March 4, 2013

A Honolulu, Hawai’i state court Judge has denied a Motion for Summary Judgment filed by US Bank as the claimed trustee for a GMAC securitization. There is no date or other source of verification or authority on either of the alleged “endorsements” to the Note; there was no Affidavit filed in support of the Motion; there is no mention of Residential Funding (which appears on one of the endorsements) in the Assignment; and the MERS Assignment was executed on behalf of a bankrupt lender. The Court did not accept USB’s argument that a homeowner cannot challenge an assignment, and on the authority of Deutsche Bank v. Williams, U.S. Dist. Ct. for Hawai’i Case No. 11-00632 JMS/RLP (also known as the “Seabright decision”), permitted a homeowner to challenge the MERS assignment in view of it being made allegedly by a “nominee” of a bankrupt lender. (Homecomings and GMAC both filed for BK in May of 2012).

Jeff Barnes, Esq. prepared the briefing, with the matter being argued by local Hawai’i counsel Damon Senaha, Esq. This is the second ruling from the Honolulu state court denying a trustee bank’s Motion for Summary Judgment in a case where Mr. Barnes was retained by the homeowner and prepared the briefing opposing the summary judgment.

Separately, another Hawai’i homeowner was just presented with what appears to be the latest scam from Bank of America, which is apparently looking for a way to short-circuit having to pay for foreclosures and attorneys to prosecute them and reduce its apparent debt to the government. Like the loan mod offers of the past, this is a non-offer. It is solely a mechanism designed by BOA to take someone’s home without even having to institute a foreclosure and obviously without having to deal with a foreclosure challenge, and in a further obvious effort to reduce what must be a tremendous debt owed by BOA to Fannie Mae.

The vehicle has been termed a “mortgage release” (followed by the trademark “TM” letters). BOA claims that it is “working with REDC Default Solutions, a third party servicing company” on this, whereby the homeowner just voluntarily transfers ownership of their home and all property secured by the mortgage to Fannie Mae. This is so that the homeowner is “spared having to go through a foreclosure”. The only thing being “spared” is BOA having to spend money on a foreclosure and providing its obvious creditor Fannie Mae with a quick and painless inventory of tangible assets.

The “deal” (a) does not allow the homeowner to keep their home; (b) creates a deficiency and a situation where the homeowner may have to pay Bank of America or Fannie Mae monies while the alleged “process” is being reviewed; (c) does not stop foreclosure or a sale; and (d) repeatedly refers to otherwise unidentified “terms and conditions” that the homeowner has to satisfy to remain in the home until the voluntary transfer is completed, after which a move-out date is allegedly set.

BOA must think that the American public is dumb enought to fall for this scam, and is brazen enough to even offer it. Wow! You can VOLUNTARILY surrender your home to the government and pay them for the privilege of doing so, and the alleged “bank” will not have to pay for a foreclosure or deal with a foreclosure challenge! And this is for the alleged “benefit” of the homeowner!

Does it get any more ridiculous than this? It probably will. We thought the loan mod scams, where homeowers were told that they had to be 2 or 3 months behind in their payments in order to “qualify” for a loan mod and were then told that they could not get a loan mod because they were in default and were being foreclosed upon, were bad. This new scam just adds insult to injury.

Jeff Barnes, Esq.,