Wednesday, May 20, 2015

Burke v. JPMorgan Chase Bank NA - First Amended Complaint

Below is the First Amended Complaint in Burke v JPMorgan Chase Bank -- US District Court, ND


                     BLOOMBERG REFERENCE


                     Assignment of DOT

FAC ¶ 12. Plaintiffs provide significant detail regarding the process through which
 allegedly sold their loan. See id. ¶¶ 12-19.

Washington Mutual Bank FA's Veil of Secrecy Lifted in Burke v. JPMorgan Chase Bank NA Decision

"This decision finally brings the real issue to the forefront: who, if anyone, actually has the legal status of creditor or the right to claim ownership of the debt, loan, note or mortgage? In this case the Court correctly centered on the real issue: if WAMU had ALREADY sold the loan before it "sold" the loan to a trust or anyone else, then the entire chain is not just defective, or corrupted, it is void. And then you have quiet title, wrongful foreclosure and probably RICO although that does not seem to be in the pleadings for this case."  Neil Garfield, Living Lies


Case No. 13-4249 SC.United States District Court, N.D. California.May 11, 2015.


FAC ¶ 12. Plaintiffs provide significant detail regarding the process through which
 allegedly sold their loan. See id. ¶¶ 12-19.


Plaintiffs allege that on or before August 22, 2008, their mortgage loan was contributed to a mortgage backed security ("MBS") identified as JPMorgan Mortgage Trust 2008 R-2 Pass-through Certificates Series 2008-R2 ("JPMMT 2008-R2"), of which Wells Fargo is the trustee. Id. ¶ 12. Plaintiffs allege that WaMu sold their mortgage loan temporarily to the depositor of the JPMMT 2008-R2, but that the sale failed to assign the DOT. Id. ¶ 16. As Plaintiffs, put it, "[t] his was the first sale of the Plaintiff's mortgage loan, but without effectively assigning the [DOT] and indorsing the underlying original Promissory Note to the interim loan purchaser. . . ." Id. Next, JP Morgan Acceptance Corporation "sold and securitized the pooled mortgages (including Plaintiffs' mortgage loan) into the JPMMT 2008-R2 Trust" on or before the trust's "closing date" on August 22, 2008. Id. Plaintiffs allege that this sale, too, failed to properly assign the DOT or original note. Id.


Though Plaintiffs' FAC is verbose, unclear, and at times appears internally inconsistent, Plaintiffs now allege, at the very least, that:
WAMU irrevocably sold all right, title and interest in Plaintiffs' mortgage loan, for value received, to the JPMorgan Mortgage Trust 2008-R2 Mortgage Pass-through Certificates Series 2008-R2 ("JPMMT 2008-R2"), a private label mortgage-backed securities trust with a Real Estate Mortgage Investment Conduit election and continuing qualification.
FAC ¶ 12. Plaintiffs provide significant detail regarding the process through which WaMu allegedly sold their loan. See id. ¶¶ 12-19.
Plaintiffs now sufficiently allege that WaMu not only had no beneficial interest in the Loan, but that it was no longer the mortgagee when JPMorgan purchased its assets. Because Plaintiffs now allege that WaMu sold its entire interest in the Loan, the facts render plausible the possibility that Defendants lack standing to foreclose on the mortgage. See, e.g., Subramani, 2013 WL 5913789, at *4Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW FFMX, 2011 WL 2173786, at *5 (C.D. Cal. June 2, 2011) ("the above mentioned [similar] facts regarding the transfer of Plaintiff's Note prior to JPMorgan's acquisition of WaMu's assets raise Plaintiff's right to relief above a speculative level").  . . . .
. . . . It is true that "[t]here is no stated requirement in California's non-judicial foreclosure scheme that requires a beneficial interest in the Note to foreclose. Rather, the statute broadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiate non-judicial foreclosure." Lane v. Vitek Real Estate Indus. Grp., 713 F. Supp. 2d 1092, 1099 (E.D. Cal. 2010). However, Plaintiffs now sufficiently allege that WaMu not only had no beneficial interest in the Loan, but that it was no longer the mortgagee when JPMorgan purchased its assets. Because Plaintiffs now allege that WaMu sold its entire interest in the Loan, the facts render plausible the possibility that Defendants lack standing to foreclose on the mortgage. See, e.g., Subramani, 2013 WL 5913789, at *4Javaheri v. JPMorgan Chase Bank, N.A., No. CV10-08185 ODW FFMX, 2011 WL 2173786, at *5 (C.D. Cal. June 2, 2011) ("the abovementioned [similar] facts regarding the transfer of Plaintiff's Note prior to JPMorgan's acquisition of WaMu's assets raise Plaintiff's right to relief above a speculative level"). The Court proceeds to discuss the effect of this finding on each of Plaintiffs' claims in turn.

A. Wrongful Foreclosure

Defendants argue that Plaintiffs' first cause of action must be dismissed because Plaintiffs do not allege any irregularity or illegality in the foreclosure process. As discussed above, however, the Court finds that Plaintiffs now sufficiently allege that WaMu ceded any interest upon which it might foreclose when it sold the Loan in 2008. To the extent that Plaintiffs allege wrongful foreclosure because Defendants were not the "trustee, mortgagee or beneficiary or any of their authorized agents," Plaintiffs state a claim and Defendants' motion is DENIED. See Cal. Civ. Code § 2924(a)(1).

B. Quiet Title

Defendants argue that Plaintiffs' claim for wrongful foreclosure must be dismissed because "the allegations concerning the `holder of the note' have been invalidated." Mot at 5. Because the Court finds that Plaintiffs have sufficiently alleged that Defendants are not the holders of the note, this argument fails. The motion is DENIED as to Plaintiffs' second claim, to the extent that claim is premised on the allegations that Defendants do not have any interest in the note as a result of WaMu's sale of the Loan.

E. Cancellation of Instruments

Defendants' argument that Plaintiffs' cancellation of instruments claim should be dismissed is again premised on the assumption that Plaintiffs fail to allege WaMu's sale of the loan. See Opp'n at 8-9. Because the Court finds that Plaintiffs now adequately allege that their loan was sold, this argument fails. Defendants' motion is DENIED as to the cancellation of instruments claim.


For the foregoing reasons, Defendants JPMorgan Chase Bank, N.A and Wells Fargo Bank, N.A.'s Motion to Dismiss is GRANTED in part and DENIED in part. All of Plaintiffs' claims are DISMISSED with prejudice to the extent they are premised on deficiencies in the securitization process. Plaintiffs' claim for violation of the Fair Credit Reporting Act is DISMISSED with prejudice. Plaintiffs' claims for breach of contract and violation of the Equal Credit Opportunity Act are DISMISSED without prejudice. Plaintiffs' claims for wrongful foreclosure, quiet title, cancelation of instruments, violation of Section 2923.5, and unjust enrichment survive to the extent that they are premised on the theory that WaMu sold its entire interest in the Loan in 2008.
Plaintiffs' claims for slander of title, fraud, and unfair competition are DISMISSED with leave to amend. Plaintiffs may amend those claims to add allegations sufficient to allege fraud under the standards set out by Federal Rule of Civil Procedure 9(b). If plaintiffs choose to amend their complaint to add such allegations, they must do so within thirty (30) days of the signature date of this Order. Failure to amend within thirty days may result in dismissal of those claims with prejudice.
[1] Plaintiffs also allege that Washington Mutual Bank, FA changed its name to Washington Mutual Bank in April of 2005. See id. Plaintiffs apparently assert that WaMu therefore ceased to exist as a legal entity and that JPMorgan knew it could not buy any assets (including Plaintiffs' loan) from WaMu. Plaintiffs in foreclosure cases like this one have repeatedly advanced that theory, and courts have repeatedly rejected it. See, e.g., Lanini v. JPMorgan Chase Bank, No. 2:13-CV-00027 KJM, 2014 WL 1347365, at *3 (E.D. Cal. Apr. 4, 2014) ("Plaintiffs have cited nothing to support their claim that the bank's change of name means the bank itself ceased to exist."). The Court agrees with the numerous other judges who have rejected this theory and holds that Plaintiffs' claims regarding JPMorgan's chain of title to the mortgage and Defendants' knowledge of their lack of interest in the Loan may not be premised on WaMu's name change in 2005.
[2] It is unclear why Defendants make this argument only in opposition to Plaintiffs' Section 2923.5 claim and not all of Plaintiffs' claims. Regardless, some of the Court's reasons for rejecting Defendants' argument apply to all of Plaintiffs' claims.

Wednesday, March 25, 2015

FDIC Employee Quits and Goes Public With Complaint Against Chase, WAMU, Citi and two law firms by Neil Garfield

See Eric Mains Federal Complaint
see Mains – Table of Contents.petition 2 transfer

On Monday Eric Mains resigned from his employment with the FDIC. He had just filed a lawsuit against Chase, Citi, WAMU-HE2 Trust, Cynthia Riley, LPS, WAMU, and two law firms. Since he felt he had a conflict of interest, he believed the best course of action was to resign effective immediately.

His lawsuit, told from the prospective of a true insider, reveals in astonishing detail the worst of the practices that have resulted in millions of illegal foreclosures. Some of his allegations cast a dark shadow over claims of Chase Bank on its balance sheet, as reported to the public and the SEC and the reporting of both Chase and Citi as to their potential liability for wrongful foreclosures. If he is right, and he proves these allegations, much of what Chase has reported as its financial condition will vanish from its financial statements and the liability side of the balance sheets of both Citi (as Trustee) and Chase (as servicer and “owner’) will increase exponentially. This may well have the effect of bringing both giants into the position of insufficient reserve capital and force the government to take action against both entities. Elizabeth Warren might have been right when she said that Citi should have been broken into pieces. And the same logic might apply to Chase.
He has also penned the phrase “wild goose Chase” referring to discovery of the true creditors and processing of applications for modification of loans. And he has opened the door for RICO actions against the banks and individuals who did the bidding of the banks as well as the individuals who directed those actions.


Thursday, January 22, 2015





Sign and Stamp

Let’s jump in the wayback machine regarding some of the big banks and
their robosigning/alteration/forgery/paper
terrorism/document-manufacturing for a second before we get into the
deposition testimony from a “senior operation specialist” with JPMorgan
Chase promised in the headline.

Remember Linda Tirelli’s uncovering of the Wells Fargo document-fixing manual?  LRM covered that here:


From that article:

“In a filing in New York’s Southern District in White
Plains for a local homeowner in bankruptcy, attorney Linda Tirelli
described a 150-page Wells Fargo Foreclosure Attorney Procedures Manual
created November 9, 2011 and updated February 24, 2012. According to
court papers, the Manual details ‘a procedure for processing [mortgage] notes without endorsements and obtaining endorsements and allonges.’”
And remember how Linda DeMartini of Countrywide/Bank of America testified in Kemp v. Countrywide
that she had never seen a note with an endorsement on the bottom
(despite the fact that she had worked there 10 years and worked in the
litigation department) and that Countrywide routinely manufactured
allonges solely for litigation purposes (as opposed to doing so for
supposedly legitimate negotiation/“securitization” purposes)?  LRM
covered that here:


From that article:

a) DeMartini Testimony Transcript

In the case of Kemp v. Countrywide
(BK case from New Jersey, 2010) a Bank of America/Countrywide employee
named Linda DeMartini testified to two important points: 1) she had “never seen an actual note that has an endorsement on the bottom,” and 2) to her knowledge, the only time endorsements were prepared was when they were needed for litigation purposes (this was fleshed out under questioning from the judge).  By the time of her testimony in Kemp, DeMartini
had worked for Bank of America/Countrywide for 10 years and at the time
of her testimony, she worked in the litigation department at Bank of
America as an operational team leader (according to her testimony, she
had been in that position for approximately a year).
DeMartini was clearly competent to testify to the matters to which she
testified, and even Bank of America must have thought so as they flew
her from California to New Jersey to testify in the Kemp case.
Remember also that Linda Tirelli suggested that it’s not just Wells
Fargo that manufactures or “fixes” documents—all the big banks do it:


She said on Fox News:

This is business as usual for all the big banks,”
Tirelli said, referring to the manufacture of mortgage documents out of
whole cloth in order to establish legal standing to foreclose on homes.
And let’s not forget the tale of Lorraine Brown of DocX, convicted of participating in the manufacture/falsification of more than 1 million mortgage documents, which LRM covered here:


From that article:

According to the New York Times, Brown “admitted to participating in the falsification of more than a million documents.” Yes, you read that right–she participated in the falsification of more than one million documents. And these documents were produced at the behest of banks that hired Brown and her company to produce admittedly false documents that were then filed in county land records all over the country and used as evidence in court cases.
Let’s also not forget about Elizabeth Warren’s questioning of the
OCC’s Daniel Stipano, in which he admitted (or at least didn’t deny and
didn’t make any attempt to correct Warren’s assertion) that the OCC knew
of illegal activity by banks related to foreclosures:

Sen. Warren: All right, so let me ask it from the other point of view. You now have evidence in your files of illegal activity, I take it, for some of these banks. I get that from the evidence you’ve released about the charts, who’s going to get paid what, so if
someone believes that they have been illegally foreclosed against, will
they still have a right under this settlement to bring a lawsuit
against the bank?

Mr. Stipano, OCC: Yes.
And lastly, let’s not forget the wording of the consent orders
between the OCC and the banks, in which at least Bank of America was
found by the OCC to have had problems with endorsements, among other things:

“…[Bank of America] litigated foreclosure proceedings and initiated non-judicial foreclosure proceedings without always ensuring that either the promissory note or the mortgage document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party at the appropriate time.”
Just setting the stage here–checking out the ghosts of Christmas
past, as it were.  When you read the info from this deposition, the
connection will be obvious.


OK, we can get out of the wayback machine now and have a look at
deposition testimony of one Vermyrtis Jones, a 23 year-old “senior
operation specialist” employed by JPMorgan Chase Bank, N.A.  On April
30, 2014, Jones was deposed in the Wisconsin case of Deutsche Bank National Trust Company vs. Donna B Ray et al Dane County Case Number 2012CV002466.  The deposition took place in the offices of Duke Copeland Court Reporters in Monroe, Louisiana.

And what do we discover in this testimony?  Well, that Linda
Tirelli was right—this is “business as usual for all the big banks”—at
least as far as creating allonges, voiding existing endorsements, and/or
creating new endorsements to take the place of existing ones (or to
create endorsements that should have existed but didn’t).  Thanks to
Jones’ sworn testimony, apparently we can now add JPMorgan Chase to the
list of banks that appear to do this type of thing.

Read these quotes from the 93-page Jones deposition while keeping in
mind the above information regarding Wells Fargo, Countrywide/BoA, et.
al above.  Think of the quotes from this deposition in that context. 
The “Q” in these quotes is questioner Reed Peterson, attorney for
Defendant Donna B. Ray and “A” is the deponent, Vermyrtis Jones.

In an attempt to make this easier to navigate, blue-highlighted and
numbered short summaries regarding what each of the quotes are referring
to appear above each quote.  Number 7 was particularly intriguing.


“A It’s a system that we use to create allonges, lost note affidavits, voids and extras. So basically, that’s just our main system that we use, and we go into there to verify what needs to be created. And during that particular time when I was working for asset sales, I was working all LNAs exceptions.” p. 15

“A No. I went from asset sales to chain of title, and that’s where I’m working at now, but our procedures was to create an allonge and also go over to custody to clear exceptions, which is voids and extras.
Voids and extras is meaning you may have an endorsement on the allonge
or–I mean–excuse me–on the note, or you may have an allonge already in
the file that custody’s asking for, and if you see that already in the
file, there’s no need to create an allonge or stamp the note from like
Chase Bank USA, N.A. to blank.” pp. 16-17


“Q Explain the procedure for researching a lost note affidavit as far
as exactly what blanks you’re looking to fill in the affidavit and
where you looked to fill in those blanks.

A We look to see if it’s the deed of trust or the mortgage. They’re
going to ask you that because there’s a blank spot there. You’re looking
for the principal amount, the interest rate, the buyer’s name, the
county, the book page, the instrument number, and that’s it.

Q Okay. What is the book page?

A I don’t know.

Q All right.

A Yeah.

Q And when you say you don’t know, what you know is that there was a
place that you would have to go into JPMorgan’s computer system to look
for a specific bit of information, and then that information you would
enter into the lost note affidavit. Is that correct?

A Yes.

Q But as far as what it was, you have no idea, or what it meant, you have no idea?

A Correct.

Q Okay. You had mentioned another piece of information that you look
for that I didn’t–and maybe you can help me out after the–whatever we
were just talking about. I can’t remember–

A The instrument number?

Q The instrument number. What is that?

A I don’t know.

Q Okay. Same thing, you go into the system, find a bit of information, and transpose that into the lost note affidavit. Correct?

A Yes.

Q Was that information on recorded mortgages?

A Yes.” pp. 23-24


“Q You mentioned, I think, four or five entities that you have
signing authority for when we first started this deposition. Do you have
signing authority for more entities than the ones you initially named?

A Yes.

Q Do you have any idea how many entities you have signing authority for?

A No.

Q Let me try to narrow that a little bit.

A Okay.

Q Okay. More than ten?

A Yes.

Q More than a hundred?

A No.

Q More than fifty?

A I don’t know.

Q More than twenty-five?

A I don’t know.

Q Are there certain entities that you normally sign


A Yes.

Q Which are those?

A Chase Bank USA, JPMorgan Chase Bank, N.A., Chase Home Finance, Chase Manhattan Mortgage Corporation, EMC, Wells Fargo.

Q Any others?

A State Street.

Q So in your work, there are certain entities that you know you have
signing authority for, and you don’t need to go into POTS to check to
make sure you have signing authority. Is that fair to say?

MR. RIPLEY: Object to form. You can answer.

A Well, I’m not going to say that. I always go and check my work,
check my systems to make sure if I can sign for that particular lender.

Q But if you had an allonge you had to sign and you were signing for
Chase Bank USA, N.A., would you go into POTS to make sure that you had
authority to sign for Chase Bank USA, N.A. on that particular day?

A Yes.

Q Every time?

A Every time.”  pp. 37-39


“Q Well, let me take a step back because we just talked about
allonges where signatures are placed on there–on the allonge
electronically. Correct?

A Yes.

MR. RIPLEY: Object to form.

Q That allonge is created using an electronic image of your signature. Correct?

MR. RIPLEY: Object to the form.

A No. I guess the misunderstanding was electronic signature. I actually sign the allonge with the pen myself.
There’s no electronic. If the image is imaged in iVault, I see my
signature out there, but there’s no passing–like no other step as far as
the image being signed with my signature. I sign the allonge with my
own signature with the pen. No electronic signature for me. Like a
system that has a system out there for my signature, no, I do it myself.
I print out the allonge that I created, I get a pen, and I sign it myself.

Q So every allonge that bears your signature and is the
original allonge is going to have a signature created by you using a
pen. Is that correct?

A Yes.

Q JPMorgan then does not create allonges by placing a scanned image of your signature into the allonge. Is that correct?

A Yes.

Q Are you aware of a process used by JPMorgan to create allonges by inserting a scanned image of a signature into the allonge?

A No.

Q Are you aware of documents called signature tables?

A No.

Q Are you aware of any process to manage scans of JPMorgan’s employees’ signatures?

A No.” pp. 42-43

[later in the proceedings, Peterson asks what color ink Jones signs with]

“Q And I don’t have the original allonge here, but if I had the
original allonge, it would have your original signature on it. Correct?

A Yes.

Q Would the original signature be signed in a particular ink color?

A Yes.

Q What color?

A Black.

Q Do you sign all allonges in black?

A Yes.

Q Is that part of JPMorgan’s policies and procedures?

A Yes.” pp. 80-81


“Q No. Let me ask that a different way. Every exception that comes
to you is a request to determine whether an endorsement or an allonge
is needed. Correct?

A Yes.

Q And that’s sent by custody. Correct?

A Yes.

Q Custody has custody of the collateral file. Correct?

A Yes.

Q Do you go to custody for every exception that you receive?

A No.

Q So why would you go to custody to see if the documents had an
endorsement or an allonge already in the physical file when custody is
telling you that that’s needed?

A Well, we have a procedure that we do as far as endorsements or
allonges that we create–it’s called voids and extras, and it’s meaning
that it’s an endorsement out there or there’s an allonge already out
there. I’m not saying that every exception that we do we go over there
to custody to verify that, but it’s just a procedure that custody opened
up, and we rely on custody to see if there’s an endorsement or allonge
already out there. And if it is, who to say somebody might go over there
and void it out. Then that’s when we take upon ourself to go ahead and
create the allonge because if it’s voided, it’s no good. Now they need a
current allonge or endorsement that needs to be placed in a file.

Q This sounds really confusing. Is it confusing on your end?

MR. RIPLEY: Object to the form.

A No.” pp. 46-47


Q How many voids and extras would you receive on average in a given day?

A Twenty-five to fifty.

Q Twenty-five to fifty.

A Right.

Q So in a given day, on average, you would receive
approximately fifty allonge exceptions and twenty-five to fifty void and
extras exceptions. Is that correct?

A Yes.

Q On average, when you went to custody, how many files were you pulling?

A I wasn’t pulling–pulling the files. Custody would already have the
files pulled for me, and they would place those files on a gondola.

Q Okay. So they’d be prepped and ready for you to look at when you got there?

A Correct.

Q You said you went to custody on average every other day. When you
say you went there every other day, on average, was your work assignment
to go there every other day?

A Yes.

Q So it really wasn’t on average? I mean, that was your routine was every  other day you would go to custody?

A Yes. Myself and another employee.

Q How long would you spend at custody on that day you went?

A It just depends on how many files I have. Just say if I
have twenty-files that’s pulled for me, about an hour and a half a day.

Q Okay. Would twenty-five files be normal?

A Yes.

Q So of the voids and extras that you would receive in a
two-day period, anywhere from fifty–twenty-five to fifty percent would
require you to go to custody to review the files. Is that about right?

A Yes.” pp, 48-50


Q Okay. So we’ve talked about
two instances where nothing really needs to be done, the file–the
collateral file is correct. Right?

A Yes.

Q But the collateral file is not always correct.  Right?

A Yes.

MR. RIPLEY: Object to the form.

Q Which is why you have to go to custody and do the extra research. Right?

A Yes.

Q So what happens if the endorsement on the note is not correct? What do you do?

A If the endorsement’s not correct, sometimes we may void that
endorsement and create an allonge to take place of that endorsement, if
we have signing authority for it.

Q For the allonge?

A For the endorsement, the original lender or whoever gave it to that particular company.”  p. 58


Q Near the top right corner of “Exhibit 1″ there is what appears to be a snail. Do you see that?

A Yes.

Q Are you familiar with that?

A Yes.

Q Okay. Internally, you call that a snail, don’t


A Well, they change it. Back in the day it was a swirl or something like that, so–

Q Swirl?

A Yeah.

Q Now what’s it called?

A I’m not for sure.

Q Okay.

A Yeah.

Q Is there any meaning to the swirl that you know of?

A Yes.

Q What meaning is assigned to that swirl?

A That this is the original note.

Q What company places that swirl on the note?

A I know the department is custody.

Q Okay. And that’s custody at JPMorgan. Correct?

A Yes.

Q So this is a marking specific to JPMorgan.


A Yes.

Q That swirl is JPMorgan’s way of indicating a document is an original. Correct?

A Yes.

Q Do you know who is authorized to place that swirl on notes?

A No.

Q When you review the collateral files as part of your work process
at custody, do all the original notes that you look at have that swirl
on them?

A No.

Q Have you ever placed a swirl on a note?

A No.

Q Have you ever observed a swirl being placed on a note?

A No.

Q Are the swirls placed on notes only for specific lenders?

A I don’t know.

Q So it sounds as if a swirl is placed on what is believed to be the original note and sometimes it’s not. Is that correct?

A Yes.

Q As far as whether an employee of JPMorgan attended the closing for a
loan in which the named lender is Chase Bank USA, N.A., you have no
knowledge whether that happened, do you?

A No.

Q So do you know if the swirl is always on the first page?

A Yes. For the ones I reviewed and seen, it’s always on the first page.” pp. 73-75

There are many other interesting exchanges in this deposition, but
these are some highlights.  You can downloaded the deposition here: Jones, Vermyrtis 04-30-14-JPMC