Nationstar Mortgage went from private equity flop to a top servicer of troubled loans, thanks to deft management and a Fannie Mae partnership once hidden even from parts of the government.Fullscreen Mode
Secret agreements, troubled loans, and misrepresentations, oh my!
Are the parties just deft managers of debt – or are they Collectors in Crime ? And is the press complicit in their “reporting” in not telling the facts and the constitutional issues with the secret agreements and the foreclosing on homes they have no interest in!
An example of a FNMA and Nationstar bankruptcy claim – wherein they claim a foreclosure sale by Nationstar then transfer to FNMA activities these happen everyday across are nation without any oversight of the parties in a non-judicial foreclosure –Fullscreen Mode
It is clear the parties are out of control and they have a mind set – of all is legal – they determine what the law is ” willful violation of the automatic stay in the below case:
On November 11, 2013,
Creditors’ counsel replied, outlining reasons why it believed the stay did not apply. ….Creditors argue that they did not need to seek stay relief as they believed that the Debtor had no legal or equitable interest in the Property. …… [here is a legal demonic specialty ]citing these cases, Creditors argue that since the Property was sold at foreclosure, Debtor has no legal or equitable interest in the Property. However, “property of the estate” is not as simplistic as Creditors would like to make it. Rather, the issues at play in this proceeding are nuanced and an in-depth understanding of property rights and bankruptcy law is necessary to parse them. “It is well settled that a debtor’s mere possessory interest in premises, even absent any
legal interest, is protected by the automatic stay.” In re Dominguez, 312 B.R. 499, 506 (Bankr.
S.D.N.Y. 2004) (citing In re 48th Street Steakhouse, 835 F.2d 427, 430 (2d Cir. 1987) (“A mere
possessory interest in real property, without any accompanying legal interest, is sufficient to
trigger the protection of the automatic stay.”)). Courts in all ten circuits have found that the
automatic stay protects a possessory interest in property. Case law makes clear that the writ of assistance is not a ministerial act like the delivery of a deed. “A ministerial act is one that is essentially clerical in nature.” Soares v. Bockton Credit
Union (In re Soares), 107 F.3d 969, 974 (1st Cir. 1997).
“[W]hen an official’s duty is delineated
by, say, a law or a judicial decree with such crystalline clarity that nothing is left to the exercise
of the official’s discretion or judgment, the resultant act is ministerial.” … If the Debtor was entitled to notice and an opportunity to be heard prior to the issuance of a writ of assistance, then her possessory interest must remain unaltered following a foreclosure sale. See Burg v. City of Buffalo (In re Burg), 295 B.R. 698, 701 (Bankr. W.D.N.Y. 2003)
(“That the petitioning creditors have need to obtain an order of eviction is itself an acknowledgment of [Debtor’s] possession of the property. ….
In Perl, the state court issued a writ of assistance to the appellant who purchased the appellee’s property at a foreclosure sale. Id. at *1. Soon thereafter, the appellee filed a bankruptcy petition. Id. Despite having notice of the bankruptcy action, the appellant executed the writ of assistance. Id. at *2. Similar to the present case, appellant argued
that following the foreclosure sale, delivery of the deed and issuance of the writ of assistance the appellee no longer had a legal or equitable interest in the property. Id. The court concluded that the appellee still maintained a possessory interest even after the issuance of the writ of possession and its execution was a willful violation of the automatic stay.
Even a bullying – which happens – and many attorneys across the country just avoid litigation with the armies of attorneys that can be afforded by FNMA –
Opp’n ¶ 23, ECF No 12. In response to Debtor’s counsel’s protestations that they had violated
the stay, Creditors’ counsel wrote Debtor’s counsel a letter which stated:Unfortunately, I do not agree with your broad conclusion that the§362(a) automatic stay applies in this matter . . . .
. . . .
[Y]ou are not the first to try this gambit on a post-foreclosure eviction that I have handled. Your threat of a Motion for Contempt does not change the clearly established law. Indeed, I caution you that such a motion would likely violate Bankruptcy Rule 9011.
See Joint Stmt. ¶ 19, Ex. H. As to the first factor, Creditors’ conduct and threats in this case are egregious. As to the second factor, Creditors are large financial organizations capable of paying damages. As to the third factor, Creditors’ motive was to evict the Debtor from the residence despite the bankruptcy proceeding; Creditors did not even mention that there was a pending bankruptcy case in their state court motion papers. Id. ¶ 16, Ex. F. As to the fourth factor, there is no evidence of provocation by the Debtor. While FNMA does allege that Debtor’s daughterin-law called its counsel and made “veiled threats,” such conduct does not rise to the level of provocation and certainly does not excuse a violation of the automatic stay by these large organizations. See Opp’n ¶ 12, ECF No 68.