Eviction Delayed As Bank, Ms. Mills Agree To Negotiate A Way Forward

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By: Brian Kehrl
Published: 12/23/11

Rhonda G. Mills may yet be able to keep her home.

After five years of negotiating through a mortgage foreclosure of her family property on Emma Oakley Mills Road, Ms. Mills’ effort to challenge her eviction in court took an unexpected turn on Monday morning, when an attorney for US Bank National Association took Ms. Mills up on an offer made several months back, to try to have the Mashpee Wampanoag Tribal Council Housing Department purchase the property on behalf of Ms. Mills and her family.

Ms. Mills agreed, and Falmouth District Court Judge Don Carpenter granted the two parties 60 days to work out a compromise. Before granting the request, however, Judge Carpenter asked a series of questions that indicated a level of skepticism about whether the foreclosure process had been followed properly.

The new negotiations may mean that Ms. Mills’ legal arguments about the validity of the foreclosure—questions that tie into the broader, national debate about whether banks and other businesses involved in mortgage lending and investment properly followed legal requirements when processing loans and foreclosures—may not be fully answered.

The hearing Monday was intended to consider a motion from US Bank, asking the judge to enforce the eviction without a full trial. Ms. Mills was seeking a jury trial at which she planned to challenge US Bank’s legal ownership of the property as a result of the presence of an alleged “robosigner” in a key mortgage assignment document. Ms. Mills asserted that the robosigner did not properly follow document processing requirements, like signing the papers in front of a notary public.

In court filings, US Bank argued that the documents were signed properly. The bank also submitted an affidavit from the official who signed the paper arguing that she had the proper authority to sign the mortgage assignment.

Marie McDonnell, a certified fraud examiner and forensic mortgage specialist with Truth In Lending Audit and Recovery Services in Orleans, who reviewed Ms. Mills’ documents at the request of the Enterprise, said last week that Ms. Mills eviction is ripe for a challenge. Her case is “precisely” the type of situation that state Attorney General Martha Coakley’s recent lawsuit against five large mortgage lenders and the servicing giant Mortgage Electronic Registration System, known as MERS, was meant to address, Ms. McDonnell said.

Ms. McDonnell pointed to the securitization of the mortgage loan, a process in which the loan was sold and resold several times and ended up in a trust of mortgage pass-through certificates, Lehman XS Trust Series 2007-4N, as evidence that the transactions involving the loan were not properly recorded in the Barnstable Registry of Deeds.

Investments in the trust were first distributed in 2007. An investment prospectus for the trust indicates that it was bought and sold at least twice before it ended up pooled into the trust.

Because the registered property was created under a ruling by the land court, all changes of ownership are required to be recorded at the registry of deeds. The sale of the loan into the trust, however, was not recorded at the registry.

The records on file at the registry indicate that the mortgage was originated in 2006 by MortgageIT, with MERS as the nominee. MERS then assigned the mortgage to OneWest Bank in 2009.

The foreclosure, which Ms. Mills did not challenge in court, was completed with an auction of the property in January 2011.

US Bank, acting as trustee for the XS trust, purchased the home for $217,500, well below the $376,000 value of the adjustable rate mortgage on the property.

Judge Carpenter on Monday questioned whether the mortgage documents are all in order. “I want to ask you,” the judge said to the bank attorney, “if all the ducks are lined up in a row here. Are you ready to go forward to trial?”

The attorney, Matthew R. Braucher, said the legal documents “speak for themselves.”

“I think it’s pretty clear,” he said. The mortgage servicer successfully pursued a foreclosure, the home was sold at auction, and eviction is the next step, he said.

“The bottom line is, when payments are not made, it results in foreclosure,” he said.

Ms. Mills, for her part, said after the hearing that she continued to make the approximately $1,500 monthly minimum payments she was required to make. But unless she could afford to pay about $3,000 per month, the principal was set to increase. She could not afford the larger amount, which is why she began to pursue a loan modification through an independent firm, which she said advised her to stop paying her mortgage. She said she only stopped paying for a few months.

Judge Carpenter asked if Mr. Braucher agreed with the judge’s interpretation that the chain of title could be contested and that the bank would have to come in and prove what it owned and when. “Someone has to come up with the original note,” he said.

Mr. Braucher said he does not think the bank would have to prove chain of title and possession of the original note. The judge said he disagrees with that reading of the law.

Judge Carpenter also inquired of Ms. Mills whether she had notified the attorney general of her concerns, which Ms. Mills said she had, earlier this year.

He suggested to Ms. Mills that she find a lawyer and ask the attorney general to become involved.

After the hearing, Mr. Braucher declined to comment on the case.

Ms. Mills said she is relieved at the development and she hopes that during the next two months she can work with the bank and the tribe to find an arrangement that works for all parties.

She said she asked the bank if they would explore a deal with the tribe several months ago, but was told that the eviction would proceed.

Yesterday morning, Ms. Mills said she received a call from a OneWest representative, asking her to agree to negotiate purchasing the property back. Ms. Mills said she asked for the representative to agreed to certain terms, like selling the house for no more than the auction price, but was told that the representative could not make such a pledge. Further, she said she was wary of signing paperwork to initiate a loan when she has doubts about the legal title.

“I’ve tried to work this out with them for four years,” she said. “I am not going to go backwards.”

A spokesman for the Minneapolis-based US Bank said the matter is being handled by the mortgage servicer OneWest, and referred all questions about Ms. Mills’ case to the California-based lender.

A spokesman for OneWest said privacy restrictions prevented him from responding to a series of questions submitted by the Enterprise. He did not respond to a request for comment on the latest developments by the Enterprise’s deadline yesterday evening.

Marie A. Stone, secretary of the Mashpee Wampanoag Tribal Council and a housing advocate, said the information that the bank wants to negotiate is “wonderful news.” The tribe may be able to purchase the home and lease it to Ms. Mills under a federal loan guarantee program known as Section 184, she said.

The Section 184 Indian Home Loan Guarantee Program, part of the federal Department of Housing and Urban Development’s Office of Native American Programs, guarantees to lenders that the loan will be repaid by the federal government if the borrower defaults.

Ms. Stone said the negotiations for this deal have not yet begun, but the tribal council has committed to using the program for five homes at first, and 15 after, to prevent tribe members from being evicted as a result of mortgage foreclosure.

“Our goal is to not lose one more tribal home to foreclosure, even if that means we assume the loan under Section 184,” Ms. Stone said.

11 Responses to "Eviction Delayed As Bank, Ms. Mills Agree To Negotiate A Way Forward"

  1. I could only have hoped that i had a 160,000.00 dollars to have partied with for a few years and never have to pay back. BAILING THESE OUT ARE WRONG

  2. Hey, massey....bite me.

  3. For the record....I took responsibility for my actions but remember I wasnt alone in this and fell under some dire circumstances...before you speak with such a heartless tongue, know what your talking about. Do you think for one second I would put my business out to the public....4 years I was trying to make this right and I had the income to take care of my responsibility. We are talking about some outright crimes against consumers coming from the lips of people like Martha Coakley, John O brien and forensic experts! You can't party too much with Cancer you heartless fool!

  4. Massey......no ones bailing me out!! I fought this and tried to make it right....falling flat on my face...alone...because I knew this was my problem!!!!! Have some compassion or get some K, alot of people have been victims of this and sure are not riding around in a Mercedes! Mistakes we've made but not intentionally. When you are in the big business to help people and you take advantage of them through power and money...this is sinful and to top it off focus on the weak!!!!

  5. Massey......no ones bailing me out!! I fought this and tried to make it right....falling flat on my face...alone...because I knew this was my problem!!!!! Have some compassion or get some K, alot of people have been victims of this and sure are not riding around in a Mercedes! Mistakes we've made but not intentionally. When you are in the big business to help people and you take advantage of them through power and money...this is sinful and to top it off focus on the weak!!!!

  6. Sorry about the double message, but then again maybe it should be tripled to get the point!

  7. Be nice nighthawksoars (smile) with that name it sounds like you may be native American! I love you my friend but remember....my grandmother once told me a bird can only fly so high! By your comment I see I have your support! Thank you for that but I ask all to keep it respectful! Xxoo

  8. I am going thru the same thing as Rhondamills with the same mortgage company One West. I have been fighting them for 2 years. Also fell on hard times but the way they went about the loan modifications and the amt of time it took and is still taking is ridiculous. Foreclosure proceedings were started last year, but came to a halt when Freddie or Fannie stepped in and gave us a ridiculous payment AGAIN but had to take it in order to stop foreclosure. Now we r in the same boat with a high payment and they want us to do another loan modification. That was almost three weeks ago and have not gotten any papers yet. I have called twice and they say they sent them out. Are they taking so long so they foreclose again? Ugh!!! It has been a battle. And Massey u are heartless. U dont know peoples circumstances and why they fall on hard times and u also know there are a lot of ppl going thru this. U r just wrong. I read Rhonda's story and said that's me and wanted to post. Going to proceed forward also to keep my home and make sure everything was done legally. Thank u CapeNews for having this story for ppl to read and identify with.

  9. I just read your story Rhonda, and it is like a carbon copy of what has happened to our daughter Becky since she moved to South Carolina....Her house is up for a "Short Sale" due to the unscrulpulous people at the banks involved when her loan was sold numerous times....they tell you to stop paying the mortgage so that you can modify your loan, and then they step in like wolves for the kill and foreclose.....we certainly need a "new system" for sure....Valerie

  10. She really needs to get in touch with John O'briens office to see if there is any fraudulence related to her home. It goes deeper than anyone knows!!! All I wanted to do is take responsibility for my choices only to be kicked down over and over. This could of been settled to benefit everyone, but how can it be when those in powerful positions have control. Families are affected and left in a daze! In my journey to figure out what has happened I came across some wonderful people who led me to where I am. Google "White Paper", John O'Brien county registrar of deeds Salem Deeds and Marie O'Donnell. If it wasn't for my strong spirit, loving my family and most important of all, my God Jehovah, I would not be whole today...It has been an awful journey that was not necessary! I wish you the very best...I say keep posting and don't be afraid to speak out!!!

  11. It is time all of us fighting this battle in silence come together and share in the fight. If you are in foreclosure know that you are not alone and that you may be a victim of fraud. Even if you are NOT in foreclosure your property title could be defective making it hard to sell when you want or need to. EVERYONE - If you have a mortgage- READ THE FIRST PAGE OF YOUR MORTGAGE- Does it say - MERS-Mortgage Electronic Registration Systems? YOU MOST LIKELY HAVE A CLOUD ON YOUR TITLE !!! Educate yourselves about what this means to one of the most important investments you have- YOUR HOME

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