Wednesday, November 7, 2012

THE SAGA OF THE PURCHASE & ASSUMPTION OF WASHINGTON MUTUAL BANK CONTINUES

    We have a game of veritable "Hide & Seek" among the FDIC, JPMorgan Chase Bank, and courts across America during the discovery process in cases involving foreclosed homeowners.  JPMC hires law firms to obfuscate and delay discovery at the most basic of level.  Allegedly these attorneys have delivered fraudulent documents.  The intent is to wear the homeowner down so that they simply will give up and abandon their fight.

Since Washington Mutual Bank was acquired by JPMorgan Chase Bank NA (JPMC) through the FDIC as Receiver much controversy has arisen as to the veracity of Chase's foreclosure standing in cases involving borrowers with Washington Mutual Bank, Washington Mutual Bank FA or their affiliates.  Both JPMC and the FDIC have obfuscated the truth about their behind-closed-door agreement for the purchase of Washington Mutual Bank.  The end result is that thousands of homeowners have been foreclosed by JPMC.  Families and communities continue to be hurt in the name of greed.

Affidavits given by Jeffrey Thorne and Michael D. Zarro filed in two other court cases. contend that the true and complete Purchase & Assumption Agreement consists of approximately 118 pages.  However JPMC has filed a 39 page Purchase & Assumption Agreement that contains no loan inventory or even a book value for these mortgage loans.

The drama continues as FDIC and JPMC through their battery of attorneys fight discovery of the true and complete PAA.  One such case, Kelley v. JPMorgan Chase Bank NA et al, filed in the Bankuptcy Court in the Northern District of California, lays out the extraordinary struggle between the plaintiff and defendants to obtain what FDIC alleges to be a public document available on the internet. 

Herein lies the latest chapter in this saga:

On November 5, 2012 Robert Schoppe, Assistant Director of the Division of Resolutions & Receiverships, FDIC, at Dallas, Texas, prepared a declaration submitted in the US Bankruptcy Court for the Northern District of California, Division 6, as a result of a Third Party Subpoena in an adversarial proceeding James Madison Kelley v. JPMorgan Chase Bank NA et al (Case No. 10-05245).

Schoppe has personal knowledge of how the FDIC maintains its official records and documents in the regular courts of its business in administering the Receivership for Washington Mutual Bank (WaMu).  He has access to all such official records and documents. 

The Purchase and Assumption Agreement (PAA) entered into among the FDIC as Receiver of WaMu, the FDIC in its corporate capacity, and JPMorgan Chase Bank, NA (JPMC) was finalized for signature and signed on September 25, 2008.  Schoppe declared that after signing that the parties realized corrections needed to be made. On September 28, 2008, FDIC-Receiver emailed to JPMC proposed corrections to the PAA.  On September 28 or 29, 2008, the parties signed the corrected PAA. 

Thus five PAA documents exist as described below:
  1. The PAA finalized for signature on September 25, 2008
  2. The PAA (1) was then signed on September 25, 2008. [Schoppe states that there is no difference between documents 1 & 2 other than the actual signatures.]
  3. A corrected PAA that was exchanged with JPMC on September 28, 2008.
  4. The PAA that was exchanged with JPMC on September 28, 2008, showing electronic signatures.
  5. The "final " PAA signed on September 28 or 29, 2008 known as the "Final Executed P&A Agreement." Schoppe declared that the words "Execution Copy" are located in the footer of the document and that the "Final Executed P&A Agreement" is the final PAA.  Schoppe claims that other than the electronic signatures (as opposed to actual signatures) that there are no differences between the documents #4 and #5. The "Final Executed P&A Agreement" was attached as Exhibit 1 to his June 15, 2012 Declaration (Dkr. No. 212, Ex. 1).  This alleged "Final Executed P&A Agreement" is a public document, available on the internet at www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf
Schoppe further stated that the alleged "Final Executed P&A Agreement, eight 1-page addenda were entered into and attached collectively as Exhibit 2 to his June 15, 2012 Declaration.

Schoppe declares under penalty of perjury that the "Final Executed P&A Agreement" and attached addenda described above is "the operative version of the PAA used to administer the Washington Mutual Bank Receivership.

This alleged final PAA consists of 44 pages.  No inventory of home mortgages is included.

JPMC never gave the FDIC an inventory of the mortgages. 

As of this date the documents filed with this Declaration have not been uploaded to PACER. 

You may view the Schoppe 11/5/2012 declaration at  Declaration of Robert Schoppe (FDIC) 11/5/2012

Monday, November 5, 2012

JPMorgan Chase Bank Loses in Fannie Y Freddie Lawsuit



Decision in FHA v JPMorgan Chase Bank Issued November 5, 2012

California Homestead Exemption: Automatic vs. Declared

WHAT IS A HOMESTEAD DECLARATION? 

The HOMESTEAD DECLARATION is document that is used to declare your homestead and thereby obtain certain protections for some of the equity that may exist in your home.
 BACKGROUND
Under California law, homeowners are entitled to protection of a certain amount of equity in their home. The amount protected varies depending on the age, marital status, and income of the property owner.

The homestead exemption does not prohibit the sale of the property. The property can be sold if the sale would produce enough money to:
  • Pay all existing liens on the property
  • Pay off all mortgages and loans secured by the equity in the home
  • Pay the costs of selling the home
  • Allow the homeowner to keep equity in the amount protected by the homestead exemption
Rather than prohibiting the sale, the homestead exemption merely ensures that the homeowner receives the amount of the exemption before the creditors are paid from the sale proceeds. The exempt funds received from the voluntary sale of the property remain exempt from debt collection attempts for six months, and can be used to purchase another residence.

The homestead exemption does not apply in the following situations:
  • Judgments obtained prior to the recording of the homestead declaration
  • Debts secured by encumbrances on the premises executed by the owner before the declaration was recorded
  • Obligations secured by mechanics' liens on the premises
  • Voluntary encumbrances on the premises, such as mortgages or deeds of trust
  • Judgments for child, family, or spousal support 
PROCEDURE

There are two types of Homestead Exemptions:
Automatic: applies only upon forced sale of the property. The automatic exemption requires continuous residence from the date the judgment creditor's lien attaches until the date the court determines that the dwelling is a homestead. If a creditor attempts to sell the home, the burden of proof is on the homeowner to prove to the court that an automatic homestead exemption exists.
Declared: applies both to forced and voluntary sales of the property. Exempt proceeds from a voluntary sale are protected if another home is purchased within 6 months. Homeowners must reside in the dwelling on the date the homestead declaration is recorded. If a creditor attempts to sell your home, the bu
rden of proof is on the creditor to prove to the court that your homestead declaration is invalid.

Requirements:
The homestead exemption applies only when certain requirements are met. These requirements, described in CCP 704.710, are:
  1. The residence must be the principal dwelling of the judgment debtor or his or her spouse.
  2. The judgment debtor, or their spouse, must reside at the dwelling on the date the judgment creditor's lien attached.
  3. The judgment debtor and/or their spouse must reside continuously thereafter until the date of the court determination that the dwelling is a homestead.
Eligible properties:
Homestead exemptions are available for a variety of dwelling types.  "Dwelling" means a place where a person resides and may include but is not limited to the following:
  1. A house or mobile home, together with the outbuildings and the land upon which they are situated.
  2. A boat or other waterborne vessel.
  3. A condominium, as defined in Section 783 of the Civil Code.
  4. A planned development, as defined in Section 11003 of the Business and Professions Code.
  5. A stock cooperative, as defined in Section 11003.2 of the Business and Professions Code.
  6. A community apartment project, as defined in Section 11004 of the Business and Professions Code.
Amount of exemption:
The amount of the exemption varies, depending on the age, marital status, and income of the property owner. Under CCP 704.720 - 704.730, the exemptions are:
  1. $75,000 unless the judgment debtor or their spouse who resides in the homestead is a person described below in (2) or (3)
  2. $100,000 if the judgment debtor or spouse is a member of a family unit (see definition below*), if at least one member of the family unit owns no interest in the homestead, or has only community property interest in the homestead with the judgment debtor.
  3. $175,000 if the judgment debtor who resides in the homestead is at the time of the sale  either (a) a person 65 years old, (b) a person physically or mentally disabled and as a result of that disability unable to engage in substantial gainful employment, or (c) a person 55 years old with a gross annual income less than $15,000, or, if the judgment debtor is married, a gross annual income, including that of the spouse, of not more than $20,000, and the sale is involuntary.

HOW MUCH IS PROTECTED BY THE "HOMESTEAD" EXEMPTION?

California Code of Civil Procedure sections 704.720 - 704.730 provide the exemption along with certain dollar amounts depending on your situation. Make sure to read these code sections if you are interested in knowing what you qualify for. By way of example, an unmarried individual under age 65 with no dependents or disabilities is entitled to an exemption of $75,000.
 Source:  http://www.1stoplegalforms.com/FormLs/FL_0101.asp?Page_ID=1

 California attorney Marlene S. Cooper writes in The Pasadena/San Gabriel Valley News Journal:
  • In these days of rampant debt faced by many of us, protecting the family home through a declaration of homestead could take on new significance.

    When financial obligations go unpaid, a person's creditor can go to court to seek payment of the debt. If a judgment is obtained against the debtor, the creditor can then file a judgment lien against the person's real estate, including the debtor's personal residence.

    Many times unsecured creditors simply wait for the house to be voluntarily transferred (or re-financed) and collect on the debt from the escrow proceeds; however, sometimes the house is sold involuntarily in foreclosure by the holder of a trust deed on the property or a sale is forced in execution of a money judgment.

    Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale of the home by creditors. It can ensure that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy.

    The [California] homestead exemption can be obtained in two ways: (1) the automatic homestead exemption granted as a matter of law to every homeowner, and (2) an express declaration of homestead by the homeowner which is notarized and recorded with the county recorder.

    The amount of the exemption may be $50,000, $75,000 or $150,000 according to which statutorily-defined class of persons the homeowner falls into. The amount of equity protected is the same for each type of homestead exemption; however, they operate quite differently in terms of the protection afforded.

    The declared homestead provides much greater protection for the property owner than the automatic homestead.

    With the automatic homestead, the homeowner['s equity] is protected in the event of a forced foreclosure sale but not a voluntary sale. With the declared homestead, however, the exempt proceeds from a voluntary sale may be reinvested within six months, thus allowing the debtor to invest in another residence.

    With the automatic homestead, judgment liens attach to all interests in the property that are subject to the enforcement of money judgments. For the declared homestead, however, a judgment lien filed after the declaration of homestead can only attach to equity in an amount greater than the homestead exemption and any preexisting liens on the property.

    Another important distinction is that the declared homestead survives the death of the homestead owner whereas the automatic homestead does not.

    A Declaration of Homestead form can be purchased at office supply or legal stationery stores. For those who are internet savvy, the form can also be downloaded from the Registrar-Recorder's website in the real estate section (www.lavote.net). The fee to have the Declaration notarized and recorded is approximately $25.00. There is certainly nothing to lose but much to gain by taking the simple step of filling out and recording the declaration.