Judge James L. Shumate Orders Halt to Bank of America Foreclosures in Utah

[Capt. Jack]

Source: KCSG Television

Judge James L. Shumate Orders Halt to Bank of America Foreclosures in Utah

By Morgan Skinner,

(St. George, UT) June 5, 2010 – A court order issued by Fifth District Court Judge James L. Shumate May 22, 2010 in St. George, Utah has stopped all foreclosure proceedings in the State of Utah by Bank of America Corporation, ; Recontrust Company, N.A; Home Loans Serving, LP; Bank of America, FSB;

snip>

"The Judge felt so strong about the case before him, he issued the preliminary injunction order without a hearing halting the foreclosure process. The attorney’s for Bank of America promptly filed to move the case to federal court to avoid having to deal with the Judge who is not unaccustomed to high profile cases and has a history of watching out for the “little people” and citizen’s rights."






Read more: http://www.kcsg.com/view/full_story/7816217/article-Judge-James-L--Shumate-Orders-Halt-to-Bank-of-America-Foreclosures-in-Utah?instance=home_stories1

---

Didn't Judge Shumate get the memo? Since when do banks have to follow the law?

Besides...who cares about "little people" and "citizen's rights"?

Wall Street is not gonna get this Genie back in the bottle!

http://www.foreclosurehamlet.org

[midnight]

1. There should be a national law to keep people off the streets and in their homes.

I hope Obama's programs for this issues gets going.

[cstanleytech]

16. I sympathize with many of the people

losing their homes myself however I am not sure if that law would be a good one.
Now a law I think that would be good is one that cracks down on predatory lenders, that and some harsher tax laws for house flippers because those are two of the main causes for the current housing issues.

[skepticscott]

24. How do you define "predatory lender" and "house flipper"

under the law, and what would you like to see added to the current lending laws that isn't already there?

[cstanleytech]

26. By predatory I mean

lenders who give out loans knowing that the buyer is likely to default.
As for the house flippers those are even easier to define, if you buy more than one house in a 2 year period and resale them then its pretty clear your flipping houses, all they need to do is tweak the tax laws a bit to to discourage the practice.

[1monster]

29. You need some fine tuning on that proposed law: There are those who buy houses

that need serious repairs and renovations to make them livable. They repair and renovate houses that would otherwise soon become condemned properties, providing homes, protecting, in some cases, the heritage of a house, and increasing the tax base of an area.

These people work damned hard for whatever profit they make on resaling the property.

Perhaps you should define a "flipper" to exclued people who do their own small private version of urban renewal.

[liberation]

39. Well, probably you should fine tune your definition of "urban renewal" too

;-)

In any case, "flippers" do tend to buy plenty of properties in a single year.

[1monster]

51. I put "urban renewal" in quotes for a reason. I know of some really lovely

Victorian and Queen Anne homes that were slated for the wrecking ball and bulldozer that were save by real estate people who bought the houses, repaired and renovated thme and sold them, yes for a tidy profit. But those houses would not be there without those "flippers???"

[louis-t]

30. Wait, 'house flippers' are to blame? Who told you that?

I need you to explain exactly how flipping houses damaged the housing market. I'll wait, it might take you awhile.

[joeglow3]

36. Ummm, not too hard

Look at the Florida market and all the empty condo's. This practice drove housing prices for EVERYONE.

[liberation]

38. Very simple: Speculation.

People buying houses that are not going to live in them limits artificially the offer for those who are looking for a house to live. Thus artificially increasing the price for that place in the market.


Flipping is not an inherently illegal practice, since it complies with the sociopathic nature of supposedly free market systems. But I don't believe people are entitled to have everything both ways: reap the benefits from usury-like behaviors, while still pretending there is nothing inherently immoral with their behavior. You only get to pick one...

[skepticscott]

41. It's not quite that simple and you know it

What limits the number of available houses more, someone buying a house and living in it for 20 years, or someone who buys a house with the intention of selling it again within a much shorter period?

And how exactly is flipping a house "sociopathic"? People buy something in poor condition, put work and money into it to improve it, and sell it (they hope) at a higher price than they bought it. What precisely about that do you have a problem with, and what about it is "usury-like"? If people take risks and put in work and effort, they are entitled to reap the benefits. The only thing to object to is if people taking those risks reserve the benefits for themselves, but want to walk away and leave someone else holding the bag if their investment tanks.

[jmowreader]

49. You don't seem to know many house flippers

I know a BUNCH of them--they were some of my best customers when I was working at Home Depot.

Your standard house flipper buys a house that's not in real good condition. They then put as little money as they can into making it "look" pretty--they'll paint it, wash the roof, put some cheap carpets in it, maybe change the faucets and doorknobs if they're real ambitious. Then they expect a big markup--in Fayetteville they were flipping houses they bought in the 60s into the 90s. The problem is the house is STILL in bad condition; it just looks prettier.

Think of it this way: Take Michele Bachmann and run her up to Sally Herschberger's salon for a $1500 cut-and-color job. Put $100 into her nails, $500 into her makeup and dress her in a $10,000 gown. She'll look fantastic--but peel away the $12,100 of glamour, and you're still stuck with Michele Bachmann.

[skepticscott]

54. None of which takes away the right or ability of a buyer to decide

if the improvements that have been done justify the price being asked, or to decline to make an offer or to negotiate the price down if they don't think so. Both sides in the transaction are trying to get the most out of their money...what's wrong with that? Unless you're claiming that flippers are making houses worse than they were when they bought them and then just abandoning them, I'm not sure what your point is.

[jmowreader]

55. I claim flippers make houses unjustifiably expensive

Here's the other problem: comps.

One of the biggest things that goes into "how much is your house worth?" is comparative pricing--how much did a similar house in the same neighborhood sell for? (This affects you even if you're not selling; tax assessors look at the same thing.)

Let us say you're Scott the House Flipper and you buy to flip a house two doors down from mine. You spend $75,000 for it (in this example I live in a cheap neighborhood) and flip it to $105,500. That transaction completed, you buy another house half a block away and flip it from $82,500 (remember, there's a $105,500 comp on my street) to $106,200.

When the county decides to revalue houses, they're going to see the $105,500 and $106,200 closing prices and think, "the three-bedroom-two-bath houses on Oakwood Drive are now worth $106,000." And I'm going to be paying taxes on a $106,000 house I don't have.

[skepticscott]

56. And when you go to sell your house

or to borrow against the equity, you will benefit from those same higher property values. In fact, by your own argument, the flippers will have made your house worth a lot more than it really is.

So again...what the problem and what's your point? The flippers don't hold a gun to anyone's head and force them to pay more than they want to. If someone has paid that much for an improved house, that's because it IS worth that much to them. If it weren't, they wouldn't buy, or they'd negotiate. In either case, the price goes down to what the market can sustain. Econ 101, dude.

[sendero]

65. House flippers..

... were absolutely part of the problem. You are kidding right?

Don't get it? "Investors" (i.e. flippers) that owned several houses when prices started going soft lost them all to foreclosure. This is bad for the housing market.

Someone who owned one house, rehabilitated it and sold it - not the same thing. But those flippers were the definite minority in these overheated markets. The flippers I'm talking about were just SPECULATORS.

[skepticscott]

33. As with most laws, the devil is in the details

What does "likely to default" mean? How likely? What numbers are you going to use, and what is the basis policy for setting a sharp line for likelihood of defaulting? And how is a lender supposed to be able to know what sacrifices a borrower may end up making in other parts of their budget in order to keep up their mortgage payments, especially if they experience other financial stresses, such as loss of a job?

[cstanleytech]

53. Aye, defining it would be difficult but not impossible.

[RUMMYisFROSTED]

52. I know One when I see One.

:think:

[aquart]

43. A law that "cracks down" on lenders without specifically insisting people stay in their homes?

Worthless.

[cstanleytech]

59. If your talking about a blanket right for anyone to stay in the homes then I would say

no to that. If ya wanna setup something up that gives people a chance to get back on their feet in a set period of time not to exceed 1 year in an attempt to save their homes though I would be more than happy to say yes.

[Vincardog]

46. The main cause for the current housing issue is Financial predators bundling sub prime mortgages

as AAA+ prime a thousand times more than the loans they represented.

The OTHER main cause for the current housing issue is the systematic dismantling of the NEW DEAL protections by the conservative believers.

The current financial debacle is the result of the failed political and economic beliefs of
the HARD RIGHT WING NUTZ.

The attempt to blame the consumers for "Buying too much house"
or the workers for becoming 'disillusioned'

IS simply RW Bat shit.

[laughingliberal]

47. Laws addressing predatory lending and house flipping do nothing for a lot of people caught in this.

The mortgage backed securities scams would not be addressed. There does need to be a national law to help homeowners caught in the downturn and the programs which the President set up never should have been 'voluntary' on the part of the bailout recipients. They've, once again, taken the money and gamed the system helping mostly themselves.

I'm not sure how you would pass a law against 'house flipping.' If someone buys a home, restores it and sells it at a profit, I'm not sure how you make that illegal.

[harmonicon]

18. I agree.

I don't know about foreclosures, but in France, you can't get kicked out of the place you're living during the colder months... at least if they're going to make anyone homeless, they will only do it in the summer.

[Socal31]

37. No, there should be laws to prevent people from buying too much house.

[skepticscott]

42. What exactly is "too much house"?

And why in the world should anyone but the buyer be in a position to determine that? More house than you might need or think someone else needs is no guideline at all.

[Socal31]

62. Actually I get to decide on a daily basis what is too much house for people.

The reason we are in the mess we are in is because people were buying more than they can actually afford. I am not blaming the borrowers here soley, believe me. They are partly to blame, but the system failed us. And we are now paying the piper....

[skepticscott]

63. There is a huge difference between business decisions

made by a particular lender about people who apply for a loan with them, and public policy written into a law that would affect everyone.

If you think there should be a law about it, as you claim, then what language would you include?

[xchrom]

2. Recommend

[izquierdista]

3. Somebody forgot!

To put judges in flyover country on the Bank's shopping list. I'm sure it is a mere oversight and they will buy one the next time an election rolls around.

[Capt. Jack]

66. Send Judge Shumate some love! Call his Office!

[phone]

I imagine the Judge is under intense pressure. How dare anyone question Bank of America!!!!

http://www.foreclosurehamlet.org

[Angry Dragon]

4. Off With Their Heads

Businesses exist with the consent of the people. We regulate tattoo parlors, bars, a host of other small businesses but we refuse to regulate huge corporations that have the power to destroy vast number of lives. Makes me sick.

[SocialistLez]

14. +1

"We regulate tattoo parlors, bars, a host of other small businesses but we refuse to regulate huge corporations that have the power to destroy vast number of lives. Makes me sick."

Of course we all know why big corporations are not regulated the way they should be.

[truedelphi]

35. Our government even put a young teen out of business for BRAIDING hair

She had made the mistake of becoming high profile by winning an award, and then the powers that be realized she had no beauticians' license - and ZAP! she was out of her fun and profitable job.

Just think of the lives that were saved by that decision!

Meanwhile our Federal and State Governments let banks take Trillions of our hard earned money via Bernanke/Geithner giveaways, and let the banks foreclose on us. All that is "Nothing to see here - these people did this to themselves."

When and how did the middle class wage earner decide to Out Source the jobs? Or to set up Wall Street like a combo Ponzi/Greed Casino? That we have to Bail Out while they foreclose on us?

[jody]

5. Thanks. n/t

[orbitalman]

6. It shouldn't be just Utah...

but every state in the Union. Let these assholes go to federal court. The DIE HAS BEEN CAST.

[ChairmanAgnostic]

21. it isn't. at least three other states view MERS transactions as

an utter failure, wherein the originating bank no longer has an interest, but the current owner of the security never had any registration of change in interest, so they have nothing to sue over, either.

[No Elephants]

27. But, the decision is based on Utah's state laws.

[melm00se]

7. this ruling could

have serious repercussions.
Does a meeting the national chartering actually trump the state's requirements?
how will this affect the secondary market for mortgages?
If ruling in the individual's favor, will that limit mortgages to just the banks in the state?
how will that affect rates?
what about FHA and VA loans? do they have "offices" in the state as per the requirements of the Utah statute?

I think that the federal courts may assert jurisdiction in this case and overturn the state judge's injunction.

[FarCenter]

10. the secondary market for mortgages is already dead

No investor will buy a mortgage security that is not guaranteed by the Federal Government. Almost all mortgage business is now Freddie Mac and Fannie Mae.

[liberation]

40. I know, the banks are the real victims here... no?

[burnsei sensei]

8. Neighborhoods stay intact

when people, not banks, occupy houses.
The social consequences of the foreclosure crisis are increased homelessness, decaying and blighted neighborhoods.
The society has a vested interest in seeing that banks do not own homes.

[smoogatz]

9. The second part of the motion is very, very interesting.

It basically challenges the enforceability of the whole bundling process. Apparently under Utah law, if the promissory note becomes seperated from the title deed, thpe note is no longer enforceable. Obviously if the note is sliced, diced, bundled and sold as a security, it's no longer attached to the title deed in any obvious way--it becomes a product distinct in itself, or rather a small part of such a product. Good point, smart lawyer--we'll see.

[Daemonaquila]

11. My gut says it won't work...

but that doesn't keep me from rooting for the lawyer and the legal theory. It would be awesome if they won at this level, but I suspect a cowardly appeals court would find a way to reverse the decision, even if it was essentially airtight, to avoid the "scary" consequences.

Many years ago I worked for a kick-ass, smart judge who'd do something like that if the legal argument was valid. Some of our morning conversations would start with "So, do you feel like being appealed today?" Sometimes the answer was yes - and sometimes the appeal overturned the decision, and even then sometimes the next appeal reinstated it or the legislature changed the law in line with the decision. Go Judge Shumate!

[Capt. Jack]

12. Florida Supreme Court Tightening Foreclosure Rules

Florida Supreme Court Tightening Foreclosure Rules

By Todd Ruger

http://www.heraldtribune.com/article/20100605/ARTICLE/6051036

snip>

"The Florida Supreme Court has reaffirmed its fight against the sloppy legal work being used to retake homes in thousands of foreclosure cases across the state.

A review of Manatee and Sarasota county cases showed attorneys for banks and lenders had widely ignored a new high court rule that requires them to verify -- under penalty of perjury -- the accuracy of allegations and paperwork in the foreclosure case.

When local judges started throwing out the foreclosure cases for that reason, some attorneys for lenders contended that the rule, created in February, was not yet in effect."

I have one issue with this piece...the definition of "sloppy":

Marked by a lack of care or precision; slipshod

If this were "sloppy" the end result would not be the same millions of times!

This is INTENTIONAL and CAREFULLY planned! Florida is the Tip of the Spear!

http://www.foreclosurehamlet.org

[ChairmanAgnostic]

19. MERS

is a corrupt group of criminals. They sold a "service" in which they would bundle mortgages, and do the paper work on the transfer of titles, etc. Except they never have done them. Every state has rules about how deeds, titles, liens, and mortgages are to be filed with the appropriate legal body (often the county clerks) including filing fees. MERS 'did away with all that' paperwork. Heh, yet it is that very paperwork that states require to show interests, ownership, etc. The banks who used MERS to sell the financial instruments earned money from the sale. But those sales were not recorded, in fact, there may be no documentation at all, except that the original bank sold its interest. The original banks, under the MERS system, agreed to enforce foreclosure activities if the homeowner was in default. But having sold their interests, and having no documentation to prove that they have any interest left, some courts have denied their ability to sue the homeowner.

Had MERS filed all transfer of interest documents with the local county, paid substantial fees to the county to register the transfer of interests, and appointed the originating bank as their agent, there would be a different result. But they didn't do that. Often MERS does not even know how many companies traded (bought and sold the bundled mortgages) those instruments before the default.

Frankly, it could not happen to a more deserving group of scum.

[smoogatz]

22. Very enlightening.

Thanks. This is interesting stuff, indeed.

[Capt. Jack]

32. "TRUSTEES" for Securitized Trusts May Not Have Standing in Florida Courts!

From an astute poster on http://www.foreclosurehamlet.org

"TRUSTEES" for Securitized Trusts May Not Have Standing in Florida Courts!

Trustees for some of these securitized trusts intimate or even claim be able to bring action on behalf of the trust by virtue of the the notion that they are a "National Bank" or some other entity registered in the State of Florida for other purposes, i.e. HSBC, Deutsche Bank N.A., Chase, etc.

That supposed standing may likely not be valid when the "National Bank" is acting in the capacity of "Trustee" for the securitized trust.

As mentioned many times before, check the POOLING AND SERVICING AGREEMENT for the plaintiff trust carefully. Take note of it's PRINCIPLE PLACE OF ADMINISTRATION as defined in that PSA.

Be familiar with the following:

http://www.foreclosurehamlet.org/profiles/blogs/trustees-for-securitized

[aquart]

44. VERY good point. People have been using the separation.

I've seen rulings and cases posted here where it was decided until the idiots could find the title, deed, basic papers, they didn't have a right to evict.

But then, we've also seen evictions without papers or any shred of a right at all.

[SocialistLez]

13. I wish Congress could have passed that bill, whose name escapes me

which would have required banks to let people rent out their homes or let people mortgage their home based on it's CURRENT value.

[jgraz]

15. This is great news but... wow, who wrote that story?

It reads like a bad fifth-grade book report. "Attorney's"? Are you kidding me?

[UpInArms]

20. lots of badness in reporting - but the information did make it through it, regardless

our schools no longer teach proper sentence structuring and parsing

:sigh:

[adamuu]

23. Egregious grammatical errors.

What a shame. I spread the link around a bit. How embarrassing.

I had to read this sentence three times before I figured out there was a missing comma

The lawsuit filed by John Christian Barlow, a former Weber State University student who graduated from Loyola University of Chicago and receive his law degree from one of the most distinguished private a law colleges in the nation, Willamette University founded in 1883 at Salem, Oregon has drawn the ire of the high brow Bank of America attorney and lawyers of the law firm of Reed Smith, LLP, the 15th largest law firm in the world, according to their website.

Painful.

3rdGdTeach wrote on Sunday, Jun 06 at 09:07 AM »
Ms. Skinner, you get a "D" grade for this effort. Your error is this: "...their subsidiary company’s who are apparently above the law..." is an error my 9- and 10-year old students don't make. The word is "companies" which is the plural of "company." You've used the possessive form incorrectly. Do you have no editors?

This is an important article about a subject that affects many, and has been linked and viewed all over the United States. I'm not the only one who is going to see this.

LOL

[smoogatz]

25. It reads like a fairly typical freshman essay.

College freshman, I mean. It's exactly the kind of writing I see nearly every semester at our regional U. Public schools don't actually have time to teach writing anymore: they're too busy trying to prep kids for standardized tests and keeping track of everybody's meds. Most of the students we get in our freshman comp classes would have been considered remedial cases even a decade ago--now "remedial" is the new mainstream. It's very, very bad. No criticism of the public schools intended--they have an impossible and largely unfunded mandate, and mostly do the best they can in an extremely difficult situation.

[UpInArms]

17. huzzah for attorney Barlow!

Bank of America took over the bankrupt Countrywide Home Loan portfolio June 3, 2009 in a stock deal that has over 1100 home owners in foreclosure in Utah this month alone, and the numbers keep growing, according to Barlow.

The second part of the motion, Barlow filed, claims that neither the lender, nor MERS*, nor Bank of America, nor any other Defendant, has any remaining interest in the mortgage Promissory Note. The note has been bundled with other notes and sold as mortgage-backed securities or otherwise assigned and split from the Trust Deed. When the note is split from the trust deed, “the note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgages) § 5.4 cmt. a (1997). A person or entity only holding the trust deed suffers no default because only the Note holder is entitled to payment. Basically, “he security is worthless in the hands of anyone except a person who has the right to enforce the obligation; it cannot be foreclosed or otherwise enforced.” Real Estate Finance Law (Fourth) § 5.27 (2002).

[davidwparker]

28. None of the bailed out banks should be allowed to foreclose on the primary

home of ANYONE.

If capitalism followed its normal path, those banks would have been liquidated. Now that they have been saved, then they want the letter of the law. Nonsense.

[lovuian]

31. Thank you Judge

and Federal courts WAKE UP

[GiveMeFreedom]

34. My Usual B of A rant belongs in this thread..

FUCK BANK OF AMERICA !!


On edit: Thanks Judge for believing in the rule of law for everyone in the United States!!

[aquart]

45. Yes, it does.

[alp227]

48. And Congress shall keep it up with financial reform. n/t

[sulphurdunn]

50. I've got a question

Can a bank foreclose, evict the tenant, fail to sell the property while it falls down from neglect, then forcibly return the property to the evicted tenant with the mortgage obligation still intact? :shrug:

[annm4peace]

57. Woooo HOOOOOOO

Well at least this is happening in one of our states.

Utah doesn't have high rate of foreclosures like many states, but everyone is a family, everyone is someone's life being turned upside down.


I was just getting read to post a another long foreclosure fight in Minneapolis, MN..

and was so glad to see what is happening in UT.

I hope it helps others.

Please people.. don't give up, try to fight it. It takes courage, strength and help from others.. but if you can please fightit, make it hard on the banks. You might not win your house, but at least you made it hard on the banks, if others did the same then there would be changes.

the major banks are still making profits in the next quarter.

[annm4peace]

58. Here is one fight in Minneapolis.

Parks Family still fighting to save their home: June 8, 4:30 until 5:30pm

Fighting against broken promises…

Save the Parks Family Home!



On Tuesday, June 8, from 4:30 until 5:30, community members will gather at the home of Leslie Parks, 3749 Park Avenue in south Minneapolis, to re-launch a public pressure/call-in campaign to save the Parks family’s home. The target of the calls will be officials of IndyMac/OneWest banks.



In November and December of 2009, our campaign was successful in keeping Leslie Parks in the home that has been in the Parks family for 20 years. IndyMac/OneWest promised to rescind the sheriff’s sale and to stop any eviction proceedings. This allowed the Parks family to start negotiations with IndyMac/OneWest to get their house back. Now, six months later, IndyMac/OneWest has NOT rescinded the sheriff’s sale.



“When the spotlight was on the bank, they acted like they were going to do the right thing. But once they were behind closed doors, they were back to their old ways,” said Deb Konechne, of the Minnesota Coalition for a People’s Bailout. The Minnesota Coalition for a People’s Bailout is coalition of twin-cities groups that came together to fight for people’s needs during this time of economic crisis.



Here are the demands that will be put forth in the call-in campaign:



1. IndyMac/OneWest: Keep your promise! Rescind the foreclosure and sheriff’s sale!

Even though IndyMac/OneWest stated in a letter dated Nov. 25, 2009, “…we have started the process of rescinding the Trusteed Sale…” they still have not done so!

Tell them to rescind the sheriff’s sale and give Tecora Parks the title to her home!



2. IndyMac/OneWest: Give the Parks family an affordable loan modification!

The bank is trying to force the Parks to scramble for outside financing. This is wrong. IndyMac/OneWest was complicit in the fraudulent/scam ARM mortgage; they should be the ones to make it right to the Parks family.

The Parks need a 30-year fixed rate mortgage at an affordable rate, based on the home’s current value.



Background info:

Leslie Parks lives in south Minneapolis. Her family has owned the building for over 20 years. Because of needing to pay for city-ordered storm windows, the Parks family was swindled into getting an ARM (adjustable rate mortgage). The man from Allied Mortgage who sold the scam ARM lied and insisted it was a conventional loan. The Parks had perfect credit and qualified for a conventional loan hands down. But they were lied to, got swindled into an ARM (that particular kind of ARM is now illegal), and after months of trying to keep up, both Leslie and her mother lost their good credit and went into foreclosure.



“The banks messed up the system so bad and we the taxpayers bailed the banks out, with an expectation that the banks would help save people’s homes. They took our money but refuse to modify people’s loans so we can stay in our homes and save our communities,” says Leslie Parks.



Contacts: Linden Gawboy, MN Coalition for a People’s Bailout 612-296-5649, Lynette Malles, Poor People’s Economic Human Rights Campaign, 651-497-4644

[Capt. Jack]

64. I'll call these two organizations this morning.

Hi annm4peace,

Once I get a little more information I will create an "Event" on our site to see if we can help spread the word.

YOU can help!

Join with us!

http://www.foreclosurehamlet.org

I'll post a link to the Event when it is done.

Thanks!

[Lorien]

60. Judge James L. Shumate

:yourock:

[quakerboy]

61. so If I read that right

If the lawyer is successful with the second half of his case, it would mean that none of these securitized mortgages will be able to be collected on. I don't think that would be stood for by the PTB.