Tag Archives: Foreclosure

SIMULATION OF LEGAL PROCESS: Two Faces of Attorney Fraud in Florida Foreclosures (Plaintiff’s and Defendant’s)—but under Rule 1.540(b)—-IT AIN’T OVER TIL IT’S OVER!

In Robert S. Tripka’s appeal to the Second District Court of Appeal, we see evidence from a case in which one of the original Florida Mortgage Defense Mavens, April Carrie Charney, has been involved that the members of the Financial Plaintiff’s bar in Florida (e.g. Linda Spaulding White of Broad & Cassell LLP) will stop at nothing to hide the bank’s financial malfeasance in securitizing notes and thereby obliterating them, while trying to preserve the facade of law—as if the Common Law, Constitution, and Uniform Commercial Code were still followed and operating as living systems in Florida—which they are not.  But a plethora of cases decided (and receiving hardly any publicity) in the past five years show that there are many Florida Judges with integrity who are doing their best to stop the bleeding and degradation of the law…  Deutsche Bank National Trust Company no more has standing to foreclose on Tripka’s house than whatever Saudi Prince or “Equity Fund” actually has a fractionalized interest in a mortgage note which has been sold and therefore paid…

Robert S. Tripka’s Motion for Written Opinion, Rehearing or Rehearing En Banc and Certification on Appeal to 2nd DCA October 23

SIMULATED LITIGATION BY A DEFENSE ATTORNEY COLLABORATING WITH DEUTSCHE BANK NATIONAL TRUST—At the other end of Florida and on the other side of foreclosure  litigation fraud issues, Aluisio Barbosa, a severely disabled person, has filed a Complaint for Equitable Bill of Review of his Foreclosure under Florida Rule 1.540(b) in Broward County (Fort Lauderdale) alleging Extrinsic Fraud in William Jeffrey Barnes’ intention and motivation… at every step of the defense which he and his wife paid for….with this very arrogant (and treacherous) high-profile and high priced attorney….  Plaintiff Aluisio Barbosa has alleged (and credibly documented) that William Jeffrey (aka “Jeff”) Barnes intentionally perverted and twisted the defense of his and his wife’s case… by collusion and cooperation with the Attorneys’ for Deutsche Bank National Trust Company and one of these film-flam trusts…. the GSAA HOME EQUITY TRUST 2006-16, which exists ONLY as a vehicle for securitization and hence for fraud….

Aluisio Barbosa & Una Proenca Rule 1.540(b) 92 Page Complaint for Equitable Bill of Relief

Do Florida Courts Flaunt the Automatic Stay in Bankruptcy? When they do so, are they acting in complete absence of jurisdiction?

Anyone even peripherally involved in Florida real estate matters must realize that the Florida Courts are engaged by the Banks, perhaps as their direct servants and agents, not merely to enforce but to expedite and simplify mortgage foreclosures and property seizures.  The courts and their clerks cut every corner in order to do so. Today I am writing to solicit comments and gather information:

How many of you, out there, believe that the Florida Courts flaunt the automatic stay in Bankruptcy whenever possible by use of maneuvers or devices which are not quite consistent with the letter and spirit of Federal Law?  To all who may have such information and care to share, please send me your stories of how the Florida Circuit Courts or District Courts of Appeal have ignored or disregarding notices of filing bankruptcy and what reasons were given?  

For example, if a person has an interest in property goes bankrupt, but that person is not the primary target of a mortgage foreclosure suit, is it proper for a State Court to ignore the automatic stay in bankruptcy?  Is the automatic stay afforded by Federal Law a substantive due process right in property or is it merely a procedural due process right?

If State Court Judges take action when the automatic stay is in place, and should be applied to protect certain property, are these judges acting in the Complete Absence of Jurisdiction or merely “in excess of their jurisdiction?”  

If State Judges authorize takings of property during any pending automatic stay in bankruptcy related to property of a debtor’s estate, have these judges waived all claims to judicial immunity for takings of private property without due process of law?  Are the judges then personally liable for violations of civil rights to liberty and property interests?

As I have written so often as to become boring (to some), the credit-financing-mortgage crisis, leading to so many evictions and rental properties filling up, all directly arises from the modern U.S. Government’s/Globalist Banking Economy’s 166 year long crusade to implement world communism (abolition of individual rights in private property, and all other related individual rights, such as “life, liberty, and the pursuit of happiness”).  

Notwithstanding the irony, in some unsophisticated eyes, of international banking being the agents for and providing the means and mechanisms by which international communism matures and manifests itself fully, the government and “government authorized” bankers of our time are absolutely involved in implementing, line-by-line, letter-by-letter, the plan first outlined in the February 1848 Communist Manifesto published that month by Karl Marx and F. Engels in London.

 

The Inadvertent Message of Gomes v. Countrywide: File Bankruptcy First—Shift the Burden of Proof in Foreclosure, all debt collection cases

2011 Comm. Fin. News. 18
Commercial Finance Newsletter
Professor Dan Schechtera
February 28, 2011
Borrower Cannot File Suit to Determine Whether MERS Has Authority to Commence Foreclosure, and Trust Deed Expressly Authorized MERS to Do So. [Gomes v. Countrywide Home Loans, Inc.,(Cal.App.).]
A California appellate court has held that a borrower questioning the authority of MERS to commence a nonjudicial foreclosure cannot file suit to determine whether MERS has the authority to do so; in addition, the deed of trust executed by the borrower expressly authorized MERS to conduct the foreclosure. [Gomes v. Countrywide Home Loans, Inc., 2011 WL 566737 (Cal.App. 4th Dist. 2011).]
Facts
A California borrower executed a deed of trust, in which Mortgage Electronic Registration Systems (MERS) was designated as the nominee for the lender. Following the borrower’s default, an agent acting on behalf of MERS initiated nonjudicial foreclosure proceedings. The borrower filed suit challenging the authority of MERS to act on behalf of the underlying owner of the note and deed of trust. The trial court sustained the defendants’ demurrer, and the court of appeal affirmed.
Reasoning
The court held that the borrower had no factual basis for believing that MERS lacked authority to act on behalf of the beneficial owner of the note and deed of trust, and there was no statute permitting a private action seeking to determine whether MERS had such authority. As a fallback, the court also held that MERS did, indeed, have the authority to initiate a foreclosure, under the express terms of the deed of trust.
In holding that MERS had the authority to conduct the foreclosure, the court declined to follow Landmark Nat. Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), holding that MERS had no standing to intervene in a foreclosure case (and, by implication, that MERS was simply irrelevant to the foreclosure process). The court noted that under Cal. Civ. Code § 2924(a)(1), “[t]he trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file… a notice of default.” Therefore, since MERS was an “authorized agent,” it necessarily acted properly in commencing the foreclosure.
Author’s Comment
By holding that the borrower could not even file suit in state court in order to determine whether the proper party had commenced the foreclosure, the court has sent a clear (and perhaps inadvertent) message to borrowers and their attorney’s: instead of filing suit in state court, file a bankruptcy petition. That shifts the burden to the creditor, who will have to file a motion for relief from stay in the bankruptcy court and will have to establish its right to foreclose as part of that motion. Unlike the California state courts, the California bankruptcy courts have been critical of poorly documented mortgage transactions and sloppily conducted foreclosure proceedings.
As to the substantive issue, i.e., whether MERS really has the authority to act on behalf of the lender, the case law is decidedly mixed. The cases in California tend to be more sympathetic to MERS, while the cases in much of the rest of the nation are much less deferential to MERS. For discussions of some of those cases, see:
  • — 2010 Comm. Fin. News. 51, Foreclosure Is Valid Because MERS Has Power to Designate New Trustee Under Deed of Trust, Even Though It Holds No Interest in Underlying Note.
  • — 2009 Comm. Fin. News. 103, Assignee of Mortgage Lacks Standing to Foreclose Because Assignee Failed to Show That MERS Assigned Underlying Promissory Note, Along with Mortgage.
  • — 2009 Comm. Fin. News. 59, Assignees of Mortgages Cannot Enforce Unendorsed Notes in Their Possession Because MERS Documentation Does Not Expressly Authorize Assignment of Notes.
  • — 2009 Comm. Fin. News. 57, Assignee in Possession of Mortgage Note May Not Enforce It Because Note Is Not Endorsed to Assignee.
  • — 2008 Comm. Fin. News. 104, Mortgagee May Not Obtain Relief from Automatic Stay in Order to Foreclose When Necessary Evidence Is Supplied by Low-Level Clerk Without Personal Knowledge of Underlying Facts.
  • — 2008 Comm. Fin. News. 95, Mortgage Assignee’s Failure to Record Assignment Does Not Empower Mortgagor’s Trustee in Bankruptcy to Avoid Underlying Mortgage.
  • — 2008 Comm. Fin. News. 86, Mortgagee’s Agent May Not Foreclose if Agent Cannot Properly Trace Assignment of Mortgage from Original Lender to Assignee Pursuant to Securitization.
  • — 2007 Comm. Fin. News. 93, Mortgage Holder Seeking Relief from Automatic Stay in Order to Foreclose May Be Denied Relief for Failure to Establish Chain of Title from Loan Originator to Ultimate Assignee.

Copyright Thomson Reuters

Footnotes

These materials were written by Dan Schechter, Professor of Law at Loyola Law School, Los Angeles, California. The opinions expressed herein are solely those of Professor Schechter.
End of Document © 2011 Thomson Reuters. No claim to original U.S. Government Works.

Atten: Michael T. Pines, Please Call Lincoln for California, 310-300-4088, 949-276-1970, or 512-968-2666

One of the most interesting people on the foreclosure resistence scene over the past few years has been California Attorney Michael T. Pines.  Like the author of this blog, Mr. Pines is now no longer entitled (“active” or “licensed”) to practice law in the State of California.  His Complaint filed last year in the Northern District of California Michael T Pines’ NDCA Complaint for FDCPA-Wrongful Foreclosure 10-02622 Class Action was excellent and came closest to showing him a blood brother of mine as any (licensed or unlicensed) attorney’s or lawyer’s work I have ever read, as I have several times stated, but he abandoned it without much of a fight 09-27-2010 10-cv-02622-RS Case Status Report.  Since then, he has moved south into Ventura, Orange and San Diego counties where he has both preached and practiced civil disobedience.  I found this order (“prejudicial preliminary judgment”) on-line under Pines’ name at the California State Bar Website (http://members.calbar.ca.gov/courtDocs/11-TE-10948-1.pdf) concerning his suspension from practice by my dear old friends at the missnamed State Bar Court of California, (by the cognoscenti, it is more accurately called “The Star Chamber & Bar Court of California”).  

Just a couple of weeks ago (on June 11, 2011 at 9:07 PM—Can I recommend any attorney that is “on the cutting edge of the securitization issues” here in California?) on these blogs, I listed Pines as among the Attorneys “Blacklisted” by the Kokopelli Community Workshop.  I there repeated what some of my most admired allies (e.g. Catherine Bryan) had made by way of disparaging comments concerning Mr. Pines based on his clients’ complaints, and I am now very confused—I simply do not know what to think about Michael T. Pines.  Sometimes the radical approach is hopelessly ineffective in the short run, but necessary for the long-run, and after reading the learned Bar Court Judge’s summary and order, I believe that Michael T. Pines may be lacking in practical wisdom—a charge which has been repeatedly aimed at my own very quixotic self, soul, and career….

Pines’ Complaint filed and dismissed last year  expressed many thoughts near and dear to my heart (attached above).   As I stated on June 11, 2011, and even before that, I cannot understand why he gave up the fight (CAND-ECF-10-02622 Michael T Pines v Silverstein Docket 09-19-2010) and turned to what looks for all the world like a career of guerrilla warfare involving residential trespassing and burglary.  However, he and I now share at least in some regards—a lot in common.  In the State of Texas, one of the most despicable attorneys’ who ever lived (Michael P. Davis of Round Rock, Williamson County, Texas) accused me of living in a “parallel universe” where the U.S. Constitution controls all aspects of court procedure and jurisprudence *(Well, in fairness to myself, I only contend that the Constitution SHOULD control all aspects of court procedure and jurisprudence—I would be daft indeed if I thought I lived in a place where the Constitution DOES actually control or limit the government AT ALL).  

The State Bar’s accusations against Michael T. Pines, that he considers himself a modern day Henry David Thoreau engaging in Civil Disobedience by Walden Pond….  also suggest that he lives in that same parallel universe in which I have been alleged to reside.  So I find I suddenly have a lot of empathetic feelings and sympathy for Michael T. Pines—as one inhabitant of the parallel universe of “American Constitutional Supremacy” to another…. and accordingly…

In the spirit of “ET”, I would ask that Michael T. Pines call me at his earliest convenience so we can talk about the past, present, and future.  

Perhaps we should go Dragon-(or Shark) hunting together….. Not that I would ever harm a flesh-and-blood dragon nor any of the increasingly endangered sea-sharks, except in self-defense of course….. but spiritual poison-breathing dragons/sharks like Steven D. Silverstein… who seek to implement the final stages of perfecting the Communist Manifesto by the abolition of private property in land (as imported either from Russian Soviet or Maoist Communist Chinese origins and Nixon/Kissinger-led introduction to the United States) are a totally different matter….. those kinds of dragons/sharks have no heart or soul…. (As Renada Nadine March as repeatedly noted—Silverstein chooses the Shark for his own alter-ego in the iconography of his pins and ties—and the name of his company that took Renada’s home—Meglodon….)

As Dragons are described and named in German and Anglo-Saxon Silverstein is merely a really gross worm—Ein Grosser Wurm….

Kokopelli Community Workshop (Catherine Bryan’s) List of “Recommended Attorneys” in Southern California

I have to say I am NOT in the business of making attorney referrals. I am much more interested in “disbarring the entire profession” and thereby restoring free-market competition based on competence alone to the legal profession.  I submit that abolition of the Court-licensed “integrated” bar, abolition State Supreme Court issued law licenses, and allowing all people who care to educate themselves or obtain education formally to engage in the same freedom of speech, freedom of association, and free exercise of the right to petition as enjoyed by John Adams, Thomas Jefferson, James Madison, John Marshall, Roger Brooke Taney, Samuel Jones Tilden, and yes, even Abraham Lincoln.  I would thus like to restore robust freedom to think, create, and imagine the best ideals, rather than the most practical and politically effective expedients, to the actual practice of law and legal advocacy.  

But having been at least “roped into it” by publishing my response to one reader’s letter, earlier today, I feel obliged to publish my good friend Catherine Bryan’s Response and HER (Kokopelli Community Workshop’s) list of “Recommended Attorneys”.  But for the record, I have had NO personal contact, direct or indirect, with even a single one of the lawyers whose names are listed (at Catherine’s/ Kokopelli’s behest alone, without crosschecking or any other due diligence exercise) below, except as mentioned in my own article/blog-post earlier today.  

BUT ONCE MORE, WITH FEELING, LET ME MAKE THIS ONE THING VERY, VERY CLEAR:

I DO NOT RECOMMEND WORKING WITH LICENSED ATTORNEYS—I RECOMMEND RELIEVING THEM OF THEIR MONOPOLY STATUS, THEIR FAUX STATUS and TITLES OF NOBILITY “ESQUIRE” and “OFFICERS OF THE COURT” and ABOVE ALL I RECOMMEND, ADVOCATE, AND AS U.S. SENATOR WOULD FIGHT TO DESTROY FOREVER LAWYERS’ SPECIAL DEPENDENT RELATIONSHIP ON AND WITH THE JUDGES BEFORE WHOM THEY MUST APPEAR:

From:
catherine bryan <koldesigns@yahoo.com> writes: 


In my opinion, All the people Charles referenced below are even worse than the banksespecially  Micheal Pines and Dennis Russel who actively engage in publicity stunts to get their name in the news so that people turn to them for help . !

multiple complaints tell us  these attorneys all rake in big money and never do any effective work!
tell me more about any Paul Nguyen winning cases- please!

I have a pile of homeowner complaints on my desk from multiple homeowners say  they  were ripped off by Paul and Diane Beal and no good reports on either won of them.

Kokopelli Community Workshop foreclosure relief project (link) has recently received an enormous number of urgently requested legal referrals for victims of predatory lending who urgently require the services a qualified attorney.

There are currently around 1,000 foreclosures recorded each day in San Diego County alone and unfortunately good legal help for any reasonable cost is quite difficult to come by. Anyone interviewing an attorney should insist that the attorney in question provide a list of several cases they have actually won! Our ongoing investigation into wrongful attorney practices reveal that many attorneys who have wonderful predatory lending web-site but are really interested in acquiring your property and their real business is their real estate brokerage.

The sad news is a majority of attorneys charge hefty retainers and have never or seldom actually won a case or even assisted the homeowner to negotiate with their creditor. To make matters worse there any a number of people including attorneys selling quick fixes through filing commercial liens and other instant rescue systems, none of which work and all of which drain the homeowners pocket book. There seem to be far more predatory attorneys and predatory rescue scams than true remedy.

The bad news is there are a multitude of homeowners currently reporting that they are enticed into default by loss mitigation specialists who work for the servicer or the bank. The good news is some judges are considering loan mod fraud as valid grounds for taking affirmative action and in a few cases have found the bank instead of the homeowner to be at fault.
Anyone who can provide us with the name(s) an attorney(s) who have achieved settlement or won a trial against a foreclosing creditor in one case or more please provide us with case #, and contact information for our special list of attorneys who can actually provide remedy, in exchange for a retainer.

Kokopelli Workshop Project is actively involved in large analysis and statistical study of how judges review cases where homeowners pursue affirmative against banks for wrongful foreclosure and which cases settle out of court, and we study which cases actually win, and why. Here is our  list of qualified attorneys who have won or settled one or more predatory lending cases; and no complaints!

THEODORE E. BACON (CA Bar No. 115395)
tbacon(âAlvaradoSmith.com
SCOTiJ. STILMAN (CA Bar No. 120239)
sstilman(âAlvaradoSmith.com
NANETtE B. BARRGAN (CA Bar No. 240116)
nbarragan@AlvaradoSmith.com
AL V ARADOSMITH
A Professional Corporation
633 W. Fifth Street, Suite 1100
Los Angeles, CA 90071
Tel: (213) 229-2400
Fax: (213) 229-2499Law Offices of Kenneth Graham
(925) 932-0170
1575 Treat Blvd. #105, Walnut Creek,
California  website, www.elaws.com.
Attorney Barry Mills
3588 4th Ave
San Diego, CA 92103
(619) 295-5000

Attorney John E. Mortimer 

44489 Town Ctr Way #D-466
Palm Desert, California 92260

Phone: 1-951-330-0063


ALAN L. GERACI, ESQ.
Geraci & Lopez, Attorneys at Law (619) 231-3131
817 W San Marcos Blvd
San Marcos, CA 92078

Karen S. Spicker, SBN 127934 Doan Law Firm, LLP 2850 Pio Pico Drive, Suite D Carlsbad, CA 92008
(760) 450-3333
L. Quintana, Esq. (SBN 157291) and Victoria Carry, Esq. (SBN 256872) QUINTANA SARTE REYNARD LLP 101 W. Broadway Suite 1050, San Diego, CA 92101 Tel: 619.231.6655
ARBOGAST & BERNS LLP, Jeffrey K. Berns (SBN 131351), David M. Arbogast (SBN 167571) 6303 Owensmouth Avenue, 10th Floor, Woodland Hills, CA 91367-2263 Tel: 818.961.2000
Powell and Powell, Attorneys at Law
402 West Broadway, Suite 400
San Diego, CA 92101 (619) 232-6363 Office

To all this, William Daniels (teamworker@msn.com) would add:
Pines just got out of jail on bail and is trying to raise money for his case.
I heard that Paul Nguyen’s ‘win’ was because the bank defaulted and that was only temporary as they appealed and, last I heard, Paul is still fighting the case – they’ve had no other wins that I know of . . . 
To all this I would just like to reiterate that I expressed my reservations about Paul Nguyen and Michael T. Pines, but included direct PACER-derived links showing the actual history of their cases.  I now strongly suspect that EVERYTHING connected with A. Howard Matz’ Court in the Central District of California should be regarded with the UTMOST suspicion.  Chase Bank’s default in that case almost seemed, itself, to me to be engineered by Matz—the whole thing in Matz courts—and others—appears to be the effect of a what was called in the days of Josef Stalin’s USSR a “SHOW TRIAL”—what Joseph Zernik, Ph.D., has recently started calling “Simulated Litigation”—thus avoiding the ugly, but probably accurate, implied historical connection between Soviet Communist Practice in the 1920s-40s and the mortgage/foreclosure/eviction litigation now practiced throughout the United States, but especially in California and other Western States (even though it now appears it was invented in Massachusetts….almost exactly 100 years ago….)
Jennifer Lee wrote to after midnight on June 12, 2011 (Pentacost Sunday):
Thanks Charles
As for Paul Nguyen he stole 4 k from my mom and promised an adversarial complaint and never did it and I could give you a list of horrible things he did to her including a chapter 11 bankruptcy that he botched so badly and abandoned her when she had paid in full to him. He then told us he has 100 customers and can’t possibly help them all so he had to pick which ones he is going to let loose and he doesn’t care less if they loose and get evicted. He told us he chose us to loose as our case was more difficult and he doesn’t care. I just spoke to a lady I saw tonight who told me he did the same to her and many more people she knows and she has someone who is going to go after him for her. I was given advice of how to report him. I have been too busy but I really need to report him to the bar and judicial review. Don’t remember off hand the place.he is a con man. Diane beall was upset to hear what he did to us but she told me she was losing all her cases so she needed to learn from him and she needs money even though she didn’t want to be there and she was sick to watch what he did to mom. She tried to confront him for what he did to us and she got in trouble for it.

All the world’s a stage, and all the men and women merely players: but on that stage, are courtroom dramas sometimes pre-scripted to produce results and/or social effects? Do these scripts negate due process of law? A Northern California Example.

In the eight years since AAMES Vice-President Deborah S. Gershon in Los Angeles explained to me that AAMES loans could not be modified because they did not belong to AAMES…. strike that, in the 17 years since I first participated in the preparation of an SEC-acceptable registration statement for an MBO (Mortgage Backed Obligation, actually a Mortgage Bundled-Bond, in that case) IPO on Wall Street at Cadwalader, Wickersham, & Taft, I have been almost obsessed with trying to understand and undo the evil caused by securitized mortgages.  It’s a lonely obsession, like so many of my interests: from Wagnerian Opera, Gilbert & Sullivan’s operettas, Tom Lehrer’s and Weird Al Yankovich’s “comic pop-cultural folklore”, to the reconstruction of Proto-Indo-European Language, Culture, and Mythology, the calibration of the Maya and Christian calendars by and through archaeological stratigraphy and ceramic seriation, the comparative structural analysis of dual, tripartite, and quadripartite forms of religious and social organization, and then over to the comparative American graveyard organization and iconography of Colonial New England and the South, especially New Orleans, the detailed history of the Oracle at Delphi, the best approximation of Moses’ route through the Sinai Peninsula in Exodus. But of all my interests and obsessions, only securitized mortgages have become not merely a national but a worldwide crisis and obsession as well.   Since my happy days as a young (or at least a much younger) judicial extern clerk for Stephen Reinhardt (Ninth Circuit, Los Angeles) and later a judicial law clerk for Kenneth L. Ryskamp (Southern District of Florida, Miami & West Palm Beach), on the opposite coasts of America, since those days when I believed that Federal judges all worked late hours into the morning with their clerks sifting through pleadings and motions and agonized over the proper disposition of cases, never “pre-judged” anything, and that federal judges in particular were basically among the hardest working and most honorable members of society at large, never mind the much maligned legal profession, I have learned a lot and become very cynical.

Sadly, I have to say that I repeatedly, and with increasing frequency, see evidence that at least some federal judges either manipulate or fix cases, and that the putatively adversarial attorneys may sometimes participate in this process.   I have neither the time nor the energy to review all the cases where I have suspected this, except that I saw the process directly for the first time in September 1997 in Austin, Texas, when I saw Judge James R. Nowlin take charge of a case (ALL sides), primarily for the purpose of attacking and ultimately destroying me (well, actually, my “ordinary” legal career: which by ending that very ordinary phase of my life began the “extraordinary” phase in which I have been living ever since).  But I’ve seen some evidence of staging and restructuring cases many times since, though no one has ever been quite as outrageously blatant about it as Judge James R. Nowlin of the Western District of Texas (that was one for the Guinness Book of World Records), until perhaps right now, September 2010, in the Northern District of California.

A couple of weeks ago, I became aware that a respected an experienced attorney by the name of Michael Pines had filed a truly extraordinary lawsuit against the foreclosure and eviction consequences against the securitization of mortgages, and in particular against one marvelously slimy fellow by the name of Steven D. Silverstein who operates a rather vicious shark tank out of Tustin, Orange County, California.  Michael Pines’ complaint was, frankly, music to my ears: as eloquent as Wagner while as socially apt, “right on the mark” and stinging as the comedies of Gilbert & Sullivan, or the satires of Tom Lehrer and “Weird Al.”  Everything that Michael Pines said was true, or at least reflected MY version of truth and reality to a very reassuring degree: Michael T Pines’ NDCA Complaint for FDCPA-Wrongful Foreclosure 10-02622 Class Action

Finally, a non-disbarred, currently licensed attorney with community respectability, standing had become so thoroughly acquainted with the truth as even to go record as giving CLE Courses to other lawyers on the topic, see e.g.: http://www.free-press-release.com/news-securitization-in-litigation-workshop-6hrs-mcle-michael-t-pines-esq-certified-forensic-loan-auditors-llc- 1268337159.html

Surely a lawyer like this knows at least as much as a pathetic disbarred attorney such as myself would know.  Inception of a major lawsuit, especially a class action, means that you must design your litigation according to a very careful strategy, frame issues to match your defendants, and you must thoroughly research every topic prior to launching litigation.  Above all, before you file your complaint, you must anticipate vigorous and violent opposition—especially if you’re suing other lawyers, but even if you’re “ONLY” suing certain major banks and loan servicing companies in the largest financial industry in the WORLD in a state (California) whose, by itself, would rank right after that of France and just above Italy’s if California were a separate and independent nation, apart from the rest of the US.  Anyone who goes into Federal Court knows that the first thing to expect is the ALMOST inevitable 12(b)(6) Motion.  Few and far between are the cases where anyone just files an “answer” in Federal Court, when Federal judges, even the good ones, LOVE to throw out cases without allowing a jury trial if they possibly can, because all Federal judges are “judged” and rated by their “case statistics” which rewards a LOW case load (which requires less work) than a HIGH case load (conscientious management of which would require MUCH more work).   Congress has built in some VERY perverse incentives for Federal Judges but that is, as they say, a “Political Question” which we need not address here.

SO how can it be that Michael T. Pines, a distinguished lawyer known for speaking on this topic, had not filed (by September 2010) even a single answer to the motions to dismiss his complaint filed in June, 2010?  CAND-ECF-10-02622 Michael T Pines v Silverstein Docket 09-19-2010 Michael T. Pines did the almost unthinkable: he filed and served a major, complex lawsuit in his special field of expertise and advocacy and then, faced with the totally predictable barrage of motions to dismiss and for sanctions, never filed any responses and finally, on September 21, 2010, VOLUNTARILY DISMISSED HIS CASE.  09-21-2010–PINES AND ASSOCIATES—Notice of Voluntary Dismissal.  The Notice provides no explanation whatsoever why Plaintiffs’ Counsel so utterly and completely failed to file any response or contest to the Defendants’ Motions to Dismiss, but only lamely “advised the court:”

2. Further investigation is occurring and will be helpful.

3. Many new party defendants need to be added.

4. The case may be re-filed in a court where other class actions are pending as this

case is related to other similar actions not only in California, but in Florida,

New York, and Seattle.

5. In an attempt to further conceal their wrongful conduct, with the exception of a

few defendants, no demand for defense was made to insurance carriers and

plaintiffs wish to make sure this occurs.

6. If the case is re-filed in this court, this action will be brought to the attention of

the court so it can be reassigned here if the court desires such.

Steven D. Silverstein’s lawyer Larry Rothman responded  09-27-2010 10-cv-02622-RS Case Status Report in a more mild-mannered and civilized way than I would have thought possible, because Larry Rothman is nothing if not a fairly consistent shark in the tradition of his client (and mentor?) Silverstein—and yet Rothman pounced on 09-22-2010 THE VERY DAY AFTER Michael T. Pines’ Notice of Voluntary Dismissal and demanded that jurisdiction to impose sanctions be retained.  Judge Seeborg of the Northern District could do nothing other than comply with Rothman’s request: 09-27-2010—10-2622 McComas order re pending motions—Rule 11 Sanctions Remain.

This story is clearly not yet “over”—it remains to be seen what Judge Seeborg will do about the motions for sanctions and the administration or implementation of Rothman’s California “anti-Slapp” motion in Federal Court.  (The idea that Silverstein’s use of the California Superior Courts of Limited Jurisdiction [solely to eviscerate the rights and lives of hundreds of thousands of Californians] could be protected against a “Suit to Limit Access to Public Process” [a “SLAPP” is usually conceived of as a harassing lawsuit designed for no purpose except to silence environmentalists or civil rights advocates, or historic or coastal neighborhood preservations—NOT as a vehicle to insulate criminals like Silverstein from very meritorious lawsuits] is beyond preposterous and downright offensive.   I believe and have submitted in two lawsuits of my own that California Anti-SLAPP legislation is the “mother of all First Amendment Constitutional Violations”—even more reprehensible for its vagueness and obviously realized potential for overbreadth than the “Vexatious Litigant” index which I can only imagine Silverstein would like to have me registered on).

It also remains to be seen whether Michael T. Pines actually WILL refile his class action against Silverstein and his cronies and seriously litigate the Complaint once he DOES file it again.

In the meantime, Michael T. Pines has voluntarily dismissed his very fine complaint without even attempting to defend it.  And I have never seen anything this suspicious in my life, except for Judge Nowlin’s conduct towards me in September 1997 [footnote/sidebar: it was a civil case, but Judge Nowlin appointed a very expensive downtown Austin lawyer, a former law clerk of his, to represent the crook I was suing as Defendant, who was proceeding pro se —when I say “crook” I mean Donald Richmond was a forger, an interstate racketeer in real estate before it was even fashionable, and we had the certificate from the North Dakota Secretary of State confirming that he had forged a notary seal—and then he arranged to have me fired as counsel for the Plaintiff by strong-arming my housekeeper into giving outrageously and obviously false testimony against me, and on that occasion expressed his gratitude in open Court, on the record, to her and anyone else who would assist him in procuring evidence leading to my disbarment…..]

I submit that this all looks just a little bit too STAGED to me.   Even if it were true, as Michael T. Pines so weakly claims that:

1. Counsel is working with several agencies including the State Of California to

coordinate proceedings against named defendants and others (and criminal proceedings in other states).

2. Further investigation is occurring and will be helpful.

3. Many new party defendants need to be added.

4. The case may be re-filed in a court where other class actions are pending as this

case is related to other similar actions not only in California, but in Florida,

New York, and Seattle.

These facts SIMPLY do not excuse Michael T. Pines failure even to defend himself for filing the Complaint in any way, shape or form.  (Aside from submitting the Complaint, Pines had submitted a TRO and motion for reconsideration of denial of TRO, and no other substantive papers in the case WHATSOEVER).

And frankly, all of it would be pretty inconclusive and not nearly so suspicious if it were not for the judgment obtained in the California Attorney General’s case against a certain Mitchell Roth in Los Angeles in August of this year.   I wrote a critical letter to the Attorney General immediately after learning of the Mitchell Roth judgment, saying that I did not believe that the Attorney General had acted in the best interests of the people of California in attacking Mitchell Roth’s abortive crusade against non-judicial foreclosures and evictions.  CEL to EDMUND G BROWN CAL AG 08-26-2010.  I feared then and still fear that the end result as far as the public is concerned will be that everyone who pushes the “securitized note” issue, as a defense to wrongful foreclosure and the evictions that follow therefrom will be lumped with “the scammers” and the filers of frivolous lawsuits, such as Roth and, I’m going to predict, Michael T. Pines.  I note in the attorney general’s summary of Roth’s conduct the disturbing sentence: “Roth filed lawsuits on behalf of homeowners, pushing a novel legal argument that a borrower’s loan could be deemed invalid because the mortgages had been sold so many times on Wall Street that the lender could not demonstrate who owned it.” Isn’t THIS suit, by the Attorney General of the State of California, the ultimate “SLAPP” in the face to the movement of which I am apart, the advocacy in which I believe and have fought ever since it effectively cost me my high-paying, high-prestige job at the (they claim) oldest lawfirm in the United States (allegedly traceable back to a law office founded in lower Manhattan near the battery in 1792).

However, even more suspicious and odd, California Attorney General Edmund G. Brown had made precisely the same claim against Mitchell Roth as the demonstrable reasons for the voluntary dismissal of Plaintiffs’ case in the NDCA: “Once the lawsuit was filed, Roth did next to nothing to advance the case and often failed to make required court filings, respond to legal motions, comply with court deadlines or appear at court hearings.”http://ag.ca.gov/newsalerts/release.php?id=1979

Honestly, it just doesn’t get much more suspiciously coincidental than this: on or about August 12, 2010, the Attorney General enters into a consent judgment with Mitchell Roth preventing Mitchell Roth from “pushing” his novel legal argument that a borrower’s loan could be deemed invalid because the mortgages had been sold so many times on Wall Street that the lender could not demonstrate who owned it”—Mitchell Roth’s alleged “M.O.” was to file lawsuits and then never do anything else about it.

Slightly over a month later, on or about September 21, 2010, Michael T. Pines, supposedly one of the leading advocates AGAINST SECURITIZED MORTGAGES, voluntarily dismisses his very strong complaint against wrongful foreclosures, after having identified the issues correctly, named all the right defendants, after initiating a lawsuit and never filing any other papers or attempting even taking steps towards the serious prosecution of the lawsuit, (i.e. (without ever answering the Defendants’ Motions to Dismiss or defending his complaint in any way) .  (Perhaps it is significant that Pines’ Complaint named too many plaintiffs and defendents to be practically combined into a single suit, especially one seeking class certification, where “identity of injury and identity of nature of causation of injury” must be proven, but that’s a quibble about strategy).

Two nearly identical case histories, flawed legal strategies, associated with the same legal issue, both leading to potential legal sanctions or stigmatization of the very meritorious legal issues involved in attacking the securitization of home mortgages as the direct and proximate and therefore legal cause of the present mortgage foreclosure crisis.

The end result of both the stories of Mitchell Roth and Michael T. Pines’ case histories, as of Tuesday, September 28, 2010, is that two “seasoned” lawyers in the State of California who wanted to push that self-same “Novel Argument” about securitization leading to unenforceability of mortgages have both bit the dust without adequately developing or examining the legal theories or factual evidence which could be marshaled in favor and support of either Roth’s Complaint or Pines’ Complaint.  This is going to lead to a lot of “See, I told you so” comments which those trying to dissuade homeowners from fighting foreclosure on this issue will now be able to use.   Litigation on the scale of the Pines’ now voluntarily dismissed complaint or (I assume, without ever having looked at an example) Roth’s Complaint supposedly filed (???) 2,000 times without a single genuine litigation is expensive and difficult, and scares away even many serious people, but that is because it must be fought against all odds against such tough enemies—the international banking & finance industry, its attorneys, and its servicers.

In other words, I charge, without any inside knowledge, that Mitchell Roth’s cases and Michael Pines’ case were both staged, fraudulent situations specifically staged to discredit and destroy the causes which I so passionately support: the abolition of securitized mortgages and the modification of the foreclosure and eviction laws in the state of California and elsewhere, especially in those Western U.S.A. states which tend to slavishly copy California Codes, by inertia and gravity, as physical factors relating to size and proximity, rather than virtue or success of theoretical arguments.

And that, therein, is the biggest problem.  In almost all pro se complaints, the systems-loyal state and federal judges all have an easy time throwing out the desperate homeowners who demand to see the note or ask how their property can be taken from them by a party who appears to have no relationship to them or their original mortgage application and promissory note whatsoever.

The continuing lack of argument and exposition of evidence and theories is perhaps the most devastating consequence of the Mitchell Roth judgment and the Michael T. Pines’ voluntary dismissal (with continued exposure to punitive sanctions under both Rule 11 of the Federal Rules of Civil Procedure and the ABSURD California “Anti-SLAPP” Motion filed by Rothman for Silverstein).

“Due Process” never occurs on stage.  It is true that the language used to describe and explain legal “representation” and thespian performance is sometimes eerily similar:  the lawyer “acts on behalf” of another by “representing him” as accurately as possible in his “presentation” to the Court.   An actor, like an attorney in court, is to be judged on the “quality” or “accuracy” of his representation of both the character and the “original intent” of the author of the movie, the play, the book (before being made into a movie or play), or of the statutory and constitutional provisions underlying the lawsuit brought to be “put on” in Court—under the best of circumstances to a small, non-paying, poorly paid, “captive” audience of 12, and more often, to an even smaller audience of one judge, one or two bailiffs or courtroom deputies, and one-or-two law clerks.

Meaningful argument, substantial dialogue or “Due Process” on stage is impossible, except of course in completely “ad libbed” dramas (where no preset script is to be followed), because all the arguments and outcomes are normally predetermined (“Shear Madness” is a notable exception).

What aggravates so many Americans who get caught up in one or more aspects or elements of the litigation system in this country is how “pre-set” and “pre-determined” the outcome of all proceedings seems to be.  There is no room for open or free argument or debate—there is no “due process” for the free development of ideas or evidence—there are rote formulas and outcomes which in some courts seem totally fixed—the opposite of freedom.

In Florida for several years now I’ve been working intermittently with Dr. Kathy Garcia-Lawson on the question of why every divorce litigation must end in a divorce.   Why are there not multiple, possible outcomes, as unique as the individuals and families involved?  Why can one not question the “pre-fixed” outcome that all divorce proceedings must end in a divorce?   There is no such thing as a “not guilty” verdict.  As Kathy and others have said—every marriage is doomed once it goes to court—there are no pardons and no hung juries, every marriage must die.

Likewise, in California Unlawful Detainer Courts—the outcome is even more fixed.  In divorce court, there is at least some diversity of outcome with regard to who gets the house and who gets the house, the shares of Bristol-Myers-Squibb, the kids, the dog, the parakeet, and all those ancient plates inherited from one spouse’s great aunt who collected Royal Doulton (but whose eyesight was so bad in her old age that every set is hopelessly mismatched in the China cabinet).

In Unlawful Detainer Court, as in California non-judicial foreclosure, there is no diversity of outcome, and Judges have been known to tell defendants out right that only one outcome is possible—the homeowner must lose and be evicted.  Contractual defenses are not allowed.  Defects in property title are not allowed.  Violations of due process and allegations of fraud are not allowed—or if a good humored judge allows these arguments, the Plaintiff still wins, anyhow.

Accordingly, “due process”, has become meaningless in many American Courts: there is a “prix-fixe” menu of “notice and opportunity” whereby you have notice of some dire event—either your marriage is about to be torn apart or your home is about to be sold (and possession delivered) to the Mainland Chinese and/or Saudi Arabian investors who’ve been stalking your neighborhood or both.

“Due process” is ordinarily defined as “meaningful notice and reasonable opportunity to be heard” but even those qualifying words are extravagant compared to what’s really given in most American Courts of limited and/or specialized jurisdiction (i.e. Divorce/Family/Domestic Relations Courts or Courts of Limited Jurisdiction/Municipal Courts/Justice of the Peace Courts specializing in evictions/foreclosures).   The State of Florida is setting up special “foreclosure courts” just to speed the destruction of private property in that state along at a merry pace.

But then there are the real problems—where the Courts are of unlimited jurisdiction, like the Northern District of California—but a “show” is apparently planned and put on to discredit an idea.   A case is made up and then litigated in such a way that one side must lose.  It is exactly like fixing a boxing match or a baseball game so that the “gamblers” and “bookies” will be happy, or make money, or both.

When lawyers participate in the fixing of cases, they betray their clients and themselves, but they also betray the concept of due process and the constitutional meaning of the courts as a part of government.

When judges participate in the fixing of cases, well, it’s just too horrifying for words.

Did any of these happen either in the Mitchell Roth case in Los Angeles or the Michael Pines case in the Northern District of California?   Similar fact patterns, similar outcomes, identical legal-factual subject matter relating to the effect of securitized mortgages.

I think that “due process” should be redefined as meaningful dialogue concerning all facts and issues.  The Judges would be primarily responsible for enforcing the Court as an arena for such discussions.   Last year I was involved in an unfortunate case of ill-repute in Orange County wherein I worked with a lawyer who brought some very controversial claims of great national interest, and that lawyer then intentionally sabotaged her own claims on several levels by rushing the process, and then by ignoring it once she had a chance to get into court.  The judge granted this particular lawyer an extraordinary opportunity to correct some past mistakes, the attorney made more.  The judge then wrote an opinion outlining everything that this attorney needed to do to make her case and claims stronger, and the lawyer called the judge a traitor on the internet.  It was all just tragic and disgusting, because this one particular judge really DOES get that “meaningful dialogue” is at the heart of due process.  “Due process” is simply not satisfied by summary executions where the doomed defendant has a few words to say by way of complaint before his head is lopped off or he is thrown bodily out of his house.

The world goes faster and faster, and it is time to slow some things down.  Legal process, for instance, should NEVER be streamlined.  It should ALWAYS be slow and deliberate and give adequate opportunity for thought, reflection, and debate both on legal theories and evidence.   Above all, there must be no fixed or pre-determined outcomes.

I hope that Michael Pines did not intentionally “throw” his case by failing to answer the Defendants’ Motions to Dismiss, but I’d say it looks very suspicious.  I hope that there is nothing more than great  and random coincidence between the allegations made (and established by a consent judgment) against Mitchell Roth in Los Angeles and the obvious conduct of Michael Pines’ case in the Northern District of California.

Full and open debate and exposition of evidence is absolutely critical both to resolving important issues facing the country and for the future of the free rights and enforceability of contract and the maintenance of the right to keep and own private property.  In other words, due process, by which I mean “well-developed and meaningful dialogue” (i.e. dialectical reasoning and process) in the evaluation of petitions for redress of grievance concerning impairments of the rights to enforce and maintain obligations of contract, for the benefits of acquiring and maintaining ownership of private property, and the presentation of these arguments to juries, is key to the future of the United States of America, and there is some evidence that such dialectical debate and the adversarial process itself is being regularly subverted in these United States as we teeter on the verge of a major transformation in our country, as one economy, the “capitalist mode of production” gasps for air and tries to survive against creeping socialism and collectivism which deeply threatens our way of life.

In Plato’s Republic, Book VII, men are chained to a wall and never see the sunlight, and they believe that their shadowy reflections in the torchlight is the only reality of life, because they either never knew or have forgotten the sun and how the world looks by day.  We in America are chained in our caves by lack of due process in court, lack of full debate on important aspects of our lives, such as WHERE and HOW we live.  The judicial courts need to be a radiant source of light for all people to see evidence and theories concerning what is right and what is wrong, what is true and what is false, especially in the economy, especially in regard to the essential elements of life, such as food and shelter.

Rethinking the American Dream (CNN): is renting government owned foreclosed property the real future?

The bailout will permit the government sponsored gang of “Banksters” to keep control of all foreclosed property and rent it out to “we the people.”  Obamacare will provide mandatory health insurance, and if you don’t buy it, they will insure you go to jail.

So here, in brief summary, is the new America: (1) we rent and do not own our living places, (2) the government will provide food, shelter, and medicine from cradle to grave, (3) you can go to jail if you do not agree to participate in governmentally socialized medicine, (4) you must carry “real ID” at all times to move around the country and to prove your welfare compliance and the exact address your current government-sponsored housing, (5) you will not be allowed to own guns or express yourself in any way, shape, or form without governmental scrutiny.  Is this Freedom? God Bless America!

Renting: The new American dream?

By Paul R. La Monica, editor at large, CNNMoney.com

Apr 15th, 2010

NEW YORK (CNNMoney.com) — The American dream of home ownership has turned out to be the American nightmare for those who could never really afford a home in the first place.

Many borrowers are now in deep trouble as home prices have plummeted and the payments on bubble-era adjustable rate mortgages have shot up. Foreclosures are still continuing at an alarming pace.
rent or buy?

If the so-called Great Recession has taught us anything, it’s that buying a house is not a divine right. It’s a privilege to be earned only after you’ve saved up a nice chunk of cash for a down payment and are in a healthy enough financial position to keep making those monthly mortgage payments.

MORE AT CNNMONEY.COM

So for many consumers, renting is not necessarily the worst thing in the world. That’s worth keeping in mind now that some experts think home prices are close to bottoming and fixed mortgage rates are still fairly low.

Sure, we’ve all been taught that buying real estate is the smartest thing you can do in order to build wealth. That’s probably still true for the long haul.

But like with any investment, you should only make a purchase if you can afford the near-term hit that comes from doling out all that money now. Plus, you have to be able to stomach the possibility that the value of the house may actually fall over a short period.

And guess what? It seems many people are in fact coming to the realization that, for now at least, it makes more sense to rent instead of buy.

Jerry Davis, senior vice president of property operations for UDR (UDR), a Denver-basedreal estate investment trust (REIT) that owns and manages apartments, said that before the housing market collapsed, about 25% of the company’s renters that moved out of apartments did so because they were buying a home.

Now, only about 12% are moving out to purchase a home, and in some of the harder hit real estate markets, such as California, Davis said that fewer than 10% of movers are buying a house of their own.

“Even though prices have come down, you’re not seeing a big exodus of renters to buy homes,” Davis said. “Buying a house used to be the way to get rich, but people are afraid to jump back in.”

In addition, banks also appear to have learned lessons from the housing crash. Many remain reluctant to give mortgages to even the most credit-worthy consumers.

“It was Shakespeare who wrote that when home prices are declining, neither a borrower nor a lender be,” joked Edward Leamer, chief economist for the Ceridian-UCLA Pulse of Commerce Index and professor at UCLA’s Anderson School of Management.

Simply put, many consumers just aren’t buying the notion that the economy is getting better. For many, the stock market rally does not make their daily lives any easier. Consumers are more interested in the job market improving than the Dow or S&P 500 hitting highs.

“This is a frugal recovery. People are more reluctant to buy homes as they would in a normal recovery,” Leamer said. “If you don’t have a job or are worrying about your job, you’re not going to buy a home. That’s the ultimate statement of optimism about the future.”

Add that up and it’s reasonable to expect a rental boom that could last for some time. That’s not lost on Wall Street. Shares of UDR, for example, are up 20% this year.

Other apartment REITs have also surged this year and an analyst at RBC Capital Markets upgraded UDR, BRE Properties (BRE), Camden Properties Trust (CPT) and Apartment Investment and Management (AIV) last week, citing their growth potential.

Thomas Toomey, CEO of UDR, said that favorable demographics will also probably drive more people to rent than buy. He pointed to the increasing number of retiring Baby Boomers who may look to downgrade from bigger houses to apartments.

He also said that record-high college enrollment levels are a boon for UDR and other apartment owners. Most recent college graduates, particularly those finding work in cities, are not in a position to buy a home.

Toomey added that cities are also interested in building more apartments closer to where people work for environmental reasons.

“So if you look toward the future, it’s not just demographics and people making a conscious decision of whether they can afford a home that will lead to more renters. Cities want more apartments for younger and older generations,” he said.

Of course, that’s exactly what you’d expect the head of a company that owns apartments to say. But I also agree with him. And I’m curious to hear what you think.