HANA, MAUI – On Friday December 23 at 4 P.M., two days before Christmas, the Phillips-Tehiva Family of Hana, Maui, received notification of “criminal trespass” eviction from their home, located on property which has been in the Phillips Family for more than 100 years.
The action taken by Wells Fargo occurred after the Phillips-Tehiva Family filed a motion on Thursday, December 22 for a hearing to review the court’s eviction order (included as Attachment “B”).
“This 60(b) Motion is based on new evidence showing that Wells Fargo’s foreclosure was void because of an invalid assignment of the mortgage,” according to the attorney for Phillips-Tehiva, Arnold T. Phillips II (no relation). “A major issue is the fact that this was a securitized loan in which Wells Fargo violated the terms of the securitization agreement,” said Mr. Phillips.
The Note and the Mortgage on this loan were required to be transferred, assigned and delivered to the securitized trust vehicle by July 10, 2007 when the securitization deal closed.
However, the actual attempt to assign the loan occurred on June 24, 2010, which was three years too late.
Since the Assignment of the Phillips-Tehiva Mortgage was invalid and legally ineffective, the Power of Sale contained in the Mortgage could not have been transferred.
Therefore, Wells Fargo Bank, N.A. had no right to enforce the Mortgage.
The Phillips-Tehiva Family had attempted many times to pay the amounts requested by their lender, only to have the payments returned with a request for additional funds.
Furthermore, the day after accepting a modification application, the lender filed a surprise non-judicial foreclosure action.
The Phillips-Tehiva Family will seek an emergency stay of the egregious foreclosure ejectment criminal trespass action until February 7, 2012, when the motion is set for a hearing in Circuit Court of the Second Circuit, District Court of Hawaii, Hana District.
Arnold T. Phillips II is an attorney representing the Phillips-Tehiva Family of Hana, Maui. Reach him at ATP@atphillips.com