June 22, 2012
A Florida Circuit Judge has gone on the record requiring Wells Fargo, as the claimed “trustee” of a securitized mortgage loan trust, to show that the mortgage loan which WF is attempting to enforce actually went into the PSA, and if not, the standing requirement has not been met and the case will fall on summary judgment. The homeowner is represented by Jeff Barnes, Esq.
The Judge specifically stated as follows:
“…but what I want plaintiff’s counsesl to understand, that what you submitted to me with regards to the pooling and servicing agreement still does not have the actual mortgages that went into that pooling and servicing agreement…So at some point you’re going to have to show that this mortgage and note certainly went into that pooling and servicing agreement, which is what I have requested before. … So I’m just asking you that before we get too far out, please make sure that’s there, or its going to be taken out on summary judgment. … In other words, if you’re a trustee for that pooling and servicing agreement, and the mortgage and note are not in that pooling and servicing agreement, you don’t have standing.”
This ruling not only directly confirms the proof requirements for standing in a securitization case, but supports the production of discovery on the issue as well.
Separately, fifty-one (51) originating mortgage lenders, servicers, and trustee sale companies have filed Bankruptcy in the United States District Court for the Southern District of New York, all having filed on May 14, 2012. The list of Debtor entities includes GMAC Mortgage, LLC; Executive Trustee Serevices LLC (a 3d party trustee sale company which schedules and conducts non-judicial foreclosure sales); Ditech (the one which touted that it gave loans of 125% of the value of the home); Residential Funding Company, LLC and its numerous subsidiaries and derivatives; Homecomings Financial, and others.
The 341 meeting of creditors is scheduled for June 25, 2012 at 1:00 p.m. at 80 Broad Street, Fourth Floor, New York, New York. The 341 Notice states that there is no deadline to file a proof of claim or a complaint (adversary proceeding) to determine dischargeability as of this time.
As we have previously advised with “lender bankruptcies”, two of the threshold important events are any requests to destroy documents and the formation of a “borrowers’ committee” separate and apart from the unsecured creditors’ committee, as homeowner/borrowers’ interests are not necessarily the same as those of the rest of the unsecured creditors, and may in fact be adverse to the general unsecureds, who have no interest in protecting claims of homeowners. Mr. Barnes was previously involved in requesting the formation of a borrowers’ committee in the Accredited Home Lenders bankruptcy, and was also involved with the borrowers’ committee in the American Home Mortgage bankruptcy.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com