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Monday, August 10, 2009

Another Court Doles Out JUSTICE


This appeared in

IT IS AS MUST READ and as such I will reprint the entire article here.

Editor's Note: The bold and red type emphasis is mine and is not contained in the original piece.

In a stunning victory for borrowers, a New Jersey court has dismissed a foreclosure action filed against the borrowers by Deutsche Bank Trust Company America as alleged trustee for a securitized mortgage loan trust after Deutsche Bank willfully, and despite the entry of three (3) separate court orders, refused to produce documents demanded by the borrowers which included documents setting forth the identity of the true owner and holder of the Note and mortgage, the complete chain of title to ownership of the note and mortgage, payment application histories, and documents as to the securitized mortgage loan trust. The Court had given Deutsche Bank multiple opportunities and extensions of time to produce the documents, but Deutsche Bank continually refused to produce any of the documents requested, resulting in the dismissal of Deutsche Bank’s foreclosure action. The Court also ruled that Deutsche Bank is not permitted to re-file any foreclosure action until it is prepared to produce ALL (this highlight n bold contained in the original) of the subject discovery.

FDN attorney Jeff Barnes, Esq. represented the borrowers, assisted by local New Jersey counsel.

W. J. Barnes, P.A. has numerous other cases pending where similar discovery requests have been sent to Deutsche Bank, none of which have been complied with to date. As such, additional requests for sanctions, including dismissal, are expected to be filed in these cases.

Deutsche Bank was also the subject of a recent ruling in a case in New York where the Court denied Deutsche Bank’s Motion for Summary Judgment, finding that a purported assignment from MERS to Deutsche Bank was defective and that Deutsche Bank, with an invalid assignment of the mortgage and note from MERS, lacked standing to foreclose. Significant in the ruling was the court’s observation and question as to why, 142 days after the borrower was claimed to be in default, that MERS would assign a “toxic” loan to Deutsche Bank. The court also required a satisfactory explanation, by sworn Affidavit, from an officer of the securitized trust as to why, in the middle of “our national subprime mortgage financial crisis”, Deutsche Bank would purchase from MERS, as alleged “nominee”, a nonperforming loan. The court further inquired as to whether Deutsche Bank violated a corporate fiduciary duty to the note holders of the securitized mortgage loan trust with the purchase of a loan that had defaulted 142 days prior to its assignment from MERS to the trust.

It appears that Deutsche Bank may have done so to take advantage of one or more “credit enhancements” inside of the securitized mortgage loan trust which pay benefits upon declaration of default. These credit enhancements are extremely complicated and multi-layered, and are required by law in connection with the issuance and sale of the mortgage-backed securities “backed” by the trust.

The assignment of the mortgage and note to the securitized trust, which were already in default well in advance of the assignment, would permit Deutsche Bank to both realize a profit through payment of credit enhancement benefits (which effect a pay down of the claimed “default”) while simultaneously permitting Deutsche Bank to institute a foreclosure, resulting in a “double dip” for Deutsche Bank. This is, of course, (I have to enlarge this one) illegal, but unless competent counsel raises the issue, it goes unnoticed and Deutsche Bank, like so many other foreclosing parties, winds up (I have to enlarge this one) stealing the borrowers’ property and getting paid for doing it.

Jeff Barnes, Esq.

Attorney Barnes has pinpointed what this blog along with TheForeclosureDetonator and TheForeclosureDetonatorFORUM - which I also publish - has been attempting to alert the public to. The injustice of our justice system when it comes to the foreclosure crisis.

As I always say, 'TWO WRONGS DON'T MAKE A RIGHT" and "the laws are the laws for EVERYONE".

Also you must note that Deutsche Bank was one of the major sub prime lenders here in this country. In other words, they accepted applications directly and from third party originators (mortgage brokers), approved these sub prime applications, funded the deal, SOLD THE MORTGAGE to a securitizer - getting their entire investment back - and made billions of dollars doing so.

Now, acting as a "Trustee" for the many securities they sold to, they are not only double dipping - as the article above indicates - they are "triple dipping".

Few judges around the country are dispensing the law according to the law when it comes to foreclosures. In fact, there is a judge in Florida who operates under the opinion that the borrowers "owe" the money and as long as the Plaintiff (the party foreclosing) can produce the original note then he will issue the foreclosure regardless of proof of ownership. In other words, he believes that posession is not only 9/10ths of the law - as the old saying goes - but is in fact 100% of the law.

The Produce the Note defense that has become popular of late is not enough. Just because I have the original note does not mean I own it. There must be a paper trail of ownership - called "chain of title". Documented paperwork of the passing of ownership from one to another. It is hard to believe that when it comes to transactions as large as a home mortgage that such documentation is not there and that Plaintiff's such as Deutsche Bank can merely say they own it offering no proof and that is sufficient for a "court of law".

The banks who created this problem and the worldwide economic crisis have figured out a way to perpetuate the crisis while continuing to make exorbitant profits.

I congratulate Attorney Barnes and the judge in New Jersey who ruled according to the law. All who are in foreclosure and their attorneys - if they have one - should pursue this proper and lawful defense. THE LAW IS THE LAW FOR EVERYONE and it is unlawful to dispense the law selectively.


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