Saturday, July 17, 2010

Officials Threaten Tenants With The Boot Due To Landlord's Failure To Register Housing Rentals With City

In Elmira, New York, the Star Gazette reports:

  • As part of Elmira's continuing battle against neighborhood blight, city officials will post notices on four rental properties Monday saying the homes cannot be occupied because their owners haven't registered with the city. Tenants of the affected residences were notified that they would be prohibited from living in their apartments in 30 days, City Manager John Burin said Friday. The properties [...] will be revisited Monday and posted a second time to notify occupants that they must vacate, he said.

For more, see Elmira moves to shut down 4 rental properties (Managers have not registered with city).

GPS System Used To Track Appliances Ripped Off From Vacant Foreclosed Homes

In Las Vegas, Nevada, KTNV-TV Channel 13 reports:

  • You never expect your house to get broken into, but when a burglary happens, it can be a scary thing. And expensive too. The good news is property crimes in the Valley are down. However, one type of burglary is on the rise and hitting places you wouldn't expect, empty, foreclosed homes. One victim emailed us to investigate and we found some local realtors are using some new technology to protect themselves.


  • While Metro tracks the crime patterns by location, [real estate investor Zolt] Szorenyi is also doing some tracking of his own. "That's going to show you where the GPS is located," Szorenyi shows Action News a web site with a GPS tracking system. He's installed the devices in all his appliances at his foreclosed properties.

  • "You'd have to put a GPS on a rock if you don't want it to go. They'll steal everything," he says. He can see where his appliances are on this web site and it alerts him if they're being stolen. "Basically going to tell me exactly where the location is and I can zoom in on that," he explains. He won't show us where he puts the GPS' but says they're wallet sized and have a motion sensor.

  • He tested one out for Action News. He moved a stove in one of his vacant properties. In under a minute, an email alert comes in. Then, his phone rings. An automated voice sounds from his speaker phone saying, "Dewalt mobile lock has just had an alarm." The system isn't cheap as it costs Szorenyi $400 per unit. He thinks it's saving him money in the long run.

For the story, see Homeowner puts GPS device on appliances to help stop theft.

Foreclosed Homeowner Charged With Endangering Neighbors After Being Found Living In Former Home Running Portable Generator

In Upper Darby, Pennsylvania, The Delaware County Daily Times reports:

  • A man was arrested after allegedly endangering neighbors with a portable running generator in a third-floor bedroom of a vacant house. John Siu, 61, the former owner of the house on the 7200 block of Hazel Avenue, Upper Darby, is facing charges of recklessly endangering another person and criminal trespass.

  • This is a twin home,” police Superintendent Michael Chitwood said. “He could have killed the three people next door and himself from carbon monoxide.” According to Chitwood, Siu was evicted in April due to foreclosure. “He gave an address in Springfield, but apparently has no place to live,” Chitwood said. “Neighbors called to report smelling something and police and firemen located the generator. “Officers on the scene reported a strong odor of exhaust fumes inside the residence with fire personnel determining the exhaust was leaking into the adjoining house. Innocent people could have died from his stupidity.” Siu was jailed in lieu of posting 10 percent of $5,000 bail that stipulated a stay away order from the residence.

Source: Police: Man endangered neighbors with generator.

Friday, July 16, 2010

Lawsuit Lists Economic Factors That Discourage Bank of America From Meeting Contractual Obligations Under HAMP By Facilitating Loan Modifications

In Phoenix, Arizona, Courthouse News Service reports:

  • Despite pocketing $25 billion from the Troubled Asset Relief Program to help homeowners avoid foreclosure, Bank of America refuses to help its customers out because it makes money by turning them away, a class action claims in Federal Court. "Fees that Bank of America charges borrowers that are in default constitute a significant source of revenue to the servicer," the class claims. Though BofA gets $1,000 for each Home Affordable Modification Program loan modification, it's more profitable to "avoid modification and to continue to keep a mortgage in a state of default or distress and to push loans toward foreclosure," according to the complaint.(1)

For more, see It Pays to Foreclose, Class Claims.

(1) The lawsuit reportedly makes the following claims against BofA that discourage them from making permanent loam modifications:

  1. "Bank of America may be required to repurchase loans from the investor in order to permanently modify the loan. This presents a substantial cost and loss of revenue that can be avoided by keeping the loan in a state of temporary modification or lingering default.
  2. "The monthly service fee that Bank of America, as the servicer collects as to each loan it services in a pool of loans, is calculated as a fixed percentage of the unpaid principal balance of the loans in the pool. Consequently, modifying a loan to reduce the principal balance results in a lower monthly fee to the servicer.
  3. "Fees that Bank of America charges borrowers that are in default constitute a significant source of revenue to the servicer. Aside from income Bank of America directly receives, late fees and 'process management fees' are often added to the principal loan amount thereby increasing the unpaid balance in a pool of loans and increasing the amount of the servicer's monthly service fee.
  4. "Entering into a permanent modification will often delay a servicer's ability to recover advances it is required to make to investors of the unpaid principal and interest payment of a non-performing loan. The servicer's right to recover expenses from an investor in a loan modification, rather than a foreclosure, is often less clear and less generous."

Tenants To File Suit Against Landlord Alleging Health Problems Due To Toxic Mold; Claim Concerns Were Ignored, Met With Retaliatory Threats

In Pittsburg, California, the Contra Costa Times reports:

  • Tenants of an apartment complex here are suing their management company over claims that it failed to remove mold that made them sick. About 30 residents of Portofino Apartments [...] are signing onto a lawsuit, said attorney Bob Levin, against management company Riverstone Residential Group, citing poor living conditions and retaliatory responses to complaints. Levin said he plans to file the suit "within the statutory period," once he meets with all prospective plaintiffs.

  • The common thread among the tenants' complaints is allegations of mold growing on walls, in carpet, and in windowsills and doorjambs. Other complaints include cockroach and rodent infestations, broken heating and air conditioning systems, and faulty smoke detectors. Residents say their concerns have been ignored, and instead were met with eviction threats.


  • When management told [tenant Trina] Henderson in writing that they found "no infestation of mold/mildew" in her apartment, Levin arranged a mold inspection that confirmed Henderson's suspicions: elevated levels of airborne mold, as well as surface mold. The May 24 report, by Folsom's Environmental Services, noted leaks from window sills and mold growing at the living room's sliding glass door.

For more, see Pittsburg residents suing apartment owner over mold.

Insurance Agent Negligent For Failure To Renew Windstorm Policy Shortly Before Hurricane; Found Liable To Owner For $29K+, Owner's Attorney For $165K

In Jefferson County, Texas, The Southeast Texas Record reports:

  • Nashib Investments landed a $29,550 jury award [...] for damages to its property on Major Drive following Hurricane Ike. However, the company also witnessed jurors award $165,000 to its attorney.

  • Last August, Nashib Investments filed suit against Y.K. Man and his insurance agency, alleging the agent negligently allowed the company's windstorm insurance policy to lapse days before Hurricane Ike made landfall on Sept. 13, 2008. From Sept. 8, 2009, to Sept. 15, 2009, TWIA placed a moratorium on writing insurance policies, but Nashib Investments claims it had authorized Man to renew the policy two weeks earlier, court papers say.


  • Jurors found Man negligent in failing to expedite renewal of Nashib Investments' Texas Windstorm Insurance Policy, awarding the company $9,500 in actual damages to its property and $20,000 in exemplary damages. Jurors also awarded Nashib Investments' counsel, Houston attorney James Amaro, $165,000 in attorney's fees and court costs.

For the story, see Jury awards 5 times more to attorney than plaintiff.

Thursday, July 15, 2010

Lien Stripping In Ch. 13 Bankruptcy A Neat Way For Qualified Underwater Homeowners To Stiff 2nd Mtg Holders w/out Risk Of Future Collection Attempts

In New York City, the New York Post reports:

  • Underwater homeowners are jumping onto an unexpected financial life raft that lets them escape crippling second mortgage debts and keep their homes -- Chapter 13 bankruptcy. It's an unprecedented byproduct of the housing price collapse, says New York City bankruptcy attorney David Shaev of Shaev & Fleischman.

  • How it works is this: If the home is appraised at less than the value of the first mortgage, the owner can apply for permission in bankruptcy court to reclassify the second mortgage debt. That changes it from a secured debt, which must be repaid, into an unsecured debt, which does not have to be paid in full. The homeowner can then focus on paying off the first mortgage.

  • "This is the only time where you see such a huge percentage of houses worth less than the first loan, allowing us to basically get rid of the second loan," says Shaev, who estimates that 20 percent of his Chapter 13 clients who own homes qualify for this type of workout. "We're at a unique place in history."

For more, see Liening on banks (Second mortgages are next housing crisis).

For an earlier "lien stripping" related post, see Lien Stripping Bankruptcy Court Trial Between Homeowner & 2nd Mortgage Lienholder A Battle Of "Dueling Appraisers"¬.

Alleged Loan Modification Rackets Wanted In Other States Now Operating In Washington Targeting Financially Struggling Hispanic Homeowners

In Yakima, Washingtom, KIMA-TV Channel 29 reports:

  • KIMA uncovered a scam preying on our area's Hispanic community. They tell families they can save their homes, with little to no money up front. But these loan modification companies end up being a con. And we found out it has pushed families deeper into debt, and in most cases, into foreclosure. "They get fliers at home or phone calls promising they won't lose their home and they will help them. And it ends up being a fraud," said Isabel Garcia, Single Family Housing Program manager with Catholic Charity Housing Services.


  • Two of the companies allegedly scamming people with loan modification loans are National Modification Service, and Lincoln Lending Services, LLC. Several state government officials are now taking a closer look at their lending practices. KIMA tried contacting both, but their phone numbers either didn't work or didn't exist.


  • Several state attorneys general are now suing these bogus loan modification companies. The AG's say the companies violated the Foreclosure Rescue Fraud Prevention Act and are seeking a temporary injunction against them until a judge decides their case.

For the story, see Home Refinance Scammers Target Hispanic Community.

New State Disclosure Law Targets Colorado Short Sale Flippers

In Denver, Colorado, the Denver Real Estate Examiner reports:

  • Governor Bill Ritter just signed HB 10-1133 into law, a bill that makes marked changes to the Colorado Foreclosure Protection Act. This applies to you if you are a real estate investor who buys and flips short sale properties. The bill’s target is the “short sale flipper.” So, for the investor who plans to sell a short sale property within 14 days of purchase, the new law will require you to inform all parties involved in the transaction (including all lenders) about both transactions (including the profit you will make).

For more, see Seller beware. New Colorado law adds oversight to short sale flips.

Alleged Loan Modification Racket Continues To Operate Despite Warnings From Law Enforcement, Lender

In Oakland, California, a recent story from The Bay Citizen shines some light on Priority Realty Group, a suspected loan modification, foreclosure rescue racket based in Southern California that has attracted attention from the media, the California Attorney General's Office, and the Better Business Bureau for, among other things, allegedly using written solicitations designed to create the false impression that the mailings are coming from lender JP Morgan Chase Bank:

  • Priority Realty is one of hundreds of for-profit companies that seek to benefit from the pain of homeowners hit hard by the recession. [...] When [struggling homeowner Giselle] Jiles called them, a representative of the company said they would handle her loan modification request if she paid them the equivalent of one mortgage payment.

  • To get around a new state law banning mortgage modification firms from charging for services in advance, a company representative said they would charge her “as services are rendered, every step of the way,” from a fee for receiving her loan information to a fee for faxing that information over to Chase.


  • Priority Realty has an F rating from the Better Business Bureau, and BBB’s website is full of complaints from homeowners who say they were swindled by the Southern California company. One of them, California National Guardsman Erik Kallstrom, said he paid Priority $1,632, persuaded by their 100 percent money back guarantee. But when the company failed to renegotiate his mortgage, it refunded only $25, saying the balance had been absorbed by “earned fees.”


  • Evan Westrup, a spokesperson for Attorney General Jerry Brown’s office, said Priority Realty has failed to register with his office or to post a $100,000 bond as required by state law. In the last two years, Brown has sought court orders to shut down more than 30 fraudulent foreclosure relief companies and has brought criminal charges and obtained lengthy prison sentences for dozens of other deceptive loan modification consultants. But Westrup admits that represents a small fraction of mortgage fraud being perpetrated.

  • The loan modification industry is filled with con artists and swindlers who rip off desperate homeowners,” he said. “Ultimately, consumers have to be able to spot a scam themselves.”

  • Chase spokesperson Tom Kelly said the bank’s legal department sent a strongly worded letter to the company, which “demanded that Priority Financial Group and its affiliates omit all references to Chase, Washington Mutual Bank, and any affiliates from its solicitations.” “The marketing campaign clearly creates a likelihood of confusion among Chase’s borrowers,” Kelly said.

  • Despite the letters from Chase and law enforcement, Priority Financial has continued to operate, but under a new name. David Gomez, who was listed with the Department of Real Estate as the company’s broker, said he is now the “branch manager” at the Freedom Law Center, which he said operates under a license from the State Bar. As such, he said, there was no need for his firm to register with the attorney general’s office or to pay a bond, adding that his company never poses as a bank.

For the story, see Using Chase Name, Phony Agents Prey on Homeowners (Foreclosure crisis primed fraudulent mortgage relief businesses).

Wednesday, July 14, 2010

Nevada AG Obtains Indictment In Alleged Loan Modification Ripoff

From the Office of the Nevada Attorney General:

  • [M]arisol Perez, 48, of Las Vegas, was indicted on charges of four felony counts of theft in connection with the operation of We Save Your Home, LLC, a foreclosure rescue business located in Las Vegas. The Indictment alleges that between July 2008 and May 2009, Perez misled customers into believing that, for a fee ranging from $1350 to $2000, she would guarantee a loan modification or reduction of the principal of her customer’s outstanding mortgage loans. After receiving payment, Perez failed to do any work on behalf of her customers.


  • The State alleges that Perez materially misrepresented that she would obtain a loan modification for her customers within 45 to 90 days. However, after receiving payment, Perez failed to negotiate with lenders on behalf of her customers and failed to give refunds despite promising to do so.

For the Nevada AG press release, see Four Felony Indictments In Mortgage Foreclosure Rescue Scam.

Homeowners Continue To Be Submarined By Lender Foreclosures Despite Being Promised Loan Modifications

ProPublica reports:

  • In May, we published a story about how disorganization at the big banks has led to mistaken foreclosures: homeowners were under review for a modification, but were suddenly foreclosed on because of a communication breakdown within the mortgage servicer. A recent survey of California housing counselors demonstrates that’s a widespread problem, at least in the Golden State.

For more, see Survey: Homeowners Working with Servicers Often Blindsided by Foreclosures.

See The Press Democrat: Frantic bid to save home and Complaints soar over loan modification misinformation for stories this week about a Santa Rosa, California couple who say they were submarined by a Bank of America foreclosure sale after allegedly being told that they qualified for a loan modification.

Bankruptcy Judge Rejects Debtor's Use Of Ch. 13 Petition In Attempt To Thwart Due-On-Sale Clause In Lender's Mortgage

A recent ruling by Judge Jeff Bohm of the U.S. Bankruptcy Court in Houston, Texas that addressed a number of issues has rejected an attempt by an individual Debtor's attempt use a Chapter 13 petition as a vehicle to thwart a mortgage lender's rights under a due on sale clause.

In the case, an individual, unbeknownst to the lender, acquired a home subject to the lender's mortgage from a third party (the original mortgage borrower), and then filed a Chapter 13 bankruptcy petition shortly thereafter, proposing to pay off the existing loan over a 60-month period, which would have effectively require the lender to allow the Debtor to take over payments on the loan without first evaluating the Debtor's credit and earning capacity necessary to repay the loan.

The ruling is somewhat "fact heavy" and addresses related issues that may be of interest to consumer bankruptcy litigators, and possibly real estate operators and others using the Chapter 13 process to game the bankruptcy system in furtherance of their property investment endeavors.

For the ruling, see In re: Mullin, Case No. 09-39760-H4-13 (Bankr. S.D. Texas, Houston Div., July 2, 2010).

Nebraska Bank Dodges $8M Bullet As Bankruptcy Court Ruling Invalidating Improperly Notarized Mortgage Is Reversed On Appeal

In a follow-up to an earlier post, the United States Bankruptcy Appellate Panel for the U.S. Court of Appeals, Eighth Circuit, has recently reversed a ruling by a Nebraska Federal Bankruptcy Court that had invalidated an $8 million mortgage due to the improper notarization by the bank's president of a mortgage securing a loan taken out by the executive's brother-in-law.

The thumbnail summary of the court's reasoning for the reversal in this case (appearing on the 8th Circuit's website, prepared by the court's clerk, and not a part of the opinion) states:

  • BowlNebraska failed to demonstrate that it was without actual or constructive notice of the Bank's interest and thus a bona fide purchaser under Nebraska law; consequently, it could not avoid the bank's liens pursuant to the strong-arm provisions of the Bankruptcy Code, and the district court's judgment in favor of BowlNebraska avoiding the liens is reversed.

For the ruling, see In re BowlNebraska, L.L.C. (aka BowlNebraska, L.L.C. v. Omaha State Bank), No. 10-6016 (B.A.P. 8th Cir., July 1, 2010).

For the earlier post, see Bank President Laments: "Never Do Business With Family!" As Improper Notarization Allows Brother-In-Law/Borrower To Successfully Void Lender Mortgage.

Tuesday, July 13, 2010

Another Lawyer/Closing Agent In Hot Water Over Missing Escrow Cash To Pay Off Mortgages; Refinancing Borrowers Getting F'closure Threats Tip Off Bank

In Hamilton County, Ohio, the Cincinnati Enquirer reports:

  • An Edgewood lawyer who acts as the title agent for Fifth Third Bank mortgages is accused of keeping more than $1.1 million and the bank wants it back. The Cincinnati-based bank is suing Donald Richardson and his Commitment Title Agency in Hamilton County Common Pleas Court, accusing them of fraud, unjust enrichment and other allegations involving the missing money.

  • Fifth Third has used Richardson and his title company to refinance many home mortgages. But in one week in May, the bank's suit notes, Richardson didn't turn over $1,124,034.63 from five refinanced mortgages financed by the bank.

  • The bank found out about the incidents when their customers called to complain about their old mortgages not being paid and receiving foreclosure threats. Because the bank didn't want those five refinanced homes to go into foreclosure, it forked over an additional $1.1 million to pay off the old mortgages. Neither Richardson nor his attorney returned calls Friday.

  • The bank asked Common Pleas Court Judge Dennis Helmick to prevent Richardson from selling his Villa Hills house, the building housing his business office or his cars - and to prevent him from spending any of the money they say belongs to the bank. Richardson and his title company "pose a significant risk of liquidating their assets and property and fleeing," the suit notes. It adds the bank suspects there are other similar transactions involving Richardson where money is missing and continues to investigate.

  • To complete a home refinancing, the bank placed in escrow the money to pay off the old mortgage. Richardson and his title company didn't forward that money to pay off the mortgages but kept it, spending it on the "purchase of real and personal property, to pay personal debts and to otherwise convert the funds to their own use," the bank suit alleges. It adds that Richardson transferred over $1 million from that escrow account to bank accounts owned by him and his title company. [...] It's unclear if Richardson has been criminally charged.

For the story, see Bank: Title agent kept mortgage funds.

(1) Inasmuch as Richardson is an attorney, this could spell bad news for the The Clients' Security Fund of Ohio, which was established to provide assistance to clients who have been ripped off by the dishonest conduct of a licensed Ohio attorney. According to a June 10, 2010 news release, the Board of Commissioners of the Clients’ Security Fund of Ohio (CSF) awarded $411,230 to 52 victims of attorney theft at its latest meeting. Eighteen former or suspended Ohio attorneys were found to have misappropriated client funds. Five deceased Ohio attorneys were also involved in the claims presented to the board. See Victims of Attorney Theft Awarded More Than $400,000 by Clients' Security Fund. See also, Victims of Attorney Theft Received Nearly $700,000 in Fiscal Year 2009.

For information on "attorney ripoff reimbursement funds" in other states and Canada, see:

Federal Judge Issues Arrest Warrants For Foreclosure Rescue Scammers For Failing To Appear At Sentencing In Sale Leaseback, Equity Stripping Ripoff

In Honolulu, Hawaii, the Honolulu Star Advertiser reports:

  • A U.S. district judge issued two arrest warrants yesterday for an Oahu couple convicted of mortgage fraud after they did not show up for their sentencing. The couple—John Dimitrion and Julie Anne Baldueza Dimitrion—were scheduled to be sentenced on charges that they ran a fraudulent mortgage scheme that almost left three Oahu families homeless.


  • Under a plea agreement struck in April 2009, John Dimitrion pleaded guilty to one charge each of conspiracy to commit mail fraud, wire fraud, money laundering and making false statements on loan applications. He faced a maximum of 45 years in prison and $1.5 million in fines. Julie Anne Dimitrion entered into a similar deal, pleading guilty to everything her husband did, except wire fraud. She faced a maximum of 30 years behind bars and $1.25 million in fines.

  • The Dimitrions admitted to offering to help homeowners facing foreclosure by arranging fraudulent loans for straw buyers for the homes. The couple—owners of Mortgage Alliance LLC and Global Financial Holdings LLC—then drained equity from the properties and tried to evict the homeowners. The Dimitrions also skimmed off thousands of dollars in processing fees from the loans.

For the story, see Mortgage fraud couple wanted by law (Warrants are issued for John and Julie Anne Dimitrion, who failed to show for sentencing).

See alao, KITV-TV: FBI Hunt For Fugitive Married Couple ($1,000 Reward Offered For Capture).

For an earlier post on this story, see Hawaii Feds Ring Up 2 More Guilty Pleas In Sale Leaseback Foreclosure Rescue Scam; Civil Case Continues As One Victim Seeks To Recover Property Title.

Mortgage Elimination Scammers' Claim That Judge Erred By Failing To Assign Counsel After They Insisted On Self-Representation Falls On Deaf Ears

In San Francisco, California, The Oakland Tribune reports:

  • A federal appeals court issued a stinging decision Tuesday upholding the convictions of a pair of Bay Area scam artists who made millions by claiming they could help people eliminate mortgage debts. Kurt Johnson, of Sunnyvale, and Dale Scott Heineman, of Union City, who operated the Dorean Group in Union City and Newark in from 2003 to 2005, were convicted in 2007 of one count each of conspiracy and 34 counts each of mail fraud. Johnson was sentenced in 2008 to 25 years in federal prison, Heineman to 21 years and eight months.

  • "They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish," 9th U.S. Circuit Court of Appeals Judge Barry Silverman wrote in the ruling. "Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder."

  • The trial judge held several days of hearings in which Johnson and Heineman were extensively advised of the risks of self-representation, Silverman noted. "The judge practically begged them to accept counsel, but they refused," he wrote. On appeal, they claimed the trial judge should have forced attorneys upon them because of what they described as their own "nonsensical" legal "antics" during the trial.(1)


  • Prosecutors said Johnson and Heineman victimized at least 20 lenders and as many as 3,500 homeowners across 35 states with their idea that borrowers could ditch their mortgage debts through a legal and bureaucratic process. Homeowners first transferred their interest in their properties to a trust, naming Johnson and Heineman as trustees. The pair would then send demand notices to the lenders questioning the validity of their lending practices.

  • When banks failed to respond or "prove" their lending practices were valid, the pair recorded bogus documents with county clerks' offices supposedly establishing that the homes were no longer under a mortgage. The homeowners then refinanced with different banks using their supposedly unencumbered homes as collateral.

For more, see Mortgage scam artists' convictions upheld.

For the court ruling, see USA v. Johnson, No. 08-10147, No. 08-10258 (9th Cir. July 6, 2010).

(1) Judge Silverman prefaced his ruling with the following observation about these characters (bold text is my emphasis, not in the original text):

  • Defendants Kurt F. Johnson and Dale Scott Heineman were indicted for conspiracy and multiple counts of mail fraud related to their illegitimate debt-elimination business. They were adamant in their desire to represent themselves and assert an absurd legal theory wrapped up in Uniform Commercial Code gibberish. Both defendants were examined by a psychiatrist and found to have no diagnosable mental disorder. Thereafter, the district court conducted Faretta hearings spanning several days in which the defendants were extensively advised of their right to counsel and the disadvantages of self-representation. The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right.

  • Defendants now contend that Indiana v. Edwards, 554 U.S. 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their self-representation because of what they describe as their “nonsensical” legal “antics” after the trial began. They say they may have been competent to stand trial but not to represent themselves.

  • The record clearly shows that the defendants are fools, but that is not the same as being incompetent. Under both Faretta and Edwards, they had the right to represent themselves and go down in flames if they wished, a right the district court was required to respect.

  • There was no legal or medical basis to foist a lawyer on them against their will. We also hold today that there was no basis for the recusal of the district judge nor error in any of the jury instructions.

Judge Silverman indicated in a footnote that a Faretta hearing (referring to the U.S. Supreme Court decision in Faretta v. California, 422 U.S. 806 (1975)) established that a defendant has the constitutional right to represent himself when he voluntarily and intelligently elects to do so.

"Discrimination Is Alive & Well In America Today" Says NY AG After Bagging Two Brooklyn Landlords In Undercover Race-Bias Rental Sting

In Brooklyn, New York, the New York Post reports:

  • Two Brooklyn landlords were nabbed in an undercover sting after they brazenly told black apartment hunters that no suitable units were available, while rolling out the red carpet for potential white tenants, Attorney General Andrew Cuomo charged [].

  • Investigators posing as would-be renters discovered that rental agents at two Ocean Parkway buildings routinely showed apartments to white applicants while telling black applicants none were available, according to court documents. In at least two cases, two sets of black would-be tenants were blatantly turned away from the 71-unit housing complex at 1648-50 Ocean Parkway hours before a white couple was invited to apply.

  • "Discrimination is alive and well in America today," Cuomo said at news conference to announce the action.

For more, see Bias scamlords (Lied to blacks: Cuomo).

For the NY AG press release, see Attorney General Andrew Cuomo, Joined By Lawmakers, Announces Lawsuits Against Landlords For Race Discrimination After Undercover Investigation (Landlords in Brooklyn and the Capital District Denied Access to Apartments to Black Applicants; Cuomo also Reaches Agreement with a Second Brooklyn Landlord as Part of Ongoing Investigation).

For the lawsuits, see:

Monday, July 12, 2010

Bankruptcy Court Slams Loan Servicer With $66K Punitive Damage Award To Homeowner For Flagrant Violations Of Discharge Injunction, Related Court Order

A U.S. Bankruptcy Court in Raleigh, North Carolina recently belted Ocwen Loan Servicing LLC with punitive damages in favor of a homeowner/couple in the amount of $66,300 for a "knowing, willful, and flagrant violation of both the discharge injunction" and a related court order.

In a nutshell, Ocwen incorrectly reported information about the homeowners to credit bureaus showing their home was in foreclosure when such was not the case, assessed principal, fees and costs on a debt that was already discharged by the court, applied payments received from the homeowners to these bogus charges instead of to the loan principal, and did nothing to correct its records or otherwise take corrective action despite having the erreonoeus reporting brought to their attention.(1)

For the ruling, see In re Adams, Case No. 04-003875-5-SWH (Bankr. E.D. N.C. Raleigh Div. July 7, 2010).

(1) From the court's ruling (bold text is my emphasis, not in the original text):

  • The May 23, 2008 order was in the debtors' "favor" in that it established that their mortgage payments were deemed current and specifically set forth that a violation of the order would be sanctionable. Ocwen not only violated the terms of that decree by continuing to assess discharged principal, fees and costs, but did so, knowingly, over a prolonged period of time even after such violations were brought to its attention by: 1) debtors' counsel, 2) the female debtor, and 3) the filing of the show cause motion.

  • The debtors' testimony indicated that they suffered harm as a result of Ocwen's violation of both the May 23, 2008 order and the discharge injunction. They were unable to refinance their home at market rates because their credit report erroneously showed their Ocwen loan in foreclosure; they incurred attorneys' fees to attempt to rectify the erroneous reporting and bring the matter to the court's attention; they incurred appraisal fees in their futile refinancing efforts; they spent time out of court trying to resolve the show cause motion and time in court during the hearing; and their credit was damaged by the detrimental reporting.


  • There is no question whatsoever that Ocwen's actions establish civil contempt of the court's order. At the hearing, the court was presented with no evidence that Ocwen has taken any action to correct its records or the reports it makes to credit companies regarding the debtors' loan, either prior to or after receiving the debtors' motion to show cause. During the period from at least the filing of the debtors' motion to show cause and the hearing on May 26, 2010, the court finds that Ocwen has been in knowing, willful, and flagrant violation of both the discharge injunction and this court's May 23, 2008 order.


  • Ocwen does not dispute that it has, from late 2007 through virtually all of 2008 and well into 2009, reported the Adams' mortgage as being in foreclosure, despite the fact that no foreclosure proceeding ever was commenced. The statements Ocwen sent to the debtors show that it has regularly assessed foreclosure costs and fees, and applied the debtors' payments to those costs and fees instead of to the principal.

  • Most recently, Ocwen informed the Adams by letter dated May 26, 2010, in response to the Adams' inquiry regarding the credit history of their loan over the most recent 12 months, that it had reported the loan as in foreclosure for May, June, July and August of 2009. All during that time, Ocwen purportedly was working with the debtors to modify their loan terms — as a result of the original erroneous reporting. Ocwen either intended to hold the debtors hostage to its glacial (and unfruitful) negotiations, or concluded that it could knowingly disregard the responsibilities with which it was charged by both the Bankruptcy Code and the May 23, 2008 order of this court.

  • That it did so, with actual knowledge, for such a prolonged period of time is especially egregious. Ocwen's cavalier attitude toward the discharge injunction, the terms of an order of this court, and the effect of its actions on the debtors is wholly unacceptable. The fact that Ocwen is unwilling to acknowledge the seriousness of this matter even today carries significant weight with the court. As the court informed the parties at the conclusion of the show cause hearing, sanctions are warranted in this matter. It is obvious that only significant monetary sanctions will get Ocwen's attention.


  • The court finds it not only appropriate to award punitive damages, but necessary. Ocwen has given every indication that it is and will remain indifferent to the statutory significance of the discharge injunction and to the express terms of the May 23, 2008 order, unless it is compelled to take note. See Cherry, 247 B.R. 176, 189-90 (discussing cases within the Fourth Circuit in which punitive damages for contempt, and violation of the discharge injunction, were in issue). As the Cherry court points out, the standard by which courts assess the propriety of an award of punitive damages varies, but tends to require some indication of "egregious conduct," "malevolent intent," or "clear disregard of the bankruptcy laws" — in other words, some element indicative of a "specific intent to violate an order or discharge injunction." Under any of these measurements, Ocwen's intentional, unfounded, prolonged violation of the discharge injunction and this court's order warrants punitive sanctions.

  • An appropriate measure of punitive damages for Ocwen's violation of the discharge injunction and the court's order of May 23, 2008 is a sanction in the amount of $66,300. This amount represents $100 per day from September 12, 2008, which is the date on which Ocwen was served with the debtors' motion to show cause, through the date of entry of this order. These damages will not accrue during the fourteen days following the date of entry of this order, but will resume, if necessary, at $100 per day, as outlined below, if Ocwen does not fully comply with the terms that follow. A punitive sanction of $100 per day for Ocwen's actions over the duration of this matter is commensurate with its offense. The significant total derives from the duration of the offense, which was decidedly within Ocwen's own control.

Failure To Assign Note Along With Mortgage Sinks Foreclosing Lender, Says NJ Judge; Delinquent Borrowers Still Own Home With $1.4M Unpaid Mortgage

In Atlantic City, New Jersey, reports:

  • With mortgage loans increasingly chopped up and repackaged into other investments, lenders must be able to demonstrate they still hold the underlying note before they can foreclose on a property, a Superior Court judge has ruled.

  • In Atlantic City, Judge William C. Todd dismissed The Bank of New York's attempt to foreclose on a Brigantine house, saying the bank had not adequately documented that it holds the mortgage after a complex trail of financial transactions. The ruling is not binding on other courts, but pulls New Jersey into a trend emerging in other states, what some observers have called a "borrower rebellion."

  • Besides triggering a financial crisis and a taxpayer bailout, the increasingly exotic market in mortgage-related securities has become hard for the layperson to follow, said Karen DiPrima, spokeswoman for Garrabrant's firm, Flaster/Greenberg PC.

  • The new ruling "is ironic, because as the transactions get more complicated, we've seen people in foreclosure get confused while trying to find out who holds their mortgages, and now banks seem to be falling into the same little web."

  • Krywopusk and Michael Raftogianis bought the beachfront house in Brigantine in September 2004 as an investment, Garrabrant said. They took out a mortgage of almost $1.4 million from American Home Mortgage Acceptance Inc.
At the time, "they were buying a number of properties in the area, but then the real estate market did what it did," Garrabrant said.


  • [I]n February, MERS said that as nominee for American Home Mortgage Acceptance, it had assigned and transferred the mortgage to the bank. While that may have been "intended" to transfer the debt, Todd wrote, "it is now apparent that is not what occurred."

  • The Bank of New York needed to show that it was not merely the trustee for investors, but actually held possession of the mortgage note. But that got more difficult as the court asked for documentation. A copy of the endorsement provided to the court, intended to show the note had been transferred to the bank, was blank, the judge wrote.(1)


  • The dismissal is almost certainly not the end of the case. The Bank of New York did not respond to a request for comment. But Garrabrant acknowledged he would be "surprised" if the bank does not re-file a foreclosure action with some documentation. Even so, he said, this outcome is not a foregone conclusion. In the meantime, that beachfront house belongs to Krywopusk and Raftogianis, Garrabrant said, "and it's for sale."

For the story, see N.J. judge rules lenders must prove they hold note before they can foreclose on a property.

(1) According to the story, the case ultimately turned on the the failure by the foreclosing lender to provide "any meaningful proofs as to the transfer or negotiation of the note" or when that occurred, Judge Todd wrote.

Conflict Of Interest Problems Continue Dogging Notorious Buffalo-Area Foreclosure Mill In Homeowner's Upcoming NYC Bankruptcy Proceeding

In New York City, the New York Post reports:

  • A Bronx homeowner is scheduled for a courtroom battle royale later this month -- facing off in Manhattan bankruptcy court against the largest foreclosure mill in the state to see if the firm's client, GMAC Mortgage, has the right to toss her from her Pelham Gardens home.

  • Also at issue is whether the law firm, Steven J. Baum PC, may have a conflict of interest problem. The lawyer for the homeowner, David Shaev, claims in recently filed court papers that a Baum lawyer allegedly represented GMAC without disclosing she worked for Baum.(1) The thorny issue is of growing interest to New York judges -- who last year faced more than 50,350 foreclosure actions, according to RealtyTrac, many of which were brought by banks that have sold or securitized the loans. Such actions make proving which entity owns the loan difficult.

  • That issue is key -- banks that can't prove they own a loan can't legally foreclose. At times, lenders and law firms have been chastised for taking short cuts to gloss over the ownership issue.

  • Complicating matters is that most delinquent homeowners battle foreclosure actions without a lawyer and get steamrolled. But that may be changing. On June 3, Bankruptcy Judge Allan Gropper denied a bank's attempt to move against a homeowner because it couldn't prove it owned a mortgage. Five days later, Brooklyn state court Judge Wayne P. Saitta, citing a bank's "egregious" misrepresentation, awarded a homeowner $10,000 in sanctions when the bank tried to evict knowing it didn't own the mortgage.

  • "The court can only speculate in how many other cases plaintiffs with no interest in mortgages wrongfully foreclose on them and collect proceeds to which they are not entitled," Saitta wrote in his order. "It is only because this was one of the rare foreclosure cases where the defendant was represented by counsel that the fact that the [bank] did not own the note came to light," Saitta continued.(2)

Source: GMAC faces New York foreclosure brawl.

(1) For earlier posts on problems facing the foreclosure mill firm Steven J. Baum P.C. see:

(2) For another of Judge Saitta's recent rulings denying foreclosure, without prejudice, to a standing-lacking lender, see Bank of NY v Alderazi, 2010 NY Slip Op 20167 (NY Sup. Ct. Kings Cty. April 19, 2010).

MD Homeowner Barely Beats Statute Of Limitations; Scores Triple Damages Of $700K After Being Screwed Over In Sale Leaseback, Equity Stripping Ripoff

In Baltimore, Maryland, The Maryland Daily Record reports:

  • An Ellicott City woman was awarded $700,000 [...] after falling victim to a foreclosure rescue scam. The judgment in favor of Susan Spicer includes $460,000 in non-economic damages, an amount Baltimore County Circuit Court Judge Patrick Cavanaugh doubled from the $230,000 he calculated in economic damages under the guidelines of the Protection of Homeowners in Foreclosure Act.(1)

  • Jane Santoni, Spicer's lawyer, said Spicer's experience was a "classic" one that the law was designed to target. "People do have recourse," said Santoni, of Williams & Santoni LLP in Towson. "When you have a strong law in place, you have a fighting chance."

  • Spicer and her husband took out a mortgage on her Catonsville property in October 2004 in order to pay some bills, according to the complaint. Spicer fell behind on her payments in 2005, and her lender, Royal Financial Services LLC in Owings Mills, began foreclosure proceedings that fall.

  • Royal Financial is an affiliate of New Towne Properties LLC in Owings Mills, which is operated by Robert Hurd, according to the complaint. Hurd called Spicer the day before the foreclosure sale and told her "he could keep her in the home if she could come to his office the next day to sign some papers," according to the complaint.

  • Hurd told Spicer that if she paid rent for one year, she could stay in the house and then "revert back to the original mortgage," the lawsuit states. Spicer deeded the house over to Royal Financial for $42,000, less than $200,000 of its value, the lawsuit states. The lease agreement called for Spicer to pay $775 a month, more than twice as much as her monthly mortgage payments, the complaint states. New Towne ultimately sold the home to someone else for $265,000 in the summer of 2006, according to the lawsuit and state property records.

  • Spicer was forced to move into a basement-floor apartment, Santoni said. "It was devastating to her," she said. Judge Thomas J. Bollinger Sr. granted the plaintiffs' motion for summary judgment in May, leading to Monday's damages hearing. Cavanaugh awarded Spicer nearly $231,000 in economic damages, the difference between the value of the house and what Spicer owed plus the rent she paid and the $1,200 she paid Hurd to complete the deed transaction, Santoni said. The judgment also includes $10,000 in attorney's fees. Hurd did not return a phone call [] afternoon seeking comment.

  • Santoni said Spicer was pleased with the judgment, particularly since Spicer filed the lawsuit the day the statute of limitations expired in 2008 because she had a "fatalistic" outlook. "She felt she finally had somebody to listen to her," Santoni said.

Source: Real estate scam victim awarded $700K under foreclosure law (paid subscription required; if no subscription, TRY HERE - courtesy of

(1) In this case, the screwed-over homeowner opted to seek monetary damages as compensation for being ripped off in lieu of attempting to unwind/undo the scam. In some cases, homeowners may opt against monetary damages as the remedy and, instead, seek to restore title to the home in their name. In this regard, they seek a judicial determination voiding the title conveyance altogether, along with invalidating the new mortgage obtained by the foreclosure rescue operator (or straw buyer) in the course of pulling off the equity stripping manuever. See, for example, Maryland High Court Revives Ex-Owner's Attempt In Civil Lawsuit To Undo Metropolitan Money Store Sale Leaseback Foreclosure Rescue Home Equity Ripoff.

Sunday, July 11, 2010

C. Fla. Bkrptcy Court Nixes Trustee's Overly Legalistic Interpretation Of State Homestead Law In Failed Attempt To Snatch Family Home Away From Debtor

From a recent post on the Florida Asset Protection Blog:

  • Can a debtor protect a future legal interest in his primary residence under Florida homestead laws? In this bankruptcy case a debtor’s mother owned a property where the mother and the debtor resided with the debtor’s spouse and children. The mother executed a deed transferring title to the debtor reserving a life estate to the mother. (A "life estate" means the mother owns and controls the property and as long as she is alive). The debtor’s mother was old with a short life expectancy.

  • The debtor filed Chapter 7 bankruptcy and claimed his future legal interest in his mother’s house as an exempt homestead asset. The trustee objected to the debtor’s exemption because the debtor’s interest in the property was only a future "remainder interest" [...]. The trustee wanted to take and sell the debtor’s interest in the house which would vest upon his mother’s death in the reasonably near future.

  • The court said that the debtor’s future ownership rights was protected under Florida’s homestead laws. The court pointed out that the debtor occupied the home with his family as a family residence, and that the debtor contributed financially to the repairs and upgrades to the house. The court held that the debtor’s present right of possession is sufficient to qualify the house as an exempt homestead.(1)(2)

Source: Future Interest In Residence Protected From Current Creditors And Bankruptcy Trustee.

For the court ruling, see In re: Williams, Case No. 3:09-bk-586-PMG (Bankr. M.D. Fla., Jacksonville Div., March 31, 2010).

(1) In reaching its conclusion, the court made the following, among other, observations regarding the application of the homestead exemption against forced sale under Article X, Section 4 of the Florida Constitution with respect to those Florida residents holding a remainder interest in real estate (aka "remaindermen") within the state (bold text is my emphasis, not in the original text):

  • Allowance of the homestead exemption to remaindermen who occupy the property as their home in circumstances such as this is consistent with the Constitution's emphasis on the residential use of exempt property. "The availability of the homestead exemption is not dependent upon any strict or legalistic interpretation of the quality and nature of the property or of the quality of the debtor's title. The Court must instead focus on the circumstances and the debtor's intent to make the property his homestead and the debtor's actual use of the property as his principal and primary residence." In re Dean, 177 B.R. 727, 729 (Bankr. S.D. Fla. 1995).

  • "[E]ven if she merely retained possession of the land, it is of sufficient value to her to have it protected under the homestead law, and it is of no concern to the creditor that another has the superior title." Hill v. First National Bank of Marianna, 75 So. 614, 617 (Fla. 1917). "Actual 'family' occupancy and the intention to continue occupying the home have been held to be the key qualifications for homestead status and the protections deriving from that status under the Florida Constitution." Edward Leasing Corporation v. Uhlig, 652 F.Supp. 1409, 1412 (S.D. Fla. 1987). See also Southern Walls, Inc. v. Stilwell Corporation, 810 So.2d at 572.

  • Allowance of the homestead exemption to remaindermen who reside on the property in circumstances such as this is also consistent with the historically liberal construction of the exemption which favors the protection of the family home. Southern Walls, 810 So.2d at 569-70. The allowance promotes the constitutional purpose of securing a home to the householder, so that the homeowner and his family can live beyond the reach of financial misfortune. Snyder v. Davis, 699 So.2d at 1002.

  • Finally, it is also noteworthy that Courts in other jurisdictions have allowed remaindermen to exempt their interests in property on which they resided. In In re Cain, 235 B.R. 812 (Bankr. M.D. N.C. 1998), for example, the Court allowed a remainderman to claim a homestead exemption for property in which he had resided for a year. In construing North Carolina law, the Court stated:

    There is nothing in the statute which explicitly precludes the exemption claimed by the Debtor. Under the wording of the statute the Debtor must own an interest in the real or personal property in which the exemption is claimed. There is no limitation or restriction in the statute regarding the nature or extent of the interest which must be owned. . . . The next requirement under the statute is that the real or personal property in which the debtor owns an interest must be used as a residence by the debtor or a dependent of the debtor. This is the only requirement under the statute which is related to possession of the property and the only possessory interest required is that either the debtor or a dependent of the debtor use the property as a residence. There is nothing in the statutory language which requires that the debtor's use of the property be a matter of right based upon the debtor being the sole owner of a fee simple absolute title to the property.

  • In re Cain, 235 B.R. at 816-17 (Emphasis supplied). See also In re Kimble, 344 B.R. 546 (Bankr. S.D. Ohio 2006)(the debtor's remainder interest in property occupied under an oral lease with his mother qualifies for the exemption provided under Ohio's homestead law), and In re Eskew, 233 B.R. 708 (Bankr. W.D. Texas 1998)(the debtors' reversionary interest in their residential property was properly claimed as exempt under Texas homestead law).

(2) For those desiring to transfer a remainder interest to an adult child as was done in this case, use of a "Lady Bird Deed" (ie. an enhanced life estate deed) to make the conveyance would accomplish the transfer and, at the same time, avoid all the complications that may arise if the adult child subsequently gets into hot water with creditors (or, as in this case, a bankruptcy trustee). It has been described as working like a traditional Life Estate Deed, but going beyond a life estate deed, because not only does the life tenant get to live there for life, that former owner also reserves more than just a life estate. Also reserved are the rights to sell, commit waste, and almost everything else, except the transfer on death to the "remainderman". In effect, the remainderman is being treated for some purposes as holding only a contingent remainder interest in the subject property for as long as the holder of the life estate is alive. Use of this specially designed instrument is not available in all states.

See also:

Go here for other links for Lady Bird Deeds.

Debt Collection Scam Duped Now-Ex Attorney; Forced Him To Come Clean, Cop Felony Plea On $1.5M+ Client Swindle; State Bar's "Ripoff Fund" Left On Hook

In Montgomery County, Maryland, The Maryland Daily Record reports:

  • Had the American Bar Association's warning of the scam come three months earlier, disbarred lawyer Bradley D. Schwartz might not be facing a possible prison sentence. Schwartz, who consented to disbarment last year amid allegations of having dipped into client funds, pleaded guilty last week to felony theft in Montgomery County Circuit Court.

  • Prosecutors said Schwartz, 62, stole more than $1.5 million from about 20 clients over the past five years. Montgomery County Circuit Judge Steven G. Salant is scheduled to sentence Schwartz on Aug. 23. As The Washington Post first reported [...], Schwartz's scheme might have gone undetected had he himself not fallen victim to a con aimed at attorneys.

  • Around December 2008, Schwartz was contacted by a purported Singapore company, saying it needed legal help collecting debts in the United States. Schwartz agreed to represent the firm and soon received a $385,000 check from a purported debtor. He deposited the check and used the funds to pay clients whose money he had skimmed, prosecutors said. When the "debtor's check" turned out to be bogus, Schwartz's bank contacted authorities and prosecutors began to investigate.

  • A short time later, Schwartz contacted Maryland Bar Counsel Melvin Hirshman to confess to having misused client funds. "He called me from South America and told me what he had done," Hirshman said Friday. The clients have been reimbursed through the Client Protection Fund,(1) Hirshman added. Schwartz, in turn, is reimbursing the fund "to a degree that he's able," said his defense attorney, Thomas L. Heeney.(2)

  • In addition, Schwartz has changed his life-insurance policy to name the fund as a beneficiary of $750,000, said Heeney of Heeney & Arii Chtd. in Rockville. On Feb. 6, 2009, the ABA posted on its website a story warning its members of the debt-collection scam. Schwartz was disbarred by consent on March 23, 2009.

Source: Ex-lawyer duped by scam pleads guilty in Montgomery County Circuit.

(1) If a Maryland attorney, either in the course of representing you or acting as a fiduciary, screws you out of money or property through dishonest conduct, go to the The Client Protection Fund of the Bar of Maryland (formerly "The Clients' Security Trust Fund") for information on how to recover some or all of your losses from the fund.

For other states and Canada, see:

(2) My guess is that, to the degree Schwartz is unable to cough up the cash to reimburse the Client Protection Fund, the rest of the licensed attorneys in Maryland may be hit up in the form of increased fees when their law licenses come up for renewal in order to replenish the fund.

Man Acting As Trustee For 2 Kids Gets 30 Days For R/E Title Transfer To Himself Followed By Loan Ending In F'closure; Used Cash To Pay Child Support

In Lebanon, Ohio, WLWT-TV Channel 5 reports:

  • A Kettering man was sentenced [] after he was convicted of stealing his children's inheritance money. Scott Andrews was named trustee of the estate left to his two children by his father, with $25,000 in real estate held in trust for each child until they were 25 years old. Prosecutors said the 39-year-old Andrews transferred the property to himself without receiving prior approval from the probate court, refinanced the house and used the money to pay for his own expenses.

  • "Andrews had even used some of the money to pay his child support payments for these two minor children, thereby using the minor children’s own money to pay the child support they were entitled to receive from Andrews," prosecutors said in a statement.

  • Andrews eventually spent all the money and was unable to make the mortgage payment, which caused the home to fall into foreclosure, leaving the children without their inheritance. A judge sentenced Andrews to 30 days in jail and five years of community control and ordered him to pay restitution to the children.

Source: Kettering Man Stole Children's Inheritance (Man Used Stolen Funds To Pay Child Support).