Friday, July 27, 2012

Tim Geithner Admits Banks (And AIG) Were Bailed Out At Rigged Libor Rates, Costing Taxpayers Billions (Video) - Home - The Daily Bail

Tim Geithner Admits Banks (And AIG) Were Bailed Out At Rigged Libor Rates, Costing Taxpayers Billions (Video) - Home - The Daily Bail

KABOOM | COURSEN vs JP MORGAN CHASE, FIDELITY NATIONAL FINANCIAL (FNF) MTD DENIED – RICO, Racketeering, Perjury, Fraud, Sham, Fabricated, Manufactured Evidence | Foreclosure Fraud - Fighting Foreclosure Fraud by Sharing the Knowledge

Additional information regarding Elizabeth Coursen's lawsuit against JPMorgan Chase Bank NA, and others.  Go to:


KABOOM | COURSEN vs JP MORGAN CHASE, FIDELITY NATIONAL FINANCIAL (FNF) MTD DENIED – RICO, Racketeering, Perjury, Fraud, Sham, Fabricated, Manufactured Evidence | Foreclosure Fraud - Fighting Foreclosure Fraud by Sharing the Knowledge

Rights of the Homeless - Civil Rights of Homeless Persons

Rights of the Homeless - Civil Rights of Homeless Persons

John, Anna Canaday Claim JPMorgan Chase Called Them 75 Times A Week

John, Anna Canaday Claim JPMorgan Chase Called Them 75 Times A Week

Thursday, July 26, 2012

Florida Homeowner Liz Coursen's Wins Big in RICO Case Against JPMorgan Chase et al


July 25th 2012 stands out as a red letter day for foreclosure fighters and home defenders in Florida. The scales of justice have at long last tipped in the favor of Elizabeth "Liz" Coursen, a Florida homeowner, who has waged a six year fight for her home. She won her first real fight against JPMorgan Chase Bank NA and other players such as WAMU, North American Mortgage Company, Fannie Mae, Fidelity National, LPSDS, and Shapiro and Shipman. This case is out of the federal courts in the Middle District of Florida. The Plaintiff, Elizabeth Coursen, has sued a litany of corporate entities for wrongful foreclosure and her claims include RICO, Civil Conspiracy, FDCPA violations, FLUDPTA violations and more. She is a source of inspiration to home defenders across the country.  She has stood steadfast and resolute in her fight for fairness and justice. Liz has reached out and helped homeowners in distress across the country.  The tides are turning in her favor.

JPMorgan Chase Bank successfully foreclosed on Liz Coursen's home 7 or 8 months ago. The bank has left the property uninhabited and through neglect may have made in unhabitable. The yard is filled with weeds and trash; the exterior is now covered in mold. This is a blight on the neighborhood, Had Chase and Fannie worked with Liz she could be living there and maintaining the property. This is but one example of what is going on across America -- banks are destroying lives, neighhorhoods, and cities across the land.

The U. S. District Court in Tampa ruled that Liz Coursen's civil RICO claim is not time-barred inasmuch as Plaintiff asserts that she was prevented from discovering that she was the victim of fraud by Defendants’ concealment of the alleged fraud.

 BACKGROUND:

On or about September 27, 2001, Plaintiff, Elizabeth H. Coursen (“Plaintiff”), executed and delivered a promissory note and a mortgage to North American Mortgage Company. Defendant Washington Mutual Bank (“WaMu”) became the holder of the Note and Mortgage, as successor to North American Mortgage Company, and it assigned the Mortgage to Defendant Federal National Mortgage Corporation (“Fannie Mae”) in 2003. 

Fannie Mae filed a complaint in the Twelfth Judicial Circuit Court in Sarasota County, Florida, seeking foreclosure of the Mortgage against Plaintiff on April 23, 2003, in the case of Federal National Mortgage Association  Elizabeth H. Coursen, et. al., Case No.: 2003-CA-005846 NC (“the 2003 Foreclosure Case”), which was eventually dismissed. On or about October 31, 2006, Fannie Mae assigned the Mortgage back to WaMu as attorney-in-fact for Fannie Mae. WaMu determined that Coursen had defaulted on her loan payments in 2006, and as a result, filed a foreclosure action against Plaintiff on or about September 13, 2006, in the case of Washington Mutual Bank v. Elizabeth H. Coursen, et. al., Case No.: 2006-CA-008521 NC (“the 2006 Foreclosure Case”).

WaMu received a final judgment of foreclosure in the 2006 Foreclosure Case on or about November 27, 2006 (“the Final Judgment”). In the 2006 Foreclosure Case, WaMu filed the original Note, which reflected a blank endorsement. In 2008, Defendants JPMorgan Chase & Co. and JPMorgan Chase Bank, N.A. (collectively “Chase”) acquired WaMu and subsequently became holder of the Note and Mortgage. Following several failed attempts to settle the 2006 Foreclosure Case through loss mitigation efforts, and following several pleadings filed by Plaintiff in an attempt to remain in the property without making mortgage payments, the foreclosure sale was eventually rescheduled for
November 14, 2011.

Plaintiff Coursen filed a Motion to Vacate Judgment on or about September 27, 2011. The state court denied the motion on October 24, 2011, for lack of jurisdiction. Plaintiff subsequently filed a Motion for Rehearing on or about November 3, 2011, which was denied. At the foreclosure sale on November 14, 2011, the subject property was sold to Chase. Plaintiff subsequently filed her Objection to Sale, not raising any irregularity in the sale or inadequacy of the sale price. In response, Chase filed a Motion to Strike the Objection to Sale, which was granted on March 6, 2012.

Plaintiff filed a Complaint solely against JP Morgan Chase & Co. in state circuit court on August 18, 2010, based upon allegations that Defendant lacked standing and committed fraud in pursuit of the foreclosure. On August 18, 2011, the Complaint was dismissed with leave to amend, for failure to state the fraud claims with particularity. On September 27, 2011, Plaintiff filed a motion to vacate judgment in the 2006 mortgage foreclosure, which was denied on October 24, 2011. She sought rehearing on November 3, 2011, and her motion was denied.  

The final sale of the property took place on November 4, 2011, and a certificate of title was issued to Chase. Plaintiff filed an objection to the sale, which was struck on March 6, 2012, because the motion failed to raise any irregularity in the sale or inadequacy of the sale price.

Plaintiff then filed her First Amended Complaint on or about March 6, 2012, in which she seeks relief through five counts for violations of FDUTPA (Count I); violations of the FDCPA and the FCCPA (Count II); for civil conspiracy (Count III); for abuse of legal process (Count IV); for damages and declaratory relief under 18 U.S.C. § 1961, 18 U.S.C. § 1962(b), and 18 U.S.C. § 1964 (Count V). (Dkt. 2.)  

Coursen added Defendants FNF, JPMorgan Chase Bank, N.A., WaMu, Fannie Mae, Shapiro & Fishman, GP, Fidelity National Default Solutions (“FNDS”), Fidelity National Information “FNIS”), Inc., Lender Processing Services, Inc. (“LPS”), Lender Processing Services Default Solutions, Inc. (“LPSDS”), DocX, and Dory Goebel (“Goebel”), as Defendants. Defendants Chase, WaMu, and Fannie Mae removed the case to U. S. District Court on March 30, 2012. (Dkt. 1.)

Plaintiff alleges that Defendants unlawfully employed the United States mail, Florida state courts, and perjured and fabricated evidence to divest her of her homestead.(Dkt. 2, ¶¶1-16.) She alleges that Defendants were the principals of, or participated in, the operation or management of the enterprise itself and that the pattern of racketeering included at least two acts, transmission through the use of the mail of fake Assignments -11- Case 8:12-cv-00690-RAL-EAJ Document 41 Filed 07/25/12 Page 11 of 12 PageID 858  of Mortgage and fictitious corporate signatures. (Id. at ¶¶6-12.) Furthermore, Plaintiff’s civil RICO claim is not time-barred inasmuch as Plaintiff asserts that she was prevented
from discovering that she was the victim of fraud by Defendants’ concealment of the
alleged fraud.


ACCORDINGLY, it is ORDERED AND ADJUDGED:
Defendant Fidelity National Financial, Inc.’s Motion to Dismiss Plaintiff's First
Amended Complaint (Dkt. 28) is denied. Defendant shall file its answer and any defenses
to the First Amended Complaint within ten (10) days of this Order.


 



Tuesday, July 24, 2012

Geithner 'deeply offended' by charges in new book Bailout

Geithner 'deeply offended' by charges in new book

Geithner needs to stop whining and resign as Secretary of the Treasury.  He is no friend of ordinary people.  He is in bed with the banks.

Saturday, July 21, 2012

TIMOTHY GEITHNER THREW HOMEOWNERS UNDER THE BUS



The "Crow of the Century Award" goes to Secretary of the Treasury, Timothy Geithner, for throwing distressed homeowners under the bus with the HAMP "extend and pretend" program which we now know was nothing but more corporate welfare at the expense of good decent Americans.



Sad but true, I can speak from personal experience as a homeowner facing foreclosure.  I was put in a 3 month trial mortgage modification plan and ended up making five trial payments on time more than as agreed only to have Chase Bank take my money, turn me down for a permanent loan modification, and immediately move to sell my home at auction.  To date the bank has not gotten my home but I have been bloodied and bullied since July 2009.  I now have a preliminary injunction in place and mounting legal bills.  Now through Barofsky's book Bailout and related articles I have learned that my fears of being hoodwinked were founded in fact and not a figment of my imagination as Chase employees tried to make me believe.  HAMP was an extension of "bank welfare", helping out the likes of Jamie Dimon and JPMorgan Chase Bank NA.

 I am not alone in this Geithner grand scheme, this conspiracy between the Secretary of the US Treasury and the major banks.  The costs to the American people are too great to measure but can be identified by suicides, homelessness, stress related health issues, destroyed lives/families/communities, poverty.  It was not enough that the banks preyed on homeowners to feed their greed machine. The fixing of the LIBOR was not enough.  Now we find that the man entrusted to protect the financial interests of the American people is an active participant and accomplice in this giant Ponzi scheme to steal our homes and sense of well-being.  Geithner was "in bed" with the bankers all along.


Geithner's pillage and burn tactics are:   Screw the American people! Screw homeowners!  Screw children!  Screw the taxpayers! And all of us be damned.

I call on President Obama to fire Timothy Geithner.  Send him packing for his crimes against the American people. Better yet indict, try and convict this shister.

What others are saying:

"The Washington Post described a scene in a forthcoming book by Neil Barofsky, the former Special Inspector General of TARP, where Treasury Secretary Timothy Geithner delivered a string of F-bombs during a discussion about transparency. I’ve read the book, and while that’s an amusing diversion, it’s nowhere near the headline story.

"The important moment in the book for me comes conveniently after Barofsky recounts this FDL News item, one of my HAMP horror stories. Barofsky shows how HAMP’s faulty design led to all sorts of problems like this, with trapped borrowers, extended trial payments, no-doc modifications, and eventually unnecessary foreclosures. Barofsky mused that Treasury didn’t care about the suffering of borrowers under HAMP, and the issue came up in a meeting with the Treasury Secretary, which was also attended by Elizabeth Warren, then the head of the Congressional Oversight Panel, another TARP watchdog.

"Warren asked Geithner repeatedly about HAMP. After several evasions, Geithner said about the banks, “We estimate that they can handle ten million foreclosures, over time… this program will help foam the runway for them.”]

"This is a revelatory moment for Barofsky in the book, and should be for everyone reading. Geithner’s concern, first of all, was with how the banks would respond to the program, not how homeowners would respond to it. In fact, homeowners are quite besides the point. Regardless of their situation, they will be one of the 10 million foreclosures, in Geithner’s construction. His goal was merely to space out the foreclosures and give the banks time to earn their way back to health, mostly through the other parts of the bailout, that enabled them to earn profits.
"This is a classic “extend and pretend” scheme; banks can extend the time frame for their losses, and pretend they were financially strong in the meantime. We previously had evidence that Geithner and the Treasury Department thought this way. In August 2010, a Treasury official (which Barofsky outs in the book as Geithner) made basically the same defense of HAMP, that it would give time for the banks to absorb foreclosures rather than have them come on the market all at once. But that came as a defense of the program after the fact. This scene with Warren and Barofsky came in mid-2009, when the program was in its infancy. And it’s prospective, not retrospective. It’s not that Treasury came up with a justification after the performance of HAMP faltered. It’s that it was designed this way."
Read more at:

Barofsky Book: Geithner Confirmed in 2009 That HAMP Was Designed for Banks to Spread Out Foreclosures | FDL News Desk

Bailout An Inside Account of How Washington Abandoned Main Street While Rescuing Wall Street by Neil Barofsky

Why the Obama Administration Will Hate Neil Barofsky's Book

Bailout: An Inside Account of How Washington Abandoned Main Street While Rescuing Wall Street

Corporate power dictates government policy and prevents accountability. It's a crime syndicate, and we're the victims on so many levels. Here is a video on the Libor scandal with Matt Taibi and an interview with Chris Hedges by Bill Moyers that shows what we are up against.





Appraiser Law Blog: What Is the Statute of Limitations for Suing about an Appraisal?

Appraiser Law Blog: What Is the Statute of Limitations for Suing about an Appraisal?

jpmorgan-watch.com

jpmorgan-watch.com


This site is provided as a public service. It collects and presents information on litigation and related proceedings involving JPMorgan Chase & Co. and its affiliated companies, including J.P. Morgan Securities Inc., Chase Bank, J.P. Morgan Investment Management Inc., and others (including formerly separate companies that have been acquired by JPMorgan, such as Bear Stearns & Co., Washington Mutual Bank, etc.).

This site presents available information about litigation and other proceedings in general categories – feel free to browse the categories for individual cases, or use the search function to find information about specific cases or parties.

HELP US IDENTIFY AND TRACK CASES AND OTHER PROCEEDINGS INVOLVING JPMORGAN! If you are party to a case, know of a case we have not identified, can contribute a news link or a document for a case, please use the CONTACT form. Please also help us by identifying any errors in the information presented. We will review submissions on a regular basis. Please note we do not promise to use information submitted and can not respond to emails; in particular note that this site does not provide legal, financial, or other advice.

Class Action Lawsuit Alleges JP Morgan Engaged in Systematic Document Fabrication to Move Mortgage Losses from Its Books into Mortgage Backed Securities « naked capitalism

Class Action Lawsuit Alleges JP Morgan Engaged in Systematic Document Fabrication to Move Mortgage Losses from Its Books into Mortgage Backed Securities « naked capitalism

Tuesday, July 17, 2012

Libor Scandal May Cost Banks $35 Billion: Study

Libor Scandal May Cost Banks $35 Billion: Study

Bernanke Dodges Responsibility On Libor Scandal At Senate Banking Committee

Bernanke Dodges Responsibility On Libor Scandal At Senate Banking Committee  

Ben Bernanke 

The Fed's strategy in dealing with the Libor scandal is clear: Pass the buck early and often.
Federal Reserve Chairman Ben Bernanke followed that playbook to the letter in testimony Tuesday at the Senate Banking Committee, repeatedly telling lawmakers that the Fed had done all it could to respond to evidence that banks were manipulating a key interest rate. The primary responsibility for dealing with Libor, he said, rested with the British regulators and banks.

Before I confess bank price fixing...let me say, I love your accent - The Tell - MarketWatch

The transcript of an April 2008 phone call between officials at Barclays and the New York Fed is a pretty damning insider account of price fixing. But make no mistake: it’s also comedy gold. The exchange takes place between a Barclays  UK:BARC 0.82% official who isn’t named and Fabiola Ravazzolo Senior Financial Economist with Federal Reserve Bank of New York. Despite her Italian background — as detailed in a recent celebration of Italian entrepreneurs worldwide — Ravazzolo has a British accent, one the Barclays official very much appreciated.


Before I confess bank price fixing...let me say, I love your accent - The Tell - MarketWatch

NO ONE IS ABOVE THE LAW -- REALLY?

Rule of Law

The Rule of Law, in its most basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will.

The most important application of the rule of law is the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedural steps that are referred to as due process. The principle is intended to be a safeguard against arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.

LexisNexis is committed to playing a positive role in the community and becoming an authoritative voice in "higher order" legal and risk management business issues that are not only topical, but, more importantly, foundational to the stability of governments, the well-being of their citizens, and business. One example is our initiative regarding "the Rule of Law" and its role in preserving, protecting, and defending the rights and property of individuals and corporations around the world.

Rule of Law | LexisNexis

Bernanke: "LIBOR System Is Structurally Flawed" (Video) - Home - The Daily Bail

Bernanke: "LIBOR System Is Structurally Flawed" (Video) - Home - The Daily Bail

Check Out The $9 Billion Dollar Check That Saved Morgan Stanley (PHOTO) - Home - The Daily Bail

Check Out The $9 Billion Dollar Check That Saved Morgan Stanley (PHOTO) - Home - The Daily Bail

Sunday, July 15, 2012

JPMorgan Chase Entities Named in LIBOR RICO Scandal Lawsuit






THE BIGGEST BANKING SCANDAL OF ALL -- FIXING THE LIBOR

An Undeniable Murder of Crows


"The Libor interest rate rigging scandal is being called the biggest financial fraud in history.  Libor is a key interest rate that is used globally to set as much as $800 trillion in transactions.  It is used to set interest rates for things such as credit cards, student loans, mortgages, corporate bonds and hundreds of trillions of dollars in derivatives.   Libor stands for the London Inter-Bank Offered Rate.  It is supposed to be an estimate of what it would cost for some of the biggest banks in the world to borrow money from one another.  Sixteen global banks are involved in setting the rate, three of which are in the U.S. (JP Morgan, B of A, and Citi.)  It was recently revealed by Barclays Bank (in the UK) that this key interest rate quoted by most of these banks was nothing more than a gigantic rate rigging scheme. "   Greg Hunter’s USAWatchdog.com

Forbes recently queried: "What do Barclays, JP Morgan, MF Global and Chesapeake Energy have in common? They are all examples of risk management and audit failures and the auditor of all of them is PricewaterhouseCoopers."
http://www.forbes.com/sites/francinemckenna/2012/07/02/barclays-manipulates-libor-while-auditor-pwc-snoozes/ 

How many more lies and how much more fraud will JPM shareholders and bank customers tolerate before the Titanic JPM goes down?  The bigger question for homeowners is "What are the legal implications of the LIBOR scandal for real estate borrowers whose loans are LIBOR indexed?"  Were borrowers overcharged for their mortgage loans that were based on the LIBOR?  What are the implications in the foreclosure crises if borrowers have been overpaying or even underpaying their mortgages?  Had the proper interest rate been charged up front, could these hapless borrowers have even qualified for these fraudulent mortgages?  Does this fraud invalidate Notices of Default, Notices of Trustee Sales, and mortgages themselves?

Will JPMorgan Chase Bank NA bear any liabilities to Washington Mutual Bank borrowers or will they continue to deny the existence of the "true and complete" 118 page or so Purchase and Assumption Agreement?

Will the US Justice Department cast another blind eye and not hold these criminal banksters accountable?

To give you some idea of what this LIBOR scandal is all about, let me refer you to an ongoing civil RICO antitrust lawsuit.  On August 23, 2011 entities of JPMorgan Chase were named Defendants in a a civil complaint, a LIBOR Based Financial Instruments Anti-Trust Litigation filed by Charles Schwab  Bank NA et al against numerous major national and international banks (see below) in the US District Court, Northern California, San Francisco.  On September 24, 2011 the Court transferred the case to the Southern District of New York to the Honorable Judge Naomi Reice Buchwald; Case Number 1:11-cv-06411.  The case is presently moving forward according to documents published on PACER.  Plaintiffs allege RICO charges, mail fraud, antitrust violations and so forth.  This is a case worthy of following as it has been in the court for 11 months.

Defendants: 
Banc of America Securities, LLC, Bank of America Corporation, Bank of America, N.A., Bank of Pennsylvania, Bank of Scotland PLC, Barclays Bank PLC, Barclays US Funding Corp., Chase Bank USA, CitiGroup, Inc., Citibank, N.A., Citigroup Funding, Inc., Citigroup Global Markets Inc., Citizens Bank of Massachusetts, Citizens Bank, N.A., Credit Suisse Group AG, Credit Suisse Holdings (USA) Inc., Credit Suisse Securities (USA) LLC, Deutsche Bank AG, Deutsche Bank Financial LLC, Deutsche Bank Securities, Inc., HSBC Bank USA, HSBC Finance Corporation, HSBC Holdings plc, HSBC Securities (USA) Inc., J.P. Morgan Chase & Co., J.P. Morgan Securities Inc., JP Morgan Securities LLC, JPMorgan Chase Bank National Association, Lloyds Banking Group PLC, Lloyds Tsb Bank Plc, RBS Citizens, NA, RBS Securities Inc., Royal Bank of Scotland Group plc, UBS AG, UBS Finance (Delaware) Inc., UBS Financial Services Inc., UBS Securities LLC, and Westlb AG,[Filing Fee: $350.00, Receipt Number 34611063832] Filed by Plaintiffs The Charles Schwab Corporation, Charles Schwab Bank, N.A. & Charles Schwab & Co., Inc.. (tn, COURT STAFF) (Filed on 8/23/2011) (mjj2S, COURT STAFF). [Transferred from California Northern on 9/16/2011.] (Entered: 08/25/2011)

The Schwab complaint asserts the following Nature of the Issues:


This case arises from ongoing manipulation of the London Interbank Offered Rate (“LIBOR”) by a cadre of prominent financial institutions. Beginning in 2007 and continuing approximately until the announcement of government investigations and subpoenas in March 2011 (the “Relevant Period”), Defendants (identified below) purported to report to the British Bankers’ Association (“BBA”) the actual interest rates they paid on funds they borrowed from other financial institutions—i.e., their true “costs of borrowing”—on a daily basis. The BBA then relied on the false information Defendants provided to set LIBOR, a benchmark set of interest rates used to price trillions of dollars’ worth of financial instruments worldwide. By acting together and in concert to knowingly understate to the BBA their true costs of borrowing, Defendants caused LIBOR to be set artificially low.


Defendants perpetrated their fraudulent scheme and conspiracy to artificially depress LIBOR as a means to pay lower interest rates on interest-bearing financial instruments and securities paying returns based on, tied to, benchmarked or indexed to LIBOR (collectively, “LIBOR-based instruments and securities”) that Defendants sold to investors, including Plaintiffs. Specifically, Defendants misrepresented, in connection with numerous offerings of LIBOR-based  instruments and securities during the Relevant Period, that the interest rates investors would receive on the subject LIBOR-based instruments and securities were based on LIBOR, when in fact Defendants were actively working together to ensure LIBOR was set at artificially low rates. Thus surreptitiously bilking investors of their rightful rates of return on their investments, Defendants reaped hundreds of millions, if not billions, of dollars in ill-gotten gains. Defendants—in the debt securities context, the borrowers—have been cheating investors—the lenders—out of interest payments for years. Moreover, by understating their true costs of borrowing, Defendants provided a false or misleading impression of their financial strength to investors.

Defendants’ manipulation similarly depressed returns on securities they sold and issued that paid a fixed rate of return, such as fixed-rate notes. As Defendants know, market participants use LIBOR as the starting point for negotiating rates of return on short-term fixed-rate instruments, such as fixed-rate notes maturing in a year or less. Defendants borrowed money from Plaintiffs by issuing short-term paper at a rate set as a spread above LIBOR. By depressing LIBOR, Defendants paid lower interest rates on short-term paper Plaintiffs purchased from them. Additionally, by depressing LIBOR, Defendants depressed the rates of return Plaintiffs earned on short-term paper they purchased from other entities who based those rates on LIBOR.

While Defendants successfully perpetrated their unlawful scheme for years (amid isolated expressions of concern by some market participants), a series of recently initiated government investigations within the United States and abroad has begun to shed light on Defendants’ malfeasance. Among other things, UBS recently disclosed that it received a grant of conditional leniency from the United States Department of Justice (“DOJ”) under the Antitrust Criminal Penalties Enhancement and Reform Act and the DOJ’s Corporate Leniency Policy in exchange for cooperating with the DOJ’s investigation into LIBOR manipulation. Under that policy, the DOJ only grants leniency to corporations that report actual illegal activity. Other Defendants likewise are targets of government investigations concerning the misconduct alleged in this Complaint.

During the Relevant Period, Plaintiffs acquired tens of billions of dollars’ worth of LIBOR-based instruments and securities from Defendants and other issuers, which paid artificially low returns to Plaintiffs based on Defendants’ manipulation of LIBOR. 6. Plaintiffs now seek relief for the damages they have suffered as a result of Defendants’ violations of federal and state law. Plaintiffs assert claims under the Sherman Act, 15 U.S.C. §§ 1 et seq.; the Clayton Act, 15 U.S.C. §§ 12 et seq.; the Securities Act of 1933 (“Securities Act”), 15 U.S.C. § 77k; the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder by the United States Securities and Exchange Commission (“SEC”), 17 C.F.R. § 240.10b-5; the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq.; and the statutory and common law of California. Plaintiffs’ allegations are based on personal knowledge with respect to their own conduct and on information and belief as to other allegations based on facts obtained during the course of their attorneys’ investigation.

Each of the Securities Dealer Defendants joined and furthered the conspiracy by selling LIBOR-based instruments and securities at elevated prices and that paid depressed rates of
interest as a result of the misconduct alleged herein, to the direct benefit of their corporate parents
that manipulated LIBOR.

The LIBOR Panel Defendants agreed to manipulate LIBOR on behalf of, and  reported this manipulation to, their respective corporate families. As a result, the entire corporate family was represented in these meetings and discussions by their agents and were parties to the agreements reached in them. Furthermore, to the extent that subsidiaries or affiliates within the corporate families sold LIBOR-based instruments and securities to buyers such as Plaintiffs, these subsidiaries and affiliates played a significant role in the conspiracy. Thus, all entities within the corporate families that were engaged in the setting of LIBOR or the marketing, sale and distribution of such LIBOR-based instruments and securities were active, knowing participants in the alleged conspiracy

Plaintiffs Allege that they Suffered Injury Resulting From The Pattern of Racketeering Activity -- RICO.

Because Plaintiffs unknowingly paid money to Defendants for notes and other securities that paid interest at a manipulated rate, and in fact collected less interest than they would have absent the conspiracy, Plaintiffs are direct victims of Defendants’ wrongful and unlawful conduct. Plaintiffs’ injuries were direct, proximate, foreseeable and natural consequences of Defendants’ conspiracy; indeed, those effects were precisely why the scheme concocted. In making payments to Defendants, Plaintiffs gave money in the custody or control of financial institutions. There are no independent factors that account for Plaintiffs’ economic injuries, and the loss of money satisfies RICO’s injury requirement.

The pattern of racketeering activity, as described in this Complaint, is continuous, ongoing and will continue unless Defendants are enjoined from continuing their racketeering practices. Defendants have consistently demonstrated their unwillingness to discontinue the illegal practices described herein, and they continue their pattern of racketeering as of the filing of this Complaint.

Plaintiffs are entitled to recover treble damages for the injuries they have sustained, according to proof, as well as restitution and costs of suit and reasonable attorneys’ fees in accordance with 18 U.S.C. § 1964(c). 180. As a direct and proximate result of the subject racketeering activities, Plaintiffs are entitled to an order, in accordance with 18 U.S.C. § 1964(a), enjoining and prohibiting
Defendants from further engaging in their unlawful conduct.


Link to Complaint      1:11-cv-06411 Charles Schwab Bank NA et al v Bank of America, JPMorgan Chase, Citigroup, Barclays, et al


















































































































































































































































































































































Defendant: WestDeutsche Immobilienbank AG

Thursday, July 5, 2012

The Silver Lining in Paatalo v. JPMorgan Chase Bank NA et al



There may be a silver lining in the case Paatalo v. JPMorgan Chase Bank NA, et al.  Public records available through PACER reflect that Plaintiff  filed a pro se lawsuit against four defendants alleging illegal foreclosure and contested the defendant's standing as beneficiary of his Deed of trust.  It appears that Defendants answered with no counter-claims sought.  His loan was believed to be securitized into a private trust, WAMU Mortgage Pass-Through Certificate Series 2007-OA3 Trust.  Defendants claimed that the Trust was the owner/beneficiary of his Deed of Trust.

In his complaint Plaintiff stated that he was ignorant as to the true names and capacities of the defendants and that he would amend the true names and capacities if and when ascertained.  He sued all parties as agents of one another, acting within the scope and authority as agents of one another.  He initially named one of the defendants as successor trustee of the Trust.

In answering the complaint the alleged successor trustee, Mackoff Kellogg Law Firm, stated he was without knowledge sufficient to form a belief as to whether or not he was an agent of the others or "successor trustee" of the Trust but would deny the allegation.

During discovery Plaintiff sought to ascertain the true capacities and authorities of all parties.  He requested the agent agreements and contracts between the parties showing their scope of authority.  All parties objected and refused to clarify their legal authorities on the grounds of confidentiality.

As the case progressed Mackoff Kellogg repeatedly identified itself in all motions and responses as Successor Trustee of the Trust.  He contacted all defendants as he was concerned about Mackoff Kellogg's continued statements of being successor trustee of the Trust and if untrue to clarify, change or correct.  No action was taken though two inquiries were made.

After fourteen months of litigation Plaintiff reached a confidential settlement agreement with the Successor Trustee of the Trust. US Magistrate Judge Carolyn S. Otsby reviewed the "Joint Stipulation to Dismiss with Prejudice" and informed all parties that they had fourteen days to object. Before the Judge alerted all parties of the 14 days notice to object, Plaintiff contacted the remaining Defendants and stated that he had settled with the Successor Trustee of the Trust and that the agreement contained a mutual release of all claims now and in the future.  Plaintiff had thus settled all matters with the Trust through its agent the Successor Trustee.  He pointed out that the Trust/Beneficiary would have no further claims to his property. The remaining parties disagreed however none of them filed an objection to the Settlement with the Court during the 14-day period to object and the Judge eventually signed off.  Plaintiff's claims against the remaining defendants were dismissed on June 28, 2012 with prejudice on summary judgment due primarily to technical gaffes on his part.

Since all parties failed to take action to clarify or correct their authorities, nor to provide their authorities in discovery, and as Plaintiff took reliance on their stated authorities when signing the settlement agreement, the question arises "is Plaintiff protected?".  Could the Court at a future date attempt to tear into the confidential settlement agreement and attempt to invalidate it?

The judge actually tried to help the remaining defendants by giving them additional time to object.  She saw the language, "COMES NOW Mackoff Kellogg Law Firm, Charles Peterson, as Successor Trustee of the WaMu Mortgage Pass-Through Certificate Series 2007-OA3 Trust." Instead of objecting, Chase tried to bring the settled parties back into the case, but the Judge denied. This strategy back-fired on Chase.

A highly experienced, thirty-year attorney "bizlaw" at the expert online Just Answer provided this answer:
The settlement agreement would bind all persons who were parties to the lawsuit if they did not challenge the authority of the trustee to enter into the settlement agreement on the basis he or it was not authorized to act on behalf of them.  Because they had the opportunity to object, the approval of the settlement will be res judicata and those parties will be precluded from challenging the settlement. Plaintiff operated on the basis that Successor Trustee had authority which was apparently not denied.  The Court gave any party the opportunity to object.  That failure to object is what makes it res judicata.

The following are from PACER:

 Case 1:10-cv-00119-CSO Document 126 Filed 3=03/05/12

UNITED STATES DISTRICT COURT

DISTRICT OF MONTANA
BILLINGS DIVISION
William J. Paatalo, "Pro Se",

                             Plaintiff,

          vs.                       

J.P. Morgan Chase Bank, N.A., et al.

                             Defendants.
                                               
))))))))
)
)
)

Case No. 1:10-cv-00119-CSO-RFC

JOINT STIPULATION TO

DISMISS WITH PREJUDICE

         
          Pursuant Fed.R.Civ.P. 41(a)(1)(A)(ii), Plaintiff and Defendant Mackoff Kellogg Law Firm – Charles J. Peterson as Successor Trustee to WAMU Mortgage Pass–Through Certificate Series 2007-OA3 Trust, hereby stipulate to the dismissal of Defendant Mackoff Kellogg Law Firm – Charles J. Peterson as Successor Trustee to WAMU Mortgage Pass–Through Certificate Series 2007-OA3 Trust from this action with prejudice.  Each party shall bear his or its own costs and attorneys' fees.
          DATED this 2nd day of March, 2011.



/s/ Jason J. Henderson                 
Jason J. Henderson, Attorney #11414
Attorney for Defendant MACKOFF KELLOGG LAW FIRM – Charles J. Peterson as successor TRUSTEE 


03/02/2012125 STIPULATION of Dismissal With Prejudice by The Mackoff/Kellogg Law Firm. (Henderson, Jason) (Entered: 03/02/2012)

03/05/2012126 ORDER re 125 Stipulation of Dismissal filed by The Mackoff/Kellogg Law Firm. The Court will treat the Joint Stipulation as a Motion to Dismiss With Prejudice and will grant the motion unless any party objects on or before 3/19/2012. Signed by Magistrate Carolyn S Ostby on 3/5/2012. (Hard copy mailed to Plaintiff Paatalo via USPS.) (POC, ) (Entered: 03/05/2012)


03/20/2012  Remark - Pursuant to Court's Order dated 3/5/2012 (Doc. 126), and no objections filed, Defendant The Mackoff/Kellogg Law Firm has been dismissed from the case. (POC ) (Hard copy mailed to Plaintiff Paatalo via USPS.) (Entered: 03/20/2012)




 /s/ William J. Paatalo     
William J. Paatalo
Plaintiff, Pro Se


                                     

LENDER PROCESSING SERVICES (LPS) BUYING UP HOMES AT AUCTIONS? address documents!

LENDER PROCESSING SERVICES (LPS) BUYING UP HOMES AT AUCTIONS? address documents!

Paatalo v. JPMorgan Chase Bank, NA -- Court Ruling June 28, 2012



"INJUSTICE ANYWHERE IS INJUSTICE EVERYWHERE."

 

 

WILLIAM J. PAATALO, Plaintiff,
v.
J.P. MORGAN CHASE BANK, N.A.; BANK OF AMERICA, N.A.; MACKOFF KELLOGG LAW FIRM; LPS FIELD SERVICES, INC.; and LENDER PROCESSING SERVICES, INC., Defendants.

Cause No. CV 10-119-BLG-CSO.
United States District Court, D. Montana, Billings Division.
June 28, 2012.

ORDER

CAROLYN S. OSTBY, Magistrate Judge.
Pending before the Court are the following motions:

(1) Plaintiff William Paatalo's (hereafter "Paatalo") Motion for Partial Summary Judgment (Court Doc. 137);
(2) Chase's Motion for Summary Judgment (Court Doc. 186); and
(3) Paatalo's Motion to Re-Open Discovery (Court Doc. 212).

The remaining defendant, Bank of American N.A. ("BANA"), joins Chase's Motion for Summary Judgment in its entirety. Court Doc. 193. Having reviewed these motions and authorities presented thereon, the Court rules as follows.

I. BACKGROUND

The following facts are taken primarily from the documents presented with Chase's motion for summary judgment. Other than as set forth below, Paatalo does not challenge the authenticity of these documents. As noted below, he did not file a Statement of Genuine Issues, as required by the Local Rules. The Court includes here only those facts relevant to resolving the pending motions.
On January 30, 2007, Paatalo purchased residential property in Nye, Montana. He owned two other homes at the time. Court Doc. 188-1 at 80-81. He had worked in the mortgage industry about seven years, doing a large percentage of his work with Washington Mutual. Id. at 34, 42, 52.
To finance his purchase, he borrowed $294,000 from Washington Mutual Bank FA, executing an Adjustable Rate Note ("Note") (Court Doc. 188-5) and a Deed of Trust (Court Doc. 188-6). Although Paatalo has refused to testify that he signed the documents, he has not denied that he did so. Court Doc. 188-1 at 140 (testifying that the signatures "could be" his). He has acknowledged that he did sign an adjustable rate note and a deed of trust on January 31, 2007, and that he then borrowed $294,400 from Washington Mutual Bank, FA. He attached an unexecuted copy of the Deed of Trust as Exhibit 4 to his Complaint and affirmatively alleged in his Complaint that he is the owner in the Deed of Trust. Court Doc. 2 at 5, ¶ 20 and Exh. 4. He acknowledges that the signatures on the executed documents appear to be his, as do the initials. Court Doc. 188-1 at 141-43.

In the Note, Paatalo promises to repay the principal sum in monthly payments, with interest. Court Doc. 188-5 at 1. He acknowledges in the Note that the Lender may transfer it and that a transferee would thereafter be the "Note Holder." Id. In the event of Paatalo's default, the Note gives the Note Holder the right to accelerate the principal balance due and to collect late charges, fees and expenses in enforcing the Note. Id. at 4. The Note reflects a blank indorsement signed by Cynthia Riley, a Vice President of Washington Mutual Bank FA. Id. at 6.

The Deed of Trust is identified as a "Trust Indenture Under the Small Tract Financing Act of Montana." Court Doc. 188-6 at 1. It identifies the lender as Washington Mutual Bank, FA, and Stillwater Abstract & Title as the Trustee. Id. at 1-2. The Deed of Trust gave notice to Paatalo that the Lender could sell its interest in the Note:

The Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A sale might result in a change in the entity (known as the "Loan Servicer") that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law.

Id. at 12. The Deed of Trust also allows the Lender to remove the trustee and to appoint a successor trustee, who "shall succeed to all the title, power and duties conferred upon Trustee herein and by Applicable Law." Id. at 13-14.

Washington Mutual sold Paatalo's mortgage loan to WAMU Asset Acceptance Corporation on May 27, 2007, pursuant to a Mortgage Loan Purchase and Sale Agreement and Term Sheet between said companies. Court Docs. 190 at 2 (Barbara Campbell Aff.), 188-8 (Mortgage Loan Purchase and Sale Agreement), and 188-9 (Term Sheet). WaMu then deposited the mortgage loan into the WaMu Mortgage Pass-Through Certificates Series 2007-OA3 Trust ("Trust"), pursuant to a Pooling & Servicing Agreement. Court Docs. 188-10, 188-11 at 22. According to these documents, the 207-OA3 Trust then owned Paatalo's Note. LaSalle Bank National Association was the initial Trustee of the Trust (Court Doc. 188-10 at 2) and in October 2009 Bank of America became Trustee of the Trust. Court Doc. 188-12.

On September 25, 2008, the United States Office of Thrift Supervision seized Washington Mutual Bank and placed it into an FDIC receivership. Court Doc. 188-14. Chase then purchased the assets of the failed Washington Mutual Bank from the FDIC. Court Doc. 188-15 at 13. Chase specifically did not assume any liabilities of Washington Mutual. Id. Chase took possession of Washington Mutual's mortgage files, including Paatalo's original Note and Deed of Trust. Court Doc. 191 at 2.
Paatalo missed several mortgage payments in late 2008 and early 2009. Court Doc. 188-1 at 153-54. He again stopped making payments in September 2009. Id. On January 21, 2010, Chase filed an Assignment of Trust Indenture (from Chase to LaSalle Bank), Substitution of Trustee (LaSalle Bank substituting Charles Peterson as Successor Trustee in Paatalo's Deed of Trust), and Notice of Trustee's Sale on June 1, 2010. Court Docs. 188-17, 188-18, 188-20. On April 21, 2010, Charles Peterson, as Successor Trustee, cancelled the sale. See Court Doc. 188-1 at 171-72; Court Doc. 2, Exh. 12.

Paatalo has made no payments since October 2011. Court Doc. 201 at 3, ¶ 11. As of February 7, 2012, Paatalo's unpaid principal balance on the loan was $307,422.59.

Additional facts as pertinent to each count are recited below.

II. DISCUSSION

A. Summary Judgment Standard

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id.

Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. "A moving party without the ultimate burden of persuasion at trial — usually, but not always, a defendant — has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of his contention that the dispute exists. Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586, n.11. Again, the opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson, 477 U.S. at 248; T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F .2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Anderson, 477 U.S. at 248 ("summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party").

To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita, 475 U.S. at 587 (quotation omitted).

In resolving a summary judgment motion, the Court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed, Anderson, 477 U.S. at 255, and all reasonable inferences that may be drawn from the facts placed before the Court must be drawn in favor of the opposing party, Matsushita, 475 U.S. at 587 (citation omitted).

Finally, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

B. CHASE'S MOTION FOR SUMMARY JUDGMENT

(1) Initial Findings

The Court has repeatedly reminded Paatalo that pro se litigants are bound by the Local Rules. See, e.g., Court Docs. 34 at 42, 45; 76 at 5, 199 at 1. As Chase notes in its Reply Brief, Paatalo's response opposing Chase's motion for summary judgment violates several Local Rules. Court Doc. 206 at 5-6. Most importantly, Paatalo failed to follow Local Rule 56.1(b), which requires that a party opposing a motion for summary judgment must file a Statement of Genuine Issues, and that the Statement must:
(1) set forth in serial form each fact on which the party relies to oppose the motion;
(2) cite a specific pleading, deposition, answer to interrogatory, admission or affidavit before the Court to support each fact; and
           (3) be filed separately from the . . . brief.

The law is clear that by failing to file a Statement of Genuine Issues, Paatalo is deemed "not to raise a triable issue of material fact as to the claims on which the moving party seeks summary judgment." Peterson v. Time Ins. Co., 2012 WL 1755166 (D. Mont. 2012) (citing Deirmenjian v. Deutsche Bank, A.G., 2010 WL 3034060 at *7 (C.D. Cal. July 30, 2010)). Summary judgment may properly be entered for Chase and BANA on this basis alone. Id.

The motion is also properly granted if the Court considers the arguments presented by Paatalo in his brief opposing Chase's motion. Court Doc. 220. Paatalo's brief fails to meaningfully address the arguments and authorities that Chase presents in its Motion (Court Doc. 186), Supporting Brief (Court Doc. 187), and Statement of Undisputed Facts (Court Doc. 192). Paatalo presents several frivolous arguments that clearly lack any merit, such as (1) Paatalo's contention that the Defendants lack standing where the Defendants have asserted no claims, and (2) his contention that the Deed of Trust is unenforceable because "there is no case and controversy so the court lacks jurisdiction over the subject matter." Court Doc. 200 at 20, 22.

Paatalo also presents many other arguments for which he cites no authority. The Court is not required to do Paatalo's legal research for him or comb the record on his behalf for factual support for his claims, and it would not be proper for the Court to do so. See Western Radio Services Co. v. Qwest Corp., 678 F.3d 970 (9th Cir. 2012). "Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived." United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010). Paatalo's arguments that are not supported by citation to legal authority or to the record are rejected.

Arguments that Paatalo presents addressing issues arguably pertinent to Chase's motion are discussed below.

(2) Chase's Right to Foreclose on the Note/Deed

The fundamental premise of most of Paatalo's claims is his contention that Defendants had no legal right to initiate a non-judicial foreclosure. Paatalo contends that Chase is not a holder in due course of the Note and was not otherwise entitled to initiate non-judicial foreclosure proceedings under the Note and Deed of Trust. See Court Doc. 2 at 5-6.

In its summary judgment brief, Chase contends, inter alia, that it is the holder of the Note and is entitled to enforce it pursuant to the Uniform Commercial Code, MCA § 30-3-204. This statute provides that if an indorsement is made to an identified person, it is a "special indorsement." But if an indorsement is not a special indorsement, it is a "blank indorsement." MCA § 30-3-204(2). "When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed." Id.

Chase contends that because it is in possession of Paatalo's Note, which contains a blank indorsement, it is a "holder" within the UCC's definition (see MCA § 30-1-201(2)(v)(i)) and may enforce it. See MCA § 30-3-301 (a holder of an instrument is a "person entitled to enforce" it). Chase cites numerous recent decisions holding that, despite securitization of a note, a holder of a note is entitled to enforce it. See, e.g., Horvath v. Bank of New York, N.A., 641 F.3d 617, 621 (4th Cir. 2011) (holding, under Virginia law, that whoever possesses a note endorsed in blank has full power to enforce it and the deed of trust executed contemporaneously with it); Edwards v. Ocwen Loan Servicing, LLC, 2012 WL 844396 at * 5 (E.D. Tex. 2012); Corales v. Flagstar Bank, FSB, 822 F.Supp. 2d 1102, 1107-08 (W.D.Wa. 2011).

Paatalo's response does not discuss these authorities cited by Chase. See Court Doc. 200 at 10-12. Instead, he contends that Chase has the burden of establishing the validity of his signature and that they have not done so. Court Doc. 200 at 10. Although he mistakenly cites the UCC 3-308, the Court presumes that Paatalo is relying on MCA § 30-3-307, which provides in pertinent part:
In an action with respect to an instrument, the authenticity of and authority to make each signature on the instrument is admitted unless specifically denied in the pleadings. If the validity of a signature is denied in the pleadings, the burden of establishing validity is on the person claiming validity, but the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature.
Paatalo's reliance on this statute does not raise a genuine issue of material fact that precludes summary judgment. He does not state in which "pleading" he "specifically denied" the validity of his signature. In his only pleading in this action, his Complaint (see Fed.R.Civ.P. 7(a)), he does not specifically deny signing the Note and Deed of Trust. His Complaint instead alleges that he did enter into a loan agreement with Washington Mutual Bank, N.A., on January 30, 2007, and that he "relied upon the due diligence of the apparent `Lender' (i.e., actually the Loan Seller) in executing and accepting the closing documents." Court Doc. 2 at 5 ¶ 15, and at 9 ¶ 32. His somewhat conflicting allegation, made only on information and belief, that the Note was not executed by him "or if it was executed, has long since been lost or intentionally destroyed, or paid in full, or assigned to a third party. . . ." (Court Doc. 2 at 5, ¶ 18) is not a specific denial. The Official Comment to this UCC section states that "[i]n the absence of such specific denial the signature stands admitted, and is not in issue."

Although Paatalo raises questions about how his signature appears on the Note and Deed of Trust (see, e.g., Court Doc. 200 at 5, 19-20), these questions were not raised in a timely manner, as this Court noted in a prior Order. Court Doc. 203 at 6. Furthermore, he has not stated how the allegedly altered documents differ in content from the documents he signed and thus does not raise genuine issues of material fact on this issue.

In addition, Paatalo's allegation that the deed of trust is fatally defective because the notarial seal lacks an execution date also fails. It is true that MCA § 1-5-609 requires that a notarial act be evidenced by, inter alia, the date on which the act was performed. But the Court concludes that the lack of the date on the notarial seal here does not render the deed of trust invalid for several reasons. First, Paatalo did not raise this claim in a timely manner. Second, he has cited no authority supporting his position that absence of the date of the notarial act renders the notarized document invalid. Third, as noted above, Paatalo already has acknowledged that did sign a deed of trust on January 31, 2007, when he borrowed $294,400 from Washington Mutual Bank, FA. As discussed above, he affirmatively alleged in his Complaint that he is the owner in the Deed of Trust. Court Doc. 2 at 5, ¶ 20 and Exh. 4. He acknowledges that the signature on the deed of trust appears to be his, as do the initials. Court Doc. 188-1 at 141-43. And fourth, the deed of trust bears the notation on its first page that it was recorded in Stillwater County, Montana, on January 31, 2007. Because Paatalo acknowledges that he signed a deed of trust on January 31, 2007, and because it was recorded that same day, it can be ascertained that the notarial act also occurred on that day. For all these reasons, there is no basis to conclude that the deed of trust is invalid merely because the notary public did not indicate the date of the notarial act. Although there appears to be no Montana authority on this question, other courts addressing the issue are in accord. See, e.g., Lasalle Bank N.A. v. Zapata, 2009-Ohio-3200, 921 N.E.2d 1072 (Ohio Ct. App. 6th Dist. Ottawa County 2009) (mortgage was valid and enforceable by mortgagee's assignee, even if it had been defectively executed by being signed by mortgagor outside the presence of a notary, absent any allegation that it had been obtained by fraud); Valeriano-Cruz v. Neth, 14 Neb. App. 855, 716 N.W.2d 765 (2006) (failure of notary public to endorse his commission's expiration date on arresting officer's sworn report containing the recitations required by implied consent statute did not invalidate the report); Levitt v. 1317 Wilkins Corp., 58 NYS2d 507 (1945, Sup) (the fact that an acknowledgment bore the date of January 14, 1926, whereas the deed was dated January 14, 1927, and was recorded January 15, 1927, was held in, in effect, not to render the acknowledgment ineffective, the owner whose chain of title included such deed being held entitled to specific performance on the part of a purchaser of the property); Spero v. Bove, 116 Vt 70, 70 A2d 562 (1950) (the operative effect of a deed was held not to be defeated because the acknowledgment was undated); Hasley v. Bunte, 176 Okla. 457, 56 P.2d 119 (1936) (held that instrument was not vitiated even though neither deed nor acknowledgment of it was dated); Barouh v. Israel, 46 Wash.2d 327, 281 P.2d 238 (1955) (supporting rule that omission of date in acknowledgment is not a fatal defect).

To the extent that Paatalo argues that the security interest is unenforceable because of securitization of the Note, or because of split ownership of the Note and Deed of Trust, these arguments have recently been rejected by this Court in Heffner v. Bank of America, 2012 WL 1636815 (D.Mont. 2012), and the same reasoning is adopted here.

To the extent that Paatalo challenges the validity of the various assignments, purchase agreements, and pooling or servicing agreements, this Court concludes, as many courts have previously held, that a borrower does not have standing to challenge assignments and agreements to which it is not a party. See, e.g., Edwards v. Ocwen Loan Servicing, LLC, supra; Bank of New York Mellon v. Sakala, 2012 WL 1424665 (D. Haw. 2012) (holding that the borrower lacked standing to raise a violation of a pooling and servicing agreement). Furthermore, the Montana Supreme Court long ago rejected arguments that a note holder needed to establish title to the note and mortgage by written assignments, holding:
The note for which the mortgage was given as security . . . shows an indorsement in blank. This was sufficient evidence of title to establish prima facie ownership. It is generally held that possession of a negotiable note payable to order and indorsed is prima facie evidence of ownership . . . and the same rule applies to nonnegotiable notes. . . . .
Ingebrightsen v. Hatcher, 288 P. 1023, 1024 (1930) (citations omitted). The state continues to recognize the transferability of notes indorsed in blank by adopting the UCC provisions cited above.
Accordingly, the Court concludes that there is no genuine issue of material fact with respect to Chase's authority to enforce the Note and Deed of Trust at issue. With these conclusions as a foundation, the Court turns to the specific claims in Paatalo's complaint.

(3) Count I: Violation of the Real Estate Settlement Procedures Act

In Count I, Paatalo alleges that Chase violated the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2605, 2607, by accepting charges for rendering of real estate services "which were in fact charges for services other than those actually performed" and for "willful non-compliance by intentionally ignoring Plaintiff's `Qualified Written Requests' and not responding within the 20-day, and 60-day statutory requirements." Court Doc. 2 at 25.

Chase argues (1) that it cannot be held liable for any RESPA violations occurring before it took over as servicer of the loan on September 25, 2008, (2) that it cannot be held liable for any RESPA violation because Chase is the holder of Paatalo's Note with authority to enforce it, and (3) that it cannot be held liable for failure to respond to Paatalo's "qualified written request" (QWR) under RESPA, because Paatalo has not identified any damages he suffered as a result of the violation (citing Court Doc. 188-23 at 14-15). Chase admits that it did in fact fail to respond to Paatalo's QWR dated July 22, 2010.

Paatalo's response brief did not address Chase's arguments on his RESPA claim. Courts have held that a plaintiff must prove actual damages to recover on a RESPA claim. See, e.g., Zander v. ACE Mortg. Funding LLC, 2012 WL 601896 (C.D. Cal. 2012); Hensley v. Bank of New York Mellon, 2011 WL 4084253 at *4 (E.D. Cal. 2011). In addition, a single failure to respond to a QWR does not constitute a "pattern or practice" for purposes of RESPA. Laporta v. Bank of America, 2012 WL 938716 at *2.
In response to Chase's motion, Paatalo did not raise a genuine issue of material fact as to his alleged damages.

Accordingly, the Court will grant summary judgment to Chase on Count I.

(4) Count II: Fraudulent Misrepresentation

Count II alleges fraudulent misrepresentation claims arising from conduct that occurred before and at the loan closing on January 30, 2007. Court Doc. 2 at 26. Chase argues that it did not make any such misrepresentations and that it is not liable for any representations made by Washington Mutual. Chase did not become involved with this loan until it purchased the assets of Washington Mutual more than one year later, without assumption of Washington Mutual's liabilities. Paatalo presents no contrary evidence to raise an issue of fact. For this reason, the Court concludes that Chase is entitled to summary judgment on Count II.

(5) Count III: Breach of Fiduciary Duty

Count III also is based on conduct occurring before or at the loan closing. Paatalo alleges that defendants breached fiduciaries duties to him by fraudulently inducing him to enter into the mortgage transaction. Court Doc. 2 at 26. As noted above, Chase was not a party to the loan transaction until 2008.

Additionally, a bank does not owe a fiduciary duty unless special circumstances exist where the bank acts as an advisor or asserts influence in a customer's business. First Security Bank v. Abel, 184 P.3d 318, 323-24 (Mont. 2008). There is no allegation or contention here regarding such a special relationship.

For the above reasons, Chase is entitled to summary judgment on Count III.

(6) Count IV: Unjust Enrichment

Paatalo's unjust enrichment claim is based on fees he paid to obtain credit and in settlement of the loan. See Court Doc. 2 at 27. Again, Chase was not at that time involved with this loan.
Additionally, the Court has concluded above that Chase, as a holder of the Note, does have the authority to enforce it. Accordingly, any contention that Chase is unjustly enriched by virtue of enforcing its rights as a holder, must fail. Chase is entitled to summary judgment on Count IV.

(7) Counts V, VI: Civil Conspiracy, Civil RICO

Chase argues that, to the extent that Paatalo's claims are based on his allegation that Chase did not have legitimate authority to enforce his Note, they fail. Court Doc. 187 at 25. Chase also argues: (1) that Paatalo has no related damages and that there is no genuine dispute that he has not suffered concrete damage as a result of the alleged conspiracy or RICO, (2) that Paatalo cannot prove any unlawful or predicate acts; (3) that Paatalo cannot prove that Chase engaged in a pattern of racketeering activity; and (4) that foreclosing on a home does not support a RICO violation.
Paatalo's response brief does not mention his RICO claim. Other courts have held that activities leading up to and including a foreclosure are "nothing more than conduct undertaken in the ordinary course of business or litigation and cannot be fairly characterized as extortion that is independently wrongful under RICO." Zander, 2012 WL 601896 at *3 (citing Book v. Mortg. Elec. Registration Sys., 608 F.Supp.2d 277, 282 (D.Conn. 2009)) and Dost v. Northwest Trustee Servs., Inc., 2011 WL 6794028 at * 12 (D. Or. 2011).

With regard to his civil conspiracy claim, Paatalo only states that defendants should not be permitted to collect payments from him or enforce his loan documents because of their "egregious violations in contravention of the [Pooling & Servicing Agreement] and [Mortgage Loan Purchase Agreement]." Court Doc. 200 at 26. Because the Court has previously concluded that Chase may enforce the Note, and that Paatalo has no standing to challenge agreements to which he is not a party, this contention fails.

For these reasons, the Court concludes that Chase is entitled to summary judgment on Counts V and VI.

(8) Counts VIII, XII: Quiet Title, Slander of Title

In Count VIII, Paatalo alleges that he is the owner and/or entitled to possession of the subject property and that Defendants have no legal or equitable right, claim or interest in said property. He seeks a declaration from the Court that the title to the subject property is vested in him alone. Court Doc. 2 at 29-30. But Paatalo has not shown that the debt has been satisfied or that it is unenforceable as a matter of law, as he must to be entitled to a quiet title decree. See Montana Valley Land Co. v. Bestul, 253 P.2d 325, 328 (Mont. 1953). Given the Court's findings above with respect to Chase's authority to enforce the Note, summary judgment on this Court must be granted to Chase .
Similarly, Count XII alleges that defendants falsely disparaged Paatalo's title to the property. Court Doc. 2 at 32. Based on the above findings, this claim against Chase also fails.

(9) Count IX: Violation of MUTPA

The MUTPA prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce[.]" § 30-14-103, MCA. The Montana Supreme Court has defined an unfair act or practice as "one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." Rohrer v. Knudson, 203 P.3d 759, 764 (Mont. 2009). The Montana Legislature enacted these provisions "to protect the public from unfair or deceptive practices." Tripp v. Jeld-Wen, Inc., 112 P.3d 1018, 1026 (Mont. 2005); see also MCA § 30-14-201.

Paatalo's Count IX does not explain what Chase allegedly did that violated the MUTPA. Court Doc. 2 at 30. Chase contends that it is entitled to summary judgment on Count IX because it had authority to cause foreclosure proceedings to be commenced when Paatalo defaulted on his Note. Chase further contends that the MUTPA claim against it fails because Paatalo has no ascertainable damage from the nonjudicial foreclosure or other action by Chase. Court Doc. 187 at 34-35.

Paatalo's response fails to raise a genuine issue of material fact on Count IX. Accordingly, summary judgment on this claim must issue.

(10) Count XI: Violation of the FDCPA

Chase contends that Count XI also fails because Chase has established that it has the right to enforce the Note and Deed of Trust. Paatalo's only response is an otherwise unexplained statement that this claim has been "colored." Court Doc. 200 at 26. Again, Paatalo fails to point to any issues of fact that preclude summary judgment to Chase as a matter of law.

(11) Count XIII: Trespassing

In Count XIII, Paatalo claims that the defendants, including Chase, illegally trespassed on his property on or about March 4, 2010, and that he suffered damages as a result. Court Doc. 2 at 32-33.
Chase does not dispute that its agents entered the subject property on March 4, 2010. But Chase contends that it is entitled to summary judgment on this claim because the Deed of Trust authorized Chase to enter the property "if it suspects it has been abandoned." Court Doc. 187 at 37. Chase states that no one had been living at the property since January 2010, Plaintiff was behind on his mortgage payments, and an inspector found shutoff notices from the electric company at the property. Id. at 37-38.

Paatalo denies that the property had been abandoned. Court Doc. 200 at 25-26. In an affidavit, he states that although the electricity was off, the propane gas tank "was sufficiently full to keep the gas heat functioning in the house" and that his neighbor had agreed to keep an eye on the property while he was away. Court Doc. 201 at 5. He states that the property was safely secured "with all my worldly possessions inside." Id. Paatalo also relies on paragraph 7 of the Deed of Trust which requires a Lender to give a borrower notice prior to making an interior inspection. Paatalo states that he was not given any notice that Chase or its agents intended to enter the property.

In its reply, Chase contends that paragraph 9 of the Deed of Trust applies, rather than paragraph 7 as Paatalo contends. Paragraph 9 provides in pertinent part:
If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument . . . or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including . . . securing and/or repairing the Property. . . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks. . . . and have utilities turned on or off.
Court Doc. 188-6 at 8. This section does not require notice to the Borrower. There is no dispute that, as of March 2010, Paatalo had failed to perform his agreement to make the periodic payments required by the Note and Deed of Trust. Because he was in default, paragraph 9 of the Deed of Trust, quoted above, gave Chase the right to access the property.

Because it had a right to enter the property, it cannot be held liable for trespass under the facts alleged. Accordingly, summary judgment must issue on Count XIII.

(12) Count XIV: Theft

By its terms, Count XIV is stated only against Defendant LPS Field Services Inc. Chase argues that it is entitled to summary judgment because Count XIV is not directed to Chase, because Paatalo has settled with LPS, and because Paatalo has produced no evidence that Chase authorized or ratified a theft of his items. Court Doc. 187 at 43-44. Chase points out that, at his deposition, Paatalo was unable to support his assertion that Chase was responsible for the theft. See Court Doc. 188-1 at 86-87. Paatalo does not respond to these arguments. Summary judgment is appropriate.

C. BANA'S MOTION FOR SUMMARY JUDGMENT

BANA filed a joinder in Chase's motion for summary judgment. Court Doc. 193. Paatalo did not respond to BANA's joinder. The Court previously dismissed all counts against BANA except Counts I (RESPA), IV (unjust enrichment), VIII (quiet title), IX (MUTPA), XI (FDCPA), XII (slander of title), and XIII (trespass).

With respect to Count I, BANA argues that a Qualified Written Request must be sent to the servicer of a loan, citing HUD's Reg. X § 3500.21(e) and Castaneda v. Saxon Mortg. Services, Inc., 687 F.Supp.2d 1191, 1199 (E.D. Cal. 2009). In Casteneda, the court held that the plaintiff's claims must be dismissed because they had not alleged that the defendant was a "loan servicer" under RESPA. Paatalo does not respond to this argument. Summary judgment for BANA on Count I must be granted.

With respect to Counts IV, VIII, IX, and XII, again Paatalo fails to address BANA's summary judgment joinder. For the same reasons that summary judgment must issue for Chase, the Court will grant summary judgment to BANA.

With respect to Count XI, BANA makes the additional argument that Paatalo cannot show that BANA is a debt collector, because a lender or a trustee is not a "debt collector" as defined by 15 U.S.C. § 1692a(6). Court Doc. 193 at 3. Paatalo does not respond to this argument. Summary judgment will be granted to BANA on Count XI.

Finally, on Count XIII, the Court notes that Paatalo has not alleged that BANA was involved in the alleged trespassing. Their liability instead is predicated on their interest in the Deed of Trust. See Court Doc. 34 at 40-41. Because the Court has concluded that Paatalo was in violation of his agreements in the Deed of Trust, and that the Lender and its agents therefore had a right to enter the property, summary judgment to BANA will issue on Count XIII.

D. PAATALO'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Paatalo's moves for partial summary judgment on Count VIII, his quiet title claim. His arguments are difficult to follow. First, he apparently contends that actions by Mackoff Kellogg should be binding on the remaining Defendants, Chase and BANA. Court Doc. 137 at 4-7. This argument fails because there is no basis set forth by which the acts of Mackoff Kellogg bind Chase or BANA, in the absence of actual or ostensible authority. See Bellanger v. American Music Co., 104 P.3d 1075, 1079 (Mont. 2004).

Paatalo also argues that the 207-OA3 Trust has no equitable claim to title to the property once the trustee (Mackoff Kellogg) has settled. But this argument apparently is based on Paatalo's mistaken identification of Mackoff Kellogg as trustee for the 207-OA3 Trust as opposed to Paatalo's Deed of Trust. The settlement with Mackoff Kellogg does not entitle Paatalo to a judgment quieting title in his favor. His motion must be denied, and summary judgment granted to Chase, as set forth above.

E. PAATALO'S MOTION TO RE-OPEN DISCOVERY

Paatalo moves to re-open discovery to obtain additional information regarding the September 25, 2008 Purchase and Assumption Agreement ("PAA") between Chase and the FDIC. The motion violates the Local Rules in various respects, most significantly because it was filed after the motions deadline and comes too late. In any event, given the rulings stated above, this motion is moot. The Court's rulings, stated above, do not rely upon the PAA. Plaintiff has not shown that anything in the "unabridged" PAA would change the controlling law and facts set forth above.

III. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that Chase's Motion for Summary Judgment (Court Doc. 186) is GRANTED, and Plaintiff's Motion for Partial Summary Judgment (Court Doc. 137) and his Motion to Re-Open Discovery (Court Doc. 212) are DENIED.
IT IS FURTHER ORDERED that Bank of America's Joinder in the Motion for Summary Judgment is GRANTED.

The Clerk of Court is directed to enter Judgment accordingly and to close this file.

Update:  http://victoryoverchase.blogspot.com/2012/07/silver-lining-in-paatalo-v-jpmorgan.html