Thursday, September 15, 2011

FINALLY! FLORIDA JUDGE COMPELS PRODUCTION.


FLORIDA JUDGE COMPELS PRODUCTION OF SECURITIZATION DOCUMENTS

Posted on September 15, 2011 by Neil Garfield

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KEY LENDER TACTIC ERODES

EDITOR’S NOTE: Why is this important?
Here is one statistic: no foreclosure case that I have been following  has gone to an actual trial where there was testimony and evidence tested by cross examination. The tactic that has been covering the pretender lenders for years is to avoid the facts. I have said repeatedly that these cases are going to be won in discovery. Jon Lindeman and here, Jeff Barnes, is proving that over and over again.
The significance of this and other orders like it is that Judges are now willing to allow homeowners to be heard on the merits of their case rather than on presumption. The goal here is to prove that the affidavit of indebtedness or Declaration (in other states) is either wrong or perjured, in addition to raising questions regarding the identity of the creditor, and thus ownership of the loan and ultimately whether the lien was ever perfected.
If in fact the originator was a nominee and there was no disclosure on the security instrument identifying the creditor, leaving the public to guess who could release or execute a satisfaction of the lien, then the lien (in most states) has not been perfected. THAT leaves the obligation unsecured and THAT leaves the homeowner in the driver’s seat in modification or settlement talks.
After set-off for lending violations and other claims, the obligation can be reduced or even extinguished in bankruptcy. But even if the the total obligation were to remain as stated it would not be subject to foreclosure on real property except as a judgment lien which would be barred in many states by the homestead exemption. 3 cheers for Barnes. Check with an attorney who is licensed in the jurisdiction in which your property is located before acting on anything you see here.
FLORIDA JUDGE COMPELS PRODUCTION OF SECURITIZATION DOCUMENTS
September 14, 2011
A Florida Judge has ordered Deutsche Bank, the claimed “trustee” of a
securitized mortgage loan trust, to produce numerous securitization
documents (including the PSA, Master Purchasing Agreements, Issuer
Agreements, Commitment to Guarantee Agreements, Release of Document
Agreements, Trustee Agreements, etc.); documents concerning insurance
on the securitized mortgage loan; credit default swap documents;
servicing agreements; documents as to proof of charges listed on the
HUD-1; documents as to the identification of the holder of or investor
in any Special Investment Vehicle, Collateralized Mortgage Obligation,
Collateralized Debt Obligation, mortgage-backed security, or credit
default swap which is collateralized in whole or in part by the
mortgage or note; and documents which identify all persons who
authorized the filing of the foreclosure action. The ruling was in
response to a Motion for Ruling on Discovery Objections and to Compel
Documents in a Request for Production. The Motion and discovery were
filed by Jeff Barnes, Esq., who represents the homeowner.
Deutsche Bank’s counsel waited ten (10) months before filing a
“Response” to the Request for Production, which consisted almost
entirely of objections. The Judge also compelled Deutsche Bank’s
counsel to file and serve a Privilege Log as to all documents which DB
claimed to be “privileged” in any respect.
The ruling represents another milestone for homeowners seeking
discovery of securitization documents. For years, we saw the “banks”,
servicers, and “trustees” of securitized mortgage loan trusts
objecting to these documents on the grounds of “relevance” and “lack
of standing”. As those of you who follow this website are aware,
recent rulings have not only compelled this discovery and awarded
attorneys’ fees and/or dismissed judicial foreclosures when the
discovery is not produced, but the “relevance” has been seen by the
Horace and Hendricks decisions which granted summary judgment to the
homeowners based on matters in the very discovery which has been
ordered to be produced in this case. The Horace court also held that
the homeowner is a third-party beneficiary of the PSA.
This is the 13th such Order compelling securitization discovery which
Mr. Barnes has obtained from courts in different states, including
Florida, New Jersey, and Oregon.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com
Filed under: bubble, CDO, CORRUPTION, currency, Eviction, foreclosure, GTC | Honor, Investor,Mortgage, securities fraud Tagged: | , , , ,, , , , , , , , , , , , ,
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8 Responses

  1. carie, on September 15, 2011 at 2:15 pm said:
    “…The Depositor owns the Trust — and while the Trust was performing – the Depositor, on behalf of the Trust would be the party to bring the action. However, these Trusts have now been brought back on parent corp. (to Depositor) balance sheets because the Trusts—as “off-balan­ce sheet” SPVs — have been effectivel­y dissolved. The only tranche holders to remnants of the Trusts is the US Government or the Depositor (parent) itself. You should be preparing to demonstrat­e that the loan was not validly conveyed to any Trust (which they were not). Do this by requesting the Mortgage Schedule which should accompany the Mortgage Loan Purchase Agreement (MLPA) — and the MLPA cannot be an “intent” to sell — it must be validly executed and notarized (we know about those notaries). And, importantl­y, if MLPA and Mortgage Schedule can be proven, servicer must prove that all default payments have been paid to the trust on borrower’s behalf. If not, loan has been removed from the Trust with collection rights sold/swapp­ed to a Third Party…
    They can not prove anything.”
  2. edgetraderplus, on September 15, 2011 at 12:31 pm said:
    Thursday 15 September 2011
    Hendricks v USBN case no. 10-849.CH
    Horace v LaSalle Bank
    Lots to glean from this source and both cases
  3. neidermeyer, on September 15, 2011 at 12:31 pm said:
    I just e:mailed Jeff Barnes requesting the case number and district in FL .. Looks like I held out just long enough to be a beneficiary of the sea change..
  4. carie, on September 15, 2011 at 12:27 pm said:
    spell check…I mean received…
  5. carie, on September 15, 2011 at 12:01 pm said:
    Awesome—unsecured debt—NEVER went into any trust…so, how are some people getting back all the money they paid to the “servicers” who resieved payments based on this fraud???
    Why aren’t lawyers all over this???
  6. Rabi, on September 15, 2011 at 10:16 am said:
    Fabulous. I just hope the judge kicks them into orbit. Jeff Barnes et al nominated for the Nobel Peace prize for such groundbreaking accomplishment. These thieves and highway robbers need to get their come-uppance . We will be following this one, douche bag…..er Deutsche bank.
  7. enraged, on September 15, 2011 at 9:09 am said:
    As I keep saying, slow process to reverse the iniquities of the past 15 years but… we WILL get there, one case at a time. I really believe that homeowners’ failure to fight early on and general apathy (or intimidation?) is what caused that debacle to go on for so long. Had people taken to arms right off the bat, we would have uncovered much earlier what banks had been up to and we probably would have been aware of enough and early enough to not get ourselves into that economic pickle. Imagine having known 3 or 4 years ago the fraud committed by the banks: there is no way in hell any of them would have been bailed out!
    Hopefully we’ll all learn from it. What did Fitts say? If we can face it, God can fix it.
  8. leapfrog, on September 15, 2011 at 9:02 am said:
    The ruling represents another milestone for homeowners seeking
    discovery of securitization documents. For years, we saw the “banks”,
    servicers, and “trustees” of securitized mortgage loan trusts
    objecting to these documents on the grounds of “relevance” and “lack
    of standing”.
    Yep, standard tactic. Hope the judge in my case also wants to take a peek at the securitization docs. Hope the judge hands the pretender-lenders’ asses back to them on a plate.

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