Update (7:51am EST 11/02/2012):
Wells Fargo and Carrington Mortgage Holdings, LLC, the servicer for Niko Black's home, contacted Huffington Post editors about this blog post on Thursday, November 1, 2012 claiming that the facts were wrong. "Both of the key premises of this article are factually incorrect," they wrote.
Wells Fargo's Communication Manager, Elise Wilkinson wrote:
1. There was no court ordered stay in place on the property in question at the time of the lockout. The former homeowner, Ms. Black, had previously obtained a stay, which expired after 30 days (on June 21, 2012). The expiration of the stay was in accordance with the bankruptcy code. The lockout took place on October 21, 2012, well after the expiration of the stay.2. Wells Fargo did not evict Ms. Black. All foreclosure and eviction decisions were made and managed by the servicer (Carrington Mortgage Services). Wells Fargo is the Trustee for a trust containing the loan on this property. As Trustee, we manage certain administrative matters and court documents are filed in our name as trustee. However, all foreclosure decisions are made by the servicer.
"This story is highly inaccurate. Please remove it or correct the facts as soon as possible," Wilkinson continues.
It's an odd claim to make since the motion for relief of stay was requested by attorneys for Wells Fargo in a court filing on June 14, 2012, according to attorneys for Niko Black.
I contacted Stephen Golden of Stephen R. Golden & Associates, the attorneys for Niko Black, and asked them to respond to the allegations.
According to a recent motion filed by Stephen R. Golden & Associates, Wells Fargo Bank, filed a Motion For Relief From The Automatic Stay Or For Order Confirming That The Automatic Stay Does Not Apply Under 11 U.S.C. 362(l), on June 14, 2012.
The request for relief from automatic stay was denied by Judge Theodor C. Albert, when Wells Fargo's attorney's failed appear in court for the hearing.
Here is the statement issued by Stephen R. Golden, in response to the claims above:
It is understandable that Wells Fargo wants to at this time to disavow all participation in the foreclosure and eviction proceedings.It is undisputed that Wells Fargo was the Plaintiff evicting Miss Black in the Unlawful Detainer proceedings. Furthermore, legal counsel for Wells Fargo, Jason Burris, was at the home of Miss Black and advised the Orange County Deputy Sheriffs at her home that she had no right to possession despite her Bankruptcy.
Secondly, Carrington Mortgage Servicers, as the loan servicer, is acting on behalf of Wells Fargo undoubtedly pursuant to a loan servicing agreement between these two entities. As trustee for the trust where Miss Black's loan was deposited, Wells Fargo is the purported legal holder of that loan. All actions on behalf of the trust regarding foreclosure on such loan would be the actions of Wells Fargo assuming any rights to do so in the first place.
In addition to the statement above, Stephen R. Golden & Associates said in a press release:
The law office is also aware that both Wells Fargo and Carrington Loan Servicing have contacted the media in an attempt to mitigate negative public opinion. While our law office will let the facts of the case speak for themselves in Federal Court, we are making public statements from Stephen R. Golden and Senior Attorney Thomas Freidman.Our office has received a vast amount of requests from the media for information regarding Miss Black, we will begin to post non confidential information on our website beginning tomorrow.
So, in response to the first claim, why did Wells Fargo or attorneys for Wells Fargo file a 44 page motion for relief of stay, seven days prior to what they were claiming was the expiration date - why not just let it run out?
As for the second claim, that Wells Fargo is not responsible for the eviction and that decisions concerning evictions fall on the servicer, "there is undeniable proof that the claim is false under the facts of this case," said Thomas Friedman, an Attorney with Golden & Associates. According to Friedman, who produced the documents to back up his statements, Sergeant Robert Sima, in a Declaration, dated October 29, 2012, submitted to the Bankruptcy Court, and signed under penalty of perjury, states "On August 27, 2012, the Orange County Sheriff's Department received a court ordered eviction and instructions from an attorney for Creditor Wells Fargo to conduct the eviction of Niko Black at 9581 Shannon Avenue, Garden Grove, California, 92841." Pretty clear, right? Then, on October 2, 2012, counsel for Wells Fargo sent a letter to the Orange County Sheriff's Department (attached to Sergeant Sima's Declaration), in which Wells Fargo's counsel instructs the Sheriff's Department to proceed with the eviction because "there is no automatic stay at this time".
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Original post:
Wells Fargo is once again at the center of controversy with help from the California Orange County Sheriff's Department. You may have read Martin Andelman's piece "Husband's Suicide Yesterday, Wells Fargo to Evict Wife Tomorrow Anyway" and my follow up, "Wells Fargo Gets Picked Up On Radar" outlining a myriad of Wells Fargo's missteps, abuses, and egregious behavior.
The latest example of Wells Fargo thumbing its nose at the courts and using law enforcement to carry out its dirty work is the case of Niko Black, a 37-year-old Mescalero Apache woman, suffering from a rare and terminal form of cancer.
According to the Orange County Weekly, on the morning of October 10, Orange County deputies broke down Niko Black's door despite a court order taped to it forbidding them to do so, put a gun in her face and crumpled up the court order. They then carried her out of the home in her wheel chair and left her on the sidewalk while they locked up her home. The deputies locked her medication and medical equipment in the house as well, denying her access to it.
Because I have a very aggressive form of cancer, every appointment, every day is crucial," she says. "I'm a person with a lower immune system. That's why all my nursing care, my physical therapy, my medical equipment, everything is set up for home care. This violates the Americans with Disabilities Act.
The eviction according to the OC Weekly and the law offices of Stephen R. Golden and Associates, was in violation of a court order.
"Wells Fargo filed a motion about an inch thick all the reasons why they should be allowed to evict me," Black told the OC Weekly. "The federal judge denied them and stated very clearly they are not to. The bank illegally acquired an unlawful detainer, an eviction, without due process. They did it with fraudulent paperwork."
The Sheriff's spin department went into overdrive on Tuesday, taking to the airwaves on the same station (KTLK-AM 1150) that originally broke the story, saying that it's standard protocol to enter a home during an eviction with weapons drawn. They also claim that no guns were pointed. A claim that Black refutes:
Sergeant Bob Sima puts a gun to my face, finger on the trigger, no safety and walks around me. There's no reason, except for to threaten my life, for an intimidation factor, to put a gun to my head.
The part about defying the court order seemed to have slipped their mind in the statement. Neither the Sheriff's department nor attorneys for Wells Fargo would return phone calls in regards to this post.
According to witnesses, Jason R. Burris, an attorney for Wells Fargo, with a full eleven months of experience, ordered deputies to ignore the federal order and forcibly remove Black from the home. They also broke windows and smashed a security camera placed over the front door.
Stephen R. Golden of Stephen R. Golden and Associates and a member of the HPN trusted attorneys network announced earlier this week that the firm would be taking on Black's case:
Miss Black was evicted and locked out of her Garden Grove home by the Orange County Sheriff's office in violation of a federal court order.
Niko is struggling with cancer and was granted the court order due to medical reasons by a federal judge. The Orange County Sheriff and Wells Fargo Bank chose to ignore the order and evict Miss Black anyway. The order issued by a federal bankruptcy judge was very clear in its language and was clearly ignored by the Sheriff and Wells Fargo Bank. Stephen R. Golden was retained "Pro Bono" and has set to work with an eight-person legal team to right the wrong.
Wells Fargo filed a motion in July to lift the stay that is automatically applied through a bankruptcy filing, but according to court documents didn't bother to show up in court, so the the motion was denied. Instead, Wells figured they'd go ahead with the eviction, sent some paperwork over to the Orange County Sheriff and the rest is history.
Theodor C. Albert, a Federal Bankruptcy Court Judge for the United States bankruptcy court in California, on October 18, ordered Wells Fargo and the Orange County Sheriff's department to appear in court, " to show cause why sanctions should not be imposed for violation of the automatic stay." The hearing is set for November 13. Let's see if they show up for this.
Thomas Friedman, a civil rights attorney at Stephen R. Golden Associates said in an interview:
We have no information at this time about any claimed 'standard operating procedure' within the Orange County Sherriff's Department. Second, we are currently more concerned with the clear, ongoing violation of Ms. Black's right to remain in her home, in accordance with the Bankruptcy Court's Order forbidding her removal, than we are in an unnecessary debate about applying standard procedure when dealing with severely disabled citizens. Isn't the answer to that clear? Finally, we have no objection where a police officer employs a reasonable standard operating procedure when the situation is 'standard.' But, if a police officer enters a home with his or her weapon drawn, and is faced with a disabled, ill, one-hundred pound female, in a wheelchair, holding an order that precludes the very act the police officer is engaged in, then, I would ask, should we be discussing standard operating procedure, or using good judgment?
Good question. When exactly did it become standard operating procedure to treat fellow human beings like they were standing (or sitting) in the way of business? More specifically, when did the OCSD amend its "Standard Operating Procedure" to include the willful ignorance of a federal court order regardless of a corporate entity's instruction -- especially when allegedly displayed in plain sight? And, when did law enforcement become enforcers rather than protectors?