records (which 20 states and the District of Columbia are calling a sham), which did nothing for U.S. Bank because U.S. Bank’s attorneys couldn’t prove the relationship between Ocwen and U.S. Bank.

I was truly shocked about the part of robo-signing, which in fact was mentioned in the ruling.  No one has yet to challenge this act as part of a civil conspiracy (yet); however, this is to come.  I am not going to go into detail for you here, because I know many of you out there like to do your own research into the elements of civil conspiracy in your respective states, as in a Google search, “What constitutes the elements of civil conspiracy in _____ (insert your state here)____?” and see what pops up.  The burden of proof is much lower than RICO and easier to prove by attacking the signers, witnesses and notary involved in the assignment.

Oh, darn! This involves spending money doing depositions, huh? Shit!  And here you thought you were going to get a “free house”!  I don’t know where the bank’s attorneys get off making these snide remarks about homeowners wanting a free house, because they don’t even know what the homeowners are thinking.

The Trustee hasn’t paid a nickel to the investors that it can document; however, EXHIBIT 29 clearly identifies WHO pays the investors.  So, taking this to its logical conclusion: If the investors are getting paid, then how can the Trustee, on behalf of the investors, claim the investors have been harmed or prejudiced because the securitization chain failed?  I have no contract with the servicer, do I?  My contract is the Mortgage and Note. Those contracts are with the Lender.  When the Lender goes belly up, as history has shown us, the mortgage servicers use the MERS® System to “keep the lie going” by giving unproven authority to thousands of writer’s cramped individuals who execute assignments in its name, being told by third-party document mill executives that it’s perfectly legal to do what they’re doing.

This is why the entire banking underbelly is corrupt and illegal as hell.

The securitization chain failed because the parties to the trust DID NOT follow the REMIC’s own governing regulations, not because the investors weren’t getting their payments!  When push came to shove, Ocwen and other third-party butt plugs had to gum up the chain of title with what I consider falsified documents, Assignments of Mortgages and Assignments of Deeds of Trust.  That is my new term for document mill robo-signers who have no knowledge of the facts contained in an assignment they’re claiming they have knowledge of! To even proffer this … and then brag about it like NTC does (the McDonald’s of robo-signing, “over 16-million served”, referring to the number of documents this third-party document mill says it’s recorded as a means to “clear title”) … should have put this entity, its directors and employees, in prison.  However, since the banks have virtually paid off the state legislators and executive enforcement arms … no one has gone to prison, yet.

A Court Case Full of Surprises! 

I am glowing about the securitization/forensic analysis included as a mention in this Hawaii case as a means to educate a judge … and nothing more.  Most judges can’t wrap their heads around this kind of testimony because they are only thinking about their retirement accounts and how those accounts might be affected if they rule against the bank.  Unfortunately, what they DON’T GET … it that the entire 424(b)(5) prospectus is in play here, NOT just the PSA portion of it!  Let’s take a look, shall we?

SEC Info – Mortgage Asset Securitization Transactions Inc – ‘424B5_ on 1:14:05 re: Mastr Alternative

There are 357 pages in the Prospectus attached above.  Yes, the WHOLE enchilada!  Why just pick out the PSA?  That’s like eating the peas and leaving the steak! It doesn’t contain ALL of the information now, does it?  This is the Prospectus for the foregoing Hawaii case! 

Look at the portion of the Prospectus that talks about the PSA.  If you look under the TABLE OF CONTENTS, the Pooling and Servicing Agreement is found beginning at Page S-95.  However, the cut-off and closing dates that are related to the issues expressed within the Pooling and Servicing Agreement are found OUTSIDE OF the section on the PSA, at Page S-5, 90 pages away from the PSA!  The Prospectus of this REMIC (and any REMIC for that matter) is the entire “sales pitch” of the REMIC!  It’s the entire set of governing relations for the REMIC!  Why then are we just focusing on the PSA when the entire 424(b)(5) Prospectus has all the rest of the nuggets that make the PSA make sense?   Because judges are lazy and don’t want to read 357 pages of this stuff.  If judges figured this out, there wouldn’t be one retirement plan vested in RMBS’s and CMBS’s!

This is the end result of what the repeal of the Glass-Steagall Act has caused.  This is the lazy man’s excuse for not wanting to read (texting is more funner, sic).  This is why Sen. Elizabeth Warren’s reintroduction of the Act cannot go unsupported.  The people need relief here.

Text – S.881 – 115th Congress (2017-2018): 21st Century Glass-Steagall Act of 2017 | Congress.gov |

I have talked about securitization failure systematically on this blog prior to the mass deletion of what came before this set of recently-posted articles.  It would make no sense to educate a judge that thinks his retirement account will fail if he rules against a bank.  This is why I have always told consumers involved in foreclosure litigation to “background their judge” (hire a private investigator if you have to, to dig up the judge’s nasty little political secrets)!

What has happened since the Glass-Steagall Act was repealed has turned into an all-out war involving servicer fraud and this case is a clear example of it.  I seriously doubt that U.S. Bank was really involved in this case (more like Ocwen).  If the attorneys for the bank were actually forced to admit WHICH aggrieved party they were representing in this case, they probably couldn’t tell you.  My guess is, Ocwen retained them because Ocwen wants to steal your house to reimburse itself for all those pesky servicing fees it racked up paying the REMICs off!  This is how Ocwen wants to get rich off America … and it uses Altisource and REALServicing (more-than-arm’s-length devices) to pull it off!  Any time that you see “corporate layering”, you are going to have to dig deep like many of the readers of this blog do … and pull up the serious stuff that matters.

We have to be smarter than the banks if we want to win.  Unlike the banks, we have to expose the truth!

This is my truth: OSCEOLA COUNTY FORENSIC EXAMINATION

 

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