Foreclosure Hamlet

Supporting, Informing & Connecting People in Foreclosure

SUE YOUR MILL ... (w/case law and def.)

                                            LOANS DESIGNED TO FAIL

It is now more than evident that subprime loans, or any mortgage loans, were designed, or had no option but, to fail so that money could be made throughout the process by all involved then finally on insurance covering the REMIC, based on original loan amount, as well as CDS's (credit default swaps) the property retained and sold once more into the scam. "Gee Mom .. all the kids were doing it" is hardly an excuse and I urge everyone whether still in your home and fighting or wrongfully/illegally foreclosed to read what is here and take action against those who have caused you harm.

EXAMPLE:  http://www.foreclosurehamlet.org/profiles/blogs/why-do-they-want-to...

 

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                                            http://www.lawguru.com

                                            http://www.lawqa.com/   

WHAT TRANSPIRED:   http://en.wikipedia.org/wiki/Financial_crisis_of_2007%E2%80%932010

IMPORTANT READ TO UNDERSTAND HOW YOU WERE TAKEN ADVANTAGE OF BY THE FINANCIAL SERVICES INDUSTRY, ET. AL., THE BANKS AND THEIR ATTORNEYS.

Then see here, UNCONSCIONABILITY : http://en.wikipedia.org/wiki/Unconscionability  

PBS ... FRONTLINE... THE UNTOUCHABLES :

http://video.pbs.org/video/2327953844 

MONEY, POWER AND WALL STREET SERIES ... plus

http://www.pbs.org/wgbh/pages/frontline/money-power-wall-street/

CREDIT DEFAULT SWAPS, etc,

http://www.pbs.org/wgbh/pages/frontline/oral-history/financial-cris...

                                          

Mortgage Fraud - Part 1 of 6 - Dateline NBC:

http://www.youtube.com/watch?v=yDb_Zhry-IY&feature=relmfu

Full coverage 60 Minutes on the financial crisis:

http://www.cbsnews.com/8334-504803_162-57418062-10391709/full-cover...

For a broader understanding of what transpired and continues to this day see here:

http://www.bloomberg.com/video/72756316-michael-burry-profiled-bloo...

Foreclosure Mill Fraud Busted.  How MILLs are making money:

http://www.youtube.com/watch?v=E6JEgYs8A-Q&feature=related

Homeowners, advocates want bank reps jailed for foreclosure fraud:

http://www.cbsatlanta.com/story/19465592/homeowners-advocates-want-...

Survey of State Foreclosure Laws:

http://www.nclc.org/images/pdf/foreclosure_mortgage/state_laws/surv...

Crime Pays :

http://www.aljazeera.com/programmes/insidestoryamericas/2013/01/201... 

 

THEN ... take a look at these government reports:

Financial Crisis Inquiry Commission (FCIC) reported its findings in January 2011. In briefly summarizing its main conclusions the Commission stated: "While the vulnerabilities that created the potential for crisis were years in the making, it was the collapse of the housing bubble—fueled by low interest rates, easy and available credit, scant regulation, and toxic mortgages— that was the spark that ignited a string of events, which led to a full-blown crisis in the fall of 2008. http://en.wikipedia.org/wiki/Financial_Crisis_Inquiry_Commission#Co...

http://www.gpo.gov/fdsys/pkg/GPO-FCIC/pdf/GPO-FCIC.pdf

Wall Street and the Financial Crisis: Anatomy of a Financial Collapse is a report issued on April 13, 2011 by the United States Senate Permanent Subcommittee on Investigations. The 639 page report was issued under the chairmanship of Senators Carl Levin and Tom Coburn, and is colloquially known as the Levin-Coburn Report. After conducting “over 150 interviews and depositions, consulting with dozens of government, academic, and private sector experts” found that “the crisis was not a natural disaster, but the result of high risk, complex financial products, undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street.” [1] In an interview, Senator Levin noted that “The overwhelming evidence is that those institutions deceived their clients and deceived the public, and they were aided and abetted by deferential regulators and credit ratings agencies who had conflicts of interest.”

http://en.wikipedia.org/wiki/Wall_Street_and_the_Financial_Crisis:_...

http://www.hsgac.senate.gov//imo/media/doc/Financial_Crisis/Financi...

 

The government knew and knows all yet HO's are still being wrongfully/illegally/fraudulently foreclosed and nobody, or very few indeed, are being brought to task and put in jail. IT IS THE FORECLOSURE MILLS AND ATTORNEYS WHO ARE EMPLOYED BY THEM WHO ARE AIDING AND ABETTING FRAUD IN CONSPIRACY WITH THE BANKS THAT MAKE THIS THEFT OF THE AMERICAN PEOPLE POSSIBLE !!!  

Real Estate Settlement Procedures Act:

http://en.wikipedia.org/wiki/Real_Estate_Settlement_Procedures_Act

Truth in Lending Act:

http://en.wikipedia.org/wiki/Truth_in_Lending_Act

Home Ownership and Equity Protection Act:

http://preventingforeclosure.org/foreclosure-rights/home-ownership-...

 

The following article gives explanation of securitization and how predatory lending played a pivotal role in the ongoing housing dilemma.  Further here, I have provided both law and case law that may help you understand how you may have been harmed, save your home and/or bring suit under various causes of action to those who have caused you harm. This blog is intended to be informative and helpful to those seeking legal counsel or presenting pro se/in pro per in state or federal court. Should you find anything mentioned here pertinent to your situation please google the subject for more information and case law decision. I continually add to this blog and repost when I do.

http://www.msfraud.org/law/lawarticles/PREDATORYSTRUCTUREDFINANCE.pdf

FEDERAL RESERVE REPOSITORY OF FINANCIAL DATA (BANK HISTORY M&A)

http://www.ffiec.gov/nicpubweb/nicweb/InstitutionHistory.aspx?parID...

 

GO FEDERAL ... ARTICLE III OF THE UNITED STATES CONSTITUTION.

http://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Con...

http://www.law.cornell.edu/constitution/articleiii/ 

"STANDING is an Article III jurisdictional issue. It deals with injury in fact first of all. And I can't imagine anybody better than the party that says they are entitled to lawful possession of the house because something was wrong with the foreclosure process. And even one better than that, to actually establish injury in fact. In fact, they are probably the only people in a case like this who could do it."

"So they are late, and they are later than in most other cases where I've applied this. But from an Article III perspective, from a pure constitutional standing perspective, I don't think that matters."

"but there might still be a damages remedy against the parties who wrongfully foreclosed."

http://msfraud.org/LAW/Lounge/Bocardo-v-SPS-Fannie_unconstitutional...

The Supreme Court has made it clear that the burden of establishing standing rests on the plaintiff./5/ At each stage of the litigation—from the initial pleading stage, through summary judgment, and trial—the plaintiff must carry that burden./6/ Standing must exist on the date the complaint is filed and throughout the litigation./7/ Moreover, standing cannot be conferred by agreement and can be challenged at any time in the litigation, including on appeal, by the defendants or, in some circumstances, by the court sua sponte./8/ Finally, plaintiffs must demonstrate standing for each claim and each request for relief./9/ There is no “supplemental” standing: standing to assert one claim does not create standing to assert claims arising from the same nucleus of operative facts./10/

DISMISSALS DUE TO LACK OF STANDING ...  see here for your state:  

http://msfraud.org/LAW/Lounge/Standing.html   

http://federalpracticemanual.org/node/19

http://www.msfraud.org/law/lounge/Standing.html

www.lawyerdude.netfirms.com/void.html">http://www.thelawyerdude.com/www.lawyerdude.netfirms.com/void.html

AND ... Federal Law TRUMPS state law almost always

http://en.wikipedia.org/wiki/Supremacy_Clause

http://en.wikipedia.org/wiki/Federal_preemption

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_U.S._Const...

http://www.oyez.org/cases/2000-2009/2006/2006_05_1342 

http://www.chadbourne.com/files/Publication/41634f55-aca8-4dc1-8dae...

http://www.fclr.org/fclr/articles/html/2010/baker.pdf

The federal court MUST honor state common law when deciding state law issues:

http://en.wikipedia.org/wiki/Erie_doctrine

Challenge to Jurisdiction

http://www.abodia.com/law/files/Challenge-to-Jurisdiction.htm

http://homeequitytheft-cases-articles.blogspot.com/2009/02/subject-...  

 

FEDERAL FAIR DEBT COLLECTION PRACTICES ACT:

In addition to common law theories, most states have Unfair or Deceptive Trade Practices statutes modeled off the Federal Trade Commission Act which may govern predatory mortgage lending practices and terms. Sometimes called “little FTC Acts” these statutes give consumers a private cause of action allowing them to assert claims or defenses against lenders that violate recognized trade standards. Most importantly, these statutes typically treat federal trade commission regulations and opinions as presumptive evidence of a deceptive or unfair trade practice. Thus, the rules and standards used by the FTC in its high profile cases against the largest predatory lenders are available through private state causes of action in some jurisdictions against some types of lenders.

The primary federal statute governing abusive practices in debt collection is the federal Fair Debt Collection Practices Act (“FDCPA”). The statute also includes disclosure provisions, such as a requirement that debt collectors give consumers written validation and verification of the debt in order to prevent collection of debts not actually owed. The statute is enforced by the Federal Trade Commission, banking regulators, and a private right of action allowing consumers to sue for statutory punitive damages, costs, and attorney’s fees.

http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

LAW FIRM FOUND LIABLE UNDER FDCPA IN MICHIGAN

http://stopforeclosurefraud.com/2013/02/17/mellentine-v-ameriquest-...

 

FEDERAL RULES OF CIVIL PROCEDURE

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

http://www.law.cornell.edu/rules/frcp/

 

FEDERAL MAIL AND WIRE FRAUD LAWS MAY BE USED

Federal mail and fraud laws are used in a variety of cases, such as bank, healthcare, mortgage, pension, and securities fraud. Although more specific laws may also apply in some cases, prosecutors use mail and wire fraud laws in part because the courts are very familiar with them.  These laws can be used to charge fraud if (1) a federal service was used, and (2) there was a plan to defraud.  According to these requirements, anyone who uses a letter, text message, email, or phone call to further a plan that may involve fraud can be charged witih mail or wire fraud.

http://www.avvo.com/legal-guides/ugc/federal-mail-wire-fraud-laws

http://www.fas.org/sgp/crs/misc/R41930.pdf

http://www.shouselaw.com/federal-wire-fraud.html 

 

CALIFORNIA FEDERAL DISTRICT TRIAL COURT UPHOLDS CLAIMS FOR IMPROPER ASSIGNMENT, ACCOUNTING, UNFAIR PRACTICES:   In an extremely well-written and well reasoned decision Federal District Court Judge M. James Lorenz denied the Motion to dismiss of US Bank on an alleged WAMU securitization that for the FIRST TIME recognizes that the securitization scheme could be a sham, with no basis in fact.

http://livinglies.wordpress.com/2012/08/02/ca-trial-court-upholds-c...

 

FINANCIAL INSTITUTIONS REFORM, RECOVERY AND ENFORCEMENT ACT OF 1989

http://www.fdic.gov/regulations/laws/rules/8000-3100.html

The new working group will pursue both criminal and civil wrongdoing, including false statements, mail and wire fraud, and failure to comply with the Financial Institutions Reform, Recovery and Enforcement Act of 1989, passed in the wake of the savings and loan crisis. (c)  VIOLATIONS TO WHICH PENALTY IS APPLICABLE: This section applies to a violation of, or a conspiracy to violate-- (1) section 215, 656, 657, 1005, 1006, 1007, 1014, or 1344 of Title 18; or (2) section 287, 1001, 1032, 1341 or 1343 of Title 18 affecting a federally insured financial institutions.  http://www.law.cornell.edu/uscode/text/18  or http://www.law.cornell.edu/uscode/text/18/part-I/chapter-63

FINANCIAL PROMISE MUST BE IN WRITING: 

(2) An action shall not be brought against a financial institution to enforce any of the following promises or commitments of the financial institution unless the promise or commitment is in writing and signed with an authorized signature by the financial institution:

http://legislature.mi.gov/doc.aspx?mcl-566-132  

 

FRAUD IN THE FACTUM/INDUCEMENT used in predatory lending: http://en.wikipedia.org/wiki/Fraud_in_the_factum

UNCLEAN HANDS :  http://en.wikipedia.org/wiki/Unclean_hands

SLANDER OF TITLE:  http://en.wikipedia.org/wiki/Slander_of_title

UNJUST ENRICHMENT: http://en.wikipedia.org/wiki/Unjust_enrichment 

 

BANKS, AS THEY ARE ESSENTIALLY COLLECTING DEBT FOR THEMSELVES OR IN THEIR SERVICING DUTIES FOR OTHERS, ARE ALSO DEBT COLLECTORS AND SUBJECT TO LAW UNDER THE FEDERAL FDCPA:

The second preliminary issue is whether defendant may be considered a debt collector under the Rosenthal Act and FDCPA.  Plaintiff’s complaint alleges defendant is debt collector because they “regularly attempt to collect debts alleged to be due another.”  According to the Rosenthal Act, “the term ‘debt collector’ means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.”  Civ. Code § 1788.2.  The FDCPA similarly states, “[t]he term ‘debt collector’ means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”  15 U.S.C. § 1692A(6).  Defendant only cites cases relating to foreclosures as authority to show they are not debt collectors.  Whether a foreclosure is debt collection is irrelevant.  This Court finds that defendant is sufficiently pleaded as a debt collector.

 

FORECLOSURE MILLS/ATTORNEYS OWE HOMEOWNERS/BORROWERS A DUTY 

Two more things. The first has to do with the duty of care that attorneys owe certain non clients. In the present context this would be the foreclosure mill and the HO's. Then that an attorneys breach of ethics resulting in harm will find him/his firm liable for damages.  As in all lawsuits a number of specific factors must be present and provable before this strategy might be employed. One main factor here is if the HO has retained counsel or is in pro per/pro se.

See here Section 1.1:410 in brief ... a non-client may be able to show that an attorney owed him or her an independent fiduciary duty. To claim breach of fiduciary duty, there must be a situation in which the non- client reasonably reposed faith, confidence and trust in the attorney�s advice. 1.1:410 Duty of Care to Certain Non-Clients http://www.law.cornell.edu/ethics/mi/narr/MI_NARR_1_01.HTM

Then there is ... The annotation on "Attorney's Liability to One Other Than Immediate Client, For Negligence in Connection With Legal Duties" 61 ALR 4th 615 lists four different bases for liability to others than the person retaining the lawyer: More can be found here ... http://www.expertlaw.com/library/practice_management/third_parties....

and More on Attorneys Duty To Non Client http://www.nesl.edu/userfiles/file/lawreview/vol37/1/cheng.pdf and   http://lawyerquality.com/article_non-client_suits.html  http://www.lacba.org/showpage.cfm?pageid=2134  http://www.leagle.com/xmlResult.aspx?xmldoc=1981616107MichApp509_15...

http://books.google.com.sa/books?id=Dw1p4T3KTxMC&pg=PA110&l...

 

FORECLOSURE MILLS ARE DEBT COLLECTORS ... SUE EM FOR UDAP !!!

SUE EM FOR FRAUD AND PRESENTING FRAUD TO THE COURT !!! 

SUE EM FOR AIDING AND ABETTING THE BANKS FRAUD !! See here recent federal case law showing mills as DEBT COLLECTORS

http://scholar.google.com/scholar_case?   case=14725595886762813517...

http://scholar.google.com/scholar_case case=5190914345956790666&...

http://caselaw.findlaw.com/us-6th-circuit/1604483.html

6th Circuit Win Against Predatory Mill

http://www.insidecounsel.com/2012/07/18/regulatory-liability-for-fo...

http://ohiofraudclosure.blogspot.com/2012/06/us-court-of-appeals-sm... 

 

FRAUD, SILENT FRAUD AND INNOCENT MISREPRESENTATION

In most fraud cases, there is active misrepresentation by the defendant. In some, the misrepresentation occurs through the defendant's silence on a key issue.

http://www.expertlaw.com/library/business/fraud.html#3

Extrinsic fraud is fraud that "induces one not to present a case in court or deprives one of the opportunity to be heard [or] is not involved in the actual issue

http://en.wikipedia.org/wiki/Extrinsic_fraud

Intrinsic fraud is an intentionally false representation that goes to the heart of what a given lawsuit is about, in other words, whether fraud was used to procure the transaction

http://en.wikipedia.org/wiki/Intrinsic_fraud

 

THE FRAUD EXCEPTION TO THE ROOKER FELDMAN DOCTRINE

District Court losers allowed to appeal in Federal court in the presence of fraud, deception, accident, mistake, or "other gross procedural error" a federal court may declare the judgments of a state court "void ab initio."78

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1971419

ASSIGNMENT (OR NOT) BY OPERATION OF LAW ... KIM v JPMORGAN CHASE BANK, NA

By contrast, in giving meaning to the phrase “operation of law,” we have carefully considered decades-old precedent from this Court, as well as consulted a legal dictionary. We defer to these established authorities for the proposition that a transfer that takes place by operation of law is one that occurs unintentionally, involuntarily, or through no affirmative act of the transferee.

FURTHER

The dissent opines that nothing exists that could be recorded in the chain of title
evidencing the assignment of interest. This is untrue. For example, defendant could file
a copy of the P&A agreement with the register of deeds.

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Op...

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Oral-Argume...  

 

MILL FOUND GUILTY OF FRAUD

In this fraud and abuse of process case, plaintiff Cynthia Howard appeals the trial court’s

grant of defendant Trott & Trott, PC and Donald L. King’s motion for summary disposition

under MCR 2.116(C)(7) (statute of limitations), and MCR 2.116(C)(8) (failure to state a claim

on which relief may be granted). We affirm in part and reverse in part and remand.

http://www.michbar.org/opinions/appeals/2012/091112/52629.pdf

Flynn v Korneffel ... case law regarding FRAUD (note case citations)

"Specifically, we must decide whether the land contract vendees in default were prohibited by fraud from redeeming the property in question". Marble v Butler ... "Before the expiration of the redemption period, the vendor refused to reveal the amount remaining due on the land contract and failed to furnish an abstract of the property in accordance with the contract. Further, the vendee attempted to tender the entire balance due under the contract, and the vendor refused to accept the payment and execute a deed.27  

http://www.leagle.com/xmlResult.aspx?xmldoc=1996796547NW2d249_1786....  

 

The Classic example of TORTIOUS INTERFERENCE incurs when one party induces another party to breach a contract with a third party, in circumstances where the first party had no privledge to act as it does and acts with knowledge of the existence of the contract.  Such knowledge is termed tortious inducement of breach of contract.  So ... if your servicer or mill told you to stop paying to qualify for HAMP, etc. such could very well qualify.  Or, as in my case, where the mill refused my legally tendered offer to pay in full.

http://en.wikipedia.org/wiki/Tortious_interference

 

REFUSAL OF PAYMENT IN FULL

"A cause of action exists on behalf of a damaged mortgagor when, in conformity with the terms of his note, he offers to the mortgagee full payment of the balance of the principal and interest, and the mortgagee refuses to present the note and mortgage for payment and cancellation."
The court, on page 165, cites 59 Corpus Juris Secundum, 746, Section 474, where it is provided:
"A right of action exists when the debt secured has been paid in full or tendered or all other legal conditions have been fulfilled and plaintiff is entitled to the release or satisfaction demanded or refused."
The court holds that in some states the obligation to satisfy a mortgage when all the obligations of the mortgagor are met is provided for by statute. The court also said that in Ohio no such statute has yet been enacted. On the authority of Dunitz v. Satovaky, 243 Mich. 423, 220 N. W., 717, and Rosedofsky v. Corosa,93 N.H. 394. 42 A.2d 740, mortgagees are required under the common law to reconvey title transferred by mortgage or release the lien of the mortgage when the obligations secured have been discharged, and to refuse to do so constitutes an actionable tort permitting the mortgagor to recover all damages proximately resulting from such wrongful act.
THEN : case law involving other situations requiring tender of payment holds that valid tender is unnecessary where plaintiff is ready, willing and able to tender, but defendant, by his acts or words, shows that tender would not be accepted. Hanesworth v Hendrickson, 320 Mich. 577; 31 N.W.2d 726 (1948), Ranck v Springer,333 Mich. 671; 53 N.W.2d 678 (1952), Frakes v Eghigian,358 Mich. 327; 100 N.W.2d 297(1960). Consequently, in the instant case, if plaintiffs' factual allegations indicate that tender was not made because defendants prevented it or indicated they would not accept it, plaintiffs' complaint states a cause of action. Because plaintiffs' complaint includes allegations that defendants did not accept payment and that such conduct was wrongful, we find that plaintiffs' pleadings do state a claim upon which relief can be granted.
The law of tender is replete with cases which depart from the generalization that tender is the payment in hand of legal currency to explore the fact-laden paths of the litigants' course of dealing. It is well established in contractual relationships that actual delivery of legal tender is not required where there is a course of dealing which justifies the debtor into believing that some other means (e.g., mailing) and form of tender (e.g., personal check) will suffice.
MCL 600.5744(6); MSA 27A.5744(6) establishes that a writ of restitution shall not issue if the amount of the judgment for possession "is paid to the plaintiff" within the time provided. We note the absence of any qualifying language in this section as to who is to pay the plaintiff or how the plaintiff is to be paid.
 
Michigan Law and Case Law regarding redemption inclusive of remedial status.
We reach this conclusion because the summary proceedings statute is remedial in nature and should be construed liberally. See Birznieks v Cooper,405 Mich. 319, 330-332; 275 N.W.2d 221 (1979).1
Plaintiff's contention that the statute should be read to necessitate payment by the defendants only, by means of an instrument made out only in favor of the plaintiff and placed only in the hands of the plaintiff, amounts to an unacceptably narrow construction of the statute. Such a construction is inconsistent with the purpose of the redemption provisions and is antithetical to the liberal construction by which remedial statutes are to be applied.
THE MICHIGAN CONSUMER PROTECTION ACT IS VIRTUALLY DEAD  https://www.michbar.org/journal/pdf/pdf4article2070.pdf
IN ITS STEAD IS MICHIGAN REGULATION OF COLLECTION PRACTICES Act 70 of 1981  http://legislature.mi.gov/doc.aspx?mcl-act-70-of-1981 
Statute of Limitations  http://legislature.mi.gov/doc.aspx?mcl-600-5807  Damages for breaches of contract; specific performance; fiduciary bonds; deeds; mortgages; surety bonds; appeal bonds; public obligations. (4) The period of limitations is 10 years for actions founded upon covenants in deeds and mortgages of real estate.
MORTGAGES; REDEMPTION; EXTENSION: Foreclosed Michigan mortgagor can validly agree with foreclosure sale purchaser to extend term of statutory redemption period, even after the period had terminated  http://dirt.umkc.edu/OCT2004/DD_10-28-04  
EXCUSABLE NEGLECT : Excusable neglect refers to a legitimate excuse for the failure to take some proper step at the proper time.
There are many cases showing partial and misleading statements as fraud: “The doctrine is settled in this State that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby; citing Holcomb v. Noble, 69 Mich 396 (headnote 3).” Busch v. Wilcox (syllabus), 82 Mich 315.
 
“Designed partial statements which deceive, and concealment of facts such as to make those declared partial and misleading, are fraudulent in law.” Kenyon v. Woodruff (syllabus), 33 Mich 310.
 
"When action is brought to recover for false and fraudulent representations made by one party to another in a transaction between them, any representations which are false in fact and actually deceive the other and are relied on by him to his damage are actionable, irrespective of whether the person making them knew them to be false or acted in good faith in making them, when the loss of the party deceived inured to the benefit of the other. Holcomb v. Noble, 69 Mich. 396; Busch v. Wilcox, 82 Mich. 315; Aldrich v. Scribner, 154 Mich. 23 (18 LRA NS 379); Hubbard v. Oliver, 173 Mich. 337; Bartholomew v. Walsh, 191 Mich. 252; Mulheron v. Henry S. Koppin Co., 221 Mich. 187; Bucannan v. Raymond, 224 Mich. 462; 26 CJ, pp 1108, 1109; 12 RCL, pp 335, 336
Mortgage Loans And UCC: When Article 3 Applies and When Article 9 Applies:

The Uniform Commercial Code forbids foreclosure of the mortgage unless the creditor possesses the properly-negotiated original promissory note.

http://wsulawreview.org/DWhaley.pdf

 

AIDING AND ABETTING:

It is a long standing common law principle that a business or individual can be held liable for AIDING and ABETTING the wrongful acts of another. The Restatement of Torts, Second suggests that, “[f]or harm resulting to a third person from the tortious conduct of another, a person is liable if he . . . (b) knows that the other’s conduct constitutes a breach of a duty and gives substantial assistance or encouragement to the other so to conduct himself.” The alleged aider-abetter itself need not owe a duty of care to the victim. And most courts agree that the alleged aider-abetter need not reap a personal financial benefit from the wrongful conduct to be liable. But many courts consider financial gain by the alleged aider-abetter as evidence of knowledge of and/or assistance to the tortious behavior. Moreover, the alleged aider and abetter need not even posses a wrongful intent, provided that she knows the conduct in question is tortious. Courts are also amenable to use of the common law doctrine of aider abetter liability to enforce statutes which do not by their own terms define or contemplate liability for aiding and abetting. While most aider-abetter liability cases involve allegations of fraud, some courts have been receptive to applying aider-abetter liability to unfair and deceptive trade practice claims as well.

http://www.michbar.org/consumer/pdfs/may02.pdf

 

In the instant suit, the Morganroths sued only DeLorean's lawyers in the United States District Court for the District of New Jersey. n1 Count I of the complaint alleges that defendants conspired to commit fraud. It alleges that defendants agreed to make misrepresentations and omissions to defraud the plaintiffs; they took tortious steps in furtherance of those agreements, causing actual and consequential damages including attorneys' fees and expenses involved in recovering on the Michigan judgment. In Count II, the Morganroths claim that defendants knowingly aided and abetted DeLorean's acts of fraud and concealment  [*10]  for the purpose of hindering plaintiffs' efforts to enforce the judgment, causing actual and consequential damages. In Count III, plaintiffs assert that defendants themselves committed fraud through their knowing material misrepresentations, fraudulent concealment, and wrongful withholding of information, and that these acts and omissions proximately caused plaintiffs actual and consequential damages.

http://www.uniset.ca/lloydata/css/331F3d406.htm

COLLUSION:  http://thelawdictionary.org/collusion/

A deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right Cowell

Law Dictionary: http://thelawdictionary.org/collusion/#ixzz2sl86soAV

 

CONSPIRACY:

A second possible avenue of asserting liability for concerted wrongdoing in predatory lending securitization is civil coconspirator liability. Generally a civil conspiracy is defined as “a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages. You see ... the bank NEEDED the mill to bring the fraud to the court as it was "not competant" to do so itself.

Other decisions have denied dismissal of civil coconspirator liability claims for range of mortgage lending industry participants including brokers, home sellers, lenders, appraiser, and attorneys.

This above is contained in the Abstract by Chris Peterson at the start of this blog.  Page 62.

The banks may have perpetrated the fraud ... BUT ... it was the banks attorney/FORECLOSURE MILL that presented it to the court and as attorneys were/are bound to perform due diligence and knew or should have known the banks fraud before presentation to the court. As such all should be disbarred, disgorged of all illegally gained funds and PUT IN JAIL while made to rectify and find restitution for those that they have harmed !!!( after being found guilty in a court of law ... which, goes without saying)

Claims against attorneys for aiding and abetting a breach of fiduciary duty or conspiring to breach a fiduciary duty present different and more difficult challenges for defense counsel than a more traditional legal malpractice case.

The four elements of a conspiracy, namely: (1) a corrupt agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury.”

http://en.wikipedia.org/wiki/Conspiracy_(civil)

http://en.wikipedia.org/wiki/Conspiracy_(crime)

http://www.mccarter.com/files/Publication/6bbc7d15-773b-4c47-a64a-2...

http://www.paragonbrokers.com/media-hub/2011/conspiring-to-commit-o...

 

§ 39. PROFIT DERIVED FROM OPPORTUNISTIC BREACH:

(1) If a breach of contract is both material and opportunistic, the injured promisee has

a claim in restitution to the profit realized by the defaulting promisor as a result of the

breach. Liability in restitution with disgorgement of profit is an alternative to liability for

contract damages measured by injury to the promisee.

http://apps.americanbar.org/buslaw/newsletter/0081/materials/pp5.pdf 

 

FEDERAL TRADE COMMISIONS ACT:

Section 5

Appendix: Statement on Unfair or Deceptive Acts or Practices by State-Chartered Banks where it ‘‘causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.’’ 8 A representation, omission, or practice is deceptive if it is likely to mislead a consumer acting reasonably under the circumstances and is likely to affect a consumer’s conduct or decision regarding a product or service. Moreover, banks that either affirmatively or through lack of oversight permit a third-party debt collector acting on their behalf to engage in deception, harassment, or threats in the collection of monies due may be exposed to liability for approving or assisting in an unfair or deceptive act or practice. http://www.federalreserve.gov/boarddocs/supmanual/cch/ftca.pdf 

The IRS ... 

The Mortgage Forgiveness Debt Relief Act and Debt Cancellation http://www.irs.gov/Individuals/The-Mortgage-Forgiveness-Debt-Relief...

 

 

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Comment by Diane on May 23, 2013 at 11:30am

Numerous North Carolina Judges are as corrupt as the Banks.   But of course, the Banks own the State of North Carolina to begin with.

Judges are now barring pro se victims from fighting illegal foreclosure by means of Gate-Keeper Orders.    The very Judges who took an oath to defend the citizens of the State, are now denying citizens access to the court.    I know of one lady that complained about the lack of due process and the Judge had her locked up for contempt of court.

The Judges know the Banks are forging documents and commiting fraud upon the court.   And with all the news reports, the Judges know the general public is aware of what is going on.    So N.C. Judges' main purpose is to shut everyone up and keep foreclosure fraud cases out of their court room.

Comment by Ronald Litton on May 23, 2013 at 10:04am
Does anyone know of attorneys in Kansas that are capable and willing to sue one of the local foreclosure mills. We have been fighting Deutsche and Chase for 3 years and now the MILL has hired another attorney to handle the case. It seems that they are now fearful as we have gotten discovery that they screwed up. My attorney admits that they did and should not even filed a foreclosure. We have all of the normal forged docs from the infamous robo signer folks, backed dated docs, no docs etc.

However my attorney is squeamish about suing one of his bretheren aka another attorney. There certainly seems to be adequate reason to sue under FDCPA and Kansas credit laws as well fraud on the court etc.

But here in Kansas lawyers are birds of a feather. So I need someone not of the clan.
Comment by Darrell Kanka on April 11, 2013 at 6:05am

As you are from Texas and dealing with Barrett, etc. my suggestion is for you to contact JMC who is frequently here at the Hamlet.  He is also in Texas and is aware of the laws and the law firm. James McGuire can also be found at www.trilliondollarfubar.com

Comment by Wells Hell on April 11, 2013 at 2:07am

And the reason I'm posting here is because I suspect Wells Fargo's debt collection agency Barrett Daffin Frappier, Turner & Engle has created this sham  for the sole purpose to collect on their non-collectible debt. All the predetory, obscured and exaggerated fees they bring out the biggest claws to make sure they "win" and the homeowner "loses". 

The truth is that even if I had the money they want (40k) I would die before I paid them.  are you kidding me?  Sorry, no reward for any sociopath who intentionally deceives me or any other decent person ... just to steal their home and kick them out into homelessness.

Comment by Wells Hell on April 11, 2013 at 1:17am

I need some clarity from you guys   Please help.  My situation is that I’ve been notified that an foreclosure sale purportedly occurred last Nov. 6th and I'm SOL.   Yes, documents have been  sent, completed,  signed, notorized, and filed ... yada yaha  and to all besides me the foreclosure process occurred seeming without raising any other's suspicions on this transaction.

The claim is that my home was sold by my pretender lender, Wells Fargo through a non-judicial process (I'm in TX)  over to Freddie Mac.  The sale doesn't seem realistic to me, and if anything the property got transferred Freddie through smoke & mirrors.  But I'm not even convinced of that.  There is a substitute trustee deed that was filed in the county records about a week after the sale date.  Freddie sued to evict me, stating that deed as proof that thye have evidence of superior right of possession needed to win. 

Of course there are tons of details I have to show that something is not right here and basically  I'm not buying, esp if that deed filed is supposed to be the key evidence they are basing their case on.  I'm no expert but honestly I can't believe that would even be considered a legitimate document that can rob me of my 20 year homestead without raising an eyebrow.

Let me know if you think you can help me see through all this legal haze and if anyone knows of a local attorney in the Houston area that can be of some REAL help to me.   Telling me I need to get ready to move ASAP is of no help... it's only a copout to me.  If it's the truth then why am I not convinced??

 

 

Comment by Darrell Kanka on February 21, 2013 at 7:59am

That everyones situation is different I have provided law and case law that may apply in any given situation. This from researching my own case. While you will find case law included that won outright, contained in those that did and those that did not is judicial opinion that may bolster your specific argument. As for my own case I am still building my lawsuit from these bricks of law and mortar of fact that apply to my specific situation.  Everyday more case law is decided setting precedent that applies directly to my situation.  There is no silver bullet and it is up to you to become familiar with the law and case law that applies to your situation and jurisdiction.         

Comment by gregory on February 20, 2013 at 8:06pm

So the question I have for you is has any of this been proven to work?? Have you successfuly tried in a court any of your information?? I dont see your name on any court documents,why is that? There is lots of great info in all of this but it seems mostly unproven in a court.

Comment by Darrell Kanka on January 26, 2013 at 6:46am

I do not think that just subprime loans were designed to fail but as I had started this blog in reference to my loan that is the way it came out.  Most all, if not all, loans were securitized. Credit was extended with the knowledge that they would be included in a REMIC or other SPV which in turn would be insured against default (think bond insurance) and further included in CDS's.  Your mention of 5 times the value of the home is low.  I have seen reports of up to 30 times and depends what is included in your calculations. A HELOC would not automatically change the loan status from subprime to prime. In any event once the loan was put into the "system" it was insured for a minimum of face value and the property retained for resale. The banks could not lose.  When the insurers refused to cover the badly underwritten "toxic" mortgages and began to sue the banks ... the party was over.  The banks could no longer sell/move the "paper". 

Comment by Sharon Jones on January 25, 2013 at 9:18pm

Why do you think just "subprime" loans were designed to fail.  How about the "prime" loans with HELOCs based on nothing, declared "toxic" by the sales team at Countrywide.  That was the game - design a toxic product to recover 5 times the value of the home through various insurance policies.  They went from "sub-prime" to "Prime" with Helocs.  Pretty simple.

Comment by nancy amos on January 4, 2013 at 10:20pm

Mustang:

What is Wellborn under investigation for?

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