Saturday, March 8, 2008

Lender Screw-Up With Loan Docs Precludes Foreclosure; Boca Raton Man Continues "Living Large" Despite Unpaid $1.5M Mortgage

An article in Bloomberg News late last month reported on the increasing problem mortgage companies are facing as a result of the screw-ups in the chain of custody in physically handling the essential paperwork when mortgage loans are sold from investor to investor and, in many cases, end up as part of a mortgage securitization trust. Such screw-ups have resulted in an inability to physically produce the documentation (ie. promissory notes, assignments of mortgage) necessary to commence a foreclosure action when attempting to repossess real estate. The article kicks off with this short anectdote:

  • Joe Lents hasn't made a payment on his $1.5 million mortgage since 2002. That's when Washington Mutual Inc. first tried to foreclose on his home in Boca Raton, Florida. The Seattle-based lender failed to prove that it owned Lents's mortgage note and dropped attempts to take his house. Subsequent efforts to foreclose have stalled because no one has produced the paperwork. "If you're going to take my house away from me, you better own the note,'' said Lents, 63, the former chief executive officer of a now-defunct voice recognition software company.
For more, see Banks Lose to Deadbeat Homeowners as Loans Sold in Bonds Vanish.

For actual court cases that provide real life illustrations of the problems foreclosing lenders have faced in the past when these types of screw-ups occur, see:
  1. State St. Bank & Trust Co. v. Lord, 851 So. 2d 790; (Fla. App. Ct. 4th Dist., 2003),
  2. In re Shwartz, (Bankr. Ct., Mass. April 19, 2007),
  3. Terwin Advisors LLC vs. Balbachan (New York Supreme Court - Queens County; April 16, 2007) (Note: For those unfamiliar with the New York judicial system, the "New York Supreme Court" is simply what the state calls its trial courts - not to be confused with the New York Court of Appeals, which is the state's "highest court."),
  4. Lasalle Bank Natl. Assn. v. Lamy, 2006 NY Slip Op 51534(U); 12 Misc 3d 1191(A); (New York Supreme Court, Suffolk County; August 7, 2006).

For a related post, see Foreclosure Legal Work: A Shoddy, Assembly-Line Practice?

For other posts that reference the sloppiness and carelessness of some mortgage lenders and their attorneys in the physical handling of the mortgage loan documents when bringing foreclosure actions, see:

Friday, March 7, 2008

Judge Declines Imposing Sanctions On Countrywide & Lawyers, Despite Unprofessional, Unethical Conduct

The New York Times reports:

  • The Countrywide Financial Corporation, the largest American mortgage lender, did not show “bad faith” in the handling of a Texas homeowner’s mortgage and will not be sanctioned merely for unprofessional and unethical conduct, a federal judge ruled on Wednesday. Countrywide and two law firms it used showed “a disregard for the professional and ethical obligations of the legal profession and judicial system,” Judge Jeff Bohm of Federal District Court said in ruling on a request by a Justice Department official to consider punishing the company for its conduct. But to impose sanctions, Judge Bohm wrote, he would have had to find “clear and convincing evidence of conduct that is in bad faith, vexatious, wanton or undertaken for oppressive reasons.”


  • In Texas, homesteads are sacrosanct,” the judge said in a ruling that traced how Countrywide’s corporate culture led to mistakes including a failure to properly record some payments made by [a Texas homeowner]. [...] The judge also found fault with the law firms, saying their flat-fee rate had led to a “corrosive ‘assembly line’ culture of practicing law.”

For more, see Judge Lectures Countrywide but Decides Not to Punish It in Texas Mortgage Case.

See also, Reuters: US judge won't punish Countrywide for botched case.

To view the court ruling, in which the presiding bankruptcy judge carefully rips apart Countrywide & their attorneys (probably "must reading" for anyone who believes they were screwed over by Countrywide or any other loan servicer), see:

Go here for more on recent Countrywide problems with consumers.

For an article examining mortgage companies frequent non-compliance with law in consumer bankruptcy cases, see Misbehavior and Mistake in Bankruptcy Mortgage Claims, by Katherine M. Porter University of Iowa - College of Law.

Culture Condoning Lying To The Court, "Assembly Line" Lawyering In Foreclosures Cases Has One Judge Wondering

The Wall Street Journal Law Blog reports:

  • Does flat-fee pricing foster assembly-line lawyering? That’s what U.S. bankruptcy judge Jeff Bohm suggested in a decision, entered [Wednesday], in a consumer bankruptcy case involving Countrywide and a Texas homeowner. While Judge Bohm declined to enter sanctions against Countrywide and its lawyers from two firms — Barrett Burke and McCalla Raymer — he wrote: “This fixed-fee business model appears to have been an overwhelming financial success. . . . Meanwhile, the profession has suffered from the ever decreasing standards that firms like Barrett Burke and McCalla Raymer have heretofore promoted. This demise must stop.”

  • The judge called problems at the firms’ culture “disconcerting” and described what he called the firms lack of care for accuracy and failure to communicate with clients. “[W]hat kind of culture condones its lawyers lying to the court and then retreating to the office hoping that the Court will forget about the whole matter.” While “perfection” he said is “too much to demand, preparedness and candor are not.”

For more, see Foreclosure Legal Work: A Shoddy, Assembly-Line Practice?

To view the court ruling, in which the presiding bankruptcy judge carefully rips apart Countrywide & their attorneys (probably "must reading" for anyone who believes they were screwed over by Countrywide or any other loan servicer), see:

For an article examining mortgage companies frequent non-compliance with law in consumer bankruptcy cases, see Misbehavior and Mistake in Bankruptcy Mortgage Claims, by Katherine M. Porter University of Iowa - College of Law.

Go here for more on recent Countrywide problems with consumers.

Thursday, March 6, 2008

Increase In Contested Foreclosure Actions Costly For Lenders

The Financial Times reports:

  • Borrowers whose properties are being foreclosed on are contesting those foreclosures in rising numbers, attorneys representing both mortgage servicers and homeowners told Debtwire. The trend could impact the performance of subprime-backed bonds, as foreclosures will take longer and be more costly, which could put downward pressure on recoveries. [...] As foreclosures in states such as Ohio, Florida and Nevada flood the courts, borrowers and their attorneys have begun finding ways to challenge foreclosures, and judges in several states have been sympathetic, said Alan Wolf, a partner with the Wolf Firm in Irvine, California, in comments made at a panel 27 February during the Mortgage Bankers Association National Mortgage Servicing Conference in New Orleans.


  • Challenges by borrowers are taking a variety of forms, said Edward Hyne, assistant vice president in the legal department for First Horizon Home Loans in Irving, Texas, speaking at the same 27 February panel. Some borrowers are making the case that forbearance agreements are required by law, and others that various notices servicers are required to send were not received, for example. But one defense that seems to be garnering a lot of attention from judges is the issue of standing, or whether plaintiffs may rightfully bring the foreclosure complaints to begin with, Hyne said.

  • In order for trustees acting on behalf of investors in mortgage bonds – the ultimate owners of securitized loans - to have standing to file foreclosure complaints, they must demonstrate that the trust for the securitization has ownership of the loan backed by the property being foreclosed on. But with thousands of loans that have in many cases been sold and re-sold before ultimately landing in their securitizations, the paperwork showing ownership – the assignment of the loans – often has not kept up.


  • Defense attorneys are organizing seminars to teach other attorneys about strategies that can be used in contesting foreclosures.

For more, see Contested foreclosures rise, could increase RMBS losses.

For related posts on contesting foreclosures, see:

Wednesday, March 5, 2008

Florida, Texas Upfront Fee Foreclosure Rescue Operators Targeted By FTC

The Federal Trade Commission announced last week:

  • As part of the Federal Trade Commission’s intensified efforts to protect consumers from mortgage foreclosure rescue scams, the agency has filed two lawsuits charging six individuals and their businesses with falsely claiming that they will stop foreclosure. The FTC will seek to bar them from further violations and make them forfeit their ill-gotten gains.


  • In the first case, Florida-based Mortgage Foreclosure Solutions, Inc., Debra Behrens, and Michael Siani are charged with falsely representing that they will stop foreclosure in all or virtually all instances, in violation of the FTC Act, which prohibits unfair and deceptive acts or practices. They allegedly claim that they can stop foreclosure regardless of consumers’ hardships or payment histories, stating in one such claim, “We are so confident of our abilities to provide you with a solution in stopping your foreclosure that we guarantee our services in writing to you.” [...] According to the FTC’s complaint, [...] the defendants allegedly charge a $950 advance fee and a $250 processing setup charge, and, after receiving consumers’ money they fail to provide updates about the foreclosure proceedings or return consumers’ telephone calls. [...] Many consumers ultimately lose their homes to foreclosure, and others avoid foreclosure only through their own efforts.

  • In the second case, the defendants, all based in Texas, are National Financial Solutions, LLC, National Hometeam Solutions, LLC, United Financial Solutions, LLC, Nationwide Foreclosure Services, LLC, Evalan Services, LLC, Elant, LLC, Elias H. Taylor aka Eli Taylor, Everard Taylor aka Everardo Taylor, Emanuel Taylor, and Edwin P. Taylor, Sr. aka Ed Taylor. They are charged with violating the FTC Act by falsely representing that they would stop foreclosure in all or virtually all instances, and that they would refund most or all fees if foreclosure could not be stopped. [...] In phone calls with consumers, they also claimed that, for an up-front fee ranging from $500 to $1,200, they could stop foreclosures on specific homes and would provide options other than filing for bankruptcy [according to the FTC complaint].

For more, see FTC Sues Two Mortgage Foreclosure “Rescue” Operations.

To view the two FTC lawsuits, see:

Tuesday, March 4, 2008

Feds Target Central Florida Foreclsoure Rescue Operator In Civil Suit

The Federal Trade Commission announced last week:

  • In an ongoing effort to crack down on businesses that prey upon homeowners facing foreclosure, the Federal Trade Commission has charged six businesses and three individuals with violating the Home Ownership and Equity Protection Act (HOEPA), the FTC Act, and the Truth in Lending Act (TILA) by enticing homeowners into high-cost, short-term loans secured by an additional mortgage on their homes. The FTC will seek to bar the defendants from further violations, make them forfeit their ill-gotten gains, and stop collection and foreclosure actions or efforts to seize or transfer properties.

  • The defendants are Safe Harbour Foundation of Florida, Inc., Silverstone Lending, LLC, Silverstone Financial, LLC, Southeast Advertising, Inc., Keystone Financial, LLC, MT25 LLC, Peter J. Porcelli II, Bonnie A. Harris, and Christopher Tomasulo.

  • According to the FTC’s complaint, Safe Harbour, Porcelli, Harris, and Tomasulo target homeowners facing foreclosure with claims such as “We have all the funds available to pay your bills and save your home from foreclosure. GUARANTEED!” The Silverstone companies and Keystone then provide high-cost, interest-only, short-term balloon-payment loans secured by second mortgages on homes already subject to foreclosure.

For more, see FTC Charges Mortgage Foreclosure “Rescuers” with Deceiving Homeowners.

In a related story, see the St. Petersburg Times: Scammer in trouble again (A millionaire, already in prison for credit card fraud, is accused of foreclosure deceit).

To view the lawsuit, see FTC v. Safe Harbor Foundation Of Florida, Inc., et al. (U.S. District Court, N.D. Ill.).

This suit now makes at least three civil suits against foreclosure rescue operator Peter Porcelli and his group of associates. To view the two other lawsuits (that I know of), see:

Go here for earlier posts on Peter Porcelli.

Monday, March 3, 2008

Racketeering, Conspiracy, Criminal Usury, TILA Violations Alleged In Another Civil Suit Against Central Florida Foreclosure Rescue Operator

In Central Florida, the St. Petersburg Times reports:

  • Two homeowners filed a lawsuit in federal court [last] week against Peter J. Porcelli, saying they lost their homes because of his foreclosure lending scam. Philip Clark and Tania Harris say Porcelli of Oldsmar and others associated with his Safe Harbour Foundation, Silverstone Lending and Silverstone Financial companies targeted them as part of a scam to save them from foreclosure through fraudulent loans. In October, a federal judge sentenced Porcelli to 13 years in prison for his part in a credit card scam that victimized tens of thousands of credit-poor consumers across the country. He also was ordered to pay restitution of more than $11.8-million. Porcelli was indicted in March on conspiracy, wire fraud, mail fraud and money laundering charges. Prosecutors said he had a telemarketing operation that preyed on 165,141 consumers nationally and took in nearly $12-million in illegal profits.

Source: Homeowners sue over loan fraud (2nd blurb from the top).

Included in the lawsuit are allegations of:

  1. civil RICO violations by a pattern of racketeering activity and through the collection of unlawful debt (18 USC § 1961 et seq.),
  2. Truth In Lending Act violations (15 USC § 1601 et seq.),
  3. unlawful mortgage brokering and mortgage lending (Fla Statute Chapter 494),
  4. criminal usury (Fla. Statute Chapter 687), and
  5. civil conspiracy.

The homeowners also seek to void all liens, mortgages, etc. currenly clouding title to their homes by reason of the alleged acts of Porcelli and his confederates. To view the lawsuit, see Complaint - Clark, et al. v. Porcelli, et al. (U.S. District Court, M.D. Fla.).

To view an earlier lawsuit against Porcelli and associates making similar allegations, see Heise, et al. vs. Porcelli, et al. (U.S. District Court, M.D. Fla.).

Representing the homeowners in both lawsuits is Michael Alex Wasylik, Esq., with the law firm Ricardo & Wasylik PL, Dade City, Florida.

Go here for earlier posts on Peter Porcelli.