(St. George, UT) June 5, 2010 – A court order issued by Fifth District Court Judge James L. Shumate May 22, 2010 in St. George, Utah has stopped all foreclosure proceedings in the State of Utah by Bank of America Corporation, ; Recontrust Company, N.A; Home Loans Servicing, LP; Bank of America, FSB; www.envisionlawfirm.com. The Court Order if allowed to become permanent will force Bank of America and other mortgage companies with home loans in Utah to adhere to the Utah laws requiring lenders to register in the state and have offices where home owners can negotiate face-to-face with their lenders as the state lawmakers intended (Utah Code ‘ 57-1-21(1)(a)(i).). Telephone calls by KCSG News for comment to the law office of Bank of America counsel Sean D. Muntz and attorney Amir Shlesinger of Reed Smith, LLP, Los Angeles, CA and Richard Ensor, Esq. of Vantus Law Group, Salt Lake City, UT were not returned.
The lawsuit filed by John Christian Barlow, a former Weber State University student who graduated from Loyola University of Chicago and receive his law degree from one of the most distinguished private a law colleges in the nation, Willamette University founded in 1883 at Salem, Oregon has drawn the ire of the high brow B of A attorney and those on the case in the law firm of Reed Smith, LLP, the 15th largest law firm in the world.
Barlow said Bank of America claims because it’s a national chartered institution, state laws are trumped, or not applicable to the bank. That was before the case was brought before Judge Shumate who read the petition, supporting case history and the state statute asking for an injunctive relief hearing filed by Barlow. The Judge felt so strong about the case before him, he issued the preliminary injunction order without a hearing halting the foreclosure process. The attorney’s for Bank of America promptly filed to move the case to federal court to avoid having to deal with the Judge who is not unaccustomed to high profile cases and has a history of watching out for the “little people” and citizen’s rights.
The legal gamesmanship has begun with the case moved to federal court and Barlow’s motion filed to remand the case to Fifth District Court. Barlow said is only seems fair the Bank be required to play by the rules that every mortgage lender in Utah is required to adhere; Barlow said, “can you imagine the audacity of the Bank of America and other big mortgage lenders that took billions in bailout funds to help resolve the mortgage mess and the financial institutions now are profiting by kicking people out of them homes without due process under the law of the State of Utah.
Barlow said he believes his client’s rights to remedies were taken away from her by faceless lenders who continue to overwhelm home owners and the judicial system with motions and petitions as remedies instead of actually making a good-faith effort in face-to-face negotiations to help homeowners. “The law is clear in Utah,” said Barlow, “and Judge Shumate saw it clearly too. Mortgage lender are required by law to be registered and have offices in the State of Utah to do business, that is unless you’re the Bank of America or one of their subsidiary company’s who are above the law in Utah.”
Barlow said the Bank of America attorneys are working overtime filing motions to overwhelm him and the court. “They simply have no answer for violating the state statutes and they don’t want to incur the wrath of Judge Shumate because of the serious ramifications his finding could have on lenders in Utah and across the nation where Bank of America and other financial institutions, under the guise of a mortgage lender have trampled the rights of citizens,” he said.
“Bank of America took over the bankrupt Countrywide Home Loan portfolio June 3, 2009 in a stock deal that has over 1100 home owners in foreclosure in Utah this month alone, and the numbers keep growing,” Barlow said.
The second part of the motion, Barlow filed, claims that neither the lender, nor MERS*, nor Bank of America, nor any other Defendant, has any remaining interest in the mortgage Promissory Note. The note has been bundled with other notes and sold as mortgage-backed securities or otherwise assigned and split from the Trust Deed. When the note is split from the trust deed, “the note becomes, as a practical matter, unsecured.” Restatement (Third) of Property (Mortgages) § 5.4 cmt. a (1997). A person or entity only holding the trust deed suffers no default because only the Note holder is entitled to payment. Basically, “[t]he security is worthless in the hands of anyone except a person who has the right to enforce the obligation; it cannot be foreclosed or otherwise enforced.” Real Estate Finance Law (Fourth) § 5.27 (2002).
*MERS is a process that is designed to simplifies the way mortgage ownership and servicing rights are originated, sold and tracked. Created by the real estate finance industry, MERS eliminates the need to prepare and record assignments when trading residential and commercial mortgage loans. www.mersinc.org
UPDATE UTAH FORECLOSURES
Federal vs State Rules Governing Bank of Americas Case to be Argued Before Federal Judge Clark Waddoups Thursday June 10th, 2010
Injunction Stopping ALL Foreclosure Proceedings by Bank of America; Recontrust; Home Loan Servicing et al
My husband and I would like to share our story of how our mortgage was messed up for two years with BoA after being taken over from TB&W when they were shut down. We went everywhere for help including our AG. One email and our account was fixed in three days. Feel free to contact us if you would like our story.
I would like your story. Thanks,
Please feel free to email me so we can contact you.
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Thank you! I will use it as Notice to the Court in Florida in upcoming case.
I need to share my story, but I need to do it in writing. Is there an address I can send it too? I copied your last posting and mailed it to all the Courts in my county, because, I went thru all with what you described. The locks in my home were changed on a Friday by the now new owner “Deutsche Bank” two (2) days after the Trustee Sale, while we were at the store, my tenant sleeping in her unit, and all 4 dogs in the backyard. Being a weekend made it even worse. The real estate listing agent who was handling the property, who buys all the “nicest” foreclosed home in the area, managed to convince the lender, thru comparables, that my property was only worth $51,000.00 although it was worth $269,000.00,
Leann that is wild… how can they change locks on TENANT when they have 90 days by law before they can be removed…… was notice posted? sounds like you have some real jerks handling things.. are you going to name the realtor in the lawsuit you file. did they even file forcible detainer? wowsers. are you involved in any forums?
I just wanted to take the time to thank you. You are wonderful. I have been reading your posts for quite some time now, and you are a wealth of information! You are really on the ball. I was going to say that for someone who is not an attorney, … but that would be like an oxy-moron. Hell, attorneys don’t work as hard as you do!
The “banks” are nothing short of the same as a “rapist!” a “rapist” goes to jai! The “banks” ( CEO’s) are getting off “light” with just the injunction! All States should follow Judge Shumate and “stop banks from “rape!” otherwise called, “foreclosures!” and, the State should place heavy penalties on “banks” & “lenders” that have done these outrageous “rapes”…that banks call “foreclosures!” Judge Shumate is a real “hero” to “protect” the people in his state of Utah! Now, all other State Judges need to follow the same type of “legal protection” for the folk in their States! A “legacy” is always remembered!
My motto, “fight back!”
THANK you for this great post. It fits so perfectly the picture of what is happening and is understandable to people. I will post a link to this on my blog which is not as detailed as yours (link to blog by clicking on my name). I am trying to give a FACE to the word FORECLOSURE as most have no clue what it means or feels like. I try to put in information and this is just toooooo perfect. I am hoping in our situation that the forcible detainer judge (commissioner) will overrule her own decision instead of my going to appeal. HERE in ARIZONA, they just assume a foreclosure was done lawfullly, so when they show up in court with the trustee’s deed of sale (transfer really as there was no sale that I can find) then they are PRESUMED to be new owners and there is no argument – you are forcibly evicted in 5 days or forced to negotiate time out with the “new owner” (bank sells it to themselves).
This is a direct result of the behind the scenes work of the Gaurdians of the Republics and Tim Turner, who have the support of the military enforcing these changes.
More people need to get educated on what actually happens with the creation of a mortgage/deed. Since Federral law prohibits banks from lending their own money, and cannot show loans in excess of 10% of their assets, your deed enables to the bank to receive a deposit of ten times the amount of the deed. Your signature creates this new money and it is listed on their books as your asset. In other words, the bank lends you your own money, is paid in full on the loan immediately, and fraudulently has you believe that they assumed “risk” in the loan which is why they demand interest. All of these facts can be researched in the Federal Reserves own publications, and in relevant historical case law. Banks will never show their true accounting in a court of law or all of this would be revealed. It is also noteworthy that Congress has asked to see the books of the banks who received emergency bailouts, and have not seen those books even after all this time.