Showing posts with label Mortgage Electronic Registration System. Show all posts

Thursday, October 2, 2014

STAFNE LAW CRUSHES MERS, FIDELITY AND DEUTSCHE BANK IN KNECT V. FIDELITY

KingCast and Mortgage Movies Celebrate as Stafne Law Crushes MERS, Fidelity and Deutsche Bank in Knecht v. Fidelity Summary Judgment; MERS Assignment a Legal Nullity.

Above: Attorneys Scott Stafne and Josh Trumbull at the command center

as we discussed the ramifications of yesterday's Federal Court victory.

Several months ago KingCast/Mortgage Movies cameras interviewed Attorney Scott Stafne relative to the Unconstitutional Nature of the Deed of Trust Act vis a vis his pending case ofKnecht v. Fidelity, 2014 U.S. Dist. Lexis 113131 (Washington WD 2014). We were both clearly worried but it turned out for the good because they got a Judge who actually gives a damn. You see, in my vast experience as former escrow attorney and in shooting dozens of courtroom videos I see that some Courts and Judges get it: See Bradburn v. ReconTrust in which I shot the entire argument on some of the same issues manifest herein. See also this summer's case of Pardo v. OCWEN, MERSCORP, NWTS. In this case the Judge denied the Stafne Constitutional arguments but at least got most of the the evidentiary matters correct.

However, some steadfastly refuse to acknowledge what I consider to be basic tenets of Jurisprudence. To wit, Judge Marsha Pechman, who is -- unfortunately in my opinion -- the Chief Justice in the Western District. I'll tell it straight to her face if given the opportunity, it's a Free Country the last time I checked. Heck, Attorney Stafne said as much when he moved to recuse her last year as noted in the above links, supra.

Here is the yesterday's ORDER from Hon. Richard C. Jones. I have taken the liberty of quoting some of the salient passages but there is much more.

"In Washington, lenders hoping to take advantage of the MERS system designated MERS as the beneficiary of deeds of trust, just as ABC did in Mr. Knecht’s deed of trust. But it is now clear that Washington law does not permit MERS to act as a beneficiary unless it is also the “holder” of the note secured by the deed of trust.Bain, 285 P.2d at 47.

There is no suggestion that MERS ever held Mr. Knecht’s note, and yet it purported in April 2010 to assign to DB “the Promissory Note secured by [the Knecht] deed of trust and also all rights accrued or to accrue under said Deed of Trust.” The assignment, which is recorded in King County, was executed by “MERS as nominee for [ABC],” but there is no evidence that ABC actually authorized MERS to effect the transfer. See Bavand v. OneWest Bank, FSB, 309 P.3d 636, 649 (Wash. Ct. App. 2013)(noting MERS’s failure to establish its agency relationship with a noteholder). There is no dispute in this case that MERS lacked the power to transfer anything to DB. Knecht, 4-5.

Mr. Knecht has offered two pieces of evidence: his original note and deed of trust, in which DB held no interest; and the MERS assignment, which was a legal nullity. A trier of fact could determine that this evidence makes it more likely than not that DB has no valid interest in Mr. Knecht’s note or deed of trust. Knecht, at 7.
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Fn3 -- The court observes that it is the beneficiary, not the borrower, who can be expected to possess evidence that it is the holder or owner of a promissory note. The court finds it unlikely that a Washington court would burden the borrower alone with providing that evidence. As the Bain court observed, in cases where “the original lender ha[s] sold the loan, th[e] purchaser would need to establish ownership of that loan, either by demonstrating that it actually held the promissory note or by documenting the chain of transactions.” 285 P.3d at 47-48.
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Mr. Knecht has evidence of damages caused by MERS’s and DB’s conduct. Mr. Knecht did what many homeowners faced with the prospect of foreclosure would do: he investigated. His evidence establishes that he spent substantial time on that investigation, and that suffices to establish a CPA injury. Walker, 308 P.3d at 727 (“Investigative expenses, taking time off from work, travel expenses, and attorney fees are sufficient to establish injury under the CPA.”). DB and MERS insist that the cause of Mr. Knecht’s injury was his default, not their wrongdoing, but they are mistaken. If a jury concludes that DB had no authority to foreclose, then a trier of fact could infer that the cause of his need to investigate was DB’s wrongfully-initiated foreclosure proceedings."

WASHINGTON JUDGES JUST DON'T GET IT.

WASHINGTON JUDGES JUST DON’T GET IT.

SEPTEMBER 29, 2014WASHINGTON STATE

I worked on preparing a couple briefs this weekend. One of them dealt with article I, section 12 of the Washington Constitution. This Constitution provisions states: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”

Article I, section 12 of Washington’s constitution is different than the “special privileges and immunities” clause of the United States Constitution (and most State constitutions) because one of its purposes is protect Washington citizens from our state government providing special privileges and immunities to corporations. Its purpose, as a part of Washington’s Declaration of Rights, was to prevent all three branches of government from corruptly affording corporations and private persons special privileges and immunities which infringed on those citizens rights grounded in Washington’s Constitution.

So as I was saying when I write my briefs I have to do research to document the assertions I make to the courts. At least that is what I was taught to do back in the early nineteen seventies. Oftentimes, however, I am not sure the courts consider these citations much as the superior courts now routinely refuse to provide any reasoning for their judgments and our courts of appeal decide over fifty per cent of their by way of non-precedential rulings.

But getting back to the point, I was doing what I was taught to do, i.e. researching Article 1, section 12, when I came upon the case of Ockletree v. Franciscan Health Sys., which was decided in February of this year.

The case describes the historical context in which Article I, section 12 was enacted:

“Article I, section 12 of the Washington constitution was adopted against a backdrop of legislative misconduct that is almost unimaginable today. The framers lived in a time when the “‘wholesale corruption of state legislatures [was] laughed at by honest men throughout America.’” James Leonard Fitts, The Washington Constitutional Convention of 1889, at 28-29 (1951) (unpublished MA thesis, University of Washington)(on file with Washington State Law Library) (alteration in original) (quoting Tacoma Daily Ledger (July 19, 1889)). The territorial legislature was no exception, and “spent much of its time granting special acts or privileges.” 1 Wilfred J. Airey, A History of the Constitution and Government of Washington Territory 208 (1945) (unpublished PhD dissertation, University of Washington) (on file with Washington State Law Library).” Ockletree, 179 Wn.2d 775.

I was astounded by the language “misconduct that is almost unimaginable today.” I raised my head. Stared out the window and thought “these justices are so out of touch they apparently obviously do not realize “the wholesale corruption [of our our nation and state governments is] laughed at by honest men [and women] throughout America [today].”

These judges obviously do not see the analogy between what is occurring today and that which occurred in Nazi Germany where courts routinely approved governmental evictions of persons from their homes, notwithstanding German law. Indeed, German judges, much like our judges today, acted in a time when the law still provided citizens the same protections on paper, but the constitutional rights of the people were ultimately eroded to nothing.

I read the above quote from Ockletree several times. And I became angrier, then saddened, each time I read it. I know first hand about the special privileges and immunities the Washington judges afford the the Lending and Servicing industry today, notwithstanding the protections article 1, section 12 requires be afforded my clients.

It is my experience that some Washington courts have made bank servicers immune from having to produce discovery relating to their mass produced robo-signed documents and illegal conduct. Many Washington courts daily provide special privileges to this corrupt special interest industry by refusing to allow borrowers to take utilize those normal evidentiary protocols which are afforded to every other litigant which enters the original equitable or legal jurisdiction of the superior courts.

The Courts eagerly, and without question, enforce the Deed of Trust Act against borrowers. Courts do so with the full understanding that this statute was enacted solely to allow special interests the right to subvert Washington property owners that due process which is afforded virtually all other litigants when they a case within the superior court’s jurisdiction. The legilature wrote this law, the Governor signed it, and the courts enforce it solely in order to immunize lenders and servicers from the costs which are inherent in our system of justice for everyone else.

It is difficult to understand why our courts don’t get it; when so many citizens do. The governmental corruption the framers were concerned about has not lessened. Many of our homeless (which was not as much of a problem in 1889) would legitimately argue the corruption has gotten worse as the courts continue to ignore Washington’s privileges and immunities clause in favor of the special interests of the lending and serving industry.

So when I write my briefs I have to do research. So I was researching Article 1, section 12 came upon the case ofOckletree v. Franciscan Health Sys., which was decided in February of this year.