Part 2 – How to Challenge an Assignment of Mortgage by Glenn Augenstein continued from Part 1 on DeadlyClear.
Glenn Augenstein, a seasoned researcher and expert witness in foreclosure fraud, has taken the time to research the ancient word “seisin” which gives us better insight into what the mortgage document was meant to convey.
Recent Case Law
Wells Fargo v Erobobo
On this I must first comment that standing, or lack thereof, is considered differently in some jurisdictions than it is others. Some treat it as an affirmative defense that must be pleaded timely or it is considered waived. “Because the issue of standing is distinct from the issue of subject-matter jurisdiction and, thus, can be waived, we hold that an appellate court cannot, on its own motion, resolve an appeal based upon a lack of standing before the trial court.” Harrison v. Leach, 323S.W.3d 702 (Ky. 2010) – as pointed out by my attorneys.
Others treat it as a brother to jurisdiction, which cannot be waived, and consider being so closely related that standing, or a lack thereof, cannot be waived and can be raised for the first time on appeal. This information is public and can be found on the Internet.
The recent Wells Fargo Bank, N.A. v. Erobobo of Supreme Court Kings County NY engaged in a brief discussion in re standing, and how it related to the instant case. “Many decisions treat the question of whether the Plaintiff in a foreclosure action owns the note and mortgage as if it were a question of standing and governed by CPLR 3211(e).” Citigroup Global Markets Realty Corp. v. Randolph Bowling, 25 Misc 3d 1244(A), 906 N.Y.S.2d 778 (Sup. Ct. Kings Cty 2009); Federal Natl. Mtge. Assn. v. Youkelsone, 303 AD2d 546, 546—547 (2d Dept 2003); Nat’l Mtge. Consultants v. Elizaitis, 23 AD3d 630, 631 (2d Dept 2005); Wells Fargo Bank, N.A. v. Marchione, 2009 NY Slip Op 7624, (2d Dept 2009).
“However, Plaintiff’s ownership of the note is not an issue of standing but an element of its cause of action which it must plead and prove.” Wells Fargo Bank, N.A. v. Erobobo, 042913 NYMISC, 2013-50675.
Not to be deterred plaintiff had attempted a bit of misdirection to shift the argument to one of standing. “Plaintiff argues that Defendant’s claim that Plaintiff does not own the note and mortgage amounts to a standing argument, and because Defendant failed to raise standing in his answer as an affirmative defense or pre answer motion, he cannot do so now.” ibid.
This was a well-played “burden of proof” tactic, as the Erobobo general denial was considered sufficient to place the burden on Wells Fargo. The Erobobo Court went on to offer an excellent analysis of the relevant Pooling and Servicing Agreement (PSA) that alleged to own/hold the Erobobo note and mortgage.
“Section 2.01, subsection 1 of the PSA requires that transfer and assignment of mortgages must be effected by hand delivery, for deposit with the Trustee with the original note endorsed in blank.
“Section 2.05 of the PSA requires that the Depositor transfer all right, title, interest in the mortgages to the Trustee, on behalf of the trust, as of the Closing Date. The Closing Date as provided in the PSA is November 14, 2006.
“Option One assigned Defendant’s mortgage loan to the Plaintiff, as the Trustee, on July 15, 2008, approximately eighteen months after the trust had closed.” ibid .
“Under New York Trust Law, every sale, conveyance or other act of the trust in contravention of the trust is void. EPTL §7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” ibid
Defendant Erobobo argued that in addition to timely conveyance, pursuant to the strict and regimented requirements in Section 2.01 and 2.05, conveyance to the trust must be by a specific party, the Depositor. In Erobobo the “The assignment of the note and mortgage from Option One rather than from the Depositor ABFC violates section 2.01 of the PSA which requires that the Depositor deliver to and deposit the original note, mortgage and assignments to the Trustee.”
“The assignment of the Defendant’s note and mortgage, having not been assigned from the Depositor to the Trust, is therefore void as in being in contravention of the PSA.The evidence submitted by Defendant that the note was acquired after the closing date and that assignment was not made by the Depositor, is sufficient to raise questions of fact as to whether the Plaintiff owns the note and mortgage, and precludes granting Plaintiff summary judgment.” ibid
Standing to challenge an assignment of mortgage was not a central issue in Well Fargo v Erobobo. However, the court made a very significant ruling in respect of the requirements of the PSA, and the application of NY EPTL 7-2.4
It is important to note the ruling in Erobobo is merely interlocutory. At some point there may be further deliberations. Until a final order is issued the case remains on the Supreme Court of Kings County NY active docket. No appeal can be taken from an interlocutory order. The entire interlocutory order is available here.
In re Saldivar
Approximately 5.5 weeks after the Erobobo interlocutory order a Texas Bankruptcy Case, In re Saldivar, cited to the case.
“As a threshold matter, the court must first address Chase and Deutsche Bank’s assertion that the Saldivars lack standing to challenge the validity of the assignment of mortgage to the Trust.” In re Saldivar, Case No: 11-10689.
The Saldivar court begins its discussion on Saldivar’s standing to challenge the validity of the assignment stating “’A third party generally lacks standing to challenge the validity of an assignment.’ Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C., et al., 981 N.E.2d 1, 7 (Ill. App. Ct. 2012).” ibid
It then considers whether the Trustee’s acts in contravention to the PSA, and NY EPTL 7-2.4, are ultra vires, and merely voidable, but not void ab initio.
Finally the Saldivar Court states, “Based on the Erobobo decision and the plain language of N.Y. Est. Powers & Trusts Law § 7-2.4, the Court finds that under New York law, assignment of the Saldivars’ Note after the start up day is void ab initio. As such, none of the Saldivars’ claims will be dismissed for lack of standing.” In Re Saldivar, Case No: 11-10689.
There are likely to be further deliberations in In Re Saldivar. The entire In Re Saldivar opinion in is available here:
GLASKI v BofA (PUBLISHED Version)
This case seems to be a “shot heard round world” based on the amount of attention it has received since issue, and subsequent publication. There are a number of nuggets.
“We conclude that a borrower may challenge the securitized trust’s chain of ownership by alleging the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust’s closing date. Transfers that violate the terms of the trust instrument are void under New York trust law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement.” Glaski v. Bank of America, National Association, F064556.
I am particularly fond of footnote 6 in which the court states, “Because the trial court took judicial notice of the existence and recordation of the assignment earlier in the litigation, we too will consider the assignment, but will not presume the matters stated therein are true. (See pt. IV.B, post.) For instance, we will not assume that JP Morgan actually held any interests that it could assign to LaSalle Bank. (See Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 [taking judicial notice of a recorded assignment does not establish assignee’s ownership of deed of trust].)” ibid
Here the Glaski court is unwilling to extend a presumption of good faith in respect of the validity or veracity of the recorded document. This seems something of a sea change. By refusing to presume good faith the court is unwilling to merely accept as true whatever documents BANA may wave under the Court’s nose. It appears the veracity can be challenged, and must needs be proven.
Another good nugget, “Despite the foregoing cases, we will join those courts that have read the New York statute literally. We recognize that a literal reading and application of the statute may not always be appropriate because, in some contexts, a literal reading might defeat the statutory purpose by harming, rather than protecting, the beneficiaries of the trust. In this case, however, we believe applying the statute to void the attempted transfer is justified because it protects the beneficiaries of the WaMu Securitized Trust from the potential adverse tax consequence of the trust losing its status as a REMIC trust under the Internal Revenue Code. Because the literal interpretation furthers the statutory purpose, we join the position stated by a New York court approximately two months ago:
“Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” (Wells Fargo Bank, N.A. v. Erobobo (Apr. 29, 2013) 39 Misc.3d 1220(A), 2013 WL 1831799, slip opn. p. 8; see Levitin & Twomey, Mortgage Servicing, supra, 28 Yale J. on Reg. at p. 14, fn. 35 [under New York law, any transfer to the trust in contravention of the trust documents is void].)” id
The above section seems to have as its intent protection of the bond or certificate holders, the beneficiaries, from adverse tax consequences that could result from the trustee violating the governing trust documents and losing REMIC tax status.
This position is significantly different from the oft repeated lines put forward by bank PR firms of “The homeowner just wants a free house.” There may be further deliberations on Glaski.
The entire Glaski v. Bank of America, National Association opinion, post publication, is available here.
Choice of Law Provision
Upon satisfying the court one has standing to challenge the invalidity of an assignment, or substitution of trustee, or conveyance, where do you go next? The above cases of 
Erobobo, In re Saldivar, and Glaski all tie in New York Estate Powers and Trust Law (NY EPTL). Several sections, but particularly §7-2.4. If you’re in Ohio, or Nebraska, gaining that standing may not help in having the court apply NY EPTL. Enter the choice of law provision (CLP).
If your battling a party different than the originating lender it is likely your loan has been securitized into a mortgage backed security trust. The PSA is the document that expresses the duties, authorities, and limits and disabilities of the trustee.
In almost all the PSAs I’ve reviewed there is a section, usually in Article 11.04 titled “Governing Law; Jurisdiction.” The language in the first sentence or two usually reads something like:
“This Agreement shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.”
It appears the Ohio court is going to be entirely reticent at now having to become knowledgeable in regard to New York law, and particularly NY EPTL. But a lifesaver has been thrown out to us on the frigid, choppy waters. One of the cases referenced and cited to above, Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C., has some very beneficial language in respect of a CLP.
“We are cognizant that we have already concluded that defendants are not entitled to rely on the PSA’s choice-of-law provision; however, we do not view the application of New York law under these circumstances as an invocation by defendants. Quite simply, plaintiff was a party to a transaction that took place under and contained a choice-of-law provision expressly contemplating the application of New York law.”
Continuing, “In any event, by participating in transactions under the PSA, it is plaintiff’s actions, rather than defendants’, that make New York law applicable to this issue.” Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012).
If you scour some legal databases for cases in your jurisdiction it is likely you’ll find some beneficial appellate level case law in respect of CLP. While CLP isn’t frequently discussed it is not a new, unproven legal theory. It has substantial history. With such you should be able to move your court to rule in accordance with New York law.
Bassman continues with this other nugget relating more directly to standing to challenge an assignment, “Therefore, a borrower generally lacks standing to challenge the assignment. Id. at 736. However, a borrower may raise a defense to an assignment that would render it “absolutely invalid,” that is, void. Id. at 735-36; Tri-Cities Construction, Inc. v. American National Insurance Co., 523 S.W.2d 426, 430 (Tex. Civ. App. 1975) (“The law is settled that the obligors of a claim may defend the suit brought thereon on any ground which renders the assignment void, but may not defend on any ground which renders the assignment voidable only, because the only interest or right which an obligor of a claim has in the instrument of 
assignment is to insure himself that he will not have to pay the same claim twice.”);
See also: Greene v. Reed, 486 P.2d 222, 224 (Ariz.Ct.App. 1971); cf. Young v. Chicago Federal Savings & Loan Ass’n, 180 Ill.App.3d 280, 284 (1989) (“If a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred.” (Emphasis added.) (Internal quotation marks omitted.)); O’Neill v. De Laney, 92 Ill.App.3d 292, 297 (1980) (holding that third party could challenge validity of a contract where she established a “significant and direct interest” in its validity) [emphasis added]. Ibid
Back Dating an AOM, or Substitution of Trustee
With livery of seisin it was the ceremony (and witnesses) that created the conveyance. With the Statute of Frauds it was the writing (and witnesses) that created the conveyance. These were both “present tense” transactions.
Why have we seen so many back dated, past tense, writings in the past several years? Can a present tense transaction be converted to one that is past tense?
The 1st Circuit Court of Appeals in Juarez v Select Portfolio, No. 11-2431, February 12, 2013, handed down what many believed to be a new holding in saying “In this case, even a perfunctory scrutiny of the ‘Corporate Assignment of Mortgage’ attached by Juárez to her amended complaint reveals that we are before a document that was executed after the foreclosure and that it purports to reference, by virtue of its heading, a pre-foreclosure assignment. Specifically, the heading reads ‘Date of Assignment: June 13, 2007,’ and it states that the document was executed ‘[o]n October 16, 2008.’ However, nothing in the document indicates that it is confirmatory of an assignment.”
This section above, and surrounding, was interpreted as meaning back dating of an Assignment of Mortgage was impermissible, and that this was a new holding. I respectfully beg to differ.
Doing some random research in late 2012 I came across a nice 6th Circuit case from 1962. It seems our jurists at that time had more awareness in respect of the history of conveyance of ownership and interests in real property. They weren’t ambiguous about it. 
While it appears more recently to have been forgotten, it is long standing and well established that conveyances of interests in, or ownership of, land and real estate are present tense transactions only. “Land cannot be transferred except by writing and necessarily is in the present tense. The writing itself is the transfer when executed [emphasis added].” Belcher v Elliot, 312 F.2d 245 (6th Cir. 1962).
Consider in the alternative an analysis by an attorney with whom I consult:
“Here, the purported ‘assignment’ would need to be recorded on or about February 2, 2010, but the actual assignment had not yet occurred, making the task a legal impossibility. The soonest the June 11, 2010 ‘assignment’ could have been recorded would be June 11, 2010 – the day it allegedly occurred. Thus, the recording could never be timely completed to effectuate a February 2, 2010 transfer date. KRS § 382.360(3), supra. (The backdating of a transfer of interest in real property raises other issues as well.
For example, if A owns Blackacre on June 1, 2010 when B is seriously injured on the land due to a latent defect, but A transfers his interest in Blackacre on June 11, 2010, backdating the transfer to be ‘effective’ as of February 2, 2010, does A escape liability for the injuries incurred by B?
“In the case sub judice, the purported ‘assignment’ executed June 11, 2010 is a ruse designed solely to hoodwink the Court and party-litigants. The backdated mortgage assignment was executed several months after this lawsuit was filed; however, it unlawfully purports to be ‘effective’ at some date in the past. This kind of assignment, if considered lawful, would wreak havoc on real property law, paving the way for fraudulent 
takings, the dismantling of recording statutes, and a breach of the public’s trust that matters of public record can be relied upon as what is of public record on February 2, 2010, for example – more than thirty days after Plaintiff allegedly ‘obtained’ an interest in the mortgage.
For example, a person examining the public records on February 2, 2010 simply would not know that the ‘future’ June 11, 2010 ‘back dated assignment’ existed. Why? Because June 11, 2010 had not yet happened, as had not the back dated assignment. The record would be silent about any alleged ownership interest, even though the purported assignment would have to have been filed by February 2, 2010. On February 2, 2010, the purported assignment did not exist – and it certainly does not ‘now exist’ as of February 2, 2010 just because Plaintiff says so.”
Why You Might Want to Pass in Asserting Standing to Raise Challenges to an AOM, or a Substitution of Trustee, or Conveyance
Bassman (previously referenced) informs us of some of the additional difficulties of asserting, and proving, standing to challenge an assignment. “To have standing, a party must have suffered an injury to a legally cognizable interest.” Commercial Credit Loans, Inc. v. Espinoza, 293 Ill.App.3d 923, 929 (1997).” Bank of American Nat’l Assoc. v. Bassman FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct. 2012).
Similar is expressed in many state constitutions that have an open courts doctrine. The concept of standing is implicit in the Kentucky Constitution, Bill of Rights §14 which states, in relevant part:
‘All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay’ [emphasis added].
Implicit in the open courts provision of Kentucky’s Constitution is a restraint upon the courts to the adjudication of actual justiciable controversies. Our Kentucky state Constitution reinforces this restraint within §112(5), which states, in relevant part:
The circuit court shall have original jurisdiction of all justiciable causes not vested in some other court [emphasis added].
These provisions limit access to the courts to real parties in interest suffering an “injury.” The open courts provision expresses that courts are to be open for “justiciable causes”. A “justiciable cause” has been defined by the Supreme Court of Kentucky as a “controversy in which a present and fixed claim of right is asserted against one who has an interest in contesting it.” West v. Commonwealth, Ky., 887 S.W.2d 338, 341 (Ky. [1994]).
The Kentucky Constitution places substantial restrictions on the power of judicial intervention by limiting its availability to those real parties in interest who have suffered an “injury” and pled a “justiciable controversy.” The limitation, per my attorney, is placed upon the power of judicial authority via Section 14 of the Kentucky Constitution is a limitation upon the court’s subject-matter jurisdiction, and as such, it cannot be waived. Cann v. Howard, 850 S.W.2d 57, 59 (Ky. App. [1993]).
When presenting a challenge to a void AOM or conveyance are these the kinds of arguments you want to force yourself to make, and win? Right from the get go? There may be an easier way.
The Contractual Obligation to Defend Generally the Title, or Keep It Simple Silly
The simpler we make this for our courts the more likely we’ll obtain our desired result; a fair proceeding, equal and fair application of the rules of procedure, the rules of evidence, terminating in justice.
Now, pull out, or up, your mortgage or deed of trust. Find the following language:
“BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.”
Over several years I’ve looked at more mortgages than I care to admit. Given a choice between knowing any of this stuff and having a lit cigar stuck up my nose I’d opt for the latter. I used to get paid to start fires without matches. I’d rather be doing that still. The last five (5) years are not what I had planned. Yet I am here.
Did you see the part that contractually obligates the borrower to “defend generally the title to the Property against all claims and demands?” Maybe, you don’t need to assert standing to challenge the validity of an assignment after all? To this layman it looks to be “Contract Law 101.” And even better it is found in a seminal document; the mortgage or DOT.
Since reading my own again several months ago (you can’t EVER read your own documents, your own pleadings, motions and other papers, the pleadings, motions and other papers of adverse party, or the rules [Read the Rules. Read the Rules. Read 
the Rules] too many times), and noticing that language, I’ve reviewed several hundred more mortgages and DOTs. Thus far I’ve found the language in every one I’ve reviewed. I hesitate to say it is universal, but I’m hopeful.
Every example I’ve seen has always started with “BORROWER COVENANTS” in all caps (that makes it a bit easier to find). I’ve seen it in different places, on different pages, but thus far it has been in every one I’ve reviewed.
Imagine this conversation.
Homeowner: Your Honor, I dispute the validity of the assignment.
Court: You’re a non-party to the assignment. You don’t have standing to challenge it.
Homeowner: I’m not asserting standing to challenge the assignment, Your Honor. I’m contractually obligated to defend generally the title to the Property against all claims and demands.
Court: Are you trying to get a free house?
Homeowner: No, Your Honor. My contractual obligation, expressed in the mortgage on page X, par. Y, is to protect the interests of the holder/owner/investor/real party in interest. It appears that is not the party before this court.
Court: Well, I don’t think that is what it means.
Homeowner: It looks pretty unambiguous to me, Your Honor. Even if it is ambiguous, Your Honor, the doctrine of “contra proferentem” is applicable; ambiguities are to be construed unfavorably to the drafter. I didn’t draft the mortgage…
From this point, fulfilling a contractual obligation to protect the interests of the proper party, connecting the dots that lead to the PSA, a CLP, and NY EPTL may become considerably easier.
* Disclaimer: This is research and personal experience expressed and shared for the purpose of thought and conversation. Nothing in this post should be construed as legal advice or practicing law. If you need legal advice you should consult an attorney.
Thank you Glenn Augenstein for a terrific post.
Part 2 – How to Challenge an Assignment of Mortgage is one of our most popular posts. The author has been a terrific researcher and paralegal assistant from whom we have all benefited.
Glenn recently sustained a serious back injury and has still helped us through his own pain of foreclosure. Please donate to Glenn and help him maintain his bills and his home while he recovers.
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i SECOND THAT! Thank you Glenn Augenstein for a terrific post. This is wonderful!
Thank You Glenn for the AWESOME WORK! 🙂 Done better than anything I’ve seen lately! 🙂
Another NY WIN for the Bulldog Law Group. Call 631.661.1100 if your loan was with IndyMac, One West, Washington Mutual, Option One, New Century, or any Alleged Trustee. The consultation is free – and if we can’t help – you will know where you stand!
Click to access 51003079520095SCIV.pdf
I h/ “ASSIGNMENT OF DEED OF TRUST” Dated 04/22/2009 on which Famous ROBOSIGNER ROGER STTOTS acting as V.P. for MERS and Nominee for IndyMac purports to transfer, assign all interest , along w/ NOTE(S) to IndyMac Fad Bank. Notwithstanding that INDYMAC FEDERAL BANK ceased to exist over 30 days prior on 03/19/2009!!! It is executed by famous ROBOSIGNER MAI THAO at WILLIAMSON COUNTY, TEXAS!! ONEWEST turned over Servicing Rights to OCWEN ON 11/15/2013. WE ARE CHALLENGING THEIR RIGHT TO COLLEC ON ALLEGED DEBT!
PLEASE HELP US!
(hoping this helps as late as it’s presented), Marssummer, You need to research the most obvious. MERS was and is an abomination created by the megabanks(&Fanny/Freddie/Ginnymae/FHA) for the expeditious ‘re-sale of notes to MBS’ by their initial holders (from the original mortgagees/DOT Trustees), while NOT having to constantly record assignments every time Your Note (like a dollar bill) changes hands. MERS has saved the megabanks hundreds of billions in mere doc stamp fees (while depriving Your local clerk of court of those same funds), HOWEVER….search: “MERS 101″, & the Deposition of William Hultman, Secretary/Treasurer in the Upke Case….You will learn that MERS NEVER Accepts Assignment of or Authority over NOTES, Ever, period, no exeception. They have no system by way of accepting possession, recording or maintaining them. IF as You assert, a document states that THEY (MERS) are delegating/assigning/transferring ‘Interest[s]” in a NOTE, in a document, it’s FRAUD! Do some digging and find out I speak the truth. We’re the folks that pierced the (not so corporate) veil on “America’s Wholesale Lender” in Florida (which appeared on both our Note & Mortgage). We WILL be getting our house back (& likely refunding of all moneys ever accepted by the ‘lender’), as they committed FRAUD with a VOID ‘contract’. Non-Entity’s can not engage contracts. Non-entity’s are VOID as well; they don’t exist (LIKE AWL). In Your MERS Case (like OZ), You need to Look behind the Curtain and find out whats really going on. FYI, MERS now is nominee, for mortgagee on over 85,000,000 mortgages in America.
Another way to challenge a MERS assignment in some cases is with the statute of frauds. Look on your assignment to see whether MERS discloses for whom (in whose behalf) they are “assigning” interest. If no other entity is named the assignment doesn’t fall within the statute of frauds and is unenforceable. An agent can’t assign interest in real property in its individual capacity only on behalf of the “lender”.
I h/ “ASSIGNMENT OF DEED OF TRUST” Dated 04/22/2009 on which Famous ROBOSIGNER ROGER STTOTS acting as V.P. for MERS and Nominee for IndyMac purports to transfer, assign all interest , along w/ NOTE(S) to IndyMac Fad Bank. Notwithstanding that INDYMAC FEDERAL BANK ceased to exist over 30 days prior on 03/19/2009!!! It is executed by famous ROBOSIGNER MAI THAO at WILLIAMSON COUNTY, TEXAS!! The Doc was Recorded at the Los Angeles County Registrar’s/ Recorders Office on May 2009!! ONEWEST turned over Servicing Rights to OCWEN ON 11/15/2013. WE ARE CHALLENGING THEIR RIGHT TO COLLEC ON ALLEGED DEBT! ! Our home is in Los Angeles County, California, as was the lively INDYMAC FED BANK Address and place of business- So what is it doing at Texas- Of course we know
PLEASE HELP US!
Thank you Glenn for your diligent work, and DC for publishing. I have been researching this very matter re Glaski and Erobobo, and you have dug so much further. This will help my work, and that of many others, immensely.
Very well written and quite educational. Thank you!
Most of us who are having problem defending our homes come from Fannie Mae. We know our loan was securitized finding our trust is impossible. Fannie Mae comes later to state it bought the home at foreclosure and evicts homeowners. Assignment is usually in the originator/MERS name. Any thought?
Pull up Fannie and Freddies Shell Game, by Shawn Newman, Freddie owns nothing Freddie is a shell game just like MERS They had a policy in place “NEVER” to receive the notes. It would appear to me that after cashing the notes allegedly into to trust the notes can not appear somewhere else of it is securities fraud. And fraud and fraud and more fraud.
Excellent post, Glenn. There is one factual error, however.
Interlocutory orders in NY are appealable. I know, because I’ve made a bunch of them (won some, lost some). In fact I had a mortgage case against WF a couple of years ago, and there were several motions for summary judgment. Every one of them was appealable. It wasn’t until WF actually lost one that it appealed. Fortunately, I won on the appeal.
good to hear an Appeal won against these crooks. One case at a time.
(LL Comment) Neil, I know you have been harping on this quite valid aspect of the “loan”. And I agree. It can and should be able to be demonstrated before any reasonable Jurist, admittedly not easily. But I think a larger issue or concept, which in effect proves or bolsters your theory(s) is or can be found in Benedict v. Ratner. The key designation of “Dominion Reserved” by SC Judge Brandeis fits very well with your line of argument and in my mind (limited as it is..) would seem to complete the picture in any reasonable Jurist’s mind. Here is the seminal quote from that decision:
“But it is [268 U.S. 353, 363] not true that the rule stated above and invoked by the receiver is either based upon or delimited by the doctrine of ostensible ownership. It rests not upon seeming ownership because of possession retained, but upon a lack of ownership because of dominion reserved. It does not raise a presumption of fraud. It imputes fraud conclusively because of the reservation of dominion inconsistent with the effective disposition of title and creation of a lien.”
In effect, what US Supreme Court Judge Brandeis is saying is that, no lien or title was created by the creditor because he/she allowed another entity to “act” as creditor or to manipulate the funds associated with proper title (lien).
So it goes in the cases wherein you defend, it must be that the lienor (creditor, et al., or pick your flavor of Trustee) must have had good title, which they did not nor could not have or obtain. The Trust agreements prove that.
I encourage all LL (DC) readers to closely examine Judge Brandeis’ opinion and reversal in favor of the debtor. It can be read here:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=268&invol=353
It’s not easy reading (circ. 1925), but it is as relevant today as it was then. A cogent commentary on this seminal decision is also worth reading at:
http://blogs.reuters.com/christopher-whalen/2011/05/17/putting-trust-back-in-american-housing-finance/#comments
Keep up the good and right fight.
Glenn Augenstein HA HA HA your humor shines through. WHERE”s THE BEEFNOTE? LOL !!! love it And yes, so extremely helpful.
Very good points. Also see http://dockets.justia.com/docket/texas/txsdce/4:2011cv04416/939908
I’d come across that passage in my DOT in which the borrower warrants to defend title and suspected there was some power in it. The ambiguity is only in the subtext, i.e., the purpose for the lender’s benefit would be to prevent encumbrance of title by other types of liens, not their own. The language itself is straightforward and encompassing. We contracted to defend title. Period. A special thanks for the ambiguity doctrine of contra proferentem.
Hello Glenn, have you ever heard of a Corporate Assignment of the Deed of Trust that was “signed” 6 months prior to the creation of the trust? It was entered into the recorders office over 4 years after the purported signing date. It’s another Bethany Hood document. I have been in court going on seven years now and am in Pro Per.
Thank you for your good work.
Norman,
Think about your question from the point of view of a smartass. Or, to put a finer point on it, think about it from my point of view (yes, I just owned that).
How can something that does exist (presumptively your DOT) be assigned to an entity that doesn’t exist (a trust that has not yet sprung into existence)? Can an entity that doesn’t exist own anything?
Norman, I have to ask this. In what state do you reside and what is the statute of limitations there for promissory notes.
In April of this year at the hearing for my 4th foreclosure I raised the defense of Colorado’s 6 year SOL and after several hearings and a final written brief by both parties the Court declared that the note was no longer enforceable and that the DOT had been extinguished by law. Shortly thereafter the Court denied the Banks motion for reconsideration.
Tomorrow morning I am filing my petition for Quite Title and there is not one entity that can claim to hold a superior Title to Mine……… Attached to the petition is a civil complaint for numerous (9 to be exact) causes of action against 12 Defendants who can not now claim any rights in or to my property although they have not stopped trying to collect on a debt that no longer exists.
This article contains so much of what I’ve been saying for years now and I am grateful to those who have seen to it being published, it reinforces my confidence which has been beaten back so many times over the last 8 years that I had almost lost hope.
Thank you all.
DLC
I am trying this argument on a morthage that was secured at time of purchase, but the first is attempting to continue a foreclosure. The second acellerated the loan maturity, but did nothing for 10 years. Can you reference to me your case numbers so that I can do more research in my filings?
Thanks!
Prior to my loan recording, in the close of escrow, I inserted into the process a condition that Wells Fargo Bank and/or its assigns not be the servicer of my mortgage. I did this for cause because Wells Fargo Mortgage on the previous loan “force an insurance policy” on us regardless of knowledge that the property was already properly covered. I was not given the policy though I was paying for it and was not made aware that the company was licensed to do business in Hawaii. I was not given the terms of coverage and Wells Fargo Mortgage refused to cancel until the policy term would expire. It was “for cause” that I inserted the condition for service with in the closing documents with the mortgage originator present. Wells Fargo Mortgage was again assigned the mortgage and then participated fully in the MBS/fiasco which not only caused the global economic meltdown and also went to defeat the incomes we had qualified for the loan with and also progressed toward foreclosure. Additionally where we were amortizing the loan at greater than agreed value we arrived at a position that Wells Fargo Mortgage would not refinance because of DTI ratio was to high and we were negative by more than several hundred dollars monthly. Asset value has also been defeated as the house will not longer stand up to the last appraisal value. There are additional minus points present, including the stress on our lives which have been caused by the criminal behavior of Wells Fargo Bank and its assigns.
What kind of lawyers would best suit my needs?
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Wow, you are a blessing to me at this moment and thanks. I have an assignment the has Tiffany Bit so I a known Robo-Signer on it and some unknown Rebecca Higley both listed as Assistant Secretaries of Idaho. Nether are related to my server Nationwide Advantage Mortgage Company. I think from reading your blog, that I just might have a leg to stand on. I hold the original Warranty Deed and it’s recorded as an agreement of acceptance party as well in the Deed’s office. I am fighting an eviction. So, I am going to file a motion to set aside the judgement, if that’s the proper procedure. Then do a motion to have the Superior Court hear my argument in reference of the wrongful foreclosure, since there is point blank a fraudulent assignment on file to complete the foreclosure. Matter there’s a total of three related to Nationwide Advantages Mortgage Company. Once again thanks.
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I have been researching the internet regarding my foreclosure situation. The original loan was with Countrywide Financial which was acquired by Bank of America. I have not paid my mortgage for roughly 4 years since I lost my job in October 2009. On three occasions Bank of America sent me Application Package for refinancing or loan modification. I have been assigned to three so called Relationship Manager for contact purposes. I did not receive any communication as to what happened to my application. The last relationship manager out of Calabasas, California office albeit the old Countrywide Offices when I called the phone number and all I get is ” the number I was trying to reach the mailbox is full, please try again later.”
My non-performing loan was transferred to Nationstar Mortgage LLC in 2011. The last thing I know I received a letter from Nationstar demanding payment to cure the account. I did not receive the Notice of Transfer of Servicing from either Bank of America nor Nationstar Mortgage as required by law. The penalty for violation is minimal.
On December 2014, Nationstar Mortgage filed a suit to foreclose. On January 2015, I filed Chapter 7 to protect myself from Deficiency Judgment. I was granted debt relief on June 2015. Last month Nationstar filed a Motion for Summary Judgment in the same Foreclosure case. My hearing will be on January 2016. I will attend the hearing representing myself.
I am asserting Nationstar Mortgage has no standing to foreclose. (1) the Assignment of Mortgage from MERS back to BOA as successor by merger with Countrywide was signed by the name of Ralph Flores-Assistant Secretary who knows what for MERS who is suspected of robosigning or document manufacturing. The Notary by David McCall out of California. The Corporate Assignment of Mortgage by Linda Lindhorst and Notarized by Linda D. Parks of Nebraska suspected of robosigning as well.
My financial resources is very limited and I am asking anyone for their experiences or any legal eagle out there. I am from Hawaii specifically the island of Kauai. I am 62 y.o. and while in bankruptcy I wrote to Nationstar Mortgage Loss Mitigation Dept.that I am eligible for a Reverse Mortgage. Whatever loan proceed net of closing costs will go to them as full settlement. Any deficiency will be in the form of debt forgiveness. I did not receive any response.
Any feedback is greatly appreciated. Thanks.
Ben,
Along with Glenn’s excellent suggestions you may have a few other angles to challenge their right to foreclose. One I mentioned in an earlier reply – look on your assignment to see whether it was executed in MERS name alone with no mention of the “lender”. Also see whether the assignment alleges to transfer the note along with the mortgage (MERS themselves have admitted they have no interest in notes). In all likelihood your loan had been in a securitized trust before being transferred back to Bofa as a non-performing loan by MERS. Bofa may have acquired it as a repurchase but more likely as a charge off. In the latter instance if the loan was improperly securitized they (the trust) never gained legal title and thus none to transfer.
Other challenges or defenses might be contract law related, if they hindered your ability to perform under the contract, misled you with misrepresentations regarding a modification, added illegal fees and overcharging, violated the covenant of good faith and fair dealing, servicer negligence, unclean hands.
As I recall Hawaii is a bit more homeowner friendly than other states so you’d want to make sure they followed procedure correctly and you were given every opportunity to resolve the situation prior to the foreclosure action.
If you’d like to get more ideas and input from other people fighting foreclosure pro se and sharing the knowledge you can post over in my thread at http://www.loansafe.org/forum/threads/bagels-at-a-bar-mitzvah.45173/
Thank you IsIsis for taking the time to comment on my post, its much appreciated. No I wasn’t given the opportunity to take advantage of the HAMP or the HARP programs. Three times with BoA they sent me the application Kit but not a word after that. Two times with Nationstar they sent me the application. Both times I responded within the deadline. All I got was silence, no email, no letter, no application denied.
At the hearing I plan to have a written statement as background of my situation so the judge will have an idea why its taking so long. That I wasn’t just sitting around until lender filed a complaint to foreclose. I will quote Neil Barofsky former TARP IG who said during an interview that former Treasury Sec. Geitner told him that HAMP was a way to help banks ride out the financial crises. That banks were doing modifications enough to satisfy regulators. My loan was a Freddie Mac loan and Freddie wasn’t doing to pressure lenders to modify like principal writedowns cuz the loans have been securitized.
Attached to the complaint for Summary Judgment is a copy of assignment of mortgage together with the Note from MERS to BoA as successor to merger with Countrywide. It is recorded at Bureau of Conveyance. The corporate assignment of mortgage from BoA to Nationstar Mortgage LLC only mention the mortgage and not the Note. So that’s my defense Nationstar has no standing to foreclose unless it can prove it is in possession of the original Note. I think BoA is in possession of the Note and give a copy to Nationstar because a copy was attached in the complaint with a blank endorsement from Countrywide. I think you were spot on to say the assignment from MERS was a repurchase by BoA because I read that non-performing loans are not allowed to be in the trust. Countrywide chose to adapt NY Trust law. Also BoA gave a Limited Power of Attorney to Nationstar to do certain acts that were enumerated. I will also cite the Tennessee courts decision a few months ago that blank endorsement is no proof foreclosing lender was holder of the note as no time or date was entered.
Part of my research is reading the Hawaii Rule of Civil Procedures. Thank goodness its available online. I’m going to Circuit court and talk to the clerk and ask guidance in preparing a response. Formats that sort of thing.
Thanks again.
Ben,
1-You should check with Your Attorney General’s office over the settlement with “49 Attorney Generals v. BoA, NA, et al” as in the 1 paragraph, You describe extensive/extended “Dual Tracking” whereby they pursued FC, while also (supposedly) pursuing ‘modification[s]’ with You, something noted in the (16 BILLION DOLLAR) settlement as a very bad ‘no-no’.
2-You should check BOTH Your Mortgage/D.O.T. & NOTE and see if they say (because the time line fits) whether “America’s Wholesale Lender, a Corporation under the Laws of New York” is Your ACTUAL Lender on the D.O.T. & Note? IF SO, there’s an ENTIRELY Different Reason they haven’t ever signed a modification agreement….they have no standing, as AWL never existed until long after Your ‘purported’ note was fraudulently engaged by a ‘non-entity’ (in Hawaii or anywhere else).
3-MERS had/has never had authority or jurisdiction over Notes (see Upke Deposition of William Hultman, Secretary of MERS, during Your period of time in question for the purported ‘assignment’), & notes don’t get ‘assigned’. They are Either ENDORSED (‘specially’ to a specific other holder, or in blank, by a proper endorser, [which obviously couldn’t BE either MERS FOR AWL, or AWL TO CW/CWHL/CHWLServicing] and ‘in blank’, means it’s bearer paper, aka, a CHECK made payable to “CA$H), or an Allonge (separate piece of paper transferring ownership either ‘in blank’ or to an additional new/different holder of the purported debt obligation) and Allonge MUST be PHYSICALLY Attached to the ORIGINAL Note. You don’t need to go further than THIS POINT (ignoring all ‘after’ an ASSIGNMENT purportedly ‘transferring ownership’ of a NOTE by MERS in that ASSIGNMENT….no summary judgment can issue, w/a MATERIAL FACT in question…summary judgment is reserved for the absolute slam dunk, evidence is perfect, no disputes, you’re wrong, they’re right and You AGREE that they’re right….THAT Friend is Summary Judgment Material. A NOTE, purportedly ASSIGNED, BY MERS, stated in that ASSIGNMENT, which has been recorded, is toilet paper.
ANY Further assignment is irrelevant as IT Relies on the Former, now incorrect Assignment. The Judge knows…Mortgages/D.O.T.’s FOLLOW Notes. 1 is the DEBT Instrument[read=IOU] & 2 is the SECURITY Instrument. BOTH Can not be ‘transferred’ at the same time via an ‘Assignment’. A mere READING OUT LOUD of that LINE in the Original Assignment is enough to have Plaintiff’s Counsel begging for a Continuance, OR agreeing to Your verbally proffered motion for voluntary dismissal, regarding either lack of standing, subject matter jurisdiction, OR ‘summary judgment’ because it sure as heck ain’t no “Slam Dunk” with paperwork containing THAT LANGUAGE…in Any State!
4-IF that language exists in Your Assignment (& I don’t think for a second You ‘made it up’), You need to contact a document examiner, because it’s guaranteed that assignment was either back dated, post-filing recorded (or both), and/or there are a trainload of other ISSUES with IT, and thereby ALL that FOLLOW it.
Simply CITING Your “BORROWER COVENANTS” gives YOU authority to Challenge the/their Submitted “Evidence”/Documents, not to mention Being a Defendant and exercising Your DUE PROCESS Rights. Does the mortgage allow YOU to challenge the [purported/current] Mortgagee? It’s plain and clear as Your FIRST Covenant[aka=PROMISE/Guarantee] to DEFEND Title[read=YOUR RIGHTS], generally, against ALL Challenges. Federal Law says contracts are to be interpreted in favor of the obligee, ergo the party who DIDN’T Create the document. YOU didn’t create the Document. YOU have the Obligation to POINT OUT that an Assignment can NOT ENDORSE OR ALLONGE a Promissory NOTE to a new Holder, before, during or AFTER <–(which is what's Most Likely, thereby further negating standing to file the) original complaint.
THERE is NO WAY Your Courts' Judge will doubt being overturned/reversed on appeal of THIS ISSUE Alone if granting 'summary judgment', KNOWING (Because YOU Cited same in the hearing) that this is an Issue of Material Fact which flies in the face of everything being 'settled' and no challenge to their motion for Summary Judgment.
Shutting up now, because I've been fighting 7+ years, winning repeatedly, but that still doesn't make me an attorney, or add "J.D." behind my name; Please construe NOTHING in this as legal advice, consult Your Clerk and READ YOUR RULES of CIVIL PROCEDURE on "Summary Judgment". The threshold for same (everywhere, to my knowledge) is HIGHER than 'beyond a reasonable doubt'…it is, them (plaintiff & counsel) alleging "NO DOUBT Whatsoever". That's impossible w/an assignment of mortgage/D.O.T. that purportedly endorses a NOTE Simultaneously.
HTH, & hope You start looking at ALL those documents more closely, because flaws of great concern are likely right there in front of Your Eyes,
-Mick
Thank you Mick so very much. No siree I didn’t make that up. In fact, after reading IsIsis post I re-read the Assignment again as it is right here in front of my desktop.I was actually hoping not to see the word Note as also being assigned thinking that yeah Nationstart does indeed is the holder of the Note. Suffice it to say that the Mortgage/DOT follows the NOTE IS THE LAW OF THE LAND.
As you’ve mentioned I will stop at this point after reading the wording of the assignment MERS TO BOA and see what plaintiff counsel will do. I don’t think they are expecting me to show up at this hearing. If plaintiff ask for continuance I will then voice a motion and ask the judge to dismiss the case with prejudice on the basis Plaintiff lack standing to foreclose. I will reserve the other point of contention in case I go to trial.
Thanks again.
But wait, I am now playing plaintiff’s counsel. Your honor their is no dispute the mortgage/dot follows the Note. The two are inseparable, the Note is essential and mortgage/dot is incidental. The assignment of the Note carries with it the mortgage/dot while the assignment of mortgage alone is a nullity. Therefore it is imperative the Assignment in question states both the mortgage and Note at the same document so as to make no doubt the intention of the assignor to relincguish its interest in said Note and mortgage.
Any rebuttal is appreciated.
Ben,
don’t even GO There (Because they won’t). IF ANYTHING (and IF THEY Showed UP), they’ll ask for either a continuance or evidentiary hearing regarding Your motion. The Courts are LOATHE to dismiss WITH Prejudice (& are usually reversed on same as well).
Keep it simple. Don’t Lecture, You aren’t a lawyer. Don’t try to impress with Your knowledge; rather ask Questions and already KNOW the answers (don’t believe me, watch old Perry Mason re-runs). Be Prepared for the potential answers. You don’t want to STATE Your case, You want to LEAD the COURT to it’s own conclusion, that this assignment is faulty, a pivotal document for standing and without the document, because it’s invalid, based on the words IN THE DOCUMENT ITSELF, the cornerstone of standing appears to have been removed, by the Plaintiff themselves, long before Discovery ever began, with 1 of the 4 foundation documents. There’s the Note, D.O.T./Mortgage, Complaint and Assignment.
Best Rule YOU can ever hear:
Less is MORE.
State the issue, in the form of a question, have boatloads of case law on hand and SHUT UP.
Next person who speaks (whether Opposition Counsel, or Court) LOSES.
Make Your case, simply, effectively, and through questions.
Every answer they (P’s Counsel) can possibly proffer has formerly been thrown on that grill of philosophical possibilities and toasted to a crackly crunch formerly…be prepared to cite the case and decision for every possible answer. Again, frame it in the form of a question.
Can the case law be wrong?
Can THIS assignment be right?
Can MERS have violated their own Corporate Policies and engaged an action that could cripple and/or potentially collapse a multi-trillion dollar industry by actually taking possess of, and assigning to, the purported assignee, while note even having any process or procedure for possession of NOTES, Servicing NOTES, application of payments TO Notes and this is all based on the statements of MERS Secretary William Hultman, during the UPKE Complaint’s Deposition? (look it up, print it off, highlight the incredibly relative to Your likely expected answer of either the Court OR Opposition Counsel…and POINT them to the Page and line[s] where Hultman admits that MERS has NOTHING to do with NOTES, never has and never will).
The MORE organized and over prepared You are, the less likely they EVEN SHOW UP, and Judge either dismisses or reschedules for another time. Understand that the Court IS AGAINST YOU. They almost MUST Rule against You. Barring Overwhelming evidence (& often even then) You WILL BE OVERRULED, so be prepared to appeal, WHEN the court intentionally rules against You, and don’t get emotional. EXPECT TO LOSE. Expect to have to appeal, and Judge in front of You reversed, Repeatedly, so many times that You can legitimately argue for change of counsel (and be granted THAT Order, compelled by the Appellate realm). Can’t say it enough, EXPECT TO LOSE. SMILE when You are over ruled, then go APPEAL it.
You’ve already won, at least this round, at some point. Be patient, confident and concise in this knowledge. Yes, just ONE document CAN demonstrate the inappropriateness of ‘summary judgment’, and even standing. When a cornerstone document states in it’s content that it is invalid, eventually the case is dismissed and they get a ‘do-over’. You win this time. They’ll be back, with properly recorded ‘corrective assignment[s] of mortgage and all their little ducks will be in a perfect row….next time. Relish Your victory, just don’t think it’s over, because w/the mega-banks it never is. They’ll spend 200x the value of the note to destroy You, come after You afterward for deficiency (including those atty fees) and ruin You for as long as they possibly can, because YOU are the whackamole who chose to resist the Boorg, chose to fight the system, got fed up and fought back. They MUST Silence YOU, because YOU could become a ‘problem’. Don’t for a second think Your battles are over; they’re just beginning.
Been there, done that (EXACTLY) so shut up Your “I’m gonna blah, blah, blah” because it never happens that way, the Court NEVER Dismisses with prejudice, because issues like this can be remedied….no harm, no foul. (regardless the massive harm, You can document…YOU are an insignificant speck of dust on the arse of a sand flea on the back of the system’s neck; never forget that analogy)
Make Your statement (Short & sweet).
Ask Questions.
Answer Questions, WITH Questions,
and stay on topic. Less is more. This is 1 SIMPLE Issue. Don’t make it rocket science. Words MEAN Things. When the CONTENT invalidates the effort of the document, the 4 corners doctrine prevails and what it SAYS is what it MEANS. Nothing therein (again, it’s THEIR Evidence, THEY Produced for the COURT, proving they had the RIGHT to pursue this action).
Sooner than later, IF things turn against opposition counsel, expect this classic (they NEVER, EVER fail to play THIS Card…especially when LOSING an argument)
“BUT YOUR HONOR, THEY’RE JUST TRYING TO GET A FREE HOUSE!?!!!”
Calmly look your judge in the eyes and state, “Your Honor, there has never been dispute of whether there IS a debt involved here or not, just how much it accurately IS, and whether IT is Owed to THEM, or more than likely, perhaps not?” (while POINTING to Opposition Counsel).
Don’t say another word.
Less IS MORE.
You win, this time. See if You can negotiate a settlement, because, somebody, somewhere at the current lenders, is interested in trying to mitigate their train wreck with You, and they’re not going to ever just roll over and give You a pass, on the debt. They can’t. The system collapses if YOU ultimately prevail, regardless the corruption we know to exist within the system. The have the backing (financially) of the USGov.Org ultimately and You can’t win against those resources. This is 1 win.
Rules:
1-Prepare, Prepare, & Prepare some more.
2-State Your Case (on this narrow issue only)
3-Less IS More.
4-Ask questions, politely & respectfully. Prepare the trap with questions so that any answer is ultimately, the wrong one.
5-SHUT UP.
6-IF the court chooses to rule from the bench, (REGARDLESS the decision) say thank You Your honor and leave.
7-IF the court chooses to ‘take it all under advisement and announce their ruling through order at a later date, same as above(& Expect that You’re going to LOSE on this issue, so start further researching for an ‘interlocutory’ appeal of the decision).
You asked. I’ve spent far more time on research in the last 7 years (on 2 FC’s and now researching professionally and examining documents for others) than law school would have been, but far less money. And aside a faulty FSJ, still haven’t lost yet.
LESS IS MORE.
Never miss a perfect chance to SHUT UP.
Documents speak for themselves.
Be respectful & smile. It’s just a BUSINESS to everyone else.
I’d say ‘good luck’, but You don’t need it. You need a good JUDGE. You NEED a qualified (& that’s unlikely) Plaintiff’s Counsel who readily recognizes their mistake and agrees to voluntary dismissal w/o an expensive fight.
So “good Judgment” to You and enjoy the holiday season, Obviously You’ll eventually prevail on this narrow issue for certain.
-Mick
Never forget, NOTES are transferred/sold via ENDORSEMENT or ALLONGE, no other way. No “Assignment of Mortgage” can ever formally transfer ownership/possession of a Promissory Note. Everybody in the court room KNOWS that. They need to KNOW that YOU know that.
MERS, Inc.’s inability to accept, possess, endorse, or allonge a NOTE to anyone, at any time, is mere icing on Your ‘mess of an assignment’ cake.
Ben…Mick is spot on. I’ve been a pro se plaintiff for 23 years. Same advice i would have given you. Just make sure that while you are losing, you will be building a rock solid record on appeal. As for the claim that “The Homeowner Just Wants a Free House,” you’re response should be “Your Honor, it is highly unlikely that you can make a decision in this case where somebody is not going to get a free (or relatively free) house.” Courts give away free houses every day Ben…they just don’t realize it.
Thanks Mick and Bob. By the way you asked in previous post who the Lender listed in the mortgage and and Note and it is Countrywide Bank, FSB. A copy of the Note attached to the complaint has a blank endorsement by Countrywide BAnk, FSB. Yesterday and today I’m immersed reading Hultman’s deposition in the UkPe case. Thanks for the Tip of printing it and hi-lite items that applies or relevant to my case. For sure will order more black ink (from e-z ink) for my printer.
So you guys know a precedent case Mortgage and Note in the same assignment is ruled Invalid. So the statement: the assignment of the Note carries the mortgage with it is not True since Note(s) are Endorsed rather than assigned. If there is I haven’t come across on the web and would appreciate it if you can point me to it. BoA gave a limited power of attorney to (POA) Naitonstar. Among the acts enumerated are (1) execute or file assignment of mortgage, (2) execute deeds of reconveyances, (3) correct any errors or deficiencies contained in transfer of document, etc. (7 acts altogether).
The Corporate Assignment of Mortgage from BoA to Nationstar (post assignment from MERS to BoA as successor to Countrywide) was prepared, executed by Nationstar as Attorney-in-Fact. And it is only fitting that a person employed by Nationstart with such clearly identifiable job Title and has authority to sign important document will be signing the assignment of mortgage. Instead it is signed by Susan Lindhorst, Asst. Sec. The name Asst. Sec. is reminiscent of the title Hultman gave to thousands he appointed as certifying officers for MERS in his deposition in the Ukpe case. Moreover the assignment was Notarized by Linda D. Parks of Scotts Bluff, NE. It is possible Susan Lindhorst is or was employed by Nationstart at its Scotts Bluff offices which is a document center for Nationstar. It is also possible she is employed by Nationstar in a lesser capacity but doesn’t have the authority to execute and sign POA.
If anyone has further info on Susan Lindhorst or Notary Linda D. Parks, please let me know.
Thank you.
Ben,
Rule out any “AWL” issues.
1-You now open new ‘can of worms’. I don’t recall if You stated who the actual PLAINTIFF Is, however if not nationstar, then who, and why?
2-WHEN is the P.O.A. DATED.
IF it’s before the FC filing/notice of sale, ok. IF NOT, You have ANOTHER issue beyond the Assignment to challenge regarding the Note. Either proper party plaintiff, or not so much?
3-Since Your note purports to transfer both note & mortgage, together, that’s YOUR Defense.
Additional items might well be either the date IT was executed (before or after FC Complaint filing?), date it’s supposedly ‘effective'(<–those are historically & conveniently just DAYS before the filing, and have been ruled invalid, for the whole document…It IS "Effective" the date it is RECORDED & not before), and obviously now, date it was actually RECORDED. The RECORDED Date MUST Be prior the complaint filing/initial filing regarding pursuing sale of property &/or any formal/legal notice of Your D.O.T. being defaulted.
Ben, this isn't about rocket science.
It's about the RULES.
The RULES say the threshold for SUMMARY JUDGMENT are clear.
NO QUESTION of Material FACT Exists. NONE. No DISPUTED "Evidence". They've produced slm dunk evidence, You LOSE. You have NOTHING You can object to. They did NOTHING Wrong and You have no challenge to ANYTHING.
-Bzzzzzzzz- (lying alert buzzer goes off)
They have a bogus assignment, based on the language therein.
Shut Up.
They get to PROVE they violated the law with the language therein, because notes aren't 'assigned' via assignments of mortgage or D.O.T.
They can't, they know they can't, so they won't.
Case continued until they can 'fix this', or the Court rules against You and hands it to them.
In the case of the latter event (which ISN'T Unlikely), You file notice of Appeal and (Eventually) You prevail on the issue of an existing question of material fact excluding propriety of summary judgment. Reversed & remanded for instruction to Your local jurisdiction to try and get it right, where they now assert a 'corrective assignment' 'fixes' the former one (<–which isn't correct either), as the cloud on title remains. They need to voluntarily dismiss, return to the well and try again with a new bucket of water (aka, evidence, once proper and recorded in advance of filing). Buys You time, and an excellent time to reach out and see about negotiating settlement for something reasonable;
Good luck, and learn that Bob is (even more so than me) RIGHT. K..I.S.S. & while the desire to do Your 'research' is overwhelming (we all understand, been there, DO that, for a living now), remember it only takes ONE Issue of material fact to justify voluntary (or involuntary) dismissal.
ALL of the issues You uncover regarding the Note/Mortgage/POA/Assignment aren't necessary to cite for the court….this isn't 'can You top this' (or my dad's better/faster/stronger/smarter than Your Dad). It's about ONE, clear, succinct ISSUE OF MATERIAL FACT negating SUMMARY Judgment as appropriate.
ALL of YOUR Other uncovered issues (INCLUDING ANY OTHERS IN THE Existing ASSIGNMENT) are saved for Round 2.
This isn't a sprint. It's not even a marathon. It's the IRON MAN. Save Your other uncovered issues for the next encounter.
"Your Honor, the document speaks for itself. It was RECORDED, ergo constructive notice to the world; It States that They Assigned the Note. Everyone here knows that an impossibility. Therefore a question of material fact I believe exists presently. Because a material fact issue exists, wouldn't the Court necessarily have to conclude that Summary Judgment is inappropriate at this time?"
SHUT UP.
No further words are required from Your lips aside "Thank You Your Honor" (regardless of their ruling. Quietly and politely exist the courtroom, REGARDLESS of the ruling, because You just WON this round (either w/a reasonable Judge, or at the Appellate level if not reasonable).
-Mick
Thanks again. Loud and Clear the KISS principle. I AM A NOOB as you know. Will only raise the question in the assignment of mortgage together with the note. For sure if they will give me a hint to settle I will highly consider it. In fact, while I was in bankruptcy I received a letter from Nationstar to let them know if I would sign the Reaffirmation of Debt Agreement which I did not sign. But I sent a letter saying I reached the age of 62 and now eligible for a Reverse Mortgage. That whatever I get will go to them as full settlement. Any shortfall will have to be in the form of debt forgiveness. I did not receive a response.
I suppose plaintiff counsel will be first to speak and present his case why summary judgment should be granted. Do you think its a good idea for me to first read a statement laying the history of my mortgage. That I was never late in payment since early 2003. Even when I lost my job in !0/09 I continued to pay on time until 12/10. That since 2011 I applied for modifications with BoA. I was working with CCCSSF of San Francisco. Time after time they come back to say that they didn’t receive the docs requested. I did not receive a final determination on my application and the loan was assigned to Nationstar. MY POINT ON THIS is dispel the notion I am trying to get a free house.
I also sent a letter to Nationstar exercising my rights under the Federal Servicer Act and Subtitle E Mortgage Servicing of the Dodd-Frank Wall Street Reform and Consumer Protection Act, and Truth In Lending Act to obtain documentation. Among the list of docs are: the chain of ownership of mortgage and Note, MERS milestone report when the note # and mortgage was tracked, who the custodian of my note and mortgage, the MERS # assigned to my loan, name of Trust and identifying series of certificates, class/tranche, cusip #, remic or mbs trust #, a certified true copy of the original note and mortgage, etc., etc., FOR ROUND 2.
Thanks again, Ben
I have an assignment of mortgage that Mers as nominee for Countrywide assigned over to Greentree. It has robo signer Tyler Driver as Mers Asst Secretary and Notary Nicole Baldwin in Pinellas Country Florida. Both signatures are stamped. I have proof as I came across other documents with the same stamped signatures. Notaries are suppose to have original signatures on every document. They forgot to put my name on it also and only my husbands is showing even though all other documents show both our names. I have a note that was never endorsed. Not blank! Doesn’t even have a payee stamp on it. It shows Countrywide as my lender even though the loan went from Countrywide to Bank of America then Greentree which is Ditech now. After trying to do a Deed in lieu with Greentree who hold the 80% and Nationstar 20% 2 years ago . Of which both just played games with one another at my expense. We were denied the DIL based on the fact that Nationstar would not settle for the 10% Greentree offered them to release the lien. I think we were played all along. Both told us to not pay because nothing would be approved if we weren’t 90 days late. Now I know that it was because once all of us were 90 days late. Insurance would pay off our loans. Then they would offer us a modification and collect more money. Greentree offered a Hamp but then switched it to a streamline and I did not realize it until it was too late. I recently noticed that Greentree never endorsed the modification either. I feel like I have so much fraud involved in my paperwork but not sure what direction to take, Nationstar will not answer any Debt Validation letters and we have asked for our note numerous time but they cannot provide it. They even sent us a note for someone else in another state one time and when we pointed out it was not ours they said, “Well that’s the only one in your file”.. The assignment of mortgage on the second mortgage has Susan Lindhorst as Mers Asst Secretary and Linda Parks as Notary.. Both are known robo signers also and I also have another document that printed out with mine from the country records that shows Susan Lindhorst, and the signatures are totally different from one another proving again that they were signed by two different people so the Notary, if she is legit was not truthful either if she signed that Susan was in front of her and that was her signature. How could she notarize two different people signing the same name? Also, the assignment still shows original verbage, mers, Countrywide Bony… It only states up in left hand corner that upon recording to send it to Nationstar. So, here we have fabricated paperwork from both servicers and we have an unendorsed note from the first mortgage and no note from the second. Do you think I could take them both to small claims court and have the notes rescinded based on robo signers (of which I can show proof) And I plan on sending a subpeona to all involved, and unendorsed note.. Do you think I stand a chance? Or can you recommend something I can do or someone I can use.. Any help would be great..
I think IsIsis who first commented Hawaii courts are somewhat homeowner friendly. And to my surprise the truth is contrary to what some people believed. Just for this year alone 2015, from intermediate court of appeals, and state supreme court rejecting to hear the appeals essentially affirming the lower court for a summary judgment of foreclosure.
MERS non-judicial foreclosure in the past have withstood appeal after appeal. In fact, a federal judge essentially told Defendant you are not raising a defense MERS assignment is invalid, void, etc in my court.. That defense is dismissed with prejudice. Even if an assignment is fraudulent, homeowner/defendant is not a party to the assignment. As such it does not cause injury to homeowner. An attorney I have consulted said, “MERS assignment defense is something lawyers in Hawaii don’t even touch anymore. In a way the courts are facilitating the backlog of foreclosures. So what MERS assignment is fraudulent, you still owe the money. This is the same thinking some judges on the mainland tho had been reversed. Standing is not important as foreclosing lender/servicer is simply enforcing the terms of the loan either for its own benefits or under instructions from someone who owns the loan. WHAT DO YOU THINK. Those who prevailed had issues raised regarding violations of RESPA, TILA, UDAP, OR FDCPA
Ever since Hawaii passed Act 48 that makes it cumbersome to say the least on non-judicial foreclosure. Lenders are now skirting the law and strictly going for judicial foreclosure where they’re not required to do a mandatory sort of mediation to try to give homeowners some sort loan modifications, forbearance or a combination thereof.
Essentially courts in Hawaii are ignoring courts decision across America regarding issues with MERS assignments. Understandably, they are not bound to decisions in other jurisdiction. As Mick said, “its not rocket science Benny, its the RULE. I wish I will have that chance to tell a judge that. Then again, may be I don’t have the guts to say that when I’m at the mercy of the judge.
Regardless, I will be filing a motion to dismiss the summary judgment prayed by plaintiff in two days citing mainland courts such as the Boyko decision in Ohio. May be the judge will stop to think wait a minute a federal judge dismissed a foreclosure complaints on fourteen homeowners because MERS cannot, and could not assign something it never owns. Like the old cliche, “you cannot give away that which you do not own.” So help me god.
With that Happy New Year To All!
But a homeowner is harmed when an entity who had not been made party to the contract – by virtue of a fraudulent assignment – attempts to enforce the debt obligation. There is no conclusive presumptive language in the Deed of Trust that provides that an assignment of interest may be effected by fraudulent means. On the contrary the security instrument in governed by Applicable law. Filing a false document effecting title is a felony here in California, so is forgery and doing so breaches the security instrument. A direct and causal injury is done to the borrower whose title has become clouded diminishing the property sales value. And don’t forget, in the loan contract the borrower warranted to defend title so challenging a false assignment is not just a right but a responsibility.
Benny, (Now ISlSIS is absolutely correct, or put in screenplay form):
Don’t You DARE even THINK of being rude to a Judge in HIS/HERCOURT ROOM. That’s called contempt and gets You a 1 way ticket to 3 walls and bars, and daylight again only after a sincere GROVELING apology to THAT JUDGE (if Hawaii is even remotely close to ‘the mainland’).
1-When (not if) Your Judge plays that “You weren’t a party to the assignment” card, ask if You may ask a question?
When he/she says Yes, You ask, “Your Honor, respectfully, I understand ‘covenants’ are promises, correct?”(they reply ‘yes’)
2-You move on, “well Your Honor, I made a covenant in the mortgage/D.O.T. with WhomEver the Mortgagee may ever be. I swore with that promise that I would defend my title. It’s so important, it was the FIRST Promise I was required to make. Is my title threatened by clouds on my title?” (they sheepishly say ‘yes’…because they already know where this is going and that You’re not an ignorant ‘sheeple’ readily stepping up to the alter of MERS, Inc, to surrender Your home) “Ok, then, You say, or rather the Courts have ruled that I can’t challenge an assignment I wasn’t a party to, but the fact of the matter is MY PROPERTY IS a party to that assignment, and by way of the MORTGAGE I Entered In To, it’s my DUTY, per that Promise, to Defend my Title, and that would include, against fraudulent, or at minimum, faulty, assignments OF my mortgage, Correct?” (yes, however that’s not how I read Your covenants or interpret them). “Ok, Your Honor, so what You’re saying is that I was misled in making a promise to defend my title?” (no, I simply mean, I think you are misinterpreting what that means);
3-“Well, Your honor, now it sounds to me like You’re stating that there may be ambiguity in the Mortgage? If so, doesn’t the Law require that any ambiguities be settled in favor of the party who DIDN’T prepare the document?” (yes, that Is the Law) “Well, Your Honor, I didn’t prepare that document. I just promised to defend my title against all challenges or potential clouds on it. So why can’t a faulty assignment be challenged if it clouds my title?”
4-SHUT UP(!);
the next person who speaks LOSES (and it has to be the JUDGE, or Plaintiff’s Atty If YOU aren’t talking!).
IF He/She rules in Your favor, bully on You; doesn’t really matter because now You’ve preserved the objection and affirmative defense for APPEAL, where it matters. This argument NEEDS to be made because it appears no one has previously, over there yet? (pretty scary how many people never read their documents, including even the attorneys hired to ENFORCE them).
HTH & Happy New Year,
-Mick
PS: Re:#4 above….pregnant pauses, up to 60 seconds (which are an ETERNITY in ‘real life’ aren’t mentioned in transcripts, whatsoever. Remember that. Having the COURT Scratching their head (OR Plaintiff’s counsel ignorantly interjecting to try and ‘help’ the Court) is NEVER a bad thing, and nearly ALWAYS beneficial to YOUR Cause. Shut up means SHUT UP AND COUNT SLOWLY to 100 (in Your head of course), while waiting for the bench to rule. They now KNOW You aren’t ‘sheeple’ & plaintiff’s gonna HAVE to get it in a pile to prevail against You….oh well.
Mick…I like your counsel to these folks. What’s your main line of work, and what state are you in?
Bob,
hang on to Your hat…..
My main line of work has recently changed….again. I’m in Florida, and probably have 300,000 pages of research accumulated in this particular segment of law, specifically FC Def., and IN Florida specifically, but probably 200,000 pages worth is federal or BK rulings (& no, not now & never had “JD” behind the name). An expert on nothing, but exceptionally knowledgeable of all banking procedures prior Graham-Leach-Bliley. (no kidding…the research? try 28 gigs….and growing, a constant struggle to properly organize, categorize and remain current on)
I’m a former (16 yr veteran) NCNB/Nationsbank(pre-BOA/BANA) employee who started as an asst. teller trainee, and left as VP of mortgage divisions in 5 states in the late ’80s, w/primary background in UNDERWRITING, long before the age of ‘securitization’.
Following, did a stint in R/E as managing broker & facilitator of M&A for 2 startup franchises, then International Debt Collection Marketing (names You’d know are Toyota M.C., Dexter & Master Lock Corps., GMAC, Ford M.C., McKee Baking Company, Hostess, aka Interstate Brands & more). Semi-retired at age 32 & moved to Fl.
Started my own biz, did that for 10 yrs (retail) & then transitioned back in to Mtg. Broker (’00-’10), spent lots of time OTP w/Charlie Crist, then Bill McCullom (FL. AG’s & their offices) fm. ’03-’09 reporting FRAUD in R/E transactions, & Mtg. Origination/’Funding’, along w/institutional fraud, literally, from the top, down.
Experienced our 1st FC starting in ’09 w/infamous David J. Stern, PA (since disbarred) as P’s Counsel & while Pro Se, discovered tons of fraud & wound up w/a newbie Judge & this being his first contested Mortgage FC. Bogus assignment, all the typical crap You read about now, was on the front lines of it in ’09 & screaming about the nightmare. Stern walked away & left 100,000 open FC Actions in Florida Courts (& we of course were 1 of them). He was fined a whopping $49,000. (we’re still owed that 49 CENTS TOO By the way!) The hypocrisy of it all is when I do investigations and SHOW the FC Defense Atty’s that their JUDGES are CONFLICTED, former Chase/Duesche[sic]/Citi/BoA/WF EMPLOYEES, Bank LAWYERS or FC LAWYERS, they’re so stunned they’re speechless….this from guys & gals who make their livings running their mouths and being ‘experts’? The hypocrisy is that the system is rigged, nothing will change until 95 out of 100 show up to FIGHT the (bogus) process which is full reversal of the current sitrep. (had a date at courthouse doing title searching and stuck head in FC Court’s courtroom, and 112 on the docket. About 14 people were in the courtroom, count the JUDGE and the Reporter! I only seek to help those fighters who are trying to help themselves. The sheeple are the problem, equally to the thieves at the banks w/predatory, 45 yr. amortization, interest only, pay option arms and neg.am. loans that were designed to fail so that they can steal Everything.
It’s 7 years later, we’re arguing AWL as Lender on Note & Mtg. is Fraud in ab nitio before the 1DC here now (still pro se), have guaranteed R&R based on the bogus (retroactive & 5 month post filing) Cheryl Samons signed assignment, they never had standing, however far more importantly, they never had a CONTRACT, because of course we all now know, AWL never EXISTED. & No, before You ask, CW isn’t mentioned ANYWHERE in Note OR MORTGAGE, just “AWL, as a corporation, existing under the laws of NY” (which I discovered, in early ’10, compliments of CT. Supreme Ct. Upholding of App. Dec.’s on Silberstein & Pagano, was a complete fabrication….& we can’t have entered in to a contract w/a NON-Entity, can we?)
Our (First, oh, yes, there are 2) FC was caused by wife’s medical issues. In reality I know now it was divine intervention for me to get sucked back in to this ‘biz’ of ‘felony conduct exposure’ (something I’ve gotten infamously good at over the decades, & even have a former Governor’s Emergency Executive Order I’m directly responsible for, as well as my own ‘count’ in a Federal Complaint for ‘invasion of privacy’/Slander & defamation of a CORPORATION….they lost that 1 too; so far I’m batting 1000 at the plate, as the ultimate defense for Slander/Defamation is documenting it’s THE TRUTH….gulp [for them], and invasion of privacy, with the exposure/further publication of PUBLIC RECORDS <–means they were never 'private' in the 1st place, duh, Again).
Second FC was caused by legal issues after exposure of a corrupt (now dissolved) PD in a small town in N.Fla., where they attempted to destroy our lives. They failed. We prevailed, although it took 4.75 years. Still not done on that 1 yet, but the check wasn't small on the 1st round. Back to the FC, WF SOLD AWAY their standing PRIOR FC FSJ and I pointed this out (per mailing[s] FROM the NEW Holder), however Maj.Judge [incorrectly] determined that standing was only necessary at filing, not THROUGHOUT the process. That's been since reversed[duh], have challenged the FC Sale, the THREE QC Deeds further clouding title and SALE to our former Next Door Neighbor (who committed Mtg. Fraud against the VA stating it would be primary, & hasn't been, for more than 2 yrs now) for FAR LESS than we were negotiating for modification of, via principal reduction, while being dual tracked, and them attempting to FC w/o Service (EVER).
Now the Court has scheduled re-hearing (either way we win, as I appeal any decision shy of complete dismissal of former FC action and FNMA (along w/title insurers) being required to refund $$ to my former "neighbor's" 'acquisition' of our former home. I'm so confident in prevailing (any SOME LEVEL) that the funds have been being saved for buyout. WF had NO Standing @FSJ Hearing (but the court thought they did, even though PUBLIC RECORDS contradicted that thought process), they collected on PMI Premium, AFTER Sale to a "Stanwich Mortgage Loan Trust" (note NOT a "NPL Trust", a PERFORMING Loan trust, which would be an additional fraudulent representation because by that assignment date we were indeed a "NPL"; they collected on the FC Sale date by showing up and stating they were note holder of record, bidding a whopping $300., then the QC Deed cluster began. Ultimately FNMA issued a "special warranty deed" (which is fraudulent, as they signed a QC AWAY, not TO themselves), and the clouds on our former title are so perverse, it's going to take multiple forensic experts and a QT action to settle this, after our former neighbor, now (finally, after 2 years) resides in our former home. HIS Issues are w/his TITLE INSURER, who allowed him to Re-Fi, 10 months after purchase, while we had an LP FILED against the subject prop. and he'd been noticed of our Motion for RH, based on both N.D. Evidence AND Fraud on the Court (there's no time limit on same and the big 'ole MESS WF, Carrington & FNMA made w/all the subsequent QC Deeds trying to clear up what they did IN and Out of Court, speaks volumes, and all for itself, because IT again, is 'constructive Notice to the World' that the COURT CHOSE to ignore…oops). Again, either way we win, regardless the Courts' decision as we're off to the 1DCA, w/the predictable outcome which WILL be R&R w/inv. dismissal, because standing is critical, from filing to sale date. Case Law sustains that opinion that I maintain, per multiple circuits rulings, even if it did take them almost 2 years to come around to ruling in my favor for re-hearing and evidentiary hearing, and now, finally, 'rehearing on that evidence'. P's Counsel for that/this mess is Butler & Hosch, also since defunct. I look forward to learning who I'll be opposing in this one in a few weeks. So who got a 'free House"? WF did MUCH Better….they were paid no less than THREE TIMES for our former home, which I doubt will sit well with ANY Court once explained so that the dumbest in the courtroom grasps the process, completely.
Yes Bob, this was long; pretty difficult to culminate a lifetime in paragraphs, but there it is. FYI, when leaving Nations (shortly after acquisition of BancAmerica in CA. for purpose of becoming BoA) our 'acceptable' NPL # was a whopping .3% Yep, 1 in 300 mortgages being non-performing still had Everyone including local branch managers dealing directly w/mortgagors to rehab and we did whatever was necessary to save all we could. Now BoA reports over 18% NPL's most recently, a former high of 26%, and what (almost) nobody has been paying attn. to is all the REO Property they don't have a clue how to manage, and CAN'T just DUMP on the market w/o total devastation once again, caused by THEM. Glass-Steagall was a good thing. Banks and Investing Institutions MUST be separated again if we're ever to recover fully from 2008, and since, because the devaluation of R/E and our historic ownership/equity models has been so debased that's the only way it ever recovers. No I'm not an atty, and we all know that can be an advantage as well, You (after 25 yrs a P.S. Litigant, probably far better than me) already know.
We owner financed our most recent purchase, 3+ yrs ago, and have a current LTV < 29%, getting ready to re-fi via credit union in to a portfolio HELOC so we can pay off even faster, and while I don't agree w/everything he says, Dave Ramsey's policy of paid off home mortgages is a sound 1. we'll be paid in full in another 2 yrs. Searched for a year to find what the wife wanted, I could live with and had owners willing to finance, and ZERO MERS transactions in title history.
Doesn't mean I'm letting banks & their criminal enterprises, or their mill atty's who think Fraud on the Court is just S.O.P. off the hook, and after the info is provided in vivid, gory detail for attorneys, IF they fail to do anything with the information, that's my last report for them. Their clients deserve better. Sooner than later (and more often already) Defendants are approaching me directly to see what can be done, the research is handed to them to take to THEIR Attorney, who's invariably stunned and well, hopefully, a different outcome is pursued. I don't give legal advice. I state what the documents say, in terms anyone can understand, tie in the case law and explain how what's being asserted is a physical impossibility (when that's the case, which of course is more often than NOT). Judges don't like me much; when asked, I can cite case law until tomorrow. That doesn't make me an attorney, or an expert, and it isn't legal advice, it's just Case Law (which of course GOVERNS what THEY get to do, or certainly be reversed, either on an interlocutory basis or post judgment, & either way, nobody likes being told 'You Were Wrong'. Some appreciate the input after asking, and have patterned judgments based on some of the case law cited, making their job Easier), but I'm just a schmuck that lives this stuff because they tried to screw me, I KNEW what they were doing COULDN'T POSSIBLY be LEGAL, and damn if I wasn't right after some research. Once the juices are flowing, well, stand back because I'm going to be so deep in it that I have to go sailing to keep the head from exploding! =:^)
As of Jan. 1, 2015, I determined to start a business doing forensic document (& post FC Action Document Review) examinations (for determination of valid appellate issues), then certified forensic loan analysis along with expert reviews of state laws regarding notaries and interfacing all in to a clustered reporting business model. My partner is a loan counselor and modification expert who worked in the field for 15+ years as well, for the feds and NFP's. We're both virtual experts, conservative by nature, picky about who we work for, and educational expert witnesses. We've taught more than 1 'guru' FC Def. Counselor a thing or two about case law of which they were completely unaware. NOBODY Can know Everything, even if this little Niche` was their ONLY focus, and teaming up w/those willing to listen more than talk, is a blessing, along with their proactive clients. As of Tomorrow, we actually start 'advertising'. Bringing MERS out of the closet and stopping the madness is my goal now….1 FC at a time. I've approached a dozen heavy hitter lawyers about going after MERS, in QT suit[s] & all are chicken. A couple had interest in the "AWL/ABC/ACT Mort.Capital" issue for class actions, but they all chickened out too and never called me back (After ARGUING with me that what I was stating not only as Documented FACT they could review all over the internet regarding 3,500,000+ BOGUS Mortgages created by AWL alone where there IS NO LENDER of Record…I Said Call me back and remember what You said…"THAT CAN'T HAPPEN", because You're incorrect, and it DID. Some w/JD behind the name seem to think that grants 'expert' status. Even experts can be and are often Wrong. I've fed questions to FC Defense Atty's for Bank witnesses and watched those witnesses STUNNED when tripped up over their own (often perjury filled) testimony. I've seen them try to burn holes in me w/their eyes and Plaintiff Lawyers have taken my picture once out of court (I'm concluding, to have circulated either among their firm or regionally, because unlike our side of this equation THEY ALL WORK TOGETHER to feed their master, the banks). They don't know how to act when You challenge their veracity, because they KNOW they are so deep in the lie they began believing IT themselves eons previously.
I still work as a mortgage broker, owning my own enterprise, although since '06, ONLY commercial, not even any 'mixed use', and all the lenders I work with PORTFOLIO their notes, or we don't close. Clients (if they don't understand the 'designed to fail' MERS business model in the beginning certainly do, long before the closing table) trust me, and it's w/good cause. IF I can help You, you'll be the 1st to know; same goes for the alternative. In addition, in doing document examinations of discovery evidence provided (or not provided but equally easily found), I've done 10-15 page reports on the fraud/faults/sheer worthlessness of just ONE ASSIGNMENT, which at a first glance, appears, totally legitimate. Often, the sheer volume of corruption is staggering, even in ONE Document. Does the FBI, FTC, CFPB, OCC care? Nah, You've got to Bust open those TRUSTS and make them ALL Liable for the tax ramifications….then the feces will hit the aerial agitator. Until then we're fighting the waves with 1 grain of sand at a time. I believe the corruption runs all the way to the top, and it's not until Mom & Pop realize their retirement accounts are as vacuous as SSI that folks wrap their heads around how wide spread the theft was/is/will be.
When I stop learning something new every day, I've already requested to be taken out behind the barn and shot. Until then, I'll keep sharing and hoping more glean something of value than the party the answer (or questions) were directed to. The internet is an awesome tool; we need to all learn to master and use it constantly. The answers are out here, just never stop looking.
Hey, You asked.
I answered.
Happy New Year to You and Yours, from a fellow happy warrior;
Most Respectfully,
-Mick
No More Free Houses for Banks!
ok, just reading through your stuff now. very impressive. i’m the guy that wrote the Erobobo Amicus Brief, among other things. This could be our lucky day, if you’re interested in monetizing all this knowledge and experience. Contact me at bob1365@gmail.com please.
Check Your inbox.
Wow, guys pretty impressive. Mike writes like Hunter S Thompson while being a renaissance man and Bob did Erbobo, one of my top favorite cases. You know in that one the Court ALMOST got it right. He came right out and said it, of course then he deftly stepped back.
“Thus to qualify for the REMIC tax benefits, the mortgages upon which the securities are based must be acquired by the Trust within three months of its startup date. While section 26 U.S.C.A. § 860D (a)(4) permits a REMIC to contain some portion of non-qualified mortgages, it is unclear how many unqualified mortgages are permitted without losing tax status. It is clear, however, that the late acquisition violates the terms of the PSA.”
What the Court in Erobobo failed to note was that the portion of non-qualified mortgages is intended as a safeguard for qualified mortgages that lose that qualification due to other circumstances such as modification, refinancing or liquidation not as a means of allowing the inclusion of loans after the trust is closed. This is clear from 26 U.S.C. § 860G (d)(1) Which imposes a 100% tax on contributions after the startup day. In other words while a small percentage of loans may be unqualified their lack of qualification must not be due to an untimely transfer.
That aside, the Court seems to imply that if the number of allowable non-qualified mortgages was clear and had been exceeded then federal regulations would prohibit the transfer regardless of PSA provisions.
Some times I wonder if the banks are the ones who someone got us futility challenging PSAs so we’d overlook the obvious. The REMIC trust’s are breaking federal tax law – while the IRS looks blithely the other direction. We are talking about money the size of the National debt. It also makes it possible to challenge foreclosure as the assignment was to an entity engaged in tax evasion and requiring the borrower’s complicity in an illegal act. An illegal contract it’s void
For the avoidance of doubt I should point out that a timely transfer, far from being the rule is a rare exception. I found this out in an extensive search of County recorders in multiple states and counties. My trust is private non-registered, non-reporting so lacking a PSA instead I tracked the trusts activities through Google searches and in land records looking to compile a de minimis amount of unqualified mortgage loans that had been liquefied to be able to demonstrate that the CWABS Trust’s REMIC status had been forfeited, in fact had never existed and yet they have been enjoying tax free benefits for ten years. The banks are criminals.
Rephrasing a question, or series of questions, or implied question/s, asked above:
Can notes be assigned?
Rephrasing further:
Can an assignment of mortgage (or substitution of trustee) also convey an interest in a note?
Ohio 10th DCA recently dealt with that issue in U.S. Bank Natl. Assn. v. George, 2015-Ohio-4957 (reconsideration has been filed, and if US Bank loses I’m sure they’ll take it to the OSC).
See page 12, ¶ 25:
“We believe that at least one of the underlying cases relied on by the court in
Locke has been clarified to the point that its premise as we surmised it no longer supports
what we previously held in Locke denying standing to non-privity challengers of note and
mortgage transfers and assignments. We thus extend our holding in Pasqualone to clarify
that standing broadly exists for persons to challenge the validity of the transfer of a note4
or assignment of the mortgage, whether or not in privity with the person entitled to
enforce the note or mortgage, regardless of whether or not the note has been negotiated
and transferred under R.C. Chapter 13, Ohio’s codification of the Uniform Commercial
Code.”
See also page 12, footnote 4:
“Under Ohio law, the right to enforce a note cannot be assigned; rather, the note must be negotiated in conformity with Ohio’s version of the Uniform Commercial Code. In re Wells, 407 B.R. 873, 880 (N.D.Ohio 2009). See also HSBC Bank USA, Natl. Assn. v. Surrarrer, 8th Dist. No. 100039, 2013-Ohio-5594, ¶ 17 (in order for one other than the payee to enforce the note, the note must be negotiated to another who then becomes the holder of the note). An attempt to assign a note creates a claim to ownership, but does not transfer the right to enforce the note. Wells at 880. An assignment of a note may be by negotiation, pursuant to R.C. 1303.21, or transfer, pursuant to R.C. 1303.22. “Negotiation” requires transfer of possession of the instrument. R.C. 1303.21(A). The “transfer” of an instrument requires physical delivery of the note “for the purpose of giving to the person receiving delivery the right to enforce the instrument.” R.C. 1303.22(A).”
The concurring opinion of Dorrian reads more like a dissent (actually it reads more like an “Oh shit!!”)
There is much to like in George. Repeating, “Under Ohio law, the right to enforce a note cannot be assigned.”
For poops and grins I did a search of UCC Article 3 for the term “assign.” That scooped up assign, assignee, assignor, assigns, assigned, assignment, etc. More precisely I searched UCC Article 3, and the Official Comments – Article 3. Article 3 itself is 44 pages. The Official Comments are 110 pages.
“Assign,” or derivations, appears 15 times in the combined 154 pages of Article 3, and the Official Comments – Article 3.
By contrast the term “indors” (which also scoops up any derivations, e.g., indorse, indorsor, indorsee, indorsed, indorsement, etc.) appears …
Wait for it …
563 times.
So which is most applicable to negotiable instruments?
I’ve waited years for a court to so unambiguously state this blatantly obvious fact in a “modern” foreclosure case. I think I’ll threepeat myself repeating the George court:
“Under Ohio law, the right to enforce a note cannot be assigned.”
Once you’ve calmed down be sure to give the entire opinion a read.
¶ 24, and ¶ 26, are also “Wowsers!” Fold in ¶ 25 and this isn’t a stretch:
Makers of notes/mortgages, though not in privity in subsequent conveyances, have sufficient personal stake in the outcome of the litigation to acquire standing to challenge a party alleging rights to enforce the instrument/s.
———-
Lastly, “R.C. 1303” is Ohio’s statutory adoption of the UCC, and found here:
http://codes.ohio.gov/orc/1303
Hi Mick,
You are so knowledgeable. I have a few questions. How can I find out if my mortgage-backed security still exists? There have been no filings with the SEC since 2006. I am currently with Select Portfolio Servicing (ugh!). When I submitted the QWR to SPS for ownership info, I was informed of the following: GS Mortgage GSAMP Trust 2005-HE1 assigned 02/11/06 (PSA closing date 02/01/05) . When I pulled the records from the County Recorder an additional entity appears MLMI Trust Series 2005 SL1 assigned 06/22/2006 (PSA closing date 1/31/05). What is that about? Can I have SPS dismissed as servicer because my loan is with MLMI Trust Series 2005 SL1 and not the one listed above?
Can you direct me to language or an example I can use to file a SEC whistle-blower complaint related to fabricated Assignment of Mortgage?
List of Servicers:
Fremont Investment and Loan (appears no where on PSA)
Countrywide
B of A
MERS- who still lists B of A as owner (I know they are only a repository and not a servicer)
SPS What do you know about Select Portfolio Servicing?
I live in Los Angeles, home purchased 08/24/2004, I’ve been fighting the banks since 2006. Never giving up!!
Thank you,
Didra
Hi Didra,
My apologies for the delayed reply, have a full plate after (very) recent appellate decisions locally and don’t have time to offer You what You need (right now), and existing clients (mostly attorneys) are clamoring for time. It sounds like You have some very viable issues, although again not being an attorney, and certainly not in CA., I do know 1 there who’s top shelf I can refer You to, and I can likely help You if You can hold off until this time next wk? By then should have head and shoulders above water again? You can contact me directly via: blind guru (<–all 1 word) -at- comcast.net.
I just wanted to point out a few things. Check out the wording on your Note. I know a lot of the Notes out there say this. Mine says (1st paragraph) “I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the “Note Holder.” So In order to be the legal Note Holder under your Note, the entity has to hold the Note AND be entitled to receive the payments under the Note. I don’t think there is one securitized trust who can say they hold the Note AND are entitled to receive payments, since the payments go to Investors. Your PSA will say the Trustee makes something like .0009% for each mortgage.
Also your deed will say in section 19 or 20 depending on what type of paperwork you have, something like “The Note or a PARTIAL INTEREST in the Note (together with this security instrument) can be sold one or more times without prior notice to Borrower.” This is how they split up, or diced and sliced your mortgage into infinity and was able to put it in different tranches in a trust, or put it in multiple securitized trusts, making it almost impossible to say who owns or holds your Note.
Also the easiest way to get your PSA is to call your Servicer and ask who holds the note. They’ll tell you it’s in XYZ Securitized Trust. Then call the SEC @ (202) 551-7230 and ask for all the paperwork for that trust. DONE! I spent I don’t know how many nights trying to find mine before, until I discovered that phone number and got it in a day or two without any more searching. They will email it to you. They wanted something like $50 for all mine, but they send you the files BEFORE you pay. And the guy I talked to said they don’t bill you, and they haven’t, (and it’s been over a year now) so it’s basically free. Stop spending days looking for the paperwork or paying someone to find this stuff for you.
Hopefully I’m about ready to blow up MERS, BOA/Countrywide, CWABS & Bank of New York Mellon soon too. I’m hiring the lawyer who stopped MERS from foreclosing in Washington State in the Bain case. She has the experience, don’t mess around and will take the case where ever it needs to go to win. I have plenty of fraud evidence to give her after a couple of years of research, and if I can convince her she’ll win, the lawsuit is free. (contingency) Otherwise it’s a Consumer Protection Act (CPA) lawsuit which will accomplish the same thing. I did my own audit for my county and found plenty of fraud for the CPA action.
soulsearcherz
1. My question: is Bain case analogous to your situation? In other words, do you have same affirmative defense as Bain?
2. What Statute of your state law with regard to CPA that MERS,
LENDER, OR SERVICER, SUBSERVICER has violated or in violation of (unfair, deceptive act and practices? UDAP)
3. What is the Appeal Court or Supreme Court of your state has said about assignment of mortgage, robo-signing, and PSA. Some courts have ruled the borrower/homeowner typically has no standing to challenge the assignment of mortgage because they are not a party to such assignments.
4. Assignment of Mortgage by MERS is a done deal. MERS has rights to make the assignment as NOMINEE of lender. The AOM language then should state MERS AS NOMINEE OF…..lender name. If such language is not present you may have a case.
5. The AOM has the MIN NUMBER. Plug that number on MERS system and it will tell you who the Note Owner.
6. With regard to Negotiable Instrument, research your state’s UCC LAW. It usually mirror the Federal UCC.
7. A TILA violation has a good chance of winning. See Jesinoski- U.S. Supreme Court. Good Luck.
Just one clarification. MERS was actually 3 separate and distinct corporations. It is completely researched and documented in https://deadlyclear.wordpress.com/2013/09/27/the-history-and-death-of-mortgage-electronic-registration-systems-inc-according-to-the-ustpo/
All the documents are linked and the details give you the chronological order of events. The original MERS began in the early 1990s. As of today, 2 entities exist. MERSCORP HOLDINGS, Inc. and Mortgage Electronic Registration Systems, Inc. Only MERSCORP owns and operates the registry software and has the membership. Mortgage Electronic Registrations Systems, Inc. is a shell corporation, a straw man, no assets, no employees only found in the mortgages. To our knowledge, no document has ever surfaced or been filed that allows the commingling of corporate documents or assets between the corporations.
1. If you read R. K. Arnold deposition in Debra A. Henderson vs. MERSCORP, INC., you will know the birth of MERSCORP, AND MERS INC. The first MERS was re-organized giving birth to MERS, INC. as subsidiary or operating arm of MERSCORP., the parent company. You are right, MERS, INC is a shell company. Its employees are employees of parent company. All major decisions, endeavours and what not by MERS, INC. are by resolutions by the board of directors of MERSCORP, or by its President, CEO as authorized by the board. There’s nothing wrong with that.
To put it in perspective, Apple Computer (yes the iPhone guys) has a shell subsidiary company in Ireland for tax purposes because Ireland has such a law. Apple products coming out of China are imported by the Ireland subsidiary. All profits by the subsidiary company are tax free by Ireland tax law. It’s all paper work. Products are not actually shipped to Ireland. Apple also has an investment arm subsidiary incorporated in Utah due to favorable tax laws. That is just one U.S. Global company and I’m sure Dell, GE, IBM, MS, ETC are doing the same.
2, I don’t know what you mean by commingling of documents or funds between parent company and subsidiary. If you know accounting in major corporations, funds are being shipped daily or whatever the frequency from subsidiary to corporate parent’s accounts. Funds are also funneled to subsidiary to support operational expenses. This is for a wholely owned subsidiary. If the subsidiary is a joint venture between two parent companies, funds are treated differently.
I would like to comment to Didra’s question in how to become a whistle blower in mortgage fraud. The whistle blowers and their attorneys who brought the mortgage fraud out in the open have made their millions already. You cannot be a whistle blower in anything unless you were there actually doing it.
“The whistle blowers and their attorneys who brought the mortgage fraud out in the open have made their millions already. You cannot be a whistle blower in anything unless you were there actually doing it.”
-Exactly right; 1 of the conditions (and reasons Lynn Simonziak’s QTR lawsuits didn’t continue) is that IT (the violations of Federal Laws, defrauding of Federal or State Gov.orgs [or ideally, both]) MUST(<–Key Word There) NOT Be available information to the "general public", and MUST be uncovered, discovered or revealed through confidential information/documents/emails/etc. that are ONLY available 'internally' to the Defendant[s] (ergo: "Whistle Blower" Lawsuits).
Otherwise (regardless of whether IT [the discovered evidence], uncovered via PUBLIC RECORDS RECORDINGS for example, documents 10 TRILLION DOLLARS worth of PUBLICLY PROVABLE FRAUD….doesn't matter, and) the gov.org will NOT Pursue it, because that requires WORK on their part. THEY as individual ants on the giant conveyor belt look at that 4 letter word as the most horrific possibility they could be exposed to actually being required to DO THEIR JOBS (OMG, the HORROR!). See successful QTR prosecutions invariably end in settlement, and ALWAYS involve the QTR Plaintiff (and their counsel[s]) doing 98% of the investigative work and proffering to the gov.org's prosecutors (including but not limited to the IG's of the various Fed. Agencies that may or WERE Defrauded, aka OUR MONEY STOLEN, FBI, Etc.) a literal open and shut case (absolutely for more than $10M minimum) or they'll decline the prosecution….and the dirtbag activity goes on (and on and on and on).
Kewl new terms like 'robo-signing' (instead of Forgery and Fraud on the Court and Submission of Fraudulent Documents) get created and the process continues, without so much as a hiccup in the proceedings.
And until bank employees actually are indicted, convicted and perp walked to their new prison housing, nothings' going to change. Now even Student Loans and Property LEASES are being securitized, so just remember, unless You're a BANK employee, with about 600-1000 DAMNING confessions of felony fault, in say, EMAILS, from CEO's, CFO's, or documented policies and procedure manuals that spell out that Criminal conduct as good examples, save Your energy; the gov.org isn't going to stop 'IT', because ultimately, like Florida, a majority of the JUDGES are former bank Employees, Lawyers, or Bank Representation Firm Principals.
My suggestion, if You find voluminous documented fraud in the County's or State's public records, is to seek out a Class Action Lawyer….one so rich he/she/they aren't afraid to take on the Mega-Banks, and bring THEM the 'open and shut' case. Maybe You'll get lucky (Remember, OJ Simpson beat the rap, for Murder x2….yet the Goldmans prevailed against him civilly for $50M. Difference here would be that WF/BoA/Chase/Citi…et al, actually HAVE the $50M (& for them it's literally 'pocket change'). Pursuing Criminal Conduct, for damages, civilly has already proven successful in Texas, Ct., NY, NYC and more.
HTH,
-Mick
Asking the services, “who holds your mortgage” is fine, but relying on the information to be correct is another matter. Always do your own research. You never know what you’ll find. Never trust anything the banks say.
Reblogged this on sandrakblog and commented:
WOW A HERO
What are the laws and procedure to get a Mortgage that was closed with MERS verbiage and it should not have closed that way because the servicer does not accept MERS. Should I have the Mortgage re-recorded to remove MERS or is it acceptable to get an Assignment done?
In the state of NJ
The biggest issue that people are failing to argue, which the courts cannot deny, is the one thing that can eliminate these ridiculous obstacles. All the mortgages laws in the world do not and cannot change the fact that fraud is the most relevant issue that has surrounded all of these foreclosure cases for the last 10 years. And that fraud is well-known by all, including, and more especially, the Judges. These cases have overwhelmed the courts in every state, and Judges have been the only ones sitting on the front lines of the battles.
There isn’t one of these banks that wasn’t in trouble for fraud involving foreclosures, and for any court to ignore that fact, for any reason, contravenes the doctrine of absurdity. It would defy logic and common sense for a court to ignore that fact. Furthermore, the wrongdoers, who are giant banks, have unlimited resources, which is an unfair balance between the parties. Wrongdoers can not be afforded the benefit of the doubt over non-offending parties. especially if the wrongdoers are habitual offenders.
The fraud has not stopped. It’s still ongoing.And the main reason why, is because the banks have not suffered any real consequences for their wrongdoings, which is another unfair advantage that borrowers don’t have (the ability to commit repeated acts of fraud without punishment). Borrowers would go to jail or be banned from court for committing the same acts, even once. So no matter what the law is, or what judges may say, the courts need to be reminded, the laws they keep referring to were made to be applied with the assumption of normal circumstances. The issues surrounding these foreclosure cases are not normal circumstances.
The doctrine of absurdity should be applied because it addresses the courts ability to stray from strictly construing laws in any such circumstances, like these. It’s a basically a way of saying, a judges common sense should guide them when applicable, not the law. And any judge who can’t see what’s going on after 10 years of bullshit is not fit to be a judge anyway.
One more thing. Just because a judge makes a decision or ruling doesn’t mean it’s final. Decisions can be voided. And I’ve seen plenty of them in the last 10 years that qualify as void. Don’t be afraid to fight aggressively and stand up to these cornholes. Many of them know what they’re doing is wrong, they just don’t think that you know it.
If you’re fighting a bank like JP Morgan Chase, it’s even easier, because their arrogance has provided more than enough evidence to warrant the courts caution. Gather all the evidence of fraud and wrongdoing you can, and present it to the court as evidence of unusual circumstances, which allows the court to part from the normal rules and procedures.
By presenting it that way, you back judges into a corner they can’t get out of. The court has to assure you’re protected from habitual offenders. If not, than the higher courts will overturn their rulings, because it would defy common sense to allow someone to become a victim in court, especially if evidence of that possibility went ignored.
Don’t forget, these aren’t just bank employees. These are lawyers committing crimes to steal homes. Both the banks and lawyers possess special knowledge which they are misusing to their advantage. That means something. It’s a big deal. And lawyers have a duty of candor. Don’t forget, many of the robo-signers are lawyers working at foreclosure mills. If one of these mill firms goes into court knowing problems exist, they violate their duties of candor and ethics.
Quality loans is one of the worst. They are basically McCarthy & Holthus, and Holthus, who is Vice Chairman of Cornerstone Bank, is using it for fraudulent purposes. Both of those lawyers are involved in things that are beyond legal. They have no idea what attacking innocent Americans has brought their way.
Reblogged this on AXJ USA NEWS.
I desperately needsomehelp with mortgage fraud and preditory lending it’s clear and obviouse
I need to know what to file next how to proceed