Wednesday, October 6, 2010

HR 3808 READ FULL TEXT OF THE NOTARIZATIONS ACT BILL HERE

Text of H.R. 3808: 
Interstate Recognition of 
Notarizations Act of 2009 
Back to Bill Status


Sep 29, 2010 - Enrolled Bill. This is the final text of the bill or resolution as approved by both the Senate and House. This is the latest version of the bill currently available on GovTrack.

H.R.3808


One Hundred Eleventh Congress
of the
United States of America
AT THE SECOND SESSION


 
Begun and held at the City of Washington on Tuesday,

the fifth day of January, two thousand and ten

An Act

To require any Federal or State court to recognize any notarization made by a notary public licensed by a State other than the State where the court is located when such notarization occurs in or affects interstate commerce.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


SECTION 1. SHORT TITLE.


This Act may be cited as the ‘Interstate Recognition of Notarizations Act of 2010’.


SEC. 2. RECOGNITION OF NOTARIZATIONS IN FEDERAL COURTS.


Each Federal court shall recognize any lawful notarization made by a notary public licensed or commissioned under the laws of a State other than the State where the Federal court is located if--


(1) such notarization occurs in or affects interstate commerce; and


(2)(A) a seal of office, as symbol of the notary public’s authority, is used in the notarization; or


(B) in the case of an electronic record, the seal information is securely attached to, or logically associated with, the electronic record so as to render the record tamper-resistant.


SEC. 3. RECOGNITION OF NOTARIZATIONS IN STATE COURTS.


Each court that operates under the jurisdiction of a State shall recognize any lawful notarization made by a notary public licensed or commissioned under the laws of a State other than the State where the court is located if--


(1) such notarization occurs in or affects interstate commerce; and


(2)(A) a seal of office, as symbol of the notary public’s authority, is used in the notarization; or


(B) in the case of an electronic record, the seal information is securely attached to, or logically associated with, the electronic record so as to render the record tamper-resistant.


SEC. 4. DEFINITIONS.


In this Act:


(1) ELECTRONIC RECORD- The term ‘electronic record’ has the meaning given that term in section 106 of the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7006).


(2) LOGICALLY ASSOCIATED WITH- Seal information is ‘logically associated with’ an electronic record if the seal information is securely bound to the electronic record in such a manner as to make it impracticable to falsify or alter, without detection, either the record or the seal information.


Speaker of the House of Representatives.


Vice President of the United States and


President of the Senate.

A READER SHARES MORE POTENTIAL FAR WORSE CONSEQUENSES OF H.R. 3808

Anonymous has left a new comment on your post 
"EFFECTIVE TODAY, HOMEOWNERS MUST STOP MORTGAGE PAY...":

Link to the text of the bill is here: http://www.govtrack.us/congress/billtext.xpd?bill=h111-3808
This not only affects foreclosures, it could impact identity theft and aid illegal immigrants in gaining “official” documents, as eventually one or more states will dilute their notary laws to the point where someone could say they are anyone and get anything notarized without being present, without ID, without fingerprints. This law, if signed by the President, could potentially have far worse unintended consequences than what we are already going through.

I BEG YOUR PARDON? HR. 3808 IS A BLATENT FU TO HOMEOWNERS.

Secretary Brunner: 
Please tell President Obama NOT to sign 
the Interstate Recognition of Notarizations Act
By Dave on October 5, 2010 6:46 PM

On Monday, September 27, 2010, U.S. Senator Bob Casey (D-PA), on the Senate floor, asked that the Judiciary Committee be discharged from further consideration of a bill that would hurt consumers.

H.R. 3808 requires federal and state courts to recognize notarized documents from other states, including ones that contain electronic notarizations that are not subject to the same consumer safeguards of documents notarized in person. Some financial institutions are using electronic notarizations to process home foreclosure documents.

Sen. Casey asked that the Senate move forward with immediate consideration of the bill with unanimous consent that the bill pass with no other action or debate. The Senate passed the bill without amendment by unanimous consent. It now sits on the President's desk. I'm asking you to email or call the President at 202-456-1111 to ask him not to sign the bill.

H.R. 3808 is known as the "Interstate Recognition of Notarizations Act." It passed the House under a suspension of the rules in April 2010. It requires federal and state courts to recognize any notarization that is lawful in the state where the notary is licensed. Now, in one day, it passed in the Senate.

When I learned of it last Thursday, it sounded innocuous to me, but then I started looking at the timing of the bill. GMAC, owned by Ally, had just suspended its foreclosure actions in 23 states, including Ohio. I had already referred Chase Home Finance, LLC, on August 23, 2010, to the U.S. Department of Justice, asking it to review and investigate Chase's document notarization practices in home foreclosures (18,000 documents per month were being notarized by 8 people, along with other irregularities). I license notaries in the State of Ohio. Even though I don't have the power under state law to investigate or prosecute, I couldn't stand idly by without acting. That's why I'm asking you to email or call the President at 202-456-1111 to ask him not to sign the bill.

Last Wednesday, the day before I announced the DOJ referral, JPMorgan Chase announced it was having third party counsel review its document procedures for foreclosures. Just two days before, the U.S. Senate had rushed through H.R. 3808. Something didn't seem right. Since then others agree with me.

Notarizing a document requires the signer to make a fundamental statement, an acknowledgment, before a notary public. It is used for documents of great sensitivity or value, like when the title of a car is transferred on its sale or when a bank tells a court how much is owed on a note for a mortgage when it wants to foreclose.

Some states have adopted "electronic notarization" laws that ignore the requirement of a signer's personal appearance before a notary. A notary's signature is that of a trusted, impartial third party, whose notarization bolsters the integrity of the document. Many of these policies for electronic notarization are driven by technology rather than by principle, and they are dangerous to consumers.

President Obama was presented with HR. 3808 on Thursday, September 30, 2010. As of today, he has not signed the bill. Please join me in urging him not to sign the bill by sending an email or calling the White House at 202-456-1111.

Mortgages are now being used as backing for securities traded all over the world by financial institutions. When a mortgage goes into default, a "chain of title" (list of its owners) must be created. It's being discovered that many financial institutions have taken shortcuts in creating lawful chains of title that allow them to foreclose and take homes when they would not otherwise have the right under the law.

Banks demand we follow every letter of their contracts. We must demand they follow the law. It's that simple. Please join me in urging President Obama not to sign the bill by sending an email or calling 202-456-1111.

Thanks for working together,

Jennifer Brunner
Ohio Secretary of State

EFFECTIVE TODAY, HOMEOWNERS MUST STOP MORTGAGE PAYMENTS IMMEDIATELY! OBAMA THREATENING TO PARDON ALL LENDERS! YOU MUST FIGHT BACK, SIT ON YOUR MONEY, FORCE THE SYSTEM TO STOP UNTIL YOUR RIGHTS ARE FULLY PROTECTED!

FEDERAL NOTARY BILL 
ATTEMPTS TO GRANT 
FULL PARDON TO LENDER, NOTARIES, WITNESSES
Posted on October 6, 2010 by Neil Garfield

PRESIDENT OBAMA has headed for his desk a bill that would ratify the illegal practices revealed for the past three years on this blog and for the past three weeks and mainstream media. He might just as well issue Robo signed presidential pardons for the thousands of people involved in defrauding homeowners, investors and the entire judicial system. Send him a letter and tell him not to sign it.

Under the guise of simply reflecting changes in technology, the bill would force state and federal courts to recognize and accept the notarization from another state. This would be true even if the notary signed in blank. It would be true even if the witnesses were not present despite the recitation to the contrary signed by the notary. It would be true even if the main person signing the alleged document was not the person named as having signed the alleged document. It would be true even if the main person signing the alleged document was not present or identified by the notary. In other words under this new bill passed by both the House of Representatives and the Senate, both essentially bought and paid for by the financial services industry, all of the illegal, improper and criminal acts performed by the “lenders” (mainstream media insists on using this term even though it is not true) would be made legal. That sounds like a pardon to me, how about you?

If Pres. Obama signs this bill it will become law. At that point, more than half of the meritorious defenses of borrowers (homeowners) or petitioners in bankruptcy courts will go down the drain. The fact that this bill even got introduced without the mainstream media taking note is not really surprising considering the fact that mainstream media has failed to grasp the true scope of this fraud which began with the first sale of a fake mortgage bond to an investor. A fake financial services product was marketed to investors who believed they were lenders and to homeowners who believed they were borrowers, both of whom were mere pawns in the Wall Street game. In fact they supplied the only two ingredients that Wall Street wanted —money from the lenders and a signature from the homeowners. The nature of the document was immaterial. Now that the foreclosures are obviously fake, lawmakers responsive to the demands of the financial services industry have quietly passed a bill in both houses of Congress that would allow the fraud to be ratified and the perpetrators to escape any accountability whatsoever.

If Pres. Obama signs this bill he will be condemning the victims of this fraud to bear the full cost of the losses. If Pres. Obama signs this bill he will be awarding the perpetrators of this fraud all of their winnings. In case anybody hasn’t been looking, another development which has been ignored by our mainstream media is that countries around the world are looking for an alternative reserve currency to replace the once almighty US dollar. The reason they are looking is because they no longer have confidence in a system that produced a Wall Street scheme which in essence depreciated the value and viability of currencies and economies all over the world.

If Pres. Obama signs this bill he will be giving a signal to the world that the United States will be more vigilant, more sophisticated and much more involved in enforcement of laws, rules and regulations already existing in the marketplace and upon which all investors, lenders, homeowners, borrowers and foreign governments had placed reasonable reliance and suffered to their detriment. The loss of our status as the issuer of the world’s reserve currency will have profound consequences on our nation, our citizens, our businesses, and the prospects for generations of Americans yet unborn.
 

9 Responses

zurenarrh, on October 6, 2010 at 8:46 am Said:

So it’s not retroactive but ic Obama signs this, which he will–then they could just issue new robo-signed docs and do legally now what they couldn’t before? If so, then I second Karen’s “Holy Fucking Shit!”

Karen Pooley, on October 6, 2010 at 8:45 am Said:

This is the bill:
Please tell me where it rubber-stamps notaries NOT witnessing signatures?

H.R. 3808:

Interstate Recognition of Notarizations Act of 2010 – Requires each federal and state court to recognize any lawful notarization occurring in or affecting interstate commerce which is made by a notary public licensed or commissioned under the laws of a state other than the state where the court is located.

Requires such a notarization to: (1) use a seal of office as symbol of the notary public’s authority; or (2) have the seal information, in the case of an electronic record, securely attached to, or logically associated with, the electronic record so as to render the record tamper-resistant.

BSE, on October 6, 2010 at 8:32 am Said:

Another way to scam the US Home Owner and protect the banksters. Millions upon millions will now be forced into bankruptcy. So now we will flood the bankruptcy courts. and continue the fight. OBAMA you are an idiot !

BE a Patriot STOP YOUR MORTGAGE PAYMENT !

dny, on October 6, 2010 at 8:27 am Said:

It’s called H.R. 3808, known as the “Interstate Recognition of Notarizations Act.”

See more at http://www.progressohio.org/blog/2010/10/secretary-brunner-please-tell-president-obama-not-to-sign-the-interstate-recognition-of-notarization.html

foreclosurefight, on October 6, 2010 at 8:25 am Said:

How ironic that everyone in Washington has been tripping over themselves for YEARS with regards to this FRAUD and can’t seem to get anything done or make any progress to stop this…

Yet within WEEKS this Bill makes it to the President’s desk?!?!?

Does everyone in Washington have their heads so far up the Bankers ass that they know what they had for lunch…or is it the other way around???

This story was in the NY Times this morning…

http://www.nytimes.com/2010/10/06/business/06mortgage.html?_r=1&partner=rssnyt&emc=rss

They are trying to pass this bill through now and the timing has nothing to do with the current “crisis”…MY ASS IT DOESN’T!!!!

dny, on October 6, 2010 at 8:21 am Said:

“If Pres. Obama signs this bill he will be giving a signal to the world that the United States will be more vigilant, more sophisticated and much more involved in enforcement of laws, rules and regulations already existing in the marketplace and upon which all investors, lenders, homeowners, borrowers and foreign governments had placed reasonable reliance and suffered to their detriment. ”

- Neil, don’t you mean, if Pres. Obama VETOES this bill…?

See the misleadingly named story in NY Times at http://www.nytimes.com/2010/10/06/business/06mortgage.html?_r=2&ref=us

Ohio Secretary of State Jennifer Brunner is speaking out against the bill, as she seeks to have a federal investigation of alleged criminal notary activity.

Karen Pooley, on October 6, 2010 at 8:16 am Said:

HOLY FUCKING SHIT. You’ve got to be kidding, but somehow I don’t think so.

Zinger, on October 6, 2010 at 8:09 am Said:

WHERE are your links to information? What bill? Do you have bill number to read?

gwen caranchini, on October 6, 2010 at 8:04 am Said:

If this is the first that I heard of it from you, then where are the media? I just wrote the White House, my congressman and my senator on this. We need to be flooing the white house and congress with notes on this. PLEASE PLEASE CALL ON ALL PEOPLE WHO USE THIS BLOG TO DO SO AND PLEASE CONTACT THE OTHER FOECLOSURE BLOGS TO DO THE SAME.

ProgressOhio Blog

Secretary Brunner: Please tell President Obama NOT to sign the Interstate Recognition of Notarizations Act
By Dave on October 5, 2010 6:46 PM
No Comments | Tell a friend
Categories: Action Alerts

On Monday, September 27, 2010, U.S. Senator Bob Casey (D-PA), on the Senate floor, asked that the Judiciary Committee be discharged from further consideration of a bill that would hurt consumers.

H.R. 3808 requires federal and state courts to recognize notarized documents from other states, including ones that contain electronic notarizations that are not subject to the same consumer safeguards of documents notarized in person. Some financial institutions are using electronic notarizations to process home foreclosure documents.

Sen. Casey asked that the Senate move forward with immediate consideration of the bill with unanimous consent that the bill pass with no other action or debate. The Senate passed the bill without amendment by unanimous consent. It now sits on the President's desk. I'm asking you to email or call the President at 202-456-1111 to ask him not to sign the bill.

H.R. 3808 is known as the "Interstate Recognition of Notarizations Act." It passed the House under a suspension of the rules in April 2010. It requires federal and state courts to recognize any notarization that is lawful in the state where the notary is licensed. Now, in one day, it passed in the Senate.

When I learned of it last Thursday, it sounded innocuous to me, but then I started looking at the timing of the bill. GMAC, owned by Ally, had just suspended its foreclosure actions in 23 states, including Ohio. I had already referred Chase Home Finance, LLC, on August 23, 2010, to the U.S. Department of Justice, asking it to review and investigate Chase's document notarization practices in home foreclosures (18,000 documents per month were being notarized by 8 people, along with other irregularities). I license notaries in the State of Ohio. Even though I don't have the power under state law to investigate or prosecute, I couldn't stand idly by without acting. That's why I'm asking you to email or call the President at 202-456-1111 to ask him not to sign the bill.

Last Wednesday, the day before I announced the DOJ referral, JPMorgan Chase announced it was having third party counsel review its document procedures for foreclosures. Just two days before, the U.S. Senate had rushed through H.R. 3808. Something didn't seem right. Since then others agree with me.

Notarizing a document requires the signer to make a fundamental statement, an acknowledgment, before a notary public. It is used for documents of great sensitivity or value, like when the title of a car is transferred on its sale or when a bank tells a court how much is owed on a note for a mortgage when it wants to foreclose.

Some states have adopted "electronic notarization" laws that ignore the requirement of a signer's personal appearance before a notary. A notary's signature is that of a trusted, impartial third party, whose notarization bolsters the integrity of the document. Many of these policies for electronic notarization are driven by technology rather than by principle, and they are dangerous to consumers.

President Obama was presented with HR. 3808 on Thursday, September 30, 2010. As of today, he has not signed the bill. Please join me in urging him not to sign the bill by sending an email or calling the White House at 202-456-1111.

Mortgages are now being used as backing for securities traded all over the world by financial institutions. When a mortgage goes into default, a "chain of title" (list of its owners) must be created. It's being discovered that many financial institutions have taken shortcuts in creating lawful chains of title that allow them to foreclose and take homes when they would not otherwise have the right under the law.

Banks demand we follow every letter of their contracts. We must demand they follow the law. It's that simple. Please join me in urging President Obama not to sign the bill by sending an email or calling 202-456-1111.

Thanks for working together,

Jennifer Brunner
Ohio Secretary of State

BECAUSE WELLS FARGO REFUSES TO DELAY FORECLOSURES, THEY WILL HAVE TO BE FORCED TO ... PROBABLY BY THE END OF OCTOBER. CONSUMERS WILL REFUSE TO DO BUSINESS WITH WELLS FARGO, PEOPLE WHO WANT TO KEEP THEIR HOMES OR INCREASE THEIR INVESTMENTS WILL, ANYWAY. GOODBYE WELLS FARGO, GOODBYE. YOU ARE SUCH COLOSSAL ASSES.

Wells Fargo Won't Delay Foreclosures
as JPMorgan, BofA Check Their Filings
By Dakin Campbell and David Mildenberg -
Oct 5, 2010 11:00 PM GMT-0500

Wells Fargo & Co. is standing by the accuracy of foreclosure filings and won’t follow competitors in delaying seizures, after an employee testified he signed documents for proceedings without personally reviewing records.

The bank said yesterday it doesn’t plan to halt repossessions because its “procedures and daily auditing demonstrate that our foreclosure affidavits are accurate.”

In a May 20 deposition, a Wells Fargo Home Mortgage employee said he signed 50 to 150 documents a day, including statements describing debts and borrowers, without personally confirming that all information was true. His testimony related to a civil claim against the bank filed in a Washington state court. A judge dismissed the case in June.

Mortgage firms have drawn fire from borrowers, lawyers and state officials for letting employees sign affidavits for court- monitored foreclosures without personally checking loan records. JPMorgan Chase & Co. and Bank of America Corp. last week delayed foreclosures to review the accuracy of their filings. Last month, Ally Financial Inc. said its GMAC Mortgage unit would halt evictions for a similar review.

The Wells Fargo employee said he relied on foreclosure attorneys and personnel in other departments to check files, according to a deposition transcript provided by Melissa Huelsman, the Seattle attorney representing the homeowner. The employee said he confirmed the date on the file before signing without verifying other information.

‘Out of Context’  

Those comments “should not be taken out of context,” Wells Fargo said in yesterday’s statement, e-mailed by a spokeswoman, Vickee Adams. The judge “reviewed Wells Fargo’s procedures, documents and declarations and summarily dismissed the borrower’s case, confirming that the foreclosure was valid,” the bank said in the statement.

Such a dismissal doesn’t necessarily invalidate testimony, said Peter Henning, a professor at Wayne State University Law School in Detroit and a former federal prosecutor.

“It’s not that the judge rejected the deposition, or found that the deposition was incorrect,” he said. “The firm probably went back into court and said ‘Here you go, you can inspect all the documents.’ Maybe that was enough.”

Wells Fargo is the second-largest servicer of U.S. home loans, according to industry newsletter Inside Mortgage Finance. The San Francisco-based bank handles roughly $1.8 trillion of residential mortgages, according to company filings. Bank of America, JPMorgan, Citigroup Inc. and Ally round out the top five. Through June, 92 percent of Wells Fargo’s mortgages were current, according to the statement.

‘How Do You Know?’

Andrew Yates, a Seattle-based lawyer representing the employee, didn’t return calls for comment. Adams declined to comment beyond the statement.

During questioning from Huelsman, the bank employee described his efforts before signing filings.

“So you’re simply signing the document that’s presented to you and you’re just making sure the date is correct?” Huelsman asked during the deposition.

“Correct,” the employee said.

“So how do you know when you’re signing this document that it’s true and correct?” Huelsman said.

“There are people that are responsible for” maintaining the paperwork, the employee said.

The employee said he oversaw 53 full-time staff and 15 contract workers, and that other supervisors within the department signed the same amount of paperwork. That would amount to each supervisor signing between 1,000 and 3,000 documents during 20 business days each month.

In a separate case in Florida, an employee at New York- based JPMorgan said in May that her team of managers signed about 18,000 documents a month. In a December deposition, an employee at Detroit-based Ally said he signed about 10,000 documents a month. Attorneys general in at least seven states including Texas, Florida and Ohio are investigating practices at Ally’s GMAC Mortgage unit.

Sunday, July 11, 2010

Daniel P. Stipano states National Banks Are Subject to State Laws When Foreclosing Mortgage Loans They Did Not Originate

Seal of the United States Office of the Comptr...
Seal of the United States Office of the Comptroller of the Currency, part of the Department of the Treasury. The design is the same as the Treasury seal with a Comptroller of the Currency inscription. (Photo credit: Wikipedia)


















NATIONAL BANKS ARE NOT ALWAYS EXEMPT

I am not a lawyer, please do not take my interpretation as legal advise.  I am only giving you my interpretation of what I've read.  Please seek the advise of an attorney. 

National Banks usually attempt to claim they are exempt from any state requirements of either registering with the Secretary of State or securing a license to conduct mortgage business in the state prior to filing a foreclosure action.  However, Daniel P. Stipano, Acting Chief Counsel, Comptroller of the Currency, Administrator of National Banks confirms in his letter below if the entity foreclosing on a piece of real property in a particular state did not originate the mortgage on the property they are petitioning to foreclose, if the entity is only acting as a servicer, or a trustee, or an assignee of a mortgage, the entity attempting to foreclose is subject to the laws of the State in which they are foreclosing.



January 14, 2005

Anthony J. Sylvester
Headquarters Plaza
One Speedwell Avenue
Morristown, NJ 07962-1981

Madeline L. Houston
Houston & Totaro
56 Broad Street, Suite 1
Bloomfield, N.J. 07003


Subject:           Wells Fargo Bank, Minnesota, N.A. v. Alberta Harris, et al.
                        Docket No. ESX-L-4676-02

                                                and

                        Bank One National Association v. Feinstein
                        Docket No. F-11450-00

Dear Mr. Sylvester and Ms. Houston:

This letter is in response to your letter dated December 13, 2004, seeking the views of the Office of the Comptroller of the Currency (“OCC”) concerning preemption of certain state laws in connection with claims and defenses asserted by the parties in the above-named cases.  You requested the OCC’s views at the direction of the Honorable Kenneth S. Levy, J.S.C., presiding judge in this litigation.  For the reasons stated below, based on the facts presented in the materials provided to us, we believe that neither 12 C.F.R. § 34.4 nor the National Bank Act preempts application of the state laws at issue here to loans simply because they were purchased and held by national banks acting as trustees in connection with issuance of the mortgage-backed securities involved in this case. 

Background


According to the materials provided with the December 13th letter addressed to me, Delta Funding made a mortgage loan to Alberta Harris in December 1999 (Wells Fargo Complaint, First Count ¶1), and subsequently assigned the mortgage to Wells Fargo “as Trustee for Delta Funding Home Equity Loan Trust 2000-1” (Wells Fargo Complaint, First Count ¶4).  Delta Funding made a mortgage loan to Dequilla Robinson in November 1999 (Bank One Statement of Material Facts Not in Dispute ¶3), and subsequently assigned the mortgage to Bank One National Association “as Trustee in Trust for the Registered Holders of Delta Funding Home Equity Loan Asset-Backed Certificates Series 1999-3” (Certification of Harold L. Kofman, Esq. ¶¶1, 3).  There is no indication that either Wells Fargo or Bank One made the original mortgage loans to Alberta Harris or Dequilla Robinson, nor does any party assert that Wells Fargo or Bank One has any other interest in these transactions except as trustees for investors in the mortgage-backed securities. 

As trustee acting on behalf of the investors in Home Equity Loan Trust 2000-1, Wells Fargo filed suit against Ms. Harris alleging that she had defaulted on the loan made by Delta and sought to foreclose on the real estate she had pledged as collateral for that loan (Wells Fargo Complaint, First Count ¶¶1-14).  As trustee acting on behalf of the investors in Delta Asset-Backed Certificates Series 1999-3, Bank One filed suit against Jack Feinstein, as Administrator Ad Prosequendum for the estate of Ms. Robinson, seeking to foreclose on the real estate she had pledged as collateral for the loan made by Delta (Memorandum of Law in Support of Plaintiff Bank One National Association’s Motion for Summary Judgment at 3-4).  Ms. Harris and Mr. Feinstein (“Defendants”), through counsel, opposed the foreclosure actions.  They alleged in counterclaims against the Banks (and third-party claims against Delta and others) defenses based upon alleged violations of the New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. 56.8-2, which, among other things, proscribes unconscionable practices in real estate transactions.  N.J.S.A. 56.8-2.  See Defendant’s Brief in Opposition to Plaintiff Wells Fargo’s Motion for Partial Summary Judgment at 3; Defendant’s Brief in Opposition to Plaintiff Bank One’s Motion for Summary Judgment at 4.  Asserting that federal law authorizing national banks to make and purchase real estate loans preempted the Defendants’ state law defenses under the CFA, Wells Fargo and Bank One, as trustees acting on behalf of the investors, sought partial summary judgment on the cross-claims. 

Discussion


Pursuant to 12 U.S.C. § 371, national banks may “make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to * * * such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.”  The OCC’s real estate lending regulations provide that, “[e]xcept where made applicable by Federal law, state laws that obstruct, impair, or condition a national bank’s ability to fully exercise its Federally authorized real estate lending powers do not apply to national banks.”  12 C.F.R. § 34.4(a). 

The Banks assert that application of the CFA is preempted because it would interfere with their power as national banks to purchase loans as authorized under 12 U.S.C. § 371, and that holding them liable for violations of the CFA as loan purchasers would be contrary to 12 C.F.R. § 34.4(a), which preempts state laws that interfere with national bank real estate lending authority.  

Section 34.4(a)(10) states that national banks “may make real estate loans under 12 U.S.C. § 371 without regard to state law limitations concerning * * * [p]rocessing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.”  12 C.F.R.§ 34.4(a)(10) (emphasis added).  However, in no sense, under the facts presented, can the Banks be viewed as making a real estate loan under 12 U.S.C. § 371 and 12 C.F.R. § 34.4.  The Banks did not originate the loans.  They did not fund the loans at inception.  Nor did they “purchase” the loans as part of any real estate lending program comprehended by the regulation.  Here, the Banks act as trustees for the benefit of investors in the trusts.  The substance of the transaction is that the investors, not the Banks, are purchasing the loans that have been made by Delta.  The investors own the beneficial interest in the loans held by the Banks as trustees.  And the effect of any liability for violation of the CFA ultimately falls on the investors.  Nowhere do the Banks allege that they themselves, as opposed to the trusts they represent, are exposed to liability for any violation of the CFA.  For all these reasons, 12 U.S.C. § 371 and 12 C.F.R. § 34.4(a) simply do not apply to the transactions by which the Banks acquired legal title to the loans in the circumstances at issue here. 

With respect to the activities of Wells Fargo and Bank One as trustees, the banks derive their power to act as trustees from 12 U.S.C. § 92a.  When state law conflicts with national banks exercising powers granted to them by federal law, the Supremacy Clause of the United States Constitution requires that the state law yield to the paramount authority of federal law, with the result that application of the state law to national banks is preempted.  The Supreme Court has explained this principle stating that it interprets “grants of both enumerated and incidental ‘powers’ to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.”  Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 32 (1996). 

As the Supreme Court demonstrated in its review of preemption cases in the Barnett case, Supremacy Clause principles animating conflict preemption have been expressed in a wide variety of phrases that do not yield materially different meanings, including “stand as an obstacle to,” “impair the efficiency of,” “significantly interfere,” “interfere,” “infringe,” and “hamper.” See Barnett, 517 U.S. at 33.  Thus, if application of the CFA to the loans held by the Banks as trustee were to obstruct, impair, condition, or otherwise interfere with the Banks’ exercise of fiduciary powers granted to them under federal law, the state statute would be preempted. 

Based on the facts presented, we do not believe that to be the case.  The Banks have not claimed that application of the CFA would impair their ability to act as trustee in these circumstances or that the state law otherwise interferes with the performance of their legal obligations as trustee.  Nor could they claim that having to respond to state law defenses to recovery on assets held in trust obstructs or impairs their power to act as trustee absent some indication that the state law infringes their authority, conditions their actions, or imposes a burden in a way prohibited by federal law.  In short, the Banks’ authority to act as trustees under federal law does not insulate the assets the Banks hold in trust for the benefit of investors from state law requirements otherwise applicable to those assets. 



We trust that the foregoing is responsive to your request.


Sincerely,

/s/ Daniel P. Stipano

Daniel P. Stipano
Acting Chief Counsel


Cc:       Hon. Kenneth S. Levy, J.S.C.
            212 Washington Street
            The Wilentz Justice Complex
            General Equity, 8th Floor
            Newark, New Jersey 07102


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Wednesday, July 7, 2010

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Tuesday, July 6, 2010


HOMEOWNERS HELPING HOMEOWNERS

THIS IS WHAT IT IS GOING TO TAKE, DEAR ONES, TO SAVE OUR HOMES. HOMEOWNERS HELPING HOMEOWNERS. WE CAN ONLY DEPEND ON GOD, AND ONE ANOTHER. FINANCIALLY, EMOTIONALLY, SPIRITUALLY, PHYSICALLY. AND IT'S GOING TO TAKE ALL WE'VE GOT.

All homeowners are encouraged to jump in, head first! Don't think too much, or you will be filled with doubt. Just decide, do you need help? If you need help, give it. Give what ever you've got. You will receive in direct proportion to what you give. That is just how things work.

You may share what help you need by e-mailing and a registry detailing the "needs" of all homeowners by state will be created. Each homeowner will be assigned a homeowner number, which will show in which state the homeowner lives, the date the homeowner made the need known, and the order in which the need came in on that particular day. Homeowner names will not be given out.

If you receive help and win your home, you give back, so others can stay in their homes. We all must start a place where homeowners can give what ever they have to give, time, money, energy, legal expertise, etc. to help all homeowners stay in their homes.

You may donate by clicking on the donate button, or by e-mailing and sharing the details of what you would like to do for homeowners. The gifts you share will be published, and the homeowner giving the gift will be assigned a homeowner number, which will show in which state the homeowner lives, the date the homeowner made the gift, and the order in which the gift came in on that particular day. Homeowner names will not be given out UNLESS A HOMEOWNER GIVES WRITTEN AUTHORIZATION APPROVING IT.

I always prefer to thank someone by name. I think it makes the entire process of giving gifts, and helping each other a much more personal and rewarding experience.   However, because the protection of all homeowners who want to offer their help or who need others help, privacy of all homeowners will always comes first.

Of course, if a professional is offering their services free of charge to homeowners on a case by case basis, such as an attorney, or a loan  modification expert, etc., definitely their names will be posted, and their services will be allowed space and acknowledgement as thanks for their tremendous gifts.
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DO YOU NEED HELP TO AVOID FORECLOSURE?

If you would like to receive information on how you might avoid the foreclosure of your home, please e-mail me your name, address, and phone number. Someone from our office will be in touch right away to assist you. With Warm Regards, Kelly L. Hansen, HOMEOWNERS HELPING HOMEOWNERS, ctsmyhon@yahoo.com
Be happy, healthy and prosperous, but most of all, be blessed.
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Kelly L. Hansen


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Kelly L. Hansen
HOMEOWNERS HELPING HOMEOWNERS FOUNDATION
33605 W. 88th Street
De Soto, KS 66018
913-269-0399 Phone
888-881-2349 Fax
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