Arizona Bankruptcy Lawyer discusses Bailey Case - Judge tells Bank of New York "bring the original file to Court"

By
Real Estate Attorney with The Law Offices of Steven C. Vondran, P.C. Attorney at Law

BAILEY (PRO SE) v. THE BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK – WOW!

THE LID HAS COME OFF IN AN ARIZONA BANKRUPTCY CASE (CHAPTER 11) – "PRODUCE THE NOTE IN BANKRUPTCY ADVERSARY PROCEEDING" AS WE HAVE BEEN SAYING ALL ALONG.  ITS TIME TO STOP ALL THE LIES.  NEIL GARFIELD DECLARATION INVOLVED.  ITS TIME TO RIP OFF THE MASK AND TELL THE TRUTH.  WHO THE REAL OWNER OF YOUR LOAN IS SHOULD NOT BE CONFIDENTIAL.

CITATION: ADVERSARY PROCEEDING 2:09-ap-01728

ANDREW BAILEY, Chapter 11, Debtor.

ANDREW BAILEY, Plaintiff,

v.

THE BANK OF NEW YORK MELLON, as trustee of the CWALT, Inc. Alternative Loan Trust 2007-HY4 Mortgage Pass-Through Certificates, Series 2007-HY4; BAC HOME LOANS SERVICING LP; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC; John Does 1-20 inclusive; and all persons claiming by, through or under such person, all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiff's title thereto, Defendants.

Case No. 09-bk-6979-RTBP, Adv. No. 09-ap-01728-SSC.

United States Bankruptcy Court, D. Arizona. (Hon. Judge Curley)

_____________________________________________________________________________________________________________________________________________

This could be a potentially huge court, once again brought on by "lender" who will literally try to do anything possible to GET YOUR HOUSE and RUSH YOU TO FORECLOSURE.  When I say anything, I mean anything.  This case highlights PRECISELY what we have been seeing in the foreclosure trenches as litigation counsel.

YOU CAN FIND THE BASIC FACTS OF THE CASE ON THIS WEBSITE: http://www.leagle.com/xmlResult.aspx?xmldoc=in%20bco%2020100730932.xml&docbase=cslwar3-2007-curr

As we have been saying all along, THESE SO CALLED LENDERS SHOULD BE REQUIRED TO PRODUCE THE ORIGINAL NOTE AND DEED OF TRUST TO PROVE THAT THEY IN FACT ARE THE REAL PARTY IN INTEREST, AND HAVE THE SECURED LIEN IN A BANKRUPTCY COURT.  In the case that follows, a Plaintiff (in pro se) knocks out a HUGE win on his Fourth Amended Complaint.  But in reviewing the case file, it appears to me the so called "lenders" or "creditors" or "investors" or whatever else you want to call them, were caught pulling what appear to be in my opinion, some shady dealings on the Court, or at least that is what the Plaintiff has accused them of.  Specifically, it appears the "lenders" (Plaintiff sued what I call "The Three Amigos - Bank of New York Mellon, BAC (Bank of America formerly Countrywide Home Loans) and our Mortgage Electronic Registration Systems ("MERS").  As usual, one attorney represented all three entities.

It appears this case was originally filed as a Chapter 7, then converted to a Chapter 11 case.  The Defendants tried to file a motion to lift the automatic stay.  The original motion was denied because the Court said the moving party (Bank of New York Melon - called "BONY") was not the real party in interest, basically because there was a break in the chain of transfers of the note.  BONY could not prove it had proper possession of the note and deed of trust.  The Court indicated that it appeared Countrywide Bank, FSB was the owner of the loan.

Not to be deterred, and pursuing what we often see as the "win at all costs" approach, the "lender" (BONY was the trustee of the CWALT securitized loan trust) filed a second motion for relief from the automatic stay.  This time a new assignment in blank of the note was produced, and the Deed of Trust had the MERS Min # whited out.  "This is the stuff you will typically see in a foreclosure defense case says Wrongful Foreclosure and Predatory Lending Attorney Steve Vondran."  We do not yet have a copy of the Judges Order, but we have it on information and belief that the Court is ordering that the original promissory note be produced in the Arizona Bankruptcy Court.

It seems to me that only when the judges get really upset at these types of shenanigans will they force the "lender" to prove up their chain of title establishing ownership of the loan.  The Plaintiff, acting in pro per, has characterized the defendants as trying to pull a fraud on the Court.

At this time, the Court has ordered the following according to a November 9, 2010 Minute Order:

MR. HIRSCH (COUNSEL FOR BONY) IS DIRECTED TO

GET THE ORIGINAL CUSTODIAL FILE FROM NEW YORK FOR THE COURT TO REVIEW. HE SHOULD ALSO GET AN AFFIDAVIT FROM

THE INDIVIDUAL GETTING THE FILE, THAT THERE HAS NOT BEEN ANY CHANGES SINCE 2006. IT IS ORDERED CONTINUING THIS

HEARING TO JANUARY 13, 2011 AT 10:00 A.M.

The Court at this time feels there is still not a valid cause of action to challenge the validity, extent, and priority of the alleged lien, but producing the Original file should make it easier for the judge to determine what is going on, and if there has been a fraud on the Court, this may blow the wheels right off the proposed foreclosure and motion to lift the automatic stay in Bankruptcy.

KEEP UP THE FIGHT PEOPLE, THE TRUTH IS SLOWLY EMERGING.  JUDGES ARE STARTING TO GET THIS MESS FIGURED OUT AND DEMAND SOME AUTHENTIC PROOF HERE.

One Final Note: This Case discussed how Plaintiff sent out a variety of letters to try to establish ownership of the loan: (1) Debt Validation Letter under 15 USC 1692; (2) Qualified Written request under RESPA (12 USC 2605), and (3) TILA demand to identify owner of the loan obligation or master loan servicer (15 USC 1601-1665) and more specifically 15 USC 1641(f).  A UCC presentment letter should also be sent and we discuss this on our UCC Foreclosure Defense website.  IF YOU ARE EVEN REMOTELY CONTEMPLATING BANKRUPTCY, YOU NEED TO THINK ABOUT SENDING THESE LETTERS OUT, OR HAVING A FORECLOSURE DEFENSE LAWYER SEND THESE OUT ON YOUR BEHALF.  YOUR FAILURE TO DO THIS UNTIL THE LAST MINUTE COULD GREATLY CRIPPLE YOUR RIGHTS.

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Anonymous
Brawn Clark
Thanks for such a knowledgeable post. All the points are very clearly defined. Whole work is appreciable.
Apr 24, 2014 06:09 PM #1
Anonymous
Steve Vondran
Thanks Brawn, I enjoy sharing what I know in the area of real estate law. Knowledge is power. Thanks for taking time to comment. Steve
Apr 25, 2014 03:51 AM #2
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