Supporting, Informing & Connecting People in Foreclosure
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Many Informative Videos found here:
"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."
"but there might still be a damages remedy against the parties who wrongfully foreclosed."
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:
equitable estoppel and equitable tolling http://www.ca6.uscourts.gov/opinions.pdf/15a0158n-06.pdf
https://en.wikipedia.org/wiki/Equitable_tolling It has been held that equitable tolling applies principally if the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his or her rights.
AND ... Federal Law TRUMPS state law almost always
The federal court MUST honor state common law when deciding state law issues:
Challenge to Jurisdiction
https://ricoconsultingattorney.wordpress.com/2014/10/16/plaintiff-c... Section 1964 (c).
DENIAL OF RIGHTS FOR DUE PROCESS OF LAW
CRIMINAL FRAUD http://legislature.mi.gov/doc.aspx?mcl-767-24
(5) An indictment for false pretenses involving real property, forgery or uttering and publishing of an instrument affecting an interest in real property, or mortgage fraud may be found and filed within 10 years after the offense was committed or within 10 years after the instrument affecting real property was recorded, whichever occurs later.
(8) The extension or tolling, as applicable, of the limitations period provided in this section applies to any of those violations for which the limitations period has not expired at the time the extension or tolling takes effect.
The foreclosing entity must hold the mortgage
at the time of the notice and sale because an attempt to
foreclose prior to a valid assignment of the mortgage is a
“structural defect that goes to the very heart of defendant's
ability to foreclose by advertisement.” Id. at 647 (quoting
Davenport v. HSBC Bank USA, 739 N.W.2d 383, 384–85
LAW FIRM FOUND LIABLE UNDER FDCPA IN MICHIGAN
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.
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.
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.
FINANCIAL INSTITUTIONS REFORM, RECOVERY AND ENFORCEMENT ACT OF 1989
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:
FRAUD IN THE FACTUM/INDUCEMENT used in predatory lending: http://en.wikipedia.org/wiki/Fraud_in_the_factum
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.
565.41 Discharge of mortgage; payment of filing fee by mortgagee; date of discharge.
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.
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
The Uniform Commercial Code forbids foreclosure of the mortgage unless the creditor possesses the properly-negotiated original promissory note.
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.
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.”
§ 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.
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 ...