JUDGES AND FORECLOSURES
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This site is the time and effort of the Hufnagel Bioethics Institute . Our purpose is to help those victims who have no protocols or understanding of what to do or what their rights are.
Many Judges today and in the past just rubber stamp documents for foreclosure. We need to have an educational program for Judges and we need to learn all the scams and tricks used to protect those who are abusing the banking systems and the courts. We are asking the LA Superior Court to create a education program . See below some of the news on Judges. This material is not in the top of the news as it should be. This material we all need to know about. I had no idea that some Judges were taking on the cause for truth. Now we need to teach other Judges and the news and press who are not doing a good enough job. We had nearly a roit in LA in Dec.2010 and there was no reporting of it. It was a protest against Mellon Bank and 22 were arrested and the LA times had nothing about it. This causes me great worry. Dr.VGH
Contact your local Superior Court and work with the Presiding Judge to create a proper education program so these issues can be discussed and understood far more than they are today. We need to help the courts see the problems.
A ‘Little Judge’ Who Rejects Foreclosures, Brooklyn Style
By MICHAEL POWELL
Published: August 30, 2009
The judge waves you into his chambers in the State Supreme Court building in Brooklyn, past the caveat taped to his wall — “Be sure brain in gear before engaging mouth” — and into his inner office, where foreclosure motions are piled high enough to form a minor Alpine chain.
Nicole Bengiveno/The New York Times
"I don't want to put a family on the street unless it's legitimate," Justice Arthur M. Schack said.
Every week, the nation’s mightiest banks come to his court seeking to take the homes of New Yorkers who cannot pay their mortgages. And nearly as often, the judge says, they file foreclosure papers speckled with errors.
He plucks out one motion and leafs through: a Deutsche Bank representative signed an affidavit claiming to be the vice president of two different banks. His office was in Kansas City, Mo., but the signature was notarized in Texas. And the bank did not even own the mortgage when it began to foreclose on the homeowner.
The judge’s lips pucker as if he had inhaled a pickle; he rejected this one.
“I’m a little guy in Brooklyn who doesn’t belong to their country clubs, what can I tell you?” he says, adding a shrug for punctuation. “I won’t accept their comedy of errors.”
The judge, Arthur M. Schack, 64, fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, foreclosure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.
He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years. And his often scathing decisions, peppered with allusions to the Croesus-like wealth of bank presidents, have attracted the respectful attention of judges and lawyers from Florida to Ohio to California. At recent judicial conferences in Chicago and Arizona, several panelists praised his rulings as a possible national model.
His opinions, too, have been greeted by a cry of affront from a bank official or two, who say this judge stands in the way of what is rightfully theirs. HSBC bank appealed a recent ruling, saying he had set a “dangerous precedent” by acting as “both judge and jury,” throwing out cases even when homeowners had not responded to foreclosure motions.
Justice Schack, like a handful of state and federal judges, has taken a magnifying glass to the mortgage industry. In the gilded haste of the past decade, bankers handed out millions of mortgages — with terms good, bad and exotically ugly — then repackaged those loans for sale to investors from Connecticut to Singapore. Sloppiness reigned. So many papers have been lost, signatures misplaced and documents dated inaccurately that it is often not clear which bank owns the mortgage.
Justice Schack’s take is straightforward, and sends a tremor through some bank suites: If a bank cannot prove ownership, it cannot foreclose.
“If you are going to take away someone’s house, everything should be legal and correct,” he said. “I’m a strange guy — I don’t want to put a family on the street unless it’s legitimate.”
Justice Schack has small jowls and big black glasses, a thin mustache and not so many hairs combed across his scalp. He has the impish eyes of the high school social studies teacher he once was, aware that something untoward is probably going on at the back of his classroom.
He is Brooklyn born and bred, with a master’s degree in history and an office loaded with autographed baseballs and photographs of the Brooklyn Dodgers. His written decisions are a free-associative trip through popular, legal and literary culture, with a sideways glance at the business pages.
Confronted with a case in which Deutsche Bank and Goldman Sachs passed a defaulted mortgage back and forth and lost track of the documents, the judge made reference to the film classic “It’s a Wonderful Life” and the evil banker played by Lionel Barrymore.
“Lenders should not lose sight,” Justice Schack wrote in that 2007 case, “that they are dealing with humanity, not with Mr. Potter’s ‘rabble’ and ‘cattle.’ Multibillion-dollar corporations must follow the same rules in the foreclosure actions as the local banks, savings and loan associations or credit unions, or else they have become the Mr. Potters of the 21st century.”
Last year, he chastised Wells Fargo for filing error-filled papers. “The court,” the judge wrote, “reminds Wells Fargo of Cassius’s advice to Brutus in Act 1, Scene 2 of William Shakespeare’s ‘Julius Caesar’: ‘The fault, dear Brutus, is not in our stars, but in ourselves.’ ”
Then there is a Deutsche Bank case from 2008, the juicy part of which he reads aloud:
“The court wonders if the instant foreclosure action is a corporate ‘Kansas City Shuffle,’ a complex confidence game,” he reads. “In the 2006 film ‘Lucky Number Slevin,’ Mr. Goodkat, a hit man played by Bruce Willis, explains: ‘A Kansas City Shuffle is when everybody looks right, you go left.’ ”
The banks’ reaction? Justice Schack shrugs. “They probably curse at me,” he says, “but no one is interested in some little judge.”
Little drama attends the release of his decisions. Beaten-down homeowners rarely show up to contest foreclosure actions, and the judge scrutinizes the banks’ papers in his chambers. But at legal conferences, judges and lawyers have wondered aloud why more judges do not hold banks to tougher standards.
“To the extent that judges examine these papers, they find exactly the same errors that Judge Schack does,” said Katherine M. Porter, a visiting professor at the School of Law at the University of California, Berkeley, and a national expert in consumer credit law. “His rulings are hardly revolutionary; it’s unusual only because we so rarely hold large corporations to the rules.”
Banks and the cottage industry of mortgage service companies and foreclosure lawyers also pay rather close attention.
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A spokeswoman for OneWest Bank acknowledged that an official, confronted with a ream of foreclosure papers, had mistakenly signed for two different banks — just as the Deutsche Bank official did. Deutsche Bank, which declined to let an attorney speak on the record about any of its cases before Justice Schack, e-mailed a PDF of a three-page pamphlet in which it claimed little responsibility for foreclosures, even though the bank’s name is affixed to tens of thousands of such motions. The bank described itself as simply a trustee for investors.
Justice Schack came to his recent prominence by a circuitous path, having worked for 14 years as public school teacher in Brooklyn. He was a union representative and once walked a picket line with his wife, Dilia, who was a teacher, too. All was well until the fiscal crisis of the 1970s.
“Why’d I go to law school?” he said. “Thank Mayor Abe Beame, who froze teacher salaries.”
He was counsel for the Major League Baseball Players Association in the 1980s and ’90s, when it was on a long winning streak against team owners. “It was the millionaires versus the billionaires,” he says. “After a while, I’m sitting there thinking, ‘He’s making $4 million, he’s making $5 million, and I’m worth about $1.98.’ ”
So he dived into a judicial race. He was elected to the Civil Court in 1998 and to the Supreme Court for Brooklyn and Staten Island in 2003. His wife is a Democratic district leader; their daughter, Elaine, is a lawyer and their son, Douglas, a police officer.
Justice Schack’s duels with the banks started in 2007 as foreclosures spiked sharply. He saw a plague falling on Brooklyn, particularly its working-class black precincts. “Banks had given out loans structured to fail,” he said.
The judge burrowed into property record databases. He found banks without clear title, and a giant foreclosure law firm, Steven J. Baum, representing two sides in a dispute. He noted that Wells Fargo’s chief executive, John G. Stumpf, made more than $11 million in 2007 while the company’s total returns fell 12 percent.
“Maybe,” he advised the bank, “counsel should wonder, like the court, if Mr. Stumpf was unjustly enriched at the expense of W.F.’s stockholders.”
He was, how to say it, mildly appalled.
“I’m a guy from the streets of Brooklyn who happens to become a judge,” he said. “I see a bank giving a $500,000 mortgage on a building worth $300,000 and the interest rate is 20 percent and I ask questions, what can I tell you?”
By Julie Schmit, USA TODAY
Steven and Tamara Gewecke are three years behind on their mortgage payments, but they've fought off foreclosure.
The Minnesota couple refinanced in 2006 to start a business. It failed. Debts mounted. The Geweckes went bankrupt and failed to win a loan modification. But they bought time.
In 2009, the Geweckes filed a lawsuit to block their foreclosure. At the heart of their case is this question: Who owns their mortgage?
They allege the investor trust that claims to doesn't because there's no proper record of the mortgage's transfer to the trust. Their complaint also alleges that the mortgage didn't get to the trust until 18 months after the trust closed to new loans. If US Bank, the trustee, can't prove ownership, it can't foreclose, the Geweckes say.
Their argument is one that more borrowers are making as they fight foreclosures in courts nationwide. Their attorneys allege that companies used shoddy practices at the height of the subprime lending boom when reselling mortgage loans in rapid-fire fashion, leaving questions now about mortgage ownership as foreclosures mount.
While homeowners are unlikely to keep homes if they haven't paid their debts, their challenges are delaying foreclosures and giving them more leverage to win loan modifications, legal experts say. Their arguments are also getting more attention after revelations this fall that companies produced thousands of potentially fraudulent foreclosure documents. The Department of Justice and others are investigating.
"There has been a sea change," says Katherine Porter, a bankruptcy expert at the University of Iowa. "Judges are more willing to listen to homeowners ... to establish if the bank has done something wrong. In the past, it was always, 'The bank is right.' "
New York State Supreme Court Justice F. Dana Winslow testified at a congressional hearing this month that he's seen so many problems with foreclosure cases that he no longer assumes the company attempting to foreclose is the right one. Instead, he calls them the "presumptive mortgagee in foreclosure."
Winslow said he's often seen cases in which lawyers pushing for foreclosure failed to produce the mortgage note — which proves ownership of the debt — or produced the wrong note. Companies failed to establish the legal chain of title proving their right to foreclose and submitted "questionable" affidavits attesting to ownership of notes and mortgages, the lien on the property, he said.
Homeowners' attorneys also allege that companies created documents if they didn't have the ones they needed, including lost-note affidavits signed by low-level employees who never read the affidavits yet attested to their accuracy. It was "cheaper to make the documents up than ... to dig them up," says Linda Tirelli, New York consumer bankruptcy attorney.
Florida attorney James Kowalski, in recent written testimony to congressional lawmakers, cited a case in which two companies are trying to foreclose on the same house. Both claim to own the note.
Financial firms have said that any mistakes were minimal and can be remedied. In October, several firms, including Bank of America and GMAC Mortgage, temporarily halted some foreclosure sales to check procedures.
The industry also has defended the practice of bundling mortgages into securities for sale to investors. "There will be instances where mistakes were made ... but the broad process is sound," says Tom Deutsch, executive director of the industry's American Securitization Forum.
If companies can produce documents to prove standing to foreclose, some foreclosures may simply be delayed, legal experts say. But it's not clear that the issues are minor, said the Congressional Oversight Panel in a report last month. In a worst-case scenario, the report said that banks "may be unable to prove that they own" mortgages, clouding property titles for millions of homes and causing substantial financial harm to banks.
The issues are technical but "pose a potential systemic risk to the U.S. economy," Georgetown University law professor Adam Levitin said at a recent congressional hearing. If mortgages were not properly transferred, "Then mortgage-backed securities would in fact not be backed by any mortgages whatsoever," Levitin said.
A tangled paperwork trail
In the past, lenders rarely struggled to prove they had standing to foreclose. Local banks made mortgage loans, kept the documents and took payments.
But in the past decade, trillions of dollars of mortgage loans were packaged and sold to investors. Starting a day or two after homeowners signed closing papers, loans were sold and re-sold en route to investor trusts. To speed and reduce the cost of the process, lenders created Mortgage Electronic Registration Systems, or MERS, to track mortgage ownership and sometimes serve as mortgagee of record for the actual note owner. Some homeowners have challenged MERS' authority to foreclose on the note owner's behalf.
At issue now is whether mortgage loans were properly transferred and whether those transfers were properly documented.
Homeowner attorneys, such as the non-profit law firm representing the Geweckes, say that didn't always occur. Financial firms say it did. The trustee in the Gewecke case, US Bank, argues that Minnesota law does not require an assignment — a public record showing a transfer — of the mortgage at every step of its path into a trust. It also says that the note was put into the trust on time and so the mortgage was too. US Bank says it can prove that it owns the Geweckes' mortgage because it has the original note, the trust mentions the Gewecke loan and US Bank has an assignment that shows the mortgage was transferred from the Geweckes' original lender to US Bank. A hearing in Minnesota U.S. District Court is set for Jan. 10.
Deutsch also says that the typical contract governing trusts doesn't require that all prior owners or holders of mortgage notes appear on documents to show chain of ownership as notes pass from lenders or others to trusts. Levitin says they typically do. The law on such matters is "uncertain," says Christopher Peterson, law professor at the University of Utah. He predicts years of litigation.
Judge rules against BofA
The homeowners' cause scored a win last month when U.S. Bankruptcy Judge Judith Wizmur dismissed Bank of America's claim to enforce a New Jersey mortgage originated by Countrywide Home Loans in 2006.
Wizmur said that Countrywide, which Bank of America bought in 2008, never properly endorsed and transferred the mortgage note to the Bank of New York, the trustee of an investor trust. As such, there was no evidence that Bank of New York owned the note, leaving it unenforceable. A Bank of America employee also testified that Countrywide routinely failed to transfer original notes.
In her order, Judge Wizmur noted a "bizarre twist" in which Countrywide said the note had been "misplaced, lost or destroyed" but then said it had been found. Attorneys couldn't "explain the inconsistencies," Wizmur wrote.
Bank of America counters that it was Countrywide's policy to deliver notes as trust rules require and that the employee who testified "was mistaken," says spokesman Jerry Dubrowski. Bank of America will not appeal because it doesn't think the ruling will have broad implications, he adds.
The homeowner's attorney, Bruce Levitt, says the ruling means that his client no longer owes the $211,000 that Bank of America said was owed.
Moody's Investors Service, in a Dec. 6 report, said Countrywide probably did deliver mortgage notes. But it also said that when companies failed to do that, they "may not be able to foreclose" and that, given the New Jersey case, Bank of America may face more such challenges.
Other judges have also required more proof of right to foreclose. This month, a Florida judge dismissed a foreclosure case and said it could be refiled but needed to lay out the chain of who owned and held the mortgage loan from the start. In Ohio, a judge this month also ruled in a homeowner's favor in a foreclosure when he said, among other things, that there was no evidence that an allonge — a paper signed by the mortgage note's previous owner transferring ownership — was affixed to the note as it should have been. That left the note's ownership unclear.
The United States Trustee Program, which guards against bankruptcy court fraud for the Department of Justice, has also launched an "enhanced review of documents" in cases where banks seek to foreclose or collect payments, says U.S. Trustee spokeswoman Jane Limprecht.
The impact is being felt. Last month, the Justice Department's trustee for bankruptcy cases in northern Georgia filed papers in at least two cases saying that banks hadn't proved that they could enforce notes or deeds for the debtors' homes. The increased oversight by the trustees is meaningful, says bankruptcy attorney Howard Rothbloom. "The federal government has come in and said that lenders have to have their paperwork in order," he says.
Few foreclosures challenged
More than 90% of homeowners don't fight their foreclosures, lawyers say. Even if they do, the vast majority are unlikely to keep homes, because they haven't paid their debts, attorneys say. "The only way to avoid foreclosure ... is to pay off the loan," says Shari Olefson, a real estate attorney who often represents banks. If needed, companies will find notes, re-do sloppy paperwork and prove standing, she says. Bank of America and Wells Fargo say they can retrieve notes, when needed, and have good processes.
While banks made mistakes, the "probability is high that we'll figure out who owns the mortgage," says Richard Bove, banking analyst for Rochdale Securities.
Still, attorneys say companies may be more apt to modify loans if foreclosure records aren't in tip-top shape. Modifications "become more available when there is greater risk to the lender," says Judge Winslow in an interview. Rarely, if ever, will homeowners walk away with free homes even if there are title issues that take time to resolve, Winslow adds. Homeowners "owe someone."
The Geweckes want a loan modification so they can stay in their home of 16 years. Their current loan has an adjustable 9.25% interest rate. They owe more on the house than it's worth.
They're not looking for a "free ride," says Steven, 40, who works in marketing. Neither do they want to pay off one firm and then face a future claim by another.
They also hope their case will send a message to mortgage companies that they must obey rules, too.
"I understand that if you don't make your payments, you'll lose your home," says Tamara Gewecke, 41. "But make sure you do it right. Make sure you've got your paperwork done."
Some judges chastise banks over foreclosure paperwork
(from Washington Post)
During the housing boom, millions of homeowners got easy access to mortgages. Now, some mortgage lenders and government officials are taking action after discovering that many mortgage documents were mishandled.
By Ariana Eunjung Cha – Washington Post Staff Writer
Tuesday, November 9, 2010; 12:07 AM
EAST PATCHOGUE, N.Y. – A year ago, Long Island Judge Jeffrey Spinner concluded that a mortgage company’s paperwork in a foreclosure case was so flawed and its behavior in negotiations with the borrower so “repugnant” that he erased the family’s $292,500 debt and gave the house back for free.
The judgment in favor of the homeowner, Diane Yano-Horoski, which is being appealed, has alarmed the nation’s biggest lenders, who say it could establish a dramatic new legal precedent and roil the nation’s foreclosure system.
It is not the only case that has big banks worried. Spinner and some of colleagues in the New York City area estimate they are dismissing 20 to 50 percent of foreclosure cases on the basis of sloppy or fraudulent paperwork filed by lenders.
Their decisions illustrate the central role lower court judges will have in resolving the country’s foreclosure debacle. The mess came to light after lawsuits and media reports showed lenders were routinely filing shoddy or fraudulent papers to seize the homes of borrowers who had missed payments.
In millions of cases across the United States, local judges have wide latitude to impose sanctions on banks, free homeowners from their mortgage debts or allow the companies to proceed with flawed foreclosures. Ultimately, the industry is likely to face a messy scenario – different resolutions by courts in all 50 states.
The foreclosure dismissals in this area of New York have not delivered free homes for borrowers. With so much at stake, lenders in this part of New York are aggressively appealing foreclosure dismissals, which is likely to keep the legal system bogged down, foreclosed homes off the market, and homeowners like the Yano-Horoski family in legal limbo for years.
“We believe the Yano-Horoski ruling, if allowed to stand, has sweeping and dangerous implications for the entire mortgage lending industry,” said OneWest Bank, the family’s mortgage servicer.
The situation in Suffolk and Nassau counties on Long Island and Kings County in Brooklyn- which have among the highest rates of foreclosure in the state and where the 81 judges handling foreclosures have become infamous over the past few years for scrutinizing paperwork for errors – provides a window into how the crisis could unfold across in the country.
While the level of tolerance for document mistakes varies from judge to judge, the group as a whole has a reputation for ruling against mortgage companies when paperwork issues or other problems arise. At least one bank, J.P. Morgan Chase, requires document processors to separate foreclosures cases from these three counties from those in the rest of the country. A high-ranking executive of the company is specially assigned to sign off on the area’s foreclosure filings.
Judge Dana Winslow of Nassau County says he’s thought a lot about why judges in his area are more apt to question filings. He said it comes down to one thing: Lack of trust for Wall Street. In this region, judges have seen a lot of inaccurate filings from the financial sector.
Trust “of the lending institutions and Wall Street has eroded in some areas of the country more than others,” Winslow said.
Craig D. Robins, a foreclosure defense attorney who authors the Long Island Bankruptcy blog, said of the Yano-Horoski case: “I think we’re going to see more decisions like this across the country. Many judges are finding their court calendars clogged with cases that have all these flaws in them that never should have been brought in the first place or should never have been brought without more due diligence.”
Going forward, mortgage companies trying to foreclosure in the state of New York will face stiffer requirements. On Oct. 20, the state’s chief judge said attorneys for lenders will have to vouch personally for the accuracy of documents.
“We can’t have the process being a fraud,” New York State Chief Judge Jonathan Lippman said in announcing the new procedure. “It has to be real and based on credible information.”
Even before Lippman’s order, however, lower court judges were already raising questions about faulty paperwork in foreclosures.
On June 17, for example, Judge Karen Murphy of Nassau County ruled that Wachovia Bank lacked standing to foreclose on a home because the document used to prove ownership of the mortgage was incomplete.
On Sept. 21, Judge Peter Mayer of Suffolk County delayed a foreclosure by Ally Financial’s GMAC mortgage unit after noticing that the paperwork transferring the mortgage to the bank was dated two days after the foreclosure was initiated.
And on Oct. 21, Judge Arthur Schack of Kings County dismissed a OneWest foreclosure motion because the bank had not adequately documented how the mortgage had been sold and resold to investors. He also questioned why the employee who signed many of the documents claimed to be a vice president of several different mortgage companies at the same time.
In a different case in May, Schack ruled that HSBC Bank could not foreclose on a home because the paperwork that assigned the mortgage to HSBC from the original lender, Cambridge, was “defective.”
That didn’t mean the borrower, Lovely Yeasmin, a 28-year-old cashier who immigrated from Bangladesh, got her three-story townhouse in Brooklyn’s Bushwick neighborhood for free. Wells Fargo, the mortgage servicer for HSBC, has not appealed the case. Instead, it has offered to temporarily lower her monthly payment from $4,700 to $3,000.
Yeasmin’s eldest brother, Mohammed Parpez, 35, said that before the judge’s order, Wells Fargo was resistant to a loan modification. “The banks are crooks. They tell everyone they are trying to help people like us, but they are really doing the opposite,” Parpez said.
Tom Goyda, a Wells Fargo spokesman, said that although the company “disagrees with the court’s findings,” it is continuing to try to work out a longer-term solution with the family.
Members of the Yano-Horoski family said they struggled similarly to get their lender to modify their loan after Greg Horoski fell ill in 2005 and his online business selling specialty dolls suffered. After he underwent a triple bypass surgery, two stents and two hip replacements, he and his wife, Diane – who teaches an online English composition course – found themselves unable to pay the bills.
Despite his pleas, Horoski said, he failed to get OneWest to come to an agreement, even though he became able to pay the debt after his company’s sales picked up.
In his November 2009 ruling, Judge Spinner of Suffolk County blasted OneWest for negotiating with an “opprobrious demeanor and condescending attitude.” He also cited the bank’s “duplicity” in offering a forbearance agreement with a deadline that had already passed and for presenting contradictory paperwork claiming different amounts for what the family owed.
With their case under appeal, the Yano-Horoskis now find themselves in a tricky position, wary of putting more money into a house that an appeals court could take away from them. While the other houses on their quiet suburban street are meticulously maintained, their front-porch light remains shattered and the paint on their house is peeling.
They’ve shelled out $3,000 for a new hot-water system. They paid $2,000 for tree trimming after a neighbor complained. But they’ve let the $10,000 property tax bill become delinquent, and they worry an appeals court could not only reverse the earlier ruling but demand that the family pay back the mortgage for every month that has passed since.
Nonetheless, Horoski remains optimistic.
“People thought people who didn’t pay their mortgages were automatically deadbeats,” he said. “People are educated now. They are realizing all of a sudden how many hundreds of thousands of these homes that were foreclosed may have been done so with fraudulent documents.”