19 July 2011

KingCast/Mortgage Movies affiliate film makers head for the festivals and celebrate the dawning of a new era with Keys for Cash and Nevada Supreme Court denials of standing.

Say..... Tyler... did you serve that Keys for Cash note to Joe and Diane Morell after Mortgage Movies put this movie and journal entry up showing the Procedural and Substantive Due Process violations occasioned upon them by Commissioner Mondo in their Unlawful Detention Salem Witch Trial? Why is your client changing its position? The Morells inform me that they have filed an Appeal on that travesty of Justice as their Substitute Trustee was denied the Right to speak at trial. Let's see where that leads as neighboring Nevada "just said no" to unproved claims and lack of standing. Read the jump page for that.


Meanwhile some KingCast/Mortgage Movies affiliate film makers are busy between Boston and NYC, wrapping up a movie that could very well be the darling of certain film festivals next year. I'm interviewed yes, and so is the Boston area lawyer in this picture as he relaxes and spills the beans from his backyard, but we are small potatoes next to the headliners..... and that is all I'm going to say at this point but when they are ready to go public, you will read about it -- and watch trailers first -- right here.
For now you can read the Mortgage Movies Summation of the Nevada Supreme Court cases of Pasillas v. HSBC Bank USA, 127 Nev. Adv. Op. No. 39 (July 7, 2011) and Leyva v. National Default Servicing Corp., 127 Nev. Adv. Op. No. 40 (July 7, 2011): right here.... as I was tardy getting my Ethics Complaint out against NH Judge Diane Nicolosi and foreclosure mill lawyer Shawn Masterson I took the time to add this language into the final version and I'm headed down to the post office right now. Heck I might even fire up the Triumph and head to Manchester to personally deliver it to Trustee Sumski, that will make a fun movie......


But wait, Neil Garfield just gave me another boost, so I am emailing Florida Ethics Attorney Tim Chinaris:


A Bar staff opinion held it makes no difference whether the case was open or closed or what stage an open case is at in terms of the lawyer’s duty. The opinion said that under Rule 4-3.3 (Candor Toward the Tribunal), the improperly prepared affidavits constitute false evidence, and the lawyer has a duty to disclose that to the courts.


.....In the Ingress case there is a "Linda Green" Assignment, and to my knowledge Wells Fargo has failed to produce an original wet ink note or mortgage. Ms. Ingress is off to Federal Court and State Court with a Motion to Quiet Title, I may capture some video of her filing in State Court and will post her docs soon. Watch Attorney Shawn Masterson as he testilies to the bench in hushed tones that I caught on DVD and amplified for your viewing (mis)pleasure.



Now then on to Nevada:
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......And yet there is more as Nevada Courts join the wave of the future in holding banks, nominal lenders, banks and servicers accountable:

Pasillas v. HSBC Bank USA, 127 Nev. Adv. Op. No. 39 (July 7, 2011):
http://www.nevadajudiciary.us/index.php/advancedopinions/1163-pasillas-v-hsbc-bank-usa-

Respondents failed to meet the mediation program’s statutory requirements:
            
The Pasillases argue that respondents failed to meet the program’s requirements—the document requirement because respondents failed to bring a complete mortgage note and failed to provide assignments of the note and deed of trust, and the loan modification authority requirement because they failed to have someone present at the mediation with the authority to modify the loan.  We agree……

……Here, the mediator’s statement and his addendum to that statement, which were provided to the district court in the Pasillases’ petition for judicial review, clearly set out respondents’ failure to bring the required documents to the mediation and to have someone present with authority to modify the loan.  Additionally, respondents do not dispute that they failed to bring all the required documents to the mediation.[9]  Although respondents argue on appeal that their counsel at the mediation “had the requisite authority and/or access to a person with the authority to modify the loan,” they do not controvert the mediator’s statement that their counsel claimed at the mediation that additional investor approval was needed in order to modify the loan.  The record before the district court demonstrates that respondents failed to meet the statutory requirements.  Nonetheless, respondents argue that the district court’s conclusion that sanctions were unwarranted did not constitute an abuse of discretion because, despite the failures noted above, they mediated to resolve the foreclosure in good faith.  We disagree……

……Because, in this case, the foreclosing party’s failure to bring the required documents to the mediation and to have someone present at the mediation with the authority to modify the loan were sanctionable offenses under the Foreclosure Mediation Program, the district court abused its discretion when it denied the Pasillases’ petition for judicial review and ordered the program administrator to enter a letter of certification authorizing the foreclosure process to proceed. 

Therefore, we reverse the district court’s order and remand this matter to the district court with instructions to determine the appropriate sanctions for respondents’ violations of the statutory and rule-based requirements.

and:

Leyva v. National Default Servicing Corp., 127 Nev. Adv. Op. No. 40 (July 7, 2011):

       Here, both the statutory language and that of the FMRs provide that the beneficiary “shall” bring the enumerated documents, and we have previously recognized that “‘shall’ is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature.”  S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992); see also Pasillas, 127 Nev. at ___, ___ P.3d at ___.  The legislative intent behind requiring a party to produce the assignments of the deed of trust and mortgage note is to ensure that whoever is foreclosing “actually owns the note” and has authority to modify the loan.  See Hearing on A.B. 149 Before the Joint Comm. on Commerce and Labor, 75th Leg. (Nev., February 11, 2009) (testimony of Assemblywoman Barbara Buckley).  Thus, we determine that NRS 107.086 and the FMRs necessitate strict compliance…….
            
Because we conclude that strict compliance is necessary, we must discuss what constitutes a valid assignment of deeds of trust and mortgage notes.  Transfers of deeds of trust and mortgage notes are distinctly separate, thus we discuss each one in turn…….
       
Wells Fargo argues that, under Nevada law, possession of the original note allowed it to enforce the note.  We disagree and take this opportunity to clarify the applicability of Article 3 to mortgage notes, as we anticipate increasing participation in the Foreclosure Mediation Program, as well as a corresponding increase in the number of foreclosure appeals in this state. 
As discussed below, we conclude that Article 3 clearly requires Wells Fargo to demonstrate more than mere possession of the original note to be able to enforce a negotiable instrument under the facts of this case………
NRS 111.205(1) (emphases added).  Thus, to prove that MortgageIT properly assigned its interest in land via the deed of trust to Wells Fargo, Wells Fargo needed to provide a signed writing from MortgageIT demonstrating that transfer of interest.  No such assignment was provided at the mediation or to the district court, and the statement from Wells Fargo itself is insufficient proof of assignment.  Absent a proper assignment of a deed of trust, Wells Fargo lacks standing to pursue foreclosure proceedings against Leyva.

           As we concluded in Pasillas, a foreclosing party’s failure to bring the required documents to the mediation is a sanctionable offense under NRS 107.086 and the FMRs.  Therefore, we conclude that the district court abused its discretion when it denied Leyva’s petition for judicial review.  Accordingly, we reverse the district court’s order and remand this matter to the district court with instructions to determine the appropriate sanctions for Wells Fargo’s violation of the statutory and rule-based requirement.  In doing so, the district court should consider the factors discussed in Pasillas.[10]




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