Eskow: Getting Medieval On Your Assets: Four Reasons Foreclosure Fraud Really, Really Matters

[Blue State Blues]

Read the full article at: http://www.huffingtonpost.com/rj-eskow/getting-medieval-on-your_b_775482.html
(It's good, you should really read the whole article. )

RJ Eskow disputes the conventional wisdom that the foreclosure fraud scandal is nothing more than a paperwork technicality, instead it is a "a systemic problem" and "a crime wave of epidemic proportions." He argues the foreclosure process has become "a massive dragnet, run and managed by the financial services industry with the compliance of too many state and national legal institutions." The legal process around these fraudulent foreclosures tramples on citizens' basic rights, rights guaranteed by the Constitution, based on rights established in medieval times.

The last counterargument is literally an ancient one. It's based on the long-established right of any citizen to be inviolable in their home and possessions. This goes back to the Magna Carta, which established that the will of the monarch wasn't arbitrary and that the property of "freemen" could not be seized without proper legal recourse. This principle was enshrined in the Fifth Amendment of the Constitution, which says "No person shall be deprived of life, liberty or property without due process of law." (emphasis mine)

It's bad enough that we've seen massive violations of the Constitution and people are saying it's no big deal. But we're also seeing massive violations of a legal principle that was established as an inalienable human right ... in 1215 AD! And people are still saying it's no big deal. This isn't a "technical" problem or a "paperwork" issue. It reflects on our national character, and our will to preserve the rights and liberties that have existed for eight centuries.

The problem isn't that some people bought "more house than they can afford." The problem is that we have more rights as free citizens than the banking industry can afford. So, naturally, they want us to pretend those rights don't exist. If we do, we'll lose them. And that will be a really big deal.

(bold mine)

[Lance_Boyle]

1. Show me the cases of people who are current on their mortgage payments getting booted

and I'll consider the possibility that this "deprivation of property" argument has some merit. In the absence of that evidence, what we see are people who fail to uphold their end of a mortgage contract losing the house they borrowed money to purchase. That isn't depriving them of their property, that's enforcing the contract they signed and then broke.

[Blue State Blues]

2. here's one

I'll let the author answer:

Consider the woman whose bank offered to let her skip a monthly payment in return for accidentally changing her locks, and then proceeded to foreclose on her. With shell games like the mortgage industry's MERS, which obscures the actual trail of ownership and insulates the lender from court proceedings, the bank in question doesn't even have to show up during the foreclosure process. That means that she's denied the right to face her trading partner in court. Due process is trampled upon, and so is the right to legally enforce a contract.

[Lance_Boyle]

9. How did they 'accidentally change her locks' absent a foreclosure proceeding?

Did she get the "offer" to let her skip a payment in writing?

[rfranklin]

3. Here's a bunch of them...

The Erroneous Foreclosure Central Data Repository:

• Lawsuit accuses Bank of America of seizing wrong house: Dr. Alan Schroit filed the lawsuit Monday in the 122nd State District Court in Galveston against the bank with which he has neither a relationship nor a mortgage. (The Galveston County Daily News)

• Christopher Hamby of Wheelwright, Ky., filed a lawsuit against Bank of America for repossessing his home by mistake and refusing to pay for damages other than replacing the locks. (Floyd County Times)

• Jason Grodensky bought his modest Fort Lauderdale home in December, he paid cash. But seven months later, he was surprised to learn that Bank of America had foreclosed on the house, even though Grodensky did not have a mortgage. (Sun Sentinel)

• A Hampton Pennsylvania woman is suing Bank of America, saying one of its contractors wrongly repossessed her home, padlocked the doors, shut off the utilities, damaged the furniture and confiscated a pet parrot, though her mortgage payments were on time. (Pittsburgh Post-Gazette)

• Charlie P. and Maria Cardoso of New Bedford claimed that their home in Florida was free of any mortgage. They filed a lawsuit for a wrong foreclosure, claiming that the Bank of America had foreclosed. Their lawyers argued that the Bank had already been notified about the wrong foreclosure, in July, despite which it got foreclosed (South Coast Today)

• A Las Vegas woman whose condo was mistakenly emptied in a bungled foreclosure action could be the first person to benefit from a new state law. Nilly Mauck, left Las Vegas in mid-December for a snowboarding trip to Utah and returned to stay with a friend for a few days when she received a disturbing phone call. Something was amiss at the Coronado Palms condominium on Badura Avenue that she had owned for the past two years. (Las Vegas Sun)

• Ricky Rought paid cash to the Deutsche Bank National Trust Company for a four-room cabin in Michigan with the intention of fixing it up for his daughter. Instead, the bank tried to foreclose on the property and the locks were changed, court records show. (Dealbook)

• Sonya Robison is facing a foreclosure suit in Colorado after the company handling her mortgage encouraged her to skip a payment, she says, to square up for mistakenly changing the locks on her home, too. (Colorado Springs Business Journal)

• Thomas and Charlotte Sexton, of Kentucky, were successfully foreclosed upon by a mortgage trust that, according to court records, does not exist. (NYT)

http://www.ritholtz.com/blog/

[Lance_Boyle]

10. OK, nine. Where's the epidemic?

The vast, vast majority of homes in foreclosure right now (all but nine, as far as I can tell) are occupied by people who at some point failed to uphold their mortgage contracts by making payments as scheduled. Foreclosure is the remedy spelled out in the contract they violated, and should proceed. In the exceedingly rare (nine out of how many million?) event that someone's home is put into foreclosure erroneously, the lender has violated the mortgage contract and should be penalized.

[drm604]

21. You didn't ask for an epidemic.

Show me the cases of people who are current on their mortgage payments getting booted and I'll consider the possibility that this "deprivation of property" argument has some merit.

You've been shown cases, including at least 2 instances of people who didn't even have a mortgage. Maybe you should start considering.

[rfranklin]

4. There's a matter of law that has to be addressed...

If I submit false documents to the court--even if they represent a fact--I am committing a crime. These banks have committed crimes by falsifying documents and swearing to their authenticity in court tens of thousands of times.

[drm604]

5. Here you go.

http://www.tampabay.com/news/business/realestate/bank-of-america-forecloses-on-house-that-couple-had-paid-cash-for/1072632

The Massachusetts couple [Charlie and Maria Cardoso] paid for their future retirement home in Spring Hill with cash in 2005, five years before agents for Bank of America seized the house, removed belongings and changed the locks on the doors, according to a lawsuit the couple have filed in federal court.

http://seekingalpha.com/instablog/98115-john-lounsbury/58361-paid-cash-house-foreclosed-and-seized

This week, Angela Iannelli of suburban Pittsburgh sued BofA for repossessing her house, even though she had a near-spotless payment history and never received a notice of default.
...
BofA has issued a statement that basically says, “Oops, wrong address.” Which sounds plausible enough except BofA did the same thing last summer to a couple north of Tampa -- who paid for their home in cash.

http://articles.sun-sentinel.com/2010-09-23/business/fl-wrongful-foreclosure-0922-20100921_1_foreclosure-defense-attorney-foreclosure-case-jumana-bauwens

When Jason Grodensky bought his modest Fort Lauderdale home in December, he paid cash. But seven months later, he was surprised to learn that Bank of America had foreclosed on the house, even though Grodensky did not have a mortgage.

Some of those aren't exactly what you're looking for, people who are current on their mortgage, instead they are people who didn't even have a mortgage, which I think proves the point just as well, if not better. Foreclosures are being rushed through, documentation is not being checked properly and sometimes being outright forged.

[Greyhound]

7. "Hello"?

There are hundreds more examples awaiting your enlightenment.

[Lance_Boyle]

11. Put 'em up. So far I see nine.

Nine does not an epidemic make.

[Greyhound]

13. LOL!

Google is your friend.
:rofl:

[Lance_Boyle]

15. Not really, no.

Got any more erroneous foreclosures beyond those nine? And of those nine, did any actually proceed to people losing the house?

[rfranklin]

20. Yes, there were foreclosures on homes without mortgages....

how can that possibly be if the banksters are following legal procedure?

I gather you are perfectly okay with illegal foreclosures? Any foreclosure based on fraudulent documents is illegal. That's the law of the land.

[ljm2002]

12. Amazing how some people defend the defrauders...

...simply amazing.

There is a fundamental principle in contract law called Good Faith. I believe that many of these subprime mortgages violated that inherent principle (emphasis mine in the citations below):

http://www.expertlaw.com/library/business/contract_law....

Good Faith

It is implicit within all contracts that the parties are acting in good faith. For example, if the seller of a "mustang" knows that the buyer thinks he is purchasing a car, but secretly intends to sell the buyer a horse, the seller is not acting in good faith and the contract will not be enforceable.

http://www.lawteacher.net/contract-law/essays/good-fait...

The notion of good faith

The notion of good faith undoubtedly pervades English law, but there is no single recognised doctrine of general application. The law is generally ready to strike against instances of bad faith: for example where lies are told in pre-contractual negotiations and where the weak are exploited or pressurised the application of concepts of contract law will make such contracts void or voidable.

http://www.bowne.com/securitiesconnect/details.asp?stor...

Necessity's child. To mitigate the result in Smith v. Van Gorkom (1985), Delaware enacted General Corporation Law Section 102(b)(7), thereby permitting a corporation to avoid monetary liability for its directors' breach of the duty of care. Plaintiffs in factually appealing cases, writes corporate law attorney and professor Mark Loewenstein, then began urging courts to analyze directors' actions under the duty of good faith. This concept—derived from contract theory but applied to the corporate fiduciary context—is useful from a plaintiff/shareholder's standpoint: like the duty of loyalty, it cannot be waived. In In re Caremark International Inc. Derivative Litigation (1996), the chancery court remarked that a board's abdication of its responsibility to stay informed (in Caremark, by failing to adopt any kind of information reporting system) would demonstrate a lack of good faith.

===

Now not only was the fundamental principle of good faith missing from many of the mortgage contracts that were put together in the last 10 years or so, in that the institutions knew they were including harmful terms that were unlikely to be met by the buyers, also there has been massive documented fraud perpetrated by the financial institutions.

ANY finding of fraud or lack of good faith should bust the contract. Then it can be renegotiated. I'm not advocating people get "free houses", but I do think we little people have gotten a raw deal at the hands of institutions who have knowingly defrauded us and we deserve redress.

[earth mom]

14. My how you love to kiss the banksters a$$es.

:puke:

It doesn't take a rocket scientist to see the massive scam that is being played on the american people by the crooked gansta bansters!

How in the hell do people like you sleep at night?! :wtf:

[Lance_Boyle]

16. I sleep quite well. I'm current on my mortgage, and didn't overbuy.

So very sad for all those who think that by playing up nine erroneous foreclosure filings as an "epidemic" they will be able to get a free house. The greed is most certainly not *all* on the "banksters'" side.

[earth mom]

17. Spare me your holier than thou b.s. I don't buy it for a minute. nt

[Lance_Boyle]

19. I am particularly unholy, thank you very much.

Sorry you do not believe that some of us were responsible in obtaining mortgages and didn't buy more house than we needed or could afford. You must hang around greedy and/or stupid people exclusively.

[Greyhound]

18. Now, multiply this by 100,000,000 and you know what happened to America. n/t

[Blue State Blues]

6. "People have rights, even if they owe money."

As a nation we seem to be all too willing to overlook the citizens' rights and even human rights -- the rights of real people.

[Greyhound]

8. Yeah but this isn't nearly as important as who the Princess of Crazytown

fucked years ago.
:eyes:
:kick: & R