Thanks to Investigator Bill Paatalo of BP Investigative Agency for the heads up on this case. Furthermore if you are suing U.S. Bank please note that THERE ARE NO RECORDS KEPT BY US BANK OF ANY KIND other than receipt of a monthly fee. Bill Paatalo will be dropping a bombshell on these findings in the next month.
Please see ruling: US Bank v Mattos – No Standing 06-06-17
The Supreme Court of Hawaii on certiorari to the Hawaii Court of Appeals reversed a prior summary judgment when it was determined that Ocwen’s witness was unable to speak for the validity of U.S. Bank’s records. Hawaiian attorney Gary Dubin did an exemplary job demonstrating why the fraudulent assigments were void, not just voidable and that US Bank could not prove standing to foreclose.
The Defendants complained that the circuit court improperly granted summary judgment when there were genuine issues of material fact including two mortgage assignments that were robosigned by persons with insufficient authority or personal knowledge as to what they swore to. There were also two assignments to the securitized trust in the chain of US Bank’s alleged ownership that were only supported by hearsay declarations inadmissible pursuant to Hawaii’s Civil Procedure Rule 56 and Evidence Rules. Therefore, the court ruled that the Defendant’s loan violated the requirements of the securitized trust’s Pooling and Servicing agreement.
U.S. Bank’s declarants also had no idea how earlier business records had been compiled in regards to the two invalid mortgage assignments allegedly assigned to the securitized trust.
It was ruled that the Intermediate Court of Appeals (ICA) incorrectly concluded that the declaration of Richard Work, the Contract Management Coordinator of Ocwen Loan Servicing, LLC (“Ocwen”), rendered him a “qualified witness” for U.S. Bank’s records under the Hawai‘i Rules of Evidence Rule 803(b)(6)- hearsay exception for records of regularly conducted activity. In addition, U.S. Bank failed to establish that it was a holder entitled to enforce the note at the time the foreclosure complaint was filed(see Bank of America, N.A. v. Reyes-Toledo, 139 Hawaii(2017)).
Unfortunately in regards to the first issue on certiorari, the court was unfamiliar with the term “robosigning” and ruled that since the legal effect of “robo-signing” was not necessary to the determination of the case, the court sidestepped the issue and set aside the ICA’s holding that, “conclusory assertions that fail to offer factual allegations or a legal theory indicating how alleged “robo-signing” caused harm to a mortgagee” are insufficient to establish a defense in a foreclosure action.
Addressing the factual allegations underlying the “robo-signing” claim, however, the court concluded that there was a genuine issue of material fact as to whether Ocwen had the authority to sign the second assignment of mortgage to U.S. Bank. With respect to the second issue on certiorari, the court affirmed the ICA in part and followed the majority rule in U.S. Bank Nat. Ass’n v. Salvacion (Hawaii App. 2014) and held that, “a third party unrelated to a mortgage securitization pooling and servicing agreement lacks standing to enforce an alleged violation of its terms unless the violation renders the mortgage assignment void, rather than voidable.” However the court limited the holding to the judicial foreclosure context not impacting non-judicial foreclosures.
The court issued a reversal and vacated the prior March 9, 2016 Judgment on Appeal, as well as the circuit court’s August 26, 2014 Findings of Fact, Conclusions of Law and Order Granting Plaintiff’s Motion for Summary Judgment and Decree of Foreclosure against all defendants and remanded the case back to the circuit court.
It is unfortunate that the circuit court and Intermediate Court of Appeals were so obviously biased towards the homeowner that they refused to apply prior rulings of law that would have quickly resolved this case. However, part of the MegaBank-Lower Court game is to exhaust the homeowner of financial resources, while abusing them with delay strategies, discovery deficits and the misapplication of established law. When these unethical methods are employed and a homeowner is forced to return to the lower courts and start all over again, the banks and courts should immediately be held responsible for violations of due process and the deliberate use of legal abuse tactics. The homeowner should in time be compensated for the stress incurred, emotional trauma, any lost earnings, and any resulting physical and mental health degradation. Only when there is a sufficient financial penalty will the banks and courts consider following the rule of law.