[Editor’s Note: Has anyone noticed that the Chase Purchase and Assumption Agreement for the WAMU estate from FDIC and BKR Trustee has been changed to a new document bearing the same date? Comments invited.]
From Eric Mains
One of the biggest obstacles borrowers in foreclosure cases and their attorneys have is getting proper discovery done so that their cases can be adjudicated on the merits.
In point of fact, one of the biggest problems litigants face in court no matter what their case involves, is trying to delve into the facts regarding what actually occurred in their situations. In short, they are denied access to the truth.
An especially vexing problem for those who are defending against foreclosures is that even when the truth finally does come out, no matter how inescapable the facts of the situation are, is that sometimes government officials from State Attorney General’s on down fail to enforce the law as applicable to the facts uncovered. They either don’t like the outcome the law would dictate, or they have been receiving healthy “incentive” pay in the form of settlement money from banks or otherwise, or they simply don’t want to open the flood gates to the landslide of litigation they know will surely follow once the first major case breaks.
David Dayen reported on this apparent disregard for justice and the law not long ago in an article that included an interview with Bill Paatalo, who highlighted the failure of REMIC Trusts to legally register in Montana. From that article,“Paatalo asked the Montana Attorney General’s office to investigate whether the business trusts were avoiding state taxes by not registering. He says they’ve done nothing…..The Attorney General’s office declined to comment.
Paatalo added that the Stillwater County clerk, Sandy Fox, refused to answer his questions; Fox also didn’t respond to my request for comment……. “Title 35 is clear and unambiguous,” Paatalo said. “They circumvented and short-cutted every one of these laws. The judges don’t know what to do.”……..“In Gallatin County, Montana, clients of Paatalo’s private investigator business have also filed motions to dismiss their cases, armed with certifications from the Secretary of State that their trusts were unregistered, but no judges have yet ruled on them.” “It appears the judges don’t want to enforce the law,” Paatalo said. https://theintercept.com/2015/09/14/officials-cover-housing-bubbles-scummy-residue-fraudulent-foreclosure-document/ , David Dayen, interviewing Bill Paatalo regarding the apparent failure of REMIC Trusts to legally register themselves in Montana.
The Intercept, 9/14/15.This failure to uphold the law, to deliver justice to those who have struggled so long and hard to uncover the truth so they could have their cases decided on the merits, is anathema to all those who are brought up to think that their government and judicial system will protect citizens and their rights.
This brings about the question: What are we to do when the law will not be enforced? When our own government looks the other way as our civil and constitutional rights are being trampled on? There are sometimes simply no good or effective answers to this question, and certainly no satisfying ones for those who have lost their homes and been disregarded by the system they hoped would protect them.
The one sure thing that can help everyone involved in the fight for truth, no matter what their cause may be, is to speak up and spotlight it. Help dig up the facts, share what you find with others, and never think your contributions to the fight don’t matter. Sound like a platitude? Maybe to some extent it is, but the simple fact is we never know what bit of truth will suddenly turn the tide on a situation, or result in justice being served. I point you to an interview with Brandon Smith, an unknown but tenacious independent reporter that I am sure you probably never heard of.“Just kind of a quick run down of the effects of two FOIA requests, literally just two FOIA requests. The first one of course was for the video and the second was like, last week basically for everything involved with the case.
And a lot of other media organizations kind of followed me in that second request so the response went out to everyone for that but it would be great to sort of mention what the effect of two FOIA’s is. In this case it’s like — see I put it up on my Twitter page, kind of the summary — you have a murder charge of course, the police chief being fired, the department of justice civil rights investigation of the city, and also, most recently, the head of the police review authority quit.
So two FOIA’s made that happen and of course they were well placed FOIA’s, you know, and it has to do with talking to people and reading the news and caring and figuring out what’s important.But all that to say that the people seem to still have some power and I’m happy to tell people that.”https://theintercept.com/2015/12/09/fundraiser-for-heroic-chicago-independent-journalists-and-future-police-brutality-investigations/, Glenn Greenwald, interviewing Brandon Smith who broke the story of the cold-blooded murder by a police officer of 17-year-old African-American Laquan McDonald, who was shot 16 times. The Intercept, 12/9/15.
It is easy to become discouraged and give up on believing you can have any real effect on change, that’s exactly what the banks involved in the foreclosure crisis certainly want. Deny access to facts, deny access to justice, out money your opponents in court and wear them down.
They tried to do exactly that to me in a recent motion in my own case when they attempted to seal the court documents and deposition of known robo-signer Cynthia Riley from WAMU. They thought they would get away with it because they had done so routinely in multiple cases involving her before. I briefed the court on why the constitution and law do not allow for the dispensing of justice under a cloak of secrecy, and why the truth needed to be accessible by all. Guess what? I won. In fact, I won hands down. See http://bpinvestigativeagency.com/breaking-news-federal-judge-denies-sealing-of-cynthia-riley-documents/ .I could just as well have lost, but the point is occasionally our governmental officials and judges do listen (or are forced to listen) to the truth, and will do as they should. Speak up, don’t give up, fight, and help in any way you are able.
You never know when the facts or bits of truth you uncover will be heard and acted on. This is exactly what those trying to muzzle what is going on with wrongful foreclosures, or other violations of the law, are afraid of.Justice can be unpredictable at times.
On that note, I leave you with a final example of a court that did want to hear the truth from a recent case, and in fact told the lower court just that.“Dermabelle also disputes the circuit court’s denial of its Second Motion to Compel…….. However, the Second Motion to Compel was effectively denied by the circuit court’s grant of BNYM’s motion for summary judgment.……. At the hearing on Dermabelle’s Second Motion to Compel, the circuit court suggested to counsel for Dermabelle, “I’m not inclined, in your capacity, where you’re coming in as a purchaser of a foreclosure sale, [to allow Dermabelle] to come in and file this motion for discovery on a case in which your client doesn’t have any obligation on the note and mortgage.” “In BNYM’s MSJ, BNYM relied almost exclusively on the Declaration.
Without the Declaration, there was no basis for the circuit court to grant summary judgment because BNYM did not rely on any source of information other than the Declaration to prove that the Lemays had defaulted on their loan and that BNYM was entitled to foreclose. In addition to effectively denying Dermabelle’s Second Motion to Compel, the circuit court granted BNYM’s MSJ before Dermabelle could depose Jones about her declaration, which may have ameliorated the prejudice resulting from the circuit court’s denial of Dermabelle’s Second Motion to Compel. ……Therefore, effectively denying Dermabelle’s Second Motion to Compel was an abuse of discretion that substantially prejudiced Dermabelle.” http://stopforeclosurefraud.com/2015/12/16/bank-of-new-york-mellon-v-lemay-haw-intermediate-court-of-appeals-2015-bnyms-doctored-responses-to-their-discovery-requests-bnym-relied-almost-exclusively-on-the-declaration-without-the/
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