Documente Academic
Documente Profesional
Documente Cultură
of Foreclosures
Posted on January 24, 2012 by Neil Garfield
http://livinglies.wordpress.com/2012/01/24/alabama-appelate-courtdeals-death-blow-to-thousands-of-foreclosures/
So. 3d ___ (Ala. Civ. App. 2011). In Sturdivant, BAC Home Loans, LP
(BAC), initiated foreclosure proceedings on the mortgage
encumbering Bessie T. Sturdivants house before the mortgage had
been assigned to BAC. BAC then held a foreclosure sale at which it
purchased Sturdivants house, and the auctioneer executed a
foreclosure deed purporting to convey title to Sturdivants house to
BAC. BAC was assigned the mortgage the same day as the foreclosure
sale. Thereafter, BAC brought an ejectment action against Sturdivant,
claiming that it owned title to her house by virtue of the foreclosure
deed. After the trial court entered a summary judgment in favor of
BAC, Sturdivant appealed to the supreme court, which transferred her
appeal to this court. We held that BAC lacked authority to foreclose the
mortgage because it had not been assigned the mortgage before it
initiated foreclosure proceedings and that, therefore, the foreclosure
and the foreclosure deed were invalid. We further held that, because
the foreclosure and the foreclosure deed were invalid, BAC did not
acquire legal title to Sturdivants house through the foreclosure deed
and thus BAC did not own an interest in the house when it commenced
its ejectment action. We further held that, because BAC did not own
any interest in Sturdivants house when it commenced its ejectment
action, BAC did not have standing to bring that action and,
consequently, the trial court never acquired subject-matter jurisdiction
over the ejectment action. Because BAC did not have standing to bring
its ejectment action and the trial court never acquired jurisdiction over
the ejectment action, we held that the judgment of the trial court was
void, and we vacated that judgment. Moreover, because a void
judgment will not support an appeal, we dismissed the appeal.
In the case now before us, GMAC Mortgage, like BAC in Sturdivant, had
not been assigned the mortgage before it initiated foreclosure
proceedings. Consequently, under our holding in Sturdivant, GMAC
Mortgage lacked authority to foreclose the mortgage when it initiated
the foreclosure proceedings, and, therefore, the foreclosure and the
foreclosure deed upon which GMAC based it ejectment claim are
invalid. Moreover, under our holding in Sturdivant, because GMAC
Mortgage did not own any interest in the house, it lacked standing to
bring its ejectment action against the Pattersons. Because GMAC
Mortgage lacked standing to bring the ejectment action, the trial court
never acquired subject-matter jurisdiction over the ejectment action.
Accordingly, the judgment of the trial court is void and is hereby
vacated. Moreover, because a void judgment will not support an
appeal, we dismiss this appeal. Id.
JUDGMENT VACATED; APPEAL DISMISSED.
Pittman, Thomas, and Moore, JJ., concur.
Thompson, P.J., concurs in the result, with writing.
Bryan, J., dissents, with writing.
THOMPSON, Presiding Judge, concurring in the result.
2
40 Responses
1.
johngault, on January 25, 2012 at 11:36 pm said:
A law suit currently underway has alleged that a failure to record
an assignment, being identified as a material matter, violates
205.095.
This should be interesting.
This one I really like:
NRS 205.372 Mortgage lending fraud; penalties; civil action.
1. A person who is a participant in a mortgage lending
transaction and who:
. (e) Files or causes to be filed with a county recorder any
document that the person knows to include a misstatement,
misrepresentation or omission concerning a material fact,*
commits the offense of mortgage lending fraud which is a
category C felony and, upon conviction, shall be punished by
imprisonment in the state prison for a minimum term of not less
than 1 year and a maximum term of not more than 10 years, or
by a fine of not more than $10,000, or by both fine and
imprisonment.
The only question as to this ones application is are these
banksters
participants in a mortgage lending transaction. Mr. G
certainly thinks they are.
*self-assignment is bogus in the first place, plus they allege to
assign the note in all those assignments.
zurenarhh, you might want to look up statement against
interest to see if itll be of any value to you.
2.
johngault, on January 25, 2012 at 11:23 pm said:
3
10
16.
johngault, on January 24, 2012 at 6:21 pm said:
@joann re: your comment at 3:08, see my post re protection of
one class at the expense of another at sourceoftitle. Thats sure
as hey how I see it. No one wants to deal with those tax
consequences to the investors. They may think its not entirely
unfair because on info & belief, the IRS isnt sticking it to the
homeowner for debt relief, either.
But what such a lousy, for lack of better word, view of fairness
ignores is that, for one, homes are being taken in a manner
which is most accurately described as theft. Id rather pay the
tax on debt forgiveness if it ever came to that (which it probably
wouldnt).
17.
johngault, on January 24, 2012 at 6:06 pm said:
@joann re: trusts not mentioned in refis. Youre just full of good
insights. People with title commitments / policies from those days
could tell us. Whos listed as needing to be paid off? See
requirement page of title commitment. And significantly, WHO
issued the reconveyance (which some people refer to as a
release) of the old deed of trust, I do so wonder.
Anonymous, carie, where you hiding? What do your title
documents say? At least one of you never saw a reconveyance
after pay off, as I recall, when you refid.
But, dang, original loan probably showed MERS on dot. But still , I
wonder who executed the reconveyance. MERS (read servicer)?
Those titles are really messed up. You sure cant reconvey the
collateral if you have no interest in the debt it secures. Strikes
me as just plain criminal.
18.
iwantmynpv, on January 24, 2012 at 5:43 pm said:
@ joann, unfortunately AGs are also elected and at the mercy of
the party. Look no further than Newt Gingrich to see who has
been siphoning money off this scheme to defraud for years.
12
They are all one and the same. The judges are smarter than you
think. Most turned a blind eye because they are invested in some
of the companies being investigated. Second, many of the bank
(if you will) attorneys have practiced before these guys for
years. They all swap spit while burning an owl out in CA.
Actually, the Judge does not want to pit a pro se / per se
homeowner against one of their friends, so I found it is best to
get an attorney who bills by the hour to go in and you do the
research.
Dont ever let them withdraw their case without suing the law
firm, servicer, investor, fdic, fannie and freddie, if applicable and
most important file suit against the attorney that was standing
across the table so these guys start to get it too.
19.
E. Tolle, on January 24, 2012 at 5:43 pm said:
@johngault, I spoke (in person) to my AGs deputy about a
recordation filing that is fraudulent, and he simply shrugged his
shoulders. Its against another attorney in town at the mill. I
guess theyre a brotherhood.
20.
Enraged, on January 24, 2012 at 5:26 pm said:
@Johngault,
Your 726 makes a lot of sense and, when you think about it, its
like a reverse HELOC. Inother words, we are using exactly what
the banks did to get money out of us. Except that now, the bank
has to pay back.
I think its brilliant! And it would banks well for having sold
reverse mortgages to unsuspecting elderly who didnt have a
clue what they were in for.
21.
joann, on January 24, 2012 at 5:10 pm said:
13
iwantmynpv
Thanks excellent explanation its just that when you put a
single individual case together to defend your individual home
trying to get the judge to go from a to z you have to start from
what is in front of him and work backward (all the way to who
funded it at origination) and compel the documents (no
assignments or endorsements because no conveyance) and the
accounting money trail from who to who when it is especially
difficult in some states. Not a reason to give up even there
though especially not now. Even in non judicial judges are
starting to get it on appeal it seems.
There are always two conversations going on at the same time.
What is the reality and what part of it do you need to get across
to the judge and when in order to acheive an individual objective.
The Notes never left the Seller Bank, and they never intended
for them to leave the seller bank. They hold the assets on their
books and leverage them to the hilt, through the swaps. they
make the real money on the synthetic swaps. Exactly. Now how
to get that accross to AGs? Mainstream? 99%? Govt? Judges?
Different strokes. I cotinue to think we should try any way we
can. Already have too much salt in the wounds
22.
zurenarrh, on January 24, 2012 at 4:49 pm said:
johngault
I totally feel you. My case is now in its 3rd year and it has been
almost a year since the MSJ was filedstill undecided. The trial
has been postponed once already and is soon going to be
postponed again. All over one of these fraudulent assignments,
which, as I said, MERS has now admitted in no uncertain terms
that it couldnt do what it said it did.
Yet here we arewe shall go on to the end. Resistance is victory.
And I enjoyed your jealousy day post yesterday. I know exactly
what you mean!
23.
14
15
28.
johngault, on January 24, 2012 at 4:09 pm said:
@joann thats interesting, that 726 in CA. It is saying if you
have an interest in my house but you have not recorded it, and
Joe Brown gets a judgment against me, it is against your interest,
also. Joe did not have to name you in the suit against me or even
tell you about it to get that. The reason is because by your failure
to record your interest, Joe had no Notice of it, and therefore was
not bound to it. By my reading of this statute, Joe doesnt even
have to record his judgment to be ahead of you (and thats
pretty huge itself). Not sure;
people should record. Its all about Notice and this sure as heck
proves it.
No recorded assignment on your home and your other bills killing
you? Cut a deal with your unsecured creditors. Confess a
judgment (or several) with a reduced payoff on the debt and or
easier terms and get that sucker recorded or at least something
which leads to a duty of inquiry by the bankster et al.
Ill take you, credit card holder, from an unsecured creditor on
this 25k I owe you to a secured creditor on 10k at 5% by way of a
judgment, otherwise Im advised bk is my best bet, and by the
way, I need our agreement to include that you will report my
credit as paid as agreed and nothing but when I make these
payments as now agreed (and this should be okay because that
WILL be the new agreement) and it needs to be binding on your
successors and or assigns). They may make you agree to
reconfirm the 10k if you do end up filing bk. Dont know that
thats enforceable, tho. Probably not.
The bankster will have to pay off the 10k to get to his interest in
your home, and that is only after proper recordation of his
interest (the assignment). They wont like that at all because
someone is going to have to actually part witih some money, and
thats not in their m.o. They already have to do this with the IRS
generally, but the IRS has to do certain things when foreclosure
is involved. You can eliminate those certain things by confessing
judgement (with favorable terms)and you might want to hire
someone to do an offer in compromise first. If its enough money,
the bankster may not mess with it at all.
Dont do this without an attorney, but good luck getting one to
get it.
If more attorneys got it, it would be happening a lot just now. You
17
win pay off some debt you actually owe, creditors you would have
bkd but now because of the badly needed reduction in monthly
outlay get some of their money, if bankster forecloses anyway,
they have to pay that now secured debt which is ahead of their
undisclosed interest.
This is great. Check you state. Croak if its not the same because
its all about Notice.
Filing bk will not protect people from the IRS but you can see to it
that when your home is snarfed, your IRS and other debt goes
with it when there is no assignment of the deed of trust because
the bankster will have to pay it. Thats my take on the
consequences of that statute.
Im not an attorney and this is not legal advice. But, dang Jim,
wish wed known this before so many of our homes were snarfed.
29.
joann, on January 24, 2012 at 4:08 pm said:
johngault
Here is a question I wanted to ask you or anyone else that might
have the answer.
Why is it that when a securitized mortgage as almost all were
for the last 10 years or so was refinanced into another
securitized mortgage for the sake of the question assume 2003
or 4 or 5 was refied in 2006 or 7 or 8 the securitized trust is not
mentioned anywhere in the refi theres no assignment no refi
from trust to new lender. The substitution of trustee happens
as always done (Neil gives good reasons for this) in every new
mortgage transaction for the last 10 years or so and in
foreclosures but the trust only gets named in any recorded
documents when there is a foreclosure never in a refi?
30.
joann, on January 24, 2012 at 3:38 pm said:
@johngault:
18
21
22
23
37.
chris, on January 24, 2012 at 11:53 am said:
CA. is a state that has little regard for the Constitution or the
Democratic principles we struggle to hold onto. Most of our
elected officials do not hear the people and as PUBLIC SERVANTS
have no regard for what that position actually means to all our
legal citizens. People committing fraud, theft, tax evasion,
forgery, etcin any civilized/decent society would be punished
accordingly.
CA. is rampant with legislative process run amok, while banksters
and illegal squatters, get the benefit of taxpayers hard-earned
money and produce little to nothing in the way of benefits to the
CA. economy. It is a drain on every taxpayer/citizen in this
country and the reality of the situation is, we need to demand
this change, not just request it!
38.
zurenarrh, on January 24, 2012 at 11:25 am said:
Most of us, if not ALL of us, have assignments that were recorded
but DID NOT actually assign anything. I know I doMERS openly
admitted that fact in my case
39.
zurenarrh, on January 24, 2012 at 11:19 am said:
This is the GOOD kind of conservatismthe kind in which the laws
are upheld!
40.
Phred, on January 24, 2012 at 10:30 am said:
Yet in California the laws were changed to allow back-dating of
the effective date of an assignment. Then the judges came
along with an inane decision that loans with deeds of trust dont
24
Recent Posts
o
o
o
o
o
o
o
o
o
JPMorgan Chase & Co. Sued by John Hancock For MBS Fraud
Reuters: Calls Mount to Break Up Bank of America
AG Settlement is Not Done and Wont Do Anything.
Ethics Violation Against Northwest Trustee in Oregon
Too Big To Jail: Thousands Protest Around Nation Against Settlement
Proposed by Obama and AGs
Obamas State of the Economy Address
ALABAMA Appelate Court Deals Death Blow to Thousands
of Foreclosures
About Livinglies
Contact Us
Donate to Help Maintain Livinglies
Glossary & Guidelines
Mission Statement and Introduction: SINGLE TRANSACTION
News
NEWS AND BLOGS
Bank and Investment Bank News
Countrywide
Deutsch Bank
Indymac
Lehman Brothers Aurora BNC
First Alliance
Studies ConductedSuggested Readings
Top Articles & Product Picks
Top Articles & Pages for Last Week
Top Articles & Pages Last Month
Top Articles & Pages of the Year: 2011
Top Articles & Pages of All Time
Events
Submit an Event
Foreclosure Defense Forms
CAUSES OF ACTION AGAINST ALL OR ANY DEFENDANTS
TITLE AGENT LIABILITY FOR ERRORS AND
OMISSIONS AND TITLE INSURANCE
25
26
Attorneys
Attorney Network Expands to Over 150 Lawyers in 37 States
The Evolving Mortgage Audit and Analysis Process
LAWYER-CLIENT JOB FAIR BY TELECONFERENCE
***SPREAD THE WORD***
Find a Lawyer that Gets It
27