Oklahoma Supreme Court Rules Against Deutsche On Two Different Cases – On the Same Day
By Daniel Edstrom
DTC Systems, Inc.
From 4closurefraud.org - Attorney Phillip Taylor takes the foreclosure fight in Oklahoma to the Oklahoma Supreme Court and gets handed two favorable rulings on the same day.
Deutsche Bank National Trust Company vs. Byram quote:
CONCLUSION
¶11 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 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. 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 Continue reading “Oklahoma Supreme Court Rules Against Deutsche On Two Different Cases – On the Same Day” »
What did the Attorneys for OneWest Learn at Trial?
By Daniel Edstrom
DTC Systems, Inc.
From the United States Bankruptcy Court Southern District of California Bankruptcy No. 09-19263-PB13 (RS No. CNR-2), the Honorable Laura S. Taylor presiding (Not for Publication). OneWest submitted a motion for relief from stay as a secured creditor. This means they are the one with money at risk and there is security for the collateral (a Deed of Trust securing the debtors home). Attorneys had submitted this information and much more on behalf of OneWest. OneWest used a Brian Burnett to provide a declaration stating under penalty of perjury that OneWest was the real party in interest in connection with the Stay Motion. Mr. Burnett also stated under penalty of perjury that: (a) OneWest received an interest in the Trust Deed pursuant to an assignment attached to the OneWest Declaration; and (b) that OneWest is “holder and in actual physical possession of the original Promissory Note dated July 14, 2007 …”. A copy of the note (unendorsed) was attached to the declaration. This note was identical to the note attached to the Claim (Proof of Claim).
At trial, Charles Boyle, an Assistant Vice President in the Default Risk Management Group, Litigation Department of OneWest, testified, among other things, that the beneficiary of the Loan is Freddie Mac. This testimony was not consistent with the OneWest Declaration (by Mr. Burnett). The court required more information after the trial in order to decide the outcome.
OneWest’s post-trial documents contained factual assertions inconsistent with the OneWest Declaration and claim. OneWest now provided a new copy of the note with an allonge dated July 24, 2007 evidencing a transfer from Original Lender to “IndyMc Bank, FSB” and bore an endorsement in blank from IndyMac Bank FSB. Continue reading “What did the Attorneys for OneWest Learn at Trial?” »
