GMAC Residential Capital Lists 200-999 Creditors, Failing to Disclose Tens of Thousands of Homeowner Claims

By Daniel Edstrom
DTC Systems, Inc.

Note that the original article has been updated to fix my mistake of showing 299 creditors when the number of creditors listed on the Voluntary Petition was 200-999.  On April 13, 2011 the Board of Governors of the Federal Reserve System and the Federal Deposit Insurance Corporation issued a Cease and Desist Consent Order against Ally Financial Inc. fka GMAC LLC, Ally Bank fka GMAC Bank, Residential Capital LLC (and its direct and indirect subsidiaries) and GMAC Mortgage LLC.  During the period of 1/1/2009 to 12/31/2010, the Mortgage Servicing Companies completed 89,998 foreclosure actions, representing less than 4 percent of the Servicing Portfolio over such such time period.  View the attached Voluntary Petition below to see the number of creditors identified.   The regulators found the following:

WHEREAS, in connection with the process leading to certain foreclosures involving the Servicing Portfolio, the Mortgage Servicing Companies allegedly:

1. Filed or caused to be filed in state courts and in connection with bankruptcy proceedings in federal courts numerous affidavits executed by employees of the Mortgage Servicing Companies or employees of third-party providers making various assertions, such as the ownership of the mortgage note and mortgage, the amount of principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such knowledge or review;
2. Filed or caused to be filed in courts in various states and in connection with bankruptcy proceedings in federal courts or in the local land record offices, numerous affidavits and other mortgage-related documents that were not properly notarized, including those not signed or affirmed in the presence of a notary;
3. Litigated foreclosure and bankruptcy proceedings and initiated non-judicial foreclosures without always confirming that documentation of ownership was in order at the appropriate time, including confirming that the promissory note and mortgage document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party;
4. Failed to respond in a sufficient and timely manner to the increased level of foreclosures by increasing financial, staffing, and managerial resources to ensure that the Mortgage Servicing Companies adequately handled the foreclosure process; and failed to respond in a sufficient and timely manner to the increased level of Loss Mitigation Activities to ensure timely, effective and efficient communication with borrowers with respect to Loss Mitigation Activities and foreclosure activities; and
5. Failed to have adequate internal controls, policies and procedures, compliance risk management, internal audit, training, and oversight of the foreclosure process, including sufficient oversight of outside counsel and other third-party providers handling foreclosure-related services with respect to the Servicing Portfolio.

WHEREAS, the practices set forth above allegedly constitute unsafe or unsound banking practices;

The Cease and Desist Consent Order includes a Foreclosure Review, which calls for remediation to homeowners:

Foreclosure Review

3. (a) Within 45 days of this Order, GMAC Mortgage shall retain one or more independent consultant(s) acceptable to the Reserve Bank to conduct an independent review of certain residential mortgage foreclosure actions (including judicial and non-judicial foreclosures and related bankruptcy proceedings, and other related litigation) regarding individual borrowers with respect to the Servicing Portfolio. The review shall include actions or proceedings (including foreclosures that were in process or completed) for loans serviced by the Mortgage Servicing Companies, whether brought in the name of the Ally Bank, the Mortgage Servicing Companies, the investor, or any agent for the mortgage note holder (including MERS) that have been pending at any time from January 1, 2009 to December 31, 2010, as well as residential foreclosure sales that occurred during this time period (“Foreclosure Review”). The purpose of the Foreclosure Review shall be to determine, at a minimum:

(i) whether, at the time the foreclosure action was initiated or the pleading or affidavit filed (including in bankruptcy proceedings and in defending suits brought by borrowers), the foreclosing party or agent of the party had properly documented ownership of the promissory note and mortgage (or deed of trust) under relevant state law, or was otherwise a proper party to the action as a result of agency or other similar status;

(ii) whether the foreclosure was in accordance with applicable state and federal laws, including but not limited to, the Servicemembers Civil Relief Act and the U.S. Bankruptcy Code;

(iii) whether, with respect to non-judicial foreclosures, the procedures followed with respect to the foreclosure sale (including the calculation of the default period, the amounts due, and compliance with notice periods) and post-sale confirmation were in accordance with the terms of the mortgage loan and state law requirements;

(iv) whether a foreclosure sale occurred when the borrower had requested a loan modification or other loss mitigation and the request was under consideration; when the loan was performing in accordance with a trial or permanent loan modification; or when the loan had not been in default for a sufficient period to authorize foreclosure pursuant to terms of the mortgage loan documentation and related agreements;

(v) whether any delinquent borrower’s account was charged fees or penalties that were not permissible under the terms of the borrower’s loan documents, state or federal law, or were otherwise unreasonable. For purposes of this Order, a fee or penalty is “otherwise unreasonable” if it was assessed: (i) for the purpose of protecting the secured party’s interest in the mortgaged property, and the fee or penalty was assessed at a frequency or rate, was of a type or amount, or was for a purpose that was in fact not needed to protect the secured party’s interest; (ii) for services performed and the fee charged was substantially in excess of the fair market value of the service; (iii) for services performed, and the services were not actually performed; or (iv) at an amount or rate that exceeds what is customarily charged in the market for such a fee or penalty, and the mortgage instruments or other documents executed by the borrower did not disclose the amount or rate that the lender or servicer would charge for such a fee or penalty;

(vi) whether Loss Mitigation Activities with respect to foreclosed loans were handled in accordance with the requirements of HAMP, if applicable, and consistent with the policies and procedures applicable to the Mortgage Servicing Companies’ proprietary loan modifications or other Loss Mitigation programs, such that each borrower had an adequate opportunity to apply for a Loss Mitigation option or program, any such application was handled appropriately, and a final decision was made on a reasoned basis and was communicated to the borrower before the foreclosure sale; and

(vii) whether any errors, misrepresentations, or other deficiencies identified in the Foreclosure Review resulted in financial injury to the borrower or the owner of the mortgage loan.

(b) The independent consultant(s) shall prepare a written report detailing the findings of the Foreclosure Review (the “Foreclosure Report”). GMAC Mortgage shall provide to the Reserve Bank a copy of the Foreclosure Report at the same time that the report is provided to it. Simultaneously, a copy of the portion of the Foreclosure Report that addresses Ally Bank’s Servicing Portfolio shall be furnished to Ally Bank and the FDIC.

(c) Within 45 days of receipt of the Foreclosure Report, GMAC Mortgage shall submit to the Reserve Bank an acceptable plan to:

(i) remediate, as appropriate, errors, misrepresentations, or other deficiencies in any foreclosure filing or other proceeding;

(ii) reimburse or otherwise provide appropriate remediation to the borrower for any impermissible or otherwise unreasonable penalties, fees or expenses, or for other financial injury identified in paragraph 3 of this Order;

(iii) make appropriate adjustments for the account of Ally Bank, the GSEs, or any investor; and

(iv) take appropriate steps to remediate any foreclosure sale where the foreclosure was not authorized as described in paragraph 3.

(d) Within 60 days after the Reserve Bank accepts the plan described in paragraph 3(c), the Mortgage Servicing Companies shall make all reimbursement and remediation payments and provide all credits required by such plan, and provide the Reserve Bank with a report detailing such payments and credits.

4. Within 15 days of the engagement of the independent consultant(s) described in paragraph 3 of this Order, but prior to the commencement of the Foreclosure Review, GMAC Mortgage shall submit to the Reserve Bank for approval an engagement letter that sets forth:

(a) The methodology for conducting the Foreclosure Review, including: (i) a description of the information systems and documents to be reviewed, including the selection criteria for cases to be reviewed; (ii) the criteria for evaluating the reasonableness of fees and penalties under paragraph 3(a)(v); (iii) other procedures necessary to make the required determinations (such as through interviews of employees and third parties and a process for the receipt and review of borrower claims and complaints); and (iv) any proposed sampling techniques. In setting the scope and review methodology, the independent consultant may consider any work already done by Ally Financial, GMAC Mortgage, or other third-parties on behalf of Ally Financial or GMAC Mortgage. With respect to sampling techniques, the engagement letter shall contain a full description of the statistical basis for the sampling methods chosen, as well as procedures to increase the size of the sample depending on the results of initial sampling;

(b) the expertise and resources to be dedicated to the Foreclosure Review;

(c) completion of the Foreclosure Review and the Foreclosure Report within 120 days of the start of the engagement; and

(d) a written commitment that any workpapers associated with the Foreclosure Review will be made available to the Reserve Bank upon request.

Notices regarding this Cease and Desist Consent Order were allegedly sent to every homeowner who was in any stage of foreclosure from the period 1/1/2009 to 12/31/2010.  Why are they not being included as a creditor or claimant in GMAC’s bankruptcy?

Here is the Voluntary Petition for GMAC Residential Capital:  http://dtc-systems.net/wp-content/uploads/2012/05/1-RESCAP_Voluntary_Petition.pdf

Here is the Voluntary Petition for GMAC Residential Funding Corporation: http://dtc-systems.net/wp-content/uploads/2012/05/1-RFC_Voluntary_Petition.pdf

GMAC Residential Capital Declares Bankruptcy

By Daniel Edstrom
DTC Systems, Inc.

According to Residential Funding Corporation, GMAC was one of the largest entities securitizing loans in 2000.  This bankruptcy probably has an impact on nearly every single GMAC based loan or loan that was securitized by GMAC.  Many of the GMAC deals pledged the loans to the trusts but never actually perfected the transfer.  This could mean that your “lender”, “creditor” or “owner” of these loans is one of the many related entities of Residential Capital (RESCAP) – which may be a problem because they have probably been paid in full.  Many of these entities had a security interest in the money advanced to fund the loans, even though they were not the named lender.  Many of these entities were required and obligated to make payments on the borrowers loans – and they did in fact make payments.  Many of these entities had guarantee agreements with other parties (such as servicers) to reimburse them for payments of principal and interest made on borrowers loans.

Here is the list of related entities RESCAP is attempting to consolidate into one bankruptcy:

• ditech, LLC
• DOA Holding Properties, LLC
• DOA Properties IX (Lots-Other), LLC
• EPRE LLC Equity Investment I, LLC
• ETS of Virginia, Inc.
• ETS of Washington, Inc.
• Executive Trustee Services LLC
• GMAC – RFC Holding Company, LLC
• GMAC Model Home Finance I, LLC
• GMAC Mortgage USA Corporation
• GMAC Mortgage, LLC
• GMAC Residential Holding Company, LLC
• GMAC RH Settlement Service, LLC
• GMACM Borrower LLC
• GMACM REO LLC
• GMACR Mortgage Products, LLC
• HFN REO SUB II, LLC
• Home Connects Lending Services, LLC
• Homecomings Financial Real Estate Holdings, LLC
• Homecomings Financial, LLC
• Ladue Associates, Inc.
• Passive Asset Transactions, LLC
• PATI A, LLC PATI B, LLC
• PATI Real Estate Holdings, LLC
• RAHI A, LLC
• RAHI B, LLC
• RAHI Real Estate Holdings, LLC
• RCSFJV2004, LLC
• Residential Accredit Loans, Inc.
• Residential Asset Mortgage Products, Inc.
• Residential Asset Securities Corporation
• Residential Capital, LLC
• Residential Consumer Services of Alabama, LLC
• Residential Consumer Services of Ohio, LLC
• Residential Consumer Services of Texas, LLC
• Residential Consumer Services, LLC
• Residential Funding Company, LLC
• Residential Funding Mortgage Exchange, LLC
• Residential Funding Mortgage Securities I, Inc.
• Residential Funding Mortgage Securities II, Inc.
• Residential Funding Real Estate Holdings, LLC
• Residential Mortgage Real Estate Holdings, LLC
• RFC – GSAP Servicer Advance, LLC
• RFC Asset Holdings II, LLC
• RFC Asset Management, LLC RFC
• Borrower LLC
• RFC Construction Funding, LLC
• RFC REO LLC
• RFC SFJV-2002, LLC

Fannie Mae Announces Year-End Servicer Performance Scorecard Results

By Daniel Edstrom
DTC Systems, Inc.

Quote from news release dated March 15, 2012:

The STAR Program was created to establish standards and recognize excellence among Fannie Mae servicers in their overall performance, customer service, and foreclosure prevention efforts.

Another Quote:

Overall STAR performance rankings are issued on an annual basis each April.

Apparently Fannie Mae missed the flood of Cease and Desist Consent Orders issued by various government regulators on April 13, 2011 for unsafe or unsound foreclosure policies and practices.  The government regulators were the Office of the Comptroller of the Currency, the Office of Thrift Supervision, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Federal Housing Finance Agency.

Fannie Mae has apparently missed the fact that nothing has changed and the servicers are not abiding by the Cease and Desist Consent Orders, unless they are doing this in secret or on a limited basis.

Here is the text of the news release, followed by the STAR Scorecard results for the previous quarters in 2011.

March 15, 2012

Fannie Mae Announces Year-End Servicer Performance Scorecard Results STAR Program Drives Improved Customer Service and Foreclosure Prevention Outcomes Andrew Wilson 202-752-5168 WASHINGTON, DC – Today, Fannie Mae (FNMA/OTC) announced Servicer Total Achievement and Rewards™ (STAR™) Program Performance Scorecard results for year end 2011. The STAR Program was created to establish standards and recognize excellence among Fannie Mae servicers in their overall performance, customer service, and foreclosure prevention efforts. Encouraging servicer achievement through the STAR Program is an important component of Fannie Mae’s overall efforts to prevent foreclosures and stabilize neighborhoods.

Overall STAR performance rankings are issued on an annual basis each April. These rankings reflect a combination of the program’s two methods for evaluating participating servicers: operational assessments and annual Performance Scorecard results. Fannie Mae will publish overall 2011 STAR Program annual results incorporating both elements in April 2012.

“Servicers in the STAR Program are changing their approach to managing Fannie Mae loans, assisting homeowners, and measuring success,” said Tara Malone, Vice President of Servicer Review and Measurement, Fannie Mae. “We’re pleased to report significant improvements in performance for some of our servicers over the course of 2011. Servicers have increased their focus on areas of key importance for helping Fannie Mae manage losses and prevent foreclosures, which should drive improved STAR performance in 2012.”

For 2011, the following servicers have produced results on the STAR Performance Scorecard at or above median levels relative to peers:

• Peer Group One (consisting of 11 servicers) – CitiMortgage, Inc., EverBank, GMAC Mortgage, LLC (Ally Bank), JP Morgan Chase, and Wells Fargo Bank, NA
• Peer Group Two (consisting of 9 servicers) – Aurora Bank, FSB, Central Mortgage Company, Fifth Third Bank, HSBC Mortgage Corporation, The Huntington National Bank, and Regions Bank
• Peer Group Three (consisting of 13 servicers) – American Home Mortgage Servicing, Inc., Arvest Mortgage Company, Associated Bank, NA, Capital One, N.A., Colonial Savings, F.A., Doral Bank, M&T Bank, Nationwide Advantage Mortgage Co., Navy Federal Credit Union, Third Federal Savings and Loan, Branch Banking & Trust, and Sovereign Bank, a FSB For the second half of 2011, PHH Mortgage Corporation demonstrated significant performance improvements and achieved at or above median levels compared to peers.

Currently, we review thirty-three servicers as full participants of the STAR program. STAR will expand in 2012 to review and assess additional servicers based on updated participation criteria. As a result, peer groupings will change and opportunities for recognition under the program will continue.

STAR Scorecard results for the previous quarters in 2011 may be found at:

 

Fannie Mae Releases Servicer Ratings for First Half of 2011: http://www.fanniemae.com/portal/about-us/media/corporate-news/2011/5496.html

Fannie Mae Releases Additional Servicer Results for First Half of 2011: http://www.fanniemae.com/portal/about-us/media/corporate-news/2011/5524.html

Fannie Mae Releases Servicer Results for Q3 2011: http://www.fanniemae.com/portal/about-us/media/corporate-news/2011/5587.html

 

Fannie Mae exists to expand affordable housing and bring global capital to local communities in order to serve the U.S. housing market. Fannie Mae has a federal charter and operates in America’s secondary mortgage market to enhance the liquidity of the mortgage market by providing funds to mortgage bankers and other lenders so that they may lend to home buyers. Our job is to help those who house America.

New Century Mortgage Corporation Bankruptcy May “Restart” Because Residential Borrowers Were NOT Notified of the Bankruptcy

By Daniel Edstrom
DTC Systems, Inc.

New Century Financial Corporation and its related entities filed voluntary bankruptcy on April 2, 2007.  Persistent Pro Se homeowners are holding the New Century Bankruptcy to task by insisting they, like thousands of other homeowners (if not tens of thousands) were never notified of the New Century bankruptcy.  Homeowners with claims would be considered “creditors” in the New Century bankruptcy.  If the judge resets the bar date, the bankruptcy would “start over”, or at least the claims period would be opened once more.  If this occurs, it is possible New Century would have to notify homeowners with New Century loans that they may be potential creditors.  Because of the fraudulent paperwork created by mortgage services and lenders, the number of claims by residential borrowers skyrocket.

The New Century Liquidating Trust insisted the Pro Se borrowers were wrong and everything was fine.

The next hearing on the matter is May 23 2012 in Judge Carey’s courtroom in Delaware.  On April 25, 2012, this is briefly what happened at the Omnibus hearing according to “Abby”:

Judge Carey came out for the homeowners in today’s telephonic hearing.  Hahn  & Hessen, the appointed trustee’s counsels from NYC, wanted to do the substantive arguments TODAY..but Carey shot them down.  They wanted to have only a cross examination of Atty. Uhland on May 23rd and Carey shot them down – he said no. He expected direct and cross.  He is taking this as a WHOLE NEW evidentiary hearing.  Atty. Uhland had been responsible for the bar date publication for one day each in the Wall Street Journal and the Orange County Register.

Homeowner/borrowers were never notified of the bankruptcy even though New Century had the contact data for each homeowner/borrower.

Also, the appointed bankruptcy trustee, Alan Jacobs was ordered back for the hearing on May 23, 2012 as well as Atty. Uhland.   Pro se Homeowner/borrowers will have about a month to prepare their questions for testimony from Atty. Uhland and the bankruptcy trustee Alan Jacobs.

For a list of other loan originators who have imploded and declared bankruptcy, such Mortgage Lenders Network USA, Inc. and Accredited Home Lenders, Inc., go to the infamous “Implode-O-Meter” (TM) website (http://ml-implode.com/) from Martin Andelman, author of the Mandelman Matters Blog (http://mandelman.ml-implode.com/)

Omnibus Reply of the New Century Liquidating Trust to Objections to Motion for Entry of An Order to Determine That the Debtors Have Complied with the Order Establishing Bar Dates for Filing Proof of Claim and Approving Form, Manner and Sufficiency of Notice Thereof [D.I. 1721]:  http://dtc-systems.net/wp-content/uploads/2012/04/NCLT_DI-10853_re_Bar_Date.pdf

Response of Molly S. White and Ralph N. White in Objection to the New Century Liquidating Trust Motion Requesting an Order That the Debtors Have Complied with the Bar Date Order for Filing Proofs of Claim and Approving Form, Manner and Sufficiency of Notice:  http://dtc-systems.net/wp-content/uploads/2012/04/Pro_Se_objection_to_NCLT.pdf

New Century Liquidating Trust 1st Quarter 2012 financials:  http://dtc-systems.net/wp-content/uploads/2012/04/1st_qtr_2012_financials.pdf

There are numerous other objections from other Pro Se’s, but this is the only one we currently have.

By Daniel Edstrom
DTC Systems, Inc.

I was reviewing the closing documents for a loan when I came across this definition of fraud from Countrywide (now allegedly owned by Bank of America):

Fraud, Misrepresentations, Falsehoods

1. A fraud or scheme related to the transaction has been or may be committed.
2. Any party to the transaction, including but not limited to Lender, Borrower, Seller, Real Estate Broker or Agent, Builder, Mortgage Broker, Title Insurer, Appraiser, Signing Agent or Settlement Agent, or an employee of any such party, has made a material misstatement.
3. A loan document or invoice has been tampered with, falsely generated, bears any incorrect or falsified data, bears different names or addresses for the same party, or bears a fictitious name.  A ficitious name does not include an assumed name field of public record.
4. A party’s handwriting or signature is inconsistent on the loan documents.
5. Borrower is being paid to lend credit or identity to the transaction.

Note also that Freddie Mac has the following definition of straw borrower:

A form of fraud where one person purchases property or takes out a mortgage for another to conceal the identity of the real borrower. Usually the real borrower would not qualify for the mortgage.

Does Freddie Mac or any other lender apply this same definition to straw lender?  I would define straw lender as:

A form of fraud where one entity acts as the payee of a note for another to conceal the identity of the real lender. Usually the real lender would not qualify as a mortgage lender.

U.S. Bank Nat’l Ass’n v. Ibanez 458 Mass. 637 (2011) – The High Cost of Litigation

By Daniel Edstrom
DTC Systems, Inc.

This case is a fiasco beyond imagination.  This boarded up house was the subject of the Massachusetts Supreme Judicial Court decision where US Bank as Trustee of a securitized trust lost in an attempt to obtain a judicial declaration of clear title.  The investors now have an accounting that they can review.  The losses keep coming month after month and may not be finalized for many more years.  Here is what is being reported to the investors and ratings agencies as of February 2012:

Current Amt: $0.00

Paidoff: 9/2008

Last Report Date: 2/2012

Liquidation: $102,077

Curr Loss (as of 2/2012): $29,832.56

Cumulative loss: $274,340.89

Loss Severity (%): 268.76%

Original Amount: $103,500

The cumulative loss and loss severity are extremely high.  This is not a record high for the amount or the loss severity percentage.  But for a boarded up house that is probably not worth $100,000.00 it sure is quite a hit.   Good thing there are still 440 or so loans in this trust with a current balance of over $88 million.  That makes this small amount easy to swallow.  In reality the loss amount is very low because the loan amount is low.  Another loan in this same pool had a cumulative loss of $770,630.99 and a loss severity of 86.41%.  The loan amount was $900,000.

Now for the real question.  How does a loan for $103,500 actually cost the investors a loss of $274,340.89?  Where does the “exta” amount come from to pay for the loss of this property?

Lawyers Take Note: Wells Fargo Slammed with $3.1 Million Punitive Damages on One Wrongful Foreclosure

By Daniel Edstrom
DTC Systems, Inc.

Posted by Neil F. Garfield on livinglies.wordpress.com (http://livinglies.wordpress.com/2012/04/12/lawyers-take-note-wells-fargo-slammed-with-3-1-million-punitive-damages-on-one-wrongful-foreclosure/).

GARFIELD PROPOSES NATIONAL LAW FIRM FOR COUNTER-ATTACK
Editor’s Comment:

The most perplexing part of this mortgage mess has been the unwillingness of the legal community to take on the Banks. Besides the intimidation factor the primary source of resistance has been the lack of confidence that any money could be made, ESPECIALLY on contingency. If you were the lawyer in the case reported below, you would be getting a check for fees alone of over $1.2 million on a single case. And as this article and hundreds of others have reported, based upon objective surveys, most of the 5 million homes lost since 2007 were wrongful foreclosures.

So the inventory for lawyers is 5 million homes plus the next 5 million everyone is expecting. Let’s due some simple arithmetic: if 4 million homes were wrongfully foreclosed and the punitive damages were $1 million per house the total take would be $4 Billion with contingency fees at $1.6 Billion. If each house carried $200,000 in compensatory damages, then the total would be increased by $800 Million with Lawyers taking home $320 Million. These figures exceed personal injury and malpractice awards. Why is the legal profession ignoring this opportunity to do something right and make a fortune at the same time?

Right now I’m a little under the weather (open heart surgery) but that hasn’t stopped my associates from rolling out a plan for a national anti-foreclosure firm. I’m only doing this because nobody else will. If you have had a home wrongfully foreclosed or suspect that your current foreclosure is wrongful, write to NeilFGarfield@hotmail.com (remember the “F”) and ask for help. Lawyers and victims of wrongful foreclosures should be able to pool their resources to attack the massive foreclosure attack with a massive anti-foreclosure attack.

 DTC Systems readers can write to info@dtc-systems.com and ask for help.  We will see that your request is sent to the lawyers working on this new program.

Here is the Conclusion from the Order (download below):

Wells Fargo’s actions were not only highly reprehensible, but its subsequent reaction on their exposure has been less than satisfactory. There is a strong societal interest in preventing such future conduct through a punitive award. The total monetary judgment to date is $24,441.65, plus legal interest,$166,873.00 in legal fees and $3,951.96 in costs. Other fees and costs incurred by Jones through the first remand were also incurred and are not included in the foregoing amounts. Because the Court cannot reveal the sealed amount stipulated to by the parties when they settled Jones’ Application for Award of Fees and Costs Related to Remand (“Application”),70 the Court will use Jones’ Application itself as evidence of fees and costs actually incurred up to the date of the Application. The Application and supporting documentation establish that an additional $118,251.93 in attorneys’ fees and $3,596.95 in costs was also incurred by Jones.71 The amounts previously awarded plus the additional amounts incurred establish that the cost to litigate the compensatory portion of this award was $292,673.84. After considering the compensatory damages of $24,441.65 awarded in this case, along with the litigation costs of $292,673.84; awards against Wells Fargo in other cases for the same behavior which did not deter its conduct; and the previous judgments in this case none of which deterred its actions; the Court finds that a punitive damage award of $3,171,154.00 is warranted to deter Wells Fargo from similar conduct in the future. This Court hopes that the relief granted will finally motivate Wells Fargo to rectify its practices and comply with the terms of court orders, plans and the automatic stay.

Download the bankruptcy ruling here:  http://dtc-systems.net/wp-content/uploads/2012/04/Jones_vs_Wells_Fargo.pdf

Homeowner Takes Goldman Sachs to Task and Gets a Favorable Loan Modification in Bankruptcy

By Daniel Edstrom
DTC Systems, Inc.

This bankruptcy case is a few years old (bankruptcy filed on 6/11/2007 and loan mod dated approx. 2009).  The Homeowners fight to find the identity of MTGLQ Investors, LP – a Goldman Sachs subsidiary.  They end up forcing Goldman Sachs to abandon foreclosure and accept a loan modification.  This is a complex case and the debtors acted as their own attorney.

Read the Motion for Relief from Stay here:  http://dtc-systems.net/wp-content/uploads/2012/04/22-Motion-for-Relief-from-Stay.pdf

 - filed by Attorneys for WMC MORTGAGE CORP., its successors and/or assigns

Read the Amended Motion for Relief from Stay here: http://dtc-systems.net/wp-content/uploads/2012/04/34-Amended-Motion-for-Relief-from-Stay.pdf

 - filed by Attorneys for MTGLQ INVESTORS, L.P., its successors and/or assigns

(Yes that is right, one creditor files the motion, then another creditor amends the motion)

Read the Amended Motion for Relief from Stay exhibits here: http://dtc-systems.net/wp-content/uploads/2012/04/34-Amended-Motion-for-Relief-from-Stay_Exhibits.pdf

Read the Motion for Loan Mod Approval here:  http://dtc-systems.net/wp-content/uploads/2012/04/96-Motion-for-Loan-Mod-Approval.pdf

Read the Notice of Recorded Loan Mod Agreement here:  http://dtc-systems.net/wp-content/uploads/2012/04/102-Notice-of-Recording-of-Loan-Mod-Agreement.pdf

NTEX Realty vs Tacker – 3rd Oklahoma Supreme Court Decision Against Foreclosing Banks

By Daniel Edstrom
DTC Systems, Inc.

Following two previous rulings favorable to homeowners, the Supreme Court of Oklahoma rules against another foreclosing bank.  This ruling is short and fully excerpted here (or download a PDF at the end of this article).

NTEX REALTY, LP v. TACKER
2012 OK 26
NTEX REALTY, LP, Plaintiff/Appellee,v.CINDY A. TACKER and THERON TACKER, WIFE AND HUSBAND, Defendants/Appellants,
No. 109824.
Supreme Court of Oklahoma.

April 3, 2012.

Phillip A. Taylor, TAYLOR AND ASSOCIATES, Broken Arrow, Oklahoma, for Defendants/Appellants.
Charles C. Ward, Oklahoma City, Oklahoma, for Plaintiff/Appellee.
——————————————————————————–
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
COMBS, J.
FACTUAL BACKGROUND & PROCEDURAL HISTORY.
¶ 1. On January 26, 2007, Appellants executed a promissory note (hereinafter “Note”) payable to Home Funds Direct, Inc. (hereinafter “Lender”). To secure payment of the Note, Appellants executed and delivered to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Lender, as mortgagee, a certain mortgage (hereinafter “Mortgage”), which conveyed and mortgaged to the mortgagee certain real property located in Rogers County, Oklahoma. In both the Note and Mortgage, Home Funds Direct, Inc., is named as the Lender and Payee. Appellants defaulted on the Note on July 1, 2010. Appellee initiated foreclosure proceedings on October, 27, 2010. A copy of the non-indorsed Note and Mortgage was included with the petition.
¶ 2. In their answer, Appellants denied that Appellee owned any interest in the Note and Mortgage, and challenged the authenticity of the documents included in the petition. Appellants then demanded production of the original Note and Mortgage. Appellee moved for summary judgment on March 3, 2011. In an attached affidavit, Appellee asserted that it currently held both the Note and Mortgage at issue, and again produced a copy of both the unindorsed Note and Mortgage. In response, Appellants argued that Appellee’s motion for summary judgment was improper because the Note had never been negotiated. Appellants also asserted that because the copy of the Note was purportedly a “full, true, and correct copy of said Note,” the original must also not be indorsed. Based on these reasons, Appellants concluded Appellee could not be the holder of the Note and, therefore, was not the proper party to bring a foreclosure proceeding.
¶ 3. Appellee thereafter moved the district court, on June 13, 2011, by supplement to its motion, to view the original Note and Mortgage at the hearing for summary judgment. The supplemented motion incorporated an undated allonge, which transferred the Note from Lender to Appellee.1 The allonge was not included in the original petition for foreclosure. The motion also included a document entitled “Assignment of Mortgage,” (hereinafter “Assignment”) which transferred the “described mortgage together with the certain note(s) described therein,” to Appellee from MERS. The Assignment was acknowledged on November 19, 2009, and recorded by the County Clerk of Rogers County, Oklahoma, on June 8, 2011. The district court granted Appellee’s Motion for Summary Judgment and entered an order for the sale of the real property located in Rogers County, Oklahoma. The Appellants now appeal the trial court’s order granting summary judgment, arguing NTex Realty, LP, failed to demonstrate standing.
STANDARD OF REVIEW.
¶ 4 An appeal on summary judgment comes to this court as a de novo review. Carmichael v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051, 1053. All inferences and conclusions are to be drawn from the underlying facts contained in the record and are to be considered in the light most favorable to the party opposing the summary judgment. Rose v. Sapulpa Rural Water Co., 1981 OK 85, 621 P.2d 752. Summary judgment is improper if, under the evidentiary materials, reasonable individuals could reach different factual conclusions. Gaines v. Comanche County Medical Hospital, 2006 OK 39, ¶4, 143 P.3d 203, 205.
¶ 5 Following the teachings of Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___ P.3d ____, ¶11, where we held:.
To commence a foreclosure action in Oklahoma, a plaintiff must demonstrate it has a right to enforce the note and, absent a showing of ownership, the plaintiff lacks standing. Gill v. First Nat. Bank & Trust Co. of Oklahoma City, 1945 OK 181, 159 P.2d 717. Being a person entitled to enforce the note is an essential requirement to initiate a foreclosure lawsuit. In the present case, there is a question of fact as to when Appellee became a holder, and thus, a person entitled to enforce the note. Therefore, summary judgment is not appropriate. If Deutsche Bank became a person entitled to enforce the note as either a holder or nonholder in possession who has the rights of a holder after the foreclosure action was filed, then the case may be dismissed without prejudice and the action may be re-filed in the name of the proper party. We reverse the granting of summary judgment by the trial court and remand back for further determinations as to when Appellee acquired its interest in the note.
We therefore find there is a question of fact as to when NTex acquired the note in the instant matter, and we remand this matter back to the trial court for further determination as to if and when NTex became a person entitled to enforce the note.
CONCLUSION.
¶ 6 It is a fundamental precept of the law to expect a foreclosing party to actually be in possession of its claimed interest in the note, and to have the proper supporting documentation in hand when filing suit, showing the history of the note, so that the defendant is duly apprised of the rights of the plaintiff. This is accomplished by showing the party is a holder of the instrument or a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 12A O.S. 2001, § 3-309 or 12A O.S. 2001, § 3-418. Likewise, for the homeowners, absent adjudication on the underlying indebtedness, the dismissal cannot cancel their obligation arising from an authenticated note, or insulate them from foreclosure proceedings based on proven delinquency and, therefore, this Court’s decision in no way releases or exonerates the debt owed by the defendants on this home. See, U.S. Bank National Association v. Kimball 27 A.3d 1087, 75 UCC Rep.Serv.2d 100, 2011 VT 81 (VT 2011); and Indymac Bank, F.S.B. v. Yano-Horoski, 78 A.D.3d 895, 912 N.Y.S.2d 239 (2010).
REVERSED AND REMANDED WITH INSTRUCTIONS.
¶ 7 CONCUR: TAYLOR, C.J., KAUGER, WATT, EDMONDSON, REIF, COMBS, JJ.
¶ 8 DISSENT: WINCHESTER (JOINS GURICH, J.), GURICH (BY SEPARATE WRITING), JJ.
¶ 9 RECUSED: COLBERT, V.C.J.
GURICH, J., with whom WINCHESTER, J. joins, dissenting:.
¶1 I respectfully dissent. In this case, the record indicates that attached to Plaintiff’s Amended Motion for Summary Judgment was the original note, an allonge that transferred the note to the Plaintiff, and an assignment of mortgage. After reviewing the original note and mortgage, the trial court found that Plaintiff was the owner of the note and mortgage and granted summary judgment in its favor. For the reasons stated in my dissenting opinions in Deutsche Bank National Trust Co. v. Matthews, 2012 OK 14, ___ P.3d ___ (Gurich, J. dissenting) and Bank of America, NA v. Kabba, 2012 OK 23, ___ P.3d ___ (Gurich, J. dissenting), I would affirm the trial court in this case.1
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Footnotes
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1. According to Black’s Law Dictionary (9th ed. 2009) an allonge is “[a] slip of paper sometimes attached to a negotiable instrument for the purpose of receiving further indorsements when the original paper is filled with indorsements.” See, 12A O. S. 2001, § 3-204(a).
1. Although I originally concurred in the majority opinion in Deutsche Bank National Trust v. Brumbaugh, 2012 OK 3, ___ P.3d ___, which the majority now relies on as its authority to decide this case, after further consideration, I disagree with the majority’s analysis in that case, and my views on the issues in these cases are accurately reflected in J.P. Morgan Chase Bank N.A. v. Eldridge, 2012 OK 24, ___ P.3d ___ (Gurich, J. concurring in part and dissenting in part); Kabba, 2012 OK 23, ___ P.3d ___ (Gurich, J. dissenting); CPT Asset Backed Certificates, Series 2004-EC1 v. Kham, 2012 OK 22, ___ P.3d ___ (Gurich, J. dissenting); Deutsche Bank National Trust Co. v. Richardson, 2012 OK 15, ___ P.3d ___ (Gurich, J. concurring in part and dissenting in part); and Matthews, 2012 OK 14, ___ P.3d ___ (Gurich, J. dissenting).

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Force-Placed Insurance Class Action Lawsuit Initiated in Federal Court

By Daniel Edstrom
DTC Systems, Inc.

Mortgage Servicers are taking advantage of there position to increase fees by calling homeowners insurance providers and asking them to cancel the policy and send the refund to the servicer.  They then place insurance with very low coverage costing typically four times as much.  This is a common story we hear over and over again.  Allegations in this case detail what happens behind the scenes.  Chris Maxwell files this class action complaint against HSBC Mortgage Corporation (USA), Assurant, Inc. and Tracksure Insurance Agency, Inc.

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