Saturday, August 17, 2013

BARRIONUEVO CASE GOES DOWN IN FLAMES BUT VALUABLE LESSONS TO BE LEARNED.

 See prior order:  BARRIONUEVO v. CHASE BANK, NA, Dist. Court, ND California  2012 (Docket No. 41)

__________________________________________________________________________
EXCERPTS OF:

JOSE BARRIONUEVO, et al., Plaintiffs,
v.
CHASE BANK, N.A., et. al., Defendants.

No. C-12-0572 EMC.
United States District Court, N.D. California.
August 12, 2013.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(Docket No. 63)

EDWARD M. CHEN, District Judge.
<excerpts>
Despite plenary discovery, however, Plaintiffs have failed to produce competent evidence that Chase lacked the authority to foreclose. Plaintiffs cannot rely on allegations in their complaint to create a genuine issue. Gasaway v. N.W. Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994) (Nonmoving party must "go beyond the pleadings and show `by her own affidavits, or by the depositions, answers to interrogatories, or admissions on file,' that a genuine issue of material fact exists." Id.at 885 (quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553). "[A]n adverse party may not rest upon the mere allegations or denials of [her] pleadings." Fed. R. Civ. P. 56[e].)

Instead, Plaintiffs rely heavily on an audit report prepared by Michael Carrigan ("Carrigan Audit"), an initially disclosed but later withdrawn expert witness. However, the Carrigan Audit does not raise a genuine issue because it cannot be relied upon.See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1008 (9th Cir. 2007) ("[e]xpert opinion is admissible and may defeat summary judgment if it appears the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit"; finding expert opinion did not create a genuine issue of material fact because expert identified no facts supporting his opinion). Here, Carrigan's opinion — that the Loan was securitized and the Property sold to the Trust — is based on insufficient facts and amounts to speculation.
 . . .
See id. (bold emphasis in original; italics emphasis added). This quote only indicates Mr. Carrigan performed a search on the United States Securities and Exchange Commission (SEC) website and located a possible trust into which the Loan and Property may have been securitized. Once Mr. Carrigan identified a potential trust, he was able to locate this trust using the Bloomberg database. Significantly, however, Mr. Carrigan admits in deposition he was not able to locate the Loan and Property using "loan-level detail." This deficiency is significant because Certified Forensic Loan Auditors, LLC advertises the fact that loan-level detail is how a real property loan is identified to have been securitized into a trust.[3] Accordingly, Mr. Carrigan admitted in deposition that he "lacked hard evidence of securitization." See id. (Ex. F to Hedger Decl.) (Carrigan Depo., at pp. 19-20). His assertion that the loan in question was securitized in 2006 is thus speculative. Plaintiffs fail to raise a genuine issue as to whether the loan was securitized. This alone would warrant granting summary judgment in favor of Chase.
.  .  .
Chase has produced evidence to support an inference that the Property was not securitized before 2008, when Chase purportedly obtained a beneficial interest in the Property. It has provided sworn testimony that it possesses signed originals of the note and deed of trust to the Property. See Docket No. 75-1 (Supplemental Waller Decl., ¶ 5 and Ex. A thereto). Chase also produced electronic database records which indicates it had a beneficial interest in the Property at the time of foreclosure. These records consist of recent screen captures of Chase's business records found in a collateral loan file that are maintained electronically on Chase's computer systems. First, a screen capture from this electronic database indicates that the "ACQUISITION TYPE" of the Loan in questioin is "bank originated," and not merely a service agreement for a pooled loan. See Docket No. 75-2 (Ex. B to Supplemental Waller Decl.). Second, another screen capture from the same internal electronic database lists Chase as the "investor" or owner of the Loan, and there is no record of any transfer of Chase's interest to another investor. See id. (Ex. C to Supplemental Waller Decl.). See id. (Exs. C and D to Supplemental Waller Decl., ¶¶ 10-11). These documents are corroborated by Carrigan's deposition testimony. See Docket No. 63-1 (Ex. F to Hedger Decl.) (Carrigan Depo., at p. 32) ("Q: Is there any other entity besides JP Morgan Chase, to your knowledge, that has asserted ownership of the loan in question? A: No."). Finally, Plaintiffs' loan number is not listed among the 646 loans originated by Washington Mutual which were securitized into the trust. See id.(Ex. E to Supplemental Waller Decl.).

Accordingly, Chase has produced sufficient evidence upon which a jury could reasonably conclude that the Loan was sold to the Trust in 2006; thus, Chase acquired ownership of the Loan and had sufficient authority to foreclose on the Property.
. . . 
Again, Plaintiffs have produced no evidence to show that the PAA, the 2008 agreement between Chase and WaMu, did not convey the Loan and Property to Chase. By contrast, Chase has offered evidence the Loan and Property had been so conveyed. See Docket No. 63-2 (Waller Decl., ¶ 8); Docket No. 75-1 (Suppl. Waller Decl., ¶ 10) ("The `investor' is the entity that currently owns the loan. The investor name highlighted is [Chase]."); Docket No. 75-2 (Ex. C to Suppl. Waller Decl.). Second, Plaintiffs' contention that Chase acted with a reckless disregard for the truth is contradicted by Waller's sworn affidavit indicating Chase possesses the original promissory note and deed of trust securing the Property. See Docket No. 63-2 (Waller Decl., ¶ 7); Docket No. 75-1 (Suppl. Waller Decl., ¶ 5) (copies of the original note and deed of trust produced as Ex. A to the Suppl. Waller Decl.). Because Plaintiffs have failed to meet their burden that Chase acted with a reckless disregard for the truth, recordation of the foreclosure documents is presumed privileged.

11 comments:

  1. The lesson to be learned is that CFLA is a known scam outfit, and their audits are as well. https://www.gpo.gov/fdsys/pkg/USCOURTS-gamd-3_12-cv-00081/pdf/USCOURTS-gamd-3_12-cv-00081-1.pdf

    ReplyDelete
    Replies
    1. "Super Certified Forensic Loan Auditor Super Heroes: Check out the Mortgage Loan Agreement Lien Release which we received this morning from the Bristol County Registry of Deeds, Taunton, MA, all because of your great cutting edge technology forensic work. Check out these documents including the Taunton Deeds pdf." A very Appreciative & LOYAL CUSTOMER:
      Ron Adams

      http://www.certifiedforensicloanauditors.com/index.html

      Delete
    2. Mr. Barley: The Court Case at the link that YOU posted has absolutely NOTHING to do with this Certified Forensic Loan Auditors, LLC or CFLA. You are likely just a competitor trying to disparage the great professional reputation of CFLA. The Case you cite is referencing a report prepared by Deborah Saunders who is not affiliated or employed by CFLA. She was merely one of the thousands of professionals who have attended our Auditor Training Classes and Seminars... CFLA is credited with Being teh Founders and Creators of the Forensic Loan Audit and Mortgage Securitization Audit back in 2007. CFLA has been audited and investigated by every major State and Federal Agency and passed with Flying Colors. CFLA is the Leader in Providing Professional AuditinG Services in the United States and abroad... Call our sales office for more information at 888-758-2352. Check out CFLA's A+ rating at the Better Business Bureau - https://www.bbb.org/losangelessiliconvalley/business-reviews/forensic-loan-audit/certified-forensic-loan-auditors-in-los-angeles-ca-100090278

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    3. Nobody has ever found a case where someone using a securitization audit has won a case. Matter of fact, most knowledgeable attorneys know they are a scam.

      Most homeowners don’t have access to legal search engines like most attorneys do, but they can go to Google Scholar in the case cite section and put in the name of CFLA, and about a couple of dozen cases pop up—all of them the homeowner lost their home. It strains credulity that you claim the auditor you taught using your ridiculous arguments the court found to be nonsense. You’re a real piece of work!

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    4. Truly, tens of thousands of homeowners and homeowners attorneys have successfully utilized these audit reports to leverage banks for settlements and new loans or modifications.. in a study conduct by CFLA executive staff in 2017 and presented to the federal trade commission, we sampled persons in foreclosure in a random sample from 2014 of persons in foreclosure, and tested the sample again CFLA clients during the same period that we’re also in foreclosure but had purchchased a audit report from CFLA. These two groups were examined 3 years later to determine what % of them were still on title to the same property as before.. in the sample of more than 100 randomly selected person not having purchased a audit less than 18% of these persons were still on title 3 years later. Conversely, those 100 who had purchased an audit from CFLA, all variables being the same, chosen at random , had a 39% rate of still being on title three years later... I am happy to provide you results of this study conducted by Michael Carrigan in October 2017. Results were clear that those who had purchased the audit were more than twice as Lille as those who did not to be still in their home three years after a foreclosure action in the test sample...

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    5. Barley: stop talking so ignorantly. Look at the testimonials of actual persons on this page before you make such foolish malicious and defamatory statements like “no one has ever won a case using a securitizatiob audit”. I suggest you go hide back under a rock somewhere and delete all your defamatory posts on all your blogs (and I now have several)... CFLA sues babks that’s what we do, and I am hereby advising you to delete all your defamatory comments before ffriday May 15th or you will be found, served, enjoined, than garnished... wthanks for your prompt attention to this matter

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    6. I agree with Barley, all of the testimonials are fake. Also, you have a history of threatening people who prove your company is a scam: http://mandelman.ml-implode.com/2014/10/homeowner-alert-mortgage-investors-fraud-recoverys-50-2-40-program-cflas-quiet-title-audits-and-experts/

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    7. Securitization audits are crimes: https://mattweidnerlaw.com/mortgage-securitization-audits-they-are-a-crime/

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    8. From another CFLA loss:

      “Judge Madeline Cox Arleo has previously cautioned that she has "concern over the dubious nature of such reports [prepared by Certified Forensic Loan Auditors, LLC." Hicks v. The Bank of New York, et al., Civil Action No. 15-1620, Letter Order, D.E. 22 (Feb. 22, 2016). The FTC has recently warned consumers to be wary of "forensic mortgage loan audits." Federal Trade Commission, Forensic Loan Audits, https://www.consumer.ftc.gov/articles/0130-forensic-loan-audits (last visited September 13, 2017) ("According to the Federal Trade Commission (FTC), the nation's consumer protection agency, the latest foreclosure rescue scam to exploit financially strapped homeowners pitches forensic mortgage loan audits.").

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  2. CFLA is a life saver !!! 05/10/2018 — "To begin, I bought your securitization audit after I had lost in state court in a foreclosure-10/27/14. Thinking there was no hope I found Certified Forensic and decided to try a securitization audit in order to have evidence of fraud in a filing with the Federal Court in New Jersey. I ended up in discovery in Federal Court. As you may remember part of discovery was a deposition taken by Chase of Michael Carrigan. I filed before Final Judgment in Federal Court on 04/10/15 with a securitization audit from Certified as evidence of fraud.To my surprise after a ruling for Chase in a summary judgement on 10/27/2014 -and going on four years later- on February 1, 2018 Chase unilaterally dismissed my state foreclosure case without any notice or discussions. I used most of the legal package from Certified. I did have people with some experience I could discuss the case with, and I had an expert witness which is also very helpful. William Paatalo is one of my expert witnesses. Bill knows the game well and he has testified around the country against the banks. It could only have happened because of the discovery in Federal Court which provided me with more evidence of fraud. This evidence could only have been gotten from discovery. And therefore the securitization audit was critical to my success in getting into discovery in Federal Court. Although I must caution there were others with the securitization audits that were not so successful so a securitization audit does not guarantee anything but in my opinion it puts you in the race. You need good legal advice and lots of reading and research with a lot of luck. I do think the odds are improving today as people are educating themselves. There are success stories. Its a long road home but the odds are getting better in my opinion. This may qualify me as a qualified success story for your firm since the state court dismissal could only have happened if I had not filed in Federal Court which brought me to discovery. Discovery gave me the evidence of fraud that I turned around and used in a Motion to Dismiss for Certification fraud in state court. The battle rages on. And there are more defeats than wins but there is hope. Many people have no idea that even after all these years there are options open to them. Chase tried to claim statue of limitation but there is no statue of limitation if you find fraud."
    James Farah

    http://www.certifiedforensicloanauditors.com/index.html

    ReplyDelete
  3. "This is a testimonial to Jim and the CFLA team. CFLA and the audit once again proved to be worth far more than it's weight in gold. I was able to negotiate a (an impossible) short sale with SPS and settle with three subordinate lenders (only one of which was TARP). The deal recently closed and I remain undefeated. Much appreciation and thanks to to Jim Salvagio, Melanie Paree and the CFLA team. Further thanks for awesome support, customer service and always going above and beyond the call of duty!" Sincerely and Very Best Regards:
    Jeff Burch

    "My wife and I would like to thank you for the wonderful work you've done submitting the loan modification to ocwen on our behalf, we have been wrestling with them for so long and we were getting nowhere and in fear of losing our home. After you suggested I called them to find out what the status of our loan modification was, they told us over the phone that we were eligible for a Sam [Shared Appreciation Modification) they reduced our principle from $736,579.75 to $513,950.00 our interest rate went from 4.25% to 2.00% our monthly mortgage payment went from $3467.83 interest only to $2354.82 principle interest taxes and insurance included, our interest only loan was changed to a 22‐year conventional fixed rate loan at 2.00%. This is good news, we could not be more grateful for the work you put into the modification. In addition; the difference between the original principle including penalties and interest and the new principal balance of $513,950 was $476,732.99 which they agreed to waive off 1/3 of that amount each year for three years as long as I remain current on my payments, at the end of that time the debt would not exist. They also told me that notification had gone out to their attorneys to stop the foreclosure proceedings, which was pending a sale date as you know. My wife and l are still in shock we wanted to see everything in writing and they told me over the phone tracking indicated that the package had been delivered to my address and it was already in the mailbox. I'm sending you copies of everything for you to look over. This was a great deal you got us, Steven, there's more I can't put in writing. Well done. This is a big step for us to be able to stay in our home."
    Anthony and Karen Boone

    "I just wanted to thank you for the great job on the affidavit that you wrote with our Bloomberg Audit. We had a sale date today 10-22-13 and yesterday our attorney presented a complaint with the affidavit referenced to the judge to do an injunction and he read it for only a few minutes and stopped the sale. We are proceeding to a hearing at a future date. We are in Wyoming and I don't believe they have ever seen anything like this against the banks. We have friends who now want a securitization audit and I am going to talk them into a Bloomberg audit. Thank you again."
    Susan Cacho

    "Hello, you did a securitization audit for me in 2014. Guess what? Chase agreed to settle for 11k, which was only PART of the property tax owed. The bankruptcy court approved the settlement agreement so It is a done deal. Once I submitted your audit, in my amended objection to their proof of claim, they started talking about a settlement. Anyway, I am interested in taking your three day course at a future date. Thanks again."
    David Schaar

    "Thank you for the support over the years. We just beat the bank in court to save house and prevent eviction. Their case was denied."
    Jeff Castillo

    "Super Certified Forensic Loan Auditor Super Heroes: Check out the Mortgage Loan Agreement Lien Release which we received this morning from the Bristol County Registry of Deeds, Taunton, MA, all because of your great cutting edge technology forensic work. Check out these documents including the Taunton Deeds pdf." A very Appreciative & LOYAL CUSTOMER:
    Ron Adams

    ReplyDelete