Tag Archives: quiet title action

MERS RULES IN THE FIRST U.S. CIRCUIT COURT OF APPEALS; SCREWS 2 HOMEOWNERS

(BREAKING NEWS – OP-ED) — The attached cases were argued by the same attorney for the homeowners. Different attorneys for the foreclosure mill, pro-bank law firm of K&L Gates argued for the banks.  This is provided for your educational purposes only and to warn you of the dangers of litigating anywhere within the First U.S. Circuit Court of Appeal’s jurisdiction. My opinions of MERS and what it stands for are my own and do not constitute legal advice.  After all, MERS would like to put a bullet in my head. 

Believe it or not, the U.S. Circuit Courts of Appeal are still in operation despite the corona-crisis.  Last Friday, the appellate panel screwed two homeowners in REMIC foreclosure cases.  Worse yet, one case relied on the outcome of the other case to make the ruling finite. When you have to go into this particular federal appellate court, remember who has set more favorable case law here: Mortgage Electronic Registration Systems, Inc. (“MERS”: now owned by the same bunch that owns the New York Stock Exchange).

Here’s the first case, that the appellate panel used to set the standard for the second case:

Dyer v Wells Fargo Bank NA, 1st App Cir No 15-2421 (Apr 17. 2020)

From the outset of this ruling, it looks as if “Dreamhouse” didn’t do the Plaintiff any favors by including MERS as a nominee within her mortgage.  After all, Dreamhouse appears to have been a corresponding lender who got its money for this loan from an investor pool.

Remember, you’re in the first circuit here.  MERS rules!  MERS gets to do anything it wants.  Assign mortgages.  Publish confirmatory assignments.  I’m so convinced that MERS (through K&L Gates’ attorneys) gets to control the entire narrative in court arguments I could just spit fire.  Even though the mortgage document doesn’t specifically say that MERS can “assign” anything, MERS got out in front of the mortgage foreclosure crisis and pre-established the narrative, so it could come in in subsequent cases and argue that narrative and win every time.

All the same arguments we’ve heard before (specifically in Culhane v Aurora Loan Svcs_021513-1) that MERS can do anything it wants to. However, the narrative is controlled by what MERS can do or not do.  No one is pointing to the actual parties acting in MERS’s name. What this appears to be is just another redux of Culhane.  MERS’s attorneys can argue that MERS is both a nominee (agent) for the Lender and has all of the power of the Lender, especially in THIS Circuit … and get away with it.  This is why I don’t like federal court for litigating foreclosure cases. This is why banks love federal court to argue foreclosure cases … because they win 99.9% of the time!

Old arguments aren’t working anymore.  We need new ammunition, given the fact the second case ruling was predicated on the first one:

Hayden v HSBC Bank USA NA, 1st App Cir N0 16-2274 (Apr 17, 2020)

SAME ‘OL … SAME ‘OL … 

By now, if you’re reading your own MERS-originated mortgages, you can plainly see how you’ve F**KED yourself!  You gave MERS the “official” and “contractual” right to F**K you.  They can foreclose and sell your home.  They can rape your bank account in the name of preset case law they set in their favor.  They can release and cancel anything.  They can do anything your lender does … and can even come into court and act as your lender. Let me put it bluntly here … MERS is a disguise worn by the servicer.  It’s the servicer that’s actually doing the sodomizing here.

In this case, the Haydens filed multiple bankruptcy cases over time, delaying their foreclosure (and screwing up their credit) until 2026.

Again … as you can see on Page 3 of this ruling … MERS can do anything it wants … including telling the First Circuit to “get on its knees and bark like a dog”!  Again … old argument from the banks … borrowers do not have standing to challenge a mortgage assignment based on a PSA violation!  Again … the banks and MERS are controlling the narrative.  Old hat.  Doesn’t work.  Still being plied upon the courts and borrowers are paying for an attorney to argue the same old hat stuff … and losing.  Statute of limitations arguments … still old hat.  Not working anymore.  Hasn’t worked since 2o15 yet is still being argued.  Borrowers are still paying attorneys to argue the same things that don’t work.  The First Circuit isn’t buying any of it. It’s not having much better luck in any of the other circuits that have had the same ‘ol, same ‘ol garbage pleadings tossed at them.

Oh … and the PSA … that’s the banks’ narrative.  My narrative is the entire 424(b)(5) Prospectus.  It’s used as evidence in the C&E to establish fact.  You have to pick your battles carefully.  Each battle costs money.  After this corona-crisis is over … foreclosures will cost money. Money that hasn’t been there because half of the economy was shut down versus going in and letting “herd immunity” prevail.

YOU’RE DAMNED IF YOU DO AND DAMNED IF YOU DON’T! 

President Trump can’t do anything without being criticized for it.  He shuts down the economy and the public for its own protection and everyone on “the other side” bitches because he either didn’t do it soon enough or it wasn’t the right move in the first place.  You can’t win with these people.  We know the virus started in Wuhan, China.  But as soon as the President references it as the Chinese virus … now he’s a racist.  His opponents don’t know when to quit.  Sometimes, keeping your political trap shut can work in your favor.  They’re making a mockery of everything the President does, yet most of them have had several decades of serving in Washington to “get things done”, but we’re no better off with them than without them.  This is politics folks. If you don’t like the way things are, change them.  But remember …

The President is the head of the Executive Branch, the branch that enforces the laws.  The President is tasked with running the country … not the person that makes the laws in the first place!  He’s a CEO, not a politician, which is why his opponents hate him so much. He won’t play in their “sandbox”.  Boo frickety hoo!

Congress makes the laws (in the form of bills).  When Congress introduces a “bill” … that “bill” costs money to make it work. Taxpayer money. Someone has to pay for it and it sure ain’t Congress!  This latest stimulus package again demonstrates how much pork Congress got away with spending … and the economy that has been doing so well (that all these lame-brained politicians are trying to take credit for) is now stagnating.

The Courts decide whether the laws are constitutional, are properly enforced and/or whether Congress overstepped its bounds when it enacted a law.  Today’s courts like to issue very narrow rulings, which is why you have cases like these being decided against homeowners.

This is our system of checks and balances folks.  It’s what the will of the people created. Deal with it!

And what the hell does this have to do with foreclosures?

This is why the Dyer ruling was 12 pages and the Hayden ruling only 5 pages.  Because the Dyer ruling says enough to where it doesn’t have to be repeated ad infinitum, ad nauseam in the Hayden ruling.  It has everything to do with the atrocities that banks are allowed to get away with, using MERS as a disguise for the real truth.

Everything in these two cases affects every ruling that comes out of the U.S. First Circuit Court of Appeals.  Other federal circuits may choose not to rely on these two cases … or Culhane for that matter.  But it clearly shows circuit split when it comes to how the courts treat MERS and what they will let MERS get away with.  If you don’t know what to plead … how can you expect to win your foreclosure case?

THE CANCELLATION & EXPUNGEMENT ACTION (The “C & E”) …

Because we’re seeing results with using the C & E, it goes without saying that I’d talk about it again.  Neither of these two cases discussed anything within the contents of the document that made sense other than the date and time of the event and the claims the assignments made violated the PSA.  That moves the argument into the bank’s narrative.   To argue the bank’s narrative is to liken that strategy with the comment Robert Stack made in the comedy movie Airplane: “That’s just what they’d be expecting us to do!”

The C & E does just the opposite as it moves the narrative in a different direction … one “they won’t be expecting”:

  1. Virtually all 50 states have common law rights to cancel written instruments. That includes bogus assignments!
  2. Virtually all 50 states have penal codes that prohibit the recording of false utterances in the public record!
  3. Virtually all 50 states have a consumer protection act that can be tied to the recording of the false utterance!

The C & E is postured within a declaratory relief action that can be utilized while the banks aren’t foreclosing … hint, hint:

  1. The declaratory relief action is discretionary in federal courts, which is why we like to use it in state courts!
  2. The declaratory relief action can be accompanied by a notice of lis pendens, which can be effective in stopping title closings in foreclosure cases!
  3. The declaratory relief action in many state courts can ask for a ruling on a document to be applied to the entire chain of title as a precursor to filing a quiet title action.

The C & E costs less money to effectuate than most foreclosure defense actions yet still is able to achieve a timed delay:

  1. Investors use C & E’s to buy time.  Time is of the essence no matter what battle you pick. This can buy more time if used correctly in both deed of trust and mortgage states!
  2. We are now seeing that filing corresponding criminal complaints with local law enforcement is “shaking things up” in the civil realm when it comes to litigating false utterances!
  3. Many times, the criminal intent contained within the false utterance can be used to put a court on notice that someone is trying to “protect the sanctity and decorum of the court” by keeping the judge from becoming an accessory to the criminal acts committed by the servicers’ employees, acting in the name of MERS!

You still have time to factor in a positive outcome.  There is still time to get your 2-day training session (with materials) on DVD (8 discs) and train yourself and your attorney to fight the good fight because the foreclosure moratorium is still in play here for most of you. Visit the Clouded Titles website for more information.  Supplies are limited so order yours now!

As a special added bonus … your order includes a 30-minute consultation session with the author! 

 

 

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BRUCE JACOBS CATCHES FLAK FROM FLORIDA’S THIRD DCA!

(BREAKING NEWS – OP-ED) —

The statistics are unlike anything I personally have ever seen as a consultant to attorneys on matters of foreclosure, chain of title and the system of things … BUT Miami-Dade foreclosure defense attorney Bruce Jacobs has put himself in the firing line by causing the Third DCA into an apparent retaliation by issuing Jacobs a Show Cause Order as to why he should not be sanctioned for violating not only Florida Appellate Rules of Procedure but Florida Bar Rules as well.  I’ve personally met and talked with Bruce Jacobs, a former Miami-Dade State’s Attorney, a devout follower of Judaism.  There are those in the foreclosure world who think little of him for various reasons, while others think he’s too busy to handle their cases, while yet others believe he is a true fighter for “the little guy”.

Miami’s Daily Business Review (via law.com) just broke a story yesterday (October 4, 2018) of the potential sanction news against Jacobs. After doing a little digging, I found the subject per curium ruling that put Jacobs in the crosshairs of some very pissed off judges.  It all stems from their reversal of the famous HSBC v. Buset case, where Jacobs represented the Busets.  After the 3rd DCA’s reversal, I asked Bruce about their opinion in Buset and he told me succinctly that “This is war! This ain’t over yet!”

In a State where homeowners have had more opportunity to figure out “the system of things” as to how foreclosure courts behave, the statistics you’re about to read, which were contained in a filing with the Florida Supreme Court in the cited case, includes statistical evidence of how Florida’s Third DCA is apparently biased and prejudiced against delinquent homeowners:

Alexander v Bayview Loan Svcg LLC, 3D16-2228 (filed April 20, 2018)

Knowing what I know about phony assignments, I proffer an idea here that squarely puts “the system of things” into motion.  By reading this “Opinion” issued by the Third District Court of Appeals in Florida, see if you can make out the frustration not only felt by Bruce Jacobs but by virtually ALL homeowners who’ve ever been in front of any judge in the Third DCA:

Aquasol Condominium Assn Inc v HSBC Bank USA NA et al, 3D17-0352 (Sep 26, 2018)

Again, Jacobs has locked horns with a nemesis that has a propensity to lie in the manufacture of assignments.  In a case in Hillsborough County, Florida, HSBC’s “document manufacturing” came under serious scrutiny and the recorded document was ordered cancelled and expunged from the Clerk of the Circuit Court’s official records in that county.  The case involving that apparent suspect document is still ongoing and if “the system of things” is allowed to play itself out, one particular foreclosure mill law firm and five of its attorneys could be facing the same consequences as Jacobs is now.  It is problematic that most homeowners let their frustrations get in the way of common sense, but the latest “Opinion” seriously appears to put Jacobs in a very tenuous position, since he’s called out the Third DCA for what he believes they apparently are … biased and prejudiced against homeowners … enough to ignore obvious frauds on their own court systems!

However, it should also be made clear here (IMHO) that “the system of things” as I have described in the 10-part series, “Gutting the Underbelly of the Beast” was not implemented in Buset … was clearly not implemented in Alexander … and was definitely NOT implemented in Aquasol, predicated on what didn’t happen in Buset.  That may be tough for some to get their head around; however, when you see the quotes that Bruce Jacobs included in his brief to the Third DCA, which made them recoil, it’s clear the Opinion they issued was really a Show Cause Order that the media is now going to make a 3-ring circus out of, especially in light of what happened to Pinellas County foreclosure defense attorney Mark Stopa.  It’s obvious that Florida does not like aggressive foreclosure defense attorneys, whose first duty is to “the Court”.   With the advent of a Florida judge testifying (at Stopa’s hearing) that Florida foreclosure court judges are incentivized to clear their dockets and receiving bonus cash rewards for doing so, it is very clear that our courts have allowed their own political agendas to taint “Lady Justice”.

I’ve always said it’s about the assignments.  It’s always about the assignments.  This is why C&E actions are so vitally important:

(1)  They dissect the false and misrepresentative information contained within the assignments that are being relied upon by bank’s counsel in foreclosure proceedings.  This involves deposing robosigners.  HSBC has robosigners.  They defaulted when challenged in a C&E as to what authority they had to execute the document.

(2) They bring to light certain statutory violations. Florida has a civil component to its criminal component in F.C.C. § 817.535, which some attorneys rarely use and if they use it, apparently don’t go far enough in using it. They “drop the ball” by NOT doing a C&E on the document called into question.  This is no different than a pro se homeowner going into court and waving a document around and calling it a fraudulent document.  Same results. The Court says, “Prove it!” … and you have no proof!  So piss off!

(3) They bring to light certain ethical violations. Imagine you’re a foreclosure mill lawyer who’s relying on the false and misrepresentative information contained within an Assignment of Mortgage (or even an Assignment of Deed of Trust, for those of you in non-judicial states that have sought to litigate a matter to stop a foreclosure), and you (a.) failed to exercise due diligence in vetting your evidence; (b.) were purposefully involved in the creation of the fraudulent document; and (c.) new or should have known that the information you proffered to the Court would result in a statutory violation.  There are individual Bar Rules in every State that call out this type of behavior.  These Rules fall under the section labeled “Misconduct”.  On occasion, State Bar Associations and Courts across America have to deal with such matters; however, foreclosure cases are particularly egregious in nature because the ethical violations appear to arise out of statutory violations being promulgated on the Court.

(4) They require a determination as to their validity of the document in question.  In the Hillsborough County matter, HSBC had every opportunity to respond, yet didn’t.  When you look at the C&E’s allegations there, HSBC employees could have been facing felony UPL charges.  Duh!  It’s no wonder they didn’t show up.  The good ‘ol boy network on occasion does “circle the wagons” to protect its own practitioners.  I gotta give ’em credit for their somewhat misplaced allegiance.  They pick and choose who they want to prosecute.  Obviously, the several HSBC employees aren’t in jail, so they’ll keep manufacturing phony documents (like every other mortgage loan servicer has done since they were told not to in 2012).

(5) They require a definitive action by the Court.  When presented with the facts, the judge in the Hillsborough County matter cancelled the document and ordered it expunged from the real property records.  That expungement was not detected by the foreclosure mill law firm.  That expungement created further triable issues of fact.  That expungement, in of itself, created a statutory violation.  That expungement further convoluted the chain of title, impairing that property’s vendibility.

(6) They are the “backbone” of any quiet title action.  Once eliminated, assignments and other documents set the basis for the complaint or counterclaim sounding in quiet title because the “obstacle” that the bank has to contend with is an illicit document, shown to be fraudulent, or in the alternative, proven to be fraudulent, with expert witness trial testimony from an attorney to back it up in subsequent cases.  This posits a very serious scenario for the foreclosure mill law firm.  It posits an even more of an issue for any judge hearing the subsequent quiet title action, because the same unclean hands that created and/or relied on the phony document that was cancelled and expunged through the C&E have now come home to roost.

As long as the homeowners are in a position to control the outcome of their cases, the C&E may become a vital tool to measurably determine the success or failure of their destinies.  Sadly, as vigorous of a defense that any foreclosure defense attorney could throw at the other side, especially in this matter, the C&E wasn’t part of it.  Without a basis in finality, how then can “the system of things” work to impose sanctions on the real violators and unseat judges for agreeing with them?

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