Las Vegas Sun

October 1, 2014

Currently: 67° — Complete forecast | Log in | Create an account

Judge overturns order, allows 8,900 Nevada foreclosures to resume

Image

Las Vegas Sun file photo

A federal judge on Monday overturned an order from a District Court judge, allowing foreclosure proceedings to resume on about 8,900 Nevada homes.

Updated Monday, Jan. 31, 2011 | 7:17 p.m.

A Bank of America subsidiary can resume work on thousands of foreclosures in Nevada after a federal judge on Monday dissolved a restraining order against the foreclosures statewide issued by a Nye County District Court judge.

The Nye County order was overturned Monday by Chief U.S. District Judge for Nevada Roger Hunt.

Hunt agreed with arguments by Bank of America that Pahrump homeowner Suzanne A. North has little chance of winning her lawsuit on the grounds that the B of A subsidiary, ReconTrust Company N.A., was not the trustee in her mortgage when it initiated foreclosure proceedings.

A ruling in favor of North by Nye County Judge Robert Lane on Jan. 20 had halted work on more than 8,900 foreclosures in the state.

"Plaintiff’s amended complaint does not show a likelihood of success because this court has repeatedly ruled against claims such as those plaintiff brings," Hunt wrote in his ruling.

"The ever-expanding body of case law within this district (of Nevada) holds that the Nevada law governing nonjudicial foreclosure does not require a lender to produce the original note nor does it require that ReconTrust be substituted as trustee under the deed of trust as prerequisites to non-judicial foreclosure proceedings," Hunt ruled.

He also ruled that Lane's restraining order was invalid since Lane did not require North to post a bond -- a bond that would have satisfied damages to Bank of America from the issuance of the restraining order, should Bank of America prevail in the litigation.

"The state court did not require plaintiff to post a bond, which under Nevada law renders the temporary restraining order void," Hunt wrote in his ruling.

Hunt's ruling appeared to come without a hearing and without attorneys for North filing paperwork opposing Bank of America's motion that the restraining order be dissolved.

John Christian Barlow, North's attorney in St. George, Utah, said he was studying Hunt's ruling.

Barlow confirmed the judge issued the ruling without a hearing. The ruling came before Barlow made an appearance in the case and before Barlow filed any briefs opposing Bank of America's motion that the Nye County restraining order be dissolved.

Barlow said he disagreed with the language in Hunt's order that Nevada law does not require that ReconTrust be the trustee before it can initiate foreclosures.

He said that would mean anyone could file a foreclosure.

"I could file a foreclosure on your house," Barlow said.

The attorney said he hadn't yet decided whether to appeal and was considering how Hunt's ruling may affect his plans to convert North's case -- alleging Bank of America and three subsidiaries fraudulently initiated foreclosure proceedings -- into a class-action lawsuit.

Join the Discussion:

Check this out for a full explanation of our conversion to the LiveFyre commenting system and instructions on how to sign up for an account.

Full comments policy

Previous Discussion: 12 comments so far…

Comments are moderated by Las Vegas Sun editors. Our goal is not to limit the discussion, but rather to elevate it. Comments should be relevant and contain no abusive language. Comments that are off-topic, vulgar, profane or include personal attacks will be removed. Full comments policy. Additionally, we now display comments from trusted commenters by default. Those wishing to become a trusted commenter need to verify their identity or sign in with Facebook Connect to tie their Facebook account to their Las Vegas Sun account. For more on this change, read our story about how it works and why we did it.

Only trusted comments are displayed on this page. Untrusted comments have expired from this story.

  1. Wow! ? 1. If a notice of default can be recorded by a "Trustee" who has not substituted in as Trustee, how does anyone tell which are real notices of default from spurious notices of default?

    ?2. If a Trustee's sale can be held by someone who has not substituted in as Trustee, then how does anyone tell which are real sales and which are phony?

    ?3. Can a non-substituted in "Trustee" give title through a Trustee's deed that is anything more than a "wild" deed without extensive further litigation to clear title?

    If the answers to these questions are "yes", as they seem to be from the report of Judge Hunt's ruling, then the Bank of America will lose a lot of money, because it undermines the value of the Trust Deed system. No winning bidder can be sure that the title he gets is legitimate -- and this will be reflected in fewer -- and lower bids -- received in foreclosure sales. And when the Bank later tries to collect Deficiency Judgments in such cases, they will be faced with the issue of the Bank not having mitigated
    damages.

    All for the sake of avoiding some simple paperwork and a recording fee.

    Wow!

  2. Justice can be bought for the right price. The B of A has no proof they own the loans, they sold them.

  3. "...the Nevada law governing nonjudicial foreclosure does not require a lender to produce the original note..."

    The problem seems to be the court's knee-jerk reaction to anyone claiming "produce the note," and perhaps misuse of the concept. It's been the law of notes for centuries upon demand the person attempting to present the note must exhibit it along with proof of authority to enforce it. That survives today as UCC 3-501, in Nevada as NRS 104.3501. The trust deed simply cannot LEGALLY be enforced separately from the note -- but courts are rubber-stamping these crooked foreclosures anyway.

    "Hunt's ruling appeared to come without a hearing and without attorneys for North filing paperwork opposing Bank of America's motion that the restraining order be dissolved."

    This smacks of a fast backroom deal -- a ruling from Judge Hunt without the opportunity for an opposing response? Apparently neither fundamental fairness nor due process are any concern to this judge. Why should it? He's appointed for life at a fat salary & benefits. He's virtually untouchable, and certainly cannot be sued.

    lericgoodman, mred -- great posts from both of you.

    "The note is the cow and the mortgage the tail. The cow can survive without the tail, but the tail cannot survive without the cow." -- the late Professor Chester Smith of the University of Arizona College of Law, as cited in Restatement (Third) of Property, Mortgages 5.4, Reporters' Notes

  4. Here comes the rain.

  5. I kinda of think that this is a great time to buy. All these negative vibes makes me think that the bottom is in. All of the "experts" are saying years or decades before things get better. Really??
    They sure didn't call the "bubble" did they.

    Las Vegas is a great place to live and never forget that.

  6. This won't be the end of this one.

    B of A aka Countrywide has lost some paperwork on some homes or they never had it. They are going to have to prove they have the right to collect on the note or take the home at some point.

    There are going to be many more judges looking at this in the near future.

  7. Martha, you'd better get those cows in the barn this storm's gonna be a doozy.

  8. "B of A aka Countrywide has lost some paperwork on some homes or they never had it. They are going to have to prove they have the right to collect on the note or take the home at some point."

    vegaslee -- another great post from you, and far more truth to it than you may have imagined.

    Start out with what got me going on this topic, Gretchen Morgenson's 2/28/09 column in the New York Times "Guess What Got Lost in the Loan Pool?" still @ http://www.nytimes.com/2009/03/01/busine...

    90% of everything anyone needs to know on this point is found right on the Note itself, terms likely on every Note out there (the standard being a form (Google it!) called "MULTISTATE FIXED RATE NOTE--Single Family--Fannie Mae/Freddie Mac UNIFORM INSTRUMENT" form series 3200):

    "1. BORROWER'S PROMISE TO PAY

    "In return for a loan that I have received, I promise to pay U.S. $____ (this amount is called "Principal"), plus interest, to the order of Lender. Lender is ___________. I will make all payments under this Note in the form of cash, check or money order.

    "I understand that Lender may transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder."

    Break it down to its important bits -- "this Note" obviously means the actual, physical Note the homeowner signed, and ONLY the "Note Holder" is "entitled to receive payments under this Note"

    Do the math, then get outraged about the massive fraud of Nevada foreclosures.

    "If you're going to take my house away from me, you better own the note." -- Joe Lents (who hasn't made a payment on his $1.5 million mortgage since 2002) in Bloomberg's 2/22/08 "Banks Lose to Deadbeat Homeowners as Loans Sold in Bonds Vanish"

  9. All this "produce the note" jibberish is baloney.
    If YOU borrowed the money, YOU are responsible for repayment. Mortgages have been "sold" for decades, but the money is still owed. It's not the lender's fault if you over paid, over borrowed or had some bad luck in life. When I lost my job, I found ways to keep the payments current, of course I bought within my means, and have sacraficed a lot of "luxuries" to honor my obligations. By "luxuries", I mean things like selling a vehicle, eating at home a lot more, controling my energy usage, taking odd (1099) jobs, etc.
    If people make their payments, there is NO problem. Too many people today want something for nothing. What ever happend to integrity and personal responsibility?

  10. "All this "produce the note" jibberish is baloney."

    Bakersfield -- that's right, keep posting and proving how profoundly ignorant you are on this topic.

  11. "...the Law clearly stipulates that the Financial Inst. must produce the Note to foreclose on a property."

    Floyd_M -- almost missed your post.

    What "Law" are you referring to? The entire west is non-judicial foreclosure. On the surface that's not true at all, it's all between the lines. Only the security instrument (aka mortgage, trust deed) is being used for foreclosures, and all on the foreclosing side assume the note even exists. Snoop around the NY Times link I posted -- lots of good stuff from Gretchen Morgenson on this issue.

    Behind it all is lost notes, or notes never properly endorsed or transferred, yet relied on for elaborate securities transactions and worse, tens of thousand of foreclosures.

  12. "Is the Chief U.S. District Judge for Nevada an elected position?"

    allaroundtown -- federal judges are appointed for life, as I first posted. He's legally untouchable.

    virtualparalegal -- what ever do you mean by "court corporations"? And "You're guilty without due process so they can take your property . ."? Your post is not making sense here.

    "The paper bubble is then burst ... there will be a general revolution of property in this state." -- Thomas Jefferson by letter to John Adams, 1819, from "The Works of Thomas Jefferson" Vol. 12