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Ibanez Redux - 10 Years Later, Wells Fargo Is Seeking To Take The LaRace Family Home Again on July 03, 2018

  • July 03, 2018 Update: Unfortunately, our Motion to enjoin the auction was not successful, and the auction took place. However, this may be a Pyrrhic victory for Wells Fargo, as we still have a complaint filed which will need be litigated. Meaning that despite the purported auction, no transfer of possession will take place. We intend on vigorously litigating this matter, and will keep you updated as this case progresses [to the extent allowed by ethical rules].
     
  • June 29, 2018 Update - The Firm filed an emergency Motion for Temporary Restraining Order with Memorandum of Law in Support, along with the LaRaces' 32 page verified complaint, and attached Exhibits A-Z. at the Massachusetts Land Court. Hearing is set down for Tuesday July 03, 2018 at 9:30 am

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This Firm "cut its teeth" in its pro bono representation of the LaRace family before the Land Court, and in the National precedent setting case, U.S. Bank Nat'l Ass'n v. Ibanez 458 Mass. 637 (Mass SJC 2011).

Indeed, the case became known nationally as simply "Ibanez", or "the Ibanez case", or in Massachusetts as "the Ibanez problem." [relating to title to real property]

U.S. Bank v. Ibanez, was actually the consolidation of two land court cases,. "Ibanez" was a landmark ruling, as the decision represented the first time that issues related to mortgage "securitization 'were truly examined by a state supreme court. Indeed, the SJC undertook an extensive "deep dive" into the specifics of the Land Court Judge Keith Long's comprehensive findings. Judge Long has never received the credit that he richly deserves for the exacting examination of Massachusetts State law he made in his ruling.

This Firm was privileged to have been tasked with the defense of Judge Long's Land Court ruling before the Massachusetts Supreme Judicial Court (“SJC”)

The case represented my first ever Appeal and Appellate oral argument, and it occurred at Massachusetts’ highest judicial tribunal, hey why not just start at the very top.

The “Ibanez case," as the ruling became to be known, made national news for the findings reviewed by the SJC. This ruing also sent shock waves throughout the entire financial sector, as it had the potential to bring Wall Street to its knees. This Firm was quoted in a number of national [and international] publications, such as Reuters, and Reuters2; Bloomberg Businessweek, ; and the BBC, just to name a few. The decision also allowed us the privilege to be sought out by the Securities and Exchange Commission (SEC) to opine on issues relative to mortgage securitization, and by the Federal Housing Finance Agency [FHFA] to present at a four day seminar in Washington D.C. to educate the agency on issues relative to mortgage securitization, where the FHFA had taken over conservatorship of Fannie Mae and Freddie Mac.

Post Ibanez this firm has quietly continued to defend the LaRace family pro bono to keep them in their home. There has been more than one attempt made by Wells Fargo to begin a new foreclosure process against the LaRace family, however it was short circuited by this Firm filing two lawsuits spanning a period of almost eight years , which warded off these attempts.

Unfortunately, Wells Fargo [in its role as a purported “Trustee”. For the ABFC 2005-OPT 1 Trust, ABFC Asset Backed Certificates, Series 2005- OPT 1] has now scheduled another foreclosure auction sale of the LaRaces’ home on July 03, 2018, approximately ten (10) years after its first attempt to do so back in 2008.

After the Land Court ruling in their favor in 2008, and pending appeal, the LaRaces openly queried whether they should move back into the home. Yes, they were paralyzed with fear and fled the premises after the purported 2008 auction sale. The LaRaces were required to secure alternate housing for the better part of three (3) years while the appeal dragged on before the SJC.

After much discussion with the Firm, and our hesitancy to have them return, the LaRace family decided to move back into the house that was wrongfully sold out from under them in 2008. When they returned, they could not get in due to a “lock box” being placed on the front door by a Realtor.

This Firm made numerous inquiries to the real estate agency responsible for placing those locks on the door, all to no avail. The LaRaces were informed that they would never gain access to house that was not theirs The Firm informed this real estate agency, and in no uncertain terms, that the LaRaces had better be granted access to the premises, or face being on the wrong side of a lawsuit. The real estate agency yielded [as they must] and the LaRaces were granted the right to enter their family home. Once they opened the door, they stood silently in shock, mouths agape, at witnessing the total devastation of the interior and exterior of their property.

The “property management company” who “winterized” the premises, did such a haphazard and shoddy job "winterizing", that the “winterization resulted in cracking water pipes destroying the boiler, as well as never returning to inspect the inside of the premises which had one inch thick mold growing throughout much of the interior. Clearly the home was a disaster

This Firm also arranged for at least one individual to help [pro-bono] the LaRace’s remediate the premises in order to make it habitable again This Firm also was required to undertake an extensive battle with Wells Fargo to allow the utilities to be placed in the name of the LaRaces in order to restore badly needed heat and power to the home. In addition, the “winterization” resulted in an exterior “ball valve” located on the street to become cracked, and “leaking like a sieve”, endangering the entire neighborhood

All the while, the appeal before the SJC continued. The Firm was repeatedly chastised by many stating that there was no way such a small Firm could actually win an appeal against a law firm the size of K&L Gates, and that it would be best to cut our losses, before the inevitable defeat before the SJC.

However, the Ibanez case involved two consolidated appeals, where Mr. Ibanez was represented by Harvard Law legal services. During the pendency of Ibanez, this Firm attempted to reach out to Attorney Paul Collier many times in order to devise a consolidated strategy to defend these cases before the SJC. There was never any response to our repeated requests.

The SJC deemed that the two Appellees (Ibanez and LaRace) would split the allotted 15 minutes to argue, with each getting 7 ½ minutes. However 6 days prior to the oral argument, the Firm received a phone call from Attorney Collier explicating that he wanted to argue for 10 minutes, and wished for the Firm to yield its share of time. Clearly the Firm declined such suggestion, and openly queried why this was the first that we heard from Attorney Collier.

Mr. Ibanez’s house, unlike the LaRace family, was rental property, Harvard Law immediately filed litigation seeking to “cash in” of the Ibanez ruling, Ibanez v, U.S. Bank, N.A., et al., 856 F. Supp. 276 (2012). However, Harvard Law had no response to U.S. Bank’s defense that Mr. Ibanez previously selected to surrender the property in bankruptcy, and therefore the federal case was dismissed on “res judicata” grounds. If fact, with all due respect, this matter was wrongly decided, as the "surrender" remedy is solely available to the Trustee during the bankruptcy. Where a bankruptcy estate has been fully administered, and the case dismissed or discharged (after the Trustee's filing of no assets, or "abandonment", that surrender remedy is extinguished. Further, the bankruptcy court subject matter jurisdiction was limited as a result of Stern v. Marshall 564 U.S. 462 (2011)

The untold story is that the LaRace family has quietly held Wells Fargo at bay for almost eight years.

The property at issue was roughly valued at $140,000.00 at the time of the purported 2008 auction, and now is worth about $170,00/00. The legal fees associated with K&L Gates services as well as Hinshaw Culbertson, LLC [and others] involved with Wells Fargo's attempt to divest the LaRace family from this house are many multiples of the home’s value, yet Wells Fargo keeps coming, in a manner similar to the terminator.

We continue to stand by the LaRace family and will absolutely defend the title to their property, and this time it will be personal, you can "bank" on it! We do not shrink from competition, we thrive on it.

We will keep you updated on this story as events warrant