Monday, April 23, 2012

KingCast and Mortgage Movies watch National City Bank violate RESPA in another fraudulent foreclosure case against grandmother Donna Gaston.


26 April 2012 update: Judge Reynard not immune in Prosecutorial Misconduct lawsuit; he is the one who allowed National City Bank to foreclose, in violation of RESPA. Quel coincidence, read it here.
U.S. District Court Judge Joe Billy McDade ruled that Charles Reynard and James Souk will remain as defendants in the federal lawsuit filed in 2010 alleging that the two former prosecutors conspired with several police officers to frame Beaman for the killing of Jennifer Lockmiller, his former girlfriend. The victim was found in 1993 in her apartment near Illinois State University, Normal. In his ruling released Monday, McDade accepted a recommendation from federal Magistrate Judge Byron Cudmore that Souk and Reynard were immune from claims related to their work on the case after Beaman was arrested but may be held liable for the role they played during the months prior to his arrest. The prosecutors attended daily police meetings and were involved in investigative decisions. 

RESPA Real Estate Settlement Procedures Act 3500.17(e) Transfer of Servicing: If a new servicer changes either the monthly payment amount or the accounting method used by the former servicer, it must provide the barrower with a initial escrow account statement within sixty days of the date of transfer. It appears to me that there is a new servicer involved as the original mortgagee is First Bank of America; I do not think NCB is a successor. Even if they are, notice must be provided.


Note: This conduct might also violate the Illinois Consumer Fraud and Deceptive Business Practices Act. See Sanders v. Lincoln Serv. Corp., 1993 U.S. Dist. LEXIS 4454 (1993). Accord Markowitz v. Ryland Mortgage Co., 1995 U.S. Dist. LEXIS 11323 (1995), could constitute a RICO violation. See comments. Here is your back story.


The screen capture above is the real escrow analysis for March 2002-2003, showing payments owed of $257.20 The one at left appeared during litigation and with no written notice, in violation of the law set forth below, demanding $277.43. Why did this happen?  In my estimation it happened to facilitate a fraudulent foreclosure before the Illinois State Court in a sham proceeding that continues on as Ms. Gaston seeks Justice in the Federal District Court. Read below for more details.


Apologies for the funky exposure in Donna Gaston's first video, above, but stay tuned for a May 2012 in-the-field update on the pending foreclosure case against a 72 year-old woman in Illinois. I want some answers so I am writing Illinois Senate Judiciary and Financial Institution Committee Attorney Giovanni Randazzo. Attorney Randazzo has provided Ms. Gaston with relevant information on prior instance as you shall soon see:


Dear Attorney Randazzo:


We both know that without someone to watch over them little people like Ms. Gaston get run over quick, fast and in a hurry. I am writing you concerning the ongoing case of Donna Gaston v. National City Bank (hereinafter, "NCB"), in which NCB is benefitting from an apparent violation of Federal law, specifically RESPA §3500-17 and 12 CFR section 226.20(c). As you know, these laws require notification to Ms. Gaston prior to the change in payments to her mortgage. NCB changed her payments without notification but that is just the beginning of her nightmare because she is facing imminent foreclosure even though she never missed a payment. What happened here is that the bank retroactively changed the escrow payment in mid-year, implicating Sections c (2)(3) and (6) as well as f (3)(C). Ms. Gaston contends that this change was made in order to facilitate an unlawful foreclosure. She never received written notice of the change as required, and furthermore....(continued on A2) 
 A2
......the appropriate remedy would have been to simply collect the alleged shortage over the next twelve (12) months, not use it as a basis for foreclose for Pete's sake. Mrs. Gaston contends that the original Complaint of Foreclosure listed Item J as the reason for the Complaint of Foreclosure. Item J "Failure to pay the October 1, 2002 mortgage payment and the months thereafter."(one single line that has never been amended in acordance with FRCP 15 Once Mrs Gaston proved she had made every payment in question by producing hardcopy evidence in the way of Official Checks that had been purchased from and tendered back to National City Bank for the mortgage payments, the Attorneys begin to verbally change the reasons for the Compaint of Foreclosure. After two more verbal allegations, which Gaston proved were false, the Attorneys for NCB produced and entered a blatantly false and fraudulent Escrow Analysis which they knew or should have known clearly violated Federal Law 12-226.20(c), RESPA 3500.17, The Mortgage Note Contract, The Adjustable Rider, The Adjustable Rider Note, and FRCP Rules which prevent entering false, fake, or fraudulent evidence into court.


The documents before me show that they even tried to foreclose on property that she has owned free and clear since 1995. 
Sir: As a former Assistant Attorney General and licensed title insurance producer I am asking that you take steps to convene an investigation into this matter as Ms. Gaston is now on her last leg in Federal Court, which continues to ignore these issues. The Defendants have been mounting a res judicata/Younger/Rooker-Feldman argument, but Ms. Gaston cannot see why those very same principles were not applied in her favor when the case was initially brought and she proved payment history years ago. But instead they kept changing the basis for foreclosure and won in State Court, leaving Ms. Gaston to languish in Federal Court even as she has dispositive legal arguments in her favor. How and why do things like this happen in Illinois, or anywhere in America, Counselor? I plan on production of a short film for Mortgage Movies Journal in early May. I look forward to meeting you at such time.


From: "Randazzo, Giovanni"GRandazzo@senatedem.ilga.gov>
To: deegast125@yahoo.com
Sent: Tuesday, September 25, 2007 5:57 PM
Subject: change of payment notification


Donna,


In response to inquiry of the other day regarding Change of payment notification, I found the following federal regulation which I believe is what you were looking for 12 CFR section 226.20(c) which can be found at http://frwebgate6.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=759410339194+1+0+0&WAISaction=retrieve


It essentially says:


"c) Variable-rate adjustments. 45c An adjustment to the interest rate with or without a corresponding adjustment to the payment in a variable-rate transaction subject to § 226.19(b) is an event requiring new disclosures to the consumer.


At least once each year during which an interest rate adjustment is implemented without an accompanying payment change, and at least 25, but no more than 120, calendar days before a payment at a new level is due, the following disclosures, as applicable, must
be delivered or placed in the mail:


(1) The current and prior interest rates.
(2) The index values upon which the current and prior interest rates are based.
(3) The extent to which the creditor has foregone any increase in the interest rate.
(4) The contractual effects of the adjustment, including the payment due after the adjustment is made, and a statement of the loan balance.
(5) The payment, if different from that referred to in paragraph (c)(4) of this section, that would be required to fully amortize the loan at the new interest rate over the remainder of theloan term."


Please let me know if this addresses your issue and if I can be of any further help.  Take care and have a good day.


Very Truly Yours,


Giovanni


Giovanni R. Randazzo, Esq.
Legal Counsel
- Senate Judiciary - Civil Law Committee
- Senate Committee on Financial Institutions
Committee Staff of the Senate President Emil Jones, Jr. and the Senate Democratic Caucus 
(217)782-1920
(217)782-3242 (FAX)
Room 509 State House
Springfield, IL 62706


Office electronic address (Note this is NEW): GRandazzo@senatedem.ilga.gov

2 comments:

  1. Sanders v. Lincoln Serv. Corp., 1993 U.S. Dist. LEXIS 4454

    Both parties' interests are vulnerable under mortgage escrow arrangements. The mortgage lender or servicer may be compelled to expend its own funds to protect the collateral if the borrower does not make the necessary payments at the appropriate time. At the same time, however, the borrower has little control over the amount of the escrow assessment. As a result, an unscrupulous lender has the opportunity to extract an involuntary interest free loan by requiring the borrower to pay more than is necessary to cover the borrower's tax [*3] and insurance obligations. A lender with numerous customers could realize substantial profits from the use of the funds gained through small individual overcharges.


    In sum, plaintiffs are not precluded from suing under the Illinois Consumer Fraud Act simply because RESPA and HUD permit the use of a particular method of calculating escrow payments. This is so because, as plaintiffs have alleged, defendants may have used the "authorized" method in a fraudulent manner. C.f., Heastie v. Community Bank of Greater Peoria, 690 F. Supp. 716 720-21 (N.D. Ill. 1988) (compliance with federal regulations [*13] not a complete defense to fraudulentschemes). If plaintiffs' allegations are true, defendants are not exempt from liability under the Illinois Consumer Fraud Act.

    Defendants' motion for judgment on the pleadings is denied.

    ReplyDelete
  2. Further proceedings found that the ruling applied to the entire class:

    Sanders v. Lincoln Serv. Corp., 1993 U.S. Dist. LEXIS 8056 (1993).

    ReplyDelete