Sutter vs US Bank
To say that the homeowners in this case have not been harmed by the actions of this bank is to say that the lack of oxygen doesn’t cause brain damage. When the bank states that they are innocent victims in this case, they are communicating a serious misnomer. Whose responsibility is it, when it comes to reviewing the documents, in relationship to the masses of transferred properties that go in between these banks on a daily basis, to inspect for consistency and legal compliance? Was it the homeowner’s duty to review the documents for discrepancies? Was it the homeowner’s responsibility to compare all signatures on every document to ensure that all forms were unfailing in regards to the compliance with mandates of state and federal law and the rights of these homeowners?
Banking institutions pay immense amounts of money for high-priced legal representation and yet these expensive counselors’ overlooked a huge red flag on the paperwork, in regards to this property. In the real world this is called inferior work and is most likely a cause for dismissal. The red-flag in regards to this property was:
- The fact that there were two different notaries, on two different sides of the country, signing that the homeowners’ were, both, in their presence on April 8, 2004.
A cursory review of the documents would have given notice to this imperfection in the paperwork. This should have been followed by a review of the signatures. How were the homeowners to know that someone thought that it was alright to forge their signatures, notarize and record them? When does the bank take responsibility for their lack of efficiency, therefore, costing their employer and the true victims of the crime, the homeowners’, hundreds-of-thousands of dollars litigating a case such as this? It takes 15 minutes to review a mortgage package; it’s taken six years of these homeowners’ lives for this neglectful act. Six years where these homeowners’, trying to regain their lives through job loss, family loss and a son serving four deployments overseas, have been burdened continuously wondering when the axe is going to fall.
If you would believe the banks’ interpretation of these homeowners’ you would expect to see two devil-like creatures in your midst. These homeowners’ understand that they, like millions of Americans, could have lost the roof over their heads over the past six years, due to tough economic times. They are not unique in today’s world. The only difference regarding these homeowners’, as to everyone else, is that they were the first to find such a fraud, and for that finding they have suffered considerably. That is why this case is so “not on point”. There are no past cases where the homeowners’ had 100% clean hands. That is why the bank tries so hard to blind the court with cases where this is not the circumstance, hoping the courts will allow equity, based on cases that are, again, “not on point”. The bank not only refuses to see where their failure, in this case, is culpable; they refuse to accept accountability for the fact that it was their duty to review all documents and not the responsibility of these homeowners’.
These homeowners’ point of contention is that the bank had a duty to take reasonable steps to ensure that the mortgage sought was being obtained through lawful means, by both the bank and the homeowners’, and should not be awarded, at the expense of the innocent homeowners’, for its failure to exercise due diligence. To reward the bank for failing to exercise due diligence is against public policy and support of such policy would allow the banks to step into the shoes of the court in making determinations of equity when it has been clearly demonstrated that the banks were negligent in their duty to ensure that all documentation was legal and authentic. This lending institution had several recourses that they could have utilized in this case in order to recoup the losses that were due to their own negligence, which included:
- Pursuing remedies against James M. Cohen, the notary;
- The bank’s closing counsel; and
- The title insurance carrier.
These homeowners were forced into bankruptcy perdition due initially to an underhanded foreclosure attempt by Saxon Mortgage, when the evidence showed that the homeowners were only one monthly payment behind on their mortgage. Since this case was instated the evidence of this company’s’ practices have went off the charts. Had Saxon been upright in their bookkeeping and practices the homeowners would have never known about the crime committed against them and they would have lost their home. It can be correctly assumed that there are multitudes of people who have lost their homes that have had this crime committed against them as well. Is it right that the victims have to suffer to due diligent negligence of the bank?
There is a question of ethics as well, on several fronts. The trustee hires an independent attorney to stand with the homeowner’s against this atrocious behavior; only to find that attorney, upon avoidance of the mortgage and note, making backdoor deals with the defendants to sell the avoided mortgage back to the guilty party for $30,000. The trustee took all the monies that had been paid into an unnecessary bankruptcy to pay the trustee’s attorney. The second ethical question comes when the homeowners’ discover that the bank then took it upon them to collect on the notary’s bond, citing a loss that they have yet to incur. They lost title to this property in 2007 and yet they still have this property as a valid mortgage in their systems as evidenced by the constant reporting and viewing of these homeowners’ credit reports. The bank has obviously lost nothing. Let us review what the homeowners’ have lost:
- Loss of public trust due to this banks greed, recklessness and irrationality has caused these homeowners’ to discover the laws that pertain to them do not pertain to the banking world; knowing that their name can be signed and notarized without any consequences to the offending party.
- Loss of respect and belief in the justice system; which has been shattered beyond repair as they watch a pro-creditor system award bad behavior and accept excuses that would have sent these homeowners’ straight to jail.
- These homeowners’ have watched as these public institutions get away with their corruptions while the victims are left defenseless; having their reputations, credit and home tore apart by the offenders.
- Loss of the ability to improve credit rating; these homeowners’ have to live with restrictions on their lives that have been magnified by the fact that this invalid mortgage has been on their credit report for years after the mortgage and note were avoided. The mortgage never existed; however, the bank has been allowed to persecute these victims by reporting a $68,000 deficit on their “mortgage”. This mortgage never existed in the eyes of the law; however, it exists and is very present on these victims’ lives, hindering them from moving forward making necessary repairs to their property and their lives.
These homeowners’ wonder why they even reported the crime; it would have been less painful and damaging to just lose the house to the fraud and move on.
Let’s reverse the situation. What would the consequences have been to these homeowners’ had they been the ones to sign and notarize such important documents? All one needs to do is pick up a current newspaper and read what happens to “people” who break these laws. How is it that these banks are allowed to get away with such crimes with a “pat-on the back mentality? Does the court realize that by allowing these atrocious behaviors to go unpunished is saying that its’ alright to break the law if you are a big bank or business; the laws don’t pertain to you? Per Michigan law, these homeowners’ would have been facing up to a 14-year prison sentence and would have had to pay restitution until their dying day.
Another issue at hand is that these homeowners’ paid for title insurance; however, instead of enforcing the title policy, the bank has elected to go after these homeowners, tarnishing their credit beyond repair as well as their reputation within this court. The bank found pleasure in using a gifted trip against these homeowners’, paying no heed to the fact that this trip was a gift from their daughter, after the death of their son-in-law (her husband) and three year old grandson (her son), touting irresponsibility on the part of the homeowners’. Through every brief submitted by the bank, since the inception of this case, it is noted how irresponsible the homeowners were for going on such a trip and insinuating that the homeowners’ used the proceeds from the “mortgage” to go on this trip. These homeowner’s were already suffering from an unimaginable tragedy, yet the bank used this beautiful gift against them to win the case. Are the banks’ slanderous accusations against these homeowners an attempt to blind the courts to their own tortuous behavior? Could it be that the bank realizes that the title insurance won’t pay off because there was a forgery, by the bank, which invalidates the insurance; not allowing the arsonist to be paid for the fire as it were? What message are we sending to the people of this country when we go after the victims so vigilantly, furthering their pain as with these homeowners, for reporting offenses such as these?
The bank, by continuing to go after these homeowners and not taking other avenues available to them (i.e., sue the Notary; title insurance), have demonstrated their contempt for these homeowners’ instead of, again, doing their job. Why is it alright that these homeowners paid for a title insurance policy, to protect the bank, yet the policy is ignored, as if it doesn’t exist? Why does the bank not go after the notary such as this couple did, get a judgment and then legally go after monies that may actually belong to them instead of sneaking in and grabbing money that they were not awarded?
These homeowners’ are mortified by this experience, praying that they will never witness a crime and be put in the position of having to decide whether it will be worth the next x amount of years of their lives to report it. These homeowners’ deserve to be able to move on with their lives without this fear. They have the right to protect the rights of their children and their children’s children. By the courts ignoring the culpability of this bank and others, we are sending a message to the American public that our laws mean nothing. Awarding equity in this case would be the equivalent awarding the arsonist. Signing your name in front of a notary will become a joke. What would necessitate this action if it doesn’t matter? This case has the power to further muddy the waters of an already outrageous situation; or it has the power to put the banks on notice that this will not be tolerated. These homeowners’ only crime was that they fell one month behind in their mortgage; it was the unethical actions of all banking representatives involved that have cost these homeowners’ many years of their lives and they may never recover from the damage that this case has caused in their lives.