Bank of America, Recontrust to Utah: Stick State Law Up Your Ass, but OCC Disagrees

The Market Ticker – Bank of America to Utah: Stick State Law Up Your Ass

Seriously, that’s what they said:

But Bank of America contends that federal banking laws, not state law, governs its conduct, and it forecloses under its own name. That will continue to be the practice of acting as its own foreclosure trustee, a bank spokeswoman said.

“As a national bank, ReconTrust’s authority to act as trustee is derived from federal law (the National Bank Act),” said Jumana Bauwens, a spokeswoman for Bank of America, in an email in response to a query about the new Utah law.

Corporate business charters are a State matter.  If you’re domiciled in a different state you still need to file as a foreign corporate and seek permission to operate in the State.

The State can revoke that charter which would instantly render conducting business in the State (e.g. maintaining an office, employing people, etc.) unlawful.  It can then close any in-state entity doing business as what is now an unlicensed and unlawful enterprise by force, literally chaining the doors closed if necessary.

To the State of Utah: Where are your balls?

I want to know if you can find them with both hands and a flashlight, or if you’re going to knob-job Bank of America and screw your citizens while making a lot of worthless noise.

We, the people, are watching.

Discussion below

For some more background on this see…


Utah Foreclosures | BofA’s Unit ReconTrust Violates Law, State Says

Utah Class Action Against ReconTrust/Bank of America: Two Federal Judges Recuse Themselves

Utah – ReconTrust and Bank of America Named in Class Action Foreclosure Fraud Lawsuit

UPDATE – Bank of America Utah Foreclosures – Judge Clark Waddoups Rehears Arguments to Remand Cox case to State Court

Bank of America Utah Foreclosures – Judge Clark Waddoups to Rehear Federal Jurisdiction Dispute TODAY

Bank of America Utah Foreclosures – New Filing May Persuade Judge Waddoups to Set Aside Restraining Order

Notice of Appeal Filed – Stay of Court Order to Vacate Injunction Stopping Bank of America Foreclosures in Utah Requested

Recontrust / Bank of America Foreclosure Injunction Dissolved by Federal Judge

POW!!! Barlow Appeared to Hold His Own Against the Legal Team of Bank of America – Utah Foreclosures Remain on Hold Pending Judge’s Decision

UPDATE UTAH FORECLOSURES – Federal vs State Rules Governing Bank of Americas Case to be Argued Before Federal Judge Clark Waddoups Thursday

Bombshell – Judge Orders Injunction Stopping ALL Foreclosure Proceedings by Bank of America; Recontrust; Home Loan Servicing; MERS et al

But regardless of what BofA / Recontrust says about federal banking laws, not state law, governs its conduct, they are disputed by their own regulator, the OCC.

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).

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.

You can check out the letter in full below…



No Federal Preemption by a Trustee of a Mortgage Backed Security Trust from Senior Counsel of the Office of the Comptroller of the Currency
[scribd id=34676415 key=key-1g670yqhyn75qwrshpx4 mode=list]

12 Responses to “Bank of America, Recontrust to Utah: Stick State Law Up Your Ass, but OCC Disagrees”
  1. Ron Moss says:

    Constitutionally speaking, Congress shall have power to coin money and regulate the value thereof
    Not The mafia Bankers. That may create a different set of problems but at least we could fire the bastards. Ron Paul looks better every year. He savies their intentions like Andrew Jackson did when he wrote his 6th annusl address, Now eith Ron Paul or Michelle Bachmann can handle it>

  2. Tim Bryant says:

    What I find amazing by BofA’s argument is that they are the ones bringing the action to foreclose in state court. Under their argument, the states have no authority, so only a federal court could decide the matter. This would also make non-judicial foreclosures void, as the 14th amendment forbids such. There is a much higher standard in federal court than in a state court, especially FL and CA…no offense. They would get their asses handed to them on almost every occasion.

    Going a step further, ReconTrust was Countrywide’s company, not BofA’s. Given that BofA claimed no successor liability for Countrywide, in CA court, BofA should prove that they are a successor in interest to ReconTrust, before even addressing the issue.

  3. l vent says:

    These evil megalomaniac bastards do not realize one thing, there are real Americans on this side of their scheme for world domination. Those on FOX and CNN and MSNBC, CNBC and many politicians who are not speaking the truth or simply ignoring us, or fighting against the people, we know who they are and they are losing the country. No politician can go this alone. We all have to get active to fight this foreign multinational tyranny. The fraudclosure fight is one way to do it. It is a good fight and there will be many more to come. This beast is not going to be easy to kill. This beast is drunk with a sick need to own and control everyone and everything. This is all about greed and world domination. This about a few hundred elite and their sick, demented need to own and control all of the wealth of the world and they want every nation to be powerless and surrender to them. They never have enough. Debt is the tool they use to conquer. National Soveriegnty will prevail. They can stick the unsecured debt they create up their illegal, fraudulent asses. We own our homes free and clear because of the illegal and unconstitutional Ponzi Scheme swindle and heist. GOD BLESS AMERICA!!!!!!!!!!!!!!!

  4. Vale says:

    I want to know why the media is ignoring this RAPE of the American homeowner? Why isn’t Bill O’Reily and FOX looking out for us? Why is OBAMA ignoring this crisis after bailing out AIG, GM, Freddie and Fannie. This is all BULLSHIT!

  5. JIm Bethea says:

    These large banks have always tried to force the OCC to take away each state authority to control the fraud that is going on in their own territories. These crooked banks want to use Fed laws to excape when they are pinned to the wall by state laws, however, they want the state laws to prevail when it comes to using state laws/ regs to allow usury interest rates on credit cards and adjustable rate mortgages.

    I cannot remember the lady’s name at this time but sometimes around 2004 she was head of the OCC and tried everything in her tool box to take all state powers away and let federal rules dominate any court actions, but still allow them to screw the states’ citizens with out of control credit card interest. Banks like Chase and Bank of Am were calling their headquarters states like South Dakota and Delaware in their metal – brick wall fronted buildings, while operating out of skyscrapers in California and New York????????????

    Fraud should be dealt with wherever it is found, be it state or federal and allow for now escape hatches via use of courtroom symathics.

    The preceeding court venue argument should be null and void because via the use of MERS or any type of trustee BS would mean that the mortgage and promissory note were definitely separated making them unstable and unenforcable according to the US SUPREME COURTS DECISION………

    I pray for the day when the Fed Res, Bank of America, Chase Manhattan and Wells Fargo are conviced of their mass fraud and then no longer exist………TOO BIG TO FAIL — BS —- SO BIG THAT THEY GET CONGRESS TO DO WHAT THEY WANT DONE FOR THEM WHETHER DIRECTLY OR BY USING THEIR OWNERS THE FOREIGN OWNED FEDERAL RESERVE TO BS CONGRESS FOR THEM………It’s all the same gang/ cartel of banksters from Europe who has controlled our economy and ruined our banking system since 1913…….

  6. Hell NO - No More Bail-Outs or FALSE Modification Programs (Ahem or A-hamp) says:

    Oh, my.

    You AZ homeowners need to dig out your Deed and your Note to see if you have a valid LENDER named on the face of the documents.

    Some of the firms involved initially DID exist but then there are the ones that NEVER did exist. That means those loans that specify “America’s Wholesale Lender – A Corporation” and also specify the corporation to be a NEW YORK corporation, need to hire a competent attorney and inform him that not only did the company not exist when the loan was originated, there can be NO WAY that AZ or any other state registered ‘AWL’ as a business that could do business in the state, nor world they have been registered as a licensed LENDER in any state.

    The four corners of you loan does not identify your LENDER.

    What has been occurring is that CountryWide has been claiming that they could register a “D/B/A” with the various states. IF your loan cites ‘CountryWide D/B/A America’s Wholesale Lender” on it’s face, then CountryWide can use the D/B/A.

    For the loans that do NOT have any such designation and which clearly state that the LENDER is a NEW YORK CORPORATION that is “America’s Wholesale Lender”, they are just full of it and have as yet not had a recent major case hallmark that point.

    If they were able to have used a D/B/A to ‘fix’ the problem with these “AWL CORP” loans, then CountryWide would not have LOST the Pagano and the Silverstein cases where appeals courts ultimately determined that CountryWide had issued the mortgages in nothing more that a TRADE NAME and tried to foreclose in that tradename. CountryWide learned they could not do so. So their newer claim is that they have the “D/B/A’.

    Well, now if they could have used that “D/B/A” to cure those TRADE NAME loans at the time of the two prior decisions, they would have. These loans today with the “America’s Wholesale Lender Corporation” LENDER are no different than the loans involved in the Pagano and the Silverstein cases. The only difference is that they are managing to fool attorneys or people have not found an attorney who is up to the argument.

    IF you research the NY state filings, you will find a company by that name incorporated on 12/16/2008. The principal person is a CANADIAN apparently. Also note that by the time that later company was incorporated, CountryWide had been taken over by Bank AmeriFRAUD. The ‘AWL Inc” that DOES exist in NY State boxes the fraudsters in a bit. It is a company that clearly was first registered TOO LATE. But it takes the NY corporate registration slot away from any other manipulation to make it appear that the company did exist at the correct time. For example, it keeps the fraudsters from simply trying to confuse people with a rename of some other NY corporation to fit the name shown on these loans.

    By not having the named LENDER in existence at any time, these loans were a fraud from the beginning. Assignments are being bluffed, using MERS.

    MERS is being used to sign as the NOMINEE for a corporation that NEVER EXISTED.

    When are people going to notice that these loans should NEVER have even have gotten a MIN number from MERS? Ameica’s Wholesale Lender never had a membership in MERS.

    MERS can NOT assign for a company that does not exist, yet Litton has tried to assert that very ability with the assignment of my loan.

    A loan that identifies a fraudulent name of the LENDER should not be allowed to be in any of the investment trusts.

    I am wondering how soon the SEC is going to start receiving complaints of various CWABS, CWALTS, CWMBS, etc., that need to have loans disgorged or ejected (I’m not sure which term is correct).

    I am not an attorney but Neil Garfield has posted information on his Living Lies website that points out the AWL Corp loans as ‘wild’ loans.

    • Hell NO - No More Bail-Outs or FALSE Modification Programs (Ahem or A-hamp) says:

      I meant to say Utah in place of AZ.

    • Wayne says:

      Ok …. You tell me where the hell in AZ is there a component F’n Lawyer? I have spent a small fortune just to talk with a lawyer only to find out, I know more then he did. (thank you Internet and YouTube) I do even have Countrywide on my Deed listed and the original lender had their license pulled for fraudulent practice. They don’t even exist anymore. I personally have not paid my mortgage in over 2 years and threats from the Banksters of America keep coming yet they don’t dare to foreclose on me. So looking for a Lawyer is so F’n tiring.

  7. Thrift Looting says:

    Can we please eliminate the OCC? Whose country is this?

    • l vent says:


  8. Readdocs says:

    Banks involved in this have been taking for granted for over 10 years they are above the law, and their sloppy
    paperwork, procedures and greed are finally catching up with them. BoA is pissy because they’re being held
    responsible finally in one state, for what they’ve been doing. The state law simply states when they appear in
    some judges court they better have ALL of the original paper work with them when they appear in court. The
    fraud they’ve been perpetuating in the state of Utah has come to an end. If need be the state of Utah should
    yank BoAs’ charter to do business in that state.

  9. Jason Werner says:

    Pretty much everybody agrees that 2 + 2 equals 4, but the you can tell who the bad guys are by the few who say it equals 5 or whatever; I mean, what are the odds that the only people who do not see the banks as fraudster artists are the people they pay off.

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