HAWAII SENATE RESOLUTION DIRECTING THE ATTORNEY GENERAL TO INVESTIGATE CASES WHERE FRAUDULENT TRANSFERS AND ASSIGNMENTS OF MORTGAGE LOAN DOCUMENTS ARE ALLEGED.

HAWAII SENATE CONCURRENT RESOLUTION  S.C.R. NO. 39 – NEEDS YOUR SUPPORT AND TESTIMONY BEFORE MARCH 13, 2012 at 10:15 A.M.

Honolulu, Hawaii March 9, 2012    Mahalo Hawaii Senators!  

In an effort to get the Hawaii Attorney General’s focus on the fraudulent documents filed in the Hawaii Bureau of Conveyances, the Hawaii Senate drafted a Concurrent Resolution in cooperation with the House Representatives:

DIRECTING THE ATTORNEY GENERAL OF THE STATE OF HAWAII TO INVESTIGATE CASES WHERE FRAUDULENT TRANSFERS AND ASSIGNMENTS OF MORTGAGE LOAN DOCUMENTS ARE ALLEGED“…and just in time.

These fraudulent documents were filed by primarily local attorneys for mainland banks, pretender lenders and [empty] Wall Street securitized trusts that allegedly held mortgage loans – most of which were never transferred timely to the New York and Delaware mortgage loan trusts. Confidence Game Producer Nick Verbitsky provided another compelling film clip that leads us into the thick of the fraud.

Confidence Game is an in-depth look into the last days of the failing Wall Street giant that was taken down by it’s internal corruption and greed.  “Bear Stearns was proving that crime did pay in the subprime mortgage markets.” Even to the point of selling loans they could not service in states where registration was required by code that they failed to procure.

Bear Stearns management worked hard to cover-up the unlawful oversights and hid the scandal from regulators.  For example, Bear Stearns quietly pulled West Virginia loans from their trusts after violating W.Va laws and replaced them with similar documents apparently without disclosure to the state, borrowers or investors.  Many states have the same or similar codes and regulations as W.Va. and should be looking for various assignments by Bear Stearns and other Wall Street investment firms in their recordation departments.  Better to know now, before the state is involved in some class action.

Here is another clip from Confidence Game.

Please be patient it takes a few minutes to upload – but its worth it!

This isn’t just about robo-signing anymore. The Hawaii SENATE CONCURRENT RESOLUTION  S.C.R. NO. 39 couldn’t have come at a more opportune time. When you realize that Bear Stearns was just the tip of the iceberg and that ALL the banks played the same corrupt games, you begin to realize how America has been fleeced, driven to disaster and financial ruin by criminals. The Resolution needs your support and testimony ASAP.  Here are a few clauses in the Resolution and, if you agree, please let the Legislature know what this means to you. To submit your testimony click HERE.

“WHEREAS, it appears many loan transfers, assignments of mortgage, and quitclaim deeds may have been fraudulent and their filing statuses inaccurate due to illegal loan transfers and lack of recordation at the state level; and

WHEREAS, fraudulent documents filed by lenders and the failure to follow securities procedures have clouded property title in Hawaii and damaged borrowers and subsequent purchasers; and

WHEREAS, nonjudicial foreclosures do not allow homeowners the opportunity to challenge these fraudulent loan documents;

BE IT RESOLVED by the Senate of the Twenty-sixth Legislature of the State of Hawaii, Regular Session of 2012, the House of Representatives concurring, that the Attorney General of the State of Hawaii is directed to investigate instances where homeowners allege fraudulent mortgage documents, assignments of mortgage, or title transfers, and to take action so that any financial settlement reached with mortgage servicers appropriately compensates for, and accurately reflects, the extent of the negative impact on all the victims of the fraud, including homeowners and the State; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, Attorney General, and Director of Commerce and Consumer Affairs.”

Unfortunately, it appears Hana, Maui, Hawaii District Court Judge Barclay MacDonald must not have read the Hawaii Senate and House Resolution S.C.R. 39 yet… as on Tuesday, Judge MacDonald DENIED a homeowner’s Rule 60(b) motion which was based on a certified FRAUD forensics report of a fraudulent Wells Fargo Assignment of Mortgage – a VOID document… not voidable, but VOID!

Judge MacDonald remarked that he saw “recorded” documents in the Hawaii Bureau of Conveyances – as if to say, because they are recorded they are accurate.  Hogwash, Judge!

Anyone can file anything they want in the Bureau of Conveyances, “we have to file everything that is presented,” said Hawaii State Senator Kalani English, “it is not the responsibility of the Bureau to check it for accuracy in the regular system.”  Senator English is related to the Phillips-Tehiva family who have owned the fraudulently foreclosed property noted in the certified report for well-over 100 years. Maybe now with the Resolution the Senate will put enough pressure on Governor Abercrombie and the Attorney General to investigate these phoney documents and pull them out of the state files.

As if reading from a script, Judge MacDonald said he was not finding “standing” for the Tehiva family (homeowner) to make a claim against the Assignment. It also appears Judge MacDonald hasn’t read Nicolls Pointing Coulson, Ltd. v. Transportation Underwriters, 777 F.Supp. 493 (LA,1991), which is quoted in Livonia Property Holdings, L.L.C. v. 12840-12976..., 717 F.Supp.2d 724 (MI 2010) that has become the “borrower defeatist, bank friendly” judge favorite case to quote, remarked an attorney in observance.

Nicolls cites, “It is true that a debtor cannot challenge an assignment of a debt by a creditor unless he can show he is prejudiced by the assignment. Keith v. Comco Insurance Co., 574 So.2d 1270, 1276 (La.App. 2 Cir.),” as quoted in Nicolls and continues:  …“[i]n the transfer of credits, rights or claims to a third person, the delivery takes place between the transferrer and the transferee by the giving of the title.” …“Title” to a right is the equivalent of complete ownership of the right, and under Louisiana law a party with perfect ownership of a thing is one with the right to use, enjoy and dispose of the thing as he sees fit.”

It would appear in Nicolls that a fraudulent, VOID Assignment, whether “recorded” or not would have a prejudicial impact on the homeowner whose Title and ejectment are based on a non-judicial foreclosure based on the use of fraudulent, VOID AND robo-signed documents.

Lord knows, if we filed an Assignment of Mortgage from MERS to ourselves on the Judge’s property (yes, he has a MERS mortgage) – he might take a different position…a rather dim view of such an illegality – but under Judge MacDonald’s analogy, he would not have standing to object.

Hawaii, Michigan and Louisiana are all mortgage lien states, therefore, there are UCC Articles 3,  8 & 9 issues to understand and none of this law was applied in the Tehiva decision… just the fact that there was a “recorded” Assignment of Mortgage in the state Bureau of Conveyances.

Clearly these issues of mortgage securitization and fraudulent assignments are well above the average IQ and are highly specialized issues. A lot of lower court judges are former attorneys that were practicing general law, are overloaded with cases, lack sufficient staff, and have zero time and energy to read and research this convoluted subject.  Many, like Judge MacDonald at 67, are nearing retirement and it’s no surprise that they are worried about their own pension funds that might disappear if they’re rulings cause the banks in any way to go under.

Sadly, the truth is that their pension funds are in reality all but gone anyway in the $600 Trillion debt created by the morally corrupt and psychotic Wall Street greed.  It would be better to make good law and write a best selling novel or documentary. Certainly, you’d sleep better at night.

So, now it is more important than ever to support the SENATE CONCURRENT RESOLUTION  S.C.R. NO. 39.  You can add your testimony online HERE.
Do it PLEASE before March 13, 2012 at 10:15 a.m.

Mahalo Senators TSUTSUI, BAKER, ENGLISH, ESPERO, FUKUNAGA, GALUTERIA, IGE, KIM, TANIGUCHI, Dela Cruz, Green, Ihara, Ryan, Wakai. We thank each and every one of you for your courage and integrity. And for the concurring House Representatives.
Mahalo for your kokua.

Mahalo to Marcy for pushing this Resolution into the light. Please let the Senators and House Reps know you appreciate their efforts.

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25 thoughts on “HAWAII SENATE RESOLUTION DIRECTING THE ATTORNEY GENERAL TO INVESTIGATE CASES WHERE FRAUDULENT TRANSFERS AND ASSIGNMENTS OF MORTGAGE LOAN DOCUMENTS ARE ALLEGED.

  1. In Judge McDonalds world Iguess there is no need for title insurance. Whoever filed first must be right. These Judges need to be evicted from their benches and made to reread the 5th Amendment. Deep investigation with regard to conflict of interest and pension funds should be mandatory. Let them refuse but then they must recuse.

    • Maybe they just need to have one of these crazy fraudulent assignments filed on their properties… You don’t have to be in arrears and if you don’t have a title company research you wouldn’t even find it until it’s too late. Judge MacDonald had a canned speech, it wouldn’t have mattered if Mother Mary appeared… He wasn’t going any deeper and you could tell he was physically uncomfortable. I always thought when there was clear evidence of fraud that there had to be an evidentiary hearing. Think of all the properties somebody could take over – make up a trust.. Even incorporate it somewhere like the Caymans – assign the properties to the trust, foreclose, sell them, record the documents, and pocket the funds in an off shore bank account. By the time they figure it and make laws against it IBG – YBG.

      • Point well taken. Problem is if I were to perpetrate such a fraud I would be emailing from behind bars. The place the banksters and complicit judges should be. The main problem is not so much the law as the courage to enforce it. In my small amount of experience. The truth and the law have taken a back seat to making the case go away.

  2. Chase Bank NA is my servicing lender. They claim in writing to physically possess my original note and mortgage claiming they bought them when they bought the assets of Washington Mutual Bank from the OTC/FDIC-R on September 25, 2008. This is a pretty good trick considering my note and mortgage were sold at least four times before entering the REMIC TRUST before year’s end in 2007 (real estate mortgage investment conduit). How in the world did Chase get the certificate holders of the Pass Through Certificates of the REMIC TRUST to surrender them to Chase? Does anybody out there know how Chase accomplished this? My chain of title as revealed in a comprehensive securitization audit and affidavit retrieved from the records of the SEC reveals no assignments or endorsements to Chase. They are evidenced as servicer only, yet, they sent me a notice of default after I missed my second payment. Chase has no legal right to foreclose unless they can produce an original wet ink signature of BOTH mortgage and note as both must comport to be legal. There is a class action suit against Chase for defrauding bankruptcy courts by manufacturing and photo shopping documents to make it appear they have original documents. They got caught red handed. Stop the fraud. SHOW ME THE ORIGINAL NOTE AND MORTGAGE before you attempt to foreclose on me.

    • If your loan is in a securitized trust, then it couldn’t possibly have been purchased by Chase during the WaMu acquisition. Loans that have been deposited into trust pools are owned by certificate holders (investors), not retained by lenders. More likely WaMu was the servicer and Chase obtained the servicing rights from them. They don’t own your loan but will have taken possession of the note and mortgage documents, if they didn’t already have possession of them in their role as document custodians, in order to file foreclosure proceedings on behalf of the trust that holds the pool of loans.

      • Only the assignment of mortgage will offer the answer of whether the mortgage loan made it into the trust on time. If not, the assignment is VOID pursuant to NY Trust law. It is becoming more than obvious that the loans never made it into the trust – on purpose. Which could be why, as the scheme and the banks started to collapse and consolidate, that they would get confused as to what they had and what the investors were supposed to have. No assignment… no tickie, no washie…

      • Question or Reply? The investors or certificate owners own the Notes. The original wet unaltered notes are supposed to be in the possession of the Custodian of Records, “contracted” by the trustee of the securitized trust. You transfer the Notes by endorsement, which are endorsed on the actual Note or an allonge, which has to be attached to the Note. The Deed of Trust or Mortgage is recorded at the local county recorders office (or its equivalent). You transfer or assign the DOT or Mortgages via the recorded assignments and unless you have a MERS loan, there should be transfers between all parties involved between origination and securitization but not the service providers. In addition, these assignments would not be in the possession of anyone but the Recorders Office (though anyone can have a copy). So, a service provider represents the Trustee of the Trust who represent the investors. They would not have the original note. So technically, you would not have an assignment to Chase, if they are the service provider yet the service provider usually controls the entity (another trustee), which is substituted, or should be, on a Substitution of Trustee (recorded), who now is responsible to foreclose on you. In California, there is a group filing criminal cases against the foreclosing trustees because under penalty of perjury, they are preparing the respective foreclosure documents with the alleged original documentation in hand and apparently they never have. So just another legal maneuver to create headaches for the lenders who have a way of getting around everything the do wrong.

    • Go to the FDIC website and do a Freedom of Information Act request and ask them if your loan was among those transferred to Chase.

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  4. the original note and mortgage is important but so is assignments. and endosements. on the note. please check the importance of all three. i also have mo wells fargo assignments. they phot shopped my signature on my note. want to laugh…the pen that i used to sign the original mortgage and initial all the pages is a different pen then the note. its bad. but thats not all the note is a rubber stamp which i heard is OK? of joan m mills, but there is no date. assignments have to be from a to b to c to d then back to a for foreclosure. if the assignments are not there there is a broken chain of title. now there is another missed step by the bank i heard to day and depends on your state. that when the banks were bussy telling us not pay our mortgages to apply for hamp loan the REMIC contract states that when we missed 2-3 payments we were suppose to get an “acceleration” letter. if this was not sent out they broke the REMIC contract. remember we were all applying for Hamp loans. we were all in review but the file moved, paper work lost then dual tracked. wow

    • First, the need for a – b – c – d assignments only applies to loans that have been securitized. Do you know if yours was? There is no a at the end of the chain. Furthermore, not all endorsements will necessarily appear on the note, often blank endorsements will be used. I think you might mean RESPA instead of REMIC (It isnt REMIC in any case, which refers to investment requirements of mortgage securities), but an “acceleration” letter merely is a letter states you are in default and if you don’t immediately pay what you owe, they will begin foreclosure after some set period of time your state requires. I don’t know what
      Hawaii’s prescribed notice period is, perhaps 30 days, for example. If you think they have altered the note, do you have your copy of the original? Unfortunately, the burden will be on you to prove any alterations, which would require obtaining expert testimony. Good luck, I hope you have an attorney. The courts are not easily swayed by chain-of-title or lack of standing arguments. If they were, the banks would be settling most of their cases out of court.

      • Lulu C – you are so right. The courts are either incapable of thoroughly understanding the issues or worse, there is someone giving them orders that thinks eliminating mortgaged housing will actually bring back investors or the unthinkable …are they are on the take…? The real investigation needs to focus on the judiciary. We’ve had numerous reports that judges are sharing strategies on how to defeat the homeowner. The big question is why?!

  5. Lulu C.- I’m sure you are right. I had judge Apo spend 5 minutes to review a case he had never seen before. He didn’t even know I had legal representation. He took a 5 minute recess to review 30 hrs. of work, 300 pages of case law. I’m sure he made a phone call. Came back and ruled against me. At least the judge in the higher court saw the merits of my case an denied the motion to dismiss. There is a courageous judges left. Thank you Honorable Judge Ayabe.
    http://one-west-bank.pissedconsumer.com/one-west-bank-denied-motion-to-dismiss-20111126277399.html

    • There are good Judges in Hawaii – it just shouldn’t cost the homeowner in all those legal fees to motion for reconsideration or appeal to reach an equitable, honest, legal conclusion. Judges that honestly do not understand securitization and all the ramifications of the Wall Street fraud should not be deciding these cases. In fact, they should have to take a test in order to sit on the bench for these cases. We need a foreclosure court with astute judges willing to research deeper than the surface decisions handed out by average lawyer-to-judge bench sitters. This is an extremely specialized area and takes a high IQ to comprehend the subject matter, apply Constitutional law as well as how the application of law from other states, like New York and Delaware affect the documents. Fraud is fraud, void is void, but if you are playing cards or golf with the bankers or your boss is – it may be more difficult to see.

  6. Please read about MA Essex County Register of Deeds, John O’Brien, and his fight against the banksters’ fraud, MERS and robosigning. We can do this together, and we shouldn’t stop until the responsible for this biggest crime and ponzi scheme are brought to justice, so they can never ever do this again!

    O’Brien:”When you enter my registry, you see a sign stating, “The deeds tell the story.”
    Before the big banks took it upon themselves to corrupt the land recordation system, the deeds used to tell a happy story — one in which people purchased a home and lived “the American Dream.” Today, however, they tell a story of greed, fraud and forgery.
    By now, everyone knows what I have been doing over the past two years to expose and stop the schemes by Mortgage Electronic Recording Systems Inc. and its shareholder banks. The accuracy and integrity of the land records in my registry are of the upmost importance to me.”
    http://boston67.blog.com/peoples-hero/

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  9. On February 2nd 2012, Occupy Wall Street – Maui submitted, through our attorney, a formal request to the Bureau of Conveyances to undertake immediately a forensic audit of documents filed with the Bureau. The intent was to seek evidence of widespread fraud and clouded titles such as have been uncovered on the Mainland, and which now are coming to the attention of the Legislature. The request was also copied to the Attorney General. To date we have received no reply or acknowledgement. So much for the existing mechanisms.

  10. As I found out after calling the Bureau of Conveyances over a year ago, they do not check for errors, they just register what they are given.

    But all they have for my mortgage is Countrywide.
    There is no transfer or assignment to BONY as the security my loan is supposed to be in requires, and what good is the BOC if the information recorded is false?

    • Marcy,
      Unfortunately, most states do not require that mortgage assignments be recorded unless a foreclosure suit is filed. Your state statutes determine if recording is required. Typically the original lien is recorded to establish the lien as first or senior priority (established by date filed), i.e. first to be paid off if there is more than one lien, e.g. you take out a home equity loan.

      • Hawaii is one of the few states that does require recordation if you want to be protected – because who ever files first in Hawaii wins. If Marcy wanted you to take a mortgage on her property now and you filed recordation before the trust, the lawyers tell me if the originator was no longer able to produce the endorsed chain of title – your mortgage would trump anything that was filed after. Meaning, if it is in a trust and the trust hasn’t filed and another mortgage goes on the property – the trust is SOL.

        Haw. Rev. Stat. § 502-83 : Hawaii Statutes – Section 502-83: Effect of not recording deeds, leases, etc.
        All deeds, leases for a term of more than one year, mortgages of any interest in real estate, or other conveyances of real estate within the State, shall be recorded in the bureau of conveyances. Every such conveyance not so recorded is void as against any subsequent purchaser, lessee, or mortgagee, in good faith and for a valuable consideration, not having actual notice of the conveyance of the same real estate, or any portion thereof, or interest therein, whose conveyance is first duly recorded. [CC 1859, §1262; RL 1925, §3170; RL 1935, §5156; RL 1945, §12756; RL 1955, §343-49; am L 1963, c 83, §6; HRS §502-83]
        Law Journals and Reviews

        Later mortgagee having actual notice of earlier mortgage is not entitled to priority merely because earlier mortgage omitted page and book references required by §§502-33 and 506-4. Haw Supp, 4 HBJ, Nov 1966, at 30.

      • You should know that of course they can come up with proof of chain of title……….. one way or another. Why, I believe they even have companies that specialize in such things. 😉 And doesn’t the mortgage contract the borrower signs require notifying the lender before taking out further mortgages? I think mine does, and its a standard Fannie/Freddie contract.

        Do lenders normally file recordings for all transfers in Hawaii? I know in most states they aren’t recorded (hence all the lawsuits seeking unpaid recording fees) which tends to make me think it doesn’t often pose a problem in the real world. The trust PSA’s typically only require mortgage assignments to be in “recordable” form. In my state, except for the small lenders, they were never even transferred into MERS in the land records, they are almost always still recorded with the originating broker unless they’ve been refinanced/satisfied/foreclosure initiated.

        Did the Senate Resolution get passed?

      • Most states require filing… It’s the only way to track land records. No need for notifcation of the other mortgagees. However, there may be an accerlation clause. In the case of the trusts, they are governed by NY law (or in some cases DE)… but NY trust law say late assignments to a REMIC are void.

        Yes, the resolution passed… Yea.

      • Congratulations on the resolution! Our local county recorder and state’s attorney filed suit recently to get the banks to come in and sort out our land records. You may well have heard about it, our local clerk of deeds is Jeff Thigpen here in NC. He’s already found thousands of fraudulent “robosigned” signatures, primarily on satisfactions of mortgages since we use deeds of trust which must be signed by NC attorneys……. though deeds of trust are filed by servicers of current assignee. I’m aware of NY trust law but as you’ve pointed out, our judges are not so aware, or if they are, they don’t seem to deem it relevant in foreclosure cases. Successful cases brought by homeowners have indeed been rare, almost non-existent.

        Jeff has land records for our county dating back to the 1700’s. it’s a shame that they have become such a mess over the last decade or so. I am not an advocate of free houses for people who took out mortgages. However, I also am not an advocate for allowing lenders to take somebody’s home without following the rule of law that has been in place for centuries. When I pay off my mortgage, as does everyone else who has faithfully made payments and followed their contracts, I deserve to be able to get clean title to my property. A piece of paper signed by “Linda Green”, without returning the promissory note, as has become common practice, is not acceptable. Forgery is a felony and if the lenders continue to break the law, even despite repeated agreements not to, and they are continuing, it is long past time to start prosecuting. And recently I notified an attorney on a case being heard in the appellate courts in a judicial state that was being brought by the wrong plaintiff, it was a fluke that I happened to run across a case by the same trust in another state (the borrower won his case anyways…. but if the lender happens to refile……). Chase had sold their trustee business to BNY Mellon on the trust back in 2007. Lenders don’t even know whose loans they are representing. They don’t have the necessary documents nor do they have the necessary staff to process the foreclosures.

        Keep up the good work, DeadlyClear. Thanks for doing your part to get the word out. Educating people as to what is going on is key to bringing about change. And great job on getting the legislation passed in Hawaii!

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