Balancing the Scales of Justice for Pro Se Homeowners

Posts by Simonee

Are you surprised?

Posted by on Jun 17, 2015 | 0 comments

Those of us in the daily battle already know they failed to adhere to the Consent Agreements. How about pounding them for a 100Billion or ..then maybe Jamie Dimhead  Dimon won’t laugh in senator’s faces telling them….go ahead fine us…as he reaps bonus.

 

Contact: Bryan Hubbard
(202) 649-6870

OCC to Escheat Funds from the Foreclosure Review, Terminates Orders Against Three Mortgage Servicers, Imposes Restrictions on Six Others

WASHINGTON — The Office of the Comptroller of the Currency (OCC) today announced it will escheat at the end of 2015 any remaining uncashed payments made pursuant to the Independent Foreclosure Review (IFR) Payment Agreement so eligible borrowers and their heirs may claim the funds through their states’ escheatment processes. The agency also terminated foreclosure-related consent orders against three national bank mortgage servicers that have met the consent order requirements, and imposed business restrictions on six banks that have not completed the required corrective actions.

To date, the IFR Payment Agreement resulted in the distribution of more than $2.7 billion to more than 3.2 million eligible borrowers from OCC-supervised institutions. This amount represents more than 90 percent of the total amount available for distribution. Despite that high cash rate compared to many other payment distributions, the OCC anticipates that approximately $280 million from OCC-supervised institutions will remain unclaimed at the end of the year after considerable efforts to locate eligible borrowers have been exhausted. The decision to escheat all funds available from uncashed checks provides the remaining eligible borrowers and their heirs the additional opportunity to claim the funds through their states’ escheatment claims processes. The OCC’s decision only affects funds attributable to the orders issued to institutions it regulates.

The decision to escheat uncashed payments was included in the termination documents and amended consent orders released today.

The OCC terminated orders against Bank of America, N.A.; Citibank, N.A.; and PNC Bank, N.A., because it determined that these institutions have complied with the orders issued in April 2011 and amendments issued in February 2013.

The OCC also has determined that EverBank; HSBC Bank USA, N.A.; JPMorgan Chase Bank, N.A.; Santander Bank, National Association; U.S. Bank National Association; and Wells Fargo Bank, N.A., have not met all of the requirements of the consent orders. As a result, the amended orders issued today to these banks restrict certain business activities that they conduct. The restrictions include limitations on:

  • acquisition of residential mortgage servicing or residential mortgage servicing rights (does not apply to servicing associated with new originations or refinancings by the banks or contracts for new originations by the banks);
  • new contracts for the bank to perform residential mortgage servicing for other parties;
  • outsourcing or sub-servicing of new residential mortgage servicing activities to other parties;
  • off-shoring new residential mortgage servicing activities; and
  • new appointments of senior officers responsible for residential mortgage servicing or residential mortgage servicing risk management and compliance.

These restrictions vary based on the particular circumstance of each bank.

In all cases, OCC examiners will continue to oversee these institutions’ corrective actions and mortgage servicing activities as part of the agency’s ongoing supervision.

Foreclosure-related consent orders against Aurora Bank, FSB, and MetLife Bank, N.A., were terminated previously by operation of law after these institutions ceased to operate as regulated, insured depository institutions. Separately, OneWest Bank completed the IFR and remediation to borrowers as required under its original order issued in April 2011 and did not enter into a payment agreement with federal regulators. Final determination of OneWest Bank’s compliance with the corrective actions required in its April 2011 order is being considered in conjunction with its application to merge with CIT Bank, and separately from other banks that entered into IFR payment agreements in 2013.

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Pro per’s CAN Assert Work Product Privilege!

Posted by on Feb 17, 2015 | 0 comments

As a pro per one of the many challenges is protecting the research and work you do, on your own behalf, as an attorney.  Often when responding to discovery, the opposing counsel will say “you are not an attorney, and therefore cannot invoke privilege”. However, that is not true.  According to Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969, 970 [98 Cal.Rptr.3d 422] (Meza):

An attorney has a qualified privilege against the discovery of general work product and an absolute privilege against disclosures of writings containing an attorney’s impressions, conclusions, opinions, or legal theories (Code Civ. Proc., § 2018.030). Although the attorney is the holder of the work product privilege, a client has standing to assert the privilege on behalf of a former attorney who is absent from the litigation. The privilege may also be asserted by a pro se litigant because the privilege is intended for the protection of litigants, not just attorneys; See also Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 134 [86 Cal. Rptr. 2d 180]

Meza takes a deep dive into when and how the work product privilege may be invoked under a common interest doctrine; while Meza focuses on an attorney “switching sides” during litigation, the value of understanding what rights you may have as a pro per investigating the good, the bad, and the ugly of your situation needs to be done with the freedom of knowing your work is protected.   This doesn’t mean that anything you research, or produce, is protected by work product privilege but it does mean that can protect key research for your case.  It also means in pro per you have the rights of privilege.

In persona litigants may assert the work product privilege. Section 2018 does not define the term “attorney,” and since that term has been applied to other statutes without distinguishing between attorneys and unrepresented litigants, the term was ambiguous. However, an amendment sponsored by the California State Bar, which was adopted by the Legislature almost verbatim, emphasized the need to limit discovery so that a less able or willing practitioner may not take undue advantage of his or her adversary’s efforts. This policy is important not only for attorneys, but also for litigants acting in propria persona. The work product privilege exists to promote the adversary system, and allowing litigants appearing in propria persona to assert the privilege furthers that purpose. In determining whether a particular matter is privileged as work product, the court should be guided by the policy of promoting diligence in preparing one’s own case, rather than depending on an adversary’s efforts.    See 2 Witkin, Cal. Evidence (3d ed. 1986) § 1145 et seq.

In Lohman v. Superior Court (1978) 81 Cal. App. 3d 90 [146 Cal. Rptr. 171] the pro per invoked his rights not as a client but rather as one performing the functions of an attorney.  Ultimately the Courts held the basic fundamental purpose of invoking the privilege is for the purpose of protecting the client, not just attorneys and therefore, a pro per has those protections.  Since “work product” is not defined, whether specific material is work product must be resolved on a case-by-case basis. (City of Long Beach v. Superior Court (1976) 64 Cal. App. 3d 65, 71 [134 Cal. Rptr. 468].) If the material sought would be subject to discovery from a represented party, it will be discoverable from a litigant appearing in propria persona. Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135 [86 Cal.Rptr.2d 180].

So how do you tell when it is appropriate to invoke the work product privilege and when not to?  The last thing you need is to be hauled into court on a Motion to Compel and then issued sanctions because the privilege in fact does not apply! The ultimate question to ask  yourself  is if the material being requested in discovery would be discoverable if it was your attorney’s communication, insights, etc. –  if the answer is no, it would be attorney work product – then consider invoking the privilege.  If the answer is yes, because your attorney would not be covered by the privilege, then disclose.

 

Hope this helps!

 

KEEP UP THE FIGHT!

 

Simonee

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HOMEOWNER WIN!!!!

Posted by on Nov 24, 2014 | 0 comments

ITFF is very pleased to share that a ITFF Member has won their Appeal with the 9th Circuit BAP Panel! Working as the paralegal for the Law Office Ronald H. Freshman, the Freshman legal team assisted Anton and Denise Rivera fight back against JP Morgan Chase and Deutsche’s false claim to be the holder of the Washington Mutual Note.

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ZOMBIE DEBT…and how to Protect Yourself from these crazies!

Posted by on Oct 20, 2014 | 0 comments

ZOMBIE DEBT…and how to Protect Yourself from these crazies!

Zombie debt is old debt purchased by debt collectors hoping to intimidate consumers into paying the debt. Intimidate because usually the debt is beyond the Statute of Limitations OR because the person calling doesn’t really own the debt.   And any payment made by you regenerates the debt back into life!

Morally we all feel obligated to pay our debts; but are you morally obligated to pay a debt from 10 years ago that you can’t remember if you owe it or not? Are you really morally obligated to pay a stranger who claims you owe it to them? Zombie debt collectors love to prey on your moral compass – hoping that your own feelings of moral compassfeelings of integrity and responsibility will get you to breathe life back into this dead debt, and pay them off. The sad fact is, even if you pay it off, if they were not the actual owner of the debt (and the debt has been sold to numerous companies) any one of zombie collectors can harass you in an attempt to collect.   You may even pay it, only to have an entirely different company call you and ask for payment.

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Due process requires a do over of constructive notice in New Century BK

Posted by on Sep 17, 2014 | 0 comments

Due process requires a do over of constructive notice in New Century BK

Ralph and Molly White went to bat for all borrowers of New Century Mortgage.  Doing what most thought was the impossible, the Whites challenged the cavalier and biased ruling of Judge Kevin Carey in regards to “constructive notice” of the bar date .  Recognizing that New Century Mortgage had specifically and deliberately designed the constructive notice  to notify New Century Mortgage financial partners but not borrowers, the District Court ruled that the constructive notice required a “do over”.

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