Saturday, March 17, 2012
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Michael Boyter uses a hand truck to bring a box of belongings down from the second floor of his home. Michael Boyter lost his spacious home in Bethel Island to foreclosure in September of 2011, and has been warned he may soon be evicted. He has a lawsuit pending saying the foreclosure is void because Wells Fargo Bank cannot prove they owned the note.
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Michael Boyter walked out of San Francisco's federal courthouse Friday encouraged that a judge had left the door open for him to continue a legal battle against the foreclosure of his Bethel Island home.
"I have a chance to keep fighting," he said in a heavy downpour. "Not only for me, but for the thousands of other families who are out here in the rain like this and are hurting."
U.S. District Court Judge Susan Illston dismissed his case - but gave him leave to amend it, basically encouraging him to gather more evidence and case law and refile.
"I'm struggling with the consequences if there were irregularities in the (foreclosure) transaction," the judge said in court.
Illston, known for her thorough research, said her ruling would lay out the points Boyter needs to better substantiate in a new filing.
"I'll put in the cases I've been reading," said the judge, who has presided over such high-profile cases as the BALCO sports-doping trial and Barry Bonds perjury trial.
Boyter's case may be less splashy, but it deals with concerns shared by many thousands of borrowers who lost their homes.
His lawsuit focuses on the types of paperwork problems uncovered in the nationwide robosigning scandal and in a February audit of San Francisco foreclosures that revealed numerous procedural missteps.
But California judges have not been sympathetic to homeowners like Boyter who say the wrong party foreclosed, or that the paperwork was botched.
"California courts in several cases have already said it doesn't make any difference" if there were such problems, Illston said in court, while adding that she is pondering some issues the case raises.
Lisa Sitkin, an attorney with Oakland's Housing & Economic Rights Advocates, which represents struggling homeowners and is not involved in Boyter's case, said the judge's ruling sounded encouraging.
"I would not say it's a ringing endorsement of (his) arguments, but it does keep the case alive," she said. "Depending on the specific issues she is inviting him to return with, it might be good for his side of things."
Just three days earlier, during another downpour, Contra Costa County deputies evicted Boyter while he bundled up his Chihuahua, ET, and frantically looked for his cat, Mimi.
Boyter, 61, had been expecting them for months, ever since the house was auctioned off on the county courthouse steps in September.
He contends the foreclosure was illegal because Wells Fargo Bank, NDeX West (a foreclosure-services company) and MERS (Mortgage Electronic Registration Systems, a massive database used by banks to facilitate buying and selling of mortgages) didn't file paperwork to prove they had a right to the mortgage. He also alleges they backdated some documents and committed notary-public fraud.
Wells, NDeX and MERS-CORP declined to comment.
In legal filings, they said Boyter was relying on discredited legal theories and the foreclosure was done properly.
Boyter filed suit in July and continued his legal battle even after the foreclosure took place, staying in the house until Tuesday.
"I feel like a man on Death Row," he said a week before the eviction as he packed his belongings.
Mortgage giant Fannie Mae, which repossessed the house for $180,600 at the foreclosure auction, ignored his pleas to rent it or be given more time, he said. Fannie Mae, which is not a party to the lawsuit, did not respond to requests for comment.
There is no question that Boyter fell behind on his mortgage in late 2010. He started receiving foreclosure notices in early 2011 and spent hours on the phone requesting a loan modification, he said.
"I got run around the post like a dog with a leash around the tree," he said. "It seemed pointless to talk to them because I kept getting the runaround."
"I have a chance to keep fighting," he said in a heavy downpour. "Not only for me, but for the thousands of other families who are out here in the rain like this and are hurting."
U.S. District Court Judge Susan Illston dismissed his case - but gave him leave to amend it, basically encouraging him to gather more evidence and case law and refile.
"I'm struggling with the consequences if there were irregularities in the (foreclosure) transaction," the judge said in court.
Illston, known for her thorough research, said her ruling would lay out the points Boyter needs to better substantiate in a new filing.
"I'll put in the cases I've been reading," said the judge, who has presided over such high-profile cases as the BALCO sports-doping trial and Barry Bonds perjury trial.
Boyter's case may be less splashy, but it deals with concerns shared by many thousands of borrowers who lost their homes.
His lawsuit focuses on the types of paperwork problems uncovered in the nationwide robosigning scandal and in a February audit of San Francisco foreclosures that revealed numerous procedural missteps.
But California judges have not been sympathetic to homeowners like Boyter who say the wrong party foreclosed, or that the paperwork was botched.
"California courts in several cases have already said it doesn't make any difference" if there were such problems, Illston said in court, while adding that she is pondering some issues the case raises.
Lisa Sitkin, an attorney with Oakland's Housing & Economic Rights Advocates, which represents struggling homeowners and is not involved in Boyter's case, said the judge's ruling sounded encouraging.
"I would not say it's a ringing endorsement of (his) arguments, but it does keep the case alive," she said. "Depending on the specific issues she is inviting him to return with, it might be good for his side of things."
Just three days earlier, during another downpour, Contra Costa County deputies evicted Boyter while he bundled up his Chihuahua, ET, and frantically looked for his cat, Mimi.
Boyter, 61, had been expecting them for months, ever since the house was auctioned off on the county courthouse steps in September.
He contends the foreclosure was illegal because Wells Fargo Bank, NDeX West (a foreclosure-services company) and MERS (Mortgage Electronic Registration Systems, a massive database used by banks to facilitate buying and selling of mortgages) didn't file paperwork to prove they had a right to the mortgage. He also alleges they backdated some documents and committed notary-public fraud.
Wells, NDeX and MERS-CORP declined to comment.
In legal filings, they said Boyter was relying on discredited legal theories and the foreclosure was done properly.
Boyter filed suit in July and continued his legal battle even after the foreclosure took place, staying in the house until Tuesday.
"I feel like a man on Death Row," he said a week before the eviction as he packed his belongings.
Mortgage giant Fannie Mae, which repossessed the house for $180,600 at the foreclosure auction, ignored his pleas to rent it or be given more time, he said. Fannie Mae, which is not a party to the lawsuit, did not respond to requests for comment.
There is no question that Boyter fell behind on his mortgage in late 2010. He started receiving foreclosure notices in early 2011 and spent hours on the phone requesting a loan modification, he said.
"I got run around the post like a dog with a leash around the tree," he said. "It seemed pointless to talk to them because I kept getting the runaround."
Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/17/BUMD1NGUO6.DTL#ixzz1pRNENQQt
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