New York Bankruptcy Lawyer Triumphs Over Shoddy Mortgage Lender Practices
Manhattan condominium owner, victim of shoddy record-keeping at mortgage giant JPMorgan Chase, fights back and wins with the help of New You bankruptcy lawyer David B. Shaev.
New York, NY (PRWEB) March 4, 2010 — New York homeowners filing for bankruptcy are breathing a sigh of relief, knowing that the courts are on their side. In a scathing opinion issued recently by US. Bankruptcy Court Judge Martin Glenn, JPMorgan Chase Bank was effectively denied payment of their entire alleged mortgage claim because they refused to prove their ownership of the loan. The case is In re Minbatiwalla, Chapter 13 Case No. 09-15693 (MG) (Bankr.S.D.N.Y. 2009).
 “The homeowner won the battle today. But with so much mortgage servicer abuse in bankruptcy, the war wages on.” – David B. Shaev, New York Bankruptcy Lawyer  |
Kerman J. Minbatiwalla, a Manhattan homeowner, filed for Chapter 13 bankruptcy to repay his debts over time and save his East Side condominium. Though he was current on his mortgage at the time his case was filed, Minbatiwalla is the poster child for a system gone horrible wrong at the hands of shoddy record keeping at his mortgage company.
Minbatiwalla had two mortgages with various JPMorgan Chase entities. On filing of his bankruptcy, Chase Home Finance, LLC filed papers with the court on behalf of U.S. Bank as well as an unknown mortgage trust asking for payment of pre-bankruptcy arrears; a second claim was filed by JP Morgan Chase Bank N.A. also demanding payment of arrears.
Minbatiwalla’s attorney, Manhattan bankruptcy lawyer David B. Shaev, looked on both documents with suspicion. “My client wants to pay his mortgage, but now he doesn’t know who is the rightful recipient of the money. There was nothing but a summary attached, with nothing to indicate which party was which, or to whom the monies should be paid,” Shaev said. “A string of mortgage trusts and servicers only confused the situation, and we needed to be sure that the property parties would be paid.”
Though Shaev demanding more information on the transfer of the loans and the relationships of the parties, he was met with no response. Undeterred, he demanded that the claims for payment be denied in full.
Bankruptcy Court Judge Martin Glenn, in a 26-page written opinion, found that Chase’s failure to attach documentation and respond to the Shaev’s information requests is fatal to their claims for payment. “Here it is not clear whether the claim was assigned to Chase, or whether Chase was the original party on the mortgage and the note,” Glenn wrote. “[The Debtor requested additional information from the claimant in October and has received no documents.”
4closureFraud
In Re Minbatiwalla Chapter 13 Case No. 09-15693 (MG) Y 2009)
How can I find out who own my Loan
I love what you guys do and support your work. Accordingly, please excuse me for taking issue me for taking issue with your characterization of the bankruptcy decision: The case is In re Minbatiwalla, Chapter 13 Case No. 09-15693 (MG) (Bankr.S.D.N.Y. 2009). The case is noteworthy, if anything, for being un-noteworthy. Its sheer modesty in contributing to mortgage defense is stunning. The court held that the debtor’s motion to dismiss the claim was granted without prejudice. The motion was granted because of the bank’s failure to provide documents timely and properly requested by the debtor to support the proof of mortgage claim. Because the dismissal was “without prejudice”, the bank is free to refile the claim with the requested documents so long as the period for filing claims with the bankruptcy court has not been tolled. The court then disallowed legal costs to the debtor even though the debtor had prevailed on the motion and the bank had failed to produce documents showing it owned the debt. I see nothing here to celebrate.
The court went on to add a scholarly discussion of the conflicting case law concerning what needs to be shown to back up a claim of mortgage debt. The court ruled that the documents requested by the debtor fell within the ambit of required documentation set forth by the court. Big deal! What amazes me, instead, is the reluctance of so many other jurisdictions to require the bank to show it owns the loan before releasing it from the bankruptcy to pursue foreclosure against the debtor.
More importantly, this case illustrates how decisional law evolves in an iterative process. Here the judge, in the best tradition of adjudication, has opted to decide the case on the narrowest grounds possible. The case to me illustrates how little the courts have been willing or able to do to defend the rights of mortgage debtors because of the institutional limitations of the judicial process. Add to this the widespread practice of overburdened judges handing down summary judgments in both contested and uncontested cases without ever reading the pleadings, motion and other court documents in the file and it becomes transparently clear that the courts have failed to protect the rights and liberties of the homeowners and have capitulated en masse to the imperatives of Wall Street.
It is precisely this kind of decision that makes me begin to realize that too much reliance has been placed inappropriately in defending against foreclosure in court. There has got to be another way to induce the lender to come to the bargaining table and accet an alternate dispute resolution. So far , the judges presiding at foreclosure proceedings have not permitted the means to defend themselves and negotiate for an alternate dispute resolution.
Title Defects and the Ticking, Title Time Bomb
Richard F. Kessler
The two Florida Appellate Court decisions requiring trial court judges to read, inspect and verify documents in each case prior to adjudicating foreclosure only identify the tip of the iceberg.
Today, millions of American families are losing their homes due to mortgage foreclosure. Tomorrow millions of American families may lose their homes because they bought a home that was once foreclosed.
The incomplete foreclosure judgments routinely being handed down by courts in all 50 states will result in a massive title problem which will make foreclosed homes impossible to sell or finance and unable to obtain title insurance. The two Florida Appellate Court decisions ruling that judges are responsible for rendering judgments based upon complete and correct documentation only identify the tip of the iceberg. By allowing properties to go to foreclosure based upon defective, deficient and spurious documents, the judges are inadvertently creating a ticking, title time bomb which will cause millions of homes being foreclosed to have a cloud on title.
Almost three million homes were in foreclosure in 2009. More than 3 million homes will be in foreclosure in 2010. It is estimated that one out of seven home mortgages is currently in default. The sheer volume of foreclosure has overwhelmed judges and our judicial system. The reaction has been to clear dockets by judges failing to read the pleadings and motions or check the information submitted by the foreclosing creditor instead rubber stamping foreclosure orders in rocket docket proceedings. By treating foreclosure proceedings like an assembly line manufacturing foreclosure judgments judges have created millions of homes as ticking, title time bombs set to detonate at some future yet undetermined date.
The volume of foreclosure has become so great that China, a large player as an investor in securitized mortgage certificates, has acquired a major share in the ownership of Florida’s largest foreclosure mill whose stock is traded on NASDAQ. This company has been named over and over again as a principal source of incomplete, incorrect and spurious documentation. The CEO stated that he looked forwards to increasing foreclosures in the United States and the economies of outsourcing preparation of legal documents to the Philippines.
The cloud on title is created by the failure of the foreclosing court to address the following matters:
1. To make certain that all parties in interest who are of record have been named and joined in the foreclosure action;
2. Verify the chain of title of the mortgage; and
3. Fail to adjudicate and determine the following matters:
(a) Whether the party bringing the foreclosure is legally entitled to foreclose;
(b) Whether the mortgage payments alleged to have been unpaid were in fact paid; and
(c) Whether securitization of the mortgage required the prior, written consent of the borrower.
Each of these matters can be used to bring a suit brought subsequent to foreclosure, among other things, for wrongful foreclosure and seek not only monetary damages but a reconveyance of the home to the original borrower. Recent developments in the title insurance industry already are responding to title problems resulting from incomplete foreclosure, The title companies all offered additional title insurance coverage to protect against the claims of third party creditors who has not been named or joined to the foreclosure industry. For example, a plumber may have field a lien against the property but not included in the foreclosure proceedings or foreclosure judgment. Accordingly, the plumber’s lien is still of record and remains unpaid. The additional insurance agreed to deal with this problem and get the lien removed. In the past, failure to join a party in interest was rare. Today, it has become so common that the leading title insurers, First American and Fidelity, have discontinued the coverage. It is but a question of time until the other shoe drops with respect to the other title defects.
As a result of judicial misconduct, incomplete judgments also will create enormous liability for the county or other unit of local government conducting the foreclosure auction or the trustee in a deed of trust jurisdiction. In Sarasota and many other places throughout the county, the party conducting the auction sale does not disclose title defects which are known or of public record and therefore deemed to be known. In these jurisdictions, the duty to disclose such defects is unacknowledged and, accordingly, undischarged. Millions of purchasers at auction of foreclosed property with a known title defect will have a potential cause of action against the unit of local government or the trustee for breach of the duty to disclose known defects at a foreclosure auction.
“Haste makes waste” as an idiom was first recorded in 1575. Based upon recent evidence, America’s judicial foreclosure has yet to learn this lesson while the rest of us will be expected to foot the bill for their tuition.
Our company, Documentary Clearing House and Associates, is about to issue a press release announcing a new product to make use of title defects in the defense of foreclosure without involving the court or judge hearing the case.
Thank you for sharing your valuable response.
I ask you and every consumer to Petition Redress of Grievancess from their Authority in the House and both Senators and State Assembly as in New Jersey seeking injunctive relief through enforcment of laws ignored by by Banks which harmed the economy. The law serves a purpose. Under Article II, President Barak Omba, Executive Branch with powers to enforce laws and Executive Decision to bring before the Supreme Court of United States first impression case and for every case where the property was sold to a ‘Loan trust’ with its own Identification # in the US or in a foreign Jurisdication like the Cayman Islands, that the party responsible for not perfecting the chain of title in accordance with federal and state laws provide satisifaction of mortgage. The note was sold to the trust. The intent of the Reconstituted Servicing Agreement in the event of a dafult trigger to file documents to cure title defects thru bankruptcy or foreclousre needs to stop now. The welfare of the nation can be returned to the people one mortgage at a time.
Thank you.