Ex-Realtor Association President Charged With Ripping Off Patio Bricks, Landscaping Blocks From Home In Foreclosure & Listed For Sale By Another Agent

In Joplin, Missouri, The Joplin Globe reports:

• A Joplin real estate agent is to appear for a court hearing later this month on a felony charge in the theft of patio bricks and landscaping blocks from a property that was in foreclosure and being listed by another agent. Cheryl A. Chandler-Arwood, 45, and Jeffrey L. Wilson, 50, were arrested by a Jasper County sheriff's deputy who authorities said was responding to a report late last month of suspicious activity late at night outside 2935 N. Oak Valley Lane between Joplin and Carl Junction.

• The deputy encountered a pickup truck in the driveway of the address. The truck's license plates had been removed, and the deputy discovered a pair of leather gloves that had fallen from the passenger-side door of the truck and a flashlight on the passenger-side floorboard, according to a probable-cause affidavit. A "Carthage Tigers" decal on one of the truck's window had been covered with a piece of paper, the affidavit states. In the bed of the truck, the deputy saw about 100 landscaping bricks, the document states.

• The deputy detained Chandler-Arwood and Wilson, and questioned them about their presence on the property. The affidavit states that Chandler-Arwood told him she had permission from the listing real estate agent to take the bricks from the residence. But when the listing agent was contacted by the deputy, he told the officer no one had permission to remove anything from the property.

***

• Chandler-Arwood, who was president of the Joplin Board of Realtors in 2009, was arrested along with Wilson. [...] The Ozark Gateway Association of Realtors issued a statement after being contacted by the Globe concerning the matter. The statement said the association's board of directors met after learning that a member had been charged with theft, and took action to deny the member continued access to electronic lockboxes that real estate agents use to access keys for showing properties to interested buyers.

For the story, see Joplin real estate agent charged with felony theft. (if link expires, try here).

Neighborhood Evacuated After Home Buyer Of Recently Foreclosed House Finds Apparent Pipe Bomb On Premises

In Spartanburg, South Carolina, WSPA-TV Channel 7 reports:

• The Spartanburg County Sheriffs Office bomb squad was called to a home on Rock Springs Drive in Spartanburg Tuesday afternoon. The Westview Fairforest Fire Department evacuated part of the neighborhood, after the homeowner and some workers, discovered what appeared to be a pipe bomb below the house, complete with a fuse.

• The homeowner had no idea where it came from, saying the home was recently purchased two weeks ago, after the home was under foreclosure. The bomb squad spent more than two hours, in protective suits, getting the device and placing it in a special truck. The devide was taken to a special location where it will be xrayed and then detonated.

Source: Neighborhood Evacuated After Possible Pipe Bomb Found Under Home.

Tenants Fear More Of The Same As They Struggle To Hang On In Dilapidated Bronx Building Sold For 3rd Time In Four Years

In The Bronx, New York, Crain's New York Business reports:

• [Martha] Castro has called Apartment B on the ground floor of 1585 E. 172nd Street home for 22 years. Conditions were never perfect, but rats, leaking pipes and frigid, heatless winter nights turned into chronic problems around four years ago, not coincidentally just as the real estate bubble swelled.

• That's when a new business model emerged in city real estate, especially in the Bronx. Investors looking for big returns swooped in to buy Ms. Castro's apartment building and others just like it, taking over from traditional landlords who had been content with the steady income produced by the apartments' stabilized rents. Focused on raising rents and making a quick killing, these speculators badly miscalculated. They overpaid, leaving nothing on the table to pay for maintenance and repairs.

• Ms. Castro's building has had the misfortune of cycling through two such owners in four-plus years. Now, the little-known Bluestone Group has stepped forward to buy the debt on the building and five others in the same portfolio, forking over an estimated $10 million. The question on tenants' minds: Will Bluestone prove their savior, or are they destined for another excruciating cycle of neglect? Early indications have them worried.(1)

For more, see The new guys (Bronx slum gets third owner in four years. Can this one succeed where others failed?) (if link expires, try here, then click link for the story).

(1) According to the story, among those who have invested with Bluestone are Joseph Friedman and Sol Gross, executives whose extensive Pilgrim Icahn network of transitional homeless housing was cited by Comptroller John Liu earlier this year for hazardous conditions and for reaping $4.3 million in fiscal 2008 to house clients longer than they were supposed to stay in their facilities. Among the hazardous conditions were rodent droppings and roach infestation, leaking pipes, moldy walls and entrance doors without locks, the story states. The tenants worry that Bluestone's ties to Mr. Friedman could mean the firm wants to turn the properties into homeless housing, which can produce more income than stabilized rents, according to the story. “There is no way they can make their money on these units with anything short of a homeless voucher,” one prominent real estate executive reportedly said.

Tenant Gets Caught In Middle Of Rent Grab Between Financially Struggling Condo Association & Deadbeat/Rent Skimming Landlord

In Sarasota, Florida, the Sarasota Herald Tribune reports:

• Paula Salgado has faithfully paid the rent on her condo, which she loves, and she plans to keep paying. But she's concerned about what might seem like a silly question: Where the heck should she send the checks now? A new and sloppily worded Florida law puts that in doubt.

• Salgado, a Herald-Tribune employee, told me the three-bedroom condo unit she shares with a roommate at Las Palmas of Sarasota is perfect, and their $1,100 monthly rent is a good deal. Her landlord, Ray Simmers, wants her to keep sending rent checks to him, as she has since she moved there in December.

• But like other renters in Florida, Salgado just received a letter by certified mail, thanks to a state law effective July 1. Hers came from Tampa lawyer Bruce M. Rodgers, who represents the Las Palmas of Sarasota condo association. The letter says her landlord, Simmers, owes the association more than $15,000 in unpaid association fees and demands that Salgado write future rent checks to Rodgers' law firm to pay down the debt. The letter says the new law authorizes this demand. It lists the statute number, and warns that the association can evict Salgado if she doesn't comply.

***

• She sent Simmers an e-mail saying the law seems to require she do as the association demands. Simmers sent a one-word reply. "Nuts," it said. Later, he added that "not paying the rent to me will affect your status and credit."

For more, see Lyons: Not their fight, but they're thrown in it.

Cracked Slab Drives Residents Out Of 16-Story Sarasota Condo; Could Be As Long As Six Months Before Re-Occupancy Allowed

In Sarasota, Florida, the St. Petersburg Times reports:

• To the list of things Florida homeowners have had to worry about — hurricanes, sinkholes, termites, foreclosure, Chinese drywall — add this: fears that your 16-story condominium might collapse. That has driven residents of the waterfront Dolphin Tower into indefinite exile, two weeks after a crack big enough to slide a hand through suddenly appeared in the floor of Apartment 4C. And city officials say no one will be allowed back permanently unless engineers can fix what one called a "scary'' problem.

***

• The danger stems from flaws in the original design and construction nearly 40 years ago, engineer David Karins told the crowd. Tests have found "voids'' in the concrete that is blamed in part for the continued shifting and cracking of a fourth-floor slab that supports the 12 floors above it. "It's a tough problem,'' said Karins, whose firm was hired by the condo board to assess and repair the damage. "This is not something that happens every day." Almost immediately after the first crack appeared in late June, work began to reinforce the support slab. The major repairs, which involve jacking up the top 12 floors, will be "an elaborate and difficult thing to do,'' he warned.

• Even if no more serious problems are found, it could be as much as six months before residents can move back in. And there are no guarantees insurance will cover the cost of the repairs, which Karins estimated will be "at the high end of six figures.''

For the story, see Dangerous crack forces residents out of Sarasota high-rise condo.

Beware Of Sleazy Sales Practices In Marketing Bank-Owned Foreclosures Tainted With Chinese Drywall

In Williamsburg, Virginia, The Virginian-Pilot reports:

• At $207,000, the five-bedroom, 2,700-square-foot home in Williamsburg sounds like a phenomenal deal, even in this housing market. “Yes the price is correct!” reads the real estate listing in a local online database of homes for sale. “What an opportunity. Property to convey 'as is, where is.’”

• But not even the fine print lets potential homebuyers know why this property – which sold for $383,000 in 2006 – is such a bargain. It’s one of several houses containing tainted Chinese-made drywall that have been popping up on the market recently. At least a half-dozen such homes were listed for sale on Friday. Although some disclose to the public the presence of the drywall, other listings disclose that information only to other real estate agents.

***

• Bill and Deborah Morgan lost the home at 8495 Ashington Way in Williamsburg to foreclosure after leaving the house amid health concerns. The property is now owned by mortgage giant Freddie Mac, which hired Prudential Towne Realty to sell it at a deep discount. The description seen by the public on the house only hints at the work that is needed on the property.

***

• Two other listed homes also offered potential buyers no hints that there was anything wrong with the properties. [...] Tanya Cosmini , the home’s agent with Abbitt Realty Co., said part of the problem is that there are no rules on how to disclose the tainted drywall.(1)

For more, see Buyer beware: This home contains Chinese-made drywall.

(1) If the (clueless???) real estate agent really said this, it should be pointed out to her that they same rules that apply to disclosing any fact that can can materially affect the value of property being offered for sale apply to the disclosure of tainted drywall. The fact that the home's deeply-discounted asking price may already reflect that there is something wrong with the home doesn't relieve the agent's disclosure obligation. For her sake, I hope she was misquoted.

Purported Atlanta-Area Non-Profit Loan Modification Outfit Faces Media Heat After Customers Complain Of Being Fleeced Out Of Upfront Fees

In Tucker, Georgia, WGCL-TV reports:

• CBS Atlanta asked a DeKalb County mortgage counseling agency Tough Questions about its business practices, after several clients accused it of taking their money but failing to keep their homes out of foreclosure. “It hurts my heart that they played me like they did,” said Brenda Pitts. “NAARI Mortgage Counseling Agency promised me my payment would drop about $400 or $500. I paid them $1,200 to keep my home out of foreclosure, but they only called my mortgage company two times in five months, and by the second time, my home was in foreclosure.”

• On a website bearing the nonprofits name, NAARI claims its counselors are HUD certified. But according to the Department of Housing and Urban Development, that is not true. The website also indicates it has been approved by the United Way to help people. But the United Way also says that is not true.

For more, see Customers Complain Agency Did Nothing To Prevent Foreclosures (Some Homeowners Say NAARI Allowed Homes To Go Into Foreclosure).

For follow-up story, see State Investigators Look Into Housing Counseling Agency (Director of National African-American Relationship Institute Defends Agency).

Insurer's TV Commercial Creating Fear Of Possible Loss Of Home To Scare Texans Into Buying Unnecessary Coverage Ordered Yanked By State AG

From the Office of the Texas Attorney General:

• Texas Attorney General Greg Abbott [] sent a demand letter instructing Travelers Insurance (The Travelers Companies Inc.) to cease and desist the airing of a deceptive television advertisement. According to the attorney general’s letter, the ad improperly indicates that Texas homeowners should purchase additional motor vehicle insurance or risk losing their homes if they have inadequate insurance after a vehicle accident. The attorney general demands that the advertisement be removed from all Texas television media markets as well as any print, multimedia, radio or computer-generated ads that appear in the state.

• “Texans are protected by robust homestead laws that insulate homeowners from the losses depicted in Travelers’ advertisements,” Attorney General Abbott said. “Because the state already protects homeowners, it is improper for Travelers to scare Texans into buying insurance they may not need. The letter we sent today instructs Travelers to pull down this misleading advertisement immediately or face legal action by the state.”(1)

For the entire Texas AG press release, see Attorney General Abbott Sends 'Cease and Desist' Letter to Travelers Insurance for Deceptive Ad (TV ad wrongly alarms Texans they can lose their homes without adequate auto coverage).

Go here for:

• Attorney General's cease and desist letter - The Travelers Companies Inc.,
• Travelers Companies' response to the Attorney General's demand letter.

(1) Unlike homestead laws in most states, the homestead protections in Texas, much like Florida and a few other states, generally "bulletproofs" the family home against forced sale resulting from almost all unpaid court judgments & liens (mortgage, homeowner/condominium association, home improvement, and federal tax liens are among the few exceptions).

Career Scammer Gets 30 Months In Mortgage Fraud Scam; Ripped Off Home Sellers Out Of Million$ In Equity Using Bogus "Owner-Finance" Deals

In Fort Myers, Florida, the Naples Daily News reports:

• A Marco Island businessman involved in $30 million worth of shady land deals since the 1980s was sentenced Monday to 2½ years in a federal prison for a 2006 mortgage fraud case. U.S. District Judge John Steele also ordered Douglas Lee Carter Sr., 64, to serve three years of supervised release for filing a false mortgage application, prohibited him from financial dealings worth more than $500 without permission, ordered him to undergo mental health treatment and debt management counseling.

***

• His record of land deals in Collier Circuit Court is six pages long, filled with more than $30 million in mortgage foreclosures, judgments, dissatisfied sellers and buyers dating to 1984. Investigators here sought the FBI’s help. Of 84 cases against him, there also are judgments for non-payment of contracts, breach of contract, and specific performance, for reneging on payments.

• In the land deals, Carter would sign promissory notes with sellers, finance homes for more than they were worth, pocket the difference, and then stop payment. Sellers lost millions. Robbie and Jennie Gaude of Minnesota, who sold Carter their Marco Island home, lost $300,000 in 2005. “He never intended to pay anybody,” Robbie Gaude told the Daily News last year, comparing him to Bernie Madoff.

***

• The plea agreement says Carter agreed to pay Alan and Jane Lantieri $600,000 in 2006 for their home on 102nd Avenue North in Naples Park. But he lied on a Housing and Urban Development (HUD) statement by not disclosing a mortgage against the home, received a $540,000 loan, never paid the mortgage, and the house went into foreclosure.

For the story, see Marco Island businessman sentenced to 2 1/2 years in prison for mortgage fraud (Douglas Lee Carter Sr. has been linked to $30 million in mortgage foreclosures since the 1980s).

For an earlier post on Carter's antics, see SW Florida Man Accused Of Pocketing Cash At Real Estate Closings In Exchange For Seller-Held Promissory Notes, Then Stiffing Sellers With Hot Checks.

Recent NJ Lower Court Ruling Stalling $1.38M Mortgage Foreclosure Could Affect Entire State If Challenged & Upheld On Appeal

In Atlantic City, New Jersey, The Press of Atlantic City reports:

• A ruling in Atlantic County by a state Superior Court judge may make foreclosure filings there and in Cape May County more difficult for lenders, requiring them to show they actually possess the mortgage note at the time they file. [...] Judge William C. Todd III ruled on June 29 that Bank of New York had “failed to establish that it was entitled to enforce the note as of the time the complaint was filed” and prevented it from proceeding with foreclosure.(1) The $1.38 million mortgage was for a beach-block house in Brigantine, and the foreclosure proceeding was challenged by the borrowers, investors Roman Krywopusk and Michael Raftogianis, both of Perkionmenville, Pa.

***

• Eric Garrabrant, 38, of Linwood and the attorney with the Flaster Greenberg office there who represented Krywopusk, said that Bank of New York hadn’t indicated yet whether it would refile or appeal Todd’s ruling. He said the significance of the case was that in the Atlantic and Cape May counties jurisdiction of Todd, banks could no longer simply show that a mortgage had been assigned to them when foreclosing on a property.

• “From now on, if you demand that the bank demonstrate how it owns the note and mortgage, the transaction by which they acquired it, and had ownership on the date the foreclosure complaint was filed, in Cape May and Atlantic counties they’re going to have to do that,” Garrabrant said. If the case is appealed and upheld on appeal, the requirement could be applied throughout the state, he said.

For the story, see Ruling in Brigantine foreclosure case means lenders have to prove they hold mortgage in Atlantic, Cape counties.

(1) According to the story, Todd ruled that Bank of New York can “institute a new action to foreclose at any time, provided that any new complaint must be accompanied by an appropriate certification ... confirming that plaintiff is in possession of the original note as of the date any new action is filed.”

Financial Advisor Charged In $500K+ Client Ripoff; One Victim Swindled Out Of Equity Loan Proceeds, Loses Property To Foreclosure

In South Lake Tahoe, California, cbs13 reports:

• A financial advisor is facing federal charges and decades in prison for allegedly stealing her clients' life savings to fund a lavish lifestyle. South Lake Tahoe resident Lori Zoval, 45, has been accused by the Department of Justice of stealing at least $500,000 and concealing the crime by sending her clients false documents and paperwork.

***

• Holly Eimer said her nonprofit organization, Tahoe Helping Hands, was leveled by Zoval's actions. Eimer, who suffers from multiple sclerosis, said she dreamed of opening an ADA-compliant resort for disabled people and their pets, and took out a $200,000 equity loan to pay for fundraising on Zoval's advice. Eimer said the money quickly disappeared, along with Zoval. Some of Eimer's property was eventually lost to foreclosure.

For the story, see Financial Advisor Accused Of Stealing $500,000+.

Illinois Man Gets 115 Months For Pocketing $2M+ From 17 Victims In Home Equity Ripoffs

In Chicago, Illinois, the Daily Herald reports:

• A Lake Barrington man was sentenced to almost 10 years in prison in a fraud case that cost his 17 victims more than $2 million. Charles Landwer Jr., 47, formerly of Bartlett, pleaded guilty in January to mail fraud after originally being charged two years ago. Assistant U.S. Attorney Michelle Nasser said Landwer preyed on the elderly and those fearing foreclosure on their homes through his Accurate Financial Group firm, with operations in Long Grove and Bloomingdale.

• In one scheme, Landwer led a pair of Yorkville homeowners to believe that he was helping them avoid foreclosure, telling them the home needed to be put in trust while he worked out financing with the mortgage holder. He controlled the trust and transferred the home to his name, then refinanced it and tried to take out $230,000 in equity before bank investigators became suspicious and Landwer was arrested, authorities said.

• Landwer was sentenced to nine years and seven months in prison on the fraud charge and also ordered to pay $2.3 million in restitution to his victims, but according to Nasser the money was spent and the government has been unable to recover it. Landwer previously served seven years in prison in the 1990s on a conviction for soliciting a murder-for-hire after plotting to kill an employee who had agreed to be a witness in a case about an auto chop shop Landwer was running.

Source: Northwest suburban man gets nearly 10 years for fraud.

For earlier stories, see:

• Lake Barrington man led massive swindle, feds say,
• Illinois Man Charged With Theft Of Proceeds Of Elderly Woman's Home.

Granite State Couple Jams Attempted Foreclosure Sale Of Home; Obtain Last Minute Injunction After Raising Questions As To Ownership Of Promissory Note

In Sandwich, New Hampshire, WMUR-TV Channel 9 reports:

• A couple in Sandwich who nearly lost their home to foreclosure is gaining traction in their fight against what they said is fraudulent action by the companies trying to take their home. In March, a last-minute court order forced a foreclosure auctioneer to drive away on auction day without selling the home of Porter and Angie Moore.

***

• The Moores said one problem with the foreclosure proceedings is that it's unclear who owns their bank note. The confusion has made it difficult to appeal, and they had almost given up before they met Mike Dillon [of GetDShirtz.com]. Dillon, of Manchester, said he's no expert in foreclosures, but he's an angry homeowner in the middle of a 10-year battle to keep a bank from foreclosing on his home. He heard the Moores' story and gave them some advice on how to fight back. "I was able to share some information with Porter as far as what was going on with his case, just based on his paperwork, on his assignment of mortgage filed at the Registry of Deeds," Dillon said.

• The Moores said they started by following the instructions on the foreclosure letter that states, "If you believe this debt is unwarranted, then you must send a letter requesting verification of debt." "We got a reply a month or so later that we had been transferred to another mortgage company," Porter Moore said.

• Their next stop was the Registry of Deeds, where they received piles of documents -- enough to convince a judge that the agency trying to foreclose may not have the authority to do so. "Go to the Registry of Deeds and start digging," Porter Moore said. "It's an enormous amount of work. It's a monumental task. Go to the Registry of Deeds and dig."

• The Moores now have a permanent injunction on their mortgage, meaning no foreclosure action can happen until they get their day in court. They said it appears the judge is acknowledging that because the mortgage paperwork is separated from the loan itself, it's not clear who has the right to collect payment.

For the story, see Couple Fighting Foreclosure Gets Day In Court (Manchester Homeowner Helps Couple Navigate Paperwork).

For an earlier story, see Sandwich Family Struggles To Stay In Home (Injunction Delays Auction After Family Loses Control Of Loan).

Recently Refinancing Homeowner/Couple Gets Hit With Notices From Two Different Lenders, Both Claiming To Hold Their Promissory Note

In Wichita, Kansas, KWCH-TV Channel 12 reports:

• Debbie Weber says it’s consumed her life. “I was spending four and five days a week… hours working on this. My husband would come home and see me on the floor with papers and say Debbie you got to stop this,” says Weber.

• The Webers, tight on money, decided to refinance their home. Things went smoothly until two statements, from two different companies, for two different amounts arrived in the mail. She didn't know who to pay and risked losing her home. “I wasn't going to take this lying down. This is our home they're messing with.” Because she fought back, Debbie discovered something that surprised her even more. Neither company can even prove they own her loan.

For more, see Who owns my loan? (Butler County couple fight to keep their home after refinancing. Two lenders both claim to have their loan).

Homeowner Facing Foreclosure Falls For Sale Leaseback Ripoff; Civil Suit Against Suspected Scammer In Works

In Philadelphia, Pennsylvania, The Philadelphia Inquirer reports:

• Edward Harper, 73, retired from the Philadelphia Housing Authority, missed a couple of $500-a-month mortgage payments in 2007 because his daughter, who lives with him, needed the money. Facing foreclosure, he searched on the Internet for help, filled out applications, and was contacted by Fresh Start Financial Services in Mount Laurel.

• "The lady from Fresh Start told me she would give me a 'buy-back mortgage' " and said that he would not have to pay his mortgage for a year, he recounted. After that, he would be given a mortgage in line with his income, a combination of Social Security and a pension.

• He signed the papers. Seven months later, he was told that his payments would be $1,200, and he was still receiving what he said were "scary" letters from his original lender. Harper contacted Community Legal Services.(1) His lawyer, Dan Urevick-Ackelsberg, discovered that the house had been purchased by a "straw buyer" who was related to a broker at Fresh Start.

• Urevick-Ackelsberg said that among the sheaf of papers that Harper had signed was a quitclaim deed that handed legal ownership of the house to Fresh Start Financial. Harper and others similarly cheated "were not represented at the closing," the lawyer said. The straw buyer's lender was Sovereign Bank, he said. The bank has foreclosed on the straw buyer, and has a sheriff's sale pending.

• Urevick-Ackelsberg will file a civil suit against Fresh Start on Harper's behalf. He has asked Sovereign to delay the sale until it sees the lawsuit. The bank hadn't notified him of its decision as of Monday afternoon. Harper remains in his home.

***

• Many scammed homeowners suffer in silence, ashamed to have fallen into the trap. "Usually, after the scam, they tend not to come to us," said Patricia Hasson, president of Consumer Credit Counseling Service of Delaware Valley in Philadelphia.

For the story, see Philadelphia to launch scam-alert program on mortgage modifications.

(1) According to their website, Community Legal Services (CLS) of Philadelphia provides low-income Philadelphia residents with advice and representation in civil legal matters; advocating for their legal rights; conducting community education about the legal issues that affect them; and never charges attorney’s fees to its clients, although in some cases clients are asked to pay for court filing fees or other out of pocket expenses.

More Publicity For Southeatern Pennsylvania Foreclosure Rescue Operator

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

• Gennaro Rauso once described himself to the Daily Times as a “self-taught paralegal.” Much of that education occurred at Graterford Prison while serving a nine-year drug sentence. Now, the 46-year-old former owner of the real estate management company D&B Property Investors finds himself in more hot water, this time with the feds. The U.S. Attorney Zane David Memeger on June 24 filed an information charging Rauso, a former resident of Delaware County, with several mortgage fraud-related offenses.(1)

• The information alleges Rauso took advantage of desperate homeowners with the promise of staying in, or saving, their homes, when in fact he was using them to defraud the mortgage holders. Similar complaints about Rauso have been relayed to authorities in Delaware County for several years, though charges were never filed.

• “He walks right up to the (legal) line and doesn’t cross it,” is how county Detective Thomas Worrilow described Rauso’s dealing in a 2008 interview.(2) Federal prosecutors and officials from the FBI, IRS and departments of Treasury and Housing and Urban Development believe he has taken that extra step.

• According to the information, between January 2005 and December 2008, Rauso carried out a scheme to defraud mortgage companies out of hundreds of thousands of dollars in mortgage payments. He allegedly sought out homeowners who were facing immediate foreclosure on their homes and offered to help them avoid foreclosure. In a flier mailed to these homeowners, Rauso claimed he could help them fight the mortgage companies while simultaneously helping them rebuild their credit so they could keep their home.

For more, see Feds target real estate company owner.

For an earlier post on Rauso, see Philly Feds: F'clsure Rescue Operator In Sale Leaseback, Rent Skimming Scam Stalled Lenders w/ Bogus Bankrptcy Filings, Stiffed IRS On Illegal Profits.

(1) The full set of charges Rauso faces are:

• 18 U.S.C. §§ 1341 (mail fraud - 1 count),
• 18 U.S.C. § 157 (bankruptcy fraud - 1 count),
• 18 U.S.C. § 1029(a)(5) (access device fraud - five counts),
• 12 U.S.C. § 1709-2 (equity skimming, aka rent skimming, - 4 counts),
• 18 U.S.C. § 1344 (bank fraud - 1 count),
• 26 U.S.C. § 7203 (failure to file federal income tax returns - 4 counts),
• 26 U.S.C. § 7206(1) (filing a materially false federal income tax return - 1 count),
• 18 U.S.C. § 2 (aiding and abetting),
• Notice of forfeiture.

(2) In light of the recent federal charges, Detective Worrilow may want to reconsider his position on whether Rauso crosses the legal line when allegedly ripping off homeowners.

Bellyaching Bankers Rail Against Bill Attempting To Level Playing Field For New York Homeowners In Foreclosure Actions

The New York Law Journal reports:

• Legislation that would give property owners, as well as lenders, attorney's fees if they prevail in a residential foreclosure action is "unnecessary and would create uncertainty in the foreclosure process" in New York, the Bankers Association is contending.(1)

• The measure, A1239/S2614, by Assemblyman Rory I. Lancman, D-Queens, has passed both houses of the Legislature but has not yet been forwarded to Governor David A. Paterson. It was dubbed the Access to Justice in Lending Act by its sponsors.

• The bill stipulates that whenever a covenant in a mortgage agreement on residential property allows lenders to recover attorney's fees in a foreclosure proceeding, the mortgage must also contain a reciprocal covenant allowing the borrower the same right if a foreclosure is unsuccessful. Advocates of the measure say that covenants that favor lenders are routinely contained in residential mortgages.

***

• Mr. Lancman said his bill was patterned after a provision in §234 of the Real Property Law, which, since the mid-1960s has allowed tenants to recover attorney's fees if they successfully fight evictions, provided leases give the same right to landlords who prevail in eviction proceedings. Mr. Lancman said the change would encourage more attorneys to represent defendants in foreclosure actions "because they [attorneys] can be confident, if successful, that they will be paid for their work."

• With the economy still struggling and foreclosures common in many courts, Mr. Lancman said he hopes that attorneys specializing in foreclosure work stay in the field. "We hope to be creating a private bar, just like there is a private bar of attorneys doing discrimination cases and other kinds of specialized work," Mr. Lancman said.

***

• Legal Services NYC and the Neighborhood Economic Development Advocacy Project are urging enactment of the bill, which was sponsored in the Senate by Jeffrey Klein, D-Bronx. Legal Services NYC maintained that the bill would expand legal representation for middle- and low-income New Yorkers facing foreclosure while removing the incentive for some mortgage issuers to go forward with foreclosure proceedings.

For more, see Measure Opposed by Bankers' Group Would Allow Owners to Recover Attorney's Fees in Foreclosures.

(1) The rhetorical BS by the bankers is not surprising. Allowing a winning homeowner in a foreclosure action an attorney fee award in these situations is nothing unique. For example, in Florida, state law mandates an award of prevailing party attorney's fees under the reciprocity provisions of section 57.105(7), Florida Statutes. See Landry v. Countrywide Home Loans, Inc., 731 So. 2d 137 (Fla. 1st DCA 1999); Attorney Fee Awards For Successful Foreclosure Defense In Florida.

This law certainly has not made lenders reluctant to make home loans in Florida, as evidenced by the flood of foreclosures currently jamming the state's court system.

Chicago Federal Jury Slams Ex-Attorney With Guilty Verdict In Sale Leaseback, Equity Stripping Foreclosure Rescue Ripoff

In Chicago, Illinois, the Chicago Tribune reports:

• Norton Helton, a former Chicago attorney who once offered personal-finance advice on the radio, was found guilty Friday of bilking distressed homeowners through a fraudulent foreclosure rescue program.(1) [...] Helton was the subject of a 2006 Tribune investigation into mortgage fraud. In its investigation the Tribune found that in 2005 Helton helped persuade a 91-year-old woman to sign over her sole asset, a brick home on Chicago's West Side co-owned with her nephew.

• Nine months after the story was published, federal prosecutors charged Helton with bankruptcy fraud for allegedly concealing home sales from U.S. Bankruptcy Court.(2) The nephew, Kelvin Martin, was one of at least nine alleged victims.

***

• Evidence showed that Helton worked with [Charles] White, who owned a real estate company that offered troubled homeowners a "mortgage bailout" program. Under the scheme, homeowners were persuaded to sell their property to "investors" with the expectation they would be allowed to remain in their homes while they paid down debt and repaired their credit through bankruptcy.

• After a year, clients would have the right to repurchase their homes, if financially able to do so.At the time of sale, White stripped the homeowners of their equity. He also obtained more than $1.6 million in mortgage financing for the investors by preparing fraudulent loan applications with fake employment and income information. He did so with the help of [Felicia] Ford, a closing agent who worked for a title company that shared offices with White's company.

***

• "The people who went through bankruptcy did so as part of a bailout program," said Assistant U.S. Attorney Joel Hammerman. "The individuals were told they could improve their credit by going through Chapter 7.'' Prosecutors charged that Helton hid the home transfers from the bankruptcy petition so he could keep $400,000 in his clients' assets under wraps.(3)

For the story, see Lawyer convicted of mortgage-rescue fraud (Attorney, subject of a 2006 Tribune investigation, once offered financial advice on radio).

(1) According to the story, the jury convicted Helton after a monthlong trial of all the charges against him — nine counts of bankruptcy fraud and three counts of wire fraud related to mortgage loans. Each count of wire fraud carries a maximum penalty of 20 years in prison, and he faces a maximum five years in prison for each bankruptcy charge. Helton is free on bond pending his sentencing, scheduled for the end of September. Two other defendants, Charles White and Felicia Ford, were later added to Helton's case, and were found guilty of wire fraud, the story states.

(2) For the U.S. Attorney's 2006 press release announcing the indictment, see Five Chicago Area Bankruptcy Attorneys Among A Dozen Defendants Charged In Separate Federal Bankruptcy Fraud Cases. See also, Crain's Chicago Business: Chicago lawyers charged in bankruptcy fraud probe.

(3) To the extent Helton's victims cannot recover their financial losses from him, they should consider filing an application with The Client Protection Program of the Attorney Registration and Disciplinary Commission (ARDC), which, according to their website, was established by the Supreme Court of Illinois to provide reimbursement to clients who have lost money or property because of dishonest conduct by lawyers admitted to practice law in the State of Illinois. The Program reimburses clients who cannot get reimbursement from the lawyers who caused their losses, or from other sources such as insurance.

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

• Directory Of Lawyers' Funds For Client Protection (courtesy of the American Bar Association);
• Check the USA Client Protection Funds Map;
• Check the Canada Client Protection Funds Map.

"The Banks Are Scared To Death Of Judge Spinner", Says One Lawyer As L.I. Judge Is Profiled In Media Report For Slamming Lenders In F'closure Actions

In Riverhead, New York, the New York Law Journal reports:

• At first blush, Suffolk County Acting Supreme Court Justice Jeffrey Arlen Spinner (See Profile) seems an unlikely figure to strike fear in attorneys. The 50-year-old judge is physically unimposing, speaks in soft, measured tones and is unfailingly polite. He habitually refers to the attorneys who appear before him as "nice," "reasonable" and even "wonderful" people.

• But the 12-year veteran of the Suffolk bench has also issued three foreclosure decisions over the past eight months that have made him the darling of the tabloids and the Internet for, as the New York Post put it, sticking it to "ruthless bankers."

• First, in November, the judge canceled a $292,500 mortgage because of what he called IndyMac Bank's "unconscionable, vexatious and opprobrious" conduct during mandatory loan-modification negotiations (IndyMac Bank v. Yano-Horoski, 2005-17926, NYLJ, Nov. 23, 2009).

• In March, he ordered Wells Fargo to pay a homeowner $155,000 for entering his house without his permission and changing the locks (Wells Fargo v. Tyson, 2007-28042, NYLJ, March 15).

• And then in April, the judge ordered Emigrant Mortgage to pay a couple $100,000 as damages for what he said was an "unconscionable, unreasonable [and] overreaching" mortgage agreement. (Emigrant Mortgage Co. v. Corcione, 2009-28917, NYLJ, April 21).(1)

• Those three decisions have gotten the attention of not only the press and hopeful homeowners, but also of banks and their attorneys. One sign that the banks now tread carefully in Justice Spinner's Riverhead courtroom is the number of veteran bank attorneys who appear at the mandatory settlement conferences. [...] Now that Justice Spinner has gained the lenders' attention, [bank attorney Jonathan] Ullman said, banks no longer entrust cases before him to junior associates: The possibility of losing, and losing big, has become too real. "The banks are scared to death of Judge Spinner," Mr. Ullman said. "If you go to the rest of the parts, you won't see anything like this."

***

• As that tide has risen, several Supreme Court judges have developed reputations for discarding the rubber stamp to which many banks had become accustomed. Brooklyn's Justice Arthur Schack (See Profile) is known for rejecting foreclosure petitions because of shoddy or questionable paperwork by the mortgagees (NYLJ, Dec. 24, 2009).

• Justice Timothy J. Walker of Buffalo (See Profile) recently dismissed a foreclosure action after Wells Fargo insisted on including an adjustable-rate clause in its loan modification, despite the wide-spread criticism of adjustable rates and the judge's previous order requiring the bank to offer a loan without such a clause. (Wells Fargo v. Hughes, 2010-20081).

• And in Suffolk County, which is home to one-fourteenth of the state's population but one-sixth of its new foreclosures, Justice Spinner has gained a small measure of celebrity within the ever-expanding foreclosure community. The judge's decisions have been covered everywhere from Reuters ("Hero of the day: Jeffrey Spinner") to the blog 4closureFraud ("Another NY Style beat down") to London's Daily Mail ("Couple's £370,000 mortgage wiped out by judge angry at bank's 'repulsive' behaviour").

For more, see Quiet Judge Facing a Foreclosure Crush Gets Lenders' Attention.

(1) See also, Newsday: Lender ordered to pay E. Northport couple $100G (A state judge accused a mortgage company of premeditated attempts to destroy an East Northport couple's chances of keeping their home).

Ex-Lawyer Faces 5 To 15 Yrs For Swiping $339K From R/E Closing Meant For Mtg Payoff; Lacks $50K Upfront Needed For Judge's Jail Term "Buy Down" Offer

In Carmel, New York, The Journal News reports:

• A former Southeast lawyer who served as a Patterson library trustee and on the Putnam Arts Council is being held in the Putnam County jail awaiting sentencing on the theft of $339,000 from a real estate closing. Jane Y. Posner, 60, the wife of former Patterson councilman and attorney Martin Posner, has admitted taking the money but the reason she might face up to 15 years in prison is she refuses to say what she did with it. Posner pleaded guilty Jan. 12 to second-degree grand larceny.

• "We offered her the opportunity to pay restitution in exchange for a reduced sentence. But she failed to accept the offer and never indicated where the money went, so we are asking for five to 15 years," county District Attorney Adam Levy said. He said Posner, who lives in a spacious home on Alexander Drive and recently celebrated her 40th wedding anniversary while behind bars, only came up with $4,000 toward restitution.

***

• The New Jersey-based Corcoran Law Group had Posner stand in for them at the closing, where she was given a $339,719 check that was supposed to go to the lender. Instead, she deposited it into her own account and sent the Corcoran Group a $339,719 check from her escrow account then stopped payment on it. The law firm later sued her for legal malpractice in a case that's pending.

• Shortly after her arrest in October 2008, Posner gave up her law license, which she had held since June 1989. The Appellate Division of the 2nd Judicial Department noted in an April 2009 ruling that "Ms. Posner acknowledges her inability to defend herself on the merits against (criminal) charges."(1)

• Martin Posner said he believes his wife deserves leniency. Given five years probation, he and his wife could repay the money, he argued, but [County Court Judge James] Reitz wanted $50,000 up front, which they don't have, he said.

For the story, see Putnam lawyer Jane Posner faces 15 years in prison for stealing $339G.

(1) In its ruling (see Matter of Posner, 63 AD3d 61, 2009 NY Slip Op 02792 (App. Div. 2nd Dept. 2009), the New York intermediate appellate court also noted:

• Ms. Posner is aware that this Court, in any order permitting her to resign, could require her to make monetary restitution to any person whose money or property was misappropriated or misapplied or to reimburse the Lawyers' Fund for Client Protection.

Apparently, The Lawyers’ Fund For Client Protection Of the State of New York, whose mission, according to their website, is "to protect legal consumers from dishonest conduct in the practice of law, to preserve the integrity of the bar, to safeguard the good name of lawyers for their honesty in handling client money, to promote public confidence in the administration of justice in the Empire State," may have been left on the hook for making some reimbursement for the theft of the escrow money in this case. This fund, in effect, operates as the state's "attorney ripoff reimbursement fund."

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

• Directory Of Lawyers' Funds For Client Protection (courtesy of the American Bar Association);
• Check the USA Client Protection Funds Map;
• Check the Canada Client Protection Funds Map.

Title Insurance Underwriter Files Suit In Attempt To Wiggle Out Of Liability For Actions Of Alleged Sticky-Fingered Closing Agent In R/E Escrow Ripoff

In Dothan, Alabama, the Dothan Eagle reports:

• An insurance company is asking a federal judge to rule it should not be held responsible for covering the losses incurred by several families through alleged misconduct from an area title company. Tudor Insurance Company, through documents filed in U.S. District Court, claims its insurance policy with Dothan’s Title Pro Closings covers only errors, omissions and negligent acts, not criminal or fraudulent acts.

• Former Title Pro Closings manager Tammy Lynn Peters has been charged with nine counts of first degree theft of property and is listed as a defendant in at least six civil lawsuits. Peters was employed with Title Pro and her duties included closing of certain loans and disbursement of loan proceeds at closings.

• An audit of Title Pro revealed that funds were missing, misappropriated or misapplied and, as a consequence, several customers of Title Pro learned that their prior mortgages had not been satisfied. Combined losses of several hundred thousand dollars have been alleged. Tudor includes its policy with Title Pro Closings in court documents, which, in part, states “Coverage under the policy does not apply to any loss in connection with or arising out of or in any way involving ... the committing in fact of any criminal or fraudulent act.” “Pursuant to the terms and provisions of Tudor’s policy of insurance, there is no coverage for Title Pro Closings, LLC and (Tammy) Peters for the claims alleged in the underlying lawsuits ...,” Tudor states in court documents.

• Attorneys for the families, however, claim the cases against Peters are still young and it is too early to determine Tudor’s claim. “The Plaintiffs in the underlying tort actions used Title Pro to handle their real estate closings. Title Pro was responsible for taking the proceeds from the sale of the Plaintiffs’ property and applying those proceeds to the purchase of their homes. Those Plaintiffs learned that such proceeds were not so applied, some when they received foreclosure notices. The Plaintiffs do not pretend to know, at this early stage of the discovery process, exactly how this omission came about. They only know that Title Pro had an absolute duty to see to it that the proceeds at the closings were applied to their purchases, and this did not occur,” Matt Glover, attorney for the families, stated in a response to Tudor’s claim.

• “The Plaintiffs have asserted claims for breach of contract, negligence, and fraud in connection with this omission. Tudor Insurance, in its declaratory action, invites this Court to make a factual determination that Title Pro’s failure to properly apply the proceeds to the Plaintiffs’ purchases resulted from intentional, criminal conduct on the part of its insured. This Court should decline that invitation,” Glover added. No ruling has been made at this time.

Source: Insurer asked to be released from claims arising from Title Pro cases.

For the title insurance underwriter's lawsuit seeking a declaratory judgment, see Tudor Insurance Company v. Title Pro Closings LLC, et al.

For the screwed over homeowners' response to the lawsuit, see Defendant's Brief In Support Of Motion To Dismiss.

For an earlier report on this story, see More charges returned in Title Pro case.

Title Closing Agent Gets 4 Years For Role In $6M+ Escrow Swindle; Ripped-Off Loot Intended To Pay Off Existing Mortgages In Real Estate Deals

From the Office of the U.S. Attorney (NYC/Manhattan):

• PREET BHARARA, the United States Attorney for the Southern District of New York, [] announced that ERIC KOPPELMAN, a former title closer, was sentenced to four years in prison for his role in a scheme to steal over $6 million in proceeds of home mortgage loans. The stolen funds were intended to be used to pay off existing mortgages on the properties. The sentence was imposed [] by United States District Judge PAUL G. GARDEPHE in Manhattan federal court.

• On June 1, 2010, IRSHAD RAMZAN, a co-conspirator and former mortgage broker who supervised the operations of Queens-based Platinum Funding, was sentenced to 84 months in prison for his role in the scheme to steal the proceeds of home mortgage loans, as well as in a separate scheme to obtain home mortgage loans from banks under false pretenses by arranging straw purchases of the homes and generating tens of thousands of dollars in unwarranted fees for RAMZAN and Platinum Funding.

***

• In addition to the prison term, KOPPELMAN, 49, of Hauppauge, New York, was sentenced to five years of supervised release and was ordered to pay over $6 million in restitution and to forfeit various property.

***

• Mr. BHARARA praised the investigative work of the United States Postal Inspection Service and thanked them for their work in this case. He also thanked Ticor Title Insurance Company of Florida for its assistance in the investigation.(1) These cases are being prosecuted by the Office's Complex Frauds Unit.

For the entire press release, see Title Closer Sentenced In Manhattan Federal Court To Four Years In Prison For Stealing Over $6 Million In Mortgage Loan Proceeds.

(1) My guess is that Ticor Title Insurance Company of Florida was the title underwriter left holding the bag as a result of the illegal conduct of the closing agent.

Feds Hit Wall Street Firms With Subpoenas Seeking Documents Related To Crappy Mortgage Securities Bought Buy Fannie, Freddie w/ View To Force Buy-Back

The New York Times reports:

• The [Federal Housing Finance Agency] announced last Monday that it had issued 64 subpoenas to a throng of unidentified financial services institutions, seeking documents related to mortgage securities that Fannie and Freddie bought from Wall Street during the boom years.

• The subpoenas are designed to tell the agency what many of us want to know: How did Wall Street package and sell private-label mortgage securities to investors, even though the nature and quality of some of the loans crammed inside those tidy little packages were, at best, suspect?

• Once that question has been answered, Fannie and Freddie can force the institutions that sold the securities to repurchase the improper loans, allowing taxpayers to recover some of the losses they’ve swallowed on Fannie’s and Freddie’s federal bailout.

***

• During 2006-7, these entities bought $294 billion of so-called private-label securities. Not all of these purchases are under scrutiny, the agency said. It is clearly turning up the heat on the major players in mortgage servicing and securitization. Among the bigger trustees in the business are Deutsche Bank and the Bank of New York, while loan servicers include Bank of America and many more. None of the banks would confirm if they had received subpoenas.

For more, see Holding Bankers’ Feet to the Fire.

Montana Man Found Guilty In Home Title Hijacking Racket; Scam Targeted Vacant, Foreclosed Home; Probe Into Other Swiped Houses Continues

In Polson, Montana, the Missoulian reports:

• Deliberating less than an hour, a Lake County jury [...] found Brent Arthur Wilson guilty of stealing a $380,000 home outside Polson. In all, Wilson was found guilty of three felonies and one misdemeanor. His sentencing was set for Aug. 19.

• Wilson removed the "for sale" sign on the home near Jette Lake, changed the locks, filed a slew of unusual paperwork with the county clerk and recorder's office, and tried to use the home as collateral for a $125,000 loan from a Missoula financial institution. He was caught by Ed McCurdy, the Realtor who was trying to sell the house.

***

• Wilson could still face additional charges in Lake County, as journals uncovered by investigators showed he planned to steal at least 100 homes in foreclosure. Authorities believe he stole at least two other homes, and are continuing their investigation into those crimes.

For the story, see Polson house thief found guilty.

Investor Lawsuit Targets 15 Wall Street Banks For Allegedly Duping It Into Buying $2.4B In Subprime Mortgage-Backed Securities

In Boston, Massachusetts, The New York Times' DealBook blog reports:

• Cambridge Place Investment Management is suing 15 Wall Street [] banks for misleading investors about a total of $2.4 billion in mortgage-backed securities that they sold, The Daily Telegraph reported.

• Cambridge Place, a fund based in Boston, Mass., is suing the U.S. branches of three British banks — HSBC, Barclays and Royal Bank of Scotland — and targeting JPMorgan Chase, Citigroup, Credit Suisse, Deutsche Bank, Merrill Lynch, UBS, Goldman Sachs and Morgan Stanley, according to the report. The lawsuit, filed in Boston, alleges that Barclays, HSBC and R.B..S all sold mortgage-backed securities based on “untrue statements,” The Telegraph said.

***

• In her latest Fair Game column, The New York Times’s Gretchen Morgenson noted that the complaint also details the anything-goes lending practices during the subprime mortgage boom.

For more, see Mortgage Investor Sues 15 Banks Over Subprime.

Another F'closed Homeowner Illegally Driven From Home; Cops Decline To Pursue Criminal Charges; Call Premature, Unauthorized "Eviction" A Civil Matter

In Manatee County, Florida, the Bradenton Herald reports:

• Jodie Meyers knew she was losing her Hollybush Terrace home to foreclosure, but never expected the bank to be so quick in taking it. She and her three children already were in the process of moving out when GMAC Mortgage won a foreclosure auction of the four-bedroom house last month. Just three days after the auction, the locks had been changed — even though the family still had personal belongings inside. That angered Meyers, who contends that amounted to trespassing because GMAC couldn’t legally take ownership for another week.

***

• [E]xperts said the episode highlights a little-known and sometimes gray area of the [Florida] foreclosure auction process: A waiting period before winning bidders can take possession. State law requires winning bidders to wait at least 10 full days before they can take title to a foreclosed property, in case there are any objections to the auction or new filings in the foreclosure court case. The waiting period begins when a court clerk issues a certificate of sale, usually on the same day as the auction. If there are no objections or new court filings at the end of that 10-day window, then the clerk can issue a certificate of title.(1)

***

• Meyers said nothing was taken from her home and she later was allowed back into the house to gather more belongings. But the episode so steamed her that she called the Manatee County Sheriff’s Office in hopes of pressing criminal charges. Deputies declined, telling her it was a civil matter.(2) She later filed a report at the sheriff’s office. Nearly a month later, Meyers has moved out but still simmers over what happened. “The house still was mine,” she said. “The bank had no business being there.”(3)

For more, see Foreclosure wait period can lead to problems.

(1) Even after the Clerk of the Court issues the certificate of title, the foreclosing lender can't take immediate possession of the premises unless it is obvious that it is vacant and abandoned. If someone is still occupying the home, the lender is required to obtain a writ of possession from the court (if they haven't already obtained it), and have the local sheriff's department execute it by:

• posting a notice on the front door giving the occupants seven days notice, and
• returning at the end of the notice period to boot the occupants (if they haven't already left), and hand possession of the premises to the new owner.

(2) Whoever it was at the Manatee County Sheriff's Office that told the foreclosed homeowner that the incident was a civil matter either didn't know what he/she was talking about, or just didn't feel like pursing a criminal investigation. All they had to do was check the records in the Sheriff Department's civil division to see if a writ of possession had been executed by them at the subject location. Assuming that it wasn't, this incident clearly has the trappings of a criminal trespass that should have been prosecuted, irrespective of whether a foreclosure sale took place or whether a certificate of title (ie. foreclosure deed) was issued to the foreclosing lender by the Clerk of the Court.

(3) Hopefully for the foreclosed homeowner, she can find competent legal counsel (or, alternatively, competent legal counsel can find her) to file a civil lawsuit against all the perpetrators and give them a well-deserved financial hammering.

See Long Island Judge Hammers Wells w/ $155K Tab For Oppressive, Heavy Handed, Egregious Conduct For Pre-Sale Lockout Of Homeowner In Foreclosure for an example of the kind of liability a lender (as well as the real estate agents and other authorizing and carrying out the illegal lock changes) may expose itself to resulting from these premature, unauthorized "evictions".

For the New York court's ruling in the case, see Wells Fargo v. Tyson, 27 Misc 3d 684, 2010 NY Slip Op 20079 (Sup. Ct. Suffolk County, March 5, 2010), in which the judge made the following, among other, observations in summarizing the applicable New York case law that formed the basis for the judgment in favor of the prematurely-evicted homeowner in foreclosure (bold text is my emphasis, not in the original text).

• Distilled to its very essence, trespass is characterized by one's intentional entry, with neither permission nor legal justification, upon the real property of another (Woodhull v Town of Riverhead, 46 AD3d 802 [2d Dept 2007]).
• The injury arising therefrom afflicts the owner's right of exclusive possession of the property (Steinfeld v Morris, 258 App Div 228 [1st Dept 1939]; Kaplan v Incorporated Vil. of Lynbrook, 12 AD3d 410 [2d Dept 2004]).
• The elements of a claim for trespass are intent coupled with the entry upon the land that is in the possession of another. In order for trespass to lie, general intent is legally insufficient. Instead, there must be a specific intent, either to enter the land or to engage in some act whereby it is substantially certain that such entry onto the land will result therefrom (Phillips v Sun Oil Co., 307 NY 328 [1954]).
• The intent need not be illegal or unlawful (MacDonald v Parama, Inc., 15 AD2d 797 [2d Dept 1962]), but even one who enters the land upon the erroneous belief that he has the right to enter thereon will be held liable in trespass (Burger v Singh, 28 AD3d 695 [2d Dept 2006]).
• Trespass will lie against a party if entry upon the land was perpetrated by a third party, such as an independent contractor or other party, at the direction of the party to be charged (Gracey v Van Camp, 299 AD2d 837 [4th Dept 2002]).
• It follows then, both logically and legally, that the injured party must have been in possession, whether actual or constructive, at the time that the alleged wrongful entry occurred (Cirillo v Wyker, 51 AD2d 758 [2d Dept 1976]).
• In the matter that is presently sub judice, it is clear that a trespass has occurred on at least two separate occasions. It is apparent to the court that this trespass was perpetrated against the property of defendant and was done at the special instance and request and upon the affirmative directive of plaintiff.

***

• In instances where the conduct complained of is willful, wanton or egregious, the court is vested with the power to award exemplary damages. Exemplary damages may lie in a situation where it is necessary not only to effectuate punishment but also to deter the offending party from engaging in such conduct in the future. Such an award may also be made to address, as enunciated by the Court of Appeals in Home Ins. Co. v American Home Prods. Corp. (75 NY2d 196 [1990]), "gross misbehavior for the good of the public . . . on the ground of public policy." Indeed, exemplary damages are intended to have a deterrent effect upon conduct which is unconscionable, egregious, deliberate and inequitable (I.H.P. Corp. v 210 Cent. Park S. Corp., 12 NY2d 329 [1963]).