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Guest Post: Houston, We've Got A Problem - Bevilacqua

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Wed, 10/19/2011 - 23:30 | 1791422 Terminus C
Terminus C's picture

Horry fuck Batman... shit storm ahead!

Wed, 10/19/2011 - 23:46 | 1791454 DoChenRollingBearing
DoChenRollingBearing's picture

YES, Terminus, a VERY UGLY problem.

Good catch Tyler!

Thu, 10/20/2011 - 00:29 | 1791552 Harlequin001
Harlequin001's picture

Well DoChen, I now rent, and my money's in gold and silver in Switzerland so,

'couldn't care less' really...

Thu, 10/20/2011 - 00:58 | 1791602 Philippines
Philippines's picture

Seems you couldn't care less about your gold and silver... unless you're living close to the Swiss bank to get it at anytime ;)

Thu, 10/20/2011 - 01:13 | 1791629 flacon
flacon's picture

It's like I said on another thread. It's a matter of OWNERSHIP...

 

You tell your son to go to the store to buy a bag of wheat. But you don't have money to pay for it, but you give him a note that says: "Dear store owner, I promise to pay you for this bag of wheat when I get the money". Your son goes to the store, and presents the note to the store owner. He gives the bag of wheat to your son. Half way home, your son puts down the bag of wheat to rest a while. Then he has a thought: "WHO OWNS THIS BAG OF WHEAT?".  
 
 
 
1. Who ever is in posession owns it 
 
2. Who ever has paid for it owns it. (does a promisary note connote "paid in full"?)
 
3. Who ever has produced it and has NOT received just compensation owns it.  
 
 
 
There are three owners of the bag of wheat, but only one mouth will eat it.

Thu, 10/20/2011 - 01:57 | 1791686 Michael
Michael's picture

What a fucking mess. This bankster fraud has got to be stopped. How much longer are we going to have to live with these improperly functioning markets?

Looking forward to the second tsunami wave of foreclosures in prime and jumbo.

Prime-X bitches!

Thu, 10/20/2011 - 04:17 | 1791754 Michael
Michael's picture

Everyone is going to vote for Ron Paul just to piss off the establishment!

Thu, 10/20/2011 - 05:24 | 1791778 jeff montanye
jeff montanye's picture

there is nothing more powerful than an idea whose time has come.

Thu, 10/20/2011 - 05:42 | 1791784 clymer
clymer's picture

Aaahhhh. The banking establishment has not yet imagined what the future might men for them..

http://www.youtube.com/watch?feature=player_embedded&v=gIyOpN6g-zA#!

 

Thu, 10/20/2011 - 09:40 | 1792518 Philippines
Philippines's picture

Agreed. If/when TSHTF, if you don't have your gold/silver/food/whatever in possession, you're too late. Especially if your stuff is overseas lol

Thu, 10/20/2011 - 06:47 | 1791820 MarkS
MarkS's picture

Maybe, maybe not.  MA SJC is NOT all that highly respected.  On their rulings a landlord usually has to go for a year before they can have a non-paying tenant removed from their property.  They are a bunch of clowns that continuously make politically active rulings.

While the foreclosure sales and robosignings were atrocious, the vast majority were likely foreclosed on for cause.

 

Thu, 10/20/2011 - 08:04 | 1792025 WonderDawg
WonderDawg's picture

While the foreclosure sales and robosignings were atrocious, the vast majority were likely foreclosed on for cause.

Cause isn't the issue. The issue is, does the entity enforcing the foreclosure actually have "interest", i.e. the right to foreclose. In many cases, evidently, no they don't, because the mortgage has been resold and resold again, so the actual owner of the mortgage has been clouded, and conveyence of title has never been properly recorded.

Thu, 10/20/2011 - 08:17 | 1792098 Crisismode
Crisismode's picture

It matters not whether a property was foreclosed "for cause."

 

If the title was not clear, throughout the entire history of the transaction, the conveyance is fraudulent.

 

Period.

Thu, 10/20/2011 - 09:51 | 1792582 MachoMan
MachoMan's picture

A fraudulent conveyance is something altogether different...  this would be a void conveyance...  you're using legal terms of art...

Wed, 10/19/2011 - 23:31 | 1791427 Cliff Claven Cheers
Cliff Claven Cheers's picture

Fuck it.

Thu, 10/20/2011 - 01:01 | 1791608 unununium
unununium's picture

But, but, but ... Calculated Risk is a blog, and it tells me there is no systemic problem with foreclosures!

Wed, 10/19/2011 - 23:39 | 1791443 b-rad-is-rad
b-rad-is-rad's picture

 

 

Tyler,

 

You are being misleading. This does set precedent, for "Massachusetts."

You implication that other states have and will follow their lead is, well misleading.

Most states will not follow this precedent. Many states have already ruled this out.

 

You also ignore the fact the Mass legislature can overule this legislation, and I will not be surprised if they do so very soon.

 

Normally I agree with what you say, but you are off base with your assertion here. Way off.

 

Wed, 10/19/2011 - 23:50 | 1791463 JLee2027
JLee2027's picture

Most states will not follow this precedent. Many states have already ruled this out.

I can't agree with that.  The foreclosures must first be called illegal and then the sales can be overturned. Mass is way ahead of most states.

 

You also ignore the fact the Mass legislature can overule this legislation, and I will not be surprised if they do so very soon.

Legalize what the court declared as fraud you mean?  I don't think so - do you want riots in the streets?

Thu, 10/20/2011 - 00:31 | 1791557 b-rad-is-rad
b-rad-is-rad's picture

By who?

The people who took out loans they couldn't afford and didn't make their payments...(who the banks foreclosed on but fucked up the paperwork.)

 

Or the people who bought their dream house for their family (with the money they saved and busted their asses for) who are now being kicked out of their homes?

 

Which people are going to riot over this?

 

There is tons of shit to be pissed off at the banks about. This is not one of them. Almost all of the defective titles were due to minor paperwork mistakes, and everyone foreclosed upon (with a few VERY rare exceptions) were not paying their mortgages and living in their houses payment free for months/years before being foreclosed on.

Thu, 10/20/2011 - 01:02 | 1791596 FinalCollapse
FinalCollapse's picture

Lex retro non agit.

They can make new laws, but the new laws cannot go backwards. Contract is a contract. 

There a two title theory systems in this country. The Mass precedent will apply to significant part of USA (New York, Illinois, Maryland, Florida, etc.). SHTF now.

Thu, 10/20/2011 - 01:05 | 1791618 b-rad-is-rad
b-rad-is-rad's picture

Wrong.

Thu, 10/20/2011 - 10:02 | 1792635 MachoMan
MachoMan's picture

I'm not sure who else on this board has won an appeal from their highest state court this year representing the buyer at a foreclosure sale, but I have...  I cannot see any difference whatsoever in this Massachussetts decision and well established law in my state...  If a judgment is void, then any transactions stemming therefrom are likewise void.  A void transaction cannot be cured.

Generally speaking, there is an important decision to make between "void" and merely "voidable" judgments.  In the event service was not properly made upon an adverse party, then the judgment would be "void" (due process failure).  However, if that same person had notice of the proceeding, then the judgment might be merely "voidable."  Generally speaking, in the event a judgment is anything other than void ab initio or fitting into particular categories, then the party seeking to set aside a judgment must show a "meritorious defense."  In this case, that would be that the party foreclosing did not have standing.  [this requirement is implemented for the policy reason of judicial expediency given there is no reason to over turn a previous judgment so that a party may lose the lawsuit twice].

However, there is also a very important exception to the requirement that a meritorious defense be shown...  fraud upon the court.  Where in order to foreclose a party has to swear and affirm to the court that it has standing to foreclose, but yet it has no such standing, then you've got a pickle.  Where fraud upon the court can be shown, generally speaking, the judgment is void and no meritorious defense need be shown.

Again, I see nothing in the bullet points of this article that lead me to believe this case sets any unique precedent...  my guess is that most all states have made similar decisions over the last few decades...   

Thu, 12/15/2011 - 19:21 | 1985402 jcaz
jcaz's picture

"b-rad-

When you get to your 3rd year of law school, you'll start getting a clue.....

Thu, 12/15/2011 - 19:43 | 1985486 MachoMan
MachoMan's picture

He would be the first law student to get a clue while in school...  maybe after about 7-8ish years of practice he'll finally get it...  like most lawyers...  although some never do.  Too bad he isn't going to get a job after graduation...

Thu, 10/20/2011 - 01:00 | 1791606 bruinjoe93
bruinjoe93's picture

It doesn't change the fact (according to Massachusetts) that the banks broke the law when they failed to transfer the title correctly.

Thu, 10/20/2011 - 02:27 | 1791713 JLee2027
JLee2027's picture

b-rad-is-rad

This is not a "paperwork" issue.  It is massive fraud, and the MASS SJC won't play along.

Thu, 10/20/2011 - 08:06 | 1792040 Calmyourself
Calmyourself's picture

While I agree it is a fraud issue.  The banks once again took shortcuts to save money and circumvent state law, they are above it after all..  This will be papered over Brad is right, here is no one outside of these digital walls who will do anything.  The anesthesia machine reigns in this country..

Thu, 10/20/2011 - 08:23 | 1792129 Crisismode
Crisismode's picture

Don't forget that there are thousands of lawyers who stand to make massive fees litigating the banks.

 

They will not be turned aside from their rightful rewards.

Thu, 10/20/2011 - 10:19 | 1792687 MachoMan
MachoMan's picture

This isn't a fraud issue....  fraud on the securities side maybe...  but, on this side, who is the fraud against exactly?  How does a down stream mortgagee defraud a homeowner when there is no privity between the two?  Are you alleging a civil conspiracy between creditors to shoot themselves in the feet?  [this fact alone is probably enough to get the charge dismissed via 12b6].

Remember, the fraud in order to render a previous judgment void must be ON THE COURT, not on the person. 

The court does not prosecute a cause of action of "fraud"...  it has no capacity to do so...  it has inherent contempt powers...  but for any fruitful use of the word fraud, this could only be a cause of action for the homeowner...  and none exists.

I know I've harped on it in the past, but people on this site have to learn the difference between a cause of action and a defense...  a cause of action is to be used as a sword, in an offensive measure against your opponent...  a defense is something you assert as a shield to prohibit or mitigate the effects of the cause of action of another.  There is no cause of action for a homeowner for "lack of standing"...  this is a defense to a foreclosure action...  it's not a doorway, necessarily, to a free house or an unencumbered house, it's simply a stopgap measure to defend against a foreclosure action.

Wed, 10/19/2011 - 23:55 | 1791471 Miles Kendig
Miles Kendig's picture

Submitted by Greg Lemelson of Amvona

You also ignore the fact the Mass legislature can overule this legislation...

THIS legislation?  It's a court ruling.  Strike that, THE SUPREME COURT ruling not only on property rights in the Commonwealth, but everything else at state level.

Thu, 10/20/2011 - 00:08 | 1791502 b-rad-is-rad
b-rad-is-rad's picture

 

 

with legislation*

 

sorry for the confusion.

Thu, 10/20/2011 - 00:13 | 1791512 b-rad-is-rad
b-rad-is-rad's picture

love the down vote for correcting my typo. lol. sorry, long day at law school, and I've had some wine.

Thu, 10/20/2011 - 00:16 | 1791517 Cliff Claven Cheers
Cliff Claven Cheers's picture

Well that fuckin explains it all - a fucking law student.

Thu, 10/20/2011 - 00:17 | 1791522 Cliff Claven Cheers
Cliff Claven Cheers's picture

A Constitutional Lawyer, a Communist and a Muslim walk into a bar.  The bar tender says "What can I get you Mr. President?"

Thu, 10/20/2011 - 00:26 | 1791544 delacroix
delacroix's picture

.

Thu, 10/20/2011 - 00:20 | 1791530 b-rad-is-rad
b-rad-is-rad's picture

Eh. You got me there. If it makes you feel any better, getting the MBA at the same time, I don't plan on practicing. Just trying to get in on the student loan bubble before, well you know, Pop.

Thu, 10/20/2011 - 00:25 | 1791543 Cliff Claven Cheers
Cliff Claven Cheers's picture

Oh your going to be one of those extra devious fuckers.  I may need to hire you in the future.

Thu, 10/20/2011 - 10:24 | 1792745 MachoMan
MachoMan's picture

As someone who has both...  I would say you are crazy at this juncture to attempt it on credit.  I would not have even started the path so many years ago if I was going to have to borrow to do so...  and I was oblivious to many of the ills of the maco economy.  Now it is suicide.  Hope you have your job lined up already.  Also hope your undergrad degree is in something more useful than basket weaving/philosophy...  you might need it.

PS, the combo J.D./MBA is not a real MBA...  go get a real, stand alone MBA not that truncated bullshit...  not that I fault you for diving at the cheapest paper.

Thu, 10/20/2011 - 00:34 | 1791560 Miles Kendig
Miles Kendig's picture

Make sure you get the whole big three and secure the CFA to go with...

hehehe

Thu, 10/20/2011 - 01:25 | 1791650 jdrose1985
jdrose1985's picture

You don't plan on practicing law?

I thought all law abiding citizens practiced law?

 

Thu, 10/20/2011 - 07:00 | 1791834 j0nx
j0nx's picture

Haha you think that this foreclosure ruling will go nowhere yet you seem to think that you won't have to pay your student loans back because the bubble will pop? ROFL. Good luck with that. Sounds to me like you need to study harder in law school.

Thu, 10/20/2011 - 09:46 | 1792559 b-rad-is-rad
b-rad-is-rad's picture

I never said that dumbass. You need to practice your reading comprehension.

Thu, 12/15/2011 - 19:23 | 1985411 jcaz
jcaz's picture

LOL- sorry dude- no decent Law school allows you to "diversify" while you're attending their school-

Why not add Med school next quarter?

Poser.....

Wed, 10/19/2011 - 23:57 | 1791481 Careless Whisper
Careless Whisper's picture

None of the Tylers wrote this. It is a re-post from another blog. The article was written by a non-lawyer about legal issues. Pure trash. The Court ruled that you can't sell something that you don't own. What a surprise. What happens in Massachusetts, stays in Massachusetts. The writer claims that other states look to Massachusetts courts for guidance. Laughable!

Thu, 10/20/2011 - 00:05 | 1791499 mt paul
mt paul's picture

presedent 

Thu, 10/20/2011 - 00:19 | 1791528 Careless Whisper
Careless Whisper's picture

Un poco más de palabras y se puede componer una frase.

Thu, 10/20/2011 - 00:32 | 1791558 Miles Kendig
Miles Kendig's picture

Stir the pot CW.

good to see yaz

Wed, 10/19/2011 - 23:59 | 1791487 john39
john39's picture

True, each state will handle this mess under it's own laws. Decisions from other states might get looked at, but are not binding. These issues are incredibly complex from a legal standpoint. We are inuncharted waters. That alone hurts the real estate market.

Thu, 10/20/2011 - 00:35 | 1791565 wisefool
wisefool's picture

Mass. is judicial, many other states are not.

http://www.realtytrac.com/foreclosure-laws/foreclosure-laws-comparison.asp

Can you blame young people for not wanting to buy a home?

  • in any condition
  • at any price
  • at any tax credit "if you buy on thursdays in odd number months"
  • at any promise that property taxes will go down
  • at any promise that the school district is great
  • at any commute from the temp job they might have for  next 6 months
  • at any interest rate that helecopter ben sets
  • etc.

And most of these cases have institutions involved that no longer exist. And we have new, never lived in construction, on ultra pure titles, sitting empty in ghost towns.

And homeless I stood near a thousand homes. Hungry next to a thousand tables.

Thanks Sen. Dodd and Mr. Mozillo! It was a great Idea to put Dr. Krugman in charge of bartertown!

Thu, 10/20/2011 - 00:08 | 1791504 Cliff Claven Cheers
Cliff Claven Cheers's picture

b-rad quit being such a downer and the let the guy tell his story. 

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