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« Mass. court ruling has potential to void thousands of foreclosures - Washington Post | Main | Elizabeth Warren on Tavis Smiley »
Thursday
Jan132011

Josh Rosner On Massachusetts Foreclosure Ruling: "Opens the floodgates to more lawsuits and strengthens cases in other states" - Includes Amicus Brief

Our first story on the Massachusetts ruling:

Mass. court ruling has potential to void thousands of foreclosures - Wash Po

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Banks lose pivotal Massachusetts case

Source - Bloomberg

U.S. Bancorp and Wells Fargo & Co., in a ruling that drove down bank stocks, lost a foreclosure case before Massachusetts’s highest court that will guide lower courts in that state and may influence others in bank disputes involving state real-estate law.

The state Supreme Judicial Court yesterday upheld a judge’s decision saying two foreclosures were invalid because the banks didn’t prove they owned the mortgages, which he said were transferred into two mortgage-backed trusts without the recipients’ being named.

Joshua Rosner, an analyst at the New York-based research firm Graham Fisher & Co., called the decision “a landmark ruling” showing that at least in Massachusetts a mortgage “must name the assignee to be valid.”

“This is likely to open the floodgates to more suits in Massachusetts and strengthens cases in other states,” Rosner said.

“We agree with the judge that the plaintiffs, who were not the original mortgagees, failed to make the required showing that they were the holders of the mortgages at the time of foreclosure,” Justice Ralph D. Gants wrote for a unanimous court.

Although the decision was issued by a Massachusetts state court, it will be used by homeowners in foreclosure cases in other states, said Matthew Weidner, a St. Petersburg, Florida, lawyer who represents such homeowners.

  • “This is a very detailed, very specific indictment of an entire industry’s practices and procedures, and it’s an indictment that is going to send shockwaves throughout the entire mortgage, foreclosure, real-estate servicing industry,” he said.

“In Massachusetts, where a note has been assigned but there is no written assignment of the mortgage underlying the note, the assignment of the note does not carry with it the assignment of the mortgage,” Gants wrote.

  • The court rejected the banks’ request to apply the decision only to future foreclosures if they lost.
  • In a concurring opinion, Justice Robert J. Cordy said he was struck by “the utter carelessness with which the plaintiff banks documented the titles to their assets.”

“All that has changed is the plaintiffs’ apparent failure to abide by those principles and requirements” in the law “in the rush to sell mortgage-backed securities,” Gants wrote.

Continue reading at Bloomberg...

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IBANEZ DECISION ANALYZED

They never did the assignment and later when they tried to correct that problem they found they were in the position of violating the terms spelled out in the PSA wherein the assignment could be accepted by the pool — as to time, content (non-performing loans) etc. As of this point in time, there are approximately 50 million transactions over the past ten years that fit this fact pattern. All of them have fatal defects in title.— Neil Garfield

The big point to take away from this decision is that the Banks must prove they have the right — it will no longer be presumed just because they have some paperwork of dubious authenticity and give an order to foreclose. Trustees around the country better take notice that if they receive an instruction on a Deed of Trust that they should foreclose they may be a tool in a fraudulent scheme.

http://foreclosureblues.wordpress.com/2011/01/08/ibanez-decision-analyzed/

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AMICUS BRIEF FILED FOR LANDMARK MASSACHUSETTES CASES IBANEZ & LaRACE EXPOSES FORECLOSURE FRAUD

http://stopforeclosurefraud.com/2010/10/05/amicus-brief-filed-for-landmark-massachusettes-cases-ibanez-larace/

Marie Mcdonnell (Certified Fraud Examiner) -- Amicus Brief --regarding the Ibanez & U.S. Bank case

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Recently from Josh Rosner...

Josh Rosner: "Foreclosure Fraud Nightmare Scenario Could Dwarf The Lehman Weekend"

 

"50 Years At 50 Basis Points" - Josh Rosner On Radio Free Dylan Ratigan

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Reader Comments (18)

IBANEZ DECISION ANALYZED

They never did the assignment and later when they tried to correct that problem they found they were in the position of violating the terms spelled out in the PSA wherein the assignment could be accepted by the pool — as to time, content (non-performing loans) etc. As of this point in time, there are approximately 50 million transactions over the past ten years that fit this fact pattern. All of them have fatal defects in title.— Neil Garfield

The big point to take away from this decision is that the Banks must prove they have the right — it will no longer be presumed just because they have some paperwork of dubious authenticity and give an order to foreclose. Trustees around the country better take notice that if they receive an instruction on a Deed of Trust that they should foreclose they may be a tool in a fraudulent scheme.

http://foreclosureblues.wordpress.com/2011/01/08/ibanez-decision-analyzed/
Jan 10, 2011 at 1:27 AM | Registered CommenterDailyBail
AMICUS BRIEF FILED FOR LANDMARK MASSACHUSETTES CASES IBANEZ & LaRACE EXPOSES FORECLOSURE FRAUD

http://stopforeclosurefraud.com/2010/10/05/amicus-brief-filed-for-landmark-massachusettes-cases-ibanez-larace/
Jan 10, 2011 at 1:29 AM | Registered CommenterDailyBail
Massachusetts Fraudclosure Ruling - More Analysis

http://market-ticker.org/akcs-www?post=176822
Jan 10, 2011 at 1:37 AM | Registered CommenterDailyBail
NYSC] Judge Restrains EMC MTG, MERS From Foreclosing For FRAUDULENT ASSIGNMENTS

http://stopforeclosurefraud.com/2011/01/06/nysc-judge-restrains-emc-mtg-mers-from-foreclosing-for-fraudulent-assignments/
Jan 10, 2011 at 3:07 AM | Registered CommenterDailyBail
DB,
I'm so confused. While on the one hand, I don't want these criminal enterprises like BofA and Wells Fargo to profit one dime from not following the rules, I also don't want to see the dead beat home debtors to live in a house one day for free. I have to pay every day, and I believe 90% of the country did not get themselves into the home debtor ATM and continues to pay their mortgage, HOA's and taxes. How are we going to foreclose on the people who are not paying while not allowing the banks to profit?

I don't know much about receivorship, but I have heard it is one option. The problem, of course, is that once the banks are taken over they will become political tools and none of the home debtor dead beat losers will ever have to pay for their houses.

I do know the first step is to stop giving the banks free taxpayer money. We must impeach any member of congress that continues to support any bank backstop.
Jan 10, 2011 at 4:13 PM | Unregistered CommenterBenny and the Talibanks
I'm so confused. While on the one hand, I don't want these criminal enterprises like BofA and Wells Fargo to profit one dime from not following the rules, I also don't want to see the dead beat home debtors to live in a house one day for free.

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It's already happening..i've done loads of stories on living for free...not paying...people are doing it...

i agree with you...i'm covering foreclosure ONLY from the angle of fraud...i don't want deadbeats who got hundreds of thousands if not millions out of their bubble homes via helocs to get off scott free...kick them out BUT follow the rules...i hate the banks as much as i hate deadbeats who took advantage of the system...so if the banks didn't follow the rules, i say fuck them....and the same for certain homeowners who got rich and now want loan mods...or their helocs wiped away...etc...

Jan 10, 2011 at 5:26 PM | Registered CommenterDailyBail
Jan 10, 2011 at 5:31 PM | Registered CommenterDailyBail
read this one benny...

Read it.

Thanks, you ruined my night :)

Only one solution I guess: Take over the banks and sell the houses in foreclosure... will NEVER happen in our communist society. Remember what communism evolves into, a small wealthy elite while the rest of the country works for them and waits in bread lines.
Jan 10, 2011 at 11:31 PM | Unregistered CommenterBenny and the Talibanks
yep...
Jan 11, 2011 at 5:23 AM | Registered CommenterDailyBail
New Massachusetts SJC ruling...


Buyer Can’t Sue After Bad Foreclosure Sale

http://www.bloomberg.com/news/2011-10-18/buyer-can-t-bring-case-after-bad-foreclosure-sale-court-rules.html
Oct 18, 2011 at 3:05 PM | Unregistered Commenterjohn
UPDATE:

Massachusetts Home Seizures Threatened in Loan Case: Mortgages

http://www.businessweek.com/news/2012-02-21/massachusetts-home-seizures-threatened-in-loan-case-mortgages.html

[snip]

The highest court in Massachusetts is poised to rule as soon as this month on a foreclosure case that could lead to a surge in claims from home owners seeking to overturn seizures.

The justices are deciding whether to uphold a lower court ruling that gave a Boston home back to Henrietta Eaton after Sam Levine, a 25-year-old Harvard Law School student, argued in front of the nation’s oldest appellate court that the loan servicer made mistakes when it foreclosed because it didn’t hold the note proving she was obliged to pay the mortgage.

“If the Massachusetts court says this defense works, that would have a huge ripple effect across the country,” said Kurt Eggert, a professor at Chapman University School of Law in Orange, California.
Feb 21, 2012 at 7:27 PM | Registered CommenterJohn
Stay tuned for an update to my last post. (h/t) to a friend and my thanks.
Mar 31, 2012 at 11:05 PM | Registered CommenterJohn
Interesting tidbit John.
Apr 4, 2012 at 12:55 AM | Unregistered CommenterS. Gompers
Here is a Foreclosure story running on Boston News Station WCVB that will be of interest to many.

http://www.wcvb.com/news/money/Program-buys-foreclosed-homes-sells-them-back-to-owner/-/9848680/15148220/-/bd5xio/-/index.html
Jun 24, 2012 at 8:32 AM | Registered CommenterJohn
Here is an update RE: Eaton

http://www.creditslips.org/creditslips/2012/06/eaton-v-fannie-mae-analysis.html#more

Be sure to read the comments.

(edit)

There has been zero media coverage of this ruling. I found this after my post regarding the WCVB segment on foreclosures, two days after the ruling.
Jun 24, 2012 at 1:17 PM | Registered CommenterJohn

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