The Phillips-Tehiva reconsideration hearing took place on Tuesday, May 1st. May Day… Occupy Maui May Day.
Honorable Judge Eric G. Romanchak flew into Hana, Maui to hold monthly court in the “Little House on the Prairie-style” Hana Courthouse and hear the arguments presented on the foreclosure and eviction issues relating to the Phillips-Tehiva family and their Hawaiian family land.
The Wells Fargo, as Trustee v. Phillips-Tehiva case has been the focus of local and international media attention causing emotions
to run at very high levels.
Nearly a dozen Maui law enforcement officers were present as well as a full house of community members and Occupy Maui folks attending in support of the Tehiva-Phillips family.
Judge Romanchak was remarkable. At 10:00 am Judge Romanchak sequestered the attorneys in the courthouse. All the windows and doors were closed as the Judge reviewed the case and discussion of settlement between the attorneys.
An hour later the windows and doors opened up and the public followed the Tehiva-Phillips family inside. Judge Romanchak explained to a full court room that he had read the files, but he was not prepared to rule on the bench, that he would take the matters under advisement and that in one month he would be prepared to make a ruling. The Judge further stated that the discussions between the attorneys included some possible resolutions and that “the longer this drags on the more difficult it gets for everybody” but if there were possibilities for settlement he may hold off on ruling in order to allow Wells Fargo and Phillips-Tehiva to work it out.
Judge Romanchak shared that the Hawaii judiciary are very aware of the rising number of these foreclosure and ejectment cases that are coming up in the courts, that some jurisdictions are overwhelmed by these actions and that the appellate courts are trying to get these cases immediately into mediation.
The hearing closed with the Judge stating that there would be no eviction unless he made such a ruling between now and next month. Don’t you wonder if Wall Street is already hedging bets?
While the courts appear to want settlements – it’s apparent that there is a disconnect between the judiciary, the lawmakers and a comprehensive understanding of the shadow banking scheme. The Phillips-Tehiva loan is alleged to be in a trust – but never timely entered the REMIC trust and by New York trust law which governs the trust, any assignment AFTER the trust closes is void.
The Phillips-Tehiva loan was originated by Option One aka Sand Canyon which is no longer in the mortgage real estate business… and Option One was already paid by someone… possibly the Depositor for the Trust – but failed to record the sale and transfer of the loan in the Hawaii Bureau of Conveyances until 3 years after the Trust closed – and 2 years AFTER it went OUT OF BUSINESS. Now, by New York statutes it appears that the assignment is void.
In most trusts, in order to make modifications, the servicer must buy the loan out of the trust at face value; and in order to reduce the principal or modify the loan they have to be willing to take a loss. This is complicated by the fact that on Bloomberg Terminal the loan in the 1A1 tranche of the Trust [where it is allegedly located] is current – fully paid to date.
Even if the Tehiva loan were lawfully in the Trust – the loan is apparently paid – the tranche history show no losses. Nearly half of the loans and tranches have been closed out – the assets are rapidly depleting as the Trust is apparently winding down.
What the courts need to realize is that, for example in this case, Wells Fargo is merely the Trustee on behalf of the certificate-holders of a Trust and it doesn’t want another toxic asset on its books.
In fact, its doubtful that they have room to hold another loan if the regulators were to assess these Trust loans as assets of the bank.
Wells Fargo is stuck with the position of protecting the certificate-holders from thousands of $$$ in litigation, possibly another $3 million judgment or maybe just walking away to pay for the sins of its predecessors. They certainly do not want a jury trial on Maui.
Think about it Wells Fargo:
March 28, 2012 A Maui jury has awarded nearly $4 million in damages to a Molokai couple who sued their condo association and individual directors…
Oct. 14, 2010 A Texas woman visiting relatives on Maui in 2007 slipped and fell at a McDonald’s in Kahului. A jury awarded her $5.67 million…
March 3, 2010 A circuit court jury on Maui has awarded more than $53 million to a group of homeowners…
Yeah, you probably don’t want to face a Maui jury in the Phillips-Tehiva case…
I agree, the banks should not be to eager to deal with a jury in Maui!
I expect that they should make a very fair settlement with Tehiva-Phillips family.
I am excited about Bank Of America facing a Jury in Hawaii!
The Judge in Hawaii has denied BOA’s motion to dismiss our Fraud and UDAP suit.
Click to access gov.uscourts.hid.101609.15.0.pdf
Oh and did you see that House Bill 1875 HD2 SD2 CD1 passed!!!!!
The bill also calls for lenders’ attorneys filing judicial foreclosures on residential property to sign an affirmation stating that she or he verified the bank’s legal standing as well as the accuracy of the documents submitted to court. This requirement is akin to a court rule that has been applied to all judicial foreclosures in New York State.
There needs to be a price to pay for fraud! Dubin Law, and Fred Arensmeyer have really crossed their T’s and even dotted their lower case j’s with my case. I don’t know Lila but I have met Mr Dubin on several occasions and I’m sure represnting his firm is no easy position to land. Best wishes to all opposing the fraud. I hope Wells Fargo runs away from this property. Unless they want to pay for the emotional toll they have wrought on this family as well.
At this point I would find any advice from the legal community a breath of fresh air. Wells Fargo has been giving me the run around, lying, throwing out my paperwork because they could not get to it in their all to brief 30 day time frame, not paying my home insurance, I have PITI. The minute I got involved with Making Homes Affordable real trouble started for me. This last time Wells Fargo did not pay my home insurance, we were cancelled, again, DUH! This time Wells Fargo shopped around buying then canceling insurance policies until they found one that is 5 times more expensive. They emptied my escrow account and want me to put the $$ back. They have raised my monthly payment, sent an appraiser to my home and this I don’t understand; I got a correspondence from a Wells Fargo modification specialist, my eight I think I have lost count, that congratulated me on the reinstatement of my loan and great news I no longer need a modification! Who un instated my loan and why? Wells Fargo tried to get me to do really stupid stuff like stop paying my mortgage. Yea Right, that would just make it easier to take my property.
I heard this through the grapevine that Wells Fargo get’s $1500.00 every time a customer gets another modification specialist. I am now being abused by an Executive Mortgage Specialist, Office of Customer Complaints. I get the same broken record statements. I have been trying to get help since Jan 2009. I get e-mails and letters from companies that want to help me if I pay them like $700.00 a month for a period of time. If I had $700.00 extra a month I would not need a mortgage modification! There was one guy who wanted to vacation in my home in exchange for mortgage help.
I’ve been told by attorneys to keep good records of every phone call (even record ’em), every letter and all correspondence. Depending upon your particular loan – and knowing that these banks sold off most of these loans and then bought “servicing rights” and also passed those servicing rights around as part of the scheme (even among their own entities)… we may be looking at FDCPA violations, specifically §§ 1692f, 1692e, and 1692d. If they are debt collectors – then these may be debt collecting abuses. Just because their name is Wells Fargo, Wells Fargo Bank, Wells Fargo Home Mortgage – does not mean they are the same entity or that they are still the mortgagee of your loan. There is a great case in Hawaii USDC court under Judge Mollway where she just entered a 47-page Order… and if I were Wells Fargo at this point – before Judge Mollway has Wells Fargo patents and master agreements in her hands regarding servicing schemes, I’d be making offers to settle… because I don’t think a Hawaii jury is going to be particularly kind to these banks given the fraud and the unscrupulous foreclosures and collection practices. See Rosa E. Soriano V. Wells Fargo, N.A. et. al, Civil No. 11-00044 SOM/KSC (I think Judge Mollway gets it).
That case is coming up soon, unless the parties agree to a new court date or settle first.
Yup, this is exactly what Wells Fargo did to us, amongst other questionable business practices.
I have written to the Comptroller of the Currency on several occasions in the hopes there will eventually be justice for Everyone who is experiencing the same thing.
I am also on disability. This is my only income. Wells Fargo, at one time, said I didn’t make enough money recoup the $80,000.00 I owe
on my loan over a 30 year period if my mortgage was modified. Who are
they kidding? If my math is correct and my loan was reduced to say
$600.00 a month over a 30 year extension they would have made
$216,000.00. Their profit would be $136,000.00.
Live toys are the best toys and humans are the best live toys.
Where might I find the Soriano vs. Wells Fargo info? Marcy- I would love to have a few minutes of your time to compare notes as I have very similar circumstances (I read your case docs here in this forum) and have been trying for mod (HAMP) with BoA since April 2010. I do have recorded calls and proof of all mine and 3rd party efforts. It is a nightmare out there…even last summer after providing Legal Aid with documentation, I was told that mods were not negotiable by their attorney after pointing out that BoA had not followed HAMP guidelines. As I understand Legal Aid was given grants to help. Sounds like more and more people are like Holly Best…having reached out to do the right thing and are beat down to give up and go away. Hope your husband is recovering from his accident. I’m in similar position. Rehab is now lifelong process to enable and maintain as much pain free range of motion as possible. I admire your not backing down and standing up to your abusers. I know from my own experiences what you’ve faced and will be following your case with much prayer and hope. Stay blessed and keep the faith!
Aloha Roy, Here is the link for Soriano vs Wells
Click to access USCOURTS-hid-1_11-cv-00044-0.pdf
I just googled it and it popped right up.
My case is not so much based on the mod itself, as it is UDAP and Negligence.
That is a different issue than the mod being negotiable or not.
WE can lose everything by doing this, but if we don’t I will feel I just allowed them to
roll over us. If we wind up living in a tent at least I will know I tried my best.
My only “crime” like yours, was believing the bank, and doing what they asked of me,
believing their reassurances.
Who could imagine that when the government puts out a program to help people,( that the banks agreed to because of the banks bad behavior and bail out,) that the banks would use it to lure people into default and as a way to make money from both the government and the people they
are causing to default and go homeless?
When the government and banks advertise the program, you expect it to be legit.
I did have other options, I would have just sold my home, but I did not because I relied on the bank’s information and directions, and they were the only one’s I could rely on because they were the only one’s that possessed the information I needed to make a good choice.
If you go to a Dr, and the Dr tells you that you should have surgery instead of an alternative
because the surgery is cheap, painless and works every time,( and he knows this is not true ) and you do it, and you wind up in pain, broke and the Dr made money because he is paid by someone besides you for every similar surgery he does, there is no doubt he would loss, money, his career and go to jail!
I am not concerned about the “scammers” we are all warned about, they are small potatoes and
and will get caught and punished. To me the actual banks are the biggest and most dangerous scammers of them all.
I guess I am singing to the choir though. :-}
The difference between outlaws and banks is an outlaw won’t take your home!
No you are wrong. Dr.’s do everything wrong and get away with it.
I used to have a career, a good one. I was destroyed with malice of fore thought. I was sexually harassed by a certain Dr., who has 2 previous accusations of sexual harassment.
This Dr. came to my workplace and assaulted me. Of course no one believed me.
I even called him after my personal, professional, mental health, physical health and marriage had been destroyed and confronted him about what he had done. He admitted to me he did sexually harass me and did assault me and Lied to our employer and the police to save himself.
I tried everything to sue “Them” and “Him”. It did not work. I could not find a lawyer, even if I could have paid for it. “They” made sure I had no money and no credibility.
“They” even abused me out of more than one legit work comp claim.
No one really cares about anything except where “There’s”, is coming from.
Always claim a violation of RESPA, the Real Estate Settlement Procedures Act of 1974.
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