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Big Bank FAIL: Judge Rules Foreclosure Unconstitutional

occupycorporatism.com | February 3, 2014

By Susanne Posel

Judge George N. Bowden of the Superior Court in Washington State ruled against Bank of America (BoA) in a foreclosure battle that ended with the “nonjudicial foreclosure sale under the Deed of Trust Act (DTA) [deemed] void” and the court setting the foreclosure aside.

In this case defended by StafneTrumbull law firm in Washington State, the homeowner won his house from BoA which is another major victory against the unethical and illegal foreclosures industry that has left millions of Americans homeless.

Bowden acknowledged that this case was like most; “convoluted in the minefield” that is the Mortgage Electronic Registration System (MERS) system.

Bradburn, the homeowner, was told by BoA “that he should stop making his mortgage payments so that he could qualify for refinancing.”

BoA ensured that this homeowner was in default of the mortgage by promising to refinance; then initiated litigation against the homeowner to retrieve the property for failure by Bradburn to remain current on his payments.

Bowden pointed out that the DTA “seems to contemplate a borrower and a lender with an independent trustee having the power to foreclose on the deed of trust in the event of default by the borrower. The lender would normally hold the underlying note and be the beneficiary of it. Here matters have been complicated by the sale of the underlying note from HomeStar Lending to Countrywide, which was later acquired by [BoA].”

Interestingly, Bowden stated that “Fidelity Title was identified as the trustee but then MERS was characterized as the beneficiary ‘as the nominee’ of the lender and their assigns. At summary judgment it was claimed that the note was ‘owned’ by Fannie Mae although it was ‘held’ by [BoA], which was then described as the ‘servicer’ of the note at the behest of Fannie Mae.”

The evidence presented by the homeowner showed that “MERS was ever the owner of holder of the note.”

In 2013, Bain v. MERS held that this system “is not and cannot be a legal beneficiary under Washington State law. Only the legal holder of the note, the real creditor, has the power to appoint the substitute trustee in order to transact such legal actions as a foreclosure.”

Neil Garfield, property right attorney commented that MERS “is the electronic smokescreen that allowed banks to build their securitization Ponzi scheme without worrying about details like ownership and chain of title.”

Garfield said: “Properties were sold to multiple investors or conveyed to empty trusts, subprime securities were endorsed as triple A, and banks earned up to 40 times what they could earn on a paying loan, using credit default swaps in which they bet the loan would go into default. As the dust settles from collapse of the scheme, homeowners are left with underwater mortgages with no legitimate owners to negotiate with. The solution now being considered is for municipalities to simply take ownership of the mortgages through eminent domain. This would allow them to clear title and start fresh, along with some other lucrative dividends.”

Bowden cited that there were “contradictory statements that were filed. [BoA] filed a declaration with ReconTrust which identified Fannie Mae as the owner and beneficiary of the deed of trust, yet ReconTrust later identified [BoA] as the beneficiary.”

This shows the scheme enacted by BoA to sanction this illegal and unconstitutional foreclosure which was proven because the DTA was not adhered to; as well as “failure to materially comply with that statute renders a foreclosure sale pursuant to it invalid.”

Therefore the foreclosure implemented against the homeowner was illegal because there was a failure to appoint “a trustee that was not independent.”

Bowden clearly stated that he “I could not find that Fannie Mae as the claimed owner of the underlying note was a bona fide purchaser for value, even if it was not complicit in the violations of the DTA.”

It was concluded that BoA and MERS action were “unfair [and] deceptive” in nature and the homeowner was “injured” because of this foreclosure.

 

Back to February 2014 Archive

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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