Daily Archives: November 14, 2012

More on the homeowner Niko Black’s case against Wells Fargo and the judge’s decision

A tentative ruling written beforehand by Judge Albert:

United States Bankruptcy Court

Central District of California

Santa Ana

Tuesday, November 13, 2012 Hearing Room 5B

11:00 am

8:12-16346 Niko Black Chapter 7

Order to Show Cause Hearing re: why sanctions should not be imposed

for violation of the automatic stay

#23.00

Docket #:     1

This is the debtor’s motion for imposition of sanctions for knowing violation of the automatic stay.  The matter was set for hearing under the court’s “Order to Show Cause Why Sanctions Should Not be Imposed…” entered October 18, 2012 in response to the motion.  In the meantime, the debtor has also filed an emergency motion for an order restoring debtor to possession of her premises which was denied by the court.  When the court issued the OSC, it appeared that there might have been a violation of the stay given the court’s order denying Wells Fargo’s motion for relief of stay for lack of prosecution entered August 29, 2012 when Well Fargo inexplicably failed to appear at a continued hearing.  However, after review of the opposing papers filed by WellsFargo and the Sheriff it has become obvious that no sanctions are appropriate.  This is because as of the date of the eviction, October 10, 2012, the stay of 11 U.S.C. §362 had already dissolved by operation of law.  This is the second bankruptcy filed by the debtor within one year, and so under §362(c)(3), the stay was only thirty days in duration.  The instant case, the second, was filed May21, 2012, only a few weeks after her first case was dismissed.  Therefore, the stay lapsed on or about June 21.  There was no motion filed to extend the stay.  Mention is made of the conflict of case law concerning whether the stay continues s to property of the estate.  The court need not decide which side of that divide is appropriate inasmuch as there is really no “property of the estate” at issue here, since debtor holds over not under a lease (which arguably could be assumed and assigned) but after foreclosure.  So there is just no conceivable interest for the estate but only naked possession. Debtor argues that the stipulated judgment entered into in Superior Court was made during the 30-day pendency of the stay in this case.  Therefore, she argues, this was void andnot a basis for proceeding to evict.   But even if this is correct that is a matter for the state court to determine and it simply cannot serve as a basis for finding either contempt or a violation of the stay in October since, as explained above, there was no longer any stay by then.  Moreover, §362(k) only provides a basis for imposition of damages or sanctions for a knowing or “willful” violation;the bank has submitted credible evidence that at that time it did not know of the second bankruptcy, and since the judgment was by stipulation, debtor cannot be heard to argue that this was a willful violation..  In sum, although the court is enormously sympathetic to the debtor’s troubles there is simply no basis here for imposition of any sanctions or contempt.

Tentative Ruling:

11/12/2012 11:40:37PM Page 26 of 30 Judge Theodor Albert, Presiding

Courtroom 5B Calendar

United States Bankruptcy Court

Central District of California

Santa Ana

Tuesday, November 13, 2012 Hearing Room 5B

11:00 am

Cont….  Niko Black Chapter 7

Deny.

Party Information

Debtor(s):

Niko  Black

Movant(s):

Niko  Black

Trustee(s):

Karen S Naylor (TR)

Now we know that Ms. Black filed a second bankruptcy.The breakdown from OC Weekly:

Unlike a previous hearing in late July, representatives from Wells Fargo appeared before Federal Bankruptcy Judge Theodore C. Albert in Santa Ana this morning.

“It appears to the court that there may have been a violation of the stay,” Albert wrote last month summoning them to explain why they shouldn’t be held in contempt, sanctioned and made to pay damages for the eviction. Black had long contended that the federal court order in question from Judge Albert precluded theOrange County Sheriff’s Department from carrying it out.

Despite that, leading into today’s ordeal, a tentative ruling written beforehand did not bode well for Black and her motion was ultimately denied.

Prior to all this, Wells Fargo’s Media Relations & Corporate Communications staffer Lisa Woolery wrote to the Weekly that, “Ms. Black has filed a total of two bankruptcies within one year. Because the second bankruptcy was filed within a year of the first one, the automatic stay against creditors Ms. Black received in the second case terminated by operation of law on the 30th day after she filed the second case.”

As for not showing up in court on a prior date to reaffirm that position? “In [Wells Fargo and Carrington Mortgage Services‘] case,” she says, “it was believed that arguments would not be necessary on a motion that itself was no longer necessary.”

Judge Albert essentially agreed with the first part, saying he was unaware somehow of the second bankruptcy–a notion the bank also submitted to him in a manner convincing his judgement.

“I denied the motion,” Albert continually reiterated to Black’s pro bono attorneys withStephen R. Golden & Associates. “I did not resurrect the stay.”
He later stated that he could have extended it preventing eviction, but that Black did not file for a rehabilitation of it. For her part, she felt she was led to believe she had no reason to do so.

From his bench, Judge Albert declared that his decision was that no sanctions, nor damages would be levied against Wells Fargo for the October 10 eviction unless it could be convincingly argued otherwise.

“The bank is not without blame here” he later qualified. “They have egg all over their face.”

Asked if a representative from Wells Fargo would like to explain their absence over the summer, Judge Albert said to the man who spoke on the bank’s behalf, “May I suggest to you that was a tactical mistake?” arguing that a “cleaner,” and “less hurtful” eviction could have been had.

“I’m, perhaps, not as of a stone heart as I appear,” he added. Judge Albert wanted assurance that Black would be able to retrieve all medical equipment sometime in the next 48 hours, but that the OCSD be present to oversee matters.

Towards the end of the hearing, Attorney Stephen R. Golden emphatically argued, “This loan is one that she did not sign!” while his office has deemed it predatory in nature with high starting interest rates and a large balloon payment built in. “[Wells Fargo] did not show up to avoid showing any proof!”

“What the court did today washed its hands of the case,” Golden would later say after the fact, disagreeing with Albert’s actions. “The next step for us is unlawful detainer court. It decides who is in immediate possession of the property. We’ve also got a superior court action going, a wrongful foreclosure and quiet title lawsuit. We’re going back and saying that she never signed the loan papers. We’re trying to overturn the trustee sale and get the title back to her.”

“Within the next week we hope to get Black back in her home, ” he adds optimistically. “It might takes months if that doesn’t happen.”

Bank of America Sued Over $261 Million in Mortgage Bonds

Bank of America Corp., the second- biggest U.S. lender by assets, was sued by investors over $261.2 million worth of residential mortgage-backed securities.

The case was filed yesterday in New York State Supreme Court in Manhattan by investors including Phoenix Light SF Ltd. They asked for damages of more than $122.2 million from defendants including the Charlotte, North Carolina-based lender and its Countrywide unit.

Read on.

Charlie Engle: Runner, not Wall St. executive, prosecuted for fraud

Rock Center with Brian Williams Thursday at 10pm/9c on NBC: Video games replace painkillers Search for ‘Most Wanted’ terrorist Questions about man prosecuted for mortgage fraud

An emotional Charlie Engle emerged from Dismas Charities, a halfway house in Greensboro, N.C., and greeted his two teenage sons, telling them he could not have done it without them.

He was referring to the prison term he just finished serving (most of it at a federal prison in Beckley, W. Va.) for mortgage fraud.

“The second I walked out that door and I was no longer in prison,” Engle told Rock Center’s Harry Smith.  “It’s almost impossible to explain the feeling, but it is just that sense that OK, now I can be here for my boys again.”  Engle’s interview airs Thursday, Nov. 15 at 10 p.m./ 9 p.m. Central on NBC.

Engle spent a year and half in prison for his role in the financial crisis.  But he didn’t work on Wall Street and he was not a banker.  He was convicted of exaggerating his income on his mortgage applications – a common practice during the housing boom.

While many big banks were chastised for risky behavior in lending by Congress, they got bailouts worth billions.  Charlie Engle, meanwhile, was the target of a federal case involving an undercover operative, a dogged IRS agent and conspiring mortgage lenders.

Read on.

BofA offers 30,000 borrowers $4.75 billion in principal reductions

Bank of America ($9.39 0.06%) approved 30,000 mortgage customers for principal reductions on first-lien mortgages with a total value of $4.75 billion as part of its consumer-relief mandate under the national mortgage servicing settlement program.

About 40% of the loans are BofA portfolio mortgages, with the remaining 60% serviced for other shops. Bank of America executives participated on a teleconferenced update to the settlement.

They said that, through September, BofA completed or approved $15.8 billion in mortgage debt relief for 164,000 homeowners.

Read on.

A major blow for homeowner Niko Black: Judge chose not to sanction Wells Fargo and Orange Sheriff Dept.

There was a major setback in homeowner Niko Black’s case against Wells Fargo. It appears that judge went in favor of the bank. I don’t see  any details from her attorney nor from the bank’s attorney. This information was posted on Facebook for Niko Black who was in the courtroom on Tuesday. If I get any information from her attorney’s website, I will post it on the blog. From the Facebook page:

Today we were dealt yet another blow in the pursuit of justice for Niko. The federal court judge found it in his heart to protect once again the actions of Wells Fargo and its affiliates. In what we believe to be a cowardly act he chose not to sanction Wells Fargo or the OC Sheriffs dept.(in fact “they are not to blame” he said) for violating his order. Instead he claimed that Niko made an improper assumption that she was safe from eviction even though he told her differently, three times on the record. I wonder if those transcripts will surface or be conveniently misplaced? The arguments from both sides were heard and when the lawyers from the bank spoke he really gave them a tongue lashing and said that “he’s sure that in the future they will be more delicate with how they handle situations like this”. We couldn’t believe he was giving in like that. He rolled over and allowed them to continue to keep possession of Niko’s home. He even called it their home at one point and that comment drew argument from Niko’s legal team asking him to not make assumptions when Niko has not had her day in court to prove that they don’t own her home and that they are the ones that need to prove ownership. At this time Niko is still displaced. Phisicaly She is getting worse and has less better days than good ones. We thank you all for the support and ask that you keep Niko in your prayers. We are planning a new action in the very near future. Please stay tuned here for word on where and when. This is just one battle, we have not lost the war!

And here is an update from Examiner:

Yesterday, a federal judge has decided to rule in favor of Wells Fargo and the OCSD even though he had previously led Niko to believe, through three statements on court records, that she had a right to stay in her home.

Judge orders Barclays to reveal names of 208 staff linked to Libor probe

Barclays faces having to reveal the names of staff linked to attempts by the bank to manipulate Libor at a London High Court hearing on Tuesday.

Barclays will have to reveal the names of more than 200 current and former staff who have been implicated in the bank’s alleged attempt to manipulate Libor.

Lawyers for Barclays will on Wednesday disclose the names of 208 staff caught up in the scandal. On Tuesday, a High Court judge ordered the bank to hand the names to the legal team of a care home operator that is suing the bank for mis-selling it complex interest rate derivatives.

The disclosure follows an attempt by Barclays to argue against the need for disclosure. However, Mr Justice Julian Flaux said it was “unacceptable” to deny access to the names.

Read on.

Petraeus whistle blower and her surgeon husband are ‘broke, owe millions and are the target of foreclosures’

  • Tampa socialite Jill Kelley and her husband are the target of at least four indebtedness lawsuits and two foreclosures
  • Has prompted speculation she lifted the lid on affair for financial gain
  • Has today been dragged into a second scandal after it emerged that General John Allen sent her up to 30,000 ‘inappropriate’ emails

The housewife and whistle blower at the center of the David Petraeus sex scandal and another involving General John Allen may have been hoping for some financial gain by lifting the lid on the affair, after it emerged today she and her husband are broke.

Tampa socialite Jill Kelley, 37, and her cancer surgeon husband Scott owe millions to banks after the collapse of their real estate holdings in 2010.

The Kelleys are currently the targets of at least four indebtedness lawsuits and two foreclosures in Hillsborough County, according to court records.

Read more: http://www.dailymail.co.uk/news/article-2232271/David-Petraeus-whistle-blower-Jill-Kelley-husband-broke-owe-millions-target-foreclosures.html#ixzz2CAC4SinU
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