Tag Archives: U. S. Bank v Harpster

Foreclosure and your civil rights: A judge rules against you in spite of questionable land record documents … what to do next? (PART II)

(OP-ED) — This overview of cases involving civil rights abuses are the author’s opinions based on his legal research and are for educational purposes only and should not constitute any rendering of legal advice or seek to draw any conclusions of law. This is the second discussion of three parts.

THE RULES OF THE GAME HAVE BEEN CHANGED

The issue of police brutality all boils down to the issue of perception of what law enforcement stands for … from both sides of the coin. When police make an arrest, they do so based on material facts surrounding probable cause. The behavior and demeanor of the accused and their right to justice is largely determined by the answers they give and the way they react to questioning by the arresting officers. We spend an inordinate amount of time watching television, where police officers are displayed as being the saviors against the wicked. Yet, in order for a criminal case to proceed, the evidence has to stack up against the accused. The evidence cannot be controverted or subverted with lies and deceit.

“We have repeatedly held, therefore, that an officer violates the Fourth Amendment by omission only if ‘it would have been clear to a reasonable officer that the omitted fact was material to the probable-cause determination. A warrant request violates the Fourth Amendment if the requesting officer knowingly, intentionally, or with reckless disregard for the truth, makes false statements in requesting the warrant and the false statements were necessary to the determination that a warrant should issue.’”

— Cited in Rainsberger v. Benner, 7th App. Cir. No. 17-2521 (Jan. 15, 2019)

And what does this have to do with civil rights, you ask yourself?

Because the Rainsberger case turned on the evidence, when it was discovered that the detective investigating the case (Benner) omitted exculpatory evidence and fabricated evidence wherein the probable cause affidavit was riddled with lies, undercut with the omissions that would have kept Rainsberger from being arrested in the first place … the outcome was that Detective Benner’s sovereign immunity privileges were stripped away by the Court because of his actions. That’s how this argument relates to foreclosures when brought into the civil realm.

The entire foreclosure scenario also deals with material fact, which is why the author brought the arguments within the Rainsberger case into this discussion. When material facts are distorted, manufactured or omitted, causing the homeowner to be unfairly prosecuted as to his right to be secure in his “persons and papers” as guaranteed under the Constitution, someone must be held accountable.

Since the 2008 financial collapse, numerous discoveries have been disclosed to the consuming public of deceitful acts committed by the banks and their servicers and third-party document mills. Unfortunately, with the changing of the rules in the way the “game is played”, moving cases to federal court have been reformed to the point that simply stating that “a person created a phony document used to steal my house” just doesn’t work anymore with the Supreme Court rulings in the Twombly and Iqbal cases. The author has included the following research for your education and understanding, as having proper knowledge of what to expect on the federal level, which should be put in the forefront in any anticipated civil rights actions that follow a foreclosure:

WITHOUT FORETHOUGHT: SUE! SUE! SUE!

It is problematic that over 90% of Americans do not understand their system of laws. In fact, criminals understand the legal system better than their enfranchised counterparts. When faced with legal action, the defendant homeowner either becomes despondent or angry. There is no in between.

The first objective is to lash out against every person or idea that contradicts one’s belief system, as flawed as it may be. The “entitled” believe they should stay in the house for free … that all of the foreclosure accusations are really the bank’s fault … yet the borrower obligated himself when he signed the mortgage documents, thus, creating a legal “can of worms” for himself. The finality of truth brings with it a reality check.

All semblance of logic goes right out the window in favor of emotion. This is one major reason this author created the Clouded Titles website and wrote the book by the same name back in 2009-2010 (officially released in December of 2010). In order to get in this game and play it well, emotion must be replaced with legal logic and right thinking.

If you’re like most Americans, you place blame on others for your own shortcomings. Shortcomings however do not replace mistakes. But what if you’ve been blindsided with facts you know not to be true? How do you cope then? Most Americans would let their emotions “out of check” upon realizing that the banks messed up their own paperwork and that now they (the homeowners) are paying for it!

CHAINS OF TITLE TELL STORIES … STORIES THAT DON’T LIE!

Without a doubt, the author’s previous PART I post disclosed that two independent examinations of the land records in Texas and Florida demonstrated the rampant use of false documents, one of which came to light in the U.S. Bank, N.A. v. Harpster case in Florida:

And this is not the only case either. In another Florida case, the bank’s attorneys came into court with not one but three different versions of what they claimed was the “new and improved” promissory note:

And on the witness stand, in another Florida case, Erica A. Johnson-Seck admitted to be a “robosigner”:

And the foregoing case found its way into a New York State foreclosure decision!

Sadly, a lot of homeowners run to bankruptcy court, thinking they can stave off a foreclosure. All this does is kill their credit scores to the tune of 450 points for up to 10 years! Even the federal Office of the Comptroller of the Currency calls bankruptcy “a stall tactic”. But what happens when the bank runs into bankruptcy court and lies about its “position” in the chain of title:

STEALING PEOPLES’ HOMES FOR FUN AND PROFIT!

The foregoing headline was spouted by a foreclosure defense attorney in Texas during a discussion of a workshop he attended that was held by foreclosure mill attorneys. One of the attendees, whose name repeatedly surfaced in the Williamson County, Texas Real Property Records Audit, Stephen C. Porter, appeared nervous because after the audit was released, he was exposed to the world as a “robosigning attorney”. This is where things get dicey for Mr. Porter, because this author looked up Mr. Porter’s Texas Deed of Trust and compared the signatures of the robosigned documents to those of Mr. Porter’s own mortgage note and they were unbelievably different from each other. In fact, it appeared as if the signatures may have been put there by his notary!

All of this of course, leads up to the discussion of the intent to defraud … the homeowner, the land records and the judge. This author believes that all foreclosure victims deserve their rights to due process and that any “officer” of the court, which an attorney is, should lose their “sovereign immunity” if they omit, lie or cheat their way through a foreclosure and steal someone’s homes using false documents which they themselves may have had a hand in!

It’s just that when homeowners win, they become like electricity, seeking the path of least resistance and crawling back into their comfort zone. They have no interest in follow-through to see that the party or parties creating the phony documents, which still continue to litter their chain of title like a hooker with AIDS, are brought to justice.

The time to attack these phony documents is BEFORE the foreclosure starts, not AFTER! In the Harpster case, the attorney at least had the gumption to research the assignment and talk to the bonding agent and obtain an affidavit which stated the notary did not have a valid commission at the time David J. Stern’s own secretary (Cheryl Samons) executed the assignment.

ALL IS NOT LOST IF YOU CHOOSE FOLLOW-THROUGH … WIN OR LOSE!

In a recent foreclosure case decided in a Mississippi Chancery Court, the judge, who is covered by the State’s risk pool as to her liability, gave the defendant homeowner 7-1/2 minutes to present his case and despite the best evidence presented in that amount of time by the homeowner:

  1. The judge decided he’d had enough time because (as she previously announced to the court) the judge had to leave to go to her daughter’s volleyball game;
  2. After making her ruling, the judge commented that it must be rough “looking through rose-colored glasses, having lived in a $274,000 home for free for over 5 years.” This clearly indicates bias;
  3. The other side’s attorney’s complaint was deficient, partly due to mismarked and improper exhibits that the judge refused to allow to be stricken from the record when objected to; and
  4. Given the judge’s social calendar, it’s obvious she cared more about not being in court versus simply making snide remarks when the evidence presented supported the case actually going to trial.

This is where the system of things HAS TO “kick into high gear”.

After seeing and hearing the results of this case … and here goes the “if it was me” diatribe, the author would:

  1. File a complaint with the Mississippi Judicial Review Board against the judge.
  2. File bar complaints against the three attorneys who “touched” the case, because they inadvertently and purposefully omitted evidence which would have pointed a finger directly at law firm involvement in the manufacture of an assignment used to give the plaintiff (LSF9) standing.
  3. File a Motion for Reconsideration in a timely manner (10 days), citing those things that the judge failed to take into account before making her decision (all administrative appeals and alternative moves must be taken before proceeding to filing a State Tort Claims Act action).
  4. The timetable for the due process violation (under the McDonough v. Smith case), according to the U.S. Supreme Court decision, begins to run when the final adjudication has taken place.

Could the homeowner have won his case (or in the alternative got his matter set for trial) had he retained counsel to defend his home? Maybe. That is a story for another day because it involves unwrapping the mindset of why homeowners (and the public at large) don’t trust attorneys.

There is some room for argument here that the damage would actually occur when the home is sold and the homeowner is evicted, but my non-lawyer take here is that the judge’s ruling set the clock in motion because it represents a final decision for which other actions (eviction) could follow.

AS TO THE JUSTICE SYSTEM, JUDGES SHOULD PAY FOR MAKING BAD DECISIONS RESULTING IN CIVIL RIGHTS VIOLATIONS!

Attorneys have errors and omissions policies. Robosigners are supposed to be bonded and have errors and omissions insurance naming them as a “covered party” in order to be a robosigner for MERS. Judges have bonds. Some judges have bonds with their own respective counties. Other state’s judges are paid by the state to be a judge, which means the State’s own “risk pool” (a big pile of money which pays out damages for provable civil rights violations) is ripe for the picking. Those who have the fortitude to file a 42 USC § 1983/1985 action may have the opportunity to realize justice when it’s used to get an attorney disbarred, get a document manufacturer prosecuted or get a judge tossed off the bench for aiding and abetting felony perjury.

The proof must come “in the pudding”. One cannot simply wave an alleged phony document around in front of the judge without implicating the parties that were involved in creating it. Justice is never served unless you can reach into the pudding, the likes of the Harpster case or better, and bring up the evidence required to show you were deprived of your due process rights by the Court and its officers. In the Harpster case, the judge who ruled in favor of the homeowner (Hon. Lynn Tepper, the author believes) was driven or “persuaded” to leave the bench by the political judicial hierarchy, because she was a fair judge and recognized fraud on the court for what it was. This judge did not simply take the bank’s word for anything, given the proof that was provided … stuff that this author has been sharing from an investigative standpoint for years.

This shows you how much “control” the banks have over the court systems in this country and why it’s likely a judge may be the culpable party in siding with lies by the attorney for the servicer. No one likes a liar. Liars deserve to go to jail if they participate in the thievery of stealing someone’s home using evidence that is manufactured or conveniently altered or omitted in what appears to be the commission of a crime.

And THAT is where the criminal justice system intertwines with the civil justice system. And if anything, police brutality should be the least of our concerns when “the system of things” is tainted with bias.

And this is exactly the reason WHY the author elected to do an online Foreclosure Defense 101 Workshop … because right thinking is called for here.

Stay tuned for PART III

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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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