Wednesday, September 28, 2011





EDITOR’S NOTE: We have all said what they did was criminal, now it is becoming official. And before you naysayers start complaining, let me point out that this has actually followed an orderly progression and you will see it many times over in the coming months.
  • First we started with the deductive logic and investigation, and allegations by borrowers in court. They were not taken seriously until the number of such complaints reached a crescendo, but that is the way our system works.
  • Then the regulators, who had turned a deaf ear to anyone writing a letter complaining about the servicing of their loan or the behavior of a pretender lender, turned themselves around and entered a slew of cease and desist, consent orders and those orders have teeth and can be used by borrowers in discovery and in their pleadings. The agency findings of misbehavior are presumptively correct.
  • Now the justice system is getting involved, because building criminal cases takes a lot longer than civil cases or even administrative cases against the banks. Remember they have to prove the case beyond a reasonable doubt — not merely on innuendo or they “must have done it” or anything but that they did do it, they knew they did it and they did it with criminal intent.

Wells Fargo accused of forging loan documents

By Doug McMurdo
Posted: Sep. 22, 2011 | 2:02 a.m.
Updated: Sep. 22, 2011 | 8:27 a.m.
A Las Vegas attorney who represents people facing foreclosure has accused Wells Fargo of forging loan documents. The allegation is the latest sign that efforts to hold mortgage lenders accountable are escalating in Nevada.
In court papers filed this month in Clark County District Court, attorney Dave Crosby alleged bank employees committed forgery and fraud in making a $350,000 loan to a father of four who was unemployed at the time.
“They forged signatures, they backdated documents,” Crosby said. “We’ve got them cold.”
Crosby said the bank has presented two deeds of trust for the same property. One bears the signature of Olivia A. Todd, who on Jan. 27, 2010, was identified as an assistant secretary with MERS, Inc., a mortgage servicer from the Phoenix area and a co-defendant in the lawsuit.
But on Feb. 16, 2010, Todd’s signature appears on a second deed of trust, where she is identified as the firm’s president. Both assignments were notarized as authentic, Crosby said in court papers.
Crosby made his allegations in a request to have a judge review three failed mediations between him and his clients, Ryan and Mical Henderson of Las Vegas, and lawyers with Wells Fargo, formerly Wells Fargo Home Mortgage.
Attempts to contact bank attorney Kevin Soderstrom were unsuccessful. Calls to Wells Fargo also went unreturned.
Nevada Foreclosure Mediation rules allow for a judicial review of failed mediations. In Clark County, District Judge Donald Mosley hears all such reviews.
The Legislature created the Foreclosure Mediation Program in 2009 to help thousands of troubled homeowners in the state, considered ground zero of the U.S. housing crisis, where tens of thousands of homes have been abandoned or foreclosed and a staggering 80 percent of homeowners owe significantly more than their homes are worth.
But banks and title insurance companies have not always been able to prove they own the mortgage and have the right to foreclose.
The Henderson case is the latest shot across the bow of mortgage lenders. The Nevada Supreme Court has issued rulings favoring homeowners in several recent cases on appeal. Nevada Attorney General Catherine Cortez Masto is expected to file criminal charges against bank and title company employees, as well as notary publics, over allegations of robo signing.
The term applies to a practice of signing affidavits attesting that bank officials have reviewed documents and found them proper even without making any review.
When the robo-signing scandal erupted last October in Florida, bank employees admitted to signing 10,000 documents a month without knowing whether they are legitimate.
Masto’s office declined comment on any plans for criminal action against robo-signers. She has taken an aggressive approach to holding banks accountable, and the Legislature earlier this year enacted new laws regarding robo signing.
Crosby said he suspects robo-signing is widespread in Nevada. One of his cases was the subject of an appeal filed with the state’s high court, and he used the lender’s own words against it.
Supreme Court justices found in favor of Crosby’s client, Moises Leyva, ruling unanimously that lenders have an absolute duty to strictly follow foreclosure mediation rules exactly as written.
More important, the high court ensured lenders couldn’t simply provide a sworn statement, often from their own employees, that they were the lender even when they failed to provide a verified copy of the deed of trust.
“They admitted how disorganized they were, that they lost paperwork,” Crosby said.
In court papers, Crosby accused Wells Fargo of continuing to play outside the lines. He alleged that a document the bank produced during mediation was backdated and bore a style of notary stamp that didn’t exist at the time it was signed. The document is included in the court file.
He also alleged that two documents bore the name of a bank employee and “are notarized by the same notary, (but) both signatures do not belong to the same person.”
Crosby wants Mosley to rule that Wells Fargo acted in bad faith, to award sanctions for the “obvious forged, backdated and falsified documents” and to award cash sanctions.
Crosby will ask Mosley to fine Wells Fargo an amount equal to the difference between the loan and the home’s current value.
The Supreme Court in its recent decision has made it clear to judges that such sanctions are appropriate when lenders are found to have acted in bad faith. A hearing has been scheduled for Oct. 6.
Review-Journal writer Chris Sieroty contributed to this report. Contact Doug McMurdo at or 224-5512.

26 Responses

  1. @tnharry – Sorry, but “I don’t think you can” doesn’t say anything – tell me why not, and what your legal authority is.
    As far as the AG goes, it does not matter that it’s not my claim – I’m a citizen of the state of GA and have standing to force my public officials to perform their jobs as required by law – see my new post on “fleshing out mandamus/prohibition”..hmm…that may be on another thread, if so, I’ll copy it here.
    To be clear, are you an atty, adn if so, what state, please?
  2. @evol – as to your forgery questions, no I don’t think you can. As to the AG, you don’t have standing. The AG isn’t settling your claims, he’s settling state claims.
  3. @The A man…”May G-d erase their names and memories from the face of the Earth” is a GOOD start, but I think you left out Anal Gang Rape…certainly we can incorporate and devote a few YEARS of anal gang rape into their punishment…8-)
  4. The Protests are starting to hit the mainstream media
  5. To flesh out writs of mandamus and prohibition a bit, each of which I’ve had success in using, let me say that they are generally used to force public officials to perform their required ministerial duties.
    They are remedies reserved for “special” cases, and cannot be used in place of, or where there are other legal remedies available. i.e., you cannot use it if you have the avenue to appeal something.
    I’ve used it to force a judge to rule on motions he refused to rule on – oh, by the way, the punishment is IMPEACHMENT when taken against a judge for that or similar.
    It can be used, and the threat of it has been used to force court clerks to provide certified copies of notary certificates or authentification, as it’s a job requirement – the statutes say it’s public info.
    If the A.G.’s “job description” requires him/her to investigate purported criminal conduct adn they do not, I believe this is teh proper remedy to force them to do so – mandamus forces action to be taken.
    If the A.G.’s “job description” requires him/her to investigate purported criminal conduct PRIOR to “cutting a deal”, adn they do not, prohibition restricts them taking that action, and is also used to reverse and set aside actions teh public official had no right to do, meaning that even after the fact, you can file a writ of prohibition to set aside any deal cut by proving the A.G. had no right to do so.
    Again, this is REAL simple law, albiet not used that often, and I should have gotten an answer in a dy or two at most, adn to get NO answer, is “interesting”
    HEY, if it’s a bullshit theory, why haven’t all the resident experts said so? I don’t know for sure…that’s why Ilm asking…
  6. To Neil Garfield Family and Friends
    Have a Happy Rosh HaShana (Jewish New Year)
    May G-d Give you health Prosperity and Happiness to you and your Family.
    May G-d also bless everybody on this Blog. Except for the Banksters and their friends May G-d erase their names and memories from the face of the Earth.
    Be Strong and Courageous.
  7. Marie
    If you fail to acknowledge that debt buyers are the culprits — you lose from onset.
  8. @tnharry – no disrespect intended, but as I explained in follow up posts, what you offered does not apply/answer my
    Q’s – I’m not talking/asking about fodder for filing a complaint, adn am not concerned with what is or is not “proof” of a forgery, I’m only concerned with if you DO have “proof (what is proof is only relevant if my basic premise is correct, adn can be hashed out later).
    I asked:
    1) Is it viable to file writ of mandamus to force my state AG to “do his duty” and properly investigate and if warranted, file criminal charges against the banksters;
    2) Is it viable to file a writ of prohibition to force my AG to not “cut a deal” letting the banksters off teh hook without having done teh proper criminal investigation first;
    3) Is it viable to, upon presentation of proper proof of a crime, (I used as example what is common, and was applicable to me – the forgery of a doc in the chain of title), force the police to arrest the attorney selling a property on the steps, and if the cops won’t do it on their own, swear out a warrant yourself (my understanding is that doing so, you inherit the “false arrest” liability, so make sure you’re golden if you do);
    4) Is it similarly viable to, after having given the lender and FC atty same proof, have those within the firm “legally capable of being culpable”, arrested for criminal intent after they refuse to cancel the sale, and before the sale even takes place.
    These should be VERY simple criminal law issues (all I’ve ever done is civil) – all day today, we’re seeing a state AG is filing criminal charges against banksters for EXACTLY this – only exception, I think, is that they’ll just get a summons and have to show up in court at a hearing, but what I’m suggesting is having the FC attorneys arrested on the steps and in their offices for criminal intent and criminal theft.
    If, AS I HAVE ASKED HERE, AD NAUSEA, this is a viable legal tactic, it would effectively shut down every foreclosure firm in the country, as the shoe would now be on teh other foot – instead of thinking tehy have carte blanche to flaunt teh law, they would know that if there’s ANY hint of illegality to the chain of title, that they would go to jail…wanna see how quickly all the FC law firm’s employees all QUIT?!?!?
    Again, it’s probably a REAL simple legal question, and for it not to be answered by teh lawyers here, especially Neil, who continually espouse varying “legal angles to pursue (and BUY)”, really raises some flags…
    Hey – all they have to do is tell me it’s not viable and WHY – but all I get is dead air.
  9. @enraged – i think she meant as opposed to refi, i.e. purchase money
  10. Thank you Marie. That’s exactly my gripe as well. Cut-and-paste rantings nearly impossible to read with no practical application, no personal thought process, hardly any substance usuable in court and a nasty attitude to boots.
    Someone else was doing that too, a few weeks ago (Nancy Drewe): rehashing the same overdone theories and refusing to answer any direct question. She was called on it so much and by so many people that she hasn’t written a darn thing in a couple of weeks.
    That being said, it is incredible how much has happened in the past couple of months. The way things are moving, I expect drastic changes before the end of the year. If you are not in foreclosure, I would simply sit tight for right now. That’s what I’m doing: I built my case, I got the docs I needed, I quit paying, got an attorney (who is costing me less than my overpriced mortgage), went on the attack and now, I’m sitting tight. If you’re in foreclosure and haven’t found an attorney yet, I would expect more defense lawyers to jump on the bandwagon really fast, now that most issues have already been raised and governmental agencies are taking action. So, now would be the time to contact them every day, until you find one worthy of that name and seriously knowlegeable.
    Of course, if you are already represented, you know what to do…
    What I don’t understand, though, is what you mean by your loan being an original financing. Are you saying that your loan was never transferred nor assigned to anyone by your lender and that you have been paying the same entity from day one? It still doesn’t tell you where your money is going though. I am one of those people who believe in tracking down the money. Especially if, at any point in time, your payment was misapplied or late and fees were added to your monthly payment. The other thing is: your servicer/lender may very well be the same but where did the money from your loan actually come from? Who fronted it? Those are questions you may want to ask, especially if you are looking to stay in the house but with a loan modification. Remember: the investors are, allegedly, the deciding party as to modifications (or at least, that’s what servicers have been claiming to justify their refusal to modify). So, there still are questions a QWR might answer.
    That was my thought…
  11. @evol – this is the first time i’ve seen the question of yours posted and I’ve given you my opinion. what are you looking for exactly?
  12. @marie – it’s all standing. if you go all the way down the securitization road or stop with the immediate entity’s lack of assignments and/or endorsements, it all comes back to standing. with few exceptions, this is the theory that has been the common theme of the victories that have been discussed on this site or others.
    the scary problem though is that to argue that US Bank lacks standing to foreclose because there’s no endorsement from Bank of America on the note pretty much admits that somebody out there (most likely Bank of America in that situation) DOES have standing, and makes no defense or excuse for the monetary default, hence all the theories to explain away why there is no monetary default because there is no money owed.
    and therein lies the problem – trying to divert the attention from the monetary default requires using all of these theories such as the unconstitutional banking, ultra vires contract, not legal money, unsecured, debt disputes, etc. and that’s where the courts start to not take you seriously.
    if you can go into court and say “i don’t think this bank has the authority to foreclose on me” and tender mortgage payments into the court clerk’s office to maintain the status quo, then you will gain an audience with the judge. but it’s way too easy for the judge to simply say that you’re trying to get something for nothing and delay the inevitable. that’s why we’re seeing so much of the progress made in BK courts – it’s not such a foreign concept to prove claims and to have no payments made on disputed debt.
    of course, this is just my opinion based on my experiences. let the floodgates of criticism begin….
  13. @Marie…I think most of what is brought up here is getting us nowhere – I’ve been getting FC’s put off by the seat of my pants (and sporadic BK filings) for 2-3 years on dif properties (I do a lot of my own legal work anyway, and am only HALF clueless), and NONE of them has come from the reports or anything else for sale, but rather from things I’ve thought of, and every time I have one pending, I step back adn think about all I’ve seen here, and realize that I can bring NONE of it to bear.
    Which is REALLY making me think the reason I can’t get any of these “experts” to answer my Q about having the FC attys arrested, is because it may be a simple and FREE way to nip this shit in teh bud – I emailed McCalla Raymer proof that an assignment was a forgery, threatened them with arrest, and they cancelled the sale.
    It may be that’s all it takes, just put together proof of forgeries have them arrested at/after teh sale for theft, or before the sale for criminal intent.
    Is it only ME that finds it odd that I’ve been asking this same, simple Q for weeks here, adn cannot get an answer?
  14. Tnharry
    Exactly my frustration with the endless discussion of refi/debt buyers on this site. Plenty of loans like mine were original financing. This debt buyer obsession is not getting us anywhere
    Even if this theory “has legs” how do you get discovery. Why aren’t we talking about practical
    or creative solutions to dealing with the bsnksters.
  15. but only subprime….we’ve discussed some good strategies before. why are you still clinging to this untested legal theory when you better bullets in your gun?
  16. and of course all the “false default”…
  17. re-finance AND jumbo new…
  18. @carie – that’s a non-response. IF it’s a refinance, and IF that refinance was subprime, then it’s not a “real” mortgage anyway, right? aren’t those the operative qualifiers from Anon’s theory?
  19. It’s not a “real” mortgage anyway…just unsecured debt attempting to be collected by third party debt collectors.
  20. @carie – i found it myself finally. FN 35 is nothing – just background information as to how secured transactions work. have you looked at this yourself before posting it 258 times on the site? i would agree wholeheartedly with the idea embodied within it, but it alone doesn’t prove or disprove anything. could you really imagine yourself standing in front of a judge or jury and stating that your case lives or dies on a footnote in the November Oversight Report for the Congressional Oversight Panel? that’s not precedent. it’s really nothing at all. in fact, if you’ve looked at it yourself, you’d realize that all of footnote 35 is in fact attributed to a Pepperdine Law Review article
  21. @carie – i’m trying to track down this footnote 35 myself. do you have a cite or url? it really looks like it’s explanatory in nature and not anything more, but i want to see the full context myself.
  22. Carie
    Tarp fn 35 is so much meaningless noise in a state like Virginia per Va case law
  23. [...] Livinglies’s Weblog Filed Under: Foreclosure Law News, Foreclosure News Tagged With: crisis, foreclosure, [...]
  24. from ANONYMOUS:
    “Servicer never divulges as to whether they are the current creditor to whom any payments will forwarded and not transferred to any other party, or whether servicer is acting on behalf of another party. If acting on behalf of another party — that party must sign the modification – servicer must disclose this.
    Yes, if loan was written off — any party (servicer/servicer acting on behalf of) who now holds collection rights – those rights are for an unsecured written-off debt. IRS will not let them collect twice. And, everything must be properly transferred. See Footnote 35 by TARP Oversight panel – below —
    35–”There are two documents that need to be transferred as part of the securitization process – a promissory note and the security instrument (the mortgage or deed of trust). The promissory note embodies the debt obligation, while the security instrument provides that if the debt is not repaid, the creditor may sell the designated collateral (the house). Both the note and the mortgage need to be properly transferred. Without the note, a mortgage is unenforceable, while without the mortgage, a note is simply an unsecured debt obligation, no different from credit card debt. See FBR Foreclosure Mania Conference Call, supra note 3.”
    “…In order for modification contract to be validly executed in the name of servicer — need proper transfer of note and mortgage to servicer. Not enough to just hold the note for someone else. This is a contract. Bankruptcy reform bill was voted down twice by Congress – why? afraid Americans would understand what was really going on. Better for them to con homeowners further by luring into false mod contract…
    The servicer/debt collector (current creditor) do not care about who OWNED the written off debt — WE CARE — if they can get away with non-disclosure — they will — and deregulation says — they can. Debt buyers love to state the past creditor as the current creditor — but, legally, this is not the case — and it is fraud and in violation of federal law. Courts accept that past (possible) creditor is still current creditor because that is how attorneys present it– but , this is fraud and a big problem — and it is not being investigated as it should be.
    Consumer protection laws say no. Though not as strong as we would like — consumer protection laws do exist — have to use them to the fullest. Including any sale of loan to any party — as outlined by the TILA — (and FDCPA for that matter). Tired of looking at this whole mess from “investor” prospective — there are “security investors” and “distressed debt investors” — need to distinguish — and need to focus on consumer law and protection.
    Everyone has a right to know their current creditor. If that right is violated — so is federal law. If you do not know your current creditor — you will be affected for the rest of your life. Any modification you sign will be false. It is time to stop focusing on investors (who have been paid back – except they may not have earned the usury interest rate they thought they would) and start focusing on consumer fraud — and violation of our rights. Investors have gotten help — they were bailed out — WE NEED THE HELP NOW.
    It does not matter that security investors may have helped fund the banks — they were not then — and are not now — our creditor. What a bank does with receivables is their business — we have no contract with security investors — or servicers unless the servicer acquired legal title –and if so — say so — and say when and how (as required by law) — and for what price. And, say this before a modification is negotiated — it is ammunition. Any concealment is — simply fraud upon fraud.”
  25. Here we go…looks like I’m right, but STILL sure could use a little advice…
    I’m still waiting for at least ONE of you law-doGs (NEIL!!!), preferably ALL of you, to opine one way OR THE OTHER, on filing writs of mandamus/prohibition against the AG’s to force them to perform their duties by thoroughly investigating and prosecuting crimes perpetrated by the banks, and preventing them from cutting deals without thorough investigation – my understanding is that these are administrative functions and fall under the purvue of such writs.
    And same for mandamus against the official, in GA I believe it’s the Superior Court Clerk of each county, responsible for collecting the fees MERS has dodged, forcing them to file suit to collect.
    And same for having the attorney (non-judicial) on the steps that sells or even starts to cry out the sale, arrested for applicable theft and criminal intent charges after you have put the attorneys/lender on notice of PROVED forged docs (such as assignment) in the chain of title. Also, by same logic, can’t you have everyone in the attorney’s office that is legally capable of being culpable, that you can prove “touched it”, arrested for criminal intent when they tell you in writing (or a recorded phone call) that they are not cancelling the sale, even considering the forged docs.
    You guys bark it up ten different ways to Sunday about various legal aspects of all this, from one extrme to the other; why won’t you come down on these issues?
    I’ll be in court and swearing out criminal warrants within the WEEK if viable.
    HOW ABOUT IT?!?!?
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