Joe and Grace Barroga have been fighting foreclosure and a fraudulent assignment of mortgage since last year when they discovered a fraudulent, robo-signed Mortgage Electronic Registration Systems, Inc. assignment of mortgage made in 2009 by U.S. Bank National as Trustee for RFMSI Series 2006-SA4 Trust – a GMAC securitized loan trust. The Barrogas, like millions of other “responsible” homeowners, fell prey to for the defective Obama HAMP program that allowed banks to default good homeowners that asked for a modification. They are scheduled for eviction on Monday, May 14th.
Pursuant to the Trust controlling documents, GMAC, the original lender, NEVER timely or properly assigned the mortgage in the Hawaii Bureau of Conveyances.
The Barrogas have applied for a Stay until their hearing scheduled for August 22, 2012 – but the Second Circuit Court on Maui has been in a state of fluctuation since the retirement of Judge Raffetto earlier this month and has failed to acknowledge the pleading and even rule on it so, if necessary, a timely appeal to the Intermediate Court of Appeals could be heard.
According to the Barroga’s Honolulu attorney, Arnold T. Phillips II, “Under New York Trust Law “every sale, conveyance or other act of the trustee in contravention of the trust…is void.” New York Estates, Powers and Trusts § 7-2.4. The Pooling and Servicing Agreement is the governing document for the trust and is has a particular cut off date. Any assignment in contravention of the cut-off date is void.”
Marie McDonnell, who authored the forensics report in Ibanez another U.S. Bank National bad act in Massachusetts – another mortgage lien state like Hawaii, investigated the Barroga case and found on page 13 of Securitization Analysis and Foreclosure Forensics™ Documenting the Gaps in the Chain of Title (see full report here):