Why Foreclosing Securitized Trust Plaintiffs Cannot Prove Entitlement To Foreclose
(December 12, 2017, Hawaii) The Foreclosure Hour TODAY at 3 pm (HST) / (5 pm EST) will discuss one of Hawaii’s latest FORECLOSURE APPEAL cases, HSBC Bank USA v. Yamashita, where after a pro-bank decision in the lower circuit court was overturned on appeal.
The Hawaii ICA noted, “[T]he [Hawaii] supreme court then expressed that “[a] foreclosing plaintiff’s burden to prove entitlement to enforce the note overlaps with the requirements of standing in foreclosure actions as ‘standing is concerned with whether the parties have the right to bring suit.’”
For more than half a century this Nation’s courts have robotically with few exceptions favored lenders over homeowners in foreclosure litigation. This has been especially true since the Mortgage Crisis of 2008.
Yet gradually judicial confidence in the veracity of pretender lenders’ foreclosing paperwork has been steadily diminishing, first as a result of robo-signing scandals initially exposed in Florida, and second, more recently due to observed, previously overlooked, overall deficiencies in loan servicers’ summary judgment declarations.
As more and more state judiciaries, now in the majority, are adopting the standing-at-inception rule discussed on prior shows, requiring proof of debt ownership when a foreclosure complaint is initially filed, foreclosure summary judgments are being reversed by state appellate courts in increasing numbers.
Every homeowner facing foreclosure needs to urgently know of these new developments and where necessary to bring these new precedents to the attention of their local judiciaries.
In Hawaii, for instance, my law firm has secured nine appellate reversals so far this year (over sixty in the past twenty years).
One such reversal occurred in the Yamashita Case just the other day, which Hawai’i Intermediate Court of Appeals decision, the lead in for this Sunday’s show, provides one of the best summaries yet of how to identify inherent deficiencies in loan servicer moving declarations.
Yamashita also provides us with a convenient fact pattern for further elaboration on our Sunday show regarding the entire range of such deficiencies found in virtually every securitized trust foreclosure case in addition to those discussed in Yamashita.
And beyond mere appellate reversals based on robo-signing and now broader deficiencies found in loan servicer declarations, a third trend is inevitably starting to emerge, holding those submitting such false paperwork in court criminally liable. What took so long?
Listen to this Sunday’s show and learn for example also about this newest trend, sure to accelerate, how two Miami-Dade Circuit Court Judges — Judges Beatrice Butchko and Pedro Echarte Jr. — are seeking to hold foreclosure attorneys in criminal contempt for withholding critical information pertaining to their loan servicer’s actual loan “boarding” process explaining how the records of previous loan servicers are actually added to successor loan servicer’s records contrary to how the boarding process is falsely portrayed in court.
Exposing the evidentiary inadequacy of the so-called loan boarding process could defeat every securitized trust foreclosure in the United States, it is that central to a foreclosing securitized trust plaintiff’s burden of proof.
Gary Victor Dubin
Dubin Law Offices
Suite 3100, Harbor Court
55 Merchant Street
Honolulu, Hawaii 96813
Office: (808) 537-2300
Licensed in California and Hawaii
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