Honolulu’s DUBIN LAW FIRM has successfully halted 2 more Wells Fargo eviction actions in Hawaii. Hawaii neighbor island judges are catching on as the Dubin posse rounds up another load of bandits trying to drive off with the ol’ stagecoach.
Both of the WELLS FARGO BANK, N.A. as Trustee cases were originally OPTION ONE mortgages that appear to have fabricated assignments to securitized trusts well-after the trusts had closed.
Unlike revocable family trusts – securitized trusts are tax shelters (aka REMIC) for large volumes of investment money like state pension and retirement funds and are called static trusts meaning that whatever assets make up the trust MUST be sold, assigned, transferred to the trust on or before its closing date (with limited extensions – and a lot of paperwork). Even with extensions – attorneys say it is apparently unlawful to try to sneak the asset into the trust 2, 3, 4, 5, 6 years later.
Wells Fargo knows better than to file belated assignments – so do the local attorneys doing their bidding. New York trust law has been discussed in-depth by the United States Congressional Oversight Panel. This merits repeating from the November 16, 2010 Congressional Oversight Panel’s (COP) report titled “Examining the Consequences of Mortgage Irregularities for Financial Stability and Foreclosure Mitigation” including references to the trust controlling documents and New York trust law. See the COP testimony at page 19:
“[I]n order to convey good title into the trust and provide the trust with both good title to the collateral and the income from the mortgages, each transfer in this process required particular steps. Most PSAs are governed by New York law and create trusts governed by New York law. New York trust law requires strict compliance with the trust documents; any transaction by the trust that is in contravention of the trust documents is void, meaning that the transfer cannot actually take place as a matter of law. Therefore, if the transfer for the notes and mortgages did not comply with the PSA, the transfer would be void, and the assets would not have been transferred to the trust. Moreover, in many cases the assets could not now be transferred to the trust. PSAs generally require that the loans transferred to the trust not be in default, which would prevent the transfer of any non-performing loans to the trust now. Furthermore, PSAs frequently have timeliness requirements regarding the transfer in order to ensure that the trusts qualify for favored tax treatment.”
The Tehiva family on Maui has been discussed several times on DeadlyClear and sends their heart felt thanks to everyone for their help and their prayers. It paid off with the blessing of a very astute Judge. It takes a considerably high IQ to grasp the securitization scheme and start to see the Ponzi.
Honorable Eric G. Romanchak GRANTED Tehiva’s Motion to Set Supersedeas Bond Amount for a Stay Pending Appeal stating that they could pay $2,286.56 a month to the Clerk of the District Court of the Second Circuit, Hana Division, and the payments are to be held by the Clerk in a Court-supervised bond account for the pendency of the Appeal or until further order of the Court. AWESOME!
The Hensleys on Kaua’i also originally had an Option One loan. Option One eventually became “Sand Canyon” and was under the control of Dale M. Sugimoto, its President. Mr. Sugimoto has stated in a SWORN declaration that Sand Canyon/Option One sold its business to WL Ross on April 30, 2008 and no longer held any real estate or servicing rights and that was stated over a year before this fabricated assignment of mortgage.
The Hensley assignment was fabricated on Oct. 26, 2009. What sneaky a trick, yeah?
It is obvious that the path of the Hensley mortgage loan did not follow the alleged trust instructions – not just because it was too late – but because the Securities and Exchange Commission documents on file for the trust say that “On the Closing Date, the Depositor will transfer to the Trust all of its right, title and interest in and to each Mortgage Loan, the related mortgage note …” Option One Mortgage Acceptance Corporation is the Depositor for the WELLS FARGO BANK, N.A. AS TRUSTEE FOR OPTION ONE MORTGAGE LOAN TRUST 2006-1 ASSET-BASED CERTIFICATES, SERIES 2006-1 …NOT Sand Canyon.
This means Sand Canyon isn’t suppose to transfer the loan directly to the trust and according to the securitization patents there is a good reason for this – bankruptcy remoteness. The names all sound the same but they are separate corporations – with good reason. Double / Triple sneaky, yeah?
What makes the Hensley case and so many others like it interesting, are the questionable actions of the bank’s foreclosure mill attorneys like Rush Moore who put together the Assignments, Notice of Foreclosures and Affidavits of Foreclosure (filed after a non-judicial foreclosure proceeding). In this case, attorney for the [alleged] mortgagee, Walter Beh II, signs a sworn and notarized affidavit of foreclosure and fails to include a copy of the much too late assignment and/or a copy of the note where there should be at least some endorsements.
Walter, ya had to see these documents in the file and connect the dots when you made your affidavit – unless of course you were robo-signing, what in the world were you thinking?! You’d risk your license for a lousy bank?
It appears Walter is either slick as a snake oil salesman or dumb as a stump… or they just think the judges are. In any case, it’s about time these fabricating enablers were called before the courts and the bar on ethics. You are invited to take the Poll at the end of the post.
Unfortunately for Mr. Beh and his client Wells Fargo, the Rush Moore associate appeared before another well-informed judge. Kaua`i’s Honorable Kathleen N. A. Watanabe who also ordered in favor of the Hensleys stating:
“THE COURT, having fully considered the written submissions of the parties, having heard the oral arguments of counsel, and having considered the entire record and files in this ejectment action, hereby GRANTS the aforementioned motion as follows:
1. Pursuant to Rule 62(d) of the Hawaii Rules of Civil Procedure, the December 2, 2011 Writ of Ejectment is hereby STAYED during the pendency of Defendants’ appeal.
2. Meanwhile, that stay is conditioned upon Defendants’ posting of a supersedeas bond, to be paid in monthly installments of $2,500.00, which amount the Court finds is equal to the current fair rental value of the subject property located at 5029 Emmalani Drive, Princeville, Hawaii 96722.”
These 2 instances of stay pending appeals with reasonable monthly payments made to the courts are the precise remedy to begin to stabilize the economy. These are smart moves by intelligent judges that can see from the pleadings that there are some obvious flaws. It gives everyone time to reflect – the banks, the homeowners, the courts and the legislators. These foreclosures are not slam dunks anymore. It’s no wonder that other courts have started awarding huge damages like the $3.1 MILLION recently in Louisiana.
Cheers! Now the real lawyering begins and this is where the DUBIN LAW FIRM excels. Attorneys Frederick J. Arensmeyer and Gary Dubin, in addition to a top-notch staff of A+ lawyers, put together arguments for the courts so that they may better understand what happened as these so-called mortgages morphed into securities and were traded around the world like baseball cards – not necessarily following the rules and sometimes possibly breaking or bending the law.