Balancing the Scales of Justice for Pro Se Homeowners

Posts by Simonee

California Supreme Court Reverses Yvanova – Banks Cannot Act as Bounty Hunters!

Posted by on Feb 20, 2016 | 0 comments

California Supreme Court Reverses Yvanova – Banks Cannot Act as Bounty Hunters!

In what can only be determined as a decidedly, albeit professional, thump on the heads of California State and Federal Judges (trial and appellate), along with the banks, the California Supreme Court reminded all citizens, including the legal and banking communities, that the law is the law. In Yvanova v. New Century Mortgage, who is the debt owner is not a matter of controversy – either you own it or you don’t; either you can prove you own it or you can’t. (Yvanova, p.8) What you CANNOT do is foreclose on a borrower’s property if you cannot prove you own it; and a homeowner can challenge the foreclosing party’s claim to own it.

For the last eight or nine years the majority of judges in this state took it upon themselves to determine that if a borrower owed money to someone, anyone could foreclose; a decision the Supreme Court liken to making the banks “bounty hunters”. (See Yvanova Ruling, p.23). Specifically, the Supreme Court found the logic of “defendants[1]‘no-prejudice argument implies that anyone, even a stranger to the debt, could declare a default and order a trustee‘s sale—and the borrower would be left with no recourse because, after all, he or she owed the debt to someone, though not to the foreclosing entity. This would be an odd result indeed. (Reinagel, supra, 735 F.3d at p. 225.)

Over the course of the next several weeks, or months, this ruling will be sliced and diced, spun into all kinds of meanings as to what the Supreme Court actually meant as the banks and their ilk try to recover from this ruling. But what no one can deny, nor spin into something other than what it says, and that is simply – A homeowner who has been foreclosed on by one with no right to do so has suffered an injurious invasion of his or her legal rights at the foreclosing entity‘s hands. No more is required for standing
to sue. (Angelucci v. Century Supper Club, supra, 41 Cal.4th at p. 175.) (Yvanova, p.24).

State and Federal Judges in the State of California run with a “herd mentality” …or “pack mentality”. Independent legal thought is a rarity in our judicial community – exceptions can be identified in the lower and appellate court rulings in which the rulings were called “outlier” rulings – specifically Glaski v. Bank of America, 218 Cal. App. 4th 1079, 160 Cal. Rptr. 3d 449 (Ct. App. 2013). took a beating as both State and Federal judges rejected Glaski in favor of Jenkins v. JPMorgan Chase Bank, NA, 216 Cal. App. 4th 497, 156 Cal. Rptr. 3d 912 (Ct. App. 2013). – an illogical decision that really belied a bias or exceptionally lazy legal thinkers. The Fifth District Court of Appeals (Glaski) clearly looks to the law and relied on the law in determining that Glaski had standing and stated factual reasons as to why the partjudge1y foreclosing had no rights to do so.

This type of legal reasoning was found in In re Rivera, 517 B.R. 140 (B.A.P. 9th Cir. 2014) in which the BAP got a little closer to the truth of the issue. Specifically, Deutsche could not prove it owned the debt and in a Bankruptcy proceeding it didn’t matter what the instruments said about the beneficial interest in the security instrument, if you don’t own the debt you have no right to collect on it in a bankruptcy. Period. The BAP rejected Glaski, but in their defense, they did so because of the majority of California judges were refusing to follow Glaski, even noting in the oral arguments that California law had taken a “nonsensical turn” but there was nothing the BAP could do about California judges or law. All they could do was hold up the law in a bankruptcy proceeding…and that is simply, if you want to collect on a debt you better own it and be able to prove you own it.

This is a telling lesson. The majority were wrong about rescission – the United States Supreme Court set the majority straight (thought they still refuse to believe it) in Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790, 574 U.S., 190 L. Ed. 2d 650 (2015) earlier this year; now the California Supreme Court sets the majority straight with Yvanova. When the judges were so clearly wrong and we, the consumer defense legal teams, were so right, I am assuming, it may be tempting to gloat in pleadings and statements to the Courts about the arrogance and/or ignorance of the majority. I just caution you to remember that we still need these very same judges, whose arrogance and ignorance has received a decidedly dress down from the California Supreme Court, to apply the law. Whether the judges participated from ignorance, laziness or herd mentality, is no longer relevant (though should be kept in mind for further battles). Pleadings will require diplomacy affording the judges both respect, forgiveness and an opportunity to repair their reputations.

This has been a grueling 8 years of fighting over these foreclosures, a fight that now will increase tenfold because the reality is, the majority of these foreclosures were done illegally by parties that had no rights to do so.   And if your home was foreclosed on in the last five years, now is the time to seek restitution. There is a five year statute of limitations (that may also be equitably tolled) so don’t let the five SOL stop you from discussing your options with a foreclosure defense attorney.

To Richard Antognini, Kamala Harris and her staff, Mark Didak and the countless others that pitched in and supported this fight from behind the scenes, and very publically every day in trial courts across the state defending homeowners – congratulations on a job well done. May God continue to bless and honor the California Supreme Court’s work for the citizens of the State of California.   Stay tuned, we will be breaking down more of the interesting cites from the California Supreme Court in the days and weeks to come, as well as giving homeowners ideas of how to combat the inevitable, illogical spins the banks and their attorneys will be weaving. But for today….celebrate and celebrate big!

KEEP UP THE FIGHT!

Simonee

[1] Defendants are referencing the bank in the Reinagel matter.

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RIP Justice Scalia

Posted by on Feb 13, 2016 | 0 comments

RIP Justice Scalia

I was deeply sadden to read of Justice Antonin Scalia’s passing. He was a conservative justice that made no apologies for his conservative views and was a staunch supporter of the United States Constitution (and Bible). I think it is truly a blow to our U.S. Constitution and the rule of law in this country.   Where often we think of conservative’s as big business supporters, Judge Scalia believed the law was the great leveler; the one place where every person should be protected by the rights every citizen is entitled to under the US Constitution and our laws.

Noted for his ability to use piquant slang  (notably “jiggery-pokery” and “pure applesauce,” wonderfully quaint euphemisms for “bullshit”)[1] to get his point across, Justice Scalia   was undoubtedly one of the most entertaining legal writers of our time, if not in all of US History. Reading his opinion unaware could well lead to snorting hot coffee through one’s nostrils, while gleefully laughing as he handed dissenting justices a vitriolic expose on the actual rule law, in line with the United States Constitution. Not to say that I supported 100% of his opinions; I was simply in awe and in love with his legal reasoning.

(Jesinoski v. Countrywide Home Loans, Inc. (2015) ___U.S.___ [135 S.Ct. 790, 190 L.Ed.2d 650, 25 Fla. L. Weekly Fed. S. 29].) is but one opinion that we all were pleased to read, and perhaps some of us, had secretly hoped he would call the National Banks on their jiggery-pokery and pure applesauce but with an unanimous opinion it clearly was not necessary. The banks and their sympathetic, biased judiciary friends were told their applesauce does not trump our legal rights and gave us back one of the greatest legal tools (rescission) to dump that applesauce back on to the bank.

The US Constitution is about you and me, as individual Americans, and Justice Scalia never wavered from this fundamental fact in his interpretation of the law. Americans lost a great supporter of our individual rights and a strong advocate for our right to demand that every person – and every corporation or company, respect the rule of law.

Rest in peace Justice Scalia. And we shall…

KEEP UP THE FIGHT!

Simonee

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Bill Paatalo & Kimberly ‘Simonee’ on the Gallant Goose & Friends Talkshow

Posted by on Jan 26, 2016 | 0 comments

Bill Paatalo & Kimberly ‘Simonee’ on the Gallant Goose & Friends Talkshow

Did you miss it? No worries, you can listen to it here!

http://www.talkshoe.com/talkshoe/web/audioPop.jsp?episodeId=1045590&cmd=apop

Radio-ITFF-Long

Call in: at (724) 444-7444 (then use Call ID: 139335) then “1#” for guest; and/or
Use your computer: to blog/type at http://www.talkshoe.com/tc/139335

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The Big Short…how does this relate to YOUR Mortgage?

Posted by on Dec 28, 2015 | 0 comments

The Big Short…how does this relate to YOUR Mortgage?

The Big Short released in US Theatres on December 23, 2015; this movie, with actors such as Brad Pitt, Christian Bale, Ryan Gosling, Steve Carell (who I did not recognize!), Marisa Tomei and cameo appearances from Selena Gomez and Margo Robbie, tells the tale of industry players who recognized the pending crash of the US Housing Market in 2008 and as a result, created the “short” to financially benefit from the crash. The Big Short is an interesting movie – though for any borrower or homeowner looking for a solution out of their own ticking time bomb of financial destruction, the Big Short comes up short with any meaningful answer or guidance.   If anything it may leave you with a profound sense of rage and loss. Rage that millions of American’s were duped with the false illusion of homeownership through irresponsible loans, and unsuspecting investors were induced into financing the damn things to feed the demand of…investors wanting the MBS; rage that once the lenders and Wall Street firms realized what was about to happen they did nothing to stop it but rather participated in the “shorts” to benefit from the impending crash. And loss, that our government is so corrupt instead of tossing these criminals (all of them) into jail our taxes were used to bail their butts out.

The Big Short is about one piece of the ugly housing crash; and the “big short” came about after the crash had been put in motion by the real culprits. The maverick shops[1] that recognized the massive, fraudulent Mortgage Backed Securities (“MBS”) being sold with bought ratings[2] by banks and Wall Street from Moody and Standard & Poor’ started the market by creating the “shorts” (Scion bought 1.3 Billion in shorts, which Deutsche, Morgan Stanley and such, gleefully created/and sold but then had problems providing pay out numbers, alleging the “dog ate my homework” kind of excuses when Scion came to collect). The movie talks about the criminal acts of Goldman Sachs, Solomon Brothers, JP Morgan Chase, Deutsche Bank, Morgan Stanley, Moody, Standard & Poors, and the SEC (illustrated with one young woman interested in working for the very banks she was supposedly responsible for ensuring compliance, and instead, engaging in a one night stand with a banker who could potentially get her a banking job). The movie does not do a great job of drawing a bright line between the addictive gambling we call “stocks” and the hard core reality of a family living in a van as a result of the inevitable crash.

The closest the movie gets is the visit between Mark Baum (Steve Eisman renamed as Baum and played by Steve Carrell), his team, and the “party boy” mortgage brokers in Florida, who brag about getting multiple homes for strippers (you know, the ones that strip and dance on a pole) by selling NINJA (No Income No Job Application) loans. Bragging they can get a signature on Friday and the loan will be sold by noon on Monday is probably the most telling statement, in regards to borrowers, of the two plus hour movie.    The second most telling statement is the private MBS (Mortgage Backed Securities) ran out of prime borrower loans to pool into the MBS – ergo the push to pick up subprime loans. Talk about perfect timing for the likes of Countrywide and New Century, Angelo Mozilo must have thought he died and went to heaven when Wall Street came knocking at his door, begging to purchase his crap loans.

The reality is the damage to the borrower was done years before the Big Short took place; when Wall Street recognized the investor appetite for mortgage backed securities was beyond what the market could responsibly fulfill, they turned to subprime loans. The subprime market invented a slew of irresponsible financial products that had low teaser rates, or pick a pay options, among other features that pretty much ensured the borrower would never pay off the loan. The lenders rationalized these ticking time bombs of financial destruction with the big lie – the borrower could refinance out of the crappy loan with the increased equity in the property. According to the movies “party boy” brokers, as incentive to get borrowers into these loans, mortgage brokers were paid fees five times that of a responsible loan. Specifically, brokers were paid a measly $2,000 fee for a 30 year fixed rate loan (triple AAA paper the MBS market typically relied on for the securities); whereas putting someone into an Adjustable Rate or Negative Amortization loan paid fees in excess of $10,000 (ergo why borrowers that did in fact qualify for 30 year fixed rate loans were steered into the ARM and NegAm products). With the sheer number of loans going from an average of 10 applications/loans a month to 50 or 60 per month, per broker – you can see the potential for the fraud. In one scene Baum’s man talks with a tenant who asks about the landlord – which according to the paperwork is the name of the dog of the property owner.

So here you have the blue print for the massive fraud – Wall Street demands more loans – lenders respond by coming up with the exotic loans that provide a low teaser rate so anyone can qualify temporarily –which the lenders quickly sell to Wall Street (alleviating any risk for actual performance on the loan), Wall Street converts the loans into mortgage backed securities which Moody’s and Standard & Poor’s give a false triple A rating, and then Wall Street quickly sells the doomed loans to the investors (your pension plan). In 2007 the rates started adjusting and boom…2008 sees a massive rise in defaults when low $1,000 mortgage payments quickly escalated into $3,000 and $4,000 payments. The housing market crashes taking the life savings and homes of millions of Americans along with it.

I highly recommend the Big Short; in fact I will probably buy the book just so I can explain what happened with my Jenga Blocks.   The movie makes the-big-short-teaser-postera serious attempt (with comedy and a great ensemble) at explaining this incredibly boring subject. A subject that is, in fact, so ugly because of the destruction it wrought on the US and world economy and insidious because it shows just how immoral and corrupt our federal government and banking system is. Even after everything that happened…all the truths that were revealed, not one single banker; not one single stockbroker; not one single ratings agency – faced criminal charges. Instead, the US Tax payer was tapped to bail out the criminals and the bank’s CEOs were invited to the White House for dinner.  Not the ending one would expect (or hope for), but an ending that inevitably happens in a society that values money over honor, truth or justice.

[1] Apparently Eisman’s group stumbled into this with a wrong number phone call.

[2] This would be like you paying Experian to give you a 800 FICO score so you could get a low interest loan.

 

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We Wish You A Merry Christmas & A Happy New Year!

Posted by on Dec 23, 2015 | 0 comments

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