Balancing the Scales of Justice for Pro Se Homeowners

Posts by Simonee

Max Gardner’s Top Tips for Fake Mortgage Documents

Posted by on Jun 2, 2012 | 2 comments

Still considering pursuing the criminal aspects of  your wrongful fraudclosure? Here is one of the country’s leading homeowner advocates providing some great tips on how to spot the “fake” documents being used in fraudclosures.

Written by: Oliver Max Gardner III

1. The Mortgage or Deed of Trust is assigned from the Originator directly to the Trustee for the Securitized Trust.

2. The Mortgage or Deed of Trust is assigned months and sometimes years after the date of the origination of the underlying mortgage note.

3. The Mortgage or Deed of Trust is assigned from the initial aggregator directly to the Securitized Trust with no assignments to the Depositor or the Sponsor for the Trust.

4. The Mortgage or Deed of Trust is executed, dated or assigned in a manner inconsistent with the mandatory governing rules of Section 2.01 of the Pooling and Servicing Agreement.

5. The assignment of the Mortgage or Deed of Trust is executed by a legal entity that was no longer in existence on the date the document was executed.

6. The assignment of the mortgage or Deed of Trust is executed by an entity whose name is different than the entity named in the original document (i.e., National City Bank Corporation in lieu of ABC Corporation as a division of National City Bank).

7. The assignment was executed by a party pursuant to a Power of Attorney but no Power of Attorney is attached to the instrument or filed with the instrument or otherwise recorded with local land registry.

8. The mortgage note is allegedly transferred in a single document along with the Mortgage or Deed of Trust (i.e., “Assignment of the Note and Mortgage”). You cannot “assign” a mortgage note. You can only “negotiate” a mortgage note under Article 3 of the UCC.

9. The assignment is executed by a party who claims to be an “attorney in fact” for the assignor.

10. The assignment is notarized by a notary in Dakota County, Minnesota.

11. The assignment is notarized by a notary in Hennepin County, Minnesota.

12. The assignment is notarized by a notary in Duval County, Florida.

13. The assignment is executed by an officer or secretary of MERS.

14. The assignment is notarized by a secretary or paralegal employed by the attorney for the mortgage servicer.

15. The assignment is executed or notarized by an employee of MR Default Services, Promiss Solutions LLC, National Default Exchange, LP, LOGS Financial Services, or some similar third-party.

16. The endorsement on the note is actually on an allonge affixed to the note. In most states, an allonge cannot be used if there is a sufficient amount of room at the “foot” or the “bottom” of the original note for the endorsement.

17. The allonge is not “permanently” affixed to the original note. The term permanent excludes the use of staples and tape and as a result you must use a sold fastener such as glue. Allonges are commonly referred to “in the business” as “tear-off fraud papers.”

18. The note proffered in evidence is not the original but a copy of the “certified copy” provided to the debtors at the closing.

19. The note is endorsed in blank with no transfer and delivery receipts. It is fine to endorse a note in blank, in which case it becomes “bearer” paper under the UCC. However, in order to prove a true sale from the Sponsor to the Depositor you must have written delivery and transfer receipts and proof of pay outs and pay in transactions.

20. The note proffered in evidence is not endorsed at the foot of the note or on an affixed allonge.

21. The assignment of the mortgage or deed of trust post-dates the filing of the court pleading.

22. The assignment of the mortgage or deed of trust is executed after the filing of the court pleadings but claims to be “legally effective” before the filing. For example, the deed of trust is assigned on June 1, 2009, with an effective date of May 1, 2007.

23. The parties who executed the assignment and who notarized the signature are in fact the same parties.

24. The signor states that he or she is an “agent” for the executing entity.

25. The signor states that he or she is an “attorney in fact” for the executing entity.

26. The signor states that he or she is an employee of the executing entity but claims to have custody and control of the records of the entity.

27. The signor of the document makes statements about the status of the mortgage debt based on his or her review of the “records of the plaintiff” or the “records of the moving party.”

28. The proponent of the original note files an Affidavit of Lost Note.

29. The signor claims that the allegations in the court pleading are correct but the assignment of the mortgage and/or delivery and transfer of the note occurs after the law suit or the motion for relief from stay was filed.

30. One or more of the operative documents in the case is signed by one of the attorneys for the mortgage servicer.

31. The default payment history filed in the case is prepared by the attorney for the mortgage servicer or a member of his or her staff.

32. The affidavit filed in support of legal fees is not signed by an attorney with the firm involved in the case.

33. The name of one or more of the signors is stamped on the document.

34. The document is a form with standard “fill-in-the-blanks” for names and amounts.

35. The signature of one or more parties on the document is not legible and looks like something a three year old might have done.

36. The document is dated and signed years before the document is actually filed with the register of real estate documents or deeds or mortgages.

37. The proffered document has the word C O P Y stamped on or embedded in the document.

38. The document is executed by a notary in Denton County, Texas.

39. The document is executed by a notary in Collin County, Texas.

40. The document includes a legend “Hold for” a named law firm after recording.

41. The document was drafted by a law firm representing the mortgage servicer in the pending case.

42. The document includes any type of bar code that was not added by the local register or filing clerk for such instruments.

43. The document includes a reference to an “instrument number.”

44. The document includes a reference to a “form number.”

45. The document does not include any reference to a Master Document Custodian.

46. The document is not authenticated by any officer or authorized agent of a Master Document Custodian.

47. The paragraph numbers on the document are not consistent (the last paragraph on page one is 7 and the first paragraph on page two starts with number 9).

48. The endorsement of the note is not at the “foot” or “bottom” of the last page of the note. For example, a few states allow an endorsement on the back of the last page of the note but the majority requires it at the foot of the note.

49. The document purports to assign the mortgage or the deed of trust to the Trustee for the Securitized Trust before the Trust was registered with the Securities and Exchange Commission. This type of registration is normally referred to as a “shelf registration.”

50. The document purports to transfer the note to the Trustee for the Securitized Trust before the date the Trust provides for the origination date of instruments in the Trust. The Prospectus, the Prospectus Supplement and the Pooling and Servicing Agreement will clearly state that the pool of notes includes those originated between date X and date Y.

51. The document purports to transfer the note to the Trustee for the Securitized Trust after the cut-off date for the creating of such instruments for the Trust.

52. The origination date on the mortgage note is not within the origination and cut-off dates provided for the by terms of the Pooling and Servicing Agreement.

53. The “Affidavit of a Lost Note” is not filed by the Master Document Custodian for the Trust but by the Servicer or some other third-party.

54. The document is signed by a “bank officer” without any designation of the office held by the said officer.

55. The affidavit includes the following language on the bottom of each page: “This is an attempt to collect a debt. Any information obtained will be used for that purpose.”

56. The document is signed by a person who identifies himself or herself as a “media supervisor” for the proponent.

57. The document is signed by a person who identifies himself or herself as a “media coordinator” for the proponent.

58. The document is signed by a person who identifies himself or herself as a “legal coordinator” for the movant.

59. The date of the signature on the document and the date the signature was notarized are not the same.

60. The parties who signed the assignment and who notarized the signature are located in different states or counties.

61. The transferor and the transferee have the same physical address including the same street and post office box numbers.

62. The assignor and the assignee have the same physical address including the same street and post office box numbers.

63. The signor of the document states that he or she is acting “solely as nominee” for some other party.

64. The document refers to a power of attorney but no power of attorney is attached.

65. The document bears the following legend: “This is not a certified copy.”

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Not sure what world Suzanne Uhland lives in but it certainly isn’t ours!

Posted by on May 28, 2012 | 1 comment

On Wednesday May 23rd New Century borrowers faced off against Suzanne Uhland of O’Melveny and Myers in the New Century Bankruptcy proceedings.  In a classic game of “I don’t know” Uhland patiently answered questions from the borrowers in regards to how New Century and its counsel (Uhland) put together the constructive bar date notice program.  Uhland, famous for her role in the Blue Sonic debacle where Uhland subverted the claim of VIA Investments in favor of other creditors so Uhland could “curry favor for referral business”, demonstrated why she was selected by the likes of the New Century executives for putting together the bar date notice program.

The Global Bar Date Notice

In business bankruptcy proceedings the United States Supreme Court found, in Mullane v Central Heating, that it is not enough to know a bankruptcy proceeding has proceeded, creditors are entitled to actual (or constructive) notice of the Bar Date.  New Century, while claiming that borrowers were seen as sources of income and not potential creditors, designed the Constructive Bar Date Notice to include a 1 day placement of an ad in the Wall Street Journal (in the legal font size of 6pt)  which is a national publication to cover all unknown creditors, and “any such” local newspapers or publications as the Debtors so fit.  This of course was the only local ad the Debtors deemed appropriate – a 1 day ad placement in the Orange County Register.

Parsing the words of the order by seizing upon the words of “any such”  – it is clear that Uhland set up the bar date notice to notice as few of the consumers harmed by New Century’s predatory lending acts as possible.   She did what New Century paid her to do – she earned the five million in fees paid to OMM – and what she did wasn’t illegal, just sleazy and in my book, unethical.  But the law allows for unethical sleazy behavior; Uhland and the New Century global notice is proof of that.

Uhland also testified that the estate could not afford more than $12,000 dollars to invest in the Constructive Notice Bar Date – ergo why only two papers.  The estate could afford fees of five million dollars to her firm, but not a measly 100,000 to put together an ethical, fair notice program.

When asked if she felt that borrowers who were subject to fraudulent appraisals from New Century should be considered as potential creditors, Ulhand testified she could not imagine a “world in which a lender would use a fraudulent appraisal” – and she said it with a straight face.  Clearly she has not followed any of the Washington Mutual, Countrywide, or NEW CENTURY employee claims of using fraudulent appraisals.  Uhland is a real piece of work and now ranks at the top of my Sleazy Attorneys list.  Her and Treder could be real friends.

The Disgusting slimy truth that the law (and borrowers) must live with

While Judge Carey has not issued his ruling on the Global Constructive Bar Date Notice, it is clear that he is in quandary in that the bankruptcy proceedings must have“finality” and come to a conclusion; while at the same time I think he recognizes New Century and Ulhand’s Constructive Bar Date Notice was sleazy.  I don’t know what his final ruling will be but I am not hopeful that he will open up the “floodgates” to allow aggrieved homeowners to submit claims.  The New Century executives will get away with yet again, victimizing homeowners they preyed on.   However, I do not believe that Carey will  entirely close the door on an individual basis and that he will, from both a position of equitable consideration and within the law, make room for those borrowers who can prove they were not noticed properly.   Only his final ruling will tell the story but it is clear from the incredibly patient, compassionate approach he took with the evidentiary hearing, he is a Judge with a conscious that is interested in doing the right thing, within the confines of the law.

Jacobs and crew (Hahn Hessen) did what any self respecting law firm and Liquidating Trustee would do

As much as I want to really dislike this crew I find it impossible.  With all the law firms I have dealt with through this debacle called “homeownership”  –  I find the Hahn Hessen group to be professional and frustratingly likable.  The evidentiary hearing crystallized for me some issues I had not considered nor understood.  Jacobs is in the unenviable position that the borrowers are – none of us has any individual with “personal knowledge” of the dealings of New Century; we all must contend with what story the debtors “books and records” tell – or doesn’t tell.

Jacob’s role is to liquidate the assets of the debtors and disburse the proceeds to the recognized creditors of the estate.  While most of us mistakenly believe he is “defending” New Century – the reality is he is defending the rights of those creditors who have been recognized by the Court, not New Century.  I suspect deep down he finds New Century exectuives to be a  bit of a disgusting lot as those executive clearly do not share the core values that Jacobs has demonstrated through out his career.  Jacobs takes his position seriously and zealously protects the interest of the creditors.  For those of us outside of this recognized “universe of creditors” – we are frustrated and angry at his denial of our entrance; knowing full well if we were inside the universe we would be praising him for doing such a good job of protecting our piece of the leftover pie.

Jacobs and Hahn Hessen are doing what they are supposed to do, protect the estate as per the confirmation plan approved by the Court.  To not do so what be improper and probably land them into some kind of legal trouble for ignoring the plan as approved by the Court.  Jacobs has no room to grant payments based on equitable restitution – if you want a piece of the pie you will have to prove you are entitled to that piece; and I suspect once you do (if you do), Jacobs with his bow tie, along with the Hahn Hessen team will work just as diligently to protect your interest in the left over pie as they have for the existing, approved creditors.

Remaining Borrowers

The case of New Century is not closed, though it clearly is nearing a final resolution.  There are but a handful of homeowners fighting for some form of restitution for being placed into the “ticking time bombs of financial destruction” that new Century sold them.  The seriousness in which each homeowner takes their claim varies – some continue to sidestep their responsibility to appear before Judge Carey with a variety of issues – ranging from “not feeling well” to “abscessed tooth” excuses to an honest explanation that they are too broke to travel to Delaware.  Carey cannot judge the borrowers creditability via the phone; Carey has always maintained that any homeowner seeking an entrance into Jacob’s protection will have to appear before the Court in person.

As pro se’s most of us are gulping from the fire hose to understand the law, rules, and procedures – and Carey has given Pro Se’s a lot of leeway in staking their claims but at some point he will be forced to say “Enough!”  – get it together and do what the law requires or face a complete denial of your claim.

Sitting there in the Courtroom, listening to the myriad of excuses for defying the Judge’s orders was painful.   As a pro se I recognize  the major handicap all pro ses work under, and having a Judge willing to work with our limited knowledge has been invaluable; for myself there is no way in which I would intentionally raise his ire by outright defying his orders.  To me that is an unnecessary battle – we all need the Judge on our side as much as possible and disrespecting his position as the Judge doesn’t seem like a wise and prudent strategy.  I am truly confounded by those who think they can continue down this path of defiance and suffer no consequences for doing so.   The end result will be a deafening silence in which the borrower loses the only ally they may possibly have – the Judge.

The End Has Yet To Be Written

The Missal Report is a very telling document.  Michael Missal did a root cause analysis of New Century’s filing false financial statements with the SEC; his report details the how and the why.  It is in the why that many homeowners can begin to put together the puzzle of predatory lending practices that led to their foreclosure.  Whether they seek to go after New Century through the bankruptcy or to go after investors who most likely have no holder in due course protections – downloading and reading the report is an invaluable insight into the sleazy, greedy world of Brad Morrice, Monica McCarthy and the other executives who profited so handsomely from deceiving and victimizing homeowners.

In the coming weeks there will be more motions written and Carey will soon issue his ruling as to the Global Bar Date Notice along with orders on the individual claimants.  As I continue this legal battle I will keep you up to date and let you know how my claim is progressing.  Until then…

KEEP UP THE FIGHT!

Simonee

 

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Attorney General Settlement Approved by Courts – sign up for webinar to learn more!

Posted by on May 7, 2012 | 2 comments

Thanks to Charles Cox for sharing the below!

 

The Attorney General Settlement has now been approved by the court, and regardless of whether we like the terms, the process, or lack thereof, it is done.  There have been many questions regarding the terms of the settlement, and how consumers can benefit from it.  In order to answer the most common questions posed and give you guidance on how to submit a credible claim under the new rules, we are offering a comprehensive webinar to help you understand how to make the settlement work for you.  We will review the settlement terms relating to foreclosures, loan modifications and shorts sales, discuss tactics and strategies that will help you accomplish your goal and finally, provide demand sample letters that you can submit to let the bank know that you are aware of your rights.   The webinar will conclude with a round table discussion including a question and answer session.  To accomodate all, the webinar will be offered on May 12, 2012 at 12:00 PDT and again on June 2, 2012 at 12:00 PDT.  If you attend on May 12, 2012 and would like to repeat the seminar, you may do so on June 2, 2012 without any additional charge.  Sign up now as spaces are limited!

Learn more at www.legallinknews.com

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Using a Criminal Investigation to Challenge your Foreclosure

Posted by on Apr 12, 2012 | 17 comments

There has been a lot of talk about the deceptive tactics being committed by the banks – manufacturing and filing false documents in public records, forgery, notaries with expired commissions – these are not simple meaningless violations, they are criminal violations punishable by fines and jail time.  Most homeowners look at these violations and ask themselves, why isn’t someone pursuing these crimes?  And how do I have the court consider these crimes when challenging the foreclosure that is being completed based on these fraudulent documents?  Calls to the FBI, IRS, District Attorney, and State Attorney General often leave you wondering if they have taken you seriously and if they did, will they pursue these crimes?  And if they are pursing them, how do you tell the Court that there are criminal violations involved in your foreclosure?  Well, there is a way for you to push this in front of the court and demand that action be taken.

Every state has a criminal penal code.  For example, in California Criminal Penal Code § 134 states –

Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding or inquiry whatever, authorized by law is guilty of felony

In Texas, the Texas Business & Commerce Code § 36.27 states –

CRIMINAL PENALTY–FRAUDULENT FILING.  (a) A person may not knowingly or intentionally sign and present for filing or cause to be presented for filing a document authorized or required to be filed under this chapter if the document:
                (1)  indicates that the person signing the document has the authority to act on behalf of the entity for which the document is presented and the person does not have that authority;
                (2)  contains a material false statement;  or                                
                (3)  is forged.                                                              
(b)  A person who violates Subsection (a) of this section commits an offense.  An offense under this subsection is punishable as if it were an offense under Section 37.10, Penal Code.

A few more of the criminal acts that are common in Texas’ statutes.  Keep in mind that this is in no way a complete list nor are all of these acts listed found to occur in all mortgages or foreclosures.

Felonies:
Sec. 32.46.  SECURING EXECUTION OF DOCUMENT BY DECEPTION – 1st degree
Sec. 37.10.  TAMPERING WITH GOVERNMENTAL RECORD – 2nd &/or 3rd degree
Sec. 71.203. CRIMINAL PENALTY: FRAUDULENT FILING – 2nd &/or 3rd degree
Misdemeanors:
51.901.          FRAUDULENT DOCUMENT OR INSTRUMENTATION – Class A

The key to getting the District Attorney, FBI, State Attorney General, the Court and the bank pursing the foreclosure to take you seriously is in providing these entities with competent evidence that is irrefutable[1].  Who will you take more seriously – a homeowner fighting the foreclosure or an Ex CIA agent with  experience investigating money laundering or a seasoned experienced Sheriff’s Deputy, who on his off duty time did a private investigation that resulted in them finding these criminal violations?  What would the conversation be like if you sent over a report to opposing counsel, with a sworn affidavit from one of these professionals, detailing the criminal violations they found in your title records that opposing counsel’s client filed?  What would your County Recorder do?  Would they not be obligated to expunge those records and as well as notify the District Attorney of the criminal violations?

Steve Skidmore, COO of Endless Fraud Detection Services Corporation shared some very enlightening strategies homeowners can use to challenge their foreclosure and send the bank packing.  Skidmore works with a group of private investigators that review title records on behalf of homeowners – they not only look at the document to see what is fraudulent on the face of the document, they actually investigate the people signing the document.  Through background checks, notary commission verifications, signature comparisons, Steve’s group compiles a “Public Records Investigation” that details where the fraud is, what possible criminal violations there are, and they provide a sworn affidavit testifying to the truth of the information along with the investigator’s resume’ within their report.  (See here for  EFDS Sample Dcuments).  The individuals signing the reports have a varied background ranging from ex CIA to off duty sheriffs’ deputies, whose credibly is beyond reproach and whose experience is all about catching criminals. 

Endless Fraud Detection provides their clients with competent evidence that has been gathered by an unbiased 3rd party.  This means that the evidence presented in the report is admissible in a court of law, and cannot be ignored by the District Attorney, County Recorder, the Judge and any other legal professional you decide to blast it out to.

COMPETENT EVIDENCE

If you are just starting this journey; or have already been fighting with the bank in court, it is time to up the game and put the bank on the defense.  The first step in upping the pressure is making sure that your evidence is competent evidence that cannot be ignored and WILL be entered into evidence.

To have evidence accepted as competent you have to be able to provide the Court with a qualified witness who can testify to its identity, mode of preparation, and if it was made in the regular course of business at or near the time of the act, condition, event so that the Court may justify its admission.  That means taking a photocopy of a document, or even a certified copy of a public document is subject to “challenges” as hearsay without appropriate testimony.  (This cuts both ways by the way; just as your documents may be challenged you may also challenge the banks documents).

Your challenge is not just the contents of the documents itself (the bank has to prove the validity of the contents), your challenge is also the criminal violation of recording the false document.  If the individual signing it has signed as the VP of One Bank but the investigation shows they are actually an employee of the entity they are assigning the document to – and the asset is over 100k – that is a criminal violation.  (For example, in this Miss as Washington Mutual  where Anita Antonelli signs as a VP of Washington Mutual assigning the asset over to Wells Fargo; a background check verified that Antonelli is NOT and has NEVER been an employee of Washington Mutual, she is in fact, an employee of Wells Fargo).  If an off duty sheriff details to the Court that in his private investigation of the document he discovered these facts, do you think the Court will take it seriously?  Think your District Attorney will take it seriously?

NOT ALL PRIVATE INVESTIGATORS ARE THE SAME

I grew up watching Magnum PI and reading Sherlock Holmes; today I watch Kalinda Sharma of the Good Wife with fascination as she conducts her private investigations, digging up nuggets of information for the cases the attorneys are working on.  And yes, Endless Fraud Detections are similar to these private investigators – except their focus is on the paper trail the banks have created rather than whether Mr. White with the candlestick in the library did the deed.

42 states have licensing requirements for private investigators (See here for your states requirements) which typically require the individual have a background of investigations with 1,000’s of hours experience.  Having a license private investigator conduct the fraud investigation is key to having the report accepted as competent evidence.  Without the license the report will most likely be considered a lot of allegations put together by a disgruntled homeowner who is losing their home (or has lost).

Endless Fraud Detection Services is a TEXAS STATE LICENSED PRIVATE INVESTIGATION COMPANY [LICENSE # A-17660] and conducts investigations in all 50 states.

NOTE: Forensic Mortgage Audits, and Forensic Securitization Audits could easily be defined as “private investigations” pursuant to some state’s statutory definitions. In addition, many claim to be “certified” professionals with these audits and were never certified by State Licensed Private Investigation Academies.  This may be why these audits are not getting the attention they deserve in the courts.

 WHAT DO I DO WITH THE REPORT?

 Meet with a Criminal Attorney and have him review the report; depending on the seriousness of the criminal violations identified, the attorney can advise you of the best course of action. You may also want your attorney in your civil (wrongful foreclosure, bankruptcy proceeding, etc.) consider having an ex parte hearing on the validity of the lien instruments filed in support of the bank’s claim. And of course, at some point you want to reach out to the County Recorder, District Attorney, State Attorney General, and the FBI. When you present the report to the opposing counsel needs to be part of your strategy – so when you give them a copy of the report is wholly dependent on your legal strategy to stop the bank from stealing your property through fraudulent documents – you may use it as part of a settlement discussion, or simply go the scorched earth route and bury the bank through whatever legal means you can. Whatever you do with it, be strategic and thoughtful so you end up achieving your goals, and that will start with you discussing the report with your attorney.

Ultimately your goal may be to get the criminal charges filed against the bank; once you get the criminal charges proven you can use the criminal charges (which should result in fines and jail time for someone) as a basis for a civil lawsuit for damages you suffered as a result of the banks (or its employees) criminal acts.

NOT FOR THE FAINTHEARTED

This is hard ball.  Getting tossed out of your home is hardball; so serve back – hard and with competent evidence that puts the bank on defense.   The report could generate some settlement discussions  and help you settle this before you have to pursue the criminal charges;  encourage your attorney to get aggressive in pursuing the criminal aspects of your fraudulent foreclosure.

ENDLESS FRAUD DETECTION SERVICES

If you are serious about challenging your foreclosure, and you KNOW that there has been hanky panky with the documents, then it is time to show the bank just how serious you are.  EFD will investigate every document filed in your county records – that includes Gathering public records (optionally the homeowner can provide a “certified” copy of “everything” on record) background checks on the people signing (are they really in the position they have signed for?), validate notary commission, and deliver the report with a copy of the investigator’s resume’ and affidavit usually within 3 weeks depending on the complexity of the investigation all for a cost that is very affordable to an already financially strapped homeowner.

Once the investigation is completed you receive a report detailing the criminal violations, signed by a professional, licensed private investigator.   If you get to trial, you can make arrangements to have the PI deposed, under oath, to the Court.

And it doesn’t matter if you have your house or not; if you lost your house through the use of fraudulent documents the “statute of limitations”  it is very possible the statute of limitations will start tolling upon discovery of the fraud.  The report will be the discovery and very possibly is when the clock starts tolling.

Call 1-800-788-2196 today to discuss your foreclosure and getting a criminal investigation completed on your fraudulent foreclosure.  Thanks to Steve for sharing!

KEEP UP THE FIGHT!

Simonee

Simonee@infotofightforeclosure.com

Steve   Skidmore CCO
Endless Fraud Detection Services Corp.
A TEXAS STATE LICENSED PRIVATE INVESTIGATION
COMPANY [LICENSE # A-17660]
steve@endlessfrauddetection.com
(512) 761-1007


 

[1] Unquestionable, indisputable, undeniable, incontrovertible

 

 

 

 

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New Century’s Mere Gesture can’t Overcome that pesky Due Process

Posted by on Apr 12, 2012 | 1 comment

CORRECTION:  Brown v Seaman, the Court found that since the Debtor had placed ad in the local and “national editions of the New York Times, and the national edition was sold in her Philadelphia, the Debtor had met their Constructive Notice requirements.  It is important to note that Seaman’s, unlike New Century, placed ads in SEVERAL newspapers. Not just one national and one local.

During the bankruptcy, the debtor had published notice of the bar date in the New York Times, the Wall Street Journal, the Florida Times-Union, the Houston Chronicle and the St. Louis Post Dispatch. The Court held that this means of notice publication satisfied the due process clause since it was “in national publications and in newspapers of general circulation in areas where [the debtor] did business. . . .” Id. at 728 n. 2.

My apologies if I confused anyone.

New Century is paying its attorneys $100 to $300k MONTHLY to fight borrowers who are filing late in their bankruptcy.  Seems that the Constructive Notice issue is heating up and as pesky as the Trust may think “due process” rights are, all controlling case law shows that New Century’s “mere gesture” is a weak, weak argument.

When New Century launched its Constructive Notice Campaign the attorneys advised New Century that a ONE day placement in ONE national newspaper and ONE local paper would suffice.  Well, we shall find out after April 25, 2012.  After reading about 50 cases on due process I am really challenged with how Judge Carey can even began to contemplate letting  New Century’s constructive notice program be considered anything more than a mere gesture.

Starting with the cases quoted by New Century’s attorneys in their motion to have their Constructive Notice program sanctioned by the Court, the Trust references several cases as controlling case law in regards to the notification of the Bar Date.  All of these cases are distinguishable as those debtors in the cited cases acted beyond a “mere gesture” investing in programs that truly were designed to notice potential claimants.

For example, in Vancouver Health, the debtors quote, “that [a] bankrupt’s estate’s resources are limited and the bankruptcy court must use discretion in balancing [the interests of all creditors] when deciding how much to spend on notification” – however in Vancouver Health the debtors embarked on $4.5 million dollar global campaign to notify users of the Dalkon Shield of its potential harm, and THEN spent an additional 4 million (limit was  5 million) for the Bar Date Notification  itself.  This is significantly more than the paltry $12,000 the New Century debtors spent on their Constructive Bar Date Notification.  The debtors generated over 100 BILLION in loans…and all they could afford was $12,000 for the program – but can afford $100 to $300 THOUSAND dollars PER month to attorneys to fight borrowers.  Ummm…..yeah… can’t believe this will fly with any Appellate Court in the Country!

In Chemetron, the debtors published notification in both the Wall Street Journal and New York Times  as well as seven other local publications.  It is important to note that the majority of potential unknown claimants reside in or around a specific geographical area which were the targeted local publications.

In Best Products, the debtors published notification in the Wall Street Journal, New York Times, the Chicago Sun Times, the Los Angeles Times, and the Richmond- Times Dispatch as well as sent notification to 300,000 potential claimants.

In Gentry v Circuit City, Gentry was a former employee who sought to file a claim based on a class of claimants through a class action.  This is distinguishable from the case at bar as class action participants may go to the Wall Street Journal to seek information on the class action but here the borrowers are operating on an individual basis and would not seek sources  that report on class actions.

See Correction: In Brown, the debtors published notification in both the national and LOCAL editions of the Wall Street Journal – and in fact, in the Brown case it was the publication in the Local edition – NOT the national edition, that the Brown Court relied on in determining that Brown had received constructive notice from the Wall Street publication.

 In all of the cases New Century debtors have quoted, the publication efforts were significantly more than the mere gesture New Century put forth.  More on point would be to consider the Bar Date Notification efforts put for by other predatory lenders such as Washington Mutual.  In Washington Mutual the debtors ran notices (four and five times respectively) in the Wall Street Journal and New York Times, as well the Seattle and Seattle Post Intelligencer.  Washington Mutual had more than 13 ad placements – in comparison to New Century’s pitiful 2.

Now in desperation New Century has put together a listing of different news casts claiming somehow that also should be considered in their Constructive Notice program.  Small problem…most of the news casts were BEFORE the Court even knew the Bar Date.  So unless the Trust can submit some competent evidence that the newscasters were clairvoyant and divined the Bar Date – these news casts are wholly irrelevant.  Our Supreme Court has been very clear that it is not enough to know a company had started bankruptcy proceedings – the creditors needed to be informed of the actual Bar Date.  Period.

Between the damning Missal Report and its details on the “kick outs” and “scratch and dent” pools, and the lame 1 day ads placed by New Century – this situation is ripe for borrowers to throw a serious monkey wrench into the proceedings.  Stay tuned, oral arguments will be heard on April 25, 2012 in the Honorable Judge Carey’s Courtroom.

 

KEEP UP THE FIGHT!

Simonee

Simonee@infotofightforeclosure.com

 

 

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