BofA & JPMorgan Proposed Accord Rejected by California AG

David McLaughlin, Bloomberg

A proposed nationwide settlement with banks including Bank of America Corp. (BAC) and JPMorgan Chase & Co. (JPM) is being rejected by California Attorney General Kamala Harris, who will pursue her own mortgage investigation in the state that had the second-highest foreclosure rate in August.

The proposed agreement is “inadequate” and would allow too few California homeowners to stay in their homes, Harris said in a letter yesterday obtained by Bloomberg News.

“After much consideration, I have concluded that this is not the deal California homeowners have been waiting for,” Harris, a Democrat who took office in January, said in the letter to the U.S. Justice Department and the Iowa attorney general, who is leading talks for the states.

All 50 state attorneys general last year announced they were investigating bank foreclosure procedures following complaints that the companies were using faulty documents in seizing homes.

State attorneys general and federal agencies have been negotiating a settlement with the five largest mortgage servicers, including Charlotte, North Carolina-based Bank of America and New York-based JPMorgan. They have sought a settlement that would fund loan modifications and set requirements for how the banks conduct foreclosures and interact with borrowers. Harris’s office has been negotiating directly with the banks on behalf of the states.

One in every 226 California housing units had a foreclosure filing during August, more than twice the national average and second only to Nevada, according to a RealtyTrac Inc. report. Harris said 2.2 million Californians are underwater in their mortgages.

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California Bankruptcy Court Holds That MERS Cannot Transfer Note For Want Of Ownership

From www.foreclosuredefensenationwide.com

The United States Bankruptcy Court for the Eastern District of California has issued a ruling dated May 20, 2010 in the matter of In Re: Walker, Case No. 10-21656-E-11 which found that MERS could not, as a matter of law, have transferred the note to Citibank from the original lender, Bayrock Mortgage Corp. The Court’s opinion is headlined stating that MERS and Citibank are not the real parties in interest.

The court found that MERS acted “only as a nominee” for Bayrock under the Deed of Trust and there was no evidence that the note was transferred. The opinion also provides that “several courts have acknowledged that MERS is not the owner of the underlying note and therefore could not transfer the note, the beneficial interest in the deed of trust, or foreclose on the property secured by the deed”, citing the well-known cases of In Re Vargas (California Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of authority of MERS), LaSalle Bank v. Lamy (New York), and In Re Foreclosure Cases (the “Boyko” decision from Ohio Federal Court).

The opinion states: “Since no evidence of MERS’ ownership of the underlying note has been offered, and other courts have concluded that MERS does not own the underlying notes, this court is convinced that MERS had no interest it could transfer to Citibank. Since MERS did not own the underlying note, it could not transfer the beneficial interest of the Deed of Trust to another. Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.”

Read that again: “Any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note IS VOID UNDER CALIFORNIA LAW.” This conclusion was based upon California law cited in the opinion that the note and the mortgage are inseparable, with the former being essential while the latter is “an incident”, and that an assignment of the note carries the mortgage with it, “while an assignment of the latter [the mortgage] alone is a nullity.” As MERS must own the note in order to assign the incident deed of trust, MERS is legally precluded from assigning the deed of trust for want of ownership of the note, and cannot assign the note in any event as it never owned it. MERS’ lack of ownership interest in promissory note is a matter of decided case law based on a record stipulation of MERS’ own lawyers in the MERS v. Nebraska Dept. of Finance decision.

This opinion thus serves as a legal basis to challenge any foreclosure in California based on a MERS assignment; to seek to void any MERS assignment of the Deed of Trust or the note to a third party for purposes of foreclosure; and should be sufficient for a borrower to not only obtain a TRO against a Trustee’s Sale, but also a Preliminary Injunction barring any sale pending any litigation filed by the borrower challenging a foreclosure based on a MERS assignment.

The Court concluded by stating: “Since the claimant, Citibank, has not established that it is the owner of the promissory note secured by the trust deed, Citibank is unable to assert a claim for payment in this case.” Thus, any foreclosing party which is not the original lender which purports to claim payment due under the note and the right to foreclose in California on the basis of a MERS assignment does not have the right to do so under the principles of this opinion.

This ruling is more than significant not only for California borrowers, but for borrowers nationwide, as this California court made it a point to cite non-bankruptcy cases as to the lack of authority of MERS in its opinion. Further, this opinion is consistent with the prior rulings of the Idaho and Nevada Bankruptcy courts on the same issue, that being the lack of authority for MERS to transfer the note as it never owned it (and cannot, per MERS’ own contract which provides that MERS agrees not to assert any rights to mortgage loans or properties mortgaged thereby).

We thank one of our dedicated readers for providing this opinion to us.

Jeff Barnes, Esq.

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Jerry Brown and Cal Bar Continue Kristallnacht-style Raids and Smear Campaigns Against Modification Lawyers

The Cal Bar put out the below press release a couple of days ago and I believe there is more to this story than what the Cal Bar is saying.  Just like their cases against Green Credit Solutions and Paul Lucas, what the Cal Bar is not saying is how many total clients did these attorneys have and how many people were actually helped.

The Cal Bar is about to lose their case against Green Credit Solutions because when they confiscated all the files out of their office, they  neglected to refer these homeowners to other attorneys or giving give them legal assistance to them. Thus, leaving hundreds of homeowners without legal representation and putting them at greater risk of losing their homes.  Matter of fact, because of the Cal Bar’’s actions, some actually did.  At the hearing this week, it was revealed that the Cal Bar only had 19 legitimate complaints against Green Credit Solutions.  They claimed last year they had 900.  This out of 3500 clients GCS had signed up.

The Cal Bar, the California AG’s office and the FTC publicly tarred and feathered Paul Lucas for scamming people by raiding and ransacking his offices, confiscating files and blocking his access to his firm’s bank accounts like something out of a 1930’s gangster movie.  They even attempted to have his law license revoked.  Only problem was, he wasn’t scamming people.  The FTC and the Cal Bar lost their case because Paul Lucas could prove he successfully modified 90% of the loans he handled and he was later re-instated as a member of the California Bar.  According to Cal Bar everything is now right in the universe.  Wrong!  Thanks to the internet, Paul Lucas will be permanently labeled, “Scam Artist”

So think about all that while reading this or any press releases put out by them or Jerry Brown’s office.

San Francisco, June 02, 2010 — Continuing its effort to protect the public from lawyers who take advantage of distressed homeowners, the State Bar prosecutor’s office has secured orders of involuntary inactive enrollment for Southern California attorneys Eric Douglas Johnsonand Mark Alan Shoemaker.

Besides the two involuntary inactive enrollments, the State Bar’s Office of Chief Trial Counsel has obtained the resignations of 13 attorneys involved in loan modification misconduct since creation of the Loan Modification Task Force in April 2009.  Five loan modification trials are pending. Another 2,000 active investigations related to loan modification are being conducted.

In separate May actions, State Bar Court Judge Richard Honn ruled that the conduct of  Johnson (State Bar #224065), 55, of Los Angeles, and Shoemaker (State Bar #134828), 49, of Long Beach, pose a “substantial threat of harm” to their clients or the public, and both were ordered involuntarily enrolled as inactive members of the State Bar under Business and Professions Code 6007.

Johnson associated with several non-attorney legal organizations, lending his name and status as an attorney to a firm offering bankruptcy filing and assistance, a business handling forensic audits and loan modifications and two other loan modification companies. Honn cited cases in which homeowners were promised that their homes would not be foreclosed but the homeowners lost them anyway after having made significant payments to the non-attorney companies.

Johnson “lacked control and failed to supervise” any of the organizations with which he was associated, Honn wrote in his May 18 order. “This lack of control and failure to supervise consequently led to, among other things, the unauthorized practice of law, misrepresentations and client harm.”

Shoemaker, whose case was investigated and prosecuted with the invaluable help of the California Department of Real Estate, has owned and operated a loan modification business called Advocate for Fair Lending since 2008. Shoemaker “used Advocate and his status as an attorney to convince cash-strapped homeowners to pay him thousands of dollars in hopes of saving their homes from foreclosure,” Honn wrote in his May 28 order. Shoemaker, however, “often did little to nothing to help these clients. In fact, many of these homeowners were worse off after retaining [Shoemaker’s] services.”

The order referred to 18 examples in which Advocate clients, who signed power of attorney when they contracted with Advocate, were not helped and asked for refunds. A few did get refunds; many others did not. Some clients reported that their lenders said they had never been contacted by Advocate on their behalf. Shoemaker argued that he was merely the president of Advocate and did not represent any Advocate clients in a legal capacity.

“Advocate’s clients were also [Shoemaker’s] clients,” Honn wrote. “An attorney cannot use a power of attorney form to absolve themselves of the ethical mandates they have sworn to uphold.”

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A Return to California Über Alles?

“Because of Jerry Brown, California homeowners are now forced to beg for modifications from their mortgage servicers like some Dickensian orphan begging for food.”

Many of you youngsters weren’t around to remember the punk movement of the late 1970s and early 1980s which brought great artists like the Sex Pistols, The Ramones, and the Dead Kennedys.   So, please indulge me while I reminisce about the music that made me the sarcastic and politically incorrect malcontent that I am today.  Back then Jerry Brown was a Jimmy Carter-In-Waiting as Governor of California and a song named California Über Alles by the Dead Kennedys was released and dedicated to Jerry Brown and it equated his leadership to Hippie Fascism.

Yes, the same Jerry Brown, the old bald guy running for governor now in 2010.  Back then, he was known as Governor “Moonbeam” because he proposed launching an emergency communication satellite into the Earth’s orbit.  It was actually an idea ahead of its time and Mike Royko a syndicated columnist from Chicago who coined the nickname later retracted it.  Unfortunately, for Jerry Brown, some nicknames never go away and his opponents used it to attack his unorthodox leadership during his tenure as governor.

What Brown attempted to do albeit unsuccessfully, was to emulate the liberal leadership styles of then-Canadian Prime Minister Pierre Trudeau and President Jimmy Carter.  Although equal in arrogance, ego and quirkiness as Trudeau, Brown was not as an effective a leader as Trudeau.  However, he was more charismatic than Jimmy Carter and had more friends in show business which helped put him on the national stage.  He did match Carter’s fiscal prudence which led to many of the problems California faces today.   Like Carter, he dismissed the opulence of public office.  Brown refused to use the Governor’s Mansion in favor of sleeping on a futon in an apartment in Sacramento and drove around in a Plymouth Satellite instead of a limo.  Carter sold the Presidential yacht and refused to remodel the interiors of both Air Force One and the White House which had not been remodeled since the Kennedy Administration.

However, Brown unlike Carter and Trudeau was not afraid to wear the face paint of an Eco-Warrior.  Brown wore the face paint by cutting freeway spending and draconian environmental regulations that favored low-sulfur oil.  Unfortunately, all he did was wear the face paint.  What he wasn’t telling his constituents was that his family was pocketing millions of dollars from his father and former California Governor Pat Brown’s ownership interest in Perta Oil, an Indonesian Oil Company that specialized and imported low-sulfur oil into California.   The family’s ownership interest was then handed over to Jerry Brown when he left the governor’s office in 1983.  So this calls into question Brown’s motivation for pushing through the California legislature these draconian environmental regulations that Californians still live under.

About seven months ago, I wrote an article on one of MFI-Miami’s sister sites called, “Is the California DRE even relevant anymore?” (You can read it here: http://www.mfi-modsquad.com/is-the-california-dre-even-relevant-anymore).  Since writing that article, Jerry Brown, who became California Attorney General in 2006, realized DRE wasn’t getting the job done of cracking down on shady loan modification companies and decided to now put on the face paint of “Consumer Watchdog”.  With the fervor that he used with going after “big oil” in the 1970s, he went after attorneys and modification companies like Puritans looking for witches in Salem.  He rounded up lawyers and litigated modification businesses out of the business.  His blood lust wasn’t just limited to the questionable and unsavory modification companies which are back in business today calling on unsuspecting homeowners in other states.   He went after the legitimate modification companies that were actually getting successful modifications completed.

Like his involvement in Perta Oil in the 1970s and early 1980s where no one connected the dots, today, no one is questioning Brown’s motivation for going after loan modification companies with such vengeance.

Before Brown became the Attorney General of California, he was elected Mayor of Oakland in 1998.  In his new position of mayor, he realized this job was more challenging than his cushy governorship he had in Sacramento during California’s boom times of the 1970s.  He needed help from two groups, banks and real estate investors and these two groups do not like dealing with liberal politicians especially ones with eccentric reputations like Brown.  Brown realizing this was the first step of shedding his image as Governor Moonbeam came to the conclusion he had to tone down the rhetoric and move to the political center if he was going to turn the City of Oakland around.

He began making alliances with financial groups and banks like Goldman Sachs which not only benefited him as mayor but would benefit him if and when he ran for statewide office again.   The rationale being that if these same groups profited during his tenure as mayor would make willing contributors in the future.  Brown’s gamble paid off.  These same bankers, real estate people and attorneys contributed in droves to his 2006 attorney general campaign.

The housing crisis and the modification industry that sprung up from its ashes created an idyllic situation for Brown who by now had his eyes back on the Governor’s mansion.  He could play the super hero to troubled homeowners and keep his financial backers happy.

As consumer complaints came into his office about shady loan modification companies, Brown seized on the opportunity.  Under the guise of the consumer watch dog, Jerry Brown single handedly destroyed any options a California homeowner had to level the playing field to negotiate with their lenders.  Granted there were quite a number of shady modification companies and modification attorneys but he didn’t just go after them, he went after the legitimate companies and law firms that were getting meaningful and long term modifications done for homeowners.

Jerry Brown delivered to Mortgage Bankers absolute control when it came to dealing with the housing crisis in California while at the same time making it appear that he’s a consumer’s best friend in Sacramento.   Because of Jerry Brown, California homeowners are now forced to beg for modifications from their mortgage servicer like some Dickensian orphan begging for food.

What’s Brown’s motivation for this? Connect the dots by looking at the pattern and remember what Jerry Brown’s one time campaign manager Mickey Kantor said, “Jerry has given hypocrisy a bad name.”

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