One of the most important decisions for Borrowers Rights in the history of Hawaii has been made with this decision. Honorable Judge J. Michael Seabright of the Hawaii United States District Court, today GRANTED the homeowners’ Motion to Dismiss the case filed against them in federal district court by Plaintiff Deutsche Bank National Trust Company, as Trustee Morgan Stanley ABS Capital I Inc. Trust 2007-NC1 Mortgage Pass-Through Certificates, Series 2007-NC1.
The Williamses (Leigafoalii Tafue Williams and Papu Christopher Williams), who were represented by Honolulu attorney, James J. Bickerton (Jim), of Bickerton Lee Dang & Sullivan, filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), in which they argue, among other things, that Plaintiff has no standing to foreclose because it has not established that it was validly assigned the Mortgage and Note.
The Court noted that: “Because the court finds that Plaintiff has failed to establish its standing to bring this action, the court need not reach the Williamses’ other arguments for dismissal.”
Honorable Judge J. Michael Seabright gets it! And his ORDER was detailed. In the Discussion, Judge Seabright notes an argument that homeowners have being trying to persuade the courts (especially at the lower state levels) to grasp: STANDING and JURISDICTION.
“Standing is a requirement grounded in Article III of the United States Constitution, and a defect in standing cannot be waived by the parties. Chapman v. Pier 1 Imports (US.) Inc., 631 F.3d 939,954 (9th Cir. 2011). A litigant must have both constitutional standing and prudential standing for a federal court to exercise jurisdiction over the case. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004). Constitutional standing requires the plaintiff to “show that the conduct of which he complains has caused him to suffer an ‘injury in fact’ that a favorable judgment will redress.” Id. at 12. In comparison, “prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights.” Id. (citation and quotation signals omitted); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009).”
Let’s continue – but we’ll get back to that injury issue later in the post.
The WILLIAMSES’ ORDER continues: “The Williamses factually attack Plaintiff’s prudential standing to foreclose, arguing that there is no evidence establishing that Plaintiff was validly assigned the Mortgage and Note on the subject property. The issue of whether Plaintiff was validly assigned the Mortgage and Note is inextricably intertwined with the merits of the Plaintiffs claims seeking to foreclose…”
Of course, this was a New Century Mortgage (Home123) and the Plaintiffs were taking part in a fabricated assignment in 2009 to a 2007 Trust… (that boat had sailed 2 years before because theTrust had long since closed) – but even more compelling in the Motion to Dismiss-Memorandum was the Williamses assertion that New Century aka Home123 was in a liquidating bankruptcy as of August 1, 2008 and they had nothing to assign in January 2009.
Deutsche argued that the Williamses were not parties or beneficiaries to the assignment such that they cannot challenge it… [we’ve heard that before, yeah?]. However, the Judge Seabright clarifies a valid point:
“Plaintiffs argument confuses a borrower’s, as opposed to a lender’s, standing to raise affirmative claims. In Williams v. Rickard, 2011 WL 2116995, at *5 (D. Haw. May 25, 2011), — which involved the same parties in this action and in which Lei Williams asserted affirmative claims against Deutsche Bank — Chief Judge Susan Oki Mollway explained the difference between the two:
“…Standing” is a plaintiff’s requirement, and … Defendants must establish “standing” to defend themselves.””
Judge Seabright continues: “Deutsche Bank asserts affirmative claims against the Williamses seeking to enforce the Mortgage and Note, and therefore must establish its legal right (i.e., standing) to do so. See, e.g., IndyMac Bank v. Miguel, 117 Haw. 506, 513, 184 P.3d 821, 828 (Haw. App. 2008) (explaining that for standing, a mortgagee must have “a sufficient interest in the Mortgage to have suffered an injury from [the mortgagor’s] default”).”
Attorney Bickerton faced off in court and explained to the Judge in oral argument that the banks didn’t just miss the date to file their assignments or needed to tidy up paperwork, this was a ‘Business model using the loans for overnight lending.’ Bickerton told the Court that if this wasn’t dismissed, his first line of discovery would be geared to uncover the outside financial advantages being derived from the use of the Williamses’ loan.
Understanding the premeditated intentions of these banks, how they pledge, collaterize, swap, sell, lease,and trade these loans that are SUPPOSED to have been in a static trust will open the eyes of lawmakers to the real moral hazard – the fraud upon the homeowners, the courts and the state.
Jim Bickerton profoundly says that, “every foreclosure in the state is a victim of this shadow banking scam.”
James J. Bickerton
Bickerton Lee Dang & Sullivan
Fort St Tower
745 Fort St Ste 801
Honolulu, HI 96813
“Security trusts will no longer be able to hide behind the hocus pocus of the pooling and servicing agreements. The ramifications of this decision are extraordinary,” praises Gary Dubin.
INJURY – Remember that issue from above?
Let’s discuss the trusts. We can see by the assignments that they were not made timely and NY trust laws call them VOID. The REMIC has failed. But maybe the investors ARE getting paid with the behind the scenes shadow banking scheme.
And let’s suppose we can see the trading in the trust is active, numerous investors have already been paid off – where is the “injury”….hmmm?
We’re connecting the dots, people with above average intelligence are realizing, just like Judge Seabright, that there are huge schemes behind the scenes of an everyday mortgage that the borrower never intended to participate in… and eventually we’ll know whether the application for a mortgage started the securitization process before the borrower signed the note making them securities with no disclosure, how many insurance policies were attached to the loans and when (we never agreed to be over insured which would give someone the incentive to “off” us)… it’s coming soon – to a court room near you…
…and the Securitization curtain will be lifting for the big show.
Details by DeadlyClear
Honorable Judge J. Michael Seabright – Thank you. Mahalo!
This is why he gets the “Gets It” award:
An assistant U.S. attorney who prosecuted several high-profile white-collar criminal cases here is on his way to becoming Hawaii’s fourth full-time federal judge. Michael Seabright: As an assistant U.S. attorney, he put three isle politicians behind bars.
The U.S. Senate voted 98-0 yesterday to confirm J. Michael Seabright as a U.S. district judge for the District of Hawaii. “I’m very honored to have received that vote,” said Seabright, 46, an assistant U.S. attorney since 1990 and head of the white-collar crime section since 2002.
Image of the Honorable John Michael Seabright from http://www.grainnet.com/articles/usda_cited_by_federal_judge_for_permitting_violations_in_hawaii-36404.html
Whether or not you are represented by an attorney understanding the legal system is an asset. The more you learn, the less likely you are to be taken advantage of or scammed. Knowledge is power!
This is one of the clearest, most concisely argued and decided cases I have read, and I have read hundreds, if not a thousand or more. With cases like this, it will be easier for the American people and elected officials to realize that this a fraud of such proportion as to have no precedent in world history. The conduct of the banks, nonbanks,and all involved has trampled the Constitution and decimated individuals, families, communities, and revenue-starved county governments due to these heinous crimes.
Great job Judge Seabright.
Thank you so much for providing information on this case! I am in foreclosure and I spend hours on Internet to seach for data like this! Extremely helpful!
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I AGREE, KUDOS TO JUDGE SEABRIGHT! Straight up and easy to understand! Everyone should read this and share, and put judge Seabright on the honor list, with judge Schack and judge Raykoff and judge Boyko! And I am missing one other that deserves to be on this honorable list..
Great Work …. It’s a curious thing that Courts Across The Land do NOT Automatically Require a Compulsory Disclosure of the Chain Of itle to the Notes, Mortgages or Rights to Collect at ALL Nondisclosure Sales …. Maybe Legislation Is Needed To Force Just This Issue !!! Judson Witham (NVC) National Victims Coalition
It should be Compulsory …. Hands Doewn That a Full Abstract of ALL Assignments and Compulsory Discovery IN ALL Cases to Comply with this Order …. Legislation is Needed
Seriously, it is an IQ issue. Too understand the depth of the fraud and the shadow banking scheme it takes a keen mind and relatively high IQ, street smarts and an interest in understanding criminal behavior. Many, not all, lower court judges were just attorneys looking for a paycheck and a pension plan and had no interest in running a business. They cannot project what they cannot perceive. And let’s face it, the clerks and staff do all the work. So, if the clerk gets it he then has to have the ability to explain it to the judge…without sounding like a conspiracy theorist. And then, after they “get it” they have to absorb the shock that their pension funds may be gone.
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I’m a bit confused. I thought HI was a non judicial state so how did this case originate where the bank is the plaintiff suing her in court? So as a defendant she raised affirmative defenses including breach of PSA right? And court decided they had not established standing. Seems this can be done in any judicial state but I am not sure how this happened here in a non judicial state.
Last year the Hawaii legislature enacted Act 48 wherein banks would have to go to mediation before NJF so they all thumbed their nose at the legislature and started overwhelming the courts. This particular case started out with the borrower filing suit in USDC against the lender… The judge said the Plaintiff could not challenge the assignment only the Defendants could raise the defense. The lender thought they had the USDC snowed since they were having such a fine time with these decisions that instead of filing in First Circuit state court where that judge is awesome and they were getting creamed, they filed in USDC and drew Judge Seabright… And he gets it!
The courts are coming around – it just takes a will to understand this, higher than average IQ, some street smarts and the ability to understand and comprehend the criminal mind. Some may never get it – and there are only a couple of reasons for that.
Maybe I am dense…that order listed the bank as Plaintiff. Not sure what situation has the bank as plaintiff in HI. She sued them, ok so she is plaintiff, How was this turned around?
In discovery in my case, the plaintiff provided the closing instructions (not just the closing package given to the borrower at closing) and one document in the package might prove that the securitization process had started prior to closing. The amount allowed by an undisclosed third party for the loan was “up to” an amount that was $40K MORE than the loan amount. I knew nothing of the party who provided the document behind the scenes, and I knew nothing of this possible pre-selling until I saw this document in discovery. I am not quite sure of the best way to present this to the judge, as in my state, a mortgage is an exception to most rules or defenses for other types of secured debt collection.
If anyone can add anything to help understand this document, I would appreciate the help.
All homeowner’s should demand the full closing package, including the closing INSTRUCTIONS which are sent to the closing agent. I found other documents that are interesting, but I am not quite sure how they fall in place with the fraud either.
I’m in good tears for the responsiblity of courageous people & trying to make it right…thanks for your courage… let the new life shine for brave people that you are & all the people needing trusting souls to believe in….
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I travel the country teaching Attorneys, Investors, Homeowners and other folks about quiet title. I am certified by a number of Bar Assns in various states. The mission is really two-fold. 1.) The validity of the lien and 2.) Who is damaged? Great job by a Federal Judge that doesn’t have to worry about the guys at the Country Club re-electing him
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In regard (U.S. Bankruptcy Court, Eastern District of New York.) On February 10, 2011, the U.S. Bankruptcy Court for the Eastern District of New York considered a motion for relief from the bankruptcy stay brought by U.S. Bank as the trustee of a securitization trust. U.S. Bank claimed the right to foreclose on the debtor’s mortgage in part because of purported assignment of the mortgage from MERS. The court found itself constrained by the Rooker-Feldman doctrine to give effect to a prior state-court judgment of foreclosure, but went on to consider several arguments MERS advanced about its legal status and authority, noting that it had held off on deciding dozens of additional cases until those matters were clarified. The court found that MERS had no power as an agent to assign the mortgage under its rules, its membership agreement, or the terms of the mortgage itself. The court also found that MERS had no power as the mortgagee of record to assign the mortgage: “MERS’s position that that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.” The court observed, “MERS and its partners made the decision to create and operate under a business model that was designed large part to avoid the requirements of the traditional mortgage recording process. The Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.” .- WIKI
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Reblogged this on Timothymccandless's Weblog.
Its about damned time, Kudos to Hawaii!!!
Reblogged this on Manifest Injustice and commented:
Hawaii kicked some ass!
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Happy to hear that you all are fighting the courts and the banks to help the homeowners
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I am on the ground here in Hawaii and local people should know that they are not alone in the fight to protect their homes from unlawful foreclosure.
THANK YOU YOU JUST SAVE MY FORECLOSURE CASE I JUST WITH THAT WE HAVE MORE REAL JUDGES LIKE YOU THANK YOU.
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Are there any cases here in Hawaii in which the Lender did a Release of Mortgage? BofA did this for my mortgage over 10 years ago and now the Judge is allowing them to correct this as it was an Erroneous Error… 10 years after?! If there were cases such as mine, what was the outcome? Via a QWR, BofA said that Fannie Mae was the Investor/Owner of my Note… But, last month they told me otherwise, that my Note was Liquidated. Is that good news or bad? Mahalo!
What is the complete site for the Williams case decided by Seabright?
See above in blue: “Williamses Order”