By Sydney Sullivan
PART I – CLUELESS KANGAROO
We see all sorts of cases in foreclosure defense and just as many judicial personalities… goofy decisions, irresponsible and / or clueless judges but this one takes the cake! You would think that if you’re going to have your case heard by a trial judge – that he would be required to have some knowledge on the subject, right? Apparently, not in Hawaii’s Second Circuit Court.
A few years ago it appeared that many judges were just not up to speed on the foreclosure scheme, but lately it seems like there has to be a higher ilk that commands lower court to squash the homeowner and if they can afford to appeal, maybe then they’ll be worthy of some justice. Otherwise, presented with the evidence, acknowledging the bad paperwork and still ruling against the homeowner would be crazy or corrupt… or maybe both. This appears to be a case that would certainly seem to fit that synopsis.
Daneford and Ellareen Wright saved all their lives to build a modest home and small cottage where their three daughters and their families could live and keep the Ohana together on Maui, Hawaii. It was a dream that came true in 2005 and New Century provided a mortgage for the Wrights. The financial crisis significantly affected the 99% and in 2009, as responsible homeowners, Daneford and Ellareen applied for the much publicized HAMP modification scam. Like millions of other American families, the Wrights did not want to miss payments – but they were told by America’s Servicing Company, another front for Wells Fargo, that in order to qualify they had to miss 3-4 payments… and that’s where it all started.
In one of their many conversations with Wells Fargo, one of the servicer representatives slipped and said that Lehman Brothers was the investor. As Daneford began to research, he found out New Century Mortgage Corporation had filed bankruptcy on April 2, 2007 (2 years earlier) but he had never received any notification. Daneford then contacted the New Century bankruptcy trustee who informed him that his loan was sold to Lehman Brothers Bank, FSB on March 22, 2006. The bankruptcy trustee and the bankruptcy court provided him authenticated files, a court order and affidavit to substantiate the sale.
But Wells Fargo was not servicing the loan for Lehman Brothers Bank, FSB and Lehman Brothers Bank’s parent corporation, Lehman Brothers Holdings, Inc. fell into bankruptcy in September 2008 (remember… they somewhat caused or are attributed with the financial crash). No, Wells Fargo doesn’t have anything to do with Lehman Brothers… nope… they claim they are servicing the Wright’s loan for US Bank National, as trustee for US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST, 2006-NC1 which was actually the “Issuing Entity” (meaning it issued certificates to investors in 2006 as part of the securitization scheme); but, the legal name of the securitized trust recorded with the Securities and Exchange Commission is STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-NC1. Is it just picky semantics, an intentional mistake, or is it something even more sinister?
In August of 2009, and Wells Fargo swears to this – the STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST, 2006-NC1 received the mortgage and the note for the securitized REMIC trust, governed by New York law, that did not even exist until June 1, 2006 and closed on June 22, 2006 – from (drum roll please….) New Century Mortgage Corporation – who, by 2009, had been liquidated in bankruptcy and where the bankruptcy trustee and bankruptcy judge had ordered that the Wright loan had been sold 3 years earlier to Lehman Brothers Bank, FSB.
The Wrights, after several rather dubious attorneys, ended up Pro Se in foreclosure, got the US Bank as Trustee’s summary judgment motion voided and finally went to trial.
Wright provides Judge Peter T. Cahill with his New Century Mortgage evidence and an affidavit from John O’Brien, Register of Deeds for the Essex Southern District in Massachusetts (and whose findings led to several featured segments on 60 Minutes) who created the document specifically for Wright after inspecting the Wells Fargo documents indicating these are known robo-signers. How does an honest or intelligent judge jump over this evidence?
Judge Cahill responds to Wright while making his decision after a 2-day private trial:
“The battle you have fought has been fought. There was ample grounds for you to challenge what happened in this matter on the notice and what occurred with the United States of America bringing an action that resulted in a multi-billion dollar settlement. Okay. That was brought. You had that opportunity to bring that in and to challenge what Wells Fargo was doing with respect to your Note and your mortgage. Not nationwide. Because even with the robo-signers, even the affidavit that is now in evidence, the case that just came down talks about, people make this claim all the time about robo-signers, and they go off onto the Internet and they get all these documents. And what does that do? It does nothing.
Because you have to prove, and the burden is yours, that that particular issue of robo-signing applied to your particular document. In the absence of that, you have proven nothing other than to say, well, they’re a robo-signer. They may be a child molester but what does that have to do? You have to prove that that particular issue applies to this particular circumstance.” [emphasis highlighted]
Okay, somebody has a draw a line in the sand here. 49 states in America had their Attorneys General file a Complaint against Wells Fargo and several other servicers for dirty, fraudulent dealings and albeit the settlement was a pittance – there was still a Consent Judgment and $25 Billion Dollars – for bad business practices and robo-signing!
Should every homeowner with these infamous names be forced to expend thousands of dollars to re-depose these robo-signers over and over again? Let’s face it, one robo deposition says it all – “yes, we robo-signed thousands upon thousands of documents every day…”
Only a simpleton would think that this was the one case that wasn’t robo-signed. In fact, if there has been any deposition to the contrary where the Robo says – “well, some of these were not robo-signed…” please, please send it to us! Or, Judge – be fair and make the other side produce it! $25 Billion dollar$ says so!
Actually, in Hawaii and New York there is a statute (Hawaii’s is HRS §667-17) where the foreclosure attorneys are mandated to supply an affidavit stating that the attorney is affirming that he has investigated all the documents for robo-signing and that they are not questionable. It would appear the robo-burden is on the foreclosure attorneys, yeah? The attorney affirmation is actually formatted inside the statute and is required to have the following statement:
“Note: During and after August 2010, numerous and widespread insufficiencies in foreclosure filings in various courts around the nation were reported by major mortgage lenders and other authorities, including failure to review documents and files to establish standing and other foreclosure requisites; filing of notarized affidavits that falsely attest to such review and to other critical facts in the foreclosure process; and “robosignature” of documents.”
In the Wright case, when the Wrights motioned and requested that Judge Cahill enforce the statute the Judge denied their motions and said: “…maybe it’s not a hundred percent in compliance, but it’s there. It’s there. This isn’t about the lawyers.”
While judges might not particularly like a statute – only when it is vague or ambiguous does a statute of law give way for a court to create his own interpretation. “Text and tradition” is a phrase that fills Justice Scalia’s opinions.
Judges are to be governed only by the “text and tradition […],” not by their “intellectual, moral, and personal perceptions.” As he remarked in his concurring opinion in Schad v. Arizona: “[W]hen judges test their individual notions of ‘fairness’ against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.”
To the layman, HRS §667-17 does not appear to be vague nor ambiguous – and opposing counsel never argued that it was. To say, “not a hundred percent in compliance” is like “being a little bit pregnant”… You either are or you’re not!
Gary Dubin and the Dubin Law Offices have an Appearance in the Wright case. Mr. Dubin will be handling the Wrights’ appeal. This saga is not over –
THERE’S MORE! Stay Tuned for Part II – The Judge Acknowledges the Wrights’ Social Security Numbers are in the Securitized Collateral Transaction
Appeals cost money and this case is certainly worth defending.
Please Help the Wright Ohana Save Their Home: CLICK HERE