Posts Tagged Injunction
Attorney Walker M. Duke recently obtained a temporary injunction, stopping a foreclosure on a McKinney, Texas family’s home. The injunction will keep the family in their home throughout the life of a lawsuit against their lender, which challenges the bank’s right to foreclose and seeks to keep the family in their house long-term.
“This is a complicated case that deals with a number of Wall Street transactions. The judge took the time to hear the arguments from both sides, thoroughly reviewed the briefing, and after thoughtful deliberation, made what I believe was the right decision. I applaud this judge’s efforts to truly grasp the issues before him,” said Walker Duke. The case involves a home loan that was allegedly “securitized,” a complex process by which a residential home loan is converted into a tradeable security that can be bought and sold on Wall Street–all without the homeowner’s knowledge or consent.
Walker Duke, a Dallas-based foreclosure defense lawyer, noted that the bank made representations to the U.S. Securities & Exchange Commission that were inconsistent with the records they filed with the Collin County Clerk. “In my opinion, the bank is either lying to the SEC or they’re lying to the Collin County Clerk. I’m going to hold them accountable either way,” Duke stated.
The injunction followed the granting of a temporary restraining order, or TRO, that initially halted the foreclosure.
Robo-signing has been in the news for many, many months. The collapse of Bear Stearns and Lehman Brothers, and the near implosion of the entire financial system is coming up on 4 years removed. Yet here we still sit, supposedly coming out of the Great Recession, in the midst of continued rampant foreclosure abuse, as reported by Reuters.
A recent audit of 400 foreclosures in San Francisco showed that 84 percent of them appeared to be illegal. A separate study in North Carolina of 6,100 mortgage documents filed with the local county clerk concluded that about 4,500 of them showed signs of “signature irregularities.” Robo-signing, as the rest of the world knows this fraudulent practice.
One reason cited by the Reuters report for the high number of wrongful foreclosures in San Francisco was that California is a non-judicial foreclosure state. That means that there is no court oversight of foreclosures. In nonjudicial foreclosure states, which includes my home state of Texas, all a person has to do is file a notice of foreclosure sale with the county clerk, pay a nominal filing fee (usually in the $20-30 range), mail a few letters, and PRESTO!…you can foreclose on a house. It’s literally that simple. Believe it or not, having actual proof that you are legally entitled to foreclose is NOT a requirement!
The ease of nonjudicial foreclosures is absolutely terrifying. I understand the reason these laws were set up. Lenders wanted a relatively simple, low cost way to resolve a bad debt (which is a secured debt). When the foreclosure laws were written, this made more sense. The most relevant portions of the current Texas foreclosure laws go back at least 30 years, when residential lending was much simpler. You went down to your local bank, you got a loan, and then you paid them back for the next 30 years. If you didn’t make a payment, you knew what company wasn’t getting their money back (and the bank probably knew you by name as well).
Today, however, residential mortgages are sold, packaged, and re-sold to investors through the process known as securitization. Determining who actually owns your loan is much more complex than it used to be. Because of this, declaring a default and foreclosing on a home is a much riskier proposition than it used to be as well. It’s easy for a bank to get it wrong. What are the consequences for them? Practically none. What are the consequences for homeowners? Losing their home. The deck is clearly stacked in one direction.
Well, the deck isn’t totally stacked in favor of the banks. Part of my job is to make sure banks have consequences for getting it wrong. I’ve stopped foreclosures and evictions dead in their tracks with a temporary restraining order/TRO and injunctions. If you think you’re being illegally foreclosed on like the many, many cases in San Francisco and North Carolina that the Reuters report identified, you need to make sure the banks face consequences as well.
Ok, I couldn’t help myself from putting up a Halloween-themed title today. But it will definitely be a good night for a Fort Worth area couple who will get to stay in their home to hand out candy to trick-or-treaters. A judge granted these North Texas homeowners’ application for temporary injunction, which orders Citibank/CitiMortgage and Fannie Mae to cease all efforts to evict the couple from their home while their lawsuit against Citi and Fannie Mae is ongoing.
The homeowners, represented by foreclosure defense attorney Walker M. Duke, filed suit in early 2011 seeking declarations that CitiMortgage had no interests or rights in their mortgage when it foreclosed on their home in October 2010, and that Fannie Mae’s purchase at the foreclosure sale was therefore void. Following this foreclosure sale, Fannie Mae attempted on two separate occasions to evict the homeowners and have the constable remove their belongings.
One side note–the homeowner that Citi and Fannie Mae tried to evict is a Vietnam veteran who has stage-4 cancer. At least for today, the trick is on them.
A Dallas-Fort Worth-area family will get to stay in their home while pursuing litigation against Nationstar Mortgage and Fannie Mae, who foreclosed and tried to evict the homeowners from their residence. Foreclosure defense attorney Walker M. Duke obtained a temporary injunction, which prohibits the banks from evicting the plaintiffs and their family while the lawsuit is pending in court.
The lawsuit seeks a judicial determination that Nationstar Mortgage had no right to foreclose on the homeowner’s property and that as a result, Fannie Mae, who bid on the property at the foreclosure sale, had no right to take possession of the house.
Attorney Walker Duke of the Duke Law Office, who represents the homeowners, applauded the court’s ruling. “The property records, which were filed by the bank, are false on their face. It’s clear there are legitimate issues as to title and why the bank filed such blatantly false records with county. I’m very pleased that the homeowners will be able to keep their house while investigating the bank’s misbehavior.”
Duke cautioned that bank mistakes are not uncommon. “Property records have been maintained by local county officials for literally hundreds of years–it’s the foundation of our American property system. There are laws that require these records to be accurate when filed. Apparently, the banks feel these laws don’t apply to them. I’m just trying to hold them accountable.”
Dallas attorney Walker M. Duke of Duke Law Office, P.C. recently scored another victory for homeowners by stopping a Fort Worth-area foreclosure just 24 hours before the bank was going to sell the house. Duke, a foreclosure defense attorney, obtained a temporary restraining order that prevented the foreclosure sale. He also filed a lawsuit seeking a determination of the rights of the bank that tried to foreclose.
Attorney Walker Duke stated that there are “legitimate concerns about whether the bank even holds this homeowner’s mortgage.” More importantly, he said, “the bank did not comply with the clear requirements set out under Texas law. This homeowner did not even receive a notice of the foreclosure until four days before the sale was to take place. That’s a blatant violation of even the most basic foreclosure statutes.”
The accompanying lawsuit seeks declaratory judgment that the foreclosing bank has no right to conduct a sale and money damages for fraud.
Chalk up a recent success for homeowners in the fight against wrongful foreclosures. Recently, attorney Walker M. Duke of Duke Law Office, P.C. in Dallas, Texas, obtained an injunction preventing JP Morgan and related entity Chase Home Financial from foreclosing on an Austin-area home. Mr. Duke filed a lawsuit against JP Morgan, Chase Home Financial, and American Homefront Mortgage seeking declaratory judgment that none of those companies owned the actual debt on the house and therefore, had no right to foreclose. See the lawsuit here.
“This injunction was a real victory for the homeowner, but it also sends a strong message to banks. I think we will see a trend of judges holding lenders accountable. If they want to foreclose on a house, they had better be able to prove they followed all the legal requirements,” said attorney Walker Duke, who successfully obtained the injunction.
But attorney Duke cautioned that the bank was not going to stop the foreclosure sale without a court order. “We literally stopped the trustee who was conducting the foreclosure sale on the courthouse steps. The bank had every intention of foreclosing on the home until we obtained an injunction stopping the sale while the lawsuit is pending.”
Duke concluded, “It just shows you how aggressive these banks can be. They take the approach of ‘foreclose first, ask questions later.’ “